LEASE
dated as of February 5, 0000
xxxxxxx
XXXXXXXX XXXXXXXXXX SUNBELT DEVELOPERS, INC.,
as Landlord ("Landlord")
and
GTC TELECOM, a Nevada corporation;
XXXX XXXXXXX; and XXXX XXXXXX
Jointly and Severally
as Tenant ("Tenant")
relating to premises at
Suite K-104
THE XXXX XXXXX EXECUTIVE GUILD CENTER
0000 Xxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Lease Summary
This page is for the convenience of the parties and summarizes the
principal terms of the lease. It does not alter or define any of
the terms of this lease.
Project: The project in which the Premises is located
is THE XXXX XXXXX EXECUTIVE GUILD CENTER,
located at 0000 Xxxxxx Xxxxxx, Xxxxx Xxxx,
Xxxxxxxxxx.
Tenant: The Tenant is GTC TELECOM, a Nevada
corporation; XXXX XXXXXXX; and XXXX XXXXXX,
Jointly and Severally
Term: This Lease applies to a month-to-month tenancy for a
maximum term of twelve (12) months and a minimum term
of three (3) months.
Commencement
Date: This lease shall commence on February 8, 1999.
Termination
Date: This Lease applies to a month-to-month tenancy, for a
maximum period of twelve (12) months, terminating no
later than February 7, 2000, subject to early
termination as specified herein. However, in no
event shall the lease term be less than a minimum
period of three (3) months (i.e., May 7, 1999).
Early
Termination: This Lease may be terminated by either party by
providing written notice of intention to terminate,
one party to the other, no less than thirty (30) days
prior to the date of intended termination.
Premises: The Premises consist of ground floor office
space located within THE XXXX XXXXX EXECUTIVE
GUILD, Building K and further referenced as
"Suite K-104", and further outlined in Exhibit
"C" to the lease.
Net rentable area of the Premises:
Approximately 1,987 rentable square feet as
per calculations provided by XXXXX XXXXXXXX
ASSOCIATES INTERIOR PLANNING & DESIGN in
accordance with industry guidelines and
procedures.
Base
Year Rent: Effective Base Rental Rate for the period of
occupancy is approximately $1.85 per square foot.
Year 1 $3,675.95 per month ($1.85 per
sq. ft.)
Security Deposit: $4,000.00
TABLE OF CONTENTS
1. TERM/PREMISES/USE ..................................................1
1.1 Leasing Clause and Premises ...................................1
1.2 Term ..........................................................1
1.3 Use ...........................................................1
2. RENT ...............................................................1
2.1 Base Rent .....................................................1
2.2 Initial Base Rent .............................................1
2.3 Adjustments in Base Rent ......................................1
2.4 Partial Payment of Rent........................................2
2.5 Additional Rent ...............................................2
2.6 Additional Rent ...............................................2
3. SERVICES TO BE FURNISHED BY Landlord ...............................2
3.1 General .......................................................2
3.2 Electricity/HVAC ..............................................2
3.3 Limits re Air-Conditioning ....................................2
3.4 Landlord Not to Be Liable .....................................3
4. PREPARATION AND ACCEPTANCE OF PREMISES .............................3
4.1 Condition of Premises on Delivery .............................3
4.2 Tenant Improvements ...........................................3
5. QUIET ENJOYMENT ....................................................3
6. REPAIRS AND RE-ENTRY ...............................................4
6.1 Tenant's Obligations ..........................................4
6.2 Landlord's Obligations ........................................4
6.3 Re-Entry by Landlord ..........................................4
7. ALTERATIONS BY TENANT AND TENANT FIXTURES ..........................4
7.1 Tenant Alterations ............................................4
7.2 Tenant Fixtures and Other Property ............................4
8. ASSIGNMENT AND SUBLETTING ..........................................5
8.1 Prohibition of Assignment and Other Transfers .................5
8.2 Proposed Assignment and Sublease...............................5
8.3 Tenant to Remain Liable .......................................5
8.4 Landlord's Assignment .........................................5
9. USE OF THE PREMISES ................................................5
9.1 Legal Use and Violations of Insurance Coverage ................5
9.2 Nuisance; Rules and Regulations ...............................6
10. INDEMNITY/LIABILITY ................................................6
10.1 Indemnity By Tenant ...........................................6
10.2 Landlord Not To Have Liability ................................6
10.3 Mutual Release and Waiver of Subrogation ......................7
10.4 Transfer of Ownership .........................................7
10.5 Express Agreement .............................................7
11. ACCESS FOR REPAIRS AND INSPECTION ..................................7
12. FIRE OR OTHER CASUALTY .............................................7
12.1 Major Casualty ................................................7
12.2 Repairable Casualty ...........................................8
12.3 Landlord's Election ...........................................8
13. CONDEMNATION .......................................................8
13.1 Condemnation ..................................................8
13.2 Restoration After Partial Taking ..............................9
14. LIEN FOR RENT ......................................................9
15. HOLDOVER ...........................................................9
16. INSURANCE ..........................................................9
16.1 Landlord's Insurance ..........................................9
16.2 Tenant's Insurance - Liability ...............................10
16.3 Tenant's Insurance - Other ...................................10
16.4 Evidence of Insurance ........................................10
16.5 No Representation of Adequate Coverage .......................10
17. DEFAULT ...........................................................10
17.1 Non-Payment of Rent ..........................................10
17.2 Breach .......................................................10
17.3 Insolvency ...................................................10
17.4 Abandonment ..................................................10
17.5 Remedies .....................................................11
17.6 Late Charges .................................................11
18. OPERATING EXPENSES ................................................11
18.1 Operating Expenses Defined ...................................11
18.2 Personal Property Taxes ......................................12
19. SECURITY DEPOSIT ..................................................13
20. UNDERLYING MORTGAGES ..............................................13
20.1 Subordination ................................................13
20.2 Attornment to Mortgage .......................................13
20.3 Landlord's Default ...........................................13
20.4 Non-Disturbance ..............................................14
20.5 Estoppel Certificates ........................................14
21. PARKING PROVISIONS ................................................14
21.1 Unassigned Parking ...........................................14
21.2 Landlord Not To Be Liable ....................................14
22. HAZARDOUS MATERIALS ...............................................14
22.1 Landlord's Representations and Indemnity as to
Hazardous Materials .........................................14
22.2 Tenant's Representations and Indemnity as to
Hazardous Materials .........................................14
22.3 Freon ........................................................14
22.4 Hazardous Materials Defined ..................................14
23. RELOCATION; PROJECT NAME ..........................................15
23.1 Relocation ...................................................15
23.2 Project Name .................................................15
24. NOTICES ...........................................................15
25. BROKER'S OR AGENT'S COMMISSION ....................................16
26. GENERAL ...........................................................16
26.1 Equal Employment Opportunity .................................16
26.2 Place of Performance - Governing Law .........................16
26.3 Severability ................................................16
26.4 Inurement ...................................................16
26.5 Integration .................................................17
26.6 No Waiver ...................................................17
26.7 Attorney's Fees and Arbitration ..............................17
26.8 Captions ....................................................17
26.9 Authority ...................................................17
26.10 Submission of Lease ........................................17
26.11 Exhibits ....................................................19
STATE OF CALIFORNIA
COUNTY OF ORANGE
OFFICE LEASE
THIS LEASE ("Lease"), made and entered into by and between
SOUTHERN CALIFORNIA SUNBELT DEVELOPERS, INC. ("SCSD"), and
GTC TELECOM, INC., a Nevada corporation; XXXX XXXXXXX;
and XXXX XXXXXX, jointly and severally ("Tenant"), and
dated, February 5, 1999 for reference purposes only.
1.
TERM/PREMISES/USE
1.1 Leasing Clause and Premises. Subject to the terms and
conditions of this Lease, Landlord hereby leases
premises to Tenant, and Tenant hereby rents and accepts
premises from Landlord pursuant to the terms of this
Lease. The "Premises" are approximately 1,987 rentable
square feet (as per calculations provided by XXXXX
XXXXXXXX ASSOCIATES INTERIOR PLANNING & DESIGN in
accordance with industry guidelines and procedures)
situated on the ground floor of Building K at THE XXXX
XXXXX EXECUTIVE GUILD CENTER, located at 0000 Xxxxxx
Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx (the "Project"),
designated suite number K-104 and more fully described
on a floor plans attached hereto and marked Exhibits "D".
1.2 Term. This Lease applies to a month-to-month tenancy,
for a maximum term of twelve (12) months, commencing
February 8, 1999, and terminating no later than February
7, 2000, subject to early termination as specified
herein. However, in no event shall the lease term be
less than a minimum period of three (3) months (i.e.,
May 7, 1999). This Lease may be terminated by either
party by providing written notice of intention to
terminate, one party to the other, no less than thirty
(30) days prior to the date of intended termination.
1.3 Use. Tenant shall use the Premises for general
business offices uses and shall not occupy or use, or
permit any portion of the Premises to be occupied or
used for any other purpose whatsoever. This Lease
covers no other part of the Project or the ground upon
which it is located, except the nonexclusive rights
granted by Landlord to Tenant, its agents, employees,
customers, business invitees and visitors to use the
public corridors, the elevators, stairways and similar
common areas within the Project, and the ground level
parking area.
