COMMERCIAL LEASE
(GENERAL FORM)
1. PARTIES.
This Lease is made and entered into this 1st day of July, 1996 by and
between 0000 Xxxxxxxx Xxxx., Inc. (hereinafter referred to as "Landlord") and
United Film Distributors, Inc. (hereinafter referred to as "Tenant").
2. PREMISES.
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, on the terms and conditions hereinafter set forth that certain real
property and the building and other improvements located thereon situated in the
City of Los Angeles, County of Los Angeles, State of CA, commonly known as
Shanalee Plaza, 1990 Westwood Blvd., Penthouse (said real property is
hereinafter called the "Premises").
3. TERM.
The term of this Lease shall be for 5 years, commencing on July 1, 1996
and ending on June 30, 2001, unless sooner terminated as hereinafter provided.
4. RENT.
Tenant shall pay Landlord as rent for the Premises the following sums
per month, in advance on the first day of each month during the term of this
Lease:
During the first through second year of the term of this Lease, the
sum of Three Thousand Five Hundred and xx/100 ($3,500) dollars per
month.
During the 3rd through fifth year of the term of this Lease, the sum
of Three Thousand Eight Hundred and Fifty xx/100 ($3,850) dollars per
month.
During the _________ through _________ year of the term of this Lease,
the sum of ($______________) dollars per month.
Tenant shall pay to Landlord upon the execution of this Lease the sum of Three
Thousand Five Hundred Dollars ($3,500) dollars as rent for July 1996.
Rent for any period during the term of this Lease which is for less than one (1)
month, shall be a pro rata portion of the monthly installment. Rent shall be
payable without notice or demand and without any deduction, off-set, or
abatement in lawful money of the United States to the Landlord at the address
stated herein for notices or to such other persons or such other places as the
Landlord may designate to Tenant in writing.
5. SECURITY DEPOSIT.
Tenant shall deposit with Landlord upon the execution of this Lease the
sum of Nil ($0) dollars as a security deposit for the Tenant's faithful
performance of the provisions of this Lease. If Tenant fails to pay rent or
other charges due hereunder, or otherwise defaults with respect to any provision
of this Lease, Landlord may use the security deposit, or any portion of it, to
cure the default or compensate Landlord for all damages sustained by Landlord
resulting from Tenant's default. Tenant shall immediately on demand pay to
Landlord the sum equal to that portion of the security deposit expended or
applied by Landlord which was provided for in this paragraph so as to maintain
the security deposit in the sum initially deposited with Landlord. Landlord
shall not be required to keep the security deposit separate from its general
account nor shall Landlord be required to pay Tenant any interest on the
security deposit. If Tenant performs all of Tenant's obligations under this
Lease, the security deposit or that portion thereof which has not previously
been applied by the Landlord, shall be returned to Tenant within fourteen (14)
days after the expiration of the term of this Lease, or after Tenant has vacated
the Premises, whichever is later.
6. USE.
Tenant shall use the Premises only for General Office Purposes and for
no other purpose without the Landlord's prior written consent.Tenant shall not
do, bring or keep anything in or about the Premises that will cause a
cancellation of any insurance covering the Premises or the building in which the
Premises are located. If the rate of any insurance carried by the Landlord is
increased as a result of Tenant's use, Tenant shall pay to Landlord within ten
(10) days after written demand from Landlord, the amount of any such increase.
Tenant shall comply with all laws concerning the Premises or Tenant's use of the
Premises, including without limitation, the obligation at Tenant's cost to
alter, maintain, or restore the Premises in compliance and conformity with all
laws relating to the condition, use, or occupancy of the Premises by Tenant
during the term of this Lease. Tenant shall not use or permit the use of the
Premises in any manner that will tend to create waste or a nuisance or, if there
shall be more than one tenant of the building containing the Premises, which
shall unreasonably disturb any other tenant.
Tenant hereby accepts the Premises in their condition existing as of
the date that Tenant possesses the Premises, subject to all applicable zoning,
municipal, county and state laws, ordinances, regulations governing or
regulating the use of the Premises and accepts this Lease subject thereto and to
all matters disclosed thereby. Tenant hereby acknowledges that neither the
Landlord nor the Landlord's agent has made any representation or warranty to
Tenant as to the suitability of the Premises for the conduct of Tenant's
business.
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7. TAXES.
(a) Real Property Taxes.
Landlord shall pay all real property taxes and general assessments
levied and assessed against the Premises during the term of this Lease.
If it shall be Tenant's obligation to pay such real property taxes and
assessments hereunder, Landlord shall use its best efforts to cause the Premises
to be separately assessed from other real property owned by the Landlord. If
Landlord is unable to obtain such a separate assessment, the assessor's
evaluation based on the building and other improvements that are a part of the
Premises shall be used to determine the real property taxes. If this evaluation
is not available, the parties shall equitably allocate the property taxes
between the building and other improvements that are a part of the Premises and
all buildings and other improvements included in the tax xxxx. In making the
allocation, the parties shall reasonably evaluate the factors to determine the
amount of the real property taxes so that the allocation of the building and
other improvements that are a part of the Premises will not be less than the
ratio of the total number of square feet of the building and other improvements
that are a part of the Premises bears to the total number of square feet in all
buildings and other improvements included in the tax xxxx.
