Exhibit 99.1
LEASE AGREEMENT
by and between
RCBC REALTY CORPORATION
-and-
ACCESS WORLDWIDE (AWWC) PHILIPPINES INC.
0000
Xxxxxx Xxxx, Xxxxxxxxxxx
Confidential
LEASE AGREEMENT
This Lease Agreement is executed on this ___ day of March, 2005 in Makati City,
Philippines, by and between:
RCBC REALTY CORPORATION, a corporation duly organized and existing
under and by virtue of the laws of the Republic of the Philippines,
with office address at 0xx Xxx. XXXXXXXXX Xxxxxxxx, 000 Xxx. Xxx X.
Xxxxx Avenue, Makati City (hereinafter referred to as the "LESSOR");
-and-
ACCESS WORLDWIDE (AWWC) PHILIPPINES INC., a corporation in the process
of incorporation, with office address at 8F Pacific Star Building, Sen.
Xxx Xxxxx Avenue, Makati City (hereinafter referred to as "LESSEE");
WITNESSETH THAT;
WHEREAS, the LESSOR is the owner in fee simple of office units in the
building known as the RCBC Plaza ("RCBC Plaza") located at Xxxxx Ave. cor. Sen.
Xxx Xxxxx Ave., Makati City covered by Transfer Certificate of Title {"TCT")
No.210163 of the R8gistly of Deeds of Makati City.
WHEREAS, the LESSEE offered for lease from the LESSOR the premises,
shown and outlined on the floor plans attached hereto as Annex "A" (hereinafter
referred to as the "Leased Premises") and the LESSOR accepted the said offer.
NOW, THEREFORE, the parties have agreed as follows:
SECTION 1
THE LEASED PREMISES
1.1 Description of the Premises
The LESSOR hereby lease unto the LESSEE the Leased Premises containing
an area of 1679.37 square meters {sq. m.) and situated at the 18th
Floor of Yuchengco Tower as indicated in Annex "A" hereof.
The LESSOR also guarantees to Lessee the right to lease up to 16
reserved parking spaces within RCBC Plaza for the term of the
Agreement.
1.2 Appurtenant Rights to the Leased Premises
The Leased Premises shall include title appurtenant right to use, in
common with other owners/occupants of the Yuchengco Tower, lobbies,
entrances, stairs, corridors, elevators, other Building Common Areas of
the Yuchengco Tower the applicable Limited Common Areas and the General
Common Areas. All the windows and outside walls of the Leased Premises,
and any space in the Leased Premises Used for shafts, pipes, conduits,
ducts, telephone ducts and equipment, electric or other utilities,
sinks or other facilities in the RCBC Plaza, and the use
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thereof and access thereto through the Leased Premises for the purpose
of operation, maintenance, inspection, display and repairs are hereby
reserved to the LESSOR.
1.3 Delivery of the Leased Premises
The LESSOR shall deliver to the LESSEE physical Possession of the
Leased Premises on April 1, 2005 (the "Turn-Over Date") to allow the
LESSEE to begin the construction of the improvements thereto in
accordance with the terms of the Fit-Out Guide for Office, a copy of
which is attached hereto as Annex "B", the terms and conditions of
which are incorporated herein by reference.
The LESSOR shall provide a fully integrated false ceiling System to the
L.ESSORS specific design incorporating a fire sprinkler system,
air-conditioning ducting, 20 Variable Air Volume (VRV) units and
lighting fixtures.
Other than as set forth in this Agreement, The LESSOR delivers and the
LESSEE accepts the Leased Premises in their current condition. The
Lessor has no obligation whatsoever to make any other alteration,
repair or improvement of any kind to the Leased Premises in order to
prepare the same for the LESSEE's occupancy.
The Construction Period shall be that period from April 1, 2005 until
June 30, 2005. During this period, no rent is payable, however the
LESSEE shall pay association dues at the reduced rate of Php105.00 per
sq.m.. Upon commencement of the supply of air conditioning to the
premises or expiry of the construction period, Condominium dues shall
be levied at the buildings standard rate e.g. PHP 170.00 per sq. m. per
month.
1.4 Use of the Leased Premises
The LESSEE shall use the Leased Premises exclusively as an office for
the conduct of its Iawful business as a marketing and communication
center. The LESSEE shall use the Leased Premises strictly in accordance
with (i) applicable law and regulations, (ii} the Master Deed with
Declaration of Restrictions of the RCBC Plaza (the "Master Deed")
attached hereto as Annex "C", and (iii) the House Rules and Regulations
(the "House Rules imposed by the LESSOR (the current House Rules of
which is attached hereto as Annex "D") and such other rules as may be
issued by the LESSOR from time to time for the safety and order of the
RCBC Plaza the comfort ('1f the occupants thereof.
1.5 Improvements and Alterations
The LESSEE may introduce additions, alterations or improvements,
whether movable or immovable, within the Leased Premises upon the prior
written consent of the LESSOR and provided that such additions,
alterations or improvements will not compromise the system integrity,
structural safety, and architectural, technical and aesthetic; standard
of the RCBC Plaza and provided further that works shall be performed
only by contractor approved by or acceptable to the LESSOR.
All permanent additions, alterations and improvements made on the
Leased Premises by the LESSEE shall become the LESSOR's property upon
the termination of this Lease Agreement and the LESSEE shall not be
reimbursed for the value thereof. However, the LESSOR may demand at
LESSEE's expense, the removal of the said additions or improvements in
whole or in part and the restoration of the Leased Premises to the
condition in which they were delivered to the LESSEE at Turn-over Date,
normal where and tear excepted.
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SECTION 2
TERM
The term of this Lease (the "Term") shall be for a period of five (5)
years and shall commence on April 1, 2005 and expire on March 31, 2010
unless sooner terminated as herein provided.
LESSEE shall have the right to renew the lease for another 5 year term
by serving six (6) months written notice of its intention to renew
prior to lease expiry. Except that the rental rate, all of the terms
and conditions of the lease agreement shall be in full force and effect
during each renewal term.
The basis for determining the renewal rental rate shall be renewals
that have transpired in RCBC Plaza within the past six (6) months.