2.
RENT
2.1 Base Rent. Tenant shall pay Landlord a monthly base
rent ("Base Rent"), without offset or deduction, as set
forth in this Section. Base Rent shall be payable
commencing on the Commencement Date. The first payment
shall be made, in advance, upon execution of this Lease.
The second and subsequent payments shall be made in
monthly installments in advance for the following month,
on the first day of each and every month until the end
of the Term, to the following address:
SCSD EXECUTIVE GUILD J.W.A.
0000 Xxxx Xxxxxxxx Xxx., Xxxxx 000
Xxxx, Xxxxxxxxxx 00000
2.2 Initial Base Rent. Tenant shall pay a Base Rent of
$3,675.95 per month until adjusted pursuant to Section 2.3.
2.3 Base Rent. Base Rent shall be:
Lease Yr Base Rent/Monthly
Annual Base Rent
Year 1 $3,675.95 per month ($1.85 per sq. ft.) $44,111.40
2.4 Partial Payment of Rent. Tenant shall make all
rental payments in full. Payment or receipt of a rental
payment of less than the amount stated in the lease
shall be deemed to be nothing more than partial payment
on that month's account. Under no circumstances shall
Landlord's acceptance of a partial payment constitute
accord and satisfaction. Nor will Landlord's acceptance
of a partial payment forfeit Landlord's right to collect
the balance due on the account, despite any endorsement,
stipulation, or other statement on any check. The
Landlord may accept any partial payment check with any
conditional endorsement without prejudice to its right
to recover the balance remaining due, or to pursue any
other remedy available under this lease.
2.5 Additional Rent. All other sums of money required
under this Lease to be paid by Tenant to Landlord, other
than Base Rent, are designated "Additional Rent". The
term "Rent" in this Lease means Base Rent and Additional
Rent.
2.6 Tenant's pro rata share of Operating Expenses shall be
determined in proportion to the part of the total square
footage of the Project which is usable and used by
Tenant in the reasonable conduct of its business or
profession, and shall be paid as Additional Rent, in the
manner set forth in Section 18. Landlord and Tenant
agree that Tenant's pro rata share is a fraction, the
numerator of which is the number of rental square feet
of the Premises, and the denominator of which is the
total rentable square feet contained in the Project.
Tenant's share is approximately 2.5% (Tenant's Share")
in an amount not to exceed four (4) Index points per
annum nor less than one Index point per annum, times the
then current Rent amount.
3.
SERVICES TO BE FURNISHED BY LANDLORD
3.1 General. Landlord shall furnish or cause to be
furnished to the Premises the following services: (a)
electricity for lighting the Premises and operating
ordinary 110-volt portable desk top office equipment of
the type normally used in general business offices,
subject to paragraph 3.2 of this Lease, (b) heat and
air-conditioning as may reasonably be required for the
comfortable use and occupancy of the Premises during
Project Operating Hours, (c) janitor and cleaning
services limited to emptying and removal of general
office refuse, dusting and light vacuuming of floors as
needed, Monday through Friday, and such window washing
as may in the reasonable judgment of Landlord be
required, (d) replacement of fluorescent tubes and light
bulbs, (e) domestic water for the operation of
lavatories, drinking fountains and coffee bars and (f)
toilet room supplies.
3.2 Electricity/HVAC. There will be no additional cost
to Tenant for Tenant's use of electrical service unless
and until Tenant's use of electrical power exceeds
electrical allowance of $.12 (twelve cents) per square
foot per month. The electric usage shall be reviewed on
a quarterly basis and any amount in excess of said
allowance shall be billed to Tenant which is immediately
due and payable to Landlord as "additional rent".
3.3 Limits re Air-Conditioning. In the event that Tenant
requires equipment or machines, generating heat
substantially in excess of what is generally considered
standard equipment for professional and clerical office
use, which affect the temperature of the Premises
maintained by the air-conditioning system, Landlord
reserves the right to provide supplementary
air-conditioning equipment. Prior to installation of
any additional air-conditioning equipment, Landlord
will review with Tenant the cost,
installation and maintenance cost of said equipment and
said cost shall be paid by Tenant upon demand.
3.4 Landlord Not To Be Liable. Landlord shall not be
liable for failure to furnish or cause to be furnished
any of the foregoing services when such failure is
caused by accidents or conditions beyond the control of
the Landlord, or by necessary repairs, labor
disturbances or labor disputes of any character, whether
resulting from or caused by acts of Landlord or
otherwise; provided, however, that in any such events,
Landlord shall make a prompt and diligent effort to
cause the resumption of such services. Landlord shall
not be liable under any circumstances for loss of or
injury to property, however occurring, through or in
connection with or incidental to the furnishing of any
of the foregoing, nor shall any failure relieve Tenant
from the duty to pay the full amount of rent herein
reserved, or constitute or be construed as a
constructive or other eviction of Tenant. If Tenant is
in default under this Lease, Landlord shall have the
right, at Landlord's option, to suspend or discontinue
the foregoing services, or any thereof, during the
continuance of any such default, and any such suspension
or discontinuance shall not be deemed to be an eviction
or ejection of Tenant.
4.
PREPARATION AND ACCEPTANCE OF PREMISES
4.1 Condition of Premises on Delivery. The
Premises are rented "as-is", without any additional
services or improvements to be provided by Landlord
unless otherwise specified in Exhibit "E" attached
hereto. Taking possession of the Premises by Tenant
shall be conclusive evidence as against Tenant that the
Premises and the Project were in good and satisfactory
condition when possession was taken.
4.2 Tenant Improvements. Prior to the commencement of the
term of this Lease, Landlord shall substantially
complete the work, if any, as may be required to be done
as specified in attached Exhibit "E" and/or Lease
Summary Page. Landlord's time to complete such work, if
any be specified in attached Exhibit "E" and/or Lease
Summary Page, shall be extended by one day for each day
of delay resulting from interference with or hindrance
of such work by Tenant, or any of Tenant's employees,
servants, or agents, for changes in such work requested
by Tenant and agreed to by Landlord and for delays
caused by the failure of Tenant or Tenant's contractor
to timely and properly complete any of Tenant's work in
the Premises. Neither such delays or any other delay
shall make this Lease void or voidable or alter or
affect any of the terms hereof and Tenant shall not be
entitled to any abatement of rent therefor; and all
claims for damages arising out of any delay are waived
and released by Tenant.
5.
QUIET ENJOYMENT
Tenant, upon keeping, observing and performing all of
the covenants and agreements of this Lease on its part
to be kept, observed and performed, shall lawfully and
quietly hold, occupy and enjoy the Premises during the
term of this Lease, subject, however, to the covenants,
agreements, terms, provisions and conditions of this
Lease and to underlying mortgages to which this Lease is
subject and subordinate.
6.
REPAIRS AND RE-ENTRY
6.1 Tenant's Obligations. Tenant will, at Tenant's own cost
and expense, repair or replace any damage done to the
Project or any part thereof, caused by Tenant or
Tenant's agents, employees, invitees, or visitors. If
Tenant fails to promptly make such repairs or
replacements within fifteen (15) days of the occurrence
of the event causing such damage, Landlord may, at its
option, make such repairs and replacements itself, and
Tenant shall repay the cost thereof to Landlord on
demand as Additional Rent. Tenant shall take good care
of the Premises and the fixtures and improvements
therein and shall not commit or allow any waste or
damage to be committed on any portion of the Premises,
and shall, upon termination of this Lease, deliver up
the Premises (except as otherwise herein provided) in
substantially the same condition as accepted by Tenant
on commencement date, reasonable wear and tear excepted,
and shall deliver to Landlord all keys to the Premises.
6.2 Landlord's Obligations. Landlord shall make
repairs, restorations and replacements as and when
needed to the Premises which are not the requirement of
the Tenant or other Tenants of the Project.
6.3 Re-Entry by Landlord. Upon termination of this Lease,
Landlord shall have the right to re-enter and assume
possession of the Premises, and the cost and expense of
any repairs necessary to restore the condition of the
Premises to the condition in which they are to be
delivered to Landlord shall be borne by Tenant.
7.
ALTERATIONS BY TENANT AND TENANT FIXTURES
7.1 Tenant Alterations. Tenant will not make or allow to
be made any alterations, additions or improvements
("Tenant Alterations") in or to the Premises without the
prior written consent of Landlord, which will not be
unreasonably withheld. Tenant shall pay or cause to be
paid all costs for work done by it or caused to be done
by it on the Premises of a character which will or may
result in liens on Landlord's interest therein and
Tenant will keep the Premises free and clear of all
mechanic's liens, and other liens on account of work
done for Tenant or persons claiming under it. Tenant
shall indemnify and hold Landlord harmless against any
liability, loss, damage, costs or expenses, including
attorneys fees, on account of any claims of any natures
whatsoever relating to Tenant Alterations, including
claims of liens of laborers or materialmen or others for
work performed for, or materials or supplies furnished
to Tenant or persons claiming under Tenant. All Tenant
Alterations (whether temporary or permanent in
character) made in or upon the Premises, either by
Landlord or Tenant, shall be Landlord's property on
termination of this Lease and shall remain on the
Premises, without compensation to Tenant.
