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EXHIBIT 10.4.16
COMMERCIAL LEASE
1. PARTIES.
(a) This Lease is made and entered into as of this day of June, 1998 by
and between Xxxxxx Xxxxxx, a single man (hereinafter referred to as "Landlord")
and Easyriders, Inc., a Corporation or a corporate affiliate of Easyriders, Inc.
(hereinafter referred to as "Tenant").
2. PREMISES.
(a) Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, on the terms and conditions hereinafter set forth, that certain real
property and the building and improvements located thereon situated in the City
of Xxxxxx Xxxxx, Xxxxxx xx Xxx Xxxxxxx, Xxxxx xx Xxxxxxxxxx, commonly known as
00000 Xxxxxxx Xxxxx, and described as Xxx 00 xx Xxxxx 0 xx Xxxxx 0000 as per map
recorded in book 104, pages 79-90 in the office of the County recorder of said
County. (Said real property is hereinafter called the "Premises").
3. TERM.
(a) The term of this lease shall be for 5 years, commencing on June,
1998, and ending on June , 2003 unless sooner terminated as hereinafter
provided.
4. RENT.
(a) Tenant shall pay to Landlord as rent for the Premises the following
sums per month, in advance on the first day of each month during the term of
this Lease. During the first year of the term of this Lease, a base rent in the
sum of , ($ ) dollars per month, as the minimum monthly rent.
(b) The minimum monthly rent provided for in paragraph 4(a) shall be
subject to adjustment at the commencement of the second year of the term and
each year thereafter, ("the adjustment date") as follows:
(c) The base for computing the adjustment is the "C.P.I." (as used
herein "C.P.I." shall mean the "United States Department of Labor, Bureau of
Labor Statistics Consumer Price Index For All Urban Consumers" for the
metropolitan area in which the respective premises are located), which is in
effect on the date of the commencement of the term ("Beginning Index"). The
Index published most immediately preceding the adjustment date in question
("Extension Index") is to be used in determining the amount of the adjustment.
If the Extension Index has increased over the Beginning Index, the minimum
monthly rent for the following year, (until the next rent adjustment) shall be
set by multiplying the
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minimum monthly rent set forth in paragraph 4(a) by a fraction, the numerator of
which is the Extension Index and denominator of which is the Beginning Index.
(d) In no case shall the minimum monthly rent be less than the monthly
rent in effect immediately prior to the adjustment date then occurring.
(e) On adjustment of the minimum monthly rent as provided in this lease,
the parties shall immediately execute an amendment to this lease stating the new
minimum monthly rent.
(f) If the index is changed so that the base year differs from that in
effect when the term commences, the Index shall be converted in accordance with
the conversion factor published by the United States Department of Labor, Bureau
of Labor Statistics. If the Index is discontinued or revised during the term,
such other government index or computation with which it is replaced shall be
used in order to obtain substantially the same result as would be obtained if
the Index had not been discontinued or revised.
5. USE.
(a) Tenant shall use the Premises only for activities legal under local
ordinances and other applicable laws and regulations and for no other purpose
without the Landlord's prior written consent.
(b) Tenant shall not do, bring or keep anything in or about the Premises
that will cause a cancellation of any Insurance covering the Premises or the
building in which the Premises are located. If the rate of any insurance carried
by the Landlord is increased as a result of Tenant's use, Tenant shall pay to
Landlord within ten (10) days after written demand from Landlord, the amount of
any such increase. Tenant shall comply with all laws, including any and all
environmental regulations, concerning the Premises or Tenant's use of the
Premises, including without limitation, the obligation at Tenant's cost to
alter, maintain, or restore the Premises in compliance and conformity with all
laws relating to the condition, use or occupancy of the Premises by Tenant
during the term of this Lease. Tenant shall not use or permit the use of the
Premises in any manner that will tend to create waste or a nuisance or, if there
shall be more than one tenant of the building containing the Premises, which
shall unreasonably disturb any other tenant.
(c) Tenant hereby accepts the Premises in their condition existing as of
the date that Tenant possess the Premises, subject to all applicable zoning,
municipal, county and state laws, ordinances, regulations governing or
regulating the use of the Premises, including all applicable environmental rules
and regulations, and accepts this Lease subject thereto and to all
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matters disclosed thereby. Tenant hereby acknowledges that neither the Landlord
nor Landlord's agent has made any representation or warranty to Tenant as to the
suitability of the Premises for the conduct of Tenant's business.
6. TAXES.
(a) Real Property Taxes.
