EXHIBIT 10.45
STANDARD INDUSTRIAL LEASE
1. PARTIES. This Lease, dated, for reference purposes only, January 6, 2000
between Xxxxxxx X. Xxxxx (herein called "Lessor") and American Top Real
Estate Co., Inc. and Diamond Entertainment (herein called "Lessee").
2. PREMISES. Lessor hereby leases to Lessee and Lessee leases from Lessor for
the term, at the rental, and upon all the conditions set forth herein, that
certain real property situated in the county of Los Angeles State of
California, commonly known as 000 Xxxxxx Xxxx, Xxxx xx Xxxxxxxx, XX 00000
and described as an Industrial Unit of approximately 20,097 square feet
Said real property including the land and all improvements thereon, is
herein called "the Premises".
3. TERM.
3.1 Term. The term of this lease shall be for three years commencing on
February 1, 2000 and ending on January 31, 2003 unless sooner
terminated pursuant to any provision hereof.
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 therefore,
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 tendered to Lessee; provided, however, that if Lessor shall
not have delivered possession of the Premises within ninety (90) days
from said commencement date, Lessee may, at Lessee's option, by notice
in writing to Lessor within ten (10) day 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.
4. RENT. Lessee shall pay Lessor as rent for the Premises, in advance, on the
first day of each month of the term hereof, according to the following
schedule: $10,500.00 per month for the period of 02/01/2000 through
01/31/2003. Lessee shall pay Lessor upon the execution hereof $10,500.00 as
rent for February 2000.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof
$21,000.00 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 therefore
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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 Warehousing of
Video Tapes/Toys & general merchandise for purpose of sale to include
loading and packaging products/& administrative and marketing
activities.
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 of the premises in any manner that will tend to create waste
or nuisance or, it there shall be more than one tenant of the building
containing the Premises, which shall lend 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 the state laws,
ordinances and regulations governing and regulating the use of the
Premises, and accepts this Lease subject thereto and all matters
disclosed thereby and by 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. Lessor to repair chain link fence in rear of
premise.
7. MAINTENANCE, REPAIRS AND ALTERATIONS
7.1 Lessor's Obligations. Subject to the provisions of Article 9 and
except for damage caused by any negligent or intentional act or
omission of Lessee, Lessee's agents, employees, or invites. Lessor, at
Lessor's expense, shall keep in good order, condition and repair the
foundations, exterior walls and the exterior roof of the Premises.
Lessor shall not, however, be obligated to paint such exterior, nor
shall Lessor be required to maintain the interior surface of exterior
walls, windows, doors or plate glass. Lessor shall have no obligation
to make repairs under this paragraph 7.1 until a reasonable time after
receipt of written notice of the need to such repairs. 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.
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7.2 Lessee's Obligations.
(a) Subject to the provisions of Paragraph 9 and Paragraph 7.1,
Lessee, at Lessee's expense, shall keep in good order, condition
and repair the Premises and every part thereof (regardless of
whether the damaged portion of the Premises or the means of
repairing the same are accessible to Lessee), including without
limiting the generality of the foregoing, all plumbing, heating,
air conditioning, ventilating, electrical and lighting facilities
and equipment within the Premises, fixtures, interior surface of
exterior walls, ceiling , windows, doors, plate glass, and
skylights located within the Premises and all sidewalks,
landscaping, driveways, parking lots, fences and signs located in
the areas which are adjacent to and included with the Premises.
(b) If Lessee fails to perform Lessee's obligations under the
paragraph 7.2, Lessor may at Lessor's option enter upon the
Premises after 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 be due and payable as additional rent to Lessor
together with Lessee's next rental installment.
(c) 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 received, broom clean, ordinary wear and tear
excepted. Lessee shall repair any damage to the Premises
occasioned by the removal of it's trade fixtures, furnishings and
equipment pursuant to paragraph 7.3(c), which repair shall
include the patching and filling of holes and repair of
structural damage.
7.3 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 $2,000 in cost. As used
in this Paragraph 7.3, 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 the
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 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 Premesis and
Lessor shall have the right to post notices of non-responsibility
in or on the Premisis as provided by law.
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(c) Unless Lessor requires their removal, as set forth in Paragraph
7.3 (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 7.3(c), Lessee's
machinery and equipment, other than that which is affixed to the
Premises so that it cannot be removed without material damage to
the Premises, shall remain the property of Lessee and may be
removed by Lessee subject to the provisions of Paragraph 7.2(c).
