EXHIBIT 10.4
THIS LEASE IS NOT TO BE CONSTRUED AS AN OFFER AND IS NOT BINDING ON BARRISTER
EXECUTIVE SUITES, INC. UNTIL IT IS SIGNED BY AN OFFICER OF BARRISTER EXECUTIVE
SUITES, INC.
LEASE AGREEMENT
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THIS LEASE is made on December 15, 1999 between Barrister Executive Suites,
Inc., a California Corporation (hereinafter referred to as "Lessor"), and
Naviant Inc. 00 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxxx XX 00000
(hereinafter referred to as "Lessee")
Lessor has entered into a master lease for the floor (the "Suite")
described below.
Floor or Suite Number: 7th Floor OR Suite 700
Name of Building: Encino Gateway
Address: 00000 Xxxxxxx Xxxxxxxxx
Xxxx and State: Xxxxxx, Xxxxxxxxxx, 00000
Lessee desires to lease from Lessor a certain portion of the Suite for the
purposes of conducting Lessee's business together with rights in common to the
"common areas" of the Suite.
In consideration of the covenants and promises each to the other made
herein, the parties hereto agree as follows:
1. LEASED PREMISES. Lessor agrees to lease to Lessee and Lessee agrees to
lease from Lessor portions of the Suite described below (the "Premises") and on
the floor plan attached hereto as Exhibit A. In addition to the exclusive use of
the Premises, Lessee shall have the non-exclusive right in common with Lessor's
other lessees to use all common areas and facilities available in the Suite.
Except as otherwise agreed to in writing, Lessee takes the Premises in an "as
is" condition.
(a) Office No(s). 33
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(b) Desk Space No(s). N/A
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Lessee shall be prohibited from using or occupying any premises other than
those premises designated in this Lease as the Premises. In the event that
Lessee uses or occupies any space other than the Premises without Lessor's
written consent, Lessee shall pay Lessor a sum designated by Lessor for the
unauthorized use of said space.
2. TERM. Except as it may be modified by the applicable provisions of
this Agreement, the term of this Lease shall be for a period of ** months,
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commencing on December 15, 1999 and expiring on June 30, 2000. If the term
commences on a day other than the first of the month, the term shall expire on
the last day of the month identified herein, provided at least two (2) full
calendar months advance written notice of termination has been provided to
Lessor in the manner described in section 3 of this Lease.
In the event the Premises are not ready for occupancy on the commencement
date, this Lease shall remain in full force and effect provided Lessor makes the
Premises available for occupancy within forty-five (45) days of the scheduled
commencement date. In such case, all rent shall be abated until Lessor makes the
Premises available for occupancy. Lessor shall not be liable to Lessee for any
loss or damage arising from any delays; Lessee's sole
* See Page 1A
** six months plus (17) seventeen days.
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remedy shall be the right to cancel this Lease in the event Lessor fails to
deliver possession of the Premises as set forth herein. Lessee is advised that
any floor plans provided by Lessor are not to scale, the measurements are not
always accurate, and the Premises are not always built exactly as shown on the
floor plans.
3. LEASE TERMINATION. Either party may terminate this Lease at the
expiration date set forth herein by giving two (2) calendar months advance
written notice effective on the expiration date set forth on page one (1) of
this Lease. If neither party sends written notice of termination to the other
party two (2) calendar months in advance of the expiration date, this Lease
shall automatically become a month-to-month agreement REQUIRING AT LEAST TWO (2)
FULL CALENDAR MONTHS ADVANCE WRITTEN NOTICE TO TERMINATE THE LEASE, EFFECTIVE
THE END OF THE SECOND FULL CALENDAR MONTH. IF THE LEASE HAS EXPIRED AND BECOME A
MONTH-TO-MONTH AGREEMENT, OR IF THE ORIGINAL TERM OF THE LEASE WAS MONTH-TO-
MONTH, TWO (2) FULL CALENDAR MONTHS ADVANCE WRITTEN NOTICE OF TERMINATION IS
REQUIRED, AND ANY SUCH TERMINATION SHALL ONLY BE EFFECTIVE THE END OF THE SECOND
FULL CALENDAR MONTH. FOR EXAMPLE: IF WRITTEN NOTICE OF TERMINATION IS RECEIVED
BY EITHER PARTY BY APRIL 30/TH/, ANY SUCH NOTICE SHALL BE EFFECTIVE JUNE 30/TH/.
IF WRITTEN NOTICE OF TERMINATION IS RECEIVED BY EITHER PARTY ON MAY 1/ST/ OR ANY
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LATER DATE IN MAY, ANY SUCH NOTICE SHALL NOT BE EFFECTIVE UNTIL JULY 31/ST/.
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Lessor's rent increase notice is not to be construed as a termination notice.
All notices must be given pursuant to section 13.
If Lessee fails to vacate the Premises for any reason after the
termination date or purports to rescind the termination notice after Lessor has
already leased Lessee's terminated space, Lessee will pay the rent the new
tenant had agreed to pay, plus any and all resulting damages and losses incurred
by Lessor because the new tenant cannot move into the space previously
terminated by Lessee.
4. RENT. Lessee agrees to pay Lessor as rental for the Premises the
following monthly sums:
$ 2,025.00 Office(s)
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$ N/A Desk space(s)
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$ N/A Telephone Equipment and Service
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$ N/A Voicemail Box(es)
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$ 350.00 Furniture Rental (See Page 2A)
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$ 2,375.00 Total monthly rent
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In addition to the above rent, Lessee shall be obligated to pay rent
for any space within the Suite which Lessee occupies but which is not included
in the Premises (the "unrented space"). Lessee's obligation for said unrented
space shall be at the rate set forth in Lessor's written notice to Lessee
concerning Lessee's occupancy of the unrented space. Lessee's obligation to pay
rent for the unrented space shall be effective as of the date in which Lessor
gives Lessee written notice of the rent to be paid for said space, and occupancy
of the unrented space shall be subject to all terms and conditions of this
Lease.
The terms and conditions of this Lease are confidential, and Lessee agrees not
to reveal said terms and conditions to any third parties. Lessee's disclosure
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of the terms and conditions of this Lease shall be cause for Lessor at Lessor's
sole discretion to immediately terminate this Lease, or increase Lessee's rental
rates to Lessor's current asking price.
