HOMEBASE
[LETTERHEAD]
April 29, 1994
CHICO CROSSROADS CENTER
c/o Commercial Management and Development
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: LEASE DATED APRIL 19, 1988, ▇▇▇▇▇▇▇▇▇▇▇ REFERRED TO AS THE "LEASE", BY AND
BETWEEN HOMECLUB, INC., AS TENANT, AND ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, AS LANDLORD,
FOR PREMISES LOCATED AT ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ HEREINAFTER
REFERRED TO AS THE "DEMISED PREMISES".
Dear Sir or Madam:
Reference is hereby made to the above-referenced Lease, as same has been amended
by that First Amendment to HomeClub, Inc. Shopping Center Lease dated July 1,
1991, and that Second Amendment to Shopping Center Lease dated January 31, 1994.
Waban Inc. is the successor in interest to the Tenant's interest in the Lease,
and Chico Crossroads Center is the successor in interest to the Landlord's
interest in the Lease.
Landlord has requested that Tenant waive certain restrictions contained in the
Lease and approve a minor site plan modification to allow the development of an
Office Depot within the shopping center of which the Demised Premises forms a
part.
Tenant, therefore, agrees as follows so long as an Office Depot is constructed
within the space shown as Buildings "F" and "G" on the site plan attached hereto
as Exhibit A:
1. The restriction contained in Paragraph 9 of Schedule B of Lease,
which prohibits any canopy or parapet of a store to exceed 30 feet in
height, is waived with respect to Office Depot. Office Depot shall
be allowed to build its store front with a maximum height of 32 feet
in accordance with Exhibit B attached hereto.
Chico Crossroads Center
April 29, 1994
Page 2 of 2
2. Landlord may, within the area shown upon Exhibit A and labeled
"Parking To Be Modified", modify the site plan. The modification
consists of the elimination of two (2) parking stalls, and the
relocation of a planter in accordance with the detail drawing
attached hereto as Exhibit C.
Except as expressly stated herein the Lease remains unmodified and in full
force.
Sincerely,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
HJZ:jg
cc: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
SECOND AMENDMENT TO HOMECLUB, INC.
SHOPPING CENTER LEASE
This Second Amendment to Homeclub, Inc. Shopping Center Lease ("Second
Amendment") is dated January 31, 1994, and is between CHICO CROSSROADS CENTER, a
California limited partnership (hereinafter referred to as "CCC"), as Landlord,
and WABAN INC., a Delaware corporation ("Waban"), a successor-in-interest to
Homeclub, Inc., a Delaware corporation (hereinafter referred to as "HC"), as
Tenant. CCC and Waban are hereinafter collectively referred to as the
"Parties".
RECITALS
A. HC has heretofore entered into a Lease titled Homeclub, Inc. Shopping
Center Lease, dated June 6, 1988 (the "Lease"), wherein HC leased from
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, certain premises more particularly described within
said Lease. Said premises are further described within the Short Form
Lease recorded June 10, 1988 in Butte County, California, under Recorder
Serial Number 88-18605.
▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, is designated as Landlord under the Lease, and did
assign Landlord's interest under the Lease to Pacific Quadrant Development
Co., a California general partnership, by Assignment and Assumption
Agreement dated June 2, 1988 recorded June 10, 1988 in Butte County,
California under Recorder Serial Number 88-018600 Pacific Quadrant
Development Corporation assigned the Landlord's interest under the Lease
to Pacifice Quadrant Chico, a California general partnership ("PQ-C"), by
an Assignment and Assumption Agreement dated January 1, 1989 recorded
January 10, 1989 in Butte County, California under Recorder Serial
Number 88-00933.
C. Thereafter, PQ-C did assign Landlord's interest under the Lease to First
Interstate Bank of California ("FICAL"), and FICAL did assign Landlord's
interest under the Lease to CCC.
▇. ▇▇▇▇▇, as successor in interest to HC and Landlord, have heretofore
entered into the First Amendment to Homeclub, Inc. Shopping Center Lease
dated July 2, 1991 ("First Amendment").
E. CCC as present Landlord under the Lease and ▇▇▇▇▇ as successor to HC as
the Tenant under the Lease desire to amend the Lease as set forth herein
below.
Second Amendment
Page 2
NOW, THEREFORE, CCC as Landlord under the Lease and ▇▇▇▇▇ as successor to
HC as Tenant under the Lease do agree as follows:
1. REVISION OF LEASE PLAN:
Landlord has entered into or will soon enter into leases with Circuit
City Stores, Inc. ("Circuit City Lease") and Petco Animal Supplies, Inc. ("Petco
Lease") which provide among other things for the construction of stores of
approximately 23,014 square feet for Circuit City Stores, Inc. ("Circuit City
Store") and 8,500 square feet for Petco Animal Supplies, Inc. ("Petco Store").
To accomplish the construction of the Circuit City Store, Landlord will (i)
demolish the buildings shown as Building "C" and Building Pad "3" on Lease Plan
Revision 1 to the First Amendment and (ii) pave over and stripe for parking the
areas shown as Building Pad 3 and Pad 2 on Lease Plan Revision 1. Attached
hereto as Exhibit "A" is a new site plan for the Shopping Center (the "New Site
Plan") which reflects the modifications to Lease Plan Revision 1. Landlord and
Tenant hereby approve the New Site Plan as the "Lease Plan" for all purposes of
the Lease. In each instance wherein the Lease, the First Amendment or the
Second Amendment makes reference to the Lease Plan, such reference shall be
deemed to refer to the New Site Plan attached hereto as Exhibit "A".
2. LIMITED WAIVER OF RESTRICTION OF PARAGRAPH 9 OF SCHEDULE B:
Landlord and ▇▇▇▇▇▇ agree to waive the application of Paragraph 9 of
Schedule B to the Lease as follows:
(a) The restriction on parapet height and signage as set forth in
clauses (A), (B), (C) and (D) of Paragraph 9 of Schedule B shall not be
applicable to a Circuit City Store or Petco Store initially constructed within
the building envelopes as shown on Exhibit "A" attached hereto, provided said
store(s) initially conform(s) to the elevations attached hereto as Exhibit "B"
and incorporated herein by this reference.
(b) The restriction on store size in clause (G) of Paragraph 9 of
Schedule B shall not be applicable to floor area constructed within the building
envelopes designated as the Circuit City Store on Exhibits "A". The restriction
on store size set forth in clause (H) of Paragraph 9 of Schedule B shall not be
applicable to the floor area constructed within the building envelope designated
as the Petco Store on Exhibit "A" attached hereto.
(c) The parties hereto expressly acknowledge that a condition to the
effectiveness of the waivers contained in this Paragraph 2 will be the
elimination of the building envelope designated as Pad Building 2 on Lease Plan
Rev. 1 and the demolition of Pad Building 3 shown on Lease Plan Rev. 1 and the
replacement thereon with parking as shown on Exhibit "A" attached hereto. The
parties acknowledge that the building envelopes for Building Pad 3 and Pad 2 as
shown on Lease Plan Revision 1 shall be completely eliminated effective upon the
completion of construction of the Circuit City Store.
Second Amendment
Page 3
3. SECOND AMENDMENT TO SHORT FORM LEASE:
The parties hereto agree to execute a Second Amendment to Short Form
of Lease for recordation indicating the Commencement Date of the Lease, the date
for Commencement of Rent under the Lease and for the further purpose of
providing notice of this Second Amendment.
4. CONDITION.
This Second Amendment shall not become effective until the Consent by
Guarantor set forth below is executed by the TJX Companies, Inc. (formerly known
as Zayre Corp.), a Delaware corporation. This condition may be waived, however,
by the Landlord under the Lease by giving written notice of such waiver to the
Tenant within sixty (60) days of the date of this Second Amendment, in which
event this Second Amendment shall become effective without the consent of The
TJX Companies, Inc.
5. CONFIRMATION OF LEASE AS AMENDED:
Except as expressly modified/supplemented herein, the Lease as
amended by the First Amendment shall continue in full force and effect. In the
event of a conflict between this Second Amendment and the Lease as amended by
the First Amendment, this Second Amendment shall prevail.
(SIGNATURES ON THE FOLLOWING PAGE)
Second Amendment
Page 4
The Parties hereby confirm the Lease as amended by the Second
Amendment.
CHICO CROSSROADS CENTER, a
California limited partnership
By: JMLB, Inc., a California
corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
President
WABAN INC., A Delaware
corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Its: Vice President-Finance
-----------------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Its: Senior Vice President
-----------------------
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On the 21st day of MARCH, 1994, before me, the undersigned a Notary Public,
in and for said State and County, personally appeared ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the President, and - , know to me (or proved to me on the basis of
satisfactory evidence) to the President of JMLB, INC., a California corporation,
known to me to be the persons who executed the within instrument on behalf of
said corporation, said corporation being known to me to be a general partner of
CHICO CROSSROADS CENTER, a California limited partnership, and acknowledged to
me that said corporation executed the same as such partner pursuant to its
bylaws or a resolution of its board of directors and that such limited
partnership executed the same.
WITNESS my hand and official seal.
[seal] /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Notary Public
COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF MIDDLESEX )
On the 11th day of March, 1994, before me, the undersigned a Notary Public,
in and for said State and County, personally appeared ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the persons who executed the within instrument as
the Senior Vice President and Vice President-Finance, on behalf of WABAN Inc. a
Delaware corporation, the corporation therein named, and acknowledged to me that
such corporation executed the within instrument pursuant to its bylaws or a
resolution of its board of directors.
WITNESS my hand and official seal.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Notary Public
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Notary Public
My Commission expires February 17, 2000
FIRST AMENDMENT TO HOMECLUB, INC. SHOPPING CENTER LEASE
This First Amendment to Homeclub, Inc. Shopping Center Lease ("First Amendment")
is dated _________________ 1991, and is between PACIFIC QUADRANT - CHICO, a
California general partnership (hereinafter referred to as "PQ-C") as Landlord,
and WABAN, INC., a Delaware corporation, a successor in interest to Homeclub,
Inc., a Delaware corporation, (hereinafter referred to as "HC") as Tenant. PQ-C
and HC are hereinafter collectively referred to as the "Parties".
RECITALS
A. HC has heretofore entered into a Lease titled Homeclub, Inc. Shopping
Center Lease, dated June 6, 1988 ( the "Lease"), wherein HC leases from ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, certain premises more particularly described within said Lease.
Said premises are further described within the Short Form Lease recorded
June 10, 1988 in Butte County, California under Recorder Serial Number 88-18605.
▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, is designated as Landlord under the Lease, and did
assign Landlord's interest under the Lease to Pacific Quadrant Development Co.,
a California general partnership, by Assignment and Assumption Agreement dated
June 2, 1988 recorded June 10, 1988 in Butte County, California, under Recorder
Serial
1
Number 88-018600. PQ-C did acquire the Landlord's interest under the Lease
pursuant to an Assignment and Assumption Agreement dated January 1, 1989
recorded January 10, 1989 in Butte County, California under Recorder Serial
Number 89-00933.
C. PQ-C as the present Landlord under the Lease and HC as the Tenant under the
Lease desire to amend the Lease.
NOW THEREFORE, PQ-C as Landlord under the Lease and HC as Tenant under the Lease
do agree as follows:
1. COMMENCEMENT DATE:
The Parties agree and confirm that the Commencement Date as defined within
Article IV of the Lease is November 17, 1988.
2. REVISION OF LEASE PLAN:
Attached hereto and incorporated by reference is Lease Plan (Rev. 1). In
each instance wherein the Lease or this First Amendment makes reference to the
"Lease Plan" such reference shall be deemed to refer to the Lease Plan (Rev. 1).
2
3. SHOPPING CENTER PARKING AREAS:
The last two sentences of Paragraph 2 of Schedule B to the Lease are amended
in their entirety to read as follows:
"Landlord agrees that the Parking Areas within the Shopping Center will
always contain at least (3.50) parking spaces, and driveways and footways
incidental thereto, for each one thousand (1,000) square feet of floor area in
the Shopping Center and, in any event, not less than 924 such spaces or such
greater number of spaces as may be required by an applicable governmental
regulation, code, special use or other zoning permit. Landlord specifically
agrees that the Parking Areas shown on the Lease Plan as Phase 1 will always
contain 427 parking spaces (at least 366 in front of the building, including at
least 320 spaces for so-called standard-size American automobiles, and no more
than forty-six (46) spaces for so-called compact size automobiles) and driveways
and footways incidental thereto, or such greater number of spaces as may be
required by any applicable governmental regulation code, special use or other
zoning permit.
4. SHOPPING CENTER PYLON SIGNS
Paragraph 3 of Schedule B to the Lease is amended in its entirety to read
as follows:
"Landlord's Construction Work" as defined in Section 3.1 shall
3
include without limitation the construction by Landlord of two Shopping Center
identification pylon signs, including without limitation, the base, utilities
service therefor and all other appurtenances thereto, all collectively referred
to as the "Pylon Signs". The location of the Pylon Signs will be as set forth
upon the Lease Plan. That Pylon Sign at location indicated upon the Lease Plan
adjacent to on-ramp to Highway 99 is hereinafter referred to as the "Freeway
Pylon Sign" and the Pylon sign indicated at location adjacent to 20th Street
near the intersection of 20th Street and ▇▇▇▇▇▇▇ Avenue is hereinafter referred
to as the "20th Street Pylon Sign". Each Pylon sign shall be limited to the
identification of not more than three (3) occupants conducting business within
the Shopping Center. Tenant shall have the right to install, and thereafter
maintain, its identification panel, and all appurtenances thereto, upon the 20th
street Pylon Sign. Tenant's location and so-called "billing" thereon shall be
superior to all other persons. Landlord shall cooperate with Tenant in
obtaining all permits as shall be required by law and all consents required by
any other persons for the installation of Tenant's identification panel upon the
20th Street Pylon Sign. Landlord shall be entitled to offer the second position
located below that of Tenant herein for identification of the Market occupying
Building D as shown upon the Lease Plan. The remaining Tenant identification
locations upon the 20th Street Pylon Sign including the second location should
the market decline such space, and the
4
Freeway Pylon Sign may be utilized as designated by Landlord for the
Identification of Tenants and/or owner-occupants conducting business within the
Shopping Center subject to the before referenced limitation of not more than
three (3) identified businesses per Pylon Sign".
In the event that Tenant assigns or sublets all or any portion of the
Demised Premises to any other party, including any affiliate of Tenant, then
Tenant, or its assignee or sublessee, shall also, upon 60 days" written notice
to Landlord, have the right to install, and thereafter maintain, its
identification panel and all appurtenances thereto, upon the Freeway Pylon Sign
and Tenant's (or its assignee's or sublessee's) location and so-called "billing"
thereon shall be superior to all other persons. Landlord shall cooperate with
Tenant in obtaining all permits as shall be required by laws and all consents
required by any other persons for the installation of Tenant's identification
panel on the Freeway Pylon Sign.
5. FIRST AMENDMENT TO SHORT FORM LEASE
The parties hereto agree to execute a First Amendment to Short Form of
Lease for recordation indicating the Commencement Date of the Lease and for the
further purpose of providing notice of this First Amendment.
5
6. CONFIRMATION OF LEASE AS AMENDED
The Parties hereby confirm the Lease as amended by the First Amendment.
PACIFIC QUADRANT - CHICO
a California general partnership
BY: THE QUADRANT CORPORATION
a Washington Corporation, General Partner
By: ___________________________________________
Its: ___________________________________________
WABAN, INC.
a Delaware corporation
By: _________________________________________________
Its: ____________________________________________
By: _________________________________________________
Its: ____________________________________________
6
[MAP]
88-018601 Rec Fee 11.00
Total 11.00
Recorded
RECORDING REQUESTED BY Official Records
AND WHEN RECORDED, MAIL TO: County of
Butte
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Pacific Quadrant Development Co. Recorder
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., Ste. 65 3:36pm 10-Jun-88 JJ 4
Walnut Creek, CA 94596
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ )
)
)
___________________________________ )
NOTICE OF ASSIGNMENT AND ASSUMPTION
THIS NOTICE, dated as of June 8, 1988, is to advise all persons and
entities that PACIFIC QUADRANT DEVELOPMENT COMPANY, a California general
partnership ("Landlord"), has become the Landlord under the three (3) leases
described below, which relate to that certain real property located in Chico,
California, more particularly described in Exhibit "A," which is attached
hereto and incorporated herein. Landlord acquired its right, title and
interest in the following leases and assumed the obligations set forth
therein, by means of an Assignment and Assumption Agreement from ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ ("Assignor") dated as of June 8, 1988.
The three (3) leases include:
1. The Shopping Center Lease between Assignor and HomeClub, Inc., dated
as of June 6, 1988;
2. The Build and Lease Agreement between Assignor and Netco Foods,
Inc., dated as of May 25, 1988; and
3. The Lease Agreement between Assignor and Pay Less Drug Stores
Northwest, Inc., dated as of May 23, 1988.
The complete terms, covenants and conditions of said leases assigned to
Landlord and assumed by Landlord are set forth in said leases. Furthermore, a
Memorandum of Lease has been recorded for each of said leases under the name
of Assignor.
1.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ has caused this Notice of Assignment and
Assumption to be executed as of the date first set forth above.
PACIFIC QUADRANT DEVELOPMENT COMPANY
a California general partnership
By: Pacific RIM Development
Corporation, a California
corporation, Managing General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Senior Vice President-
Operations
2.
EXHIBIT "A"
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE STATE OF CALIFORNIA, COUNTY
OF BUTTE, CITY OF CHICO, DESCRIBED AS FOLLOWS:
LOT 4, AS SHOWN ON THAT CERTAIN MAP ENTITLED, "CHICO INDUSTRIAL SUBDIVISION,"
WHICH MAP WAS RECORDED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF BUTTE,
STATE OF CALIFORNIA, ON JULY 6, 1965, IN BOOK 34 OF MAPS, AT PAGE(S) 7, 8 AND
9.
EXCEPTING THEREFROM THAT PORTION DEEDED TO THE STATE OF CALIFORNIA, BY DEED
RECORDED SEPTEMBER 27, 1974, IN BOOK 1941, PAGE 219, OFFICIAL RECORDS.
ALSO EXCEPTING ALL MINERALS, OIL, GAS AND OTHER HYDROCARBON SUBSTANCES BELOW
A DEPTH OF 500 FEET AND ALL GEOTHERMAL RIGHTS BELOW A DEPTH OF 250 FEET OF
SAID REAL PROPERTY WITHOUT THE RIGHT OF SURFACE ENTRY.
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE STATE OF CALIFORNIA, COUNTY OF
BUTTE, CITY OF CHICO, DESCRIBED AS FOLLOWS:
LOT 9, AS SHOWN ON THAT CERTAIN MAP ENTITLED, "CHICO INDUSTRIAL SUBDIVISION,"
WHICH MAP WAS RECORDED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF BUTTE,
STATE OF CALIFORNIA, ON JULY 6, 1965, IN BOOK 34 OF MAPS, AT PAGE(S) 7, 8 AND
9.
EXCEPTING THEREFROM THAT PORTION DEEDED TO THE STATE OF CALIFORNIA, BY DEED
RECORDED SEPTEMBER 27, 1974, IN BOOK 1941, PAGE 219, OFFICIAL RECORDS.
ALSO EXCEPTING ALL MINERALS, OIL, GAS AND OTHER HYDROCARBON SUBSTANCES BELOW
A DEPTH OF 500 FEET AND ALL GEOTHERMAL RIGHTS BELOW A DEPTH OF 250 FEET OF
SAID REAL PROPERTY WITHOUT THE RIGHT OF SURFACE ENTRY.
ALSO EXCEPTING THEREFROM THOSE PORTIONS DEEDED TO THE CITY OF CHICO, BY DEEDS
RECORDED APRIL 28, 1980, IN BOOK 2510, PAGE 195, OFFICIAL RECORDS, AND
RECORDED MAY 15, 1980, IN BOOK 2515, PAGE 276, OFFICIAL RECORDS.
STATE OF CALIFORNIA )
) ss.
COUNTY OF CONTRA COSTA )
On this 10th day of June, 1988, before me, a Notary Public in and for
said State, duly commissioned and sworn, personally appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, known to me (or proved to me on the basis of satisfactory evidence)
to be the Senior Vice President-Operations of Pacific RIM Development
Corporation, a California corporation, Managing General Partner of Pacific
Quadrant Development Company, a California general partnership, and the
officer executing the within instrument who acknowledged to me that such
corporation executed the within instrument pursuant to its by-laws or a
resolution of its board of directors and that the partnership executed the
same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal on the date in this certificate first above written.
/s/ ▇▇▇▇ ▇▇▇▇▇▇
(SEAL) --------------------------------------
NOTARY PUBLIC
3.
88-01960 | Rec Fee 15.00
| Total 15.00
RECORDING REQUESTED BY Recorded |
AND WHEN RECORDED, MAIL TO: Official Records |
County of | Pacific Quad.
Pacific Quadrant Development Co. Butte |
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
Walnut Creek, CA 94596 3:35pm 10-Jun-88 | JJ 6
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
)
)
Order No. 96705 )
------------------------------
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AGREEMENT, dated as of JUNE 2, 1988, is made by and between ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ ("Assignor") and PACIFIC QUADRANT DEVELOPMENT COMPANY, a
California general partnership ("Assignee").
RECITALS:
▇. ▇▇▇▇▇▇▇▇ has entered into an Agreement of Purchase and Sale and
Joint Escrow Instructions with Park Springfield, Ltd., a California limited
partnership, dated March 25, 1988, and three (3) amendments thereto, for the
purchase of 11.231 acres of land in Chico, California, more particularly
described in said Agreement. In addition, Assignor has entered into an
Option Agreement with Park Springfield, Ltd., dated March 25, 1988, for the
purchase of 9.68 acres of land in Chico, California, more particularly
described in said Option Agreement. These agreements are collectively
referred to as the "Purchase Agreement."
▇. ▇▇▇▇▇▇▇▇ and Assignee, in contemplation of acquiring the Property,
have jointly prepared a Development Plan. In furtherance of said plan,
Assignor has: (i) entered into contracts with, and obtained work product of,
engineers, architects, surveyors, contractors and consultants; and (ii)
obtained, or applied for, governmental permits, licenses, approvals and
variances ((i) and (ii) are referred to herein collectively as the
"Development Materials" and are listed in their entirety in Exhibit "A"
hereto). Assignor has also entered into lease negotiations with The Home
Club, Food 4 Less Markets and Payless Drugstores (collectively the "Major
Tenant Leases"). The Purchase Agreement, Development Plan, Development
Materials, Major Tenant Leases, and any and all other rights relating to the
acquisition, development, construction and leasing of the Project in
accordance with the Development Plan (except as set forth in the Assignment,
Assumption and Option Agreement of even date herewith and in the Project
Management Agreement of even date
1.
herewith) are collectively referred to herein as the "Assignment Property."
C. Assignee desires to acquire all of Assignor's right, title and
interest in the Assignment Property.
NOW, THEREFORE, for valuable consideration, the receipt of which is
hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. RECITALS. The foregoing recitals are true and correct.
2. ASSIGNMENT AND ASSUMPTION. Assignor hereby grants, assigns,
transfers and delivers to Assignee all of his right, title and interest in
and to the Assignment Property. Assignee hereby accepts said assignment from
Assignor, assumes all obligations set forth in the Assignment Property listed
in Exhibit A, and agrees to be bound by all of the terms and conditions set
forth in the Assignment Property listed in Exhibit A from and after the
effective date of this Agreement. Assignee acknowledges that Assignor shall
have no further obligations, liabilities or responsibilities with respect to
the Assignment Property after the effective date of this Agreement, except as
set forth in the Project Management Agreement and/or the Assignment,
Assumption and Option Agreement and except for contracts not set forth in
Exhibit A which would individually or in the aggregate impose additional
obligations upon Pacific Quadrant of more than Twenty-Five Thousand Dollars
($25,000).
3. REIMBURSABLE EXPENSES. Assignee hereby assumes Assignor's
obligations to pay the unpaid expenses relating to the acquisition or
preparation of the Assignment Property, as set forth in and limited by
Section 3.1 of the Assignment, Assumption and Option Agreement (collectively
the "Reimbursable Expenses"). Assignee hereby agrees to pay all Reimbursable
Expenses on or before their due dates.
4. MUTUAL INDEMNIFICATIONS. Assignor hereby agrees to indemnify
Assignee, hold it harmless, defend and protect it from and against any and
all claims, demands, damages, losses, liabilities, liens, lawsuits and other
proceedings, together with all costs and expenses thereof (including, without
limitation, reasonable attorneys fees and court costs) arising from or
connected with any act or omission with respect to the Assignment Property
occurring prior to the effective date of this Agreement, except for items not
listed in Exhibit A and except as set forth in Section 3 above. Assignee
hereby agrees to indemnify Assignor, hold his harmless, defend and protect
him from and against any and all claims, demands, damages, losses,
liabilities, liens, lawsuits and other proceedings, together with all costs
and expenses thereof (including, without limitation, reasonable attorneys
fees and court costs) arising from or connected with any act or omission with
respect to the Assignment Property occurring on or after the effective date
of this Agreement, including,
2.
without limitation, payment of the Reimbursable Expenses on or before their due
date.
