SUBLEASE
1. PARTIES
This Sublease, dated April 25, 1997, is made between Xxxxxx Beverage
Company ("Sublessor") and U.S. Continental Packaging, Inc. ("Sublessee").
2. MASTER LEASE
Sublessor is the lessee under a written lease dated April 25, 1997, wherein
27 Railroad Partnership LP, a California Limited Partnership leased to
Sublessor the real property measuring approximately 66,700 square feet in
aggregate and situated at 0000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000,
as indicated on Exhibit A (the "Master Premises"). Said lease is herein
referred to as the "Master Lease" and is attached hereto as Exhibit B.
3. PREMISES
Sublessor hereby sublets to the Sublessee on the terms and conditions set
forth in this Sublease, a portion of the Master Premises measuring
approximately 10,000 square feet and being the area identified in red on
Exhibit A hereto (the "Premises"). It is recorded that the Master Premises
is the Facility contemplated in clause 3(a) of the Packaging Agreement
between the Sublessor and Sublessee dated April 14, 1997 (the "Packaging
Agreement").
4. TERM
The Term of this Sublease shall commence on the commencement date of the
Master Lease and continue for a period of twenty-four (24) months
thereafter (the "Term") unless sooner terminated in accordance with the
provisions of this Sublease. Possession of the Premises ("Possession")
shall be delivered to the Sublessee on the commencement of the Term. If,
for any reason, Sublessor does not deliver Possession to Sublessee on the
commencement of the Term, Sublessor shall not be subject to any liability
for such failure or delay.
Notwithstanding anything to the contrary contained or implied in this
sublease and, in particular, clause 4, the Sublessor shall have the right
at any time to terminate this Sublease on sixty (60) days written notice to
the Sublessee and which notice may be given by the Sublessor at any time,
in the event that the Premises are required for the Sublessor's products.
5. RENT
5.1 MINIMUM RENT. Sublessee shall pay to Sublessor as Minimum Rent, without
deduction, setoff, notice, or demand, at the Premises or at such other
place as Sublessor shall designate from time to time by notice to
Sublessee, a sum calculated by dividing the area of the Premises occupied
by the Sublessee by the total area of the Master Premises and by
multiplying the result by the monthly Rent for the Master Premises. The
monthly rent for the Master Premises shall
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include all additional costs and charges for which the Sublessor is liable
in terms of the Master Lease and which constitute additional rent and which
shall be taken into account for the purposes of determining the Minimum
Rent payable by the Sublessee to the Sublessor in terms hereof. In
determining the monthly rent for the Master Premises the rent waiver
contemplated in Clause 42 of the Master Lease shall not constitute a
reduction in the rent payable for the months in which it is deducted or
waived but shall be amortized over the entire term of the Master Lease
namely, eighty-nine (89) months. Consequently, in calculating the monthly
rent for the Master Premises for the purposes of this clause, such rental
shall be deemed to be reduced by $674 per month in consequence of the rent
waiver contemplated in Clause 42 of the Master Lease. Sublessee's
entitlement to a reduction in the Minimum Rent through its proportionate
share of the rent waiver calculated in accordance with the foregoing shall
be subject to Sublessee not defaulting in any of its obligations in terms
of this Sublease. For the first six (6) months of this sublease the Minimum
Rent calculated in terms of the above shall be increased by $700 per month.
The Minimum Rent shall be paid in advance on the first day of each month of
the Term. If the Term begins or ends on a day other than the first or last
day of a month, the rent for the partial month shall be prorated on a per
day basis.
5.2 OPERATING COSTS. As the Master Lease requires the Sublessor to pay to
Lessor certain expenses of operating the building and/or the project of
which the Premises are a part ("Operating Costs"), including but not
limited to taxes, utilities, and insurance, the Sublessee hereby agrees to
and shall pay to the Sublessor as additional rent its proportionate share
of all amounts payable by Sublessor for Operating Costs during the Term.
Such additional rent shall be payable as and when the Operating Costs are
payable by Sublessor to Lessor. As the Master Lease provides for payment by
Sublessor to Lessor of Operating Costs from month to month on the basis of
estimates thereof, as and when adjustments are made between estimated and
actual Operating Costs under the Master Lease, the obligations of Sublessee
hereunder shall be adjusted appropriately and if any such adjustment shall
occur after the expiration or earlier termination of the Term, then the
obligations of Sublessee under this Subsection 5.2 shall survive such
expiration or termination. Sublessor shall, upon request by Sublessee,
furnish Sublessee with copies of all statements submitted by Lessor of
actual or estimated Operating Costs during the Term.
6. USE OF PREMISES
The Premises shall be used and occupied only for warehousing, packaging
and distribution of consumer products and corporate offices, and for no
other use or purpose.
7. ASSIGNMENT AND SUBLETTING
Sublessee shall not assign the Sublease or further sublet all or any part
of the Premises without the prior written consent of Sublessor (and the
consent of Lessor, if such is required under the terms of the Master
Lease).
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8. OTHER PROVISIONS OF SUBLEASE
All applicable terms and conditions of the Master Lease and any subsequent
amendment or change in the provisions thereof, are incorporated into and
made a part of this Sublease as if Sublessor were the lessor thereunder and
Sublessee the lessee thereunder, and the Premises the Master Premises.
