STANDARD SUBLEASE
American Industrial Real Estate Association
1. Parties. This Subleaae dated for reference purposes only. June 1, 1997
is made by and between General Textiles (herein called "Sublessor") and
Fotoball USA, Inc. (herein called "Sublessee".
2. Premises. Sublessor hereby subleases to Subleases and Subleasee hereby
subleases from Sublessor for the term at the rental and upon all the
conditions set forth herein, that real properly situated in the County of
San Diego State of California, commonly known as 0000 Xxxxxx Xxxx and
described as southwest protion, consisting of approximately 22,530 square
feet.
Said real property including tne lands and all improvements thereon, is
hereafter called the "Premises".
3. Term.
3.1 Term. The term of this Sublease shall be for 12 months commencing on
July 14, 1997 and ending on July 13, 1998 unless sooner terminated pursuant
to any provision hereof.
3.2 Delay in Commencement. Notwithstanding said commencement date, if for
any reason Sublessor cannot deliver possession of the Premises to Sublessee
on said date. Sublessor shall not be subject to any liability therefore, nor
shall such failure affect the validity of this Lease or the obligations of
Subleasee hereunder or extend the term hereof, but in such case Sublessee
shall not be obligated to pay rent until possession of the Premises is
tendered to Sublessee; provided, however, that if Sublessor shall not have
delivered possession of the Premises within sixty (60) days from said
commencement date, Sublessee may, at Sublessee's option, by notice in writing
to Sublessor within ten (10) days thereafter, cancel the Sublease. In which
event the parties shall be discharged from all obligations thereunder. If
Sublessee occupies the Premises prior to said commencement date, such
occupancy shall be subject to all provisions hereof, such occupancy shall
not advance the termination date and Sublessee shall pay rent for such period
at the initial monthly rates set forth below.
4. Rent. Sublessee shall pay to Sublessor as rent for the Premises equal
monthly payments of $9,913.20 in advance on the 1st of each month of the term
hereof. Sublessee shall pay Sublessor upon the execution hereof $9,913.20
as rent for the first month.
Rent for any period during the term hereof which is for less then one month
shall be a prorata portion or the monthly installment. Rent shall be payable
in lawful money of the United States to Sublessor at the address stated
herein or to such other persons or at such other places as Subleesor
may designate in writing.
5. Security Deposit. Sublessee shall deposit with Sublessor upon execution
hereof $9,913.20 as security for Sublessee's faithful performance of
Sublessee's obligations hereunder. If Sublessee fails to pay rent or other
charges due hereunder, or otherwise defaults with respect to any provision or
this Sublease, Sublessor may use, apply or retain all or any portion of said
deposit for the payment of any rent or other charge in default or for the
payment of any other sum to which Sublessor may become obligated by reason of
Sublessee's default, or to compensate Sublessor for any loss or damage which
Sublessor may suffer thereby. If Sublessor so uses or applies all or any
portion of said deposit, Sublessee shall within ten (10) days after written
demand therefore deposit cash with Sublessor in an amount sufficient to
restore said deposit to the full amount hereinabove stated and Sublessee's
failure to do so shall be a material breach of this Sublease. Sublessor
shall not be required to keep said deposit separate from its general accounts.
If Sublessee performs all of Sublessee's obligations hereunder, said deposit,
or so much thereof as has not theretofore been applied by Sublessor, shall be
returned, without payment of interest or other increment for its use to
Sublessee (or at Sublessor's option to the last assignee. If any of
Sublessee's interest hereunder) at the expiration of the term hereof, and
after Sublessee has vacated the Premises NO trust relationship is created
herein between Sublessor and Sublessee with respect to said Security Deposit.
6. Use.
6.1 Use the Premises shall be used and occupied only for general storage
and distribution of sports-themed consumer products and for no other
purpose.
6.2 Compliance with Law.
(a) Sublessor warrants to Sublessee that the Premises in its existing
state, but without regard to the use for which Sublessee will use the
Premises does not violate any applicable building code regulation or ordinance
at the time that this Sublease is executed. In the event that it is
determined that this warranty has been violated, then it shall be the
obligation of the Sublessor after written notice from Sublessee, to promptly
at Sublessor's sole cost and expense rectify any such violation in the event
that Sublessee does not give to Sublessor written notice or the violation
of this warranty within 1 year from the commencement of the term of this
Sublease. It shall be conclusively deemed that such violation did not exist
and the correction or the same shall be the obligation or the Sublessee.