7.2 Tenant Fixtures and Other Property. All built-in
furniture, cabinetwork, movable business and trade
fixtures and equipment installed by Tenant shall be
removed by Tenant at the termination of this Lease if
Tenant so elects, and shall be so removed if required by
Landlord, or if not so removed, shall, at the option of
Landlord, become the property of Landlord. All such
removals and restoration shall be accomplished in good
and workmanlike manner so as not to damage the Premises
or the Project. Any damage to the Premises caused by
installation, alteration or removal of Tenant's fixtures
or equipment shall be repaired at the expense of Tenant.
8.
ASSIGNMENT AND SUBLETTING
8.1 Prohibition of Assignment and Other Transfers.
Tenant shall not, except as otherwise provided herein,
without the prior written consent of Landlord: (a)
assign, mortgage, pledge, encumber or otherwise transfer
this Lease or any interest under the Lease; or (b)
sublease all or any part of the Premises. The consent
of Landlord to any assignment, other transfer or
sublease of this Lease and the term and estate hereby
granted shall not relieve Tenant of the obligation to
obtain such consent to any further assignment or other
transfer.
8.2 Proposed Assignment and Subleases. If Tenant desires
to assign or sublease this Lease or any part hereof,
then at least thirty (30) days, but not more than one
hundred eighty (180) days, prior to the date, when
Tenant desires the assignment or sublease to be
effective (the "Transfer Date"), Tenant shall give
Landlord a Notice (the "Assignment Notice") which shall
set forth the name, address and business of the proposed
assignee or sublessee, the Transfer Date, information
(including references) on the credits and financial
condition of the proposed assignee or sublessee and such
other material as Landlord shall reasonably require.
Landlord shall within thirty (30) days following the
Assignment Notice notify Tenant in writing that Landlord
elects to (a) either disapprove the proposed assignee or
sublessor; (b) terminate this Lease as to the space so
affected as of the date so specified by Tenant, in which
event Tenant will be relieved of all further obligation
hereunder as to such space; or (c) permit Tenant to
assign or sublet such space to the proposed assignee or
sublessee. If Landlord shall fail to notify Tenant in
writing of such election within said thirty (30) day
period, Landlord shall be deemed to have elected to
approved the proposed assignee or sublessee. If the
Rent agreed to by Tenant and its subtenant and assignee
is greater than the rent payable under this Lease, such
excess Rent shall be paid to Landlord at the same time
and in the same manner as the Basic Rent.
8.3 Tenant to Remain Liable. Notwithstanding any
assignment or subletting, Tenant and any guarantor of
Tenant's obligations under this Lease shall at all times
remain fully responsible and liable for the payment of
all Rent under this Lease and for compliance with all of
Tenant's other obligations under this Lease.
8.4 Landlord's Assignment. Landlord may sell,
transfer, mortgage, encumber or assign the Project or
this Lease. Within ten (10) days after request by
Landlord, upon such sale, transfer, mortgage,
encumbrances or assignment, by Landlord, Tenant shall
execute, acknowledge and deliver a certificate
("Estoppel Certificate") in recordable form certifying:
the capacity of the person executing such certificate
and that such person is duly authorized to execute it on
behalf of Tenant; the commencement date of this Lease
and the date upon which the Term expires; that this
Lease is unmodified and in full force and effect (or if
modified, in full force and effect as modified); that
Landlord is not in default thereunder, that there are no
defenses or offsets thereto known to Tenant (if such be
the case); and the date to which Rent has been paid.
9.
USE OF THE PREMISES
9.1 Legal Use and violations of Insurance Coverage.
Tenant shall use the Premises in a careful, safe and
proper manner and shall not occupy or use, or permit any
portion of the Premises to be occupied or used, for any
business or purpose which is unlawful or deemed to be
disreputable in any manner, nor shall Tenant permit
anything to
be done which will in any way increase the risk of fire,
any hazard, loss of rent, casualty or other loss of
value to the Project, and/or its contents, and in the
event that, by reason and acts of Tenant, there shall be
any increase in the rate of any insurance policy on the
Project or its contents, created by Tenant's acts or
conduct of business, then Tenant hereby agrees, upon
documentation of such increase by Landlord, to pay such
increases as Additional Rent.
9.2 Nuisance; Rules and Regulations. Tenant shall
conduct its business in such manner as not to create any
nuisance, or interfere with, or disturb any other
Tenant, or Landlord in its management of the Project.
Tenant shall observe and comply with the Rules and
Regulations set forth in attached Exhibit A and such
other and further reasonable Rules and Regulations which
Landlord at any time may make and communicate to Tenant
and apply to Tenants and occupants of the Project
generally and which, in the reasonable judgment of
Landlord, shall be necessary for the operation,
maintenance, reputation or appearance of the Project.
10.
INDEMNITY/LIABILITY
10.1 Indemnity By Tenant. Tenant shall indemnify, defend,
protect, and hold harmless Landlord from and against any
and all claims, losses, proceedings, damages, causes of
action, liability, costs and expenses (including
attorney's fees) arising from or in connection with, or
caused by any act, omission or negligence of Tenant or
any sublessee of Tenant, or their respective
contractors, licensees, invitees, agents, servants or
employees, on or about the Premises or the Project, to
the extent permitted by law; and if any action or
proceeding be brought against Landlord by reason of any
such claim, Tenant upon notice from Landlord, shall
defend the same at Tenant's expense by counsel
satisfactory to Landlord. Tenant, as a material part of
the consideration to Landlord, hereby assumes all risk
of damage to property or injury to persons in, upon or
about the Premises arising from any cause other than
Landlord's gross negligence or wilful misconduct, and
Tenant hereby waives all claims in respect thereof
against Landlord. These provisions are in addition to,
and not in lieu of, the insurance required to be
provided elsewhere in this Lease.
10.2 Landlord Not To Have Liability. Tenant hereby
assumes all risks and liabilities of a landowner in the
possession, use or operation of the Premises. Tenant
hereby agrees that Landlord shall not be liable for
injury to Tenant's business or any loss of income
therefrom or for damages to the goods, wares,
merchandise or other property of Tenant, Tenant's
employees, invitees, customers, contractors, workers, or
any other person in or about the Premises, nor shall
Landlord be liable for injury to the person of Tenant,
Tenant's employees, agents or contractors, where such
damage or injury is caused by or results from fire,
steam, electricity, gas, water or rain, or from the
breakage, leakage, obstruction or other defects of
pipes, sprinklers, wires, appliances, plumbing,
air-conditioning or lighting fixtures, or from any other
cause, whether the said damage or injury results from
conditions arising upon the Premises or from other
sources or places and regardless of whether the cause of
such damage or injury or the means of repairing the same
is inaccessible to Tenant. Landlord shall not be liable
or responsible for any injury, loss or damage to any
property or person occasioned by theft, fire, act of
God, public enemy, injunction, riot, strike,
insurrection, war, court order, requisition, or order of
governmental body of authority, or other matter beyond
the control of Landlord. Nothing contained herein shall
be construed as excusing Landlord from liability for its
gross negligence or intentional misconduct.
10.3 Mutual Release and Waiver of Subrogation. Landlord
and Tenant each hereby waives, and releases the other
from any claim or liability for damage to such party's
property occurring during the Term which is covered by
insurance. Each party shall cause the property hazard
insurance carried by it, with respect to the Project,
the Premises or such party's other property located
therein, to be endorsed, if necessary, to prevent any
invalidation of such insurance by reason of the waivers
and releases contained in this Section, provided such
endorsement can be obtained at no cost. If additional
costs are involved, the party carrying such insurance
shall give the other party the opportunity to apply for
such endorsement.
10.4 Transfer of Ownership. Upon the sale or transfer of the
Project, the obligations and duties, of the Landlord
selling or transferring the Project under the Lease
shall terminate, except as to liabilities that shall
have accrued prior to the transfer or which are the
result of the conduct of that Landlord.
10.5 Express Agreement. This Lease shall be considered an
express agreement governing any case of damage to or
destruction of the Project or the Premises by fire or
other casualty, and any law which purports to govern the
rights of Landlord and Tenant in such a contingency in
the absence of express agreement, and any successor or
other law of like import shall have no application.
11.
ACCESS FOR REPAIRS AND INSPECTION
Landlord and Landlord's agents shall have the right to
enter the Premises at all reasonable hours to examine
them, to show them to prospective purchasers, mortgagees
or Tenants, and to make and perform such cleaning,
maintenance, repairs, alterations, improvements or
additions as Landlord may deem necessary or desirable
for the safety, improvement, or preservation of the
Premises or of other portions of the Project, without
such acts constituting an eviction of Tenant in whole or
in part or entitling Tenant to any abatement of rent by
reason of loss or interruption of business of Tenant, or
otherwise. If Tenant shall not be personally present to
open and permit an entry in the Premises, at any time
when for any reason an entry therein shall be necessary
or permissible, Landlord or Landlord's agents may enter
the Premises by use of a master key, or in any emergency
may forcibly enter the Premises, without rendering
Landlord or Landlord's agents liable therefor (provided
that during such entry Landlord or Landlord's agents
shall accord reasonable care to Tenant's property), and
without in any manner affecting the obligations and
covenants of this Lease. Landlord shall have the right
to erect, build, use and maintain unexposed pipes, ducts
and conduits in and through the Premises.
