PROFESSIONAL OFFICE SPACE
LEASE AGREEMENT
Dated: May 10, 1999
Name of Tenant Interactive Marketing Technology, Inc., a New Jersey
Corporation
Article Subject Page
1 Fundamental Lease Provisions 1
2 Premises 2
3 Term 2
4 Rent 3
5 Security Deposit 7
6 Acceptance 8
7 Use 8
8 Assignment & Subletting 8
9 Alterations, Improvements & Fixtures 10
10 Utilities & Janitorial Services 11
11 Maintenance 12
12 Rights of Landlord 12
13 Liability of Parties 13
14 Insurance 14
15 Destruction or Damage 14
16 Taking by Public Authority 15
17 Use of Building Name 16
18 Subordination & Estoppel Certificate 16
19 Ethics 16
20 Rules & Regulations 16
21 Default 17
22 Payment of Tenant's obligations by Landlord 18
23 Voluntary Surrender or Other Termination 19
24 Abandonment of Personal Property 19
25 Tenancy After Lease Term Expires 19
26 Notices 19
27 Guaranty 19
28 Relocation of Tenant 20
29 Automobile Parking 20
30 Miscellaneous Provision 21
Exhibit A Floor Plan 23
Exhibit B Rules & Regulations 24
Exhibit C Parking 28
Exhibit C-1 Parking Rules & Regulations 29
Guaranty 31
Exhibit E Building Standard Tenant Improvements 37
PROFESSIONAL OFFICE SPACE
LEASE AGREEMENT
This Lease ("Lease") is made and executed this 10th day of May, 1999 , by
and between E.P. Investments a California Limited Partnership ("Landlord"), by
and through COMMERCIAL MANAGEMENT SERVICES as its agent, and Interactive
Marketing Technology, Inc.
("Tenant"), who agree as follows:
1. Fundamental Lease Provisions:
A. Tenant's Trade Name Interactive Marketing Technology
B. Premises: Suite 390/ Third Level consisting of 2,210
Usable square Feet and 2,511 Rentable Square feet. Building:
The Centrum, 0000 Xxxxxxxx Xxxx. Xxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000, consisting of 127,727 Rentable Square Feet.
C. (1) Lease Term: Five (5) Years
(2) Commencement Date: Sept. 15, 1999
(3) Delivery Date: Sept. 15, 1999
D. Minimum Monthly Rent: $ 5,398.65
E. Rent Payable to: E.P. INVESTMENTS
0000 Xxxxxxxx Xxxx, Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx
F. Tenant's Escalation Percentage: 1.966 %
G. Security Deposit: $ 5,398.65
H. Use of Premises: General Office Use
I. Address for Notice:
To Landlord: E.P. INVESTMENTS
0000 Xxxxxxxx Xxxx. Xxxx
Xxx Xxxxxxx, XX 00000
To Tenant: I. M. T
0000 Xxxxxxxx Xxxx. Xxxx #000
Xxx Xxxxxxx, XX 00000
J. Relocation: Tenant may not be relocated XXXXXXXXXXXXXXXXXXXXXX
during the lease term.
2. Premises.
In consideration of the Tenant's agreement to pay the rent, and the
covenants and conditions herein contained, Landlord hereby leases to Tenant
and Tenant hereby hires from Landlord for the lease term or terms hereinafter
provided and upon the terms and conditions set forth herein, that certain real
property identified in fundamental lease provision "B" which is more
specifically described in Exhibit "A" attached hereto and incorporated herein
by this reference ("Premises"), which are located in the office building
described in fundamental lease provision "B" ("Building"). The usable square
feet in the Premises as set forth in fundamental lease provision "B" shall be
determined in accordance with BOMA (Building Owners and Managers Association)
standards, and shall not include common areas and patios ("Usable Square
Feet"). The parties acknowledge that any plans of the Building or Premises
shown to Tenant or attached as Exhibits to this Lease shall not be deemed a
representation by Landlord that the Building or Premises shall be constructed
as indicated thereon. Landlord may exchange such plans in its sole discretion
and, except for an adjustment in rent and other monetary items determined on
the basis of the number of square feet in the Premises or in the Building
pursuant to this Lease, which shall be determined on the basis of the actual
number of square feet in the event the actual number differs from the number
used int establishing the rent or other monetary item at the time of execution
of this Lease, any change in such plans shall not affect the enforceability of
this Lease or any provision hereof.
3. Term.
3.1 In General, Commencement. The term of this Lease is set
forth in fundamental lease provision "C(1)". In the event construction of
Landlord Improvements (as defined in Schedule "A" of the Construction Addendum
to Professional office Space Lease Agreement attached hereto and incorporated
by reference herein, if applicable, ("Construction Addendum")) are complete at
the time of execution of this Lease, the "Commencement Date" shall be the date
set forth in fundamental lease provision "C(2)". In the event construction of
Landlord Improvements is not complete at the time of execution of this Lease,
the Commencement date shall be the date set forth in the Construction
Addendum. The projected date for tender of possession of the Premises to
Tenant shall be the date set forth in fundamental lease provision "C(3)"
("Delivery Date").
3.2 Delay. In the event Landlord is unable to deliver to Tenant
possession of the Premises on the Delivery Date, Landlord shall not be liable
for any damage caused thereby and this Lease shall not be void or voidable,
provided that possession is tendered to Tenant within one hundred eighty (180)
days after the Delivery Date, or, if such failure to tender possession is
caused by circumstances beyond the reasonable control of Landlord, including
in such circumstances strikes, lockouts, fires, floods, acts of God, war,
civil disorder or government regulations, within thirty (30) days plus a
number of days equal to the duration of the delay caused by circumstances
beyond Landlord's reasonable control. Circumstances beyond the reasonable
control of Landlord, however, shall not excuse delay in excess of the actual
delay so occasioned. In the event of late delivery of the Premises, the term
of this Lease shall be extended by the length of such delay in delivering
possession and the liability of Tenant for rent shall be postponed until such
time as Landlord has tendered possession of the Premises to Tenant, In the
event that Landlord has not tendered possession to Tenant within said one
hundred eighty (180) days in addition to any period in which such delay is
excused as set forth herein, this Lease shall be voidable at the option of
either party upon written notice to the other party.
3.3 Early Possession. If Tenant with Landlord's consent takes
possession of the Premises prior to the Commencement Date, other than for
construction of Tenant improvements as provided in the construction Addendum,
Tenant shall be subject to all the covenants and conditions hereof, and shall
pay rent at the monthly rate prescribed for the first month of the term,
prorated on the basis of a thirty (30) day month, for the period beginning
with the taking of possession and ending with the Commencement Date.
3.4 Failure to Take Possession. Tenant's inability or failure
to take possession of the Premises when delivered by Landlord shall not delay
the commencement of this Lease or Tenant's obligation to pay rent.
4. Rent.
4.1 Minimum monthly Rent. Tenant shall pay to Landlord minimum
monthly rent in the amount stated in fundamental lease provision "D" ("Minimum
Monthly Rent"), payable on the first day of each and every calendar month
during the term hereof, commencing on the Commencement Date. If this Lease
shall commence on a day other than the first day of a calendar month, or
terminate on other than the last day of a calendar month, the rent and
Additional Rent as hereinafter defined, payable for the first month in which
the Lease term commences or terminates shall be prorated accordingly. All
rent shall be paid in lawful money of the United States of America without
deduction or offset, prior notice or demand, and it is payable to and at the
address set forth in fundamental lease provision "E".
4.2 Minimum Monthly Rent Adjustment.
4.2.1 The term "lease year", for purposes of the adjustment of
rent, is defined to mean the first full twelve (12) calendar months of the
Lese term as the first lease year, the period between the date of expiration
of the first lease year and December 31 of the calendar year in which it
occurs as the second lease year, and thereafter each successive calendar year
during the term of this Lease.
