STANDARD INDUSTRIAL LEASE
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BLICKMAN TURKUS
COMMERCIAL INDUSTRIAL REAL ESTATE
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An Affiliate of The Woodmont Companies
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1. PARTIES. This Lease, dated, for reference purposes only, December 1,
1995 is made by and between ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ an undivided 1/2 interest and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and undivided 1/2 interest as
Tenants in common (herein called "Lessor") and S&D Foods, a California
corporation (herein called ("Lessee").
2. PREMISES. Lessor hereby leases to Lessee and Lessee leases from Lessor
for the term, at the rental, and upon all of the conditions set forth herein,
that certain real property situated in the County of Santa ▇▇▇▇▇, State of
California, commonly known as ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇#
727-21-035-000 and described as an industrial building of 24,000 s.f., an
office structure of approximately 900 s.f. and the contiguous yard area
surrounding the buildings. Reciprocal use of all driveways and Premises
entry/exit points as shown on Exhibit "A" site map and Exhibit "B" parcel map.
Said real property including the land and all improvements thereon, is herein
called "the Premises".
3. TERM.
3.1 TERM. The term of this Lease shall be for eighty-four months (84)
commencing on 30 days after completion of Tenant improvements and ending on
April 30, 2003 unless sooner terminated pursuant to any provision hereof.
Tenant shall have the right to extend the Lease for three (3) additional five
(5) year options under the same terms.
3.2 DELAY IN COMMENCEMENT. Notwithstanding said commencement date, if
for any reason Lessor cannot deliver possession of the Premises to Lessee on
said date, Lessor shall not be subject to any liability therefor, nor shall
such failure affect the validity of this Lease or the obligations of Lessee
hereunder or extend the term hereof, but in such case Lessee shall not be
obligated to pay rent until possession of the Premises is tendered
to Lessee; provided, however, that if Lessor shall not have delivered
possession of the Premises within sixty (60) days from said commencement
date, Lessee may, at Lessee's option, by notice in writing to Lessor within
ten (10) days thereafter, cancel this Lease, in which event the parties shall
be discharged from all obligations hereunder. If Lessee 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
Lessee shall pay rent for such period at the initial monthly rates set forth
below.
4. RENT. Lessee shall pay to Lessor as rent for the Premises equal monthly
payments of $6,480.00, in advance, on the 1st day of each month of the term
hereof. Lessee shall pay Lessor upon the execution hereof $13,992.00 as rent
for the first month of the term or March 1995 and the last month of the term
or April 2003. Rental rate shall remain at base rate for months 1 through 24
inclusive. Rental rate shall increase by three percent (3%) annually each
succeeding year throughout the term of the Lease. Lease rent schedule is
attached as Exhibit "D".
Rent for any period during the term hereof which is for less than one month
shall be a pro rata portion of the monthly installment. Rent shall be
payable in lawful money of the United States to Lessor at the address stated
herein or to such other persons or at such other places as Lessor may
designate in writing.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof
$6,480.00 as security for Lessee's faithful performance of Lessee's
obligations hereunder. If Lessee fails to pay rent or other charges due
hereunder, or otherwise defaults with respect to any provision of this Lease,
Lessor 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 Lessor may become obligated by reason of Lessee's default,
or to compensate Lessor for any loss or damage which Lessor may suffer
thereby. If Lessor so uses or applies all or any portion of said deposit,
Lessee shall within ten (10) days after written demand therefor deposit
cash with Lessor in an amount sufficient to restore said deposit to the full
amount hereinabove stated and Lessee's failure to do so shall be a material
breach of this Lease. Lessor shall not be required to keep said deposit
separate from its general accounts. If Lessee performs all of Lessee's
obligations hereunder, said deposit, or so much thereof as has not
theretofore been applied by Lessor, shall be returned, without payment of
interest or other increment for its use, to Lessee (or, at Lessor's option,
to the last assignee, if any, of Lessee's interest hereunder) at the
expiration of the term hereof, and after Lessee has vacated the Premises. No
trust relationship is created herein between Lessor and Lessee with respect
to said Security Deposit.
6. USE.
6.1 USE. The Premises shall be used and occupied only for food
preparation, processing, packing and distribution and for no other purpose.
6.2 COMPLIANCE WITH LAW.
(a) Lessor warrants to Lessee that the Premises, in its existing
state, but without regard to the use for which Lessee will use the
Premises, does not violate any applicable building code, regulation or
ordinance at the time this Lease is executed. In the event it is determined
that this warranty has been violated, then it shall be the obligation of the
Lessor, after written notice from Lessee, to promptly, at Lessor's sole cost
and expense, rectify any such violation. In the event Lessee does not give
to Lessor written notice of the violation of this warranty within 1 year from
the commencement of the term of this Lease, it shall be conclusively deemed
that such violation did not exist and the correction of the same shall be the
obligation of the Lessee.
(b) Except as provided in paragraph 6.2 (a), Lessee shall, at
Lessee'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
Lessee of the Premises. Lessee shall not use nor 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 in the building containing the Premises,
shall tend to disturb such other tenants.
6.3 CONDITION OF PREMISES. Except as provided in paragraph 6.2 (a)
Lessee 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 Lease subject thereto and to all matters
disclosed thereby and by any exhibits attached hereto. Lessee acknowledges
that neither Lessor nor Lessor's agent has made any representation or
warranty as to the suitability of the Premises for the conduct of Lessee's
business.
7. MAINTENANCE REPAIRS AND ALTERNATIONS.
7.1 LESSOR'S OBLIGATIONS. Subject to the provisions of Paragraphs
6.2(a) and 9 and except for damage caused by any negligent or intentional act
or omission of Lessee, Lessee's agents, employees, or invitees in which event
Lessee shall repair the damage, Lessor, at Lessor's expense, shall keep in
good order, condition and repair the foundations, exterior walls and the
exterior roof of the Premises. Lessor shall not, however, be obligated to
paint such exterior, nor shall Lessor be required to maintain the interior
surface of exterior walls, windows, doors or plate glass. Lessor shall have
no obligation to make repairs under this Paragraph 7.1 until a reasonable
time after receipt of written notice of the need for such repairs. Lessee
expressly waives the benefits of any statute now or hereafter in effect which
would otherwise afford Lessee the right to make repairs at Lessor's expense
or to terminate this Lease because of Lessor's failure to keep the Premises
in good order, condition and repair.