Rent shall be payable on or before the first day of each and every calendar
month during the term hereof. If the term commences on a day other than the
first day of the calendar month, rent shall be prorated based on the portion of
the calendar month remaining. Lessee's first payment shall include one month's
full rent, plus any partial calendar month's rent for the first month of the
Lease, plus the last month's rent, plus the security deposit and a set-up fee of
$150.00. At all times Lessee shall maintain the last month's rent with Lessor in
an amount equal to one (1) times the monthly rent paid by Lessee for the
Premises.
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LESSEE'S MONTHLY RENT INCLUDES THE FOLLOWING RENTAL FURNITURE:
(3) Three Summit Standard desks with returns
(3) Three Herringbone Ergo Chairs
(1) One two drawer lateral file cabinet
(1) One 30" Bookcase
The cost of the above furniture is $350.00 per month and Lessee shall be charged
a one-time $40.00 charge to cover delivery and pickup of the rental furniture.
Lessee agrees not to remove any of said furniture from the Leased Premises. If
Lessee damages or removes any of the furniture, Lessor shall charge Lessee for
the cost of repair and/or replacement, and reserves the right to retain an
appropriate amount of Lessee's security deposit to cover any such charges when
Lessee moves out.
In addition to all other rights and remedies provided for in this Lease, Lessor
or its designated agent, may enter the Leased Premises (upon 24 hours notice)
for the purpose of removing, the rental furniture if Lessee's rent (which
includes the monthly furniture rental charge) remains unpaid for more than
thirty (30) days. Lessee shall indemnify and hold harmless Lessor, Lessor's
agents and Lessor's employees from and against any and all claims and/or damage
to personal property that may arise as a result of Lessor's removal of the
rental furniture.
In the event that Lessee wishes to cancel the above-referenced furniture rental
after ninety (90) days of use, Lessee has the option to give a thirty day
written notice to Lessor, effective the end of the month. Lessor will then make
all the necessary arrangements to have the furniture picked up.
In the event Lessee does exercise its option to cancel the rental furniture,
Lessor will deduct the cost of renting the furniture from Lessor's monthly rent
obligation, commencing the first month after the thirty day notice of
cancellation has been given.
Lessee agrees that the above furniture shall be rented for a minimum of 90 days.
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In addition to payment of the rent set forth herein, Lessee agrees to the
following: from any payment made by Lessee, Lessor shall first apply such sums
as are necessary to meet any of Lessee's outstanding obligations to Lessor. Said
obligations may arise from matters such as services Lessor provides Lessee. Any
remaining balance shall then be applied to Lessee's rent obligation in the
amount set forth above. In the event such remaining balance is not sufficient to
meet Lessee's rental obligation, Lessee shall pay upon written demand by Lessor
any remaining sums due. Failure to pay said sums when so demanded shall
constitute an event of default under this Lease.
Any and all sums Lessee is obligated to pay under the terms of this Lease
shall be construed as rent obligations in addition to the monthly rent set forth
herein. Such additional rent shall include a service charge of Fifty Dollars
($50.00) for each of Lessee's dishonored checks returned by the institution on
which said checks are drawn. If at any time during the term of this Lease Lessee
has tendered payment by check and Lessee's bank returns more than one such
payment for any reason including insufficient funds, Lessor may, at its option,
require all future payments be made by cashier's check. A Two Hundred Dollar
($200.00) handling charge for each Three Day Notice or Notice of Termination of
Services which Lessor is required to serve upon Lessee due to Lessee's failure
to make timely rent payments or breach of any other term or condition of this
Lease shall be assessed against Lessee to be paid with the monthly rent in the
event more than one of either notice is served during the term of the Lease. A
Seven Hundred Fifty Dollar ($750.00) handling charge will be further assessed
against Lessee in the event that Lessee does not render payment after service of
a Three Day Notice and Lessor then serves Lessee with an Unlawful Detainer
Action. Should Lessee not tender payment of the rent by the first (1st) business
day of each month, a late charge shall be assessed in an amount of five cents
(0.05) for each dollar ($1.00) so overdue for the purpose of defraying the
expense incident to handling such delinquent payment. In addition, Lessor may
discontinue any and all services provided Lessee, including, but not limited to,
use of all common areas, e.g., library and conference room, telephone answering
service, photocopying, word processing, fax and legal research. Should Lessor
discontinue any services above for non-payment, an administrative fee of One
Hundred Dollars ($100.00) will be assessed to reinstate said services. Lessee
hereby releases Lessor, its employees, agents, principals and contractors from
any liability for damages which Lessee may suffer as a result of Lessor's
suspension of services for the reasons stated herein.
5. SECURITY DEPOSIT. Upon execution of this Lease by Lessee, Lessee will
pay a security deposit in an amount of $2,625.00 which is equal to one (1) times
the monthly rent plus a services deposit of Two Hundred Fifty Dollars ($250.00)
as security for the performance by Lessee of its obligations under this Lease.
The security deposit will not be interest-bearing to Lessee. Lessor will retain
the security deposit during Lessee's tenancy. Lessee shall not apply the
security deposit as rent. If Lessee remains in the Premises after the expiration
date of this Lease, the security deposit will be retained by Lessor until Lessee
moves out of the Premises. Lessor may claim and retain such amount of Lessee's
security deposit as is reasonable necessary to remedy any defaults of the Lessee
in the payment of rent or services, to repair damages to the Premises caused by
the Lessee, replacement of keys and any other outstanding obligations to Lessor,
and Lessor may, at its option and at any time during the term of this Lease,
treat the security deposit as a partial payment applied toward Lessee's
obligation for the Premises during Lessee's last month of occupancy of the same.
The parties expressly agree that the security deposit is made for all of the
aforesaid specific purposes. At all times Lessee shall maintain a security
deposit with Lessor in an amount equal to one (1) times the monthly rent paid by
Lessee for the Premises rent plus a services deposit of Two Hundred Fifty
Dollars ($250.00). Lessor shall xxxx Lessee for any such additional security
deposit as required. Lessor will refund Lessee's security deposit less any
offsets as set forth in this paragraph, approximately thirty (30) days after
Lessee's tenancy has terminated and Lessee's has vacated, returned keys and
removed any and all items of personal property from the Premises.
