000 - 000 XXXXXXXX
XXX XXXXXXXXX, XXXXXXXXXX
LEASE
THIS LEASE is made and entered into this 1 day of August, 1994, by and
between ROMA CAFE, INC., a California corporation, (collectively "Landlord") and
BOYS TOYS, INC., a California corporation ("Tenant").
ARTICLE 1
PREMISES
For and in consideration of the Rent to be paid, the covenants to be
performed and the agreements to be kept by Tenant, Landlord hereby leases to
Tenant and Tenant hereby leases from Landlord that certain real property
commonly known as 408 and 000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx (the
"Premises"). The Premises consist of an entire building consisting of two (2)
floors and an alleyway along the west-side of the building.
ARTICLE 2
TERM
2.1 TERM. The term of this Lease shall commence upon the opening of the
Premises to the public for business as provided in Article 6 below, (the
"Commencement Date") and continue thereafter, for a period of ten (10)
consecutive years, at which time this Lease shall end, unless sooner terminated
pursuant to the provisions of this Lease, or extended as provided in Paragraph
2.2, below. Provided, however, that notwithstanding when Tenant opens the
Premises for business, the Commencement Date hereof shall be no later than
February 1, 1995. The parties agree that they will execute an addendum to this
Lease at such time as the actual Commencement Date becomes known setting forth
specifically the Commencement Date and the date the initial lease term shall
expire.
2.2 OPTION TO EXTEND. Provided Tenant is not in default of any of the terms,
covenants, conditions and restrictions herein agreed to, Tenant is hereby
granted two successive options to extend the term of the Lease for a period of
five (5) years each. Each such option period is herein referred to as an
"Extended Term". Tenant shall extend the term of this Lease, if at all, by
written notice given to Landlord not less than one hundred eighty (180) days
prior to termination of the initial term of this Lease or, with respect to the
Second Extended Term, not less than one hundred eighty (180) days prior to
expiration of the First Extended Term. Upon extension of the term hereof, this
Lease shall remain in full force and effect, in accordance with all the terms
and conditions set forth herein, provided that the Monthly Rent payable shall be
determined in accordance with the provisions of Section 3.2 below.
2.3 POSSESSION. Notwithstanding the Commencement Date set forth above, Tenant
shall take possession of the Premises, and Landlord shall deliver same, upon
execution of this Lease by all parties. The parties contemplate that Tenant will
undertake, at Tenant's expense, certain Tenant improvements to the Premises as
set forth more fully at Paragraph
9.1 below. During the time period beginning upon possession of the Premises
being delivered to Tenant and ending on the Commencement Date, Tenant shall
perform, and be responsible for, each and every covenant, condition, obligation
and agreement imposed upon Tenant by this Lease, save and accept payment of any
monthly rental amount for the Premises. Tenant's obligation to pay rent shall
not begin until the Commencement Date.
2.4 BUSINESS LICENSING. Notwithstanding any term herein to the contrary,
should Tenant be unable to secure all governmental licensing necessary to
operate Tenant's intended business as described in Article 6 by August 31, 1994,
this Lease shall terminate at the option of Tenant.
ARTICLE 3
RENT
3.1 MONTHLY RENT. Tenant shall pay to Landlord as Monthly Rent for the
Premises in advance on the first (1st) day of each calendar month throughout
the term of this Lease without any prior notice, demand, deduction or offset,
the sum determined in accordance with the following schedule. For purposes of
determining the Monthly Rent below, each "year shall be defined as each
twelve (12) month period during the term hereof beginning on the Commencement
Date.
Years One $11,000 per month
Years Two and Three $11,500 per month
Years Four and Five $12,000 per month
Years Six and Seven $12,500 per month
Year Eight $13,000 per month
Year Nine $13,500 per month
Year Ten $14,000 per month
The obligation to pay Monthly Rent hereunder shall commence on the
Commencement Date as defined herein. If the Commencement occurs other than on
the first day of a calendar month, then the first month's rent due hereunder
on the Commencement Date shall be prorated in direct proportion as the
remaining number of days in the month bears to the total number of days in
that month. Said partial month shall count as the first (1st) month in
determining the Monthly Rent due under the above schedule.
3.2 EXTENDED TERM RENT. The Monthly Rent payable during each Extended Term
of the Lease shall be subject to adjustment at the commencement of the
Extended Term and each year, thereafter ("the adjustment date") as follows:
The base for computing the adjustment is the Consumer Price Index,
published by the United States Department of Labor, Bureau of Labor Statistics
for the San Francisco/Northern California region ("Index"), which is published
for the end of the month twelve (12) months prior to the adjustment date
("Beginning Index"). If the Index published nearest the adjustment date
("Extension Index") has increased over the Beginning Index, the Monthly Rent for
the following year (until the next rent adjustment) shall be set by multiplying
the
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Monthly Rent due the month prior to the adjustment date by a fraction, the
numerator of which is the Extension Index and the denominator of which is the
Beginning Index. In no case shall the Monthly Rent be less than the Monthly Rent
due in the month prior to the adjustment date. On adjustment of the Monthly Rent
as provided in this Lease, the parties shall immediately execute an amendment to
the Lease stating the new Monthly Rent.
If the index is changed so that the base year differs from that used as
of the end of the month immediately preceding the month in which 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.
3.3 LATE CHARGE. If Tenant fails to pay within ten (10) days after the due
date thereof any Monthly Rent charges or other amounts payable to Landlord by
Tenant under the terms of this Lease, Tenant shall immediately pay to Landlord a
late charge equal to five percent (5%) of the delinquent amount. Tenant
acknowledges that such late payment by Tenant will cause Landlord to incur costs
and expenses not contemplated under this Lease, the exact amount of which could
be impracticable or extremely difficult to fix. Such costs and expenses will
include, without limitation, administrative and collection costs and processing
and accounting expenses. Landlord and Tenant agree that this late charge
represents a reasonable estimate of such costs and expenses and is fair
compensation to Landlord for its loss suffered by Tenant's failure to make
timely payment. Landlord's acceptance of this late charge shall not constitute a
waiver of Tenant's default with respect to nonpayment by Tenant nor prevent
Landlord from exercising all other rights and remedies available to Landlord
under this Lease.
ARTICLE 4
SECURITY DEPOSIT
Within two (2) business days following execution hereof, Tenant shall
deposit with Landlord the sum of Eleven Thousand Dollars ($11,000) which sum
shall be held, applied and considered as the first month's rent due hereunder.
Within ninety (90) days following execution hereof, Tenant shall deposit with
Landlord an additional Fourteen Thousand Dollars ($14,000) which sum shall be
held as security for the full and faithful performance of every provision of
this Lease to be performed by Tenant. If Tenant fails to pay rent or other
charges due hereunder, or otherwise breaches its obligations under any provision
of this Lease, Landlord may use, apply or retain all or any portion of the
deposit for the payment of any rent or other charge in default or for the
payment of any other sum to which Landlord may become obligated by reason of
Tenant's breach, or to compensate Landlord for any loss or damage which Landlord
may suffer thereby. If Landlord so uses or applies all or a portion of the
Security Deposit, Tenant shall, within five (5) days after demand therefore,
deposit cash with Landlord in an amount sufficient to completely restore the
Security Deposit, and Tenant's failure to do so shall be a breach of this Lease.
If Tenant performs all of Tenant's obligations hereunder, the Security Deposit
or any balance thereof shall be applied toward the rental amount due for the
last month for which Tenant is obligated to pay rent hereunder. The exercise by
Landlord of any of its rights under this Article 4 shall be without prejudice to
the exercise by Landlord of any other rights or remedies to which Landlord may
be entitled.
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ARTICLE 5
TAXES
5.1 REAL PROPERTY TAXES. Tenant shall pay before delinquent all Real Property
Taxes, as defined below, assessed against the Premises during the term of this
Lease. "Real Property Taxes" shall be defined as any form of real estate tax or
assessment, general, special, ordinary or extraordinary, including any business
license fee, commercial rental tax, improvement bond or bonds, levy or tax, but
shall not include any municipal, county, state or federal income or franchise
tax of any municipal, county or state. If at any time during the term of the
Lease, the laws concerning the methods of real property taxation are changed so
that a tax or excise on rents or other such tax, fee, levy, assessment or
charge, however described, is levied or assessed against Landlord as a direct
substitution in whole or in part for any Real Property Taxes, then Tenant shall
pay before delinquency Tenant's proportionate share of such substitute tax,
excise or other amount.
Tenant shall not be obligated to pay any increase in Real Property Taxes
that result from a change in ownership of the Premises.
