RETAIL LEASE

  (f)       INTENTIONALLY OMITTED

 

  (g)       INTENTIONALLY OMITTED

 

 

 

20.     Tenant shall not obstruct vestibule areas outside of Tenant’s doors, the sidewalks adjacent to the Premises, or any portion of the Common Areas with any item, including without limitation newspaper racks, bicycle stands, vending machines, weighing machines, amusement rides, shopping carts, merchandise of any kind, and/or boxes, trash or other debris. Neither Tenant nor its customers, agents or employees shall utilize any shopping carts in the Common Areas without Landlord’s prior written approval. If Landlord shall grant such approval, Tenant shall cause any shopping carts utilized by its customers, agents or employees and left in the Common Areas to be promptly and regularly collected and returned to the Premises or, at Landlord’s election, to shopping cart holders insta lled by Landlord in the Common Areas. Tenant expressly acknowledges that the storage of any materials or the cleaning of any equipment or any other items is strictly prohibited in the Common Areas.

 

21.     Vehicles of Tenant, its employees and agents, shall not be parked within the Center except in areas designated for employee parking from time to time in writing by Landlord. Tenant will, and will cause any employee to co-operate with any holiday off-site employee parking program instituted by Landlord. Landlord shall have the right to cause to be removed at Tenant’s expense any vehicle of Tenant, its employees or agents, that may be parked in any area other than an employee parking area, or that may be parking in violation of any such holiday parking program, without liability of any kind to Tenant, its agents or employees, and Tenant agrees to save and hold harmless Landlord, its agents and employees from any and all claims, losses, damages and demands asserted or arising in respect to or in connection with the removal of any such automobile. Tenant will from time to time upon request of Landlord supply Landlord with a list of license plate numbers of all vehicles owned or used by it and its employees and agents. If Tenant, its employees and/or agents violate the terms of this paragraph, Landlord may give Tenant written notice of such violation, identifying the vehicle involved, and for each subsequent violation, upon written notice from Landlord to Tenant, Tenant shall, in addition to any towing charges, pay to Landlord upon demand the sum of fifty dollars ($50.00), to cover Landlord’s administrative and supervision costs in connection with such violation. Any trucks utilized by Tenant or its suppliers

 

 

 

 

shall be promptly on-loaded or off-loaded (as the case may be) and removed from the Center, and shall not be parked within any areas of the Center, regardless of duration, except for such loading purposes.

 

22.     Tenant and Tenant’s employees and invitees shall faithfully observe and comply with any reasonable rules and regulations governing the Center as may from time to time be established by Landlord, provided that such rules and regulations do not conflict with the provisions of this Lease or Tenant’s rights hereunder.

 

23.     (a)      Tenant at its own cost and expense shall comply promptly with all laws, rules, and orders of all federal, state and municipal governments, or departments, which may be applicable to the use of the Premises, and shall likewise promptly comply with the requirements of the Insurance Services Office (or successor thereto), or of Landlord’s insurance carrier concerning the use of the Premises.

 

24.     (a)     No use shall be made or permitted to be made of the Premises, or acts done, or materials stored or used in, which would increase the existing rate of insurance upon the building in which Premises are located over the standard rate of insurance prevailing in the area of the Center, or cause a cancellation of any insurance policy covering all or part of such building, nor shall Tenant sell, or permit to be kept, used, or sold in or about the Premises, any article which may be prohibited by the form of fire insurance policy provided in Paragraph 37(g) below, as it may provide from time to time. Tenant shall, at its sole cost and expense, comply with any and all requirements pertaining to the Premises by any insurance organization or company necessary for the mainte nance of reasonable fire and public liability insurance, provided, however, that Tenant shall not be required to make any alterations, additions or improvements to the Premises to so comply unless required by reason of Tenant’s specific use of the Premises (as distinguished from use and occupancy of the Premises generally).

 

 

noise, odors or nuisances, and shall comply with all health, safety and police regulations in all respects, provided, however, that Tenant shall not be required to make any alterations, additions or improvements to the Premises to so comply unless required by reason of Tenant’s specific use of the Premises (as distinguished from use and occupancy of the Premises generally).

 

25.     The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not work a merger, but shall, at the option of Landlord, either (i) terminate all or any existing subleases or subtenancies, or (ii) operate as an assignment to Landlord of any or all such subleases or subtenancies.

 

26.     All notices to be given to Tenant shall be given in writing personally or by depositing the same in the United States mail, postage prepaid, or by other recognized delivery service, and addressed to Tenant at the Premises, whether or not Tenant has departed from, abandoned or vacated the Premises. Notice by Tenant to Landlord shall be in writing and deposited in the United States mail, postage prepaid, or by other recognized delivery service, addressed to Landlord as follows:

 

TO LANDLORD:

 

770 TAMALPAIS DRIVE, INC.,

c/o Madison Marquette Retail Services, Inc.,

100 Corte Madera Town Center

Corte Madera, CA 94925

ATTN: General Manager

 

WITH A REQUIRED COPY TO:

 

770 TAMALPAIS DRIVE, INC.,

c/o Heitman Capital Management LLC,

191 N. Wacker Dr., Suite 2500

Chicago, Illinois 60606

ATTN: Portfolio Manager

 

All notices shall be deemed received upon the earlier of actual receipt or three (3) days after mailing. Landlord and Tenant shall each have the right to change its respective address for notices by notice to the other party in the manner provided above. Notwithstanding the foregoing, any notice that is required under California law to be served as a precursor to the filing of an action for unlawful detainer or breach of lease may be served on Tenant at the Premises with a courtesy copy served by federal express or other reputable overnight service at the address set forth above.

