SUBLEASE AND CONSENT
SUBLEASE AND CONSENT
THIS SUBLEASE AND CONSENT ("Sublease") is made as of ______________,
19____, by and between Xxxxxxx X. XxXxxxxx, Xx., an individual ("Tenant"),
having an address at 000 Xxxxxx Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000
("Sublessee"), having an address at Golden State Vintners, A California
Corporation, 00 X. Xxx Xxxxxxx Xxxxx Xxxx., Xxxxxxxx, XX 00000 and 000 Xxx
Xxxxxxx Xxxxx Xxxxxxxxx, Inc., a Florida not-for-profit corporation
("Landlord"), having an address at 000 Xxxxxx Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000.
A. Landlord or its predecessor in interest, and Tenant or its predecessor
in interest, have heretofore entered into that certain lease dated January 30,
1997, for premises (the "Premises") described as Suite(s), or Room(s)
_______________ initially containing approximately 5,131 square feet in the
property (the "Building") known as Drakes Landing Office Center, located at
000 Xxxxxx Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000 which lease has heretofore been
amended or assigned by instruments dated __________________ (collectively, the
"Master Lease").
B. Sublessee desires to obtain space in the Building, Tenant desires to
sublease space to Sublessee, and Landlord is willing to approve the same, all on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the parties hereto
agree as follows:
1. Tenant shall sublease to Sublessee and Sublessee shall sublease from
Tenant approximately SEE EXHIBIT A rentable square feet of the Premises, as more
fully described in Exhibit "A" attached hereto (the "Sublease Premises").
2. The term of this Sublease shall commence on January 1, 1998, (the
"Commencement Date") and terminate on May 31, 2000, (the "Expiration Date"),
unless sooner terminated, subject to Section 9, below.
3. Sublessee shall pay Tenant as basic rent Eight Thousand Two Hundred
Dollars ($8,200.00), per month, in advance on the first day of each month,
commencing on January 1, 1998, and continuing each month thereafter during the
term of this Sublease, and Sublessee shall pay all other sums due as additional
rental under the provisions of the Master Lease on the basic rental payment due
date first occurring after the additional rental payment arises. Any such
additional rental obligations shall be prorated based on the ratio of the
rentable square footage of the Sublease Premises to the rentable square footage
of the Premises.
4. Tenant hereby acknowledges receipt of the sum of Eight Thousand
Dollars ($82,000) as a security deposit for the full and faithful performance of
each and every provision of this Sublease to be performed by Sublessee. If
Sublessee shall fully and faithfully perform every provision of this Sublease to
be performed by Sublessee, said Security Deposit shall be reassigned to
Sublessee at the expiration of the term of this Sublease. It is understood by
the parties hereto that Tenant shall not be required to keep said Security
Deposit separate from its funds and Sublessee shall not be entitled to any
interest on the Security Deposit.
5. Sublessee shall perform and observe the terms and conditions to be
performed on the part of Tenant under the provisions of the Master Lease, except
for the payment of rent, and shall indemnify Tenant and Landlord against all
claims, damages, costs and expenses arising out of Sublessee's failure to
perform or observe any such terms or conditions, subject however to all the
express terms and conditions of this Sublease. If Sublessee shall default
hereunder and not cure within the times permitted for cure of such default under
the Master Lease, Tenant shall have all remedies against Sublessee provided for
Landlord under the Master Lease, and if such default shall constitute a default
under the Master Lease, Landlord shall have all remedies available to Landlord
thereunder.
6. This Sublease shall be of no force or effect unless and until executed
and delivered by all parties hereto. No provision of this Sublease may be
amended except in writing signed by all parties hereto or their successors. By
execution hereof, Tenant ratifies the Master Lease and Sublessee acknowledges
that it has received a complete and correct copy of the Master Lease and is
familiar with the terms thereof.
7. Neither the Master Lease, nor this Sublease shall be deemed to grant
Sublessee any rights whatsoever against Landlord. Sublessee hereby acknowledges
and agrees that its sole remedy for any alleged or actual breach of its rights
in connection with the Sublease Premises (as defined in the Sublease) shall be
solely against Tenant.
8. This Sublease shall not release Tenant from any existing or future
duty, obligation or liability to Landlord pursuant to the Master Lease, nor
shall this Sublease change, modify or amend the Master Lease in any manner. In
particular, without prejudice to the generality of the foregoing, this Sublease
shall not absolve Tenant from the requirement set forth in the Master Lease that
Tenant obtain Landlord's prior written approval for any further subleases.
