EXHIBIT 10.7
[LETTERHEAD]
OFFICE SPACE LEASE AGREEMENT
THIS COMMERCIAL SPACE LEASE AGREEMENT ("Lease") is entered into as of
the date set forth in Article I by and between Landlord and Tenant upon the
following terms and conditions at San Diego, San Diego County, California.
LEASE PROVISIONS
1.0 WITNESSETH: Tenant hereby leases to Sublessee, and Sublessee hereby
hires from Tenant, on the terms and conditions set forth herein, the premises
described herein, as follows:
1.1 EFFECTIVE DATE: JANUARY 1, 1999
1.2 MASTER LANDLORD: San Diego Unified Port District
(SDUPD)
1.3 LANDLORD/MASTER TENANT/LESSEE: Shelter Cove Marina, Ltd. (SCM)
0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
1.4 TENANT/SUBLESSE: XXXXXXX & ASSOCIATES
MOBILE PET SYSTEMS, INC.
0000 XXXXXXX XXXXXX XXXXX #000/000
XXX XXXXX, XX 00000
1.5 MASTER LEASE:
That certain Lease Agreement dated August 25, 1992, by and
between Landlord, as the Master Tenant/Lessee, and the San Diego Unified
Port District, as Master Landlord. This has precedence over this Lease
between Landlord/Master Tenant/Lessee and Tenant/Sublessee.
1.6 BUILDING CONTAINING THE PREMISES:
That certain two-story commercial office building, the underlying
realty located at 0000 Xxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000.
1.7 LEASED PREMISES:
Suite 204/205 (Approximately 1,198 sq. ft.)
1.8 SCHEDULED COMMENCEMENT DATE:
JANUARY 1, 1999 for Suite 204/205
2.0 TERM:
The term of this Lease shall be for a period of (2) Two years
commencing on JANUARY 1, 1999, and ending at midnight on DECEMBER 31,
2000
LANDLORD: /s/ Illegible TENANT: /s/ Illegible
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3.0 RENT, OFFICE:
Tenant shall pay to Landlord as rental for the full term hereof
the sum of $57,504.00 dollars in lawful money of the United States, in
monthly installments of $2,396.00 each, payable in advance on the first
day of each calendar month of the term of this Lease (WITHOUT DEDUCTION,
OFFSET, PRIOR NOTICE OR DEMAND), plus the amount of all excise taxes or
other charges which may be levied by any government body on such
rental or receipt thereof. The rent shall be paid at the address set out
after the signature of Landlord in this Lease, or at such other place as
Landlord shall direct. Rent for partial months shall be prorated.
Receipt of the sum of $7,607.30 is hereby acknowledged by
Landlord. Of said sum, $2,396.00 shall be attributed to the First
Month's Rent (prorated), $239.60 to Port fees, $179.70 to CAM fees, when
the term of this Lease commences and the balance is a Security Deposit.
If Tenant shall pay all rent and observe and perform all of the terms,
covenants and conditions of this Lease during the term, and all
extensions and renewals thereof, Landlord will repay the Security
Deposit to Tenant, without interest within ten (10) days after Tenant
vacates the Premises. If Tenant defaults in any of the terms, covenants
or conditions of this Lease (INCLUDING, BUT NOT LIMITED TO, NONPAYMENT
OF RENT). Landlord may use or apply so much of the Security Deposit as
is required to cure or make good such default, or to indemnify Landlord
for loss or damage arising therefrom. Tenant agrees to restore Security
Deposit to the full original amount immediately upon receipt of demand
from Landlord therefor. The obligation to maintain the Security Deposit
in the full original amount is a rental obligation under this Lease.
3.1 OPTION PERIODS. Tenant shall have the right to extend the term of
this Lease for three (3) terms beyond the initial two (2) years, upon
the terms and conditions set forth herein (singularly, "Extension
Periods"). In the event Tenant elects to exercise the Extension Period,
Tenant must give written notice to Landlord on or before OCTOBER 01,
2000, OCTOBER 01, 2001 and OCTOBER 01, 2002 respectively. In the event
Tenant elects to exercise the Extension Period, Annual Rental for the
Premises shall be renegotiated between Tenant and Landlord on a "fair
market value" basis.
3.2 ASSIGNMENTS/ SUB-SUBLEASES. In the event an assignment of Sublease
is executed by Tenant the prior written consent of the Landlord and the
SDUPD is required in each instance.
3.3 OFFICE DEPOSIT(S). "FIRST RIGHT OF REFUSAL" may be obtained in
order to hold the space desired and to have first rights to that space.
The equivalent of two months rent or $4,792.00 will be deposited with
the Landlord with a letter of intent signed by both prospective Tenant
and acknowledged by Landlord.
