<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended JUNE 30, 1998
OR
[ ] TRANSACTION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission file number: 0-24048
GEERLINGS & WADE, INC.
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-2935863
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
960 TURNPIKE STREET, CANTON, MA 02021
(Address of principal executive offices) (Zip Code)
(Registrant's telephone number, including area code): (781) 821-4152
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for 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 [ ]
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's classes
of common stock as of the latest practicable date:
Par Value Date Number of Shares
--------- ---- ----------------
Common Stock $ .01 August 14, 1998 3,789,495
<PAGE>
GEERLINGS & WADE, INC.
INDEX
<TABLE>
<CAPTION>
Page
----
<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Balance Sheets at December 31, 1997 and
June 30, 1998 (Unaudited)................................... 2
Statements of Income for the Quarters Ended
June 30, 1997 and June 30, 1998 and for the six months
Ended June 30, 1997 and June 30, 1998 (Unaudited)........... 3
Statements of Cash Flows for the six months Ended
June 30, 1997 and June 30, 1998 (Unaudited)................. 4
Notes to Financial Statements............................... 5
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations......................... 7
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K............................ 10
SIGNATURES............................................................. 11
</TABLE>
1
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
GEERLINGS & WADE, INC.
BALANCE SHEETS
(Unaudited)
<TABLE>
<CAPTION>
December 31, June 30,
1997 1998
------------ -----------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 358,043 $ 3,173,095
Accounts receivable 559,046 155,144
Inventory 10,984,590 8,089,653
Prepaid mailing costs 957,483 614,651
Prepaid expenses and other assets 987,034 769,884
Deferred income taxes 855,910 424,865
----------- -----------
Total Current Assets 14,702,106 13,227,292
----------- -----------
PROPERTY AND EQUIPMENT, AT COST 2,550,646 2,502,955
Less--Accumulated Depreciation 1,240,777 1,449,464
----------- -----------
1,309,869 1,053,491
----------- -----------
OTHER ASSETS 112,367 545,108
----------- -----------
$16,124,342 $14,825,891
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Line of credit $ 982,395 $ ---
Accounts payable 1,900,761 1,775,735
Deferred revenue 766,392 654,058
Accrued expenses 1,749,958 1,120,460
----------- -----------
Total Current Liabilities 5,399,506 3,550,253
----------- -----------
DEFERRED REVENUE, LESS CURRENT PORTION 363,163 515,129
----------- -----------
STOCKHOLDERS' EQUITY:
Preferred stock, $.01 par value -
Authorized-1,000,000 shares
Outstanding-none
Common stock, $.01 par value-
Authorized-10,000,000 shares-
Issued and outstanding-3,781,343 and 3,785,316
shares in 1997 and 1998, respectively 37,812 37,853
Additional paid-in capital 9,729,781 9,743,671
Retained earnings 594,080 978,985
----------- -----------
Total Stockholders' Equity 10,361,673 10,760,509
----------- -----------
$16,124,342 $14,825,891
=========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
2
<PAGE>
GEERLINGS & WADE, INC.
STATEMENTS OF INCOME
(Unaudited)
<TABLE>
<CAPTION>
Quarter Ended Six Months Ended
June 30, June 30, June 30, June 30,
1997 1998 1997 1998
---------- ---------- ----------- -----------
<S> <C> <C> <C> <C>
Sales $8,402,370 $8,193,886 $15,522,169 $15,584,952
Cost of Sales 4,580,651 4,158,993 8,342,446 8,089,616
---------- ---------- ----------- -----------
Gross Profit 3,821,719 4,034,893 7,179,723 7,495,336
Selling, general and administrative expenses 3,396,548 3,535,567 6,773,920 6,834,579
---------- ---------- ----------- -----------
Income from operations 425,171 499,326 405,803 660,757
Interest income 19,485 1,246 19,486 1,364
Interest expense --- 42 5,602 20,616
---------- ---------- ----------- -----------
Income before income taxes 444,656 500,530 419,687 641,505
Provision for income taxes 178,720 199,600 168,000 256,600
---------- ---------- ----------- -----------
Net income $ 265,936 $ 300,930 $ 251,687 $ 384,905
========== ========== =========== ===========
Net income per share
Basic $ 0.07 $ 0.08 $ 0.07 $ 0.10
========== ========== =========== ===========
Diluted $ 0.07 $ 0.08 $ 0.07 $ 0.10
========== ========== =========== ===========
Weighted average common shares and common
equivalents outstanding
Basic 3,778,494 3,785,316 3,778,939 3,784,109
========== ========== =========== ===========
Diluted 3,788,775 3,817,361 3,792,982 3,809,169
========== ========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
3
<PAGE>
GEERLINGS & WADE, INC.
STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
June 30, June 30,
1997 1998
----------- -----------
<S> <C> <C>
CASH FLOW FROM OPERATING ACTIVITIES:
Net Income $ 251,687 $ 384,905
Adjustments to reconcile net income to net cash provided by
operating activities --
Depreciation and amortization 272,662 265,244
Deferred income taxes 128,150 ---
Loss from disposition of fixed asset 20,770 ---
Changes in current assets and liabilities --
Accounts receivable (88,153) 403,902
Inventory 946,130 2,894,936
Prepaid mailing costs 217,921 342,832
Prepaid expenses (140,415) 179,752
Refundable income taxes 6,217 1,622
Accounts payable 1,500,833 (125,026)
Deferred revenue (21,524) 39,632
Accrued expenses (62,307) (629,498)
----------- -----------
Net cash provided by operating activities 3,031,971 3,758,301
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property and equipment (267,731) (36,130)
Proceeds from the sale of property and equipment 3,550 70,000
Change in other assets 97,812 (8,655)
----------- -----------
Net cash (used in) provided by investing activities (166,369) 25,215
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Borrowings on line of credit 310,540 1,651,090
Repayments on line of credit (1,249,559) (2,633,485)
Proceeds from stock purchase plan 6,504 13,931
----------- -----------
Net cash used in financing activities (932,515) (968,464)
----------- -----------
NET INCREASE IN CASH AND CASH EQUIVALENTS 1,933,087 2,815,052
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 774,514 358,043
----------- -----------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 2,707,601 $ 3,173,095
=========== ===========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW
INFORMATION:
Cash paid during the period -
Interest $ 5,691 $ 20,616
=========== ===========
Income taxes paid $ --- $ 621,350
=========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
4
<PAGE>
NOTES TO FINANCIAL STATEMENTS
1. Basis of Presentation
---------------------
The interim period information set forth in these financial statements is
unaudited and may be subject to normal year-end adjustments. In the opinion of
management, the information reflects all adjustments, which consist of normal
recurring accruals that are considered necessary to present a fair statement of
the results of operations of Geerlings & Wade, Inc. (the "Company") for the
interim periods presented. The operating results for the quarter ended June 30,
1998 are not necessarily indicative of the results to be expected for the fiscal
year ending December 31, 1998.
The financial statements presented herein should be read in conjunction with the
financial statements included in the Company's Annual Report on Form 10-K for
the year ended December 31, 1997. Certain information in these footnote
disclosures normally included in financial statements has been condensed or
omitted in accordance with the rules and regulations of the Securities and
Exchange Commission.
2. Basic and Diluted Net Income Per Common Share Data
--------------------------------------------------
In March 1997, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards No. 128, Earnings Per Share. This
Statement establishes standards for computing and presenting earnings per share.
Net income per share has been restated for all periods to conform to current
year presentation. For the quarters ending June 30, 1997 and June 30, 1998,
279,029 and 236,027 of anti-dilutive shares in the form of options,
respectively, have been excluded from the weighted average number of common and
dilutive potential common shares outstanding. For the six months ending June
30, 1997 and June 30, 1998, 274,381 and 243,012 of anti-dilutive shares in the
form of options, respectively have been excluded from the weighted average
number of common and dilutive potential common shares outstanding.
Basic and diluted net income per share is as follows:
<TABLE>
<CAPTION>
Quarter Six Months
Ended June 30, Ended June 30,
1997 1998 1997 1998
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Net income $ 265,936 $ 300,930 $ 251,687 $ 384,905
========== ========== ========== ==========
Basic weighted average shares outstanding 3,778,494 3,785,316 3,778,939 3,784,109
Weighted average common equivalent shares computed
under the treasury stock method 9,395 32,045 14,043 25,060
---------- ---------- ---------- ----------
Diluted weighted average shares outstanding 3,787,889 3,817,361 3,792,982 3,809,169
========== ========== ========== ==========
Basic net income per share $ 0.07 $ 0.08 $ 0.07 $ 0.10
========== ========== ========== ==========
Diluted net income per share $ 0.07 $ 0.08 $ 0.07 $ 0.10
========== ========== ========== ==========
</TABLE>
3. New Accounting Standards and Pronouncements
-------------------------------------------
Effective January 1, 1998, the Company adopted Statement of Financial Accounting
Standards No. 130, Reporting Comprehensive Income. This Statement requires that
all items recognized under accounting standards as components of comprehensive
income be reported in financial statements. It also requires that an entity
classify items of other comprehensive income (e.g., foreign currency
5
<PAGE>
translation adjustments and unrealized gains and losses on certain marketable
securities) by their nature in its financial statements. The Company did not
have any items of comprehensive income for the quarters ended June 30, 1997 and
June 30, 1998, and therefore, total comprehensive income was the same as
reported net income for those periods.
