SAN FRANCISCO MART
Basic Lease Terms
DATE: May 3, 1996
TENANT: The Xxxxxx Manufacturing Company, Inc.
LANDLORD: San Francisco Mart
PREMISES: Showroom 778, Mart 1, comprising approximately 1,702 rentable square feet on the 7th
floor of the Building located at 0000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000
COMMENCEMENT DATE: July 1, 1996
EXPIRATION DATE: June 30, 1998
BASE RENT: $2,298.00 per month with yearly escalations based on CPI; provided, however, that in no
event shall the yearly increase in any given year be less than 5%.
SECURITY DEPOSIT: $4,596.00
ELECTRICITY: To be billed as specified in Paragraph 5(a). The monthly administrative fee is $25.00.
MINIMUM HOURS
OF OPERATION: Market weeks
LATE CHARGE: Ten percent (10%) of the overdue amount.
INTERNAL TELE-
COMMUNICATIONS SERVICES: $50.00 per month
NOTICES: All notices are to be sent to:
Xx. Xxxxx Xxxxxxxxxx
The Xxxxxx Manufacturing Co., Inc.
000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Upon execution of this lease, Xxxxxx shall deliver to Landlord the sum of
$2,096.00 representing the additional security deposit as more particularly set
forth in Paragraph 6 of the Lease.
The San Francisco Mart, by this Agreement, leases to the Tenant the
Premises described above for the terms and conditions contained herein and in
the attached Lease which is incorporated by reference in and made a part of this
Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year appearing next to each signature below.
TENANT: LANDLORD:
THE XXXXXX MANUFACTURING WESTERN MART CO., a California limited
COMPANY, INC. partnership dba SAN FRANCISCO MART
By:______________________________ By:___________________________________
Its: Marketing Manager Its: Executive Director
Date: May 8, 1996 Date: May 21, 1996
SAN FRANCISCO MART
LEASE
This Lease is made with reference to the attached Basic Lease Terms which
are hereby incorporated by reference in this Lease. The parties further agree:
1. Leased Premises. Landlord leases to Tenant the premises as designated in
the Basic Lease Terms and as shown on the floor plan attached hereto as Exhibit
A.
2. Term. The Commencement Date and Expiration Date of the Lease term are
the dates set forth on the Basic Lease Terms. For purposes of this Lease, a
"Lease Year" means the twelve-month period beginning on the first day of the
month in which the term of this Lease commences and each twelve-month period
thereafter until the termination of this Lease. If for any reason Landlord
cannot deliver possession of the Premises to Tenant on the aforesaid
commencement date, this Lease shall not be void or voidable nor shall Landlord
be liable to Tenant for any such delay, but the commencement of the term of this
Lease shall be postponed until such possession can be delivered and the
expiration date of the term shall be similarly extended.
3. Rent. Tenant shall pay to Landlord throughout the Term as rental for the
use and occupancy of the Premises, at the times and in the manner provided in
this Lease, the following sums of money (collectively, "Rent"):
(a) Base Rent. Tenant shall pay to Landlord monthly rent ("Base Rent")
during the first Lease Year of the Term, without offset, deduction or
demand, payable in advance on or before the first day of each and every
calendar month the sum as set forth in the Basic Lease Terms.
On each anniversary of the Lease Commencement Date, Base Rent shall be
increased to an amount equal to the greater of (i) one hundred five percent
(105%) of the Base Rent applicable during the preceding Lease Year; or (ii)
the product obtained by multiplying the Monthly Rent in effect just prior
to the Adjustment Date by a fraction, the numerator of which shall be the
Consumer Price Index for the second month preceding the Adjustment Date
(for example, if the first Adjustment Date is July 1, 1995, then May, 1995)
and the denominator of which shall be the Consumer Price Index for the same
month one year before (for example, if the first Adjustment Date is July 1,
1995, then May, 1994) which fraction is hereinafter referred to as the "CPI
Fraction."
The term "CPI" means the Consumers Price Index, All Urban Consumers,
San Francisco-Oakland-San Xxxx, All Items (1982-1984 = 100), as published
by the United States Department of Labor, Bureau of Labor Statistics. If
publication of the CPI by any governmental or private agency is
discontinued or if it is so modified that it does not accurately reflect
the changes in consumer prices, then the Landlord and Tenant shall use such
other index as is then generally recognized and accepted for similar
determination of changes in consumer prices. If the CPI is revised, it
shall be converted in accordance with the conversion factor published by
the Bureau of Labor Statistics or any other governmental agency then
publishing same.
If the Term commences on other than the first day of a calendar month
or ends on other than the last day of a calendar month, the first or last
payment of Base Rent shall be prorated on a daily basis.
(b) Additional Rent. Tenant shall pay, as additional rent ("Additional
Rent"), all sums of money required to be paid to Landlord pursuant to this
Lease, including, without limitation, Paragraphs 3(c), 4,5,7, 8(b),14,
21(c), 24(a), (b) and (e), 25, 28 and 31 below, and all other sums of money
or charges required to be paid by Tenant under this Lease in addition to
Base Rent, whether or not designated as "Additional Rent." If such amounts
or charges are not paid at the time provided in this Lease, they shall
nevertheless be collectible as Additional Rent with the next installment of
Base Rent thereafter falling due, but nothing contained in this Lease shall
be deemed to suspend or delay the payment of any amount of money or charge
at the time the same becomes due and payable under this Lease, or limit any
other remedy of Landlord.
(c) Payment; Late Charge. All Monthly Rent and all Additional Rent
shall be payable without any offset, deduction, prior notice or demand
whatsoever. If any Monthly Rent or Additional Rent due under this Lease is
not received by Landlord on or before the tenth (10th) day after the due
date thereof, Tenant shall pay the Landlord a late charge as specified in
the Basic Lease Terms. Xxxxxx agrees that Xxxxxx's failure to make timely
payments of Base Rent and Additional Rent will result in Landlord's
incurring additional expenses including, but not limited to, sending out
notices of delinquency, computing interest, and segregating delinquent sums
from non-delinquent sums on all accounting, rental and data processing
records, and in loss to Landlord of the use of the money due. Accordingly,
Xxxxxx acknowledges that this late charge represents a fair and reasonable
estimate of the cost that Landlord will incur by reason of Tenant's failure
to meet its financial commitment to Landlord in a timely manner. The
provisions of this Subparagraph 3(c) shall not be construed to grant Tenant
a grace period. Notwithstanding the foregoing, Landlord reserves the right
to increase the aforesaid Late Charge at any time and from time to time by
delivering written notice to Tenant specifying the amount of such increase.
In the event Landlord notifies Tenant as aforesaid, the Late Fee set forth
in the Basic Lease Terms shall be deemed automatically amended without the
necessity of the parties executing a formal Lease amendment or otherwise
modifying the Basic Lease Terms. Without limiting the generality of the
foregoing, Landlord may increase the Late Charge (i) due to Tenant's
repeated failure to pay Rent as and when due; (ii) as a result of overall
increases in interest rates; and (iii) in order to maintain consistency
with prevailing building management practices in San Francisco, California.
4. Operating Expenses. In addition to Monthly Rent as provided in Paragraph
3 above, Tenant shall pay to Landlord, as Additional Rent, and in addition to
any and all other charges payable by Tenant under this Lease Tenant's share of
operating expenses as provided in this Paragraph 4 on the first day of each
month during the term of this Lease beginning on the first such date after the
commencement of this Lease. During the first Lease Year, such monthly Additional
Rent shall be in an amount equal to $ N/A multiplied by the number of square
feet in the Premises. Thereafter, the monthly Additional Rent shall be adjusted
effective as of each Adjustment Date to equal the product of the additional rent
in effect just prior to the Adjustment Date and the applicable CPI Fraction;
provided, however, that in no event shall the adjusted Additional Rent be less
than 105% of the Additional Rent in effect just prior to the Adjustment Date.