Consideration shall be given to the terms of renewal of these
transactions such as the amount of space occupied, and other aspects
which make a tenant comparable to Lessee.
SECTION 3
FINANCIAL OBLIGATIONS OF THE LESSEE
3.1 Rent
(a) The LESSEE shall pay to the LESSOR a monthly rent Pesos Eight
Hundred Thirty Nine Thousand Six Hundred Eighty Five only
(Php839,685.00) (the "Rent") in the accordance with the schedule set
forth below payable quarterly in advance within the first five (5) days
of end of the quarter at the office address of the LESSOR indicated
below. The Rent shall be inclusive of the creditable withholding tax,
but exclusive of the Expanded Value Added Tax ("EVAT") and such other
taxes as may now or hereafter be imposed on the Rent.
Lease Year Monthly Rental
1) June 1, 2005 to March 31, 2006 839,685.00
2) April 1, 2006 to March 31, 2007 839,685.00
3) April 1, 2007 to March 31, 2008 839,685.00
4) April 1, 2008 to March 31, 2009 839,685.00
5) April 1, 2009 to March 31, 2010 839,685.00
Upon the execution of this Lease Agreement, LESSEE shall pay three
months advance rental in tile amount of Two Million Five Hundred
Nineteen Thousand and Fifty Five Pesos (PHP 2,519,055.00) which shall
be applied to the first three months of the Lease Term following the
Construction Period. The Construction Period shall be that Period from
April 1, 2005 through May 31, 2005.
(b) Payment by the LESSEE shall be binding on the LESSOR only if
evidenced by an official receipt issued by the LESSOR's Accounting
Department Payment by check shall have the effect of payment only when
such check is actually encashed by the LESSOR, without unreasonable
delay.
(c) In case of an extraordinary inflation, or deflation of the
Philippine Peso during the Term of this Lease Agreement, the LESSOR or
the LESSEE shall have the option to adjust the current and future rents
accordingly. The LESSOR and the LESSEE agree that extraordinary
inflation or deflation shall be deemed to have occurred if the average
exchange rate (the "Average Exchange Rate") of the Philippine Peso to
the United States (US) Dollar for any consecutive 12 month period
during the Term increases or decreases by more than 25%. The Average
Exchange Rate shall be determined by computing 0" the last banking day
of every month in any twelve-consecutive-month period the average of
the Philippine Peso/US Dollar reference rate published by the Bangko
Sentral ng Pilipinas for all the banking days of that particular month.
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(d) The LESSOR or the LESSEE may exercise this option by giving written
notice to the other side of the occurrence of the inflation or
deflation and the applicable adjusted Rent for the succeeding calendar
month. Failure of either party to promptly reject the Rent adjustment
in writing within [3 calendar] days from receipt of the Adjustment
Notice shall be construed as acceptance thereof and the Lessee shall be
unconditionally bound to pay and the Lessor bound to accept the
adjusted Rent on the succeeding calendar month. In case of disagreement
as to the Rent adjustment, the LESSOR and the LESSEE shall negotiate in
good faith within [15 calendar] days from receipt of the Adjustment
Notice. If no resolution is reached by the parties at the expiry of
such [15 calendar] days, either party may terminate this Lease
Agreement effective upon fifteen [15 ] days from the date of written
notice of termination to the other party. In the event the LESSEE
terminates this lease Agreement pursuant to this Section the LESSEE
shall pay the LESSOR a pre-termination penalty of forfeiture in favor
of the LESSOR in an amount equal to 6 months.
(e) In the event that the real property tax on the land upon which the
RCBC Plaza is constructed shall be increased at any time during the
Term or there shall be levied any new or additional assessment or
charge on the Leased Premises, the LESSOR shall be entitled to adjust
the current and future Rents accordingly, commencing on the date the
real property tax, assessment or charge is increased or imposed by
giving written notice to the LESSEE of the increase of the real
property tax or the imposition of new or additional assessments or
charges. The adjusted Rent or any arrears shall be payable on the
immediately succeeding calendar month.
3.2 Security Deposit
Upon the signing of this Lease Agreement, LESSEE shall deposit with the
LESSOR a security deposit in an amount equivalent to three (3) months'
Rent and Association Dues in the aggregate sum of Three Million Three
Hundred Seventy Five Thousand Five Hundred Thirty Three and 70/100
{PHP3,375,533.70) for the proper and faithful performance by the LESSEE
of its obligations hereunder, as well as for any damage suffered by the
Leased Premises and shall not in any case relieve the LESSEE from
payment of Rent its option, LESSOR may apply the Security Deposit or a
part thereof to cure any default of the LESSEE. The Security Deposit
shall be adjusted accordingly upon each increase in the Rent or upon
demand by the LESSOR after application of part of the Security Deposit
to cure any Default. The Security Deposit or any remaining portion
thereof shall be returned to the LESSEE, without Interest, within two
(2) months, after the expiration of the Term, provided, the LESSEE has
fully performed its obligations hereunder.
3.3 Construction Bond
Prior 10 any initial construction or renovation of the Leased Premises,
the LESSEE shall submit to the LESSOR a cash construction bond
equivalent to one (1) month Rent in effect at the time construction is
to be undertaken by the LESSEE. The bond shall stand as security for
the repair or reconstruction of any damage caused to the RCBC Plaza or
any property of the LESSOR or of any tenant or occupant of the RCBC
Plaza arising out of or in connection with the fault or negligence of
the LESSEE, its contractors, suppliers or workers undertaking such
construction or renovation or violation by the LESSEE of the Fit-Out
Guidelines, the House Rules and all other requirements prescribed by
the LESSOR. This shall be returned to the LESSEE without interest after
the completion of construction or renovation work, less any
construction related charges due to the LESSOR.
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3.4 Condominium Dues
The LESSEE shall pay the Condominium Dues of Php170.00 per sq.m on the
Leased Premises within the first five (5) days of each calendar month.
Condominium Dues are subject to review and adjustment by the LESSOR
based on the actual amount of expenses incurred by the LESSOR.
