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EXHIBIT 10.13.1
POMERADO PROPERTIES L.P.
LEASE SETTLEMENT AGREEMENT
This Lease Settlement Agreement is entered into this 30th day of September, 1997
by and between POMERADO PROPERTIES L.P., a California Limited Partnership,
formerly a California General Partnership comprised of Xxxxxxxx International,
Ltd., and Techbilt Construction Corporation, ("Landlord"), and XXXXXX
COMMUNICATIONS, INC., a Delaware Corporation, ("Tenant"), and relates to that
certain lease between Landlord and Tenant dated July 2, 1992 ("Lease"). All
references to section numbers in this Agreement, if any, shall mean and refer to
the section numbers in the Lease. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings as defined in the Lease.
RECITALS
A. Landlord and Tenant entered into the Lease for the Premises which
consisted of approximately 30,729 rentable square feet, known as Building 29,
00000 Xxxxx Xxxxx, Xxxxx, Xxxxxxxxxx.
B. The term of the Lease is for ten years beginning on the Commencement
Date of the Lease.
C. Tenant took occupancy of the premises on or about the Commencement Date
and has occupied the same continuously ever since.
D. Tenant no longer requires the use of the facilities and lease premises
and has vacated the same on or before July 18, 1997.
E. As of the date of this Agreement, Tenant is indebted to Landlord for
arrearages in the payment of minimum monthly rent and other charges under the
Lease as more particularly described below.
F. As of the date of this Agreement, Landlord has located a new tenant for
the premises, under a new lease that commenced on August 1, 1997.
G. The Lease provides, among other things, that on the occurrence of any
material default by Tenant, Landlord may, with or without notice or demand and
without limiting Landlord in the exercise of any right or remedy which Landlord
may have, maintain Tenant's right to possession, in which case the Lease shall
continue in effect whether or not Tenant has abandoned the Property. In such
event, Landlord shall be entitled to enforce all of Landlord's rights and
remedies under this Lease, including the right to recover the future rent and
other charges as they become due.
H. The parties desire to provide for the liability of Tenant with respect
to past and future rent and other charges under the Lease and for broker's fees
and similar expenses incurred in connection with reletting the property by the
execution of a Promissory Note by Tenant in favor of Landlord.
I. Landlord and Tenant have reached an agreement for the payment of the
sums now due and owing Landlord and now desire to covenant and agree as set
forth hereinbelow.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which the parties hereby acknowledge, Landlord and Tenant agree as follows:
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AGREEMENT
1. Effective Date. The effective date ("Effective Date") of this Agreement
shall be September 30, 1997.
2. Address for Notices. The following shall be addresses for notices:
Address for Notices:
To Lessor: POMERADO PROPERTIES L.P.
0000 Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
To Tenant: XXXXXX COMMUNICATIONS, INC.
00000 Xxxxxxx Xxxxx Xxxxx X.
Xxx Xxxxx, Xxxxxxxxxx 00000
3. Past Due Amounts.
3.1 Past Due Rent. Landlord and Tenant acknowledge and agree that as of the
date of this Agreement, Tenant is indebted to Landlord in the total amount of
$115,925.61 (the "Past Due Rent") representing accrued and unpaid Rent now owing
by Tenant under the Lease. A current statement showing the breakdown of the Past
Due Amount is attached hereto as Exhibit A.
3.2 Unearned Brokers Commissions. Landlord and Tenant acknowledge that, as
of the Effective Date, the Tenant is indebted to Landlord in the amount of
$6,203.13, representing unearned leasing commissions under the original Lease
paid by Landlord. The Past Due Rent and the Commissions totalling $122,128.74
are sometimes hereinafter collectively referred to as the "Past Due Amounts".
4. Amounts Becoming Due.
4.1 Future Rent and Other Charges Payable by Tenant. Landlord and Tenant
acknowledge and agree that, from the date it vacated the Premises forward,
Tenant became further obligated to Landlord resulting from obligations under the
lease to pay base rent, additional rent and other charges. This obligation shall
be called "Future Amounts Due".