5. GENERAL PROVISIONS. All Exhibits attached to this Agreement are
incorporated herein by reference. This Agreement shall be governed by and
construed in accordance with the laws of the State of California. It shall
be binding upon and shall inure to the benefit of the parties hereto and
their respective heirs, personal representatives, successors and assigns. In
the event that any lawsuit is initiated to interpret or enforce the terms of
this Agreement, the prevailing party shall be entitled to an award of
reasonable attorneys' fees and court costs.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement
as of the date first written above.
PACIFIC QUADRANT DEVELOPMENT COMPANY
a California general partnership
By: Pacific RIM Development
Corporation, a California
corporation, Managing General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Senior Vice President-
Operations
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ His Attorney-In-Fact
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Attorney in fact
3.
STATE OF CALIFORNIA )
)ss.
COUNTY OF CONTRA COSTA )
On this 10 day of June, 1988, before me, a Notary Public in and for said
State, duly commissioned and sworn, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
known to me (or proved to me on the basis of satisfactory evidence) to be the
Senior Vice President-Operations of Pacific RIM Development Corporation, a
California corporation, Managing General Partner of Pacific Quadrant
Development Company, a California general partnership, and the officer
executing the within instrument who acknowledged to me that such corporation
executed the within instrument pursuant to its by-laws or a resolution of its
board of directors and that the partnership executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal on the date in this certificate first above written.
[SEAL] /s/▇▇▇▇ ▇▇▇▇▇▇
-------------------
NOTARY PUBLIC
STATE OF CALIFORNIA )
)ss.
COUNTY OF CONTRA COSTA )
On this 10 day of June, 1988, before me, a Notary Public in and for
said State, duly commissioned and sworn, personally appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument as the
attorney-in-fact of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and acknowledged to me that he
subscribed the name of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as principal, and his own
name as attorney-in-fact.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal on the date in this certificate first above written.
[SEAL] /s/▇▇▇▇ ▇▇▇▇▇▇
-------------------
NOTARY PUBLIC
4.
|
88-018605 | Rec Fee 19.00
RECORDING REQUESTED BY: Recorded | Total 19.00
AND WHEN RECORDED MAIL TO: OFFICIAL RECORDS |
County of |
Butte | Pacific Quad.
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
▇▇▇▇▇▇ & ▇▇▇▇▇▇ Recorder |
2049 CenturY Park East 3:39pM 10-Jun-88 | JJ 8
Suite 3400
Los Angeles, California 90067 TRANSFER
TAX PAID X
Order No. 96705
AP# 005-56-0-008-0
005-55-0-014-0
SHORT FORM OF LEASE
THIS SHORT FORM OF LEASE executed this 6th day of June, 1988, by and
between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (hereinafter referred to as "Landlord"), whose
address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and HOMECLUB,
INC., a Delaware corporation (hereinafter referred to as "Tenant"), whose
address is ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
WITNESSETH:
That for and in consideration of the covenants and agreements contained
in that certain Lease dated June 6th, 1988 (the "Lease"), Landlord does
hereby demise and lease unto Tenant, and Tenant does hereby lease from
Landlord that certain real property in the City of Chico, County of Butte,
State of California, within the shopping center (the "Shopping Center")
situated at the intersection of ▇▇▇▇▇▇▇ Avenue and 20th Street, more
particularly described on Exhibit "A" attached hereto and by this reference
incorporated herein (the "Demised Premises").
TO HAVE AND TO HOLD the Demised Premises effective from the Commencement
Date as defined in the Lease for a period of twenty (20) years, and
containing four (4) five (5) year options to renew the Lease, upon the terms
and conditions contained in the Lease.
IT IS UNDERSTOOD AND AGREED that this Short Form of Lease is executed
solely for the purpose of giving notice to the public of the existence of the
Lease against the Demised Premises, the terms and conditions of which are
expressly incorporated herein by reference for all purposes as though fully
set forth herein. Should there be
1
any inconsistency between the terms of this instrument and the Lease
incorporated herein, the terms of said incorporated Lease shall prevail.
IN WITNESS WHEREOF, the parties hereto have executed this Short Form of
Lease as of the day and year first above written.
LANDLORD:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
an individual
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
TENANT:
HOMECLUB, INC., a Delaware
corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------
▇▇▇▇ ▇▇▇▇▇▇
Its: /s/ President
--------------
President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: /s/ Vice President
----------------------
Vice President
2
[GRAPH]
[GRAPH]
[MAP]
88-18605
EXHIBIT "B"
DESCRIPTION
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE STATE OF CALIFORNIA, COUNTY OF
BUTTE, CITY OF CHICO, DESCRIBED AS FOLLOWS:
PARCEL A:
LOT 4, AS SHOWN ON THAT CERTAIN MAP ENTITLED, "CHICO INDUSTRIAL SUBDIVISION",
WHICH MAP WAS RECORDED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF BUTTE,
STATE OF CALIFORNIA, ON JULY 6, 1965, IN BOOK 34 OF MAPS, AT PAGE(S) 7, 8
AND 9.
EXCEPTING THEREFROM THAT PORTION DEEDED TO THE STATE OF CALIFORNIA, BY DEED
RECORDED SEPTEMBER 27, 1974, IN BOOK 1941, PAGE 219, OFFICIAL RECORDS.
ALSO EXCEPTING ALL MINERALS, OIL, GAS AND OTHER HYDROCARBON SUBSTANCES BELOW
A DEPTH OF 500 FEET AND ALL GEOTHERMAL RIGHTS BELOW A DEPTH OF 250 FEET OF
SAID REAL PROPERTY WITHOUT THE RIGHT OF SURFACE ENTRY.
CONTINUED ON NEXT PAGE
88-18605
EXHIBIT "B" CONTINUED
PARCEL B:
LOT 9, AS SHOWN ON THAT CERTAIN MAP ENTITLED, "CHICO INDUSTRIAL SUBDIVISION",
WHICH MAP WAS RECORDED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF BUTTE,
STATE OF CALIFORNIA, ON JULY 6, 1965, IN BOOK 34 OF MAPS, AT PAGE(S) 7, 8
AND 9.
EXCEPTING THEREFROM THAT PORTION DEEDED TO THE STATE OF CALIFORNIA, BY DEED
RECORDED SEPTEMBER 27, 1974, IN BOOK 1941, PAGE 219, OFFICIAL RECORDS.
ALSO EXCEPTING ALL MINERALS, OIL, GAS AND OTHER HYDROCARBON SUBSTANCES BELOW
A DEPTH OF 500 FEET AND ALL GEOTHERMAL RIGHTS BELOW A DEPTH OF 250 FEET OF
SAID REAL PROPERTY WITHOUT THE RIGHT OF SURFACE ENTRY.
ALSO EXCEPTING THEREFROM THOSE PORTIONS DEEDED TO THE CITY OF CHICO, BY DEEDS
RECORDED APRIL 28, 1980, IN BOOK 2510, PAGE 195, OFFICIAL RECORDS, AND
RECORDED MAY 15, 1980, IN BOOK 2515, PAGE 276, OFFICIAL RECORDS.
88-18605
STATE OF CALIFORNIA *
COUNTY OF ORANGE *
BEFORE ME, the undersigned authority, a Notary Public in and for said
County and State, on this day personally appeared ▇▇▇▇ ▇▇▇▇▇▇, known to me to
be the President of HOMECLUB, INC., a Delaware corporation, known to me to be
the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and
consideration therein expressed, in the capacity therein stated, and as the
act and deed of said Corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE on this 13th day of May, 1988.
[SEAL] /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------
NOTARY PUBLIC FOR THE STATE
OF CALIFORNIA
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
Notary's Printed Name
My Commission Expires: 3/31/89
COMMONWEALTH OF MASSACHUSETTS*
COUNTY OF MIDDLESEX *
BEFORE ME, the undersigned authority, a Notary Public in and for said
County and State, on this day personally appeared ▇▇▇▇▇ ▇▇▇▇▇▇▇, known to me
to be the Vice-President of HOMECLUB, INC., a Delaware corporation, known to
me to be the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and
consideration therein expressed, in the capacity therein stated, and as the
act and deed of said Corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE on this 7th day of June, 1988.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
NOTARY PUBLIC FOR THE COMMONWEALTH
OF MASSACHUSETTS
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------- [SEAL]
Notary's Printed Name
My Commission Expires: 6-12-92
88-18605
State of California ) On this 25th day of April 1988, before me,
) ss. /s/ ▇▇▇▇ ▇▇▇▇▇▇
County of Contra ▇▇▇▇▇) -----------------------------------------
the undersigned Notary Public personally
appeared
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
/x/ personally known to me
/ / proved to me on the basis of
satisfactory evidence to be the
[SEAL] person(s) whose name(s) he subscribed
to the within instrument, and
acknowledged that he executed it.
WITNESS my hand and official seal.
/s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Notary's Signature
88-18605
(Home Club Exhibit)
EXHIBIT "A"
FOR DESCRIPTION OF ENTIRE SHOPPING CENTER, SEE EXHIBIT "B" ATTACHED HERETO
AND MADE A PART HEREOF.
The Demised Premises shall consist of a one-story building (the "Building"),
to be constructed by Landlord as provided in said lease, containing one
hundred three thousand nine hundred and nine (103,909) square feet of floor
area having a depth and width of two hundred eighty-one point four feet by
three hundred sixty-nine point four feet (281.4 x 369.4) and other dimensions
as shown upon the plan attached hereto ("the Lease Plan"), plus an exterior
nursery area containing nine thousand eight hundred and eighty (8,880) square
feet of floor area, all as shown on the Lease Plan. Said Lease Plan being
attached hereto and shown as Exhibit "C"
[MAP]
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Sidley & Austin
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SHORT FORM OF LEASE
THIS SHORT FORM OF LEASE executed this __ day of __________________,
198_, by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (hereinafter referred to as
"Landlord"), whose address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇, and HOMECLUB, INC., a Delaware corporation (hereinafter referred to as
"Tenant"), whose address is ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
WITNESSETH:
That for and in consideration of the covenants and agreements contained
in that certain Lease dated ____________, 198_ (the "Lease"), Landlord does
hereby demise and lease unto Tenant and Tenant does hereby lease from
Landlord that certain real property in the city of Chico, County of Butte,
State of California, within the shopping center (the "Shopping
Center") situated at the intersection of ▇▇▇▇▇▇▇ Avenue and 20th Street, more
particularly described on Exhibit "A" attached hereto and by this reference
incorporated herein (the "Demised Premises").
TO HAVE AND TO HOLD the Demised Premises effective from the Commencement
Date as defined in the Lease for a period of twenty (20) years, and
containing four (4) five (5) year options to renew the Lease, upon the terms
and conditions contained in the Lease.
IT IS UNDERSTOOD AND AGREED that this Short Form of Lease is executed
solely for the purpose of giving notice to the public of the existence of
the Lease against the Demised Premises, the terms and conditions of which are
expressly incorporated herein by reference for all purposes as though fully
set forth herein. Should there be
1
any inconsistency between the terms of this instrument and the Lease
incorporated herein, the terms of said incorporated Lease shall prevail.
IN WITNESS WHEREOF, the parties hereto have executed this Short Form of
Lease as of the day and year first above written.
LANDLORD:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
an individual
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
TENANT:
HOMECLUB, INC., a Delaware
corporation
By: /s/ [illegible]
---------------------------
Its: President
----------------------
By: /s/ [illegible]
---------------------------
Its: Vice President
----------------------
2
(Home Club Exhibit)
EXHIBIT "A"
FOR DESCRIPTION OF ENTIRE SHOPPING CENTER, SEE EXHIBIT "B" ATTACHED HERETO AND
MADE A PART HEREOF.
The Demised Premises shall consist of a one-story building (the "Building"),
to be constructed by Landlord as provided in said lease, containing one
hundred three thousand nine hundred and nine (103,909) square feet of floor
area having a depth and width of two hundred eighty-one point four feet by
three hundred sixty-nine point four feet (281.4 x 369.4) and other
dimensions as shown upon the plan attached hereto ("the Lease Plan"), plus an
exterior nursery area containing nine thousand eight hundred and eight
(9,880) square feet of floor area, all as shown on the Lease Plan. Said Lease
Plan being attached hereto and shown as Exhibit "C"
Exhibit "B"
DESCRIPTION
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE STATE OF CALIFORNIA, COUNTY OF
BUTTE, CITY OF CHICO, DESCRIBED AS FOLLOWS:
LOT 4, AS SHOWN ON THAT CERTAIN MAP ENTITLED, "CHICO INDUSTRIAL SUBDIVISION",
WHICH MAP WAS RECORDED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF BUTTE,
STATE OF CALIFORNIA, ON JULY 6, 1965, IN BOOK 34 OF MAPS, AT PAGE(S) 7, 8 AND
9.
EXCEPTING THEREFROM THAT PORTION DEEDED TO THE STATE OF CALIFORNIA, DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT WHICH IS THE INTERSECTION OF THE EAST LINE OF LOT 2, AS
SHOWN ON SAID MAP, WITH THE WESTERLY LINE OF STATE HIGHWAY ROUTE 99, SAID
POINT BEING DISTANT 90.00 FEET SOUTHWESTERLY MEASURED AT A RIGHT ANGLE FROM
THE BASE LINE AT ENGINEER'S STATION (C-1) 488+87.54 OF THE DEPARTMENT OF
PUBLIC WORKS SURVEY ON ROAD 03-BUT-99 FROM POST MILE 30.0 TO 37.3; THENCE
FROM SAID POINT OF BEGINNING NORTH 32 DEG. 24' 21" WEST, 718.93 FEET; THENCE
ALONG A TANGENT CURVE TO THE LEFT, HAVING A RADIUS OF 2940.00 FEET, THROUGH
AN ANGLE OF 2 DEG. 25' 14", AN ARC DISTANCE OF 124.21 FEET TO A POINT OF
COMPOUND CURVE; THENCE ON A CURVE TO THE LEFT, WITH A RADIUS OF 815.00 FEET,
THROUGH AN ANGLE OF 25 DEG. 39' 46", AN ARC DISTANCE OF 365.04 FEET; THENCE
NORTH 60 DEG. 29' 31" WEST, 603.28 FEET; THENCE NORTH 85 DEG. 37' 47" WEST,
152.81 FEET; THENCE SOUTH 80 DEG. 00' 30" WEST, 188.24 FEET TO A POINT ON THE
SOUTH LINE OF 20TH STREET, AS SHOWN ON SAID MAP OF "CHICO INDUSTRIAL PARK";
THENCE ALONG SAID SOUTH LINE OF 20TH STREET ON A CURVE TO THE LEFT, TANGENT
TO A LINE BEARING NORTH 79 DEG. 40' 52" EAST, HAVING A RADIUS OF 642.00 FEET,
THROUGH AN ANGLE OF 15 DEG. 22' 20", AN ARC DISTANCE OF 172.25 FEET; THENCE
CONTINUING ALONG SOUTH LINE OF 20TH STREET, SOUTH 30 DEG. 29' 31" EAST, 2.33
FEET; THENCE NORTH 68 DEG. 31' 52" EAST, 114.77 FEET; THENCE NORTH 64 DEG.
28' 40" EAST, 461.74 FEET TO THE INTERSECTION OF THE SOUTHERLY LINE OF SAID
20TH STREET WITH THE WESTERLY LINE OF STATE HIGHWAY ROUTE 99; THENCE ALONG
SAID WESTERLY LINE SOUTH 30 DEG. 29' 31" EAST, 1766.67 FEET TO THE POINT OF
BEGINNING.
ALSO EXCEPTING ALL MINERALS, OIL, GAS AND OTHER HYDROCARBON SUBSTANCES BELOW
A DEPTH OF 500 FEET AND ALL GEOTHERMAL RIGHTS BELOW A DEPTH OF 250 FEET OF
SAID REAL PROPERTY WITHOUT THE RIGHT OF SURFACE ENTRY.
ALSO EXCEPTING THEREFROM THOSE PORTIONS DEEDED TO THE CITY OF CHICO, BY DEEDS
RECORDED APRIL 26, 1980, IN BOOK 2510, PAGE 195, OFFICIAL RECORDS, AND
RECORDED MAY 15, 1980, IN BOOK 1515, PAGE 276, OFFICIAL RECORDS.
Exhibit A
- page 1 of 2 -
DESCRIPTION
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE STATE OF CALIFORNIA, COUNTY OF
BUTTE, CITY OF CHICO, DESCRIBED AS FOLLOWS:
LOT 9, AS SHOWN ON THAT CERTAIN MAP ENTITLED, "CHICO INDUSTRIAL SUBDIVISION"
WHICH MAP WAS RECORDED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF BUTTE,
STATE OF CALIFORNIA, ON JULY 6, 1965, IN BOOK 34 OF MAPS, AT PAGE(S) 7, 8 AND
9.
EXCEPTING THEREFROM THAT PORTION DEEDED TO THE STATE OF CALIFORNIA, DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT WHICH IS THE INTERSECTION OF THE EAST LINE OF LOT 2, AS
SHOWN ON SAID MAP, WITH THE WESTERLY LINE OF STATE HIGHWAY ROUTE 99, SAID
POINT BEING DISTANT 90.00 FEET SOUTHWESTERLY MEASURED AT A RIGHT ANGLE FROM
THE BASE LINE AT ENGINEER'S STATION (C-1) 488+87.54 OF THE DEPARTMENT OF
PUBLIC WORKS SURVEY ON ROAD 03-BUT-99 FROM POST MILE 30.0 TO 37.3; THENCE
FROM SAID POINT OF BEGINNING NORTH 32 DEG. 24' 21" WEST, 718.93 FEET; THENCE
ALONG A TANGENT CURVE TO THE LEFT, HAVING A RADIUS OF 2940.00 FEET, THROUGH
AN ANGLE OF 2 DEG. 25' 14", AN ARC DISTANCE OF 124.21 FEET TO A POINT OF
COMPOUND CURVE; THENCE ON A CURVE TO THE LEFT, WITH A RADIUS OF 815.00 FEET,
THROUGH AN ANGLE OF 25 DEG. 39' 46", AN ARC DISTANCE OF 365.04 FEET; THENCE
NORTH 60 DEG. 29' 31" WEST, 603.28 FEET; THENCE NORTH 85 DEG. 37' 47" WEST,
152.81 FEET; THENCE SOUTH 80 DEG. 00' 30" WEST, 188.24 FEET TO A POINT ON THE
SOUTH LINE OF 20TH STREET, AS SHOWN ON SAID MAP OF "CHICO INDUSTRIAL PARK";
THENCE ALONG SAID SOUTH LINE OF 20TH STREET ON A CURVE TO THE LEFT, TANGENT
TO A LINE BEARING NORTH 79 DEG. 40' 52" EAST, HAVING A RADIUS OF 642.00 FEET,
THROUGH AN ANGLE OF 15 DEG. 22' 20", AN ARC DISTANCE OF 172.25 FEET; THENCE
CONTINUING ALONG SOUTH LINE OF 20TH STREET, SOUTH 30 DEG. 29' 31" EAST, 2.33
FEET; THENCE NORTH 68 DEG. 31' 52" EAST, 114.77 FEET; THENCE NORTH 64 DEG.
28' 40" EAST, 461.74 FEET TO THE INTERSECTION OF THE SOUTHERLY LINE OF SAID
20TH STREET WITH THE WESTERLY LINE OF STATE HIGHWAY ROUTE 99; THENCE ALONG
SAID WESTERLY LINE SOUTH 30 DEG. 29' 31" EAST, 1766.67 FEET TO THE POINT OF
BEGINNING.
ALSO EXCEPTING ALL MINERALS, OIL, GAS AND OTHER HYDROCARBON SUBSTANCES BELOW A
DEPTH OF 500 FEET AND ALL GEOTHERMAL RIGHTS BELOW A DEPTH OF 250 FEET OF SAID
REAL PROPERTY WITHOUT THE RIGHT OF SURFACE ENTRY.
ALSO EXCEPTING THEREFROM THOSE PORTIONS DEEDED TO THE CITY OF CHICO, BY DEEDS
RECORDED APRIL 28, 1980, IN BOOK 2510, PAGE 195, OFFICIAL RECORDS, AND
RECORDED MAY 15, 1980, IN BOOK 1515, PAGE 276, OFFICIAL RECORDS.
Exhibit A
- page 2 of 2 -
STATE OF CALIFORNIA *
COUNTY OF ORANGE *
BEFORE ME, the undersigned authority, a Notary Public in and for said
County and State, on this day personally appeared [illegible], known to
me to be the President of HOMECLUB, INC., a Delaware corporation, known to me
to be the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and
consideration therein expressed, in the capacity therein stated, and as the
act and deed of said Corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE on this 13th day of May, 1988.
[illegible]
[OFFICIAL NOTARY SEAL] --------------------------------------
NOTARY PUBLIC FOR THE STATE
OF CALIFORNIA
[illegible]
-------------------------
Notary's Printed Name
My Commission Expires: [illegible]
COUNTY OF ORANGE*
BEFORE ME, the undersigned authority, a Notary Public in and for said
County and State, on this day personally appeared [illegible], known to me to
be the Vice President of HOMECLUB, INC., a Delaware corporation, known to me
to be the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and
consideration therein expressed, in the capacity therein stated, and as the
act and deed of said Corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE on this 7th day of June, 1988.
[illegible]
[OFFICIAL NOTARY SEAL] --------------------------------------
NOTARY PUBLIC FOR THE COMMONWEALTH
OF [illegible]
[illegible]
-------------------------
Notary's Printed Name
My Commission Expires: [illegible]
GENERAL ACKNOWLEDGMENT
[OFFICIAL NOTARY SEAL]
SECRETARY'S CERTIFICATE
June 6, 1988
I, ▇▇▇ ▇▇▇▇▇▇▇▇, an Assistant Secretary of HomeClub, Inc., a Delaware
corporation, hereby certify that at a meeting of the Board of Directors of
said corporation duly held on June 2, 1987, at which meeting a quorum of the
Directors was present, upon motion duly made and seconded, it was unanimously
RESOLVED: That both (i) any one of ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("Group A Officers") and (ii) any one
of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ("Group B Officers") may sign, seal with the corporate seal,
acknowledge and/or deliver, in the name of and on behalf of this
corporation, any and all deeds, or other instruments of conveyance
or transfer granting, conveying or transferring real estate, any
and all mortgages or pledges of real property, any and all notes
secured by such mortgages or pledges of real property, any and all
assignments, extensions, discharges or partial releases of
mortgages or pledges of real property held by this corporation, any
and all agreements or instruments relating to the acquisition of
real estate, any and all leases, notices of lease, assignments,
surrenders, terminations, extensions or renewals of leases of real
estate, whether this corporaton be named as landlord or as tenant,
and any and all other agreements or instruments relating to real
estate and all amendments of any of the foregoing except only that
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall not sign any document as both a Group A Officer
and a Group B Officer; that the expression "real estate" as used
herein includes any and all interests in real property; and that
the act of both any one Group A Officer and any one Group B Officer
in so signing, sealing with the corporate seal, acknowledging and/or
delivering any of the aforesaid agreements or instruments may be
relied upon by persons dealing with this corporation as conclusive
evidence of the authority of said person so acting.
I also certify that said vote has not been repealed or modified in any
way and is still in full force and effect.
ATTEST:
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Assistant Secretary
SECRETARY'S CERTIFICATE
June 6, 1988
I, ▇▇▇ ▇▇▇▇▇▇▇▇, an Assistant Secretary of Zayre Corp., a Delaware
corporation, hereby certify that at a meeting of the Board of Directors of
said corporation duly held on June 2, 1987, at at which meeting a quorum of
the Directors was present, upon motion duly made and seconded, it was
unanimously
RESOLVED: That both (i) any one of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇. ▇▇▇▇▇ ("Group A Officers") and (ii) any one of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
("Group B Officers") may sign, seal with the corporate seal,
acknowledge and/or deliver, in the name of and on behalf of this
Corporation, any and all guarantees by this Corporation of (a) any
obligations of any majority-owned subsidiaries of this Corporation,
or (b) any obligations of any majority-owned subsidiaries of
majority-owned subsidiaries of this Corporation and that the act of
both any one Group A Officer and any one Group B Officer in so
signing, sealing with the corporate seal acknowledging and/or
delivering any such guarantees may be relied upon by persons dealing
with this Corporation as conclusive evidence of the authority of said
person so acting.
I also certify that said vote has not been repealed or modified in any
way and is still in full force and effect.