Tenant shall pay, prior to delinquency, all real property taxes and
general and special assessments levied and assessed against the Premises during
the term of this Lease as they come due. Landlord shall use its best efforts to
cause the Premises to be separately assessed from other real property owned by
Landlord. If Landlord is unable to obtain such a separate assessment, the
assessor's evaluation based on the building and other improvements that are a
part of the Premises shall be used to determine the real property taxes. If this
evaluation is not available, the parties shall equitably allocate the property
taxes between the building and other improvements that are a part of the
Premises and all buildings and other improvements included in the tax xxxx. In
making the allocation, the parties shall reasonably evaluate the factors to
determine the amount of the real property taxes so that the allocation of the
building and other improvements that are a part of the Premises will not be less
than the ratio of the total number of square feet of the building and other
improvements that are part of the Premises to the total number of square feet in
all buildings and other improvements included in the tax xxxx.
(b) Real property taxes attributable to land in the Premises shall be
determined by the ratio that the total number of square feet in the premises
bears to the total number of square feet of land included in the tax xxxx.
(c) Personal Property Taxes.
Tenant shall pay prior to their delinquency all taxes assessed against
and levied upon the trade fixtures, furnishings, equipment and other personal
property of Tenant contained in the Premises. Tenant shall endeavor to cause
such trade fixtures, furnishings and equipment and all other personal property
to be assessed and billed separately from the property of the Landlord. If any
of Tenant's said personal property shall be assessed with Landlord's property,
Tenant shall pay to Landlord the taxes attributable to Tenant within ten (10)
days after receipt of a written statement from Landlord setting forth the taxes
applicable to Tenant's property.
7. UTILITIES.
(a) Tenant shall make all arrangements and pay for all water, gas, heat,
light, power, telephone and other utility services supplied to the Premises
together with any taxes thereon and for all connection charges. If any such
services are not separately metered to Tenant, the Tenant shall pay a reasonable
proportion, to
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be determined by Landlord, of all charges jointly metered with other premises.
8. MAINTENANCE AND REPAIRS.
(a) Tenant's Obligations:
Subject to the provisions of Article 12, Tenant at Tenant's sole cost
and expense shall keep in good order, condition and repair the Premises and
every part thereof, including, without limitation, all Tenant's personal
property, fixtures, signs, store fronts, plate glass, show windows, doors,
interior walls, interior ceilings, and lighting facilities. Tenant shall also be
responsible for exterior walls, plumbing, roofs, wiring,heating, ventilation,
air conditioning, parking lots, sidewalks, driveways and landscaping, and for
all tenant improvements.
(b) If Tenant fails to perform Tenant's obligations as stated herein,
Landlord may, (but shall not be required to) at its option, enter the Premises,
after ten (10) days prior written notice to Tenant, and put the same in good
order, condition and repair. The costs thereof together with interest thereon at
the rate of ten (10%) percent per annum shall become due and payable as
additional rent to Landlord together with Tenant's next rental installment.
9. TRIPLE NET LEASE.
This is intended to be a "triple net" lease, and Tenant is responsible
for all expenses and costs.
10. ALTERATIONS AND ADDITIONS.
(a) Tenant shall not, without the Landlord's prior written consent, make
any alterations, improvements or additions in or about the Premises except for
non-structural work which does not exceed five thousand dollars ($5,000.00) in
cost. As a condition to giving any such consent, the Landlord may require the
Tenant to remove any such alterations, improvements, or additions at the
expiration of the term, and to restore the Premises to their prior condition by
giving Tenant thirty (30) days written notice prior to the expiration of the
term that Landlord requires Tenant to remove any such alterations, improvements
or additions that Tenant has made to the Premises. If Landlord so elects, Tenant
at its sole cost shall restore the Premises to the condition designated by
Landlord in its election before the last day of the term of this Lease.
(b) Before commencing any work relating to the alterations, additions,
or improvements affecting the Premises, Tenant shall notify Landlord in writing
of the expected date of the commencement of such work so that Landlord can post
and record the appropriate notices of non-responsibility, if applicable, to
protect Landlord from any mechanic's liens, materialman liens, or any other
liens.
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In any event, Tenant shall pay, when due, all claims for labor and materials
furnished to or for Tenant at or for use in the Premises. Tenant shall not
permit any mechanic's liens or materialman's liens to be levied against the
Premises for any labor or material furnished to Tenant or claimed to have been
furnished to Tenant or Tenant's agents or contractors in connection with work of
any character performed or claimed to have been performed on the Premises by or
at the direction of Tenant. Tenant shall have the right to assess the validity
of any such lien if, immediately on demand by Landlord, Tenant procures and
records a lien release bond meeting all state and local requirements of the
jurisdiction in which the Premises are located, and which shall provide for the
payment of any sum that the claimant may recover on the claim (together with
costs of suit, if it is recovered in the action).