Tenant and Landlord both acknowledge and agree that, although the foregoing
Additional Rent is intended to defray Landlord's expenses of owning and
operating the Building, the foregoing provisions may result in Additional Rent
that varies from the actual ownership and operating expenses incurred by
Landlord with respect to the Building, and that such provisions shall in any
event be binding on the parties. Landlord shall have the same remedies for a
default in the payment of Additional Rent pursuant to this Paragraph 4 as for a
default in the payment of Monthly Rent.
5. Electricity. Tenant shall also pay Landlord for electricity provided to
the Premises and the Building as follows:
(a) If the Premises are separately metered, Tenant shall pay for
electricity as measured by the Individual meter serving the Premises, and
at the current rate specified from time to time by Pacific Gas and Electric
Company. In addition, Tenant shall pay to Landlord monthly, as Additional
Rent, an administrative and billing fee, which rate may be adjusted from
time to time;
(b) If the Premises are not separately metered, Tenant shall pay for
electricity on the first day of each month during the term of this Lease
beginning on the first such date after the commencement of this Lease in
the amount based upon Xxxxxx's electricity use classification at a rate
deemed reasonable by the Landlord.
Landlord reserves the right to change Xxxxxx's use classification in
its sole and absolute discretion upon thirty (30) days written notice to
Xxxxxx. As of each Adjustment Date, Tenant's electricity payment obligation
under this subparagraph (b) shall be increased by the percentage by which
Landlord's per kilowatt cost of electricity has increased due to rate
increases imposed by the utility company.
(c) Notwithstanding anything to the contrary contained in this Lease,
at any time during the term of this Lease Landlord shall have the right, in
Landlord's sole and absolute discretion, either to (i) install an
individual electrical meter in the Premises if the Premises are not
presently metered, or (ii) remove any electrical meter presently serving
the Premises and charge Tenant for its electrical usage pursuant to
Paragraph 5(b) above.
(d) Landlord shall have the same remedies for a default in the payment
for electricity pursuant to this Paragraph 5 as for a default in the
payment of Monthly Rent.
6. Security Deposit. Upon execution of this Lease, tenant shall pay the
Security Deposit to secure the full performance and observance of each and all
of the provisions of this Lease. If Tenant defaults in any of its obligations
under this lease, Landlord may use, apply or retain the whole or any part of the
security deposit (a) to the extent of any sum due Landlord, or (b) to make any
required payment on Tenant's default, or (c) to compensate Landlord for any
expense or damage caused by Tenant's default. Upon Landlord's demand, Tenant
shall promptly pay to Landlord a sum equivalent to the amount by which the
security deposit was so depleted. It is understood that Landlord is not a
trustee of the deposit and that Landlord may commingle it with other funds. Said
deposit or so much thereof as remains after Tenant's obligations and liabilities
to Landlord hereunder have been satisfied shall be refunded to Tenant, without
interest, upon the termination of this Lease.
7. Keys. Tenant shall not copy or reproduce any keys to the Building or
Premises provided to Tenant by Landlord and shall return all such keys
immediately upon the termination of this Lease. Upon the execution of this
Lease, Tenant shall pay Landlord a key charge as specified in the Basic Lease
Terms.
8. Use of Premises, Etc.
(a) Use. Tenant will use and occupy the Premises for exhibiting and
selling goods, wares and merchandise at wholesale only and related general
office use and for offering services related to the residential home
furnishings or contract furnishings industry.
(b) Hours, Continuous Operation. Tenant agrees to maintain in the
Premises a reasonably comprehensive sample display of its products and to
keep the Premises fully lighted and open for business with adequate
representation in attendance from 9:00 a.m. to 5:00 p.m. on Monday through
Friday of each week (excepting holidays) and every business day of each
seasonal market exhibition period, and on such additional days or for
additional hours as Tenant may desire. Notwithstanding the foregoing,
Tenant shall have the right to close on legal holidays and also to
temporarily close for business on the Premises for a period not to exceed
thirty (30) days for refurbishing the Premises not more than once during
the Term. If Tenant shall breach the foregoing covenant, Landlord may, in
addition to any other remedies which Landlord may have under this Lease or
applicable law, impose a penalty of $50.00 per day, which sum shall be
payable by Tenant to Landlord as Additional Rent hereunder.
(c) Layout. Tenant's layout of the Premises and the manner of
displaying Tenant's goods, merchandise and services shall be subject to
Landlord's reasonable approval from time to time, and Landlord shall have
the right to disapprove any layout or display that detracts from the
appearance of a first-class high quality design showroom or which is
inconsistent in any way with the overall plan or design of the Building or
the area thereof contiguous to the Premises.
(d) Name. Tenant shall not, without the prior consent of Landlord, use
the words "San Francisco Mart" or "SFM" for any purpose other than as the
address of the business to be conducted by Tenant in the Premises.
(e) Abandonment. Tenant shall not vacate or abandon the Premises at
any time during the Term of this Lease, and if Tenant shall abandon, vacate
or surrender the Premises, or be dispossessed by process of law or
otherwise, any personal property belonging to Tenant and left on the
Premises shall be deemed to be abandoned, at the option of Landlord.
9. Access.
(a) Premises shall be permitted by Tenant only to Tenant's employees,
retail dealers and to buyers, employees and agents doing business with
Tenant and invitees of Tenant, but not to the general public. Landlord
reserves the right to exclude from the Building and the Premises any person
whom it may consider an improper person or whose presence it considers
detrimental to the Building or to Landlord or to any other tenants.
(b) Notwithstanding anything to the contrary in this Paragraph 9 and
in addition to the rights granted to Landlord pursuant to Paragraph 13(c)
below, Landlord may enter the Premises at reasonable times during the
regular business hours of Tenant to (i) inspect the Premises; (ii) exhibit
the Premises to prospective purchasers, mortgagees or tenants; (iii)
determine whether Tenant is complying with all its obligations under this
Lease; (iv) supply any service to be provided by Landlord to Tenant under
this Lease; (v) post notices of nonresponsibility and (vi) post "for Lease"
signs of reasonable size upon the showroom windows of the Premises during
the last one hundred twenty (120) days of the Term. A designated
representative of Landlord shall at all times have and retain a key to
unlock all of the doors, in, on and about the Premises (excluding Tenant's
vaults, safes and similar areas designated in writing by Tenant in advance)
and Landlord shall have the right to use any and all means which Landlord
may deem proper to open said doors in an emergency in order to obtain entry
to the Premises, and any entry to the Premises obtained by Landlord by any
means, or otherwise, shall not under any circumstances be construed or
deemed to be a forcible or unlawful entry into or a detainer of the
Premises or an eviction, actual or constructive of Tenant from the
Premises, or any portion thereof.
10. Rules and Regulations. Tenant shall faithfully observe and comply with
the Rules and Regulations annexed to this Lease and all reasonable modifications
of and additions thereto from time to time put into effect by Landlord. Landlord
shall not be responsible to Tenant for the non-performance by any other tenant
or occupant of the Building of any of these Rules and Regulations.
11. Prohibited Uses. The Premises shall not be used except for the purposes
hereinabove specified. Tenant shall not do or permit anything to be done in or
about the Premises, nor bring nor keep anything therein which will in any way
increase the rate of fire insurance upon the Building or any of its contents, or
cause any cancellation of insurance policies covering the Building or its
contents, or which shall in any way conflict with any law, ordinance, rule or
regulation affecting the occupancy and use of the Premises, which is or may
hereafter be enacted or promulgated by federal, state, county or municipal
authority, or in any way obstruct or interfere with the rights of other tenants
of the Building, or injure or annoy them, nor use, nor allow the Premises to be
used for any other purpose or in a manner which would constitute a breach by
Landlord under any other lease in effect at the Building. No auction, fire,
bankruptcy or going out of business sale shall be conducted on the Premises.
12. Condition of Premises. Landlord shall deliver the Premises to Tenant in
their current condition, "as is." Landlord makes no representation or warranty
as to the condition of the Premises, including, without limitation, the
compliance of the Premises with applicable building codes or other laws, the
condition of any improvements on the Premises, or the suitability of the
Premises for Tenant's particular use. Tenant represents and warrants that prior
to its signing this Lease it has inspected the Premises and agrees that the
Premises are fit for all of Tenant's desired purposes.