6. USE Lessee shall use the Premises solely for marketing & management,
and for no other purpose. Lessee shall not do or permit anything to be done in
or about the Suite and Premises which will in any way obstruct or interfere with
the rights of other tenants or occupants of the Suite, or injure or annoy them,
or use or allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Lessee cause, maintain or permit any nuisance
in, on or about the Premises. Lessee shall not commit or suffer to be committed
any waste in or upon the Premises. Lessee agrees that Lessee will not offer or
use the Premises to provide to others, services provided by Lessor to Lessor's
other lessees. (I.E. Fax Machines, Copiers, etc.). If Lessee leases one or more
desk spaces, no desk space may be occupied by more than one person. Lessee
agrees that no office shall be occupied by more than two (2) persons without the
prior written consent of Lessor. Only two (2) computers or similar electronic
devices are allowed to be located in each office and not more than one in each
desk space. Lessor will provide all
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photocopy and fax services for the Premises and Lessee shall not be permitted to
install any fax or photocopy machines in the Leased Premises.
7. DEFAULTS AND REMEDIES.
Lessee's Defaults. Any of the following defaults shall constitute a
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material default by Lessee:
(a) If Lessee fails to make any payment of rent, additional security
deposit or any other payment required to be made by Lessee hereunder, as and
when due.
(b) If Lessee withholds rent deducts or offsets from rent or services
due hereunder any amount for any reason.
(c) If Lessee occupies, uses or stores any personal property in any
unrented office in the Suite, or stores any personal property in any unrented
desk space or unrented office in the Suite, or stores any personal property in
any common area.
(d) If Lessee fails to observe or perform any of the provisions of
this Lease, where such failure shall continue for a period of ten (10) days
after written notice thereof from Lessor to Lessee.
If Lessee defaults under this Lease, (i) Lessor may terminate this
Lease, (ii) Lessor may recover, in addition to any rent and other charges
already due and payable, all rent for the entire unexpired balance of the stated
term of this Lease and all costs incurred by Lessor to recover such sum from
Lessee, including reasonable attorneys fees and/or Lessor may recover damages
from Lessee. All rights and remedies of Lessor under this Lease shall be
cumulative and in addition to any other rights or remedies available at law or
in equity. No failure by Lessor to exercise any right or waiver of such default
by Lessor. (iii) Lessor may terminate all services provided Lessee, including,
but not limited to, use of all common areas, e.g., library and conference room,
telephone answering service, photocopying, word processing, fax and legal
research.
8. HIRING LESSOR'S EMPLOYEES. Lessor spends a great deal of time to hire
and train employees for the operation of the Suite and other suites. Lessee
derives the benefit of Lessor's experience in operating the Suite and of such
hiring and training procedures. Lessee realizes the time and expense Lessor
incurs to obtain personnel, and Lessee therefore agrees not to offer or accept
for hire any of Lessor's employees at any time during the term or any extension
or renewal of this Lease. "Lessor's employees" include Lessor's employees during
the period of their employment with Lessor and for a period of one hundred
eighty (180) days thereafter. Lessor and Lessee have considered the matter and
have reasonably endeavored to estimate the actual damages to Lessor in the event
Lessee breaches this provision and offers or accepts for hire any of Lessor's
employees, and both realizing that it would be impractical or extremely
difficult to fix the actual damage to Lessor resulting from such offer or hiring
of Lessor's employees, Lessor and Lessee therefore agree that if Lessee offers
or accepts for hire any of Lessor's employees at any time during the term or any
extension of renewal of this Lease, or within one hundred eighty (180) days
after Lessee moves out of Lessor's offices, Lessee agrees to pay Lessor the sum
of Five Thousand dollars ($5,000.00) for the employee so hired to compensate
Lessor for Lessor's loss in hiring and training said employee. Said sum
represents the amount agreed upon by the parties as Lessor's liquidated damages.
9. INSURANCE. Lessor has blanket liability insurance coverage for the
common areas in the Suite. Lessor's insurance does not cover the Lessee's
Premises or Lessee's property in the Suite and Premises. Lessor shall not be
liable to Lessee, or to any other person, for any damages or business
interruption on account of loss, damage, fire or theft of any personal or
business property, including, but not limited to, property left with the floor
receptionist or telephone operators, door lettering or other property purchased
by, or belonging to, Lessee.
Lessee shall indemnify and hold harmless Lessor from and against any
and all claims arising from Lessee's use of the Premises, or from the conduct of
Lessee's business or from any activity, work or things done, permitted or
suffered by Lessee in the Premises and shall further indemnify and hold harmless
Lessor from and against any and all claims arising from any breach or default in
the performance under the terms of this Lease, or arising from any negligence of
the Lessee or any of Lessee's agents, contractors, visitors, or employees, and
from
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and against all costs, attorney's fees, expenses and liabilities incurred in the
defense of any such claim or any action or proceeding brought thereon, and in
case any action or proceeding be brought against Lessor by reason of any such
claim, Lessee upon notice from Lessor shall defend the same at Lessee's expense
by counsel satisfactory to Lessor and Lessor's landlord. Lessee, as a material
part of the consideration to Lessor and Lessor's landlord, hereby assumes all
risk of damage to property or injury to persons in the Premises and Lessee
hereby waives all claims in respect thereof against Lessor.
Lessee shall maintain a policy (issued by a company reasonably
acceptable to Lessor) of comprehensive general liability insurance with a
combined single limit of not less than $1,000,000 insuring against all liability
of Lessee and its agents arising out of Lessee's use or occupancy of the
Premises and including contractual liability coverage for the indemnification
obligations of Lessee under this lease. This policy of insurance shall name the
Lessor as an additional insured and shall include cross liability endorsements
in favor of the Lessor. Lessee's insurance shall be primary and non contributing
with any insurance carried by Lessor, and shall contain an endorsement requiring
at least sixty (60) days prior written notice of cancellation to Lessor. Lessee
shall deliver a certificate of insurance to Lessor prior to taking occupancy of
the Premises and shall provide evidence of renewed insurance coverage prior to
the expiration of any policies. No insurance required or obtained by Lessee
hereunder shall limit any liabilities or obligations of Lessee to Lessor under
this Lease.
10. COMMON AREA. All areas not designated for exclusive use of tenants or
available for lease to prospective tenants constitute the Suite's common areas.
Lessee shall have the non-exclusive right of access and use of the common areas
and facilities contained therein. Conference room(s) may be used on a
reservation basis only subject to Lessor's rules and regulations governing use
of the same (see section 9 of exhibit D).