7.2 LESSEE'S OBLIGATIONS.
(a) Subject to the provisions of Paragraphs 6.2(a), 7 and 9,
Lessee, at Lessee's expense, shall keep in good order, condition and repair
the Premises and every part thereof (whether or not the damaged portion of
the Premises or the means of repairing the same are reasonably or readily
accessable to Lessee) including, without limiting the generality of the
foregoing, all plumbing, heating, airconditioning, ventilating, electrical
and lighting facilities and equipment within the Premises, fixtures, interior
walls and interior surface of exterior walls, ceilings, windows, doors, plate
glass, and skylights, located within the Premises, and all landscaping,
driveways, parking lots, fences and signs located in the Premises and all
sidewalks and parkways adjacent to the Premises. Lessee expressly waives the
benefit of any statute now or hereinafter in effect which would otherwise
afford Lessee the right to make repairs at Lessor's expense or to terminate
this Lease because of Lessor's failure to keep the Premises in good order,
condition and repair.
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(b) If Lessee fails to perform Lessee's obligations under this
Paragraph 7.2, Lessor may at Lessor's option enter upon the Premises after 10
days' prior written notice to Lessee, and put the same in good order,
condition and repair, and the cost thereof together with interest thereon at
the rate of 10% per annum shall be due and payable as additional rent to
Lessor together with Lessee's next rental installment.
(c) On the last day of the term hereof, or on any sooner termination,
Lessee shall surrender the Premises to Lessor in the same condition as
received, broom clean, ordinary wear and tear excepted. Lessee shall
repair any damage to the Premises occasioned by the removal of its trade
fixtures, furnishings and equipment pursuant to Paragraph 7.3(d), which
repair shall include the patching and filling of holes and repair of
structural damage.
7.3 ALTERATIONS AND ADDITIONS.
(a) Lessee shall not, without Lessor's prior written consent make any
alterations, improvements, additions, or Utility installations in, on or
about the Premises, except for nonstructural alterations not exceeding $1,000
in cost. As used in this Paragraph 7.3 the term "Utility Installation" shall
mean bus ducting, power panels, wiring, fluorescent fixtures, space heaters,
conduits, airconditioning and plumbing. Lessor may require that Lessee remove
any or all of said alterations, improvements, additions or Utility installations
at the expiration of the term, and restore the Premises to their prior
condition. Lessor may require Lessee to provide Lessor, at Lessee's sole cost
and expense, a lien and completion bond in an amount equal to one and
one-half times the estimated cost of such improvements, to insure Lessor
against any liability for mechanic's and materialmen's liens and to insure
completion of the work. Should Lessee make any alterations, improvements,
additions or Utility installations without the prior approval of Lessor,
Lessor may require that Lessee remove any or all of such.
(b) Any alterations, improvements, additions or Utility installations
in, or about the Premises that Lessee shall desire to make and which requires
the consent of the Lessor shall be presented to Lessor in written form, with
proposed detailed plans. If Lessor shall give its consent the consent shall
be deemed conditioned upon Lessee acquiring a permit to do so from appropriate
governmental agencies, the furnishing of a copy thereof to Lessor prior to
to the commencement of the work and the compliance by Lessee of all conditions
of said permit in a prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or for use in
the Premises, which claims are or may be secured by any mechanics' or
materialmen's lien against the Premises or any interest therein. Lessee
shall give Lessor not less than ten (10) days' notice prior to the
commencement of any work in the Premises, and Lessor shall have the right to
post notices of non-responsibility in or on the Premises as provided by law.
If Lessee shall, in good faith, contest the validity of any such lien, claim
or demand, then Lessee shall, at its sole expense defend itself and Lessor
against the same and shall pay and satisfy any such adverse judgment that may
be rendered thereon before the enforcement thereof against the Lessor or the
Premises, upon the condition that if Lessor shall require, Lessee shall
furnish to Lessor a surety bond satisfactory to Lessor in an amount equal to
such contested lien claim or demand indemnifying Lessor against liability for
the same and holding the Premises free from the effect of such lien or claim.
In addition, Lessor may require Lessee to pay Lessor's attorneys fees and costs
in participating in such action if Lessor shall decide it is to its best
interest to do so.
(d) Unless Lessor requires their removal, as set forth in Paragraph
7.3(a), all alterations, improvements, additions and Utility installations
(whether or not such Utility installations constitute trade fixtures of
Lessee), which may be made on the Premises, shall become the property of
Lessor and remain upon and be surrendered with the Premises at the expiration
of the term. Notwithstanding the provisions of this Paragraph 7.3(d),
Lessee's machinery and equipment, other than that which is affixed to the
Premises so that it cannot be removed without material damage to the
Premises, shall remain the property of Lessee and may be removed by Lessee
subject to the provisions of Paragraph 7.2(c).
8. INSURANCE; INDEMNITY.
8.1 LIABILITY INSURANCE. Lessee shall, at Lessee'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 Lessor and Lessee
against any liability arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto. Such
insurance shall be a combined single limit policy in an amount not less than
$500,000. The policy shall contain cross liability endorsements and shall
insure performance by Lessee of the indemnity provisions of this Paragraph 8.
The limits of said insurance shall not, however, limit the liability of
Lessee hereunder. In the event that the Premises constitute a part of a
larger property said insurance shall have a Lessor's Protective Liability
endorsement attached thereto. If Lessee shall fail to procure and maintain
said insurance Lessor may, but shall not be required to, procure and maintain
the same, but at the expense of Lessee. Not more frequently than each 5
years, if, in the reasonable opinion of Lessor, the amount of liability
insurance required hereunder is not adequate, Lessee shall increase said
insurance coverage as required by Lessor. Provided, however that in no event
shall the amount of the liability insurance increase be more than fifty
percent greater than the amount thereof during the preceding five years of
the term of this lease. However, the failure of Lessor to require any
additional insurance coverage shall not be deemed to relieve Lessee from any
obligations under this Lease.
