COMMERCIAL LEASE
THIS LEASE AGREEMENT is made and entered into October 1, 2003, by and between AU
Investments, a California General Partnership, whose address is 1201 Xxx Xxxxxx,
Xxxxx Xxxxxx Xxxxxxx, Xxxxxxxxxx 00000, (hereinafter referred to as "Landlord"),
and Digital Learning Institute, Inc., whose address is 00000 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx, (hereinafter referred to as "Tenant").
ARTICLE I - GRANT OF LEASE
Landlord, in consideration of the rents to be paid and the covenants and
agreements to be performed and observed by the Tenant, does hereby lease to the
Tenant and the Tenant does hereby lease and take from the Landlord the property
described the entire First Floor of the premises except that part of the
warehouse area leased to Advanced Hi-Tech Corporation as identified in Exhibit A
attached hereto and hereafter referred to as the "Leased Premises", together
with, as part of the parcel, all improvements located thereon.
ARTICLE II - LEASE TERM
Section l. Total Term of Lease. The term of this Lease shall begin on October 1,
2003 ("Commencement Date"), and shall terminate on September 30, 2008
("Termination Date").
ARTICLE III - RENT
The Tenant agrees to pay the Landlord and the Landlord agrees to accept, during
the term hereof, at such place as the Landlord shall from time to time direct by
notice to the Tenant, rent at the following rates and times:
Section 1. Annual Rent. Annual rent for the term of the Lease shall be Two
Hundred and Twenty Two Thousand Dollars ($222,000.00), plus any applicable sales
taxes.
Section 2. Payment of Yearly Rent. The annual rent shall be payable in advance
in equal monthly installments of one-twelfth (1/12th) of the total yearly rent,
which shall be Eighteen Thousand, Five Hundred Dollars ($18,500.00), and payable
on the first day of each and every calendar month during the term hereof, and
prorata for the fractional portion of any month, except that on the first day of
the calendar month immediately following the Commencement Date, the Tenant shall
also pay to the Landlord rent at the said rate for any portion of the preceding
calendar month included in the term of this Lease. Reference to yearly rent
hereunder shall not be implied or construed to the effect that this Lease or the
obligation to pay rent hereunder is from year to year, or for any term shorter
than the existing Lease term, plus any extensions as may be agreed upon. A late
fee in the amount of One Hundred and Eighty Five Dollars ($185.00) shall be
assessed if payment is not postmarked or received by Landlord on or before the
tenth day of each month.
LANDLORD _________ TENANT _________
ARTICLE IV - SECURITY DEPOSIT
The Tenant has deposited with the Landlord the sum of Twenty Two Thousand, Seven
Hundred and Fifty Dollars ($22,750.00) as security for the full and faithful
performance by the Tenant of all the terms of this lease required to be
performed by the Tenant. Such sum shall be returned to the Tenant after the
expiration of this lease, provided the Tenant has fully and faithfully carried
out all of its terms. In the event of a bona fide sale of the property of which
the leased premises are a part, the Landlord shall have the right to transfer
the security to the purchaser to be held under the terms of this lease, and the
Landlord shall be released from all liability for the return of such security to
the Tenant.
ARTICLE V - TAXES
Section l. Personal Property Taxes. The Tenant shall be liable for all taxes
levied against any leasehold interest of the Tenant or personal property and
trade fixtures owned or placed by the Tenant in the Leased Premises.
Section 2. Real Estate Taxes. The landlord shall pay all Real Estate Taxes which
shall be levied upon the Leased Premises during the term of this Lease.
Section 3. Changes in Method of Taxation. Landlord and Tenant further agree that
if at any time during the term of this Lease, the present method of taxation or
assessment of real estate shall be changed so that the whole or any part of the
real estate taxes, assessment or governmental impositions now levied, assessed
or imposed on the Leased Premises shall, in lieu thereof, be assessed, levied,
or imposed wholly or in part, as a capital levy or otherwise upon the rents
reserved herein or any part thereof, or as a tax, corporation franchise tax,
assessment, levy or charge, or any part thereof, measured by or based, in whole
or in part, upon the Leased Premises or on the rents derived therefrom and
imposed upon the Landlord, then the Tenant shall pay all such taxes,
assessments, levies, impositions, or charges. Nothing contained in this Lease
shall require the Tenant to pay an estate, inheritance, succession, capital
levy, corporate franchise, gross receipts, transfer or income tax of the
Landlord, nor shall any of the same be deemed real estate taxes as defined
herein unless the same be imposed in lieu of the real estate taxes.
ARTICLE VI - IMPROVEMENTS, UTILITIES AND COMMON EXPENSES
Section 1. Improvements. Tenant may make improvements to the Leased Premises but
only after approval of the Landlord. Tenant shall obtain all certificates,
permits, licenses and other authorizations of governmental bodies or authorities
which are necessary to permit the improvements on the demised premises and shall
keep the same in full force and effect at Tenant's cost.
LANDLORD _________ TENANT _________
Section 2. Utilities. Tenant shall pay for all water, sanitation, sewer,
electricity, light, heat, gas, power, fuel, janitorial, and other services
incident to Tenant's use of the Leased Premises, whether or not the cost thereof
be a charge or imposition against the Leased Premises.
Section 3. Common Expenses. Tenant shall pay to Landlord in addition to the
monthly rent as set out in ARTICLE III, section 2 above, common expenses of the
property which are attributable to Tenant's use of the rental premises. For
purposes of this lease the parties agree that said sum shall be fixed at
$1000.00 per month for the entire term of this agreement.
