OFFICE LEASE
Between
8730 SUNSET TOWERS,
as
Landlord
and
1ST MIRACLE GROUP, INC.
a Canadian corporation
as
Tenant
Dated: May 24,1999
GUARANTEE OF LEASE
WHEREAS, a certain lease (the "Lease") of even date herewith has
been, or will be, executed by and between 8730 Sunset Towers (as further
described in Section 30 (u) of the Lease) (therein and herein referred to as
"Landlord"), and 1st Miracle Group, Inc., a Canadian corporation, (therein and
herein referred to as "Tenant"), covering certain "Premises" located at 0000
Xxxxxx Xxxxxx, Xxxxx xx xxx Xxxx xx Xxx Xxxxxxx, Xxxxxx of Los Angeles, State of
California; and
WHEREAS, the Landlord under the Lease requires as a condition to its
execution of the Lease that the undersigned (hereinafter sometimes "Guarantor")
guarantee the full performance of the obligations of Tenant thereunder; and
WHEREAS, the undersigned is desirous that Landlord enter into the
Lease with Tenant,
NOW, THEREFORE, in consideration of the execution of the Lease by
Landlord, the undersigned hereby unconditionally and absolutely guarantees the
full and faithful performance and observance of each and all of the terms,
covenants and conditions of the Lease to be observed and performed by Tenant,
including without being limited to the payment of all rentals and other charges,
when due, to accrue thereunder of Minimum Rent and Additional Rent payable under
the Lease. This covenant and agreement on the part of the undersigned is herein
referred to as the "Guarantee." The undersigned further agrees as follows:
(1) This Guarantee shall continue in favor of the Landlord
notwithstanding any extension of the Lease or if the Tenant holds over beyond
the term of the Lease, modification, or alterations of the Lease entered into by
and between the parties thereto, or their successors or assigns, and
notwithstanding any assignment of the Lease, with or without the consent of
Landlord, and no extension, modification, alteration or assignment of the Lease
shall in any manner release or, discharge the undersigned and it does hereby
consent thereto.
(2) Neither Guarantor's obligation to make payment in accordance with
the terms of this Guaranty nor any remedy for the enforcement thereof shall be
impaired, modified, released or limited in any way by any impairment,
modification, release, or limitation of the liability of Tenant or its estate in
any bankruptcy, reorganization or insolvency of Tenant or any successor or
assignee thereof or by any disaffirmance or abandonment by a trustee of Tenant
resulting from the operation of any present or future provision of the
Bankruptcy Code of the United States or from the decision of any court
interpreting the same.
(3) Landlord may, without notice, assign this Guarantee in whole or
in part, and no assignment or transfer of the Lease shall operate to extinguish
or diminish the liability of the undersigned thereunder.
(4) The liability of the undersigned under this Guarantee shall be
primary; and in any right of action which shall accrue to Landlord under the
Lease, Landlord may, at its option, proceed against the Undersigned without
having commenced any action, or having obtained any judgment
i
against Tenant. The Guarantor does not require any notice of Tenant's
nonpayment, nonperformance, or nonobservance of the covenants, terms and
conditions of the Lease. Guarantor hereby expressly waives the right to receive
such notice. Insofar as the payment by Tenant of any sums of money to Landlord
is involved, the Guaranty is a guaranty of payment and not of collection, and
shall remain in full force and effect until payment in full to Landlord of all
sums payable under the Lease. Furthermore, Guarantor waives any right to require
that resort be had to any security or to any other credit in favor of Tenant.
(5) The undersigned shall pay Landlord's reasonable attorney's fees
and all costs and other expenses incurred in any collection or attempted
collection or in any negotiations relative to the obligations hereby guaranteed,
or in enforcing this Guarantee against the undersigned, individually and
jointly.
(6) The undersigned does hereby waive notice of any demand by the
Landlord, as well as of any notice of default in the payment of rent or any
other amount contained or reserved in the Lease.
(7) In respect to Guarantor's subrogation rights, against Landlord,
Guarantor does hereby knowingly and intelligently waive and relinquish any and
all rights Guarantor has against Landlord or arising out of or relating to this
Continuing Guaranty of subrogation, contribution or indemnity, express or
implied. It is specifically acknowledged by Guarantor that Guarantor shall have
no recourse against Landlord or by reason of Landlord's breach or default under
the Lease.
(8) The use of the singular herein shall include the plural. The
obligation of two or more parties shall be joint and several. The terms and
provisions of this Guarantee shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties herein named.
[Text continues on the following page.]
ii
(9) The Lease and Us Guaranty shall be governed by, interpreted under
the laws Of and enforced in the courts of California.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be
executed this___________ day of________,19___.
/s/ Xxxxxxx Xxxxxxx
Address: __________________
/s/Xxxx-Xxxxxx Xxx Xxxxx
Address: __________________
If Guarantor shall be a Corporation, the authorized officers must
sign on behalf of the corporation and indicate the capacity in which they are
signing. This guarantee must be executed by the president or vice president and
the secretary or assistant secretary unless the bylaws or a resolution of the
board of directors shall otherwise provide, in which event, the bylaws, or a
certified copy of the resolution, as the case maybe, must be attached hereto.
Also the appropriate corporate seal must be affixed.
iii
TABLE OF CONTENTS PAGE
1. FUNDAMENTAL LEASE PROVISIONS:.........................................1
2. TERM..................................................................1
3 BASIC RENT............................................................2
4. ADDITIONAL RENT.......................................................2
(a) Increase in Direct Cost...........................2
(b) Definitions.......................................2
(c) Payment of Direct Cost............................3
(1) Exercise of Right by Tenant:..........4
(2) Procedures for-Review.................4
(3) Finding of Error......................5
(4) Effect of Tenant's Default............5
(d) CONSUMER PRICE INDEX..............................5
5. SECURITY DEPOSIT......................................................5
6. HOLDING OVER..........................................................6
7. PERSONAL PROPERTY TAXES...............................................6
8. USE...................................................................6
9. CONDITION OF PREMISES.................................................6
10. REPAIRS AND ALTERATIONS...............................................7
11. LIENS.................................................................7
12. BUILDING SERVICES.....................................................8
13. RIGHTS OF LANDLORD....................................................9
14. INDEMNITY EXEMPTION OF LANDLORD FROM LIABILITY .....................9
15. INSURANCE............................................................10
15.1 Tenant's Insurance.........................................10
(a) Liability Insurance..............................I0
(b) Tenant's Property Insurance......................10
(c) Workers' Compensation Insurance..................11
iv
(d) Business Interruption/Extra Expense Insurance....11
(e) Other Coverage...................................11
(f) Insurance Criteria...............................11
(g) Evidence of Coverage.............................11
15.2 Landlord's Insurance.......................................11
15.3 Allocation of Insured Risks/Waiver of Subrogation..........12
16. ASSIGNMENT AND SUBLETTING............................................12
17. DAMAGE DESTRUCTION...................................................13
(a) Damage -Insured..................................13
(b) Damage - Uninsured...............................13
(c) Landlord's Obligations...........................13
(d) Waiver by Tenant.................................14
18. SUBORDINATION........................................................14
19 EMINENT DOMAIN.......................................................14
20. DEFAULTS, REMEDIES...................................................14
(a) Defaults.........................................14
(b) Remedies.........................................15
(c) Late Charges.....................................16
(d) Persistent Delinquencies.........................16
21 TRANSFER OF LANDLORD'S INTEREST......................................16
22. BROKER...............................................................16
23. PARKING..............................................................16
24. WAIVER...............................................................16
25. ESTOPPEL CERTIFICATFE................................................17
26. FORCE MAJEURE........................................................17
27. HAZARDOUS WASTE......................................................17
28. SURRENDER OF PREMISES; REMOVAL -OF PROPERTY..........................18
29. RULES AND REGULATIONS................................................19
30. GENERAL PROVISIONS...................................................21
(a) Severability; Entire Agreement..................21
v
(b) Attorney's Fees...............................................21
(c) Time of Essence...............................................22
(d) Headings......................................................22
(e) No Option.....................................................22
(f) Use of Building Name, Improvement;............................22
(g) Quiet Possession..............................................22
(h) Substitute Premises...........................................22
(i) Successors and Assigns........................................22
(j) Notices.......................................................22
(k) Changes in Building, Facilities. Name . ......................23
(1) Authority.....................................................23
(m) Demolition....................................................23
(n) Interest .....................................................23
(o) Waiver of Relief Against Forfeiture ..........................23
(p) Landlord Default .............................................23
(q) Presumptions ................................................24
(s) Exhibits......................................................24
(t) Guaranty .....................................................24
(u) Landlord/Trustee..............................................24
vi
Defined Terms
Adjustment Month ............................................5
Assignment .................................................14
Base Month ...................................................5
Basic Rent ...................................................2
Building .... ...............................................1
Commencement Date ............................................2
CPI .........................................................12
Defined Terms ..............................................2,i
Landlord ....................................................1,i
Landlord's Statement ..........................................5
Premises ......................................................1
Rent ..........................................................2
Taking .......................................................i
Tax Costs ....................................................i
Tenant .....................................................1,i
vii
OFFICE LEASE
This Lease, dated, for reference purpose only May 24, 1999, is made
between 8730 Sunset Towers, as further described in Section 30(u) below,
(hereinafter "Landlord") and 1st Miracle Group, Inc., a Canadian corporation
(hereinafter "Tenant"). Landlord hereby leases to Tenant, and Tenant hereby
rents from Landlord, the premises described in Paragraph I (`Premises") upon the
following terms and conditions:
1. FUNDAMENTAL LEASE PROVISIONS-
a. Premises: Suite: 600. Floor: 6
0000 Xxxxxx Xxxxxxxxx, Xxx Xxxxxxx, XX. 00000
(hereinafter "Building")
Use: General office use or any lawful use consistent
with the character of a first-class office building
and further in compliance with the terms of Section 8.
b. Term: Five (5) years.
Commencement Date: The earlier of (a) the date
Tenant occupies all or a portion of the Premises
(other than in connection with the construction
of the same), and (b) the first Monday after date
that the Premises are Ready for Occupancy (as
defined in the Work Letter attached as Exhibit
"B"), which Ready for Occupancy date is
anticipated to be July 31, 1999.
c. Rent:
Basic Rent: Fifteen Thousand Eight Hundred
Fifty-Eight and 45/100's Dollars ($15,858.45) per
month. Basic Rent shall be increased for
adjustments in the Consumer Price Index pursuant
to Paragraph 4(d).
Additional Rent: Tenant shall pay Tenant's
Proportionate Share of all Operating Costs and
Taxes that exceed Landlord's Base Costs for the
1999 calendar year.
Tenant's Proportionate Share: is 8.6 %.
Prepaid Rent: Fifteen Thousand Eight Hundred Fifty-Eight
and 45/100's Dollars ($15,858.45) as Basic Rent for the First
Month.
Security Deposit :Ninety Thousand Dollars ($90,000)
d. Address for Notices: To Landlord: 8730 Sunset Towers
0000 Xxxxxx Xxxx.,
Xxxxxx xx Xxxxxxxx
Xxx Xxxxxxx, XX, 00000
e. Address for Notices: To Tenant: To the Premises.
f. Tenant's Parking: Twenty one (21) spaces at the
prevailing monthly parking rates, As of the
Commencement Date, parking rates are $95 per
month for each unreserved space and $110
per month for each reserved space, which
rates are subject to increase to the
prevailing market rates.
g. Broker: None.
/s/ (Tenants Name)
Initial
2. TERM.
The term of this Lease shall commence on the "Commencement Date" set
forth in Paragraph I hereof or such earlier date as Tenant first takes
possession of the Premises. If Landlord is unable to deliver possession of the
Premises to Tenant on or before the Commencement Date, Landlord shall not be
subject to any liability of this Lease nor the obligations of Tenant
hereunder, but the term hereof shall commence on the earlier of (i) five (5)
days following the day the Landlord gives Tenant written notice that the
Premises are ready for occupancy or (ii) on the day that Tenant first occupies
the Premises, and the expiration of the term shall not be extended by any
delay in delivering possession to Tenant, If permission is given to Tenant to
occupy the Premises prior to the Commencement Date, such occupancy shall be
subject to 0 of the provisions of this Lease, including the payment of rent.
3. BASIC RENT.
Tenant shall pay the "Basic Rent" set forth in Paragraph I hereof
for the Premises, on the first day of each month in advance, except that if
the Commencement Date occurs on a day other than the first day of the month,
then the Basic Rent for the fraction of the month starting with the
Commencement Date shall be paid on said Commencement Date and prorated on the
basis of the actual number of days in said month. If the term hereof ends on a
day other than the last day of a month, then the Basic Rent for the month
during which said expiration occurs shall be prorated on the basis of a thirty
(30) day month, In addition to said Basic Rent, Tenant agrees to Pay
"Additional Rent' as and when herein after provided in this Lease, Basic Rent
and Additional Rent are hereinafter sometimes referred to collectively as the
"rent." The rent shall be payable to Landlord, without deduction or offset, in
lawful money of the United States of America at the office maintained by
Landlord in the Building, or to such other person or at such other place as
Landlord may from time to time designate in writing.
Tenant shall pay prepaid Basic Rent concurrently with the execution
of this Lease, as set forth in Paragraph 1 hereof
4. ADDITIONAL RENT.
(a) Increase in Direct Costs. Direct Costs (as described below) for
the 1999 calendar year shall constitute the "Base Costs." As set forth in this
Paragraph, it is understood that the Basic Rent specified in Paragraph 3 of this
Lease does not contemplate that the Landlord shall pay the Annual Direct Costs
which exceeds the Base Costs. Tenant shall pay, as Additional Rent, Tenant's
Proportionate Share of any increasing Direct Costs which exceeds the Base Costs.
Landlord shall be entitled to exercise the same rights and remedies upon default
in the Tenant's payment of Additional Rent as it has upon default in the
Tenant's payment of Basic Rent.
