EXHIBIT 10.4
SUB-LEASE AGREEMENT, DATED DECEMBER 13, 2001, AMONG
ARVILLE & XXXXXXX, LLC, WESTERN WINDOW & DOOR COMPANY
AND CRYSTALIX USA GROUP, AND AMENDEMENT THERETO
STANDARD SUBLEASE
MULTI-TENANT
1. BASIC PROVISIONS ("BASIC PROVISIONS").
1.1 PARTIES: This Sublease ("Sublease"), dated for reference
purposes only DECEMBER 13, 2001, is made by and between WESTERN WINDOW & DOOR
CORPORATION ("Sublessor") and CRYSTALIX USA GROUP ("Sublessee"), (collectively
the "PARTIES", or individually a "PARTY".
1.2(a) PREMISES: That certain portion of the Project (as defined
below), known as XXXXXXX COMMERCE CENTER consisting of approximately 1680 square
feet ("Premises"). The Premises are located at: 0000 X. XXXXXXX XX. #000, in the
City of LAS VEGAS, County of XXXXX, State of NV, with zip code 89118. In
addition to Lessee's rights to use and occupy the Premises as hereinafter
specified, Lessee shall have nonexclusive rights to the Common Areas (as defined
below) as hereinafter specified, but shall not have any rights to the roof, the
exterior walls, or the utility raceways of the building containing the Premises
("Building") or to any other buildings in the Project. The Premises, the
Building, the Common Areas, the land upon which they are located, along with all
other buildings and improvements thereon, are herein collectively referred to as
the "Project."
1.2(b) PARKING: 5 unreserved and 0 reserved vehicle parking spaces.
1.3 TERM: 4 years and 1 months commencing JANUARY 1, 2002
("Commencement Date") and ending JANUARY 31, 2006 ("Expiration Date").
1.4 EARLY POSSESSION: DECEMBER 21, 2001 ("Early Possession Date").
1.5 BASE RENT: $1304.88 per month ("Base Rent"), payable on the
1ST day of each month commencing JANUARY 1, 2002.
[X] If this box is checked, there are provisions in this Lease for the Base Rent
to be adjusted.
1.6 LESSEE'S SHARE OF OPERATING EXPENSES: 235.20 percent (3.8%)
("Lessee's Share").
1.7 BASE RENT AND OTHER MONIES PAID UPON EXECUTION:
(a) BASE RENT: $1540.00 for the period 1540.-- ARMIN VAN
DAM 12-21-2001
(b) SECURITY DEPOSIT: $1540.00 ("Security Deposit").
(c) OTHER: $0 for _________-.
(d) TOTAL DUE UPON EXECUTION OF THIS LEASE: $3080.00
1.8 AGREED USE: OFFICE AND WAREHOUSE FOR STORAGE OF RETAIL RELATED
CRYSTAL AND LASER GOODS.
1.9 REAL ESTATE BROKERS:
(a) REPRESENTATION: The following real estate brokers (the
"Brokers") and brokerage relationships exist in this transaction (check
applicable boxes):
[X] COLDWELL BANKER COMMERCIAL ETN represents Sublessor exclusively ("Lessor's
Broker");
[ ] __________________ represents Sublessee exclusively ("Lessee's Broker"); or
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[ ] ______________ represents both Sublessor and Sublessee ("Dual Agency").
(b) PAYMENT TO BROKERS: Upon execution and delivery of this
Sublease by both Parties, Sublessor shall pay to the Brokers the brokerage fee
agreed to in a separate written agreement (or if there is no such agreement, the
sum of 4745.75 or 6% of the total Base Rent for the brokerage services rendered
by the Brokers).
1.10 GUARANTOR. The obligations of the Sublessee under this Sublease
shall be guaranteed by ____________________ ("Guarantor").
1.11 ATTACHMENTS. Attached hereto are the following, all of which
constitute a part of this Sublease:
[ ] an Addendum consisting of Paragraphs ________ through _______;
[ ] a plot plan depicting the Premises and/or Project;
[ ] a current set of the Rules and Regulations;
[ ] a Work Letter;
[ ] a copy of the Master Lease;
[ ] other (specify): ___________________________________________________________
2. PREMISES.
2.1 LETTING. Sublessor hereby subleases to Sublessee, and
Sublessee hereby subleases from Sublessor, the Premises, for the term, at the
rental, and upon all of the terms, covenants and conditions set forth in this
Sublease. Unless otherwise provided herein, any statement of size set forth in
this Sublease, or that may have been used in calculating Rent, is an
approximation which the Parties agree is reasonable and any payments based
thereon are not subject to revision whether or not the actual size is more or
less. Note: Sublessee is advised to verify the actual size prior to executing
this Sublease.
