Exhibit 10.4
COMMERCIAL LEASE AGREEMENT
This Commercial Lease Agreement ("Lease") is made and effective April 1st, 2000,
by and between Alex Properties, a California General Partnership ("Landlord")
and IOM Holdings, Inc., a Nevada Corporation ("Tenant").
Landlord is the owner of land and improvements commonly know as numbered as 0000
Xxxxxxx, Xxxxx Xxx, Xxxxxxxxxx.
Landlord desires to Lease Premises to Tenant, and Tenant, and Tenant desires to
lease the Leased Premises from Landlord for the term, at the rental and upon the
covenants, conditions and provisions herein set forth.
THEREFORE, in consideration of the mutual promises herein, contained and other
good and valuable consideration, it is agreed:
1. TERMS.
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A. Landlord hereby leases the Leased premises to Tenant, and Tenant hereby
leases the same from landlord, for an "initial Term" beginning April 1st, 2000
and ending March 31, 2010. Landlord shall use its best efforts to give Tenant
possession as nearly as possible at the beginning of the Lease term. If Landlord
is unable to timely provide the Leased Premises, rent shall xxxxx for the period
of delay. Tenant shall make no other claim against Landlord for any such delay.
B. Tenant may renew the Lease for one extended term of ten years. Tenant shall
exercise such renewal option, if at all, by giving written notice to Landlord
not less than ninety (90) days prior to the expiration of the Initial Term. The
renewal term shall be at the rental set forth below and otherwise upon the same
covenants , conditions and provisions as provided in the Lease.
2. RENTAL.
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A. Tenant shall pay to landlord during the Initial Term rental from
04/01/2000 to 03/31/2003 at $.45/sf, from 04/01/2003 to 03/31/2006 at
$.50 with an increase of $.05 per square foot other year, payable
monthly. Each installment payment shall be due in advance on the first
day of each calendar month during the lease term to Landlord at 00000 Xx
Xxx, Xxxxxx Xxxxxx, Xxxxxxxxxx 00000 or at such other place designated by
written notice from Landlord or Tenant. The rental payment amount of any
partial calendar months included in the lease shall be prorated on a
daily basis. Tenant shall also pay to Landlord a "Security Deposit" in
the amount of One Month's rent.
B. The rental for any renewal lease term, if created as permitted under this
Lease, shall be calculated as follows: Year 2006 to 2016 and increase of
$.05 per square foot per year payable monthly.
3. USE.
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The Leased Premises may be used and occupied by Tenant for any lawful purpose
which complies with applicable zoning ordinances. Notwithstanding the foregoing,
Tenant shall not use the Leased Premises for the urposes of storing,
manufacturing or selling any explosives, flammables or other inherently
dangerous substance, chemical, thing or devise.
4. SUBLEASE AND ASSIGNMENT.
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Tenant shall have the right without Landlord's consent, to assign this Lease to
a corporation with which Tenant may merge or consolidate, to any subsidiary of
Tenant, to any corporation under common control with Tenant, or to a purchaser
of substantially all of Tenant's assets. Except as set forth above, Tenant shall
not sublease all or any part of the Leased Premises, or assign this Lease in
whole or in part without Landlord's consent, such consent not to be unreasonably
withheld or delayed.
5. REPAIRS.
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During the Lease term, Tenant shall make, at Tenant's expense, all necessary
repairs to the Leased Premises. Repairs shall include such items as routine
repairs of floors, walls, ceilings, and other parts of the Leased Premises
damaged or worn through normal occupancy, except for major mechanical systems or
the roof, subject to the obligations of the parties otherwise set forth in this
Lease.
6. ALTERATIONS AND IMPROVEMENTS.
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Tenant, at Tenant's expense, shall have the right following Landlord's consent
to remodel, redecorate, and make additions, improvements and replacements of and
to all or any part of the Leased Premises from time to time as Tenant may deem
desirable, provided the same are made in a workmanlike manner and utilizing good
quality materials. Tenant shall have the right to place and install personal
property, trade fixtures, equipment and other temporary installations in and
upon the Leased Premises, and fasten the same to the premises. All personal
property, equipment, machinery, trade fixtures and temporary installations,
whether acquired by Tenant at the commencement of the Lease term or placed or
installed on the Leased Premises by Tenant thereafter, shall remain Tenant's
property free and clear of any claim by Landlord. Tenant shall have the right to
remove the same at any time during the term of this Lease provided that all
damage to the Leased Premises caused by such removal shall be repaired by Tenant
at Tenant's expense.
