EXHIBIT 10.27
STANDARD FORM SUBLEASE (LEGACY)
SUBLEASE AGREEMENT
Basic Sublease Information (Defined Terms)
Effective Date: November 1, 1999
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Master Lease Date: January 16, 1997
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Landlord: AMB Property, L.P.,
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A Delaware Limited Partnership
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Tenant: New Breed Distribution Corp, of California, Inc.,
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a California Corporation
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Tenant's Address: 0000 Xxxxxxxx Xxxxxxx
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Xxxx Xxxxx, XX 00000
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Premises: Improved real property as more particularly described in
the Master Lease, attached hereto as Exhibit B,
consisting of approximately 81,225 rentable square feet.
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Permitted Uses: warehouse distribution and general office uses
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Subtenant: Cost-U-Less, Inc. a Washington Corporation
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Subtenant's Address: 00000 XX - 00xx Xxxxxx
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Xxxxxxxx, XX 00000
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Sublease Premises: That portion of the Premises, as more particularly
described in the Sublease Premises Floor Plan, attached
hereto as Exhibit A, consisting of approximately 81,225
rentable square feet.
Sublease Premises
Address: 0000 Xxxxxxxxx Xxxxxx, Xxx Xxxxxxx, XX
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Building: ______________________________________________
Sublease Term: December 1, 1999 - January 31, 2002
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The Subtenant will occupy the Premises Rent Free for the
month of December, 1999
Sublease
Commencement Date: December 1, 1999
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Expiration Date: January 31, 2002
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Rent Commencement
Date: January 1, 2000
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Base Rent: ($30,865.00) Dollars ($.38c ) per month
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The Tenant is responsible for real estate taxes,
insurance and common area maintenance. The Subtenant is
Adjustments to responsible for increases in real estate taxes,
Base Rent: insurance and common area maintenance on a pro rata
basis over Base Year 1999-2000.
Subtenant's Thirty Thousand Eight Hundred
Security Deposit: Sixty Five and No/100 Dollars ($30,865.00)
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per month
Subtenant's Share: 67%
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Parking Area: None ( ) non-exclusive and non-designated spaces
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Broker: CB Xxxxxxx Xxxxx, INc. for Tenant
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None for Subtenant
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Exhibits: Exhibit A - Sublease Premises Floor Plan
Exhibit B - Master Lease
Exhibit C - Scope of Work
Exhibit D - Hazardous Materials Disclosure Certificate
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THIS SUBLEASE AGREEMENT ("Sublease") is entered as of the Effective Date by
and between Tenant and Subtenant.
THE PARTIES ENTER this Sublease on the basis of the following facts,
understandings and intentions:
A. Tenant is presently a tenant of the Premises in the Building pursuant
to the Master Lease by and between Landlord and Tenant. A copy of the Master
Lease with all exhibits and addenda thereto, is attached hereto as Exhibit B.
B. Tenant desires to sublease the Sublease Premises to Subtenant and
Subtenant desires to sublease the Sublease Premises from Tenant on all of the
terms, covenants and conditions herein after set forth.
C. All of the terms and definitions in the Defined Terms section are
incorporated herein by this reference.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises of
the parties, the parties hereto agree as follows:
1. Sublease. Tenant hereby subleases to Subtenant, and Subtenant hereby
subleases from Tenant the Sublease Premises for the Sublease Term upon all of
the terms, covenants and conditions herein contained. In addition, Tenant shall
lease to Subtenant, and Subtenant shall lease from Tenant, any and all permanent
improvements ("Improvements") on the Sublease Premises constructed and/or owned
by Tenant, upon all of the terms, covenants and conditions herein contained. As
used herein, "Sublease Premises" shall include the Sublease Premises and the
Improvements.
2. Condition of Sublease Premises. Subtenant acknowledges that
Subtenant has conducted Subtenant's own investigation of the Sublease Premises,
the physical condition thereof, including compliance of the Sublease Premises
with all laws and regulations, accessibility and location of utilities,
improvements, existence of hazardous materials, including but not limited to
asbestos, asbestos containing materials, polychlorinated biphenyls (PCB) and
earthquake preparedness, and such other matters which in Subtenant's judgment
affect or influence Subtenant's use and suitability of the Sublease Premises.