12.
FIRE AND OTHER CASUALTY
12.1 Major Casualty. If the Premises, or the Project, shall
be so damaged by fire or other casualty as to render the
Premises untenantable, and if such damage shall be so
great that an architect selected by Landlord shall
certify in writing to Landlord that the Premises, with
the exercise of reasonable diligence, but without the
payment of overtime or other premiums, cannot be made
Tenantable within one hundred twenty (120) days from the
happening of the fire or other casualty, or if insurance
proceeds are not made available to Landlord for repair
of such damages, then, in either event, this Lease may
be terminated by Landlord as of the date of the
occurrence of the fire or other casualty by giving
thirty (30) days written notice to Tenant of such
termination. Upon such notice of termination, Tenant
shall surrender to Landlord
the Premises and all interest therein under this Lease,
and Landlord may re-enter and take possession of the
Premises and remove Tenant therefrom. Landlord and
Tenant shall be free and discharged from all obligations
arising under this Lease after the date of such
termination. If, however, the damages shall be such
that Landlord's architect shall certify that the
Premises can be made Tenantable within the one hundred
twenty (120) day period from the happening of the fire
or other casualty and insurance proceeds are made
available to Landlord for repair of such damage or if
Landlord does not terminate this Lease as set forth
above, then, except as hereinafter provided, Landlord
shall, with reasonable promptness, repair the damage so
done except that Landlord shall not be required to
repair, replace or restore any items which Tenant is
obligated to repair or replace. Until such repair is
substantially completed, the Base Rent shall be abated
in proportion to the part of the Premises which is
unusable by Tenant in the reasonable conduct of its
business or profession. There shall be no abatement of
Base Rent by reason of any portion of the Premises being
unusable for a period of fifteen (15) days or less. If
the damage is due to the fault or negligence of Tenant
or Tenant's employees, agents or invitees, there shall
be no abatement of Base Rent.
12.2 Reparable Casualty. If the Premises, without
the fault or negligence of Tenant, shall be damaged by
fire or other casualty but not so as to render them
untenantable and insurance proceeds are made available
to Landlord, Landlord shall cause the damage to be
repaired with reasonable promptness and there shall be
no abatement of Base Rent or any other amounts due under
this Lease. If the fire or other casualty causing
damage to the Premises or other parts of the Project
have been caused by Tenant or Tenants employees, agents
or invitees, such damage shall be repaired by Landlord
and the amount paid for such repair shall be immediately
due from Tenant to Landlord with interest at the
Default Rate from the dates of Landlord's payments.
12.3 Landlord's Election. If the Project is so damaged by
fire or other casualty (although the Premises are
unaffected by such fire or other casualty, or if
affected, can be repaired within one hundred twenty
(120) days) that Landlord shall deem it advisable to
reconstruct, rebuild or raze the Project, then,
notwithstanding anything contained herein to the
contrary, this Lease may be terminated by Landlord as of
the date of the occurrence of the fire or other casualty
by giving written notice to Tenant of such termination
within thirty (30) days after the occurrence of the fire
or other casualty. Upon such notice of termination,
Tenant shall surrender to Landlord the Premises and all
interest therein under this Lease, and Landlord may
re-enter and take possession of the Premises and remove
Tenant therefrom. Landlord and Tenant shall be free and
discharged from all obligations arising hereunder after
the date of such termination.
13.
CONDEMNATION
13.1 Condemnation. Upon any taking under the power of
eminent domain, or sale under threat of the exercise of
said power ("Condemnation") of the whole or a
substantial part of the Project, the Premises or the
parking area that shall substantially interfere with
Tenant's use and occupancy of the balance thereof, this
Lease shall, at the election of either Tenant or
Landlord exercised by either party giving written notice
to the other of such termination, terminate as of the
date the condemning authority takes title or possession,
whichever first occurs. Upon Condemnation of any part
of the Project which shall not render the Premises
untenantable, Landlord shall have the right, at its
option, to terminate this Lease as of the date the
condemning authority takes title or possession,
whichever first occurs. No award from the condemning authority
shall be apportioned, and Tenant hereby assigns to Landlord any
award which may be made, together with any and all rights of
Tenant now or hereafter arising in or to such award or any part
thereof; provided, however, that Tenant may receive any award
for Tenant's property and fixtures removable by Tenant at the
expiration of the Term under the terms of this Lease, or for
the interruption of, or damage to Tenant's business or for
relocation expenses recoverable against the condemning authority.
13.2 Restoration After Partial Taking. If there is a
Condemnation which does not result in a termination of
this lease, Landlord shall, to the extent of any funds
received from the condemning authority for repair or
restoration, restore the Project or Premises
substantially to their condition prior to such partial
Condemnation and Rent shall be abated in the proportion
which the square footage of the part of the Premises so
made unusable bears to the amount of useable square
footage immediately prior to the Condemnation. No
temporary taking of a part of the Premises or of the
Project shall give Tenant any right to terminate this
Lease or to any abatement of Rent.
14.
LIEN FOR RENT
In consideration of the mutual benefits arising under
this contract, Tenant grants a security interest to
Landlord in all property of Tenant now or hereafter
placed in or upon the Premises and such property is
hereby subjected to a lien in favor of Landlord and
shall be and remain subject to such lien of Landlord for
payment of all rents and other sums agreed to be paid by
Tenant herein. Such liens shall be in addition to the
cumulative of the Landlord's liens provided by law.
Promptly upon request by Landlord, Tenant shall execute
any UCC-1 Financing Statement evidencing and perfecting
said lien.
15.
HOLDOVER
If Tenant or any person claiming through or
under Tenant is in possession of any part of the
Premises after the expiration of the term, with
or without the express or implied consent of
Landlord, such tenancy shall be from
month-to-month only, and not a renewal of this
Lease or an extension for any further term, and
such month-to-month tenancy shall be subject to
each and every term, covenant and agreement
contained herein, except that Base Rent shall be
increased to one hundred fifty percent (150%) of
the amount of Base Rent payable by Tenant during
the last month of the Term. Nothing in this
Section shall be construed as a consent by
Landlord to any continued possession by Tenant
and Landlord expressly reserves the right to
require Tenant to surrender possession of the
Premises upon the expiration of the Term or upon
the earlier termination hereof and to assert any
remedy in law or equity to evict Tenant and/or
collect damages in connection with such
continued possession.
16.
INSURANCE
16.1 Landlord's Insurance. Landlord shall at all times
during the term of the lease, as an operating cost,
procure and maintain in force and effect a Broad Form
policy or policies of insurance covering the Project.
At Landlord's option, Landlord may procure endorsements
thereon for flood, earthquake, tornado, theft and
collapse, or such other coverages as Landlord deems
appropriate. Landlord may also obtain a Comprehensive
Package policy of
liability insurance (including contractual liability),
employer's liability insurance, excess liability insurance and
such other insurance as Landlord deems necessary or
appropriate. Any insurance carried by Landlord may be under a
blanket policy (or policies) covering other properties of
Landlord and/or its related or affiliated entities.
16.2 Tenant's Insurance - Liability. Tenant shall keep
in force with respect to the Premises and Tenant's
business and other activities therein Commercial Package
liability insurance, including contractual and personal
injury liability, payable on an occurrence basis, with a
minimum combined limit of $1,000,000, naming Landlord
and Landlord's manager for the Project as additional
insureds.
16.3 Tenant's Insurance - Other: Tenant shall carry and
maintain a Broad Form policy of insurance covering all
of Tenant's property and all alterations, additions or
improvements permitted under this Lease, from time to
time in, on or upon the Premises in an amount not less
than ninety percent (90%) of their full replacement cost
from time to time during the term of this Lease,
providing coverage for sprinkler damage, vandalism and
malicious mischief. Such insurance shall name Landlord
and Landlord's manager for the Project as additional
insureds.
16.4 Evidence of Insurance. Tenant shall deliver to Landlord
policies or duly executed certificates of insurance.
Renewals shall be delivered to Landlord at least ten
(10) days prior to the expiration of the respective
policy terms.
16.5 No Representation of Adequate Coverage. Landlord
makes no representation that the limits or forms of
coverage of insurance specified in this Paragraph 16 are
adequate to cover Tenant's property or obligations under
this lease.
17.
DEFAULT
The occurrence of any one or more of the events set
forth in Sections 17.1, 17.2 and 17.3 shall constitute a
material default and breach of this Lease by Tenant.
17.1 Non-Payment of Rent. The failure of Tenant to make any
payment of Rent as and when due, where such failure
shall continue for a period of three (3) days after
notice from Landlord that said payment is delinquent.
