EXHIBIT 10.120
LEASE AGREEMENT WITH XXXXXXXX XXXXXXX
MASTER LEASE
THIS MASTER LEASE (the "Lease") is made as of the day of August, 1995,
between Fantastic Foods International, Inc., a California corporation
("Lessor"), and American Charities Underwriters Inc., a Colorado corporation
("Lessee").
WHEREAS, Lessee is engaged in the business of manufacturing and storage of
pizza; and
WHEREAS, the Lessee desires to rent from Lessor those certain premises set
forth in Item 3 of Exhibit "A" attached hereto, together with certain underlying
real property (the "Plant"); and
NOW, THEREFORE, in consideration of the mutual benefits to be derived from
the covenants contained herein, the Lessee and Lessor agree as follows:
1. PREMISES
Lessor hereby leases to Lessee and Lessee hereby rents from Lessor
those certain premises set forth in Item 3 of Exhibit "A" attached
hereto, which, together with the underlying real property, is herein
called the "Plant". Except as may otherwise be specifically provided
herein, Lessor shall accept the Plant in its existing condition as of
the date hereof.
2. TENANCY
This Lease shall commence on the date set forth in Item 4 of Exhibit
"A", and continue thereafter for a term of one (1) year, unless until
terminated pursuant to the terms hereof, or until sooner terminated for
default or breach of the terms, covenants or conditions hereinafter
provided.
3. USE
The Plant shall be occupied and used by Lessor solely for the purpose
of conducting therein the business or profession stated in Item 7 of
Exhibit "A", and for no other business or purpose. Lessor shall comply
with all applicable laws and governmental requirements pertaining to
its use of the Plant and shall not generate, handle, store or dispose
of hazardous or toxic materials within the Plant without the prior
written consent of Lessor.
4. RENT
Lessee shall pay to Lessor monthly rent in the amount stated in Item 5
of Exhibit "A" in advance on the first day of each and every calendar
month without notice or offset, the first monthly payment to be made
concurrently with the execution hereof. All rental and other payments
shall be made to Lessor at the address stated in Item 8 of Exhibit "A",
or such other place as Lessor shall from time to time designate in
writing. Rent for the first partial month shall be prorated on the
basis of the number of days in such month, and thereafter shall be
payable on the first day of each month. All payments hereunder shall be
paid in lawful money of the United States.
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5. INSPECTION
Lessee shall permit Lessor and its agents to enter into and upon the
Plant at all reasonable times for the purpose of inspecting same,
cleaning windows and performing other janitorial services, or for the
purpose of maintaining the Plant in which the Plant is situated, or for
the purposes of making repairs, alterations or additions to any other
portion of the Plant, including the erection of scaffolding, props, or
other mechanical devices, or for the purpose of posting Notices of
Non-Responsibility for alterations, additions, or repairs, without any
abatement or rebate of rent to Lessee or damages for any loss of
occupation or quiet enjoyment of the Plant thereby occasioned. Lessor
and its agents may, during the last thirty (30) days of the term of
this Lease, at reasonable hours, enter upon the Plant and exhibit same
to prospective Lessees.
6. RULES AND REGULATIONS
The rules and regulations attached hereto as Exhibit "B", as well as
such rules and regulations as may be hereafter adopted by Lessor for
the safety, care and cleanliness of the Plant and the preservation of
good order thereon, are hereby expressly made a part hereof, and Lessor
agrees to obey all such rules and regulations.
7. SECURITY DEPOSIT
Lessee has deposited with Lessor the sum, if any, stated in Item 6 of
Exhibit "A", to be held by Lessor as security for the full and
faithful performance of every Lease term, covenant and condition to be
performed by Lessee. If Lessee defaults with respect to any term,
covenant or condition of this Lease, including but not limited to the
provisions relating to the payment of rent, Lessor may (but shall not
be required to) use, apply or retain all or any part of this security
deposit for the payment of any rent or other sum in default, or for
the payment of any other amount (including but not limited to the cost
of repairing and/or restoring the Plant during or at the expiration of
the term of this Lease) which Lessor may spend or become obligated to
spend by reason of Lessee's default or to compensate Lessor for any
other loss or damage which Lessor may suffer by reason of Lessee's
default to the full extent permitted by law. If any portion of said
deposit is so used or applied, Lessee shall within five (5) days after
written demand therefor deposit cash with Lessor in an amount
sufficient to restore the security deposit to its original amount.
Lessee's failure to do so shall be a material breach of this Lease.
Lessor shall not be required to keep this security deposit separate
from its general funds, and Lessee shall not be entitled to interest
on such deposit. If Lessee shall fully and faithfully perform every
term, covenant and condition of this Lease to be performed by it, the
security deposit or any balance thereof shall be returned to Lessee
promptly following the expiration of the Lease term, provided that
Lessor may retain the security deposit until such time as any amount
due from Lessor has been determined and paid in full. Should Lessor
sell its interest in the Plant during the term hereof and if Lessor
deposits with the purchaser thereof the then unappropriated funds
deposited by Lessee, thereupon Lessee shall be discharged from any
further liability with respect to such deposit.
