EXHIBIT 6.2
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is entered into as of March 14,
2001, by XXXXXXX X. XXXXX AND XXXX XXXXX AS TRUSTEES OF THE XXXXX FAMILY TRUST
(jointly "Landlord"), and AWG, LTD., a Nevada corporation ("Tenant").
Tenant desires to lease from Landlord, and Landlord is willing to lease
to Tenant the Leased Premises (as defined below), on the terms and subject to
the conditions hereinafter set forth.
Accordingly, in consideration of the foregoing and the mutual
covenants, agreements, representations and warranties contained herein, the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Appurtenances. The term "Appurtenances" shall mean all rights,
privileges and easements appurtenant to the Real Property (as defined below),
specifically excluding and reserving unto Landlord all minerals, oil, gas and
other hydrocarbon substances on and under the Real Property and all development
rights, including rights and permits to construct buildings and winery
production facilities, but specifically including all air rights, water, water
rights and water stock relating to the Real Property, and all other easements,
rights-of-way and other appurtenances used, benefiting or available in
connection with the beneficial use and enjoyment of the Real Property.
1.2 Commencement Date. The term "Commencement Date" shall mean, March
14, 2001.
1.3 Law. The term "Law" shall mean any local, regional, municipal,
county, state or federal statute, judicial decision, ordinance, resolution,
regulation, rule, code, administrative order, or other requirement of any
government agency or authority having jurisdiction over the parties to this
Lease or the Leased Premises.
1.4 Lease Term. The term "Lease Term" shall commence on the
Commencement Date continuing until March 14, 2010.
1.5 Leased Premises. The term "Leased Premises" shall have the meaning
therefor set forth in Section 2.1.
1.6 Leasehold Improvements. The term "Leasehold Improvements" shall
have the meaning therefor set forth in Section 7.1.
1.7 Landlord's Invested Capital. The term "Landlord's Invested Capital"
as used herein shall initially mean Two Million Five Hundred Thousand Dollars
($2,500,000) and shall be increased for each expenditure on capital improvements
or repairs made by Landlord as a
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result of a requirement under this Lease or by applicable law or pursuant to
Landlord's good faith determination that a capital improvement or repair is
necessary or desirable; provided however, any amounts expended by Landlord in
constructing a wine production and storage facility shall not increase
Landlord's Invested Capital unless and to the extent Tenant is permitted to use
such facility.
1.8 Real Property Taxes. The term "Real Property Taxes" as used herein
shall mean all real property taxes, assessments, and other charges imposed by
any governmental or quasi-governmental authority, which are levied or assessed
against the Leased Premises. Notwithstanding the foregoing, the term "Real
Property Taxes" shall not include estate, inheritance, transfer, gift or
franchise taxes of Landlord or any federal or state income tax.
1.9 Hazardous Materials. The term "Hazardous Materials" shall mean any
flammable materials, explosives, radioactive materials, hazardous or
contaminated materials or substances, toxic or noxious materials, substances or
related materials or substances or any other material or substance that is
prohibited or regulated by Law or that is designated by any governmental
authority to be radioactive, toxic, hazardous or otherwise of danger to health,
reproduction or the environment, including without limitation, substances
defined as "hazardous substances," "hazardous materials," "toxic substances,"
"hazardous wastes," or words of similar impact or stated to be known to cause
cancer or reproductive toxicity, under any Law, including, but not limited to,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. Section 9601, et seq.; the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. Section 1801, et seq.; the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901, et seq.; the
Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1317, et
seq.; the Clean Air Act, as amended, 42 U.S.C. Section 7401, et seq.; the
Occupational Safety and Health Act, as amended, 29 U.S.C. Section 651, et seq.;
Sections 25115, 25117, 25122.7, 25140, 25249.5, 25249.8, 25281, 25316 or 25501
of the California Health & Safety Code, as amended; and any similar Laws,
including any substances so defined or stated in any regulation adopted or
publication promulgated pursuant to such Laws, as they may be amended from time
to time.
ARTICLE 2
PREMISES
2.1 Demise of Premises. Landlord hereby leases to Tenant, and Tenant
leases from Landlord, for the Lease Term upon the terms and conditions of this
Lease, approximately three (3) acres of the property commonly known as Napa
County APN# 00-000-00 (the "Real Property") including the vineyard house,
tasting room, back barn, storage units and the supplemental living quarters (the
"Leased Premises"), as more particularly described on Exhibit "A" hereto.
Provided that Tenant is not in default of any term or condition of this Lease,
Tenant may elect to extend the Lease Term for two additional five (5) year terms
("Extended Term") by providing written notice to Landlord within ninety (90)
days prior to the expiration of the Lease term.
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2.2 Possession. Possession of the Leased Premises shall be delivered to
Tenant on the Commencement Date.
2.3 Permitting and Construction. As an obligation hereunder, Tenant
shall:
(a) Receive an extension of the date by which it is required to
complete a building on the 3200 sq. ft. concrete slab (the "Concrete Slab")
already in place on the Leased Premises. The extension shall be applied for and
received in accordance with Napa County policies.
(b) Complete a 3200 sq. ft. building on Concrete Slab (the "Facility"),
by August 1, 2001.
2.4 Condition. The Leased Premises are let to Tenant completely "as-is"
(including without limitation the state of title, the rights of any third
parties and any facts that would be disclosed by a survey or physical
inspection) and subject to all zoning regulations, restrictions, rules and
ordinances, building restrictions and other Laws now in effect or hereafter
adopted by any governmental authority having jurisdiction. The Leased Premises
are leased subject to their condition as of the Commencement Date, and the
Landlord does not make any representation or warranty, either express or
implied, as to the condition of the Leased Premises or as to the adequacy or
suitability of the Leased Premises for the purposes or needs of the Tenant, and
no representation or warranty shall be implied in fact or in law contrary to the
provisions of this Section 2.4. Tenant represents to Landlord that Tenant is
familiar with the Real Property and has examined the condition of the Leased
Premises prior to the execution and delivery of this Lease, has found the same
to be satisfactory for all purposes hereof and hereby accepts the Leased
Premises in its "as-is" condition.
ARTICLE 3
RENT
3.1 Base Rent.
A. For the period commencing on the Commencement Date and
continuing through the end of the Lease Term, Tenant shall pay to Landlord
twelve percent (12%) of Landlord's Invested Capital in the Leased Assets as the
annual "Base Rent." The Base Rent shall be payable in twelve equal monthly
installments each of which is equal to one percent (1%) of Landlord's Invested
Capital in the Leased Assets, payable in advance on or before the first day of
each month for each year of the Lease Term (each, a "Payment Date").
