EXHIBIT 10.25
THIRD WAREHOUSE LEASE MODIFICATION AGREEMENT
THIS THIRD WAREHOUSE LEASE MODIFICATION AGREEMENT (this "Agreement") is
made and entered into as of the 1st day of November, 1996, by and between
SAFEWAY INC., a Delaware corporation ("Landlord"), and WINCUP HOLDINGS, L.P., a
Delaware limited partnership ("Tenant").
R E C I T A L S
This Agreement is made with reference to the following facts and
objectives:
A. On or about October 27, 1992, Landlord and the predecessor in interest
to Tenant entered into a Warehouse Lease for those certain premises (the
"Premises") situated in the City of Richmond, County of Contra Costa, State of
California, which Premises are more particularly described in said Warehouse
Lease. Said Warehouse Lease was modified by a First Warehouse Lease Modification
Agreement dated as of January 1, 1993, and by a Second Warehouse Lease
Modification Agreement dated February 17, 1995. Said Warehouse Lease, as
modified, is hereinafter referred to as the "Lease".
B. Landlord and Tenant have agreed to certain modifications of the Lease
as set forth below.
NOW, THEREFORE, in consideration of the foregoing and for good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Landlord and Tenant agree as follows:
1. CHANGE IN PREAMBLE.
The name and address set forth in the preamble for Tenant are deleted and
the following language substituted in lieu thereof:
"WINCUP HOLDINGS, L.P.
a Delaware limited partnership
Attn: Xxxxxx X. Xxxxxxxx, Xx. Vice President
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Telephone: 602/000-0000
Facsimile: 602/936-4376"
2. DEMISE OF PREMISES.
Paragraph 1(a) of the Lease is deleted and the following language is
--------------
substituted in lieu thereof:
"(a) Tenant leases from Landlord and Landlord leases to Tenant the
following described property, hereinafter referred to as the "Premises":
"Approximately 106,151 square feet of warehouse space located in Building E
(the "Building") with an address of 000 Xxxxxx Xxx Xxxxxxx, Xxxxx 0,
Xxxxxxxx, Xxxxxxxxxx 00000, which real property is more particularly
described on Exhibit A, attached hereto and incorporated herein by
---------
reference. The Premises are shown as single-hatched on Exhibit A-1 attached
-----------
hereto and incorporated herein by reference."
3. TERM.
Lines 3, 4 and 5 of Paragraph 2(a) of the Lease are deleted and the
--------------
following language is substituted in lieu thereof:
"...original term commencing on November 1, 1992 (the "Lease Term
Commencement Date") and expiring June 30, 1998. On the Lease..."
Additionally, Paragraphs 2(b) and 2(c) are deleted from the Lease and are
------------------------
of no further force or effect.
4. RENT
Paragraph 3(a) is deleted and the following language substituted in lieu
--------------
thereof.
"(a)" Minimum Rent. Tenant shall pay a minimum rent which shall be paid
------------
monthly in advance commencing on January 1, 1993 and thereafter on the first day
of each calender month during the Lease Term in the following amounts:
---------------------------------------------------
Minimum
Period Monthly Rent
---------------------------------------------------
1/1/1993 through 10/31/1996 $23,690.00
---------------------------------------------------
11/1/1996 through 6/30/1998 $26,007.00"
---------------------------------------------------
Additionally, Paragraph 3(c) is deleted and of no further force or effect.
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5. NOTICE.
The last sentence of Paragraph 17, is deleted and of no further force or
------------
effect.
6. RATIFICATION.
Except as otherwise provided herein, the Lease is hereby ratified and
affirmed and remains in full force and effect.
7. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto, their successors, transferees, heirs, personal representatives
and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
respective dates set opposite their signatures below, but this Agreement on
behalf of such party shall be deemed to have been dated as of the date first
above written.
LANDLORD:
SAFEWAY INC.,
a Delaware corporation
Date: 12/18 , 1996 By [SIGNATURE APPEARS HERE]
-------------- -------------------------------
-------------------------------
(type or printed name)
Its Asst. V.P.
--------------------------
Date: 12/18 , 1996 By [SIGNATURE APPEARS HERE]
---------------- -----------------------------
-----------------------------
(type or printed name)
Its Asst. Secretary
--------------------------
TENANT:
WINCUP HOLDINGS, L.P.,
a Delaware Limited partnership
DATE: DEC 12 , 1996 By /s/ Xxxxxx Xxxxxxxx
----------------- -----------------------------
XXXXXX XXXXXXXX
-----------------------------
(type or printed name)
Its SR. VP. ADMIN.
-----------------------------
SECOND WAREHOUSE LEASE MODIFICATION AGREEMENT
THIS SECOND WAREHOUSE LEASE MODIFICATION AGREEMENT (this "Agreement") is
made and entered into this ______ day of _________________, 1995, by and between
SAFEWAY INC., a Delaware corporation ("Landlord"), and XXXXX RIVER PAPER
COMPANY, INC., a Virginia corporation ("Tenant").
R E C I T A L S
This Agreement is made with reference to the following facts and
objectives:
A. On or about October 27, 1992, Landlord and Tenant entered into a
warehouse lease for those certain premises (the "Premises") situated in the City
of Richmond, County of Contra Costa, State of California, which Premises are
more particularly described in the Warehouse Lease. The warehouse lease was
modified by a First Warehouse Lease Modification Agreement dated as of January
1, 1993. The warehouse lease, as modified, is hereinafter referred to as the
"Lease".
B. Landlord and Tenant have agreed to certain modifications of the Lease
as set forth below.
NOW, THEREFORE, in consideration of the foregoing facts and for good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant hereby amend and modify the Lease as follows:
1. DEMISE OF PREMISES. Subparagraph (d) to Paragraph 1 of the Lease is
------------------ ---------------- -----------
hereby deleted in its entirety and the following substituted in lieu thereof:
"(d) Expansion Premises. In addition to the Premises, Tenant leases
------------------
from Landlord and Landlord leases to Tenant the following described
property, hereinafter referred to as the "Expansion Premises":
"Approximately 7,500 square feet of warehouse space located in the
western side of the Building."
The Expansion Premises are shown as single-hatched on Exhibit A-2,
-----------
attached to this Agreement and incorporated into the Lease by this
reference.
2. RENT. Subparagraph (e) of Paragraph 3 of the Lease is hereby deleted
---- ---------------- -----------
in its entirety and the following substituted in lieu thereof:
"(e) Minimum Rent for the Expansion Premises. Tenant shall pay a
---------------------------------------
minimum rent for the Expansion Premises which shall be paid monthly in
advance commencing on February 1, 1995 and thereafter on the first (1st)
day of each calender month during the month-to-month tenancy in the amount
of One Thousand Seven Hundred Twenty-Five Dollars ($1,725)."
3. EFFECTIVE DATE. The provisions of this Agreement shall be effective
--------------
as of February 1, 1995, and the terms and conditions hereof shall only apply
prospectively from such date.
4. RATIFICATION. Except as herein modified the Lease shall remain in
------------
full force and effect and is hereby ratified and affirmed.
5. SUCCESSORS AND ASSIGNS. Each and all of the covenants, terms,
----------------------
agreements and obligations of this Agreement
shall extend to and bind and inure to the benefit of the successors and/or
assigns of said parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
respective dates set opposite their signatures below, but this Agreement on
behalf of such party shall be deemed to have been dated as of the date first
above written.
LANDLORD:
SAFEWAY INC.,
a Delaware corporation
Date: __________, 1995 By________________________________
________________________________
(typed or printed name)
Its_____________________________
Date: __________, 1995 By________________________________
________________________________
(typed or printed name)
Its_____________________________
TENANT:
XXXXX RIVER PAPER COMPANY, INC.
a Virginia corporation
Date: __________, 1995 By /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxx
--------------------------------
(typed or printed name)
Its Vice President Real Estate &
-----------------------------
Corporate Facilities
-----------------------------
EXHIBIT A-2
[MAP APPEARS HERE]
FIRST WAREHOUSE LEASE MODIFICATION AGREEMENT
THIS FIRST WAREHOUSE LEASE MODIFICATION AGREEMENT (the "Agreement") is made
as of the 1st day of January, 1993, by and between SAFEWAY INC., a Delaware
corporation ("Landlord"), and XXXXX RIVER PAPER COMPANY, INC., a Virginia
corporation ("Tenant").
P R E L I M I N A R Y
A. On October 27, 1992, Landlord and Tenant entered into a Warehouse
Lease of certain real property situate in the City of Richmond, County of Contra
Costa, State of California, which real property is more particularly described
in the Warehouse Lease (the "Premises"). Said Warehouse Lease is hereinafter
referred to as the "Lease."
