1
EXHIBIT 10.96
LEASE
This Lease is made and entered into as of the 18 day of September 1996, by
and between TRANSCO SYNDICATE #1 LTD, an Illinois corporation, hereinafter
referred to as "Landlord," and CHANNEL ISLANDS YMCA, a not-for-profit
corporation, hereinafter referred to as "Tenant." For and in consideration of
the rental and of the covenants and agreements, hereinafter set forth to be
kept and performed by the Tenant, Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord the premises herein described for the term, at the
rental and subject to and upon all of the terms, covenants and agreements
hereinafter set forth.
1. DESCRIPTION OF PREMISES:
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord,
upon the terms and conditions herein set forth, 6,012 square feet of the
easterly ground floor of the commercial building known as 0000 Xxxxxxx Xxxx,
Xxxx xx Xxxxxxx, Xxxxxx of Santa Xxxxxxx, State of California (hereinafter "the
Premises"). Tenant's Premises of Landlord's building is outlined on a floor
plan of the Premises which is attached hereto as Exhibit "A" and incorporated
herein.
2. TERM:
The term of this Lease shall be for twenty four (24) full calendar months,
commencing on November 1, 1996, and herein called the "term". As used in this
Lease, the term "Lease Term" shall mean the term of this Lease as specified in
this paragraph and any extensions thereof. Tenant shall have access to the
Premises, without charge of rent, to install equipment and complete
modifications approved by Landlord, commencing on October 1, 1996.
3. RENT:
Tenant agrees to pay to Landlord as rent in lawful money of the United
States without deduction or offset at such place or places as may be designated
from time to time by the Landlord the following:
A. Rent. Lessee agrees to pay Lessor at rent without abatement, offset or
deduction, the sum of Four Thousand Five Hundred Nine Dollars ($4,509.) in
advance, beginning on November 1, 1996, and Four Thousand Five Hundred Nine
Dollars ($4,509.) on the first day of each and every succeeding calendar month
through the first twelve (12) months of one Lease Term. Beginning with the
thirteenth (13th) month of the Lease Term and continuing through the twenty
fourth (24th) month of the Lease Term, Lessee agrees to pay Lessor as rent
without abatement, offset of deduction the sum of
2
Four Thousand Eight Hundred Nine and Sixty Cents ($4,809.60) in advance,
beginning on the first day of said thirteenth (13th) month and continuing at
such rate on the first day of each of each and every succeeding calendar month
through the twenty fourth (24th) month of the Lease Term. Rent for any
fractional month at the beginning or end of the term shall be prorated on the
basis of a thirty-day month.
(i) A service charge equal to ten percent (10%) of the total outstanding
balance will be added to all accounts for which any payment required by Tenant
to pay under this Lease has not been received in Landlord's accounting office
on or before the tenth (10th) of the month.
4. OPTION TO EXTEND - RENEWAL TERM:
Provided Tenant is not in default under the terms of this Lease, and
provided Landlord nor one of its related affiliates desires to retake, occupy
and use the Premises for their own occupancy and use (which shall be determined
in Landlord's sole discretion and upon written notice given to Tenant on or
before May 1, 1998). Tenant shall have the option to renew this Lease for three
(3) additional periods of twelve (12) months each upon the same terms and
conditions as provided herein and upon giving written notice of exercise of its
option to renew at least sixty (60) days prior to the end of the original Lease
Term. The fixed rent for each such twelve (12) month renewal Lease Term shall
be increased in the amount of five cents ($.05) per square foot (being a
$300.60 per month increase), which shall then be added to the ending monthly
rental sum of the expiring Lease Term.
A. As used herein, the term "related affiliate(s)" shall mean any entity,
company, corporation, or business under at least twenty percent (20%) common
control or ownership by the same person, corporation, partnership, or entity as
controlling Lordlord (including multi-tier control).
5. SECURITY DEPOSIT:
Concurrently with Tenant's execution of this Lease, Tenant shall deposit
with Landlord as a security deposit the sum of ($1,000.). Said sum shall be
held by Landlord as a security deposit for the faithful performance by Tenant
of all the terms, covenants, and conditions of this Lease. If Tenant defaults
with respect to any provisions of this Lease, including but not limited to this
provision relating to the payment of rent, Landlord, may (but shall not be
required to) use, apply or retain all or any part of the security deposit for
the payment of any amount due and payable under this Lease, for the payment of
any other amount which Landlord may spend by reason of Tenant's default or to
compensate Landlord for any other loss or damage which Landlord may suffer by
reason of Tenant's default. If any portion of the security deposit is so used
or applied, Tenant shall, within ten (10) days after written demand therefor,
deposit cash with Landlord in an amount sufficient to restore the security
deposit to its original amount, and Tenant's failure to restore the security
deposit shall be a material breach of this Lease. Landlord shall not be
2
3
required to keep the security deposit separate from its general funds, and
Tenant shall not be entitled to interest on such deposit. Provided that Tenant
is not in default hereunder, upon the expiration of the Lease term and after
Tenant has vacated the Premises, Landlord shall return the security deposit,
less any sums Landlord is entitled to keep, to Tenant (or at Landlord's option,
to the last assignee of Tenant's interest hereunder). In the event of
termination of Landlord's interest in this Lease, Landlord shall transfer said
deposit to Landlord's successor in interest whereupon Tenant agrees to release
Landlord from liability for the return of such deposit or the accounting
therefor.