9. (a) In the event of Master Lease Termination (as hereinafter defined)
prior to the termination of this Sublease, at Landlord's option, Sublessee
agrees to attorn to Landlord and to recognize Landlord as Sublessee's landlord
under this Sublease, upon the terms and conditions and at the rental rate
specified in this Sublease, and for the then remaining term of this Sublease,
except that Landlord shall not be bound by any provision of this Sublease which
in any way increases Landlord's duties, obligations or liabilities to Sublessee
beyond those owed to Tenant under the Master Lease. Sublessee agrees to execute
and deliver at any time and from time to time, upon the request of Landlord, any
instruments which may be necessary or appropriate to evidence such attornment.
Landlord shall not (i) be liable to Sublessee for any act, omission or breach of
this Sublease by Tenant, (ii) be subject to any offsets or defenses which
Sublessee might have against Tenant, (iii) be bound by any rent or additional
rent which Sublessee might have paid in advance to Tenant, or (iv) be bound to
honor any rights of Sublessee in any security deposit made with Tenant except to
the extent Tenant has turned over such security deposit to Landlord. Tenant
hereby agrees that in the event of Master Lease Termination, Tenant shall
immediately pay or transfer to Landlord any security deposits, rent or other
sums then held by Tenant.
(b) "Master Lease Termination" means any event, which by voluntary or
involuntary act or by operation of law, might cause or permit the Master Lease
to be terminated, expire, be canceled, be foreclosed against, or otherwise come
to an end, including but not limited to (1) a default by Tenant under the Master
Lease of any of the terms or provisions thereof; (2) foreclosure proceedings
brought by the holder of any mortgage or trust deed to which the Master Lease is
subject; or (3) the termination of Tenant's leasehold estate by dispossession
proceeding or otherwise.
(c) In the event of attornment hereunder, landlord's liability shall
be limited to matters arising during Landlord's ownership of the Building, and
in the event that Landlord (or any successor owner) shall convey or dispose of
the Building to another party, such party shall thereupon be and become landlord
hereunder and shall be deemed to have fully assumed and be liable for all
obligations under this Sublease to be performed by Landlord which first arise
after the date of conveyance, including the return of any security deposit, and
Tenant shall attorn to such other party, and Landlord (or such successor owner)
shall, from and after the date of conveyance, be free of all liabilities and
obligations hereunder not then incurred. The liability of Landlord to Sublessee
for any default by Landlord under this Sublease after such attornment, or
arising in connection with Landlord's operation, management, leasing,
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repair, renovation, alteration, or any other matter relating to the Building or
the Sublease Premises, shall be limited to the interest of the Landlord in the
Building (and proceeds thereof). Under no circumstances shall any present or
future general partner of Landlord (if Landlord is a partnership), or individual
trustee or beneficiary (if Landlord or any partner of Landlord is a trust) have
any liability for the performance of Landlord's obligations under this Sublease.
10. In addition to Landlord's rights under Section 9 hereof, in the event
Tenant is in default under any of the terms and provisions of the Master Lease,
Landlord may elect to receive directly from Sublessee all sums due or payable to
Tenant by Sublessee pursuant to this Sublease, and upon receipt of Landlord's
notice, Sublessee shall thereafter pay Landlord any sums becoming due or payable
under this Sublease, and Tenant shall receive from Landlord a corresponding
credit for such sums against any and all payments then due or thereafter
becoming due from Tenant. Neither the service of such written notice nor the
receipt of such direct payments shall cause Landlord to assume any of Tenant's
duties, obligations and/or liabilities under this Sublease, nor shall such event
impose upon Landlord the duty or obligation to honor this Sublease, nor
subsequently to accept Sublessee's attornment pursuant to Section 9(a) hereof.
11. Sublessee hereby acknowledges that it has read and has knowledge of
all of the terms, provisions, rules and regulations of the Master Lease and
agrees not to do or omit to do anything which would cause Tenant to be in breach
of the Master Lease. Any such act or omission shall also constitute a breach of
this Sublease entitling Landlord to recover any damage, loss, cost or expense
which it thereby suffers, from Sublessee, whether or not Landlord proceeds
against Tenant. If the Master Lease requires the payment of percentage rent,
based on a percentage of gross sales or other sales in or from the Premises,
Sublessee shall comply with all provisions of the Master Lease respecting the
same, including without limitation, all requirements concerning the keeping of
books, records, and other items, and reporting of gross sales to Landlord. In
such case, Sublessee's sale shall be included in Tenant's gross sales for
purposes of computing Tenant's percentage rent obligations under the Master
Lease.