B. Landlord and Tenant desire hereby to amend the Lease to provide for
the modification of the provision set forth in Paragraph 1 thereof and as
otherwise set forth hereinbelow.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreement of the parties hereto to the terms and conditions hereinafter
contained, the parties agree as follows:
1. Effective Date. This Agreement shall be effective as of January 1,
--------------
1993.
2. Demise of Premises. The following language shall be added as a new
------------------
Subparagraph (d) to Paragraph 1 of the Lease:
---------------- -----------
"(d) Expansion Premises. In addition to the Premises, Tenant leases
------------------
from Landlord and Landlord leases to Tenant the following described
property, hereinafter referred to as the "Expansion Premises":
Approximately 7,500 square feet of warehouse space located in the
western side of the Building and approximately 9,760 square feet of
warehouse space located in the eastern portion of the Building. Said
Expansion Premises are shown as single-hatched on Exhibit A-1,
-----------
attached hereto and incorporated herein by reference."
3. Term. The following language shall be added as new Subparagraph (d) to
---- ----------------
Paragraph 2 of the Lease:
-----------
"(d) Occupancy of Expansion Premises. Tenant's occupancy of the
-------------------------------
Expansion Premises pursuant hereto shall be on a month to month basis
terminable on thirty (30) days prior written notice given at any time by
either Landlord or Tenant. All provisions of this Lease, except for those
specifying the lease term, options to extend and minimum monthly rent shall
apply to month-to-month tenancy of the Expansion Premises."
4. Rent. The following language shall be added as a new Subparagraph (e)
---- ----------------
to Paragraph 3 of the Lease:
-----------
"(e) Minimum Rent for the Expansion Premises. Tenant shall pay a
---------------------------------------
minimum rent for the Expansion Premises which shall be paid monthly in
advance commencing on January 1, 1993 and thereafter on the first (1st) day
of each calendar month during the month-to-month tenancy in the amount of
Three Thousand Nine Hundred Sixty-Nine and 80/100 Dollars ($3,969.80)."
5. Ratification of Lease. Except as otherwise provided herein, the Lease
---------------------
is hereby ratified and affirmed and remains in full force and effect.
6. Successors and Assigns. This Agreement shall be binding upon and
----------------------
shall inure to the benefit of the parties hereto, their successors, transferees,
heirs, personal representatives and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
respective dates set opposite their signatures below, but this Agreement, on
behalf of such parties, shall be deemed to have been dated as of the date first
above written.
LANDLORD:
SAFEWAY INC.,
a Delaware corporation
Date: Feb. 15 1993 By [SIGNATURE APPEARS HERE]
--------------, -------------------------------------
Xxxxx
-------------------------------------
(typed or printed name)
Its Asst. V.P.
--------------------------------
Date: ______________, 1993 By [SIGNATURE APPEARS HERE]
-------------------------------------
-------------------------------------
(typed or printed name)
Its Assist. Secretary
---------------------------------
TENANT:
XXXXX RIVER PAPER COMPANY INC.,
a Virginia corporation
Date: ______________, 1993 By /s/ Xxxxxx X. Xxxx
-------------------------------------
Xxxxxx X. Xxxx
-------------------------------------
(typed or printed name)
Date: ______________, 1993 Its DIR. REAL ESTATE
---------------------------------
By _____________________________________
_____________________________________
(typed or printed name)
Its _________________________________
EXHIBIT.
[MAP APPEARS HERE]
WAREHOUSE LEASE
---------------
(the "Lease")
DATE: October 27, 1992
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BETWEEN: SAFEWAY INC., a Delaware corporation ("Landlord")
c/o PROPERTY DEVELOPMENT ASSOCIATES,
a California general partnership
Attn: General Counsel
Re: Facility No. 00-0000-00
00000 X.X. Xxxxxxx Xxxx., Xxxxx #000
Xxxxxxxx, Xxxxxx 00000
Telephone: 503/000-0000
Facsimile: 503/624-7755
AND: XXXXX RIVER PAPER COMPANY, INC., ("Tenant")
a Virginia corporation
Attn: Real Estate Department
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telephone: 804/000-0000
Facsimile: 804/343-4500
In consideration of the mutual agreements herein contained, Landlord and Tenant
hereby agree as follows:
1. Demise of Premises.
------------------
(a) Tenant leases from Landlord and Landlord leases to Tenant the
following described property, hereinafter referred to as the "Premises":
Approximately 103,000 square feet of warehouse space located in Building E
(the "Building") with an address of 000 Xxxxxx Xxx Xxxxxxx, Xxxxx 0,
Xxxxxxxx, Xxxxxxxxxx 00000, which real property is more particularly
described on Exhibit A, attached hereto and incorporated herein by
---------
reference.
Exclude from the Premises are the following areas which are shown as shaded
on Exhibit A: (i) an aisle approximately twenty-five (25) feet wide by
---------
approximately three hundred (300) feet long on the west side of the
Premises; (ii) an area containing lockers, offices and restrooms, on the
mezzanine on the east side of the Building containing approximately twenty-
four thousand (24,000) square feet; and (iii) meat lockers located on the
east side of the Premises containing approximately twenty-seven hundred
(2,700) square feet (the "Locker Area").
(b) Delivery of Possession. Landlord shall deliver possession of the
----------------------
Premises to Tenant on or before November 1, 1992. In the event that Landlord is
unable to deliver possession of the Premises to Tenant because of strikes, acts
of God, or any other cause beyond Landlord's reasonable control, then Tenant
shall take possession of the Premises when Landlord notifies Tenant that the
Premises are ready for such possession, and the term of this Lease shall
commence on the first day of the month following the date of such occupancy and
continue for the remainder of the Lease Term, notwithstanding the Lease Term
Commencement Date stated in Paragraph 2 below. In no event shall Tenant be
-----------
obligated to pay monthly rent until Landlord has notified Tenant that the
Premises are ready for possession. Landlord shall have no liability for any
delay in delivery of possession of the Premises to Tenant and neither party
shall have the right to terminate this Lease except that
Landlord may cancel this Lease without liability if permission to construct, use
or furnish necessary utilities to the Premises is denied or revoked by any
governmental agency or public utility with authority thereover.
(c) Option to Expand Premises: Tenant at any time during the Term of
-------------------------
the Lease, may elect to utilize the Locker Area by providing Landlord with
thirty (30) days prior written notice of such election. In the event of such
election, Landlord and Tenant shall enter into an amendment to this Lease
reflecting the increase in the Premises and reflecting an increase of Five
Thousand Five Hundred Twenty Dollars ($5,520.00) per month in minimum rent.
Notwithstanding the foregoing, Tenant's option to expand the Premises shall
terminate and be of no further force or effect in the event that prior to
Tenant's delivery of notice to Landlord of its election to utilize such Locker
Area, Landlord delivers notice to Tenant of its intent to lease said Locker Area
to another party.
2. Term.
----
(a) This Warehouse Lease (the "Lease"), and Tenant's occupancy of the
Premises pursuant hereto shall be for an original term of three (3) years and
eight (8) months (the "Original Term") commencing on November 1, 1992 (the
"Lease Term Commencement Date") and expiring June 30, 1996. On the Lease Term
Commencement Date, this Lease, and each and every provision hereof shall be
effective, including the payment of monthly rent in accordance with Paragraph 3
-----------
hereinbelow. The "Lease Term" shall mean the original Term any Extended Term.
The parties shall execute a supplemental memorandum identifying the Lease Term
Commencement Date.
(b) Option to Extend the Term. Provided Tenant is not in default
-------------------------
hereunder, Tenant is hereby given the option to extend the Original Term, on all
the terms and provisions contained in this Lease, for one (1) two (2)-year
period (the "Extended Term"), by giving notice of exercise of such option
("Option Notice") to Landlord at least ninety (90) days but not more than one
(1) year before the date the Original Term would otherwise expire. The minimum
monthly rent payable by Tenant during the Extended Term shall be as set forth in
Paragraph 3 (b) hereinbelow.
---------------
(c) Option to Terminate. Notwithstanding anything to the contrary
-------------------
contained herein, Tenant may elect to terminate this Lease at any time after the
twenty-fourth (24th) month of the Term by delivering to Landlord one hundred
eighty (180) days prior written notice of such election specifying the date of
termination which date shall be no less than on hundred eighty (180) days after
receipt of such notice by Landlord (the "Termination Date"). In the event Tenant
elects to terminate this Lease by written notice after the thirtieth (30th)
month of the Term, Tenant shall deliver with such notice certified funds equal
to one (1) month's rent and shall thereafter fully perform the terms hereof
until the Termination Date. Except for obligations then accrued but unperformed
hereunder, this Lease shall terminate on the Termination Date, shall thereafter
be null, void and of no further force or effect and Landlord and Tenant shall be
released from any further performance hereof.