ATTEST:
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Assistant Secretary
GUARANTEE
Reference is made to a Shopping Center Lease (the "Lease") dated
____________, 1988, between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (hereinafter referred to as
"Landlord"), and HOMECLUB, INC., a Delaware corporation (hereinafter referred
to as "Tenant"), of certain premises within the shopping center in Chico,
California, located at the intersection of ▇▇▇▇▇▇▇ Avenue and 20th Street.
In consideration of Landlord's having executed said ▇▇▇▇▇ at the request
of Zayre Corp., a Delaware corporation ("Zayre" or "Guarantor"), and in
further consideration of One Dollar and other valuable consideration paid,
the receipt of which is hereby acknowledged, ▇▇▇▇▇ hereby unconditionally
guarantees to Landlord and his heirs, personal representatives, successors
and assigns the payment of the rent provided for in said ▇▇▇▇▇ and the
performance and observance of all agreements and conditions contained in said
Lease on the part of Tenant to be performed or observed. At Landlord's
election, ▇▇▇▇▇ may be brought into any action or proceeding commenced by
Landlord against Tenant in connection with and based upon said Lease, or any
provision thereof, prior to obtaining a judgment against Tenant therein.
Notwithstanding anything contained herein to the contrary, ▇▇▇▇▇ shall have
all defenses and rights of Tenant and its successors and assigns (except
their financial disability) with respect to the performance and payments
under the Lease and the obligations of Zayre hereunder shall be measured by
and shall in no event be greater that the obligations of Tenant. Zayre hereby
agrees that it shall in no way be released from it obligtions under this
Guarantee by any of the following actions: any assignment of said Lease or
any subletting of the demised premises by ▇▇▇▇▇▇, any Leasehold Lender, or
any subtenant, successor, or assignee of Tenant, any new Lease with
Leaseholder Lender or party designated by such Lender as provided in Section
18.6 of the Lease, any waiver of default or any extension of time or other
favor or indulgence granted by Landlord to Tenant, any failure to receive
notice of any of said actions, the expiration or termination of the Lease
(except as provided below), or any extension of the terms of the Lease in
accordance with the provisions of the Lease. Zayre hereby waives notice of
non-payment or any other default in the performance or observance of any
agreement or condition contained in said Lease on the part of Tenant to be
performed or observed.
Anything to the contrary herein notwithstanding: (A) if said Lease shall
be terminated pursuant to the provisions of Article 12 of said Lease at a time
when the tenant in
progression shall not be Zayre, or a subsidiary of Zayre, then Zayre shall
not be liable for the payment of any rent or for the performance or
observance of any agreements or conditions to be paid, performed or observed
which become due or arise after the date of such termination, unless at the
time of such termination Landlord shall have offered to Zayre in writing a
Lease for the balance of the Lease Term (as defined in the Lease) upon the
provisions in said Lease contained; Zayre shall have a period of sixty (60)
days after receipt of such offer to accept such offer. If ▇▇▇▇▇ accepts
▇▇▇▇▇▇▇▇'s offer, then such Lease shall be deemed to mitigate Landlord's
damages.
(B) If Tenant is adjudicated bankrupt, or if any bankruptcy action
involving Tenant is commenced or filed, or if a petition or reorganization,
arrangement, or similar relief is filed against Tenant, then subject to the
foregoing at such time as the trustee or administrator rejects the Lease,
▇▇▇▇▇ shall pay to Landlord all accrued, unpaid rent upon the condition that
within thirty (30) days following notice to Landlord of such rejection
Landlord shall have offered to Zayre in writing a Lease for the balance of the
Lease Term upon the provisions of the Lease, including payment of the rental
obligations as provided above, which offer must remain open for not less than
sixty (60) days after receipt of such written offer. If ▇▇▇▇▇ accepts
▇▇▇▇▇▇▇▇'s offer, then such Lease shall be deemed to mitigate Landlord's
damages.
In the event that any legal action or other proceeding is commenced with
respect to this Guarantee, the unsuccessful party shall reimburse the
prevailing party for all reasonable attorney's fees and costs incurred in
connection therewith, including, without limitation all such fees or costs
incurred on any appeal from such action or proceeding.
This Guarantee shall bind the successors and assigns of Guarantor, and
it shall inure to benefit of the heirs, personal representations, successors
and assigns of Landlord. Guarantor further agrees that Landlord may, without
approval, assign its rights under this Guarantee, in whole or in part, to any
person or entity obtaining an ownership interest or security interest of any
nature in the Lease, provided that, unless Tenant is a wholly-owned
subsidiary of Guarantor at the time, Landlord shall give notice of such
assignment within thirty (30) days thereof to Guarantor.
This Guarantee shall be governed by, and construed in accordance with,
the laws of the State of California.
No provisions of this Guarantee or right of Landlord hereunder can be
waived in whole or in part, nor can ▇▇▇▇▇ be released from ▇▇▇▇▇'s
obligations hereunder, except either by a) a writing duly executed by
Landlord and an authorized officer of Landlord's lender, if any, holding a
lien upon the Demised Premises as defined in the Lease, b) operation of law,
or c) operation of the Lease.
Zayre represents that HomeClub is a wholly-owned subsidiary of Zayre.
▇▇▇▇▇ has caused this Guarantee to be executed and its corporate seal to
be hereto affixed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, its President, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, its
Vice President hereunto duly authorized all as of the ____ day of
____________, 1988.
ZAYRE CORP.
By:
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
By:
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
EXHIBIT "A"
ASSIGNMENT PROPERTY
-------------------
The "Assignment Property" assigned by ▇▇▇▇▇▇▇▇ and assumed by
Assignee pursuant to Section 2 of the Assignment and Assumption Agreement
between them dated as of June 8, 1988, includes the following:
1. The Agreement of Purchase and Sale and Joint Escrow Instructions
between Assignor and Park Springfield, Ltd., a California limited
partnership, dated as of March 25, 1988, and subsequently amended
as of April 15, 1988, May 1, 1988, and May 13, 1988, for the
acquisition of 11.231 acres of land in Chico, California;
2. The Agreement of Purchase and Sale and Joint Escrow Instructions
executed by Assignor and Park Springfield, Ltd., to exercise the
Option Agreement between them dated as of March 25, 1988, and to
consummate the acquisition of 9.68 acres of land in Chico, California;
3. The Assessment District and Cost-Sharing Agreement between
Assignor and Park Springfield, Ltd., dated as of June 8, 1988;
4. The Shopping Center Lease between Assignor and HomeClub, Inc.;
5. The Build and Lease Agreement between Assignor and Netco
Foods, Inc.;
6. The Lease Agreement between Assignor and Pay Less Drug Stores
Northwest, Inc.;
7. The Development Plan prepared by Assignor and Assignee;
8. All "Development Materials," as defined in Recital B of this
Assignment and Assumption Agreement and as specified in the following
page of this Exhibit "A," which is attached hereto and incorporated
herein; and
9. Any and all other rights not expressly specified herein relating to
the acquisition, development, construction and leasing of the 20th &
▇▇▇▇▇▇▇ Shopping Center Project in accordance with the Development
Plan (except as set forth in the Assignment, Assumption and Option
Agreement and/or in the Project Management Agreement between Assignor
and Assignee.)
EXHIBIT "A" (Continued)
DEVELOPMENT MATERIALS
VENDOR/CONTRACTOR DESCRIPTION OF WORK
----------------- -------------------
Orrland Co. Site Plans and Elevations
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ Construction Drawings
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Assoc. Landscape Plans (Preliminary Phase I,
Phase II, State Right of Way
Rolls ▇▇▇▇▇▇▇▇ & Rolls Civil Engineering, Phase I & II &
▇▇▇▇▇▇▇ Avenue Assmt. Dist., Owners
Participation Agt.
TJKM Engineers Traffic Signal Design
JTS Engineering ALTA Survey
Laver ▇▇▇▇▇ & Assoc. Soils Testing, Environmental
Assessment
Kleinfelder Groundwater & Toxic Testing
▇▇▇. ▇. ▇▇▇▇▇, AIA Appraisal
WM. ▇▇▇▇▇, AIA Easement Appraisal
City of Chico All permits and approvals received
from the City of Chico subject to
all conditions and extractions
thereto.
RECORDING REQUESTED BY )
AND WHEN RECORDED, MAIL TO: )
)
Pacific Quadrant Development Co. )
c/o Pacific RIM Development Corp. )
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇▇▇ )
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ )
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ )
----------------------------------- -------------------------------------------
ASSIGNMENT AND ASSUMPTION OF GUARANTEE
THIS AGREEMENT, dated as of _____________________________________, 1988,
is made by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("Assignor") and PACIFIC QUADRANT
DEVELOPMENT COMPANY, a California general partnership ("Assignee").
R E C I T A L S :
-----------------
A. By means of an Assignment and Assumption Agreement of even
date herewith, Assignor has assigned to Assignee all of his right, title and
interest in and to that certain Shopping Center Lease between Assignor and
HomeClub, Inc., dated as of June 6, 1988 (the "Lease"), and Assignee has
assumed all obligations thereunder and agreed to be bound thereby.
▇. ▇▇▇▇▇▇'s obligations to pay rent and to perform and observe all
agreements and conditions contained in the Lease are guaranteed by that
certain Guarantee from the Zayre Corporation, dated as of June 6, 1988 (the
"Guarantee"). A copy of the Guarantee is attached hereto as Exhibit "A" and
incorporated herein.
C. Assignee desires to acquire all of Assignor's right, title and
interest in the Guarantee, and Assignor is willing to assign the same to
Assignee on the terms, covenants and conditions set forth herein.
NOW, THEREFORE, for valuable consideration, the receipt of which is
hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. RECITALS. The foregoing recitals are true and correct.
2. ASSIGNMENT AND ASSUMPTION. Assignor hereby grants, assigns, transfers
and delivers to Assignee all of his right, title and interest in and to the
Guarantee. Assignee hereby accepts said assignment from Assignor, assumes
all obligations of Landlord set forth in the Guarantee, and agrees to be
bound by all of the terms,
covenants and conditions set forth therein from and after the effective date
of this Agreement.
3. MUTUAL INDEMNIFICATIONS. Assignor hereby agrees to indemnify
Assignee, hold it harmless, defend and protect it from and against any and
all claims, demands, damages, losses, liabilities, liens, lawsuits and other
proceedings, together with all costs and expenses thereof (including, without
limitation, reasonable attorneys fees and court costs) arising from or
connected with any act or omission with respect to the Guarantee occurring
prior to the effective date of this Agreement. Assignee hereby agrees to
indemnify Assignor, hold him harmless, defend and protect him from and
against any and all claims, demands, damages, losses, liabilities, liens,
lawsuits and other proceedings, together with all costs and expenses thereof
(including, without limitation, reasonable attorney's fees and court costs)
arising from or connected with any act or omission with respect to the
Guarantee occurring after the effective date of this Agreement.
4. GENERAL PROVISIONS. This Agreement shall be governed by and
construed in accordance with the laws of the State of California. It shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns. In the
event that any lawsuit is initiated to interpret or enforce the terms of this
Agreement, the prevailing party shall be entitled to an award of reasonable
attorneys' fees and court costs.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement as
of the date first written above.
PACIFIC QUADRANT DEVELOPMENT COMPANY
a California general partnership
By: Pacific RIM Development
Corporation, a California
corporation, Managing General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Senior Vice President-
Operations
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
STATE OF CALIFORNIA )
) ss.
COUNTY OF CONTRA COSTA )
On this 10 day of June, 1988, before me, a Notary Public in and for
said State, duly commissioned and sworn, personally appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, known to me (or proved to me on the basis of satisfactory evidence)
to be the Senior Vice President-Operations of Pacific RIM Development
Corporation, a California corporation, Managing General Partner of Pacific
Quadrant Development Company, a California general partnership, and the
officer executing the within instrument who acknowledged to me that such
corporation executed the within instrument pursuant to its by-laws or a
resolution of its board of directors and that the partnership executed the
same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal on the date in this certificate first above written.
/s/ ▇▇▇▇ ▇▇▇▇▇▇
[ S E A L ] ----------------------------------------
NOTARY PUBLIC
STATE OF CALIFORNIA )
) ss.
COUNTY OF CONTRA COSTA )
On this 10 day of June, 1988, before me, a Notary Public in and for said
State, duly commissioned and sworn, personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument, and acknowledged
that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal on the date in this certificate first above written.
/s/ ▇▇▇▇ ▇▇▇▇▇▇
[ S E A L ] ----------------------------------------
NOTARY PUBLIC
EXHIBIT "A"
GUARANTEE
Reference is made to a Shopping Center Lease (the "Lease") dated June 6,
1988, between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (hereinafter referred to as "Landlord"),
and HOMECLUB, INC., a Delaware corporation (hereinafter referred to as
"Tenant"), of certain premises within the shopping center in Chico,
California, located at the intersection of ▇▇▇▇▇▇▇ Avenue and 20th Street.
In consideration of Landlord's having executed said ▇▇▇▇▇ at the request
of Zayre Corp., a Delaware corporation ("Zayre" or "Guarantor"), and in
further consideration of One Dollar and other valuable consideration paid,
the receipt of which is hereby acknowledged, ▇▇▇▇▇ hereby unconditionally
guarantees to Landlord and his heirs, personal representatives, successors
and assigns the payment of the rent provided for in said ▇▇▇▇▇ and the
performance and observance of all agreements and conditions contained in said
Lease on the part of Tenant to be performed or observed. At Landlord's
election, ▇▇▇▇▇ may be brought into any action or proceeding commenced by
Landlord against Tenant in connection with and based upon said Lease, or any
provision thereof, prior to obtaining a judgment against Tenant therein.
Notwithstanding anything contained herein to the contrary, ▇▇▇▇▇ shall have
all defenses and rights of Tenant and its successors and assigns (except
their financial disability) with respect to the performance and payments
under the Lease and the obligations of Zayre hereunder shall be measured by
and shall in no event be greater than the obligations of Tenant. Zayre hereby
agrees that it shall in no way be released from its obligations under this
Guarantee by any of the following actions: any assignment of said Lease or
any subletting of the demised premises by ▇▇▇▇▇▇, any Leasehold Lender, or
any subtenant, successor, or assignee of Tenant, any new Lease with Leasehold
Lender or party designated by such Lender as provided in Section 18.6 of the
Lease, any waiver of default or any extension of time or other favor or
indulgence granted by Landlord to Tenant, any failure to receive notice of
any of said actions, the expiration or termination of the Lease (except as
provided below), or any extension of the terms of the Lease in accordance
with the provisions of the Lease. Zayre hereby waives notice of non-payment
or any other default in the performance or observance of any agreement or
condition contained in said Lease on the part of Tenant to be performed or
observed.
Anything to the contrary herein notwithstanding: (A) if said Lease shall
be terminated pursuant to the provisions of Article 12 of said Lease at a
time when the tenant in
possession shall not be Zayre, or a subsidiary of Zayre, then Zayre shall not
be liable for the payment of any rent or for the performance or observance of
any agreements or conditions to be paid, performed or observed which become
due or arise after the date of such termination, unless at the time of such
termination Landlord shall have offered to Zayre in writing a Lease for the
balance of the Lease Term (as defined in the Lease) upon the provisions in
said Lease contained; Zayre shall have a period of sixty (60) days after
receipt of such offer to accept such offer. If ▇▇▇▇▇ accepts ▇▇▇▇▇▇▇▇'s
offer, then such Lease shall be deemed to mitigate Landlord's damages.
(B) If Tenant is adjudicated bankrupt, or if any bankruptcy action
involving Tenant is commenced or filed, or if a petition or reorganization,
arrangement, or similar relief is filed against Tenant, then subject to the
foregoing at such time as the trustee or administrator rejects the Lease,
▇▇▇▇▇ shall pay to Landlord all accrued, unpaid rent upon the condition that
within thirty (30) days following notice to Landlord of such rejection
Landlord shall have offered to Zayre in writing a Lease for the balance of
the Lease Term upon the provisions of the Lease, including payment of the
rental obligations as provided above, which offer must remain open for not
less than sixty (60) days after receipt of such written offer. If ▇▇▇▇▇
accepts ▇▇▇▇▇▇▇▇'s offer, then such Lease shall be deemed to mitigate
Landlord's damages.
In the event that any legal action or other proceeding is commenced with
respect to this Guarantee, the unsuccessful party shall reimburse the
prevailing party for all reasonable attorney's fees and costs incurred in
connection therewith, including, without limitation all such fees or costs
incurred on any appeal from such action or proceeding.
This Guarantee shall bind the successors and assigns of Guarantor, and
it shall inure to the benefit of the heirs, personal representations,
successors and assigns of Landlord. Guarantor further agrees that Landlord
may, without approval, assign its rights under this Guarantee, in whole or in
part, to any person or entity obtaining an ownership interest or security
interest of any nature in the Lease, provided that, unless Tenant is a
wholly-owned subsidiary of Guarantor at the time, Landlord shall give notice
of such assignment within thirty (30) days thereof to Guarantor.
This Guarantee shall be governed by, and construed in accordance with,
the laws of the State of California.
No provisions of this Guarantee or right of Landlord hereunder can be
waived in whole or in part, nor can ▇▇▇▇▇ be released from ▇▇▇▇▇'s
obligations hereunder, except either by a) a writing duly executed by
Landlord and an authorized officer of Landlord's lender, if any, holding a
lien upon the Demised Premises as defined in the Lease, b) operation of law,
or c) operation of the Lease.
Zayre represents that HomeClub is a wholly-owned subsidiary of Zayre.
▇▇▇▇▇ has caused this Guarantee to be executed and its corporate seal to
be hereto affixed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, its President, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, its
Vice President hereunto duly authorized all as of the 6th day of June, 1988.
ZAYRE CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
SHOPPING CENTER LEASE
CHICO, CALIFORNIA
Between
HOMECLUB, INC.
as Tenant
and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
as Landlord
HOMECLUB, INC. SHOPPING CENTER LEASE
TABLE OF CONTENTS
PAGE
----
ARTICLE I PREMISES 1
ARTICLE II TITLE AND OTHER OBLIGATIONS 1
ARTICLE III CONSTRUCTION AND PRE-TERM OCCUPANCY 3
ARTICLE IV LEASE TERM 4
ARTICLE V RENT 8
ARTICLE VI REAL ESTATE TAXES 10
ARTICLE VII REPAIRS AND UTILITIES 13
ARTICLE VIII ALTERATIONS 16
ARTICLE IX FIRE AND OTHER CASUALTY 18
ARTICLE X EMINENT DOMAIN 22
ARTICLE XI INDEMNIFICATION 24
ARTICLE XII DEFAULT 25
ARTICLE XIII SELF-HELP 27
ARTICLE XIV WAIVER OF SUBROGATION 28
ARTICLE XV MORTGAGE SUBORDINATION 29
ARTICLE XVI ASSIGNMENT 30
ARTICLE XVII [intentionally omitted] 31
ARTICLE XVIII LEASEHOLD MORTGAGES 31
ARTICLE XIX GENERAL 33
ARTICLE XX SALE OF DEMISED PREMISES BY LANDLORD 39
SCHEDULE A DESCRIPTION OF DEMISED PREMISES
SCHEDULE B LANDLORD'S OBLIGATIONS
SCHEDULE C LANDLORD'S CONSTRUCTION WORK
SCHEDULE D SUBORDINATION, RECOGNITION AND ATTORNMENT AGREEMENT
SCHEDULE E ZAYRE GUARANTEE
SCHEDULE F SHORT FORM LEASE
HOMECLUB, INC. SHOPPING CENTER LEASE
Lease dated June 6, 1988, between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Landlord
(hereinafter referred to as "Landlord"), and HOMECLUB, INC., a Delaware
corporation, as Tenant (hereinafter referred to as "Tenant").
ARTICLE I
PREMISES
1.1 In consideration of the rents, agreements and conditions herein
reserved and contained on the part of Tenant to be paid, performed and
observed, Landlord does hereby demise and lease to Tenant, for the term
hereinafter set forth, the premises described in Schedule A attached hereto
as the Demised Premises (the "Demised Premises") consisting of 103,909 square
feet of building space plus 9,880 square feet of an exterior nursery area
within the shopping center described in Schedule A as the Shopping Center
(the "Shopping Center").
1.2 Landlord warrants to Tenant that Tenant while operating a retail
and/or wholesale home improvement store together with an exterior garden shop
and lumber area will not be in violation of any exclusives or other
agreements which Landlord may have with other tenants, lenders, governmental
entities or any other parties, and Landlord further warrants: (i) that the
Demised Premises are zoned to permit use of the Demised Premises as a retail
and wholesale general merchandiser, including without limitation, the sale of
home improvement merchandise including lumber sales and a garden shop,
(ii) the real property described in Schedule A (excluding groundwater, except
that Landlord represents that it has no information regarding onsite
groundwater contamination or, to the extent caused by onsite contamination,
any offsite contamination) is free from contamination by any hazardous or
toxic substances, waste, or constituents, including any hydrocarbonic
substances, and (iii) as of the Commencement Date no building, health,
safety, or environmental laws, ordinances or regulations of public
authorities having jurisdiction materially restrict in any way the conduct of
a retail and/or wholesale home improvement store throughout the Demised
Premises or the sale therein of any and all merchandise and services
connected therewith. ▇▇▇▇▇▇▇▇ hereby indemnifies Tenant against any claims or
damages suffered or claimed to be suffered as a result of any breach of the
foregoing warranties pertaining to Tenant's use of the Demised Premises.
ARTICLE II
TITLE AND OTHER OBLIGATIONS
2.1 Landlord has furnished Tenant with two preliminary title reports
covering the Demised Premises and the Shopping Center issued
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by First American Title Insurance Company (the "Title Company") as Order No.
BU-96705 (dated as of February 10, 1988; hereafter "Title Report Lot 9"), and
Order No. BU-96705-A (dated as of February 10, 1988; "Title Report Lot 4")
(collectively, the "Title Report"), together with copies of all the documents
referred to therein and a survey prepared in accordance with ALTA standards
(collectively the "Title Evidence"). Tenant will permit as exceptions to
title, exception numbers 1, 2, 3 and 6 as shown on Title Report Lot 4, and 1,
2, 3 and 6, as shown on Title Report Lot 9 (the "Permitted Exceptions"). If
any exceptions which are not Permitted Exceptions (the "Unpermitted
Exceptions") exist, Landlord shall have fifteen (15) days after the execution
of this lease to provide evidence to Tenant that it has caused or will cause
such Unpermitted Exceptions to be removed of record or agree to provide an
endorsement to the Leasehold Title Policy (as hereinafter defined) over such
Unpermitted Exceptions, which endorsement shall be in form and substance
acceptable to Tenant. If Landlord shall fail in said fifteen (15) days to
either cause the removal of such Unpermitted Exceptions or to agree to
provide an endorsement over such Unpermitted Exceptions, then Tenant shall
have the right to terminate this lease by giving ▇▇▇▇▇▇▇▇ written notice
within ten (10) days after the end of said fifteen (15) day period. If Tenant
shall fail within said ten (10) days to give such notice of termination to
Landlord, then thereafter the Unpermitted Exceptions shall be deemed
Permitted Exceptions. Landlord shall promptly cause the Title Company to
issue its ALTA Leasehold Owner's Title Insurance Policy including extended
coverage to Tenant, subject only to the Permitted Exceptions, insuring
Tenant's leasehold estate in the Demised Premises, with liability in the
amount of Three Million Dollars ($3,000,000.00) (the "Leasehold Title
Policy"). If Landlord fails to provide Tenant with the Leasehold Title Policy
as required herein, Tenant may terminate this lease, and neither Landlord nor
Tenant shall have any claims against the other in connection with this lease.
Subject to Tenant's approval, Landlord may cause a plat of subdivision to be
prepared and recorded which shows the Demised Premises as a separate legally
subdivided lot or parcel. Thereafter, Landlord shall promptly (i) prepare a
revised short form lease reflecting the revised legal description of the
Demised Premises, and (ii) cause an endorsement to be issued to the Leasehold
Title Policy to reflect the legal description of the Demised Premises as
subdivided.
2.2 Simultaneously with the execution of this lease Landlord and ▇▇▇▇▇▇
shall execute an instrument, substantially in the form attached hereto as
Schedule F, recordable in form, setting forth the parties, a description of
the Demised Premises and the Shopping Center, the Lease Term and such other
provisions of this lease as may be reasonably requested by either party to
constitute a "short form lease" or other instrument adequate, in the opinion
of Tenant, for recording purposes. Without expense to Tenant, Landlord shall
cause said short form lease or other instrument to be recorded in the
appropriate land records upon, and only upon, request by ▇▇▇▇▇▇ that same be
recorded. After the Commencement Date shall be fixed, upon the written
request of either Landlord or Tenant, Landlord and Tenant will enter into an
amended "short form lease" or other such instrument to fix the Commencement
Date of record which amended short form of
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lease shall be recorded by Landlord upon, and only upon, ▇▇▇▇▇▇'s request for
recording thereof.
