EXHIBIT 10.6
LEASE
THIS LEASE AGREEMENT is entered into effective February 1, 2002 at
Oceanside, California, by and between WHMF, A California Corporation hereinafter
referred to as "WHMF", and XXXXXX XXXXXX, hereinafter referred to as "XXXXXX
XXXXXX".
WHEREAS, it is the desire of WHMF to lease to XXXXXX XXXXXX that
portion of the premises commonly known as 0000 X. Xxxxxxx Xxxxxx in the City of
Oceanside consisting of approximately 18,100 square feet and depicted in Exhibit
A, the "Premises" attached hereto; and
WHEREAS, it is the desire of XXXXXX XXXXXX to hire said space from WHMF
and operate a clothing storage facility.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. Premises. WHMF hereby leases to XXXXXX XXXXXX, and XXXXXX XXXXXX
hereby hires from WHMF, for the term, at the rental and upon the conditions
hereinafter set forth, the Premises hereinbefore described.
2. Term.
2.1. The term of this Lease shall be for a period of fifteen (15)
months, commencing on February 1, 2002 and ending April 30, 2003, unless
extended or sooner terminated as provided in this Lease.
2.2. Provided that XXXXXX XXXXXX is not in default under any
provision of this Lease, XXXXXX XXXXXX shall have the option to extend the term
on all the provisions contained in this lease for one additional three year
period ("extended term") following expiration of the initial term, by giving
notice of exercise of the option ("option notice") to WHMF at least six months
but not more than one year before the expiration of the term. Should XXXXXX
XXXXXX be in default, or not give the option notice within the time parameters
set forth in this sub-paragraph, the option notice shall be totally ineffective,
further, should XXXXXX XXXXXX be in default on the date the extended term is to
commence, the
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extended term shall not commence and this lease shall expire at the end of the
initial term as extended by any prior properly exercised options.
3. Possession. WHMF hereby authorizes XXXXXX XXXXXX to occupy the
premises and obtain possession thereof on the commencement date of this lease.
At all times that XXXXXX XXXXXX is in possession of the premises, XXXXXX XXXXXX
shall comply with all terms of this lease and shall, upon entering into
possession provide to WHMF proof of insurance of the type and with the limits
hereinafter set forth. Failure to provide such proof of insurance shall
constitute a default under this lease.
4. Rent.
4.1. Upon execution of the lease XXXXXX XXXXXX shall pay to WHMF
the sum of Six Thousand Two Hundred Seventy and no/100 Dollars ($6,270.00) which
shall apply to the rent due February 1, and March 1, 2002. During the remainder
of the initial term of this lease, XXXXXX XXXXXX shall pay minimum monthly rent
in the amount of Three Thousand One Hundred Thirty Five and no/100 Dollars
($3,135.00), commencing April 1, 2002 and continuing thereafter on the first day
of each month thereafter during the term of this lease.
4.2. XXXXXX XXXXXX shall deposit with WHMF an additional sum of
Six Thousand Two Hundred Seventy and no/100 Dollars ($6,270.00) to secure XXXXXX
XXXXXX'x faithful performance of the terms of this lease. This deposit shall not
bear interest and WHMF is hereby authorized, but not obligated, to pay therefrom
any amounts necessary to cure any default by XXXXXX XXXXXX. Should WHMF use
these funds to cure any default, XXXXXX XXXXXX shall, within 3 days pay to WHMF
sufficient funds to maintain the deposit at Six Thousand Two Hundred Seventy and
no/100 Dollars ($6,270.00). Should XXXXXX XXXXXX exercise its option to extend
this lease, it shall deposit an additional amount to bring the total deposit to
an amount equal to two month's rent, but in no event less than Eight Thousand
and no/100 Dollars.
4.3. XXXXXX XXXXXX shall pay said rent to WHMF, or to such other
person as WHMF may designate, at the address to which notices from WHMF are
given or to such other places as WHMF from time to time may designate in
writing.
