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EXHIBIT 10.7
LEASE AND AGREEMENT
1. PARTIES. THIS LEASE AND AGREEMENT is entered into this 28 day of November,
1974, to amend the lease entered into the 15 day of July, 1974, by and between
XXXXX X. XXXXXXXX, XXXXX X. XXXXXXXX and XXXXX X. XXXXXXXXX, Trustees under
that certain Declaration of Trust dated December 30, 1972 (herein called
"Lessor") and LA VICTORIA FOODS, INC., A California corporation, (herein called
"Lessee").
2. PREMISES. WHEREAS, the Lessee is in need of additional improvements for
its operations in the El Monte area, and
WHEREAS, Lessor is willing to build said building addition upon his
premises to Lessee's specifications.
NOW THEREFORE, it is mutually agreed as follows:
Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor
the additional premises which with original premises comprises a total square
foot area of 58,225 square feet, per specifications described in Exhibit "A"
the real property located in Los Angeles County, California, described in
Exhibit "B" attached hereto and made a part hereof.
3. TERM.
3.1 TERM. The term of this Lease shall be for twenty-five (25) years,
commencing on the date of occupancy, and ending twenty-five (25) years
thereafter.
3.2. DELAY IN COMMENCEMENT. Notwithstanding said commencement date,
if for any reason Lessor cannot deliver possession of the Premises to Lessee on
said date Lessor shall not be subject to any liability therefor, nor shall such
failure affect the validity of this Lease or the obligations of Lessee
hereunder or extend the term hereof, but in such case Lessee shall not be
obligated to pay rent until possession of the Premises is tendered to Lessee;
provided, however, that if Lessor shall not have delivered possession of the
Premises within (60) days from said commencement date, Lessee may, at Lessee's
option, by notice in writing to Lessor within ten (10) days thereafter, cancel
this Lease, in which event the parties shall be discharged from all obligations
hereunder. If Lessee occupies the Premises prior to said
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commencement date, such occupancy shall be subject to all provisions hereof,
such occupancy shall not advance the termination date, and Lessee shall pay
rent for such period at the initial monthly rates set forth below.
4. RENT. NET LEASE.
4.1. RENT. Lessee shall pay to Lessor as rent for promises Eighty
Seven Thousand Three Hundred Forty Dollars and Eighty Cents ($87,340.80) per
annum, payable in equal monthly installments of $7,278.40, in advance on the
first day of each month of the term hereof. Lessee shall pay Lessor upon the
execution of this Lease hereof $14,556.80, which represents the first and last
month's rental. Rent for any period during the term hereof which is for less
than one month shall be pro rata portion of the monthly installment. Rent shall
be payable in lawful money of the United States to Lessor at the address stated
herein or to such other persons or at such other places as Lessor may designate
in writing.
4.2. ADDITIONAL RENT. This Lease is what is commonly called a "net
lease", it being understood that Lessor shall receive the rent set forth in
Paragraph 4.1 free and clear of any and all other impositions, taxes, liens,
charges or expenses of any nature whatsoever in connection with the ownership
and operation of the Premises. In addition to the rent reserved by Paragraph
4.1, Lessee shall pay to the parties respectively entitled thereto all
impositions, insurance premiums, operating charges, maintenance charges,
construction costs, and any other charges, costs and expenses which arise or
may be contemplated under any provisions of this Lease during the term hereof.
All of such charges, costs and expenses shall constitute additional rent, and
upon the failure of Lessee to pay any of such costs, charges or expenses,
Lessor shall have the same rights and remedies as otherwise provided in this
Lease for the failure of Lessee to pay rent. It is the intention of the
parties hereto that this Lease shall not be terminable for any reason by the
Lessee, and that Lessee shall in no event be entitled to any abatement of or
reduction in rent payable hereunder, except as herein expressly provided. Any
present or future law to the contrary shall not alter this agreement of the
parties.
4.3. ADJUSTMENT OF RENT. The monthly rental of this Lease shall be
subject to adjustment based on the Consumers Price Index (U.S. City Average All
Items) determined by the United States Department of Labor Bureau of Labor
Statistics, Washington, D.C., as follows:
NOTE: 4.3. The C.P.I. (Consumer Price Index) rose from 224.2 to 315.3
during the period beginning December 1, 1979 to December 1, 1984, a 1.40633
increase. The rent was therefore adjusted to $15,432.88 per month. (10973.87 x
1.40633 or $15,432.88.
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The figure which shall be paid Consumers Price Index (U.S. City Average
All Items) for the month during which the term of this lease shall commence,
shall be used as a basis, and the said rental shall be adjusted if there is an
increase beginning on the first day of the sixty-first month of this lease by
the same ratio as such Consumer Price Index (sixty-first month of this lease)
is to the above same basis. Said adjustment shall be in effect for the ensuing
sixty-month period and shall be adjusted on the same formula on each
sixty-month period for the balance of the lease. Any adjustments may be either
up or down after the first such adjustment, but in no event shall the rental at
any time be less than is otherwise provided herein.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof
$7,278.40 as security for Lessee's faithful performance of Lessee's obligations
hereunder. If Lessee fails to pay rent or other charges due hereunder, or
otherwise defaults with respect to any provision of this Lease, Lessor may use,
apply or retain all or any portion of said deposit for the payment of any rent
or other charge in default or for the payment of any other sum to which Lessor
may become obligated by reason of Lessee's default, or to compensate Lessor for
any loss or damage which Lessor may suffer thereby. If Lessor so uses or
applies all or any portion of said deposit, Lessee shall within ten (10) days
after written demand therefor deposit cash with Lessor in an amount sufficient
to restore said deposit to the full amount hereinabove stated and Lessee's
failure to do so shall be a material breach of this Lease. Lessor shall not be
required to keep said deposit separate from its general accounts. If Lessee
performs all of Lessee's obligations hereunder, said deposit, or so much
thereof as has not theretofore been applied by Lessor, shall be returned
without payment of interest or other increment for its use, to Lessee (or, at
Lessor's option, to the last assignee, if any, of Lessee's interest hereunder)
at the expiration of the term hereof, and after Lessee has vacated the Premises.
