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EXHIBIT 10.6
LEASE AND AGREEMENT
1. PARTIES. THIS LEASE AND AGREEMENT is entered into this 1st day of August,
1985, by and between XXXXXX X. XXXXXXXX, XXXXXXX X. XXXXXXX and XXXXX XXXXXXX,
Trustees under that certain Declaration of Trust dated December 30, 1972
(herein called "Lessor") and LA VICTORIA FOODS, INC., a California corporation,
(herein called "Lessee").
2. PREMISES. WHEREAS, the Lessee is in need of additional warehouse and
office space for its operations in the City of Industry.
NOW THEREFORE, it is mutually agreed as follows:
Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor
the premises which comprises a total square foot area of 170,000 square feet,
described in Exhibit "A" the real property located in Los Angeles County,
California, described in Exhibit "B" attached hereto and made a part hereof.
3. TERM.
3.1. TERM. The term of this Lease shall be for twenty-five (25) years,
commencing on the date of occupancy, and ending twenty-five (25) years there-
after.
3.2. DELAY IN COMMENCEMENT. Notwithstanding said commencement date, if for
any reason Lessor cannot deliver possession of the Premises to Lessee on said
date Lessor shall not be subject to any liability therefor, nor shall such
failure affect the validity of this Lease or the obligations of Lessee
hereunder or extend the term hereof, but in such case Lessee shall not be
obligated to pay rent until possession of the Premises is tendered to Lessee;
provided, however, that if Lessor shall not have delivered possession of the
Premises within sixty (60) days from said commencement date, Lessee may, at
Lessee's option, by notice in writing to Lessor within ten (10) days
thereafter, cancel this Lease, in which event the parties shall be discharged
from all obligations hereunder. If Lessee occupies the Premises prior to said
commencement date, such occupancy shall be subject to all provisions hereof,
such occupancy shall not advance the termination date, and Lessee shall pay
rent for such period at the initial monthly rates set forth below.
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4. RENT. NET LEASE.
4.1. RENT. Lessee shall pay to Lessor as rent for premises Six Hundred
Twelve Thousand Dollars ($612,000.00) per annum, payable in equal monthly
installments of $51,000.00, in advance on the first day of each month of the
term hereof. Lessee shall pay Lessor upon the execution of this Lease hereof
$102,000.00, which represents the first and last month's rental. Rent for any
period during the term hereof which is for less than one month shall be pro
rata portion of the monthly installment. Rent shall be payable in lawful money
of the United States to Lessor at the address stated herein or to such other
persons or at such other places as Lessor may designate in writing.
4.2. ADDITIONAL RENT. This Lease is what is commonly called a "net lease",
it being understood that Lessor shall receive the rent set forth in
Paragraph 4.1 free and clear of any and all other impositions, taxes, liens,
charges or expenses of any nature whatsoever in connection with the ownership
and operation of the Premises. In addition to the rent reserved by Paragraph
4.1, Lessee shall pay to the parties respectively entitled thereto all
impositions, insurance premiums, operating charges, maintenance charges,
construction costs, and any other charges, costs and expenses which arise or
may be contemplated under any provisions of this Lease during the term hereof.
All of such charges, costs and expenses shall constitute additional rent, and
upon the failure of Lessee to pay any of such costs, charges or expenses,
Lessor shall have the same rights and remedies as otherwise provided in this
Lease for the failure of Lessee to pay rent. It is the intention of the parties
hereto that this Lease shall not be terminable for any reason by the Lessee,
and that Lessee shall in no event be entitled to any abatement of or reduction
in rent payable hereunder, except as herein expressly provided. Any present or
future law to the contrary shall not alter this agreement of the parties.
