Exhibit 10.9
COMMERCIAL LEASE AND DEPOSIT RECEIPT
DATED: October 18, 1994
RECEIVED
FROM Restoration Hardware, Inc. a California Corporation
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______________________________________________hereinafter referred to as LESSEE,
THE SUM OF $18,600.00 ( Eighteen Thousand Six Hundred Dollars and no/100
------------------------------------------------
(DOLLARS) evidenced by , as a deposit which, upon acceptance of this lease,
shall belong to Lessor and shall be applied as follows:
RECEIVED PAYABLE PRIOR TO
OCCUPANCY
Rent for the period from December 15, 1994 to January 31, 1995 $ 11,100.00 $ 0
Security deposit ..... (SEE TERM & CONDITION #20 SECURITY)......... $ 7,500.00 $ 0
TOTAL AMOUNT....................................................... $ 18,600.00 $ 0
In the event that this lease is not accepted by the Lessor within three (3)
business days, the total amount of $18,600.00 received shall be refunded.
----------
Lessee hereby offers to lease from Lessor the premises situated in the
City of Corte Madera
County of Marin State of California, described as: 15 Xxxx Service Road,
Suite "J"
Upon the following TERMS and CONDITIONS:
1. TERM: The term hereof shall commence on December 15, 1994 and expire on
-----------------
November 30, 1999
-----------------
2. RENT: The total rent shall be $465,200.00 payable as follows:
December 15, 1994 through November 30, 1995: $7,400.00 per month * Restoration Hardware's
December 1, 1995 through November 30, 1996: $7,600.00 per month rent will be adjusted
December 1, 1996 through November 30, 1997: $7,800.00 per month pro-rata if there should
December 1, 1997 through November 30, 1998: $8,025.00 per month be a delay in the previous
December 1, 1998 through November 30, 1999: $8,250.00 per month tenant's departure from the
building beyond December 15
1994.
Rental payments not received prior to the tenth of each month shall bear a late
charge of (10%) ten percent.
All rents shall be paid to Lessor or his authorized agent, at the following
address:
Wynwood Agency of California, Inc.
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxxxxx 00000
(Lessee will receive payment book.)
or at such other places as may be designated by Lessor from time
to time
3. USE: The premises are to be used only for the operation of administrative
offices/distribution warehouse, and for no other purpose, without prior written
consent of Lessor.
4. USES PROHIBITED: Lessee shall not use any portion of the premises for
purposes other than those specified hereinabove, and no use shall be made or
permitted to be made upon the premises, nor acts done, which will increase the
existing rate of insurance upon the property, or cause cancellation of insurance
policies covering said property. Lessee shall not permit or create any toxic
waste on the premises. Lessee shall not conduct or permit any sale by auction on
the premises.
5. SUBLETTING AND ASSIGNMENT: Lessee shall not sublet any portion of the
premises. Lessee shall not assign this lease without prior written consent of
the Lessor, which shall not be unreasonably withheld. Assignment without consent
or subletting shall be void and, at the option of the Lessor, may terminate this
lease. Right of assignment is for entire space. Assignee does not have the right
of assignment.
6. ORDINANCES AND STATUTES US: Lessee shall comply with all statutes, ordinances
and requirements of all municipal, state and federal authorities now in force,
or which may hereafter be in force, pertaining to the premises, occasioned by or
affecting the use thereof by Lessee. The commencement or pendency of any state
or federal court abatement proceeding affecting the use of the premises shall at
the option of the Lessor, be deemed a breach hereof.
DATED: 10-20-94 DATED: 10/23/94
---------------------------- -------------------------
SIGN [SIGNATURE ILLEGIBLE] SIGN [SIGNATURE ILLEGIBLE] Lessor
------------------------------Lessor ---------------------------
LEASE FORMS 9408 PAGE ONE OF FOUR
7. MAINTENANCE, REPAIRS, ALTERATIONS: Lessee acknowledges that the premises are
in good order and repair, unless otherwise indicated herein. Lessee shall at his
own expense and at all times, maintain the premises in good and safe condition,
including plate glass, electrical wiring, plumbing and heating installations and
any other system or equipment upon the premises and shall surrender the same, at
termination hereof, in as good condition as received, normal wear and tear
excepted. Lessee shall be responsible for all repairs required, excepting the
roof and exterior structural wall surfaces (except glass which shall be the
Lessee's responsibility) which shall be maintained by Lessor.