6. TAXES:
A. Personal Property Taxes. Tenant shall pay, prior to delinquency, all
taxes assessed against and levied upon fixtures, furnishings, equipment and all
other personal property of Tenant contained in the Premises, and when possible,
Tenant shall cause said fixtures, furnishings, equipment and other personal
property to be assessed and billed separately from the real property of
Landlord. In the event any or all of Tenant's fixtures, furnishings, equipment
and other personal property are assessed and taxed with Landlord's real
property, then Tenant shall pay to Landlord its share of such taxes, as
additional rent, in accordance with the provisions of Paragraph 3. For the
purpose of determining said amount, figures supplied by the County Assessor as
to the amount so assessed shall be conclusive. Tenant shall comply with the
provisions of any law, ordinance or rule of taxing authorities which requires
Tenant to file a report of Tenant's property located in the Premises.
B. Real Property Taxes. Landlord shall be responsible for all real
property taxes (as hereinafter defined) levied or assessed against the Premises
during the term of this Lease.
For the purpose of this Lease, "real property taxes" means and includes
without limitation all taxes, assessments (including, but not limited to,
assessments for public improvements or benefits), taxes based on vehicles
utilizing parking areas, taxes based or measured by the rent paid, payable or
received under this Lease, taxes on the value of the Premises, environmental
surcharges, and all other governmental impositions and charges of every kind and
nature whatsoever, whether or not customary or within the contemplation of the
parties hereto and regardless of whether the same shall be extraordinary or
ordinary, general or special, unforeseen or foreseen, or similar or dissimilar
to any of the foregoing which, at any time during the Lease term, shall be
applicable to, assessed, levied or imposed upon the Premises or Unit or become
due and payable and a lien or charge upon the Premises or Unit or any part
thereof, under or by virtue of any present or future laws, statutes, ordinances,
regulations, or other requirements of any governmental authority whatsoever.
The term "environmental surcharges" shall mean and include any and all
expenses, taxes, charges or penalties imposed by the Federal Department of
Energy, the Federal Environmental Protection Agency, the Federal Clean Air Act,
or any regulations promulgated thereunder or any other local, state of federal
governmental agency or entity now or hereafter vested with
3
4
the power to impose taxes, assessments or other types of surcharges as a means
of controlling or abating environmental pollution or the use of energy. The term
"real property taxes" shall not include any federal, state or local income,
estate or inheritance tax imposed on Tenant.
7. USE OF PREMISES:
A. Use. The Premises shall be used and occupied by Tenant solely for the
use of YMCA business offices and for YMCA activities, and for no other purpose
without the prior written consent of Landlord. Tenant covenants and agrees that
it will continuously and uninterruptedly, from and after taking possession of
the Premises, operate and conduct on the Premises only those uses which it is
permitted to operate under the provisions of this Lease.
B. Suitability. Tenant acknowledges that neither Landlord nor Landlord's
agents have made any representation or warranty with respect to the Premises or
the building or the real property or with respect to the suitability of the
same Tenant's uses, including without limitation any representation concerning
the number or identity of other tenants or prospective tenants in the building,
nor has Landlord agreed to undertake any modification, alteration or
improvement to the Premises except as provided in this Lease. The taking of
possession of the Premises by Tenant shall conclusively establish that the
Premises and building were at such time in good order, condition and repair and
that Landlord's work with respect to the Premises has been completed.
C. Prohibited Uses; Compliance with Laws.
(i) Tenant shall not do or permit anything to be done in or about the
Premises nor bring or keep anything which will in any way increase the existing
rate of or otherwise affect any fire or other insurance covering the Premises
or the building, or any of its contents, whether the insurance is maintained by
Landlord, Tenant or other tenants, or cause a cancellation of any such
insurance policy. Tenant shall not sell or permit to be kept, used or sold in
or about the Premises any articles which may be prohibited by a standard form
of fire insurance policy. In the event any costs of any such insurance are
increased as a result of Tenant's failure to comply with the provisions of this
Lease, Tenant shall pay to Landlord, as additional rent, said increased costs,
plus interest from the date of expenditure, at the highest rate then permitted
under California law, within ten (10) days after Landlord gives Tenant written
notice of said increase.
(ii) Tenant shall not (a) do or permit anything to be done in or about the
Premises which will in any way obstruct or interfere with the rights of other
tenants or occupants of this building or annoy them; (b) use or allow the use
of the Premises for any unlawful or objectionable purpose; (c) cause, maintain
or permit any nuisance in, or about the Premises or the building; (d) commit or
suffer to be committed any waste in or upon the Premises; (e) place or operate,
or permit to be placed or operated, electronic games or amusement devices on
the Premises or (f) perform or carry
4
5
on any practice which may cause damage or deface the Premises or any part of
the building.