"SECURITY DEPOSIT" Consists of two months rent or $4,792.00 and
will be paid to Landlord on execution of this sublease. Two (2) months
rent will be held as a total deposit for security for the duration of
the tenancy. Deposit will be returned provided premises are returned to
Landlord as they were received less normal depreciation. In the event
Tenant has deposited fees for the first Right of Refusal, these fees
will apply as the Security Deposit. Landlord will deduct from deposit
$239.60 (1,198 sq. ft. @ $0.20 per sq. ft.) for cleaning of the carpet at
end of lease.
3.4 MISCELLANEOUS CHARGES.
(a) Security Key Deposit: ($25.00 per key)
Tenant is entitled to one (1) key per owner or employee. Broken
keys may be replaced for a $10.00 fee. If Tenant loses a security key,
Tenant may obtain a replacement key upon tender of an additional deposit
of $25.00.
(b) Utilities (Electrical Power), CAM (Common Area Maintenance)
charges for office only.
Tenant will be provided utility (electrical power) services from 8 AM to
6 PM daily. Service at other times, including use by janitorial service,
will be initiated by Tenant using a metered timer device in the suite.
Real estate taxes (excepting taxes arising from Tenant's business) and
insurance (other than specified in paragraph 14) shall be paid by
Landlord. Utilities and CAM charges will be paid by the Tenant through a
pro-rata assessment based on the SDG&E xxxxxxxx and CAM costs currently
determined as $.15 per square foot of leased space. Square footage
assessment will be reviewed on an annual basis to accurately reflect
true costs.
4.0 POSSESSION:
If Landlord is unable to deliver possession of the Premises to
Tenant at the commencement of the term for any reason whatsoever, this
Lease shall not be void or voidable for a period of ninety (90) days
thereafter, nor shall Landlord be liable to Tenant for any loss or
damage resulting therefrom, but the rent shall xxxxx until Landlord
delivers possession of the Premises to Tenant. The term of this Lease
shall be extended for a period equal to any such delay and Tenant agrees
to pay the rent provided for herein and to perform all of the terms and
conditions of this Lease during such extension.
If Landlord is unable to deliver possession of the Premises to
Tenant within ninety (90) days after the commencement date, this Lease
may be terminated by either Landlord or Tenant by written notice to the
other at any time thereafter prior to the date possession is delivered
to Tenant.
5.0 CONSTRUCTION ON PREMISES:
5.1 Landlord, at its own expense, will perform the work and supply the
material specified in the schedule in Subparagraph 31.1. The goods and
services to be provided by Landlord shall be provided promptly and
diligently, in a first-class, workmanlike manner.
5.2 Tenant shall pay for goods and services, if any, specified in
Subparagraph 31.2 to be provided by Tenant. Except with the prior
written approval of Landlord, all work on the Premises shall be done by
contractors or other persons selected or employed by Landlord. Landlord
shall have the right to designate the time period when any work required
of Tenant is to be performed, subject to not unduly delaying the
completion of any such work by Tenant.
LANDLORD: /s/ Illegible TENANT: /s/ Illegible
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6.0 USE AND FEES:
Tenant shall use the Premises for general office
purposes and shall not use or permit the Premises to be used
for any other purpose without the prior written consent of
Landlord.
Tenant shall not do or permit anything to be done in
or about the Premises nor bring or keep anything therein
which will in any way increase the existing rate of or
affect any fire or other insurance upon the Building, or any
of its contents, or cause cancellation of any insurance
policy covering said Building or any part thereof or any of
its contents. Tenant shall not do or permit anything to
be done in or about the Premises which will in any way
obstruct or interfere with the rights of the other Tenants
or occupants of the Building or injury or annoy them or use
or allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the
Premises. Tenant shall not commit or suffer to be committed
any waste in or upon the Premises.
6.1 SPECIFIC USE OF PREMISES. Marine Recreational/
Commercial office.
Specifically Business Consulting Firm
-----------------------------------
The Premises shall be used solely for the use stated above
and for no other use or purpose.
6.2 SDUPD APPROVALS. Tenant must complete San Diego
Unified Port District (SDUPD). SUBLEASE
SUMMARY/QUESTIONNAIRE Application Form No. 618 with leases
five (5) years or less or Form No. 317 with leases in excess
of five (5) years to be filed with Landlord and SDUPD.
Tenant to pay SDUPD application fee (if applicable) to
Shelter Cove Marina, Ltd., (SCM), who will pass on fee to
SDUPD. On approval by the SDUPD, tenant may be required by
SDUPD to pay the appropriate SDUPD fees through Landlord
based on gross incomes from sources of income. SCM will in
turn pay the fees to the SDUPD as required. SDUPD rates to
Landlord/Tenant and Tenant/Sublessee are reviewed every five
(5) years. Sublease is subject to approval of the SDUPD.
6.2.1 INCREASE IN RENT CHARGED TO LANDLORD/SUBLESSOR.
In the event the SDUPD increases/decrease the amount
of percentage/flat rent that Landlord is required to
pay for the Port identified "water dependent" business
covered by the Sublease, and/or as a result of this
Sublease, the percentage/flat rent that Tenant pays
Landlord/Tenant shall automatically increase/decrease
at the same time. This rate will be equal or
proportional to the rate imposed by the SDUPD.