7. PROPERTY TAXES.
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Landlord shall pay, prior to delinquency, all general real estate taxes and
installments of special assessments coming due during the Lease term on the
Leased Premises, and all personal property taxes with respect to Landlord's
personal property, if any, on the Leased Premises. Tenant shall be responsible
for paying all personal property taxes with respect to Tenant's personal
property at the Leased Premises.
8. INSURANCE.
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A. If the Leased Premises or any other party of the Building is damaged by fire
or other casualty resulting from any act or negligence of Tenant or any of
Tenant's agents, employees or invitees, rent shall not be diminished or abated
while such damages are under repair, and Tenant shall be responsible for the
costs of repair not covered by insurance.
B. Landlord shall maintain fire and extended coverage insurance on the Building
and the Leased Premises in such amounts as Landlord shall deem appropriate.
Tenant shall be responsible, at its expense, for fire and extended coverage
insurance on all of its personal property, including removable trade fixtures,
located in the Leased Premises.
C. Tenant and Landlord shall, each at its own expense, maintain a policy or
policies of comprehensive general liability insurance with respect to the
respective activities of each in the Building with the premiums thereon fully
paid on or before due date, issued by and binding upon some insurance company
approved by Landlord, such insurance to afford minimum protection of not less
than $1,000,000 combined single limit coverage of bodily injury, property damage
or combination thereof. Landlord shall be listed as an additional insured on
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Tenant's policy or policies of comprehensive general liability insurance, and
Tenant shall provide Landlord with current Certificates of Insurance evidencing
Tenant's compliance with this Paragraph. Tenant shall obtain the agreement of
Tenant's insurers to notify Landlord that a policy is due to expire at least
(10) days prior to such expiration. Landlord shall not be required to maintain
insurance against thefts within the Leased Premises or the Building.
9. UTILITIES.
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Tenant shall pay all charges for water, sewer, gas, electricity, telephone and
other services and utilities used by Tenant on the Leased Premises during the
term of this Lease unless otherwise expressly agreed in writing by Landlord. In
the event that any utility or service provided to the Leased Premises is not
separately metered, Landlord shall pay the amount due and separately invoice
Tenant for Tenant's pro rata share of the charges. Tenant shall pay such amounts
within fifteen (15) days of invoice. Tenant acknowledges that the Leased
Premises are designed to provide standard office use electrical facilities and
standard office lighting. Tenant shall not use any equipment or devices that
utilizes excessive electrical energy or which may, in Landlord's reasonable
opinion, overload the wiring or interfere with electrical services to other
tenants.
10. SIGNS.
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Following Landlord's consent, Tenant shall have the right to place on the Leased
Premises, at locations selected by Tenant, any signs which are permitted by
applicable zoning ordinances and private restrictions. Landlord may refuse
consent to any proposed signage that is in Landlord's opinion too large,
deceptive, unattractive or otherwise inconsistent with or inappropriate to the
Leased Premises or use of any other tenant. Landlord shall assist and cooperate
with Tenant in obtaining any necessary permission from governmental authorities
or adjoining owners and occupants for Tenant to place or construct the foregoing
signs. Tenant shall repair all damage to the Leased Premises resulting from the
removal of signs installed by Tenant.
11. ENTRY.
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Landlord shall have the right to enter upon the Leased Premises at reasonable
hours to inspect the same, provided Landlord shall not thereby unreasonably
interfere with Tenant's business on the Leased Premises.
12. PARKING.
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During the term of this Lease, Tenant shall have the non-exclusive use in common
with Landlord, other tenants of the Building, their guests and invitees, of the
non-reserved common automobile parking areas, driveways, and footways, subject
to rules and regulations for the use thereof as prescribed from time to time by
Landlord. Landlord reserves the right to designate parking areas within the
Building or in reasonable proximity thereto, for Tenant and Tenant's agents and
employees. Tenant shall provide Landlord with a list of all license numbers for
the cars owned by Tenant, its agents and employees. Separated structured
parking, if any, located about the Building is reserved for tenants of the
Building who rent such parking spaces. Tenant hereby leases from Landlord 88
spaces in such structural parking area, such spaces to be on a first come-first
served basis. In consideration of the leasing to Tenant of such spaces, Tenant
shall pay a monthly rental of N/A per space throughout the term of the Lease.
Such rental shall be due and payable each month without demand at the time
herein set for the payment of other monthly rentals, in addition to such other
rentals.
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13. BUILDING RULES.