(b) Definitions- The term "Direct Costs" shall mean the sum of the
following:
(i) "Tax Costs", which shall mean any and all real estate taxes
and other similar charges on real property or improvements, assessments, water
and sewer charges, and all other charges assessed or levied upon the Building
and appurtenances thereto and the parking or other facilities thereof, or the
real property (the "Property") thereunder (collectively the "Real Property) or
attributable thereto or on the rents, issues, profits or income received or
derived therefrom which are assessed or levied by the United States, the State
of California or any local government authority agency or any political
subdivision thereof, and shall include Landlord's reasonable legal fees, costs
and disbursements incurred in connection with proceedings for reduction of Tax
Costs, but shall not include any net income taxes; provided, however, if after
the date of this Lease the methods of taxation now prevailing shall be altered
so that in lieu of or as a supplement to any Tax Costs, there shall be levied
(a) a tax, assessment, levy, imposition or charge wholly or partially as a net
income, capital or franchise levy or otherwise on the rents issues, profits or
income derived therefrom, or (b) a tax, assessment, levy, imposition or charge
measured by or based in
/s/ (Tenants Name)
whole or in pan upon the Real Property and imposed upon Landlord, or (c) a
license fee measured by the rent payable under this Lease, then all such taxes,
assessments or levies or the part thereof so measured or based, shall be deemed
to be included in the term "Tax Costs."
(ii) "Operating Costs," which shall include but not be limited to
all costs and expenses incurred by Landlord in connection with the maintenance,
operation, replacement, ownership and repair of the Real Property, the
equipment, adjacent walks, landscaped and common areas, and the parking
structure, including, but not limited to, salaries, wages, medical, surgical and
general welfare benefits and pension payments, payroll taxes, fringe benefits,
employment taxes, workers' compensation, uniforms and dry-cleaning thereof for
all persons who perform duties connected with the operation, maintenance and
repair of the Building, its equipment and the adjacent, walks, and landscaped
areas, including janitorial, gardening, security, parking, operating
engineering, elevators, painting, plumbing, electrical, carpentry, heating,
ventilation, air conditioning, window washing, hired services, (but excluding
persons performing services not available to or performed for the benefit of
substantially all building Tenants), a reasonable allowance for depreciation of
the cost of acquiring, or the rental expense of, personal property used in the
maintenance, operation and repair of the Building, accountants' fees incurred in
the preparation of rent adjustment statements, legal fees, real estate tax
consulting fees, personal property taxes on property used in the maintenance and
operation of the Building, the current year's portion of capital improvement
cost amortized over the estimated useful life of the improvement, and capital
expenditures required by government regulations, laws, or ordinances; the cost
of all charges for electricity, gas, water, and other utilities furnished to the
Building, including any taxes thereon; the cost of all charges for fire and
extended coverage, liability and all other insurance for the Building carried by
Landlord; any insurance deductibles paid by Landlord respecting loss or damage
to the Building, its equipment or areas and items appurtenant thereto; the cost
of all building and cleaning supplies and materials; the cost of all charges for
cleaning, maintenance and service contracts and other services with independent
contractors (including property management fees); and license, permit and
inspection fees relating to the Building. In the event, during any calendar
year, the Building is less than ninety percent (90%) occupied at all times, the
Operating Costs shall be adjusted to reflect the Operating Costs of the Building
as though ninety percent (90%) of the Building was occupied at all times and the
increase or decrease hi rent shall be based upon such Operating Costs as so
adjusted. If Landlord is not furnishing any particular work or service (the cost
of which, if performed by Landlord, would be included in Operating Costs) to a
tenant who has undertaken to perform such work or service in lieu of the
performance thereof by Landlord, Operating Costs shall be deemed to be increased
by amount equal to the additional Operating Costs which would reasonably have
been incurred during such period by Landlord if it had at its own expense
furnished such work or service to such tenant.
(c) Payment of Direct Cost
(i) Upon the commencement of this Lease, Landlord may elect to
deliver to Tenant an estimate of the Direct Costs for the calendar year in which
the term of this Lease commences. By the end of each calendar year thereafter,
Landlord may elect to deliver to Tenant an estimate of the Direct Costs for the
following calendar year. In the event such estimates are delivered, Tenant shall
pay to Landlord on the first day of each month during the term of this Lease an
amount equal to Tenant's Proportionate Share, as set forth in Paragraph 1 (c),
of the average monthly increase in Direct Costs over Base Costs for such year as
estimated by Landlord. Following the end of each calendar year, Landlord shall
deliver to Tenant a statement ('Landlord's Statement') of the actual Direct
Costs for such calendar year and the amount due for Tenant's Proportionate Share
of the increase over the Base Costs. If the actual amount of Tenant's
Proportionate Share of the Direct Costs over Base Costs for such year exceeds
the amount paid by Tenant to Landlord as an estimate therefore, Tenant shall pay
the difference to Landlord within fifteen (15) days of delivery to Tenant of the
statement of the Direct Costs for such year. If the estimated amounts paid by
Tenant to Landlord for the increase in Direct Costs for such year exceeds the
actual amount due over Base Costs for such year, such excess shall be credited
against the amounts due from Tenant thereafter pursuant to this Paragraph
4(c)(i) or, if this Lease has terminated, such excess
/s/ Tenant's Name
3
shall be credited against any amounts which Tenant owes Landlord pursuant to
this Lease and, to the extent all amounts which Tenant owes Landlord pursuant to
this Lease have been paid, Landlord shall promptly pay such excess to Tenant. In
the event Landlord does not elect to deliver an estimate of Direct Costs to
Tenant as provided above, then upon Landlord delivering to Tenant a statement of
the actual Direct Costs for such calendar year and the amount due for Tenant's
Proportionate Share over Base Costs, Tenant shall pay such sum which is shown
due on said statement with the next payment of Basic Rent due or, in the event
Tenant elects such, Tenant may pay the sum due on such statement over the next
following twelve (12) months together with interest thereon at ten percent (1O%)
per annum, principal and interest amortized equally over such twelve (12)
months. Any delay by Landlord in delivering any estimate or statement pursuant
to this Paragraph shall not act as a waiver or relieve Tenant of its obligations
as set forth herein.
(1) Exercise of Right by Tenant:
(a) Provided that Tenant is not in default under this Lease and
provided further that Tenant strictly complies with the provisions of this
paragraph, Tenant shall have the right to reasonably review supporting data for
any portion of the Landlord's Statement that Tenant claims is incorrect provided
that Tenant gives Landlord reasonable times for such review.
(b) In order for Tenant to exercise its right under this paragraph,
Tenant shall, within sixty (60) days after any such Landlord's Statement is
sent, deliver a written notice to Landlord specifying the portions of the
Landlord's Statement that are claimed to be incorrect, and Tenant shall
simultaneously pay to Landlord all amounts due from Tenant to Landlord as
specified in the Landlord's Statement. If Tenant does not deliver such notice in
the time period set forth above, Landlord's Statement shall be deemed fully
accepted by Tenant and shall not be subject to any challenge by Tenant.
(c) Except as expressly set forth in subparagraph (3) (b) below, in
no event shall Tenant be entitled to withhold, deduct, or offset any monetary
obligation of Tenant to Landlord under the Lease (including, without limitation,
Tenant's obligation to make all rental payments and all payments for its share
of estimated and actual Additional Rent) pending the completion of and
regardless of the results of any review of records under this paragraph.
(d) The right of Tenant under this paragraph may only be exercised
once for any Landlord's Statement, and if Tenant fails to meet any of the above
conditions as a, prerequisite to the exercise of such right, the right of Tenant
under this paragraph for a particular Landlord's Statement shall be deemed
waived.
(2) Procedures for Review
(a) Tenant acknowledges that Landlord maintains its records for us
property at its offices in 8730 Sunset Towers, Office of the Building, 0000
Xxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, and Tenant therefore agrees that any
review of records under this paragraph shall occur at such location.
(b) Any review to be conducted under this paragraph shall be at the
sole expense of Tenant and shall be conducted by an independent firm of
certified public accountants of national standing.
(c) Tenant acknowledges and agrees that any records reviewed under
this paragraph constitute confidential information of Landlord, which shall not
be disclosed to anyone other than the accountants performing the review and the
principals of Tenant who receive the results of the review.
(d) The disclosure of such information to any other person whether or
not caused by the conduct of Tenant, shall constitute a material breach of this
Lease.
/s/ (Tenant's Name)
Initials
4
(3) Finding of Error
(a) Any error disclosed by there view of record under this paragraph
shall be promptly corrected, provided that Landlord shall have the right to
cause another review of the records to be made by an independent firm or
certified public accountants of national standing. In the event of a
disagreement between the two accounting firms, the review that discloses the
lease amount of deviation from the Landlord's Statement shall be deemed to be
correct.
(b) In the event that the results of the review of records taking
into account, if applicable, the results of any additional review caused by
Landlord pursuant to subparagraph (c)(1) above] reveal that Tenant has overpaid
obligations for a preceding period, the amount of such overpayment shall be
credited against Tenant's subsequent installment obligations to pay its share of
estimated or actual Additional Rent.
(c) In the event that such results show that Tenant has underpaid its
obligations for a preceding period, the amount of such underpayment shall be
paid by Tenant to Landlord with the next succeeding installment obligation of
estimated or actual Additional Rent.
(4) Effect of Tenant's Default. In the event that Tenant becomes in
default of its obligations under this Lease at any time during the pendency of a
review of records under this paragraph, said right to review shall immediately
cease and the matters originally set forth in the Landlord's Statement shall be
deemed to be correct.
(d) CONSUMER PRICE INDEX ADJUSTMENT. The monthly basic rent shall be
adjusted annually as of January 1 ("Annual Adjustment Date"), upward, but not
downward, as follows: The adjustment shall be calculated by referring (a) to the
index figure for the month of November of the year immediately preceding the
year in which this Lease is executed ("Base Month") and (b) the index figure for
the month of November preceding the annual adjustment date ("Adjustment Month")
as shown in the Consumer Price Index, All Urban Consumers, for the Los
Angeles-Long Beach-Anaheim area, as published by the Bureau of Labor Statistics
of the United States Department of Labor ("CPI") base on the period 1982-84=100.
If the index figure for the adjustment month is higher than the index figure for
the base month said monthly Basic Rent shall be increased effective as of
January 1 following the adjustment month by the same percentage as the
percentage increase of the CPI. If the 1982 base of the CPI is changed, the 1982
base shall be converted to the new base in accordance with the tables issued by
said Bureau, and the base as so converted shall be used. If the CPI is
discontinued or the 1982 base cannot be so converted, Landlord in its reasonable
discretion shall select an alternative index to adjust the monthly Basic Rent to
reflect the increase in the consumer price of goods and services.
Notwithstanding the foregoing, Tenant shall not be subject to a CPI increase
until after Tenant has been in possession of the Premises for six (6) months.
5. SECURITY DEPOSIT Concurrently with the execution of this Lease, Tenant
shall deposit with Landlord the amount specified in Paragraph 1 herein as
security for the fall and faithful performance of every provision of this Lease
to be performed by Tenant. If Tenant breaches any provision of this Lease,
including but not limited to the payment of rent, Landlord may use all or any
part of this security deposit for the payment of any rent or any other sums in
default. or to compensate Landlord for any other loss or damage which Landlord
may suffer by reason of Tenant's default. If any portion of said deposit is so
used or applied, Tenant shall within five (5) days after written demand
therefore, deposit cash with Landlord in an amount sufficient to restore the
security deposit to its original amount. If monthly Basic Rent is increased,
whether pursuant to Paragraph 4 or otherwise, the amount of the security deposit
required to be maintained by Tenant shall also be increased to an amount that
bears the same proportion to the increased Basic Rent as the initial security
deposit amount bore to the initial Basic Rent Landlord shall not be required to
keep this security deposit separate from its general funds and Tenant shall not
be entitled to interest on such deposit. At the expiration of the term of this
Lease or earlier termination here of the security deposit
/s/(Tenant's Name)
Initials
5
or any unapplied balance thereof shall be used and applied to cure any defaults
of Tenant under the Lease or compensate Landlord for loss or damage due to
Tenant failure to satisfy its obligations under this Lease. Tenant hereby waives
the provisions of Section 1950.7 of the California Civil Code, and all other
provisions of law, now or hereafter in force, which provide that Landlord may
claim from a security deposit only those sums reasonably necessary to remedy
defaults in the payment of rent, to repair damage caused by Tenant or to clean
die Premises. The remainder of the security deposit, if any, shall be returned
to Tenant, or at Landlord's option, to Tenant's assignee of this Lease.
6. HOLDING OVER. Should Tenant, with Landlord's prior written consent,
hold over after the termination of this Lease, Tenant shall become Tenant from
month to month, upon the terms herein provided as may be applicable to a month
to month tenancy and any such holding over shall not constitute an extension of
this Lease. During such holding over, Tenant shall pay monthly, in advance,
Basic Rent at one hundred fifty percent (I 50%) Or a lesser amount in the sole
discretion of the Landlord of the rate of Basic Rent in effect for the last
month of the term of this Lease, in addition to, and not in lieu of, all other
payments required to be made by Tenant hereunder including but not limited to
Tenant's Proportionate Share of the increase in Direct Costs over Base Costs.
Any other holding over shall create a tenancy at sufferance, and the reasonable
rental rate for which Tenant shall be liable in an unlawful detainer action
shall be deemed to be two hundred percent (200%) of the Basic Rent paid under
the Lease. Tenant agrees to indemnify, defend and hold Landlord harmless from
and against any and all claim, loss, damage, cost or expense arising out of
Tenant's delay in surrendering the Premises, including, without limitation, any
claims made by any succeeding tenant of the Premises.
7. PERSONAL PROPERTY TAXES. Tenant shall pay prior to delinquency all taxes
assessed against or levied upon fixtures, furnishings, equipment and all other
personal property of Tenant located in the Premises. If any or all of Tenant's
fixtures, furnishings, equipment and other personal property shall be assessed
and taxed with the property of Landlord, Tenant shall pay to Landlord its share
of such taxes within ten (10) days after delivery to Tenant by Landlord of a
statement in writing setting forth the amount of such taxes applicable to
Tenant's property.
8. USE. Tenant shall use and occupy the Premises only for the use
specified in Paragraph 1, and shall not use or occupy the Premises or permit the
same to be used or occupied for any other purpose without the prior written
consent of Landlord, and Tenant agrees that it will use the Premises in such a
manner so as not to interfere with or infringe the rights of other Tenants in
the Building. Tenant shall at its sole cost and expense promptly comply with all
laws, statutes, ordinances and governmental regulations or requirements now in
force or which may hereafter be in force relating to or affecting the condition,
use or occupancy of the Premises or the Building, including structural changes
not related to or affected by Tenant's improvements or acts. Tenant acknowledges
that it has made its own investigation and determination of the suitability of
the Premises for its business operations and the requirements that may be
imposed by Applicable Laws in order to conduct its business at the Premises and
in no event shall Landlord have any responsibility for taking any action to
obtain any conditional use permit, provide parking (except as expressly provided
herein) or take other action to make Tenant's occupancy of the Premises comply
with Applicable Laws. Tenant shall not do or permit to be done anything which
will invalidate or increase the cost of any fire and extended coverage insurance
policy covering the Building and/or the property located therein and Tenant
shall comply with all rules, orders, regulations and requirements of any
organization which sets out standards, requirements or recommendations commonly
refined to by major fire insurance underwriters including without limitation
thereto, the installation of fire extinguishers or an automatic dry chemical
extinguishing system. Tenant shall promptly upon demand reimburse Landlord for
any additional premium charges for such policy by reason of Tenant's failure to
comply with the provisions of this Paragraph.