(d) Any alterations, Improvements, additions or Utility installations
in, or about the premises that Lessee shall desire to make and
which requires the consent of the Lessor shall be presented to
Lessor in written form, with proposed detailed plans. If Lessor
shall give its consent shall be deemed conditioned upon lessee
acquiring a permit to do so from appropriate governmental
agencies, the furnishing of a copy thereof to Lessor prior to
commencement of the work and the compliance by Lessee of all
conditions of said permit in a prompt and expeditious manner.
8. INSURANCE; INDEMNITY.
8.1 Insurance. Lessee shall, at Lessee's Expense, obtain and keep in force
during the term of this Lease a policy of Combines Single Limit Bodily
Injury and Property Damage Insurance insuring Lessee and Lessor
against liability arising out of the use, occupancy or maintenance of
the premises and all other areas appurtenant thereto. Such insurance
shall be in an amount of not less than $1,000,000 per occurrence. The
policy shall insure performance by Lessee of the indemnity provisions
of this Paragraph 8. The limits of said insurance shall not, however,
limit the liability of Lessee hereunder. If Lessee shall fail to
procure and maintain said insurance, Lessor may, but shall not be
required to, procure and maintain the same, but at the expense of
Lessee.
8.2 Property Insurance. Lessor 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 perils (all risk). Lessee shall pay during
the term hereof, in addition to rent, the amount of any increase in
premiums for the insurance required under this Paragraph 8.2 over and
above such premiums paid by Lessor during the first full year of the
term of this Lease in which Lessor shall have maintained the insurance
required under this Paragraph 8.2, whether such premiums increase
shall be the result of the nature of Lessee's occupancy, any act or
omission of Lessee, requirements of the holder of a mortgage or deed
of trust covering the Premises, or increased valuation of the
Premises. Lessee shall pay any such premium increases to Lessor within
30 days after receipt by Lessee of a copy of the premium statement or
other satisfactory evidence of the amount due. If the insurance
policies maintained hereunder cover over improvements in addition to
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the Premises, Lessor shall also deliver to Lessee a statement of the
amount of such increase attributable to the Premises and showing in
reasonable detail the manner in which such amount was computed. If the
term of this Lease shall not expire concurrently with the expiration
of the period covered by such insurance, Lessee's liability for
premium increases shall be prorated on an annual basis.
8.3 Insurance Policies. Insurance required hereunder shall be in companies
rated AAA or better in "Best's Insurance Guide". Lessee shall deliver
to Lessor copies of policies of liability insurance required under
Paragraph 8.1 or certificates evidencing the existence and amounts of
such insurance with loss payable clauses satisfactory to Lessor. No
such policy shall be cancelable or subject to reduction of coverage or
other modification except after ten (10) days' prior written notice to
Lessor. Lessee shall, within ten (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 upon demand. Lessee shall not do or
permit to be done anything which shall indicate the insurance policies
referred to in paragraph 8.2.
8.4 Waiver of Subrogation. Lessee and Lessor each hereby waives 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, where such loss or damage is insured against under
any insurance policy in force at the time of such loss or damage.
Lessee and Lessor 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 the
Lease.
8.5 Indemnity. Lessee shall indemnity 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 indemnity and hold harmless Lessor from
and against any and all claims arising from any breach or default in
the performance of any obligations 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.
8.6 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, invites, customers, or
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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 or injury is caused by or results
from fire, steam, electricity, gas, water or rain, or from the
breakage, leakage, obstruction or other defects of pipes, sprinklers,
wires, appliances, plumbing, air conditioning or lighting fixtures, or
from any other cause, whether the said damage or injury results from
conditions arising upon the Premises or upon other 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.
9.1 Partial Damage -Insured. Subject to the provisions of Paragraph 9.4,
if the Premises are damaged and such damage was caused by a casualty
covered under an insurance policy required to be maintained pursuant
to Paragraph 8.2, Lessor shall at Lessor's expense repair such damage
as soon as reasonably possible and this lease shall continue in full
force and effect.
