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EXHIBIT 10.22
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is entered into as of the date set forth in
Article 1 by and between Landlord and Tenant.
ARTICLE 1
BASIC LEASE PROVISIONS
1.1 EFFECTIVE DATE: November 27, 1995
1.2 LANDLORD: Xxxxx De La Xxxxxx Xxxxxxxxx Revocable Trust No. 1
1.3 TENANT: Xxxxxx Xxxxxxx Group, Inc.
1.4 BUILDING: That certain four story building and the underlying realty located at 0000
Xxxxxxxxx Xxxxx, Xxx Xxxxx, XX, in the approximate 9,504 sq.ft. (Article 3)
1.5 PREMISES: Entire 2nd Floor with the exception of Suite 2900
1.6 COMMENCEMENT DATE: January 1, 1996
1.7 RENT: Nine Thousand Five Hundred Four Dollars and 00/100ths ($9,504.00) or $1.00 per
square foot.
[Less utilities paid to SOG&E]
1.8 TERM: [(36) Thirty-Six Months]
1.9 USE OF PREMISES: General office
1.10 PARKING: [6 Assigned spaces lower level]
[24 unassigned spaced upper level]
1.11 SECURITY DEPOSIT: Two Thousand Five Hundred Fifty Six Dollars and 00/100ths ($2,556.00) Landlord
acknowledges said deposit has been deposited already.
1.12 ADJUSTMENT TO
MINIMUM RENT: [See Section 19.18]
1.13 PRO RATA SHARE: N/A
1.14 BROKER(S): N/A
1.15 GUARANTOR: N/A
1.16 ADDRESSES FOR
NOTICES AND PAYMENTS:
LANDLORD TENANT
-------- ------
Notice to: The Premises:
Xxxxx De La Fuente Alexander Xx. Xxxxxx Xxxxxxxx
Revocable Trust No. 1 Xxxxxx Xxxxxxx Group, Inc.
0000 Xxxxxxxxx Xxxxx - Xxxxx 0000 0000 Xxxxxxxxx Xx., Xxx. 0000
Xxx Xxxxx, XX 00000 Xxx Xxxxx, XX 00000
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This Article 1 is intended to supplement and/or summarize the
provisions set forth in the balance of this Lease. If there is any conflict
between any provisions contained in this Article 1 and the balance of this
Lease, the balance of this Lease shall control.
ARTICLE 2
EXHIBITS
The following Exhibits are attached to this Lease and, by this
reference, made a part of this Lease:
Exhibit "A"
ARTICLE 3
PREMISES
3.1 PREMISES. Landlord leases to Tenant and Tenant leases from
Landlord for the term, at the rental and upon the covenants and conditions set
forth in this Lease, the Premises described in Section 1.5, and more
particularly identified in Exhibit "A" attached hereto and fully incorporated
herein by this reference.
3.2 RESERVATION. Landlord reserves the right to use the
exterior walls, floor, roof and plenum in, above and below the Premises for the
installation, maintenance, use and replacement of pipes, ducts, conduits,
wires, alarm lines, heating, ventilating and air-conditioning lines, fire
protection lines and systems, electric power, telephone and communication lines
and systems, sanitary sewer lines and systems, gas lines and systems, water
lines and systems, and structural elements serving the Building and for such
other purposes as Landlord deems necessary.
ARTICLE 4
TERM
4.1 COMMENCEMENT DATE. This Lease shall be effective as of the
Effective Date specified in Section 1.1 and shall continue thereafter during
the Lease Term as specified in Section 1.8 unless sooner terminated as provided
herein. The Lease Term shall be computed from the Commencement Date specified
in Section 1.6.
ARTICLE 5
ALTERNATIVE COMMENCEMENT DATE
5.1 DELIVERY OF POSSESSION. If Landlord tenders the Premises to
Tenant prior to the Commencement Date, and Tenant elects to accept such tender,
then the date on which the Tenant takes possession or commences use of the
Premises shall be the Commencement Date, and Tenant shall there upon be subject
to all of the provisions of this Lease, including the payment of Minimum Annual
Rental and Additional Rental (as defined in Section 6.4). If Landlord is unable
to deliver possession of the Premises to Tenant on or before the Commencement
Date as a result of any act of omission of the Tenant, the Commencement Date
shall be the Commencement Date and Tenant shall thereupon be subject to all of
the provisions of this Lease, including the payment of Minimum Annual Rental
and Additional Rental. If for any other reason Landlord is unable to deliver
possession of the Premises to Tenant on or before the Commencement Date, this
Lease shall not be void or voidable, and Landlord shall not be subject to any
liability to Tenant for any loss of damage resulting therefrom. However, in
such event Tenant
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shall not be liable for any Minimum Annual Rental or Additional Rental until
such time as Landlord tenders the Premises to Tenant.
5.2 ACCEPTANCE OF PREMISES. Tenant's taking possession of the
Premises shall constitute Tenant's acknowledgement that the Premises are in
good working order and condition.
ARTICLE 6
RENTAL
6.1 MINIMUM ANNUAL RENTAL. Tenant agrees to pay as rental for
the use and occupancy of the Premises the Minimum Annual Rental specified in
Section 1.7, in the monthly installments so specified, in advance, on or before
the first day of each month, without prior demand, offset or deduction,
commencing on the Commencement Date. Should the Commencement Date be on a day
other than the first day of a calendar month, then the monthly installment of
Minimum Annual Rental for the first fractional month shall be equal to
one-thirtieth (1/30th) of monthly installment of Minimum Annual Rental for each
day from the Commencement Date to the end of the partial month
6.2 Deleted
6.3 PLACE OF PAYMENT. Tenant shall pay Minimum Annual Rental
and Additional Rental, as hereinafter defined, to Landlord at the addressed
specified in Section 1.14 or to such other address as Landlord may from time to
time designate in writing to Tenant.
6.4 ADDITIONAL RENT. Unless otherwise provided herein, all
monetary obligations owing by Tenant to Landlord under this Lease and Exhibits
hereto shall be designated as "Additional Rental". All Additional Rental shall
be payable on or before the first day of the first month during the Term hereof
following the date of occurrence of the event giving rise to the monetary
obligation, without prior demand, offset or deduction.
6.5 INTEREST ON PAST DUE OBLIGATIONS. Specifically provided in
this Lease, any amount due from the Tenant to Landlord under this Lease which
is not paid when due and any amount due as a reimbursement to Landlord for
costs incurred by Landlord in performing obligations of Tenant upon Tenants
failure to so perform shall bear interest at the rate of ten percent (10%) per
annum from the date originally due until paid.
6.6 LATE CHARGES. Tenant hereby acknowledge that the late
payment by Tenant to Landlord of Base Rent and Additional Rent will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of
which will be extremely difficult to ascertain. Therefore, if any installment
of Base Rent or Additional Rent due from Tenant shall not be received by
Landlord within ten (10) days after such amount shall be due, then, without any
requirement of notice to Tenant, Tenant shall pay to Landlord a late charge
equal to six percent (6%) of such overdue amount. The parties hereto agree
that such late charge represents a fair and reasonable estimate of the cost
Landlord will incur by reason of such late payment by Tenant. Acceptance of
such late charge by Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount nor preclude Landlord from
exercising any of the rights and remedies hereunder.