B. Should the Tenant exercise one or more of its five (5) year
options to extend the term of the Lease, the rental amount for each Extended
Term will be on terms and conditions which represent the lower of the fair
market rental at the time of exercise of the option or the continuation of the
then exiting Base Rent.
C. In addition to any increase in the Base Rent by reason of
an increase in Landlord's Invested Capital during the Lease Term, the Base Rent
or the rental amount payable
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during any Extended Term hereunder shall be increased annually by a fraction (if
larger than zero) which has as its numerator the Consumer Price Index for the
San Xxxxxxxxx Xxxxx Area during July of the adjustment year and as its
denominator the Consumer Price Index for the same area during July, 2000,
provided however, the CPI increase shall not exceed 3.5% per annum. The term
"CPI" shall mean the Consumer Price Index for all Urban Consumers, All Items,
for the Western area, 1982-1984=100 Base, as published by the Bureau of Labor
Statistics, United States Department of Labor, or its successor index.
3.2 Additional Rent.
(a) It is the express intent of the parties that Base Rent or any
rental amount under the Extended Term shall be absolutely net to Landlord in
each year during the existence of this Lease. Accordingly, commencing on the
Commencement Date and continuing throughout the entire Lease Term and the
Extended Term, Tenant shall pay as additional rent (the "Additional Rent"): (i)
property taxes as required by Article 10; (ii) insurance premiums as required by
Article 11; (iii) maintenance charges as required by Article 8; (iv) utilities
as required by Article 9 and (v) all other costs, expenses and obligations of
every kind and nature whatsoever relating to the Leased Premises that may arise
during the Lease Term; and (vi) any other charges due Landlord pursuant to this
Lease. Tenant hereby indemnifies Landlord against liability for any such
Additional Rent. A payment with respect to Additional Rent shall be deemed
delinquent if it is not paid on or before the date on which Landlord or the
Leased Premises becomes subject to any penalty or disability of any kind or
nature whatsoever because of the failure to timely discharge the sum due.
Landlord shall have the same remedies for a default in the payment of Additional
Rent as for a default in the payment of Base Rent.
(b) In addition to the Base Rent or any rental amount under the
Extended Term, Landlord shall receive as additional rent, five percent (5%) of
Tenant's gross revenues from the Leased Premises, including tasting room and
hospitality sales, and all other revenues from the use or occupation of the Real
Property other than the sale of wine by Tenant to wholesalers, retailers or
distributors ("Percentage Rent"). The Percentage Rent shall be paid to Landlord
annually on or before January 30th of the following year.
3.3 Payment of Rent. All rent shall be paid in lawful money of the
United States of America to Landlord to the account or accounts specified in
writing by Landlord (which account or accounts shall be with domestic U.S. banks
or other U.S. financial institutions), or at such other place as Landlord may
designate from time to time by written notice to Tenant. If applicable, Tenant's
obligation to pay Base Rent, Additional Rent and Percentage Rent shall be
prorated at the commencement and expiration of the Lease Term to reflect any
partial semiannual period.
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ARTICLE 4
NET LEASE; NONTERMINABILITY
4.1 Net Lease. This is a net lease and the Base Rent, Additional Rent,
Percentage Rent and all other sums payable hereunder by Tenant are absolute and
unconditional obligations of Tenant and, except as otherwise provided in this
Agreement, such sums shall be paid without notice or demand, and without
set-off, counterclaim, abatement, suspension, deduction or defense, deferment or
diminution of any kind.
4.2 Nonterminability. This Lease shall not terminate, nor shall Tenant
have any right to terminate this Lease (except as otherwise expressly provided
in this Lease) nor shall Tenant be entitled to any abatement or reduction of
rent hereunder, nor shall the obligations of Tenant under this Lease be
affected, by reason of the prohibition, limitation or restriction of Tenant's
Napa County use permit for the Leased Premises, or any default on the part of
Landlord under any other agreement to which Landlord and/or Tenant may be
parties.
Tenant agrees that it will remain obligated under this Lease in
accordance with its terms, and that it will not take any action to terminate,
rescind or avoid this Lease, notwithstanding (i) the bankruptcy, insolvency,
reorganization, composition, readjustment, liquidation, dissolution, winding-up
or other proceeding affecting Landlord in any such proceeding and (ii) any
action with respect to this Lease which may be taken by any trustee or receiver
of Landlord in any such proceeding or by any court in any such proceeding.
Tenant, notwithstanding any other provision of this Lease and
irrespective of any breach of any representation, covenant, agreement or
undertaking of any nature whatsoever made by Landlord, shall have no claim or
right to proceed against any creditor of Landlord, or representative of such
creditor or the holder of any note or other indebtedness of Landlord, or their
respective successors or assigns, because of any such breach or default on the
part of Landlord under this Lease. The foregoing provisions of this Article 4,
however, do not constitute a waiver of any remedy that Tenant may have in
damages against Landlord or any other person.
ARTICLE 5
USE OF LEASED PREMISES AND FACILITY
5.1 Permitted Use.
a. Tenant shall use the Leased Premises solely for the operation of a
winery and any other legally permitted use related to the operation of a winery,
and for no other use or purpose (the "Permitted Use"). Tenant shall not
maintain, commit or permit the maintenance or commission of any public or
private nuisance or waste on the Leased Premises or use, or permit the use of,
the Leased Premises for any unlawful purpose.
b. Landlord shall use the Facility for winemaking purposes, making wine
for Tenant or others, so as to comply with the requirements of Tenant's Napa
County use permit and BATF
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regulations. Landlord shall make Tenant's wine under the terms contained in a
separate custom crushing contract between Landlord and Tenant. The custom
crushing of Tenant's wine shall be accomplished by Landlord at Xxxxx Family
Winery or the Facility, or some combination of both.
5.2 Compliance With Laws. Subject to Section 5.3, at Tenant's sole
cost, Tenant shall promptly and properly observe and comply with all present and
future Laws applicable to the Leased Premises and Tenant's use and occupancy
thereof.