9.2 Partial Damage -Uninsured. Subject to the provisions of Paragraph 9.4,
if at any time during the term hereof the Premises are damaged, except
by a negligent or willful act of Lessee, and such damage was caused by
a casualty not covered under an insurance policy required to be
maintained by lessor pursuant to Paragraph8.2, Lessor may at Lessor's
option either (I) repair such damage as soon as reasonably possible at
Lessor's expense, in which event this Lease shall continue in full
force and effect, or (II) give written notice to Lessee within thirty
(30) days after the date of the occurrence of such damage of Lessor's
intention to cancel and terminate this Lease as of the date of the
occurrence of such damage. In the event Lessor elects to give such
notice of Lessor's intention to cancel and terminate this Lease,
Lessee shall have the right within ten (10) days after the receipt of
such notice to Lessor of Lessee's intention to repair such damage at
lessee's expense, without reimbursement from Lessor, in which event
this Lease shall continue in full force and effect, and lessee shall
proceed to make such repairs as soon as reasonably possible. If Lessee
does not give such notice within such 10-day period this Lease shall
be cancelled and terminated as of the date of the occurrence of such
damage.
9.3 Total Destruction. If at any time during the term hereof the Premises
are totally destroyed from any cause whether or not covered by the
insurance required to be maintained by Lessor pursuant to Paragraph
8.2 (including any total destruction required by any authorized public
authority) this Lease shall automatically terminate as of the date of
such total destruction.
9.4 Damage Near End of Term. If the Premises are partially destroyed or
damaged during the last six months of the term of this Lease, Lessor
may at Lessor's option cancel and terminate this lease as of the date
of the occurrence of such damage by giving written notice to Lessee of
Lessor's election to do so within 30 days after the date of occurrence
of such damage.
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9.5 Abatement of Rent; Lessee's Remedies
(a) If the Premises are partially destroyed or damaged and Lessor or
Lessee repairs or restores them pursuant to the provisions of this
Article, the rent payable hereunder for the period during which such
damage, repair or restoration continues shall be abated in proportion
to the degree to which Lessee's use of Premises is impaired. Except
for abatement of rent, if any, Lessee shall have no claim against
Lessor for any damage suffered by reason of any such damage,
destruction, repair of restoration.
(b) If Lessor shall be obligated to repair or restore the Premises under
the provisions of this paragraph 9 and shall not commence such repair
or restoration within 90 days after such obligations shall accrue,
Lessee may at Lessee's option cancel and terminate this Lease by
giving Lessor written notice of Lessee's election to do so at any time
prior to commencement of such repair or restoration. In such event
this Lease shall terminate as of the date of such notice. Any
abatement in rent shall be computed as provided in Paragraph 9.5(a).
9.6 Termination-Advance Payments. Upon termination of this Lease pursuant
to this Paragraph 9, an equitable adjustment shall be made concerning
advance rent and any advance payments made by Lessee to Lessor. Lessor
shall, in addition, return to lessee so much of Lessee's security
deposit as has not therefore been applied by Lessor.
10. REAL PROPERTY TAXES.
10.1 Payment of Tax Increase. Lessor shall pay all real property taxes
applicable to the Premises; provided, however, that Lessee shall pay,
in addition to rent, the amount, if any, by which real property taxes
applicable to the Premises increase over the fiscal tax year
1999/2000. Such payment shall be made by Lessee within thirty (30)
days after receipt of Lessor's written statement setting forth the
amount of such increase and the reasonable computation thereof. If the
term of this Lease shall not expire concurrently with the expiration
of the tax fiscal year, Lessee's liability for increased taxes for the
last partial Lease year shall be prorated on an annual basis.
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 or 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 work sheets
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or such other information as may be reasonably available. Lessor's
reasonable determination thereof, in good faith, shall be conclusive.
10.4 Personal Property Taxes.
(a) 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.
(b) If any of Lessee's said personal property shall be assessed with
Lessor's real property, Lessee shall pay Lessor the taxes
attributed to Lessee within 10 days after receipt of a written
statement setting forth the taxes applicable to Lessee's
property.
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.
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 obligation 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 sublease or
assignment under paragraph 12.1, Lessee shall pay Lessor's reasonable
attorneys' fees no to exceed $250.00 incurred in connection with
giving such consent.
12.4 Lessor's Election. Lessee's request for consent to any transfer
described in Paragraph 12.1 above shall be accompanied by a written
statement setting forth the details of the proposed transfer,
including the name, business and financial condition of the
prospective transferee, financial details of the proposed transfer
(e.g., the term of and rent and security deposit payable under any
assignment or sublease, and any other information Lessor deems
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relevant. Lessor shall have the right (a) to withhold consent, if
reasonable; (b) to grant consent; or (c) if the transfer is a sublease
of the premises or an assignment of this Lease, to terminate this
Lease as effective date of such sublease or assignment, in which case
Lessor may elect to enter into a direct lease with a proposed assignee
or sublessee.