Real property taxes attributable to land in the Premises shall be
determined by the ratio that the total number of square feet in the Premises
bears to the total number of square feet of land included in the tax xxxx.
(b) Personal Property Taxes.
Tenant shall pay prior to the delinquency all taxes assessed against
and levied upon the trade fixtures, furnishings, equipment and other personal
property of Tenant contained in the Premises. Tenant shall endeavor to cause
such trade fixtures, furnishings and equipment and all other personal property
to be assessed and billed separately from the property of the Landlord. If any
of Tenant's said personal property shall be assessed with Landlord's property,
Tenant shall pay to Landlord the taxes attributable to Tenant within ten (10)
days after the receipt of a written statement from Landlord setting forth the
taxes applicable to Tenant's property.
8. UTILITIES.
Tenant shall make all arrangements and pay for all water, gas, heat,
light, power, telephone and other utility services supplied to the Premises
together with any taxes thereon and for all connection charges. If any such
services are not separately metered to Tenant, the Tenant shall pay a reasonable
proportion, to be determined by Landlord, of all charges jointly metered with
other premises.
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9. MAINTENANCE AND REPAIRS.
(a) Landlord's Obligations.
Except as provided in Article 12, and except for damage caused by any
negligent or intentional act or omission of Tenant, Tenant's agents, employees,
or invitees, Landlord at its sole cost and expense shall keep in good condition
and repair the foundations, exterior walls, and exterior roof of the Premises.
Landlord shall also maintain the unexposed electrical, plumbing and sewage
systems including, without limitation, those portions of the systems lying
outside the Premises; window frames, gutters and down spouts on the building,
all sidewalks, landscaping and other improvements that are a part of the
Premises or of which the Premises are a part. The Landlord shall also maintain
the heating, ventilating and air-conditioning systems servicing the Premises.
Landlord shall resurface and restripe the parking area on or adjacent to the
Premises when necessary. Landlord shall have thirty 130) days after notice from
Tenant to commence to perform its obligations under this Article 9, except that
Landlord shall perform its obligations immediately if the nature of the problem
presents a hazard or emergency situation. 11 the Landlord does not perform its
obligations within the time limit set forth in this paragraph, Tenant can
perform said obligations and shall have the right to be reimbursed for the
amount that Tenant actually expends in the performance of Landlord's
obligations. If Landlord does not reimburse Tenant within thirty 130) days after
demand from Tenant, Tenant's sold remedy shall be to institute suit against the
Landlord, and Tenant shall not have the right to withhold from future rent the
sums Tenant has expended.
(b) Tenant's Obligations.
Subject to the provisions of Sub-paragraph la) above and Article 12,
Tenant at Tenant's sole cost and expense shall keep in good order, condition and
repair the Premises and every part thereof including, without limitation, all
Tenant's personal property, fixtures, signs, store fronts, plate glass, show
windows, doors, interior walls, interior ceiling, and lighting facilities.
If Tenant fails to perform Tenant's obligation as stated herein,
Landlord may at its option (but shall not be required to), enter the Premises,
after ten (10) days prior written notice to Tenant, put the same in good order,
condition and repair, and the costs thereof together with interest thereon at
the rate of ten (10%) percent per annum shall become due and payable as
additional rental to Landlord together with Tenant's next rental installment.
10. ALTERATIONS AND ADDITIONS.
(a) Tenant shall not, without the Landlord s prior written consent,
make any alterations, improvements or additions in or about the Premises except
for non-structural work which does not exceed $1,000.00 in cost. As a condition
to giving any such consent, the Landlord may require the Tenant to remove any
such alterations, improvements, or additions at the expiration of the term, and
to restore the Premises to their prior condition by giving Tenant thirty (30)
days written notice prior to the expiration of the term that
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Landlord requires Tenant to remove any such alterations, improvements, or
additions that Tenant has made to the Premises. If Landlord so elects, Tenant at
its sole cost shall restore the Premises to the condition designated by Landlord
in its election before the last day of the term of the Lease.
Before commencing any work relating to the alterations, additions, or
improvements affecting the Premises, Tenant shall notify Landlord in writing of
the expected date of the commencement of such work so that Landlord can post and
record the appropriate notices of non-responsibility to protect Landlord from
any mechanic's liens, materialman liens, or any other liens. In any event,
Tenant shall pay, when due, all claims for labor and materials furnished to or
for Tenant at or for use in the Premises. Tenant shall not permit any mechanic's
liens or materialman's liens to be levied against the Premises for any labor or
material furnished to Tenant or claimed to have been furnished to Tenant or
Tenant's agents or contractors in connection with work of any character
performed or claimed to have been performed on the Premises by or at the
direction of Tenant. Tenant shall have the right to assess the validity of any
such lien if, immediately on demand by Landlord, Tenant procures and records a
lien release bond meeting the requirements of California Civil Code Section 3143
and shall provide for the payment of any sum that the claimant may recover on
the claim (together with the costs of suit, if it is recovered in the action).
