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1 HANSON BRIDGETT LLP
JORDAN A. LAVINSKY, SBN 192215
2 jlavinsky@hansonbridgett.com
WIEMOND WU, SBN 322154
3 wwu@hansonbridgett.com
425 Market Street, 26th Floor
4 San Francisco, California 94105
Telephone: (415) 777-3200
5 Facsimile: (415) 541-9366
6 Attorneys for Livermore Investments, LLC
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF ALAMEDA
10 LIVERMORE INVESTMENTS, LLC, a Case No.
Delaware limited liability company,
11 COMPLAINT FOR UNLAWFUL
Plaintiff, DETAINER
12
v.
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TL & Company LLC, a California limited
14 liability company, and Does 1 to 10,
15 Defendants.
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17 Plaintiff, LIVERMORE INVESTMENTS, LLC ("Plaintiff"), a Delaware limited liability
18 company, alleges:
19 1. Plaintiff is the owner of a shopping center situated in the City of Livermore,
20 County of Alameda, State of California, commonly known as the "Shops at Livermore".
21 2. Defendant, TL & COMPANY LLC ("Defendant"), is a California limited
22 liability company, doing business at the Shops at Livermore as "Wow Wow Hawaiian
23 Lemonade".
24 3. On or about March 19, 2019, Plaintiff, as landlord, and Defendant, as
25 tenant, entered into a written Restaurant Lease for the commercial premises at the Shops
26 at Livermore described as Space I-2 (the "Premises"), 3052 West Jack London Blvd.,
27 Livermore, California 94551. A true copy of the lease, as amended (the “Lease”), is
28 attached as Exhibit A, and incorporated by reference.
20703199.1
COMPLAINT FOR UNLAWFUL DETAINER
1 4. The true names of DOES 1 through 10, inclusive, are unknown to Plaintiff,
2 who therefore sues said defendants by such fictitious names. Plaintiff is informed and
3 believes and thereon alleges that each of the defendants designated as a DOE is liable
4 to Plaintiff in some manner under the Lease, which is the subject of this action, or is
5 subtenant, assignee, successor, or partner of one of the other defendants, or is otherwise
6 in possession of the Premises. Plaintiff will ask leave of Court to allege their true names
7 and capacities when the same have been ascertained.
8 5. Prior to the filing of this complaint, defendants went into possession of the
9 Premises and continue to hold and occupy same.
10 6. Plaintiff has performed all duties, promises, and obligations required of it
11 and all conditions precedent that Plaintiff agreed to perform under the Lease, except
12 where Plaintiff's performance was prevented or delayed by defendants.
13 7. Defendants breached the Lease by failing to pay the full rent and charges
14 due for June 2023 through March 2024, in the amount of $65,273.80, as itemized on
15 page two of Exhibit B.
16 8. On or about March 8, 2024, Plaintiff served Defendant with a written Five-
17 Day Notice to Pay Rent or Quit (the "Notice") by substitute service, certified mail, and
18 overnight delivery as permitted under the terms of the Lease. A true copy of the Notice
19 and certificate of service is attached as Exhibit B and incorporated by reference.
20 9. More than five days have elapsed since service of the Notice and
21 defendants have neglected and refused, and still neglect and refuse, to cure the default
22 in full or to vacate and deliver up possession of the Premises to Plaintiff.
23 10. After service of the Notice but before the filing of this complaint, defendants
24 paid Plaintiff the sum of $10,000.00 towards the amounts due and owing under the
25 Lease. Plaintiff accepted this partial payment without prejudice to its rights, including the
26 right to recover possession of the Premises, as set forth in the notice.
27 11. As a result of defendants’ failure to cure the default or to surrender
28 possession of the Premises, Plaintiff has and will sustain damages in the amount of the
20703199.1 2
COMPLAINT FOR UNLAWFUL DETAINER
1 reasonable rental value of the Premises, to wit, $218.16 per day from April 1, 2024.
2 Plaintiff will continue to sustain damages at said rate for as long as defendants remain in
3 possession of the Premises.
4 WHEREFORE, Plaintiff prays for judgment against defendants, and each of them,
5 jointly and severally, as follows:
6 1. For restitution and possession of the Premises;
7 2. For forfeiture of the Lease;
8 3. For past due rent and charges of $55,273.80;
9 4. For damages in the amount of $218.16 per day from April 1, 2024, for each
10 day that defendants continue to possess the Premises;
11 5. For reasonable attorneys’ fees;
12 6. For costs; and
13 7. For such other and further relief as the Court deems just and proper
15 2024
14 DATED: April ___, HANSON BRIDGETT LLP
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By:
17 JORDAN A. LAVINSKY
Attorneys for Livermore Investments, LLC
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20703199.1 3
COMPLAINT FOR UNLAWFUL DETAINER
1 VERIFICATION
2 I, Robert Himsl, declare:
3 I am managing member of Livermore Investments, LLC, plaintiff herein and
4 owner of the Shops at Livermore. I am authorized to make this verification on behalf of
5 Livermore Investments, LLC. I have read the foregoing Complaint for Unlawful Detainer. I
6 am informed and believe that the matters stated in it are true , and on that ground allege
7 that they are true.
8 I declare under penalty of perjury under the laws of the State of California
9 that the foregoing is true and correct.
10 DATED: Marcir"" I/ , 2024
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By: ~~
Robert Himsl
- re?
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20703 199.1 4
COMPLAINT FOR UNLAWFUL DETAINER
EXHIBIT A
27
3. November 5, 2022 - $11,413.17
4. December 5, 2022 - $11,413.17
5. January 5, 2022 $11,413.17
6. February 5, 2022 $11,413.17
5. Failure to pay. Tenant's failure to follow the above payment schedule will result in an
immediate notice of default and shall be deemed an Event of Default as defined under Article 14:
Default of the Lease.
6. Tenant Improvements Allowance. Landlord agrees to pay the Tenant Allowance as defined in
Section 2.06 of the Lease upon Landlord's approval of the Tenant's conditions being met under
Section 2.06 and Exhibit C of the Lease.
7. Brokers. Each party hereby represents that such party has dealt with no broker in connection
with this Second Amendment. each party agrees to indemnify and hold the other party, its
members principals, beneficiaries, partners, officers, directors, employed, mortgagee(s) and
agents, and the respective principals and members of any such agents harmless from all claims of
any other brokers claiming to have represented the indemnifying party in connection with this
Second Amendment.
8. Miscellaneous.
8.1 Except as expressly amended or modified herein, all the terms of the Lease shall remain
in full force and effect and shall apply with the same force and effect. Time is of the essence in
the Lease and each and all of their respective provisions. Subject to the provisions of the Lease as
to assignment, the agreements, conditions and provisions herein contained shall apply to and bind
the heirs, executors, administrators, successors and assigns of the parties hereto. If any provisions
of the Lease shall be determined to be illegal or unenforceable, such determinization shall not
affect any other provisions of the Lease and all such other provisions shall remain in full force and
effect. The language in all parts of the Lease shall be construed according to tits normal and usual
meaning and not strictly for or against either Landlord or according to its normal and usual
meaning and not strictly for or against either Landlord or Tenant. Headings are for convenience
purposes only and shall not be deemed terms of the Lease.
8.2 Each signatory of the Second Amendment represents hereby that he or she has the
authority to execute and deliver the same on behalf of the party hereto for which such signatory is
acting.
8.3 The terms of this Second Amendment are subject to the approval of Landlord's lender.
If Landlord's lender does not approve the Terms of this Second Amendment, this Second
Amendment shall be null and void.
9. Ratification. Tenant affirms on the date hereof that no breach of default by Landlord has
occurred, that Landlord has fully complied with Landlord's obligations contained in the Lease to
date, and that the Lease, and all of its terms, conditions, covenants, agreements and provisions,
except as hereby modified, are in full force and effect with no defenses or offsets thereto. This
Second Amendment shall not be effective until executed and delivered by both Landlord and
Tenant.
IN WITNESS WHEREOF, the parties have executed this Second Amendment as of the
date first written above.
LANDLORD: LIVERMORE INVESTMENTS, LLC,
A Delaware limited liability co
.....:;;
By: _ _,.£-
~_ __ _ ______,~-
Name: Robert P. Himsl
Title: Managing Member
Date: 7- 27 , 2022
TENANT: TL & COMPANY, LLC
tla Wow Wow H [ : Lemonade
Byt( I
~
Name: Lance Hansen
Date: 9/20
----
, 2022
COVID-19 AMENDMENT TO LEASE
THIS COVID-19 AMENDMENT TO LEASE (this "Second Covid Amendment"), date as of
October _ _, 2020, is entered into by and between Livermore Investments, LLC, a Delaware
limited liability company ("Landlord"), and TL & Company, LLC t/a Wow Wow Hawaiian
Lemonade ("Tenant"). Those capitalized terms not specific defined herein shall have that
meaning set forth in the Original Lease and all Amendments to the Original Lease preceding this
Covid Amendment, if any. The Original Lease and all Amendments to the Original Lease, if any
(except for this Covid Lease) are hereinafter referred to as the "Lease".
RECITALS
A. Landlord and Tenant entered into that certain Retail Lease Agreement dated March
19, 2019 (the "Original Lease"), with respect to those certain premises identified as Space 1-2,
3052 West Jack London Blvd., and containing approximately 1,000 square feet (the "Premises")
at Shops at Livennore in Livermore, California (the "Shopping Center").
B. Because of the outbreak of the Covid-19 virus, Landlord and Tenant now desire to
add a second amendment to the tenns of the Lease on the tenns and conditions set forth herein.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. Incorporation of Recitals and Definitions. Capitalized tenns used in this Second Covid
Amendment not otherwise defined shall have the meanings given such terms in the Lease. The
Recitals are hereby incorporated herein by this reference. In the event of any conflicts between
the Lease, the Covid Amendment dated June 24, 2020 and this Second Covid Amendment, the
terms of this Second Covid Amendment shall control.
2. Rent Deferral. This Covid Amendment to Lease shall defer rent for two (2) months until
January 1, 2021. Two (2) months deferred rent will be due on January 1, 2022 and January 1,
2023. Tenant shall be responsible for timely payment of November and December 2020 CAM,
Insurance and Taxes. Commencing January 1, 2021, monthly rent, CAM, Insurance and taxes
shall be paid in accordance with the terms of the Lease. CAM, Insurance and Taxes owed by
Tenant for May, June, July, August, September and October of 2020 (in the total amount of
$8,250.00) shall be paid to Landlord at the signing of the Covid Amendment. D
3. Brokers. Each party hereby represents that such party has dealt with no broker in connection
with this Second Covid Amendment. each party agrees to indemnify and hold the other party, its
members principals, beneficiaries, partners, officers, directors, employed, mortgagee(s) an~
agents, and the respective principals and members ~f any s~c~ agents h~rmless fr~m all. clau~1s of
any other brokers claiming to have represented the mdemmfymg party m connection with this
Second Covid Amendment.