3. Rent. Tenant shall pay the following rents, without demand,
----
deduction or offset, by checks or drafts payable to Property Development
Associates and mailed to Property Development Associates, Attn: Accounting
#00000000, 00000 X.X. Xxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx, Xxxxxx 00000-0000, or
as otherwise may be designated in writing by Landlord:
(a) Minimum Rent. Tenant shall pay a minimum rent which shall be
------------
paid monthly in advance commencing on January 1, 1993 and thereafter on the
first day of each calendar month during the Lease Term, in the following
amounts:
MONTH MONTHLY
OF TERM RENT
------- -------
3 - 30 $23,690.00
32 - 36 $23,690.00
38 - 44 $23,690.00
(b) Free Rent. Notwithstanding anything to the contrary contained
---------
herein, so long as Tenant has performed each and every obligation of the tenant
hereunder, Tenant shall not be required to pay minimum rent for the first (1st),
second (2nd), thirty-first (31st) and thirty-seventh (37th) months of the Term
hereof.
(c) Minimum Rent During Extended Term. If Tenant has duly exercised
---------------------------------
its option to extend the term hereof for the Extended Term, the minimum rent for
the Extended Term shall be an amount established as follows:
(i) No later than one hundred eighty (180) days prior to the
expiration of the Original Term hereunder, Tenant shall give written notice to
Landlord setting forth a proposed monthly rent for the Extended Term. Said
proposed rent shall be equal to eighty-five percent (85%) of Tenant's
reasonable, best estimate of the then fair market rent for the Premises. The
parties shall have ninety (90) days after receipt of such notice by Landlord in
which to agree on the new minimum rent. If the parties reach such agreement
during that period, they shall immediately execute an amendment to this Lease
setting forth the new minimum rent.
(ii) If the parties are unable to agree on the new minimum rent
within said ninety (90)-day period, then within fifteen (15) days after the
expiration of said ninety (90)-day period, each party, at its sole cost, shall
retain a real estate appraiser with at least five (5) years full time commercial
appraisal experience in Contra Costa County, California to appraise and
establish the minimum rent for said Extended Term. Each party shall provide the
other party with written notice of the name and address of the appraiser
selected by such party. In the event either party fails to appoint an appraiser
within ten (10) days after the other party has given written notice of the name
of its appraiser, the single appraiser shall be appointed the sole appraiser and
shall set the new minimum rent. If the two (2) appraisers are appointed by the
parties as set forth herein, they shall meet promptly and attempt to set the new
minimum rent. If they are unable to agree within thirty (30) days after the
appointment of the second (2nd) appraiser, the appraisers shall attempt to
select a third (3rd) appraiser meeting the qualifications set forth herein
(which third appraiser has not previously acted in any capacity for either
Landlord or Tenant) within ten (10) days after the last day of said thirty (30)-
day period. Within thirty (30) days after the selection of the third (3rd)
appraiser, the majority of the appraisers shall establish the new minimum rent.
If the appraisers are unable to agree on a third (3rd) appraiser within said ten
(10)-day period, either Landlord or Tenant, by giving ten (10) days written
notice to the other, may apply to the American Arbitration Association for the
purpose of having the new minimum rent for said Extended Term determined. Tenant
and Landlord shall each bear one-half (1/2) of the cost of appointing the third
(3rd) appraiser and of paying the third
(3rd) appraiser's fee (or one-half [1/2] of the fees and other expenses charged
by the American Arbitration Association).
(iii) In deciding the minimum rent for the Extended Term, the
appraisers shall value the Premises based on the highest and best use of the
Premises allowable under the existing zoning. In no event shall the minimum rent
be less than the minimum rent on the last day of the Term then in effect. The
determination of the new minimum rent by the appraisers shall be calculated
based upon the appraisers' determination of eighty-five percent (85%) of the
fair market rental value of the Premises.
(iv) If the majority of the appraisers are unable to establish
the new minimum rent within said thirty (30)-day period, the three appraisals
shall be added together and the total divided by three (3) and the resulting
quotient shall be the new minimum rent for said Extended Term; provided,
however, that if the low appraisal and/or the high appraisal are/is more than
ten percent (10%) lower and/or higher than the middle appraisal, the low
appraisal and/or the high appraisal shall be disregarded. If only one (1)
appraisal is disregarded, the remaining two (2) appraisals shall be added
together and their total divided by two (2) and the resulting quotient shall be
the new minimum rent for said Extended Term. If both the low appraisal and the
high appraisal are disregarded, the middle appraisal shall be the new minimum
rent. After the new minimum rent has been established, the appraisers shall
immediately notify the parties of such amount.
(v) Regardless of whether the new minimum rent for said Extended
Term is established by one (1) or more appraisers (or by the American
Arbitration Association) as provided hereinabove, the determination made by such
appraisers (or the American Arbitration Association) shall be final, binding and
conclusive upon Landlord and Tenant.
(d) Proration. Minimum rent for any partial calendar month
---------
immediately following the Lease Term Commencement Date and/or prior to the
expiration (or sooner termination) of the Lease Term and immediately prior to
and following any change in minimum rent shall be prorated based on a thirty
(30)-day month.
4. Use.
---
(a) Permitted Use. Tenant may use the Premises for conducting the
-------------
following business and for no other purpose whatsoever without the prior written
consent of Landlord (which Landlord may give or deny in its sole and absolute
discretion): storage and distribution of Tenant's products. Tenant shall use the
Premises in such a way as not to annoy any other tenants of the Building or
create a nuisance or cause the cancellation of any insurance policy covering the
Premises. Tenant shall create no nuisance or allow any objectionable liquid,
odor, or noise to be emitted from the Premises and shall not overload the floors
or electrical circuits of the Premises. Landlord shall have the right to approve
the installation of any power driven machinery by Tenant and may select a
qualified electrician whose opinion will control regarding electrical circuits
and a qualified engineer or architect whose opinion will control regarding floor
loads. Maximum allowable ground floor loads shall be no more than 300 pounds per
square foot.
(b) Parking and General Use. Tenant, its employers and customers
-----------------------
shall have the exclusive right to use any private parking spaces immediately
adjacent to the Premises and as designated by Landlord at the commencement
hereof. Tenant shall control the use of such parking spaces so that there will
be no unreasonable interference with the normal traffic flow around,
to and from the Building and shall permit no parking on any landscaped or
unpaved surface in or about the Building. Tenant shall have the right of ingress
and egress to the Premises over the adjacent roadways and may use the area shown
as single-hatched on Exhibit B as a truck staging area (the "Staging Area").
---------
Under no circumstances shall trucks servicing the Premises be permitted to block
access to adjacent buildings. Additionally, Tenant shall not store any
materials, supplies or equipment outside the Building in any unapproved or
unscreened area. Tenant shall not erect any visual barrier for storage area
without having first obtained the prior written consent of Landlord, which
Landlord may grant or withhold in its sole discretion. Tenant shall keep all
trash in proper garbage receptacles and shall keep any such receptacle used by
Tenant covered at all times.
5. Condition of Premises.
---------------------
(a) As Is. Tenant hereby affirms that, other than as set forth in
-----
Paragraph 5(b) below, Tenant has inspected the Premises and agrees to accept the
--------------
same "AS IS" and in its present condition and without any representation or
warranty by or from Landlord as to the condition of the Premises, the
habitability of the Premises, the fitness of the Premises for Tenant's use or
the zoning of the Premises and Tenant hereby releases Landlord from any and all
liability resulting from any defect in or other condition of the Premises.
(b) Landlord's Work. Landlord shall use its reasonable best efforts
---------------
and due diligence to complete the work described in Exhibit C, attached hereto
---------
and incorporated herein by reference ("Landlord's Work") on or before the Lease
Term Commencement Date.
6. Maintenance and Repair of Premises.
----------------------------------
(a) By Landlord. Landlord shall repair and maintain the Building's
-----------
roof, gutters, downspouts, exterior walls, structure, foundation, paved areas
and curbs and existing heating, ventilating, air conditioning and refrigeration
units in good condition. Landlord shall have no obligation to make any repairs
or replacements hereunder until the expiration of twenty (20) days following
written notice from Tenant to Landlord of the need therefore. Tenant waives any
right now or hereafter granted by law to make any repairs under this paragraph
upon Landlord's failure to do so hereunder or otherwise.