 

27.     (a)      Immediately upon expiration or sooner termination of the Lease Term, Tenant shall vacate and deliver to Landlord possession of the Premises, and except as provided in the next sentence, all tenant improvements and alterations, broom clean, in good condition and in substantially the same condition as they were in on the Rent Commencement Date, or when installed, if later, normal wear and tear excepted. Prior to such delivery, Tenant shall remove all personal property and alterations that Tenant has the right to remove or is obligated to remove under the provisions of Paragraph 12 and shall repair all damage caused and perform all restoration necessary as a result of the removal of any alterations or personal property.

 

28.     Tenant shall permit Landlord and its agents to enter the Premises at all reasonable times for any of the following purposes: to inspect the same; to maintain the building in which the Premises are located; to make such repairs to the Premises as Landlord is obligated to or may elect to make; to make repairs, alterations or additions to any other portion of the building in which the Premises are located; to post notices of non-responsibility for alterations, additions or repairs undertaken by Tenant; to install a leasing sign in the Premises front show window during the final sixty (60) days of the Lease Term; to show the Premises to prospective purchasers or lenders and, during the final one hundred eighty (180) days of the Lease Term, to prospective tenants; and to install, use and mainta in pipes, ducts, conduits, wires and appurtenant meters and equipment included in the Premises whether located within or without the Premises. Landlord may exercise such right of entry without any abatement of rent to Tenant for any loss of occupancy or quiet enjoyment of the Premises unless Landlord is grossly negligent or acts with willful disregard of Tenant’s business interests when making such entry.

 

 

 

 

 

the Premises to a third party, Tenant shall attorn to such party as if it had been named as Landlord under this Lease.

 

30.    (a)      Tenant shall not assign, sublease or otherwise transfer this Lease or any interest under it, nor lease or underlet all or any part of, or any right or privilege appurtenant to, the Premises, nor shall Tenant permit the occupancy or use of any part of the Premises by any other person (each of the above, a “Transfer”) without the prior written consent of Landlord, which shall not be unreasonably withheld. In no event shall Tenant hypothecate or otherwise encumber this Lease. If Tenant is a partnership, any withdrawal or substitution (whether voluntary, involuntary, or by operation of law, and whether occurring at one time or over a period of time) of any partner(s ) owning twenty-five percent (25%) or more of the partnership, any assignment(s) of twenty-five percent (25%) or more (cumulatively) of any interest in the capital or profits of the partnership, or the dissolution of the partnership shall be deemed a Transfer. If Tenant is a corporation, any dissolution, merger consolidation, or other reorganization of Tenant, any sale (or cumulative sales) of more than fifty percent (50%) of the value of the assets of Tenant or, unless Tenant’s stock is publicly traded, any sale (or cumulative sales or transfers) of the capital stock of Tenant in excess of twenty-five percent (25%) thereof shall be deemed a Transfer. Landlord’s consent to any Transfer shall not be construed as a consent to any subsequent Transfer. Any attempted Transfer without the prior written consent of Landlord shall be null and void and shall constitute a default under this Lease.

 

31.     All the terms, covenants and conditions of this Lease shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto, and in the case of Tenant, all amounts due and payable hereunder shall be the obligation of such heirs, executors, administrators and assigns, regardless of the time period to which such amounts relate. Nothing in this paragraph shall be deemed to permit any assignment, subletting, occupancy or use contrary to the provisions of Paragraph 30 above.

 

32.     Landlord, Heitman Capital Management LLC, its employees, manager, contractors or other agents (individually and collectively, “Indemnitees”“) shall not be liable to Tenant, its officers, agents, employees, customers, invitees or third parties for loss of or damage to property, including goods, wares and merchandise, for lost profits, or for injury or death to persons in, on, or about the Premises or the Common Areas, and Tenant agrees to indemnify, defend and hold Indemnitees harmless from and on account thereof no matter how arising or by whom caused, except for such loss or damage as may be caused by the gross negligence or willful act or omission of any Indemnitee. Tenant ack nowledges that the provisions of Paragraph 43 below require Tenant to pay all Indemnitees’ costs, expenses and fees resulting from any action associated with such loss, damage, injury or death, unless caused by the gross negligence or willful act of such Indemnitee. During the Term of this Lease, Tenant shall maintain in full force and effect, with insurance companies with general policyholder’s rating of not less than A and a financial rating of not less than X as rated in the most current available “Best’s” Insurance Reports, licensed to do business in California, Comprehensive General Liability Insurance policies applicable to the Premises and Tenant’s activities, including contractual, with combined single limits of at least $3,000,000.00 per occurrence and at least $3,000,000.00 general aggregate. The minimum limits specified above are the minimum amounts required by Landlord, and may be revised by Landlord from time to time, but not more frequently than once each yea r, to meet changed circumstances, including, without limitation (i) changes in the purchasing power of the dollar, (ii) changes indicated by the amount of plaintiffs’ verdicts in personal injury actions in the State of California, (iii) changes consistent with the insurance requirements contained in leases for space within the Center entered into by Landlord after the date of this Lease, or (iv) changes consistent with the standards required by

 

 

 

 

landlords of other similar shopping centers located in Marin County. Such liability insurance shall be primary and not contributing to any insurance carried by any Indemnitee, and any Indemnitee’s insurance (if any) shall be in excess thereof. Tenant’s indemnification obligations under this paragraph shall extend to damages resulting from risks arising under so-called legal liquor liability, and the above required liability insurance shall include legal liquor liability insurance. Tenant shall cause Indemnitees to be named as additional insureds. Certificates evidencing such coverage, which certificates shall provide that the insurance may not be canceled without thirty (30) days’ prior written notice to Landlord, shall be delivered to Landlord prior to Tenant taking possession of the Premises or enterin g to commence Tenant’s improvements and fixturization.

