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1 Jonathon J. Herzog, Bar No. 162339
jherzog@westzog.com
2 WESTON HERZOG LLP
550 N. Brand Boulevard, Suite 1990
3
Glendale, California 91203
4 Telephone: (818) 755-8555
Facsimile: (818) 755-8542
5
Attorneys for Plaintiff,
6 LIVERMORE PREMIUM OUTLETS, LLC
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF ALAMEDA
10 OAKLAND - RCD COURTHOUSE
11 LIVERMORE PREMIUM OUTLETS, Case No.:
LLC,
550 N. BRAND BOULEVARD, SUITE 1990
12 COMPLAINT FOR UNLAWFUL DETAINER
WESTON HERZOG LLP
GLENDALE, CALIFORNIA 91203
Plaintiff,
TELEPHONE: (818) 755-8555
13
v.
ATTORNEYS
14
TOYS N MOTION INC.; NADER
15 ELFEKY; REHAB SAAD; AND DOES 1
TO 10, INCLUSIVE,
16
Defendants.
17
18
19 Plaintiff, LIVERMORE PREMIUM OUTLETS, LLC, alleges as follows:
20 1. At all times mentioned herein, Plaintiff, LIVERMORE PREMIUM OUTLETS,
21 LLC was and still is a Delaware limited liability company qualified to do and doing business in the
22 State of California, County of Alameda.
23 2. At all times mentioned herein, Plaintiff was and is the owner of those certain
24 premises commonly known as the San Francisco Premium Outlets, located 2774 Livermore Outlets
25 Drive, Unit 310. Livermore, California 94551 (the “Premises”).
26 3. Plaintiff is informed and believes, and thereon alleges, that Defendant, TOYS N
27 MOTION INC. was and is a California corporation with its principal place of business in the City
28 of Livermore, County of Alameda, State of California.
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COMPLAINT FOR UNLAWFUL DETAINER
WH: 1013514.1
1 4. Plaintiff is informed and believes, and thereon alleges, the Defendants, NADER
2 ELFEKY and REHAB SAAD are individuals over the age of 18 and are residents of the City of
3 Dublin, State of California.
4 5. At all times mentioned herein, Defendants, and each of them, were and still are
5 doing business as Toys N Motion in the City of Livermore, County of Alameda, State of
6 California.
7 6. The true names and capacities, whether individual, corporate or associate, or
8 otherwise, of the Defendants named herein as DOES 1 through 10, inclusive, are unknown to
9 Plaintiff, who therefore sues said Defendants by such fictitious names pursuant to Code of Civil
10 Procedure §474, and Plaintiff will amend this complaint to show their true names and capacities
11 when the same have been ascertained. Plaintiff is informed and believes, and based upon such
550 N. BRAND BOULEVARD, SUITE 1990
12 information and belief, alleges that all Defendants sued herein as DOES are in some manner
WESTON HERZOG LLP
GLENDALE, CALIFORNIA 91203
TELEPHONE: (818) 755-8555
13 responsible for the acts herein alleged.
ATTORNEYS
14 7. At all times herein mentioned, each of the Defendants, including the Defendants
15 named as DOE herein, was the agent and/or employee of each of the remaining Defendants and in
16 doing the things mentioned herein was acting within the scope of such agency and/or employment.
17 Each of the Defendants claims some possessory or other interest in the Premises.
18 8. On December 7, 2021, at Livermore, California, Plaintiff and Defendant, TOYS N
19 MOTION INC. entered into a written lease for the Premises whose term commenced December 1,
20 2021 and was to continue the last day of the tenth (10th) Lease Year (the “Lease”). A true and
21 correct copy of the Lease is attached hereto as Exhibit “A.”
22 9. On or about, December 7, 2021, to induce Plaintiff to enter into the Lease,
23 Defendants, NADER ELFEKY and REHAB SAAD signed an absolute and unconditional
24 Guaranty to perform all covenants and obligations of the tenant pursuant to the Lease. A true and
25 correct copy of the Guaranty is attached hereto as Exhibit “B.”
26 10. Defendants entered into possession of the Premises pursuant to the Lease and
27 Guaranty and continue to maintain possession of the Premises.
28 11. Pursuant to Article I, Sections 1.01 G, M and R; Article I, Sections 1.02 A and N;
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COMPLAINT FOR UNLAWFUL DETAINER
WH: 1013514.1
1 Article III, Sections 3.03, 3.04 and 3.05; and Article V, Sections 5.01 and 5.03 of the Lease,
2 Defendants are required to pay estimated Fixed Rent (“Rent”), Domestic Water (“Water”),
3 Operating Cost Charge (“OC Charges”), Real Estate Tax (“RE Tax”), Advertising Fee/Promotional
4 Fund (“Promo Fund”), and Trash Removal (“Trash”) as Additional Rent to Plaintiff for the
5 Premises.
6 12. Pursuant to Article I, Section 1.02 (A) of the Lease, all amounts required to be paid
7 by Defendants under the Lease other than Rent are deemed Additional Rent.
8 13. Pursuant to Article III, Section 3.01 of the Lease, Defendants agreed to pay Rent, in
9 advance, on the first day of each month.
10 14. At all relevant times, Plaintiff complied with all terms and conditions of the Lease,
11 except to the extent prevented by Defendants.
550 N. BRAND BOULEVARD, SUITE 1990
12 15. On August 1, 2023, Defendants breached the Lease and Guaranty and, since that
WESTON HERZOG LLP
GLENDALE, CALIFORNIA 91203
TELEPHONE: (818) 755-8555
13 time, Defendants have failed and refused, despite demand by Plaintiff, to pay Rent and Additional
ATTORNEYS
14 Rent past due and becoming due under the terms and conditions of the Lease.
15 16. On December 22, 2023, Defendants were served with a Notice of Default of their
16 obligations to pay Rent and Additional Rent to Plaintiff pursuant to the Lease and Guaranty. A true
17 and correct copy of the Notice of Default is attached hereto as Exhibit “C.”
18 17. Pursuant to Article XV, Section 15.12 of the Lease, providing for the service of
19 notices, the Notice of Default was served on Defendants at the address provided in the Lease via
20 UPS tracking no. 1Z57EF700223883345 and to the address provided in the Guaranty via UPS
21 tracking no. 1Z57EF700217806538. A true and correct copy of the proof of delivery of the Notice
22 of Default via UPS tracking no. 1Z57EF700223883345 and a true and correct copy of the return to
23 sender package for UPS tracking no. 1Z57EF700217806538 are attached hereto as Exhibit “D.”
24 18. On January 1, 2024, the period in the Notice of Default expired at the end of the
25 day. Defendants failed to comply with the requirements of the Notice of Default by that date.
