LEASE
Exhibit 10.15
This
Lease (this "Lease"), made as of January 2, 2007 between Xxxxxx Xxxxxxx (the
"Landlord") and Energy King, Inc., a California corporation
("Tenant").
The
parties hereto hereby agree as follows:
1. Premises; Term. The
Landlord is the owner of that certain real property commonly known as 0000
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, together with all improvements
constructed thereon, including the building (the "Building"), the parking and
loading areas, if any, and all easements, rights-of-way, and other rights
appurtenant thereto (collectively, the "Premises"). Landlord does hereby lease
to Tenant and Tenant hereby leases from Landlord the Premises for the period
from January 2, 2007 (the "Commencement Date") to December 31, 2007 (the
"Initial Term" and as such Initial Term may be extended, the "Term"), unless
sooner terminated or extended as provided herein, subject to the terms,
covenants, and agreements herein contained. Upon the expiration of the Initial
Term, the Term shall automatically be renewed for a period of one additional
year until December 31, 2008 (the "First Renewal Term"), unless Tenant or
Landlord notifies the other at least ninety (90) days in advance of the
expiration of the Initial Term that the Term shall not be extended.
Notwithstanding the foregoing, Tenant may terminate this Lease and the Term at
any time upon at least thirty (30) days prior notice to Landlord. A portion of
the Premises is currently used by Xxxxxx Xxxxxxx or Xxxxxx X. Xxxxxxx or their
affiliates for the storage of certain property under separate arrangements with
the Landlord. The parties agree that such persons may continue to use such
portion of the Premises solely for the storage of such property, but that the
Tenant shall not have any responsibility whatsoever with respect to such
property and such property shall be maintained on the Premises at the sole cost,
expense and risk of the Landlord and such persons. The Landlord shall cause (1)
such persons to waive any and all claims they may have at any time against the
Tenant with respect to any loss of or damage to such property and (ii) such
storage or any access to or removal of such property not to interfere with the
Tenant's business or use of the remainder of the Premises.
2. Use;
Compliance. Tenant shall not use and occupy the Premises for any
unlawful purpose. Tenant shall not make any use of the Premises that will
invalidate any policies of insurance now or hereafter carried on the Building.
Tenant will not do anything upon the Premises that would constitute a nuisance.
Tenant shall comply in all material respects with all applicable laws, statutes,
ordinances, rules and regulations relating to the Tenant's specific use (and not
mere occupancy) of the Premises.
3. Rent.
Tenant shall pay to Landlord monthly rent ("Rent") for each month during the
Term in the amount equal to $1,800 per month, provided, however, that the
monthly Rent shall be increased by five percent (5%) on the first day of the
First Renewal Term. Rent shall be payable in advance on the Commencement Date
and on the first day of each month. thereafter during the Term. lithe Term
commences on a day other than the first day of a month, or ends on a day other
than the last day of a month, then the Rent for such fractional month shall be
prorated on the basis of 1/30th of the monthly Rent for each day of such
fractional month.
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4. Utilities. Tenant
shall pay for all water, gas, electricity, telephone and other utilities used by
Tenant. If not separately metered or if used by other persons, the Landlord and
the Tenant shall mutually agree upon the portion of any such charges to be paid
by Tenant.
5. Taxes. Landlord shall be
responsible for paying and discharging all Real Property Taxes. As used herein,
the term "Real Property Taxes" shall mean any form of real estate tax or
assessment, general, special, ordinary or extraordinary, and any license fee,
rental tax, improvement bond or bonds, levy or tax imposed upon the Premises.
Tenant shall be responsible for paying all taxes levied against its personal
property and trade fixtures.
6. Repairs and
Maintenance. This Lease is a gross lease and that, except as
expressly provided in this Lease, Landlord at its sole cost and expense shall be
responsible for ensuring that the Premises comply with all applicable laws,
statutes, ordinances, rules and regulations and for all general and capital
maintenance, repair and replacement of the Building, and Premises and all
portions thereof. Without limiting the foregoing, Landlord, at its own expense,
shall keep the Building and the Premises, including without limitation all
parking areas, the roof, foundation, exterior and interior walls, common areas,
structural elements and components, Building systems, and all sewer and utility
lines serving the Building in good order and repair and perform and make such
repairs and replacement as shall be required to keep the Premises and the
Building in good condition and repair. At the expiration or other termination of
this Lease, Tenant shall surrender the Building and the Premises in as good
condition as when received, loss by fire or other casualty or ordinary wear and
tear, changes contemplated or permitted by this Lease or by Landlord and items
which Landlord is required to maintain, repair and replace excepted. Tenant
shall give Landlord notice of any maintenance, repair or replacement which
Tenant becomes aware, after which Landlord shall promptly commence and
diligently complete such maintenance, repairs or replacement within a reasonable
period of time. Tenant shall have the right to perform any required maintenance,
repairs and replacements if Landlord fails to promptly commence and complete the
same or if that Tenant has obtained Landlord's prior written approval, which
approval shall not be unreasonably withheld or delayed. In the event Tenant is
permitted to and performs any such work, Tenant shall be entitled, at Tenant's
option, to offset all or part of the cost from any Rent or other payments and/or
require Landlord to pay Tenant for all or part of the cost thereof upon
demand.