13. Alterations and Repairs.
(a) Tenant shall not make or suffer to be made any alteration,
addition or improvement to or of the Premises, or any part thereof, without
the prior written consent of Landlord, which may be granted or withheld in
Landlord's sole and absolute discretion, any alteration, addition or
improvement to or of the Premises made by Tenant, including without
limitation any partitions (movable or otherwise), carpeting or floor
covering, or lighting fixtures, shall at once become a part of the Building
and belong to Landlord. Movable furniture and equipment and trade fixtures,
however, shall remain the property of Tenant. Landlord specifically
reserves the right to designate the color and type of draperies or other
window coverings on all exterior windows. If Landlord consents to the
making of any alteration, addition or improvement to or of the Premises by
Tenant, the same shall be made by Tenant at its sole cost and expense. At
Landlord's election, any or all of such alterations, additions and
improvements, including, without limitation, flooring. Lighting and wall
treatments, shall remain on the Premises at the end of the term hereof,
without compensation to Tenant. If Landlord elects to permit Tenant to
remove any or all of such alterations, additions, or improvements, Tenant
shall, at Tenant's sole cost, restore the Premises to their condition
immediately prior to installation thereof.
(b) Tenant, at its sole expense, shall at all times during the term
hereof keep the Premises in good and sanitary order, condition and repair,
damage thereto by fire, earthquake, act of God or the elements excepted,
and Tenant hereby waives all rights under and benefits of Subsection 1 of
Section 1932 and Sections 1941 and 1942 of the California Civil Code and
under any similar law, statute or ordinance now or hereafter in effect.
Upon the expiration or sooner termination of the term hereof, Tenant shall
surrender the Premises and (unless designated by Landlord to be removed in
accordance with the preceding Paragraph A), all repairs, alterations,
additions and improvements thereto to Landlord in the same condition as
when received, ordinary wear and tear and damage by fire, earthquake, act
of God or the elements excepted.
(c) Landlord shall at all times have the right without notice to enter
the Premises to inspect the same and to alter, improve or repair the
Premises and any portion of the Building, without abatement of rent, and
may for that purpose erect, use and maintain scaffolding, pipes, conduits
and other necessary structures in and through the Premises. Tenant hereby
waives any claim for damages for any injury or inconvenience to or
interference with Xxxxxx's business or any loss of occupancy or quiet
enjoyment of the Premises by reason of any such entry and activity on the
Premises, except that the foregoing waiver shall not apply to the
negligence or willful misconduct of Landlord. It is specifically understood
and agreed that Landlord has no obligation and has made no promise to
alter, add to, remodel, improve, repair, decorate or paint the Premises or
any part thereof and that no representations respecting the condition of
the Premises or the building have been made by Landlord to Tenant except as
specifically set forth herein.
(d) In the event Tenant shall make alterations, additions or
improvements to the Premises either of a structural or non-structural
nature in any amount whatsoever, then all labor and materials shall be
performed and supplied only by licensed contractors or mechanics approved
in writing by Landlord in its sole and absolute discretion, under contracts
approved in writing by Landlord, and pursuant to plans and specifications
approved in advance by Landlord. In any event, any and all work (1) shall
be done at Tenant's sole expense and in such manner as not to disrupt
unreasonably existing Building operations or disturb existing tenants and
occupants of the Building; (2) shall comply with all applicable laws,
rules, orders, permits, authorizations, and governmental requirements and
orders, including without limitation the Americans with Disabilities Act
("ADA") and any similar California legislation including without limitation
California Government Code Section 4450 et seq., California Health & Safety
Code Section 18,951 et seq. and Section 19952 et seq., and California Civil
Code Section 51 and 54.1 (all of the foregoing being hereafter referred to
as "Accessibility Legislation"), the rules and regulations of any Board of
Fire Underwriters responsible for the geographic area in which the Premises
are located, and any and all laws governing the removal or encapsulation of
any asbestos-containing material ("ACM"); (3) shall be made promptly and in
good workmanlike manner using prime quality materials and in full
conformance4 with the plans and specifications approved by Landlord; (4)
shall not cause any damage to, or interfere with Landlord's ability to
provide services to, any portion of the Building, and (5) shall be
performed by licensed and bonded contractors reasonably approved by
Landlord. Without limiting the generality of the foregoing, in the event
Tenant undertakes any alterations or repairs pursuant to this Paragraph 13,
whether in connection with the construction of Tenant's encapsulation of
any ACM in or about the Premises, the reinforcement or retrofit of the
Premises to comply with any earthquake hazard reduction program or similar
program now in effect or which may hereafter come into effect, the
installation, repair, upgrade, or replacement of sprinkler systems and
other life safety requirements in the Premises, and compliance with all
applicable provisions of the ADA and other California Accessibility
Legislation, whether or not such compliance involves the making of further
alterations, additions or repairs outside of the Premises.
(e) Xxxxxx agrees that it will not at any time, either directly or
indirectly, use or permit the use of any contractors or labor or material
in the Premises if such use would create any difficulty with other
contractors or labor engaged by Tenant or Landlord or others in the
construction, maintenance or operation of the Building or any part thereof.
(f) If Tenant fails to comply with any provision of this paragraph,
Landlord in addition to any other remedy herein provided, may require
Tenant to cease all work being performed by or on behalf of Tenant and
Landlord may deny access to the Premises to any person performing work in
or supplying materials to the Premises.
14. Cleaning and Maintenance. Tenant shall be responsible for cleaning the
interior of the Premises, including the interior of all windows therein.
Landlord shall not be responsible for supplying janitorial services to the
Premises, but shall clean, maintain and repair solely the common areas of the
Building, such as the hallways, elevators, entrance and bathrooms, and shall
remove all trash from the Building provided that Tenant places a sealed
receptacle containing its trash in the hallway outside the Premises at the close
of each business day. In addition, Landlord may no more than two times each
year, cause the exterior of the windows in the Building to be cleaned and Tenant
agrees to reimburse Landlord for its cost thereof in an amount proportionate to
the ratio that the number of exterior windows in Tenant's Premises gears to the
total number of exterior windows in the Building.
15. Signage. Tenant shall comply with such regulations as may from time to
time be promulgated by Landlord governing signs, advertising material or
lettering of all tenants in the Building, provided the Tenant shall not be
required to change any sign or lettering that was in compliance with applicable
regulations at the time it was installed or placed in, on or adjacent to the
Premises. Except as provided above, without the prior reasonable consent of
Landlord, Tenant shall not place or permit to be placed (1) any sign,
advertising material or lettering upon the exterior of the Premises or (2) any
sign, advertising material or lettering upon the exterior or interior surface of
any door or window or at any point inside the Premises from which the same may
be visible from outside the Premises. Tenant acknowledges and agrees that it
shall be reasonable for Landlord to withhold its consent to any signage,
advertising or lettering not in conformance with Landlord's reasonable
regulations or not in conformance with the standard style of signage in use at
the Building from time to time. Upon request of Landlord, Tenant shall
immediately remove any sign, advertising material or lettering which Tenant has
place in, on or about the Premises, contrary to the provisions of this Section
15, and if Tenant fails to do so, Landlord may enter upon the Premises and
remove the same at Tenant's expense.
16. Liens. Tenant shall keep the Premises and the property in which the
Premises are situated free from any liens arising out of any work performed,
materials furnished or obligations incurred by Tenant or at the insistence of
Tenant or incurred by or at the insistence of any subtenant of Tenant.
17. Insurance. Tenant, at Tenant's expense, shall keep in force during the
term hereof comprehensive broad form general liability insurance with a combined
single limit of $1,500,000 for each occurrence for injuries to or death of
persons occurring in, on or about the Premises or the Building, and property
damage. The policy or policies for such insurance shall name Landlord as an
additional insured, and shall insure any liability of Landlord, contingent or
otherwise, as respects acts or omissions of Tenant, its agents, employees or
invitees or otherwise, by any conduct or transactions of any of said persons in
or about or concerning the Premises, including any failure of Tenant to observe
or perform any of its obligations hereunder; shall be issued by an insurance
company authorized to transact business in the State of California; and shall
provide that the insurance effected thereby shall not be canceled, except upon
ten (10) days prior written notice to Landlord, Tenant shall deliver to Landlord
a certified copy of all insurance policies required by this Lease and carried by
Xxxxxx.