2.2 CONDITION. Sublessor shall deliver the Premises to Sublessee
broom clean and free of debris on the Commencement Date or the Early Possession
Date, whichever first occurs ("START DATE"), and warrants that the existing
electrical, plumbing, fire sprinkler, lighting, heating, ventilating and air
conditioning systems ("HVAC"), and any items which the Lessor is obligated to
construct pursuant to the Work Letter attached hereto, if any, other than those
constructed by Lessee, shall be in good operating condition on said date. If a
noncompliance with such warranty exists as of the Start Date, or if one of such
systems or elements should malfunction or fail within the appropriate warranty
period, Sublessor shall, as Sublessor's sole obligation with respect to such
matter, except as otherwise provided in this Sublease, promptly after receipt of
written notice from Sublessee setting forth with specificity the nature and
extent of such noncompliance, malfunction or failure, rectify same at
Sublessor's expense. The warranty periods shall be as follows: (i) 6 months as
to the HVAC systems, and (ii) 30 days as to the remaining systems and other
elements. If Sublessee does not give Sublessor the required notice within the
appropriate warranty period, correction of any such noncompliance, malfunction
or failure shall be the obligation of Sublessee at Sublessee's sole cost and
expense.
2.3 COMPLIANCE. Sublessor warrants that any improvements,
alterations or utility installations made or installed by or on behalf of
Sublessor to or on the Premises comply with all applicable covenants or
restrictions of record and applicable building codes, regulations and ordinances
("APPLICABLE REQUIREMENTS") in effect on the date that they were made or
installed. Sublessor makes no warranty as to the use to which Sublessee will put
the Premises or to modifications which may be required by the Americans with
Disabilities Act or any similar laws as a result of Sublessee's use. NOTE:
SUBLESSEE IS RESPONSIBLE FOR DETERMINING WHETHER OR NOT THE ZONING AND OTHER
APPLICABLE REQUIREMENTS ARE APPROPRIATE FOR SUBLESSEE'S INTENDED USE, AND
ACKNOWLEDGES THAT PAST USES OF THE PREMISES MAY NO LONGER BE ALLOWED. If the
Premises do not comply with said warranty, Sublessor shall, except as otherwise
provided, promptly after receipt of written notice from Sublessee setting forth
with specificity the nature and extent of such noncompliance, rectify the same.
2.4 ACKNOWLEDGEMENTS. Sublessee acknowledges that: (a) it has
been advised by Sublessor and/or Brokers to satisfy itself with respect to the
condition of the Premises (including but not limited to the electrical, HVAC and
fire sprinkler systems, security, environmental aspects, and compliance with
Applicable Requirements and the Americans with Disabilities Act), and their
suitability for Sublessee's intended use, (b) Sublessee has made such
investigation as it deems necessary with reference to such matters and assumes
all responsibility therefor as the same relate to its occupancy of the Premises,
and (c) neither Sublessor, Sublessor's agents, nor Brokers have made any oral or
written representations or warranties with respect to said matters other than as
set forth in this Sublease. In addition, Sublessor acknowledges that: (i)
Brokers have made no representations, promises or warranties concerning
Sublessee's ability to honor the Sublease or suitability to occupy the Premises,
and (ii) it is Sublessor's sole responsibility to investigate the financial
capability and/or suitability of all proposed tenants.
2.5 AMERICANS WITH DISABILITIES ACT. In the event that as a result
of Sublessee's use, or intended use, of the Premises the Americans with
Disabilities Act or any similar law requires modifications or the construction
or installation of improvements in or to the Premises, Building, Project and/or
Common Areas, the Parties agree that such modifications, construction or
improvements shall be made at: [ ] Sublessor's expense [X] Sublessee's expense.