(iii) Tenant shall not use the Premises or permit anything to be
done in or about the Premises which will in any way conflict with any law,
statute, ordinance or governmental rule or regulation or requirement of duly
constituted public authorities now in force or which may hereafter be enacted
or promulgated. Tenant shall, at its sole cost and expense, promptly comply
with all permit and licensing ordinances and regulations applicable to Tenant's
use of the Premises and with all other laws, statutes, ordinances and
governmental rules, regulations or requirements now in force or which may
hereafter be in force and with the requirements of any fire rating bureau or
other similar body relating to or affecting the condition, use or occupancy of
the Premises. The judgment of any court of competent jurisdiction or the
admission of Tenant in any action against Tenant, whether Landlord be a party
thereto or not, that Tenant has violated any law, statute, ordinance or
governmental rule, regulation or requirement, shall be conclusive of that fact
as between Landlord and Tenant.
(iv) In the event Tenant is unable to obtain the appropriate licenses,
permits, zoning variances, or any other governmental approvals to utilize the
property for its intended uses under this Lease, Tenant, at its option, may
immediately terminate this Lease without penalty.
8. UTILLTIES:
A. Monthly Charge. Tenant agrees to pay Landlord as additional rent for all
gas, electricity, water, and normal trash removal supplied to the Premises by
Landlord the sum of thirty-two cents ($.32) per square foot per month (being
$1,923.84 per month) under the same terms and conditions set forth in Paragraph
3. for the basic rent. Tenant shall pay prior to delinquency, all charges
(including all taxes thereon) for telephone and janitorial services and any
other utilities not specifically otherwise provided for herein, materials, and
services supplied to the Premises during the Lease Term and shall hold Landlord
harmless from any liability therefrom. Landlord shall not be liable for any
damages which may result from any failure or interruption of any utility
service being furnished to the Premises unless such failure is caused by
Landlord, and no such failure or interruption shall entitle Tenant to
terminate this Lease or to any abatement of rent.
5
6
B. Provision for Cost of Living Utility Increase. The minimum monthly
charge of thirty-two (.32) cents per square foot per month for certain
utilities supplied to the Premises as provided for by Subparagraph A of this
Paragraph 8 shall be adjusted annually commencing the first month of the second
year of the Lease Term hereof, and annually thereafter each year Tenant
occupies the Premises: Prior to the applicable adjustment date, the parties
shall ascertain from the official Consumers' Price Index (All Items) for all
urban consumers (1982-84 = 100 Base) as published by the Bureau of Labor
Statistics, United States Department of Labor for the Los Angeles-Long
Beach-Anaheim area (the "Index"). The Index figure for the month of the
commencement day shall be the Initial Base Period Index. The minimum monthly
utility charge payable by Tenant commencing on said adjustment date shall be
determined by multiplying the initial minimum monthly utility charge of
$1,923.84 set forth in Paragraph 8.A. above by a fraction, the numerator of
which shall be the Index figure for the month of the adjustment date as
hereinabove provided and the denominator of which shall be the Initial Base
Period Index. The monthly minimum utility charge as established in Paragraph
8.A above shall be adjusted accordingly.
If the Index shall no longer be published, then appropriate reference
figures for the Base Period and the Comparison Period shall be derived from any
successor or comparable index mutually agreed by the parties to be
authoritative, and if the parties are unable to agree, then the substituted
Index shall be selected by the then presiding Judge of the Superior Court for
the County of Santa Barbara, California, upon the application of either party.
In any event, the base used by any new Index or as revised on the existing
Index base shall be reconciled to the 1982-84 Index.
9. COMMON AREA OPERATION:
A. Common Area Definition and Use. The term "common area" as used herein
shall mean all areas and facilities in the building and on the real property,
including, without limitation, driveways, sidewalks, landscaped areas, and
service areas. Landlord hereby grants to Tenant, its subtenants, licensees,
invitees, customers and employees, the nonexclusive right to use the common
area in common with Landlord, other tenants and their respective subtenants,
licensees, invitees, customers, and employees, subject to the provisions of
this Lease and to such rules and regulations pertaining to the use of the
common area as Landlord shall make from time to time. Landlord expressly
reserves the right to alter any part of the common area at its sole discretion.
B. Maintenance. Landlord shall operate, manage and maintain the common
area in a reasonably commercial condition. The manner in which the common area
shall be maintained and the expenditures thereof shall be at the sole
discretion of Landlord.
C. Parking Areas. Tenant shall have 21 parking spaces located on
Landlord's real property as set forth in Exhibit "B" attached hereto and made a
6
7
part hereof. Such designated parking spaces shall be the sole parking spaces on
Landlord's real property to be used by Tenant, its officers, directors,
employees, members, invitees, and guests. Landlord reserves the right to
promulgate such reasonable rules and regulations relating to the use of the
parking areas as Landlord may deem appropriate for the best interest of the
tenants of the building. Landlord shall have the right to temporarily close all
or any portion of the parking area for purposes of normal maintenance and
repairs. The parking area shall not be used for any purpose other than the
parking of motor vehicles during business hours and the ingress and egress of
pedestrians and motor vehicles. No overnight parking use of vehicles shall be
made by Tenant except for official YMCA owned vehicles.