Unless the Landlord requires their removal as set forth above, all
alterations, improvements or additions which are made on the Premises by the
Tenant shall become the property of the Landlord and remain upon and be
surrendered with the Premises at the expiration of the term. Notwithstanding the
provisions of this paragraph, Tenant's trade fixtures, furniture, equipment and
other machinery, other than that which is affixed to the Premises so that it
cannot be removed without material or structural damage to the Premises, shall
remain the property of the Tenant and removed by Tenant at the expiration of the
term of this Lease.
11. INSURANCE; INDEMNITY.
(a) Fire Insurance.
Tenant at its cost shall maintain during the term of this Lease on the
Premises a policy or policies of standard fire and extended coverage insurance
to the extent of at least ninety (90%) percent of full replacement value
thereof. Said insurance policies shall be issued in the names of Landlord and
Tenant, as their interests may appear.
Tenant at its cost shall maintain the during the term is this Lease on
all its personal property, Tenant's improvements, and alterations in or about
the Premises, a policy of standard fire and extended coverage insurance, with
vandalism and malicious mischief endorsements, to the extent of their full
replacement value. The proceeds from any such policy shall be used by Tenant for
the replacement of personal property or the restoration of Tenant's improvements
or alterations.
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(b) Liability Insurance.
Tenant at its sole cost and expense shall maintain during the term of
this Lease public liability and property damage insurance with a single combined
liability limit of five hundred thousand ($500,000.00) dollars, and property
damage limits of not less that one hundred thousand ($100,000.00) dollars,
insuring against all liability of Tenant and its authorized representatives
arising out of and in connection with Tenant's use or occupancy of the Premises.
Both public liability insurance and property damage insurance shall insure
performance by Tenant of the indemnity provisions in Sub-paragraph (d) below,
but the limits of such insurance shall not, however, limit the liability of
Tenant hereunder. Both Landlord and Tenant shall be named as additional
insureds, and the policies shall contain cross-liability endorsements. If Tenant
shall fail to procure and maintain such insurance the Landlord may, but shall
not be required to, procure and maintain same at the expense of Tenant and the
cost thereof, together with interest thereon at the rate of ten (10%) percent
per annum, shall become due and payable as additional rental to Landlord
together with Tenant's next rental installment.
(c) Waiver of Subrogation.
Tenant and Landlord each waives any and all rights of recovery against
the other, or against the officers, employees, agents, and representatives of
the other, for loss of or damage to such waiving party or its property or the
property of others under its control, where such loss or damage is insured
against under any insurance policy in force at the time of such loss or damage.
Each party shall cause each insurance policy obtained by it hereunder to provide
that the insurance company waives all right of recovery by way of subrogation
against either party in connection with am/ damage covered by any such policy.
(d) Hold Harmless.
Tenant shall indemnify and hold Landlord harmless from and against any
and all claims arising from Tenant's use or occupancy of the Premises or from
the conduct of its business or from any activity, work, or things which may be
permitted or suffered by Tenant in or about the Premises including all damage,
costs, attorney's fees, expenses and liabilities incurred in the defense of any
claim or action or proceeding arising therefrom. Except for Landlord's willful
or grossly negligent conduct, Tenant hereby assumes all risk of damage to
property or injury to person in or about the Premises from any cause, and Tenant
hereby waives all claims in respect thereof against Landlord.
(e) Exemption of Landlord from Liability.
Except for Landlord's willful or grossly negligent conduct, Tenant
hereby agrees that Landlord shall not be liable for any injury to Tenant's
business or loss of income therefrom or for damage to the goods, wares,
merchandise, or other property of Tenant, Tenant's employees, invitees,
customers 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,
contractors, or invitees, whether such damage or injury is caused by or results
from fire,
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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 such
damage results from conditions arising upon the Premises or upon other portions
of the building in which the Premises are a part, or from any other sources or
places. Landlord shall not be liable to Tenant for any damages arising from any
act or neglect of any other tenant, if any, of the building in which the
Premises are located.
12. DAMAGE OR DESTRUCTION.
(a) Damage - Insured.
If, during the term of this Lease, the Premises and/or the building and
other improvements in which the Premises are located are totally or partially
destroyed rendering the Premises totally or partially inaccessible or unusable,
and such damage or destruction was caused by a casualty covered under an
insurance policy required to be maintained hereunder, Landlord shall restore the
Premises and/or the building and other improvements in which the Premises are
located into substantially the same condition as they were in immediately before
such damage or destruction, provided that the restoration can be made under the
existing laws and can be completed within one hundred twenty 11201 working days
after the date of such destruction or damage. Such destruction or damage shall
not terminate this Lease.