4.2.2 At the commencement of each lease year, subsequent to the
first lease year, Tenant's minimum monthly rent shall be increased by three
percent (3%).
4.2.5 Adjustments to the rent payable by Tenant made pursuant
to this Section 4.2 shall be in addition to the Additional Rent pursuant to
Section 4.3 hereof.
4.3 Additional Rent.
4.3.1 For purposes of this Section 4.3:
(a) The "Base Year" shall be the calendar year during
which the term of the Lease commences.
(b) "Operating Costs" shall mean the total of all
expenses incurred by Landlord, utilizing the accrual method of accounting, in
connection with the management, operation, maintenance and repair of the
Premises salaries and other labor costs including taxes, insurance, retirement
and other employee benefits incurred with respect to persons employed by
Landlord; (ii) fees, charges and other costs including management fees,
consulting fees, legal fees and accounting fees, of (a) independent
contractors engaged by Landlord; (b) Landlord; or (c) any affiliate of
Landlord, not including any portion of such fees, charges and costs of
Landlord or any affiliate of Landlord in excess of prevailing rates; (iii) the
cost of all utilities (except such costs being paid directly by Tenant
hereunder), fuel, supplies, equipment, maintenance and service contracts in
connection therewith; (iv) the cost of repairs and general contracts in
connection therewith (iv) the cost of repairs and general maintenance of the
Building; (v) all risk insurance, including loss of rental income insurance
and liability insurance, fidelity bonds, and any insurance required under any
loan secured by the property of which the Premises are part; and (vi) such
other expenses as are customarily included in the cost of managing, operating,
maintaining and repairing office buildings similar to the Building.
(c) "Real Property Taxes" shall mean all taxes,
assessments and charges levied upon or with respect to the Building, the land
Taxes shall include, without limitation, any tax, fee or excise on rents, on
the square footage of the Premises, on the act of entering into this Lease, on
the occupancy of Tenant, on account of the rent hereunder of the business of
renting space now or hereafter levied or assessed against Landlord by the
United States of America, the State of California or any political
subdivision, public corporation, district or other political or public entity
and shall also include any other tax, fee or excise, however described, which
may be levied or assessed in lieu of, -as a substitute for, in whole or in
part, or as an addition to, any other Real Property Taxes. Real Property
Taxes shall not include income, franchise, transfer, inheritance or capital
stock taxes, unless such taxes are levied or assessed against Landlord in lieu
of, as a substitute for, in whole or in part, or as an addition to, any other
tax which would otherwise constitute a Real Property Tax. Real Property Taxes
shall also include reasonable legal fees, costs and disbursements incurred in
connection with proceedings for the reduction of such Real Property Taxes.
(d) "Base Year Loan" shall mean any loan or loans
secured by the property of which the Premises are a part prior to the
commencement of this Lease, however, in the event a "take-out" loan or
permanent loan has not been obtained prior to the commencement of this Lease,
the first such loan or loans so obtained shall be deemed to be the Base Year
Loan.
(e) "Increased Interest" shall mean the interest rate
paid in connection with any loan or loans (including the Base Year Loan) and
any refinancing of loans or additional loans secured by the property of which
the Premises are a part in excess of the interest rate charged in connection
with the Base Year Loan at the later of either the Commencement Date or the
date the Base Year Loan was funded, multiplied by the original principal
amount of the Base Year Loan. The "interest rate" for purposes of Increased
Interest shall be deemed to include any points or other fees and charges in
connection with any such loan or loans, amortized over the lesser of ten (10)
years or term of such loan or loans.
(f) "Capital Improvements" shall mean any equipment,
device or other improvement acquired after commencement of the term of this
Lease in the operation, maintenance and repair of the Building excluding
replacement of structural members of the Building.
(g) "Expensed Capital Improvement" shall mean any
Capital Improvement the actual cost of which (individually and not in the
aggregate) is less than Twenty-Five Thousand Dollars ($25,000).
(h) "Capitalized Cost of Capital Improvement" shall
mean an amount determined by multiplying the actual cost of each Capital
Improvement (excluding Expensed Capital Improvements) acquired by Landlord by
the constant annual percentage required to fully amortize such cost over the
useful life of the Capital Improvement (as reasonably estimated by Landlord at
the time of acquisition), including interest at the greater of the maximum
rate at which parties may legally contract at the time of such acquisition or
the rate payable by Landlord if it financed the acquisition.
(i) "Comparison Year" shall mean the calendar year
following the Base Year as the first Comparison Year, and thereafter each
successive calendar year during the term of this Lease and continuing through
any extended term hereof.
(j) Rentable Square Feet of the Building" shall mean
the Usable Square Feet in the Building plus the number of square feet in the
interior common areas of the Building, excluding patios and parking areas.
The Rentable Square Feet of the Building is set forth in fundamental lease
provision "B". "Rentable Square Feet of the Premises" shall meal the Usable
Square Feet of the Premises, plus the number of square feet derived by
multiplying the number of square feet in the interior common area, excluding
patios and parking areas, of the floor on which the Premises are located, by a
fraction, the numerator of which is the Usable Square Feet of the Premises and
the denominator of which is the total Usable Square Feet of the Premises and
the denominator of which is the total Usable Square Feet of the floor on which
the Premises are located. The Rentable Square Feet of the Premises is set
forth in fundamental lease provision "B".
(k) "Tenant's Escalation Percentage" shall be
determined by dividing the total Rentable Square Feet of the Premises by
ninety-five percent (95%) of the total Rentable Square Feet of the Building,
which percentage is set forth in fundamental lease provision "F".
(l) "Additional Rent" shall mean the amount of the
increase in rent payable monthly during any Comparison Year pursuant to
Sections 4.3.2 and 4.3.3.
4.3.2 If in any Comparison Year, Operating Costs or Real
Property Taxes are higher than the Operating Costs or Real Property Taxes for
the Base Year, or there is Increased Interest, the rent payable by Tenant
during such Comparison Year (and any subsequent period until further
adjustment pursuant to this Section 4.3) shall be increased by the amount of
such increase in Operating Costs or Real Property Taxes, or the amount of
Increased Interest, multiplied by Tenant's Escalation Percentage.
4.3.3 In any Comparison year during the term of this Lease
which falls within the useful life of a Capital Improvement, the rent payable
by Tenant for such year shall be increased by the amount of the Capitalized
Cost of the Capital improvement multiplied by Tenant's Escalation Percentage.
In addition to the foregoing, the rent payable by Tenant for each Comparison
Year shall be increased by the actual cost of all Expensed Capital
Improvements incurred by Landlord during such year multiplied by Tenant's
Escalation Percentage.