4.2 Future Amounts Due After Reletting. The Landlord has entered into a new
lease for the property and has begun receiving rent thereunder. The revenues to
be collected by Landlord under the new lease more or less equals the revenues it
would have received for the same term of the new lease as from the original
Lease. The Landlord has become obligated to CB Commercial Real Estate Group for
the additional cost of the broker's commission for the new lease in the amount
of $60,000.00, payable in four monthly installments.
5. Repayment of Past Due Amounts and Future Amounts Due.
5.1 Promissory Note. Concurrently with the execution of this Agreement,
Tenant shall execute a Note. Tenant's obligation to pay the Past Due Amounts and
the Future Amounts Due shall be evidenced by a Promissory Note (the "Promissory
Note") in the form attached hereto as Exhibit B, which shall be executed by
Tenant. Tenant acknowledges and agrees that a breach of any of the terms and
conditions of this Agreement shall also constitute a material default under the
Note, and at Landlord's election, the entire indebtedness then outstanding under
the Note shall become immediately due and payable, provided however, a default
in payment under this note shall have occurred if payment has not been received
by the holder within five (5) days of the due date of any payment; the maker of
the note shall have a further five (5) days to cure the default.
5.2 The principal amount of the Promissory Note shall comprise the total
amount past due rent as set forth in Article 3.1 above, together with unearned
broker's commission as set forth in Article 3.2 above, or a total of
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$122,128.74 plus the Future Amount Due of $60,000.00 as set forth in Article 4.2
above; however, insofar as the amount of $60,000.00 is payable by Pomerado
Properties L.P. to CB Commercial Real Estate Group in four equal monthly
installments without interest, the amount of the Promissory Note for interest
calculation purposes from time to time shall include only those installments of
$60,000.00 that have been paid by Pomerado Properties L.P. together with the
other amounts of principal of the Promissory Note. The total amount of the
Promissory Note is $182,128.74. Repayment of the Promissory Note shall be by an
initial payment of $25,000 applied first as to interest and then as to principal
when the Promissory Note is executed followed by consecutive equal installments
of $5,000 or more each month commencing on November 1, 1997 applied first as to
interest and then as to principal.
5.3 Release. Upon the execution of the Promissory Note, Landlord shall
release Tenant from all obligations under the lease to pay base rent, additional
rent, and other periodic payments other than as set forth in this Agreement.
5.4 Accelerated Rate of Payment. Notwithstanding the payment schedule set
out in Article 5.2 and in the Promissory Note, Tenant intends to accelerate the
rate of repayment if Xxxxxx Communications, Inc. is able to raise additional
equity financing or has increased net revenues leading to an improved financial
condition of Xxxxxx Communications, Inc.
6. Security Deposit.
6.1 The Security Deposit in the amount of $16,185 deposited with the
Landlord under the original lease will be used by the Landlord to offset
Landlord's cost of repair, repainting, cleaning the premises at mid-term of the
original lease. These costs totalled $15,334.14. The amount of Security Deposit
remaining will be credited by Landlord against Promissory Note.
7. No brokers. Landlord and Tenant acknowledge that each party has represented
its own interest in structuring this Agreement and that no brokerage
commissions, finders fees or any other similar compensation is payable by either
party to the other or to any other party in regard to this transaction.
8. Notices. All notices provided for under this Agreement shall be in writing
and shall be sufficient if sent by certified mail, return receipt requested,
postage prepaid, to the last known address of the parties to whom such notice is
to be given.
9. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
10. Further Agreements. The parties agree to execute any further agreements or
instruments and to perform any further acts incidental to the purpose of this
Agreement as are necessary to put it into full force and effect.
11. Successors Bound. All rights and obligations hereunder shall inure to the
benefit of and be binding on the heirs, personal representatives, successors,
and assigns of the parties hereto.
12. California Law. This Agreement shall be governed by the laws of the State
of California applicable to agreements made and to be executed within
California.