4. Miscellaneous.
4.1 Except as expressly amended or modified herein, all the terms of the Lease shall
remain in full force and effect and shall apply with the same force and effect. Time is of the
essence in the Lease and each and all of their respective provisions. Subject to the provisions of
the Lease as to assignment, the agreements, conditions and provisions herein contained shall
apply to and bind the heirs, executors, administrators, successors and assigns of the parties
hereto. If any provisions of the Lease shall be determined to be illegal or unenforceable, such
determinization shall not affect any other provisions of the Lease and all such other provisions
shall remain in full force and effect. The language in all parts of the Lease shall be construed
according to tits normal and usual meaning and not strictly for or against either Landlord or
according to its normal and usual meaning and not strictly for or against either Landlord or
Tenant. Headings are for convenience purposes only and shall not be deemed terms of the
Lease.
4.2 Each signatory of the Second Covid Amendment represents hereby that he or she has
the authority to execute and deliver the same on behalf of the party hereto for which such
signatory is acting.
4.3 The terms of this Second Covid Amendment are subject to the approval of
Landlord's lender. If Landlords, lender does not approve the Terms of this Second Covid
Amendment, this Second Covid Amendment shall be null and void.
5. Ratification. Tenant affirms on the date hereof that no breach of default by Landlord has
occurred, that Landlord has fully complied with Landlord's obligations contained in the Lease to
date, and that the Lease, and all of its terms, conditions, covenants, agreements and provisions,
except as hereby modified, are in full force and effect with no defenses or offsets thereto. This
Second Covid Amendment shall not be effective until executed and delivered by both Landlord
and Tenant.
JN WITNESS WHEREOF, the parties have executed this Second Covid Amendment as
of the date first written above.
LANDLORD: LIVERMORE INVESTMENTS, LLC,
A Delaware limited liability company
By: /)
r
Name: Robert P. Himsl
Title: Managing Member
Date: II - / 0 , 2020
TENANT: TL&COMPANY,LLC
t/a Wow Wow Hawaiian Lemonade
By: L jw LEASE TERM: Commencing on the Possession Delivery Date (as defined in Section 2.03)
and ex.piring ten ( I 0) years from the last day of the calendar month in which the Rent Commencement Date
falls. The Possession Delivery Date is estimated to be April 15, 2019. Landlord shall have the right to
postpone the Possession Delivery Date two (2) times without penalty provided Tenant has been provided
with commercially reasonable notice.
(k) OPTION(S) TO EXTEND LEASE TERM: Two (2) renewal options of five (5) years each,
subjecc to the provisions of Section 3.04.
(I) MINIMUM ANNUAL AND MONTHLY RENT: After year l 1 the Minimum Annual Rent
and Monthly Rent for each subsequent Lease Year shall increase annually at one hundred three percent
(103%) of the Minimum Annual Rent and Monthly Rent paid during the prior lease year.
YEAR PER SQUARE FOOT ANNUAL RENT MONTHLY RENT
1 $54.00 $54,000.00 $4,500.00
2- 10 I03% of prior year• s Per Square Foot Rent
OPTIONS
l I-15 103% of prior year' s Per Square Foot Rent
16-20 103% of prior year's Per Square Foot Rent
Tenant shall pay the first month 's Minimum Annual Rent at the time the Lease is executed.
(m) PERCENTAGE RENT: Five percent (5%) above the nalUral break point of One Million
Eighty Thousand Dollars ($ 1,080,000.00) (See Section 4.05). For the purposes of calculating Percentage
Rent, Rent will be defined as Minimum AnnuaJ Rent plus Real Estate Taxes plus Operating Costs plus
Landlord's lnsurance Extras plus Five percent (5%) of gross sales m1nus natural break of One Million
Eighty Thousand Dollars ($ 1,080,000.00) . (For Example: If sales are One Million Two Hundred Thousand
Dollars ($ 1,200,000.00), then Percentage Rent would equal One Million Two Hundred Thousand Dollars
($1,200,000.00) minus One Million Eighty Thousand Dollars ($1,080,000.00) times five percent (5%)
which would equal Six Thousand Dollars ($6,000.00). Percentage Rent for the first calendar year shall be
pro-rated from earlier of (i) the date Tenant opens for business with the general public or (ii) the Rent
Commencement Date and calculated through the end of the calendar year.
(n) TRADE NAME: Wow Wow Hawaiian Lemonade
(o) USE CLAUSE: A fasl food style restaurant selling fresh handcrafted lemonades and acai bowJs
and miscellaneous related items including, but not limited to, lemonades/limeades, coffee by the cup,
smoothies, maca drinks, an acai bowls as well as promotional items that have the Tenant1s logo (including,
but not limited to t-shirts, caps and mugs and beverages), provided that sales area for the promotional items
does not exceed 10% of the Floor Area of the Premises. The concept for the premises is shown on the
proposed menu attached hereto as EXHIBIT I. Tenant shall have the right to aJter Tenant's Menu during
the Term to sell periodic promotion items or to sell additional menu items to be consistent with other Wow
Wow Hawaiian Lemonade restaurant locations, provided such items do not violate any exclusive uses of
any other tenant in the Shopping Center. Tenant shall be permitted to offer samples of the Tenant's products
on or in front of the storefront counter but not in the Common Area of the Center.
(p) TENANT'S PROPORTIONATE SHARE: "Tenant's Proportionate Share" or "Proportionate
Share" shall mean: a fraction, the numerator of which shall be Tenant's Floor Area and the denominator of
which shall be the number of rentable square feet of fl oor space in all stores in the Shopping Center, which
as of the date of this Lease is eighty-seven hundredths percent (0.87%).
(q) REAL ESTATE TAXES: Tenant shall pay its Tenant's Proportionate share of Taxes in
accordance with Article 5. The initial estimate of Real Estate Taxes is Seven Dollars and Fifty Cents
($7 .50) per square foot of leasable space. Notwithstanding anything to the contrary set forth in this Lease,
(i) Tenant acknowledges that there is a Mello Roos community facilities district special tax assessment that
burdens the Shopping Center, and Landlord acknowledges and agrees that the costs of such assessment for
the first full Lease Year have been included in the calculation of the Estimated First Year Real Property
Taxes as set forth above and (ii) Tenant's share of Real Estate Taxes shall not be increased as the result of
a sale of the Shopping Center.
(r) OPERATING COSTS: Tenant shall pay Tenant's Proportionate Share of Operating Costs
in 11ccordance with Section 9.5 for the maintenance of the Common Areas of the Shopping Center. The
initial estimate of Operating Costs is Eight Dollars ($8.00) per square foot of leasable space.
(s) LANDLORD'S INSURANCE • TENANT'S REIMBURSEMENT: Tenant shall pay
Tenant's Proportionate Share of Landlord's insurance costs in accordance with Section 9.6. The initial
estimate of Landlord's Insurance is One Dollar ($ 1.00) per square foot of leasable space.
(t) SECURITY DEPOSIT: Four Thousand Five Hundred Dollars ($4,500.00) as a Security
Deposlt (Section 4.11) shall be paid to Landlord upon execution of this Lease (Section 4.11). In addition to
the Security Deposit, the first month's Rent and Tenant's share of Real Estate Taxes, Operating Costs, and
Landlord's Insurance shall be paid to Landlord upon execution of this Lease.
(u) RESTRICTIONS AND EXCLUSIVES: Attached hereto as Exhibit G are the Restrictions
and Exclusives between Landlord and other tenants of the Shopping Center, which Restrictions and
Exclusives are binding upon Tenant. Tenant shall have a Primary Use exclusive as Quick Serve
Lemonade Operawr with variations of lemonade/limeade providing at least twenty-five percent (25%)
percent of Tenant's overall menu offerings (See Section 6.02). Tenant covenants to honor the
Restrictions and Exclusives. Tenant's exclusive right shall prevent a full-service restaurant in the
Shopping Center which take customer's orders at their table and deliver food to their table from selling
lemonade/limeade to its patrons.
Section 1.02: EXHIBITS, The following drawings and special provisions are attached hereto as
exhibits and hereby made a part of this Lease:
(a) EXHIBIT A - LOCATION OF PREMTSES
(b) EXHIBIT B - SITE PLAN OF SHOPPING CENTER
(c) EXHIBIT C - DESCRIPTION OF LANDLORD'S WORK AND TENANT'S WORK
(d) EXHIBIT D - SJGN CRITERIA
(e) EXHIBIT E-1 - ESTOPPEL CERTIFICATE
(I) EXHIBIT E-2 - SUBORDINATION, NONDISTURBANCE AND ATTORNMENT
AGREEMENT
(g) EXHIBIT F - GUARANTY
(h) EXHIBIT G - RESTRICTIONS & EXCLUSNES
(i) EXHIBIT H - BROKERAGE COMMISSION
(j) EXHIBIT I - PROPOSED MENU
Section 1.03: THE SHOPPING CENTER. The "Shopping Center" shall mean that Shopping
Center shown on Exhibit A, Floor Plan, as the same shall be changed and modified from time to time, and
which area is outlined on Exhibit A with improvements thereon from time to time constituting a
commercial development to be known as Shops at Livermore. Landlord is currently the owner of the
Shopping Center. It is expressly understood and agreed that Exhibit A sets forth only the general layout
and proposed manner of development of the Shopping Center, and it is not and shall not be deemed to be a
warranty, representation, agreement or undertaking on the part of the Landlord that the Shopping Center
will be exactly as shown thereon or that the area thereof will be or remain the same, or more or less, or that
any or all of the buildings for which provision is made thereon will be constructed or that such buildings
will be located precisely within the areas shown on Exhibit A or that such buildings will be of the
dimensions or shapes as shown; it being the intention of Exhibit A only generally to show
diagrammatically, rather than precisely, possible development of the Shopping Center as presently
contemplated. Landlord, in its sole and absolute discretion, may at any time, and from lime to time,
increase, reduce, relocate or change the number, shape, size, height, dimensions or locations of the
walkways, roadways, parking areas and faci lities, entrances and other Common Areas and any stores,
buildings or other improvements in the Shopping Center in any manner whatsoever as Landlord may deem
proper, in its sole and absolute discretion, and Landlord may, and hereby reserves the right, at any time, and
from time to time, to eliminate or add any improvements to any portion of the Shopping Center and to add
land or eliminate land therefrom; provided Landlord retains commercially reasonable customer access to the
Premises.