ARTICLE VII - OBLIGATIONS FOR REPAIRS
Section 1. LANDLORD'S Repairs. Subject to any provisions herein to the contrary,
and except for maintenance or replacement necessitated as the result of the act
or omission of sub lessees, licensees or contractors, the Landlord shall be
required to repair only defects, deficiencies, deviations or failures of
materials or workmanship in the building. The Landlord shall keep the Leased
Premises free of such defects, deficiencies, deviations or failures during the
first twelve (12) months of the term hereof.
Section 2. TENANT'S Repairs. The Tenant shall repair and maintain the Leased
Premises in good order and condition, except for reasonable wear and tear, the
repairs required of Landlord pursuant hereto, and maintenance or replacement
necessitated as the result of the act or omission or negligence of the Landlord,
its employees, agents, or contractors.
Section 3. Requirements of the Law. The Tenant agrees that if any federal, state
or municipal government or any department or division thereof shall condemn the
Leased Premises or any part thereof as not in conformity with the laws and
regulations relating to the construction thereof as of the commencement date
with respect to conditions latent or otherwise which existed on the Commencement
Date, or, with respect to items which are the Landlord's duty to repair pursuant
to Section 1 and 3 of this Article; and such federal, state or municipal
government or any other department or division thereof, has ordered or required,
or shall hereafter order or require, any alterations or repairs thereof or
installations and repairs as may be necessary to comply with such laws, orders
or requirements (the validity of which the Tenant shall be entitled to contest);
and if by reason of such laws, orders or the work done by the Landlord in
connection therewith, the Tenant is deprived of the use of the Leased Premises,
the rent shall be abated or adjusted, as the case may be, in proportion to that
time during which, and to that portion of the Leased Premises of which, the
Tenant shall be deprived as a result thereof, and the Landlord shall be
obligated to make such repairs, alterations or modifications at Landlord's
expense. All such rebuilding, altering, installing and repairing shall be done
in accordance with Plans and Specifications approved by the Tenant, which
approval shall not be unreasonably withheld. If, however, such condemnation,
law, order or requirement, as in this Article set forth, shall be with respect
to an item which shall be the Tenant's obligation to repair pursuant to Section
2 of this Article VI or with respect to Tenant's own costs and expenses, no
abatement or adjustment of rent shall be granted; provided, however, that Tenant
shall also be entitled to contest the validity thereof.
LANDLORD _________ TENANT _________
Section 4. TENANT'S Alterations. The Tenant shall have the right, at its sole
expense, from time to time, to redecorate the Leased Premises and to make such
non-structural alterations and changes in such parts thereof as the Tenant shall
deem expedient or necessary for its purposes; provided, however, that such
alterations and changes shall neither impair the structural soundness nor
diminish the value of the Leased Premises. The Tenant may make structural
alterations and additions to the Leased Premises provided that Tenant has first
obtained the consent thereto of the Landlord in writing. The Landlord agrees
that it shall not withhold such consent unreasonably. The Landlord shall execute
and deliver upon the request of the Tenant such instrument or instruments
embodying the approval of the Landlord which may be required by the public or
quasi public authority for the purpose of obtaining any licenses or permits for
the making of such alterations, changes and/or installations in, to or upon the
Leased Premises and the Tenant agrees to pay for such licenses or permits.
Section 5. Permits and Expenses. Each party agrees that it will procure all
necessary permits for making any repairs, alterations, or other improvements for
installations, when applicable. Each Party hereto shall give written notice to
the other party of any repairs required of the other pursuant to the provisions
of this Article and the party responsible for said repairs agrees promptly to
commence such repairs and to prosecute the same to completion diligently,
subject, however, to the delays occasioned by events beyond the control of such
party. Each party agrees to pay promptly when due the entire cost of any work
done by it upon the Leased Premises so that the Leased Premises at all times
shall be free of liens for labor and materials. Each party further agrees to
hold harmless and indemnify the other party from and against any and all injury,
loss, claims or damage to any person or property occasioned by or arising out of
the doing of any such work by such party or its employees, agents or
contractors. Each party further agrees that in doing such work that it will
employ materials of good quality and comply with all governmental requirements,
and perform such work in a good and workmanlike manner.
ARTICLE VIII - TENANT'S COVENANTS
Section 1. TENANT's Covenants. Tenant covenants and agrees as follows: a. To
procure any licenses and permits required for any use made of the Leased
Premises by Tenant, and upon the expiration or termination of this Lease, to
remove its goods and effects and those of all persons claiming under it, and to
yield up peaceably to Landlord the Leased Premises in good order, repair and
condition in all respects; excepting only damage by fire and casualty covered by
Tenant's insurance coverage, structural repairs (unless Tenant is obligated to
make such repairs hereunder) and reasonable wear and tear; b. To permit Landlord
and its agents to examine the Leased Premises at reasonable times and to show
the Leased Premises to prospective purchasers of the Building and to provide
Landlord, if not already available, with a set of keys for the purpose of said
examination, provided that Landlord shall not thereby unreasonably interfere
with the conduct of Tenant's business; c. To permit Landlord to enter the Leased
Premises to inspect such repairs, improvements, alterations or additions thereto
as may be required under the provisions of this Lease. If, as a result of such
repairs, improvements, alterations, or additions, Tenant is deprived of the use
of the Leased Premises, the rent shall be abated or adjusted, as the case may
be, in proportion to that time during which, and to that portion of the Leased
Premises of which, Tenant shall be deprived as a result thereof.