ARTICLE 7
SECURITY DEPOSIT
7.1 SECURITY DEPOSIT. Upon execution of this Lease, Tenant
shall deposit with Landlord the sum specified in Section 1.11 as a
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security deposit (the "Security Deposit"). The Security Deposit shall be held
by Landlord without obligation or liability for payment of interest thereon as
security for the faithful performance by Tenant of all of the terms of this
Lease to be observed and performed by Tenant. The Security Deposit shall not
be mortgaged, assigned, transferred or encumbered by Tenant without the prior
written consent of Landlord. Landlord shall not be required to keep the
Security Deposit separated from its general funds. In order to protect the
interests of Landlord hereunder, within five (5) days after demand by Landlord,
Tenant shall deposit with Landlord a cash amount sufficient to ensure that the
balance of the Security Deposit is not less than the equivalent of one (1)
monthly installment of Minimum Annual Rental, as adjusted from time to time.
7.2 APPLICATION OF SECURITY DEPOSIT. Should Tenant at any time
during the Term hereof be in default under any provision of this Lease,
Landlord may, as its option and without prejudice to any other remedy which
Landlord may have at law or in equity, appropriate the Security Deposit, or the
portion thereof as may be deemed necessary, and apply same toward payment of
Minimum Annual Rental, Additional Rental, or to loss or damage sustained by
Landlord due to the default on the part of the Tenant. Within five (5) days
after written demand by Landlord, Tenant shall deposit cash with Landlord in an
amount sufficient to restore the Security Deposit to the original sum
deposited, as adjusted under Section 7.1.
7.3 REFUND. Should Tenant perform all of its obligations under
this Lease, the Security Deposit, or any balance thereof then remaining, shall
be returned to Tenant, within sixty (60) days of the expiration of the Term of
the earlier termination thereof, or as otherwise prescribed by law.
ARTICLE 8
UTILITIES
8.1 UTILITY SERVICES AND CHARGES. Tenant agrees to make all
arrangements for and pay directly to the appropriate utility company all
charges for utility services supplied to Tenant for Tenant's use in or about
the Premises including, but not limited to, gas, electricity, water, telephone,
trash collection, and for all connection charges, fees or taxes. In the event
it is not possible for Tenant to pay directly for any utility or utilities,
those utility costs shall be obtained in the name of Landlord and charged to
Tenant as a Common Area expense pursuant to Article 6 above.
8.2 WAIVER OF LIABILITY. The failure or interruption of any
utility or service shall neither render Landlord liable in damages or otherwise
not entitled Tenant to terminate this Lease or discontinue making payments of
Base Rent or Additional Rental.
8.3 TENANT'S NONPAYMENT. If Tenant fails to pay any charges
referred to in this Article 8 when due as provided for in this Article 8,
Landlord may pay the charge, and Tenant agrees to reimburse Landlord as
Additional Rental for any amount paid by Landlord plus interest thereon at the
rate specified in Section 6.5 hereof.
ARTICLE 9
INSURANCE
9.1 TENANT'S INSURANCE. Tenant, at its sole cost and expense,
commencing on the earlier of (i) the Commencement Date, or (ii) the date Tenant
is given earlier access to the Premises, and
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continuing during the Term, shall procure, pay for and keep in full force and
effect the following types of insurance, in at least the amounts and in the
form specified below:
(a) Comprehensive liability insurance with coverage
limits of not less than One Million Dollars ($1,000,000) including combined
single limit bodily injury, personal injury, death and property damage
liability per occurrence, or current limit carried by Tenant, whichever is
greater, insuring against any and all liability of the insured with respect to
the Premises or arising out of the maintenance, use of occupancy of the
Premises or related to the exercise of any rights of Tenant pursuant to this
Lease, subject to increases in amount as Landlord may reasonably require from
time to time. All such comprehensive liability insurance shall specifically
insure the performance by Tenant of the indemnity agreement set forth in
Section 9.5 below as to liability for injury to or death of persons and injury
or damage to property.
(b) Standard form property insurance covering all
alterations, improvements, additions or utility installations permitted under
Article 11, and all of Tenant's trade fixtures, inventory, supplies, records
and personal property from time to time in, on or about the Premises, in an
amount not less than the full replacement value thereof, providing protection
against any peril included within the classification Fire and Extended
Coverage, sprinkler damage, vandalism, malicious "all risk" standard insurance
policy. Any policy proceeds shall be used for the repair of replacement of the
property damage or destroyed unless this Lease shall cease and terminate under
the provisions of Article 13.
(c) Worker's compensation and employer's liability
insurance (as required by state law).
(d) Any other form or forms of insurance as Landlord or
Tenant or any mortgages or beneficiaries of Landlord or Master Landlord may
reasonably require from time to time, in such form and amounts and for
insurance risks against which a prudent tenant would protect itself.
9.2 POLICY FORM. All policies of insurance provided for herein
shall be issued by insurance companies with a financial rating acceptable to
Landlord and which are qualified to do business in the State of California. All
such policies shall Landlord, Tenant, and Landlord's mortgage(s) or
beneficiary(ies) as additional named insured and shall be for the mutual and
joint benefit and protection of Landlord, Tenant and Landlord's Mortgagee(s) or
beneficiary(ies). Executed copies of the policies mortgagee(s) of insurance or
certificates thereof shall be delivered to Landlord prior to Tenant, its agents
or employers, entering the Premises for any purpose. Thereafter, executed
copies of renewal policies or certificates thereof shall be delivered to
Landlord within thirty (30) days prior to the expiration of the term of each
policy. All policies of insurance delivered to Landlord must contain a
provision that the company writing the policy will give to Landlord and any
mortgagee(s) or beneficiary(ies) of Landlord thirty (30) days' notice in
writing in advance of any cancellation or lapse or the effective date of any
reduction in the amounts of insurance. All public liability, property damage
and other casualty policies shall be written as primary policies and any
insurance carried by Landlord shall not be contributing with such policies.
Tenant's failure to provide and keep in force the aforementioned insurance
shall be regarded as a material default hereunder, entitling Landlord to
exercise any or all of the remedies as provided in this Lease in the event of
Tenant's default. In the alternative, Landlord may secure the appropriate
insurance policies and Tenant shall pay upon demand the cost of same to
Landlord, plus interest thereon at the maximum legal rate allowed under
applicable law, as Additional Rental.
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9.3 BLANKET POLICES. Notwithstanding anything to the contrary
contained in this Article 9, Tenant's obligations to carry insurance may be
satisfied by coverage under a so-called blanket policy of insurance; provided,
however, Landlord and Landlord's mortgagee(s) or beneficiary(ies) shall be
named as additional insured as their interests may appear, the coverage
afforded will not be reduced or diminished, and the requirements set forth in
this Lease are otherwise satisfied.
9.4 INCREASED PREMIUMS DUE TO USE OF PREMISES. Tenant shall not
do any act in or about the Premises which may result in an increase in the
insurance rates upon the Building of which the Premises are apart. Tenant
agrees to pay to Landlord upon demand the amount of any increase in premiums
for insurance resulting from Tenant's use of the premises, whether or not
Landlord shall have consented to the act on the part of Tenant.