The term "Condominium Dues" shall mean all charges allocable to the
repair, ownership, management, maintenance, replacement, restoration or
operation of the General Common Areas, Yuchengco Tower Building Common
Areas and the limited Common Areas (as these terms are defined in the
Master Deed) or any part thereof intended to be devoted for the common
benefit of occupants of the Yuchengco Tower in general and the Leased
Premises in particular (including the expenses, costs and disbursements
of every kind and nature) which the lESSOR shall pay and/or become
obligated to pay, including but not limited to, the following:
(a) Electrical charges for the operation of the air-conditioning during
the standard operating hours and costs of water, sewage, common area
electricity, common area air conditioning and other utilities and
Building Systems furnished in connection with the operation of the
Yuchengco Tower;
(b) Wages and salaries of all employees engaged in the operation and
maintenance of the RCBC Plaza or any part thereof, including, but not
limited to, taxes, insurance and benefits relating thereto, to the
extent such wages and salaries relate to the employees' involvement in
the operation or maintenance of the Yuchengco Tower or any part
thereof;
(c) All supplies and materials used in the operation and maintenance of
the Yuchengco Tower or any part thereof;
(d) Cost of all service agreements and maintenance for the Yuchengco
Tower or any part thereof and the equipment therein, including, but not
limited to, trash removal, security services, alarm services, window
cleaning, janitorial services, conditioned air maintenance, elevator
maintenance, pest control and grounds maintenance;
(e) Cost of all insurance relating to the Yuchengco Tower or any part
thereof including, but not limited to, the cost of casualty and
liability insurance applicable to the RCBC Plaza and the LESSOR's
personal property used in connection therewith;
(f) All taxes, assessments, and governmental charges, whether local,
city or national for the Yuchengco Tower or any part thereof or by
others, subsequently created (excepting the EVAT)
(g) Cost of repairs and general maintenance of the interior and
exterior of the Yuchengco Tower or any part thereof, including, but not
limited to, glass breakage and landscaping;
(h) Any management fee for the general operation and management of the
Yuchengco Tower or any part thereof; and
(i) Any amortization cost due to any capital expenditures incurred (i)
which have the effect of reducing or limiting Operating Costs of the
Yuchengco Tower or any part thereof, if such reduction of limitation
inures to the LESSEE's benefit (but only to the extent and in the
amount that such Operating Costs of the (Yuchengco TowerfTower 2/Podium
Areas) are reduced); (ii) which may be required by governmental
authority or by the LESSOR's insurance carrier; or (iii) which are
designed to protect or enhance the health, safety, or welfare of the
LESSEE in the (Yuchengco TowerfTower 2/Podium Areas) or their invitees.
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For the avoidance of doubt, the following are excluded from Condominium
Dues:
(a) Depreciation;
(b) Principal, interest, and other costs directly related to the
financing of the construction of the RCBC Plaza;
(c) Wages and salaries of any supervisory or management employee of the
LESSOR not involved in the day-to-day operation and maintenance of the
Yuchengco Tower; and
(d) Costs, fines or penalties incurred by the LESSOR due to the
violation by the LESSOR of (i) any governmental rule or regulation or
(ii) the terms and conditions of any agreement for the lease of space
in the RCBC Plaza.
3.5 Taxes
Any EVAT which are due on the Rent as well as other taxes which may be
imposed thereon, shall be for the account of the LESSEE and shall be
paid directly to the Bureau of Internal Revenue ("BIR") for and in
behalf of, and in the name of, the LESSOR. The LESSEE agrees to provide
the LESSOR proof of payment to the BIR of the applicable EVAT and other
taxes no later than the tenth (10th) day of each month.
The creditable withholding tax on rental payments for the lease of real
property in the amount imposed under pertinent tax laws and regulations
shall be withheld by the LESSEE by deducting the amount of such tax
from the Rent. The LESSEE shall remit on due date the taxes so withheld
directly to the BIR. Such taxes withheld and remitted shall be credited
in favor of the LESSOR in the appropriate tax return. Within three (3)
business days from such remittance, LESSEE shall issue to the LESSOR a
certificate of withholding taxes remitted.
3.6 Utilities
The LESSEE shall pay consumption of electricity and water to the
LESSOR's Property Management Office and for telephone usage directly to
the concerned utility authority. The LESSEE agrees to install
sub-meters for electricity, water, chilled water and other utilities in
the Leased Premises which shall be registered in the name of and shall
be the property of the LESSOR.
3.7 Gross Up of Payments by the LESSEE
All payments by the LESSEE to the LESSOR, unless otherwise provided in
this Lease Agreement, shall be free and clear of and without deduction
for or on account of any tax. Should the LESSEE be required to make
such a deduction for, or withholding of, tax imposed, levied or
assessed by or otherwise payable to the Republic of the Philippines,
payment by the LESSEE to the LESSOR shall be increased to the extent
necessary to ensure that the LESSOR receives a sum net of any deduction
or withholding equal to the sum it would have received had no such
deduction or withholding been made or required to be made.
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3.7 Penalty Interest for Delay in Payment
All monetary obligations of the LESSEE under this Lease Agreement that
not paid on due date shall bear a penalty of four percent (4%) for
every month of delay or a fraction thereof computed from due date until
the date of full payment thereof.
SECTION 4
RIGHTS AND OBLIGATIONS OF THE PARTIES
4.1 Use and Care of the Leased Premises
(a) The LESSEE shall use the Leased Premises only for office and
related purposes and not for any other purpose.
(b) The LESSEE shall maintain the Leased Premises in accordance with
the standards and requirements of a first class office condominium, and
shall keep the same in first class, good, clean and tenantable
condition at all times and shall promptly and properly repair any
damage in the Leased Premises. The LESSEE shall promptly inform the
LESSOR of any damage, defect or similar condition (for whatever cause)
in the Leased Premises. In the event the LESSEE fails to undertake the
maintenance and repair works as stipulated herein, the LESSOR may opt
to perform the works and charge the cost thereof to the LESSEE. Repair
and maintenance works shall be done for the LESSEE's own account only
upon the prior written consent of the LESSOR using only contractors
approved by or acceptable to LESSOR.
(c) The LESSEE shall not bring into the Leased Premises any firearms,
deadly weapons, gasoline, explosives, inflammable materials,
refrigerators, stoves, and cooking paraphernalia or equipment but
LESSOR may allow microwave and refrigerator.