8. ENTRY AND INSPECTION: Lessee shall permit Lessor or Lessor's agent to enter
upon the premises at reasonable times and upon reasonable notice, for the
purpose of inspecting the same, and will permit Lessor at any time within sixty
(60) days prior to the expiration of this lease, to place upon the premises any
usual "To Let" or "For Lease" signs, and permit persons desiring to lease the
same to inspect the premises thereafter.
9. INDEMNIFICATION OF LESSOR: Lessor shall not be liable for any damage or
injury to Lessee, or any other person, or to any property, occurring on the
demised premises or any part thereof, and Lessee agrees to hold Lessor harmless
from any claims for damages, no matter how caused.
10. POSSESSION: If Lessor is unable to deliver possession of the premises at the
commencement hereof, Lessor shall not be liable for any damage caused thereby,
nor shall this lease be void or voidable, but Lessee shall not be liable for any
rent until possession is delivered. Lessee may terminate this lease if
possession is not delivered within three (3) days of the commencement of the
term hereof.
11. INSURANCE: Lessee, at his expense, shall maintain plate glass, public
liability and property damage insurance insuring Lessee and Lessor with minimum
coverage as follows: $1,000,000 Combined Single Limit of Bodily Injury and
Property Damage Liability.
Lessee shall provide Lessor with a Certificate of Insurance showing Lessor
as additional insured. The Certificate shall provide for a ten-day written
notice to Lessor in the event of cancellation or material change of coverage.
To the maximum extent permitted by insurance policies which may be owned by
Lessor or Lessee, Lessee and Lessor, for the benefit of each other, waive any
and all rights of subrogation which might otherwise exist.
12. UTILITIES: Lessee agrees that he shall be responsible for the payment of all
utilities, gas, electricity, heat and other services delivered to the premises.
13. SIGNS: Lessor reserves the exclusive right to the roof, side and rear walls
of the Premises. Lessee shall not construct any projecting sign or awning.
To assure uniformity of appearance, Lessor shall exercise control over
size, type, color and location of all signs visible from exterior and subject to
appropriate governmental approval.
All signs will require Lessors written consent.
14. ABANDONMENT OF PREMISES: Lessee shall not vacate or abandon the premises at
any time during the term hereof, and if Lessee shall abandon or vacate the
premises, or be dispossessed by process of law, or otherwise, any personal
property belonging to Lessee left upon the premises shall be deemed to be
abandoned, at the option of Lessor.
15. CONDEMNATION: If any part of the premises shall be taken or condemned for
public use, and a part thereof remains which is susceptible of occupation
hereunder, this lease shall, as to the part taken, terminate as of the date the
condemnor acquires possession, and thereafter Lessee shall be required to pay
such proportion of the rent for the remaining term as the value of the premises
remaining bears to the total value of the premises at the date of condemnation;
provided however, that Lessor may at his option, terminate this lease as of the
date the condemnor acquires possession. In the event that the demised premises
are condemned in whole, or that such portion is condemned that the remainder is
not susceptible for use hereunder, this lease shall terminate upon the date upon
which the condemnor acquires possession. All sums which may be payable on
account of any condemnation shall belong to the Lessor, and Lessee shall not be
entitled to any part thereof, provided however, that Lessee shall be entitled to
retain any amount awarded to him for his trade fixtures or moving expenses.
16. TRADE FIXTURES: Any and all improvements made to the premises during the
term hereof shall belong to the Lessor, except trade fixtures of the Lessee.
Lessee may, upon termination hereof, remove all his trade fixtures, but shall
repair or pay for all repairs necessary for damages to the premises occasioned
by removal.
