COMMERCIAL LEASE
This lease, dated for reference purposes only this 22 day of May, 1997,
is made between NINE-C CORPORATION (the "Landlord") and X. X. Xxxxxxx DBA
Capital Resources and X. X. Xxxxxxx, an individual,(the "Tenant").
1. PREMISES.
1.01 Description. Landlord hereby leases to Tenant and Tenant hires
from Landlord on the terms, covenants and conditions set forth herein, those
premises specifically known as Suite 240 designated and identified by
crosshatching on Exhibit "A" attached hereto, (the "Leased Premises"), and
incorporated by reference herein. The Leased Premises, approximately 1325
square feet of usable space, and approximately 1559 square feet of rentable
space (by BOMA Modified Standards), is located at 000 Xxxxxxxx Xxxxxxxxx,
Xxxxxxx Xxxx, Xxxxxxxxxx (the "Building"). The Building is a part of a
commercial project which includes the Building, an adjacent parking lot and
parking structure and the underlying real property (the "Project").
1.02 Confirmation of Terms. Within thirty (30) days after Landlord
delivers a fully executed copy of this Lease to Tenant, Tenant's architect
may, at Tenant's expense, verify the rentable area contained in the Leased
Premises. The term "rentable area" as used in this Lease means the rentable
area as determined by the most recent version of the BOMA (Building Owners and
Managers Association International) American National Standard. If tenant's
verification of the rentable area differs from the rentable area specified in
Paragraph 1.01, then the parties shall immediately execute "Confirmation of
Lease Terms" to confirm the rentable area, the Base Rent, Tenant's Pro Rata
Share and other changes that are based on the rentable area of the Premises.
2. BASE RENT.
2.01 Tenant agrees to pay Landlord as base rent (Base Rent), without
notice, demand, deduction, or offset, the monthly sum of $3507.75 for the
first 12 months, in advance on or before the first day of each and every
successive calendar month during the term hereof, except that last month's
deposit shall be paid upon execution hereof. Credit will be given for
Tenant's current deposit. The rent shall commence on the First day of July,
1997 (the "Commencement Date"). All payments to Landlord under this Lease
shall be paid to Landlord at the address for notice set forth in paragraph
32.15, or at such other address provided to Tenant by Landlord in writing from
time to time.
2.02 Rent for any period which is for less than one month shall be a
prorated portion of the monthly rental based upon a thirty (30) day month.
Tenant acknowledges that late payment by Tenant to Landlord of rent or other
sums due hereunder will cause Landlord to incur certain costs not contemplated
by this Lease, the exact amount of which would be extremely difficult and
impractical to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any trust deed covering the Leased Premises.
Therefore, in the event Tenant shall fail to pay any installments of rent or
any sum due hereunder within five (5) days after receiving notice of such
delinquency, Tenant shall pay to Landlord as additional rent a late charge
equal to TEN percent (10%) of each such installment or other sum. A $15.00
charge will be paid by the Tenant to the Landlord for each returned check, in
addition to the late charge.
2.03
INTENTIONALLY OMITTED
3. PROJECT OPERATING COSTS.
3.01(a) In order that the Rent payable during the Term reflect any
increase in Project Operating Costs (described below), Tenant agrees to pay to
Landlord as Rent, Tenant's Proportionate Share (defined in Paragraph 3.02) of
all increases in costs, expenses and obligations attributable to the Project
and its operation, all as provided below.
(b) If, during any Calendar year during the Term, Project Operating
Costs exceed the Project Operating Costs for the calandar year of the
Occupancy, Tenant shall pay to Landlord, in
addition to the Base Rent and all of the payments due under this Lease, an
amount equal to Tenant's Proportionate Share of such excess Project Operating
Costs in accordance with the provisions of this Paragraph 3.01(b).
(c) The term "Project Operating Costs" shall include all those
items described in the following subparagraphs (1) and (2).
(1) All taxes, assessments, water and sewer charges and other
similar governmental charges levied on or attributable to the Building or
Project as a whole or their operation, including without limitation, (i) real
property taxes or assessments levied or assessed against the Building or
Project as a whole, and (ii) assessments or charges levied or assessed against
the Building or Project as a whole by any redevelopment agency; but excluding
any tax measured by gross rentals received from the leasing of the Premises,
Building or Project.
