SOUTHERN CALIFORNIA CHAPTER OF THE
[LOGO] SOCIETY OF INDUSTRIAL AND OFFICE REALTORS,-R- INC.
INDUSTRIAL REAL ESTATE LEASE
(SINGLE-TENANT FACILITY)
ARTICLE ONE: BASIC TERMS
This Article One contains the Basic Terms of this Lease between the
Landlord and Tenant named below. Other Articles, Sections and Paragraphs of
the Lease referred to in this Article One explain and define the Basic Terms
and are to be read in conjunction with the Basic Terms.
Section 1.01. DATE OF LEASE: June 21, 1994
Section 1.02. LANDLORD (INCLUDE LEGAL ENTITY): Xxxxx Xxxxxx, as Trustee of
the Xxxxx Xxxxxx and Xxxx Xxxxxx Family Trust dated January 15, 1987
Address of Landlord: 0000 Xxxxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Section 1.03. TENANT (INCLUDE LEGAL ENTITY): Xxxx Xxxxxxxxxxx/
RETROSPETTIVA INC.
Address of Tenant: 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000
Section 1.04. PROPERTY: (include street address, approximate square
footage and description) An approximately 2,200 rentable square feet of a
building commonly known as 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx, XX 00000
Section 1.05. LEASE TERM: 4 years 0 months beginning on August 30, 1994
or such other date as is specified in this Lease, and ending on August 29,
1998 or any other date mutually agreed upon by Landlord and Tenant.
Section 1.06. PERMITTED USES: (See Article Five) import/export and trading
of clothing and related apparel
Section 1.07. TENANT'S GUARANTOR: (If none, so state) None
Section 1.08. BROKERS: (See Article Fourteen) (If none, so state)
Landlord's Broker: None
Tenant's Broker: None
Section 1.09. COMMISSION PAYABLE TO LANDLORD'S BROKER: (See Article
Fourteen) $ N/A
Section 1.10. INITIAL SECURITY DEPOSIT: (See Section 3.03) $2,200.00
Section 1.11. VEHICLE PARKING SPACES ALLOCATED TO TENANT: two (2) parking
spaces in the rear of the Property nearest in proximity to the alley. Tenant
may obtain additional parking spaces (if then available) on an unreserved basis
and at a cost of Fifty Dollars ($50.00) per space per month. The location of
said additional spaces shall be on the premises located at 0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Section 1.12. RENT AND OTHER CHARGES PAYABLE BY TENANT:
(a) BASE RENT: Two Thousand Two Hundred and no/100 --- Dollars ($2,200.00)
per month for the first twelve (12) months, as provided in Section 3.O1, and
shall be increased on the first day of the thirteenth (13th), twenty-fifth
(25th) and thirty-seventh (37th) month(s) after the Commencement Date, as
provided in Section 3.02. (If (ii) is completed, then (i) and Section 3.02 are
inapplicable.)
(b) OTHER PERIODIC PAYMENTS: (i) Real Property Taxes (See Section 4.02);
(ii) Utilities (See Section 4.03); (iii) Insurance Premiums (See Section 4.04);
(iv) Impounds for Insurance Premiums and Property Taxes (See Section 4.07);
(v) Maintenance, Repairs and Alterations (See Article Six).
Section 1.13. XXXXXXXX'S SHARE OF PROFIT ON ASSIGNMENT OR SUBLEASE: (See
Section 9.05) one hundred percent (100%) of the Profit (the "Landlord's Share").
Section 1.14. RIDERS: The following Riders are attached to and made a
part of this Lease: (If none, so state) Rider to Industrial Real Estate Lease
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ARTICLE TWO: LEASE TERM
Section 2.01. LEASE OF PROPERTY FOR LEASE TERM. Landlord leases the
Property to Tenant and Tenant leases the Property from Landlord for the Lease
Term. The Lease Term is for the period stated in Section 1.05 above and
shall begin and end on the dates specified in Section 1.05 above, unless the
beginning or end of the Lease Term is changed under any provision of this
Lease. The "Commencement Date" shall be the date specified in Section 1.05
above for the beginning of the Lease Term, unless advanced or delayed under
any provision of this Lease.
Section 2.02. DELAY IN COMMENCEMENT. Landlord shall not be liable to
Tenant if Landlord does not deliver possession of the Property to Tenant on
the Commencement Date for any reason whatsoever, including, without
limitation, the failure of the existing tenant of the Property to vacate the
Property prior to the Commencement Date. Landlord's non-delivery of the
Property to Tenant on that date shall not affect this Lease or the obligations
of Tenant under this Lease except that the Commencement Date shall be delayed
until Landlord delivers possession of the Property to Tenant and the Lease Term
shall be extended for a period equal to the delay in delivery of possession of
the Property to Tenant, plus the number of days necessary to end the Lease Term
on the last day of a month. If Landlord does not deliver possession of the
Property to Tenant within sixty (60) days after the Commencement Date, Tenant
may elect to cancel this Lease by giving written notice to Landlord within ten
(10) days after the sixty (60) -day period ends. If Tenant gives such notice,
the Lease shall be cancelled and neither Landlord nor Tenant shall have any
further obligations to the other. If Tenant does not give such notice, Xxxxxx's
right to cancel the Lease shall expire and the Lease Term shall commence upon
the delivery of possession of the Property to Tenant. If delivery of possession
of the Property to Tenant is delayed, Landlord and Tenant shall, upon such
delivery, execute an amendment to this Lease setting forth the actual
Commencement Date and expiration date of the Lease. Failure to execute such
amendment shall not affect the actual Commencement Date and expiration date of
the Lease.
Section 2.03. EARLY OCCUPANCY. If Tenant occupies the Property prior to
the Commencement Date, Xxxxxx's occupancy of the Property shall be subject to
all of the provisions of this Lease. Early occupancy of the Property shall
advance the expiration date of this Lease. Tenant shall pay Base Rent and all
other charges specified in this Lease for the early occupancy period.
Section 2.04. HOLDING OVER. Tenant shall vacate the Property upon the
expiration or earlier termination of this Lease. Tenant shall reimburse
Landlord for and indemnify Landlord against all damages which Landlord
incurs from Xxxxxx's delay in vacating the Property. If Tenant does not
vacate the Property upon the expiration or earlier termination of the Lease
and Landlord thereafter accepts rent from Tenant, Xxxxxx's occupancy of the
Property shall be a "month-to-month" tenancy, subject to all of the terms
of this Lease applicable to a month-to-month tenancy, except that the Base
Rent then in effect shall be increased by twenty-five percent (25%).
ARTICLE THREE: BASE RENT
Section 3.01. TIME AND MANNER OF PAYMENT. On or before the execution of
this Lease, Tenant shall pay Landlord the Base Rent in the amount stated in
Paragraph 1.12(a) above for the first month of the Lease Term. Except as
provided below, the first day of the second month of the Lease Term and each
month thereafter, Tenant shall pay Landlord the Base Rent, in advance, without
offset, deduction or prior demand. The Base Rent shall be payable at Landlord's
address or at such other place as Landlord may designate in writing.
Notwithstanding anything to the contrary contained herein, Tenant shall not be
obligated to pay Base Rent for the second full calendar month of the Lease Term.
Section 3.02. COST OF LIVING INCREASES. The Base Rent shall be increased
on each date (the "Rental Adjustment Date") stated in Paragraph 1.12(a) above
in accordance with the increase in the United States Department of Labor, Bureau
of Labor Statistics, Consumer Price Index for All Urban Consumers (all items for
the geographical Statistical Area in which the Property is located on the basis
of 1982-1984 = 100) (the "Index") as follows:
(a) The Base Rent (the "Comparison Base Rent") in effect immediately
before each Rental Adjustment Date shall be increased by the percentage that the
Index has increased from the date (the "Comparison Date") on which payment of
the Comparison Base Rent began through the month in which the applicable Rental
Adjustment Date occurs. The Base Rent shall not be reduced by reason of such
computation. Landlord shall notify Tenant of each increase by a written
statement which shall include the Index for the applicable Comparison Date, the
Index for the applicable Rental Adjustment Date, the percentage increase between
those two Indices, and the new Base Rent. Any increase in the Base Rent provided
for in this Section 3.02 shall be subject to any minimum or maximum increase, if
provided for in Paragraph 1.12(a).
(b) Tenant shall pay the new Base Rent from the applicable Rental
Adjustment Date until the next Rental Adjustment Date. Landlord's notice may be
given after the applicable Rental Adjustment Date of the increase, and Tenant
shall pay Landlord the accrued rental adjustment for the months elapsed between
the effective date of the increase and Landlord's notice of such increase within
ten (10) days after Landlord's notice. If the format or components of the Index
are materially changed after the Commencement Date, Landlord shall substitute an
index which is published by the Bureau of Labor Statistics or similar agency and
which is most nearly equivalent to the Index in effect on the Commencement Date.
The substitute index shall be used to calculate the increase in the Base Rent
unless Tenant objects to such index in writing within fifteen (15) days after
receipt of Landlord's notice. If Tenant objects, Landlord and Tenant shall
submit the selection of the substitute index for binding arbitration in
accordance with the rules and regulations of the American Arbitration
Association at its office closest to the Property. The costs of arbitration
shall be borne equally by Landlord and Tenant.
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Section 3.03. SECURITY DEPOSIT; INCREASES.
(a) Upon the execution of this Lease, Tenant shall deposit with Landlord a
cash Security Deposit in the amount set forth in Section 1.10 above. Landlord
may apply all or part of the Security Deposit to any unpaid rent or other
charges due from Tenant or to cure any other defaults of Tenant. If Landlord
uses any part of the Security Deposit, Tenant shall restore the Security Deposit
to its full amount within ten (10) days after Landlord's written request.
Tenant's failure to do so shall be a material default under this Lease. No
interest shall be paid on the Security Deposit. Landlord shall not be required
to keep the Security Deposit separate from its other accounts and no trust
relationship is created with respect to the Security Deposit.
Section 3.04. TERMINATION; ADVANCE PAYMENTS. Upon termination of this
Lease under Article Seven (Damage or Destruction), Article Eight (Condemnation)
or any other termination not resulting from Xxxxxx's default, and after Tenant
has vacated the Property in the manner required by this Lease, Landlord shall
refund or credit to Tenant (or Xxxxxx's successor) the unused portion of the
Security Deposit, any advance rent or other advance payments made by Tenant to
Landlord, and any amounts paid for real property taxes and other reserves which
apply to any time periods after termination of the Lease.
ARTICLE FOUR: OTHER CHARGES PAYABLE BY TENANT
Section 4.01. ADDITIONAL RENT. All charges payable by Tenant other than
Base Rent are called "Additional Rent." Unless this Lease provides otherwise,
Tenant shall pay all Additional Rent then due with the next monthly installment
of Base Rent. The term "rent" shall mean Base Rent and Additional Rent.
Section 4.02. PROPERTY TAXES.
(a) REAL PROPERTY TAXES. Subject to Paragraph 4.02(c) below, Tenant shall
pay all real property taxes on the Project (as defined below) including any
fees, taxes or assessments against, or as a result of, any tenant improvements
installed on the Property by or for the benefit of Tenant) during the Lease
Term. Subject to Paragraph 4.02(c) and Section 4.07 below, such payment shall be
made at least ten (10) days prior to the delinquency date of the taxes. Within
such ten (10) -day period, Tenant shall furnish Landlord with satisfactory
evidence that the real property taxes have been paid. Landlord shall reimburse
Tenant for any real property taxes paid by Tenant covering any period of time
prior to or after the Lease Term. If Tenant fails to pay the real property
taxes when due, Landlord may pay the taxes and Tenant shall reimburse Landlord
for the amount of such tax payment as Additional Rent.