If the restoration cannot be made in said 120 day period, then within
fifteen (15) days after the parties hereto determine that the restoration cannot
be made in the time stated in this paragraph, Tenant may terminate this Lease
immediately by giving notice to Landlord and the Lease will be deemed cancelled
as of the date of such damage or destruction. If Tenant fails to terminate this
Lease and the restoration is permitted under the existing laws, Landlord, at its
option, may terminate this Lease or restore the Premises and/or any other
improvements in which the Premises are located within a reasonable time and this
Lease shall continue in full force and effect. If the existing laws do not
permit the restoration, either party can terminate this Lease immediately by
giving notice to the other party.
Notwithstanding the above, if the Tenant is the insuring party and if
the insurance proceeds received by Landlord are not sufficient to effect such
repair, Landlord shall give notice to Tenant of the amount required in addition
to the insurance proceeds to effect such repair. Tenant may, at Tenant's option,
contribute the required amount, but upon failure to do so within thirty (30)
days following such notice, Landlord's sole remedy shall be, at Landlord's
option and with no liability to Tenant, to cancel and terminate this Lease. If
Tenant shall contribute such amount to Landlord within said thirty (30) day
period, Landlord shall make such repairs as soon as reasonably possible and this
Lease shall continue in full force and effect. Tenant shall in no event have any
right to reimbursement for any amount so contributed.
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(b) Damage - Uninsured.
In the event that the Premises are damaged or destroyed by a casualty
which is not covered by the fire and extended coverage insurance which is
required to be carried by the party designated in Article 11(a) above, then
Landlord shall restore the same; provided that if the damage or destruction is
to an extent greater than ten (10%) percent of the then replacement cost of the
improvements on the Premises (exclusive of Tenant's trade fixtures and equipment
and exclusive of foundations and footings), then Landlord may elect not to
restore and to terminate this Lease. Landlord must give to Tenant written notice
of its intention not to restore within thirty (30) days from the date of such
damage or destruction and, if not given, Landlord shall be deemed to have
elected to restore and in such event shall repair any damage as soon as
reasonably possible. In the event that Landlord elects to give such notice of
Landlord's intention to cancel and terminate this Lease, Tenant shall have the
right, within ten (10) days after receipt of such notice, to give written notice
to Landlord of Tenant's intention to repair such damage at Tenant's expense,
without reimbursement from Landlord, in which event the Lease shall continue in
full force and effect and Tenant shall proceed to make such repairs as soon as
reasonably possible. If the Tenant does not give such notice within such 10 day
period, this Lease shall be cancelled and be deemed terminated as of the date of
the occurrence of such damage or destruction.
(c) Damage Near the End of the Term.
If the Premises are totally or partially destroyed or damaged during
the last twelve (12) months of the term of this Lease, Landlord may, at
Landlord's option, cancel and terminate this Lease as of the date of the cause
of such damage by giving written notice to Tenant of Landlord's election to do
so within 30 days after the date of the occurrence of such damage; provided,
however, that, if the damage or destruction occurs within the last 12 months of
the term and if within fifteen (15) days after the date of such damage or
destruction Tenant exercises any option to extend the term provided herein,
Landlord shall restore the Premises if obligated to do so as provided in
subparagraph (a) or (b) above.
(d) Abatement of Rent.
If the Premises are partially or totally destroyed or damaged and
Landlord or Tenant repairs or restores them pursuant to the provisions of this
Article 12, the rent payable hereunder for the period during which such damage,
repair or restoration continues shall be abated in proportion to the degree to
which Tenant's reasonable use of the Premises is impaired. Except for the
abatement of rent, if any, Tenant shall have no claim against Landlord for any
damages suffered by reason of any such damage, destruction, repair or
restoration.
(e) Trade Fixtures and Equipment.
If Landlord is required or elects to restore the Premises as provided
in this Article, Landlord shall not be required to restore Tenant's
improvements, trade fixtures, equipment
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or alterations made by Tenant, such excluded items being the sole responsibility
of the Tenant to restore hereunder .
(f) Total Destruction - Multitenant Building.
If the Premises are a part of a multitenant building and there is
destruction to the Premises and/or the building of which the Premises are a part
that exceeds Fifty (50%) percent of the then replacement value of the Premises
and/or the building in which the Premises are a part from any cause whether or
not covered by the insurance described in Article ll above, Landlord may, at its
option, elect to terminate this Lease (whether or not the Premises are
destroyed) so long as Landlord terminates the leases of all other tenants in the
building of which the Premises are a part, effective as of the date of such
damage or destruction.