LANDLORD _________ TENANT _________
ARTICLE IX - INDEMNITY BY TENANT
Section l. Indemnity and Public Liability. The Tenant shall save Landlord
harmless and indemnify Landlord from all injury, loss, claims or damage to any
person or property while on the Leased Premises, unless caused by the willful
acts or omissions or gross negligence of Landlord, its employees, agents,
licensees or contractors. Tenant shall maintain, with respect to the Leased
Premises, public liability insurance with limits of not less than one million
dollars for injury or death from one accident and $250,000.00 property damage
insurance, insuring Landlord and Tenant against injury to persons or damage to
property on or about the Leased Premises. A copy of the policy or a certificate
of insurance shall be delivered to Landlord on or before the commencement date
and no such policy shall be cancellable without ten (10) days prior written
notice to Landlord
ARTICLE X - USE OF PROPERTY BY TENANT
Section 1. Use. The Leased Premises may be occupied and used by Tenant
exclusively as General Offices for developing and marketing Technical Equipment,
Internet Services, providing Educational Services and all related types of
Business'. Nothing herein shall give Tenant the right to use the property for
any other purpose or to sublease, assign, or license the use of the property to
any sub lessee, assignee, or licensee, which or who shall use the property for
any other use. Not withstanding said prohibition against subleasing and
licensing, Tenant may, however, rent or license its lecture rooms on the rented
premises to qualified third parties, on a day to day basis, in furtherance of
its business objectives of providing Educational Services.
ARTICLE XI - SIGNAGE
Section l. Exterior Signs. Tenant shall have the right, at its sole risk and
expense and in conformity with applicable laws and ordinances, to erect and
thereafter, to repair or replace, if it shall so elect signs on any portion of
the Leased Premises, providing that Tenant shall remove any such signs upon
termination of this lease, and repair all damage occasioned thereby to the
Leased Premises.
LANDLORD _________ TENANT _________
Section 2. Interior Signs. Tenant shall have the right, at its sole risk and
expense and in conformity with applicable laws and ordinances, to erect,
maintain, place and install its usual and customary signs and fixtures in the
interior of the Leased Premises.
ARTICLE XII - INSURANCE
Section 1. Insurance Proceeds. In the event of any damage to or destruction of
the Leased Premises, Tenant shall adjust the loss and settle all claims with the
insurance companies issuing such policies. The parties hereto do irrevocably
assign the proceeds from such insurance policies for the purposes hereinafter
stated to any institutional first mortgagee or to Landlord and Tenant jointly,
if no institutional first mortgagee then holds an interest in the Leased
Premises. All proceeds of said insurance shall be paid into a trust fund under
the control of any institutional first mortgagee, or of Landlord and Tenant if
no institutional first mortgagee then holds an interest in the Leased Premises,
for repair, restoration, rebuilding or replacement, or any combination thereof,
of the Leased Premises or of the improvements in the Leased Premises. In case of
such damage or destruction, Landlord shall be entitled to make withdrawals from
such trust fund, from time to time, upon presentation of: a. bills for labor and
materials expended in repair, restoration, rebuilding or replacement, or any
combination thereof; b. Landlord's sworn statement that such labor and materials
for which payment is being made have been furnished or delivered on site; and c.
the certificate of a supervising architect (selected by Landlord and Tenant and
approved by an institutional first mortgagee, if any, whose fees will be paid
out of said insurance proceeds) certifying that the work being paid for has been
completed in accordance with the Plans and Specifications previously approved by
Landlord , Tenant and any institutional first mortgagee in a first class, good
and workmanlike manner and in accordance with all pertinent governmental
requirements. Any insurance proceeds in excess of such proceeds as shall be
necessary for such repair, restoration, rebuilding, replacement or any
combination thereof shall be the sole property of Landlord subject to any rights
therein of Landlord's mortgagee, and if the proceeds necessary for such repair,
restoration, rebuilding or replacement, or any combination thereof shall be
inadequate to pay the cost thereof, Tenant shall suffer the deficiency.
Section 2. Subrogation. Landlord and Tenant hereby release each other, to the
extent of the insurance coverage provided hereunder, from any and all liability
or responsibility (to the other or anyone claiming through or under the other by
way of subrogation or otherwise) for any loss to or damage of property covered
by the fire and extended coverage insurance policies insuring the Leased
Premises and any of Tenant's property, even if such loss or damage shall have
been caused by the fault or negligence of the other party.
Section 3. Contribution. Tenant shall reimburse Landlord for all insurance
premiums connected with or applicable to the Leased Premises for whatever
insurance policy the Landlord, at its sole and exclusive option, should select.
LANDLORD _________ TENANT _________
ARTICLE XIII - DAMAGE TO DEMISED PREMISES
Section 1. Abatement or Adjustment of Rent. If the whole or any part of the
Leased Premises shall be damaged or destroyed by fire or other casualty after
the execution of this Lease and before the termination hereof, then in every
case the rent reserved in Article III herein and other charges, if any, shall be
abated or adjusted, as the case may be, in proportion to that portion of the
Leased Premises of which Tenant shall be deprived on account of such damage or
destruction and the work of repair, restoration, rebuilding, or replacement or
any combination thereof, of the improvements so damaged or destroyed, shall in
no way be construed by any person to effect any reduction of sums or proceeds
payable under any rent insurance policy.
Section 2. Repairs and Restoration. Landlord agrees that in the event of the
damage or destruction of the Leased Premises, Landlord forthwith shall proceed
to repair, restore, replace or rebuild the Leased Premises (excluding Tenant's
leasehold improvements), to substantially the condition in which the same were
immediately prior to such damage or destruction. The Landlord thereafter shall
diligently prosecute said work to completion without delay or interruption
except for events beyond the reasonable control of Landlord . Notwithstanding
the foregoing, if Landlord does not either obtain a building permit within
ninety (90) days of the date of such damage or destruction, or complete such
repairs, rebuilding or restoration and comply with conditions (a), (b) and (c)
in Section 1 of Article XIII within nine (9) months of such damage or
destruction, then Tenant may at any time thereafter cancel and terminate this
Lease by sending ninety (90) days written notice thereof to Landlord , or, in
the alternative, Tenant may, during said ninety (90) day period, apply for the
same and Landlord shall cooperate with Tenant in Tenant's application.