2.3 Tenant shall cause Zayre Corp., a Delaware corporation,
("Guarantor") to execute a lease guaranty in the form as that attached
hereto as Schedule E and deliver such guaranty to Landlord within ten (10)
business days from the date of lease execution by ▇▇▇▇▇▇.
2.4 It is a condition of Tenant's obligations under this lease that
Food 4 Less Market or a substitute market of like quality and size with ten
(10) or more stores in operation in California (the "Inducement Tenant")
shall sign a lease with Landlord for 40,000 or more square feet of floor
space within the Shopping Center by June 15, 1988 or at which time Landlord
purchases the property described in Schedule A as the Shopping Center,
whichever date is earlier (the "Inducement Condition"). If the Inducement
Tenant has not opened for business prior to March 1, 1989, Tenant may have
the "Minimum Rent" (defined hereinafter) reduced as provided in Section
5.1(E) herein.
ARTICLE III
CONSTRUCTION AND PRE-TERM OCCUPANCY
3.1 CONSTRUCTION. ▇▇▇▇▇▇▇▇ agrees that the work described in Schedule
C attached hereto as "Landlord's Construction Work" will be commenced
promptly after the approval of the detailed plans and specifications provided
for in Schedule C, and that Landlord's Construction Work will be prosecuted
to completion with due diligence and shall be done at Landlord's own cost and
expense.
3.2 PRE-TERM OCCUPANCY. Tenant shall have the right, without payment
of rent or other charge, after the execution of this lease and prior to the
"Commencement Date" (hereinafter defined), upon timely notice given to
Landlord, to enter the Demised Premises to inspect the same and to make such
improvements thereto as it shall have the right to make and install therein
fixtures, supplies, merchandise and other property. Tenant agrees that any
such entry and the making of any such improvements and any such installation
shall be done without unreasonably hampering Landlord's construction of the
Demised Premises and without creating additional cost for the Landlord. No
such entry by Tenant shall be deemed an acceptance of the Demised Premises.
Until the Commencement Date, Landlord shall pay the cost of water, sewer,
electricity, gas, heat, air conditioning and other utilities available upon
the Demised Premises; and until such time Tenant shall have the right to use,
without charge, water, sewer, electricity, gas, heat, air conditioning and
other utilities available upon the Demised Premises. Prior to the
Commencement Date while Tenant may be making improvements to the Demised
Premises or installing in the Demised Premises fixtures, supplies,
merchandise and other property, as hereinabove provided, Tenant shall be in
the Demised Premises at its own risk and shall save Landlord harmless from,
and defend and indemnify Landlord against, any and all injury to person or
property caused by or resulting from any act, omission or negligence of
Tenant or any agent or employee of Tenant. It is a condition of this save
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harmless and indemnification that Tenant shall receive notice of any such
claim against Landlord.
ARTICLE IV
LEASE TERM
4.1 ORIGINAL TERM. The original term of this lease (the "Original
Term") shall be a period of twenty (20) years and a fraction of a month
commencing on the "Commencement Date" (hereinafter defined), and terminating
on the last day of the month in which the twentieth anniversary of the
Commencement Date occurs, except, however, that if the Commencement Date
shall be a first day of a calendar month, then the Original Term shall be the
period of twenty (20) years commencing on the Commencement Date and
terminating on the twentieth (20th) anniversary thereof.
4.2 OPTIONS. Tenant shall have the right, at its election, to extend
the Original Term, an extension period of five (5) years commencing upon the
expiration of the Original Term (sometimes herein referred to as an
"Extension Period" or the "First Extension Period"), provided that Tenant
shall give Landlord notice of the exercise of its election at least six (6)
months prior to the expiration of the Original Term. If Tenant exercises its
right to extend the Original Term for the First Extension Period, Tenant
shall have the right, as its election, to further extend the Lease Term (as
hereinafter defined) an additional extension period of five (5) years
commencing upon the expiration of the First Extension Period (sometimes
herein referred hereto as an "Extension Period" or the "Second Extension
Period"), provided that Tenant shall give Landlord notice of the exercise of
its election at least six (6) months prior to the expiration of the First
Extension Period. If Tenant exercises its right to extend the Lease Term for
the Second Extension Period, Tenant shall have the right, at its election, to
further extend the Lease Term an additional extension period of five (5) years
commencing upon the expiration of the Second Extension Period (sometimes
herein referred to as an "Extension Period" or the "Third Extension Period"),
provided that Tenant shall give Landlord notice of the exercise of its
election at least six (6) months prior to the expiration of the Second
Extension Period. If Tenant exercises its right to extend the Lease Term for
the Third Extension Period, Tenant shall have the right, at its election, to
further extend the Lease Term an additional extension period of five (5)
years commencing upon the expiration of the Third Extension Period (sometimes
herein referred to as an "Extension Period" or the "Fourth Extension Period")
provided that Tenant shall give Landlord notice of the exercise of its
election at least six (6) months prior to the expiration of the Third
Extension Period. In addition to the foregoing option rights, at the end of
the original term, if no extension has been elected, or at the end of any
Extension Period, if no further extension has been elected, Tenant shall have
the option to extend the Lease Term until January 31st next following (the
"Extra Period"), provided that Tenant shall give Landlord notice of the
exercise of its election at least six (6) months prior to the expiration of
the Original Term or
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last elected Extension Period. Prior to the exercise by Tenant of any of said
elections under this Section 4.2 to extend the Original Term, the expression
"Lease Term" shall mean the Original Term; after the exercise by Tenant of
any of said elections, the expression "Lease Term" shall mean the Original
Term as it may have been then extended. Except as expressly otherwise
provided in this lease, all the covenants, terms and conditions in this lease
contained shall apply to the period or periods to which the Original Term
shall be extended, as aforesaid. If Tenant shall give notice of the exercise
of an election under this Section 4.2 in the manner and within the time
provided aforesaid, the Lease Term shall be extended upon the giving of such
notice without the requirement of any action on the part of Landlord.
4.3 COMMENCEMENT. An "Opening Day" shall be any Monday through Friday
(except legal holidays) between March 1 and the following September 30. The
"Commencement Date" shall be the first Opening Day after the later to occur
of the following dates:
(1) the thirtieth (30th) day after both the completion of
▇▇▇▇▇▇▇▇'s Construction Work, and the receipt by Tenant of notice thereof
from Landlord;
(2) the one hundred and fifteenth (115th) day after Landlord shall
have delivered to Tenant all of the fully executed and acknowledged
instruments referred to in Paragraph 11 of Schedule B, or September 30, 1988
(or such later date as determined pursuant to Section 4.10), if said delivery
is made on or before June 24, 1988, and within 5 days after Landlord's
acquisition of the property for the Demised Premises;
(3) the forty-fifth (45th) day after the "fixture day" (as
hereinafter defined);
(4) the fifty-fifth (55th) day after Tenant shall receive from
Landlord a ten-day notice of the arrival of the fixture day;
(5) the tenth (10th) day after Landlord shall deliver to Tenant a
final certificate of occupancy (or its equivalent), if the same shall be
issuable in accordance with local law or custom;
except that if the Demised Premises shall be formally opened for business
with customers prior to the Commencement Date determined as above provided,
then such date of formal opening shall be the Commencement Date. The "fixture
day" shall be the day upon which Landlord's Construction Work shall have
progressed to such a point that the floor in the Demised Premises shall have
been completed, all lighting and wiring shall have been completed and shall
be operating, and the heating, ventilating and air conditioning systems
(sometimes herein referred to as the "HVAC") shall have been installed and
shall be operating automatically, all toilets shall be operating, all work
requiring scaffolding shall have been completed, complete security shall have
been established throughout the Demised Premises, the Demised Premises shall
be in broom clean condition, the sprinkler system shall have been installed
and shall be operating automatically and a paved
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area shall have been provided which shall be adequate for access by Tenant's
delivery vehicles from ▇▇▇▇▇▇▇ Avenue and E. 20th Street and for parking
thereof adjacent to the front or rear of the Demised Premises. If Landlord
cannot provide Tenant with reasonable assurances that Landlord's Construction
Work as defined in Schedule C will be completed within forty-five (45) days
after the fixture date, or the date Tenant would have been able to open
otherwise, whichever date is later, then Tenant shall have the right, at its
election, and upon giving notice thereof to Landlord, to complete so much of
Landlord's Construction Work, according to the plans and specifications and
in a good and workmanlike manner, for the account of Landlord as Tenant shall
elect to complete, and if Landlord shall fail to reimburse Tenant upon demand
for any amount (including, without limitation, overtime charges for labor)
paid for such completion, said amount may be deducted from any payments of
rent due under this lease. For the purposes of this Article IV and Article V,
Landlord's Construction Work shall be deemed completed notwithstanding that
the correction of certain minor punch list items in the nature of "touchups"
or "adjustments" may be required for full completion provided that (i)
neither the failure of completion nor the act of completion shall interfere
with ▇▇▇▇▇▇'s use or enjoyment of the Demised Premises or any rights of
Tenant under this lease, and (ii) Landlord shall diligently complete any such
touchup or adjustment upon receiving notice of the need therefor.
4.4 [Intentionally omitted.]
4.5 Landlord agrees that upon the Commencement Date, the Demised
Premises and all rights of Tenant under this lease will be free and clear of
all title matters, except as set forth in this lease (including Schedule B),
and that construction of the Demised Premises and the Shopping Center and the
use of the Shopping Center, including the Demised Premises, for retail and
wholesale operations, and parking areas will be in full compliance with all
laws, ordinances and regulations of any public authorities and insurance
rating bureaus having jurisdiction (including without limitation zoning and
building codes), and all necessary governmental permits and certificates of
occupancy shall have been issued. Landlord agrees that if at any time or
times any public authorities or insurance rating bureaus having jurisdiction
shall complain that the Demised Premises or the Shopping Center shall not
have been constructed in compliance with any law, ordinance, or regulation,
in existence at the time of construction, of any public authority or
insurance rating bureau having jurisdiction and shall request compliance, and
if failure to comply shall in any way affect the use of the Demised Premises
by Tenant or affect any other rights of Tenant, then Landlord shall upon
receipt of notice of such complaint cause such repairs, alterations, or other
work to be done so as to bring about the compliance requested. If by reason
of such failure of compliance or by reason of such repairs, alterations or
other work done by Landlord, Tenant shall be deprived of the use or enjoyment
of the whole or any part of the Demised Premises or the "Common Areas"
(defined in Schedule B), Minimum Rent shall ▇▇▇▇▇ on a per diem basis in
proportion to said deprivation. If at any time during the Lease Term, any
person having a prior right to Tenant not set forth in
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Paragraph 12 of Schedule B shall cause an injunction to be entered against
Tenant restricting Tenant's use or enjoyment of the Demised Premises or any
rights of Tenant under this lease, then ▇▇▇▇▇▇'s rent shall be abated in
proportion to the injury to Tenant's business until such injunction is
removed. If such injunction shall not be dismissed within ninety (90) days
after Tenant shall give Landlord notice thereof, then Tenant, at Tenant's
option, without waiving any other rights Tenant may have against Landlord on
account thereof may terminate this lease by giving Landlord notice
thereof or may elect to continue with rent abatement. Should Tenant elect to
continue with rent abatement, Landlord may terminate this lease upon thirty
(30) days written notice to ▇▇▇▇▇▇, unless ▇▇▇▇▇▇ agrees to waive the rent
abatement and pay full rent.
4.6 If Landlord's Construction Work has not been commenced by June 16,
1988, then at any time thereafter, but prior to the commencement of
Landlord's Construction Work, Tenant shall have the right at its election to
terminate this lease by giving Landlord notice thereof.
4.7 If Landlord's Construction Work has not been completed, and if
possession of the Demised Premises shall not be delivered to Tenant by
February 15, 1989, then at any time thereafter, but prior to completion of
Landlord's Construction Work and delivery of possession of the Demised
Premises to Tenant, Tenant shall have the right, at its election, to
terminate this lease by giving Landlord notice thereof.
4.8 Tenant agrees that, on or before the ninetieth (90th) day after the
Commencement Date, Tenant shall open for business in the Demised Premises
substantially fully fixtured and stocked. Nothing in the immediately
preceding sentence or any other provision of this lease shall thereafter
obligate Tenant to keep the Demised Premises open for business at any time
or times.
4.9 In the event that the Demised Premises shall, at any time during the
Lease Term, be closed for business to customers for any period of three
hundred sixty five (365) consecutive days or more, other than as the result
of a cause or event referred to in Articles IX or X or Section 19.3 hereof
(the "Dark Period"), then, at any time thereafter but prior to any date on
which Tenant shall give notice to Landlord that Tenant shall thereafter
reopen the Demised Premises for business to customers ("Tenants Notice"),
Landlord may, at its election, (i) request information from Tenant regarding
the cost to Tenant and the nature of leasehold improvements installed in, or
made to, the Demised Premises and the date(s) of the installation and/or
making thereof, and (ii) terminate the Lease Term by giving Tenant notice
thereof and the Lease Term shall terminate on the thirtieth (30th) day after
the giving of such notice by Landlord to the same extent as if said date were
the date originally set forth in Sections 4.1 and 4.2 for the expiration of
the Lease Term. If Landlord shall request information pursuant to clause (i)
of the immediately preceding sentence, Tenant shall furnish such information
in reasonable detail to Landlord within twenty-one (21) days after ▇▇▇▇▇▇
receives such request therefor. In the event that Landlord shall terminate
this lease pursuant to this Section 4.9, then simultaneously with the sending
of notice thereof
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to Tenant, Landlord shall pay to Tenant (i) an amount equal to the product
of the cost to Tenant of leasehold improvements installed in, or made to, the
Demised Premised by Tenant from time to time (exclusive of merchandise racks)
multiplied by a fraction the denominator of which shall be one hundred twenty
(120) and the numerator of which shall be one hundred twenty (120) minus the
number of months between the date of the making of such improvements, in each
case, and the date of such termination of the Lease Term, and (ii) the
unreimbursed amounts, if any, recoverable by Tenant pursuant to Section 9.4
herein. If Tenant shall give ▇▇▇▇▇▇'s Notice as aforesaid, Tenant shall open
the Demised Premises for business, substantially fully fixtured and stocked,
on or before the ninetieth (90th) day after the date of Tenant's Notice. If
Tenant shall fail to open as provided in the immediately preceding sentence,
then, at any time after said ninetieth (90th) day but prior to any date on
which Tenant shall so open, Landlord may terminate the lease as provided
hereinabove. Notwithstanding the foregoing, if prior to said 90th day Tenant
has commenced and diligently pursued the work to reopen, then after said 90th
day, Landlord may terminate the Lease prior to any date on which Tenant shall
so open, but only after the earlier of the date 60 days after said 90th day,
or the date Tenant ceases diligent efforts to reopen.
4.10 Notwithstanding any other provisions of this lease, if Landlord is
otherwise able to close escrow under the terms of the Purchase Agreement for
the acquisition of the Demised Premises property on or before May 16, 1988,
then the following dates:
-September 30 date in Section 4.3,
-June 16, 1988 date in Section 4.6,
-February 15, 1989 date in Section 4.7, and
-Both July 15, 1988 dates and the September 30 date
in Section 5.1 (D),
shall be extended on a day per day basis for each date that Landlord must
wait after May 6, 1988 for Tenant to deliver to it a fully executed original
of this lease and the attached Guarantee; provided, however, that the length
of the preceding extension shall be reduced on a day per day basis (but not
less than 0) if Landlord is actually able to close escrow on its acquisition
of the Demised Premises property in less than fourteen (14) days after its
receipt of the Lease from Tenant.
ARTICLE V
RENT
5.1 Minimum Rent. (A) From the Commencement Date until the fifth (5th)
anniversary thereof, Tenant shall pay Landlord minimum rent at the rate of
Four Hundred Eighty-Eight Thousand Three Hundred Seventy-Two and 30/100
Dollars ($488,372.30) per year (the "Minimum Rent").
(B) On the fifth (5th), tenth (10th), and fifteenth (15th)
anniversaries of the Commencement Date, as well as on the twentieth (20th),
twenty-fifth (25th), thirtieth (30th), and thirty-fifth (35th) anniversaries
of the Commencement Date in the event the Lease Term is extended pursuant to
Section 4.2 hereof, the Minimum Rent shall be adjusted for the 5-year period
commencing on each such anniversary date ("CPI Adjustment") by multiplying
the original Minimum Rent by a fraction, which fraction shall have as a
numerator the Index (as hereinafter defined) for the month in which the CPI
Adjustment is to occur and which fraction shall have as its denominator the
Index for the month in which the Commencement Date occured. "Index" shall
mean the seasonal Consumer Price Index for all Urban Wage Earners and
Clerical Workers for the United States, published by the United States
Department of Labor, Bureau of Labor Statistics, in which the 1982-1984
average of 100 points is the base. If the 1982-1984 average of 100 points
ceases to be used as the base, the Index shall be converted, in accordance
with the conversion factor published by the Department of Labor, Bureau of
Labor Statistics, to the 1982-1984 base. If the Index is discontinued or if a
substantial change is made in the terms or number of items used to compile
the Index, then any similar index which most closely comprehends the impact
of cost-of-living increases on commercial real property rental published by
any branch or department of the U.S. Government shall be used, and if none is
so published, then another nonpartisan index evaluating the information
theretofore used in compiling the Index, and generally recognized as
authoritative on the impact of cost-of-living increases on commercial real
property rentals shall be used. Notwithstanding anything contained in this
lease to the contrary, under no circumstances shall the Minimum Rent be
adjusted to exceed ten percent (10%) over the Minimum Rent for the
immediatley preceding sixty (60) month period. In no event shall such
adjustment result in a reduction below the Minimum Rent in effect to the
immediatley preceding sixty (60) month period. When the adjusted Minimum Rent
is determined, Landlord shall give Tenant written notice to that effect
indicating how the adjusted Minimum Rent was computed. Pending receipt of
such notice from Landlord as to the new Minimum Rent, Tenant shall continue
to pay the Minimum Rent in effect during the preceding sixty (60) month
period; provided, however, that Landlord shall have one hundred twenty (120)
days to provide Tenant with a notice of its increased Minimum Rent and Tenant
shall then make up the difference in the Minimum Rent for the preceding
period, except that in no event shall Landlord be entitled to collect such
difference for a period in excess of one hundred twenty (120) days.
(C) All Minimum Rent shall be payable (without notice, demand or
set-off or abatement of any nature, except as provided expressly in this
lease) in monthly installments of one-twelfth the annual rate thereof then in
effect, in advance, upon the first day of each calendar month included within
the Lease Term. All rent and other payments to be made by Tenant shall be
sent to Landlord at the place to which notices to Landlord are required to be
sent, unless Landlord shall direct otherwise by notice to Tenant. Rent for
any fraction of a month at the commencement or expiration of the Lease
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Term, or in which the rate thereof changes pursuant hereto, shall be prorated
on a per diem basis.
(D) If the fixture day shall not occur by July 15, 1988, then,
notwithstanding anything else in this Section 5.1 to the contrary, no Minimum
Rent shall be payable by Tenant for the period commencing upon the
Commencement Date and containing that number of consecutive days thereafter
which shall equal the number of days between July 15, 1988 and the fixture
day, but not including any days between September 30 and the following March
1.
(E) Notwithstanding anything contained in this Section 5.1 to the
contrary, if the Inducement Tenant shall not open for business prior to March
1, 1989, then between March 1, 1989 and the date the Inducement Tenant opens
for business, the Minimum Rent payable by Tenant under Section 5.1(A) shall
be reduced by Two Hundred Eight Nine Dollars ($289.00) per day.
ARTICLE VI
REAL ESTATE TAXES
6.1 Tenant shall pay the real estate taxes allocable to the Demised
Premises (determined as hereinafter provided) for each tax year included
within the Lease Term and a pro rata portion thereof for the tax years
partially included in the Lease Term at the commencement and expiration
thereof. The real estate taxes allocable to the Demised Premises for any tax
year shall be the sum of (A) the real estate taxes upon the Demised Premises
for said tax year (excluding the land beneath the same) and (B) the product
of Tenant's Fraction (hereinafter defined) and the real estate taxes for said
tax year upon the land of the Shopping Center (including land under
buildings) and all improvements upon the Common Areas. Tenant's Fraction is
that fraction the numerator of which shall be the number of square feet of
floor area in the Demised Premises (exclusive of the nursery area) and the
denominator of which shall be the number of square feet of floor area in all
the buildings in the Shopping Center, but in no event shall Tenant's Fraction
exceed 47%. (Floor area of mezzanines not open to customers and incidental to
ground floor retail operations shall not be counted; other mezzanine floor
area, basement floor area and uppen story floor area shall be counted at half
actual floor area). If the Demised Premises (EXCLUDING THE LAND BENEATH THE
SAME) shall not be separately assessed, and are instead assessed jointly with
other improvements, an allocation shall be made to determine the real estate
taxes upon the Demised Premises (EXCLUDING THE LAND BENEATH THE SAME). Such
allocation of taxes shall be made according to the assessors records or
written assessors' certifications, or in the absense thereof, by the decision
of a majority of three appraisers, one designated by ▇▇▇▇▇▇▇▇, one by ▇▇▇▇▇▇,
and the third by the two so designated, the expenses of such appraisers being
borne equally by Landlord and ▇▇▇▇▇▇. If the Demised Premises and the Common
Areas are at any time separate tax parcels, then in lieu of the foregoing
computations, the real estate taxes allocable to the Demised Premises
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for any tax year shall be the sum of (A) the real estate taxes upon the tax
parcel constituting the Demised Premises for said tax year and (B) the
product of Tenant's Fraction and the real estate taxes upon the tax
parcels(s) constituting the Common Areas for said tax year. If the real
estate taxes of the Demised Premises for any year which commences after the
Commencement Date shall be increased on account of a re-valuation of the
Demised Premises because of any "change in ownership" by Landlord, Tenant
shall not pay or be charged with any increase in the real estate taxes
attributabale to or arising from such change during the first five years
after such change. Real estate taxes as used herein shall include all ad
valorem taxes and betterment assessments imposed or assessed upon or against
real estate by any federal, state, county, or municipal public authority
having jurisdiction except only that: (A) if Landlord shall at any time have
had the right to elect to pay any betterment assessments in installments, the
real estate taxes for any year shall include only the lowest such installment
of such betterment assessments as Landlord shall have had the election to
have allocated or accrued by law as a result of the exercise, in fact, of
Landlord's election so to pay in installments, and (B) if for a tax year
included within the Lease Term a betterment assessment is assessed on the
Shopping Center for an improvement such as a street or sewer, made prior to
the time the Demised Premises opened for business or in connection with the
construction of premises in the Shopping Center, such assessment shall not be
included in the real estate taxes upon the Shopping Center for such tax year
except as set forth in Section 6.6 below. Notwithstanding anything in this
lease to the contrary, real estate taxes shall not include any income, excess
profits, estate inheritance, succession, transfer, franchise, capital or
other tax or assessment upon Landlord or upon the rentals payable under this
lease, all of which shall be the obligation of Landlord. Taxes upon equipment
of occupants used in the conduct of their business (as distinguished from
equipment used in the operation of the building, such as heating and air
conditioning equipment) shall not be included in real estate taxes for the
purposes of applying said apportionment formula. Tenant shall pay all ad
valorem taxes allocable to such improvements in the Demised Premises, signs
of Tenant, goods and other personal property owned by Tenant or other
occupants, and such business equipment in the Demised Premises.
6.2 The real estate taxes for any lease year shall be the real estate
taxes for the tax year terminating during said lease year. If any lease year
shall be greater than or less than twelve (12) months or if the real estate
tax year shall be changed, an appropriate adjustment shall be made to carry
out the intent of the parties. If there shall be more than one taxing
authority, the real estate taxes for any period shall be the sum of the real
estate taxes for such period attributable to each taxing authority. If the
number of square feet of floor area of any building shall change during any
tax year, the condition existing upon the day as of which the real estate
taxes are assessed for such tax year shall control.
6.3 The real estate taxes for any tax year shall mean such amounts as
shall be finally determined to be the real estate taxes payable during such
tax year less any abatements, refunds or rebates
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made thereof (except that Landlord shall be solely entitled to any proceeds
from that certain Owner's Participation Agreement for the installation of
facilities which benefit property in Chico in addition to the Shopping
Center). For the purpose of determining payments due from Tenant to Landlord
in accordance with the provisions of this Article VI, (A) the real estate
taxes for any tax year shall be deemed to be the real estate taxes payable
during such tax year until such time as the same may be reduced by abatement,
refund or rebate, and (B) if any abatement, refund or rebate shall be made
for such tax year, the real estate taxes for such tax year shall be deemed
to be such real estate taxes as so reduced plus the expenses of obtaining the
reduction, with an appropriate adjustment to be made in the amount payable
from Tenant to Landlord on account of real estate taxes to be paid in that
tax year or any other tax year following the determination of the amount of
any such abatement, refund or rebate.