2.6 VEHICLE PARKING. Sublessee shall be entitled to use the number
of Unreserved Parking Spaces and Reserved Parking Spaces specified in Paragraph
1.2(b) on those portions of the Common Areas designated from time to time for
parking. Sublessee shall not use more parking spaces that said number. Said
parking spaces shall be used for parking by vehicles no larger than fullsize
passenger automobiles or pickup trucks, herein called "PERMITTED SIZE VEHICLES."
Sublessor may regulate the loading and unloading of vehicles by adopting Rules
and Regulations as provided in Paragraph 2.9. No vehicles other than Permitted
Size Vehicles may be parked in the Common Area without the prior written
permission of Sublessor.
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(a) Sublessee shall not permit or allow any vehicles that belong to
or are controlled by Sublessee or Sublessee's employees, suppliers, shippers,
customers, contractors, or invitees to be loaded, unloaded, or parked in areas
other than those designated by Sublessor for such activities.
(b) Sublessee shall not service or store any vehicles in the
Common Areas.
(c) If Sublessee permits or allows any of the prohibited activities
described in this Paragraph 2.6, then Sublessor shall have the right, without
notice, in addition to such other rights and remedies that it may have, to
remove or tow away the vehicle involved and charge the cost to Sublessee, which
cost shall be immediately payable upon demand by Sublessor.
2.7 COMMON AREAS - DEFINITION. The term "COMMON AREAS" is defined
as all areas and facilities outside the Premises and within the exterior
boundary line of the Project and interior utility raceways and installations
within the Premises that are provided and designated by the Sublessor from time
to time for the general nonexclusive use of Sublessor, Sublessee and other
tenants of the Project and their respective employees, suppliers, shippers,
customers, contractors and invitees, including parking areas, loading and
unloading areas, trash areas, roadways, walkways, driveways and landscaped
areas.
2.8 COMMON AREAS - SUBLESSEE'S RIGHTS. Sublessor grants to
Sublessee, for the benefit of Sublessee and its employees, suppliers, shippers,
contractors, customers and invitees, during the term of this Sublease, the
nonexclusive right to use, in common with others entitled to such use, the
Common Areas as they exist from time to time, subject to any rights, powers, and
privileges reserved by Sublessor under the terms hereof or under the terms of
any rules and regulations or restrictions governing the use of the Project.
Under no circumstances shall the right herein granted to use the Common Areas be
deemed to include the right to store any property, temporarily or permanently,
in the Common Areas. Any such storage shall be permitted only by the prior
written consent of Sublessor or Sublessor's designated agent, which consent may
be revoked at any time. In the event that any unauthorized storage shall occur
then Sublessor shall have the right, without notice, in addition to such other
rights and remedies that it may have, to remove the property and charge the cost
to Sublessee, which cost shall be immediately payable upon demand by Sublessor.
2.9 COMMON AREAS - RULES AND REGULATIONS. Sublessor or such other
person(s) as Sublessor may appoint shall have the exclusive control and
management of the Common Areas and shall have the right, from time to time, to
establish, modify, amend and enforce reasonable rules and regulations ("RULES
AND REGULATIONS") for the management, safety, care, and cleanliness of the
grounds, the parking and unloading of vehicles and the preservation of good
order, as well as for the convenience of other occupants or tenants of the
Building and the Project and their invitees. Sublessee agrees to abide by and
conform to all such Rules and Regulations, and to cause its employees,
suppliers, shippers, customers, contractors and invitees to so abide and
conform. Sublessor shall not be responsible to Sublessee for the noncompliance
with said Rules and Regulations by other tenants of the Project.
2.10 COMMON AREAS - CHANGES. Sublessor shall have the right, in
Sublessor's sole discretion, from time to time:
(a) To make changes to the Common Areas, including,
without limitation, changes in the location, size, shape and number of
driveways, entrances, parking spaces, parking areas, loading and unloading
areas, ingress, egress, direction of traffic, landscaped areas, walkways and
utility raceways;
(b) To close temporarily any of the Common Areas for
maintenance purposes so long as reasonable access to the Premises remains
available;
(c) To add additional buildings and improvements to the
Common Areas;
(d) To use the Common Areas while engaged in making
additional improvements, repairs or alterations to the Project, or any portion
thereof; and
(e) To do and perform such other acts and make such other
changes in, to or with respect to the Common Areas and Project as Sublessor may,
in the exercise of sound business judgment, deem to be appropriate.