Notwithstanding the foregoing, if such damage or destruction shall occur during
the last year of the term of this Lease, or during any renewal term, and shall
amount to twenty-five (25%) percent or more of the replacement cost, (exclusive
of the land and foundations), this Lease, except as hereinafter provided in
Section 3 of Article XV, may be terminated at the election of either Landlord or
Tenant, provided that notice of such election shall be sent by the party so
electing to the other within thirty (30) days after the occurrence of such
damage or destruction.
Upon termination, as aforesaid, by either party hereto, this Lease and the term
thereof shall cease and come to an end, any unearned rent or other charges paid
in advance by Tenant shall be refunded to Tenant, and the parties shall be
released hereunder, each to the other, from all liability and obligations
hereunder thereafter arising.
ARTICLE XIV - CONDEMNATION
Section 1. Total Taking. If, after the execution of this Lease and prior to the
expiration of the term hereof, the whole of the Leased Premises shall be taken
under power of eminent domain by any public or private authority, or conveyed by
Landlord to said authority in lieu of such taking, then this Lease and the term
hereof shall cease and terminate as of the date when possession of the Leased
Premises shall be taken by the taking authority and any unearned rent or other
charges, if any, paid in advance, shall be refunded to Tenant.
LANDLORD _________ TENANT _________
Section 2. Partial Taking. If, after the execution of this Lease and prior to
the expiration of the term hereof, any public or private authority shall, under
the power of eminent domain, take, or Landlord shall convey to said authority in
lieu of such taking, property which results in a reduction by fifteen (15%)
percent or more of the area in the Leased Premises, or of a portion of the
Leased Premises that substantially interrupts or substantially obstructs the
conducting of business on the Leased Premises; then Tenant may, at its election,
terminate this Lease by giving Landlord notice of the exercise of Tenant's
election within thirty (30) days after Tenant shall receive notice of such
taking. In the event of termination by Tenant under the provisions of Section 1
of this Article XV, this Lease and the term hereof shall cease and terminate as
of the date when possession shall be taken by the appropriate authority of that
portion of the Entire Property that results in one of the above takings, and any
unearned rent or other charges, if any, paid in advance by Tenant shall be
refunded to Tenant.
Section 3. Restoration. In the event of a taking in respect of which Tenant
shall not have the right to elect to terminate this Lease or, having such right,
shall not elect to terminate this Lease, this Lease and the term thereof shall
continue in full force and effect and Landlord , at Landlord's sole cost and
expense, forthwith shall restore the remaining portions of the Leased Premises,
including any and all improvements made theretofore to an architectural whole in
substantially the same condition that the same were in prior to such taking. A
just proportion of the rent reserved herein and any other charges payable by
Tenant hereunder, according to the nature and extent of the injury to the Leased
Premises and to Tenant's business, shall be suspended or abated until the
completion of such restoration and thereafter the rent and any other charges
shall be reduced in proportion to the square footage of the Leased Premises
remaining after such taking.
Section 4. The Award. All compensation awarded for any taking, whether for the
whole or a portion of the Leased Premises, shall be the sole property of the
Landlord whether such compensation shall be awarded for diminution in the value
of, or loss of, the leasehold or for diminution in the value of, or loss of, the
fee in the Leased Premises, or otherwise. The Tenant hereby assigns to Landlord
all of Tenant's right and title to and interest in any and all such
compensation. However, the Landlord shall not be entitled to and Tenant shall
have the sole right to make its independent claim for and retain any portion of
any award made by the appropriating authority directly to Tenant for loss of
business, or damage to or depreciation of, and cost of removal of fixtures,
personalty and improvements installed in the Leased Premises by, or at the
expense of Tenant, and to any other award made by the appropriating authority
directly to Tenant.
Section 5. Release. In the event of any termination of this Lease as the result
of the provisions of this Article XIV, the parties, effective as of such
termination, shall be released, each to the other, from all liability and
obligations thereafter arising under this lease.
LANDLORD _________ TENANT _________
ARTICLE XV - DEFAULT
Section 1. LANDLORD'S Remedies. In the event that:
a. Tenant shall on three or more occasions be in default in the payment of rent
or other charges herein required to be paid by Tenant (default herein being
defined as payment received by Landlord ten or more days subsequent to the due
date), regardless of whether or not such default has occurred on consecutive or
non-consecutive months; or
b. Tenant has caused a lien to be filed against the Landlord's property and said
lien is not removed within thirty (30) days of recordation thereof; or
c. Tenant shall default in the observance or performance of any of the covenants
and agreements required to be performed and observed by Tenant hereunder for a
period of thirty (30) days after notice to Tenant in writing of such default (or
if such default shall reasonably take more than thirty (30) days to cure, Tenant
shall not have commenced the same within the thirty (30) days and diligently
prosecuted the same to completion); or
d. Sixty (60) days have elapsed after the commencement of any proceeding by or
against Tenant, whether by the filing of a petition or otherwise, seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under the present or future Federal Bankruptcy Act or any
other present or future applicable federal, state or other statute or law,
whereby such proceeding shall not have been dismissed (provided, however, that
the non-dismissal of any such proceeding shall not be a default hereunder so
long as all of Tenant's covenants and obligations hereunder are being performed
by or on behalf of Tenant); then Landlord shall be entitled to its election
(unless Tenant shall cure such default prior to such election), to exercise
concurrently or successively, any one or more of the following rights:
i. Terminate this Lease by giving Tenant notice of termination, in which
event this Lease shall expire and terminate on the date specified in such notice
of termination, with the same force and effect as though the date so specified
were the date herein originally fixed as the termination date of the term of
