STANDARD INDUSTRIAL LEASE
Dated (for reference) as of July 25, 2002
1. Defined Terms. Each reference in this Lease to any of the following terms
shall include the data for such term as stated below with any additional terms
used in this Lease to have the meaning and definition given hereinafter:
Tenant: Xxxxxx Beverage Company Landlord: 44 Promenade Partnership L.P.
a Delaware corporation a California Limited Partnership
Xxxxxx's Address Landlord's Address:
0000 Xxxxxxxx Xxxxxx c/o Investment Building Group
Corona, CA 92882 0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Description of the Premises:
Floor Area: Approximately 20,300 square feet indicated on Exhibit "A"
Street Address 000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxx, XX
Term: Month-to-Month
Commencement Date August 26, 2002
Rent: $____ per month
Taxes, Insurance and Maintenance Reserve Deposit: $____
Security Deposit: $____
Insurance Amounts:
Bodily Injury per Person: Three Million Dollars ($3,000,000)
Bodily Injury per Occurrence: Three Million Dollars ($3,000,000)
Property Damage: One Million Dollars ($1,000,000)
Tenant Improvement Plans (approved by Tenant and Landlord):
Tenant's Construction Representative:
Uses: Warehousing, packaging and distribution of consumer products - no office
use.
Tenant's Share (if multi-tenant) of: Real Property Taxes ____% Insurance
Expenses 11.4% Maintenance Expenses ____%.
2. Preamble. Landlord hereby leases to Tenant, and Tenant hereby leases and
accepts from Landlord, that certain real property and building floor area more
particularly described in Paragraph 1 (the "Premises") for the Term and upon the
covenants and conditions hereinafter specified.
3. Construction and Commencement.
3.1 Construction. Landlord shall cause to be constructed the building and
improvements substantially in accordance with the Tenant Improvement Plans. The
Premises shall be ready for occupancy on the date upon which the work of
construction to be undertaken by Landlord has been substantially completed
("Ready, for Occupancy") as determined by the issuance of a written certificate
by Landlord to Tenant certifying (a) that the improvements have been
substantially completed in accordance with the Tenant Improvement Plans, and (b)
the date of such completion. Landlord shall complete, as soon as reasonably
possible, any items of work or adjustment not completed when the Premises are
Ready for Occupancy and such defective or omitted work undertaken by Landlord of
which Tenant has given Landlord written notice within thirty (30) days after the
date the Premises are Ready for Occupancy. The Premises shall be Ready for
Occupancy not later than the Commencement Date; provided, however, that the
Commencement Date may be extended for a period of time equal to the period of
any delay encountered by Landlord affecting said work of construction because of
fire, inclement weather, acts of God, riot, governmental regulations, strikes,
shortages of material or labor, changes in the Tenant Improvement Plans, or any
other cause beyond the reasonable control of Landlord.
3.2 Commencement. The Term of this Lease shall commence upon the earlier
of: (a) the Commencement Date, or if the Premises are not Ready for Occupancy by
the Commencement Date, the date upon which the Premises are Ready for Occupancy,
(b) the date upon which Tenant first occupies any portion of the Premises, or
(c) the date upon which Rent would have otherwise commenced to accrue under this
Lease had Tenant not delayed in the performance of any of its duties or
obligations hereunder or had not otherwise interfered with or caused a delay in
the performance of Xxxxxxxx's obligations hereunder. If the work of construction
is not completed within one hundred twenty (120) days after the Commencement
Date as extended pursuant to Paragraph 3.1, the sole remedy of either party
shall be the option to terminate this Lease by the delivery to the other party
of written notice of such termination within ten (10) days thereafter.
4. Rent; Net Lease. Tenant agrees to pay Landlord at Xxxxxxxx's address or at
such other place designated by Landlord by written notice to Tenant the Rent, in
lawful money of the United States, in advance, without demand, off-set or
deduction, on the first day of each calendar month of the Term hereof and in the
event the Term commences or the date of expiration of this Lease occurs other
than on the first day or the last day of a calendar month, the Rent for such
month shall be prorated. This Lease is what is commonly called a "net lease," it
being understood that Landlord shall receive the Rent free and clear of any and
all impositions, taxes, liens, charges or expenses of any nature or kind
whatsoever in connection with the ownership and operation of the Premises. If
Rent is not received as provided above, a late charge shall be payable by Xxxxxx
as provided in Paragraph 13.4.
5. Deposits.
5.1 Taxes, Insurance and Maintenance Reserve. Tenant shall deposit with
Landlord each month the amount set forth in Paragraph 1 as a reserve to be used
to pay real property taxes, maintenance expenses and insurance expenses on the
Premises which are payable by Tenant under the terms of this Lease. If the
amounts deposited with Landlord by Tenant under the provisions of this Paragraph
are insufficient to discharge the obligations of Tenant, Tenant shall pay to
Landlord, upon Landlord's demand, the additional sums necessary to fully satisfy
such obligations. Tenant shall, upon Landlord's demand, increase its monthly
deposits to an amount equal to one-twelfth of the prior year's actual expenses.
All monies deposited with Landlord under this Paragraph may be intermingled with
other moneys of Landlord and shall not bear interest.