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4.4. The rent for the second and subsequent years of the option
period shall be the sum of Forty Eight Thousand and no/100 Dollars ($48,000.00)
increased by the percentage increase in the Consumer Price Index, Los
Angeles-Riverside-Orange Co. for September 2002 (1982-84=100) over the same
index for September 2001, which index is agreed to be 178.3. The rent shall be
increased annually thereafter using the same Index, September 2001, as the base
figure. In no event shall the rent for any month be less than Four Thousand and
no/100 Dollars ($4,000.00).
5. Use of Premises. XXXXXX XXXXXX shall use said Premises solely for
storage, embellishment and distribution of finished clothing products. No other
use of said Premises than that specified herein will be permitted without first
obtaining the express written consent of WHMF.
6. Alterations. XXXXXX XXXXXX shall make no alterations to the
Premises, or any part thereof, in excess of $5,000.00 without first obtaining
the written consent of WHMF. All alterations, additions or improvements, whether
or not they require the consent of the WHMF shall be made pursuant to permit and
comply with all codes and regulations and shall be surrendered with the Premises
upon the termination of this Lease unless, prior to such termination, WHMF gives
XXXXXX XXXXXX written notice to remove some or all thereof, in which case XXXXXX
XXXXXX shall cause the items so designated to be removed and the Premises to be
restored to their condition prior to such alteration, addition or improvement,
reasonable use and wear excepted, at the sole expense of the XXXXXX XXXXXX.
7. Assignment and Subletting. XXXXXX XXXXXX shall not assign or sublet
this Lease, or any interest therein, nor sublet the leased Premises or any part
thereof, or any right or privilege appurtenant thereto, without first obtaining
the written consent of WHMF, which consent shall not be unreasonably withheld.
Either (1) the appointment of a receiver to take possession of all or
substantially all of the assets of XXXXXX XXXXXX upon the Premises, or (2) a
general assignment by XXXXXX XXXXXX for the benefit of creditors, or (3) any
action taken or suffered by XXXXXX XXXXXX under any insolvency or bankruptcy
proceedings may be treated as a breach of the lease by the XXXXXX XXXXXX at the
WHMF's election.
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8. Waste. XXXXXX XXXXXX shall not commit or permit to be committed any
waste to said Premises by XXXXXX XXXXXX or anyone else during the term hereof.
9. Taxes. XXXXXX XXXXXX shall pay, before delinquency, any and all
taxes, assessments, charges, and demands levied upon or against the business of
the XXXXXX XXXXXX conducted upon the Premises, together with the taxes upon all
personal property of the XXXXXX XXXXXX used in or upon the leased Premises.
10. Utilities. XXXXXX XXXXXX shall pay, before delinquency, all charges
for heat, gas, electricity, telephone, water and any and all other utilities
used upon the Premises through the term of this Lease, including any connection
fees. XXXXXX XXXXXX shall provide to WHMF proof of payment of utilities upon
request by WHMF. Failure to pay utilities or to provide proof of payment shall
constitute a default under this lease.
11. Default. Should XXXXXX XXXXXX fail to perform or default in any of
the covenants or conditions contained herein on the part of XXXXXX XXXXXX to be
kept and performed, WHMF shall have the remedies herein below specified. These
remedies are not exclusive; they are cumulative in addition to any remedies now
or hereafter allowed by law.