9. CONDITION OF PREMISES. Tenant hereby agrees that Premises shall be taken
"as is," 'with all faults, "'with out any representations or warranties," and
Tenant hereby agrees and warrants that it has inspected the condition of the
Premises and the suitability of same for Tenant's
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purposes, and Tenant does hereby waive and disclaim any objection to, cause of
action based upon, or claim that its obligations hereunder should be reduced or
limited because of the condition of the Premises or the Building or the suit
ability of same for Tenant's purposes. Tenant acknowledges that neither Landlord
nor any agent nor any employee of Landlord has made any representations or
warranty with respect to the Premises, the size thereof, or the Building or with
respect to the suitability of either for the conduct of Tenant's business. The
taking of possession of the Premises by Tenant shall conclusively establish that
the Premises and the Building were at such time in satisfactory condition.
Tenant hereby waives Section 1941 and 1942 of the Civil Code of California or
any successor provision of law.
10. REPAIRS AND ALTERATIONS. Tenant shall keep the Premises in good
condition and repair. All damage or injury to the Premises or the Building
caused by the act or negligence of Tenant, its employees, agents or visitors,
guests, invitees or licensees shall be properly repaired by Tenant, at its sole
cost and expense, to the satisfaction of Landlord. Landlord may make any repairs
which are riot promptly made by Tenant and charge Tenant for the cost thereof
which costs shall be paid by Tenant within five (5) days from invoice by
Landlord. Tenant shall be responsible for the design and function of all
non-standard improvements to the Premises, whether or not installed by Landlord
at Tenant's request. Tenant waives all right to make repairs at the expense of
Landlord, or to deduct the cost thereof from the rent. Tenant shall make no
alterations, changes, repairs, or additions in or to the Premises without
Landlord's prior written consent, and then only by contractors or mechanics
approved by Landlord and upon the approval by Landlord of fully detailed and
dimensioned plans and specifications pertaining to the work in question, to be
prepared and submitted by Tenant at its sole cost and expense. Tenant shall at
its sole cost and expense obtain all necessary approvals and permits pertaining
to any work approved by Landlord. If Landlord, in approving any work specifies a
commencement date therefore, Tenant shall not commence any work prior to such
date. Tenant hereby indemnities and agrees to hold Landlord free and harmless
from all liens and claims of lien, and all other liability, claims and demands
arising out of any work done or material supplied to the Premises by or at the
request of Tenant. If any permitted alterations, changes, repairs or additions
are made, they shall be made at Tenant's expense and shall become the property
of the Landlord, except that Landlord may, by written notice to Tenant given at
least thirty (30) days prior to the end of the term, require Tenant at Tenant's
expense to remove all partitions, counters, railings and the like installed by
Tenants, and to repair any damages to the Premises caused by such removal.
11 LIENS. Tenant shall keep the Premises and the Real Property free from
any mechanics' liens, vendors liens or any other liens arising out of any work
performed, materials furnished or obligations incurred by Tenant, and agrees to
defend, indemnify and hold harmless Landlord from and against any such lien Or
claim or action thereon, together with costs of suit and reasonable attorneys'
fees incurred by Landlord in connection with any such claim or action. Before
commencing any work of alteration, addition, changes, repairs, or improvement to
the Premises, Tenant shall give Landlord at least ten (10) business days'
written notice of the proposed commencement of such work (to afford Landlord an
opportunity to post appropriate notices of non-responsibility) and shall secure,
at Tenant's own cost and expense, a completion and payment bond in an amount
equal to one hundred fifty percent (150%) of the cost of the work to be
performed, in a form and with a bonding company satisfactory to Landlord, for
said work which shall nine Landlord and Tenants as payees thereon. If there
shall be recorded against the Premises or the Real Property any claim or lien
arising out of any such work performed, materials furnished or obligations
incurred by Tenant and such claim or lien shall not be removed or discharged
within ten (10) days of filing, Landlord shall have the right but not the
obligation to pay and discharge said lien without regard to whether such lien
shall be lawful-or correct and the amount thereof, upon being billed to Tenant
shall be immediately paid by Tenant to Landlord, or to require that Tenant
deposit with Landlord in lawful money of the United States, one hundred and- one
hundred fifty percent (150%) of the amount of such claim, which sum may be
retained by Landlord until such claims shall have been removed of record or
unti1judgment shall have been rendered on such claim and such judgment shall
have become final, at which time Landlord shall have the right to apply such
deposit in
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discharge of the judgment on said claim and any costs, including attorney's fees
incurred by Landlord, and shall remit the balance thereof to Tenant.
12. BUILDING SERVICES.
(a) Landlord agrees to furnish to the Premises, at its expense, so
long as Tenant is not in default hereunder, from 9:00 a.m. to 5:30 p.m. Mondays
through Fridays and 9:00 a.m. to 1:00 p.m. on Saturdays, local and national
holidays excepted, air conditioning and heat, elevator service, electric current
for normal lighting and fractional horse power office machines and, on the same
floor as the Premises, water for lavatory and drinking purposes, all in such
reasonable quantities as in the judgment of Landlord is reasonably necessary for
the comfortable occupancy of the Premises. Janitorial and maintenance services
will be famished five days per week. Tenant shall comply with all rules and
regulations which Landlord may reasonably establish for the proper functioning
and protection of the air conditioning, heating, elevator, electrical and
plumbing systems. Landlord shall not be liable for, and there shall be no rent
abatement as a result of any stoppage, reduction or interruption of any such
services caused by governmental rules, regulations or ordinances, riot, strike,
labor disputes, breakdowns, accidents, force majeure events, necessary repairs
or other cause. Except as specifically provided in this Xxxxxxxxx 00, Xxxxxx
agreed to pay upon being billed therefor by Landlord for all utilities and other
services utilized by Tenant for all overtime or additional building services
famished to Tenant not uniformly famished to all Tenants of the Building.
Landlord's obligation to render to the Premises the services set forth in this
Paragraph 12 is conditional upon the payment by Tenant of all sums due under
this Lease, including but not limited to sums which are in dispute.
(b) Tenant shall not permit the consumption in the Premises of more than
two (2) xxxxx per net usable square foot in the Premises in respect of office
lighting nor shall Tenant permit the consumption in the Premises of more than
one (1) xxxxx per net usable square foot of space in the Premises in respect of
the power outlets therein, at any one time. If such limits are exceeded,
Landlord shaJ1 have the right to remove any lighting fixture or any fluorescent
tube or bulb therein as it deems necessary and/or to charge Tenant for the cost
of the additional electricity consumed. Tenant will not without the written
consent of Landlord use any apparatus or devise in the Premises, including
without limitation electronic data procession machines, punch card machines and
machines using current in excess of 110 volts, which will in any way increase
the amount of electricity or water usually furnished or supplied for use of the
Premises as general office space; nor connect any apparatus, machine or device
with water pipes or electric current (except through existing electrical outlets
in the Premises), for the purpose of using electric current or water.
(c) If Tenant shall require electric current in excess of that which
Landlord is obligated to famish under Paragraph 12(b) above, Tenant shall first
obtain the consent of Landlord, which Landlord may refuse, to the use thereof
and Landlord may cause an electric current meter to be installed in the Premises
to measure the amount of electric current consumed for any such other use. The
cost of any such meter and of installation, maintenance and repair thereof shall
be paid for by Tenant and Tenant agrees to pay to Landlord promptly upon demand
therefor by Landlord for all. such electric current consumed by any such use as
shown by said meter, at the rates charged for such services by the public
utility providing the service, plus any additional expense incurred by Landlord
in keeping account of the electric current so consumed.
(d) If any lights, machines or equipment (including but not limited to
computers) are used by Tenant in the Premises which materially affect the
temperature otherwise maintained by the air conditioning system, or generate
substantially more heat in the Premises than would be generated by the Building
standard lights and usual Fractional horsepower office equipment, Landlord shall
have the right to install any machinery and equipment which Landlord reasonably
deems necessary to restore temperature balance, including but not limited to
modifications to the standard air conditioning equipment, and the cost thereof,
including the cost of installation and any additional cost of operation and
maintenance occasioned thereby, shall be paid by Tenant to Landlord upon demand
by Landlord. Landlord shall not be liable under any circumstances for loss of 6r
injury to
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property, however occurring, through or in connection with or incidental to
failure to furnish any of the foregoing.
(e) If Tenant requires heating, ventilation and/or air conditioning
during times other than the times provided in Paragraph 12(a) above, Tenant
shall give Landlord such advance notice as Landlord shall reasonably require
(which notice is currently twenty four hours) and shall pay for the use of such
equipment such reasonable fee or charge as Landlord shall require. Landlord's
current fees for after-hours heating, ventilation and/or air conditioning is
sixty five dollars ($65.00) per hour, which amount is subject to change..
(f) Landlord may impose a reasonable charge for any utilities or
services, including without limitation electric current required to be provided
by Landlord for use of the Premises other than during the times provided in
Paragraph 12(a) above.
13. RIGHTS OF LANDLORD. Landlord and its agents shall have the right to
enter the Premises at all reasonable times for the purpose of cleaning the
Premises, examining or inspecting the same, serving or posting and keeping
posted thereon notices as provided by law, or which Landlord deems necessary for
the protection of Landlord or the Real Property, showing the same to prospective
Tenants or purchasers of the Real Property, and for making such alterations,
repairs, improvements or additions to the Premises or to the Building as
Landlord may deem necessary or desirable. Landlord may enter at any time in case
of emergency. If Tenant shall not be present to open the Premises when such an
entry by Landlord is necessary or permitted hereunder, Landlord may enter by
means of a master key or may enter forcibly, without liability to Tenant except
for any failure to exercise due care for Tenant's property, and without
affecting this Lease.
14. INDEMNITY, EXEMPTION OF LANDLORD FROM LIABILITY.
(a) Tenant shall indemnify, defend and hold Landlord and Landlord's
agents and employees harmless from any and all claims, demands, liabilities,
causes of action, costs and attorneys' fees arising from Tenant's use of the
Premises and/or Real Property from the conduct of its business, from any
activity, work or thing which may be permitted or suffered by Tenant in or about
the Premises and/or Real Property, from any and all claims arising from any
breach or default in the performance of any obligation on Tenant's part to be
performed under this Lease or arising from any negligence of Tenant or any of
its agents, contractors, employees or invitees, patrons, customers or members
and from any and all costs, attorney's fees, expenses and liabilities incurred
in the defense of any claim or any action or proceeding brought thereon,
including negotiations in connection therewith. Tenant hereby assumes all risk
of loss or damage to property or injury or death to persons in or about the
Premises and/or Real Property from any cause, and Tenant hereby waives all
claims in respect thereof against Landlord, excepting only where the damage is
caused solely by willful conduct of Landlord or its authorized agents.
(b) Landlord shall not be liable for injury to Tenant's business, or
loss of good will or income therefrom, or for damage that may be sustained by
the person, or property of Tenant, its employees, invitees, customers, agents,
or contractors, or any other person in, on or about the Premises and/or Real
Property directly or indirectly caused by or resulting from fire, steam,
electricity, gas, water, or rain which may leak or flow from or into any part of
the Premises and/or Real Property, or from the breakage, leakage, obstruction or
other defects of the pipes, sprinklers, wires, appliances, plumbing, air
conditioning, light fixtures, or mechanical or electrical systems, whether such
damage or injury results from conditions arising upon the Premises/Building or
upon other portions of the Building or Real Property 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 Tenant, except in connection with
damage or injury resulting from the sole willful misconduct of Landlord, or its
authorized agents. Landlord shall not be liable to Tenant for any damages
arising from any act or neglect of any other tenant of the Building. Tenant
shall indemnify, defend and hold Landlord and Landlord's agents and employees
harmless from any and all claims, demands,
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liabilities, costs or attorneys' fees arising from any person or entity claiming
Landlord is liable to them for loss, damage or injury arising from matters set
forth in this Paragraph 14 (b).
(c) Tenant acknowledges that Landlord's election to provide
mechanical surveillance or to post security personnel in the Building is
solely with Landlord's discretion; Landlord shall have no liability in
connection with the decision whether or not to provide such services and
Tenant hereby waives all claims based thereon. Landlord shall not be liable
for losses due to theft, vandalism, or like causes. Tenant shall defend,
indemnify, and hold Landlord and Landlord's agents and employees harmless from
any such claims made by any employee, licensee, invitee, contractor, agent, or
other person whose presence in, on or about the Premises or the Real Property
is attendant to the business of Tenant, which agreement to defend, indemnify
and hold harmless shall include indemnification of attorneys' fees. Tenant
acknowledges that in the event Landlord shall elect to provide mechanical
surveillance or to post security personnel in the Building, that Landlord's
election to do so shall not make Landlord liable for the failure of such
measures to protect Tenant or its employees, agents, invitees or contractors
from injury, loss, damage, cost or expense.
(d) Landlord shall not be personally liable for the performance of
Landlord's obligations under this Lease. If Tenant acquires any rights or
remedies against Landlord (including, but not limited to, the right to satisfy
a judgment), these rights and remedies shall be satisfied solely from the
lesser of (a) Landlord's estate and interest in the Real Property (or the
proceeds therefrom), or (b) the estate and interest Landlord would have in the
Real Property (or the proceeds therefrom) if the Real Property were encumbered
by third-party debt in an amount equal to eighty percent (80%) of the value of
the Real Property; such rights and remedies shall not be satisfied, in any
event, from any other property or assets of Landlord.
15. INSURANCE.
15.1 Tenant's Insurance. Tenant shall have the following
insurance obligations.
(a) Liability Insurance. Tenant shall obtain and keep in full force a
policy of commercial general liability and property damage insurance, including
but not limited to personal injury, broad form contractual liability, owner's
(i.e., Tenant's) contractors protective and broad form property damage under
which Tenant is named as the insured and Landlord, Landlord's agent and any
lessors and mortgagees (whose names shall have been furnished to Tenant) are
named as additional insureds. The minimum limits of liability shall be a
combined single limit with respect to each occurrence of not less than Two
Million Dollars ($2,000,000.00). The policy shall contain a cross liability
endorsement, and shall be primary coverage for Tenant and Landlord for any
liability arising out of Tenant's and Tenant's Employees' use, occupancy or
maintenance of the Premises and Project and all areas appurtenant thereto.