Tenant shall pay to Landlord the Real Property Taxes assessed against the
Premises in twelve (12) equal monthly installments for each year of the Lease
term commencing on the Commencement Date. Landlord shall provide to Tenant
reasonable documentation evidencing the amount of Real Property Taxes payable
with respect to calendar year 1994, and the calculation of the monthly Real
Property Taxes payable by Tenant to Landlord commencing on the Commencement
Date. In the event that the amount actually paid to Landlord for any calendar
year is less than the amount Tenant is obligated to pay hereunder, then Tenant
shall within thirty (30) days after receipt of such documentation from Landlord,
pay the difference to Landlord. Further, in the event Tenant has paid more to
Landlord than obligated hereunder, then the excess shall be credited against
future payments of Real Property Taxes by Tenant to Landlord; provided that,
upon expiration of this Lease, Landlord shall immediately reimburse to Tenant
any such excess.
Real Property Taxes shall be subject to proration in determining Tenant's
share thereof on the basis of a three hundred sixty-five (365) day year, in
order to account for any Lease Year of less than twelve (12) full calendar
months.
5.2 PERSONAL PROPERTY TAXES. Tenant shall pay, before delinquency, all taxes,
assessments, license fees, and public charges levied, assessed, or imposed upon
its business operation, as well as upon all trade fixtures, leasehold
improvements, merchandise, and other personal property in, on, upon or about the
Premises. If any taxes on Tenant's personal property are levied against Landlord
or Landlord's property, or if the assessed value of the Premises is increased by
the inclusion of a value placed on Tenant's personal property, and if Landlord
pays the taxes on any of these items or taxes based on the increased assessment
of these items, which Landlord shall have the right to do regardless of the
validity of such assessment or levy, Tenant shall immediately reimburse Landlord
for the sum of such taxes levied against Landlord or the proportion of the taxes
resulting from the increase in Landlord's assessment upon receipt by Tenant of a
statement therefor accompanied by supporting data showing Landlord's calculation
and determination thereof.
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ARTICLE 6
USE
6.1 USE OF THE PREMISES; TRADE NAME. Tenant shall use the Premises as an
upscale gentleman's club, including lunch and dinner dining facilities, an
alcohol-related beverage lounge and live entertainment. Tenant shall not use the
Premises for any other use without the prior written consent of Landlord.
6.2 COMPLIANCE WITH LAW. Tenant shall not use the Premises or permit anything
to be done in or about the Premises that will in any way violate any law,
statute, ordinance, or governmental rule or regulation or requirement of
duly-constituted public authorities now or hereinafter in force, including
without limitation any applicable zoning ordinances, building codes, or any
requirements of any board of fire underwriters or other similar body. Tenant
shall at its sole cost and expense determine whether it is in compliance with
the foregoing and shall obtain all necessary government approvals and permits.
Tenant shall promptly comply with all applicable laws, statutes, ordinances,
judgements, orders, rules, regulations, and other requirements now or hereafter
in force and with the requirements of any board of fire underwriters which now
or hereafter relate to or affect the condition, use, or occupancy of the
Premises. Nothing herein shall obligate or entitle the Tenant to make any
structural changes to the Premises or do any other improvements or acts which
are the responsibility of or which would otherwise require the consent of
Landlord hereunder.
6.3 USES PROHIBITED.
(a) Tenant shall not, at any time during the term of this Lease, make any
use of, attach anything to, paint or cover any portion of the exterior of the
Premises, other than for the attachment of any signs or construction of any
other improvements as may be specifically permitted hereunder.
(b) Tenant shall not at any time during the term of this Lease, carry any
stock of goods or do anything on or about the Premises, that will in any way
tend to increase the insurance rates payable with respect to the Premises.
(c) The Premises shall not be overloaded beyond the maximum floor load
capacity of the Premises. In the event Landlord determines that the floor load
capacity has been exceeded, Landlord shall notify Tenant of such condition and
Tenant shall immediately correct such condition.
(d) Tenant shall not cause, maintain, or permit any nuisance in, on, or
about the Premises. Tenant shall not commit or suffer to be committed any waste
in or upon the Premises.
ARTICLE 7
UTILITIES
Landlord agrees that it will cause to be made available to Tenant upon
the Premises facilities for the delivery to and distribution within the Premises
of water, electricity, telephones, and for the removal of sewage. In the event
the initial Tenant Improvements set forth in Article 9.1 require an increase in
the electrical supply or addition of a larger transformer for the Premises, then
Landlord shall be responsible for the cost to provide such electrical supply
increase and/or larger transformer.
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Tenant shall pay, prior to delinquency, for all water, gas, electricity,
telephone, sewage, janitorial service, all other services, materials, and
utilities supplied to the Premises.
Tenant shall store all trash and garbage in good quality containers
within the Premises and arrange for the regular pickup of such trash and garbage
at Tenant's expense. Tenant shall not allow refuse, garbage, or trash to
accumulate outside the Premises, except on the date of scheduled pickup service,
and then only in areas designated by Landlord.
Landlord shall not be liable to Tenant or any other person for, and
neither Tenant nor any other person shall be entitled to, any abatement or
reduction of rent or any damages because of any reduction or suspension in
utility service resulting from the act or failure to act of Tenant, or to the
extent that any such reduction or suspension is for a period of not greater than
twenty-four (24) hours. Landlord's failure to furnish any of the foregoing
service and utility items when such failure is caused by (i) accident, breakage,
or repairs, (ii) strikes, lockouts or other labor disturbance or labor dispute
of any character, (iii) governmental regulation, moratorium or other
governmental action, (iv) inability despite the exercise of reasonable diligence
to obtain electricity, water or fuel, or by (v) any other cause beyond
Landlord's reasonable control, shall not result in any liability to Landlord. In
the event of any failure, stoppage or interruption thereof, Landlord shall
diligently attempt to resume service promptly. No such stoppage of service shall
entitle Tenant to terminate this Lease.
ARTICLE 8
REPAIRS AND MAINTENANCE
8.1 TENANT'S DUTIES. Excepting only matters to be repaired by Landlord as
hereinafter provided, Tenant during the entire term of this Lease shall keep and
maintain at its sole cost and expense the Premises in good, neat, clean and
sanitary order, condition, and repair. Without limiting the generality of the
foregoing, Tenant shall maintain in clean good operating condition and repair
its plumbing lines and drains, sprinkler systems, mechanical ducks, electrical
and lighting facilities and equipment within the Premises, fixtures, interior
walls and interior surface of exterior walls, ceilings, floors, floor coverings,
showcases, skylights, entrances and vestibules, Tenant's exterior signs, all
heat, ventilating and air conditioning equipment, as well as its metal work,
doors and the interior and exterior of all windows in the Premises, including
but not limited to replacement of all broken glass and plate glass, in the
Premises. Tenant shall paint the interior walls and interior surfaces of
exterior walls as often as may be required to keep the Premises neat and
attractive. In the event Landlord determines that the Premises or any windows
for which Tenant is responsible are not being kept or maintained as required by
this Lease, it shall have the right, following the giving of five (5) day's
advance notice, to repair, maintain or clean the Premises or such windows, all
at Tenant's sole cost and expense. Landlord shall have no liability to Tenant
for any damage, inconvenience or interference with the use of the Premises by
Tenant as a result of performing any such work. Nothing herein shall obligate or
entitle the Tenant to make any structural changes to the Premises or do any
other improvements or acts which are the responsibility of or which would
otherwise require the consent of the Landlord hereunder.
8.2 SURRENDER. Upon termination of the Lease by lapse of time, or otherwise
Tenant shall deliver the Premises in good operating condition and repair, broom
clean, ordinary wear and tear and damage by casualty alone excepted. Tenant at
its sole cost and expense shall
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repair any damage relating to the removal of any articles of personal property,
business or trade fixtures, machinery, equipment, cabinet work, furniture,
moveable partitions or improvements or alterations, including the repair of the
floor and walls as required by Landlord in Landlord's reasonable judgment.
8.3 LANDLORD'S DUTIES. Subject to the other provisions of this Lease
regarding any duty of Tenant to indemnify Landlord, Landlord shall at its sole
cost and expense keep in good order, condition and repair only the foundations,
all structural portions of the Premises, exterior walls and roof of the
Premises.
ARTICLE 9
ALTERATIONS AND ADDITIONS
9.1 INITIAL IMPROVEMENTS. Tenant shall construct Tenant Improvements to the
Premises as set forth in Exhibit "A" hereto. Said Tenant Improvements shall be
constructed, at Tenant's sole cost, in accordance with professionally prepared
plans and specifications which Landlord shall have the right to review, inspect
and approve prior to any improvements being commenced; provided, however, that
Landlord shall bear the cost of installing all necessary roofing surfaces on the
existing Premises and any Tenant Improvements constructed by Tenant hereunder.