 

33.     (a)      Landlord shall obtain and maintain in force a standard fire and extended risk insurance policy with Landlord as insured, insuring the Premises and the building of which it is a part in amounts and with deductibles and in form satisfactory to Landlord, which may also include, at Landlord’s option, rental continuation, earthquake, flood, demolition, increased cost of construction due to changes in building codes, and such other coverages as Landlord deems prudent or as may be required under the terms of any mortgage or deed of trust or ground lease at any time encumbering the building of which the Premises form a part. Any proceeds of such insurance shall be payable to Landlord and used for repair and reconstruction of the improvements, if Landlord is obligated under this Lease to repair or reconstruct, subject to any requirements as to the disposition of the proceeds that may be imposed by the beneficiary under any mortgage or deed of trust or the lessor under any ground lease at any time encumbering the building of which the Premises form a part. In lieu of the foregoing insurance policy, Landlord may elect to cover the risks which would have otherwise been covered thereby through a program of self-insurance. In such event, for purposes of Landlord’s repair and restoration obligations under this Lease, and for purposes of the release and waiver of subrogation provisions of Paragraph 34, Landlord shall be deemed to have received insurance proceeds in an amount equal to the sum Landlord would have received had it actually obtained such insurance policy rather than self-insured.

 

34.     Any fire and extended risk insurance carried by either party with respect to the Premises and property contained in the Premises or occurrences related to them shall include a clause or endorsement denying to the insurer rights of subrogation against the other party to the extent such rights have been waived by the insured under the provisions of this Lease. Each party, notwithstanding any provisions of this Lease to the contrary, waives any right of recovery against the other for injury or loss due to hazards covered by fire and extended risk insurance to the extent of the insurance coverage so provided (or the insurance coverage which would have been provided had such party obtained the insurance required of it pursuant to this Lease), regardless of whether such injury or loss is due to the negligence or other act or omission of the other party or its agents, employees, contractors or invitees.

 

 

 

 

termination, Landlord shall have the right to recover from Tenant the sum of (A) the worth at the time of award of the unpaid Rent which has been earned at the time of termination; (B) the worth at the time of award of the amount by which the unpaid Rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; (C) the worth at the time of award of the amount by which the unpaid Rent for the balance of the Term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; (D) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform Tenant’s obligations under this Lease or which in the ordinary course of things would be likely to result therefrom; and (E) all such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time under applicable law; or (ii) to the extent allowed by law, Landlord also has the remedy described in California Civil Code Section 1951.4 (lessor may continue a lease in effect after lessee’s breach and abandonment and recover rent as it becomes due, if lessee has a right to sublet or assign, subject only to reasonable limitations), or (iii) without terminating this Lease, make such alterations and repairs as may be necessary in order to relet the Premises, and relet the Premises or any part thereof for such term or terms (which may be for a term extending beyond the Term of this Lease) and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable. Upon each such reletting all rent and other sums received by Landlord from such reletting shall be applied, first, to the payment of any indebtedness other than rentals due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting, including reasonable brokerage fees and attorneys’ fees and of costs of such alterations and repairs; third, to the payment of rentals due and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied in payment of future rentals payable by Tenant hereunder as the same may become due and payable hereunder. If the rent and other sums received from such reletting during any month are less than the rental to be paid during that month by Tenant hereunder, Tenant shall pay such deficiency to Landlord; if such rent and other sums shall be more, Tenant shall have no right to the excess. Such deficiency shall be calculated and paid monthly. No re-entry or taking possession of the Premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof is decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. Should Landlord at any time terminate this Lease for any breach, in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Premises and reasonable attorneys’ fees, all of which amounts shall be immediately due and payable from Tenant to Landlord. The failure or refusal of Landlord to relet the Premises shall not affect Tenant’s liability. At its option, Landlord may request the appointment of a receiver for Tenant to take possession of the Premises and to exercise all rights of Landlord herein relating to the taking of possession of and reletting the Premises, and to apply any rent and other sums collected from the Premises accordingly. The terms “entry” and “re-entry” are not limited to their technical meanings. For the purpose of this paragraph: “worth at the time of award” shall be computed by allowing interest at the rate of ten percent (10%) per annum; provided, however, the foregoing notwithstanding, the “worth at the time of award” of the amount referred to in (i)(C) above shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%).

