<PAGE>
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-KSB
(Mark One)
[X] Annual Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
[Fee Required]
For the Fiscal Year Ended December 31, 1995
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
[No Fee Required]
For the transition period from _____________ to________________
Commission File Number 0-16894
SUPERMAIL INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Utah 87-0423053
(State of Incorporation) (IRS Employer Identification No.)
2201 Park Towne Circle, Suite 200, Sacramento, California 95825
(address of principal executive offices)
Issuer's telephone number: (916) 483-1131
Securities Registered Pursuant to Section 12(b) of the Act:None
Securities Registered Pursuant to Section 12(g) of the Act:Common Stock
Check whether the registrant (1) filed all reports required to be
filed by Section 13 or 15(d) of the Exchange Act during the past 12
months (or such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements for
the past 90 days. Yes [X] No [ ]
Check if there is no disclosure of delinquent filers in response to
Item 405 of Regulation S-B is not contained in this form, and no
disclosure will be contained, to the best of registrant's knowledge, in
definitive proxy or information statements incorporated by reference in
Part III of this Form 10-KSB or any amendment to this Form 10-KSB. [X]
Issuer's revenue for the year ended December 31, 1995: $4,418,598
Aggregate market value of the voting stock held by non-affiliates
of the registrant as of March 22, 1996: $4,030,225
The total number of shares outstanding of each of the Issuers's
classes of common stock as of March 22, 1996, was 7,607,177 of a single
class of $.06 par value per share common stock.
Documents Incorporated by Reference:
None
Transitional Small Business Disclosure Format: Yes ; No X
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized.
Supermail International, Inc.
(Registrant)
By /s/ Christine A. Umbertino Date March 30,1996
Christine A. Umbertino
Chief Executive Officer
Pursuant to the Securities Exchange Act of 1934, this report has been
signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated.
By /s/ Christine A. Umbertino Date March 30,1996
Christine A. Umbertino
Chief Executive Officer and Director
By /s/ Umberto Umbertino Date March 30, 1996
Umberto J. Umbertino
President & Director
By /s/ Kurt Lee Date March 30, 1996
Kurt Lee
Chief Financial Officer
By /s/ Mercedes Veiga Date March 30, 1996
Merecedes Veiga
Director
By /s/ John J. Feliz Date March 30, 1996
John J. Feliz
Director
By /s/ Bradley D. Cox Date March 30, 1996
Bradley D. Cox
Director
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Exhibit Index
1) 10.79 Lease for 6740 Reseda Blvd #A&B, Reseda, California 91335
2) 10.80 Lease for 229 & 231 E. 17th Street, Santa Ana,
California 92706
3) 10.81 Lease extension for 10167 Folsom Blvd, Rancho Cordova,
California 95670
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LEASE
This LEASE is made and entered into and effective as of this May 10, l995
between COROLLA CENTERS, Inc., c/o Centers Realty Inc. hereinafter
called'Landlord" and SUPERMAIL INTERNATIONAL, INC., hereinafter called
'Tenant'.
1. PREMISES.
Landlord leases to Tenant, and Tenant leases from Landlord, upon the terms and
conditions hereinafter set forth, the real property and the building thereon,
located in the City of RESEDA, County of Los Angeles, State of California,
commonly known as 6740 RESEDA BLVD #A&B, RESEDA, CA, 91335, referred to as the
"Premises". The Premises are located in a multi-store shopping center,
hereinafter called the "Center".
2. TERM.
The term of this Lease will commence upon full execution and will expire FIVE
(5) years after the Rent Commencement Date.
3. RENT.
3.1 MINIMUM RENT.
(a) Tenant's obligation to pay rent will commence four (4) months from
date of possession of premises hereinafter called the "Rent Commencement
Date".
(b) Tenant shall pay Landlord minimum guaranteed rent ('Minimum Rent")
for the Premises in monthly payments in advance commencing on the Rent
Commencement Date and thereafter on the first (lst) day of each succeeding
calendar month as follows: FOUR THOUSAND ONE HUNDRED THIRTY EIGHT DOLLARS
and 75/100 ($4,138.75). In the event that the Rent Commencement Date is not on
the first (lst) day of a calendar month, Minimum Rent will be prorated for the
period from the Rent Commencement Date to the first (lst) day of the next
month.
The minimum Rent will be increased, but in no event decreased, on
each anniversary of the Rent Commencement Date (each such anniversary, an
"Adjustment Date") in accordance with the provisions of this paragraph and
with reference to the Consumer Price Index (All Items) for All Urban Consumers
for the Los Angeles-Long Beach-Anaheim area (1967-100) ( the 'Index")
published by the bureau of Labor Statistics of the United States Department of
Labor. The Index published for the date which is three (3) calendar months
prior to the Adjustment Date (the 'Adjustment Index") shall be compared with
the Index published for the date which is three (3) calendar months
prior to the immediately preceding Adjustment date, or the Rent Commencement
Date, in the case of the first such adjustment hereunder (collectively the
'Reference Index'). If the Adjustment Index is greater than the Reference
Index, then the annual Minimum Rent payable from and after the Adjustment date
(until the next adjustment) shall be determined by multiplying the annual
Minimum Rent payable for the immediately preceding twelve (12) month period
by a fraction, the numerator of which shall be the Adjustment Index and the
denominator of which shall be the Reference Index. Notwithstanding the
foregoing, Minimum Rent shall be increased each year by an amount equal to
at least (no%) percent, but not more than (5%) percent of the annual Minimum
Rent is determined after each Adjustment Date. Landlord shall give Tenant
written notice indicating the amount and method of computation thereof. If at
any Adjustment Date the Index shall not exist, then Landlord may substitute
any official Index published by the Bureau of Labor Statistics or successor or
similar agency that is then most nearly equivalent to the Index.
Tenant, except as otherwise provided for herein, shall perform all of its
other obligations under this Lease commencing as of the date that possession
of the Premises is tendered to Tenant.
3.2 All payments of rent shall be made in lawful money of the United
States without deduction, offset, prior notice or demand. Rent for any
portion of month shall be prorated on the basis of a thirty (30) day month.
4. POSSESSION AND CONDITION OF THE PREMISES.
4.1 Tenant agrees to accept the Premises in their "as is" condition as of
the date hereof and throughout the term of this Lease. Without limiting the
forgoing, Tenant's rights in the Premises are subject to all municipal, county
and state laws, ordinances and regulations governing and regulating the use
and occupancy of the Premises. Tenant acknowledges that neither Landlord nor
Landlord's agent has made any representation or warranty as to the present or
future suitability of the Premises for the conduct of Tenant's business, or
that Tenant's proposed use of the premises or Its manner of operation are In
compliance with applicable laws of governmental regulations.
4.2 Tenant hereby warrants that it has investigated whether its proposed
use of the Premises and its proposed manner of operation will comply with all
applicable laws, and Tenant assumes the risk that its proposed use of the
Premises and its proposed manner of operation are and will continue to be, in
compliance with all applicable laws, including, without limitation, all zoning
laws regulating the use of and enjoyment of the Premises or its manner of
operation. Additionally, Tenant agrees to install and pay for any
improvements, changes or alterations in the Premises, required by any
governmental authority, as a result of its proposed use of the Premises or its
manner of operation.
5. SECURITY DEPOSIT.
Tenant, contemporaneously with the execution of this Lease, has deposited with
Landlord the sum of FOUR THOUSAND ONE HUNDRED THIRTY EIGHT DOLLARS AND 75/100
($4,138.75). Said deposit is being given to secure the faithful performance by
tenant of all of the terms, covenants and conditions of this Lease by Tenant,
to be kept and performed during the term hereof. Tenant agrees that if Tenant
shall fail to pay the rent herein reserved promptly when due, said deposit
may, at the option of Landlord (but Landlord shall not be required to) be
applied to any rent due and unpaid, and if Tenant violates any of the other
terms, covenants and conditions of this Lease, said deposit may be applied to
any damages suffered by Landlord as a result of Tenant's default, to the
extent of the amount of damages suffered.
Nothing in this Article 5 shall in any way diminish or be construed as waiving
any of Landlord's other remedies by law or in equity. Should all or any part
of the security deposit be applied by Landlord as herein provided, then Tenant
shall, on the written demand of Landlord, forthwith remit to Landlord a
sufficient amount in cash to restore said security deposit to its original
amount Landlord reserves the right to increase the amount of said security
deposit so held, at the time of and in portion to the amount of increase in
the Minimum Rent paid hereunder, should such rent be increased on any
Adjustment Date as set forth in Paragraph 3.1 (c). In the event Landlord
elects to exercise such right Tenant shall be so notified, in writing, in the
same manner and at the same as Landlord's required notice to Tenant concerning
Minimum Rent Adjustments pursuant to paragraph 3.1 hereof. Should Tenant
comply with all of the terms, covenants and conditions of this lease, said
security deposit shall be returned in full to Tenant at the end of the term of
this Lease. Landlord shall have the right to commingle or invest said
security deposit, and in no event shall Tenant be entitled to receive any
interest or income thereon, it being agreed that any interest shall be deemed
to be additional rent. Landlord may deliver the funds deposited under this
Article by Tenant to the purchaser or transferee of Landlord's interest in the
premises in the event such interest be sold or transferred; and there upon
Landlord shall be discharged from further liability with respect to such
deposit.
6. USE AND TRADE NAME.
6.1 The Premises shall be used and occupied by Tenant and its approved
assignees, sublessees, licensees and concessionaires only for the purpose of
conducting therein a CHECK CASHING, ELECTRONIC MONEY TRANSFERS, ISSUANCE OF
MONEY ORDERS, ISSUANCE OF FOOD STAMPS AND COUNTY ASSISTANCE CHECKS, TRAVEL
SERVICES, INCOME TAX PREPARATION, SALE OF BUS PASSES, TELEPHONE BOOTHS FOR
LONG DISTANCE CALLS, in accordance with all present and future zoning laws,
rules and regulations of governmental authorities having jurisdiction thereof,
and subject to all covenants, easements and rights of way of record, if any,
which are present in existence or hereafter consented to in writing by Tenant.
Tenant shall not use the Premises for any other purpose without Landlord's
prior written consent. Landlord agrees not to lease other units In the center
to Tenants conducting the same or similar business as Tenant's.
6.2 Tenant's consent shall not be required for the creation of any covenants,
easements or rights of way which are created or required by, or result from
the action of any governmental authority
6.3 Tenant agrees (a) not to use, or suffer permit the Premises or any
part thereof, to be used in any manner that will constitute a nuisance or an
unreasonable annoyance to the owners or occupants of the Center, or that might
injure the reputation of the Center, or for any extra-hazardous purposes, or
in any manner that might violate any policy or policies of insurance or
suspend, avoid, make inoperative or increase the rate of any fire, rental
insurance, or other insurance, at any time carried on any building in the
Center or any of its contents; (b) not to permit any auction, fire or
bankruptcy sale to be conducted in the Premises; not to suffer or permit the
Premises or any part thereof to be used in any manner that will injure or
impair the structural strength of said building or annoy other tenants. The
Premises and every part hereof, shall be kept by Tenant in a clean, sanitary
and wholesome condition, free from any objectionable noises, odors, or
nuisances, public or private.
7. COMPLIANCE WITH LAWS-SIGNS.
7.1 Tenant shall, at Tenant's sole cost and expense, comply promptly with
all applicable statues, ordinances, rules, regulations, orders, restrictions
of record, if any, and requirements in effect during the term, or any part
hereof, regulating the use or occupancy by Tenant of the Premises, provided
that Landlord shall not make or consent to any restrictions on Tenant's
authorized use of the Premises during the term of this Lease without prior
written notice to Tenant.
7.2 Without Landlord's prior written consent and approval as to form,
specification, detail and content, Tenant shall not (a) install any exterior
lighting or plumbing fixtures, shades or awnings, or any exterior decorations
or signs, or build any fences, or make any changes to the store front; (b)
erect or install any window signs, door signs, or advertising media, window or
door lettering, or placards on the exterior of the premises; keep or display
any merchandise or signs on, or otherwise obstruct the sidewalks or areaways
adjacent to the Premises; or, (d) fail to maintain the show windows and signs
in a neat and clean condition. Tenant shall not use, in the Premises or areas
adjacent thereto, any advertising or other media objectionable to Landlord or
other tenants, such as loud speakers, phonographs, or radio broadcasts that
can be heard outside the Premises.
7.3 Tenant must, at its own expense, erect an exterior sign on its store
front, subject to Landlord's prior written approval of said sign. Tenant
shall not change the color, size, location, composition, wording, or design of
any sign or advertisement on the Premises that may have been therefore
approved by Landlord and governmental authorities without the prior written
approval of Landlord and said authorities. Tenant shall, at its own expense,
maintain and keep in good repair all installations, signs and advertising
devices which it is permitted by Landlord to maintain and shall pay all
charges required to keep them in good repair. Tenant shall, at its own
expense, maintain and keep in good repair all installations, signs and
advertising devices which it is permitted by Landlord to maintain and shall
pay all charges required to keep them in good repair. Tenant must secure a
contract for construction and installation of its sign within thirty (30) days
of execution of this Lease. Failure to do so shall be breach of this Lease.
Tenant's sign must be installed and operating concurrently with its opening
for business. Tenant's sign shall be deemed real property once installed.
7.4 If the Center has a shared pole sign, Landlord may elect to allow Tenant
to have an additional sign thereon. Tenant has the right to use the two
bottom spaces if available.
8. MAINTENANCE AND REPAIRS.
8.1 At the inception of this Lease, Landlord shall make the following
repairs and installations at its own cost and expense ( to be maintained and
repaired by Tenant), and none other. Lessee shall have 30 (thirty) days from
possession of premises to report any air conditioning or heater malfunction.
Thereafter, Lessee shall be responsible for the units.
8.2 Subject to the provisions of Paragraph 8.1, Tenant shall keep the
Premises and every part thereof, structural or non-structural, in good order,
condition and repair, whether or not the need for such repairs occurs as a
result of Tenant'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 work done by Landlord under Paragraph 8.1, all plumbing, heating, air
conditioning, ventilating, electrical lighting facilities and equipment from
time to time within the Premises, fixtures, walls (interior and exterior),
floors, windows, doors, plate glass and sky lights located within the
Premises. Tenant shall also keep, maintain and repair all alterations,
additions, or improvements to the Premises made by Tenant as provided in
Article 9 (Alterations and Improvements) hereof Tenant shall be responsible
for obtaining and maintaining a service and repair contract for the air
conditioning unit, if any, servicing the Premises, which responsibility shall
continue throughout the existence of this Lease.
8.3 If Tenant fails to perform Tenant's obligations under this Article 8,
Landlord may, at its option (but shall not be required to enter upon the
Premises after twenty (20) day's prior written notice to Tenant of the
specific failure of Tenant under Article 8, and provided that Tenant has not
Heretofore cured such failures, put the same in good order, condition and
repair, and the cost thereof, with an overhead surcharge of ten (10%) percent
of such cost, together with interest at the rate provided in Article 24
(interest and Late Charges) below, shall become due and payable as additional
rental to Landlord together with Tenant's next rental installment.
8.4 Except for the obligations of Landlord under Article 17 (Damage,
Destruction and Restoration) and Article 27 (Condemnation, Eminent Domain), it
is intended by the parties hereto that Landlord shall have no obligation in
any manner, whatsoever, to repair and maintain the Premises, nor any buildings
or improvements located thereon, nor the equipment therein, whether structural
or non-structural, all of which obligations are those of Tenant under this
Lease.
8.5 Tenant has the right to contest by appropriate judicial or
administrative proceedings, without cost or expense to Landlord, the validity
or application of any law, ordinance, order, rule, regulation or requirement
imposed by any governmental authority (hereinafter called "law) that the
Premises be repaired, maintained, altered, or the leasehold improvements be
replaced in whole or in part, or that would affect Tenant's use of the
Premises. In the event that such contest is finally determined in a manner
adverse to Tenant, Tenant shall undertake such repairs, maintenance,
alterations, or replacements to or of the Premises as is required by such law.
Tenant agrees to indemnify and hold Landlord harmless from and against any and
all liability that Landlord may sustain by reason of Tenant's failure or delay
in complying with the law. Landlord may, but is not required to, contest any
such law independently of Tenant. Landlord may, and on Tenant's notice or
request shall, join in Tenant's contest, but at Tenant's sole cost. Rent
shall not abate during the period of any such contest.
9. ALTERATIONS AND IMPROVEMENTS.
9.1 Tenant may, at Tenant's sole cost and expense, during the first year
of this Lease, but subject to the conditions hereinafter stated, make initial
alterations, additions or improvements, (hereinafter collectively called
'alterations"), in, on, to or about the Premises which are required to
commence Tenant's use, per Paragraph 6.1 subject to Landlord's prior
written approval of Tenant's plans. Tenant shall submit detailed plans,
specifications and drawings necessary for the construction of said alterations
to Landlord, by certified mail, within fifteen (15) days following the date
upon which Landlord delivers a fully executed copy of this Lease to Tenant,
and Landlord shall notify Tenant of its approval or disapproval of, and any
necessary changes or modifications to, said plans within a reasonable period
of time following receipt of the same. In the event Landlord disapproves said
plans, as submitted, Tenant shall be advised of the reasons for such
disapproval and shall revise and resubmit said plans, in form and content
acceptable to Landlord, within ten (10) days following Landlord's notice to
Tenant of such disapproval. All of the foregoing alterations shall be at the
sole cost and expense of Tenant, and shall be constructed and performed
subject to the terms, covenants, and conditions of this Lease.
9.2 With respect to all alterations, additions or improvements made by
Tenant in, on, to or about the Premises, whether or not pursuant to Paragraph
9.1 hereof, such alterations shall be for the purpose of facilitating Tenant's
permitted use and shall also be subject to Landlord's prior written approval
of Tenant's plans, which approval shall not be unreasonably withheld, as well
as the terms, covenants and conditions of this Lease. All of the foregoing
alterations shall be at the sole cost and expense of Tenant. All said
alterations shall be made in compliance with applicable zoning and building
codes, and shall not diminish the fair market value of the improvements on the
Premises. Except as herein stated, Tenant shall not have the right, without
Landlord's prior written consent, to demolish any part of the improvements
existing on the Premises at the date of execution of this Lease. Tenant shall
pay when due all claims for labor and materials furnished or alleged to have
been furnished to or for Tenant at or for use in the Premises; shall take
all steps necessary to keep the Premises free from any liens, claims, or
encumbrances; and Tenant agrees to indemnify and hold Landlord, the Premises
and the Center harmless from and against any and all liability arising out of
any such claims. Tenant shall not be permitted to place any mortgage, deed of
trust, or other form of lien or encumbrance on the Premises, Tenant's
leasehold interest therein, or any portion of the Center, for purpose of
financing the construction of any such alterations, securing the repayment of
any financing, or otherwise.
9.3 Following approval of said plans and specifications by Landlord,
Tenant shall immediately commence said alterations and improvements, and shall
use best efforts to complete the same in an expeditious fashion. The
alterations shall be performed in a manner that will not interfere with the
quiet enjoyment of the other tenants of the Center. Tenant shall give
Landlord not less than ten (10) days' notice, in writing, prior to the
commencement of the alterations, and Landlord shall have the right to post
Notices of NonResponsibility in or on the Premises, as provided by law.