6. USE
6.1 USE. The Premises shall be used and occupied only for general
offices, and warehousing of products of the Lessee, now sold by it as well as
the products to be processed, stored and sold by it in the future, and all
other purposes and uses relating to the business of the Lessee, all of which
uses are lawful, and the Lessor relies on such representation.
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6.2 COMPLIANCE WITH LAW. Lessee shall, at Lessee's expense, comply
promptly with all applicable statutes, ordinances, rules, regulations, orders
and requirements in effect during the term or any part of the term hereof
regulating the use by Lessee of the Premises. Lessee shall not use or permit
the use of the Premises in any manner that will tend to create waste or a
nuisance or, if there shall be more than one tenant of the building containing
the Premises, which shall tend to disturb such other tenants.
6.3 CONDITION OF PREMISES. Lessee hereby accepts the Premises in
their condition existing as of the date of the execution hereof, subject to all
applicable zoning, municipal, county and state laws, ordinances and regulations
governing and regulating the use of the Premises, and accepts this Lease
subject thereto and to all matters disclosed thereby and by any exhibits
attached hereto. Lessee acknowledges that neither Lessor nor Lessor's agent has
made any representation or warranty as to the suitability of the Premises for
the conduct of Lessee's business.
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS. Lessee shall during the term of this Lease
keep in good order, condition and repair, the Premises and every part thereof,
structural or non-structural, and all adjacent sidewalks, landscaping,
driveways, parking lots, fences and signs located in the areas which are
adjacent to and included with the Premises, and Lessor shall incur no expense
nor have any obligation of any kind whatsoever in connection with maintenance
of the Premises, and Lessee expressly waives the benefits of any statute now or
hereafter in effect which would otherwise afford Lessee the right to make
repairs at Lessor's expense or to terminate this Lease because of Lessor's
failure to keep the Premises in good order, condition and repair.
7.2. SURRENDER. On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the Premises to Lessor in the same
condition as when received, broom clean, ordinary wear and tear excepted.
Lessee shall repair any damage to the Premises occasioned by the removal of
Lessee's trade fixtures, furnishings and equipment pursuant to Paragraph
7.4(c), which repair shall include the patching and filling of holes and repair
or structural damage.
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7.3. LESSOR'S RIGHTS. If Lessee fails to perform Lessee's obligations
under this Paragraph 7, Lessor may at its option (but shall not be required to)
enter upon the Premises, after ten (10) days' prior written notice to Lessee,
and put the same in good order, condition and repair, and the cost thereof
together with interest thereon at the rate of 10% per annum shall become due
and payable at additional rental to Lessor together with Lessee's next rental
installment.
7.4. ALTERATIONS AND ADDITIONS.
(a) Lessee shall not, without Lessor's prior written consent,
make any alterations, improvements, additions, or utility installations in, on
or about the Premises, except for non-structural alterations not exceeding
$1,000 in cost. As used in this Paragraph 7.4, the term "utility installations"
shall include bus ducting, power panels, fluorescent fixtures, space heaters,
conduits and wiring. As a condition to giving such consent, Lessor may require
that Lessee agree to remove any such alterations, improvements, additions or
utility installations at the expiration of the term, and to restore the
Premises to their prior condition. As a further condition to giving such
consent, Lessor may require Lessee to provide Lessor, at Lessee's sole cost and
expense, a lien and completion bond in an amount equal to one and one-half
times the estimated cost of such improvements, to insure Lessor against any
liability for mechanics' and materialmen's liens and to insure completion of
the work.
(b) Lessee shall pay, when due, all claims for labor or
materials furnished or alleged to have been furnished to or for Lessee at or
for use in the Premises, which claims are or may be secured by any mechanics'
or materialmen's lien against the Premises or any interest therein. Lessee shall
give Lessor not less than ten (10) days' notice prior to the commencement of
any work in the Premises, and Lessor shall have the right to post notices of
non-responsibility in or on the Premises as provided by law.
(c) Unless Lessor requires their removal, as set forth in
Paragraph 7.4(a), all alterations, improvements, additions and utility
installations (whether or not such utility installations constitute trade
fixtures of Lessee), which may be made on the Premises, shall become the
property of Lessor and remain upon and be surrendered with the Premises at the
expiration of the term. Notwithstanding the provisions of this Paragraph
7.4(c), Lessee's
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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 Lessee and may be removed by Lessee subject to the provisions
of paragraph 7.2.
8. INSURANCE; INDEMNITY.
8.1. INSURING PARTY. As used in this Paragraph 8, the term, "insuring
party" shall mean the party who has the obligation to obtain the insurance
required hereunder. The insuring party in this case shall be designated in
Paragraph 16.21. Whether the insuring party is the Lessor or the Lessee, Lessee
shall, as additional rent for the Premises, pay the cost of all insurance
required hereunder. If Lessor is the insuring party Lessee shall, within ten
(10) days following demand by Lessor, reimburse Lessor for the cost of the
insurance so obtained.