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8. ALTERATIONS
Lessee shall make no alterations, additions or improvements to the
Plant without the prior written consent of Lessor, and Lessor may
impose, as a condition to such consent, such requirements as Lessor in
its sole discretion may deem reasonable or desirable, including but not
limited to a requirement that all work be covered by a lien and
completion bond satisfactory to Lessor and requirements as to the
manner, time and contractor or contractors by which such work shall be
done. Any request for Lessor's consent shall be made in writing and
shall contain architectural plans describing such work in detail
reasonably satisfactory to Lessor. Failure of Lessor to respond to such
request within thirty (30) days shall be deemed a denial of such
request. Unless Lessor otherwise agrees in writing, all such
alterations, additions or improvements affixed or built into the Plant
(but excluding moveable trade fixtures and furniture) shall became the
property of Lessor as provided in Paragraph 11 below, and shall be
surrendered with the Plant, as a part thereof, at the end of this Lease
term, except that Lessor may, by written notice to Lessee given at
least twenty (20) days prior to the end of this Lease term, require
Lessee to remove all or any alterations, decorations, additions,
improvements and the like installed by Lessee, and to repair the Plant,
or at Lessee's option to pay all costs relating to any damage to the
Plant arising from such removal.
9. SURRENDER OF PLANT; REMOVAL OF PROPERTY
Upon the expiration of the term of this Lease, or upon any earlier
termination of this Lease, Lessee shall quit and surrender possession
of the Plant to Lessor in as good order, condition and repair as when
received or as hereafter may be improved by Lessor or Lessee,
reasonable wear and tear and repairs which are Lessee's obligation
excepted, and shall, without expense to Lessor, remove or cause to be
removed from the Plant all debris and rubbish, all furniture,
equipment, business and trade fixtures, freestanding cabinet work and
other articles of personal property owned by Lessee or installed or
placed by Lessee at its expense in the Plant, and all similar articles
of any other persons claiming under Lessee unless Lessee exercises its
option to have any subleases or subtenancies assigned to it. Lessee
shall repair all damage to the Plant resulting from such removal, which
repair shall include the patching and filling of holes and repair of
structural damage. In the event that Lessee shall fail to comply with
the provisions of this Paragraph, Lessor may make such repairs and the
cost thereof shall be additional rent payable by the Lessee upon
demand. If requested by Lessor, Lessee shall execute, acknowledge and
deliver to Lessor an instrument in writing releasing and quitclaiming
to Lessor all right, title and interest of Lessee in and to the Plant
by reason of this Lease or otherwise.
10. OPTION TO BUY PLANT
Lessor grants to Lessee, or its assigns, the option to purchase the
Plant, together with the building and the personal property and
equipment appurtenant thereto, which are the subject of this Lease,
and all additions and improvements to them, if any, that may be made
during the term of this Lease, upon and subject to the following terms
and conditions:
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A. The purchase price shall be:
(i) The sum of Six Hundred Sixty Thousand Dollars ($660,000)
(the "Option Price").
(ii) Plus such amount, if any, as may be added to the Option
Price, as provided below, in the event of inflationary
changes occurring in the currency of the Unites States, or
in the event of the occurrence of any other factor or
factors that shall result in what commonly is known as
"currency inflation," and which, at the time of the exercise
of the option, shall have caused or resulted in inflated
market values and inflated rentals of real property in
Pueblo, Colorado.
B. The option shall be exercised between the date hereof and the
expiration date of this Lease, by the Lessee or its assigns
serving upon the Lessee by registered mail ninety (90) days'
written notice of its or their election to exercise the option.
C. If, after the mailing of such notice of election to exercise the
option, the Lessor shall be of the opinion that a state of
currency inflation, as defined in subsection"(b)" of paragraph
"1" exists, the Lessor, within ten (10) days after the mailing of
such notice of election, shall serve upon the Lessee or its
assigns by registered mail a notice to such effect, which notice
shall further state the amount by which the Lessor claims that
the Option Price should be increased by reason of such inflation.
D. Within ten (10) days after the service of the Lessor's notice,
the Lessee or its assigns shall, by notice in writing served on
the Lessee by registered mail, assent to, or dissent from, the
Lessor's claim for an increase in the Option Price by reason of
such inflation. If the Lessee or its assigns shall so assent to
the Lessor's claim, then, and in such event, the Option Price
shall be augmented in accordance with the Lessor's claim. If,
however, the Lessee or its assigns shall dissent from the
Lessor's claim, the option shall not thereby be avoided, but the
dispute between the Lessor and the Lessee or its assigns as to
such claim shall be submitted to arbitration, for the purpose of
determining the following issues:
(i) Whether, at the time of exercise of the option, a condition
or state of inflation, as defined above, existed;
(ii) Whether, as the result of such inflation, market values and
rentals of real property in Pueblo, Colorado have been
inflated; and
(iii)By what sum, if any, the Option Price should be increased
by reason of the existence of the inflation referred to in
both subparagraphs "(a)" and "(b)".
