LEASE AGREEMENT
THIS Lease is made and entered into at Newport Beach, California,
this 31st. day of March 1999 by and between TUSTIN BUSINESS
CENTER, L.P., a California Limited Partnership hereinafter
referred to as "Lessor" and TANGIBLE INVESTMENTS OF AMERICA, INC.,
a Pennsylvania Corporation hereinafter referred to as "Lessee",
without regard to number or gender.
1. Leased Premises:
A. Premises: In consideration of the rents herein provided, and on
the terms, provisions and covenants hereof, Lessor hereby leases,
lets and demises to Lessee the following described premises
(referred to in this lease as the "leased promises") more
particularly described in Exhibit "A", attached hereto, located at
00000 Xxxxxx Xxxx., Xxxxx # 000 (approx.1,722 rsf) in the City of
Tustin, County of Orange, California (referred to in this lease as
"the Building").
B. Parking: Throughout the term hereof, Lessee shall have the
right to use for Its employees 5 as available parking spaces in
the parking areas in and about the Building, or in the event the
Building is located in a larder Office Complex (the land,
buildings, common areas and parking areas of which shall be
referred to collectively in this lease as the "Office Complex" then
in and about such Office Complex on the terms and conditions as
may be established by Lessor from time to time during the term of
this lease. Lessor shall have the right, but shall not be under
any obligation, to designate where such parking spaces shall be
located. The parking area(s) referred to herein shall be used on a
non-exclusive basis with other tenants Of the Building, or where
applicable, other tenants of the Office Complex. Parking for
Lessee's invitees shall be available in said parking area(s) on a
non-exclusive, first-come, first-serve basis with invitees of
other tenants of the Building, or where applicable, other tenants
of the Office Complex upon such conditions as Lessor may from time
to time establish during the term hereof.
2. Term: Subject to and upon the conditions set forth herein, the
term of this lease shall commence on the 1st day of May, 1999 and
shall end on the 30th day of April, 2000, unless sooner terminated
as hereinafter provided. Taking of possession by Lessee shall be
conclusively deemed to establish that the leased premises have
been accepted and that the leased premises are in good and
satisfactory condition as of the date possession was so taken by
Lessee.
3. Possession: If Lessor, for any reason whatsoever, cannot
deliver possession of the leased premises to Lessee at the
commencement of the term hereof, this lease shall not be void or
voidable, nor shall Lessor be liable to Lessee for any loss or
damage resulting therefrom, nor shall the expiration date of the
above term be in any way extended, but in that event, all rent
shall be abated during the period between the commencement of the
term as provided for in Paragraph 2 hereinabove and the time when
Lessor delivers possession. In the event that Lessor shall permit
Lessee to occupy the leased premises prior to the commencement
date of the term, such occupancy shall be subject to all the
provisions of this lease. Such early possession shall not advance
the termination date hereinabove provided.
4. Lease Year: A lease year shall be considered to begin on the
first day of the first full calendar month following commencement
of the term hereof, or if the term shall commence on the first day
of the month, on such date and on each subsequent anniversary date
of the beginning of the first lease year.
5. Rent:
A. Base Rent: Lessee agrees to pay a base rental for the
leased premises during the lease term in the amount of Twenty Four
Thousand, Seven Hundred Ninety Six & 80/100 ($24,796.80), payable
in monthly installments of $ 2,066,40, without deduction, offset,
prior notice or demand, in advance on the first day of the month
to Lessor at the address shown in Paragraph 30 below. Such base
rental shall be subject to annual adjustment as hereinafter
provided in Paragraph 6 below. The first monthly Installment shall
be due and payable on or before the first day of each calendar
month during the term hereof. If the commencement date of the term
hereof is not the first day of a month, a prorated monthly
installment shall be paid for the tractional month during which
the lease commences and/or terminates. In addition to any rental
payable hereunder, Lessee shall pay to Lessor his prorated share
of real property taxes as set forth in Paragraph 8 below, and any
adjustments to the base rental as set forth in Paragraph 6 below.
B. Prepaid Rent: Concurrently with Lessee's execution of
this lease. Lessee shall pay to Lessor the sum of $2,066.40 to be
applied against rent for the first months of the lease term.
C. Late Charges: Lessee hereby acknowledges that late
payment by Lessee to Lessor of rent or other sums due hereunder
will cause Lessor to incur costs not contemplated by this lease,
the exact amount of which will be extremely difficult to
ascertain. Such costs include, but are not limited to, loss of
discounts offered by vendors for prompt payment of bills,
processing and accounting charges, and late charges which may be
imposed upon Lessor by terms of any ground lease (wherein the
Lessor has leased the land on which the Building is situated) or
mortgage or trust deed covering the leased premises and the
Building. Accordingly, if any installment of rent or any sum due
from Lessee shall not be received by Lessor or Lessor's designee
within five (5) days after said amount is due, then Lessee shall
pay to Lessor a late charge equal to the maximum amount permitted
by law (or in the absence of any governing law, ten percent (10%)
of such overdue amount), plus any attorneys' fees incurred by
Lessor by reason of Lessee's failure to pay rent and/or other
charges when due hereunder. The parties hereby agree that such
late charges represent a fair and reasonable estimate of the cost
that Lessor will incur by reason of the late payment by Lessee.
Acceptance of such late charges by the Lessor shall in no event
constitute a waiver of Lessee's default with respect to such
overdue amount, nor prevent Lessor from exercising any of the
other rights and remedies granted hereunder.
6. Rent Adjustment: Consumer Price Index: The minimum monthly rent
and any other fixed charges shall be adjusted during the term of
this lease effective with the first day of the second (2nd) lease
year and on the first day of each lease year thereafter throughout
the lease term (any lease year other than the first lease year
being referred to herein as a "succeeding lease year" and being
defined as hereinafter provided). Any adjustment shall reflect the
percentage increase, If any, in the cost of living as shown in the
Consumer Price Index For Urban Wage Earners and Clerical Workers.
Los Angeles-Long Beach-Anaheim, California, all items (1967=100),
as published by the U.S. Department of Labor, Bureau of Labor
Statistics, on a bi-monthly basis, from the month closes to the
month preceding the commencement of the first lease year ("the
base index month") to the month closest to the month immediately
preceding commencement of a succeeding lease year. By way of
example only, if the Consumer Price Index for a given month is 110
and the Consumer Price Index for such month in the succeeding
lease year is 132, then there would be a 20% increase in the cost
of living and the rental would be adjusted to reflect such
increase in calculating the rental commencing on the first day of
such succeeding lease year. If the Index referred to above is
changed such that the base year (e.g. 1967=100) differs from that
used as of the month closest to the base index month, the Index
shall be converted in accordance with the conversion factor
published by the U.S. Department of Labor, Bureau of Labor
Statistics. If the described Index shall no longer be published,
another Index generally recognized as authoritative shall be
substituted by agreement of the parties. If the parties are
unable to agree within ten (10) days after demand by either party,
the substitute Index shall, in application of either party, be
selected by the Chief Officer of the Los Angeles regional office
of the Bureau of Labor Statistics or its successor.
B. Operating Costs: Lessor and Lessee recognize that during
the term of this lease the operating costs incurred in the
management, operation and maintenance of the Building may increase
in the years following the bas period hereinafter specified.
Accordingly, Lessor and Lessee agree as herein below set forth to
a rent adjustment to accommodate the increases in operating costs
so that any such increases will be borne by lessees of the
Building. The above statement of principle is set forth as a
general guide for the future and particularly as a general guide
to the accountants who may annually audit the increases in
operating costs.
Lessee shall pay to Lessor at the times set forth in this
paragraph Lessee's share of the increases in Lessor's operating
costs for the Building in which the leased premises are located
over the operating costs for calendar year 1999 ('base cost
year'). Lessee's proportionate share of the increase in operating
costs shall be 3.8% percent of the total increase in Lessor's
operating costs. The operating costs for both the base cost year
and succeeding years shall be adjusted to equal Lessor's
reasonable estimate of operating costs had the rentable area of
the Building been occupied.
Lessor's operating costs include, without limitation,
all costs of any kind paid or incurred by Lessor in operating,
cleaning, equipping, protecting, lighting, repairing, replacing,
heating, air conditioning and maintaining the areas of the
Building not leased or available for lease to lessees. The costs
shall include without limitation: (a) utilities, supplies and
janitorial services: maintenance, repair and service contracts:
watchmen, guards and personnel engaged in the management,
operation, maintenance, repair and protection of the Building
together with wages, salaries, payroll burden, taxes, unemployment
and workmen's compensation insurance contributions, social
security contributions and employee and union benefits applicable
thereto. (d) rubbish removal; (e) maintenance and replacement of
landscaping; (f) premiums for public liability and property damage
and fire and extended coverage insurance; (g) all costs and
expenses of contesting by appropriate legal proceedings any matter
concerning operating or managing the Building or the amount or
validity of any property taxes levied against the Building (except
that such costs and expenses shall in no event be included in the
base cost year): (h) depreciation on all personal property,
fixtures and equipment used in the management, operation,
maintenance and repair of the Building; (i) the costs and expenses
(amortized over such reasonable period as Lessor shall determine
together with interest at the rate of 12% per annum on the
unamortized balance of acquisition and installation by Lessor of
any capital improvements after the base cost year that reduce
other operating cost provided however that operating costs shall
not include taxes covered under Paragraph 8 hereinbelow,
depreciation on the Building (except as specified above), costs of
Lessee's improvements, real estate brokers commissions, interest
and capital item (except as specified above). The determination of
operating costs and their allocation shall be in accordance with
generally ccepted accounting principles applied on a consistent basis.