8.2. LIABILITY INSURANCE. The insuring party shall obtain and keep in
force during the term of this Lease a policy of comprehensive public liability
insurance insuring Lessor and Lessee against any liability arising out of the
ownership, use, occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be in an amount of not less than
$300,000 for injury to or death of one person in any one accident or occurrence
and in an amount of not less than $600,000 for injury to or death of more than
one person in any one accident or occurrence. Such insurance shall further
insure Lessor and Lessee against liability for property damage of at least
$50,000. The limits of said insurance shall not, however, limit the liability
of Lessee hereunder. In the event that the Premises constitute a part of a
larger property said insurance shall have a Lessor's Protective Liability
endorsement attached thereto. If the insuring party shall fail to procure and
maintain said insurance the other party may but shall not be required to,
procure and maintain the same, but at the expense of Lessee.
8.3. PROPERTY INSURANCE. The insuring party shall obtain and keep in
force during the term of this Lease a policy or policies of insurance covering
loss or damage to the Premises, in the amount of the full replacement value
thereof, providing protection against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief,
special extended
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perils (all risk) and sprinkler leakage. Said insurance shall provide for
payment for loss thereunder to Lessor or to the holder of a first mortgage or
deed of trust on the Premises. If the insuring party shall fail to procure and
maintain said insurance the other party may, but shall not be required to,
procure and maintain the same, but at the expense of Lessee.
8.4. INSURANCE POLICIES. Insurance required hereunder shall be in
companies rated AAA or better in "Best's Insurance Guide". The insuring party
shall deliver to the other party copies of policies of such insurance or
certificates evidencing the existence and amounts of such insurance with loss
payable clauses satisfactory to Lessor. No such policy shall be cancellable or
subject to reduction of coverage or other modification except after 10 days
prior written notice to Lessor. If Lessee is the insuring party, Lessee shall,
within 10 days prior to the expiration of such policies, furnish Lessor with
renewals or "binders" thereof, or Lessor may order such insurance and charge
the cost thereof to Lessee, which amount shall be payable by Lessee upon
demand. Lessee shall not do or permit to be done anything which shall invalidate
the insurance policies referred to in Paragraph 8.3. If Lessee does or permits
to be done anything which shall increase the cost of the insurance policies
referred to in Paragraph 8.3, then Lessee shall forthwith upon Lessor's demand
reimburse Lessor for any additional premiums attributable to any act or
omission or operation of Lessee causing such increase in the cost of insurance.
If Lessor is the insuring party, and if the insurance policies maintained
hereunder cover other improvements in addition to the Premises, Lessor shall
deliver to Lessee a written statement setting forth the amount of any such
insurance cost increase and showing in reasonable detail the manner in which it
has been computed.
8.5. WAIVER OF SUBROGATION. Lessee and Lessor each hereby waive any
and all rights of recovery against the other, or against the officers,
employees, agents and representatives of the other, for loss of or damage to
such waiving party or its property or the property of others under its control
to the extent that such loss or damage is insured against under any insurance
policy in force at the time of such loss or damage. The insuring party shall,
upon obtaining the policies of insurance required hereunder, give notice to the
insurance carrier or carriers that the foregoing mutual waiver of subrogation
is contained in this Lease.
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8.6. INDEMNITY. Lessee shall indemnify and hold harmless Lessor from
and against any and all claims arising from Lessee's use of the Premises, of
from the conduct of Lessee's business or from any activity, work or things
done, permitted or suffered by Lessee in or about the Premises or elsewhere and
shall further indemnify and hold harmless Lessor from and against any and all
claims arising from any breach or default in the performance of any obligation
on Lessee's part to be performed under the terms of this Lease, or arising from
any negligence of the Lessee, or any of Lessee's agents, contractors, or
employees, and from and against all costs, attorney's fees, expenses and
liabilities incurred in the defense of any such claim or any action or
proceeding brought thereon; and in case any action or proceeding be brought
against Lessor by reason of any such claim, Lessee upon notice from Lessor
shall defend the same at Lessee's expense by counsel satisfactory to Lessor.
Lessee, as a material part of the consideration to Lessor, hereby assumes all
risk of damage to property or injury to persons, in, upon or about the Premises
arising from any cause and Lessee hereby waives all claims in respect thereto
against Lessor.
8.7. EXEMPTION OF LESSOR FROM LIABILITY. Lessee hereby agrees that
Lessor shall not be liable for injury to Lessee's business or any loss of
income therefrom or for damage to the goods, wares, merchandise or other
property of Lessee, Lessee's employees, invitees, customers, or any other
person in or about the Premises, nor shall Lessor be liable for injury to the
person of Lessee, Lessee's employees, agents or contractors, whether such
damage of injury is caused by or results from fire, steam, electricity, gas,
water or rain, or from the breakage, leakage, obstruction or other defects of
pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures, or from any other cause, whether said damage or injury results from
conditions arising upon the Premises or upon other portions of the buildings of
which the Premises are a part, or from other sources or places, and regardless
of whether the cause of such damage or injury or the means of repairing the
same is inaccessible to Lessee. Lessor shall not be liable for any damages
arising from any act or neglect of any other tenant, if any, of the building in
which the Premises are located.