5.3 Hazardous Materials. Tenant, at its sole cost, shall comply with
all Laws relating to the generation, manufacture, storage, use, disposal,
emission, or release of any Hazardous Material by Tenant or its agents,
employees or contractors. If Hazardous Materials present on the Leased Premises
on the Commencement Date or generated, manufactured, stored, used, disposed of,
emitted, or released on or about the Leased Premises by Tenant or its agents
employees or contractors result in contamination or deterioration of water or
soil, then Tenant, at its sole cost, shall promptly take any and all action
necessary to remediate, repair, cleanup or detoxify such contamination as
required by Law. At any time prior to the expiration of the Lease Term, Tenant
shall have the right to conduct appropriate tests of water and soil and to
deliver to Landlord the results of such tests to demonstrate that no
contamination has occurred as a result of Tenant's use of the Leased Premises.
Tenant shall be solely responsible for, and shall protect, defend, indemnify and
hold Landlord harmless from and against, all claims, costs and liabilities,
including attorneys' fees and costs, to the extent arising out of the
generation, manufacture, storage, use, disposal, emission or release of
Hazardous Materials on or about the Leased Premises by Tenant or its agents,
employees, or contractors. Tenant's obligations under this paragraph shall
survive the termination of this Lease.
If any Hazardous Materials generated, manufactured, stored, used,
disposed of, emitted, or released on or about the property by Landlord or its
agents, employees or contractors result in contamination of water or soil, then
Landlord, at its sole cost, shall promptly take any and all action necessary to
remediate, repair, cleanup and detoxify such contamination as required by Law.
Landlord shall be solely responsible for, and shall protect, defend, indemnify
and hold Tenant harmless from and against, all claims, costs and liabilities,
including attorneys' fees and costs, to the extent arising out of the
generation, manufacture, storage, use, disposal, emission or release of
Hazardous Materials on or about the Leased Premises by Landlord or its agents,
employees, or contractors. Landlord's obligations under this paragraph shall
survive the termination of this Lease
ARTICLE 6
LIENS
6.1 No Liens Permitted. Tenant shall not, directly or indirectly,
create or permit to be created or permit to exist any lien, encumbrance or
charge on, pledge of or conditional sale or other title retention agreement with
respect to, the Leased Premises, Tenant's interest therein, or the Base Rent,
the Additional Rent or the Percentage Rent to be paid or discharged by Tenant
under this Lease (individually, a "Lien" and collectively, "Liens"), other than
any Lien created by
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or resulting from any act of Landlord or its employees, agents or contractors or
expressly permitted under the terms of this Lease.
6.2 Discharge of Liens. If any Lien (other than Liens excepted in
Section 6.1) shall at any time be filed against the Leased Premises, Tenant's
interest therein, or the Base Rent ,the Additional Rent or the Percentage Rent
to be paid or discharged by Tenant under this Lease, Tenant shall cause the same
promptly to be discharged of record.
6.3 Contest of Lien by Tenant. Notwithstanding any provision to the
contrary contained in this Lease, Tenant shall not be required to discharge any
Lien if (a) the Lien is currently contested by Tenant in good faith by
appropriate proceedings and (b) Tenant has, upon written demand by Landlord,
deposited with the court in which the proceedings are pending, cash, a
certificate of deposit, or a bond from a reputable corporate surety, in a sum
equal to 100% of the amount of the contested Lien, together with all interest,
penalties and other charges that may be assessed against or become a charge on
the Leased Premises as a consequence of the contest of, or delay in the
satisfaction of, the Lien.
6.4 Landlord's Right to Discharge Lien. If Tenant has not recorded the
bond described in Section 3143 of the California Civil Code (the "Civil Code")
or otherwise acted to protect the Leased Premises under any alternative or
successor statute, and if a final judgment has been rendered against Tenant by a
court of competent jurisdiction for the foreclosure of a mechanic's,
materialman's, contractor's or subcontractor's lien claim, and if Tenant has
failed to stay the execution of the judgment by lawful means or to pay the
judgment, Landlord shall have the right, but not the duty, to pay or otherwise
discharge, stay or prevent the execution of any such judgment or lien; and all
sums so paid, and/or any costs incurred by Landlord in connection therewith,
plus interest thereon at the lawful rate, shall be reimbursed by Tenant as
Additional Rent. No such payment or act of discharge shall constitute a waiver
of default, or of any right or remedy for default, by Landlord, or render
Landlord liable for any loss or damage arising therefrom.
ARTICLE 7
LEASEHOLD IMPROVEMENTS
7.1 Leasehold Improvements. Tenant may make and construct any
additions, alterations and improvements to the Leased Premises (collectively,
"Leasehold Improvements"), at Tenant's sole cost and without Landlord's consent,
that are separately identifiable, will not impair the originally intended
function and use of the Leased Premises and are readily severable without
causing material damage (other than damage repaired by Tenant) to the Leased
Premises ("Tenant's Improvements") provided however, Landlord shall have the
sole right to construct a wine production and storage facility under the
existing Napa County Use Permit outside of the Leased Property and costs
incurred by Landlord in the construction of such a facility shall not be deemed
Invested Capital in the Leased Assets under this Lease. Tenant, at its sole
cost, may make and construct other Leasehold Improvements ("Other
Improvements"), but only if Landlord has given its prior written consent thereto
(which shall not be unreasonably withheld or delayed.) All Leasehold
Improvements shall be made and constructed in good and workmanlike
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manner and in compliance with all applicable Laws and any other applicable
covenants, conditions and restrictions. Landlord's right of consent shall
encompass plans and specifications for proposed Other Improvements, construction
means and methods, the identity of any contractor or subcontractor to be
employed on the work of Other Improvements and the time for performance of such
work. Tenant shall procure and pay for all permits and licenses required in
connection with any Leasehold Improvement and shall discharge all Liens filed
against the Leased Premises in connection therewith.
ARTICLE 8
REPAIR AND MAINTENANCE
8.1 Tenant's Obligation to Repair and Maintain. Tenant agrees that it
will, at its sole cost, keep and maintain the Leased Premises in the condition
existing on the Commencement Date and keep and maintain the Winery and any and
all Leasehold Improvements in good repair, operating order, condition and
appearance (ordinary wear and tear excepted) and from time to time shall make
all structural and nonstructural, foreseen and unforeseen, and ordinary and
extraordinary changes and repairs of every kind and nature which may reasonably
be required to be made upon or in connection with the Leased Premises, including
the Winery and any and all Leasehold Improvements, in order to keep and maintain
the Leased Premises in good repair, operating order, condition and appearance
(ordinary wear and tear excepted). Tenant expressly waives all rights to make
repairs at the expense of Landlord as provided in Section 1942 of the Civil
Code, all rights provided for by Section 1941 of the Civil Code and the
provisions of Sections 1932 and 1933(4) of the Civil Code.