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E. In the notice of dissent above referred to, the Lessee or its
assigns shall name its or their arbitrator. Within five (5) days
thereafter, the Lessor shall, by written notice served by
registered mail upon the Lessee or its assigns, designate its
arbitrator, and the two (2) arbitrators so chosen shall, within
five (5) days thereafter, appoint in writing a third arbitrator.
If the two (2) arbitrators shall be unable to agree upon such
third arbitrator within the period of five (5) days, any party to
this agreement may thereafter make application to the Court of
Pueblo County, or to any judge of that court, for the appointment
of such third arbitrator. A decision of a majority of the
arbitrators on the three (3) issues above set out shall be
binding upon the parties to this agreement; and the parties shall
bear equally the expenses and cost of such arbitration.
F. If the Lessor shall fail to serve a notice of claim of inflation,
or notice of the designation of its arbitrator, as provided
above, then, and in either or both of such events, the Lessee or
its assigns shall be entitled to purchase the Plant for the
Option Price.
If the Lessee or its assigns shall fail to serve a notice of dissent,
as provided above, then is such event, the Option Price shall be
augmented by the amount of the increase claimed by the Lessor in its
claim for an increase by reason of inflation.
11. SUBLETTING OR ASSIGNMENT
Lessee shall not assign this Lease, or any interest therein, or sublet
the Plant or any part thereof, or allow any other person (the agents
and servants of Lessor excepted) to occupy or use the Plant, or any
portion thereof, without the prior written consent of Lessor. Any such
assignment or subletting without Lessor's consent shall be void and
shall, at the option of Lessor, terminate this Lease. This Lease shall
not, nor shall any interest therein, be assignable as to the interest
of Lessee by operation of law without the written consent of Lessor.
12. NOTICES
Any notice, election, demand, consent, approval or other communication
to be given or other document to be delivered by either party to the
other hereunder shall be in writing and shall be delivered by personal
service or telegram, telex, telecopier or other electronic facsimile
transmission, or by any "overnight" or "one-day" express mailing
service, or by certified or registered mail, prepaid and return receipt
requested, to the other party at the address set forth in Item 8 of
Exhibit "A". Either party may from time to time, by written notice to
the other, served in the manner herein provided, designate a different
address. If any notice or other document is sent by certified or
registered mail as above, the same shall be deemed served or delivered
two (2) business days after the mailing. All other notices shall be
deemed given when received. If more than one Lessor is named under this
Lease, service of any notice upon any one of said Lessors shall be
deemed as service upon all of them.
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13. ATTORNEYS' FEES
Should either party institute legal proceedings against the other
arising out of this Lease, the prevailing party shall be entitled to
recover reasonable attorneys' fees and costs, to be fixed by the court
in said action.
14. REMEDIES
The waiver by Lessee of any breach of any term, covenant or condition
herein contained shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other
term, covenant or condition herein contained. The acceptance of rent
hereunder shall not be construed to be a waiver of any breach by Lessee
of any term, covenant or condition of this Lease. No payment by Lessee
of a lesser amount than the rent and other sums required by this Lease
shall be deemed to be other than a partial payment on account of the
earliest due sums, notwithstanding any check endorsement or letter to
the contrary. It is understood and agreed that the remedies herein
given to Lessee and those awarded by statutes of the State of
California shall be cumulative, and the exercise of any one remedy by
Lessee shall not be to the exclusion of any other remedy.
15. LATE PAYMENTS
A. Any installment of rent due under this Lease or any other sum not
paid to Lessor within five (5) days of the date when due shall
bear interest at the maximum legal rate permitted by law from the
date due until the same shall have been fully paid. The payment
of such interest shall not excuse or cure any default by Lessor
under this Lease.
X. Xxxxxx hereby acknowledges that the late payment by Lessee to
Lessor of rent and other sums due hereunder will cause Lessee to
incur costs not contemplated by this Lease, the exact amount of
which will be extremely difficult to ascertain. Such costs may
include, but are not limited to, administrative, processing and
accounting charges, and late charges which may be imposed on
Lessor by the terms of any other sum due from Lessee shall not be
received by Lessor or Lessor's designee within five (5) days
after the date due, then Lessee shall pay to Lessor, in addition
to the interest provided above, a late charge in the amount of
One Hundred Dollars ($100.00). The parties agree that such late
charge represents a fair and reasonable estimate of the cost
Lessor will incur by reason of late payment by Lessee. Acceptance
of such late charge by Lessor shall in no event constitute a
waiver of Lessee's default with respect to such overdue amount,
nor prevent Lessor from exercising any of its other rights and
remedies.
16. LESSOR'S INSURANCE
Lessee, at its sole cost and expense, shall provide the insurance
described in Exhibit "C" attached hereto.