Tenant shall have the right, in good faith, to contest the validity of any
such lien, claim or demand, and Tenant shall, at its sole expense, defend
itself and Landlord against the same, and shall pay and satisfy any adverse
judgment that may be rendered thereon before the enforcement thereof against
Landlord or the Premises, and as a condition of contesting any such lien,
Tenant shall provide such bonds or other security as Landlord shall require.
Landlord may require Tenant to pay Landlord's reasonable attorney's fees and
costs in participating in any such action if Landlord participates therein
at the request of Tenant, or if Landlord is joined as a defendant in such
action and Tenant's counsel determines that it cannot ethically or effectively
represent both tenant's and Landlord's interest in such action.
9.4 Any alterations made shall, unless Landlord elects otherwise, remain
on, become part of, and be surrenderedwith the Premises on the expiration or
termination of the term, except that Landlord can elect within thirty (30)
days before the expiration of the term, or within thirty (30) days after
Termination of the term, to require Tenant to remove any alterations that
Tenant has made to the Premises. If Landlord so elects, Tenant at its cost,
shall restore the Premises to the condition designated by Landlord in its
election before the last day of the term, or within thirty (30) days after
notice of election is given, whichever is later. The foregoing provision
shall not apply to any trade fixtures installed by Tenant or any subtenant
which are capable of being removed by Tenant, or any subtenant, without
substantial and unrepairable damage to the Premises, and which Tenant, or any
subtenant, elects to remove upon the termination of this Lease, provided that
Tenant or any subtenant promptly repairs, at its sole cost and expense, all
damage to the remaining improvements on the Premises caused by such removal,
and provided further, that the value of the improvements remaining on the
Promises following such removal, are substantially equal to what the value of
the improvements existing on the Premises at the time of the execution of this
Lease would have been, if the same had remained on the Premises at the time of
termination of this Lease, assuming no alterations and additions thereto, and
only normal wear and tear since the date of the execution of this Lease, and
provided further the Tenant's right to remove such alterations shall be
suspended at any time Tenant is in default under this Lease. Bandit barrier
(teller windows) and man trap are to be taken by the Tenant at the end of the
lease as long such removal will not damage the premises.
9.5 On completion of any work of alteration, addition or improvement by
Tenant, or any subtenant, Tenant shall supply Landlord with " as built'
drawings accurately reflecting all such work.
10. UTILITIES
10.1 Tenant shall pay for all water, sewer, gas, heat, light, power,
steam, telephone or other utilities and service supplied to the Premises,
together with any taxes thereon. Under no circumstances shall Landlord be
responsible for any interruption, cessation, or interference with any such
utility service.
10.2 Tenant acknowledges that the Center (Shell) constructed by Landlord
or previous Landlord, of which the Premises constitutes a part will have,
unless otherwise specifically provided for herein, two (2) separate water
meters installed to service the center. The first such meter ('House Meter")
shall be for monitoring water use for the Common Areas (as defined in Article
19). The expense of operating such House Meter shall be allocated among the
tenants of the Center, and Tenant shall pay as additional rent Tenant's
Proportionate Share of such expense in the same manner as and in accordance
with the provisions of Article 19 covering the payment of such Common Area
expenses. The second such meter ("Tenant Meter') shall be for monitoring
water use by tenants of the Center with respect to water used within or in
relation to the operation of said tenant's business at each of their
respective Premises. Tenant shall pay as additional rent Tenant's
Proportionate Share of the expense of such Tenant Meter water use in the
same manner as and in accordance with the provisions of Article 19 covering
the payment of such Common area expenses.
10.3 Tenant acknowledges that the tenant mix and the tenants permitted
uses within the Center will from time to time change, and such events may
result in greater proportionate water usage by some tenants of the Center as
compared to others. accordingly, Landlord may in Landlord's sole discretion,
and at any time during the initial or any extended term hereof, request that
Tenant purchase, install and maintain Tenant's own water motor ("Promises
Meter'), to be used exclusively by Tenant. Additionally, Tenant shall have
the right, subject to prior approval of Landlord, to elect to convert Tenant's
water use from said Tenant Meter system to Tenant's own Premises Meter. In
the event Tenant installs a Premises Meter as described herein, whether at the
request of Landlord or by election of Tenant, then Tenant shall no longer be
included in the prorata allocation of expenses relating to the operation and
use of the Tenant Meter described in Paragraph 10.2 above, but shall remain
responsible for Tenant's Proportionate Share of such expense relating to said
House Meter described therein.
10.4 In the event Tenant installs a Promises Meter, whether at the request
of Landlord or Tenant's election, the purchase, installation and maintenance
of such Meter shall be at Tenant's sole cost and expense, and Tenant shall be
responsible for compliance with all applicable laws, ordinances and building
codes with respect thereto. Tenant shall arrange for such Meter to be
properly registered with the appropriate branch of the Department of Water and
Power or such other governmental authority having regulatory jurisdiction over
the same, and all billing invoices, security deposits and other requirements,
records or correspondence relating to said Meter shall be the responsibility
of and in the name of Tenant. Landlord shall cooperate with Tenant to the
extent reasonably necessary to provide for the installation of said Premises
Meter in cases where such a Meter is installed, including provision of the
water meter housing unit for such Premises Meter, the water lines leading from
such housing unit, through the manifold system, to the Premises, and access to
such are to assist in the installation of said Premises Meter.
11. REAL PROPERTY TAXES.
11.1 Tenant shall pay to Landlord all real property taxes applicable to
the Premises during the term(s) of this Lease. Such taxes shall be due and
payable by Tenant before delinquency, but in no event later than ten (10) days
following Tenant's receipt of a statement notifying Tenant that such taxes are
due and the amount of such taxes. If Tenant shall fail to pay any such taxes,
Landlord shall have the right to pay the same, in which case Tenant shall
repay such amount to Landlord with Tenant's next rent installment together
with interest at the rate specified in Article 25 (interest and Late Charges)
11.2 As used herein, the term 'real property tax' shall include any form
of assessment, license fee, commercial rental tax, value added tax, levy,
penalty, traffic mitigation fee, or tax (other than inheritance or estate
taxes and income taxes), imposed by authority having the direct or indirect
power to tax, including any city, county, state or federal government, or any
school, agricultural, lighting, draining or other improvement district
thereof, as against any legal or equitable interest of Landlord in the
premises or in the real property of which the Premises are a part, as against
Landlord's right to rent or other income therefrom, or as against Landlord's
business of leasing the definition of real property tax.
11.3 Tenant may contest the legal validity or amount of any taxes,
assessments or charges for which Tenant is responsible under this Lease, and
may institute such proceedings as Tenant considers necessary. If Tenant
protests any such tax, assessment or charge, Tenant shall pay under protest,
and in the event Tenant shall fail to pay then Tenant shall indemnify and hold
Landlord and the Premises harmless from and against any claim or lien against
Landlord or the Premises arising out of Tenant's failure to pay the contested
taxes, assessments or charges. In the event of such contest, Tenant shall
post such security or take such other measures as Landlord may require to free
Landlord's title of the lien of such taxes and assessments.
11.4 Tenant shall furnish to Landlord, before the date when any tax,
assessment or charge would become delinquent, but in no event later than ten
(10) days following Landlord's written request therefore, receipts or other
appropriate evidence establishing their payment. Upon execution hereof, or
any time during the existence of this Lease, Landlord shall have the right,
upon (10) days prior written notice to Tenant, to elect to treat Tenant's tax
payment obligations hereunder in the same manner and as being subject to the
same payment timing requirements as Tenant's payment obligations with respect
to Tenant's estimated Common Area expenses paid monthly along with Minimum
Rent as more specifically set forth in Article 19 hereof.
11.5 All payments of taxes or assessments, or both, shall be prorated for
the initial Lease year and for the year in which this Lease expires or is
terminated, based on the number of days in the tax year in question during
which the term of this Lease is in effect.
11.6 Tenant acknowledges and understands that in the event Landlord should
al any time in the future sell the Premises, then pursuant to the California
Constitution, Paragraph XIIA (Proposition 13, Jarvis-Gann Initiative) there
would probably be a substantial increase in the real property taxes assessed,
which would be prorata, borne and payable by Tenant. Landlord makes no
representations, statements or warranties to Tenant, expressly or implied,
that it will not sell, transfer, or otherwise effectuate a beneficial change
in ownership of the Premises or the Center at any time in the future during
the term or any extended term of this Lease, and Landlord reserves the right
to do so at its option.
11.7 If the Premises and/or building, of which they are a part, are not
separately assessed, Tenant shall pay that portion of the total tax which is
equivalent to the ratio that the floor area of the Premises bears to
the floor area of the building that are covered by the tax bill.
12. PERSONAL PROPERTY AND BUSINESS TAXES.
12.1 Tenant shall pay, prior to delinquency, all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all other personal
property of Tenant contained in the Premises. When possible, Tenant shall
cause said trade fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of
Landlord.
12.2 If any of Tenant's said personal property shall be assessed with
Landlord's real property, Tenant shall pay the taxes attributable to Tenant
five (5) days prior to the delinquency date for such payment of taxes.
Tenant hereby grants to Landlord a security interest in said personal property
as collateral and security for the performance of Tenant's obligations to pay
said real and personal property taxes hereunder, as well as for the
performance of any and all of Tenant's other obligations hereunder. Tenant
shall not remove from the Premises or assign, sell or otherwise encumber
any such personal property during any period in which Tenant is in default
hereunder. Under Landlord's request, Tenant shall cooperate with Landlord and
execute and deliver such documents to Landlord as may be reasonably required
to perfect such security interest.
12.3 Tenant shall pay, no less than five (5) days prior to delinquency,
all special taxes and assessments of license fees levied, assessed or imposed
by any governmental agency, by reason of Tenant's particular use of the
Premises. Upon termination of this Lease, if Tenant shall fail to remove all
such personal property from the Premises prior to date of such termination,
Landlord may, at its option, remove the same in any legally permissible
manner that Landlord shall choose, and Landlord may store said personal
property without liability to Tenant for loss thereof. Tenant agrees to pay
Landlord immediately upon demand any and all expenses incurred by Landlord in
connection with such removal, including court costs and attorney's fees, as
well as storage charges for such personal property for any length of time
that the same shall be so stored whether or not in Landlords possession, or
alternatively, Landlord may at its option, without notice, sell said personal
property, or any portion thereof, at a private sale and without legal process,
for such price as Landlord may obtain, and apply the proceeds of such sale to
any amounts due under this Lease from Tenant and to the expenses incident to
the removal and sale of said property.
13. INDEMNITY AND DAMAGES.
13.1 Tenant shall indemnify and hold harmless Landlord from and against
any and all claims arising from Tenant's use of the Premises, or from the
conduct of Tenant's business, or from any activity, work or things done,
permitted or suffered by Tenant in or about the Premises, and shall further
indemnify and hold Landlord harmless from any and all claims arising from any
breach or default in performance of any obligation on Tenant's part to be
performed under the terms of this Lease, or arising from any act or negligence
of Tenant's, or any of Tenant's agents, contractors, customers, licensees, or
employees, and from and against all costs, attorney's fees, expense and
liability incurred in the defense of any such claim or any action or
proceeding brought thereon; and in case any action or proceeding be brought
against Landlord by reason of any such claim. Tenant, upon written notice
from Landlord, shall defend the same, at Tenant's expense, by counsel
reasonably satisfactory to Landlord. Tenant, as a material part of the
consideration to Landlord, hereby assumes all risk to property or injury to
persons in, upon or about the Premises arising from any cause and Tenant
hereby waives all claims, in respect thereof against Landlord, except to the
extent otherwise provided in Paragraph 13.3 hereof.
13.2 Tenant hereby agrees that Landlord shall not be liable for injury to
Tenant's business, or any loss of income therefrom, or damage to the goods,
wares, merchandise or other property of Tenant, Tenant's employees, invitees,
customers, or any other person in or about the Premises or any other
consequential damage, nor shall Landlord be liable for injury to the person of
Tenant, Tenant's employees, agents or contractors, whether such damages or
injury is caused by results from fire steam, electricity, gas, water or rain
from the breakage, leakage, obstruction or other defects of pipes, sprinklers,
wires, appliances, plumbing, air conditioning or lighting fixtures, or from
any other cause, whether the said damage or injury results from conditions
arising upon the Premises or upon other portions of the building of which the
Premises are part, or from other sources or places where the resulting damage
or injury occurs on or about the Premises, and regardless of whether the cause
of such damage or injury, or the means of repairing the same, is inaccessible
to Tenant. Tenant agrees to give Landlord prompt notice of any such damage
injury, including details as to the persons involved, the nature and extent or
any such damage or injury, including details as to the persons involved, the
nature and extent of any such damage or injury, a statement of existing or
potential claims relating thereto, and other relevant information concerning
any such damage or injury. Landlord shall not be liable for any damages
arising from any act or neglect of any other tenant, if any, of the building
in which the Premises are located, and Tenant agrees to promptly report any
such damages to Landlord. Landlord shall not be liable for interference with
light, air or other similar benefits. Landlord shall not be liable for any
damage to property entrusted to employees of the Center, not for the loss
of, or damage to, any property, by theft or otherwise, nor for any injury or
damage to person, property or Tenant's business, resulting from construction,
repair or alteration of the Premises, improvements adjoining the Premises or
any other portion of the Center. Nor shall Landlord be liable for any damage
caused by acts or omissions of other tenants, occupants, or visitors of the
Center.
13.3 Nothing in Paragraph 13.1 or 13.2 shall be constructed as a waiver by
Tenant as against Landlord of, or as an agreement by Tenant to indemnify or
hold Landlord harmless from or against, any claims, costs, attorney's fees,
expenses, liabilities, damages, losses or injuries caused by the willful or
negligent act or omission of Landlord. The provisions of Paragraph 13.1 and
13.2 shall survive any termination of this Lease with respect to any
obligations hereunder occurring prior to such termination.
14. INSURANCE.
14.1 Tenant shall, at Tenant's expense, obtain and keep in force, during
the term of this Lease, a policy of Combined Single Limit, Bodily Injury and
Property Damage Insurance, insuring Landlord and the Tenant against liability
arising out of the ownership, use, occupancy or maintenance of the Premises
and all areas appurtenant thereto. Such insurance shall be in amount not less
than two million and no/100 ($2,000,000) dollars. Such policy contain a
cross liability clause and shall, to the extent not specifically excluded by
the Standard form policy, insure performance by Tenant of the indemnity
provisions of Article 13 (indemnity). The limits of said insurance shall not,
however, limit the liability of Tenant hereunder. If Tenant shall fail to
procure and maintain said insurance, Landlord may, but shall not be required
to, upon not less than than (10) days prior written notice to Tenant, procure
and maintain the same, but at the expense of Tenant. Not more frequently than
once each five years, if in the reasonable opinion of Landlord, the amount of
Liability insurance required hereunder is not adequate in comparison to that
carried for comparable properties of similar usage in the community in which
the Premises are located, Tenant shall increase said insurance coverage as
reasonable required by Landlord; provided, however, that in no event shall the
amount of liability insurance increase be more than fifty (50%) percent
greater than the amount thereof during the immediately preceding five (5) year
period of the terms of this Lease. However, the failure of Landlord to
require any additional insurance coverage shall not be deemed to relieve
Tenant from any obligations under this Lease.
14.2 Landlord shall, at Landlord's option, obtain and maintain a policy or
policies of insurance covering loss or damage to the Premises in an amount
sufficient to meet all applicable co-insurance requirements but in no event
less than ninety (90%) percent of the full replacement value of the Premises
(excluding co-insurance requirements but in no event less than ninety (90%)
percent of the full replacement value of the Premises (excluding foundations)
as the same may exist from time to time, including protection against all
perils included within the classification on fire,extended coverage,
vandalism, malicious mischief, special extended perils (all risk) and
sprinkler leakage, including earthquake. Only Landlord and any of Landlord's
mortgage holders will be the sole parties insured, billing Tenant for Tenant's
Proportionate Share of such insurance and any deductible amounts (in the event
of loss) as an expense of maintaining the Center as set forth in Article 18
(Maintenance of Parking and Common areas).
14.3 During the term of this Lease, Tenant shall keep and maintain a
policy of rental interruption insurance with Landlord as the insured, which
policy shall provide for payment to Landlord of a sum equal to 1.00 times the
Minimum Rent, plus the average monthly Percentage Rent over the preceding one
year, as described in Paragraph 3.1 (Minimum Rent) and 3.2 (Percentage Rent),
hereof, for a term of not less than six (6) months after any casualty or
destruction which results in interference with Tenant's business operations.
14.4 Insurance required of Tenant hereunder shall be issued by established
and reputable companies acceptable to Landlord. The insurance company must be
authorized and admitted to do business in California and must have an A.M.
Best rating of "A+." Tenant shall deliver to Landlord copies of policies of
such insurance, or certificates evidencing the existence and amounts of such
insurance, with loss payable clauses satisfactory to Landlord, which copies
shall be delivered no later than ten (10) days following Tenant's taking
possession of the Premises, showing coverage to be effective as of the date of
such possession. No such policy shall be cancelable or subject to reduction
of coverage, or other modification except after thirty (30) days prior written
notice to Landlord. Tenant shall, within thirty (30) days prior to the
expiration of such policies, furnish Landlord with renewals or "binders"
thereof or Landlord may order such insurance and charge the cost thereof to
Tenant, which amount shall be payable by Tenant upon demand. Tenant shall
not do or permit to be done anything which shall invalidate the insurance
policies referred to in this Article 14.
15. HAZARDOUS MATERIALS.
15.1 TENANT'S OBLIGATIONS. Tenant shall, with respect to its use and
occupation of the premises, under this Lease, comply with the conditions below
as follows:
15.2 Hazardous Materials:
(a) Compliance with Environmental Laws: Tenant shall, as to
materials actually use by tenant in the operation of its business on the
Premises, at all times and in all respects comply with federal, state and
local laws, ordinances and regulations (hereinafter "Hazardous Materials
Laws") relating to industrial hygiene, environmental
protection or the use, analysis, generation, manufacture, storage, disposal or
transportation of anyoil, flammable explosives, asbestos, urea formaldehyde,
radioactive materials or waste, or other hazardous, toxic, contaminated
orpolluting materials, substances or wastes, including, without limitation,
any "hazardous substances', 'hazardous waste', "hazardous materials', or
'toxic substances" under any such laws, ordinances or regulations. All of the
materials and substances referred to in the preceding sentence of this
paragraph are hereinafter referred to as the "Hazardous Materials".
