LEASE
1. BASIC PROVISIONS.
1.1 This Lease ("Lease"), is hereby entered into by and between EDDIA
TRUST ("Lessor") and ASIA PACIFIC CORPORATION and XXXXX X XXXXXXX(collectively
"Lessee"), all of whom are sometimes referred to collectively as the "Parties,"
or individually as a "Party".
1.2 (a) PREMISES. That certain portion of the Building, commonly known
by the street address of 000 XXXXX XXXXX XXXXX, located in the City of Xxxxxxx
Hills, County of Los Angeles, State of California, with zip code of 90210
("Building"), described as the former Bistro Restaurant with an approximate size
of 12,000 square feet ("Premises"). In addition to Lessee's rights to use and
occupy the Premises as hereinafter specified, Lessee shall have non-exclusive
rights to the Common Areas (as defined in Paragraph 2.4 below) as hereinafter
specified, but shall not have any rights to the roof, exterior walls or utility
raceways, except for the right to approve any changes by Lessor to the exterior
of the Premises. The Premises, the Building, the Common Areas, the land upon
which they are located, along with all other buildings and improvements thereon,
are herein collectively referred to as the "Project." (Also see Paragraph 2.)
1.2 (b) PARKING. From 9:00 am. to 6:00 p.m. each day during the term of
this lease, Lessee shall be entitled to the exclusive use of six (6) parking
spaces at the Building, and from 6:00 p.m. until closing shall be entitled to
the use of fifteen (15) parking spaces at the Building. Lessee shall be entitled
to install signage reflecting its rights to parking at the Premises as set forth
herein. As the adherence by third parties to the terms mentioned herein is
dependent on parties other than the Lessor and as Lessor is normally not present
at the Premises to monitor third-party parking, Lessor does not take
responsibility for the enforcement of this provision as against third parties.
(Also see Paragraph 2.3.) However, Lessee shall have the right to enforce this
provision as against third parties.
1.3 LEASE TERM. The initial term of the Lease shall be ten (10) years
("Original Term") commencing on March 1, 1996 ("Commencement Date") and ending
on February 28, 2006 ("Expiration Date"). Notwithstanding anything to the
contrary in this Lease, but provided that Lessee is not in default of any of its
obligations under the within Lease at the time for exercise of any option by
Lessee , Lessee shall have options to extend the term of the Lease for two (2)
additional terms of five (5) years each. (Also see Paragraph 3).
1.4 MONTHLY BASE RENT. During the first two years of this Lease, the
Monthly Base Rent shall be $18,000.00 per month, payable upon the termination of
the Free Rent Period described below, and thereafter upon the first day of each
calendar month through and including February 1, 1998. For the third year of the
Lease Term, the Monthly Base Rent shall be $20,000.00 per month, payable upon
the first day of each calendar month through and including February 1, 1999.
Thereafter for the fourth through tenth years of the Lease term, the Monthly
Base Rent of $20,000.00 shall be increased annually by an amount equal to the
annual percentage increase for the prior calendar year in the Consumer Price
Index of the Bureau of Labor Statistics of the US. Department of Labor for the
Los Angeles Metropolitan Area ("CPI"). In the event the compilation and/or
publication of the CPI shall be transferred to any other governmental departure
or bureau or agency or shall be discontinued, then the Index most nearly the
same as the CPI shall be used to nuke such calculation. In the event that Lessor
and Lessee cannot agree on such alternative Index, then the matter shall be
submitted for decision to the American Arbitration Association in accordance
with the then current rules of said Association, and the
decision of the arbitrator(s) shall be binding upon the Parties. The cost of
said arbitration shall be paid equally by Lessor and Lessee. (Also see Paragraph
4.) Monthly Base Rent during any option period exercised by Lessee following the
Original Term shall be determined pursuant to the terms of any Option to Extend
this Lease, which Option(s) to Extend are attached to this lease as
attachment(s) hereto.
1.5 MONTHLY PERCENTAGE RENT.
(a) MONTHLY PERCENTAGE RENT. During the Original Term (excluding the Free
Rent Period discussed below) and any option period exercised by Lessee, Lessee
shall pay to Lessor on the first day of each calendar month as additional rent
under this Lease a Monthly Percentage Rent in an amount equal to seven and
one-half percent (7 2 %) of Monthly Gross Sales (as defined in this Paragraph
1.5) of Lessee in excess of $250,000.00 from the business operated from the
Premises ("Monthly Percentage Rent").
(b) GROSS SALES DEFINED. For purposes of this Lease, the term "Monthly Gross
Sales" shall mean the total selling price of all merchandise, products or
services sold or rendered in, on, or from the Premises by Lessee, its
Sublessees, licensees, or concessionaires, whether for cash or on credit and if
on credit whether or not paid, but
excluding sales taxes and credit card commissions payable upon such sales, and
shall include, without limitation:
(i) Proceeds from all automatic vending, weighing, and other machines
owned and operated by Lessee in or on the Premises;
(ii) Commissions received by Lessee from any automatic vending, weighing,
and other machines not owned by Lessee but operated in or on the Premises;
(iii) Commissions received by Lessee from the operation of public
telephones in or on the Premises; and
(iv) Proceeds from sales based on orders solicited or taken from, in, or
on the Premises for merchandise, products or services to be delivered or
rendered off, or from sources outside, the Premises, including but not limited
to catering proceeds.
(c) BOOKS AND RECORDS. Lessee shall at all times keep or cause to be kept on
the Premises complete and accurate records and books of account showing the
total amount of Monthly Gross Sales made
in, on, or from the Premises. Lessee covenants that it shall cause to be
installed accurate cash registers, which shall show and record each and every
sale made on and within the Premises and which also shall show the
total of all daily sales. Lessee agrees to maintain on the Premises for a period
of one year following the close
of each calendar month all records and books of account and all cash register
tapes showing or in any way pertaining to the Monthly Gross Sales made in, on,
or from the Premises during that calendar month.
(d) STATEMENT OF GROSS SALES. Lessee agrees to submit the following to Lessor:
monthly statements of Monthly Gross Sales received from the business operated on
the Premises, due within 15 days following the last day of each successive
calendar month of the lease term (or of any option renewal term of the Lease
following the conclusion of the Free Rent Period; a statement of yearly gross
sales, due within 60 days immediately
following the end of the first and each succeeding full year of the term of the
Lease; and a statement of Monthly Gross Sales made since the last monthly
statement, due within 30 days following the expiration or earlier termination of
the Lease. The first yearly statement shall include gross sales for the first 12
whole months and any partial months immediately following the Free Rent Period
of this Lease. All such statements shall be signed by a responsible and
authorized financial officer of Lessee certifying the amount of Monthly Gross
Sales (as defined in the Lease ) defined for the period to be accounted for. If
by any such monthly or yearly statement it appears that any Monthly Percentage
Rent is due and payable to Lessor for the preceding monthly or yearly period,
such Monthly Percentage Rent shall be paid to Lessor on the next first day of a
calendar month following the date said monthly or yearly statement is rendered.
All Monthly Base Rent and Monthly Percentage Rent shall be paid to Lessor
without deduction or offset.
(e) AUDIT. Lessor may at any time within one year after receiving a statement
from Lessee, at Lessor's own cost and expense, cause all books, records, and
cash register tapes described in Paragraph 1.58 of this Lease for the calendar
month purportedly covered by the statement to be audited by a public accountant
selected by Lessor. On receiving written notice of Lessor's election for such an
audit, Lessee shall deliver and make available all such books, records, and cash
register tapes to the public or certified public accountant selected by Lessor.
Upon conclusion of such audit, Lessee shall be responsible for payment to Lessor
within 30 days of any Monthly Percentage Rent for the time period reflected by
the questioned statement which remains unpaid to Lessor at the conclusion of the
audit. Furthermore, Lessee shall promptly on demand reimburse Lessor for the
fill cost and expense of the audit if the audit discloses that the questioned
statement understated Monthly Gross Sales or the Monthly Percentage Rent payable
because of Monthly Gross Sales by three percent (3%) or more.
1.5-1. ANNUAL ADDITIONAL RENT. In addition to rental obligations stated in
paragraph 1.4 and 1.5 of the herein lease and during the Original Term as stated
in paragraph 1.3 and any and all Option Periods Lessee undertakes and Lessor
approves, including but not limited to the Option period term stated in
paragraph 1.3 of the herein lease, Lessee shall pay to Lessor an amount of
$10,000.00 every year or fraction thereof, in the form of unrestricted credit
towards any purchases of food, beverage, or other services at Lessee's
restaurant facilities and Lessee's catering facilities.
1.6 LESSEE'S SHARE OF COMMON AREA OPERATING EXPENSES. During the
Original Term and any option period exercised by Lessee, Lessee shall pay to
Lessor as additional rent Sixty -Three percent (63%) of the Common Area
Operating Expenses ("Lessee's Share") in accordance with Paragraph 4.2. Lessee's
Share shall be that percentage of the Common Area Operating Expenses as is
directly proportionate to the square footage of the Premises as compared to the
total square footage of the Building.
1.7 FREE RENT PERIOD. Provided that Lessee is not is default of any
obligations under this Lease, and provided that Lessee keeps current with
Lessee's Share of Common Area Operating Expenses and applicable taxes,
utilities, insurance, and all other financial obligations of Lessee called for
under this Lease, Lessor will provide $90,000.00 (Ninety Thousand Dollars) of
"Free Rent" which must be applied in five in equal installments of $18,000.00
(Eighteen Thousand Dollars) each towards the first, second, thirteenth,
twenty-fifth, and thirty-seventh months of the herein Lease.
1.8 SECURITY DEPOSIT AND ADVANCE PAYMENT OF RENT. The Security Deposit
shall be Thirty Thousand Dollars ($30,000.00) ("Security Deposit"). (Also see
Paragraph 5). The Advance Rent shall be Eighteen Thousand Dollars ($18,000.00),
which will be credited towards
Lessee's first-month rental obligation. Five years from commencement of the
Original Term, Lessor shall refund any and all remaining portions of said
Security Deposit.
1.9 PERMITTED USE: Lessee shall use the Premises only for the operation
of a first-class restaurant and catering business ("Permitted Use"). (Also see
Paragraph 6.)
1.10 GUARANTOR. The obligations of the Lessee under this Lease are also
to be personally guaranteed for a period of five (5) years by means of Guaranty
of Lease attached hereto as Exhibit ________ by Xxxxx Xxxxxx or another natural
person acceptable to Lessor ("Guarantor") as pertaining to all of Lessee's
duties and obligations set forth in the herein Lease or as allowed under law, up
to and including, but not in excess of, the sum of Two Hundred Thousand Dollars
($200,000.00). (Also see Paragraph 37 and Exhibit _________ hereto.)
{NOTE: Paragraph 1.10 and 1.11 were illegible.}
1.11 ADDENDA AND EXHIBITS. Attached hereto is an Addendum or Addenda
consisting of Paragraphs___ through___, and Exhibits Athrough B, all of which
constitute a part of this Lease.
2. PREMISES, PARKING AND COMMON AREAS.
2.1 LETTING. Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, the Premises, for the term, at the rental, and upon all of the
terms, covenants and conditions set forth in this Lease. Unless otherwise
provided herein, any statement of square footage set forth in this Lease, or
that may have been used in calculating rental and/or Common Area Operating
Expenses, is an approximation which Lessor and Lessee agree is reasonable and
the rental and Lessee's Share (as defined in Paragraph 1.6) based thereon is not
subject to revision whether or not the actual square footage is more or less.
2.2 ACCEPTANCE OF PREMISES. Lessee hereby acknowledges: (a) that it has
been advised by the Lessor to satisfy itself with respect to the condition of
the Premises (including but not limited to the electrical and fire sprinkler
systems, security, environmental aspects, seismic and earthquake requirements,
and compliance with the Americans with Disabilities Act and applicable zoning,
municipal, county, state and federal laws, ordinances and regulations and any
covenants or restrictions of record (collectively, "Applicable Laws") and the
present and future suitability of the Premises for Lessee's intended use; (b)
that Lessee has made such investigation as it deems necessary reference to such
matters, is satisfied with reference thereto, and assumes all responsibility
therefore as the same relate 'to Lessee's occupancy of the Premises and/or the
terms of this Lease; and (c) that neither Lessor, nor any of Lessor's agents,
has made any oral or written representations or warranties with respect to said
matters other than as set forth in this Lease. Lessee has had full opportunity
to inspect the condition of the Premises, and has fully inspected the condition
of the Premises. Lessee hereby acknowledges and agrees that Lessee is leasing
the Premises "AS IS, WHERE IS, WITH ALL FAULTS, WHETHER KNOWN OR UNKNOWN,"and
that Lessor has not and is not making representations or warranties of any kind,
nature or description with respect to the Premises, the Building, the Common
Areas, or any other aspect of this transaction.
2.3 VEHICLE PARKING. Lessee shall be entitled to use the parking
allotment specified in Paragraph 1.2(b) on those portions of the Common Areas
designated from time to time by Lessor for parking. Lessee shall not use more
parking spaces than said number allotted. Said parking spaces shall be used for
parking by vehicles no larger than full size passenger automobiles or pick -up
trucks, herein called "Permitted Size Vehicles." Vehicles other than Permitted
Size
Vehicles shall be parked and loaded or unloaded as directed by Lessor in the
Rules and Regulations (as defined in Paragraph 40) issued by Lessor. (Also see
Paragraph 2.6.)
(a) Lessee shall not permit or allow any vehicles that belong to or are
controlled by Lessee or Lessee's employees, suppliers, shippers, customers,
contractors or invitees to be loaded, unloaded, or parked in areas other than
those designated by Lessor for such activities.
(b) If Lessee permits or allows any of the prohibited activities described
in this Paragraph 2.3, then Lessor shall have the right, without notice, in
addition to such other rights and remedies that it may have, to remove or tow
away the vehicle involved and charge the cost to Lessee, which cost shall be
immediately payable upon demand by Lessor.
2.4 COMMON AREAS - DEFINITION. The term "Common Areas" is defined as all
areas and facilities outside the Premises and within the exterior boundary line
of the Project and interior utility raceways within the Premises that are
provided and designated by the Lessor from time to time for the general
non-exclusive use of Lessor, Lessee and other lessees of the Project and their
respective employees, suppliers, shippers, customers, contractors and invitees,
including parking areas, loading and unloading areas, trash areas, roadways,
sidewalks, walkways, parkways, driveways and landscaped areas.
2.5 COMMON AREAS - LESSEE'S RIGHTS. Lessor hereby grants to Lessee, for
the benefit of Lessee and its employees, suppliers, shippers, contractors,
customers and invitees, during the term of this Lease, the non-exclusive right
to use, in common with others entitled to such use, the Common Areas as they
exist from time to time, subject to any rights, powers, and privileges reserved
by Lessor under the terms hereof or under the terms of any Rules and Regulations
or restrictions governing the use of the Project, and subject to Lessor's rights
to make changes to the Common Areas (including but not limited to such rights as
are described in Paragraph 2.7 of
this Lease). Under no circumstances shall the right herein granted to use the
Common Areas be deemed to include the right to store any property, temporarily
or permanently, in the Common Areas. Any such storage shall be permitted only by
the prior written consent of Lessor or Lessor's designated agent, which consent
may be revoked at any time. In the event that any unauthorized storage shall
occur then Lessor shall have the right, without notice, in addition to such
other rights and remedies that it may have, to remove the property and charge
the cost to Lessee, which cost shall be immediately payable upon demand by
Lessor. Lessee shall not obstruct, or use fort storage, or for any purpose other
than ingress and egress, the sidewalks, entrances, passages, courts, corridors,
vestibules, halls, elevators or stairways of the Building.
2.6 COMMON AREAS - RATES AND REGULATIONS. Lessor or such other person(s) as
Lessor may appoint shall have the exclusive control and management of the Common
Areas and shall have the right, from time to time, to establish, modify, amend
and enforce reasonable Rules and Regulations with respect thereto in accordance
with Paragraph 40. Lessee agrees to abide by and conform to all such Rules and
Regulations, and to cause its employees, suppliers, shippers, customers,
contractors and invitees to so abide and conform. 'Lessor shall not be
responsible to Lessee for the non-compliance with said rules and regulations by
other lessees of the Project. However, Lessor shall exercise diligent efforts to
obtain compliance with said Rules and Regulations by other tenants of the
Project.