Within ninety (90) days after the close of each calendar year, or
as soon after such ninety (90) day period as practical, Lessor
shall deliver to Lessee a statement of additional rent (the
"Statement") payable under this section for such calendar year
showing the total operating costs for the calendar year just
ended. and Lessee's share of any increase. The failure of Lessor
to deliver the Statement to Lessee during the lime period
hereinabove set forth shall not constitute a waiver by Lessor of
its right to require an increase in rent. Losses shall pay to
Lessor the amount of Lessee's share of the increases within thirty
(30) days after receipt of the Statement. Even though the term has
expired and Lessee has vacated the leased Premises, when the final
determination is made of Lessee's share of such increases for the
calendar year in which this lease terminates, Lessee shall
immediately pay its share of such increases upon demand by Lessor.
Alternatively, in such event, Lessor shall have the right, in its
sole option, to estimate Lessee's share of any increases in
operating costs for the calendar year in which this lease
terminates and the deduct said amount from Lessee's security
deposit at the expiration of the lease term, Lessee hereby waiving
any contrary statutory provisions. Should Lessor's estimate of
such increase in operating costs be greater than Lessee's actual
share as later determined by Lessor, Lessor shall refund to Lessee
such excess, without interest, within sixty (60) days of the final
determination of Lessee's actual share of such increase in
operating costs; however, should Lessee's actual share of such
increase in operating costs be in excess of the amount estimated
by Lessor and deducted from Lessee's security deposit. Lessee
shall pay such excess upon receipt of the Statement in accordance
with the provisions of this paragraph.
Lessor shall keep at the Building where the leased premises are
located full, accurate and separate books of account covering
Lessor's operating Costs and the Statement to Lessee shall
accurately reflect the total of operating costs and Lessee's share
thereof. The books of account shall be retained by Lessor at the
Building in which the leased premises are located for a period of
at least twelve (12) months after the expiration of each calendar
year. Lessee shall be entitled once during each calendar year to
an independent audit of Lessor's books of account to determine
Lessor's operating costs by a certified public accountant to be
designated by Lessee. such audit to take place within sixty (60)
days of Lessee's receipt of the Statement. The audit shall be
limited to the determination of operating costs and shall be
conducted during usual business hours at the Building. The costs
of the audit shall be paid by Lessee unless the audit shows that
Lessor overstated operating costs by more than live percent (5%)
in which case Lessor shall pay all Lessee's costs of the audit. In
no event shall Lessee have the right to withhold payment of such
additional rent as set forth in the Statement pending the results
of such audit or the right to interest on such amounts should such
audit indicate that Lessor overstated operating Costs in any amount.
7. Security Deposit: Concurrently with Lessee's execution of this
lease. Lessee shall deposit with Lessor $2,066.40 to be hold by
Lessor as a security deposit for the faithful performance of all
of the terms, covenants and conditions of this lease to be kept
and performed by Lessee during the term hereof. If Lessee defaults
with respect to any provisions of this lease, including but not
limited to provisions relating to the payment of rent, operating
cost increases and other monetary sums due herewith. Lessor may
use, apply or retain all or any part of the security deposit for
the payment of rent or any other amount which Lessor may spend or
become obligated to spend by reason of Lessee's default or to
compensate Lessor for any other loss or damage which Lessor may
suffer by reason of Lessee's default. It any portion of said
security deposit is so used or applied. Lessee shall, within ten
(10) days after written demand therefor, deposit cash with Lessor
in an amount sufficient to restore the security deposit to its
original amount; Lessee's failure to do so shall be a material
breach of this lease. Lessor shall not be required to keep this
security deposit separate from its general funds and Lessee shall
not be entitled to interest thereon. Lessor's obligations with
respect to the security deposit are those of a debtor and not a
trustee. If Lessee shall fully and faithfully perform every
provision of this lease to be kept by it, the security deposit or
any balance thereof shall be returned to Lessee (or, at Lessor's
demand, to the last assignee of Lessee's interest hereunder)
within the following time periods after expiration or earlier
termination of the lease term: (a) when Lessor has no claims
against the security deposit or where the claim is only for
defaults by Lessee in the payment of rent. then the security
deposit or the balance thereof, if any, shall be returned no later
than two (2) weeks after the date Lessor receives possession of
the leased promises, or (b) where Lessor's claim against the
security deposit includes amounts reasonably necessary to repair
or clean the leased premises, then the remaining balance thereof,
if any, shall be returned on or before thirty (30) days from the
date Lessor receives possession of the leased promises. In the
event of a termination of Lessor's interest in this lease, Lessor
shall transfer said deposit to Lessor's successor in interest,
whereupon Lessee agrees to release Lessor from all liability for
there turn of such deposit or the accounting thereof. In no event
shall said security deposit be applied to the rent due for the
last month of the lease term except as required by law.
8. Taxes:
A. Personal Property Taxes: Lessee shall pay prior to
delinquency all taxes assessed against and levied upon trade
fixtures, furnishings, equipment and all other personal property
of Lessee contained in the leased premises or elsewhere. When
possible, Lessee shall cause said trade fixtures, furnishings.
equipment and all other personal property to be assessed and
billed separately from the real or personal property of Lessor.
B. (i) Real Estate Tax Defined: As used herein, the term
'real estate taxes' shall include any form of assessment, levy
penalty or tax (other than estate, inheritance, net income, or
franchise taxes) imposed on the land and improvements on which the
leased premises are situated by any authority having the direct or
indirect power to tax, including without limitation, the
Environmental Protection Agency, any city, county, state or
federal government, or any improvement or other district or
division thereof, whether or not such tax is (a) determined by the
net rentable area or the rent or other sums payable hereunder, or
(b)upon or with respect to any legal or equitable interest of
Lessor in the leased premises, the Building, or any part thereof,
or now customary or within the contemplation of the parties.
(ii) Real Estate Tax: Lessor shall pay, as they become due,
all real estate taxes which accrue against the Building during the
term of this lease. If the real property taxes levied against the
Building increases at any time for any reason over the taxes
payable for 1998/1999 ('base year'), Lessee shall pay his
proportionate share of any such increase. In computing Lessee's
share of any increase in property taxes, Lessee's share thereof is
fixed at 3.8%. It is understood and agreed that Lessor will not
know in advance the amount of additional property taxes to be paid
and that on determination of such amount a lump sum will be paid
by Lessee to Lessor and a pro rata share thereof shall be added to
the rental due each month for the succeeding years as hereinbelow
provided. The calculation of the additional rental due from
Lessee under the terms of this paragraph shall be made by Lessor
as soon as possible after Lessor is informed of said increase.
Lessor shall then five notice to Lessee of (a) the additional
rental due each month and (b) the lump sum amount due from Lessee
or any prior months as to which
Lessor has an obligation for increased real property taxes, Lessee
shall within ten (10) days of the date of said notice, pay to
Lessor the full amount of additional rental due for prior months
(including the pro rata share of any increased real property taxes
which would be payable in addition to the rental payments made in
the calendar year prior to the date of receipt of the notice
referred to hereinabove by Lessee from Lessor and shall pay on the
first day of each following month in addition to the rent
described in Paragraph 5 above, the additional monthly amount due
under this paragraph.
9. Lessor Services: Lessor will pay for the electricity, gas and
water utilized in operating any and all facilities serving the
leased premises, and, in addition, Lessor will furnish Lessee,
while occupying the leased premises:
A. Hot and cold water at those points of supply provided for
general use of other tenants in the Building, central heating and
air conditioning, during normal business hours on business days,
and at such temperatures and in such amounts as are considered by
Lessor to be standard, janitor service on a five (5) day week
basis, electric current, routine maintenance and electric lighting
service for all public areas and special service areas, including
elevators, of the Building in the manner and to the extent deemed
by Lessor to be standard. Failure by Lessor to any extent to
furnish these defined services, or any cessation thereof,
resulting from causes beyond the control of Lessor, shall not
render Lessor liable in any respect for damages to either person
or property, nor shall such event be construed as an eviction of
Lessee, nor work an abatement of rent, or relieve Lessee from
fulfillment of any covenant or agreement hereof. Should any of the
equipment or machinery break down, or for any cause cease to
function properly Lessor shall use reasonable diligence to repair
the same promptly, but Lessee shall have no claim for rebate of
rent or damages or account of any interruptions in service
occasioned thereby or resulting therefrom so long as Lessee shall
have reasonable access to and use of the leased promises.
B. Adequate electrical facilities to furnish power for
typewriters, voice writers, calculating machines and other
machines of similar low electrical consumption; provided, however,
that Lessee shall bear any utility costs occasioned by
electro-data processing machines, including air conditioning costs
therefor and similar machines of high electrical consumption.