(2) Operating costs incurred by Landlord in maintaining and
operating the Building and Project, including without limitation the
following: costs of (i) utilities; (ii) supplies; (iii) insurance (including
public liability, property damage, earthquake, and fire and extended coverage
insurance for the full replacement costs of the Building and Project as
required by Landlord or its lenders for the Project; (iv) services of
independent contractors; (v) compensation (including employment taxes and
fringe benefits) of all persons who perform duties connected with the
operation, maintenance, repair or overhaul of the Building or Project, and the
HVAC system, equipment, improve ments and facilities located within the
Project, including without limitation engineers, janitors, painters, floor
waxers, window washers, security and parking personnel, landscapers and
gardeners (but excluding persons performing services not uniformly available
to or performed for substantially all Building or Project tenants); (vi)
operation and maintenance of a room for delivery and distribu tion of mail to
tenants of the Building or Project as required by the U.S. Postal Service
(including, without limitation, an amount equal to the fair market rental
value of the mail room premises); (vii) management of the Building or Project,
whether managed by Landlord or an independent contractor (including, without
limita tion, an amount equal to the fair market value of any on-site manager's
office, but excluding any commission or fee for leasing or collecting rents);
(viii) rental expenses for (or a reasonable depreciation allowance on)
personal property used in the main tenance, operation or repair of the
Building or Project: (ix) costs, expenditures or charges (whether capitalized
or not) required by any governmental or quasi-governmental authority; (x)
amortization of capital expenses (including financing costs) (1) required for
the Building as a whole by a governmental entity for energy conservation or
life safety purposes, or (2) made by Landlord to reduce Project Operating
Costs; and (xi) any other costs or expenses incurred by Landlord under this
Lease and not otherwise reimbursed by tenants of the Project.
(3) Project Operating Costs shall not include costs or
expenses only for the benefit of other tenants.
(d) Tenant's Proportionate Share of Project Operating Costs
shall be payable by Tenant to Landlord as follows:
(1) Beginning with the second year of the term and for each
year thereafter ("Comparison Year"), Tenant shall pay Landlord an amount equal
to Tenant's Proportionate Share of the Project Operating Costs incurred by
Landlord in the Comparison Year which exceeds the total amount of Project
Operating Costs payable by Landlord for the first year of the term. This
excess is referred to as the "Excess Expenses."
(2) To provide for current payments of Excess Expenses,
Tenant shall, at landlord's request, pay as additional rent during each
Comparison Year, an amount equal to Tenant's Proportionate Share of the Excess
Expenses payable during such Comparison Year, as estimated by Landlord from
time to time. Such payments shall be made in monthly installments, commencing
on the first day of the month following the month in which Landlord notifies
Tenant of the amount it is to pay hereunder and continuing until the first day
of the month following the month in which Landlord gives Tenant a new notice
of estimated Excess Expenses. It is the intention hereunder to estimate from
time to time the amount of the Excess Expenses for each Comparison Year and
Tenant's Proportionate Share thereof, and then to make an adjustment in the
following year based on the actual Excess Expenses incurred for that
Comparison Year.
(e) On or before the 90th day of each Comparison Year after the
first Comparison Year (or as soon thereafter as is practical), Landlord shall
deliver to Tenant a statement setting forth Tenant's Proportionate Share of
the Excess Expenses for the preceding Comparison Year. If Tenant's
Proportionate Share of the actual Excess Expenses for the previous Comparison
Year exceeds the total of the estimated monthly payments made by Tenant for
such year, Tenant shall pay Landlord the amount of the deficiency within ten
(10) days of the receipt of the statement. If such total exceeds Tenant's
Proportionate Share of the actual Excess Expenses for such Comparison Year,
then Landlord shall credit against Tenant's next ensuing monthly
installment(s) of additional rent an amount equal to the difference until the
credit is exhausted. If a credit is due from Landlord on the Expiration Date,
Landlord shall pay Tenant the amount of the credit. The obligations of Tenant
and Landlord to make payments required under this Paragraph 3.01 shall survive
the Expiration Date.
(f) Tenant's Proportionate Share of Excess Expenses in any
Comparison Year having less than 365 days shall be appropriate ly prorated.
(g) If any dispute arises as to the amount of any additional rent
due hereunder, Tenant shall have the right after reasonable notice and at
reasonable times to inspect Landlord's accounting records at Landlord's
accounting office and, if after such inspection Tenant still disputes the
amount of additional rent owed, Landlord and Tenant shall refer the dispute to
an independent certified public accountant selected by them for certification
of the proper amount. Such accountant's certification of the amount and
direction as to the allocation between Landlord and Tenant of the cost of
certification shall be final and conclusive.
3.02 Tenant's Proportionate share shall be 2.78%, the usable
area of the Leased Premises divided by the useable area of the Building, times
100, computed as follows:
Premises Usable Area: _1325___ = .0 x 100 = 2.78%
Building Usable Area: 47,692 sq. ft.
3.03 All costs and expenses which Tenant assumes or agrees to
pay to Landlord under this Lease shall be deemed additional rent (which,
together with the Base Rent, is sometimes referred to as the "Rent"). The
Rent shall be paid to the Building manager (or other person) and at such
place, as Landlord may from time to time designate in writing, without any
prior demand therefor and without deduction or offset, in lawful money of the
United States of America.