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17. LESSOR'S INDEMNITY
A. Lessee shall defend, indemnify and hold harmless Lessor, its
agents, employees, and any and all affiliates of Lessor,
including without limitation, any corporations or other entities
controlling, controlled by or under common control with Lessor,
from and against any and all claims or liabilities arising from
Lessee's use or occupancy of the Plant, the Plant or the Common
Facilities (as hereinafter defined) or the conduct of its
business or from any activity, work, or thing done, permitted or
suffered by Lessee in or about the Plant and the Plant or Common
Facilities arising from any breach or default in the performance
of any obligation on Lessee's part to be performed hereunder, or
arising from any act or negligence of Lessee, or of its agents,
employees, visitors, patrons, guests, invitees or licensees,
including vendors servicing Lessee, and for and against all
costs, attorneys' fees, expenses and liabilities incurred or any
actions or proceedings brought thereon. In case Lessor, its
agents or affiliates shall be made a party to any litigation
commenced by or against Lessor, then Lessee shall protect and
hold Lessor harmless and shall pay all costs, expenses and
reasonable attorneys' fees, legal expenses, expenses of discovery
proceedings, travel and fees for expert witnesses incurred or
paid by Lessor in connection with such litigation. Lessor may at
its option, require Lessee to assume Lessor's defense in any
action covered by this Paragraph through counsel satisfactory to
Lessor.
B. The term "Common Facilities" shall mean all areas within the
exterior boundaries of the Plant or appurtenant thereto which are
not now or hereafter held for exclusive use by persons entitled
to occupy space in the Plant, and other areas and improvements
provided by Lessor for the common use of Lessee and Lessee's and
its respective employees and invitees, including, without
limiting the generality of the foregoing, parking areas,
driveways, truckways, delivery passages, loading docks,
sidewalks, ramps, landscaped and painted areas, exterior
stairways, hallways and interior stairwells not located within
the Plant, common entrances and lobbies, elevators, bus stops,
retaining walls and restrooms not located within the Plant,
lighting fixtures, building and/or project identification signs,
irrigation systems and controllers, drains and sewers.
18. LESSOR'S NON-LIABILITY
A. Lessee, as a material party of the consideration to Lessor,
hereby assumes all risk of damage to property or injury to
person, in, upon or about the Plant from any cause whatsoever
other than ultimately determined to be Lessor's sole negligence
or willful misconduct and for any damage to the Plant resulting
from any negligence or willful misconduct of any employee, agent,
visitor or licensee of Lessor.
X. Xxxxxx shall not be liable to Lessee, and Lessee hereby waives
all claims against Lessor for any injury or damage to any person
or property in or about the premises of the Plant or from any
cause whatsoever, other than ultimately determined to be Lessor's
sole negligence or willful misconduct. Specifically, Lessor or
its agents or employees shall not be liable for any damage to
property entrusted to Lessee's employees in the Plant, nor for
loss of or damage to any property by theft or otherwise, nor for
any injury or damage to persons or property or loss or
interruption of business or loss of income resulting from, but
not limited to, the following causes, unless ultimately
determined to be caused by or due to the sole negligence or
willful misconduct of Lessor, its agents or employees: fire,
explosion, falling plaster, steam, gas, electricity, water or
rain which may leak or flow from or into any part of the Plant or
from the breakage, leakage, obstruction or other defects of the
pipes, sprinklers, wires, appliances or plumbing or air
conditioning or electrical works therein, whether such damage or
injury results from conditions arising in the Plant or in other
portions of the Plant. Neither Lessor nor its agents shall be
liable for interference with the light or other incorporeal
hereditament, nor shall Lessor be liable for any latent defect of
the Plant. Lessee shall give prompt notice to Lessor in case of
fire or accidents in the Plant and of defects therein or in the
fixtures or equipment.
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C. Lessee understands that Lessor will not carry insurance of any
kind on Lessee's furniture or furnishings, fixtures or equipment,
and that Lessor shall not be obligated to repair any damage
thereto or replace the same. Lessor shall have the right to
change the name, number or designation of the Plant in which the
Plant is located without notice or liability to Lessee.
19. MISCELLANEOUS
A. SUBSEQUENT EVENTS. Lessor and Lessee each agree to notify the
other party if, subsequent to the date of this Agreement, either
party incurs obligations which could compromise their efforts and
obligations under this Agreement.
B. AMENDMENT. This Agreement may be amended or modified at any time
and in any manner only by an instrument in writing executed by
the parties hereto.
C. FURTHER ACTIONS AND ASSURANCES. At any time and from time to
time, each party agrees, at its or their expense, to take actions
and to execute and deliver documents a may be reasonably
necessary to effectuate the purposes of this Agreement.
D. WAIVER. Any failure of any party to this Agreement to comply with
any of its obligations, agreements, or conditions hereunder may
be waived in writing by the party to whom such compliance is
owed. The failure of any party to this Agreement to enforce at
any time any of the provisions of this Agreement shall in no way
be construed to be a waiver of any such provision or a waiver of
the right of such party thereafter to enforce each and every such
provision. No waiver of any breach of or non-compliance with this
Agreement shall be held to be a waiver of any other or subsequent
breach or non-compliance.