(b) DEFINITION OF "REAL PROPERTY TAX." "Real property tax" means: (i)
any fee, license fee, license tax (including, without limitation, the City of
Xxxxxxx Hills license tax) business license fee, commercial rental tax, levy,
charge, assessment, penalty or tax imposed by any taxing authority against the
Property or the Project; (ii) any tax on the Landlord's right to receive, or the
receipt of, rent or income from the Property or against Landlord's business of
leasing the Property; (iii) any tax or charge for fire protection, streets,
sidewalks, road maintenance, refuse or other services provided to the Property
or the Project by any governmental agency; (iv) any tax imposed upon this
transaction or based upon a re-assessment of the Property or the Project due to
a change of ownership, as defined by applicable law, or other transfer of all or
part of Landlord's interest in the Property or the Project; and (v) any charge
or fee replacing any tax previously included within the definition of real
property tax. "Real property tax" does not, however, include Landlord's federal
or state income, franchise, inheritance or estate taxes.
(c) JOINT ASSESSMENT. See Rider.
(d) PERSONAL PROPERTY TAXES.
(i) Tenant shall pay all taxes charged against trade fixtures,
furnishings, equipment or any other personal property belonging to Xxxxxx.
Tenant shall try to have personal property taxed separately from the
Property.
(ii) If any of Tenant's personal property is taxed with the Property,
Tenant shall pay Landlord the taxes for the personal property within
fifteen (15) days after Xxxxxx receives a written statement from Landlord
for such personal property taxes.
(e) TENANT'S RIGHT TO CONTEST TAXES. Tenant may attempt to have the
assessed valuation of the Property reduced or may initiate proceedings to
contest the real property taxes. If required by law, Landlord shall join in the
proceedings brought by Xxxxxx. However, Tenant shall pay all costs of the
proceedings, including any costs or fees incurred by Landlord. Upon the final
determination of any proceeding or contest, Xxxxxx shall immediately pay the
real property taxes due, together with all costs, charges, interest and
penalties incidental to the proceedings. If Tenant does not pay the real
property taxes when due and contests such taxes, Tenant shall not be in
default under this Lease for nonpayment of such taxes if Tenant deposits
funds with Landlord or opens as interest-bearing account reasonably
acceptable to Landlord in the joint names of Landlord and Tenant. The amount
of such deposit shall be sufficient to pay the real property taxes plus a
reasonable estimate of the interest, costs, charges and penalties which may
accrue if Tenant's action is unsuccessful, less any applicable tax impounds
previously paid by Tenant to Landlord. The deposit shall be applied to the
real property taxes due, as determined at such proceedings. The real property
taxes shall be paid under protest from such deposit if such payment under
protest is necessary to prevent the Property from being sold under a "tax
sale" or similar enforcement proceeding.
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Section 4.03. UTILITIES. Tenant shall pay, directly to the appropriate
supplier, the cost of all natural gas, heat, light, power, sewer service,
telephone, water, refuse disposal, gardening other utilities and services
supplied to the Property. However, if any services or utilities are jointly
metered with other property, Landlord shall make a reasonable determination
of Tenant's proportionate share of the cost of such utilities and services
and Tenant shall pay such share to Landlord within fifteen (15) days after
receipt of Landlord's written statement.
Section 4.04. INSURANCE POLICIES.
(a) LIABILITY INSURANCE. During the Lease Term, Tenant shall
maintain a policy of commercial general liability insurance (sometimes known as
broad form comprehensive general liability insurance) insuring Tenant against
liability for bodily injury, property damage (including loss of use of property)
and personal injury arising out of the operation, use or occupancy of the
Property. Tenant shall name Landlord as an additional insured under such
policy. The initial amount of such insurance shall be Five Hundred Thousand
Dollars ($500,000) or more per occurrence and shall be subject to periodic
increase based upon inflation, increased liability awards, recommendation of
Landlord's professional insurance advisers and other relevant factors. The
liability insurance obtained by Tenant under this Paragraph 4.04(a) shall (i)
be primary and non-contributing; (ii) contain cross-liability endorsements; and
(iii) insure Landlord against Tenant's performance under Section 5.05, if the
matters giving rise to the indemnity under Section 5.05 result from the
negligence of Tenant. The amount and coverage of such insurance shall not limit
Tenant's liability nor relieve Tenant of any other obligation under this Lease.
Landlord may also obtain comprehensive public liability insurance in an amount
and with coverage determined by Landlord insuring Landlord against liability
arising out of ownership, operation, use or occupancy of the Property. The
policy obtained by Landlord shall not be contributory and shall not provide
primary insurance.
(b) PROPERTY AND RENTAL INCOME INSURANCE. During the Lease Term,
Landlord shall maintain policies of insurance covering loss of or damage to the
Property in the full amount of its replacement value. Such policy shall
contain an Inflation Guard Endorsement and shall provide protection against all
perils included within the classification of fire, extended coverage, vandalism,
malicious mischief, special extended perils (all risk), sprinkler leakage and
any other perils which Landlord deems reasonably necessary. Landlord shall have
the right to obtain flood and earthquake insurance if required by any lender
holding a security interest in the Property. Landlord shall not obtain insurance
for Tenant's fixtures or equipment or building improvements installed by Tenant
on the Property. During the Lease Term, Landlord shall also maintain a rental
income insurance policy, with loss payable to Landlord, in an amount equal to
one year's Base Rent, plus estimated real property taxes and insurance premiums.
Tenant shall be liable for the payment of any deductible amount under Xxxxxxxx's
or Tenant's insurance policies maintained pursuant to this Section 4.04, in an
amount not to exceed Ten Thousand Dollars ($10,000). Tenant shall not do or
permit anything to be done which invalidates any such insurance policies.
(c) PAYMENT OF PREMIUMS. Subject to Section 4.07, Tenant shall pay all
premiums for the insurance policies described in Paragraphs 4.04(a) and (b)
(whether obtained by Landlord or Tenant) within fifteen (15) days after Xxxxxx's
receipt of a copy of the premium statement or other evidence of the amount due,
except Landlord shall pay all premiums for non-primary comprehensive public
liability insurance which Landlord elects to obtain as provided in Paragraph
4.04(a). If insurance policies maintained by Landlord cover improvements on real
property other than the Property, Landlord shall deliver to Tenant a statement
of the premium applicable to the Property showing in reasonable detail how
Tenant's share of the premium was computed. If the Lease Term expires before
the expiration of an insurance policy maintained by Landlord, Tenant shall be
liable for Tenant's prorated share of the insurance premiums. Before the
Commencement Date, Tenant shall deliver to Landlord a copy of any policy of
insurance which Tenant is required to maintain under this Section 4.04. At
least thirty (30) days prior to the expiration of any such policy, Tenant shall
deliver to Landlord a renewal of such policy. As an alternative to providing a
policy of insurance, Tenant shall have the right to provide Landlord a
certificate of insurance, executed by an authorized officer of the insurance
company, showing that the insurance which Tenant is required to maintain under
this Section 4.04 is in full force and effect and containing such other
information which Landlord reasonably requires.
(d) PERSONAL PROPERTY INSURANCE. See Rider.
(e) GENERAL INSURANCE PROVISIONS.
(i) Any insurance which Tenant is required to maintain under this
Lease shall include a provision which requires the insurance carrier to give
Landlord not less than thirty (30) days' written notice prior to any
cancellation or modification of such coverage.
(ii) If Tenant fails to deliver any policy, certificate or renewal to
Landlord required under this Lease within the prescribed time period or if
any such policy is cancelled or modified during the Lease Term without
Landlord's consent, Landlord may obtain such insurance, in which case
Tenant shall reimburse Landlord for the cost of such insurance within
fifteen (15) days after receipt of a statement that indicates the cost of
such insurance.
(iii) Tenant shall maintain all insurance required under this Lease
with companies holding a "General Policy Rating" of A-12 or better, as set
forth in the most current issue of "Best Key Rating Guide". Landlord and
Tenant acknowledge the insurance markets are rapidly changing and that
insurance in the form and amounts described in this Section 4.04 may not be
available in the future. Tenant acknowledges that the insurance described
in this Section 4.04 is for the primary benefit of Landlord. If at any time
during the Lease Term, Tenant is unable to maintain the insurance required
under the Lease, Tenant shall nevertheless maintain insurance coverage
which is customary and commercially reasonable in the insurance industry for
Tenant's type of business, as that coverage may change from time to time.
Xxxxxxxx makes no representation as to the adequacy of such insurance to
protect Xxxxxxxx's or Xxxxxx's interests. Therefore, Tenant shall obtain
any such additional property or liability insurance which Tenant deems
necessary to protect Landlord and Tenant.
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(iv) Unless prohibited under any applicable insurance policies
maintained, Landlord and Tenant each hereby waive any and all rights of
recovery against the other, or against the officers, employees, agents or
representatives of the other, for loss of or damage to its property or the
property of others under its control, if such loss or damage is covered by
any insurance policy in force (whether or not described in this Lease) at
the time of such loss or damage. Upon obtaining the required policies of
insurance, Landlord and Tenant shall give notice to the insurance carriers
of this mutual waiver of subrogation.
Section 4.05. LATE CHARGES. Xxxxxx's failure to pay rent promptly may
cause Landlord to incur unanticipated costs. The exact amount of such costs are
impractical or extremely difficult to ascertain. Such costs may include, but
are not limited to, processing and accounting charges and late charges which may
be imposed on Landlord by any ground lease, mortgage or trust deed encumbering
the Property. Therefore, if Landlord does not receive any rent payment within
ten (10) days after it becomes due, Tenant shall pay Landlord a late charge
equal to ten percent (l0%) of the overdue amount. The parties agree that such
late charge represents a fair and reasonable estimate of the costs Landlord will
incur by reason of such late payment.
Section 4.06. INTEREST ON PAST DUE OBLIGATIONS. Any amount owed by Tenant
to Landlord which is not paid when due shall bear interest at the rate of
fifteen percent (15%) per annum from the due date of such amount. However,
interest shall not be payable on late charges to be paid by Tenant under this
Lease. The payment of interest on such amounts shall not excuse or cure any
default by Tenant under this Lease. If the interest rate specified in this
Lease is higher than the rate permitted by law, the interest rate is hereby
decreased to the maximum legal interest rate permitted by law.
Section 4.07. IMPOUNDS FOR INSURANCE PREMIUMS AND REAL PROPERTY TAXES. If
requested by any ground lessor or lender to whom Landlord has granted a security
interest in the Property, or if Tenant is more than ten (10) days late in the
payment of rent more than once in any consecutive twelve (12) -month period,
Tenant shall pay Landlord a sum equal to one-twelfth (1/12) of the annual real
property taxes and insurance premiums payable by Tenant under this Lease,
together with each payment of Base Rent. Landlord shall hold such payments in a
non-interest bearing impound account. If unknown, Landlord shall reasonably
estimate the amount of real property taxes and insurance premiums when due.
Tenant shall pay any deficiency of funds in the impound account to Landlord upon
written request. If Tenant defaults under this Lease, Landlord may apply any
funds in the impound account to any obligation then due under this Lease.
ARTICLE FIVE: USE OF PROPERTY
Section 5.01. PERMITTED USES. Tenant may use the Property only for the
Permitted Uses set forth in Section 1.06 above.
Section 5.02. MANNER OF USE. Tenant shall not cause or permit the Property
to be used in any way which constitutes a violation of any law, ordinance, or
governmental regulation or order, which annoys or interferes with the rights of
other tenants of Landlord, or which constitutes a nuisance or waste. Tenant
shall obtain and pay for all permits, including a Certificate of Occupancy,
required for Tenant's occupancy of the Property and shall promptly take all
actions necessary to comply with all applicable statutes, ordinances, rules,
regulations, orders and requirements regulating the use by Tenant of the
Property, including the Occupational Safety and Health Act.
