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EXHIBIT 10.108
OFFICE BUILDING LEASE
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Paragraph 1 LEASE OF PREMISES...................................... 1
Paragraph 2 DEFINITIONS............................................ 1
Paragraph 3 EXHIBITS AND ADDENDA................................... 2
Paragraph 4 DELIVERY OF POSSESSION................................. 2
Paragraph 5 RENT................................................... 2
Paragraph 6 INTEREST AND LATE CHARGES.............................. 5
Paragraph 7 SECURITY DEPOSIT....................................... 5
Paragraph 8 TENANT'S USE OF THE PREMISES........................... 5
Paragraph 9 SERVICES AND UTILITIES................................. 5
Paragraph 10 CONDITION OF THE PREMISES.............................. 6
Paragraph 11 CONSTRUCTION, REPAIRS AND MAINTENANCE.................. 6
Paragraph 12 ALTERATIONS AND ADDITIONS.............................. 7
Paragraph 13 LEASEHOLD IMPROVEMENTS;TENANT'S PROPERTY............... 8
Paragraph 14 RULES AND REGULATIONS.................................. 8
Paragraph 15 CERTAIN RIGHTS RESERVED BY LANDLORD.................... 8
Paragraph 16 ASSIGNMENT AND SUBLETTING.............................. 8
Paragraph 17 HOLDING OVER........................................... 9
Paragraph 18 SURRENDER OF PREMISES.................................. 9
Paragraph 19 DESTRUCTION OR DAMAGE..................................10
Paragraph 20 EMINENT DOMAIN.........................................10
Paragraph 21 INDEMNIFICATION........................................11
Paragraph 22 TENANT'S INSURANCE.....................................11
Paragraph 23 WAIVER OF SUBROGATION..................................12
Paragraph 24 SUBORDINATION AND ATTORNMENT...........................12
Paragraph 25 TENANT ESTOPPEL CERTIFICATES...........................12
Paragraph 26 TRANSFER OF LANDLORD'S INTEREST........................12
Paragraph 27 DEFAULT................................................12
Paragraph 28 BROKERAGE FEES.........................................14
Paragraph 29 NOTICES................................................14
Paragraph 30 GOVERNMENT ENERGY OR UTILITY CONTROLS..................14
Paragraph 31 RELOCATION OF PREMISES.................................14
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Paragraph 32 QUIET ENJOYMENT........................................15
Paragraph 33 OBSERVANCE OF LAW......................................15
Paragraph 34 FORCE MAJEURE..........................................15
Paragraph 35 CURING TENANT'S DEFAULTS...............................15
Paragraph 36 SIGN CONTROL...........................................15
Paragraph 37 MISCELLANEOUS..........................................15
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OFFICE BUILDING LEASE
This Lease between WHITTIER NARROWS BUSINESS PARK ("Landlord"), and OPTIMUM CARE
CORPORATION, a Delaware Corporation, ("Tenant"), is dated, for reference
purposes only, July 28, 1998.
1. LEASE OF PREMISES.
In consideration of the Rent (as defined at Section 5.4) and the provisions of
this Lease, Landlord leases to Tenant and Tenant leases from Landlord the
Premises shown by diagonal lines on the floor plan attached hereto as Exhibit
"A", and further described at Section 21. The Premises are located within the
Building and Project described in Section 2m. Tenant shall have the
non-exclusive right (unless otherwise provided herein) in common with Landlord,
other tenants, subtenants and invitees, to use the Common Area (as defined at
Section 2e.).
2. DEFINITIONS.
As used in this Lease, the following terms shall have the following meanings:
a. Base Rent: $ 61,142.63
b. Base Year: 1998
c. Broker(s) and Sales Agents: None
d. Commencement Date: See Addendum Paragraph 40
e. Common Areas: the building lobbies, common corridors and hallways, restrooms,
garage and parking areas, stairways, elevators and other generally understood
public or common areas. Landlord shall have the right to regulate or restrict
the use of the Common Areas.
f. Expense Stop: (fill in if applicable): $ N/A.
g. Expiration Date: September 30, 2000.
h. Index (Section 5.2): United States Department of Labor, Bureau of Labor
Statistics Consumer Price Index for All Urban Consumers, Greater Los Angeles
Area Average, Subgroup "All Items" (1982-1984=100).
i. Landlord's Mailing Address: Whittier Narrows Business Park
c/o Liberty West Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇'s Mailing Address: Optimum Care Corporation
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
j. Monthly Installments of Base Rent: $ 2,397.75
k. Parking: Tenant shall be permitted upon payment of the then prevailing
monthly rate (as set by Landlord from time to time) to park 8 cars on a
non-exclusive basis in the area(s) designated for the 1170 ▇▇▇▇▇▇ Avenue
building by Landlord for parking. Tenant shall abide by any and all parking
regulations and rules established from time to time by Landlord or Landlord's
parking operator. Landlord reserves the right to separately charge ▇▇▇▇▇▇'s
guests and visitors for parking.
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l. Premises: that portion of the Building containing approximately 2,085 square
feet of useable area, shown by diagonal lines on Exhibit "A", located on the 1st
floor of the Building and known as Suites A and B.
m. Project: the building of which the Premises are a part (the "Building") and
any other buildings or improvements on the real property (the "Property")
located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇. El Monte, CA and further described at Exhibit
"B". The Project is known as the Whittier Narrows Business Park.
n. Useable and/or Rentable Area: as to both the Premises and the Project, the
respective measurements of floor area as may from time to time be subject to
lease by Tenant and all tenants of the Project, respectively, as determined by
Landlord and applied on a consistent basis throughout the Project.
o. Security Deposit (Article 7): $ 2,397.75
p. State: the State of CALIFORNIA.
q. Tenant's First Adjustment Date (Section 5.2): the first day of the calendar
month following the Commencement Date plus 11 months (see Addendum).
r. Tenant's Proportionate Share: 2.602%. Such share is a fraction, the numerator
of which is the Useable Area of the Premises, and the denominator of which is
the Useable Area of the Project, as determined by Landlord from time to time.
The Project consists of 3 building(s) containing a total Useable Area of 80,183
square feet.
s. Tenant's Use Clause (Article 8): Psychological Counseling and General Office
t. Term: the period commencing on the Commencement Date and expiring at midnight
on the Expiration Date.
3. EXHIBITS AND ADDENDA.
The exhibits and addenda listed below (unless lined out) are incorporated by
reference in this Lease:
a. Exhibit "A"-Floor Plan showing the Premises.
b. Exhibit "B"-Site Plan of the Project.
c. Exhibit "C"-Tenant Improvement Plan.
d. Exhibit "D"-Rules and Regulations.
e. Exhibit "E"-.
f. Addenda:
Addendum to Lease
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4. DELIVERY OF POSSESSION.
If for any reason Landlord does not deliver possession of the Premises to Tenant
on the Commencement Date, Landlord shall not be subject to any liability for
such failure, the Expiration Date shall not change and the validity of this
Lease shall not be impaired, but Rent shall be abated until delivery of
possession. "Delivery of possession" shall be deemed to occur on the date
Landlord completes Landlord's Work as defined in Exhibit "C". If Landlord
permits Tenant to enter into possession of the Premises before the Commencement
Date, such possession shall be subject to the provisions of this Lease,
including without limitation, the payment of Rent.
5. RENT.
5.1. Payment of Base Rent. ▇▇▇▇▇▇ agrees to pay the Base Rent for the Premises.
Monthly installments of Base Rent shall be payable in advance on the first day
of each calendar month of the Term. If the Term begins (or ends) on other than
the first (or last) day of a calendar month, the Base Rent for the partial month
shall be prorated on a per diem basis. Tenant shall pay Landlord the first
Monthly Installment of Base Rent when Tenant executes the Lease.
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5.2 Adjusted Base Rent.
a. The amount of Base Rent (and the corresponding Monthly Installments of
Base Rent) payable hereunder shall be adjusted annually (the "Adjustment Date"),
commencing on Tenant's First Adjustment Date. Adjustments, if any, shall be
based upon increases (if any) in the Index. The Index in publication three (3)
months before the Commencement Date shall be the "Base Index". On each
Adjustment Date, the Base Rent shall be increased by a percentage equal to the
percentage increase, if any, in the Index in publication three (3) months before
the Adjustment Date (the "Comparison Index") over the Base Index ("adjusted Base
Rent"). In the event the Comparison Index in any year is less than the
Comparison Index (or Base Index, as the case may be) for the preceding year, the
Base Rent shall remain the amount of Base Rent payable during that preceding
year. When the adjusted Base Rent payable as of each Adjustment Date is
determined Landlord shall give Tenant written notice of such adjusted Base Rent
and the manner in which it was computed. The adjusted Base Rent shall thereafter
be the "Base Rent" for all purposes under this Lease.
b. If at any Adjustment Date the Index no longer exists in the form
described in this Lease, Landlord may substitute any substantially equivalent
official index published by the Bureau of Labor Statistics or its successor.
Landlord shall use any appropriate conversion factors to accomplish such
substitution. The substitute index shall become the "Index" hereunder. (See
Addendum)
5.3 Project Operating Costs.
a. In order that the Rent payable during the Term reflect any increase in
Project Operating Costs, ▇▇▇▇▇▇ agrees to pay to Landlord as Rent, ▇▇▇▇▇▇'s
Proportionate Share of all increase in costs, expenses and obligations
attributable to the Project and its operation, all as provided below.
b. If during any calendar year during the Term, Project Operating Costs
exceed the Project Operating Costs for the Base Year, Tenant shall pay to
Landlord, in addition to the Base Rent and all other payments due under this
Lease, an amount equal to Tenant's Proportionate Share of such excess Project
Operating Costs in accordance with the provisions of this Section 5.3b.
(1) The term "Project Operating Costs" shall include all those items
described in the following subparagraphs (a) and (b).
(a) All taxes, assessments, water and sewer charges and other similar
governmental charges levied on or attributable to the Building or
Project or their operation, including without limitation, (i) real
property taxes or assessments levied or assessed against the Building or
Project, (ii) assessments or charges levied or assessed against the
Building or Project by any redevelopment agency, (iii) any tax measured
by gross rentals received from the leasing of the Premises, Building or
Project, excluding any net income, franchise, capital stock, estate or
inheritance taxes imposed by the State or federal government or their
agencies, branches or departments; provided that if at any lime during
the Term any governmental entity levies, assesses or imposes on Landlord
any (1) general or special, ad valorem or specific, excise, capital levy
or other tax, assessment, levy or charge directly on the Rent received
under this Lease or on the rent received under any other leases of space
in the Building or Project, or (2) any license fee, excise or franchise
tax, assessment, levy or charge measured by or based, in whole or in
part, upon such rent, or (3) any transfer, transaction, or similar tax,
assessment, levy or charge based directly or indirectly upon the
transaction represented by this Lease or such other leases, or (4) any
occupancy, use, per capita or other tax, assessment, levy or charge
based directly or indirectly upon the use or occupancy of the Premises
or other premises within the Building or Project, then any such taxes,
assessments, levies and charges shall be deemed to be included in the
term Project Operating Costs. If at any time during the Term the
assessed valuation of, or taxes on, the Project are not based on a
completed Project having al least eighty-five percent (85%) of the
Rentable Area occupied, then the "taxes" component of Project Operating
Costs shall be adjusted by Landlord to reasonably approximate the taxes
which would have been payable if the Project were completed and at least
eighty-five percent (85%) occupied.