(c) Unless the Landlord requires their removal as set forth above, all
alterations, improvements or additions which are made on the Premises by the
Tenant shall become the property of the Landlord and remain upon and be
surrendered with the Premises at the expiration of the term. Notwithstanding the
provisions of this paragraph, Tenant's trade fixtures, furniture, equipment and
other machinery, other than that which is affixed to the Premises so that it
cannot be removed without material or structural damage to the Premises, shall
remain the property of the Tenant and be removed by Tenant at the expiration of
the term of this Lease.
11. INSURANCE: INDEMNITY
(a) Fire Insurance.
Tenant at its cost shall maintain during the term of this Lease on the
Premises a policy or policies of standard fire and extended coverage insurance
to the extent of at least ninety (90%) percent of full replacement value
thereof. Said insurance policies shall be issued in the name of the Landlord and
Tenant, as their interests may appear.
(b) Tenant at its cost shall maintain during the term of this Lease on
all its personal property, Tenant's improvements, and alterations in or about
the Premises, a policy of standard fire and extended coverage insurance, with
vandalism and malicious mischief endorsements, to the extent of their full
replacement value. The proceeds from any such policy shall be used by Tenant for
the replacement of personal property or the restoration of Tenant's improvements
or alterations.
(c) Liability Insurance.
Tenant at its sole cost and expense shall maintain during the term of
this Lease public liability, property damage and products and completed
operations liability insurance, insuring Tenant and Tenant's employees and
authorized representatives against all bodily injury, property damage, personal
injury, and other loss or liability connected with Tenant's maintenance,
occupation and use
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of the Premises under this Lease in amounts not less than $1,000,000.00 per
occurrence, $2,000,000.00 annual aggregate bodily injury and property damage
combined single limit as a result of any accident or incident. Both public
liability insurance and property damage insurance shall insure performance by
Tenant of the indemnity provision of sub-paragraph (e) below, but the limits of
such insurance shall not, however, limit the liability of Tenant hereunder. Both
Landlord and Tenant shall be named as additional insureds, and the policies
shall contain cross-liability endorsements. If Tenant shall fail to procure and
maintain such insurance the Landlord may, but shall not be required to, procure
and maintain same at the expense of Tenant and the cost thereof, together with
interest thereon at the rate of ten (10%) percent per annum, shall become due
and payable as additional rental to Landlord together with Tenant's next rental
installment. Tenant shall deliver copies of said policies to Landlord within ten
(10) days of their issuance, and shall not cancel or modify same without first
providing thirty (30) days notice to Landlord.
In the event that Landlord determines, in Landlord's reasonable
judgement, that the limits of public liability, property damage, or products
liability insurance then carried by Tenant are materially less than the amount
or type of insurance typically carried by owners or tenants of properties
located in the same county in which the Premises are located, which are similar
to and operated for similar business purposes a the Premises, Landlord may elect
to require Tenant to increase the amount of specific coverage, change the type
of policy carried, or both. If Landlord so elects, Tenant shall be notified in
writing of the specific change in policy amount or type required and shall have
30 days after the date of Landlord's notice to effect the change in amount or
type of policy. Unless otherwise agreed by Landlord and Tenant, any adjustment
under this section may be made not more than every year.
(d) Earthquake Insurance.
Tenant at its sole cost and expense shall maintain during the term of
this Lease earthquake insurance insuring the Premises under this Lease for at
least $1,848,000, subject to no more than a 15% deductible. Both Landlord and
Tenant shall be named as additional insureds. If Tenant shall fail to procure
and maintain such insurance the Landlord may, but shall not be required to,
procure and maintain same at the expense of Tenant and the cost thereof,
together with interest thereon at the rate of ten (10%) percent per annum, shall
become due and payable as additional rental to Landlord together with Tenant's
next rental installment. Tenant shall deliver copies of said policies to
Landlord within ten (10) days of their issuance, and shall not cancel or modify
same without first providing thirty (30) days notice to Landlord.
(e) Waiver of Subrogation.
Tenant and Landlord each waives any and all rights of recovery
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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. Each party shall cause each insurance policy obtained by it hereunder
to provide that the insurance company waives all right to recovery by way of
subrogation against either party in connection with any damage covered by any
such policy.
(f) Hold Harmless.
Tenant shall indemnify and hold Landlord harmless from and against any
and all claims arising from Tenant's use or occupancy of the Premises or from
the conduct of its business or from any activity, work, or things which may be
permitted or suffered by Tenant in or about the Premises including all damage,
costs, attorney's fees, expenses and liabilities incurred in the defense of any
claim or action or proceeding arising therefrom. Except for Landlord's willful
or grossly negligent conduct, Tenant hereby assumes all risk of damage to
property or injury to person in or about the Premises from any cause, and Tenant
hereby waives all claims in respect thereof against Landlord.
(g) Exemption of Landlord from Liability.