Section 5.03. HAZARDOUS MATERIALS. As used in this Lease, the term
"Hazardous Material" means any flammable items, explosives, radioactive
materials, hazardous or toxic substances, material or waste or related
materials, including any substances defined as or included in the definition of
"hazardous substances", "hazardous wastes", "hazardous materials" or "toxic
substances" now or subsequently regulated under any applicable federal, state or
local laws or regulations, including without limitation petroleum-based
products, paints, solvents, lead, cyanide, DDT, printing inks, acids,
pesticides, ammonia compounds and other chemical products, asbestos, PCBs and
similar compounds, and including any different products and materials which are
subsequently found to have adverse effects on the environment or the health and
safety of persons. Tenant shall not cause or permit any Hazardous Material to
be generated, produced, brought upon, used, stored, treated or disposed of in or
about the Property by Tenant, its agents, employees, contractors, sublessees or
invitees without the prior written consent of Landlord. Landlord shall be
entitled to take into account such other factors or facts as Landlord may
reasonably determine to be relevant in determining whether to grant or withhold
consent to Tenant's proposed activity with respect to Hazardous Material. In no
event, however, shall Landlord be required to consent to the installation or use
of any storage tanks on the Property.
Section 5.04. SIGNS AND AUCTIONS. Tenant shall not place any signs on the
Property without Landlord's prior written consent. Tenant shall not conduct or
permit any auctions or sheriffs sales at the Property.
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Section 5.05. INDEMNITY. Tenant shall indemnify Landlord against and hold
Landlord harmless from any and all costs, claims or liability arising from: (a)
Tenant's use of the Property; (b) the conduct of Tenant's business or anything
else done or permitted by Tenant to be done in or about the Property, including
any contamination of the Property or any other property resulting from the
presence or use of Hazardous Material caused or permitted by Tenant; (c) any
breach or default in the performance of Tenant's obligations under this Lease;
(d) any misrepresentation or breach of warranty by Tenant under this Lease; or
(e) other acts or omissions of Tenant. Tenant shall defend Landlord against any
such cost, claim or liability at Xxxxxx's expense with counsel reasonably
acceptable to Landlord or, at Landlord's election, Tenant shall reimburse
Landlord for any legal fees or costs incurred by Landlord in connection with
any such claim. As a material part of the consideration to Landlord, Xxxxxx
assumes all risk of damage to property or injury to persons in or about the
Property arising from any cause, and Tenant hereby waives all claims in respect
thereof against Landlord, except for any claim arising out of Landlord's gross
negligence or willful misconduct. As used in this Section, the term "Tenant"
shall include Tenant's employees, agents, contractors and invitees, if
applicable.
Section 5.06. LANDLORD'S ACCESS. Landlord or its agents may enter the
Property at all reasonable times to show the Property to potential buyers,
investors or tenants or other parties; to do any other act or to inspect and
conduct tests in order to monitor Tenant's compliance with all applicable
environmental laws and all laws governing the presence and use of Hazardous
Material: or for any other purpose Landlord deems necessary. Landlord shall
give Tenant prior notice of such entry, except in the case of an emergency.
Landlord may place customary "For Sale" or "For Lease" signs on the Property.
Section 5.07. QUIET POSSESSION. If Tenant pays the rent and complies with
all other terms of this Lease, Tenant may occupy and enjoy the Property for the
full Lease Term, subject to the provisions of this Lease.
ARTICLE SIX: CONDITION OF PROPERTY; MAINTENANCE, REPAIRS AND ALTERATIONS
Section 6.01. EXISTING CONDITIONS. Tenant accepts the Property in its
condition as of the execution of the Lease, subject to all recorded matters,
laws, ordinances, and governmental regulations and orders. Except as provided
herein, Xxxxxx acknowledges that neither Xxxxxxxx nor any agent of Landlord has
made any representation as to the condition of the Property or the suitability
of the Property for Xxxxxx's intended use. Tenant represents and warrants that
Tenant has made its own inspection of and inquiry regarding the condition of the
Property and is not relying on any representations of Landlord or any Broker
with respect thereto. If Landlord or Landlord's Broker has provided a Property
Information Sheet or other Disclosure Statement regarding the Property, a copy
is attached as an exhibit to the Lease. See Rider.
Section 6.02. EXEMPTION OF LANDLORD FROM LIABILITY. Landlord shall not be
liable for any damage or injury to the person, business (or any loss of income
therefrom), goods, wares, merchandise or other property of Tenant. Tenant's
employees, invitees, customers or any other person in or about the Property,
whether such damage or injury is caused by or results from: (a) fire, steam,
electricity, water, gas or rain; (b) the breakage, leakage, obstruction or other
defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or
lighting fixtures or any other cause; (c) conditions arising in or about the
Property or from other sources or places; or (d) any act or omission of any
other tenant of Landlord. Landlord shall not be liable for any such damage or
injury even though the cause of or the means of repairing such damage or injury
are not accessible to Tenant. The provisions of this Section 6.02 shall not,
however, exempt Landlord from liability for Landlord's gross negligence or
willful misconduct.
Section 6.03. LANDLORD'S OBLIGATIONS. Subject to the provisions of Article
Seven (Damage or Destruction) and Article Eight (Condemnation), Landlord shall
have absolutely no responsibility to repair, maintain or replace any portion of
the Property at any time, other than the roof and exterior walls, all of
which shall be maintained by Landlord at Landlord's sole cost and expense.
Tenant waives the benefit of any present or future law which might give Tenant
the right to repair the Property at Landlord's expense or to terminate the Lease
due to the condition of the Property.
Section 6.04. TENANT'S OBLIGATIONS.
(a) Except as provided in Article Seven (Damage or Destruction) and Article
Eight (Condemnation), Tenant shall keep all portions of the Property (including
structural, nonstructural, interior, exterior (including that portion of the
parking lot servicing the Property), and landscaped areas, portions, systems
and equipment) other than the roof and exterior walls in good order, condition
and repair (including interior repainting and refinishing, as needed). If any
portion of the Property or any system or equipment in the Property which Tenant
is obligated to repair cannot be fully repaired or restored, Tenant shall
promptly replace such portion of the Property or system or equipment in the
Property, regardless of whether the benefit of such replacement extends beyond
the Lease Term; but if the benefit or useful life of such replacement extends
beyond the Lease Term (as such term may be extended by exercise of any options),
the useful life of such replacement shall be prorated over the remaining portion
of the Lease Term (as extended), and Tenant shall be liable only for that
portion of the cost which is applicable to the Lease Term (as extended). Tenant
shall maintain a preventive maintenance contract providing for the regular
inspection and maintenance of the heating and air conditioning system by a
licensed heating and air conditioning contractor. If any part of the Property
is damaged by any act or omission of Tenant, Tenant shall pay Landlord the cost
of repairing or replacing such damaged property, whether or not Landlord would
otherwise be obligated to pay the cost of maintaining or repairing such
property. It is the intention of Landlord and Tenant that at all times Tenant
shall maintain the portions of the Property which Tenant is obligated to
maintain in an attractive, first-class and fully operative condition.
(b) Tenant shall fulfill all of Tenant's obligations under this Section
6.04 at Tenant's sole expense. If Tenant fails to maintain, repair or
replace the Property as required by this Section 6.04, Landlord may, upon ten
(10) days' prior notice to Tenant (except that no notice shall be required in
the case of an emergency), enter the Property and perform such maintenance or
repair (including replacement, as needed) on behalf of Tenant. In such case,
Tenant shall reimburse Landlord for all costs incurred in performing such
maintenance or repair immediately upon demand.
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Section 6.05. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS.
(a) Tenant shall not make any alterations, additions, or improvements to
the Property without Landlord's prior written consent, including non-structural
alterations. Landlord may require Tenant to provide demolition and/or lien and
completion bonds in form and amount satisfactory to Landlord. Tenant shall
promptly remove any alterations, additions, or improvements constructed in
violation of this Paragraph 6.05(a) upon Landlord's written request. All
alterations, additions, and improvements shall be done in a good and workmanlike
manner, in conformity with all applicable laws and regulations, and by a
contractor approved by Landlord. Upon completion of any such work, Tenant shall
provide Landlord with "as built" plans, copies of all construction contracts,
and proof of payment for all labor and materials.
(b) Tenant shall pay when due all claims for labor and material furnished
to the Property. Tenant shall give Landlord at least twenty (20) days' prior
written notice of the commencement of any work on the Property, regardless of
whether Xxxxxxxx's consent to such work is required. Landlord may elect to
record and post notices of non-responsibility on the Property.
(c) See Rider.
Section 6.06. CONDITION UPON TERMINATION. Upon the termination of the
Lease, Xxxxxx shall surrender the Property to Landlord, broom clean and in the
same condition as received except for ordinary wear and tear which Tenant was
not otherwise obligated to remedy under any provision of this Lease. However,
Tenant shall not be obligated to repair any damage which Landlord is required to
repair under Article Seven (Damage or Destruction). In addition, Landlord may
require Tenant to remove any alterations, additions or improvements (whether or
not made with Xxxxxxxx's consent) prior to the expiration of the Lease and to
restore the Property to its prior condition, all at Tenant's expense. All
alterations, additions and improvements which Landlord has not required Tenant
to remove shall become Landlord's property and shall be surrendered to Landlord
upon the expiration or earlier termination of the Lease, except that Tenant may
remove any of Tenant's machinery or equipment which can be removed without
material damage to the Property. Tenant shall repair, at Tenant's expense, any
damage to the Property caused by the removal of any such machinery or equipment.
In no event, however, shall Tenant remove any of the following materials or
equipment (which shall be deemed Landlord's property) without Landlord's prior
written consent: any power wiring or power panels; lighting or lighting
fixtures; wall coverings; drapes, blinds or other window coverings; carpets or
other floor coverings; heaters, air conditioners or any other heating or air
conditioning equipment; fencing or security gates; or other similar building
operating equipment and decorations.
ARTICLE SEVEN: DAMAGE OR DESTRUCTION
Section 7.01. PARTIAL DAMAGE TO PROPERTY.
(a) Tenant shall notify Landlord in writing immediately upon the
occurrence of any damage to the Property. If the Property is only partially
damaged (i.e., less than fifty percent (50%) of the Property is untenantable as
a result of such damage or less than fifty percent (50%) of Tenant's operations
are materially impaired) and if the proceeds received by Landlord from the
insurance policies described in Paragraph 4.04(b) are sufficient to pay for the
necessary repairs, this Lease shall remain in effect and Landlord shall repair
the damage as soon as reasonably possible. Landlord may elect (but is not
required) to repair any damage to Tenant's fixtures, equipment, or improvements.
(b) If the insurance proceeds received by Landlord are not sufficient to
pay the entire cost of repair, or if the cause of the damage is not covered by
the insurance policies which Landlord maintains under Paragraph 4.04(b),
Landlord may elect either to (i) repair the damage as soon as reasonably
possible, in which case this Lease shall remain in full force and effect, or
(ii) terminate this Lease as of the date the damage occurred. Landlord shall
notify Tenant within thirty (30) days after receipt of notice of the occurrence
of the damage whether Landlord elects to repair the damage or terminate the
Lease. If Landlord elects to repair the damage, Tenant shall pay Landlord the
"deductible amount" (if any) under Landlord's insurance policies and, if the
damage was due to an act or omission of Tenant, or Tenant's employees, agents,
contractors or invitees, the difference between the actual cost of repair and
any insurance proceeds received by Landlord. If Landlord elects to terminate
this Lease, Tenant may elect to continue this Lease in full force and effect,
in which case Tenant shall repair any damage to the Property and any building in
which the Property is located. Tenant shall pay the cost of such repairs,
except that upon satisfactory completion of such repairs, Landlord shall deliver
to Tenant any insurance proceeds received by Landlord for the damage repaired by
Tenant. Tenant shall give Landlord written notice of such election within ten
(10) days after receiving Landlord's termination notice.