4.3. ADJUSTMENT OF RENT. The monthly rental of this Lease shall be subject
to adjustment based on the Consumers Price Index (U.S. City Average All Items)
determined by the United States Department of Labor Bureau of Labor Statistics,
Washington, D. C., as follows:
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The figure which shall be paid Consumers Price Index (U.S. City Average
All Items) for the month during which the term of this lease shall commence,
shall be used as a basis, and the said rental shall be adjusted if there is an
increase beginning on the first day of the sixty-first month of this lease by
the same ratio as such Consumers Price Index (sixty-first month of this lease)
is to the above same basis. Said adjustment shall be in effect far the ensuing
sixty-month period and shall be adjusted on the same formula on each
sixty-month period for the balance of the lease. Any adjustments may be either
up or down after the first such adjustment, but in no event shall the rental at
any time be less than is otherwise provided herein.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution
hereof $51,000.00 as security for Lessee's faithful performance of Lessee's
obligations hereunder. If Lessee fails to pay rent or other charges due
hereunder, or otherwise defaults with respect to any provision of this Lease,
Lessor may use, apply or retain all or any portion of said deposit for the
payment of any rent or other charge in default or for the payment of any other
sum to which Lessor may become obligated by reason of Lessee's default, or to
compensate Lessor for any loss or damage which Lessor may suffer thereby. If
Lessor so uses or applies all or any portion of said deposit, Lessee shall
within ten (10) days after written demand therefor deposit cash with Lessor in
an amount sufficient to restore said deposit to the full amount hereinabove
stated and Lessee's failure to do so shall be a material breach of this Lease.
Lessor shall not be required to keep said deposit separate from its general
accounts. If Lessee performs all of Lessee's obligations hereunder, said
deposit, or so much thereof as has not theretofore been applied by Lessor,
shall be returned without payment of interest or other increment for its use,
to Lessee (or, at Lessor's option, to the last assignee, if any, of Lessee's
interest hereunder) at the expiration of the term hereof, and after Lessee has
vacated the Premises.
6. USE
6.1. USE. The Premises shall be used and occupied only for general
offices, and warehousing of products of the Lessee, now sold by it as well as
the products to be processed, stored and sold by it in the future, and all
other purposes and uses relating to the business of the Lessee, all of which
uses are lawful, and the Lessor relies on such representation.
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6.2. COMPLIANCE WITH LAW. Lessee shall at Lessee's expense, comply
promptly with all applicable statutes, ordinances, rules, regulations, orders
and requirements in effect during the term or any part of the term hereof
regulating the use by Lessee of the Premises. Lessee shall not use or permit
the use of the Premises in any manner that will tend to create waste or a
nuisance or, if there shall be more than one tenant of the building containing
the Premises, which shall tend to disturb such other tenants.
6.3. CONDITION OF PREMISES. Lessee hereby accepts the Premises in their
condition existing as of the date of the execution hereof, subject to all
applicable zoning, municipal, county and state laws, ordinances and regulations
governing and regulating the use of the Premises, and accepts this Lease
subject thereto and to all matters disclosed thereby and by any exhibits
attached hereto. Lessee acknowledges that neither Lessor nor Lessor's agent has
made any representation or warranty as to the suitability of the Premises for
the conduct of Lessee's business.
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
7.1. LESSEE'S OBLIGATIONS. Lessee shall during the term of this Lease keep
in good order, condition and repair, the Premises and every part thereof,
structural or non-structural, and all adjacent sidewalks, landscaping,
driveways, parking lots, fences and signs located in the areas which are
adjacent to and included with the Premises, and Lessor shall incur no expense
nor have any obligation of any kind whatsoever in connection with maintenance
of the Premises, and Lessee expressly waives the benefits of any statute now or
hereafter in effect which would otherwise afford Lessee the right to make
repairs at Lessor's expense or to terminate this Lease because of Lessor's
failure to keep the Premises in good order, condition and repair.
7.2. SURRENDER. On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the Premises to Lessor in the same
condition as when received, broom clean, ordinary wear and tear excepted. Lessee
shall repair any damage to the Premises occasioned by the removal of Lessee's
trade fixtures, furnishings and equipment pursuant to Paragraph 7.4 (c), which
repair shall include the patching and filling of holes and repair or structural
damage.
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7.3. LESSOR'S RIGHTS. If Lessee fails to perform Lessee's obligations
under this Paragraph 7, Lessor may at its option (but shall not be required to)
enter upon the Premises, after ten (10) days' prior written notice to Lessee,
and put the same in good order, condition and repair, and the cost thereof
together with Interest thereon at the rate of 10% per annum shall become due
and payable as additional rental to Lessor together with Lessee's next rental
installment.