26 19. On April 1, 2024, Defendant, TOYS N MOTIONS INC. was served with a Notice
27 to Pay Rent or Quit pursuant to California Code of Civil Procedure sections 1161 and 1161.1 (the
28 “Notice”). The Notice included an election of forfeiture. A true and correct copy of the Notice
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COMPLAINT FOR UNLAWFUL DETAINER
WH: 1013514.1
1 served on the Defendant is attached hereto as Exhibit “E.”
2 20. On April 3, 2024, Defendants, NADER ELFEKY and REHAB SAAD were served
3 with a Notice to Pay Rent or Quit pursuant to California Code of Civil Procedure sections 1161 and
4 1161.1 (the “Notice”). The Notice included an election of forfeiture. A true and correct copy of
5 the Notice served on the Defendants is attached hereto as Exhibit “E.”
6 21. Pursuant to Article XV, Section 15.12 of the Lease, providing for the service of
7 notices, the Notice was served on Defendants at the address provided in the Lease and Guaranty
8 via UPS tracking nos. 1Z57EF700210528299, 1Z57EF700200341900 and 1Z57EF700235898843.
9 True and correct copies of the proofs of delivery of the Notice via UPS are attached hereto as
10 Exhibit “F.”
11 22. On April 8, 2024, the period in the Notice expired at the end of the day. Defendants
550 N. BRAND BOULEVARD, SUITE 1990
12 failed to comply with the requirements of the Notice by that date.
WESTON HERZOG LLP
GLENDALE, CALIFORNIA 91203
TELEPHONE: (818) 755-8555
13 23. At the time the Notice was served, the total amount due from Defendants, and each
ATTORNEYS
14 of them, to Plaintiff was One Hundred Fifty-Four Thousand Five Hundred Fifty-Five and 70/100
15 Dollars ($154,555.70), broken down as follows: (i) pursuant to Article I, Section 1.01 G, and
16 Article III, Section 3.01 of the Lease, estimated Rent in the sum of One Hundred Sixteen Thousand
17 Six Hundred and 22/100 Dollars ($116,600.22) for the period of August 2023 through March 2024;
18 (ii) pursuant to Article I, Section 1.02 A and Article V, Section 5.01 of the Lease, estimated Water
19 as Additional Rent in the sum of One Hundred Eighty-Nine and 00/100 Dollars ($189.00) for the
20 period of December 2023 through March 2024; (iii) pursuant to Article I, Sections 1.01 M and 1.02
21 A and Article III, Section 3.04 of the Lease, estimated OC Charges as Additional Rent in the sum
22 of Twenty-Three Thousand Three Hundred Forty-Eight and 76/100 Dollars ($23,348.76) for the
23 period of December 2023 through March 2024; (iv) pursuant to Article I, Section 1.01 R, Article I,
24 Sections 1.02 A and N, and Article III, Section 3.03 of the Lease, estimated RE Tax as Additional
25 Rent in the sum Ten Thousand One Hundred Thirty-One and 60/00 Dollars ($10,131.60) for the
26 period of December 2023 through March 2024; (v) pursuant to Article I, Sections 1.01 A and 1.02
27 A and Article III, Section 3.05 of the Lease, estimated Promo Fund as Additional Rent in the sum
28 Three Thousand Two Hundred Seventy-Seven and 12/00 Dollars ($3,277.12) for the period of
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COMPLAINT FOR UNLAWFUL DETAINER
WH: 1013514.1
1 December 2023 through March 2024; and (vi) pursuant to Article I, Section 1.02 A and Article V,
2 Section 5.03 of the Lease, estimated Trash as Additional Rent in the sum of One Thousand Nine
3 and 00/100 Dollars ($1,009.00) for the period of December 2023 through March 2024.
4 24. Pursuant to the Notice and Code of Civil Procedure section 1161.1, Plaintiff has the
5 right to accept partial payments of Rent and Additional Rent after service of the Notice.
6 25. Article XV, Section 15.16 of the Lease, provides that, in the event that Plaintiff
7 incurs attorneys’ fees or other expenses as a result of any the breach of the Lease by Defendants,
8 the court shall award the prevailing party a reasonable sum of attorneys’ fees and costs.
9 26. Defendants have breached the Lease in the manner set forth above and Plaintiff has
10 been compelled to commence litigation to enforce its rights thereunder and has retained the law
11 firm of WESTON HERZOG LLP as its attorneys.
550 N. BRAND BOULEVARD, SUITE 1990
12 27. The Defendants’ monthly obligation to pay estimated Rent and Additional Rent
WESTON HERZOG LLP
GLENDALE, CALIFORNIA 91203
TELEPHONE: (818) 755-8555
13 was, and is, Thirty-Three Thousand Four and 13/10 Dollars ($33,004.13). Accordingly, the daily
ATTORNEYS
14 rental value of the Premises is One Thousand One Hundred and 13/100 Dollars ($1,100.13).
15 WHEREFORE, Plaintiff prays for judgment jointly and severally against the Defendants,
16 and each of them, as follows:
17 1. For possession of the Premises;
18 2. For forfeiture of the Lease;
19 3. For past due estimated Rent and Additional Rent in the amount of One Hundred
20 Fifty-Four Thousand Five Hundred Fifty-Five and 70/100 Dollars ($154,555.70), according to
21 proof at time of trial;
22 4. For reasonable attorneys’ fees in an amount according to proof at time of trial;
23 5. For damages at the rate stated in paragraph 27 from April 1, 2024, for each day that
24 Defendants remain in possession of the Premises through entry of judgment;
25 6. For interest as provided by law;
26 7. For costs of suit incurred herein; and
27 \\\
28 \\\
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COMPLAINT FOR UNLAWFUL DETAINER
WH: 1013514.1
1 8. For such other and further relief as the Court may deem just and proper.
2
3 Dated: April 30, 2024 WESTON HERZOG LLP
4
5
JONATHON J. HERZOG
6 Attorneys for Plaintiff,
LIVERMORE PREMIUM OUTLETS, LLC
7
8
9
10
11
550 N. BRAND BOULEVARD, SUITE 1990
12
WESTON HERZOG LLP
GLENDALE, CALIFORNIA 91203
TELEPHONE: (818) 755-8555
13
ATTORNEYS
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COMPLAINT FOR UNLAWFUL DETAINER
WH: 1013514.1
EXHIBIT “A”
LEASE
BY AND BETWEEN
LIVERMORE PREMIUM OUTLETS, LLC,
a Delaware limited liability company
Landlord
AND
TOYS N MOTION INC.,
a California corporation
Tenant
Dated: _____________________,
20_____
Premises in the San Francisco Premium Outlets
Town of Livermore
County of Alameda
State of California
Unit: 310
10/26/21
09/17/21
1
T. Shopping Center: That certain shopping center known as San Francisco
Premium Outlets, located in the Town of Livermore, County of Alameda, State of California, as
same may, from time to time, be reduced or increased by the deletion or addition by Landlord of
lands and/or buildings and other improvements.