11. MASTER LEASE. Lessee shall have no greater rights to the use and
occupancy of the Suite and Premises than Lessor has with the Building under
Lessor's Master Lease; in particular, Lessee's term under this agreement shall
not be greater than Lessor's term under the Master Lease. Lessee is bound to
Lessor in the same manner as Lessor is bound to the Building with respect to all
standard lease provisions (e.g., eminent domain, destruction of building, etc.),
as well as the rules and regulations of the Building attached hereto as Exhibit
C.
Termination of the Master Lease shall terminate this Lease and all of Lessor's
obligations hereunder. If Lessor's interest is so terminated, Lessee shall, at
the option of Lessor's landlord, attorn to Lessor's landlord and recognize
Lessor's landlord as Lessor under this Lease. Lessee shall execute and deliver
at any time when requested by Lessor's landlord an instrument to evidence such
attornment. Lessee waives the provision of any law which may give Lessee any
right of election to terminate this Lease or to surrender possession of the
Premises by reason of the termination of the Master Lease. This paragraph does
not obligate Lessee in any way to the Master Lessor of the Building or to anyone
else, for anyone else's rent, or any payment whatever, except as expressly set
forth in this Lease.
At any time, Lessor may terminate this Lease upon sixty (60) days written notice
to Lessee in the event that Lessor's interest in the Master Lease is terminated.
In the event Lessor's interest in the Master Lease is terminated, Lessee shall,
at the option of Lessor's landlord, attorn to Lessor's landlord or Lessor's
landlord's designee, and recognize Lessor's landlord or Lessor's landlord's
designee as Lessor under this Sublease. Lessee shall execute and deliver at any
time when requested by Lessor's landlord an instrument to evidence such
attornment. In no event however, shall Lessor's landlord or Lessor's landlord's
designee be liable for any previous act or omission by Lessor under this
Sublease, or for the return of any advance rental payments or deposits under
such agreements that have not been actually delivered to Lessor's landlord or
Lessor's landlord's designee, nor shall Lessor's landlord or Lessor's landlord's
designee be bound by any modification to any such agreements executed without
Landlord's consent or for any advance rental payments in excess of one month's
rent. Lessee waives the provision of any law which may give Lessee any right of
election to terminate this Lease or to surrender possession of the Premises by
reason of the termination of the Master Lease.
12. SUBLETTING. Lessee shall not sublet or assign the Premises or any part
thereof for any period of time. Any subletting or assignment of this Lease which
is not in compliance with the provisions of this paragraph shall be void and
shall, at the option of Lessor, terminate this Lease. In such event, Lessee
shall be liable for any expenses Lessor may incur in regaining possession of the
Premises or so much of the Premises as Lessee may have subleased or assigned
without Lessor's consent
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13. NOTICE TO LESSOR. Any notice regarding a breach of this lease or
termination thereof shall be in writing and sent by certified mail or personal
delivery to Barrister Executive Suites, Inc., Attention: Lease Termination
Department, 0000 Xxxxxxx Xxxx., Xxxxx 0000, XX, XX 00000 (in the case of
Lessor), or to Lessee c/o the address of the Premises (in the case of Lessee).
Certified mail notice shall be deemed given forty-eight (48) hours after the
date it is placed, postage prepaid, in a depository for United States mail.
PERSONAL DELIVERY TO THE FLOOR MANAGER, RECEPTIONIST OR TELEPHONE OPERATOR DOES
NOT CONSTITUTE NOTICE TO LESSOR. Either party may provide for a different
address by notifying the other party of said change as provided for herein.
14. SUBSTITUTION. At any time after the execution of this Lease, Lessor
may substitute for the Leased Premises other premises elsewhere in the suite or
in another Barrister Suite (the "New Premises") in which event the New Premises
shall be deemed to be the Leased Premises for all purposes hereunder, provided:
(a) The New Premises shall be similar in area and appropriateness for
Lessee's purposes in Lessor's reasonable determination; and
(b) If Lessee is occupying the Leased Premises at the time of any
such substitution, Lessor shall pay the reasonable out of pocket, third party
expense of moving Lessee, its property and equipment to the New Premises.
15. RULES AND REGULATIONS. Lessee shall observe at all times Lessor's
Rules and Regulations, a copy of which is attached hereto as Exhibit D.
16. REPAIRS. The landlord which leases the Suite to Lessor is responsible
for construction of the building, parking garage or lot, and repairs to
elevators, air conditioning, electrical, plumbing and structural supports under
the Master Lease. Lessor is not liable to Lessee by reason of any defect,
inadequacy or insufficiency in same. Lessee may not deduct or offset any amount
from rent due herein because of any problem regarding construction, access to
services, repairs or lack thereof. Lessor will coordinate any repair or
complaint of Lessee. However, any claim by Lessee with respect thereto shall be
made solely against the Building and Lessor hereby assigns to Lessee, solely for
the purpose of making and prosecuting any such claim, all rights which Lessor
has under the Master Lease. Lessor will coordinate all repairs for dangerous
conditions existing in the common areas within the Suite. Lessee is responsible
for, and shall indemnify and hold Lessor harmless from and against, any damage
to persons or property caused by Lessee, or Lessee's employees, agents, clients,
guests or invitees, as well as any business interruption, lost business or
income caused by phone system problems, long distance and local phone service
problems, photocopier problems, and/or fax machine problems.
17. RIGHT OF ENTRY. If Lessee has given notice to terminate or Lessee is
in default of rental payments, or if Lessee is on a Month-to-Month Lease,
Lessor's employees may show the Premises to prospective tenants between 9:00
a.m. and 6:00 p.m., Monday through Friday. If during the last month of the term
Lessee shall have removed all or substantially all of Lessee's property, Lessor
may immediately allow anyone else to occupy the Premises without relieving
Lessee of liability for rent for that period of time unless Lessor receives
rental income from Lessee's space, in which event such payment shall be credited
against Lessee's rent obligation for the period of time the space is occupied by
someone else.