(b) Hazardous Material Handling: Tenant shall, as to materials used by
Tenant in the operation of its business on the Premises, at its own expense,
procure and maintain in effect and comply with all conditions of any and all
permits, licenses and other governmental regulatory approvals required for
their use on the Premises, including, without limitation, discharge of
(appropriately treated) materials or wastes, including but not limited to
Hazardous Materials. Tenant shall cause any and all Hazardous Materials
removed from the property to be removed and transported solely by duly
licensed facilities for final disposal of such materials and wastes. Tenant
shall in all respects handle, treat, deal with and manage any and all
Hazardous Materials, in, on, under or about the Premises in total conformity
with all applicable Hazardous Materials Laws and prudent industry practices
regarding management of such Hazardous Materials. Upon expiration or earlier
termination of this Lease, Tenant shall cause all Hazardous Materials to be
removed from the Premises and transported for use, storage or disposal in
accordance and compliance with all applicable Hazardous Material Laws. Tenant
shall not take any remedial action in response to the presence of any
Hazardous Materials in or about the Premises, nor enter into any settlement
agreement, consent decree or other compromise in respect to any claims
relating to any Hazardous Materials in any way connected with the Premises,
without first notifying Landlord of their intention to do so and affording
Landlord ample opportunity to appear, intervene or otherwise appropriately
assert and protect Landlord's interest with respect thereto. If Landlord
undertakes in any manner to protect its interests, Tenant shall pay for costs
associated with such action, including but not limited to attorney fees and
investigation fees in addition to any other indemnification provided by Tenant
pursuant to this Lease.
(C) Notices: Tenant shall immediately notify Landlord in writing of:
(1) any enforcement, cleanup, removal or other governmental or regulatory
action instituted, completed or threatened pursuant to any Hazardous Materials
Laws; (2) any claim made or threatened by any person against Tenant or the
lease property relating to damage, contribution, cost recovery compensation,
loss or injury resulting from or claimed to result from any Hazardous Material
and (3) any reports made to any environmental agency arising out of or in
connection with any Hazardous Materials in or removed from the Premises,
including any complaints, notices, warnings, or asserted violations in
connection herewith. Tenant shall also supply to Landlord as promptly as
possible, any in any event within five (5) days after Tenant first receives or
sends the same, copies of all claims, reports, complaints, notices, warnings
or asserted violations relating in any way to the lease property or Tenant's
use thereof. Tenant shall promptly deliver to Landlord copies of hazardous
waste manifests reflecting the legal and proper disposal of all Hazardous
Materials removed from the Premises.
15.3 Indemnification Related to Hazardous Materials:
Tenant shall indemnify, defend (by counsel reasonably acceptable to
Landlord), protect, and hold Landlord, its employees, agents, attorneys,
successors and assigns, free and harmless from and against any and all claims,
liabilities, penalties, forfeitures, losses or expenses (including attorneys'
fees) or death or injury of any person or damage to any property whatsoever,
arising from or cause in whole or in part, directly or indirectly, by the
presence in, on, under or about the Premises, or discharge in or from the
Premises, of any Hazardous Materials resulting from Tenant's use, analysis,
storage, transportation, disposal, release, threatened release, discharge or
generation of Hazardous Materials to, in, on, under, about or from the
Premises. Tenant obligation hereunder shall include, without limitation, and
whether foreseeable or unforeseeable, all costs of any required or necessary
repair cleanup or detoxification or decontamination of the Premises, and the
preparation and plans in connection therewith, and shall survive the
expiration or earlier termination of the term of this Lease. For purposes of
the release and indemnity provisions hereof, any acts or omissions of Tenant,
or by employees, agents, assignees, contractors or subcontractors of Tenant,
or others acting for on behalf of Tenant (whether or not they are negligent,
intentional, willful or unlawful), shall be strictly attributable to Tenant.
15.4. In addition to any other inspection or access right of the Landlord's
contained in this Lease, Tenant hereby gives the Landlord the right and
authority to allow, without notice to the Tenant, any federal, state, or local
agency access to the Premise to inspect solely for compliance with, or
violation of, any applicable Hazardous materials Law. The Tenant shall pay
for any costs associated with such inspection if the inspection reveals any
violation of the law. In the event that the Tenant is in full compliance with
the applicable laws, the Landlord shall pay for any costs associated with a
Landlord initiated inspection. Nothing contained in this paragraph shall be
construed in any manner to limit in any way the Tenant's duties under any
Hazardous Materials Laws to consent to, allow and/or pay for government
inspections of the Premises and/or the Tenant's business and business
operations.
16. WAIVER OF SUBROGATION.
Tenant hereby waives, as against Landlord, and against the officers,
employees, agents and representatives of the Landlord, any and all right to
recovery for any and all losses and damages insured against fire and extended
coverage insurance policy, including Tenant's policy described in Paragraph
14.2, in force at the time of any such loss or damage. Tenant shall upon
obtaining the policies if insurance required hereunder, give notice to the
insurance carrier or carriers that the foregoing waiver of subrogation is
contained in the Lease.
17. DAMAGE, DESTRUCTION AND RESTORATION.
17.1 DUTY TO RESTORE. If the improvements on the Premises are partially
or totally damaged by fire or other casualty so as to become partially or
totally untenantable, which damage is insured against under any policy of fire
and extended coverage insurance then covering the damaged improvements, this
Lease shall not terminate and said improvements shall be rebuilt by Landlord
with reasonable diligence utilizing the proceeds of such insurance policy,
unless Landlord elects to terminate this Lease, as provided in Paragraph 17.2
(Election to Terminate). In the event such insurance proceeds are
insufficient to cover the cost of repair or rebuilding. Tenant shall, within
fifteen (15) days of receipt of notice therefor, contribute Tenant's prorata
share of the additional amount necessary to complete such repairs or
rebuilding.
17.2 ELECTION TO TERMINATE. If the improvements on the Premises are
damaged by an insured casualty to the extent of at least twenty-five (25%)
percent of their replacement cost (cost to repair or replace at the time of
loss without deduction for physical depreciation) during the term of this
Lease, other than during the last three (3) years of said term, or to the
extent of at least ten (10%) percent thereof during the last three (3) years
of said term, or to any extent by an uninsured cause at anytime during the
Lease term, or if, at any time, more than twenty-five (25%) percent or more of
the Common Area is so damaged, Landlord shall, within not more than ninety
(90) days after such damage, notify Tenant of Landlord's election to (a)
terminate this Lease, or (b) restore the improvements on the Premises (or
other areas, as the cause may be). If Landlord elects to repair or restore
the damaged improvements, then, with respect to the Premises, Landlord, (using
such insurance proceeds as shall be sufficient for the same), and Tenant, each
shall restore said damaged improvements in the same manner and to the same
extent as work was done by each of them in the original construction and
fixturizing of the improvements. If Landlord elects not to restore, as
aforesaid, this Lease shall terminate without further liability to the parties
hereto, on the date provided in and in accordance with the provision of
Paragraph 17.5, following the giving of said notice of election by Landlord,
If Landlord elects to restore or fails to give notice of its election, as
aforesaid, then this Lease shall remain in full force and effect.
17.3 RENT ADJUSTMENT. If this Lease is not terminated, as provided in
this Article 17, then, during the period of repair and restoration, the fixed
Minimum Rent shall be reduced but the Tenant shall be entitled to have the
proceeds of the rental interruption insurance, provided in Paragraph 14.3,
applied to such Minimum Rent obligations.
17.4 TIME LIMITATION. If the damage is such that in reasonable
contemplation it cannot be repaired within six (6) months from the date of its
occurrence then Landlord shall have the right to terminate this Lease on sixty
(60) day's notice to Tenant.
17.5 TERMINATION DATE. If this Lease is terminated in accordance with the
provisions of this Article 17, such termination shall become effective as of
the first day after the first calendar month after the occurrence of the
casualty causing the damage; provided, however, that Landlord shall be
entitled to a sum equal to 1.00 times the Minimum Rent for ensuing six (6)
month period as damages, which sum may, in whole or in part, be paid by the
proceeds of rental interruption Insurance, otherwise, the parties shall be
released from further obligation to each other hereunder from and after such
termination date except for items which have theretofore occurred and are then
unpaid.
17.6 WAIVER. In respect to any partial or total damage or destruction,
which Landlord is obligated or agrees to restore under any of the provisions
of this Lease, Tenant hereby waives the provisions of Section 1932 (2) and
1933 (4)of California Civil Code and any, related, similar or successor
provision of law, to the extent applicable hereto, if at all,and specifically
waives recovery for any inconvenience or annoyance occasioned by any such
damage, repair, reconstruction or restoration.
18.ASSIGNMENT AND SUBLETTING.
18.1 Tenant shall not, directly or indirectly, nor by operation of law,
assign this Lease, or any interest herein, and shall not sublet the demised
Premises or any part thereof, nor permit any other person or entity (the
Agents and servants of Tenant excepted) to occupy or use the demised Premises,
or any portion thereof, without first obtaining the written consent of
Landlord, which consent shall not be unreasonably withheld. Tenant
understands and agrees that Tenant's intended use of the Premises, as well as
Tenant's business expertise, financial strength and background, and planned
future business operations in and about the Premises are of a special and
unique value to Landlord, and constitute an important and valuable part of the
delicate and unique tenant mix which Landlord has attempted to establish
within the Center, and such things constitute material consideration to
Landlord for this Lease, and are hereby deemed to be valid and commercially
reasonable grounds for the exercise of Landlord's right to withhold its
consent to any proposed assignment or subletting under this Lease by Tenant.
Any assignment or subletting without the prior written consent of Landlord,
shall be voidable at the election of Landlord, which election can be made at
any time until six (6) months after Landlord is given written notice thereof.
Landlord's consent to any assignment or subletting shall not relieve Tenant
from each and all of Tenant's obligations hereunder, and Tenant shall continue
to remain jointly and severally liable hereunder with said assignee or
subtenant throughout the term or any extended term of this Lease.
18.2 Without limiting the generality of the foregoing, the sale or
exchange of thirty (30%) percent or more of the voting stock of Tenant, if
Tenant is a corporation, or the transfer of an interest or interests equal
to thirty (30%) percent or more in the capital of profits of Tenant (whether
accomplished by sale or exchange of partnership interests or by the admission
of new partners), if Tenant is a partnership, or the cumulative transfer of
partnership or stock interests in Tenant which effectively equal the foregoing
(including transfer of partnership, or the cumulative transfer of partnership
or stock interest in Tenant which effectively equal the foregoing (including
transfer of partnership interests followed by the incorporation of Tenant and
subsequent stock transfers, or transfers of stock followed by the liquidation
of Tenant and subsequent transfers of partnership interests) will be deemed to
constitute an assignment of Tenant's interest in this Lease subject to
Landlord's consent.
18.3 If Tenant desires at any time to assign or otherwise transfer this
Lease or to sublet the Premises or any portion thereof, Tenant must first
notify Landlord of such desire to do so and shall submit in writing to
Landlord (I) the name of the proposed subtenant or assignee; (ii) the nature
of the proposed subtenant's or assignee's business to be carried on in the
Premises; (iii) the terms and provisions of the proposed sublease or
assignment; and (iv) such financial information as Landlord may reasonably
request concerning the proposed subtenant or assignee.
18.4 As conditions precedent to Landlord's consent to any assignment
subletting or other transfer, Landlord may require all of the following (and
Tenant hereby expressly agrees that failure to satisfy any one of the
following conditions shall constitute a commercially reasonable basis for
Landlord withholding its consent to such assignment, subletting or other
transfer):
(a) Tenant shall provide Landlord with evidence reasonably
satisfactory to Landlord that such transfer will not devalue Landlord's
interest under this Lease, whether by degrading the quality of merchandising
in the Premises, decreasing the level of gross sales, or otherwise, including
evidence respecting the relevant business experience and financial
responsibility of the proposed transferee;
(b) Landlord shall be entitled to receive any additional rent or
other premium realized on any such sublease assignment or other transfer, and
Tenant acknowledges to be fair and reasonable;
(C) Any sublessee of part or all of Tenant's interest in the Premises
shall agree that in the event that Landlord gives such sublessee notice that
Tenant is in monetary default under this Lease, such sublessee shall
thereafter make all sublease or other payments directly to Landlord to cure
such monetary default, which payments will be received by Landlord without any
liability whether under the sublease or otherwise (except to credit such sums
against those due under the Lease ), and any sublessee shall agree to attorn
to Landlord or its successors and assigns should this Lease be terminated for
any reason, except that in no event shall Landlord or its successors or
assigns be obligated to accept such attornment; provided, however, that
nothing contained herein shall be deemed or constructed as such an attornment
unless Landlord specifically elects, in writing, for such treatment.
(d) Tenant shall not then be in default hereunder in any
respect;
(e) One executed copy of any and all written instruments
evidencing or relating to any such assignment, sublease or other transfer
shall be delivered to Landlord; and
(f) Tenant shall submit to Landlord the sum of five hundred
($500.00) dollars in connection with each proposed assignment or sublease as
consideration for Landlord's reviewing, processing and evaluating Tenant's
request for approval of such assignment or sublease. If Landlord's actual
costs and expenses, excluding overhead costs, exceed said $500.00 sum, Tenant
shall pay to Landlord such excess amount, within ten (10) days of Landlord's
written request to Tenant therefor, as a condition precedent to Landlord's
approval of any such assignment or sublease.
18.5 Notwithstanding any other provision hereof, in lieu of giving such
consent, Landlord may, at its election, elect to (I) construe such proposed
transfer as an offer to transfer the leasehold estate created hereby to
Landlord which may be accepted at any time within sixty (60) days after
receipt thereof, and if so accepted, such transfer to Landlord shall
automatically be deemed consummated on all terms and provisions set forth in
such proposed transfer (except that Landlord may further assign or otherwise
transfer such interest without Tenant's review or consent) or (ii) terminate
this Lease (or in the case of a proposed subletting or assignment of a portion
of the Premises, elect to terminate this Lease as respects that portion) upon
thirty (30) days advance written notice and release Tenant from any liability
under This Lease (as to that portion of the Premises involved) accruing after
the effective date of such termination.
18.6 Landlord's consent to any one transfer shall apply only to the
specific transaction thereby authorized and such consent shall not be
constructed as a waiver of the duty of Tenant or any transferee to obtain
Landlord's consent to any other or subsequent transfer or as modifying or
limiting Landlord's rights hereunder in any way. Landlord's acceptance
of rent directly from any subtenant, assignee or other transferee shall not be
constructed as Landlord's approval or consent thereto nor Landlord's agreement
to accept the attornment of any subtenant in the event of any termination of
this Lease.
19. MAINTENANCE OF PARKING AND COMMON AREAS.
19.1 Tenant shall pay to Landlord, as additional rent, Tenant's
Proportionate Share of the Common Area expenses, as hereinafter more
particularly described. Tenant's Proportionate Share shall be deemed to be
the ratio that the entire floor building area of the Premises exclusively
occupied by Tenant bears to the entire floor building area of the whole
of the Center rounded off to the nearest percentage point. Said areas are as
follows:
(a) Approximate Area occupied by Tenant: 2365 square feet
Approximate Tenant's Proportionate Share: (21.80%) percent. if
the real property taxes described in Article 1 1 (Real Property Taxes) are not
separately assessed (as provided in Paragraph 11.7), Landlord may include
said taxes (prorated over the tax year) as a Common Area expense.
19.2 Landlord covenants that the common areas and parking areas (sometimes
herein collectively referred to as 'Common Areas') now located in the Center,
shall at all times be available for the nonexclusive use of Tenant (except
as hereinafter provided) during the term of this Lease or any extension of the
term hereof; provided, that the condemnation or other taking by any public
authority, or sale in lieu or condemnation, of any or all of such areas, shall
not constitute a violation of this covenant. Landlord reserves the right from
time to time to change the entrances, exits, traffic lanes and the boundaries
and location of such areas; provided, however, that at all times the ratio
between improved and unimproved areas complies with applicable laws, and/or is
pursuant to required governmental certifications and approvals, to the extent
the same are applicable or required. Landlord shall have the right, at
Tenant's expense should Landlord so elect, to perform any and all construction
to, in or about the Common Areas, which it deems reasonable, for maintenance,
replacement, refurbishment, renovation or improvement of the Common areas,
other premises or the Center in general, and in connection therewith, Landlord
shall not be liable to Tenant by reason of an injury to or interference with
Tenant's business or property or for any other inconvenience or damages caused
thereby.
19.3 Landlord shall keep the Common Areas in a clean and orderly condition,
lighted and landscaped, and shall repair any damage to the facilities thereof.
19.4 It is understood and agreed that the word "expenses', as used herein,
shall be constructed to include but not limited to all sums expended by
Landlord in connection with said Common Areas (including administrative and
professional expenses) for all maintenance and repair, resurfacing, painting,
restriping, cleaning, sweeping and janitorial services, planting, landscaping,
lighting and other utilities, directional signs, markers, bumpers, security
costs, parking lot attendant charges, parking lot attendant charges, parking
lot equipment fees, real and personal property taxes and assessments or any
other governmental tax, charge or levy hereinafter imposed on or in respect
of any portion of said Common Areas, and including the cost of adequate public
liability and property damage insurance on the Common Areas (which shall be
carried and maintained by Landlord). Landlord shall also be entitled to a
ten (10%) percent overhead surcharge. Notwithstanding the foregoing, it at any
time Landlord is required by any rule, regulation or law (building
regulations), to make any changes, alterations, or improvements to the Common
Area or Promises or any portion of the Center (including, without limitation,
electrical, mechanical or other systems or components) ('required
alterations') but excluding required alterations attributable to Tenant's
specific use and occupancy of the Premises, which alterations shall
be Tenant's sole responsibility, all costs relating to such required
alterations fairly characterized as 'expenses', under generally accepted
accounting principles, shall be fully included in Landlord's reimbursable
Common Area costs in the year in which such charges accrue or in such year
that Landlord pays said charges, as Landlord shall elect, and if under
generally accepted accounting principles, any portion or all of such costs
must be allocated to capital improvements to be depreciated or amortized over
two (2) or more years, Landlord shall be entitled each year to include that
portion of such capital costs in Landlord's Common Area costs as Landlord's
accountant reasonably determines to be a fair estimate of the depreciation or
amortization which would be chargeable for such capital improvements during
such year, given a reasonable estimate of useful life. Landlord may, however,
cause any or all of said services to be provided by an independent contractor
or contractors.
19.5 Landlord shall furnish annual statements to Tenant setting forth the
expenses for maintaining to the Common Areas for the preceding annual period.
Landlord shall use its best efforts to furnish said annual statements to
Tenant within eighteen (18) months following the calendar year end Tenant
agrees to pay to Landlord its share of the Common Area expenses within three
(3) days of Tenant's receipt of such statement. Tenant shall pay to Landlord
on the first day of each calendar month, the sum of Six hundred Dollars and
00/100th ($600.00), representing estimated monthly Common Area expense
payments to apply toward Tenant's share of the Common Area expenses, and at
the expiration of each annual period or each quarterly period or at anytime
during said annual period at the sole option of Landlord, the current Tenant
shall pay to Landlord, Tenant's equal Proportionate Share of said expenses
less the monthly payments previously paid by Tenant or any previous Tenant of
the Premises. If at any time during a year Landlord determines that its
estimate is too low, Landlord may, but shall not be required to notify Tenant
of the revision of such estimate, and thereafter for the remainder of such
year, Tenant shall pay such estimated Common Area expenses based upon such
new estimate. Tenant and any assignee or sublessee of Tenant, if applicable,
understand and agree that the annual calculation and assessment of Tenant's
proportionate share of accrued but unpaid Common Area expenses for the
preceding lease year will most likely not correspond with the effective date
of the assignment or sublease involved, and that the current Tenant shall be
responsible for the payment of such accrued but unpaid Common Area expenses,
provided, however, that Landlord shall have the right to collect such expenses
on a joint and several basis, from Tenant and/or such assignee or sublessee of
Tenant, such collection rights shall be cumulative, and Landlord shall not be
forced to make an election concerning from whom such expenses are collected.
