Exhibit 10.1
LEASE
THIS LEASE, dated March 23, 2001, is made and executed by XXXXXX
COMPANY, a limited partnership, of which Xxxxxx X. Xxxxxxxxx and Bartecknon, a
limited partnership, are the General Partners (herein called "Landlord") and:
INTERNATIONAL BROADCASTING CORP.
(herein called "Tenant", without regard to gender or number).
WITNESSETH:
1. USE (NON-EXCLUSIVE). The Landlord hereby leases to Tenant and Tenant
hereby hires from Landlord certain premises with appurtenances described as
hereinafter set forth, and for no other use without Landlord's written consent,
for the purpose of conducting therein:
An Business Office for International Broadcasting Corp.
2. PREMISES. The premises leased to Tenant, together with appurtenances,
hereinafter referred to as the "premises," situated in the Shopping Center known
as Oak Knolls Village North located at the northeast corner of Xxxxxxx Road and
Xxxxx Avenue, Santa Maria, California and are more particularly described as
follows:
0000 XXXX XXXXX, XXXXX X
XXXXX XXXXX, XXXXXXXXXX 00000
With Approximately 1,200 Square Feet.
3. TERM. The term of this Lease shall be for a period of ONE (1) year,
commencing on APRIL 1, 2001 or on such earlier date as Tenant actually takes
possession of the premises, and ending on MARCH 31, 2002. Provided that if the
term of this shall commence on a dates other than the first day of a calendar
month then the term hereof shall be extended for the number of days between the
commencement date and the end of the month in which that date falls.
3. (a) OPTION TO RENEW. If this lease is not in default, and Tenant notifies
Landlord with an advance notice of 90 days prior to the end of this Lease,
Tenant shall have one Option to renew and extend this Lease with all Terms and
Conditions the same except for the minimum base rent for a period of ONE (1)
year. The monthly rent for this Option period shall be adjusted as per the rent
schedule in section # 4 below.
4. RENTAL: Base Rental: ONE THOUSAND AND THREE HUNDRED AND EIGHTY DOLLARS
($1,380) per month.
Option: Year 2 Rent to increase by the CPI-U
(Los Angeles index) for an inflation
adjustment but not greater than a 5%
increase. (if Option is exercised).
When exercised, this option period
would commence on April 1, 2002 and
end on March 31, 2003.
FIRST RIGHT OF REFUSAL Tenant to have the First Right of
Refusal to Lease space after the
option period expires. Landlord
agrees to present a lease offer on
February 1, 2003 not less than 3
years with not more than a 5%
increase in rent over the base
monthly rent paid to Landlord in the
option period.
1. Rent Commencing on April 1, 2001.
2. Guaranteed Minimum Monthly Rental. Tenant shall pay to Landlord as minimum
monthly rental for the premises, the sum of ONE THOUSAND AND THREE HUNDRED AND
EIGHTY DOLLARS ($1,380) per month which sum shall be paid in advance of the
commencement of the tem of this Lease and on the first day of each calendar
mouth thereafter throughout the term of this Lease. Said rental shall be
prorated for any partial calendar month of the term hereof. All rental to be
paid by Tenant to Landlord shall be in lawful money of the United States of
America and shall be paid without deduction or offset, prior notice or demand,
and at such place or places as may be designated from time to time by Landlord.
On execution and delivery of this Lease, Tenant shall pay Landlord ONE THOUSAND
AND THREE HUNDRED AND EIGHTY DOLLARS ($1,380) per month as minimum guaranteed
rental for the first mouth of the Lease term.
LATE RENT/NSF CHARGE: Tenant further agrees to pay a late charge equal
to ten percent (10%) of the monthly rental for all rents received after the 10th
of the month during the term hereof. Rent sent by mail must have arrived in
Landlord's office by the 10th to be exempt from late fee. Any checks returned
Non-Sufficient Funds and not cleared up by the 10th of the month will also be
subject to the 10% late rent charge. With the third NSF check in a 12 mouth
period, Landlord will require Tenant to pay rent or CAM payments with certified
bank checks.
TENANT'S INITIALS ___________
4. a (i) COST OF LIVING (INFLATION) ADJUSTMENTS.
The Consumer Price Index to be used is the Los Angeles-Long Beach-Anaheim
Consumer Price Index - all items, published monthly by the U.S. Department of
Labor, Bureau of Labor Statistics. If said Consumer Price Index is discontinued,
then the parties shall Substitute therefor any successor index supplied by the
U.S. Department of Labor which reflects consumer price levels and, if the
parties cannot agree on another index, it shall be determined by binding
arbitration.
5. SECURITY DEPOSIT. A security deposit of ONE THOUSAND THREE HUNDRED & EIGHTY
DOLLARS ($1,380) shall be due when this Lease is submitted to Landlord for it's
signatures; and shall be subsequently retained by the Landlord as a deposit to
secure the faithful performance by Tenant of all of the provisions of this
Lease. Tenant agrees that if the Tenant shall fail to pay the rent when said
rent is due, this security deposit may, at the option of the Landlord, be
applied to any rent due and unpaid, and if Tenant violates any of the other
terms, conditions or covenants of the Lease, the security deposit may be applied
to any damage suffered by Landlord as a result of Tenant's default to the extent
of the amount of damage suffered. Tenants shall immediately on demand pay to
Landlord the portion of the security deposit expended or applied by Landlord as
provided above. Although this security deposit amount equals the equivalent of
the initial term's one month's rent amount, Tenant understands and agrees that
the security deposit is not a rent payment nor is it rent in any form. Tenant
also agrees and understands that if this lease's minimum rent increases by the
CPI as stated in section 4A(i), then this security deposit shall increase by a
figure calculated according to this new rent amount. Tenant agrees to provide
the difference in this new rent amount less the amount of security deposit
already held by Xxxxxx Company.