17. DESTRUCTION OF PREMISES: In the event of a partial destruction of the
premises during the term hereof, from any cause, Lessor shall forthwith repair
the same, provided that such repairs can be made within sixty (60) days under
existing governmental laws and regulations, but such partial destruction shall
not terminate this lease, except that Lessee shall be entitled to a
proportionate reduction of rent while such repairs are being made, based upon
the extent to which the making of such repairs shall interfere with the business
of Lessee on the premises. If such repairs cannot be made within said sixty (60)
days, Lessor, at his option, may make the same within a reasonable time, this
lease continuing in effect with the rent proportionately abated as aforesaid,
and in the event that Lessor shall not elect to make such repairs which cannot
be made within sixty (60) days, this lease may be terminated at the option of
either party.
In the event that the building in which the demised premises may be
situated is destroyed to an extent of not less than one-third of the replacement
costs thereof. Lessor may elect to terminate this lease whether the demised
premises be injured or not. A total destruction of the building in which the
premises may be situated shall terminate this lease.
In the event of any dispute between Lessor and Lessee with respect to the
provisions hereof, the matter shall be settled by arbitration in such a manner
as the parties may agree upon, or if they cannot agree, in accordance with the
rules of the American Arbitration Association.
DATED 10-20-94 DATE 10/21/94
---------------------------- --------------------------
SIGN [SIGNATURE ILLEGIBLE] SIGN [SIGNATURE ILLEGIBLE]
-----------------------------Lessor ---------------------------Lessor
18. INSOLVENCY: In the event that a receiver shall be appointed to take over the
business of the Lessee, or in the event that the Lessee shall make a general
assignment for the benefit of creditors, or Lessee shall take or suffer any
action under any insolvency or bankruptcy act, the same shall constitute breach
of this lease by Lessee.
19. REMEDIES OF OWNER ON DEFAULT: In the event of any breach of this lease by
Lessee, Lessor, besides other rights and remedies he may have, shall have the
immediate right of re-entry and may remove all persons and property from the
premises. Such property may be moved and stored in a public warehouse or
elsewhere at the cost of, and for the account of Lessee. Should Lessor elect to
re-enter, or should he take possession pursuant to legal proceedings or any
notice provided by law, he may either terminate this lease or may from time to
time, without terminating his lease, relet said premises, or any part thereof,
for such term or terms (which may be for a term extending beyond the term of
this lease) and at such rental or rentals and upon such other terms and
conditions as Lessor, in his sole discretion, may deem advisable with the right
to alter or repair the premises upon such reletting. In such event, Lessee shall
be immediately liable to pay to Lessor in addition to any other amounts due
hereunder: (a) the cost and expense of such reletting and such alterations or
repairs, and any amount by which the rent reserved herein for the period of such
reletting, but not beyond the term hereof, exceeds the amount agreed to be paid
as rent for such period; or: (b) at the option of the Lessor, rents received by
Lessor from such reletting shall be applied first to the repayment of
Indebtedness other than rent due hereunder, second to costs and expenses of
reletting and alterations or repairs, and third to the payment of rent due and
unpaid hereunder, and the residue, if any, shall be held by Lessor and applied
in payment of future rent as the same may become due and payable. Lessee shall
be credited only with rent actually received by Lessor. Lessee shall, in such
event, pay any deficiency between the amount due from Lessee to Lessor and the
amount credited.
No such re-entry or taking possession by Lessor shall be construed as an
election to terminate this lease unless written notice of such intention is
given, or unless termination be decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination, Lessor may at any time
thereafter elect to terminate this lease on account of such previous breach.
Should Lessor at any time terminate this lease for any breach, in addition to
any other remedy he may have, he may recover from Lessee all damages he may
incur by reason of such breach, including the cost of recovering the premises,
and including the worth at the time of such termination, or at the time of an
award if suit be instituted to enforce this provision, of the amount by which
the unpaid rent for the balance of the term exceeds the amount of the rental
loss for the balance of the term which the lessee proves could be reasonably
avoided.
20. SECURITY: The security deposit set forth above, if any, shall secure the
performance of the Lessee's obligations hereunder. Lessor may, but shall be
obligated to, apply all or portions of said deposit on account of Lessee's
obligations hereunder. Any balance remaining upon termination shall be returned
to Lessee. Lessee shall have the right to apply the Security Deposit in payment
of the last month's rent.