Upon Landlord's delivery to Tenant of the annual statement hereunder, Tenant's
estimated Common Area Maintenance payments from that point forward shall be
equal to the increased amount of its share of the actual expenses, as set
forth in said statement. By way of example, if Tenant's estimated Common Area
maintenance payments are $100.00 and Landlord delivers an annual statement
indicating that the actual Common Area Maintenance charges should have been
$200.00 Tenant's estimated Common Area Maintenance payments from that point
forward shall be equal to the increased amount, i.e., $200.00 until the next
statement is delivered by Landlord and so on, provided, however, that such
estimate as contained in any such annual statement may be updated and modified
at any time during a lease year, as herein above provided, and Tenant shall be
obligated to pay the most currently stated amount of such estimated Common
Area expenses. 19.6 Tenant, for the use and benefit of Tenant, its agents,
employees, customers, licensees, and subtenants, shall have the nonexclusive
right, in common with Landlord and other present and future owners, tenants,
and their agents, employees, customers, licensees and subtenants, to use said
Common Areas during the entire term of this Lease, or any extension thereof,
for ingress and egress, roadway, sidewalk and customer automobile parking.
Tenant, as the user of said Common Areas, agrees to comply with such
reasonable rules and regulations as Landlord may adopt from time to
time for the orderly and proper operation of said Common Areas. Such rules
may include but not be limited to the following:
(a) The regulation of the removal, storage and disposal of Tenant's
refuse and other rubbish, at the sole cost and expense of Tenant.
(b) The parking areas shall be for the exclusive use of the
customers of tenants in the Center. Landlord may, in Landlord's sole
discretion, give Tenant and the officers, agents and employees of Tenant,
or other tenants in the Center, permission to park their cars in designated
areas within the Center. Tenant shall not at any time park or permit
the parking of its trucks or vehicles, or the trucks or vehicles of its
suppliers. If any such car, truck or other vehicle is parked in any area
within the Center contrary to the foregoing provisions, Landlord may cause
the same to be towed to a public garage or other parking area and the expense
of such towing plus storage charges, will be paid by Tenant. Tenant further
agrees to hold Landlord and Landlord's agents free and harmless from all cost,
loss, expense or damages of any nature whatsoever arising out of or in any way
connected with such removal. In furtherance of such restrictions, Landlord
may designate from time to time parking areas for Tenant or its employees, and
Tenant shall furnish to Landlord the motor vehicle license plate number(s) of
itself and of all its employees within five (5) days after Landlord's
written request therefor. If required by law, Landlord may require parking
charges via parking meters, a validation system, or otherwise.
19.7 Should the Premises not be a part of a Center, or should said
Premises constitute the entirety of a Center, then Tenant shall have the
exclusive use of the areas described herein, and at the Landlord's option,
shall maintain, keep, repair and insure the same at Tenant's sole expense.
20. HOLDING OVER
Should Tenant, with Landlord's written consent, hold over after the
termination of this Lease, Tenant shall become a Tenant from month to month,
only upon each and all of the terms herein provided as may be applicable to
such month to month tenancy and any such holding over shall not constitute an
extension of this Lease. During such holding over, Tenant's Minimum Rent as
set forth in Paragraph 3.1 (Minimum Rent) of this Lease shall be one hundred
twenty-five (125%) percent of the sum of (I) the Minimum Rent then being paid,
plus (ii) the average monthly Percentage Rent paid during the prior year, it
applicable.
21. HOURS OF BUSINESS:CONDUCT OF BUSINESS.
Subject to the provisions of this Article 21, Tenant shall continuously,
during the entire time hereof, conduct and carry on Tenant's business in the
Premises. Tenant shall keep the Premises open for business and cause Tenant's
business to be conducted therein during the usual business hours of each and
every business day, for a minimum of eight hours per day, as is its customary
for businesses like character in the city in which the Premises are located to
be open for business; provided, however, that this provision shall not apply
if Tenant's business should be temporarily discontinued on account of strikes,
lockouts, or similar causes beyond the reasonable control of Tenant. Tenant
shall keep the Premises adequately stocked with merchandise and with
sufficient sales personnel to care for the patronage, and to conduct said
business in accordance with sound business practices.
In the event of breach by Tenant of any of the conditions in this Article 21,
contained, Landlord shall have, in addition to any and all remedies herein
provided, the right, at its option to collect, not only the Minimum Rent
herein provided, but additional rent at the rate of one-thirtieth (1/30th) of
the Minimum Rent herein provided for each and every day that the Tenant shall
fail to conduct its business as herein provided.
22. COMPETITION.
During the term of this Lease, Tenant covenants not to engage in conduct which
would diminish the gross revenues of Tenant's business operated within the
Premises, Including, but not limited to, the complete or partial ownership,
operation or control of any store or business within a radius of two (2) miles
of the Premises which is competitive with Tenant's permitted use under this
Lease. In the event that Tenant owns, operates or controls such a competing
store or business, then such store or business will be deemed to constitute a
portion of the Premises for the purposes of Paragraph 3-2 (Percentage Rent) if
such Paragraph is applicable hereunder, and Landlord will be entitled to
Percentage Rent on sales therefrom, or alternatively, Landlord may elect to
notify Tenant, in writing, to cease and resist any such competing conduct or
uses, and should Tenant fail to comply with such notice within ten (10) days
following Tenant's receipt of the same, Landlord may elect to terminate this
Lease upon not less than five (5) days written notice to Tenant.
23. DEFAULTS AND REMEDIES.
23.1 The occurrence of any one or more of the following events shall
constitute a material default and breach of this Lease by Tenant:
(a) The material falsity of any financial statements of Tenant or
any Guarantor of this Lease given to Landlord as an inducement to enter into
this Lease, or Tenant's failure, during the existence of this Lease, to
produce current financial statements as requested by Landlord or any lender of
Landlord, respecting the Center or the Premises, within ten (10) days
following Landlord's written request to Tenant therefor.
(b) The abandonment of the Premises by Tenant.
( c) The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due, where such
failure shall continue for a period of three (3) days after written notice
thereof from Landlord to Tenant. Such notice shall constitute notice under
California Code of Civil procedure Section 1161, if delivered as provided in
Section 1162 of the California Code of Civil Procedure, or any successor Code
Section. In the event Tenant so fails to make any such rental or other
payments as required hereunder, said written notice from Landlord may specify
and require that all such delinquent payments, at Landlord's option, shall
be tendered by Tenant to Landlord in the form of a cashier's check or money
order, as a condition precedent to Tenant's cure of such default.
(d) The failure of Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed
by Tenant, other than described in subparagraph (c), above, or as specifically
provided for elsewhere herein, where such failure shall continue for a period
of twenty (20) days after written notice thereof from Landlord to Tenant,
provided, however, that if the nature of Tenant's default is such that more
than twenty (20) days are reasonable required for its cure, then Tenant shall
not be deemed to be in default if Tenant commences such cure within said
twenty (20) day period and thereafter diligently pursues such cure to
completion.
(e) The making by Tenant of any general assignment for the benefit
of creditors.
(f) The filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within thirty (30) days).
(g) The appointment of a trustee or receiver to take possession of
all or substantially all of Tenant's assets located at the Premises, or of
Tenant's interest in this Lease.
(h) The attachment, execution or other judicial seizure of all or
substantially all of Tenant's assets located at the Premises, or of Tenant's
interest in this Lease, where such seizure is not discharged within thirty
(30) days.
(I) Failure to execute and deliver within three (3) days following
Landlord's request therefor the subordination agreement and/or estoppel
certificate referred to in Paragraph 28.5 and 28.10, respectively.
23.2 In the event of any such material default or breach by Tenant,
Landlord may at any time thereafter, with or without notice or demand and
without limiting Landlord in the exercise of any right or remedy which
Landlord may have by reason of such default or breach:
(a) Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default, including, but not limited to, loans
or other forms of financing, loss of other potential tenancies within the
Center, loss of sale or lease profits, and the like, the cost of recovering
possession of the premises; expenses of reletting, including necessary
renovation and alteration of the Premises; reasonable attorneys' fees; any
real estate commission actually paid; and the worth at the time of award
determined by the court having jurisdiction thereof of (i) the unpaid rent
which had been earned at the time of termination; (ii) 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 for the same period which the
Tenant proves could have been reasonably avoided; and (iii) the amount by
which the unpaid rent, for the balance of the term after the time of such
award, exceeds the amount of such rental loss for the same period that Tenant
proves could be reasonably avoided. The worth at the time of award of the
sums referred to in clauses (i) and (ii) above, shall be computed by
allowing interest from the due date at the rate provided in Article 25
(Interest and Late Charges).
The worth at the time of award of the amount referred to in clause (iii)
above, shall be computed by discounting such amount at the discount
rate of the Federal Reserve Bank of San Francisco at the lime of award plus
one (I%) percent. Landlord's rights hereunder shall be deemed subject to the
rights granted to Tenant under Civil Code Section 1951 et. seq. and each
applicable subsection thereof.
(b) Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant shall have abandoned the
Premises. 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 rent as it becomes due hereunder, pursuant to Section 1951.4 of
the California Civil Code or any similar, successor or related provision of
law.
Pursue any other remedy now or hereafter available to Landlord under
the laws of judicial decisions of the State of California.
(d) The term "rent' as used in this Article 23. shall mean Minimum
Rent and all other rental or additional rent payable pursuant to any other
section of this Lease. All such sums, other than Minimum Rent, shall be
computed on the basis of the average monthly amount thereof accruing during
the immediately preceding twelve (12) month period prior to default, except
that if it becomes necessary to compute such rent before such twelve (12)
month period has occurred, then on the basis of the average monthly amount
accruing during such shorter period.
23.3 In the event of Tenant's default, all of Tenant's fixtures,
equipment, improvements, alterations and other personal property shall remain
on the Premises, and during the period of such default, Landlord may take
exclusive possession of such items and may use them, free of charge or rent,
until all defaults have been cured, or may require Tenant to remove said items
from the Premises.
24. DEFAULT BY LANDLORD.
Landlord shall not be in default unless Landlord fails to perform obligations
required of Landlord within reasonable time, but in no event later than thirty
(30) days after written notice by Tenant to Landlord; provided, however, that
if the nature of Landlord's obligation is such that more than thirty (30) days
are required for performance, then Landlord shall not be in default if
Landlord commences performance within such thirty (30) day period and
thereafter diligently prosecutes same to completion.
25. INTEREST AND LATE CHARGES.
Tenant hereby acknowledges that late payment by Tenant to Landlord of rent or
other sums due hereunder will cause Landlord 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 on Landlord by the
terms of any mortgage or trust deed covering the Premises. Accordingly, if
any installment of rent or any other sum due from Tenant shall not be received
by Landlord or Landlord's designee within three (3) days after such amount
shall be due, Tenant shall pay to Landlord a late charge equal to ten (10%)
percent of such overdue amount. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the costs Landlord will
incur by reason of late payments by Tenant. Acceptance of such late charge
by Landlord shall in no event constitute a waiver of Tenant's default with
respect to such overdue amount, nor prevent Landlord from exercising any of
Landlord's other rights and remedies.
In addition to the foregoing late charge, any rent, additional rent or other
amount due from Tenant to Landlord under any provision of this Lease which is
not paid when due shall bear interest at the highest rate permitted by law,
but in no event exceeding fifteen (15%) percent from the due date until paid.
26. SAFETY AND HEALTH.
Tenant covenants at all times during the term of this Lease to comply with the
requirements of the Occupational Safety and Health Act of 1970, 29 U.S.C. #651
et. seq. and any analogous legislation in California (collectively the 'Act'),
to the extent that the Act applies to the Premises and any activities thereon.
Without limiting the generality of the foregoing, Tenant covenants to maintain
all working areas, all machinery, structures, electrical facilities and the
like upon the Premises in a condition that fully complies with the
requirements of Act, including such requirements as would be applicable with
respect to agents, employees or contractors of Landlord who may from time to
time be present upon the Premises (except to the extent that the particular
activities of such agents, employees or contractors of Landlord on
the Premises require safety precautions or alterations of the conditions of
the Premises beyond the requirements of such Act otherwise applicable lo the
Premises, in which event Tenant shall not be obligated to undertake or provide
any such additional safety precautions or alterations of conditions), and
Tenant agrees to indemnify and hold Landlord harmless from and against any
liability, claim or damages, arising therefrom, including without limitation,
reasonable attorney's fees and court costs incurred by Landlord in connection
therewith, which indemnity shall survive the expiration or termination of this
Lease.
27. CONDEMNATION, EMINENT DOMAIN.
27.1 DEFINITION. If there is any taking of, or damage to, all or part of
the Premises, or any interest therein because of the exercise of the power of
eminent domain or inverse condemnation, whether by condemnation proceedings,
or otherwise, or any transfer or any part hereof or any interest therein made
in avoidance thereof (all of the foregoing being hereinafter referred to as
'taking") before or during the term hereof, the rights and obligations of
the parties with respect to such taking shall be as provided in this Article
27.2 TOTAL CONDEMNATION. If there is a taking of all the Premises, this Lease
shall terminate as of the date of such taking.
27.3 PARTIAL CONDEMNATION. If twenty-five (25%) percent or more of the
floor area of the Premises shall be taken, either party shall be entitled to
terminate this Lease, or, if twenty-five (25%) percent or more of the floor
area of the building of which the Premises are a part shall be taken, Landlord
shall be entitled to elect to terminate this Lease; and the terminating party
shall give the other party written notice of such election not later than
thirty (30) days after the date Landlord delivers notice to Tenant that
possession or title to the portion of the Premises taken has vested in the
condemnor. If neither party gives such notice, or less than twenty-five (25%)
percent of the floor area of either the Premises or the building shall be
taken, this Lease shall remain in full force and effect and rent shall be
adjusted as provided in Paragraph 27.7 hereof.
27.4 COMMON AREA. If twenty-five (25%) percent or more of the Common Area
within a radius of two hundred (200') feet from the main entrance to the
Premises shall be taken, either party shall be entitled to elect to cancel and
terminate this Lease; and the terminating party shall give the other party
written notice of such election not later than thirty (30) days after the date
Landlord delivers notice to Tenant that possession or title to said portion of
the Common Area taken has bested in the condemnor. If neither party gives
such notice, or more than seventy-five (75%) percent of said portion of the
Common Area will be available after such taking, this Lease shall remain in
full force and effect. In no event shall Tenant have the right to terminate
this Lease if Landlord provides additional Common Area which, when combined
with the remaining Common Area provides Common Area which is at lease
seventy-five (75%) percent as large as said portion of the Common Area before
the taking (Applicable only to buildings within a Center).
27.5 TERMINATION DATE. If this Lease is terminated in accordance with the
provisions of this Article 27, such termination shall become effective as of
the date physical possession of the condemned portion is taken.
27.6 REPAIR AND RESTORATION. If this Lease is not terminated, as provided
in this Article 27, Landlord shall, at its sole expense, restore, with due
diligence, the remainder of the improvements occupied by Tenant, so far
as practicable, to a complete unit of like quality, character and condition as
that which existed immediately prior to the taking, provided that the scope of
the work shall not exceed the scope of the work done or to be done by
Landlord originally in constructing the Premises, and further provided that
Landlord shall not be obligated to expend an amount greater than that which
was awarded to Landlord for such taking.
27.7 RENT ADJUSTMENT. If this Lease is not terminated, as provided in
this Article 27, the fixed Minimum Rent shall be reduced by that portion which
the floor area taken from the Premises bears to Tenant's total floor area
immediately before the taking.
27.8 AWARD. The total and entire award or compensation in such
proceedings, whether for a total or partial taking, or for diminution in the
value of the leasehold or for the fee or for any other reason shall belong to,
and be the property of, Landlord; provided, that Tenant shall be entitled to
recover from the condemnor such compensation as may be separately awarded by
the condemnor to Tenant or recoverable from the condemnor by Tenant in its own
right for the taking of trade fixtures and equipment owned by Tenant in its
own right (meaning personal property, whether or not attached to real
property, which may be removed without injury to the Premises) and for the
expense of removing and relocating them, and for the loss of goodwill to the
extent that it is severally awardable.
28. GENERAL PROVISIONS.
28.1 FORCE MA.JEURE. If any party hereto shall be delayed or prevented
from the performance of any act required hereunder by reason of acts of God,
strikes, lockouts, labor troubles, inability to procure materials, restrictive
governmental laws or regulations or other cause without fault and beyond the
control of the party obligated (financial inability excepted), performance of
such act shall be excused for the period of the delay and the period for the
performance of any such act shall be extended for a period equivalent to the
period of such delay; provided, however, nothing in this Paragraph 28.1
contained shall excuse Tenant from the prompt payment of any rental or other
charge required of Tenant hereunder except as may be expressly provided
elsewhere in this Lease.
28.2 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.
28.3 COVENANTS AND CONDITIONS. Each provision of this Lease performable by
Tenant shall be deemed both a covenant and a condition.
28.4 BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof
restricting assignment or subletting by Tenant and subject to the provisions
cf Article 18 (Assignment and Subletting), this Lease shall bind the parties,
their personal representatives, successors and assigns. This Lease shall be
governed by the laws of the State of California; any action brought to enforce
or nullify this Lease or the provisions hereof (with the exception of unlawful
detainer actions which may but needs not be brought, in Landlord's sole
discretion, in the county in which the Premises are located) must be brought
in Los Angeles County, State of California and in no other forum.
28.5 SUBORDINATION. Tenant shall at any time and from time to time, and
within three (3)days following receipt of written notice from Landlord,
execute, acknowledge and deliver to Landlord a subordination agreement or
other form of writing evidencing Tenant's agreement to subordinate this Lease
and Tenant's rights hereunder to any ground lease, mortgage, deed of trust, or
any other hypothecation for security hereafter place upon the real property
of which the Premises are a part, and to any and all advances made on the
security thereof, and to all renewals, modifications, consolidations,
replacements and extensions thereof, but not to be disturbed if Tenant is not
in default and so long as Tenant shall pay the rent and observe and perform
all of the provisions of this Lease on Tenant's part to be performed, unless
this Lease is otherwise terminated pursuant to its terms. So long as Tenant
is not in default, the terms of this Lease shall not be affected by
foreclosure or other proceedings under any such mortgage or deed of trust, and
Tenant connection with such ground lease, mortgage, deed of trust or other
hypothecation for security.
28.6 ATTORNEY'S FEES. In the event of any litigation between Tenant and
Landlord to enforce any provision of this Lease or any right of either party
hereto, the unsuccessful party to such litigation shall pay to the successful
party all costs and expenses, including reasonable attorneys' fees, incurred
therein. If Landlord, through no fault of its own, is made a party to any
litigation relating to the subject matter covered by this Lease instituted by
or including reasonable attorneys' fees, incurred by it in connection
therewith. In addition thereto, Tenant agrees to pay Landlord's costs,
expenses and reasonable attorneys' fees with respect to:
(C) Any breach or default of Tenant which is cured prior to
litigation.