9. DAMAGE OR DESTRUCTION; OBLIGATION TO REBUILD. In the event the
improvements on the Premises are damaged or destroyed, partially or totally,
from any cause
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whatsoever, whether or not such damage or destruction is covered by any
insurance required to be maintained under Paragraph 8, then Lessee shall
repair, restore, and rebuild the Premises to the condition existing
immediately prior to such damage or destruction and this Lease shall continue
in full force and effect. Such repair, restoration and rebuilding (all of which
are herein called the "repair") shall be commenced within a reasonable time
after such damage or destruction and shall be diligently prosecuted to
completion. There shall be no abatement of rent or of any other obligation of
Lessee hereunder by reason of such damage or destruction. The proceeds of any
insurance maintained under Paragraph 8.3 shall be made available to Lessee for
payment of the cost and expense of the repair; provided, however, that such
proceeds may be made available to Lessee subject to reasonable conditions
including, but not limited to, architect's certification of costs and retention
of a percentage of such proceeds pending final notice of completion. In the
event that such proceeds are not made available to Lessee within ninety (90)
days after such damage or destruction, Lessee shall have the option for 30
days, commencing on the expiration of such 90-day period, of cancelling this
Lease. If Lessee shall exercise such option, Lessee shall have no further
obligation hereunder and shall have no further claims against Lessor; provided,
however, that Lessor shall return to Lessee so much of Lessee's security
deposit as has not theretofore been applied by Lessor. Lessee shall exercise
such option by written notice to Lessor within said 30-day period. Lessor may
require that Lessee provide, at Lessee's sole cost and expense, a lien and
completion bond to insure against mechanics' or materialmen's liens arising out
of the repair, and to insure completion of the repair. In the event that the
insurance proceeds are insufficient to cover the cost of the repair, then any
amount in excess thereof required to complete the repair shall be paid by
Lessee.
10. REAL PROPERTY TAXES.
10.1. PAYMENT OF TAXES. Lessee shall pay all real property taxes
applicable to the Premises during the term of this Lease. All such payments
shall be made at least ten (10) days prior to the delinquency date of such
payment. Lessee shall promptly furnish Lessor with satisfactory evidence that
such taxes have been paid. If any such taxes paid by Lessee shall cover any
period of time
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prior to or after the expiration of the term hereof, Lessee's share of such
taxes shall be equitably prorated to cover only the period of time within the
tax fiscal year during which this Lease shall be in effect, and Lessor shall
reimburse Lessee to the extent required. If Lessee shall fail to pay any such
taxes, Lessor shall have the right to pay the same, in which case Lessee shall
repay such amount to Lessor with Lessee's next rent installment together with
interest at the rate of 10% per annum.
10.2. DEFINITION OF "REAL PROPERTY" TAX. As used herein, the term
"real property tax" shall include any form of assessment, license fee,
commercial rental tax, levy, penalty, or tax (other than inheritance or estate
taxes), imposed by any authority having the direct or indirect power to tax,
including any city, county, state or federal government, or any school,
agricultural, lighting, drainage or other improvement district thereof, as
against any legal or equitable interest of Lessor in the Premises or in the
real property of which the Premises are a part, as against Lessor's right to
rent or other income therefrom, or as against Lessor's business of leasing the
Premises.
10.3. JOINT ASSESSMENT. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the real property taxes
for all of the land and improvements included within the tax parcel assessed,
such proportion to be determined by Lessor from the respective valuations
assigned in the assessor's reasonable determination thereof, in good faith,
shall be conclusive.
10.4. PERSONAL PROPERTY TAXES. Lessee shall pay prior to delinquency
all taxes assessed against and levied upon trade fixtures, furnishings,
equipment, and all other personal property of Lessee contained in the Premises
or elsewhere. When possible, Lessee shall cause said trade fixtures,
furnishings, equipment and all other personal property to be assessed and
billed separately from the real property of Lessor.
11. UTILITIES. Lessee shall pay for all water, gas, heat, light, power,
telephone and other utilities and services supplied to the Premises, together
with any taxes thereon. If any such services are not separately metered to
Lessee, Lessee shall pay a reasonable proportion to be determined by Lessor of
all charges jointly metered with other premises.
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12. ASSIGNMENT AND SUBLETTING.
12.1. LESSOR'S CONSENT REQUIRED. Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Lessee's interest in this Lease or in the Premises,
without Lessor's prior written consent, which Lessor shall not unreasonably
withhold. Any attempted assignment, transfer, mortgage, encumbrance or
subletting without such consent shall be void, and shall constitute a breach of
this Lease.
12.2. NO RELEASE OF LESSEE. Regardless of Lessor's consent, no
subletting or assignment shall release Lessee of Lessee's obligations or alter
the primary liability of Lessee to pay the rent and to perform all other
obligations to be performed by Lessee hereunder. The acceptance of rent by
Lessor from any other person shall not be deemed to be a waiver by Lessor of
any provision hereof. Consent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting.
12.3. ATTORNEY'S FEES. In the event that Lessor shall consent to a
sublease or assignment under Paragraph 12.1, Lessee shall pay Lessor's
reasonable attorney's fees not to exceed $100 incurred in connection with
giving such consent.
13. DEFAULTS; REMEDIES.
13.1. DEFAULTS. The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment or rent or any
other payment required to be made by Lessee hereunder, as and when due, where
such failure shall continue for a period of three days after written notice
thereof from Lessor to Lessee.
(c) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed
by Lessee, other than described in paragraph (b) above, where such failure shall
continue for a period of 30 days after written notice hereof from Lessor to
Lessee; provided, however, that if the nature of Lessee's default is such that
more than 30 days are reasonably required for its cure, then Lessee shall not be
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deemed to be in default if Lessee commenced such cure within said 30-day period
and thereafter diligently prosecutes such cure to completion.
(d)(i) The making by Lessee of any general assignment or general
arrangement for the benefit of creditors; (ii) the filing by or against Lessee
of a petition to have Lessee adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy (unless, in
the case of a petition filed against Lessee, the same is dismissed within 60
days); (iii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to Lessee within 30
days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where such seizure is not discharged within 30 days.