7. Alterations. Tenant
shall not make installations, alterations or additions in or to the Premises
without securing the prior written consent of Landlord, which consent shall not
be unreasonably withheld or delayed; provided, however, Tenant shall have the
right, without obtaining Landlord's consent, to install trade fixtures or
otherwise perform any such work that does not permanently affect the Building's
systems or structure. Unless Landlord notifies the Tenant to the contrary at the
time of its approval of any installations, alterations or additions or, if no
approval is required, prior to the time of Tenant's making of any installations,
alterations or additions, no installations, alterations or additions shall be
required to be removed by Tenant and the Premises shall not be required to be
restored to their prior condition upon any termination or expiration of this
Lease and Tenant may, at its option, either leave such items at the Premises or
remove such items and restore the Premises to their prior
condition.
8. No Liens.
Nothing contained in this Lease shall authorize Tenant to in any way encumber
Landlord's title to the Premises, and any claim to a lien arising from any act
or omission of Tenant shall attach only against Tenant's interest and shall in
all respects be subordinate to Landlord's title. If Tenant has not removed,
bonded or otherwise insured over to Landlord's reasonable satisfaction any such
unpermitted encumbrance within thirty (30) days after written notice to Tenant
by Landlord, Landlord may, but shall not be obligated to, pay the amount
necessary to remove such encumbrance, and the amount so paid, together with all
reasonable costs and expenses incurred by Landlord in connection therewith,
shall be deemed additional Rent payable upon demand.
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9. Casualt . If
the Premises shall be damaged by fire or other casualty (any of the foregoing, a
"Casualty"), Landlord shall cause the Premises to be repaired and restored
substantially to the same condition existing prior to the Casualty within sixty
(60) days; provided, however, that if such repairs and restoration are
reasonably expected to take in excess of sixty (60) days, or if Tenant
determines in good faith that it is desirable or necessary to terminate the
Lease because its use of any part of the Premises has been adversely affected,
then either Landlord or Tenant shall have the right to terminate this Lease as
of the date of such Casualty upon notice to such effect to the other and Tenant
shall pay Rent, which shall be equitable abated as provided below, only for such
period of time as Tenant continues to occupy the Premises. If Tenant is unable
to use any portion of the Premises for substantially the same purposes and to
substantially the same extent as prior to such Casualty, the Rent shall be
equitably abated until Landlord shall have completed the required repairs or
restorations. Any excess proceeds of any insurance carried by Landlord which
remain after the completion of any repair or restoration may be retained by
Landlord.
10. Property
Insurance. Tenant shall obtain and maintain in force and effect
during the Term hereof such insurance as it desires on its own fixtures and
personal property. Landlord shall obtain and maintain at Landlord's expense, in
full force and effect throughout the Term for the mutual benefit of Landlord and
Tenant, fire and extended coverage insurance on the Building in an. amount equal
to the full insurable value of the Building (subject to self-insurance,
deductibles and self- insured risk retentions in amounts not to exceed those
maintained by persons with similar financial conditions engaged in similar
businesses). Landlord and Tenant each hereby waive any and every claim for
recovery from the other for any and all loss of or damage to the Building or
Premises or to the contents thereof (including Tenant's personal property),
which loss or damage is covered, is required under this Lease to be covered or
can be covered by physical damage insurance policies (including without
limitation any claim for recovery of any self-insurance, deductibles or
self-insured risk retentions). Inasmuch as this mutual waiver will preclude the
assignment of any such claim by subrogation (or otherwise) to an insurance
company (or any other person), Landlord and Tenant each agree to give to each
insurance company which has issued, or in the future may issue, to it policies
of physical damage insurance, written notice of the terms of this mutual waiver
and to have said insurance policies properly endorsed, if necessary, to prevent
the invalidation. of said insurance coverage by reason of said waiver and to
provide that such insurance may not be cancelled or materially and adversely
charged without at least ten (10) days prior notice to the other party hereto.
Upon request, Landlord and Tenant shall deliver to the other certificates of
insurance or copies of insurance policies (if requested) evidencing the coverage
and endorsements.