6.3 BUSINESS FEES.
6.3.1 PORT IDENTIFIED "WATER DEPENDENT"
BUSINESSES/FEES: Marine recreational (water dependent)
businesses are required by the Port and Shelter Cove
Marina to pay a percentage of gross revenues or a flat
fee for doing business on the tidelands.
BUSINESS PORT FEE/MONTH SCM FEE/MONTH
(1) Slip Revenues including LAB, SCM pays N/A
lockers & dock boxes.
(2) Boat Rentals w/Bare boat of 10% 3.5%
24 hrs. or less. $100 Minimum
(3) Boat Chartering of bare boats 6% 3.5%
or boats w/crews in excess of
24 hrs.
(4) Ship Chandlery Retail sales 5% N/A
(5) Sale of New & Used Boats $.36/sq. ft. of leased N/A
space per. brokerage
(6) OFFICE SPACE RENTALS
(TO BUSINESS NOT OTHERWISE 10% N/A
PAYNG A PORT FEE)
(7) Bicycle Rentals 10% 10%
(8) Coin Operated Vending on 25% if Leased 25% if Leased
Service Machines and 5% if Owned 5% if Owned
Telephones
(9) All Other Activities Under 10% 10%
Port Policy
6.3.2 TENANT BUSINESS FEES. For all businesses that
are Port identified marine recreational "water
dependent" and located at Shelter Cove Marina, a
percentage of gross revenues or flat fee identified in
paragraph 6.3.1 dictated by the SDUPD will be paid on
a monthly basis to Shelter Cove Marina which will be
"passed through" to the SDUPD.
SDUPD Percentage/Flat Fee: 10% OF GROSS OFFICE RENT
-----------------------------
In addition and according to the fee schedule, a
percentage of gross revenues or a flat fee equal to
the amount charged by the SDUPD will be paid to
Shelter Cove Marina for all Port identified marine
recreational "water dependent" businesses.
SCM Percentage/Flat Fee: N/A
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THESE FEES ARE DUE WITHIN 5 DAYS OF THE END OF THE
MONTH OF DOING BUSINESS.
6.3.3 MISCELLANEOUS PROVISIONS. SAN DIEGO UNIFIED
PORT DISTRICT FEES AS INDICATED IN 6.3 AND CAM CHARGES
AS LISTED IN 3.4.
6.3.4 ACCOUNTING RECORDS. The SDUPD shall have the
right to audit the Tenant accounting records and that
the records will be maintained in a manner satisfactory
to the SDUPD. The Landlord shall have the right to have
its President/General Partner or designated agent inspect
and audit the Tenant accounting records of its operations
at its main business office and that those records will
be maintained in a manner satisfactory to generally
accepted accounting principles.
6.3.5 PARKING. All parking is in the adjacent public
parking lot. Parking is limited to seventy two (72)
hours per SDUPD regulations. All spaces on the marina
building property are for SCM staff.
7.0 WASTE; NUISANCE. COMPLIANCE WITH LAWS:
Tenant shall not commit or allow the commission
of any waste upon the Premises, or any public or
private nuisance, or any other act or thing that may
disturb the quiet enjoyment of any other tenant in the
Building. Tenant shall not use the Premises or allow
their use, in whole or in part, for any purpose or use
that is in violation of any of the laws, ordinances,
regulations or rules of any public authority. A
judgment of any court of competent jurisdiction, or
the admission by Tenant in any action or proceeding
against Tenant, that Tenant has violated any such law,
ordinance, regulation or rule shall be a conclusive
determination of that fact as between Landlord and
Tenant.
8.0 SERVICES AND UTILITIES:
Provided that Tenant is not in default
hereunder, Landlord agrees to furnish to the Premises
during reasonable hours of generally recognized
business days, to be determined by Landlord at his sole
discretion, and subject to the rules and regulations
of the Building of which the Premises are a part,
electricity for normal lighting and fractional
horsepower office machines and heat and air
conditioning required in Landlord's judgment for the
comfortable use and occupation of the Premises.
Landlord shall also maintain and keep lighted the
common stairs, common entries and toilet/shower rooms
in the Building of which the Premises are a part.
Landlord shall not be liable, under any circumstances,
for a loss of or injury to property, however occurring,
through or in connection with or incidental to failure
to furnish any of the foregoing. Whenever heat
generating machines or equipment are used in the
Premises which affect the temperature otherwise
maintained by the air conditioning system, Landlord
reserves the right to install supplementary air
conditioning units in the Premises and the cost
thereof, including the cost of the installation, and
the cost of the operation and maintenance thereof
shall be paid by Tenant to Landlord upon demand by
Landlord.