(c) If the damage to the Property occurs during the last six (6) months of
the Lease Term and such damage will require more than thirty (30) days to
repair, either Landlord or Tenant may elect to terminate this Lease as of the
date the damage occurred, regardless of the sufficiency of any insurance
proceeds. The party electing to terminate this Lease shall give written
notification to the other party of such election within thirty (30) days after
Xxxxxx's notice to Landlord of the occurrence of the damage.
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Section 7.02. SUBSTANTIAL OR TOTAL DESTRUCTION. If the Property is
substantially or totally destroyed by any cause whatsoever (i.e., the damage to
the Property is greater than partial damage as described in Section 7.01), and
regardless of whether Landlord receives any insurance proceeds, this Lease shall
terminate as of the date the destruction occurred. Notwithstanding the
preceding sentence, if the Property can be rebuilt within six (6) months after
the date of destruction, Landlord may elect to rebuild the Property at
Landlord's own expense, in which case this Lease shall remain in full force and
effect. Landlord shall notify Tenant of such election within thirty (30) days
after Xxxxxx's notice of the occurrence of total or substantial destruction. If
Landlord so elects, Landlord shall rebuild the Property at Landlord's sole
expense, except that if the destruction was caused by an act or omission of
Tenant, Tenant shall pay Landlord the difference between the actual cost of
rebuilding and any insurance proceeds received by Landlord.
Section 7.03. TEMPORARY REDUCTION OF RENT. If the Property is destroyed or
damaged and Landlord or Tenant repairs or restores the Property pursuant to the
provisions of this Article Seven, any rent payable during the period of such
damage, repair and/or restoration shall be reduced according to the degree, if
any, to which Xxxxxx's use of the Property is impaired. However, the reduction
shall not exceed the sum of one year's payment of Base Rent, insurance premiums
and real property taxes. Except for such possible reduction in Base Rent,
insurance premiums and real property taxes, Tenant shall not be entitled to any
compensation, reduction, or reimbursement from Landlord as a result of any
damage, destruction, repair, or restoration of or to the Property.
Section 7.04. WAIVER. Tenant waives the protection of any statute, code or
judicial decision which grants a tenant the right to terminate a lease in the
event of the substantial or total destruction of the leased property. Tenant
agrees that the provisions of Section 7.02 above shall govern the rights and
obligations of Landlord and Tenant in the event of any substantial or total
destruction to the Property.
ARTICLE EIGHT: CONDEMNATION
If all or any portion of the Property is taken under the power of eminent
domain or sold under the threat of that power (all of which are called
"Condemnation"), this Lease shall terminate as to the part taken or sold on the
date the condemning authority takes title or possession, whichever occurs first.
If more than twenty percent (20%) of the floor area of the building in which the
Property is located, or which is located on the Property, is taken, either
Landlord or Tenant may terminate this Lease as of the date the condemning
authority takes title or possession, by delivering written notice to the other
within ten (10) days after receipt of written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
takes title or possession). If neither Landlord nor Tenant terminates this
Lease, this Lease shall remain in effect as to the portion of the Property not
taken, except that the Base Rent and Additional Rent shall be reduced in
proportion to the reduction in the floor area of the Property. Any Condemnation
award or payment shall be distributed in the following order: (a) first, to any
ground lessor, mortgagee or beneficiary under a deed of trust encumbering the
Property, the amount of its interest in the Property; (b) second, to Tenant,
only the amount of any award specifically designated for loss of or damage to
Tenant's trade fixtures or removable personal property; and (c) third, to
Landlord, the remainder of such award, whether as compensation for reduction in
the value of the leasehold, the taking of the fee, or otherwise. If this Lease
is not terminated, Landlord shall repair any damage to the Property caused by
the Condemnation, except that Landlord shall not be obligated to repair any
damage for which Tenant has been reimbursed by the condemning authority. If the
severance damages received by Landlord are not sufficient to pay for such
repair, Landlord shall have the right to either terminate this Lease or make
such repair at Landlord's expense.
ARTICLE NINE: ASSIGNMENT AND SUBLETTING
Section 9.01. LANDLORD'S CONSENT REQUIRED. No portion of the Property or
of Tenant's interest in this Lease may be acquired by any other person or
entity, whether by sale, assignment, mortgage, sublease, transfer, operation of
law, or act of Tenant, without Xxxxxxxx's prior written consent, except as
provided in Section 9.02 below. Landlord has the right to grant or withhold its
consent as provided in Section 9.05 below. Any attempted transfer without
consent shall be void and shall constitute a non-curable breach of this Lease.
If Tenant is a partnership, any cumulative transfer of more than twenty percent
(20%) of the partnership interests shall require Landlord's consent. If Tenant
is a corporation, any change in the ownership of a controlling interest of the
voting stock of the corporation shall require Landlord's consent.
Section 9.02. TENANT AFFILIATE. Tenant may assign this Lease or sublease
the Property, without Landlord's consent, to any corporation which controls, is
controlled by or is under common control with Tenant, or to any corporation
resulting from the merger of or consolidation with Tenant ("Tenant's
Affiliate"). In such case, any Tenant's Affiliate shall assume in writing all
of Tenant's obligations under this Lease.
Section 9.03. NO RELEASE OF TENANT. No transfer permitted by this Article
Nine, whether with or without Landlord's consent, shall release Tenant or change
Tenant's primary liability to pay the rent and to perform all other obligations
of Tenant under this Lease. Xxxxxxxx's acceptance of rent from any other person
is not a waiver of any provision of this Article Nine. Consent to one transfer
is not a consent to any subsequent transfer. If Xxxxxx's transferee defaults
under this Lease, Landlord may proceed directly against Tenant without pursuing
remedies against the transferee. Landlord may consent to subsequent assignments
or modifications of this Lease by Xxxxxx's transferee, without notifying Tenant
or obtaining its consent. Such action shall not relieve Xxxxxx's liability
under this Lease.
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Section 9.04. OFFER TO TERMINATE. If Tenant desires to assign the Lease
or sublease the Property, Tenant shall have the right to offer, in writing, to
terminate the Lease as of a date specified in the offer. If Landlord elects in
writing to accept the offer to terminate within twenty (20) days after notice
of the offer, the Lease shall terminate as of the date specified and all the
terms and provisions of the Lease governing termination shall apply. If
Landlord does not so elect, the Lease shall continue in effect until otherwise
terminated and the provisions of Section 9.05 with respect to any proposed
transfer shall continue to apply.
Section 9.05. LANDLORD'S CONSENT.
(a) Xxxxxx's request for consent to any transfer described in Section 9.01
shall set forth in writing the details of the proposed transfer, including the
name, business and financial condition of the prospective transferee, financial
details of the proposed transfer (e.g., the term of and the rent and security
deposit payable under any proposed assignment or sublease), and any other
information Landlord deems relevant. Landlord shall have the right to withhold
consent, if reasonable, or to grant consent, based on the following factors: (i)
the business of the proposed assignee or subtenant and the proposed use of the
Property; (ii) the net worth and financial reputation of the proposed assignee
or subtenant; (iii) Tenant's compliance with all of its obligations under the
Lease; and (iv) such other factors as Landlord may reasonably deem relevant. If
Landlord objects to a proposed assignment solely because of the net worth and/or
financial reputation of the proposed assignee, Tenant may nonetheless sublease
(but not assign), all or a portion of the Property to the proposed transferee,
but only on the other terms of the proposed transfer.
(b) If Tenant assigns or subleases, the following shall apply:
(i) Tenant shall pay to Landlord as Additional Rent under the Lease
the Landlord's Share (stated in Section 1.13) of the Profit (defined below)
on such transaction as and when received by Xxxxxx, unless Xxxxxxxx gives
written notice to Xxxxxx and the assignee or subtenant that Landlord's
Share shall be paid by the assignee or subtenant to Landlord directly. The
"Profit" means (A) all amounts paid to Tenant for such assignment or
sublease, including "key" money, monthly rent in excess of the monthly rent
payable under the Lease, and all fees and other consideration paid for the
assignment or sublease, including fees under any collateral agreements,
less (B) costs and expenses directly incurred by Tenant in connection with
the execution and performance of such assignment or sublease for real
estate broker's commissions and costs of renovation or construction of
tenant improvements required under such assignment or sublease. Tenant is
entitled to recover such costs and expenses before Tenant is obligated to
pay the Landlord's Share to Landlord. The Profit in the case of a sublease
of less than all the Property is the rent allocable to the subleased space
as a percentage on a square footage basis.
(ii) Tenant shall provide Landlord a written statement certifying all
amounts to be paid from any assignment or sublease of the Property within
thirty (30) days after the transaction documentation is signed, and
Landlord may inspect Tenant's books and records to verify the accuracy of
such statement. On written request, Tenant shall promptly furnish to
Landlord copies of all the transaction documentation, all of which shall be
certified by Tenant to be complete, true and correct. Xxxxxxxx's receipt
of Landlord's Share shall not be a consent to any further assignment or
subletting. The breach of Tenant's obligation under this Paragraph 9.05(b)
shall be a material default of the Lease.
Section 9.06. NO MERGER. No merger shall result from Xxxxxx's sublease of
the Property under this Article Nine, Xxxxxx's surrender of this Lease or the
termination of this Lease in any other manner. In any such event, Landlord may
terminate any or all subtenancies or succeed to the interest of Xxxxxx as
sublandlord under any or all subtenancies.
ARTICLE TEN: DEFAULTS; REMEDIES
Section 10.01. COVENANTS AND CONDITIONS. Xxxxxx's performance of each of
Tenant's obligations under this Lease is a condition as well as a covenant.
Xxxxxx's right to continue in possession of the Property is conditioned upon
such performance. Time is of the essence in the performance of all covenants
and conditions.
Section 10.02. DEFAULTS. Tenant shall be in material default under this
Lease:
(a) If Xxxxxx abandons the Property or if Xxxxxx's vacation of the Property
results in the cancellation of any insurance described in Section 4.04;
(b) If Tenant fails to pay rent or any other charge when due;
(c) If Tenant fails to perform any of Xxxxxx's non-monetary obligations
under this Lease for a period of thirty (30) days after written notice from
Landlord; provided that if more than thirty (30) days are required to complete
such performance, Tenant shall not be in default if Tenant commences such
performance within the thirty (30) -day period and thereafter diligently pursues
its completion. However, Landlord shall not be required to give such notice if
Xxxxxx's failure to perform constitutes a non-curable breach of this Lease. The
notice required by this Paragraph is intended to satisfy any and all notice
requirements imposed by law on Landlord and is not in addition to any such
requirement.
9
(d) (i) If Tenant makes a general assignment or general arrangement for
the benefit of creditors; (ii) if a petition for adjudication of bankruptcy or
for reorganization or rearrangement is filed by or against Tenant and is not
dismissed within thirty (30) days; (iii) if a trustee or receiver is appointed
to take possession of substantially all of Tenant's assets located at the
Property or of Tenant's interest in this Lease and possession is not restored to
Tenant within thirty (30) days; or (iv) if substantially all of Tenant's assets
located at the Property or of Tenant's interest in this Lease is subjected to
attachment, execution or other judicial seizure which is not discharged within
thirty (30) days. If a court of competent jurisdiction determines that any of
the acts described in this subparagraph (d) is not a default under this Lease,
and a trustee is appointed to take possession (or if Tenant remains a debtor
in possession) and such trustee or Tenant transfers Tenant's interest hereunder,
then Landlord shall receive, as Additional Rent, the excess, if any, of the rent
(or any other consideration) paid in connection with such assignment or sublease
over the rent payable by Tenant under this Lease.
(e) If any guarantor of the Lease revokes or otherwise terminates, or
purports to revoke or otherwise terminate, any guaranty of all or any portion of
Tenant's obligations under the Lease. Unless otherwise expressly provided, no
guaranty of the Lease is revocable.