Except for Landlord's willful or grossly negligent conduct, Tenant
hereby agrees that Landlord shall not be liable for any injury to Tenant's
business or loss of income therefrom or for damage to the goods, wares,
merchandise, or other property of Tenant, Tenant's employees, invitees,
customers or any other person in or about the Premises; nor shall Landlord be
liable for injury to the person of Tenant, Tenant's employees, agents,
contractors, or invitees, 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 such damage results from conditions arising upon the Premises or upon
other portions of the building in which the Premises are a part, or from any
other sources or places. Landlord shall not be liable to Tenant for any damages
arising from any act or neglect of any other tenant, if any, of the building in
which the Premises are located.
12. DAMAGE OR DESTRUCTION
(a) Damage--Insured.
If during the term of this Lease, the Premises and/or the building and
other improvements in which the Premises are located are totally or partially
destroyed rendering the Premises totally or partially inaccessible or unusable,
and such damage or destruction was caused by casualty covered under an insurance
policy required to be maintained hereunder, Landlord shall restore the Premises
and/or the building and other improvements in which
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the Premises are located into substantially the same condition as they were in
immediately before such damage or destruction, provided that the restoration can
be made under the existing laws and can be completed within one hundred and
twenty (120) working days after the date of such destruction or damage. Such
destruction or damage shall not terminate this Lease.
(b) If the restoration cannot be made in said 120 day period, then
within fifteen (15) days after the parties hereto determine that the restoration
cannot be made in the time stated in this paragraph, Tenant may terminate this
Lease immediately by giving notice to the Landlord and the Lease will be deemed
cancelled as of the date of such damage or destruction. If Tenant fails to
terminate this Lease and the restoration is permitted under the existing laws,
Landlord, at its option, may terminate this Lease, or restore the Premises
and/or any other improvements in which the Premises are located within a
reasonable time and this Lease shall continue in full force and effect. If the
existing laws do not permit the restoration, either party can terminate this
Lease immediately by giving notice to the other party.
(c) Notwithstanding the above, if the Tenant is the insuring party and
if the insurance proceeds received by the Landlord are not sufficient to effect
such repair, Landlord shall give notice to Tenant of the amount required in
addition to the insurance proceeds to effect such repair. Tenant may, at
Tenant's option, contribute the required amount, but upon failure to do so
within thirty (30) days following such notice, Landlord's sole remedy shall be,
at Landlord's option and with no liability to Tenant, to cancel and terminate
this Lease. If Tenant shall contribute such amount to Landlord within said
thirty (30) day period, Landlord shall make such repairs as soon as reasonably
possible and this Lease shall continue in full force and effect. Tenant shall in
no event have any right to reimbursement for any amount so contributed.
(d) Damage - Uninsured.
In the event that the Premises are damaged or destroyed by a casualty
which is not covered by the fire and extended coverage insurance which is
required to be carried by the party designated in Article 11(a) above, then
Landlord shall restore the same; provided that if the damage or destruction is
to an extent greater than ten (10%) percent of the then replacement cost of the
improvements on the Premises (exclusive of Tenant's trade fixtures and equipment
and exclusive of foundations and footings), then Landlord may elect not to
restore and to terminate this Lease. Landlord must give to Tenant written notice
of its intention not to restore within thirty (30) days from the date of such
damage or destruction and, if not given, Landlord shall be deemed to have
elected to restore and in such event shall repair any damage as soon as
reasonably possible. In the event that Landlord elects to give such notice of
Landlord's intention to cancel and terminate this lease, Tenant shall have the
right, within ten (10) days after
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receipt of such notice, to give written notice to Landlord of Tenant's intention
to repair such damage at Tenant's expense, without reimbursement from Landlord,
in which event the lease shall continue in full force and effect and Tenant
shall proceed to make such repairs as soon as reasonably possible. If the Tenant
does not give such notice within such 10 day period, this Lease shall be
cancelled and be deemed terminated as of the date of the occurrence of such
damage or destruction.
(e) Damage Near the End of the Term.
If the Premises are totally or partially destroyed during the last
twelve (12) months of the term of this Lease, Landlord may, at Landlord's
option, cancel and terminate this Lease as of the date of the cause of such
damage by giving written notice to Tenant of Landlord's election to do so within
30 days after the date of the occurrence of such damage; provided, however,
that, if the damage or destruction occurs within the last 12 months of the term
and if within fifteen (15) days after the date of such damage or destruction
Tenant exercises any option to extend the term provided herein, Landlord shall
restore the Premises if obligated to do so as provided in subparagraphs (a)(b)
and (c) or (d) above.
(f) Abatement of Rent.
If the Premises are partially or totally destroyed or damaged and
Landlord or Tenant repairs or restores them pursuant to the provisions of this
Article 12, 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 Tenant's reasonable use of the Premises is impaired. Except for the
abatement of rent, if any, Tenant shall have no claim against Landlord for any
damages suffered by reason of any such damage, destruction, repair or
restoration.