Tenant will not, without written consent of
Landlord, use any apparatus or device in the Premises,
including, but without limitation thereto, electronic
data processing machines, punch card machines, and
machines using in excess of 120 volts, which will in
any way increase the amount of electricity usually
furnished or supplied for the use of the Premises as
general office space; nor connect with electric
current except through existing electrical outlets in
the Premises, any apparatus or device, for the purpose
of using electrical current. If Tenant shall require
electric current in excess of that usually furnished
or supplied for the use of the Premises as general
office space, Tenant shall first procure the written
consent of Landlord, which Landlord may refuse, to the
use thereof and Landlord may cause an electrical
current meter to be installed in the Premises, so as
to measure the amount of electric current consumed for
any such use. The cost of any such meters and of
installation, maintenance and repair thereof shall be
paid for by the Tenant and Tenant agrees to pay to
Landlord promptly upon demand therefor by Landlord for
all such electric current consumed as shown by said
meters, at the rates charged for such services by the
local public utility furnishing the same, plus any
additional expense insured in keeping account of the
electric current so consumed. If a separate meter is
not installed, such excess cost for such electric
current will be established by an estimate made by a
utility company or electrical engineer.
9. ABANDONMENT:
Tenant will not vacate, abandon or surrender the
premises during the term, and if Tenant does, or is
dispossessed by process of law, or otherwise, any
personal property belonging to Tenant left on the
premises shall be deemed to be abandoned at the option
of Landlord.
10. CONDITION OF PREMISES:
Tenant's taking possession shall be conclusive
evidence as against Tenant that the Premises were in
good order and satisfactory condition when Tenant took
possession. No promise to alter, remodel or improve
the Premises or the Building and no representation
respecting the condition of the Premises or the
Building have been made by Landlord to Tenant, unless
the same is set forth in Paragraph 31.1. Tenant
waives all right to make repairs at the expense of
Landlord, or to deduct the
cost thereof from the rent, and Tenant waives all rights under Section
1941 and 1942 of the Civil Code of the State of California. At the
termination of this Lease, by lapse of time or otherwise, Tenant shall
surrender the premises in as good a condition as when Tenant took
possession, ordinary wear and loss by fire or other casualty or
condemnation excepted, failing which lessor may restore the Premises to
such condition and Tenant shall pay the cost thereof to Landlord upon
demand.
11. ALTERATIONS AND REPAIRS:
Except for any initial leasehold improvements provided for in
Paragraph 31.1, Tenant shall not make or permit to be made any
alterations, additions, improvements or changes in the premises without
the prior written consent of Landlord. Subject to the services to be
rendered by Landlord as set forth in Paragraph 31.1, Tenant shall, at
Tenant's own expense, keep the Premises in good order, condition and
repair during term, including the replacement of all broken glass with
glass of the same size and quality under the supervision and with the
approval of Landlord. If Tenant does not make repairs promptly and
adequately, Landlord may, but need not make repairs, and Tenant shall
pay promptly the reasonable cost thereof. At any time or times,
Landlord, either voluntarily or pursuant to governmental requirement,
may, at Landlord's own expense, make repairs, alterations or
improvements in or to the Building or any part thereof, including the
Premises, and during such operations, Landlord may close entrances,
doors, corridors, elevators or other facilities, all without any
liability to Tenant by reason of interference, inconvenience or
annoyance; provided that Tenant shall have reasonable access to the
premises.
11.1 TRADE FIXTURES: Any and all improvements made to the Premises
during the term hereof shall belong to the Landlord upon the expiration
of the term, except trade fixtures of the Tenant. The Tenant may, upon
termination hereof, remove all of its trade fixtures, but shall repair
or pay for all repairs necessary for damages to the Premises occasioned
by or incident o the removal such that the premises shall be restored to
the Landlord in the same condition as they were at the time herein let,
regardless of the length of this Lease Term or its extension.
12. LIENS:
Tenant agrees to keep the Premises and the property on which the
premises are located free from any liens arising out of any work
performed, materials furnished, or obligations incurred by Tenant.
Tenant shall keep Landlord fully informed of any work of improvement on
the Premises and shall permit Landlord to post and record notices on
non-responsibility (WHEN APPROPRIATE) within ten (10) days after the
commencement of any work or improvement, so the Landlord's interest in
the premises will not be subject to mechanic's liens.
13. INDEMNIFICATION:
Tenant waives all claims against Landlord for damages to property,
or to goods, wares and merchandise stored in, upon or about the
Premises, and for injuries to the premises in, upon or about the
Premises from any cause arising at any time, and Tenant agrees to
indemnify and hold Landlord exempt and harmless for and on account of
any damages or injury to any person or property arising from the use of
the Premises by Tenant, from the failure of Tenant to keep the Premises
in good condition as herein provided, and from Tenant's failure to keep
the Premises free from liens in accordance with Paragraph 12. Landlord
shall not be liable to Tenant for any damage because of any act or
negligence of any co-sublessee or other occupant of the same building,
or by any owner or occupant of adjoining or contiguous property, nor for
overflow, breakage or leakage of water, steam, gas or electricity from
pipes, wires or otherwise. Tenant will pay for all damages to the
building and to the tenants and occupants thereof caused by Tenant's,
his agents', patients', clients' or invitees' misuse or neglect of said
premises, its apparatus of appurtenances.