18. UTILITIES, SERVICES, MAINTENANCE AND CONSTRUCTION. Under Lessor's
Master lease, the Building provides utilities, services (janitorial, heat and
air conditioning) and maintenance. Janitorial services include carpet vacuuming,
but not shampooing. Heat and air conditioning is provided during generally
recognized business days and hours. Lessee is allowed access to the Premises
twenty-four (24) hours a day, seven (7) days a week, subject to the Building's
rules requiring proper identification after normal business hours. Lessor is not
liable to Lessee by reason of any failure to provide or the inadequacy of
utilities, janitorial, heat or air conditioning services, parking, elevators, or
maintenance. Lessor is not responsible for any negligence of the Building's
agents or employees. Lessee may not deduct or offset any amount from rent due
herein because of any problem regarding utilities, heat, air conditioning,
parking, elevators, janitorial services, maintenance services or defective
construction of Premises. Upon request by Lessee, Lessor will write the Building
regarding any complaint by Lessee regarding utilities, heat, air conditioning,
janitorial services, maintenance or construction; however, any claim by Lessee
with respect thereto shall be made by Lessee directly to the Building, and
Lessor hereby assigns to
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Lessee, solely for the purpose of making and prosecuting any such claim, all
rights which Lessor has against the Building under the Master Lease. Lessor is
responsible for maintaining the common areas within the Suite, however, Lessor
is not responsible for maintaining, repairing or cleaning the floor covering
wall covering or drapes/window blinds within Lessee's Premises, other than the
normal janitorial service provided by the Building. Non-recurring operating and
capital improvements may be passed on to the Lessee.
19. ATTORNEY'S FEES. In the event legal proceedings to regain possession
of the Premises or to collect moneys owed are instituted because of Lessee's
failure to pay rent, security deposit, cost of repair of the Premises or to cure
any breach of this Lease by Lessee, the prevailing party shall be entitled to
recover as an element of his cost of suit, and not as damages, reasonable
attorney's fees to be fixed by the court. The "prevailing party" shall be the
party who is entitled to recover his costs of suit, whether or not the suit
proceeds to final judgment. The party not entitled to recover his costs shall
not recover attorney's fees. No sum for attorney's fees shall be counted in
calculating the amount of a judgment for purposes of determining whether a party
is entitled to recover his costs of attorney's fees.
20. ENTIRE AGREEMENT, MERGER AND WAIVER. This Lease Agreement supersedes
and cancels any and all previous negotiations, arrangements, offers, brochures,
agreements or understandings, if any, between the parties hereto. This Lease
Agreement expresses and contains the entire agreement of the parties hereto and
there are no expressed or implied representations, warranties or agreements
between them, except as herein contained. This Lease Agreement may not be
modified, amended or supplemented except by a writing signed by both Lessor and
Lessee. No consent given or waiver made by Lessor of any breach by Lessee of any
provision of this Lease Agreement shall operate or be construed in any manner as
a waiver of any subsequent breach of the same or of any other provision.
21. CONFLICT OF INTEREST. Lessee agrees that a conflict of interest would
be created if Lessee were to represent or act as Legal counsel for the
employees, officers, vendors, contractors, landlords and/or tenants of Lessor.
Therefore, so long as Lessee is a tenant of Lessor, Lessee shall be prohibited
from representing Lessor's employees, officers, vendors, contractors, landlords
and/or tenants in any legal action or lawsuit which involves Lessor, or Lessor's
Managing Agent (if applicable). Failure to comply with this provision shall
constitute an event of default under the Lease and shall be cause for Lessor to
terminate this Lease.
NAVIANT, INC. BARRISTER EXECUTIVE SUITES, INC.
LESSEE LESSOR
/s/ Xxxxxxx Xxxxx /s/ Xxxxxxxx G
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Xxxxxxx Xxxxx, CFO
Date: 12/13/99 Date: 12-17-99
*YOUR SIGNATURE IS ALSO REQUIRED ON PAGE 6 OF EXHIBIT D*
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EXHIBIT A
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[DIAGRAM]
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EXHIBIT B
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Not applicable to this Lease Agreement.
EXHIBIT D
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BARRISTER EXECUTIVE SUITES, INC.
RULES AND REGULATIONS
ATTACHED AND MADE A PART OF LEASE
Lessor has adopted these Rules and Regulations for the purpose of assuring
Lessee of the quiet enjoyment of the Suite. Lessee agrees to abide by the Rules
and Regulations so long as Lessee remains in occupancy of the Premises.
1. COMMON AREAS. The sidewalks, hallways, passages, exits,
entrances, elevators, escalators and stairways shall not be obstructed by Lessee
or used by him for any purpose other than for ingress to and egress from the
Premises. The halls, passages, exits, entrances, escalators and stairways are
not for the use of the general public and Lessor shall in all cases retain the
right to control and prevent access thereto by all persons whose presence in the
judgment of Lessor shall be prejudicial to the safety, character, reputation and
interests of the suite and its lessees, provided that nothing herein contained
shall be construed to prevent such access to persons with whom Lessee normally
deals in the ordinary course of such Lessee's business unless such persons are
engaged in illegal activities.
2. DISPLAY OF SIGNS. No sign, placard, picture, name, advertisement
or notice, visible from the exterior of the Premises shall be inscribed,
painted, affixed or otherwise displayed by Lessee on the Premises or any part of
the building without the prior written consent of Lessor, and Lessor shall have
the right to remove any such sign, placard, picture, name, advertisement or
notice without notice to and at the expense of Lessee. Lessor's consent, whether
before or after the execution of the Lease, shall in no way operate as waiver or
release of any of the provisions hereof or of the Lease, and shall be deemed to
relate only to the particular sign, placard, picture, name, advertisement or
notice so consented to by Lessor and shall not be construed as dispensing with
the necessity of obtaining the specific written consent of Lessor with respect
to any other such sign, placard, picture, name, advertisement or notice.
3. DIRECTORY. Subject to the Building's rules and regulations,
Lessee may have Lessee's business name on the Building's lobby and parking-level
directories. Lessor will order the installation of directory listings for the
name(s) designated as "Lessee" on this Lease. Lessee shall pay the Lessor's
prevailing charge for any Directory Listings. If Lessee desires a different
listing, additional listings, or does not want a name on the directories, Lessee
will note that fact at the bottom of this page and at the discretion of Lessor
and the Building, such additional listings may be provided.