this Lease, and all rights of Tenant under this Lease and in and to the Premises
shall expire and terminate, and Tenant shall remain liable for all obligations
under this Lease arising up to the date of such termination, and Tenant shall
surrender the Premises to Landlord on the date specified in such notice; or
ii. Terminate this Lease as provided herein and recover from Tenant all
damages Landlord may incur by reason of Tenant's default, including, without
limitation, a sum which, at the date of such termination, represents the then
value of the excess, if any, of (a) the Minimum Rent, Percentage Rent, Taxes and
all other sums which would have been payable hereunder by Tenant for the period
commencing with the day following the date of such termination and ending with
the date herein before set for the expiration of the full term hereby granted,
over (b) the aggregate reasonable rental value of the Premises for the same
period, all of which excess sum shall be deemed immediately due and payable; or
LANDLORD _________ TENANT _________
iii. Without terminating this Lease, declare immediately due and payable
all Minimum Rent, Taxes, and other rents and amounts due and coming due under
this Lease for the entire remaining term hereof, together with all other amounts
previously due, at once; provided, however, that such payment shall not be
deemed a penalty or liquidated damages but shall merely constitute payment in
advance of rent for the remainder of said term. Upon making such payment, Tenant
shall be entitled to receive from Landlord all rents received by Landlord from
other assignees, tenants, and subtenants on account of said Premises during the
term of this Lease, provided that the monies to which tenant shall so become
entitled shall in no event exceed the entire amount actually paid by Tenant to
Landlord pursuant to the preceding sentence less all costs, expenses and
attorney's fees of Landlord incurred in connection with the reletting of the
Premises; or
iv. Without terminating this Lease, and with or without notice to Tenant,
Landlord may in its own name but as agent for Tenant enter into and upon and
take possession of the Premises or any part thereof, and, at landlord's option,
remove persons and property therefrom, and such property, if any, may be removed
and stored in a warehouse or elsewhere at the cost of, and for the account of
Tenant, all without being deemed guilty of trespass or becoming liable for any
loss or damage which may be occasioned thereby, and Landlord may rent the
Premises or any portion thereof as the agent of Tenant with or without
advertisement, and by private negotiations and for any term upon such terms and
conditions as Landlord may deem necessary or desirable in order to relet the
Premises. Landlord shall in no way be responsible or liable for any rental
concessions or any failure to rent the Premises or any part thereof, or for any
failure to collect any rent due upon such re-letting. Upon such re-letting, all
rentals received by Landlord from such re-letting shall be applied: first, to
the payment of any indebtedness (other than any rent due hereunder) from Tenant
to Landlord; second, to the payment of any costs and expenses of such reletting,
including, without limitation, brokerage fees and attorney's fees and costs of
alterations and repairs; third, to the payment of rent and other charges then
due and unpaid hereunder; and the residue, if any shall be held by Landlord to
the extent of and for application in payment of future rent as the same may
become due and payable hereunder. In reletting the Premises as aforesaid,
Landlord may grant rent concessions and Tenant shall not be credited therefore.
If such rentals received from such re-letting shall at any time or from time to
time be less than sufficient to pay to Landlord the entire sums then due from
Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such
deficiency shall, at Landlord's option, be calculated and paid monthly. No such
reletting shall be construed as an election by Landlord to terminate this Lease
unless a written notice of such election has been given to Tenant by Landlord.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for any such previous default provided
same has not been cured; or
v. Without liability to Tenant or any other party and without constituting
a constructive or actual eviction, suspend or discontinue furnishing or
rendering to Tenant any property, material, labor, Utilities or other service,
whether Landlord is obligated to furnish or render the same, so long as Tenant
is in default under this Lease; or
LANDLORD _________ TENANT _________
vi. Allow the Premises to remain unoccupied and collect rent from Tenant
as it comes due; or vii. Foreclose the security interest described herein,
including the immediate taking of possession of all property on or in the
Premises; or
viii. Pursue such other remedies as are available at law or equity.
e. Landlord's pursuit of any remedy of remedies, including without limitation,
any one or more of the remedies stated herein shall not (1) constitute an
election of remedies or preclude pursuit of any other remedy or remedies
provided in this Lease or any other remedy or remedies provided by law or in
equity, separately or concurrently or in any combination, or (2) sever as the
basis for any claim of constructive eviction, or allow Tenant to withhold any
payments under this Lease.
Section 2. LANDLORD'S Self Help. If in the performance or observance of any
agreement or condition in this Lease contained on its part to be performed or
observed and shall not cure such default within thirty (30) days after notice
from Landlord specifying the default (or if such default shall reasonably take
more than thirty (30) days to cure, shall diligently prosecuted the same to
completion), Landlord may, at its option, without waiving any claim for damages
for breach of agreement, at any time thereafter cure such default for the
account of Tenant, and any amount paid or contractual liability incurred by
Landlord in so doing shall be deemed paid or incurred for the account of Tenant
and Tenant agrees to reimburse Landlord therefore and save Landlord harmless
there from. Provided, however, that Landlord may cure any such default as
aforesaid prior to the expiration of said waiting period, without notice to
Tenant if any emergency situation exists, or after notice to Tenant, if the
curing of such default prior to the expiration of said waiting period is
reasonably necessary to protect the Leased Premises or Landlord's interest
therein, or to prevent injury or damage to persons or property. If Tenant shall
fail to reimburse Landlord upon demand for any amount paid for the account of
Tenant hereunder, said amount shall be added to and become due as a part of the
next payment of rent due and shall for all purposes be deemed and treated as
rent hereunder.