5.2 Security Deposit. Tenant has deposited with Landlord the Security
Deposit set forth in Paragraph 1 above as security for Xxxxxx's faithful
performance of Xxxxxx's obligations hereunder. If Tenant fails to pay Rent or
other charges due hereunder, or otherwise defaults with respect to any provision
of this Lease, Landlord may use, apply or retain all or any portion of said
deposit for the payment of any Rent or other charge in default or for the
payment of any other sum to which Landlord may become obligated by reason of
Tenant's default, or to compensate Landlord for any loss or damage which
Landlord may suffer thereby. If Landlord so uses or applies all or any portion
of said deposit, Tenant shall within ten (10) days after written demand therefor
deposit cash with Landlord in an amount sufficient to restore said deposit to
the full amount stated in Paragraph 1; and Xxxxxx's failure to do so shall be a
material breach of this Lease. Landlord shall not be required to keep said
deposit separate from its general accounts. If Xxxxxx performs all of Tenant's
obligations hereunder, said deposit, or so much thereof as has not theretofore
been applied by Landlord, shall be returned, without payment of interest or
other increment for its use, to Tenant (or, at Landlord's option, to the last
assignee, if any, of Xxxxxx's interest hereunder) at the expiration of the Term
hereof, and after Xxxxxx has vacated the Premises. No trust relationship is
created herein between Landlord and Tenant with respect to said Security
Deposit.
6. Use.
6.1 Use. The Premises shall be used and occupied only for the uses stated
in Paragraph 1.
6.2 Compliance with Law; Prior Restriction. Tenant shall, at Tenant's sole
expense, comply promptly and continuously with all applicable statutes,
ordinances, rules, regulations, orders, restrictions of record, and requirements
in effect during the Term or any part of the Term hereof regulating the Use of
the Premises. Tenants shall not use or permit the use of the Premises in any
manner that will tend to create waste or a nuisance. Outside storage shall not
be allowed without prior written approval from Landlord.
6.3 Conditions of Premises. Tenant hereby accepts the Premises in their
condition existing as of the date of the execution hereof, except for those
specific improvements which Landlord has undertaken to provide in Paragraph 3
and subject to all applicable zoning, municipal, county and state laws,
ordinances and regulations and any covenants or restrictions of record governing
and regulating the use of the Premises, and accepts this Lease subject thereto
and to all matters disclosed thereby and by any exhibits attached hereto. Tenant
acknowledges that neither Landlord nor Xxxxxxxx's agent has made any
representation or warranty as to the suitability of the Premises for the conduct
of Tenant's business, and that Xxxxxx has made such legal and factual inquiries
with respect thereto as it deems appropriate and has relied solely thereon.
6.4 Hazardous Materials. Tenant shall not cause any hazardous wastes,
chemicals or materials (collectively "Hazardous Materials") to be used,
generated, stored or disposed of on or about the Premises except with Xxxxxxxx's
written permission and in strict compliance with all applicable regulations and
using all necessary and appropriate precautions. Xxxxxxxx's permission may be
withheld for any reason. Tenant shall be liable to Landlord for any and all
damages caused by Tenants storage, usage or handling of Hazardous Materials on
the Premises. Landlord shall not be liable to Tenant for any claims, damages or
losses due to the effects of Hazardous Materials on the Premises that are caused
by owners, tenants, licensees, and invitees of other properties or is not
directly caused by Landlord. Landlord shall not be liable to Tenant regardless
of whether or not Landlord has approved Xxxxxx's activities. Tenant shall
indemnify, defend by counsel acceptable to Landlord and hold Landlord harmless
from and against any claims, damages or liabilities arising out of a breach of
any provision of this Paragraph 6.4.
7. Maintenance, Repairs And Alterations.
7.1 Tenant's Obligations, Tenant shall keep in good order, condition and
repair, the Premises and every part thereof, structural and non-structural, and
all adjacent sidewalks, landscaping, driveways, parking lots, and fences located
in the areas which are adjacent to and included with the Premises. At the cost
and expense of Tenant, the landscaping shall be maintained by a professional
gardener and the exterior of the building shall be repainted at least once every
four (4) years.
7.2 Surrender. On the last day of the Term hereof, or on any sooner
termination, Tenant shall surrender the Premises to Landlord in the same
condition as when received, ordinary wear and tear excepted, clean and free of
debris. Tenant shall repair any damage to the Premises occasioned by the removal
of Xxxxxx's trade fixtures, furnishings and equipment. Tenant shall leave the
air lines, power panels, electrical distribution systems, lighting fixtures,
space heaters, air conditioning, plumbing and fencing on the Premises in good
operating condition.
7.3 Landlord Rights. If Tenant fails to perform Tenant's obligations under
this Paragraph 7, or under any other Paragraph of this Lease, Landlord may, at
its option (but shall not be required to) enter upon the Premises, after ten
(10) days' prior written notice to Tenant (except in the case of an emergency,
in which case no notice shall be required), perform such obligations on Tenant's
behalf and put the same in good order, condition and repair, and the cost
thereof shall become due and payable as additional rent to Landlord together
with Xxxxxx's next rent installment.
7.4 Landlord's Obligations. Except for the obligations of Landlord under
Paragraph 9 and 14, it is intended by the parties hereto that Landlord shall
have no obligation, in any manner whatsoever, to repair And maintain the
Premises nor the equipment therein, whether structural or non-structural all of
which obligations are intended to be that of the Tenant. Tenant hereby waives
the provisions of California Civil Code Section 1941 and 1942 or any related or
successor provision of law which would otherwise afford Tenant the right to make
repairs at Landlord's expense or to terminate this Lease because of Landlord's
failure to keep the Premises in good order, condition and repair.
7.5 Alterations and Additions.
(a) Tenant shall not without Landlord's prior written consent, make any
alterations, improvements, additions or Utility Installations in, on or about
the Premises, except for non-structural alterations not exceeding ten thousand
dollars during the Term of this Lease. As used in this Paragraph 7.5, the term
"Utility Installations" shall include carpeting, window coverings, air lines,
power panels, electrical distribution systems, lighting fixtures, space heaters,
air-conditioning, plumbing, And fencing. Landlord may require that Tenant remove
any or all of said alterations, improvements, additions or Utility Installations
at the expiration of the Term, and restore the Premises to their prior
condition. Landlord may require Tenant to provide Landlord, at Tenants sole cost
and expense, a lien and completion bond in an amount equal to one and one-half
times the estimated cost of such improvements, to insure Landlord against any
liability for mechanic's and materialmen's liens and to insure completion of
work. Should Tenant make any alterations, improvements, additions or Utility
Installations without the prior approval of Landlord, Landlord may require that
Tenant remove any or all of the same.