7.4. ALTERATIONS AND ADDITIONS.
(a) Lessee shall not, without Lessor's prior written consent, make any
alterations, improvements, additions, or utility installations in, on or about
the Premises, except for non-structural alterations not exceeding $1,000 in
cost. As used in this Paragraph 7.4, the term "utility installations" shall
include bus ducting, power panels, fluorescent fixtures, space heaters,
conduits and wiring. As a condition to giving such consent, Lessor may require
that Lessee agree to remove any such alterations, improvements, additions or
utility installations at the expiration of the term, and to restore the
Premises to their prior condition. As a further condition to giving such
consent, Lessor may require Lessee to provide Lessor, at Lessee's sole cost and
expense, a lien and completion bond in an amount equal to one and one-half
times the estimated cost of such improvements, to insure Lessor against any
liability for mechanics' and materialmen's liens and to insure completion of
the work.
(b) Lessee shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or for use in
the Premises, which claims are or may be secured by any mechanics' or
materialmen's lien against the Premises or any interest therein. Lessee shall
give Lessor not less than ten (10) days' notice prior to the commencement of
any work in the Premises, and Lessor shall have the right to post notices of
non-responsibility in or on the Premises as provided by law.
(c) Unless Lessor requires their removal, as set forth in Paragraph 7.4
(a), all alterations, improvements, additions and utility installations
(whether or not such utility installations constitute trade fixtures of
Lessee), which may be made on the Premises, shall become the property of Lessor
and remain upon and be surrendered with the Premises at the expiration of the
term. Notwithstanding the provisions of this Paragraph 7.4 (c), Lessee's
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machinery and equipment, other than that which is affixed to the premises so
that it cannot be removed without material damage to the Premises, shall remain
the property of Lessee and may be removed by Lessee subject to the provisions
of Paragraph 7.2.
8. INSURANCE; INDEMNITY.
8.1. INSURING PARTY. As used in this Paragraph 8, the term "insuring
party shall mean the party who has the obligation to obtain the insurance
required hereunder. The insuring party in this case shall be designated in
Paragraph 15.20. Whether the insuring party is the Lessor or the Lessee, Lessee
shall, as additional rent for the Premises, pay the cost of all insurance
required hereunder. If Lessor is the insuring party Lessee shall, within ten
(10) days following demand by Lessor, reimburse Lessor for the cost of the
insurance so obtained.
8.2. LIABILITY INSURANCE. The insuring party shall obtain and keep in
force during the term of this Lease a policy of comprehensive public liability
insurance insuring Lessor and Lessee against any liability arising out
of the ownership, use, occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be in an amount of not less than
$300,000 for injury to or death of one person in any one accident or occurrence
and in an amount of not less than $600,000 for injury to or death of more than
one person in any one accident or occurrence. Such insurance shall further
insure Lessor and Lessee against liability for property damage of at least
$50,000. The limits of said insurance shall not, however, limit the liability
of Lessee hereunder. In the event that the Premises constitute a part of a
larger property said insurance shall have a Lessor's Protective Liability
endorsement attached thereto. If the insuring party shall fail to procure and
maintain said insurance the other party may but shall not be required to,
procure and maintain the same, but at the expense of Lessee.
8.3. PROPERTY INSURANCE. The insuring party shall obtain and keep in force
during the term of this. Lease a policy or policies of insurance covering
loss or damage to the Premises, in the amount of the full replacement value
thereof, providing protection against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief,
special extended
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perils (all risk) and sprinkler leakage. Said insurance shall provide for
payment for loss thereunder to Lessor or to the holder of a first mortgage or
deed of trust on the Premises. If the insuring party shall fail to procure and
maintain said insurance the other party may, but shall not be required to,
procure and maintain the same, but at the expense of Lessee.
8.4. INSURANCE POLICIES. Insurance required hereunder shall be in
companies rated AAA or better in "Best's Insurance Guide". The insuring party
shall deliver to the other party copies of policies of such insurance or
certificates evidencing the existence and amounts of such insurance with loss
payable clauses satisfactory to Lessor. No such policy shall be cancellable or
subject to reduction of coverage or other modification except after 10 days
prior written notice to Lessor. If Lessee is the insuring party, Lessee shall,
within 10 days prior to the expiration of such policies, furnish Lessor with
renewals or "binders" thereof, or Lessor may order such insurance and charge
the cost thereof to Lessee, which amount shall be payable by Lessee upon
demand. Lessee shall not do or permit to be done anything which shall
invalidate the insurance policies referred to in Paragraph 8.3. If Lessee does
or permits to be dome anything which shall increase the cost of the insurance
policies referred to in Paragraph 8.3, then Lessee shall forthwith upon
Lessor's demand reimburse Lessor for any additional premiums attributable to
any act or omission or operation of Lessee causing such increase in the cost of
insurance. If Lessor is the insuring party, and if the insurance policies
maintained hereunder cover other improvements in addition to the Premises,
Lessor shall deliver to Lessee a written statement setting forth the amount of
any such insurance cost increase and showing in reasonable detail the manner in
which it has been computed.