4.3.4 Prior to the commencement of each comparison Year,
Landlord shall have the right to furnish to Tenant a statement of Landlord's
reasonable estimate of the average monthly Operating Costs, Real Estate Taxes,
Increased Interest to be incurred or expected to be incurred during the
Comparison Year and showing the amount of Additional Rent, if any, payable by
Tenant each month during the Comparison Year pursuant to Sections 4.3.2 and
4.3.3 on the basis of such estimate. Commencing on the first day of the
Comparison Year and continuing on each monthly rent payment date thereafter
until further adjustment pursuant to this Section 4.3.4, Tenant shall pay to
Landlord the amount of the Additional Rent. Landlord shall have the right, in
Landlord's discretion, to reasonably revise its current estimate from time to
time during the Comparison Year to reflect actual or reasonably anticipated
increases in Expensed Capital Improvements, and Increased Interests, and
Tenant's monthly Additional Rent payments shall be further adjusted in
accordance with the revised estimate commencing on the first monthly rent
payment date following Tenant's receipt of such revised estimate. With
reasonable promptness after the expiration of each Comparison Year, Landlord
shall furnish to Tenant a final statement showing the actual Operating Costs,
Real Estate Taxes, Capitalized Cost of Capital Improvements, Expensed Capital
Improvements and Increased Interest for the Comparison Year which has just
ended. On the earlier of ten (10) days after the receipt of said statement by
Tenant or the next monthly rental payment date, Tenant shall, in case of an
underpayment, pay to Landlord an amount equal to such underpayment. Landlord
shall, in case of an overpayment, credit the next monthly rental payment or
payments of Tenant with an amount equal to such overpayment, Notwithstanding
the foregoing, Landlord may elect to require Tenant to pay all Additional Rent
for any Comparison Year upon the expiration thereof. If during the Base year
or any Comparison Year upon the expiration thereof. (95%) of the total
Useable Square Feet in the Building are Leased, the Operating Costs and Real
Property Taxes for such year shall be deemed to be the amount of operating
costs and Real Property Taxes which, based on Landlord's reasonable estimate,
would have been incurred if ninety-five percent (95%) of the Usable Square
Feet of the Building, the Real Property Taxes for the base Year shall be
deemed to be the amount of Real Property Taxes which, based on Landlord's
reasonable estimate, would have been incurred if the Building has been
assessed at its full value.
4.4 Late Charge. Tenant hereby acknowledges that late payment
by Tenant to Landlord of rent, including Additional Rent payable in accordance
with this Section 4.3 hereof and all other costs to be paid by Tenant in
accordance with this Lease, will cause Landlord to incur costs not
contemplated in agreeing to the monetary and other terms of this Lease, the
exact amount of which are presently anticipated to be extremely difficult to
ascertain. Such costs may include processing and accounting charges and late
charges which may be imposes on Landlord by the terms of any mortgage or deed
of trust covering the Property and other expenses of a similar or dissimilar
nature. Accordingly, if an installment of rent, including Additional Rent,
shall not be received by Landlord within five (5) days after such amount shall
be due, Tenant shall pay to Landlord a late charge equal to six percent (6%)
of such overdue amount. The parties hereby agree that such late charge
represents a fair and reasonable estimate of the costs Landlord will incur by
reason of late payment by Tenant. Acceptance of such late charge by Landlord
shall in no event constitute a waiver of Tenants default with respect to such
overdue amount which Tenant acknowledges will have occurred when the payment
is not made at the time it is due, nor shall the acceptance prevent Landlord
from exercising any of the other remedies granted hereunder. By initialing
where indicated below, each of Landlord and Tenant acknowledges its awareness
of and express agreement to the foregoing:
Landlord Tenant
___________________________ _________________________
___________________________ _________________________
In the event an installment of rent or Additional Rent is not paid
within thirty (30) days after such installment is due, the amount unpaid shall
bear interest at the maximum rate at which the parties may legally contract
commencing upon the thirty-first (31st) day after such installment is due.
5. Security Deposit.
5.1 In General. Upon execution of this Lease, Tenant shall
deposit with Landlord the sum specified in fundamental lease provision "G"
which sum shall be held by Landlord as security ("Security Deposit"). The
purpose for which all or any portion of the Security Deposit may be used by
Landlord in its discretion, are (a) to remedy any defaults by Tenant in the
payment of rent or any other sum payable by Tenant, (b) to repair damages to
the Premises caused by Tenant, and (c) to otherwise be used to remedy any
default by Tenant in the performance of all of the provisions, covenants and
conditions of this Lease to be kept and performed by Tenant during the term
hereof, during any extension thereof, or during the period subsequent to the
execution of this Lease but prior to the Commencement Date.
5.2 Method of Application. If at any time during the term of
this Lease, Tenant defaults in the payment of rent or other sums payable by
it, causes damage to the Premises, or otherwise fails to keep and perform all
of the provisions, covenants and conditions of this Lease to be kept and
performed by Tenant ("Tenant Breaches"), Landlord at its option, may;
(a) Utilize all or any part of the Security Deposit for
payment of any cost, expenses or damages incurred or sustained by Landlord or
for payment of rent or other sums which may be due or which may be payable by
the Tenant as a result of the Tenant Breaches (but Landlord shall not be
required to do so); or
(b) Retain the Security Deposit, or any part thereof, until
this Lease is terminated, and at such time utilize said sum or so much thereof
as may be necessary to compensate Landlord for all costs, expenses or, damages
incurred or sustained by Landlord as a result of the Tenant Breaches or for
any unpaid rent due from Tenant.
If Landlord elects to exercise the option described in
subsection (a) above, Tenant shall, within ten (10) days after written demand
therefor, deposit cash with Landlord in an amount sufficient to restore the
Security Deposit to its original amount The parties agree that the provisions
of this Section 5 shall not operate as a limitation upon the amount of damage
to which Landlord is entitled by virtue of any default by Tenant or failure by
Tenant to perform all of the provisions, covenants and conditions of this
Lease.
5.3 Extent of Landlord's Obligations. Any remaining portion of
the Security Deposit shall be returned within two (2) weeks of the termination
of this Lease. Landlord shall not be required to pay Tenant interest on the
Security Deposit. Landlord's obligations with respect to the Security Deposit
are those of a debtor and not trustee. Landlord shall have the right to
commingle the Security Deposit with Landlord's general and other funds.
5.4 Security Interest. To secure the performance by Tenant
of all Tenant's obligations under this Lease, Tenant hereby grants to Landlord
a security interest in all equipment, furniture and other goods now owned
hereafter acquired by Tenant which are used or located on the Premises. Upon
request by Landlord, Tenant shall execute such financing statements,
continuation statements and amendments as Landlord may request.
6. Acceptance.
Tenant's taking possession of the Premises shall be a conclusive
acknowledgment on Tenant's part that the Premises are in good and tenantable
condition. Upon the termination of this Lease, Tenant shall deliver the
Premises to Landlord in the condition in which the Premises existed at the
commencement of the term hereof, subject to the provisions of Section 9
hereof, reasonable wear and tear excepted.
7. Use.
7.1 In General. The Premises shall be used only for the
purposes set forth in fundamental lease provision "H". Tenant shall not use
the Premises for any other purpose without the prior written consent of
Landlord. Tenant's use of the Premises shall comply with all applicable
federal, state and municipal laws, ordinances, and regulations. Tenant shall
not use the Premises in any manner that constitutes waste, nuisance, or
unreasonable disturbances to other teats of the Building. Tenant shall not
use the Premises for cooking, sleeping or lodging.
7.2 Effect on Insurance. Tenant shall not perform or permit any
act that is reasonably likely to cause cancellation of any insurance covering
the Premises or the Building, or an increase in the premium rates for such
insurance. In the event that Tenant performs or commits any act the effect of
which is to raise the premium rates for such insurance, Tenant shall pay the
Landlord the amount of the additional premium.
7.3 Suitability of Premises.
By execution of this Lease, Tenant acknowledges that it has
determined, by its inspection and investigation of the Premises and not as a
result of any representation made by Landlord or Landlord's agent, that the
Premises are suitable for its intended use, as set forth in fundamental lease
provision "H". Without limiting the generality of the foregoing, Tenant
acknowledges that it has determined that the Premises (including, without
limitation, the electrical supply and air conditioning) are suitable for any
computers or other equipment which Tenant may use in the Premises. Tenant
agrees that in the event that the Premises are not suitable for it's intended
use or for it's computers or other equipment, Landlord shall not have any
responsibility therefor and Tenant shall not be excused from it's obligations
hereunder by reason thereof.