13.2 REMEDIES. In the event of any such default or breach by Lessee,
Lessor may at any time thereafter, with or without notice or demand and without
limiting Lessor in the exercise of any right or remedy which Lessor may have by
reason of such default or breach:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Lessor. In such event
Lessor shall be entitled to recover from Lessee all damages incurred by Lessor
by reason of Lessee's default including, but not limited to, the cost of
recovering possession of the Premises; expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorney's
fees, and any real estate commission actually paid; the worth at the time of
award by the court having jurisdiction thereof of the amount by which the
unpaid rent for the balance of the term after the time of such award exceeds
the amount of such rental loss for the same period that Lessee proves could be
reasonably avoided; that portion of the leasing commission paid by Lessor
pursuant to Article 15 applicable to the unexpired term of this Lease. Unpaid
installments or rent or other sums shall bear interest from the date due at the
rate of 10% per annum. In the event Lessee shall have abandoned the Premises,
Lessor shall have the option of (i) retaking possession of the Premises and
recovering from Lessee the amount
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specified in this Paragraph 13.2 (a), or (ii) proceeding under Paragraph 13.2
(b).
(b) Maintain Lessee's right to possession in which case this Lease
shall continue in effect whether or not Lessee shall have abandoned the
Premises. In such event Lessor shall be entitled to enforce all of lessor's
rights and remedies under this Lease, including the right to recover the rent
as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor under
the laws or judicial decisions of the State of California.
13.3. DEFAULT BY LESSOR. Lessor shall not be in default unless Lessor
fails to perform obligations required of Lessor within a reasonable time, but
in no event later than thirty (30) days after written notice by Lessee to
Lessor and to the holder of any first mortgage or deed of trust covering the
Premises whose name and address shall have theretofore been furnished to Lessee
in writing, specifying wherein Lessor has failed to perform such obligation;
provided, however, that if the nature of Lessor's obligation is such that more
than thirty (30) days are required for performance then Lessor shall not be in
default if Lessor commences performance within such 30-day period and
thereafter diligently prosecutes the same to completion.
13.4. LATE CHARGES. Lessee hereby acknowledges that late payment by
Lessee to Lessor of rent and other sums due hereunder will cause Lessor to
incur costs not contemplated by this Lease, the exact amount of which will
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Lessor by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Lessee shall
not be received by Lessor or Lessor's designee within ten (10) days after such
amount shall be due, Lessee shall pay to Lessor a late charge equal to 10% of
such overdue amount. The parties hereby agree that such late charge represents a
fair and reasonable estimate of the costs Lessor will incur by reason of late
payment by Lessee. Acceptance of such late charge by Lessor shall in no event
constitute a waiver of Lessee's default with respect to such overdue amount, nor
prevent Lessor from exercising any of the other rights and remedies granted
hereunder.
14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain, or sold under the threat of the exercise of said power
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all of which are herein called "condemnation"), this Lease shall terminate as to
the part so taken as of the date the condemning authority takes title or
possession, whichever first occurs. If more than 10% of the floor area of the
improvements on the premises, or more than 25% of the land area of the Premises
which is not occupied by any improvements, is taken by condemnation, Lessee may,
at Lessee's option, to be exercised in writing only within ten (10) days after
Lessor shall have given Lessee written notice of such taking (or in the absence
of such notice, within ten (10) days after the condemning authority shall have
taken possession) terminate this Lease as of the date the condemning authority
takes such possession. If Lessee does not terminate this Lease in accordance
with the foregoing, this Lease shall remain in full force and effect as to the
portion of the Premises remaining except that the rent shall be reduced in the
proportion that the floor area taken bears to the total floor area of the
building situated on the Premises. Any award for the taking of all or any part
of the Premises under the power of eminent domain or any payment made under
threat of the exercise of such power shall be the property of Lessor, whether
such award shall be made as compensation for diminution in value of the
leasehold or for the taking of the fee, or as severance damages; provided,
however, that Lessee shall be entitled to any award for loss of or damage to
Lessee's trade fixtures and removable personal property. In the event that this
Lease is not terminated by reason of such condemnation, Lessor shall, to the
extent of severance damages received by Lessor in connection with such
condemnation, repair any damage to the Premises caused by such condemnation
except to the extent that Lessee has been reimbursed therefor by the condemning
authority. Lessee shall pay any amount in excess of such severance damages
required to complete such repair.
-14-
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16. GENERAL PROVISIONS.
16.1 ESTOPPEL CERTIFICATE.
(a) Lessee shall at any time upon not less than ten (10) days
prior written notice from Lessor execute, acknowledge and deliver to Lessor a
statement in writing (i) certifying 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 so modified, is in full force and effect)
and the date to which the rent and other charges are paid in advance, if any,
and (iii) acknowledging that there are not, to Lessee's knowledge, any uncured
defaults on the part of Lessor hereunder, or specifying such defaults if any are
claimed. Any such statement may be conclusively relied upon by any prospective
purchaser or encumbrancer of the Premises.
(b) Lessee's failure to deliver such statement within such time shall
be conclusive upon Lessee (i) that this Lease is in full force and effect,
without modification except as may be represented by Lessor, (ii) that there
are no uncured defaults in Lessor's performance, and (iii) that not more than
one month's rent has been paid in advance.
(c) If Lessor desires to finance or refinance the Premises, or any
part thereof, Lessee hereby agrees to deliver to any lender designated by
Lessor such financial statements of Lessee as may be reasonably required by
such lender.
-15-
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Lessee. All such financial statements shall be received by Lessor in confidence
and shall be used only for the purposes herein set forth.