(b)Any alterations, improvements, additions or Utility Installations in,
or about the Premises that Tenant shall desire to make and which require the
consent of the Landlord shall be presented to Landlord in written form, with
proposed detailed plans. If Landlord shall give its consent, the consent shall
be deemed conditioned upon Tenant acquiring a permit to do so from appropriate
governmental agencies, the furnishing of a copy thereof to Landlord prior to the
commencement of the work, and the compliance by Tenant with all conditions of
said permit in a prompt and expeditious manner. Upon completion of any
alteration, Tenant shall provide Landlord "as built' plans together with
evidence of the appropriate governmental final approval of the work.
(c) Tenant shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Tenant at or for use in
the Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Premises or any interest therein. Tenant shall
give Landlord not less than ten (10) days' notice prior to the commencement of
any work in or on the Premises, and Landlord shall have the right to post
notices of non-responsibility in or on the Premises as provided by law.
(d) Unless Landlord requires their removal, as set forth in Paragraph
7.5(a), all alterations, improvements, additions and Utility Installations
(whether or not such Utility Installations constitute trade fixtures of Tenant),
which may be made on the Premises, shall become the property of Landlord and
remain upon and be surrendered with the Premises at the expiration of the Term.
Notwithstanding the provisions of this Paragraph 7.5(d), Tenant's machinery and
equipment, other than that which is affixed to the Premises so that it cannot be
removed without material damage to the Premises, shall remain the property of
Tenant and may be removed by Tenant subject to the provisions of Paragraph 7.2.
7.6 Common Area Maintenance; Accounting and Asset Management Services.
Landlord, at Landlord's option, may arrange for any portion of the exterior or
common area maintenance, utilities and repair. Tenant shall pay to Landlord upon
demand Xxxxxx's share of such expenses as set forth in Paragraph 1. As
compensation for Landlord's accounting and management services, Tenant shall pay
to Landlord an amount equal to ten percent of Tenant's share of the real
property taxes, utilities, insurance expenses, and maintenance expenses.
8. Insurance, Indemnity.
8.1 Coverage. The following insurance and any additional insurance coverage
that may be required by law, holders of mortgages or deeds of trust shall be
carried protecting Landlord and the holders of any mortgages or deeds of trust
covering the Premises. Any insurance policies provided by Tenant shall provide
that such policies are primary and non-contributing with any insurance carried
by the Landlord.
(a) Insurance covering loss or damage to the Premises in the amount of the
full replacement value thereof, as the same may exist from time to time, but in
no event less than the total amount required by lenders having liens on the
Premises, against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, and special extended perils
("all risk" as such term is used in the insurance industry) including earthquake
endorsements. Said insurance shall provide for payment of loss thereunder to
Landlord or to the holders of mortgages or deeds of trust on the Premises. A
stipulated value or agreed amount endorsement deleting the co-insurance
provision of the policy shall be procured with said insurance. If such insurance
coverage has a deductible clause, the deductible amount shall not exceed five
thousand dollars per occurrence, and Tenant shall be liable for such deductible
amount.
(b) Comprehensive general liability (Xxxxxxxx's risk only including without
limitation bodily injury, personal injury and property damage insurance) in the
amount of six million dollars or such higher limits as Landlord may reasonably
require.
(c) Insurance against abatement or loss of rent in case of fire or other
casualty in an amount equal to the Rent, Real Property Taxes, and Insurance
premium payments to be made by Tenant during one (1) year; and
(d)Comprehensive public liability insurance (including without limitation
bodily injury, personal injury and property damage insurance), with limits at
least as high as the amounts respectively stated in Paragraph 1, or such higher
limits as Landlord may reasonably require.
8.2 Payment of Premiums. Tenant shall obtain the insurance policy called
for in Paragraph 8.1(d). Landlord shall obtain the insurance policies called for
in Paragraphs 8.1(a), (b), and (c) and Tenant shall pay the cost thereof upon
demand as additional rent. However, if the Premises are a one-tenant building
and Tenant can provide suitable insurance at lesser cost within thirty (30) days
after notice of the company and rate obtained by Landlord; Tenant may do so and
shall not be liable to Landlord for any cost of temporary insurance in excess of
the rate for the substitute insurance. If Tenant fails to maintain insurance
which Tenant has undertaken to provide, Tenant shall Pay for any loss or cost
resulting from said failure.
8.3 Insurance Policies. Insurance required hereunder shall be with
companies holding a Best's Insurance Guide "General Policyholders Rating" of at
least "A" and a "Financial Size Category" rating of at least CLASS VIII.
Insurance policies shall not be cancelable or subject to reduction in coverage
or other modification except after thirty (30) days' prior written notice to
Landlord. The insuring party shall deposit with such mortgage holders as
Landlord may require, policies, duplicates or certificates as such holders may
require, and shall in all cases furnish the other party with policies,
duplicates and certificates. Tenant shall, not violate or permit to be violated
any of the conditions or provisions of any policy provided for in Paragraph 8.1,
and Tenant shall so perform and satisfy the requirements of the companies
writing such policies so that at all times companies of good standing reasonably
satisfactory to Landlord shall be willing to write and/or continue such
insurance.