ARTICLE 2: Premises
Section 2.01: LEASE OF PREMlSES. Landlord, in consideration of the Rent to be paid and the
covenants to be performed by Tenant, does hereby demise and lease unto Tenant, aJld Tenant hereby leases
and takes from Landlord, for the Lease Term and at the rental and upon the covenants and conditions
hereinbefore and hereinafter set forth, the Premises located in the Shopping Center and outlined in red, with
dimension, on Exhibit A attached hereto and made a part hereof. It is understood that the configuration and
dimensions of the Premises, as shown on Exhibit A, and the square footage thereof may vary with field
conditions and measurements, but Landlord agrees that Lhe reJative position of the Premises shall be
substantially as shown on Exhibit A.
Section 2.02: PREMISES DEFINED. For purposes hereof, the Premises shall be deemed to
extend to and include the exterior faces of all exterior walls, or to the building line where there is no wall, or
to the center line of any walls separating the Premises from other tenant premises (whether leased or not,
and whether used for store purposes or not) in the Shopping Center, and shall consist of the space therein,
including the structural fl oors and the bottom of the roof above, together with all permitted mezzanines,
balconies, lobbies and outside selling areas, if any (herein called the "Floor Area") and other appurtenances
specifically granted herein, including Tenant's pro rata share of service or other corridors for Tenant's use,
if any, but excepting and reserving to Landlord the use of the exterior walls and roof. For purposes of this
Lease, the Floor Area of all other buildings constructed at the Shopping Center shall mean and refer to aJI
space constructed for the exclusive occupancy of other tenants and shall be defined and computed in the
same manner as the Premises, except that there shall be excluded from the Floor Area of the buildings
constructed at the Shopping Center, whenever hereinafter referred to, the square footage of (i) any
mezzanine or basement level which is not used for sales purposes, and (ii) any space used for Shopping
Center security, management, maintenance or promotional offices.
Section 2.03: CONSTRUCTION AND OPENING OF THE PREMISES. Landlord shall
proceed to constrnct improvements in the Premises in accordance with Landlord's Work as provided in
Exhibit B, with such minor variations as Landlord and Tenant shall agree upon, which agreement shall not
be unreasonably withheld by either party; upon before or after the Possession Delivery Date as determined
by Landlord, Landlord shall deliver possession of the Premises to Tenant by written notice (the "Possession
Delivery Date"). The Possession Delivery Date is estimated to be April 15, 2019. Promptly after the
Possession Delivery Date, Tenant shall commence and thereafter promptly complete the Tenant's Work
within the Tenant Build Out Period in accordance with the plans and specifications approved by Landlord
as provided in Exhibit B and shall equip the Premises with new trade fixtures and all personal property
necessary or desirable for the operation of Tenant's business; all to the end that Tenant shall open the
Premises for business to the public, fully fixtured and merchandised, by the end of the Tenant Build Out
Period. Notwithstanding the foregoing, if the Premises shall be ready to open for business prior to the date
and time, if any, designated by Landlord for the initial opening for business of the Shopping Center as a
whole (hereinafter the "Grand Opening Date"), Landlord shall have the right to require that Tenant defer
opening the Premises for business until the Grand Opening Date, in which event the Rent Commencement
Date will be postponed until Tenant is permitted to open for business. Tenant shall not unreasonably
interfere with Landlord's construction work at the Shopping Center, nor shall Tenant permit its contractors
or subcontractors to so interfere. Upon taking possession of the Premises, Tenant shall be deemed to have
acknowledged that all work required to be performed in connection with the Premises and any and all other
obligations to be performed by Landlord on or before the opening of the Premises have been performed
satisfactorily, unless Te nant shall notify Landlord to the contrary within fifteen (15) days of completion of
the Work documented in Exhibit B. It is understood that the Possession Delivery Date may be adjusted due
to factors outside the commercially reasonable control of Landlord.
Section 2.04: DELAY IN LANDLORD'S CONSTRUCTION. Notwithstanding anything to the
contrary contained in this Lease, Landlord shall not in any manner be liable to Tenant for damages or any
other claim resulting from failure to deliver the Premises or for any delay in commencing or completing any
work Landlord is to perform or is authorized by Tenant to perform under Exhibit B or work in any other
part or all of the Shopping Center, and Tenant hereby waives all such liability whatsoever; provided,
however, that in the event, subject to permitted extensions and delays pursuant to Section 17.01 hereof,
possession of the Premises is not delivered to Tenant with Landlord's Work therein substantially complete,
as determined by Landlord, not later than six (6) months following the estimated Possession Delivery Date
of April l 5, 20 19, then, in such event, Tenant or Landlord shall thereafter have the right, at any time prior to
delivery of possession of the Pre mises as aforesaid, to terminate and cancel this Lease upon written notice to
the other party, whereupon the term of this Lease shall cease and come to an end, Landlord shall reimburse
Tenant for any advance Rent paid and/or Security Deposit posted or other documented third party
development costs incurred by Tenant (e.g. liquor license application fees, architect fees for plans and
specifications, etc.), and there shall thereupon be no further liability or obligations upon either party under
or with respect to this Lease. Each party will, at the other's request, execute an instrument in recordable
form containing a release and surrender of all right, title and interest in and to this Lease. The foregoi ng
right to termination shall be the sole and exclusive remedy, either at law or in equity, available to the Tenant
in the event of the Landlord's failure, regardless of reason, to complete construction of the Premises and/or
deliver possession of the same to Tenant or to complete any other obligations of Landlord hereunder with
respect to construction of the balance of the Shopping Center.
Section 2.05: TENANT'S PROPERTY. Landlord shall have no responsibility or liability
whatsoever, except for its gross negligence or willful misconduct (and in either event subject, nevertheless,
to the provision of Section 7.02 hereot), for any loss of, or damage to, any fixtures, equipment, merchandise
or other property belonging to Tenant installed or left in the Premises during construction of Tenant's store
or thereafter. All alterations and/or improvements made to the Premises shall automatically become the
property of Tenant upon installation and shall remain with the Premises and become the property of
Landlord upon the expiration or earlier termination of the Lease. Any trade fixtures and other personal
property of Tenant not permanently affixed to the Premises shall, throughout the Lease Term, be and remain
the property of Tenant, subject to Landlord's lien as set forth in Section 14.02(h) hereof.
Section 2.06: TENANT ALLOWANCE. ln addition to Landlord's Work as provided in Exhibit
C, Landlord shall provide Tenant wjtb an improvement allowance in the amount of Twelve Dollars ($12.00)
multiplied by Tenant's Floor Area which equals the sum of Twelve Thousand Dollars ($12,000.00) (the
"Tenant Allowance"). The Allowance shall be paid to Tenant upon the later to occur of (i) thirty (30) days
after Tenant's opening for business in the Premises, and (ii) thirty (30) days after Tenant has provided
Landlord will full lien releases from each any every contractor and subcontractor participating in the
completion of Tenant's work. Notwithstanding the foregoing, Tenant shall have the right to provide
Landlord with an affidavit of payment from subcontractors in lieu of a lien waiver, provided the value of the
work performed by such subcontractor does not exceed Five Thousand Dollars ($5,000.00). Landlord shall
pay Tenant fifty percent (50%) of the Tenant Allowance upon delivery to Landlord of final lien waivers
with the remajning fifty percent (50%) of the Tenant Allowance to be paid to Tenant upon opening for
business. Further details on the documentation required by Landlord for release of the Tenant Allowance
shall be attached to Exhibit C.
ARTICLE 3: TERM
Section 3.01: TERM OF THIS LEASE. The term of this Lease (sometimes herein called the
"Lease Tenn'') shall include the Initial Term and the Main Term. The lnitial Term shaJI begin on the
Possession Delivery Date and, unless sooner tem1inated as herein provided, continue thereafter through the
day immediately prior to the Rent Commencement Date. The Main Term shall mean the period starting on
the Rent Commencement Date and, subject to sooner termination as hereinafter provided, ending on the date
set forth in Section J.Ol(j) for expiration of the Lease Term, subject, however, to extension pursuant the
provisions of Section 1.0J(k) hereof. After the Rent Commencement Date, Landlord and Tenant each
agree, upon request of the other, to execute a supplemental instrument confirming the commencement and
expiration dates of the Main Term.
Section 3.02: LEASE YEAR. The period commencing with the Rent Commencement Date and
ending twelve ( 12) fu ll calendar months thereafter shall constitute the first "Lease Year" as such term is
used herein. Each successive period of twelve ( 12) months during the Majn Term (or any renewal Lenn)
shall constitute a "Lease Year".
Section 3.03: DEFAULT PRIOR TO MAIN TERM. Upon the occurrence of an Event of
Default by Tenant at any time (i) prior co the commencement of the Main Term or (ii) the date upon which
Tenant shall be deemed to have taken possession of the Premises, whichever of (i) or (ii) shall late1· occur,
Landlord may evict Tenant from the Premises with or without Landlord electing to terminate this Lease. At
Landlord's option, Tenant shall pay to Landlord on account of such default, as liquidated and agreed
damages (and not as a penalty), a sum equal to such amount as would have constituted two (2) years Rent
(as hereinafter defined) had Tenant actually taken possession and commenced paying the Rent herein
reserved. It is agreed between Landlord and Tenant that the liquidated and agreed damages stipulated
herein represent the difference between Rent reserved under this Lease and the reasonable rental value of
the Premises plus the reasonable cost to Landlord to relet the Premises: it being impossible to measure such
actual damages. ln addition to the foregoing liquidated damage , in the event this Lease shall be tenninated
and/or Tenant shall be evicted as aforesaid, all leasehold improvements constructed in the Premises,
whether as a part of Tenant's Work or otherwise, shall be and remain the property of Landlord and shall not
be credited against the amount of liquidated damages otherwise payable.
Section 3.04: OPTION PERIOD. It is agreed that at the expiration of the Lease Term, if Tenant
is not then in default under the terms of this Lease, beyond an applicable cure period, then Tenant shall have
the right and option to extend the Lease Term for the period(s) set forth in Section 1.0l(k) hereof. The
option to extend the Lease Term, if any, as set forth on such Section 1.0l(k), shall be exercised by Tenant
giving Landlord notice in writing at least six (6) months before the expiration of the Lease Term. The
Minimum Annual Rent (as hereinafter defined) during the extension period(s) shall be as set forth in
Section 1.01(1). Such option may only be exercised by the named Tenant herein.