16.2. LESSOR'S LIABILITY. The term "Lessor" as used herein shall mean
only the owner or owners at the time in question of the fee title or a
lessee's interest in a ground lease of the Premises, and except as expressly
provided in Paragraph 15, in the event of any transfer of such title or
interest, Lessor herein named (and in case of any subsequent transfers the then
grantor) shall be relieved from the after the date of such transfer of all
liability as respects Lessor's obligations thereafter to be performed, provided
that any funds in the hands of Lessor or the then grantor at the time of such
transfer, in which Lessee has an interest, shall be delivered to the grantee.
The obligations contained in this Lease to be performed by lessor shall,
subject as aforesaid, be binding on Lessor's successors and assigns, only
during their respective periods of ownership.
16.3. SEVERABILITY. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
16.4. INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein
provided, any amount due to Lessor not paid when due shall bear interest at 10%
per annum from the date due. Payment of such interest shall not excuse or cure
any default by Lessee under this Lease.
16.5. TIME OF ESSENCE. Time is of the essence.
16.6. CAPTIONS. Article and paragraph captions are not a part hereof.
16.7. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This lease
contains all agreements of the parties with respect to any matter mentioned
herein. No prior agreement or understanding pertaining to any such matter shall
be effective. This Lease may be modified in writing only, signed by the parties
in interest at the time of the modification.
16.8. NOTICES. Any notice required or permitted to be given hereunder
shall be in writing and may be served personally or by regular mail, addressed
to Lessor and Lessee respectively at the addresses set forth after their
signatures at the end of this Lease.
-16-
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16.9. WAIVERS. No waiver by Lessor of any provision hereof shall be
deemed a waiver of any other provision hereof or of any subsequent breach by
Lessee of the same or any other provision. Lessor's consent to or approval of
any act shall not be deemed to render unnecessary the obtaining of Lessor's
consent to or approval of any subsequent act by Lessee. The acceptance of rent
hereunder by Lessor shall not be a waiver of any preceding breach by Lessee of
any provision hereof, other than the failure of Lessee to pay the particular
rent so accepted, regardless of Lessor's knowledge of such preceding breach at
the time of acceptance of such rent.
16.10. RECORDING. Lessee shall not record this Lease without Lessor's
prior written consent and such recordation shall, at the option of Lessor,
constitute a non-curable default of Lessee hereunder. Either party shall, upon
request of the other, execute, acknowledge and deliver to the other a "short
form" memorandum of this Lease for recording purposes.
16.11. HOLDING OVER. If Lessee remains in possession of the Premises
or any part thereof after the expiration of the term hereof without the express
written consent of Lessor, such occupancy shall be a tenancy from month to
month at a rental in the amount of the last monthly rental plus all other
charges payable hereunder, and upon all the terms hereof applicable to a
month-to-month tenancy.
16.12. CUMULATIVE REMEDIES. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
16.13. COVENANTS AND CONDITIONS. Each provision of this Lease
performable by Lessee shall be deemed both a covenant and a condition.
16.14. BINDING EFFECT; CHOICE OF LAW. Subject to any provisions
hereof restricting assignment or subletting by Lessee and subject to the
provisions of Paragraph 16.2, this Lease shall bind the parties, their personal
representatives, successors and assigns. This Lease shall be governed by the
laws of the State of California.
16.15. SUBORDINATION.
(a) This Lease, at Lesser's option, shall be subordinate to
any ground lease, mortgage, deed of trust, or any other hypothecation for
security now or hereafter placed upon the real property of which the Premises
are a part
-17-
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and to any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Lessee's right to quiet possession of the
Premises shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee or ground lessor shall elect to have this Lease prior to the
lien of its mortgage, deed of trust or ground lease, and shall give written
notice thereof to Lessee, 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
recording thereof.
(b) Lessee agrees to execute any document required to effectuate such
subordination or to make this Lease prior to the lien of any mortgage, deed of
trust or ground lease, as the case may be, and failing to do so within ten (10)
days after written demand, does hereby make, constitute and irrevocably appoint
Lessor as Lessee's attorney in fact and in Lessee's name, place and stead, to
do so.
16.16 ATTORNEY'S FEES. If either party or the broker named herein
brings an action to enforce the terms hereof or declare rights hereunder, the
prevailing party in any such action, on trial or appeal, shall be entitled to
his reasonable attorney's fees to be paid by the losing party as fixed by the
court. The provisions of this paragraph shall inure to the benefit of the
broker named herein who seeks to enforce a right hereunder.
16.17 LESSOR'S ACCESS. Lessor and Lessor's agents shall have the
right to enter the Premises at reasonable times for the purpose of inspecting
the same, showing the same to prospective purchasers, or lenders, and making
such alterations, repairs, improvements or additions to the Premises or to the
building of which they are a part as Lessor may deem necessary or desirable.
Lessor may at any time place on or about the Premises any ordinary "For Sale"
signs and Lessor may at any time during the last 120 days of the term hereof
place on or about the Premises any ordinary "For Lease" signs, without rebate
of rent or liability to Lessee.
16.18. SIGNS AND AUCTIONS. Lessee shall not place any sign upon the
Premises or conduct any auction thereon without Lessor's prior written consent.
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16.19. MERGER. The voluntary or other surrender of this Lease by
Lessee or a mutual cancellation thereof, shall not work a merger, and shall, at
the option of Lessor, terminate all or any existing subtenancies or may, at the
option of Lessor, operate as an assignment to Lessor of any or all of such
subtenancies.