13. CONDEMNATION.
If the Premises or any portion thereof are taken by the power of
eminent domain, or sold by Landlord under the threat of exercise of said power
(all of which is herein referred to as "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever occurs first. If more than twenty (20%) percent
of the floor area of any buildings on the Premises, or more than twenty (20%)
percent of the land area of the Premises not covered with buildings, is taken by
condemnation, either Landlord or Tenant may terminate this Lease as of the date
the condemning authority takes possession by notice in writing of such election
within twenty (20) days after Landlord shall have notified Tenant of such taking
or, in the absence of such notice, then within twenty (20) days after the
condemning authority shall have taken possession.
If this Lease is not terminated by either Landlord or Tenant as
provided hereinabove, then it shall remain in full force and effect as to the
portion of the Premises remaining, provided that the rental shall be reduced in
proportion to the floor area of the buildings taken within the Premises as it
bears to the total floor area of all buildings located on the Premises. In the
event this Lease is not so terminated, then Landlord agrees at Landlord's sole
cost and expense, to as soon as reasonably possible restore the Premises to a
complete unit of like quality and character as existed prior to the
condemnation.
All awards for the taking of any part of the Premises or any payment
made under the threat of the exercise of the power of eminent domain shall be
the property of the Landlord, whether made as compensation for the diminution of
the value of the leasehold or for the taking of the fee or as severance damages;
provided, however, that Tenant shall be entitled to any award for loss or damage
to Tenant's trade fixtures and removable personal property.
Each party hereby waives the provisions of Code of Civil Procedure
1265.130 allowing either party to petition the Superior Court to terminate this
Lease in the event of a partial taking of the Premises.
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Rent shall be abated or reduced during the period from the date of
taking until the completion of restoration by Landlord, but all other
obligations of Tenant under this Lease shall remain in full force and effect.
The abatement or reduction of the rent shall be based on the extent to which the
restoration interferes with Tenant's use of the Premises.
14. ASSIGNMENT AND SUBLETTING.
Tenant shall not voluntarily or by operation of law assign, transfer,
sublet, mortgage, or otherwise transfer or encumber all or any part of Tenant's
interest in this Lease or in the Premises without Landlord's prior written
consent which consent shall not be unreasonably withheld. Any attempted
assignment, transfer, mortgage, encumbrance, or subletting without such consent
shall be void and shall constitute a breach of this Lease. If Tenant is a
corporation, any dissolution, merger, consolidation or other reorganization of
Tenant, or the sale or other transfer of a controlling percentage of the capital
stock of Tenant, or the sale of at least fifty-one (51%) percent of tile value
of the assets of Tenant, shall be deemed a voluntary assignment. The phrase
"controlling percentage" means the ownership of, and the right to vote, stock
possessing at least fifty-one (51%) percent of the total combined voting power
of all classes of Tenant's capital stock issued, outstanding, and entitled to
vote for the election of directors. This paragraph shall not apply to
corporations the stock of which is traded through an exchange or over the
counter.
Regardless of Landlord's consent, no subletting or assignment shall
release Tenant or Tenant's obligation to pay the rent and to perform all other
obligations to be performed by Tenant hereunder for the term of this Lease. The
acceptance of rent by Landlord from any other person shall not be deemed a
waiver by Landlord of any provision hereof. Consent to one assignment or
subletting shall not be deemed consent to any subsequent assignment or
subletting.
15. DEFAULT.
(a) Events of Default.
The occurrence of any one or more of the following events shall
constitute a default and breach of this Lease by Tenant:
(1) Failure to pay rent when due, if the failure continues for
five (5) days after written notice has been given to Tenant.
(2) Abandonment and vacation of the Premises (failure to occupy
the Premises for fourteen (14) consecutive days shall be deemed an
abandonment and vacation).
(3) Failure to perform any other provision of this Lease if the
failure to perform is not cured within thirty (30) days after written
notice thereof has been given to Tenant by Landlord. If the default
cannot reasonably be cured within said thirty (30) day period, Tenant
shall not be in default under this Lease if Tenant
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commences to cure the default within the thirty 1301 day period and
diligently prosecutes the same to completion.
(4) The making by Tenant of any general assignment, or general
arrangement for the benefit of creditors; the filing by or against
Tenant of a petition to have Tenant adjudged a bankrupt or a petition
for reorganization or arrangement under any law relating to bankruptcy
unless the same is dismissed within sixty (60) days; the appointment
of a trustee or receiver to take possession of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in the
Lease, where possession is not restored to Tenant within thirty (30)
days; or the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of
Tenant's interest in the Lease, where such seizure is not discharged
within thirty (30) days.
Notices given under this paragraph shall specify the alleged default
and the applicable lease provisions, and shall demand that Tenant perform the
provisions of this Lease or pay the rent that is in arrears as the case may be,
within the applicable period of time. No such notice shall be deemed a
forfeiture or a termination of this Lease unless Landlord so elects in the
notice.
(b) Landlord's Remedies.
The Landlord shall have the following remedies if Tenant commits a
default under this Lease. These remedies are not exclusive but are cumulative
and in addition to any remedies now or hereafter allowed by law.