Nothing contained in this article shall in any way diminish or be
construed to waive any of the Landlord's other remedies as provided by
paragraphs 21 and 22 or by law or in equity. The security deposit shall in no
event be applied to rental except at Landlord's option as herein provided. If
Tenant has fully and faithfully kept and performed all of the terms, covenants
and conditions of this Lease, then Landlord shall return the security deposit to
the Tenant upon expiration of the term hereof. Landlord shall have the right to
commingle said security deposit with other funds of the Landlord. Tenant
understands and agrees that interest will not be paid by Landlord to Tenant on
this deposit.
Landlord reserves the right to request another month's security deposit
if there are multiple late rents, returned checks with non-sufficient funds
and/or defaults.
6. REAL ESTATE TAXES. In addition to all rentals herein reserved the Tenant
shall pay to Landlord its proportional share of the annual increase in the
building's real estate taxes and assessment levied upon and assessed against the
premises for each year of the term of this Lease over and above the taxes for
the first year of the term hereof during which the premises, including the
improvements thereon, shall have been fully assessed for taxes as completed
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premises by the tax assessor's office. Such increase in taxes shall be payable,
if billed to Tenant, within thirty (30) days after the end of the calendar year
in which each of said fiscal tax years commenced and upon receipt by Tenant of a
statement in writing from Landlord setting forth the amount of such tax
increase. Landlord reserves the right to not xxxx Tenant annually for these
increases and can, upon election, xxxx these increases covering several previous
years at one time. Base tax increase xxxxxxxx not paid within thirty (30) days
after billing are subject to interest charges at the rate of ten (10%) percent
per annum.
Landlord agrees to attempt to have the premises separately assessed for tax
purposes, but in the event the premises are not so separately assessed, then and
in such event, the taxes on the premises shall be apportioned according to the
floor area of the premises, including mezzanines, if any, as it relates to the
total floor areas, including mezzanines, of the building or buildings, as the
case may be, for which a separate assessment shall be made, and which building
(or buildings) includes the premises.
Any such tax increase for the year in which this Lease ends shall be apportioned
and adjusted. With respect to any assessment which may be levied against or upon
the premises and which, under the laws then in force, may be evidenced by
improvement or other bonds, or may be paid in annual installments, Tenant shall
be required to pay each year only the amount of such annual installments or
portion thereof constituting a tax increase (with appropriate proration for any
partial year) and shall have no obligation to continue such payments after the
termination of this Lease.
The term "real estate taxes" as used herein shall be deemed to mean all taxes
imposed upon the real property and improvements constituting the premises, and
all assessments levied against said premises, but shall not include personal
income taxes, personal property taxes, inheritance taxes, or franchise taxes
levied against Landlord, but not directly against said property, even though
such taxes shall become a lien against said property.
7. PERSONAL PROPERTY TAXES. During the term hereof Tenant shall pay prior to
delinquency, all taxes assessed against and levied upon fixtures, furnishings,
equipment and all other personal property of Tenant contained in the premises,
and when possible, Tenant shall cause said fixtures, furnishings, equipment and
other personal property to be assessed and billed separately from the real
property of Landlord. In the event any or all of the Tenant's fixtures,
furnishings, equipment and other personal property shall be assessed and taxed
with the Landlord's real property, the Tenant shall pay to Landlord its share of
such taxes within ten (10) days after the delivery to Tenant by Landlord of a
statement in writing setting forth the amount of such taxes applicable to the
Tenant's property.
8. PARKING AND COMMON FACILITIES. Landlord covenants that the common and parking
areas as shown on the attached Exhibit "A" which is made a part hereof, shall be
kept intact and available for the non-exclusive use of Tenant during the full
term of this Lease or any extension of the term hereof, provided that the
condemnation, of any or all of such common and parking areas shall not
constitute a violation of this covenant. Landlord reserves the right to change
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the entrance, exits, traffic lanes, and the boundaries and locations of such
parking area or areas, provided, however, that anything to the contrary
notwithstanding contained in paragraph 8, said parking area or areas shall at
all times provide parking space for not less than 300 vehicles. 1.
1. Prior to the date of Tenant's occupation of the premises, Landlord shall
cause said common and parking area or areas to be graded, blacktopped, lighted,
and appropriately marked and landscaped, and shall cause same to be maintained
in good condition and repair during the entire term thereof.
2. Tenant, for the use and benefit of Tenant, its agents, employees, customers,
licensees and subtenants, shall have the non-exclusive right in common with
Landlord, and other present and future owners, tenants, and their agents,
employees, customers, licensees and subtenants, to use said common and parking
areas during the entire term of this Lease, or any extension thereof, for
ingress and egress, roadway, sidewalk and automobile parking.
3. The Tenant, in the use of said common parking areas, agrees to comply with
such reasonable rules and regulations as the Landlord may adopt from time to
time for the orderly and proper operation of said common and parking areas. Such
rules may include, but not be limited to, the following:
(1) The restricting of employee parking to a limited, designated area or
areas. Generally, Landlord requests that employees and proprietors do not park
in the first rows in front of the sidewalks. This allows the customers, clients
and patients of all the tenants easy access to their suites.