(b) Except as provided in paragraph 6.2(a), Sublessee shall, at
Sublessee's expense, comply promptly with all applicable statutes, ordinances,
rules, regulations, orders, restrictions of record, and requirements in effect
during the term or any part of the term hereof regulating the use by Sublessee
of the Premises. Sublessee shall not use or permit the use of the Premises
in any manner that will tend to create waste or a nuisance or if there shall
be more than one tenant at the building containing the Premises, which shall
tend to disturb such other tenants.
6.3 Condition of premises. Except as provided in paragraph 6.2(a)
Sublessee hereby accepts the Premises in their condition existing as of the
date of the execution hereof, subject to all applicable zoning, municipal,
county and state laws ordinances, and regulations governing and regulating
the use of the Premises and accepts this Sublease subject thereto and to all
matters disclosed thereby and by any exhibits attached hereto Sublessee
acknowleges that neither Sublessor nor Sublessor's agents have made any
representation or warranty as to the suitability of the Premises for the
conduct of Sublessee's business.
7. Master Lease.
7.1 Sublessor is the lessee of the Premises by virtue of a lease,
hereinafter referred to as the "Master Lease", a copy of which is attached
hereto marked Exhibit 1, dated June 14, 1993 wherein Xxxxxx Associates, now
Xxxxxx San Diego Corporation c/o American Realty Advisors is the lessor,
hereinafter referred to as the "Master Lessor".
7.2 This Sublease is and shall be at all times subject and subordinate to
the Master Lease.
7.3 The terms, conditions and respective obligations of Sublessor and
Sublessee to each other under this Sublease shall be the terms and
conditions of the Master Lease except for thoses provisions of the Master
Lease which are directly contradicted by this Sublease in which event
the terms of this Sublease document shall control over the Master Lease.
Therefore, for the purposes of this Sublease, wherever in the Master
Lease the word "Lessor" is used it shall be deemed to mean the Sublessor
herein and wherever in the Master Lease the word "Lessee" is used it shall
be deemed to mean Sublessee herein.
7.4 During the term of this Sublease and for all periods subsquent for
obligations which have arisen prior to the termination of this Sublease,
Sublessee does hereby expressly assume and agree to perform and comply with
the benefit of Sublessor and Master Lease, each and every obligation of
Sublessor under the Master Lease except for the following paragraphs
therefrom none.
7.5 The obilgations that Sublessee has assumed under paragraph 7.4
hereof are hereinafter referred to as the "Sublessee's Assumed Obligations".
The obligations tnat Sublessee has not assumed under paragraph 7.4 hereof are
hereinafter referred to as the "Sublessor's Remaining Obligations".
7.6 Sublessee shall hold Sublessor free and harmless of and from all
liability, judgments, costs, damages, claims or demands, including reasonable
attorneys fees, arising out of Sublessee's failure to comply with or perform
Sublessee's Assumed Obligations.
7.7 Sublessor agrees to maintain the Master Xxxxx during tha entire term
of this Sublease, subject, however, to any earlier termination of the Master
Lease without the fault of the Sublessor, and to comply with or perform
Sublessor's Remaining Obligations and to hold Sublessee free and harmless
of and from all liability, judgments, costs, damages, cliams or demands
arising out of Sublessor's failure to comply with or perform Sublessor's
Remaining Obligations.
7.8 Sublessor represents to Sublessee that the Master Lease is in full
force and effect and that no default exists on the part of any party to the
Master Lease.
8. Assignment of Sublease and Default.
8.1 Sublessor hereby assigns and transfers to Master Lessor the Sublessor's
interest in this Sublease and all rentals and income arising therefrom,
subject however to terms of Paragraph 8.2 hereof.
8.2 Master Lessor, by executing this document agrees that until a default
shall occur in the performance of Sublessor's Obligations under the Master
Lease, that Sublessor may receive, collect and enjoy the rents accruing under
this Sublease. However, if Sublessor shall default in the performance of its
obligations to Master Lessor then Master Lessor may, at its option, receive
and collect, directly from Sublessee all rent owing and to be owed under this
Sublease Master Lessor shall not, by reason of this assignment or the Sublease
nor by reason of the collection of the rents from the Sublessee, be deemed
liable to Sublessee for any failure of the Sublessor to perform and comply
with Sublessor's Remaining Obligations.