6.4 Tenant shall have such rights to contest the validity or amount of
any real estate taxes as permitted by law, either in its own name or in the
name of Landlord. Landlord shall cooperate with Tenant in any such contest
and, in conneciton therewith, shall make available to Tenant such information
in its files as Tenant may reasonably request. If any abatement, refund or
rebate shall be obtained, whether for the Demised Premises or the Shopping
Center as a whole, the expenses of obtaining the same shall be a first charge
thereon, and the balance shall be allocated as provided in this Article VI.
6.5 Landlord shall submit to Tenant copies of the real estate tax bills
for each tax year. Landlord shall bill Tenant for any amount that may be
payable by Tenant pursuant to the provisions of this Article VI. Said bill
shall be accompanied by a computation of the amount payable. The amount
payable by Tenant hereunder for any tax year shall be payable not later than
the time that Landlord shall be required to pay real estate taxes to the
taxing authority for said tax year, but, if Tenant shall not have received a
bill therefor together with such evidence of the cost and computation thereof
as Tenant may request, at least fourteen (14) days prior to said time for
payment by Landlord, then Tenant shall not be required to make such payment
until fourteen (14) days after the receipt of such bill and evidence. At any
time before or after the making of such payments, Tenant shall have the right
to audit or cause to be audited Landlord's computations and if such audit
fails to substantiate the amount of taxes imposed or to be imposed by
Landlord nor Tenant, then Tenant shall be entitled to a reduction or refund.
At Tenant's election, any such refund shall be paid in cash to Tenant or
credited by ▇▇▇▇▇▇ against its future obligations under this Article VI. (If
real estate taxes are payable to any taxing authority for any tax year in
installments, the amount payable by Tenant hereunder shall be payable in
similar installments. If real estate taxes are payable to different taxing
authorities for any tax year at different times, an appropriate apportionment
shall be made of the amount payable by Tenant for said tax year and the
apportioned amounts shall be payable at such times.) ▇▇▇▇▇▇▇▇ agrees that
real estate taxes upon the Shopping Center shall be paid by Landlord prior to
the last day that the same may be paid without penalty or interest, or if a
discount shall be available for early
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payment, prior to the last day that such discount shall be available. Without
cost to Tenant, Landlord shall bear all interest, penalties, late charges and
lost discount amounts incurred as a result of Landlord's failure to timely
pay any installment of real estate taxes, except to the extent such interest,
penalties, late charges and lost discount amounts are due to Tenant's failure
to comply with its obligations under this Section 6.5.
6.6 The Demised Premises are already or shall be subject to two
certain betterment assessments not to exceed a total of $230,000, one of
which is more particularly described in exception number 3 in Title Report
Lot 4 ("Village Park Refunding Assessment") and the other is an assessment to
be created in connection with the construction of ▇▇▇▇▇▇▇ Avenue and
infrastructure thereunder ("Future ▇▇▇▇▇▇▇ Avenue Assessment," hereinafter
the Village Park Refunding Assessment and the Future ▇▇▇▇▇▇▇ Avenue
Assessment shall be at times referred to as the "Approved Assessments").
Landlord shall pay all charges due and payable for the Village Park Refunding
Assessment during the first five (5) years of the Lease Term, and for the
Future ▇▇▇▇▇▇▇ Avenue Assessment during the first five (5) years after
charges therefor are first due and payable. Thereafter, during the next ten
years after each of the aforementioned 5 year periods, Tenant shall pay all
charges for the respective Approved Assessment, except that in no event shall
Tenant pay more than $20,000 for said Approved Assessments in any one year,
or a total of more than $200,000 for such assessments.
ARTICLE VII
REPAIRS AND UTILITIES
7.1 TENANT'S REPAIRS. Except as provided in Sections 7.2 and 7.3
herein, Tenant shall make all repairs and alterations to the property which
Tenant is required to maintain, as hereinafter set forth, which may be
necessary to maintain the same in as good repair and condition as the same
are on the Commencement Date or which may be required by any laws, ordinances
or regulations of any public authorities having jurisdiction, including any
applicable subsequent amendments or modifications thereto, reasonable wear
and tear and damage excepted and subject to Articles VIII, IX and X. Upon the
expiration or other termination of the Lease Term, Tenant shall remove its
goods and effects and those of all persons claiming under it and shall yield
up peaceably to Landlord the Demised Premises with so much of the same as
Tenant is obligated to maintain pursuant to the provisions of this
Section 7.1 in as good repair and condition as the same were in on the
Commencement Date, reasonable wear and tear excepted and subject to
Articles VIII, IX and X. However, notwithstanding anything in this lease
contained to the contrary, Landlord shall reimburse Tenant for the reasonable
cost of making all repairs and alterations to the property which Tenant is
required to maintain which may be required as the result of repairs,
alterations, other improvements or installations made by Landlord or
Landlord's agents or employees, unless done by Landlord pursuant to
Section 13.1. The property which Tenant is required to maintain is the
interior of the Demised
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Premises, including, without limitation, all glass and all utilities,
conduits, fixturew and equipment within the Demised Premises serving the
Demised Premises exclusively, but excluding all property which Landlord is
required to maintain below provided. If at any time during the Lease Term
Tenant shall make any repairs or replacements to the heating-ventilating air
conditioning system serving the Demised Premises ("HVAC") that are not
customarily included in a regular service and maintenance contract, then
Tenant shall be reimbursed by Landlord, upon demand, for an amount equal to
the product of the cost to Tenant thereof multiplied by a fraction the
denominator of which is 120 and the numerator of which is 120 minus the
number of months between the date of the making of such repairs and/or
replacements, in each case, and the date of the termination of the Lease
Term. Said reimbursement may be effected by ▇▇▇▇▇▇'s deducting the
amount thereof from the final payments of Minimum Rent due and
payable hereunder. (If the Lease Term shall be extended subsequent to the
making of any such repairs "the termination of the term" shall be deemed to
be the termination of the Lease Term as so extended, and Tenant shall
thereupon reimburse Landlord for any excess reimbursement paid by ▇▇▇▇▇▇▇▇ in
accordance with the preceding sentence.)
7.2 LANDLORD REPAIRS. Landlord shall make all repairs and alterations
to the property which Landlord is required to maintain, as hereinafter set
forth, which may be necessary to maintain the same in good repair and
condition or which may be required by any laws, ordinances or regulations of
any public authorities having jurisdiction, including any applicable
subsequent amendments or modifications thereto, subject to Articles IX and X.
However, notwithstanding anything in this lease contained to the contrary,
Tenant shall reimburse Landlord for the reasonable cost of making all
repairs and alterations to the property which Landlord is required to
maintain which may be required as the result of repairs, alterations, other
improvements or installations made by Tenant or any subtenant or
concessionaire of Tenant or the agents or employees of any of them, unless
done by Tenant pursuant to Section 13.2. The property which Landlord is
required to maintain is the foundation, the roof, the exterior walls, the
roof drainage system, the canopy, the structural parts of the Demised
Premises, including, without limitation, slab-floors, (but excluding all
glass), and, to the extent located within the walls, ceiling or floors of
the Demised Premises and not readily accessible by means of removable panels,
access doors or the like, all wiring, plumbing, pipes, conduits and other
utilities, plus all Common Areas and Common Facilities of the Shopping
Center, and, to the extent not included in the foregoing, all utilities,
conduits, fixtures and equipment serving the Demised Premises which also
serve other premises or are located within the Shopping Center but outside
the Demised Premises. The costs for the above described maintenance to the
Common Areas and Common Facilities shall be included within Landlord's Common
Area Costs described in Schedule B, Paragraph 8. In addition, Landlord shall
make any repairs to the property Tenant is required to maintain which are
required as a result of a defect in, or failure of repair of, the property
Landlord is required to maintain.
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7.3 SPECIAL REPAIRS. Notwithstanding anything herein contained to the
contrary, it shall be the obligation of Landlord to make all repairs and
alterations (other than those required as the result of repairs, alterations,
other improvements or installations made by Tenant or any subtenant or
concessionaire of Tenant or the agents or employees of any of them) to the
property which Tenant is otherwise required to maintain which may become
necessary during the first twelve months of the Lease Term (or to the extent
of the applicable construction contract warranty, if longer than twelve
months), or which may be required during the Lease Term by any laws,
ordinances or regulations of any public authorities having jurisdiction other
than as a result of Tenant's particular use of the Premises. Notwithstanding
anything in Section 7.1 contained to the contrary, ▇▇▇▇▇▇▇▇ agrees that in
addition to making any repairs or alterations as required by the provisions
of Section 7.2 hereinabove, Landlord shall make any repairs and alterations
that shall be required at any time during the Lease Term as a result of
(i) movement of the "Building" (as defined in Schedule A hereof) due to causes
other than earthquake, such as settling, or as the result of settling of the
Common Areas, provided that a certified engineer selected jointly by Landlord
and Tenant states that such alteration or repair should be made, and provided
further that if Landlord and Tenant are unable to select such engineer
jointly, then Landlord and Tenant shall each select an engineer, such
engineers shall then jointly select a third engineer, and a majority vote of
said engineers shall determine whether the alteration or repair should be
made, (ii) defective materials or workmanship in the construction thereof, or
(iii) Landlord's failure to construct the Demised Premises or the Common
Areas as required by the provisions of Schedule C herein. Landlord agrees
that Landlord shall give to Tenant the benefit of all guaranties Landlord may
have from its contractors or materialmen or is required by Schedule C to have
therefrom and that Tenant may enforce such guaranties either in Tenant's name
or in ▇▇▇▇▇▇▇▇'s name.
7.4 UTILITIES. Landlord agrees that during the Lease Term the Demised
Premises shall be connected to the electric and gas lines serving the
municipality wherein the Demised Premises are located and to the water and
sewer systems of such municipality. Landlord agrees that during the Lease
Term (i) all such water, electricity, and gas shall be in such amounts per
unit of time as shall be required by the provisions of Schedule C (including,
without limitation, sufficient water for air conditioning) and (ii) all such
sewerage disposal facilities shall be of such capacity as shall be required
by the provisions of Schedule C. If for any reason the Demised Premises
cannot be connected to such municipality's water and/or sewer systems on the
Commencement Date, Landlord shall then provide water and/or sewer systems
which (i) shall be of such capacity as shall be required by the provisions of
Schedule C, (ii) shall be subject to the prior written approval of Tenant and
(iii) shall meet the requirements of all public authorities having
jurisdiction with respect thereto. Except as necessary to make required
repairs or alterations, Landlord shall not take, or permit any occupant of
the Shopping Center or any person claiming under Landlord or any such
occupant to take, any action which shall interrupt, or interfere with, any
electric, gas, water, sewerage or telephone
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service to the Demised Premises. Landlord shall provide Tenant with
reasonable written notice (not less than 3 days in advance) of any action
which is likely to interfere with or interrupt such services to the Demised
Premises, including action reasonably necessary to make required repairs or
alterations, and Landlord shall not take, or give permission to any occupant
of the Shopping Center or any person claiming under Landlord or any such
occupant, to take any such action without Tenant's consent, which shall not
be unreasonably withheld or delayed. Notwithstanding such notice, in the
event that Landlord causes or permits any such interruption or interference
to occur and continue for longer than one (1) day, ▇▇▇▇▇▇'s Minimum Rent
shall be abated for each additional day that such interruption or
interference continues in proportion to the interruption or interference.
7.5 UTILITIES EASEMENTS. Tenant shall have the right, license and
easement within the Building and Shopping Center to install, replace,
maintain and use utilities conduits serving the Demised Premises provided
such conduits shall be located only in areas subject to the reasonable
approval of the Landlord and Tenant shall do the same in such manner as shall
keep to a reasonable minimum any interference with the business of the
Shopping Center. To the extent meters, controls and conduits for the
utilities systems serving the Demised Premises are situated outside the
Demised Premises in other premises within the Shopping Center, Tenant shall
have access thereto, at all times, in common with Landlord and other lessees
in the Shopping Center.
ARTICLE VIII
ALTERATIONS
8.1 Tenant agrees that any repairs, alterations, other improvements or
installations made by Tenant to or upon the Demised Premises shall be done in
a good workmanlike manner and in conformity with all laws, ordinances and
regulations of all public authorities having jurisdiction, that new
materials of good quality shall be employed therein, that the structure of
the Demised Premises shall not be endangered or impaired thereby, that the
Demised Premises shall not be diminished in value thereby, and that, except
for signs, antennae, and heating and air conditioning and utilities equipment
Tenant is permitted to erect and maintain pursuant to the provisions of this
lease, neither the perimeter of the Demised Premises nor the height of the
Demised Premises shall be increased without the written consent of Landlord.
Tenant agrees that Tenant shall not make any alterations to the foundation,
roof, exterior walls, gutters, downspouts, canopy or any structural parts of
the Demised Premises without first submitting plans and specifications
thereof to Landlord. Landlord shall have the right to disapprove of the same
if, and only if, the same violate any of the preceding provisions of this
Section 8.1. Failure of Landlord to give notice of approval or disapproval of
said plans and specifications within thirty (30) days after ▇▇▇▇▇▇'s
submission thereof to Landlord shall be deemed approval. In addition, Tenant
shall give Landlord prior notice of all alterations costing more than $75,000
(as increased
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each year by the CPI Index as defined in Section 5.1(B)) so that Landlord has
a reasonable opportunity to post a notice of non-responsibility, except that
Tenant shall not be in breach of this obligation unless it fails to give
prior notice, a mechanic's lien is recorded against ▇▇▇▇▇▇▇▇'s fee interest
in the Demised Premises, and Tenant fails to cause such lien to be discharged
of record as provided in Section 8.5 hereof. All salvage in connection with
any work done by Tenant pursuant to the provisions of this Article may be
disposed of by ▇▇▇▇▇▇. It is agreed and understood that ▇▇▇▇▇▇▇▇ will accept
the Demised Premises as altered pursuant to the provisions hereof without any
obligation upon Tenant to restore the Demised Premises to their former
condition.
8.2 Landlord agrees that Tenant may erect and maintain its usual
signs, from time to time, and provided such signs are in compliance with
local codes, upon the exterior of the Demised Premises and the usual signs,
from time to time, of any subtenants of Tenant. ▇▇▇▇▇▇▇▇ further agrees that
Tenant may erect and maintain upon the roof of the Demised Premises antennae
for electronic receivers and transmitters in the Demised Premises and that
Tenant may erect and maintain upon the roof and on the adjacent ground
utilities equipment serving the Demised Premises. Tenant shall be
responsible for such signs, antennae and equipment, and for obtaining all
government approvals with respect thereto.
8.3 All repairs, alterations, other improvements or installations
made to or upon the Demised Premises which are so attached to the realty that
same will be by law deemed to be a part of the realty shall (subject,
however, to the provisions of Section 8.1 and the provisions of the following
sentence) be the property of Landlord and remain upon and be surrendered with
the Demised Premises as a part thereof upon the termination of this lease.
Notwithstanding the foregoing, all trade fixtures, (including without
limitation, compressors, generators and hydraulic equipment), lighting
fixtures, heat and air conditioning equipment (other than ducts), and signs,
whether by law deemed to be a part of the realty or not, installed at any
time by Tenant or anyone claiming under Tenant (at Tenant's sole cost and
expense without any contribution from or reimbursement by Landlord and which
are not replacements of property installed by Landlord) shall remain the
property of Tenant or persons claiming under Tenant and may be removed by
Tenant or any person claiming under Tenant at any time or times during the
Lease Term or any occupancy by Tenant thereafter, Tenant agreeing to repair
any and all damage to the Demised Premises occasioned by the removal by
Tenant or any person claiming under Tenant of any property from the Demised
Premises.
8.4 Tenant shall procure all necessary governmental permits before
making any repairs, alterations, other improvements or installations to or
upon the Demised Premises. Landlord shall cooperate with Tenant in obtaining
such permits. ▇▇▇▇▇▇ agrees to save harmless and indemnify Landlord from any
and all injury, loss, claims or damage to any person or property occasioned
by or arising out of the doing of any such work by ▇▇▇▇▇▇.
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8.5 Tenant shall permit no mechanic's, materialman's or other lien
against the Demised Premises or property of which the Demised Premises are a
part in connection with any materials, labor or equipment furnished, or
claimed to have been furnished, to or for Tenant, and if any such lien shall
be filed against the Demised Premises or property of which the Demised
Premises are a part Tenant shall provide Landlord with written notice
thereof and shall cause said lien to be discharged, provided, however, that
if Tenant desires to contest any such lien it may do so as long as the
enforcement thereof is stayed, but in any event, Tenant shall either cause
any such lien to be discharged of record within twenty-one (21) days of any
written request of Landlord (if Tenant is not longer contesting such lien) or
any written request based on any requirements of any mortgagee or prospective
mortgagee or buyer or prospective buyer in escrow for the Demised Premises or
property including the Demised Premises, (whether or not Tenant is still
contesting such lien), or in lieu thereof, if and while contesting the same
lien as aforesaid, deposit with the buyer's escrow, or the mortgagee or
prospective mortgagee, pending such contest, a sum or bond sufficient to
cover the amount of said lien and all interest, penalties or costs that would
be payable to discharge such lien if such lien were valid provided such
mortgagee or buyer may use such sum or bond to cause the discharge of said
lien if its foreclosure is imminent.
8.6 Landlord shall permit no mechanic's, materialman's or other
lien against the Demised Premises or property of which the Demised
Premises are a part in connection with any materials, labor or equip-
ment furnished, or claimed to have been furnished, to or for Landlord
or any other occupant of premises in the Shopping Center, and if any
such lien shall be filed against the Demised Premises or property of
which the Demised Premises are a part Landlord shall cause the same
to be discharged, provided, however, that if Landlord desires to
contest any such lien it may do so as long as the enforcement thereof
is stayed.
ARTICLE IX
FIRE AND OTHER CASUALTY
9.1 (A) If, at any time from and after the Commencement Date, the
Demised Premises or any part thereof shall be damaged or destroyed by fire,
the elements or other casualty for which insurance is required to be carried
by Tenant as hereinafter provided, then, except as provided in Section 9.2
hereof, Tenant shall, promptly thereafter, repair or restore the Demised
Premises to substantially the same condition they were in immediately prior
to such casualty, and Tenant shall not be entitled to any rent abatement with
respect thereto. All insurance proceeds or damages recovered on account of
any damage or destruction by fire, the elements or other casualty shall be
made available for the payment of the cost of the aforesaid repair or
restoration. If the amount of said insurance proceeds shall be less than Two
Hundred Fifty Thousand Dollars ($250,000), said insurance proceeds shall be
paid over to Tenant. If the amount of said
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insurance proceeds shall be greater than Two Hundred Fifty Thousand Dollars
($250,000), said insurance proceeds shall be deposited in escrow with
instructions to the escrow holder that the escrow holder shall disburse the
same to Tenant as the work of repair or restoration progresses upon
certificates of the architect or engineer supervising the repair or
restoration that the disbursements then requested, plus all previous
disbursements made from said insurance proceeds, plus the amount of such
"deductible", do not exceed the cost of the repair or restoration already
completed and paid for, and the balance in the escrow fund is sufficient to
pay for the estimated cost of completing the repair and restoration. The
escrow holder shall be the institutional lender holding a first mortgage upon
the Demised Premises or the property of which the Demised Premises are a part
if there shall be an institutional lender holding such first mortgage and if
such institutional lender shall be willing to accept said escrow; otherwise
the escrow holder shall be any bank mutually agreeable to Landlord and
Tenant. If the insurance proceeds shall be less than the cost of repair or
restoration, Tenant shall pay the excess cost and Tenant shall be responsible
for the amount of any deductibles. If the insurance proceeds shall be greater
than the cost of repair or restoration, the excess shall belong to the Tenant.
(B) If the Common Areas or any part thereof, shall be damaged or
destroyed by fire, the elements, the act of any public authority or other
casualty or if the Demised Premises shall be damaged or destroyed by any
casualty for which insurance is not then required to be carried by Tenant
(collectively "Landlord's Damages"), then Landlord shall, promptly thereafter,
repair or restore Landlord's Damages to substantially the same condition they
were in immediately prior to such casualty, except as hereinafter otherwise
provided and except that Tenant shall be liable for any damage or destruction
to the Demised Premises to the extent caused by Tenant's negligence, unless
such damage or destruction is insured by Landlord. If ▇▇▇▇▇▇▇▇'s Damages shall
render the whole or any part of the Common Areas or Demised Premises unsuitable
for the use for which they were intended, a just proportion of the rent and all
other amounts payable by Tenant pursuant to this lease, according to the nature
and extent of the injury to Tenant's business, shall be suspended or abated
until the fifteenth (15th) day after the completion of the repairs or restor-
ations to the substantially the same condition they were in immediately prior
to such casualty; rent and any such other amounts paid in advance for a period
beyond the date on which the same were so rendered unsuitable for the use for
which the same were intended shall be apportioned and adjusted. Whenever in
this lease it is provided that rent and any such other amounts shall be
suspended or abated for any period according to the nature and extent of the
injury to ▇▇▇▇▇▇'s business, Tenant's sales figures for comparable periods shall
be considered, together with all other evidence. All insurance proceeds or
damages recovered on account of Landlord's Damages shall be made available
for the payment of the cost of the aforesaid repair and restoration. Tenant
shall provide Landlord written notice of any of Landlord's Damages which
Tenant intends to repair or restore. Unless within ten (10) days of said
notice Landlord notifies Tenant that Landlord shall make such repairs or
restorations, and thereafter diligently commences
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and completes such work, Tenant may elect to undertake or complete any repair
or restoration of Landlord's Damages at reasonable cost and in a good and
workmanlike fashion and if Tenant makes such an election, Tenant shall be
entitled to use any insurance proceeds and any damages collected from third
parties and shall be entitled to immediate reimbursement from Landlord for
any funds expended in excess of any such insurance proceeds and damages
collected from third parties and may also elect to recapture any unreimbursed
amounts (the "Recapture Deficit") as provided in Section 9.4 herein.
(C) If more than sixty percent (60%) of the ground floor area, in the
aggregate, of all buildings in the Shopping Center (excluding the Demised
Premises from the computation thereof) shall, for any period, be closed for
business as a result of damage or destruction, and if Landlord shall fail to
complete the repair and restoration of all such damage within one (1) year
after the occurrence thereof then, and prior to the completion thereof,
Tenant may terminate this lease at its election, by giving Landlord notice
thereof and the term of this lease shall then terminate on the date specified
therefor in such notice.
9.2 It is agreed and understood that with respect to any damage or
destruction to the Demised Premises as provided in Section 9.1.(A) or 9.1(B),
(1) if during the fourth semi-annual period preceding the expiration of the
Lease Term, the Demised Premises shall be so damaged or destroyed to the
extent of twenty percent (20%) or more of their insurable value, or (2) if
during the third semi-annual period preceding the expiration of the Lease
Term, the Demised Premises shall be so damaged or destroyed to the extent of
fifteen percent (15%) or more of their insurable value, or (3) if during the
second semi-annual period preceding the expiration of the Lease Term, the
Demised Premises shall be so damaged or destroyed to the extent of ten
percent (10%) or more of their insurable value, or (4) if during the
semi-annual period immediately preceding the expiration of the Lease Term,
the Demised Premises shall be so damaged or destroyed to the extent of five
percent (5%) or more of their insurable value, either Landlord or Tenant may,
if either shall so elect, terminate the Lease Term by notice to the other
within twenty (20) days after such damage or destruction. If Landlord shall
give such notice of termination at a time when Tenant shall have the right to
exercise an election to extend the Lease Term an extension period of at least
five (5) years, and if within fifteen (15) days after Tenant shall receive
such notice of termination from Landlord, Tenant shall exercise such
election, then such termination shall become void and of no force or effect.
In the event of any termination of the Lease Term pursuant to the provisions
of this Section 9.2, the termination shall become effective on the twentieth
(20th) day after the giving of the notice of termination, neither Landlord
nor Tenant shall be obligated to repair or restore any damage or destruction
caused by the fire or other casualty, and said insurance proceeds, if any,
shall belong to Landlord.
9.3 Tenant shall maintain at all times during the Lease Term with
respect to the Demised Premises insurance against loss or damage by fire, the
so-called extended coverage casualties, vandalism and malicious mischief and
sprinkler leakage (if there shall be a sprinkler
-20-
system). Tenant may, at its election, maintain insurance with respect to
additional casualties and events. Said insurance shall be in an amount not
less than eighty percent (80%) of the full insurable value of the Demised
Premises, and said insurance may be written with a so-called eighty percent
(80%) co-insurance clause, and in such event sufficient insurance shall be
carried so that the insured shall not be a co-insurer. Said insurance may be
written with a so-called "deductible" which is ▇▇▇▇▇▇'s usual deductible
from time to time. Insurance against any or all of such risks may be
maintained under a blanket policy covering the Demised Premises and other real
estate of Tenant and/or its affiliated business organizations.