(2) "Service Areas" Tenant agrees that all receiving and delivery of goods and
merchandise and all removal of garbage and refuse shall be made only by way of
the loading areas or such portions of the parking areas as Landlord may
designate from time to time for such use by Tenant, and at such hours as may be
designated by Landlord from time to time.
(3) Garbage Guidelines: Tenant shall only use shopping center dumpsters for
garbage generated by their normal conduct of business. Garbage from a remodel of
the Tenant's space or from an unusual event shall be removed by Tenant
separately from the normal garbage put into the common dumpsters.
Any garbage from outside the shopping center brought to the center and dumped
into the common dumpsters, i.e. from the proprietor's or employee's residences,
is absolutely prohibited. Violations of this will result in a breach of lease
being issued.
(4) Pets: Because of County Ordinances and general health and safety concerns,
no personal pets will be allowed on shopping center property without the express
written permission of Landlord.
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(1) CONTRIBUTION OF TENANT TOWARD MAINTENANCE. Tenant shall pay to
Landlord as additional rental hereunder Tenant's pro-rata share of all expenses
of said common and parking area facilities and building common facilities for
1125 & 0000 X. Xxxxx. Tenant's pro-rata share of expenses shall be that portion
of all such expenses which is equal to the proportion thereof which the number
of square feet of floor area of the premises bears to the total number of square
feet of floor area in the entire Oak Xxxxx Village North Shopping Center for the
shopping center CAM and the building CAM which is equal to the proportion
thereof which the number of square feet of floor area of the premises bears to
the total number of square feet of floor area in the entire building located at
1125 & 0000 X. Xxxxx Xxx. For the last 24 months, the combined CAM for the
parking lots and the building have averaged $.20 per foot per month. This is a
pass-through charge of expenses and may increase or decrease each month.
It is understood old agreed the the expense of said common and parking
area facilities as used herein shall include, but not be limited to, all sums
expended by Landlord (excluding Landlord's overhead) concerning said common and
parking area facilities and all general maintenance and repair surfacing,
painting, restriping, cleaning, sweeping, and janitorial services, including
trash pick-up, directional signs and other markers, lighting and other
utilities, landscapmg and ornamental planting, real and personal taxes and
assessments, adequate public liability insurance (under which Tenant will be
named as additional insured) and all other things necessary to keep and maintain
said common and parking area facilities in a state of good and sanitary order,
condition and repair. Landlord shall keep and maintain accurate and detailed
records of all expenses of said common and parking area facilities and the same
shall upon demand be made available at reasonable times at the office of the
Landlord for the inspection by Tenant. Common facilities are due when billed.
Common facilities payments not received within thirty (30) days of the date of
billing are subject to a late payment charge equal to ten percent (10%) of the
amount billed.
"Floor Area" means, separately with respect to each building in the
shopping center and separately with respect to each area leased by any
particular lease executed by Landlord (including Tenant's premises), the
aggregate of the actual number of square feet of area within the exterior faces
of the exterior walls except party walls as to which the center thereof, instead
of the exterior, faces thereof, shell be used and except that the exterior
building line shall be used as to all exterior entrances of all floors. No
deduction or exclusion shall be made from floor area otherwise computed by
reason of columns, stairs, elevators, escalators, or other interior construction
or equipment within the premises.
9. USES PROHIBITED. Tenant shall not use, or permit said premises, or any part
thereof, to be used for any purpose or purposes other than the purpose or
purposes for which said premises are hereby leased; and no use shall be made or
permitted to be made of said premises, nor acts done, which will increase the
existing rate of insurance upon the building in which said premises will be
located (once said rate is established) or Cause a cancellation of any insurance
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policy covering said building or any part thereof, nor shall Tenant sell or
permit to be kept, used or sold in or about said premises any article which may
be prohibited by standard form of fire insurance policies. Tenant shall at his
sole cost, comply with any and all requirements pertaining to the use of said
premises, of any insurance organization or company necessary for the maintenance
of reasonable fire and public liability insurance, observing said building and
appurtenances. If any act or omission by Tenant causes Landlord's fire insurance
to increase, Tenant shall pay Landlord the cost of such increase.
10. ALTERATIONS. Tenant shall not make, or suffer to be made, any alterations of
the premises, or any part thereof, without the prior xxxxxx consent of Landlord,
and any additions to, except movable furniture and trade fixtures, shall become
at once a part of the realty and belong to Lessor. Lessee shall keep the leased
property free from any liens arising out of any work performed, material
furnished, or obligations incurred by Lessee.
Alterations, once approved by Landlord, must be done in compliance and
with all appropriate and legal building permits from the government agencies
including County and Fire. All to be done by licensed contractors within their
various trades.
TENANTS RESPONSIBILITIES:
1) Phones and Phone System;
2) Interior Janitorial Service & Window Cleaning.(Landlord cleans all the
common areas);
3) Security System (if needed);
4) Furniture & Fixtures.