17.2 Breach. The failure by Tenant to observe or perform any
of the covenants, conditions or provisions of the Lease
to be observed or performed by Tenant, other than the
failure to pay Rent where such failure shall continue
for a period of ten (10) days after written notice
thereof from Landlord to Tenant.
17.3 Insolvency. (a) The making by Tenant of any
general arrangement or assignment for the benefit of
creditors; (b) Tenant becomes a "debtor" as defined in
11 U.S.C. Section 101 or any successor statute thereto
(unless, in the case of a petition filed against Tenant,
the petition is dismissed within thirty (30) days; (c)
the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets
located at the Premises or of Tenant interest in this
Lease, where possession is not restored to Tenant within
fifteen (15) days; or (d) 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 fifteen (15) days.
17.4 Abandonment. The abandonment or vacation of the
Premises by Tenant.
17.5 Remedies. Upon default by Tenant, Landlord shall
have the right, but not the obligation, to re-enter and
take the Premises and resume possession thereof and
thereafter to relet same for the remainder of the period
of the Term specified in this Lease; and if the Rent
received through such reletting is not at least equal to
the Rent provided for in this Lease, Tenant shall pay
and satisfy any deficiencies between the amount of the
Rent called for and that received through reletting, and
all expenses incurred as a result of such reletting
including, but not limited to the cost of renovating,
altering, and decorating for a new occupant. Nothing
herein shall be construed as in any way denying Landlord
the right, in case of any default by Tenant to treat the
default as an entire breach of the Lease and at
Landlord's option immediately xxx for any and all
damages occasioned by Landlord thereby. Should Landlord
terminate this Lease and thereafter seek relief pursuant
to Section 1951.2 of the California Civil Code, interest
shall be allowed upon unpaid rent, and/or late
penalties, etc., for the purposes of Section 1941.2(b),
at ten percent (10%) per annum. Any proof by Tenant
under subparagraphs (2) or (3) of subdivision (a) of
Section 1951.2 of the California Civil Code, as the
amount of rental loss that could be reasonably avoided,
shall be made in the following manner: Landlord and
Tenant shall each select a licensed real estate broker
in the business of renting property of the same use as
the Premises and in the same geographic vicinity, and
such two real estate brokers shall select a third
licensed real estate broker and the three licensed real
estate brokers so selected shall determine the amount of
the rental loss that could be reasonably avoided for the
balance of the term of this Lease after the time of
award. The decision of the majority of said licensed
real estate brokers shall be final and binding upon the
parties hereto. Until Landlord elects to terminate this
lease, Landlord shall have the remedy provided for in
Section 1951.4 of the of the California Civil Code.
17.6 Late Charges. Tenant acknowledges that late payment by
Tenant to Landlord of Base Rent, operational expenses or
other monies that come due from time to time will cause
Landlord to incur costs not contemplated by this lease.
The exact amount of said costs will be difficult to
ascertain. Such costs would include processing and
accounting charges, late charges which may be imposed on
Landlord by the terms of any mortgage or ground lease
covering this Project. Accordingly, if any installment
of Base Rent, Additional Rent or operating expenses due
from Tenant shall not be received by Landlord or his
designee within ten (10) days after such amount shall be
due, then without further notice or demand Tenant shall
pay to Landlord a late charge of Ten Percent (10%) of
such overdue amount. Both parties agree that such late
charge represents a fair and reasonable estimate of the
costs that Landlord will incur by reason of the late
payment by Tenant. Acceptance of a late charge by
Landlord shall in no event constitute a waiver of
Tenant's default with respect to such overdue amount,
nor prevent Landlord from exercising any other rights
and remedies he may have under this Lease.
18.
OPERATING EXPENSES
18.1 Operating Expenses Defined. "Operating Expenses", as
used in this Lease, means all amounts paid or accrued by
Landlord per calendar year for the operation and
maintenance of the Project or the land on which it is
situated, and the equipment, fixtures and facilities
used in connection therewith, including the parking
area. Operating Expenses includes, but is not limited
to the cost of utilities, building supplies, janitorial
and window cleaning services, normal maintenance and
repair of the Project and the common areas (including
elevators, if any, and the periodic refurbishing of the
common areas), heating and air-conditioning,
waste disposal, lighting, maintenance of fire protection and
security systems, planting and landscaping, landscape
maintenance, taxes (defined below), insurance premiums
(including boiler and machinery, fire and extended coverage,
earthquake, flood, rental and public liability insurance), and
all labor, supplies, materials, tools, professional fees,
management fees, wages, salaries and payroll burden of the
Project manager, clerical maintenance and other employees
directly associated with the operation of the Project,
(including Project office rent or rental value, office supplies
and materials, and all other items constituting operating and
maintenance costs in connection with the Project and land
according to generally accepted accounting principles).
Operating Expenses shall not include the following: (a)
depreciation of the Project, (b) leasing commissions, (c)
repairs and restorations paid for by the proceeds of any
insurance policy or (d) construction of improvements of a
capital nature, except for the cost, or a portion thereof
properly allocable to the Project, of any capital improvements
made to the Project specifically to reduce Operating Expenses,
or required to be made to the Project specifically to reduce
Operating Expenses, or required to be made to the Project under
any governmental law or regulation not applicable to the
Project at the time it was constructed. Such cost shall be
amortized over such reasonable period of time as Landlord shall
determine, (e) ground rent, (f) debt service, (g) income and
franchise taxes other than that portion, if any, of income and
franchise taxes which may hereinafter be assessed and paid in
lieu of or as a substitute in whole or in part for Taxes.
18.2 Personal Property Taxes. Tenant shall be liable for
and shall pay before delinquency all taxes, and
penalties and interest thereon, if any, levied against
Tenant's furniture, trade fixtures and equipment, and
any other personal property of Tenant situated or
installed in and upon the Premises. For the purposes of
determining the amount of such taxes, figures supplied
by the county assessor's office or other taxing
authority as to the amount thereof shall be conclusive.
19.
SECURITY DEPOSIT
Concurrently with the execution of this Lease, Tenant
shall deliver to Landlord in good funds, the sum of
$4,000.00 to be held by Landlord as security for the
full and faithful performance of every provision of this
Lease (the "Security Deposit"). If Tenant defaults with
respect to any provision of this Lease, including but
not limited to the provisions relating to the payment of
Rent, Landlord may use, apply or retain all or any part
of the Security Deposit for the payment of any Rent or
for the payment of any other amount which Landlord may
spend or become obligated to spend by reason of Tenant's
default or to compensate Landlord for any other loss,
cost or damage which Landlord may suffer by reason of
Tenant's default. If any portion of the Security
Deposit is so used or applied, Tenant shall, within five
(5) days after written demand therefor deposit cash with
Landlord in an amount sufficient to restore the Security
deposit to the amount first deposited, and Tenant's
failure to do so shall be a material breach of this
Lease. Should Tenant faithfully perform all of the
terms, covenants and conditions of this Lease and be in
possession of the Premises at the end of the Term, the
amount of the Security Deposit shall be repaid by
Landlord to Tenant at the end of the Term.
20.
UNDERLYING MORTGAGES
20.1 Subordination. This Lease and the term and estate hereby
granted are and shall be subject to subordinate to the
lien of each mortgage which may now or at any time
hereafter affect Landlord's interest in the Project, (an
"underlying Mortgage") at the option of the Landlord or
Landlord's Mortgagee, regardless of the interest rate,
the terms or repayment, the use of the proceeds or any
other provision of any such mortgage. Each holder of
each Underlying Mortgage shall have the right,
exercisable at such holders' sole option at any time, to
cause any of the Underlying Mortgages which such holder
owns to be and become subordinate and inferior to the
lien and charge of this Lease by delivering Notice of
such exercise to Tenant. Tenant shall from time to time
execute and deliver such instruments as Landlord or the
holder of any Underlying Mortgage, may reasonably
request to confirm the status of this Lease as provided
in this Section 20.
20.2 Attornment to Mortgagee. Tenant confirms that if by
reason of a default under any Underlying Mortgage the
holder of such Underlying Mortgage or its successor or
assignee in interest becomes the Landlord hereunder,
Tenant shall attorn to, and shall recognize such holder
as Tenant's Landlord under this Lease. Tenant shall
execute and deliver, at any time and from time to time,
upon request of Landlord or of the holder of any
Underlying Mortgage, an instrument which may be
reasonably necessary or appropriate to evidence such
attornment. Tenant waives the provisions of any statute
or rule of law now or hereafter in effect which may give
or purpose to give Tenant any right or election to
terminate this Lease or to surrender possession of the
Premises in the event any proceeding is brought by the
holder of the Underlying Mortgage to acquire Landlord's
interest hereunder.
20.3 Landlord's Default. In the event of any act or
omission by Landlord which pursuant to this Lease or by
law would give Tenant the right to terminate this Lease,
Tenant shall not exercise such right unless or until (a)
it has given written Notice of such act or omission to
the holder of each Underlying Mortgage who has
previously given Tenant written Notice of the existence
of such Underlying Mortgage and (b) a reasonable period
of time for remedying such act or omission shall have
elapsed following the giving of such Notice.
