FIRST AMENDMENT TO LEASE
(MOSSIMO)
This First Amendment to Lease (the "Amendment") dated July 10 , l998, is
entered into by an between THE IRVINE COMPANY, a Delaware corporation
("Landlord"), and MOSSIMO, INC., a California corporation ("Tenant").
RECITALS.
A. On May 3, 1996, Landlord and Tenant entered into that certain
Industrial Lease ("Lease") for space in the buildings located at 5 and 0
Xxxxxxx, Xxxxxx, Xxxxxxxxxx ("Premises").
B. Landlord and Tenant now desire to terminate the Lease with respect to
all of the office building located at 9 Pasteur and a portion of the warehouse
building at 5 Pasteur (the "Recaptured Space") and to modify the Lease for the
remaining Premises as set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of mutual covenants, conditions and
agreements contained herein and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
agree as follows:
1. EFFECTIVE DATE OF LEASE MODIFICATIONS. The lease modifications set
forth in this Amendment shall be effective only upon the satisfaction of each of
the following conditions (the "Effective Date"):
a. The payment to Landlord concurrently with the execution hereof of
the sum of One Hundred Eighty-One Thousand Two Hundred Twenty-Seven
Dollars and Thirty-Five Cents ($181,227.35) (the "Downsize Fee") which
represents payment of the Preliminary Cost Estimate for Tenant
Improvements to be completed pursuant to the Work Letter attached to
this Amendment as Exhibit B;
b. A payment in the amount of the difference, if any, between the
Downsize Fee and the Completion Cost but subject to Landlord's
obligation to refund the balance of the Downsize Fee, if any, in
excess of the Completion Cost, all as more fully described in the Work
Letter;
c. Landlord shall have entered into a lease for the Recaptured Space with
Xxxxxx'x Rossmoor, Inc. ("Xxxxxx'x") upon terms and conditions
reasonably satisfactory to Landlord (the "Xxxxxx'x Lease") and the
Commencement Date under the Xxxxxx'x Lease (which shall occur upon
completion of the Tenant Improvements per the Work Letter but not
sooner than October 1, 1998 as set forth more fully in the Xxxxxx'x
Lease) shall have occurred.
d. Landlord shall have received a release and estoppel letter from CB
Xxxxxxx Xxxxx substantially in the form attached hereto as Exhibit C
confirming that Landlord shall have no liability for any brokerage
commissions payable in connection with this Amendment and/or the
Xxxxxx'x Lease.
Within fifteen (15) days after the Effective Date, Landlord shall prepare
and deliver to Tenant for execution a memorandum confirming the occurrence and
date of the Effective Date.
2. AMENDMENT OF BASIC LEASE PROVISIONS. The following Basic Lease
Provisions are amended and restated as of the Effective Date to read as follows
(Numbered paragraphs below refer to the corresponding item number of the Basic
Lease Provisions of the Lease):
1. Address of Building: 5 Pasteur
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3. Use of Premises: General office, shipping, warehousing,
manufacturing, fabric cutting, wholesale and off-premises phone or
electronic sales of Tenant's of merchandise, construction and painting
of promotional materials and fixtures, (including without limitation,
tables, stands, racks, displays and trade show booths) and other uses
incidental to Tenant's business which do not violate applicable laws
and restrictions.
6. Basic Rent: Commencing on the date which is Forty-Six (46) days after
the Effective Date (the "Rent Reduction Date"), Tenant's Basic Rent
under this Lease shall be reduced to Forty-one Thousand Forty-four
Dollars ($41,044.00) per month, based on $0.456 per rentable square
foot. During the period from the Effective Date to the Rent Reduction
Date, a portion of Tenant's Basic Rent paid to Landlord under this
Lease, up to an aggregate amount of One Hundred Thirteen Thousand Nine
Hundred Eleven Dollars and Fifty Cents ($113,911.50), shall be
credited towards the rent due for such period for the Recaptured Space
and Xxxxxx'x shall not be obligated under the Xxxxxx'x Lease to pay
Basic Rent for such period.