In June 1997, the FASB issued SFAS No. 131, Disclosures About Segments of an
Enterprise and Related Information. SFAS No. 131 is effective for fiscal years
ending after December 15, 1997. The Company believes that the adoption of this
new accounting standard will not have a material impact on the Company's
financial statements.
In April 1998, the American Institute of Certified Public Accountants ("AICPA")
issued Statement of Position 98-5, Reporting on the Costs of Start-Up Activities
("SOP 98-5"). SOP 98-5 requires all costs associated with pre-opening and
organization activities to be expensed as incurred. The Company does not expect
the adoption of this Statement to have a material impact on the Company's
financial position or results of operations.
4. Subsequent Events
- -- -----------------
On July 7, 1998, the Company closed the acquisition of the assets of Passport
Wine Gift Company, Inc. d/b/a Passport Wine Club. The acquisition of Passport
will be accounted for as a purchase in accordance with APB No. 16. The
financial results of Passport Wine Club are not material to the Company's
financial statements taken as a whole.
6
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
GENERAL
Geerlings & Wade, Inc. (the "Company") is a direct marketer of premium
wines and wine-related merchandise to retail consumers. The Company currently
maintains licensed facilities in fourteen states. Federal, state and local laws
strictly govern the sale of wine in each market served by the Company.
IMPORTANT FACTORS REGARDING FORWARD-LOOKING STATEMENTS
The Company may occasionally make forward-looking statements and estimates
such as forecasts and projections of the Company's future performance or
statements of management's plans and objectives. These forward-looking
statements may be contained in SEC filings, press releases and oral statements,
among others, made by the Company. Actual results could differ materially from
those in such forward-looking statements. Therefore, no assurance can be given
that the results in such forward-looking statements will be achieved. Important
factors could cause the Company's actual results to differ from those contained
in such forward-looking statements, including, among other things, the factors
mentioned in the Company's Annual Report on Form 10-K for the year ended
December 31, 1997 on file with the U.S. Securities and Exchange Commission.
QUARTERS ENDED JUNE 30, 1997 AND JUNE 30, 1998
Sales
Sales decreased $208,000, or 2.5%, from $8,402,000 in the quarter ended
June 30, 1997 to $8,194,000 in the quarter ended June 30, 1998. The decrease in
sales from the same period in the prior year resulted from not mailing the
spring catalog and not shipping this year's Bordeaux wine futures during the
second quarter. In the second quarter of 1997, the Company also experienced
exceptionally high response rates to several house mailings. The higher sales
from these mailings were somewhat offset by an additional acquisition mailing in
the second quarter of 1998 as compared to mailing only one acquisition program
in the second quarter of 1997. Sales, exclusive of wine accessory sales,
decreased 2.9% in markets, defined by the shipping region of each warehouse in
which the Company has been open at least one year. The number of twelve-bottle
equivalent cases ("cases") sold by the Company increased by 3,393, or 4.3%, from
79,513 in the quarter ended June 30, 1997 to 82,906 in the quarter ended June
30, 1998. The average case price decreased by $0.36, or 0.4%, from $98.23 in the
quarter ended June 30, 1997 to $97.87 in the quarter ended June 30, 1998. The
average case price increased principally as a result of mailing nearly twice as
many acquisition pieces in the second quarter of 1998 compared to the first
quarter of 1997. The average number of cases purchased per customer order was
1.10 in the quarter ended June 30, 1998 compared to 1.11 in the same fiscal
period of 1997.
Gross Profit
Gross profit increased $213,000, or 5.6%, from $3,822,000 in the quarter
ended June 30, 1997 to $4,035,000 in the quarter ended June 30, 1998. Gross
profit as a percentage of sales increased from 45.5% in the quarter ended June
30, 1997 to 49.2% in the quarter ended June 30, 1998. Gross profit attributable
to wine sales increased $2.99 per case, or 6.5%, from $45.68 per case in the
quarter ended June 30, 1997 to $48.67 per case in the quarter ended June 30,
1998. The increase in gross margin percentage and average gross profit resulted
primarily from improved purchasing by the Company and lower domestic wine
prices.
Selling, General and Administrative Expenses
Selling, general and administrative expenses increased $139,000, or 3.9%,
from $3,397,000 in the quarter ended June 30, 1997 to $3,536,000 in the quarter
ended June 30, 1998, while increasing as a percentage of sales from 40.2% in the
quarter ended June 30, 1997 to 43.2% in the quarter ended June 30, 1998. The net
increase in selling, general and administrative expenses is largely attributable
to higher net delivery costs.
Interest
Interest income decreased from $19,000 in the quarter ended June 30, 1997
to $1,000 in the quarter ended June 30, 1998. This reduction in interest income
was due to having lower cash balances invested during the 1998 second quarter as
compared to the 1997 second quarter. There was effectively no interest expense
for both the 1997 and 1998 second quarters.
7
<PAGE>
SIX-MONTH PERIODS ENDED JUNE 30, 1997 AND JUNE 30, 1998
Sales
Sales increased $63,000, or 0.4%, from $15,522,000 in the six months ended
June 30, 1997 to $15,585,000 in the six months ended June 30, 1998. The
increase in sales from the comparable period for the prior year resulted
primarily from increased response rates to house mailings and was offset by not
mailing a spring catalog offering wines and wine accessories and the recognition
of sales of Bordeaux futures in the second quarter of 1998. Sales, exclusive of
wine accessory sales, decreased 0.7% in markets, defined by the shipping region
of each warehouse in which the Company has been open at least one year. The
number of cases sold by the Company increased by 4,025, or 2.7%, from 147,756 in
the six months ended June 30, 1997 to 151,781 in the six months ended June 30,
1998. The average case price increased by $0.19, or 0.2%, from $99.92 in the
six months ended June 30, 1997 to $100.11 in the six months ended June 30, 1998.
The average case price was stable and reflects a consistent pricing strategy.
The average number of cases purchased per customer order was 1.11 in the six
months ended June 30, 1998 compared to 1.13 in the comparable fiscal period of
1996.
Gross Profit
Gross profit increased $315,000, or 4.4%, from $7,180,000 in the six months
ended June 30, 1997 to $7,495,000 in the six months ended June 30, 1998. Gross
profit as a percentage of sales increased from 46.3% in the six months ended
June 30, 1997 to 48.1% in the six months ended June 30, 1998. Gross profit
attributable to wine sales increased $0.79 per case, or 1.6%, from $48.59 per
case in the six months ended June 30, 1997 to $49.38 per case in the six months
ended June 30, 1998. The increase in gross profit percentage and average gross
profit per case resulted from improved purchasing and lower prices for domestic
products.
Selling, General and Administrative Expenses
Selling, general and administrative expenses increased $61,000, or 0.9%,
from $6,774,000 in the six months ended June 30, 1997 to $6,835,000 in the six
months ended June 30, 1998. As a percentage of sales, these expenses increased
from 43.6% in the six months ended June 30, 1997 to 43.9% in the six months
ended June 30, 1998. The net increase in selling, general and administrative
expenses is attributable to a) higher net delivery costs due to higher delivery
charges and b) slightly higher marketing costs to date due to amortization
of the 1997 fourth quarter acquisition programs.
Interest
Interest income decreased by $18,000 for the sixth months in 1998 compared
to 1997 due to lower invested cash balances. Interest expense increased by
$15,000 from $6,000 in the six months ended June 30, 1997 to $21,000 in the six
months ended June 30, 1998, as a result of increased average borrowings under
the Company's line of credit during the first quarter.
8
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS (CONTINUED)
PROVISION FOR INCOME TAXES
The Company's provision for income taxes for the quarter ended June 30,
1998 reflects an approximate 40% effective income tax rate anticipated for the
full year ended December 31, 1998. During the quarter ended June 30, 1998, the
Company recorded a provision for income taxes of $200,000 and recorded a
provision for income taxes of $257,000 for the six months ended June 30, 1998.
LIQUIDITY AND CAPITAL RESOURCES
The Company's primary working capital needs include purchases of inventory
and the cost of prospect mailings and other expenses associated with promoting
sales. As of June 30, 1998, the Company had cash and cash equivalents totaling
$3,173,000. In addition, the Company has a credit facility with BankBoston
comprised of a revolving, discretionary, demand line of credit in the maximum
principal amount equal to the lesser of 50% of qualifying inventory or $5.0
million (the "Line of Credit"). The Line of Credit bears interest at
BankBoston's base rate (which approximates the prime rate) plus one-half of a
percent and is collateralized by substantially all of the assets of the Company.
As of June 30, 1998, the Company had no outstanding balance under the Line of
Credit.
During the quarter ended June 30, 1998, net cash of $3,758,000 was provided
by operating activities, resulting principally from decreases of accounts
receivable, inventory and prepaid mailing costs, which reductions were offset by
a decrease in accrued expenses.
Cash proceeds of $70,000 provided by the disposal of assets resulted from
returning assets to a vendor.
At December 31, 1997 and June 30, 1998, the Company had working capital of
$9,303,000 and $9,677,000, respectively. The increase in working capital was
primarily due to a decrease in accounts receivable, inventory, prepaid mailing
costs and prepaid expenses and was offset by a decrease in accounts payable and
accrued expenses.
The Company presently believes that cash flows from operations and current
cash balances, together with the Line of Credit, will be sufficient to meet the
Company's working capital and capital expenditure requirements for the
foreseeable future.