Notwithstanding the foregoing, unless both Tenant and Guarantor have a net
worth of less than Seventy-Five Million Dollars ($75,000,000), Tenant may
self-insure with respect to any insurance obligations which it is otherwise
required to maintain under this lease. Nothing herein contained, however,
shall affect the obligation of Tenant set forth in Section 9.1(A) to repair
or restore the Demised Premises. The policies of such insurance shall name
Landlord and ▇▇▇▇▇▇ as insureds, as their interests may appear, and, subject
to the provisions of said Section 9.1 shall be payable in case of loss to any
holders of any mortgages which secure loans made to Landlord or its
predecessors upon the property of which the Demised Premises are a part, as
their interest may appear. Such policies of insurance shall provide that no
act or omission of any person named as insured thereunder shall invalidate
the interest of, or be a defense against, any other person named as insured
thereunder. Tenant shall have the right to adjust with the insurance
carriers the amount of the loss upon such policies. Said insurance shall be
written by responsible insurance companies authorized to do business in the
state wherein the Demised Premises are located. Upon request of Landlord,
▇▇▇▇▇▇ agrees that not less than ten (10) days prior to the Commencement Date
and not less than ten (10) days prior to the expiration of each policy of
such insurance, Tenant shall deliver to Landlord certificates of such
insurance, or the renewals thereof, as the case may be.
9.4 If at any time during the Lease Term there is a Recapture Deficit,
then Tenant shall have the right to reimburse itself for such amount out of
the monthly payments of Minimum Rent thereafter due and payable. In
addition, if there is a Recapture Deficit at the expiration of the Lease
Term, Tenant shall have the right to continue in use and occupancy of the
Demised Premises without payment of Minimum Rent for a number of days which
number when multiplied by the per diem Minimum Rent (at the rate prevailing at
the expiration of the Lease Term) shall equal the Recapture Deficit.
9.5 If Tenant may not self-insure and is obligated to purchase casualty
insurance under Section 9.3, all such insurance policies shall be issued by
financially responsible insurance companies qualified to do business in the
State of California. Furthermore, such policies shall not contain a
deductible amount greater than Tenant's usual deductible from time to time.
All such policies shall name as additional insureds Landlord and any
mortgagee or lender of Landlord having a security interest in the Demised
Premises. Tenant shall cause executed copies of such policies or
certificates thereof to be delivered to Landlord
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within ten (10) days after ▇▇▇▇▇▇'s receipt of such policies and thereafter
renewal policies or certificates within ten (10) days prior to the expiration
of such policies. All such policies shall contain a provision that the
insurance company will provide Landlord, with at least ten (10) days prior
written notice of any cancellation or lapse in the policy, any reduction in
the amounts thereof, or any material change in the terms of coverage. In
addition, all such policies shall be written as primary policies, not
contributing and not in excess of coverage which Landlord may carry.
ARTICLE X
EMINENT DOMAIN
10.1 If after the execution of this lease and prior to the expiration of
the Lease Term the whole of the Demised Premises shall be appropriated by
right of eminent domain (which, for the purposes of this Article X, includes
any conveyance made to the condemning authority under the threat of
condemnation), then the Lease Term shall cease as of the time the fee simple
interest shall be vested in the taking authority, and rent and all other
payment under this lease shall be apportioned and adjusted as of the time of
termination. Tenant shall have the right at its election to continue to
occupy the Demised Premises, to the extent permitted by law, for all, or such
part, as Tenant may elect, of the period between the time of such
appropriation and the time when physical possession of the Demised Premises
shall be taken, subject to the provisions of this lease insofar as the same
may be made applicable to such occupancy by Tenant, but the amount, if any,
charged to Tenant by taking authority or its assigns for rent or use and
occupancy shall be deductible from the rent paid or payable by Tenant
hereunder.
10.2 If by right of eminent domain or any other action of any public
authority:
(i) a part of the Demised Premises shall be appropriated
and if as a result thereof (and all previous takings) the
ground floor area of the Demised Premises shall be reduced to
less than ninety percent (90%) of the ground floor area set
forth in Schedule A of this lease, or
(ii) a part of the Common Areas shall be appropriated and if
as a result thereof (and all previous takings) the Common Areas
(defined in Paragraph 2 of Schedule B to this lease) shall be
reduced in size by twenty percent (20%) or more, or
(iii) the Parking Areas shall cease to be satisfactory
access for pedestrians and motor vehicles to and from ▇▇▇▇▇▇▇
Avenue, and E. 20th Street, or
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(iv) there shall cease to be satisfactory access for
pedestrians between the Parking Areas and the Demised Premises,
or
(v) there shall cease to be satisfactory access for trucks
to and from the service door(s) of the Demised Premises, or
(vi) the lease of the Inducement Tenant shall be terminated,
or
(vii) any part of the Demised Premises shall be appropriated
during the last year of the Lease Term,
then Tenant may, if Tenant shall so elect, terminate the Lease Term by giving
Landlord notice of the exercise of such an election within twenty (20) days
after the receipt by ▇▇▇▇▇▇ from Landlord of notice of such appropriation.
If by right of eminent domain any part of the Demised Premises shall be
appropriated during the last year of the Lease Term, then Landlord may, if
Landlord shall so elect, terminate the Lease Term by giving Tenant notice to
the exercise of such election within twenty (20) days after the receipt by
Landlord of notice of such appropriation. If Landlord shall give such notice
of termination at a time when Tenant shall have the right to exercise an
election to extend the Lease Term an extension period of at least five (5)
years, and if within fifteen (15) days after Tenant shall receive such notice
of termination from Landlord, Tenant shall exercise said election, then such
notice of termination shall become void and of no force or effect. In the
event of a termination under the provisions of this Section, the termination
shall be effective as of the time that physical possession of the premises so
appropriated shall be taken, and rent and all other payments pursuant to the
lease shall be apportioned and adjusted as of the time of termination, but
the amount charged by the taking authority or its assigns for rent or use and
occupancy between the time of appropriation and the time of termination,
shall be deductible from rent paid or payable hereunder. If there shall be
an appropriation by right of eminent domain and if the Lease Term shall not be
terminated as aforesaid, then the Lease Term shall continue in full force and
effect and Landlord shall, within a reasonable time after physical possession
is taken of the premises appropriated, restore what may remain of the Demised
Premises and of the Common Areas and Common Facilities to substantially the same
condition they, respectively, were in prior thereto, subject to reduction in
size thereof. A just proportion of the rent and all other amounts payable by
Tenant pursuant to this lease, according to the nature and extent of the
injury to Tenant's business, shall be suspended or abated until the
forty-fifth (45th) day after what may remain of the Demised Premises and the
Common Areas and Common Facilities shall be restored, as aforesaid, and
thereafter a just proportion of the rent and such other amounts, according to
the nature and extent of the part of the Demised Premises and the Common
Areas so appropriated, shall be suspended or abated for the balance of the
Lease Term, for the purpose of which rent shall be deemed allocable fifty
percent (50%) to the Demised Premises and fifty percent (50%) to the Common
Areas and Common Facilities.
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10.3 Landlord reserves to itself, and ▇▇▇▇▇▇ assigns to Landlord, all
rights to damages accruing on account of any appropriation by eminent domain
or by reason of any act of any public authority for which damages are
payable. ▇▇▇▇▇▇ agrees to execute such instruments of assignments as may be
reasonably requested by Landlord in any petition for the recovery of such
damages if requested by Landlord, and to turn over to Landlord any damages
that may be recovered in any such proceeding. It is agreed and understood,
however, that Landlord does not reserve to itself and Tenant does not assign
to Landlord: (i) the cost of trade fixtures installed by Tenant or any
person claiming under Tenant at the sole cost and expense of Tenant or such
other person, (ii) the unamortized cost to Tenant of any improvements made by
Tenant to the realty which shall not remain or be restored in the part of the
Demised Premises not taken including any unreimbursed amounts subject to
recapture as provided in Section 9.4, (iii) moving and relocation costs, and
(iv) the loss of tenant's leasehold interest (bargain value of the lease)
(collectively "Tenant's Damages"). If any appropriation by right of eminent
domain shall result in the termination of the Lease Term as above provided,
Landlord shall pay to Tenant from the amount awarded to it as damages
therefore an amount equal to Tenant's Damages except to the extent that
▇▇▇▇▇▇ receives a separate award from the condemning authority to cover such
losses; provided that any payment to Tenant for Tenants Damages (excluding
any unreimbursed amounts subject to recapture as provided in Section 9.4)
shall not reduce any award to Landlord below the amount awarded for or
allocable to the sum of the then present value of the income stream to the
Landlord under this lease plus the then present value of the Landlord's
remainder interest in the fee title to the Demised Premises upon the
termination of the lease. The unamortized cost to Tenant of any improvement
made by Tenant to the realty shall be determined in accordance with the
straight-line method of amortization and the life expectancy of such
improvement used by Tenant for federal income tax purposes. As used
hereinbefore, "the cost to Tenant" of any improvement shall mean the actual
cost to Tenant of making such improvement less any contribution thereto, or
reimbursement thereof, made by Landlord to Tenant, including, without
limitation, reimbursement effected by deductions from rent.
ARTICLE XI
INDEMNIFICATION
11.1 Tenant shall save Landlord harmless from, and defend and indemnify
Landlord against, any and all injury, loss or damage or claims for injury,
loss or damage, of whatever nature, to any person or property caused by or
resulting from any act, omission or negligence of Tenant or any subtenant or
concessionaire of Tenant or any agent or employee of Tenant or any subtenant
or concessionaire of Tenant. It is a condition of this save harmless and
indemnification that Tenant shall receive prompt notice of any such claim
against Landlord.
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11.2 Landlord shall save Tenant harmless from, and defend and indemnify
Tenant against, any and all injury, loss or damage or claims for injury, loss
or damage, of whatever nature, to any person or property caused by or
resulting from any act, omission or negligence of Landlord or its agents or
employees. It is a condition of this save harmless and indemnification that
Landlord shall receive prompt notice of any such claim against Tenant.
11.3 The provisions of this Article XI shall be subject to the
provisions of Section 14.1 below.
11.4 If and when Tenant shall elect to maintain a policy of
comprehensive general liability insurance with respect to the Demised
Premises, and if Landlord shall be named as an additional insured thereunder,
then in such event Tenant shall, upon request (a) deliver certificates of
such insurance to Landlord and give Landlord not less than ten (10) days
notice of cancellation or expiration thereof, and (b) pay the amount of any
so-called deductible applicable to any claim under such policy involving
Landlord and/or Tenant. If and when Tenant shall elect not to maintain such a
policy of insurance or not to name Landlord as additional insured thereunder,
then in such event (in addition to any other insurance which Landlord may
carry at its own expense) Landlord may, at its election, maintain a policy of
comprehensive general liability insurance with respect to the Demised
Premises, naming only Landlord as insured ("Landlord's Insurance Policy") and
if Landlord shall so elect then (i) Landlord shall give notice thereof to
Tenant and (ii) so long as Tenant shall so elect not to maintain such a
policy, and if the net worth of Tenant and Guarantor (as determined by
generally accepted accounting principles) are both then less than
$75,000,000.00, Tenant shall reimburse Landlord for the reasonable cost to
Landlord of the premiums upon Landlord's Insurance Policy, but Tenant's
liability under this clause shall not exceed the cost of insurance coverage
for Landlord having limits which do not exceed $2,000,000 for injury in any
one occurrence. All public liability and property damage policies shall
contain a provision that Landlord, although named as an insured, shall
nevertheless be entitled to recovery under said policies for any loss
occasioned by Landlord, its employees or agents.
ARTICLE XII
DEFAULT
12.1 The failure by ▇▇▇▇▇▇ to make, when due, any payment of rent or
other sum required to be made by Tenant hereunder, where such failure shall
continue for a period of fifteen (15) days after written notice from Landlord
of Tenant's failure to make such payments shall constitute a default ("Event
of Default") hereunder by ▇▇▇▇▇▇.
12.2 Upon the occurrence of an Event of Default under Section 12.1,
Landlord may terminate this lease upon written notice to Tenant. Should
Landlord exercise its rights hereunder, Tenant shall be given sixty (60) days
in which to remove its personal property. Landlord
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may dispose of any such property remaining in the Demised Premises thereafter
in the manner provided by law.
12.3 In the event Landlord terminates the lease as provided in Section
12.2, Tenant shall remain liable for the Minimum Rent and all other payments
reserved herein plus the reasonable cost of obtaining possession of and
re-letting the Demised Premises, including, without limitation, any
reasonable repairs and alterations necessary to prepare the Demised Premises
for re-letting, less the rents received from such re-letting. Any amounts so
owing by Tenant shall be paid monthly on the date herein provided for the
payment of Minimum Rent.
12.4 After any assignment of ▇▇▇▇▇▇'s interest in this lease, Landlord
shall not exercise any rights or remedies under this Article XII on account
of any default in payment of any rent or other sum of money unless Landlord
shall give notice to the Tenant named herein, as well as the tenant in
possession, of such default and the opportunity to cure each such default
within the period of time after such notice provided in Section 12.1 of this
lease. After such notice, if the Lease Term shall be terminated pursuant to
the provisions of this Article XII, then the tenant named herein shall not be
liable for the payment of any rent or for the performance or observance of
any agreements or conditions to be performed or observed which become due or
arise after the date of such termination or with respect to periods following
such termination unless at or about the time of such termination Landlord
shall have offered to the tenant named herein a lease for the balance of the
Lease Term upon the provisions of this lease contained to be thereafter
performed by the parties hereunder; the tenant named herein shall have a
period of thirty (30) days after receipt of such offer to accept such offer.
If the tenant named herein shall accept ▇▇▇▇▇▇▇▇'s offer for such a lease
within said thirty (30) days, then such lease shall be deemed to mitigate
Landlord's damages
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and Landlord waives all its claims under Section 12.2(b) and (c) hereinabove
with respect to the aforesaid termination.
12.5 Landlord shall not have any lien, for the performance of any
obligations of Tenant, upon any fixtures, machinery, equipment, or goods,
wares or merchandise or other personal property, and Landlord hereby
expressly waives the provisions of any law giving to Landlord such a lien.
12.6 If any person to whom Tenant shall not then be paying rent under
this lease shall demand payment of rent from Tenant, or any other amount
payable to Tenant under this lease, alleging his or its right to receive such
rent or other amount as a result of a transfer of Landlord's interest in this
lease or otherwise, Tenant shall not be obligated to honor such demand unless
Tenant shall receive written instructions to do so from the person to whom
Tenant shall then be paying rent or shall otherwise receive evidence
satisfactory to Tenant of the right of the person making the demand. The
withholding of rent, or any other amount payable by Tenant under this Lease,
by Tenant pending the determination of the right of the party making the
demand shall not be deemed to be a default on the part of Tenant.
ARTICLE XIII
SELF-HELP
13.1 Upon the failure by Tenant to observe or perform any of the
covenants or provisions of this lease to be observed or performed by Tenant,
where such failure shall continue for a period of thirty (30) days after
written notice from Landlord to Tenant of such failure (except if the nature
of Tenant's default is such that more than thirty (30) days are reasonably
required for its cure and Tenant commences such cure within said thirty (30)
day period and thereafter diligently prosecutes such cure to completion),
Landlord may, at its option, without waiving any claim for damages for breach
of agreement, at any time thereafter cure such default for the account of
Tenant, and any amount paid or any contractual liability incurred by Landlord
in so doing shall be deemed paid or incurred for the account of Tenant, and
▇▇▇▇▇▇ agrees to reimburse Landlord therefor; provided that Landlord may cure
any such default as aforesaid prior to the expiration of said thirty-day
period but after notice to Tenant, if the curing of such default prior to the
expiration of said thirty-day period is reasonably necessary to protect the
real estate or Landlord's interest therein, or to prevent injury or damage to
persons or property. If Tenant shall fail to reimburse Landlord upon demand
for any amount paid for the account of Tenant hereunder, said amount shall be
added to and become due as part of the next payment of rent due hereunder.
Except as specifically provided in Article XII, Landlord specifically waives
its rights under paragraph 3 of Section 1161 of the California Code of Civil
Procedure. To the extent ▇▇▇▇▇▇'s failure to perform under this lease cannot
reasonably be cured by Landlord as provided in this Section 13.1, Tenant
acknowledges that all legal and equitable remedies shall be available to
Landlord including without limitation
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injunctions and specific performance except as termination rights are limited
as provided in Article XII.
13.2 If Landlord shall default in the performance or observance of any
agreement or condition in this lease, or shall default in the payment of any
tax or other charge which shall be a lien upon the Demised Premises or in the
payment of any installment of principal or interest upon any mortgage which
shall be prior in lien to the lien of this lease, and if Landlord shall not
cure such default within thirty (30) days after notice from Tenant specifying
the default, (or if such default cannot reasonably be cured within such
thirty-day period, then shall not within said thirty-day period commence to
cure such default and thereafter prosecute the curing of such default to
completion with due diligence), Tenant may, at its option, without waiving
any claim for damages for breach of agreement, at any time thereafter cure
such default for the account of Landlord, and any amount paid or any
contractual liability incurred by Tenant in so doing shall be deemed paid or
incurred for the account of Landlord and Landlord agrees to reimburse Tenant
therefore or save Tenant harmless therefrom; provided that Tenant may cure
any such default as aforesaid prior to the expiration of said thirty-day
period, but after said notice to Landlord, if the curing of such default
prior to the expiration of said thirty-day period is reasonably necessary to
protect the Demised Premises or Tenant's interest therein or to prevent
injury or damage to persons or property or to permit Tenant to conduct its
usual business operations in the Demised Premises. If Landlord shall fail to
reimburse Tenant upon demand for any amount paid for the account of Landlord
hereunder, said amount may be deducted by ▇▇▇▇▇▇ from the next or any
succeeding payments of rent due hereunder or any other amounts due from
Tenant to Landlord until ▇▇▇▇▇▇ is thereby reimbursed therefor in full.
ARTICLE XIV
WAIVER OF SUBROGATION
14.1 Each of Landlord and Tenant hereby releases the other to the
extent of its insurance coverage, from any and all liability for any loss or
damage caused by fire or any of the extended coverage casualties or any other
casualty insured against and from any and all liability for any personal
injury or property damage, even if such fire or other casualty, injury or
damage shall be brought about by the fault or negligence of the other party,
or any persons claiming under such other party, provided, however, this
release shall be in force and effect only with respect to loss or damage
occurring during such time as the releasor's policies of fire and extended
coverage insurance and liability insurance shall contain a clause to the
effect that this release shall not affect such policies or the right of the
releasor to recover thereunder. Each of Landlord and ▇▇▇▇▇▇ agrees that its
fire and extended coverage insurance policies shall include such a clause to
long as the same is obtainable and is includible without extra cost, or if
such extra cost is chargeable therefor, so long as the other party pays such
extra cost. If extra cost is chargeable therefor, each party will advise the
other thereof and of the amount thereof, and the other
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party, at its election, may pay the same but shall not be obligated to do so.
14.2 Except as provided in Section 14.1, neither Section 19.9 of this
lease nor anything else in this lease contained shall be deemed to release
either party hereto from liability for damages resulting from the fault or
negligence of said party or its agents or employees or from responsibility
for repairs necessitated thereby or by any default thereof hereunder.
ARTICLE XV
MORTGAGE SUBORDINATION
15.1 Tenant shall, upon the request of Landlord, in writing subordinate
this lease and the lien hereof from time to time to the lien of any future
first mortgage to a bank, insurance company or similar financial institution,
irrespective of the time of execution or time of recording of such mortgage
or mortgages, provided the holder of such mortgage shall first enter into an
agreement with ▇▇▇▇▇▇, in recordable form, and substantially in the form of
Schedule D, that in the event of foreclosure or other right asserted under
the mortgage by the holder or any assignee thereof, this lease and the rights
of Tenant hereunder shall continue in full force and effect and shall not be
terminated or disturbed except in accordance with the provisions of this
lease. Tenant shall, if requested by the holder of any such mortgage, be a
party to said agreement, provided such agreement does not alter the terms of
this lease, and shall agree in substance that if the mortgagee or any person
claiming under such mortgagee shall succeed to the interest of Landlord in
this lease, Tenant shall recognize such mortgagee or person as its Landlord
under the terms of this lease. ▇▇▇▇▇▇ agrees that Tenant shall, upon the
request of Landlord, execute, acknowledge and deliver any and all instruments
necessary to effectuate, or to give notice of, such subordination, provided
such instruments do not alter the terms of this lease and provided Landlord
shall reimburse Tenant for any costs (including attorneys' fees) incurred by
Tenant in connection with its review and or execution of any such
instruments. The word "mortgage" as used herein includes mortgages, deeds of
trust and similar instruments and modifications, consolidations, extensions,
renewals, replacements or substitutes thereof.
15.2 Landlord agrees that neither the Shopping Center, nor the
construction thereof, nor any expansion thereof, shall be financed by, or
subject to, any so-called economic development or industrial revenue bonds or
similar debt instruments, or any security interest given in connection
therewith, which shall, pursuant to any governmental laws, ordinance or
regulations require or impose (i) any restriction, condition or limitation
whatsoever upon or with respect to any expenditures which may be made by
Tenant and/or any business organization affiliated with Tenant or (ii) any
obligation to file any reports or returns with respect thereto.
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15.3 Upon thirty (30) days prior written notice from Landlord or
Tenant, the requested party shall from time to time execute and deliver to
the requesting party, or any person designated by the requesting party, a
written estoppel statement certifying that: (i) this Lease represents the
entire agreement between Landlord and Tenant and is unmodified and in full
force and effect (or, if modified, stating the nature of such modification
and certifying that this Lease, as so modified, is in full force and effect);
(ii) the dates to which the rental and/or other charges are paid in advance,
if any; (iii) the commencement and termination dates of the lease term;
(iv) there has been no assignment or other transfer of this Lease or any
interest herein by Tenant or Landlord; (v) to the best of the requested party's
knowledge, there are no uncured defaults on the part of the requesting party
under this Lease and the requested party has no right of rent abatement or
damages based thereon (or if a default exists, the nature and amount
thereof); and (vi) such other facts as reasonably may be requested with
respect to the material provisions of this Lease by the requesting party or
any present or prospective purchaser, lender or assignee of this Lease. Any
such certificate may be relied upon by any such party in their transactions
with Landlord or Tenant.
15.4 Upon the occurrence of any default by Landlord hereunder, written
notice to that effect shall be sent by Tenant to each lender of Landlord with
a lien against the property including the Demised Premises provided ▇▇▇▇▇▇▇▇
has sent Tenant written notice advising of the existence of such ▇▇▇▇▇▇ and
the address to be used for its notice ("Landlord Lender"). Tenant shall make
such notice(s) to Landlord Lender(s) at the same time notice of such notice
of default is sent to Landlord, and each Landlord Lender shall have the same
opportunity to cure the default as Landlord has.
15.5 No Landlord Lender shall become personally liable for the
performance or observance of any covenants or conditions to be performed or
observed by Landlord unless and until such Landlord ▇▇▇▇▇▇ becomes the owner
of Landlord's interest hereunder. Thereafter such Landlord Lender shall be
liable for the performance and observance of such covenants and conditions as
a "Landlord" as provided in Section 19.19 hereof, and subject to the
limitations provided therein.
ARTICLE XVI
ASSIGNMENT
Tenant shall have the right at any time and from time to time to sublet
all or any part of the Demised Premises or assign this lease; provided,
however, that notwithstanding any assignment of Tenant's interest in this
lease or any subletting of the whole or any part of the Demised Premises,
Tenant and Guarantor shall remain primarily liable for the performance of all
agreements of Tenant hereunder, except as expressly otherwise provided in
Section 12.5.
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ARTICLE XVII
(Intentionally omitted]
ARTICLE XVIII
LEASEHOLD MORTGAGES
18.1 Tenant may execute and deliver one or more mortgages, deeds of trust
or other leasehold security agreements ("Leasehold Indentures") without the
consent of Landlord. If either Tenant or the mortgagee, grantee or corporate
trustee under any such Leasehold Indenture sends Landlord a notice advising
of the existence of such Leasehold Indenture and the address of the
mortgagee, grantee or corporate trustee thereunder for the service of
notices, such mortgagee, grantee or corporate trustee shall be deemed to be
a "Leasehold Lender." Landlord shall be under no obligation under this
Article XVIII to any mortgagee, grantee or corporate trustee under a
Leasehold Indenture who is not a Leasehold Lender.
18.2 Upon the occurrence of any Event of Default hereunder by ▇▇▇▇▇▇,
written notice to that effect shall be sent by Landlord to each Leasehold
Lender at the same time notice of such Event of Default is sent to Tenant,
and each Leasehold Lender shall have the same opportunity to cure the
default as Tenant has as provided in Section 12.1 herein.