5) Signs & Signage (Must conform to other center tenants style/design)
11. MAINTENANCE AND/OR REPLACEMENT AND REPAIR. Tenant shall, at all times during
the term hereof, and at Tenant's sole cost and expense, keep, maintain or repair
the suite and other improvements upon the premises in good and sanitary order
and condition (except as hereinafter provided with respect to Landlord's
obligation) including without limitation and regardless ofcause, the
maintenance, replacement and/or repair of any exterior (to your suite only) and
interior doors and locks, door jams, door hardware, door closers, windows
(exterior to your suite only), window casements, glazing; thermostats & service
calls related to merely the incompetent operation thereof, electrical fixtures,
lights & lighting fixtures (60 warranty included), electrical wiring and
conduits within the suite. Tenant hereby waives all rights to make repairs at
the expense of Landlord as provided in Section 1942 of the Civil Code of the
State of California and Tenant hereby waives all rights provided for by Section
1941 of said Civil Code. Tenant shall by no means assume to make repairs or
order repairs to be done and deduct the cost of such repairs from rent or common
area maintenance charges due. Such shortage of rent or CAM shall be deemed a
monetary breach of lease.
By entering into the premises, Tenant shall be deemed to have accepted
the premises as being in good and sanitary order, condition and repair. Tenant
agrees on the last day of said term, or sooner termination of the Lease, to
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surrender the premises with appurtenances in the same condition as when
received; reasonable use and wear thereof and damage by fire, act of God or by
the elements excepted. Tenant shall periodically sweep and clean the sidewalks
adjacent to the premises, as and when needed.
Landlord shall at his sole cost and expense, keep and maintain in good
repair the exterior walls, doors, windows, roof, Air-Conditioning and Heating
Systems and sidewalks, provided however, that anything to the contrary
notwithstanding contained in this Lease, the Landlord shall not be requested to
make any repairs to the exterior walls, roof and sidewalks unless and until
Tenant has notified Landlord in writing of the need for such repairs and
Landlord shall have had a reasonable period of time thereafter within which to
commence and complete said repairs. Landlord agrees to use diligence in the
making of said repairs upon receipt of Tenant's notice with regards thereto.
Notwithstanding the above, any damage to the exterior wall, roof and sidewalks
caused by Tenant, his employees or customers, shall be repaired by Tenant at his
cost.
The plumbing facilities shall not be used for any other purpose than
that for which they are constructed, and no foreign substance of any kind shall
be thrown in the plumbing facilities. The expense of any breakage, stoppage or
damage resulting from a violation of this provision shall be borne by Tenant.
12. COMPLIANCE WITH LAWS. Tenant shall, at his sole cost and expense, comply
with all of the requirements of all municipal, state and federal authorities now
in force or which may hereafter be in force pertaining to the use of said
premises and shall faithfully observe in said use all applicable laws,
regulations and ordinances now in force or hereafter be in force pertaining to
the use of said premises and shall faithfully observe in said use all applicable
laws regulations and ordinances now in force or hereafter be in force.
Tenant shall not commit, or suffer to be committed, any waste upon the
premises, or any nuisance or other act or thing which may disturb the quiet
enjoyment of any other Tenant in the building in which the premises may be
located or in the shopping center. This includes any sounds, smells or visual
byproducts of tenants business that are exported outside the tenants space.
NUISANCE: Tenant shall not commit, or suffer to be committed, any waste
upon the premises, or any nuisance or other act or thing which may disturb the
quiet enjoyment of any other Tenant in the building in which the premises may be
located or in the shopping center. This includes any sounds, smells or visual
byproduct of tenants business that are exported outside the tanant's space.
SOUNDS: Tenant agrees that he/she will control sounds in his/her suite
that may travel to an adjacent tenant. This may include radio or stereo music,
loud talking, arguing, noisy equipment, etc. Upon repeated complaints to
Landlord, tenant shall agree to pay for the cost of sound-proofing to mitigate
the noise or eliminate the source of the problem altogether.
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ODORS: Tenant agrees that he/she will control odors in his/her suite
that may travel to an adjacent tenant. This may include odors from smoking
(inside or outside if too close to neighboring tenant's door), cooking, etc.
Upon repeated complaints to Landlord, tenant shall agree to pay for the cost of
odor control equipment to mitigate the odors or eliminate the source of the
problem altogether.
13. INDEMNIFICATION OF LANDLORD-LIABILITY INSURANCE BY TENANT. Excepting where
damage or injury to any person or property on the premises at the express or
implied invitation of Tenant proximately results from the negligence of
Landlord, Tenant hereby waives all claims against Landlord for damage to doors,
door hardware, windows, window hardware, goods, wares and merchandise, in, upon,
or about said premises and for injuries to persons in or about said premises,
from any cause arising at any time including damage or injury from a burglary or
holdup or vandalism or rioting or looting; and Tenant will hold Landlord exempt
and harmless from any damage or injury to any person, or the goods, wares and
merchandise of any person; arising from the use of the premises by Tenant, or
fxom the failure of Tenant to keep the premises in good condition and repair, as
herein provided.
During the entire term of this Lease, the Tenant shall, at the Tenant's
sole cost and expense, but for mutual benefit of Landlord and Tenant, maintain
general public liability insurance against claims for personal injury, death or
property damage occurring in, upon, or about the premises and on sidewalks
directly adjacent to the premises. The limitation of liability of such insurance
shall not be less than five hundred thousand and no/100ths ($500,000.00) dollars
in respect to injury or death of one person, and to the limit of not less than
one million and no/100ths ($1,000,000.00) dollars in respect to any once
accident and to the limit of not less than two hundred fifty thousand and
no/100ths ($250,000.00) dollars in respect to property damage. All such policies
of insurance shall be issued in the name of Tenant and Landlord for mutual and
joint benefit and protection of the parties and shall contain cross-liability
endorsements. Such policies of insurance or copies thereof shall be delivered to
the Landlord and shall contain an endorsement requiring thirty (30) days written
notice from the insurance company to both parties before cancellation or change
in the coverage, people or amount of any policy.