(b) Operating costs incurred by Landlord in maintaining and operating
the Building and Project, including without limitation the following:
costs of (1) utilities; (2) supplies; (3) insurance (including public
liability, property damage, earthquake, and fire and extended coverage
insurance for the full replacement cost of the Building and Project as
required by Landlord or its lenders for the Project; (4) services of
independent contractors; (5) compensation (including employment taxes
and fringe benefits) of all persons who perform duties connected with
the operation, maintenance, repair or overhaul of the Building or
Project, and equipment, improvements and facilities located within the
Project, including without limitation engineers, janitors, painters,
floor waxers, window washers, security and parking personnel and
gardeners (but excluding persons performing services not uniformly
available to or performed for substantially all Building or Project
tenants); (6) operation and maintenance of a room for delivery and
distribution of mail to tenants of the Building or Project as required
by the U.S. Postal Service (including, without limitation, an amount
equal to the fair market rental value of the mail room premises); (7)
management of the Building or Project, whether managed by Landlord or an
independent contractor (including, without limitation, an amount equal
to the fair market value of any on-site manager's office); (8) rental
expenses for (or a reasonable depreciation allowance on) personal
property used in the maintenance operation or repair of the Building or
Project; (9) costs, expenditures or charges (whether capitalized or not)
required by any governmental or quasi- governmental authority; (10)
amortization of capital expenses (including financing costs) (i)
required by a governmental entity for energy conservation or life safety
purposes, or (ii) made by Landlord to reduce Project Operating Costs;
and (11) any other costs or expenses incurred by Landlord under this
Lease and not otherwise reimbursed by tenants of the Project. If at any
time during the Term, less than eighty- five percent (85%) of the
Rentable Area of the Project is occupied, the "operating costs"
component of
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Project Operating Costs shall be adjusted by Landlord to reasonably approximate
the operating costs which would have been incurred if the Project had been at
least eighty-five percent (85%) occupied.
(2) Tenant's Proportionate Share of Project Operating Costs shall be payable
by Tenant to Landlord as follows:
(a) Beginning with the calendar year following the Base Year and for
each calendar year thereafter ("Comparison Year"), Tenant shall pay
Landlord an amount equal to Tenant's Proportionate Share of the Project
Operating Costs incurred by Landlord in the Comparison Year which
exceeds the total amount of Project Operating Costs payable by Landlord
for the Base Year. This excess is referred to as the "Excess Expenses."
(b) To provide for current payments of Excess Expenses, Tenant shall, at
Landlord's request, pay as additional rent during each Comparison Year,
an amount equal to Tenant's Proportionate Share of the Excess Expenses
payable during such Comparison Year, as estimated by Landlord from time
to time. Such payments shall be made in monthly installments, commencing
on the first day of the month following the month in which Landlord
notifies Tenant of the amount it is to pay hereunder and continuing
until the first day of the month following the month in which Landlord
gives Tenant a new notice of estimated Excess Expenses. It is the
intention hereunder to estimate from time to time the amount of the
Excess Expenses for each Comparison Year and Tenant's Proportionate
Share thereof, and then to make an adjustment in the following year
based on the actual Excess Expenses incurred for that Comparison Year."
c) On or before April 1 of each Comparison Year after the first
Comparison Year (or as soon thereafter as is practical), Landlord shall
deliver to Tenant a statement setting forth Tenant's Proportionate Share
of the Excess Expenses for the preceding Comparison Year. If ▇▇▇▇▇▇'s
Proportionate Share of the actual Excess Expenses for the previous
Comparison Year exceeds the total of the estimated monthly payments made
by Tenant for such year, Tenant shall pay Landlord the amount of the
deficiency within ten (10) days of the receipt of the statement. If such
total exceeds Tenant's Proportionate Share of the actual Excess Expenses
for such Comparison Year, then Landlord shall credit against ▇▇▇▇▇▇'s
next ensuing monthly installment(s) of additional rent an amount equal
to the difference until the credit is exhausted. If a credit is due from
Landlord on the Expiration Date, Landlord shall pay Tenant the amount of
the credit. The obligations of Tenant and Landlord to make payments
required under this Section 5.3 shall survive the Expiration Date.
(d) Tenant's Proportionate Share of Excess Expenses in any Comparison
Year having less than 365 days shall be appropriately prorated.
(e) If any dispute arises as to the amount of any additional rent due
hereunder, Tenant shall have the right after reasonable notice and at
reasonable times to inspect Landlord's accounting records at Landlord's
accounting office and, if after such inspection Tenant still disputes
the amount of additional rent owed, a certification as to the proper
amount shall be made by Landlord's certified public accountant, which
certification shall be final and conclusive. ▇▇▇▇▇▇ agrees to pay the
cost of such certification unless it is determined that ▇▇▇▇▇▇▇▇'s
original statement overstated Project Operating Costs by more than five
percent (5%).
(f) If this Lease sets forth an Expense Stop at Section 2f, then during
the term Tenant shall be liable for Tenant's Proportionate Share of any
actual Project Operating Costs which exceed the amount of the Expense
Stop. Tenant shall make current payments of such excess costs during the
Term in the same manner as is provided for payment of Excess Expenses
under the applicable provisions of Section 5.3b(2)(b) and (c) above.
5.4 Definition of Rent. All costs and expenses which tenant assumes or agrees to
pay to Landlord under this Lease shall be deemed additional rent (which,
together with the Base Rent is sometimes referred to as the "Rent"). The Rent
shall be paid to the Building manager (or other person) and at such place, as
Landlord may from time to time designate in writing, without any prior demand
therefor and without deduction or offset, in lawful money of the United States
of America.
5.5 Rent Control. If the amount of Rent or any other payment due under this
Lease violates the terms of any governmental restrictions on such Rent or
payment, then the Rent or payment due during the period of such restrictions
shall be the maximum amount allowable under those restrictions. Upon termination
of the restrictions, Landlord shall, to the extent it is legally permitted,
recover from Tenant the difference between the amounts received during the
period of the restrictions and the amounts Landlord would have received had
there been no restrictions.
5.6 Taxes Payable by ▇▇▇▇▇▇. In addition to the Rent and any other charges to be
paid by Tenant hereunder, Tenant shall reimburse Landlord upon demand for any
and all taxes payable by Landlord (other than net income taxes) which are not
otherwise reimbursable under this Lease, whether or not now customary or within
the contemplation of the parties, where such taxes are upon, measured by or
reasonably attributable to (a) the cost or value of Tenant's equipment,
furniture, fixtures and other personal property located in the Premises, or the
cost or value of any leasehold improvements made in or to the Premises by or for
Tenant, other than Building Standard Work made by Landlord, regardless of
whether title to such improvements is held by Tenant or Landlord; (b) the gross
or net Rent payable under this Lease, including, without limitation any rental
or gross receipts tax levied by any taxing authority with respect to the receipt
of the Rent hereunder; (c) the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Premises or
any portion thereof; or (d) this transaction or any document to which Tenant is
a party creating or transferring an interest or an estate in the Premises.
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If it becomes unlawful for Tenant to reimburse Landlord for any costs as
required under this Lease, the Base Rent shall be revised to net Landlord the
same net Rent after imposition of any tax or other charge upon Landlord as would
have been payable to Landlord but for the reimbursement being unlawful.
6. INTEREST AND LATE CHARGES.
If Tenant fails to pay when due any Rent or other amounts or charges which
Tenant is obligated to pay under the terms of this Lease, the unpaid amounts
shall bear interest at the maximum rate then allowed by law. Tenant acknowledges
that the late payment of any Monthly Installment of Base Rent will cause
Landlord to lose the use of that money and incur costs and expenses not
contemplated under this Lease, including without limitation, administrative and
collection costs and processing and accounting expenses, the exact amount of
which is extremely difficult to ascertain. Therefore, in addition to interest,
it any such installment is not received by Landlord within ten (10) days from
the date it is due, Tenant shall pay Landlord a late charge equal to ten percent
(10%) of such installment. Landlord and Tenant agree that this late charge
represents a reasonable estimate of such costs and expenses and is fair
compensation to Landlord for the loss suffered from such nonpayment by ▇▇▇▇▇▇.
Acceptance of any interest or late charge shall not constitute a waiver of
Tenant's default with respect to such nonpayment by Tenant nor prevent Landlord
from exercising any other rights or remedies available to Landlord under this
Lease.
7. SECURITY DEPOSIT.
▇▇▇▇▇▇ agrees to deposit with Landlord the Security Deposit set forth at Section
2.0 upon execution of this Lease, as security for ▇▇▇▇▇▇'s faithful performance
of its obligations under this Lease. Landlord and Tenant agree that the Security
Deposit may be commingled with funds of Landlord and Landlord shall have no
obligation or liability for payment of interest on such deposit. Tenant shall
not mortgage, assign, transfer or encumber the Security Deposit without the
prior written consent of Landlord and any attempt by Tenant to do so shall be
void, without force or effect and shall not be binding upon Landlord.
If Tenant fails to pay any Rent or other amount when due and payable under this
Lease, or fails to perform any of the terms hereof, Landlord may appropriate and
apply or use all or any portion of the Security Deposit for Rent payments or any
other amount then due and unpaid, for payment of any amount for which Landlord
has become obligated as a result of Tenant's default or breach, and for any loss
or damage sustained by Landlord as a result of Tenant's default or breach, and
Landlord may so apply or use this deposit without prejudice to any other remedy
Landlord may have by reason of Tenant's default or breach. If Landlord so uses
any of the Security Deposit, Tenant shall, within ten (10) days after written
demand therefor, restore the Security Deposit to the full amount originally
deposited; Tenant's failure to do so shall constitute an act of default
hereunder and Landlord shall have the right to exercise any remedy provided for
at Article 27 hereof. Within fifteen (15) days after the Term (or any extension
thereof) has expired or Tenant has vacated the Premises, whichever shall last
occur, and provided Tenant is not then in default on any of its obligations
hereunder, Landlord shall return the Security Deposit to Tenant, or, if Tenant
has assigned its interest under this Lease, to the last assignee of Tenant. If
Landlord sells its interest in the Premises, Landlord may deliver this deposit
to the purchaser of Landlord's interest and thereupon be relieved of any further
liability or obligation with respect to the Security Deposit.