(b) By Tenant. Tenant, at Tenant's sole cost and expense shall at
---------
all times keep all portions of the Premises that are not the responsibility of
Landlord under this Paragraph 5 in good condition and repair (including, if
-----------
necessary, the replacement thereof). Tenant's responsibility shall include but
not be limited to maintenance and repair of the internal electrical system,
plumbing system, overhead and personnel doors, and the replacement of all broken
or cracked glass with glass of the same quality. Tenant shall also be
responsible for the repair of any and all damage caused to the Premises and/or
the Building by any act or omission of Tenant or its employees, agents,
licensees or contractors. Tenants shall refrain from any discharge that will
damage the septic tank or sewers serving the Premises. Additionally, if the
Premises have a separate entrance, Tenant shall keep all outside areas within
ten (10) feet of the Premises and the Staging Area free and clear of debris and
obstruction of every kind.
(c) Ventilation. Landlord shall deliver the Premises to Tenant with
-----------
a ventilation system standard to a warehouse operation and based on
specifications provided Landlord by Marin Air Conditioning Company. Landlord
acknowledges that the maintenance of the ventilation system is material and
crucial to Tenant's use of the Premises.
7. Alterations. Tenant shall make no alterations, additions or
-----------
improvements to the Premises or change the color of the exterior thereof without
Landlord's prior written consent which Landlord may withhold or grant in
Landlord's sole and absolute discretion. Upon termination of this Lease, any
such alteration, addition or improvement (including without limitation, all
electrical, lighting, plumbing, heating and air conditioning equipment, doors,
windows, partitions, drapery, carpeting, shelving, counters, and physically
attached fixtures) shall at once become part of the Premises and belong to
Landlord unless the terms of the applicable consent provide otherwise, or
Landlord requests that part or all of such additions, alterations or
improvements be removed. In such event, Tenant shall, at its sole cost and
expense promptly remove such additions, alterations or improvements and repair
and restore the Premises to its original condition. In the event Tenant fails to
do so, Landlord may remove such additions, alterations or improvements and
repair and restore the Premises to its original condition and Tenant shall
reimburse Landlord for the cost thereof within ten (10) days after receipt of
demand therefor from Landlord.
8. Surrender of Premises. At the expiration or sooner termination of the
---------------------
Lease Term, Tenant shall deliver all keys to Landlord, have final utility
readings made on the date of the move-out, and surrender the Premises to
Landlord broom clean and free of debris, inside and outside, with all
mechanical, electrical and plumbing systems in good operating condition, all
signs removed and defacement corrected, and all repairs called for under this
Lease completed. The Premises shall be delivered to Landlord in the same
condition as at the commencement of the term, subject to only depreciation and
wear from ordinary use. In the event Tenant fails to remove its furnishings and
other personal property within ten (10) days of the expiration of the term or
early termination of this Lease, Tenant shall be deemed to have abandoned the
same and Landlord may dispose of any such furnishings and personal property
fixtures in any manner it deems fit without liability to Tenant or any other
party.
9. Signs. Tenant shall not erect or install in, upon or about the
-----
Premises, any exterior on interior signs or advertising media, or window or door
lettering or plaques, without Landlord's consent which may be withheld in
Landlord's sole discretion. Notwithstanding the foregoing, Tenant may erect one
(1) sign stating its name, business and products and truck door numbers so long
as Landlord has approved the size, color, design, wording and location thereof
and so long as Tenant has obtained all necessary governmental approvals
therefor. No signs shall be painted on the Building or exceed the height of the
Building. All signs installed by Tenant shall comply with all applicable laws,
ordinances, rules and regulations and Tenant shall remove such signs upon the
termination of this Lease with all sign locations restored to their condition as
of the commencement of this Lease.
10. Mechanics Lien. Tenant shall not permit any mechanics', materialmens'
--------------
or other liens to stand against the Premises for work or materials furnished in
connection with any maintenance, repairs or alterations undertaken on the
Premises.
11. Utilities. Landlord shall pay all charges for electricity, natural
---------
gas, water, garbage collection, janitorial service, sewer and all other
utilities of any kind whatsoever furnished to the Premises during the Lease
Term. Landlord shall have no liability for damages or otherwise for any failure
or interruption of any utility service being furnished to the Premises unless
caused by the sole, active negligence of Landlord or its agents or employees.
12. Property and Other Insurance: Releases and Subrogation Waivers.
--------------------------------------------------------------
(a) Landlord's Insurance.
--------------------
(i) Types of Coverage. During the Lease Term, Landlord
-----------------
shall maintain in full force and effect a policy or policies of "difference in
conditions" insurance covering the Building. All insurance proceeds payable
under Landlord's casualty insurance carried hereunder shall be payable solely to
Landlord and Tenant shall have no interest therein.
(ii) Reimbursement by Tenant. Tenant shall pay to
-----------------------
Landlord, as additional rent, an amount equal to Tenant's Proportionate Share of
any increase in premiums paid by Landlord for all insurance described in
Paragraph 12(a)(i) in excess of the premiums paid by Landlord for such insurance
------------------
during Landlord's fiscal year 1993. If Tenant's use of the Premises increases
the premium for any insurance carried by Landlord over that charged for normal
warehouse uses, then Tenant shall pay to Landlord, as additional rent, the full
amount of such increase in premium.
(b) Tenant's Insurance. During the Lease Term, at its sole cost and
------------------
expense, Tenant shall maintain in full force and effect the following types of
insurance:
(i) Liability and Workers' Compensation.
-----------------------------------
General Liability Insurance applying to the use and occupancy of the Premises
and the business operated by Tenant on the Premises. Such insurance shall
include Broad Form Contractual liability insurance coverage insuring all of
Tenant's indemnity obligations under this Lease; shall have a minimum combined
single limit of liability of at least Two Million Dollars ($2,000,000) and a
general aggregate limit of Three Million Dollars ($3,000,000); shall be written
to apply to all bodily injury, property damage, personal injury and other
covered loss, however occasioned, occurring during the policy term; shall be
endorsed to add Landlord as an additional insured; shall provide that such
coverage shall be primary and that any insurance maintained by Landlord shall be
excess insurance only; shall provide that an act or omission of one of the named
or additional insureds shall not reduce or avoid coverage to the other named or
additional insureds and shall be endorsed to provide Landlord with thirty (30)
days notice of cancellation or change in terms. Tenant shall also maintain
Worker's Compensation insurance in accordance with the law of the state in which
the Premises are located, and employer's liability insurance.
All insurance policies required to be carried by Tenant under this
Lease shall: (i) be written by companies rated A-/IX or better in the most
recent edition of "Best's Insurance Guide" and authorized to do business in the
state in which the Premises are located. Tenant shall deliver to Landlord on or
before the Lease Term commencement Date, and thereafter at least thirty (30)
days before the expiration dates of expiring policies, certified copies of its
insurance policies, or a certificate evidencing the same issued by the insurer
thereunder which shall name Landlord as an additional insured.
(c) Releases and Waivers of Subrogation. Notwithstanding any other
-----------------------------------
provision of this Lease, each party hereby releases and waives any and all right
to recover from or proceed against the other party, and its officers, directors,
employees, agents and representatives, for loss or damage to any property of the
releasing party or any person claiming through the releasing party arising from
any cause required to be insured against by the releasing party under this
Paragraph 12(c), but only so long as the foregoing release and waiver does not
---------------
adversely affect any insurance carried by such releasing party. The parties
shall cause their insurance policies to contain a waiver of subrogation
consistent with the foregoing.
13. Damage by Casualty.
------------------
(a) Restoration of Damage. If fire or other casualty causes damage
---------------------
to the Building in an amount exceeding thirty percent (30%) of its full
construction-replacement cost, or if a casualty causes any damage during the
last year of the Lease, then in either event, Landlord may elect to terminate
this Lease by giving written notice of such termination to Tenant within thirty
(30) days following the date of damage. Otherwise, the Lease shall remain in
full force and effect and Landlord shall proceed to restore the Building to a
condition comparable in function and value to that existing prior to the damage.
The minimum base rent shall be abated until repair or restoration of the
Premises is substantially complete to the extent the Premises are not reasonably
usable for Tenant's use. Tenant shall cooperate with Landlord during the period
of repair and vacate all or any part of the Premises to the extent necessary for
the performance of the required work.
(b) Waivers. Tenant hereby waives the provisions of any law
-------
providing that a lease or sublease shall terminate on the destruction or partial
destruction of the leased premises, or affording Tenant any right or benefit
which is not expressly set forth in this Paragraph 13, including California
------------
Civil Code Sections 1932(2) and 1933(4), if the Premises are located in
California.