20.4 Non-Disturbance. Notwithstanding anything
contained in this Section, as a condition to the
attornment of subordination obligations set forth in
this Section, this Lease and the leasehold estate hereby
created shall not be extinguished or terminated or the
possession or the right of Tenant (including the rights
with respect to enjoyment and removal of Tenant's
property) be disturbed so long as this Lease shall be in
force and no material default by Tenant exists and the
Underlying Mortgagee shall enter into a non-disturbance
and attornment agreement at the request of Tenant in
form and substance reasonably acceptable to Tenant,
Landlord and such Underlying Mortgagee.
20.5 Estoppel Certificates. Tenant shall promptly upon
request of Landlord, delivery to Landlord for the holder
of the Underlying Mortgage an Estoppel Certificate.
21.
PARKING PROVISIONS
21.1 Unassigned Parking. Tenants at the XXXX XXXXX
EXECUTIVE GUILD have the right to the use of four (4)
parking spaces per 1,000 sq. ft. of rentable space.
Tenant shall have the right to use eight (8) unassigned
automobile parking spaces located on the uncovered
surface parking area for which there shall be no monthly charge.
21.2 Landlord Not To Be Liable. Tenant, its agents,
employees, customers, business invitees, and all persons
using the drives and parking areas do so at their own
risk and Landlord shall not be responsible for, or in
any way have any obligation or liability for, any
damage, loss, theft, or injury to any vehicle or other
equipment, any contents thereof or any other personal
property or for the death or injury to any person while
located in or entering or exiting any portion of the
drives and parking area. Landlord shall have the right
at any time to change the arrangement or location of the
assigned or unassigned spaces without incurring any
liability to Tenant or entitling Tenant to any abatement
of any parking fee.
22.
HAZARDOUS MATERIALS
22.1 Landlord's Representation and Indemnity as to Hazardous
Materials. Landlord represents and warrants that no
Hazardous Materials are present on or affect the
Premises or the Project, and Landlord agrees to
indemnify and hold Tenant harmless for costs of any
monitoring, testing, removal cleanup or compliance with
the laws of any federal, state or local government
having jurisdiction over Hazardous Materials which
Tenant may cause or permit to be present, discharged,
stored or disposed on the Premises during the Term.
22.3 Freon. Tenant shall not install any freon-containing
systems or equipment, including, but not limited to,
refrigerators, freezers, supplemental HVAC systems or
self-contained air conditioners.
22.4 Hazardous Materials Defined. "Hazardous Materials", for
purposes of this Section 22, means any substance defined
as "hazardous substances", "hazardous materials",
"hazardous waste", "toxic substances", or related terms
by the California Health and Safety Code, or applicable
Federal law from time to time.
23.
RELOCATION; PROJECT NAME
23.1 Relocation. Landlord shall have the right, at any
time upon giving Tenant thirty (30) days' notice in
writing, to substitute for the Premises substantially
similar space in the Project. Substantially similar
space shall mean space that is approximately the same
size, and has substantially the same facilities.
Landlord will, as Landlord's sole cost and expense
(including the cost of relocating telephone service and
the reasonable cost of new stationary, should the Tenant
be relocated to another building or floor), move Tenant
to such substituted space. *The parties hereto agree
that, in such event, this Lease shall remain in full
force and effect and be deemed applicable to such space
designated by Landlord and such held space shall
thereafter be the Premises. Should Tenant refuse to
permit Landlord to Move Tenant to such new space at the
end of the thirty (30) day period, Landlord shall have
the right to terminate this Lease effective sixty (60)
days from the date of the original notice from Landlord.
Once Landlord gives Tenant the 30-day notice of intent
to relocate, Tenant may terminate the lease by given
written notice to the Landlord effective either at the
end of the 30-day or 60-day period after the date of the
notice of intent to relocate.
23.2 Project Name. Landlord shall have the right to name the
Project and to change the name or designation by which
the Project is commonly known at any time. Tenant shall
not use the name of the Project for any purpose other
than as the address of the business conducted by Tenant
in the Premises. Landlord shall provide a building
directory in a conspicuous place in the Project.
Landlord shall also provide one suite identification
sign adjacent to
the main entry door of the Premises in Landlord's standard size
and form. Tenant shall pay Landlord's reasonable charges for
the initial installation of the suite identification sign and
for any subsequent changes to the directory listing and
identification sign at Tenant's request.
24.
NOTICES
Any notice, demand or request provided for or permitted
to be given pursuant to this Lease must be in writing
and shall be properly given and effective when
personally served, when sent by prepaid Western Union
telegram or air courier or when deposited in an official
depository under the regular care and custody of the
United States Mail, addressed as specified below, sent
by registered or certified mail, return receipt
requested, with postage prepaid. The time period in
which a response of any such mailed Notice must be
given, however, shall commence to run from the date of
receipt on the return receipt by the Notice by the
addressee thereof. Rejection or other refusal to accept
or the inability to deliver because of changes in
address of which no notice was given shall be deemed to
be receipt of the notice. Notices shall be addressed as
follows:
To Landlord: Southern California Sunbelt
Developers, Inc. - JWA
0000 Xxxx Xxxxxxxx Xxx., Xxxxx 000
Xxxx, Xxxxxxxxxx 00000
With a copy to the leasing agent on the Premises:
Leasing Office
Xxxx Xxxxx Executive Guild
0000 Xxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Property Manager
To the Tenant at the Premises or to:
Xxxxx XxXxxxxx, C.F.O.
GTC Telecom
0000 Xxxxxx Xxxxxx, Xxxxx X-0
Xxxxx Xxxx, Xxxxxxxxxx 00000
Notice of change of address shall be given in the same
manner as prescribed herein for other Notices.
25.
BROKER'S OR AGENT'S COMMISSION
There are no claims for brokerage commission or finder's
fees in connection with the execution of this Lease,
except as listed below, and Tenant agrees to indemnify
Landlord and hold Landlord harmless against all
liabilities and costs arising from such claims,
including without limitation attorneys' fees in
connection therewith.
BROKER/AGENT: Xxxxxxxx Cove Realty, Inc.
The parties hereby acknowledge that XXXXXXXX COVE
REALTY, INC., a California Corporation ("HCR"), XXX X.
XXXX, a California licensed real estate broker, has a
valid listing agreement for the subject property at the
XXXX XXXXX EXECUTIVE GUILD, and in the event a lease is
consummated with Landlord and BROKER/AGENT'S client, a
commission
will be paid to HCR by Landlord.
26.
GENERAL
26.1 Equal Employment Opportunity. The provisions of
Executive Order 11246 (as amended) of the President of
the United States on Equal employment opportunities and
the rules and regulations issued pursuant thereto are
incorporated in this lease, and Landlord represents that
it will comply with those provisions unless exempted.
26.2 Place of Performance - Governing Law. Tenant shall
perform all covenants, conditions and agreements
contained herein, including, but not limited to payment
of Rent, in Orange County, California. Any suit arising
from or relating to this Lease shall be brought in
Orange County, California. This Lease shall be governed
by and construed in accordance with the laws of the
State of California.
26.3 Severability. If any clause or provision of this Lease
is illegal, invalid or unenforceable under present or
future laws effective during the Term, then, and in that
event, the parties intend that the remainder of this
Lease shall not be affected thereby, and the parties
also intend that in lieu of each clause or provision of
this Lease that is illegal, invalid or unenforceable,
there is added as a part of this Lease a clause or
provision as similar in terms to such illegal, invalid,
or unenforceable clause or provision as may be possible
and be legal, valid and enforceable.
26.4 Inurement. Subject to the provisions of this Lease
governing assignments and transfers by Landlord and
Tenant, respectively, the terms, provisions, covenants,
and conditions contained in this Lease shall apply to,
insure to the benefit of, and be binding upon the
parties hereto, and upon their respective successors in
interest and legal representatives.
26.5 Integration. This Lease and the Exhibits thereto
constitute the entire understanding between Landlord and
Tenant. All previous conversations, memorandums, and
writings pertaining to leasing of the Premises not
incorporated or referenced in this Lease are suspended
hereby. Any modification hereto must be made by a
separate written instrument. No officer, employee or
representative of Landlord, of Landlord's Manager or of
Tenant has the authority to make any representation or
promise not already contained herein or made pursuant to
the within provisions, and Landlord and Tenant expressly
agree that by executing this Agreement, and any other
document required herein or caused to be executed hereby
that it is not doing so in reliance upon any
representation or promise which is not set forth herein.
26.6 No Waiver. No delay or failure of Landlord in
exercising any right, privilege or remedy hereunder or
any single or partial exercise of any right, power or
privilege shall preclude other or future exercise
thereof or the exercise of any other right, power or
privilege. Any waiver, permission or consent of any
kind by Landlord must be in writing and shall be
effective only to the extent provided herein.