ARTICLE 9
UTILITIES
9.1. Utilities. Tenant shall promptly pay, as the same become due, all
expenses relating to the provision of water, waste discharge, gas, electricity,
telephone, pest control services, waste pick-up, and any other utilities,
materials or services furnished at the request of or used by Tenant in
connection with its use, occupancy and operation of the Leased Premises.
Landlord shall not be responsible or liable for any failure or interruption of
any such services.
ARTICLE 10
PROPERTY TAXES
10.1 Real Property Taxes. Tenant shall pay directly to the taxing
authority, prior to delinquency, the Real Property Taxes for the Leased Premises
to the extent such Real Property Taxes are for periods occurring during the
Lease Term. To the extent any Real Property Taxes are not separately assessed
and billed to Tenant, Tenant shall promptly pay the amount thereof as invoiced
to Tenant by Landlord.
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10.2 Taxes on Tenant's Property, Etc. Tenant shall pay before
delinquency any and all taxes, assessments, license fees, and public charges
levied, assessed, or imposed against any property of Tenant situated within the
Leased Premises or otherwise in connection with Tenant's use, occupancy or
operation of the Leased Premises (collectively "Other Taxes").
ARTICLE 11
INSURANCE
11.1 Insurance to be Maintained by Tenant. Tenant shall at all times
during the Lease Term maintain, at its sole cost, at least the following
insurance in respect of the Leased Premises and Tenant's use, occupancy and
operation thereof:
A. Insurance against loss or damage (i) by fire, flood,
lightning, explosion, smoke damage, vandalism and malicious mischief and other
risks from time to time included under standard "all-risk" and "extended
coverage" policies and (ii) subject to such deductibles and exclusions as
comparable companies in the same industry customarily maintain with respect to
similar property owned by them, by earthquake and such other risks as are or
shall customarily be insured against with respect to property that is similar to
the Leased Premises, in amounts sufficient to prevent Landlord or Tenant from
becoming a co-in-surer of any loss under the applicable policies but in any
event in amounts not less than 100% of the full replacement value of the Leased
Premises.
B. General public liability insurance against claims for
bodily injury, death or property damage occurring on, in or about the Leased
Premises, with primary limits of not less than $1,000,000 with respect to bodily
injury or death to any one person, not less than $2,000,000 with respect to any
one accident, and not less than $5,000,000 with respect to property damage.
C. Workers' compensation insurance or comparable insurance
under applicable laws covering all persons employed in connection with any work
done on or about the Leased Premises with respect to which claims for death or
bodily injury could be asserted against Landlord, Tenant or the Leased Premises.
D. Product liability insurance against claims for bodily
injury or death, in an amount which is customary, in accordance with prudent
industry practice for companies engaging in a business similar to that of
Tenant's.
E. Such other insurance upon or in respect of the Leased
Premises or the use, occupancy or operation thereof by Tenant in such amounts
and against such other insurable hazards as are at the time customarily
obtained, in accordance with prudent industry practice, in the case of property
similar to the Leased Premises and in the case of uses or operations similar to
Tenant's.
11.2 Other Insurance Matters. Each insurance policy maintained pursuant
to Section 11.1.A shall be written by insurers of recognized financial standing,
authorized by California
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regulatory officials to transact insurance business in California and approved
by Landlord, shall name Landlord as an additional insured and loss payee, as
their interests may appear, and shall provide that losses thereunder with
respect to the Leased Premises shall be adjusted only with the approval of
Landlord, and Tenant shall furnish to Landlord loss payable endorsements,
satisfactory in form and substance, as to each such policy. Each insurance
policy maintained pursuant to Sections 11.1.B, 11.1.D and 11.1.E shall name
Landlord as an additional insured thereunder, as their interests may appear,
shall provide that amounts payable thereunder shall be settled only with the
approval of Landlord and shall provide that all provisions thereof, except the
limits of liability (which shall be applicable to all insureds as a group) and
liability for premiums (which shall be solely a liability of Tenant), shall
operate in the same manner as if there were a separate policy covering each
insured, and Tenant shall furnish, or cause to be furnished, to Landlord
endorsements in form and substance satisfactory to each of them, with respect to
each such policy. In addition, each such policy shall (i) provide that if the
insurers cancel such insurance for any reason whatsoever, or the same is allowed
to lapse or expire, or such insurance coverage is reduced below the amounts
required hereunder, such cancellation, lapse, expiration or reduction shall not
be effective as to Landlord until at least 30 days after receipt by Landlord of
written notice by such insurers of such cancellation, lapse, expiration or
reduction, (ii) permit Landlord to make payments to effect continuation of such
insurance coverage upon notice of cancellation due to nonpayment of premiums,
(iii) provide that, in respect of the interests of Landlord in such policies,
the insurance shall not be invalidated by any action, inaction or neglect of
Tenant or any other person, (iv) insure Landlord's interests regardless of (A)
any breach or violation by Tenant of any warranties, declarations or conditions
contained in, or made in connection with, such policies, (B) any change in the
title to or ownership of the Leased Premises, (C) the use or operation of the
Leased Premises for purposes more hazardous than are permitted by the policy or
(D) any foreclosure or other proceeding or notice of sale relating to the Leased
Premises, (v) provide that such insurance is primary without right of
contribution from any other insurance which might otherwise be available to any
insured party, including, without limitation, any insurance obtained pursuant to
Section 11.4, whether collectible or not, and (vi) waive any right of
subrogation under the policy against Landlord and waive any setoff or
counterclaim or any other deduction, whether by attachment or otherwise, in
respect of any liability of Landlord.
11.3 Evidence of Insurance, Etc. Tenant shall deliver to Landlord
promptly after the execution and delivery of this Lease, certificates of
insurance, satisfactory to Landlord, evidencing all the insurance that is
required to be maintained by Tenant hereunder, and Tenant shall, at least 30
days prior to the expiration of any such insurance, deliver additional
certificates of insurance, satisfactory to Landlord, evidencing the renewal of
such insurance. Should Tenant fail to effect, maintain or renew any insurance
provided for in this Article 11, or to pay the premiums therefor, or to deliver
to Landlord any of such certificates, then and in any of such events after
giving written notice to Tenant of such failure, Landlord, at its option, but
without obligation so to do, may procure such insurance or certificates and pay
such premiums, and any sums expended by it shall be Additional Rent hereunder
and shall be repaid by Tenant within five days following the date on which such
expenditure shall be made by Landlord.