14. LIABILITY AND FIRE INSURANCE:
14.1 Tenant agrees to carry and maintain in full force and effect
throughout the term of this Lease, comprehensive public liability and
property damage insurance covering the Premises. The policy of combined
single Limit, Bodily Injury and Property Damage insuring both Landlord
and Tenant against any liability arising out of the ownership, use,
occupancy or maintenance of the Premises in an amount not less than
$1,000,000 for one person $2,000,000 for one occurrence for bodily injury
and $500,000 for property damage. Tenant may comply with its insurance
obligations hereunder by endorsement to any blanket policy of insurance
carried by Tenant.
14.2 Tenant agrees to carry and maintain in full force and effect
throughout the term of this Lease, fire and extended coverage,
vandalism, malicious mischief, special extended perils (all risks), upon
the Premises, including all fixtures and equipment therein installed by
Landlord, for full replacement value thereof, as the same may exist from
time to time without deduction for depreciation, but exclusive of
excavations, foundations and footings. Tenant may comply with its
insurance obligation hereunder by endorsement to any blanket policy of
insurance carried by Tenant. Said insurance shall name Landlord, and, if
applicable, pursuant to sublease, at Landlord's request, the holder of
any first mortgage or first Deed of Trust encumbering the Premises as
additional insured, and, at Tenant's option, any leasehold mortgagee,
as their interests may appear.
If Landlord's insurance rates for the premises are increased at any
time during the term as a result of the nature of Tenant's use or
occupancy of the premises, Tenant agrees to reimburse Landlord for the
full amount of such increase immediately upon receipt of demand from
Landlord therefor. Such increase shall be prorated as of the expiration
of the term, if applicable.
15. SUBROGATION:
Landlord and Tenant hereby waive all rights of subrogation which
their respective insurers might have under all policies of insurance now
existing or hereafter purchased during the term by either Landlord or
Tenant, insuring or covering the premises or any thereof, or Landlord's
leasehold improvements, furniture, fixtures, personal property, business
or operations in or about the premises. To effectuate the subrogation
set forth in section 15, Landlord and Tenant waive any
Landlord: /s/ Illegible Tenant: /s/ Illegible
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claims for loss or damage against the other to the extent such loss or
damage is covered by insurance maintained by the waiving party.
16. TAXES:
Tenant will pay before delinquency any and all taxes, assessments,
license fees and public charges levied, assessed or imposed or which
become payable during the term hereof upon Tenant's fixtures, furniture
and personal property installed in or located on the premises.
Tenant shall be considered the owner during the term of any
leasehold improvements installed at Tenant's expense, and any such
leasehold improvements shall be assessed to Tenant for property tax
purposes. Except as otherwise provided in Paragraph 11, Tenant shall not
remove from the premises any leasehold improvements installed by Tenant
without Landlord's prior written consent, and the ownership of any such
leasehold improvements shall revert to Landlord upon the expiration of
the term.
17. DESTRUCTION:
In the event of a partial destruction of the Building during the
term by fire or other cause, Landlord shall repair the same, provided
that in Landlord's reasonable estimation such repairs can be made within
ninety (90) days (SUBJECT TO DELAYS BEYOND LANDLORD'S CONTROL AND DELAYS
IN MAKING INSURANCE ADJUSTMENTS BY LANDLORD) and that full cost of such
repairs is insured under Landlord's fire and extended coverage
insurance; and in that event such partial destruction shall not annul or
void this Lease except that the Tenant shall be entitled to a
proportionate reduction of rent while such repairs are being made, such
proportionate reduction to be based upon the extent to which the making
of such repairs interferes with the business carried on by Tenant in the
Premises.
If such repairs cannot be made within the above ninety (90) days,
either Landlord or Tenant may terminate this Lease; or if the cost of
such repairs is not insured as set forth above, Landlord may elect to
terminate this Lease. In either event, such termination shall be
effected by giving notice to the other party within thirty (30) days
after the damage occurs. If the Lease is not so terminated, Landlord
shall make such repairs within a reasonable time with this Lease
continuing in full force and effect and the rent proportionately reduced
while repairs are being made.
In the event the Building is destroyed to the extent of not less
than one-third of the then current replacement cost thereof (excluding
foundation) Landlord may elect to terminate this Lease, regardless of
whether the Premises are damaged, whether the partial destruction is
caused by a casualty which is covered by insurance or whether the
repairs can be made within ninety (90) days. A total destruction of the
Building shall terminate this Lease. In respect to any partial
destruction which Landlord is obligated to repair or may elect to repair
under the terms of this paragraph and which can be made within ninety
(90) days, the provisions of Section 1932, Subdivision 2, and of Section
1933, Subdivision 4, of the Civil Code of the State of California are
waived by Tenant.