Subtenant recognizes that Tenant would not sublease the Sublease Premises except
on an "as is" basis and acknowledges that Tenant has made no representations of
any kind in connection with improvements or physical conditions on, or bearing
on, the use of the Sublease Premises. Subtenant shall rely solely on Subtenant's
own inspection and examination of such items and not on any representations of
Tenant, express or implied. Subtenant further recognizes and agrees that neither
Tenant nor Landlord have made any such representations, and neither Landlord nor
Tenant shall be required to perform any work of construction, alteration or
maintenance of or to the Sublease Premises except as set forth in Exhibit C;
provided, however, Tenant shall deliver the Sublease Premises to Subtenant in
broom clean condition, reasonable wear and tear and casualty excepted.
3. Sublease Subject to Master Lease.
a. Inclusions. Subtenant agrees that all of the terms, conditions
and covenants of this Sublease shall be those stated in the Master Lease except
as excluded in Section 3.b, modified as appropriate so as to make such Articles,
and any Sections contained therein, applicable only to the subleasing hereunder
by Tenant. Whenever the word "Premises" is used in the Master Lease, for
purposes of this Sublease, the words Sublease Premises shall be substituted.
Subtenant shall be subject to, bound by and comply with all of said Articles and
Sections of the Master Lease with respect to the Sublease Premises and shall
satisfy all applicable terms and conditions of the Master Lease for the benefit
of both Tenant and Landlord, it being understood and agreed that wherever in the
Master Lease the word "Tenant" appears, for the purposes of this Sublease, the
word "Subtenant" shall be substituted, and wherever the word "Landlord" appears,
for the purposes of this Sublease, the word "Tenant" shall be substituted; and
that upon the breach of any of said terms, conditions or covenants of the Master
Lease by Subtenant or upon the failure of Subtenant to pay Rent, Additional Rent
or comply with any of the provisions of this Sublease, Tenant may exercise any
and all rights and remedies granted to Landlord by the Master Lease. In the
event of any conflict between this Sublease and the Master Lease, the terms of
the Master Lease shall control.
b. Exclusions. The terms and provisions of the following Sections
and portions of the Master Lease are not incorporated into this Sublease: None.
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4. Rent.
a. Initial Rent. Upon execution hereof, Subtenant shall deliver
the first month's Base Rent to Tenant, to be applied against Subtenant's first
obligation to pay Base Rent hereunder. Subtenant shall pay to Tenant the Base
Rent in advance on the first (1st) day of each month of the Sublease Term,
commencing on the Rent Commencement Date. In the event the last day of the
Sublease Term is not the last day of the calendar month, the Base Rent shall be
appropriately prorated based on a thirty (30) day month. All installments of
Base Rent shall be delivered to Tenant's Address, or at such other place as may
be designated in writing from time to time by Tenant, in lawful money of the
United States and without deduction, abatement or offset for any cause
whatsoever.
b. Net Rental. Subtenant shall be responsible for Subtenant's Share
of all costs and expenses of every kind and nature which may be imposed, at any
time, on Tenant pursuant to the Master Lease (except for Base Rent, as defined
in the Master Lease) including, but not limited to, Subtenant's Share of
Operating Expenses, Tax Expenses, Common Area Utility Costs, Utility Expenses
and Administrative Expenses, all as defined in the Master Lease. As hereinafter
used, "Rent" shall include Base Rent and all additional charges to be paid by
Subtenant pursuant to this Section 4.b.