11.1. WHMF may terminate XXXXXX XXXXXX'x right to possession of
the Premises at any time. No act by WHMF, other than giving notice to XXXXXX
XXXXXX, shall terminate this Lease. Acts of maintenance, efforts to relet the
Premises, or the appointment of a receiver on WHMF's initiative to protect
WHMF's interest under this Lease shall not constitute a termination of XXXXXX
XXXXXX'x right to possession. On termination, WHMF has the right to recover from
XXXXXX XXXXXX:
a. The worth, at the time of the award, of the unpaid rent
that has been earned at the time of termination of this Lease;
b. The worth, at the time of the award of the amount by which
the unpaid rent that would have been earned after the date of termination of
this Lease until the time of award exceeds the amount of the loss of rent that
XXXXXX
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XXXXXX proves could have been reasonable avoided;
c. The worth, at the time of the award, of the amount by which
the unpaid rent for the balance of the term after the time of award exceeds the
amount of the loss of rent that XXXXXX XXXXXX proves could have been reasonably
avoided; and
d. Any other amount, and court costs, necessary to compensate
WHMF for all detriment proximately caused by XXXXXX XXXXXX'x default.
"The worth at the time of the award", as used in subparagraphs a. and
b. of this paragraph, is to be computed by allowing interest at the maximum rate
allowed by law and "the worth, at the time of the award", as referred to in
subparagraph c. of this paragraph, is to be computed by discounting the amount
at the discount rate of the Federal Reserve Bank of San Francisco on the
twenty-fifth (25th) day of the month immediately preceding the default.
12. Attorney's Fees. In the event that either party hereto shall
commence any legal action or proceedings, including any action for declaratory
relief, against the other by reason of the other to perform or keep any term,
covenant or condition of this Lease by it to be performed or kept, the party
prevailing in said action or proceeding shall be entitled to recover, in
addition to its court costs, reasonable attorney's fees to be fixed by the
court, and such recovery shall include court costs and attorney's fees on
appeal, if any. As used herein, "the prevailing party" means the party in whose
favor final judgment is rendered.
It is further agreed that XXXXXX XXXXXX shall pay to WHMF, as
additional rent, reasonable attorney's fees and other expenses incurred by WHMF,
if necessary, to enforce WHMF's rights hereunder or to collect said rent, even
though such action does not result in the commencement of a legal action or
proceeding.
13. Destruction of Building. Should the building in which the Premises
are situated be damaged or destroyed by fire, earthquake, or other catastrophe,
without the fault of XXXXXX XXXXXX, or XXXXXX XXXXXX'x agents or employees, then
this lease shall terminate.
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14. Maintenance of Premises. XXXXXX XXXXXX shall, at its sole cost and
expense, and at all times during the term of this Lease, keep and maintain said
Premises, exterior and every part thereof, including all plumbing facilities,
air conditioning, heating, and similar mechanical devices, and plate glass
windows or any glazing, except exterior walls not made of glass, and roofs, in
good order and repair, and in a safe, clean, sanitary, orderly and attractive
condition, and shall, upon expiration or earlier termination of this Lease,
restore and surrender the Premises to WHMF in the same condition as when
received, except for use and wear and except as otherwise provided in Paragraph
6 above.
15. Other Tenants. XXXXXX XXXXXX shall not commit, or suffer to be
committed, nuisance upon the Premises, or any other act of thing which may
disturb the quiet enjoyment or reasonable use of any other tenant in the
building in which the Premises are located. WHMF shall have the right, at all
reasonable working hours, to inspect the Premises.
16. Acceptance of Premises in Present Condition. XXXXXX XXXXXX accepts
the Premises "AS IS" in its present condition and without any representation or
warranty by WHMF as to the condition of the Premises or as to the use or
occupancy which may be made thereof.
17. Taking by Eminent Domain. In case the whole of the leased Premises
are taken by right of eminent domain or other authority of law during the period
of this Lease, or any extension thereof, this Lease shall terminate.
18. Covenant to Save Harmless. XXXXXX XXXXXX covenants and agrees, at
all times during the term of this Lease or extension thereof, to save free and
harmless of or from each and every claim or demand at any time made or asserted
or claimed, by or on behalf of any person or persons against WHMF, arising out
of or resulting from the use and occupancy of the leased Premises by XXXXXX
XXXXXX, XXXXXX XXXXXX'X agents or servants.