U. Tenant Improvement Allowance: None.
V. Tenant's Trade Name: “Toys N Motion”.
W. Notice Address:
Landlord Livermore Premium Outlets, LLC
c/o Simon Property Group
225 West Washington Street
Indianapolis, Indiana 46204-3438
Attn: Premium Outlets
copy to: Simon Premium Outlets
60 Columbia Road
Building B, 3rd Floor
Morristown, NJ 07960
Attn: Lease Services
Tenant Toys N Motion Inc.
7500 Howell Mountain Road
Dublin, CA 94568
X. Remittance Address: Livermore Premium Outlets, LLC
2696 Solution Center
Chicago, IL 60677-2006
1.02 GENERAL DEFINITIONS: As used herein the following terms and phrases shall
have the meanings indicated:
A. Additional Rent: All amounts payable by Tenant to Landlord under this Lease
other than Fixed Rent, or pursuant to any other agreement entered into by or between Tenant,
Landlord and/or any third party with respect to Tenant's occupancy of the Demised Premises,
including but not limited to any agreement relating to billboards, garbage collection or signage.
B. Calendar Year: Shall mean any twelve-month period commencing on a
January 1, and the words calendar quarter shall mean any three-month period beginning on either a
January 1, an April 1, a July 1 or an October 1.
C. Common Areas: All areas, spaces and improvements to the Shopping Center
which Landlord makes available from time to time for the common use and benefit of the tenants and
occupants of the Shopping Center, including, without limitation, parking areas, roads, walkways,
promenades, sidewalks, open and covered courts and malls, if any, landscaped and planted areas,
community rooms, if any, the Shopping Center office, if any, public rest rooms, if any, and those
portions of utility and sewer lines and systems and fire protection and sprinkler alarm systems serving
the common use and benefit of the tenants and occupants of the Shopping Center.
D. Common Area Costs: All those costs and expenses incurred by Landlord
for the maintenance, policing, securing, repair, replacement, administration, insurance,
environmental monitoring, operation and management of the Shopping Center. Tenant will pay a
fixed, annual contribution toward Common Area Costs (the “OC Charge”) as described in Articles
1.01 (M) and 3.04.
E. Event of Default: Any of the events set forth in Section 13.01 as an Event of
Default.
4
F. Floor Space: The floor area stated in square feet bounded by the exterior
faces of the exterior walls, or the exterior or Common Areas face of any wall between a premises
and any portion of the Common Areas, or the center line of any wall between two occupants. With
respect to any individual premises, Floor Space shall include, without limitation, corridors, alleys,
passageways and all other areas if the same are for the exclusive use of such premises and shall
include the aggregate floor area of all levels or stories of such premises including any basement
and mezzanine levels and shall also include the floor area contained in any recessed entrances, but
excluding any roof except such portion thereof (other than cooling towers, mechanical rooms and
chimneys, if any) as is permanently enclosed and no deduction or exclusion shall be made from
Floor Space otherwise computed by reason of stairs, elevators, escalators, interior partitions,
columns or other interior construction or equipment. With respect to the Shopping Center, Floor
Space shall include all (and only such) Floor Space of premises in the Shopping Center demised
to retail or commercial tenants or available for retail or commercial tenancy, as subject to change
from time to time, and shall not include any kiosks, carts or Retail Merchandising Units
(“RMU’s”), any non-permanent facilities or Shopping Center management office facilities, if any.
G. Gross Sales: The dollar aggregate of: (a) the actual sales price of all goods
and merchandise sold, leased or licensed and the charges for all services performed by Tenant or
otherwise from all business conducted at or from the Demised Premises, whether made for cash, by
check, credit or otherwise, without reserve or deduction for inability or failure to collect the same,
including, without limitation, sales and services (i) where the orders therefor originate at or are
accepted at or from the Demised Premises, whether delivery or performance thereof is made at or
from the Demised Premises or any other place, it being understood that all sales made and orders
received at or from the Demised Premises shall be deemed to have been made and completed therein
even though the orders are fulfilled elsewhere or the payments of account are transferred to some
other office for collection, and all orders which result from solicitation off the Demised Premises but
which are conducted by personnel operating from or reporting to or under the control or supervision
of any person at the Demised Premises shall be deemed part of Gross Sales, (ii) pursuant to mail,
telephone, telegraph, catalogue, facsimile, internet, electronic, video and computer orders, and
orders by means of other technology-based systems whether now existing or hereafter developed,
and other orders received, placed or filled at or from the Demised Premises, and (iii) by means of
mechanical or other vending devices; and (b) all moneys or other things of value received by Tenant
from its operations at the Demised Premises (which are not excluded from Gross Sales by the next
succeeding sentence) including all finance charges, cost of gift or merchandise certificates and all
deposits not refunded to customers. Gross Sales shall not include (u) cash refunds for merchandise
returned to Tenant at the Demised Premises, the selling price of which was previously included in
Gross Sales (but in no event to exceed the amount of such cash refund), (v) any merchandise returned
for credit to shippers, jobbers, wholesalers or manufacturers, (w) any sums received in settlement of
claims for loss or damage to merchandise, (x) the exchange of merchandise between stores of Tenant
where such exchange is made solely for the convenient operation of Tenant's business and neither for
the purpose of depriving Landlord of the benefits of a sale which would otherwise be made at or from
the Demised Premises nor for the purpose of consummating a sale which has been theretofore made
at or from the Demised Premises, (y) sales of fixtures which are not part of Tenant's stock in trade
and not sold in the regular course of Tenant's business, or (z) the amount of any federal, state, county,
city or local sales tax, luxury tax excise tax or charge imposed on sales (including any tax or fee
imposed under any Declaration or other structure to which the Shopping Center may be subject) if
the tax is added to the selling price and separately stated and actually paid to the taxing authority by
Tenant; and Tenant agrees to pay all such applicable taxes to the taxing authority. Notwithstanding
the preceding sentence, no franchise or capital stock tax and no income or similar tax based upon
income, profits or Gross Sales shall be deducted from Gross Sales in any event whatsoever. Each
charge or sale upon installment or credit or layaway, so called, shall be treated as a sale for the full
price in the month during which such charge or sale shall be made, irrespective of the time when
Tenant shall receive payment from its customer. Each lease or rental or license of merchandise to
customers shall be treated as a sale in the month in which the lease, rental or license is made for a
price equal to the total rent or license fee payable. For purposes of this definition the term Tenant
shall include any of Tenant's subtenants, concessionaires, and licensees.