(d) The LESSEE shall not, without the LESSOR's prior written consent,
hang, fix or erect shades, awnings, blinds or window guards of any
description, shelters or coverings, wire or aerial wiring, supports,
iron brackets and any other thing on any part of the Leased Premises.
(e) The LESSEE shall be solely responsible at all times for its acts
and omissions and those of its employees, agents, and any other
person(s) gaining access to the Leased Premises and/or the RCBC Plaza
on account of the LESSEE. Any loss, damage or injury to the Leased
Premises or any of its contents or any injury to person therein due to
theft and robbery or caused by the fault or negligence of the LESSEE,
its employees and agents, or other persons gaining access to the Leased
Premises and/or the RCBC Plaza on account of the LESSEE, shall be the
responsibility and for the sole account of the LESSEE.
4.2 Inspections
The LESSOR, its agents or employees shall, upon 48-hour prior written
notice, have the right to enter the Leased Premises at reasonable hours
examine the Leased Premises, make repairs that the LESSEE may neglect
or refuse to make in accordance herewith, and make or install such
alterations, improvements and repairs therein as the LESSOR may deem
reasonably necessary or desirable. In case of emergency
repair/maintenance works, the LESSOR, its agents or employees shall
have the right to enter the Leased Premises anytime.
Within six (6) months prior to the expiration of the Term or any
intended date of termination, the LESSOR may show the Leased Premises
to prospective lessees at reasonable hours upon 48-hour prior written
notice to the LESSEE. During the last three (3) months of the Term, the
LESSOR may at any time, with notice to the LESSEE, enter, alter,
improve, repair, renovate or redecorate the Leased Premises, provided,
that the LESSEE shall have vacated the Leased Premises and removed all
or substantially all its property. Any of such acts by the LESSOR shall
not relieve the LESSEE of any of its obligations under this Lease
Agreement nor shall the LESSOR incur any liability to the LESSEE for
such acts.
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4.3 Compliance with Laws and Operations
The LESSEE shall strictly comply with all laws, ordinances and
regulations relative to the occupancy and use of the Leased Premises.
Any penalties that may be imposed for violation thereof shall be for
the account of the LESSEE.
4.4 Insurance
The LESSEE shall provide and maintain, at its sole expense and at all
times during the Term, the following insurances:
(a) during the period of construction of the improvements and any
renovation, furnishing and equipping of the Leased Premises,
general liability and all risk property damage insurance fully
protecting the LESSEE and the LESSOR against loss or damage
arising in connection with the construction of the
improvements to the Lease Premises and the renovation,
furnishing and equipping of the Leased Premises. The property
damage insurance shall be in an amount covering at all times
not less than the full replacement cost of the Leased Premises
and its contents.
(b) fire and extended coverage insurance insuring its interest in
its improvements to the Leased Premises and any and all
furniture, equipment, supplies, contents and other property
owned, leased, held or possessed by the LESSEE and contained
therein in an amount equal to the full insurable value of such
improvements and property, as such may increase from time to
time;
(c) worker's compensation and employer's liability insurance
required by applicable law; and
(d) comprehensive liability coverage for bodily injury, death or
damage to the property of third persons, occasioned by or
arising out of or related to any construction work being done
on the Leased Premises, or arising out of or related to the
condition, use, or occupancy of the Leased Premises, or other
portions of the RCBC Plaza Tenancy Areas or incidents caused
by employees of the LESSEE in amounts not less Five Millfon
Pesos (PHP 5,000,000.00) with respect to injuries to or death
of anyone person, Twenty Million Pesos (PHP 20,000,000.00)
with respect to anyone casualty or occurrence, and Five
Million Pesos (PHP 5,000,000) with respect to any property
damage.
The LESSEE shall ensure that the LESSOR shall be named as an
additional insured party in the policies to be protected
against all liability occasioned by any occurrence insured
against. All insurance policies to be obtained by the LESSEE
shall be written: (i) on an "occurrence" basis; (ii) as
primary policy insurance and not contributing with or in
excess of any coverage which the LESSOR or the Condominium
Corporation may carry; (iii) in a form and substance
acceptable to the LESSOR; and (iv) issued by insurance
companies acceptable to the LESSOR. The LESSEE shall, within
five (5) days from execution of the insurance policy, provide
copies of the policies to the LESSOR together with proof of
payment of the premiums therefor. No later than ten (10) days
prior to the expiration date of an insurance policy, the
LESSEE shall furnish the LESSOR a new or renewed insurance
policy under the same or better conditions as the expired
policy, together with proof of payment of the premiums
therefor.
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4.5 Hazardous Substances
The LESSEE shall not cause or permit any Hazardous Materials
(hereinafter defined) to be used, stored, transported, released,
handled, produced or installed in, on or from the Leased Premises or
the RCBC Plaza. The term "Hazardous Materials", as used herein, shall
mean any flammables, explosives, radioactive materials, hazardous
wastes, hazardous and toxic substances or related materials, asbestos
or any material containing asbestos, or any other substance or material
included in the definition of "hazardous substances", "hazard
materials", "toxic substances", "contaminants" or any other pollutant,
as may be provided by any law, ordinance, rule or regulation.
4.6 Signs
The LESSEE shall obtain the written approval of the LESSOR prior to
placing and maintaining, or causing or permitting to be placed and
maintained, any sign, advertising matter or other thing of any kind in
the Leased Premises or on the exterior or on any exterior door or
windows of the Leased Premises. Unless the LESSOR otherwise
specifically consents in writing, all exterior and elevator lobby signs
of or pertaining to the LESSEE shall conform to uniform building sign
specifications promulgated by the LESSOR.
SECTION 5
ASSIGNMENT AND SUBLETTING
Neither this Lease Agreement nor any of the rights, title, interest and
obligations of the LESSEE herein, shall be assigned, subleased, or otherwise
transferred by the LESSEE, in whole or in part, without the prior written
consent of the LESSOR.
Any material change in the ownership or voting control or in the nature of the
business of the LESSEE shall be deemed an assignment of this Lease Agreement
for which the prior written consent of the LESSOR must be obtained.