8. Assignment and Subletting.
8.1 Restriction. Tenant shall not assign, transfer, mortgage,
pledge, hypothecate or encumber this Lease, or any interest therein, and shall
not sublet the Premises or any part thereof, or any right or privilege
appurtenant thereto, or suffer any other person (the invitees, agents and
servants of the Tenant excepted) to occupy or use the Premises, or any portion
thereof, or agree to any of the foregoing, without in each case first
obtaining the written consent of Landlord, which consent shall not be
unreasonably withheld. Furthermore, neither this Lease nor any interest
therein shall be assignable as to the interest of Tenant by operation or law,
without the written consent of Landlord. Any such assignment, transfer,
encumbrance, sublease or occupation of, or use of the Premises by any other
person without such consent shall be void. Any consent to any assignment,
transfer, encumbrance, sublease or occupation or use of the Premises by any
other person which may be given by Landlord shall not constitute a waiver by
Landlord of the provisions of this Section 8 or a release of Tenant from the
full performance by it of the covenants herein contained.
8.2 Procedure. If Tenant desires at any time to assign this
Lease or sublet all or any portion of the Premises, Tenant shall first notify
Landlord of its desire to do so and shall submit in writing to Landlord (a)
the name of the proposed sub-tenant or assignee, (b) the nature of the
proposed sub-tenant's or assignees business to be carried on in the Premises,
(c) the terms and conditions of the proposed sublease or assignment and (d)
such financial information as Landlord may reasonably request concerning the
proposed sub-tenant or assignee. At any time within thirty (30) days after
Landlord's receipt of the information specified above, Landlord may by written
notice to Tenant elect to (i) if Tenant desires to sublease, cause the
Premises to be subleased to the Landlord itself, (ii) if Tenant desires to
assign, take an assignment of the Lease itself, (iii) consent to the sublease
or assignment, (iv) consent to the sublease on the condition that Tenant pay
to Landlord the excess of the rental, however characterized, payable by the
subtenant over the rental payable for the subleased portion of the Premises by
Tenant hereunder; or (v) disapprove of the sublease or assignment. In the
event Landlord elects to sublease from Tenant as described in (i) above, the
rent payable by Landlord shall be the lower of that set forth in Tenant's
notice or the rent payable by Tenant under this Lease for the Usable Square
Feet of the Premises sublet at the time of the sublease. If Landlord consents
to the sublease or assignment within the xxxxxx (30) day period, Tenant may
thereafter within sixty (60) days after Landlord's consent, but not later than
the expiration of said sixty (60) days, enter into such assignment or sublease
of the Premises or a portion thereof upon the terms and conditions set forth
in the information furnished by Tenant to landlord. Landlord's consent to one
assignment or sublease shall not be deemed to be a consent to any subsequent
assignment or sublease or use of the Premises by any other person.
8.3 Effect. Each permitted assignee, transferee or, sublessee,
other than Landlord, shall assume and be deemed to have assumed this Lease and
shall be and remain liable jointly and severally with Tenant for the payment
of the rent and for the due performance or satisfaction of all of the
provisions, covenants, conditions and agreements herein contained on Tenant's
part to be performed or satisfied. No permitted assignment shall be binding
on Landlord unless such assignee or Tenant shall deliver to landlord a
counterpart of such assignment and an instrument in recordable from which
contains a covenant of assumption by the assignee, but the failure or refusal
of the assignee to execute such instrument of assumption shall not release or
discharge the assignee from its liability as set forth above.
8.4 Partnership Tenant. If Tenant is a partnership, a transfer
of any interest of a general partner, a withdraws of any general partner from
the partnership, or the dissolution of the partnership, shall be deemed to be
an assignment of this Lease.
8.5 Corporate Tenant If Tenant is a corporation, any
dissolution, merger or other reorganization of Tenant or sale or other
transfer of a percentage of capital stock of Tenant which results in a change
of controlling persons, or the sale or other transfer of substantially all of
the assets of Tenant, shall be deemed to be an assignment of this Lease.
9. Alterations, Improvements and Fixtures.
9.1 In General. Tenant shall not make or allow any alterations,
additions or improvements to the Premises or any part thereof without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld provided that such alterations, additions or improvements do not
affect the structure of the Building, any area outside of the Premises or any
other tenants in the Building.
9.2 Conditional Consent. Landlord may impose as a condition to
consent such requirements as Landlord in its sole discretion may deem
necessary or desirable, including without limitation, the right to approve the
plans and specifications for any work, the right to require security for the
full payment of the costs of any work and the right to impose requirements as
to the manner in which or the time or times at which work may be performed.
Even without any express reservation of right or imposition of conditions,
Landlord shall have the right to approve the contractor or contractors who
shall perform any alterations, repairs, additions or improvements in, to or
about the Premises and to post notices of non-responsibility and similar
notices which it deems to be appropriate.
9.3 Work; Liens. Tenant shall cause all work performed on the
Premises to be performed in a first-class, workmanlike manner and in
compliance with all applicable federal, state and municipal laws, ordinances
and regulations. Tenant shall keep the Premises free from any liens arising
out of any work performed on, or material furnished to, the Premises, or
arising from any other obligation incurred by Tenant. Tenant shall be
obligated to, and Landlord reserves the right to, post and maintain on the
Premises at any time such notices as shall in the reasonable judgement of
Landlord be necessary to protect Landlord against liability for all such liens
or actions. Tenant shall indemnify and hold harmless Landlord and the
Premises from all loss, costs, expenses and liability in connection with any
such lien or the performance of such work or the furnishing of such materials,
or any failure by Tenant to comply with the provisionsof this Section 9. The
foregoing indemnity shall survive the prior expiration or termination of this
lease.
9.4 Title to Improvements, Removal. Any alterations,
additions or improvements of any kind to the Premises or any part thereof,
except Tenant's furniture, counters, appliances, shelving and movable trade
fixtures, shall at once become part of the realty and belong to Landlord and
shall be surrendered with the Premises, as a part thereof, at the end of the
term hereof; provided however, that Landlord may, by written notice to Tenant,
require Tenant to remove any alterations, additions, fixtures or other
improvements made by Tenant, and to repair any damage to the Premises caused
by such removal, all at Tenant's sole expense. Any articles of personal
property, including business and trade fixtures, not attached to or build into
the Premises, which were installed by Tenant at its sole expense, shall be and
remain the property of the Tenant and may be removed by Tenant at any time
during the term of this Lease as long as Tenant is not in default hereunder
and provided that Tenant repairs any damage to the Premises or the Building
caused by such removal. The rent payable pursuant to Section 4 hereof and all
other costs payable by Tenant pursuant to this Lease shall constitute to be
payable by Tenant as set forth herein so long as any repair or restoration is
not completed to the reasonable satisfaction of Landlord, regardless of prior
expiration or termination of this Lease.
10. Utilities and Janitorial services.
10.1 Landlord. Subject to Tenant's timely payment of the rent
specified in Section 4 and provided that Tenant is not otherwise in default
hereunder, Landlord shall furnish to the Premises water, heat, air
conditioning and electricity required in Landlord's judgement for the
comfortable use and occupancy of the Premises, together with janitorial
services, during the time set forth in the Rules and Regulations promulgated
from time to time by Landlord with respect to the Building ("Rules and
Regulations"). The costs and expenses incurred by Landlord with respect to
utilities and janitorial services shall be deemed to be Operating Costs as
defined in Section 4.3.1(b) hereof.
10.2 Tenant. Tenant shall pay prior to delinquency, all charges
for materials, services and utilities not expressly required to be paid by
Landlord by the terms of this Lease, which may be furnished or used in, on or
about the Premises during the term hereof
10.3 No Unauthorized Use. Tenant, without the prior written
consent of Landlord shall not use any apparatus or device in the Premises,
including without limitation, electronic data processing machines, punch chard
machines and machines using current in excess of 110 volts which will in any
way increase the amount of electricity, air conditioning, heat or water which
would otherwise be furnished or supplied under this Section 10 for the
intended use of the Premises; and Tenant will not connect with electric
current, except through existing electrical outlets in the Premises, or water
pipes, any apparatus or device which uses electric current or water.