10. MAINTENANCE AND REPAIRS:
A. Landlord's Obligations. Subject to the provisions of Paragraph 16,
Landlord, at its sole cost and expense, shall maintain, in a good state of
repair, the surface and structural parts of the roof, exterior walls (excluding
the interior of all walls and the exterior and interior of all windows, doors,
plate glass and show cases), all sewer, water, electric, gas lines and other
utility lines of any nature which lie under, within the walls, in the ceiling,
or on the roof of the Premises (excluding any such lines which have been
installed by Tenant), and foundations of the Premises and building, provided
however that in the event any maintenance and repairs are made necessary by the
wrongful act or omission of Tenant or its employees, agents, members or
invitees, Tenant shall pay to Landlord within ten (10) days after written
demand, as additional rent, the actual cost of such maintenance and repairs
plus interest from the date of expenditure at the highest rate then permitted
under California law. Landlord shall have no obligation to make repairs under
this Paragraph until a reasonable time after Tenant has notified Landlord in
writing of the need for such repair and maintenance.
B. Tenant's Obligations. Except as otherwise provided in this Lease,
Tenant, at Tenant's sole cost and expense, shall maintain the Premises and
appurtenances and every part thereof (excepting only those items which Landlord
is specifically obligated to maintain or repair pursuant to Paragraphs 9.A and
10.A) in good order, condition and repair including without limitation, all
interior walls, partitions and floors, floor coverings, interior surfaces of
the ceilings, doors, windows, plate glass, show cases, all electrical, plumbing
and lighting systems and equipment, including all heating, refrigeration and
evaporative cooling equipment, and any fixtures, signs and equipment installed
by or at the expense of Tenant.
Tenant shall maintain and repair the heating, ventilation and air
conditioning systems and equipment that service the Premises, but shall
coordinate any such maintenance and repair with Landlord (with ultimate control
thereof being within Landlord's sole discretion).
Should Tenant fail to make repairs required by Tenant hereunder within
five (5) days after notice is given by Landlord, Landlord, in addition to all
other remedies
7
8
available hereunder or by law and without waiving any alternative remedies, may
make the repairs, and in that event, Tenant shall reimburse Landlord, as
additional rent, for the cost of such maintenance or repairs, plus interest at
the highest rate then permitted by California law, within ten (10) days after
written demand by Landlord.
11. ALTERATIONS:
A. Alterations by Tenant. Tenant shall not make, or suffer to be made, any
alterations, improvements or additions (collectively "alterations"), in, on,
about or to the Premises or any part thereof, without the prior written consent
of Landlord and without a valid building permit issued by the appropriate
governmental authority. As a condition to giving such consent, Landlord may
impose such requirements as Landlord in its sole discretion deems necessary,
including without limitation requirements that (i) Tenant agree to remove any
such alterations at the termination of this Lease' and to restore the Premises
to their prior condition; and (ii) Tenant secure a completion and lien
indemnity bond satisfactory to Landlord for said work; and (iii) Landlord may
approve the contractor for such alterations and limit the times during which
the alteration work may be done. Unless Landlord requires that Tenant remove
any such alteration, the alteration, except movable furniture and trade fixture
not affixed to the Premises, shall become the property of Landlord upon
installation and shall remain upon and be surrendered with the Premises at the
termination of this Lease. By execution of this Lease, Landlord hereby approves
those building alteration plans proposed by Xxxx Xxxxx dated 9-17, 1996.
Tenant shall not permit any mechanic's or materialmen's liens to be placed
on the Premises and shall indemnify, defend and hold Landlord harmless against
any liens, claims, demands, encumbrances or judgments relating to any labor or
services performed or materials furnished for such alternations to the
Premises.
Tenant shall also give Landlord written notice five (5) days prior to
commencement of services or receipt of material for such alterations and shall
permit Landlord to post a notice of nonresponsibility in accordance with the
statutory requirement of California Civil Code Section 3095 or any amendment
thereof.
B. Tenant's Personal Property. Tenant shall install in the Premises such
trade fixtures, signs and equipment as Tenant deems desirable. All articles of
personal property and all business and trade fixtures, machinery and equipment,
furniture and movable partitions owned or installed by Tenant in or on the
Premises shall be and remain the property of Tenant, and may be removed by
Tenant at any time during the Lease term provided Tenant is not in default
hereunder, and provided further that Tenant shall repair damage caused by such
installation, use or removal. If Tenant fails to remove all of its effects from
the Premises upon termination of this Lease, Landlord may, at its option,
remove the same in any manner that Landlord shall choose, and store said
effects without liability to Tenant for loss thereof. Tenant agrees to pay
Landlord within ten (10) days after written demand, as additional rent, any and
all expenses incurred in such removal, including court costs and attorney's fees
and storage charges on such effects for
8
9
any length of time that the same shall be in Landlord's possession, plus
interest from the date of expenditure at the highest rate then permitted by
California law. Landlord may, at its option and without notice, sell any or all
of said effects, at private sale and without legal process, for such price as
Landlord may obtain and apply the proceeds of such sale to (i) any amount due
under this Lease from Tenant to Landlord and (ii) the expense incident to the
removal and sale of said effects.