14. FREE FROM LIENS. Tenant shall keep the premises and the property in
which the premises are situated free from any liens arising out of any work
performed, material furnished, or obligation incurred by Tenant.
15. ABANDONMENT. Tenant shall not vacate or abandon the premises at any time
during the term of this Lease, and if Tenant shall abandon, vacate or surrender
the premises or be dispossessed by process of law, or otherwise, any personal
property belonging to Tenant and left on the premises shall be deemed to be
abandoned, at the option of the Landlord, except such property as may be
mortgaged to Landlord.
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16. SIGNS AND AUCTIONS. Tenant shall not place or permit to be placed any
projecting sign, marquee or awning on the premises without the prior written
consent of Landlord. This includes any painting or posters on or in the windows.
Landlord shall have the right to approve the type and size, location and color
of all signs which Tenant desires to use or place in or upon the premises.
Tenant shall not display or sell merchandise outside the defined exterior walls
and permanent doorways of the premises. Tenant shall maintain the show windows
and signs in a neat and clean condition.
TENANTS INITIALS __________
Tenant shall not conduct or permit to be conducted, any sale by auction in, upon
or from the premises, whether said auction be voluntary, involuntary, pursuant
to any bankruptcy or other solvency proceeding.
17. SUBORDINATION. Tenant agrees that this Lease shall be subordinate to any
deeds of trust in the nature of mortgages that may hereafter be placed upon the
premises, to any and all advances made or to be made under them, to the interest
on all obligations secured by them, and to all renewals, replacements, and
extensions of them, provided, however, the beneficiary in such deeds of trust
shall recognize the Lease of Tenant in the event of foreclosure if Tenant is not
in default under the terms of the Lease. If any beneficiary elects to have this
Lease superior to its deed of trust and gives notice of its election to Tenant,
then this Lease shall be superior to the lien of any such deed of trust, whether
this Lease is dated before or after the deed of trust.
18. NEGATION OF PARTNERSHIP. Landlord shall not, in any way or for any
purpose, become a partner of Tenant, in its business or otherwise, or a joint
venturer, or a member of any joint enterprise with Tenant.
19. UTILITIES. Tenant shall before delinquency pay all charges for gas, heat,
electricity, power, telephone services and all other services of utilities used
in, upon or about the premises by Tenant or any of its subtenants, licensees, or
concessionaires during the term and any extension or renewal of the term of this
Lease.
20. INSPECTION. Tenant shall permit Landlord and his agents to enter into and
upon the premises at all reasonable times for the purpose of inspecting the same
or for the purpose of maintaining the building in which said premises are
situated, or for the purpose of making repairs, alterations or additions to any
other portion of said building, including the erection and maintenance of such
scaffolding, canopy, fences and props as may be required, for the purpose of
posting notices of non-liability for alterations, additions or repairs. This
also includes having the building or any portion thereof tented for the purpose
of fumigating the building for several days for various pests. Landlord shall be
permitted to do any of the above without any rebate of rent and without any
liability to Tenant for any loss of occupation or quiet enjoyment of the
premises hereby occasioned. Tenant sahll permit Landlord at any time within 100
days prior to the expiration of this Lease to place upon said premises any usual
or ordinary "For Lease" signs and during such 100 day period, Landlord or his
agents may, during normal business hours, enter upon said premises and exhibit
same to prospective Tenants.
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21. DEFAULT. In the event of any breach of this Lease by Tenant, the Landlord
shall notify the Tenant of such breach in writing and Tenant shall have ten (10)
days in which to cure any such breach as to payments of rent or other sums due
hereunder, and thirty (30) days to cure any other breach, and if Tenant shall
fail to cure such breach or default within such time limit, then Landlord,
besides other rights or remedies Landlord may have, shall have the immediate
right of re-entry and may remove all persons and property from the premises; and
such property may be removed and stored in a public warehouse or elsewhere at
the cost of, and for the account of, Tenant. Should Landlord elect to re-enter,
as herein provided, or should Landlord take possession pursuant to legal
proceedings or pursuant to any notice provided for by Law, Landlord may either
terminate this Lease or may from time to time, without terminating this Lease,
re-let said premises or any part thereof for such term or terms (which may be
for a term extending beyond the term of this Lease) and at such rental or
rentals and upon such other terms and conditions as Landlord in his sole
discretion may deem advisable with the right to make alterations and repairs to
said premises. Upon such re-letting, (a) Tenant shall be immediately liable to
pay to Landlord in addition to any indebtedness other than rent due hereunder,
the cost and expenses of such re-letting and of such alteration and repair
incurred by Landlord and the amount, if any, by which the rent reserved in this
Lease for the period of such re-letting (up to but not beyond the term of this
Lease) exceeds the amount agreed to be paid as rent for the premises for such
periods of such re-letting; or (b) At the option of Landlord, rents received by
such Landlord from such re-letting shall be applied as follows: First, to the
payment of any indebtedness, other than rent, due hereunder from Tenant to
Landlord; Second, to the payment of any costs and expenses of such re-letting
and of such alterations and repairs; Third, to the payment of rent due and
unpaid hereunder and the residue, if any, shall be held by Landlord and applied
in payment of future rent as the same may become due and payable hereunder. If
Tenant has been credited with any rent to be received by such re-letting under
option (a), and such rent shall not be promptly paid to Landlord by the new
Tenant, or if such rentals received for re-letting under option (b) during any
month be less than that to be paid during that month by Tenant hereunder, Tenant
shall pay any such deficiency to Landlord. Such deficiency shall be calculated
and paid monthly. No such re-entry or taking possession of said promises by
Landlord shall be construed as an election on Landlord's part to terminate this
Lease unless a written notice of such intention be given to Tenant or unless the
termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding any re-letting without termination, Landlord may at any time
elect to terminate this Lease for any breach, in addition to any other remedies
he may have, Landlord may recover from Tenant all damages incurred by Landlord
by reason of such breach, including the cost of recovering the premises, and
including the worth at the time of such termination of the excess, if any, of
the amount of rent and charges equivalent to rent reserved in this Lease for the
remainder of the stated term of this Lease over the then reasonable rental value
of the premises for the remainder of the stated term, all of which amounts shall
be immediately due and payable from Tenant to Landlord.