Tenant agrees that insurance carried by it against loss or damage by fire
or other casualty shall contain a clause whereby the insurer waives its right to
subrogation against Landlord.
18. Damages By Fire, Etc. In the event the Premises or the Building are
damaged by fire or other casualty, Landlord shall repair the same provided such
repairs can be made within ninety (90) days under the laws and regulations of
the state, federal, county and municipal authorities and this Lease shall remain
in full force and effect except that Tenant shall be entitled to a proportionate
abatement in rent while such repairs are being made, such reduction to be based
prorata to the extent to which the making of such repairs shall interfere with
the use and occupancy of Tenant in the Premises as reasonably determined by
Landlord. If such repairs cannot be made within ninety (90) days, Landlord shall
have the option either (a) to repair or restore such damage, this Lease
continuing in full force and effect, but the rent to be proportionately abated
as provided in this paragraph, or (b) to give notice to Tenant at any time
within thirty (30) days after the occurrence of such damage terminating this
Lease as of a date to be specified in such notice, which date shall be not less
than thirty (30) nor more than sixty (60) days after giving such notice. In the
event of the giving of such notice, this Lease shall expire and all interest of
Tenant in the Premises shall terminate on such date as specified in such notice,
and the rent, reduced by any proportionate reduction based upon the extent, if
any, to which the damage interfered with the use and occupancy of Tenant, shall
be paid to the date of such termination, Landlord agreeing to refund to Tenant
any rent therefore paid in advance for any period of time subsequent to such
date. Landlord shall not be required to repair any injury or damage by fire or
other cause, or to make any repairs or replacements of any paneling,
decorations, partitions, railings, ceilings, floor covering, fixtures or any
other property installed in the Premises by Tenant. The provisions of Section
1932, Subdivision 2, and Section 1933, Subdivision 4 of the Civil Code of
California are hereby waived by Xxxxxx.
19. Condemnation. Should the whole or any part of the Premises be condemned
and taken by any competent authority for any public or quasi-public use or
purpose, all awards payable on account of such condemnation and taking shall be
payable to Landlord, and Tenant hereby waives all interest in or claim to said
awards or any part thereof. If the whole of the Premises is condemned and taken,
this Lease shall thereupon terminate. If a part only of the Premises is
condemned and taken and the remaining portion thereof is not reasonable suitable
for the purposes for which Tenant has leased the Premises, Tenant shall have the
right to terminate this Lease. If a part only of the Premises is condemned and
taken and the remaining part thereof is reasonably suitable for the purposes for
which Tenant has leased the Premises, this Lease shall continue but the rental
shall be reduced in an amount proportionate to the value of the portion taken as
it relates to the total value of the Premises.
20. Compliance with Law; Etc. Tenant shall not do or permit to be done in,
on or about the Premises, nor bring or keep or permit to be brought or kept
therein, anything which is prohibited by or will in any way conflict with any
law, statute, ordinance or governmental rule or regulation now in force or which
may hereafter be enacted or promulgated, or which is prohibited by Landlord's
fire insurance policy or will in any way increase the existing rate of or affect
any fire or other insurance upon the Building or any of its contents, and shall
promptly comply with all such legal and insurance requirements at its sole
expense insofar as they pertain to the Premises. Tenant shall not do or permit
anything to be done in or about the Premises which will in any way interfere
with the rights of other tenants of the Building, or injure or annoy them, or
use or allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Tenant cause, maintain or permit any nuisance
in the Premises or commit any waste in the Premises. Tenant shall at its sole
cost and expense promptly comply with all laws, statutes, ordinances and
governmental rules, regulations or requirements now in force or which may
hereafter be in force, including, without limitation, the ADA and California
Accessibility Legislation; with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted; with any
direction or occupancy certificate issued pursuant to any law by any public
officer or officers; as well as with the provisions of all recorded documents
affecting the Premises, insofar as they relate to or affect the use or occupancy
of the Premises, excluding requirements of structural changes not related to or
affected by improvements made or for Tenant.
21. No Assignment or Subletting.
(a) Tenant shall not transfer, assign, sublet, enter into license or
concession agreements, or hypothecate this Lease or the Tenant's interest
in and to the Premises or permit the use of the Premises or any party other
than the Tenant in whatever part, voluntarily, involuntarily or by
operation of law (collectively "Assignment") without first obtaining
Landlord's consent and otherwise complying with all the terms and
conditions of this Paragraph 21. Such consent shall not be unreasonably
withheld by Landlord. Any Assignment without Landlord's consent shall be
void and shall constitute an Event of Default under this Lease. Xxxxxx
agrees to pay for Xxxxxxxx's reasonable attorneys' fees and other
administrative costs incurred in conjunction with the processing and
documentation of and response to any request for consent to an Assignment,
the estimated amount of which (as determined by landlord) shall be paid by
Tenant concurrently with the submission of any request for Landlord's
consent to an Assignment.
(b) If Tenant desires at any time to enter into an Assignment of this
Lease, Tenant shall first give written notice to Landlord of its desire to
do so, which notice shall be accompanied by the payment described in the
last sentence of subparagraph (a) above and shall contain (1) the name of
the proposed assignee, subtenant or occupant (collectively "Assignee"); (2)
the nature of the proposed Assignee's business to be carried on in the
Premises; (3) the terms and provisions of the proposed Assignment; and (4)
such financial information regarding both Tenant and the proposed Assignee,
including a current balance sheet and income statement for each, as
Landlord may request; and (5) such operating histories and statements of
prior experience as Landlord may reasonably notice and any additional
information requested by Landlord, Landlord may, by written notice to
Tenant, elect to (a) consent to the Assignment, or 9b) disapprove the
Assignment, or 9c) terminate this Lease upon sixty (60) days written notice
to Tenant with respect to that portion of the Premises covered by the
proposed Assignment. Tenant further acknowledges that the use of the
Premises shall be limited to the uses described in Paragraph 8 above, and
it shall be deemed reasonable for Landlord to withhold its consent to any
other use or to a use which while it shall be deemed reasonable for
landlord to withhold its consent to any other use or to a use which while
complying with Paragraph 8 above is incompatible with existing uses of
other tenants in the building. It shall also be deemed reasonable for
Landlord to withhold its consent to any Assignment to an Assignee whose net
worth does not equal or exceed Tenant's net worth as of the date of this
Lease or the date the request for consent is submitted, whichever is
greater, or to any Assignee that is an existing tenant of the Building. The
foregoing shall not limit in any way Landlord's right to withhold its
consent to an Assignment for any other reason.
(c) In the event Landlord does consent to any Assignment for which
Tenant receives any compensation or consideration of any kind in excess of
the rents and other charges payable hereunder and any leasing commissions
and tenant improvement costs incurred by Tenant in connection with such
Assignment, then Tenant shall pay over to Landlord ninety percent (90%) of
such excess compensation or consideration as and when received. In the
event of a sublet, Tenant shall pay such sums to Landlord each month as
received, and in the event of an assignment of this Lease as part of a sale
of other assets by Tenant, the total consideration received by Tenant shall
be fairly and reasonably allocated over all assets sold, and Tenant shall
disclose to Landlord all information necessary to enable Landlord to
determine such allocation.
(d) For purposes of this paragraph 21, the term "Assignment" shall
include any sale or other transfer, alone or together with sales or other
transfers previously made, including by consolidation, merger, or
reorganization, of a majority of the voting stock of Tenant or of any
parent corporation that controls Tenant (if Tenant is a corporation) or of
a majority of the general and/or limited partnership interests in Tenant
(if Tenant is a partnership), and shall also include any management
agreement or other contract or arrangement of any kind, however named,
pursuant to which a majority of any profits realized from the conduct of a
business on the Premises shall inure to the benefit of any other person or
pursuant to which effective control or responsibility for the Premises is
transferred or delegated to any person.