14. Condemnation. If a condemning authority takes the entire Premises or
------------
a portion thereof sufficient to render the remainder unsuitable for Tenant's
use, then either Landlord or Tenant may elect to terminate this Lease by giving
written notice to the other within twenty (20) days after title to the real
property passes to the condemning authority. If the Lease is not so terminated,
Landlord shall repair and restore the Building as practicable (but shall not be
required to expend more than the amount of the award received by Landlord for
such purpose, and this Lease shall continue and rent shall be reduced for the
remainder of the term in an amount equal to the reduction in rental value of the
Premises caused by the taking.
(b) Award. Any and all awards payable by the condemning authority or
-----
other governmental agency in connection with a taking under the right of eminent
domain shall be the sole property of Landlord. Landlord and Tenant each hereby
waive the provisions of any law including, without limitation, California Code
of Civil Procedure Section 1265.130 (if the Premises are located in California),
allowing either party to petition a court to terminate this Lease, or otherwise
to terminate this Lease, in the event of a condemnation of the Building.
15. Tenant's Default.
----------------
(a) Events of Default. Tenant shall be in default in the event of
-----------------
any of the following: (i) If Tenant fails to make any payment of rent,
additional rent or any other sum or amount payable hereunder within twelve (12)
days after it is due; (ii) if Tenant fails to perform any other obligation to
be performed by Tenant hereunder and such failure shall continue for twenty (20)
days (or such other time as specifically set forth in this Lease) after written
notice by Landlord; (iii) if Tenant abandons and vacates the Premises; (iv) if
Tenant files any petition or institutes any proceedings under the Bankruptcy
Code, or if any such petition or proceeding of the same or similar kind or
character be filed against Tenant.
(b) Remedies. Upon the occurrence of any of the events of default
--------
described in Paragraph 15(a), then Landlord, at its option, may: (i) cure such
---------------
default on behalf of Tenant; (ii) cancel and terminate this Lease upon written
notice to Tenant, thereby terminating Tenant's right to possession; or (iii)
re-enter upon the Premises, either with or without process of law, and without
demand for possession thereof. If Landlord elects to cure a default of Tenant,
then Tenant shall reimburse to Landlord all expenses incurred by Landlord in
curing such default, together with a surcharge of fifteen percent (15%) of all
such amounts to cover Landlord's administrative costs and overhead, within ten
(10) days after receipt of a billing therefor from Landlord. Should Landlord
re-enter the Premises, it may either terminate this Lease or it may, without
terminating this Lease, relet the Premises.
(c) Damages Upon Termination.
------------------------
(i) Unpaid Rent. Whether or not Landlord retakes
-----------
possession or relets the Premises, Landlord may recover all damages caused by
Tenant's defaults, including, but not limited to unpaid rent and other charges
hereunder, attorney's fees and costs of reletting the Premises. If Landlord
terminates this Lease pursuant to Paragraph 13(b), then Landlord may exercise
---------------
all rights and remedies available to a landlord at law or in equity, including
the right to recover from Tenant: (i) the worth at the time of award of the
unpaid rent and other amounts payable by Tenant hereunder which had been earned
at the time of termination; (ii) the worth at the time of award of the amount by
which the unpaid rent and such other amounts which would have been earned after
termination until the time of the award exceeds the amount of loss of rent and
such other amounts that Tenant proves could have been reasonably avoided; (iii)
the worth at the time of award of the amount by which the unpaid rent and such
other amounts for the balance of the Term after the time of such award exceeds
the amount of loss of rent and such other amounts that Tenant proves could be
reasonably avoided; and (iv) any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which, in the ordinary course of things, would
be likely to result therefrom. The "worth at the time of award" of the amounts
referred to in clauses (i) and (ii) shall be computed with interest at the
highest rate allowed by law. The "worth at the time of award" of the amount
referred to in clause (iii) shall be computed by discounting such amount at the
discount rate of the Federal Reserve Bank of San Francisco, California, plus one
percent (1%). As used herein, "time of award" shall mean either the date upon
which Tenant pays to Landlord the amount recoverable by Landlord as hereinabove
set forth, or the date of entry of any determination, order or judgment, of any
court or other legally constituted body determining the amount recoverable,
whichever first occurs.
(d) Lease Provisions Determine Landlord's Right to Terminate. The
--------------------------------------------------------
rights of Landlord to terminate this Lease on account of Tenant's default shall
be governed by the provisions of this Paragraph 15 rather than the provisions of
------------
any applicable state or federal law.
16. Exculpation of Landlord; Tenant's Indemnification of Landlord.
-------------------------------------------------------------
(a) Release. Landlord shall not be liable to Tenant for any injury
-------
or damage to Tenant or to the agents, employees or property of Tenant, its
permitted assignees, sublessees, concessionaires or licensees, arising out of
the occupancy or use of the Premises except to the extent such injury or damage
is caused by the sole, active negligence of Landlord, or breach of its
obligations hereunder.
(b) Indemnification. Tenant shall indemnify, defend, protect and
---------------
hold Landlord harmless from and against any and all liability, damage, loss,
expense (including the reasonable attorney's fees of counsel chosen by
Landlord), causes of action, suits, claims or judgments resulting from injury
or death to person, or damage, deterioration or loss to property, occurring on
the Premises or on the adjacent sidewalks and streets if caused by the act or
omission of Tenant, or its employees, invitees or guests.
17. Notices. Any notice permitted or required to be given hereunder shall
-------
be in writing and shall be given by personal delivery, certified United States
mail, or overnight air courier, in each case postage or equivalent fees prepaid
and addressed to the address shown for each party at the beginning of this Lease
or such other address as may be designated by written notice. If any notice is
given by mail, it will be effective upon seventy-two (72) hours after deposit in
the U.S. Mail and, if given by personal delivery or by overnight air courier,
when delivered. Copies of any such notice shall be mailed by first class mail,
postage prepaid to Kaydon Xxxxxx, Xxxxx River Corporation, 000 Xxxxx Xxxxx
Xxxx., Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, and to Xxxxx River Paper
Company, Inc., Attention: General Counsel, 000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000.
18. Transfers by Tenant.
-------------------
(a) Prohibition of Transfer. Tenant shall not assign, mortgage,
-----------------------
pledge, hypothecate or encumber the Premises or Tenant's Leasehold estate, or
sublet any portion of the Premises or license the use of any portion of the
Premises, or otherwise transfer any interest in the Premises (whether voluntary,
involuntary, by operation of law or otherwise), without the prior written
consent of Landlord. Any attempted transfer without consent shall be null and
void and, at the option of Landlord, will cause termination of this Lease.
Notwithstanding the foregoing, in the event Landlord consents to an
assignment or subletting pursuant hereto, then, effective as of the effective
date of such assignment or subletting transaction, the amount of minimum rent
payable hereunder shall be increased monthly by the product obtained when the
monthly minimum rent for the Premises prior to such effective date is multiplied
by one hundred fifteen percent (115%).
(b) Exempt Transfers. Tenant shall have the right to assign its
----------------
interest under this Lease, or sublet the Premises or any portion thereof,
without the consent of Landlord, to any corporation: (i) with which it may merge
or consolidate; (ii) which acquired all or substantially all shares of stock or
assets of Tenant; (iii) which is a parent or subsidiary of Tenant; or (iv) which
is the successor corporation to Tenant in the event of a corporate
reorganization. In the event of any of the transfers described above, Tenant
shall give Landlord ninety (90) days prior written notice of such proposed
transfer, and shall provide Landlord with all documentation reasonably required
by Landlord in order to verify that the proposed transfer falls within this
Paragraph 18(b).
---------------
(c) Obligations After Transfer. If Tenant is permitted to make any
--------------------------
transfer of its interest in this Lease, Tenant and any guarantor(s) of this
Lease shall not be relieved of their respective obligations, but shall remain
primarily liable to Landlord for the performance of all such obligations.
19. Compliance With Laws.
--------------------
(a) Laws Generally. Tenant, at its sole cost and expense, shall
--------------
comply with all laws, ordinances, orders, rules, regulations and requirements of
all governmental and quasi-governmental authorities (specifically including the
Americans with Disabilities Act) having jurisdiction of the Premises, and shall
perform all work required to comply therewith. If any such work would involve
changes to the structure or the mechanical, electrical or plumbing systems of
the Building, then such work shall be performed by Landlord, and Tenant shall
reimburse to Landlord the cost thereof.