Landlord may use a contractor of its choice to perform said work. Landlord's
consent shall be required prior to the performance of any Tenant improvement
contemplated pursuant to this Paragraph, which approval shall not be
unreasonably withheld. All Tenant Improvements performed under this Paragraph
9.1 shall also be done in compliance with the provisions of Paragraph 9.2.
9.2 ADDITIONAL ALTERATIONS. Except as provided in paragraph 9.1 above, Tenant
shall not make any alterations, additions, improvements or utility installations
(collectively and singularly referred to as "Work(s) of Improvement" in, on or
about the Premises without the prior written consent of Landlord, except for
non-structural alterations, not exceeding Twenty Thousand Dollars ($20,000) in
cost, which do not involve the exterior of the Premises. The Landlord shall not
unreasonably withhold or delay the granting of consent to such Work of
Improvements, and shall respond to a request for consent within five (5)
business' days. The term "utility installations" as used herein shall be defined
the installation, addition, or alteration of any utility connections or services
including without limitation ducting, power panels, fixtures, switched, space
heaters, and wiring. If consent of Landlord to any proposed Work of Improvement
by Tenant shall have been obtained. Tenant agrees to advise Landlord in writing
in advance of the date upon which such Work of Improvement will commence in
order to permit Landlord to post a timely notice of non-responsibility as set
forth in Article 10 herein. Tenant shall submit to Landlord all plans and
specifications with respect to any such Work of Improvement, including without
limitation the names of all contractors performing such work.
All Works of Improvement must be performed by a licensed Contractor, be
done in a good and workmanlike manner and diligently prosecuted to completion.
Upon completion of such work, Tenant shall file a Notice of Completion as
permitted by law. Any such Work of Improvement shall be performed and done
strictly in accordance with the laws and ordinances relating thereto. Landlord
shall have the right, but not the obligation to inspect the Work of Improvement.
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All Works of Improvement shall at the expiration or earlier termination
of the Lease become the property of the Landlord and remain upon and be
surrendered with the Premises; provided, however, that the personal property,
business and trade fixtures, cabinet work, furniture, removable partitions,
machinery and equipment (other than that which is affixed to the Premises so
that it cannot be removed without material damage to the Premises) shall remain
the property of Tenant and may be removed by Tenant at any time during the term
of this Lease, subject to any restrictions on such removal which may be imposed
by other provisions of this Lease.
ARTICLE 10
LIENS
Tenant shall keep the Premises free from any liens arising out of work
performed, materials or services, supplied or claimed to have been supplied to
Tenant, or anyone holding the Premises, or any part thereof through or under
Tenant. If any such lien shall at anytime be filed against the Premises, Tenant
shall either cause the same to be discharged of record within ten (10) days
after the date of filing same or if Tenant, in Tenant's discretion and in good
faith, determines that such liens should be contested, shall furnish such
security as may be necessary or required to (i) prevent any foreclosure
proceeding against the Premises during pendency of such contest, and (ii) cause
a mutually satisfactory title company to remove such lien affecting title to the
Premises. In the event that Tenant shall not, within said ten (10) day period
cause such lien to be released of record, Landlord shall have, in addition to
all other remedies provided herein and by law, the right, but not the
obligation, to cause the same to be released by such means as it shall deem
proper, including payment of the claim giving rise to such lien. All such sums
paid by Landlord and all expenses incurred by it in connection therewith,
including but not limited to, attorneys' fee and Landlord's costs and expenses,
shall be payable to Landlord by Tenant on demand with interest at the Overdue
Rate. Nothing contained herein shall imply any consent or agreement on the part
of Landlord to subject the Premises to liability under any mechanic's or other
lien law. Landlord shall have the right at all times to post and keep posted on
the Premises any notices permitted or required by law, or that Landlord shall
deem proper, for the protection of Landlord and the Premises, and any other
party having an interest therein, from mechanic's and materialmen's liens;
Tenant shall give to Landlord at least fifteen (15) business' days prior written
notice of the expected date of commencement of any Work of Improvement.
ARTICLE 11
ENTRY BY LANDLORD
Landlord and its authorized representatives shall have free access to
the Premises at all reasonable times during normal business hours upon not
less than forty-eight (48) hours' notice (i) to inspect the Premises, (ii) to
exhibit the same to prospective purchasers, mortgagees, or tenants, (iii) to
determine whether Tenant is complying with all of Tenant's obligations
hereunder, (iv) to supply any service to be provided by Landlord to Tenant
hereunder, (v) to post notices of non-responsibility or other notices that
may be permitted hereunder, and (vi) to make repairs required or permitted to
be made by Landlord under the terms hereof. Notwithstanding the above,
Landlord shall have the right to enter the Premises at any time in order to
make any and all emergency repairs. As used herein, emergency shall mean
circumstances which have caused or may cause material damage to the Premises
or its value or circumstances in which Tenant is in default under the terms of
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the Lease. Tenant hereby waives any claim for damages for any injury,
inconvenience to or interference with Tenant's business or any loss of occupancy
or quiet enjoyment of the Premises, which result from Landlord's entry into the
Premises or any work performed therein by Landlord under the terms of this
Lease; provided, Landlord shall use reasonable efforts to minimize the impact
any such entry may have upon Tenant and the business of Tenant. Landlord shall
at all times have and retain a key with which to unlock the doors in, on or
about the Premises (excluding Tenant's vaults, safes, and similar areas
designated in writing by Tenant in advance) and Landlord shall have the right to
use any and all means which Landlord may deem proper to open such doors in an
emergency in order to obtain entry into the Premises. Any entry to the Premises
obtained by Landlord by any of said means or otherwise, shall not under any
circumstances be construed as unlawful entry into or unlawful detainer of the
Premises or an eviction (actual or constructive) of Tenant from the Premises or
any portion thereof.
ARTICLE 12
INDEMNITY AND EXEMPTION OF LANDLORD FROM LIABILITY
Tenant shall indemnify, defend and hold Landlord harmless from all
claims arising from Tenant's use of the Premises or the conduct of its
business or from any activity, work, or thing done, permitted or suffered by
Tenant in or about the Premises. Tenant shall further indemnify, defend and
hold Landlord harmless from all claims arising from any breach or default in
the performance of any obligation to be performed by tenant under the terms
of this Lease, or arising from any act, neglect, fault or omission of Tenant
or of its agents or employees, and from and against all costs, attorney's
fees, expenses and liabilities incurred in or about such claim or any action
or proceeding brought thereon. In case any action or proceeding brought
against Landlord by reason of any such claim, Tenant upon notice from
Landlord shall defend the same at Tenant's expense by counsel approved in
writing by Landlord. Tenant, as a material part of the consideration to
Landlord, hereby assumes all risk of damage to property or injury to person
in, upon or about the Premises from any cause whatsoever, except that which
is caused by the failure of Landlord to observe any of the terms and
conditions of this Lease where such failure has persisted for any
unreasonable period of time after written notice of such failure. Tenant
hereby waives all its claims in respect thereof against Landlord.
ARTICLE 13
INSURANCE
13.1 TENANT'S POLICIES OF INSURANCE. From and after the date Tenant takes
possession of the Premises and thereafter throughout the Lease term, Tenant
shall procure and maintain at its sole cost and expense, the following insurance
coverage.
(a) Comprehensive General Liability Insurance insuring Tenant and
Landlord against any liability arising out of Tenant's use, occupancy, repair or
maintenance of the Premises or its business operated in the Premises, with
combined single limit for bodily injury or death and property damage of not less
than Two Million Dollars ($2,000,000) per occurrence. Such comprehensive general
liability insurance shall include a contractual liability endorsement covering
tenant's obligations under Article 12 herein.
(b) Standard form fire insurance, providing protection against any peril
included within the classification of "Fire and Extended Coverage," including
but not limited to,
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insurance against sprinkler damage, vandalism, malicious mischief, and water
damage (from roof leakage, ground water are otherwise), covering (i) the whole
of the Building and real property upon which the Premises is located, including
all improvements thereto, (ii) Tenant's alterations, additions and improvements,
and (iii) Tenant's trade fixtures, merchandise, and personal property from time
to time in, on, or upon the Premises, all in an amount not less than the full
replacement value of said Building, improvements and fixtures. Tenant agrees to
carry such insurance, it being expressly understood and agreed that none of the
items to be insured by Tenant hereunder shall be insured by Landlord, nor shall
Landlord be required to re-install, reconstruct, or repair any of such items.