8. Floor Area of Premises: Approximately 90,008 rentable square feet.
9. Security Deposit: $80,000.00 - See Section 4.3 hereof.
11. Additional Insureds: Insignia/ESG of California, Inc.
12. Address for Payments and Notices:
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LANDLORD: TENANT:
Insignia/ESG of California, Inc. Mossimo, Inc.
0 Xxx, Xxxxx 000 0 Xxxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
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with a copy of notices to:
Irvine Industrial Company
X.X. xxx 0000
Xxxxxxx Xxxxx, XX 00000-0000
Attn: Vice President, Industrial
Operations
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14. Vehicle Parking Spaces: Seventy-eight (78)
15. Plan Approval Date: July 20, 1998
3. MODIFICATION OF OTHER LEASE PROVISIONS. As of the Effective Date, the
following designated sections of the Lease shall be amended, modified or
restated in their entirety (as indicated below) as follows:
1. SECTION 2.1 is restated to read as follows:
SECTION 2.1 LEASED PREMISES. As of the Effective Date, the
Premises shall be as shown in Exhibit A (the "Premises") containing
approximately the floor area set forth in Item 8 of the Basic Lease
Provisions. It is understood that the Premises consists of a
portion of one building (the "Building"). The Premises is a portion
of the project shown in EXHIBIT Y (the "Project").
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b. SECTION 3.4. RIGHT TO EXTEND LEASE. Deleted in its entirety.
c. Subparagraph (a) of SECTION 4.2 OPERATING EXPENSES is restated to read
as follows:
(a) Tenant shall pay to Landlord, as additional rent, Tenant's
Share of "Operating Expenses", as defined below, incurred by Landlord
in the operation of the Building and Project. The term "Tenant's
Share" means that portion of an Operating Expense determined by
multiplying the cost of such item by a fraction, the numerator of
which is the rentable floor area of the Premises and the denominator
of which is the total rentable square footage of the area, as of the
date on which the computation is made, to be charged with such
Operating Expense. As of the date of this Amendment, the total
rentable square footage of the Premises is 90,008, the total rentable
square footage of the Building is 164,000 and there are no other
buildings in the Project.
d. The following is added to SECTION 4.3. SECURITY DEPOSIT:
As of the Effective Date, the Security Deposit held by Landlord shall
be reduced to Eighty Thousand Dollars ($80,000) and the balance of
Thirty-One Thousand Six Hundred Ninety-Four Dollars ($31,694.00) (the
"Released Deposit") shall be applied to Basic Rent next coming due
under this Lease.
e. The following is added to SECTION 5.1. USE:
Tenant shall not do or permit anything to be done in or about the
Premises which will in any way interfere with the rights of other
occupants of the Building or the Project, or use or allow the Premises
to be used for any unlawful purpose, nor shall Tenant permit any
nuisance or commit any waste in the Premises or the Project. Tenant
shall not perform any work or conduct any business whatsoever in the
Project other than inside the Premises.
f. SECTION 5.2 is restated to read as follows:
SECTION 5.2 SIGNS. Within thirty (30) days after the Effective Date,
Tenant shall at its sole cost and expense remove all existing signs on
9 Pasteur and 5 Pasteur except for the sign on the exterior wall of 5
Pasteur designated on Exhibit A hereto and to repair any resulting
damage to either building. Landlord acknowledges that Tenant may elect
to cause Xxxxxx'x to remove Tenant's signs as required by this
Amendment pursuant to a separate written agreement between Tenant and
Xxxxxx'x but Landlord shall have no obligation with respect to any
such agreement and Tenant shall remain liable to Landlord for the
performance of its obligations under this Section. Thereafter, except
as approved in writing by Landlord, in its reasonable discretion,
Tenant shall have no right to maintain identification signs in any
location in, on or about the Premises, the Building or the Project and
shall not place or erect any signs, displays or other advertising
materials that are visible from the exterior of the Building. The
size, design, graphics, material, style, color and other physical
aspects of any permitted sign shall be subject to Landlord's written
approval prior to installation (which approval may be withheld in
Landlord's discretion), any covenants, conditions or restrictions
encumbering the Premises, Landlord's signage program for the Project,
as in effect from time to time and approved by the City of Irvine
("Signage Criteria"), and any applicable municipal or other
governmental permits and approvals. Tenant acknowledges having
received and reviewed a copy of the current Signage Criteria for the
Project. Tenant shall be responsible for the cost of any permitted
sign, including the fabrication, installation, maintenance and removal
thereof. If Tenant fails to maintain its sign, or if Tenant fails to
remove
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same upon termination of this Lease and repair any damage caused by
such removal, Landlord may do so at Tenant's expense.