9.5 INDEMNITY. To the fullest extent permitted by law, Tenant
covenants with Landlord that Landlord shall not be liable for any damage or
liability of any kind or for any injury to or death of persons, or damage to
property of Tenant or any other person (including a claim for rental value or
business interruption directly related to any such personal or property damage)
occurring from and after the Commencement Date (or such earlier date if Tenant
is given earlier access to the Premises), from any cause whatsoever, related to
the use, occupancy or enjoyment of the Premises by Tenant and Tenant's
employees, contractors or guests, or any person thereon or holding under
Tenant, and Tenant shall defend, indemnify and hold Landlord harmless from all
liability whatsoever on account of any real or alleged damage or injury and
from liens, claims and demands related to the use of the Premises and its
facilities, or any repairs, alterations or improvements which Tenant may make
or cause to be made upon the Premises; but Tenant shall not be liable for
damage or injury ultimately determined to be occasioned by the negligence of
Landlord or its designated agents, servants or employees. This obligation to
indemnify, defend and hold harmless shall include reasonable attorneys' fees
and investigation costs and all other reasonable costs, expenses and
liabilities incurred by Landlord or its counsel from the first notice that any
claim or demand is to be made or may be made.
9.6 WAIVER OF SUBROGATION. Landlord and Tenant each waive any
rights it may have against the other on account of any loss or damage
occasioned to Landlord or Tenant, as the case may be, their respective
property, the Premises or its contents, or to other portions of the Building,
arising from any risk covered by property insurance required to be carried by
them pursuant to this Lease; and each of the parties, on behalf of their
respective insurance companies insuring the property of either Landlord or
Tenant against any such loss, waives any right of subrogation that it may have
against the other. The waiver of subrogation referred to herein shall extend to
the agents of each party and its employees and, in the case of Tenant, shall
also extend to all other persons and entities occupying or using the Premises
in accordance with the terms of this Lease.
ARTICLE 10
TENANT'S CONDUCT OF BUSINESS
10.1 PERMITTED USE. Tenant shall use the Premises solely for the
use specified in Section 1.9. Tenant shall comply with all the laws concerning
the Premises or Tenant's use of the Premises. Tenant shall not use the Premises
in any manner that will constitute waste, nuisance or unreasonable annoyance.
10.2 COVENANT TO OPERATE. From and after the Commencement Date,
Tenant shall: (a) secure and maintain a business license and
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all other applicable governmental approvals relating to the conduct of Tenant's
business; and (b) operate continuously and uninterruptedly in the entire
Premises the business which it is permitted to operate under the provisions of
this Lease.
10.3 ADVERTISING MEDIA. Tenant shall not affix upon the Premises
or the Building any sign without Landlord's consent, [which consent shall not
be unreasonably withheld] advertising placard, name, insignia, trademark,
descriptive material or other like item. No advertising medium shall be
utilized by Tenant which can be heard or seen outside the Premises, including
without limitation, flashing lights, searchlights, loudspeakers, phonographs,
radios or televisions.
ARTICLE 11
MAINTENANCE, REPAIRS AND ALTERATIONS
11.1 LANDLORD'S RIGHT OF ENTRY. Landlord, its agents,
contractors, servants and employees, may enter the Premises at all reasonable
times (a) to examine the Premises; (b) to perform any obligation of, or
exercise any right or remedy of, Landlord under this Lease; (c) to make
repairs, alterations, improvements or additions to the Premises or to other
portions of the Building as Landlord deems necessary or desirable; (d) to
perform work necessary to comply with laws, ordinances, rules or regulations of
any public authority or of any insurance underwriter; (e) to serve, post or
keep posted any notices required or allowed under the provisions of this Lease,
including, but not limited to, notices of nonresponsibility for alterations,
improvements, additions as utility installations pursuant to Section 11.4; and
(f) to perform work that Landlord deems necessary to prevent waste, or
deterioration in connection with the Premises should Tenant fail to commence to
make, and diligently pursue to completion, its required repairs within three
(3) days after written demand by Landlord. If Landlord makes any repairs
required to be made by Tenant, Tenant shall pay the cost of the repair to
Landlord, plus interest thereon at the maximum legal rate under applicable law,
as Additional Rental, promptly upon receipt of a xxxx from Landlord for the
same.
Tenant shall not be entitled to an abatement or reduction of
Minimum Monthly Rental or Additional Rental if Landlord exercises any rights
reserved in this Section 11.2. Landlord shall conduct its activities on the
premises hereunder in a manner that will minimize any inconvenience, annoyance
or disturbance to Tenant. Landlord shall not be liable in any manner for any
inconvenience, disturbance, loss of business, nuisance, or other damage arising
out of Landlords's entry on the Premises as provided in this section, except
damages resulting from the negligent acts or omissions of Landlord, or its
authorized representatives.
11.2 TENANT'S MAINTENANCE OBLIGATIONS. Tenant, at its sole cost
and expense, shall keep the Premises and every part thereof (except that
portion of the Premises to be maintained by Landlord hereunder) including,
without limitation, all fixtures, decorations, glass, walls, partitions,
shelves, closets, cabinets, signs, locks, doors, door frames, door checks,
windows, window frames, wall coverings and floor coverings in a first class
order, condition and repair and shall make replacements necessary to keep the
Premises in this condition. All replacements shall be of a quality equal to or
exceeding, that of the original. Should Tenant fail to make these repairs and
replacements or otherwise maintain the Premises in accordance with the
provisions of this Section 11.3 within three (3) days after written demand by
Landlord, or shall Tenant commence but fail to complete any repairs or
replacements within a reasonable time after written demand by Landlord.
Landlord may make the repairs or replacements without liability to Tenant for
any loss or damage that may accrue, and Tenant shall pay
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Landlord the costs incurred by Landlord in the making of any repairs or
replacements together with interest at the maximum lawful rate as Additional
Rental from the date of completion of the work. Tenant shall repair promptly at
its expense any damage to the Building caused by Tenant or its agents or
employees or caused by the installation or removal of Tenant's personal
property.
11.3 ALTERATIONS. Tenant shall not, without Landlord's prior
written consent, which consent shall not be unreasonably withheld, make any
alterations, improvements, additions or utility installations in, on or about
the Premises or the Building without Landlord's prior written consent, which
may be denied in the sole and absolute discretion of Landlord. As used in this
Section 11.4, the term "utility installation" shall mean power panels,
electrical distribution, systems, lighting fixtures, space heaters,
air-conditioning, computer lines, plumbing and fences. Landlord may require
that Tenant remove any or all of such alterations, improvements, additions or
utility installations at the expiration of the Terms of this Lease, and restore
the Premises or the Building to their prior condition. Should Tenant make any
alterations, improvements, additions or utility installments without the prior
approval of Landlord, Landlord may require that Tenant remove any or all of the
same upon written demand and restore the Premises or the Building to their
prior condition.
Any alterations, improvements, additions or utility
installments in, or about the Premises or the Building that Tenant shall desire
to make and which require the consent of the Landlord shall be presented to
Landlord in written form, with proposed detailed plans. Landlord may, as a
condition of its consent, require Tenant to make revisions in and to the plans
and to post a bond or other reasonably satisfactory to Landlord to insure the
completion of such change. If Landlord shall give its consent, the consent
shall be deemed conditioned upon Tenant, at Tenant's expense, acquiring a
permit to do so from appropriate governmental agencies, the furnishing of a
copy thereof to Landlord prior to the commencement of the work and the
compliance by Landlord of all conditions of such permit in a prompt and
expeditious manner. Landlord reserves the right to require its space planners,
architects, engineers and contractors to perform all or a portion of the
proposed alterations, improvements, additions and utility installations to the
Premises, or the Building, at Tenant's sole cost and expense.