Landlord shall notify Tenant of the amount of such attorneys' fees, and Tenant
shall pay the same(as additional rent) within fifteen (15) days of such
notice.
28.7 LANDLORD'S ACCESS. Landlord and Landlord's agents shall have the
right to enter the Premises at reasonable times and upon reasonable notice to
Tenant for the purpose of inspecting the same and showing the same to
prospective lenders, tenants, or purchasers, or for purposes of construction
or repairing a portion of the Center (provided no such construction or repair
shall unreasonable interfere with Tenant's business) Landlord and Landlord's
agents shall also have the right to enter the Premises and make any repairs or
restoration as may be needed to maintain the Premises in the condition
required under Article 8 (Maintenance and Repairs) hereof, or to restore the
Premises after any damage, destruction or taking as provided in Articles 17
(Damage, Destruction and Restoration) and Article 27 (Condemnation; Eminent
Domain) hereof, but only upon a failure by Tenant to make such repairs or
restoration when required under the terms of Article 17 (Damage, Destruction
and Restoration) hereof.
28.8 MERGER. The voluntary or other surrender of this Lease by Tenant, or
mutual cancellation thereof, or a termination by Landlord, shall not work a
merger.
28.9 NET, NET, NET LEASE. Landlord and Tenant understand and agree that
this Lease is what is commonly known in the business as a "net, net, net
Lease.' Tenant recognizes and acknowledges, without limiting the generality
of any other terms or provisions of this Lease, that it is the intent of the
parties hereto that any and all rentals in this lease provided to be paid by
Tenant to Landlord, shall be net to Landlord, and any and all expenses
incurred in connection with the Premises and the Center, or in connection with
the operations thereon, including any and all taxes, assessments, in general
or special license fees, insurance premiums, increases in interest rates on
adjustable mortgage loans or other forms of variable rate financing which may
be maintained by Landlord from time to time with respect to the Center and/or
the Premises, public utility bills and costs of repair, maintenance and
operation of the Premises and the Center and all buildings, structures,
permanent fixtures and other improvements comprised therein, together with the
appurtenances thereto, shall be paid by Tenant, in addition to the rentals
herein provided for as Tenant's sole and exclusive proper costs and expenses.
28.10 ESTOPPEL CERTIFICATE. At any time, and from time to time, Tenant
shall within three (3) days after receiving a written notice from Landlord,
execute acknowledge and deliver to Landlord a statement in writing certifying
that this Lease is unmodified and in full force and effect (or if modified,
stating the nature of such modification and certifying that this Lease, as so
modified, is in full force and effect) and the dates to which the rental and
other charges are paid in advance, if any, and acknowledging that there are
not, to Tenant's knowledge, any uncured defaults on the part of Landlord
hereunder, or specifying such defaults if any are claimed. It is expressly
understood and agreed that any such statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of the real
property of which the Premises are a part. Tenant's failure to deliver such
statement within such time shall be conclusive upon Tenant that this Lease is
in full force and effect, without modification except as may be represented by
Landlord, that there are not uncured defaults in Landlord's performance, and
that not more than two (2) months rental has been paid in advance. In
furtherance of and without limiting the foregoing, Tenant hereby appoints
Landlord as Tenant's attorney-in-fact to prepare, execute and deliver on
Tenant's behalf such statement certifying the foregoing items.
Notwithstanding anything to the contrary set forth herein, Tenant's failure to
deliver such statement within such time shall be a material default and breach
of this Lease.
If Landlord desires to sell, finance or refinances the Premises, or any part
thereof, Tenant further agrees to deliver to any lender or purchaser
designated by Landlord, Tenant's financial statements for the immediately
preceding three (3) fiscal years of Tenant.
28.11 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 thereof.
28.12 TIME OF ESSENCE. Time is of the essence of each and every obligation
of Tenant hereunder.
28.13 CAPTION. Article and paragraph captions are not a part hereof.
28.14 INCORPORATION OF PRIOR AGREEMENTS/AMENDMENTS. This Lease
contains all agreements of the parties with respect to any matters mentioned
herein. No prior agreement or understanding pertaining to any matter
shall be effective. This Lease may be modified in writing only, signed by the
parties in interest at the time of the modification.
28.15 NOTICES. Any notices or other communication required or pertained
hereunder shall be in writing and shall be deemed to have been given, if
mailed or registered or certified postage, prepaid, on the date posted or if
personally delivered, when delivered addressed as follows:
To Landlord: Corolla Centers, Inc. c/o Centers Realty, Inc.
1511 Sawtelle Blvd., #222, Los Angeles, CA 90025
TEL: (310) 820-8099 FAX: (310) 820-5399
To Tenant: SUPERMAIL International, Inc
2201 Park Towne Circle, Suite 200
Sacramento, CA, 95825
TEL : (916) 483-1131
Each of the foregoing shall be entitled to specify a different address by
giving notice in writing here of to the other party
28.16 WAIVER. No waiver by Landlord of any provision hereof shall be
deemed a waiver of any other provision hereof or of any subsequent breach by
Tenant of the same or any other provision. Landlord's or Tenant's consent to
or approval of any subsequent act by Tenant or Landlord, as applicable. The
acceptance of rent hereunder by Landlord shall not be a waiver of any
preceding breach by Tenant of any provision hereof, other than the failure of
Tenant to pay the particular rent so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such rent.
Any such waiver by Landlord as referred to herein shall not be enforceable
against Landlord unless the same shall be evidenced in writing.
28.17 LANDLORD'S LIABILITY. The term "Landlord" as used herein, shall mean
only the owner or owners at the time in question, of the fee title to the
Premises. In the event of a transfer of such title, Landlord herein named (in
case of any subsequent transfers, the ten grantor) shall be relieved from and
after the date of such transfer, of all liability as respects Landlord's
obligations thereafter to be performed, provided that any security deposit in
the hands of Landlord or the grantor at the time of such transfer, in which
Tenant has an interest, shall be delivered to the grantee. The obligations
contained in this Lease to be performed by Landlord shall, subject to the
above, be binding on Landlord's successors and assigns, only during their
respective periods of ownership.
28.18 TRANSFER OF SECURITY DEPOSIT. In the event that Landlord sells the
real property of which the Premises is a part, Landlord may transfer and
deliver any security given by Tenant to secure the faithful performance
of the provisions of this Lease to the purchaser of the real property. Upon
such transfer being made, Landlord shall be exonerated from any further
liability with respect to said security. In the event of an assignment
or sublease consented to by Landlord the existing Tenant's interest in the
security deposit shall be deemed transferred to such assignee or sublessee (to
the prorata extent applicable), and any deficiency between such deposit and
the security deposit required of the then current Tenant under this Lease
shall be due and payable immediately upon Tenant's receipt of Landlord's
request therefor. Landlord shall not be interested in or involved with any
negotiations, disputes, or claims which may arise between Tenant and any such
assignee or sublessee of Tenant concerning reimbursement for said security
deposit.
28.19 RULES AND REGULATIONS. Tenant shall observe faithfully and comply
directly with the Rules and Regulations attached to this Lease and made a part
hereof, and such other rules and regulations as Landlord may from
time to time reasonable adopt for the safely, care and cleanliness of the
Center or the preservation of good order therein. Landlord shall not be
liable to Tenant for violation of any such Rules and Regulations, or for the
breach of any covenant or condition in any lease, by any other tenant in the
Center. Tenant shall not post or permit the placement of any signs,
advertisements or notices upon any exterior portion of the Premises (including
windows), except for an entrance door sign which shall be in style, form,
color, size and configuration approved by Landlord.
28.20 MUTUAL AGENCY/CO-TENANT. Each Tenant hereby appoints each remaining
Tenant as his, her or its agent, representative, and attorney in fact, to act
for and on behalf of said Tenant with respect to all matters relating to, or
arising from this Lease, the tenancy created hereby, the obligation herein set
forth, and the use and occupancy of the subject Promises, specifically
including, but not limited to the right to alter, modify, extend,
supplement and terminate this Lease, and the tenancy created hereunder. This
agency shall continue and is irrevocable at all times during the period that
the Premises are occupied by any Co-Tenant.
Tenant hereby appoints each remaining Tenant as his, her, or its agent for
service of legal process, and agent for service and receipt of notices and
other communications given or made under this Lease, as the case may be.
28.21 AUTHORITY OF TENANT. If any Tenant is a corporation, each individual
executing this Lease, on behalf of said corporation, represents and warrants
that he is duly authorized to execute and deliver this Lease on behalf of said
corporation, in accordance with the articles, bylaws and properly executed
resolution of the Board of Directors of said corporation that this Lease is
binding and obligatory upon said corporate Tenant, and shall deliver
to Landlord, within three (3) days after execution hereof, a corporate
resolution authorizing the execution of this Lease. Tenant hereby warrants
and represents that, as the corporate Tenant, if applicable, it is now, and
will continue during the term hereof to be, a corporation in good standing
under the laws of the state of incorporation of Tenant, and qualified to do
business in the state in which the Premises are located. If Tenant is a
partnership, each individual executing this Lease on behalf of said
partnership represents and warrants that he, she, or it is duly authorized to
execute and deliver this Lease on behalf of said partnership in accordance
with the terms and conditions of the partnership agreement, and shall deliver
the appropriate written partnership agreement, certificate of partnership, and
statement of partnership to Landlord concurrently with Tenant's execution of
this Lease.
28.22 NO INDUCEMENTS. TENANT WARRANTS AND REPRESENTS THAT THERE
HAVE BEEN NO REPRESENTATIONS OR STATEMENTS OF FACT WITH RESPECT TO THE
PREMISES, THE CENTER, THE SURROUNDING AREA OR OTHERWISE, WHETHER BY LANDLORD,
ITS AGENTS OR REPRESENTATIVES, ANY LEASING BROKER OR ANY OTHER PERSON, WHICH
REPRESENTATIONS OR STATEMENTS HAVE IN ANY WAY INDUCED TENANT TO ENTER INTO
THIS LEASE OR WHICH HAVE SERVED AS THE BASIS IN ANY WAY FOR TENANT'S DECISION
TO EXECUTE THIS LEASE, EXCEPT AS EXPRESSLY CONTAINED IN THIS LEASE.
28.23 NO CONDITIONAL PAYMENT. No payment by Tenant or receipt by Landlord
of a lesser amount than the total of all sums due hereunder shall be deemed to
be other than on account of the earliest stipulated rent, nor shall any
endorsement or statement on any check, other payments or any accompanying
letter be deemed an accord and/or satisfaction and Landlord may accept such
cash and/or negotiate such check or payment without prejudice to Landlord's
right to recover the balance of such rent or pursue any other remedy provided
in this Lease or otherwise, regardless of whether Landlord makes any notation
on such instrument of payment or otherwise notifies Tenant that such
acceptance, cashing or negotiation is without prejudice to any of Landlord's
rights.
28.24 NO OPTION. The submission of this Lease by Landlord, its agent or
representative for examination or execution by Tenant does not constitute an
option or offer from Landlord to Tenant to lease the Premises upon the
terms and conditions contained herein or a reservation of the Premises in
favor of Tenant, it being intended hereby that this Lease shall become binding
upon Landlord only upon Landlord's execution and delivery of this Lease to
Tenant. The receipt (which shall include the cashing, deposit or other
negotiation of checks, money orders and the like) of any monies by Landlord
which are tendered by Tenant along with a Tenant-executed copy of this Lease,
or at any time prior to Landlord's delivery of a fully executed copy of this
Lease to Tenant, shall not constitute an acceptance of Tenant's offer to lease
as contained herein.
28.25 NO CO-TENANCY REQUIREMENT. Landlord reserves the right to select the
mix of tenancies in the Center as Landlord, in the exercise of its sole
business judgment, shall determine to best promote the interest of the Center.
Tenant is not relying on the fact, nor does Landlord represent, that any
specific tenant or kind of tenant or number of tenants shall, during the term
of this Lease, occupy any space in the Center.
28.26 CENTER NAME CHANGE. Landlord reserves the right to change the name
of the Center from time to time during the term of this Lease.
28.27 BROKERS. In connection with this lease, Tenant warrants and
represents that it has no dealings with any Broker and that it knows of no
other person who is or might be entitled to a commission, finder's fee or
other like payment in connection herewith and does hereby indemnify and agree
to hold Landlord harmless from and against any and all loss, liability and
expenses that Landlord may incur should such warranty and representation
prove incorrect.
28.28 RECORDATION. Tenant shall not record this Lease without the prior
written consent of Landlord.
28.29 IRREVOCABLE OFFER TO LEASE. For and in consideration of Landlord's
final determination of Tenant's desirability as a tenant in the Center, which
determination shall include, without limitation, an investigation and
evaluation of Tenant's credit worthiness and financial strength, Tenant agrees
that by executing this Lease and delivering the same to Landlord, Tenant is
extending to Landlord an offer to enter into this Lease, which for the first
fourteen (14) days following execution and delivery of this Lease by Tenant to
Landlord said offer shall be irrevocable and thereafter, said offer shall
become revocable, upon written notice from Tenant to Landlord. In the event
Tenant so revokes said offer, or should Landlord notify Tenant of its
rejection of the same, Landlord shall thereafter promptly refund and return
all deposits and other monies tendered to Landlord by Tenant. Said refund
shall be without any obligation on the part of Landlord to pay Tenant interest
on said deposit monies held by Landlord, such interest, if any, being deemed
additional consideration to Landlord for such investigation and evaluation of
Tenant's credit worthiness and financial strength.
29. OPTION TO RENEW.
Provided Tenant Is not In default hereunder, Tenant shall have the right and
option to renew the term of the Lease from the date upon which it would
otherwise expire for two (2) five (5) year periods upon the same terms and
conditions as set forth in Paragraph 3.1 (c). If Tenant desires to exercise
Its option to renew, It shall do so by giving written notice of such election
no earlier than two hundred forty (240) days and no later than ninety (90)
days prior to the date on which this Lease would otherwise expire.
Provided Tenant Is not In default hereunder, at the end of the two (2) five (5
years option periods, Tenant shall have the right and option to renew the term
of the Lease for an additional two (2) five (5) year option at market rent,
thereafter yearly Increases as set forth I,n Paragraph 3.1 will apply. If
Tenant desires to exercise its additional option to renew, It shall do so by
giving written notice of such election no earlier than two hundred forty (240)
days and no later than ninety (90) days prior to the date on which the Lease
would otherwise expire.
30. This lease is subject of Landlord obtaining possession of suite A by
August 30, 1995.
31. Upon Tenant's execution of this lease, tenant shall pay security
deposit, first month's rent and Common Area Maintenance charges.
IN WITNESS WHEREOF, the parties have executed this lease as of the day and
year first above written.
TENANT:
SUPERMAIL INTERNATIONAL, INC.
UMBERTO UMBERTINO
LANDLORD:
COROLLA CENTERS, INC.
by Centers Realty, Inc.
LEASE
INDEX
1. TERM 1
2. DELIVERY OF POSSESSION 1
3. RENT 1
4. SECURITY DEPOSIT 2
5. BUILDING 2
6. COMMON AREAS 2
7. TAXES 3
8. USE OF PREMISES 4
9. UTILITIES SERVICES 4
10. REPAIRS AND MAINTENANCE, AND ALTERATIONS 4
11. INSURANCE 5
12. DAMAGE AND RESTORATION 6
13. EMINENT DOMAIN 6
14. INDEMNITY; WAIVER 6
15. SIGNS 7
16. RADIUS CLAUSE 7
17. TRADE FIXTURES 7
18. LIENS 7
19. RIGHT OF ACCESS 7
20. DELAYING CAUSES 7
21. ASSIGNMENT, SUBLETTING AND ENCUMBRANCE 7
22. NOTICES 8
23. SURRENDER OF POSSESSION 8
24. QUIET ENJOYMENT 8
25. SUBORDINATION 9
26. OFFSET STATEMENT 9
27. DEFAULT 9
28. INSOLVENCY 9
29. REMEDIES CUMULATIVE 10
30. ATTORNEY'S FEES 10
31. WAVIER OF DEFAULT 10
32. NO PARTNERSHIP 10
33. SUBTENANCIES 10
34. SUCCESSORS 10
35. REMOVAL OF FIXTURES 10
36. EFFECT OF CONVEYANCE 10
37. LANDLORD'S DEFAULT; NOTICE TO LENDER 10
38. CONSENT 11
39. INTERPRETATION 11
40. HOURS OF BUSINESS 11
41. LANDLORD'S RIGHT TO RELOCATE PREMISES 11
42. BROKER'S COMMISSIONS 11
43. CREDIT CHECK 11
44. NO OPTION 11
45. AGREEMENTS IN WRITING 11
46. CORPORATE RESOLUTIONS 11
47. ARTICLE HEADINGS 11
48. ENTIRE INSTRUMENT 12
LEASE
THIS LEASE is made as of the 1 st day of February, 1995, by and
between LARINA INVESTMENTS, INC. herein called Landlord, and
SUPERMAIL INTERNATIONAL, INC. (herein called Tenant;
WITNESSETH
That the Landlord, in consideration of the rent herein
specified to be paid by the Tenant and the covenants and conditions
herein set forth, does hereby lease to Tenant, and Tenant in
consideration of the premises and the covenants and conditions
herein set forth, does hereby hire from Landlord, those certain
premises (hereinafter referred to as the "premises") which are part
of a shopping center and commercial development (hereinafter
referred to as the "Shopping Center") located in the City of Santa
Ana in the County of Orange, State of California at the street
address of 229 & 231 E. 17th Street, Santa Ana, CA 92706. The
premises are more particularly described as a certain store as
delineated in Exhibit "A" attached hereto and made a part hereof.
Tenant acknowledges that Landlord, in Landlord's sole discretion,
may change the shape, size, location, number and extent of the
improvements shown on Exhibit "A" and may eliminate or add any
improvements to any portion of the Shopping Center. Landlord
reserves the absolute right to effect such other tenancies in the
Shopping Center as Landlord in the exercise of its sole business
judgement shall determine to best promote the interest of the
Shopping Center; Tenant does not rely on the fact nor does Landlord
represent that any specific tenant or number of tenants shall during
the term of this Lease occupy any space in the Shopping Center.
Landlord reserves to itself the use of the roof, exterior walls and
the area beneath the premises, which serve other parts of the
Shopping Center, in a manner and in locations which do not
unreasonably interfere with Tenant's use of the premises. This
Lease shall include parking and other rights as set forth in
Paragraph 6 hereof entitled "Common Area." This Lease is subject to
covenants, conditions, reservations, restrictions, easements,
rights, rights of way and other matters of record, if any, in the
office of the County Recorder of the County in which the premises
are located. This Lease is entered into and executed subject to the
covenants, conditions, rules and regulations hereinafter set forth
and both the Landlord and the Tenant herein, respectively, agree to
perform each and all of the covenants, conditions, rules and
regulations hereinafter contained to be by each, respectively,
performed as follows, to with.