H. Hazardous Materials: As used in this Lease, "Hazardous Material(s)" shall
mean any hazardous, toxic or radioactive substance, material, matter or waste which is or becomes
regulated by any federal, state or local law, ordinance, order, rule, regulation, code or any other
governmental restriction or requirement, and shall include asbestos, petroleum products and the
terms "Hazardous Substance" and "Hazardous Waste" as defined in the Comprehensive
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Environmental Response, Compensation and Liability Act ("CERCLA"), as amended, 42 U.S.C.
9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), as amended, 42 U.S.C.
6901 et seq.
I. Landlord: The owner for the time being, of the interest of Landlord under this
Lease as owner of the fee of the Demised Premises or as lessee under any ground lease or underlying
lease of premises including the Demised Premises, so that in the event of any sale or transfer of the
fee of the Demised Premises (other than a sale with a leaseback to the grantor) or any assignment of
Landlord's interest under such ground lease or underlying lease, the grantor, transferor or assignor, as
the case may be, shall be and hereby is entirely relieved and freed of all obligations of Landlord under
this Lease accruing after such sale, transfer or assignment, and the grantee, transferee or assignee, as
the case may be, shall be deemed to have assumed and agreed to perform and observe all of the
obligations of Landlord under this Lease during the period it is the owner of the interest of Landlord
under this Lease but subject, however, to any provisions of this Lease limiting Landlord's liability.
J. Mortgage: Any mortgage or deed of trust, and the word mortgagee shall mean
the holder of any mortgage or the beneficiary of any deed of trust.
K. Percentage Rent: The amount for any period computed in accordance with the
provisions of Section 3.02.
L. Person: A natural person, a partnership, a corporation and any other form of
business or legal association or entity.
M. Price Index: The Consumer Price Index for Urban Wage Earners and Clerical
Workers--U.S. City Average issued by the Bureau of Labor Statistics of the United States Department
of Labor or any successor index. If at any time said Consumer Price Index is no longer published,
then the term “Price Index” shall mean an index selected by Landlord comparable to said Consumer
Price Index.
N. Real Estate Taxes: As used in this Lease the term "Real Estate Taxes" shall
mean and include all property taxes, both real and personal, any taxes based on the gross receipts
of Landlord related to the Shopping Center regardless of how captioned or titled, public and
governmental charges and assessments, payments in lieu of taxes (so-called “PILOT” payments)
and all other taxes which Landlord is obligated to pay with respect to the development of the
Shopping Center, including all extraordinary or special assessments or assessments against any of
Landlord's personal property now or hereafter located in the Shopping Center, all costs and
expenses including, but not limited to consulting, appraisal and attorneys' fees incurred by
Landlord in researching, reviewing, evaluating, contesting, appealing or negotiating with public
authorities (Landlord having the sole authority to conduct such a contest or enter into such
negotiations) as to any of the same and all sewer, water and other utility taxes and impositions, but
shall not include taxes on Tenant's machinery, equipment, inventory or other personal property or
assets of Tenant, Tenant agreeing to pay all taxes upon or attributable to such excluded property
without apportionment. Real Estate Taxes shall not include interest and penalties due on
delinquent Real Estate Taxes, but shall include interest on Real Estate Taxes withheld by virtue of
Landlord making partial payment under protest in the event such partial payment is permitted in
connection with a tax appeal proceeding.
Tenant's proportionate share of any governmental tax or charge (other than income
tax) levied, assessed, or imposed on account of the payment by Tenant or receipt by Landlord, or
based in whole or in part upon, the rents in this Lease reserved or upon the Shopping Center or the
value thereof shall be included in Real Estate Taxes and paid by Tenant including any new direct
or indirect tax or surcharge against the Shopping Center, the parking areas, or the number of
parking spaces in the Shopping Center or any new direct or indirect tax or surcharge in addition to
or by way of substitution for any existing tax or assessment which Landlord becomes obligated to
pay with respect to the Shopping Center.
If the land under the Shopping Center is a part of a larger parcel of land for
assessment purposes (the "Larger Parcel"), the taxes and assessments allocable to the land in the
Shopping Center for the purpose of determining Real Estate Taxes under this Section shall be
deemed a fractional portion of the taxes and assessments levied against the Larger Parcel, the
6
numerator of which is the acreage in the Shopping Center and the denominator of which is the
acreage in the Larger Parcel.
O. Rent: The Fixed Rent plus the Percentage Rent and Additional Rent.
Tenant’s obligations accruing during the Term, including without limitation, its obligation to pay
Rent, shall survive the expiration or earlier termination of this Lease.
P. Requirements: All laws, statutes, ordinances (including, but not limited to,
building codes and zoning regulations and ordinances), orders, rules, regulations and requirements of
(1) all federal, state, county and municipal governments, and the appropriate agencies, officers,
departments, boards and commissions thereof, and (2) the board of fire underwriters and/or the fire
insurance rating organization or similar organization performing the same or similar functions,
whether now or hereafter in force, applicable to the Shopping Center or any part thereof and/or the
Demised Premises or the use or manner of use of the Shopping Center or any part thereof and/or the
Demised Premises (including laws pertaining to merchandise labeling) or the sidewalks and curbs
adjacent thereto.
Q. Term: The Initial Term and any extension of the Term agreed to by the
parties or exercised pursuant to an Option to Extend, but in any event the Term shall end on any
date when this Lease is sooner terminated by agreement or by operation of law.
ARTICLE II
DEMISE AND CONSTRUCTION
2.01 DEMISE. Upon and subject to the terms and conditions of this Lease, Landlord
hereby leases to Tenant, and Tenant hereby hires from Landlord, the Demised Premises for the Term.
Landlord further reserves the right to change the unit designation of the Demised Premises.
Notwithstanding the foregoing, Landlord reserves exclusively to itself and Tenant shall have no right
in and to (a) the use of the exterior faces of all perimeter walls, (b) the use of the roof, (c) the use of
the land, improvements and space below the bottom of the lower floor slabs of the Demised Premises
and above the interior surface of the ceiling of the Demised Premises (d) the use of the improvements
and space above the highest ceiling of the Demised Premises, and (e) the air rights above Tenant's
store.
2.02 CONSTRUCTION. A. In those instances where Landlord has agreed to do work in
the Demised Premises prior to Tenant’s occupancy (e.g., in new construction or where Landlord is
re-demising a space) Landlord shall construct and complete the Demised Premises to the extent
required to substantially comply with the “Landlord’s Work” requirements of Exhibit “A”, attached
hereto (“Landlord’s Work”). Otherwise, Tenant accepts the Demised Premises in “as-is” condition.