ARTICLE 4: RENT
Section 4.01: COVENANT TO PAY RENT. Tenant hereby covenants and agrees to pay for the
use and occupancy of the Premises during the Lease Term. including any extension periods, at the times and
in the manner herein provided, the Minimum Annual Rent and Additional Rent, if any, as set forth below.
Tn this Lease, the term "Rent" means, collectively, !he Minimum Annual Rent and Additional Rent. With
respect to the payment of Rent and with respect to the perfonnance by Tenam of all of its other covenants
and obligations under this Lease, lime is and shall be of the essence.
Section 4.02: RENT COMMENCEMENT DATE. As used in this Lease, the "Rent
Commencement Date'' shall be as set forth in Section 1.0l(h). If the Rent Commencement Date is not on
the first day of a month, Tenant shall pay rent for the first partial month's rent on the Rent Commencement
Date.
Section 4.03: MINIMUM ANNUAL RENT. Tenant shall pay to Landlord for each year during
the Main Term an amount equal to the Minimum Annual Rent set forth in Section 1.01(1). except that the
Minimum Annual Rent for the first and last year (if less than twelve monlhs) and the Minimum Annual
Rent for less than a full calendar month shall be prorated. The Minimum Annual Rent shall be paid in equal
monthly installments in advance on the first day of each month during the Main Term including any
extension periods. Tenant shall pay to Landlord at the time of execution of this Lease an amount equal to
the fi rst one ( 1) full month's Minimum Annual Rent in.i;tallment as the Security Deposit (pursuant to
Section 1.0l(f)).
Section 4.04: "GROSS SALES" DEFINED. "Gross Sales" means the actual sales prices of all
goods, wares and merchandise sold, leased, licensed or delivered and the actual charges for all liervices
performed by Tenant or by any subtenant, licensee or concessionaire in, at, from, or arising out of the use of
the Premises, whether for wholesale, retail, cash or credit, or otherwise, without reserve or deduction for
inability or failure to collect. Gross Sales shall include, without limitation, sales and services (a) where the
orders therefor originate in, at, from, or arising out of the use of the Premises, whether delivery or
performance is made from the Premises or from some other place; (b) made or performed by mail,
telephone, telecopy, telegraph or other form of order; (c) made or performed by means of mechanical or
other vending devices in the Premises; (d) which Tenant or any subtenant, licensee, concessionaire or other
person in the normal and customary course of its business, would credit or attribute to its operations at the
Premises or any part thereof. Any deposit not refunded shall be included in Gross Sales. Each installment
or credit sale shall be treated as a saJe for the fu ll price in the month during which such sale is made,
regardless of whether or when Tenant receives payment therefor. No franchi e or capital stock tax and no
income or si milar tax based on income or profits shall be deducted from Gross Sales.
The following shaJJ not be included in Gross Sales: (i) any exchange of merchandise between
stores of Tenant, if any, where such exchange is made solely for the convenient operation of Tenant's
business and not for the purpose of consummating a saJe made in, at, or from the Premjses, or for the
purpose of depriving Landlord of the benefit of a sale made in, at, or from the Premises, or for the purposes
of depriving Landlord of the benefit of a sale which would otherwise be made in or at the Premises; (ii)
return to shippers or manufacturers; (iii) cash or credit refunds to customers or transactions (not to exceed
the actual selling price of the item returned), otherwise included in Gross Sales where the merchandise sold
is thereafter returned by the purchaser and accepted by Tenant; (iv) sales of trade fixtures, machinery and
equipment after use thereof in the conduct of Tenant's business; (v) amounts collected and paid by Tenant to
any government for any sales or excise tax; (vi) the amount of any discount on sales to bona fide employees
of Tenant employed at the Premises, not to exceed one percent ( l %) of annual Gross Sales; (vii) to the
extent that any purchase was previously included in Gross Sales, bad debts not in excess of two percent
(2%) of Gross Sales in any one Rental Year (provided, however, that if Tenant subsequently receives
payment on any account heretofore excluded, such payment shall be jncluded in Gross Sales for the Rental
Year in which received); (viii) delivery charges; (ix) deposits on custom orders made but not claimed or
paid for by customers will be included as received; (x) mail or catalog order saJes which are neither placed
at, solicited from, filled from, or prud for, at the Premises; (xi) receipts from any permitted pay telephones
and vending machines provided for employee use, if at no profit to Tenant; (xii) interest, service or sales
carrying charges or other charges, including credit card company fees however denomjnated, paid by
customers for extension of credit on sales, provided same are separately stated and not included in the
merchandise sales price; (xiii) any sums and/or credit received in the settlement of claims for loss of or
damage to merchandise; (xiv) gift certificates, or similar vouchers, until such time as the same shall have
been converted into a sale by redemption; (xv) sales at a discount to Tenant's employees, provided the
exclusion does not exceed I% of Tenant's annual Gross Sales; (xvi) sales from charity events held at the
Premises, provided the exclusion does not exceed I% of Tenant's annual Gross Sales; and (xvii) any and all
separately stated alteration workroom charges and delivery charges, provided that no profit is derived by
Tenant.
Section 4.05: STATEMENTS OF GROSS SALES. By the twenty-fifth (25111) day of each
calendar month during each Rental Year and for one ( I) month after the termjnation of the Lease and by the
sixtieth (60°') day following the end of each Rental Year, Tenant shall deliver to Landlord a statement of
Gross SaJes for the preceding calendar month which shall reflect aJJ Gross Sales for such calendar month
and/or Rental Year. The statement shall be accompanied by the signed certificate of the chief financiaJ
officer of Tenant stating that: (i) he has examined the report of Gross Sales; (ii) his examination included
such tests of Tenant's books and records as necessary or appropriate under the circumstances to account for
all Gross Sales; (iii) such report presents accurately and completely all Gross Sales for such period; and (iv)
the Gross Sales as so reported conform with and are computed in compliance with the definition of Gross 1
Sales contained in Section 5.4 hereof. Such annual report and accompanying certification are hereinafter
referred to as the "Monthly Certified Statement" or the "Annual Certified Statement. " Tenant hall pay to
Landlord Percentage Rent, monthly in arrears, within thirty (30) days after the end of each catendar month
or partial calendar month after the annual sales Breakpoint is met.
If Tenant fails to timely deliver any such Certified Statements to Landlord for any reporting period,
Landlord may elect to exercise its rights under Section 5.6(b).
Section 4.06: TENANT'S RECORDS; EXAMINATION. (a) For the purpose of permitting
verification by Landlord of any amounts due as Rental, Tenant will (i) cause the business upon the Premises
to be operated so that a duplicate sales slip, invoice or non-resettable cash register receipt, serially
numbered, or such other device for recording sales as Landlord approves, shall be issued with each sale or
transaction, whether for cash, credit or exchange [TENANT SHALL PROVIDE LANDLORD WITH
DETA.Il..S ON TENANT' S POS SOFTWARE PACKAGE (IF ANY) BEFORE LEASE EXECUTION TO
ENSURE ALL PARTJES AGREE IT MEETS THESE REQUIREMENTS]; and (ii) keep and preserve, at
the Tenant Notice Address, for at least three (3) years after each Re ntal Year, a general ledger, receipt and
disbursement j ournals, and such sales records and other supporting documentation, together with original or
duplicate books and records, which shall disclose all information required to determine Gross Sales.
(b) At any ti me and from time to time after ten ( 10) business days written notice to Tenant,
Landlord or any Mortgagee, their agents and accountants shall have the right to examine any and all of
Te nant's books and records relating to Gross Sales and operations at the Pre mjses. lf such examination
reveals that the Gross Sales reported by Tenant for any period was less than Tenant's actual Gross Sales for
such period, Te nant shall pay to Landlord within thirty (30) days after demand any deficiency in Annual
Percentage Rental together with interest at the Default Rate from the date such portion of Annual
Percentage Rental was due until paid in full. Furthermore, if the examination reveals that actual Gross Sales
for any period vary by more than three percent (3%) from the Gross Sales reported by Tenant for such
period, or if in the commercially reasonable judgment of Landlord Tenant's records are inadequate to
accurately and completely reflect Gross Sales, then (i) Landlord may estimate Tenant's Gross Sales, in the
ma nner provided in Section 5.5, for any period or periods with respect to which Tenant's records are
inadequate and Tenant shall pay within ten ( I 0) days after demand any deficiency in Annual Percentage
Rental together with interest at the Default Rate from the date such portion of annual Percentage Rental was
due until paid in fu ll; (ii) Tenant shall pay within thirty (30) days after demand all reasonable costs incUJTed
by Landlord in connection with the examination of Tenant's records (provided Tenant shall in any event pay
such costs if the examination results from Tenant's failure to timely submit any Annual Certified Statement);
and (iii) within fifteen ( I 5) days after notice from Landlord, Tenant shall demonstrate to Landlord's absolute
satisfaction that it has implemented a record keeping system adequate to reflect and to permit Landlord to
verify Gross Sales. Notwithstanding anything herein to the contrary, if Landlord, in the commercially
reasonable exercise of its discretion, determines that any deficiency in Tenant's records or discrepancies in
Gross Sales reported by Tenant is a result o f any bad faith by Tenant, or if Tenant fails to timely deliver its
monthly statement of Gross Sales on more than fi ve (5) occasions during the Term, or fails to timely delive r
its Annual Certified Statement on more than two (2) occasions during the Term, Landlord shall have the
right immediately to declare an Event of Default.
Section 4.07: ADDITIONAL RENT. Tenant shall pay, as additional rent (herein sometimes
collectively called "Additional Rent"), all sums of money or charges of any nature whatsoever (excluded
from the definition is Minimum Annual Rent) required to be paid by Tenant as and when required by this
Lease, whether or not the same is specifically designated herein as additional rent.