16.20. CORPORATE AUTHORITY. If Lessee is a corporation, each
individual executing this Lease on behalf of said corporation represents and
warrants that he is duly authorized to execute and deliver this Lease on behalf
of said corporation, in accordance with a duly adopted resolution of the Board
of Directors of said corporation or in accordance with the By-laws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. If Lessee is a corporation Lessee shall, within thirty (30)
days after execution of this Lease, delivery to Lessor a certified copy of a
resolution of the Board of Directors of said corporation authorizing or
ratifying the execution of this Lease.
16.21. INSURING PARTY. The insuring party under this Lease shall be
the LESSEE
----------------------------------------------------------------------------.
The parties hereto have executed this Lease at the place and on the
dates specified immediately adjacent to their respective signatures.
If this Lease has been filled in it has been prepared for submission to
your attorney for his approval. No representation or recommendation is
made by the real estate broker or its agents or employees as to the
legal sufficiency, legal effect, or tax consequences of this Lease or
the transaction relating thereto.
Executed at EL MONTE, CA.
------------------------- ------------------------------------
on Jan. 15, 1974 By /s/ X.X. XXXXXXXX
--------------------------------- ---------------------------------
Address 0000 Xxxxxx Xxxx. X.X. Xxxxxxxx, Trustee
----------------------------
By /s/ Xxxxx X. Xxxxxxxx
--------------------------------- ---------------------------------
Xxxxx X. Xxxxxxxx, Trustee
/s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxxx, Trustee
"Lessor"
Executed at EL MONTE, CA. LA VICTORIA FOODS, INC., a corporation
-------------------------- --------------------------------------
on Jan. 15, 1974 By X.X. Xxxxxx - Vice Pres.
--------------------------------- ---------------------------------
Address 0000 Xxxxxx Xxxx.
---------------------------- By X.X. Xxxxxxxx - Pres.
---------------------------------
--------------------------------- "Lessee"
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That certain area described as warehouse on the plot plan comprises
51,000 square feet, which with original premises comprises a total of 58,225
square feet.
PARCEL 2, IN THE CITY OF EL MONTE, IN THE COUNTY OF LOS ANGELES, STATE
OF CALIFORNIA, AS SHOWN ON PARCEL MAP NO. 254, FILED IN BOOK 30, PAGE 78, OF
PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, TOGETHER WITH
THAT PORTION OF LOT 9 OF X. X. XXXXXXX'X FIRST SUBDIVISION, IN THE RANCHO
POTRERO GRANDE, IN SAID CITY, COUNTY AND STATE, AS PER MAP RECORDED IN BOOK 66
PAGES 94 AND 95 OF MISCELLANEOUS RECORD, IN SAID OFFICE OF THE COUNTY
RECORDER.
EXHIBIT A
21
[PLOT PLAN DIAGRAM]
22
PARCEL 2, IN THE CITY OF EL MONTE, IN THE COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS SHOWN ON PARCEL MAP NO. 254, FILED IN BOOK 30, PAGE 78, OF
PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, TOGETHER WITH
THAT PORTION OF LOT 9 OF X. X. XXXXXXX'X FIRST SUBDIVISION, IN THE RANCHO
POTRERO GRANDE, IN SAID CITY, COUNTY AND STATE, AS PER MAP RECORDED IN BOOK 66
PAGES 94 AND 95 OF MISCELLANEOUS RECORDS, IN SAID OFFICE OF THE COUNTY
RECORDER, DESCRIBED AS A WHOLE AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID PARCEL 2; THENCE EASTERLY,
SOUTHERLY AND SOUTHWESTERLY ALONG THE NORTHERLY, EASTERLY AND SOUTHEASTERLY
BOUNDARY LINES (RESPECTIVELY) OF SAID PARCEL 2, TO A POINT ON SAID SOUTHEASTERLY
BOUNDARY LINE, DISTANT THEREON NORTH 42 DEGREE 20 FEET 40 INCHES EAST, 68.63
FEET FROM THE SOUTHWESTERLY TERMINUS OF THAT CERTAIN COURSE THEREIN, SHOWN ON
SAID PARCEL MAP NO. 254, AS HAVING A BEARING AND LENGTH OF "NORTH 42 DEGREE 25
FEET 10 INCHES EAST, 80.47 FEET"; THENCE LEAVING SAID SOUTHEASTERLY BOUNDARY
LINE, SOUTH 1 DEGREE 32 FEET 47 INCHES WEST, 101.70 FEET; THENCE SOUTH 6 DEGREE
30 FEET 57 INCHES WEST, 88.63 FEET; THENCE SOUTH 47 DEGREE 15 FEET 04 INCHES
WEST, 119.70 FEET TO A POINT ON THAT CERTAIN COURSE SHOWN ON SAID PARCEL MAP NO.