2.7 COMMON AREAS - CHANGES. Lessor shall have the right, in Lessor's
sole discretion, from time to time:
(a) To make changes to the Common Areas, including, without limitation,
changes in the location, size, shape and number of driveways, entrances, parking
spaces, parking areas, loading and unloading areas, ingress, egress, direction
of traffic, landscaped areas, walkways and utility raceways, but only so long as
such changes do not, individually or collectively, interfere with access to the
Premises, and so long as Lessor has obtained Lessee's prior written consent (not
to be unreasonably withheld or delayed) to any changes to the exterior of the
Premises;
(b) To close temporarily any of the Common Areas for maintenance purposes
so long as reasonable access to the Premises remains available;
(c) To add additional buildings and improvements to the Common Areas;
(d) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Project, or any portion thereof; and
(e) To do and perform such other acts and make such other changes in, to or
with respect to the Common Areas and Project as Lessor may, in the exercise of
sound business judgment, deem to be appropriate, but only so long as such acts
or changes do not unreasonably interfere with and are not otherwise unreasonably
inconsistent with Lessee's Permitted Use of the Premises.
3. TERM.
3.1 TERM. The Commencement Date, Expiration Date and Original Term of
this Lease are as specified in Paragraph 1.3.
4. RENT.
4.1 PAYMENT. Lessee shall pay Monthly Base Rent and other rent or
charges, as the same may be adjusted from time to time as provided in this
Lease, to Lessor in lawful money of the United States, without offset or
deduction on or before the day on which it is due under the terms of this Lease.
Monthly Base Rent and all other rent and charges for any period during the term
hereof which is for less than one full month shall be prorated based upon the
actual number of days of the month involved. Payment of Monthly base Rent and
all other rent and charges shall be made to Lessor at its address stated herein
or to such other persons or at such other addresses as Lessor may from time to
time designate in writing to Lessee.
4.2 COMMON AREA OPERATING EXPENSES. Lessee shall pay to Lessor during the
term hereof in addition to the Monthly Base Rent and all other rental payments
and charges called for under this Lease, Lessee's Share (as specified in
Paragraph 1.6) of all Common Area Operating Expenses, as hereinafter defined,
during each calendar year of the term of this Lease, in accordance with the
following provisions:
(a) "Common Area Operating Expenses" are defined, for purposes of this
Lease, as all costs incurred bar Lessor relating to the ownership and operation
of the Project, including, but not limited to, the following:
(i) To the extent not paid from the reserves described in Paragraph 4.2 (a) (iv)
below,
the costs associated with the operation, repair and maintenance, in neat, clean,
good order and condition, of the following:
(aa) The Common Areas including parking areas, loading and unloading areas,
trash areas, roadways, sidewalks, walkways, parkways, driveways, landscaped
areas, striping, bumpers, irrigation systems, Common Area lighting facilities,
fences and gates, elevators and roof.
(bb) Exterior signs and any tenant directories.
(cc) Fire detection and sprinkler systems.
(ii) The cost of water, gas, electricity and telephone to service the
Common Areas.
(iii) Trash disposal, property management and security services and the costs of
any
environmental inspections, in accordance with market rates for such
services.
(iv) Reasonable reserves set aside for maintenance and repair of Common
Areas.
(v) Real Property Taxes (as defined in Paragraph 10.2) to be paid by Lessor for
the
Building and the Common Areas under Paragraph 10 hereof.
(vi) The cost of the premiums for the insurance policies maintained by Lessor
under Paragraph 8 hereof.
(vii) Any deductible portion of an insured loss concerning the Building or the
Common
Areas.
(viii) Any other services to be provided by Lessor that are stated
elsewhere in this Lease
to be a Common Area Operating Expense.
(b) Any Common Area Operating Expenses and Real Property Taxes that are
specifically attributable to the Building or to any other building in the
Project or to the operation, repair and maintenance thereof, shall be allocated
entirely to the Building or to such other building. However, any Common Area
Operating Expenses and Real Property Taxes that are not specifically
attributable to the Building or to any other building or to the operation,
repair and maintenance thereof, shall be equitably allocated by Lessor to all
buildings in the Project.
(c) The inclusion of the improvements, facilities and services set forth
in Subparagraph 4.2(a) shall not be deemed to impose an obligation unless the
Project already has the same, Lessor already provides the or to provide the
services, or Lessor has agreed elsewhere in this Lease to provide the same or
some of them.
(d) Lessee's Share of Common Area Expenses shall be payable by Lessee
within ten (10) days after a reasonably detailed statement of actual expenses
is presented to Lessee by Lessor. At Lessor's option, however, an amount may be
estimated by Lessor from time to time of Lessee's Share of annual Common Area
Operating
Expenses and the same shall be payable monthly or quarterly, as Lessor shall
designate, during each 12-month period of the Lease term, on the same day as the
Base Rent is due hereunder. Lessor shall deliver to Lessee within sixty (60)
days after the expiration of each calendar year a reasonably detailed statement
showing Lessee's Share of the actual Common Area Operating Expenses incurred
during the preceding year. If Lessee's payments under this Paragraph 4.2(d)
during said preceding year exceed Lessee's Share as indicated on said statement,
Lessee shall be credited the amount of such overpayment against Lessee's Share
of Common Area Operating Expenses next becoming due. If Lessee's payments under
this Paragraph 4.2(d) during said preceding year were less than Lessee's Share
as indicated on said statement, Lessee shall pay to Lessor the amount of the
deficiency within ten (10) days after delivery by Lessor to Lessee of said
statement.
(e) Common Area Operating Expenses shall not include legal fees incurred by
Lessor for any purpose whatsoever.
(f) If any reserves described in Paragraph 4.2 (a)(iv) above remain unused
at the end of the Original Term of this Lease and any renewal term of this
Lease, and as long as Lessee is not in default of this Lease at the end of the
Original Term and any renewal term of this Lease, Lessor shall refund to Lessee
within thirty (30) days following the end of the term of this Lease or renewal
term thereof, whichever is later, an amount equal to Sixty Three percent (63%)
of the balance remaining in such reserves as of the end of the Original Term or
any renewal term of this Lease, whichever is later.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon Lessee's
execution hereof the Security Deposit set forth in Paragraph 1.8 as security for
Lessee's faithful performance of Lessee's obligations under each and every term,
provision, covenant and condition of this Lease. If Lessee fails to pay Base
Rent or other rent or charges due hereunder, or otherwise Defaults under this
Lease (as defined in Paragraph 13.1), Lessor may use, apply or retain all or any
portion of said Security Deposit for the payment of any amount due Lessor or to
reimburse or compensate Lessor for any liability, cost, expense, loss or damage
(including attorneys' fees) which Lessor may suffer or incur by reason thereof.
If Lessor uses or applies all or any portion of said Security Deposit, Lessee
shall within ten (10) days after written request therefore deposit monies with
Lessor sufficient to restore said Security Deposit to the full amount required
by this Lease. Lessor shall not be required to keep all or any part of the
Security Deposit separate from its general accounts. Lessor shall, at the
expiration or earlier termination of the term hereof and after Lessee has
vacated the Premises, return to Lessee (or, at Lessor's option, to the last
assignee, if any, of Lessee's interest herein), that portion of the Security
Deposit not used or applied by Lessor. Unless otherwise expressly agreed in
writing by Lessor, no part of the Security Deposit shall be considered to be
held in trust, to bear interest or other increment for its use, or to be
prepayment for any monies to be paid by Lessee under this Lease.
6. USE.
6.1 PERMITTED USE.
(a) Lessee shall use and occupy the Premises only for the Permitted Use set
forth in Paragraph 1.9, or any other legal use which is reasonably comparable
thereto, and for no other purpose. Lessee shall not use or permit the use of the
Premises in a manner that is unlawful, creates waste or a nuisance, or that
disturbs owners and/or occupants of, or causes damage to the Premises or
neighboring premises or properties. No noise, odor or litter, whether caused by
Lessee, Lessee's customers, clients, invitees or guests, which is objectionable
to Lessor or other occupants of the Building, shall emanate from the
Premises. Lessee shall not: (1) create or maintain a nuisance on the premises,
(2) disturb, solicit or canvass any occupant of the building, or (3) do any act
of tending to inure the reputation of the Building or of Lessor.
(b) Lessee covenants and agrees that it shall operate and conduct within
the Premises, continuously and uninterruptedly during the entire Lease term, the
Permitted Use, excepting legal holidays, and except while the Premises are
untenantable by reason of fire of other unavoidable casualty, and that it shall
at all times keep and maintain within and upon the Premises an adequate stock of
merchandise and trade fixtures and have sufficient personnel to service and
supply the demands and requirements of its customers. If Lessee shall fail to
continuously and uninterruptedly operate the Premises for the Permitted Use
under the terms of this Lease at any time during the Lease Term as required
herein, Lessor shall, in addition to Lessor's other rights and remedies, be
entitled to either terminate the Lease or require Lessee to pay to Lessor, in
addition to Base Rent, on the first day of the calendar month following said
failure to remain in continuous operation, an additional amount equal to 1/30th
of the then monthly Base Rent for each day that Lessee fails to continuously and
uninterruptedly operate its business in the Premises as required herein.
(c) Lessee agrees that it shall keep the Premises in a neat, clean and
orderly condition and that all trash and rubbish generated by it shall be
deposited at least once a day within prescribed receptacles in designated
service areas within the building. Lessee further agrees to cause such
receptacles to be emptied and trash removed at its own cost and expense so as,
on its part, to keep such service areas in a clean and orderly condition.
(d) Lessor hereby agrees to not unreasonably withhold or delay its consent
to any written request by Lessee, Lessee's assignees or subtenants, and .by
prospective assignees and subtenants of Lessee, its assignees and subtenants,
for a modification of said Permitted Use, so long as the same will not impair
the structural integrity of the improvements on the Premises or in the Building
or the mechanical or electrical systems therein, does not conflict with uses by
other lessees, is not significantly more burdensome to the Premises or the
Building and the improvements thereon, and is otherwise permissible pursuant to
this Paragraph 6. If Lessor elects to withhold such consent, Lessor shall within
five (5) business days after such request give a written notification of same,
which notice shall include an explanation of Lessor's reasonable objections to
the change in use
(e) Lessor shall not lease any other portion of the Building to any tenant
for the operation of a restaurant and/or catering business, or for the operation
of any other business activity that would unreasonably interfere or be
unreasonably inconsistent with the operation of the Premises as a first-class
restaurant and catering business. Operation of other premises in the Building
for general office use shall not be deemed to violate the provisions of this
Paragraph 6(e) .
(f) Lessee assumes full responsibility for. (1) protecting the Premises
from theft, robbery and pilferage, (2) keeping the Premises secure, and (3)
locking the doors in and to the Premises. Any damages from Lessee's negligent
failure to so protect, secure, and/or lock the Premises shall-be paid for by
Lessee. All property belonging to Lessee, or to any other person, within the
Building or the Premises, shall be there at the risk of
Lessee or such other person, and Lessor and its agents and employees shall not
be liable for damage thereto or theft or misappropriation thereof Lessee hereby
indemnifies and holds Lessor and its agents and employees harmless from say
claims arising out of the above, including subrogation claims by Lessee's
insurance carrier.
(g) During the Original Term and any extension thereof pursuant to exercise by
Lessee of any option to extend this Lease, Lessee shall have the right to use
any or all of the furnishings, fixtures and equipment in existence on the
Premises as of the date of execution of this Lease, and shall further be
entitled to use up any existing supplies located on the Premises as of the date
of execution of this Lease, in the ordinary course of business; provided,
however, that Lessee shall not be permitted to commit unreasonable waste of said
furnishings, fixtures, equipment, and supplies. In the event that Lessee shall
desire to dispose of any or all of the existing furnishings, fixtures,
equipment, or supplies located on the Premises as of the date of .execution of
this Lease, Lessee shall first offer to Lessor in writing the right to take
possession of the same. If Lessor elects to take possession, Lessor shall be
responsible for any cost of removing said furnishings, fixtures, equipment
and/or supplies as Lessor elects to take possession of from the Premises. If,
however, Lessor declines to take possession of said furnishings, fixtures,
equipment or supplies, removal of the same from the Premises shall be at the
sole cost of Lessee. Furthermore, any acceptance by Lessor of possession of any
such furniture, fixtures, equipment, and/or supplies which Lessee desires to
dispose of shall not entitle Lessee to any credit or offset against rent or
other financial obligations to Lessor or any other person under this Lease, nor
relieve Lessee from the obligation to fully perform each and every term,
covenant, condition, provision, and promise of Lessee set forth in this Lease
or any attachment hereto.
6.2 HAZARDOUS SUBSTANCES.
(a) REPORTABLE USES REQUIRE CONSENT. The term "Hazardous Substance" as
used in this Lease shall mean any product, substance, chemical, material or
waste whose presence, nature, quantity and/or intensity of existence, use,
manufacture, disposal, transportation, spill, release or effect, either by
itself or in combination with other materials expected to be on the Premises, is
either: (i) potentially injurious to the public health, safety or welfare, the
environment, or the Premises; (ii) regulated or monitored by any governmental
authority; or (iii) a basis for potential liability of Lessor to any
governmental agency or third party under any applicable statute or common law
theory. Hazardous Substance shall include, but not be limited to, hydrocarbons,
petroleum, gasoline, crude oil or any products or by-products thereof. Lessee
shall not engage in any activity in or about the Premises which constitutes a
Reportable Use (as hereinafter defined) of Hazardous Substances without the
express prior written consent of Lessor and compliance in a timely manner (at
Lessee's sole cost and expense) with all Applicable Requirements (as defined m
Paragraph 6.3). "Reportable Use" shall mean (i) the installation or use of any
above or below ground storage tank, (ii) the generation, possession, storage,
use, transportation, or disposal of a Hazardous Substance that requires a
permit from, or with respect to which a report, notice, registration or business
plan is required to be fled with, any governmental authority, and (iii) the
presence in, on or about the Premises of a Hazardous Substance with respect to
which any Applicable Laws require that a notice be given to persons entering or
occupying the Premises or neighboring properties. Notwithstanding the foregoing,
Lessee may, without Lessor's prior consent, but upon notice to Lessor and in
compliance with all Applicable Requirements, use any ordinary and customary
materials reasonably required to be used by Lessee in the normal course of the
Permitted Use, so long as such use is not a Reportable Use and does not expose
the Premises or neighboring properties to any meaningful risk of contamination
or damage or expose Lessor to any pity therefor. In addition, Lessor may (but
without any obligation to do so) condition its consent to any
Reportable Use of any Hazardous Substance by Lessee upon Lessee's giving Lessor
such additional assurances as Lessor, in its reasonable discretion, deems
necessary to protect itself, the public, the Premises and the environment
against damage, contamination or injury and/or liability therefor, including but
not limited to the installation (and, at Lessor's option; removal on or before
Lease expiration or earlier termination) of reasonably necessary protective
modifications to the Premises (such as concrete encasements) and/or the deposit
of an additional Security Deposit under Paragraph 5 hereof.
(b) DUTY TO INFORM LESSOR. If Lessee knows, or has reasonable cause to
believe, that a Hazardous Substance has come to be located in, on, under or
about the Premises or the Building, other than as previously consented to by
Lessor, Lessee shall immediately give Lessor written notice thereof, together
with a copy of any statement, report, notice, registration, application, permit,
business plan, license, claim, action, inquiry or proceeding given to, or
received from, any governmental authority (including but not limited to the
California State Department of Health Services, the State or any Regional Water
Quality Control Board, the Air Quality Management District or any local
government entity) or private party concerning the presence, spill, release,
discharge of, or exposure to, such Hazardous Substance including but not limited
to all such documents as may be involved in any Reportable Use involving the
Premises. Lessee shall not cause or permit any Hazardous Substance to be spilled
or released in, on, under or about the Premises (including, without limitation,
through the plumbing or sanitary sewer system).
(c) INDEMNIFICATION. Lessee shall indemnify, protect, defend and hold
Lessor, its agents, employees, lenders and ground lessor, if any, and the
Premises, harmless from and against any and all damages, liabilities, judgments,
costs, claims, liens, expenses, penalties, loss of permits and attorneys' and
consultants' fees arising out of or involving any Hazardous Substance brought
onto the Premises by or for Lessee or by anyone under Lessee's control. Lessee's
obligations under this Paragraph 6.28 shall include, but not be limited to, the
effects of any contamination or injury to person, property or the environment
created or suffered by Lessee, and the cost of investigation (including
consultants' and attorneys' fees and testing), removal, redemption, restoration
and/or abatement thereof, or of any contamination therein involved, and shall
survive the expiration or earlier termination of this Lease. No termination,
cancellation or release agreement entered into by Lessor and Lessee shall
release Lessee from its obligations under this Lease with respect to Hazardous
Substances, unless specifically so agreed by Lessor in writing at the time of
such agreement.