(g) Trade Fixtures and Equipment.
If Landlord is required or elects to restore the Premises as provided in
this Article, Landlord shall not be required to restore Tenant's improvements,
trade fixtures, equipment or alterations made by Tenant, such excluded items
being the sole responsibility of Tenant to restore hereunder.
(h) Total Destruction-Multitenant Building.
If the Premises are a part of a multitenant building and there
is destruction to the Premises and/or the building of which the Premises are a
part that exceeds fifty (50%) percent of the then replacement value of the
Premises and/or the building in which the Premises are a part from any cause
whether or not covered by the insurance described in Article 11 above, Landlord
may, at its option, elect to terminate this Lease (whether or not the Premises
are destroyed) so long as Landlord terminates the leases of all other tenants in
the building of which the Premises are a part, effective as of the date of such
damage or destruction.
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13. CONDEMNATION.
(a) If the Premises or any portion thereof are taken by the power of
eminent domain, or sold by Landlord under the threat of exercise of such power
(all of which is herein referred to as "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever occurs first. If more than twenty (20%) percent
of the floor area of any buildings on the Premises, or more than twenty (20%)
percent of the land area of the Premises not covered with buildings, is taken by
condemnation, either Landlord or Tenant may terminate this Lease as of the date
the condemning authority takes possession by notice in writing of such election
within twenty (20) days after Landlord shall have notified Tenant of such taking
or, in the absence of such notice, then within twenty (20) days after the
condemning authority shall have taken possession.
(b) If this Lease is not terminated by either Landlord or Tenant as
provided hereinabove, then it shall remain in full force and effect as to the
portion of the Premises remaining, provided that the rental shall be reduced in
proportion to the floor area of the buildings taken within the Premises as bears
to the total floor area of all buildings located on the Premises. In the event
this Lease is not so terminated, then Landlord agrees at Landlord's sole cost
and expense, to as soon as reasonably possible restore the Premises to a
complete unit of like quality and character as existed prior to the
condemnation.
(c) All awards for the taking of any part of the Premises or any payment
made under the threat of the exercise of the power of eminent domain shall be
the property of the Landlord, whether made as compensation for the diminution of
the value of the leasehold or for the taking of the fee or as severance damages:
provided, however, that Tenant shall be entitled to any award for loss of or
damage to Tenant's trade fixtures and removable personal property.
(d) Each party hereby waives any provisions of the laws or regulations
of the jurisdiction in which the Premises are located allowing either party to
petition the Court to terminate this lease in the event of partial taking of the
Premises.
(e) Rent shall be abated or reduced during the period from the date of
taking until the completion of restoration by Landlord, but all other
obligations of Tenant under this Lease shall remain in full force and effect.
The abatement or reduction of the rent shall be based on the extent to which the
restoration interferes with Tenant's use of the Premises.
14. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not voluntarily or by operation of law
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assign, transfer, sublet, mortgage, or otherwise transfer or encumber all or any
part of Tenant's interest in this Lease or in the Premises without Landlord's
prior written consent which consent shall not be unreasonably withheld. Any
attempted assignment, transfer, mortgage, encumbrance, or subletting without
such consent shall be void and shall constitute a breach of this Lease. If
Tenant is a corporation, any dissolution, merger, consolidation or other
reorganization of Tenant, or the sale or other transfer of a controlling
percentage of the capital stock of Tenant, or the sale of at least fifty-one
(51%) percent of the value of the assets of Tenant shall be deemed a voluntary
assignment. The phrase "controlling percentage" means the ownership of, and the
right to vote, stock possessing at least fifty-one (51%) percent of the total
combined voting power of all classes of Tenant's capital stock issued,
outstanding, and entitled to vote for the election of directors. This paragraph
shall not apply to corporations the stock of which is traded through an exchange
or over the counter.
(b) Regardless of Landlord's consent, no subletting or assignment shall
release Tenant of Tenant's obligation to pay rent and to perform all other
obligations to be performed by Tenant hereunder for the term of this Lease. The
acceptance of rent by Landlord from any other person shall not be deemed a
waiver by Landlord of any provision hereof. Consent to one assignment or
subletting shall not be deemed consent to any subsequent assignment or
subletting.
15. DEFAULT.
(a) Events of Default.
The occurrence of any one or more of the following events shall
constitute a default and breach of this Lease by Tenant:
(1) Failure to pay rent when due, if the failure continues for
five (5) days after written notice has been given to Tenant.
(2) Abandonment and vacation of the Premises (failure to occupy
the Premises for fourteen (14) consecutive days shall be deemed an abandonment
and vacation).
(3) Failure to perform any other provision of this Lease if the
failure to perform is not cured within thirty (30) days after written notice
thereof has been given to Tenant by Landlord. If the default cannot reasonably
be cured within said thirty (30) day period, Tenant shall not be in default
under this Lease if Tenant commences to cure the default within the thirty (30)
day period and diligently prosecutes the same to completion.