 

The trustee may not assume and assign Tenant’s rights under this Lease unless it can provide adequate assurances in the form required under Section 365(b)(3) of the Bankruptcy Code. Such assurances shall include, without limitation, satisfaction that the financial condition and operating performance of the proposed assignee and its guarantors, if any, shall be similar to the financial condition and operating performance of Tenant as of the time Tenant executed this Lease, that the assumption or assignment of this Lease is subject to all the provisions of this Lease, and such assumption or assignment will not disrupt any tenant mix or balance in the Center. Tenant, as debtor in possession, and any such trustee shall be deemed to have rejected this Lease in the event of the failure to comply with any of the above requ irements, and Landlord shall be entitled to obtain an order from the Bankruptcy Court recognizing a rejection of this Lease due to such failure.

 

36.     All covenants and agreements to be performed by Tenant under any of the terms of this Lease shall be performed by Tenant at Tenant’s sole cost and expense and without any abatement of Rent. If Tenant fails to pay any sum of money required to be paid by it hereunder to third parties or fails to perform any other act on its part to be performed hereunder, and such failure continues for ten (10) days after notice thereof by Landlord, Landlord may, without waiving or releasing Tenant from any obligations of Tenant, make any such payment or perform any such other act on Tenant’s behalf. All sums so paid by Landlord and all necessary incidental costs, together with interest on all of the foregoing at the default rate specified in Paragraph 5(c) above from the date of such payment by Landlord, shall be payable to Landlord on demand.

 

37.     (a)    If the Premises are destroyed or materially damaged (i.e., to the extent of five percent (5%) or more of the then full replacement cost) and such destruction or damage is not covered, or required by this Lease to be covered, under Landlord’s casualty insurance policy, with extended coverage, Landlord shall have the right to terminate this Lease by giving written notice of termination to Tenant within thirty (30) days after the date of such damage or destruction. If this Lease is not so terminated, then Landlord shall diligently proceed to repair and restore the Premises.

 

 

 

 

other charges under this Lease shall terminate as of the date of the damage or destruction, or the date Tenant ceases to do business at the Premises, whichever date is later. If Landlord does not exercise such termination right, and the Premises are not repaired or restored within one (1) year after the date of such damage or destruction, then Tenant shall have the right to terminate this Lease by written notice to Landlord given within thirty (30) days after the expiration of such one (1) year period, and Tenant’s obligation to pay Rent and other charges under this Lease shall terminate as of the date of the damage or destruction, or the date Tenant ceases to do business at the Premises, whichever date is later.

 

 

 

38.     Tenant shall, at its sole cost, keep and maintain (including replacements if necessary) the Premises and every part thereof (excepting the exterior structural walls as to load bearing integrity, which Landlord will maintain, and the roof, including but not limited to flashings, rain leaders and downspouts, which Landlord will maintain subject to reimbursement from Tenant pursuant to Paragraph 7(b) hereof) and all appurtenances including glazing, vestibules, any store front (including bulkheads), and the interior of the Premises, and all equipment and trade fixtures therein (regardless of whether installed or paid for by Landlord, as part of Landlord’s Work or otherwise, and further regardless of whether the same shall constitute Landlord’s property pursuant to Paragraph 12 abov e), including replacements of such equipment and trade fixtures if necessary, in clean, good and sanitary order, condition and repair, and Tenant expressly waives any and all rights it might otherwise have under the law to make repairs or replacements at the expense of Landlord. Tenant shall keep its sewers and drains (and use the same only for designated purposes) open and clear and shall keep the sidewalks and Common Areas adjacent to the Premises clean and free of all debris. Tenant agrees that it will paint, varnish, wallpaper, or otherwise redecorate or renovate the interior and storefront of the Premises and Tenant’s trade fixtures when necessary to maintain the Premises in a first-class condition. By taking possession of the Premises, Tenant accepts them as being in good and sanitary order, condition and repair and agrees, on the last day of the Term, or at any sooner termination of this Lease, to surrender the Premises to Landlord with such appurtenances in the same condition as at the Rent Com mencement Date, but with reasonable use, wear and tear, or damage by fire, act of God or by the elements excepted; and Tenant also agrees to remove all of its signs and trade fixtures from the Premises, restoring any damage caused by such removal. During the Term of this Lease, Tenant shall keep in force a preventative maintenance contract with a qualified mechanical contractor covering any heating and air conditioning equipment which serves the Premises exclusively and shall provide to Landlord, not later than thirty (30) days following the Rent Commencement Date, a copy of such contract. At the expiration or earlier termination of the Lease Term Landlord will cause an inspection of the heating and air conditioning equipment in the Premises by Tenant’s mechanical contractor, or if Tenant does not have a service contract in force, by a contractor of Landlord’s selection, and obtain a cost estimate to bring such equipment to good working order if defects are noted, and Tenant agrees to pay to Land lord on demand an amount equal to 75% of such total cost estimate, which share shall be deemed to be Tenant’s deferred repair obligation after excepting fair wear and tear. Landlord may, at its election, obtain directly the aforesaid preventative maintenance contract and include the cost thereof in Tenant’s share of Common Area Charges, except that the cost of any repairs made pursuant to said contract shall be reimbursed by Tenant to Landlord within thirty (30) days after Landlord’s written demand. Notwithstanding anything to the contrary contained in this Paragraph 38, Tenant shall not be responsible for the performance or cost of maintenance or repair necessitated by the gross negligence or willful misconduct of Landlord or its agents, employees or contractors.