(b) Compliance With Environmental Laws. Tenant shall comply fully
----------------------------------
with all laws pertaining to the protection of human health and the environment
including, but not limited to, employee and community right-to-know laws and all
laws regarding the use, generation, storage, transportation, treatment, disposal
or other handling of hazardous substances. Tenant shall not use, generate,
manufacture, store, or otherwise handle any hazardous substances on or in the
Premises. The term "hazardous substances" is used in its very broadest sense,
and refers to materials which because of their quantity, concentration, or
physical, chemical, or infectious characteristics may cause or pose a present or
potential hazard to human health or the environment when improperly handled,
treated, stored, transported, disposed of, or otherwise managed. The term shall
include, but not be limited to, all hazardous substances, hazardous materials
and hazardous wastes listed by any applicable federal, state or local law,
ordinance, statute, rule or regulation. If at any time during or after the Lease
Term, any hazardous substances are found to exist in or on the Premises
(including the soils and underground water) or to have contaminated the soils,
air or underground water of the Premises, then: (i) Lessor shall defend, hold
harmless and indemnify Lessee against any loss or damage Lessee may suffer
arising directly or indirectly from the presence or release of any Hazardous
Substance which Lessee proves (A) has been deposited or discharged onto the
Premises prior to Lessee's tenancy, including but not limited to the areas of
concern set forth in Table 5-1 of that certain Environmental Report dated March
29, 1991, prepared by ERM-West, Inc. for Safeway Inc., or (B) was spilled,
discharged, emitted or deposited on the Premises by Lessor during Lessee's
tenancy; and (ii) Lessee shall defend, hold harmless and indemnify Lessor
against any loss or damage Lessor may suffer arising directly or indirectly from
the presence or release of any Hazardous Substance which Lessor proves was
spilled, discharged, emitted or deposited on the Premises by Lessee.
20. Remedies Cumulative. No remedy herein conferred upon or reserved to
-------------------
Landlord is intended to be exclusive of any other remedy herein or by law
provided, but each shall be cumulative
and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute.
21. Holding Over. If Tenant, with Landlord's consent, remains in
------------
possession of the Premises after the expiration or sooner termination of the
Lease Term, such possession by Tenant shall be deemed to be a month-to-month
tenancy terminable on thirty (30) days' prior written notice given at any time
by either party. All provisions of this Lease, except those specifying the Lease
Term, any options to extend, and for minimum monthly rent, which shall be one
hundred ten percent (110%) of the minimum monthly rent paid in month immediately
preceding the month-to-month tenancy, shall apply to the month-to-month tenancy.
22. Taxes and Operating Expenses.
----------------------------
(a) Taxes on Personal Property. Tenant shall pay, prior to
--------------------------
delinquency, any and all taxes and assessments that may be assessed or levied on
or against any of Tenant's personal property, fixtures or equipment placed on or
in the Premises. Landlord shall pay all real property taxes and assessments
levied against the Premises that are required to be paid by Landlord by law and
all operating expenses, as hereinbelow defined. Tenant shall reimburse Landlord
for such real property taxes and operating expenses as set forth below.
(b) Real Property Taxes; Tenant's Proportionate Share. Landlord
-------------------------------------------------
shall pay, prior to delinquency, any and all real property taxes and assessments
levied against the Premises that are required to be paid by Landlord by law.
Tenant shall pay to Landlord, as additional rent, Tenant's Proportionate Share
of any increase in such real property taxes or assessments which is imposed by
such authority after 1993 tax year. Tenant's Proportionate Share of real
property taxes shall be defined as that percentage of the total assessment
affecting the Premises which is the same as the percentage which the rentable
area of the Premises bears to the total rentable area of all buildings covered
by the tax statement. If in Landlord's reasonable judgement, this method of
allocation results in an inappropriate allocation to Tenant, Landlord may select
some other reasonable method of determining Tenant's Proportionate Share
thereof.
(d) Taxes Defined. Real property taxes and assessments charged to
-------------
Tenant hereunder shall include any increase imposed after 1993 in all general
real property taxes assessed against the Building or payable during the Lease
Term, installment payments on special assessments, in any rent tax, tax on
Landlord's interest under this Lease, or other tax in lieu of the foregoing,
whether or not such tax is now in effect. Tenant shall not, however, be
obligated to pay any tax based upon Landlord's net income.
23. Late Charge. Tenant hereby acknowledges that late payment by Tenant to
-----------
Landlord of rent and other sums due hereunder will cause Landlord to incur costs
not contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Accordingly, rent not paid within twelve (12) days of
when due shall bear interest from the date due until paid at the greatest rate
allowable by law. In addition to interest and other remedies available for
default, Landlord may, at its option, impose a late charge or ten percent (10%)
of each amount not paid within twelve (12) days of the date said amount is due.
The parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount, nor
prevent Landlord from exercising any of the other rights and remedies available
to Landlord.
24. Quiet Enjoyment. So long as Tenant is not in default hereunder, Tenant
---------------
shall have quiet and peaceful possession of the Premises. Landlord shall include
this covenant in any transfer or assignment of its interest in this Lease or in
the Premises.
25. Right of Entry. Landlord and its authorized representatives, shall
--------------
have the right to enter the Premises at all reasonable times upon reasonable
notice so long as such entry does not unreasonably interfere with Tenant's
activities therein.
26. Waivers. No delay or omission in the exercise of any right or remedy
-------
of Landlord with respect to any default by Tenant shall impair such right or
remedy or be construed as a waiver. The receipt and acceptance by Landlord of
delinquent rent or other payments due hereunder shall not constitute a waiver of
any other default. Landlord's consent or approval shall not be deemed to render
unnecessary the obtaining of Landlord's consent to or approval or any subsequent
act by Tenant, whether or not similar to the act so consented to or approved.
27. Transfer of Landlord's Interest. If Landlord conveys in a sale,
-------------------------------
exchange or otherwise all of its interest in the Premises, then Landlord, on
consummation of the conveyance, shall thereupon automatically be released from
any obligation or liability thereafter accruing under this Lease.
28. Time of Essence. Time is of the essence with respect to the
---------------
performance of every provision of this Lease in which time of performance is
specified.
29. Right to Estoppel Certificates. Either party shall, within twenty (20)
------------------------------
days after notice from the other party, execute and deliver to such other party
a written statement certifying the Lease is unmodified and in full force and
effect (or specifying any such modifications), the date to which rent has been
paid and such other matters as may be reasonably requested by such party.
Failure to deliver such certificate within the specified time shall be
conclusive upon the party of whom the certificate was requested that the Lease
is in full force and effect and has not been modified except as may be
represented by the party requesting such certificate.
30. Attorneys' Fees. If either party hereto brings an action at law or in
---------------
equity to enforce, interpret or seek redress for the breach of this Lease, then
the prevailing party in such action shall be entitled to recover all court
costs, witness fees and reasonable attorneys fees, at trial or on appeal in
addition to all other appropriate relief.
31. Severability. The unenforceability, invalidity or illegality of any
------------
provision of this Lease shall not render the other provisions unenforceable,
invalid or illegal.
32. Governing Law. This Lease shall be construed and interpreted in
-------------
accordance with the laws of the State of California.
33. Successors and Assigns. Subject to the provisions of Paragraph 18, all
---------------------- ------------
of the provisions, terms, covenants and conditions of this Lease shall be
binding upon and inure to the
benefit of the parties and their respective heirs, executors, administrators,
successors and assigns.
34. Integrated Agreement; Modification. This Lease contains all of the
----------------------------------
representations, understandings and agreements of the parties with respect to
the demise of the Premises and may not be amended or modified except by a
written agreement signed by both parties.
35. Subordination and Attornment.
----------------------------
(a) Subordination. This Lease, and all of Tenant's rights and
-------------
interest in the leasehold estate hereunder, shall be subject and subordinate to
any mortgages or deeds of trust that now encumber or may hereafter be placed
upon, the Premises, and to the rights of the mortgagees or beneficiaries
thereunder, any and all advances made or to be made thereunder, the interest
thereon, and all modifications, renewals, replacements and extensions thereof.
If any such mortgagee or beneficiary so elects in writing, then this Lease shall
be superior to the lien of the mortgage or deed of trust held by such mortgagee
or beneficiary, whether this Lease is dated or recorded before or after such
mortgage or trust deed. Upon request, Tenant shall promptly execute and deliver
to Landlord, or any such mortgagee or beneficiary, any documents or instruments
required by any of them to evidence subordination of this Lease hereunder or to
make this Lease prior to the lien of any mortgage or deed of trust as herein
specified. If Tenant fails or refuses to do so within ten (10) days after
written request therefor by Landlord or such mortgagee or beneficiary, such
failure or refusal shall constitute an event of default hereunder by Tenant, but
shall in no way affect the validity or enforceability of the subordination to or
by the mortgage or deed of trust held by such mortgagee or beneficiary.