3. POSSESSION.
3.1 EARLY POSSESSION. If Sublessee totally or partially occupies
the Premises prior to the Commencement Date, the obligation to pay Base Rent
shall be abated for the period of such early possession. All other terms of this
Sublease (including but not limited to the obligations to pay Sublessee's Share
of Common Area Operating Expenses, Real Property Taxes and Insurance premiums
and to maintain the Premises) shall, however, be in effect during such period.
Any such early possession shall not affect the Expiration Date.
3.2 DELAY IN COMMENCEMENT. Sublessor agrees to use its best
commercially reasonable efforts to deliver possession of the Premises by the
Commencement Date. If, despite said efforts, Sublessor is unable to deliver
possession as agreed, the rights and obligations of Sublessor and Sublessee
shall be as set forth in Paragraph 3.3 of the Master Lease (as modified by
Paragraph 7.3 of this Sublease).
3.4 SUBLESSEE COMPLIANCE. Sublessor shall not be required to
tender possession of the Premises to Sublessee until Sublessee complies with its
obligation to provide evidence of insurance. Pending delivery of such evidence,
Sublessee shall be required to perform all of its obligations under this
Sublease from and after the Start Date, including the payment of Rent,
notwithstanding Sublessor's election to withhold possession pending receipt of
such evidence of insurance. Further, if Sublessee is required to perform any
other conditions prior to or concurrent with the Start Date, the Start Date
shall occur but Sublessor may elect to withhold possession until such conditions
are satisfied.
4. RENT AND OTHER CHARGES.
4.1 RENT DEFINED. All monetary obligations of Sublessee to
Sublessor under the terms of this Sublease (except for the Security Deposit) are
deemed to be rent ("RENT"). Rent shall be payable in lawful money of the United
States to Sublessor at the address stated herein or to such other persons or at
such other places as Sublessor may designate in writing.
4.2 COMMON AREA OPERATING EXPENSES. Sublessee shall pay to during
the term hereof, in addition to the Base Rent, Sublessee's Share of all Common
Area Operating Expenses, as hereinafter defined, during each calendar year of
the term of this Sublease, in accordance with the following provisions:
(a) "COMMON AREA OPERATING EXPENSES" are defined, for
purposes of this Sublease, as all costs incurred by Sublessor relating to the
operation of the Project, including, but not limited to, the following:
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(i) The operation, repair and maintenance, in
neat, clean, good order and condition, but not the replacement (see subparagraph
(e)), of the following:
(aa) The Common Areas and Common Area
improvements, including parking areas, loading and unloading areas, trash areas,
roadways, parkways, walkways, driveways, landscaped areas, bumpers, irrigation
systems, Common Area lighting facilities, fences and gates, elevators, roofs,
and roof drainage systems.
(bb) Exterior signs and any tenant
directories.
(cc) Any fire sprinkler systems.
(ii) The cost of water, gas, electricity and
telephone to service the Common Areas and any utilities not separately metered.
(iii) Trash disposal, pest control services,
property management, security services, and the costs of any environmental
inspections.
(iv) Reserves set aside for maintenance and repair
of Common Areas.
(v) Real Property Taxes.
(vi) Insurance premiums.
(vii) Any deductible portion of an insured loss
concerning the Building or the Common Areas.
(b) The inclusion of the improvements, facilities and
services set forth in Subparagraph 4.2(a) shall not be deemed to impose an
obligation upon Sublessor to either have said improvements or facilities or to
provide those services unless Sublessor already provides the services, or
Sublessor has agreed elsewhere in this Sublease to provide the same or some of
them.
(c) Sublessee's Share of Common Area Operating Expenses
shall be payable by Sublessee within 10 days after a reasonably detailed
statement of actual expenses in presented to Sublessee. At Sublessor's option,
however, an amount may be estimated by Sublessor from time to time of
Sublessee's Share of annual Common Area Operating Expenses and the same shall be
payable monthly or quarterly, as Sublessor shall designate, during each 12 month
period of the Sublease term, on the same day as the Base Rent is due hereunder.
Sublessor shall deliver to Sublessee within 60 days after the expiration of each
calendar year a reasonably detailed statement showing Sublessee's Share of the
actual Common Area Operating Expenses incurred during the preceding year. If
Sublessee's payments under this Paragraph 4.2(c) during the preceding year
exceed Sublessee's Share as indicated on such statement, Sublessor shall credit
the amount of such overpayment against Sublessee's Share of Common Area
Operating Expenses next becoming due. If Sublessee's payment under this
Paragraph 4.2(c) during the preceding year were less than Sublessee's Share as
indicated on such statement, Sublessee shall pay to Sublessor the amount of the
deficiency within 10 days after delivery by Sublessor to Sublessee of the
statement.