E. ASSIGNMENT. Neither this Agreement nor any right created by it
shall be assignable by Lessor or Lessee without the prior written
consent of the other party.
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F. Notices. Any notice or other communication required or permitted
by this Agreement must be in writing and shall be deemed to be
properly given when delivered in person to an officer of the
other party, when deposited in the United States mails for
transmittal by certified or registered mail, postage prepaid, or
when deposited with a public telegraph company for transmittal,
or when sent by facsimile transmission charges prepared, provided
that the communication is addressed:
(i) In the case of Lessee:
American Charities Underwriters Inc.
0000 X. Xxxx
Xxxxxx, Xxxxxxxx 00000
(ii) In the case of Lessor:
Fantastic Foods International Inc.
0000 0xx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
or to such other person or address designated by Lessee or Lessor
to receive notice.
G. Headings. The Paragraph and subparagraph headings in this
agreement are inserted for convenience only and shall not affect
in any way the meaning or interpretation of this Agreement.
H. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
I. Governing Law. This Agreement was negotiated and is being
contracted for in the State of California, and shall be governed
by the laws of the State of California, notwithstanding any
conflict-of-law provision to the contrary.
J. Binding Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective
heirs, administrators, executors, successors, and assigns.
K. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto and supersedes any and all prior
agreements, arrangements, or understandings between the parties
relating to the subject matter of this Agreement. No oral
understandings, statements, promises, or inducements contrary to
the terms of this Agreement exist. No representations,
warranties, covenants, or conditions, express or implied, other
than as set forth herein, have been made by any party.
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L. Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full
force and effect.
M. Facsimile Counterparts. A facsimile, telecopy, or other
reproduction of this Agreement may be executed by one or more
parties hereto and such executed copy may be delivered by
facsimile of similar instantaneous electronic transmission device
pursuant to which the signature of or on behalf of such party can
be seen, and such execution and delivery shall be considered
valid, binding and effective for all purposes. At the request of
any party hereto, all parties agree to execute an original of
this Agreement as well as any facsimile, telecopy or other
reproduction hereof.
N. Time is of the Essence. Time is of the essence of this Agreement
and of each and every provision hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Lease consisting
of the foregoing Paragraphs 1 through 18, Exhibits "A" through "C" and, if any
Rider pages and/or Addendum to Lease which follow, as of the day and year first
hereinabove set forth.
"Lessor" "Lessee"
FANTASTIC FOODS INTERNATIONAL INC. AMERICAN CHARITIES UNDERWRITERS INC.
By: By:/s/ Xxxxxxxx X. XxXxxxx
------------------------------- ------------------------------------
Name: Xxxxxxxx X. XxXxxxx
Title:
By: By:
------------------------------- ------------------------------------
Name:
Title:
[FFI\AGR:TEDLEASE.AGR]
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EXHIBIT "A"
THE PLANT
In the event of any conflict, inconsistency or ambiguity created by or
between this Exhibit "A" and the Lease to which it is attached, which Lessee
acknowledges it has read in full, the terms and conditions of the Lease shall
govern.
1. Lessee: Xxxxxxxx X. XxXxxxx
dba: American Charities Underwriters Inc.
2. Address including Bldg Name/Ste No.: 1745 N. Erie, Pueblo, Colorado
3. Rentable Area: 28,700 +/- square feet
4. Term commerce: January 1, 1996
5. Rental: Four Thousand Dollars and no/100 ($4,000.00) per month
6. Security Deposit: Zero Dollars ($0)
7. Permitted Use: Manufacturing pizzas and storage of same
8. Address for Payments and Notices:
Lessor Lessee
Fantastic Foods International Inc. American Charities
0 Xxxx Xxxxx, Xxxxx 000 Underwriters Inc.
Xxxxxx, Xxxxxxxxxx 00000 0000 X. Xxxx
Xxxxxx, Xxxxxxxx 00000
[FFI\AGR:TEDLEASE.AGR]
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EXHIBIT "B"
RULES AND REGULATIONS
The following Rules and Regulations shall be n effect at the Building. Lessor
reserves the right to adopt reasonable nondiscriminatory modification and
additions at any time. In the case of any conflict between these regulations and
the Lease, the Lease shall be controlling.
1. Except with the prior written consent of Lessor, Lessee shall not sell, or
permit the retail sale of, newspapers, magazines, periodicals, or theater
tickets, in or from the Plant, nor shall Lessee carry on, or permit or
allow any employee or other person to carry on, the business of
stenography, typewriting or any similar business in or from the Plant for
the service or accommodation of occupants of any other portion of the
Plant. Lessee shall not allow the Plant to be utilized for any
manufacturing of any kind, or the business of a public xxxxxx shop, beauty
parlor, or a manicuring and chiropodist business, or any business other
than that specifically provided for the Lease.