Section 10.03. REMEDIES. On the occurrence of any material default 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:
(a) Terminate Xxxxxx's right to possession of the Property by any lawful
means, in which case this Lease shall terminate and Tenant shall immediately
surrender possession of the Property 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 (i) the worth at the time of the award of the unpaid
Base Rent, Additional Rent and other charges which Landlord had earned at the
time of the termination; (ii) the worth at the time of the award of the amount
by which the unpaid Base Rent, Additional Rent and other charges which Xxxxxxxx
would have earned after termination until the time of the award exceeds the
amount of such rental loss that Tenant proves Landlord could have reasonably
avoided; (iii) the worth at the time of the award of the amount by which the
unpaid Base Rent, Additional Rent and other charges which Xxxxxx would have paid
for the balance of the Lease term after the time of award exceeds the amount of
such rental loss that Tenant proves Landlord could have reasonably avoided; and
(iv) any other amount necessary to compensate Landlord for all the detriment
proximately caused by Xxxxxx's failure to perform its obligations under the
Lease or which in the ordinary course of things would be likely to result
therefrom, including, but not limited to, any costs or expenses Landlord incurs
in maintaining or preserving the Property after such default, the cost of
recovering possession of the Property, expenses of reletting, including
necessary renovation or alteration of the Property, Landlord's reasonable
attorneys' fees incurred in connection therewith, and any real estate commission
paid or payable. As used in subparts (i) and (ii) above, the "worth at the time
of the award" is computed by allowing interest on unpaid amounts at the rate of
fifteen percent (15%) per annum, or such lesser amount as may then be the
maximum lawful rate. As used in subpart (iii) above, the "worth at the time of
the award" is computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of the award, plus one percent
(1%). If Tenant has abandoned the Property, Landlord shall have the option of
(i) retaking possession of the Property and recovering from Tenant the amount
specified in this Paragraph 10.03(a), or (ii) proceeding under Paragraph
10.03(b);
(b) Maintain Tenant's right to possession, in which case this Lease shall
continue in effect whether or not Tenant has abandoned the Property. 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;
(c) Pursue any other remedy now or hereafter available to Landlord under
the laws or judicial decisions of the state in which the Property is located.
Section 10.04. REPAYMENT OF "FREE" RENT. If this Lease provides for a
postponement of any monthly rental payments, a period of "free" rent or other
rent concession, such postponed rent or "free" rent is called the "Abated
Rent". Tenant shall be credited with having paid all of the Abated Rent on the
expiration of the Lease Term only if Xxxxxx has fully, faithfully, and
punctually performed all of Tenant's obligations hereunder, including the
payment of all rent (other than the Abated Rent) and all other monetary
obligations and the surrender of the Property in the physical condition required
by this Lease. Tenant acknowledges that its right to receive credit for the
Abated Rent is absolutely conditioned upon Tenant's full, faithful and punctual
performance of its obligations under this Lease. If Tenant defaults and does
not cure within any applicable grace period, the Abated Rent shall immediately
become due and payable in full and this Lease shall be enforced as if there were
no such rent abatement or other rent concession. In such case Abated Rent shall
be calculated based on the full initial rent payable under this Lease.
Section 10.05. AUTOMATIC TERMINATION. Notwithstanding any other term or
provision hereof to the contrary, the Lease shall terminate on the occurrence
of any act which affirms the Landlord's intention to terminate the Lease as
provided in Section 10.03 hereof, including the filing of an unlawful
detainer action against Tenant. On such termination, Xxxxxxxx's damages for
default shall include all costs and fees, including reasonable attorneys'
fees that Landlord incurs in connection with the filing, commencement,
pursuing and/or defending of any action in any bankruptcy court or other
court with respect to the Lease; the obtaining of relief from any stay in
bankruptcy restraining any action to evict Tenant; or the pursuing of any
action with respect to Landlord's right to possession of the Property. All
such damages suffered (apart from Base Rent and other rent payable hereunder)
shall constitute pecuniary damages which must be reimbursed to Landlord prior
to assumption of the Lease by Tenant or any successor to Xxxxxx in any
bankruptcy or other proceeding.
Section 10.06. CUMULATAIVE REMEDIES. Xxxxxxxx's exercise of any right
or remedy shall not prevent it from exercising any other right or remedy.
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ARTICLE ELEVEN: PROTECTION OF LENDERS
Section 11.01. SUBORDINATION. Landlord shall have the right to subordinate
this Lease to any ground lease, deed of trust or mortgage encumbering the
Property, any advances made on the security thereof and any renewals,
modifications, consolidations, replacements or extensions thereof, whenever made
or recorded. Tenant shall cooperate with Landlord and any lender which is
acquiring a security interest in the Property or the Lease. Tenant shall execute
such further documents and assurances as such lender may require, provided that
Tenant's obligations under this Lease shall not be increased in any material way
(the performance of ministerial acts shall not be deemed material), and Tenant
shall not be deprived of its rights under this Lease. Xxxxxx's right to quiet
possession of the Property during the Lease Term shall not be disturbed if
Tenant pays the rent and performs all of Tenant's obligations under this Lease
and is not otherwise in default. If any ground lessor, beneficiary or mortgagee
elects to have this Lease prior to the lien of its ground lease, deed of trust
or mortgage and gives written notice thereof to Tenant, this Lease shall be
deemed prior to such ground lease, deed of trust or mortgage whether this Lease
is dated prior or subsequent to the date of said ground lease, deed of trust or
mortgage or the date of recording thereof.
Section 11.02. ATTORNMENT. If Xxxxxxxx's interest in the Property is
acquired by any ground lessor, beneficiary under a deed of trust, mortgagee, or
purchaser at a foreclosure sale, Tenant shall attorn to the transferee of or
successor to Xxxxxxxx's interest in the Property and recognize such transferee
or successor as Landlord under this Lease. Tenant waives the protection of any
statute or rule of law which gives or purports to give Tenant any right to
terminate this Lease or surrender possession of the Property upon the transfer
of Landlord's interest.
Section 11.03. SIGNING OF DOCUMENTS. Tenant shall sign and deliver any
instrument or documents necessary or appropriate to evidence any such attornment
or subordination or agreement to do so. If Tenant fails to do so within ten
(10) days after written request, Tenant hereby makes, constitutes and
irrevocably appoints Landlord, or any transferee or successor of Landlord, the
attorney-in-fact of Tenant to execute and deliver any such instrument or
document.
Section 11.04. ESTOPPEL CERTIFICATES.
(a) Upon Landlord's written request, Tenant shall execute, acknowledge
and deliver to Landlord a written statement certifying: (i) that none of the
terms or provisions of this Lease have been changed (or if they have been
changed, stating how they have been changed); (ii) that this Lease has not been
cancelled or terminated; (iii) the last date of payment of the Base Rent and
other charges and the time period covered by such payment; (iv) that Landlord is
not in default under this Lease (or, if Landlord is claimed to be in default,
stating why); and (v) such other representations or information with respect to
Tenant or the Lease as Landlord may reasonably request or which any prospective
purchaser or encumbrancer of the Property may require. Tenant shall deliver
such statement to Landlord within ten (10) days after Xxxxxxxx's request.
Landlord may give any such statement by Tenant to any prospective purchaser or
encumbrancer of the Property. Such purchaser or encumbrancer may rely
conclusively upon such statement as true and correct.
(b) If Tenant does not deliver such statement to Landlord within such ten
(10) -day period, Landlord, and any prospective purchaser or encumbrancer, may
conclusively presume and rely upon the following facts: (i) that the terms and
provisions of this Lease have not been changed except as otherwise represented
by Landlord; (ii) that this Lease has not been cancelled or terminated except as
otherwise represented by Landlord; (iii) that not more than one month's Base
Rent or other charges have been paid in advance; and (iv) that Landlord is not
in default under the Lease. In such event, Tenant shall be estopped from
denying the truth of such facts.
Section 11.05. TENANT'S FINANCIAL CONDITION. Within ten (10) days after
written request from Landlord, Tenant shall deliver to Landlord such financial
statements as Landlord reasonably requires to verify the net worth of Tenant or
any assignee, subtenant, or guarantor of Tenant. In addition, Tenant shall
deliver to any lender designated by Landlord any financial statements required
by such lender to facilitate the financing or refinancing of the Property.
Tenant represents and warrants to Landlord that each such financial statement is
a true and accurate statement as of the date of such statement. All financial
statements shall be confidential and shall be used only for the purposes set
forth in this Lease.
ARTICLE TWELVE: LEGAL COSTS
Section 12.01 LEGAL PROCEEDINGS. If Tenant or Landlord shall be in breach
or default under this Lease, such party (the "Defaulting Party") shall reimburse
the other party (the "Nondefaulting Party") upon demand for any costs or
expenses that the Nondefaulting Party incurs in connection with any breach or
default of the Defaulting Party under this Lease, whether or not suit is
commenced or judgment entered. Such costs shall include legal fees and costs
incurred for the negotiation of a settlement, enforcement of rights or
otherwise. Furthermore, if any action for breach of or to enforce the provisions
of this Lease is commenced, the court in such action shall award to the party
in whose favor a judgment is entered, a reasonable sum as attorneys' fees and
costs. The losing party in such action shall pay such attorneys' fees and
costs. Tenant shall also indemnify Landlord against and hold Landlord
harmless from all costs, expenses, demands and liability Landlord may incur
if Landlord becomes or is made a party to any claim or action (a) instituted
by Tenant against any third party, or by any third party against Tenant, or
by or against any person holding any interest under or using the Property by
license of or agreement with Tenant; (b) for foreclosure of any lien for labor
or material furnished to or for Tenant or such other person; (c) otherwise
arising out of or resulting from any act or transaction of Tenant or such
other person; or (d) necessary to protect Landlord's interest under this
Lease in a bankruptcy proceeding, or other proceeding under Title 11 of the
United States Code, as amended. Tenant shall defend Landlord against any
such claim or action at Tenant's expense with counsel reasonably acceptable
to Landlord or, at Landlord's election, Tenant shall reimburse Landlord for
any legal fees or costs Landlord incurs in any such claim or action.
11
Section 12.02. LANDLORD'S CONSENT. Tenant shall pay Landlord's reasonable
attomeys' fees incurred in connection with Xxxxxx's request for Xxxxxxxx's
consent under Article Nine (Assignment and Subletting), or in connection with
any other act which Xxxxxx proposes to do and which requires Xxxxxxxx's consent.
ARTICLE THIRTEEN: MISCELLANEOUS PROVISIONS
Section 13.01. NON-DISCRIMINATION. Tenant promises, and it is a condition
to the continuance of this Lease, that there will be no discrimination against,
or segregation of, any person or group of persons on the basis of race, color,
sex, creed, national origin or ancestry in the leasing, subleasing,
transferring, occupancy, tenure or use of the Property or any portion thereof.
Section 13.02. LANDLORD'S LIABILITY; CERTAIN DUTIES.
(a) As used in this Lease, the term "Landlord" means only the current
owner or owners of the fee title to the Property or the leasehold estate under a
ground lease of the Property at the time in question. Each Landlord is
obligated to perform the obligations of Landlord under this Lease only during
the time such Landlord owns such interest or title. Any Landlord who transfers
its title or interest is relieved of all liability with respect to the
obligations of Landlord under this Lease to be performed on or after the date of
transfer. However, each Landlord shall deliver to its transferee all funds that
Tenant previously paid if such funds have not yet been applied under the terms
of this Lease.
(b) Tenant shall give written notice of any failure by Landlord to perform
any of its obligations under this Lease to Landlord and to any ground lessor,
mortgagee or beneficiary under any deed of trust encumbering the Property whose
name and address have been furnished to Tenant in writing. Landlord shall not
be in default under this Lease unless Landlord (or such ground lessor, mortgagee
or beneficiary) fails to cure such non-performance within thirty (30) days after
receipt of Tenant's notice. However, if such non-performance reasonably requires
more than thirty (30) days to cure, Landlord shall not be in default if such
cure is commenced within such thirty (30) -day period and thereafter diligently
pursued to completion.