8.2 PROPERTY INSURANCE.
(a) Lessor shall obtain and keep in force during the term of this Lease
a policy or policies of insurance covering loss or damage to the Premises,
but not Lessee's fixtures, equipment or tenant improvements in the amount of
the full replacement value thereof, providing protection against all perils
included within the classification of fire, extended coverage, vandalism,
malicious mischief, special extended perils (all risk) but not plate glass
insurance. In addition, the Lessor shall obtain and keep in force, during
the term of this Lease, a policy of rental income insurance covering a period
of six months, with loss payable to Lessor which insurance shall also cover
all real estate taxes and insurance costs for said period. In the event that
the Premises contains sprinklers then the insurance coverage shall include
sprinkler leakage insurance.
(b) Lessee shall pay to Lessor, during the term hereof, in addition to
the rent, the amount of any increase in premiums for the insurance required
under this Paragraph 8.2 over and above such premiums paid during the Base
Period, as hereinafter defined, whether such premium increase shall be the
result of the nature of Lessee's occupancy, any act or omission of Lessee,
requirements of the holder of a mortgage or deed of trust covering the
Premises, or increased valuation of the Premises or general rate increases.
In the event that the Premises have been occupied previously the words "Base
Period" shall mean the last twelve months of the prior occupancy and in the
event that the Premises have never been previously occupied the words "Base
Period" shall mean the lowest premium reasonably obtainable for the said
insurance for the Premises assuming the most nominal use of the Premises.
Provided, however, in lieu of the Base Period the parties hereto may insert
a dollar amount at the end of this sentence which figure shall be considered
as the insurance premium for the Base Period. $ NOT APPLICABLE.
(c) If the Premises being leased herein are part of a larger property,
then Lessee shall not be responsible for paying any increase in the property
insurance caused by the acts or omissions of any other tenant of the building
of which the Premises are a part.
(d) Lessee shall pay any such premium increases to Lessor within 30
days after receipt by Lessee of a copy of the premium statement or other
satisfactory evidence of the amount due. If the insurance policies
maintained hereunder cover other improvements in addition to the Premises,
Lessor shall also deliver to Lessee a statement of the amount of such
increase attributable to the Premises and showing in reasonable detail the
manner in which such amount was computed. If the term of this Lease shall
not expire concurrently with the expiration of the period covered by such
insurance, Lessee's liability for premium increases shall be prorated on an
annual basis.
8.3 INSURANCE POLICIES. Insurance required hereunder shall be in
companies holding a "General Policyholders Rating" of B plus or better as set
forth in the most current issue of "Best Insurance Guide". Lessee shall
deliver to Lessor copies of policies of liability insurance required under
Paragraph 8.1 or certificates evidencing the existence and amounts of such
insurance with loss payable clauses satisfactory to Lessor. No such policy
shall be cancellable or subject to reduction of coverage or other
modification except after ten (10) days' prior written notice to Lessor.
Lessee shall, within ten (10) days prior to the expiration of such policies,
furnish Lessor with renewals or "binders" thereof, or Lessor may order such
insurance and charge the cost thereof to Lessee, which amount shall be
payable by Lessee upon demand. Lessee shall not do or permit to be done
anything which shall invalidate the insurance policies referred to in
Paragraph 8.2.
8.4 WAIVER OF SUBROGATION. Lessee and Lessor each hereby waives any and
all rights of recovery against the other, or against the officers, employees,
agents and representatives of the other, for loss of or damage to such
waiving party or its property or the property of others under its control,
where such loss or damage is insured against under any insurance policy in
force at the time of such loss or damage. Lessee and Lessor shall, upon
obtaining the policies of insurance required hereunder, give notice to the
insurance carrier or carriers that the foregoing mutual waiver of subrogation
is contained in this Lease.
8.5 INDEMNITY. Lessee shall indemnify and hold harmless Lessor from and
against any and all claims arising from Lessee's use of the Premises, or from
the conduct of Lessee's business or from any activity, work or things done,
permitted or suffered by Lessee in or about the Premises or elsewhere and
shall further indemnify and hold harmless Lessor from and against any and all
claims arising from any breach or default in the performance of any
obligation on Lessee's part to be performed under the terms of this Lease, or
arising from any negligence of the Lessee, or any of Lessee's agents,
contractors, or employees, and from and against all costs, attorney's fees,
expenses and liabilities 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 Lessor by reason of any such claim, Lessee upon notice from
Lessor shall defend the same at Lessee's expense by counsel satisfactory to
Lessor. Lessee, as a material part of the consideration to Lessor, hereby
assumes all risk of damage to property or injury to persons, in, upon or
about the Premises arising from any cause and Lessee hereby waives all
claims in respect thereof against Lessor.
8.6 EXEMPTION OF LESSOR FROM LIABILITY. Lessee hereby agrees that Lessor
shall not be liable for injury to Lessee's business or any loss of income
therefrom or for damage to the goods, wares, merchandise or other property of
Lessee, Lessee's employees, invitees, customers, or any other person in or
about the Premises, nor shall Lessor be liable for injury to the person of
Lessee, Lessee's employees, agents or contractors, whether such damage or
injury is caused by or results from fire, steam, electricity, gas, water or
rain, or 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 a part, or from other sources or places,
and regardless of whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Lessee. Lessor 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.
9. DAMAGE OR DESTRUCTION.
9.1 PARTIAL DAMAGE-INSURED. Subject to the provisions of Paragraphs
9.3 and 9.4, if the Premises are damaged and such damage was caused by a
casualty covered under an insurance policy required to be maintained pursuant
to Paragraph 8.2, Lessor shall at Lessor's expense repair such damage as soon
as reasonably possible and this Lease shall continue in full force and effect
but Lessor shall not repair or replace Lessee's fixtures, equipment or tenant
improvements.