(4) The making by Tenant of any general assignment, or general
arrangement for the benefit of creditors; the filing by or against Tenant of a
petition to have Tenant adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy unless the same is dismissed
within sixty (60) days; the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets at the Premises or of
Tenant's
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interest in this Lease, where possession is not restored to Tenant within thirty
(30) days; or the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in the Lease, where such seizure is not discharged within thirty (30)
days.
(b) Notices given under this paragraph shall specify the alleged default
and the applicable Lease provisions, and shall demand that Tenant perform the
provisions of this Lease or pay the rent that is in arrears as the case may be,
within the applicable period of time. No such notice shall be deemed a
forfeiture or a termination of this Lease unless Landlord so elects in the
notice.
(c) Landlord's Remedies.
The Landlord shall have the following remedies if Tenant commits a
default under this Lease. These remedies are not exclusive but are cumulative
and in addition to any remedies now or hereafter allowed by law.
(1) Landlord can continue this Lease in full force and effect, and the
Lease will continue in effect so long as Landlord does not terminate Tenant's
right to possession, and the Landlord shall have the right to collect rent when
due. During the period that Tenant is in default, Landlord can enter the
Premises and relet them, or any part of them, to third parties for Tenant's
account. Tenant shall be liable immediately to the Landlord for all costs the
Landlord incurs in reletting the Premises, including, without limitation,
broker's commissions, expenses of remodelling the Premises required by the
reletting, and like costs. Reletting can be for a period shorter or longer than
the remaining term of this Lease. Tenant shall pay to Landlord the rent due
under this Lease on the dates the rent is due, less the rent Landlord receives
from any reletting. No act by Landlord allowed by this paragraph shall terminate
this Lease unless Landlord notifies Tenant that Landlord elects to terminate
this lease. After tenant's default and for so long as Landlord has not
terminated Tenant's right to possession of the Premises, if Tenant obtains
Landlord's consent, Tenant shall have the right to assign or sublet its interest
in the Lease, but Tenant shall not be released from liability. Landlord's
consent to the proposed assignment or subletting shall not be unreasonably
withheld.
(2) If Landlord elects to relet the Premises as provided in this
paragraph, any rent that Landlord receives from such reletting shall apply first
to the payment of any indebtedness from Tenant to Landlord other than the rent
due from Tenant to Landlord; secondly, to all costs, including maintenance,
incurred by Landlord in such reletting; and third, to any rent due and unpaid
under this Lease. After deducting the payments referred to in this paragraph,
any sum remaining from the rent Landlord receives from such reletting shall be
held by Landlord and applied in payment of future rent as rent becomes due under
this Lease. In no event shall tenant be entitled to any excess rent received by
Landlord. If, on the date rent is due under this Lease, the rent received
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from the reletting is less than the rent due on that date, Tenant shall pay to
Landlord, in addition to the remaining rent due, all costs, including
maintenance, that Landlord shall have incurred in reletting, that remain after
applying the rent received from the reletting as provided by this paragraph.
(3) Landlord can, at its option, terminate Tenant's right to possession
of the Premises at any time. No act by Landlord other than giving written notice
to Tenant shall terminate this Lease. Acts of maintenance, efforts to relet the
Premises, or the appointment of a receiver on Landlord's initiative to protect
Landlord's interest in this Lease shall not constitute a termination of Tenant's
right to possession, in the event of such termination, Landlord has the right to
recover from Tenant:
(i) The worth, at the time of the award, of the unpaid rent that
had been earned at the time of the termination of this Lease;
(ii) The worth, at the time of the award, of the amount by which
the unpaid rent that would have been earned after the date of the termination of
this Lease until the time of the award exceeds the amount of the loss of rent
that Tenant proves could have been reasonably avoided;
(iii) The worth, at the time of the award, of the amount by which
the unpaid rent for the balance of the term after the time of the award exceeds
the amount of the loss of rent that Tenant proves could have been reasonably
avoided; and
(iv) Any other amount, including court costs, necessary to
compensate Landlord for all detriment proximately caused by Tenant's default.
"The worth at the time of the award," as used in (i) and (ii) of
this paragraph is to be computed by allowing interest at the maximum rate an
individual is permitted by Law to charge. "The worth at the time of the award"
as referred to in (iii) of this paragraph is to be computed by discounting the
amount at the discount rate of the Federal Reserve Bank most proximately located
to the Premises at the time of the award, plus one (1%) percent.
(4) If Tenant is in default under the terms of this Lease, Landlord
shall have the additional right to have a receiver appointed to collect rent and
conduct Tenant's business. Neither the filing of a petition for the appointment
of a receiver nor the appointment itself shall constitute an election by
Landlord to terminate this Lease.