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21-A. CHRONIC DEFAULTS.
a) Tenant will be in "chronic Default" under this Lease if
Tenant commits more than three (3) defaults (either monetary or non-monetary
defaults) during any three hundred sixty-five (365) day period, even though
these defaults have been cured within the given period.
b) Definitions. For the purpose of defining a Default.
1. "Monetary Default" occurs if Tenant fails to
pay any sum of money when due (including, but not limited to, Base Rent,
Additional Rent, Percentage Rent, Common Area Maintenance Charges, Utility
Charges or other rent).
2. "Non-monetary Default" occurs if Tenant fails
to perform any of its obligations under this Lease other than the timely
payment of money including, but not limited to, the reporting of gross sales and
evidence of current Liability Insurance Rider, naming Xxxxxx Company as an
additional insured.
c) If a Chronic Default occurs as described above, Landlord,
at its option, shall have the right to terminate Tenant's Option to Extend this
Lease, First Right of Refusal and/or cancel the remaining terms of the Lease.
TENANTS INITIALS ____________
22. MAJOR DESTRUCTION OF PREMISES. In the event of (a) a partial destruction by
an earthquake or major fire or other major calamity or act of God upon said
premises or the building containing same during said term, or (b) said premises
or said building being declared unsafe or unfit for occupancy by an authorized
public authority for any reason other than Tenant's act, use or occupation,
which destruction or declaration requires repair to either said premises or said
building, Landlord shall forthwith make such repairs, provided such repairs can
be made within sixty (60) days after the occurrence of said partial destruction
or after said declaration by any authorized public authority and provided said
repairs can be made within said time period under the laws and regulations of
authorized public authorities, but such partial destruction (including any
destruction necessary in order to make repairs required by any such declaration)
shall in no wise annul or void this Lease, except that Tenant shall be entitled
to a proportionate reduction of minimum guaranteed rentals which such repairs
are being made, such proportionate reduction to be based upon the extent to
which the making of such repairs shall interfere with the business carried on by
Tenant in said premises; provided that in making such repairs Landlord may, at
his option (to be exercised within fifteen (15) days after said partial
destruction or declaration by authorized public authority) elect to make same
within a reasonable period of time, and provided Landlord uses due diligence in
making such repairs, this Lease shall continue in full force and effect and the
minimum guaranteed rental shall be proportionately reduced as herein above
provided. In the event repairs called for herein above in this paragraph 22
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cannot be made within the aforementioned sixty (60) days and in the event
Landlord does not elect to make same using due diligence and as herein above
provided, then this Lease shall be terminated as of the date Tenant completes
vacation from the premises, with all rentals to be prorated between Landlord and
Tenant as of said date. In respect to any partial destruction (including any
destruction necessary in order to make repairs required by any such declaration
of any authorized public authority) which Landlord is obligated to repair or may
elect to repair under the terms of this paragraph 11, the provisions of Section
1932, Sub-division (2) and Section 1933, Sub-division (4) of the Civil Code of
the State of California are waived by Tenant. Total destruction (including any
destruction required by any authorized public authority) of either said premises
or the building of which the premises are a part shall terminate this Lease.
23. CONDEMNATION. If the leased property or any part thereof be taken by
condemnation proceedings, or by settlement under the threat thereof, the Lessor
shall be entitled to and shall receive the entire award or payment therefor, and
Lessee shall assign, and does hereby assign to Lessor such award or payment as
may be made therefor including any damages whatsoever relating to Lessee's
leasehold interest therein.
If all of the leased premises are taken, the Lease will terminate. If
only a part of the demised premises is taken, then the Lease shall continue if
the balance is suitable for use and the rental herein reserved shall be
equitably apportioned.
The foregoing is without prejudice to Lessee's claim against the
condemning authority for loss of Lessee's trade fixtures, movable personal
property, and moving or relocation expenses.
24. ASSIGNMENT AND SUBLETTING. Tenant shall not assign this Lease or any
interest therein, and shall not sublet the premises or any part thereof, or any
right or privilege appurtenant thereto, or permit any other person to occupy or
use the premises, or any portion thereof, to anyone that would be prohibited in
use for the premises under section 1(a).
Tenant shall not assign this Lease or any interest therein, and shall
not sublet the premises or any part thereof, or any right or privilege
appurtenant thereto, or permit any other person (the agents and servants of
Tenant excepted) to occupy or use the premises, or any portion thereof, without
first obtaining the written consent of Landlord. Said consent shall not be
unreasonably withheld. Consent by Landlord to one assignment, subletting,
occupation or use by another person shall not be deemed to be a consent to any
subsequent assignment, subletting, occupation or use by another person. Consent
to an assignment shall not release the original named Tenant from liability for
the continued performance of the terms and provisions on the part of Tenant to
be kept and performed, unless Landlord specifically releases the original named
Tenant from said liability. Any assignment or subletting without the prior
written consent of Landlord shall be void, and shall, at the option of Landlord,
terminate this Lease. This Lease shall not, nor any interest therein, be
assignable, as to the interest of Tenant, by operation of law, without the prior
written consent of Landlord.