EXCHANGE RATES
The Company engages, from time to time, in currency-hedging activities
related to firm commitments for the purchase of inventories in an effort to fix
costs and manage the impact of exchange rate fluctuations. The Company has two
foreign exchange lines of credit, which allow the Company to enter into forward
currency exchange contracts of up to $1,000,000 maturing on any one day. As of
June 30, 1998, the Company had obligations of $252,000 with respect to forward
currency exchange contracts.
YEAR 2000 COMPLIANCE
The Company depends on computer systems for all phases of its operations.
Because many of the Company's computer software programs recognize only the last
two digits of the year in any date (e.g. "98" for "1998"), some software may
fail to operate properly in 1999 and 2000 if the software is not reprogrammed or
replaced (the "Year 2000 Problem"). The Company believes that many of its
suppliers also have Year 2000 Problems, which could affect the Company. The
Company intends to timely mitigate and/or prevent the adverse effects of the
Year 2000 Problem, and to pursue compliance by suppliers. It is not possible,
at present, to quantify the overall cost of this work nor the financial effect
of the Year 2000 Problem if it is not timely resolved. The Company presently
believes, however, that the cost of fixing the Year 2000 Problem will not have a
material adverse effect on the Company's financial position, liquidity or
results of operations.
9
<PAGE>
PART II. OTHER INFORMATION
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.35 Sublease Agreement between the Company and Fishman Supply Co.
dated June 15, 1998 and Lease Agreement between Fishman Supply
Co. and Charles R. Stephens dated September 1, 1989.
27 Financial Data Schedule
(b) No reports on Form 8-K were filed during the quarter ended June 30,
1998.
10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
GEERLINGS & WADE, INC.
(Registrant)
By: /s/ Jay L. Essa
---------------
Name: Jay L. Essa
Title: President and
Chief Executive Officer
By: /s/ David R. Pearce
------------------------
Name: David R. Pearce
Title: Vice President
and Chief Financial Officer
Dated: August 14, 1998
11
<PAGE>
<TABLE>
<CAPTION>
LEASE SUMMARY AND INDEX
SECTION PAGE
- ------------------------------------------------------------------------------------------ ----
<C> <S> <C>
1. PARTIES TO LEASE AGREEMENT:...................................................... 3
1.1 Landlord: Charles R. Stephens............................................... 3
1.2 Address: P.O. Box 750007, Petaluma, CA 94975............................... 3
1.3 Tenant: Fishman Supply Company, A California Corporation................... 3
1.4 Address: 1004 Lakeville St. Petaluma, CA 94952............................. 3
1.5 Date of Agreement:.......................................................... 3
2. PREMISES:........................................................................ 3
2.1 Building Name: Stephens Building............................................ 3
2.2 Address: 715 Northpoint Blvd., Petaluma, CA 94952......................... 3
2.3 Premises: Approximate Square Feet 13,815 (3000 office; 10,815 whse)......... 3
3. TERM:............................................................................ 3
3.1 Lease Term: Ten (10) Years and ---- Months............................... 3
3.2 Commencement: September 1, 1989............................................. 3
3.3 Option to Extend: Five (5) Years............................................ 3
4. RENT:............................................................................ 4
4.1 Rent Without Offset and Late Charge......................................... 4
4.2 Rent Schedule............................................................... 4
4.3 Advance Rent: First $5,100.00 Last $9,980.00........... 4
4.4 Direct Expenses............................................................. 4
4.4.1 Direct Expenses included in GROSS lease..................................... 4
4.5 Utilities................................................................... 4
5. SECURITY DEPOSIT: AMOUNT $5,000.00.............................................. 4
6. USE:............................................................................. 5
7. COMMON AREAS:.................................................................... 5
7.2 Parking. Spaces allowed: Thirty (30)....................................... 5
8. CONSTRUCTION OF PREMISES:........................................................ 5
8.1 Landlord's Obligations...................................................... 5
8.2 Tenant's Acceptance of Premises............................................. 6
9. REPAIRS, MAINTENANCE, ALTERATIONS AND ADDITIONS:................................. 6
9.1 Landlord's Obligations...................................................... 6
9.2 Tenant's Obligations........................................................ 6
9.3 Surrender................................................................... 6
9.4 Alterations and Additions................................................... 6
10. LIENS:........................................................................... 6
11. ENTRY BY LANDLORD:............................................................... 7
12. SIGNS AND WINDOW COVERINGS:...................................................... 7
13. INDEMNITY:....................................................................... 7
</TABLE>
1
<PAGE>
<TABLE>
<C> <S> <C>
14. INSURANCE:....................................................................... 7
14.1 Fire Insurance.............................................................. 7
14.2 Liability Insurance......................................................... 7
15. ASSIGNMENT AND SUBLETTING:....................................................... 8
16. DEFAULTS AND REMEDIES:........................................................... 8
17. SUBORDINATION:................................................................... 8
18. MISCELLANEOUS:................................................................... 8
18.1 Estoppel Certificate........................................................ 8
18.2 Waiver...................................................................... 9
18.3 Entire Agreement............................................................ 9
18.4 Cost of Suit................................................................ 9
18.5 Sale of Premises by Landlord................................................ 9
18.6 Covenants to Bind Successors................................................ 9
18.7 Financial Statement......................................................... 9
18.8 Holding Over................................................................ 9
18.9 Interest on Past Due Obligations............................................ 10
18.10 Notices..................................................................... 10
19. BUILD-TO-SUIT CANCELLATION OPTION:............................................... 10
SIGNATURES:............................................................................... 10
EXHIBIT A -- SITE PLAN.................................................................... 11
EHHIBIT B -- PREMISES..................................................................... 12
EXHIBIT C -- STANDARD SPECIFICATIONS...................................................... 13
EXHIBIT C1 -- FLOOR PLAN.................................................................. 16
EXHIBIT D -- RULES AND REGULATIONS........................................................ 17
EXHIBIT E -- ACCEPTANCE OF PREMISES....................................................... 18
</TABLE>
2
<PAGE>
1. PARTIES TO LEASE AGREEMENT:
--------------------------
1.1 Landlord: Charles R. Stephens
-------------------
The owner of the building is Charles R. Stephens DBA North Bay Drywall Co.
hereinafter referred to as "Landlord."
1.2 Address: P.O. Box 750007, Petaluma, CA 94975
------------------------------------
1.3 Tenant: Fishman Supply Company, A California Corporation
------------------------------------------------
The Tenant entering into this agreement is Fishman Supply Company, A
-------------------------
California Corporation
----------------------
1.4 Address: 1004 Lakeville St. Petaluma, CA 94952
--------------------------------------
1.5 Date of Agreement:
_____________________________
This lease is made and entered into this ____________ day of ____________,
19_____, by and between the Landlord and Tenant named above.
2. PREMISES:
--------
2.1 Building Name: Stephens Building
-----------------
2.2 Address: 715 Northpoint Blvd., Petaluma, CA 94952
-----------------------------------------
2.3 Premises: Approximate Square Feet 13,815 (3000 office; 10,815 whse)
---------------------------------
The premises leased by Landlord to Tenant are located in the City of
Petaluma, County of Sonoma, State of California, and consist of space
within that certain real property commonly known as the Stephens Building
in Southpoint Business Park (hereinafter "Property"). See EXHIBIT A Site
Plan.
The premises shall consist of approximately 13,815 usable square feet as
------
outlined on the EXHIBIT B--Premises, incorporated herein by reference.
3. TERM:
-----
3.1 Lease Term: Ten (10) Years and ---- Months
--------------------------------
The term of this lease shall be for a period of ten (10) years
--------------
3.2 Commencement: September 1, 1989
-----------------
The term of this lease and Tenant's obligation to pay rent shall commence
on September 1, 1989. Tenant shall pay rent prorated for any partial month
-----------------
the space is occupied by Tenant, prior to the commencement of the term.
3.3 Option to Extend: Five (5) Years
--------------
Tenant may extend this Lease for a further period of five (5) years by
--------------
giving Landlord notice in writing of Tenant's intention to do so at
least 180 days prior to the expiration of the term hereof. Said extension
shall be under all the terms and conditions of this Lease except for Rent
which, shall be the greater of then current rents for comparable space or
five percent greater than the year 10 rents. Rent for the remainder of the
option shall be increased five percent annually.
3
<PAGE>
4. RENT:
----
4.1 Rent Without Offset and Late Charge.
Rent shall be due, according to the following Rent Schedule 4.2, in advance
on the first day of each and every month during the term of this Lease.
Rent shall be paid by Tenant to Landlord at 715 Northpoint Blvd., Petaluma,
CA 94952, and shall be paid without demand from Landlord and without any
deduction or offset whatsoever. If any installments of the Monthly Rent
shall not be received by Landlord on or before the fifth day of the month,
Tenant shall pay to Landlord a late charge of $50.00 per day from the sixth
day to the receipt of the past due Monthly Rent.