4.3 UTILITIES. Sublessee shall pay for all water, gas, heat,
light, power, telephone, trash disposal and other utilities and services
supplied to the Premises, together with any taxes thereon. Notwithstanding the
provisions of Paragraph 4.2, if at any time in Sublessor's sole judgment,
Sublessor determines that Sublessee is using a disproportionate amount of water,
electricity or other commonly metered utilities, or that Sublessee is generating
such a large volume of trash as to require an increase in the size of the
dumpster and/or an increase in the number of times per month that the dumpster
is emptied, then Sublessor may increase Sublessee's Base Rent by an amount equal
to such increased costs.
5. SECURITY DEPOSIT. The rights and obligations of Sublessor and Sublessee
as to said Security Deposit shall be as set forth in Paragraph 5 of the Master
Lease (as modified by Paragraph 7.3 of this Sublease).
6. AGREED USE. The Premises shall be used and occupied only for OFFICE AND
WAREHOUSE FOR STORAGE OF RETAIL RELATED CRYSTAL AND LASER GOODS and for no other
purpose.
7. MASTER LEASE.
7.1 Sublessor is the lessee of the Premises by virtue of a lease,
hereinafter the "Master Lease", wherin XXXXXXX XXXXXXX LLC is the lessor,
hereinafter the "Master Lessor".
7.2 This Sublease is and shall be at all times subject and
subordinate to the Master Lease.
7.3 The terms, conditions and respective obligations of Sublessor
and Sublessee to each other under this Sublease shall be the terms and
conditions of the Master Lease except for those provisions of the Master Lease
which are directly contradicted by this Sublease in which event the terms of
this Sublease document shall control over the Master Lease. Therefore, for the
purposes of this Sublease, wherever in the Master Lease the word "Lessor" is
used it shall be deemed to mean the Sublessor herein and wherever in the Master
Lease the word "Lessee" is used it shall be deemed to mean the Sublessee herein.
7.4 During the term of this Sublease and for all periods subsequent
for obligations which have arisen prior to the termination of this Sublease,
Sublessee does hereby expressly assume and agree to perform and comply with, for
the benefit of Sublessor and Master Lessor, each and every obligation of
Sublessor under the Master Lease except for the following paragraphs which are
excluded therefrom: N/A .
7.5 The obligations that Sublesee has assumed under paragraph 7.4
hereof are hereinafter referred to as the "SUBLESSEE'S ASSUMED OBLIGATIONS". The
obligations that sublessee has not assumed under paragraph 7.4 hereof are
hereinafter referred to as the "SUBLESSOR'S REMAINING OBLIGATIONS".
7.6 Sublessee shall hold Sublessor free and harmless from all
liability, judgments, costs, damages, claims or demands, including reasonable
attorneys fees, arising out of Sublessee's failure to comply with or perform
Sublessee's Assumed Obligations.
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7.7 Sublessor agrees to maintain the Master Lease during the entire
term of this Sublease, subject, however, to any earlier termination of the
Master Lease without the fault of the Sublessor, and to comply with or perform
Sublessor's Remaining Obligations and to hold Sublessee free and harmless from
all liability, judgments, costs, damages, claims or demands arising out of
Sublessor's failure to comply with or perform Sublessor's Remaining Obligations.
7.8 Sublessor represents to Sublessee that the Master Lease is in
full force and effect and that no default exists on the part of any Party to the
Master Lease.
8. ASSIGNMENT OF SUBLEASE AND DEFAULT.
8.1 Sublessor hereby assigns and transfers to Master Lessor the
Sublessor's interest in this Sublease, subject however to the provisions of
Paragraph 8.2 hereof.
8.2 Master Lessor, by executing this document, agrees that until a
Default shall occur in the performance of Sublessor's Obligations under the
Master Lease, that Sublessor may receive, collect and enjoy the Rent accruing
under this Sublease. However, if Sublessor shall Default in the performance of
its obligations to Master Lessor then Master Lessor may, at its option, receive
and collect, directly from Sublessee, all Rent owing and to be owed under this
Sublease. Master Lessor shall not, by reason of this assignment of the Sublease
nor by reason of the collection of the Rent from the Sublessee, be deemed liable
to Sublessee for any failure of the Sublessor to perform and comply with
Sublessor's Remaining Obligations.