Tenant shall pay, all claims for labor or materials
furnished or alleged to have been furnished to or for Tenant at or for use in
the Premises, or the Building, which claims are or may be secured by any
mechanic's lien against the Premises or the Building or any interest therein.
Tenant shall give Landlord nor less than ten (10) days' notice prior to the
commencement of any work, and Landlord shall have the right to post notices of
nonresponsibility as provided by law. If Tenant shall, in good faith, contest
the validity of any such lien, claim or demand, then Tenant shall, at its sole
expense, defend itself, Landlord, the Premises and the Building, upon the
condition that if Landlord shall require, Tenant shall furnish to Landlord a
surety bond satisfactory to Landlord in an amount equal to such contested lien
claim or demand indemnifying Landlord and Tenant against liability for the same
and holding the Premises and the Building free from the effect of such lien or
claim. In addition, Landlord may require Tenant to pay Landlord's attorney's
fees and costs in participating in such action if Landlord shall decide it is
to its best interest to do so.
Unless Landlord requires the removal as set forth in this
Section 11.4, all alterations, improvements, additions, and utility
installations shall become the property of Landlord and remain upon and be
surrendered with the Premises at the expiration of the Term. Notwithstanding
the provisions of this Section 11.4, Tenant's machinery and equipment, other
than that which is affixed
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to the Premises so that it cannot be removed without material damage to the
Premises, shall remain the property of Tenant and may be removed by Tenant
subject to the provisions of this Section 11.4.
ARTICLE 12
ASSIGNMENT AND SUBLETTING
12.1 ASSIGNMENT. Tenant shall not, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld, assign
or encumber this Lease or any of its rights or estates hereunder or any other
interest herein or sublet the Premises or any part thereof, or permit the use
or occupation of the Premises by any party other than Tenant. If Tenant is a
partnership, a withdrawal or change, voluntary or involuntary, of any partner
owning fifty percent (50%) or more of the partnership, or the dissolution of
the partnership, shall be deemed a voluntary assignment. If Tenant is a
corporation, any dissolution, merger, consolidation, or other reorganization of
Tenant, or the sale or transfer of fifty-one percent (51%) of the total
combined voting power of all classes of stock, shall be deemed a voluntary
assignment. Any of the foregoing acts without Landlord's consent shall be void
and shall, at the option of Landlord, constitute a default under this Lease.
This Lease shall not, nor shall any interest of Tenant herein, be assignable by
operation of law without the prior written consent of Landlord, which consent
may not be unreasonably withheld.
12.2 PROCEDURE. If at any time or from time to time during the
Term, Tenant desires to assign this Lease or sublet all or any part of the
Premises, Tenant shall give notice to Landlord setting forth the terms and
provisions of the proposed assignment or sublease, and the identity of the
proposed assignee or subtenant. Tenant shall promptly supply Landlord with such
information concerning the business background and financial condition of such
proposed assignee or subtenant as Landlord may reasonably request. Landlord
shall have the option, exercisable by notice given to Tenant within ten (10)
days after Tenant's notice is given, either to sublet such space from Tenant at
the rental and on the other terms set forth in this Lease for the term set
forth in Tenant's notice, or, in the case of an assignment, to terminate this
Lease. If Landlord does not exercise such option, and provided that Tenant is
not in default of any of Tenant's obligations under this Lease after notice and
any applicable grace period has expired, Tenant may assign the Lease or sublet
such space to such proposed assignees or subtenant on the following further
conditions:
(a) Landlord shall have the right to approve such
proposed assignee or subtenant, which approval shall not unreasonably withheld;
(b) The assignment or sublease shall be on the same
terms set forth in the notice given to Landlord;
(c) No assignment or sublease shall be valid and no
assignee or sublessee shall take possession of the Premises until an executed
counterpart of such assignment or sublease has been delivered to Landlord;
(d) No assignee or sublessee shall have a further right
to assign or sublet except on the terms herein contained; and
(e) Any sums or economic consideration received by
Tenant as a result of such assignment or subletting, however denominated under
the assignment or sublease, which exceed, in the aggregate, (i) the total sums
which Tenant is obligated to pay Landlord under this Lease (prorated to reflect
obligations allocable to any portion of the Premises subleased), plus (ii) any
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real estate brokerage commissions or fees payable in connection with such
assignment or subletting, shall be paid to Landlord as Additional Rental under
this Lease without affecting or reducing any other obligations of Tenant
hereunder. The sums payable under this subdivision (e) of Section 12.2 shall
be paid to Landlord as and when payable by subtenant to the Tenant.
(f) Tenant shall reimburse Landlord on demand for any
reasonable costs that may be incurred by Landlord in connection with said
assignment or sublease, including the costs of making investigations as to the
acceptability of the proposed assignee or subtenant and legal costs incurred in
connection with the granting of any requested consent. In no event, however,
shall such costs exceed $500 in each instance.
12.3 PERMISSIBLE TRANSFERS. Notwithstanding the provisions of
Sections 12.1 and 12.2 above, Tenant may assign this Lease or sublet the
Premises or any portion thereof, without Landlord's consent and without
extending any recapture or termination option to Landlord to any corporation
which controls, is controlled by or is under common control with Tenant, or to
any corporation resulting from a merger or consolidation with Tenant, or to any
person or entity which acquires all the assets of Tenant's business as a going
concern, provided that (i) the assignee or sublessee assumes, in full, the
obligations of Tenant under this Lease; (ii) Tenant remains fully liable under
this Lease, and (iii) the use of the Premises under Section 1.9 remains
unchanged; (iv) the successor to Tenant has a net worth, computed in accordance
with generally accepted accounting principals, at least equal to the greater of
(1) net worth of Tenant immediately prior to such merger, consolidation, or
transfer or (2) the net worth of Tenant herein named on the date of this Lease;
and (v) proof satisfactory to Landlord of such net worth shall have been
delivered to Landlord at least ten (10) days prior to the effective date of any
such transaction.
12.4 NO RELEASE. No subletting or assignment shall release
Tenant of Tenant's obligations under this Lease or alter the primary liability
of Tenant to pay the minimum Annual Rent and Additional Rental and to perform
all other obligations to be performed by Tenant hereunder. The acceptance of
any monetary sums by Landlord from any other person shall not be deemed to be a
waiver by Landlord of any provision hereof. Consent to one assignment or
subletting shall not be deemed consent to any future assignment or subletting.
In the event of default in the performance of any of the terms hereof, Landlord
may proceed directly against Tenant without necessity of exhausting remedies
against such assignee, subtenant or successor. Landlord may consent to
subsequent assignments of the Lease or subletting or amendments or
modifications to the Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant, and without obtaining its or their consent thereto
and any such actions shall not relieve Tenant of liability under this Lease.
ARTICLE 13
DAMAGE OR DESTRUCTION
13.1 DEFINITIONS.
(a) "Premises Partial Damage" shall mean if the Premises
are damaged or destroyed to the extent that the cost of repair is less than
fifty percent of the then replacement costs of the Premises.
(b) "Premises Total Destruction" shall mean if the
Premises are damaged or destroyed to the extent that the cost of repair is
fifty percent or more of the then replacement cost of the Premises.