4. DOOR LETTERING. Lessee may, at Lessee's expense, have the
occupant's name placed on Lessee's office door in the uniform size, style, place
and manner selected by Lessor. If Lessee requires door signs, Lessee shall pay
Lessor for same at Lessor's prevailing rate. Lessee shall not install a title,
company name or anything else on the outside of Lessee's door or any other
location visible from the common area. For attorneys, a law firm name on the
door is permissible, so long as it does not exceed one line. Lessor recommends
the use of a single occupant's name, or no name at all. If Lessee's office is
within a private suite, Lessee shall not place any name on the entrance door to
the private suite unless Lessee has leased the entire mini-suite, or each office
and desk space within that private suite is occupied and Lessee obtains written
consent of all other tenants within that private suite. If at any time Lessee
does not lease an entire mini-suite or private suite and Lessee does not have
the consent of all other occupants of the mini-suite or private suite, including
Lessor's in the event a vacancy exists, Lessee shall remove , at its own
expense, all lettering from the entrance door to the mini-suite or private
suite. If Lessee's door lettering is not installed by the office of the building
or the company recommended by Lessor, or if the next Lessee does not immediately
install door lettering, Lessee is responsible for the cost of professional
removal of Lessee's door lettering as well as any damage to the door caused by
the removal of Lessee's door lettering. If any co-Lessee complains that Lessee's
door lettering is not in keeping with the provisions herein, Lessee will alter
at Lessee's expense the door lettering to comply with these provisions.
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5. KEYS. Lessor will supply one key to the door of each office or
desk area (including one key for each existing desk lock if the former tenant
returned the key) rented by Lessee. If Lessee does not receive a door key for
space rented within 5 days after the commencement date of this Lease, Lessee
shall send Lessor a certified letter with return receipt asking for the key(s)
and if such letter is not received by Lessor, Lessee will be deemed to have
received the key(s) and Lessee will be responsible for replacing the key(s) when
Lessee moves out. Lessee will pay the Lessor's prevailing charge for elevator
keys, security cards or keys to enter the Building after normal business hours,
or additional office or desk area keys. Lessor is not responsible for changing
any lock for any reason including, but not limited to, the master key kept by
Lessor's employees, or any other key which opens Lessee's space, being stolen,
lost or misplaced. Lessee understands that Lessor is not liable for thefts.
Subject to the approval of the Building manager, Lessee may install a deadbolt
lock on or change the tumbler on any door(s) leading to an area within which
Lessee has leased all the space. Deadbolts must be installed above the doorknob,
with precisely 7 1/2" between the center of the knob and the center of the dead
bolt. If Lessee chooses to change the tumbler or to install a dead bolt, Lessee
realizes that maintenance personnel will not be able to enter and clean Lessee's
office(s). Lessee shall be responsible for the return of all keys to the
Premises. In the event Lessee fails to do so, Lessee shall pay Lessor for the
cost of re-keying all doors to the Premises. If Lessee requires Lessor to admit
Lessee into the Premises, Lessee will be assessed Lessor's standard charge for
admitting Lessee for each occurance after the first.
6. CARPETING AND WALL COVERING. Lessee accepts the carpeting,
flooring, and walls on an "as is" basis. Lessee shall return the carpeting,
flooring, walls, and wall covering to Lessor in their installed condition less
normal wear and tear. Lessee may not make changes in floor covering or wall
covering without the prior written consent of Lessor. Upon termination of the
Lease, whether upon expiration of the term or sooner, Lessee agrees to pay
Lessor One Hundred Dollars ($100.00) per leased office and Fifty Dollars
($50.00) per leased desk space to cover the painting and cleaning costs for each
such space. The applicable amounts for such painting and cleaning costs shall be
deducted from Lessee's security deposit should Lessee fail to pay Lessor for
same upon lease termination.
7. DRAPES (OR VENETIAN BLINDS). Lessor shall provide drapes or
blinds (whichever is standard for the Building) in exterior window offices
(excluding offices with atrium exposures) at no expense to Lessee. Lessor is not
obligated to clean or repair the drapes (or blinds). Lessee shall return same to
Lessor in their present condition less normal wear and tear. As required by the
Building, Lessee must use the building standard drapes or blinds. Lessee may
install overdrapes (visible only from within the office) in the text and color
of Lessee's choice, which must be removed at lease termination. If the Building
has special sun-resistant glass treatment and does not provide drapes or blinds
for other floors in the building, Lessor shall not be required to provide drapes
or blinds to Lessee.
8. IMPROVEMENTS. Lessee may make cosmetic improvements within the
office(s) and/or desk space(s) leased herein subject to Lessor's prior written
approval and provided that Lessee pays for any such improvements, and further
provided said improvements do not affect the structural integrity of the
Building or violate Lessor's Master Lease. All improvements (other than floor
covering or wall covering changes) must be done by the Building's general
contractor or a contractor of Lessee's choice with the prior written permission
of the Office of the Building and Lessor. Lessee may remove any improvements
paid for by Lessee provided that Lessee repairs any holes, gaps or other damage
to walls, ceiling, flooring or their coverings. Lessee will remove any
improvements (other than additional, normal-height electrical outlets or shelves
within a cabinet or closet occupied by Lessee) installed by Lessee and restore
the Premises to the condition prior to Lessee's occupancy if requested to do so
by Lessor. Lessee shall not remove any improvement for which Lessor contributed
payment without Lessor's prior written consent. During the restoration period,
Lessee shall pay rent to Lessor as provided herein as if said space were
otherwise occupied by Lessee.
9. CONFERENCE ROOM. Lessee may use the conference room(s) on a
reservation basis only. Lessee may not have a standing or permanent reservation
of the conference room. Lessee will not reserve the conference room on more than
3 occasions in any 30-day period nor may Lessee reserve use of the conference
room for an entire day more than one day at a time, unless Lessor's floor
manager confirms that such excess use does not conflict or interfere with any
other co-tenant's reasonable pro rata use of the conference room. Excess usage
will be charged to Lessee at Lessor's prevailing rate. Lessee understands the
conference room is for meetings, depositions or other conferences and is not to
be used for lunches or any other purpose which causes loud noise, offensive
odors
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or any other environmental situation which disturbs other tenants. Use of the
conference room at any other suite operated by Lessor is permitted one time in
any 30-day period on a reservation basis. Such usage is limited to normal
business hours when the floor manager is present.
10. LIBRARY. Lessor will provide access to a Law Library, consisting
of one set of each major multi-volume publication (other than desk or
specialized sets) used most frequently by most lawyers as determined by Lessor's
experience (said law library may be comprised of CD-ROM disks or books). Lessee
shall not xxxx, mar, tear or otherwise deface any book.