8.3 Sublessor hereby irrevocably authorizes and directs Sublessee
upon recept of any written notice from the Master Lessor stating that a Default
exists in the performance of Sublessor's obligations under the Master Lease, to
pay the Master Lessor the Rent due and to become due under the Sublease.
Sublessor agrees that the Sublessee shall have the right to rely upon any such
statement and request from Master Lesor, and that Sublessee shall pay such Rent
to Master Lessor without any obligation or right to inquire as to whether such
Default exists and notwithstanding any notice from or claim from Sublessor to
the contrary and Seblessor shall have no right or claim against Sublessee for
any such Rent so paid by Sublessee.
8.4 No changes or modifications shall be made to this Sublease
without the consent of Master Lessor.
9. CONSENT OF MASTER LESSOR.
9.1 In the event that the Master Lease requires that Sublessor
obtain the consent of Master Lessor to any subletting by Sublessor then, this
Sublease shall not be effective unless, within 10 days of the date hereof,
Master Lessor signs this Sublease thereby giving its consent to this Subletting.
9.2 In the event that the obligations of the Sublessor under the
Master Lease have been guaranteed by third parties then neither this Sublease,
nor the Master Lessor's consent, shall be effective unless, within 10 days of
the date hereof, said guarantors sigh this Sublease thereby giving their consent
to this Sublease.
9.3 In the event that Master Lessor does give such consent then:
(a) Such consent shall not release Sublessor of its
obligations or alter the primary liability of Sublessor to pay the Rent and
perform and comply with all of the obligations of Sublessor to be performed
under the Master Lease.
(b) The acceptance of Rent by Master Lessor from Sublessee
or any one else liable under the Master Lease shall not be deemed a waiver by
Master Lessor of any provisions of the Master Lease.
(c) The consent to this Sublease shall not constitute a
consent to any subsequent subletting or assignment.
(d) In the event of any Default of Sublessor under the
Master Lease, Master Lessor may proceed directly against Sublessor, any
guarantors or any one else liable under the Master Lease or this Sublease
without first exhausting Master Lessor's remedies against any other person or
entity liable thereon to Master Lessor.
(e) Master Lessor may consent to subsequent sublettings
and assignments of the Master Lease or this Sublease or any amendments or
modifications thereto without notifying Sublessor or any one else liable under
the Master Lease and without obtaining their consent and such action shall not
relieve such persons from liability.
(f) In the event that Sublessor shall Default in its
obligations under the Master Lease, then Master Lessor, at its option and
without being obligated to do so, may require Sublessee to attorn to Master
Lessor in which event Master Lessor shall undertake the obligations of Sublessor
under this Sublease from the time of the exercise of said option to termination
of this Sublease but Master Lessor shall not be liable for any prepaid Rent nor
any Security Deposit paid by Sublessee, nor shall Master Lessor be liable for
any other Defaults of the Sublessor under the Sublease.
9.4 The signatures of the Master Lessor and any Guarantors of
Sublessor at the end of this document shall constitute their consent to the
terms of this Sublease.
9.5 Master Lessor acknowledges that, to the best of Master Lessor's
knowledge, no Default presently exists under the Master Lease of obligations to
be performed by Sublessor and that the Master Lease is in full force and effect.
9.6 In the event that Sublessor Defaults under its obligations to
be performed under the Master Lease by Sublessor, Master Lessor agrees to
deliver to Sublessee a copy of any such notice of default. Sublessee shall have
the right to cure any Default of Sublessor described in any notice of default
within ten days after service of such notice of default on Sublessee. If such
Default is cured by Sublessee then Sublessee shall have the right of
reimbursement and offset from and against Sublessor.
10. ADDITIONAL BROKERS COMMISSIONS.
10.1 Sublessor agrees that if Sublessee exercises any option or
right of first refusal as granted by Sublessor herein, or any option or right
substantially similar thereto, either to extend the term of this Sublease, to
renew this Sublease, to purchase the Premises, or to lease or purchase adjacent
property which Sublessor may own or in which Sublessor has an interest, then
Sublessor shall pay to Broker a fee in accordance with the schedule of Broker in
effect at the time of the execution of this Sublease. Notwithstanding the
foregoing, Sublessor's obligation under this Paragraph is limited to a
transaction in which Sublessor is acting as a Sublessor, lessor or seller.