Any policy proceeds shall be used for the repair or replacement of the property
damaged or destroyed unless this Lease shall cease and terminate under the
provisions of Article 14 hereof.
(c) Disability insurance and workmen's compensation insurance in such
amounts as required by applicable law.
(d) Such other insurance and in such amounts as may from time to time be
reasonably required by Landlord against other insurable hazards which at the
time of such requirement are commonly insured against in the case of premises
which are situated, constructed, used and occupied in a manner similar to the
Premises.
(e) All policies of insurance which Tenant is required to obtain under
this Article 13 shall (i) be approved as to form and substance by Landlord,
which approval shall not be unreasonably withheld, (ii) be issued by
insurance companies which are qualified to do business in the state in which
the Premises are located and rated A or better in the most recent version of
BEST'S INSURANCE GUIDE, (iii) be issued in the names of Landlord and Tenant
for the mutual and joint benefit and protection of Landlord and Tenant, (iv)
give Landlord thirty (30) days prior written notice of any cancellation,
lapse or reduction in the amount of insurance, and (v) contain an endorsement
containing an express waiver of any right of subrogation by the insurance
company against Landlord (whether Landlord is named as an insured or not).
All policies to be carried by Tenant hereunder shall be written as primary
policies, not contributing with and not in excess of coverage that Landlord
may carry. Tenant shall have the right to provide such insurance coverage
pursuant to comprehensive policies obtained by Tenant provided such
comprehensive policies expressly afford coverage to the Premises, Landlord
and Tenant as required by this Lease. Each policy of insurance required to be
carried by Tenant or a duplicate or certificate thereof shall be delivered to
Landlord prior to the date the Premises are delivered to Tenant and with
respect to any renewal or replacement policy prior to the expiration of the
policy it renews or replaces. If Tenant shall fail to procure or maintain any
insurance required hereunder or shall fail to furnish to Landlord any such
policy, duplicate policy or certificate as required, Landlord may at
Landlord's option obtain such insurance for the benefit of Tenant and
Landlord, and any premium or cost paid by Landlord for such insurance shall
be paid by Tenant to Landlord promptly upon Landlord's demand therefor. Any
such payment by Landlord shall be subject to interest at the maximum legal
rate from the date of payment until such time as Tenant reimburses Landlord
for such payment.
(f) In addition to the foregoing Tenant insurance requirements, Tenant
shall also have in place during all times construction is occurring at the
Premises an all risk construction or builder's insurance policy in an amount and
scope sufficient to cover all risks created by the construction, as Landlord may
determine.
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13.2 LANDLORD'S INSURANCE. Landlord may in addition, but shall not be required
to, procure and maintain excess coverage liability insurance, earthquake
insurance, flood damage insurance and/or rental income insurance, at its
election or as required by its lender, if any, from time to time during the term
hereof in such amounts and with such limits as Landlord or its lender may deem
appropriate. Any policies obtained by Landlord with respect to the Premises
shall name the Tenant as a co-insured.
In addition to all other sums due hereunder, Tenant shall pay to Landlord
the cost of Landlord's insurance as described herein. During the term of the
Lease, Tenant shall pay to Landlord on a Monthly Basis one-twelfth (12th) of
such amount. Landlord shall provide to Tenant reasonable documentation
evidencing the cost of such insurance to be paid by Tenant hereunder.
13.3 WAIVER OF SUBROGATION. Landlord and Tenant hereby waive any and all
rights of recovery against the other or against the officers, employees, agents,
and representatives, of such other party or of such other tenant or occupant of
the Premises to the extent Landlord or Tenant shall be held responsible and
liable for the actions of the aforesaid individuals, for loss of or damage to
such waiving party or its property or the property of others under its control
arising from any cause insured against by Landlord's and Tenant's respective
insurance policies. Tenant shall obtain and furnish evidence to Landlord of the
waiver by Tenant's Worker's Compensation carrier of any right of subrogation
against Landlord. Each party will provide evidence to the other of their
respective insurer's agreement to this provision within fifteen (15) days of
receipt of a written request therefor.
ARTICLE 14
DAMAGE AND DESTRUCTION
In the event the Premises is damaged by fire or other perils covered by
insurance coverage provided for herein, Landlord shall (i) in the event of total
destruction, at Landlord's option, as soon as reasonably possible thereafter,
commence repair, reconstruction and restoration of the Premises and prosecute
the same diligently to completion, in which event this Lease shall remain in
full force and effect; or within ninety (90) days after such damage, elect not
to so repair, reconstruct or restore the Premises, in which event this Lease
shall terminate. In either event, Landlord shall give Tenant written notice of
its intention within said ninety (90) day period. In the event Landlord elects
not to restore the Premises, this Lease shall be deemed to have terminated as of
the date of such total destruction. (ii) In the event of a partial destruction
of the Premises, to an extent not exceeding 25% of the full insurable value
thereof, and if the damage thereto is such that the Premises may be repaired,
reconstructed or restored within a period of ninety (90) days from the date or
the happening of such casualty and if insurance proceeds from policies provided
for herein sufficient to cover the cost of such repairs are available, then
Landlord shall commence and proceed diligently with the work of repair,
reconstruction and restoration and this Lease shall continue in full force and
effect. If such work of repair, reconstruction and restoration shall require a
period longer than ninety (90) days or exceeds 25% of the full insurable value
thereof, or if said insurance proceeds will not be sufficient to cover the cost
of such repairs, then Landlord either may elect to so repair, reconstruct or
restore and the Lease shall continue in full force and effect or Landlord may
elect not to repair, reconstruct or restore and the Lease shall then terminate.
Under any of the conditions of this subparagraph, Landlord shall give written
notice to Tenant of its intention within said ninety (90) day
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period. In the event Landlord elects not to restore the Premises, this Lease
shall be deemed to have terminated as of the date of such partial destruction.
Upon any termination of this Lease under any of the provisions of this
Article, the parties shall be released without further obligation to the other
from the date possession of the Premises is surrendered to Landlord except for
items which have therefore accrued and are then unpaid.
In the event of repair, reconstruction and restoration by Landlord as
herein provided, the rental payable under this Lease shall be abated
proportionately with the degree to which Tenant's use of the Premises is
impaired during the period of such repair, reconstruction or restoration and for
a reasonable time thereafter, associated with Tenant's refixturization and
restoration of improvements originally provided by Tenant to the Premises.
Tenant shall not be entitled to any compensation or damages for loss in the use
of the whole or any part of the Premises and/or any inconvenience or annoyance
occasioned by such damage, repair, reconstruction or restoration.
Tenant shall not be released from any of its obligations under this
Lease, except to the extent and upon the conditions expressly stated in this
Article. Notwithstanding anything to the contrary contained in this Article, if
Landlord is delayed or prevented from repairing or restoring the damaged
Premises within one (1) year after the occurrence of such damage or destruction
by reason of acts of God, war, governmental restrictions, inability to procure
the necessary labor or materials, or other cause beyond the control of Landlord,
Landlord shall be relieved of its obligation to make such repairs or restoration
and Tenant shall be released from its obligations under this Lease as of the end
of said one (1) year period.
If damage is due to any cause other than fire or other peril covered by
extended coverage insurance secured by Tenant under paragraph 13.1, Landlord may
elect to terminate this Lease.
Notwithstanding anything to the contrary contained in this Article 14,
Landlord shall not have any obligation whatsoever to repair, reconstruct or
restore the Premises when the damage resulting from any casualty covered under
this Article 14 occurs during the last twenty-four (24) months of the term of
this Lease or any extension hereof.
The provisions of California Civil Code Section 1932, Subsection 2, and
Section 1933, Subsection 2, and Section 1933, Subsection 4, which permit
termination of a lease upon destruction of the Premises, are hereby waived by
Tenant; and the provisions of this Article shall govern in case of such
destruction.
ARTICLE 15
EMINENT DOMAIN
15.1 TOTAL OR PARTIAL TAKING.
(a) In the event that at any time during the term of this Lease, title to
the whole of the Premises shall be taken by the exercise of the right to
condemnation or eminent domain or by agreement between the Landlord and those
authorized to exercise such right, this Lease shall terminate and expire on the
date of such taking (herein called the "Taking
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Date") and the rent provided to be paid by the Tenant shall be apportioned and
paid to the Taking Date.