6.3 LESSEE'S COMPLIANCE WITH REQUIREMENTS. Lessee shall, at Lessee's sole
cost and expense, fully, diligently and in a timely manner, comply with all
"Applicable Requirements" which term is used in this Lease to mean all laws,
rules, regulations, ordinances, directives, covenants, easements and
restrictions of record, permits, a requirements of any applicable fire insurance
underwriter or rating bureau, and the recommendations of Lessor's engineers
and/or consultants, relating in manner to the Premises (including but not
limited to matters pertaining to ( i) industrial hygiene, (ii) environmental
conditions on, in, under or about the Premises, including soil and groundwater
conditions, and (iii) the use, generation, manufacture, production,
installation, maintenance, removal, transportation, storage, spill, or release
of any Hazardous Substance), now in effect or which may hereafter come into
effect. Lessee shall, within five (5) days after receipt of Lessor's written
request, provide Lessor with copies of all documents and information, including
but not limited to permits, registrations, manifests, applications, reports and
certificates, evidencing Lessee's compliance with any Applicable Requirements
specified by
Lessor, and shall immediately upon receipt, notify Lessor in writing (with
copies of any documents involved) of any threatened or actual claim, notice,
citation, warning, complaint or report pertaining to or involving failure by
Lessee or the Premises to comply with any Applicable Requirements.
6.4 INSPECTION - COMPLIANCE WITH LAW. Lessor, Lessor's agents, employees,
contractors and designated representatives, and the holders of any mortgages,
deeds of trust or ground leases on the Premises ("Lenders") shall have the right
to enter the Premises at any time in the case of an emergency, and otherwise at
reasonable times, upon prior written notice to Lessee, for the purpose of
inspecting the condition of the Premises and for verifying compliance by Lessee
with this Lease and all Applicable Requirements (as defined in Paragraph 6.3),
and Lessor shall be entitled to employ experts and/or consultants in connection
therewith to advise Lessor with respect to Lessee's activities, including but
not limited to Lessee's installation, operation, use, monitoring, maintenance,
or removal of any Hazardous Substance on or from the Premises. The costs and
expenses of any such inspections shall be paid by the party requesting same,
unless a Default or Breach of this Lease by Lessee or a violation of Applicable
Requirements or a contamination, caused or materially contributed to by Lessee,
is found to exist or to be imminent, or unless the inspection is requested or
ordered by a governmental authority
as the result of any such existing or imminent violation or contamination. In
such case, Lessee shall upon request reimburse Lessor or Lessor's Lender, as the
case may be, for the costs and expenses of such inspections. Notwithstanding any
language to the contrary in the foregoing, except in the case of a bona fide
emergency, Lessor shall have no right to enter the Premises for any purpose
whatsoever during the hours of 11:00 a.m. to 3:00 p.m. and the hours of 6:00
p.m. to 11:00 p.m.
7. MAINTENANCE, REPAIRS, UTILITY INSTALLATIONS, TRADE FIXTURES AND ALTERATIONS.
7.1. LESSEE'S OBLIGATIONS.
(a) Subject to the provisions of Paragraphs 7.2 (Lessor's Obligations), 9
(Damage or Destruction), and 14 (Condemnation), Lessee shall, at Lessee's sole
cost and expense and at all times, keep the Premises and every part thereof in
good order, condition and repair (whether or not such portion of the Premises
requiring repair, or the means of repairing the same, are .reasonably or readily
accessible to Lessee, and whether or not the need for such repairs occurs as a
result of Lessee's use, any prior use, the elements or the age of such portion
of the Premises), including, without limiting the generality of the foregoing,
all equipment or facilities specifically serving the Premises, such as plumbing,
heating, air condoning, ventilating, electrical, lighting facilities, boilers,
HVAC system, fired or unfired pressure vessels, fire hose connections if within
the Premises, fixtures, interior walls, interior suffices of exterior walls,
ceilings, floors, windows, doors, plate glass, and skylights, but excluding any
items which are the responsibility of Lessor pursuant to Paragraph 7.2 below.
Lessee, in keeping the Premises in good order, condition and repair, shall
exercise and perform good maintenance practices. Lessee's obligations shall
include restorations, replacements or renewals when necessary to keep the
Premises and all improvements thereon or a part thereof in good order, condition
and state of repair.
(b) Lessee shall, at Lessee's sole cost and expense, procure and maintain a
contract, with copies to Lessor, in customary form and substance for and with a
contractor specializing and experienced m the inspection, maintenance and
service of the heating, air conditioning and ventilation system for the
Premises.
(c) If Lessee fails to perform Lessee's obligations under this
Paragraph 7.1, Lessor may enter upon the Premises after ten (10) days' prior
written notice to Lessee (except in the case of an emergency, in which case no
notice shall be required), perform such obligations on Lessee's behalf; and put
the Premises in good order, condition and repair, in accordance with Paragraph
13.2 below.
(d) In the event the elevator for the building shall become inoperable, and
Lessor shall fail to initiate efforts to repair the same after receipt of two
written 24-hour notices to repair the elevator from Lessee, Lessee shall have
the right, exercisable at Lessee's option, of procuring the services of a
contractor specializing and experienced in the inspection, maintenance and
service of elevators to effect repairs upon said elevator, whose services shall
be billable directly to Lessor. Notwithstanding the foregoing, Lessee shall have
no right to deduct or offset the cost of such repair from any rental payment or
any other sums which Lessee shall be responsible to pay to Lessor under the
terms of this Lease.
7.2 LESSOR'S OBLIGATIONS. Subject to the provisions of 4.2 (Common Area
Operating Expenses), 6 (Use), 7.1 (Lessee's Obligations), 9 (Damage or
Destruction) and 14 (Condemnation), Lessor, subject to reimbursement pursuant to
Paragraph 4.2, shall keep in good order, condition and repair the foundations,
exterior walls, structural condition of interior bearing walls, exterior roof;
fire sprinkler and/or standpipe and hose ('if located in the Common Areas) or
other automatic fire extinguishing system including fire alarm and/or smoke
detection systems and equipment, fire hydrants, parking lots, walkways,
parkways, driveways, landscaping, fences, signs and utility systems serving the
Common Areas and all parts thereof, as well as providing the services for which
there is a Common Area Operating Expense pursuant to Paragraph 4.2. Lessor shall
further be responsible for keeping in good order, condition and repair any
mechanical systems servicing the Building as a whole and not merely the
Premises, the expenses of such upkeep and repair to be treated as a Common Area
Operating Expense pursuant to Paragraph 4.2 of this Lease. Lessor shall further
be responsible to deliver to the Premises as soon as reasonably possible
following the commencement of Lessee's occupancy of the Premises under this
Lease a working and functional HVAC system; however, following such delivery,
Lessor shall have no responsibility whatsoever for the repair, upkeep,
maintenance or replacement of said HVAC system or any component part thereof,
and all such repair, upkeep, maintenance and repair shall be the sole
responsibility of Lessee and at Lessee's sole cost and expense under Paragraph
7.1 of this Lease. Lessor shall not be obligated to paint the exterior or
interior surfaces of exterior walls nor shall Lessor be obligated to maintain,
repair or replace windows, doors or plate glass of the Premises. Lessee
expressly waives the benefit 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 Building,
Project or Common Areas in good order,
condition and repair.
7.3 UTILITY INSTALLATIONS, TRADE FIXTURES, ALTERATIONS.
(a) DEFINITIONS; CONSENT REQUIRED. The term "Utility Installations" is
used in this Lease to refer to all air, lines, power panels, electrical
distribution, security, fire protection systems, communications systems,
lighting fixtures, heating, ventilating and air conditioning equipment,
plumbing, and fencing in, on or about the Premises. The term "Alterations" shall
mean any modification of the improvements on the Premises, other than Utility
Installations or Trade Fixtures. Lessee shall not make nor cause to be made any
Alterations or Utility Installations in, on, under or about the Premises without
Lessor's prior written consent.
(b) CONSENT. Any Alterations or utility Installations that Lessee shall
desire to make and which require the consent of the Lessor shall be presented to
Lessor in written form with detailed plans. All consents given by Lessor,
whether by virtue of Paragraph 7.3(a) or by subsequent specific consent, shall
be deemed conditioned upon: (i) Lessee's acquiring all applicable permits
required by governmental authorities; (ii) the furnishing of copies of such
permits together with a copy of the plans and specifications for the Alteration
or Utility Installation to Lessor prior to commencement of the work thereon; and
(iii) the compliance by Lessee with all conditions of said permits in a prompt
and expeditious manner. Any Alterations or Utility Installations by Lessee
during the term of this Lease shall be done in a good and workmanlike manner,
with good and sufficient materials, and be in compliance with all Applicable
Requirements. Lessee shall promptly upon completion thereof furnish Lessor with
as-built plans and specifications therefor. Lessor may, (but without obligation
to do so) condition its consent to any requested Alteration or Utility
Installation that costs $20,000.00 or more upon Lessee's providing Lessor with a
lien and completion bond in an amount equal to one and one-half times the
estimated cost of such Alteration or Utility Installation.
(c) LIEN PROTECTION. 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 on
the Premises, which claims are or may be seared by any mechanic's 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, on, or about the Premises, and Lessor shall have the right to post
notices of non-responsibility in or on the Premises as provided
by law. If Lessee shall, in good faith, contest the validity of any such lien,
claim or demand, then Lessee shall,
at its sole expense, defend and protect itself, Lessor and the Premises against
the same and shall pay and satisfy any such adverse judgment that may be
rendered thereon before the enforcement thereof against the Lessor or the
Premises. If Lessor shall require, Lessee shall furnish to Lessor a surety bond
satisfactory to Lessor in
an amount equal to one and one-half times the amount of such contested lien
claim or demand, indemnifying Lessor against liability for the same, as required
by law for the holding of the Premises free from the effect of such lien or
claim.
(d) Upon execution of this Lease, Lessee shall make improvements to the
Premises to ready the same for its operation for the Permitted Use described
above, such improvements subject to the consent of Lessor as provided in this
Paragraph 7.3. Lessee shall expend not less than Five Hundred Thousand Dollars
($500,000.00) on such improvements, but in no event shall be required to expend
in excess of One Million Dollars ($1,000,000.00) on such improvements. Prior to
any construction to and/or alteration of Premises, Lessee will provide to Lessor
a completion bond in an amount equal to 1 2 times the estimated amount of said
construction and/ or alteration.
7.4 OWNERSHIP, REMOVAL, SURRENDER, RESTORATION, AND SECURITY INTEREST.
(a) OWNERSHIP. All Alterations and Utility installations made to the
Premises by Lessee shall be the property of and owned by Lessor, and considered
a part of the Premises. Upon expiration of the Original Term and any renewal tam
of this Lease, or upon any eerier termination of this Lease, all Trade Fixtures
installed in the Premises at any time shall be the property of and owned by
Lessor, and considered a part of the Premises.
(b) REMOVAL. Unless otherwise agreed in writing, Lessor may require that
any or all Alterations or Utility Installations be removed by the expiration or
earlier termination
of this Lease, notwithstanding that their installation may have been consented
to by Lessor. Lessor may require the removal at any time of all or any part of
any Alterations or Utility Installations made without the required consent of
Lessor.
(c) SURRENDER/RESTORATION. Lessee shall surrender the Premises by the end
of the last day of the Lease term or any earlier termination date, clean and
free of debris and in good operating order, condition and state of repair,
ordinary wear and tear excepted. Ordinary wear and tear shall not include any
damage or deterioration that would have been prevented by good maintenance
practice or by Lessee performing all of its obligations under this Lease. Except
as otherwise agreed or specified herein, the Premises, as surrendered, shall
include the Alterations, Utility Installations, and all Trade Fixtures. The
obligation of Lessee shall include the repair of any damage to the Premises,
Trade Fixtures, Alterations and Utility Installations, and the removal,
replacement or remediation of any soil, material or ground water contamination
by Lessee, all as may then be required by Applicable Requirements and/or good
practice.
(d) SECURITY AGREEMENT. Lessee hereby grants to Lessor a lien and security
interest on all property of Lessee now or hereafter placed in or upon the
Premises including, but not limited to, all fixtures, machinery, equipment,
furnishings and other articles of personal property, and all proceeds of the
sale or other disposition of such property (collectively, the "Collateral") to
secure the payment of all rent to be paid by Lessee pursuant to this lease. Such
lien and security interest shall be in addition to any landlord's lien provided
by the law. This Lease shall constitute a security agreement under the
California Commercial Code so that Lessor shall have and many enforce a security
interest in the Collateral. Lessee agrees to execute as debtor and deliver such
financing statement or statements and any further documents as Lessor may now or
hereafter reasonably request to protect such security interest pursuant to such
Code. Lessor may also at any time file a copy of this lease as financing
statement. Lessor, as secured party, shall be entitled to all rights and
remedies afforded a secured party under such Code, which rights and remedies
shall be inn addition to Lessor's liens and rights provided by law or by the
other terms and provisions of this Lease.
8. INSURANCE; INDEMNITY.
8.1 PAYMENT OF PREMIUMS. The cost of the premiums for the insurance
policies maintained by Lessor under this Paragraph 8 or which will be maintained
during the term of this Lease or any option renewal period thereof shall be a
Common Area Operating Expense pursuant to Paragraph 4.2 hereof. Premiums for
policy periods commencing prior to, or extending beyond, the term of this Lease
shall be prorated to coincide with the corresponding Commencement Date or
Expiration Date.
8.2 LIABILITY INSURANCE.
(a) CARRIED BY LESSEE. Lessee shall obtain and keep in force during the
terra of this Lease a Commercial General Liability policy of insurance
protecting Lessee, Lessor and any Lender(s) whose names have been provided to
Lessee in writing (as additional insureds) against claims for bodily injury,
personal injury and property damage based upon, involving or arising out of the
ownership, use, occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be on an occurrence basis providing
single limit coverage in an amount not less than Two Million Dollars
($2,000,000.00) per occurrence with an "Additional Insured - Managers or Lessors
of Premises" endorsement and contain the "Amendment of the Pollution Exclusion"
endorsement for damage caused by heat, smoke or fumes from fire. The policy
shall not contain any intra-insured exclusions as between insured persons or
organizations, but shall include coverage for liability assumed under this Lease
as an "insured contract" for the performance of Lessee's indemnity obligations
under this Lease (including but not limited to Paragraph 8.7 below). The limits
of said insurance required by this Lease or as carried by Lessee shall not,
however, limit the liability of Lessee nor relieve Lessee of any obligation
hereunder. All insurance to be carried by Lessee shall be primary to and not
contributory with any similar insurance carried by Lessor, whose insurance shall
be considered excess insurance only. Both Lessor and Lessee shall be named as
additional insureds, and the policies shall contain cross-liability
endorsements. Upon request from Lessor, Lessee shall provide Lessor with written
evidence that such insurance is in force. If Lessee shall fail to procure and
maintain such insurance the Lessor may, but shall not be required to, procure
and maintain same at the expense of Lessee and the cost thereof, together with
interest thereon at the rate of ten (10%) percent per annum, shall become due
and payable as additional rental to Lessor together with Lessee's next rental
installment.
(b) CARRIED BY LESSOR. Lessor shall also maintain liability insurance
described in Paragraph 8.2(a) above, in addition to and not in lieu of, the
insurance required to be maintained by Lessee. Lessee shall not be named as an
additional insured therein.
8.3 PROPERTY INSURANCE - BUILDING, IMPROVEMENTS AND RENTAL VALUE.
(a) BUILDING AND IMPROVEMENTS. Lessor has obtained or shall obtain and
keep in force during the term of this Lease a policy or policies in the name of
Lessor, with loss payable to Lessor and to any Lender(s), insuring against loss
or damage to the Building. Such insurance shall be for full replacement cost, as
the same shall exist from time to time, or the amount required by any Lender(s),
but in no event more than the commercially reasonable and available insurable
value thereof if, by reason of the unique nature or age of the improvements
involved, such latter amount is less than full replacement cost. The costs of
such insurance shall be treated as a Common Area Operating Expense under
Paragraph 4.2 of this Lease, with Lessee required to pay to Lessor Lessee's
Share thereof as defined in Paragraph 1.6 of this Lease. Alterations and Utility
Installations, Trade Fixtures and Lessee's personal property shall be insured by
Lessee pursuant to Paragraph 8.4. If the coverage is available and commercially
appropriate, Lessor's policy or policies shall insure against all risks of
direct physical loss or damage (including coverage for the perils of flood
and/or earthquake), including coverage for any additional costs resulting from
debris removal and reasonable amounts of coverage for the enforcement of any
ordinance or law regulating the reconstruction or repent of any undamaged
sections of the Building required to be demolished or removed by reason of the
enforcement of any building, zoning, safety or land use laws as the result of a
covered loss, but not including plate glass insurance. Said policy or policies
shall also contain an agreed valuation provision in lieu of any co-insurance
clause, waiver of subrogation, and inflation guard protection causing an
increase in the annual property insurance coverage amount by a factor of not
less than the adjusted US. Department of Labor Consumer Price Index for All
Urban Consumers for the city nearest to where the Premises are located.