21. ATTORNEYS FEES: In case suit should be brought for recovery of the premises,
or for any sum due hereunder, or because of any act which may arise out of the
possession of the premises, by either party, the prevailing party shall be
entitled to all costs incurred in connection with such action, including a
reasonable attorney's fee.
22. WAIVER: No failure of Lessor to enforce any term hereof shall be deemed to
be a waiver.
23. NOTICES: Any notice which either party may or is required to give, shall be
given by mailing the same, postage prepaid, certified mail, return receipt
requested, to Lessee at the premises, or Lessor at the address shown below, or
at such other places as may be designated in writing by the parties from time to
time.
24. HOLDING OVER: Any holding over after the expiration of this lease, with the
consent of Lessor, shall be construed as a month-to-month tenancy at a rental of
$9,487.50 (last months rent plus fifteen percent) per month, otherwise in
accordance with the terms hereof, as applicable.
25. TIME. Time of the essence of this lease.
26. HEIRS, ASSIGNS, SUCCESSORS: This lease is binding upon and inures to the
benefit of the heirs, assigns and successors in interest to the parties.
27. TAX INCREASE: In the event there is any increase during any year of the term
of this lease in the City, County or State real estate taxes over and above the
amount of such taxes assessed for the tax year during which the term of this
lease commences, whether because of increased rate or valuation, Lessee shall
pay to Lessor upon presentation of paid tax bills an amount equal to 13% of the
increase in taxes upon the land and building in which the leased premises are
situated. In the event that such taxes are assessed for a tax year extending
beyond the term of the lease, the obligation of Lessee shall be proportionate to
the portion of the lease term included in such year, (initial tax year shall be
1995-1996).
28. PARKING: No permanent spaces are allocated nor overnight parking permitted.
29. STORAGE: No exterior storage of equipment, supplies, garbage or vehicles
permitted.
30. WASTE-QUITE CONDUCT: Lessee shall not permit any wastage of premises nor any
nuisance or other acts which disturbs the normal enjoyment of other tenants.
31. JURY TRIAL WAIVER: LESSOR and LESSEE hereby waive their respective right to
trial by jury of any cause of action, claim, counter-claim or cross-complaint in
any action, proceeding and/or hearing brought by either LESSOR against LESSEE or
LESSEE against LESSOR on any matter whatsoever arising out of, or in any way
connected with, this Lease, the relationship of LESSOR and LESSEE, LESSEE'S use
or occupancy of the Premises, or any claim of injury or damage, or the
enforcement of any remedy under any law, statute, or regulation, emergency or
otherwise, now or hereafter in effect.
32. LESSEE WILL NOT hang, mount or attach anything on the roof, ceiling, beams
or rafters of the premises unless authorized in writing by lessor.
X
SEE ADDENDUM EXHIBIT "A" ATTACHED FOR ADDITIONAL TERMS AND CONDITIONS:-----YES
-----NO
TERM AND CONDITION NUMBER---------THROUGH NUMBER-------------EXHIBIT "A"
ATTACHED DATED----------
10-20-94 10-20-94
DATED------------------------ DATED------------------------
[SIGNATURE ILLEGIBLE] Lessor [SIGNATURE ILLEGIBLE] Lessor
SIGN------------------------- SIGN-------------------------
LEASE FORM 9408 PAGE THREE OF FOUR
ENTIRE AGREEMENT: The foregoing constitutes the entire agreement between the
parties and may be modified only by a writing signed by both parties. The
following Exhibits, if any, have been made a part of this lease before the
parties' execution
hereof Plot Plan Dated October 14, 1994 and Hazardous Materials Disclosure
.........................................................................
...............................................................................
The undersigned Lessee hereby acknowledges receipt of a copy hereof
10/20/94
DATED................................. DATED..................................
[SIGNATURE ILLEGIBLE]
SIGN NAME......................Lessee SIGN NAME........................Lessee
[SIGNATURE ILLEGIBLE]
PRINT NAME.....................Lessee PRINT NAME....... ...............Lessee
..............................Address ................................Address
..................................... .......................................