Tenant shall also obtain and keep in force automobile liability, including
bodily injury and property damage, with minimum limits of liability of a
combined single limit with respect to each occurrence of not less than Two
Million Dollars ($2,000,000.00). Such insurance policies shall provide that they
are primary insurance and not "excess over" or contributory, Not more frequently
than once each year, if, in the opinion of Landlord's lender or of the insurance
consultant retained by Landlord, the amount of public liability and property
damage insurance coverage at that time is not adequate, Tenant shall increase
the insurance coverage as required by either Landlord's lender or Landlord's
insurance consultant; provided however, that in no event shall any such
insurance coverage be increased in excess of that which is from time to time
being required by comparable landlord of comparable tenants leasing comparable
amounts of space in other first-class buildings in the vicinity of the Building.
(b) Tenant's Property Insurance Tenant at its cost shall maintain on
all of its personal property, including, without limitation, Tenant's valuable
papers, furniture, fixtures, leasehold improvements installed by or at the
expense of Tenant, equipment and inventory, in, on, or about the Premises, an
"all risk" property policy including coverage for sprinkler leakage and
containing an agreed amount endorsement in an amount not less than one hundred
percent (100%) of the full replacement cost valuation under which Tenant is
named as the insured and Landlord, Landlord's
/s/ (Tenant's Name)
agents and any lessors and mortgagees (whose names shall have been furnished to
Tenant) are additional insureds as their interests may appear. The proceeds from
any such policy shall be used by Tenant for the replacement of such personal
property and improvements. The "full replacement cost valuation" of the personal
property and improvements to be insured under this Paragraph 15 shall be
furnished to the company issuing the insurance policy by Tenant at least once
every year. Tenant's property insurance shall not provided for a deductible of
more than One Thousand Dollars ($ 1,000).
(c) Workers' Compensation Insurance. Tenant shall maintain Workers'
Compensation insurance as required by law and Employer's Liability insurance in
an amount less than One Million Dollars ($1,000,000.00).
(d) Business Interruption/Extra Expense Insurance. Tenant shall maintain
loss of income, business interruption and extra expense insurance in such
amounts as will reimburse Tenant for direct or indirect loss of earnings and
incurred costs attributable to the perils commonly covered by Tenant's property
insurance described above but in no event less than one yew's loss of income,
business interruption, and extra expense. Such insurance will be carried with
the same insurer that issues the insurance for the personal property.
(e). Other-Coverage. Tenant at its cost, shall maintain such other
insurance as Landlord may reasonably require from time to time.
(f) Insurance Criteria: All the insured required to be maintained by
Tenant under this Lease shall:
(aa) Be issued by insurance companies admitted in the State of
California, with a financial rating of at least an AX as provided by the most
recent edition of Best's Key Rating Guide;
(bb) Be issued as a primary policy;
(cc) Contain an endorsement requiring thirty (30) days' written
notice from the insurance company to both parties and to Landlord's lender
before cancellation or any material change in the coverage, scope, or amount of
any policy;
(dd) A waiver of subrogation must be obtained, as required by
Paragraph 15.3.
(g) Evidence of Coverage. A duplicate original policy, or a certificate
of insurance shall be deposited with Landlord at the commencement of the term,
and on renewal of the policy a certificate of insurance listing the insurance
coverages required hereunder and naming Landlord and any other interested
parties as additional insured shall be deposited with Landlord not less than
thirty (30) days before expiration of the term of the policy.
In the event Tenant does not comply with the requirements of Paragraph
15. 1 (a) above, Landlord may, at its option and at Tenant's sole cost and
expense, purchase such insurance coverage to protect Landlord. The cost of the
premium of any such insurance purchased by Landlord shall be paid to Landlord by
Tenant, as additional rent, immediately upon demand therefor.
15.2 Landlord's Insurance Landlord shall have the following obligations:
Landlord shall maintain in effect at all times "all
risk7property insurance covering fire, lightning, windstorm,
vandalism, malicious mischief and 411 other risks normally covered by "all risk"
policies in the downtown Los Angeles financial district. Such insurance shall
provide coverage for one hundred percent (100%) of the full replacement cost
valuation of the Building, tenant improvements paid for by Landlord and
Landlord's personal property including its furniture, fixtures and equipment,
subject to commercially reasonable deductibles. Landlord shall also obtain
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and keep in full force (a) a policy of commercial general liability insurance
and (b) loss of rent insurance, all such insurance being in amounts and with
deductibles comparable to the insurance being carried by landlords of other
comparable firs class institutional quality office buildings in the Sunset Strip
district. Landlord may, but shall not be required to, maintain earthquake
coverage.
15.3 Allocation of Insured Risks/Waiver of Subrogation. Landlord and
Tenant mutually waive and release any and all rights of recovery and claims
either has against the other and each of their respective agents, employees,
directors, shareholders, officers, partners, trustees and representatives, for
losses or damages that are caused by or result from perils insured against under
any insurance policies carried by the parties, but only to the extent of such
insurance coverage afforded, provided, however, that nothing contained in this
subparagraph (b) shall derogate the provisions of Paragraph 14, above. Landlord
and Tenant shall cause each insurance policy obtained by them, or either of
them, to provide that the insurance company waives all right of recovery by way
of subrogation against either Landlord or Tenant in connection with any lose or
damage covered by any such policy or policies.
16. ASS1GNMENT AND SUBLETTING.
(a) The Tenant shall not, either voluntarily or by operation of law,
directly or indirectly, sell, hypothecate, assign or transfer (collectively
"Assignment ") this Lease, or sublet the Premises or any part thereof, or permit
the Premises or any part thereof to be occupied by anyone other than Tenant or
Tenant's employees, without the prior written consent of Landlord in each
instance, A transfer of stock control in Tenant, if Tenant is a corporation, or
the transfer of any partnership interest in Tenant, if Tenant is a partnership,
shall be deemed an act of assignment hereunder. Landlord's consent to an
Assignment or subletting shall not be unreasonably withheld provided the
proposed procedures contained in subparagraphs (b) and (c) below are followed
and provided that the assignee or subtenant (i) is satisfactory to Landlord as
to credit, character and professional standing, (ii) will meet any other Tenant
requirements then generally imposed by Landlord with respect to new tenants of
the Building, and (iii) will use the Premises for the same use and in the same
manner specified in Paragraph I hereof. It shall not be unreasonable for
Landlord to withhold its consent to any proposed Assignment or Sublet if (i) the
occupancy of the proposed assignee or subtenant will tend to impair the
character or dignity of the Building (ii) the proposed use will impose any
additional burden upon Landlord in the operation of the Building. (iii) the
proposed transferee's anticipated use of the Premises involves the generation,
storage, use, treatment, or disposal of Hazardous Material; (iv) the proposed
Transferee has been required by any prior landlord, lender, or governmental
authority to take remedial action in connection with Hazardous Material
contaminating a property if the contamination resulted from such transferees
actions or use of the property in question; or (v) the proposed Transferee is
subject to an enforcement order issued by any governmental authority in
connection with the use, disposal, or storage of a Hazardous Material.
Any sale, assignment, mortgage, transfer or subletting of this Lease
which is not in compliance with the provisions of this Paragraph 16 shall be
void and shall, at the option of Landlord, terminate this Lease. The consent by
Landlord to one assignment or subletting shall not relieve Tenant for obtaining
the prior written consent of Landlord to any farther assignment or subletting or
release Tenant from any liability or obligation hereunder, whether or not then
accrued. Further, all advertising with respect to the leasing, subletting or
assignment of space in the Building must be approved in writing by Landlord
prior to publication.
(b) As conditions precedent to Landlord's consent to any assignment or
subletting of the whole or any part of the Premises:
(i) At least twenty five (25) days prior to any proposed
assignment or subletting, Tenant shall submit to Landlord a statement
containing: (A) the name and address of the proposed assignee or subtenant; (B)
a financial statement of the proposed assignee or subtenant containing bank and
other credit references; (C) the type of use proposed for the Premises; and (D)
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all of the principal terms and conditions of the proposed assignment or
subletting including, but not limited to, the proposed commencement and
expiration dates of the term thereof and the amount of Tent payable by the
assignee or subtenant and, a floor plan delineating the proposed assigned or
sublet area; and
(ii) Tenant shall deliver to Landlord an original assignment or
sublease executed by Tenant and the proposed assignee or subtenant an a form
approved by Landlord;
(iii) Tenant shall pay Landlord's reasonable attorneys fees and
other costs incurred in connection with such assignment or subletting; plus a
non-refundable fee of $250 for Landlord's time in processing Tenant's request-,
(iv) If the consideration received by Tenant for such assignment
or sublease (after deducting therefrom leasing commissions, rental paid during
any period in which the Premises were vacant, the unamortized part of Tenant's
contribution to over-standard Tenant improvements, if any, and any other
reasonable out-of-pocket expenses of Tenant incurred in connection with such
subleasing or assignment of the Premises) exceeds the Basic Rent and the
Additional Rent, or pro rated portion thereof, as the case may be, for such
space reserved in this Lease, Tenant shall pay to Landlord when received, an
additional Basic Rent, one hundred percent (100%) of the excess of the
consideration paid in correction with the assignment or sublease, over the Basic
Rent and Additional Rent then due, reserved in this Lease applicable to the
assigned or subleased space.
17. DAMAGE OR DESTRUCTION
(a) Damage - Insured. In the event the Premises or the Building are
damaged by any casualty which is covered under fire and extended coverage
insurance carried by Landlord, then Landlord shall restore such damage provided
insurance proceeds are available to Landlord to pay eighty percent (80%) or more
of the cost of restoration and provided such restoration can be completed within
sixty (60) days after the commencement of the work in the opinion of a
registered architect or engineer appointed by Landlord In such event this Lease
shall continue in full force and effect, except that Tenant shall be entitled to
an equitable reduction of rent while such restoration takes place, such
reduction to be based upon the extent to which the restoration efforts interfere
with Tenant's business in the Premises.
(b) Damage - Uninsured. In the event the Premises or the Building are
damaged by a risk not covered by Landlord's policy or the proceeds of insurance
available to Landlord are less than eighty percent (80%) of the cost of
restoration, or if the restoration cannot be completed with sixty (60) days
after the commencement of work in the opinion of the registered architect or
engineer appointed by Landlord, then Landlord shall have the option either to
(i) repair or restore such damage, this Lease continuing in full force and
effect, but the rent to be equitable abated as hereinabove provided, or (ii)
give notice to Tenant at any time within thirty (30) days after such damage
terminating this Lease as of a date to be specified in such notice, which date
shall be not less than 30 nor more than sixty (60) days after giving such
notice. In the event of giving of such notice, this Lease shall expire and all
interest of Tenant in the Premises shall terminate on such date so specified in
such notice and the rent reduced by any proportionate reduction based upon the
extent, if any, to which said damage interfered with the use and occupancy of
Tenant, shall be paid to the date of such termination; Landlord agrees to refund
to the Tenant any rant theretofore paid in advance for any period of time
subsequent to such date.
(c) Landlord's Obligation. The Landlord shall not be required to
repair any injury or damage by fire or other cause, or to make any restoration
or replacement of any paneling, decoration, partitions, ceilings, floor
coverings, office fixtures or any other tenant improvements or property
installed in the Premises by Tenant or at the direct or indirect expense of
Tenant. Tenant shall be required to restore or replace same in the event of
damage. Tenant shall have no claim against Landlord for any damage suffered by
reason of any such damage, destruction, repair or restoration.
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(d) Waiver by Tenant. Tenant shall have no right to terminate this
Lease as a result of any statutory provision now or hereafter in effect
pertaining to the damage and destruction of the Premises of the Building, except
as expressly provided herein, and Tenant expressly waives the provisions of
Civil Code Section 1932(2) and Civil Code Section 1933(4) with respect to any
destruction of the Premises.
18. SUBORDINATION. This Lease is subject and subordinate to all ground or
underlying leases, mortgages and deeds of trust which affect the Property or the
Real Property and to all renewals, modification, consolidation, replacements and
extensions thereof; provided, however, if the lessor under any such lease or the
holder or holders of any such mortgage or deed of trust shall advise Landlord
that they desire or require this Lease to be prior and superior thereto, this
Lease shall be so, and upon written request of Landlord to Tenant, Tenant agrees
within ten (10) days after Landlord's request, to execute, acknowledge and
deliver any and all documents or instruments which Landlord or such lessor,
holder or holders deem necessary or desirable for purposes thereof Landlord
shall have the right to cause this Lease to be subject and subordinate to any
and all ground or underlying leases, mortgages or deeds of trust which may
hereafter be executed covering the Premises, the Building or the Real Property
or any renewals, modification, consolidations, replacements or extensions
thereof, provided, however, that Landlord obtains from the lender or ground
lessor a written undertaking in favor of Tenant to the effect that such lender
or ground lessor will not disturb Tenant's rights of possession under this Lease
if Tenant is not then or thereafter in breach of any covenant or provision of
this Lease. Tenant hereby appoints Landlord the attorney in-fact of Tenant
irrevocable to execute and deliver any document or documents provided for herein
for and in the name of Tenant, such power, being coupled with an interest, is
irrevocable.
19. EMINENT DOMAIN. If the whole of the Premises or so much thereof as to
render the balance unusable by Tenant shall be taken under power of eminent
domain, or is sold, transferred or conveyed in lieu thereof ("taking"), this
Lease shall automatically terminate as of the date of such condemnation, or as
of the date possession is taken by the condemning authority, at Landlord's
option. No award for any partial or entire taking shall be apportioned, and
Tenant hereby assigns to Landlord any award which may be made in such taking or
condemnation, together with any and all rights of Tenant now or hereafter
arising in or to the same of any part thereof-, provided, however, that nothing
contained herein shall be deemed to give Landlord any interest in or to require
Tenant to assign to Landlord any award made to Tenant for the taking of personal
property and trade fixtures belonging to Tenant and removable by Tenant at the
expiration of the term hereof as provided hereunder or for the interruption of,
or damage to Tenant's business. In the event of a partial taking, which does not
result in a termination of this Lease, the rent shall be apportioned according
to the ratio that the part of the Premises remaining usable by Tenant bears to
the total area of the Premises.