11.4 Other Insurance. Nothing in this Article 11 shall be construed to
prohibit Landlord from insuring, each at its own expense and for its exclusive
benefit, any portion of the
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Leased Premises, any liability with respect thereto or its interest therein, and
any insurance so maintained shall not provide for or result in a reduction of
the coverage or the amounts under any of the insurance policies required to be
maintained by Tenant pursuant this Article 11.
ARTICLE 12
EXONERATION AND INDEMNITY
12.1 Limitation on Landlord's Liability. Tenant assumes, and will meet
without exception, all risks and liabilities associated with its occupancy, use
and operation of the Leased Premises. Landlord shall not be liable to Tenant for
any loss or damage to person or property arising from any cause whatsoever
(other than to the extent of the negligence or willful misconduct of Landlord),
including without limitation theft, fire, act of God, acts of public enemy,
riot, strike, insurrection, war, court order, condemnation, requisition or order
of governmental body or authority or any damage or inconvenience that may arise
through repair or alteration of any part of the Leased Premises or failure to
make any such repair or alteration.
12.2 Tenant's Indemnification of Landlord. Tenant shall protect,
indemnify, defend and hold Landlord harmless from and against, any and all
liabilities, claims, demands, losses, costs (including attorneys' fees and costs
of defense), damages, injuries or expenses arising out of or in any way related
to (a) claims for work or labor performed, materials or supplies furnished to or
at the request of Tenant or in connection with performance of any work done for
the account of Tenant in the Leased Premises, (b) claims of bodily or personal
injury to or death of persons, or damage to property occurring in, on or about
the Leased Premises resulting directly or indirectly from the use, occupancy or
operation of the Leased Premises by Tenant or activities of Tenant in, on or
about the Leased Premises, (c) claims arising from the conduct of Tenant's
business at the Leased Premises, (d) any breach or default in the performance of
any obligations of Tenant under the terms of this Lease or (e) any violation by
Tenant of any Law, except to the extent that any of the foregoing is caused
directly by the negligence or willful misconduct of Landlord. Tenant waives all
claims against Landlord for damages to property, or to goods, wares, and
inventory stored in the Leased Premises and for injuries to persons in the
Leased Premises from any cause other than, and to the extent of, the negligence
or willful misconduct of Landlord, which is not covered by insurance collected
by Tenant. References in this Section 12.2 to the conduct or actions of Landlord
and Tenant shall include the conduct and actions of their respective agents
employees and contractors. The provisions of this Section 12.2 shall survive the
expiration or earlier termination of this Lease and, subject to Article 18,
shall survive any assignment, sale or transfer of this Lease, Tenant's leasehold
interest in the Leased Premises and any subletting thereof.
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ARTICLE 13
DAMAGE OR DESTRUCTION
13.1 Tenant's Duty to Restore. If the Leased Premises are damaged or
destroyed by any peril, then Tenant shall restore the Leased Premises to
substantially the same condition existing immediately prior to such damage or
destruction, but Tenant shall not be obligated to expend more than the insurance
proceeds available pursuant to the policies maintained under Article 11, and
this Lease shall continue in full force and effect without abatement of any kind
in the Base Rent or the Additional Rent. Such restoration shall be made in
accordance with standards for Leasehold Improvements set forth in Section 7.1,
and Landlord shall have approval rights in connection with such restoration
comparable to its consent rights for Other Improvements set forth in Section
7.1. All insurance proceeds available from casualty insurance maintained
pursuant to Article 11 shall be paid to a trustee for Landlord and Tenant solely
and in trust for such restoration.
ARTICLE 14
CONDEMNATION
14.1 Partial Taking of the Leased Premises. If less than 50% of the
Leased Premises are taken by means of (i) any taking by the exercise of the
power of eminent domain, whether by legal proceedings or otherwise, (ii) a
voluntary sale or transfer by Landlord to any condemnor under threat of
condemnation or while legal proceedings for condemnation are pending, or (iii)
any taking by inverse condemnation (a "Condemnation"), Landlord shall
reconstruct the portion of the Leased Premises lost by Condemnation at another
location on the Real Property, provided another location is available on the
Real Property and that the necessary building permits required to build the new
structure are obtained from the appropriate legal authorities and Landlord shall
not be obligated to expend more than the total amount of the Condemnation award
in connection with such reconstruction. Provided that Landlord is unable to
fully reconstruct the condemned portion of the Leased Premises, the Base Rent
and Additional Rent due shall be partially reduced, based on the ratio by which
the portion of the Lease Premises not reconstructed bears to the total Leased
Premises at the time of the taking. Such reconstruction shall be made in
accordance with standards for Leasehold Improvements set forth in Section 7.1.
The total amount of the condemnation award shall be paid to Landlord for such
reconstruction. Each party waives the provisions of the California Code of Civil
Procedure Section 1265.130 allowing either party to petition the Superior Court
to terminate this Lease in the event of a partial taking of the Leased Premises.
14.2 Total Taking of the Leased Premises. In the event more than 50% of
the Leased Premises are taken by a Condemnation: (i) Landlord shall not be
obliged to reconstruct the Leased Premises and (ii) the Lease shall terminate as
of the earlier of the date of title vesting by Condemnation or the date
possession is obtained by the condemning party and (iii) Landlord and Tenant
will share the condemnation award as follows: (A) Tenant shall be entitled to an
amount
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equal to any portion of the award granted in respect to Tenant's Improvements,
lost goodwill and moving costs; and (B) Landlord shall be entitled to any
balance of the condemnation award.
ARTICLE 15
DEFAULT AND REMEDIES
15.1 Events of Tenant's Default. The occurrence of any of the following
shall constitute an event of default (each, an "Event of Default") by Tenant:
A. Failure by Tenant to perform its obligations, agreements
and covenants in Article 18 (No Assignment or Subletting) or Article 20
(Surrender).
B. Abandonment of the Leased Premises by Tenant for a
continuous period in excess of 15 days.