g. The following is added to SECTION 6.4. PARKING:
There shall be no overnight parking of any vehicles of any kind unless
otherwise authorized by Landlord, and vehicles which have been
abandoned or parked in violation of the terms hereof may be towed away
at the owner's expense. Landlord shall have the right to construct,
maintain and operate lighting facilities within the parking areas; to
change the area, level, location and arrangement of the parking areas
and improvements therein; to impose reasonable restrictions on parking
by tenants, their officers, agents and employees; and to do and
perform such other acts in and to the parking areas and improvements
therein as, in the use of good business judgment, Landlord shall
determine to be advisable. Washing, waxing, cleaning or servicing of
vehicles, or the storage of vehicles for 24 hour periods, is
prohibited unless otherwise authorized by Landlord.
h. SECTION 7.3 ALTERATIONS is restated to read as follows:
SECTION 7.3. ALTERATIONS.
(a) Tenant shall make no alterations, additions or improvements
to the Premises without the prior written consent of Landlord, which
consent may be given or withheld in Landlord's sole discretion.
Notwithstanding the foregoing, Landlord shall not unreasonably
withhold its consent to any alterations, additions or improvements to
the Premises which cost less than One Dollar ($1.00) per square foot
of the improved portions of the Premises (excluding warehouse square
footage) and do not materially (i) affect the exterior of the Building
or outside areas (or be visible from adjoining sites), or (ii) affect
or penetrate any of the structural portions of the Building, including
but not limited to the roof, or (iii) require any change to the basic
floor plan of the Premises, any substantial change to any structural
or mechanical systems of the Premises, or any governmental permit as a
prerequisite to the construction thereof, or (iv) unreasonably
interfere in any manner with the proper functioning of or Landlord's
access to any mechanical, electrical, plumbing or HVAC systems,
facilities or equipment located in or serving the Building, or
(v) diminish the value of the Premises in Landlord's reasonable
determination. Landlord may impose, as a condition to its consent,
any requirements that Landlord in its discretion may deem reasonable
or desirable, including but not limited to a requirement that all work
be covered by a lien and completion bond satisfactory to Landlord and
requirements as to the manner, time, and contractor for performance of
the work. Tenant shall obtain all required permits for the work and
shall perform the work in compliance with all applicable laws,
regulations and ordinances, all covenants, conditions and restrictions
affecting the Project, and the Rules and Regulations (hereafter
defined). If any governmental entity requires, as a condition to any
proposed alterations, additions or improvements to the Premises by
Tenant, that improvements be made to the Common Areas, and if Landlord
consents to such improvements to the Common Areas, then Tenant shall,
at Tenant's sole expense, make such required improvements to the
Common Areas in such manner, utilizing such materials, and with such
contractors (including, if required by Landlord, Landlord's
contractors) as Landlord may require in its sole discretion. Under no
circumstances shall Tenant make any improvement which incorporates any
Hazardous Materials, including without limitation asbestos-containing
construction materials into the Premises. Any request for Landlord's
consent shall be made in writing and shall contain architectural plans
describing the work in detail reasonably satisfactory to Landlord.