8.5. WAIVER OF SUBROGATION. Lessee and Lessor each hereby waive any and
all rights of recovery against the other, or against the officers, employees,
agents and representatives of the other, for loss of or damage to such waiving
party or its property or the property of others under its control to the extent
that such loss or damage is insured against under any insurance policy in force
at the time of such loss or damage. The insuring party shall, upon obtaining
the policies of insurance required hereunder, give notice to the insurance
carrier or carriers that the foregoing mutual waiver of subrogation is
contained in this Lease.
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8.6. INDEMNITY. Lessee shall indemnify and hold harmless Lessor from and
against any and all claims arising from Lessee's use of the Premises, or from
the conduct of Lessee's business or from any activity, work or things done,
permitted or suffered by Lessee in or about the Premises or elsewhere and shall
further indemnify and hold harmless Lessor from and against any and all claims
arising from any breach or default in the performance of any obligation on
Lessee's part to be performed under the terms of this Lease, or arising from
any negligence of the Lessee, or any of Lessee's agents, contractors, or
employees, and from and against all costs, attorney's fees, expenses and
liabilities incurred in the defense of any such claim or any action or
proceeding brought thereon; and in case any action or proceeding be brought
against Lessor by reason of any such claim, Lessee upon notice from Lessor
shall defend the same at Lessee's expense by counsel satisfactory to Lessor.
Lessee, as a material part of the consideration to Lessor, hereby assumes all
risk of damage to property or injury to persons, in, upon or about the Premises
arising from any cause and Lessee hereby waives all claims in respect thereof
against Lessor.
8.7. EXEMPTION OF LESSOR FROM LIABILITY. Lessee hereby agrees that Lessor
shall not be liable for injury to Lessee's business or any loss of income
therefrom or for damage to the goods, wares, merchandise or other property of
Lessee, Lessee's employees, invitees, customers, or any other person in or
about the Premises, nor shall Lessor be liable for injury to the person of
Lessee, Lessee's employees, agents or contractors, whether such damage of
injury is caused by or results from fire, steam, electricity, gas, water or
rain, or from the breakage leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures,
or from any other cause, whether said damage or injury results from conditions
arising upon the Premises or upon other portions of the building of which the
Premises are a part, or from other sources or places, and regardless of whether
the cause of such damage or injury or the means of repairing the same is
inaccessible to Lessee. Lessor shall not be liable for any damages arising from
any act or neglect of any other tenant, if any, of the building in which the
Premises are located.
9. DAMAGE OR DESTRUCTION; OBLIGATION TO REBUILD. In the event the
improvements on the Premises are damaged or destroyed, partially or totally,
from any cause
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whatsoever, whether or not such damage or destruction is covered by any
insurance required to be maintained under Paragraph 8, then Lessee shall
repair, restore, and rebuild the Premises to the condition existing immediately
prior to such damage or destruction and this Lease shall continue in full force
and effect. Such repair, restoration and rebuilding (all of which are herein
called the "repair") shall be commenced within a reasonable time after such
damage or destruction and shall be diligently prosecuted to completion. There
shall be no abatement of rent or of any other obligation of Lessee hereunder by
reason of such damage or destruction. The proceeds of any insurance maintained
under Paragraph 8.3 shall be made available to Lessee for payment of the cost
and expense of the repair; provided, however, that such proceeds may be made
available to Lessee subject to reasonable conditions including, but not limited
to, architect's certification of costs and retention of a percentage of such
proceeds pending final notice of completion. In the event that such proceeds
are not made available to Lessee within ninety (90) days after such damage or
destruction, Lessee shall have the option for 30 days, commencing on the
expiration of such 90-day period, of cancelling this Lease. If Lessee shall
exercise such option, Lessee shall have no further obligation hereunder and
shall have no further claim against Lessor; provided, however, that Lessor
shall return to Lessee so much of Lessee's security deposit as has not
theretofore been applied by Lessor. Lessee shall exercise such option by
written notice to Lessor within said 30-day period. Lessor may require that
Lessee provide, at Lessee's sole cost and expense, a lien and completion bond
to insure against mechanics' or materialman's liens arising out of the repair,
and to insure completion of the repair. In the event that the insurance
proceeds are insufficient to cover the cost of the repair, then any amount in
excess thereof required to complete the repair shall be paid by Lessee.