10.Quiet Enjoyment: Lessor warrants that it has full right to
execute and to perform this lease and to grant the estate demised
herein and that Lessee. upon payment of the rents herein required,
and performing the terms, conditions, covenants and agreements
herein contained, shall peaceably and quietly have, hold and enjoy
the leased premises during the full term at this lease and any
extension or renewal thereof.
11. Repairs and Maintenance: Except as provided in Paragraph 9
above, Lessee shall, at all times during the term hereof at its
sole cost and expense, keep the premises and every part thereof in
good condition and repair, except damage thereto by fire,
earthquake, act of God or the elements, Lessee hereby waiving the
right to make repairs at Lessor's expense under any law, statute
or ordinance with respect thereto now or hereafter in effect.
Unless otherwise expressly provided herein, Lessor shall not be
required to make any improvements or repairs of any kind or
character on the leased premises during the term of this lease.
Lessee shall, at its own cost and expense, repair or replace any
damage or injury to the leased premises, or any part thereof,
caused by Lessee or Lessee's agents, employees, invitees,
licensees or visitors: provided, however, if Lessee fails to make
such repairs or replacements promptly, Lessor may, at its option,
make such repairs or replacements, and Lessee shall reimburse the
cost thereof to Lessor on demand, together with interest at the
maximum annual rate permitted by law from the date of such work.
Lessee shall not commit or allow any waste or damage to be
committed on any portion of the leased premises.
12. Assignment, Sublease, Mortgage, Changes in Corporate
Ownership, Right of First Refusal: Lessee shall not, and shall
not have the power to, transfer, assign, sublet, enter into
license or concession agreements, change ownership, mortgage or
hypothecate this lease or the Lessee's interest in and to the
leased premises without first procuring the written consent of the
Lessor. Any attempted or purported transfer, assignment,
subletting, license or concession agreement, change of ownership,
mortgage or hypothecation without the Lessor's written consent
shall be void and confer no rights upon any third person. Without
in any way limiting Lessor's right to refuse to give such consent
for any other reason or reasons. Lessor reserves the right to
refuse to give such consent if, in Lessor's reasonable business
judgment, the quality of the Building's operation or tenant mix is
or may be in any way adversely affected during the term of the
lease and/or the financial worth of the proposed new tenant Is
less than that of the Lessee executing this lease or of Lessee and
Lessee's guarantor as the case may be. As a condition for granting
its consent to any subletting, Lessor may require that Lessee pay
to Lessor, as additional rent, all rents or other economic
consideration received by Lessee from its Sublessees in excess of
the rents payable by Lessee to Lessor hereunder. Nothing herein
contained shall relieve Lessee or any guarantor from its covenants
and obligations for the term of this lease. Lessee agrees to
reimburse Lessor for Lessor's reasonable attorneys fees incurred
in conjunction with the processing and documentation of any such
requested transfer, assignment, subletting, license or concession
agreement, change of ownership, mortgage or hypothecation of this
lease or Lessee's interest in and to the leased premises.
Each transfer, assignment, subletting, license, concession
agreement, mortgage or hypothecation to which there has been
consent shall be by an instrument in writing in form satisfactory
to Lessor, and shall be executed by the transferor, assignor,
sublessor, licensor, concessionaire or mortgagee in each instance.
as the case may be: and each transferee, assignee, sublessee,
licensee, concessionaire or mortgagee shall agree in writing for
the benefit of the Lessor herein to assume, to be bound by, and to
perform the terms, covenants and conditions of this lease to be
done, kept and performed by the Lessee, including the payment of
all amounts due or to become due under this lease directly to the
Lessor. One executed copy of such written Instrument shall be
delivered to the Lessor. Failure to first obtain in writing
Lessor's consent or failure to comply with the provisions of this
Paragraph, shall operate to prevent any such transfer. assignment,
subletting, license, concession agreement or hypothecation from
becoming effective. No Assignee or Sublessee shall have a right
further to assign or sublet or a right to exercise any option
hereunder to extend the term of this lease.
If the Lessee hereunder is a corporation which is not deemed a
public corporation, or is an unincorporated association or
partnership, the transfer, assignment or hypothecation of any
stock or interest in such corporation, association or partnership
in the aggregate in excess of twenty-five percent (25%) shall be
deemed an assignment within the meaning of provisions of this
Paragraph 12.
Notwithstanding anything to the contrary contained herein, it at
any time during the term of this lease Lessee shall receive a bona
fide offer from any third party seeking an assignment, sublet or
other transfer of Lessee's interest In this lease. Lessee shall
serve on Lessor a written notice of the terms of such offer from
such third party and of Lessee's intention to accept the same.
Lessor shall have the right for a period of thirty (30) days from
the date of delivery of such notice to assume said assignment.
sublease or other such transfer of Lessee's Interest in this lease
on the same terms and conditions specified in the notice. In the
event that Lessor shall not within said thirty (30) day period
elect to assume said assignment. sublease or other such transfer
of Lessee's interest in this lease, then Lessee may, subject to
obtaining Lessor's prior written approval in accordance with this
Paragraph 12, assign, sublet or transfer Lessee's interest in this
lease on the same terms and conditions and to the third party
specified in the notice, provided that if Lessee does not assign,
sublet or otherwise transfer Lessee's interest in this lease to
said third party within sixty (60) days of the date of the
delivery of Lessee's notice to Lessor, any further transaction
shall be deemed to be a new determination by Lessee to assign,
sublet or otherwise transfer Lessee's interest in this lease and
the provisions of this paragraph shall apply.
13. Alterations and Improvements: Lessee shall not make or allow
to be made any alterations, physical additions in or to the leased
premises without first obtaining the written consent of Lessor.
Any and all such alterations, physical additions or improvements
to the leased premises shall be surrendered to Lessor upon the
termination of this lease, by lapse of time or otherwise and shall
become Lessor's property without compensation, allowance or credit
to Lessee; provided, however, this clause shall not apply to
moveable equipment, trade fixtures or furniture of Lessee, which
may be removed by Lessee at the end of the term of the lease if
Lessee is not then in default. If prior to such termination or
within ten (10) days thereafter, Lessor so directs by notice,
Lessee shall promptly remove the installations, additions,
hardware, non-trade fixtures and improvements placed in the leased
premises by Lessee and designated in the notice, failing which
Lessor may store or remove the same for Lessee's account and
Lessee shall pay the costs of such removal and storage and of any
necessary restoration of the leased premises.
14. Use: Lessee shall use and occupy the leased premises for
business offices and for no other purpose. Lessee shall not
occupy or use, or permit any portion of the leased premises to be
occupied or used for any business or purpose which is unlawful or
extra
hazardous, or permit anything to be done which would in any way
increase the rate of fire insurance coverage in said leased
premises and/or the contents of the Building, and in the event
that, by reason of such acts of Lessee, there shall be any
increase in the insurance rates of the Building or contents above
normal rates. or cancellation of the insurance, Lessee agrees to
pay to Lessor as additional rental, an amount equal to all such
increases.
15. Compliance with Laws and Flutes of Building: Lessee shall
comply with all laws, ordinances, orders, rules and regulations
(state, federal, municipal and other agencies or bodies having any
jurisdiction thereof) relating to the use, condition or occupancy
of the leased premises, Lessee will comply with the rules of the
Building adopted by Lessor which are set forth on a schedule
attached hereto and made a part hereof as fully as though set
forth herein. Lessor shall have the right if necessary to change
such rules and regulations or to amend them in any reasonable
manner for reasons including, without limitation. maintaining the
safety, care and cleanliness of [tie leased premises, energy
conservation. compliance with any and all regulatory orders, and
the preservation of good order therein, all of which changes and
amendments will be sent by Lessor to Lessee in writing and shall
be thereafter carried out and observed by Lessee.
16. Lessor's Right of Entry: Lessee shall permit Lessor or its
agents or representatives to enter into and upon any part of the
premises at all reasonable hours upon reasonable prior notice
(except in the case of emergencies), to inspect some. clean or
make repairs, alterations or additions thereto, as Lessor may deem
necessary or desirable, or for the purpose at determining Lessee's
thereof or whether an act of default under this lease has
occurred. Lessee shall not be entitled to any abatement or
reduction of rent to any damages for any injury or inconvenience
to or interference with Lessee's business. any loss at occupancy
or quiet enjoyment of the leased premises by reason of any such
repairs, alterations or additions reasonably required to be made
by Lessor hereunder.
17. Nuisance: Lessee shall conduct its business and control its
agents, employees, invitees and visitors in such a manner as not
to create any nuisance or interfere with, annoy, or disturb any
other tenant or Lessor in its management of the Building.
18. Condemnation: Should the whole or any part of the leased
premises be condemned and taken by any competent authority lot any
public or quasi-public use or purpose, all awards payable on
account of such condemnation and taking shall be payable to
Lessor, and Lessee hereby waives all interest in or claim to said
awards, or any part thereof. If the whole of the leased premises
shall be so condemned and taken, then this lease shall terminate.