4.2 Rent Schedule.
<TABLE>
<S> <C> <C> <C> <C>
Year 1 $5,100.00 Monthly $ 61,200.00 Yearly
- ----------- --------- ------- ----------- -----------
Year 2 $5,700.00 Monthly $ 68,400.00 Yearly
- ----------- --------- ------- ----------- -----------
Year 3 $6,300.00 Monthly $ 75,600.00 Yearly
- ----------- --------- ------- ----------- -----------
Year 4 $7,180.00 Monthly $ 86,160.00 Yearly
- ----------- --------- ------- ----------- -----------
Year 5 $7,800.00 Monthly $ 93,600.00 Yearly
- ----------- --------- ------- ----------- -----------
Year 6 $8,190.00 Monthly $ 98,280.00 Yearly
- ----------- --------- ------- ----------- -----------
Year 7 $8,600.00 Monthly $103,200.00 Yearly
- ----------- --------- ------- ----------- -----------
Year 8 $9,030.00 Monthly $108,360.00 Yearly
- ----------- --------- ------- ----------- -----------
Year 9 $9,500.00 Monthly $114,000.00 Yearly
- ----------- --------- ------- ----------- -----------
Year 10 $9,980.00 Monthly $119,760.00 Yearly
- ----------- --------- ------- ----------- -----------
</TABLE>
4.3 Advance Rent: First $5,100.00 Last $9,980.00
--------- ---------
Tenant, with the execution of this Lease, has deposited with Landlord the
sum of $15,080.00, consisting of the first and last month's rent. $5,100.00
----------
to be paid with lease execution, $9,980.00 is payable at $831.67 per month
over 12 months from date of occupancy.
4.4 Direct Expenses.
4.4.1 Direct Expenses included in GROSS lease.
This is a GROSS lease and all Direct Expenses are included in the Base
Rent.
Direct Expenses are all direct costs of operation and common area
maintenance, as determined by standard accounting practices, and shall
include the following costs, but not be limited to: real property taxes and
assessments; water and sewer charges; insurance premiums; common area
utilities; air-conditioning and heating; maintenance, costs, and upkeep of
all parking and common areas.
4.5 Utilities.
Tenant shall bear the cost of all utilities. Tenant will be responsible for
ordering service and installation of electric and gas meters with Pacific
Gas and Electric for the Premises. Domestic water and sewer services, as
part of Direct Expenses, are included in the Base Rent.
5. SECURITY DEPOSIT: AMOUNT $5,000.00
---------------- ---------
Tenant will deposit with Landlord the sum of $5,000.00. This deposit shall
---------
be held by Landlord as security for the performance by tenant of every
covenant and condition of this Lease. This deposit shall not bear interest
or earn income and shall not be considered an advance payment of rent or a
measure of Landlord's damages in case of default by Tenant. Landlord shall
not be required to keep this deposit separate from its general funds and
may commingle the deposit with its other assets. If Tenant complies with
all of the covenants and conditions of this lease, the Security Deposit, or
any
4
<PAGE>
balance thereof shall be returned to the Tenant within the twenty days
after both the expiration or other termination of this Lease and after
delivery of possession of the premises to Landlord. If Landlord assigns or
transfers its interest in this Lease, Landlord may assign the Security
Deposit to the assignee and thereafter Tenant agrees to release Landlord
from all liability for the return of such deposit. Tenant agrees that it
will not assign or encumber the Security Deposit. No trust relationship is
created herein between Tenant and Landlord with respect to the Security
Deposit. This amount is payable at $416.67 per month over 12 months from
date of occupancy.
6. USE:
---
The Premises are to be used only for wholesale, retail and warehousing of a
--------------------------------------
commercial supply company and for no other business or purpose without the
-------------------------
prior written consent of Landlord. No act shall be done in or about the
Premises that is unlawful or that will increase the existing rate of
insurance on the Building. Tenant shall not commit or allow to be committed
any waste upon the Premises, or any public or private nuisance or other act
or thing which disturbs the quiet enjoyment of any other tenant in the
Building. Tenant shall comply with all laws relating to its uses or
occupancy of the Premises and shall observe such reasonable rules and
regulations as may be adopted by Landlord from time to time for the safety,
care and cleanliness o the Premises or the Building. See EXHIBIT D - Rules
and Regulations.
7. COMMON AREAS:
------------
7.1 Availability and Use of Common Area.
Areas within the outer property lines of the Property on which the Premises
are located as delineated on the EXHIBIT A - Site Plan, exclusive of areas
specified, as usable area for tenants shall be known as Common Areas. Any
additional lands, not part of this Property, which may be designated for
additional parking, will be considered part of the Common Area.
All Common Areas shall be subject to the exclusive control and management
of Landlord. Landlord shall have the right to establish, modify, amend, and
enforce reasonable rules and regulations concerning the Common Area. Tenant
acknowledges receipt of a copy of the current Rules and Regulations
attached as EXHIBIT - D. Tenant agrees to abide by and conform with such
Rules; to cause its concessionaires and its and their employees and agents
to abide by such Rules; and to use its best efforts to cause its customers,
invitees and licensees to abide by such Rules.
7.2 Parking. Spaces allowed: Thirty (30)
-----------
Landlord grants to Tenant a non-exclusive license to use designated parking
areas in the Common Areas for the use of motor vehicles during the term of
this Lease, subject to rights reserved to Landlord. Landlord reserves the
right at any time to grant similar non-exclusive use to other tenants; to
promulgate rules and regulations relating to the use of parking areas by
tenants and employees of tenant; and to make changes in the parking layout.
However, thirty (30) parking spaces shall be available to Tenant. These
-----------
spaces will not be designated unless deemed necessary by Landlord. Tenant
hereby agrees to restrict its parking use to areas as designated by
Landlord from time to time. Tenant agrees not to over burden the parking
facilities and to abide by the rules and regulations. Upon request Tenant
shall provide to Landlord a list of license plate numbers of all employees.
8. CONSTRUCTION OF PREMISES:
------------------------
8.1 Landlord's Obligations.
Landlord shall construct, at its expense, upon the Premises described in
EXHIBIT - B according to plans and specifications to be prepared at
Landlord's expense, conforming to the general construction outline attached
as EXHIBIT -C. Landlord may, without the consent of Tenant, make minor
variations in the site or floor plan attached as EXHIBITS A, B and C, and
in the plans and specifications, but such changes shall not alter the
general appearance, relative location or total amount of floor space of the
Premises.
5
<PAGE>
8.2 Tenant's Acceptance of Premises.
Within ten days after Tenant shall take possession of the Premises, Tenant
shall execute and deliver to Landlord a statement in the form attached as
EXHIBIT E - Acceptance of Premises, indicating any exceptions that may
exist at that time. Failure of Tenant to execute this form shall constitute
an acceptance of the Premises and an acknowledgment by Tenant that the
statements included in the Acceptance of Premises are true and correct
without exception. Prior to acceptance of premises Landlord and Tenant will
walk through the constructed Premises compiling a "punch list" (as that
term is used in construction industry) of items needing correction. The
existence of such "punch list" items shall not postpone the Commencement
Date of this Lease or the obligation of Tenant to pay rent, nor Acceptance
of Premises.
9. REPAIRS, MAINTENANCE, ALTERATIONS AND ADDITIONS:
-----------------------------------------------
9.1 Landlord's Obligations.
Landlord shall maintain in good order, condition and repair the building
and all other portions of the Premises not the obligation of Tenant.
9.2 Tenant's Obligations.
Tenant at its cost shall maintain the Premises in good order, condition and
repair including, but not limited to, the interior surfaces of the
ceilings, walls and floors, all doors, interior and exterior windows,
plumbing, electrical wiring, switches, and lighting fixtures. Tenant
expressly waives the benefits of any statute in effect now or future which
would otherwise give the tenant the right to make repairs at Landlord's
expense or to terminate this lease because of landlord's failure to keep
the Premises in good order, condition and repair.
9.3 Surrender.
Upon expiration of this Lease, Tenant shall surrender the Premises in the
same condition as received, normal wear and tear expected. Tenant, at its
expense, agrees to repair any damages caused by or in connection with the
removal of any personal property, business or trade fixtures, including but
not limited to, repairing the floor and patching and painting the walls
where required by Landlord.
9.4 Alterations and Additions.
Tenant shall not, without Landlord's prior written consent, make any
alterations, additions, improvements or utility installations in or to the
Premises. Any of which, if approved, will become the property of the
Landlord and remain upon the Premises when surrendered, unless Landlord
requests they be removed, which shall be at Tenant's expense.
10. LIENS:
-----
Tenant shall keep the Premises and the Building free from any liens arising
out of work performed, material furnished, or obligations incurred by
Tenant. Tenant shall indemnify, hold harmless and defend Landlord from any
liens or encumbrances arising out of any work performed or materials
furnished by or at the direction of Tenant.
6
<PAGE>
11. ENTRY BY LANDLORD:
-----------------
Landlord and its agents shall have free access to the Premises during all
reasonable hours to determine if the Premises are in good repair and for
any other purpose not inconsistent with Tenant's use, including but not
limited to, the establishment and maintenance of Common Area facilities and
for the purpose of installing, maintaining, and replacing water, gas, sewer
or other pipelines, and telephone or electric lines, and conduits as
Landlord may deem desirable in connection with the development or use of
any other areas in the Property. Landlord shall have the right to show the
Premises to prospective purchasers, tenants or lenders.
12. SIGNS AND WINDOW COVERINGS:
---------------------------
Tenant shall not erect or install any signs, window or door lettering, or
window coverings (drapes, blinds, etc.) without Landlord's prior written
consent. Landlord may withhold its consent for any aesthetic reason. Any
approved installations must be made in full conformance with local code and
governmental regulations and requirements. Landlord may, at its option,
promulgate a sign and window covering program specifying Building standards
for allowable signs and window coverings.
13. INDEMNITY:
---------
Tenant shall defend and indemnify Landlord and hold Landlord harmless from
and against all liability, damages, costs, or expenses, including attorneys
fees, arising from any accident, injury, or damage to any person or
property, occurring in or about the Premises or arising from any act,
omission, or negligence of Tenant or its officers, contractors, licensees,
agents, employees, guests or visitors in or about the Premises, or arising
from any breach or default under this Lease by Tenant.