18.3 If any Leasehold Lender or a person designated by a Leasehold
Lender shall either become the owner of the interest of Tenant hereunder upon
the exercise of any remedy provided for in the Leasehold Indenture or shall
enter into a new lease with Landlord as provided in Section 18.4, such
Leasehold Lender or such person shall have the right to assign to any person
such interest or such new lease upon notice to Landlord without obtaining the
consent or approval of Landlord, except that, if neither Tenant nor Guarantor
has a net worth of Seventy-Five Million Dollars ($75,000,000) or more, then
Landlord's reasonable consent to such assignment is required.
18.4 If this lease is terminated for any reason or is rejected or
disaffirmed pursuant to bankruptcy law or other law affecting creditors'
rights, any Leasehoid Lender, or a person designated by any Leasehold Lender,
shall have the right, exercisable by notice to Landlord within ten (10) days
after the effective date of termination, rejection or disaffirmance to enter
into a new lease of the Demised Premises with Landlord. The term of the new
lease shall begin on the date of the termination of this lease and shall
continue for the remainder of the Lease Term. Such new lease shall
otherwise contain the same terms and conditions as those set forth herein,
except for requirements which are no longer applicable or have already been
performed, provided that all defaults which are susceptible of being
remedied by the payment of money shall have been cured, and provided further
that such new lease shall require the tenant thereunder promptly to commence
and expeditiously continue to remedy all other
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defaults on the part of Tenant hereunder to the extent reasonably possible.
It is the intention of the parties hereto that such new lease shall
have the same priority relative to other rights or interests to or in the
fee estate in the land covered by this lease and Landlord covenants to use
commercially reasonable efforts to cause to be subordinated to such new lease
any lien or encumbrance which is subject to this lease. The provisions of
this Article XVIII shall survive the termination of this lease and shall
continue in full force and effect thereafter to the same extent as if this
Section 18.4 were a separate and independent contract by and among Landlord,
Tenant and each Leasehold Lender. From the date on which any Leasehold
Lender shall serve upon Landlord the aforesaid notice of the exercise of its
rights to enter into a new lease, such Leasehold Lender may use and enjoy the
Demised Premises without hindrance or interference by Landlord.
18.5 No Leasehold Lender shall become personally liable for the
performance or observance of any covenants or conditions to be performed or
observed by ▇▇▇▇▇▇ unless and until such Leasehold Lender becomes the owner
of Tenant's interest hereunder upon the exercise of any remedy provided for
in any Leasehold Indenture or enters into a new lease with Landlord as herein
provided. Thereafter such Leasehold Lender shall be liable for the
performance and observance of such covenants and conditions only so long as
such Leasehold Lender owns such interest or is tenant under such new lease.
18.6 Landlord agrees that the exercise of its rights under this lease in
case of an Event of Default shall not, if the Leasehold Lender accepts a new
lease pursuant to this Article XVIII, result in the merger of the estate of
the sublandlord under any sublease with the estate of the subtenant
thereunder. The exercise of any rights of a Leasehold Lender under this
Article XVIII shall not relieve Zayre Corp. of its obligations under the
lease guarantee and Landlord's obligations hereunder shall be conditioned
upon receipt of a written approval or consent by Zayre Corp., within 21 days
after the Leasehold Lender provides a notice of its election, acknowledging
that the performance of such obligations shall not relieve Zayre Corp. of its
obligations under the lease guarantee. If Landlord does not receive such
written approval or consent, Landlord may terminate its obligations by
delivering a notice of termination to the Leasehold Lender. Failure by ▇▇▇▇▇
to deliver such approval or consent shall not relieve it of any prior
liability under its guarantee or of any subsequent liability if Landlord does
not terminate Leasehold Lender's new lease.
18.7 Without the prior written consent of each Leasehold Lender, Landlord
will not accept a voluntary surrender of this lease or the estate created
hereby and will not consent to any amendment of this lease.
-32-
ARTICLE XIX
GENERAL
19.1 INTERPRETATION. It is the intention of the parties hereto that if
any provision of this lease is capable of two constructions, one of which
would render the provision void and the other of which would render the
provision valid, the provision shall have the meaning which renders it valid.
19.2 SUCCESSORS AND ASSIGNS. The words "Landlord" and "Tenant" and the
pronouns referring thereto, as used in this lease, shall mean, where the
context requires or admits, the persons named herein as Landlord and as
Tenant, respectively, and their respective heirs, legal representatives,
successors and assigns, irrespective of whether singular or plural,
masculine, feminine or neuter. The agreements and conditions in this lease
contained on the part of Landlord to be performed and observe shall be
binding upon Landlord and its heirs, legal representatives, successors and
assigns and shall inure to the benefit of Tenant and its successors and
assigns, and the agreements and conditions on the part of Tenant to be
performed and observed shall be binding upon Tenant and its successors and
assigns and shall inure to the benefit of Landlord and its heirs, legal
representatives, successors and assigns. If Landlord shall be more than one
person, the obligations of Landlord hereunder shall be joint and several.
19.3 DELAYS. In any case where either party hereto is required to do any
act (other than make a payment of money) delays caused by or resulting from
Act of God, war, civil commotion, fire or other casualty, labor difficulties,
general shortages of labor, materials or equipment, government regulations or
other causes beyond such party's reasonable control shall not be counted in
determining the time when the performance of such act must be completed,
whether such time be designated by a fixed time, a fixed period of time or "a
reasonable time". In any case where work is to be paid for out of
insurance proceeds or condemnation awards, due allowance shall be made, both
to the party required to perform such work and to the party required to make
such payment, for delays in the collection of such proceeds and awards. The
provisions of this Section shall not apply to the dates set forth in Articles
IV and V.
19.4 HOLDING OVER. If Tenant or any person claiming under Tenant shall
remain in possession of the Demised Premises or any part thereof after the
expiration of the Lease Term without any agreement in writing between
Landlord and Tenant with respect thereto, prior to acceptance of rent by
Landlord the person remaining in possession shall be deemed a tenant at
sufferance and after acceptance of rent by Landlord the person remaining in
possession shall be deemed a tenant from month to month, subject to the
provisions of this lease insofar as the same may be made applicable to a
tenancy from month to month. The monthly rent for such person shall be equal
to 125% of the rent for the immediately preceding one month period.
-33-
19.5 WAIVERS. Failure of either party to complain of any act or omission
on the part of the other party, no matter how long the same may continue,
shall not be deemed to be a waiver by said party of any of its rights
hereunder. No waiver by either party at any time, express or implied, or any
breach of any provision of this lease shall be deemed a waiver of a breach of
any other provision of this lease or a consent to any subsequent breach of
the same or any other provision. If any action by either party shall
require the consent or approval of the other party, the other party's consent
to or approval of such action on any one occasion shall not be deemed a
consent to or approval of said action on any subsequent occasion or a consent
to or approval of any other action on the same or any subsequent occasion.
Any and all rights and remedies which either party may have under this lease
or by operation of law, either at law or in equity, upon any breach, shall be
distinct, separate and cumulative and shall not be deemed inconsistent with
each other; and no one of them, whether exercised by said party or not, shall
be deemed to be in exclusion of any other; and any two or more or all of such
rights and remedies may be exercised at the same time. Without limiting the
generality of the foregoing, if any restriction contained in this lease for
the benefit of either party shall be violated, such party, without waiving
any claim for breach of agreement against the other party, may bring such
proceedings as it may deem necessary, either at law or in equity, in its own
name or in the name of the other party, against the person violating said
restriction.
19.6 DISPUTES. It is agreed that if at any time a dispute shall arise as
to any amount or sum of money to be paid by one party to the other party
under the provisions hereof, the party against whom the obligation to pay the
money is asserted shall have the right to make payment "under protest", such
payment not being regarded as a voluntary payment and there shall survive the
right on the part of said party to institute suit for recovery of such sum
and if it shall be adjudged that there was no legal obligation on the part of
said party to pay such sum or any part thereof, said party shall be entitled
to recover such sum or so much thereof as it was not legally required to pay
under the provisions of this lease; and if any time a dispute shall arise
between the parties hereto as to any work to be performed by either of them
under the provisions hereof, the party against whom the obligation to perform
the work is asserted may perform such work and pay the cost thereof "under
protest" and the performance of such work shall in no event be regarded as a
voluntary performance, and there shall survive the right on the part of said
party to institute suit for the recovery of the cost of such work, and if it
shall be adjudged that there was no legal obligation on the part of said
party to perform the same or any part thereof, said party shall be entitled
to recover the cost of such work or the cost of so much thereof as said party
was not legally required to perform under the provisions of this lease.
19.7 QUIET ENJOYMENT. ▇▇▇▇▇▇▇▇ agrees that upon ▇▇▇▇▇▇'s paying the rent
and performing and observing the agreements and conditions on its part to be
performed and observed, Tenant shall and may peaceably and quietly have, hold
and enjoy the Demised Premises
-34-
and all rights of Tenant hereunder during the Lease Term without any manner
of hindrance or molestation.
19.8 NOTICES. Any and all notices, demands or other communications
required or desired to be given hereunder by any party shall be in writing
and shall be validly given or made to another party by either serving
personally or by mailing in the United States mail, certified or registered,
postage prepaid, return receipt requested, or by Federal Express, Purolator
Courier, ▇▇▇▇▇ Air Freight, U.S. Post Office Express Mail, or similar
overnight courier which delivers only upon signed receipt of addressee. If
such notice, demand or other communication be served personally, service
shall be conclusively deemed made at the time of such personal service. If
such notice, demand or other communication be given by mail, such shall be
conclusively deemed given forty-eight (48) hours after deposit thereof in
the United States mail or twenty-four (24) hours after deposit thereof with
such overnight courier, provided the same is addressed to the party to whom
such notice, demand or other communication is to be given as hereinafter set
forth:
To Landlord: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a Copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
c/o ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Landlord Lender,
if any, if notice
is required under
Section 15.4: (address to be supplied in
writing by Landlord to Tenant)
To Tenant: HomeClub, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: V.P. Real Estate
With a copy to: Zayre Corp.
Framingham, Mass. 01701
Attention: Corporate Counsel
To Leasehold
Lender, if any,
if notice is
required under
Section 18.2: (address to be supplied in
writing by Tenant to Landlord)
-35-
19.9 COSTS. Wherever in this lease provision is made for the
doing of any act by any person it is understood and agreed that such
act shall be done by such person at its own cost and expense unless a
contrary intent is expressed.
19.10 THIS INSTRUMENT. This lease is transmitted for examination
only and does not constitute an offer to lease, and this lease shall
become effective only upon execution thereof by the parties thereto.
This instrument contains the entire and only agreement between the
parties, and no oral statements, representations matter not contained in
this instrument shall have any force or effect. This lease shall not be
modified in any way except by a writing subscribed by both parties.
19.11 HEADINGS. The headings for the various provisions of this
lease are used only as a matter of convenience for reference, and are
not to be considered a part of this lease or used in determining the
intent of the parties to this lease.
19.12 BROKERS. Each of Landlord and Tenant warrants and
represents to the other that it has dealt with no broker in connection
with this lease. Each party shall defend, indemnify and hold harmless
the other party from and against all commissions, fees and expenses,
and all claims therefor, in connection with this lease of, or by, any
broker alleging he, she or it has dealt with the indemnitor party,
including without limitation, reasonable attorneys' fees.
19.13 CHOICE OF LAW. This lease shall be governed by and
construed pursuant to the laws of the State of California.
19.14 SEVERABILITY. Should any provision of this lease be or
become invalid, void, illegal or unenforceable, it shall be considered
separate and severable from this lease and the remaining provisions
shall remain in force and be binding upon the parties hereto as though
such provision had not been included.
19.15 INTEREST ON RENT. If Tenant tenders rent payments after
their due dates three or more times in any given twelve month period,
and if Landlord gave Tenant notice of such delinquency each time, and
if Tenant also fails to pay the third such payment within fifteen days
of Landlord's notice of such delinquency ("Late Payment ") then such
Late Payment and each Late Payment (which Tenant fails to pay within
15 days of Landlord's notice of such delinquency) thereafter in the
same twelve month period, shall bear interest commencing on its due
date, until paid, at the rate of twelve percent per annum, provided
that a payment shall not be deemed a Late Payment unless Landlord
gave Tenant a notice of delinquency and Tenant failed to tender the
rent payment within 15 days after such notice. Said amount shall
become payable as additional rent, and Tenant shall pay Landlord such
amount without notice or demand with the next month's payment of
rent.
19.16 SCHEDULES INCORPORATED. ▇▇▇▇▇▇▇▇▇ A, B, C, D, E and F
-36-
attached hereto are hereby made a part hereof and incorporated herein
to the same extent as if fully set forth herein.
19.17 ATTORNEY FEES. In the event that either Landlord or
Tenant shall institute any action or proceeding against the other
relating to the provisions of this lease, then the unsuccessful party
shall reimburse the prevailing party for all reasonable attorney's fees
and costs incurred in connection therewith, including, without limita-
tion, all such fees or costs incurred on any appeal from such action or
proceeding.
19.18 PURCHASE OF LAND FOR SHOPPING CENTER. HomeClub acknowledges that
Landlord does not own the land for the Shopping Center as of the execution of
this lease. Landlord represents that as of the execution of this lease by
Landlord it is in escrow to purchase the land for the Shopping Center. This
lease is conditioned upon ▇▇▇▇▇▇▇▇'s purchase of said land. If Landlord
breaches its agreement to purchase said land, such breach shall also
constitute a breach of this lease, except that, if Landlord fails to purchase
said land because it failed to satisfy a condition of said purchase agreement
notwithstanding Landlord's best efforts, said failure of the condition shall
not constitute a breach of this Lease. If Landlord fails to purchase said
land for any reason other than its breach, this lease shall become null and
void and neither Landlord nor Tenant shall have any rights or remedies
against the other in connection with this lease.
19.19 The liability of Landlord to Tenant for any default by
Landlord under this Lease shall be limited to the interest of Landlord
in the Demised Premises and Landlord's interest, if any, in the
Shopping Center, and/or the proceeds from any sale or other transfer
of the Demised Premises and/or Landlord's interest, if any, in the
Shopping Center. ▇▇▇▇▇▇ agrees to look solely to such interests
and/or such proceeds for the recovery of any judgment against
Landlord, and Landlord shall not be personally liable for any such
judgment or deficiency after ▇▇▇▇▇▇'s execution upon such interests
and/or such proceeds. The limitation on liability contained in this
Section shall inure to the benefit of ▇▇▇▇▇▇▇▇'s heirs, personal
representatives, successors and assigns and their respective partners,
shareholders, officers, directors, trustees, beneficiaries, agents and
employees. Under no circumstances shall any such person have any
personal liability for the performance of ▇▇▇▇▇▇▇▇'s obligations under
this Lease. The word "Landlord", as used herein, means only the
owner for the time being of Landlord's interest in this lease, that is,
in the event of any transfer of landlord's interest in this lease, the
transferor shall cease to be liable, and shall be released from all
liability for the performance or observance of any agreements or con-
ditions on the part of Landlord to be performed or observed subse-
quent to the time of said transfer, provided that from and after said
transfer the transferee shall have agreed with ▇▇▇▇▇▇, in writing in
recordable form, that such transferee shall have assumed and have
agreed to perform the obligations of Landlord under this lease occur-
ring subsequent to the time of said transfer.
-37-
19.20 Upon reasonable notice to Tenant (but not less than 3
days in advance), and only if Tenant is given an opportunity and
permitted to accompany, Landlord, its agents and employees shall have
the right to enter the Demised Premises at all times during normal
business hours to examine the same, to show them to prospective
purchasers or lenders, to make such repairs as Landlord is obligated
to make pursuant to this Lease, and to exercise such rights of
self-help as Landlord is entitled to exercise pursuant to this Lease.
In addition, during the six month period prior to the expiration of the
Lease term or any renewal term, unless Tenant has exercised its
option to extend the Lease term, Landlord may exhibit the Demised
Premises to prospective Tenants, upon reasonable notice to Tenant
(but not less than 3 days in advance), and only if Tenant is given an
opportunity and permitted to accompany.
-38-
ARTICLE XX
SALE OF DEMISED PREMISES BY LANDLORD
20.1 In the event of any sale, exchange or other transfer of the
Demised Premises by Landlord and an assignment by Landlord of this
Lease, Landlord shall be entirely relieved of all liability under the
terms, covenants and conditions set forth in this Lease arising out of
any act or omission occurring after the assignment of this Lease,
provided that the assignee assumes Landlord's covenants and obliga-
tions arising after the date of such assignment. Tenant shall attorn to
such new Landlord as of the date of the assignment. Upon ten (10)
days prior written notice from Landlord, Tenant shall from time to time
execute and deliver to Landlord or any person designated by Landlord
an estoppel certificate stating the current status of the material provi-
sions of this Lease, as specified in Section 15.5 above. Any such
statement may be relied upon by any purchaser or other transferee of
the Demised Premises.
IN WITNESS WHEREOF, the parties hereto have caused this lease
to be executed under seal as of the day and year first above written.
LANDLORD:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an
individual
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
TENANT:
HOMECLUB, INC., a Delaware
corporation
By:
------------------------------------
Its: President
-------------------------------
By:
------------------------------------
Its: Vice President
-------------------------------
-39-
SCHEDULE A
The Demised Premises shall consist of a one-story building (the
"Building"), to be constructed by Landlord as herein provided, con-
taining one hundred three thousand nine hundred and nine (103,909)
square feet of floor area having a depth and width of two hundred
eighty-one point four feet by three hundred sixty-nine point four feet
(281.4 x 369.4) and other dimensions as shown upon the plan attached
hereto ("the Lease Plan"), plus an exterior nursery area containing
nine thousand eight hundred and eighty (9,880) square feet of floor
area, all as shown on the Lease Plan. In addition, Tenant shall have
the exclusive right to use certain service areas adjacent to the De-
mised Premises which contain an exterior loading dock and compactor
pad as shown on the Lease Plan. It is expressly understood and
agreed that said service areas and the exterior nursery area shall not
be included in computing Tenant's Fraction (defined in Section 6.1) for
purposes of Article VI and Paragraph 8 of Schedule B. If after
completion of Landlord's Construction Work the Building shall contain
less than the floor area required above then, in addition to all other
remedies of Tenant, as a result thereof, the Minimum Rent payable by
Tenant pursuant to Section 5.1 shall be reduced proportionately.
▇▇▇▇▇▇▇▇ agrees that the name of the Shopping Center shall not con-
tain the tradename of any business operated in the Shopping Center.
The Demised Premises are situated within the shopping center to
be constructed by Landlord, as herein provided, at the intersection of
▇▇▇▇▇▇▇ Avenue and 20th Street. The "Shopping Center" (as defined
herein) is the land, together with the buildings and other structures
from time to time thereon, shown on the Lease Plan, and is more
particularly described on the legal descriptions attached hereto on
pages A-2 and A-3.
A-1
DESCRIPTION
(1) ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE STATE OF CALIFORNIA,
COUNTY OF BUTTE, CITY OF CHICO, DESCRIBED AS FOLLOWS:
LOT 4, AS SHOWN ON THAT CERTAIN MAP ENTITLED, "CHICO INDUSTRIAL
SUBDIVISION", WHICH MAP WAS RECORDED IN THE OFFICE OF THE RECORDER
OF THE COUNTY OF BUTTE, STATE OF CALIFORNIA, ON JULY 6, 1965, IN
BOOK 34 OF MAPS, AT PAGE(S) 7, 8 AND 9.
EXCEPTING THEREFROM THAT PORTION DEEDED TO THE STATE OF CALIFORNIA,
DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT WHICH IS THE INTERSECTION OF THE EAST LINE OF
LOT 2, AS SHOWN ON SAID MAP, WITH THE WESTERLY LINE OF STATE
HIGHWAY ROUTE 99, SAID POINT BEING DISTANT 90.00 FEET SOUTHWESTERLY
MEASURED AT A RIGHT ANGLE FROM THE BASE LINE AT ENGINEER'S STATION
(C-1) 488+87.54 OF THE DEPARTMENT OF PUBLIC WORKS SURVEY ON ROAD
03-BUT-99 FROM POST MILE 30.0 TO 37.3; THENCE FROM SAID POINT OF
BEGINNING NORTH 32 DEG. 24' 21" WEST, 718.93 FEET; THENCE ALONG A
TANGENT CURVE TO THE LEFT, HAVING A RADIUS OF 2940.00 FEET,
THROUGH AN ANGLE OF 2 DEG. 25' 14", AN ARC DISTANCE OF 124.21 FEET
TO A POINT OF COMPOUND CURVE; THENCE ON A CURVE TO THE LEFT, WITH A
RADIUS OF 815.00 FEET, THROUGH AN ANGLE OF 25 DEG. 39' 46", AN ARC
DISTANCE OF 365.04 FEET; THENCE NORTH 60 DEG. 29' 31" WEST, 603.28
FEET; THENCE NORTH 85 DEG. 37' 47" WEST, 152.81 FEET; THENCE SOUTH
80 DEG. 00' 30" WEST, 188.24 FEET TO A POINT ON THE SOUTH LINE OF
20TH STREET, AS SHOWN ON SAID MAP OF "CHICO INDUSTRIAL PARK";
THENCE ALONG SAID SOUTH LINE OF 20TH STREET ON A CURVE TO THE LEFT,
TANGENT TO A LINE BEARING NORTH 79 DEG. 40' 52" EAST, HAVING A
RADIUS OF 642.00 FEET, THROUGH AN ANGLE OF 15 DEG. 22' 20", AN ARC
DISTANCE OF 172.25 FEET; THENCE CONTINUING ALONG SOUTH LINE OF 20TH
STREET, SOUTH 30 DEG. 29' 31" EAST, 2.33 FEET; THENCE NORTH 68
DEG. 31' 52" EAST, 114.77 FEET; THENCE NORTH 64 DEG. 28' 40" EAST,
461.74 FEET TO THE INTERSECTION OF THE SOUTHERLY LINE OF SAID 20TH
STREET WITH THE WESTERLY LINE OF STATE HIGHWAY ROUTE 99; THENCE
ALONG SAID WESTERLY LINE SOUTH 30 DEG. 29' 31" EAST, 1766.67 FEET
TO THE POINT OF BEGINNING.
ALSO EXCEPTING ALL MINERALS, OIL, GAS AND OTHER HYDROCARBON
SUBSTANCES BELOW A DEPTH OF 500 FEET AND ALL GEOTHERMAL RIGHTS
BELOW A DEPTH OF 250 FEET OF SAID REAL PROPERTY WITHOUT THE RIGHT
OF SURFACE ENTRY.
ALSO EXCEPTING THEREFROM THOSE PORTIONS DEEDED TO THE CITY OF
CHICO, BY DEEDS RECORDED APRIL 28, 1980, IN BOOK 2510, PAGE 195,
OFFICIAL RECORDS, AND RECORDED MAY 15, 1980, IN BOOK 1515, PAGE 276,
OFFICIAL RECORDS.
A-2
DESCRIPTION
and (2) ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE STATE OF CALIFORNIA,
COUNTY OF BUTTE, CITY OF CHICO, DESCRIBED AS FOLLOWS:
LOT 9, AS SHOWN ON THAT CERTAIN MAP ENTITLED, "CHICO INDUSTRIAL
SUBDIVISION", WHICH MAP WAS RECORDED IN THE OFFICE OF THE RECORDER
OF THE COUNTY OF BUTTE, STATE OF CALIFORNIA, ON JULY 6, 1965, IN
BOOK 34 OF MAPS, AT PAGE(S) 7, 8 AND 9.
EXCEPTING THEREFROM THAT PORTION DEEDED TO THE STATE OF CALIFORNIA,
DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT WHICH IS THE INTERSECTION OF THE EAST LINE OF
LOT 2, AS SHOWN ON SAID MAP, WITH THE WESTERLY LINE OF STATE
HIGHWAY ROUTE 99, SAID POINT BEING DISTANT 90.00 FEET SOUTHWESTERLY
MEASURED AT A RIGHT ANGLE FROM THE BASE LINE AT ENGINEER'S STATION
(C-1) 488+87.54 OF THE DEPARTMENT OF PUBLIC WORKS SURVEY ON ROAD
03-BUT-99 FROM POST MILE 30.0 TO 37.3; THENCE FROM SAID POINT OF
BEGINNING NORTH 32 DEG. 24' 21" WEST, 718.93 FEET; THENCE ALONG A
TANGENT CURVE TO THE LEFT, HAVING A RADIUS OF 2940.00 FEET, THROUGH
AN ANGLE OF 2 DEG. 25' 14", AN ARC DISTANCE OF 124.21 FEET TO A
POINT OF COMPOUND CURVE; THENCE ON A CURVE TO THE LEFT, WITH A
RADIUS OF 815.00 FEET, THROUGH AN ANGLE OF 25 DEG. 39' 46", AN ARC
DISTANCE OF 365.04 FEET; THENCE NORTH 60 DEG. 29' 31" WEST, 603.28
FEET; THENCE NORTH 85 DEG. 37' 47" WEST, 152.81 FEET; THENCE SOUTH
80 DEG. 00' 30" WEST, 188.24 FEET TO A POINT ON THE SOUTH LINE OF
20TH STREET, AS SHOWN ON SAID MAP OF "CHICO INDUSTRIAL PARK";
THENCE ALONG SAID SOUTH LINE OF 20TH STREET ON A CURVE TO THE LEFT,
TANGENT TO A LINE BEARING NORTH 79 DEG. 40' 52" EAST, HAVING A
RADIUS OF 642.00 FEET, THROUGH AN ANGLE OF 15 DEG. 22' 20" , AN ARC
DISTANCE OF 172.25 FEET; THENCE CONTINUING ALONG SOUTH LINE OF 20TH
STREET, SOUTH 30 DEG. 29' 31" EAST, 2.33 FEET; THENCE NORTH 68 DEG.