5. Security Deposit. Subtenant has deposited the Security Deposit with
Tenant. The Security Deposit shall secure Subtenant's obligations under this
Sublease to pay Base Rent and other monetary amounts, to maintain the Sublease
Premises and repair damages thereto, to surrender the Sublease Premises to
Tenant in clean condition and repair upon termination of this Sublease and to
discharge Subtenant's other obligations hereunder. If Subtenant fails to perform
Subtenant's obligations hereunder, Tenant may, but without any obligation to do
so, apply all or any portion of the Security Deposit towards fulfillment of
Subtenant's unperformed obligations. If Tenant does so apply any portion of the
Security Deposit, Subtenant's failure to remit to Tenant a sufficient amount in
cash to restore the Security Deposit to the original amount within five (5) days
after receipt of Tenant's written demand to do so shall constitute a material
default. Upon termination of this Sublease, if Subtenant has then performed all
of Subtenant's obligations hereunder, Tenant shall return the Security Deposit,
or whatever amount remains of the Security Deposit after Tenant applied all or a
portion of the Security Deposit to perform Subtenant's obligations hereunder, to
Subtenant without payment of interest within thirty (30) days of Subtenant's
vacating the subleased premises.
6. Use. The Sublease Premises shall be used for the Permitted Uses, and
for no other purpose or business without the prior written consent of Tenant. In
no event shall the Sublease Premises be used for a purpose or use prohibited by
the Master Lease.
7. Insurance.
a. Additional Insured. All insurance policies required to be carried
by Subtenant, pursuant to the Master Lease, shall contain a provision whereby
Tenant and Landlord are each named as additional insureds under such policies.
An original certificate of insurance shall be delivered to Tenant and Landlord
by Subtenant as a condition precedent to the effectiveness of this Sublease.
b. Waiver of Subrogation. Landlord, by giving Landlord's consent to
this Sublease, and Subtenant hereby mutually waive their respective rights of
recovery against each other for any loss of, or damage to, either parties'
property to the extent that such loss or damage is insured by an insurance
policy required to be in effect at the time of such loss or damage. Each party
shall obtain any special endorsements, if required by its insurer whereby the
insurer waives its rights of subrogation against the other party. This provision
is intended to waive fully, and for the benefit of the parties hereto, any
rights and/or claims which might give rise to a right of subrogation in favor of
any insurance carrier. The coverage obtained by Subtenant pursuant to Section 12
of the Master Lease shall include, without limitation, a waiver of subrogation
endorsement attached to the certificate of insurance. The provisions of this
Section shall not apply in those instances in which such waiver of subrogation
would invalidate such insurance coverage or would cause either party's insurance
coverage to be voided or otherwise uncollectible.
9. Miscellaneous.
a. Entire Agreement. This Sublease contains all of the covenants,
conditions and agreements between the parties concerning the Sublease Premises,
and shall supersede all prior correspondence, agreements and understandings
concerning the Sublease Premises, both oral and written. No addition or
modification of any term or provision of this Sublease shall be effective unless
set forth in writing and signed by both Tenant and Subtenant, and consented to
in writing by Landlord.
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b. Captions. All captions and headings in this Sublease are for
the purposes of reference and convenience and shall not limit or expand the
provisions of this Sublease.
c. Landlord's Consent. This Sublease is conditioned upon
obtaining the written consent of Landlord within 14 calendar (14) calendar days
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after the Effective Date. If Landlord refuses to consent to this Sublease, or if
the ( ) day consent period expires without Landlord having given
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Landlord's consent, this Sublease shall terminate and neither party shall have
any continuing obligation to the other with respect to the Sublease Premises;
provided Tenant shall return the Security Deposit, if previously delivered to
Tenant, to Subtenant.
d. Authority. Each person executing this Sublease on behalf of
a party hereto represents and warrants that he or she is authorized and
empowered to do so and to thereby bind the party on whose behalf he or she is
signing.
e. Attorneys' Fees. In the event either party shall bring any action
or proceeding for damages or for an alleged breach of any provision of this
Sublease to recover rents, or to enforce, protect or establish any right or
remedy hereunder, the prevailing party shall be entitled to recover reasonable
attorneys' fees and court costs as part of such action or proceeding.
f. Brokerage Commission. Tenant and Subtenant each represents
and warrants for the benefit of the other and Landlord that neither Tenant nor
Subtenant have had any dealings with any real estate broker, agent or finder in
connection with the Sublease Premises and/or the negotiation of this Sublease,
except for the Broker(s) (as set forth in the Defined Terms), and that neither
Tenant nor Subtenant knows of any other real estate broker, agent or finder who
is or might be entitled to a real estate brokerage commission or finder's fee in
connection with this Sublease or otherwise based upon contacts between the
claimant and either party. Tenant and Subtenant shall indemnify and hold
harmless the other from and against any and all liabilities or expenses arising
out of claims made for a fee or commission by any real estate broker, agent or
finder in connection with the Sublease Premises and this Sublease other than
Broker(s), if any, resulting from the actions of the indemnifying party.