3.04 In addition to the Rent and any other charges to be paid by
Tenant hereunder, Tenant shall reimburse Landlord upon demand for any and all
taxes payable by Landlord (other than net income taxes) which are not
otherwise reimbursable under this Lease, whether or not now customary or
within the contemplation of the parties, where such taxes are upon, measured
by or reasonably attributable to (a) the cost or value of Tenant's equipment,
furniture, fixtures and other personal property located in the Premises, or
the cost or value of any leasehold improvements made in or to the Premises by
or for Tenant, other than standard tenant improvements made by Landlord,
regardless of whether title to such improvements is held by Tenant or
Landlord; (b) the gross or net Rent payable under this Lease, including,
without limitation, any rental or gross receipts tax levied by any taxing
authority with respect to the receipt of the Rent hereunder; (c) the
possession, leasing, operation, management, maintenance, alteration, repair,
use or occupancy by Tenant of the Premises or any portion thereof; or (d) this
transaction or any document to which Tenant is a party creating or
transferring an interest or an estate in the Premises. If it becomes unlawful
for Tenant to reimburse Landlord for any costs as required under this Lease,
the Base Rent shall be revised to net Landlord the same net Rent after
imposition of any tax or other charge upon Landlord as would have been payable
to Landlord but for the reimbursement being unlawful.
3.05 Landlord agrees to operate the Project in a prudent manner
with a view to controlling costs in a manner consistent with the sound
operation of the Project.
4. CONDITION OF THE PREMISES. Tenant's taking possession of the
Premises shall be deemed conclusive evidence that as of the date of taking
possession the Premises are in good order and satisfactory condition, except
for such matters as to which Tenant gave Landlord written notice on or before
the Commencement Date. No promise of Landlord to alter, remodel, repair or
improve the Premises or the Building and no representation, express or
implied, respecting any matter or thing relating to the Premises or Building
or this Lease (including, without limitation, the condition of the Premises or
the Building) have been made to Tenant by Landlord or its Broker or Sales
Agent, other than as may be contained herein or in a separate exhibit or
addendum signed by Landlord and Tenant.
5. TERM.
5.01 The lease term shall commence on the Commencement Date and
shall be for a period of 12 months (one year) ending June 30, 1998.
6. USE OF PREMISES. The Leased Premises may be used and occupied
only for offices and for no other purpose without Landlord's prior written
consent. Landlord does not represent nor warrant that the premises can be
used for such purpose, as it is incumbent upon Tenant to ascertain from the
proper governmental authorities whether or not the premises can be used for
Tenant's intended use. Tenant shall promptly comply with all laws,
ordinances, orders and regulations affecting the Leased Premises and their
cleanliness, safety, occupation and use. Tenant shall not commit, or suffer
to be committed, any waste on the Premises, nor shall Tenant maintain, commit,
or permit the maintenance or commission of any nuisance, as defined in
California Civil Code Section 3479, on the Premises. This provision shall
specifically preclude the storage in or on the Premises, or release in or
about the Premises, of hazardous materials as that term is defined in Federal
and California laws, statutes, rules and regulations.
7. UTILITIES INTERRUPTION. Landlord shall not be liable in damages
or otherwise for any failure or interruption of any utility service, and no
such failure or interruption shall entitle Tenant to terminate this Lease or
xxxxx the rent and other charges.
8. ALTERATIONS, MECHANICS LIENS.
8.01 Alterations may not be made to the Leased Premises without
the prior written consent of Landlord and any alterations of the Leased
Premises except movable furniture and trade fixtures shall at Landlord's
option become part of the realty and belong to the Landlord.
9. FIRE INSURANCE HAZARDS.
9.01 No use shall be made or permitted to be made of the Leased
Premises, nor acts done, which will increase the existing rate of insurance
upon the Building or cause the cancellation of any insurance policy covering
the Building, or any part thereof, nor shall Tenant sell, or permit to be
kept, used or sold, in or about the Leased Premises, any article which may be
prohibited by the standard form of fire insurance policies. Tenant shall, at
its sole cost and expense, comply with any and all requirements pertaining to
the Leased Premises of any insurance organization or company, necessary for
the maintenance of reasonable fire and public liability insurance, covering
the Leased Premises, or the Building of which it is a part. Tenant agrees to
pay to Landlord as additional rent, any increase in premiums on policies which
may be carried by Landlord on the Leased Premises covering damages to the
Building and loss of rent caused by fire and the perils normally included in
extended coverage above the rates for the least hazardous type of occupancy
for industrial, warehousing, office and distribution operations.
9.02 Tenant shall maintain in full force and effect on all of
its fixtures and equipment in the Leased Premises a policy or policies of fire
and extended coverage insurance with malicious mischief and theft endorsements
to the extent of at least eighty percent (80%) of their insurable value.