If a part only at the leased promises is condemned and taken and
the remaining portion thereof is not suitable for the purposes for
which Lessee had leased said premises, Lessee shall have the right
to terminate this lease. If by such condemnation and taking part
only of the leased premises is taken, and the remaining part
thereof is suitable for the purposes for which Lessee has leased
said premises, this lease shall continue, but the rental shall be
reduced in an amount proportionate to the value of the portion
taken as it related to the total value of the leased premises.
19. Destruction: If, during the term, the leased premises or the
Building and other improvements in which the leased premises are
located are totally or partially destroyed from any cause,
rendering the leased promises totally or partially inaccessible or
unusable, Lessor shall restore the leased premises or the Building
and other improvements in which the leased premises are located to
substantially the same condition as they were in immediately
before destruction, if the restoration can be made under the
existing laws and can be completed within 90 working days after
the date of the destruction. Such destruction shall not terminate
this lease. The provisions of Section 1933, subparagraph 4, of the
Civil Code of California are hereby waived by Lessee.
If the restoration cannot be made in the lime stated in this
paragraph, then within 21 working days after the parties determine
that the restoration cannot be made in the lime stated in this
paragraph, Lessee can terminate this lease immediately by giving
notice to Lessor. If Lessee fails to terminate this lease and if
restoration is permitted under the existing laws, Lessor. at its
election, can either terminate this lease or restore the leased
premises or the Building and other improvements in which the
leased premises are located within a reasonable time and this
lease shall continue in full force and effect. If the existing
laws do not permit the restoration, either party can terminate
this lease immediately by giving notice to the other party.
In the event of restoration as herein provided, Lessee shall be
entitled to a proportionate reduction of the rent while such
restoration is being made, such proportionate reduction to be
based upon the extent to which the making of such restoration
shall materially interfere with the business carried on by the
Lessee in the leased premises. If the damage is due to the fault
of neglect of Lessee or its employees, there shall be no abatement
of rent.
Notwithstanding anything to the contrary contained in this
paragraph, Lessor shall not have any obligation whatsoever to
repair, reconstruct or restore the leased premises when the damage
resulting from any casualty covered under this paragraph occurs
during the last twelve (12) months at the term of this lease or
any extension thereof.
Lessor shall not be required to repair any injury or damage by
fire or other cause, or to make any repairs or replacements of any
panels, decoration, office fixtures, railings, floor covering,
partitions, or any other property installed in the leased premises
by Lessee.
00.Xxxxxxxxx: From and after the date that Lessee enters into
possession of the leased premises as permitted by the terms hereof
and throughout the form of this lease, Lessee shall at its sole
cost and expense provide and keep in full force and effect the
following insurance:
A. General liability insurance in standard form insuring
Lessee and Lessor as insureds against any liability whatsoever
occasioned by accident or disaster on, in or about the leased
premises with limits of not less than $500,000 for one person in
one accident and $ 1,000,000 with respect to one occurrence.
B. Properly damage insurance in an amount not less than
$100,000
C. Fire and extended coverage insurance in all risk form
insuring the interest of the Lessee in the Lessee's improvements
in the leased premises and its interest in its office furniture,
equipment and supplies. Lessee hereby waives any rights of action
against Lessor, including rights of subrogation. for loss or
damage covered by such insurance.
Insurance required hereunder shall be in companies rated A+, AAA
or better in 'Best's Insurance Guide". In addition, the insurance
required hereunder shall be primary insurance and shall provide
that the insurer shall be liable for the full amount of the loss
up to and including the total amount of liability set forth above
without the right of contribution from any other Insurance
coverage at Lessor.
All premiums on all policies referred to in this section shall be
paid by Lessee. Duplicate originals or certificates of such
policies shall be delivered to Lessor and any others named
pursuant to this section, immediately upon receipt thereof from
the insurance company or companies, but in no event later than the
commencement date of this lease. Duplicate originals or
certificates of renewal policies or new policies replacing any
policies expiring during the term hereof shall be delivered to
Lessor at least twenty (20) days, before the date of expiration of
the old or replaced policies, together with proof satisfactory to
Lessor that the full premiums have been paid by Lessee on the new
policies. Premiums on policies shall not be financed in any manner
whereby the lender, on default or otherwise, shall have the right
or privilege of surrendering or canceling the policies. Each
insurance policy required hereunder shall by its terms provide
that it shall not be modified without prior written consent of
Lessor and shall not be canceled unless ten (10) days notice
thereof is given by the insurer to Lessor.
On default by Lessee in obtaining any insurance required hereunder
or delivering any policies or paying the premiums or other charges
hereon as aforesaid, it shall be the privilege, though not the
obligation, of Lessor to effect fully such insurance and likewise
to pay any premiums or charges thereon. All sums so paid by
Lessor and all costs and expenses incurred by Lessor in connection
therewith, together with interest thereon at the maximum annual
rate permitted under Section 1(2) of Article XV of the California
Constitution, from the respective dates of Lessor's making of each
such payment, shall constitute additional rent payable by Lessee
under this lease and shall be paid by Lessee to Lessor on demand,
and Lessor shall not be limited in the proof of any damages which
Lessor may claim against Lessee arising out of or by reason of
Lessee's failure to provide and keep in force insurance as
aforesaid, to the amount of the insurance premium or premiums not
paid or incurred by Lessee and which would have been payable.
21. Surrender of Leased Premises: Lessee shall, at least ninety
(90) days before the last day of the term hereof, give to Lessor a
written notice of intention to surrender the leased premises on
that date, but nothing contained herein shall be construed as an
extension of the term hereof or as consent of Lessor to any
holding over by Lessee.
At the end of the term or any renewal thereof or other
sooner termination of this lease, Lessee will peaceably deliver up
to the Lessor possession of the leased premises, together with all
improvements or additions upon or belonging to the same, by
whomsoever made, in the same condition as received, or first
installed, ordinary wear and tear and damage by fire, earthquake,
act of God or the elements alone excepted. Lessee may, upon the
termination of this lease, remove, at Lessee's sole cost, all
trade fixtures installed by
Lessee, title to which shall be in Lessee until such termination,
repairing any damage to the leased premises caused by such removal
Any of Lessee s personal property and trade fixtures not removed
by Lessee at the end of the term or other sooner termination of
this lease shall be deemed abandoned by the Lessee if Lessor so
elects, and Lessor shall remove, store and dispose of such
personal property and trade fixtures in accordance with law,
Lessee shall be liable to Lessor for Lessor's costs incurred in
removing, storing arid disposing of Lessee's abandoned personal
property and trade fixtures. Lessee shall indemnity Lessor against
any loss or liability resulting from delay by Lessee in so
surrendering the leased premises. including without limitation.
any claims made by any succeeding lessee founded on such delay.
The voluntary or other surrender of this lease by Lessee, or a
mutual cancellation thereof, shall not work a merger, and shall,
at the option of Lessor, terminate all or any existing subleases
or subtenancies. or may, at the option of Lessor, operate as an
assignment to it of any or all such subleases or subtenancies.
22. Holding Over: Lessee hereby acknowledges that any holding
over after the expiration of the lease term by Lessee will cause
Lessor to incur damages not contemplated by this lease, the exact
amount of which will be extremely difficult to ascertain. Such
damages include but are not limited to, loss of rental income and
claims for damages from a future tenant to whom the Lessor
obligated to deliver possession during the holdover period. and
costs incurred in locating prospective new tenants. Accordingly,
the event of holding over by Lessee, Lessee shall pay Lessor as
rental for the period of such holdover an amount equal to three
hundred percent (300%) of the rent which would have been payable
by Lessee had such holdover period been a part of the original
term of this lease.
23. Default: Lessor's Remedies:
A. Default: The occurrence of any of the following shall
constitute a material breach of this lease by Lessee:
(i) Any failure by Lessee to pay rent or any other monetary
sum required to be paid hereunder (where such failure continues
for three (3) days after written notice thereof from Lessor to
Lessee).
(ii) The abandonment or vacation of the leased premises by
Lessee.
(iii) The failure by Lessee to observe and perform any other
provision of this lease to be observed or performed by Lessee,
where such failure continues for twenty (20) days after written
notice thereof by Lessor to Lessee. Provided, however, that if
the nature of such default is such that it cannot reasonably be
cured within such twenty (20) day period, Lessee shall not be
deemed to be in default if Lessee shall within such period
commence such cure and thereafter diligently prosecute the same to
completion.
B. Remedies: In the event of any such material default or breach
by Lessee, Lessor may at any time thereafter without limiting
Lessor in the exercise of any right or remedy at law or in equity
which Lessor may have by reason of such default or breach
(i) Maintain this lease in full force and effect and recover the
rent and other monetary charges as they become due without
terminating Lessee's right to possession, irrespective of whether
Lessee shall have abandoned the leased premises. In the event
Lessor elects not to terminate the lease, Lessor shall have the
right to attempt to relet the leased premises at such rent and
upon such conditions and for such a term, and to do all acts
necessary to maintain or preserve the leased premises as Lessor
deems reasonable and necessary without being deemed, to have
elected to terminate this lease, including removal of all persons
and property in the leased premises, such property may be removed
and stored in a public warehouse or elsewhere at the cost of and
for the account of Lessee. In the event any such retelling occurs.
this lease shall terminate automatically upon the new Lessee
taking possession of the leased premises. Notwithstanding that
Lessor fails to elect to terminate this lease initially, Lessor at
any time during the term of this lease may elect to terminate this
lease by virtue of such previous default by Lessee.