10. REAL PROPERTY TAXES.
10.1. PAYMENT OF TAXES. Lessee shall pay all real property taxes
applicable to the Premises during the term of this Lease. All such payments
shall be made at least ten (10) days prior to the delinquency date of such
payment. Lessee shall promptly furnish Lessor with satisfactory evidence that
such taxes have been paid. If any such taxes paid by Lessee shall cover any
period of time
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prior to or after the expiration of the term hereof, Lessee's share of such
taxes shall be equitably prorated to cover only the period of time within the
tax fiscal year during which this Lease shall be in effect, and Lessor shall
reimburse Lessee to the extent required. If Lessee shall fail to pay any such
taxes, Lessor shall have the right to pay the same, in which case Lessee shall
repay such amount to Lessor with Lessee's next rent installment together with
interest at the rate of 10% per annum.
10.2. DEFINITION OF "REAL PROPERTY" TAX. As used herein, the term "real
property tax" shall include any form of assessment, license fee, commercial
rental tax, levy, penalty, or tax (other than inheritance or estate taxes),
imposed by any authority having the direct or indirect power to tax, including
any city, county, state or federal government, or any school, agricultural,
lighting, drainage or other improvement district thereof, as against any legal
or equitable interest of Lessor in the Premises or in the real property of
which the Premises are a part, as against Lessor's right to rent to other
income therefrom, or as against Lessor's business of leasing the Premises.
10.3. JOINT ASSESSMENT. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the real property taxes
for all of the land and improvements included within the tax parcel assessed,
such proportion to be determined by Lessor from the respective valuations
assigned in the assessor's reasonable determination thereof, in good faith,
shall be conclusive.
10.4. PERSONAL PROPERTY TAKES. lessee shall pay prior to delinquency all
taxes assessed against and levied upon trade fixtures, furnishings, equipment,
and all other personal property of Lessee contained in the Premises or
elsewhere. When possible, Lessee shall cause said trade fixtures, furnishings,
equipment and all other personal property to be assessed and billed separately
from the real property of Lessor.
11. UTILITIES. Lessee shall pay for all water, gas, heat, light, power,
telephone and other utilities and services supplied to the Premises,
together with any taxes thereon. If any such services are not separately
metered to Lessee, Lessee shall pay a reasonable proportion to be determined by
Lessor of all charges jointly metered with other premises.
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12. ASSIGNMENT AND SUBLETTING
12.1. LESSOR'S CONSENT REQUIRED. Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Lessee's interest in this lease or in the Premises,
without Lessor's prior written consent, which Lessor shall not unreasonably
withhold. Any attempted assignment, transfer, mortgage, encumbrance or
subletting without such consent shall be void, and shall constitute a breach of
this Lease.
12.2. NO RELEASE OF LESSEE. Regardless of Lessor's consent, no subletting
or assignment shall release Lessee of Lessee's obligations or alter the primary
liability of Lessee to pay the rent and to perform all other obligations to be
performed by Lessee hereunder. The acceptance of rent by Lessor from any other
person shall not be deemed to be a waiver by Lessor of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent to any
subsequent assignment or subletting.
12.3. ATTORNEY'S FEES. In the event that Lessor shall consent to a
sublease or assignment under Paragraph 12.1, Lessee shall pay Lessor's
reasonable attorney's fees not to exceed $100 incurred in connection with
giving such consent.
13. DEFAULTS; REMEDIES.
13.1. DEFAULTS. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment or rent or any other payment
required to be made by Lessee hereunder, as and when due, where such failure
shall continue for a period of three days after written notice thereof from
Lessor to Lessee.
(c) The failure by Lessee to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Lessee,
other than described in paragraph (b) above, where such failure shall
continue for a period of 30 days after written notice hereof from Lessor to
Lessee; provided, however, that if the nature of Lessee's default is such that
more than 30 days are reasonably required for its cure, then Lessee shall not
be
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deemed to be in default if Lessee commences such cure within said 30-day period
and thereafter diligently prosecutes such cure to completion.