1 . TERM: The term of this Lease shall commence on
February 1, 1995. Said term shall expire five (5) years after the
last day of the calendar month in which it so commences. As soon as
the commencement date of the term of this Lease has been determined
as provided in the aforementioned manner, the parties hereto shall
enter into a written agreement in which the date of commencement of
this Lease is specified. Provided it is not in default, Tenant
shall have the option to renew and extend the term hereof for two
(2) additional five (5) year periods. If Tenant wishes to exercise
such options, it must so notify Landlord in writing not less than
ninety (90) days nor more than one hundred eighty (180) days prior
to the expiration of the original (or extended) term hereof.
Failure of Tenant to notify Landlord in the manner set forth above
shall cause this option to renew to become null and void with no
notice to Tenant, and Landlord shall have no further obligation to
Tenant with respect to this option. The opening for business by
Tenant shall constitute acceptance of the demised premises by Tenant
and constitute recognition that the premises are in good condition
and repair. It is understood and agreed that should the
commencement date of the lease not occur on or before two (2) years
from the date hereof, this Lease shall thereupon be and become
automatically null and void and of no further force or effect
whatsoever.
2. DELIVERY OF POSSESSION: Notification by Landlord that the
demised premises are ready for possession shall constitute delivery
of possession. If Tenant occupies the premises prior to the
commencement date, Tenant's occupancy of the premises shall be
subject to all the provisions of this Lease. Early occupancy of the
premises shall not advance the expiration date of this Lease.
Tenant shall pay Base Rent and all other charges specified in this
Lease for the early occupancy period.
3. RENT: Tenant shall pay Landlord rent as follows:
A. Base Rent:
Two Thousand Six Hundred Sixteen and 60/1 00 Dollars ($261
6.60) per month for the first sixty (60) months. For the
first five (5) year option from February 1, 2000 to January
31, 2005, the rent for the leased premises for the first
year shall not exceed $2.73 per square foot plus NNN
charges. Thereafter, the rent shall adjust annually based
on adjustments in C.P.I. For the second five (5) year
option from February 1, 2005 to January 31, 201 0, the rent
for the leased premises shall be at "Market Value"
negotiated by Landlord and Tenant and as determined by
Landlord at its sole discretion for purposes of re-leasing
the premises to a third party at the time. Said value
shall be exclusive of Tenant's equipment, fixtures, and
personal property. Landlord shall, within thirty (30) days
of receipt of Tenant's notice to renew and extend, respond
to Tenant in writing with the "Market Value" rent and
any/all documents required to renew and extend the term
hereof. Failure of Tenant to execute said documents
without modification and to return them to Landlord for
execution within ten (10) days of Tenant's receipt thereof
may, at Landlord's option, cause this option to renew and
extend to become null and void.
B. Other Periodic Payments:
(1) (a) Real Property Taxes (See Section 7); (b)
Utilities (See Section 9); ( c) Insurance Premiums (See
Section 11); (d) Tenant's Initial Pro Rata Share of Common
Area 15.5% (See Section 6); (e) Impounds for Insurance
Premiums and Property Taxes (See Section 11); (f)
Maintenance, Repairs and Alterations (See Section 10).
C. Time and Manner of Payment: Upon execution of this
Lease, Tenant shall pay Landlord the Base Rent in the
amount stated in Paragraph 3A above for the first month
of the Lease Term. On the first day of the second month
of the Lease Term and each month thereafter, Tenant
shall pay Landlord the Base Rent, in advance without
offset, deduction or prior demand. The Base Rent shall
be payable at Landlord's address or at such other place
as Landlord may designate in writing. A late fee of ten
percent (10%) shall be charged if Tenant does not pay
Base Rent and Other Periodic Payments by the fifth day
of the month.
4. SECURITY DEPOSIT: Tenant shall deposit with Landlord
upon execution hereof the sum of NONE ($O) Dollars as security for
Tenant's faithful performance of Tenant's obligations hereunder. If
Tenant fails to pay rent or other charges due, hereunder, or
otherwise defaults with respect to any provision of this Lease,
Landlord may use, or retain all or any potion of said deposit for
the payment of any rent or other charge in default or for the
payment of any other sum to which Landlord may become obligated by
reason of Tenant's default, or to compensate Landlord for any loss
or damage which Landlord may suffer thereby. If Landlord so uses or
applies all or any portion of said deposit, Tenant shall within ten
(1 0) days after written demand therefor deposit cash with Landlord
in an amount sufficient to restore said deposit to the full amount
hereinabove stated and Tenant's failure to do so shall be a breach
of this Lease, and Landlord may at his option terminate this Lease.
Landlord shall not be required to keep said deposit separate from
its general accounts. If Tenant performs all of Tenant's
obligations hereunder, said deposit or so much thereof as had not
theretofore been applied by Landlord, shall be returned, without
payment of interest hereunder within fifteen (1 5) days after the
expiration of the term hereof, or after Tenant has vacated the
Premises, whichever is later.
5. BUILDING: Landlord shall Lease the store herein
demised, containing approximately 1246 square feet of store space in
the above referenced Shopping Center.
6. COMMON AREAS: Landlord shall make available at all
times during the term of this Lease on such portions of the Shopping
Center as Landlord shall from time to time designate or relocate
such automobile parking and other common areas as Landlord shall
from time to time deem appropriate. Tenant shall not have the
exclusive right during the term of this Lease to use the common
areas for itself, its employees, agents, customers, invitees and
licensees.
The term "common area" shall mean the portions of the
Shopping Center which have at the time in question been designated
and improved for common use by or for the benefit of more than one
tenant or concessionaire of the Shopping Center, including any of
the following (the specific recitation of which shall not be deemed
to limit the definition of "common area"); the land and facilities
utilized as parking areas; access and perimeter roads; truck
passageways (which may be in whole or in part subsurface); service
corridors and stairways providing access from store premises;
landscaped areas; exterior walks, arcades, stairways, elevators,
escalators and/or ramps; interior corridors, elevators, stairs,
arcades and/or balconies; directory equipment; wash rooms, comfort
rooms, drinking fountains, toilets and other public facilities; and
bus stations and taxi stands, but excluding any portion thereof when
designated by Landlord for a noncommon use, provided any portion of
the Shopping Center which was not included within common areas shall
be so included when so designated and improved for common use.
All common areas shall be subject to the exclusive control
and management of Landlord or such other persons or nominees as
Landlord may have delegated or assigned to exercise such management
or control, in whole or in part, in Landlord's place and stead. In
no event shall Tenant have the right to sell or solicit in any
manner in any of the common areas.
Landlord shall have the right to close, if necessary, all
or any portion of the common areas to such extent as may in the
opinion of Landlord's counsel be legally necessary to prevent a
dedication thereof or the accrual of any rights of any person or of
the public therein; to close temporarily all or any portion of the
common areas to discourage noncustomer use; to use portions of the
common areas while engaged in making additional improvements or
repairs or alterations to the Shopping Center; and to do and perform
such other acts in, to, and with respect to, the common areas as in
the use of good business judgement Landlord shall determine to be
appropriate for the Shopping Center.
Landlord shall have the right to increase the size of the
common areas, including the expansion thereof to adjacent property;
to reduce the common areas; to rearrange the parking spaces and
improvements on the common areas; and to make such changes therein
and thereto from time to time which in its opinion are deemed to be
desirable and for the best interests of all persons using the common
areas. Tenant agrees that it and its concessionaires, agents,
employees, and vendors, suppliers and other independent contractors
will use such access roads and will operate trucks and trailers
delivering merchandise to and from the premises upon and over such
access roads as are designated therefor by Landlord as a means of
ingress to and egress from the premises.
Landlord shall have the right to establish, and from time
to time to change, alter and amend, and to enforce against Tenant
and the other users of the common areas such reasonable rules and
regulations (including the exclusion of employees' parking
therefrom) as may be deemed necessary or advisable for the proper
and efficient operation and maintenance of the common area. Such
rules and regulations may provide, without limitation, the hours
during which the common areas shall be open for use. Landlord may,
if in its opinion the same be advisable, establish a system or
systems of validation or other type operation to control the parking
areas, including a system of charges against non-validated parking
checks of users. Tenant agrees to abide and conform; and to use its
best efforts to cause its customers, invitees and licensees to so
abide and conform.
It is understood that the employees of Tenant and the other
tenants of Landlord within the Shopping Center shall not be
permitted to park their automobiles in the automobile parking areas
which may from time to time be designated for patrons of the
Shopping Center. Landlord may, at Landlord's election, designate
space for employee parking either within the Shopping Center parking
area or in an area reasonably close thereto, which may be areas on
the public streets if allowed by the City in which the premises are
located. Landlord shall have the right to change such designated
parking area from time to time. Tenant and its employees shall park
their cars only in those portions of the parking areas, if any,
designated for that purpose by Landlord. Tenant shall furnish
Landlord with its and its employees' automobile license number with
fifteen (15) days after opening for business and Tenant shall
thereafter notify Landlord of any changes within five (5) days after
such change occurs. If Tenant or its employees fail to park their
cars in designated employee parking areas, then Landlord may charge
Tenant ten ($ 10.00) per day for each day or partial day per car
parked in any areas other than those so designated. Tenant hereby
authorizes Landlord to tow away from the Shopping Center at Tenant's
expense any improperly parked car or cars belonging to Tenant or
Tenant's employees and/or to attach violation stickers or notices to
such cars.
During the term of this Lease Landlord shall keep or cause
the common areas to be kept in a neat, clean and orderly condition,
properly lighted and landscaped, and shall repair any damage to the
facilities thereof, but all costs and expenses incurred by Landlord
in connection therewith shall be charged and prorated in the manner
hereinafter set forth. It is understood and agreed that the term
"costs and expenses incurred" shall mean all sums expended by
Landlord for payment of all work deemed necessary by Landlord for
the operation, maintenance, replacement and repair of the common
areas, including the following (the specific recitation of which
shall not be deemed to limit the definition of such costs and
expenses); resurfacing, restriping, cleaning and sweeping the
parking areas; trash removal; painting; janitorial services;
maintenance, repair and replacement when necessary of sidewalks,
curbs, bumpers, all Shopping Center signs, planting and landscaping,
and lighting and other utilities; operation, maintenance and repair
of any common fire protection systems, automatic sprinkler systems
and storm drainage systems; personnel to implement such services
including the cost of security guards; police and fire protection
services; any assessments imposed by governmental agencies; costs of
utility services; depreciation on maintenance and operating
machinery and equipment, if owned, and rental paid for such
machinery and equipment if rented; public liability and property
damage insurance on the common areas; Worker's Compensation
insurance for personnel; and an amount equal to fifteen percent (1
5%) of the aforementioned expenses for each calendar year to
Landlord for Landlord's administration and supervision of the common
areas.
Tenant shall pay to Landlord upon demand, but not more
often than monthly, Tenant's prorata share of the amount of all
costs and expenses incurred by Landlord as set forth in this
article. Tenant's prorata share shall be equal to the ratio which
the floor area of Tenant's premises bears to the total floor area of
all buildings and similar structured then constructed in the
Shopping Center. Landlord reserves the right to bill Tenant monthly
an estimated amount of all expenses to be incurred by Landlord under
this paragraph. In such event, Landlord shall provide Tenant with a
statement at the end of each calendar year setting forth all
expenses actually incurred and shall make any appropriate
adjustments.
Landlord shall keep accurate records for at least two (2)
years showing in detail all such costs and expenses incurred. The
manner in which the common areas shall be operated and maintained
and the expenditures therefor shall be in Landlord's sole
discretion. Landlord reserved the right to appoint a substitute
operator to operate and maintain the common area and may enter into
a contract therefor with such operator on such terms and conditions
and for such period or term as Landlord shall deem proper; and if
Landlord does so, the substitute operator rather than the Landlord
shall be entitled to receive the management fee provided above.
7. TAXES: Tenant agrees to pay Landlord its proportionate
share of all taxes levied and assessed during the term of this Lease
upon the land, buildings and personal property comprising the
Shopping Center including the common areas of the Shopping Center.
The share of taxes to be paid by Tenant shall be deemed to be the
product derived by multiplying the total of the taxes levied or
assessed against the Shopping Center by a fraction, the numerator of
which is the floor area (as defined in this Lease) contained in the
premises and the denominator of which is the total floor area
contained in the Shopping Center, exclusive of any portion of the
total floor area which may be assessed and taxed separately from the
portion of the Shopping Center in which the premises are located.
Tenant shall pay one-twelfth (1/12th) of the amount estimated by
Landlord to be Tenant's share of such taxes with each monthly
installment of minimum annual rent due hereunder. Following
Landlord's receipt of the applicable tax bill, Landlord shall notify
Tenant relative to any additional amount owing, and Tenant shall pay
such additional amount to Landlord with ten (10) days thereafter.
In the event Tenant's monthly tax payments exceed the taxes
attributable to the premises, such excess shall be credited against
Tenant's future tax obligations. Taxes for the first and last years
of the term hereof shall be prorated between Landlord and Tenant.
For the purposes of this Article, "taxes" shall include all
assessments for public improvements levied or assessed against the
Shopping Center; any tax assessed upon or measured by the rents
received by Landlord hereunder; any tax, fee or charge on the
operation and use of the Shopping Center and/or the common area
imposed by the United States Environmental Protection Agency or any
other federal, state or local governmental entity; and shall also
include any taxes or assessments which in the future may be imposed
upon Landlord in lieu of any presently imposed tax or assessment.
Tenant shall also pay before delinquency any and all taxes,
assessments, licenses fees and public charges levied, assessed or
imposed at any time and which become payable during the term of this
Lease upon Tenant's leasehold improvements, fixtures, equipment,
furniture, inventories or merchandise and any other personal
property installed or located on the premises whether or not such
assessment is made against Tenant or against Landlord, either
separately or as part of the assessment of the Shopping Center, and
whether installed by Landlord or by Tenant.
It is agreed and
understood that the term "taxes" as used herein shall not include
any franchise, excise, gift, estate, inheritance, succession,
capital levy or transfer tax of Landlord arising out of or in
connection with this lease or Landlord's rights in the premises, or
any net income, excess profits or revenue tax, charge or levy
against Landlord.
8. USE OF PREMISES: Tenant shall use the premises solely
for the purposes and under the trade name as follows:
Permitted use: Travel Agency, Check Cashing, Money Transfer, and
related
business
Trade name: SUPERMAIL INTERNATIONAL INC.
A. Tenant shall
not use or permit the premises to be used for any other purpose or
purposes or under any other trade name whatsoever without the
written consent of Landlord first had and obtained. Tenant further
covenants and agrees that it will not use or suffer or permit any
person or persons to use the premises or any part thereof for
conducting therein a secondhand store, auction, distress or fire
sale of bankruptcy or goingout-of-business sale, or for any use or
purpose in violation of the laws of the United States of America or
the State of California or the ordinances, regulations and
requirements of the City and County wherein the premises are
situated. Tenant further covenants and agrees that during the term
hereof the premises and every part thereof, shall be kept by Tenant
in a clean and wholesome condition, free of any objectionable
noises, odors or nuisances, and that all health and policy
regulations shall, in all respects and at all times, be fully
complied with by Tenant.
B. Tenant agrees that all trash and
rubbish of Tenant shall be deposited within receptacles and that
Tenant shall not cause or permit any trash receptacles to remain
outside the Building. In the event Landlord provides or designates
trash receptacles, Tenant agrees to cause such receptacles to be
emptied and trash removed at its own cost and expense. Tenant
agrees to first bag the trash before depositing it in the authorized
trash area. Landlord reserves the right to contract for trash
removal and bill Tenant for said service as provided in Article 6
herein.
C. Tenant may not display or sell merchandise or allow
carts, portable signs, devices or any other objects to be stored or
to remain outside the exterior walls and permanent doorways of the
premises. Tenant shall not permit any audible noise from any source
or device of any nature to be heard outside of the premises. Tenant
shall not place or authorize to have placed or affixed handbills or
other advertising materials on automobiles or buildings within the
Shopping Center.
D. Landlord agrees not to lease other
units in the shopping center to tenants operating check cashing and
money transfer services.
9. UTILITIES SERVICES: Tenant shall pay for all water,
gas, power and electric current and all other utilities used by
Tenant on the premises from and after the delivery of possession
thereof by Landlord. If any such charges are not paid when due,
Landlord may pay the same, and any amount so paid by Landlord shall
thereupon become due to Landlord from Tenant as additional rent.
Landlord shall have the option of requiring Tenant to install its
own meter, at its expense. In the event that any utilities are
furnished by Landlord, then and in that event the rates charged
Tenant shall not exceed those of the local public utility company as
if its services were furnished directly to Tenant, and shall not be
less than its prorata share of any jointly metered service based
upon the square footage of the buildings served. Landlord shall not
be liable for damages or otherwise for any failure or interruption
of any utility service being furnished with the premises, and no
such failure or interruptions shall entitle Tenant to terminate this
Lease or to abate payment of any portion of the rent due hereunder.
Nothing contained in this Lease shall limit Landlord in any way from
granting or using easements on, across, and under the Shopping
Center for the purpose of providing utility services.
10. REPAIRS AND MAINTENANCE, AND ALTERATIONS:
A. Tenant shall, during the term of this Lease, keep the
premises, including all improvements constructed by Tenant therein,
in good order, condition and repair, including the interior surface
of exterior walls; all windows, doors, door frames, and door
closures; all plate glass, storefronts and showcases; all carpeting
and other floor covering; all electrical equipment; all heating and
air conditioning equipment; and all plumbing and sprinkler systems,
if any, installed therein; and shall as necessary, or when required
by governmental authority, make modifications or replacements
thereof. Landlord shall have no obligation to repair or maintain
the premises or improvements constructed therein except as in this
Lease provided. Tenant hereby waives the right to make repairs at
Landlord's expense under the provisions of any laws permitting
repairs by a tenant at the expense of the Landlord (including
section 1942 of the Civil Code of the State of California) to the
extent allowed by law, in that Landlord and Tenant have by this
lease made specific provision for such repairs and have defined
their respective obligations relating thereto. Tenant expressly
agrees that the use of roof areas shall be limited to ingress for
maintenance purposes only, and that said roof areas shall not be
used for storage of inventory or for any other use.
B. If Tenant refuses or neglects to make repairs and/or
maintain the premises, or any part thereof, in a manner reasonably
satisfactory to Landlord, Landlord shall have the right, but shall
not be obligated, to make such repairs or perform such maintenance
on behalf of and for the account of Tenant. In such event, such
work shall be paid for by Tenant as additional rent promptly upon
demand. In the event of emergency repairs, Tenant hereby grant to
Landlord the right to enter upon the premises at any time.