(e) Regardless of Landlord's consent, no Assignment shall release
Tenant from Tenant's obligation under this Lease or after the Liability of
Tenant to pay the rent and to perform all other obligations to be performed
by Tenant under this lease. The acceptance of any Rent by Landlord from any
other person shall not be deemed to be a waiver by Landlord of any
provision of this Lease. Consent to one Assignment shall not be deemed
consent to any subsequent Assignment. In the event of default by any
Assignee of Tenant or any successor of Xxxxxx in the performance of any of
the terms of this Lease, Landlord may proceed directly against Tenant
without the necessity of exhausting remedies against such Assignee or
successor.
(f) Each Assignment to which Xxxxxxxx has consent shall be by an
instrument in form satisfactory to Landlord and shall be executed by the
Assignor and the Assignee; and each Assignee shall agree in writing for the
benefit of landlord to assume, to be bound by, and to perform the terms,
covenants and conditions of this Lease to be done, kept and performed by
Xxxxxx. No Assignment to which Xxxxxxxx has consented shall be effective
until an executed copy of such instrument of Assignment has been received
and accepted by Landlord.
22. Indemnification and Release. Landlord, its partners, officers,
directors, shareholders, trustees, agents and invitees shall not be liable to
Tenant and Tenant hereby waives all claims against Landlord and all such persons
for any injury to or death of any persons or damage to or destruction of
property in or about the Premises or the Building by or from any cause
whatsoever, including, without limitation, theft, burglary, mysterious
disappearance, gas, fire, oil, electricity or leakage of any character from the
roof, walls, basement or other portion of the Premises or the Building. Tenant
shall hold Landlord and its partners, officers, directors, shareholders,
trustees, agents and invitees (collectively "Indemnified Parties") harmless from
costs and expenses, including reasonable attorneys' fees, in connection
therewith, arising out of an injury to or death of any person or damage to or
destruction of property occurring in, on or about the Premises, or any part
thereof, from any cause whatsoever; and if occurring in, on or about the
Building (including without limitation, elevators, stairways, parking areas,
passageways or hallways) the use of which Tenant may have in common with other
tenants of the Building, or elsewhere in, on or about the Building or the
Premises, when such injury or damage shall be caused in whole or in part by the
act, neglect, default or omission of any duty by Tenant, its agents,
contractors, employees or invitees or otherwise by any conduct or transactions
of any of said persons in or about or concerning the Premises or the Building,
including without limitation any alterations, additions or repairs performed by
Tenant or any other failure of Tenant to observe or perform any of its
obligations hereunder.
23. Default. Tenant shall deemed to be in default under this Lease upon the
occurrence of any of the following events ("Event of Default"): (a) Tenant shall
fail to pay any Monthly Rent or Additional Rent when and as the sums become due
and payable; (b) Tenant shall fail to pay any other sum when and as the same
becomes due and payable; (c) Tenant shall fail to observe, keep or perform in a
timely manner any of the other terms, covenants, agreements or conditions
contained in this Lease or in the Rules and Regulations described in Paragraph
10 above and on the part of Tenant to be observed or performed; (d) Tenant shall
file a petition for bankruptcy or become insolvent or make a transfer in fraud
of creditors, or make an assignment for the benefit of creditors, or take or
have taken against Tenant any proceedings of any kind under any provision of the
Federal Bankruptcy Act or under any other insolvency, bankruptcy or
reorganization act and, in the event any such proceedings are involuntary,
Tenant is not discharged from the same within sixty (60) days thereafter; (e) a
receiver is appointed for a substantial part of the assets of Tenant and is not
dismissed or discharged within sixty (60) days; (f) Tenant shall vacate or
abandon the Premises; or (g) this Lease or any estate of Tenant hereunder shall
be levied upon by any attachment or execution which is not discharged or bonded
against within thirty (30) days.
24. Remedies Upon Default. Upon the occurrence of any Event of Default
Landlord may, at its option and without any further notice or demand, in
addition to any other rights and remedies given under this Lease or by law, do
any of the following:
(a) Landlord may terminate this Lease. In the event of any such
termination of this Lease, Landlord may then or at any time thereafter,
re-enter the Premises and remove therefrom all persons and property and
gain, repossess and enjoy the Premises, without prejudice to any other
remedies that landlord may have by reason of an Event of Default or of such
termination and, in addition to any other rights and remedies landlord may
have, Landlord shall have all of the rights and remedies of a Landlord
provided by Section 1951.2 of the California Civil Code. The amount of
damages which Landlord may recover in an event of such termination shall
include, without limitation, (1) the worth at the time of award (computed
by discounting such amount at the discount rate of the Federal Reserve Bank
of San Francisco at the time of award plus one percent) of the amount at
the discount rate of rent for balance of the term after the time of award
exceeds the amount of rental loss that Tenant proves could be reasonably
avoided; (2) all reasonable legal expenses and other related costs incurred
by Landlord following and reasonably avoided; (3) all reasonable legal
expenses and other related costs incurred by Landlord following and Event
of Default; (4) all costs incurred by Landlord in restoring the Premises to
good order and condition, or in limitation, any brokerage, commissions)
incurred by Landlord in reletting the Premises. For the purpose of
determining the unpaid rent in the event of a termination of this Lease,
all unpaid Monthly Rent and Additional Rent set forth in this Lease shall
be included.
(b) If Tenant shall abandon or surrender the Premises or be
dispossessed by process of law or otherwise, any property of Tenant left on
the Premises shall be deemed to be abandoned but Tenant shall remain liable
to Landlord for all cost, loss damage and expenses incurred by Landlord for
the removal of such property from the Premises and for the repair of any
damage to the Premises caused by such removal.
(c) Landlord shall have the right to cause a receiver to be appointed
in any action against Tenant to take possession of the Premises and/or to
collect the rents or profits derived from the Premises. The appointment of
such receiver shall not constitute an election on the part of Landlord to
terminate this Lease unless notice of such intention is given to Tenant.
(d) Landlord may elect to keep this Lease in full force and effect
with Xxxxxx retaining the right to possession of the Premises
(notwithstanding the fact that Tenant may have abandoned the Premises), in
which event Landlord, in addition to all other rights and remedies Landlord
may have at law or in equity, shall have the right to enforce all of
Landlord's rights and remedies under this Lease, including but not limited
to the right to recover the installments of rent as they become due under
this Lease. Notwithstanding any such election to have this Lease remain in
full force and effect, Landlord may at any time thereafter elect to
terminate Tenant's right to possession of the Premises and thereby
terminate this Lease for any previous breach or default hereunder by Tenant
which remains uncured or for any subsequent such breach or default.
(e) In addition to and not in Limitation of Landlord's remedies as set
forth in this Paragraph 24, if Landlord shall, during the term of this
Lease, serve Tenant with a 3-day notice to quit after the occurrence of an
Event of Default, then any deferred rent and other monetary concessions,
including without limitation, any Tenant improvement allowance, granted by
Landlord to Tenant shall also become immediately due and payable,
regardless of whether Tenant may have cured or may thereafter cure such
Default.
(f) Nothing contained in this Paragraph 24 shall be construed as
limiting Landlord's right to pursue any other lawful remedy now or
hereafter available to Landlord, including without limitation the remedies
set forth in Sections 1951.2, 1951.3 and 1951.4 of the California Civil
Code, as the same may be amended from time to time, or any related or
successor statutes.
25. Xxxxxxxx's Right to Cure Default. All covenants and agreements to be
performed by Tenant under this Lease shall be at its sole cost and expense and
without any abatement of Monthly Rent or Additional Rent, unless otherwise
specified in this Lease. If Tenant shall fail to pay any sum or money, other
than Monthly Rent or Additional Rent, required to be paid by Tenant pursuant to
this Lease or shall fail to perform any other act on Tenant's part to be
performed under this Lease, Landlord may, but shall not be obligated so to do,
and without waiving or releasing Tenant from any obligations of Tenant, make any
such payment or perform any such other act on Tenant's part to be made or
performed as provided in this Lease. All sums so paid by Xxxxxxxx and all
incidental costs shall be deemed Additional Rent hereunder and shall be payable
to Landlord on demand.