31' 52" EAST, 114.77 FEET; THENCE NORTH 64 DEG. 28' 40" EAST,
461.74 FEET TO THE INTERSECTION OF THE SOUTHERLY LINE OF SAID 20TH
STREET WITH THE WESTERLY LINE OF STATE HIGHWAY ROUTE 99; THENCE
ALONG SAID WESTERLY LINE SOUTH 30 DEG. 29' 31" EAST, 1766.67 FEET
TO THE POINT OF BEGINNING.
ALSO EXCEPTING ALL MINERALS, OIL, GAS AND OTHER HYDROCARBON
SUBSTANCES BELOW A DEPTH OF 500 FEET AND ALL GEOTHERMAL RIGHTS BELOW
A DEPTH OF 250 FEET OF SAID REAL PROPERTY WITHOUT THE RIGHT OF
SURFACE ENTRY.
ALSO EXCEPTING THEREFROM THOSE PORTIONS DEEDED TO THE CITY OF
CHICO, BE DEEDS RECORDED APRIL 28, 1980, IN BOOK 2510, PAGE 195,
OFFICIAL RECORDS, AND RECORDED MAY 15, 1980, IN BOOK 1515, PAGE
276, OFFICIAL RECORDS.
A-3
least ten (10) stores under the same trade name in three or more states.
10. Landlord shall maintain with respect to the Common Facilities
throughout the Lease Term a policy or policies of public liability insurance
in amounts of not less than One Million Dollars ($1,000,000.00) with respect
to injuries to any one person and not less than Two Million Dollars
($2,000,000.00) with respect to injuries suffered in any one accident and not
less than One Hundred Thousand Dollars ($100,000.00) with respect to damage
to property, such policies of insurance to name Tenant as an additional
insured thereunder and be issued for periods of not less than one (1) year by
responsible insurance companies well rated by national rating organizations
and authorized to do business in the state in which the Shopping Center is
located. Provided however, not more than once every five years Tenant may
require that the amount of coverage be increased on the ground that such
coverage is inadequate to properly protect the parties in accordance with
generally accepted insurance standards for Shopping Centers of this kind and
size. Landlord shall deliver such policies to Tenant at least fifteen (15)
days prior to the Commencement Date, and each renewal policy at least ten
(10) days prior to the expiration of the policy it renews. In lieu of
delivering any policy of insurance to Tenant, Landlord may deliver to Tenant
a Certificate of the company issuing such policy. All such insurance policies
shall provide that such policies shall not be cancelled without at least ten
(10) days prior written notice to Tenant.
11. Landlord shall, within five days after the close of escrow for
landlord's acquisition of the land for the Shopping Center, deliver to Tenant
a recognition agreement from any mortgagee whose mortgage shall be prior in
lien to the lien of this lease and, if Landlord shall hold a leasehold estate
in all or part of the Shopping Center rather than a fee interest, a
recognition agreement from the fee owner. Each such recognition agreement
shall be in recordable form and shall provide that this lease and all rights
of Tenant hereunder shall not be disturbed except for a cause which would
permit Landlord to disturb the same hereunder. Each such recognition
agreement from a mortgagee or fee owner, as the case may be, shall also be
substantially in the form of Schedule D. Tenant shall have the right to
terminate this lease at any time within 120 days after ▇▇▇▇▇▇ learns that
Landlord is not in compliance with the preceding provisions of this Paragraph
11, provided that Tenant must give Landlord 30 days advance notice of such
intent to terminate and Landlord may cure such non-compliance and negate said
termination at any time during said 30 day period.
12. The Demised Premises are demised to Tenant with the benefit of all
of the rights contained in this lease and all of the rights appurtenant to
this lease and to the Demised Premises by operation of law, and are demised
subject to, and with the benefit of, the following:
(A) General real estate taxes not yet due and payable.
(B) The Mortgage, if any, referred to in Schedule D.
B-7
(C) The Permitted Exceptions as defined in Section 2.1 above.
(D) The REA referred to in Paragraph 13 below.
(E) Easements for utilities serving the Shopping Center.
13. Landlord shall enter into a Reciprocal Easement Agreement ("REA")
acceptable to HomeClub, with respect to the balance of the Shopping Center
(herein referred to as "Phase 11"). HomeClub shall not unreasonably
withhold or delay its approval of the REA, provided it shall be reasonable to
withhold its consent unless the REA shall protect fully Tenant's rights under
this lease, shall give Tenant the right to enforce the provisions of the REA
in the event Landlord fails to do so diligently, and shall not impose any
additional obligations or costs on Tenant. Landlord upon entering into the
REA will grant and demise to Tenant the benefit of all easements, licenses,
rights-of-way, and privileges which the parties therein referred to did
thereby give and grant one to the other and to all persons claiming
thereunder. Landlord shall not, without the prior consent of Tenant, execute,
or otherwise agree to, any modification of the REA, nor waive any of its
rights, nor exercise any right, nor give any consent or approval, nor grant
or permit any indulgences by act or omission, nor give any consent,
thereunder. Landlord shall enforce all provisions of the REA.
14. Tenant may at any time give notice to Landlord that Tenant elects
to perform the obligations of Landlord under Paragraphs 7 and 10 and, upon
the thirtieth (30th) day after such notice, Tenant shall commence to, and
thereafter shall, perform such obligations, and no further obligations shall
thereafter accrue under Paragraphs 8 and 10 hereof except as otherwise
determined pursuant to the penultimate sentence of this Paragraph 14. In such
event, Landlord shall pay to Tenant, for each year or portion thereof
thereafter included within the Lease Term, as partial reimbursement to Tenant
of the cost to Tenant of performing such obligations, an amount equal to the
product of "Landlord's Fraction" (hereinafter defined) and the cost of
performing such obligations during said year. Said amount shall be payable
periodically, but not more frequently than monthly, upon ▇▇▇▇▇▇▇▇'s receipt
of bills from Tenant. Tenant shall submit to Landlord evidence of such cost
to Tenant in such detail as Landlord may reasonably require. Landlord's
Fraction is that fraction the numerator of which shall be the number of
square feet of floor area in all the buildings in the Shopping Center except
the Demised Premises and the denominator of which shall be the denominator of
Tenant's Fraction (defined in Section 6.1), but in no event shall Landlord's
Fraction be less than 53%, except if the size of the Demised Premises is
increased, in which case Landlord's Fraction shall be adjusted accordingly.
Subject to the prior sentence, as the number of square feet of floor area may
change during any year, ▇▇▇▇▇▇▇▇'s Fraction may change during said year and
the amount payable by Landlord for said year pursuant to the provisions of
this Paragraph 14 shall reflect such changes in floor area. At any time after
the giving of notice by ▇▇▇▇▇▇ pursuant to the first sentence of this
Paragraph 14, Tenant may give notice to Landlord
B-8
that Tenant elects to have Landlord again perform such obligations of
Landlord under said Paragraphs 7 and 10 and upon the thirtieth (30th) day
after such notice from Tenant Landlord shall commence to, and thereafter
shall, perform such obligations and the provisions of Paragraphs 7 and 10
shall again be operative and the provisions of this Paragraph 14 shall be
subject to the provisions of Section 8.3 and nothing in this Paragraph 14
shall obligate Tenant to make any alterations, repairs or replacements to the
common areas that are required during the first twenty-four (24) months of
the Lease Term.
15. Landlord and Tenant will maintain the Shopping Center and conduct
their business thereon in compliance with all federal, state or local laws
and regulations relating to pollution control, hazardous or toxic wastes,
substances and constituents, including hydrocarbonic substances, and other
environmental and ecological matters, including but not limited to the
Federal Water Pollution Control Act (33 U.S.C. Sect. 1251 et seq.), Resource
Conservation & Recovery Act (42 U.S.C. Sect. 6901 et seq.), Safe Drinking
Water Act (42 U.S.C. Sect. 3000f et seq.), Toxic Substances Control Act (15
U.S.C. Sect. 2601 et seq.), the Clean Air Act (42 U.S.C. Sect. 7401 et seq.),
Comprehensive Environmental Response of Compensation and Liability Act (42
U.S.C. Sect. 9601, et seq.), California Health & Safety Code (25100 et seq.,
39000 et seq.), California Water Code (13000 et seq.), and other comparable
state laws. If Landlord or Tenant shall receive: (a) any notice of any
violation or administrative or judicial complaint or order having been filed
or about to be filed against Landlord, Tenant, the Shopping Center or the
Demised Premises alleging violations of any federal, state or local
environmental law or regulation or requiring Landlord or Tenant to take any
action in connection with the release of any toxic or hazardous substance,
waste or constituent, including any hydrocarbonic substance, into the
environment, or (b) any notice from a federal, state or local governmental
agency or private party alleging that Landlord or Tenant may be liable or
responsible for costs associated with a response or cleanup of a release of a
toxic or hazardous substance, waste or constituent, including any
hydrocarbonic substance, into the environment or any damages caused by that
release, Landlord or Tenant shall, within fifteen (15) days of receipt
thereof, provide the other party with a copy of such notice and thereafter
shall diligently proceed to take all actions necessary to correct such
violation. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ agree to indemnify and hold each other
harmless from and against all causes, claims, demands, losses, damages,
liens, liabilities, lawsuits and other proceedings, costs and expenses
(including without limitation attorneys' fees) incurred, directly or
indirectly, by the indemnitee as a result of or in connection with
indemnitor's failure to comply with any of the provisions of this
Paragraph 15.
B-9
SCHEDULE C
LANDLORD'S CONSTRUCTION WORK
Below are Tenant's Requirements. Landlord agrees that within thirty (30)
days after the date of this lease Landlord shall submit to Tenant, for
Tenant's approval, detailed plans and detailed specifications ("the
Details"), which shall be in conformity with Tenant's Requirements. The
Details shall be submitted in duplicate, including working drawings and
design analysis. If, within fifteen (15) days after Tenant shall have
received a complete set of the Details, Tenant shall not give notice of any
comments thereon, then such complete set of the Details shall be deemed
approved by Tenant. If, within fifteen (15) days after Tenant shall have
received such complete set of Details, Tenant shall give Landlord notice of
comments thereon, Landlord shall forthwith revise the Details in accordance
with said comments to the extent that said comments shall be in conformity
with Tenant's requirements and resubmit the Details, as so revised, to Tenant
for approval within fifteen (15) days after receipt of Tenant's notice of
comments, and the procedure for approval and/or comments by Tenant above set
forth shall be repeated until the Details shall be finally approved except
that the time limit for approval and revision shall be fifteen (15) days.
Provided, however, if ▇▇▇▇▇▇ fails to give Landlord any of the above-
mentioned notices within five (5) days from receipt of each set of Details,
then the dates referred to in Section 4.6, 4.7, and 5.1(D) shall be extended
on a day for day basis for each additional day Tenant fails to respond up to
a total of ten days for each approval period.
At any time after the Details, as the same may be revised as aforesaid,
shall be approved by Tenant, as aforesaid, and prior to completion of
construction thereunder, Tenant may give notice to Landlord of changes it
desires in the Details as the same may have been revised, as aforesaid.
Changes which do not affect the structure and do not delay the completion of
construction work shall not require the approval of Landlord; changes which
do affect the structure or which do delay the completion of construction work
shall require the approval of Landlord, which approval Landlord agrees it
will not unreasonably delay or withhold, and the dates referred to in
Sections 4.6, 4.7, and 5.1(D) shall be extended on a day for day basis for
each day construction is delayed. The Details, as the same may be revised and
changed as aforesaid, shall be known as "Landlord's Construction Work".
If Tenant shall give notice to Landlord that extensive changes have been
involved, Landlord will furnish "as built" drawings. Upon completion of
construction Landlord shall furnish photographs and operating instructions as
provided in said document entitled Outline Specifications for a HomeClub
Store (hereinafter referred to).
Prior to the commencement of Landlord's Construction Work, Landlord
shall submit to Tenant for its approval a critical path construction
schedule, and about the first day of each month during
C-1
Landlord's Construction Work Landlord shall submit to Tenant for its approval
a revised critical path construction schedule.
Notwithstanding anything contained in Section 3.1 of this lease, any net
increase in the cost of Landlord's Construction Work, including, without
limitation, the cost to Landlord of its interest payment on the construction
loan for the Demised Premises, caused by changes made by Tenant, as
aforesaid, after the Details have been approved by Tenant shall be paid by
Tenant to Landlord upon demand, at the time when Landlord shall be required
to pay the same to Landlord's contractors or other parties, provided that
Landlord shall, prior to the commencement of construction of such changes,
have notified Tenant of such increase and Tenant shall have approved of the
cost of such increase.
No agent or employee of Tenant other than an officer of Tenant or an
agent or employee of Tenant designated in writing for the purpose by an
officer of Tenant has any authority to approve any plans or specifications or
approve any changes in plans or specifications, and any approval by an officer
or such agent or employee shall not be binding upon Tenant unless such
approval shall be in writing.
Unless Tenant shall expressly agree in writing that any requirement of
Tenant's Requirements shall be waived or altered, every requirement of
Tenant's Requirements shall be complied with by Landlord, except to the
extent Tenant's Requirements shall have been waived or altered by ▇▇▇▇▇▇'s
approval of the Details or change orders, as provided above. Such waiver or
alteration can be accomplished only by a writing signed by an officer of
Tenant or an agent or employee of Tenant, which writing sufficiently
identifies said requirement and states that the same is waived or altered.
Notwithstanding any approval hereunder by ▇▇▇▇▇▇, Landlord shall be solely
responsible in all cases for proper design and coordination of architectural,
structural, plumbing, electrical, heating, ventilating, air conditioning and
site elements of the Demised Premises.
Tenant's Requirements are such work (labor, materials and equipment) as
shall be required to construct a HomeClub store building and Common
Facilities which when completed will be equal in all detail to the HomeClub
store building and Common Facilities provided for in (a) the Store Plans
(hereinafter referred to), and (b) Prototype Specifications for a HomeClub
Store. Also, if site conditions, local codes or other requirements of local
authorities require differences in construction, Store Plans and Prototype
Specifications shall be further modified and supplemented to reflect such
differences but no modifications thereof prepared in accordance with the
provisions of this sentence or the sentence immediately preceding shall be
permitted because of local codes or other requirements of local authorities,
unless without such modifications said Store Plans and Prototype
Specifications would violate local codes or other requirements of local
authorities. The Store Plans consist of the following drawings prepared by
▇▇▇▇▇▇▇ & Banks Architects, Inc. as job number 86-29:
C-2
Sheet Most Recently
Number Title Revised Date
Title Sheet 10/12/87
A1.1 Site Plan 03/19/87
A2.1 Floor Plan 10/12/87
A3.1 Exterior Elevations 10/12/87
A4.1 Reflected Ceiling Plan 10/12/87
A5.1 Racking Floor Plan 10/12/87
A6.1 Communications Floor Plan 10/12/87
A7.1 Computer Floor Plan 10/12/87
A8.1 Interior Electrical 08/04/87
A9.1 Count, Vault & Training 08/04/87
A10.1 PBX, Computer & Receiving 07/30/87
A11.1 Cust. Service & Cash Registers 10/19/87
A12.1 Mgr. Offices & Lounge 08/05/87
A13.1 Special Order Table 08/06/87
A14.1 Receiving Docks 08/11/87
A15.1 Electrical Signing 08/25/87
A16.1 Plumbing 10/28/87
C-3
SCHEDULE D
SUBORDINATION, RECOGNITION AND ATTORNMENT AGREEMENT
1. Reference is made to Mortgage from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("Landlord")
to ___________________ ("Mortgagee") dated _________________ and recorded in
Volume _______________ at Page ________ of the ____________________________.
2. Reference is made to Lease dated ________________, 198_, between
Landlord, and HomeClub, Inc. a Delaware corporation, ("Tenant"), as Tenant,
of certain premises situated within the premises covered by said Mortgage.
3. Notwithstanding anything to the contrary set forth in the Lease, the
Lease and the leasehold estate created thereby shall be and shall at all times
remain subject, subordinate and inferior to the Mortgage and the lien
thereof, and to any and all renewals, modifications, consolidations,
replacements, and extensions thereof.
4. In consideration of the agreements of Mortgagee contained herein,
▇▇▇▇▇▇ agrees that if the holder of said Mortgage, or any person claiming
under said holder, shall succeed to the interest of Landlord in said Lease,
Tenant will recognize, and attorn to, said holder, or such other person
claiming under said holder, as its landlord under the terms of said ▇▇▇▇▇.
5. In consideration of the agreements of Tenant contained herein,
Mortgagee consents to said ▇▇▇▇▇ and agrees that, in the event of foreclosure
or other right asserted under said Mortgage by the holder thereof, said Lease
and the rights of Tenant thereunder shall continue in full force and effect
and shall not be terminated or disturbed, except in accordance with the
provisions of said Lease.
6. The benefits and burdens of this agreement shall enure to and bind
the successors and assigns of the respective parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed, both as of ________________, 198_.
HOMECLUB, INC.
By:
-----------------------------
---------------------------------
By:
-----------------------------
D-1
SCHEDULE E
GUARANTEE
Reference is made to a Shopping Center Lease (the "Lease") dated June 6,
1988, between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (hereinafter referred to as "Landlord"),
and HOMECLUB, INC., a Delaware corporation (hereinafter referred to as
"Tenant"), of certain premises within the shopping center in Chico,
California, located at the intersection of ▇▇▇▇▇▇▇ Avenue and 20th Street.
In consideration of Landlord's having executed said ▇▇▇▇▇ at the request
of Zayre Corp., a Delaware corporation ("Zayre" or "Guarantor"), and in
further consideration of One Dollar and other valuable consideration paid,
the receipt of which is hereby acknowledged, ▇▇▇▇▇ hereby unconditionally
guarantees to Landlord and his heirs, personal representatives, successors
and assigns the payment of the rent provided for in said ▇▇▇▇▇ and the
performance and observance of all agreements and conditions contained in said
Lease on the part of Tenant to be performed or observed. At Landlord's
election, ▇▇▇▇▇ may be brought into any action or proceeding commenced by
Landlord against Tenant in connection with and based upon said Lease, or any
provision thereof, prior to obtaining a judgment against Tenant therein.
Notwithstanding anything contained herein to the contrary, ▇▇▇▇▇ shall have
all defenses and rights of Tenant and its successors and assigns (except
their financial disability) with respect to the performance and payments
under the Lease and the obligations of Zayre hereunder shall be measured by
and shall in no event be greater than the obligations of Tenant. Zayre hereby
agrees that it shall in no way be released from its obligations under this
Guarantee by any of the following actions: any assignment of said Lease or
any subletting of the demised premises by ▇▇▇▇▇▇, any Leasehold Lender, or
any subtenant, successor, or assignee of Tenant, any new Lease with Leasehold
Lender or party designated by such Lender as provided in Section 18.6 of the
Lease, any waiver of default or any extension of time or other favor or
indulgence granted by Landlord to Tenant, any failure to receive notice of
any of said actions, the expiration or termination of the Lease (except as
provided below), or any extension of the terms of the Lease in accordance
with the provisions of the Lease. Zayre hereby waives notice of non-payment
of any other default in the performance or observance of any agreement or
condition contained in said Lease on the part of Tenant to be performed or
observed.
Anything to the contrary herein notwithstanding: (A) if said Lease shall
be terminated pursuant to the provisions of Article 12 of said Lease at a
time when the tenant in
possession shall not be Zayre, or a subsidiary of Zayre, then Zayre shall not
be liable for the payment of any rent or for the performance or observance of
any agreements or conditions to be paid, performed or observed which become
due or arise after the date of such termination, unless at the time of such
termination Landlord shall have offered to Zayre in writing a Lease for the
balance of the Lease Term (as defined in the Lease) upon the provisions in
said Lease contained; Zayre shall have a period of sixty (60) days after
receipt of such offer to accept such offer. If ▇▇▇▇▇ accepts ▇▇▇▇▇▇▇▇'s
offer, then such Lease shall be deemed to mitigate Landlord's damages.
(B) If Tenant is adjudicated bankrupt, or if any bankruptcy action
involving Tenant is commenced or filed, or if a petition or reorganization,
arrangement, or similar relief is filed against Tenant, then subject to the
foregoing at such time as the trustee or administrator rejects the Lease,
▇▇▇▇▇ shall pay to Landlord all accrued, unpaid rent upon the condition that
within thirty (30) days following notice to Landlord of such rejection
Landlord shall have offered to Zayre in writing a Lease for the balance of
the Lease Term upon the provisions of the Lease, including payment of the
rental obligations as provided above, which offer must remain open for not
less than sixty (60) days after receipt of such written offer. If ▇▇▇▇▇
accepts ▇▇▇▇▇▇▇▇'s offer, then such Lease shall be deemed to mitigate
Landlord's damages
In the event that any legal action or other proceeding is commenced
with respect to this Guarantee, the unsuccessful party shall reimburse the
prevailing party for all reasonable attorney's fees and costs incurred in
connection therewith, including, without limitation all such fees or costs
incurred on any appeal from such action or proceeding.
This Guarantee shall bind the successors and assigns of Guarantor, and
it shall inure to the benefit of the heirs, personal representations,
successors and assigns of Landlord. Guarantor further agrees that Landlord
may, without approval, assign its rights under this Guarantee, in whole or
in part, to any person or entity obtaining an ownership interest or security
interest of any nature in the Lease, provided that, unless Tenant is a
wholly-owned subsidiary of Guarantor at the time, Landlord shall give notice
of such assignment within thirty (30) days thereof to Guarantor.
This Guarantee shall be governed by, and construed in accordance with,
the laws of the State of California.
No provisions of this Guarantee or right of Landlord hereunder can be
waived in whole or in part, nor can ▇▇▇▇▇ be released from ▇▇▇▇▇'s
obligations hereunder, except either by a) a writing duly executed by
Landlord and an authorized officer of Landlord's lender, if any, holding a
lien upon the Demised Premises as defined in the Lease, b) operation of law,
or c) operation of the Lease.
Zayre represents that HomeClub is a wholly-owned subsidiary of Zayre.
▇▇▇▇▇ has caused this Guarantee to be executed and its corporate seal to
be hereto affixed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, its President, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, its
Vice President hereunto duly authorized all as of the 6th day of June, 1988.
ZAYRE CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice
President
SCHEDULE F
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SHORT FORM OF LEASE
THIS SHORT FORM OF LEASE executed this _____ day of _____________, 198_,
by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (hereinafter referred to as "Landlord"),
whose address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and
HOMECLUB, INC., a Delaware corporation (hereinafter referred to as "Tenant"),
whose address is ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
WITNESSETH:
That for and in consideration of the covenants and agreements contained
in that certain Lease dated _______________, 198_ (the "Lease"), Landlord
does hereby demise and lease unto Tenant, and Tenant does hereby lease from
Landlord that certain real property in the City of Chico, County of Butte,
State of California, within the shopping center (the "Shopping Center")
situated at the intersection of ▇▇▇▇▇▇▇ Avenue and 20th Street, more
particularly described on Exhibit "A" attached hereto and by this reference
incorporated herein (the "Demised Premises").
TO HAVE AND TO HOLD the Demised Premises effective from the Commencement
Date as defined in the Lease for a period of twenty (20) years, and
containing four (4) five (5) year options to renew the Lease, upon the terms
and conditions contained in the Lease.
IT IS UNDERSTOOD AND AGREED that this Short Form of Lease is executed
solely for the purpose of giving notice to the public of the existence of the
Lease against the Demised Premises, the terms and conditions of which are
expressly incorporated herein by reference for all purposes as though fully
set forth herein. Should there be
F-1
any inconsistency between the terms of this instrument and the Lease
incorporated herein, the terms of said incorporated Lease shall prevail.
IN WITNESS WHEREOF, the parties hereto have executed this Short Form of
Lease as of the date and year first above written.
LANDLORD:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
an individual
----------------------------------------
TENANT:
HOMECLUB, INC. a Delaware corporation
By:
------------------------------------
Its:
-------------------------------
By:
------------------------------------
Its:
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F-2