During the term of this Lease the proceeds from any such policy or policies of
insurance shall be used for the repair or replacement of the fixtures and
equipment so insured. Landlord shall have no interest in the insurance upon
Tenant's equipment ad fixtures and will sign all documents necessary or proper
in connection with the settlement of any claim or loss by Tenant. Landlord
will not carry insurance on Tenant's possessions, nor on any leasehold
improvements made by Tenant. Tenant shall furnish Landlord with a certificate
of such policy within thirty (30) days of the commencement of this Lease and
whenever required shall satisfy Landlord that such policy is in full force and
effect.
10. LIABILITY INSURANCE. Tenant, commencing upon Tenant's initial
entry into the premises, at its own expense, shall provide and keep in force
with companies acceptable to Landlord public liability insurance for the
benefit of Landlord and Tenant jointly against liability for bodily injury and
property damage in the amount of not less than One Million Dollars
($1,000,000) in respect to injuries to or death of one person and in an amount
of not less than Two Million Dollars ($2,000,000) in respect to injuries to or
death of more than one person in any one occurrence, and in the amount of not
less than Four Hundred Ninety-Five Thousand Dollars ($495,000) per occurrence
in respect to damage to property, such limits to be in any greater amounts as
may be reasonably indicated by circumstances from time to time existing.
Tenant shall upon occupancy furnish Landlord with a certificate of such policy
and whenever required shall satisfy Landlord that such policy is in full force
and effect. Such policy shall name Landlord as an additional insured and
shall be primary and non-contributing with any insurance carried by Landlord.
The policy shall further provide that it shall not be canceled or altered
without twenty (20) days' prior written notice to Landlord. Insurance
required hereunder shall be in companies rated A+, AAA or better in "Best's
Insurance Guide."
11. INDEMNIFICATION BY TENANT.
11.01 This Lease is made on the express condition that Landlord shall
not be liable for or suffer loss by reason of injury to person or property
from any cause (excluding Landlord's negligent act or omission and excluding
any environmental matters not caused by Tenant) in any way connected with the
condition or use of the Leased Premises or the installation or construction of
improvements or personal property therein, including without limitation any
liability for injury to the person or property of Tenant, its agents,
officers, employees or invitees. Tenant agrees to indemnify Landlord and hold
it harmless from any and all liability, loss, cost, or obligation on account
of, or arising out of, any such injury or loss.
11.02 In case any action, suit or proceeding is brought against
Landlord by reason of any such occurrence, under the paragraph above, Tenant,
upon Landlord's request, will at Tenant's expense, resist and defend such
action, suit or proceeding, or cause the same to be resisted and defended by
counsel designated by the insurer whose policy covers the occurrence or by
counsel designated by Tenant and approved by Landlord. The obligations of
Tenant under this section arising by reason of any occurrence taking place
during the Lease Term shall survive any termination of this Lease.
12. REPAIRS.
12.01 Tenant shall, at Tenant's sole cost and expense, keep the
Premises and every part thereof in good condition and repair (except as
hereinafter provided with respect to Landlord's obligations) including without
limitation, the maintenance, replacement and repair of any storefront, doors,
window casements and glazing. Tenant shall, upon the expiration or sooner
termina tion of this Lease hereof, surrender the Leased Premises to the
Landlord in good condition, broom clean, ordinary wear and tear and damage
from causes beyond the reasonable control of Tenant excepted. Any damage to
adjacent premises caused by Tenant's use of the Premises shall be repaired at
the sole cost and expense of Tenant.
12.02 Notwithstanding the Provisions of Paragraph 12.01 hereinabove,
Landlord shall repair and maintain the structural portions of the Leased
Premises, including the exterior walls and roof, plumbing, pipes, electrical
wiring and conduits, unless such maintenance and repairs are caused in part or
in whole by the act, neglect, fault or omission of any duty by the Tenant, its
agents, servants, employees, invitees, or any damage caused by breaking and
entering, in which case Tenant shall pay to Landlord the reasonable cost of
such maintenance and repairs. All costs and expenses of Landlord under this
Paragraph 12.02 shall be Project Operating Costs under Paragraph 3.01.
Landlord shall not be liable for any failure to make any such repairs or to
perform any maintenance unless such failure shall persist for an unreasonable
time after written notice of the need of such repairs or maintenance is given
to Landlord by Tenant. Except as provided in Article 16 hereof, there shall
be no abatement of rent and no liability of Landlord by reason of any injury
to or interference with Tenant's business arising from the making of any
repairs, alterations or improvements in or to any portion of the Leased
Premises or building of which the Leased Premises are a part, or in or to
fixtures, appurtenances and equipment therein. Tenant waives the right to
make repairs at Landlord's expense under any law, statute or ordinance now or
hereafter in effect.