Landlord can continue this Lease in full force and effect, and the
Lease will continue in effect so long as Landlord does not terminate Tenant's
right to possession, and the Landlord shall have the right to collect rent when
due. During the period that Tenant is in default, Landlord can enter the
Premises and relet them, or any part of them, to third parties for Tenant's
account. Tenant shall be liable immediately to the Landlord for all costs the
Landlord incurs in reletting the Premises, including, without limitation,
brokers' commissions, expenses of remodeling the Premises required by the
reletting, and like costs. Reletting can be for a period shorter or longer than
the remaining term of this Lease. Tenant shall pay to Landlord the rent due
under this Lease on the dates the rent is due, less the rent Landlord receives
from any reletting. No act by Landlord allowed by this paragraph shall terminate
this Lease unless Landlord notifies Tenant that Landlord elects to terminate
this Lease. After Tenant's default and for so long as Landlord has not
terminated Tenant's right to possession of the Premises, if Tenant obtains
Landlord's consent, Tenant shall have the right to assume or sublet its interest
in the Lease, but Tenant shall not be released from liability. Landlord's
consent to the proposed assignment or subletting shall not be unreasonably
withheld.
If Landlord elects to relet the Premises as provided in this paragraph,
any rent that Landlord receives from such reletting shall apply first to the
payment of any indebtedness from Tenant to Landlord other than the rent due from
Tenant to Landlord; secondly, to all
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costs, including maintenance, incurred by Landlord in such reletting; and third,
to any rent due and unpaid under this Lease. After deducting the payments
referred to in this paragraph, any sum remaining from the rent Landlord receives
from such reletting shall be held by Landlord and applied in payment of future
rent as rent becomes due under this Lease. In no event shall tenant be entitled
to any excess rent received by Landlord. If, on the date rent is due under this
Lease, the rent received from the reletting is less than the rent due on that
date, Tenant shall pay to Landlord, in addition to the remaining rent due, all
costs, including maintenance, that Landlord shall have incurred in reletting
that remain after applying the rent received from reletting as provided in this
paragraph.
Landlord can, at its option, terminate Tenant's right to possession of
the Premises at any time. No act by Landlord other than giving written notice to
Tenant shall terminate this Lease. Acts of maintenance, efforts to relet the
Premises, or the appointment of a receiver on Landlord's initiative to protect
Landlord's interest in this Lease shall not constitute a termination of Tenant's
right to possession. In the event of such termination, Landlord has the right to
recover from Tenant:
(1) The worth, at the time of the award, of the unpaid rent that
had been earned at the time of the termination of this Lease;
(2) The worth, at the time of the award, of the amount by which
the unpaid rent that would have been earned after the date of the
termination of this Lease until the time of the award exceeds the
amount of the loss of rent that Tenant proves could have been
reasonably avoided;
(3) The worth, at the time of the award, of the amount by which
the unpaid rent for the balance of the term after the time of the
award exceeds the amount of the loss of rent that Tenant proves could
have been reasonably avoided; and
(4) Any other amount, including court costs, necessary to
compensate Landlord for all detriment proximately caused by Tenant's
default.
"The worth at the time of the award," as used in (1) and (2) of this
paragraph is to be computed by allowing interest at the maximum rate an
individual is permitted by law to charge. "The worth at the time of the award,"
as referred to in (3) of this paragraph is to be computed by discounting the
amount at the discount rate of the Federal Reserve Bank of San Francisco at the
time of the award, plus one (1%) percent.
If Tenant is in default under the terms of this Lease, Landlord shall
have the additional right to have a receiver appointed to collect rent and
conduct Tenant's business. Neither the filing of a petition for the appointment
of a receiver nor the appointment itself shall constitute an election by
Landlord to terminate this Lease.
Landlord at any time after Tenant commits a default, can cure the
default at Tenant's cost and expense. If Landlord at any time, by reason of
Tenant's default, pays any sum or does any act that requires the payment of any
sum, the sum paid by Landlord shall be due
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immediately from Tenant to Landlord at the time the sum is paid, and if paid at
a later date shall bear interest at the maximum rate an individual is permitted
by law to charge from the date the sum is paid by Landlord until Landlord is
reimbursed by Tenant. The sum, together with interest thereon, shall be
considered additional rent.
16. SIGNS.
Tenant shall not have the right to place, construct or maintain any
sign, advertisement, awning, banner, or other exterior decorations on the
building or other improvements that are a part of the Premises without
Landlord's prior, written consent, which consent shall not be unreasonably
withheld.
17. EARLY POSSESSION.
In the event that the Landlord shall permit Tenant to occupy the
Premises prior to the commencement date of the term of this Lease, such
occupancy shall be subject to all the provisions of this Lease. Said early
possession shall not advance the termination date of this Lease.