Section 4.08: WHERE RENT PAYABLE AND TO WHOM; NO DEDUCTIONS; LATE
CHARGE. Rent payable by Tenant under this Lease shall be paid when due without prior notice or
demand therefor (except where such prior notice or demand is expressly provided for in this Lease), shall be
payable without diminution, counterclaim, deduction or setoff whatsoever and shall be paid by Tenant in
lawful money of the United States of America to Landlord at the place to which notices are to be sent to
Landlord pursuant to Section 20.01 or to such payee and/or at such other place as may be designated by
Landlord to Tenant in writing at least ten ( 10) days prior to the next ensuing Minimum Annual Rent
installment payment date. In the event any Rent, or installment thereof, is not paid within five (5) days of
when it is due then Tenant shall also pay to Landlord on de mand, as additional rent, a late payment fee
equal to ten percent (10%) of such delinquent Rent for each and every month, or part thereof, thereafter that
such Rent remains unpaid. Such payment shall be deemed liquidated damages and not a penalty, but shall
not excuse the timely payment of Rent. If, during the Lease Term, Landlord receives two (2) or more
checks from Tenant which are returned by Tenant's bank without honoring, Tenant agrees that all checks
th
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1 HANSON BRIDGETT LLP JORDAN A. LAVINSKY, SBN 192215 2 jlavinsky@hansonbridgett.com WIEMOND WU, SBN 322154 3 wwu@hansonbridgett.com 425 Market Street, 26th Floor 4 San Francisco, California 94105 Telephone: (415) 777-3200 5 Facsimile: (415) 541-9366 6 Attorneys for Livermore Investments, LLC 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF ALAMEDA 10 LIVERMORE INVESTMENTS, LLC, a Case No. Delaware limited liability company, 11 COMPLAINT FOR UNLAWFUL Plaintiff, DETAINER 12 v. 13 TL & Company LLC, a California limited 14 liability company, and Does 1 to 10, 15 Defendants. 16 17 Plaintiff, LIVERMORE INVESTMENTS, LLC ("Plaintiff"), a Delaware limited liability 18 company, alleges: 19 1. Plaintiff is the owner of a shopping center situated in the City of Livermore, 20 County of Alameda, State of California, commonly known as the "Shops at Livermore". 21 2. Defendant, TL & COMPANY LLC ("Defendant"), is a California limited 22 liability company, doing business at the Shops at Livermore as "Wow Wow Hawaiian 23 Lemonade". 24 3. On or about March 19, 2019, Plaintiff, as landlord, and Defendant, as 25 tenant, entered into a written Restaurant Lease for the commercial premises at the Shops 26 at Livermore described as Space I-2 (the "Premises"), 3052 West Jack London Blvd., 27 Livermore, California 94551. A true copy of the lease, as amended (the “Lease”), is 28 attached as Exhibit A, and incorporated by reference. 20703199.1 COMPLAINT FOR UNLAWFUL DETAINER 1 4. The true names of DOES 1 through 10, inclusive, are unknown to Plaintiff, 2 who therefore sues said defendants by such fictitious names. Plaintiff is informed and 3 believes and thereon alleges that each of the defendants designated as a DOE is liable 4 to Plaintiff in some manner under the Lease, which is the subject of this action, or is 5 subtenant, assignee, successor, or partner of one of the other defendants, or is otherwise 6 in possession of the Premises. Plaintiff will ask leave of Court to allege their true names 7 and capacities when the same have been ascertained. 8 5. Prior to the filing of this complaint, defendants went into possession of the 9 Premises and continue to hold and occupy same. 10 6. Plaintiff has performed all duties, promises, and obligations required of it 11 and all conditions precedent that Plaintiff agreed to perform under the Lease, except 12 where Plaintiff's performance was prevented or delayed by defendants. 13 7. Defendants breached the Lease by failing to pay the full rent and charges 14 due for June 2023 through March 2024, in the amount of $65,273.80, as itemized on 15 page two of Exhibit B. 16 8. On or about March 8, 2024, Plaintiff served Defendant with a written Five- 17 Day Notice to Pay Rent or Quit (the "Notice") by substitute service, certified mail, and 18 overnight delivery as permitted under the terms of the Lease. A true copy of the Notice 19 and certificate of service is attached as Exhibit B and incorporated by reference. 20 9. More than five days have elapsed since service of the Notice and 21 defendants have neglected and refused, and still neglect and refuse, to cure the default 22 in full or to vacate and deliver up possession of the Premises to Plaintiff. 23 10. After service of the Notice but before the filing of this complaint, defendants 24 paid Plaintiff the sum of $10,000.00 towards the amounts due and owing under the 25 Lease. Plaintiff accepted this partial payment without prejudice to its rights, including the 26 right to recover possession of the Premises, as set forth in the notice. 27 11. As a result of defendants’ failure to cure the default or to surrender 28 possession of the Premises, Plaintiff has and will sustain damages in the amount of the 20703199.1 2 COMPLAINT FOR UNLAWFUL DETAINER 1 reasonable rental value of the Premises, to wit, $218.16 per day from April 1, 2024. 2 Plaintiff will continue to sustain damages at said rate for as long as defendants remain in 3 possession of the Premises. 4 WHEREFORE, Plaintiff prays for judgment against defendants, and each of them, 5 jointly and severally, as follows: 6 1. For restitution and possession of the Premises; 7 2. For forfeiture of the Lease; 8 3. For past due rent and charges of $55,273.80; 9 4. For damages in the amount of $218.16 per day from April 1, 2024, for each 10 day that defendants continue to possess the Premises; 11 5. For reasonable attorneys’ fees; 12 6. For costs; and 13 7. For such other and further relief as the Court deems just and proper 15 2024 14 DATED: April ___, HANSON BRIDGETT LLP 15 16 By: 17 JORDAN A. LAVINSKY Attorneys for Livermore Investments, LLC 18 19 20 21 22 23 24 25 26 27 28 20703199.1 3 COMPLAINT FOR UNLAWFUL DETAINER 1 VERIFICATION 2 I, Robert Himsl, declare: 3 I am managing member of Livermore Investments, LLC, plaintiff herein and 4 owner of the Shops at Livermore. I am authorized to make this verification on behalf of 5 Livermore Investments, LLC. I have read the foregoing Complaint for Unlawful Detainer. I 6 am informed and believe that the matters stated in it are true , and on that ground allege 7 that they are true. 8 I declare under penalty of perjury under the laws of the State of California 9 that the foregoing is true and correct. 10 DATED: Marcir"" I/ , 2024 ~ 11 12 By: ~~ Robert Himsl - re? 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20703 199.1 4 COMPLAINT FOR UNLAWFUL DETAINER EXHIBIT A 27 3. November 5, 2022 - $11,413.17 4. December 5, 2022 - $11,413.17 5. January 5, 2022 $11,413.17 6. February 5, 2022 $11,413.17 5. Failure to pay. Tenant's failure to follow the above payment schedule will result in an immediate notice of default and shall be deemed an Event of Default as defined under Article 14: Default of the Lease. 6. Tenant Improvements Allowance. Landlord agrees to pay the Tenant Allowance as defined in Section 2.06 of the Lease upon Landlord's approval of the Tenant's conditions being met under Section 2.06 and Exhibit C of the Lease. 7. Brokers. Each party hereby represents that such party has dealt with no broker in connection with this Second Amendment. each party agrees to indemnify and hold the other party, its members principals, beneficiaries, partners, officers, directors, employed, mortgagee(s) and agents, and the respective principals and members of any such agents harmless from all claims of any other brokers claiming to have represented the indemnifying party in connection with this Second Amendment. 8. Miscellaneous. 8.1 Except as expressly amended or modified herein, all the terms of the Lease shall remain in full force and effect and shall apply with the same force and effect. Time is of the essence in the Lease and each and all of their respective provisions. Subject to the provisions of the Lease as to assignment, the agreements, conditions and provisions herein contained shall apply to and bind the heirs, executors, administrators, successors and assigns of the parties hereto. If any provisions of the Lease shall be determined to be illegal or unenforceable, such determinization shall not affect any other provisions of the Lease and all such other provisions shall remain in full force and effect. The language in all parts of the Lease shall be construed according to tits normal and usual meaning and not strictly for or against either Landlord or according to its normal and usual meaning and not strictly for or against either Landlord or Tenant. Headings are for convenience purposes only and shall not be deemed terms of the Lease. 8.2 Each signatory of the Second Amendment represents hereby that he or she has the authority to execute and deliver the same on behalf of the party hereto for which such signatory is acting. 8.3 The terms of this Second Amendment are subject to the approval of Landlord's lender. If Landlord's lender does not approve the Terms of this Second Amendment, this Second Amendment shall be null and void. 9. Ratification. Tenant affirms on the date hereof that no breach of default by Landlord has occurred, that Landlord has fully complied with Landlord's obligations contained in the Lease to date, and that the Lease, and all of its terms, conditions, covenants, agreements and provisions, except as hereby modified, are in full force and effect with no defenses or offsets thereto. This Second Amendment shall not be effective until executed and delivered by both Landlord and Tenant. IN WITNESS WHEREOF, the parties have executed this Second Amendment as of the date first written above. LANDLORD: LIVERMORE INVESTMENTS, LLC, A Delaware limited liability co .....:;; By: _ _,.£- ~_ __ _ ______,~- Name: Robert P. Himsl Title: Managing Member Date: 7- 27 , 2022 TENANT: TL & COMPANY, LLC tla Wow Wow H [ : Lemonade Byt( I ~ Name: Lance Hansen Date: 9/20 ---- , 2022 COVID-19 AMENDMENT TO LEASE THIS COVID-19 AMENDMENT TO LEASE (this "Second Covid Amendment"), date as of October _ _, 2020, is entered into by and between Livermore Investments, LLC, a Delaware limited liability company ("Landlord"), and TL & Company, LLC t/a Wow Wow Hawaiian Lemonade ("Tenant"). Those capitalized terms not specific defined herein shall have that meaning set forth in the Original Lease and all Amendments to the Original Lease preceding this Covid Amendment, if any. The Original Lease and all Amendments to the Original Lease, if any (except for this Covid Lease) are hereinafter referred to as the "Lease". RECITALS A. Landlord and Tenant entered into that certain Retail Lease Agreement dated March 19, 2019 (the "Original Lease"), with respect to those certain premises identified as Space 1-2, 3052 West Jack London Blvd., and containing approximately 1,000 square feet (the "Premises") at Shops at Livennore in Livermore, California (the "Shopping Center"). B. Because of the outbreak of the Covid-19 virus, Landlord and Tenant now desire to add a second amendment to the tenns of the Lease on the tenns and conditions set forth herein. AGREEMENT NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: 1. Incorporation of Recitals and Definitions. Capitalized tenns used in this Second Covid Amendment not otherwise defined shall have the meanings given such terms in the Lease. The Recitals are hereby incorporated herein by this reference. In the event of any conflicts between the Lease, the Covid Amendment dated June 24, 2020 and this Second Covid Amendment, the terms of this Second Covid Amendment shall control. 