(b) RENTAL VALUE. Lessor shall also obtain and keep in force during the
term of this Lease a policy or policies in the name of Lessor, with loss payable
to Lessor and any Lender(s), insuring the loss of the full rental and other
charges payable by all lessees of the Building to Lessor for one year (including
all Real Property Taxes, insurance costs, all Common Area Operating Expenses and
any scheduled rental increases). Said insurance
may provide that in the event the Lease is terminated by reason of an insured
loss the period of indemnity for such coverage shall be extended beyond the date
of the completion of repairs or replacement of the Premises, to provide for one
full year's loss of rental revenues from the date of any such loss. Said
insurance shall contain an agreed valuation provision in lieu of any
co-insurance clause, and the amount of coverage shall be adjusted annually to
reflect the projected rental income, Real Property Taxes, insurance premium
costs and other expenses, if any, otherwise payable, for the next 12-month
period. The costs of such insurance shall be treated as a Common Area Operating
Expense under Paragraph 4.2 of this Lease, with Lessee required to pay to Lessor
Lessee's Share thereof as defined by Paragraph 1.6 of this Lease. Common Area
Operating Expenses shall further include any deductible amount in the event of
such loss.
(c) ADJACENT PREMISES. Lessee shall pay for any increase in the premiums
for the property insurance of the Building and for the Common Areas or other
buildings in the Project if said increase is caused by Lessee's acts, omissions,
use or occupancy of the Premises.
8.4 LESSEE'S PROPERTY DAMAGE INSURANCE. Subject to the requirements of
Paragraph 8.5, Lessee at its sole cost and expense shall, either by separate
policy or, at Lessor's option, by endorsement to a policy already carried,
maintain during the term of this Lease (and any extension of the term thereof by
exercise of option) property damage insurance coverage on all personal property
in, on or about the Premises (whether that of Lessee, Lessor, or any other
person), Trade Fixtures and Alterations and Utility Installations in, on, or
about the Premises, with property damage limits of not less than One Million
Dollars ($1,000,000.00), Property damage insurance under such policy shall be
similar in scope of coverage to that carved by Lessor as the Insuring Party
under Paragraph 8.3(a), excepting that: (a) such insurance shall be full
replacement cost coverage with a deductible not to exceed $5,000 per occurrence
; and (b) such insurance shall specifically provide coverage for the perils of
flood and earthquake if commercially available and appropriate, and shall
include plate glass insurance. The proceeds from any such insurance shall be
used by Lessee for the replacement of personal property and the restoration of
Trade Fixtures and Alterations and Utility Installations. Said insurance shall
further insure performance by Lessee of the indemnity provisions in Paragraph
8.7 below, but the limits of such insurance shall not, however, limit the
liability of Lessee hereunder. Both Lessor and Lessee shall be named as
additional insureds, and the policies shall contain cross-liability
endorsements. Upon request from Lessor, Lessee shall provide Lessor with written
evidence that such insurance is in force. If Lessee shall fail to procure and
maintain such insurance the Lessor may, but shall not be required to, procure
and maintain same at the expense of Lessee and the cost thereof, together with
interest thereon at the rate often (10%) percent per annum, shall become due and
payable as additional rental to Lessor together with Lessee's next rental
installment.
8.5 INSURANCE POLICIES. Insurance required her shall be in companies duly
licensed to transact business in the state where the Premises are located, and
maintaining during the policy term a "General Policyholders Rating" of at least
B+, A, or such other rating as may be required by a Lender, as set forth in the
most current issue of "Best's Insurance Guide."
Lessee shall not do or permit to be done anything which shall invalidate
the insurance policies referred to in this Paragraph 8. Lessee shall cause to be
delivered to Lessor, within seven (7) days a after the Early Possession Date or
the Commencement Date, certified copies of, or certificates evidencing the
existence and amounts of, the insurance required under Paragraph 8.2(a) and 8.4.
No such policy shall be cancelable or subject to modification except after
thirty (30) days' prior written notice to Lessor. Lessee shall at least thirty
(30) days prior to the expiration of such policies, furnish Lessor with evidence
of renewals or "insurance binders"
evidencing renewal thereof, or Lessor may order such insurance and charge the
cost thereof to Lessee, which amount shall be payable by Lessee to Lessor upon
demand.
8.6 WAIVER OF SUBROGATION. Without affecting any other rights or
remedies, Lessee and Lessor each hereby release and relieve the other, and waive
their entire right to recover damages (whether in contract or in tort) against
the other, for loss or damage to their property arising out of or incident to
the perils required to be insured against under Paragraph 8. The effect of such
releases and waivers of the right to recover damages shall not be limited by the
amount of insurance carried or required, or by any deductibles applicable
thereto. Lessor and Lessee agree to have their respective insurance companies
issuing property damage insurance waive any right to subrogation that such
companies may have against Lessor or Lessee, as the case may be, so long as the
insurance is not invalidated thereby.
8.7 INDEMNITY. Except for situations arising proximately from or out of
Lessor's willful misconduct and/or breach of this Lease, Lessee shall indemnify,
protect, defend and hold harmless the Premises, Lessor and its agents, Lessor's
master or ground lessor, partners and Lenders, from and against any and all
claims, loss of rents and/or damages, costs, liens, judgments, penalties, loss
of permits, attorneys' and consultants' fees, expenses and/or liabilities
arising out of, involving, or in connection with, the occupancy of the Premises
by Lessee, the conduct of Lessee's business, any act, omission or neglect of
Lessee, its agents, contractors, employees or invitees, and out of any Default
or Breach by Lessee in the performance in a timely manner of any obligation on
Lessee's part to be performed under this Lease. The foregoing shall include, but
not be limited to, the defense or pursuit of any claim or any action or
proceeding involved therein, and whether or not (in the case of claims made
against Lessor) litigated and/or reduced to judgment. In case any action or
proceeding be brought against Lessor by reason of any of the foregoing matters,
Lessee upon notice from Lessor shall defend the same at Lessee's expense by
counsel reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee
in such defense. Lessor need not have first paid any such claim in order to be
so indemnified.
8.8 EXEMPTION OF LESSOR FROM LIABILITY. Except for situations arising
proximately from or out of Lessor's willful misconduct and/or breach of this
Lease, Lessor shall not be liable for injury or damage to the person or goods,
wares, merchandise or other property of Lessee, of Lessor in Lessee's Premises ,
or of Lessee's employees, contractors, invitees, customers, or any other person
in or about the Premises, whether such damage or injury is caused bar or results
from fire, steam, electricity, gas, water or rain, or from the breakage,
leakage, obstruction or other defects of pipes, fire sprinklers,, wires,
appliances, plumbing, air conditioning or lighting fixtures, or from any other
cause, whether said injury or damage results from conditions arising upon the
Premises or upon other portions of the Building of which the Premises are a
part, from other sources or places, and regardless of whether the cause of such
damage or injury or the means of repairing the same is accessible or not. Lessor
shall not be liable for any damages arising from any act or neglect of any other
lessee of Lessor nor from the failure by Lessor to enforce the provisions of any
other lease in the Project. Notwithstanding Lessor's negligence or breach of
this Lease, Lessor shall under no circumstances be liable for injury to Lessee's
business or for any loss of income or profit therefrom.
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(a) "PREMISES PARTIAL DAMAGE" shall mean damage or destruction to the
Premises, other than Trade Fixtures, Alterations and Utility Installations , the
repair cost of which damage or destruction is less than fifty percent (50%) of
the then Replacement
Cost (as defined in Paragraph 9.1(d)) of the Premises (excluding Trade Fixtures,
Alterations and Utility Installations) immediately prior to such damage or
destruction.
(b) "PREMISES TOTAL DESTRUCTION" shall mean damage or destruction to the
Premises, excluding Trade Fixtures, Alterations and Utility Installations , the
repair cost of which damage or destruction is fifty percent (50%) or more of the
then Replacement Cost of the Premises (excluding Trade Fixtures, Alterations and
Utility Installations) immediately prior to such damage or destruction. In
addition, damage or destruction to the Building (excluding Trade Fixtures,
Alterations and Utility Installations), the cost of which damage or destruction
is fifty percent (50%) or more of the then Replacement Cost of the Building
(excluding Trade Fixtures, Alterations and Utility Installations) shall, at the
option of Lessor, be deemed to be Premises Total Destruction.
(c) "INSURED LOSS" shall mean damage or destruction to the Premises (excluding
Trade Fixtures, Alterations and Utility Installations), which was caused by an
event required to be covered by the insurance described in Paragraph 8.3(a)
irrespective of any deductible amounts or coverage limits involved.
(d) "REPLACEMENT COST" shall mean the cost to repair or rebuild the
improvements owned by Lessor at the time of the occurrence to their condition
existing immediately prior thereto, including demolition, debris removal and
upgrading required by the operation of applicable building codes, ordinances or
laws, and without deduction for depreciation.
(e) "HAZARDOUS SUBSTANCE CONDITION" shall mean the occurrence or discovery
of a condition involving the presence of, or a contamination by, a Hazardous
Substance as defined in Paragraph 6.2(a), in, on, or under the Premises.
9.2 PREMISES PARTIAL DAMAGE - INSURED LOSS. If Premises Partial Damage
that is an Insured Loss occurs, then Lessor shall, at Lessor's expense, repair
such damage (but not Trade Fixtures, Alterations and Utility Installations) as
soon as reasonably possible and this Lease shall continue in full force and
effect. In the event, however, that there is a shortage of insurance proceeds
and such shortage is due to the fact that by, reason of the unique nature of the
improvements in the Premises, full replacement cost insurance coverage was not
commercially reasonable and available, Lessor shall have no obligation to pay
for the shortage in insurance
proceeds, or to fully restore the unique aspects of the premises unless Lessee
provides Lessor with the funds to cover same, or adequate assurance thereof,
within text (10) days following receipt of written notice of such shortage and
request therefor. If Lessor receives said funds or adequate assurance thereof
within said ten (10) day period, Lessor shall complete them as soon as
reasonably possible and this Lease shall remain in full force and effect. If
Lessor does not receive such funds or assurance within said period, Lessor may
nevertheless elect by written notice to Lessee within ten (10) days thereafter
to make such restoration and repair as is commercially .
reasonable with Lessor paying any shortage in proceeds, in which case this Lease
shall remain in full force and effect. If Lessor does not receive such funds or
assurance within such text (10) day period, and if Lessor does not so elect to
restore and repair, then this Lease shall terminate sixty (60) days following
the occurrence of the damage or destruction. Unless otherwise agreed, Lessee
shall in no event have any right to reimbursement from Lessor for any funds
contributed by Lessee to repair any such damage or destruction. Premises Partial
Damage due to flood or earthquake shall be subject to Paragraph 9.3 rather than
Paragraph 9.2, notwithstanding that there
may be some insurance coverage, but the net proceeds of any such insurance shall
be made available for the repairs if made by either Party.
9.3 PARTIAL DAMAGE - UNINSURED LOSS. If Premises Partial Damage that is
not an Insured Loss occurs unless caused by a negligent or willful act of Lessee
( in which event Lessee shall make the repairs at Lessee's expense and this
Lease shall continue in full force and effect), Lessor may at Lessor's option
either (i) repair such damage as soon as reasonably possible at Lessor's
expense, in which event this Lease shall continue in full force and effect, or
(ii) give written notice to Lessee within thirty (30) days after receipt by
Lessor of the knowledge of the occurrence of such damage of Lessor's desire to
terminate this Lease as of the date sixty (60) days following the date of
notice. In the event Lessor elects to give such notice of Lessor's intention to
terminate this Lease, Lessee shall have the right within ten (10) days after the
receipt of such notice to give written notice to Lessor of Lessee's commitment
to pay for the repair of such damage totally at Lessee's expense and without
reimbursement from Lessor. Lessee shall provide Lessor with the required funds
or satisfactory assurance thereof within thirty (30) days following such
commitment from Lessee. In such event this Lease shall continue m full force and
effect, and Lessor shall proceed to make such repairs as soon as reasonably
possible after the required funds are available. If Lessee does not give such
notice and provide the funds or assurance thereof within the times specified
above, this Lease shall terminate as of the date specified in Lessor's notice of
termination.
9.4 TOTAL DESTRUCTION. If Premises Total Destruction occurs at any time
during the first three (3) years of the Original Term of this Lease, Lessor
shall be required to rebuild the Premises in the same manner, and subject to the
same terms, conditions, and limitations as set forth in Paragraphs 9.2 above, as
if Premises Partial Damage had occurred, provided, however, that notwithstanding
any other language to the contrary or other provision of this Lease, Lessor
shall not be required to perform any rebuilding of the Premises as the result of
Premises Total Destruction which exceeds in amount the total of any insurance
proceeds actually received by Lessor for such Premises Total Destruction plus
any additional funds actually provided by Lessee to Lessor to cover repair of
Premises Total Destruction. Notwithstanding any other provision hereof, if
Premises Total Destruction occurs (including any destruction required by any
authorized public authority) at any time following the first three (3) years of
the Original Term of this Lease, this Lease shall terminate sixty (60) days
following the date of such Premises Total Destruction, whether or not the damage
or destruction is an insured Loss or was caused by a negligent or willful act of
Lessee. In the event, however, that the damage or destruction was caused by
Lessee, Lessor shall have the right to recover Lessor's damages from Lessee
except as released and waived in Paragraph 9.7.
9.5 DAMAGE NEAR END OF TERM. If any time during the last six (6) months
of the term of this Lease there is damage for which the cost to repair exceeds
one month's Base Rent, whether or not an Insured Loss, Lessor may, at Lessor's
option, terminate this Lease effective sixty (60) days following the date of
occurrence of such damage by giving written notice to Lessee of Lessor's
election to do so within thirty (30) days after the date of occurrence of such
damage. Provided, however, if Lessee at that time has an exercisable option to
extend this Lease or to purchase the Premises, then Lessee mar preserve this
Lease by (a) exercising such option, and (b) providing Lessor with any shortage
in insurance proceeds (or adequate assurance thereof) needed to make the repairs
on or before the earlier of (i) the date which is ten (10) days after Lessee's
receipt of Lessor's written notice purporting to terminate this Lease, or (ii)
the day prior to the date upon which such option expires. If Lessee duly
exercises such option during such period and provides Lessor with funds (or
adequate assurance thereof) to cover any shortage in insurance proceeds, Lessor
shall repair such damage as soon as reasonably possible and this Lease shall
continue in full force and effect. If Lessee fails to exercise such option and
provide such funds or assurance during such period, then this Lease shall
terminate as of the date set forth in the first sentence of this Paragraph 9.5.
9.6 ABATEMENT OF RENT. In the event of (i) Premises Partial Damage or
(ii) Hazardous Substance Condition for which Lessee is not legally responsible,
the Base Rent, Common Area Operating Expenses and other charges, if any, payable
by Lessee hereunder for the period during which such damage or condition, its
repair, remediation or restoration continues, shall be abated in proportion to
the degree to which Lessee's use of the Premises is impaired, but not in excess
of proceeds from insurance required to be carried under Paragraph 8.3(b). Except
for abatement of Base Rent, Common Area Operating Expenses and other charges, if
any, as aforesaid, all other obligations of Lessee hereunder shall be performed
by Lessee, and Lessee shall have no claim against Lessor for any damage suffered
by reason of any such damage, destruction, repair, remediation or restoration.
9.7 HAZARDOUS SUBSTANCE CONDITIONS. If a Hazardous Substance Condition
occurs, unless Lessee is legally responsible therefor (in which case Lessee
shall make the investigation and remediation thereof required by Applicable
Requirements and this Lease shall continue in full force and effect, but subject
to Lessor's rights under Paragraph 6.28 and Paragraph 13), Lessor may at
Lessor's option either (J) investigate and remediate such Hazardous Substance
Condition, if required, as soon as reasonably possible at Lessor's expense, in
which event this Lease shall continue in full force and effect, or (ii) if the
estimated cost to investigate and remediate such condition exceeds twelve (12)
times the then monthly Base Rent or $100,000 whichever is greater, give written
notice to Lessee within thirty (30) days after receipt by Lessor of knowledge of
the occurrence of such Hazardous Substance Condition of Lessor's desire to
terminate this Lease as of the date sixty (60) days following the ,date of such
notice. In the event Lessor elects to give such notice of Lessor's intention to
terminate this Lease, Lessee shall have the right within ten (10) days after the
receipt of such notice to give written notice to Lessor of Lessee's commitment
to pay for the excess costs of (a) investigation and remediation of such
Hazardous Substance Condition to the extent required by Applicable Requirements,
over (b) an amount equal to twelve (12) times the then monthly Base Rent or
$100,000, whichever is greater. Lessee shall provide Lessor with the funds
required of Lessee or satisfactory assurance thereof within thirty (30) days
following said commitment by Lessee. In such event this Lease shall continue in
full force and effect, and Lessor shall proceed to make such investigation and
remediation as soon as reasonably possible after the required funds are
available. If Lessee does not give such notice and provide the required funds or
assurance thereof within the time period specified above, this Lease shall
terminate as of the date specified in Lessor's notice of ton.