(b) Attornment by Tenant. Upon enforcement of any rights or remedies
--------------------
under any mortgage or deed of trust to which this Lease is subordinated, Tenant
shall, at the election of the purchaser or transferee under such right or
remedy, attorn to and recognize such purchaser or transferee as Tenant's
landlord under this Lease. Tenant shall execute and deliver any document or
instrument required by such purchaser or transferee confirming the attornment
hereunder.
36. Relationship. Nothing contained in this Lease shall be deemed or
------------
construed by the parties or by any third person to create the relationship of
principal and agent, or of partnership, or of joint venture, or of any
association between Landlord and Tenant.
37. No Recourse. Notwithstanding anything to the contrary in this Lease,
-----------
Tenant shall look solely to Landlord's' assets for satisfaction of any liability
of Landlord in respect hereof and will not seek recourse against the partners of
Landlord or any of them, or their respective officers, directors, shareholders,
employees, agents, or any of them, or any of their personal assets, for such
satisfaction.
38. Exhibits. The following exhibits are attached hereto and incorporated
--------
herein by this reference:
Exhibit A - Legal Description
Exhibit B - Site Plan with Premises
cross-hatched thereon.
Exhibit C - Landlord's Work
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the
respective dates set opposite their signatures below, but this Lease, on behalf
of such parties, shall be deemed to have been dated as of the date first above
written.
LANDLORD:
SAFEWAY INC.,
a Delaware corporation
Date: 10/27 , 1992 By /s/ Xxxx X. Xxxxx
------------- ---------------------------------
Xxxx X. Xxxxx
---------------------------------
(type or printed name)
Its Vice President
------------------------------
Date: , 1992
------------- By
-------------------------------
-------------------------------
(type or printed name)
FORM APPROVED [INITIALS] Its
---------- ------------------------------
TENANT:
XXXXX RIVER PAPER COMPANY, INC.,
a Virginia corporation
Date: , 1992 By
------------ -------------------------------
-------------------------------
(type or printed name)
Its
------------------------------
Date: 10/19 , 1992 By [SIGNATURE APPEARS HERE]
------------ -------------------------------
-------------------------------
(type or printed name)
Its
------------------------------
PARCEL ONE:
A portion of the X.X. Xxxxx Addition to the City of Richmond, filed February 6,
1912, in Book 6 of Maps, page 138, in the office of the County Recorder of
Contra Costa County; a portion of the Xxxxxx Xxxxxx Addition to the City of
Richmond, filed May 3, 1909, in Book 2 of Maps, Page 32, in the office of the
County Recorder of Contra Costa County; a portion of Syndicate Business Blocks,
filed May 15, 1911, in Book 5 of Maps, page 107, in the office of the County
Recorder of Contra Costa County; a portion of Syndicate Tract, filed March 18,
1912, in Book 6 of Maps, page 143 in the office of the County Recorder of Contra
County; and a portion of Inner Harbor Business Blocks, filed November 18, 1912,
in Book 8 of Maps, page 196, in the office of the County Recorder of Contra
Costa County; more particularly described as follows:
Beginning at a point on the westerly extension of the south line of Block 11 of
said X.X. Xxxxx Addition, distant thereon 4.07 feet west from the southwest
corner of said Block; thence south 89 degrees 36' 37" east, along the south
lines of Blocks 11, 8 and 2 of said X.X. Xxxxx Addition and Blocks 11, 8, 5, and
2, of said Xxxxxx Xxxxxx Addition 1501.60 feet to a point on the east boundary
of said Xxxxxx Xxxxxx Addition, said point also being the southeast corner of
said Block 2 and a point on the north line of Xxxxxx Avenue as shown on the Map
of said Xxxxxx Xxxxxx Addition; thence north 88 degrees 38' 63" east, along the
south line of Blocks R, P and O of said Inner Harbor Business Blocks 599.60 feet
to the southeast corner of said Block O, said corner also being the intersection
of the north line of Xxxxxx Avenue and the west line of 00xx Xxxxxx [xxxxxxxx
Xxxxx Xxxx Xxxxxx], as shown on the map of said Inner Harbour Business Blocks;
thence north 0 degrees 11' 47" west, along the east lines of said Block O of
Inner Harbour Business Blocks and of Block O of Syndicate Tract and the
northerly extension of said east line 510.10 fee to the southeast corner of
Block C of said Syndicate Tract, also being the intersection of the north line
of Xxxxxx Avenue and said west line of 34th Street, as shown on the map of said
Syndicate Tract; thence north 0 degrees 12' 17" west, continuing along the
western line of 34th Street, being the eastern line of Block C of the Syndicate
Tract and the eastern line of Block C of the Syndicate Business Blocks, 624.18
feet to the northeastern corner of said Block C of the Syndicate Business
Blocks, said corner also being the intersection of the southern line of Xxxxxxx
Boulevard [formerly Potreso Avenue] and said western line of 34th Street, as
shown on said map of said Syndicate Business Blocks; thence north 87 degree 12'
17" west, along the north line of Block C, B and A of said Syndicate Business
Blocks, the north line of Blocks 1, 6, 7 and 12 of said Xxxxxx Xxxxxx Addition
and the north line of Blocks 1, 9, 10, 17, and the westerly extention of said
north line of said Block 17 of said X.X. Xxxxx addition, 2401.80 feet to a point
on the northerly extension of the east line of Block 18 of said X.X. Xxxxx
Addition; thence south 0 degres 16' 27" east, along said northerly extension
4.53 feet to the northeast corner of said Block 18; thence north 46 degrees 0'
27" west, 83.41 feet along the northeastern line of said Block 18, thence north
57 degrees 02' 19" west, 43.62 feet to the west line of said X.X. Xxxxx
Addition; thence south 0 degrees 03' 37" east, along said last mentioned western
line 1173.24 feet; thence south 74 degrees 56' 18" east, 244.90 feet to a point
on a tangent curve concave to the southwest and having a radius of 280 feet;
thence southeasterly along said tangent curve 170.92 feet to an intersection
with the north line of Xxxxxx Avenue [60 feet wide] as shown on said map of X.X.
Xxxxx Addition; thence south 89 degrees 36' 37" east, along said north line of
Xxxxxx Avenue 23.35 feet to the point of beginning.
EXCEPTING THEREFROM: Those portions thereof conveyed to the City of Richmond by
Deed recorded in Book 3102, page 200 and 3113, page 316 of Official Records,
described as follows:
PARCEL A:
Portion of Lots 24, 25, 26, 27, 28, 29, 30 and 31, in Block 18, as shown on the
map of X.X. Xxxxx Addition to the City of Richmond, filed February 6, 1912, in
Book 6 of Maps, page 138, in the office of the County Recorder of Contra Costa
County, described as follows:
Beginning at the southwest corner of said Block 18, being on the north line of
Xxxxxx Avenue, as designated on said Map; thence from the point of beginning,
north 0 degrees 03' 37" west, along the west line of said block 18, 194.45 feet;
thence south 11 degrees 55' 01" east, 154.03 feet; thence southeasterly, along
the arc of a curve to the left with a radius of 360 feet tangent to the last
course, an arc distance of 45.76 feet to the south line of said Block 18, being
the north line of Xxxxxx Avenue, as designated on said Map; thence north 89
degrees 37' 12" west, along said south line, 43.92 feet, to the point of
beginning.
PARCEL B:
Portion of Xxxx 0, 0, 0, 0, 00, 00, 00, 00, 00 and 15 in Block 16, portion of
Xxxx 00, 00, 00, 00 xxx 00 xx Xxxxx 16, portion of Xxxx 0, 0, 0, 0, 0, 0,
0, 0, and 9, in Block 18, portion of Xxxxxx Avenue and portion of Twenty-Sixth
Street, formarly Twenty-Fifth Street, as shown on the map of X.X. Xxxxx Addition
to the City of Richmond, filed February 6, 1912, in Book 6 of Maps, page 138, in
the office of the County Recorder of Contra Costa County, described as follows:
Page 1 of 3 EXHIBIT A
Beginning at the southwest corner of Block 18, as shown on said Map [8 W 138],
being on the north side of Xxxxxx Avenue, as shown on said map; thence from said
point of beginning south 89 degrees 37' 12" east, along the south line of said
Block 18, 43.92 feet; thence southeasterly, along the arc of a curve to the left
with a radius of 380 feet; the center of which bears north 70 degrees 47' 03"
east. through an angle of 12 degrees 56' 03", an arc distance of 81.27 feet to a
point of which the center of the said curve bears north 57" 51' east; thence
south 32" 09' east, tangent to said curve, 459.36 feet to the south line of the
parcel of land described in the deed from City of Richmond to Safeway Stores,
Incorporated, recorded June 18, 1956 in Book 2789 of Official Records, page 437;
thence along said south line, northwesterly, along the arc of a curve to the
left with a radius of 280 feet, through an angle of 19 degrees 38' 27", an arc
distance of 95.97 feet and north 74 degrees 56' 18" west, tangent to the last
mentioned curve, 41.25 feet; thence north 32" 09' west, 348.96 feet; thence
northwesterly along the arc of a curve to the right with a radius of 440 feet,
tangent to the last mentioned course, an arc distance of 21.99 feet to the west
line of said Block 19; thence 0 degrees 03' 37" west along said west line, 97.04
feet to the point of beginning.