(c) Notwithstanding any term or provision herein to the contrary, the
liability of Landlord for the performance of its duties and obligations under
this Lease is limited to Landlord's interest in the Property, and neither the
Landlord nor its partners, shareholders, officers or other principals shall have
any personal liability under this Lease.
Section 13.03. SEVERABILITY. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal or
unenforceable shall not cancel or invalidate the remainder of such provision or
this Lease, which shall remain in full force and effect.
Section 13.04. INTERPRETATION. The captions of the Articles or Sections
of this Lease are to assist the parties in reading this Lease and are not a part
of the terms or provisions of this Lease. Whenever required by the context of
this Lease, the singular shall include the plural and the plural shall include
the singular. The masculine, feminine and neuter genders shall each include
the other. In any provision relating to the conduct, acts or omissions of
Tenant, the term "Tenant" shall include Tenant's agents, employees, contractors,
invitees, successors or others using the Property with Xxxxxx's expressed or
implied permission.
Section 13.05. INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS. This
Lease is the only agreement between the parties pertaining to the lease of the
Property and no other agreements are effective. All amendments to this Lease
shall be in writing and signed by all parties. Any other attempted amendment
shall be void.
Section 13.06. NOTICES. All notices required or permitted under this Lease
shall be in writing and shall be personally delivered or sent by certified mail,
return receipt requested, postage prepaid. Notices to Tenant shall be delivered
to the address specified in Section 1.03 above, except that upon Xxxxxx's taking
possession of the Property, the Property shall be Tenant's address for notice
purposes. Notices to Landlord shall be delivered to the address specified in
Section 1.02 above. All notices shall be effective upon delivery. Either party
may change its notice address upon written notice to the other party.
Section 13.07. WAIVERS. All waivers must be in writing and signed by the
waiving party. Landlord's failure to enforce any provision of this Lease or its
acceptance of rent shall not be a waiver and shall not prevent Landlord from
enforcing that provision or any other provision of this Lease in the future. No
statement on a payment check from Tenant or in a letter accompanying a payment
check shall be binding on Landlord. Landlord may, with or without notice to
Tenant, negotiate such check without being bound to the conditions of such
statement.
Section 13.08. NO RECORDATION. Tenant shall not record this Lease without
prior written consent from Landlord. However, either Landlord or Tenant may
require that a "Short Form" memorandum of this Lease executed by both parties be
recorded. The party requiring such recording shall pay all transfer taxes and
recording fees.
Section 13.09. BINDING EFFECT; CHOICE OF LAW. This Lease binds any party
who legally acquires any rights or interest in this Lease from Landlord or
Tenant. However, Landlord shall have no obligation to Xxxxxx's successor unless
the rights or interests of Xxxxxx's successor are acquired in accordance with
the terms of this Lease. The laws of the state in which the Property is located
shall govern this Lease.
12
Section 13.10. CORPORATE AUTHORITY; PARTNERSHIP AUTHORITY. If Tenant is a
corporation, each person signing this Lease on behalf of Tenant represents and
warrants that he has full authority to do so and that this Lease binds the
corporation. Within thirty (30) days after this Lease is signed, Tenant shall
deliver to Landlord a certified copy of a resolution of Tenant's Board of
Directors authorizing the execution of this Lease or other evidence of such
authority reasonably acceptable to Landlord. If Tenant is a partnership, each
person or entity signing this Lease for Tenant represents and warrants that he
or it is a general partner of the partnership, that he or it has full authority
to sign for the partnership and that this Lease binds the partnership and all
general partners of the partnership. Tenant shall give written notice to
Landlord of any general partner's withdrawal or addition. Within thirty (30)
days after this Lease is signed, Xxxxxx shall deliver to Landlord a copy of
Xxxxxx's recorded statement of partnership or certificate of limited
partnership.
Section 13.11. JOINT AND SEVERAL LIABILITY. All parties signing this Lease
as Tenant shall be jointly and severally liable for all obligations of Tenant.
Section 13.12. FORCE MAJEURE. If Landlord cannot perform any of its
obligations due to events beyond Landlord's control, the time provided for
performing such obligations shall be extended by a period of time equal to the
duration of such events. Events beyond Xxxxxxxx's control include, but are not
limited to, acts of God, war, civil commotion, labor disputes, strikes, fire,
flood or other casualty, shortages of labor or material, government regulation
or restriction and weather conditions.
Section 13.13. EXECUTION OF LEASE. This Lease may be executed in
counterparts and, when all counterpart documents are executed, the counterparts
shall constitute a single binding instrument. Xxxxxxxx's delivery of this Lease
to Tenant shall not be deemed to be an offer to lease and shall not be binding
upon either party until executed and delivered by both parties.
Section 13.14. SURVIVAL. All representations and warranties of Landlord
and Tenant shall survive the termination of this Lease.
ARTICLE FOURTEEN: BROKERS
Section 14.04. NO OTHER BROKERS. Tenant represents and warrants to
Landlord that Xxxxxx has had no dealings with any agents, brokers, finders or
other parties with whom Xxxxxx has dealt who are or may be entitled to any
commission or fee with respect to this Lease or the Property.
ADDITIONAL PROVISIONS MAY BE SET FORTH IN A RIDER OR RIDERS ATTACHED
HERETO OR IN THE BLANK SPACE BELOW. IF NO ADDITIONAL PROVISIONS ARE
INSERTED, PLEASE DRAW A LINE THROUGH THE SPACE BELOW.
See Rider.
13
Landlord and Xxxxxx have signed this Lease at the place and on the dates
specified adjacent to their signatures below and have initialled all Riders
which are attached to or incorporated by reference in this Lease.
"LANDLORD"
Signed on June 22, 1994 /s/ XXXXX XXXXXX
-----------------------------------
Xxxxx Xxxxxx, as Trustee of the
Xxxxx Xxxxxx and Xxxx Xxxxxx
Family Trust dated January 19, l987
at 0000 Xxxx Xxxxxxx
By:
-------------------------------
Its:
-------------------------------
By:
-------------------------------
Its:
-------------------------------
"TENANT"
Signed on June 22, 1994 /s/ XXXX XXXXXXXXXXX
-----------------------------------
Xxxx Xxxxxxxxxxx, individually
at RETROSPETTIVA INC.
----------------------------------- -----------------------------------
By:
-------------------------------
Its:
-------------------------------
By:
-------------------------------
Its:
-------------------------------
IN ANY REAL ESTATE TRANSACTION, IT IS RECOMMENDED THAT YOU CONSULT WITH A
PROFESSIONAL, SUCH AS A CIVIL ENGINEER, INDUSTRIAL HYGIENIST OR OTHER PERSON
WITH EXPERIENCE IN EVALUATING THE CONDITION OF THE PROPERTY, INCLUDING THE
POSSIBLE PRESENCE OF ASBESTOS, HAZARDOUS MATERIALS AND UNDERGROUND STORAGE
TANKS.
THIS PRINTED FORM LEASE HAS BEEN DRAFTED BY LEGAL COUNSEL AT THE DIRECTION
OF THE SOUTHERN CALIFORNIA CHAPTER OF THE SOCIETY OF INDUSTRIAL AND OFFICE
REALTORS,-REGISTERED TRADEMARK- INC. NO REPRESENTATION OR RECOMMENDATION IS
MADE BY THE SOUTHERN CALIFORNIA CHAPTER OF THE SOCIETY OF INDUSTRIAL AND OFFICE
REALTORS,-REGISTERED TRADEMARK- INC., ITS LEGAL COUNSEL, THE REAL ESTATE BROKERS
NAMED HEREIN, OR THEIR EMPLOYEES OR AGENTS, AS TO THE LEGAL SUFFICIENCY, LEGAL
EFFECT OR TAX CONSEQUENCES OF THIS LEASE OR OF THIS TRANSACTION. LANDLORD AND
TENANT SHOULD RETAIN LEGAL COUNSEL TO ADVISE THEM ON SUCH MATTERS AND SHOULD
RELY UPON THE ADVICE OF SUCH LEGAL COUNSEL.
14
RIDER TO INDUSTRIAL REAL ESTATE LEASE
This Rider to Industrial Real Estate Lease (this "Rider") is attached to
and forms a part of the Industrial Real Estate (Single-Tenant Facility) (the
"Lease") dated June 21, 1994 between Xxxxx Xxxxxx, as Trustee of the Xxxxx
Xxxxxx and Xxxx Xxxxxx Family Trust dated January 19, 1987, as Landlord, and
Xxxx Xxxxxxxxxxx/Magellan, jointly and severally, as Tenant, covering the
property located at 0000 X. Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx, as
more particularly described in the Lease. Capitalized terms used herein and not
otherwise defined shall have the same meaning as set forth in the Lease. In
the event of any conflict or inconsistency between the terms and provisions of
this Rider and the terms and provisions of the Lease, the terms and provisions
of this Rider shall prevail.
The terms and provisions of the Lease are hereby modified or supplemented
as follows:
1. SECTION 4.02(c). JOINT ASSESSMENT. Section 4.02(c) is hereby deleted
in its entirety and the following is hereby inserted in its place:
"Landlord and Tenant hereby acknowledge and agree that the Property is
assessed together with the real property adjacent thereto commonly known as
0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx ("Adjacent
Property"). The Property and the Adjacent Property are together referred to
herein as the "Project." Notwithstanding any provision of Section 4.02(a)
to the contrary, and subject to the provisions of Paragraph 4.07 below, with
respect to the Project Tax (as defined below) only, Tenant shall pay twenty-
five percent (25%) of such Project Tax in excess of Eleven Thousand Five
Hundred Fifty-Five and No/100 Dollars ($11,555.00) in each calendar year
during the Lease Term. Notwithstanding the preceding sentence, with respect
to any and all partial calendar years during the Lease Term, the Eleven
Thousand Five Hundred Fifty-Five and No/100 Dollars ($11,555.00) figure
shall be prorated based on the actual number of calendar months, or portion
thereof, in which the Lease is in effect in the applicable calendar year.
As used herein, the term "Project Tax" means only the tax imposed against
the Project as shown on each annual tax bill for the Project, which tax is
payable in two installments, one by no later than December 10 of the year in
which the tax bill is received, and the other by no later than April 10 of
the year following the year in which the tax bill is received."
2. SECTION 4.04. INSURANCE POLICIES. The following is hereby added after
Section 4.04(c) as a new Section 4.04(d):
"(d) PERSONAL PROPERTY INSURANCE. During the Lease Term, Tenant shall
maintain policies of insurance covering loss of or damage to Tenant's trade
fixtures, furnishings, equipment, inventory, leasehold improvements made by
Tenant and other personal property belonging to Tenant at the Property in
the full amount of their replacement value. Such policy shall contain an
inflation guard endorsement and shall provide protection against all perils
included within the classification of fire, extended coverage, vandalism,
malicious mischief, special extended perils (all risk), sprinkler leakage
and other perils which Landlord may reasonably require."
-1-
3. SECTION 6.01. EXISTING CONDITIONS. The following is hereby added at
the end of Section 6.01:
"Tenant hereby acknowledges and agrees that (i) all alterations,
additions or improvements which Tenant desires to make in order to
prepare the Property for Tenant's occupancy shall be subject to
Landlord's prior written consent, and shall be made by Tenant at
Tenant's sold cost and expense; and (ii) any and all such
alterations, additions and improvements shall be performed by Tenant
in strict accordance with the provisions of Section 6.05.
Notwithstanding any provision of this Section 6.01 to the
contrary, Landlord warrants to Tenant that the existing plumbing,
electrical and HVAC systems in the Property shall be in good
operating condition on the earlier of (i) the Commencement Date or
(ii) the date that Tenant first occupies the Property. If a
non-compliance with said warranty exists as of the earlier of (i)
the Commencement Date or (ii) the date that Tenant first occupies
the Property, Landlord shall promptly, after receipt of written
notice from Tenant setting forth with specificity the nature and
extent of such non-compliance, rectify the same at Landlord's
expense. If Tenant does not give Landlord written notice of any
non-compliance with this warranty within thirty (30) days after the
earlier of (i) the Commencement Date or (ii) the date that Tenant
first occupies the Property, correction of all non-compliances
shall be the obligation of Tenant at Tenant's sole cost and
expense. Except for Landlord's obligation to correct any
non-compliance with this warranty as provided above, nothing
contained herein shall require Landlord to maintain or repair the
plumbing, electrical or HVAC systems during the Lease Term.