Unless Landlord otherwise agrees in writing, all alterations,
additions or improvements affixed to the Premises (excluding moveable
trade fixtures and
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furniture) shall become the property of Landlord and shall be
surrendered with the Premises at the end of the Term, except that
Landlord may, by notice to Tenant, require Tenant to remove by the
Expiration Date, or sooner termination date of this Lease, all or any
alterations, decorations, fixtures, additions, improvements and the
like installed either by Tenant or by Landlord at Tenant's request and
to repair any damage to the Premises arising from that removal.
Except as otherwise provided in this Lease or in any Exhibit to this
Lease, should Landlord make any alteration or improvement to the
Premises at Tenant's request, Landlord shall be entitled to prompt
reimbursement from Tenant for all costs incurred.
(b) As contemplated by that certain letter agreement between
Landlord and Tenant dated October 27, 1997, a copy of which is
attached hereto as Exhibit D, upon Landlord's written request, Tenant
shall remove at its sole cost upon expiration or earlier termination
of this Lease the guard shack at the entry drive to the Project, the
sign wall at the entry arch and all paint grade tenant doors and
replace same with building standard doors.
i. The following is added to ARTICLE XVIII BROKER'S COMMISSION:
Tenant and Landlord each represent and warrant to the other that it
has had no dealings with any real estate broker or agent in connection
with the negotiation of this Amendment and/or the Xxxxxx'x Lease other
than CB Xxxxxxx Xxxxx and Tenant shall be solely responsible for any
commission payable to said broker. Landlord and Tenant shall each
indemnify, defend and hold the other harmless from any cost, expense
or liability (including reasonable attorneys' fees) for any
compensation, commissions or charges claimed by any other real estate
broker or agent employed or claiming to represent or to have been
employed by the indemnifying party in connection with the negotiation
of this Amendment and/or the Xxxxxx'x Lease.
4. GENERAL PROVISIONS.
a. EFFECT OF AMENDMENTS. The Lease shall remain in full force and effect
to the extent that it is modified by this Amendment. In the event of an
inconsistency between the terms of the Lease and this Amendment, the Lease shall
be construed so as to incorporate the effect of the modifications set forth
herein.
b. ENTIRE AGREEMENT. This Amendment embodies the entire understanding
between Landlord and Tenant with respect to the modifications set forth above
and can be changed only by a writing signed by Landlord and Tenant.
c. COUNTERPARTS. If this Amendment is executed in counterparts, each is
hereby declared to be an original; all, however, shall constitute but one and
the same amendment. In any action or proceeding, any photographic, photostatic,
or other copy of this Amendment may be introduced into evidence without
foundation.
d. DEFINED TERMS. All words commencing with initial capital letters in
this Amendment defined in the Lease shall have the same meaning in this
Amendment as in the Lease, unless they are otherwise defined in this Amendment.
e. CORPORATE AND PARTNERSHIP AUTHORITY. If Tenant is a corporation or
partnership, or is comprised of either or both of them, each individual
executing this Amendment for the corporation or partnership represents that he
or she is duly authorized to execute and deliver this Amendment on behalf of the
corporation or partnership and that this Amendment is binding upon the
corporation or partnership in accordance with its terms.
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f. ATTORNEYS' FEES. The provisions of the Lease respecting payment of
attorneys' fees shall also apply to this Amendment.
LANDLORD: TENANT:
THE IRVINE COMPANY, Mossimo, Inc.,
a Delaware corporation a California corporation
By /s/ Xxxxxxxx X. Xxxxxx By /s/ Xxxx Xxxxxxx
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Xxxxxxxx X. Xxxxxx, President
Irvine Industrial Company, Title: President
a division of The Irvine Company ---------------------------
By /s/ Xxxxxxx X. Sim By /s/ Xxxxx Xxxxxxxxxx
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Xxxxxxx X. Sim, Group President Title: Secretary and Treasurer
Investment Properties ---------------------------
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