In no event shall Landlord be liable to Tenant for any damage to the
Premises or for any loss, damage or injury to any property of Tenant
therein occasioned by bursting, rupture, leakage or overflow of any
plumbing or other pipes (including without limitation, water, steam or
refrigerant lines), sprinklers, tanks, drains, drinking fountains or
washstands, or other similar cause in, above, upon or about the Premises or
Building. Tenant agrees to insure its Property against such perils.
14. INSURANCE:
---------
14.1 Fire Insurance.
Landlord shall keep the Building and improvements within which the Premises
are contained insured against loss or damage by fire, with extended
coverage and vandalism and malicious mischief endorsements or their
equivalents, and any other coverage required by the Building lender. The
cost of such insurance shall be included as Direct Expenses.
14.2 Liability Insurance.
Tenant shall, at its expense, maintain for the joint benefit, and in the
names of Tenant and Landlord as co-insureds, with cross liability
endorsement, property damage and personal liability insurance. Such
insurance shall be maintained on the minimum basis of $500,000.00 for
damage to property and $1,000,000.00 for personal injury in any one
occurrence. Each insurance policy shall contain a clause that it cannot be
cancelled or reduced in scope without thirty days prior written notice to
Landlord and to any Building lender of whom the insurer has been notified
in writing. Tenant shall deliver to landlord a certificate of insurance
policy that outlines the coverage specified in Sections 13 and 14 of this
lease prior to the commencement of this Lease and at least thirty days
prior to any future expiration of such policy.
7
<PAGE>
15. ASSIGNMENT AND SUBLETTING:
-------------------------
Tenant shall not, voluntarily or by operation of law, assign or mortgage
this Lease, sublet all or any portion of the Premises or permit the use of
all or part of the Premises by any party other than Tenant without
Landlord's prior written consent, which consent shall not be unreasonably
withheld. If Tenant is a corporation, association or partnership, the
transfer, assignment, or hypothecation of any stock or interest in the
aggregate in excess of fifty-one percent shall be deemed an assignment for
purposes of this Lease, excluding transfers between partners shareholders,
officers, employees or family members.
16. DEFAULTS AND REMEDIES:
---------------------
All rights and remedies of Landlord shall be cumulative, and none shall
exclude any other right or remedy allowed by law. Landlord's remedies in
the event of Tenant's breach or abandonment, without limiting the Landlord
in the exercise of any right or remedy at law or in equity shall include:
a) Maintain this Lease in full force and effect and recover the rent and
any other monetary charges as they become due, without terminating Tenant's
right to possession irrespective of whether Tenant shall have abandoned the
Premises. In the event Landlord elects not to terminate the Lease, Landlord
shall have, the right to attempt to re-lease the Premises at such rent and
upon such conditions and for such a term, and to do all acts necessary to
maintain or preserve the Premises as Landlord deems reasonable and
necessary without being deemed to have elected to terminate the Lease,
including removal of all persons and property from the Premises; such
property may be removed and stored in a public warehouse or elsewhere at
the cost of and for the account of the Tenant. In the event any such re-
leasing occurs, this Lease shall terminate automatically upon the new
Tenant taking possession of the Premises.
b) Terminate Tenant's rights to possession 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, without limitation, the following: (i) any
unpaid Rent at the time of surrender; plus (ii) any unpaid Rent from
surrender to commencement of re-lease plus; (iii) any other amount
necessary to compensate Landlord for all the detriment caused by Tenant's
failure to perform its obligations under this Lease.
17. SUBORDINATION:
-------------
This Lease at Landlord's option shall be subject and subordinate to the
lien of any mortgages or deeds of trust placed on or against the land or
improvements of which the Premises are a part, without the necessity of the
execution and delivery of any further instruments on the part of Tenant to
effectuate such subordination. However, Tenant agrees to execute and
deliver upon demand without charge therefor, such further instruments
evidencing such subordination of this Lease as may be required by Landlord.
18. MISCELLANEOUS:
-------------
18.1 Estoppel Certificate.
Tenant shall at any time upon demand from Landlord execute, acknowledge,
and deliver to Landlord a statement in writing: (a) certifying that this
Lease is 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 date to which the rent and other charges are
paid in advance, if any, and (b) acknowledging that there are not, to
Tenant's knowledge, any uncured defaults on the part of Landlord, or
specifying such default if any are claimed. Any such statement may be
conclusively relied upon by a prospective purchaser or encumbrancer of the
Premises.
8
<PAGE>
If Landlord desires to finance or refinance said Premises, Tenant agrees to
deliver to any lender designated by Landlord such financial statements of
Tenant as may be reasonably required by such lender. Such statements shall
include the past three years' financial statements of Tenant. All such
financial statements shall be received by landlord in confidence and shall
be used only for the purposes herein set forth.
18.2 Waiver.
One or more waivers of any covenant, term or condition of this Lease by
Landlord shall not be construed as a waiver of a subsequent breach of the
same covenant, term or condition. The consent or approval of any act by the
Tenant of a nature requiring consent or approval by Landlord shall not be
deemed to waive or render unnecessary consent to or approval of any
subsequent similar act. No failure of Landlord to enforce any term of this
Lease shall be deemed to be a waiver.
18.3 Entire Agreement.
This Lease contains all covenants and agreements between Landlord and
Tenant relating in any manner to the Rent, use and occupancy of the
Premises and Tenant's use of the Building and other matters set forth in
this Lease. No prior agreement (written or oral) or understanding
pertaining to the same shall be valid or of any force or effect. The
covenants and agreements of this Lease shall not be altered, modified, or
added to except in writing signed by Landlord and Tenant.
18.4 Cost of Suit.
In the event of a lawsuit between Landlord and Tenant, the party who wins
the suit shall be entitled to receive from the party who loses or
voluntarily dismisses a sum to cover reasonable expended attorney's fees
and costs.
18.5 Sale of Premises by Landlord.
Landlord may assign, in whole or in part, Landlord's interest in this Lease
and may sell the Property. In such event Landlord shall be entirely freed
and relieved of all liability under any and all of its covenants and
obligations contained in this Lease.
18.6 Covenants to Bind Successors.
Term and agreements contained in this Lease shall be binding upon either
parties' respective heirs, executors, administrators, personal
representatives and assigns and successors in interest.
18.7 Financial Statement.
It is acknowledged by all parties hereto that the attached financial
statements of Tenant is incorporated as a part of this Lease, that the
information contained therein is true and correct in all respects, and that
accuracy of the information is a significant fact upon which Landlord has
relied in the granting of this Lease.
18.8 Holding Over.
If Tenant remains in possession of all or part of the Premises after the
expiration of the term hereof, such tenancy shall be from month to month
only, and not a renewal hereof or an extension for any further term. In
such case, rent and other monetary sums due hereunder shall be payable in
the amount as last time specified in this Lease and such month-to-month
tenancy shall be subject to every other term, covenant and agreement
contained herein.
9
<PAGE>
18.9 Interest on Past Due Obligations.
Any amount due to Landlord not paid when due shall bear interest at twelve
percent per annum from the due date. Payment of such interest shall not
excuse or cure any default by Tenant under this Lease.
18.10 Notices.
All notices or demands required to be given by Landlord or Tenant shall be
in writing and shall be deemed delivered forty-eight hours after depositing
the notice or demand in the United States mail, postage prepaid, addressed
respectively to the parties as stated in Section 1.
19. BUILD-TO-SUIT CANCELLATION OPTION:
---------------------------------
Tenant may cancel this lease any time after the end of year three, provided
Tenant executes and, performs pursuant to, a contract to purchase a Build-
to-suit Building (BTS) in Southport Business Park from the Landlord. The
BTS building shall be at lease 15,000 square feet in size. BTS Purchase
Price shall be according to the appraised value by an MAI designated
Appraiser, selected by Landlord. If requested by Tenant a second MAI
Appraisal will be performed. Purchase price to be the average of two
appraisals. Both appraisers shall be on the list of accepted appraisers of
Westamerica Bank. Cost of all appraisals and preliminary plans to be
included in cost of BTS. If Tenant fails to execute BTS contract for any
reason, Tenant will pay all out-of-pocket costs expended by Landlord
regarding the BTS. Terms of the purchase to be all cash with the Tenant
responsible to obtain long term financing.
SIGNATURES:
----------
Witnessed by their signatures below, the Landlord and Tenant have executed
this Lease the date and year written in Section 1.
LANDLORD:
- --------
/s/ CHARLES R. STEPHENS
- ----------------------------------------------
Charles R. Stephens
TENANT:
- -------
FISHMAN SUPPLY COMPANY, A California Corporation
/s/ LELAND FISHMAN
- -----------------------------------------
By: Sec./Tres.
10
<PAGE>
EXHIBIT A -- SITE PLAN
- ----------------------
11
<PAGE>
EXHIBIT B -- PREMISES
- ---------------------
12
<PAGE>
EXHIBIT C -- STANDARD SPECIFICATIONS
- -----------------------------------
STANDARD SPECIFICATIONS FOR LEASEHOLD IMPROVEMENTS TO BE CONSTRUCTED
--------------------------------------------------------------------
1. Within 14 days of execution of this lease agreement by both parties,
--
Landlord shall provide Tenant with detailed architectural plans and drawings of
Tenant's improvements in conformity with the floor plan and Standard
Specifications in this EXHIBIT C. Tenant shall have an additional 5 days to
-
approve the plans and/or make modifications to them in accordance with this
EXHIBIT C. The cost of any modifications or changes (including architectural
fees on an hourly basis) shall be borne by the Tenant. An estimate of the costs
for items not covered by this EXHIBIT C shall be provided to Tenant by landlord
and if accepted by Tenant, shall be paid one-half prior to start of construction
and the balance prior to occupancy by tenant.