13. PARKING AND COMMON AREAS. 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 the Common areas and parking garage adjacent to the
building during the entire term of this Lease, for ingress and egress, and
automobile parking.
14. SIGNS. The Tenant shall obtain Landlord's approval before signs
are placed on the exterior and/or interior of the Building.
15. ENTRY BY LANDLORD. Tenant shall permit Landlord and Landlord's
agents to enter the Leased Premises after business hours on weekdays, and on
weekends, for the purpose of inspecting the same or for the purpose of
maintaining the Leased Premises or adjacent premises or for the purpose of
making repairs, altera tions, or additions to any portion of same including
the erection and maintenance of such scaffolding, canopies, fences, and props
as may be required, or for the purpose of posting notices of non-
responsibility for alterations, additions, or repairs without any rebate of
rent and without any liability to Tenant for any loss of occupation or quiet
enjoyment of the Leased Premises thereby occasioned. For each of the
aforesaid purposes, Landlord shall at all times have and retain a key with
which to unlock all of the doors in, upon and about the Leased Premises,
excluding Tenant's vaults and safes. The tenant shall not alter any lock or
install a new or additional lock or any bolt on any door of the Leased
Premises without prior written consent of the Landlord. If Landlord shall
give its consent, the Tenant shall in each case furnish the Landlord with a
key for any such lock.
16. DESTRUCTION OR DAMAGE.
16.01 If the Premises or the portion of the Building necessary for
Tenant's occupancy is damaged by fire, earthquake, act of God, the elements or
other casualty, Landlord shall, subject to the provisions of this Article,
promptly repair the damage, if such repairs can, in Landlord's opinion, be
completed within (90) ninety days. If Landlord determines that repairs can be
completed within ninety (90) days, this Lease shall remain in full force and
effect, except that if such damage is not the result of the negligence or
willful misconduct of Tenant or Tenant's agents, employees, contractors,
licensees or invitees, the Base Rent shall be abated to the extent Tenant's
use of the Premises is impaired, commencing with the date of damage and
continuing until completion of the repairs required of Landlord under
Paragraph 16.04.
16.02. If in Landlord's opinion, such repairs to the Premises or
portion of the Building necessary for Tenant's occupancy cannot be completed
within ninety (90) days, Landlord shall notify Tenant of that opinion in
writing within thirty (30) days after the date of such fire or other casualty.
In such event, Landlord and Tenant may each terminate this Lease unilaterally
by giving the other party written notice of such termination within 15 days of
the effective date of the notice described above, and this Lease shall
terminate as of the date of such fire or casualty. If neither party notifies
the other of such termination, this Lease shall continue in full force and
effect, but the Base Rent shall be partially abated as provided in Paragraph
16.01.
16.03(a) If any other portion of the Building or Project is totally
destroyed or damaged to the extent that in Landlord's opinion repair thereof
cannot be completed within ninety (90) days, Landlord may elect upon notice to
Tenant given within thirty (30) days after the date of such fire or other
casualty, to repair such damage, in which event this Lease shall continue in
full force and effect, but the Base Rent shall be partially abated as provided
in Paragraph 16.01. If Landlord does not elect to make such repairs, this
Lease shall terminate as of the date of such fire or other casualty.
16.03(b) If any other such portion of the Building or Project is
totally destroyed or damaged to the extent that in Landlord's opinion repair
thereof cannot be completed within ninety (90) days, and Tenant's business
operations are substantially and adversely impacted by such damage, and
Landlord elects to repair such damage, then, nevertheless, Tenant shall have
the right to terminate this Lease if the substantial adverse impact is not
cured by Landlord within one hundred fifty (150) days of the date of such fire
or casualty. Tenant shall exercise this right by giving written notice to
Landlord no later than one hundred fifty-five (155) days after the date of
such fire or casualty.
16.04 If the Premises are to be repaired under this Article, Landlord
shall repair at its cost any injury or damage to the Building and standard
tenant improvements in the Premises. Tenant shall be responsible at its sole
cost and expense for the repair, restoration and replacement of any other
Leasehold improvements and Tenant's Property. Landlord shall not be liable
for any loss of business, inconvenience or annoyance arising from any repair
or restoration of any portion of the Premises or Building as a result of any
damage from fire or other casualty.
16.05 This Lease shall be considered an express agreement governing
any case of damage to or destruction of the Premises or Building by fire or
other casualty, and any present or future law which purports to govern the
rights of Landlord and Tenant in such circumstances in the absence of express
agreement, shall have no application. The opinions and determinations of
Landlord under this Section 16 shall be reasonable.