254 AS HAVING A BEARING AND LENGTH OF "NORTH 13 DEGREE 57 FEET 10 INCHES EAST,
463.00 FEET," SAID POINT BEING DISTANT ALONG SAID LAST MENTIONED CERTAIN COURSE,
SOUTH 13 DEGREE 52 FEET 40 INCHES WEST, 204.56 FEET FROM THE MOST SOUTHERLY
SOUTHEAST CORNER OF SAID PARCEL 2; THENCE SOUTH 47 DEGREE 15 FEET 04 INCHES
WEST, 81.44 FEET; THENCE NORTH 43 DEGREE 18 FEET 56 INCHES WEST 32.01 FEET;
THENCE SOUTH 49 DEGREE 32 FEET 55 INCHES WEST 69.89 FEET; THENCE SOUTH 43 DEGREE
22 FEET 23 INCHES EAST, 31.97 FEET; THENCE SOUTH 41 DEGREE 36 FEET 40 INCHES
WEST, 150.01 FEET TO THE NORTHERLY LINE OF XXXXXX AVENUE, 100 FEET WIDE, AS
ESTABLISHED BY DEED RECORDED IN BOOK 13260 PAGE 372, OF OFFICIAL RECORDS, IN
SAID OFFICE OF THE COUNTY RECORDER; THENCE ALONG SAID NORTHERLY LINE, SOUTH 89
DEGREE 41 FEET 40 INCHES WEST, 163.74 FEET TO THAT CERTAIN COURSE IN THE
BOUNDARY LINE OF THAT CERTAIN PARCEL OF LAND DESIGNATED AS "TRACT NO. J-857" IN
CIVIL CASE NO. 9103-WM. UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF
CALIFORNIA CENTRAL DIVISION, A CERTIFIED COPY OF WHICH WAS RECORDED IN BOOK
42564 PAGE 382 OF SAID OFFICIAL RECORDS, AS HAVING A BEARING AND LENGTH OF
"SOUTH 44 DEGREE 41 FEET 40 INCHES WEST 307.85 FEET; THENCE ALONG SAID LAST
MENTIONED CERTAIN COURSE, SOUTH 44 DEGREE 45 FEET 15 INCHES WEST, TO THE
SOUTHERLY LINE OF SAID LOT 9; THENCE ALONG SAID SOUTHERLY LINE, SOUTH 89 DEGREE
45 FEET 15 INCHES WEST 56.67 FEET TO THAT CERTAIN COURSE IN THE EASTERLY LINE OF
THE LAND DESCRIBED IN THE DEED TO XXXXXX X. XXXXXXX, RECORDED IN BOOK 23780 PAGE
389 OF SAID OFFICIAL RECORDS, AS HAVING A BEARING AND LENGTH OF "SOUTH 35 DEGREE
30 FEET WEST, 500.00 FEET"; THENCE NORTHEASTERLY ALONG SAID LAST MENTIONED
CERTAIN COURSE TO THE WESTERLY LINE OF "XXXXX WASH" AS DESCRIBED IN FINAL ORDER
OF CONDEMNATION ENTERED IN LOS ANGELES COUNTY SUPERIOR COURT, CASE NO. 8-3767, A
CERTIFIED COPY OF WHICH WAS RECORDED IN BOOK 6698 PAGE 201 OF DEEDS, RECORDS OF
SAID COUNTY; THENCE NORTHERLY ALONG SAID WESTERLY LINE TO A LINE PARALLEL WITH
AND DISTANT WESTERLY 2.00 FEET FROM SAID HEREINBEFORE MENTIONED CERTAIN COURSE
IN THE EASTERLY LINE OF SAID LAND OF XXXXXX X. XXXXXXX; THENCE NORTHERLY ALONG
SAID PARALLEL LINE TO A LINE THAT BEARS SOUTH 89 DEGREES 46 FEET WEST, AND WHICH
PASSES THROUGH A POINT ON THE WEST LINE OF SAID XXX 0 XXXXXXX XXXXX XXXX XXXX
XXXX XXXXX 0 DEGREE 14 FEET EAST 710 FEET FROM THE NORTHWEST CORNER OF SAID LOT
9; THENCE EASTERLY ALONG SAID LINE SO BEARING, TO SAID HEREINBEFORE MENTIONED
CERTAIN COURSE IN THE EASTERLY LINE OF SAID LAND OF XXXXXX X. XXXXXXX; THENCE
NORTHERLY ALONG SAID LAST MENTIONED CERTAIN COURSE, TO THE SOUTHWESTERLY CORNER
OF SAID PARCEL 2; THENCE NORTHERLY ALONG THE WESTERLY LINE OF SAID PARCEL 2, TO
THE POINT OF BEGINNING.
SUBJECT TO EASEMENTS, RIGHTS, RIGHTS OF WAY, COVENANTS AND CONDITIONS OF
RECORD.
EXHIBIT B
23
AMENDMENT TO LEASE AND AGREEMENT
0000 X. Xxxxxx Xxxxxx
The Lease and Agreement dated November 28, 1974, between the Tanklage
Property Trust and La Victoria Foods is amended as follows:
Item 3.1 The term of this lease shall be extended to July 31, 2010.
Item 4.3 (2) The figure which was paid (Consumer Price Index, U.S.
City Average All Items) for the month of August, 1995 shall be used as a basis,
and said rental shall be adjusted on the first day of the 61st month following
August 1, 1995, by the same ratio as such Consumer Price Index (sixty-first
month of this lease) is to the above same basis. Said adjustment shall be in
effect for the ensuing 60 month period and shall be adjusted on the same
formula on each 60 month period for the balance of the lease. Any adjustment
may be either up or down after the first such adjustment, but in no event shall
the rental at any time be less than is otherwise permitted herein.
LESSOR:
DATED: OCT. 27, 1995. /s/ XXXXXX X. XXXXXXXX
--------------------------------------
Xxxxxx X. Xxxxxxxx, Trustee
DATED: OCT. 27, 1995. /s/ XXXXXXX X. XXXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxxx, Trustee
LESSEE:
LA VICTORIA FOODS, INC.
--------------------------------------
DATED: OCT. 27, 1995. /s/ XXXXXX X. XXXXXXXX
--------------------------------------
Xxxxxx X. Xxxxxxxx, President
DATED: OCT. 31, 1995. /s/ XXXXXX XXXXXXX
--------------------------------------
Xxxxxx Xxxxxxx, Secretary