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11
(c) "Premises Building Partial Damage" shall mean if the
Building of which the Premises are a part is damaged or destroyed to the extent
that the cost of the repair is less than fifty percent of the then replacement
cost of the building.
(d) "Premises Building Total Destruction" shall mean
the Building of which the Premises arc a part is damaged or destroyed to the
extent that the cost to repair is fifty percent or more of the then replacement
cost of the Building.
(e) "Insured Loss" shall mean damage or destruction
which was covered by an event required to be covered by the insurance described
in Article 9. The fact that an Insured Loss has a deductible amount shall not
make the loss an uninsured loss.
(f) "Replacement Costs" shall mean the amount of money
necessary to be spent in order to repair or rebuild the damaged area to the
condition that existed immediately prior to the damage occurring excluding all
improvements made by Tenant.
13.2 PREMISES PARTIAL DAMAGE:
PREMISES BUILDING PARTIAL DAMAGE.
(a) Insured Loss: Subject to the provisions of
paragraphs 13.4 and 13.5, if any at any time during the Term of this Lease
there is damage which is Insured Loss and which falls into the classification
of either Premises Partial Damage or Premises Building Partial Damage, then
Landlord shall, at Landlord's expense, repair such damage to the Premises, but
not Tenant's fixtures, equipment or tenant improvements, as soon as reasonably
possible and this Lease shall continue in full force and effect.
(b) Uninsured Loss: Subject to the provisions of
paragraphs 13.4 and 13.5, if at any time during the term of this Lease there is
damage which is not an Insured Loss and which falls into the classification of
either Premises Partial Damage or Premises Building Partial Damage, unless
caused by a negligent or willful act of Tenant (in which event Tenant shall
make the repairs at Tenant's expense), which damage prevents Tenant from using
the Premises, Landlord may at Landlord's option either (i) repair such damage
as soon as reasonably possible at Landlord's expense, in which event this Lease
shall continue in full force and effect, or (ii) give written notice to Tenant
within thirty (30) days after the date of the occurrence of such damage of
Landlord's intention to cancel and terminate this Lease on the date of the
occurrence of such damage. In the event Landlord elects to give such notice of
Landlord's intention to cancel and terminate this Lease, Tenant shall have the
right within ten (10) days after the receipt of such notice to give written
notice to Landlord of Tenant's intention to repair such damage at Tenant's
expense, without reimbursements from Landlord, in which event this Lease shall
continue in full force and effect, and Tenant shall proceed to make such
repairs as soon as reasonably possible. If Tenant does not give such notice
within such 10-day period, this Lease shall be cancelled and terminated as of
the date of the occurrence of such damage.
13.3 PREMISES TOTAL DESTRUCTION; PREMISES BUILDING TOTAL
DESTRUCTION. Subject to the provisions to paragraphs 13.4 and 13.5, if at any
time during the term of this Lease there is damage, whether or not it is an
Insured Loss, and which falls into the classifications of either (i) Premises
Total Destruction, or (ii) Premises Building Total Destruction, then Landlord
may at Landlord's option either (i) repair such damage or destruction, but not
Tenant's fixtures, equipment or tenants improvements, as soon as reasonably
possible at Landlord's expense, and this Lease shall continue in full force and
effect, or (ii) given written notice to Tenant within thirty (30) days after
the date of occurrence of such damage of Landlord's intention to cancel and
terminate this Lease, in which case this Lease shall be cancelled and
terminated as of the date of the occurrence of such damage.
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13.4 DAMAGE NEAR END OF TERM.
(a) Subject to paragraph 13.4(b), if at any time during
the last six months of the Term of this Lease there is substantial damage,
whether or not an Insured Loss, which falls within the classification of
Premises Partial Damage, Landlord may at Landlord's option cancel and terminate
this Lease as of the date of occurrence of such damage by giving written notice
to Tenant of Landlord's election to do so within 30 days after the date of
occurrence of such damage.
(b) Notwithstanding paragraph 13.4(a), in the event that
Tenant has an option to extend or renew this Lease, and the time within which
said option may be exercised has not yet expired, Tenant shall exercise such
option, if it is to be exercised at all, no later than twenty (20) days after
the occurrence of an insured Loss falling within the classification of Premises
Partial Damage during the last six months of the term of this Lease. If Tenant
duly exercises such option during said twenty (20) day period, Landlord shall,
at Landlord's expense, repair such damage, but not Tenant's fixtures, equipment
or tenant improvements, as soon as reasonably possible and this Lease shall
continue in full force and effect. If Tenant fails to exercise such option
during said twenty (20) day period, then Landlord may, at Landlord's option
terminate and cancel this Lease as of the expiration of said twenty (20) day
period by giving written notice to Tenant of Landlord's election to do so
within ten (10) days after the expiration of said Twenty (20) day period,
notwithstanding any term or provision in the grant of option to the contrary.
13.5 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(a) In the event Landlord repairs or restores the
Premises pursuant to the provisions of this Article 13, the rent payable
hereunder for the period during which such damage, repair or restoration
continues shall be abated in proportion to the degree to which Tenant's use of
the Premises is impaired. Except for abatement of rent, if any, Tenant shall
have no claim against Landlord for any damage suffered by reason of any such
damage, destruction, repair or restoration.
(b) If Landlord shall be obligated to repair of restore
the Premises under the provisions of this Article 15, and shall not commence
such repair or restoration within ninety (90) days after such obligation shall
accrue, Tenant may at Tenant's option cancel and terminate this Lease by giving
Landlord written notice of Tenant's election to do so at any time prior to
commencement of such repair or restoration. In such event this Lease shall
terminate as of the date of such notice.
13.6 TERMINATION - ADVANCE PAYMENTS. Upon termination of this
Lease pursuant to this Article 13, an equitable adjustment shall be made
concerning advance rent and any advance payments made by Tenant to Landlord.
Landlord shall, in addition, return to Tenant so much of Tenant's security
deposit as has not theretofore been applied by Landlord.
13.7 WAIVER. Landlord and Tenant waive the provisions of any
statute which relate to termination of leases when leased property is destroyed
and agree that such event shall be governed by the terms of this Lease.
ARTICLE 14
EMINENT DOMAIN
14.1 TAKING. The term "Taking" as used in this Article 16 shall
mean an appropriation or taking under the power of eminent domain by any public
or quasi-public authority or a voluntary sale
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or conveyance in lieu of condemnation but under threat of condemnation.
14.2 TOTAL TAKING. In the event of Taking the entire Premises,
this Lease shall terminate and expire as of the date possession is delivered to
the condemning authority, and Landlord and Tenant shall each be released from
any liability accruing pursuant to this Lease after the termination.
14.3 PARTIAL TAKING. If there is a Taking of more than
twenty-five percent (25%) of the net rentable area of the Premises, either
Landlord or Tenant may terminate this Lease as of the date the condemning
authority takes possession of that portion of the Premises subject to the
Taking, upon giving notice in writing of such election within thirty (30) days
after receipt by Tenant from Landlord of written notice that a portion of the
Premises have been so appropriated or taken.
14.4 TERMINATION OF LEASE. If this Lease is terminated as
provided above, Landlord shall be entitled to the entire award or compensation
in such condemnation proceedings, or settlement in lieu thereof, but the
Minimum Monthly Rental and Additional Rental for the last month of Tenant's
occupancy shall be prorated.