................................Phone ..................................Phone
ACCEPTANCE
The undersigned Lessor accepts the foregoing offer and agrees to lease the
herein described premises on the terms and conditions herein specified. The
Lessor agrees to pay to Xxxxx & Xxxxx Company , the Agent in this transaction
.......................
upon acceptance herein the sum of $ per agreement
(...................................................DOLLARS) for services
rendered.
The undersigned Lessor hereby acknowledges receipt of a copy hereof
10/20/94
DATED................................. DATED.................................
[SIGNATURE ILLEGIBLE]
SIGN NAME........................Agent SIGN NAME.......................Lessor
Xxxxx Xxxxxxxx X. Xxxx and Sons
PRINT NAME.......................Agent PRINT NAME......................Lessor
X. X. Xxxx - Owner/Manager
000 Xxxxxxxxx Xxxxx, Xxxxx 000 0000 Xxxxxxxxx Xx.
.............................. Address ...............................Address
Xxx Xxxxxx, Xxxxxxxxxx 00000 Suisun CA. 94585
..................................... ......................................
(000) 000-0000 000 000 0000
................................Phone .................................Phone
LEASE FORM 9408 PAGE FOUR OF FOUR
ADDENDUM
EXHIBIT "A"
Dated October 18, 1994
----------------
REFERENCE: "COMMERCIAL LEASE AND DEPOSIT RECEIPT" DATED:
LESSEE: Restoration Hardware, Inc.
LESSOR: X. X. Xxxx
ADDITIONAL TERMS AND CONDITIONS AS FOLLOWS:
32. OPTION: Provided Lessee is not in default of this Lease, Lessee
shall have one (1) option to extend this Lease for one (1) three
(3) year term from December 1, 1999 to November 30, 2002 upon
written notice to Lessor from Lessee, given ninety (90) days
prior to the termination date herein, with all the conditions
remaining the same except for the rent, which shall be as follows
per month:
OPTION PERIOD:
December 1, 1999 through November 30, 2000: $8,500.00 per month
December 1, 2002 through November 30, 2001: $8,750.00 per month
December 1, 2001 through November 30, 2002: $9,000.00 per month
33. FLOOD INSURANCE: Lessee is aware that the Building has flooded in
the past. Lessor has put in a pump station and the City of Corte
Madera has also installed a pump stations plus a barrier has been
put around the property and no flooding has occurred since, but,
it possibly could. Lessee should feel free to discuss this with
the City of Corte Madera. The Building is listed in a flood zone
and Federal Flood Insurance may be available.
34. The premises is separately metered for water usage. Lessor
currently pays all water bills but reserves the right to have
Lessee pay water bills at some future time.
35. Lessee accepts the premises in its "as-is" condition. Premises
shall be delivered clean. Any structural tenant improvements to
premises must be approved by Lessor. All tenant improvements
shall be completed by licensed contractor and in accordance with
all applicable codes.
36. Occupancy date of December 15, 1994 is subject to the current
tenant vacating the premises. Written notice will be provided to
Lessee as to the exact availability date.
37. Lessor and Lessee acknowledges that the broker in this
transaction, Xxxxx & Xxxxx Company, represents both parties and
Lessee and Lessor consent thereto.
DATED: 10-20-94 DATED: 10/20/84
--------------------------- ----------------------------
SIGN /s/ X X Xxxx LESSOR SIGN [SIGNATURE ILLEGIBLE] LESSOR
--------------------------- ----------------------------
LEASE FORM 9408
[PLOT PLAN APPEARS HERE]
DATED:__________________________ DATED: 10-20-94
------------------------------
SIGN____________________________ Lessee SIGN [SIGNATURE ILLEGIBLE] Lessor
Xxxxx & Xxxxx Company
Commercial Real Estate Services
State of California
SALE/LEASE AMERICANS WITH DISABILITIES ACT
AND HAZARDOUS MATERIALS DISCLOSURE
Address: 00 Xxxx Xxxx, Xxxxx X, Xxxxx Xxxxxx, Xxxxxxxxxx
------------------------------------------------------------------------
The United States Congress has enacted the Americans With Disabilities Act.