SECTION 6
DEFAULT
6.1 Each of the following constitutes an event of default of the LESSEE
("Event of Default"):
(a) failure to pay the Rent and/or any of the fees, charges, dues, and
other payments required of the LESSEE under this Lease Agreement or the
House Rules on its due date;
(b) failure to comply with any of the terms and conditions of this
Lease Agreement;
(c) misrepresentation or violation of any of its representations and
warranties in this Lease Agreement;
(d) commission of an act of insolvency, or filing of any petition or
action for relief under any insolvency, bankruptcy, reorganization,
suspension of payment or moratorium or similar law, or having such
petition or action filed against it, or application with any court or
agency for the appointment of a receiver or trustee to take possession
of its properties, or inability or admission in writing of its
inability to pay its debts as they fall due; and
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(e) abandonment of the Leased Premises. The LESSEE shall be considered
to have abandoned the Leased Premises if the LESSEE is in arrears in
the payment of monthly Rents or other accounts herein provided for a
period of at least one (1) month, and the Leased Premises have been
closed for business or remains unused for the same period without any
notice of closure having been furnished to the LESSOR.
6.2 Consequences of Default
(a) If an Event of Default shall have occurred, then at any time
thereafter, the LESSOR may, by written notice to the LESSEE, declare
the LESSEE in default and demand specific performance of the pertinent
provision(s) of the Lease Agreement or declare this Lease Agreement
terminated and without further force and effect, specifying therein the
effective date of termination.
Upon such termination, the LESSEE shall vacate and deliver possession
of the Leased Premises to the LESSOR in accordance with the terms of
this Lease Agreement. The Security Deposit shall be forfeited in favor
of the LESSOR. Moreover, the LESSOR shall be entitled to collect from
the LESSEE, and the LESSEE shall continue to be liable for, the monthly
Rent for the unexpired period of the Term. The monthly Rent shall be
due to the LESSOR in addition to whatever damages, actual or
consequential, that the LESSOR may incur or suffer arising from the
termination of the Lease Agreement. In no case shall any amount due
hereunder from the LESSEE be applied against the Security Deposit, it
being understood that the entire amount thereof shall be forfeited in
favor of the LESSOR.
Should the LESSEE refuse to vacate the Leased Premises, the LESSOR
shall have the option to exercise its rights under Section 8.2
SECTION 7
PRETERMINATION EVENTS
7.1 Strikes and Lock Outs
In the event that (i) a picket line is established in or outside the
Leased Premises or in the vicinity thereof due to a labor dispute
involving the LESSEE or arising in any way from the conduct of the
LESSEE's business, (ii) an activity is performed therein which, in the
judgment of the LESSOR, interferes with or affects the operations of
the RCBC Plaza or the peaceful enjoyment and possession by other
lessees or occupants of the RCBC Plaza, or (iii) any event, accident or
cause beyond the control of the LESSEE continuously threatens the lives
of the other tenants or occupants of the RCBC Plaza or their respective
employees, guests, customers or clients and the security of the RCBC
Plaza itself, then the LESSOR may, at its sale option, terminate the
Lease Agreement by written notice to the LESSEE, provided that the
LESSOR shall refund to the LESSEE the Security Deposit, less any amount
that may be properly deducted therefrom in accordance with the terms of
this Lease Agreement. However, the LESSOR shall be entitled to collect
the Rents pertaining to the unexpired period of the Term.
If the LESSOR shall not elect to terminate this Lease Agreement, it
may, in its sole discretion and by written notice, require the LESSEE
to pay for any additional cost which the LESSOR may incur in hiring
additional security guards, maintaining the cleanliness of the RCBC
Plaza or in contracting for such other services, including legal
services, and other costs of suit, as may be required for the
well-being, security and welfare of the other lessees and occupants of
the RCBC Plaza.
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7.2 Destruction of the Premises
In case of damage to the Leased Premises by fire, earthquake, war or
other unforeseen or unavoidable causes, the LESSEE shall immediately
notify the LESSOR of such damage. The LESSOR shall cause the repair of
the damage, provided that the LESSOR's responsibility shall be confined
only to the restoration of the Leased Premises, excluding improvements
or other properties introduced therein, to the same condition that they
were in immediately preceding the damage. Within 60 days from the
receipt of notice from the LESSEE of such damage, the LESSOR shall
notify the LESSEE in writing of the period within which repairs to the
Leased Premises are expected to be accomplished
If the Leased Premises, without regard to improvements introduced
therein and as determined solely by the LESSOR, can be repaired within
270 days from commencement of repair works, then this Lease Agreement
shall continue to be effective. However, the Rent due shall be
proportionally reduced according to the remaining usable area of the
Leased Premises. If, as determined by the LESSOR, the damage to the
Leased Premises, without regard to the improvements or other properties
introduced therein, cannot be repaired within 270 days from the
commencement of repair works, then this Lease Contract may be
terminated by either party upon 3D-day written notice to the other
party or the LESSOR may allow a proportionate reduction of the rent
according to the remaining area of the Leased Premises.
7.3 Eminent Domain
If the whole of the Lease Premises shall be taken or condemned in any
eminent domain, condemnation, compulsory acquisition or like proceeding
by any competent authority, this Lease Agreement shall terminate as of
the date of such taking or condemnation. The LESSOR shall refund to the
LESSEE the Security Deposit, less any amount that may be properly
deducted therefrom in accordance with the terms of this Lease
Agreement.
If only part of the Leased Premises or the RCBC Plaza Tenancy Areas
shall be taken or condemned in any eminent domain, condemnation,
compulsory acquisition or like proceeding, by any competent authority
for any public or quasi-public use or purpose, then this Lease
Agreement shall continue to be effective, subject to the proportionate
reduction of the Rent due. In either of the foregoing events, the
LESSEE shall not have any right or claim to any part of the
compensation or award granted or to be granted to the LESSOR as
consideration for such taking. However, provided that the compensation
to be received by the LESSOR shall not be reduced thereby, nothing
contained herein shall preciude the LESSEE from claiming, proving and
receiving from the condemning authority a separate award for the value
of any of the LESSEE's property taken by the condemning authority which
the LESSEE could have rightfully removed from the Leased Premises
hereunder.