8. TENANT'S USE OF THE PREMISES.
Tenant shall use the Premises solely for the purposes set forth in Tenant's Use
Clause. Tenant shall not use or occupy the Premises in violation of law or any
covenant, condition or restriction affecting the Building or Project or the
certificate of occupancy issued for the Building or Project, and shall, upon
notice from Landlord, immediately discontinue any use of the Premises which is
declared by any governmental authority having jurisdiction to be a violation of
law or the certificate of occupancy. Tenant, at Tenant's own cost and expense,
shall comply with all laws, ordinances, regulations, rules and/or any directions
of any governmental agencies or authorities having jurisdiction which shall, by
reason of the nature of Tenant's use or occupancy of the Premises, impose any
duty upon Tenant or Landlord with respect to the Premises or its use or
occupation. A judgment of any court of competent jurisdiction or the admission
by Tenant in any action or proceeding against Tenant that Tenant has violated
any such laws, ordinances, regulations, rules and/or directions in the use of
the Premises shall be deemed to be a conclusive determination of that fact as
between Landlord and Tenant. Tenant shall not do or permit to be done anything
which will invalidate or increase the cost of any fire, extended coverage or
other insurance policy covering the Building or Project and/or property located
therein, and shall comply with all rules, orders, regulations, requirements and
recommendations of the Insurance Services Office or any other organization
performing a similar function. Tenant shall promptly upon demand reimburse
Landlord for any additional premium charged for such policy by reason of
▇▇▇▇▇▇'s failure to comply with the provisions of this Article. Tenant shall not
do or permit anything to be done in or about the Premises which will in any way
obstruct or interfere with the rights of other tenants or occupants of the
Building or Project, or injure or annoy them or use or allow the Premises to be
used for any improper, immoral, unlawful or objectionable purpose, nor shall
Tenant cause, maintain or permit any nuisance in, on or about the Premises.
Tenant shall not commit or suffer to be committed any waste in or upon the
Premises.
9. SERVICES AND UTILITIES.
Provided that ▇▇▇▇▇▇ is not in default hereunder, ▇▇▇▇▇▇▇▇ agrees to furnish to
the Premises during generally recognized business days, and during hours
determined by Landlord in its sole discretion, and subject to the Rules and
Regulations of the
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Building or Project, electricity for normal desk top office equipment and normal
copying equipment, and heating, ventilation and air conditioning ( HVAC ) as
required in Landlord's judgment for the comfortable use and occupancy of the
Premises. If Tenant desires HVAC at any other time, Landlord shall use
reasonable efforts to furnish such service upon reasonable notice from Tenant
and Tenant shall pay Landlord's charges therefor on demand. Landlord shall also
maintain and keep lighted the common stairs, common entries and restrooms in the
Building. Landlord shall not be in default hereunder or be liable for any
damages directly or indirectly resulting from, nor shall the Rent be abated by
reason of (i) the installation, use or interruption of use of any equipment in
connection with the furnishing of any of the foregoing services, (ii) failure to
furnish or delay in furnishing any such services where such failure or delay is
caused by accident or any condition or event beyond the reasonable control of
Landlord, or by the making of necessary repairs or improvements to the Premises,
Building or Project, or (iii) the limitation, curtailment or rationing of, or
restrictions on, use of water, electricity, gas or any other form of energy
serving the Premises, Building or Project. Landlord shall not be liable under
any circumstances for a loss of or injury to property or business, however
occurring, through or in connection with or incidental to failure to furnish any
such services. If Tenant uses heat generating machines or equipment in the
Premises which affect the temperature otherwise maintained by the HVAC system,
Landlord reserves the right to install supplementary air conditioning units in
the Premises and the cost thereof, including the cost of installation, operation
and maintenance thereof, shall be paid by Tenant to Landlord upon demand by
Landlord.
Tenant shall not, without the written consent of Landlord, use any apparatus or
device in the Premises, including without limitation, electronic data processing
machines, punch card machines or machines using in excess of 120 volts, which
consumes more electricity than is usually furnished or supplied for the use of
premises as general office space, as determined by Landlord. Tenant shall not
connect any apparatus with electric current except through existing electrical
outlets in the Premises. Tenant shall not consume water or electric current in
excess of that usually furnished or supplied for the use of premises as general
office space (as determined by Landlord), without first procuring the written
consent of Landlord, which Landlord may refuse, and in the event of consent,
Landlord may have installed a water meter or electrical current meter in the
Premises to measure the amount of water or electric current consumed. The cost
of any such meter and of its installation, maintenance and repair shall be paid
for by the Tenant and ▇▇▇▇▇▇ agrees to pay to Landlord promptly upon demand for
all such water and electric current consumed as shown by said meters, at the
rates charged for such services by the local public utility plus any additional
expense incurred in keeping account of the water and electric current so
consumed. If a separate meter is not installed, the excess cost for such water
and electric current shall be established by an estimate made by a utility
company or electrical engineer hired by Landlord at Tenant's expense.
Nothing contained in this Article shall restrict Landlord's right to require at
any time separate metering of utilities furnished to the Premises. In the event
utilities are separately metered, Tenant shall pay promptly upon demand for all
utilities consumed at utility rates charged by the local public utility plus any
additional expense incurred by Landlord in keeping account of the utilities so
consumed. Tenant shall be responsible tor the maintenance and repair of any such
meters at its sole cost.
Landlord shall furnish elevator service, lighting replacement for building
standard lights, restroom supplies, window washing and janitor services in a
manner that such services are customarily furnished to comparable office
buildings in the area.
10. CONDITION OF THE PREMISES.
▇▇▇▇▇▇'s taking possession of the Premises shall be deemed conclusive evidence
that as of the date of taking possession the Premises are in good order and
satisfactory condition, except for such matters as to which ▇▇▇▇▇▇ gave Landlord
notice on or before the Commencement Date. No promise of Landlord to alter,
remodel, repair or improve the Premises, the Building or the Project and no
representation, express or implied, respecting any matter or thing relating to
the Premises, Building, Project or this Lease (including, without limitation,
the condition of the Premises, the Building or the Project) have been made to
Tenant by Landlord or its Broker or Sales Agent, other than as may be contained
herein or in a separate exhibit or addendum signed by Landlord and Tenant.
11. CONSTRUCTION, REPAIRS AND MAINTENANCE.
a. Landlord's Obligations. Landlord shall perform Landlord's Work to the
Premises as described in Exhibit "C." Landlord shall maintain in good order,
condition and repair the Building and all other portions of the Premises not the
obligation of Tenant or of any other tenant in the Building.
b. Tenant's Obligations.
(1) Tenant shall perform Tenant's Work to the Premises as described in Exhibit
"C."
(2) Tenant at Tenant's sole expense shall, except for services furnished by
Landlord pursuant to Article 9 hereof, maintain the Premises in good order,
condition and repair, including the interior surfaces of the ceilings, walls and
floors, all doors, all interior windows, all plumbing, pipes and fixtures,
electrical wiring, switches and fixtures, Building Standard furnishings and
special items and equipment installed by or at the expense of Tenant.
(3) Tenant shall be responsible for all repairs and alterations in and to the
Premises, Building and Project and the facilities and
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systems thereof, the need for which arises out of (i) Tenant's use or occupancy
of the Premises, (ii) the installation, removal, use or operation of Tenant's
Property (as defined in Article 13) in the Premises, (iii) the moving of
Tenant's Property into or out of the Building, or (iv) the act, omission, misuse
or negligence of Tenant, its agents, contractors, employees or invitees.
(4) If Tenant fails to maintain the Premises in good order, condition and
repair, Landlord shall give Tenant notice to do such acts as are reasonably
required to so maintain the Premises. If Tenant fails to promptly commence such
work and diligently prosecute it to completion, then Landlord shall have the
right to do such acts and expend such funds at the expense of Tenant as are
reasonably required to perform such work. Any amount so expended by Landlord
shall be paid by Tenant promptly after demand with interest at the prime
commercial rate then being charged by Bank of America NT & SA plus two percent
(2%) per annum, from the date of such work, but not to exceed the maximum rate
then allowed by law. Landlord shall have no liability to Tenant for any damage,
inconvenience, or interference with the use of the Premises by ▇▇▇▇▇▇ as a
result of performing any such work.
c. Compliance with Law. Landlord and Tenant shall each do all acts required to
comply with all applicable laws, ordinances, and rules of any public authority
relating to their respective maintenance obligations as set forth herein.
d. Waiver by ▇▇▇▇▇▇. Tenant expressly waives the benefits of any statute now or
hereafter in effect which would otherwise afford the Tenant the right to make
repairs at Landlord's expense or to terminate this Lease because of Landlord's
failure to keep the Premises in good order, condition and repair.
e. Load and Equipment Limits. Tenant shall not place a load upon any floor of
the Premises which exceeds the load per square foot which such floor was
designed to carry, as determined by Landlord or Landlord's structural engineer.
The cost of any such determination made by ▇▇▇▇▇▇▇▇'s structural engineer shall
be paid for by Tenant upon demand. Tenant shall not install business machines or
mechanical equipment which cause noise or vibration to such a degree as to be
objectionable to Landlord or other Building tenants.
f. Except as otherwise expressly Provided in this Lease, Landlord shall have no
liability to Tenant nor shall Tenant's obligations under this Lease be reduced
or abated in any manner whatsoever by reason of any inconvenience, annoyance,
interruption or injury to business arising from Landlord's making any repairs or
changes which Landlord is required or permitted by this Lease or by any other
tenant's lease or required by law to make in or to any portion of the Project,
Building, or the Premises. Landlord shall nevertheless use reasonable efforts to
minimize any interference with ▇▇▇▇▇▇'s business in the Premises.
g. Tenant shall give Landlord prompt notice of any damage to or defective
condition in any part or appurtenance of the Building's mechanical, electrical,
plumbing, HVAC or other systems serving, located in, or passing through the
Premises.
h. Upon the expiration or earlier termination of this Lease, Tenant shall return
the Premises to Landlord clean and in the same condition as on the date Tenant
took possession, except for normal wear and tear. Any damage to the Premises,
including any structural damage, resulting from ▇▇▇▇▇▇'s use or from the removal
of Tenant's fixtures, furnishings and equipment pursuant to Section 13b shall be
repaired by Tenant at Tenant's expense.
12. ALTERATIONS AND ADDITIONS.
a. Tenant shall not make any additions, alterations or improvements to the
Premises without obtaining the prior written consent of Landlord. ▇▇▇▇▇▇▇▇'s
consent may be conditioned on ▇▇▇▇▇▇'s removing any such additions, alterations
or improvements upon the expiration of the Term and restoring the Premises to
the same condition as on the date Tenant took possession. All work with respect
to any addition, alteration or improvement shall be done in a good and
workmanlike manner by properly qualified and licensed personnel approved by
Landlord, and such work shall be diligently prosecuted to completion. Landlord
may, at ▇▇▇▇▇▇▇▇'s option, require that any such work be performed by ▇▇▇▇▇▇▇▇'s
contractor, in which case the cost of such work shall be paid for before
commencement of the work. Tenant shall pay to Landlord upon completion of any
such work by ▇▇▇▇▇▇▇▇'s contractor, an administrative fee of fifteen percent
(15%) of the cost of the work.
b. Tenant shall pay the costs of any work done on the Premises pursuant to
Section 12a, and shall keep the Premises, Building and Project free and clear of
liens of any kind. Tenant shall indemnify, defend against and keep Landlord free
and harmless from all liability, loss, damage, costs, attorneys' fees and any
other expense incurred on account of claims by any person performing work or
furnishing materials or supplies for Tenant or any person claiming under Tenant.