IN WITNESS WHEREOF, the parties hereto have executed one (1) or more copies
of this Sublease, effective as of the Effective Date.
"Tenant"
New Breed Distribution Corp. of California, Inc.,
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a California Corporation
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By: /s/
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Its: CBO
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By: _________________________________________
Its: ________________________________________
"Subtenant"
Cost-U-Less Inc.,
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a Washington Corporation
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By: /s/
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Its: Vice President Real Estate Construction
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By: _________________________________________
Its: ________________________________________
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Exhibit A
Diagram of Premises
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CONSENT TO SUBLETTING
THIS AGREEMENT (this "Agreement") is made as of the November 1, 1999, by and
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between AMB Properties, L.P., a Delaware Limited Partnership ("Landlord"), New
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Breed Distribution Corporation of California, Inc., a California Corporation
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("Tenant"), and Cost-U-Less, Inc., a Washington Corporation ("Subtenant"), with
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referenced to the following facts:
A. Landlord and Tenant entered into that certain Lease Agreement dated
January 16, 1997, as subsequently amended on ___________________________________
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(collectively the "Master Lease"), relating to certain premises more
particularly described in the Master Lease ("Premises").
B. Tenant and Subtenant have entered into a Sublease Agreement dated as
of November 1, 1999 ("Sublease"). By the terms of the Sublease, Tenant will
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sublease to Subtenant and Subtenant will sublease from Tenant a portion of the
Premises consisting of approximately 81,225 square feet of space located at
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0000 Xxxxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, as more particularly described
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in the Sublease ("Sublease Premises").
C. Tenant has requested that Landlord consent to Tenant subletting the
Sublease Premises to Subtenant pursuant to the Sublease. Landlord has agreed to
consent to the subletting on the following terms and conditions.
NOW, THEREFORE, in consideration of the foregoing, and in consideration of
the mutual agreements and covenants hereinafter set forth, Landlord, Tenant and
Subtenant agree as follows:
1. Definitions. Unless otherwise defined in this Agreement, all
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defined terms used in this Agreement shall have the same meaning and definition
given them in the Master Lease.
2. Master Lease.
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2.1 The Sublease is and shall be at all times subject and
subordinate to all of the terms and conditions of the Master Lease and,
notwithstanding anything to the contrary contained in the Sublease, Subtenant
agrees to perform all of the covenants of Tenant contained in the Master Lease
insofar as the same relate to the Sublease Premises, provided that Subtenant
shall not be obligated to pay rent, operating expenses or other charges in
excess of the amounts specified in the Sublease. In case of any conflict between
the provisions of the Master Lease and the provisions of the Sublease, as
between Tenant and Landlord, the provisions of the Master Lease shall prevail
unaffected by the Sublease. Subtenant shall not violate any of the terms and
conditions of the Master Lease to the extent applicable to the use and occupancy
of the Sublease Premises. Any breach of the Master Lease by Tenant or any breach
of the Sublease or Master Lease by Subtenant which results in a breach of the
Master Lease shall entitle Landlord to all the rights and remedies provided in
the Master Lease.
2.2 Subtenant acknowledges and agrees that the term of the
Sublease shall automatically terminate upon the termination of the Master Lease
for any reason whatsoever, including, without limitation, the termination of the
Master Lease prior to the expiration of the term thereof pursuant to a written
agreement by and between Landlord and Tenant. Notwithstanding any provision to
the contrary in the Sublease or in any other agreement, Subtenant acknowledges
that it shall have no right and there shall not be vested in Subtenant any right
to exercise rights of first refusal, options, or other similar preferential
rights, if any, given to Tenant under the Master Lease.