4. SECTION 6.05. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS. The following
is hereby added after Section 6.05(b) as a new Section 6.05(c):
"(c) Tenant shall keep the Property free and clear of all liens,
security interests and encumbrances (collectively, 'Liens') arising
out of or in connection with any alterations, additions or
improvements made by or for Tenant, or any labor, services or
materials provided for or at the request of Tenant. Tenant shall
indemnify and defend Landlord, and hold Landlord harmless, from and
against (i) all Liens; (ii) the removal of all Liens and any
actions or proceedings related thereto; and (iii) any and all
losses, costs, damages, liabilities and expenses (including,
without limitation, attorneys' fees) incurred by Landlord in
connection with the foregoing. If Tenant fails to keep the Property
free from Liens, then (A) without in any way limiting any other
rights or remedies available to Landlord as a result thereof, (B)
without inquiry into the validity of such Liens, and (C) without
regard to any defense or offset Tenant may have against the
claimant on whose behalf the Lien was filed, Landlord may take such
action as Landlord deems necessary to
-2-
discharge such Liens, including, without limitation, making payment to the
claimant on whose behalf the Lien was filed, in which event Tenant shall
pay to Landlord upon demand any such sum so paid by Landlord."
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have executed this
Rider concurrently with their execution of the Lease.
"LANDLORD"
/s/ XXXXX XXXXXX
-----------------------------------
Xxxxx Xxxxxx, as Trustee of the
Xxxxx Xxxxxx and Xxxx Xxxxxx
Family Trust dated January 19, 1987
"TENANT"
/s/ XXXX XXXXXXXXXXX
-----------------------------------
Xxxx Xxxxxxxxxxx, individually
RETROSPETTIVA, INC.
By: President
-------------------------------
Its
----------------------------
By:
-------------------------------
Its
----------------------------
-3-
[LOGO] BANK OF AMERICA
APPLICATION AND AGREEMENT
FOR COMMERCIAL LETTER OF CREDIT
To: Bank of America National Trust and Savings Association ("Bank")
A. APPLICATION.
_________________________________________ ("Customer") requests Bank to issue
an irrevocable commercial letter of credit ("Letter of Credit") as follows:
/ / Full text teletransmission / / Airmail with brief preliminary
teletransmission advice / / Airmail / /Courier
1. Advising bank and address (if left blank, Bank will select advising bank)
-----------------------------------------------------------------------------
FOR BANK USE ONLY
2. L/C No.
---------------------------------
-----------------------------------------------------------------------------
3. Expiration Date: DRAFTS TO BE DRAWN AND PRESENTED TO THE NEGOTIATING OR
PAYING BANK ON OR BEFORE:
___________________________________________ , 19 ______
4. For account of (Customer Name and Address)
5. In favor of (Beneficiary Name and Address)
6. Amount: ________________________________________________________________
_________________________________________________________________________
__________________________________________________ (In word and figures.)
Currency ________________________________________________________________
_________________________________________________________________________
7. Covering ________% of invoice value. (FULL INVOICE VALUE UNLESS OTHERWISE
SPECIFIED.)
8. Available by drafts at (Tenor) _________________________________ on Bank,
Bank's branch or Bank's correspondent, at Bank's option, or Bank may waive
draft requirement.
9. Partial Shipment:
/ / Permitted / / Not Permitted
10. Transhipment (NOT APPLICABLE TO AIR SHIPMENTS OR COMBINED TRANSPORT
SHIPMENTS.)
/ / Permitted / / Not Permitted
11. Shipment/Dispatch/Taking in Charge from/At Latest For Transportation To
_______________________________________________________________________________
12. Merchandise to be described in invoice as (OMIT UNNECESSARY DETAILS AND
SPECIFY PRICE BASIS IN BOX 13).
_______________________________________________________________________________
_______________________________________________________________________________
13. Price basis (CHECK ONE):
/ / FOB / / CFR / / CIF / / Other: ____________________________________
14. Documents required (Check applicable boxes below):
/ / Signed commercial invoice in duplicate.
/ / Marine and war insurance policy or certificate for 110% invoice value in
duplicate.
Insurance to be effected by: __________________________________________
/ / Original clean / / Air / / Truck / / Rail transport document.
Consigned to: _________________________________________________________
Notify (if different from consignee):
/ / Full set of original clean on board vessel marine bill of lading, to
order of shipper, blank endorsed, marked: "Notify _____________________
_____________________________________________________________________."
/ / Full set of original clean / / on board vessel / / on board inland
carrier combined transport bill of lading, to order of shipper, blank
endorsed, marked: "Notify ___________________________________________."
Bill of lading marked (select one): / / freight prepaid / / freight
collect.
/ / Other documents:_______________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
15. Special Instructions to be included in the Letter of Credit:_______________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
Special Instructions for Bank of America: _________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
DOCUMENTS MUST BE PRESENTED TO THE NEGOTIATING OR PAYING BANK NO LATER THAN ___
DAYS AFTER DATE OF TRANSPORT DOCUMENT (ON BOARD VALIDATION APPLICABLE FOR OCEAN
SHIPMENT) BUT WITHIN THE VALIDITY OF THE LETTER OF CREDIT. ALL DOCUMENTS TO BE
FORWARDED IN ONE COVER, BY AIRMAIL, UNLESS OTHERWISE STATED UNDER SPECIAL
INSTRUCTIONS.
___________________________________________________________________________
CUSTOMER UNDERSTANDS THAT THE FINAL FORM OF THE LETTER OF CREDIT MAY BE
SUBJECT TO SUCH REVISIONS AND CHANGES AS ARE DEEMED NECESSARY OR APPROPRIATE
BY BANK'S LETTER OF CREDIT ISSUING UNIT AND CUSTOMER HEREBY CONSENTS TO SUCH
REVISIONS AND CHANGES.
B. AGREEMENT.
In consideration of Bank issuing for the account of Customer the Letter
of Credit, Xxxxxxxx agrees to the following:
1. Customer shall pay Bank, on demand, all amounts paid by Bank under or
in respect of the Letter of Credit.
2. Customer shall pay Bank, on demand, commissions and fees for issuance
of the Letter of Credit, amendments to the Letter of Credit, payments under
the Letter of Credit, automatic extensions of the Letter of Credit,
cancellation of the Letter of Credit, and other services in the amounts
Customer and Bank may agree, or, in the absence of such agreement, in the
amounts customarily charged by Bank on the date of Bank's demand.
3. All payments and deposits by Customer under this Application and
Agreement shall be made at the branch or office Bank may designate from time
to time. Bank shall have no obligation to pay Customer interest on any
deposit made by Customer under this Application and Agreement.
4. (a) All payments and deposits by Customer under this Application and
Agreement shall be in the currency in which the Letter of Credit is payable,
except that Bank may, at its option, require payments and deposits by
Customer under this Application and Agreement to be made in U.S. Dollars if
the Letter of Credit is payable in a foreign currency.
(b) The amount of each payment and each deposit by Customer under this
Application and Agreement in U.S. Dollars for a Letter of Credit payable in a
foreign currency shall be determined by converting the relevant amount to
U.S. Dollars at the Conversion Rate in effect:
(i) with respect to each payment under Paragraph B.1., on the date
the payment is made by Bank under or in respect of the Letter of Credit; and
(ii) with respect to each payment not falling under the preceding
clause (i) and each deposit, on the date of Bank's demand for such payment or
deposit.
(c) If a U.S. Dollar deposit by Customer under this Application and
Agreement for a Letter of Credit payable in a foreign currency becomes less
than the U.S. Dollar equivalent of the undrawn amount of the Letter of Credit
because of any variation in rates of exchange, Customer shall deposit with
Bank, on demand, additional amounts in U.S. Dollars so that the total amount
deposited by Customer under this Application and Agreement is not less than
the U.S. Dollar equivalent of the undrawn amount of the Letter of Credit,
determined by using the Conversion Rate on the date of Bank's latest demand.
(d) "Conversion Rate" means the rate quoted by Bank in San Francisco,
California, for the purchase from Bank of the relevant foreign currency with
U.S. Dollars.
5. Customer shall reimburse or compensate Bank, on demand, for all
costs incurred, losses suffered and payments made by Bank which are applied
or allocated by Bank to the Letter of Credit (as determined by Bank) by
reason of any and all present or future reserve, deposit, assessment or
similar requirements against (or against any class of or change in or in the
amount of assets or liabilities of, or commitments or extensions of credit
by, Bank.
6. If Bank determines that any law, rule, regulation, or guideline
regarding capital adequacy affects or would affect the amount of capital
required to be maintained by Bank or any corporation controlling Bank and
that (taking into consideration Bank's policies with respect to capital
adequacy and Bank's desired return on capital) the amount of required capital
is increased as a result of Bank's obligations under the Letter of Credit,
then, on demand, Customer shall pay Bank additional amounts sufficient as
specified by Bank to compensate Bank for such increase.
7. Customer will obtain, or cause to be obtained, insurance on all
goods described in the Letter of Credit. The insurance will cover fire and
other usual risks, and any additional risks Bank may request. Customer
authorizes and empowers Bank to collect the proceeds of any insurance and
apply such proceeds against any of Customer's obligations to Bank under this
Application and Agreement.
8. Customer represents and warrants to Bank that Customer has obtained
all import and export licenses and other governmental approvals required for
the goods and the documents described in the Letter of Credit.
9. All directions and correspondence relating to the Letter of Credit
are to be sent at Customer's risk and expense.
10. (a) Customer hereby grants to Bank a security interest in the
following described property, whether now owned or hereafter acquired by
Customer ("Collateral"):
(i) All goods and documents described in the Letter of Credit;
(ii) All negotiable and nonnegotiable documents of title covering any
of the above-described property;
(iii) All rights under contracts of insurance covering any of the
above described property;
(iv) All deposit accounts now or hereafter maintained with Bank
with respect to the Letter of Credit; and
(v) All proceeds of any of the above described property.
(b) The Collateral secures and will secure all obligations and
liabilities of Customer to Bank under or in respect of this Application and
Agreement, whether now existing or hereafter incurred or created, whether due
or to become due, and whether absolute or contingent.
(c) If Customer defaults under any provision of this Application and
Agreement, Bank may enforce the security interest granted hereunder pursuant
to the California Uniform Commercial Code or any other applicable law. In
the event of any deficiency, Customer will immediately pay the same to Bank.
(d) In the event the Collateral should suffer any decline in value,
Customer shall, on demand, deliver to Bank additional Collateral satisfactory
to Bank.
11. Customer shall pay interest, on demand, on any amount not paid when
due under this Application and Agreement from the due date until payment in
full at a rate per annum equal to the rate of interest publicly announced
from time to time by Bank in San Francisco, California, as its reference rate
plus three percentage points. The reference rate is set by Bank based on
various factors, including Bank's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing
some credits. Bank may price credit at, above or below the reference rate.
Any change in Bank's reference rate shall take effect at the opening of
business on the day specified in Bank's public announcement of a change in
Bank's reference rate. Interest will be computed on the basis of a 365 day
year and actual days elapsed.
12. Customer authorizes Bank to charge any of Customer's accounts with
Bank for all amounts then due and payable to Bank under this Application and
Agreement.
13. Customer shall pay, on demand, all costs, expenses, and attorneys'
fees (including allocated costs for in-house legal services) incurred by Bank
in connection with (a) any dispute concerning the Letter of Credit or this
Application and Agreement, or (b) the enforcement of this Application and
Agreement.