2. The sidewalks, halls, passages, elevators, stairways, and other common
areas shall not be obstructed by Lessee or use by it for storage or for any
purpose other than for ingress to and egress from the Plant. The halls,
passages, entrances, elevators, stairways, balconies and roof are not for
the use of the general public, and Lessor shall in all cases retain the
right to control and prevent access to those areas of all persons whose
presence, in the judgment of Lessor, shall be prejudicial to the safety,
character, reputation and interests of the Plant and its Lessees. Nothing
contained in this Lease shall be construed to prevent access to persons
with whom Lessee normally deals only for the purpose of conducting its
business on the Plant (such as Lessees' customers, office suppliers and
equipment vendors and the like) unless those persons are engaged in illegal
activities. Neither Lessee nor any employee or contractor of Lessee shall
go upon the roof of the Plant without the prior written consent of Lessor.
3. The sashes, sash doors, windows, glass lights, solar film and/or screen,
and any lights or skylights that reflect or admit light into the halls or
other places of the Office Building shall not be covered or obstructed. The
toilet rooms, water and wash closets and other water apparatus shall not be
used for any purpose other than that for which they were constructed, and
no foreign substance of any kind shall be thrown in those facilities, and
the expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by Lessee.
4. No sign, advertisement or notice visible from the exterior of the Plant
shall be inscribed, painted or affixed by Lessee on any part of the Plant
without the prior written consent of Lessor. If Lessor shall have given its
consent at any time, whether before or after the execution of this Lease,
that consent shall in no way operate as a waiver or release of any of the
provisions of this Lease, and shall be deemed to relate only to the
particular sign, advertisement or notice so consented to by Lessor and
shall not be construed as dispensing with the necessity of obtaining the
specific written consent of Lessor with respect to any subsequent sign,
advertisement, or notice. If Lessor, by a notice in writing to Lessee,
shall object to any curtain, blind, tinting, shade or screen attached to,
or hung in, or used in connection with, any window or door of the Plant,
the use of the curtain, blind, tinting, shade or screen shall be
immediately discontinued by Lessee. No awnings shall be permitted on any
part of the Plant.
[FFI\AGR:TEDLEASE.AGR]
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5. Lessee shall not do or permit anything to be done in the Plant, or bring or
keep anything in the Plant, which shall in any way increase the rate of
fire insurance of the Plant, or on the property kept in the Plant, or
obstruct or interfere with the rights of other Lessees, or in any way
injure or annoy them, or conflict with the regulations of the Fire
Department or the fire laws, or with any insurance policy upon the Plant,
or any portion of the Plant or its contents, or with any rules and
ordinances established by the Board of Health or other governmental
authority.
6. No safes, computers or other objects larger or heavier than the freight
elevators of the Plant are limited to carry shall be brought into or
installed in the Plant. Lessor shall have the right to prescribe and
approve of the weight and position of safes, computers or other large or
heavy objects which shall, if deemed necessary by Lessor, be placed on some
type of applicable platform prescribed by Lessor to distribute the weight.
8. Lessee shall not sweep or throw, or permit to be swept or thrown, from the
Plant any dirt or other substance into any of the corridors or halls or
elevators, or out of the doors or windows or stairways of the Plant, and
Lessee shall not use, keep or permit to be used or kept any foul or noxious
gas or substance in the Plant, or permit or suffer the Plant to be occupied
or use in a manner offensive or objectionable to Lessor or other occupants
of the Plant by reasons of noise, odors and/or vibrations, or interfere in
any way with other Lessees or those having business with other Lessees, nor
shall any animals or birds be kept by Lessee in or about the Plant. Smoking
or carrying lighted cigars or cigarettes in the elevators and restrooms of
the Plant is prohibited.
9. No cooking shall be done or permitted by Lessor on the Plant, except
pursuant to the normal use of a microwave oven and coffee maker for the
benefit of Lessee's employees and invitees, nor shall the Plant be used for
the storage of merchandise or for lodging.
10. Lessee shall not use or keep in the Plant any kerosene, gasoline, or
inflammable fluid or any other illuminating material, or use any method of
heating other than that supplied by Lessor.
11. If Lessee desires telephone or telegraph connections, Lessor will direct
electricians as to where and how the wires are to be introduced. No boring
or cutting for wires or otherwise shall be made without directions from
Lessor.
12. Upon the termination of its tenancy, Lessee shall deliver to Lessor all the
keys to offices, rooms and toilet rooms and all access cards which shall
have been furnished to Lessee or which Lessee shall have had made. In the
event of the loss of any keys or cards so furnished, Lessee shall pay
Lessor for those items.
13. Lessee shall not affix any floor covering to the floor of the Plant in any
manner except by a past, or other material which may easily be removed with
water, the use of cement or other similar adhesive materials being
expressly prohibited. The method of affixing any floor covering shall be
subject to approval by Lessor. The expense of repairing any damage
resulting from a violation of this rule shall be borne by Lessee.