26. Termination. Upon any termination of this Lease, whether by lapse of
time or otherwise, Xxxxxx shall surrender possession and vacate the Premises
immediately, and deliver possession thereof to Landlord. Any and all property
which Tenant is entitled to remove from the Premises at the expiration or other
termination of this Lease shall become the property of Landlord unless promptly
removed by Tenant.
27. Holding Over. Any holding over after the expiration of the term of this
Lease, with the consent of Landlord shall be deemed a month-to-month tenancy at
twice (300%) of the rental in effect for the last month immediately preceding
such expiration or termination and upon each and every one of the terms,
conditions and covenants of this Lease. In the event of month-to-month tenancy,
Landlord may cancel the same upon seven (7) days with notice left at the
Premises and Tenant shall have the privilege of canceling same upon thirty (30)
days notice to Landlord, all notices to be in writing.
28. Utilities and Services.
(a) Electricity, HVAC and Elevator. Provided that Tenant shall not be
in default hereunder, Landlord agrees to furnish to the Premises
electricity suitable for the intended use of the premises subject to
compliance with any governmental rules or restrictions regarding energy
conservation or other matters and shall, during the ordinary business hours
of 8:00 a.m. to 6:00 p.m., Monday through Friday, furnish heat (and in Mart
2 only, air conditioning) as required in Landlord's judgment for the
comfortable use and occupation of the Premises. Normal elevator service
shall be provided in common to tenants of the Building during the above
hours, and shall be subject to call at all times when normal service is not
provided.
(b) Internal Telecommunications System. Landlord shall also furnish
building-wide telecommunications service to the Premises through a building
switchboard for incoming calls only. Such service may include, without
limitation, delivery of directory information regarding tenants to
interested parties. Xxxxxx agrees to pay for same at a rate determined by
the landlord, which rate may be adjusted from time to time cover Xxxxxxxx's
cost and overhead in connection therewith. Tenant acknowledges that the
building-wide telecommunications system is essential for the smooth
operations of the Building, and that it is reasonable for the Landlord to
impose a charge for some.
(c) Water. Landlord shall provide water only to the public facilities.
(d) No Liability. Landlord shall not be liable in any manner for
failure to furnish or delay in furnishing any such services in this
Paragraph 28 when such failure to furnish or delay is occasioned, in whole
or in part, by needed repairs, renewals, or improvements, or by any strike,
lockout or other labor controversy, or by an accident or casualty or by the
act or default of Tenant or other parties, or by any cause beyond the
reasonable control of Landlord; nor shall Landlord be liable for any act or
default of employees not authorized by Landlord; and any such failure shall
not be deemed as an actual or constructive eviction of Tenant, nor shall it
in any way release Tenant from the performance of his covenants.
29. Subordination and Estoppel Statements. This Lease shall automatically
be subordinate to any mortgage or deed of trust hereafter placed upon the
Premises, to any and all advances made or to be made thereunder, to the interest
on the obligations secured thereby and to all renewals, replacements and
extensions thereof; provided, however, that (a) in the event of foreclosure of
any such mortgage or deed of trust or exercise of power of sale thereunder,
Tenant shall attorn to the purchaser of the Premises at such foreclosure sale
and recognize such purchaser as the Landlord under this Lease, and (b)
notwithstanding any such foreclosure or sale this Lese shall remain in full
force if Tenant is not in default hereunder. If any mortgagee or beneficiary
elects to have this Lease superior to this mortgage or deed of trust and gives
notice of its election to Tenant, then this Lease shall thereupon become
superior to the lien of such mortgage or deed of trust, whether this Lease is
dated or recorded before or after the mortgage or deed of trust. Tenant shall
promptly execute, acknowledge and deliver to Landlord any subordination or
nondisturbance agreement or other instrument that Landlord may reasonably
request to carry out the intent of this paragraph. If Tenant shall fail to do so
within fifteen (15) days after receipt of Landlord's request, Landlord may
terminate this Lease by written notice to Tenant. Xxxxxx agrees upon request in
writing from Landlord to execute an deliver within ten (10) days to Landlord a
statement in writing certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), and the dates to which
rent has been paid. It is agreed that any such statement may be relied upon by
any prospective purchaser of the Building or the mortgagee, beneficiary or
grantee of any security interest, or any assignee of any thereof covering the
Building. Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant (a) that this Lease is in full force and effect without
modification except as may be represented by Landlord, (b) that there are no
uncured defaults in Landlord's performance, and (c) that no more than two (2)
months rent has been paid in advance as security.
30. No Waiver. Xxxxxxxx's failure to exercise any right or remedy it may
have by reason of any Event of Default shall not constitute a waiver thereof
unless expressly so stated in writing by Landlord; the subsequent acceptance of
rent hereunder shall not be deemed a waiver of any preceding Event of Default
hereunder by Tenant other than the failure to pay the particular rental or
accepted; and the waiver by Landlord or any Event of Default shall not
constitute a waiver of any other Event of Default regardless of knowledge
thereof.
31. Attorneys' and/or Collection Agencies' Fees. In the event it becomes
necessary to enforce this Agreement and collect delinquent sums due, Landlord is
entitled to all actually incurred attorney's fees and costs. Recovery of
attorney's fees will be based upon fees actually incurred rather than reasonable
fees pursuant to a Court's Default schedule.
Moreover, any judgment obtained by Landlord against Tenant shall include
the right to post-judgment incurred attorney's fees as part of the judgment.
Specifically, this contract clause shall not be extinguished by merger into the
judgment. Tenant expressly agrees that the judgment creditor shall be entitled
to reasonable and necessary costs of enforcement of judgment including actually
incurred attorney's fees in accordance with Code of Civil Procedure Section
685.040. This contract clause entitling attorney's fees both pre-judgment and
post-judgment shall be expressly set forth in the judgment. Attorney's fees
incurred in enforcing the judgment shall be included as costs collectable
pursuant to Code of Civil Procedure ("CCP") Section 1033.5(a)(10)(A). The
underlying judgment shall include an aware of attorney's fees to the judgment
creditor for enforcement of a judgment pursuant to said Section
1033.5(a)(10)(A). CCP Section 1033.5(a)(10)(A) states that attorney's fees
incurred fees, when authorized by a contract, are allowable as a cost under CCP
Section 1032.
The judgment creditor shall be entitled to a post-judgment attorney's fees
for the enforcement of the judgment pursuant to CCP Section 685.040 and CCP
Section 1033.5(a)(10)(A) by filing a post-judgment cost memoranda in accordance
with procedures set forth by law. The post-judgment attorney's fees incurred in
enforcing the judgment and requested pursuant to post-judgment cost memoranda
shall be recovered and reflected as a cost in the Writ of Execution.
32. Change of Leased Premises.
(a) Tenant acknowledges and agrees that it is essential to the orderly
and efficient operation of the San Francisco Mart buildings that Landlord
have the right from time to time to relocate tenants in order to achieve
optimum utilization of all space in the San Francisco Mart. Therefore, at
any time after the execution of this Lease, Landlord shall have the right
to move Tenant to another location in either Mart 1 (located at 0000 Xxxxxx
Xxxxxx, Xxx Xxxxxxxxx) or Mart 2 (located at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx). Landlord shall exercise its right to relocate Tenant in the
following manner: (i) the premises to which Tenant is to be relocated (the
"New Premises") shall be selected by Landlord and shall be reasonably
comparable in size, as determined by Landlord in its sole discretion, to
the Premises; (ii) Landlord shall give Tenant at least thirty (30) days
prior written notice of its intent to relocate Tenant and shall identify
the New Premises in said notice; (iii) within ten (10) days after
Landlord's notice of relocation, Tenant may, at its option, terminate this
Lease by delivering written notice to Landlord; and (iv) if Tenant fails to
terminate this Lease as provided in Section (iii) above, the New Premises
shall be substituted for the original Premises, this Lease shall continue
in full force and effect without any other changes, and Landlord shall,
subject to the conditions set forth below, move Tenant's property to the
New Premises. If the relocation occurs after Xxxxxx has taken occupancy of
the Premises, Landlord shall pay the cost of moving Tenant and replacing
(as practicable and less a reasonable allowance for depreciation as
determined by Landlord) all installations and improvements of Tenant which
cannot be moved to the New Premises.