Notwithstanding anything to the contrary contained in this Article,
Landlord shall not have any obligation whatsoever to repair, reconstruct
or restore the Premises when the damage resulting from any casualty
covered under this Article occurs during the last twelve (12) months of
the term of this Lease or any extension thereof.
Landlord shall not be required to repair any injury or damage by
fire or other cause, or to make any repairs or replacements of any
panels, decoration, office fixtures, railings, floor covering,
partitions, or any other property installed in the Premises by Tenant.
Tenant shall not be entitled to any compensation or damages from
Landlord for loss of the use of the whole or any part of the Premises.
Tenant's personal property or any inconvenience or annoyance occasioned
by such damage, repair, reconstruction or restoration.
18. EMINENT DOMAIN:
If the whole or any substantial part of the building or appurtenant
real property shall be taken or condemned by any competent authority
for any public use or purpose, the term of this Lease shall end upon,
and not before, the date when the possession of the part so taken shall
be required for such use or purpose; provided, that at Landlord's option
this Lease shall not terminate if Tenant's Premises are not taken and if
Tenant's access to and use of its premises are not materially and
detrimentally affected by the taking. Current rent shall be apportioned
as of the date of such termination, but the entire award shall be the
property of Landlord without apportionment.
19. ASSIGNMENT AND SUBLETTING:
Tenant shall not assign this Lease, or any interest herein, and
shall not sublet the Premises or any part thereof, or any right or
privilege appurtenant thereto, or suffer any other person (THE AGENTS
AND EMPLOYEES OF TENANT EXCEPTED) to occupy or use the premises, or any
portion thereof, without the prior written consent of Landlord, and a
consent to one assignment, subletting, occupation or use by any other
person. Any assignment or subletting without such consent shall be void,
and shall, at the option of the Landlord, terminate this Lease. Any
transfer or assignment of this Lease by operation of law without the
written consent of Landlord shall make this Lease voidable at the option
of lessor.
Every assignment or sublease shall recite that it is and shall be
subject and subordinate to the provisions of this Lease, and the
termination of this Lease shall continue a termination of every such
assignment or sublease.
20. SUBORDINATION:
The rights of Tenant under this Lease shall be and they are subject
and subordinate at all times to the lien of any mortgage or mortgages,
deed of trust or deeds of trust, now or hereafter in force against the
property, and to all advances
Landlord: /s/ Illegible Tenant: /s/ Illegible
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made or hereafter to be made [illegible] the security thereof, the Tenant
shall execute [illegible] further instruments subordinating this Lease
to the lien or liens of such mortgage or mortgages, deed of trust or
deeds of trust, as shall be requested by Landlord. Tenant hereby
irrevocably appoints Landlord as attorney in fact for Tenant with full
power and authority to execute and deliver in the name of Tenant any such
instrument or instruments.
If any mortgage or beneficiary elects to have this Lease superior to
its mortgage or deed of trust and give notice of such fact to Tenant, then
this Lease shall be deemed superior to the lien of any such mortgage or
deed of trust, whether this Lease or a memorandum thereof is dated or
recorded before or after said mortgage or deed of trust.
21. SIGNS:
Tenant shall not place any signs, lettering, marks, photographs or
any other material whatsoever on the interior or exterior of the doors,
windows, hallways or any other place in, on or about the Premises, the
Building or its appurtenances, without Landlord's prior written approval
of the size, style, design, color, material, manner of applying or
fastening, and location thereof, and the person or firm who shall
install or apply the same.
The prior written consent of the SDUPD and Landlord for changes to
improvements and the design location of any signs is required in each
instance.
Tenant is responsible for paying for allowable signage. A directory
sign located adjacent to Suite 100 and an individual Suite sign and
adjacent of the entry of the suite will be constructed by Landlord
designated sign maker conforming the SDUPD approved signage. Tenant may
need to submit separate sign application for Port approval.
22. DEFAULT:
If Tenant fails to make any payment of any sum due under this Lease
for ten (10) days after notice from Landlord, or fails to perform any
other term, covenant or condition hereof for twenty (20) days after
notice from Landlord, or if Tenant's interest herein, or any part
thereof, is assigned or transferred, either voluntarily or by operation
of law (EXCEPT AS EXPRESSLY PERMITTED BY OTHER PROVISIONS OF THIS
LEASE), including, without limitation, the filing of a petition by
or against Tenant, or any member of Tenant if Tenant is a partnership or
joint venture, under any insolvency or bankruptcy laws, or if Tenant
makes a general or any assignment for the benefit of his creditors,
then, in any such events, Landlord shall have the right, at its option,
in addition to and not exclusive of any other remedy Landlord may have by
operation of law, without any further demand or notice to re-enter the
premises and eject all persons therefrom, using all necessary force to do
so, and either:
(1) Declare this Lease at an end, in which event Tenant shall
immediately pay to Landlord a sum of money equal to the amount, if any,
by which the then cash value of the rent reserved hereunder, for the
balance of the term of this Lease exceeds the then cash reasonable rental
value of the premises for the balance of the term; or
(2) Without terminating this Lease, relet the premises, or any part
thereof, as the agent and for the account of Tenant upon such terms and
conditions as Landlord may deem advisable, in which event the rents
received on such reletting shall be applied first to the expense of such
reletting and collection, including necessary renovation and alterations
of the premises, reasonable attorneys' fees, any real estate commissions
paid, and thereafter toward payment of all sums due or to become due
hereunder, and if a sufficient sum is not thus realized to pay such sums
and other charges, Tenant shall pay Landlord any deficiency monthly,
notwithstanding Landlord may have received rent in excess of the rent
stipulated in this Lease in previous or subsequent months, and Landlord
may bring an action therefor as such monthly deficiency shall arise.