[FFI\AGR:TEDLEASE.AGR]
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14. On Saturdays, Sundays and legal holidays, and on other days between the
hours of 6:00 p.m. and 8:00 a.m., access to the Plant, or to the halls,
corridors, elevators or stairways in the Plant, or to the Plant, may be
refused unless the person seeking access complies with any access control
system that Lessor may establish. Lessor shall in no case be liable for
damages for the admission to or exclusion from the Plant of any person whom
Lessor has the right to exclude under Rules 2 or 19 of this Exhibit. In
case of invasion, mob, riot, public excitement, or other commotion, or in
the event of any other situation reasonably requiring the evacuation of the
Plant, Lessor reserves the right at its election and without liability to
Lessee to prevent access to the Plant by closing the doors or otherwise for
the safety of Lessee and protection of property in the Plant.
15. Lessee shall see that the windows, transoms and doors of the Plant are
closed and securely locked before leaving the Plant and shall observe
strict care not to leave windows open, if applicable, when it rains. Lessee
shall exercise extraordinary care and caution that all water faucets or
water apparatus are entirely shut off before Lessee or Lessee's employees
leave the Plant, and that all electricity, gas or air shall likewise be
carefully shut off, so as to prevent waste or damage, and for any default
or carelessness Lessee shall make good all injuries sustained by other
Lessees or occupants of the Plant or Lessee.
16. Lessee shall not alter any lock or install a new or additional lock or any
bolt on any door of the Plant without the prior written consent of Lessor.
If Lessor gives its consent, Lessee shall in each case promptly furnish
Lessor with a key for any new or altered lock.
17. Lessee shall not install equipment, such as but not limited to electronic
tabulating or computer equipment, requiring electrical or air conditioning
service in excess of that to be provided by Lessor under the Lease.
18. Lessee shall furnish and utilize masonite or plastic floor mats so as to
minimize carpet damage resulting from the use of rollers on chairs.
19. Lessor shall have full and absolute authority to regulate or prohibit the
entrance to the Plant of any vendor, supplier, purveyor, petitioner,
proselytizer or other similar person. In the event any such person is a
guest or invitee of Lessee, Lessor shall notify Lessee in advance of each
desired entry, and Lessor shall authorize the person so designated to enter
the Plant, provided that in the sole and absolute discretionary judgment of
Lessor, such person will not be involved in general solicitation
activities, or the proselytizing, petitioning, or disturbance of other
Lessees or their customers or invitees, or engaged or likely to engage in
conduct which may in Lessor's opinion distract from the use of the Plant
for its intended purpose. Notwithstanding the foregoing, Lessor reserves
the absolute right and discretion to limit or prevent access to the Plant
by any food or beverage vendor, whether or not invited by Lessee, and
Lessor may condition such access upon the vendor's execution of an entry
permit agreement which may contain provisions for insurance coverage and/or
the payment of a fee to Lessor.
20. Lessor may from time to time grant Lessee individual and temporary
variances from these Rules, provided that any variance does not have a
material adverse effect on the use and enjoyment of the Plant by Lessee.
[FFI\AGR:TEDLEASE.AGR]
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EXHIBIT "C"
LESSEE'S INSURANCE
The following standards for Lessee's Insurance shall be in effect at the Plant.
Lessor reserves the right to adopt reasonable nondiscriminatory modifications
and additions to those standards. Lessee agrees to obtain and present evidence
to Lessor that it has fully complied with the insurance requirements.
1. Lessee shall, at its sole cost and expense, commencing on the date Lessee
is given access to the Plant for any purpose and during the entire Term,
procure, pay for and keep in full force and effect: (i) comprehensive
general liability insurance with respect to the Plant and the operations of
or on behalf of Lessee in, on or about the Plant, including but not limited
to personal injury, non-owned automobile, blanket contractual, independent
contractors, broad form property damage, fire legal liability, products
liability (if a product is sold from the Plant), liquor law liability (if
alcoholic beverages are sold, served or consumed within the Plant), and
cross liability and severability of interest clauses, which policy(ies)
shall be written on an "occurrence" basis and for not less than $1,000,000
with a $1,000,000 umbrella liability policy combined single limit (with a
$50,000 minimum limit on fire legal liability) per occurrence for bodily
injury, death, and property damage liability, or the current limit of
liability carried by Lessee, whichever is greater, and subject to such
increases in amounts as Lessor may determine from time to time; (ii)
workers' compensation insurance coverage as required by law, together with
employers' liability insurance coverage; (iii) with respect to
improvements, alterations, and the like required or permitted to be made by
Lessee under this Lease, builder's all-risk insurance, in amounts
satisfactory to Lessor; (iv) insurance against fire, vandalism, malicious
mischief and such other additional perils as may be included in a standard
"all risk" form in general use in Orange County, California, insuring
Lessee's leasehold improvements, trade fixtures, furnishings, equipment and
items of personal property of Lessee located in the Plant, in an amount
equal to not less than ninety percent (90%) of their actual replacement
cost (with replacement cost endorsement)l and (v) business interruption
insurance in amounts satisfactory to Lessor. In no event shall the limits
of any policy be considered as limiting the liability of Lessee under this
Lease.