14. If any arbitration award, judgment or order is given or made for the
payment of any amount due under this Application and Agreement and such
arbitration award, judgment or order is expressed in a currency other than
the currency required under this Application and Agreement, Customer shall
indemnify Bank against and hold Bank harmless from all loss and damage
incurred by Bank as a result of any variation in rates of exchange between
the date of such arbitration award, judgment or order and the date of payment
(or, in the case of partial payments, the date of each partial payment)
thereof. This indemnity shall constitute an obligation separate and
independent from the other obligations contained in this Application and
Agreement, shall give rise to a separate and independent cause of action,
shall apply irrespective of any indulgence granted by Bank from time to time,
and shall continue in full force and effect notwithstanding any arbitration
award, judgment or order for a liquidated sum in respect of an amount due
under this Application and Agreement.
15. The word "Customer" in this Application and Agreement refers to each
signer (other than Bank) of this Application and Agreement. If this
Application and Agreement is signed by more than one Customer, their
obligations under this Application and Agreement shall be joint and several.
16. Subject to the laws, customs, and practices of the trade in the area
where the beneficiary is located, the Letter of Credit will be subject to,
and performance under the Letter of Credit by Bank, its correspondents, and
the beneficiary will be governed by, the "Uniform Customs and Practice for
Documentary Credits (1983 Revision), International Chamber of Commerce,
Publication No. 400," or by later Uniform Customs and Practice fixed by later
Congresses of the International Chamber of Commerce as in effect on the date
the Letter of Credit is issued.
17. This Application and Agreement shall be governed by and construed
under the laws of the State of California, to the jurisdiction of which the
parties hereto submit.
18. Any controversy among the parties arising out of or relating to this
Application and Agreement or the Letter of Credit shall at the request of any
party be determined by arbitration. The arbitration shall be conducted in
San Francisco, California, under the United States Arbitration Act (Title 9,
U.S. Code), notwithstanding any choice of law provision in this Application
and Agreement or the Letter of Credit, and pursuant to the Commercial Rules
of the American Arbitration Association. The arbitrators shall give effect
to statutes of limitation in determining any claim. Any controversy
concerning whether an issue is arbitrable shall be determined by the
arbitrators. Judgment upon the arbitration award may be entered in any court
having jurisdiction. This Paragraph shall not limit the right of any party
to this Application and Agreement or the Letter of Credit to exercise lawful
self-help remedies or to obtain provisional or ancillary remedies from a
court of competent jurisdiction before, during, or after the pendency of any
arbitration. The seeking, obtaining or exercising of such a remedy does not
waive the right of any party, including the party who sought such remedy, to
resort to arbitration. Notwithstanding the foregoing, no controversy shall be
submitted to arbitration under this Paragraph without the consent of all
parties if, at the time of the proposed submission, such controversy arises
from or relates to an obligation to Bank which is secured by real property
collateral.
This Application and Agreement is executed by Customer on________________, 19__.
_____________________________________
Name of Customer
By___________________________________ Title _______________________________
By___________________________________ Title _______________________________
___________________________________________________________________________
FOR OFFICE USE ONLY
___________________________________________________________________________
FX-150 TO: / / TRADE FINANCE SERVICES - Concord #6569 / / TRADE FINANCE
SERVICES - Los Angeles # 5655
___________________________________________________________________________
COMMISSION / / Per MISC-42 / / Other _________________________________________
/ / Charge Branch / / Charge customer account directly
/ / Commissions and Charges only
/ / Drawings, Commissions, and Charges / / Prepaid-UFE attached
___________________________________________________________________________
BANK OFFICER NAME (Type or Print) BANKAMERINET NO. DDA CUSTOMER A/C#
___________________________________________________________________________
BANK OFFICER SIGNATURE BRANCH/DEPT. NAME BRANCH/DEPT. NO.
___________________________________________________________________________
BANK OFFICER SIGNATURE
_______________________________________
ASSIGNMENT OF LEASE
This Assignment of Lease ("Assignment") is entered into this 16th day of
April, 1996 by and between Xxxx Xxxxxxxxxxx as Assignor ("Boro") and
Retrospettiva, Inc., a California corporation as Assignee ("Retro").
EXPLANATORY NOTES
A. An industrial Real Estate Lease dated June 21, 1994 was entered into
by and between Xxxxx Xxxxxx, as Trustee of the Xxxxx Xxxxxx and Xxxx Xxxxxx
Family Trust dated January 15, 1987 as landlord ("Landlord") and Xxxx as tenant
regarding approximately 2,200 rentable square feet of a building commonly known
as 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 which was
amended by a First Amendment of Lease dated October 19, 1994 (collectively, the
"Lease"), a copy of which is attached hereto as Exhibit A and made a part
hereof.
X. Xxxx and Retro desire, among other things, to have (i) Boro assign to
Retro all of Boro's interest as tenant in the Lease, (ii) Retro assume all
obligations of tenant pursuant to the Lease and (iii) Retro guarantee full
performance of all tenant obligations under the Lease by Retro and indemnify and
hold Boro harmless from any and all claims and damages resulting from non-
performance by Retro as tenant under the Lease.
C. Retro is controlled by Boro and Section 9.02 of the Lease permits the
assignment of the tenant's interest, without the Landlord's consent, to any
corporation which, among other things, is controlled by the tenant.
In consideration of the foregoing explanatory notes and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Boro and Retro agree as set forth below.
1. ASSIGNMENT. Boro hereby assigns and transfers all of his right,
interest and title, including any security deposits and prepaid rents, to Retro.
2. ASSUMPTION OF OBLIGATIONS. Retro hereby assumes all obligations,
monetary and otherwise, of Boro as tenant pursuant to the Lease, warrants and
guarantees to Boro that it will timely perform all duties and obligations as
tenant under the Lease and agrees to indemnify and hold Boro harmless from any
and all duties, obligations, claims and damages, including but not limited to
attorney's fees and court costs, resulting from this Assignment and Retro's
nonperformance of any obligations or duties as tenant under the Lease.
3. REPRESENTATIONS OF BORO. Boro represents that the Lease is in full
force and effect, that there are no agreements between Boro and the Landlord
other than those contained in the Lease, that neither the Landlord nor Boro are
in default under any section or provision of the Lease and that this Assignment
does not require any approval, written or otherwise, by
the Landlord. Xxxx further represents that he controls Retro as required
under Section 9.02 of the Lease for an assignment without Xxxxxxxx's consent.
4. MISCELLANEOUS PROVISIONS.
4.1. ENTIRE AGREEMENT. This Assignment represents the entire
agreement between Boro and Retro with respect to the subject matter contained
herein, and shall supersede all other agreements, undertakings and
communications of any kind, whether written or oral.
4.2. HEADINGS. The headings contained herein are for convenience
only and have no force or effect.
4.3. BINDING EFFECT. This Assignment shall be binding upon the
parties hereto and shall inure to the benefit of their assignees, successors,
heirs or representatives.
4.4. ASSIGNMENT. This Assignment or the rights of tenant under the
Lease may not be assigned by Retro without the prior written consent of Boro
which shall not be unreasonably withheld. If Retro does assign its rights
under the Lease, the indemnification provision under Section 2 above shall
remain in full force and effect.
IN WITNESS WHEREOF, Xxxx and Retro have entered into this Assignment
effective on the date set forth above.
RETROSPETTIVA, INC.
/s/ XXXX XXXXXXXXXXX By: /s/ ILLEGIBLE
------------------------------------- -------------------------------
XXXX XXXXXXXXXXX President
2
FIRST AMENDMENT OF LEASE
1. IDENTIFICATION AND PARTIES. This First Amendment of Lease (this
"Amendment"), dated for identification purposes only October 19, 1994, is
entered into by and between Xxxxx Xxxxxx, as Trustee of the Xxxxx Xxxxxx and
Xxxx Xxxxxx Family Trust dated January 15, 1987 ("Landlord"), and Xxxx
Xxxxxxxxxxx/Xxxxxxxx, jointly and severally ("Tenant").
2. RECITALS.
2.1. Landlord and Tenant are parties to that certain Industrial Real
Estate Lease dated June 21, 1994, covering approximately 2,200 rentable
square feet of a building commonly known as 0000 Xxxx Xxxxxxx Xxxxxxxxx,
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 (the "Lease"). Capitalized terms used herein
and not otherwise defined shall have the same definitions as set forth in the
Lease.
2.2. Landlord and Tenant desire, among other things, to extend the Lease
Term upon and subject to the following terms, provisions and conditions, and to
agree to other matters as set forth herein.
In consideration of the foregoing recitals and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant agree as set forth below.
3. AMENDMENT.
3.1. LEASE TERM. Section 1.05 of the Lease is hereby amended to provide
that the Lease Term shall be for a period of five (5) years and one (1) month
beginning on January 1, 1995 and ending on January 31, 2000.
3.2. EARLY OCCUPANCY. Section 2.03 of the Lease is hereby deleted in
its entirety and is replaced with the following:
"Landlord shall permit Tenant to occupy the Property prior to the
Commencement Date from September 15, 1994 to December 31, 1994, provided
that Xxxxxx's occupancy of the Property shall be subject to all of the
provisions of this Lease. Early occupancy of the Property shall not
advance the expiration date of this Lease. Tenant shall not pay Base Rent
but shall pay all other charges specified in this Lease for the early
occupancy period commencing on September 15, 1994 and ending on November
30, 1994. Tenant shall pay Base Rent and all other charges specified in
this Lease for the early occupancy period commencing on December 1, 1994
and ending on December 31, 1994. For purposes of this Lease, Xxxxxxxx's
forgiveness of Tenant's obligation to pay Base Rent for the early occupancy
period from September 15, 1994 through and including November 30, 1994
shall be deemed to constitute 'Abated Rent' as defined herein."
3.3. BASE RENT. Section 3.01 of the Lease is hereby deleted in its
entirety and is replaced with the following:
"TIME AND MANNER OF PAYMENT. On or before the execution of this
Tenant shall pay Landlord the Base Rent in the amount stated in
Paragraph 1.12(a) above for the month of December 1994. On the first
day of the first month of the Lease Term and each month thereafter,
Tenant shall pay Landlord the Base Rent, in advance, without offset,
deduction or prior demand. The Base Rent shall be payable at
Landlord's address or at such other place as Landlord may designate in
writing."
4. MISCELLANEOUS PROVISIONS.
4.1. ENTIRE AGREEMENT. The Lease, as amended by this Amendment, represents
the entire agreement between Landlord and Tenant with respect to the subject
matter hereof, and shall supersede all other agreements, undertakings and
communications of any kind, whether written or oral.
4.2. NO OTHER MODIFICATIONS. Except as expressly amended hereby, the Lease
is unchanged and all other terms, covenants and conditions of the Lease shall
continue in full force and effect.
4.3. FURTHER ASSURANCES. From time to time, upon the reasonable request of
either Landlord or Tenant, the other party shall take further actions and shall
execute such further instruments and documents as are necessary or desirable to
implement the terms, provisions and conditions hereof. All reasonable costs
thereof shall be paid for by the requesting party.
4.4. COUNTERPARTS. This Amendment may be executed in one or more duplicate
counterparts, each of which shall be deemed an original, but all of which
together, when executed, shall constitute one and the same instrument.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Amendment on
the dates set forth opposite their respective signatures below.
"LANDLORD"
Date: 10-19-94 /s/ XXXXX XXXXXX
-------- -----------------------------------
Xxxxx Xxxxxx, as Trustee of the
Xxxxx Xxxxxx and Xxxx Xxxxxx
Family Trust dated January 19, 1987
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
2
"TENANT"
Date: 10-19-94 /s/ XXXX XXXXXXXXXXX
-------- -----------------------------------
XXXX XXXXXXXXXXX, individually
Magellan, a
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Date: By:
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Its:
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Date: By:
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Its:
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3