12. LANDLORD'S ENTRY:
Tenant shall allow Landlord or Landlord's agents, representatives,
employees or contractors, to enter upon the Premises at reasonable times to
inspect the Premises, to perform required maintenance and repair, to make such
additions or alterations to the Premises as Landlord deems necessary or
desirable, and to show the Premises to prospective purchasers or tenants and
post "for sale" and "for lease" signs. Landlord may, in connection with any
such alterations, additions, or repairs, erect scaffolding, post relevant
notices, and place movable equipment without any obligation to reduce Tenant's
rent for the Premises during such period, provided that Tenant's entrance to
the Premises shall not be blocked thereby and that the authorized uses of the
Premises by Tenant shall not be interfered with unreasonably. Tenant hereby
waives any claim for damages for any injury or inconvenience to or interference
with Tenant's authorized uses of the Premises by, any loss of occupancy or
quiet enjoyment of the Premises, and any other loss occasioned thereby. For
each of the aforesaid purposes, Landlord shall have the right to use any and
all means which Landlord may deem proper to open said doors in any emergency in
order to obtain entry to the Premises, and any entry to the Premises by
Landlord shall not under any circumstances to construed or deemed to be a
forcible or unlawful entry into, or detainer of, the Premises, or an eviction
of Tenant from the Premises or any portion thereof.
13. LIENS:
Tenant shall keep the Premises and the building free from any liens
arising out of work performed, materials furnished, or obligations incurred by
Tenant and shall indemnify, hold harmless and defend Landlord from any claims,
liens, attachments, encumbrances and litigation arising out of any work
performed or materials furnished by or at the direction of Tenant relating to
the Premises. In the event that Tenant shall not, within twenty (20) days
following the imposition of any such lien, cause such lien to be released of
record by payment or posting of a proper bond, Landlord shall have, in addition
to all other remedies provided herein and by law, the right but not the
obligation to cause the same to be released by such means as it shall deem
proper, including payment of the claim giving rise to such lien or filing of a
bond in favor of any lien claimant. All such claims paid by Landlord and all
expenses incurred by it in connection therewith, including attorney's fees and
costs, shall be payable to Landlord by Tenant as additional rent, with ten (10)
days after written demand, with interest from the date of expenditures at the
highest rate then permitted by California law. Landlord shall have the right at
all times to post and keep posted on the Premises any notices of
nonresponsibility or other.
9
10
notices permitted or required by law, or which Landlord shall deem proper, for
the protection of Landlord and the Premises from mechanics' and materialmen's
liens.
14. INDEMNITY:
Tenant shall indemnify, defend and hold Landlord harmless from and against
any and all claims (i) arising out of Tenant's use of the Premises or the
common area or the conduct of its business; or (ii) arising out of any
activity, work or thing done, permitted or suffered by Tenant in or about the
Premises or the common area, (iii) arising from any breach or default in the
performance of any obligation on Tenant's part to be performed under the terms
of this Lease; (iv) arising from any act or negligence of Tenant, or any of its
officers, directors, members, invitees, agents, contractors, or employees; or
(v) arising out of Tenant's sharing the Premises with any other tenants,
sublessee or partners. Tenant shall further indemnify and hold Landlord
harmless from and against any and all costs, attorneys' fees, expenses and
liabilities incurred in connection with such claim or any action or proceeding
brought thereon. In case any action or proceeding is brought against Landlord
by reason of any such claim, Tenant upon notice from Landlord shall defend the
same at Tenant's expense by counsel reasonably satisfactory to Landlord. Tenant
shall not be liable for damage or injury occasioned by the sole negligence or
willful misconduct of Landlord and its designated agents or employees, unless
the same are covered by insurance Tenant is required to provide.
15. INSURANCE:
A. Liability Insurance. Tenant shall, at Tenant's sole cost and expense,
but for the mutual benefit of Landlord and Tenant, maintain throughout the
Lease term comprehensive public liability insurance against claims for personal
injury, death or property damage occurring in or about the Premises, including,
without limitation, sidewalks directly adjacent to the Premises and such other
areas as Tenant, its officers, directors, members, agents, employees,
contractors, and invitees shall have the right to use pursuant to this Lease.
Such insurance shall have combined single limit of not less than $1,000,000 for
liability coverage and $50,000 for property damage coverage and shall name
Landlord (and such other persons or entities as Landlord may designate) as an
additional insured. Such insurance shall also insure performance of the
indemnity agreement contained in Paragraph 14. of this Lease. Such liability
insurance shall be primary and not contributing to any insurance available to
Landlord, and Landlord's insurance (if any) shall be in excess thereto.
B. Fire and Extended Coverage: Landlord shall maintain during the Lease
term, fire, extended coverage, special extended insurance, including vandalism
and malicious mischief coverage, earthquake and "difference in conditions"
insurance, in an amount equal to the full replacement cost of the building,
exclusive of Tenant's fixtures, furnishings, equipment and other personal
property. Tenant shall have no interest in or any right to the proceeds of any
insurance procured by Landlord on the building, the Premises or real property.
10
11
C. Form Policies. The policies required by Paragraph 15.A shall be in a
form reasonably satisfactory to Landlord, with an A.M. Best "A" rated or better
insurer and a certificate as to such insurance shall be delivered to Landlord.