18. SUBORDINATION.
This Lease, at Landlord's option, shall be subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation for security now or
hereafter placed upon the real property of which the Premises are a part and to
any and all advances made on the security thereof and to all renewal,
modifications, and extensions thereof. Notwithstanding any such subordination,
Tenant's right to quiet possession of the Premises shall not be disturbed if
Tenant is not in default and so long as Tenant shall pay the rent and observe
and perform all the other provisions of this Lease, unless this Lease is
otherwise terminated pursuant to its terms. If any mortgagee, trustee, or ground
lessor shall elect to have this Lease prior to the lien of its mortgage or deed
of trust or ground lease, and shall give written notice thereof to Tenant, this
Lease shall be deemed prior to such mortgage, deed of trust or ground lease,
whether this Lease is dated prior to or subsequent to the date of such mortgage,
deed of trust or ground lease, or the date of recording thereof. Tenant agrees
to execute any documents requiring to effect such subordination or to make this
Lease prior to the lien of any mortgage, deed of trust, or ground lease, as the
case may be, and failing to do so within ten (10) days after written demand from
Landlord does hereby make, constitute and irrevocably appoint Landlord as
Tenant's attorney in fact and in Tenant s name, place and stead to do so.
19. SURRENDER.
On the last day of the term hereof, or on any sooner termination,
Tenant shall surrender the Premises to Landlord In good condition, broom clean,
ordinary wear and tear accepted. Tenant shall repair any damage to the Premises
occasioned by its use thereof, or by the removal of Tenant's trade fixtures,
furnishings and equipment which repair shall include the patching and tilling of
holes and repair of structural damage. Tenant shall
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remove all of its personal property and fixtures on the Premises prior to the
expiration of the term of this Lease and if required by Landlord pursuant to
Article 10(a) above, any alterations, improvements or additions made by Tenant
to the Premises. If Tenant fails to surrender the Premises to Landlord on the
expiration of the Lease as required by this paragraph, Tenant shall hold
Landlord harmless from all damages resulting from Tenant's failure to vacate the
Premises, including, without limitation, claims made by any succeeding tenant
resulting from Tenant's failure to surrender the Premises.
20. HOLDING OVER.
If the Tenant, with the Landlord's consent, remains in possession of
the Premises after the expiration or termination of the term of this Lease, such
possession by Tenant shall be deemed to be a tenancy from month-to-month at a
rental in the amount of the last monthly rental plus all other charges payable
hereunder, upon all the provisions of this Lease applicable to month-to-month
tenancy.
21. BINDING ON SUCCESSORS AND ASSIGNS.
The terms, conditions and covenants of this Lease shall be binding upon
and shall inure to the benefit of each of the parties hereto, their heirs,
personal representatives, successors and assigns.
22. NOTICES.
Whenever under this Lease a provision is made for any demand, notice or
declaration of any kind, it shall be in writing and served either personally or
sent by registered or certified United States mail, postage prepaid, addressed
at the addresses set forth below:
to landlord at: 0000 Xxxxxxxx Xxxx., Inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxxxx
XX, XX 00000
to tenant at: United Film Distributors, Inc.
0000 Xxxxxxxx Xxxx.
Xxxxxxxxx
XX, XX 00000
Such notices shall be deemed to be received within forty-eight (48)
hours from the time of mailing, if mailed as provided for in this paragraph.
23. LANDLORD'S RIGHT TO INSPECTION.
Landlord and Landlord's agent shall have the right to enter the
Premises at reasonable times for the purpose of inspecting same, showing the
same to prospective purchasers or lenders, and making such alterations, repairs,
improvements or additions to
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the Premises or to the building of which the Premises are a part as Landlord may
deem necessary or desirable. Landlord may at any time place on or about the
Premises any ordinary "For Sale" signs and Landlord may at any time during the
last one hundred twenty 1120) days of the term of this Lease place on or about
the Premises any ordinary "For Sale or Lease" signs, all without rebate of rent
or liability to Tenant.
24. CHOICE OF LAW.
This Lease shall be governed by the laws of the state where the
Premises are located.
25. ATTORNEY'S FEES.
If either Landlord or Tenant becomes a party to any litigation or
arbitration concerning this Lease, the Premises, or the building or other
improvements in which the Premises are located, by reason of any act or omission
of the other party or its authorized representatives, and not by reason of any
act or omission of the party that becomes a party to that litigation or any act
or omission of its authorized representatives, the party that causes the other
party to become involved in the litigation shall be liable to that party for
reasonable attorney's fees and court costs incurred by it in the litigation.
If either party commences an action against the other party arising out
of or in connection with this Lease, the prevailing party shall be entitled to
have and recover from the losing party reasonable attorney's fees and costs of
suit.
26. LANDLORD'S LIABILITY.
The term "Landlord" as used in this Lease shall mean only the owner or
owners at the time in question of the fee title or a Lessee's interest in a
ground lease of the Premises, and in the event of any transfer of such title or
interest, Landlord herein named (and in case of any subsequent transfers to the
then successor) shall be relieved from and after the date of such transfer of
all liability in respect to Landlord's obligations thereafter to be performed.