(b) If 25% or more of the Premises shall be taken, or all reasonable
means of ingress and egress to and from the Premises are permanently eliminated
by reason of such a taking, then and in any such events, Landlord and Tenant
shall each have the right to terminate this Lease on the next date for payment
of Monthly Rent.
In the event the Lease is not terminated as provided above, the Monthly
Rent shall be reduced in the proportion that the square footage of the portion
of the Premises taken bears to the square footage of the Floor Area of the
Premises prior to the taking. Landlord shall promptly at its expense restore the
portion of the Premises not so taken and Tenant shall be responsible for
restoring all the interior improvements.
In the event Landlord is advised of an impending condemnation, Landlord
shall give written notice of such fact to Tenant within five (5) business' days
thereafter, and Tenant at its election, shall be entitled to participate in any
negotiations or litigation with the condemning authority.
In the event that Tenant is advised of an impending condemnation then
Tenant shall give written notice of such fact to Landlord within five (5)
business' days, thereafter.
15.2 COMPENSATION. Landlord shall be entitled to any and all compensation,
damages, income, rent, awards, or any interest whatsoever which may be paid or
made in connection with such taking, including without limitation any leasehold
"bonus value", and Tenant shall have no claim against Landlord for the value of
any unexpired term of the Lease. Notwithstanding the foregoing Tenant, at its
costs and expense, shall be entitled to separately claim, in any condemnation
proceeding, any damages payable for movable trade fixtures paid for and
installed by Tenant (or any persons claiming under Tenant) without any
contribution or reimbursement therefor by Landlord, and Tenant's loss of
business, and for Tenant's relocation costs.
ARTICLE 16
HAZARDOUS MATERIALS
16.1 DEFINITION. The term "Hazardous Materials" shall be defined as any so
defined and hazardous or toxic substance, material or waste, which is or becomes
so defined or regulated by any local governmental authority, the State of
California or the United States government.
16.2 OBLIGATION OF TENANT. Except as used in accordance with law and in
ordinary course of business, Tenant shall not cause or permit any hazardous
materials to be brought upon, kept or used in or about the Premises, whether by
Tenant, its agents, its employees, contractors or invitees. In the event, that
Tenant shall breach this obligation then Tenant shall indemnify, defend and hold
the Landlord harmless from any and all claims, judgments, damages, penalties,
fines, costs, expenses, liabilities and losses (including without limitation
diminution in value of the Premises and damages from the loss or restriction on
use of the Premises) and including reasonable attorneys' fees incurred by
Landlord in connection with such breach.
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16.3 LANDLORD'S OBLIGATION. Landlord shall be responsible for any Hazardous
Materials existing on the Premises prior to the date of this Lease.
ARTICLE 17
ASSIGNMENT AND SUBLETTING
17.1 LANDLORD'S CONSENT REQUIRED. Tenant shall not voluntarily, by operation
of law or otherwise, assign this Lease or enter into license or concession
agreements, sublet all or any part of the Premises, or otherwise transfer,
mortgage, pledge, hypothecate, or encumber all or any part of Tenant's interest
in this Lease or in the Premises or any part thereof, or suffer or permit the
Premises or any part thereof to be used by any third party other than Tenant,
its authorized agents, employees, invitees, and visitors, without Landlord's
prior written consent, and any attempt to do so without such consent being first
had and obtained shall be wholly void and shall constitute a breach of this
Lease. Landlord shall not unreasonably withhold or delay such consent. A period
of fifteen (15) days for the granting or denial of such consent shall not be
deemed to be an unreasonable delay.
Notwithstanding the foregoing, Tenant may assign or sublet all or any
portion of the Premises to a corporation affiliated with Tenant; provided that,
Tenant shall remain obligated to perform all of the obligations to be performed
by Tenant under the Lease. For purposes of the preceding sentence, a corporation
shall be deemed affiliated with Tenant if a majority of its outstanding capital
stock is owned by Tenant or by the same individuals that own a majority of the
outstanding capital stock of Tenant.
If Tenant requests Landlord to consent to a proposed assignment or
subletting, Tenant shall pay to Landlord, whether or not consent is ultimately
given, Landlord's administrative and legal fees and expenses incurred in
connection with any such request to a maximum of Seven Hundred Fifty Dollars
($750).
In the event of a subletting or assignment of the Premises pursuant to
which Tenant receives or contracts to receive an amount in excess of its
monetary obligations to Landlord, such excess less the cost associated with the
subletting or assignment, shall be deemed "profit". All profit, whether received
in monthly payments or as lump sum consideration shall be shared equally with
the Landlord on a fifty (50) fifty (50) basis as consideration for the consent
of Landlord to such subletting or assignment.
17.2 NO RELEASE OF TENANT. No consent by Landlord to any assignment of this
Lease or subletting of the Premises by Tenant shall relieve Tenant of any
obligation to be performed by Tenant under this Lease, whether occurring before
or after such consent to assignment or subletting of the Premises. The consent
by Landlord to any such assignment or subletting shall not relieve Tenant from
the obligation to obtain Landlord's express written consent to any other
subsequent assignment or subletting. The acceptance of rent by Landlord from any
other person shall not be deemed a waiver by Landlord of any provision of this
Lease or to be a consent to any other assignment or subletting. Consent to one
assignment or subletting shall not be deemed to constitute consent to any
subsequent assignment or subletting.
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ARTICLE 18
SUBORDINATION; QUIET ENJOYMENT; ATTORNMENT
18.1 SUBORDINATION. This Lease shall, at Landlord's option, be subject and
subordinate to ail ground or underlying leases that now or hereafter exist which
affect the Premises or the land upon which the Premises are situated or both,
and to the lien of any mortgages or deeds of trust in any amount or amounts
whatsoever now or hereafter placed on or against the Premises or improvements
thereon or on or against Landlord's interest or estate therein, without the
necessity of the execution and delivery of any further instruments on the part
of Tenant to effectuate such subordination. If any mortgagee, trustee, or ground
lessor shall elect to have this Lease prior to the lien of its mortgage, 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 or subsequent to the date of said mortgage,
deed of trust, or ground lease, or the date of the recording thereof. Tenant
covenants and agrees to execute and deliver upon demand without charge therefor
such further instrument evidencing such subordination of this Lease to such
ground or underlying leases and to the lien of any such mortgage or deeds of
trust as may be required by Landlord, provided, that Landlord first obtains from
the Lender a written agreement that provides substantially that as long as
Tenant performs its obligations under this Lease and is not in breach hereof (i)
no foreclosure, deed given in lieu of foreclosure, power of sale, or steps or
procedures taken under the encumbrance (collectively referred to as
"Foreclosure"), shall affect Tenant's rights under the Lease, and (ii) the
provisions of this Lease concerning the disposition of insurance proceeds
resulting from the destruction of the Premises, and the disposition of any
condemnation award, shall prevail over any conflicting provisions in the
encumbrance.
18.2 ATTORNMENT. In the event any proceedings are brought for default under
any ground or underlying lease or in the event of Foreclosure, Tenant shall
attorn to the ground or master lessor or the Foreclosure purchaser and recognize
such person as the Landlord, provided said person expressly agrees in writing to
be bound by the terms of the Lease.
18.3 ESTOPPEL CERTIFICATE. Tenant shall within ten (10) days after receipt of
written request from Landlord execute and deliver to Landlord, a certificate
stating (i) that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this Lease
as modified is in full force and effect) and the dates to which Monthly Rent and
other charges are paid in advance, if any, (ii) that Landlord is not in default
under the Lease, or stating the nature of any alleged default, and (iii) such
other matters as may be reasonably requested. Tenant's failure to deliver such
statement within such time shall constitute a material breach of this Lease and
shall be conclusive upon Tenant (i) that this Lease is in full force and effect
without modification, except as may be represented by Landlord, (ii) that there
are no uncured defaults in Landlord's performance, (iii) that not more than one
month's Monthly Rent has been paid in advance, and (iv) as to such other matters
as may be specified in the request from Landlord.
18.4 QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that upon
Tenant paying said rent and performing all the covenants and conditions
aforesaid on Tenant's part to be observed and performed, Tenant shall and may
peaceably and quietly have, hold and enjoy the Premises hereby demised, for the
term aforesaid; subject, however, to the terms of this Lease and of the ground
leases, underlying leases and mortgages hereinabove mentioned.
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ARTICLE 19
SIGNS
Tenant may, during the term of this Lease, upon obtaining any and all
necessary permits from governmental authorities and provided that Tenant is and
shall be in compliance with the provisions of this Lease, erect and maintain, at
its cost and expense, signs of such dimensions and materials as it may
reasonably deem appropriate in or about the Premises. Such signs shall, at the
option of Landlord, be removed by Tenant upon the termination of its occupancy
of the Premises at its sole expense without damage to the Premises.