8.4 Waiver of Subrogation. Tenant and Landlord each hereby release the
other, and waive their entire right of recovery against the other for loss or
damage arising out of or incident to the perils insured against hereunder,
whether due to the negligence of Tenant or Landlord or their agents, employees,
contractors and/or invitees. Tenant and Landlord shall, upon obtaining the
policies of insurance required hereunder, give notice to the Insurance carriers
that the foregoing mutual waiver of subrogation is contained in this Lease.
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8.5 Indemnity Tenant shall indemnify and hold harmless Landlord from and
against any and all claims arising from Tenant's use of the Premises or from the
conduct of Tenant's business or from any activity, work or things done,
permitted or suffered by Tenant in or about the Premises or elsewhere and shall
further Indemnify and hold harmless Landlord from and against any and all claims
arising from any breach or default in the performance of any obligation on
Tenant's part to be performed under the terms of this lease or arising from any
negligence of Tenant, or any of Tenant's agents, contractors, or employees, and
from and against all costs, attorneys fees, expenses and liabilities Incurred In
the defense of any such claim or any action or proceeding brought thereon; and
in case any action or proceeding be brought against Landlord by. reason of any
such claim, Tenant upon notice from Landlord shall defend the same at Tenant's
expense by counsel satisfactory to Landlord: Tenant as a material part of the
consideration to Landlord hereby assumes all risk of damage to property or
injury to persons, in, upon or about the Premises arising from any cause and
Tenant hereby waives all claims in respect thereof against Landlord.
8.6 Exemption of Landlord from Liability. Tenant hereby agrees that
Landlord shall not be liable for injury to Tenant's business or any loss of
income therefrom or for damage to the goods, wares, merchandise or other
property of Tenant, Tenant's employees, invitees, customers, or any other person
in or about the Premises; nor shall Landlord be liable for Injury to the person
of Tenant, Tenant's employees, agents or contractors, whether such damage or
injury is caused by or results from fire, steam, electricity, gas, water or
rain, or from the breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures
or from any other cause, whether said damage or injury results from conditions
arising upon the Premises or upon other portions of the, building of which the
Premises are a part, or from other sources or places, and regardless of whether
the cause of such damage or injury or the means of repairing same is
inaccessible to Tenant. Landlord shall not be liable for any damages arising
from any act or neglect of any other tenant if any of the building in which the
Premises are located.
9. Damage or Destruction.
9.1 Partial Damage - Insured. Subject to the provisions of Paragraphs 9.3
and 9.4, if the Premises are damaged and such damage was caused by a casualty
covered under an Insurance policy, Landlord shall repair such damage as soon as
reasonably possible and this Lease shall continue in full force and effect. If
Tenant repairs the damage, Landlord shall reimburse Tenant for the costs of
repair to the extent of insurance proceeds received by Landlord.
9.2 Partial Damage - Uninsured. Subject to the provisions of Paragraphs 9.3
and 9.4, if the Premises are damaged, except by a negligent or willful act of
Tenant (in which event Tenant shall make the repairs at its expense), and such
damage was caused by a casualty not covered under an insurance policy Landlord
may at Landlord's option either (i) repair such damage as soon as reasonably
possible at Landlord's expense, in which event this Lease shall continue in full
force and effect, or (ii) give written notice to Tenant within thirty (30) days
after the date of the occurrence of such damage of Landlord's intention to
cancel and terminate this Lease as of the date of the occurrence of such damage.
In the event Landlord elects to give such notice of Landlord's intention to
cancel and terminate this Lease Tenant shall have the right within ten (10) days
after the receipt of such notice to give written notice to Landlord of Tenant's
intention to repair such damage at Tenant's expense, without reimbursement from
Landlord, in which event this Lease shall continue in full force and effect, and
Tenant shall proceed to make such repairs as soon as reasonably possible. If
Tenant does not give such notice within such ten (10) day period, this Lease
shall be canceled and terminated as of the date of the occurrence of such
damage.
9.3 Total Destruction. If at any time during the Term of this Lease there
is damage, whether or not an insured loss, (including destruction required by
any authorized public authority) to the building of which the Premises are a
part to the extent that the cost of repair exceeds fifty percent (50%) of the
then replacement cost of such building as a whole, then this Lease shall
automatically terminate as of the date of such destruction.
9.4 Damage Near End of Term. If the Premises are damaged during the last
year of the Term of this Lease, Landlord may at Landlord's option cancel and
terminate this Lease as of the date of occurrence of such damage by giving
written notice to Tenant of Landlord's election to do so within thirty (30) days
after the date of occurrence of such damage.
9.5 Abatement of Rent. In the event of damage described in Paragraphs 9.1
or 9.2, and Landlord or Tenant repairs or restores the Premises, Rent for the
period during which such damage, repair or restoration continues shall be abated
in proportion to the degree to which Xxxxxx's use of the Premises is impaired,
but only to the extent of any proceeds received by Landlord from rental
abatement insurance described in Paragraph 8.1. Except for the abatement of
Rent, if any, Tenant shall have no claim against Landlord for any damage
suffered by reason of any such damage, destruction, repair or restoration.
9.6 Waiver. Tenant and Landlord hereby waive the provisions of California
Civil Code Paragraphs 1932 (2) and 1933 (4) or any related or successor
provision of law which relate to termination of leases when the thing leased is
destroyed and agree that such event shall be governed by the terms of this
Lease.
10. Real Property Taxes.
10.1 Payment of Taxes. Tenant shall pay the Real Property Taxes, as defined
in Paragraph 10.2, applicable to the Premises during the Term. If deposits
collected for real property taxes as provided in Paragraph 5.1 are not
sufficient to discharge the Tenant's obligations, payment of the balance shall
be made at least ten (10) days prior to the delinquency date of such payment by
depositing the payment with Landlord. If any such taxes paid by Tenant shall
cover any period of time after the expiration of the Term hereof, Xxxxxx's share
of such taxes shall be equitably prorated to cover only the period of time
within the tax fiscal year during which this Lease shall be in effect, and
Landlord shall reimburse Tenant to the extent required within thirty (30) days
following expiration of the Term.