11. Other
Insurance. Each of Landlord and Tenant shall obtain and maintain
during the Term comprehensive public liability insurance with limits similar to,
and subject to self-insurance, deductibles and self-insured risk retentions in
amounts not to exceed, those maintained by persons with similar financial
conditions engaged in similar businesses. Tenant shall also obtain and maintain
worker's compensation insurance in accordance with all statutory requirements.
All such liability policies shall include an endorsement which names the other
as an additional insured and provides that such insurance may not be cancelled
or materially and adversely modified without at least ten (10) days prior notice
to the other party hereto. Upon request, Landlord and Tenant shall deliver to
the other certificates of insurance or copies of insurance policies (if
requested) evidencing the coverages and endorsements required
above.
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12. Condemnation.
If (i) all or any part of the Premises shall be taken or condemned by any
authority for any public or quasi-public use or purpose or if any adjacent
property or street shall be condemned or improved in such manner as to require
or adversely affect the use of any part of the Premises and (ii) Tenant
determines in good faith that it is desirable or necessary to terminate this
Lease because such action will adversely affect Tenant's use of the Premises or
ingress and egress thereto, then either Landlord or Tenant shall have the right
to terminate this Lease upon written notice to the other as of the date when the
possession of the part so taken shall be required for such use or purpose.
Landlord shall be entitled to receive the portion of any award not attributed to
the value of Tenant's trade fixtures and equipment, loss of business, or
Tenant's moving and relocation expenses. If this Lease is terminated, Rent shall
be apportioned as of the date of such termination. If this Lease is not
terminated, Rent shall be equitably adjusted as of the date of any taking or
condemnation.
13. Default by
Tenant. If (i) default shall be made in the payment of the Rent or
in the payment of any other sum required to be paid by Tenant under this Lease
and such default shall continue for ten (10) business days after Tenant's
receipt of written notice from Landlord, (ii) Tenant shall fail to perform in
all material respects any of the other covenants which Tenant is required to
perform and such default shall continue for thirty (30) days after written
notice to Tenant from Landlord, provided, however, if such default cannot be
reasonably cured within said thirty (30) day period Tenant shall not be in
default if Tenant promptly commences to cure the default and thereafter
diligently continues such efforts to cure the default, (iii) Tenant shall make a general assignment for the benefit of
its creditors or shall file a voluntary petition for bankruptcy or other
reorganization, arrangement, conservation, liquidation, dissolution or similar
relief, or (iv) any proceeding is filed against Tenant seeking any relief
mentioned or similar to that referred to in (iii) above and said proceeding is
not discharged within thirty (30) days of the filing thereof or Tenant consents,
acquiesces, admits or otherwise approves or agrees to any such proceeding or
such relief, then Landlord may treat the occurrence of any one or more of the
foregoing events as a breach of this Lease, and thereupon at its option may,
with notice to Tenant, may terminate this Lease and the Term created hereby and
recover any sum of money or damages owed by Tenant to Landlord,
14. Default by
Landlord. If (i) default shall be made in the payment of any sum
required to be paid by Landlord under this Lease and such default shall continue
for ten (10) business days after Landlord's receipt of written notice from
Tenant or (ii) Landlord shall fail to perform in all material respects any of
the other covenants which Landlord is required to perform and such default shall
continue for thirty (30) days after written notice to Landlord, provided,
however, if such default cannot be reasonably cured within said thirty (30) day
period Landlord shall not be in default if Landlord promptly commences to cure
the default and thereafter diligently continues such efforts to cure the
default, then Tenant may, without limiting its rights or remedies as a result of
such default, treat the occurrence of any one or more of the foregoing events as
a breach of this Lease, and thereupon at its option may, with notice to
Landlord, terminate this Lease. In addition, in the event Landlord does not
perform any of its obligations under this Lease, Tenant also shall have the
right, but not the obligation, upon notice to the Landlord to perform such
obligations. Without limiting foregoing, in the event of an emergency or other
event that may result in physical injury or any damage to property, Tenant may
(but shall not be required to), at its option, immediately commence to perform
Landlord's obligations if Landlord. does not immediately commence such
performance following notice from Tenant. Any and all reasonable costs and
expenses incurred by Tenant in the performance of any of Landlord's obligations
shall be due and payable by Landlord to Tenant upon demand. Without limiting any
of its rights or remedies, Tenant may setoff or reduce any and all future
payments of Rent or other amounts due under this Lease until such costs and
expenses are fully reimbursed to Tenant. The parties hereby agree that the
exercise of any of Tenant's set-off rights under this Lease shall not be deemed
a default or breach under any term of this Lease.