ARTICLE 20
DEFAULT REMEDIES
20.1 DEFAULTS BY TENANT. The occurrence of any of the following shall
constitute a material default and breach of this Lease by Tenant (i) any failure
by Tenant to pay rent or any other monetary sums required to be paid hereunder
where such failure continues for three (3) days after written notice has been
given to Tenant, (ii) the abandonment or vacation of the Premises by Tenant, or
(iii) a failure by Tenant to observe and perform any other express or implied
covenants or provisions of this Lease to be observed and performed by Tenant,
where such failure continues for ten (10) days after written notice thereof by
Landlord to Tenant; provided, however, that if the nature of the default is such
that the same cannot reasonably be cured within said ten (10) day period, Tenant
shall not be deemed to be in default if Tenant shall within such period commence
such cure and thereafter diligently prosecute the same to completion. Any such
notice of default shall be in lieu of, and not in addition to, any notice
required by law.
(a) REMEDIES. In the event of any such default or breach by Tenant,
Landlord may at any time thereafter, without limiting Landlord in the exercise
of any right or remedy at law or in equity that Landlord may have by reason of
such default or breach:
(i) Maintain this Lease in full force and effect and recover the rent
and other monetary charges as they become due, without terminating Tenant's
right to possession, pursuant to California Civil Code Section 1951.4; or,
(ii) Terminate Tenant's right to possession by any lawful means, in
which case this Lease shall terminate and Tenant shall immediately surrender
possession of the Premises to Landlord. In such event Landlord shall be entitled
to recover from Tenant all damages incurred by Landlord by reason of Tenant's
default as more particularly set forth in California Civil Code Section 1951.2,
including the worth at the time any judgment is obtained against Tenant of the
amount by which the unpaid rent for the balance of the term of the Lease exceeds
the amount of such rental loss for the same period that the Tenant proves could
reasonably have been avoided.
In addition, Landlord shall also be entitled to recover all leasing
commissions, costs of preparing the Premises for reletting and any other costs
and expenses in lieu of any of the foregoing or in addition thereto as may be
permitted from time to time by the laws of the State of California.
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For all purposes of this Article 20, the term "rent" shall be deemed to
be Monthly Rent and all other sums required to be paid by Tenant pursuant to the
terms of this Lease.
In the event of default and in the event that Landlord elects the remedy
set forth in Paragraph 20.1 (a)(i), Tenant shall have the right to assign
Tenant's interest in the Lease so long as Tenant obtains Landlord's written
consent thereto, which consent will not unreasonably be withheld. Landlord's
reasonable determination regarding consent for such assignment will be based on
certain facts and circumstances which shall include, but shall not be limited to
the proposed assignee's ability to comply with all of the terms and conditions
of the Lease, the proposed assignee's financial responsibility or stability, and
the suitability of the Premises for the intended use of the proposed assignee.
Pursuant to the provisions of California Civil Code Section 1951.4 the
following acts by Landlord shall not constitute a termination of Tenant's right
to possession (i) acts of maintenance or preservation or efforts to let the
Property, and (ii) the appointment of a receiver upon initiative of Landlord to
protect Landlord's interest under the Lease.
(b) ADDITIONAL RIGHTS OF LANDLORD. In the event of default, Tenant's
fixtures, furniture, equipment, improvements, additions, alterations and other
personal property shall at Landlord's option be removed from or left on the
Premises during the length of such default. Landlord shall have the right to
take the exclusive possession of all such property and to use same rent or
charge free, until all defaults are cured.
The remedies given to Landlord in this Article shall be in addition
and supplemental to all other rights or remedies that Landlord may have under
the laws then in force. Landlord shall be under no obligation to observe or
perform any covenant of this Lease that accrues after the date of any default by
Tenant hereunder.
The waiver by Landlord of any breach of any term, covenant, or condition
in this Lease shall not be deemed to be a waiver of any subsequent breach of the
same or any other term, covenant, or condition. The subsequent acceptance of
rent or any other sum owed hereunder by Landlord shall not be deemed to be a
waiver of any preceding breach by Tenant of any term, covenant, or condition of
this Lease, other than the failure of Tenant to pay the particular rent or sum
owed so accepted, regardless of Landlord's knowledge of such preceding breach at
the time of acceptance of such rent or sum owed nor shall acceptance of rent or
any other payment after termination of this Lease constitute a reinstatement,
extension or renewal of this Lease or revocation of any notice or other act by
Landlord. No covenant, term, or condition of this Lease shall be deemed to have
been waived by Landlord unless such waiver is in writing signed by Landlord.
20.2 RIGHTS AND OBLIGATIONS UNDER THE BANKRUPTCY CODE.
(a) Upon the filing of a petition by or against Tenant under the United
States Bankruptcy Code, Tenant, as debtor in possession, and any trustee who may
be appointed agree as follows:
(i) to perform each and every obligation of Tenant under this Lease
until such time as this Lease is either rejected or assumed by order of the
United States Bankruptcy Court;
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(ii) to pay monthly in advance on the first day of each month
reasonable compensation for use and occupancy of the Premises in an amount equal
to all rent, and other charges otherwise due pursuant to this Lease;
(iii) to reject or assume this Lease within sixty (60) days of the
filing of such petition under Chapter 7 of the Bankruptcy Code or within one
hundred twenty (120) days (or such shorter term as Landlord, in its reasonable
judgment, may deem reasonable so long as notice of such period is given) of the
filing of a petition under any other Chapter;
(iv) to give Landlord at least forty-five (45) days prior written
notice of any abandonment of the Premises, any such abandonment to be deemed a
rejection of this Lease;
(v) to do all other things of benefit to Landlord otherwise
required under the Bankruptcy Code;
(vi) NO to be deemed to have rejected this Lease in the event of
the failure to comply with any of the above; and,
(vii) to have consented to the entry of an order by an appropriate
United States Bankruptcy Court providing all of the above, waiving notice and
hearing of the entry of same.
(b) No default under this Lease by Tenant, either prior to or subsequent
to the filing of such a petition, shall be deemed to have been waived unless
expressly done so in writing by Landlord.
ARTICLE 21
LIMITATION OF LANDLORD'S LIABILITY.
In the event that Landlord is in default of this Lease, and as a
consequence thereof Tenant recovers a money judgement against Landlord, such
judgement shall be satisfied only out of the proceeds of sale received on
execution of the judgement and a levy against the right, title and interest of
Landlord in the Premises and out of rent or other income from the Premises
receivable by Landlord or out of the consideration received by Landlord from the
sale or other disposition of all or any part of Landlord's right, title, and
interest in the Premises. Neither Landlord nor, if Landlord is a partnership its
partners (either general or limited), or if Landlord is a corporation its
directors, officers or shareholders shall be personally liable for any such
judgement. Any lien obtained to enforce any judgement against Landlord and any
levy of execution thereon shall be subject and subordinate to the rights of any
lessor under a ground lease or other underlying lease or the mortgagee or
beneficiary under any mortgage or deed of trust encumbering the Premises or any
part thereof.
ARTICLE 22
RIGHT OF FIRST REFUSAL
In the event Landlord shall receive an acceptable and bona fide written
offer to purchase the Premises from an independent purchaser, Landlord shall
give written notice to Tenant of such potential sale of Premises. Such notice
shall set forth the price and the terms of the proposed sale of the Premises.
Tenant shall have the right to purchase the
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Premises for the price and upon the terms set forth in such notice, and must
exercise such right, if at all, by written notice given to Landlord of its
intent to purchase the Premises, which notice must be given no later than thirty
(30) days following the date of the notice of the proposed sale. Escrow for sale
of the Premises to the Tenant shall close not more than six (6) months following
the date on which the Tenant exercises its right to purchase hereunder. In the
event Tenant does not exercise this first right of refusal in the manner set
forth above, Landlord shall have the right to sell the Premises for the price
and upon the terms set forth in the notice of the proposed sale referenced
above, free and clear of any further right of first refusal hereunder; provided,
such sale by Landlord is completed within six (6) months following the
expiration of the period during which Tenant could exercise its first right of
refusal hereunder. Upon sale of the Premises, all rights of the Tenant provided
for in this Article 22 shall terminate, and thereafter Tenant shall have no
further option or right of first refusal to purchase the Premises hereunder.