10.4 Excess and Additional Use. If Tenant shall require
water, electricity, heating or cooling in excess of that which would otherwise
be furnished or supplied for the intended use of the Premises, Tenant shall
first secure the written consent of Landlord for the use thereof, which
consent Landlord may refuse in its absolute discretion. Landlord may impose a
reasonable charge for such excess use. Landlord may cause a water meter or
electric current meter to be installed in the Premises, so as to measure the
amount of water and electric current consumed for any such excess use. The
cost of such meters and installation, maintenance and repair thereof, the cost
of any such excess utility use as shown by the meter or a otherwise reasonably
determined by Landlord, the cost of any new or additional utility
installations, including but not limited to wiring and plumbing, resulting
from such excess utility use, shall be at the expense of and paid by Tenant
promptly upon demand by Landlord. Whenever heat generating machines or
equipment are used in the Premises which affect the temperature otherwise
maintained by the air conditioning, system, Landlord reserves the right to
install supplementary air conditioning units in the Premises. The cost
thereof, including the cost of installation, operation and maintenance, shall
be paid by Tenant to Landlord upon demand by landlord. If suitable
temperatures can be maintained by the existing air conditioning system, the
cost of any excess use thereof as reasonably determined by Landlord shall be
paid to landlord upon demand. Landlord may impose a reasonable additional
charge for the usage of any additional or unusual janitorial services required
because of any non-building standard improvements in the Premises, the
carelessness of Tenant, the nature of Tenant's business and the removal of any
refuse and rubbish from the Premises except for discarded material placed in
wastepaper baskets and left for emptying as an incident to Tenant's normal
cleaning of the Premises. Any amounts to be paid by Tenant under this Section
10.4 shall be paid in advance unless otherwise agreed to in writing by
Landlord.
10.5 Failure to Provide. Landlord shall not be liable for any
failure to furnish any utilities or janitorial services when such failure is
caused by accidents, breakage, repairs, strikes, lockouts, other labor
disputes or any other conditions beyond Landlord's reasonable control,
including but not limited to any governmental energy conservation program, and
Tenant shall not be entitled to any damages nor shall such failure relieve
Tenant of the obligation to pay the full rent or constitute a constructive or
other eviction of Tenant. In the event any governmental entity imposes
mandatory or involuntary controls or guidelines on Landlord or the Building or
any part thereof, relating to the use or conservation of energy, water, gas,
oil or electricity or in the event Landlord is required to make alterations to
the Building in order to comply with mandatory or voluntary control or
guidelines, Landlord may, in its sole discretion, comply with such mandatory
or voluntary controls or guidelines or make such alterations to the Building.
Such compliance in the making of such alterations shall in no event entitle
Tenant to any damages, release Tenant from the obligation to pay the full rent
or constitute a constructive or other eviction of Tenant. In addition, any
such alteration shall be deemed to be Capital Improvements as defined in
Section 4.3 of this Lease.
11. Maintenance.
During the period of Tenant's occupancy, Tenant at its sole
cost and expense agrees to maintain the Premises in condition appropriate for
high shall commercial office space. Maintenance shall include cleaning (other
than the standard cleaning provided by Landlord's janitorial service pursuant
to Section 10.1 hereof) repair and replacement of any and all improvements,
fixtures, equipment and decorations within or on the area measured in
determining the Usable Square Feet of the Premises.
12. Rights of Landlord.
12.1 Reservation of Rights. The Landlord reserves the
following rights:
(a) To change the name of the Building without notice
or liability to the Tenant and to enjoy the exclusive use of such name;
(b) To place signs on the Building;
(c) To designate all sources furnishing graphics, sign
painting or lettering, vending machines of any kind and toilet supplies used
on the Premises and to restrict access to the Building by any vendors or
suppliers who cause damage to, or interfere with the peaceful use of, the
Building;
(d To have pass keys to the Premises and computer
access cards for the elevators, parking area and Premises;
(e) To grant to anyone the exclusive right to conduct
any particular business or undertaking in the Building; and
(f) To enter the Premises at any reasonable time for
inspection, to supply any service to be provided by Landlord hereunder, to
submit the Premises to prospective purchasers or tenants, to post notices of
non-responsibility, to affix and display "For Rent" signs, and to make
repairs, alterations, additions or improvements to the Premises or the
Building.
12.2 Common Areas. Without limiting the generality of the
provisions of Section 12.1. Landlord shall have the right to remove, alter,
improve or rebuild the public areas of the Building. In connection with
making repairs, alterations, additions or improvements under the terms of
Section 12, the Landlord shall have the right of access through the Premises
as well as the right to take into and upon and through such Premises or any
other part of the Building, all materials that may be required to make such
repairs, alterations, additions or improvements, and the right in the course
of such work to close, entrances, doors, corridors, elevators or other
Building facilities or temporarily to xxxxx the operations of such facilities
without such acts being deemed to be or to cause a constructive or other
eviction of Tenant, so long as the business of Tenant shall not be interfered
with unreasonably.
12.3 Release. Provided that Landlord exercises any right
set forth in this Section 12 in good faith, Landlords shall not be liable to
Tenant for any expense, injury, loss or damage resulting from such exercise,
all claims against the Landlord for any and all such liability being hereby
expressly released by Tenant; Landlord shall be without liability for damages
to Tenant's property business or person and without liability to Tenant by
reason of interference with the business of Tenant or inconvenience or
annoyance to Tenant or the customers of Tenant; the rent reserved herein shall
not xxxxx while the Landlord's rights under this Section 12 are exercised, and
Tenant shall not be entitled to any set-off or counterclaim for damages of any
kind against Landlord by reason thereof, all such claims being hereby
expressly released by Tenant.
12.4 Emergency Entry. Landlord shall have the right to use any
and all means which Landlord may deem proper to open any of the doors in,
upon, and about the Premises, excluding Tenant's vaults and safes, in any
emergency in order to obtain entry to the Premises. Any entry to the Premises
obtained by Landlord by any of said means shall not be construed or deemed to
be a forcible or unlawful entry into, or a detainer of, the Premises, or an
eviction of Tenant from the Premises or any portion thereof.
13. Liability of Parties
13.1 Release of Landlord. Landlord shall not be liable to
Tenant and Tenant hereby waives all claims against Landlord for any entry into
the Premises, or for damage to any person or property in or about the Premises
or the approaches, entrances, streets, sidewalks or corridors thereto, by or
from any cause whatsoever, including without limitation, damage caused by any
defect in the Building or Premises, or by water leakage of any character from
the roof, walls, basement or other portion of the Premises or the Building, or
caused by gas, fire, oil, electricity or any cause whatsoever in, on, or about
the Premises or the building or any part thereof. Tenant shall immediately
notify Landlord in writing of any defective condition in or about the
Premises, Landlord shall not be liable and Tenant hereby waives all claims for
damages that may be caused by Landlord in re-entering and taking possession of
the Premises as herein provided.
13.2 No Liability for Third Party Unauthorized or Criminal Acts.
Landlord shall not be liable to Tenant, and Tenant hereby waived any claim
against Landlord for any unauthorized entry into the Premises, or for damage
to any person or property in or about the Premises or the approaches,
entrances, streets, sidewalks or corridors thereto, by or from any
unauthorized or criminal acts of third parties, regardless of any breakdown,
malfunction or insufficiency of the security measures, practices or equipment
provided by Landlord. Tenant shall immediately notify Landlord in writing of
any breakdown or malfunction of the security measures, practices or equipment
provided by Landlord as to which Tenant has knowledge.