13. Entire Understanding. This Agreement represents the entire understanding of
the parties and supersedes all previous written or oral agreements relative to
the subject matter thereof.
14. Attorney's Fees. If any action at law or in equity, including an action for
declaratory relief, is brought to enforce or interpret the provisions of this
agreement, the prevailing party shall be entitled to a reasonable attorney's
fee, which may be set by the Court in the same action or in a separate action
brought for that purpose, in addition to any other relief to which that party
may be entitled.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement effective
as of the date first set forth above.
LANDLORD: TENANT:
POMERADO PROPERTIES X.X. XXXXXX COMMUNICATIONS, INC.
a California Limited Partnership a Delaware Corporation
by: /s/ Xxxx X. Xxxxxx by: /s/ Xxxxxx X. Xxxx
Name: Xxxx X. Xxxxxx Name: Xxxxxx X. Xxxx
Title: President Title: President
by: /s/ Xxxxxxx X. Xxxxxxxx by: /s/ Xxxxxx Xxxxxx
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxx Xxxxxx
Title: General Partner Title: Corporate Secretary
(seal)
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EXHIBIT B
$182,128.74 Sept. 30, 1997
Promissory Note
FOR VALUE RECEIVED, the undersigned XXXXXX COMMUNICATIONS, INC., a Delaware
Corporation, promises to pay to the order of POMERADO PROPERTIES L.P., a
California Limited Partnership, at its principal office at 0000 Xxxxxx Xxxxxx,
Xxx Xxxxx, Xxxxxxxxxx, 00000, or at such other place as the Holder of this Note
may from time to time designate in writing, the principal sum of $182,128.74
together with interest from date hereof at the rate of Ten percent (10%) per
annum; principal and interest to be paid as follows:
1. The sum of $25,000.00 as an initial payment of when this Promissory Note
is executed followed by consecutive equal monthly installments of $5,000 or more
each, commencing November 1, 1997 until such principal sum together with
interest has been paid in full.
The first installment is due on October 10, 1997, and subsequent
installments are due on the first day of each succeeding month thereafter until
this Note is paid in full. Each such installment, when paid shall be applied
first to the payment of interest accrued on unpaid principal and the residue
thereof to be credited to principal.
A default in payment under this Note shall have occurred if payment has not
been received by the Holder within the five (5) days of the due date of any
payment. The Maker of the Note shall have a further five (5) days to cure the
default. If the Maker has not cured the default by the end of this ten (10) day
period, this Note may, at the option of the Holder hereof, be declared
immediately due and payable without notice to the maker. The Holder may waive
any default before or after the same has been declared and restore this Note to
full force and effect without impairing the right to declare this Note due for a
subsequent default, this right being a continuing one.
In addition to the foregoing, if the Maker shall fail to make any payment
of interest or principal, including the payment due upon maturity, a late charge
equal to ten percent (10%) of the delinquent installment shall be paid for the
first month that each installment is delinquent, provided such installment has
not been paid by the eleventh day of the month in which the installment becomes
delinquent.
The right is reserved to prepay the Note in full on any interest-bearing
date, and to pay a greater sum than $5,000 upon the due date of any monthly
installment.
The undersigned waives presentment, protest and demand, notice of protest,
demand and dishonor and non-payment of this Note and agrees to pay all costs of
collection when incurred, including reasonable attorneys' fees, and to perform
and comply with each of the covenants, conditions, provisions and agreements of
any of the undersigned contained in every instrument now evidencing of securing
said indebtedness. No extension of the time for the payment of this Note shall
operate to release, discharge, modify, change or affect the original liability
under this Note, either in whole or in part, of any of the undersigned not a
party to such agreement. Notwithstanding any provision herein or in any
instrument now or hereafter securing said indebtedness, the total liability for
payments in the nature of interest shall not exceed the limits now imposed by
the usury laws of the State of California.
XXXXXX COMMUNICATIONS, INC.,
a Delaware Corporation
by: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: President
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by:/s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Corporate Secretary
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