Section 3. TENANT'S Self Help. If Landlord shall default in the performance or
observance of any agreement or condition in this Lease contained on its part to
be performed or observed, and if Landlord shall not cure such default within
thirty (30) days after notice from Tenant specifying the default (or, if such
default shall reasonably take more than thirty (30) days to cure, and Landlord
shall not have commenced the same within the thirty (30) days and diligently
prosecuted the same to completion), Tenant may, at its option, without waiving
any claim for damages for breach of agreement, at any time thereafter cure such
default for the account of Landlord and any amount paid or any contractual
liability incurred by Tenant in so doing shall be deemed paid or incurred for
the account of Landlord and Landlord shall reimburse Tenant therefore and save
Tenant harmless there from. Provided, however, that Tenant may cure any such
default as aforesaid prior to the expiration of said waiting period, without
notice to Landlord if an emergency situation exists, or after notice to
Landlord, if the curing of such default prior to the expiration of said waiting
period is reasonably necessary to protect the Leased Premises or Tenant's
interest therein or to prevent injury or damage to persons or property. If
Landlord shall fail to reimburse Tenant upon demand for any amount paid or
liability incurred for the account of Landlord hereunder, said amount or
liability may be deducted by Tenant from the next or any succeeding payments of
rent due hereunder; provided, however, that should said amount or the liability
therefore be disputed by Landlord, Landlord may contest its liability or the
amount thereof, through arbitration or through a declaratory judgment action and
Landlord shall bear the cost of the filing fees therefor.
LANDLORD _________ TENANT _________
ARTICLE XVI - TITLE
Section l. Subordination. Tenant shall, upon the request of Landlord in writing,
subordinate this Lease to the lien of any present or future institutional
mortgage upon the Leased Premises irrespective of the time of execution or the
time of recording of any such mortgage. Provided, however, that as a condition
to such subordination, the holder of any such mortgage shall enter first into a
written agreement with Tenant in form suitable for recording to the effect that:
a. in the event of foreclosure or other action taken under the mortgage by the
holder thereof, this Lease and the rights of Tenant hereunder shall not be
disturbed but shall continue in full force and effect so long as Tenant shall
not be in default hereunder, and b. such holder shall permit insurance proceeds
and condemnation proceeds to be used for any restoration and repair required by
the provisions of Articles XII,XIII or XIV, respectively. Tenant agrees that if
the mortgagee or any person claiming under the mortgagee shall succeed to the
interest of Landlord in this Lease, Tenant will recognize said mortgagee or
person as its Landlord under the terms of this Lease, provided that said
mortgagee or person for the period during which said mortgagee or person
respectively shall be in possession of the Leased Premises and thereafter their
respective successors in interest shall assume all of the obligations of
Landlord hereunder. The word "mortgage", as used herein includes mortgages,
deeds of trust or other similar instruments, and modifications, and extensions
thereof. The term "institutional mortgage" as used in this Article XVI means a
mortgage securing a loan from a bank (commercial or savings) or trust company,
insurance company or pension trust or any other lender institutional in nature
and constituting a lien upon the Leased Premises.
Section 2. Quiet Enjoyment. Landlord covenants and agrees that upon Tenant
paying the rent and observing and performing all of the terms, covenants and
conditions on Tenant's part to be observed and performed hereunder, that Tenant
may peaceably and quietly have, hold, occupy and enjoy the Leased Premises in
accordance with the terms of this Lease without hindrance or molestation from
Landlord or any persons lawfully claiming through Landlord.
Section 3. Zoning and Good Title. Landlord warrants and represents, upon which
warranty and representation Tenant has relied in the execution of this Lease,
that Landlord is the owner of the Leased Premises, in fee simple absolute, free
and clear of all encumbrances, except for the easements, covenants and
restrictions of record as of the date of this Lease. Such exceptions shall not
impede or interfere with the quiet use and enjoyment of the Leased Premises by
Tenant. Landlord further warrants and covenants that this Lease is and shall be
a first lien on the Leased Premises, subject only to any Mortgage to which this
Lease is subordinate or may become subordinate pursuant to an agreement executed
by Tenant, and to such encumbrances as shall be caused by the acts or omissions
of Tenant; that Landlord has full right and lawful authority to execute this
Lease for the term, in the manner, and upon the conditions and provisions herein
contained; that there is no legal impediment to the use of the Leased Premises
as set out herein; that the Leased Premises are not subject to any easements,
restrictions, zoning ordinances or similar governmental regulations which
prevent their use as set out herein; that the Leased Premises presently are
zoned for the use contemplated herein and throughout the term of this lease may
continue to be so used therefor by virtue of said zoning, under the doctrine of
"non-conforming use", or valid and binding decision of appropriate authority,
except, however, that said representation and warranty by Landlord shall not be
applicable in the event that Tenant's act or omission shall invalidate the
application of said zoning, the doctrine of "non-conforming use" or the valid
and binding decision of the appropriate authority. Landlord shall furnish
without expense to Tenant, within thirty (30) days after written request
therefore by Tenant, a title report covering the Leased Premises showing the
condition of title as of the date of such certificate, provided, however, that
Landlord's obligation hereunder shall be limited to the furnishing of only one
such title report.
LANDLORD _________ TENANT _________
Section 4. Licenses. It shall be the Tenant's responsibility to obtain any and
all necessary licenses and the Landlord shall bear no responsibility therefore;
the Tenant shall promptly notify Landlord of the fact that it has obtained the
necessary licenses in order to prevent any delay to Landlord in commencing
construction of the Leased Premises.
ARTICLE XVII - EXTENSIONS/WAIVERS/DISPUTES
Section l. Extension Period. Any extension hereof shall be subject to the
provisions of Article III hereof.
Section 2. Holding Over. In the event that Tenant or anyone claiming under
Tenant shall continue occupancy of the Leased Premises after the expiration of
the term of this Lease or any renewal or extension thereof without any agreement
in writing between Landlord and Tenant with respect thereto, such occupancy
shall not be deemed to extend or renew the term of the Lease, but such occupancy
shall continue as a tenancy at will, from month to month, upon the covenants,
provisions and conditions herein contained. The rental shall be the rental in
effect during the term of this Lease as extended or renewed, prorated and
payable for the period of such occupancy.