17. ASSIGNMENT AND SUBLETTING. Tenant shall not either voluntarily,
or by operation of law, assign, transfer, mortgage, pledge, hypothecate or
encumber this Lease or any interest therein, and shall not sublet the Leased
Premises or any part thereof, or any right or privilege appurtenant thereto,
or allow any other person (the employees, agents, servants and invitees or
Tenant excepted) to occupy or use the Leased Premises, or any portion thereof,
without the written consent of Landlord first had and obtained, which consent
shall not be unreasonably withheld. A consent to one assignment, subletting,
occupation or use by any other person shall not be deemed to be a consent to
any subsequent assignment, subletting, occupation or use by another persona.
Consent to any such assignment or subletting shall not relieve Tenant of any
liability under this Lease. Any such assignment or subletting without such
consent shall be void, and shall, at the option of the Landlord, constitute a
default under the terms of this Lease.
In the event that Landlord shall consent to a sublease or assignment
hereunder, Tenant shall pay Landlord reasonable fees, not to exceed One
Thousand Dollars ($1,000.00), incurred in connection with the processing of
documents necessary to giving of such consent and assumption by the assignee.
18. TENANT'S DEFAULT. The occurrence of any one or more of the
following events shall constitute a default and breach of this Lease by
Tenant:
A. The vacating or abandonment of the Premises by Tenant.
B. The failure by Tenant to make any payment or rent or any
other payment required to be made by Tenant hereunder, as and when due.
C. The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed
by the Tenant, other than described in B, above, where such failure shall
continue for a period of fifteen (15) days after written notice thereof by
Landlord to Tenant; provided, however, that if the nature of Tenant's default
is such that more than fifteen (15) days are reasonably required for its cure,
then Tenant shall not be deemed to be in default if Tenant commences such cure
within said fifteen (15) days period and thereafter diligently prosecutes such
cure to completion.
D. The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; or the filing by or against Tenant
of a petition to have Tenant adjudged a bankrupt, or a petition or
reorganization or arrangement under any law relating to bankruptcy (unless, in
the case of a petition filed against Tenant, the same is dismissed within
sixty (60) days); or the appointment of a trustee or a receiver to take
possession of substantially all of Tenant's assets located at the Premises or
of Tenant's interest in this Lease, where possession is not restored to Tenant
within thirty (30) days; or the attachment, execution or other judicial
seizure of substantially all of Tenant's assets located at the Leased Premises
or of Tenant's interest in this Lease, where such seizure is not discharged in
thirty (30) days.
19. REMEDIES ON DEFAULT. In the event of any such default or breach
by Tenant, Landlord may at any time thereafter, with or without notice or
demand and without limiting Landlord in the exercise of a right or remedy
which Landlord may have by reason of such default or breach:
A. Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default including, but not limited to: the
cost of recovering possession of the Premises; expenses of reletting,
including necessary renovation and alteration of the Premises; reasonable
attorney's fees; the worth at the time of award by the court having
jurisdiction thereof of the amount by which the unpaid rent and other charges
and adjustments called for herein for the balance of the term after the time
of such award exceeds the amount of such loss for the same period that Tenant
proves could be reasonably avoided; and that portion of any leasing commission
paid by Landlord and applicable to the unexpired term of this Lease. Unpaid
installments of rent or other sums shall bear interest from the date due at
the rate of ten percent (10%) per annum. "Worth" as used in this provision,
is computed by discounting the total at the discount rate of the Federal
Reserve Bank of San Francisco at the time of the judgment, or award, plus one
percent (1%).
B. Maintain Tenant's right to possession, in which case this
Lease shall continue in effect whether or not Tenant shall have abandoned the
Premises. In such event, Landlord shall be entitled to enforce all of
Landlord's rights and remedies under this Lease, including the right to
recover the rent and any other charges and adjustments as may become due
hereunder; or
C. Pursue any other remedy now or hereafter available to
Landlord under the laws or judicial decisions of the State in which the
Premises are located.
20. LANDLORD'S RIGHT TO CURE DEFAULTS. Landlord may, but shall not
be obligated to, cure, any anytime, without notice, any default by Tenant
under this Lease; and whenever Landlord so elects, all costs and expenses
incurred by Landlord including without limitation reasonable attorney's fees
and expenses, together with interest on the amount of costs and expenses so
incurred at the maximum legal rate then in effect in the State of California
shall be paid by Tenant to Landlord on demand.
21. DEFAULT BY LANDLORD. Landlord shall not be in default unless
Landlord or the beneficiary under any deed of trust fails to perform
obligations required of Landlord within a reasonable time, but in no event
later than thirty (30) days after written notice by Tenant to Landlord and to
the beneficiary of any deed of trust covering the Premises whose name and
address shall have theretofore been furnished to Tenant in writing, specifying
wherein Landlord has failed to perform such obligation; provided, however,
that if the nature of Landlord's obligation is such that more than thirty (30)
days are required for performance, then Landlord shall not be in default if
Landlord or said beneficiary commences performance within such thirty (30) day
period and thereafter diligently prosecutes the same to completion. In no
event shall Tenant have the right to terminate this Lease as a result of
Landlord's default and Tenant's remedies shall be limited to damages and/or an
injunction.