Lessee shall refrain from smoking, eating and drinking in the library and
shall be bound by the rules made by Lessor with respect to the use of the
library, including but not limited to the following:
(a) Lessee will return to the shelf each book that Lessee
removes from the shelf.
(b) Lessee will complete an "out card" for each book
removed from the library.
(c) Lessee will not keep any book out of the library
overnight.
Lessor is not responsible for repurchasing lost stolen or missing books or
supplements.
If the number of lost, stolen or missing books is unusually large, as
determined by Lessor's experience in running numerous law suites, Lessor may
lock the library after normal business hours or institute other security
measures Lessor deems appropriate, including inspection of all offices in the
Suite to locate missing books.
Lessee realizes that every book or supplement needed by Lessee will not
always be in the library as some books or supplements may be missing, stolen or
have been removed by tenants. Lessee acknowledges that Lessor is not
responsible to Lessee or any other persons in the event that research by, or on
behalf of, Lessee is inadequate or incomplete because some books or supplements
have not been updated, have been removed, or are missing or stolen. Lessor may
at any time and without prior notice to Lessee, remove the on-site library;
however, Lessee shall have the right to use the library of any other law suite
operated by Lessor but may not remove any book from said library. The Law
Library is provided for the convenience of the tenants and Lessor can not be
held responsible for any inadequacy therein.
11. TELEPHONE, MAIL SORTING AND RECEPTION. Lessor agrees to provide
standard telephone answering, mail sorting and reception services as reasonably
required by Lessee from 9:00 a.m. to 5:30 p.m., Monday through Friday, national
and/or state holidays excepted. Lessee shall be responsible for its own
telephone expense, and the installation and monthly service charges, if any,
from the telephone company by reason of Lessee's lines being connected to the
reception desk and telephone room consoles. Any telephone expense billed to
Lessor (including any telephone company double charge) shall be paid or
reimbursed by Lessee to Lessor. Lessee agrees to use only the telephone
equipment and services of the vendor authorized by Lessor if Lessee wishes to
connect its telephones lines to Lessor's switchboard and have Lessor answer
Lessee's telephone lines. Lessee may not install more than two incoming lines on
Lessor's switchboard for each office and one incoming line for each desk space,
and all such lines are to be answered with the same greeting. Telephone
equipment shall only be moved by Lessor or its authorized vendor and Lessee
shall be responsible to pay all costs of such moves at the current rates charged
by Lessor's authorized vendor.
In the event that Lessee receives excessive incoming telephone calls
through Lessor's switchboard (Greater than 1,000 calls per month per office
rented will be considered excessive), Lessor my impose a reasonable charge for
such excessive usage or require Lessee to disconnect its telephone lines from
Lessor's switchboard and have Lessee answer its own telephone lines. Lessee is
encouraged to have a private line that bypasses Lessors switchboard for
important clients & personal callers so as to help ensure that Lessee does not
receive excessive calls through Lessor's switchboard.
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Lessee is required to maintain voice-mail access so that Lessor's telephone
operators may route Lessee's callers that need to leave a message into said
voice-mail. Should Lessor's operators be required to take a paper message for
any reason, Lessee agrees to pay Lessor's standard charge for each such message
written.
Should Lessee choose not to be connected to Lessor's switchboard and not
have Lessor answer its telephones, Lessee may use its own telephone equipment
provided Lessee obtains said equipment from a telephone vendor approved by
Lessor. Lessee acknowledges that the telephone cabling which currently exists
in the suite is the property of Lessor and Lessor may have provided the rights
to use of the existing cabling to its authorized telephone vendor. Therefore,
if Lessee chooses to use its own telephone equipment, Lessee may be charged a
monthly fee by Lessor or its authorized telephone vendor for use of the existing
telephone cabling. In the event Lessee replaces Lessor's cabling with Lessee's
own vendor's cabling, Lessee shall reimburse Lessor for any expense Lessor's
phone vendor assesses to switch out its cabling and to restore it after Lessee
vacates the Premises.
Lessee agrees that Lessor is not responsible for the acts or omissions of
Lessor's telephone vendor. Lessor is not responsible for telephone equipment
breakdowns, and Lessee understands that telephone service may not always be
continuous. Further, Lessee agrees to indemnify, release, and hold Lessor
harmless from any loss damage, claim or liability arising out of or in
connection with any telephone equipment failure, including lost business or
income. Services offered by Lessor are subject to human electrical and
mechanical error, failure, or illness which may result in the delay or
discontinuation of these services. Lessee acknowledges that Lessor is not
responsible for telephone equipment breakdowns and that telephone service may
not always be continuous.
If the telephone company does not install Lessee's phone on or before the
commencement date of this Lease, the commencement date shall not be extended,
nor shall rent be abated, since Lessee is responsible for insuring that Lessee's
telephone lines are installed in Lessee's office and connected to Lessor's
central call director. If Lessee desires a floor telephone outlet or any other
telephone outlet not already provided, Lessee will pay the Building's relocation
charge and any additional conduit and electrical work charges.
Lessee recognizes that telephone answering, mail sorting and reception
services are never perfect and that all receptionists and telephone operators
make mistakes. Lessor strives to provide excellent telephone answering, mail
sorting and reception services, however it will not be error-free. Lessee may
perform telephone answering and mail service directly or through Lessee's
employees. Lessee agrees that Lessor shall not be liable for any loss of
business or damages of any sort occurring through or in connection with, or
incidental to the furnishing of, or the failure to furnish, telephone answering,
mail sorting or reception service. Further, Lessee agrees to indemnify,
release, and hold Lessor harmless from any loss, damage, claim or liability
arising out of or in connection with any telephone answering, mail sorting
and/or reception service provided or not provided by Lessor's employees to
Lessee or to any caller, visitor or associate of Lessee, or mail or deliveries
of any goods or merchandise intended for Lessee. IN THE EVENT THIS LEASE
TERMINATES, OR LESSEE IS IN DEFAULT HEREUNDER, LESSOR MAY, AT ITS ELECTION,
REFUSE TO PROVIDE TELEPHONE ANSWERING SERVICE, LIBRARY AND CONFERENCE ROOM
USAGE, PHOTOCOPYING, WORD PROCESSING, FAX AND LEGAL RESEARCH AND LESSOR SHALL
NOT BE IN BREACH OF ANY OF ITS OBLIGATIONS HEREUNDER, NOR SHALL SUCH REFUSAL BE
DEEMED AN EVICTION OF LESSEE UNDER THIS LEASE.