9.2 PARTIAL DAMAGE-UNINSURED. Subject to the provisions of Paragraph
9.3 and 9.4, if at any time during the term hereof the Premises are damaged,
except by a negligent or willful act of Lessee (in which event Lessee shall
make the repairs, at its expense) and such damage was caused by a casualty
not covered under an insurance policy required to be maintained by Lessor
pursuant to Paragraph 8.2, Lessor may at Lessor's option either (i) repair
such damage as soon as reasonably possible at Lessor's expense, in which this
Lease shall continue in full force and effect, or (ii) give written notice to
Lessee within thirty (30) days after the date of the occurrence of such
damage of Lessor's intention to cancel and terminate this Lease as of the
date of the occurrence of such damage. In the event Lessor elects to give
such notice of Lessor's intention to cancel and terminate this Lease, Lessee
shall have the right within ten (10) days after the receipt of such notice to
give written notice to Lessor of Lessee's intention to repair such damage at
Lessee's expense, without reimbursement from Lessor, in which event this
Lease shall continue in full force and effect, and Lessee shall proceed to
make such repairs as soon as reasonably possible. If Lessee does not give
such notice within such 10-day period this Lease shall be cancelled and
terminated as of the date of the occurrence of such damage.
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9.3 TOTAL DESTRUCTION. If at any time during the term hereof the
Premises are totally destroyed from any cause whether or not covered by the
insurance required to be maintained by Lessor pursuant to Paragraph 8.2
(including any total destruction required by any authorized public authority)
this Lease shall automatically terminate as of the date of such total
destruction.
9.4 DAMAGE NEAR END OF TERM. If the Premises are partially destroyed
or damaged during the last six months of the term of this Lease, Lessor may
at Lessor's option cancel and terminate this Lease as of the date of
occurrence of such damage by giving written notice to Lessee of Lessor's
election to do so within 30 days after the date of occurrence of such damage.
9.5 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(a) If the Premises are partially destroyed or damaged and Lessor or
Lessee repairs or restores them pursuant to the provisions of this Paragraph
9, the rent payable hereunder for the period during which such damage, repair
or restoration continues shall be abated in proportion to the degree to which
Lessee's use of the Premises is impaired. Except for abatement of rent, if
any, Lessee shall have no claim against Lessor for any damage suffered by
reason of any such damage, destruction, repair or restoration.
(b) If Lessor shall be obligated to repair or restore the Premises
under the provisions of this Paragraph 9 and shall not commence such repair
or restoration within 90 days after such obligations shall accrue, Lessee may
at Lessee's option cancel and terminate this Lease by giving Lessor written
notice of Lessee's election to do so at any time prior to the commencement of
such repair or restoration. In such event this Lease shall terminate as of
the date of such notice.
9.6 TERMINATION - ADVANCE PAYMENTS. Upon termination of this Lease
pursuant to this Paragraph 9, an equitable adjustment shall be made
concerning advance rent and any advance payments made by Lessee to Lessor.
Lessor shall, in addition, return to Lessee so much of Lessee's security
deposit as has not theretofore been applied by Lessor.
9.7 WAIVER. Lessee waives the provisions of California Civil Code
Sections 1932(2) and 1933(4) which relate to termination of leases when the
thing leased is destroyed and agrees that such event shall be governed by the
terms of this Lease.
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF TAX INCREASE. Lessor shall pay all real property taxes
applicable to the Premises; provided, however, that Lessee shall pay, in
addition to rent, the amount, if any, by which real property taxes applicable
to the Premises increase over the fiscal tax year 1995 - 1996. Such payment
shall be made by Lessee within thirty (30) days after receipt of Lessor's
written statement setting forth the amount of such increase and the
computation thereof. If the term of this Lease shall not expire concurrently
with the expiration of the tax fiscal year, Lessee's liability for increased
taxes for the last partial lease year shall be prorated on an annual basis.*
10.2 DEFINITION OF "REAL PROPERTY" TAX. As used herein, the term "real
property tax" shall include any form of assessment, license fee, commercial
rental tax, levy, penalty, or tax (other than inheritance or estate taxes),
imposed by any authority having the direct or indirect power to tax,
including any city, county, state or federal government, or any school,
agricultural, lighting, drainage or other improvement district thereof, as
against any legal or equitable interest of Lessor in the Premises or in the
real property of which the Premises are a part, as against Lessor's right to
rent or other income therefrom, or as against Lessor's business of leasing
the Premises or any tax imposed in substitution, partially or totally, of
any tax previously included within the definition of real property tax, or
any additional tax the nature of which was previously included within the
definition of real property tax.
10.3 JOINT ASSESSMENT. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the real property
taxes for all of the land and improvements included within the tax parcel
assessed, such proportion to be determined by Lessor from the respective
valuations assigned in the assessor's work sheets or such other information
as may be reasonably available. Lessor's reasonable determination thereof,
in good faith, shall be conclusive.
10.4 PERSONAL PROPERTY TAXES.
(a) Lessee shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment and all other
personal property of Lessee contained in the Premises or elsewhere. When
possible, Lessee shall cause said trade fixtures, furnishings, equipment and
all other personal property to be assessed and billed separately from the
real property of Lessor.
(b) If any of Lessee's said personal property shall be assessed
with Lessor's real property, Lessee shall pay Lessor the taxes attributable
to Lessee within 10 days after receipt of a written statement setting forth
the taxes applicable to Lessee's property.
11. UTILITIES. Lessee shall pay for all water, gas, heat, light, power,
telephone and other utilities and services supplied to the Premises, together
with any taxes thereon. If any such services are not separately metered to
Lessee, Lessee shall pay a reasonable proportion to be determined by Lessor
of all charges jointly metered with other premises.
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED. Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Lessee's interest in this Lease or in the
Premises, without Lessor's prior written consent, which Lessor shall not
unreasonably withhold. Any attempted assignment, transfer, mortgage,
encumbrance or subletting without such consent shall be void, and shall
constitute a breach of this Lease.