13. DEFAULTS; REMEDIES.
13.1 Defaults. The occurrence of any one or more of the following events
shall constitute a material default and breach of this lease by
Lessee:
(a) The vacating or abandonment of the Premises by Less.
(b) The failure by Lessee to make any payment of 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 deemed to be in default if Lessee commenced 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, here possession 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 material 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 breach:
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
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of the Premises; expenses of reletting, 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 that Lessee
proves could be reasonably avoided; that portion of the leasing
commission paid by Lessor pursuant to Article 15 applicable to
the unexpired term 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).
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 right 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 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
other rights and remedies granted hereunder. In the event that a late
charge is payable hereunder, whether or not collected, for three (3)
consecutive installments of rent, then rent shall automatically become
due and payable quarterly in advance, rather than monthly,
notwithstanding any other provision of this Lease to the contrary.
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14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain, or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority
takes title or possession, whichever first occurs. If more than 10% of the
floor area of the improvements on 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 has 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 therefore 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 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.
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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 statement of Lessee as may be
reasonably required by such lender. Such statements shall include
the past three years" financial statements of Lessee. All such
financial statements shall be received by Lessor in confidence
and shall be used only for the purposes herein set forth.
15.2 Lessor's Liability. The term "Lessor" as used herein shall mean only
the owner or owners at\the time in question of the fee title or a
lessee's interest in a ground lease of the Premises, and except as
expressed provided in Paragraph 15, in the event of any transfer of
such title or interest, Lessor herein named (and in case of any
subsequent transfers the then grantor) shall be relieved from and
after the date of such transfer of all liability as respects Lessor's
obligations thereafter to be performed, provided that any funds in the
hands of lessor or the then grantor at the time of such transfer, in
which Lessee has an interest, shall be delivered to the grantee. The
obligations contained in this Lease to be performed by Lessor shall,
subject as aforesaid, be binding on Lessor's successors and assigns,
only during their respective periods of ownership.
15.3 Severability. The invalidity of any provision of the Lease as
determined by a court of competent jurisdiction, shall in no way
affect the validity of any other provision hereof.
15.4 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.
15.5 Time of Essence. Time is of the essence.
15.6 Captions. Article and Paragraph captions are not a part hereof.
15.7 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.
15.8 Notices. Any notice required or permitted to be given hereunder shall
be in writing and may be served personally or by regular mail,
addresses to Lessor and Lessee respectively at the address set for the
after their signatures at the end of this Lease.
15.9 Waivers. No Waiver by Lessor of any provision hereof shall be deemed a
waiver of any on 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 so accepted, regardless of Lessor's knowledge of
such preceding breach at the time of acceptance of such rent.
15.10 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
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shall, upon request of the other, execute, acknowledge and deliver to
the other a "short form" memorandum of this Lease for recording
purposes.
15.11 Holding over. Lessee shall vacate the Premises upon the expiration or
earlier termination of this Lease. Lessee shall reimburse Lessor for
and indemnity Lessor against all damages incurred by Lessor from any
delay by Lessee in vacating the Premises. If Lessee does not vacate
the Premises upon the expiration or earlier termination of the Lease,
and Lessor thereafter accepts rend from Lessee, Lessee's occupancy of
the Premises shall be "month-to-month " tenancy, subject to all of the
terms of this Lease applicable to a month-to-month tenancy, except
that the rent shall be increased by twenty percent (20%).
15.12 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.
15.13 Covenants and Conditions. Each provision of this Lease performable by
Lessee shall be deemed both a covenant and a condition.
15.14 Binding effect; Choice of Law. Subject to any provisions hereof
restricting assignment of subletting by Lessee and subject to the
provisions of Paragraph 15.2, 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.
15.15 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 on
the security thereof and to all renewals, modifications,
consolidations, replacements and extensions of thereof.
Notwithstanding such subordination, Lessee's right 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
mortgages, trust or ground lessor shall elect to have this Lease
prior to the lien of it's 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, deed of trust or ground lease or the
date of recording thereof.
b) Lessee agrees to execute any document 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.
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15.16 Attorney's Fees. If either party or the broker named herein brings an
action to enforce the terms hereof to 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. The provisions of this paragraph shall
insure to the benefit of the broker named herein who seeks to enforce
a right hereunder.
15.17 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, repair, 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.