12. In the event of any litigation between the parties hereto with respect
to the subject matter hereof, the unsuccessful party agrees to pay to the
successful party all costs, expenses and reasonable attorneys' fee incurred
therein by the successful party, which shall be included as a part of a judgment
rendered therein.
13. This Sublease shall be binding upon and inure to the benefit of the
parties' respective successors and assigns, subject at all times, to all
agreements and restrictions contained in the Master Lease, and herein, with
respect to subleasing, assignment, or other transfer. The agreements contained
herein constitute the entire understanding between the parties with respect to
the subject matter hereof, and supersede all prior agreements written or oral,
inconsistent herewith. This Sublease may be amended only in writing, signed by
all parties hereto.
14. Notices required or desired to be given hereunder shall be effective
either upon personal delivery on three (3) days after deposit in the United
States mail, by certified mail, return receipt requested, addressed to the
parties at the addresses set forth above. Any party may change its address for
notice by giving notice in the manner hereinabove provided.
15. In order to help reimburse Landlord's legal and administrative
expenses in reviewing this Sublease Tenant shall have paid before or
contemporaneously with its submission hereof for Landlord's review the
non-refundable amount of Three Hundred and no/100 Dollars ($300.00) (the
"Submission Fee"). Landlord's acceptance of such Submission Fee shall impose no
duty or obligation upon Landlord to consent to the transaction contemplated
herein nor to execute this Sublease. In the event that the foregoing Submission
Fee has not been submitted before or contemporaneously with this Sublease, it
shall become due as an additional rental obligation under the Master Lease,
payable upon demand by
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Landlord, and shall become the joint and several obligation of the Tenant, and
in the event this Sublease is executed by Landlord, of Sublessee. Tenant shall
also promptly pay Landlord any share of subleasing premiums or profits, or other
items, required under the Master Lease in connection with sublease approvals.
16. Notwithstanding anything to the contrary set forth herein or
elsewhere, if the Master Lease was guaranteed at the time of execution or at any
time prior hereto by any guarantor, then Landlord may at any time hereafter
declare all of its agreements in this Sublease to be null and void and of no
force and effect unless and until Landlord receives a counterpart of this
Sublease indicating the approval thereof by any and all such guarantor(s) and
their spouses.
17. Tenant and Sublessee agree to indemnify and hold Landlord harmless
from and against any loss, cost, expense, damage or liability, including
reasonable attorneys' fees, incurred as a result of a claim by any person or
entity (i) that it is entitled to a commission, finder's fee or like payment in
connection with this Sublease or (ii) relating to or arising out of this
Sublease or any related agreement or dealings.
18. Tenant agrees to hold any and all payments due under this Sublease as
a trust fund to be applied first to the satisfaction of all of Tenant's
obligations under the Master Lease and hereunder, before using any part thereof
for any other purpose.
19. Sublessee has inspected the Sublease Premises and agrees to accept the
same "as is" without any agreements, representations, understandings or
obligations on the part of Tenant to perform any alterations repairs or
improvements except as expressly provided in any separate agreement that may be
signed by their parties in connection herewith. Any construction, alterations
or improvements made to the Sublease Premises by Sublessee shall be subject to
Tenant's and Landlord's prior written approval including without limitation
approval of the plans, specifications, contractors and subcontractors therefor,
and all applicable terms and conditions of the Lease relating to construction,
alterations or improvements of the Premises, and such other reasonable
requirements or conditions as Tenant or Landlord may impose. During any period
that Sublessee shall be permitted to enter the Sublease Premises prior to the
Commencement Date other than to occupy the same (e.g., to perform alterations or
improvements), Sublessee shall comply with all terms and provisions of this
Sublease, except those provisions requiring payment of rentals. If Sublessee
shall be permitted to enter the Sublease Premises prior to the Commencement Date
for the purpose of occupying the same, rentals shall commence on such date; if
Sublessee shall commence occupying only a portion of the Sublease Premises prior
to the Commencement Date, rentals shall be prorated based on the number of
rentable square feet occupied by Sublessee.