(b) Landlord's obligation to pay for Tenant's relocation shall be
further subject to the following: (i) Tenant shall procure and submit to
Landlord three (3) bids from reputable moving companies for the relocation
of Tenant's furniture, fixtures, equipment and other personal property;
(ii) Landlord shall select one of the three (3) bids, or, in the
alternative, select a bid procured independently by Landlord from any other
reputable moving company; (iii) Tenant shall contract directly with the
moving company selected by Landlord to administer Xxxxxx's relocation; and
(iv) Tenant shall submit any and all claims including without limitation
any breakage, denting, marring, chipping, cracking or other damage to any
showroom objects that occurs as a result of such relocation, directly to
the moving company selected by Landlord and Landlord shall have no
liability or responsibility in connection with any such damage or
destruction.
33. Personal Property Lien. As material consideration for Xxxxxxxx's
entering into this Lease, Tenant hereby grants to Landlord a security interest
for all amounts due from Tenant under this Lease upon all personal property of
Tenant located on or about the Premises. Any such property shall not be removed
(except in the ordinary course of Tenant's business) without the prior written
consent of Landlord, until such time as all amounts due to Landlord under this
Lese shall have been paid in full. Upon the occurrence of any Event of Default
by Tenant hereunder, Landlord shall have the option, in addition to any other
rights or remedies it may have, to enter the Premises and take possession of any
such personal property of Tenant and to sell the same at public or private sale
in accordance with applicable provisions of the California Uniform Commercial
Code, at which sale Landlord or its assigns may purchase such property and apply
the proceeds, less expenses of taking possession and sale, as a credit against
any sums due by Tenant to Landlord hereunder. Any surplus remaining after such
sale shall be paid to Tenant. Simultaneously with the execution of this Lease,
or at such other time as Landlord may request, Tenant shall execute a UCC-1
Financing Statement in form suitable for filing with the California Secretary of
State (or such other filing offices as Landlord may deem appropriate).
34. "Landlord" Defined. The term "Landlord," as used in this Lease, means
only the owner for the time being of the Premises, so that in the event of any
sale of the Premises, the seller shall be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord hereunder, and it shall be
deemed and construed, without further agreement between the parties or between
the parties and he purchaser of the Premises, that such purchaser has assumed
and agreed to carry out any and all covenants and obligations of Landlord
hereunder.
35. Notices. If at any time after the execution of this Lease, it shall
become necessary or convenient for one of the parties hereto to serve any
notice, demand or communication upon the other party, such notice, demand or
communication shall be in writing, shall be deemed given when personally
delivered or forty-eight (48) hours after being deposited with the United States
Post Office, registered or certified mail, return receipt requested, postage
prepaid and (a) if intended for Landlord shall be addressed to San Francisco
Mart, 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
President, and (b) if intended for Tenant shall be addressed to Tenant at the
Premises or to the party at the address set forth in the Base Lease Terms.
36. Choice of Law and Forum. This Lease shall be construed in accordance
with and governed by the laws of the State of California, and any action or
proceeding brought by either party in connection with this Lease shall be
brought in, and the parties hereby submit to the jurisdiction of, the United
States District Court of the Municipal or Superior Court for the City and County
of San Francisco.
37. Time. Time is of the essence of this Lease.
38. Corporate Authority. If Lessee is a corporation, trust, general or
limited partnership, or limited liability company, each individual executing
this Lease on behalf of such entity represents and warrants that he or she is
duly authorized to execute and deliver this Lease on behalf of said entity. If
Lessee is a corporation, trust, partnership or limited liability company, Lessee
shall, within thirty (30) days after execution of this Lease, deliver to Lessor
evidence of such authority satisfactory to Lessor.
39. Brokers. Except as may be expressly set forth herein, each party
represents to the other that no person, firm, corporation or other entity is
entitled to any brokerage commission or finder's fee on account of the execution
and consummation of this Lease. Tenant hereby agrees to indemnify Landlord and
to hold harmless Landlord from any and all claims, losses, damages, costs and
expenses of whatsoever nature, including attorneys' fees and costs of litigation
arising from or relating to any brokerage commissions or finder's fees incurred
by Xxxxxx in connection with this Lease.
40. Modification of Lease. Except as otherwise provided herein, this Lease
may be amended or modified only by a written instrument executed by both
landlord and Xxxxxx.
41. Confidentiality. Tenant hereby agrees, on behalf of its self and its
partners, employees, agents and representatives, that except as required by law,
Tenant shall keep the terms of this Lease confidential and shall not disclose or
reveal any of such terms in any manner, whether orally in writing, to any person
or entity. Tenant may only disclose the economic terms of this Lease to its
accountants and lenders if Tenant obtains an agreement by such persons to treat
such information as confidential.
42. Limitation of Recovery Against Landlord. Tenant acknowledges and agrees
that the liability of Landlord (which for purposes of this Section shall include
all partners, both general and limited, of any partnership, the officers,
directors and shareholders of any corporation, the members of any limited
liability company, and any and all co-tenants or joint-venturers comprising
Landlord) under this Lease shall be limited to its interest in the Building, and
any judgments rendered against Landlord shall be satisfied solely out of the
proceeds of sale of its interest in the Building. No officer, director, partner,
shareholder or member of Landlord shall be named as a party in any suit or
action (except as may be necessary to secure jurisdiction over Landlord) and no
personal judgment shall lie against Landlord. Tenant agrees that the foregoing
covenants and Limitations shall be applicable to any obligation or liability of
Landlord, whether expressly contained in this Lease or imposed by statute or at
common law. The foregoing provisions are not intended to relieve Landlord from
the performance of any of Landlord's obligation under this Lease, but only to
limit the personal liability of Landlord in case of recovery of a judgment
against Landlord.
43. No Partnership. It is expressly understood that Landlord does not, in
any way or for any purpose, become a partner of Tenant in the conduct of its
business, or otherwise, or joint venturer or a member of a joint enterprise with
Tenant.
44. Complete Agreement. There are no oral agreements between Landlord and
Tenant affecting this Lease, and this Lease supersedes and cancels any and all
previous negotiations, arrangements, brochures, agreements and understandings,
if any, between the Landlord and Tenant or displayed by Landlord to Tenant with
respect to the subject matter of this Lease. There are no representations
between Landlord and Tenant other than those contained in this Lease and all
reliance with respect to any representations in solely upon the representations
contained in this Lease.
45. Effectiveness of Lease. This Lease shall not become effective, and
shall not create any rights or obligations of the parties hereto, until one or
more original counterparts hereof have been fully executed and delivered by the
parties and, if required by Landlord, a Guaranty of Lease has been duly executed
and delivered to Landlord.
46. Captions. The captions in this Lease are for convenience only and are
not a part of this Lease and do not in any way limit or amplify the terms and
provisions of the Lease.
47. Miscellaneous. The words "Landlord" and "Tenant" as used herein shall
include the plural as well as the singular. If there be more than one Tenant,
the obligations under this Lease imposed upon Tenant shall be joint and several.
Submission of this instrument for examination or signature by Xxxxxx does not
constitute a reservation of or option for lease, and it is not effective as a
lease of otherwise until execution and delivery by both landlord and Tenant. The
terms, covenants, agreements and conditions herein contained, shall, subject to
the provisions as to assignment apply to and bind the heirs, successors,
executors, administrators and assigns of the parties hereto. If any provision of
the Lease shall be determined to be illegal or unenforceable, such determination
shall not affect any other provision of this Lease and all such other provisions
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year appearing next to each signature below.