15.18 Signs and Auctions. Lessee shall not place any sign upon the Premises
or conduct any auction thereon without Lessor's prior written consent.
15.19 Merger. The voluntary or other surrender of the Lease by Lessee, or a
mutual cancellation thereof, shall not work a merger, and shall, at
the option of Lessor, terminate all or any existing subtenancies or
may, at the option of Lessor, operate as an assignment to Lessor or
any or all of subtenancies.
15.20 Corporate Authority. If Lessee is a corporation, each individual
executing this Lease on behalf of said corporation represents and
warrants that he is duty 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 Bylaws 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.
15.21 Storage. Lessee shall perform all work within the building; Lessee
shall permit no outside storage.
15.22 Multiple Tenant Buildings Rules. If the Premises are a part of a
large building or group of buildings, Lessee shall comply with
Lessor's rules and regulations, now or hereafter established by
Lessor, respecting the management, care and safety of the common areas
of such buildings and grounds, including parking areas, landscaped
areas, walkways and other facilities provided for the common use and
convenience of other occupants. Notice of such rules and regulations
will be posted or given to Lessee from time to time.
15.23 Hazardous Materials. Lessee shall not without prior written
permission of Lessor bring or allow hazardous or toxic materials on
Premises, allow the Premises to be identified as a site for the use,
processing or disposal of said materials, or install on Premises any
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above or below ground storage tanks. Notwithstanding the foregoing,
Lessee may without prior written permission of Lessor keep and use
ordinary and customary materials reasonably required to be sued by
Lessee incidental to Lessee's normal course of business so long as
such use does not require permits or permissions of any governmental
authority, is in full compliance with all applicable law, and does not
expose persons, the Premises or neighboring properties to meaningful
risk of injury, contamination, or damage, or expose Lessor to any
liability therefore. If hazardous or toxic material activity related
to Lessee's occupancy of the Premises, whether or not permitted by
Lessor or by law, results in injury, contamination, or damage to
persons or the Premises or liability to Lessor (a " Hazardous Event"),
Lessee shall at Lessee's sole cost and expense take all actions
necessary, subject to Lessor's prior approval, to protect persons, the
Premises and Lessor, and to restore the Premises to their condition
prior to their condition prior to the Hazardous Event. Lessor reserves
the right subsequent to the Hazardous Event to take such actions at
Lessee's sole cost and expense, which Lessor in Lessor's sole
discretion deems necessary or convenient to protect persons, the
Premises, and Lessor, any such actions or failure to act shall not
subject Lessor to any liability or release Lessee of Liability or
responsibility hereunder or at law. Lessee shall indemnify, defend,
and hold harmless Lessor, its officers, agents, employees, lenders,
mortgagees, and ground Lessors from any and all costs, expenses,
losses, actions, suits, claims, permits, attorneys and consultants
fees, loss of rents, diminution in value, judgments, sentences,
penalties, takings, and any other liability whatsoever in connection
with or related to a Hazardous Event. Lessee's covenants, warranties
and indemnities contained herein shall expressly survive the
expiration or earlier termination of the Lease.
15.24 Lessee has inspected the Premises and agrees to accept it in its
existing condition.
15.25 Lessee is aware of and shall obtain at Lessee's sole cost and expense
a City of Industry Use Permit and comply with requirements of the Los
Angeles County Fire Department.
This Lease has been filled in for submission to your attorney for approval.
No representation or recommendation is made by the Lessor, the real estate
broker or any agents or employees as to the legal sufficiency, legal
effect, or tax consequences of this Lease or the transaction relating
thereto. Lessee represents and acknowledges that Lessee has made its own
independent investigation and sought its own independent council regarding
this Lease and the transaction relating thereto.
Executed at WALNUT, CA XXXXXXX X. XXXXX
On January 7, 2000
Address 000 XXXXX XXXXXX By /S/ Xxxxxxx X. Xxxxx
XXXXXX, XX 00000 -----------------------
(000) 000-0000 Xxxxxxx X. Xxxxx, Owner
"LESSOR"
Executed at WALNUT, CA
AMERICAN TOP REAL ESTATE CO.,
On January 7, 2000 INC. AND DIAMOND ENTERTAINMENT
Address 00000 XXXXXXXXX XXXX
XXXXXXXX, XX 00000-0000 By /S/ Xxxxx Xx
(000) 000-0000 ----------------------
FIN 00-0000000
Xxxxx Xx, President
"LESSOR"
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