10.2 Definition of "Real Property Taxes". As used herein, the term Real
Property Taxes shall include any form of real estate tax or assessment, general,
special, ordinary or extraordinary, and any license fee, commercial rental tax,
improvement bond or bonds, levy or tax (other than inheritance, personal income
or estate taxes) imposed on the Premises by any authority having the direct or
indirect power to tax, including any city, state or federal government, or any
school, agricultural, sanitary, fire, street, drainage or other improvement
district thereof, as against any legal or equitable interest of Landlord in the
Premises or in the real property of which the Premises are a part, as against
Landlord's right to rent or other income therefrom, and as against Landlord's
business of leasing the Premises. Real Property Taxes shall also include any
tax, fee, levy, assessment or charge (i) in substitution of, partially or
totally, any tax, fee, levy assessment or charge hereinabove included within the
definition of Real Property Taxes or (ii) the nature of which was hereinbefore
included within the definition of Real Property Taxes.
11. Utilities. Tenant shall pay for water, gas, electricity, and any other
utilities and services supplied to the Premises together with taxes thereon.
Tenant shall be responsible for any installation or hook-up charge. Landlord
shall not be liable to Tenant for interruption in or curtailment of any utility
service, nor shall any such interruption in or curtailment constitute a
constructive eviction or grounds for rental abatement. If any such services are
not separately metered to Tenant, Tenant shall pay a reasonable proportion to be
determined by Landlord of all charges jointly metered with other premises.
12. Assignment and Subletting.
12.1 Landlord's Consent Required. Tenant shall not voluntarily or by
operation of law assign, mortgage, sublet, or otherwise transfer or encumber all
or any part of Tenant's interest in this Lease or in the Premises without
Landlord's prior written consent. Landlord shall not unreasonably withhold its
consent to an assignment or sublet, provided the proposed assignee or sublessee
is reasonably satisfactory to Landlord as to credit and will occupy and use the
Premises for the same purposes specified in Paragraph 1. Any attempted
assignment, transfer, mortgage, encumbrance or subletting without such consent
shall constitute a breach of this Lease and be voidable at Landlord's election.
Tenant shall pay to Landlord ____ dollars as compensation for expenses in
connection with any request for Xxxxxxxx's consent by Xxxxxx.
12.2 No Release of Tenant. Regardless of Landlord's consent, no subletting
or assignment shall release Tenant of Tenant's obligation or alter the primary
liability of Tenant to pay the Rent and to perform all other obligations to be
performed by Tenant hereunder. The acceptance of Rent by Landlord from any other
person shall not be deemed to be a waiver by Landlord of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting.
12.3 Recapture of Premises. In connection with any proposed assignment or
sublease, Tenant shall submit to Landlord in writing (a) the name of the
proposed assignee or sublessee, (b) such information as to its financial
responsibility and standing as Landlord may reasonably require, and (c) all of
the terms and conditions upon which the proposed assignment or subletting is to
be made. Landlord shall have an option to cancel and terminate this Lease with
respect to all or such portion of the Premises which is to be assigned or
sublet. Landlord may exercise said option in writing within thirty (30) days
after its receipt from Tenant of such request to assign or sublease the
Premises. If Landlord shall exercise its option, Xxxxxx shall surrender
possession of the entire Premises, or the portion thereof which is the subject
of the option. If this Lease is canceled as to a portion of the Premises only,
the Rent after the date of cancellation shall be reduced in the proportion that
the floor area of the canceled portion bears to the total floor area of the
Premises.
12.4 Excess Sublease Rental. If, on account of or in connection with any
assignment or sublease, Xxxxxx receives rent or other consideration in excess of
the Rent called for hereunder, after appropriate adjustments to assure all other
payments called for hereunder are appropriately taken into account, Tenant shall
pay to Landlord fifty percent of the excess of such payment of rent or other
consideration received by Tenant promptly after its receipt.
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13. Defaults; Remedies.
13.1 Defaults. The occurrence of anyone or more of the following events
shall constitute a material default and breach of this Lease by Tenant:
(a) The vacating or abandonment of the Premises by Xxxxxx.
(b) The failure by Tenant to make any payment of Rent or any other payment
required to be made by Tenant hereunder, as and when due where such failure
shall continue for a period of three (3) days after written notice thereof from
Landlord to Tenant.
(c) The failure by Xxxxxx to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Xxxxxx,
other than described. In Paragraph 13.1(b) where such failure shall continue for
a period of thirty (30) days after written notice thereof from Landlord to
Tenant; provided, however, that If the nature of Tenant's default is such that
more than thirty (30) days are reasonably required for its cure, then Tenant
shall not be deemed to be in default if Tenant commences such cure within said
thirty (30) day period and thereafter diligently prosecutes such cure to
completion.
(d)(i) The making by Tenant of any general arrangement or assignment for
the benefit of creditors; (ii) the filing by or against Tenant of a petition to
have Tenant adjudged bankrupt or a petition for reorganization or arrangement
under any law relating to bankruptcy (unless, in the case of a petition filed
against Tenant, the same is dismissed within sixty (60) days); (iii) the
appointment of a trustee or receiver to take possession of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease,
where possession is not restored to Tenant within thirty (30) days; or (iv) the
attachment execution or other judicial seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease, where such
seizure is not discharged within thirty (30) days.
(e) The discovery by Landlord that any financial statement given to Land
lord by Xxxxxx, any assignee of Tenant, any subtenant of Tenant, any successor
in interest or any guarantor of Tenant's obligations hereunder was materially
false.