2. All policies of insurance required to be carried by Lessee pursuant to this
Exhibit "C" shall be written by responsible insurance companies authorized
to do business in the State of California and Colorado, and with a Best's
policyholder rating of not less than "A" subject to final acceptance and
approval by Lessor. Any insurance required of Lessee may be furnished by
Lessee under any blanket policy carried by it or under a separate policy. A
true and exact copy of each paid up policy evidencing the insurance
(appropriately authenticated by the insurer) or a certificate of insurance,
certifying that the policy has been issued, provides the coverage required
by this Exhibit "C" and contains the required provisions, shall be
delivered to Lessor prior to the date Lessee is given the right of
possession of the Plant. Proper evidence of the renewal of any insurance
coverage shall also be delivered to Lessor not less than thirty (30) days
prior to the expiration of the coverage. Lessor may at any time, and from
time to time, inspect and/or copy any and all insurance policies required
by this Lease.
[FFI\AGR:TEDLEASE.AGR]
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3. Each policy evidencing insurance required to be carried by Lessee pursuant
to this Exhibit "C" shall contain the following provisions and/or clauses
satisfactory to Lessor: (i) provision that the policy and the coverage
provided shall be primary and that any coverage carried by Lessee shall be
noncontributory with respect to any policies carried by Lessee; (ii) a
provision including Lessee and any other parties in interest designated by
Lessor as an additional insured, except as to workers compensation
insurance; (iii) a waiver by the insurer of any right to subrogation
against Lessor, its agents, employees, contractors and representatives
which arises or might arise by reason of any payment under the policy or by
reason of any act or omission of Lessee, its agents, employees, contractors
or representatives; and (iv) a provision that the insurer will not cancel
or change the coverage provided by the policy without first giving Lessor
thirty (30) days prior written notice.
4. In the event that Lessee fails to procure, maintain and/or pay for, at the
times and for the durations specific in this Exhibit "C", any insurance
required by this Exhibit "C", or fails to carry insurance required by any
governmental authority, Lessor may at its election procure that insurance
and that insurance and pay the premiums, in which event Lessee shall repay
Lessor all sums paid by Lessor, together with interest at the maximum rate
permitted by law and any related costs or expenses incurred by Lessor
within ten (10) days following Lessor's written demand to Lessee.
[FFI\AGR:TEDLEASE.AGR]
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April 12, 1996
AMERICAN CHARITIES UNDERWRITERS
000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
RE: Lease Agreement between Fantastic Foods International ("Fantastic")
and American Charities Underwriters Inc. ("ACU") dated August 31, 1995
(the "Lease")
Gentlemen:
When countersigned in the space provided below, this letter (the "Agreement")
will serve as an addendum to the Lease and the option granted therein by
Fantastic, as Lessor, to ACU, as Lessee, to purchase the Building (as defined in
the Lease).
Subject to the following conditions, Xxxx Xxxxxxx'x XX Inc. ("Xxxx") and
Fantastic agree to the assumption by ACU of Nona's note to Ohio National Life
Insurance Company and the underlying First Trust Deed obligations of Xxxx
related to the Building (the "Ohio National Note"), and Fantastic agrees to
reduce the Purchase Price (as defined in the Lease) to $450,000, payable (a) by
ACU's assumption of the present balance due under the Ohio National Note of
approximately $240,000; and, (b) by the execution of a Second Trust Deed in
favor of Fantastic in the principal amount of $210,000. Such Second Trust Deed
to be payable from the net proceeds of any refinancing utilizing the Building,
but in any event no later than December 31, 1996.
This agreement is subject to:
1. Written confirmation that the assumption of the Ohio National
Note by ACU will effect a full release of Xxxx and Fantastic by
Ohio National Life Insurance Company, or their successor in
interest, as to the Ohio National Note; and,
2. ACU bringing current the monthly payments due under Ohio National
Note (such payments to be credited against the payments due to
Fantastic under the Lease; and
3. Written confirmation from the proposed new lender, addressed to
Fantastic, of the amount, terms and timing of ACU's proposed
refinancing of the Building.
If this correctly sets forth your understanding of the proposed revision of the
terms of the Lease, please execute and return a countersigned copy of this
Agreement to me before April 30, 1996.
This offer contained herein is not binding unless signed by all parties and,
even if fully executed, it will automatically terminate and be of no further
force or effect if not returned to me before April 30, 1996.
[NM\AGR:ACPUEBLD]-2
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Sincerely,
/s/ Xxxx X. Xxxx
----------------------------------------
Xxxx X. Xxxx
Chief Executive Officer
AGREED AND ACCEPTED
This ---------- day of April, 1996
AMERICAN CHARITIES UNDERWRITERS INC.
By:-------------------------------------
Name:
AGREED AND ACCEPTED
This ---------- day of April, 1996
FANTASTIC FOODS INTERNATIONAL INC.
By:-------------------------------------
Name:
[NM\AGR:ACPUEBLD]-2
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