7.4 Interruption of Service(s)
In the event of interruption of services directly resulting from the
LESSORS actions rendering all or a portion of the Leased Premises
untenantable, Lessee shall have the following remedies: (1)
proportionate abatement of rent if the services are interrupted for
more than three (3) working days, and (2) the right to terminate the
lease without penalty, if services are interrupted for more than thirty
(30) days, provided that such interruption of services is due to no
fault of Lessee, and Lessor is given a reasonable period of time to
remedy the interruption of services.
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SECTION 8
RETURN OF THE LEASED PREMISES
8.1 Surrender of Leased Premises
Upon the termination of this Lease Agreement, the LESSEE shall
immediately vacate the Leased Premises and return possession thereof to
the LESSOR devoid of occupants, furniture articles or effects of any
kind other then alteration/improvements. In the event that the Leased
Premises is determined by the LESSOR not to be in good and tenantable
condition (ordinary wear and tear excluded) upon its return, the LESSEE
shall continue paying the monthly Rent at the Hold-Over Rate up to the
time the Leased Premises have been restored in good and tenantable
condition and turned over to the LESSOR. Nothing herein will prevent
the LESSOR from entering the Leased Premises or otherwise enforcing its
rights of ownership under applicable law.
8.2 Failure to Surrender the Leased Premises
Should the LESSEE fail or refuse to vacate the Leased Premises, the
LESSOR shall have the right to eject the LESSEE therefrom, recover all
amounts due as Rent with interest, together with judicial costs and
attorney's fees, and cause the discontinuance of the supply of
utilities and services to the Leased Premises. Should the LESSEE
continue in possession of the Leased Premises beyond the Term of the
Lease Agreement or the effective date of termination, the monthly rent
payable by the LESSEE shall be at a hold-over rate equal to twice the
then current monthly Rent ("Hold-Over Rent") for every month of the
hold-over period. All other terms and conditions of this Lease
Agreement shall continue in force during the holdover period. For the
avoidance of doubt, the exercise by the LESSOR of its hold-over rights
shall not be interpreted as a grant or permission to the LESSEE to
continue in possession of the Leased Premises beyond the term of the
Lease Agreement.
The LESSOR shall also have the power and authority to padlock the
Leased Premises and prevent the LESSEE and/or any of its employees,
agents, and guests from entering and using the Leased Premises until
all the outstanding accounts of the LESSEE shall have been paid in
full. The LESSOR shall have the right and authority to open and enter
the Leased Premises, take inventory of any and all furniture, effects,
materials and other properties found therein or in the RCBC Plaza but
pertaining to the Leased Premises, remove the same from the Leased
Premises, and place them in storage. The LESSOR shall have the right to
retain by way of pledge, and store, any piece of furniture, fixture,
equipment, material or other personal property found in the Leased
Premises or the RCBC Plaza until full settlement of the LESSEE's
obligations. In such event, the LESSEE hereby waives any and all rights
and causes of action against the LESSOR for any damage and depreciation
upon said properties. The LESSEE shall be charged and undertakes to pay
storage fees in accordance with actual warehouse xxxxxxxx.
One month after the removal of the LESSEE's properties from the Leased
Premises, if the LESSEE's account remains outstanding, the LESSOR shall
have the option to dispose of such furniture, effects, and other
properties in accordance with Article 2112 of the Civil Code. In the
event that the LESSOR does not avail of this option, the LESSOR shall
release the said properties to the LESSEE only when the overdue
obligations shall have been fully paid.
The foregoing notwithstanding, the LESSOR shall likewise have the right
to exercise all other legal rights and remedies which may now or
hereafter be available it under this Lease Agreement or under any
applicable law.
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SECTION 9
REPRESENTATIONS AND WARRANTIES OF THE LESSEE
The LESSEE hereby represents and warrants to the LESSOR that:
(a) The LESSEE is a corporation duly organized, validly existing and
in good standing under the laws of the Republic of the Philippines
and has the requisite corporate power and authority to enter into
this Lease Agreement and to carry out its obligations hereunder.
(b) All the necessary corporate or legal actions for the execution,
delivery and performance of this Lease Agreement as contemplated
hereunder have been duly taken and this Lease Agreement
constitutes legal, valid and binding obligations of the LESSEE,
enforceable against it in accordance with the terms hereof. No
consents or approvals are required to be obtained from, or filings
or registrations made with, any governmental body or agency, or
any other third party for the due execution and performance by the
LESSEE of its obligations under this Lease Agreement
(c) The execution, delivery and performance by the LESSEE of this
Lease Agreement do not and will not: (i) violate in any respect
the provision of, or result in the breach of, or constitute a
default under [1J the organization documents of the XXXXXX xx [0X
any agreement, contract, undertaking or instrument to which the
LESSEE is a party or which is binding upon the LESSEE or any of
its properties or assets; or Oi) constitute a violation of any
statute, rule or regulation, order, judgment or decree of any
court, administrative body or authority applicable to the LESSEE.
SECTION 10
MISCELLANEOUS PROVISIONS
10.1 Force Majeure
The LESSOR shall be excused for the period of any delay and shall not
be deemed in default with respect to the performance of any of the
terms, covenants, and conditions of this Lease Agreement when prevented
from so doing by causes beyond the LESSOR's control, which shall
include, but not be limited to, all labor disputes, governmental
regulations or controls, fire or other casualty, inability to obtain
any material or services, or acts of God. However, said events shall in
no case justify the suspension of the payment by the LESSEE of the
monthly Rents or the reduction thereof.
10.2 Right to Relocate
For lessees who occupy less than 300 rentable square meters, the LESSOR
reserves the right, at any time during the term of the lease, to
relocate the lessee within the building. The LESSOR shall deliver a
written notice to the LESSEE of the LESSOR's decision to relocate the
LESSEE, together with a proposal for the area to which the LESSEE shall
be relocated, provided that such proposed area shall be substantially
similar in terms of the location and view of, or shall constitute an
improvement of, the original Leased Premises. Should the LESSOR
exercise its right to relocate the LESSEE under this Section then (i)
the reasonable expenses of said relocation or of any necessary
renovation or alteration, as calculated by the LESSOR and the LESSEE in
their respective reasonable judgment prior to any relocation, shall be
paid by the LESSOR (including the actual, reasonable costs of replacing
office materials such as letterhead with materials of similar quality
and quantity) and (ii) following such relocation, the substituted space
shall, for all purposes thereafter, constitute the Leased Premises, and
all the terms and conditions of the original lease shall apply with
full force and effect to the Leased Premises as so relocated. The
LESSEE agrees to promptly execute and deliver to the LESSOR any lease
amendment or other such document appropriate to reflect the changes in
the lease described or contemplated above.