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Prior to the Landlord signing the Agreement to Assign or Sublet the
Lease, a processing and transaction fee of Two Hundred and Twenty-Five Dollars
($225) shall be paid to Landlord. This fee is waived for any affiliate of tenant
or business operated by or under the control of Xx. Xxxxx Xxxxxxx.
25. BANKRUPTCY OF TENANT. If the Tenant shall petition to be or be
declared bankrupt, the Landlord may immediately or at any time thereafter and
without further notice or demand, enter into and upon said premises or any part
thereof and take absolute possession of the same.
26. INSOLVENCY OF TENANT. Tenant agrees that in the event all or substantially
all of its assets be placed in the hands of a receiver or trustee, and in the
event such receivership or trusteeship continue for a period of ten (10) days,
or should Tenant make an assignment for the benefit of creditors, or be
adjudicated a bankrupt, or should Tenant institute any proceedings under any
state or federal bankruptcy act wherein Tenant seeks to be adjudicated a
bankrupt, or seeks to be discharged of its debts, or should any involuntary
proceeding be filed against such Tenant under such bankruptcy laws and Tenant
consents thereto or acquiesces therein by pleading or default, then this Lease
or any interest in and to the premises shall not become an asset in any of such
proceedings and, in any of such events and in addition to any and all rights or
remedies of Landlord hereunder or as provided by law, it shall be lawful for
Landlord at his option to declare the term hereof ended and to re-enter the
premises and take possession thereof and remove all persons therefrom and Tenant
shall have no further claim therein or hereunder.
27. SURRENDER OF LEASE. The voluntary or other surrender of this Lease by Tenant
or a mutual cancellation thereof, shall not work a merger and shall, at the
option Landlord terminate all or any existing subleases or sub-tenancies, or
may, at the option of Landlord, operate as an assignment to him of any or all of
such sub-leases and sub-tenancies.
28. SALE OF PREMISES BY LANDLORD. In the event of any sale of the premises by
Landlord, Landlord shall be and is hereby entirely freed and relieved of all
liability under any and all of its covenants and obligations contained in or
derived from this Lease arising out of any act, occurrence or omission occurring
after the consummation of such sale; and the purchaser, at such sale or any
subsequent sale of the premises, shall be deemed, without any further agreement
between the parties or their successors in interest or between the parties and
any such purchaser, to have assumed and agreed to carry out any and all of the
covenants and obligations of the Landlord under this Lease.
29. HOURS OF BUSINESS. Tenant shall continuously during the term hereof conduct
and carry on Tenant's business in the premises and shall keep the premises open
for business and cause Tenant's business to be conducted therein during the
usual business hours of each and every business day as is customary for
businesses of like character in the City of Santa Xxxxx. This provision shall
not apply if the premises should be closed and the business of Tenant
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temporarily discontinued therein on account of strikes, lockouts, or similar
causes beyond the reasonable control of Tenant, or closed for not more than
three (3) days out of respect to the memory of any deceased officer or employee
of Tenant, or the relative of any such officer or employee. Tenant shall keep
the premises adequately stocked with merchandise, and with sufficient sales
personnel to care for the patronage, and to conduct said business in accordance
with sound business practices.
30. ATTORNEY'S FEES. In case suit shall be brought for an unlawful detainer of
said premises, for the recovery of any rent due under the provisions of this
Lease, or because of the breach of any other covenant or condition herein
contained, on the part of Landlord or Tenant to be kept or performed, the losing
party shall pay to the prevailing party a reasonable attorney fee, which shall
be fixed by the court.
31. HOLDING OVER. Any holding over after the expiration of the term of this
Lease, with the written consent of Landlord, shall be construed to be a
tenancy from month to month at a rental of 120% of the last month's lease rental
rate.
32. NOTICES. Wherever in this Lease it shall be required or permitted that
notice and demand be given or served by either party to this Lease to or on the
other such notice or demand shall be given or serviced and shall not be deemed
to have been duly given or served unless in writing and either served personally
or sent by prepaid, registered or certified mail, addressed as follows:
TO LANDLORD AT:
0000 Xxxx Xxxxx Xxxxxx, Xxxxx X
Xxxxx Xxxxx, Xxxxxxxxxx 00000
TO TENANT AT:
0000 Xxxx Xxxxx Xxxxxx, Xxxxx X
Xxxxx, Xxxxx, Xxxxxxxxxx 00000
Notice shall be deemed communicated within 48 hours from the time of mailing, if
mailed as provided in this paragraph. Either party may change such address by
written notice to the other.
33. SUCCESSORS IN INTEREST. The covenants herein contained shall, subject to
the provisions as to assignment and subletting, apply to and bind the heirs,
successors, executors, administrators and assigns of all the parties hereto; and
all of the parties hereto shall be jointly and severally liable hereunder.
34. PARTIAL INVALIDITY. If any term, covenant or provision of this Lease is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the provisions hereof shall remain in full force and effect and
shall in no way be affected, impaired or invalidated thereby.
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35. MARGINAL CAPTIONS. The various headings and numbers herein and the
grouping of the provisions of this Lease into separate paragraphs are for the
purpose of convenience only and shall not be considered a part thereof.