26.7 Attorneys' Fees and Arbitration. If any litigation,
arbitration or other legal proceeding is commenced
between any of the parties or their personal
representatives concerning any provision of this lease,
or the rights and duties of any party in relation
thereto, the prevailing party in such litigation or
arbitration shall be entitled, in addition to such other
relief as may be granted, to recover their costs and
reasonable attorney's fees and expenses, as costs, in
such litigation or arbitration. If any judgment results
from such litigation or arbitration, then the prevailing party
shall be entitled to recover reasonable attorney's fees,
expenses and costs of enforcing such judgment and this
post-judgment right to attorney's fees is intended to be
severable from the other provisions of this Agreement, to
survive any judgment contained hereunder, and it is not deemed
merged into the judgment. As used herein, "reasonable
attorney's fees", "expenses", and "costs" shall mean the full
and actual costs of any legal services actually performed,
calculated on the basis of the usual fees charged and expenses
and costs incurred by the attorney performing such services.
26.8 Captions. Captions used in this Lease are for ease
of reference only and do not define or limit provisions.
26.9 Authority. If Tenant is a corporation, partnership,
trust, association or other entity, Tenant and each
person executing this Lease on behalf of Tenant hereby
covenant and warrant that (a) Tenant is duly
incorporated or otherwise established or formed and
validly existing under the laws of its state of
incorporation, establishment or formation, (b) Tenant is
duly qualified to do business in California, (c) Tenant
has full corporate, partnership, trust, association or
other appropriate power and authority to enter into this
Lease and to perform all Tenant's obligations hereunder,
and (d) each person (and all of the persons is more than
one signs) signing this Lease on behalf of Tenant is
duly and validly authorized to do so.
26.10 Submission of Lease. The submission of this Lease to
Tenant for examination or execution does not constitute
a reservation of or option on the Premises or an
agreement to lease the Premises or any other space.
This Lease shall become effective as a lease and
Landlord shall become obligated to rent space to Tenant
only upon the execution and delivery of this Lease by
Landlord and Tenant.
26.11 Exhibits. The following Exhibits are part of this
lease.
A Project Rules and Regulations
B Condominium / Sublease Rider
C Site Plan of Project
D Floor Plan of Premises
E Tenant Improvements
(Signatures Appear on Following Page)
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Landlord:
SOUTHERN CALIFORNIA SUNBELT DEVELOPERS,
INC.-JWA, a California corporation
By: /s/Xxx X. Xxxx
XXX X. XXXX, President Date: 2/9/99
Tenant:
GTC TELECOM
A Nevada corporation
By:___________________________________
____________________________
XXXX XXXXXX, President & CEO Date
______________________________________
____________________________
XXXX XXXXXX Date
______________________________________
____________________________
XXXX XXXXXXX Date
EXHIBIT "A"
PROJECT RULES AND REGULATIONS
EXHIBIT "A" to that Lease dated February 5, 0000 xxxxxxx
XXXXXXXX XXXXXXXXXX SUNBELT DEVELOPERS, INC. ("Landlord"), and
GTC TELECOM, a Nevada corporation; XXXX XXXXXXX; and XXXX
XXXXXX, jointly and severally ("Tenant") for the premises at
0000 Xxxxxx Xxxxxx, Xxxxx X-000, Xxxxx Xxxx, Xxxxxxxxxx 00000,
consisting of approximately 1,987 rentable square feet.
1) Tenant will refer all contractors, contractors'
representatives and installation technicians rendering
any service for Tenant to Landlord for Landlord's
supervision and/or approval before performance of any
such contractual services. This shall apply to all work
performed in the Project, including but not limited to
installation of telephones, telegraph equipment,
electrical devices and attachments, and installations of
any and every nature affecting floors, walls, woodwork,
trim, windows, ceilings, equipment, or any other
physical portion of the Project. No such work shall be
done by Tenant without Landlord's written approval first
had and obtained.
2) The work of the janitor or cleaning personnel shall not
be hindered by Tenant after 5:30 p.m., and such work may
be done at any time when the offices are vacant. The
windows, doors, and fixtures may be cleaned at any time.
Tenant shall provide adequate waste and rubbish
receptacles, cabinets, book cases, map cases, etc.,
necessary to prevent unreasonable hardship to Landlord
in discharging its obligations regarding cleaning service.
3) Movement in or out of the Project of furniture or office
equipment, or dispatch or receipt by Tenant of any
merchandise or materials which requires the use of
elevators or stairways, or movements through the Project
entrances or lobby shall be restricted to the hours
designated by Landlord from time to time. All such
movement shall be directed by Landlord and in a manner
to be agreed upon between Tenant and Landlord by
prearrangement before performance. Such prearrangement
initiated by Tenant shall include determination by
Landlord and be subject to its decision and control of
the time, method, and routing of movement. Limitations
are imposed by safety or other concerns which may
prohibit any articles, equipment or any other item from
being brought into the Project. Tenant expressly
assumes all risk of loss or damage to any and all
articles so moved, as well as injury to any person or
persons or the public engaged or not engaged in such
movement, including, without limitations, equipment,
property, and personnel of Landlord if damaged or
injured as a result of any acts done or undertaken in
connection with carrying out this service for Tenant
from the time of entering property to completion of the
work; and Landlord shall not be liable for the act or
acts of any person or persons so engaged in, or any
damage or loss to any property of persons resulting
directly or indirectly from any act done or undertaken
in connection with such service performed by or for Tenant.
4) No sign or signs will be allowed in any form on the
exterior of the Project or on any window or windows
inside or outside of the Project and so sign or signs,
except in uniform location and uniform style fixed by
Landlord, will be permitted in the public corridors or
on corridor doors or entrances of Tenant's space. All
"special" or large signs will be contracted for by
Landlord for Tenant at the rate fixed by Landlord from
time to time, and Tenant
will be billed and pay for such service accordingly.
Written consent from Landlord is an absolute
prerequisite for any such sign or signs Tenant may be so
permitted to use.
5) Tenant shall not operate a wholesale or retail
establishment such
as food, drink, clothing, etc., without the written consent of
Landlord first had and obtained.
6) Tenant shall not place, install or operate on the
Premises or in any part of the Project, any engine or
machinery, or conduct mechanical operations, or place or
use in or about the Premises any explosives, gasoline,
kerosene, oil, acids, caustics, or any other flammable,
explosive or hazardous material without the written
consent of Landlord first had and obtained.
7) Landlord will not be responsible for any lost or stolen
personal property, equipment, money or jewelry from
Tenant's area public rooms regardless of whether such
loss occurs when the area is locked against entry or not.
8) No birds, animals, or bicycles shall be brought into or
kept in or about the Project.
9) Landlord may permit entrance to Tenant's offices by use
of pass keys controlled by Landlord or employees,
contractors, or service personnel supervised or employed
by Landlord.
10) None of the entries, passages, doors, elevators,
elevators doors, hallways, or stairways shall be
blocked, or obstructed, nor shall any rubbish, litter,
trash or materials of any nature be placed, emptied or
thrown into these areas, nor shall such areas be used at
any time except for access or egress by Tenant, Tenant's
agents, employees or invitees.
11) Any plant brought into the Project shall be subject to
inspection by Landlord's maintenance personnel. Any
plants found to be carrying disease or pests shall be
removed from the Project immediately upon request by the
Landlord.
12) No Tenant shall at any time occupy any part of the
Project as sleeping or lodging quarters.
13) The water closets and other water fixtures shall not be
used for any purpose other than those for which they
were constructed. No person shall waste water by
interfering with the faucets or otherwise.
14) No person shall disturb the occupants of the Project by
the use of any musical instruments, the making of
raucous noises, or other unreasonable use.
15) Nothing shall be thrown out of the windows of the
Project, or down the stairways or other passages.
16) Tenant shall not store any materials, equipment,
products, etc, outside the premises as shown on the
plats attached hereto.
17) Tenant shall comply with all local and federal codes and
ordinances. In the event of fire or code problems,
Tenant shall comply with said requirements.
18) Tenant and its agents, employees and invitees shall
observe and comply with the driving and parking signs
and markers on the Project grounds and surrounding areas.
19) Directories will be placed by the Landlord at
Landlords's expense, in the Project and no other
directories shall be permitted.
20) No signs, draperies, shutters, window coverings,
decorations, hangings or obstructions of any type shall
be placed on any skylights or any doors or windows which
are visible from outside the premises without prior
written consent of the Landlord.
21) "Project Operating Hours" shall be from 7:00 a.m. to
5:30 p.m. Monday through Friday, and 8:00 a.m. to 12:00
p.m. on Saturday, but
not on Sundays, New Year's Day, Memorial Day, July 4th,
Labor Day, thanksgiving, Christmas or other legal
holidays. Landlord reserves the right to restrict entry
to the Project by unidentified persons during the hours
5:30 p.m. to 7:00 a.m., all hours Saturdays after 12:00
p.m., and all hours Sundays and legal holidays.
22) The roof is a restricted and unsafe area for
unauthorized persons. Only those specifically
authorized by Project management may enter the roof area.
23) Only those with specific authority from Project
management may enter the elevator, electrical, machine
and janitor rooms.