13.3 Indemnity. Tenant shall indemnify and hold Landlord
harmless from and defend Landlord with counsel satisfactory to Landlord
against any and all claims or liabilities for any injury or damage to any
person or property whatsoever, occurring in, on or about the Premises or any
part thereof, or occurring in, on or about any facilities (including, without
limitation, elevators, stairways, passageways or hallways), the use of which
Tenant may have in conjunction with other tenants of the Building, when such
injury or damage shall be caused in part or in whole by the neglect, fault or
omission of any duty with respect to the same by Tenant, its agents, servants,
employees or invitees.
14. Insurance.
14.1 Liability Insurance. Tenant shall maintain, at all
times during the term hereof and at its cost, Workmen's Compensation Insurance
and Bodily Injury Liability and Property Damage Liability Insurance adequate
to protect Landlord and Landlord's managing agents against liability for
injury to or death of any such person in connection with the use, operation or
condition of the Premises. Such insurance at all times shall be in an amount
of not less than One Million Dollars ($1,000,000.00) for injuries to persons
in one accident, not less than Five Hundred Thousand Dollars ($500,000.00) for
injuries to persons in one accident, not less than Five Hundred Thousand
($500,000.00) with respect to damage to property. Not more frequently than
once each two (2) years, if, in the opinion of Landlord, the minimum required
amount of public liability and property damage insurance coverage at that time
is not adequate, Tenant shall increase the insurance coverage as required by
Landlord.
14.2 Personal Property. Tenant shall at all times during the
term hereof maintain in effect policies of insurance covering its leasehold
improvements (including any alterations, additions or improvements as may be
made by Tenant), trade fixtures, merchandise and other personal property from
time to time in or on the Premises, in an amount not less than one hundred
percent (100%) of their actual replacement cost, providing protection against
all risks covered by standard form of "Fire and Extended Coverage Insurance",
together with insurance against vandalism and malicious mischief. Tenant
shall also maintain business interruption insurance at Tenant's sole cost and
expense.
14.3 In General. All insurance required to be carried by
Tenant shall be issued by responsible insurance companies, qualified to do
business in the State of California and reasonably acceptable to Landlord.
Each policy shall name Landlord and Commercial Management Services, Inc., as
it's agent as additional insureds and copies of all policies or certificates
evidencing the existence and amounts of said insurance shall be delivered to
Landlord by Tenant upon request. If Tenant fails to adhere to the requirements
of this Section 14, Landlord may but shall not be required to order such
insurance and charge the cost thereof to Tenant, which amount shall be payable
by Tenant upon demand. Any policy may be carried under so-called "blanket
coverage" form of insurance policies, provided, however, that Landlord shall
be named as an additional insured thereunder as its interest may appear and
that the coverage afforded Landlord will not be reduced or diminished by
reason of such blanket policy of insurance (with an endorsement to that effect
provided to landlord) and provided further that the requirements set forth
herein are otherwise satisfied. The obligations of Tenant under this Lease
shall continue in full force and effect notwithstanding (1) any failure if
Tenant fails to maintain an insurance policy required to be maintained by it
under this Lease, or (2) in the event that Tenant, with Landlord's prior
written consent, elects to self insure in lieu of maintaining an insurance
policy required under this Lease.
14.4 Waiver of Lability, Subrogation. Landlord and Tenant each
hereby waive any and all rights of recovery against the officers, employees,
agents and representatives of such other party for loss of or damage to such
waiving party or its property or the property of others under its control,
arising from any cause insured against under any policy of insurance required
to be carried by such waiving party. Tenant shall obtain and furnish to
Landlord evidence of the waiver by Tenant's insurance carriers of any right of
subrogation against Landlord.
15. Destruction or Damage.
15.1 Landlord Repairs. In the event the Premises or the
Building are damaged or destroyed by fire or other casualty covered by
insurance, Landlord shall repair such damage subject to the limitations
contained in this Section 15, provided that if said damage was caused by the
fault or neglect of Tenant, any costs of repair in excess of the insurance
proceeds available to Landlord for such repair shall be paid by Tenant.
Landlord shall not be obligated to proceed with any such repairs until Tenant
has deposited with Landlord its share of the cost of repair.
15.2 Effect. Notwithstanding any destruction or damage, this
Lease shall remain in full force and effect and Tenant shall continue to pay
the rent and all other costs payable by Tenant hereunder. The provisions of
Section 1932 and 1933, Subdivision 4 of the California Civil Code, any
amendments thereto and any other law which may hereinafter become in force
during the term of this lease which authorizes the termination of the Lease
upon the partial or complete destruction of the Premises are hereby waived by
Tenant.
15.3 Option to Terminate. Notwithstanding anything to the
contrary contained in sections 15.1 and 15.2 above, if the Premises or the
Building are damaged or destroyed and (a) the repair or restoration thereof,
in Landlord's opinion, cannot be completed within ninety (90) days of
commencement of repair or restoration; or (b) the repair or restoration is not
covered by insurance, or the estimated cost thereof exceeds the insurance
proceeds available for repair or restoration plus any amount which Tenant is
obligated or elects to pay for such repair or restoration; or (c) the
estimated cost of repair or restoration exceeds twenty five percent (25%) of
the full replacement cost of the Premises or the Building; or (d) Landlord
determines to rebuild the Premises or the Building in a substantially
different structural or architectural form than existed before the damage or
destruction, Landlord shall have the option to either terminate this Lease or
to repair or restore the Premises or the Building. In the event that Landlord
elects to terminate this Lease, the Landlord shall give notice to Tenant any
time within sixty (60) days after such damage, terminating this Lease as of
the date specified in such notice, which date shall not be less than thirty
(30) nor more than sixty (60) days after the giving of such notice. In the
event such notice is given, this Lease shall expire and all interest of Tenant
in the Premises shall terminate on the date specified in the notice and the
rent shall be paid up to the date of termination. Landlord shall refund to
Tenant the rent theretofore paid for any period of time subsequent to such
date.
15.4 Extent of Restoration. In the event Landlord is obligated
to, or elects to, repair or restore the Premises, Landlord shall be obligated
to repair or restore only such portions of the subject Premises which were
originally provided by Landlord at Landlord's expense, not including those
portions for which Landlord provided Tenant an improvement allowance. The
repair and restoration of any of Tenant's improvements or any property of
Tenant which was not provided at Landlord's expense, including tenant
improvements for which Landlord provided Tenant an improvement allowance,
shall be the obligation of Tenant. In no event shall Tenant be entitled to
any compensation for damage or loss of the use of all or any part of the
Premises or any inconvenience or annoyance occasioned by any such damage,
destruction, repair or restoration.
16. Taking By Public Authority.
If all or any part of the Premises or the Building shall be taken or
appropriated by any public or quasi-public authority under the power of
eminent domain, or transferred in avoidance of such taking or appropriation,
Landlord shall have the right, at its option, to terminate this Lease, and
shall have the right to receive any award or payment made in connection with
such public or quasi-public use or purpose, and Tenant shall have no claim
against Landlord for the value of any unexpired term of this Lease. If a part
of the Premises shall be so taken or appropriated and Landlord does not elect
to terminate this Lease, the rental thereafter to be paid shall be reduced in
an amount which Landlord reasonably deems to be equitable, taking into
consideration the relative value of the portion taken as compared to the
portion remaining.
17. Use of Building Name.
Tenant shall not be allowed to use the name of the Building in which
the Premises are located, or words to the same effect (except as Tenant's
address), in connection with any business carried on in the Premises without
the written consent of Landlord.