36. TIME. Time is of the essence of this Lease. This blank and unsigned Lease,
as constituting an offer to Lease, if not delivered to Landlord and left
unsigned by Tenant longer than 30 days from the date of this Lease shall expire
as an offer and shall become null and void as a contract unless the date above
is extended by a written notice from Landlord.
37. AMERICAN WITH DISABILITIES ACT. on January 26,1992, new regulations under
Title III of the Americans with Disabilities Act ("ADA") became effective. The
provisions of ADA may require certain modifications, architectural barrier
removal if readily achievable, or steps to make the facilities and goods and/or
services provided therein available to the disabled by readily achievable
alternative methods in the shopping center. In that event, without intending to
suggest that any modifications or barrier removal efforts are required or
mandated by ADA, any such modifications shall be made as follows:
a. Lessor agrees to be responsible for the costs of compliance
and all other costs associated with the Americans with
Disabilities Act ("ADA") and any other laws and regulations
affecting or relating to access for the disabled to the
common area of the shopping center only, in accordance
with the provisions of Section 8 of the Lease, if required,
including, but not limited to, creating designated accessible
parking spaces, installing ramps, making curb cuts in
sidewalks and entrances, making exterior doors more
accessible, eliminating anything that would impede entry by
the disabled onto the Leased Premises and the shopping center
where the Leased Premises is located, and any other structural
changes or capital improvements thereto.
b. Lessee agrees to be responsible for the costs of compliance
and all other costs associated with ADA and any other laws and
regulations affecting or relating to access for the disabled
to the Leased Premises, if required, including, but not
limited to, internal door and bathroom modifications,
providing communications devices such as TDD's, telephone
handset amplifiers, assistive listening devices and digital
check-out displays, rearranging temporary or movable
structures, such as furniture, equipment and display racks,
and repositioning display racks and shelves.
x. Xxxxxx further agrees to defend, indemnify and hold harmless
Lessee, the Lessee, and all its officers, employees and agents
from any and all liability, loss, penalty, claims, damages,
injury, death or expense, including court costs and attorney's
fees, arising out of or connected in any way with any
obligations of Lessor under this paragraph.
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d. Lessee further agrees to defend, indemnify and hold harmless
Lessor and Lessor's lenders, if any, and all their officers,
employees, agents, assigns and/or successors, and each of
them, from any and all liability, loss, penalty, claims,
damages, injury, death or expense, including court costs and
attorney' s fees, arising out of or connected in any way with
any obligations of Lessee under this paragraph.
38. HAZARDOUS SUBSTANCES. Lessee expressly agrees not to discharge at any point
on the leased premises including into any public sewer, private sewerage
disposal system, street, parking lot, landscaped area, retention basin, or into
the ground, any materials of such nature or temperature as can contaminate any
water supply, interfere with bacterial processes in sewerage treatment or
otherwise cause the perpetuation, increase or dissemination of dangerous or
offensive elements, except in Public Health or such other governmental agency as
has jurisdiction of such activities. LESSEE shall comply with all federal, state
and local laws and all rules and regulations governing the use, storage and
disposal of any hazardous substance; all rules and regulations promulgated by
the Public Works Department, Fire Department or Building Department of the
County of Santa Xxxxxxx; and all rules and regulations governing the use,
storage and disposal of any hazardous substance promulgated by the State
Regional Quality Control Board for the central coast region and the Santa
Xxxxxxx County Health Care Services Department including, if required by the
County, applying for and obtaining a hazardous waste generator permit from the
County of Santa Xxxxxxx. For the purpose of this Lease, hazardous substance(s)
shall include but not be limited to substances defined as "hazardous
substances," "hazardous materials," or "toxic substances" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S. C. Section 9601, et seq.; the Hazardous Materials Transportation Act, 49
U.S.C. Section 1801, et seq.; the Resource Conservation and Recovery Act, 42
U.S. C. Section 6901, et seq.; and those California Health and Safety Code or as
"hazardous substances" in Section 25316 of the California Health and Safety
Code; and in the regulations adopted and publications promulgated to said laws.
39. ENTIRE AGREEMENT AND BINDING EFFECT. This Lease and any attached exhibits
signed by the parties constitute the entire agreement between Landlord and
Tenant; no prior written nor prior, contemporaneous or subsequent oral promises
or representations shall be binding. "Not Written-Not Said." This Lease shall
not be amended or changed except by written instrument signed by both parties
hereto.
40. LEASE SUBJECT TO TENANT'S BEING ABLE TO ACQUIRE HIGH SPEED INTERNET LINES &
ACCESS. If within 30 days of the last dated signature below, Tenant has not
acquired its high speed Internet access, Tenant may, at its option, declare this
lease null and void and of no legal effect. Landlord agrees to return the
security deposit and any unamortized rent back to Tenant
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41. BROKER REPRESENTATION. It is agreed that Xx. Xxxxxx Xxxxxxxxx of Pacifica
Realty has represented Tenant and will be paid a commission by the Xxxxxx
Company under a separate agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease.
LANDLORD: XXXXXX COMPANY, a Limited Partnership
XXXXXX X. XXXXXXXXX, General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxxx
Date: March 23, 2001
By: /s/ Xxxx Xxxxx
-----------------------------
Xxxx Xxxxx - for Barteckmon
Date: March 23, 2001
TENANT: INTERNAT10NAL BROADCASTING CORP.
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx, President
Date: March 23, 2001
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