C. Failure by Tenant to pay (i) any installment of Base Rent
by Tenant as and when due and payable under this Lease, and such failure to pay
continues for 10 days after written notice by Landlord of such failure to pay,
or (ii) all then current Real Property Taxes payable by Tenant pursuant to
Section 10.1 of this Lease, which if not paid would result in a lien on the
Leased Premises prior to the lien of any assignee of Landlord, and such failure
to pay continues for 10 days after written notice by Landlord of such failure to
pay.
D. Failure by Tenant to pay any Additional Rent or Percentage
Rent under this Lease on or before the date that such payment first becomes
delinquent; provided, however, that if Tenant, upon receiving notice of such
delinquency, may make such payment and pay any associated penalty (without
causing any adverse effect on the Leased Premises or Landlord's interest
therein) and does so, Tenant shall not be in default hereunder with respect to
such payment.
E. Failure by Tenant to perform any other obligation,
agreement or covenant under this Lease and such failure continues for 30 days
after written notice by Landlord of such failure.
F. Any representation or warranty made by Tenant in this Lease
shall prove to be untrue or incorrect in any material respect as of the date of
issuance or making thereof.
G. A general assignment by Tenant for the benefit of
creditors.
H. The filing of any voluntary petition in bankruptcy by
Tenant, or the filing of an involuntary petition by Tenant's creditors, which
involuntary petition remains undischarged for a period of 30 days.
In the event that under applicable law the trustee in bankruptcy or
Tenant has the right to affirm this Lease and continue to perform the
obligations of Tenant hereunder, such trustee or Tenant shall, in such time
period as may be permitted by the bankruptcy court having
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jurisdiction, cure all defaults of Tenant hereunder outstanding as of the date
of the affirmance of this Lease and provide to Landlord such adequate assurances
as may be necessary to ensure Landlord of the continued performance of Tenant's
obligations under this Lease.
I. The employment of a receiver to take possession of all or a
substantial portion of Tenant's assets or the Leased Premises, if such
receivership remains undissolved for a period of 10 days after creation thereof.
J. The attachment, execution or other judicial seizure of all
or a substantial portion of Tenant's assets or the Leased Premises, if such
attachment or other seizure remains undismissed or undischarged for a period of
30 days after the levy thereof.
15.2 Landlord's Remedies. Upon the occurrence of an Event of Default by
Tenant, Landlord shall have the following remedies, in addition to all other
rights and remedies provided by any Law or otherwise provided in this Lease, to
which Landlord may resort cumulatively or in the alternative:
A. Maintenance of Lease. Upon the occurrence of any Event of
Default, Landlord may, at Landlord's election, keep this Lease in effect and
enforce by an action at law or in equity all of its rights and remedies under
this Lease, including (i) the right to recover the rent and other sums as they
become due by appropriate legal action, (ii) the right to make payments required
by Tenant or perform Tenant's obligations and be reimbursed by Tenant for the
cost thereof with interest at a rate per annum equal to the maximum rate
permitted by applicable Law (the "Agreed Interest Rate"), from the date the same
is paid by Landlord until Landlord is reimbursed by Tenant, (iii) the remedies
of injunctive relief and specific performance to compel Tenant to perform its
obligations under this Lease, and (iv) the right to recover the rent as it
becomes due under this Lease as provided in Section 1951.4 of the Civil Code or
any successor code section.
B. Termination. Upon the occurrence of any Event of Default
under Section 15.1.C or Section 15.1.E (each, a "Payment Event of Default"),
Landlord may, at Landlord's election, terminate this Lease by giving Tenant
written notice of termination, in which event this Lease shall terminate on the
date set forth for termination in such notice, and at any time thereafter
Landlord may recover possession of the Leased Premises or any part thereof and
expel and remove Tenant and any other person occupying the Leased Premises, by
any lawful means, and again repossess and enjoy the Leased Premises without
prejudice to any of the remedies that Landlord may have under this Lease, or at
law or equity, by reason of such Event of Default or of such termination. Any
termination under this subparagraph shall not relieve Tenant from its obligation
to pay sums then due Landlord or from any claim against Tenant for damages or
rent previously accrued or then accruing. In no event shall any action by
Landlord, in the absence of a written election by Landlord to terminate this
Lease, constitute a termination of the Lease.
C. Rights Upon Termination. Should Landlord terminate this
Lease pursuant to the provisions of subsection B, Landlord shall have all the
rights and remedies of a landlord provided by Section 1951.2 of the Civil Code
or any successor code section. Upon such termination, in addition to any other
rights and remedies to which Landlord may be entitled
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under applicable law, Landlord shall be entitled to recover from Tenant: (i) the
worth at the time of award of the unpaid Base Rent, Additional Rent and
Percentage Rent which has accrued at the time of termination. ; (ii) the worth
at the time of award of-the amount by which the unpaid Base Rent which would
have been earned and Additional Rent for which Tenant would have been liable
after termination until the time of award exceeds the amount thereof that Tenant
proves could have been reasonably avoided; (iii) the worth at the time of award
of-the amount by which the unpaid Base Rent and Additional Rent for the balance
of the Lease Term after the time of award exceeds the amount thereof that Tenant
proves could be reasonably avoided; and (iv) any other amount necessary to
compensate Landlord for all the detriment proximately caused by Tenant's failure
to perform its obligations under this Lease or which, in the ordinary course of
things, would be likely to result therefrom. The "worth at the time of award" of
the amounts referred to in (i) and (ii) shall be computed with interest at the
Agreed Interest Rate. The "worth at the time of award" of the amount referred to
in (iii) shall be computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of the award plus one
percent (1 %).
D. Other Remedies. Landlord may avail itself of any and all
other remedies provided by any statute or otherwise available at law or in
equity (including, without limitation, the right to recover damages resulting
from such Event of Default).
Tenant shall be liable for all costs and expenses (including attorney's
fees and disbursements and the costs of any re-entry) incurred by Landlord by
reason of the occurrence of any Event of Default and the exercise of Landlord's
remedies with respect thereto.