2. All construction of Tenant's improvements shall be done by Landlord as
"Owner/Builder" in accordance with the approved construction plans.
3. Any subsequent changes, modifications, or alterations requested by Tenant
shall be processed, at Landlord's option, by the Project Architect, and any
additional costs, including architect's fees, shall be at the expense of Tenant,
and Landlord shall have the right to demand payment prior to its performance of
any work in the Premises. No such changes can be made without the written
consent of Landlord and only after written request by Tenant.
4. Tenant agrees that upon substantial completion of the Premises (deemed to
be approval of City of Petaluma building inspector allowing occupancy) it will
accept the Premises in the condition which it may then be and waives any right
or claim against Landlord for any cause, directly or indirectly, arising out of
the condition of the Premises. Landlord shall not be liable for any latent or
patent defects therein; however Landlord warrants the building against latent
defects for a period of one year from occupancy.
5. Tenant hereby releases Landlord from any claim for damages against Landlord
for any delay in the date on which the Premises shall be ready for occupancy by
Tenant. Landlord and Tenant agree that time is of the essence.
6. Although the demising partitions may be on the column center lines, the
column, being thicker than the wall, extends into the Premises. The floor area
calculations are from the centerline of demising partitions. No deduction is
allowed for the columns, sprinkler risers, roof drains, or air conditioning
units serving Tenant and located within the Premises.
7. * The estimated time of completion is September 15, 1989 however Tenant is
free to begin moving inventory and racking into the warehouse portion on or
about September 1st, subject to the approval of the City of Petaluma building
department.
DESCRIPTION OF TENANT IMPROVEMENTS TO BE PROVIDED BY LANDLORD
-------------------------------------------------------------
The following is a description of tenant improvements and limitations of same,
relating the Floor Plan attached as EXHIBIT C1, unless otherwise noted on said
Floor Plan.
1. Partitions and Walls
--------------------
a. Interior demising partitions shall be of steel studs at 16" on center
to roof height with taped drywall.
b. All other interior partitions shall be of steel studs at 16" on center
with taped drywall to ceiling height.
c. All interior partitions shall be finished with one coat of acrylic
latex paint, except warehouse areas to be taped only.
d. All interior doors will be 3' x 6'8", solid core stain grade birch,
with standard passage hardware and metal frames.
13
<PAGE>
2. Floor Coverings
---------------
a. Floor coverings shall be glue down carpet on vinyl composition tile
(VCT) with 2.5" rubber top set base. Building standard carpet is 28 ounce loop
pile or 30 ounce cut pile.
b. Landlord will supply Tenant with range of color samples. Tenant will
have two weeks from delivery to choose colors of carpet, VCT, and base, subject
to approval of Landlord.
c. Warehouse areas will be sealed concrete.
3. Window Coverings
----------------
a. Landlord to install building standard mini blinds for all exterior
windows color to be chosen by Landlord.
4. Ceiling
-------
a. Suspend acoustical ceiling throughout office areas at a height of nine
feet, Armstrong Second Look II (tegular 2' x 4', scored to simulate 2' x 2') or
equivalent.
5. Electrical and Telephone
------------------------
a. Landlord will provide 100 amps of 277/480 three-phase power, and
---
install one 220-volt outlet in the warehouse.
b. Landlord will supply and install 30 110-volt perimeter wall plugs,
--
including one dedicated circuit.
c. Landlord will supply and install additional outlets and switches at
the following unit costs:
<TABLE>
<C> <S> <C>
(1) standard duplex outlet $ 50.00 each
(2) dedicated duplex outlet 100.00 each
(3) standard fourplex outlet 75.00 each
(4) dedicated fourplex outlet 150.00 each
(5) standard or three-way switch 100.00 each
(6) power poles 250.00 each
</TABLE>
d. Recessed 2' x 4' fluorescent light fixtures will be installed
throughout office areas per local building code. Warehouse lighting will be
minimum strip lighting.
e. Landlord will supply and install 10 individual telephone outlets.
--
Outlets will be conduit only with pull strings and no outlets.
f. Within 5 days of execution of this Lease, Tenant shall provide
Landlord with any of Tenant's additional electrical requirements to be installed
by Landlord. Tenant shall pay for all electrical and telephone work except for
work stated herein to be done by Landlord.
6. Heating, Ventilating and Air Conditioning (HVAC)
------------------------------------------------
a. HVAC will be installed throughout the office areas. Ceiling mounted
space heaters will be installed in manned warehouse areas at Landlord's
discretion.
14
<PAGE>
7. Fire Protection
---------------
a. Premises to be fire sprinklered throughout. Fire extinguishers to be
installed per requirements of Petaluma City Fire Marshall.
8. Restrooms, Lounge
-----------------
a. Fully installed restrooms to handicapped standards per EXHIBIT C1--
Floorplan.
b. Restrooms to have VCT flooring; sink with no counters; basic
accessories; no toilet partitions unless more than one toilet; gypsum board
walls and ceiling, textured and painted with enamel; basic light fixture over
mirror; Melamine type plastic wainscoting behind toilet/urinal fixtures.
c. Lounge, if any, will be plumbed with hot and cold water; include 25" x
22" x 8" stainless steel sink; laminated plastic counter top; lower cabinet and
drawers.
9. Counters and Counter Electrical, Misc.
--------------------------------------
a. Landlord will install a counter height short wall as indicated on the
floorplan. If a counter top is desired its manufacture and installation shall be
at Tenant's expense.
b. Electrical plugs for adjoining desk areas can be installed in the
short wall at no additional expense subject to quantity limitation per paragraph
5b. above. Floor plugs can be installed at the cost and expense of the Tenant.
c. Landlord agrees to install three windows, 3' x 4', as indicated on the
floorplan at Tenant's expense, subject to approval, not to exceed $1,000.00
15
<PAGE>
EXHIBIT C1 -- FLOOR PLAN
- ------------------------
16
<PAGE>
EXHIBIT D -- RULES AND REGULATIONS
- ----------------------------------
RULES AND REGULATIONS WHICH CONSTITUTE A PART OF THIS LEASE
-----------------------------------------------------------
a. Tenant shall not mar, drive nails, screw, bore, or drill into, paint
or in any way deface the exterior walls, roof, foundations, bearing walls,
columns or pillars without the prior written consent of Landlord. The expense of
repairing any breakage, stoppage or damage resulting from a violation of this
rule shall be borne by Tenant.
b. Tenant shall not do anything in the Premises, or bring or keep
anything therein, which will increase the risk of fire or the rate of fire
insurance. Tenant shall not use any machinery in the Premises which may cause
any unreasonable noise or jar or tremor the floors or walls, or which by its
weight might injure the floors of the Premises.
c. Tenant shall not make or permit any loud, unusual, or improper noises,
nor interfere with any other tenants and shall park its vehicles in the areas
designated for employee parking. Tenant shall not throw cigar or cigarette butts
or other substances or litter of any kind in or about the property.
d. All freight must be moved promptly into, within and out of the
Premises by rear overhead doors and only according to such regulations as may be
posted by Landlord.
e. Tenant shall not loiter on the lawn areas or other common areas of the
Property, nor shall it obstruct the sidewalks, entry passages, pedestrian
passageways, driveways, entrances and exits to the Property, and they shall use
them only as passageways to and from their respective work areas.
f. Tenant is required to observe all security regulations issued by the
Landlord.
g. Landlord reserves the right to change or rescind or add to these rules
and regulations. Landlord shall not be responsible to Tenant or any other person
for the non-observance or violation of these rules and regulations by any other
tenant or person. No waiver of any rule or regulation by Landlord shall be
effective unless expressed in writing and signed by landlord or his authorized
agent.
h. Landlord acknowledges receipt of, and accepts in total, the list of
products normally carried and stocked by Tenant as of the date of this
agreement.
17
<PAGE>
EXHIBIT E -- ACCEPTANCE OF PREMISES
- -----------------------------------
ACCEPTANCE OF PREMISES
----------------------
Date: June 2, 1989
------------
Gentlemen:
The undersigned as Tenant under that certain Lease made and entered into by and
between, Charles R. Stephens, as Landlord, and the undersigned as Tenant, for
space in the development commonly known as 715 Northpoint Boulevard, Petaluma;
hereby certifies that the undersigned has entered into occupancy of the premises
demised under said Lease, which is in full force and effect and has not been
modified, supplemented or amended in any way, except by instrument dated June 2,
-------
1989; and that all conditions under said Lease to be performed by Landlord
- -----
have been satisfied. On this date there are no existing defenses or offsets
which the undersigned has against the enforcement of said Lease by Landlord.
Rental in the amount of ____________________ for the period of _______________
has been paid in advance.
Sincerely,
____________________________
TENANT
18
<PAGE>
STANDARD INDUSTRIAL SUBLEASE
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
1. PARTIES. This Sublease, dated, for reference purposes only, JUNE 15, 1998,
-------------
is made by and between FISHMAN SUPPLY COMPANY, INC. (herein called "Sublessor")
----------------------------
and GEERLINGS & WADE, INC.; A MASSACHUSETTS CORPORATION (herein called
---------------------------------------------------
"Subleassee").