Tenant shall keep Tenant's leasehold interest, and any additions or improvements
which are or become the property of Landlord under this Lease, free and clear of
all attachment or judgment liens. Before the actual commencement of any work for
which a claim or lien may be filed, Tenant shall give Landlord notice of the
intended commencement date a sufficient time before that date to enable Landlord
to post notices of non-responsibility or any other notices which Landlord deems
necessary for the proper protection of Landlord's interest in the Premises,
Building or the Project, and Landlord shall have the right to enter the Premises
and post such notices at any reasonable time.
c. Landlord may require, at ▇▇▇▇▇▇▇▇'s sole option, that Tenant provide to
Landlord, at Tenant's expense, a lien and completion bond in an amount equal to
at least one and one-half (1 1/2) times the total estimated cost of any
additions, alterations or
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improvements to be made in or to the Premises, to protect Landlord against any
liability for mechanic's and materialmen's liens and to insure timely completion
of the work. Nothing contained in this Section 12c shall relieve Tenant of its
obligation under Section 12b to keep the Premises, Building and Project free of
all liens.
d. Unless their removal is required by Landlord as provided in Section 12a, all
additions, alterations and improvements made to the Premises shall become the
property of Landlord and be surrendered with the Premises upon the expiration of
the Term; provided, however, Tenant's equipment, machinery and trade fixtures
which can be removed without damage to the Premises shall remain the property of
Tenant and may be removed, subject to the provisions of Section 13b.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.
a. All fixtures, equipment, improvements and appurtenances attached to or built
into the Premises at the commencement of or during the Term, whether or not by
or at the expense of Tenant ("Leasehold Improvements"), shall be and remain a
part of the Premises, shall be the property of Landlord and shall not be removed
by Tenant, except as expressly provided in Section 13b.
b. All movable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment located in the
Premises and acquired by or for the account of Tenant, without expense
to Landlord which can be removed without structural damage to the
Building, and all furniture, furnishings and other articles of movable
personal property owned by Tenant and located in the Premises
(collectively "Tenant's Property") shall be and shall remain the
property of Tenant and may be removed by Tenant at any time during the
Term; provided that if any of Tenant's Property is removed, Tenant shall
promptly repair any damage, to the Premises or to the Building resulting
from such removal.
14. RULES AND REGULATIONS.
Tenant agrees to comply with (and cause its agents, contractors, employees and
invitees to comply with) the rules and regulations attached hereto as Exhibit
"D" and with such reasonable modifications thereof and additions thereto as
Landlord may from time to time make. Landlord shall not be responsible for any
violation of said rules and regulations by other tenants or occupants of the
Building or Project.
15. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without liability to Tenant
for (a) damage or injury to property, person or business, (b) causing an actual
or constructive eviction from the Premises, or (c) disturbing Tenant's use or
possession of the Premises:
a. To name the Building and Project and to change the name or street
address of the Building or Project;
b. To install and maintain all signs on the exterior and interior of the
Building and Project;
c. To have pass keys to the Premises and all doors within the Premises,
excluding ▇▇▇▇▇▇'s vaults and sales;
d. At any time during the Term, and on reasonable prior notice to
Tenant, to inspect the Premises, and to show the Premises to any
prospective purchaser or mortgagee of the Project, or to any assignee of
any mortgage on the Project, or to others having an interest in the
Project or Landlord, and during the last six months of the Term, to show
the Premises to prospective tenants thereof; and
e. To enter the Premises for the purpose of making inspections, repairs,
alterations, additions or improvements to the Premises or the Building
(including, without limitation, checking, calibrating, adjusting or
balancing controls and other parts of the HVAC system), and to take all
steps as may be necessary or desirable for the safety, protection,
maintenance or preservation of the Premises or the Building or
Landlord's interest therein, or as may be necessary or desirable for the
operation or improvement of the Building or in order to comply with
laws, orders or requirements of governmental or other authority.
Landlord agrees to use its best efforts (except in an emergency) to
minimize interference with ▇▇▇▇▇▇'s business in the Premises in the
course of any such entry.
16. ASSIGNMENT AND SUBLETTING.
No assignment of this Lease or sublease of all or any part of the Premises shall
be permitted, except as provided in this Article 16.
a. Tenant shall not, without the prior written consent of Landlord,
assign or hypothecate this Lease or any interest herein or sublet the
Premises or any part thereof, or permit the use of the Premises by any
party other than Tenant. Any of the foregoing acts without such consent
shall be void and shall, at the option of Landlord, terminate this
Lease. This Lease shall not, nor shall any interest of Tenant herein, be
assignable by operation of law without the written consent of Landlord.
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b. If at any time or from time to time during the Term Tenant desires to
assign this Lease or sublet all or any part of the Premises, Tenant
shall give notice to Landlord setting forth the terms and provisions of
the proposed assignment or sublease, and the identity of the proposed
assignee or subtenant. Tenant shall promptly supply Landlord with such
information concerning the business background and financial condition
of such proposed assignee or subtenant as Landlord may reasonably
request. Landlord shall have the option, exercisable by notice given to
Tenant within twenty (20) days after ▇▇▇▇▇▇'s notice is given, either to
sublet such space from Tenant at the rental and on the other terms set
forth in this Lease for the term set forth in Tenant's notice, or, in
the case of an assignment, to terminate this Lease. If Landlord does not
exercise such option, Tenant may assign the Lease or sublet such space
to such proposed assignee or subtenant on the following further
conditions:
(1) Landlord shall have the right to approve such proposed
assignee or subtenant, which approval shall not be unreasonably
withheld;
(2) The assignment or sublease shall be on the same terms set
forth in the notice given to Landlord;
(3) No assignment or sublease shall be valid and no assignee or
sublessee shall take possession of the Premises until an
executed counterpart of such assignment or sublease has been
delivered to Landlord;
(4) No assignee or sublessee shall have a further right to
assign or sublet except on the terms herein contained; and
(5) Any sums or other economic consideration received by Tenant
as a result of such assignment or subletting, however
denominated under the assignment or sublease, which exceed, in
the aggregate, (i) the total sums which Tenant is obligated to
pay Landlord under this Lease (prorated to reflect obligations
allocable to any portion of the Premises subleased), plus (ii)
any real estate brokerage commissions or fees payable in
connection with such assignment or subletting, shall be paid to
Landlord as additional rent under this Lease without affecting
or reducing any other obligations of Tenant hereunder.
c. Notwithstanding the provisions of paragraphs a and b above, Tenant
may assign this Lease or sublet the Premises or any portion thereof,
without Landlord's consent and without extending any recapture or
termination option to Landlord, to any corporation which controls, is
controlled by or is under common control with Tenant, or to any
corporation resulting from a merger or consolidation with Tenant, or to
any person or entity which acquires all the assets of Tenant's business
as a going concern, provided that (i) the assignee or sublessee assumes,
in full, the obligations of Tenant under this Lease, (ii) Tenant remains
fully liable under this Lease, and (iii) the use of the Premises under
Article 8 remains unchanged.
d. No subletting or assignment shall release Tenant of Tenant's
obligations under this Lease or alter the primary liability of Tenant to
pay the Rent and to perform all other obligations to be performed by
Tenant hereunder. The acceptance of Rent by Landlord from any other
person shall not be deemed to be 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. In the event of
default by an assignee or subtenant of Tenant or any successor of ▇▇▇▇▇▇
in the performance of any of the terms hereof. Landlord may proceed
directly against Tenant without the necessity of exhausting remedies
against such assignee, subtenant or successor. Landlord may consent to
subsequent assignments of the Lease or sublettings or amendments or
modifications to the Lease with assignees of Tenant, without notifying
Tenant, or any successor of Tenant, and without obtaining its or their
consent thereto and any such actions shall not relieve Tenant of
liability under this Lease.
e. If Tenant assigns the Lease or sublets the Premises or requests the
consent of Landlord to any assignment or subletting or if Tenant
requests the consent of Landlord for any act that Tenant proposes to do,
then Tenant shall, upon demand, pay Landlord an administrative fee of
One Hundred Fifty and No/100ths Dollars ($150.00) plus any attorneys'
fees reasonably incurred by Landlord in connection with such act or
request.
17. HOLDING OVER.
If after expiration of the Term, Tenant remains in possession of the Premises
with Landlord's permission (express or implied), Tenant shall become a tenant
from month to month only, upon all the provisions of this Lease (except as to
term and Base Rent), but the "Monthly Installments of Base Rent" payable by
Tenant shall be increased to one hundred fifty percent (150%) of the Monthly
Installments of Base Rent payable by Tenant at the expiration of the Term. Such
monthly rent shall be payable in advance on or before the first day of each
month. If either party desires to terminate such month to month tenancy, it
shall give the other party not less than thirty (30) days advance written notice
of the date of termination.
18. SURRENDER OF PREMISES.
a. Tenant shall peaceably surrender the Premises to Landlord on the
Expiration Date, in broom-clean condition and in as good condition as
when ▇▇▇▇▇▇ took possession, except for (i) reasonable wear and tear,
(ii) loss by fire or other casualty, and (iii) loss by condemnation.
Tenant shall, on ▇▇▇▇▇▇▇▇'s request, remove ▇▇▇▇▇▇'s Property on or
before the Expiration Date and promptly repair all damage to the
Premises or Building caused by such removal.
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b. If ▇▇▇▇▇▇ abandons or surrenders the Premises, or is dispossessed by
process of law or otherwise, any of Tenant's Property left on the
Premises shall be deemed to be abandoned, and, at Landlord's option,
title shall pass to Landlord under this Lease as by a bill of sale. If
Landlord elects to remove all or any part of such Tenant's Property, the
cost of removal, including repairing any damage to the Premises or
Building caused by such removal, shall be paid by Tenant. On the
Expiration Date Tenant shall surrender all keys to the Premises.