8.3 Sublessor hereby irrevocably authorizes and directs Sublessee upon
receipt of any written notice from the Master Lessor stating that a default
exists in the performance of Sublessor's obligations under the Master Lease,
to pay to Master Lessor the rents due and to become due under the Sublease.
Sublessor agrees that Sublessee shall have the right to rely upon any such
statement and request from Master Lessor and that Sublessess shall pay such
rents to Master Lessor without any obligation or right to inquire as to
whether such default exists and notwithstanding any notice from or claim from
Sublesor to the contrary and Sublessor shall have no right or claim against
Sublessse for any such rents so paid by Sublessee.
8.4 No changes or modifications shall be made to this Sublease without the
consent of Master Lessor.
9. Consent of Master Lessor.
9.1 In the event that the Master Lease requires that Sublessor obtain the
consent of Master Lessor to any subletting by Sublessor then this Sublease
shall not be effective unless, within 10 days of the date hereof. Master
Lessor signs this Sublease thereby giving its consent to this Subletting.
9.2 In the event that the obligations of the Sublessor under the Master
Lease have been guaranteed by third parties then this Sublease nor the Master
Lessor's consent, shall not be effective unless within 10 days of the date
hereof said guarantors sign this Sublease thereby giving guarantors consent to
this Sublease and the terms thereof.
9.3 In the event that Master Lessor does give such consent then:
(a) Such consent will not release Sublessor of its obligations or
alter the primaly liability of Sublesssor to pay the rent and perform and
comply with all of the obligations of Sublessor to be performed under the
Master Lease.
(b) The acceptance of rent by Master Lessor from Sublessee or any
one else liable under the Master Lease shall not be deemed a waiver by
Master Lessor of any provisions of the Master Lease
(c) The consent to this Sublease shall not constitute a consent to any
subsequent subletting or assignment.
(d) In the event of any default of Sublessor under the Master Lease,
Master Lessor may proceed directly against Sublessor, any guarantors or any
one else liable under the Master Lease or this Sublease without first
exhausting Master Lessor's remedies against any other person or entity
liable thereon to Master Lessor.
(e) Master Lessor may consent to subsequent subletting and assignments
of the Master Lease or this Sublease or any amendments or modifications
thereto without notifing Sublessor nor any one else liable under the Master
Lease and without obtaining their consent and such action shall not relieve
such persons from liability.
(f) In the event that Sublessor shall default in its obligations under
the Master Lease, then Master Lessor at its option and without being
obligated to do so may require Sublessee to attorn to Master Lessor in which
event Master Lessor shall undertake the obligations of Sublessor under this
Sublease from the time of the exercise of said option to termination of this
Sublease but Master Lessor shall not be liable for any prepaid rents nor any
security deposit paid by Sublessee nor shall Master Lessor be liable for any
other defaults of the Sublessor under the Sublease.
9.4 The signatures of the Master Lessor and any Guarantors of Sublessor at
the end of this document shall constitute their consent to the terms of
this Sublease.
9.5 Master Lessor acknowledges that to the best of Master Lessor's
knowledge no default presently exists under the Master Lease of obligations
to be performad by Sublessor and that the Master Lease is in full force and
effect.
9.6 In tne event that Sublessor defaults under its obligations to be
performed under the Master Lease by Sublessor. Master Lessor agrees to
deliver to Sublessee a copy of any such notice of default. Sublessee shall
have the right to cure any default of Sublessor described in any notice of
default within ten days after service of such notice of default on Sublesse.
If such default is cured by Sublessee then Sublessee shall have the right of
reimbursement and offset from and against Sublessor.
10. Brokers Fee.
10.1 Upon execution hereof by all parties, Sublessor shall pay to CB_
Commercial a licensed real estate broker. (herein called "Broker") a fee as
set forth in a separate agreement between Sublessor and Broker or in tne event
there is no separate agreement between Sublessor and Broker, the sum of
$ per agreement for brokerage services rendered by Broker to Sublessor in
this transaction.
10.2 Sublessor agrees that if Sublessee exercises any option or right of
first refusal granted by Sublessor herein or any option or right substantially
similar thereto, either to extend the term of this Sublease to renew this
Sublease, to purchase the Premises, or to lease or purchase adjacent property
which Sublessor may own or in which Sublessor has an interest or if Broker is
the procuring cause of any lease, sublease, or sale pertaining to the Premises
or any adjacent property which Sublessor may own or in which Sublessor has an
interest then as to any of said transactions Sublessor shall pay to Broker a
fee in cash in accordance with the schedule of Broker in effect at the time
of the execution of this Sublease. Notwithstanding the foregoing Sublessor's
obligatilon under this Paragraph 10.2 is limited to a transactton in which
Sublessor is acting as a sublessor, lessor or seller.