Section 3. Waivers. Failure of either party to complain of any act or omission
on the part of the other party, no matter how long the same may continue, shall
not be deemed to be a waiver by said party of any of its rights hereunder. No
waiver by either party at any time, express or implied, of any breach of any
provision of this Lease shall be deemed a waiver of a breach of any other
provision of this Lease or a consent to any subsequent breach of the same or any
other provision. If any action by either party shall require the consent or
approval of the other party, the other party's consent to or approval of such
action on any one occasion shall not be deemed a consent to or approval of said
action on any subsequent occasion or a consent to or approval of any other
action on the same or any subsequent occasion. Any and all rights and remedies
which either party may have under this Lease or by operation of law, either at
law or in equity, upon any breach, shall be distinct, separate and cumulative
and shall not be deemed inconsistent with each other, and no one of them,
whether exercised by said party or not, shall be deemed to be an exclusion of
any other; and any two or more or all of such rights and remedies may be
exercised at the same time.
LANDLORD _________ TENANT _________
Section 4. Disputes. It is agreed that, if at any time a dispute shall arise as
to any amount or sum of money to be paid by one party to the other under the
provisions hereof, the party against whom the obligation to pay the money is
asserted shall have the right to make payment "under protest" and such payment
shall not be regarded as a voluntary payment and there shall survive the right
on the part of the said party to institute suit for the recovery of such sum. If
it shall be adjudged that there was no legal obligation on the part of said
party to pay such sum or any part thereof, said party shall be entitled to
recover such sum or so much thereof as it was not legally required to pay under
the provisions of this Lease. If at any time a dispute shall arise between the
parties hereto as to any work to be performed by either of them under the
provisions hereof, the party against whom the obligation to perform the work is
asserted may perform such work and pay the costs thereof "under protest" and the
performance of such work shall in no event be regarded as a voluntary
performance and shall survive the right on the part of the said party to
institute suit for the recovery of the costs of such work. If it shall be
adjudged that there was no legal obligation on the part of the said party to
perform the same or any part thereof, said party shall be entitled to recover
the costs of such work or the cost of so much thereof as said party was not
legally required to perform under the provisions of this Lease and the amount so
paid by Tenant may be withheld or deducted by Tenant from any rents herein
reserved.
Section 5. TENANT'S Right to cure LANDLORD'S Default. In the event that Landlord
shall fail, refuse or neglect to pay any mortgages, liens or encumbrances, the
judicial sale of which might affect the interest of Tenant hereunder, or shall
fail, refuse or neglect to pay any interest due or payable on any such mortgage,
lien or encumbrance, Tenant may pay said mortgages, liens or encumbrances, or
interest or perform said conditions and charge to Landlord the amount so paid
and withhold and deduct from any rents herein reserved such amounts so paid, and
any excess over and above the amounts of said rents shall be paid by Landlord to
Tenant.
Section 6. Notices. All notices and other communications authorized or required
hereunder shall be in writing and shall be given by mailing the same by
certified mail, return receipt requested, postage prepaid, and any such notice
or other communication shall be deemed to have been given when received by the
party to whom such notice or other communication shall be addressed. If intended
for Landlord the same will be mailed to the address herein above set forth or
such other address as Landlord may hereafter designate by notice to Tenant, and
if intended for Tenant, the same shall be mailed to Tenant at the address herein
above set forth, or such other address or addresses as Tenant may hereafter
designate by notice to Landlord.
LANDLORD _________ TENANT _________
ARTICLE XIII - PROPERTY DAMAGE
Section l. Loss and Damage. Notwithstanding any contrary provisions of this
Lease, Landlord shall not be responsible for any loss of or damage to property
of Tenant or of others located on the Leased Premises, except where caused by
the willful act or omission or negligence of Landlord , or Landlord's agents,
employees or contractors, provided, however, that if Tenant shall notify
Landlord in writing of repairs which are the responsibility of Landlord under
Article VII hereof, and Landlord shall fail to commence and diligently prosecute
to completion said repairs promptly after such notice, and if after the giving
of such notice and the occurrence of such failure, loss of or damage to Tenant's
property shall result from the condition as to which Landlord has been notified,
Landlord shall indemnify and hold harmless Tenant from any loss, cost or expense
arising therefrom.
Section 2. Force Majeure. In the event that Landlord or Tenant shall be delayed
or hindered in or prevented from the performance of any act other than Tenant's
obligation to make payments of rent, additional rent, and other charges required
hereunder, by reason of strikes, lockouts, unavailability of materials, failure
of power, restrictive governmental laws or regulations, riots, insurrections,
the act, failure to act, or default of the other party, war or other reason
beyond its control, then performance of such act shall be excused for the period
of the delay and the period for the performance of such act shall be extended
for a period equivalent to the period of such delay. Notwithstanding the
foregoing, lack of funds shall not be deemed to be a cause beyond control of
either party.
ARTICLE XIX - MISCELLANEOUS
Section 1. Assignment and Subletting. Under the terms and conditions hereunder,
Tenant shall have the absolute right to transfer and assign this lease or to
sublet all or any portion of the Leased Premises or to cease operating Tenant's
business on the Leased Premises provided that at the time of such assignment or
sublease Tenant shall not be in default in the performance and observance of the
obligations imposed upon Tenant hereunder, and in the event that Tenant assigns
or sublets this property for an amount in excess of the rental amount then being
paid, then Landlord shall require as further consideration for the granting of
the right to assign or sublet, a sum equal to fifty (50%) percent of the
difference between the amount of rental to be charged by Tenant to Tenant's
sublessee or assignee and the amount provided for herein, payable in a manner
consistent with the method of payment by the sub lessee or assignee to the
Tenant, and/or fifty (50%) percent of the consideration paid or to be paid to
Tenant by Tenant's sub lessee or assignee. Landlord must consent in writing to
any such sub lessee or assignee, although such consent shall not be unreasonably
withheld. The use of the Leased Premises by such assignee or sub lessee shall be
expressly limited by and to the provisions of this lease.