13.2 Remedies. In the event of any material default or breach by Tenant,
Landlord may at any time thereafter, with or without notice or demand and
without limiting Landlord in the exercise of any right or remedy which Landlord
may have by reason of such default or breach:
(a)Terminate Xxxxxx's right to possession of the Premises, in which case
this Lease shall terminate and Tenant shall immediately surrender possession of
the Premises to Landlord. In such event, Landlord shall be entitled to recover
from Tenant all damages incurred by Landlord by reason of Tenant's default
including, but not limited to, the cost of recovering possession of the
Premises; expenses of reletting including necessary renovation and alteration of
the Premises, reasonable attorneys' fees, and any real estate commission
actually paid; the worth at the time of award by the court having jurisdiction
thereof of the amount by which the unpaid Rent for the balance of the Term after
the time of such award exceeds the amount of such rental loss for the same
period that Tenant proves could be reasonably avoided; and that portion of the
leasing commission paid by Landlord applicable to the unexpired Term of this
Lease. Unpaid installments of Rent or other sums shall bear interest at the rate
of twelve percent per annum but not to exceed the maximum rate allowed by law.
(b) Maintain Tenant's right to possession in which case this Lease shall
continue in effect whether or not Tenant shall have abandoned the Premises. In
such event, Landlord shall be entitled to enforce all of Landlord's rights and
remedies under this Lease, including the right to recover the Rent as it becomes
due hereunder.
(c) Pursue any other remedy now or hereafter available to Landlord under
the laws or judicial decisions of the State of California.
13.3 Default by Landlord. Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord within thirty (30) days after
written notice by Tenant to Landlord and to the holder of any mortgage or deed
of trust covering the Premises whose name and address shall have theretofore
been furnished to Tenant in writing, specifying wherein Landlord has failed to
perform such obligations; provided, however, that if the nature of Landlord's
obligation is such that more than thirty (30) days are required for performance,
then Landlord shall not be in default if Landlord commences performance within
such thirty (30) day period and thereafter diligently prosecutes the same to
completion.
13.4 Late Charges. Tenant hereby acknowledges that late payment by Tenant
to Landlord of Rent and other sums due hereunder will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of Rent or any other sum due from Tenant shall
not be received by Landlord or Landlord's designee within five (5) days after
such amount shall be due, then, without any requirement for notice to Tenant,
Tenant shall pay to Landlord a late charge equal to five percent of such overdue
amount. The parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Landlord will incur by reason of late payment
by Xxxxxx. Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount, nor
prevent Landlord from exercising any of the other rights and remedies granted
hereunder.
14. Condemnation. If the Premises or any portion thereof are taken under the
power of eminent domain, or sold under the threat of the exercise of said power
(all of which are herein called "Condemnation"), this Lease shall terminate as
to the part so taken as of the date the condemning authority takes title or
possession, whichever first occurs. If more than ten percent of the floor area
of the building on the Premises or more than twenty-five percent of the land
area of the Premises which is not occupied by any building is taken by
Condemnation; then Tenant may, at Tenant's option to be exercised in writing
only within ten (10) days after Landlord shall have given Tenant written notice
of such taking (or in the absence of such notice, within ten (10) days after the
condemning authority shall have taken possession), terminate this Lease as of
the date the condemning authority takes such possession. If Tenant does not
terminate this Lease in accordance with the foregoing, this Lease shall remain
in full force and effect as to the portion of the Premises remaining, except
that the Rent shall be reduced in the proportion that the floor area taken bears
to the total floor area of the building situated on the Premises. No reduction
in Rent shall occur if the only area taken is that which does not have a
building located thereon. Any award for the taking of all or any part of the
Premises under the power of eminent domain or any payment made under threat of
the exercise of such power shall be the property of Landlord, whether such award
shall be made as compensation for diminution in value of the leasehold or for
the taking of the fee, or as severance damages; provided, however, that Tenant
shall be entitled to any award for loss or damage to Tenant's trade fixtures and
removable personal property. In the event that this Lease is not terminated by
reason of such Condemnation, Landlord shall, to the extent of severance damages
received by Landlord in connection with such Condemnation, repair any damage to
the Premises caused by such Condemnation except to the extent that Xxxxxx has
been reimbursed therefor by the condemning authority. Tenant shall pay any
amount in excess of such severance damages required to complete such repair.
15. Examination of Lease. Submission of this instrument for examination or
signature by Xxxxxx does not constitute a reservation of or option to lease.
This instrument is not effective as a lease or otherwise until execution and
delivery by Landlord and Tenant.
16. Estoppel Certificate.
(a) Tenant shall upon ten (10) days prior written notice from Landlord
execute, acknowledge and deliver to Landlord a statement in writing (i)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date to which the
Rent and other charges are paid in advance, if any, and (ii) acknowledging that
there are not, to Xxxxxx's knowledge, any uncured defaults on the part of
Landlord hereunder, or specifying such defaults if any are claimed. Any such
statement may be conclusively relied upon by any prospective purchaser or
encumbrancer of the Premises.
(b) At Landlord's option, Xxxxxx's failure to deliver such statement within
ten (10) days of receipt of written notice shall be a material breach of this
Lease or shall be conclusive upon Tenant (i) that this Lease is in full force
and effect, without modification except as may be represented by Landlord, (ii)
that there are no uncured defaults in Landlord's performance, and (iii) that not
more than one month's Rent has been paid in advance.
(c) If Landlord desires to finance, refinance or sell the Premises, or any
part thereof, Tenant hereby agrees upon ten (10) days prior written notice to
deliver to Landlord such financial statements of Tenant as may be reasonably
required by a lender or purchaser. Such statement shall include the most recent
three years' financial statements of Tenant. All such financial statements shall
be received by Landlord in confidence and shall be used only for the purposes
herein set forth.