 

39.     (a)      If during the Lease Term, the Premises, or any substantial portion thereof (i.e., ten percent (10%) or more of the gross leasable area), are damaged by action of public or other authority, or are taken by eminent domain, or if Landlord receives compensable damage by reason of anything lawfully done in pursuance of public or other authority in connection with the Premises, this Lease shall terminate at Landlord’s election, which election may be made whether or not Landlord’s entire interest has been divested. If only a part of the Premises is taken and the remainder is insufficient for Tenant’s purposes or, in case of such damage or taking, if the time needed to do the construction work necessary to put the Premises or such remainder in pr oper condition for use and occupation is reasonably estimated to exceed six (6) months, or if Landlord does not commence within sixty (60) days after the damage or the surrender of the part taken and proceed with reasonable diligence to do such work, Tenant may terminate this Lease, without penalty, by written notice given to Landlord within thirty (30) days after the right to terminate

 

 

 

arises. If in any such case the Premises are rendered unfit for use and occupation and this Lease is not so terminated, a just proportion of the Minimum Rent according to the nature and extent of the injury shall be abated until the Premises (or in case of a taking what may remain thereof), excluding any fixtures or items installed or paid for by Tenant which Tenant is entitled or required to remove by agreement, have been put by Landlord in proper condition for use and occupation; and, in case of a taking which permanently reduces the area of the Premises, a just proportion of the Minimum Rent shall be abated for the remainder of the Lease Term.

 

(b)       The entire award or compensation in such proceedings, whether for a total or partial taking or for diminution in the value of the leasehold or for the fee, shall belong to and be the property of Landlord; provided, however, that Tenant shall be entitled to recover from the condemnor such compensation as may be separately awarded by the condemnor to Tenant, or recoverable from the condemnor by Tenant in its own right, for the taking of trade fixtures and equipment owned by Tenant which may be removed without injury to the Premises, and for Tenant’s relocation expenses. Each party waives any statutory right in conflict with the provisions of this Paragraph 39, including, without limitation, rights under California Code of Civil Procedure Sections 1265.110, 1265.120 and 126 5.130.

 

 

    (i)       this Lease, including Tenant’s obligation to pay all rentals hereunder, shall be and remain in full force and effect, and

 

    (ii)       Tenant shall be entitled to receive such portion or portions of any award made for such use with respect to the period of the taking which is within the Lease Term, provided that if such taking remains in force at the expiration or earlier termination of this Lease, Tenant shall then pay to Landlord a sum equal to the reasonable cost of performing Tenant’s obligations under Paragraph 38 above with respect to surrender of the Premises and upon such payment shall be excused from such obligations.

 

40.       This Lease is and shall always be subordinate to any ground lease or to any first mortgage or deed of trust which is now or may at any time be placed upon the Premises or any part of them or the building of which the Premises form a part, and Tenant agrees to execute and deliver to Landlord without cost, within ten (10) days following Landlord’s written request therefor, any instrument which may be deemed necessary to further effect or confirm the subordination of this Lease to any such ground lease or first mortgage or deed of trust. Notwithstanding the foregoing, if the holder of any such instrument shall acquire title to the Premises through foreclosure of such mortgage or deed of trust or if the ground lessor shall terminate any such ground lease as a result of Landlo rd’s default thereunder, or if Landlord shall transfer title to the Premises to any such holder in lieu of foreclosure, or surrender the Premises in lieu of default proceedings under such ground lease, unless such holder or ground lessor shall elect otherwise, this Lease shall not terminate and Tenant shall attorn to the new owner as if a party to this Lease, notwithstanding any rule of law to the contrary or the absence of privity of contract.

 

41.       (a) In the event Landlord shall neglect or fail to perform or observe any of the terms, covenants, or conditions contained in this Lease on its part to be performed or observed within thirty (30) days after written notice of default (or if more than thirty (30) days shall be required because of the nature of the default, if Landlord shall fail to commence within such thirty (30) day period and thereafter proceed diligently to cure such default after written notice thereof), then, in

 

 

that event, Landlord shall be liable to Tenant for any and all damages sustained by Tenant as a result of Landlord’s breach.

 

(b)       If Landlord shall fail to perform any covenant, term or condition of this Lease on Landlord’s part to be performed, and as a consequence of its default, Tenant shall recover a money judgment against Landlord, such judgment shall be satisfied solely out of (i) the proceeds of sale received upon execution of such judgment levied against the right, title and interest of Landlord in the buildings and improvements from time to time constituting the Center, and its leasehold or other interest in the underlying realty; (ii) the rents or other income from the Center thereafter receivable by Landlord; (iii) the consideration received by Landlord from the sale or other disposition of all or any part of Landlord’s right, title and interest in and to said property; and (iv) an y condemnation awards or insurance proceeds. It is expressly understood and agreed that neither Landlord nor any partner of Landlord shall be personally liable for any deficiency if the proceeds of the sale or disposition of Landlord’s interest in the Center is insufficient for the payment of any such judgment, and Tenant shall not institute any further action, suit, or similar demand against Landlord, or any partner of Landlord, for or on the account of such deficiency.