2.3 Tenant represents and warrants to Landlord that (a) attached
to this Agreement as Exhibit B is a true and correct copy of the Master Lease,
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and there exist no amendments, modifications, or extensions of or to the Master
Lease except as specified herein, and the Master Lease is now in full force and
effect; and (b) to Tenant's actual knowledge, there exist no defenses or offsets
to enforcement of the Master Lease by Landlord or Tenant. To Tenant's actual
knowledge, (i) Landlord is not in default in the performance of the Master
Lease, (ii) Landlord has not committed any breach thereof, and (iii) no event
has occurred which, with the passage of time, or the giving of notice, or both,
would constitute a default or breach by Landlord.
2.4 Tenant and Subtenant represent and warrant to Landlord that
there are no additional payments of rent or consideration of any type payable by
Subtenant to Tenant with regard to the Sublease Premises other than as disclosed
in the Sublease, a true and complete copy of which is attached hereto as Exhibit
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A and incorporated herein by this reference.
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3. Consent of Landlord. Landlord hereby consents to the subletting of
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the Sublease Premises to Subtenant pursuant to the terms of the Sublease.
Landlord's consent shall not release or discharge Tenant of any of its
obligations under the Master Lease or release, discharge or alter the primary
liability of Tenant to pay rent and all other sums due under the Master Lease
and to perform
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and comply with all other obligations of Tenant under the Master Lease. As
between Landlord and Tenant, the Sublease shall not alter, amend or otherwise
modify any provisions of the Master Lease. Landlord shall have no obligations to
any party in connection with the Sublease Premises other than those obligations
set forth in the Master Lease. Landlord shall not be bound or estopped in any
way by the provisions of the Sublease.
4. Assignment of Rent.
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4.1 Subject to the terms of Section 4.2, Tenant hereby absolutely
and irrevocably assigns and transfers to Landlord Tenant's rights under the
Sublease to all rentals and other sums due Tenant under the Sublease.
4.2 Landlord agrees that until a default shall occur in the
performance of Tenant's obligations under the Master Lease, Tenant shall have a
license to receive, collect and enjoy the rentals and other sums due Tenant
under the Sublease except as otherwise provided under the Master Lease. However,
said license shall automatically terminate without notice to Tenant upon the
occurrence of a default by Tenant in the performance of its obligations under
the Master Lease and Landlord may thereafter, at its option, receive and
collect, directly from Subtenant, all rentals and other sums due or to be due
Tenant under the Sublease. Landlord shall not, by reason of the assignment of
all rentals and other sums due Tenant under the Sublease nor by reason of the
collection of said rentals or other sums from the Subtenant, (a) be bound by or
become a party to the Sublease, (b) be deemed to have accepted the attornment of
Subtenant, or (c) be deemed liable to Subtenant for any failure of Tenant to
perform and comply with Tenant's obligations under the Sublease. Tenant hereby
irrevocably authorizes and directs Subtenant, upon receipt by Subtenant of any
written notice from Landlord stating that a default exists in the performance of
Tenant's obligations under the Master Lease, to pay directly to Landlord the
rents and other income due and to become due under the Sublease. Tenant agrees
that Subtenant shall have the right to rely solely upon such notice from
Landlord notwithstanding any conflicting demand by Tenant or any other party.
Tenant hereby agrees to indemnify, defend and hold Subtenant harmless from any
and all claims, losses, liabilities, judgments, costs, demands, causes of action
and expenses (including, without limitation, attorneys' fees and consultants'
fees) (collectively, "Claims") which Subtenant may incur in relying on any
written notice from Landlord and/or paying rent and other sums due under the
Sublease directly to Landlord in accordance with this Section 4.2.
5. Indemnification. Tenant shall indemnify and hold harmless Landlord
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and agents, employees, partners, shareholders, directors, invitees, and
independent contractors (collectively "Agents") of Landlord, against and from
any and all Claims arising from or related to the following: (a) Subtenant's use
of the Sublease Premises or any activity done, permitted or suffered by
Subtenant in, on or about the Sublease Premises, the Building, or the Property;
(b) the Sublease and any act or omission by Subtenant or its Agents in
connection with or related to the Sublease, the Sublease Premises, the Building,
or the Property; (c) any Hazardous Material used, stored, released, disposed,
generated, or transported by Subtenant or its Agents in, on, or about the
Sublease Premises, including without limitation, any Claims arising from or
related to any Hazardous Material investigations, monitoring, cleanup or other
remedial action; and (d) any action or proceeding brought on account of any
matter referred to in items (a), (b), and/or (c). If any action or proceeding is
brought against Landlord by reason of any such Claims, upon notice from
Landlord, Tenant shall defend the same at Tenant's expense with counsel
reasonably satisfactory to Landlord. The obligations of Tenant under this
Section 5.1 shall survive any termination of the Sublease or the Master Lease.