17. Landlord's liability. Whenever Landlord conveys its interest in the
Premises, Landlord shall be automatically released from all liability as
respects the further performance of covenants on the part of Landlord herein
contained provided the assignee executes an assumption agreement expressly
agreeing to assume all of Landlord's obligations with respect to this Lease. If
requested, Xxxxxx shall execute a form of release and such other documentation
as may be required to further effect these provisions. Xxxxxx agrees to look
solely to Xxxxxxxx's estate and interest in the Premises for the satisfaction of
any liability, duty or obligation of Landlord in respect to this Lease or the
relationship of Landlord and Tenant hereunder and no other assets of Landlord
shall be subject to any liability therefor. Xxxxxx agrees it will not seek and
hereby waives any recourse against the individual partners, directors, officers,
employees or shareholders of Landlord or any of their personal assets for such
satisfaction.
18. Severability. The invalidity of any provision of this Lease as determined by
a court of competent jurisdiction shall in no way affect the validity of any
other provision hereof.
19. Interest on Past-Due Obligations. Except as expressly herein provided, any
amount due to Landlord not paid when due shall bear interest at the rate of
twelve percent per annum but not exceeding the maximum rate allowed by law.
Payment of such interest shall not cure any default by Tenant.
20. Time of Essence. Time is of the essence.
21. Additional Rent. Any monetary obligations of Tenant to Landlord under the
terms of this Lease shall be deemed to be rent.
22. Incorporation of Prior Agreements; Amendments. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
agreement or understanding pertaining to any such matter shall be effective,
This Lease may be modified in writing only, signed by the parties in interest at
the time of the modification.
4
23. Notices. Any notice required or permitted to be given hereunder shall be in
writing and may be given by personal service, overnight delivery service or by
certified mail, return receipt requested. Notice shall be deemed given on the
date of delivery as shown on the delivery service or postal receipt. Either
party may by notice to the other specify a different address for notice
purposes, except that, upon Xxxxxx's taking possession of the Premises, the
Premises shall constitute Tenant's address for notice purposes. A copy of all
notices to be given to Landlord hereunder shall be concurrently transmitted by
Tenant to such parties at such addresses as Landlord may hereafter designate by
notice to Tenant.
24. Waivers. No waiver by Landlord of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Tenant of
the same or any other provision. Xxxxxxxx's consent to or approval of any act
shall not be deemed to render unnecessary the obtaining of Landlord's consent to
or approval of any subsequent act by Xxxxxx. The acceptance of Rent hereunder by
Landlord shall not be a waiver of any preceding breach by Tenant or of any
provision hereof, other than the failure of Tenant to pay the particular Rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such Rent. Partial or incomplete payments accepted by
Landlord shall not be a waiver or considered an accord and satisfaction of any
amounts due.
25. Captions. Paragraph captions are not a part hereof.
26. Holding Over. If Tenant remains in possession of the Premises or any part
thereof after the expiration of the Term without the express written consent of
Landlord, such occupancy shall be a tenancy from month to month at a rental
equal to the Rent during the last month of the Term increased by ____ percent
and upon all the terms hereof applicable to a month-to-month tenancy.
27. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
28. Covenants and Conditions. Each provision of this Lease performable by Tenant
shall be deemed both a covenant and a condition.
29. Binding Effect. Choice of Law Subject to the provisions of Paragraphs 12 and
17, this Lease shall be binding upon and inure to the benefit of the parties
hereto and their respective successors, assigns and legal representatives. This
Lease shall be governed by the laws of the State of California. The venue for
hearing litigation shall be in Orange County, California.
30. Subordination.
(a) This Lease, at landlord's option, shall be subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation or security now or
hereafter placed upon the real property of which the Premises are a part and to
all advances made on the security thereof and to all modifications, replacements
and extensions thereof. Xxxxxxxx's election to subordinate this Lease shall not
be effective unless the ground lessor, mortgagee or trustee shall execute with
Tenant a nondisturbance agreement recognizing that Xxxxxx's right to quiet
possession of the Premises shall not be disturbed if Tenant is not in default
and so long as Tenant shall pay the Rent and observe and perform all the
provisions of this Lease. If any mortgagee, trustee or ground lessor shall elect
to have this Lease prior to the lien of its mortgage, deed of trust or ground
lease, and shall give written notice thereof to Tenant, this Lease shall be
deemed prior to such mortgage, deed of trust, or ground lease, whether this
Lease is dated prior or subsequent to the date of said mortgage, deed of trust
or ground lease or the date of recording thereof.
(b) Xxxxxx agrees to execute any documents required to effectuate an
attornment, a subordination or to make this Lease prior to the lien of any
mortgage, deed of trust or ground lease, as the case may be. Tenant's failure to
execute such documents within ten (10) days after written demand shall
constitute a default by Tenant hereunder, or at Landlord's option, Landlord
shall execute such documents on behalf of Tenant as Xxxxxx's attorney-in-fact.
Xxxxxx does hereby make, constitute and irrevocably appoint Landlord as Xxxxxx's
attorney-in-fact and in Tenant's name, place and stead to execute such
documents.
31. Attorney's Fees. If Landlord or Xxxxxx brings an action to enforce its
respective rights hereunder, the unsuccessful party therein agrees to pay all
costs incurred by the prevailing party therein, including reasonable attorney's
fees and court costs to be fixed by the court.
32. Landlord's Access. Landlord and Landlord's agents shall have the right to
enter the Premises at reasonable times for the purpose of inspecting the same,
showing the same to prospective purchasers, lenders, or tenants, and making such
alterations, repairs, improvements or additions to the Premises or to the
building of which they are a part as Landlord may deem necessary or desirable.
Landlord may at any time during the last one hundred twenty (120) days of the
Term hereof place on or about the Premises any ordinary "For Sale" or "For
Lease" signs, all without rebate of Rent or liability to Tenant.