(5) Landlord at any time after Tenant commits a default, can cure the
default at Tenant's cost and expense. If Landlord at any time, by reason of
Tenant's default, pays any sum or does any act that requires the payment of any
sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord
at the time the sum is paid, and if paid at a later date shall bear interest at
the maximum rate an individual is permitted by law to charge from the date the
sum is paid by Landlord until Landlord is reimbursed by Tenant. The sum,
together with interest thereon, shall be considered additional rent.
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16. SIGNS.
(a) Tenant shall not have the right to place, construct or maintain any
sign, advertisement, awning, banner, or other exterior decorations on the
building or other improvements that are part of the Premises without Landlord's
prior, written consent, which consent shall not be unreasonably withheld.
17. EARLY POSSESSION.
(a) In the event that the Landlord shall permit Tenant to occupy the
Premises prior to the commencement date of the term of this Lease, such
occupancy shall be subject to all the provisions of this Lease. Said early
possession shall not advance the termination date of this Lease.
18. SUBORDINATION.
(a) This Lease, at Landlord'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 renewal,
modifications, and extensions thereof. Notwithstanding any such subordination,
Tenant's right to quiet possession of the Premises shall not be disturbed if
Tenant is not in default and so long as Tenant shall pay the rent and observe
and perform all the other provisions of this Lease, unless this Lease is
otherwise terminated pursuant to its terms. If any mortgagee, trustee, or ground
lessor shall elect to have this Lease prior to the lien of its mortgage or deed
of trust or ground lease, and shall give written notice thereof to Tenant, this
Lease shall be deemed prior to such mortgage, deed of trust or ground lease,
whether this Lease is dated prior to or subsequent to the date of such mortgage,
deed of trust or ground lease, or the date of recording thereof. Tenant agrees
to execute any documents required to effect 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 from
Landlord does hereby make, constitute and irrevocably appoint Landlord as
Tenant's attorney in fact and in Tenant's name, place and stead to do so.
19. SURRENDER.
(a) On the last day of the term hereof, or on any sooner termination,
Tenant shall surrender the Premises to Landlord in good condition, broom clean,
ordinary wear and tear accepted. Tenant shall repair any damage to the Premises
occasioned by its use thereof, or by the removal of Tenant's trade fixtures,
furnishings and equipment which repair shall include the patching
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and filling of holes and repair of structural damage. Tenant shall remove all of
its personal property and fixtures on the Premises prior to the expiration of
the term of this Lease and if required by Landlord pursuant to Article 10(a)
above, any alterations, improvements or additions made by Tenant to the
Premises. If Tenant fails to surrender the Premises to Landlord on the
expiration of the Lease as required by this paragraph, Tenant shall hold
Landlord harmless from all damages resulting from Tenant's failure to vacate the
Premises, including, without limitation, claims made by succeeding tenant
resulting from Tenant's failure to surrender the Premises.
20. HOLDING OVER.
(a) If the Tenant, with the Landlord's consent, remains in possession of
the Premises after the expiration or termination of the term of this Lease, such
possession by Tenant shall be deemed to be a tenancy from month-to-month at a
rental in the amount of the last monthly rental plus all other charges payable
hereunder, upon all the provisions of this Lease applicable to month-to month
tenancy.
21. BINDING ON SUCCESSORS AND ASSIGNS.
(a) The terms, conditions and covenants of this Lease shall be binding
upon and shall inure to the benefit of each of the parties hereto, their heirs,
personal representatives, successors and assigns.
22. NOTICES.
(a) Whenever under this Lease a provision is made for any demand, notice
or declaration of any kind, it shall be in writing and served either personally
or sent by registered or certified United States mail, postage prepaid,
addressed as set forth below;
TO LANDLORD AT:
TO TENANT AT:
(b) Such notice shall be deemed to be received within forty-eight (48)
hours from the time of mailing. If mailed as provided in this paragraph.
23. LANDLORD'S RIGHT TO INSPECTIONS.
(a) Landlord and Landlord's agent shall have the right to enter the
Premises at reasonable times for the purpose of
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inspecting same, showing the same to prospective purchasers or lenders, and
making such alterations, repairs, improvements or additions to the Premises or
to the building of which the Premises are a part as Landlord may deem necessary
or desirable. Landlord may at any time place on or about the Premises any
ordinary "For Sale or Lease" signs, all without rebate of rent or liability to
Tenant.
24. CHOICE OF LAW.
(a) This Lease shall be governed by the laws of the state in which the
Premises are located.