19. DESTRUCTION OR DAMAGE.
a. If the Premises or the portion of the Building necessary for ▇▇▇▇▇▇'s
occupancy is damaged by fire, earthquake, act of God, the elements of
other casually, Landlord shall, subject to the provisions of this
Article, promptly repair the damage, if such repairs can, in Landlord's
opinion, be completed within (90) ninety days. If Landlord determines
that repairs can be completed within ninety (90) days, this Lease shall
remain in full force and effect, except that if such damage is not the
result of the negligence or willful misconduct of Tenant or Tenant's
agents, employees, contractors, licensees or invitees, the Base Rent
shall be abated to the extent Tenant's use of the Premises is impaired,
commencing with the date of damage and continuing until completion of
the repairs required of Landlord under Section 19d.
b. If in Landlord's opinion, such repairs to the Premises or portion of
the Building necessary for Tenant's occupancy cannot be completed within
ninety (90) days, Landlord may elect, upon notice to Tenant given within
thirty (30) days after the date of such fire or other casualty, to
repair such damage, in which event this Lease shall continue in full
force and effect, but the Base Rent shall be partially abated as
provided in Section 19a. If Landlord does not so elect to make such
repairs, this Lease shall terminate as of the date of such fire or other
casualty.
c. If any other portion of the Building or Project is totally destroyed
or damaged to the extent that in Landlord's opinion repair thereof
cannot be completed within ninety (90) days, Landlord may elect upon
notice to Tenant given within thirty (30) days after the date of such
fire or other casualty, to repair such damage, in which event this Lease
shall continue in full force and effect, but the Base Rent shall be
partially abated as provided in Section 19a. If Landlord does not elect
to make such repairs, this Lease shall terminate as of the date of such
fire or other casualty.
d. If the Premises are to be repaired under this Article, Landlord shall
repair at its cost any injury or damage to the Building and Building
Standard Work in the Premises. Tenant shall be responsible at its sole
cost and expense for the repair, restoration and replacement of any
other Leasehold Improvements and Tenant's Property. Landlord shall not
be liable for any loss of business, inconvenience or annoyance arising
from any repair or restoration of any portion of the Premises, Building
or Project as a result of any damage from fire or other casualty.
e. This Lease shall be considered an express agreement governing any
case of damage to or destruction of the Premises, Building or Project by
fire or other casualty, and any present or future law which purports to
govern the rights of Landlord and Tenant in such circumstances in the
absence of express agreement, shall have no application.
20. EMINENT DOMAIN.
a. If the whole of the Building or Premises is lawfully taken by
condemnation or in any other manner for any public or quasi-public
purpose, this Lease shall terminate as of the date of such taking, and
Rent shall be prorated to such date. If less than the whole of the
Building or Premises is so taken, this Lease shall be unaffected by such
taking, provided that (i) Tenant shall have the right to terminate this
Lease by notice to Landlord given within ninety (90) days after the date
of such taking if twenty percent (20%) or more of the Premises is taken
and the remaining area of the Premises is not reasonably sufficient for
Tenant to continue operation of its business, and (ii) Landlord shall
have the right to terminate this Lease by notice to Tenant given within
ninety (90) days after the date of such taking. If either Landlord or
Tenant so elects to terminate this Lease, the Lease shall terminate on
the thirtieth (30th) day after either such notice. The Rent shall be
prorated to the date of termination. If this Lease continues in force
upon such partial taking, the Base Rent and ▇▇▇▇▇▇'s Proportionate Share
shall be equitably adjusted according to the remaining Rentable Area of
the Premises and Project.
b. In the event of any taking, partial or whole, all of the proceeds of
any award, judgement or settlement payable by the condemning authority
shall be the exclusive property of Landlord, and Tenant hereby assigns
to Landlord all of its right, title and interest in any award, judgment
or settlement from the condemning authority. Tenant, however, shall have
the right, to the extent that Landlord's award is not reduced or
prejudiced, to claim from the condemning authority (but not from
Landlord) such compensation as may be recoverable by Tenant in its own
right for relocation expenses and damage to ▇▇▇▇▇▇'s personal property.
c. In the event of a partial taking of the Premises which does not
result in a termination of this Lease, Landlord shall restore the
remaining portion of the Premises as nearly as practicable to its
condition prior to the condemnation or taking, but only to the extent of
Building Standard Work. Tenant shall be responsible at its sole cost and
expense for the repair, restoration and replacement of any other
Leasehold Improvements and Tenant's Property.
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21. INDEMNIFICATION.
a. Tenant shall indemnify and hold Landlord harmless against and from
liability and claims of any kind for loss or damage to property of
Tenant or any other person, or for any injury to or death of any person,
arising out of: (1) Tenant's use and occupancy of the Premises, or any
work, activity or other things allowed or suffered by Tenant to be done
in, on or about the Premises; (2) any breach or default by Tenant of any
of Tenant's obligations under this Lease; or (3) any negligent or
otherwise tortious act or omission of Tenant, its agents, employees,
invitees or contractors. Tenant shall at Tenant's expense, and by
counsel satisfactory to Landlord, defend Landlord in any action or
proceeding arising from any such claim and shall indemnify Landlord
against all costs, attorneys' fees, expert witness fees and any other
expenses incurred in such action or proceeding. As a material part of
the consideration for ▇▇▇▇▇▇▇▇'s execution of this Lease, ▇▇▇▇▇▇ hereby
assumes all risk of damage or injury to any person or property in, on or
about the Premises from any cause.
b. Landlord shall not be liable for injury or damage which may be
sustained by the person or property of Tenant, its employees, invitees
or customers, or any other person in or about the Premises, caused by or
resulting from fire, steam, electricity, gas, water or rain which may
leak or flow from or into any part of the Premises, or from the
breakage, leakage, obstruction or other defects of pipes, sprinklers,
wires, appliances, plumbing; air conditioning or lighting fixtures,
whether such damage or injury results from conditions arising upon the
Premises or upon other portions of the Building or Project or from other
sources. Landlord shall not be liable for any damages arising from any
act or omission of any other tenant of the Building or Project.
22. TENANT'S INSURANCE.
a. All insurance required to be carried by Tenant hereunder shall be
issued by responsible insurance companies acceptable to Landlord and
Landlord's lender and qualified to do business in the State. Each policy
shall name ▇▇▇▇▇▇▇▇, and at ▇▇▇▇▇▇▇▇'s request any mortgagee of
Landlord, as an additional insured, as their respective interests may
appear. Each policy shall contain (i) a cross-liability endorsement,
(ii) a provision that such policy and the coverage evidenced thereby
shall be primary and non-contributing with respect to any policies
carried by Landlord and that any coverage carried by Landlord shall be
excess insurance, and (iii) a waiver by the insurer of any right of
subrogation against Landlord, its agents, employees and representatives,
which arises or might arise by reason of any payment under such policy
or by reason of any act or omission of Landlord, its agents, employees
or representatives. A copy of each paid up policy (authenticated by the
insurer) or certificate of the insurer evidencing the existence and
amount of each insurance policy required hereunder shall be delivered to
Landlord before the date Tenant is first given the right of possession
of the Premises, and thereafter within thirty (30) days after any demand
by Landlord therefor. Landlord may, at any time and from time to time,
inspect and/or copy any insurance policies required to be maintained by
Tenant hereunder. No such policy shall be cancelable except after twenty
(20) days written notice to Landlord and Landlord's lender. Tenant shall
furnish Landlord with renewals or "binders" of any such policy at least
ten (10) days prior to the expiration thereof. Tenant agrees that if
▇▇▇▇▇▇ does not take out and maintain such insurance, Landlord may (but
shall not be required to) procure said insurance on Tenant's behalf and
charge the Tenant the premiums together with a twenty-five percent (25%)
handling charge, payable upon demand. Tenant shall have the right to
provide such insurance coverage pursuant to blanket policies obtained by
the Tenant, provided such blanket policies expressly afford coverage to
the Premises, Landlord, ▇▇▇▇▇▇▇▇'s mortgagee and Tenant as required by
this Lease.
b. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall
procure, pay for and maintain in effect policies of casualty insurance
covering (i) all Leasehold Improvements (including any alterations,
additions or improvements as may be made by Tenant pursuant to the
provisions of Article 12 hereof), and (ii) trade fixtures, merchandise
and other personal property from time to time in, on or about the
Premises, in an amount not less than one hundred percent (100%) of their
actual replacement cost from time to time, providing protection against
any peril included within the classification "Fire and Extended
Coverage" together with insurance against sprinkler damage, vandalism
and malicious mischief. The proceeds of such insurance shall be used for
the repair or replacement of the property so insured. Upon termination
of this Lease following a casualty as set forth herein, the proceeds
under (i) shall be paid to Landlord, and the proceeds under (ii) above
shall be paid to Tenant.
c. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall
procure, pay for and maintain in effect workers' compensation insurance
as required by law and comprehensive public liability and property
damage insurance with respect to the construction of improvements on the
Premises, the use, operation or condition of the Premises and the
operations of Tenant in, on or about the Premises, providing personal
injury and broad form property damage coverage for not less than One
Million Dollars ($1,000,000.00) combined single limit for bodily injury,
death and property damage liability.
d. Not less than every three (3) years during the Term, Landlord and
Tenant shall mutually agree to increases in all of Tenant's insurance
policy limits for all Insurance to be carried by Tenant as set forth in
this Article. In the event Landlord and ▇▇▇▇▇▇ cannot mutually agree
upon the amounts of said increases, then ▇▇▇▇▇▇ agrees that all
insurance policy limits as set forth in this Article shall be adjusted
for increases in the cost of living in the same manner as is set forth
in Section 5.2 hereof for the adjustment of the Base Rent.
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23. WAIVER OF SUBROGATION.
Landlord and Tenant each hereby waive all rights of recovery against the other
and against the officers, employees, agents and representatives of the other, on
account of loss by or damage to the waiving party of its property or the
property of others under its control, to the extent that such loss or damage is
insured against under any fire and extended coverage insurance policy which
either may have in force at the time of the loss or damage, Tenant shall, upon
obtaining the policies of insurance required under this Lease, give notice to
its insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease.
24. SUBORDINATION AND ATTORNMENT.
Upon written request of ▇▇▇▇▇▇▇▇, or any first mortgagee or first deed of trust
beneficiary of Landlord, or ground lessor of Landlord, Tenant shall, in writing,
subordinate its rights under this Lease to the lien of any first mortgage or
first deed of trust, or to the interest of any lease in which Landlord is
lessee, and to all advances made or hereafter to be made thereunder. However,
before signing any subordination agreement, Tenant shall have the right to
obtain from any lender or lessor or Landlord requesting such subordination, an
agreement in writing providing that, as long as Tenant is not in default
hereunder, this Lease shall remain in effect for the full Term. The holder of
any security interest may, upon written notice to Tenant, elect to have this
Lease prior to its security interest regardless of the time of the granting or
recording of such security interest.
In the event of any foreclosure sale, transfer in lieu of foreclosure or
termination of the lease in which Landlord is lessee, Tenant shall attorn to the
purchaser, transferee or lessor as the case may be, and recognize that party as
Landlord under this Lease, provided such party acquires and accepts the Premises
subject to this Lease.