18. Subordination and Estoppel of Certificates.
18.1 Subordination. This Lease shall be or automatically
become subject and subordinate at all times to all ground or underlying leases
which now exist or may hereafter be executed affecting the Building or any
part thereof, and to the lien of any mortgages or deeds of trust in any amount
or amounts whatsoever now or hereafter placed on or against the Building or
any part thereof or on or against Landlord's interest or estate therein or on
or against any ground or underlying lease without the necessity of having
further instruments executed by Tenant to effectuate such subordination or of
paying additional consideration therefor. Upon the request of Landlord,
Tenant will execute any further written instrument necessary to subordinate or
to provide evidence of the subordination of its rights hereunder to any such
underlying leases or liens. In the event of termination of any such
underlying lease or foreclosure of any such mortgage or deed of trust, Tenant
shall, at the request of the successor in interest to Landlord, attorn to such
successor in interest, and at the request of such successor in interest enter
into an new lease for the balance of the term hereof then remaining on the
same terms and conditions as are contained in this Lease.
18.2 Estoppel Certificates. Tenant agrees, at any time, and
from time to time, upon not less than fifteen (15) days prior notice by
Landlord, to execute, acknowledge and deliver to Landlord, a statement in
writing certifying that this Lease is unmodified and in full force and effect
(or if there have been modifications, that the same is in full force and
effect as modified and stating the modifications), and the dates to which the
rent, Additional Rent and other charges have been paid, and stating whether or
not to the best knowledge of the signer of such certificate, Landlord is in
default in performance of any covenant, agreement, term, provision or
condition contained in this Lease and, if so, specifying each such default of
which the signer may have knowledge, it being intended that any such statement
delivered pursuant hereto may be relied upon by any prospective purchaser or
lessee of the Building or any part thereof, any mortgagee or prospective
mortgagee thereof, any prospective assignee of any mortgage thereof or any
other party who may reasonably rely on the statement. Tenant also agrees to
execute and deliver from time to time such estoppel certificates as any
institutional lender or other third party may require or request with respect
to this Lease.
19. Ethics.
If the Tenant is a member of any profession, he agrees to abide by
the code of ethics of the association recognized as representing that
particular profession in the County of Los Angeles, the State of California.
20. Rules and Regulations.
Tenant shall faithfully observe and comply with the Rules and
Regulations set forth in Exhibit "B" which is attached hereto and by this
reference incorporated herein. The Rules and Regulations may be amended or
modified at any time within the sole discretion of Landlord, in which event
Landlord shall provide to Tenant a copy of the Rules and Regulations as
amended or modified. Landlord shall not be responsible to Tenant for the
nonperformance or nonobservance by any other tenant or occupant of the
Building of any of the Rules and Regulations.
21. Default
21.1 Events of Default. Any of the following events shall
constitute a default under this Lease by Tenant:
(a) Failure by Tenant to make any payment of rent or other
payment required by this Lease when the same is due;
(b) Failure by Tenant to accept possession of the Premises
upon tender thereof by Landlord or other acts by TenAnt which give the
Landlord cause to reasonably believe that Tenant will not accept possession of
the Premises when tendered by Landlord and commence payment of rent;
(c) The vacating or abandoning of the Premises by Tenant;
(d) Any attempted conveyance, assignment, mortgage or
subletting of this Lease or of the Premises of any part thereof, or agreement
to do, permit or suffer any of the same, without the prior written consent of
Landlord;
(e) The making by Tenant of any general arrangement for the
benefit of creditors; the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt or a petition for reorganization or arrangement
under any law relating to bankruptcy (unless, in the case of a petition filed
against Tenant, the same is dismissed within sixty (60) days; the appointment
of a trustee or receiver to take possession of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease unless
possession is restored to Tenant within thirty (30) days; or the attachment,
execution or other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where such
seizure is not discharged within thirty (30) days;
(f) The failure by Tenant to observe or perform any
covenant, condition, or provision in this lease not already specifically
mentioned in this Section 21.1, where such failure continues for thirty (30)
days after written notice from Landlord notifying Tenant of such failure;
provided, however, that if the nature of Tenant's failure is such that more
than thirty (30) days are reasonably required for its cure, then Tenant shall
not be in default if it begins such cure within the thirty (30) day period
described above and thereafter diligently prosecutes such cure to completion.
21.2 Remedies. In the event of any default by Tenant,
Landlord may promptly or at any time thereafter, upon notice and demand and
without limiting Landlord in the exercise of any other right or remedy which
Landlord may have by reason of such default or breach:
(a) Terminate Tenant's right to possession of the Premises
by any lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event,
Landlord shall be entitled to recover from Tenant:
(i) The worth at the time of award of the unpaid rent
which has been earned at the time of termination;
(ii) The worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination
until the time of the award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided;
(iii) The worth at the time of award of the amount by
which the unpaid rent for the balance of the term after the time of award
exceeds the amount of such rental loss the Tenant proves could reasonably
be avoided; and
(iv) Any other amount necessary to compensate Landlord
for all detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom, including, but not limited to, the
cost of recovering possession of the Premises, expenses of reletting
(including advertising), brokerage commissions and fees, costs of putting the
Premises in good order, condition and repair, including necessary
renovation and alteration of the Premises, reasonable attorney's fees,
court costs, all costs for maintaining the Premises, all costs incurred
in the appointment of and performance by a receiver to protect the Premises
or Landlord's interest under the Lease, and any other reasonable cost.
The "worth at the time of award" of the amounts referred to in
subsections (i) and (ii) above shall be computed by allowing interest at the
legal rate. The worth at the time of aware" of the amount referred to in
subsection (iii) above shall be computed by discounting such amount at one (1)
percentage point above the discount rate of the Federal Reserve Bank of San
Francisco at the time of award.
(b) Pursue any other remedy now or hereafter available to
Landlord under the laws or judicial decisions of the State of California,
including, without limitation, the remedy provided in California Civil Code
Section 1951.4, and laws amendatory to said Section, to continue this Lease in
effect and enforce all rights and remedies under the Lease, including the
right to recover rent as it becomes due, even though the Tenant has breached
the Lease and abandoned the Premises or failed to take possession of the
Premises upon tender thereof by Landlord. In the event Tenant fails to take
possession of the Premises and commence payment of rent, Landlord shall have
all of the rights and be entitled to recover from Tenant all of the damages
described in this Paragraph 21.
21.3 Termination of Concessions. In the event of any default
by Tenant, then, without notice and without limiting Landlord in the exercise
of any other right or remedy, Landlord may terminate any free rent, rent
reduction, free storage space, free utilities, free parking, or any other
free, reduced rate or other concession previously granted by or agreed to by
Landlord. Thereafter, the rent for the Premises shall be at the rate set
forth herein without reference to such free rent or rent reduction, and all
storage space, utilities, parking and other facilities and services shall be
at Landlord's then regular rates, payable in advance.
22. Payment of Tenant's Obligations by Landlord.
All covenants and agreements to be performed by Tenant under any of
the terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent. If Tenant shall fail to pay any
sum of money, other than rent, required to be paid by it hereunder or shall
fail to perform any other act on its part to be performed hereunder, and such
failure shall continue beyond any applicable grace period set forth in this
Lease, Landlord may, without waiving or releasing Tenant from any obligations
of Tenant, make any such payment or perform any such other act on Tenant's
part. All sums so paid by Landlord and all necessary incidental costs
together with interest thereon at the maximum rate for which parties may
legally contract from the date of such payment by Landlord shall be payable to
Landlord on demand and Tenant covenants to pay any such sums. Landlord shall
have (in addition to any other right or remedy of Landlord) the same rights
and remedies in the event of the nonpayment thereof by tenant as in the case
of default by Tenant in the payment of the rent.