Tenant shall have the right to provide the insurance coverage that it is
obligated to provide in a blanket policy, provided such blanket policy
expressly affords coverage to the Premises and to Tenant and Landlord as
required by this Lease. Tenant shall obtain a written obligation on the part of
any insurance company providing such insurance to notify Landlord in writing of
any delinquency in premium payments and, at least ten (10) days prior thereto,
of any cancellation of any such policy. Tenant agrees that if Tenant does not
take out such insurance or keep the same in full force and effect, Landlord may
take out the necessary insurance and pay the premiums therefor, and Tenant
shall repay to Landlord, as additional rent and within ten (10) days after
written demand, the amount so paid plus interest from the date of expenditure
at the highest rate then permitted by California law.
D. Waiver of Subrogation. Landlord and Tenant each hereby waive any and
all rights of recovery against the other or against the officers, employees,
agents and representatives of the other, on account of loss or damage
occasioned to such waiving party or its property or the property of others
under its control to the extent that such loss or damage is insured against
under any fire and extended coverage insurance policy which either may have in
force at the time of such loss or damage.
E. Plate Glass Insurance. Tenant, at its sole cost, shall be responsible
for the maintenance, repair, and replacement of all plate glass in or enclosing
the Premises and shall procure insurance on such plate glass.
16. EMINENT DOMAIN:
In the event the leased Premises or any part thereof be appropriated or
taken under the power of eminent domain, this Lease shall terminate as to the
part taken as of the date of taking actual possession thereof. Any award shall
be paid and belong to Landlord except any award for the taking of or damage to
the fixtures and equipment of Tenant. Landlord shall be entitled to the entire
award for the real property, including Tenant's leasehold interest therein.
Tenant shall be entitled to any award to which it is otherwise entitled which
shall not reduce the award to Landlord.
In the event the portion of the leased Premises remaining after such
taking is not reasonably adequate for the operation of the business of Tenant,
Tenant may, at its option, terminate this Lease as of the date of the taking of
actual possession by the condemning authority by giving written notice thereof
to Landlord with ten (10) days after such taking of possession. In the event
Tenant may not or does not terminate this Lease as hereinbefore provided, then
the minimum rent payable under the terms of this Lease shall be reduced from and
after the date of taking of possession in the proportion that the floor area
taken bears to the floor area of the leased Premises immediately prior to such
taking.
11
12
17. ASSIGNMENT AND SUBLETTING:
Landlord's Consent Required. Tenant shall not assign all or any part of
its interest in this Lease, sublet all or any part of the Premises, transfer
any interest of Tenant therein or permit any use of the Premises by another
party (any and all such acts being collectively referred to herein as a
"transfer") without the prior written consent of Landlord, and attempt to do so
without such consent being first had and obtained shall be wholly void and
shall constitute a breach of this Lease. Landlord shall not unreasonably
withhold its consent to a transfer provided that the provisions of this
Paragraph 17 are met.
18. DEFAULT. REMEDIES:
A. Events of Default. The occurrence of any of the following events
("Event of Defaults") shall constitute a material default and breach of this
Lease by Tenant:
(i) Any failure by Tenant to pay the rent, additional rent, or any
other monetary sums required to be paid hereunder within ten (10) days after
the same shall have become due;
(ii) The abandonment or vacation of the Premises by Tenant;
(iii) A failure by Tenant to observe and perform any other provisions
of this Lease to be observed or performed by Tenant, where such failure
continues for ten (10) days after written notice thereof by Landlord to Tenant;
provided, however, that if the nature of the default is such that the same
cannot reasonably be cured within said ten (10) day period, Tenant shall not be
deemed to be in default if Tenant shall within such period commence such cure
and thereafter diligently prosecute the same to completion.
B. Remedies. Should Tenant at any time be in default hereunder with
respect to any rental payments or other charges payable to Landlord hereunder
or should Tenant be in default in the performance of any other of its promises,
covenants or agreements herein contained and should such default continue for
three (3) days after written notice thereof from Landlord to Tenant specifying
the particulars of such default, or should Tenant vacate or abandon the demised
Premises, then in any of such events and in addition to any or all other rights
or remedies of Landlord hereunder and/or by the law provided at the option of
Landlord, Landlord may declare the term hereof ended and reenter the demised
Premises and take possession thereof and remove all persons therefrom, and
Tenant shall have no further claim thereon or thereunder.
Nothing herein shall affect the rights of the parties under statutory
provisions, Section 1951.2 ofthe California Civil Code is incorporated herein
by reference and as may be amended from time to time, relating to actions for
unlawful detainer,
12
13
forcible entry, and forcible detainer; provided, however, after Landlord obtains
possession of the property under a judgment for restitution or forfeiture of
Tenant's interest, Landlord will no longer be entitled to treat this Lease as
continuing in effect unless Tenant obtains relief from the forfeiture or a
restitution to its former state under the statutory provisions applicable. The
bringing of any action described in this subparagraph shall not affect
Landlord's right to bring a separate action for relief on termination, for
liquidated damages, or in equity; but Landlord shall recover no damages in the
subsequent action for any detriment for which a claim for damages was made and
determined on the merits in the action.
In the event of any entry or taking possession of the demised Premises by
Landlord under this Xxxxxxxxx 00, Xxxxxxxx shall have the right, but not the
obligation, to remove therefrom all or any part of the personal property
located therein and may place the same in storage at a public warehouse at the
expense and risk of the owner or owners thereof.