 

(c)       Tenant agrees to give the holder of any mortgage or deed of trust encumbering the Premises, and the lessor under any ground lease of the underlying realty, by registered mail, a copy of any notice of default served upon Landlord, provided Tenant has previously been notified in writing of the identity and address of the holder of any such mortgage or deed of trust or ground lessor. Tenant further agrees that if Landlord has failed to cure any default giving rise to such notice within the time period provided for in this Lease, then the holder of such mortgage or deed of trust and such ground lessor shall have an additional ninety (90) days in which to cure such default or, if such default cannot with the exercise of reasonable diligence be cured within such time period, then su ch additional time as may be necessary (including time to obtain possession of the Premises by power of sale or judicial foreclosure, if such should be necessary to effect a cure) if within such ninety (90) days the holder of such mortgage or deed of trust or ground lessor has commenced and is diligently pursuing the remedies necessary to cure such default.

 

42.       Tenant shall at any time, and from time to time, not later than ten (10) days following Landlord’s written request therefor, execute, acknowledge, and deliver to Landlord, without charge, a statement in writing, in form provided by Landlord, certifying the date of commencement of this Lease, that this Lease is unmodified and in full force and effect (or if there have been modifications that the same is in full force and effect as modified and stating the date of the modifications) and further stating the dates to which the Minimum Rent and other charges have been paid, and setting forth such other matters as may reasonably be requested by Landlord. Tenant’s failure to provide such statement within the time period herein stated shall be deemed its admission that the facts as set forth in Landlord’s form are true and complete, and any purchaser, mortgagee, beneficiary or trustee under a deed of trust, or ground lessor, may rely thereon, and with respect to any such reliance, Tenant shall be bound by Landlord’s form; provided, however, Tenant’s failure to provide such statement within the time period herein specified shall, without further notice by Landlord, constitute a default under the terms of this Lease.

 

43.       If Landlord must join in any litigation or arbitration brought by or against Tenant in order to protect an interest of Landlord, or if Landlord is joined as a party in any litigation commenced by or against Tenant, Tenant shall pay all costs, expenses, and attorneys’ and experts’ fees incurred by Landlord et al., or their insurance carriers in connection with such litigation unless such litigation determines that Landlord has committed a breach of this Lease and adjudicates that Landlord is a liable party. If any action at law or in equity is brought between Indemnitees and Tenant to

 

 

enforce any of the provisions and/or rights under this Lease, Indemnitees and Tenant hereby expressly waive the right, if any, to trial by jury in order to avoid the time delays inherent in such process, and Indemnitees and Tenant agree that the unsuccessful party to such litigation shall pay to the successful party all costs and expenses, including reasonable attorneys’ and experts’ fees, incurred by such successful party, and if such successful party recovers judgment in any such action or proceeding, such costs, expenses and attorneys’ and experts’ fees shall be included in and as part of such judgment. If any amount payable by Tenant hereunder is not paid when due, Tenant shall pay Landlord’s cost of collection, including reasonable attorneys’ and experts’ fees, whether or not suit is filed, which shall be payable as Additional Rent hereunder on the rental due date next succeeding Landlord’s written statement to Tenant of such collection costs. As used herein, the term “successful party” shall be the party which obtains the principal relief it has sought, whether by judgment, settlement or compromise. If the party which shall have instituted litigation shall dismiss it as against the other party without the concurrence of such other party, such other party shall be deemed the successful party.

 

44.       This Lease constitutes the entire agreement between Landlord and Tenant, and there are no other agreements, oral or written, that would modify the terms set forth in this Lease. This Lease shall not be binding on either party hereto until executed by both parties and fully executed copies of this Lease are delivered to both parties. Except as otherwise expressly provided herein, any later agreement that would purport to renew, extend, modify, amend or terminate this Lease shall be of no force or effect unless in writing and executed by both Landlord and Tenant.

 

 

 

 

 

(e)       This Lease shall be construed and enforced in accordance with the laws of the State of California.

 

(f)       Tenant represents to Landlord that it has entered into this Lease in reliance solely on its own investigation without any agreements or representations of Landlord or any real estate broker (or their respective agents or employees) except as expressly contained in this Lease. Without limitation of the foregoing, neither Landlord nor any real estate broker (or their respective agents or employees) has made any representations as to (i) Tenant’s likelihood of success at the Center, (ii)(iii) the level of “foot traffic” or other business activity at the Center, or (iv) the continuing occupancy of existing tenants in the Center or new tenants entering the Center. Tenant’s occupancy hereunder is not conditioned on any anchor or other tenant remaining in or c oming to the Center or any minimum occupancy being maintained in the Center. Any closure or other termination or relocation of any other tenant’s business at the Center shall not affect Tenant’s obligation to pay the

full amount of Minimum Rent, and all charges and amounts due under this Lease or any other obligations of Tenant under this Lease.

 

 

(h)       Landlord or Landlord’s Agent shall pay all commissions or other fees to which any brokers identified in Paragraph 1(1) are entitled in accordance with the terms of a separate agreement between Landlord or Landlord’s Agent and each such broker. Landlord and Tenant shall each indemnify the other for any brokerage commissions, fees or other compensation claimed by any other broker or person by reason of its dealings with the other party.

 

 

(j)       In the event any charge imposed under this Lease is either stated to be or construed as interest, in no event whatsoever shall such interest be calculated at a rate which exceeds the highest lawful rate permissible. If, from any circumstances whatsoever, payment of such interest shall be calculated at a rate which transcends the limit validity prescribed by law which a court of competent jurisdiction may deem applicable, then the applicable rate of interest shall be reduced to the limit of such validity and, if from any circumstances Landlord shall ever receive as interest an amount which would exceed the highest lawful rate, such amount which would be excessive interest shall be applied to the reduction of Tenant’s other obligations under this Lease and not to the payme nt of interest.