TENANT: LANDLORD:
THE XXXXXX MANUFACTURING COMPANY, INC. WESTERN MART CO., a California limited
partnership dba SAN FRANCISCO MART
By:________________________________
Its: Marketing Manager By:___________________________________
Its: Executive Director
Date: May 8, 1996 Date: May 21, 1996
SAN FRANCISCO MART BUILDING RULES AND REGULATIONS
1. Landlord reserves the right to issue passes to all persons, including
tenants and their employees, and to require anyone seeking entry into the
Building to produce a pass.
2. Tenants, their employees and sales personnel shall at all times refrain
from unethical methods of selling their products or services to visitors of the
Building, including soliciting in corridors, loitering in doorways, accosting
buyers in fellow tenants' premises, escorting buyers to other tenants'
showrooms, and participating in sales in other tenants' premises.
3. Sidewalks, halls, passages, exits, entrances, elevators and stairways
shall not be obstructed by Tenants or used by them for any purpose other than
for ingress and egress from their respective premises.
4. The bulletin board or directory of the Building will be provided
exclusively for the display of the name and location of Tenants only and
Landlord reserves the right to exclude any other names therefrom.
5. No Tenant shall obtain for use upon its premises ice, drinking water,
food, beverage, towel or other similar services, or accept barbering or
shoe-shining services in its premises, except from persons authorized by
Landlord, and at hours and under regulations fixed by Landlord.
6. Each Tenant shall see that the doors of its premises are closed and
securely locked and shall observe strict care and caution that all utilities are
entirely shut off before the tenant or its employees leave the premises so as to
prevent waste or damage, and for any default or carelessness the tenant shall
make good all injuries sustained by other tenants or occupants of the Building
or Landlord.
7. No tenant shall alter any lock or install a new or additional lock or
any bolt on any door of its premises without the prior written consent of the
Landlord. If Landlord shall give its consent, the Tenant shall in each case
furnish Landlord with a key for any such lock.
8. Each Tenant, upon the termination of the tenancy, shall deliver to
Landlord all the keys of or to the Building, offices, rooms which shall have
been furnished the Tenant or which the Tenant shall have had made. In the event
of the loss of any keys so furnished by Landlord, Tenant shall pay Landlord
therefor.
9. Upon assignment or sublease of all or a portion of any premises, the
assignee or sublessee shall pay to Landlord an annual service fee in such amount
as Landlord may prescribe from time to time.
10. The toilet room, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown therein, and the
expense of any breakage, stoppage or damage resulting from the violation of this
rule shall be borne by the Tenant who, or whose employees or invitees, shall
have caused it.
11. No Tenant shall use or keep in its premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material or use any
method of heating or air conditioning other than supplied by Landlord.
12. No Tenant shall use, keep or permit to be used or kept in its premises
any foul or noxious gas or substance or permit or suffer such premises to be
occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Building by reason of noise, odors and/or vibrations or
interfere in any way with other Tenants or those having business therein, nor
shall any animals or birds be brought or kept in or about any premises of the
Building.
13. No cooking shall be done or permitted by any Tenant on its premises,
except that the preparation of coffee, tea, hot chocolate and similar items for
Tenants and their employees shall be permitted, nor shall such premises be used
for lodging.
14. Xxxxxxxx will direct electricians as to where and how telephone,
telegraph and electrical wires are to be introduced or installed. No boring or
cutting for wires will be allowed without the prior written consent of Landlord.
The location of telephones, call boxes and other office equipment affixed to all
premises shall be subject to the written approval of Landlord.
15. No Tenant shall install any radio or television antenna, loudspeaker or
any other device on the exterior walls of the Building.
16. No Tenant shall lay linoleum, tile, carpet or any other floor covering
so that the same shall be affixed to the floor of its premises in any manner
except as approved in writing by Landlord. The expense of repairing any damage
resulting from a violation of this rule or the removal of any floor covering
shall be borne by the Tenant by whom, or by whose contractors, employees or
invitees, the damage shall have been caused.
17. No furniture, freight, equipment, packages or merchandise will be
received in the Building or carried up or down the elevators, except between
such hours and in such elevators as shall be designated by Landlord. No
furniture, merchandise or other bulky objects shall be brought into or removed
from the Building during any major market exhibition without the prior written
consent of Landlord. Landlord shall have the right to prescribe the weight, size
and position of all safes and other heavy equipment brought into the Building.
Safes or other heavy objects shall, if considered necessary by Landlord, stand
on wood strips of such thickness as is necessary to properly distribute the
weight thereof. Landlord will not be responsible for loss of or damage to any
such safe or property from any cause, and all damage done to the Building by
moving or maintaining any such safe or other property shall be repaired at the
expense of the Tenant.
18. No Tenant shall overload the floor of its premises or mark, or drive
nails, screw or drill into, the partitions, woodwork or plaster or in any way
deface such premises or any part thereof.
19. There shall not be used in any space, or in the public areas of the
Building, either by any Tenant or others, any hand trucks except those equipped
with rubber tires and side guards. No other vehicles of any kind shall be
brought by any Tenant into or kept in or about any premises.
20. Each Tenant shall store all its trash and garbage within the interior
of its premises. No material shall be placed in the trash boxes or receptacles
if such material is of such nature that it may not be disposed of in the
ordinary and customary manner or removing and disposing of trash and garbage in
the City of San Francisco without violation of any law or ordinance governing
such disposal.
21. Landlord shall have the right, exercisable without notice and without
liability to any Tenant, to change the names and address of the Building.
22. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular Tenant or Tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of any
other Tenant or Tenants, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all Tenants of the Building.
23. Tenant, employees, agents and guests shall not be passengers on the
freight elevators except when using the elevators to move samples and equipment
between the shipping/receiving area and the leased premises.
24. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify, alter or amend, in whole or in part, the terms,
covenants and conditions of the Lease.
SAN FRANCISCO MART
LEASE EXTENSION
This Lease Extension ("Agreement") is made this 6th day of May, 1998 by and
between 1355 MARKET STREET ASSOCIATES, L.P. dba SAN FRANCISCO MART ("Landlord")
and XXXXXX MANUFACTURING COMPANY, INC. ("Tenant").
Landlord and Xxxxxx entered into a Written Lease Agreement on May 21, 1996
(the "Lease") for the certain premises consisting of approximately 1,702
rentable square feet (the "Premises") known as Showroom 778 located at 0000
Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000.
Xxxxxxxx and Xxxxxx hereby acknowledge and mutually agree to the following:
1. Defined Terms. Capitalized terms used but not defined in this Agreement
shall have the meanings given to them in the Lease.
2. Extension of Lease Term. The term of the lease is extended from the
Expiration Date of June 30, 1998 until June 30, 1999 (the "Extended Term").
3. Rent. As of the first month of the Extended Term, the Monthly Rent as
set forth in paragraph 3(a) of the Lease shall be $2,534.00.
4. Security Deposit. The Security Deposit will be increased to $5,068.00
5. Electricity. Tenant shall pay for electricity on the first day of each
month during the term of this lease beginning on the first such date after the
commencement of this Lease at the monthly rate of $0.05 times the square feet in
the Premises. Landlord reserves the right to change Tenant's use rate in its
sole and absolute discretion upon thirty(30) days written notice to Xxxxxx.
6. No Representations. Landlord has made no representations other than
those contained in this Agreement.
7. Modification of Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matters hereof and may not
be modified except by a written instrument executed by both parties.
8. Incorporation of Lease Terms; Lease in Full Force and Effect. All of the
terms and provisions of the Lease are hereby incorporated in this Agreement
except to the extent directly amended by the terms hereof. Except as expressly
so amended, the Lease shall remain in full force and effect in accordance with
its terms during the Extended Term.
Upon execution of this Extension, Tenant shall deliver to Landlord the sum
of $472.00 representing the additional security deposit.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year appearing next to each signature below.
TENANT: LANDLORD:
XXXXXX MANUFACTURING COMPANY, INC. 0000 XXXXXX XXXXXX XXXXXXXXXX, X.X. xxx XXX
XXXXXXXXX MART
By: Western Mart Corp., General Partner
By: By:
Its: Assist. V.P. of Marketing Its: Vice President
Date: 3/20/98 Date: 4/13/98
Certified Correct
As to Area, Rate
And Extension