20. DEFAULTS: REMEDIES.
(a) Defaults. The following events shall constitute a material
default under this Lease:
(i) The vacating or abandonment of the Premises by Tenant.
(ii) The failure by Tenant to make any payment of rent or any
other payment required to be made by Tenant hereunder, as and when due, or the
failure by Tenant to observe or perform any of the covenants, conditions or
provisions of this Lease to be observed or performed by Tenant, where such
failure shall continue for a period of three (3) days after written notice
thereof from Landlord to Tenant. Such notice need be given only once and may
state in the alternative that Tenant must pay the sum due or perform the
covenant, whichever is applicable, or quit the Premises within said three (3)
day period.
(iii) The making by Tenant of any general assignment, or
general arrangement for the benefit of creditors, (b) the filing by or against
Tenant of a petition to have Tenant adjudged a bankrupt or a petition for
reorganization or arrangement under any bankruptcy
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law (unless the petition filed against Tenant is dismissed within thirty (30)
days; (c) the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within thirty
(30) days; or (d) the attachment execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged within thirty (3 0)
days.
(b) Remedies. In the event of any such material default, Landlord may
at any time there after and with out limiting Landlord in the exercise of any
right or remedy which Landlord may have by reason of such default:
(i) Landlord has the remedy described in California Civil Code
Section 1951.4 to maintain this Lease in full force and effect and recover the
rent and 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 relet 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 Tenant. In
the event any such reletting occurs, this Lease shall terminate automatically
upon the new tenant taking possession of the Premises. Notwithstanding that
Landlord fails to elect to terminate the Lease initially. Landlord at any time
during the term of this Lease may elect to terminate this Lease by virtue of
such previous default by Tenant. In the event of such subsequent termination,
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default as specified in the following paragraph.
(ii) Terminate Tenant's right to possession by any lawful
means, in which case this Lease shall terminate and Tenant shall immediately
deliver 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 thereto, the following: (1) the
worth at the time of the award of any unpaid rent which had been earned at the
time of such termination: plus (2) the worth at the time of award of the amount
by which the unpaid rent which would have been earned after termination until
the time of award exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided: plus (3) the worth at the time of award of
the amount by which the unpaid rent for the balance of the term after the time
of award exceeds the amount of such rental loss that Tenant proves could be
reasonably avoided: plus (4) any other amount necessary to compensate Landlord
for all the detriment approximately caused by Tenant's failure to perform
Tenant's obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom (including, without limiting the generality
of the foregoing, the amount of any commission and/or finder's fee for a
replacement tenant, and costs to improve the Premises for a replacement tenant);
plus (5) at Landlord's election, such other amounts in addition to or in lieu of
the foregoing as may be permitted from time to time by applicable California
law. Upon any such re-entry Landlord shall have the right to make any reasonable
repairs, alterations or modifications to the Premises, which Landlord in his
sole discretion deems reasonable and necessary. As used in subparts (i) and (ii)
of this subparagraph (b) ,the "worth at the time of award" is computed by
allowing interest at the then legal maximum rate of interest for a business
obligation; and, as used in subpart (3) of this subparagraph (b), the worth at
the time of award is computed by discounting such amount at the discount rate of
the U.S. Federal Reserve Bank of San Francisco at the time of award plus 1%. The
term "rent," as used in this Paragraph, shall be deemed to be and to mean all
rentals to be paid pursuant to this Lease and all other monetary sums required
to be paid by Tenant pursuant to the terms of this Lease.
(iii) Landlord may, at Landlord's option, retain any or all of
Tenant's property remaining on the Premises, and title thereto shall thereupon
vest in Landlord without the execution of a document of sale or conveyance by
Tenant; or Landlord may remove any or all items
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of Tenant's property from the Premises and dispose of them in any manner
Landlord sees fit, and Tenant shall pay upon demand to Landlord the actual
expense of such removal and disposition together with interest, at the then
maximum interest rate allowed by law for a business obligation, from the date of
payment by Landlord until repayment by Tenant.
(iv) Pursue any other remedy now or hereafter available to
Landlord under the laws or judicial decisions of the State of California.
(c) Late Charges. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent and other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to as certain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Tenant shall
not be received by Landlord within five (5) days after such amount shall be due,
Tenant shall pay to Landlord a late charge equal to ten percent (10%) of such
overdue amount, which shall be additional rent. The parties hereby agree that
such late charge represents a fair and reasonable estimate of the costs Landlord
will incur by reason of late payment by Tenant.
(d) Persistent Delinquencies. If Tenant shall be delinquent by more
than fifteen (15) days in the payment of rent on three separate occasions in any
twelve (12) month period, Landlord shall have the right to terminate this Lease
by thirty (30) day written notice given by Landlord to Tenant within thirteen
(13) months of the last such delinquency.
21. TRANSFER OF LANDLORD'S INTEREST. If Landlord transfers its interest in
the Premises or in the Real Property, other than a transfer for security
purposes only, the transferor shall be automatically relieved of any and all
obligations and liabilities on the part of Landlord from and after the date of
such transfer, including without limitation the obligation of Landlord under
Paragraph 5 above to return the security deposit as provided therein.
22. BROKER In connection with this Lease, Tenant warrants and represents
that it has had dealings only with the broker named in paragraph I above and
that it knows of no other person or entity who is or might be entitled to a
commission, finder's fee or other like payment in connection herewith and does
hereby indemnify and agree to hold Landlord, its agents, partners,
representatives, officers, affiliates, shareholders, employees, successors and
assigns harmless from and against any and all loss, liability and expenses that
Landlord may incur should such warranty and representation prove incorrect,
inaccurate or false.
23 PARKING. Tenant shall be entitled to rent the number of unreserved
parking space(s) for set forth in Paragraph 1 above in the parking areas as
designated by Landlord. Such parking shall be available upon terms and
conditions to be established from time to time by Landlord or Landlord's
operator of such parking facilities, but Landlord does not warrant or represent
that the parking will continue to be available if Tenant does not rent the same
continuously from the commencement of the term of this Lease. In addition, to
the extent available, Tenant shall have the right to validation parking in the
parking areas designated by Landlord upon terms and conditions to be
established from time to time by Landlord or Landlord's operator of such parking
facilities. Tenant acknowledges that neither Landlord nor any agent of Landlord
has made any representation or warranty as to the suit ability of the parking
areas, or as to the availability of parking spaces, for the conduct of Tenant's
business.
24. WAIVER. No waiver by Landlord of any provision of this Lease shall be
deemed to be a waiver of any other provision hereof or of any subsequent breach
by Tenant of the same or any other provision. No provision of this Lease may be
waived, except by an instrument in writing executed by the waiving party.
Landlord's consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to render unnecessary the obtaining of
Landlord's consent to or approval of any subsequent act of Tenant, whether or
not similar to the act
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so consented to or approved. No act or thing done by Landlord or Landlord's
agents during the term of this Lease shall be deemed an acceptance of a
surrender of Premises, and no agreement to accept such surrender shall be valid
unless in writing and signed by Landlord. Any payment by Tenant or receipt by
Landlord of an amount less than the total amount then due hereunder shall be
deemed to be in partial payment only thereof and not a waiver of the balance due
or an accord and satisfaction, notwithstanding any statement or endorsement to
the contrary on any check or any other instrument delivered concurrently
therewith or in reference thereto. Accordingly, Landlord may accept any such
amount and negotiate any such check without prejudice to Landlord's right to
recover all balances due and owing and to pursue its other rights against Tenant
under this Lease, regardless of whether Landlord makes any notation on such
instrument of payment or otherwise notifies Tenant that such acceptance or
negotiation is without prejudice to Landlord's right to recover all balances due
and owing and to pursue its other rights against Tenant under this Lease.
25. ESTOPPEL CERTIFICATE. Tenant shall from time to time, upon not less
than ten (1O) days' prior written notice from Landlord, execute, acknowledge,
and deliver to Landlord a statement in writing certifying certain facts
including, without limitation, that this Lease is unmodified and in full force
and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect) and the
dates to which the rental, the security deposit, if any, and other charges, if
any, are paid in advance, and acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder, and no events
or conditions then in existence which, with the passage of time or notice or
both, would constitute default on the part of Landlord hereunder, or specifying
such defaults, events, or conditions, if any are claimed. Any prospective
purchaser or encumbrancer of the Building shall be entitled to rely upon any
such statement, Tenant's failure to deliver such statement within such time
shall, at the option of Landlord, constitute a breach or default under this
Lease if such option is not so exercised by Landlord, Tenant's failure shall be
conclusive upon Tenant that (i) this Lease is in full force and effect without
modification except as may be represented by Landlord; (ii) that there are no
uncured defaults in Landlord's performance; and (iii) that not more than two (2)
months' rental has been paid in advance. If Tenant fails to deliver the
certificate within ten (1O) days, Tenant irrevocable constitutes and appoints
Landlord as its special attorney-in-fact to execute and deliver the certificate
to a third party.
26. FORCE MAJEURE. This Lease and the obligations of Tenant hereunder
shall not be affected or impaired by reason of unavailability of materials,
strike or other labor troubles or any other cause beyond the reasonable control
or anticipation of Landlord.
27. HAZARDOUS WASTE.
(a) Tenant shall not cause or permit any Hazardous Material (as
defined in Paragraph 27(c) below) to be brought, kept or used in, an, under or
about the Real Property by Tenant, its agents, employees, contractors, or
invitees. Tenant shall defend, indemnify and hold harmless Landlord, its agents,
partners, officers, employees, successors, assigns, lenders and insurers from
and against any breach by Tenant of the obligations stated in the preceding
sentence, including any and all claims, judgments, damages, penalties, fines,
costs, liabilities, or losses (including, without limitation, diminution in
value of the Building, damages for the loss or restriction or use of rentable or
usable space or of any amenity of the Building, damages arising from any adverse
impact on marketing of space in the Building, and sums paid in settlement of
claims, attorney's fees, consultant fees and expert fees) which arise during or
after the term of this Lease as a result of such breach. This indemnification of
Landlord by Tenant includes, without limitation, costs incurred in connection
with any investigation of site conditions or any cleanup, remedial, removal, or
restoration work required by any federal, state, or local governmental agency or
political subdivision because of Hazardous Material present in the soil or
ground water on or under the Real Property. Without limiting the foregoing, if
the presence of any Hazardous Material in the Real Property caused or permitted
by Tenant results in any contamination of the Real Property, Tenant shall
promptly, subject to Paragraphs 10 and 11 hereof take all actions, at its sole
expense, as are necessary to return the Real Property to the condition existing
prior to the introduction of any such Hazardous Material.
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(b) Landlord and Tenant acknowledge that Landlord may become legally
liable for the costs of complying with Laws (as defined in Paragraph 27(d)
below) relating to Hazardous Material which are not the responsibility of
Landlord or the responsibility of Tenant, including the following: (i) Hazardous
Material present in the soil or ground water on the Real Property of which
Landlord has no knowledge as of the effective date of this Lease; (ii) a change
in Laws which relate to Hazardous Material which make that Hazardous Material
which is present on the Property as of the effective date of this Lease, whether
known or unknown to Landlord, a violation of such new Laws; (iii) Hazardous
Material that migrates, flows, percolates, diffuses, or in any way moves on, to,
or under the Real Property after the effective date of this Lease; or Hazardous
Material present on or under the Real Property as a result of any discharge,
dumping or spilling (whether accidental or otherwise) on the Real Property by
other lessees of the Real Property or their agents, employees, contractors, or
invitees, or by others. Accordingly, Landlord and Tenant agree that the cost of
complying with Laws relating to Hazardous Material on the Real Property for
which Landlord is legally liable and which are paid or incurred by Landlord
shall be an Operating Cost (and Tenant shall pay Tenant's Proportionate Share
thereof in accordance with Paragraph 4) unless the cost of such compliance, as
between Landlord and Tenant, is made the responsibility of Tenant pursuant to
Paragraph 27(a) above. To the extent any such Operating Cost relating to
Hazardous Material is subsequently recovered or reimbursed, Tenant shall be
entitled to a proportionate reimbursement to the extent it has paid its share of
such Operating Cost to which such recovery or reimbursement relates.
(c) As used herein, the term "Hazardous Material," means any
hazardous or toxic substance, material, or waste which is or becomes regulated
by any local governmental authority, the State of California or the United
States Government, The term "Hazardous Material" includes, without limitation,
any material or substance which is (i) de6ned as "hazardous waste," "extremely
hazardous waste", or "restricted hazardous waste" under Section 25115, 25117, or
25122.7, or listed pursuant to Section 25140 of the California Health and Safety
Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a
"hazardous substance" under Section 253 16 of the California Health and Safety
Code, Division 20, Chapter 6.8 (Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous Substance
Account Act), (iii) defined as a "hazardous material," "Hazardous substance", or
"hazardous waste" under Section 25501 of the California Health and Safety Code,
Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and
Inventory), (iv) defined as a "hazardous substance "under Section 25281 of the
California Health and Safety Code, Division 20, 6.7 (Underground Storage of
Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) listed under
Paragraph 9 hereof, defined as hazardous or extremely hazardous pursuant to
Article 11 of Title 22 of the California Administrative Code, Division 4,
Chapter 20, (viii) designated as a "hazardous substance" pursuant to section 311
of the Federal Water Pollution control Act (33 U.S.C. & 1317), (ix) defined as a
"hazardous waste" pursuant to Section 1004 of the Federal Resource Conservation
and Recovery Act, 42 U.S.C. & 6901) et seq. (42 U.S.C. & 6903), or (x) defined
as a "hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. & 6901 et seq.
(42 U.S.C. & 9601).
(d) As used herein, the term "Laws" mean any applicable federal,
state or local laws, ordinances, or regulation relating to any Hazardous
Material affecting the Real Property, including, without limitation, the laws,
ordinances, and regulation referred to in Paragraph 27(c) above.
28. SURRENDER OF PREMISES, REMOVAL OF PROPERTY.
Upon the expiration of the term of this Lease, or upon any earlier
termination of this Lease, Tenant shall deliver possession of the Premises to
Landlord in as good order and condition as the same are now and hereafter may be
improved by Landlord or Tenant, and remove from, subject, however, to the
exception set forth in the last sentence of Paragraph 10, and the Premises all
debris and rubbish, all furniture, equipment, business and trade fixtures,
freestanding cabinet work, movable partitioning and other articles of personal
property owned by Tenant or installed or placed
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by Tenant at its own expense in the Premises, and all similar articles of any
other persons Claiming under Tenant unless Landlord exercises its option to have
any subleases or subtenancies assigned to it, and Tenant shall repair all damage
to the Premises resulting from the installation and removal of such items to be
removed. The voluntary or other surrender of this Lease by Tenant to Landlord,
or a mutual termination hereof, shall not work a merger, and shall at the option
of Landlord, operate as an assignment to it of any or all subleases or
subtenancies affecting the Premises.