2. Rent Deferral. This Covid Amendment to Lease shall defer rent for two (2) months until January 1, 2021. Two (2) months deferred rent will be due on January 1, 2022 and January 1, 2023. Tenant shall be responsible for timely payment of November and December 2020 CAM, Insurance and Taxes. Commencing January 1, 2021, monthly rent, CAM, Insurance and taxes shall be paid in accordance with the terms of the Lease. CAM, Insurance and Taxes owed by Tenant for May, June, July, August, September and October of 2020 (in the total amount of $8,250.00) shall be paid to Landlord at the signing of the Covid Amendment. D 3. Brokers. Each party hereby represents that such party has dealt with no broker in connection with this Second Covid Amendment. each party agrees to indemnify and hold the other party, its members principals, beneficiaries, partners, officers, directors, employed, mortgagee(s) an~ agents, and the respective principals and members ~f any s~c~ agents h~rmless fr~m all. clau~1s of any other brokers claiming to have represented the mdemmfymg party m connection with this Second Covid Amendment. 4. Miscellaneous. 4.1 Except as expressly amended or modified herein, all the terms of the Lease shall remain in full force and effect and shall apply with the same force and effect. Time is of the essence in the Lease and each and all of their respective provisions. Subject to the provisions of the Lease as to assignment, the agreements, conditions and provisions herein contained shall apply to and bind the heirs, executors, administrators, successors and assigns of the parties hereto. If any provisions of the Lease shall be determined to be illegal or unenforceable, such determinization shall not affect any other provisions of the Lease and all such other provisions shall remain in full force and effect. The language in all parts of the Lease shall be construed according to tits normal and usual meaning and not strictly for or against either Landlord or according to its normal and usual meaning and not strictly for or against either Landlord or Tenant. Headings are for convenience purposes only and shall not be deemed terms of the Lease. 4.2 Each signatory of the Second Covid Amendment represents hereby that he or she has the authority to execute and deliver the same on behalf of the party hereto for which such signatory is acting. 4.3 The terms of this Second Covid Amendment are subject to the approval of Landlord's lender. If Landlords, lender does not approve the Terms of this Second Covid Amendment, this Second Covid Amendment shall be null and void. 5. Ratification. Tenant affirms on the date hereof that no breach of default by Landlord has occurred, that Landlord has fully complied with Landlord's obligations contained in the Lease to date, and that the Lease, and all of its terms, conditions, covenants, agreements and provisions, except as hereby modified, are in full force and effect with no defenses or offsets thereto. This Second Covid Amendment shall not be effective until executed and delivered by both Landlord and Tenant. JN WITNESS WHEREOF, the parties have executed this Second Covid Amendment as of the date first written above. LANDLORD: LIVERMORE INVESTMENTS, LLC, A Delaware limited liability company By: /) r Name: Robert P. Himsl Title: Managing Member Date: II - / 0 , 2020 TENANT: TL&COMPANY,LLC t/a Wow Wow Hawaiian Lemonade By: L jw LEASE TERM: Commencing on the Possession Delivery Date (as defined in Section 2.03) and ex.piring ten ( I 0) years from the last day of the calendar month in which the Rent Commencement Date falls. The Possession Delivery Date is estimated to be April 15, 2019. Landlord shall have the right to postpone the Possession Delivery Date two (2) times without penalty provided Tenant has been provided with commercially reasonable notice. (k) OPTION(S) TO EXTEND LEASE TERM: Two (2) renewal options of five (5) years each, subjecc to the provisions of Section 3.04. (I) MINIMUM ANNUAL AND MONTHLY RENT: After year l 1 the Minimum Annual Rent and Monthly Rent for each subsequent Lease Year shall increase annually at one hundred three percent (103%) of the Minimum Annual Rent and Monthly Rent paid during the prior lease year. YEAR PER SQUARE FOOT ANNUAL RENT MONTHLY RENT 1 $54.00 $54,000.00 $4,500.00 2- 10 I03% of prior year• s Per Square Foot Rent OPTIONS l I-15 103% of prior year' s Per Square Foot Rent 16-20 103% of prior year's Per Square Foot Rent Tenant shall pay the first month 's Minimum Annual Rent at the time the Lease is executed. (m) PERCENTAGE RENT: Five percent (5%) above the nalUral break point of One Million Eighty Thousand Dollars ($ 1,080,000.00) (See Section 4.05). For the purposes of calculating Percentage Rent, Rent will be defined as Minimum AnnuaJ Rent plus Real Estate Taxes plus Operating Costs plus Landlord's lnsurance Extras plus Five percent (5%) of gross sales m1nus natural break of One Million Eighty Thousand Dollars ($ 1,080,000.00) . (For Example: If sales are One Million Two Hundred Thousand Dollars ($ 1,200,000.00), then Percentage Rent would equal One Million Two Hundred Thousand Dollars ($1,200,000.00) minus One Million Eighty Thousand Dollars ($1,080,000.00) times five percent (5%) which would equal Six Thousand Dollars ($6,000.00). Percentage Rent for the first calendar year shall be pro-rated from earlier of (i) the date Tenant opens for business with the general public or (ii) the Rent Commencement Date and calculated through the end of the calendar year. (n) TRADE NAME: Wow Wow Hawaiian Lemonade (o) USE CLAUSE: A fasl food style restaurant selling fresh handcrafted lemonades and acai bowJs and miscellaneous related items including, but not limited to, lemonades/limeades, coffee by the cup, smoothies, maca drinks, an acai bowls as well as promotional items that have the Tenant1s logo (including, but not limited to t-shirts, caps and mugs and beverages), provided that sales area for the promotional items does not exceed 10% of the Floor Area of the Premises. The concept for the premises is shown on the proposed menu attached hereto as EXHIBIT I. Tenant shall have the right to aJter Tenant's Menu during the Term to sell periodic promotion items or to sell additional menu items to be consistent with other Wow Wow Hawaiian Lemonade restaurant locations, provided such items do not violate any exclusive uses of any other tenant in the Shopping Center. Tenant shall be permitted to offer samples of the Tenant's products on or in front of the storefront counter but not in the Common Area of the Center. (p) TENANT'S PROPORTIONATE SHARE: "Tenant's Proportionate Share" or "Proportionate Share" shall mean: a fraction, the numerator of which shall be Tenant's Floor Area and the denominator of which shall be the number of rentable square feet of fl oor space in all stores in the Shopping Center, which as of the date of this Lease is eighty-seven hundredths percent (0.87%). (q) REAL ESTATE TAXES: Tenant shall pay its Tenant's Proportionate share of Taxes in accordance with Article 5. The initial estimate of Real Estate Taxes is Seven Dollars and Fifty Cents ($7 .50) per square foot of leasable space. Notwithstanding anything to the contrary set forth in this Lease, (i) Tenant acknowledges that there is a Mello Roos community facilities district special tax assessment that burdens the Shopping Center, and Landlord acknowledges and agrees that the costs of such assessment for the first full Lease Year have been included in the calculation of the Estimated First Year Real Property Taxes as set forth above and (ii) Tenant's share of Real Estate Taxes shall not be increased as the result of a sale of the Shopping Center. (r) OPERATING COSTS: Tenant shall pay Tenant's Proportionate Share of Operating Costs in 11ccordance with Section 9.5 for the maintenance of the Common Areas of the Shopping Center. The initial estimate of Operating Costs is Eight Dollars ($8.00) per square foot of leasable space. (s) LANDLORD'S INSURANCE • TENANT'S REIMBURSEMENT: Tenant shall pay Tenant's Proportionate Share of Landlord's insurance costs in accordance with Section 9.6. The initial estimate of Landlord's Insurance is One Dollar ($ 1.00) per square foot of leasable space. (t) SECURITY DEPOSIT: Four Thousand Five Hundred Dollars ($4,500.00) as a Security Deposlt (Section 4.11) shall be paid to Landlord upon execution of this Lease (Section 4.11). In addition to the Security Deposit, the first month's Rent and Tenant's share of Real Estate Taxes, Operating Costs, and Landlord's Insurance shall be paid to Landlord upon execution of this Lease. (u) RESTRICTIONS AND EXCLUSIVES: Attached hereto as Exhibit G are the Restrictions and Exclusives between Landlord and other tenants of the Shopping Center, which Restrictions and Exclusives are binding upon Tenant. Tenant shall have a Primary Use exclusive as Quick Serve Lemonade Operawr with variations of lemonade/limeade providing at least twenty-five percent (25%) percent of Tenant's overall menu offerings (See Section 6.02). Tenant covenants to honor the Restrictions and Exclusives. Tenant's exclusive right shall prevent a full-service restaurant in the Shopping Center which take customer's orders at their table and deliver food to their table from selling lemonade/limeade to its patrons. Section 1.02: EXHIBITS, The following drawings and special provisions are attached hereto as exhibits and hereby made a part of this Lease: (a) EXHIBIT A - LOCATION OF PREMTSES (b) EXHIBIT B - SITE PLAN OF SHOPPING CENTER (c) EXHIBIT C - DESCRIPTION OF LANDLORD'S WORK AND TENANT'S WORK (d) EXHIBIT D - SJGN CRITERIA (e) EXHIBIT E-1 - ESTOPPEL CERTIFICATE (I) EXHIBIT E-2 - SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT (g) EXHIBIT F - GUARANTY (h) EXHIBIT G - RESTRICTIONS & EXCLUSNES (i) EXHIBIT H - BROKERAGE COMMISSION (j) EXHIBIT I - PROPOSED MENU Section 1.03: THE SHOPPING CENTER. The "Shopping Center" shall mean that Shopping Center shown on Exhibit A, Floor Plan, as the same shall be changed and modified from time to time, and which area is outlined on Exhibit A with improvements thereon from time to time constituting a commercial development to be known as Shops at Livermore. Landlord is currently the owner of the Shopping Center. It is expressly understood and agreed that Exhibit A sets forth only the general layout and proposed manner of development of the Shopping Center, and it is not and shall not be deemed to be a warranty, representation, agreement or undertaking on the part of the Landlord that the Shopping Center will be exactly as shown thereon or that the area thereof will be or remain the same, or more or less, or that any or all of the buildings for which provision is made thereon will be constructed or that such buildings will be located precisely within the areas shown on Exhibit A or that such buildings will be of the dimensions or shapes as shown; it being the intention of Exhibit A only generally to show diagrammatically, rather than precisely, possible development of the Shopping Center as presently contemplated. Landlord, in its sole and absolute discretion, may at any time, and from lime to time, increase, reduce, relocate or change the number, shape, size, height, dimensions or locations of the walkways, roadways, parking areas and faci lities, entrances and other Common Areas and any stores, buildings or other improvements in the Shopping Center in any manner whatsoever as Landlord may deem proper, in its sole and absolute discretion, and Landlord may, and hereby reserves the right, at any time, and from time to time, to eliminate or add any improvements to any portion of the Shopping Center and to add land or eliminate land therefrom; provided Landlord retains commercially reasonable customer access to the Premises. ARTICLE 2: Premises Section 2.01: LEASE OF PREMlSES. Landlord, in consideration of the Rent to be paid and the covenants to be performed by Tenant, does hereby demise and lease unto Tenant, aJld Tenant hereby leases and takes from Landlord, for the Lease Term and at the rental and upon the covenants and conditions hereinbefore and hereinafter set forth, the Premises located in the Shopping Center and outlined in red, with dimension, on