B. Tenant shall construct any initial interior improvements to the Demised
Premises (“Tenant’s Work”) in accordance with plans and specifications which have been submitted
to, and as approved by, Landlord, and in accordance with the “Tenant’s Work” provisions of Exhibit
“A”. Tenant’s Work shall be performed in a good and workmanlike manner using quality materials
at Tenant’s sole cost and expense. In any instance where the Shopping Center is designed to meet
LEED standards, Tenant shall comply with such standards in connection with Tenant’s Work and in
any subsequent alterations or improvements made to the Demised Premises performed by or on behalf
of Tenant. In any jurisdiction where the use of union labor is required or is necessary, in Landlord’s
sole discretio
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1 Jonathon J. Herzog, Bar No. 162339 jherzog@westzog.com 2 WESTON HERZOG LLP 550 N. Brand Boulevard, Suite 1990 3 Glendale, California 91203 4 Telephone: (818) 755-8555 Facsimile: (818) 755-8542 5 Attorneys for Plaintiff, 6 LIVERMORE PREMIUM OUTLETS, LLC 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF ALAMEDA 10 OAKLAND - RCD COURTHOUSE 11 LIVERMORE PREMIUM OUTLETS, Case No.: LLC, 550 N. BRAND BOULEVARD, SUITE 1990 12 COMPLAINT FOR UNLAWFUL DETAINER WESTON HERZOG LLP GLENDALE, CALIFORNIA 91203 Plaintiff, TELEPHONE: (818) 755-8555 13 v. ATTORNEYS 14 TOYS N MOTION INC.; NADER 15 ELFEKY; REHAB SAAD; AND DOES 1 TO 10, INCLUSIVE, 16 Defendants. 17 18 19 Plaintiff, LIVERMORE PREMIUM OUTLETS, LLC, alleges as follows: 20 1. At all times mentioned herein, Plaintiff, LIVERMORE PREMIUM OUTLETS, 21 LLC was and still is a Delaware limited liability company qualified to do and doing business in the 22 State of California, County of Alameda. 23 2. At all times mentioned herein, Plaintiff was and is the owner of those certain 24 premises commonly known as the San Francisco Premium Outlets, located 2774 Livermore Outlets 25 Drive, Unit 310. Livermore, California 94551 (the “Premises”). 26 3. Plaintiff is informed and believes, and thereon alleges, that Defendant, TOYS N 27 MOTION INC. was and is a California corporation with its principal place of business in the City 28 of Livermore, County of Alameda, State of California. -1- COMPLAINT FOR UNLAWFUL DETAINER WH: 1013514.1 1 4. Plaintiff is informed and believes, and thereon alleges, the Defendants, NADER 2 ELFEKY and REHAB SAAD are individuals over the age of 18 and are residents of the City of 3 Dublin, State of California. 4 5. At all times mentioned herein, Defendants, and each of them, were and still are 5 doing business as Toys N Motion in the City of Livermore, County of Alameda, State of 6 California. 7 6. The true names and capacities, whether individual, corporate or associate, or 8 otherwise, of the Defendants named herein as DOES 1 through 10, inclusive, are unknown to 9 Plaintiff, who therefore sues said Defendants by such fictitious names pursuant to Code of Civil 10 Procedure §474, and Plaintiff will amend this complaint to show their true names and capacities 11 when the same have been ascertained. Plaintiff is informed and believes, and based upon such 550 N. BRAND BOULEVARD, SUITE 1990 12 information and belief, alleges that all Defendants sued herein as DOES are in some manner WESTON HERZOG LLP GLENDALE, CALIFORNIA 91203 TELEPHONE: (818) 755-8555 13 responsible for the acts herein alleged. ATTORNEYS 14 7. At all times herein mentioned, each of the Defendants, including the Defendants 15 named as DOE herein, was the agent and/or employee of each of the remaining Defendants and in 16 doing the things mentioned herein was acting within the scope of such agency and/or employment. 17 Each of the Defendants claims some possessory or other interest in the Premises. 18 8. On December 7, 2021, at Livermore, California, Plaintiff and Defendant, TOYS N 19 MOTION INC. entered into a written lease for the Premises whose term commenced December 1, 20 2021 and was to continue the last day of the tenth (10th) Lease Year (the “Lease”). A true and 21 correct copy of the Lease is attached hereto as Exhibit “A.” 22 9. On or about, December 7, 2021, to induce Plaintiff to enter into the Lease, 23 Defendants, NADER ELFEKY and REHAB SAAD signed an absolute and unconditional 24 Guaranty to perform all covenants and obligations of the tenant pursuant to the Lease. A true and 25 correct copy of the Guaranty is attached hereto as Exhibit “B.” 26 10. Defendants entered into possession of the Premises pursuant to the Lease and 27 Guaranty and continue to maintain possession of the Premises. 28 11. Pursuant to Article I, Sections 1.01 G, M and R; Article I, Sections 1.02 A and N; -2- COMPLAINT FOR UNLAWFUL DETAINER WH: 1013514.1 1 Article III, Sections 3.03, 3.04 and 3.05; and Article V, Sections 5.01 and 5.03 of the Lease, 2 Defendants are required to pay estimated Fixed Rent (“Rent”), Domestic Water (“Water”), 3 Operating Cost Charge (“OC Charges”), Real Estate Tax (“RE Tax”), Advertising Fee/Promotional 4 Fund (“Promo Fund”), and Trash Removal (“Trash”) as Additional Rent to Plaintiff for the 5 Premises. 6 12. Pursuant to Article I, Section 1.02 (A) of the Lease, all amounts required to be paid 7 by Defendants under the Lease other than Rent are deemed Additional Rent. 8 13. Pursuant to Article III, Section 3.01 of the Lease, Defendants agreed to pay Rent, in 9 advance, on the first day of each month. 10 14. At all relevant times, Plaintiff complied with all terms and conditions of the Lease, 11 except to the extent prevented by Defendants. 550 N. BRAND BOULEVARD, SUITE 1990 12 15. On August 1, 2023, Defendants breached the Lease and Guaranty and, since that WESTON HERZOG LLP GLENDALE, CALIFORNIA 91203 TELEPHONE: (818) 755-8555 13 time, Defendants have failed and refused, despite demand by Plaintiff, to pay Rent and Additional ATTORNEYS 14 Rent past due and becoming due under the terms and conditions of the Lease. 15 16. On December 22, 2023, Defendants were served with a Notice of Default of their 16 obligations to pay Rent and Additional Rent to Plaintiff pursuant to the Lease and Guaranty. A true 17 and correct copy of the Notice of Default is attached hereto as Exhibit “C.” 18 17. Pursuant to Article XV, Section 15.12 of the Lease, providing for the service of 19 notices, the Notice of Default was served on Defendants at the address provided in the Lease via 20 UPS tracking no. 1Z57EF700223883345 and to the address provided in the Guaranty via UPS 21 tracking no. 1Z57EF700217806538. A true and correct copy of the proof of delivery of the Notice 22 of Default via UPS tracking no. 1Z57EF700223883345 and a true and correct copy of the return to 23 sender package for UPS tracking no. 1Z57EF700217806538 are attached hereto as Exhibit “D.” 24 18. On January 1, 2024, the period in the Notice of Default expired at the end of the 25 day. Defendants failed to comply with the requirements of the Notice of Default by that date. 26 19. On April 1, 2024, Defendant, TOYS N MOTIONS INC. was served with a Notice 27 to Pay Rent or Quit pursuant to California Code of Civil Procedure sections 1161 and 1161.1 (the 28 “Notice”). The Notice included an election of forfeiture. A true and correct copy of the Notice -3- COMPLAINT FOR UNLAWFUL DETAINER WH: 1013514.1 1 served on the Defendant is attached hereto as Exhibit “E.” 2 20. On April 3, 2024, Defendants, NADER ELFEKY and REHAB SAAD were served 3 with a Notice to Pay Rent or Quit pursuant to California Code of Civil Procedure sections 1161 and 4 1161.1 (the “Notice”). The Notice included an election of forfeiture. A true and correct copy of 5 the Notice served on the Defendants is attached hereto as Exhibit “E.” 6 21. Pursuant to Article XV, Section 15.12 of the Lease, providing for the service of 7 notices, the Notice was served on Defendants at the address provided in the Lease and Guaranty 8 via UPS tracking nos. 1Z57EF700210528299, 1Z57EF700200341900 and 1Z57EF700235898843. 