22. ATTORNEY'S FEES/COLLECTION CHARGES. In the event of any legal
action or proceeding between the parties hereto, reasonable attorney's fees
and expenses of the prevailing party in any such action or proceeding may be
added to the judgment therein, including attorney's fees on appeal. In
addition to the charges provided for above, Tenant shall pay a charge of
$25.00 to Landlord for preparation of each demand for delinquent rent.
23. SURRENDER OF LEASE NOT MERGER. 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 of Landlord terminate all or any existing
subleases, and/or subtenan cies, or may, at the option of Landlord, operate as
an assignment to it of any or all of such subleases or subtenancies.
24. CONDEMNATION. If any part of the Leased Premises or the
building of which it is a part, or the Center or parking or common areas
therein, shall be taken or condemned for a public or quasi- public use, and a
part thereof remains which is reasonably suitable for Tenant's purposes
hereunder, this Lease shall, as to the part so taken, terminate as of the date
title shall vest in the condemnor, and the rent payable hereunder shall be
equitably adjusted. If all the Leased Premises, or such part thereof be taken
or condemned so that there does not remain a portion reasonably suitable for
Tenant's purposes hereunder, this Lease shall thereupon terminate.
25. WAIVER. The waiver by Landlord of any breach of any term,
covenant, or condition herein contained shall not be deemed to be a waiver of
such term, covenant, or condition or any subsequent breach of the same or any
other term, covenant, or condition herein contained. The subsequent
acceptance of rent hereunder by Landlord shall not be deemed to be a waiver of
any preceding breach by Tenant of any term, covenant, or condition of this
Lease, other than the failure of Tenant to pay the particular rental so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent.
26. EFFECT OF HOLDING OVER. If Tenant should remain in possession
of the Leased Premises after the expiration of the Lease Term and without
executing a new Lease, then such holding over shall be construed as a tenancy
from month-to-month, subject to all the conditions, provisions, and
obligations of this Lease insofar as the same are applicable to a
month-to-month tenancy; provided, however, that Base Rent during any such
holding over shall be 150% of the Base Rent in effect immediately prior to the
expiration of the Lease term.
27. TENANT'S STATEMENT. Tenant shall at any time and from time to
time upon not less than five (5) days prior written notice from Landlord
execute, acknowledge and deliver to Landlord a statement in writing (a)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this
Lease as so modified is in full force and effect), and the date to which the
rental and +other charges are paid in advance, if any, and (b) acknowledging
that there are not, to Tenant's knowledge, any uncured defaults on the part of
the Landlord hereunder, or specifying such defaults if any are claimed, and
(c) setting forth the date of commencement of rents and expiration of the term
hereof. Any such statement may be relied upon by any prospective purchaser or
encumbrancer of all or any portion of the real property of which the Premises
are a part.
28. TENANT'S FINANCIAL INFORMATION. Tenant shall promptly furnish
to Landlord, from time to time, financial statements and annual reports,
reflecting Tenant's current financial condition, whenever requested by
Landlord.
29. RELATIONSHIP OF THE PARTIES. Nothing contained herein shall
be deemed or construed by the parties hereto nor by any third party, as
creating the relationship of principal and agent or of partnership or of joint
venture between the parties hereto, it being understood and agreed that
neither the method of computation of rent nor any other provision contained
herein, nor any acts of the parties hereto, shall be deemed to create any
relationship other than Landlord and Tenant.
30. RULES AND REGULATIONS. Tenant shall faithfully observe and
comply with all reasonable rules and regulations that Landlord shall from time
to time promulgate and/or modify (see Exhibit "C" attached hereto). The rules
and regulations shall be binding upon the Tenant upon delivery of a copy of
them to Tenant. Landlord shall not be responsible to Tenant for the
nonperformance of any said rules and regulations by any other tenants or
occupants. Said rules may include (1) the restricting of employee parking,
and (2) regulation of waste removal.
31. GENERAL PROVISIONS.
31.01 Plats and Riders. Clauses, plats, riders and addendums, if
any, affixed to this Lease are a part hereof.
31.02 Venue. Landlord will execute this Lease and will receive the
rent and other payments at Landlord's office. Therefore the county in which
Landlord's office is located is hereby deemed to be a proper place of venue
for transitory actions.
31.03 Marginal Headings. The marginal headings and article titles to
the articles of this Lease are not a part of this Lease and shall have no
effect upon the construction or interpreta tion of any part hereof.
31.04 Time. Time is of the essence of this Lease and each and all of
its provisions in which performance is a factor.
31.05. Successors and Assigns. The covenants and condi tions herein
contained, subject to the provisions as to assignment, apply to and bind the
heirs, successors, executors, administrators and assigns of the parties
hereto.