ARTICLE 16
WAIVER
16.1 Waiver. The waiver by Landlord of any breach of any term, covenant
or condition contained in this Lease shall not be deemed to be a waiver of such
term, covenant or condition on any subsequent breach of the same or any other
term, covenant or condition herein contained. The subsequent acceptance of Base
Rent, Additional Rent or Percentage Rent by Landlord shall not be deemed to be a
waiver of any preceding breach by Tenant of any term, covenant or condition of
this Lease, other than the failure of Tenant to pay the particular Base Rent,
Additional Rent or Percentage Rent, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such Base Rent, Additional Rent or
Percentage Rent. No delay or omission of Landlord to exercise any right or
remedy shall be construed as a waiver of any such right or remedy or of any
default by Tenant under this Lease. No covenant, term or condition of this Lease
shall be deemed to have been waived by Landlord, unless such waiver be in
writing by Landlord. No payment by Tenant or receipt by Landlord of a lesser
amount than the Base Rent, Additional Rent or Percentage Rent herein provided
shall be deemed to be other than on account of the earliest amount due and
payable hereunder, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment be deemed an accord and satisfaction,
and Landlord may accept any such check or payment without prejudice to
Landlord's right to recover the balance of such Base Rent, Additional Rent or
Percentage Rent or to pursue any other remedy provided for in this Lease.
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ARTICLE 17
LATE PAYMENTS
17.1 Late Payment Charge. Tenant recognizes that late payment of any
Base Rent or other sum due hereunder from Tenant to Landlord will cause Landlord
to incur costs and expenses not originally contemplated under this Lease,
including but not limited to certain administrative expenses, collection costs,
processing and accounting expenses, the extent of which additional costs and
expenses is extremely difficult and economically impractical to ascertain.
Tenant therefore agrees that if any Base Rent or any other payment due hereunder
from Tenant to Landlord remains unpaid 10 days after said amount is due, the
amount of such unpaid Base Rent or other payment shall be increased by a late
charge to be immediately paid Landlord by Tenant in an amount equal to $1000
with respect to unpaid Base Rent and 4% of any other sum, including Additional
Rent and Percentage Rent. Tenant and Landlord agree that such amount is a
reasonable estimate of the loss and expense to be suffered by Landlord as a
result of such late payment by Tenant and may be charged by Landlord to defray
such loss and expense. The obligation to pay Base Rent or other payments on or
before the day on which they are due, and the terms of this Article 17, in no
way affect Landlord's rights and remedies under this Lease or otherwise in the
event any such Base Rent or other payment is unpaid after the date due.
17.2 Reimbursement. Tenant shall reimburse Landlord in full for any
Additional Rent payment Lessor shall make to cure Tenant's delinquency and for
any penalty or additional cost attached to the delinquent payment. Nothing
contained in this Lease shall obligate Landlord to mitigate any penalty or
disability by advancing the amount of any Additional Rent before it first
becomes delinquent.
ARTICLE 18
NO ASSIGNMENT AND SUBLETTING BY TENANT
18.1 No Assignment or Subletting. Tenant shall not, either voluntarily
or involuntarily, or by operation of law, assign this Lease or any interest
therein, and shall not sublet the Leased Premises or any part thereof, or any
right or privilege pertinent thereto, or suffer of permit any other person (the
officers, employees, agents, servants, invitees, guests, or customers of Tenant
excepted) to occupy or use the Leased Premises, or any portion thereof, any such
assignment or subletting without Landlord's prior written consent being
absolutely prohibited. Any transfer of this Lease by merger, consolidation or
dissolution or any sale of assets or any other change in controlling ownership
interest in Tenant (whether in one transaction or a series of transactions)
shall constitute an assignment for the purposes of this Lease. Any assignment or
subletting without Landlord's prior written consent shall be void and shall
constitute default under this Lease. Landlord's waiver whether express or
implied or consent to any assignment or sublease shall not relieve Tenant from
any obligation under this Lease, or constitute a waiver or consent with respect
to subsequent or different subleases or assignments, unless the waiver consent
shall expressly so provide. The acceptance of rent by Landlord from any other
person shall not be
16
deemed to be a waiver of any provision of this Section 18.1. Landlord's consent
to any assignment or sublease shall in no way relieve Tenant of its obligations
under this Lease.
ARTICLE 19
ASSIGNMENT BY LANDLORD
19.1 Assignment by Landlord. This Lease and all Base Rent, Additional
Tent, Percentage Rent and landlord's right, title and interest in and to the
Leased Premises may be assigned or transferred in whole or in part by Landlord
at any time, with notice to Tenant and without the consent of Tenant. Upon
notice to Tenant of any such assignment, the Base Rent, Additional Rent,
Percentage Rent and other sums payable by Tenant which are the subject matter of
the assignment shall be paid to or upon the written order of the assignee, and
each such payment made by Tenant to the assignee shall discharge Tenant's
obligation to Landlord hereunder with respect to such payment.
ARTICLE 20
SURRENDER
20.1 Surrender of the Leased Premises. Immediately prior to the
expiration or upon the earlier termination of this Lease, Tenant shall remove
all Leasehold Improvements installed in the Leased Premises by Tenant which
Tenant is required to remove by the terms of this Lease, trade fixtures and
other personal property, and vacate and surrender the Leased Premises to
Landlord in the condition in which it is required to be maintained pursuant to
this Lease, reasonable wear and tear excepted. Any such Leasehold Improvements,
trade fixtures and other personal property of Tenant not so removed shall be
deemed abandoned by Tenant and shall, without further act or deed, become the
property of Landlord. Tenant shall repair any damage to the Leased Premises
occasioned by the removal of such Leasehold Improvements, trade fixtures and
other personal property of Tenant.
ARTICLE 21
GENERAL PROVISIONS
21.1 Landlord's Right to Enter. Landlord, its assignee and their
respective agents and representatives may enter the Leased Premises at any
reasonable time for the purpose of (i) inspecting the same, (ii) posting notices
of nonresponsibility, (iii) supplying any service to be provided by Landlord to
Tenant, (iv) making necessary repairs, (v) performing Tenant's obligations when
Tenant has failed to do so within 30 days after written notice from Landlord,
and/or (vi) in case of an emergency. However, Landlord may not so enter the
Leased Premises until it has first given Tenant at least 24 hours prior notice
of its intention to do so (except in case of an emergency).
21.2 Landlord's Right to Perform for Tenant. If Tenant fails to duly
and promptly pay, perform or comply with any of its obligations, covenants and
agreements under this Lease, after
17
giving written notice to Tenant of such failure, Landlord may itself pay,
perform or comply with any of such obligations for the account of Tenant,
without thereby waiving any Event of Default, and any amount paid or expense
incurred by Landlord in connection therewith (including attorneys' fees and
disbursements) shall together with interest at the Agreed Interest Rate, be
payable to Landlord on demand.