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15. Surrender. On
or before the date this Lease and the Term hereby created expires, or promptly
following the date this Lease is terminated, Tenant shall remove from the
Premises all of Tenant's personal property and surrender possession of the
Premises to Landlord, free of all rubbish and debris created by
Tenant.
16. Holding Over.
In the event that Tenant fails to surrender possession of the Premises after the
expiration or termination of the Term, Tenant shall be deemed to be occupying
the Premises on a month-to-month tenancy, subject to the other terms and
conditions of this Lease, but the provisions of this Article shall not be a
waiver by Landlord of any right to terminate this Lease or of re-entry, nor
shall the receipt of any Rent operate as a waiver of such rights.
17. Estoppel. From
time to time, within fifteen (15) days of any request by the other party hereto,
Landlord and Tenant shall deliver a written statement certifying (a) that this
Lease is unmodified and in full force and effect (or if there have been
modifications that the Lease as modified is in full force and effect and
identifying any such modifications), (b) the dates to which the Rent and other
charges have been paid, (c) that neither such party nor, to the knowledge of
such party, the other party hereto is in default under this Lease, or, if in
default, the nature thereof in reasonable detail, (d) that to the knowledge of
such party there are no offsets or defenses to the payment of Rent, additional
rent or any other sums payable under this Lease or, if there are any such
offsets or defenses, specifying such in reasonable detail, and (e) such further
matters as may be reasonably requested by the requesting party.
18. Assignment.
Tenant shall not, without the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed, assign, convey, sublet, mortgage,
pledge or otherwise transfer this Lease, or any part thereof, or any interest
hereunder.
19. Notice. In
every instance where it shall be necessary or desirable for Landlord or Tenant
to serve any notice or demand upon the other, such notice or demand shall be
sent by United States registered or certified mail, postage prepaid, courier
service or personal delivery. Notices and demands shall be addressed to Landlord
at the place where rental under this Lease is then being paid or such other
address as Landlord may have specified for notices. Any notices and demands
shall be addressed to Tenant at the Premises or to such other address as Tenant
may have specified for notices. Notice sent as aforesaid shall be deemed to have
been served at the time the same is delivered or refused.
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20. Subordination. The rights of
Tenant under this Lease shall be subordinate at all times to all ground leases and underlying leases,
if any, now or hereafter in force against the Premises, and to the lien of any
mortgages or deeds of trust now or hereafter in force against such leases, the
Premises or the Building. Notwithstanding the foregoing, the foregoing
subordination is expressly conditioned upon Landlord obtaining from any such
lessor, mortgagee or trustee and delivering to Tenant a non- disturbance
agreement in form and substance reasonably satisfactory to Tenant.
21. Miscellaneous.
(A) All of
the representations and obligations of Landlord and Tenant with respect to the
subject matter of this Lease are contained herein. Headings in this Lease arc
solely for convenience of reference and shall not in any way limit or amplify
the terms and provisions hereof.
(B) No
modification, waiver or amendment of any provision of this Lease shall be
binding unless in writing signed by Landlord and Tenant or by a duly authorized
officer or agent of Landlord or Tenant empowered by a written authority signed
by Landlord or Tenant, as the case may be. No waiver of any provision of this
Lease shall be implied by any failure of Landlord or Tenant to enforce any
remedy on account of the violation of such provision. No waiver shall be
effective unless in writing, and no express waiver shall affect any provision
other than the one specified in such waiver and that then only for the time and
in the manner specifically stated.
(C) Each of
the provisions of this Lease shall be binding upon and inure to the benefit of
Landlord and of Tenant and their respective heirs, legal representatives,
successors and assigns. The laws of the State of California are located shall
govern the validity, performance and enforcement of this Lease. The invalidity
or unenforceability of any provision of this Lease shall not invalidate or
otherwise impair any other provision.
(D) So long
as Tenant is not in default in any material respect hereunder beyond any
applicable notice or grace period, Tenant shall during the Term hereof
peacefully and quietly enjoy the Premises without hindrance by Landlord, or by
anyone claiming by, through or under Landlord. Landlord hereby waives any
statutory or common law lien it may have in any of Tenant's personal property.
From time to time, Landlord shall execute any documents Tenant or Tenant's
lenders may request to evidence or confirm such waiver.
IN
WITNESS WHEREOF, the undersigned have entered into this Lease as of the date
first written above.
| LANDLORD: | TENANT: |
|
/s/
Xxxxxx
Xxxxxxx
Xxxxxx Xxxxxxx
|
ENERGY
KING, INC.
By: _______________________________
Name: _____________________________
Title:
______________________________
|
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