33. Auctions. Tenant shall not conduct any auction without Landlord's prior
written consent.
34. Signs. Any sign placed on the Premises shall contain only Tenant's name or
the name of any affiliate of Tenant actually occupying the Premises, but no
advertising matter. No such sign shall be erected until Tenant has obtained
Landlord's written approval of the location, materials, size, design, and
content thereof and any necessary permit therefor. Tenant shall remove any such
sign upon termination and return the Premises to their condition prior to the
placement of said sign.
35. Merger. The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, or a termination by Landlord, shall not work a
merger and shall at the option of the Landlord, terminate all or any existing
subtenancies or may, at the option of Landlord, operate as an assignment to
Landlord of any or all of such tenancies.
36. Easements, Boundary Changes. Landlord reserves to itself the right, from
time to time, to grant such easements, rights, dedications and enact boundary
and common area configuration adjustments that Landlord deems necessary or
desirable and to cause the recordation of parcel maps and restrictions, so long
as they do not unreasonably interfere with the use of the Premises by Xxxxxx.
Tenant shall sign any of the aforementioned documents upon request of Landlord
and failure to do so shall constitute a breach of this Lease by Xxxxxx.
37. Quiet Possession. Upon Xxxxxx's paying the Rent, additional rent and other
sums provided hereunder and observing and performing all of the covenants,
conditions and provisions on Tenant's part to be observed and performed
hereunder, Tenant shall have quiet possession of the Premises for the entire
Term hereof, subject to the provisions of this Lease.
38. Authority. If Tenant is a corporation, trust or partnership, each individual
executing this Lease on behalf of such entity represents and warrants that he is
duly authorized to execute and deliver this Lease on behalf of said entity. If
Tenant is a corporation, trust or partnership, Tenant shall, within thirty (30)
days after execution of this Lease, deliver evidence of such authority to
Landlord.
See Addendum attached.
The Parties hereto have executed this Lease on the dates immediately above their
respective signatures.
Dated: Dated: 8/9/02
Xxxxxx Beverage Company, 44 Promenade Partnership L.P.,
A Delaware corporation a California limited partnership
By: Investment Building Group
a California corporation
Its: general partner
By: /s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx, President
"Tenant" "Landlord"
5
ADDENDUM TO LEASE DATED JULY 25, 2002
BETWEEN
XXXXXX BEVERAGE COMPANY ("TENANT")
AND
44 PROMENADE PARTNERSHIP L.P. ("LANDLORD")
39. Stipulated Amount for Reimbursement for Taxes. Insurance, and
Maintenance Expenses. Landlord agrees to limit the ____% Tenant's share of the
property taxes, insurance and maintenance expenses during the first twelve
months of occupancy to _____ Dollars ($_____) per month excluding utility
charges, fire alarm service and the cost of any repairs or damage caused by
Tenant. In the event of an increase in the floor area occupied by Tenant, this
stipulated amount will be adjusted on a pro rata basis. In the event that the
actual expenses for taxes, insurance, and maintenance are less than the
stipulated amount, the difference shall not be refundable to Tenant.
40. Option to Terminate/Holding/Over. Either party may terminate this Lease
upon at least fifteen (15) days prior written notice to the other. If Tenant
remains in possession of the Premises or any part thereof after the date set
forth in a written notice of termination or after the expiration of the Term
without the express written consent of Landlord, such occupancy shall be a
tenancy from month-to-month at a rental equal to the Rent during the last month
of the Term increased by fifty percent (50%) and upon the terns hereof
applicable to a month-to-month tenancy.
41. Option to Expand Premises. In the event that Landlord anticipates
leasing either the Premises and/or the remaining space in Unit 101 of the
building to another party, Landlord will give Tenant three (3) business days to
execute an agreement under the terms proposed by Landlord which shall be the
same as proposed to the other party. If such agreement is not executed in said
three (3) days, Landlord shall then be free to complete the transaction with the
third party.
FIRST AMENDMENT TO LEASE
BY AND BETWEEN
XXXXXX BEVERAGE COMPANY ("TENANT")
AND
44 PROMENADE PARTNERSHIP L.P. ("LANDLORD")
This First Amendment dated (for reference ) January 21, 2003 to the above
said Xxxxx shall modify the terms thereof, commencing February 1, 2003 as
outlined below:
Premises: Approximately 38,400 square feet as shown in Exhibit "A-1".
Term: Extended through March 31, 2005. (See termination option below.)
Rent: $____ per month.
Taxes, Insurance and Maintenance Reserve Deposit: $____ per month.
Tenant's Share of: Real Property Taxes
Insurance Expenses
Maintenance Expenses: ____%
Paragraphs 39, 40 and 41 of the Addendum: Deleted.
New Paragraph 42: Tenant's Option to Terminate/Holding Over: Commencing April
1, 2003, Tenant may terminate the Lease by providing Landlord with at least
120 days prior written notice. If Tenant remains in possession of the
Premises or any part thereof after the date set forth in a written notice
of termination or after the expiration of the Term without the express
written consent of the Landlord, such occupancy shall be a tenancy from
month-to-month at a rental equal to the Rent during the last month of the
Term increased by fifty percent (50%) and upon the terms hereof applicable
to a month-to-month tenancy.
All other provisions of the Lease remain unchanged.
Xxxxxx Beverage Company 44 Promenade Partnership L.P.,
a Delaware Corporation a California limited partnership
By: /s/ XXXXXX XXXXXXXXXX By: Investment Building Group
---------------------- a California corporation,
general partner
Its: Vice Chairman
---------------------
By: /s/ XXXX X. XXXXXXX
------------------------
Xxxx X. Xxxxxxx, President
"TENANT" "LANDLORD"