9.8 TERMINATION - ADVANCE PAYMENTS. Upon termination of this Lease
pursuant to this Paragraph 9, Lessor shall return to Lessee any advance payment
made by Lessee to Lessor and so much of Lessee's Security Deposit as has not
been, or is not then required to be, used by Lessor under the terms of this
Lease.
9.9 WAIVER OF STATUTES. Lessor and Lessee agree-that the terms of this
Lease shall govern the effect of any damage to or destruction of the Premises
and the Building with respect to the termination of this Lease and hereby waive
the provisions of any present or future statute to the extent it is inconsistent
herewith.
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF TAXES. Lessor shall pay the Real Property Taxes, as
defined in Paragraph 10.2, applicable to the Project, and except as otherwise
provided in Paragraph 10.3, any such amounts shall be included in the
calculation of Common Operating Expenses in accordance with the provisions of
Paragraph 4.2.
10.2 REAL PROPERTY TAX DEFINITION. As used herein, the term "Real
Property Taxes" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax (other than inheritance,
personal income or estate taxes) imposed upon the Project by any authority
having the direct or indirect power to tax, including any city, state or federal
government, or any school, agricultural, sanitary, fire, street, drainage, or
other improvement district thereof levied against any legal or equitable
interest of Lessor in the Project or any portion thereof; Lessor's right to rent
or other income therefrom, and/or Lessor's business of leasing the Premises. The
term "Real Property Taxes" shall also include any tax, fee, levy, assessment or
charge, or any increase therein, unposed by reason of events occurring, or
changes in Applicable Law taking effect, during the term of this Lease,
including but not limited to a change in the ownership of the Project or in the
improvements thereon, the execution of this Lease, or any modification,
amendment or transfer thereof, and whether or not contemplated by the Parties.
In calculating Real Property Taxes for any calendar year, the Real Property
Taxes for any real estate tax year shall be included in the calculation of Real
Property Taxes for such calendar year based upon the number of days which such
calendar year and tax year have in common.
10.3 ADDITIONAL IMPROVEMENTS. Common Area Operating Expenses shall not
include Real Property Taxes specified in the tax assessor's records and work
sheets as being caused by additional improvements placed upon the Project by
other lessees or by Lessor for the exclusive enjoyment of such other lessees.
Notwithstanding Paragraph 10.1 hereof; Lessee shall, however, pay to Lessor at
the time Common Area Operating Expenses are payable under Paragraph 4.2, the
entirety of any increase in Real Property Taxes if assessed solely by reason of
Alterations, Trade Fixtures or Utility Installations placed upon the Premises by
Lessee or at Lessee's request.
10.4 JOINT ASSESSMENT. If the Building is not separately assessed, Real
Property Taxes allocated to the Building 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 rive
valuations assigned in the assessor's work sheets or such other information as
may be reasonably available. Lessor's reasonable determination thereof; in good
faith, shall be conclusive.
10.5 LESSEE'S PROPERTY TAXES. Lessee shall pay prior to delinquency all
taxes assessed against and levied upon Alterations and Utility Installations,
Trade Fixtures, furnishings, equipment and all personal property of Lessee
contained in the Premises or stored within the Project. When possible, Lessee
shall cause Alterations and Utility Installations, Trade Fixtures, furnishings,
equipment and all other personal property to be assessed and billed separately
from the real property of Lessor. If any of Lessee's property shall be assessed
with Lessor's real property, Lessee shall pay Lessor the taxes applicable to
Lessee's property within ten (10) days after receipt of a written statement
setting forth the taxes applicable to Lessees property.
11. UTILITIES. Lessor shall not provide any utility service (including but not
limited to telephone, gas, electricity, etc.) to Lessee or the Premises. All
utilities required by Lessee and for the Premises shall (if available) be
obtained by Lessee and installed by the appropriate utility company, and Lessee
shall cause all such utilities to be separately metered to Lessee. All charges
for such utility services, including installation, shall be billed directly to
Lessee by such utility. Lessee shall pay directly for all utilities and services
supplied to the Premises, together with any taxes thereon, and shall make all
payments to said utility providers when the same are due.
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED.
(a) Lessee shall not voluntarily or by operation of law assign, transfer,
mortgage or otherwise transfer or encumber (collectively, "assign") or sublet
all or any part of Lessee's interest in this Lease or in the Premises without
Lessor's prior written consent given under and subject to the terms of Paragraph
36. Notwithstanding any language to the contrary in this Paragraph 12 or in this
Lease, Lessor shall be deemed to have given its written consent by the execution
of this Lease to the assignment, transfer, or subletting by Lessee of this
Lease, or any portion of Lessee's rights in and to the occupancy and use of the
Premises under this Lease, to any subsidiary or affiliate of Lessee, provided
that Lessee shall remain fully liable to Lessor for the full performance of all
terms: provisions, covenants, conditions, and promises set forth in this Lease
following said assignment, transfer, or subletting. For purposes of this
Paragraph 12, an "affiliate" of Lessee shall mean any entity in which Lessee
owns more than fifty percent (50%) of the outstanding ownership interests or any
entity that is under common control with Lessee.
(b) A change in over fifty percent (50%) of the control of Lessee shall
constitute an assignment requiring Lessor's consent. The transfer, on a
cumulative basis, of over fifty percent (50%) or more of the voting control of
Lessee shall constitute a change in control for this purpose.
(c) The involvement of Lessee or its assets in any transaction, or series
of transactions (by way of merger, sale, acquisition, financing, refinancing,
transfer, leveraged buy-out or otherwise), whether or not a formal assignment or
hypothecation of this Lease or Lessee's assets occurs, which results or will
result in a reduction of the Net Worth of Lessee, as hereinafter defined, by an
amount equal to or greater than twenty-five percent (25%) of such Net Worth of
Lessee as it was represented to Lessor at the time of full execution and
delivery of this Lease or at the time of the most recent assignment to which
Lessor has consented, or as it exists immediately prior to said transaction or
transactions constituting such reduction, at whichever time said Net Worth of
Lessee was or is greater, shall be considered an assignment of this Lease by
Lessee to which Lessor may reasonably withhold its consent. "Net Worth of
Lessee" for purposes of this Lease shall be the net worth of Lessee (excluding
any Guarantors) established under generally accepted accounting principles
consistently applied.
(d) An assignment or subletting of Lessee's interest in this Lease without
Lessor's specific prior written consent shall, at Lessors option, be a Default
arable after notice per Paragraph 13.1, or a non-curable Breach without the
necessity of any notice and grace period. If Lessor elects to treat such
unconsented to assignment or subletting as a noncurable Breach, Lessor shall
have the right to either. (i) terminate this Lease, or (ii) upon thirty (30)
days' written notice ("Lessor's Notice"), increase the Monthly Base Rent for the
Premises to the greater of the then fair market rental value of the Premises, as
reasonably determined by Lessor, or one hundred ten percent (110%) of the
Monthly Base Rent then in effect. Pending determination of the new fair market
rental value, if disputed by Lessee, Lessee shall pay the amount set forth in
Lessor's Notice, with any overpayment credited against the next installment(s)
of Monthly Base Rant coming due, and any underpayment for the period
retroactively to the effective date of the adjustment being due and payable
immediately upon the determination thereof. Further, in the event of such Breach
and rental adjustment, (i) the purchase price of any option to purchase the
Premises held by Lessee shall be subject to similar adjustment to the then fair
market value as reasonably determined by Lessor (without the Lease being
considered an encumbrance or any deduction for depreciation or obsolescence, and
considering the Premises at its highest and best use and in good condition) or
one hundred ten percent (110%) of the ,price previously in effect, (ii) any
index-oriented rental or price adjustment formulas
contained in this Lease shall be adjusted to require that the base index be
determined with reference to the index applicable to the time of such
adjustment, and (iii) any fixed rental adjustments scheduled during the
remainder of the Lease term shall be increased in the same ratio as the new
rental bears to the Monthly Base Rent in effect immediately prior to the
adjustment specified in Lessor's Notice.
(e) Lessee's remedy for any breach of this Paragraph 12.1 by Lessor shall
be limited to compensatory damages and/or injunctive relief.
12.2 TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND SUBLETTING.
(a) Regardless of Lessor's consent, any assignment or subletting shall not
(i) be effective without the express written assumption by such assignee or
sublessee of the obligations of Lessee under this Lease, (ii) release Lessee of
any obligations hereunder, nor (iii) alter the primary liability of Lessor
hereunder or for the performance of any other obligations to be performed by
Lessee under this Lease.
(b) Lessor may accept any rent or performance of Lessee's obligations from
any person other than Lessee pending approval or disapproval of an assignment.
Neither a delay in the approval or disapproval of such assignment nor the
acceptance of any rent for performance shall constitute a waiver or estopped of
Lessor's right to exercise its remedies for the Default or Breach by Lessee of
any of the terms, covenants or conditions of this Lease.
(c) The consent of Lessor to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting by Lessee or to
any subsequent or successive assignment or subletting by the assignee or
sublessee. However, Lessor may consent to subsequent sublettings and assignments
of the sublease or any amendments or modifications thereto without notifying
Lessee or anyone else liable under this Lease or the sublease and without
obtaining their consent, and such action shall not relieve such persons from
liability under this Lease or the sublease.
(d) In the event of any Default or Breach of Lessee's obligation under this
Lease, Lessor may proceed directly against Lessee, am Guarantors or anyone else
responsible for the performance of the Lessee's obligations under this Lease,
including any subleases, without first exhausting Lessor's remedies against any
other person or entity responsible therefor to Lessor, or any security held by
Lessor.
(e) Each request for consent to an assignment or subletting shall be in
writing, accompanied by information relevant to Lessor's determination as to the
financial and operational responsibility and appropriateness of the proposed
assignee or sublessee, including but not limited to the intended use and/or
required modification of the Premises if any, together with a non-refundable
deposit of $1,000, as reasonable consideration for Lessor's considering and
processing the request for consent. Lessee agrees to provide Lessor with such
other or additional information and/or documentation as may be reasonably
requested by Lessor.
(f) Any assignee of, or sublessee under, this Lease shall, by reason of
accepting such assignment or entering into such sublease, be deemed, for the
benefit of Lessor, to have assumed and agreed to conform and comply with each
and every term, covenant, condition and obligation herein to be observed or
performed by Lessee during the term of
said assignment or sublease, other than such obligations as are contrary to or
inconsistent with provisions of an assignment or sublease to which Lessor has
specifically consented in writing.
12.3 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. The
following terms and conditions shall apply to any subletting by Lessee of all or
any part of the Premises and shall be deemed included in all subleases under
this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's interest
in all rentals and income arising from any sublease of all or a onion of the
Premises heretofore or hereafter made by Lessee, up to, but not in excess of,
amounts due from Lessee to Lessor under this Lease, and Lessor may collect such
rent and income and apply same toward Lessee's obligations under this Lease;
provided, however, that until a Breach (as defined in Paragraph 13.1) shall
occur in the performance of Lessee's obligations under this Lease, Lessee may,
except as otherwise provided in this Lease, receive, collect and enjoy the rents
accruing under such sublease. Lessor shall not, by reason of the foregoing
provision or any other assignment of such sublease to Lessor, nor by reason of
the collection of the rents from a sublessee, be deemed liable to the sublessee
for any failure of Lessee to perform and comply with any of Lessee's obligations
to such sublessee under such Sublease. Lessee hereby irrevocably authorizes and
directs any such sublessee, upon receipt of a written notice from Lessor stating
that a Breach exists in the performance of Lessee's obligations under this Lease
to pay to Lessor the rents and other charges due and to become due under the
sublease, up to, but not in excess of, amounts due from Lessee to Lessor under
this Lease. Sublessee shall rely upon any such statement and request from Lessor
and shall pay such rents and other charges to Lessor without any obligation or
right to inquire as to whether such Breach exists and notwithstanding any notice
from or claim from Lessee to the contrary. Lessee shall have no right or claim
against such sublessee, or, until the Breach has been cured, against Lessor,
for. any such rents and other charges so paid by said sublessee to Lessor.
(b) In the event of a Breach by Lessee in the performance of its
obligations under this Lease, Lessor, at its option and without any obligation
to do so may require any sublessee to attorn to Lessor, in which event Lessor
shall undertake the obligations of the sublessor under such sublease from the
time of the exercise of said option to the expiration of such sublease;
provided, however, Lessor shall not be liable for any prepaid rents or security
deposit paid by such sublessee to such sublessor or for any other prior defaults
or breaches of such sublessor under such sublease.
(c) Any matter or thing requiting the consent of the sublessor under a
sublease shall also require the consent of Lessor herein.
(d) No sublessee under a sublease approved by Lessor shall further assign
or sublet all or any part of the Premises without Lessor's prior written
consent.
(e) Lessor shall deliver a copy of any notice of Default or Breach by
Lessee to the sublessee, who shall have the right to cure the Default of Lessee
within the grace period, if any, specified in such notice.
13. DEFAULT; BREACH; REMEDIES.
13.1 DEFAULT - BREACH. Lessor and Lessee agree that if an attorney is
consulted by Lessor in connection with a Lessee Default or Breach (as
hereinafter defined), $350.00 is a reasonable minimum sum per such occurrence
for legal services and costs in the preparation and service of a notice of
Default, and that Lessor may include the cost of such services and costs in said
notice as rent due and payable to care said default. A "Default" by Lessee is
defined as a failure by Lessee to observe, comply with or perform any of the
terms, covenants, conditions or rules applicable to Lessee under this Lease. A
"Breach" by Lessee is defined as the occurrence of any one or more of the
following Defaults, and, where a grace period for cure after notice is specified
herein, the failure by Lessee to care such Default prior to the expiration of
the applicable grace period, and shall entitle Lessor to pursue the remedies set
forth in Paragraph 13.2:
(a) The vacating of the Premises without the intention to reoccupy same, or
the abandonment of the Premises.
(b) Except as expressly otherwise provided in this Lease, the failure by
Lessee to make any payment of Monthly Base Rent, Monthly Percentage Rent,
Lessee's Share of Common Area Operating Expenses, or any other monetary payment
required to be made by Lessee hereunder as and when due, the failure by Lessee
to provide Lessor with reasonable evidence of insurance or surety bond required
under this Lease, or the failure of Lessee to fulfill any obligation under this
Lease which endangers or threatens life or property, where such failure
continues for a period of three (3) days following written notice thereof by or
on behalf of Lessor to Lessee.
(c) Except as expressly otherwise provided in this Lease, the failure by
Lessee to provide Lessor with reasonable written evidence (in duly executed
original form if applicable) of (i) compliance with Applicable Requirements per
Paragraph 6.3, (ii) the inspection, maintenance and service contracts required
under Paragraph 7.1(b), (iii) the rescission of an unauthorized assignment or
subletting per Paragraph 12.1, (iv) a Tenancy Statement per Paragraphs 16 or 37,
(v) the subordination or non-subordination of this Lease per Paragraph 30, (vi)
the guaranty of the performance of Lessee's obligations under this Lease if
required under Paragraphs 1.11 and 37, (vii) the execution of any document
requested under Paragraph 42 (easements), or (viii) any other documentation or
information which Lessor may reasonably require of Lessee under the terms of
this lease, where any such failure continues for a period of ten (10) days
following written notice by or on behalf of Lessor to Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions or
provisions of this Lease, or of the rules adopted under Paragraph 40 hereof that
are to be observed, complied with or performed by Lessee, other than those
described in Subparagraphs 13.1 (a), (b) or (c), above, where such Default
continues for a period of thirty (30) days after written notice thereof by or on
behalf of Lessor to Lessee; provided, however, that if the
nature of Lessee's Default is such that more than thirty (30) days are
reasonably required for its cure, then it shall not be deemed to be a Breach of
this Lease by Lessee if Lessee commences such cure within said thirty (30) day
period and thereafter diligently prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) the making by Lessee
of any general arrangement or assignment for the benefit of creditors,(i)
Lessee's becoming a "debtor" as defined in 11 U.S. Code Section 101 or any
successor statute thereto (unless, in the case of a petition filed against
Lessee, the same is dismissed within 1 (60) days); (iii) the appointment of a
trustee or receiver to take possession of substantially of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where
possession is not restored to Lessee within thirty (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 thirty (30) days; provided, however, in the
event that any provision of this Subparagraph 13.1 (e) is contrary to any
applicable law, such provision shall be of no force or effect, and shall not
affect the validity of the remaining provisions.
(f) The discovery by Lessor that any financial statement of Lessee or of
any Guarantor, given to Lessor by Lessee or any Guarantor, was materially false.