Any such re-entry shall be allowed by Tenant without let or
hindrance, and Landlord shall not be liable in damages for any such
re-entry, or guilty of trespass or forcible entry.
No re-entry and taking of possession of the premises by Landlord
shall be construed as an election on Landlord's part to terminate this
Lease regardless of the extent of renovations and alteration by Landlord,
unless a written notice of such intention is given to Tenant by
Landlord. Notwithstanding any reletting without termination. Landlord
may at any time thereafter terminate this Lease for such previous breach.
23. SURRENDER:
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 sublease or
sub tenancies, or may, at the option of Landlord, operate as an assignment
to Landlord of any or all such subleases of sub tenancies.
24. REMOVAL OF PROPERTY:
Tenant hereby irrevocably appoints Landlord as agent and attorney in
fact of Tenant, to enter upon the premises, in the event of default by
Tenant in the payment of any rent herein reserved, or in the performance
of any term, covenant or condition herein contained to be kept or
performed by Tenant, and to remove any and all furniture and personal
property whatsoever situated upon the premises, and to place such
property in storage for the account of and at the expense of Tenant. In
the event that Tenant shall not pay the cost of storing any such
property after the property has been stored for a period of ninety (90)
days or more, Landlord may sell any or all of such property, at public
or private sale, in such manner and at such times and places as Landlord
in its sole discretion may deem proper, without notice to Tenant or any
demand upon Tenant for the payment of any part of such charges or the
removal of any such property, and shall apply the proceeds of such sale
first to the cost and expenses of such sale, including reasonable
attorney's fees actually incurred: second, to the payment of the costs
of or charges for storing any such property; third, to the payment of
any other sums of money which may then or thereafter be due to Landlord
from Tenant under any of the terms hereof; and fourth, the balance, if
any, to Tenant.
Landlord: [Illegible] Tenant: [Illegible]
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25. CONVEYANCE OF PROPERTY:
If Landlord sells or otherwise disposes of the Building, or the
Building is sold on foreclosure, Tenant agrees if so requested, to enter
into an attornment agreement, discharging Landlord from all obligations
under this Lease and agreeing to accept the purchaser or other successor
to Landlord's interest as Landlord under this Lease. The provisions of
Section 1951 of California Civil Code shall govern the disposition of
the security deposit; and upon complying with that statute or any
successor or replacement of it, Landlord shall be discharged from any
further liability with respect to the security deposit.
26. WAIVER:
The waiver by Landlord or Tenant 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 lessee of any term, covenant or
condition of this Lease other than the failure of Tenant to pay the
particular rent so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such rent.
27. HOLDING OVER:
Any holding over after the expiration of the said term, with or
without the express consent of Landlord, shall be construed as a tenancy
from month to month, and shall be on the terms and conditions herein
specified, so far as applicable. Such holding over shall not constitute
an extension of this Lease. During such holding over, Tenant shall
provide Landlord with written notice at least one month in advance of
the date of termination of such monthly tenancy of his intention to
terminate such tenancy.
28. ATTORNEYS' FEES:
If any action at law or inequity shall be brought to recover any
rent under this Lease, or for or on account of any breach of or to
enforce any of the terms, covenants, agreements or conditions of this
Lease, or for the recovery of the possession of the premises, the
prevailing party shall be entitled to recover from the other party as a
part of the prevailing party's costs a reasonable attorneys fee, the
amount of which shall be fixed by the court and shall be made a part of
any judgment rendered.
29. NOTICES:
All notices to be given to Tenant may be given in writing
personally or by depositing the same in the United States mail, postage
prepaid, and addressed to Tenant at the premises, whether or not Tenant
has departed from, abandoned or vacated the premises. Notice to Landlord
may be given in writing personally or by depositing the same in the
United States mail, postage prepaid, and addressed to Landlord at the
address to which the rent is paid.
30. GENERAL PROVISIONS:
30.1 This Lease contains all terms, covenants and conditions
agreed to by Landlord and Tenant, and it may not be modified orally or
in any manner other than by an agreement in writing signed by all the
parties to this Lease or their respective successor in interest.