12.2 LESSEE AFFILIATE. Notwithstanding the provisions of paragraph
12.1 hereof, Lessee may assign or sublet the Premises, or any portion
thereof, without Lessor's consent, to any corporation which controls, is
controlled by or is under common control with Lessee, or to any corporation
resulting from the merger or consolidation with Lessee, or to any person or
entity which acquires all the assets of Lessee as a going concern of the
business that is being conducted on the Premises, provided that said assignee
assumes, in full, the obligations of Lessee under this Lease. Any such
assignment shall not, in any way, affect or limit the liability of Lessee
under the terms of this Lease even if after such assignment or subletting the
terms of this Lease are materially changed or altered without the consent of
Lessee, the consent of whom shall not be necessary.
12.3 NO RELEASE OF LESSEE. Regardless of Lessor's consent, no
subletting or assignment shall release Lessee of Lessee's obligation or alter
the primary liability of Lessee to pay the rent and to perform all other
obligations to be performed by Lessee hereunder. The acceptance of rent by
Lessor from any other person shall not be deemed to be a waiver by Lessor of
any provision hereof. Consent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting. In the event of
default by any assignee of Lessee or any successor of Lessee, in the
performance of any of the terms hereof, lessor may proceed directly against
Lessee without the necessity of exhausting remedies against said assignee.
Lessor may consent to subsequent assignments or subletting of this Lease or
amendments or modifications to this Lease with assignees of Lessee, without
notifying Lessee, or any successor of Lessee, and without obtaining its or
their consent thereto and such action shall not relieve Lessee of liability
under this Lease.
12.4 ATTORNEY'S FEES. In the event Lessee shall assign or sublet the
Premises or request the consent of Lessor to any assignment or subletting or
if Lessee shall request the consent of Lessor for any act Lessee proposes to
do then Lessee shall pay Lessor's reasonable attorneys fees incurred in
connection therewith, such attorneys fees not to exceed $250.00 for each such
request.
13. DEFAULTS; REMEDIES.
13.1 DEFAULTS. The occurrence of any one or more of the following
events shall constitute a material default and breach of this Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent or any other
payment required to be made by Lessee hereunder, as and when due, where such
failure shall continue for a period of three days after written notice
thereof from Lessor to Lessee.
(c) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed
by Lessee, other than described in paragraph (b) above, where such failure
shall continue for a period of 30 days after written notice hereof from
Lessor to Lessee; provided, however, that if the nature of Lessee's default
is such that more than 30 days are reasonably required for its cure, then
Lessee shall not be deemed to be in default if Lessee commenced such cure
within said 30-day period and thereafter diligently prosecutes such cure
to completion.
(d) (i) The making by Lessee of any general arrangement for the
benefit of creditors; (ii) the filing by or against Lessee of a petition to
have Lessee 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 Lessee, the same is dismissed within 60 days); (iii)
the appointment of a trustee or receiver to take possession of substantially
all of Lessee's assets located at the Premises or of Lessee's interest in
this Lease, where possession is not restored to Lessee within 30 days; or
(iv) the attachment, execution or other judicial seizure of substantially all
of Lessee's assets located at the Premises or of Lessee's interest in this
Lease, where such seizure is not discharged within 30 days.
(e) The discovery by Lessor that any financial statement given to
Lessor by Lessee, any assignee of Lessee, any subtenant of Lessee, any
successor in interest of Lessee or any guarantor of Lessee's obligation
hereunder, and any of them, was materially false.
13.2 REMEDIES. In the event of any such material default or breach by
Lessee, Lessor may at any time thereafter, with or without notice or demand
and without limiting Lessor in the exercise of any right or remedy which
Lessor may have by reason of such default or breach:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Lessor. In such event
Lessor shall be entitled to recover from Lessee all damages incurred by
Lessor by reason of Lessee's default including, but not limited to, the cost
of recovering possession of the Premises; expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorney's
fees, and any real estate commission actually-paid; the worth at the time of
award by the court having jurisdiction thereof of 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 Lessee proves could
be reasonably avoided; that portion of the leasing commission paid by Lessor
pursuant to Paragraph 15 applicable to the unexpired term of this Lease.
(b) Maintain Lessee's right to possession in which case this Lease
shall continue in effect whether or not Lessee shall have abandoned the
Premises. In such event Lessor shall be entitled to enforce all of
Lessor's rights and remedies under this Lease, including the right to recover
the rent as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws of judicial decisions of the State of California.
13.3 DEFAULT BY LESSOR. Lessor shall not be in default unless Lessor
fails to perform obligations required of Lessor within a reasonable time, but
in no event later than thirty (30) days after written notice by Lessee to
Lessor and to the holder of any first mortgage or deed of trust covering the
Premises whose name and address shall have theretofore been furnished to
Lessee in writing, specifying wherein Lessor has failed to perform such
obligation; provided, however, that if the nature of Lessor's obligation is
such that more than thirty (30) days are required by performance then Lessor
shall not be in default if Lessor commences performance within such 30-day
period and thereafter diligently prosecutes the same to completion.
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by
Lessee to Lessor of rent and other sums due hereunder will cause Lessor 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
Lessor by the terms of any mortgage or trust deed covering the Premises.
Accordingly, If any installment of rent or any other sum due from Lessee
shall not be received by Lessor or Lessor's designee within ten (10) days
after such amount shall be due, Lessee shall pay to Lessor a late charge
equal to 6% of such overdue amount. The
* Tenant shall have no obligation for real property tax increase if property
is sold at any time during tenancy.
INITIALS: AB
MB
MB
FH
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parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Lessor will incur by reason of late payment by Lessee.
Acceptance of such late charge by Lessor shall in no event constitute a
waiver of Lessee's default with respect to such overdue amount, nor prevent
Lessor from exercising any of the other rights and remedies granted
hereunder.
14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain, or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority
takes title or possession, whichever first occurs. If more than 10% of the
floor area of the Improvements on the premises, or more than 25% of the land
area of the Premises which is not occupied by any improvements, is taken by
condemnation, Lessee may, at Lessee's option, to be exercised in writing only
within ten (10) days after Lessor shall have given Lessee written notice of
such taking (or in the absence of such notice, within ten (10) days after the
condemning authority shall have taken possession) terminate this Lease as of
the date the condemning authority takes such possession. If Lessee does not
terminate this Lease in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the Premises remaining,
except that the rent shall be reduced in the proportion that the floor area
taken bears to the total floor area of the building situated on the Premises.