14.5 CONTINUATION OF LEASE. In the event neither Landlord nor
Tenant elect to terminate this Lease as provided above, or in the event less
than twenty-five percent (25%) of the net rentable area of the Premises was
subject to the Taking, then the Tenant shall continue to occupy the portion of
the premises which was not the subject of the Taking and the following
provisions shall apply: (a) the Minimum Monthly Rental shall be reduced in
proportion to the percentage decrease, if any, in the net rentable area of the
Premises by reason of the Taking; and (b) Landlord shall be entitled to receive
the award for compensation in such proceedings. Tenant hereby waives any
statutory rights of termination that may arise by reason of any partial Taking
of the Premises, under power of eminent domain.
ARTICLE 15
DEFAULTS BY TENANT
15.1 EVENTS OF DEFAULT. The occurrence of one or more of the
following events shall constitute a default by Tenant under this Lease:
(a) The failure by Tenant to pay when due any amount of
Minimum Annual Rental, Additional Rental, or any other monetary obligation
owing by Tenant to Landlord hereunder;
(b) The failure by Tenant to observe or perform any of
the express or implied covenants, obligations or conditions of this Lease to be
observed or performed by Tenant, where such failure shall continue for a period
of fifteen (15) days after written notice thereof from Landlord to Tenant. If
the nature of Tenant's default is such that more than fifteen (15) days are
reasonably required for its cure, then Tenant shall not be deemed to be in
default if Tenant shall commence such cure within said fifteen (15) day period
and thereafter diligently prosecute such cure to completion, which completion
shall not occur later than thirty (30) days from the date of such notice from
Landlord;
(c) The vacation or abandonment of the premises by
Tenant. Abandonment is herein defined to include, but is not limited to, any
absence by Tenant from the Premises for five (5) business days or longer while
Tenant is in default under any other provision of this Lease;
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(d) The making by Tenant of any general assignment for
the benefit of creditors; or should there be filed against Tenant a petition to
have Tenant adjudged a bankrupt or a petition for reorganization of arrangement
under any law relating to bankruptcy (unless, in the case of a petition filed
against Tenant, the same is dismissed within thirty (30) days); or should an
appointed trustee or receiver take possession of substantially all of Tenant's
assets located at the Premises, or of Tenant's interest in this Lease, where
possession is not restored to Tenant within thirty (30) days; or should
substantially all of Tenant's assets located at the Premises or Tenant's
interest in this Lease have been attached or judicially seized, where the
seizure is not discharged within thirty (30) days.
15.2 REMEDIES UPON DEFAULT. Upon the occurrence of one or more
of the foregoing events of default, and in addition to any other rights or
remedies of Landlord provided by law or otherwise, without further notice or
demand of any kind to Tenant or any other person, Landlord may: (a) without
declaring this Lease terminated, re-enter the Premises and occupy the whole or
any part thereof for and on account of Tenant; collect any unpaid rentals and
other charges, which have become payable, or which may thereafter become
payable; and remove all persons and property from the Premises, and any such
property so removed may be restored in a public warehouse or elsewhere at the
cost of and for the account of Tenant; or (b) re-enter the Premises and elect
to terminate this Lease and all of the rights of Tenant in or to the Premises.
Landlord shall not be deemed to have terminated this Lease,
or the liability of Tenant to pay any Minimum Monthly Rental, Additional
Rental, or other charges later accruing, by any re-entry of the Premises, or by
any action in unlawful detainer or otherwise to obtain possession of the
Premises, unless Landlord shall have notified Tenant in writing that it has so
elected to terminate this Lease.
15.3 TERMINATION OF LEASE. Should Landlord elect to terminate
this Lease pursuant to the provisions of Section 15.2(b), Landlord may recover
from Tenant, as damages, the following: (a) the worth at the time of award of
any unpaid rental which has been earned at the time of termination; plus (b)
the worth at time of award of the amount which the unpaid rental which would
have been earned after termination until the time of award exceeds the amount
of rental loss Tenant proves could have been reasonably avoided; plus (c) the
worth at the time of award of the amount by which the unpaid rental for the
balance of the Term after the time of award exceeds the amount of the rental
loss that Tenant proves could be reasonably avoided; plus (d) any other amount
necessary to compensate Landlord for all the detriment proximately caused by
Tenant's failure to perform its obligation under this Lease or which in the
ordinary course of things would be likely to result therefrom, including, but
not limited to, any costs or expenses incurred by Landlord in (i) retaking
possession of the Premises, including reasonable attorneys' fees therefor, (ii)
maintaining or preserving the Premises after any default, (iii) preparing the
Premises for reletting to a new tenant, including repairs or alterations to the
Premises, (iv) leasing commission, or, (v) any other costs necessary or
appropriate to relet the Premises; plus (e) at Landlord's election, any other
amounts in addition to or in lieu of the foregoing as may be permitted from
time to time by the laws of the State of California.
As used in subparagraphs (a) and (b) above, the "worth at
the time of award" is computed by allowing interest at the maximum lawful rate.
As used in subparagraph (c) above, the "worth at the time of the award" is
computed by discounting such amount at the discount rate of the Federal Reserve
Bank situated nearest to the location of the Building at the time of award plus
one percent (1%).
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ARTICLE 16
DEFAULTS BY LANDLORD
If Landlord fails to perform any of the covenants, provisions or
conditions contained in this Lease on its part to be performed, within thirty
(30) days after written notice of default or if more than thirty (30) days
shall be required because of the nature of the default, if Landlord shall fail
to proceed diligently to cure the default after written notice, then Landlord
shall be liable to Tenant for full damages sustained by Tenant as a proximate
result of Landlord's breach, however, it is expressly understood and agreed
that (1) any money judgement resulting from any default or other claim arising
under this Lease shall be satisfied only out of the proceeds of sale received
upon execution of such judgement and levy against the right, title and interest
of Landlord in the Building, and out of the net rents, issues, profits and
other income, actually received by Landlord from the operation of the Building;
and (2) no other real, personal or mixed property of Landlord, whatever
situated, shall be subject to levy on any such judgement obtained against
Landlord.
ARTICLE 17
SUBORDINATION, ATTORNMENT AND TENANT'S CERTIFICATE
17.1 SUBORDINATION. Upon written request of Landlord, or
Landlord's Mortgagee or the beneficiary of a deed of trust of Landlord, Tenant
will subordinate its rights pursuant to the Lease in writing to the lien of any
mortgage or deed of trust (or, in the alternative, cause the lien of said
mortgage or deed of trust to be subordinated to this Lease), and to all
advances made of thereafter to be made upon the security thereof.
17.2 ATTORNMENT. In the event any proceedings are brought for
foreclosure, or in the event of the exercise of the power of sale under any
mortgage or deed of trust made by Landlord covering the Premises, this Lease
shall not be terminated. Tenant shall attorn to the purchaser under this Lease
upon such foreclosure or sale, and recognize the purchaser or lessor as
Landlord under this Lease, provided that the purchaser shall acquire and accept
the Premises subject to this Lease.