(g) If the performance of Lessee's obligations under this Lease is
guaranteed: (i) the death of a Guarantor, (ii) the termination of a Guarantor's
liability with respect to this Lease other than in accordance with the terms of
such guaranty, (iii) a Guarantor's becoming insolvent or the subject of a
bankruptcy filing, (iv) a Guarantor's refusal to honor the guaranty, or (v) a
Guarantor's breach of its guaranty obligation on an anticipatory breach bass,
and Lessee's failure, within sixty (60) days following written notice by or on
behalf of Lessor to Lessee of any such event, to provide Lessor with written
alternative assurances of security, which, when coupled with the then existing
resources of Lessee, equals or exceeds the combined financial resources of
Lessee and the Guarantors that existed at the time of execution of this Lease.
13.2 REMEDIES. If Lessee fails to perform any affirmative duty or
obligation of Lessee under this Lease, within ten (10) days after written notice
to Lessee (or in case of an emergency, without notice), Lessor may at its option
(but without obligation to do so), perform such duty or obligation on Lessee's
behalf, including but not limited to the obtaining of reasonably required bonds,
insurance policies, or governmental licenses, permits or approvals. The costs
and expenses of any such performance by Lessor shall be due and payable by
Lessee to Lessor upon invoice therefor. If any check given to Lessor by Lessee
shall not be honored by the bank upon which it is drawn, Lessor, at its own
option, may require all future payments to be made under this Lease by Lessee to
be made only by cashier's check. In the event of a Breach of this Lease by
Lessee (as defined in Paragraph 13.1), with or without further notice or demand,
and without limiting Lessor in the exercise of any right or remedy which Lessor
may have by reason of such Breach, Lessor may:
(a) Terminate Lessee's right to possession of the Premises by any lawful
means, in which case this Lease and the term hereof shall terminate and Lessee
shall immediately surrender possession of the Premises to Lessor. In such event
Lessor shall be entitled to recover from Lessee: (i) the worth at the time of
the award of the unpaid rent which had been earned at the time of termination;
(ii) the worth at the time of award of the amount
by which the unpaid rent which would have been earned after termination until
the time of award exceeds the amount of such rental loss that the Lessee proves
could have been reasonably avoided; (iii) the worth at the time of award of the
amount by which the unpaid rent for the balance of the term after the time of
award exceeds the amount of such rental loss that the Lessee proves could be
reasonably avoided; and (iv) any other amount necessary to compensate Lessor for
all the detriment proximately caused by the Lessee's failure to per form its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom, 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 attorneys' fees, and that
portion of any leasing
commission paid by Lessor in connection with this Lease applicable to the
unexpired term of this Lease. The worth at the time of award of the amount
referred to in provision (iii) of the immediately preceding sentence shall be
computed by discounting such amount at
the discount rate of the Federal Reserve Bank of San Francisco or the Federal
Reserve Bank District in which the Premises are located at the time of award
plus one percent (1%). Efforts by Lessor to mitigate damages caused by Lessee's
Default or Breach of this Lease shall not waive Lessor's right to recover
damages under this Paragraph 13.2. If termination of this Lease is obtained
through the provisional remedy of unlawful detainer Lessor shall have the right
to recover in such proceeding the unpaid rent and damages as are recoverable
therein, or Lessor may reserve the right to recover all or any part thereof in a
separate suit for such rent and/or damages. If a notice and grace period
required under Subparagraph 13.1(b), (c) or (d) was not previously given, a
notice to pay rent or quit, or to perform or quit, as the case may be, given to
Lessee under any statute authorizing the forfeiture of leases for unlawful
detainer shall also constitute the applicable notice for grace period purposes
required by Subparagraph 13.1(b), (c) or (d). In such case, the applicable grace
period under the unlawful detainer statue shall run concurrently after the one
such statutory notice, and the failure of Lessee to cure the Default within the
greater of the two (2) such grace periods shall constitute both an unlawful
detainer and a Breach of this Lease entitling Lessor to the remedies provided
for in this Lease and/or by said statute.
(b) Continue the Lease and Lessee's right to possession in effect (in
California under California Civil Code Section 1951.4) after Lessee's Breach and
recover the rent as it becomes due, provided Lessee has the right to sublet or
assign, subject only to reasonable limitations. Lessor and Lessee agree that the
limitations on assignment and subletting in this Lease are reasonable. Acts of
maintenance or preservation, efforts to relet the Premises, or the appointment
of a receiver to protect the Lessor's interest under this Lease, shall not
constitute a termination of the Lessee's right to possession.
(c) Pursue any other remedy now or hereafter available to Lessor under the
laws or judicial decisions of the state wherein the Premises are located.
(d) The expiration or termination of this Lease and/or the termination of
Lessee's right to possession shall not relieve Lessee from liability under any
indemnity provisions of this Lease as to matters occurring or accruing during
the term hereof or by reason of Lessee's occupancy of the Premises.
13.3 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 be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges which may be imposed upon Lessor by the
terms of any ground lease, mortgage or deed of trust covering the Premises.
Accordingly, if any installment of rent or 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 then, without any
requirement for notice to Lessee, Lessee shall pay to Lessor a late charge equal
to six percent (6%) 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 or Breach with
respect to such overdue amount, nor prevent Lessor from exercising any of the
other rights and remedies granted hereunder. In the event that a late charge is
payable hereunder, whether or not collected, for three (3) consecutive
installments of Monthly Base Rent, then
notwithstanding Paragraph 4.1 or any other provision of this Lease to the
contrary, Monthly Base Rent shall, at Lessors option, become due and payable
quarterly in advance.
13.4 BREACH BY LESSOR. Lessor shall not be deemed in breach of this Lease
unless Lessor fails within a reasonable time to perform an obligation required
to be performed by Lessor. For purposes of this Paragraph 13.4, a reasonable
time shall in no event be less than thirty (30) days after receipt by Lessor,
and by any Lenders) whose name and address shall have been furnished to Lessee
in writing for such purpose, of written notice specifying wherein such
obligation of Lessor has not been performed; provided, however, that if the
nature of Lessor's obligation is such that more than thirty (30) days after such
notice are reasonably required for its performance, then Lessor shall not be in
breach of this Lease if performance is commenced within such thirty (30) day
period and thereafter diligently pursued to completion.
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 (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 less than ten percent (10%) of
the floor area of the Premises is taken by condemnation, this Lease shall remain
in full force and effect as to the portion of the Premises remaining, except
that the Base Rent shall be reduced in the same proportion as the rentable floor
area of the Premises taken bears to the total rentable floor area of the
Premises. If more than ten percent (10%) of the floor area of the Premises is
taken by condemnation, Lessee shall have the right, exercisable at Lessee's
option, to terminate the Lease. If Lessee does not elect to terminate the Lease,
the Monthly Base Rent shall be reduced in the same proportion as the rentable
area of the Premises taken bears to the total rentable area of the Premises
prior to the taking . No reduction of Base Rent shall occur if the condemnation
does not apply to any portion of the Premises, and does not reduce Lessee's
parking or unreasonably adversely impact access to 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 of value of the leasehold or for the taking of the fee, or as
severance damages, provided, however, that Lessee shall be entitled to any
compensation, separately awarded to Lessee for Lessee's relocation expenses.
Lessor shall to the extent of its net severance damages received over and above
Lessee's Share of the legal and other expenses incurred by Lessor m the
condemnation matter, repair any damage to the Premises caused by such
condemnation authority. Lessee shall be responsible for the payment of any
amount in excess of such net severance damages required to complete such repair.
15. BUSINESS LICENSES. Lessee shall be responsible, at its sole cost and
expense, for obtaining and continuing in valid and active status any and all
licenses and permits required from any applicable governmental authority for the
operation of a first class restaurant and catering business within the Premises.
Lessor agrees to cooperate with and assist Lessee to such extent as is
reasonably necessary in the application process for obtaining such licenses and
permits, but shall not be required to expend any sums whatsoever in connection
therewith.
16. TENANCY STATEMENTS, FINANCIAL STATEMENTS, ESTOPPEL CERTIFICATES, AND
CORPORATE DOCUMENTS.
16.1 TENANCY STATEMENT. Each Party (as "Responding Party") shall within
ten (10) business days after written notice from the other Party (the
"Requesting Party") execute, acknowledge and deliver, to the Requesting Party a
statement in writing in a form similar to the then most current "Tenancy
Statement" form published by the American Industrial Real Estate Association,
plus such additional information, confirmation and/or statements as may be
reasonably requested by the Requesting Party.
16.2 FINANCIAL STATEMENT. Lessee shall provide to Lessor copies of
Lessee's current financial statements no later than March 15, 1996. Lessor
expressly reserves the right to terminate this Lease without any further
obligation if the financial statements of Lessee are deemed unacceptable by
Lessor. In addition, if Lessor desires to finance, refinance, or sell the
Premises or the Building, or any part thereof; Lessee and all Guarantors shall
deliver to any potential lender or purchaser designated by Lessor such financial
statements of Lessee and such Guarantors as may be reasonably required by such
lender or purchaser, including but not limited to Lessee's financial statements
for the past three (3) years. All such financial statements shall be received by
Lessor and such lender or purchaser in confidence and shall be used only for the
purposes herein set forth.
16.3 ESTOPPEL CERTIFICATES. Lessee within ten (10) business days after
notice from the Lessor, shall execute and deliver to Lessor a certificate
stating that this Lease is unmodified and in fill force and effect, or in full
force and effect as modified, and stating the modification. The certificate
shall also state the amount of minimum monthly rent, the dates to which rent has
been paid in advance, and the amount of any security deposit or prepaid rent,
if any, as well as acknowledging that there are not, to that party's knowledge,
any uncured defaults on the part of the other party, or specifying such
defaults, it any, which are claimed. Failure to deliver such a certificate
within the ten (10 business day period shall be conclusive upon Lessee that this
Lease is in full force and effect, that there are no uncured defaults hereunder,
and that the Lease has not been modified except as may be represented by Lessor.
16.4 CORPORATE DOCUMENTS. Lessee, if a corporation, covenants and agrees,
promptly upon the execution of this Lease, to provide to Lessor: (a) a copy of
its authority from the Secretary of State of California authorizing Lessee to do
business in California; and (b) the location of its registered office and
registered agent in California.
17. LESSOR'S LIABILITY. The term "Lessor" as used herein shall mean the
owner or owners at the time in question of the fee title to the Premises. In the
event of a transfer of Lessor's title or interest m the Premises or in this
Lease, Lessor shall deliver to the transferee or assignee (in cash or by credit)
any unused Security Deposit held by Lessor at the time of such transfer or
assignment. Upon such transfer or assignment and delivery of the Security
Deposit, as aforesaid, the prior Lessor shall be relieved of all liability with
respect to the obligations and/or covenants under this Lease thereafter to be
performed by the Lessor. Subject to the foregoing, the obligations and/or
covenants in this Lease to be performed by the Lessor shall be binding only upon
the Lessor as hereinabove defined
18. 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.
19. INTEREST ON PAST DUE OBLIGATIONS. Any monetary payment due Lessor
hereunder, other than late charges, not received by Lessor within ten (10) days
following the date on which it was due, shall bear interest from the date due at
the prime rate charged by the largest state chartered bank in the state in which
the Premises are located plus four (4%) per annum, but not exceeding the maximum
rate allowed by law, in addition to the potential late charge provided for in
Paragraph 13.3.
20. TIME OF ESSENCE. Time is of the essence with respect to the
performance of all obligations to be performed or observed by the Parties under
this Lease.
21. RENT DEFINED. All monetary obligations of Lessee to Lessor under the
terms of this Lease are deemed to be rent.
22. NO PRIOR OR OTHER AGREEMENTS. This Lease contains all agreements
between the Parties with respect to any matter mentioned herein, and no other
prior or contemporaneous agreement or understanding shall be effective. Lessor
and Lessee each represent and warrant to each other that it has made, and is
relying solely upon, its own investigation as to the nature, quality, character
and financial responsibility of the other Party to this Lease and as to the
nature, quality and character of the Premises.
23. NOTICES.
23.1 NOTICE REQUIREMENTS. All notices required or permitted by this Lease
shall be in writing and may be delivered in person (by hand or by messenger or
courier service) or may be sent by regular, certified or registered mail or US.
Postal Service Express Mail, with postage prepaid, or by facsimile transmission
during normal business hours, and shall be deemed sufficiently given if served
in a manner specified in this Paragraph 23. The addresses noted adjacent to a
Party's signature on this Lease shall be that Party's address for delivery or
mailing of notice purposes. Either Party may by written notice to the other
specify a different address for notice purposes, except that upon Lessee's
taking possession of the Premises, the Premises shall constitute Lessee's
address for the purpose of mailing or delivering notices to Lessee. A copy of
all notices required or permitted to be given to Lessor hereunder shall be
concurrently transmitted to such party or parties at such addresses as Lessor
may from time to time hereafter designate by written notice to Lessee.
23.2 DATE OF NOTICE. Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given on the date of delivery shown on
the receipt card, or if no delivery date is shown, the postmark thereon. If sent
by regular mail, the notice shall be deemed given forty-eight (48) hours after
the same is addressed as required herein and mailed with postage prepaid.
Notices delivered by United States Express Mail or overnight courier that
guarantees next day delivery shall be deemed given twenty-four (24) hours after
delivery of the same to the United States Postal Service or courier. If any
notice is transmitted by facsimile transmission or similar means, the same shall
be deemed served of delivered upon telephone or facsimile confirmation of
receipt of the transmission thereof, provided a copy is also delivered via
delivery or mail. If notice is received on a Saturday or a Sunday or a legal
holiday, it shall be deemed received on the next business day.
24. WAIVERS. No waiver by Lessor of the Default or Breach of any term,
covenant or condition hereof by Lessee, shall be deemed a waiver of any other
term, covenant or condition hereof, or of any .subsequent Default or Breach by
Lessee of the same or any other term, covenant or condition hereof. Lessor's
consent to, or approval of, any such act shall not be deemed to render
unnecessary the obtaining of Lessor's consent to, or approval of, any subsequent
or similar act by Lessee, or be construed as the basis of an estopped to enforce
the provision or provisions of this Lease requiring such consent. Regardless of
Lessor's knowledge of a Default or Breach at the time of accepting rent, the
acceptance of rent by Lessor shall not be a waiver of any Default or Breach by
Lessee of any provision hereof. Any payment given Lessor by Lessee may be
accepted by Lessor on account of moneys or damages due Lessor, notwithstanding
any qualifying statements or conditions made by Lessee in connection therewith,
which such statements and/or conditions shall be of no force or effect
whatsoever unless specifically agreed to in writing by Lessor at or before the
time of deposit of such payment.
25. RECORDING. Either Lessor or Lessee shall, upon recent of the other,
execute, acknowledge and deliver to the other a short form memorandum of this
Lease for recording purposes. The
Party requesting recordation shall be responsible for payment of any fees or
taxes applicable thereto.
26. NO RIGHT TO HOLDOVER. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or earlier termination of
this Lease. In the event that Lessee holds over in violation of this Paragraph
26 then the Monthly Base Rent payable from and after the time of the expiration
or earlier termination of this Lease shall be increased to one hundred fifty
percent (150%) of the Monthly Base Rent applicable during the month immediately
preceding such expiration or earlier termination. Nothing contained herein shall
be construed as a consent by Lessor to any holding over by Lessee.
27. 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. All rights and remedies of Lessor herein shall be cumulative,
and none shall exclude any other right or remedy allowed by law or in equity.
28. COVENANTS AND CONDITIONS. All provisions of this Lease to be observed
or performed by Lessee are both covenants and conditions.
29. BINDING EFFECT - CHOICE OF LAW. This Lease shall be binding upon the
Parties, their personal representatives, successors and assigns and be governed
by and construed in accordance with the laws of the State of California. Any
litigation between the Parties hereto concerning this Lease shall be initiated
in the county in which the Premises are located.
30. SUBORDINATION; ATTORNMENT; NON-DISTURBANCE.
30.1 SUBORDINATION. This Lease and any Option granted hereby shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or other
hypothecation or security device (collectively, "Security Device"), hereafter
placed by Lessor upon the real property of which the Premises are a part, to any
and all advances made on the security thereof, and to all renewals,
modifications, consolidations, replacements and extensions thereof. Lessee
agrees that the Lenders holding any such Security Device shall have no duty,
liability or obligation to perform any of the obligations of Lessor under this
Lease, but that in the event of Lessor's default with respect to any such
obligation, Lessee will give any Lender whose name and address have been
furnished Lessee in writing for such purpose notice of Lessor's default pursuant
to Paragraph 13.4. If any Lender shall elect to have this Lease and/or any
Option granted hereby superior to the lien of its Security Device and shall give
written notice thereof to Lessee, this Lease and such Options shall be deemed
prior to such Security Device, notwithstanding the relative dates of the
documentation or recordation thereof. Lessor hereby represents and warrants to
Lessee that the Project is not presently subject to or encumbered by any ground
lease, mortgage, deed of trust or other hypothecation or security device, and
further hereby agrees to indemnify Lessee against any loss or damage Lessee may
incur as a result of any breach of such representation and warranty.