Throughout the term, at XXXXXX XXXXXX'x sole cost and expense, XXXXXX
XXXXXX shall keep or cause to be kept in force, for the mutual benefit of WHMF
and XXXXXX XXXXXX, comprehensive broad form general public liability insurance
against claims and liability for personal injury, death or property damage
arising from the use, occupancy or disuse of
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the Premises, improvements or adjoining areas or ways, providing protection of
at least One Million Dollars ($1,000,000.00) for bodily injury or death to any
one person, and at least One Million Dollars ($1,000,000.00) for property
damage.
All insurance required by express provisions of this Lease shall be
carried only in responsible insurance companies licensed to do business in the
State of California. All such policies shall be nonassessable and shall contain
language, to the extent obtainable, to the effect that (1) any loss shall be
payable notwithstanding any act or negligence of WHMF that might otherwise
result in a forfeiture of the insurance, (2) the insurer waives the right of
subrogation against WHMF and against WHMF's agents and representatives, (3) the
policies are primary and noncontributing with any insurance that may be carried
by WHMF, and (4) they cannot be canceled or materially changed expect after
thirty (30) days' notice by the insurer to WHMF or WHMF's designated
representative. XXXXXX XXXXXX shall furnish WHMF with copies of all such
policies promptly on receipt of them, or with certificates evidencing the
insurance. Before commencement of the Lease, XXXXXX XXXXXX shall furnish WHMF
with binders representing all insurance required by this Lease. At the
expiration of the term, WHMF shall reimburse XXXXXX XXXXXX, and XXXXXX XXXXXX
shall assign all XXXXXX XXXXXX'x right, title and interest in that insurance to
WHMF. XXXXXX XXXXXX may effect, for its own account, any insurance not required
under this Lease. XXXXXX XXXXXX may provide, by blanket insurance covering the
Premises and any other location or locations, any insurance required or
permitted under this Lease, provided it is acceptable to all mortgagees.
XXXXXX XXXXXX shall deliver to WHMF, in the manner required for
notices, copies of certificates of all insurance policies required by this
Lease, together with evidence satisfactory to WHMF of payment required for
procurement and maintenance of the policy.
If XXXXXX XXXXXX fails or refuses to procure or to maintain insurance
as required by this Lease or fails or refuses to furnish WHMF with required
proof that the insurance has been procured and is in force and paid for, WHMF
shall have the right, at WHMF's election and on fifteen (15) days' notice, to
procure and maintain such insurance. The premiums paid by WHMF shall be treated
as additional rent due from
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XXXXXX XXXXXX with interest at the maximum rate allowed by law, to be paid on
the first (1st) day of the month following the date on which the premiums were
paid. WHMF shall give prompt notice of the payment of such premiums, stating the
amounts paid and the names of the insurer or insurers, and interest shall run
from the date of the notice.
19. Insurance on the Premises. XXXXXX XXXXXX, at XXXXXX XXXXXX'x sole
expense, shall cause to be issued, and shall keep in full force and effect,
insurance policies insuring the Premises against all perils, specifically
including damage to the windows, walls and doors made of plate glass, glass or
similar glazing material. WHMF shall be named as a coinsured, and XXXXXX XXXXXX
shall provide WHMF evidence of such insurance upon execution of this lease and
on or before March 1 of each year thereafter.
The parties release each other and their respective authorized
representatives from any claims for damage to any person or to the Premises and
the building and other improvements in which the Premises are located, and to
the fixtures, personal property, tenant's improvements and alterations of either
WHMF or XXXXXX XXXXXX in or on the Premises and the building and other
improvements in which the premises are located, that are caused by or result
form risks insured against under any insurance policies carried by the parties
and in force at the time of any such damage.