29. RULES AND REGULATIONS.
(a) No sign, advertisement or notice shall be displayed. printed or
affixed on or to the Premises or to the outside or inside of the Building or so
as to be visible from outside the Premises or Building without Landlord's prior
written consent. Landlord shall have the right to remove any non-approved sign,
advertisement or notice, without notice to and at the expense of Tenant, and
Landlord shall not be liable in damages for such removal. All approved signs or
lettering on doors and walls shall be printed, painted, affixed or inscribed at
the expense of Tenant by Landlord or by a person selected by Landlord and in a
manner and style acceptable to Landlord. Landlord's acceptance of any name for
listing on the Building Directory will not be deemed, nor will it substitute
for, Landlord's consent, as required by this Lease, to any sublease, assignment,
or other occupancy of the demised premises.
(b) Tenant shall not obtain for use on the Premises ice, drinking
water, waxing, cleaning, interior glass polishing, rubbish removal, towel or
other similar services, or accept barbering or bootblacking, or coffee cart
services, milk, soft drinks or other like services on the Premises, except from
persons authorized by Landlord and at the hours and under regulations fixed by
Landlord. No vending machines or machines of any description shall be installed,
maintained or operated upon the Premises without Landlord's prior written
consent.
(c) The sidewalks, halls passages, exits, entrances, elevators and
stairways shall not be obstructed by Tenant or used for any purpose other than
for ingress and egress from Tenant's Premises.
(d) Toilet rooms, toilets, urinals, washbowls and other apparatus
shall not be used for any purpose other than for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown therein.
(e) Tenant shall not overload the floor of the Premises or xxxx,
drive nails, screw or drill into the partitions, ceilings, floor or in any way
deface the premises.
(f) In no event shall Tenant place a load upon any floor of the
Premises or portion of any such flooring exceeding the floor load per square
foot of area for which such floor is designed to carry and which is allowed by
law, or any machinery or equipment which shall cause excessive vibration to the
Premises or noticeable vibration to any other part of the Building. All office
equipment of any electrical or mechanical nature shall be place by Tenants in
the Premises in settings approved by Landlord, to absorb or prevent any
vibration, noise, or annoyance. Prior to bringing any heavy safes, vaults, large
computers or similarly heavy equipment into the Building, Tenant shall inform
Landlord in writing of the dimensions and weight thereof and shall obtain
Landlord's consent thereto, which consent Landlord shall have the right to deny.
Such consent shall not constitute a representation or warranty by Landlord that
the safe, vault or other equipment complies, with regard to distribution of
weight and/or vibration, with the provisions of this Rule (f) nor relieve Tenant
from responsibility for the consequences of such non-compliance, and any such
safe, vault or other equipment which Landlord determines to constitute a danger
of damage to the Building or a nuisance to other Tenants, either alone or in
combination with other heavy and/or vibrating objects and equipment, shall be
promptly removed by Tenant upon Landlord's written notice of such determination
and demand for removal thereof.
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(g) Tenant shall not use or keep in the Premises or Building any
kerosene, gasoline or inflammable, explosive or combustible fluid or material,
or use any method of heating or air-conditioning other than that supplied by
Landlord.
(h) Tenant shall not lay linoleum, tile, carpet or other similar
floor covering so that the same shall be affixed to the floor of the Premises in
any manner except as approved by Landlord.
(i) Tenant shall not install or use any blinds, shades, awnings, or
screens in connection with any window or door of the Premises and shall not use
any drape or window covering facing any exterior glass surface other than the
standard drapes, blinds or other window covering established by Landlord.
(j) Tenant shall cooperate with Landlord in obtaining maximum
effectiveness of the cooling system by closing drapes when the sun's rays fall
directly on windows of the Premises. Tenant shall not obstruct, alter, or in any
way impair the efficient operation of Landlord's heating, ventilating and
air-conditioning system. Tenant shall not tamper with or change the setting of
any thermostats or control valves. No air conditioning unit or other similar
apparatus shall be installed or used by any Tenant without the prior written
consent of Landlord. Tenant shall pay the cost of all electricity used for air
conditioning in the Premises if such electrical consumption exceeds normal
office requirements, regardless of whether additional apparatus in installed
pursuant to the preceding sentence.
(k) The Premises shall not be used for manufacturing or for the
storage of merchandise except as such storage may be incidental to the permitted
use of the Premises. Tenant shall not, without Landlord's prior written consent,
occupy or permit any portion of the Premises to be occupied or used for the
manufacture or sale of liquor or tobacco in any form, or as a xxxxxx or manicure
shop, or as an employment bureau. The Premises shall not be used for lodging or
sleeping or for any improper, objectionable or immoral purpose. No auction shall
be conducted on the Premises.
(l) Tenant shall not make, or permit to be made, any unseemly or
disturbing noises, or disturb or interfere with occupants of Building or
neighboring buildings or Premises or those having business with it by the use of
any musical instrument, radio, phonographs or unusual noise, or in any other
way.
(m) No bicycles, vehicles or animals of any kind shall be brought
into or kept in or about the Premises, and no cooking shall be done or permitted
by any Tenant in the Premises, except that the preparation of coffee, tea, hot
chocolate and similar items for Tenants, their employees and visitors shall be
permitted. No Tenant shall cause or permit any unusual or objectionable odors to
be produced in or permeate from or throughout the Premises.
(n) The sashes, sash doors, skylights, windows and doors that reflect
or admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by any Tenant, nor shall any
bottles, parcels or other articles be placed on the windowsills.
(o) No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by Tenant, nor shall any changes be made in existing
locks or the mechanisms thereof unless Landlord is first notified thereof, gives
written approval, and is furnished a key therefor- Each Tenant must, upon the
termination of his tenancy, give to Landlord all keys of stores, offices or
toilets or toilet rooms, either furnished to, or otherwise procured by, such
Tenant, and in the event of the loss of any keys so furnished such Tenant shall
pay Landlord the cost of replacing the same or of changing the lock or locks
opened by such lost key if Landlord shall deem it necessary to make such change.
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(p) Landlord shall have the right to prohibit any advertising by any
Tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as an office building and upon written notice from
Landlord any Tenant shall refrain from and discontinue such advertising.
(q) Landlord reserves the right to control access to the Building by
all persons after reasonable hours of generally recognized business days and at
all hours on Sundays and legal holidays. Each Tenant shall be responsible for
all persons for whom he requests after-hours access and shall be liable to
Landlord for all acts of such persons. Landlord shall have the right from time
to time to establish reasonable rules pertaining to freight elevator usage,
including the allocation and reservation of such usage for Tenant's initial
move-in to their Premises, and final departure therefrom.
(r) Any person employed by any Tenant to do janitorial work shall,
while in the Building and outside of the Premises, be subject to and under the
control and direction of the Office of the Building (but not as an agent or
servant of Landlord, and the Tenant shall be responsible for all acts of such
persons).
(s) All doors opening onto public corridors shall be kept closed,
except when being used for ingress and egress.
(t) The requirements of Tenants will be attended to only upon
application to the Office of the Building.
(u) Canvassing, soliciting and peddling in the Building are prohibit
and each Tenant shall cooperate to prevent the same.
(v) There shall not be used in any space, or in the public halls of
the Building, either by any Tenant or others, any hand trucks except those
equipped with rubber tires and side guards.
(w) Tenant agrees that it shall comply with all fire security
regulations that may be issued from, time to time by Landlord and Tenant also
shall provide Landlord with the name of a designated responsible employee to
represent Tenant in all matters pertaining to such fire or security regulations.
30. GENERAL PROVISIONS.
(a) Severability; Entire Agreement. If any provision of this Lease
determined by a Court to be invalid, void, or illegal such shall in no way
impair or invalidate any other provision of this Lease and such other provisions
shall remain in full force and effect. This Lease and the exhibits and any rider
attached hereto constitute the entire agreement between Landlord and Tenant with
respect to the subject matter hereof, and no prior agreement, understanding or
representation pertaining to any such matter shall be effective for any purpose.
This Lease may not be amended, modified or supplemented except by an agreement
in writing signed by the parties hereto or their successors in interest. This
Lease shall be governed by California law.
(b) Attorney's Fees. If Tenant or Landlord shall bring any action for
any relief against the other, declaratory or otherwise, arising out of or under
this Lease, including any suit by Landlord for the recovery of rent or
possession of the Premises, the losing party shall pay the successful party a
reasonable sum for attorneys' fees in such suit and such attorneys fees shall be
deemed to have accrued on the commencement of such action and shall be paid
whether or not such action is prosecuted to judgment. Should Landlord, without
fault on Landlord's part, be made a party to any litigation instituted by Tenant
or by any third party against Tenant, or by or against any person holding under
or using the Premises by license of Tenant, or for the foreclosure of any lien
for labor or material furnished to or for Tenant or any such other person or
otherwise arising out of
/s/ (Tenant's Name)
21
or resulting, from any act or transaction of Tenant or of any such person,
Tenant agrees to hold Landlord harmless from any judgment rendered against
Landlord or the Premises or any part thereof and from all costs and expenses,
including reasonable attorneys, fees incurred by Landlord in or in connection
with such litigation.
(c) Time of Essence. Each of Tenant's covenants herein is a condition
and time is of the essence with respect to the performance of every provision of
this Lease and the strict performance of each shall be a condition precedent to
Tenant's right to remain in possession of the Premises or to have this Lease
continue in effect.
(d) Headings. The paragraph and subparagraph headings contained in
this Lease are for convenience only and do not limit or amplify any term or
provision hereof. The terms "Landlord" and "Tenant" shall include the plural as
well as the singular, the neuter shall include the masculine and feminine
genders and the obligations herein imposed upon Tenant shall be joint and
several as to each of the persons, firms, or corporations of which Tenant may be
composed. If more than one person executes this Lease as Tenant the art of or
notice from or notice or refund to, or the signature of, any one or more of
them, with respect to the tenancy or this Lease, shall be binding upon each of
them, with the same force and effect as if each of them had so acted or so given
or received such notice or refund or so signed.
(e) No Options. The submission of this Lease to Tenant for
examination or execution by Tenant does not constitute an option or offer to
lease the Premises upon the terms and conditions contained herein or a
reservation of the Premises for Tenant. This Lease shall only become effective
upon the execution hereof by Landlord and Tenant and delivery of a fully
executed counterpart hereof to Tenant.
(f) Use of Building Name; Improvements. Tenant shall not use the
name, picture or representation of the Building, or words to that effect, in
connection with any business carried on in the Premises or otherwise (except as
Tenant's address) without the prior written consent of Landlord. If Landlord
undertakes any additional improvements on the Real Property including but not
limited to new construction or renovation or additions to the existing
improvements, Landlord shall not be liable to Tenant for any noise, dust,
vibration or interference with access to the Premises or disruption in Tenant's
business caused thereby and rental hereunder shall under no circumstances be
abated,
(g) Quiet Possession Upon Tenant's paying the rent additional rent
and other sums provided hereunder and observing and performing all of the
covenants and provisions on Tenant's part to be observed and performed
hereunder, Tenant shall have quiet possession of the Premises for the entire
term hereof, subject to all of the provisions of this Lease.
(h) Substitute Premises. Landlord shall have the right at any time
during the term hereof, upon giving Tenant not less than sixty (60) days prior
notice, to furnish Tenant with space elsewhere in the Building of approximately
the same size as the Premises and remove and place Tenant in such space, with
Landlord to pay all verified and previously approved costs and expenses incurred
as a result of such removal Tenant, exclusive of the cost of replacing Tenant's
existing supply of stationery and business cards. If Landlord moves Tenant to
new space, this Lease shall remain in full force and effect and shall be deemed
applicable to such new space and such new space shall thereafter be deemed to be
the "Premises" as though Land lord and Tenant had entered into an express
written amendment of this Lease with respect thereto.
(i) Successors and Assigns. Subject to the provisions of Paragraph 16
hereof, this Lease shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, personal representatives, Successors
and assigns.
(j) Notices. Any notice required or permitted to be given hereunder
shall be in writing and may be given by personal delivery or sent by registered
or certified mail, return receipt
/s/ (Tenant's Name)
22
requested, addressed to Tenant at the Premises or to Landlord at the address of
the place from time to time established for the payment of rent and which shall
be effective upon proof of delivery. Either party may by notice to the other
specify a different address for notice purposes except that, upon Tenant's
taking possession of the Premises, the Premises shall constitute Tenant's
address for notice purposes. A copy of all notices to be given to Landlord
hereunder shall be concurrently transmitted by Tenant to such party hereafter
designated by notice from Landlord to Tenant.
(k) Changes in Building, Facilities Name. Landlord may adopt any name
for the Building and Landlord reserves the right to change the name or address
of the Building at any time. Landlord reserves the right, at any time, without
incurring any liability to Tenant therefor, to make such changes in or to the
Building and the fixtures and equipment thereof, as well as in or to the street
entrances, halls, passages, elevators, stairways and other improvements thereof,
as it may deem necessary or desirable.
(l) Authority. If Lessee is a corporation, trust, or general or
limited partnership, each individual executing this Lease on behalf of such
entity represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of said entity. If Tenant is a corporation, trust
or partnership, Tenant shall, within thirty (30) days after execution of this
Lease, deliver to Landlord evidence of such authority satisfactory to Landlord.
If Tenant fails to comply with the requirements set forth in this subparagraph
(1), then each individual executing this Lease shall be personally liable for
all of Tenant's obligations in this Lease.
(m) Demolition. If Landlord intends to voluntarily demolish the
Building of which the Premises are a part, upon one hundred eighty (180) days
prior written notice from Landlord to Tenant, Landlord, without imposing on
Landlord any liability or obligation whatsoever, (including any loss, claim or
damage sustained by Tenant in connection with the installation of any Tenant
improvements, decorations, communication systems and any other facilities
designed and used in the business and activities conducted at the Premises) may
terminate this Lease and all of Tenant's right, title and interest hereunder and
the leasehold estate and benefits created hereby. Such termination shall be
effective on the last day of the calendar which is one hundred eighty (180) days
after the date of said notice to terminate. Tenant shall (1) until said
termination date, continue to promptly and completely perform all of its
covenants and agreements contained herein, and (2) upon said termination date
surrender the Premises to Landlord upon the terms and conditions set forth in
Paragraph 28 hereof.