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Tenant will comply with the rules of the Building adopted and altered by
Landlord from time to time and will cause all of its agents, employees, invitees
and visitors to do so; all changes to such rules will be sent by Landlord to
Tenant in writing. The initial rules for the Building are attached hereby as
Exhibit "A" and incorporated herein for all purposes.
14. DAMAGE AND DESTRUCTION.
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Subject to Section 8A above, if the Leased Premises or any part thereof or any
appurtenances thereto is so damaged by fire, casualty or structural defects that
the same cannot be used for Tenant's purposes, then Tenant shall have the right
within ninety (90) days following damage to elect by notice to Landlord to
terminate this Lease as of the date of such damage. In the event of minor damage
to any part of the Leased Premises, and if such damage does not render the
Leased Premises unusable for Tenant's purposes, Landlord shall promptly repair
such damage at the cost of the Landlord. In making the repairs called for in
this paragraph, Landlord shall not be liable for any delays resulting from
strikes, governmental restrictions, inability to obtain necessary materials or
labor or other matters which are beyond the reasonable control of Landlord.
Tenant shall be relieved from paying rent and other charges during any portion
of the Lease term that the Leased Premises are inoperable or unfit for
occupancy, or use, in whole or in part, for Tenant's purposes. Rentals and other
charges paid in advance for any such periods shall be credited on the next
ensuing payments, if any, but if no further payments are to be made, any such
advance payments shall be refunded to Tenant. The provisions of this paragraph
extend not only to the matters aforesaid, but also to any occurrence which is
beyond Tenant's reasonable control and which renders the Leased Premises, or any
appurtenance thereto, inoperable or unfit for occupancy or use, in whole of in
part, for Tenant's purposes.
15. DEFAULT.
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If default shall at any time be made by Tenant in the payment of rent when due
to Landlord as herein provided, and if said default shall continue for fifteen
(15) days after written notice thereof shall have been given to Tenant by
Landlord, or if default shall be made in any of the other covenants or
conditions to be kept, observed and performed by Tenant, and such default shall
continue for thirty (30) days after notice thereof in writing to Tenant by
Landlord without correction thereof then having been commenced and thereafter
diligently prosecuted, Landlord may declare the term of this Lease ended and
terminated by giving Tenant written notice of such intention, and if possession
of the Leased Premises is not surrendered, Landlord may reenter said premises.
Landlord shall have, in addition to the remedy above provided, any other right
of remedy available to Landlord on account of any Tenant default, either in law
or equity. Landlord shall use reasonable efforts to mitigate its damages.
16. QUIET POSSESSION.
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Landlord covenants and warrants that upon performance by Tenant of its
obligations hereunder, Landlord will keep and maintain Tenant in exclusive,
quiet, peaceable and undisturbed and uninterrupted possession of the Leased
Premises during the term of this Lease.
17. CONDEMNATION.
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If any legally, constituted authority condemns the Building or such part thereof
which shall make the Leased Premises unsuitable for leasing, this Lease shall
cease when the public authority takes possession, and Landlord and Tenant shall
account for rental as of that date. Such termination shall be without prejudice
to the rights of either party to recover compensation from the condemning
authority for any loss or damage caused by the condemnation. Neither party shall
have any rights in or to any award made to the other by the condemning
authority.
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18. SUBORDINATION.
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Tenant accepts this Lease subject and subordinate to any mortgage, deed of trust
or other lien presently existing or hereafter arising upon the Leased Premises,
or upon the Building and to any renewals, refinancing and extensions thereof,
but Tenant agrees that any such mortgagee shall have the right at any time to
subordinate such mortgage, deed of trust or other lien to this Lease on such
terms and subject to such conditions as such mortgagee may deem appropriate in
its discretion. Landlord is hereby irrevocably vested with full power and
authority to subordinate this Lease to any mortgage, deed of trust or other lien
now existing or hereafter placed upon the Leased Premises of the Building, and
Tenant agrees upon demand to execute such further instruments subordinating this
Lease or attorning to the holder of any such liens as Landlord may request. In
the event that Tenant should fail to execute any instrument of subordination
herein required to be executed by Tenant promptly as requested, Tenant hereby
irrevocably constitutes Landlord as its attorney-in-fact to execute such
instrument in Tenant's name, place and stead, it being agreed that such power is
one coupled with an interest. Tenant agrees that it will from time to time upon
request by Landlord execute and deliver to such persons as Landlord shall
request a statement in recordable form 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 so modified), stating the dates to which rent and
other charges payable under this Lease haven been paid, stating that Landlord is
not in default hereunder (or if Tenant alleges a default stating the nature of
such alleged default) and further stating such other matters as Landlord shall
reasonably require.