(d) (i) The making by Lessee of any general assignment or general
arrangement for the benefit of creditors; (ii) the filing by or against Lessee
of a petition to have Lessee adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy (unless, in
the case of a petition filed against Lessee, the same is dismissed within 60
days); (iii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to Lessee within 30
days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where such seizure is not discharged within 30 days.
13.2. REMEDIES. In the event of any such default or breach by Lessee,
Lessor may at any time thereafter, with or without notice or demand and without
limiting Lessor in the exercise of any right or remedy which Lessor may have by
reason of such default or break:
(a) Terminate Lessee's right to possession of the Premises by any lawful
means, in which case this Lease shall terminate and Lessee shall immediately
surrender possession of the Premises to Lessor. In such event Lessor shall be
entitled to recover from Lessee all damages incurred by Lessor by reason of
Lessee's default including, but not limited to, the cost of recovering
possession of the Premises; expenses of relenting, including necessary
renovation and alteration of, the Premises, reasonable attorney's fees, and any
real estate commission actually paid; the worth at the time of award by the
court having jurisdiction thereof of the amount by which the unpaid rent for
the balance of the term after the time of such award exceeds the amount of such
rental loss for the same period that Lessee proves could be reasonably avoided.
Unpaid installments or rent or other sums shall bear interest from the date due
at the rate of 10% per annum. In the event Lessee shall have abandoned the
Premises, Lessor shall have the option of (i) retaking possession of the
Premises and recovering from Lessee the amount specified in this Paragraph 13.2
(a), or (ii) proceeding under Paragraph 13.2 (b).
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(b) Maintain Lessee's right to possession in which case this Lease shall
continue in effect whether or not Lessee shall have abandoned the Premises. In
such event Lessor shall be entitled to enforce all of Lessor's rights and
remedies under this Lease, including the right to recover the rent as it
becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor under the
laws or judicial decisions of the State of California.
13.3. DEFAULT BY LESSOR. Lessor shall not be in default unless Lessor
fails to perform obligations required of Lessor within a reasonable time, but
in no event later than thirty (30) days after written notice by Lessee to
Lessor and to the holder of any first mortgage or deed of trust covering the
Premises whose name and address shall have theretofore been furnished to Lessee
in writing, specifying wherein Lessor has failed to perform such obligation;
provided, however, that if the nature of Lessor's obligation is such that more
than thirty (30) days are required for performance then Lessor shall not be in
default if Lessor commences performance within such 30-day period and
thereafter diligently prosecutes the same to completion.
13.4. LATE CHARGES. Lessee hereby acknowledges that late payment by Lessee
to Lessor of rent and other sums due hereunder will cause Lessor to incur costs
not contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges which may be imposed on Lessor by the
terms of any mortgage or trust deed covering the Premises. Accordingly, if any
installment of rent or any other sum due from Lessee shall not be received by
Lessor or Lessor's designee within ten (10) days after such amount shall be
due, Lessee shall pay to Lessor a late charge equal to 10% of such overdue
amount. The parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason of late payment by
Lessee. Acceptance of such late charge by Lessor shall in no event constitute
a waiver of Lessee's default with respect to such overdue amount, nor prevent
Lessor from exercising any of the other rights and remedies granted hereunder.
14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain, or sold under the threat of the exercise of said power
all of which are herein called "condemnation", this Lease shall terminate as
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to the part so taken as of the date the condemning authority takes title or
possession, whichever first occurs. If more than 10% of the floor area of the
improvements of the premises, or more than 25% of the land area of the Premises
which is not occupied by any improvements, is taken by condemnation, Lessee
may, at Lessee's option, to be exercised in writing only within ten (10) days
after Lessor shall have given Lessee written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
shall have taken possession) terminate this Lease as of the date the condemning
authority takes such possession. If Lessee does not terminate this Lease in
accordance with the foregoing, this Lease shall remain in full force and effect
as to the portion of the Premises remaining except that the rent shall be
reduced in the proportion that the floor area taken bears to the total floor
area of the building situated on the Premises. Any award for the taking of all
or any part of the Premises under the power of eminent domain or any payment
made under threat of the exercise of such power shall be the property of
Lessor, whether such award shall be made as compensation for diminution in
value of the leasehold or for the taking of the fee, or as severance damages;
provided, however, that Lessee shall be entitled to any award for loss of or
damage to Lessee's trade fixtures and removable personal property. In the event
that this Lease is not terminated by reason of such condemnation, Lessor shall,
to the extent of severance damages received by Lessor in connection with such
condemnation, repair any damage to the Premises caused by such condemnation
except to the extent that Lessee has been reimbursed therefor by the
condemning authority. Lessee shall pay any amount in excess of such severance
damages required to complete such repair.