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If the LESSEE has not relocated its premises within sixty (60) days
after it received the notice of relocation, the LESSOR shall have the
right to terminate this Lease Agreement by giving written notice of
termination at least ten (10) days from the effective date of
termination.
10.3 Indemnification
Notwithstanding any applicable insurance that the LESSEE may have, the
LESSEE shall indemnify, protect, defend and save free and harmless the
LESSOR, its officers, directors, shareholders, agents and employees
against any and all liabilities, claims, suits, demands, damages,
judgments, costs, fines, penalties, interest and expenses (including
all professional fees and expenses thereof) which the LESSOR, its
officers, directors, shareholders, agents or employees may suffer or be
made liable for arising out of or in connection with (i) the possession
and use of the Leased Premises by the LESSEE, its employees and agents,
or other persons gaining access to the Leased Premises and/or the RCBC
Plaza on account of the LESSEE; (ii) any loss, injury, damage, death
occurring in or about the Leased Premises due to the fault or
negligence of the LESSEE; (iii) any work, installation or thing
whatsoever done or omitted to be done in or about or due to the Leased
Premises by the LESSEE, its employees, contractors and agents, or other
persons gaining access to the Leased Premises and/or RCBC Plaza on
account of the LESSEE; (iv) any breach or violation by the LESSEE of
the stipulations of this Lease Agreement, the Master Deed or the House
Rules; and (v) all other acts and omissions done by the LESSEE, its
employees or agents, or any other persons gaining access to the Leased
Premises and/or the RCBC Plaza on account of the LESSEE.
10.4 Limitation of Liability
The LESSOR, its officers, directors, stockholders, agents or employees
shall not be liable for any death, injury or damage which may be caused
to the person or property of the LESSEE, its employees and agents, or
other persons gaining access to the Leased Premises and/or the RCBC
Plaza while visiting or doing business in any part of the Leased
Premises due to (i) causes solely attributable to the fault or
negligence of the LESSEE, its employees and agents, or other persons
gaining access to the Leased Premises and/or the RCBC Plaza, (ii)
robbery or theft, fire, earthquake, war, strike, any act of violence or
other unforeseen or unavoidable causes beyond the control of the
LESSOR, (iii) fire, explosion, falling debris, steam, smoke, gas,
electricity, water or other leaks from any part of the RCBC Plaza
Tenancy Areas and/or the RCBC Plaza, or from pipes or plumbing and
other infrastructure works done or being done in or about the RCBC
Plaza unless due to the gross negligence or willful misconduct of the
LESSOR, and (iv) public or quasi-public works. Neither shall the
LESSOR, its officers, directors, stockholders, agents or employees be
liable for any inconvenience or delay suffered or may be suffered by
the LESSEE, its employees and agents, or other persons gaining access
to the Leased Premises and/or RCBC Plaza for the failure of the LESSOR
to supply security, maintenance, elevator, plumbing, air-conditioning
and other common or similar services.
15
In the event the LESSOR is in any way determined [by final judgment] to
be liable for any injury, death or damage to persons or property
(including without limitation, loss arising from or in any way
connected with any negligent or reckless act or omission of the LESSOR
or any fraudulent, negligent, reckless or willful act or omission of
any of its directors, officers, employees, agents or contractors,
whether or not the possibility could have been foreseen by the LESSOR),
the maximum amount payable by the LESSOR shall be limited to actual
damages but in no event shall the LESSOR be liable beyond the net
amount recovered under its insurance policies or the person responsible
for such injury, death or damage. The foregoing notwithstanding, the
LESSOR, its directors, officers, stockholders, employees or agents
shall have no personal liability to any person for any special,
indirect or consequential loss, damage, cost, expense, liability or
claim suffered or incurred by such persons
10.5 Confidentiality
Each party agrees that, except as required by law, the terms and
conditions of this Lease Agreement, all information and documents
(whether financial, technical or otherwise) obtained by it or its
agents from the other party which are not generally publicly available
or which are intended exclusively for the knowledge or use of the
Receiving Party, shall be kept confidential and not disclosed to any
other person or entity without the prior written approval of the other
party.
The obligations of the Receiving Party under this Section shall survive
the termination of this Lease Agreement.
10.6 Subordination of Lease Agreement
(a) The LESSEE confirms and acknowledges that this Lease Agreement
and all of the LESSEE's rights herein are and shall be subject
and subordinate to (i) any and all legal and/or contractual
restrictions or easements that may attach to the RCBC Plaza or
the land on which the RCBC Plaza is located; (ii) the Master
Deed, as this may be amended from time to time, and any and
all house rules and regulations now or hereafter affecting the
RCBCPlaza Tenancy Areas, its surrounding areas, and the Leased
Premises; and (iii) any mortgage, lien or encumbrance now or
hereafter affecting the RCBC Plaza, the land on which the
RCBCPlaza Tenancy Areastands, and the Leased Premises, which
the LESSOR may grant at its sole discretion in the course of
its business.
(b) The LESSEE hereby confirms and agrees that the mortgagee or
holder of a security interest over the RCBC Plaza, the land on
which the RCBC Plaza Tenancy Area stands or the Leased
Premises shall not be deemed substituted to any of the rights,
privileges, liabilities or obligations of the LESSOR under
this Lease Agreement or for any obligations not otherwise
expressed in this Lease Agreement until such time as the
mortgagee, its agent or its successor-in-interest takes
control over the Leased Premises.
(c) The LESSEE confirms and agrees that neither the cancellation
nor termination of any foreclosure of mortgage nor the
institution of any suit, action, summary or other proceeding
against the LESSOR shall result in the cancellation or
termination of this Lease Agreement, unless the mortgagee
shall elect otherwise in the case of a foreclosure of the
mortgage.