2. PREMISES. Sublessor hereby subleases to Sublessee and Sublessee hereby
subleases from Sublessor for the term, at the rental, and upon all of the
conditions set forth herein, that certain real property situated in the County
of SONOMA State of California, commonly known as 715-M SOUTHPOINT BOULEVARD,
------ ---------------------------
PETALUMA, CALIFORNIA and described as 13,815 SQUARE FEET (3,000 SQ. FT. OFFICE,
- -------------------- -----------------------------------------
10,815 SQ. FT. WHSE.)
- ---------------------
Said real property, including the land and all improvements thereon, is
hereinafter called the "Premises."
3. TERM.
3.1 TERM. The term of this Sublease shall be for 15 MONTHS commencing on
---------
AUGUST 1, 1998 and ending on SEPTEMBER 30, 1999 unless sooner terminated
-------------- ------------------
pursuant to any provision hereof.
3.2 DELAY IN COMMENCEMENT. Notwithstanding said commencement date, if for any
reason Sublessor cannot deliver possession of the Premises to Sublessee on
said date. Sublessor shall not be subject to any liability therefore, nor
shall such failure affect the validity of this Lease or the obligations of
Sublessee hereunder or extend the term hereof but in such case Sublessee shall
not be obligated to pay rent until possession of the Premises is tendered to
Sublessee; provided, however, that if Sublessor shall not have delivered
possession of the Premises within sixty (60) days from said commencement date,
Sublessee may, at Sublessee's option, by notice in writing to Sublessor within
ten (10) days thereafter, cancel this Sublease, in which event the parties
shall be discharged from all obligations thereunder. If Sublessee occupies
the Premises prior to said commencement date, such occupancy shall be subject
to all provisions hereof, such occupancy shall not advance the termination
date and Sublessee shall pay rent for such period at the initial monthly rates
set forth below.
4. RENT. Sublessee shall pay to Sublessor as rent for the Premises equal
monthly payments of $7,100.00, in advance on the 1ST day of each month of the
--------- ---
term hereof. Sublessee shall pay Sublessor upon the execution hereof $7,100.00
---------
as rent for JULY AND AUGUST 1998.
--------------------
Rent for any period during the term hereof which is for less than one month
shall be a prorata portion of the monthly installment. Rent shall be payable
in lawful money of the United States to Sublessor at the address stated herein
or to such other persons or at such other places as Sublessor may designate in
writing.
5. SECURITY DEPOSIT. Sublessee shall deposit with Sublessor upon execution
hereof $12,100.00 as security for Sublessee's faithful performance of
-----------
Sublessee's obligations hereunder. If Sublessee fails to pay rent or other
charges due hereunder, or otherwise defaults with respect to any provision of
this Sublease, Sublessor may use, apply or retain all or any portion of said
deposit for the payment of any rent or other charge in default or for the
payment of any other sum to which Sublessor may become obligated by reason of
Sublessee's default, or to compensate Sublessor for any loss or damage of any
other sum to which Sublessor may become obligated by reason of Sublessee's
default, or to compensate Sublessor for any loss or damage which Sublessor may
suffer thereby. If Sublessor so uses or applies all or any portion of said
deposit, Sublessee shall within ten (10) days after written demand therefore
deposit cash will Sublessor in an amount sufficient to restore said deposit to
the full amount hereinabove stated and Sublessee's failure to do so shall be a
material breach of this Sublease. Sublessor shall not be required to keep said
deposit separate from its general accounts. If Sublessee performs all of
Sublessee's obligations hereunder, said deposit, or so much thereof as has not
theretofore been applied by Sublessor, shall be returned, without payment of
interest or other increment for its use to Sublessee (or at Sublessor's option,
to the last assignee, if any, of Sublessee's interest hereunder) at the
expiration of the term hereof, and after Sublessee has vacated the Premises. No
trust relationship is created herein between Sublessor and Sublessee with
respect to said Security Deposit.
6. USE.
6.1 USE. The Premises shall be used and occupied only for SALES,
------
ADMINISTRATION AND STORAGE OF WINE, INCLUDING RETAIL AND MAIL ORDER SALES OF
----------------------------------------------------------------------------
WINE and for no other purposes.
----
6.2 COMPLIANCE WITH LAW.
(a) Sublessor warrants to Sublessee that the Promises, in its existing
state, but without regard to the use for which Sublessee will use the
Premises, does not violate any applicable building code regulation or
ordinance at the time that this Sublease is executed. In the event that it
is determined that this warranty has been violated, then it shall be the
obligation of the Sublessor, after written notice from Sublessee, to
promptly, at Sublessor's sole cost and expense, rectify any such violation.
In the event that Sublessee does not give to Sublessor written notice of
the violation of this warranty within I year from the commencement of the
term of this Sublease, it shall be conclusively deemed that such violation
did not exist and the correction of the same shall be the obligation of the
Sublessee.
(b) Except as provided in paragraph 6.2(a). Sublessee shall, at Sublessee's
expense, comply promptly with all applicable statutes, ordinances, rules,
regulations, orders, restrictions of record, and requirements in effect
during the term or any part of the term hereof regulating the use by
Sublessee of the Premises. Sublessee shall not use or permit the use of the
Premises in any manner that will tend to create waste or a nuisance or, if
there shall be more than one tenant of the building containing the
Premises, which shall tend to disturb such other tenants.
6.3 CONDITION OF PREMISES. Except as provided in paragraph 6.2(a) Sublessee
hereby accepts the Premises in their condition existing as of the date of the
execution hereof, subject to all applicable zoning, municipal, county and
state laws, ordinances, and regulations governing and regulating the use of
the Premises, and accepts this Sublease subject thereto and to all matters
disclosed thereby and by any exhibits attached hereto. Sublessee acknowledges
that neither Sublessor nor Sublessor's agents have made any representation or
warranty as to the suitability of the Premises for the conduct of Sublessee's
business.
7. MASTER LEASE
7.1 Sublessor is the lessee of the Premises by virtue of a lease, hereinafter
referred to as the "Master Lease," a copy of which is attached hereto marked
Exhibit 1, dated SEPTEMBER 1ST, 1989 wherein CHARLES R. STEPHENS is the
------------------- -------------------
lessor, hereinafter referred to as the "Master Lessor."
7.2 This Sublease is and shall be at all times subject and subordinate to the
Master Lease.
7.3 The terms, conditions and respective obligations of Sublessor and
Sublessee to each other under this Sublease shall be the terms and conditions
of the Master Lease except for those provisions of the Master Lease which are
directly contradicted by this Sublease in which event the terms of this
Sublease document shall control over the Master Lease. Therefore, for the
purposes of this Sublease, wherever in the Master Lease the word "Lessor" is
used it shall be deemed to mean the Sublessor herein and wherever in the
Master Lease the word "Lessee" is used it shall be deemed to mean the
Sublessee herein.
7.4 During the term of this Sublease and for all periods subsequent for
obligations which have arisen prior to the termination of this Sublease,
Sublessee does hereby expressly assume and agree to perform and comply with,
for the benefit of Sublessor and Master Lessor, each and every obligation of
Sublessor under the Master Lease except for the following paragraphs which are
excluded therefrom:
<PAGE>
ADDENDUM I
TO THE STANDARD INDUSTRIAL SUBLEASE
BY AND BETWEEN
FISHMAN SUPPLY COMPANY, INC., SUBLESSOR
AND
GEERLINGS & WADE PERSONAL WINE SERVICE, INC., SUBLESSEE
DATED: JUNE 15, 1998
7.4.1 GENERAL REPRESENTATIONS AND WARRANTIES OF THE SUBLESSOR.
- ----- --------------------------------------------------------
Definition. As used in this Sublease, the term "Hazardous Material" means any
- -----------
flammable items, explosives, radioactive materials, hazardous or toxic
substances, material or waste or related materials, including any substances
defined as or including in the definition of "hazardous substances," "hazardous
wastes," "infectious wastes," "hazardous materials" or "toxic substances" now or
subsequently regulated under any federal, state or local laws, regulations or
ordinances including, without limitation, oil, petroleum-based products, paints,
solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonia
compounds and other chemical products, asbestos, PCB's and similar compounds,
and including any different products and materials which are subsequently found
to have adverse effects on the environment or the health and safety of persons.
Environmental. The Sublessor represents and warrants to the Sublessee that the
- --------------
statements in this paragraph 7.4.1 Environmental are correct and complete as of
-------------
the Sublease commencement date. Sublessor has not caused or permitted any
Hazardous Material to be discharged, released, spilled or disposed of on, in,
under or about the Premises or Property by Sublessor, its affiliates, agents,
employees, contractors, sublessee's, assignees or invitees. Sublessor shall
indemnify, defend and hold Sublessee harmless from and against any and all
actions (including, without limitation, remedial or enforcement actions of any
kind, administrative or judicial proceedings, and orders or judgments arising
out of or resulting therefrom), costs, claims, damages (including, without
limitation, punitive damages), expenses (including, without limitation
attorneys', consultants' and experts' fees, court costs and amounts paid in
settlement of any claims or actions), fines, forfeitures or other civil,
administrative or criminal penalties, injunctive or other relief (whether or not
based upon personal injury, property damage, or contamination of, or adverse
effects upon, the environment, water tables or natural resources), liabilities
or losses arising from a breach of this representation by Sublessor, its
affiliates, agents, employees, contractors, Sublessee's, assignees or invitees.