15. GENERAL PROVISIONS.
15.1. ESTOPPEL CERTIFICATE.
(a) Lessee shall at any time upon not less than ten (10) days prior
written notice from Lessor execute, acknowledge and deliver to Lessor a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect) and
the date to which the rent and other charges are paid in advance, if any, and
(ii) acknowledging that there are not, to Lessee's knowledge, any uncured
defaults
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on the part of Lessor hereunder, or specifying such defaults if any are
claimed. Any such statement may be conclusively relied upon by any prospective
purchaser or encumbrancer of the Premises.
(b) Lessee's failure to deliver such statement within such time shall be
conclusive upon Lessee (i) that this Lease is in full force and effect, without
modification except as may be represented by Lessor, (ii) that there are no
uncured defaults in Lessor's performance, and (iii) that not more than one
month's rent has been paid in advance.
(c) If Lessor desires to finance or refinance the Premises, or any part
thereof, Lessee hereby agrees to deliver to any lender designated by Lessor
such financial statements of Lessee as may be reasonably required by such
lender. All such financial statements shall be received by Lessor in confidence
and shall be used only for the purposes herein set forth.
15.2. SEVERABILITY. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
15.3. INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein
provided, any amount due to Lessor not paid when due shall bear interest at 10%
per annum from the date due. Payment of such interest shall not excuse or cure
any default by Lessee under this Lease.
15.4. TIME OF ESSENCE. Time is of the essence.
15.5. CAPTIONS. Article and paragraph captious are not a part hereof.
15.6. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains
all agreements of the parties with respect to any matter mentioned herein. No
prior agreement or understanding pertaining to any such matter shall be
effective. This Lease may be modified in writing only, signed by the parties in
interest at the time of the modification.
15.7. NOTICES. Any notice required or permitted to be given hereunder
shall be in writing and may be served personally or by regular mail, addressed
to Lessor and Lessee respectively at the addresses set forth after their
signatures at the end of this Lease.
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15.8. WAIVERS. No waiver by Lessor of any provision hereof shall be deemed
a waiver of any other provision hereof or of any subsequent breach by Lessee of
the same or any other provision. Lessor's consent to or approval of any act
shall not be deemed to render unnecessary the obtaining of Lessor's consent to
or approval of any subsequent act by Lessee. The acceptance of rent hereunder
by Lessor shall not be a waiver of any preceding breach by Lessee of any
provision hereof, other than the failure of Lessee to pay the particular rent
so accepted, regardless of Lessor's knowledge of such preceding breach at the
time of acceptance of such rent.
15.9. RECORDING. Lessee shall not record this Lease without Lessor's prior
written consent and such recordation shall, at the option of Lessor, constitute
a non-curable default of Lessee hereunder. Either party shall, upon request of
the other, execute, acknowledge and deliver to the other a "short form"
memorandum of this Lease for recording purposes.
15.10. HOLDING OVER. If Lessee remains in Possession of the Premises or
any part thereof after the expiration of the term hereof without the express
written consent of Lessor, such occupancy shall be a tenancy from month to
month at a rental in the amount of the last monthly rental plus all other
charges payable hereunder, and upon all the terms hereof applicable to a
month-to-month tenancy.
15.11. CUMULATIVE REMEDIES. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
15.12. COVENANTS AND CONDITIONS. Each provision of this Lease performable
by Lessee shall be deemed both a covenant and a condition.
15.13. BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof
restricting assignment or subletting by Lessee, this Lease shall bind the
parties, their personal representatives, successors and assigns. This Lease
shall be governed by the laws of the State of California.
15.14. SUBORDINATION.
(a) This Lease, at Lessor's option, shall be subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation for security now or
hereafter placed upon the real property of which the Premises are a part and to
any and all advances made or the security thereof and to all renewals,
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modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Lessee's rights to quiet possession of the
Premises shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee or ground lessor shall elect to have this Lease prior to the
lien of its mortgage, deed of trust or ground lease, and shall give written
notice thereof to Lessee, this Lease shall be deemed prior to such mortgage,
deed of trust, or ground lease, whether this Lease is dated prior or subsequent
to the date of said mortgage, dead of trust or ground lease or the date of
recording thereof.