(d) If a mortgagee or prospective mortgagee shall request
modifications to this Lease, the LESSEE shall not unreasonably
withhold, delay or defer its consent thereto, on the
understanding that such modifications do not impose materially
onerous obligations on the LESSEE.
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10.7 Non-Waiver of Rights
No failure on the part of any party to this Lease Agreement to
exercise, and no delay on its part in exercising, any right or remedy
under this Lease Agreement will operate as a waiver thereof, nor will
any single or partial exercise of any right or remedy preclude any
other or further exercise thereof or the exercise of any other right or
remedy. The rights provided in this Lease Agreement are cumulative and
not exclusive of any rights or remedies provided by law.
10.8 Notarial and Registration Expenses
Expenses for the notarization of this Lease Agreement shall be for the
account of the LESSOR. Should either party opt for registration of the
Lease Agreement, such Party shall shoulder all taxes, fees and other
costs of registration.
10.9 Severability
The illegality, invalidity or unenforceability of any provision of this
Lease Agreement under the law of any jurisdiction shall not affect its
legality, validity or enforceability under the law of any other
jurisdiction nor the legality, validity or enforceability of any other
provision. any provision of this Lease Agreement held illegal, invalid
or unenforceable only in part or degree shall remain in full force and
effect to the extent not held illegal, invalid or unenforceable.
10.10 Entire Agreement
This Lease Agreement constitutes the entire agreement between the
parties relating to the subject matter hereof, superseding all prior
agreements, oral or written. It shall be binding upon and inure to the
benefit of the parties and their respective successors and permitted
assigns. This Lease Agreement may be amended, superseded, or cancelled,
and the terms hereof may be waived only by a written instrument signed
by the parties, or in case of a waiver, by the party waiving
compliance.
10.11 Liens
No work performed by the LESSEE in the Leased Premises, whether
pursuant to this Lease Agreement or otherwise, whether in the nature of
erection, construction, alteration, addition, improvement, remodeling
or repair, shall be deemed to be for the immediate use and benefit of
the LESSOR, and no mechanic's or material man's lien shall be allowed
against the LESSOR by reason of any consent given by the LESSOR to the
LESSEE to improve the Leased Premises. The LESSEE shall pay promptly
all persons furnishing labor or materials with respect to any work
performed for the LESSEE or its contractor on or about the Leased
Premises. The LESSEE undertakes to promptly pay or in any other manner
discharge any such mechanic's, material man's or similar lien on the
Leased Premises and/or the RCBC Plaza for work or materials claimed to
have been furnished to the LESSEE, within 10 days following notice or
knowledge thereof.
10.12 Notices
All instructions, notices, requests and other communications required
or permitted to be given hereunder shall be in writing and shall be
deemed to have been fully given on the date of actual receipt if
delivered personally, or on the date sent by registered mail, confirmed
fax or through a reputable courier service to the authorized
representatives of the LESSOR and the LESSEE:
17
LESSOR: RCBC Realty Corp. LESSEE: Access Worldwide (AWWC)
Philippines, Inc.
Address: 3rd Flr., Grepalife Bldg., Address: 8th floor Pacific Star Building
Sen. G. Puyat Ave., Makati City Sen G. Puyat Ave. cor. Makati Ave.
Tel. No: 0000000 Tel No:
Fax: Fax:
Attention: Xxxxx X. Xx Attention: Xxxxxxx X. Yuchengco, III
The LESSOR and the LESSEE may change their authorized representatives
and their mailing addresses and other details herein by written notice
to the other party hereto.
10.13. Venue
Without to prejudice to the arbitration provision of this Agreement,
any action under this Lease Agreement must be brought before the proper
court of the City of Makati, Philippines. In case of any judicial
recourse, the prevailing party shall be entitled to recover from the
losing party its reasonable attorney's fees and legal costs in
connection with the suit.
10.14 Arbitration
Any dispute, controversy or claim arising out of or relating to this
Lease Agreement shall be settled by arbitration if any such dispute,
controversy or claim cannot be settled within thirty (30) days by
amicable discussions of the parties, such dispute shall be referred to
arbitration in accordance with Republic Act No. 876,as amended. There
shall be three (3) arbitrators--each party shall be designating their
respective nominee, and the third arbitrator shall be mutually agreed
upon by the two arbitrators designated by each of the parties. The
arbitration shall be conducted in the Philippines and the language of
arbitration shall be English. The arbitration proceedings, including
the making of the award of arbitrators, shall be final and binding upon
the Parties.
The arbitral award shall be in writing and, unless the parties agree
otherwise, shall state the reasons upon which it is based. The award
may include an award of costs, including reasonable attorney's fees and
disbursements. Judgment upon the award may be entered by any court of
competent jurisdiction.
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10.15 Governing Law
This Lease Agreement shall be governed by and construed in accordance
with Philippine law.
IN WITNESS WHEREOF, the parties have duly executed this Lease
Agreement.
RCBC REALTY CORPORATION
Lessor Lessee
By By
--------------------- ---------------------
WITNESS WITNESS
----------------------- -----------------------
ACKNOWLEDGMENT
REPUBLIC OF THE PHILIPPINES)
City of )
BEFORE ME, a Notary Public, at the above-stated locality, on this [ ]
day of [ ], personally appeared:
Name Community Tax Date/Place Issued
Certificate./ Passport No
______________ in his
capacity as President of
RCBC Realty Corporation
_______________________ in his
capacity as ______________ of
_____________________________
known to me and to me known to be the same persons who executed the foregoing
instrument, and who acknowledge the same to be their free and voluntary act and
deed, and the free and voluntary act and deed of the corporations they
respectively represent.
Said instrument refers to a Lease Agreement involving a condominium unit/s in
the RCBC Plaza Condominium Project located at [ ], and consists of [ ] pages,
including this page wherein this Acknowledgment is written, signed by the
parties and their witnesses on each and every page, and sealed with my notarial
seal.
Doc. No. ______;
Page No. _____ ;
Book No. _____;
Series of 2005.