10.3 Master Lessor agrees by its consent to this Sublease, that if
Sublessee shall exercise any option or right of first refusal granted
to Sublessee by Master Lessor in connection with this Sublease or any option
or right substantially similar thereto either to extend the Master Lease, to
renew the Master Lease to purchase the Premises or any part thereof, or to
lease or purchase adjacent properly which Master Lessor may own or in which
Master Lessor has an interest or if Broker is the procuring cause of any
other lease or sale entered into between Sublessee and Master Lessor
pertaining to the Premises any part thereof, or any adjacent property
which Matter Lessor owns or in which it has an interest, then as to any of
said transactions Master Lessor shall pay to Broker a fee in cash in
accordance wih the schedule of Broker in effect at the time of its consent
to this Sublease.
10.4 Any fees due from Sublessor or Master Lessor hereunder shall be due
and payable upon the exercise of any option to extend or renew as to any
extension or renewal upon the execution of any new lease as to a new lease
transaction or the exercise of a right of first refusal to lease: or at the
close of escrow as the exercise of any option to purchase or other sale
transaction.
10.5 Any transferee of Sublessor's interest in this Sublease or of
Master Lessor's interest in the Master Lease by accepting an assignment
thereof shall be deemed to have the respective obligations of Sublessor
or Master Lessor under this Paragraph 10. Brokfer shall be deemed to be a
third-party beneficiary of this paragraph 10.
11. Attorney's fees. If any party or the broker named herein brings an action
to enforce the terms hereof or to declare rights hereunder the prevailing
party in any such action on trial and appeal shall be entitled to his
reasonable attorney's fees to be paid by losing party as fixed by the Court.
The provision of this paragraph shall inure to the benefit of the Broker named
herein who seeks to enforce a right hereunder.
12. Additional Provisions [If there are no additional provisions draw a line
from this point to the next printed word after the space left here. If
there are additional provisions place the same here.]
1. Subleasee shall have the right to renew the lease for an additional twelve
(12) month period. The lease rate for the option term shall increase by $.01
on the thirteenth month. All other terms and conditions shall remain the same.
Sublease must give Sublessor ninety (90) days' written notice in order to
exercise this option. The new monthly rent rate will be $10,138.50.
2. All Tenant Improvements are subject to Sublessor and Landlord approval.
All Tenant Improvements shall be done at Sublessee's expense.
3. Premises have one dock high door and one man door accessed by stairs.
4. Tenant Improvements: Tenant may construct the following tenant improvements
at Tenant's sole cost and expense:
a. Construct a demising wall between the Premises in the adjacent
warehouse space;
b. Separate utilities for the Premises and the adjacent warehouse space;
c. Construct a r-stroom with the Premises; and
d. Install racking within the Premises.
5. Parking: Tenant shall be granted the use of 18 unreserved parking spaces.
Sublessor reserves the right to park trailers in areas designated and
approved by Master Lessor in its sole discretion.
If this Sublease has been filled in it has been prepared for submission to
your attorney for his approval. No representation or recommendation is made
by the real estate broker or its agents or employees as to the legal
sufficiency, legal effect, or tax consequences of this Sublease or the
transaction relating thereto.
Executed at San Diego General Textiles
on June 27, 1997 By: /s/ Xxx Xxxxx
address 0000 Xxxxxx Xxxx ---------------------
Xxx Xxxxx, XX 00000 Xxx Xxxxx
"Sublessor" (Corporate Seal)
Executed at San Diego Fotoball USA, Inc.
on June 27, 1997 By: /s/ Xxxxx X. Xxxxxxx
address 0000 Xxxxxx Xxxx ---------------------
Xxx Xxxxx, XX 00000 Xxxxx X. Xxxxxxx
"Sublessee" (Corporate Seal)
Executed at Glendale Ruffin San Diego Corporation
on June 27, 1997 By: /s/
address 000 Xxxxx Xxxxx Xxxxxxxxx ---------------
Xxx. 000 Xxxxxxxx, XX 00000