25. TENANT ESTOPPEL CERTIFICATES.
Within ten (10) days after written request from Landlord, Tenant shall execute
and deliver to Landlord or Landlord's designee, a written statement certifying
(a) that this Lease is unmodified and in full force and effect, or is in full
force and effect as modified and stating the modifications; (b) the amount of
Base Rent and the date to which Base Rent and additional rent have been paid in
advance; (c) the amount of any security deposited with Landlord; and (d) that
Landlord is not in default hereunder or, if ▇▇▇▇▇▇▇▇ is claimed to be in
default, stating the nature of any claimed default. Any such statement may be
relied upon by a purchaser, assignee or lender. Tenant's failure to execute and
deliver such statement within the time required shall at Landlord's election be
a default under this Lease and shall also be conclusive upon Tenant that: (1)
this Lease is in full force and effect and has not been modified except as
represented by Landlord; (2) there are no uncured defaults in Landlord's
performance and that Tenant has no right of offset, counter-claim or deduction
against Rent; and (3) not more than one month's Rent has been paid in advance.
26. TRANSFER OF LANDLORD'S INTEREST.
In the event of any sale or transfer by Landlord of the Premises, Building or
Project, and assignment of this Lease by Landlord, Landlord shall be and is
hereby entirely freed and relieved of any and all liability and obligations
contained in or derived from this Lease arising out of any act, occurrence or
omission relating to the Premises, Building, Project or Lease occurring after
the consummation of such sale or transfer, providing the purchaser shall
expressly assume all of the covenants and obligations of Landlord under this
Lease. If any security deposit or prepaid Rent has been paid by Tenant, Landlord
may transfer the security deposit or prepaid Rent to Landlord's successor and
upon such transfer, Landlord shall be relieved of any and all further liability
with respect thereto.
27. DEFAULT.
27.1. Tenant's Default. The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by Tenant:
a. If Tenant abandons or vacates the Premises; or
b. If Tenant fails to pay any Rent or any other charges required to be
paid by Tenant under this Lease and such failure continues for five (5)
days after such payment is due and payable; or
c. If Tenant fails to promptly and fully perform any other covenant,
condition or agreement contained in this Lease and such failure
continues for thirty (30) days after written notice thereof from
Landlord to Tenant; or
d. If a writ of attachment or execution is levied on this Lease or on
any of Tenant's Property; or
e. If ▇▇▇▇▇▇ makes a general assignment for the benefit of creditors, or
provides for an arrangement, composition, extension or adjustment with
its creditors; or
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f. If Tenant files a voluntary petition for relief or if a petition
against Tenant in a proceeding under the federal bankruptcy laws or
other insolvency laws is filed and not withdrawn or dismissed will, in
forty-five (45) days thereafter, or if under the provisions of any law
providing for reorganization or winding up of corporations, any court of
competent jurisdiction assumes jurisdiction, custody or control of
Tenant or any substantial part of its property and such jurisdiction,
custody or control remains in force unrelinquished, unstayed or
unterminated for a period of forty-five (45) days; or
g. If in any proceeding or action in which Tenant is a party, a trustee,
receiver, agent or custodian is appointed to take charge of the Premises
or Tenant's Property (or has the authority to do so) for the purpose of
enforcing a lien against the Premises or Tenant's Property; or
h. If Tenant is a partnership or consists of more than one (1) person or
entity, if any partner of the partnership or other person or entity is
involved in any of the acts or events described in subparagraphs d
through g above.
27.2. Remedies. In the event of ▇▇▇▇▇▇'s default hereunder, then in addition to
any other rights or remedies Landlord may have under any law, Landlord shall
have the right, at Landlord's option, without further notice or demand of any
kind to do the following:
a. Terminate this Lease and ▇▇▇▇▇▇'s right to possession of the Premises
and reenter the Premises and take possession thereof, and Tenant shall
have no further claim to the Premises or under this Lease; or
b. Continue this Lease in effect, reenter and occupy the Premises for
the account of Tenant, and collect any unpaid Rent or other charges
which have or thereafter become due and payable; or
c. Reenter the Premises under the provisions of subparagraph b, and
thereafter elect to terminate this Lease and ▇▇▇▇▇▇'s right to
possession of the Premises.
If Landlord reenters the Premises under the provisions of subparagraphs b or c
above, Landlord shall not be deemed to have terminated this Lease or the
obligation of Tenant to pay any Rent or other charges thereafter accruing,
unless Landlord notifies Tenant in writing of Landlord's election to terminate
this Lease. In the event of any reentry or retaking of possession by Landlord,
Landlord shall have the right, but not the obligation, to remove all or any part
of Tenant's Property in the Premises and to place such property in storage at a
public warehouse at the expense and risk of Tenant. If Landlord elects to relet
the Premises for the account of Tenant, the rent received by Landlord from such
reletting shall be applied as follows: first, to the payment of any indebtedness
other than Rent due hereunder from Tenant to Landlord; second, to the payment of
any costs of such reletting; third, to the payment of the cost of any
alterations or repairs to the Premises; fourth, to the payment of Rent due and
unpaid hereunder; and the balance, if any, shall be held by Landlord and applied
in payment of future Rent as it becomes due. If that portion of rent received
from the reletting which is applied against the Rent due hereunder is less than
the amount of the Rent due; Tenant shall pay the deficiency to Landlord promptly
upon demand by Landlord. Such deficiency shall be calculated and paid monthly,
Tenant shall also pay to Landlord, as soon as determined, any costs and expenses
incurred by Landlord in connection with such reletting or in making alterations
and repairs to the Premises, which are not covered by the rent received from the
reletting.
Should Landlord elect to terminate this Lease under the provisions of
subparagraph a or c above, Landlord may recover as damages from Tenant the
following:
1. Past Rent. The worth at the time of the award of any unpaid Rent
which had been earned at the time of termination; plus
2. Rent Prior to Award. The worth at the time of the award of the amount
by which the unpaid Rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided; plus
3. Rent After Award. 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
award exceeds the amount of the rental loss that Tenant proves could be
reasonably avoided; plus
4. Proximately Caused Damages. Any other amount necessary to compensate
Landlord for all detriment proximately caused by ▇▇▇▇▇▇'s failure to
perform its obligations under this Lease or which in the ordinary course
of things would be likely to result therefrom, including, but not
limited to, any costs or expenses (including attorneys' fees), incurred
by Landlord in (a) retaking possession of the Premises, (b) maintaining
the Premises after Tenant's default, (c) preparing the Premises for
reletting to a new tenant, including any repairs or alterations, and (d)
reletting the Premises, including broker's commissions.
"The worth at the time of the award" as used in subparagraphs 1 and 2 above, is
to be computed by allowing interest at the rate of ten percent (10 %) per annum.
"The worth at the time of the award" as used in subparagraph 3 above, is to be
computed by discounting the amount at the discount rate of the Federal Reserve
Bank situated nearest to the Premises at the time of the award plus one percent
(1%).
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The waiver by Landlord of any breach of any term, covenant or condition of this
Lease shall not be deemed a waiver of such term, covenant or condition or of any
subsequent breach of the same or any other term, covenant or condition.
Acceptance of Rent by Landlord subsequent to any breach hereof shall not be
deemed a waiver of any preceding breach other than the failure to pay the
particular Rent so accepted, regardless of Landlord's knowledge of any breach at
the time of such acceptance of Rent. Landlord shall not be deemed to have waived
any term, covenant or condition unless Landlord gives Tenant written notice of
such waiver.
27.3 Landlords Default. If Landlord fails to perform any covenant, condition or
agreement contained in this Lease within thirty (30)days after receipt of
written notice from Tenant specifying such default, or if such default cannot
reasonably be cured within thirty(30) days, if Landlord fails to commence to
cure within that thirty (30) day period, then Landlord shall be liable to Tenant
for any damages sustained by ▇▇▇▇▇▇ as a result of Landlord's breach; provided,
however, it is expressly understood and agreed that if Tenant obtains a money
judgment against Landlord resulting from any default or other claim arising
under this Lease, that judgment shall be satisfied only out of the rents,
issues, profits, and other income actually received on account of Landlord's
right, title and interest in the Premises, Building or Project, and no other
real, personal or mixed property of Landlord (or of any of the partners which
comprise Landlord, if any) wherever situated, shall be subject to levy to
satisfy such judgment. If, after notice to Landlord of default, Landlord (or any
first mortgagee or first deed of trust beneficiary of Landlord) fails to cure
the default as provided herein, then Tenant shall have the right to cure that
default at Landlord's expense. Tenant shall not have the right to terminate this
Lease or to withhold, reduce or offset any amount against any payments of Rent
or any other charges due and payable under this Lease except as otherwise
specifically provided herein.
28. BROKERAGE FEES.
Tenant warrants and represents that it has not dealt with any real estate broker
or agent in connection with this Lease or its negotiation except those noted in
Section 2.c. Tenant shall indemnify and hold Landlord harmless from any cost,
expense or liability (including costs of suit and reasonable attorneys' fees)
for any compensation, commission or fees claimed by any other real estate broker
or agent in connection with this Lease or its negotiation by reason of any act
of Tenant.
29. NOTICES.
All notices, approvals and demands permitted or required to be given under this
Lease shall be in writing and deemed duly served or given if personally
delivered or sent by certified or registered U.S. mail, postage prepaid, and
addressed as follows: (a) if to Landlord, to Landlord's Mailing Address and to
the Building manager, and (b) if to Tenant, to Tenant's Mailing Address;
provided, however, notices to Tenant shall be deemed duly served or given if
delivered or mailed to Tenant at the Premises. Landlord and ▇▇▇▇▇▇ may from time
to time by notice to the other designate another place for receipt of future
notices.
30. GOVERNMENT ENERGY OR UTILITY CONTROLS.
In the event of imposition of federal, state or local government controls,
rules, regulations, or restrictions on the use or consumption of energy or other
utilities during the Term, both Landlord and Tenant shall be bound thereby. In
the event of a difference in interpretation by ▇▇▇▇▇▇▇▇ and Tenant of any such
controls, the interpretation of Landlord shall prevail, and Landlord shall have
the right to enforce compliance therewith, including the right of entry into the
Premises to effect compliance.
31. RELOCATION OF PREMISES.
Landlord shall have the right to relocate the Premises to another Part of the
Building in accordance with the following:
a. The new premises shall be substantially the same in size, dimensions,
configuration, decor and nature as the Premises described in this Lease,
and if the relocation occurs after the Commencement Date, shall be
placed in that condition by Landlord at its cost.
b. Landlord shall give Tenant at least thirty (30) days written notice
of ▇▇▇▇▇▇▇▇'s intention to relocate the Premises.
c. As nearly as practicable, the physical relocation of the Premises
shall take place on a weekend and shall be completed before the
following Monday. If the Physical relocation has not been completed in
that time, Base Rent shall ▇▇▇▇▇ in full from the time the physical
relocation commences to the time it is completed. Upon completion of
such relocation, the new premises shall become the "Premises" under this
Lease.
d. All reasonable costs incurred by Tenant as a result of the relocation
shall be paid by Landlord.
e. If the new premises are smaller than the Premises as it existed
before the relocation, Base Rent shall be reduced proportionately.
f. The parties hereto shall immediately execute an amendment to this
Lease setting forth the relocation of the Premises and the
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reduction of Base Rent, if any.