 

(k)       If Tenant is a corporation, the persons executing this Lease on behalf of Tenant hereby covenant and warrant that (i) they are duly authorized by appropriate resolution and/or the articles and by-laws of said corporation to execute this Lease and thereby bind Tenant to all the terms and conditions thereof, (ii) Tenant is a duly qualified corporation and all steps have been taken prior to the execution of this Lease to qualify Tenant to do business in California, (iii) all franchise and corporate taxes have been paid as of the date of execution, and (iv) all future forms, reports, fees and other documents necessary to comply with applicable laws will be filed when due.

 

(1)       During the entire Lease Term Tenant shall maintain a business license as required by the municipality in which the Center is located.

 

(m)       Tenant specifically agrees and acknowledges that the Town of Corte Madera requires that any and all service and delivery trucks which make pickups from or deliveries to the Center must enter and exit only at the main north and south entrances to the Center, and that under no circumstances shall such trucks utilize the entrances on the west side of the Center, it being the intent of the Town of Corte Madera that no such trucks travel on Madera Boulevard along the west side of the Center and that such restriction be a condition of approval of the Center. Tenant shall take such action as is necessary to cause any and all delivery trucks serving the Premises to conform to the foregoing r estriction and agrees that it shall cause any and all delivery vehicles to make their pickups from or deliveries to the Premises after 9:00 p.m. and before 10:00 a.m. on any day.

 

(n)       All agreements by Tenant contained in this Lease, whether expressed as covenants or conditions, shall be construed to be both covenants and conditions, conferring upon Landlord in the event of the breach thereof the right to terminate this Lease.

(o)       The giving or withholding of consent or approval, or any acts or omissions called for, in this Lease shall be given, withheld or done on a reasonable basis unless a specific provision to the contrary is set forth.

 

(p)       All exhibits attached to this Lease shall be deemed to be incorporated herein by the individual reference to each such exhibit, and all such exhibits shall be deemed to be a part of this Lease as though set forth in full herein.

 

(q)       The Exhibits and Riders referenced in Paragraph 1 (n) of this Lease are incorporated in full herein by this reference.

 

 

 

37

 

RIDER

 

to

 

RETAIL LEASE

 

by and between

 

770 TAMALPAIS DRIVE, INC.

 

and

 

CIRCLE BANK,

 

dated for reference purposes only as of May 20, 2010

 

 

 

California, County of Marin, for the appointment of such person. Within thirty (30) days after appointment of the third arbitrator, the third arbitrator shall determine which of the two original appraisal values closely approximates such fair market rental value, which appraisal shall be deemed to be the fair market rental value for purposes of determining Minimum Rent for the Option Period. Landlord and Tenant shall each bear one-half of the cost of any such arbitration.

 

 

2.           Included in Tenant’s Work (as defined in Exhibit C) shall be the construction of the Premises in a style and quality consistent with Circle Bank’s newest store design, including but not limited to the installation of Tenant’s ID signs, new awnings, the replacement of the storefront, the installation of a complete new interior including but not limited to: electrical systems, lighting, plumbing, mechanical systems, HVAC ducting, walls, floor coverings and ceiling coverings, if any. Tenant shall pay all fees of the Town of Corte Madera’s designated architects in connection with their review of Tenant’s plans and specifications for Tenant’s Work or for any other alterations or improvements undertaken by Tenant in or to the Premises, including, but not limited to, design review and permit fees.

 

 

 

 

4.           Tenant shall permit the tenant occupying Space 305A Corte Madera Town Center, and Landlord and its agents and employees, to enter the Premises at all reasonable times to access the display windows at 305A Corte Madera Town Center. Any such entry shall be conducted so as to minimize interference with Tenant’s conduct of business.

 

5.           Within thirty (30) day after the Delivery Date of the Premises, Landlord and Tenant shall each have the right, at their respective sole cost and expense, to measure the leasable area of the Premises in accordance with Landlord’s standard practices and procedures for measuring premises within the Center and to deliver the results of such measurement to the other party. The leasable area of the Premises shall be determined by measuring from the outside of exterior walls and to the center of any demising walls. In the event that the actual leasable area of the Premises, as so measured, shall be more than one percent (1%) different from the square footage set forth above, the actual leasable area, as so measured, shall be substituted as “TenantR 17;s Gross Leasable Area” for all purposes of the Lease, including but not limited to; Minimum Rent, Common Area Charges, taxes, Marketing Charges, and Landlord’s Construction Contribution, which shall be adjusted on the basis of such actual leasable area. If Landlord and Tenant cannot agree to the size of Tenant’s Gross Leasable Area, Landlord and Tenant shall jointly engage an

 

 

 

 

architect, mutually agreeable to Landlord and Tenant, to determine Tenant’s Gross Leasable Area, whose decision shall be deemed final.

 

 

TOWN CENTER CORTE MADERA
Owner: 770 Tamalpais Drive, Inc.				March 11, 2009
Asset Manager: Morgan Stanley		Real Estate Services: Madison Marquette Retail Services, Inc.		150'

 

 

 

NOTE:

 

The exhibit is diagrammatic. It is only intended for the purpose of indicating the location of the demised premises within the project. It does not purport to show the exact or final location of the columns, walls or other Architectural, Structural, Mechanical or Electrical elements. The landlord reserves the right to eliminate, to add and to make changes to the sizes and/or locations of such elements.