C. Landlord shall keep in good order, condition and repair
the foundations, exterior walls (excluding the interior of all walls
and the exterior or interior of any windows, doors, plateglass and
display windows) and roof (excluding interior ceiling) of the
Building, except for any damage thereto caused by any act,
negligence or omission of Tenant, except for reasonable wear and
tear, and except for any structural alterations or improvements
required by any governmental agency by reason of Tenant's use and
occupancy of the premises. Landlord shall have the right, but shall
not be obligated to, contract with a service company for the
maintenance of the heating and air conditioning equipment for the
premises, on behalf of and for the account of Tenant. Tenant shall
reimburse Landlord for Tenant's prorata share of the cost which
Landlord incurs in performing its repairs and maintenance as
aforesaid, with respect to the Building. Said prorata share shall
be equal to the ratio which the floor area of Tenant's premises
bears to the total floor area of the Building. Tenant shall pay its
prorata share of such costs and expenses to Landlord within ten (10)
days after receipt of an invoice for the cost of same from Landlord,
provided however, if Landlord reasonably anticipates incurring such
costs during any calendar year during the term of this Lease,
Landlord may submit monthly billings to Tenant of the amount which
Landlord estimates to be Tenant's prorata share of same. In such
event, Tenant's actual share shall be computed as aforesaid and
appropriate adjustments shall be made following completion of such
maintenance and repair.
D. Tenant shall not make any alterations, additions,
changes or improvements (collectively called "improvements") to the
interior or exterior of the premises nor make any contract therefor
without first procuring Landlord's written consent. All
improvements, including floor coverings, made by Tenant to or upon
the premises, except light fixtures, signs, cases, counters or other
removable trade fixtures, shall at once when made or installed be
deemed to have become the property of Landlord; provided, however,
if prior to termination of this Lease, or within fifteen (15) days
thereafter, Landlord so directs by written notice to Tenant, Tenant
shall promptly remove the improvements which were placed in or on
the premises by Tenant and which are designated in said notice and
shall repair any damage occasioned by such removal, and in default
thereof Landlord may effect said removals and repairs at Tenant's
expense. All work with respect to improvements must be done in a
good and workmanlike manner and diligently prosecuted to completion
to the end that the improvements shall be performed and done
strictly in accordance with the laws and ordinances relating
thereto, and with the requirements of all carriers of insurance on
the premises and the Board of Underwriters, Fire Rating Bureau, or
similar organization. In performing the work of any such
improvements, Tenant shall have the work performed in such a manner
so as not to obstruct the access to the Shopping Center of any other
tenant in the Shopping Center. Before commencing any such work or
construction in or about the premises, Tenant shall notify Landlord
in writing of the expected date of commencement thereof. Landlord
shall have the right at any time and from time to time to post and
maintain on the premises such notices as Landlord deems necessary to
protect the premises and Landlord from the liens of mechanics,
laborers, materialmen, suppliers or vendors.
11. INSURANCE:
A. Use; Rate: Tenant shall not carry any stock of
goods or do anything in or about the premises which will in
any way tend to increase insurance rates on the building in
which the premises are located. In no event shall Tenant
carry on any activities which would invalidate any
insurance coverage thereon.
B. Liability and Property Damage Insurance:
(1) Tenant shall during the lease term at its sole expense
maintain in full force a policy or policies of comprehensive public
liability insurance issued by one or more insurance carriers,
insuring against liability for injury to or death of persons and
loss of or damage to property occurring in or on the premises and
any portion of the common area which is subject to Tenant's
exclusive control. Said liability insurance shall be in an amount
of not less than $ 1,000,000.00 combined single limit for bodily
injury and property damage.
(2) Landlord shall during the lease term maintain in full
force a policy or policies of comprehensive public liability
insurance issued by one or more insurance carriers, insuring against
liability for injury to or death of persons and loss of or damage to
property occurring in or on the common area, except any portion
thereof subject to Tenant's exclusive control. Said Liability
insurance shall be in an amount of not less that $1,000,000.00
combined single limit for bodily injury and property damage.
(3) Workmen's Compensation Insurance: Tenant shall at all
times maintain Workmen's Compensation insurance in compliance with
California law.
(4) Fire and Casualty Insurance: Landlord shall pay for
and shall maintain in full force and effect during the term of this
Lease a policy or policies of fire and casualty insurance which may
include endorsements of Landlord's selection, or any other coverage
required by Landlord's lender or government agency. Tenant shall
reimburse Landlord for its prorata share of the premium paid by
Landlord for such insurance within ten (10) days after delivery to
Tenant of an itemized statement therefore. Landlord reserves the
right to bill Tenant monthly and estimated amount of all expenses to
be incurred by Landlord under this paragraph. In such event,
Landlord shall provide Tenant with a statement at the end of each
calendar year setting forth all expenses actually incurred and shall
make an appropriate adjustments.
(5) Waiver of Subrogation: Each party ("insured") hereby
waives its right of recovery to the extent of insurance recovery
against the other party, the other party's officers, directors,
agents, representatives, employees, successors and assigns with
respect to any loss or damage, including consequential loss or
damage, to the insured's property caused or occasioned by any peril
or perils (including negligent acts) covered by any policy or
policies carried by the insured.
C. General Requirements:
(1) All policies of insurance required to be carried
hereunder by Tenant shall be written with companies satisfactory to
Landlord and licensed to do business in the State of California.
(2) Each policy of public liability insurance required to
be carried under paragraphs 1 1 -B-1 and 11 -B-2 shall provide that
it will be deemed primary and noncontributing with the insurance
carried by the other party.
(3) Each policy required under paragraphs 1 1 -B-1 shall
expressly include, severally and not collectively, as named or
additionally named insured thereunder, the other party and any
person or firm designated by the other party and having an insurable
interest thereunder, hereinafter called "additional insured," as
their respective interests may appear.
(4) Said insurance shall not be subject to cancellation or
reduction in coverage except upon at least ten (10) days' prior
written notice to each additional insured. The policies of
insurance or duly executed certificates evidencing them, together
with satisfactory evidence of the payment of premiums thereon, shall
be deposited with each additional insured at the commencement of the
term and not less than thirty (30) days prior to the expiration of
the term of such coverage. If the primary insured fails to comply
with this requirement, any additional insured may obtain such
insurance and keep it in effect, and the primary insured shall pay
to the additional insured the premium cost thereof upon demand with
interest from date of payment by the additional insured to the date
of repayment by the primary insured.
D. Blanket Insurance: Each party shall be entitled to
fulfill its insurance obligations hereunder by maintaining a
so-called "blanket" policy or policies of insurance in such form as
to provide by specific endorsement coverage not less than that which
is required hereunder for the particular property or interest
referred to herein.
12. DAMAGE AND RESTORATION:
A. Duty to Restore: If the improvements on the premises or
the Shopping Center are partially or totally damaged by fire or
other casualty so as to become partially or totally untenantable,
which damage is insured against under any policy of fire and
extended coverage insurance then covering the damaged improvements,
they shall be rebuilt by Landlord with due diligence at Landlord's
expense unless Landlord elects not to do so as provided in paragraph
1 2-B and fixed minimum rent only shall be abated until restoration
provided that if Tenant continues to conduct business in the
premises, said rent shall be abated in the proportion which the
untenantable portion bears to the entire premises before the damage
occurred.
B. Election to Terminate: If the improvements on the
premises or the Shopping Center, whether or no the premises are a
part thereof, are damaged for any cause whatsoever, whether insured
against or not, to the extent of at least twenty-five percent (25%)
of the then replacement cost during the term of this Lease or to the
extent of at least ten percent (10%) thereof during the last three
(3) years of said term, Landlord shall, within not more than ninety
(90) days after such damage, notify Tenant of Landlord's election to
terminate this Lease or to restore the improvements on the premises
and such portion of the improvements in the balance of the Shopping
Center as in Landlord's sole discretion is necessary to create an
economically feasible commercial unit. If Landlord elects to repair
or restore the damaged improvements, then with respect to the
premises, Landlord and Tenant each shall restore them in the same
manner and to the same extent as work was done by each of them in
the original construction and fixturizing of the improvements, and
the damaged improvements in the balance of the Shopping Center shall
likewise be restored to the extent required in the preceding
sentence. If Landlord elects not to restore as aforesaid, this
Lease shall terminate effective as of the date of such damage upon
the giving of notice of election by Landlord as aforesaid.
13. EMINENT DOMAIN: A. Definition: If there is any taking of or
damage to all or any part of the Shopping Center or any
interest therein because of the exercise of the power of
eminent domain, whether by condemnation proceedings or
otherwise, or any transfer of any part thereof or any
interest therein made in avoidance of the exercise of the
power of eminent domain (all of the foregoing being
hereinafter referred to as "taking") prior to or during the
term hereof the rights and obligations of the parties with
respect to such taking shall be provided in this paragraph
13. B. Total Condemnation: If there is a taking of all of
the premises, this Lease shall terminate as of the date of
such taking. C. Partial Condemnation: If twenty-five
percent (25%) or more of the ground floor area of all
buildings in the Shopping Center shall be taken whether
Tenant's premises are taken or not, Landlord shall be
entitled to elect to terminate this Lease; and the
terminating party shall give the other party written notice
of such election not later than thirty (30) days after the
date Landlord delivers notice to Tenant that possession or
title to the portion of the premises taken has vested in
the condemnor. If neither party gives such notice or less
than twenty-five percent (25%) of the ground floor area of
either Tenant's premises or buildings in the Shopping
Center shall be taken, this Lease shall remain in full
force and effect and rent shall be adjusted as provided in
paragraph 1 3-G. D. Parking Area: There is no assigned
parking spaces allocated to Tenant. E. Termination Date:
If this Lease is terminated in accordance with the
provisions of this paragraph 13, such termination shall
become effective as of the date physical possession of the
particular portion is taken. F. Repair and Restoration:
If this Lease is not terminated as provided in this
paragraph 1 3, Landlord shall at its sole expense restore
with due diligence the remainder of the improvements
occupied by Tenant so far as practicable to a complete unit
of like quality, character, and condition as that which
existed immediately prior to the taking, provided that the
scope of the work shall not exceed the scope of the work to
be done by Landlord originally in constructing the
premises, and further provided that Landlord shall not be
obligated to expend an amount greater than that which was
awarded to Landlord for such taking. G. Rent Adjustment:
If this Lease is not terminated as provided in this
paragraph 13, the fixed minimum rent shall be reduced by
that proportion which the floor area taken bears to
Tenant's total floor area immediately before the taking.
H. Award: The entire award or compensation in such
proceedings, whether for a total or partial taking or for diminution
in the value of the leasehold or for the fee shall belong to and be
the property of Landlord; provided that Tenant shall be entitled to
recover from the condemnor such compensation as may be separately
awarded by the condemnor to Tenant or recoverable from the condemnor
by Tenant for the taking of trade fixtures and equipment owned by
Tenant (meaning personal property which may be removed without
substantial damage to the premises) and for the expense of removing
and relocating them.
14. INDEMNITY; WAIVER: A. Indemnity: Tenant shall indemnify and
save Landlord Harmless from and against any and all liens,
claims, demands, actions, cause of action, obligations,
penalties, charges, liability, damages, loss, cost or
expenses, including reasonable attorney's fees for the
defense thereof, arising from or connected with the conduct
or management of the business conducted by Tenant on or
about the premises, or the use or occupancy of Tenant's
premises, or form any breach or default on the part of
Tenant in the performance of any covenants or agreement on
the part of Tenant to be performed pursuant to the terms of
this lease or from violations or noncompliance with any
laws, ordinances, rules, regulations, and requirements of
any governmental body or authority or the National Board of
Underwriters or similar insurance organization, which
affect Tenant's premises, or from any acts or omissions of
Tenant or any person upon Tenant or any person upon
Tenant's premises by license or invitation of Tenant or
occupying Tenant's premises or any part thereof under
Tenant.
B. Waiver: All property kept, stored or maintained in
Tenant's premises shall be so kept, stored, or maintained at the
sole risk of Tenant; and except in the case of Landlord's
affirmative negligence or willful misconduct, Landlord shall not be
liable, and Tenant waives all claims against Landlord, for damages
to persons or property sustained by Tenant or by any other person or
firm resulting from the building in which the premises are located
or by reason of Tenant's premises or any equipment located therein
becoming out of repair, or through the acts or omission of persons
occupying adjoining premises or any part of the building of which
the premises are a part, or any persons present in the Shopping
Center, or for loss or damage resulting to Tenant or its property
from burst, stopped or leading sewers, pipes, conduits, or plumbing
fixtures, or for interruptions of any utility services, or from any
failure of or defect in any electric line, circuit, or facility, or
any other type of improvement or service on or furnished to Tenant's
premises or resulting from any accident in, on, or about Tenant's
premises or the building in which the premises are located, or
resulting directly or indirectly from any act or neglect of any
other tenant or person in the Shopping Center.
15. SIGNS: Subject to governmental approval Landlord
hereby grants to Tenant the right to install and maintain any
ordinary and usual trade signs on the front of the demised premises
directly above the store front of the building; however, it is
agreed that any sign installed, erected, placed or maintained on the
demised premises or the exterior walls thereof shall be of a neat
character and design, consistent with Landlord's overall sign plan,
and shall advertise or refer to the kind and character of business
which Tenant is permitted hereunder to conduct in the demised
premises. Furthermore, all exterior signs on the demised premises
shall be subject to the written approval of Landlord, which approval
shall not be unreasonably or arbitrarily withheld.
No signs shall be displayed by the Tenant, and no
showcases, merchandise, obstructions, or any advertising device of
any kind whatsoever shall be placed by the Tenant in or on the
sidewalks, areaways, pedestrial malls, or other similar common
areas, upon which the store building of the demised premises abuts.
Furthermore, Tenant shall not install any awnings on the demised
premises without prior written consent of the Landlord.
16. RADIUS CLAUSE: Tenant hereby agrees that it will not
directly or indirectly during the term of this Lease or any renewals
or extensions thereof open, operate, or otherwise become interested
in a business similar in nature or in any way competitive to that
business conducted on the demised premises with a one (1) mile
radius of the demised premises.
17. TRADE FIXTURES: All trade fixtures and equipment
installed by Tenant in the demised premises shall be new and of good
quality. So long as Tenant shall not be in default hereunder, all
trade fixtures and shelving installed by Tenant in the premises
shall remain the personal property of Tenant and be removable by it
ant any time prior to the termination of this Lease. It is agreed
that Tenant shall have five (5) days after the expiration of the
term of this Lease to remove its trade fixtures. Any such removal
shall be effected without damage to the building. All such fixtures
and shelving shall become a part of the freehold and the property of
Landlord upon, but only upon, occurrence of default by Tenant
hereunder and its failure to rectify the same within the time and
under the conditions hereinafter provided.
18. LIENS: Tenant shall keep the premises and the
Shopping Center free of any liens or claims of lien arising from any
work performed, material furnished, or obligations incurred by
Tenant in connection with the premises. If Tenant disputes the
correctness or validity of any claim of lien, Tenant shall within
ten (10) days after written request by Landlord record such bond as
will release said property from the lien claimed. If a final
judgement establishing the validity or existence of a lien for any
amount is entered, Tenant shall pay and satisfy the same at once.
If Tenant shall be in default in paying any charge for which a lien
claim and suit to foreclose the lien have been filed, and shall not
have given Landlord security to protect the premises, the Shopping
Center, and Landlord, then Landlord may, but shall not be obligated
to, pay the said claim and any costs and fees related thereto, and
the amount so paid, together with reasonable attorneys' fees
incurred by Landlord in connection therewith, shall be immediately
due and owing from Tenant to Landlord, and Tenant agrees to and
shall pay the same with interest at ten percent (10%) per annum from
the dates of Landlord's payments.
19. RIGHT OF ACCESS: Landlord and its authorized agents
and representatives shall be entitled to enter the premises at all
reasonable times for the purposes of: inspecting them, making the
repairs which Landlord is obligated to make under this Lease;
posting any notice provided by law that relieves a landlord from
responsibility for the acts of a tenant; exhibiting the premises to
prospective buyers, tenants, or lenders; and posting ordinary signs
advertising the premises for sale or for lease on the exterior of
the building during the last one hundred eighty (1 80) days of the
term or any extended term hereof.
20. DELAYING CAUSES: If either party is delayed in the
performance of any covenant of this lease because of any of the
following causes (referred to elsewhere in this Lease as "delaying
cause"): acts of the other party, action of the elements, war,
riot, labor disputes, inability to procure or general shortage of
labor or materials, delay in transportation, delay in inspections,
or any other cause beyond the reasonable control of the party so
obligated, whether similar or dissimilar to the foregoing, financial
inability excepted, then such performance shall be excused for the
period of the delay and the period for such performance shall be
extended for a period equivalent to the period of such delay, except
that the foregoing shall in no way affect Tenant's obligation to pay
rent or the length of the term of this lease.
21. ASSIGNMENT, SUBLETTING AND ENCUMBRANCE:
A. Landlord's Consent Required: Tenant shall not assign,
transfer, mortgage, pledge, hypothecate, or encumber this Lease or
any interest therein, and shall not sublet the premises or any part
thereof, without the prior written consent of Landlord and any
attempt to do so without such consent being first had and obtained
and shall be voidable and, at Landlord's election, shall constitute
a default under this Lease.
B. Tenant's Application (Assignment and Sublease): In the
event that Tenant desires at any time to assign this Lease or to
sublet the premises or any portion thereof, Tenant shall submit to
Landlord at least sixty (60) days prior to the proposed effective
date of the assignment or sublease ("Proposed Effective Date"), in
writing: (1 ) a notice of intention to assign or sublease, setting
forth the Proposed Effective Date, which shall be no less than 60 or
more than 90 days after the sending of such notice; (2) the name of
the proposed subtenant or assignee; (3) the nature of the proposed
subtenant's or assignee's business to be carried on in the premises;
(4) the terms and provisions of the proposed sublease or assignment;
and (5) such financial information as Landlord may request
concerning the proposed subtenant or assignee. C. (Section deleted)
D. Assignment or Sublease Profit: In the event of
Landlord, of all or any portion of the premises, where the rental
reserved in the assignment or sublease exceeds the rental or prorata
portion of the rental, as the case may be, for such space reserved
in the Lease, Tenant shall pay Landlord monthly, as additional rent,
at the same time as the monthly installments of rent required
hereunder, the excess of the rental reserved in the assignment or
sublease, over the rental reserved in this Lease, applicable to the
assigned or subleased space.
E. Fees for Review: In the event that Tenant shall apply
for assignment, sublease or encumbrance under this Article, Tenant
shall pay to Landlord the sum of $ 150 as a non-refundable fee f or
Landlord's time and processing incurred in connection with reviewing
such application. In addition to said fee, Tenant shall pay to
Landlord, in the event that Landlord retains the services of an
attorney to review said application, all reasonable attorney's fees
incurred by Landlord in connection with such review.
F. No Release of Tenant: No consent by Landlord to any
assignment or subletting by Tenant shall relieve Tenant of any
obligation to be performed by the Tenant under this Lease whether
occurring before or after such consent, assignment or subletting.
The consent by Landlord to any assignment or subletting shall not
relieve Tenant from the obligation to obtain Landlord's express
written consent to any other assignment or subletting. The
acceptance of rent by Landlord from any other person shall not be
deemed to be a waiver by Landlord of any provision of this Lease or
to be a consent to any assignment, subletting or other transfer or
to be a release of Tenant from any obligation under this Lease.
Consent to one assignment, subletting or other transfer shall not be
deemed to constitute consent to any subsequent assignment,
subletting or other transfer.