(n) Interest. Unpaid installments of rent or other sums shall bear
interest from the date due at the then the maximum interest rate allowed by law
for a business obligation.
(o) Waiver of Relief Against Forfeiture. Tenant does hereby waive any
and all rights under Code of Civil Procedure Section 1179, or otherwise to
obtain relief against forfeiture of this Lease.
(p) Landlord Default. Landlord shall not be deemed to be in default
in the performance of any obligation required by it under this Lease, or under
any Addenda executed in connection herewith, unless and until it has failed to
perform such obligation within thirty (30) days after receipt of written notice
by Tenant to Landlord, specifying wherein Landlord has failed to perform
obligation; provided, however, that if the nature of Landlord's obligation is
such that more than thirty (30) days are required for its performance, then
Landlord shall not be deemed to be in default if it shall commence such
performance within such thirty (30) day period and thereafter
/s/ (Tenant's Name)
Initials
23
diligently prosecute to completion. In no event shall Tenant be entitled to the
remedy of constructive eviction in the event Landlord is in default in the
performance of any obligation required by Landlord under this Lease, and Tenant
does hereby waive said remedy of constructive eviction in such event.
(q) Presumptions. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party drafting the
document. It shall be construed neither for nor against Landlord or Tenant, but
shall be given reasonable interpretation in accordance with the plain meaning of
its terms and the intent of the parties.
(r) Rent Defined. All monetary obligations due from Tenant to
Landlord pursuant to the terms of this Lease shall be deemed to be rent.
(s) Exhibits. All exhibits and any riders annexed to this Lease are
incorporated herein by this reference.
(t) Guaranty. If there is a guarantor of this Lease, the
effectiveness of this Lease is conditioned upon the execution and delivery to
Landlord of the guaranty attached hereto.
(u) Landlord/Trustee. The Landlord under this Lease is Xxxxxxx
Xxxxxxx Zehenni solely in his capacity as trustee under the Xxxxxxx Xxxxxxx
Zehenni Trust created by Declaration of Trust Dated December 8, 1982, as
amended, and doing business as 8730 Sunset Towers. This Lease is executed and
delivered by said trustee no in his own right but solely in the exercise of the
powers conferred up on him as such trust. In no event shall such trustee have
any personal responsibility or liability for the obligations or liabilities of
Landlord arising -under or in connection with this Lease.
"LANDLORD"
XXXXXXX X. ZEKENNI AS TRUSTEE UNDER THE
XXXXXXX XXXXXXX ZEHENNI TRUST CREATED UNDER
DECLARATION OF TRUST DATED DECEMBER 8, 1982
d/b/a 8730 SUNSET TOWERS
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, solely in his capacity as trustee
"TENANT"
1ST MIRACLE GROUP, INC.
a Canadian corporation
By /s/Xxxxxxx Xxxxxxx
Print Name: Xxxxxxx Xxxxxxx
Its: Chief Executive Officer
By:___________________
/s/( Tenants Name)
24
EXHIBIT A
[FLOOR PLAN]
SUNSET TOWERS
0000 XXXXXX XXXX, 0XX XXX.
XXX XXXXXXX. XX
EXT'G FLOOR PLAN
SC: N.T.S. 5/25/99
/s/ (Tenant's Name)
Initials
25
EXHIBIT B
THIS TENANT WORK LETTER shall set forth the terms and conditions relating to
the construction of the tenant improvements in the Premises. This Tenant Work
Letter is essentially organized chronologically and addresses the issues of the
construction of the Premises, in sequence, as such issues will arise during the
actual construction of the Premises. All references in this Tenant Work Letter
to Articles or Sections of "this Lease" shall mean the relevant portion of the
Office Lease to which this Tenant Work Letter is attached as Exhibit "B" and of
which this Tenant Work Letter forms a part, and all references in this Tenant
Work Letter to Sections of "this Tenant Work Letter" shall mean the relevant
portion of Sections 1 through 6 of this Tenant Work Letter.
Section I
CONSTRUCTION DRAWINGS FOR THE PREMISES
Subject to the Maximum Allowance, Landlord shall construct the improvements in
the Premises (the "Tenant Improvements') pursuant to the space plan and
improvement specifications (the "Approved Improvement Plan") agreed to between
Landlord and Tenant, which agreement both parties shall use their best efforts
to reach within fourteen (14) days following the mutual execution and delivery
of this Lease. Tenant shall make no changes or modifications to the Approved
Improvement Plan without the prior written consent of Landlord, which consent
may be withheld in Landlord's sole discretion if such change or modification
would directly or indirectly delay the "Substantial Completion", as that term is
defined in Section 5.1 of this Tenant Work Letter, of the Premises or increase
the cost of designing or constructing the Tenant Improvements. Notwithstanding
that Landlord may have reviewed and approved the Approved Improvement Plan,
Landlord shall have no liability whatsoever in connection therewith and shall
not be responsible for any omissions or errors contained in the Approved
Improvement Plan, and Tenant's waiver and indemnity set forth in this Lease
shall specifically apply to the Approved Improvement Plan. In no event shall
Landlord be required to incur costs and expenses in excess of One Hundred
Eighteen Thousand Five Hundred and Forty Dollars ($118,540.00) (the "Maximum
Allowance") in performing the Tenant Improvements.
Section 2
OVER-ALLOWANCE AMOUNT
In the event that it is reasonably determined by Landlord that the costs of the
Tenant Improvements will exceed the Maximum Allowance, or, after the agreement
of the Approved Improvement Plan, Tenant requests any changes thereto which
result in any costs in excess of the Maximum Allowance, all such excess costs
shall be estimated by Landlord and paid by Tenant to Landlord immediately upon
Landlord's request (the "Over Allowance Amount'). The Over-Allowance Amount
shall be disbursed by Landlord prior to the disbursement of any portion of
Landlord's contribution to the construction of the Tenant Improvements.
/s/ (Tenant's Name)
Initial
26
Section 3
CONTRACTOR'S WARRANTIES AND GUARANTIES
Landlord hereby agrees to assign to Tenant to the extent assignable and to the
extent reasonably necessary to allow Tenant to pursue the particular claim
against the Contractor, all warranties and guaranties by the contractor who
constructs the Tenant Improvements (the "Contractor") relating to the Tenant
Improvements, and Tenant hereby waives all claims against Landlord relating to,
or arising out of the construction of, the Tenant Improvements.
Section 4
TENANT'S COVENANTS
Tenant hereby indemnifies Landlord for any loss, claims, damages or delays
arising from the actions of Tenant's space planner/architect on the Premises or
in the Building. In addition, immediately after the Substantial Completion of
the Premises, Tenant shall have prepared and delivered to the Building a copy of
the record set of plans and specifications (including all working drawings) for
the Tenant Improvements.
Section 5
COMPLETION OF THE TENANT IMPROVEMENTS; COMMENCEMENT DATE
(a) Ready For Occupancy The Premises shall be deemed "Ready for
Occupancy" upon the Substantial Completion of the Premises. For purposes of this
Lease, "Substantial Completion" of the Premises shall occur upon the completion
of construction of the Tenant Improvements in the Premises pursuant to the
Approved Improvement Plan, with the exception of any punch list items and any
tenant fixtures, work-stations, built-in furniture, or equipment to be installed
by Tenant or under the supervision of Contractor.
(b) Delay Of The Substantial Completion Of The Premises. Except as
provided in this Section 5(b), the Commencement Date shall occur as set forth in
the Lease and Section 5(a), above. If there shall be a delay or there are delays
in the Substantial Completion of the Premises or in the occurrence of any of the
other conditions precedent to the Commencement Date, as set forth in the Lease,
as a direct, indirect, partial, or total result of:
(i) Tenant's failure to timely approve any matter requiring Tenant's
approval;
(ii) A breach by Tenant of the terms of this Tenant Work Letter or
the Lease;
(iii) Tenant's request for changes in the Approved Improvement Plan;
/s/ (Tenant's Name)
Initial
27
(iv) changes in any of the Approved Improvement Plan because the same
do not comply with applicable laws;
(v) Tenant's requirement for materials, components, finishes or
improvements which are not available in a commercially reasonable time given the
anticipated date of Substantial Completion of the Premises, as set forth in the
Lease, or which are different from, or not included in, Landlord's standard
improvement package items for the Building;
(vi) Changes to the base, shell and core work of the Building
required by the Approved Improvement Plan; or
(vii) Any other acts or omissions of Tenant, or its agents, or
employees; then, not withstanding anything to the contrary set forth in the
Lease or this Tenant Work Letter and regardless of the actual date of the
Substantial Completion of the Premises, the Commencement Date shall be deemed to
be the date the Commencement Date would have occurred if no Tenant delay or
delays, as set forth above, had occurred.
Section 6
MISCELLANEOUS
(a) Tenant's Entry Into The Premise Prior To Substantial Completion.
Provided that Tenant and its agents do not interfere with Contractor's work in
the Building and the Premises, Contractor shall allow Tenant access to the
Premises prior to the Substantial Completion of the Premises for the purpose of
Tenant installing over standard equipment or fixtures (including Tenant's data
and telephone equipment) in the Premises. Prior to Tenant's entry into the
Premises as permitted by the terms of this Section 6(a), Tenant shall submit a
schedule to Landlord and Contractor, for their approval, which schedule shall
detail the timing and purpose of Tenant's entry. Tenant shall hold Landlord
harmless from and indemnify, protect and defend Landlord against any loss or
damage to the Building or Premises and against injury to any persons caused by
Tenant's actions pursuant to this Section 6.1.
(b) Freight Elevators. Landlord shall, consistent with its
obligations to other tenants of the Building, make the freight elevator
reasonably available to Tenant in connection with initial decorating,
furnishing and moving into the Premises.
(c) Tenant's Representative. Tenant has designated Xxxxxxx Xxxxxxx as
its sole representative with respect to the matters set forth in this Tenant
Work Letter, who, until further notice to Landlord, shall have full authority
and responsibility to act on behalf of the Tenant as required in this Tenant
Work Letter.
(d) Landlord's Representative. Landlord has designated G. Xxxx Xxxxx
as its sole representative with respect to the matters set forth in this Tenant
Work Letter, who, until further
/s/ (Tenant's Name)
28
notice to Tenant, shall have full authority and responsibility to act on behalf
of the Landlord as required in this Tenant Work Letter.
(e) Time Of The Essence In This Tenant Work Letter. Unless otherwise
indicated, all references herein to a "number of days" shall mean and refer to
calendar days. In all instances where Tenant is required to approve or deliver
an item, if no written notice of approval is given or the item is not delivered
within the stated time period, at Landlord's sole option, at the end of such
period the item shall automatically be deemed approved or delivered by Tenant
and the next succeeding time period shall commence.
(f) Tenant's Lease Default. Notwithstanding any provision to the
contrary contained in this Lease, if an event of default as described in the
Lease, or a default by Tenant under this Tenant Work Letter, has occurred at any
time on or before the Substantial Completion of the Premises, then (i) in
addition to all other rights and remedies granted to Landlord pursuant to the
Lease, Landlord shall have the right to Cause Contractor to cease the
construction of the Premises (in which case, Tenant shall be responsible for any
delay in the Substantial Completion of the Premises caused by such work stoppage
as set forth in Section 5 of this Tenant Work Letter), and (ii) all other
obligations of Landlord under the terms of this Tenant Work Letter shall be
forgiven until such time as such default is cured pursuant to the terms of the
Lease.
/s/ (Tenant's Name)
Initial
29
ACCEPTANCE AND STATEMENT OF PREMISES AND TERM
TO: ____________________ Date:_______________________
(Tenant
RE: Term/Acceptance of Premises
In accordance with Paragraph 2 of your Lease, please acknowledge your
acceptance of possession of your demised Premises and your agreement that the
Commencement Date of the Lease is ___________________and the termination date of
the Lease is In accordance with your Lease that the Basic Rent, as set forth in
Paragraph U. of your Lease, is $ ____________________.
Tenant hereby agrees to forward all necessary and normal day-to-day
Lease requirements, such as rental and other charges, Insurance Certificates,
property tax payments, etc. to the following, unless otherwise designated by
Landlord.
8730 Sunset Towers
0000 Xxxxxx Xxxx., Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Very truly yours,
By:_____________________
Landlord / Agent
Tenant hereby agrees with the dates and amounts set forth above and
further acknowledges its acceptance of possession of the demised Premises.
TENANT
By:___________________
Date:_________________
Date:_________________ Date____________________
/s/ (Tenant's Name)
Initial
30
ADDENDUM TO LEASE
THIS ADDENDUM TO LEASE (Addendum') is made and entered into as of
June 4, 1999, by and between 8730 Sunset Towers ("Landlord") and 1st Miracle
Group. Inc., a Canadian Corporation ("Tenant").
RECITALS
A. 8730 Sunset Towers ("Original Landlord") and 1st Miracle Group,
Inc. ("Tenant") entered into that certain Standard Form Office Lease, dated as
of May 24, 1999 (the "Original Lease) whereby Original Landlord leased to Tenant
and Tenant leased from Original Landlord certain office space located in that
certain Building located and addressed at 0000 Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx,
Xxxxxxxxxx (the "Building"). The Original Lease as amended by this Addendum may
be referred to herein as the "Lease."
B. By this Addendum, Landlord and Tenant desire to modify the Lease
as provided herein;
C. Unless otherwise defined herein, capitalized terms as used herein
shall have the same meanings as given thereto in the Original Lease.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows;
AGREEMENT
1. Security Deposit. Provided Tenant is not then in default of the
Lease and has not been in any monetary default of the Lease at any time during
the term of the Lease, Landlord shall refund a portion of the Ninety Thousand
Dollars ($90,000.00) Security Deposit then held by the Landlord ("Refund") in an
amount equal to Fifteen Thousand Dollars ($15,000.00) such that the amount of
the Security Deposit held by Landlord for the balance of the lease term and any
extensions thereof shall be Seventy Five Thousand Dollars ($75,000.00). Tenant
shall notify Landlord in writing that it is in compliance with the Lease as of
the date of such notice and request the Refund within thirty (30) days from the
commencement of the thirtieth (30th) month of the initial lease term. In the
event that Tenant shall become in default of any provision of the Lease
subsequent to such Refund, Tenant shall immediately replenish such Refund upon
Landlord's notice of such default.