30.2 ATTORNMENT. Subject to the non-disturbance provisions of Paragraph
30.3, Lessee agrees to attorn to a Lender or any other party who acquires
ownership of the Premises by reason of a foreclosure of a Security Device
(including but not limited to the exercise of a power of sale under any
instrument) , and that in the event of such foreclosure, such new owner shall
not: (i) be liable for any act or omission of any prior lessor or with respect
to events, occurring prior to acquisition of ownership, (ii) be subject to any
offsets or defenses which Lessee might have against any prior lessor, or (iii)
be bound by prepayment of more than one month's rent. Furthermore, if Lessor's
interest in the Premises is transferred (except in a sale-leaseback financing
transaction), or if any lease in a sale-leaseback transaction wherein Lessor is
the lessee is
terminated, Lessee shall attorn to and recognize such purchaser, assignee,
mortgagee or trustee as Lessor under this Lease. If Lessor transfers its
interest in the Premises, Lessor's Building or Lessor's Site (except a
sale-leaseback financing transaction), Lessor thereupon and without further act
by either party shall be released from all liability and obligations derived
under this Lease arising out of any act, occurrence or omission relating to the
Premises or its Lease occurring after the consummation of such transfer. Lessee
shall have no right to terminate this Lease, xxxxx rent or deduct from or
set-off or counterclaim against Rent because of any such transfer (including any
sale-leaseback) by Lessor, its successors or assigns.
30.3 NON-DISTURBANCE. With respect to Security Devices entered into by
Lessor after the execution of this lease, Lessee's subordination of this Lease
shall be subject to receiving assurance (a "non-disturbance agreement") from the
Lender that Lessee's possession and this Lease, including any options to extend
the term hereof, will not be disturbed so long as Lessee is not in Breach hereof
and attorns to the record owner of the Premises.
30.4 SELF-EXECUTING. The agreements contained in this Paragraph 30 shall
be effective without the execution of any further documents; provided, however
that upon written request from Lessor or a Lender in connection with a sale,
financing or refinancing of Premises, Lessee and Lessor shall execute such
further writings as may be reasonably required to separately document any such
subordination or non subordination, attornment and/or non-disturbance agreement
as is provided for herein.
31. ATTORNEYS' FEES. If any Party brings an action or proceeding to
enforce the terms hereof or declare rights hereunder, the Prevailing Party (as
hereafter defined) in any such proceeding, action, or appeal thereon, shall be
entitled to reasonable attorneys' fees. Such fees may be awarded in the same
suit or recovered in a separate suit, whether or not such action or proceeding
is pursued to decision or judgment. The term "Prevailing Party" shall include,
without limitation, a Party who substantially obtains or defeats the relief
sought, as the case may be, whether by compromise, settlement, judgment, or the
abandonment by the other Party of its claim or defense. The attorneys' fee award
shall not be computed in accordance with any court fee schedule, but shall be
such as to fully reimburse all attorneys' fees reasonably insured. Lessor shall
be entitled to attorneys' fees, costs and expenses insured m preparation and
service of notices of Default and consultations in connection therewith, whether
or not a legal action is subsequently commenced in connection with such Default
or resulting Breach.
32. LESSOR'S ACCESS - SHOWING PREMISES; REPAIRS. Lessor and Lessor's
agents shall have the right to ester the Premises at any time, in the case of an
emergency, and otherwise at reasonable times upon prior written notice to Lessee
for the purpose of showing the same to prospective purchasers, lenders, or
lessees, and making such alterations, repairs, improvements or additions to the
Premises or to the Building, as Lessor may reasonably deem necessary. Lessor may
at any time place on or about the Premises or Building any ordinary "For Sale"
signs and Lessor may at any time during the last one hundred eighty (180) days
of the term hereof place on or about Premises any ordinary "For Lease" signs.
All such activities of Lessor shall be without abatement of rent or liability to
Lessee. Anything in the foregoing to the contrary notwithstanding, except in the
case of a bona fide emergency, Lessor shall have no right to enter the Premises
for any purpose whatsoever during the hours of 11:00 a.m. to 3:00 p.m. and the
hours of 6:00 p.m. to 11:00 p.m.
33. AUCTIONS. Lessee shall not conduct nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first having
obtained Lessor's prior written consent. Notwithstanding anything to the
contrary in this Lease, Lessor shall not be obligated to exercise any standard
of reasonableness in determining whether to grant such consent.
34. SIGNS. Lessee shall not place any sign upon the exterior of the
Premises or the Building, except that Lessee may, with Lessor's prior written
consent, install on the exterior of the Building (but not on the roof) signage
indicating the name of Lessee's business so long as such signs are in a location
designated by Lessor, approved by Lessor, and comply with Applicable
Requirements and the signage criteria established for the Project by Lessor.
Lessor's consent to the installation of any such sign shall not be unreasonably
withheld or delayed. The installation of any sign on the Premises by or for
Lessee shall be subject to the provisions of Paragraph 7 (Maintenance, Repairs,
Utility Installations, Trade Fixtures and Alterations), and Lessee shall be
solely responsible for the maintenance and upkeep of said signage. Unless
otherwise expressly agreed herein, Lessor reserves all rights to the use of the
roof of the Building, and the right to install advertising signs on the
Building, including the root which do not unreasonably interfere with the
conduct of Lessee's business. Lessor shall be entitled to all revenues from such
advertising signs.
35. TERMINATION; MERGER. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for Breach
by Lessee, shall automatically terminate any sublease or lesser estate in the
Premises provided, however, Lessor shall, in the event of any such surrender,
termination or cancellation, have the option to continue any one or all of any
existing subtenancies. Lessor's failure within ten (10) days following any such
event to make a written election to the contrary by written notice to the holder
of any such lesser interest, shall constitute Lessor's election to have such
event constitute the termination of such interest.
36. CONSENTS.
(a) Except for Paragraph 33 hereof (Auctions) or as otherwise provided
herein, wherever in this Lease the consent of a Party is required to an act by
or for the other Party, such consent shall not be unreasonably withheld or
delayed. Lessor's actual reasonable costs and expenses ('including but not
limited to architects', attorneys', engineers' and other consultants' fees)
insured in the consideration of, or response to, a request by Lessee for any
Lessor consent pertaining to this Lease or the Premises, ding but not limited to
consents to an assignment or subletting or the presence or use of a Hazardous
Substance shall be paid by Lessee to Lessor upon receipt of an invoice and
supporting documentation therefor. In addition to the deposit described in
Paragraph 12.2(e), Lessor may, as a condition to considering any such request by
Lessee, require that Lessee deposit with Lessor an amount of money (in addition
to the Security Deposit held under Paragraph 5) reasonably calculated by Lessor
to represent the cost Lessor will incur in considering and responding to
Lessee's request. Any unused portion of said deposit shall be refunded to Lessee
without interest. Lessor's consent to any act, assignment of this Lease or
subletting of the Premises by Lessee shall not constitute an acknowledgment that
no Default or Breach by Lessee of this Lease exists, nor shall such consent be
deemed a waiver of any then existing Default or Breach, except as may be
otherwise specifically stated in writing by Lessor at the time of such consent.
(b) All conditions to Lesson's consent authorized by this Lease are
acknowledged by Lessee as being reasonable. The failure to specify herein any
particular condition to Lessor's consent shall not preclude the impositions by
Lessor at the time of consent of such further or other conditions as are then
reasonable with reference to the particular matter for which consent is being
given.
37. GUARANTOR.
37.2 ADDITIONAL OBLIGATIONS OF GUARANTOR. It shall constitute a Default
of the Lessee under this Lease if any such Guarantor fails or refuses, upon
reasonable request by Lessor to give: (a) evidence of the due execution of the
guaranty called for by this Lease, including the authority of the Guarantor (and
of the party signing on Guarantor's behalf) to obligate such Guarantor on said
guaranty, and resolution of its board of directors authorizing the making of
such guaranty together with a certificate of incumbency showing the signatures
of the persons authorized to sign on its behalf, (b) current financial
statements of Guarantor as may from time to time be requested by Lessor, 8 a
Tenancy Statement, or (d) written confirmation that the guaranty is still in
effect.
38. QUIET POSSESSION. Upon payment by Lessee of the rent for the Premises
and the performance of all of the covenants, conditions and provisions on
Lessee's part to be observed and performed under this Lease, Lessee shall have
quiet possession of the Premises for the entire term hereof subject to all of
the provisions of this Lease.
39. OPTIONS.
39.1 DEFINITION. As used in this Lease, the word "Option" has the
following meaning: (a) the right to extend the term of this Lease or to renew
this Lease or to extend or renew any lease that Lessee has on other property of
Lessor, (b) the right of first refusal to lease the Premises or the right of
first offer to lease the Premises or the right of first refusal to lease other
property of Lessor or the right of first offer to lease other property of
Lessor, 8 the right to purchase the Premises, or the right of first refusal to
purchase the Premises, or the right of first offer to purchase the Premises, or
the right to purchase other property of Lessor, or the right of first refusal to
purchase other property of Lessor, or the right of first offer to purchase other
property of Lessor.
39.2 ASSIGNMENT OF OPTIONS. The Options herein granted to Lessee are
assignable only as a part of an assignment of this Lease, and no Option may be
separated from this Lease in any manner, by reservation or otherwise.
39.3 MULTIPLE OPTIONS. In the event that Lessee has any multiple Options
to extend or renew this Lease, a later option cannot be exercised unless the
prior Options to extend or renew this Lease have been validly exercised.
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Lessee shall have no right to exercise an Option, notwithstanding any
provision in the grant of Option to the contrary: (i) during the period
commencing with the giving of any notice of Default under Paragraph 13.1 and
continuing until the noticed Default is cured, or (ii) during the period of time
any monetary obligation due Lessor from Lessee is unpaid (without regard to
whether notice thereof is given Lessee), or (iii) during the time Lessee is in
Breach of this Lease, or (iv) in the event that Lessor has given to Lessee
three (3) or more notices of separate Defaults under Paragraph 13.1 during the
twelve (12) month period immediately preceding the exercise of the Option,
whether or not the Defaults are cured.
(b) The period of time within which an Option may be exercised shall not be
extended or enlarged by reason of Lessee's inability to exercise an Option
because of the provisions of Paragraph 39.4(a)
(c) All rights of Lessee under the provisions of an Option shall terminate
and be of no further force or effect, notwithstanding Lessee's due and timely
exercise of the Option, if, after such exercise and during the term of this
Lease, (i) Lessee fails to pay to Lessor a monetary obligation of Lessee for a
period of thirty (30) days after such obligation becomes due (without any
necessity of Lessor to give notice thereof to Lessee), or (ii) Lessor gives to
Lessee three (3) or more notices of separate Defaults under Paragraph 13.1
during any twelve (12) month period, whether or not the Defaults are cured, or
(iii) if Lessee commits a Breach of this Lease.
40. RULES AND REGULATIONS. Lessee agrees that it will abide by, and keep
and observe all reasonable rules and regulations ("Rules and Regulations") which
Lessor may make from time to time for the management, safety, care, and
cleanliness of the grounds, the parking and unloading of vehicles and the
preservation of good order, as well as for the convenience of other occupants or
tenants of the Building and the Project and their invitees.
41. SECURITY MEASURES. Lessee hereby acknowledges that the rental payable
to Lessor hereunder does not include the cost of guard service or other seer
measures, and that Lessor shall have no obligation whatsoever to provide same.
Lessee assumes all responsibility for the protection of the Premises, Lessee,
its agents and invitees and their property from the acts of third parties.
42. RESERVATIONS. Lessor reserves the right, from time to time, to grant,
without the consent or joinder of Lessee, such easements, rights of way, utility
raceways, amt dedications that Lessor deems necessary, and to cause the
recordation of parcel maps and restrictions, so long as such easements, rights
of way, utility raceways: dedications, maps and restrictions do not unreasonably
interfere with parking as explicitly stated in this Lease, or the use of the
Premises by Lessee. Lessee agrees to sign any documents reasonably requested by
Lessor to effectuate any such easement rights, dedication, map or restrictions.
43. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to
any amount or sum of money to be paid by one Party to the other under the
provisions hereof, the Party against whom the obligation to par the money is
asserted shall have the right to make payment "under protest"and such payment
shall not be regarded as a voluntary payment and there shall survive the right
on the part of said Party to institute suit for recovery of such sum. If it
shall be adjudged that there was no legal obligation on the part of said Party
to pay such sum or any part thereof, said Party shall be entitled to recover
such sum or so much thereof as it was not legally required to pay under the
provisions of this Lease.
44. AUTHORITY. If either Party hereto is a corporation, trust, or general
or limited partnership, each individual executing this Lease on behalf of such
entity represents and warrants that he or she is duly authorized to execute and
deliver this Lease on its behalf. If Lessee is a corporation, trust or
partnership, Lessee shall, within thirty (30) days after request by Lessor,
deliver to Lessor evidence satisfactory to Lessor of such authority.
45. CONFLICT. Any conflict between the printed provisions of this Lease
ail the typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions.
46. OFFER. Preparation of this Lease by either Lessor or Lessee or
Lessor's agent or Lessee's agent and submission of same to Lessee or Lessor
shall not be deemed an offer to lease. This Lease is not intended to be binding
until executed and delivered by all Parties hereto.
47. AMENDMENTS. This Lease may be modified only in writing, signed by the
parties in interest at the time of the modification. The Parties shall amend
this Lease from time to time to reflect any adjustments that are made to the
Base Rent or other rent payable under this Lease. As long as they do not
materially change Lessee's obligations hereunder, Lessee agrees to make such
reasonable non-monetary modifications to this Lease as may be reasonably
required by an institutional insurance company or pension plan Lender in
connection with the obtaining of normal financing or refinancing of the property
of which the Premises are a part.
48. MULTIPLE PARTIES. Except as otherwise expressly provided herein, if
more than one person or entity is named herein as either Lessor or Lessee, the
obligations of such multiple parties shall be the joint and several
responsibility of all persons or entities named herein as such Lessor or Lessee.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
IF THIS LEASE HAS BEEN FILLED IN IT HAS BEEN PREPARED FOR YOUR ATTORNEY'S REVIEW
AND APPROVAL. FURTHER, EXPERTS SHOULD BE CONSULTED TO EVALUATE THE CONDITION OF
THE PROPERTY FOR THE POSSIBLE PRESENCE OF ASBESTOS, UNDERGROUND STORAGE TANKS OR
HAZARDOUS SUBSTANCES. NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE LESSOR
OR ITS CONTRACTORS, AGENTS OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL
EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT
RELATES; THE PARTIES SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN COUNSEL AS
TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
Executed at: Los Angeles Executed at : Los Angeles CA
on: 02/29/96 on: 02/29/96
BY LESSOR: BY LESSEE:
EDDIA TRUST ("Lessor") ASIA PACIFIC CORPORATION ("Lessee")
By: ______________________ By:________________________
Unknown Signature Signature of Xxxxx
Xxxxxxx
Name: Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxx
Title: Trustee Title: President
Address: 000 X. Xxxxx Xxxxxxx: 0000 Xxxxxxx Xxxx. #
(illegible)
B.H. 90210 Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Executed at: Los Angeles CA
on: 02/29/96
BY LESSEE:
XXXXX X. XXXXXXX ("Lessee")
_________________________
Signature (illegible)
Address: 0000 Xxxxxxx Xxxx. #000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (310) 858- (illegible)
ADDENDUM TO THE LEASE DATED FEBRUARY 29,1996
IN ORDER TO SECURE FUNDS FOR IMPROVEMENT TO THE PREMISES PURSUANT TO
SECTION
7.3 (D) OF THE LEASE, PRIOR TO COMMENCEMENT OF ANY CONSTRUCTION AND AFTER
ALL NECESSARY
GOVERNMENTAL APPROVALS HAVE BEEN OBTAINED AND CONSTRUCTION BIDS FOR PROJECT
HAVE
BEEN ACCEPTED, LESSEE SHALL OBTAIN FOR THE BENEFIT OF SECURING PAYMENT TO THE
CONTRACTORS A LETTER OF CREDIT FROM A MAJOR BANK OR OTHER ACCREDITED FINANCIAL
INSTITUTION, OR DEPOSIT CASH THEREIN, IN A AMOUNT SUFFICIENT TO COVER THE
CONSTRUCTION
COSTS OF ANY CONSTRUCTION DONE TO THE PREMISES TO WHICH ANY CONTRACTOR'S OR
MECHANIC'S LIENS COULD ATTACH.