The remedies given to Landlord herein shall be cumulative and in addition
and supplemental to all other rights or remedies which Landlord may have under
the laws then in force.
19. ATTORNEY'S FEES; COSTS OF SUIT:
If either Tenant or Landlord brings any action for any relief against
the other, declaratory or otherwise, arising out of this Lease, including any
suit by Landlord for the recovery of rent or possession of the Premises, the
losing party shall pay to the successful party a reasonable sum for attorney's
fees which shall be deemed to have accrued on the commencement of such action
and shall be paid whether or not such action is prosecuted to judgement. Should
Landlord, without fault on Landlord's part, be made a party of any litigation
concerning this Lease, Tenant shall indemnify, defend and hold Landlord harmless
from all liability or claims of liability, including damages, costs and
reasonable attorney's fees, incurred by Landlord in connection with such
litigation.
20. SURRENDER OF PREMISES:
On expiration of the Lease term, or on sooner termination of the Lease,
Tenant shall surrender the Premises to Landlord in the same condition as
received, ordinary wear and tear excepted, and shall remove from the Premises
all of tenant's personal property and trade fixtures and such alterations,
additions and improvements as Landlord has indicated to Tenant must be removed
or restored, as the case may be. If the Premises are not so surrendered, Tenant
shall indemnify, defend and hold Landlord harmless from and against loss or
liability resulting from Tenant's delay, including without limitation any
claims made by any succeeding Tenant or losses to Landlord for lost rental
opportunities. Termination of this Lease shall not release Tenant from the
payment of any obligation or sum that accrued prior to said termination. The
voluntary or other surrender of this Lease by Tenant, or a mutual cancellation
thereof, shall not work a merger, and shall, at the
13
14
option of the Landlord, terminate all or any existing subleases or
subtenancies, or may, at the option of Landlord, operate as an assignment to it
of any or all such subleases or subtenancies.
21. SIGNS; USE OF BUILDING NAME:
A. Exterior Signs. Tenant shall not inscribe, paint, affix, place or
permit to be placed any new projecting sign, marquee, awning, advertisement,
sign, notice of placard on the exterior or roof of the Premises or upon or
about the entrance doors, windows, sidewalk or areas adjacent to the Premises
without Landlord's prior written consent, except that Tenant shall be allowed
to place on the exterior of the Premises a new sign which has been approved by
the City of Solvang or allowed by the sign ordinance of the City of Solvang,
provided, however, the location of such sign shall be mutually agreed upon
between Landlord and Tenant. Landlord reserves the right, in Landlold's sole
discretion, to place and locate on the roof, exterior sidewalls and rear wall
of the Premises or any portion of the building which is not leased to Tenant,
such notices, signs, marquees and advertisements as Landlord may deem
appropriate in the operation of Landlord's affairs. Landlord shall fully
cooperate with Tenant and/or any appropriate governmental authorities in
securing necessary and reasonable signage for Tenant's use of the Premises and
Landlord shall not arbitrarily, unreasonably or untimely withhold consent to
signage consistent with Tenant's needs and Landlord's development of the land.
22. RIGHTS RESERVED BY LANDLORD:
In addition and without limiting all other rights granted hereunder,
Landlord specifically reserves the right from time to time (i) to make changes
to, eliminate or add to the building, the common area and other improvements
located in or about the Premises, and (ii) to effect any other tenancies in the
building and grant anyone the exclusive right to conduct any particular
business or enterprise, other than Tenant's business as of the commencement
date, in the building or on the real property, except that no removal of
Tenant's designated parking spaces shall be allowed.
23. GENERAL PROVISIONS:
A. Captions; Exhibits, Defined Terms.
(i) The captions of the sections and paragraphs of this Lease are
for convenience only and shall not be deemed to be relevant in resolving any
questions of interpretation or construction of any section of this Lease.
(ii) Exhibits attached hereto, and addendums and schedules
initialed by the parties, are deemed by attachment to constitute part of this
Lease and are incorporated herein.
14
15
(iii) The words "Landlord" as "Tenants" as used herein shall
include the plural as well as the singular. Words used in neuter gender include
the masculine and feminine and words in the masculine and feminine gender
include the neuter. The term "Landlord" shall mean only the owner or owners at
the time in question of the fee title or of the tenant's interest in a ground
lease covering the Premises.
B. Entire Agreement. This instrument, along with any exhibits and
attachments hereto, constitutes the entire agreement between Landlord and Tenant
relative to the Premises and their agreement to lease the Premises, and this
Lease, the exhibits and attachments may be altered, amended or revoked only by
an instrument in writing signed by both Landlord and Tenant. Landlord and
Tenant agree hereby that all prior or contemporaneous oral agreements between
and among themselves and their agents or representatives relative to the leasing
of the Premises are merged in or revoked by this Lease.
C. Sevarability. If any term or provision of this Lease is, to any
extent, determined by a court of competent jurisdiction to be invalid or
unenforceable, the remainder of this Lease shall not be affected thereby, and
each term and provision of this Lease shall be valid and be enforceable to the
fullest extent permitted by law; provided, however, that if Tenant's
obligation to pay the rent (or other sums required to be paid by Tenant
hereunder) is determined to be invalid or unenforceable, then this Lease at the
option of Landlord shall terminate.