This Security Deposit Refund shall be personal to 1st Miracle Group,
Inc. (the "Original Tenant") and may not be exercised if Original Tenant
subleases more than fifty percent (50%) of the Premises or makes an assignment
of the Lease and may only be exercised by Tenant if Original Tenant occupies the
entire Premises.
2. Consumer Price Index Adjustment. Notwithstanding Paragraph 4(d),
the Consumer Price Index, or other index as provided for therein, shall not
exceed four percent (4%) in calculating the basic rent adjustment pursuant to
the provisions for such adjustment. The Basic Rent shall not be adjusted under
this Paragraph until January 1, 2001, ("Annual Adjustment Date').
3. Substitute Premises, In the event that Landlord exercises its
right to relocate Tenant as provided for in Paragraph 30(h) of the Lease, the
new premises ("Substitute Premises") shall be substantially comparable to the
original premises. Subject to the terms and conditions of the Lease, Landlord
shall pay all reasonable moving expenses of the Tenant in connection with such
relocation including reasonable expenses for new stationary. Tenant shall
cooperate with Landlord to facilitate such move. Tenant's failure to cooperate
with Landlord shall relieve Landlord of any responsibility to Tenant in
connection with, or as a result of, such substitution of premises.
4. Temporary Space. Landlord shall make available to Tenant approximately
1,500 rentable square feet of temporary office space located in Suite 290
("Temporary Premises") in the Building under the terms and conditions of the
Original Lease except as otherwise provided herein. The Temporary Premises shall
be delivered to Tenant in its absolute as-is condition at a base rental rate
equal to $2.00 per rentable square foot. The term shall commence at a date
mutually agreeable to Landlord and Tenant evidenced by an Acceptance and
Statement of Premises and Term form properly executed, and continue until Suite
600 (the "Premises") is delivered to Tenant pursuant to the Lease, or the Lease
is terminated prior to such delivery as provided for under the Lease.
5. Defaults. Tenant hereby represents and warrants to Landlord that, as of
the date of this Addendum, Tenant is in full compliance with all terms,
convenants and conditions of the Lease and that there are no breaches or
defaults under the Lease by Landlord or Tenant, and that Tenant knows of no
events or circumstances which, given the passage of time, would constitute a
default under the Lease by either Landlord of Tenant.
6. Signing Authority. Concurrently with Tenant's execution of this
Addendum, Tenant shall provide to Landlord a copy of :(a) if Tenant is a
corporation, such resolution of Board of Directors authorizing the execution of
this Addendum on behalf of such corporation, which copy of resolution shall be
duly certified by the secretary or an assistant secretary of the corporation to
be a true copy of a resolution duly adopted by the Board of Directors of said
corporation in a form reasonably acceptable to Landlord; (b) if Tenant is a
partnership, a copy of the provisions of the partnership agreement granting the
requisite authority to each individual executing this Addendum on behalf of said
partnership; and (c) if Tenant is a limited liability company, a copy of the
provisions of its operating agreement granting the requisite authority to each
individual executing this Addendum on behalf of said limited liability company.
In the event Tenant fails to comply with the requirements set forth in this
Section 6, then each individual executing this Addendum shall be personally
liable for all of Tenant's obligations in the Lease (as amended by this
Amendment.)
7. No Further Modification. Except as set forth in this Addendum, all of
the terms and provisions of the Lease shall apply and shall remain unmodified
and in full force and effect. Effective as of the date hereof, all references to
the "Lease" shall refer to the Lease as amended by this Addendum.
IN WITNESS WHEREOF, this Addendum has been executed as of the day and year
first above written.
8730 Sunset Towers ("LANDLORD") 1st Miracle Group, Inc. ("TENANT")
By: /s/ By /s/
A. Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
------------------------------ ------------------------
Its: Owner Chairman & CEO
Xxxxxxx Xxxxxxx
Its: ____________________________
8730 Sunset Towers
(Tenant)
AMENDMENT TO LEASE
8730 Sunset Towers
THIS FIRST AMENDMENT TO LEASE ("First Amendment") is made and entered
into as of the 1st day of October, 1999 by and between 8730 SUNSET TOWERS
("Landlord") and IST MIRACLE GROUP, INC. ("Tenant')
RECITALS
A. 8730 Sunset Towers ("Original Landlord') and 1ST Miracle Group, Inc.
("Tenant") entered into that certain Standard Form Office Lease dated as of May
24, 1999 (the "Original Lease");
B. By this First Amendment, Landlord and Tenant desire to substitute
Premises and to otherwise modify the Lease terms and conditions as provided
herein;
C. Unless otherwise defined herein, capitalized terms as used herein
shall have the same meanings as given thereto in the Original Lease.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
AGREEMENT
1. The Premises. Landlord and Tenant hereby agree that pursuant to the
Lease, Landlord currently leases to Tenant and Tenant currently leases from
Landlord that certain office space in the Building containing approximately
6,219 rentable square feet located on the Sixth (6th) floor of the Building and
known as Suite 600 ( the "Premises') as outlined on Exhibit "A" to the Original
Lease.
(a) Substitute Premises. Tenant desires to relocate its Premises from
Xxxxx 000 Xxxx xx Xxxxx 000 Xxxx commonly referred to as Penthouse East
containing approximately 6,090 rentable square feet located on the sixth (6th)
floor of the east tower as outlined on Exhibit "A" of this First Amendment. The
revised Premises shall be Suite 600 East located in the East Tower on the sixth
(6th) floor.
(b) Proportionate Share. Tenant's proportionate share for the
Substitute Premises shall be 8.5%.
2. Monthly Basic Rent. The monthly basic rent for the Substitute Premises
shall be Fifteen Thousand Eight Hundred Thirty Four Dollars and zero cents
(S15,834.00) being $2.60 per rentable square foot.
3. Lease Commencement Date. The Lease shall commence the earlier of, (a)
the date Tenant occupies all or a portion of the Substitute Premises (other than
in connection with construction of same), or (b) the first Monday after date
that the Substitute Premises are Substantially Ready for Occupancy which is
anticipated to be November 1, 1999.
4, Improvements to the Premises. Landlord shall deliver and Tenant shall
accept Premises in its "as-is" condition except that Landlord, shall (i) install
carpet (including pad and base), (ii) paint the interior partitions, (iii)
replace ceiling tiles as necessary, (iv) patch and repair as necessary, and (v)
provide adequate electrical (including phone and data) outlets with all work to
performed in a workmanlike manner according to building standards in quantities
and qualities of material and labor. Tenant shall select finishes and colors as
appropriate and necessary from building standard materials. In no event shall
Landlord's contribution to the tenant improvements exceed $10.00 per usable
square foot including any ancillary, cost, (e.g.,)
/s/ 1st Miracle Group, Inc.
architectural and engineering fees, permits or any other costs deemed ancillary
to the improvements). Any cost or any item not considered to be building
standard shall be at Tenant's expense.
Notwithstanding anything in the Lease to the contrary, Landlord shall be
released from all of its obligations under the Original Lease pursuant to
Exhibit B ("Tenant Work Letter") which is void and no longer has legal force or
binding effect. This First Amendment sets forth Landlord's revised obligations
to improve Suite 600 East (the Substitute Premises) as limited under this
paragraph.
(a) Ancillary Costs. Tenant shall reimburse Landlord for: 1) reasonable
relocation expenses for the tenant now occupying a portion of Suite 600 East,
the Substitute Premises, and 2) architectural fees in connection with Suite 600,
the Original Premises, with those cost being $5,366.19.
5. Notice of Lease Term Dates. Tenant agrees to execute and deliver a
commencement letter in a form substantially similar to that attached hereto as
Exhibit "B" concurrently with Tenant's execution and delivery of this First
Amendment.
6. Defaults. Tenant hereby represents and warrants to Landlord that, as of
the date of this First Amendment, Tenant is in full compliance with all terms,
covenants and conditions of the Lease and that there are no breaches or defaults
under the Lease by Landlord or Tenant, and that Tenant knows of no events or
circumstances which, given the passage of time, would constitute a default under
the Lease by either Landlord or Tenant.
9. Signing Authority. Concurrently with Tenant's execution of this First
Amendment, Tenant shall provide to Landlord a copy of: (a) if Tenant is a
corporation, such resolution of the Board of Directors authorizing the execution
of this First Amendment on behalf of such corporation, which copy of resolution
shall be duly certified by the secretary or an assistant secretary of the
corporation to be a true copy of a resolution duly adopted by the Board of
Directors of said corporation and shall be in the form of Exhibit "C" or in some
other form reasonably acceptable to Landlord; (b) if Tenant is a partnership, a
copy of the provisions of the partnership agreement granting the requisite
authority to each individual executing this First Amendment on behalf of
said partnership; and (c) if Tenant is a limited liability company, a copy of
the provisions of its operating agreement granting the requisite authority to
each individual executing this First Amendment on behalf of said limited
liability company. In the event Tenant fails to comply with the requirements set
forth in this Section 9, then each individual executing this First Amendment
shall be personally liable for all of Tenant's obligations in the Lease (as
amended by this Amendment.)
10. No Further Modification. Except as set forth in this First Amendment,
all of the terms and provisions of the Lease shall apply and shall remain
unmodified and in full force and effect. Effective as of the date hereof, all
references to the "Lease" shall refer to the Lease as amended by this First
Amendment.
IN WITNESS WHEREOF, this First Amendment has been executed as of the day
and year first above as written.
8730 Sunset Towers ("LANDLORD") 1st Miracle Group, Inc. ("TENANT")
By: /s/ By /s/
T. Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
------------------------------ ------------------------
Its: Owner Chairman & CEO
Xxxxxxx Xxxxxxx
Its: ____________________________
1ST Miracle Group, Inc.
ACKNOWLEDGMENT OF GUARANTOR
The undersigned, Guarantor under the certain Guaranty of Lease
dated________ (the "Guaranty"), hereby consents to the foregoing ________
Amendment and further acknowledges that the Guaranty remains in full force and
effect with regard to the Lease, as amended by the foregoing
__________Amendment..
("TENANT")
Dated: ____________________,1998.
By:__________________________
Name: _______________________
Its:__________________________
By:__________________________
Name: _______________________
Its:__________________________
/s/ 1st Miracle Group, Inc
EXHIBIT "A"
Floor Plan
XXXXX XXXX & ASSOCIATES
ARCHITECTS, ALA.
ARCHITECTURE - PLANNING - INTERIORS
00000 XXXXXXX XXXX.
XXXXX #000
XXXXXXXX XXXXX, XXXXXXXXXX 00000
(000) 000-0000/FAX
(000) 000-0000
/s/ 1st Miracle Group, Inc
EXHIBIT "A-l"
Tenant Improvement Specifications
Subject to Paragraph 4 of this First Amendment, Landlord shall
install the materials described below within the Premises as available. Tenant
acknowledges that it selected the following materials for installation within
the Premises. In the event that materials are not available to be installed in a
timely manner, Tenant shall select an alternative material from building
standards.
Flooring
Carpet: Philadelphia 68430 Eternal Blue
Finesse III
Top Set Base: Xxxxx 323P Bluebonnet
Wall Finishes
Paint: Xxxx Xxxxxxx XX 836 Swiss Coffee
Egg Shell Finish
Acoustical Ceiling
To match existing within the lobby area.
Any finishes other than those set out herein shall be at Tenant's
expense.
ACKNOWLEDGED AND AGREED:
I ST Miracle Group, Inc. ("Tenant")
By: /s/____________________
Its: Chairman
Date: October 6, 1999
/s/ 1st Miracle Group, Inc
EXHIBIT "B"
NOTICE OF LEASE TERM DATES
TO: 1st Miracle Group, Inc. Date: October 4, 1999
0000 Xxxxxx Xxxxxxxxx
Xxxxx 000 Xxxx
Xxxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx,
RE: First Amendment dated October 1, 1999, between 88730 Sunset
Towers ('Landlord) and 1ST Miracle Group Inc. ("Tenant")
concerning Suite 600 East, located at 0000 Xxxxxx Xxxxxxxxx,
Xxxx XxX00xxx, XX- 00000.
Dear Xx. Xxxxxxx:
In accordance with the First Amendment to the Original
Lease, Landlord wishes to advise and/or confirm the following:
1. That the Tenant is in possession of the Premises and
acknowledges that under the provisions of the First Amendment,
the Term of Tenant's Lease of the Premises commenced as
__________,1999 for a term of five (5) years ending on __________.
2. That in accordance with the First Amendment, Monthly Basic Rent
for the Term commenced to accrue on__________, 1999 in the amount of
Fifteen Thousand Eight Hundred Thirty Four Dollars and Zero Cents
($15,834.00),.
3. The approximate rentable square feet within the Premises is 6,090
RSF.
ACKNOWLEDGED AND AGREED:
TENANT: 1ST Miracle Group
By: /s/___________________
Its: Chairman / CEO_____
Date: October 9, 1999
/s/ 1st Miracle Group, Inc
EXHIBIT "C"
CERTIFIED COPY OF
BOARD OF DIRECTORS RESOLUTIONS
OF
1ST Miracle Group, Inc.
The undersigned, being the duly elected Corporate Secretary of 1ST
Miracle Group Inc., a Canadian corporation ("Corporation"), hereby certifies
that the following is a true, full and correct copy of the resolutions adopted
by the Corporation by unanimous written consent in lieu of a special meeting of
its Board of Directors, And that said resolutions have not been amended or
revoked as of the date hereof
RESOLVED, that the Corporation is hereby authorized to execute,
deliver and fully perform that certain document entitled First Amendment to
Lease ("Amendment") by and between the Corporation and 8730 Sunset Towers for
the lease of space at 0000 Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx, XX 00000.
RESOLVED FURTHER, that the Corporation is hereby authorized and
directed to make, execute and deliver any and all consents, certificates,
documents, instruments, amendments, confirmations, guarantees, papers or
writings as may be required in connection with or in furtherance of the
Amendment (collectively with the Amendment, the "Document") or any transactions
described therein, and to do any and all other acts necessary or desirable to
effectuate the foregoing resolution.
RESOLVED FURTHER, that any of the following officers acting alone or
together:_____________as ________________;________________as
_____________;or_________________as_______________is/are authorized to execute
and deliver the Documents on behalf of the Corporation, together with any other
documents and/or instruments evidencing or ancillary to the Documents, and in
such forms and on such terms as such officer(s) shall approve, the execution
thereof to be conclusive evidence of' such approval and to execute and deliver
on behalf of the Corporation all documents necessary to effectuate said
transaction in conformance with these resolutions.
Date:______________, 1999. /s/______________
Corporate Secretary
/s/ 1ST Miracle Group, Inc.