G. Assumption of Obligations: Each assignee or transferee,
other than Landlord, shall assume all obligations of the Tenant
under this Lease and shall be and remain liable jointly and
severally with Tenant for the payment of the rent, and for the due
performance of all the terms, covenants, conditions and agreements
herein contained on Tenant's part to be performed for the term of
this Lease; provided, however, that the assignee or transferee shall
be liable to Landlord for rent only in the amount set forth in the
assignment or transfer. No assignment shall be binding on Landlord
unless such assignee or Tenant shall deliver to Landlord a
counterpart of such assignment and an instrument in recordable form
which contains a covenant of assumption by the assignee satisfactory
in substance and form to Landlord, consistent with the above
requirements (but the failure or refusal of the assignee to execute
such instrument of assumption shall not release or discharge the
assignee from its liability).
22. NOTICES:
A. Service: Whenever under this Lease provision is made
for notice or demand, it shall be in writing and signed by or on
behalf of the party giving the notice or making the demand and
served by registered or certified mail or by telegraph. If served
by registered or certified mail, it shall be deposited in the United
States mail, postage prepaid, with return receipt requested,
addressed to the party to whom such notice or demand is to be given
as provided in paragraph 22-B, and shall be conclusively deemed
served twenty-four (24) hours after mailing in California or
seventy-two (72) hours after mailing in another state. If served by
telegraph, service to the addressee shall be conclusively deemed
made as confirmed by the telegraphic agency making delivery.
B. Address: Any notice or demand to either party may be
given to it at the address appearing below its signature on the
signature page of this Lease. The address of either party may be
changed for the purpose of this paragraph by notice to the other
party.
23. SURRENDER OF POSSESSION:
A. Surrender: At the expiration of the tenancy created
hereunder, whether by lapse of time or otherwise, Tenant shall
surrender the premises broom clean and in good condition and repair.
B. Holding Over:
(1) If Tenant holds the premises after the expiration of
the term hereof with the consent of Landlord, express or implied,
such holding over shall, in the absence of a written agreement on
the subject, be deemed to have created a tenancy from month to
month, terminable on thirty (30) days' written notice by either
party to the other, at a minimum monthly rental equal to 1 /12th of
the total minimum and percentage rental, paid by Tenant to Landlord
during the immediately preceding twelve (12) month period, and
otherwise subject to all terms of this Lease, including the payment
of percentage rental and all other charges payable by Tenant
hereunder.
(2) If Tenant fails to surrender the demised premises upon
the termination of this Lease, Tenant shall indemnify and hold
harmless Landlord from loss or liability resulting from such
failure, including, without limiting the generality of the
foregoing, any claims made by any succeeding tenant arising out of
such failure.
24. QUIET ENJOYMENT: Subject to the provisions of this
Lease and conditioned upon performance of all of the provisions to
be performed by Tenant hereunder, Landlord shall secure to Tenant
during the lease term the quiet and peaceful possession of the
premises and all rights and privileges appertaining thereto.
25. SUBORDINATION: Tenant agrees that this Lease, at
Landlord's option, shall be subordinate to any first and second
mortgages or firs and second trust deeds that may hereafter be
placed upon said premises and all advances to be made thereunder,
and to the interest thereon, and all renewals, replacements and
extensions thereof, provided that such mortgages or beneficiaries
agree, in writing, to recognize this Lease in the event of
foreclosure of Tenant is not in default. Tenant shall execute and
deliver, without cost to Landlord, whatever instruments may be
required to effect such subordination.
26. OFFSET STATEMENT: Tenant shall at any time and from
time to time within fifteen (15) days after written request
therefore by Landlord deliver a certificate to Landlord or to any
proposed mortgagee, trust deed beneficiary, purchaser, or successor
in interest, certifying the commencement and expiration dates of the
lease term and that this Lease is then in full force and effect and
setting forth the amount and nature of modifications, defenses, or
offsets, if any, claimed by Tenant. If Tenant fails to deliver such
certificate within said 15-day period, Tenant hereby appoints
Landlord as Tenant's attorney in fact for the purpose of completing,
executing and delivering the certificate to the person or firm
requesting it.
27. DEFAULT: A. Notice and Remedies: If the rental
reserved by this Lease or other charges to be paid hereunder by
Tenant, or any part thereof, are not paid when due and remain unpaid
for a period of three (3) days after notice thereof in writing to
Tenant, or if Tenant fails to perform with diligence any other
covenants or conditions to be performed by it under this Lease
within thirty (30) days after receipt of written notice from
Landlord specifying the nature of such failure, or if such failure
requires more than thirty (30) days to correct, within such further
period as is necessary using due diligence at all times, Tenant
shall be deemed to be in default and in breach of this Lease; and
Landlord, without further notice of any kind, may at its option:
(1 ) Terminate Tenant's right to possession of the premises
because of such breach and recover form Tenant all damages allowed
under Section 1951.2 of the California Civil Code, including,
without limitation, 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
award exceeds the amount of such rental loss for the same period
that Tenant proves could be reasonably avoided, or;
(2) Not terminate Tenant's right to possession because of
such breach, but continue this Lease in full force and effect, and
in the event Landlord may enforce all rights and remedies under this
Lease, including the right to recover the rent and all other charges
due hereunder as such rent and other charges due hereunder as such
rent and other charges become due hereunder.
B. Right of Re-entry: In the event of any re-entry,
Landlord may remove all persons from the premises, and Landlord may
remove all property and any signs located in or about the premises
and place such property in storage in a public warehouse at the cost
and risk of Tenant.
C. Notice of Termination: No re-entry or re-letting of the
premises shall be construed as an election by Landlord to terminate
Tenant's right to possession and this Lease unless a written notice
of such intention is given by Landlord to Tenant; and
notwithstanding any such reletting without such termination,
Landlord may, at any time thereafter elect to terminate Tenant's
right to possession and this Lease in the event that at such time
Tenant remains in default hereunder.
D. Non-liability of Landlord: Except in the case of
Landlord's affirmative negligence or willful misconduct, Tenant
hereby waives all claims or demands for damages that may be caused
by Landlord in re- entering and taking possession of the premises as
hereinabove provided and all claims or demands for damages which may
result from the destruction of or injury to the premises and all
claims or demands for damages or loss of property belonging to
Tenant or to any other person or firm that may be in or about the
premises at the time of such re-entry.
E. Waiver of Notice: Notwithstanding any provision as to
notice contained in this paragraph 27 or any other provision of this
Lease relating to notice, (a) if the Tenant is required to comply
with any governmental regulation or order within a period less than
that to which Tenant would otherwise be entitled to notice
hereunder, Tenant shall not be entitled to notice from Landlord
beyond the period with which such compliance may be required by such
regulation or order; or (b) if the premises require emergency
repairs which Tenant would otherwise be obligated to make under this
Lease, but which Tenant is then unable or unwilling to make,
Landlord may, without notice, elect to make such repairs for the
account and at the expense of Tenant.
F. Interest: Any sum accruing to Landlord under the terms
and provisions of this Lease which shall not be paid when due shall
bear interest at the highest lawful rate from the date the same
becomes due and payable by the terms and provisions of this Lease
until paid, unless otherwise specifically provided in this Lease.
G. Other Remedies: Nothing contained in this Lease shall
limit Landlord to the remedies set forth in this paragraph 27 and
upon Tenant's default Landlord shall be entitled to exercise any
tight or remedy then provided by law.
28. INSOLVENCY:
A. Breach of Lease: The filing of any petition by or
against Tenant under any chapter of the Bankruptcy Act, or any
successor statute thereto, or the adjudication of Tenant as a
bankrupt or insolvent; or the appointment of a receiver or trustee
to take possession of all or substantially all of the assets of
Tenant, or a general assignment by Tenant for the benefit of
creditors, or any other action taken or suffered by Tenant, or a
general assignment by Tenant for the benefit of creditors, or any
other action taken or suffered by Tenant under any state or federal
insolvency or bankruptcy act, and the continuance of any of the
foregoing events for thirty (30) days shall constitute a default
under and breach of this Lease by Tenant, regardless of Tenant's
compliance with the other provisions of this Lease; and Landlord at
it option by written notice to Tenant may exercise all rights and
remedies provided for in paragraph 27, including the termination of
this Lease, effective on service of such notice, without the
necessity of further notice under paragraph 27.
B. Operation of Law: Neither this Lease, not any interest
herein, nor any estate created hereby, shall pass by operation of
law under any state or federal insolvency or bankruptcy act to any
trustee, receiver, assignee for the benefit of creditors or any
other person whatsoever without the prior written consent of
Landlord. Any purported transfer in violation of the provisions of
this paragraph 28-B shall constitute a default under and breach of
this Lease, regardless of Tenant's compliance with the other
provisions of this Lease; and Landlord at its option by written
notice to Tenant may exercise all rights and remedies provided for
in paragraph 27, including the termination of this Lease, effective
on service of such notice without the necessity of further notice
under paragraph 27. C. Non-waiver: The acceptance of rent at any
time and from time to time by Landlord from Tenant as debtor in
possession or from a transferee of the type mentioned in paragraph
28-B shall not preclude Landlord from exercising its rights under
this paragraph 28 at any time thereafter.
29. REMEDIES CUMULATIVE: The various rights, elections,
and remedies of Landlord and Tenant contained in this Lease shall be
cumulative, and no one of them shall be construed as exclusive of
any of the others, or of any right, priority, or remedy allowed or
provided for by law.
30. ATTORNEY'S FEES: If either party (hereinafter called
"non-defaulting party") is reasonably required to incur attorneys'
fees to enforce or declare or litigate any provision or tight
hereunder, the other party (hereinafter called "defaulting party")
shall be required to pay such fees in a reasonable amount, provided
that the position of the nondefaulting party prevails in the matter
for which the attorneys' fees were incurred, whether in litigation
or otherwise, provided further that unless ordered by the court,
written demand for such attorneys' fees is made upon the defaulting
party not later than thirty (30) days after the date when it has
been determined that such party has prevailed.
31. WAIVER OF DEFAULT: The waiver by either party of any
default in the performance by the other of any covenant contained
herein shall not be construed to be a waiver of any preceding or
subsequent default of the same or any other covenant contained
herein. The subsequent acceptance of rent or other sums hereunder
by Landlord shall not be deemed a waiver of any preceding default
other than the failure of Tenant to pay the particular rental or
other sum or portion thereof so accepted, regardless of Landlord's
knowledge of such preceding default at the time of acceptance of
such rent or other sum.
32. NO PARTNERSHIP: Landlord shall not in any way or for
any purpose be deemed a partner, joint venturer, or member of any
joint enterprise with Tenant.
33. SUBTENANCIES: The voluntary or other surrender of
this Lease by Tenant or a mutual cancellation of this Lease shall
not effect a merger and shall, at Landlord's option, terminate all
existing subtenancies or operate as an assignment to Landlord or any
or all of such subtenancies.
34. SUCCESSORS: Each and every covenant and condition of
this Lease shall bind and shall inure to the benefit of the parties
hereto and their successors. The term "successors" is used herein
in its broadest possible meaning and includes, but is not limited
to, executors and administrators, and every person, partnership,
association, or corporation succeeding to any interest in this Lease
or the premises, of Landlord or Tenant herein, whether such
succession results from the act or omission of a party, occurs by
operation of law, or as the effect of the operation of law together
with the act or omission of such party. Every covenant and
condition of this Lease shall be binding upon all assignees,
subtenants, licensees, and concessionaires of Tenant.
35. REMOVAL OF FIXTURES: Upon the expiration of the term
of this Lease or upon any earlier termination thereof, Tenant shall
remove at its own expense all trade fixtures, equipment and personal
property which were installed by Tenant or any subtenant,
concessionaire, or licensee in or upon the premises. If Tenant is
in default, Landlord may prohibit such removal by notice in writing
to Tenant. In case of any injury or damage to the building or any
portion of the premises resulting from the removal of any such
fixtures, equipment or other personal property, Tenant shall
promptly pay the Landlord the cost of repairing such injury or
damage. Tenant shall complete such removal by the time provided in
the first sentence of this paragraph 35 unless prevented from so
doing by a delaying cause, or Landlord may, at Landlord's option,
retain any or all trade fixtures, equipment, and personal property;
and title thereto shall thereupon vest in Landlord without the
execution of documents of sale or conveyance by Tenant, or Landlord
may remove any such trade fixtures, equipment, and personal property
from the premises and dispose of them in any manner Landlord sees
fit, and Tenant shall pay upon demand to Landlord the actual expense
of such removal and disposition together with interest from the date
of payment by Landlord until repayment by Tenant.
36. EFFECT OF CONVEYANCE: If during the term of this
Lease, Landlord sells its interest in the premises, or this Lease,
then from and after the effective date of such sale, Landlord shall
be released and discharged from any and all further obligations and
responsibilities under this Lease except those already accrued of
which Landlord has notice at the time of sale.
37. LANDLORD'S DEFAULT; NOTICE TO LENDER:
A. Landlord's Default: In the case of a monetary default,
Landlord shall have a period of ten (10) days after notice thereof
form Tenant to cure such monetary default. In the case of a
non-monetary default, Landlord shall commence promptly to cure such
default immediately after receipt of written notice from Tenant
specifying the nature of such default and shall complete such cure
within thirty (30) days thereafter, provided that if the nature of
the non-monetary default is such that it can not be cured within
said 30-day period, Landlord shall have such additional time as may
be reasonably necessary to complete its performance so long as
Landlord has proceed with diligence since its receipt of Tenant's
notice and is then proceeding with diligence to cure such default.
B. Notice to Lender: Whenever Tenant is required to serve
notice on Landlord of Landlord's default, written notice shall also
be served at the same time upon the first or second mortgage under
any mortgagee or beneficiary under any first or second deed of
trust. Such mortgagee or beneficiary shall have the periods of time
with which Landlord must cure its defaults under paragraph 37-A. In
this connection any representative of the mortgage or beneficiary
shall have the right to enter upon the premises for the purpose of
curing the Landlord's default. Such mortgagee of beneficiary shall
notify Landlord and Tenant in the manner provided by paragraph 22 of
the address of such mortgagee or beneficiary to which such notice
shall be sent, and the agreements of Tenant hereunder are subject to
prior receipt of such notice.
38. CONSENT: In consideration of each covenant made
elsewhere under this Lease wherein one of the parties agrees not to
unreasonably withhold its consent or approval, the requesting party
hereby releases the other and waives all claims for any damages
arising out of or connected with any alleged or claimed unreasonable
withholding of consent or approval.
39. INTERPRETATION: The captions by which the paragraphs
of this Lease are identified are for convenience only and shall have
no effect upon the interpretation of this Lease. Whenever the
context so requires, the singular number shall include the plural,
the plural shall refer to the singular, the neuter gender shall
include masculine and feminine genders, and the words "Landlord,"
"Tenant," and "person" shall include corporations, partnerships,
associations, other legal entities, and individuals. If either
party consists of more than one person, each person shall be jointly
and severally liable hereunder. If any provision of this Lease
shall be held to be invalid by a court the remaining provisions
shall remain in effect and shall in no way be impaired thereby.
40. HOURS OF BUSINESS: During the term of this Lease,
Tenant shall continuously operate all of the premises with due
diligence and efficiency so as to produce all of the gross sales
which may be produced by such manner of operation unless prevented
from doing so by causes beyond Tenant's control, subject to
unavailability of materials, merchandise, or labor strikes.
41. Section Deleted
42. BROKER'S COMMISSIONS: Each of the parties represents
and warrants that there a@@ claims for brokerage commissions or
finder's fees in connection with the execution of this Lease and
each of the parties agrees to indemnify the other against, and hold
it harmless from, all liabilities arising from any such claim
(including, without limitation, the cost of counsel fees in
connection therewith).
43. CREDIT CHECK: Tenant agrees that Landlord has the
right to request and obtain credit information regarding Tenant as
long as Tenant owes money to Landlord as a result of this Lease.
44. NO OPTION: The submission of this Lease for
examination does not constitute a reservation of or option for the
premises and this Lease becomes effective as a Lease only upon
execution and delivery thereof by Landlord and Tenant.
45. AGREEMENTS IN WRITING: It is understood that there
are no oral agreements between the parties hereto affecting this
Lease and this Lease supersedes and cancels any and all
negotiations, arrangements, brochures, agreements, representations,
and understandings, if any, between the parties hereto or displayed
by Landlord and Tenant with respect to the subject matter thereof
and none thereof shall be used to interpret or construe this Lease.
46. CORPORATE RESOLUTIONS: If a corporation executes this
Lease as a Tenant, Tenant shall promptly furnish Landlord certified
corporate resolutions attesting to the authority of the officers to
execute the lease on behalf of such corporation.
47. ARTICLES HEADINGS: The article titles herein are for
convenience only and do not define, limit or construe the contents
of such articles.
48. ENTIRE INSTRUMENT: All of the agreements heretofore
and contemporaneously made by the parties are contained in this
Lease. Landlord has made no representation to Tenant other than
those contained herein and Tenant's reliance in entering into this
Lease is based solely upon the terms, covenants and conditions
contained herein. This Lease cannot be modified in any respect
except by a writing executed by Landlord and Tenant.
LANDLORD TENANT
LARINA INVESTMENTS, INC., a SUPERMAIL INTERNATIONAL, Inc., a
California Corporation California Corporation
DAVID LIU, Vice President ELOY JORDON, Vice President of Operations
Address of Landlord: Address of Tenant:
LARINA INVESTMENTS, INC. SUPERMAIL INTERNATIONAL, Inc.
4200 Trabuco, #130 2201 Park Towne Circle, Suite 200
Irvine, CA 92720 Sacramento, CA 95825
AMENDMENT TO LEASE
This Amendment to Lease, made and entered into this 1st day of August,
1995, by and between Lily Company, a California Limited Partnership,
herein called Landlord, and SUPERMAIL INTERNATIONAL, INC., jointly and
severally, herein called Tenant.
WITNESSETH
RECITALS:
A. The parties hereto are parties to a Lease, dated July 7, 1989,
covering certain premises in the City of Rancho Cordova, County of
Sacramento, State of California, at 10167 Folsom Boulevard, more
particularly described in said Lease. (The Tenant's interest in said
Lease was assigned to Tenant by Assignment of Lease from Michael E.
Brown, President RLB Financial Corp.)
b. The parties wish to amend certain provisions of said Lease
Agreement as hereinafter set forth:
Now, therefore, it is mutually agreed:
1. Tenant has agreed to a one year lease extension.
2. The Lease expiration date shall be October 31, 1996.
3. The base rental amount shall be $1,472.76 per month for the
period November 1, 1995 through October 31, 1996.
4. Section 38 of the Lease shall be deleted in its entirety.
Except as herein amended, said Lease shall remain in full force and
affect.
In witness Whereof, the parties hereto have duly executed these
presents the day and year below written.
The Lily Company Supermail International, Inc.
A California Limited Partnership
Samuel B. Fong Christine Umbertino
General Partner Chief Executive Officer
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized.
Supermail International, Inc.
(Registrant)
By /s/ Kurt Lee Date April 12,1996
Kurt Lee
Chief Financial Officer