17.3 TENANT'S CERTIFICATE. Tenant, within ten (10) days from
receipt of Landlord's written request, shall execute, acknowledge and deliver
to Landlord a written statement certifying (i) that this Lease is in full force
and effect, without modification (or, if there have been modifications, that
the same is in full force and effect as modified, and stating the
modifications), (ii) that there are no uncured defaults in Landlord's
performance and that Tenant has no right of offset, counterclaim or deduction
against Minimum Monthly Rental and Additional Rental, and (iii) the date to
which the Minimum Monthly Rental and Additional Rental have been paid, and any
other matters reasonably requested by Landlord. Failure of Tenant to execute
and deliver this statement shall constitute at Landlord's option, either (i) a
breach of this Lease, or (ii) acceptance of the Premises by Tenant and Tenant's
acknowledgement that the statements referenced above are true and correct,
without exception.
ARTICLE 18
NOTICES
Except as otherwise required by Law, any notice, information, request
or reply (the "Notice" for purposes of this Article only) required or permitted
to be given under the provisions of this Lease shall be in writing and shall be
given or served either
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personally or by mail. If given or served by mail, such notice shall be deemed
sufficiently given if (a) deposited in the United States mail, certified mail,
returned receipt requested, postage paid, or (b) sent by express mail, or other
similar overnight services, provided proof of service is available, addressed
to the addresses of the parties specified in Section 1.14. Any Notice given or
served by mail shall be deemed given or served as of the date of deposit in the
mails. Either party may, by written notice to the other in the manner
specified herein, specify an address within the United States for Notices in
lieu of the address specified in Section 1.14.
ARTICLE 19
MISCELLANEOUS
19.1 WAIVER. Any waiver by Landlord of a breach of a covenant of
this Lease by Tenant shall not be construed as a waiver of a subsequent breach
of the same covenant. The consent or approval by Landlord to anything requiring
Landlord's consent or approval shall not be deemed a waiver of Landlord's right
to withhold consent or approval of any subsequent similar act by Tenant. No
breach by Tenant of a covenant of this Lease shall be deemed to have been
waived by Landlord unless the waiver is in writing signed by Landlord.
19.2 RIGHTS CUMULATIVE. Except as provided herein to the
contrary, the rights and remedies of Landlord specified in this Lease shall be
cumulative and in addition to any rights and remedies not specified in this
Lease.
19.3 ENTIRE AGREEMENT. It is understood that there are no oral or
written agreements or representations between the parties hereto affecting this
Lease, and this Lease supersedes and cancels any and all previous negotiations,
arrangement, representations, brochures, agreements and understandings, if any,
between Landlord and Tenant or displayed by Landlord to Tenant.
19.4 NO REPRESENTATION. Landlord reserves the absolute right to
effect such other tenancies in the Building as Landlord, in the exercise of its
sole business judgement, shall determine to best promote the interests of the
Building. Tenant does not rely on the fact, nor does Landlord represent, that
any specific tenant or number of tenants shall, during the Term of this Lease,
occupy any space in the Building.
19.5 AMENDMENTS IN WRITING. No provisions of this Lease may be
amended except by an agreement in writing signed by Landlord and Tenant.
19.6 NO PRINCIPAL AGENT RELATIONSHIP. Nothing contained in this
Lease shall be construed as creating the relationship of principal and agent,
employer and employee, affiliate, partnership or joint venture between Landlord
and Tenant.
19.7 LAWS OF CALIFORNIA TO GOVERN. This Lease shall be governed
by and construed in accordance with the laws of the State of California.
19.8 SEVERABILITY. If any provisions of this Lease of the
application of such provision to any person, entity or circumstances, is found
invalid or unenforceable by a court of competent jurisdiction, the
determination shall not effect the other provisions of this Lease and all other
provisions of this Lease shall be deemed valid and enforceable.
19.9 SUCCESSORS. All rights and obligations of Landlord and
Tenant under this Lease shall extend to and bind the respective heirs,
executors, administrators, and the permitted conces
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sionaires, successors, subtenants and assignees of the parties. If there is
more than one (1) Tenant, each shall be bound jointly and severally by the
terms, covenants and agreements contained in this Lease.
19.10 MISSING
19.11 WARRANTY OF AUTHORITY. If Tenant is a corporation or
partnership, each individual executing this Lease on behalf of the corporation
or partnership represents and warrants that he or she is duly authorized to
execute and deliver this Lease on behalf of the corporation or partnership, and
that this Lease is binding upon the corporation or partnership. If Tenant is a
corporation, the person executing this Lease on behalf of Tenant hereby
covenants and warrants that (i) Tenant is a duly qualified corporation and
steps have been taken prior to the date hereof to qualify Tenant to do business
in the State of California, (ii) all franchise and corporate taxes have been
paid to date, and (iii) all future forms, reports, fees and other documents
necessary to comply with applicable laws will be filed when due.
19.12 MORTGAGE CHANGES. It is mutually understood and
acknowledged that Landlord may, from time to time, finance the construction of,
and/or may obtain permanent financing on, the improvements constituting a
portion of the Premises herein by means of a loan or loans, and that before
said loan(s) are approved and closed, a financial institution must approve this
Lease, and, in order to receive such approval, this Lease may have to be
amended or modified. Provided that The Term hereof is not altered, and
Tenant's obligation to pay Minimum Monthly Rentals and Additional Rental is not
adversely affected thereby, Tenant agrees that it shall consent to, and
immediately execute, any such amendment or modification of this Lease as may be
requested by any said financial institution. In the event Tenant so fails to
consent to or execute any such amendment or modification, Landlord, at its
option, in addition to all other rights of Landlord by law, may cancel and
terminate this Lease on thirty (30) days' written notice to Tenant.
19.13 BROKERS. Tenant represents and warrants that it has not had
any dealings with any realtors, brokers or agents in connection with the
negotiation of this Lease except as may be specifically set forth in Section
1.13 and agrees to pay any realtors, brokers or agents not referenced in
Section 1.13 and to hold Landlord harmless from the failure to pay any
realtors, brokers or agents and from any cost, expense or liability for any
compensation, commission or charges claimed by any other realtors, brokers or
agents claiming by, through or on behalf of it with respect to this Lease
and/or the negotiations hereof.
19.14 RECORDING. Tenant shall not record this Lease or any short form
of this Lease. Tenant, upon the request of Landlord, shall execute and
acknowledge a short form memorandum of this Lease for recording purposes. Upon
the expiration of earlier termination of this Lease for any reason, Tenant,
within three (3) days of the date of request by Landlord, shall convey to
Landlord by quitclaim deed any and all interest Tenant may have under this
Lease.
19.15 RIGHT TO SHOW PREMISES. During the last one hundred twenty
(120) days of the Term, Landlord shall have the right to go upon the Premises
to show same to prospective tenants or purchasers and to post appropriate
signs.
19.16 FORCE MAJEURE. Any prevention, delay or stoppage due to
strikes, lockouts, labor disputes, acts of God, inability to obtain labor or
materials or reasonable substitutes therefor, governmental restrictions,
governmental regulations, governmental controls judicial orders, enemy or
hostile governmental action, civil commotion, fire or other casualty, and other
causes beyond the reasonable control of the party obligated to perform, shall
excuse the performance by that party for a period equal to the prevention,
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delay or stoppage, except the obligations imposed with regard to Minimum
Monthly Rental and Additional Rental to be paid by Tenant pursuant to this
Lease; provided the party prevented, delayed or stopped shall have given the
other party written notice thereof within thirty (30) days of such event
causing the prevention, delay or stoppage. Notwithstanding anything to the
contrary contained in this Section 19.16, in the event any work performed by
Tenant or Tenant's contractors results in a strike, lockout and/or labor
dispute, the strike, lockout and/or labor dispute shall not excuse the
performance by Tenant of the Provisions of thins Lease.