32. QUIET ENJOYMENT.
Tenant, upon paying the Rent and performing all of its obligations under this
Lease, shall peaceably and quietly enjoy the Premises, subject to the terms of
this Lease and to any mortgage, lease, or other agreement to which this Lease
may be subordinate.
33. OBSERVANCE OF LAW.
Tenant shall not use the Premises or permit anything to be done in or about the
Premises which will in any way conflict with any law, statute, ordinance or
governmental rule or regulation now in force or which may hereafter be enacted
or promulgated. Tenant shall, at its sole cost and expense, promptly comply with
all laws, statutes, ordinances and governmental rules, regulations or
requirements now in force or which may hereafter be in force, and with the
requirements of any board of fire insurance underwriters or other similar bodies
now or hereafter constituted, relating to, or affecting the condition, use or
occupancy of the Premises, excluding structural changes not related to or
affected by Tenant's improvements or acts. The judgment of any court of
competent jurisdiction or the admission of Tenant in any action against Tenant,
whether Landlord is a party thereto or not, that Tenant has violated any law,
ordinance or governmental rule, regulation or requirement, shall be conclusive
of that fact as between Landlord and Tenant.
34. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed by Landlord or Tenant
which is due to strikes, labor disputes, inability to obtain labor, materials,
equipment or reasonable substitutes therefor, acts of God, governmental
restrictions or regulations or controls, judicial orders, enemy or hostile
government actions, civil commotion, fire or other casualty, or other causes
beyond the reasonable control of the party obligated to perform hereunder, shall
excuse performance of the work by that party for a period equal to the duration
of that prevention, delay or stoppage. Nothing in this Article 34 shall excuse
or delay ▇▇▇▇▇▇'s obligation to pay Rent or other charges under this Lease.
35. CURING TENANT'S DEFAULTS.
If Tenant defaults in the performance of any of its obligations under this
Lease, Landlord may (but shall not be obligated to) without waiving such
default, perform the same for the account at the expense of Tenant. Tenant shall
pay Landlord all costs of such performance promptly upon receipt of a bill
therefor.
36. SIGN CONTROL.
Tenant shall not affix, paint, erect or inscribe any sign, projection, awning,
signal or advertisement of any kind to any part of the Premises, Building or
Project, including without limitation, the inside or outside of windows or
doors, without the written consent of Landlord. Landlord shall have the right to
remove any signs or other matter, installed without ▇▇▇▇▇▇▇▇'s permission,
without being liable to Tenant by reason of such removal, and to charge the cost
of removal to Tenant as additional rent hereunder, payable within ten (10) days
of written demand by ▇▇▇▇▇▇▇▇.
37. MISCELLANEOUS.
a. Accord and Satisfaction; Allocation of Payments. No payment by Tenant or
receipt by Landlord of a lesser amount than the Rent provided for in this Lease
shall be deemed to be other than on account of the earliest due Rent, nor shall
any endorsement or statement on any check or letter accompanying any check or
payment as Rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of the Rent or pursue any other remedy provided for in this Lease. In
connection with the foregoing, Landlord shall have the absolute right in its
sole discretion to apply any payment received from Tenant to any account or
other payment of Tenant then not current and due or delinquent.
b. Addenda. If any provision contained in an addendum to this Lease is
inconsistent with any other provision herein, the provision contained in the
addendum shall control, unless otherwise provided in the addendum.
c. Attorneys' Fees. If any action or proceeding is brought by either party
against the other pertaining to or arising out of this Lease, the finally
prevailing party shall be entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred on account of such action or proceeding.
d. Captions, Articles and Section Numbers. The captions appearing within the
body of this Lease have been inserted as a matter of convenience and for
reference only and in no way define, limit or enlarge the scope or meaning of
this Lease. All references to Article and Section numbers refer to Articles and
Sections in this Lease.
e. Changes Requested by ▇▇▇▇▇▇. Neither Landlord or Tenant shall unreasonably
withhold its consent to changes or amendments to this Lease requested by the
lender on Landlord's interest, so long as these changes do not alter the
business terms of this Lease
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or otherwise materially diminish any rights or materially increase any
obligations of the party from whom consent to such charge or amendment is
requested.
f. Choice of Law. This Lease shall be construed and enforced in accordance with
the laws of the State.
g. Consent. Notwithstanding anything contained in this Lease to the contrary,
Tenant shall have no claim, and hereby waives the right to any claim against
Landlord for money damages by reason of any refusal, withholding or delaying by
Landlord of any consent, approval or statement of satisfaction, and in such
event, ▇▇▇▇▇▇'s only remedies therefor shall be an action for specific
performance, injunction or declaratory judgement to enforce any right to such
consent, etc.
h. Corporate Authority. If Tenant is a corporation, each individual signing this
Lease on behalf of Tenant represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of the corporation and that this Lease
is binding on Tenant in accordance with its terms. Tenant shall, at ▇▇▇▇▇▇▇▇'s
request, deliver a certified copy of a resolution of its board of directors
authorizing such execution.
i. Counterparts. This Lease may be executed in multiple counterparts, all of
which shall constitute one and the same Lease.
j. Execution of Lease; No Option. The submission of this Lease to Tenant shall
be for examination purposes only, and does not and shall not constitute a
reservation of or option for Tenant to lease, or otherwise create any interest
of Tenant in the Premises or any other premises within the Building or Project.
Execution of this Lease by Tenant and its return to Landlord shall not be
binding on Landlord notwithstanding any time interval, until Landlord has in
fact signed and delivered this Lease to Tenant.
k. Furnishing of Financial Statements. Tenant's Representations. In order to
induce the Landlord to enter into this Lease, ▇▇▇▇▇▇ agrees that it shall
promptly furnish Landlord, from time to time, upon ▇▇▇▇▇▇▇▇'s written request,
with financial statements reflecting ▇▇▇▇▇▇'s current financial condition.
Tenant represents and warrants that all financial statements, records and
information furnished by Tenant to Landlord in connection with this Lease are
true, correct and complete in all respects.
l. Further Assurances. The parties agree to promptly sign all documents
reasonably requested to give effect to the provisions of this Lease.
m. Mortgagee Protection. ▇▇▇▇▇▇ agrees to send by certified or registered mail
to any first mortgagee or first deed of trust beneficiary of Landlord whose
address has been furnished to Tenant, a copy of any notice of default served by
Tenant on Landlord. If Landlord fails to cure such default within the time
provided for in this Lease, such mortgagee or beneficiary shall have an
additional thirty (30) days to cure such default; provided that if such default
cannot reasonable be cured within that thirty (30) day period, then such
mortgagee or beneficiary shall have such additional time to cure the default as
is reasonably necessary under the circumstances.
n. Prior Agreements; Amendments. This Lease contains all of the agreements of
the parties with respect to any matter covered or mentioned in this Lease, and
no prior agreement or understanding pertaining to any such matter shall be
effective for any purpose. No provisions of this Lease may be amended or added
to except by an agreement in writing signed by the parties or their respective
successors in interest.
o. Recording. Tenant shall not record this Lease without the prior written
consent of Landlord. Tenant, upon the request of ▇▇▇▇▇▇▇▇, shall execute and
acknowledge a "short form" memorandum of this Lease for recording purposes.
p. Severability. A final determination by a court of competent jurisdiction that
any provision of this Lease is invalid shall not affect the validity of any
other provision, and any provision so determined to be invalid shall, to the
extent possible, be construed to accomplish its intended effect.
q. Successors and Assigns. This Lease shall apply to and bind the heirs,
personal representatives, and permitted successors and assigns of the parties.
r. Time of the Essence. Time is of the essence of this Lease.
s. Waiver. No delay or omission in the exercise of any right or remedy of
Landlord upon any default by Tenant shall impair such right or remedy or be
construed as a waiver of such default.
The receipt and acceptance by Landlord of delinquent Rent shall not constitute a
waiver of any other default; it shall constitute only a waiver of timely payment
for the particular Rent payment involved.
No act or conduct of Landlord, including, without limitation, the acceptance of
keys to the Premises, shall constitute an acceptance of the surrender of the
Premises by Tenant before the expiration of the Term. Only a written notice from
Landlord to Tenant shall constitute acceptance of the surrender of the Premises
and accomplish a termination of the Lease.
▇▇▇▇▇▇▇▇'s consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to waive or
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render unnecessary ▇▇▇▇▇▇▇▇'s consent to or approval of any subsequent act by
▇▇▇▇▇▇.
Any waiver by Landlord of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of the
Lease.
THE PARTIES HERETO HAVE EXECUTED THIS LEASE AS OF THE DATES SET FORTH BELOW.
Date: Date:
---------------------------- ------------------------------------
Landlord: WHITTIER NARROWS BUSINESS Tenant: OPTIMUM CARE CORPORATION
PARK A Delaware Corporation
c/o Liberty West Inc.
By: By:
------------------------------- -------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇, President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
CONSULT YOUR ADVISORS - This document has been prepared for approval by your
attorney. No representation or recommendation is made as to the legal
sufficiency or tax consequences of this document of the transaction to which it
relates. These are questions for your attorney.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other person,
with experience in evaluating the condition of the property, including the
possible presence of asbestos, hazardous materials and underground storage
tanks.
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ADDENDUM TO LEASE
ADDENDA TO THAT LEASE, DATED FOR REFERENCE PURPOSES ONLY, JULY 28, 1998, BETWEEN
WHITTIER NARROWS BUSINESS PARK, AS LANDLORD, AND OPTIMUM CARE CORPORATION, A
DELAWARE CORPORATION, AS TENANT.
38. TENANT IMPROVEMENTS: Landlord will deliver Premises in its as-is condition,
with the exception that Landlord will perform the following improvements, before
the Commencement Date of the Lease, per the attached plan marked Exhibit "C":
1) remove the wall between rooms B and C, and the easterly wall and door of
room K
2) patch and paint areas where walls were removed
3) repair carpet in areas where walls were removed
4) install a door on the westerly wall of room K if possible. Otherwise,
door to be placed on westerly wall of rooms C or D
5) clean carpets
The cost of the above improvements (estimated to be approximately $ 2,500 - $
3,000) is being amortized into the Base Rent over a three year period. Tenant
will be responsible for any unamortized portion of the above improvement cost if
Tenant occupies the space for less than three (3) years.
39. RENTAL RATE: Notwithstanding any of the provisions of Sections 2.a., 2.j.
2.q. and Section 5 of the Lease, the Rental Rate to be fixed for the initial
term of the Lease.
40. COMMENCEMENT DATE: Lease to commence upon the earlier of either August 15,
1998 or the date the above improvements are completed.