19. SECURITY DEPOSIT.
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The Security Deposit shall be held by Landlord without liability for interest
and as security for the performance by Tenant of Tenant's covenants and
obligations under this Lease, it being expressly understood that the Security
Deposit shall not be considered an advance payment of rental or a measure of
Landlord's damages in case of default by Tenant. Unless otherwise provided by
mandatory non-waivable law or regulation, Landlord may commingle the Security
Deposit with Landlord's other funds. Landlord may, from time to time, without
prejudice to any other remedy, use the Security Deposit to the extent necessary
to make good any arrearages of rent or to satisfy any other covenant or
obligation of Tenant hereunder. If Tenant is not in default at the termination
of this Lease, the balance of the Security Deposit remaining after any such
application shall be returned by Landlord to Tenant. If Landlord transfers its
interest in the Premises during the term of this Lease, Landlord may assign the
Security Deposit to the transferee and thereafter shall have no further
liability for the return of such Security Deposit.
20. NOTICE.
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Any notice required or permitted under this Lease shall be deemed sufficient
given or served if sent by United States certified mail, return receipt
requested, addressed as follows:
If to Landlord to:
Alex Properties
00 Xxxxxxx, Xxxxxx, XX 00000
If to Tenant to:
IOM Holdings, Inc.
0000 X. Xxxxxxx Xxx.
Xxxxx Xxx, Xx. 00000
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Landlord and Tenant shall each have the right from time to time to change the
place notice is to be given under this paragraph by written notice thereof to
the other party.
21. BROKERS.
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Tenant represents that Tenant was not shown the Premises by any real estate
broker or agent and that Tenant has not otherwise engaged in, any activity which
would form the basis for a claim for real estate commission, brokerage fee,
finder's fee or other similar charge, in connection with this Lease.
22. WAIVER.
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No waiver of any default of Landlord or Tenant hereunder shall be implied from
any omission to take any action or account of such default if such default
persists or is repeated, and no express waiver shall affect any default other
than the default specified in the express waiver and that only for the time and
to the extent therein stated. One or more waivers by Landlord or Tenant shall
not be construed as a waiver of a subsequent breach of the same covenant, term
or condition.
23. MEMORANDUM OF LEASE.
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The parties hereto contemplate that this lease should not and shall be filed for
record, but lieu thereof, at the request of either party, Landlord and Tenant
shall execute a Memorandum of Lease to be recorded for the purposes of giving
record notice of the appropriate provisions of this Lease.
24. HEADINGS.
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The headings used in this Lease are for convenience of the parties only and
shall not be considered in interpreting the meaning of any provision of this
Lease.
25. SUCCESSORS.
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The provisions of this Lease shall extent to and be binding upon Landlord and
their respective legal representatives, successors and assigns.
26. CONSENT.
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Landlord shall not unreasonably withhold or delay its consent with respect to
any matter for with Landlord's consent is required or desirable under this
Lease.
27. PERFORMANCE.
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If there is a default with respect to any of Landlord's covenants, warranties or
representations under this Lease, and if the default continue more than fifteen
(15) days after notice in writing from Tenant to Landlord specifying the
default, Tenant may, at its option and without affecting any other remedy
hereunder, cure such default and deduct the cost thereof from the next accruing
installment or installments of rent payable hereunder until Tenant shall have
fully reimbursed for such expenditures, together with interest thereon at a rate
equal to the lessor of twelve percent (12%) per annum of the then highest lawful
rate. If this Lease terminates prior to Tenant's receiving full reimbursement,
Landlord shall pay the unreimbursed balance plus accrued interest to Tenant on
demand.
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28. COMPLIANCE WITH LAW.
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Tenant shall comply with all laws, orders, ordinances and other public
requirements now or hereafter pertaining to Tenant's used of the Leased
Premises. Landlord shall comply with all laws, orders, ordinances and other
public requirements now or thereafter affecting the Leased Premises.
29. FINAL AGREEMENT.
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This agreement terminates and supersedes all prior understanding or agreements
on the subject matter hereof. Only by a further writing that is duly executed by
both parties may modify this Agreement.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year
first above written.
Alex Properties IOM Holdings, Inc.
By /S/ Xxxx Xxxxxxx By /S/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx Xxxx Xxxxxxx
General partner President
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