Each term and each provision of this Lease performed by Tenant
shall be construed to be both a covenant and a condition.
The covenants and conditions hereof, subject to the provisions as
to subletting and assignment, shall apply to and bind the heirs,
successors, executors, administrators, Sublessee's and assigns of the
parties.
All persons who have signed this Lease shall be jointly and
severally liable hereunder.
When the context of the Lease requires, the masculine gender
includes the feminine, a corporation or a partnership, and the singular
number includes the plural.
The captions of this Lease are for convenience only and are not a
part of this Lease and do not in any way limit or amplify the terms and
provisions of this Lease.
This Lease shall be governed by and construed in accordance with
the laws of the State of California.
Time is of the essence as to all of the provisions of this Lease.
30.2 LATE CHARGES. Tenant hereby acknowledges that late payment
by Tenant to Landlord of rent or other sums due hereunder will cause
Landlord to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult to ascertain. Such costs include,
but are not limited to, processing and accounting charges, and late
charges which may be imposed upon Landlord by terms of any mortgage or
trust deed covering the Premises. Accordingly, if any installment of
rent or a sum due from Tenant shall not be received by Landlord or
Landlord's designee with five (5) days after said amount is due, the
Tenant shall pay to Landlord a late charge equal to ten percent (10%) of
such overdue Amount. The parties hereby agree that such late charges
represent a fair and reasonable estimate of the cost that Landlord will
incur by reason of the late payment by Tenant. Acceptance of such late
charges by the Landlord shall in no event constitute a waiver of
Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of the other rights and remedies granted
hereunder.
30.3 RULES AND REGULATIONS. Tenant shall faithfully observe and
comply with the rules and regulations that Landlord shall from time to
time promulgate. Landlord reserves the right from time to time to make
all reasonable
Landlord: [Illegible] Tenant: [Illegible]
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modifications to said rules. The additions and modifications to those
rules shall be binding upon Tenant upon delivery of a copy of them to
Tenant. Landlord shall not be responsible for the nonperformance of any
said rules by any other Tenants or occupants.
31. SCHEDULES
31.1 Landlord, at its own expense, will perform the following work
and supply the following materials (SEE ATTACHMENT IF APPLICABLE)
31.2 Tenant, at its own expense, will perform the following and
supply the following materials (SEE ATTACHMENT IF APPLICABLE)
31.3 Tenant's Insurance (if greater than amounts set forth in
Paragraph 14 (SEE ATTACHMENT IF APPLICABLE)
32. OTHER TERMS AND CONDITIONS:
Cost of Living Index: For the purpose of this Lease, the term
"Index" means the Consumer Price Index as published by the United
States Department of Labor "All Urban Consumers -- All Items" series for
the San Diego Statistical Area (base 1982 - 100) or such successor
index(es) as shall be designated by the United States Department of Labor
and selected by Landlord: "Base Index" means an Index for the
penultimate month preceding the month as of which the rent is to be
increased as hereinafter provided. Landlord has the option of adjusting
the base rent on intervals of twelve (12) calendar months during the
lease term to a current rate which is the product obtained by
multiplying the Base Rent by the adjustment factor hereinafter set
forth. The adjustment factor shall adjust the Base Rent by the inflation
measured by the Index and is defined as the quotient obtained by
dividing the Base Index into the Current Index. In no event shall the
adjustment entitle Tenant to received the benefit of a reduction of the
Current Index below the level of the Base Index. Should the Bureau
discontinue the publication of the above Index, or publish same less
frequently, or alter same in some manner, then Landlord shall adopt a
substitute index or substitute procedure which reasonably reflects and
monitors consumer prices.
The rules and regulations contained in this Lease, as well as such
reasonable rules and regulations, including parking regulations, as may
be hereafter adopted by Landlord for the safety, care and cleanliness of
the premises and the preservation of good order thereon, are hereby
expressly made a part hereof, and Tenant agrees to obey all such rules
and regulations.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT.
LANDLORD/LESSEE: TENANT/SUBLESSEE:
SHELTER COVE XXXXXX XXXXXXX & ASSOCIATES
XXXXX XXXXXXX OR XXXX XXXXXXX
BY: /s/ [Illegible] BY: /s/ Xxxx Xxxxxxx
------------------------ -------------------------------
TITLE: General Manager TITLE: CFO/Manager
---------------------- ----------------------------
DATE: 12/23/98 DATE: 12/23/98
---------------------- -----------------------------
------------------------------------
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PERSONAL GUARANTEE
The undersigned, hereby guarantees the performance of the terms and
conditions of this Lease on behalf of the Tenant, as additional
consideration for the making and execution of this Lease, and by
execution of this Personal Guarantee, acknowledges, understands and
assumes full responsibility for all obligations of the Tenant including,
but not limited to those obligations calling for the payment of money.
Date: 12/23/98
Xxxxx Xxxxxxx
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Social Security ####-##-####
Landlord: [Illegible] Tenant: [Illegible]
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