23. Voluntary Surrender or Other Termination.
The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, shall not work a merger, and shall, at the option
of Landlord, terminate all or any existing subleases or subtenancies, or may,
at the option of Landlord, operate as an assignment to it of any or all such
subleases or subtenancies. Tenant shall, at lease ninety (90) days before the
last day of the term hereof, give to Landlord a written notice of his
intention to surrender the Premises on that date, but nothing contained herein
shall be construed as an extension of the term hereof or as consent of
Landlord to any holding over by Tenant.
24. Abandonment of Personal Property
In the event of termination of this Lease in any manner whatsoever,
Tenant shall forthwith remove Tenant's goods and effects and those of any
other persons claiming under Tenant, unless Landlord exercises his option to
have any subleases or subtenancies assigned to him, and quit and deliver the
Premises to the Landlord peaceably and quietly. Goods and effects not removed
by Tenant after termination of this Lease (or within forty-eight [481 hours
after a termination by reason of Tenant's default), shall be considered
abandoned. Landlord shall give Tenant notice of right to reclaim abandoned
property pursuant to California Civil Code Section 1980 et seq. and may
thereafter dispose of the same as it deems expedient, including storage in a
public warehouse or elsewhere at the cost and for the account of Tenant, but
Tenant shall promptly upon demand reimburse Landlord for any expenses incurred
by Landlord in connection therewith. Tenant hereby grants to Landlord a
security interest in said abandoned property in the event it si not reclaimed
within the statutory period, to secure the payment of rent and other amounts
payable by Tenant under this Lease, and in the event any amounts are due and
unpaid after the abandonment of the property and the period in which Tenant may
reclaim has expired, Landlord may dispose of the property in any commercially
reasonable manner in order to recover the amounts so due and unpaid.
25. Tenancy After Lease Term expires.
If, the Landlord's consent, Tenant holds possession of the Premises
after the term of this Lease, Tenant shall become a tenant from month to month
upon the terms herein specified but at a monthly rental equivalent to the
rental paid by Tenant at the expiration of the term of this Lease increased
pursuant to the terms of this Lease, payable in advance on or before the fist
day of each month. Tenant shall continue in possession until such tenancy
shall be terminated by Landlord, or until Tenant shall have given to Landlord
a written notice of his intention to terminate the tenancy at lease one (1)
month prior to the date of termination. If Tenant hlods over without the
consent of Landlord, Tenant hereby agrees to pay Landlord reasonable rent in
an amount at least equal to the highest Minimum Monthly Rent per Usable Square
Foot charged to any other tenant in the Building and Additional Rent based
upon Tenant's Rentable Square Feet during the period in which Tenant holds
over.
26. Notices.
Any and all notices or demands required or permitted herein shall be
in writing served either personally or by certified mail, return receipt
requested, at the addresses provided in fundamental lease provision "I" for
the party. If served personally, service shall be conclusively deemed made at
the time of such service. If served by certified mail, service shall be
conclusively deemed made forty-eight (48) hours after the deposit thereof in
the United States mail, postage prepaid. Either party may specify a different
address for notice purposes by giving written notice of its change of address
according to the terms of this Section 26.
29. Automobile Parking.
So long as Tenant is not in default, Tenant shall have a
non-exclusive right, in common with other tenants of the Building, and their
respective officers, employees, customers and invitees, to use the parking
spaces on the parking area, subject to availability, Tenant's compliance with
rules and regulations which Landlord may impose from time to time governing
use of the parking area, and the payment of such charge or fee as Landlord may
from time to time impose. Landlord may offer Tenant and its employees the
right, in common with other tenants of the Building and subject to
availability, to rent unreserved and undesignated parking spaces or reserved
and designated parking spaces in the parking area on a monthly basis, at
monthly rates and upon such other terms and conditions as Landlord may from
time to time establish. In the event Landlord shall grant Tenant exclusive
parking privileges, the area to be reserved to Tenant and the number of spaces
shall be as set forth in Exhibit "C" attached hereto and incorporated herein
by reference. Landlord reserves the right to impose such rules and
regulations, including methods of identification and controls, as may be
reasonably necessary in Landlord's discretion, for the efficient
administration of the parking areas on behalf of all tenants of the Building
and their respective officers, employees, customers and invitees. Landlord
reserves the right, but not the obligation, to cause the parking areas to be
operated by parking attendants who may be either Landlord's employees or
employees of an independent parking lot concessionaire, with the right to
provide valet or attendant parking or such other controls as may be reasonably
necessary for the efficient administration of the parking areas. The rules and
regulations governing use of the parking area in effect upon execution of this
Lease and until modified, amended or supplemented by Landlord, are attached
hereto as Exhibit "C-I" and incorporated herein by reference.
30 Miscellaneous Provisions.
(a) Landlord and Tenant hereby agree, acknowledge and intend that
time is of the essence with respect to this Lease and each of its provisions.
In connection with such agreement and acknowledgment, Landlord and Tenant each
intend to and hereby waive the benefit of public policy and any and all law,
statutory and common, against forfeiture.
(b) The waiver by landlord or Tenant of any term, covenant or
condition contained herein shall not be deemed to be a waiver of such term,
covenant or condition on any prior or subsequent breach of the same or any
other term, covenant or condition contained herein. The subsequent acceptance
of rent by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of
such rent.
(c) If any action or proceeding is brought by either party
against the other under this Lease and Landlord is the prevailing party, or if
the Landlord necessarily intervenes in or becomes a party to any action or
actions arising out of this Lease, then the Tenant shall pay to Landlord
reasonable attorney's fees and costs incurred by Landlord in such actions or
proceedings. If Tenant is the prevailing party in any litigation against
Landlord under this Lease, Landlord shall pay to Tenant its reasonable
attorney's fees and costs.
(d) This Lease constitutes the entire agreement between the
parties, and supersedes any prior agreements or understandings between them.
The provisions of this Lease may not be modified in any way except by written
agreement signed by both parties.
(e) This Lease shall be subject to and construed in accordance
with the laws of the State of California.
(f) Except as expressly otherwise provided in this Lease, all of
the provisions of this Lease shall bind and inure to the benefit of the
parties hereto and to their heirs, successors, representatives, executors,
administrators, transferees and assigns.
(g) Tenant represents that it has authority to execute this
Lease. If Tenant is a partnership or corporation, it agrees to deliver to
Landlord upon request satisfactory evidence of the authority of the person
executing the same if it is a partnership of a certified copy of a resolution
duly adopted, authorizing the execution of this Lease by the person executing
the same if it is a corporation.
(h) Each party agrees without additional consideration to
execute such other and further documents, and to perform such other and
further acts, as may be necessary or proper in order to consummate the
transaction contemplated by this Last.
(i) If any term or provision of this Lease, or the application
thereof to any person or circumstance or circumstance, shall be invalid or
unenforceable to any extent, 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 shall be enforceable
to the fullest extent permitted by law.
(j) In the event of a transfer of Landlord's interest in this
Lease, Landlord shall be relieved of any obligations hereunder accruing from
or after the date of such transfer and the assignee shall succeed to all of
the rights and obligations of Landlord hereunder. For purposes hereof,
"transfer" shall include successive transfers to successive assignees, both
voluntary and involuntary. No such transfer shall serve to release Landlord
from any liability incurred hereunder prior to such transfer.
LANDLORD: E.P. Investments, a California
Limited Partnership
By: EP CENTRUM, INC., General Partner
/s/ Xxxxxxx X. Xxxxxxx
By: ____________________________________
XXXXXXX X. XXXXXXX, President
TENANT: I. M. T., a New Jersey Corporation
/s/ Xxxxx Xxxx
By: _____________________________________
Xxxxx Xxxx - President / COO