10.2 Master Lessor agrees that if Sublessee shall exercise any
option or right of first refusal granted to Sublessee by Master Lessor in
connection with this Sublease, or any option or right substantially similar
thereto, either to extend or renew the Master Lease, to purchase
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the Premises or any part thereof, or to lease or purchase adjacent property
which Master Lessor may own or in which Master Lessor has an Interest, or if
Broker is the procuring cause of any other lease or sale entered into between
Sublessee and Master Lessor pertaining to the Premises, any part thereof, or any
adjacent property which Master Lessor owns or in which it has an interest, then
as to any of said transactions, Master Lessor shall pay to Broker a fee, in
cash, in accordance with the schedule of Broker in effect at the time of the
execution of this Sublease.
10.3 Any fee due from Sublessor or Master Lessor hereunder shall be
due and payable upon the exercise of any option to extend or renew, upon the
execution of any new lease, or, in the event of a purchase, at the close of
escrow.
10.4 Any transferee of Sublessor's Interest in this Sublease, or of
Master Lessor's interest in the Master Lease, by accepting an assignment
thereof, shall be deemed to have assumed the respective obligations of Sublessor
or Master Lessor under this Paragraph 10. Broker shall be deemed to be a
third-party beneficiary of this paragraph 10.
11. REPRESENTATIONS AND INDEMNITIES OF BROKER RELATIONSHIPS. The Parties
each represent and warrant to the other that it has had no dealings with any
person, firm, broker or finder (other than the Brokers, if any) in connection
with this Sublease, and that no one other than said named Brokers is entitled to
any commission or finder's fee in connection herewith. Sublessee and Sublessor
do each hereby agree to indemnify, protect, defend and hold the other harmless
from and against liability for compensation or charges which may be claimed by
any such unnamed broker, finder or other similar party by reason of any dealings
or actions of the indemnifying Party, including any costs, expenses, attorneys'
fees reasonably incurred with respect thereto.
12. ATTORNEY'S FEES. If any Party or Broker brings an action or proceeding
involving the Premises whether founded in tort, contract or equity, or to
declare rights hereunder, the Prevailing Party (as hereafter defined) in any
such proceeding, action, or appeal thereon, shall be entitled to reasonable
attorneys' fees. Such fees may be awarded in the same suit or recovered in a
separate suit, whether or not such action or proceeding is pursued to decision
or judgment. The term, "PREVAILING PARTY" shall include, without limitation, a
Party or Broker who substantially obtains or defeats the relief sought, as the
case may be, whether by compromise, settlement, judgment, or the abandonment by
the other Party or Broker of its claim or defense. The attorneys' fees award
shall not be computed in accordance with any court fee schedule, but shall be
such as to fully reimburse all attorneys' fees reasonably incurred. In addition,
Sublessor shall be entitled to attorneys' fees, costs and expenses incurred in
the preparation and service of notices of Default and consultations in
connection therewith, whether or not a legal action is subsequently commenced in
connection with such Default or resulting Breach ($200 is a reasonable minimum
per occurrence for such services and consultation).
13. NO PRIOR OR OTHER AGREEMENTS; BROKER DISCLAIMER. This Sublease contains
all agreements between the Parties with respect to any matter mentioned herein,
and no other prior or contemporaneous agreement or understanding shall be
effective. Sublessor and Sublessee each represents and warrants to the Brokers
that it has made, and is relying solely upon, its own investigation as to the
nature, quality, character and financial responsibility of the other Party to
this Sublease and as to the use, nature, quality and character of the Premises.
Brokers have no responsibility with respect thereto or with respect to any
default or breach hereof by either Party. The liability (including court costs
and attorneys' fees), of any Broker with respect to negotiation, execution,
delivery or performance by either Sublessor or Sublessee under this Sublease or
any amendment or modification hereto shall be limited to an amount up to the fee
received by such Broker pursuant to this Sublease; provided, however, that the
foregoing limitation on each Broker's liability shall not be applicable to any
gross negligence or willful misconduct or such Broker.