ARTICLE 23
ADDITIONAL PROVISIONS
23.1 TRANSFER OF LANDLORD'S INTEREST. In the event of a sale or conveyance by
Landlord of Landlord's interest in the Premises other than a transfer for
security purposes only, Landlord shall be relieved from and after the date
specified in any such notice of transfer of all obligations and liabilities
accruing thereafter on the part of Landlord, provided that any funds in the
hands of Landlord at the time of transfer in which Tenant has an interest shall
be delivered to the successor of Landlord. This Lease shall not be affected by
any such sale and Tenant agrees to attorn to the purchaser or assignee, provided
all Landlord's obligations hereunder are assumed in writing by the transferee.
23.2 CAPTIONS, ATTACHMENTS; DEFINED TERMS. The captions of the Articles and
Sections of this Lease are for convenience only and shall not be deemed to be
relevant in resolving any question of interpretation or construction of any
section of this Lease. Exhibits attached hereto, and addendums and schedules
initialed by the parties, are deemed by attachment to constitute part of this
Lease and are incorporated herein. The words "Landlord" and "Tenant" as used
herein shall include the plural as well as the singular. Words used in neuter
gender include the masculine and feminine, and words in the masculine or
feminine gender include the neuter. If there be more than one Landlord, the
obligations hereunder imposed upon Landlord shall be joint and several. The term
"Landlord" shall mean only the owner or owners at the time in question of the
fee title or a tenant's interest in a ground lease of the Premises or the
Premises. The obligations contained in this Lease to be performed by Landlord
shall be binding on Landlord's successors and assigns only during their
respective periods of ownership.
23.3 NOTICES. Wherever in this Lease it shall be required or permitted that
notice or demand be given or served by either party to this Lease to or on the
other, such notice or demand shall be given or served, and shall not be deemed
to have been duly given or served unless in writing and served personally or
forwarded by certified or registered mail, return receipt requested, addressed
to the addresses of the parties specified on the signature page hereto. Any
notice sent by certified or registered mail shall be deemed delivered on the
earlier of the third (3rd) day following deposit thereof with the United States
Postal Service or on the delivery date shown on the returned receipt prepared in
connection therewith. The delivery of any notice by the United States Postal
Service in the manner herein described shall have the same force and effect as
personal delivery thereof, and Tenant hereby waives
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the benefit of any statute, ordinance or judicial decision, now or hereafter in
effect, which requires that any notice be personally served or delivered to
Tenant. Either party may change such address by written notice to the other.
23.4 SEVERABILITY. If any term or provision of this Lease shall to any extent
be determined by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Lease shall not be affected thereby, and
each term and provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law; it is the intention of the parties hereto that
if any provision of this Lease is capable of two constructions, one of which
would render the provision void and the other of which would render the
provision valid, then the provision shall have the meaning that renders it
valid.
23.5 ATTORNEY'S FEES. In any dispute between the parties, whether or not
resulting in litigation or any appeal therefrom, the prevailing party shall be
entitled to recover from the other party all reasonable costs, including without
limitation reasonable attorney's fees. "Prevailing parties" shall include
without limitation (i) the party who dismisses an action in exchange for sums
allegedly due, (ii) the party who receives performance from the other party of
an alleged breach of covenant or a desired remedy where such performance is
substantially equal to the relief sought in an action, or (iii) the party
determined to be the prevailing party by a court of law.
23.6 TIME; JOINT AND SEVERAL LIABILITY. Time is of the essence of this Lease
and each and every provision hereof, except as to the conditions relating to the
delivery of possession of the Premises to Tenant. All the terms, covenants, and
conditions contained in this Lease to be performed by Tenant shall be deemed to
be joint and several obligations of each Tenant, and all rights and remedies of
the parties shall be cumulative and nonexclusive of any other remedy at law or
in equity.
23.7 BINDING EFFECT; CHOICE OF LAW. The parties hereto agree that all the
provisions hereof are to be construed as both covenants and conditions as though
the words importing such covenants and conditions were used in each separate
paragraph hereof. Subject to any provisions hereof restricting assignment or
subletting by Tenant and subject to Section 22.1 hereof, all of the provisions
hereof shall bind and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors, and assigns. This Lease
shall be governed by the laws of the State of California.
23.8 WAIVER. No covenant, term, condition or the breach thereof shall be
deemed waived, except by written consent of the party against whom the waiver is
claimed, and any waiver of the breach of any covenant, term, or condition shall
not be deemed to be a waiver of any other covenant, term, or condition.
Acceptance by Landlord of any performance by Tenant after the time the same
shall have become due shall not constitute a waiver by Landlord of the breach or
default of any covenant, term, or condition, unless otherwise expressly agreed
to by Landlord in writing.
23.9 SURRENDER OF PREMISES. The voluntary or other surrender of this Lease by
Tenant or a mutual cancellation thereof shall not work a merger, and shall, at
the option of Landlord, terminate all or any existing subleases or subtenancies,
or may, at the option of Landlord, operate as an assignment to it of any or all
such subleases or subtenancies.
23.10 HOLDING OVER. If Tenant or anyone claiming under Tenant shall, with or
without the written consent of Landlord, hold over after the expiration or
earlier termination of the term
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of this Lease or any extended term, such tenancy shall be a month-to-month
tenancy, which tenancy may be terminated as provided by law. During such tenancy
Tenant agrees to be bound by all of the terms, covenants, and conditions as
herein specified and to pay to Landlord (i) 150% of the then current rent under
the Lease, plus (ii) all other sums due under this Lease.
23.11 FORCE MAJEURE. Any prevention, delay, or stoppage due to strikes,
lockouts, labor disputes, acts of God, inability to obtain labor or materials or
reasonable substitutes therefor, governmental restrictions, governmental
regulations, governmental controls, enemy or hostile governmental action, civil
commotion, fire or other casualty, and other causes beyond the reasonable
control of the party obligated to perform, shall excuse the performance by such
party for a period equal to any such prevention, delay, or stoppage, except the
obligations imposed with regard to rent and other charges to be paid by Tenant
pursuant to this Lease.
23.12 RECORDING. Tenant shall not record this Lease without the prior written
consent of Landlord, which Landlord may withhold in its sole discretion. Tenant
agrees to execute and acknowledge a short form lease in recordable form at
Landlord's request, which may be recorded by Landlord.
23.13 LANDLORD'S CONSENT. Landlord's consent to or approval of any act by
Tenant requiring Landlord's consent or approval shall not be deemed to render
unnecessary the obtaining of Landlord's consent to or approval of any subsequent
act by Tenant, whether or not similar to the acts previously consented to or
approved. Except as otherwise specifically provided, whenever Landlord's consent
is required under this Lease, Landlord may grant or withhold such consent in the
exercise of Landlord's sole discretion. No standard of reasonableness shall
apply to Landlord in granting or denying such consent.
23.14 RELATIONSHIPS. Nothing in this Lease shall be construed as creating the
relationship of principal and agent or a partnership or of a joint venture
between Landlord and Tenant, it being understood and agreed that neither the
method of computation of rent, nor any other provision contained herein, nor any
acts of the parties, shall be deemed to create any relationship between the
parties other than the relationship of Landlord and Tenant.
23.15 PAYMENTS AND INTEREST. All payments hereunder shall be made in lawful
money of the United States. All payments requiring proration shall be prorated
on the basis of a thirty (30) day month. As used in this Lease, the term
"Overdue Rate" means a per annum interest rate equal to the maximum interest
rate allowed under the usury laws of the state in which the Premises are located
in effect as of the date such interest rate is to be calculated. Landlord shall
be entitled to collect interest at the Overdue Rate on any delinquent rent,
charges or other amounts payable by Tenant under this Lease, from the due date
thereof (or in the case of payments made by Landlord on behalf of Tenant,
including but not only limited to Real Property Taxes, Common Area Expenses and
Landlord's Insurance, on the date of payment by Landlord) until the date such
rent, charges or other amounts are actually paid by Tenant.
23.16 SURVIVAL OF TENANT'S OBLIGATIONS. All of Tenant's indemnities, waivers,
assumptions of liability, duties and obligations hereunder shall survive the
expiration or other termination of this Lease, whether by expiration of time,
operation of law or otherwise, to the extent required for the full observance
and performance thereof.