Exhibit A attached hereto and made a part hereof. It is understood that the configuration and dimensions of the Premises, as shown on Exhibit A, and the square footage thereof may vary with field conditions and measurements, but Landlord agrees that Lhe reJative position of the Premises shall be substantially as shown on Exhibit A. Section 2.02: PREMISES DEFINED. For purposes hereof, the Premises shall be deemed to extend to and include the exterior faces of all exterior walls, or to the building line where there is no wall, or to the center line of any walls separating the Premises from other tenant premises (whether leased or not, and whether used for store purposes or not) in the Shopping Center, and shall consist of the space therein, including the structural fl oors and the bottom of the roof above, together with all permitted mezzanines, balconies, lobbies and outside selling areas, if any (herein called the "Floor Area") and other appurtenances specifically granted herein, including Tenant's pro rata share of service or other corridors for Tenant's use, if any, but excepting and reserving to Landlord the use of the exterior walls and roof. For purposes of this Lease, the Floor Area of all other buildings constructed at the Shopping Center shall mean and refer to aJI space constructed for the exclusive occupancy of other tenants and shall be defined and computed in the same manner as the Premises, except that there shall be excluded from the Floor Area of the buildings constructed at the Shopping Center, whenever hereinafter referred to, the square footage of (i) any mezzanine or basement level which is not used for sales purposes, and (ii) any space used for Shopping Center security, management, maintenance or promotional offices. Section 2.03: CONSTRUCTION AND OPENING OF THE PREMISES. Landlord shall proceed to constrnct improvements in the Premises in accordance with Landlord's Work as provided in Exhibit B, with such minor variations as Landlord and Tenant shall agree upon, which agreement shall not be unreasonably withheld by either party; upon before or after the Possession Delivery Date as determined by Landlord, Landlord shall deliver possession of the Premises to Tenant by written notice (the "Possession Delivery Date"). The Possession Delivery Date is estimated to be April 15, 2019. Promptly after the Possession Delivery Date, Tenant shall commence and thereafter promptly complete the Tenant's Work within the Tenant Build Out Period in accordance with the plans and specifications approved by Landlord as provided in Exhibit B and shall equip the Premises with new trade fixtures and all personal property necessary or desirable for the operation of Tenant's business; all to the end that Tenant shall open the Premises for business to the public, fully fixtured and merchandised, by the end of the Tenant Build Out Period. Notwithstanding the foregoing, if the Premises shall be ready to open for business prior to the date and time, if any, designated by Landlord for the initial opening for business of the Shopping Center as a whole (hereinafter the "Grand Opening Date"), Landlord shall have the right to require that Tenant defer opening the Premises for business until the Grand Opening Date, in which event the Rent Commencement Date will be postponed until Tenant is permitted to open for business. Tenant shall not unreasonably interfere with Landlord's construction work at the Shopping Center, nor shall Tenant permit its contractors or subcontractors to so interfere. Upon taking possession of the Premises, Tenant shall be deemed to have acknowledged that all work required to be performed in connection with the Premises and any and all other obligations to be performed by Landlord on or before the opening of the Premises have been performed satisfactorily, unless Te nant shall notify Landlord to the contrary within fifteen (15) days of completion of the Work documented in Exhibit B. It is understood that the Possession Delivery Date may be adjusted due to factors outside the commercially reasonable control of Landlord. Section 2.04: DELAY IN LANDLORD'S CONSTRUCTION. Notwithstanding anything to the contrary contained in this Lease, Landlord shall not in any manner be liable to Tenant for damages or any other claim resulting from failure to deliver the Premises or for any delay in commencing or completing any work Landlord is to perform or is authorized by Tenant to perform under Exhibit B or work in any other part or all of the Shopping Center, and Tenant hereby waives all such liability whatsoever; provided, however, that in the event, subject to permitted extensions and delays pursuant to Section 17.01 hereof, possession of the Premises is not delivered to Tenant with Landlord's Work therein substantially complete, as determined by Landlord, not later than six (6) months following the estimated Possession Delivery Date of April l 5, 20 19, then, in such event, Tenant or Landlord shall thereafter have the right, at any time prior to delivery of possession of the Pre mises as aforesaid, to terminate and cancel this Lease upon written notice to the other party, whereupon the term of this Lease shall cease and come to an end, Landlord shall reimburse Tenant for any advance Rent paid and/or Security Deposit posted or other documented third party development costs incurred by Tenant (e.g. liquor license application fees, architect fees for plans and specifications, etc.), and there shall thereupon be no further liability or obligations upon either party under or with respect to this Lease. Each party will, at the other's request, execute an instrument in recordable form containing a release and surrender of all right, title and interest in and to this Lease. The foregoi ng right to termination shall be the sole and exclusive remedy, either at law or in equity, available to the Tenant in the event of the Landlord's failure, regardless of reason, to complete construction of the Premises and/or deliver possession of the same to Tenant or to complete any other obligations of Landlord hereunder with respect to construction of the balance of the Shopping Center. Section 2.05: TENANT'S PROPERTY. Landlord shall have no responsibility or liability whatsoever, except for its gross negligence or willful misconduct (and in either event subject, nevertheless, to the provision of Section 7.02 hereot), for any loss of, or damage to, any fixtures, equipment, merchandise or other property belonging to Tenant installed or left in the Premises during construction of Tenant's store or thereafter. All alterations and/or improvements made to the Premises shall automatically become the property of Tenant upon installation and shall remain with the Premises and become the property of Landlord upon the expiration or earlier termination of the Lease. Any trade fixtures and other personal property of Tenant not permanently affixed to the Premises shall, throughout the Lease Term, be and remain the property of Tenant, subject to Landlord's lien as set forth in Section 14.02(h) hereof. Section 2.06: TENANT ALLOWANCE. ln addition to Landlord's Work as provided in Exhibit C, Landlord shall provide Tenant wjtb an improvement allowance in the amount of Twelve Dollars ($12.00) multiplied by Tenant's Floor Area which equals the sum of Twelve Thousand Dollars ($12,000.00) (the "Tenant Allowance"). The Allowance shall be paid to Tenant upon the later to occur of (i) thirty (30) days after Tenant's opening for business in the Premises, and (ii) thirty (30) days after Tenant has provided Landlord will full lien releases from each any every contractor and subcontractor participating in the completion of Tenant's work. Notwithstanding the foregoing, Tenant shall have the right to provide Landlord with an affidavit of payment from subcontractors in lieu of a lien waiver, provided the value of the work performed by such subcontractor does not exceed Five Thousand Dollars ($5,000.00). Landlord shall pay Tenant fifty percent (50%) of the Tenant Allowance upon delivery to Landlord of final lien waivers with the remajning fifty percent (50%) of the Tenant Allowance to be paid to Tenant upon opening for business. Further details on the documentation required by Landlord for release of the Tenant Allowance shall be attached to Exhibit C. ARTICLE 3: TERM Section 3.01: TERM OF THIS LEASE. The term of this Lease (sometimes herein called the "Lease Tenn'') shall include the Initial Term and the Main Term. The lnitial Term shaJI begin on the Possession Delivery Date and, unless sooner tem1inated as herein provided, continue thereafter through the day immediately prior to the Rent Commencement Date. The Main Term shall mean the period starting on the Rent Commencement Date and, subject to sooner termination as hereinafter provided, ending on the date set forth in Section J.Ol(j) for expiration of the Lease Term, subject, however, to extension pursuant the provisions of Section 1.0J(k) hereof. After the Rent Commencement Date, Landlord and Tenant each agree, upon request of the other, to execute a supplemental instrument confirming the commencement and expiration dates of the Main Term. Section 3.02: LEASE YEAR. The period commencing with the Rent Commencement Date and ending twelve ( 12) fu ll calendar months thereafter shall constitute the first "Lease Year" as such term is used herein. Each successive period of twelve ( 12) months during the Majn Term (or any renewal Lenn) shall constitute a "Lease Year". Section 3.03: DEFAULT PRIOR TO MAIN TERM. Upon the occurrence of an Event of Default by Tenant at any time (i) prior co the commencement of the Main Term or (ii) the date upon which Tenant shall be deemed to have taken possession of the Premises, whichever of (i) or (ii) shall late1· occur, Landlord may evict Tenant from the Premises with or without Landlord electing to terminate this Lease. At Landlord's option, Tenant shall pay to Landlord on account of such default, as liquidated and agreed damages (and not as a penalty), a sum equal to such amount as would have constituted two (2) years Rent (as hereinafter defined) had Tenant actually taken possession and commenced paying the Rent herein reserved. It is agreed between Landlord and Tenant that the liquidated and agreed damages stipulated herein represent the difference between Rent reserved under this Lease and the reasonable rental value of the Premises plus the reasonable cost to Landlord to relet the Premises: it being impossible to measure such actual damages. ln addition to the foregoing liquidated damage , in the event this Lease shall be tenninated and/or Tenant shall be evicted as aforesaid, all leasehold improvements constructed in the Premises, whether as a part of Tenant's Work or otherwise, shall be and remain the property of Landlord and shall not be credited against the amount of liquidated damages otherwise payable. Section 3.04: OPTION PERIOD. It is agreed that at the expiration of the Lease Term, if Tenant is not then in default under the terms of this Lease, beyond an applicable cure period, then Tenant shall have the right and option to extend the Lease Term for the period(s) set forth in Section 1.0l(k) hereof. The option to extend the Lease Term, if any, as set forth on such Section 1.0l(k), shall be exercised by Tenant giving Landlord notice in writing at least six (6) months before the expiration of the Lease Term. The Minimum Annual Rent (as hereinafter defined) during the extension period(s) shall be as set forth in Section 1.01(1). Such option may only be exercised by the named Tenant herein. ARTICLE 4: RENT Section 4.01: COVENANT TO PAY RENT. Tenant hereby covenants and agrees to pay for the use and occupancy of the Premises during the Lease Term. including any extension periods, at the times and in the manner herein provided, the Minimum Annual Rent and Additional Rent, if any, as set forth below. Tn this Lease, the term "Rent" means, collectively, !he Minimum Annual Rent and Additional