9 True and correct copies of the proofs of delivery of the Notice via UPS are attached hereto as 10 Exhibit “F.” 11 22. On April 8, 2024, the period in the Notice expired at the end of the day. Defendants 550 N. BRAND BOULEVARD, SUITE 1990 12 failed to comply with the requirements of the Notice by that date. WESTON HERZOG LLP GLENDALE, CALIFORNIA 91203 TELEPHONE: (818) 755-8555 13 23. At the time the Notice was served, the total amount due from Defendants, and each ATTORNEYS 14 of them, to Plaintiff was One Hundred Fifty-Four Thousand Five Hundred Fifty-Five and 70/100 15 Dollars ($154,555.70), broken down as follows: (i) pursuant to Article I, Section 1.01 G, and 16 Article III, Section 3.01 of the Lease, estimated Rent in the sum of One Hundred Sixteen Thousand 17 Six Hundred and 22/100 Dollars ($116,600.22) for the period of August 2023 through March 2024; 18 (ii) pursuant to Article I, Section 1.02 A and Article V, Section 5.01 of the Lease, estimated Water 19 as Additional Rent in the sum of One Hundred Eighty-Nine and 00/100 Dollars ($189.00) for the 20 period of December 2023 through March 2024; (iii) pursuant to Article I, Sections 1.01 M and 1.02 21 A and Article III, Section 3.04 of the Lease, estimated OC Charges as Additional Rent in the sum 22 of Twenty-Three Thousand Three Hundred Forty-Eight and 76/100 Dollars ($23,348.76) for the 23 period of December 2023 through March 2024; (iv) pursuant to Article I, Section 1.01 R, Article I, 24 Sections 1.02 A and N, and Article III, Section 3.03 of the Lease, estimated RE Tax as Additional 25 Rent in the sum Ten Thousand One Hundred Thirty-One and 60/00 Dollars ($10,131.60) for the 26 period of December 2023 through March 2024; (v) pursuant to Article I, Sections 1.01 A and 1.02 27 A and Article III, Section 3.05 of the Lease, estimated Promo Fund as Additional Rent in the sum 28 Three Thousand Two Hundred Seventy-Seven and 12/00 Dollars ($3,277.12) for the period of -4- COMPLAINT FOR UNLAWFUL DETAINER WH: 1013514.1 1 December 2023 through March 2024; and (vi) pursuant to Article I, Section 1.02 A and Article V, 2 Section 5.03 of the Lease, estimated Trash as Additional Rent in the sum of One Thousand Nine 3 and 00/100 Dollars ($1,009.00) for the period of December 2023 through March 2024. 4 24. Pursuant to the Notice and Code of Civil Procedure section 1161.1, Plaintiff has the 5 right to accept partial payments of Rent and Additional Rent after service of the Notice. 6 25. Article XV, Section 15.16 of the Lease, provides that, in the event that Plaintiff 7 incurs attorneys’ fees or other expenses as a result of any the breach of the Lease by Defendants, 8 the court shall award the prevailing party a reasonable sum of attorneys’ fees and costs. 9 26. Defendants have breached the Lease in the manner set forth above and Plaintiff has 10 been compelled to commence litigation to enforce its rights thereunder and has retained the law 11 firm of WESTON HERZOG LLP as its attorneys. 550 N. BRAND BOULEVARD, SUITE 1990 12 27. The Defendants’ monthly obligation to pay estimated Rent and Additional Rent WESTON HERZOG LLP GLENDALE, CALIFORNIA 91203 TELEPHONE: (818) 755-8555 13 was, and is, Thirty-Three Thousand Four and 13/10 Dollars ($33,004.13). Accordingly, the daily ATTORNEYS 14 rental value of the Premises is One Thousand One Hundred and 13/100 Dollars ($1,100.13). 15 WHEREFORE, Plaintiff prays for judgment jointly and severally against the Defendants, 16 and each of them, as follows: 17 1. For possession of the Premises; 18 2. For forfeiture of the Lease; 19 3. For past due estimated Rent and Additional Rent in the amount of One Hundred 20 Fifty-Four Thousand Five Hundred Fifty-Five and 70/100 Dollars ($154,555.70), according to 21 proof at time of trial; 22 4. For reasonable attorneys’ fees in an amount according to proof at time of trial; 23 5. For damages at the rate stated in paragraph 27 from April 1, 2024, for each day that 24 Defendants remain in possession of the Premises through entry of judgment; 25 6. For interest as provided by law; 26 7. For costs of suit incurred herein; and 27 \\\ 28 \\\ -5- COMPLAINT FOR UNLAWFUL DETAINER WH: 1013514.1 1 8. For such other and further relief as the Court may deem just and proper. 2 3 Dated: April 30, 2024 WESTON HERZOG LLP 4 5 JONATHON J. HERZOG 6 Attorneys for Plaintiff, LIVERMORE PREMIUM OUTLETS, LLC 7 8 9 10 11 550 N. BRAND BOULEVARD, SUITE 1990 12 WESTON HERZOG LLP GLENDALE, CALIFORNIA 91203 TELEPHONE: (818) 755-8555 13 ATTORNEYS 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- COMPLAINT FOR UNLAWFUL DETAINER WH: 1013514.1 EXHIBIT “A” LEASE BY AND BETWEEN LIVERMORE PREMIUM OUTLETS, LLC, a Delaware limited liability company Landlord AND TOYS N MOTION INC., a California corporation Tenant Dated: _____________________, 20_____ Premises in the San Francisco Premium Outlets Town of Livermore County of Alameda State of California Unit: 310 10/26/21 09/17/21 1 T. Shopping Center: That certain shopping center known as San Francisco Premium Outlets, located in the Town of Livermore, County of Alameda, State of California, as same may, from time to time, be reduced or increased by the deletion or addition by Landlord of lands and/or buildings and other improvements. U. Tenant Improvement Allowance: None. V. Tenant's Trade Name: “Toys N Motion”. W. Notice Address: Landlord Livermore Premium Outlets, LLC c/o Simon Property Group 225 West Washington Street Indianapolis, Indiana 46204-3438 Attn: Premium Outlets copy to: Simon Premium Outlets 60 Columbia Road Building B, 3rd Floor Morristown, NJ 07960 Attn: Lease Services Tenant Toys N Motion Inc. 7500 Howell Mountain Road Dublin, CA 94568 X. Remittance Address: Livermore Premium Outlets, LLC 2696 Solution Center Chicago, IL 60677-2006 1.02 GENERAL DEFINITIONS: As used herein the following terms and phrases shall have the meanings indicated: A. Additional Rent: All amounts payable by Tenant to Landlord under this Lease other than Fixed Rent, or pursuant to any other agreement entered into by or between Tenant, Landlord and/or any third party with respect to Tenant's occupancy of the Demised Premises, including but not limited to any agreement relating to billboards, garbage collection or signage. B. Calendar Year: Shall mean any twelve-month period commencing on a January 1, and the words calendar quarter shall mean any three-month period beginning on either a January 1, an April 1, a July 1 or an October 1. C. Common Areas: All areas, spaces and improvements to the Shopping Center which Landlord makes available from time to time for the common use and benefit of the tenants and occupants of the Shopping Center, including, without limitation, parking areas, roads, walkways, promenades, sidewalks, open and covered courts and malls, if any, landscaped and planted areas, community rooms, if any, the Shopping Center office, if any, public rest rooms, if any, and those portions of utility and sewer lines and systems and fire protection and sprinkler alarm systems serving the common use and benefit of the tenants and occupants of the Shopping Center. D. Common Area Costs: All those costs and expenses incurred by Landlord for the maintenance, policing, securing, repair, replacement, administration, insurance, environmental monitoring, operation and management of the Shopping Center. Tenant will pay a fixed, annual contribution toward Common Area Costs (the “OC Charge”) as described in Articles 1.01 (M) and 3.04. E. Event of Default: Any of the events set forth in Section 13.01 as an Event of Default. 