The Commencement Date shall be delayed and rentals from Sublessee to Tenant
hereunder shall be abated to the extent that Tenant fails: (i) to substantially
complete any improvements to the Sublease Premises required to be performed by
Tenant under any separate agreement signed by both parties and approved by
Landlord in connection herewith, or (ii) to deliver possession of the Sublease
Premises for any other reason, including but not limited to holding over by
prior occupants, except to the extent that Sublessee, its contractors, agents or
employees in any way contribute to either such failures. If Tenant so fails for
a ninety (90) day initial grace period, or such additional time as may be
necessary due to strikes, acts of God, shortages of labor or materials,
governmental requirements, acts or omissions of Sublessee, its contractors,
agents or employees, or other causes beyond Tenant's reasonable control,
Sublessee shall have the right to terminate this Sublease by written notice to
Tenant any time thereafter up until Tenant substantially completes any such
improvements and delivers the Sublease Premises to Sublessee. Any such delay in
the Commencement Date shall not subject Tenant (or Landlord) to any liability
for any loss or damage resulting therefrom, and Sublessee's sole remedy with
respect thereto shall be the abatement of rentals and right to terminate this
Sublease described above. Upon any such termination, Tenant and Sublessee shall
be entirely relieved of their obligations hereunder, and any Security Deposit
and rentals
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shall be returned to Sublessee. If the Commencement Date is delayed, the
Expiration Date shall not be similarly extended, unless the parties expressly
agree in writing.
IN WITNESS WHEREOF, the following parties have executed this Sublease as of
the date first written above:
WITNESSES; ATTESTATION
(Two for each signatory
required if Property is in
Florida or Ohio):
TENANT: Xxxxxxx X. XxXxxxxx, Xx.,
an individual
By:
--------------------------------- ----------------------------------
--------------------------------- Name Typed: Xxxxxxx X. XxXxxxxx, Xx.
Title:
-------------------------------
SUBLESSEE: Golden State Vintners,
A California Corporation
By: /s/ Xxxxxxx X. X'Xxxxx
--------------------------------- ---------------------------------
--------------------------------- Name Typed: Xxxxxxx X. X'Xxxxx
Title: President
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LANDLORD:
--------------------------------- 100 Xxx Xxxxxxx Xxxxx Boulevard, Inc.,
a Florida corporation
---------------------------------
By: Xxxxxxx Capital Management
--------------------------------- Corporation, an Illinois
corporation, agent
By:
----------------------------------
Its:
----------------------------------
Date:
----------------------------------
GUARANTOR(S) (and spouses)
---------------------------------
---------------------------------
THIS FORM HAS BEEN PROVIDED BY LANDLORD ONLY AS AN EXAMPLE OF A SUBLEASE. THIS
FORM HAS IMPORTANT LEGAL CONSEQUENCES, AND EACH PARTY SHOULD CONSULT ITS
ATTORNEY BEFORE SIGNING. LANDLORD DOES NOT PRACTICE LAW, AND IS PROVIDING NO
ASSURANCES AS TO THE ADEQUACY OR ENFORCEABILITY OF THIS FORM, OR WHETHER IT IS
FREE OF ERRORS OR OMISSIONS.
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ADDENDUM TO SUBLEASE
BY AND BETWEEN
XXXXXXX X. XxXXXXXX, XX., TENANT
GOLDEN STATE VINTNERS, SUBLESSEE
AND 000 XXX XXXXXXX XXXXX XXXXXXXXX, XXX., XXXXXXXX
DATED: December 1, 1997
1. As consideration for this Sublease, effective upon the commencement of
the Sublease, Sublessee will become the owner of the Lucent Merlin Legend
telephone system in Premises. Sublessee will allow Tenant to use said telephone
system during the term hereof.
2. Sublessee will have the option, but not the obligation to sublease the
office marked "presently rented" on Exhibit A if that tenant vacates that office
at a rental of $1,000.00 per month.
3. Tenant will consent to an Assignment of Lease to Sublessee at the
request of Sublessee. Assignment will be subject to approval by Landlord
pursuant to the provisions of the Lease.
4. Tenant will be afforded the use of the present storage room (northeast
corner of building) for the existing wire storage unit.
5. Prior to any Master Lease termination caused by any action or inaction
of Tenant, including any default under the Master Lease, Sublessee shall be
afforded the right to cure Tenant's default and to assume Tenant's rights and
obligations under the Master Lease, subject to Landlord's approval.
Tenant: Xxxxxxx X. XxXxxxxx, Xx., an individual
By:
----------------------------
Its:
---------------------------
Date:
--------------------------
Sublessee: Golden State Vintners, a California Corporation
By: /s/ Xxxxxxx X. X'Xxxxx
--------------------------
Its: President
--------------------------
Date:
--------------------------
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Landlord: 000 Xxx Xxxxxxx Xxxxx Xxxxxxxxx, Xxx., a Florida corporation
By: Xxxxxxx Capital Management Corporation, an Illinois corporation,
agent
By:
----------------------------
Its:
---------------------------
Date:
--------------------------
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