Rent. With respect to the payment of Rent and with respect to the perfonnance by Tenam of all of its other covenants and obligations under this Lease, lime is and shall be of the essence. Section 4.02: RENT COMMENCEMENT DATE. As used in this Lease, the "Rent Commencement Date'' shall be as set forth in Section 1.0l(h). If the Rent Commencement Date is not on the first day of a month, Tenant shall pay rent for the first partial month's rent on the Rent Commencement Date. Section 4.03: MINIMUM ANNUAL RENT. Tenant shall pay to Landlord for each year during the Main Term an amount equal to the Minimum Annual Rent set forth in Section 1.01(1). except that the Minimum Annual Rent for the first and last year (if less than twelve monlhs) and the Minimum Annual Rent for less than a full calendar month shall be prorated. The Minimum Annual Rent shall be paid in equal monthly installments in advance on the first day of each month during the Main Term including any extension periods. Tenant shall pay to Landlord at the time of execution of this Lease an amount equal to the fi rst one ( 1) full month's Minimum Annual Rent in.i;tallment as the Security Deposit (pursuant to Section 1.0l(f)). Section 4.04: "GROSS SALES" DEFINED. "Gross Sales" means the actual sales prices of all goods, wares and merchandise sold, leased, licensed or delivered and the actual charges for all liervices performed by Tenant or by any subtenant, licensee or concessionaire in, at, from, or arising out of the use of the Premises, whether for wholesale, retail, cash or credit, or otherwise, without reserve or deduction for inability or failure to collect. Gross Sales shall include, without limitation, sales and services (a) where the orders therefor originate in, at, from, or arising out of the use of the Premises, whether delivery or performance is made from the Premises or from some other place; (b) made or performed by mail, telephone, telecopy, telegraph or other form of order; (c) made or performed by means of mechanical or other vending devices in the Premises; (d) which Tenant or any subtenant, licensee, concessionaire or other person in the normal and customary course of its business, would credit or attribute to its operations at the Premises or any part thereof. Any deposit not refunded shall be included in Gross Sales. Each installment or credit sale shall be treated as a saJe for the fu ll price in the month during which such sale is made, regardless of whether or when Tenant receives payment therefor. No franchi e or capital stock tax and no income or si milar tax based on income or profits shall be deducted from Gross Sales. The following shaJJ not be included in Gross Sales: (i) any exchange of merchandise between stores of Tenant, if any, where such exchange is made solely for the convenient operation of Tenant's business and not for the purpose of consummating a saJe made in, at, or from the Premjses, or for the purpose of depriving Landlord of the benefit of a sale made in, at, or from the Premises, or for the purposes of depriving Landlord of the benefit of a sale which would otherwise be made in or at the Premises; (ii) return to shippers or manufacturers; (iii) cash or credit refunds to customers or transactions (not to exceed the actual selling price of the item returned), otherwise included in Gross Sales where the merchandise sold is thereafter returned by the purchaser and accepted by Tenant; (iv) sales of trade fixtures, machinery and equipment after use thereof in the conduct of Tenant's business; (v) amounts collected and paid by Tenant to any government for any sales or excise tax; (vi) the amount of any discount on sales to bona fide employees of Tenant employed at the Premises, not to exceed one percent ( l %) of annual Gross Sales; (vii) to the extent that any purchase was previously included in Gross Sales, bad debts not in excess of two percent (2%) of Gross Sales in any one Rental Year (provided, however, that if Tenant subsequently receives payment on any account heretofore excluded, such payment shall be jncluded in Gross Sales for the Rental Year in which received); (viii) delivery charges; (ix) deposits on custom orders made but not claimed or paid for by customers will be included as received; (x) mail or catalog order saJes which are neither placed at, solicited from, filled from, or prud for, at the Premises; (xi) receipts from any permitted pay telephones and vending machines provided for employee use, if at no profit to Tenant; (xii) interest, service or sales carrying charges or other charges, including credit card company fees however denomjnated, paid by customers for extension of credit on sales, provided same are separately stated and not included in the merchandise sales price; (xiii) any sums and/or credit received in the settlement of claims for loss of or damage to merchandise; (xiv) gift certificates, or similar vouchers, until such time as the same shall have been converted into a sale by redemption; (xv) sales at a discount to Tenant's employees, provided the exclusion does not exceed I% of Tenant's annual Gross Sales; (xvi) sales from charity events held at the Premises, provided the exclusion does not exceed I% of Tenant's annual Gross Sales; and (xvii) any and all separately stated alteration workroom charges and delivery charges, provided that no profit is derived by Tenant. Section 4.05: STATEMENTS OF GROSS SALES. By the twenty-fifth (25111) day of each calendar month during each Rental Year and for one ( I) month after the termjnation of the Lease and by the sixtieth (60°') day following the end of each Rental Year, Tenant shall deliver to Landlord a statement of Gross SaJes for the preceding calendar month which shall reflect aJJ Gross Sales for such calendar month and/or Rental Year. The statement shall be accompanied by the signed certificate of the chief financiaJ officer of Tenant stating that: (i) he has examined the report of Gross Sales; (ii) his examination included such tests of Tenant's books and records as necessary or appropriate under the circumstances to account for all Gross Sales; (iii) such report presents accurately and completely all Gross Sales for such period; and (iv) the Gross Sales as so reported conform with and are computed in compliance with the definition of Gross 1 Sales contained in Section 5.4 hereof. Such annual report and accompanying certification are hereinafter referred to as the "Monthly Certified Statement" or the "Annual Certified Statement. " Tenant hall pay to Landlord Percentage Rent, monthly in arrears, within thirty (30) days after the end of each catendar month or partial calendar month after the annual sales Breakpoint is met. If Tenant fails to timely deliver any such Certified Statements to Landlord for any reporting period, Landlord may elect to exercise its rights under Section 5.6(b). Section 4.06: TENANT'S RECORDS; EXAMINATION. (a) For the purpose of permitting verification by Landlord of any amounts due as Rental, Tenant will (i) cause the business upon the Premises to be operated so that a duplicate sales slip, invoice or non-resettable cash register receipt, serially numbered, or such other device for recording sales as Landlord approves, shall be issued with each sale or transaction, whether for cash, credit or exchange [TENANT SHALL PROVIDE LANDLORD WITH DETA.Il..S ON TENANT' S POS SOFTWARE PACKAGE (IF ANY) BEFORE LEASE EXECUTION TO ENSURE ALL PARTJES AGREE IT MEETS THESE REQUIREMENTS]; and (ii) keep and preserve, at the Tenant Notice Address, for at least three (3) years after each Re ntal Year, a general ledger, receipt and disbursement j ournals, and such sales records and other supporting documentation, together with original or duplicate books and records, which shall disclose all information required to determine Gross Sales. (b) At any ti me and from time to time after ten ( 10) business days written notice to Tenant, Landlord or any Mortgagee, their agents and accountants shall have the right to examine any and all of Te nant's books and records relating to Gross Sales and operations at the Pre mjses. lf such examination reveals that the Gross Sales reported by Tenant for any period was less than Tenant's actual Gross Sales for such period, Te nant shall pay to Landlord within thirty (30) days after demand any deficiency in Annual Percentage Rental together with interest at the Default Rate from the date such portion of Annual Percentage Rental was due until paid in full. Furthermore, if the examination reveals that actual Gross Sales for any period vary by more than three percent (3%) from the Gross Sales reported by Tenant for such period, or if in the commercially reasonable judgment of Landlord Tenant's records are inadequate to accurately and completely reflect Gross Sales, then (i) Landlord may estimate Tenant's Gross Sales, in the ma nner provided in Section 5.5, for any period or periods with respect to which Tenant's records are inadequate and Tenant shall pay within ten ( I 0) days after demand any deficiency in Annual Percentage Rental together with interest at the Default Rate from the date such portion of annual Percentage Rental was due until paid in fu ll; (ii) Tenant shall pay within thirty (30) days after demand all reasonable costs incUJTed by Landlord in connection with the examination of Tenant's records (provided Tenant shall in any event pay such costs if the examination results from Tenant's failure to timely submit any Annual Certified Statement); and (iii) within fifteen ( I 5) days after notice from Landlord, Tenant shall demonstrate to Landlord's absolute satisfaction that it has implemented a record keeping system adequate to reflect and to permit Landlord to verify Gross Sales. Notwithstanding anything herein to the contrary, if Landlord, in the commercially reasonable exercise of its discretion, determines that any deficiency in Tenant's records or discrepancies in Gross Sales reported by Tenant is a result o f any bad faith by Tenant, or if Tenant fails to timely deliver its monthly statement of Gross Sales on more than fi ve (5) occasions during the Term, or fails to timely delive r its Annual Certified Statement on more than two (2) occasions during the Term, Landlord shall have the right immediately to declare an Event of Default. Section 4.07: ADDITIONAL RENT. Tenant shall pay, as additional rent (herein sometimes collectively called "Additional Rent"), all sums of money or charges of any nature whatsoever (excluded from the definition is Minimum Annual Rent) required to be paid by Tenant as and when required by this Lease, whether or not the same is specifically designated herein as additional rent. Section 4.08: WHERE RENT PAYABLE AND TO WHOM; NO DEDUCTIONS; LATE CHARGE. Rent payable by Tenant under this Lease shall be paid when due without prior notice or demand therefor (except where such prior notice or demand is expressly provided for in this Lease), shall be payable without diminution, counterclaim, deduction or setoff whatsoever and shall be paid by Tenant in lawful money of the United States of America to Landlord at the place to which notices are to be sent to Landlord pursuant to Section 20.01 or to such payee and/or at such other place as may be designated by Landlord to Tenant in writing at least ten ( 10) days prior to the next ensuing Minimum Annual Rent installment payment date. In the event any Rent, or installment thereof, is not paid within five (5) days of when it is due then Tenant shall also pay to Landlord on de mand, as additional rent, a late payment fee equal to ten percent (10%) of such delinquent Rent for each and every month, or part thereof, thereafter that such Rent remains unpaid. Such payment shall be deemed liquidated damages and not a penalty, but shall not excuse the timely payment of Rent. If, during the Lease Term, Landlord receives two (2) or more checks from Tenant which are returned by Tenant's bank without honoring, Tenant agrees that all checks th