Executed at: Los Angeles Executed at: Los Angeles CA
on: 4/19/96 on: 4/19/96 LESSEE BY
LESSOR: BY LESSEE:
EDDIA TRUST ("Lessor") ASIA PACIFIC CORPORATION
("Lessee")
By: ______________________ By:________________________
Unknown Signature
Signature of Xxxxx Xxxxxxx
Name: Xxxxx (Last name illegible) Name: Xxxxx Xxxxxxx
Title: Trustee Title: President
Address: 000 X. Xxxxx Xx. Address: 0000
Xxxxxxx Xxxx.
X.X. 00000 #000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000 Telephone:
(000) 000-0000
Facsimile: (000) 000-0000 Facsimile:
(000) 000-0000
Executed at: Los Angeles CA
on: 4/19/96
BY LESSEE:
XXXXX X. XXXXXXX ("Lessee")
_________________________
Signature (illegible)
Address: 0000 Xxxxxxx Xxxx. #000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (310) 858- (illegible)
OPTIONS TO EXTEND
(Addendum to Lease)
OPTIONS TO EXTEND entered into by and between EDDIA TRUST ("Lessor") and ASIA
PACIFICCORPORATION and XXXXX X XXXXXXX (collectively "Lessee"), all of whom
shall be sometimes collectively referred to as the "Parties", or individually as
a "Party", with relation to that certain portion of the Building, commonly known
by the street address of 000 XXXXX XXXXX XXXXX, located in the City of Xxxxxxx
Hills, County of Los Angeles, State of California, with zip code of 90210
("Building") described as the former Bistro Restaurant with an approximate size
of 12,000 square feet ("Premises").
A. OPTIONS TO EXTEND. Lessor hereby grants to Lessee the options to extend the
term of this Lease for two additional sixty (60) month periods commencing when
the prior term expires, upon each and all of the following terms and conditions:
(i) Lessee gives to Lessor, and Lessor actually receives on 'a date which
is prior to the
date that the option period would commence (if exercised) by at least six (6)
and not more than
nine (9) months, a written notice of the exercise of the option(s) to extend
this Lease for said
additional term(s), time being of essence. If said notification of the exercise
of said option(s) is
not so given and received, the option(s) shall automatically expire; said
option(s) may only be
exercised consecutively;
(ii) The provisions of paragraph 39, including the provision relating to
default of Lessee set forth in paragraph 39.4 of this Lease are conditions of
these options;
(iii) All of the terms and conditions of this Lease except where
specifically modified by these options shall apply during any option period;
(iv) The Monthly Base Rent for each month of the option period shall be
calculated as follows, using the method indicated below:
I. MARKET RENTAL VALUE ADJUSTMENTS (MRV).
(a) On March 1, 2006 and March 1, 2011 ("MRV Adjustment Dates"), the
Monthly Base Rent payable under paragraph 1.4 of the attached Lease shall
be adjusted to
ninety percent (90%) of the Market Rental Value of the Premises ("MRV"). The MRV
shall be established by the following method:
(1) Four months prior to each MRV Adjustment Date, Lessor and Lessee
shall meet to establish an agreed upon new MRV for the Premises for the
upcoming MRV Adjustment Date. If agreement cannot be reached, then:
(i) Lessor and Lessee shall immediately appoint a mutually
acceptable appraiser or broker to establish the new MRV for the Premises
within the next 30 days, with any associated costs to be split equally
between Lessor and Lessee; or
(ii) Both Lessor and Lessee shall each immediately select and pay
the appraiser or broker of their choice to establish a MRV for the
Premises
within the next 30 days. If, for any reason, either one of said appraisals is
not completed within the next 30 days, then the appraisal that is completed
within said 30 day period shall automatically become the new MRV for the
Premises. If both appraisals are completed within said 30 day period and
the two appraisers cannot agree on a reasonable average MRV, then said
appraisers shall immediately select a third mutually acceptable
appraiser/broker to establish a third MRV within the next 30 days. The
average of the two appraisals closest in value shall then become the new
MRV for the Premises. The costs of the third appraisal shall be split
equally between Lessor and Lessee.
(b) Upon the establishment of the new MRV by the method above, the new
Monthly Base Rent for purposes of paragraph 1.4 of the attached Lease shall be
ninety
percent (90%) of said new MRV.
II. CONSUMER PRICE INDEX ADJUSTMENTS.
(a) Commencing with the second year of each option period through the fifth
year
of each option period, the Monthly Base Rent established by the methods above
shall be
increased annually by a percentage equal to the annual percentage increase for
the prior
calendar year in the Consumer Price Index of the Bureau of Labor Statistics of
the US.
Department of Labor for the Los Angeles Metropolitan Area ("CPI"). In the event
the
compilation and/or publication of the CPI shall be transferred to any other
governmental
department or bureau or agency or shall be discontinued, then the Index most
nearly the
same as the CPI shall be used to make such calculation. In the event that Lessor
and
Lessee cannot agree on such alternative Index, then the matter shall be
submitted for
decision to the American Arbitration Association in accordance with the then
current rules
of said Association, and the decision of the arbitrator(s) shall be binding upon
the Parties.
The cost of said arbitration shall be paid equally by Lessor and Lessee.
B. NOTICES. All notices to be given by the Parties with relation to these
Options shall be given in
the manner prescribed in paragraph 23 of the attached Lease.
The parties hereto have executed these Options at the place and on the
dates specified above their respective signatures.
Executed at: Los Angeles Executed at : Los Angeles CA
on: 02/29/96 on: 02/29/96
BY LESSOR: BY LESSEE:
EDDIA TRUST ("Lessor") ASIA PACIFIC CORPORATION ("Lessee")
By: ______________________ By:________________________
Unknown Signature Signature of Xxxxx
Xxxxxxx
Name: Xxxxx Xxxxxxxxxx Name: Xxxxx Xxxxxxx
Title: Trustee Title: President
Address: 000 X. Xxxxx Xxxxxxx: 0000 Xxxxxxx Xxxx. # 329
B.H. 90210 Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Executed at: Los Angeles CA
on: 02/29/96
BY LESSEE:
XXXXX X. XXXXXXX ("Lessee")
_________________________
Signature (illegible)
Address: 0000 Xxxxxxx Xxxx. #000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (310) 858- 8803
AGREEMENT
FOR GOOD AND VALUABLE CONSIDERATION AND INDUCEMENT FOR EDDIA TRUST
TO ENTER INTO LEASE DATED FEBRUARY 26, 1996, (HEREINAFTER REFERRED TO AS "LEASE"
WITH ASIA PACIFIC
CORPORATION AND XXXXX X. XXXXXXX, AS PERTAINING TO PROPERTY WITHIN 000 XXXXX
XXXXX XXXXX,
XXXXX XXXXXXXX INVESTMENTS, LTD., AND XXXXX X. XXXXXXX, AS AN INDIVIDUAL, HEREBY
PROMISE TO PAY
EDDIA TRUST THE SUM OF $200,000.00, WITHOUT INTEREST, ON SEPTEMBER 1, 1996. IN
FURTHERANCE OF
THE SATISFACTION OF SAID OBLIGATION, NORTH ATLANTIC INVESTMENTS, LTD., UNDER
PROPER AUTHORITY,
PLEDGES AS SECURITY TO EDDIA TRUST 500,000 SHARES OF ADVANCES GAMING TECHNOLOGY,
INC. STOCK,
REPRESENTED BY SHARE CERTIFICATES #1499, #1500, #1501, #1502, AND #1503, WITH
THE UNDERSTANDING
THAT EDDIA TRUST WILL NOT SELL SAID 500,000 SHARES UNLESS THE ABOVE-STATED
$200,000.00 OBLIGATION
IS NOT TENDERED BY NORTH ATLANTIC INVESTMENTS, LTD. AND/OR XXXXX X. XXXXXXX ON
OR BEFORE
SEPTEMBER 1, 1996. SUBSEQUENT TO SEPTEMBER 1, 1996, EDDIA TRUST, AT ITS SOLE AND
EXCLUSIVE
OPTION MAY EITHER KEEP 200,000 SHARES OF ADVANCED GAMING TECHNOLOGY , INC. STOCK
AND RETURN TO
NORTH ATLANTIC INVESTMENTS, LTD. THE REMAINING 300,000 SHARES, AS FULL PAYMENT
OF THE ABOVE-STATED
$200,000.00 OBLIGATION, OR MAY SELL AS MANY AS SAID SHARES, AT THE RATE OF NOT
MORE THAN
$25,000.00 WORTH OF SAID SHARES PER WEEK, AS MAY BE NECESSARY TO SATISFY THE
OBLIGATIONS OF NORTH
ATLANTIC INVESTMENTS, LTD. AND/OR XXXXX X. XXXXXXX AS STATED HEREIN.
IN RETURN, UPON RECEIPT OF THE ABOVE-STATED $200,000.00, EDDIA TRUST WILL ENTER
INTO LEASE
AND ADDITIONALLY APPLY THE $200,000.00 PROCEEDS TO THE SATISFACTION OF RENTAL
LIABILITY OF ASIA
PACIFIC CORPORATION AND XXXXX X. XXXXXXX TO XXXXX TRUST, BEGINNING ON THE 61ST
MONTH OF THE
LEASE AND CONTINUING UNTIL THE $200,000 IS DEPLETED.
THIS AGREEMENT SHALL BE BINDING ON ALL PARTIES HERETO, THEIR HEIRS,
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT CAN ONLY BE MODIFIED OR AMENDED BY A WRITING EXECUTED BY ALL OF
THE PARTIES
HERETO. IN THE EVENT THAT IT SHOULD BECOME NECESSARY FOR ANY PARTY HERETO TO
INITIATE ANY LEGAL
ACTION TO ENFORCE ANY OF THE PROVISIONS OF THIS AGREEMENT, THE PREVAILING PARTY
SHALL BE ENTITLED TO REASONABLE ATTORNEY'S FEES. THIS AGREEMENT WAS NEGOTIATED
BY THE PARTIES HERETO AT ARM'S LENGTH,
WITH EACH PARTY RECEIVING THE ADVICE OF INDEPENDENT LEGAL COUNSEL. IT IS THE
INTENT OF THE PARTIES
HEREIN THAT NO PART OF THIS AGREEMENT BE CONSTRUED AGAINST ANY OF THE PARTIES
HERETO BECAUSE OF THE IDENTITY OF THE DRAFTER.
Executed at: Los Angeles Executed at : Los Angeles CA
on: 02/29/96 on: 03 April 1996
BY: EDDIA TRUST FOR AND ON BEHALF OF:
NORTH ATLANTIC INVESTMENTS, LTD.
By: ______________________ By:_____________________ - Director
Name Printed: Xxxxx Xxxxxxxxxx Name Printed: Xxxxxxx
C.A.-Solomon
Title: Trustee Title: Trust Officer
Address: 000 X. Xxxxx Address: X.X. Xxx 0000
X.X. 00000 G/T, C+CM, BW.I.
Executed at: Los Angeles CA
on: 02/29/96
BY XXXXX X. XXXXXXX
_________________________
Signature (illegible)
Address: 0000 Xxxxxxx Xxxx. #000
Xxx Xxxxxxx, XX 00000
{Advertising}
REPRESENTING
The Bistro Restaurant
000 X. Xxxxx Xxxxx, Xxxxxxx Hills
Approx. 12,000 square feet in the Golden Triangle
{PICTURE OF THE EXTERIOR OF THE PROPERTY}
Rent: $2.00 per square foot Triple Net
Term: 5 years minimum
Parking: 19 spaces on-site, 90 spaces off-site
COMMENTS: -Famous "Bistro" Restaurant
-Two fully-equipped kitchens and bars upstairs and downstairs
-Dancing and Live Entertainment Potential- Call listing agents for details
For Further Information, Please Contact:
Xxxx Xxxxxxx or Xxx Xxxx (000) 000-0000
ELITE PROPERTIES REALTY
Commercial/Investment Services
000 Xxxxx Xxxxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx, 00000
Tel (000) 000-0000 Fax (000) 000-0000
{FLOOR PLAN}
SECOND FLOOR
{DRAFT OF FLOOR PLAN}
CANON DRIVE
Scale 1 7/16" = 19'9"
ELITE PROPERTIES
REALTY____________________________________________________________
Commercial /Investment Services
The Bistro Restaurant
See Attached Floor Plan
All square footages are approximate
First Floor
A = 67 sq. ft.
B = 150 sq. ft.
C = 3,073 sq. ft.
D = 184 sq. ft.
E = 1,747 sq. ft
--------
Sub-total 5,221 sq. ft.
Second Floor
* Excluding office &
elevator & adjacent
stairwell & storage 5,309 sq. ft.
Office, adjacent hall
& stairwell 726 sq. ft.
Basement approx. 22 x 35 = 770 sq. ft.
------
Grand Total 12,026
AMENDMENT TO LEASE
-EXPANSION
THIS AMENDMENT TO LEASE ("Amendment") is dated as of July
31, 1997, by and
between EDDIA TRUST ("Lessor") and ASIA PACIFIC CORPORATION and XXXXX X. XXXXXXX
(together, the "Lessee"), with reference to the following facts:
A. Lessor and Lessee have heretofore entered into that
certain Lease executed on
February 29, 1996 (the "Lease") for the leasing of premises located at 000 Xxxxx
Xxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 (the "Premises"); and
X. Xxxxxx and Lessee desire to amend the Lease to expand
the Premises to include
another portion of the building known by the street address of 000 Xxxxx Xxxxx
Xxxxx, Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000, upon the same terms and conditions of the Lease.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other valuable consideration, receipt of which is hereby
acknowledged, the parties hereby agree that the Lease is hereby amended as
follows:
1. Premises. The first sentence of Section 1.2(a) of the
Lease entitled "Premises" is
hereby replaced with the following:
"Premises" consists of (i) that certain portion of the
Building commonly
known by the street address of 000 Xxxxx Xxxxx
Xxxxx, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000, described as the former Bistro
Restaurant with an
approximate size of 12,000 square feet ("Original
Space"), and (ii) that
certain portion of the Building commonly known by
the street address of
000 Xxxxx Xxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000, described as the
former Financial Triangle office space with an
approximate size of 1,200
square feet ("New Space").
2. Rent. Section 1.4 of the Lease entitled "Monthly
Base Rent" is hereby amended by adding the following language with respect to
the New Space to the end of Section 1.4:
During the first twelve months following the date
Lessee takes occupancy
of the New Space ("New Space Commencement Date"),
the Monthly Base
Rent for the New Space shall be Three Thousand Four Hundred
Dollars
($3,400.00) per month, payable upon the first day
of each calendar month
commencing September 1,1997, and continuing through
and including
June 30, 1998. The rent will be prorated for any
partial month.
Thereafter, for the remainder of the Original Term,
the Monthly Base Rent
of Three Thousand Four Hundred Dollars ($3,400.00)
for the New Space s
shall be increased annually by an amount equal to
the annual percentage
increase for the prior calendar year in the CPI in
accordance with terms
of the Lease. All the monthly gross sales of the
New Space will be added
to the gross receipts of the Original Space in
accordance with the Lease
terms Lessee shall pay 7.5% of said total gross
receipts as provided in
the Lease each month . The Rent payable for the New
Space shall be in
addition to the Rent payable for the Original Space
as provided elsewhere
in this Lease.
3. Proportions Share. The first sentence of Section 1.6
of the Lease entitled
"Lessee's Share of Common Area Operating Expenses" is
hereby replaced with following:
During the Original Term and any option period
exercised by Lessee,
Lessee shall pay to Lessor as additional rent Seventy
percent (70%) of the
Common Area Operating Expenses ("Lessee's Share") in
accordance with Paragraph 4.2.
[NOTE: Sections 4 & 5 (a) are omitted on the
original.]
(b) Bathroom. Lessee agrees that the existing
bathroom in the New Space
shall not be removed. The existing bathroom may be renovated or improved, or
relocated to
another area in the New Space with the prior written consent of Lessor, which
consent shall not
be unreasonably withheld.
6. Incorporation. Except as modified herein, all
other terms and conditions of the Lease shall continue in full force and effect.
LESSOR:
EDDIA TRUST Address: 000 Xxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
By: /s/ Xxxxx Xxxxxxxxxx
Xxxxx Xxxxxxxxxx Telephone: (000) 000-0000
Trustee Facsimile: (000) 000-0000
Date: July 31,1997
LESSEE:
ASIA PACIFIC COMPANY LTD.
Address: 0000 Xxxxxxx Xxxx., #000
Xxx Xxxxxxx,XX 00000
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx Telephone: (000) 000-0000
Chairman Facsimile: (000) 000-0000
Date: July 31,1997
By: /s/ Xxxxx X. Xxxxxxx Address: 0000 Xxxxxxx Xxxx., #000
Xxxxx X. Xxxxxxx Xxx Xxxxxxx,XX 00000
Date : July 31, 1997 Telephone: (000) 000-0000
Facsimile: (000) 000-0000