LANDLORD _________ TENANT _________
Section 2. Fixtures. All personal property, furnishings and equipment presently
and all other trade fixtures installed in or hereafter by or at the expense of
Tenant and all additions and/or improvements, exclusive of structural,
mechanical, electrical, and plumbing, affixed to the Leased Premises and used in
the operation of the Tenant's business made to, in or on the Leased Premises by
and at the expense of Tenant and susceptible of being removed from the Leased
Premises without damage, unless such damage be repaired by Tenant, shall remain
the property of Tenant and Tenant may, but shall not be obligated to, remove the
same or any part thereof at any time or times during the term hereof, provided
that Tenant, at its sole cost and expense, shall make any repairs occasioned by
such removal.
Section 3. Estoppel Certificates. At any time and from time to time, Landlord
and Tenant each agree, upon request in writing from the other, to execute,
acknowledge and deliver to the other or to any person designated by the other a
statement in writing certifying that the Lease is unmodified and is in full
force and effect, or if there have been modifications, that the same is in full
force and effect as modified (stating the modifications), that the other party
is not in default in the performance of its covenants hereunder, or if there
have been such defaults, specifying the same, and the dates to which the rent
and other charges have been paid.
Section 4. Invalidity of Particular Provision. If any term or provision of this
Lease or the application hereof to any person or circumstance shall, to any
extent, be held invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
Section 5. Captions and Definitions of Parties. The captions of the Sections 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. The word
"Landlord" and the pronouns referring thereto, shall mean, where the context so
admits or requires, the persons, firm or corporation named herein as Landlord or
the mortgagee in possession at any time, of the land and building comprising the
Leased Premises. If there is more than one Landlord, the covenants of Landlord
shall be the joint and several obligations of each of them, and if Landlord is a
partnership, the covenants of Landlord shall be the joint and several
obligations of each of the partners and the obligations of the firm. Any pronoun
shall be read in the singular or plural and in such gender as the context may
require. Except as in this Lease otherwise provided, the terms and provisions of
this Lease shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Nothing contained herein shall be
deemed or construed by the parties hereto nor by any third party as creating the
relationship of principal and agent or of partnership or of a joint venture
between the parties hereto, it being understood and agreed that neither any
provision contained herein, nor any acts of the parties hereto, shall be deemed
to create any relationship between the parties hereto other than the
relationship of Landlord and Tenant.
LANDLORD _________ TENANT _________
Section 6. Brokerage. No party has acted as, by or through a broker in the
effectuation of this Agreement, except as set out hereinafter.
Section 7. Entire Agreement. This instrument contains the entire and only
agreement between the parties, and no oral statements or representations or
prior written matter not contained in this instrument shall have any force and
effect. This Lease shall not be modified in any way except by a writing executed
by both parties.
Section 8. Governing Law. All matters pertaining to this agreement (including
its interpretation, application, validity, performance and breach) in whatever
jurisdiction action may be brought, shall be governed by, construed and enforced
in accordance with the laws of the State of ______________. The parties herein
waive trial by jury and agree to submit to the personal jurisdiction and venue
of a court of subject matter jurisdiction located in _____________________
County, State of ______________. In the event that litigation results from or
arises out of this Agreement or the performance thereof, the parties agree to
reimburse the prevailing party's reasonable attorney's fees, court costs, and
all other expenses, whether or not taxable by the court as costs, in addition to
any other relief to which the prevailing party may be entitled. In such event,
no action shall be entertained by said court or any court of competent
jurisdiction if filed more than one year subsequent to the date the cause(s) of
action actually accrued regardless of whether damages were otherwise as of said
time calculable.
Section 9. Contractual Procedures. Unless specifically disallowed by law, should
litigation arise hereunder, service of process therefor may be obtained through
certified mail, return receipt requested; the parties hereto waiving any and all
rights they may have to object to the method by which service was perfected.
Section 10. Extraordinary remedies. To the extent cognizable at law, the parties
hereto, in the event of breach and in addition to any and all other remedies
available thereto, may obtain injunctive relief, regardless of whether the
injured party can demonstrate that no adequate remedy exists at law.
Section 11. Reliance on Financial Statement. Tenant shall furnish concurrently
with the execution of this lease, a financial statement of Tenant prepared by an
accountant. Tenant, both in corporate capacity, if applicable, and individually,
hereby represents and warrants that all the information contained therein is
complete, true, and correct. Tenant understands that Landlord is relying upon
the accuracy of the information contained therein. Should there be found to
exist any inaccuracy within the financial statement which adversely affects
Tenant's financial standing, or should Tenant's financial circumstances
materially change, Landlord may demand, as additional security, an amount equal
to an additional two (2) months' rent, which additional security shall be
subject to all terms and conditions herein, require a fully executed guaranty by
a third party acceptable to Landlord, elect to terminate this Lease, or hold
Tenant personally and individually liable hereunder.
LANDLORD _________ TENANT _________
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and year
first above written or have caused this Lease to be executed by their respective
officers thereunto duly authorized. Signed, sealed and delivered.
By:
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AU Investments
By:
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Al Jinnah for Digital Learning Institute
LANDLORD _________ TENANT _________
EXHIBIT "A"
LEGAL DESCRIPTION
The following described real property, together with all improvements thereon
and which has the street address of: 00000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx
LANDLORD _________ TENANT _________
EXHIBIT "B"
TENANT PLANS AND SPECIFICATIONS
LANDLORD _________ TENANT _________
