EXHIBIT 10.9
WESTFIELD PROMENADE
CITY OF WOODLAND HILLS
COUNTY OF LOS ANGELES
STATE OF CALIFORNIA
ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT
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THIS ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT (hereinafter the
"Agreement") is made and entered into as of the _________ day of
________________, 2006, by and among XXXXX XXXXXXXX an individual ("Assignor"),
UWINK, INC., a Utah corporation ("Assignee"), and PROMENADE LP, a Delaware
limited partnership ("Landlord").
WITNESSETH:
WHEREAS, by written Shopping Center Lease dated February 3, 2006 (which
lease and any and all amendments, assignments and modifications thereof are
hereinafter called the "Lease"), Landlord or its predecessor-in-interest did
lease unto Assignor or its predecessor-in-interest approximately 5,340 square
feet of space known as Tenant SPACE NO. 2310 (hereinafter called the "Premises")
in WESTFIELD PROMENADE, located in Woodland Hills, California; and
WHEREAS, Assignor desires to assign all of its right, title and
interest in and to the Lease to Assignee, Assignee desires to accept and assume
the same, and Landlord consents to the intended assignment and assumption on and
under the terms, conditions and covenants hereof;
NOW, THEREFORE, for and in consideration of the mutual covenants, terms
and conditions herein contained, and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties do hereby agree as follows.
1. ASSIGNMENT.
Assignor hereby sells, assigns, transfers and sets over to
Assignee all of its right, title and interest in and to the Lease. Assignor
shall remain liable to Landlord for the performance of the terms, provisions,
covenants, conditions and agreements of the Lease that arise subsequent to the
Effective Date (as hereinafter defined).
2. ACCEPTANCE AND ASSUMPTION.
In consideration of the foregoing assignment and in further
consideration of the execution by Landlord of its consent to the herein
described assignment, Assignee hereby accepts the foregoing Assignment and
hereby assumes and agrees to be bound by and to perform each and all of the
terms, provisions, covenants, conditions and agreements to be performed by
Tenant pursuant to the Lease.
Assignee specifically agrees and understands that the Lease
does make provision, among other things, for the following:
(a) That Tenant's trade name shall be "UWINK MEDIA BISTRO" and
shall remain as such unless changed with the authorization and prior approval of
Landlord.
(b) That the Lease provides a use clause limiting the use of
Tenant shall only use the Premises for the operation of a full service
(sit-down) restaurant, including the sale of alcoholic beverages for on-Premises
consumption only (provided Tenant complies with applicable laws and regulations,
and obtains and maintains in effect the necessary licenses and additional
insurance as may be required pursuant to this Lease for the sale and serving of
said alcoholic beverages), with categories of food and alcoholic, and
non-alcoholic beverage items offered on the menu substantially in the form as
attached hereto as Exhibit "E;" and as ancillary thereto, Tenant may offer
take-out service for menu items. As incidental thereto Tenant may also sell
bottles of wine featured to customers (provided Tenant complies with applicable
laws and regulations, and obtains and maintains in effect the necessary licenses
and additional insurance as may be required pursuant to this Lease for the sale
and serving of said alcoholic beverages). The Premises shall be used solely for
the use stated above and for no other use or purpose, and for no other use or
purpose.
(c) That the Lease provides for the payment of Minimum Annual
Rental, Percentage Rental and Additional Rent charges as set forth in the Lease.
(d) That the Lease expires on January 31, 2016 and does not
provide for an option to renew the Term of the Lease.
3. EFFECTIVE DATE. The Effective Date of this Agreement shall be April
10, 2006.
4. LANDLORD'S CONSENT.
By its execution hereof, Landlord agrees to and accepts this
Agreement upon the conditions and terms set forth herein. Assignor shall remain
liable to Landlord for the performance of the terms, provisions, covenants,
conditions and agreements of the Lease that arise subsequent to the Effective
Date of this Assignment. Assignee shall be liable for the performance and
compliance with all of the terms, conditions and covenants of the Lease to be
performed by the Tenant thereunder from and after the Effective Date. Unless and
until Landlord shall have executed this Agreement, the same shall be of no
effect, notwithstanding that Landlord may have accepted and may continue to
accept rent or the performance of other obligations by Assignee. The consent
granted herein shall in no event be construed as consent to any further
assignment or subleasing of or under the Lease. The failure or delay of Landlord
in seeking to enforce any provisions of the Lease or this Agreement shall not be
deemed a waiver of rights or remedies that Landlord may have, or a waiver of any
subsequent breach or default of the terms and provisions therein or herein
contained.
Landlord's consent is conditioned upon payment by Assignor of
all Minimum Annual Rental, Percentage Rental and Additional Rent charges due,
including adjustments to estimated charges due under the Lease, through the
Effective Date (notwithstanding that such adjustments may be billed following
the Effective Date).
5. NOTICE ADDRESS. The notice address of Assignee shall be as follows
for all purposes for which notice to Tenant may be required pursuant to the
Lease:
NOTICE ADDRESS BILLING ADDRESS
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U Wink Media Bistro U Wink Media Bistro
12536 Xxxxxxxx 12536 Xxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000 Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Mr. Xxxxx Xxxxxxxx Attention: Mr. Xxxxx Xxxxxxxx
6. ASSIGNMENT FEE. Assignor shall pay to Landlord upon the execution
hereof an assignment fee, as provided for in the Lease, in the amount of Seven
Hundred Fifty Dollars ($750.00) as additional consideration for this Agreement
and to cover Landlord's administrative and processing expenses in connection
with this Agreement.
7. MISCELLANEOUS. Except as amended herein, all terms and conditions of
the Lease shall remain and continue in full force and effect. In case of
inconsistency between the Lease and this Agreement, the later shall govern and
control. This Agreement may be amended, modified or canceled only by an
instrument in writing signed by all parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ASSIGNOR:
____________________________________
XXXXX XXXXXXXX
ASSIGNEE: UWINK, INC.,
a Utah corporation
By__________________________________
Print Name _________________________
Its_________________________________
By__________________________________
Print Name _________________________
Its_________________________________
LANDLORD: PROMENADE LP,
a Delaware limited partnership
By: Westfield America GP LLC,
a Delaware limited liability company,
its General Partner
By: Westfield America Limited Partnership,
a Delaware limited partnership
its Sole Member
By: Westfield America, Inc.,
a Missouri corporation,
its General Partner
By:_________________________________
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