Among other things, this act is intended to make many business establishments
equally accessible to persons with a variety of disabilities; modifications to
real property may be required. State and local laws also may mandate changes.
The real estate brokers in this transaction are not qualified to advise you as
to what, if any, changes may be required now, or in the future. Owners and
tenants should consult their attorneys and qualified design professionals of
their choices for information regarding these matters. Real estate brokers
cannot determine which attorneys or design professionals have the appropriate
expertise in this area.
Various construction materials may contain items that have been or may be in the
future be determined to be hazardous (toxic) or undesirable and may need to be
specifically treated/handled or removed. For example, some transformers and
other electrical components contain PCB's, and asbestos has been used in the
components such as fire-proofing, heating and cooling systems, air duct
insulation, spray-on and tile acoustical materials, linoleum, floor tiles,
roofing, dry wall and plaster. Due to prior or current uses of the Property or
in the area, the Property may have hazardous or undesirable metals, minerals,
chemicals, hydrocarbons, or biological or radioactive items (including electric
and magnetic fields) in soils, water, building components, above or below-ground
containers or elsewhere in areas that may or may not be accessible or
noticeable. Such items may leak or otherwise be released. Real estate agents
have no expertise in the detection or correction of hazardous or undesirable
items. Expert inspections are necessary. Current or future laws may require
clean up by past, present and/or future owners and/or operators. It is the
responsibility of the Seller/Lessor and Buyer/Tenant to retain qualified experts
to detect and correct such matters and to consult with legal counsel of their
choice to determine what provisions, if any, they may wish to include in
transaction documents regarding the Property.
To the best of Seller/Lessor's knowledge, Seller/Lessor has attached to this
Disclosure copies of all existing surveys and reports known to Seller/Lessor
regarding asbestos and other hazardous materials and undesirable substances
related to the Property. Sellers/Lessors are required under California Health
and Safety Code Section 25915 et seq. to disclose reports and surveys regarding
asbestos to certain persons, including their employees, contractors, co-owners,
purchasers and tenants. Buyers/Tenants have similar disclosure obligations.
Sellers/Lessors and Buyers/Tenants have additional hazardous materials
disclosure responsibilities to each other under California Health and Safety
Code Section 25359.7 and other California laws. Consult your attorney regarding
this matter. Xxxxx & Xxxxx Company is not qualified to assist you in this matter
or provide you with other legal or tax advice.
SELLER/LESSOR BUYER/TENANT
By: [SIGNATURE ILLEGIBLE] By: Xxxxxx X. Xxxxxxxxxxx
----------------------------- ------------------------------
Title:_________________________ Title: Chief Operating Officer
---------------------------
Date: 10-20-94 Date: 10/20/94
-------------------------- ----------------------------
ADDENDUM TO LEASE
DATED 10-18-94
BETWEEN:
Restoration Hardware, Inc., LESSEE
X. X. Xxxx, X. Xxxx & Sons LESSOR
FOR THE PREMISES AT:
00 XXXX XXXXXXX XXXX,
XXXXX "X"
XXXXX XXXXXX, XX.
LESSOR AND LESSEE AGREE THAT THE COMMENCEMENT DATE FOR THE ABOVE MENTIONED
PROPERTY HAS BEEN CHANGED FROM DECEMBER 18, 1994 TO JANUARY 1, 1995.
The money paid by Restoration Hardware for 1/2 of the rent, ($3,700.00) for
December 15, 1994 to December 31, 1994 PER THE LEASE will apply to the term for
February 1, 1995 to February 14, 1995.
Restoration Hardware will pay the balance of the February rent ($3,700.00) on
February 15, 1995.
All other terms and conditions of the lease dated 10-18-94 to remain the same.
The lease will expire on 11-30-99.
This agreement is not valid unless both Lessee & Lessor sign & date below.
SIGNED AND AGREED TO:
/s/ X. X. Xxxx 11-21-94 /s/ Xxxxxx Xxxxxxxxxxx 11-17-94
------------------------------- -----------------------------------
LESSOR DATE LESSEE DATE
X. X. Xxxx Xxxxxx Xxxxxxxxxxx
X. Xxxx & Sons Restoration Hardware, Inc.,