The obligations contained in this Lease to be performed by Landlord shall be
binding upon the Landlord's successors and assigns, only during their respective
periods of ownership.
27. WAIVERS.
No waiver by Landlord of any provision hereof shall be deemed a waiver
of any other provision hereof or of any subsequent breach by Tenant of the same
or any other provision. Landlord's consent to or approval of any act shall not
be deemed to render unnecessary the obtaining of Landlord's consent to or
approval of any subsequent act by Tenant. The acceptance of rent hereunder by
Landlord shall not be a waiver of any preceding breach by Tenant of any
provision hereof, other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of its acceptance of such rent.
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28. INCORPORATION OF PRIOR AGREEMENTS.
This Lease contains all agreements of the parties with respect to any
matter mentioned herein. No prior agreement or understanding pertaining to any
such matter shall be effective. This Lease may be modified only in writing, and
signed by the parties in interest at the time of such modification.
29. TIME.
Time is of the essence of this Lease.
30. SEVERABILITY.
The unenforceability, invalidity, or illegality of any provision of
this Lease shall not render the other provisions hereof unenforceable, invalid
or illegal.
31. ESTOPPEL CERTIFICATES.
Each party, within ten (10) days after notice from the other party,
shall execute and deliver to the other party a certificate stating that this
Lease is unmodified and in full force and effect, or in full force and effect as
modified, and stating the modification. The certificate shall also state the
amount of minimum monthly rent, the dates to which rent has been paid in
advance, and the amount of any security deposit o prepaid rent, if any, as well
as acknowledging that there are not, to that party's knowledge, any uncured
defaults on the part of the other party, or specifying such defaults, if any,
which are claimed. Failure to deliver such a certificate within the ten (10) day
period shall be conclusive upon the party failing to deliver the certificate to
the benefit of the party requesting the certificate that this Lease is in full
force and effect, that there are no uncured defaults hereunder, and has not been
modified except as may be represented by the party requesting the certificate.
32. COVENANTS AND CONDITIONS.
Each provision of this Lease performable by Tenant shall be deemed both
a covenant and a condition.
33. SINGULAR AND PLURAL.
When required by the context of this Lease, the singular shall indicate
the plural.
34. JOINT AND SEVERAL OBLIGATIONS.
"Party" shall mean Landlord and Tenant; and if more than one person or
entity is the Landlord or Tenant, the obligations imposed on that party shall be
joint and several.
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35. OPTION TO EXTEND.
Provided that Tenant shall not then be in default hereunder, Tenant
shall have the option to extend the term of this Lease for 5 additional 1 year
periods upon the same terms and conditions herein contained, except for fixed
minimum monthly rentals, upon delivery by Tenant to Landlord of written notice
of its election to exercise such option(s) at lease ninety (90) days prior to
the expiration of the original (or extended) term hereof. The parties hereto
shall have thirty (30) days after the Landlord receives the option notice in
which to agree on the minimum monthly rental during the extended term(s). If the
parties agree on the minimum monthly rent for the extended term(s) during the
period, they shall immediately execute an amendment to this Lease stating the
minimum monthly rent. In the event that there is more than one option to extend
the term of this Lease, the parties hereto shall negotiate the minimum monthly
rent as set forth herein for each extended term of this Lease. If the parties
hereto are unable to agree on the minimum monthly rent for the extended term(s)
within said thirty (30) day period, the option notice shall be of no effect and
this Lease shall expire at the end of the term. Neither party to this Lease
shall have the right to have a court or other third party set the minimum
monthly rent.
36. ADDENDUM.
Any addendum attached hereto and either signed or initialled by the
parties shall be deemed a part hereof and shall supersede any conflicting terms
or provisions contained in this Lease.
The parties hereto have executed this Lease on the date first above
written.
LANDLORD: TENANT:
By: /s/ 2/27/96 By: /s/
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RENT ADJUSTMENT
Addendum to Commercial Office Lease
Dated: November 1, 1996
By and between (Lessor) 0000 Xxxxxxxx Xxxx., Inc. and (Lessee) United Film
Distributors.
The monthly rent for each month of the adjustment period(s) is as follows.
During the 1st year through the 2nd year of the term of the Lease, commencing on
November 1, 1996 and ending on June 30, 1998, the sum of Two Thousand Four
Hundred and Ninety-Four Dollars ($2,494) per month.
During the 3rd year through the 5th year of the term of the Lease, commencing on
July 1, 1998 and ending on June 30, 2001 the sum of Two Thousand Seven Hundred
and Forth Three Dollars ($2,743) per month.
The description of Lessee's space is as follows:
731 sq. ft of usable office space and 693.9 sq. ft. of common area which equals
to 41.8% of the Lessee's pro rata share for a total of 1,424.9 sq. ft. (see
Exhibit #__________).
This Addendum shall supersede any conflicting terms, conditions or provisions
contained in the original Lease dated July 1, 1996.
Lessor /s/ Lessee /s/
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