Lessor provides open message and mail slots to all tenants. Lessee
acknowledges that Lessor is not responsible for loss or theft of messages or
mail. Lessee may install at Lessee's expense a locking cover over the mail slot
or one or both sides of the message slot provided that Lessee will be
responsible for any damage to said mail or message slot as well as for restoring
the slot to its original condition when Lessee moves out. Lessee understands
that any covered slot will not be in alphabetical order and will be at the
beginning or end of the row of slots at the telephone operators discretion.
Lessee further understands that a key must be given to the telephone operators
in order for them to insert mail and/or messages into the respective slots, or
the covers must be designed with a small opening for that purpose. Lessor's
sole obligation to answer telephones or sort mail shall be limited to Lessee's
name or associates of Lessee occupying individual offices. Services in addition
to the foregoing shall be subject to a charge to be determined by Lessor.
Upon termination of this Lease, Lessor will write on all mail "Return to
Sender" and return to the post office. Lessor will not store mail nor place a
forwarding address on it unless Lessee pays the then-prevailing charge for said
service.
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12. PHOTOCOPYING AND FAX. Lessor will provide all photocopy and fax
services for the Premises and Lessee shall not be permitted to install any fax
or photocopy machines in the Leased Premises. If Lessee desires to use these
services, Lessee shall execute separate services agreements for same, and
charges arising from these services shall appear on Lessee's monthly statements
and shall be paid for together with the monthly rent for the Premises. Lessee
recognizes that photocopy and fax machines do break down and that repair persons
do not come over promptly. Lessee acknowledges that Lessor is not responsible
for machine breakdowns.
13. PARKING. Lessee and Lessee's visitors may have validated and
monthly automobile parking (if available) in the Building's parking facilities,
if any, according to the Building's rules and regulations. Lessor is under no
obligation to provide parking. Lessee's failure to obtain parking shall in no
way affect Lessee's obligation to pay rent.
14. PROFESSIONAL CONDUCT. If Lessee conducts himself or his business
in such a manner that reflects unfavorably on them or the Suite, Lessor may
terminate this Lease on 15 days notice to Lessee and any rent paid in advance
will be returned to Lessee on a pro rata basis. Lessor further reserves the
right to exclude, expel from the Suite or terminate the Lease of (on 5 days
notice to Lessee) any person who, in the sole judgment of Lessor, is abusive to
Lessor's employees, tenants or visitors to the Premises, is intoxicated or under
the influence of liquor or drugs, or who shall in any manner do any act in
violation of any of these rules and regulations or applicable laws.
15. SMOKING. Smoking is expressly prohibited in all areas of the
Suite.
16. AMENDMENTS. Lessor may, without further notice, make changes or
adopt any such other and further rules and regulations which in its sole
judgment may be necessary for the proper operation of the Suite. Lessee agrees
to abide by all such rules and regulations herein above stated and any
additional rules and regulations which are adopted. So long as Lessee is not in
violation of its obligations under the Lease or these rules and regulations,
Lessor shall observe the rules and regulations.
17. ASBESTOS-CONTAINING MATERIALS (ACM). See attached Exhibit E.
NAVIANT, INC. EXECUTIVE SUITES, INC.
LESSEE LESSOR
/s/ Xxxxxxx Xxxxx /s/ Xxxxxxxx G
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Xxxxxxx Xxxxx, CFO
Date: 12/13/99 Date: 12-17-99
*YOUR SIGNATURE IS ALSO REQUIRED ON PAGE 8 OF THE LEASE*
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Lessee shall have the Right of First Refusal to lease unit#(s) 35.A & 35.B.
Upon the Suite Manager's written notification of another parties' interest in
the above space, Lessee shall have 48 hours to sign a lease on said space. In
the event Lessee fails to sign the lease within 48 hours, Lessor shall have the
right to lease the unit(s) to the interested party.
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EXHIBIT E
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NOTIFICATION OF ASBESTOS CONTAINING MATERIALS ("ACM")
00000 XXXXXXX XXXXXXXXX, XXXXXX, XXXXXXXXXX
This will serve to notify Tenant, its subtenants, employees and
contractors working in the Building that an Asbestos Building Materials Survey
Report has been received by Landlord that confirms the extremely limited
presence of ACM In the Building.
Airborne asbestos levels in buildings are much lower than those in
industrial workplaces where serious health effects such as lung cancer and
asbestosis have been observed. However, it is important for employees to follow
proper work practices to minimize the potential for disturbing ACM.
At the time that the Encino Gateway Building was constructed, most
uses of asbestos containing building materials had been banned. One exception
to this ban was sprayed an acoustical texture, sometimes referred to as "cottage
cheese" used extensively in homes and commercial buildings throughout
California. In the Encino Gateway Building, this product is applied to the
lobby ceiling that can be observed from the Main Lobby, as well as the Parking
Xxxxx 0 xxx Xxxxxx Xxxxx xxxxxxxx lobbies. In 1985 the entire ceiling was
covered with Latex paint effectively encapsulating the ACM. Additionally, the
ACM Is generally out of reach, and thus unlikely to be damaged or disturbed. If
you find ACM that has been damaged, report it to your supervisor or Landlord's
Building Management. Do not disturb damaged asbestos material or debris.
Landlord has developed procedures and trained and equipped our maintenance
employees to safely remedy such a condition.
Asbestos containing materials pose no threat to your health unless
fibers become airborne due to material aging, deterioration or as the result of
some damage. Asbestos conditions may vary, and where ACM were Identified in the
building surveys they were generally in good condition, enclosed, encapsulated
or of a type not likely to release fibers unless disturbed. Specific locations
where ACM have been found are listed an the attached summary.
Any employee may review the Asbestos Material Survey Report, results
of bulk sampling or air monitoring conducted in this building. All asbestos
related data is available during normal business hours at Landlord's Building
Management Office.
FLOOR/ROOM TYPE of ACM
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Arcade Level / Elevator Lobby Acoustic ceiling
Floor 1 Acoustic ceiling
Parking Level 2 Acoustic ceiling
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Asbestos Type Chrysotile
Acoustic Ceiling Content 8% to 11%
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Initial Here
Tenant ____(Initialed)_______
Landlord__________________
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