19.17 HOLDING OVER. This Lease shall terminate without further
notice upon the expiration of the Term, and should Tenant hold over in the
premises beyond this date, the holding over shall not constitute a renewal or
extension of this Lease or give Tenant any rights under this Lease. In such
event, Landlord may, in its sole discretion, treat Tenant as a tenant at will,
subject to all of the terms and conditions of this Lease, except that the
19.18 DELETED
19.19 DELETED
19.20 LANDLORD'S MAINTENANCE OBLIGATIONS. Subject to the
obligations of the Tenant set forth in Section 13.3, Landlord shall make all
necessary repairs to the exterior walls, exterior doors, roof, windows, utility
pipes, conduits, fixtures, exterior glass, stairs, corridors and other common
areas of the building, and Landlord shall keep the building in a safe, clean
and neat condition, and shall use reasonable efforts to keep all equipment used
in common with other tenants, such as elevators, plumbing, heating,
air-conditioning and similar equipment, in good condition and repair. Expect as
provided in Section 15.4, there shall be no abatement of Minimum Monthly Rental
or Additional Rental and in no event shall there be any liability to Landlord
by reason of any injury to or interference with Tenant's business arising from
the making of any repairs, alterations or improvements in of to any portion of
the Building, or in or to fixtures, appurtenances and equipment therein or
thereon.
Minimum annual Rental shall be an amount equal to one and
one half (1.5) times the sum of the Minimum Annual Rental and Additional Rental
which was payable for the twelve (12) month period immediately preceding the
expiration of the Lease. In the event Tenant fails to surrender the Premises
upon the expiration of this Lease, Tenant shall indemnify accrue therefrom,
including, without limitation, any claims made by any succeeding tenant founded
on or resulting from Tenant's failure to surrender. Acceptance by Landlord of
any Minimum Monthly Rental or Additional Rental after the expiration or earlier
termination of this Lease shall not constitute a consent to a hold over
hereunder, constitute acceptance of Tenant as a tenant at will or result in a
renewal of this Lease.
19.21 ATTORNEYS' FEES. In the event that at any time after the
date of this Lease either Landlord or Tenant shall institute any action or
proceeding against the other relating to the provisions of this Lease, or any
default hereunder, the party not prevailing in the action or proceeding shall
reimburse the prevailing party for the reasonable expenses of attorneys' fees
and all costs or disbursements incurred therein by the prevailing party,
including without limitation, any fees, costs or disbursements incurred on any
appeal from the action or proceeding.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
on the day and year first above written.
LANDLORD:
XXXXX DE LA XXXXXX XXXXXXXXX
REVOCABLE TRUST NO. 1
By:/S/ Xxxxx De La Fuente Alexander
-------------------------------------
Xxxxx De La Xxxxxx Xxxxxxxxx, Trustee
Date:
-----------------------------------
TENANT:
By: /S/ Xxxx Kostnian CEO/CFO
-------------------------------------
Date: /S/ 11/30/95
-----------------------------------
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ADDENDUM TO LEASE
This addendum is entered between Xxxxx De La Xxxxxx Xxxxxxxxx Revocable Trust
No. 1 ("Landlord") and Xxxxxx Xxxxxxx Group ("Tenant").
Landlord and Tenant agree as follows:
1. Tenant
Improvements: Tenant to build-out Tenant-Improvements, using
building standard materials. The build-out shall
include entire 2nd floor with the exception of Suite
2900, per plans submitted by Tenant and approved by
Landlord and referenced as Exhibit "A"
LANDLORD:
XXXXX DE LA XXXXXX XXXXXXXXX
REVOCABLE TRUST NO. 1
By:/S/ Xxxxx De La Fuente Alexander
-------------------------------------
Xxxxx De La Xxxxxx Xxxxxxxxx, Trustee
Date:
-----------------------------------
TENANT:
XXXXXX XXXXXXX GROUP, INC.
By: /S/ Xxxx Kostnian
-------------------------------------
[Xxxx Kostnian COO/CFO]
Date:[11/30/95]
-----------------------------------
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EXHIBIT "A"
------------------- -----------------
Landlord's Initials Tenant's Initials
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The Xxxxxx Xxxxxxx Group, Inc.
0000 Xxxxxxxxx Xxxxx
Stes. 2000, 2100, 2500, 2700 and 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
[Nov 28, 1993]
LEASE ADDENDUM NO. 1
1. Landlord agrees to not lease space to another travel agency business
at 0000 Xxxxxxxxx Xxxxx (at the RFA Building) over the duration of
this lease which is set to [commence on January 1, 1995.]
Landlord: Tenant:
/S/ [5/19/93] /S/
-------------------------- -------------------------
Initial and Date Initial Date
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TABLE OF CONTENTS
Page(s)
ARTICLE
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1 BASIC LEASE PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2 EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3 PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4 TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
5 ALTERNATIVE COMMENCEMENT DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6 RENTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
7 SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
8 UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
9 INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10 TENANT'S CONDUCT OF BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
11 MAINTENANCE, REPAIRS AND ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
12 ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
13 DAMAGE OR DESTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
14 EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
15 DEFAULTS BY TENANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
16 DEFAULTS BE LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
17 SUBORDINATION, ATTORNMENT AND TENANT'S CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
18 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
19 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SIGNATURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
LEASE ADDENDUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
EXHIBIT "A" - FLOOR PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
24
LEASE ADDENDUM
This Addendum, dated June 27, 1995, corresponds to the lease
("original lease") executed on November 22, 1994 between XXXXX DE LA FUENTE
ALEXANDER REVOCABLE TRUST NO. 1, as "Lessor", and XXXXXX XXXXXXX GROUP, INC.,
as "Lessee".
1. Whereas the XXXXXX XXXXXXX GROUP, INC., is interested in leasing
additional space in suite 2900, consisting of 1130 square feet; Landlord is
willing to provide an incentive to lessee to facilitate the move, therefore;
LANDLORD AND TENANT Agree to amend the existing lease as follows;
Beginning July 1, 1995, lessee agrees to lease suite 2900 under the
following provisions:
A) The lease rate for the months of July, August and September,
1995 will be $5,812.00 plus $565.00 (.50c. for the 0000 xxxxxx xxxx xx xxxxx
0000) for a total of $6,377.00.
B) Beginning October 1, 1995 and for the remaining term of the
lease, lease payment will be $6,942.00 ($5,812.00 plus $1,130.00).
C) All utilities and NNN are included as part of the rent
payment.
2. All terms and conditions contained in the original lease apply to this
amendment and any existing amendments of record.
Execution of this Addendum by the parties below is acknowledgement of
the amendment of the original lease for a period of ninety days to expire on
September 30, 1995 under the same terms and conditions.
XXXXXX XXXXXXX GROUP, INC. XXXXX DE LA FUENTE ALEXANDER
REVOCABLE TRUST
NO. 1
By:/S/ Xxx Xxxxxxxx By:/S/ Xxxxx De La Fuente Alexander
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Xxx Xxxxxxxx Xxxxx De La Xxxxxx Xxxxxxxxx
President Trustee