41. UTILITIES: Notwithstanding the provisions of Section 9 of the Lease, Tenant
to be responsible for payment, to the proper utility company, of its own
electric bill for both suites, for the term of the Lease.
42. PARKING: Notwithstanding the provisions of Section 2.k. of the Lease,
Landlord agrees to not charge Tenant for the 8 non- exclusive parking spaces
during the term of the Lease.
APPROVED: APPROVED:
LANDLORD TENANT
Whittier Narrows Business Park Optimum Care Corporation
c/o Liberty West Inc. A Delaware Corporation
By: By:
------------------------------- -------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇, President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
DATE: SEP 01, 98 DATE: 8/8/98
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EXHIBIT "A"
▇▇▇▇▇▇▇▇ NARROWS BUSINESS PARK
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. EL MONTE CALIFORNIA
1170 ▇▇▇▇▇▇
FLOOR PLAN
(EXHIBIT A IS AN OUTLINE OF THE FLOOR PLAN)
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EXHIBIT "B"
▇▇▇▇▇▇▇▇ NARROWS BUSINESS PARK
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. EL MONTE CALIFORNIA
1170 ▇▇▇▇▇▇
ONE STORY BUILDING
18,000 SQ. FT.
(EXHIBIT B IS AN OUTLINE OF THE SITE PLAN)
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EXHIBIT B-1
A. AGREEMENT:
A.1 Lessor and ▇▇▇▇▇▇ agree to the construction of improvements in the Premises
according to the terms and conditions of the Lease, Exhibit A-1, and this
Exhibit B.
A.2 Lessee agrees to provide Lessor with a fully executed lease on or before
September 24, 1998.
A.3 Provided the A.2 deadline date is adhered to, Lessor will provide Lessee
with final detailed plans and specifications of all proposed improvements on or
before n/a.
A.4 Lessee will return to Lessor a copy of said final detailed plans and
specifications Exhibit A-1 approved by Lessee on or before n/a , subject to the
provisions or paragraph D.1 DELAYS of this Exhibit B.
A.5 Any changes required by Lessee to final plans and specifications previously
approved by both Lessor and Lessee, shall be approved by Lessor at its sole
discretion, subject to the provisions or paragraph D.1 DELAYS of this Exhibit B.
A.6 Provided Lessee and Lessor perform according to the mentioned provisions of
A.1 through A.5 and there are no Delays which are identified in provisions D.1 &
D.2 of this Exhibit, Lessor shall complete all final proposed improvements to
the best of its ability on or before November 15, 1998 .
▇. ▇▇▇▇▇▇ PAID IMPROVEMENT:
B.1 Lessee at its sole cost and expense will pay for the following improvements
to the Premises:
ITEM AMOUNT
1. Carpet Installation $2,700.00*
2. * (To be paid in monthly installments of $75.00 per month along with monthly
rental payment.)
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EXHIBIT C
(THIS EXHIBIT IS AN OUTLINE OF FLOOR PLAN FOR UNIT A AND UNIT B SHOWING PROPOSED
ALTERATIONS OF ADDING A DOOR AND REMOVING TWO WALLS.)
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EXHIBIT "D"
RULES AND REGULATIONS
WHITTIER NARROWS
BUSINESS PARK
1. Building Hours: 7:00 a.m. - 6:00 p.m. WEEKDAYS
HVAC: 7:00 a.m. - 6:00 p.m. WEEKDAYS
WNBP recognizes the following holidays:
President's Day
Memorial Day
Independence Day
Labor Day
Thanksgiving Day
Day after Thanksgiving
Christmas
New Year's Day
2. Overtime heating, ventilating and air conditioning must be requested at
least 24 hours in advance and is billed at $30.00 per hour.
3. The sidewalks, passages, exits and entrances shall not be obstructed by
Tenant or used for any purpose other than for ingress to and egress from
their respective premises. The Landlord shall in all cases retain the
right to control and prevent access by all persons whose presence, in
the judgment of the Landlord, shall be prejudicial to the safety,
character, reputation and interests of the Building and its Tenants,
provided that nothing herein contained shall be construed to prevent
such access to persons with whom the Tenants normally deal in the
ordinary course of Tenant's business, unless such persons are engaged in
illegal activities. No Tenant and no employees or invitees of any Tenant
shall go upon the roof of the Building.
4. The directory of the Building will be provided exclusively for the
display of the name and location of Tenant only, and Landlord reserves
the right to exclude any other names thereon.
5. No signs shall be attached to or placed in windows. No awning or shade
shall be affixed or installed over or in the windows or the exterior of
the Premises. The windows of the Building shall not be covered or
obstructed by Tenant.
6. The toilets and urinals shall not be used for any purpose other than
those for which they were constructed and no rubbish, newspapers or
other substances of any kind shall be thrown into them. Tenants shall
not mark, drive nails, screw or drill into, paint, nor in any way deface
the walls, ceilings, partitions or floors. The expense of any breakage,
stoppage or damage resulting from a violation of this rule shall be
borne by the Tenant who has caused such breakage, stoppage or damage.
7. Electric wiring of any kind shall be introduced and connected as
directed by ▇▇▇▇▇▇▇▇, and no boring or cutting for wires will be allowed
except with the consent of Landlord. The location of telephones, call
boxes, etc., shall be prescribed by Landlord.
8. Landlord reserves the right to prescribe the weight and position of all
safes and other heavy equipment so as to distribute properly the weight
thereof and to prevent any unsafe condition from arising. Safes or other
heavy objects shall, if considered necessary by Landlord, stand on wood
strips of such thickness as is necessary to properly distribute the
weight. Landlord will not be responsible for any loss or damage to any
such safe or property from any cause; but all damage done to the
Building by moving or maintaining any such safe or property shall be
repaired at the expense of Tenant.
9. There shall not be used in any space, or in the public halls of the
Building, either by Tenant or others, any hand trucks, except those
equipped with rubber tires and side guards.
10. No additional lock or locks shall be placed by Tenants on any door in
the Building unless written consent of Landlord shall have first been
obtained. Two keys will be furnished by Landlord for entry door or doors
only, and any additional keys required must be obtained from Landlord,
at Tenant's cost, and neither Tenant nor his agents or employees shall
have any
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Rules and Regulations
Whittier Narrows
Page Two
duplicate key made. The Tenant, upon termination of the tenancy, shall
deliver to the Landlord the keys of the offices, rooms and toilet rooms
which shall have been furnished, or shall pay the Landlord the cost of
replacing same or changing the lock or locks opened by such lost key if
Landlord deems it necessary to make such changes.
11. The carrying in or out of freight, furniture or bulky matter of any
description, must take place during such hours as Landlord may from time
to time reasonably determine. The installation and moving of such
property shall be made upon previous notice to the superintendent of the
Building, but Landlord shall not be responsible for loss of or damage to
such property, from any cause.
12. Tenant shall use, at Tenant's cost, such pest extermination contractor
as Landlord may direct and at such intervals as Landlord may require.
13. Tenant and tenant's officers, agents and employees shall not make or
permit any loud, unusual or improper noises, nor interfere in any way
with other Tenants or those having business with them, not bring into
nor keep any animal or bird, or any bicycle, automobile, or other
vehicle, except such vehicles as they are permitted to park in the
parking lot, and shall park in the areas designated from time to time
for employee parking.
14. Tenant shall not employ any person or person for the purpose of cleaning
the Premises unless otherwise agreed to by Landlord. Except with the
written consent of Landlord, no person other than those approved by
Landlord shall be permitted to enter the Building for the purpose of
cleaning same. Tenant shall not cause any unnecessary labor by reason of
▇▇▇▇▇▇'s carelessness or indifference in the preservation of good order
and cleanliness. Landlord shall in no way be responsible to Tenant for
any loss of property on the Premises, however occurring, or for any
damage done to the effects of Tenant by the janitor or any other
employee or any other person. Janitor service shall include ordinary
dusting and cleaning by the janitor assigned to such work and shall not
include cleaning of carpets or rugs, except normal vacuuming, or moving
of furniture and other special services.
15. No machinery of any kind will be allowed in the Premises without the
written consent of Landlord. This shall not apply, however, to customary
office equipment or trade fixtures or package handling equipment.
16. No aerial shall be erected on the roof or exterior walls of the
Premises, or on the grounds, without in each instance, the written
consent of Landlord.
17. Tenant shall not lay linoleum, tile, carpet or other similar floor
covering so that the same shall be affixed to the floor of the Premises
in any manner, except as approved by Landlord. The expense of repairing
any damage resulting from a violation of this rule or removal of any
floor covering shall be borne by the tenant by whom, or by whose
contractors, employees, or invitees, the damage shall have been caused.
18. All garbage, including wet garbage, refuse, or trash shall be placed by
the Tenant in the receptacles provided by the Landlord for the purpose.
19. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of
Landlord.
20. Landlord shall have the right, exercisable without notice and without
liability to Tenant, to change the name and the street address of the
Building of which the Premises are a part.
21. Tenant agrees that it shall comply with all fire and security
regulations that may be issued from time to time by Landlord, and ▇▇▇▇▇▇
also shall provide Landlord with the name of a designated responsible
employee to represent Tenant in all matters pertaining to such fire or
security regulations.
22. Tenant shall see that the doors of the Premises are closed and securely
locked before leaving the Building and must observe strict care and
caution that all water faucets or water apparatus are entirely shut off
before Tenant or Tenant's employees leave the Building, and that all
electricity shall be likewise carefully shut off, so as to prevent waste
or damage, and for any default or carelessness Tenant shall make good
all injuries sustained by Tenant, other tenants, or occupants of the
Building. Landlord reserves the right to close and keep locked all
entrances and exit doors of the Building before and after the normal
hours of operation, and during such further hours as Landlord may deem
advisable for the adequate
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Rules and Regulations
Whittier Narrows
Page Three
protection of said Building and the property of its tenants.
23. The requirements of Tenant will be attended to only upon application at
the Building Office. Employees of Landlord shall not perform any work or
do anything outside of their regular duties unless under special
instructions from Landlord, and no employee will admit any person
(Tenant or otherwise) to any office without specific instructions from
the Landlord.
24. Landlord reserves the right by written notice to Tenant to add to,
rescind, alter or waive these rules and regulations at any time
prescribed for the Building when, in Landlord's reasonable judgment, it
is necessary, desirable or proper for the best interest of the Building
and its Tenants.
25. Tenants shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate to prevent same.
All city and county ordinances shall be observed by Tenants in the use of this
Building and leased Premises.
It is understood and agreed between ▇▇▇▇▇▇ and Landlord that no assent or
consent to any waiver of any part hereof by Landlord in spirit or letter shall
be deemed or taken as made except when the same is done in writing and attached
to or endorsed hereon by Landlord.
In the event of any conflict between these rules and regulations or any further
or modified rules and regulations from time to time issued by Landlord and the
Lease provisions, the Lease provisions shall govern and control.
WHITTIER NARROWS BUSINESS PARK
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