D. Time; Joint and Several Liability. Time is of the essence of this
Lease and each and every provision hereof, except as to the conditions relating
to the delivery of possession of the Premises to Tenant. All the terms,
covenants and conditions contained in this Lease to be performed by
either party, if such party shall be deemed to be joint and several, and all
rights and remedies of the parties shall be cumulative and nonexclusive of any
other remedy at law or in equity.
E. Binding Effect; Choice of Law. The parties hereto agree that all
provisions hereof are to be construed as both covenants and conditions as
though the words importing such covenants and conditions were used in each
separate paragraph hereof. Subject to any provisions hereof restricting
assignment or subletting by Tenant and subject to Paragraph 16, all of the
provisions hereof shall bind and inure to the benefit of the parties hereto and
their respective heirs, legal representatives, successors and assigns;
provided, however, that the obligations contained in this Lease to be performed
by Landlord shall be binding on Landlord's successors and assigns only during
their respective periods of ownership. This Lease shall be governed by the laws
of the State of California.
F. Waiver. No covenant, term or condition or the breach thereof shall
be deemed waived, except by written consent of the party against whom the waiver
is claimed, and any waiver of the breach of any covenant, term or condition
shall not be deemed to be a waiver of any preceding or succeeding breach of the
same or any other
15
16
covenant, term or condition. Acceptance by Landlord of any performance by Tenant
after the time the same shall have become due shall not constitute a waiver by
Landlord of the breach or default or any covenant, term or condition unless
otherwise expressly agreed to in writing by Landlord.
G. Interest on Past Due Obligations. Except as expressly herein
provided, any amount due to Landlord not paid when due shall bear interest from
the date due at the highest rate then permitted under California law.
Payment on such interest shall not excuse or cure any default by Tenant under
this Lease.
H. Notices. All notices or demands of any kind required or desired to be
given by Landlord or Tenant hereunder shall be in writing and shall be deemed
delivered upon personal delivery or forty-eight (48) hours after depositing the
notice or demand in the United States mail, certified, or registered postage
prepaid, addressed to Landlord or Tenant at the respective addresses set forth
as follows:
To LANDLORD:
TRANSCO SYNDICATE #1 LTD.
an Illinois corporation
X.X. Xxx 000
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
To TENANT:
CHANNEL ISLANDS YMCA
a not-for-profit corporation
Attn: Chief Financial Officer
00 Xxxxxxxxx Xxx
Xxxxx Xxxxxxx, XX 00000
I. Corporate Authority - Warranty. If Tenant is a corporation, each
individual executing this Lease on behalf of said corporation represents or
warrants that he is duly authorized to execute and deliver this Lease on behalf
of said corporation in accordance with a duly adopted resolution of the board
of directors of said corporation or in accordance with the bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. If Tenant is a corporation, Tenant sha1l, within thirty (30)
days after execution of this Lease, deliver to Landlord a certified copy of a
resolution of the board of directors of said corporation authorizing or
ratifying the execution of this Lease. Tenant shall execute any warranty of
lease that is requested/required by Landlord.
J. Contaminants. Tenant warrants that it shall not make any use of the
Premises which may cause contamination of the soil, sub-soil or ground water.
Tenant
16
17
shall not keep, or cause to be kept in, on or around the Premises any substance
controlled by any government or quasi-governmental regulatory agency unless
Tenant stores and handles said substance in strict compliance with any and all
applicable laws, rules and regulations. Tenant will remove said substances in
the legally prescribed manner when Tenant's occupancy is terminated. Tenant
shall not do, bring or keep anything in, on or around the Premises which will
cause a cancellation of any insurance covering the Premises.
K. Execution and Delivery of Lease. Tenant's signature on this Lease
constitutes an offer which shall not be deemed accepted by Landlord until
Landlord has executed this Lease and delivered an executed copy to Tenant.
L. General Interpretation. The terms of this Lease have been negotiated
by the parties hereto and the language used in this Lease shall be deemed to be
the language chosen by the parties hereto to express their mutual intent. This
Lease shall be construed without regard to any presumption or rule requiring
construction against the party causing such instrument of any portion thereof
to be drafted, or in favor of the party receiving a particular benefit under
the Lease. No rule of strict construction will be applied against any person.
M. Quiet Enjoyment. Landlord covenants and agrees with Tenant that upon
Tenant's payment of rent and other monetary sums due under this Lease and
performance of its covenants and conditions under this Lease, Tenant shall and
may peacefully and quietly have, hold and enjoy the Premises for the Lease
Term, subject however to the terms of this Lease. Landlord represents that, as
of the execution of this Lease, there are no ground leases, mortgages or deeds
of trust or other liens against the subject real property of Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease with the
respective dates shown below:
LANDLORD: TENANT:
TRANSCO SYNDICATE #1 LTD. CHANNEL ISLANDS YMCA
an Illinois corporation a not-for-profit corporation
By: [SIG] By: Xxxxxxx X. Xxxxxxxx
------------------------ -------------------------
Xxxxxxx X. Xxxxxxxx
Title: Secretary/General Counsel Title: Vice President
Dated: Sept. 11, 1996 Dated: Sept. 19, 1996
17