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23.17 ENTIRE AGREEMENT. THIS INSTRUMENT ALONG WITH ANY EXHIBITS AND ATTACHMENTS
HERETO CONSTITUTES THE ENTIRE AGREEMENT BETWEEN LANDLORD AND TENANT RELATIVE TO
THE PREMISES AND THIS AGREEMENT, AND THE EXHIBITS AND ATTACHMENTS MAY BE
ALTERED, AMENDED, OR REVOKED ONLY BY AN INSTRUMENT IN WRITING SIGNED BY BOTH
LANDLORD AND TENANT. IT IS UNDERSTOOD THAT THERE ARE NO ORAL AGREEMENTS OR
REPRESENTATIONS BETWEEN THE PARTIES HERETO AFFECTING THIS LEASE, AND THIS LEASE
SUPERSEDES AND CANCELS ANY AND ALL PREVIOUS NEGOTIATIONS, ARRANGEMENTS,
BROCHURES, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, IF ANY, BETWEEN THE
PARTIES HERETO, AND NONE THEREOF SHALL BE USED TO INTERPRET OR CONSTRUE THIS
LEASE. THERE ARE NO OTHER REPRESENTATIONS OR WARRANTIES BETWEEN THE PARTIES OR
THE PARTIES AND THEIR AGENTS 0R REPRESENTATIVES AND ALL RELIANCE WITH RESPECT TO
REPRESENTATIONS IS SOLELY UPON THE REPRESENTATIONS AND AGREEMENTS CONTAINED IN
THIS DOCUMENT.
ARTICLE 24
BROKER COMMISSIONS
Both Landlord and Tenant warrant to one another that no commission is
owed to or claimed by any person as a result of this Lease, other than to Xx
Xxxxxx, real estate agent. Landlord and Tenant agree to indemnify, defend and
hold harmless the other party against all liability, damages, costs and
attorneys' fees arising from any claim for commissions made by any person
through them.
ARTICLE 25
REMOVAL OF TENANT'S PERSONAL PROPERTY
Provided Tenant is not then in default hereunder, Tenant shall have the
right, at any time during the term of this Lease, to remove "Tenant's Property,"
consisting of machinery, trade equipment, business and trade fixtures, and other
trade equipment placed, installed, supplied or made by it in or on the Premises
at Tenant's cost and expense (without any contribution or reimbursement therefor
by Landlord), and which may be removed without material injury to the Premises;
provided, however, that any damage to the Premises or any part thereof
occasioned by such removal shall be repaired by Tenant at Tenant's cost and
expense. As used herein and hereafter, the term "Tenant's Property" shall not
include or be deemed to include any item now or hereafter installed in or on the
Premises that is an integral part of the building, including without limiting
the generality of the foregoing, heating, ventilating, and air-conditioning
plants and systems, electrical and plumbing fixtures and systems and other like
equipment and fixtures, if any.
TENANT: LANDLORD:
BOYS TOYS, INC.,
A CALIFORNIA CORPORATION CAFE ROMA, INC.
By: /s/ [ILLEGIBLE] By: /s/ Xxxxx Xxxx
----------------------------------- ---------------------------------
President Xxxxx Xxxx
Address: 0000 Xxxxxxxxxx Xxx Xx. Address: 00 Xxxxxxxxxx Xx
------------------------------ ----------------------------
Xxxxx 000 Xxxx Xxxx XX
------------------------------ ----------------------------
Xxx Xxxxx, Xx 00000 94014
------------------------------ ----------------------------
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EXHIBIT "A"
INITIAL TENANT IMPROVEMENTS
EXHIBIT "A"
TENANT IMPROVEMENTS TO
000 XXXXXXXX, XXX XXXXXXXXX, XXXXXXXXXX
Prior to the build-out, demolition of a substantial portion of what exists
within the Premises shall be necessary and involve the following:
1. Removal of all mechanical and electrical systems.
2. Removal of most of the above slab plumbing and gas piping systems
back to the point of service entry.
3. Removal of most of the fire sprinkler system back to the
standpipe.
4. Removal of a portion of existing raised platforms, all bars and
food service fixtures, and all stairs, walls and partitions
throughout, with minor exceptions.
5. Removal of the entire roof structure over the single story bay of
the building.
6. Portions of the facade of the building and specific walls or roof
areas where new means of support shall be constructed so as to
remove obstacles to the effective operation of the club.
Improvements made during the build-out shall include but not be limited to the
following:
7. A complete renovation of 100% of the post demolition structural
shell.
8. New second floor areas totalling approximately 1998 square feet.
9. A new facade and entry for the building which is to be two stories
in height across its full width.
10. New entry lobby, display platforms, an elevator accessible to the
handicapped and 2 fire-rated stairways for second floor egress.
11. Structural improvements throughout the building to meet current
seismic upgrade requirements.
12. New kitchen and bar facilities with vent hood, walk-in cooler,
dishwashing and prep areas, storage and service stations.
13. New seating areas with platforms and stages, built-in seating,
handrails and low partitions.
14. A XX xxxxx that will control lighting and sound for the entire
Premises and four stages.
15. Ceiling, wall and floor finishes throughout the Premises.
16. Locker facilities and toilet rooms for male and female staff as
well as for entertainers.
17. New restrooms for the public and individual handicapped accessible
restrooms for both sexes.
18. A new service stair for staff use between floors.
19. New HVAC systems that will provide heating and cooling for the
entire Premises.
20. New electrical system including all house and stage lighting,
power distribution for all equipment and subsystems beyond the
transformer.
21. New plumbing and fire sprinkler piping for the entire club,
including a grease trap.
22. New doors, windows, skylights, hardware and emergency exit
lighting throughout the Premises.
23. New drywall walls, carpentry, millwork, etc. throughout the
Premises.
24. New telephone security, video surveillance point of sale, lighting
and environmental control systems.
The owner/landlord will be responsible for the following during the construction
phase:
25. New transformer room and transformer to be installed by PG&E at
the front of, and within the existing shell.
26. New roof over the entire Premises area, including repairs as might
be needed to existing structure as well as new constructions.
2
AMENDMENT TO BAYSIDE VILLAGE RESIDENTIAL LEASE
THIS AMENDMENT TO BAYSIDE VILLAGE RESIDENTIAL LEASE is made and entered
into as of APRIL 21, 1999, by and between BAYSIDE VILLAGE ASSOCIATES, a
partnership ("Bayside Village") and Xxxxxxxxx.xxx, INC. BY XXXXX XXXXX AND
XXXXXXX XXXXXX ("Resident").
Bayside Village and Resident have entered into that certain Bayside
Village Residential Lease dated MARCH 11, 1999 (the "Lease") with respect to
Suite No. 406 at FOUR BAYSIDE VILLAGE PLACE, San Francisco, California. Terms
used herein that are defined in the Lease shall have the meanings therein
defined. Bayside Village and Resident desire to amend the Lease in the manner
hereinafter provided, and, accordingly Bayside Village and Resident hereby agree
as follows:
1. AMENDMENT TO PARAGRAPH 4.
Paragraph 4 of the Lease is hereby amended to read as follows:
"4. PARKING: Commencing on APRIL 21, 1999, and continuing during the term
of this Lease, Resident shall have the right to occupy 1 parking space(s)
located in the underground parking garage. Bayside Village reserves the
right to change from time to time the location of Resident's designated
parking space. Resident agrees to pay as additional rent the sum of ONE
HUNDRED FIFTY Dollars ($150.00) per month to Bayside Village for rent for
such parking space. Such rent shall be paid at the time and in the manner
provided for payment of rent under paragraph 3 of the Lease. Resident may
terminate rental of this parking space by giving Bayside Village not less
than 3O DAYS' WRITTEN NOTICE of such termination. Use of said parking
space shall be at the sole risk of Resident, and without limiting the
generality of the foregoing, to the maximum extent permitted by law,
Bayside Village shall not have, and Resident agrees to indemnify Bayside
Village against, any liability to Resident or any other person, including
attorney's fees, for any damage to or loss or theft of any automobile or
other property (including property of Resident), or injury to or death of
any person (including Resident and Resident's family, agents, employees,
visitors or licensees), arising directly or indirectly out of or in any
way in connection with the use by Resident or Resident's family, agents,
employees, visitors or licensees of such parking space or any part of the
parking garage."
Except as specifically amended by the foregoing, the Lease remains in
full force and effect in accordance with its terms, unaffected hereby.
IN WITNESS WHEREOF, Bayside Village and Resident have executed duplicate
originals of the within Amendment to Bayside Village Residential Lease as of the
day and year first above written. Resident acknowledges receipt of a duplicate
original of this Amendment.
/s/ Xxxxx Xxxxx 4-21-99
------------------------------------- ---------------------------------------
Resident CEO Xxxxxxxx.xxx Date Resident Date
------------------------------------- ---------------------------------------
Resident Date Resident Date
BAYSIDE VILLAGE ASSOCIATES,
a partnership
By /s/ Xxxxx Xxxxxxxx 4-21-99
-----------------------------------
Date