Notice. In the event that Hazardous Materials are discovered upon, in, or under
- -------
the Premises, and any governmental agency or entity having jurisdiction over the
Premises requires the removal of such Hazardous Materials, Sublessor shall be
responsible for removing those Hazardous Materials arising out of or related to
the use or occupancy of the Premises by Sublessor or its, affiliates, agents,
employees, contractors, sublessees, assignees or invitees but not those of its
predecessors. Sublessor immediately shall notify Sublessee in writing of: (i)
any spill, release, discharge or disposal of any Hazardous Material in, on or
under the Premises, the Property or any portion thereof, (ii) any enforcement,
clean-up, removal or other governmental or regulatory action instituted,
contemplated, or threatened (if Sublessor has notice thereof) pursuant to any
Hazardous Material Laws; (iii) any claim made or threatened by any person
against Sublessor, the Premises, relating to damage, contribution, cost
recovery, compensation, loss or injury resulting from or claimed to result from
any Hazardous Materials; and (iv) any reports made to any governmental agency or
entity arising out of or in connection with any Hazardous Materials in, on under
or about or removed from the Premises, including any complaints, notices,
warnings reports or asserted violations in connection therewith. Sublessor also
shall supply to Sublessee as promptly as possible, and in any event within (5)
business days after Sublessor first receives or send the same, copies of all
claims, reports, complaints, notices, warnings or asserted violations relating
in any way to the Premises, the Property or Sublessee's use or occupancy
thereof.
Condition of Premises at Sublease Commencement. Sublessor represents and
- -----------------------------------------------
warrants to the Sublessee that the statements in this paragraph 7.4.1 Condition
---------
of Premises at Sublease Commencement are correct, and complete as of the
- ------------------------------------
Sublease commencement date. Sublessor has complied with paragraph 9.2 Tenant's
Obligations of the Master Lease and that the Premises are in the same condition
as received by Sublessor in September 1989 with the exception of normal wear and
tear. Sublessor shall repair any damages caused by or in conjunction with the
removal of any personal property, business or trade fixtures, including but not
limited to, repairing the floor and patching and painting the walls where
required by Landlord as agreed to by Sublessor in the Master Lease.
Survival. The respective rights and obligations of Sublessee and Sublessor under
this subsection shall survive the expiration or earlier termination of this
Sublease.
/s/ Leland Fishman 6/17/98
- -------------------------- ---------------------------
Sublessor Date
/s/ David R. Pearce 6/16/98
- -------------------------- ---------------------------
Sublessor Date
Vice President
Geerlings & Wade, Inc.
<PAGE>
7.5 The obligations that Sublessee has assumed under paragraph 7.4 hereof are
hereinafter referred to as the "Sublessee's Assumed Obligations." The
obligations that Sublessee has not assumed under paragraph 7.4 hereof are
hereinafter referred to as the "Sublessor's Remaining Obligations."
7.6 Sublessee shall hold Sublessor free and harmless of and from all
liability, judgements, costs, damages, claims or demands, including reasonable
attorneys fees, arising out of Sublessee's failure to comply with or perform
Sublessor's Assumed Obligations.
7.7 Sublessor agrees to maintain the Master Lease during the entire term of
this Sublease, subject, however, to any earlier termination of the Master
Lease without the fault of the Sublessor, and to comply with or perform
Sublessor's Remaining Obligations and to hold Sublessee free and harmless of
and from all liability, judgments, costs, damages, claims or demands arising
out of Sublessor's failure to comply with or perform Sublessor's Remaining
Obligations.
7.8 Sublessor represents to Sublessee that the Master Lease is in full force
and effect and that no default exists on the part of any party to the Master
Lease.
8. ASSIGNMENT OF SUBLEASE AND DEFAULT.
8.1 Sublessor hereby assigns and transfers to Master Lessor the Sublessor's
interest in this Sublease and all rentals and income arising therefrom,
subject however to terms of Paragraph 8.2 hereof.
8.2 Master Lessor, by executing this document, agrees that until a default
shall occur in the performance of Sublessor's Obligations under the Master
Lease, that Sublessor may receive, collect and enjoy the rents accruing under
this Sublease. However, if Sublessor shall default in the performance of its
obligations to Master Lessor then Master Lessor may, at its option, receive
and collect, directly from Sublessee, all rent owing and to be owed under this
Sublease. Master Lessor shall not, by reason of this assignment of the
Sublease nor by reason of the collection of the rents from the Sublessee, be
deemed liable to Sublessee for any failure of the Sublessor to perform and
comply with Sublessor's Remaining Obligations.
8.3 Sublessor hereby irrevocably authorizes and directs Sublessee, upon
receipt of any written notice from the Master Lessor stating that a default
exists in the performance of Sublessor's obligations under the Master Lease,
to pay to Master Lessor the rents due and to become due under the Sublease.
Sublessor agrees that Sublessee shall have the right to rely upon any such
statement and request from Master Lessor, and that Sublessee shall pay such
rents to Master Lessor without any obligation or right to inquire as to
whether such default exists and notwithstanding any notice from or claim from
Sublessor to the contrary and Sublessor shall have no right or claim against
Sublessee for any such rents so paid by Sublessee.
8.4 No changes or modifications shall be made to this Sublease without the
consent of Master Lessor.
9. CONSENT OF MASTER LESSOR.
9.1 In the event that the Master Lease requires that Sublessor obtain the
consent of Master Lessor to any subletting by Sublessor then, this Sublease
shall not be effective unless, within 10 days of the date hereof, Master
Lessor signs this Sublease thereby giving its consent to this Subletting.
9.2 In the event that the obligations of the Sublessor under the Master Lease
have been guaranteed by third parties then this Sublease, nor the Master
Lessor's consent, shall not be effective unless, within 10 days of the date
hereof, said guarantors sign this Sublease thereby giving guarantors consent
to this Sublease and the terms thereof.
9.3 In the event that Master Lessor does give such consent then:
(a) Such consent will not release Sublessor of its obligations or alter the
primary liability of Sublessor to pay the rent and perform and comply with
all of the obligations of Sublessor to be performed under the Master Lease.
(b) The acceptance of rent by Master Lessor from Sublessee or any one else
liable under the Master Lease shall not be deemed a waiver by Master Lessor
of any provisions of the Master Lease.
(c) The consent to this Sublease shall not constitute a consent to any
subsequent subletting or assignment.
(d) In the event of any default of Sublessor under the Master Lease, Master
Lessor may proceed directly against Sublessor, any guarantors or any one
else liable under the Master Lease or this Sublease without first
exhausting Master Lessor's remedies against any other person or entity
liable thereon to Master Lessor.
(e) Master Lessor may consent to subsequent sublettings and assignments of
the Master Lease or this Sublease or any amendments or modifications
thereto without notifying Sublessor nor any one else liable under the
Master Lease and without obtaining their consent and such action shall not
relieve such persons from liability.
(f) In the event that Sublessor shall default in its obligations under the
Master Lease, then Master Lessor, at its option and without being obligated
to do so, may require Sublessee to attorn to Master Lessor in which event
Master Lessor shall undertake the obligations of Sublessor under this
Sublease from the time of the exercise of said option to termination of
this Sublease but Master Lessor shall not be liable for any prepaid rents
nor any security deposit paid by Sublessee, nor shall Master Lessor be
liable for any other defaults of the Sublessor under the Sublease.
9.4 The signatures of the Master Lessor and any Guarantors of Sublessor at
the end of this document shift constitute their consent to the terms of this
Sublease.
9.5 Master Lessor acknowledges that, to the best of Master Lessor's
knowledge, no default presently exists under the Master Lease of obligations
to be performed by Sublessor and that the Master Lease is in full force and
effect.
9.6 In the event that Sublessor defaults under its obligations to be
performed under the Master Lease by Sublessor, Master Lessor agrees to deliver
to Sublessee a copy of any such notice of default. Sublessee shall have the
right to cure any default of Sublessor described in any notice of default
within ten days after service of such notice of default on Sublessee. If such
default is cured by Sublessee then Sublessee shall have the right of
reimbursement and offset from and against Sublessor.
10. ATTORNEY'S FEES. If any party or the Broker named herein brings an action
to enforce the terms hereof or to declare rights hereunder, the prevailing party
in any such action, on trial and appeal, shall be entitled to his reasonable
attorney's fees to be paid by the losing party as fixed by the Court. The
provision of this paragraph shall inure to the benefit of the Broker named
herein who seeks to enforce a right hereunder.
11. ADDITIONAL PROVISIONS. (If there are no additional provisions draw a line
from this point to the next printed word after the space left here. If there
are additional provisions place the same here.)
1. This Lease is conditioned on Sublessee receiving from Governmental
Authorities all permits required to sell alcoholic beverages. This
includes receipt of a Liquor License from the State of California,
Department of Alcohol Beverage Control (ABC) and a conditional use permit
(if required) from the City of Petaluma, CA. Sublessee agrees to
diligently pursue all required permits. Should Sublessee be unsuccessful
in securing said permits, he shall indicate so in writing, and the
Sublease shall be considered void and all unused rent and security
deposits shall be refunded by Sublessor to Sublessee.
2. Addendum 1 (attached) is hereby made a part of this agreement.
Fishman Supply Co.
Leland Fishman
By: /s/ Leland Fishman
------------------
Sublessor
Geerlings & Wade, Inc.
David R. Pearce, Vice President
By: /s/ David R. Pearce
-------------------
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<PAGE>
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<PERIOD-START> APR-01-1998
<PERIOD-END> JUN-30-1998
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0
0
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