 

 

 

 

EXHIBIT C

 

 

 

 

Ownership:		770 TAMALPAIS DRIVE, INC., c/o LEND LEASE
		REAL ESTATE INVESTMENTS, INC.
Management:		MADISON MARQUETTE RETAIL SERVICES, INC.
Planning & Design:		SZFM Design Studio
		415 ###-###-####

TABLE OF CONTENTS		Page
INTRODUCTION		1
DESIGN APPROVAL PROCESS		2
Definition and Terms		2
Approval Process		3
SIGNAGE DESIGN GUIDELINES		4
General		4
Wall Signs		4
Window Signs		4
Transom Signs		4
Blade Signs		5
Awning Signs		5
Design Guidelines		6
Prohibited Sign Types		6
Signage Design Criteria		7
Inside and Outside Storefront Key Map		8
Sign Measurements		9
DESIGN EXAMPLES (Storefront & Signage)		10
Wall Signs		10
Transom Signs		11
Blade Signs		12
Window Signs		13
Awning Signs		14
Storefronts		15
STOREFRONT DESIGN GUIDELINES		16
General		16
Storefront Projections		16
Storefront Materials		17
Decorative Materials		17
Three-Dimensional Elements		17
Doors		17
Building Connections		18
Facade Treatments		18
Landscape Elements		18
Security		19
AWNING DESIGN GUIDELINES		20
General		20
Materials		20
Design		20
Construction		21
INTERIOR AND LIGHTING DESIGN GUIDELINES		22
General		22
Guidelines		22
Ceilings		22
Walls		22
Floors		22
Exterior Materials		22
Lighting		23

Name and		Town Center Corte Madera
Location		100 Corte Madera Town Center
		Corte Madera, California 94925
Landlord		770 Tamalpais Drive, Inc.
		100 Corte Madera Town Center
		Corte Madera, CA 94925
Management/		Madison Marquette Retail Services, Inc.
Owners Rep.		c/o Town Center Corte Madera Management Office
		100 Corte Madera Town Center
		Corte Madera, CA 94925
		415 ###-###-####
Architect		SZFM Design Studio
		601 Fourth Street, Loft 211
		San Francisco, CA 94107
		415 ###-###-####
Town of		Building and Planning Departments
Corte Madera		300 Tamalpais Drive
		Corte Madera, CA 94925
		415 ###-###-####
Design Review		SZFM Design Studio
Committee (DRC)		Madison Marquette
		415 ###-###-####
Tenant		YOU are the Tenant

		(Max.)				(Max.)
		Overall		Size		Letter		Size
Sign		Inside3		Outside3		Inside		Outside		Remarks4
Wall Sign-Heavy1		Not Allowed		16 sf		N/A		14” Predom2 20” Accent2		Only individually mounted letters are allowed. Wall signs are allowed on the East side only.
Wall Sign-Light1		Not Allowed		20 sf East side only		N/A		16” Predom. 22” Accent		Same as above.
Transom Sign-Heavy		15 sf		20 sf		14” Predom. 20” Accent		16” Predom. 22” Accent
Transom Sign-Light		20 sf		25 sf		16” Predom. 22” Accent		18” Predom. 24” Accent
Blade Sign		7 sf not including bracket		7 sf not includ­ing bracket		N/A		N/A		Blade signs are required for spaces 411-425, 125, 130 and 133. Signs under the arcade may be mounted on the wall or columns or suspended from the ceiling. Signs must be 20’ or more apart. One sign per storefront elevation. 7’-6” sign min. height. Sign shape must incorporate graphic shape or image representative of store’s product or service.
Window Sign		20% of window area		20% of window area		6”		8”		Hours of operation, etc., can only be max. of 2”.
Awning Sign		24 sf 50% of cover­age on valance 25% on awning face		24 sf 50% of cover­age on valance 25% on awning face		Valance 10” awning face 12” Predom. 18” max.		Valance 10” awning face 12” Predom. 18” max.		Internally lit awnings utilizing translucent letters as signage are prohibited. Signage at awning face must incorporate company logo or graphic. Length may not exceed 2/3 the length of the awning.

	o	Bonus square footage is given to tenants utilizing storefront projections up to 24” in depth. Projections beyond 24” up to 32” must be balanced against storefront recesses equaling the total additional square footage beyond the 24” projection. No projection may be greater than 32” in depth from the leaseline. Exception to maximum projection can be granted in certain specific locations.
	o	No storefront projections are allowed where the resulting fire exit widths are below minimum egress standards. Verify locations and code compliance with the architect before you finalize.
	o	Paving at storefront recesses should be a durable, slip-resistant material such as natural stone or ceramic, clay, terra cotta or mosaic tile. Transition between the existing and new paving must be neatly executed.
	o	Doors may not extend beyond the projection.
	o	If projections are cantilevered, refer to State Handicap Code for design guidelines for the visually impaired.
	o	Some storefront locations may require particular projection configurations. If you are planning a projection, please consult the architect before finalizing your design.
	o	Some projections, regardless of their dimension, may be required to be accompanied by recessed entrees/storefronts.