(ii) Terminate Lessee's right to possession by any lawful means.
in which case this lease shall terminate and Lessee shall
immediately surrender possession of the leased premises to Lessor.
In such event. Lessor shall be entitled to recover from Lessee all
damages incurred by Lessor by reason of Lessee's default,
including without limitation thereto, the following: (a) the worth
at the time of award of any unpaid rent which had been earned at
the lime of such termination. plus (b) the worth at the time of
award of the amount by which the unpaid rent which would have been
earned after termination until the lime of the award exceeds the
amount of such rental loss that is proved could have been
reasonably avoided: plus (c) 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 is
proved could be reasonably avoided: plus (d) any other amount
necessary to compensate Lessor for all the detriment proximately
caused by Lessee's failure to perform his obligations under this
lease or which in the ordinary course of events would be likely to
result therefrom: plus (e) at Lessor's election, such other
amounts in addition to or in lieu of the foregoing as may be
permitted from time to lime by applicable slate law. Upon such
re-entry, Lessor shall have the right to make any reasonable
repairs, alterations, or modifications to the leased premises,
which Lessor, in its sole discretion, deems reasonable and
necessary. As used in subparagraph (a) above, the "worth at the
time of award " is computed by allowing interest at the maximum
annual rate permitted by law from the date of default. As used in
subparagraphs (b) and (c) above, the "worth at the time of award"
is computed by discounting such amount at [he discount rate of the
U.S. Federal Reserve Bank at the time of award plus one percent
(1%). The term "rent". as used if this Paragraph 23, shall be
deemed to be and to mean the rent to be paid pursuant to
Paragraphs 5. 6 and 8 and all other monetary sums required to be
paid by Lessee pursuant to the terms of this lease.
24. Waiver of Breach: Failure of Lessor to declare any default
immediately upon occurrence thereof, or delay in taking any action
in connection therewith, shall not waive such default at any lime
and take such action as might be lawful or authorized hereunder,
either in law or in equity.
25. Attorney's Fees: In the event of any action or proceeding
brought by either party against the other under this lease, the
prevailing party shall be entitled to recover all costs and
expenses, including the fees of its attorneys in such action or
proceeding in such amount as the court may adjudge reasonable as
attorneys' fees.
26. Waiver of Subrogation: Anything In this lease to the contrary
notwithstanding each party hereby waives any and all rights of
recovery, claim, action or cause of action against the other, its
agents, officers and employees, for any loss or damages that may
occur to the leased premises or any improvements thereto or the
Building of which the leased premises are a part, or any
improvements thereto, by reason of fire, the elements or any other
cause which could be Insured against under the terms standard fire
and extended coverage Insurance policies, regardless of cause or
origin, including negligence of the parties hereto, their agents,
officers and employees.
27. Signs: Lessor has not conveyed to the Lessee any rights in or
to the outer side of the outside xxxxx of the Building of which
the leased premises forms a part. The Lessee shall not display or
erect any lettering, sign, advertisement, awning, or other
projection in or on the leased premises or in or on the Building,
or make any alteration, decoration, addition, or improvement in or
to the leased premises, or in or to the Building, without the
prior written consent of the Lessor. If such consent is granted,
the Lessee, at its sole expense, shall carry such workmen's
compensation and general liability insurance as the Lessor may
require.
28. Hold Harmless: Lessee shall hold Lessor harmless from all
damages arising out of any damage to any person or property
occurring in, on, or about the leased premises and the Building in
which the leased premises are located, except that Lessor shall be
liable to Lessee for damage resulting from the acts or omissions
of Lessor or its authorized representatives. Lessor shall hold
Lessee harmless from all damages arising out of any such damage.
A party's obligation under this paragraph to indemnify and hold
the other party harmless shall be limited to the sum that exceeds
the amount of insurance proceeds, if any, received by the party
being indemnified.
29. Liens: Lessee shall keep the leased premises and the Building
of which the leased premises are a part free from any liens
arising out of work performed, materials furnished, or obligations
incurred by Lessee and shall indemnify, hold harmless and defend
Lessor from any liens and encumbrances arising out of any work
performed or materials furnished by or at the direction of Lessee.
In the event that Lessee shall not, within twenty (20) days
following the imposition of any such lien, cause such lien to be
released of record by payment or posting of a proper bond, Lessor
shall have, in addition to all other remedies provided herein and
by law the
right, but no obligation, to cause the same to be released by such means as
it shall deem proper. Including payment of the claim, giving also to such
lien. All such sums paid by Lessor and all expenses incurred by t in
connection therewith, including attorneys' fees and costs, shall be payable
to Lessor by Lessee on demand with interest of the maximum annual rate
permitted by law. Lessor shall have the right at all times to post and keep
posted on the leased premises any notices permitted or required by law, or
which Lessor shall deem proper, for the protection of Lessor and the leased
premises, and any other party having an interest therein, for mechanics and
materialmen's liens, and Lessee shall give to Lessor at least ten (10)
business days prior written notice of the expected date of commencement of
any work relating to alterations or additions to the leased premises.
30. Notices: In every Instance where It shall be necessary or desirable for
the Lessee to serve any notice or demand upon the Lessor, such notice or
demand shall be sent by United States Registered or Certified Mail, Postage
prepaid, addressed to the Lessor at see Paragraph number 39 or at such other
address of Lessor as may appear on the records of Lessee. Any notice or
demand to be given by the Lessor to
the Lessee shall be effective if mailed or delivered to the office of the
Lessee in the leased premises or at such other address as may appear on the
records of the Lessor. Notice mailed as aforesaid shall be deemed to have
been served a the time the same is posted.
31. Subordination: Attornment: At Lessor's option, this lease shall be
subject and subordinate to all ground and underlying leases which now exist
or may hereinafter be executed affecting the Building or the land upon which
the Building is situated or both, and to the lien of any mortgages or deeds
of trust in any amount or amounts whatsoever now or hereafter placed on or
against the land or improvements of which the leased premises are a part, on
or against Lessor's interest or estate herein, or on or against any ground
or underlying lease, without the necessity of the execution and delivery of
any further instruments on the part of Lessee to effectuate such
subordination. If any mortgages, trustee or ground lessor shall elect to
have this lease prior to the lien of its mortgage, deed of trust or ground
lease, and shall give written notice thereof to Lessee, this lease shall be
deemed prior to such mortgage, dead of trust or ground lease, whether this
lease is dated prior or subsequent to the date of said mortgage, dead of
trust or ground lease or the date of the recording thereof. Lessee covenants
and agrees to execute and deliver upon demand without charge therefor, such
further instruments evidencing such subordination of this lease to such
ground or underlying leases and to the lien of any such mortgages or deeds
of trust as may be required by Lessor. Lessee hereby appoints Lessor as
Lessee's attorney-in-fact, irrevocably, to execute and deliver any such
agreements, instruments, releases or other documents.
In the event any proceedings are brought for default under any ground
or any underlying lease or in the event of foreclosure or the exercise of
the power of sale under any mortgage or dead of trust made by Lessor
covering the Building of which the leased premises are a part, Lessee shall
attorn to the purchaser upon any such foreclosure or sale and recognize such
purchaser as Lessor under this lease, provided such purchaser expressly
agrees in writing to be bound by the forms of the lease.
32. Estoppel Certificate: Lessee shall within ten (10) days after receipt
of a request therefor from Lessor, executer, acknowledge and deliver to
Lessor a statement in writing (a) certifying that this lease is unmodified
and In full force and effect (or, if modified, is in full force and effect)
and the date to which rent and other charges are paid in advance, if any and
(b) acknowledging that there are not, to Lessee's knowledge, any uncured
defaults on the part of Lessor hereunder, or specifying such defaults if any
are claimed. Any such statement may be conclusively relied upon by a
prospective purchaser or encumbrancer of the Building of which the leased
premises are a part. Lessee's failure to execute such statement within such
time shall be conclusive upon Lessee (i) that this lease is in full force
and effect without modification except as may be represented by Lessor. (ii)
that there are no uncured defaults in Lessor's performance, and (iii) that
not more than one month's rent has been paid in advance. If Lessor desires
to finance or refinance said Building in which the leased premises are a
part, Lessee hereby agrees to deliver to any lender designated by Lessor
such financial statements of Lessee as may be reasonably required by such
lender. All such statements shall be received by Lessor in confidence and
shall be used only for the purpose herein set forth.
33. Transfer of Lessor's Interest: In the event of a sale or conveyance by
Lessor of Lessor's interest in the Building of which the leased promises
form a part other than a transfer for security purposes only, Lessor shall
be relieved, from and after the date specified in such notice of transfer,
of all obligations and liabilities accruing thereafter on the part of
Lessor, provided that any funds in the hands of Lessor at the time of
transfer in which Lessee has an interest, shall be delivered to the
successor of Lessor. This lease shall not be affected by any such sale and
Lessee agrees to attorn to the purchaser or assignee provided all Lessor's
obligations hereunder are assumed in writing by the transferee.