21.3 Holding Over. In the event Tenant remains in possession of the
Leased Premises after the expiration or earlier termination of this Lease, such
holding over shall be construed to be a tenancy from month-to-month, terminable
by either party giving 30 days' prior written notice to the other party, upon
the same terms and conditions set forth in this Lease (insofar as the same may
be applicable) at a monthly rent equal to 150% of the Base Rent payable
immediately prior to such expiration or earlier termination divided by 12. If
Tenant shall retain possession of the Leased Premises or any part thereof
without Landlord's consent following the expiration or earlier termination of
this Lease for any reason, Tenant shall indemnify and hold Landlord harmless
from and against any loss, damage or liability resulting from Tenant's delay in
surrendering the Leased Premises, including without limitation any claims made
by any succeeding tenant based upon such delay.
21.4 Graphics and Signage. Tenant may, at its sole cost and subject to
the approval of any governmental entity having jurisdiction, erect a monument
sign or signs on the Leased Premises. All signs, notices and graphics of every
kind or character, visible in or from the exterior of the Leased Premises,
including, but not limited to, the monument sign described above, shall be
subject to Landlord's prior written consent, which shall not be unreasonably
withheld or delayed.
21.5 Estoppel Certificates. Each party agrees, following any request by
the other, to promptly execute and deliver an estoppel certificate upon which
the requesting party and any others it designates may rely (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 is modified,
is in full force and effect, (ii) stating the date to which the rent and other
charges are paid in advance, if any, (iii) acknowledging that there are not, to
the certifying party's knowledge, any uncured defaults on the part of the other
party hereunder, or if there are stating their nature, and (iv) certifying such
other information about the Lease as may be reasonably required by the
requesting party.
21.6 Notices. Any notice, request, demand or other communication
required or permitted to be given hereunder shall be in writing, may be
personally served, telecopied, telexed or sent by an internationally recognized
overnight delivery or courier service and shall be deemed to have been given
when delivered in person or by courier or overnight service or upon receipt of a
telecopy or telex, addressed to the recipients as follows:
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Tenant: Andretti Wine Group
0000 Xxx Xxxxx Xxxx
Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a Copy to: Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Landlord: Xxxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxx Xxxxxx
Xxxx, XX 00000
Attn: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may change its address by giving notice thereof to the other
parties in accordance with this section.
21.7 Corporate Authority. Tenant represents and warrants to the other
that each individual executing this Lease on its behalf is duly authorized to
execute and deliver this Lease on its behalf in accordance with its Bylaws and
that this Lease is a legal, valid and binding obligation of such party,
enforceable against it in accordance with its terms.
21.8 No Partnership, Etc. Nothing contained in this Lease shall create
a partnership, joint venture, or other similar arrangement or relationship
between Landlord and Tenant. Neither Landlord nor Tenant shall be liable, except
as otherwise expressly provided for in this Lease, for any obligation or
liabilities incurred by the other, and their relationship is, and shall remain,
only that of landlord and tenant.
21.9 Memorandum of Lease. This Lease shall not be recorded, but if
either party requests the other party to do so, the parties shall execute a
memorandum of lease, in recordable form and cause such memorandum to be
recorded, at the requesting party's cost.
21.10 Successors and Assigns. This Lease shall be binding upon and
inure to the benefit of the parties and their respective permitted successors
and assigns.
21.11 No Merger. There shall be no merger of this Lease or of the
leasehold estate hereby created with the fee estate in the Leased Premises or
any part thereof, as the case may be,
19
by reason of the fact that the same person may acquire or hold, directly or
indirectly, this Lease or the leasehold estate hereby created or any interest in
this Lease or in such leasehold estate and the fee estate in the Leased Premises
or any interest in such fee estate, and this Lease shall not be terminated for
any reason except as expressly provided in this Lease.
21.12 Further Assurances. Each party agrees to cooperate with the other
party and take all actions reasonably required to carry out the intentions of
the parties under this Lease.
21.13 Applicable Law; Attorneys' Fees. This Lease shall be governed by,
construed in accordance with, and interpreted under the laws of the State of
California. If any dispute arises under or by reason of this Lease, the party
prevailing in such dispute shall be entitled to recover its costs, including
reasonable attorneys' fees.
21.15 Entire Agreement. This Lease and the other documents and
agreements referenced herein embody the entire agreement and understanding
between the parties hereto relating to the subject matter hereof, and supersede
all prior negotiations, agreements and understandings, oral or written.
21.16 Modification; Waiver. This Lease may be amended, waived or
discharged only by an instrument in writing executed by the party against whom
enforcement of such amendment, waiver or discharge is sought, expressly
indicating the intention to amend, waive or discharge this Lease. No waiver by
any party or any failure or refusal by another party to comply with its
obligations shall be deemed a waiver of any other or subsequent failure or
refusal to so comply.
21.17 Counterparts. This Lease may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
21.18 Interpretation. In this Lease the neuter gender includes the
feminine and masculine, the singular number includes the plural, and the words
"person" and "party" include a corporation, partnership, firm, trust, or
association, whenever the context so requires.
21.19 Captions. The captions of the articles and sections of this Lease
are for convenience of reference only, and the words contained therein shall in
no way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this Lease.
21.20 Non-Business Days. Whenever notice must be given, documents must
be delivered or any other action must be taken under this Lease by a last day
that falls on a day on which banking institutions in the States of California
are authorized by law to close (a "Non-Business Day"), then the parties shall
have until the next following day that is not a Non-Business Day to take such
action.
21.21 Severability. If any term, provision, covenant or condition of
this Lease is held by a court of competent jurisdiction to be invalid, void or
unenforceable, either in whole or in part, such decision shall not affect the
remainder of this Lease; and it is hereby declared to be the
20
intention of the parties that the term, provision, covenant or condition held
invalid, void or unenforceable shall be limited by such court to the extent
necessary to make it valid and enforceable.
21.22 Time of Essence. Time is of the essence in this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
with the intent to be legally bound thereby, as of the date first above written.
LANDLORD: TENANT:
AWG, LTD.
a Nevada corporation
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxxx
--------------------------------- ----------------------
Xxxxxxx X. Xxxxx
Its: CEO
---------------------
/s/ Xxxx Xxxxx
---------------------------------
Xxxx Xxxxx
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