25. ATTORNEY'S FEES.
(a) If either Landlord or Tenant becomes a party to any litigation or
arbitration concerning this Lease, the premises, or the building or other
improvements in which the Premises are located, by reason of any act or omission
of the other party or its authorized representatives, and not by reason of any
act or omission of the party that becomes a party to that litigation or any act
or omission of its authorized representatives, the party that causes the other
party to become involved in the litigation shall be liable to that party for
reasonable attorney's fees and court costs incurred by it in the litigation.
(b) If either party commences an action against the other party arising
out of or in connection with this Lease, the prevailing party shall be entitled
to have and recover from the losing party reasonable attorney's fees and costs
of suit.
26. LANDLORD'S LIABILITY.
(a) The term "Landlord" as used in this Lease shall mean only the owner
or owners at the time in question of the fee title or of Lessee's interest in a
ground lease of the Premises, and in the event of any transfer of such title or
interest, Landlord herein named (and in case of subsequent transfers to the then
successor) shall be relieved from and after the date of such transfer of all
liability in respect to Landlord's obligations thereafter to be performed. The
obligations contained in this Lease to be performed by Landlord shall be binding
upon the Landlord's successors and assigns, only during their respective periods
of ownership.
27. WAIVERS.
(a) No waiver by Landlord of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Tenant of
the same or any other provision. Landlord's consent to or approval of any act
shall not be deemed to render unnecessary the obtaining of Landlord's consent to
or approval of any subsequent act by Tenant. The acceptance of rent hereunder by
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Landlord shall not be a wavier of any preceding breach by Tenant of any
provision hereof, other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of its acceptance of such rent.
28. INCORPORATION OF PRIOR AGREEMENTS.
(a) 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 only in writing,
and signed by the parties in interest at the time of such modification.
29. TIME.
(a) Time is of the essence of this Lease.
30. SEVERABILITY.
(a) The unenforceability, invalidity, or illegality of any provision of
this Lease shall not render the other provisions hereof unenforceable, invalid
or illegal.
31. ESTOPPEL CERTIFICATES.
(a) Each party, within ten (10) days after notice from the other party,
shall execute and deliver to the other party a certificate stating that this
Lease is unmodified and in full force and effect, or in full force and effect as
modified, and stating the modification. The certificate shall also state the
amount of minimum monthly rent, the dates to which rent has been paid in
advance, and the amount of any security deposit or prepaid rent, if any, as well
as acknowledging that there are not, to the party's knowledge, any uncured
defaults on the part of the other party, or specifying such defaults, if any,
which are claimed. Failure to deliver such a certificate within the ten (10) day
period shall be conclusive upon the party failing to deliver the certificate to
the benefit of the party requesting the certificate that this Lease is in full
force and effect, that there are no uncured defaults hereunder, and has not been
modified except as may be represented by the party requesting the certificate.
32. COVENANTS AND CONDITIONS.
(a) Each provision of this Lease performable by Tenant shall be deemed
both a covenant and condition.
33. SINGULAR AND PLURAL.
(a) When required by the context of this Lease, the singular shall
include the plural.
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34. JOINT AND SEVERAL OBLIGATIONS.
(a) "Party" shall mean Landlord and Tenant, and if more than one person
or entity is the Landlord or Tenant, the obligations imposed on that party shall
be joint and several.
35. OPTION TO EXTEND.
(a) Provided that Tenant shall not be in default hereunder, Tenant shall
have the option to extend the term of this Lease for one (1) additional five (5)
year period upon the same terms and conditions herein contained, except that the
rent, for the first year of the renewal term shall be adjusted to an amount
equal to the then fair market rental for the Premises (based on a review of the
rental rates for comparable premises in the same area), and for the subsequent
years of the renewal term rent shall be subject to "C.P.I." increases, as set
forth in Article 4. herein. Tenant shall exercise its option by delivery to
Landlord of written notice of its election to exercise such option at least
ninety (90) days prior to the expiration of the original term hereof.
36. INDEPENDENT AGREEMENTS.
(a) Landlord acknowledges that this is one of four commercial leases
made and entered into this date by Landlord and Tenant, and agrees that each
Lease is a separate and independent agreement, and that the provisions of each
lease may be exercised by Tenant, including specifically its option to renew,
independently and without regard to the exercise of the provisions in any other
lease. Further, Landlord agrees that the default of Tenant as to the terms and
conditions of one lease, shall in no way affect Tenant's rights to exercise or
not exercise its options pursuant to those other leases executed between the
parties, for which it is not in default.
37. LANDLORD AND TENANT.
(a) Landlord and Tenant expressly recognize and agree that Tenant shall
not be responsible for correcting, eliminating or removing any environmental
hazards or conditions on the premises which were neither caused by nor the
result of Tenant's acts or omissions, and that this paragraph 37 shall supercede
and modify and contrary or inconsistent terms or provisions, if any, which may
be found elsewhere in this Lease.
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The parties have executed this Lease on the date first above written.
LANDLORD: TENANT:
By: By:
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By: By:
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