34. Insolvency or Bankruptcy of Lessee: The insolvency of Lessee pursuant to
California law with respect to the appointment of a receiver to Inks
possession of all or substantially all of the property of Lessee, or the
making of a general assignment for the benefit of creditors by Lessee shall
terminate this lease and entitle Lessor to re-enter and regain possession of
the leased premises. In the event that there shall be filed by or against
Lessee a petition in bankruptcy or for reorganization pursuant to any
statute of the United States the rights of Lessor and Lessee shall be
determined, if applicable, by the provisions of the Bankruptcy Reform Act of
1978 or any successor statute hereafter in effect.
35. General:
A. This lease shall be binding and inure to the benefit of the
parties hereto and their respective heirs, personal representatives,
successors and assigns.
B. This agreement may not be altered, changed or amended, except by
an instrument in writing signed by both parties.
C. This instrument along with any exhibits and attachments hereto
constitutes the entire agreement between Lessor and Lessee relative to the
leased premises. Lessor and Lessee agree hereby that all prior
contemporaneous oral agreements between and among themselves and their
agents or representatives relative to the leasing of the leased premises are
merged in or revoked by this agreement.
D. If any term or provision of this lease shall, to any extent, be
determined by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this lease shall not be affected thereby,
and each term and provision of this lease shall be valid and enforceable to
the fullest extent permitted by law.
E. The captions of the paragraphs of this lease are for convenience
only and shall not be deemed to be relevant in resolving any question of
interpretation or construction of any paragraphs of this lease. Exhibits
attached hereto, and addendums and schedules initialed by the by the
parties, are deemed by attachment to constitute part of this lease and are
incorporated herein.
F. The words 'Lessor' and 'Lessee', as used herein, shall include the
plural as well as the singular. Words used in neuter gender include the
masculine and feminine and words in the masculine or feminine gender include
the neuter. If there be more than one Lessor or Lessee, the obligations
hereunder imposed upon Lessor or Lessee shall be joint and several. If the
Lessees are husband and wife, the obligations shall extend individually to
their sole and separate property as well as to their community property.
G. The word 'rent' as used herein, shall include minimum monthly rent,
prepaid rent, percentage rent, if any, adjustments to rent, security
deposit, real property taxes and assessments, common area charges, operating
costs and any other similar charges payable by Lessee to Lessor.
H. Time is of the essence of this lease and each and every provision
hereof. All the terms, covenants, and conditions contained in this lease to
be performed by either party, if such party shall consist of more than one
person or organization, shall be deemed to be joint and several, and all
rights and remedies of the parties shall be cumulative and non-exclusive of
any other remedy at law or in equity.
I. No covenant, term or condition or the breach thereof shall be deemed
waived, except by written consent of the party against whom the waiver is
claimed, and any waiver or the breach of any covenant, term or condition
shall no be deemed to be a
waiver of any proceeding or succeeding breach of the same or any other
covenant, term or condition. Acceptance by Lessor of any performance by
Lessee after the time the same shall have become due shall not constitute a
waiver by Lessor of the breach or default of any covenant, term or condition
or otherwise expressly agreed to by Lessor in writing.
J. Except as limited elsewhere in this lease, wherever in this lease Lessor
or Lessee is required to give its consent or approval to any action on the
part of the other. such consent or approval shall not be unreasonably
withheld. In the event of failure to give any such consent, the other party
shall be entitled to specific performance at law and shall have other
remedies as are reserved to it under this lease, but in no event shall
Lessor or Lessee be responsible in monetary damages for failure to give
consent unless said consent is withheld maliciously or in bad faith.
K. If Lessee is a corporation, each individual executing this lease on
behalf of said corporation represents and warrants that he/she is duly
authorized to execute and deliver this lease on behalf of said corporation
in accordance with a duly adopted resolution of the Board of Directors of
said corporation or in accordance with the Bylaws of said corporation, and
that this lease is binding upon said corporation in accordance with its
terms. If Lessee is a corporation, Lessee shall, within thirty (30) days all
execution of this lease, deliver to Lessor a certified copy of the
resolution of the Board of Directors of said corporation authorization, or
ratifying the execution of this lease.
L. All reference to the lease term shall include any extensions of such term.
36. Rights Reserved to Lessor: Lessor shall have the following rights
exercisable without notice, unless otherwise herein provided, and without
liability to Lessor for damage or injury to property, person or business
(all claims for damage being hereby released), and without effecting an
eviction or disturbance of Lessee's use or possession or giving rise to any
claim for setoffs, or abatement of rent:
A. Lessor shall have the right to relocate the leased premises to another
part of the Office Complex in which the leased premises are located in
accordance with the following:
(i) The new premises shall be substantially the same in size, dimensions,
configuration, decor and nature as the leased premises described in this
lease and shall be placed in that condition by Lessor at its cost.
(ii) The physical relocation of the premises shall be accomplished by
Lessor at its cost.
(iii) Lessor shall give Lessee at least thirty (30) days notice of
Lessor's intention to relocate the leased premises.
(iv) The physical relocation of the leased premises shall take place
during evenings, weekends, or otherwise so as to incur the least
inconvenience to Lessee.
(v) All reasonable costs incurred by Losses as a result of the
relocation shall be paid by Lessor.
(vi) If the relocated premises are smaller than the leased premises as
they existed before the relocation, rent shall be reduced to a sum computed
by multiplying the rent specified in Paragraphs 5 and 6 hereof by a
fraction, the numerator of which shall be the total number of net rentable
square feet in the relocated premises, and the denominator of which shall be
the total number of net rentable square feet in the leased premises before
relocation.
(vii) The parties immediately shall execute an amendment to this lease
stating the relocation of the leased premises and the reduction of rent, if
any.
(viii) Should Lessee refuse to permit Lessor to relocate Lessee to
such new premises at the end of the said thirty (30) day period, such
refusal shall constitute a default by Lessee pursuant to paragraph 23A (iii)
of this lease.
B. To change the name or street address of the Building in which the
leased premises are located.
C. To install and maintain signs on the exterior and interior of the
Building in which the leased premises are located.
D. To designate all sources furnishing sign painting and lettering, ice,
mineral or drinking water, beverages, foods, towels, vending machines or
toilet supplies used or consumed on the leased premises.
E. To have pass keys to the leased premises.
F. To decorate, remodel, repair, alter or otherwise prepare the leased
premises for occupancy during the last six months of the term hereof, if
during or prior to such time Lessee vacates the leased premises, or at any
time after Lessee abandons the leased premises.
G. To enter the leased premises at reasonable hours to make inspections,
or to exhibit the leased premises to prospective tenants, purchasers or
others, or for other reasonable purposes.
H. To approve the weight, size and location of sates, computers, and
other heavy articles in and about the leased premises and the Building and
to require all such items and other office furniture and equipment to be
moved in and out of the Building and leased premises only at such times and
in such manner as Lessor shall direct and in all events at Lessee's sole
risk all responsibility.
I. At any time or times, to decorate and to make, at its own expense,
repairs, alterations, additions and improvements, structural or otherwise,
in or to the leased promises, the Building or part thereof, and to perform
any acts related to the safety, protection or preservation thereof, and
during such operations to take into and through the leased premises or any
part of the Building all material and equipment required to close or
temporarily suspend operation of entrances, doors, corridors, elevators or
other facilities, provided that Lessor shall cause as little inconvenience
or annoyance to Lessee as is reasonably necessary in the circumstances.
Lessor may do any such work during ordinary business hours and Lessee shall
pay Lessor for overtime and for any other expenses incurred if such work is
done during other hours at Lessee's request.
J. To do or permit to be done any work in or about the leased premises or
the Building or any adjacent or nearby building, land, street or alley.
K. To grant to anyone the exclusive right to conduct any business or
render any service in the Building, provided such exclusive right shall not
operate to exclude Lessee from the use expressly permitted by Paragraph 14
of this lease.
Lease Dated March 31, 1999 (Tangible Investments of America, Inc.- 00000
Xxxxxx Xxxx.-
Xxxxx # 000, Xxxxxx, Xx.) - (Approximately 1,
722 sq.ft.)
37. NO OPTION: The submission of this Lease by Lessor, its agent or
representative for examination or execution by Lessee does not
constitute an option or offer to lease the Premises upon terms
and conditions contained herein or a reservation of the
Premises in favor of Lessee, it being intended hereby that this
Lease and delivery of a fully executed counterpart hereof to
Lessee.
38. BASE RENT: The rental rate shall be as follows:
May 1, 1999 - April 30, 2000 $ 2,066.40 / month.
1
39. NOTICES: All notices or demands under this Lease shall be by
Certified Mail, postage prepaid.
If sent to Lessor and its managing agent, at the
address below:
TUSTIN BUSINESS CENTER, LP.
c/o OPTIMA ASSET MANAGEMENT SERVICES, INC.
0000 Xxxx Xxxxxx, Xxxxx #000
Xxxxxxx Xxxxx, XX 00000
If sent to Lessee, at the address below:
TANGIBLE INVESTMENTS OF AMERICA, INC.