Any award for the taking of all or any part of the Premises under the power
of eminent domain or any payment made under threat of the exercise of such
power shall be the property of Lessor, whether such award shall be made as
compensation for diminution in value of the leasehold or for the taking of
the fee, or as severance damages; provided, however, that Lessee shall be
entitled to any award for loss of or damage to Lessee's trade fixtures and
removable personal property. In the event that this Lease is not terminated
by reason of such condemnation, Lessor shall, to the extent of severance
damages received by Lessor in connection with such condemnation, repair any
damage to the Premises caused by such condemnation except to the extent that
Lessee has been reimbursed therefor by the condemning authority. Lessee
shall pay any amount in excess of such severance damages required to complete
such repair.
15. BROKER'S FEE. Upon execution of this Lease by both parties. Lessor
shall pay to BT Commercial Real Estate, a licensed real estate broker, a fee
as set forth in a separate agreement between Lessor and said broker, or in
the event there is no separate agreement between Lessor and said broker, the
sum of $19,256.88, for brokerage services rendered by said broker to Lessor
in this transaction. Lessor further agrees that if Lessee exercises any
option granted herein or any option substantially similar thereto, either to
extend the term of this Lease, to renew this Lease, to purchase said Premises
or any part thereof and/or any adjacent property which Lessor may own or in
which Lessor has an interest, or any other option granted herein, or if said
broker is the procuring cause of any other lease or sale entered into between
the parties pertaining to the Premises and/or any adjacent property in which
Lessor has an interest, then as to any of said transactions, Lessor shall pay
said broker a fee in accordance with the schedule of said broker in effect at
the time of execution of this lease. Lessor agrees to pay said fee not only
on behalf of Lessor but also on behalf of any person, corporation,
association, or other entity having an ownership interest in said real
property or any part thereof, when such fee is due hereunder. Any transferee
of Lessor's interest in this Lease, by accepting an assignment of such
interest, shall be deemed to have assumed Lessor's obligation under this
Paragraph 15. Said broker shall be a third party beneficiary of the
provisions of this Paragraph.
16. GENERAL PROVISIONS.
16.1 ESTOPPEL CERTIFICATE.
(a) Lessee shall at any time upon not less than ten (10) days' prior
written notice from Lessor execute, acknowledge and deliver to Lessor a
statement in writing (i) 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 date to which the rent and other charges are paid in advance, if any,
and (ii) acknowledging that there are not, to Lessee's knowledge, any uncured
defaults on the part of Lessor hereunder or specifying such defaults if any
are claimed. Any such statement may be conclusively relied upon by any
prospective purchaser or encumbrancer of the Premises.
(b) Lessee's failure to deliver such statement within such time shall
be conclusive upon Lessee (i) that this Lease is in full force and effect,
without modification except as may be represented by Lessor, (ii) that there
are no uncured defaults in Lessor's performance, and (iii) that not more than
one month's rent has been paid in advance or such failure may be considered
by Lessor as a default by Lessee under this Lease.
(c) If Lessor desires to finance or refinance the Premises, or any part
thereof, Lessee hereby agrees to deliver to any lender designated by Lessor
such financial statements of Lessee as may be reasonably required by such
lender. Such statements shall include the past three years' financial
statements of Lessee. All such financial statements shall be received by
Lessor in confidence and shall be used only for the purposes herein set forth.
16.2 LESSOR'S LIABILITY. The term "Lessor" as used herein shall mean
only the owner or owners at the time in question of the fee title or a
lessee's interest in a ground lease of the Premises, and except as expressly
provided in Paragraph 15, in the event of any transfer of such title or
interest, Lessor herein named (and in case of any subsequent transfers the
then grantor) shall be relieved from and after the date of such transfer of
all liability as respects Lessor's obligations thereafter to be performed,
provided that any funds in the hands of Lessor or the then grantor at the
time of such transfer, in which Lessee has an interest, shall be delivered to
the grantee. The obligations contained in this Lease to be performed by
Lessor shall, subject as aforesaid, be binding on Lessor's successors and
assigns, only during their respective periods of ownership.
16.3 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 hereof.
16.4 INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein
provided, any amount due to Lessor not paid when due shall bear interest at
10% per annum from the date due. Payment of such interest shall not excuse
or cure any default by Lessee under this Lease, provided, however, that
interest shall not be payable on late charges incurred by Lessee nor on any
amounts upon which late charges are paid by Lessee.
16.5 TIME OF ESSENCE. Time is of the essence.
16.6 CAPTIONS. Article and paragraph captions are not a part hereof.
16.7 INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains
all agreements of the parties with respect to any matter mentioned herein.
No prior agreement or understanding pertaining to any such matter shall be
effective. This Lease may be modified in writing only, signed by the parties
in interest at the time of the modification. Except as otherwise stated in
this Lease, Lessee hereby acknowledges that neither the real estate broker
listed in Paragraph 15 hereof nor any cooperating broker on this transaction
nor the Lessor or any employees or agents of any of said persons has made any
oral or written warranties or representations to Lessee relative to the
condition or use by Lessee of said Premises and Lessee acknowledges that
Lessee assumes all responsibility regarding the Occupational Safety Health
Act, the legal use and adaptability of the Premises and the compliance
thereof with all applicable laws and regulations in effect during the term of
this Lease except as otherwise specifically stated in this Lease.
16.8 NOTICES. Any notice required or permitted to be given hereunder
shall be in writing and may be given by personal delivery or by certified
mail, and if given personally or by mail, shall be deemed sufficiently given
if addressed to Lessee or to Lessor at the address noted below the signature
of the respective parties, as the case may be. Either party may by notice to
the other specify a different address for notice purposes except that upon
Lessee's taking possession of the Premises, the Premises shall constitute
Lessee's address for notice purposes. A copy of all notices required or
permitted to be given to Lessor hereunder shall be concurrently transmitted
to such party or parties at such addresses as Lessor may from time to time
hereafter designate by notice to Lessee.