31.06. Recordation. Neither Landlord nor Tenant shall record this
Lease, but a short form memorandum hereof may be recorded at the request of
the Landlord.
31.07. Quiet Possession. Upon Tenant paying the rent reserved
hereunder and observing and performing all of the covenants, conditions and
provisions on Tenant's part to be observed and performed hereunder, Tenant
shall have quiet posses sion of the Premises for the entire term hereof,
subject to all the provisions of this Lease.
31.08. Prior Agreements. This Lease contains all of the agreements
of the parties hereto with respect to any matter covered or mentioned in this
Lease, and no prior agreements or understand ing pertaining to any such matter
shall be effective for any purpose. No provision of this Lease may be amended
or added to except by an agreement in writing signed by the parties hereto or
their respective successors in interest. This Lease shall not be effective or
binding on any party until fully executed by both parties hereto.
31.09. Inability to Perform. This lease and the obliga tions of the
Tenant hereunder shall not be affected or impaired because the Landlord is
unable to fulfill any of its obligations hereunder or is delayed in doing so,
if such inability or delay is caused by reason of strike, labor troubles, acts
of God, or any other cause beyond the reasonable control of the Landlord.
31.10. Partial Invalidity. Any provision of this Lease which shall
prove to be invalid, void, or illegal shall in no way affect,impair or
invalidate any other provisions hereof and such other provision shall remain
in full force and effect.
31.11. Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
31.12. Choice of Law. This Lease shall be governed by the laws of
the State of California.
31.13. 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; but only if the
purchaser at such sale or any subsequent sale of the Premises shall have
assumed and agreed to carry out any and all of the covenants and obliga tions
of the Landlord under this Lease.
31.14. Subordination, Attornment. Upon request of the Landlord,
Tenant will in writing subordinate its rights hereunder to the lien of any
mortgage, or deed of trust, to any bank, insurance company or other lender
(including the Building owner and its successors and assigns) now or hereafter
in force against the premises, and to all advances made or hereafter to be
made upon the security thereof, provided that such company or institution
agrees to honor this Lease for the full term hereof so long as Tenant is not
in default hereunder.
In the event any proceedings are brought for foreclosure, or in the event
of the exercise of the power of sale under any mortgage or deed of trust made
by the Landlord covering the Premises, the Tenant shall attorn to the
purchaser upon any such foreclosure or sale and recognize such purchaser as
the Landlord under this Lease.
31.15. Notices. All notices and demands which may be or are required
or permitted to be given by either party on the other hereunder shall be in
writing. All notices and demands by the Landlord to the Tenant shall be sent
by United States Mail, postage prepaid, addressed to the Tenant at the
Premises, and to the address hereinbelow, or to such other place as Tenant may
from time to time designate in a notice to the Landlord. All notices and
demands by the Tenant to the Landlord shall be sent by United States Mail,
postage prepaid, addressed to the Landlord at the address set forth herein,
and to such other person or place as the Landlord may from time to time
designate in a notice to the Tenant.
To Landlord at: NINE C CORPORATION
X.X. Xxx 0000
Xxxxxxx Xxxx, XX 00000
To Tenant at: X.X.Xxxxxxx DBA Capital Resources
000 Xxxxxxxx Xxxx. #000
Xxxxxxx Xxxx, XX 00000
32. SERVICES TO PREMISES. Notwithstanding anything herein to the
contrary, the Landlord shall provide water, power, heating, air conditioning,
janitorial and other services, including but not limited to floor waxing,
trash removal, window washing and all facilities regarding maintenance of the
exterior of the building, including gardening, subject to payment or
reimbursement by Tenant as provided herein.
Exhibit "B" hereto more completely sets forth the types and
frequency of service and the minimum acceptable service standard levels.
33. VALIDITY OF LEASE. The Lease shall be effective only after
Tenant has received a fully executed copy of this Lease from Landlord.
34. TOXIC/HAZARDOUS MATERIALS CONSIDERATION. Upon request Lessor will
make available a Toxic Report that shows Benzene under the garage area. This
is being monitored by the County Health Department at this time. Lessor
believes it does not present a hazard.
THE PARTIES HAVE EXECUTED THIS LEASE THE DATE AND YEAR SET BELOW THEIR
SIGNATURE:
LANDLORD TENANT
NINE-C CORPORATION X. X. Xxxxxxx
Capital Resources
By:/S/ XXXXX X. XXXXXX By:/S/ XXXXXX X. XXXXXXX
---------------------------- ----------------------------
Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxxx
Title: President Title: Principal
Date: 5/22/97 Date: 5/22/97
---------------------------- ----------------------------
By:/S/ X.X. XXXXXXX
----------------------------
X.X.Xxxxxxx, an individual