Each party shall cause each insurance policy obtained by it to
provide that the insurance company waives all right of recovery by way of
subrogation against either party in connection with any damage covered by any
policy. Neither party shall be liable to the other for any damage caused by fire
or any of the risks insured against under any insurance policy required by this
Lease. If any insurance policy cannot be obtained with a waiver of subrogation,
or is obtainable only by the payment of an additional premium charge above that
charged by insurance companies issuing policies without waiver of subrogation,
the party undertaking to obtain the insurance shall notify the other party of
this fact. The other party shall have a period of ten (10) day after receiving
the notice either to place the insurance with a company that is reasonably
satisfactory to the other party and that will carry the insurance with a waiver
of subrogation, or to agree to pay the additional premium if such policy is
obtainable at additional cost. If the insurance cannot be obtained, or the party
in whose favor a waiver of subrogation is desired refuses to pay the additional
premium charged, the
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other party is relieved of the obligation to obtain a waiver of subrogation
rights with respect to the particular insurance involved.
20. Advertising Signs. No outdoor advertising signs shall be erected
upon or painted on the premises other than those approved by the WHMF in
writing.
21. General Provisions.
21.1. All governmental laws and regulations shall be complied with
by the XXXXXX XXXXXX. No use shall be made or allowed to be made by XXXXXX
XXXXXX, nor acts done, which will increase the existing rate of insurance upon
the building in which said Premises are located, or cause a cancellation of any
insurance policy covering said building or any part thereof.
21.2. In the event XXXXXX XXXXXX shall, for any reason, remain in
possession of the leased Premises or any part thereof, after the expiration of
the term of this Lease with the consent of the WHMF, expressed or implied, such
holding over shall constitute a tenancy from month-to-month only, upon the same
terms and conditions as herein set forth.
21.3. The failure of the WHMF to insist, in any one or more
instances, upon a strict performance of any of the covenants or agreements of
this Lease, shall not be considered as a waiver or relinquishment for the future
of said covenants or agreements, but the same shall continue and remain in full
force and effect. The receipt by the WHMF of any rent, with the knowledge of the
breach of any condition or covenant hereof, shall not be deemed a waiver of any
such breach and no waiver by the WHMF of any of the provisions hereof shall be
deemed to have been made unless expressed in writing and signed by the WHMF.
21.4. Any notice or demand which the XXXXXX XXXXXX may desire or
is required to serve upon WHMF may be given by delivering it to WHMF personally
or, unless otherwise designated in writing, by mailing such notice to WHMF, by
first class mail, postage prepaid, addressed as follows:
WHMF
c/o Xxxxxxx Xxxxxxxx
0000 Xxx Xxxx Xxxx
Xxxxxxx, XX 00000
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Any notice or demand which the WHMF may desire or is required to
serve upon XXXXXX XXXXXX may be given by delivering it to XXXXXX XXXXXX
personally or, unless otherwise designated in writing, by mailing such notice to
XXXXXX XXXXXX, by first class mail, postage prepaid, addressed as follows:
Xxxxxx Xxxxxx
c/o Xxxxx Xxxxxxx
000 Xxxxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
21.5. All of the terms, conditions and provisions of this Lease
shall, subject to the limitations set forth in this Lease, extend to and bind
and inure to the benefit of WHMF and XXXXXX XXXXXX, and their respective heirs,
executors, administrators, successors and assigns, as fully as though they were
in each instance specifically mentioned herein.
Time is expressly declared to be the essence of this Lease and of
each, every and all of the terms, conditions and provisions herein contained.
21.6. Should any provision contained herein be found to be
invalid, the remainder of this agreement shall remain in full force and effect.
22. Entire Agreement. This agreement contains the entire agreement
between the parties and cannot be changed other than in writing signed by the
party to be charged.
WHMF
A California Corporation
Dated December 28, 2001
By: /s/ XXXXXXX XXXXXXXX
-----------------------------------
Xxxxxx Xxxxxx
A California Corporation
Dated December 17, 2001
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------
CEO
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EXHIBIT "A"
[FLOORPLAN]