4 F. Floor Space: The floor area stated in square feet bounded by the exterior faces of the exterior walls, or the exterior or Common Areas face of any wall between a premises and any portion of the Common Areas, or the center line of any wall between two occupants. With respect to any individual premises, Floor Space shall include, without limitation, corridors, alleys, passageways and all other areas if the same are for the exclusive use of such premises and shall include the aggregate floor area of all levels or stories of such premises including any basement and mezzanine levels and shall also include the floor area contained in any recessed entrances, but excluding any roof except such portion thereof (other than cooling towers, mechanical rooms and chimneys, if any) as is permanently enclosed and no deduction or exclusion shall be made from Floor Space otherwise computed by reason of stairs, elevators, escalators, interior partitions, columns or other interior construction or equipment. With respect to the Shopping Center, Floor Space shall include all (and only such) Floor Space of premises in the Shopping Center demised to retail or commercial tenants or available for retail or commercial tenancy, as subject to change from time to time, and shall not include any kiosks, carts or Retail Merchandising Units (“RMU’s”), any non-permanent facilities or Shopping Center management office facilities, if any. G. Gross Sales: The dollar aggregate of: (a) the actual sales price of all goods and merchandise sold, leased or licensed and the charges for all services performed by Tenant or otherwise from all business conducted at or from the Demised Premises, whether made for cash, by check, credit or otherwise, without reserve or deduction for inability or failure to collect the same, including, without limitation, sales and services (i) where the orders therefor originate at or are accepted at or from the Demised Premises, whether delivery or performance thereof is made at or from the Demised Premises or any other place, it being understood that all sales made and orders received at or from the Demised Premises shall be deemed to have been made and completed therein even though the orders are fulfilled elsewhere or the payments of account are transferred to some other office for collection, and all orders which result from solicitation off the Demised Premises but which are conducted by personnel operating from or reporting to or under the control or supervision of any person at the Demised Premises shall be deemed part of Gross Sales, (ii) pursuant to mail, telephone, telegraph, catalogue, facsimile, internet, electronic, video and computer orders, and orders by means of other technology-based systems whether now existing or hereafter developed, and other orders received, placed or filled at or from the Demised Premises, and (iii) by means of mechanical or other vending devices; and (b) all moneys or other things of value received by Tenant from its operations at the Demised Premises (which are not excluded from Gross Sales by the next succeeding sentence) including all finance charges, cost of gift or merchandise certificates and all deposits not refunded to customers. Gross Sales shall not include (u) cash refunds for merchandise returned to Tenant at the Demised Premises, the selling price of which was previously included in Gross Sales (but in no event to exceed the amount of such cash refund), (v) any merchandise returned for credit to shippers, jobbers, wholesalers or manufacturers, (w) any sums received in settlement of claims for loss or damage to merchandise, (x) the exchange of merchandise between stores of Tenant where such exchange is made solely for the convenient operation of Tenant's business and neither for the purpose of depriving Landlord of the benefits of a sale which would otherwise be made at or from the Demised Premises nor for the purpose of consummating a sale which has been theretofore made at or from the Demised Premises, (y) sales of fixtures which are not part of Tenant's stock in trade and not sold in the regular course of Tenant's business, or (z) the amount of any federal, state, county, city or local sales tax, luxury tax excise tax or charge imposed on sales (including any tax or fee imposed under any Declaration or other structure to which the Shopping Center may be subject) if the tax is added to the selling price and separately stated and actually paid to the taxing authority by Tenant; and Tenant agrees to pay all such applicable taxes to the taxing authority. Notwithstanding the preceding sentence, no franchise or capital stock tax and no income or similar tax based upon income, profits or Gross Sales shall be deducted from Gross Sales in any event whatsoever. Each charge or sale upon installment or credit or layaway, so called, shall be treated as a sale for the full price in the month during which such charge or sale shall be made, irrespective of the time when Tenant shall receive payment from its customer. Each lease or rental or license of merchandise to customers shall be treated as a sale in the month in which the lease, rental or license is made for a price equal to the total rent or license fee payable. For purposes of this definition the term Tenant shall include any of Tenant's subtenants, concessionaires, and licensees. H. Hazardous Materials: As used in this Lease, "Hazardous Material(s)" shall mean any hazardous, toxic or radioactive substance, material, matter or waste which is or becomes regulated by any federal, state or local law, ordinance, order, rule, regulation, code or any other governmental restriction or requirement, and shall include asbestos, petroleum products and the terms "Hazardous Substance" and "Hazardous Waste" as defined in the Comprehensive 5 Environmental Response, Compensation and Liability Act ("CERCLA"), as amended, 42 U.S.C. 9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), as amended, 42 U.S.C. 6901 et seq. I. Landlord: The owner for the time being, of the interest of Landlord under this Lease as owner of the fee of the Demised Premises or as lessee under any ground lease or underlying lease of premises including the Demised Premises, so that in the event of any sale or transfer of the fee of the Demised Premises (other than a sale with a leaseback to the grantor) or any assignment of Landlord's interest under such ground lease or underlying lease, the grantor, transferor or