24) Tenant will be furnished, free of charge, eight (8) keys
to each of the following: (a) All door locks to each
Tenant premises. Extra keys may be furnished at a
reasonable charge. Tenant may not (a) copy entrance
keys; (b) Alter lock or install additional locks in any
door, unless agreed to in writing by Project management.
In such a case, work and materials will be at Tenant's
expense and Landlord will be furnished a key to the
lock. All keys furnished Tenants will be returned to
Landlord upon termination of the lease.
25) Only trucks or similar material handling equipment with
soft rubber wheels and side guards will be allowed in
the Project. No other vehicle of any kind will be
brought in by the Tenants or kept in its premises.
26) Cooking by any method other than a microwave is
prohibited. Brewing coffee, tea, hot chocolate and
similar beverages is provided: (a) Underwriter's
laboratory approved equipment are used for brewing
beverages; (b) Applicable Federal, State and City laws,
codes, ordinances, rules and regulations are followed.
27) Only telephone company technicians authorized by Project
management may enter and work in any telephone room.
Tenants who hire a telephone company to work in the
Project are responsible for notifying the company to
instruct their technicians to obtain authority from
Project management to enter telephone rooms and other
parts of the Project.
28) Packages, messages, mail, etc., must be delivered direct
to Tenant suites. Project management will not receive
or accept them for Tenants.
29) Tenants shall store their trash and garbage in their
premises in receptacles which facilitate disposal
methods in the City of Costa Mesa. Boxes, receptacles,
etc., which are used in moving Tenants in the Project
will be removed from the Project by the moving company
or Tenant will absorb the cost of removal. Disposal
cost of excessive trash or garbage beyond the normal and
ordinary garbage of an office facility will be the cost
of the Tenant.
30) Tenant shall not place a load upon any floor of the
Premises exceeding 50 lbs. of live load per square foot.
Tenant will pay the fees of the structural engineer of
the Project if structural engineering advice is
necessary in planning the positioning of heavy loads.
Business machines and mechanical equipment shall be
placed and maintained by Tenant at Tenant's expense in
settings sufficient to absorb and prevent vibration,
noise and annoyance. Safes and other heavy equipment,
the weight of which will not constitute a hazard or
damage the Project or its equipment, shall be moved
into, from or about the Project only during such hours
and in such manner as shall be prescribed by Landlord.
31) The Landlord reserves the right to rescind any of these
rules and make such other and further rules and
regulations as in the judgment of Landlord shall from
time to time be needed for safety, protection, care and
good order therein, and in protection and
comfort of its Tenants, their agents, employees and
invitees, including, but not limited to rules and
regulations regarding hours of access to the Project,
which rules when made and notice thereof given to a
Tenant shall be binding upon him in like manner as if
originally herein prescribed. In the event of any
conflict, inconsistency or other difference between the
terms and provisions of these rules and regulations and
any lease now or hereafter in effect between Landlord
and any Tenant in the Project, Landlord shall have the
right to rely on the term or provision in either such
lease or such Rules and Regulations which is most
restrictive on such Tenant and most favorable to Landlord.
32) Landlord desires to maintain high standards of
environment, comfort, and convenience for its Tenants.
It will be appreciated if any undesirable conditions or
lack or courtesy or attention by its employees is
reported directly to Landlord.
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A-4
EXHIBIT "B"
CONDOMINIUM / SUBLEASE RIDER
EXHIBIT "B" to that Lease dated February 5, 0000 xxxxxxx
XXXXXXXX XXXXXXXXXX SUNBELT DEVELOPERS, INC. ("Landlord"), and
GTC TELECOM, a Nevada corporation; XXXX XXXXXXX; and XXXX
XXXXXX, jointly and severally ("Tenant") for the premises at
0000 Xxxxxx Xxxxxx, Xxxxx X-000, Xxxxx Xxxx, Xxxxxxxxxx 00000,
consisting of approximately 1,987 rentable square feet.
RECITALS
A. Premises is a condominium which is a part of that
certain condominium project known as Executive Guild -
Costa Mesa Business Park - Phase II (the "Project").
B. The real property upon which the Project is constructed
was owned by The Irvine Company, a Michigan Corporation,
and is now assigned to the Corp. of the Presiding Xxxxxx
of the Latter Day Saints and had been leased to Shearson
American Express Mortgage Corporation ("Shearson") and
is now assigned to GE Capital under that certain
unrecorded Ground Lease, dated March 1, 1981, between
the Irvine Company, as lessor and Shearson as lessee; a
Memorandum of which was recorded on April 16, 1981, in
Book 14022, Pages 858 to 860 of Official Records of
Orange County, California (said Ground Lease and the
recorded Memorandum are hereinafter collectively
referred to as the "Ground Lease"). Landlord is a
subtenant of GE Capital Corporation as assignee under
that certain Sublease dated October 1984 (the "Shearson
Lease").
C. There has been recorded upon the Project that certain
Declaration of Restrictions, which was recorded on June
8, 1981, in Book 14091, Pages 437, et seq., of Official
Records of Orange County, California ("the Declaration
of Restrictions"); and the Declaration of Annexation,
which was recorded on June 17, 1983, as Instrument No.
83-024927 of Official Records of said County, and
Amendment there to recorded on February 14, 1983, as
Instrument No. 83-070391 of Official Records of said
County (collectively the "Declaration of Annexation, as
amended").
Accordingly, Landlord and Tenant agree as follows:
1. This Lease is a sublease and is subject and
subordinate to the terms and provisions of the
Ground Lease, the Shearson Lease, the
Declaration of Restrictions, the Declaration of
Annexation, and the Association Management
Documents. The rights of Tenant to use, occupy
and possess the Premises are subject to
Landlord's right to use, occupy, and possess the
Premises as set forth in the Ground Lease, the
Shearson Lease, the Declaration of Restrictions,
the Declaration of Annexation and the
Association Management Documents.
2. Tenant agrees to comply with all applicable
provisions of the Ground Lease, the Shearson
Lease, the Declaration of Restrictions, the
Declaration of Annexation and the Association
Management Documents. Tenants shall neither
suffer nor permit any breach of the terms and
provisions of the Ground Lease, the Shearson
Lease, the Declaration of Restrictions, the
Declaration of Annexation, or the Association
Management Documents; any breach of or default
under such terms and provisions shall represent
a material default under this lease.
3. Although care has been taken so that terms and
provisions of the Lease, and Tenant's rights
hereunder, are not in conflict under the terms
and provisions of the Ground Lease, the
Shearson Lease, the Declaration of Restrictions, the
Declaration of Annexation and/or the Association Management
Documents, to the extent that Landlord subsequently determines
that any duty of Landlord under this lease would require acts
or omissions by Landlord which would result in a breach of a
term or provision of the Ground Lease, the Shearson Lease, the
Declaration of Restrictions, the Declaration of Annexations
and/or Association Management Documents, Landlord shall be
excused from performance of any duty under this lease.
4. Landlord agrees to use its best efforts to
maintain the Ground Lease and the Shearson Lease
in full force and effect during the entire Term
of this Lease; provided, however, that if the
Ground Lease or the Shearson Lease shall for any
reason whatsoever terminate prior to its entire
Term, this Lease shall concurrently terminate.
5. In the event that Landlord is in default under
the terms or provisions of the Ground Lease, the
Shearson Lease, Declaration of Restrictions,
Declaration of Annexation and/or the Association
Management Documents by reason of the existence
or non-existence of any particular term or
provision of this Lease (but not by reason of
any act or omission taken under, or in violation
of, any particular term or provision of this
Lease), then in that event Landlord and Tenant
agree that they shall execute an amendment to
this Lease to cause the deletion or addition of
such particular term or condition as may be
required under the terms of the Ground Lease;
provided, however, that Tenant may terminate
this Lease if any amendment would materially
increase the obligations of Tenant hereunder
(for such purposes and without limitation of the
materiality standard, any amendment which would
increase Tenant's cost of occupying the Premises
more than One Thousand Dollars ($1,000.00) in
any one (1) year or which would deny Tenant the
substantial use and enjoyment of the Premises
shall be deemed material.
6. The "Premises", as it pertains to this Lease,
shall include a non-exclusive right to use the
common area of the Project, such as landscaping
and driveways, in accordance with the Ground
Lease, the Shearson Lease, the Declaration of
Restrictions, the Declaration of Annexation and
the Association Management Documents.
Landlord:
SOUTHERN CALIFORNIA SUNBELT DEVELOPERS, INC.-JWA
By: /s/Xxx X. Xxxx 2/9/99
XXX X. XXXX, President
Tenant:
GTC TELECOM
A Nevada corporation
By:___________________________________
____________________________
XXXX XXXXXX, President & CEO Date
______________________________________
____________________________
XXXX XXXXXX Date
______________________________________
____________________________
XXXX XXXXXXX Date
[Diagram of Leased Premises]
[Diagram of Site Plan]
EXHIBIT "E"
Tenant IMPROVEMENTS
GTC TELECOM, a Nevada corporation;
XXXX XXXXXXX; and XXXX XXXXXX
Jointly and Severally
Suite K-104
The following Tenant improvements to be provided to Tenant by
the Landlord, at Landlord's sole cost and expense.
None.
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