16.9 WAIVERS. No waiver by Lessor of any provision hereof shall be
deemed a waiver of any other provision hereof or of any subsequent breach by
Lessee of the same or any other provision. Lessor's consent to or approval
of any act shall not be deemed to render unnecessary the obtaining of
Lessor's consent to or approval of any subsequent act by Lessee. The
acceptance of rent hereunder by Lessor shall not be a waiver of any preceding
breach by Lessee of any provision hereof, other than the failure of Lessee to
pay the particular rent so accepted, regardless of Lessor's knowledge of such
preceding breach at the time of acceptance of such rent.
16.10 RECORDING. Lessee shall not record this Lease without Lessor's
prior written consent, and such recordation shall, at the option of Lessor,
constitute a non-curable default of Lessee hereunder. Either party shall,
upon request of the other, execute, acknowledge and deliver to the other a
"short form" memorandum of this Lease for recording purposes.
16.11 HOLDING OVER. If Lessee remains in possession of the Premises or
any part thereof after the expiration of the term hereof without the express
written consent of Lessor, such occupancy shall be a tenancy from month to
month at a rental in the amount of the last monthly rental plus all other
charges payable hereunder, and upon all the terms hereof applicable to a
month-to-month tenancy.
16.12 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.
16.13 COVENANTS AND CONDITIONS. Each provision of this Lease performable
by Lessee shall be deemed both a covenant and a condition,
16.14 BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof
restricting assignment or subletting by Lessee and subject to the provisions
of Paragraph 16.2, this Lease shall bind the parties, their personal
representatives, successors and assigns. This Lease shall be
16.18 SIGNS AND AUCTIONS. Lessee shall not place any sign upon the
Premises or conduct any auction thereon without Lessor's prior written
consent except that Lessee shall have the right, without the prior permission
of Lessor to place ordinary and usual for rent or sublet signs thereon.
16.19 MERGER. The voluntary or other surrender of this Lease by Lessee,
or a mutual cancellation thereof, or a termination by Lessor, shall not work
a merger, and shall, at the option of Lessor, terminate all or any existing
subtenancies or may, at the option of Lessor, operate as an assignment to
Lessor of any or all of such subtenancies.
16.20 CORPORATE AUTHORITY. If Lessee 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 a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the Bylaws of said
corporation, and that this Lease is binding upon said corporation in
accordance with its terms. If Lessee is a corporation Lessee shall, within
thirty (30) days after execution of this Lease, deliver to Lessor a certifled
copy of a resolution of the Board of Directors of said corporation
authorizing or ratifying the execution of this Lease.
16.21 CONSENTS. Wherever in this Lease the consent of one party is
required to an act of the other party such consent shall not be unreasonably
withheld.
16.22 GUARANTOR. In the event that there is a guarantor of this Lease,
said guarantor shall have the same obligations as Lessee under Paragraphs 16.1
and 16.20 of this Lease.
16.23 QUIET POSSESSION. Upon Lessee paying the fixed rent reserved
hereunder and observing and performing all of the covenants, conditions and
provisions on Lessee's part to be observed and performed hereunder, Lessee
shall have quiet possession of the Premises for the entire term hereof
subject to all of the provisions of this Lease.
16.24 OPTIONS. In the event that the Lessee, under the terms of this
Lease, has any option to extend the term of this Lease, or any option to
purchase the premises or any right of first refusal to purchase the premises
or other property of Lessor, then each of such options and rights are
personal to Lessee and may not be exercised or be assigned, voluntarily or
involuntarily, by or to any one other than Lessee except that it may be
exercised by or assigned to any of the entities described in paragraph 12.2
hereof for whom Lessee does not need the consent of Lessor to assign this
Lease. In the event that Lessee hereunder has any multiple options to extend
this Lease a later option to extend the lease cannot be exercised unless the
prior option has been so exercised. No option may be exercised at a time
when the Lessee is in default under its obligations under this Lease.
16.25 MULTIPLE TENANT BUILDING. In the event that the Premises are
part of a larger building or group of buildings then Lessee agrees that it
will abide by, keep and observe all reasonable rules and regulations which
Lessor may make from time to time for the management, safety, care, and
cleanliness of the building and grounds, the parking of vehicles and the
preservation of good order therein as well as for the convenience of other
occupants and tenants of the building. Further, Lessee will promptly pay its
prorata share, as reasonably determined by Lessor, of any maintenance or
repair of such portion of the Premises or such portion of the property of
which the Premises are a part, which are common areas or used by Lessee and
other occupants thereof. The violations of any such rules and regulations, or
the failure to pay such prorata share of costs, shall be deemed a material
breach of this Lease by Lessee.
16.26 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.
See Exhibit "C" attached and by reference made a part hereof.
See Exhibit "D" Rent Schedule attached and by reference made a part hereof.
The following disclosures requiring signature are attached and by reference
made a part hereof.
1. Agency Disclosure - Lease.
2. Americans With Disabilities Act Notice to Owners and Tenant.
3. Special Studies Zone and Flood Hazard Disclosure.
4. Notice to Owners, Buyers, Tenants regarding Hazardous Waste.
The parties hereto have executed this Lease at the place on the dates specified
immediately adjacent to their respective signatures.
If this Lease has been filled in it has been prepared for submission to your
attorney for his approval. No representation or recommendation is made by the
real estate broker or its agents or employees as to the legal sufficiency, legal
effect, or tax consequences of this Lease or the transaction relating thereto.
Executed at Morgan Hill, California /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------- -----------------------------------
By ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
on December 12, 1995 By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------ ---------------------------------
Address ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
"LESSOR" (Corporate seal)
Executed at Burlingame, California S&D Foods, a California corporation
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on December 12, 1995 By /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------ ---------------------------------
Address 1333 ▇▇▇▇▇▇▇ Road ▇▇▇▇▇ ▇▇▇▇, Chief Operating Officer
-------------------------------
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By
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"LESSEE" (Corporate seal)
EXHIBIT "C"
16.26 ADDITIONAL PROVISIONS.
16.26.1 LANDLORD TENANT IMPROVEMENT WORK.
Landlord agrees to perform the following Tenant Improvement work at
Landlord's cost and expense.