assignor, as the case may be, shall be and hereby is entirely relieved and freed of all obligations of Landlord under this Lease accruing after such sale, transfer or assignment, and the grantee, transferee or assignee, as the case may be, shall be deemed to have assumed and agreed to perform and observe all of the obligations of Landlord under this Lease during the period it is the owner of the interest of Landlord under this Lease but subject, however, to any provisions of this Lease limiting Landlord's liability. J. Mortgage: Any mortgage or deed of trust, and the word mortgagee shall mean the holder of any mortgage or the beneficiary of any deed of trust. K. Percentage Rent: The amount for any period computed in accordance with the provisions of Section 3.02. L. Person: A natural person, a partnership, a corporation and any other form of business or legal association or entity. M. Price Index: The Consumer Price Index for Urban Wage Earners and Clerical Workers--U.S. City Average issued by the Bureau of Labor Statistics of the United States Department of Labor or any successor index. If at any time said Consumer Price Index is no longer published, then the term “Price Index” shall mean an index selected by Landlord comparable to said Consumer Price Index. N. Real Estate Taxes: As used in this Lease the term "Real Estate Taxes" shall mean and include all property taxes, both real and personal, any taxes based on the gross receipts of Landlord related to the Shopping Center regardless of how captioned or titled, public and governmental charges and assessments, payments in lieu of taxes (so-called “PILOT” payments) and all other taxes which Landlord is obligated to pay with respect to the development of the Shopping Center, including all extraordinary or special assessments or assessments against any of Landlord's personal property now or hereafter located in the Shopping Center, all costs and expenses including, but not limited to consulting, appraisal and attorneys' fees incurred by Landlord in researching, reviewing, evaluating, contesting, appealing or negotiating with public authorities (Landlord having the sole authority to conduct such a contest or enter into such negotiations) as to any of the same and all sewer, water and other utility taxes and impositions, but shall not include taxes on Tenant's machinery, equipment, inventory or other personal property or assets of Tenant, Tenant agreeing to pay all taxes upon or attributable to such excluded property without apportionment. Real Estate Taxes shall not include interest and penalties due on delinquent Real Estate Taxes, but shall include interest on Real Estate Taxes withheld by virtue of Landlord making partial payment under protest in the event such partial payment is permitted in connection with a tax appeal proceeding. Tenant's proportionate share of any governmental tax or charge (other than income tax) levied, assessed, or imposed on account of the payment by Tenant or receipt by Landlord, or based in whole or in part upon, the rents in this Lease reserved or upon the Shopping Center or the value thereof shall be included in Real Estate Taxes and paid by Tenant including any new direct or indirect tax or surcharge against the Shopping Center, the parking areas, or the number of parking spaces in the Shopping Center or any new direct or indirect tax or surcharge in addition to or by way of substitution for any existing tax or assessment which Landlord becomes obligated to pay with respect to the Shopping Center. If the land under the Shopping Center is a part of a larger parcel of land for assessment purposes (the "Larger Parcel"), the taxes and assessments allocable to the land in the Shopping Center for the purpose of determining Real Estate Taxes under this Section shall be deemed a fractional portion of the taxes and assessments levied against the Larger Parcel, the 6 numerator of which is the acreage in the Shopping Center and the denominator of which is the acreage in the Larger Parcel. O. Rent: The Fixed Rent plus the Percentage Rent and Additional Rent. Tenant’s obligations accruing during the Term, including without limitation, its obligation to pay Rent, shall survive the expiration or earlier termination of this Lease. P. Requirements: All laws, statutes, ordinances (including, but not limited to, building codes and zoning regulations and ordinances), orders, rules, regulations and requirements of (1) all federal, state, county and municipal governments, and the appropriate agencies, officers, departments, boards and commissions thereof, and (2) the board of fire underwriters and/or the fire insurance rating organization or similar organization performing the same or similar functions, whether now or hereafter in force, applicable to the Shopping Center or any part thereof and/or the Demised Premises or the use or manner of use of the Shopping Center or any part thereof and/or the Demised Premises (including laws pertaining to merchandise labeling) or the sidewalks and curbs adjacent thereto. Q. Term: The Initial Term and any extension of the Term agreed to by the parties or exercised pursuant to an Option to Extend, but in any event the Term shall end on any date when this Lease is sooner terminated by agreement or by operation of law. ARTICLE II DEMISE AND CONSTRUCTION 2.01 DEMISE. Upon and subject to the terms and conditions of this Lease, Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord, the Demised Premises for the Term. Landlord further reserves the right to change the unit designation of the Demised Premises. Notwithstanding the foregoing, Landlord reserves exclusively to itself and Tenant shall have no right in and to (a) the use of the exterior faces of all perimeter walls, (b) the use of the roof, (c) the use of the land, improvements and space below the bottom of the lower floor slabs of the Demised Premises and above the interior surface of the ceiling of the Demised Premises (d) the use of the improvements and space above the highest ceiling of the Demised Premises, and (e) the air rights above Tenant's store. 2.02 CONSTRUCTION. A. In those instances where Landlord has agreed to do work in the Demised Premises prior to Tenant’s occupancy (e.g., in new construction or where Landlord is re-demising a space) Landlord shall construct and complete the Demised Premises to the extent required to substantially comply with the “Landlord’s Work” requirements of Exhibit “A”, attached hereto (“Landlord’s Work”). Otherwise, Tenant accepts the Demised Premises in “as-is” condition. B. Tenant shall construct any initial interior improvements to the Demised Premises (“Tenant’s Work”) in accordance with plans and specifications which have been submitted to, and as approved by, Landlord, and in accordance with the “Tenant’s Work” provisions of Exhibit “A”. Tenant’s Work shall be performed in a good and workmanlike manner using quality materials at Tenant’s sole cost and expense. In any instance where the Shopping Center is designed to meet LEED standards, Tenant shall comply with such standards in connection with Tenant’s Work and in any subsequent alterations or improvements made to the Demised Premises performed by or on behalf of Tenant. In any jurisdiction where the use of union labor is required or is necessary, in Landlord’s sole discretio