6. Assignment and Sub-Subletting. Subtenant shall not voluntarily or
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by operation of law, (1) mortgage, pledge, hypothecate or encumber the Sublease
or any interest therein, (2) assign or transfer the Sublease or any interest
therein, sub-sublet the Sublease Premises or any part thereof, or any right or
privilege appurtenant thereto, or allow any other person (the employees, agents
and invitees or Subtenant excepted) to occupy or use the Sublease Premises, or
any portion thereof, without first obtaining the written consent of Landlord.
7. Miscellaneous Provisions.
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7.1 Tenant shall pay to Landlord, upon Landlord's demand, the fee
specified in the Master Lease, or if no fee is so specified, Landlord's
reasonable fees incurred in connection with Landlord's review and processing of
documents relating to the subletting of the Sublease Premises to Subtenant.
7.2 Landlord shall use reasonable efforts to notify Subtenant of
any default by Tenant under the Master Lease of which Landlord has actual
knowledge and which is not cured within any applicable notice and cure period
provided in the Master Lease; provided, however, that the failure of Landlord to
provide such notice shall not give rise to liability on the part of Landlord or
otherwise alter or modify the rights and obligations of the parties hereunder.
The giving of any such notice to Subtenant shall not vest in Subtenant any
rights or remedies except as otherwise expressly set forth herein.
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7.3 Tenant and Subtenant agree not to amend, modify, supplement,
or otherwise change in any respect the Sublease except with the prior written
consent of Landlord, which consent shall not be unreasonably withheld. This
Agreement shall not create in Subtenant, as a third party beneficiary or
otherwise, any rights except as set forth in this Agreement.
7.4 All notices which Landlord or Subtenant desire to give or
provide to the other shall be personally delivered or sent by registered or
certified U.S. mail, postage prepaid, return receipt requested, and, if to
Landlord, shall be sent to the address set forth immediately below Landlord's
signature hereto, and, if to Subtenant shall be sent to the Sublease Premises.
Each party shall have the right to change its address for notices by giving
written notice thereof to the other party in accordance with this Section 7.4.
Any notice given in accordance with this Section 7.4 shall be deemed delivered
upon actual receipt (or attempted delivery if delivery is refused). Copies of
any notices of default sent by (i) Tenant under the Master Lease or Sublease, as
applicable, shall be delivered to Landlord and Subtenant at the addresses for
each set forth in the Master Lease and Sublease, as applicable, at the same time
such notices are sent to Landlord or Subtenant, as applicable, and (ii)
Subtenant to Tenant under the Sublease shall be delivered by Subtenant to
Landlord at the address set forth in the Master Lease at the same time such
notices are sent to Tenant as set forth in the Sublease.
7.5 This Agreement, together with the provisions of the Master
Lease relating to subletting or assigning, contains the entire agreement between
the parties hereto regarding the matters which are the subject of this
Agreement. In the event of a permitted assignment under the Master Lease by
Landlord or Tenant of its interest in the Master Lease, then the assignee of
either Landlord of Tenant, as appropriate, shall automatically be deemed to be
the assignee of Landlord or Tenant under this Agreement, and such assignee shall
automatically assume the obligations of Landlord or Tenant under this Agreement.
No other assignments of this Agreement shall be permitted, except with the
written consent of all parties hereto. Any attempted assignment in violation of
this section shall be void. The terms, covenants and conditions of this
Agreement shall apply to and bind the heirs, successors, the executors and
administrators and permitted assigns of all the parties hereto. The parties
acknowledge and agree that no rule or construction, to the effect that any
ambiguities are to be resolved against the drafting party, shall be employed in
the interpretation of this Agreement. If any provision of this Agreement is
determined to be illegal or unenforceable, such determination shall not affect
any other provisions of this Agreement, and all such other provisions shall
remain in full force and effect.