EXCEPTING THEREFROM: That portion thereof in the Deed from Safeway, Inc. to the
State of California by Deed dated May 27, 1992 and recorded ____________________
_________________________.
53' 35" west, 87.90 feet to the northerly line of said Lot 14; thence along said
northerly lot line, north 88 degrees 39' 56" east, 31.06 feet to the point of
commencement.
ALSO EXCEPTING THEREFROM: That portion thereof in the Deed from Safeway, Inc.
to the State of California by Deed dated May 27, 1992 and recorded _____________
___________________________.
PARCEL THREE:
Lots 4 through 19, inclusive, in Block 3, as shown on the map of Harbor Business
Blocks, filed March 10, 1913 in Book 9 of Maps, page 213, Contra Costa County
Records.
EXCEPTING THEREFROM:
1) That portion of said Lots 15, 16, 7, 18 and 19, conveyed to the City of
Richmond, a municipal corporation, "for the purposes of a public street", by
deed recorded February 3, 1958, in Book 3112, page 584, Official Records, Contra
Costa County.
2) That portion thereof in the Deed from Safeway, Inc. to the State of
California by Deed dated May 27, 1992 and recorded ____________________________.
PARCEL FOUR:
Commencing at a point on the westerly line of said State parcel [13003 OR 380]
distant thereon N 0 degrees 51' 27" E, 235.05 feet from the southwesterly corner
of said State parcel; thence N 89 degrees 08" 33 W, 50.00 feet to the
westerly line of said Xxxxx 00xx Xxxxxx; thence along last said line N 0 degrees
51' 27" E, 273.97 feet to the northerly line of said Xxxxxx Avenue; thence along
last said line N 89 degrees 46' 16" E, 595.89 feet to the general westerly
right of way line of State Highway 04-CC-580; thence along last said line from a
tangent that bears S 28 degrees 43' 24" E, along a curve to the left with a
radius of 256.00 feet, through an angle of 45 degrees 36' 16", an arc length of
211.72 feet, S 74 degrees 18' 40" E, 84.56 feet; S 5 degrees 16' 12" W, 91.69
feet, S 37 degrees 23' 14" W, 68.03 feet, along a tangent curve to the left with
a radius of 280.00 feet, through an angle of 27 degrees 12' 23", an arc length
of 132.90 feet, S 10 degrees 10' 51" W, 12.46 feet, from a tangent that bears S
60 degrees 44' 59" W, along a curve to the right with a radius of 545.14 feet,
through an angle of 29 degrees 00' 17", an arc length of 275.95 feet and S 89
degrees 45' 18" W, 45.50 feet; thence S 69 degrees 45' 16" W, 12.42 feet; thence
N 0 degrees 14' 44" W, 223.34 feet; thence S 89 degrees 45' 18" W, 364.87 feet
to the point of commencement.
PARCEL FIVE:
Commencing at the northeasterly xxxxxx xx xxxx Xxxxx Xxxxxx 00000; thence along
the easterly line of said State Parcel 43862, S 1 degrees 01' 25' W, 205.54 feet
to the easterly line of said State Parcel 50010; thence along last said line S
10 degrees 50' 50" E, 154.02 feet and along a tangent curve to the left with a
radius of 359.98 feet, through an angle of 7 degrees 17' 21", an arc length of
45.80 feet to the easterly line of said vacated area on Xxxxxx Avenue; thence
along last said line from a tangent that bears S 18 degrees 08' 11" E, along a
curve to the left with a radius of 359.98 feet, through an angle of 11 degrees
4' 59, an arc length of 69.63 feet to the xxxxxxxxxxxxx xxxx xx xxxx Xxxxx
Xxxxxx 00000; thence along last said line from a tangent that bears S 29 degrees
13' 10" E, along a curve to the left with a radius of 359.98 feet, through an
angle of 1 degrees 5' 03" an arc
Page 2 of 3
length of 11.63 feet, S 31 degrees 04' 13" E, 459.34 feet and from a tangent
that bears S 54 degrees 13' 00" E, along a curve to the right with a radius of
279.98 feet, through an angle of 15 degrees 18' 47", an arc length of 74.83 feet
to the southerly line of said State Parcel 50011; thence along last said line N
88 degrees 28' 22" W, 118.50 feet to the general easterly line of said State
Parcel 47736; thence along last said line S 31 degrees 04' 13" E, 25.77 feet to
the southerly line of said State Parcel 47736; thence along last said line N 88
degrees 28' 22" W, 54.40 feet; thence from a tangent that bears N 25 degrees 59'
21" W, along a curve to the left with a radius of 795.00 feet, through an angle
of 12 degrees 05' 24", an arc length of 167.75 feet to the southwesterly line of
that parcel of land described as Parcel 1 in the deed to United Steel and
Carnegie Pension Fund, recorded October 5, 1859 in Book 3467, page 177, Official
Records of Contra Costa County; thence along last said line S 73 degrees 51' 31"
E, 71.61 feet to the southwesterly line of said State Parcel 60011; thence along
last said line N 31 degrees 04' 13" W, 348.93 feet and along a tangent curve to
the right with a radius of 439.97 feet through an angle of 2 degrees 52' 03" an
arc length of 22.02 feet to the general easterly line of said State Parcel
47738; thence along last said line S 1 degrees 01' 25" W, 189.73 feet; thence N
48 degrees 22' 06" W, 316.69 feet to the westerly line of said vacated portion
on Xxxxxx Avenue; thence along last said line N 38 degrees 00' 11" W, 81.38 feet
to the general southerly right of way line of State Highway 04-CC-5?0; thence
along last said line N 38 degrees 00' 11" W, 36.91 with a radius of 200.00 feet,
through an angle of 21 degrees 48' 18", an arc length of 75.11 feet, N 17
degrees 58' 17" W, 33.00 feet, from a tangent that bears N 35 degrees 00' 54" W,
along a curve to the right with a radius of 942.50 feet, through an angle of 10
degrees 23' 19", an arc length of 170.55 feet, from a tangent that bears N 18
degrees 15' 17" W, along a curve to the right with a radius of 850.00 feet,
through an angle of 15 degrees 25' 00", an arc length of 174.90 feet to a point
of compound curvature, along a tangent curve to the right with a radius of
200.00 feet, through an angle of 21 degrees 48' 18", an arc length of 78.11
feet, N 53 degrees 21' 09" E, 138.54 feet and N 87 degrees 29' 02" E, 244.65
feet to the easterly line of said Xxxxx 00xx Xxxxxx; thence along last said line
S 2 degrees 02' 16" W, 47.63 feet to the easterly line of said State Parcel
50010; thence along last said line S 24 degrees 22' 45" E, 50.43 feet and along
a tangent curve to the right with a radius of 439.97 feet, through an angle of 8
degrees 28' 17", an arc length of 65.05 feet to the northerly line of said State
Parcel 43852; thence along last said line S 88 degrees 28' 22" E, 46.04 feet to
the point of commencement.
[MAP APPEARS HERE]
NOTE: NOTHING SET FORTH OR SHOWN ON THIS EXHIBIT CREATES ANY RIGHT OR
---- OBLIGATION AS BETWEEN (SUB)LESSOR AND (SUB)LESSEE UNLESS SUCH RIGHT OR
OBLIGATION IS EXPRESSLY REFERRED TO IN THE LEASE OR SUBLEASE TO WHICH
THIS EXHIBIT IS ATTACHED.
EXHIBIT B
EXHIBIT C
Landlord's Work
1. Remove hanging partitions or wind screens near the front loading dock.
2. Cut off all of the rack bolts and grind down level with the floor.
3. Remove chain link fencing inside the Premises.
4. Repair all of the vent and pipe openings in the roof.
5. Seal and secure the rear dock door.
6. Clean and seal the floors of the restrooms, locker area, offices and
warehouse.
7. Repair the outside facade overhang on the north side of the Premises.
8. Install three (3) new deck doors with a minimum height of 105 inches.
9. Remove asphalt tile from floor of offices.
10. Install four 2 1/2 horsepower exhaust fans strategically located on the
south wall of the Premises.
EXHIBIT C