A. Install 2 restrooms in the warehouse. The women's restroom
shall contain 3 water closets and stalls. The mens restroom
shall contain 2 water closets and 1 urinal.
B. Install concrete pad for boiler on west side of warehouse.
Tenant and Landlord to determine location and specifications
for pad.
C. Paint exterior of office/residence and replace floor of front
porch.
D. Install industrial halogen lighting in warehouse,
E. Install outdoor night lighting on building.
F. If required, Landlord agrees to install sufficient baserock
and paved truck parking area with temporary dock and shed
roof cover to allow fork lift operations during rain season.
16.26.2 Tenant shall make all improvements required pertinent to the
operation of its business at Tenant cost and expense.
A. Tenant shall install 3 floor drains as required in cold
room.
B. Tenant shall install holding tank and drain water line
to ▇▇▇▇▇ field.
C. Tenant shall install 3 exhaust vents as required in
cold room roof.
D. Tenant shall perform all interior renovation to office-
residence in lieu of paying rent for structure.
16.26.3 Landlord shall be responsible for all costs and expenses
related to the maintenance and operation of driveways, ▇▇▇▇▇,
pumps and motors, transformers, fencing, and security
lighting in addition to those items delineated in paragraph
7.1 of this lease.
16.26.4 All costs and expenses not the specific responsibility of
Landlord shall be the responsibility of Tenant.
16.26.5 Tenant anticipates the need for up to an additional 50,000
s.f. of warehouse space within 18 months of occupancy.
Landlord agrees to reserve adequate property west of the
Premises to accommodate development of the now facility, Cost
of development and rental rates for the now facility shall be
determined by the Tenant electing to exercise one of the
below listed alternative plans.
(a) If Tenant elects to absorb the cost of construction no
rent shall be paid to the Landlord for the balance of
the term remaining for the initial 84 month term. Upon
completion of the balance of the initial 84 month term,
the rent on the new building would begin at twenty-
seven cents ($.27) per square foot per month gross and
continue under the terms stated in Paragraphs 3 and 4
of this Lease.
(b) If Landlord constructs the building Tenant shall pay
Landlord an initial base rate of twentyseven cents
($.27) per square foot per month gross as the base rate
plus any increased rent currently in effect under the
terms of Paragraph 3 and 4 of this Lease.
(c) In either alternative, Tenant shall be responsible for
the cost of brokerage commission due to BT Commercial
Real Estate, for the first 60 months Tenant occupies
new building, under the Schedule of Commissions in
effect at the execution of the original Lease as
provided for in Paragraph 15. Landlord and Tenant
acknowledge BT Commercial Real Estate as the procuring
broker in this expansion transaction.
16.26.6 Landlord and Tenant agree Tenant shall have the absolute right
to bid all Tenant Improvements and new construction work to
competent, licensed third party unrelated contractors and consultants
if Tenant absorbs the cost of improvements or development.
16.26.7 Tenant shall provide plans and specifications to Landlord for
Tenant Improvements.
16.26.8 Landlord's Tenant Improvement work shall be limited to $30,000
($1.25 s.f.). Tenant shall pay any additional costs amortized
over a 36 month period based on a per month per square foot
surcharge formula beginning in June of 1996. A loan constant of
1.2% per month shall be applied to the amount financed over the
$1.25 per square foot Tenant Improvement allowance.
EXHIBIT "D"
RENT SCHEDULE ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ S&D FOODS
Term MD Annual S.F.
---- -- ------ ----
Months 01-24 $6,480.00 $77,760.00 $.27
Months 25-36 $6,674.40 $80,092.80 $.2781
Months 37-48 $6,874.63 $82,495.58 $.2864
Months 49-60 $7,080.86 $84,970.42 $.2950
Months 61-72 $7,293.28 $87,519-42 $.3039
Months 73-84 $7,512.07 $90,144.94 $.3130
A.D.A. Compliance:
Lessor has not received: 1) Any notices alleging violation of the Americans
with Disabilities Act of 1990 ("A.D.A.") or the California Code of
Regulations-Title 24 Accessibility Standards relating to any portion of the
Property or of the Premises; 2) Any claims made or threatened in writing
regarding noncompliance with the A.D.A. and the California Code of
Regulations-Title 24 Accessibility Standards and relating to any portion of
the Property or of the Premises; or 3) Any governmental or regulatory actions
or investigations instituted or threatened regarding noncompliance with the
A.D.A. and the California Code of Regulations-Title 24 Accessibility
Standards relating to any portion of the Property or the Premises.
In the event that Lessor or Lessee receives a notice alleging violation of
the A.D.A. or the California Code of Regulations-Title 24 Accessibility
Standards, Lessor and Lessee shall notify the other party in writing of such
notice within seven (7) days after receipt.
The Property or Premises may not currently be in compliance with the A.D.A.,
and the California Code of Regulations-Title 24 Accessibility Standards.
Lessor shall be responsible for ensuring building compliance with the A.D.A.
and California Code of Regulations-Title 24 Accessibility Standards if notice
alleging violation of the A.D.A. and California Code of Regulations-Title 24
Accessibility Standards is received. Additionally, Lessor shall be responsible
for any compliance required as a result of Lessor's construction of tenant
improvements to the Premises or the Property. However, in the event that
Lessee constructs any improvements or requests permits from the City for
improvements to the Property or Premises which trigger the compliance with
A.D.A. and the California Code of Regulations-Title 24 Accessibility
Standards for the property or premises, such compliance, in part or full,
shall be at the Lessee's sole expense.
Date: 12/12/95 Lessor: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Date: 12/12/95 Lessor: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Date: 12/12/95 Lessor: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Date: 12/12/95 Lessor: ▇▇▇▇▇ ▇▇▇▇
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Date: Lessee:
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Date: Lessee:
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