(b) Lessee agrees to execute any documents required to effectuate such
subordination or to make this Lease prior to the lien of any mortgage, deed of
trust or ground lease, as the case may be, and failing to do so within ten (10)
days after written demand, does hereby make, constitute and irrevocably appoint
Lessor as Lessee's attorney in fact and in Lessee's name, place and stead, to
do so.
15.15. ATTORNEY'S FEES. If either party named herein brings an action to
enforce the terms hereof or declare rights hereunder, the prevailing party in
any such action, on trial or appeal, shall be entitled to his reasonable
attorney's fees to be paid by the losing party as fixed by the court.
15.16. LESSOR'S ACCESS. Lessor and Lessor's agents shall have the right to
enter the Premises at reasonable times for the purpose of inspecting the same,
showing the same to prospective purchasers, or lenders, and making such
alterations, repairs, improvements or additions to the Premises or to the
building of which they are a part as Lessor may deem necessary or desirable.
Lessor may at any time place on or about the Premises any ordinary "For Sale"
signs and Lessor may at any time during the last 120 days of the term hereof
place on or about the Premises any ordinary "For Lease" signs, all without
rebate of rent or liability to Lessee.
15.17. SIGNS AND AUCTIONS. Lessee shall not place any sign upon the
Premises or conduct any auction thereon without Lessor's prior written consent.
15.18. MERGER. The voluntary or other surrender of this Lease by Lessee or
a mutual cancellation thereof, shall not work a merger, and shall, at the
option of Lessor, terminate all of any existing subtenancies or may, at the
option of Lessor, operate as an assignment to Lessor of any or all if such
subtenancies.
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15.19. CORPORATE AUTHORITY. If Lessee is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the By-laws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. If Lessee is a corporation Lessee shall, within thirty (30)
days after execution of this Lease, deliver to Lessor a certified copy of a
resolution of the Board of Directors of said corporation authorizing or
ratifying the execution of this Lease.
15.20. INSURING PARTY. The insuring party under this Lease shall be the
LESSEE.
The parties hereto have executed this Lease at the place and on the dates
specified immediately adjacent to their respective signatures.
If this Lease has been filled in it has been prepared for submission to
your attorney for his approval. No representation or recommendation is
made as to the legal sufficiency, legal effect, or tax consequences of
this Lease or the transaction relating thereto.
EXECUTED AT
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on
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Address By /s/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx, Trustee
By /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, Trustee
By /s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx, Trustee
"Lessor"
Executed at Rosemead Calif LA VICTORIA FOODS, INC.,
a corporation
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on 7/9/85 By /s/ XXXXXX X. XXXXXXXX
President
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Address 9133 X. Xxxxxx By /s/ XXXXXX XXXXXXX (Secretary)
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"Lessee"
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EXHIBIT A
DESCRIPTION
Description of 7.54 acre parcel of land located
at the Northeast corner of Xxxxxxx Avenue and
Sixth Avenue in City of Industry, California:
That certain parcel of land, situate in the City of Industry, County
of Los Angeles, State of California, being the southwesterly 691.00 feet of the
northwesterly 475.00 feet of Block 5, Tract No. 1343 as per map recorded in
Book 20, pages 10 and 11 of Maps, records of said County.
20
MAP
21
ADDENDUM TO LEASE AND AGREEMENT
CITY OF INDUSTRY LEASE
ITEM 3.1 SHALL READ: THIS LEASE SHALL EXPIRE ON JULY 31, 1995 WITH THREE
FIVE-YEAR OPTIONS, THRU JULY 31, 2010. ALL OTHER PROVISIONS REMAIN THE SAME.
LESSOR
/s/ XXXXXX X. XXXXXXXX
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XXXXXX X. XXXXXXXX, TRUSTEE
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XXXXXXX X. XXXXXXX, TRUSTEE
LA VICTORIA FOODS, A CORPORATION
/s/ XXXXXX X. XXXXXXXX
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XXXXXX X. XXXXXXXX, PRESIDENT
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XXXXXX XXXXXXX, SECRETARY