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY REAL ESTATE BROKER AS TO THE LEGAL
SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS SUBLEASE OR THE
TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVISE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS
SUBLEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION
OF THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE
POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PROPERTY, THE
STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, AND THE
SUITABILITY OF THE PREMISES FOR SUBLESSEE'S INTENDED USE.
WARNING: IF THE SUBJECT PROPERTY IS LOCATED IN A STATE OTHER THAN CALIFORNIA,
CERTAIN PROVISIONS OF THE SUBLEASE MAY NEED TO BE REVISED TO COMPLY WITH THE
LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED.
Executed at: ______________________ Executed at: COLDWELL BANKER LAS VEGAS
----------------------------
on: _____________________________ on: 12-21-2001
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By SUBLESSOR: By SUBLESSEE:
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Initials Page 6 of 8 Initials
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By: _____________________________ By:__________________________________
Name Printed: ___________________ Name Printed: _______________________
Title: __________________________ Title: ______________________________
By: _____________________________ By:__________________________________
Name Printed: ___________________ Name Printed: _______________________
Title: __________________________ Title: ______________________________
Address: ________________________ Address: ____________________________
_________________________________ _____________________________________
Telephone/Facsimile: ____________ Telephone/Facsimile: ________________
Federal ID No. __________________ Federal ID No. ______________________
BROKER: BROKER:
--------------------------------- -------------------------------------
--------------------------------- -------------------------------------
Attn: ___________________________ Atten: ______________________________
Title: __________________________ Title: ______________________________
Address: ________________________ Address: ____________________________
_________________________________ _____________________________________
Telephone/Facsimile: ____________ Telephone/Facsimile: ________________
Federal ID No. __________________ Federal ID No. ______________________
Consent to the above Sublease is hereby given.
Executed at: ____________________ Executed at: ________________________
on: _____________________________ on: _________________________________
By MASTER LESSOR: By GUARANTOR(S):
_________________________________ By: _________________________________
_________________________________ Name Printed: _______________________
Address: ____________________________
By: _____________________________ _____________________________________
Name Printed: ___________________
Title: __________________________
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Initials Initials
NOTE: These forms are often modified to meet changing requirements of law and
needs of the industry. Always write or call to make sure you are utilizing the
most current form: AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, 000 Xx. Xxxxxx
Xx., Xxxxx 000, Xxx Xxxxxxx, XX 00000. (000) 000-0000.
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Initials Initials
AMENDMENT TO SUBLEASE AGREEMENT
Amendment to the Sublease dated the 13th of December, 2001 by and between
Xxxxxxx & Xxxxxxx, LLC., as "Landlord", Western Window & Door Corporation, as
"Sublessor" and Crystalix USA Group, as "Sublessee".
Whereas, "Sublessee" entered into a Sublease Agreement with "Sublessor",
dated December 13, 2001, located at 0000 X. Xxxxxxx Xx. #000, Xxx Xxxxx, XX
00000, consisting of approximately 1,680 square feet.
NOW, THEREFORE, in consideration of the mutual benefits herein contained,
the parties hereto do hereby agree as follows:
Section 1.04. Property
The Property shall now be suite #114, increasing the total square footage
of the Tenant to 2,967 square feet consisting of 1,000 square feet of
office space and 1,967 square feet of
warehouse space.
Section 1.12. Rent and other Charges
Base rent for suite 114 shall be Two Thousand Two Hundred Eighty Dollars
and Twenty Cents ($2,280.20), and shall be increased based on the
Commencement Date of the original lease at the rate of the CPI per annum.
Other Periodic Payments: Tenant's Pro Rata share of Common Area Expenses
shall be 7% of total building square footage.
All other terms, conditions and covenants of the original Lease
Agreement shall remain the same and in full force and effect.
Dated this 19TH day of March, 2002.
SUBLESSOR:
By: /s/ XXXXXX XXXXXX Date: 3/19/02
------------------------------------ ----------------------
Xxxxxx Xxxxxx
It's:
SUBLESSEE:
By: /s/ XXXXX XXX XXXXX Date: 3-14-02
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Xxxxx Xxx Xxxxx
It's
LANDLORD
By: /s/ XXXX XXXXXXXX Date: 3-22-02
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Xxxx Xxxxxxxx
Xxxxxxx & Xxxxxxx LLC