Sublessee assumes and agrees to perform the lessee's obligations under the
Master Lease during the Term to the extent that such obligations are
applicable to the Premises, except that the obligation to pay rent to the
Lessor under the Master Lease shall be considered performed by Sublessee
for purposes of this Sublease to the extent and in the amount rent is paid
to Sublessor in accordance with Section 5 of this Sublease. Neither
Sublessor nor Sublessee shall commit or suffer any act or omission that
will violate any of the provisions of the Master Lease. Sublessor shall
exercise due diligence in attempting to cause Lessor to perform its
obligations under the Master Lease for the benefit of Sublessee. If the
Master Lease terminates, this Sublease shall terminate and the Sublessee
shall have no further occupancy or other rights to the Premises and shall
immediately vacate the Premises. Upon such vacation of the Premises, the
parties shall be relieved of any further liability or obligation under this
Sublease, provided however, that if the Master Lease terminates as a result
of a default or breach by Sublessor or Sublessee under this Sublease and/or
the Master Lease, then the defaulting party shall be liable to the
nondefaulting party for the damage suffered as a result of such
termination. Notwithstanding the foregoing, if the Master Lease gives
Sublessor any right to terminate the Master Lease in the event of the
partial or total damage, destruction, or condemnation of the Master
Premises or the building or project of which the Master Premises are a
part, the exercise of such right by Sublessor shall not constitute a
default or breach hereunder. This Sublease shall at all times be subject
and subordinate to the Master Lease and any other instruments which the
Master Lease is or may become subordinate to.
9. It is expressly recorded that all electrical and other costs of operating
all and any equipment for the activities of the Sublessee in the
Premises, including activities performed by it for and on behalf of or
for the benefit of the Sublessor, shall be borne and paid for in full by
the Sublessee. The Sublessee shall procure that such electrical costs are
separately metered. It is further expressly recorded that all the terms
of the Packaging Agreement between the Sublessor and the Sublessee,
excluding the provisions of paragraph 3 thereof which are dealt with in
this Sublease and shall be governed hereby, shall continue to apply as
between the parties and be of full force and effect. In the event of the
termination of the Packaging Agreement at any time, the Sublessor or
Sublessee shall have the right to summarily terminate this Sublease
irrespective of whether or not there shall have been any breach by the
Sublessor or Sublessee under this Sublease, the intention of the parties
being that if the Packaging Agreement between the parties is no longer
operative or of force and effect, then this Sublease shall simultaneously
no longer be operative or of force or effect.
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10. ATTORNEYS' FEES
If Sublessor or Sublessee shall commence an action against the other
arising out of or in connection with this Sublease, the prevailing party
shall be entitled to recover its costs of suit and reasonable attorney's
fees.
11. NOTICES
All notices and demands which may or are to be required or permitted to be
given by either party on the other hereunder shall be in writing. All
notices and demands by the Sublessor to the Sublessee shall be sent by
United States Mail, postage prepaid, addressed to the Sublessee at the
Premises or delivered by hand. All notices by the Sublessee to the
Sublessor shall be sent by United States Mail, postage prepaid, addressed
to the Sublessor at the Master Premises or delivered by hand or to such
other address as the Sublessor may from time to time advise the Sublessor
by written notice.
12. CONSENT BY LESSOR
THIS SUBLEASE SHALL BE OF NO FORCE OR EFFECT UNLESS CONSENTED TO BY THE
LESSOR, IF SUCH CONSENT IS REQUIRED UNDER THE TERMS OF THE MASTER LEASE.
13. COMPLIANCE
The parties hereto agree to comply with all applicable federal, state and
local laws, regulations, codes ordinances and administrative orders having
jurisdiction over the parties, property or the subject matter of this
Agreement, including, but not limited to, the 1965 Civil Rights Act and all
amendments thereto, the Foreign Investment In Real Property Tax Act, the
Comprehensive Environmental Response Compensation and Liability Act, and
The Americans With Disabilities Act.
Sublessor: Sublessee:
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By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxx Xxxxxxxx
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Title: Chairman Title: President
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By: By:
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Title: Title:
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Date: 4/25/97 Date: 4/25/97
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LESSOR'S CONSENT TO SUBLEASE
The undersigned ("Lessor"), landlord under the Master Lease, hereby consents to
the foregoing Sublease without waiver of any restriction in the Master Lease
concerning further assignment or subletting. Lessor certifies that, as of the
date of Lessor's execution hereof, Sublessor is not in default or breach of any
of the provisions of the Master Lease, and that the Master Lease has not been
amended or modified except as expressly set forth in the foregoing Sublease.
Lessor:
27 Railroad Partnership L.P.,
a California partnership
By: Investment Building Group,
a California corporation,
General Partner
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, President
CONSULT YOUR ADVISORS - This document has been prepared for approval by your
attorney. No representation or recommendation is made by Broker or any party as
to the legal sufficiency or tax consequences of this document or the transaction
to which it relates. These are questions for your attorney.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other person,
with experience in evaluating the condition of the property, including the
possible presence of asbestos, hazardous materials and underground storage
tanks.
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EXHIBIT "A" - PREMISES
[MAP]
* Exact separation wall OWNER/DEVELOPER
location subject to minor Investment Building Group
adjustment. 000 X. Xxxxx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
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