Attn: Xxxxxxx XxXxxxxx - President
1550 So. Xxxxxxx Xxxxx Xxxxxxx - # 000
Xxxxxx Xxxxx, Xx. 92651
[and / or]
00000 Xxxxxx Xxxx. - Xxxxx # 000
Xxxxxx, Xxxxxxxxxx 00000
40. TENANT IMPROVEMENTS: Lessee accepts the space in as-is condition; except
A. Lessor to replace ceiling tiles and ligh t diffusers throughout
so that they are uniform in pattern and color.
X. Xxxxxx to repaint the suite with building standard paint, color
to be chosen by the Lessee.
X. Xxxxxx to install If expand the existing interior window (marked
in Exhibit "A") to a dimension which is approximately one (1)
foot wider and one (1) foot lower in size.
X. Xxxxxx will close off the opening to the adjacent space which
will be known as Suite # 208, which is not apart of this lease.
41. INSURANCE: In addition to the provisions of Paragraph 20, Lessor and
any mortgagee of Lessor, are to be insured under all insurance policies as
their respective interests may appear; and shall be added as additional
insured on any liability policy. Any mortgagee of Lessor of which Lessee has
been provided with written notice shall be named as loss payee on all fire
and property damage policies.
42. DESTRUCTION: In addition to the provisions of Paragraph 19, Lessor's
obligation to restore shall also be based upon the availability of
sufficient insurance proceeds. If the casualty is not covered by Lessor's
insurance, and Lessor has carried insurance of the type customarily carried
by Owners of similar office building in the area, then Lessor reserves the
right to terminate the Lease by written notice to Lessee.
43. DEFAULT; LESSOR'S REMEDIES: In addition to the provisions of
Paragraph 23, Lessor has the remedy described in California Civil Code
Section 1951.4 - Lessor may continue Lease in effect after Lessee's breach
and abandonment and recover the rent as it becomes due, since Lessee had the
right to sublet or assign subject only to reasonable limitations.
44. INDEMNIFICATION: Paragraph 28 is substituted with the following:
Lessee shall indemnify, defend and hold harmless Lessor against and from any
and all claims arising from Lessees's uses of the Premises or the conduct
of its business or from activity, work or thing done, permitted or suffered
by Lessee in or about the Premises. Lessee shall further indemnify, defend
and hold harmless Lessor against and from any and all claims
arising from many breach or default in the performance of any obligation on
Lessee's part to be performed under the terms of this Lease, or arising from
any negligence or misconduct of Lessee or of its agents or employees, and from
and against all costs, attorneys fees, expenses and liabilities incurred
in connection with any such claim or any action or proceeding brought with
respect thereto. Notwithstanding the foregoing, Lessee shall have no obligation
to indemnify Lessor against, and Lessor shall not be released from, any and
all claims arising from Lessor's own gross negligence or willful misconduct,
or that of its agents employees or contractors, Lessor's violation of law, or
a material breach of its obligations under this lease. In case any action or
proceeding shall be brought against Lessor by reason of any such claim, upon
notice from Lessor, Lessee shall defend the same at Lessee's expense by counsel
approved in writing by Lessor. Notwithstanding the foregoing, Lessor shall be
responsible for all risk and damage associated with Lessor's use of the
Premises and the use of the Premises by any of Lessor's agents, employees or
invitee's.
45. HAZARDOUS WASTE: Lessee agrees to comply with local and federal
ordinances with respect to hazardous waste.
46. AMERICAN DISABILITIES ACT: Lessee acknowledges that it is aware of
the fact that the American Disabilities Act (ADA) became effective in July
of 1992. Lessee acknowledges that it is responsible for compliance with this
legislation to the extent that compliance requires changes to the Premises
rented by Lessee. To the extent that the ADA requires changes to the common
areas, then Lessor shall be responsible for making any such changes and
shall charge for and include such costs and expenses as operating costs in
the manner provided in Paragraph 6.13 above.
47. WAIVER OF SUBROGATION: Notwithstanding anything to the contrary in
this Lease, the parties hereto release each other and their respective
agents, employees, successors, assigns and subtenants for all liability for
injury to any person or damage to any property that is caused by or results
from a risk which is actually insured against by such party, without regard
to the negligence or wilfully misconduct of the entity so released. Each
party shall use its best efforts to cause each insurance policy it obtains
to provide that the insured thereunder waives all right of recovery by way
of subrogation as required herein in connection with any injury or damage
covered by the policy.
If such insurance policy cannot be obtained with such waiver of subrogation
or if such waiver of subrogation is only available at additional cost, and
the party for whose benefit the waiver is not obtained does not pay such
additional cost, then the party obtaining such insurance shall notify the
other party of that fact.
48. ATTORNEY'S FEES: If either Lessor or Lessee shall bring any action or
legal proceeding to enforce, protect or establish a term or covenant of this
Lease, the prevailing party shall be entitled to recover its reasonable
attorneys' fees, court costs and experts' fees as may be fixed by the court.
49. LESSOR'S LIABILITY: The term 'Lessor' as used herein shall mean only
the Owner or Owners, at the time in questions, the fee title or a Lessee's
interest in a ground lease of the Building, and in the event of any transfer
of such title or interest, Lessor herein named (and in case of subsequent
transfer then the grantor) shall be relieved from and after the date of such
transfer of all liability as respects Lessor's obligations hereafter to be
performed, provided that any funds in the hands of Lessor or the then
grantor at the time of such transfer, in which Lessee has an interest, shall
be delivered to the grantee. The obligations contained in this Lease to be
performed by Lessor shall, subject as aforesaid, be binding on Lessor's
successors and assigns, only during their respective periods of ownership,
provided that Lessor shall enter into an assignment and assumption agreement
with any successor landlord prior to being relieved of its liability hereunder.
50. ASSIGNMENT AND SUBLETTING: With respect to any assignment, subletting
or transfer, Lessee shall provide Lessor with financial statements of the
proposed assignee or sublessee, the details of the proposed transfer and any
other information reasonably required by Lessor. Lessor shall not
unreasonably withhold its consent based upon its review of foregoing items,
and shall deliver its consent (or its denial of consent) within
fourteen (14) days after delivery of the written request for consent and all
the information required hereunder. Notwithstanding any consent given by
Lessor, no assignment or subletting shall, without the further written
approval of Lessor, which may be withheld in Lessor's sole discretion, shall
release Lessee of Lessee's obligation hereunder, and Lessee will remain
liable for the payment and performance of this Lease. Landlord shall not
unreasonably withhold its' approval allowing tenant to assign or sublet all
or part of its leasehold interest during the term of this Lease. In the
event Tenant subleases the space for an amount in excess of current rent,
Landlord shall be entitled to fifty percent (50%) of the additional amount.
51. BROKER: Lessee warrants to Lessor that it has worked with no Brokers
or representatives on their behalf.
52. OPTION TO RENEW: Provided that the Lessee is not then in default of this
Lease, Lessor grants to Lessee an Option to Renew this Lease for an
additional one (1) year period at the then prevailing rate and terms for
space in the building. In order to retain this granted option Lessee must
notify the Lessor in writing, of its intention to renew the lease no later
than 90 days prior to the termination of this lease.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
have duly executed this Lease with the Exhibits attached hereto.
LESSOR: TUSTIN BUSINESS CENTER, LIP
a California Limited Partnership
By: Optima Asset Management/Services, Inc.
Its Managing Agent
By: /s/Xxxxxxx X. Xxxxxxxx Date: 4/9/99
Its: President
LESSEE: TANGIBILE INVESTMENTS OF AMERICA, INC.
A Pennsylvania Corporation
By: /s/Xxxxxxx Xx Xxxxxx Date: 4/8/99
Name: Xxxxxxx Xx Xxxxxx
Title: President
AND
By: /s/Xxxxxxx Xx Xxxxxx
Name: Xxxxxxx Xx Xxxxxx
Title: Secretary/Treasurer
NOTICE TO PERSON(S) OBTAINING SIGNATURES OF LESSEE/TENANT
If Lessee is a corporation, the authorized officers must sign on
behalf of the corporation, and indicate the capacity in which they
are signing. The Lease 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 may be, must be attached to the this Lease.
EXHIBIT A - FLOOR PLAN, SUITE 204
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed displayed, or printed or affixed on or to any part of the
outside or inside of the Building/Office Complex or the leased
premises without the prior written consent of Lessor and Lessor shall
have the right to remove any such sign, placard, picture,
advertisement, name or notice without notice to and at the expense of
Lessee. All approved signs or lettering on doors shall be printed,
painted, affixed or inscribed at the expense of Lessee by a person
approved of by Lessor. Lessee shall not place anything or allow
anything to be placed near the glass or any window, door, partition or
wall which may appear unsightly from outside the leased premises,
provided however, that Lessor may furnish and install a Building
standard window covering at all exterior windows. Lessee shall not
without prior written consent of Lessor cover or otherwise sunscreen
any window.
2. Lessor shall approve in writing prior to installation the method of
attachment of any objects affixed to walls, ceilings, or doors.
3. The bulletin board or directory of the Building/office Complex will be
provided exclusively for the display of the name and location of
Lessee only and Lessor reserves the right to exclude any other names
therefrom.
4. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by Lessee or used by Lessee for any
purpose other than ingress to and egress from the leased premises. The
halls passages, exits, entrances, elevators, stairways, balconies and
roof are not for the use of the general public and the Lessor shall in
all cases retain the right to control and prevent access thereto by
all persons whose presence in the judgement of the Lessor shall be
prejudicial to the safety character, reputation and interests of the
Building/office Complex and its Lessees, provided that nothing herein
contained shall be construed to prevent ouch access to persons with
whom the Lessee normally deals in the ordinary course of Lessees
business unless such persons are engaged in illegal activities. No
Lessee and no employees or invitees of any Lessee shall go upon the
roof of the Building/office Complex.
5. Locks - No additional locks or bolts of any kind shall be placed upon
any of the doors or windows by Lessee, not shall any changes be made
in existing locks or the mechanisms thereof without the prior written
consent of the Lessor. Lessee must, upon the termination of Lessees
tenancy restore to Lessor all keys of storage, offices and toilet
rooms either furnished to or otherwise procured by Lessee and in the
event of the loss of any keys so furnished Lessee shall pay to Lessor
the cost thereof or of changing the lock or locks opened by lost keys
if Lessor deems it necessary to make a change.
6. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown
therein and the expense of any breakage, stoppage or damage resulting
from the violation of this rule shall be borne by the Lessee who or
whose employees or invitees shall have caused it.
7. Lessee shall not overload the floor of the leased premises or xxxx,
drive nails, screw or drill Into the partitions, woodwork or plaster
or in any way deface the leased premises or any part thereof. No
boring cutting or stringing of wires shall be permitted except with
the prior written consent of the Lessor and an'the Lessor may direct.
8. No furniture, freight or equipment of any kind shall be brought into
the Building/Office Complex without the consent of Lessor and all
moving of the same into or out of the Building/Office Complex shall be
done at such time and in such manner as Lessor shall designate.
Lessor shall have the right to prescribe the weight, size and position
of all safes and other heavy equipment brought into the
Building/Office Complex and also the times and manner of moving the
same in and out of the Building/Office Complex. Safes or other heavy
objects shall, if considered necessary by Lessor, stand on wood strips
of such thickness as is necessary to properly distribute the weight.
Lessor will not be responsible for loss of or damage to any such safe
or property from any cause and all damage done to Building/Office
Complex by moving or maintaining any such safe or other property shall be
repaired at the expense of Lessee. There shall not be used in any
space or in the public halls of the Building/office Complex either by
any Lessee or others any hand trucks except those equipped with rubber
tires and side guards.
9. Janitorial Service - Lessee shall not employ any person or persons for
the purpose of cleaning the leased premises without the consent of
Lessor. Lessor shall be in nowise responsible to Lessee for any loss
of property from the leased premises, however occurring or for any
damage done to the effects of Lessee by the Janitorial Service or any
of Lessors employees or by any other person. Janitorial service will
not include the cleaning of carpets and rugs other than vacuuming.
Lessee shall not cause unnecessary labor by reason of Lessees
carelessness and indifference in the preservation of good order and
cleanliness.
10. Lessee shall not use, keep or permit to be used any foul or noxious
gas or substance in the leased premises, or permit or suffer the leased
premises to be occupied or used in a manner offensive or objectionable to
the Lessor or other occupants of the Building/Office Complex. No Lessee
shall make or permit to be made any unseemly or disturbing noises or
disturb or interfere with occupant of this or neighboring buildings or
leased premises or those having business with them whether by the use of
any musical instruments, radio, phonograph, unusual noise, or in any other
way. No Lessee shall throw anything out of doors or down the passageways.
No trash shall be put in the common areas before 5:00 p.m.
11. Lessee shall not use or keep in the leased premises or the
Building/Office Complex any kerosene, gasoline or inflammable or
combustible fluid or material, or use any method of heating or air
conditioning other than that supplied by Landlord without prior consent
of Landlord.
12. No cooking shall be done or permitted by any Tenant on the Premises
nor shall the Premises be used for the storage of merchandise for
washing clothes, for lodging or for any improper, objectionable or
immoral purposes.
13. Lessor will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires will
be allowed without the consent of Lessor. The location of telephones, call
boxes and other office equipment affixed to the leaned premises shall be
subject to the approval of Lessor.
14. Installation of Floor coverings - No Lessee shall lay linoleum or
other similar floor covering so that the same shall be affixed to the
floor of the leased premises in any manner except by a paste or other
material which may easily be removed with water, the use of cement or
other similar adhesive materials being expressly prohibited. The method
of affixing any such linoleum or other similar floor covering to the
floor shall be subject to approval by Lessor. The expense of repairing
any damage resulting from a violation of this rule shall be borne by
Lessee by whom or by whose agents, employees or visitors the damage
shall have been caused.
15. Carpet/Floor Protection - Lessee shall provide and use chair pads and
carpet protectors at all desk and furniture locations.
16. No furniture, packages, supplies; equipment or merchandise will be
received in the Building/Office Complex or carried up or down in the
elevators except between such hours and in such elevators as shall be
designated by Lessor.
17. On Saturdays, Sundays and legal holidays and on other days between
the hours of 6:OO p.m. and 8:00 a.m. the following day. Access to the
Building/Office Complex or to the halls, corridors, elevators or
stairways in the Building/Office Complex or to the leased premises
may be refused unless the person seeking access in known to the
person or employee identified. The Lessor shall in no case be liable
for damages for any error with regard to the admission to or
exclusion from the Building/Office Complex of any person. In case of
invasion, mob, riot, public excitement or other commotion, the Lessor
reserves the right to prevent access to the Building/Office Complex
during the continuance of the same by closing the doors or otherwise
for the safety of the Lessees and protection of property in the
Building/Office Complex. The Lessor reserves the right to close and
keep locked all entrance and exit doors of the Building/Office
Complex on Saturdays, Sundays and legal holidays and on other days
between the hours of 6:00 p.m. and 8:00 a.m. and during such further
hours as Lessor may deem advisable for the adequate protection of
said Building/Office Complex and the property of its Lessees.
18. All entrance doors to the leased premises shall be left locked when
the leased premises are not in use and all doors opening to public
corridors shall be kept closed for normal ingress and egress from the
leased premises.
19. Lessor reserves the right to exclude or expel from the Building/
office Complex any person who in the judgement of Lessor is
Intoxicated or under the influence of liquor or drugs, or who shall
in any manner do any act in violation of any of the rules and
regulations of the Building/office Complex.
20. Employees of Lessor shall not perform any work or do anything outside
of their regular duties unless under special instructions from the Lessor
and no employee will admit any person (Lessee or otherwise) to any office
without specific instructions from the Lessor.
21. No vending machines of any description shall be installed, maintained
or operated upon the leased premises without the prior written consent of
the Lessor.
22. Lessor shall have the right exercisable without notice and without
liability of Lessee to change the name and street address of the
Building/office complex of which the leased premises are a part.
23. Lessee agrees that it shall comply with all fire and security
regulations that may be issued from time to time by Lessor and
Lessee also shall provide Lessor with the name of a designated
responsible employee to represent Lessee in all matters pertaining
to such fire or security regulations.
24. Lessor reserves the right by written notice to Lessee to rescind
alter or waive any rule or regulation at any time prescribed for the
Building/Office Complex when in the Lessors judgement it is
necessary, desirable or proper for the beat interest
of the Building/Office Complex and its Lessees.
25. Lessee shall not disturb - solicit or canvass any occupant of the
Building/Office Complex and shall cooperate to prevent same.
26. Without the prior written consent of Lessor, Lessee shall not use
the name of the Building/Office Complex in connection with in
promoting or advertising the business of Lessee except as Lessees
address.
27. Lessor shall furnish reasonable amounts of heating and air
conditioning during the hours of 7:00 a.m. to 5:00 p.m. Monday
through Friday. In the event Lessee requires heating and air
conditioning during off hours, Saturdays, Sundays or holidays,
Lessor shall on notice, provide such services at the rate determined
by the Lessor.
28. Energy Conservation Measures - Lessee shall abide by all energy
conservation measures employed by Lessor, including but not limited
to requirements that lights be extinguished upon leaving the leased
premises and that draperies be closed at times specified by Lessor.
Lessee shall not use any method of heating or air conditioning other
than that supplied by Lessor.
29. Equipment Defects - Lessee shall give Lessor prompt notice of any
accidents to or defects in the water pipes, gas pipes, electric lights
and fixtures heating apparatus, or any other service equipment.
30. Parking - Cars are to park in properly marked spaces only. Under no
circumstances are cars to (a) back in, (b) park in spaces reserved for
other Lessees and/or building management, (c) park in driveways, (d) park
in front of entrances to the Building/Office Complex, (e) park in
unmarked areas, (f) park in loading zones, (g) park in two or more
spaces or (h) park in areas, reserved for the handicapped. Lessor shall
have the right to cause improperly parked cars to be towed at the car
owners expense. Lessor shall have from time to time the right to
review Lessees allotment of parking spaces and assess a fee for any
excessive usage thereof.