7.6 If either party hereto fails to perform any of its
obligations under this Agreement or if any dispute arises between the parties
hereto concerning the meaning or interpretation of any provision of this
Agreement, then the defaulting party or the party not prevailing in such
dispute, as the case may be, shall pay any and all costs and expenses incurred
by the other party on account of such default and/or in enforcing or
establishing its rights hereunder, including, without limitation, court costs
and reasonable attorneys' fees and disbursements. Any such attorneys' fees and
other expenses incurred by either party in enforcing a judgment in its favor
under this Agreement shall be recoverable separately from and in addition to any
other amount included in such judgment, and such attorneys' fees obligation is
intended to be severable from the other provisions of this Agreement and to
survive and not be merged into any such judgment.
7.7 This Agreement may be executed in any number of counterparts,
provided each of the parties hereto executes at least one counterpart; each such
counterpart hereof shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
7.8 Tenant and Subtenant covenant and agree that under no
circumstances shall Landlord be liable for any brokerage commission or other
charge or expense in connection with the Sublease or this Agreement and Tenant
and Subtenant agree to protect, defend, indemnify and hold Landlord harmless
from the same and from any cost or expense (including but not limited to
attorneys' fees) incurred by Landlord in resisting any claim for any such
brokerage commission.
7.9 This Agreement shall in no manner be construed as limiting
Landlord's ability to exercise its rights to recapture any portion of the
Premises, as set forth in the Master Lease, in the event of a proposed future
sublease or assignment of such portion of the Premises.
7.10 The terms and provisions of this Agreement shall be construed
in accordance with and governed by the laws of the State of California.
7.11 Tenant and Subtenant agree that the liability of Landlord
hereunder and any recourse by Tenant or Subtenant against Landlord shall be
subject to the limitations on liability set forth in the Master Lease. In
addition, neither Landlord, nor any of its constituent members, partners,
subpartners, or agents, shall have any personal liability, and Tenant and
Subtenant each hereby expressly waives and releases such personal liability on
behalf of itself and all persons claiming by, through or under Tenant and/or
Subtenant.
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7.12 Tenant and Subtenant shall be jointly and severally liable
for all bills rendered by Landlord for charges incurred by or imposed upon
Subtenant which arise during the term of the Sublease for services rendered and
materials supplied to the Sublease Premises pursuant to the Master Lease,
Sublease and/or this Agreement.
7.13 The voluntary or other surrender of the Master Lease by
Tenant, or a mutual cancellation, termination or expiration thereof, shall not
work as a merger, and shall, at the option of Landlord, terminate all or any
existing subleases or subtenancies, or may, at the option of Landlord, operate
as an assignment to Landlord of any or all such subleases or subtenancies.
7.14 As a condition precedent to the effectiveness of this
Agreement, Subtenant shall have delivered to Landlord a fully complete and
executed Hazardous Materials Disclosure Statement in the form attached hereto as
Exhibit D and incorporated herein by reference.
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IN WITNESS WHEREOF, Landlord, Tenant and Subtenant have executed this
Agreement as of' the day and year first hereinabove written.
Landlord:
AMB Property, L.P.,
a Delaware Limited Partnership
By: AMB Property Corporation
a Maryland Corporation, its General Partner
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Its: Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Executed at: SF, CA
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on: 12/2/99
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Landlord's address:
000 Xxxxxxxxxx Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxxxxxxx, XX 00000
With a copy to:
Legacy Partners Commercial, Inc.
000 Xxxxxxx Xxxxxx Xxxxx/0/xx/ Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxxx/Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Subtenant: Tenant:
------------------------------------------- ---------------------------------
Cost-U-Less, Inc., a Washington Corporation New Breed Distribution Corp. of
California, Inc,. a California
Corp.
------------------------------------------- ---------------------------------
By: /s/ By: /s/
------------------------------ ------------------------
Its: Vice President Real Estate/
Construction Its: CPU
------------------------------ -----------------------
Date: 11/16/99 Date: ______________________
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