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EXHIBIT 10.1
CONTRACT OF LEASE
KNOW
ALL MEN BY THESE PRESENTS:
This CONTRACT OF LEASE
made and entered into this 11th day of October, 2007 by and
between:
AVERON HOLDINGS CORPORATION, a corporation duly organized
and existing under and by virtue of the laws of the Philippines,
with principal office address at Jaka 6780 Building, 6780 Ayala
Avenue, Makati City, represented herein by its Assistant Vice
President & Senior Vice President, LODA C. PAPILLA
& ADELINE N. CARBONELL (hereinafter referred to as the
LESSOR);
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and –
MBS TEK CORPORATION, a corporation duly organized and
existing under and by virtue of the laws of the Philippines, with
principal office address at the 2/F Astillero Bldg., Oro Site,
Quezon Ave. Ext., Legaspi City 4500 and local address at the 6/F
RCC Center, Shaw Blvd., Pasig City, represented herein by its
_______________, __________________, (hereinafter referred to as
the LESSEE);
- W I T
N E S S E T H: That -
WHEREAS, the LESSOR is the
true, lawful and registered owner of the JAKA 6780
Building (the "Building"), consisting of Fifteen
(15) storeys with penthouse and basement, situated at 6780
Ayala Avenue, Makati City;
WHEREAS, the LESSEE
desires to lease a portion of the Building and the LESSOR is
willing to let the same to the LESSEE;
NOW, THEREFORE, for and in
consideration of the foregoing premises and the conditions
and stipulations hereinafter set forth, the LESSOR hereby
leases unto the LESSEE the 5th Floor of the Building
, described below, under the following terms
and conditions:
1.
LEASED PREMISES - The premises
subject of this Contract (the "Leased Premises") shall
consist of a gross area of
1,017 square meters ,
of the 5th Floor of the Building, as shown
on the sketch plan attached hereto as Annex "A" and made an
integral part hereof.
This lease does not extend
to the exterior portion of the Leased Premises, nor to the
corridors, passageways or hallways, lobbies and the like,
around or adjacent to the Leased Premises, and the painting,
posting or affixing of business signs, notices or advertising
media (if any be allowed by prior written consent of LESSOR)
in the exterior portions of the Leased Premises shall not be
construed as permitting or effecting an extension of this
lease to such portions.
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2.
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TERM OF LEASE - This Contract shall be for a period of
three (3) years, commencing on September 19, 2007
and automatically terminated on September
18, 2010 subject to renewal for another three (3) years, upon such
terms and conditions to be mutually agreed upon by the
parties. In case the LESSEE decides not to renew the
contract; it must inform the LESSOR in writing at least sixty (60)
calendar days before expiry of the lease term. Should
the LESSEE holdover and remain in possession of the
premises after the expiration or its renewal or extension without
the LESSOR’S consent, such holdover or continuous possession
shall not be deemed as a renewal of the lease, and the LESSEE shall
be obliged to pay a monthly rent equivalent to one hundred fifty
percent (150%) of the basic rent without prejudice to any right of
the LESSOR to file an ejectment suit to compel recovery of the
premises and recover whatever damages it may suffer because of
unlawful detainer.
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No
interruption in the physical possession by the LESSEE for any
reason shall serve to extend the term of this lease. The
LESSOR shall be entitled to the immediate recovery of the
possession of the Leased Premises upon such automatic
termination, without the necessity of any previous notice or
demand, or of any judicial action for ejectment or recession;
provided, however, that the continued possession by LESSEE of
the Leased Premises for fifteen (15) calendar days or more
after the said automatic termination of this Contract shall
never be interpreted as implied renewal thereof, the
provisions of Article 1670 of the new Civil Code to the
contrary notwithstanding, and no matter how long LESSEE may
continue the illegal possession of the Leased Premises
thereafter, LESSOR shall always retain the right to eject
LESSEE pursuant to the provisions of Sections 38 (a) and 38
(b) herein-below, which sections shall continue to have full
force and effect; provided, finally, that if the LESSEE should
persist in occupying the Leased Premises without any valid
lease contract in writing after the expiration or earlier
termination of this Contract, then LESSEE shall be liable to
pay LESSOR such reasonable value for the use and enjoyment of
said Leased Premises as may be determined by LESSOR in its
sole discretion, over and above any damages.
The
Parties agree that the Lessee shall be given a two (2) months
rent-free fit out period which shall commence on July 19, 2007
until September 18, 2007, provided that, utilities and Common
Area Charges for this period shall be for the exclusive
account of the Lessee. Moreover,
during the said fit-out period, the LESSEE, its officers,
employees, and agents are permitted to enter the Leased
Premises for the purpose of renovating the same, provided that
improvements to be made on the premises shall be subject to
appropriate permits and licenses and/or approvals by Landev
Corporation as administrators of the building.
3.
PRE-TERMINATION OF CONTRACT -
Should the LESSEE wish to pre-terminate this Contract of Lease
for whatever reason, the LESSEE shall notify the LESSOR in
writing at least sixty (60) calendar days in
advance of the pre-termination date, and shall, simultaneous
therewith, pay to the LESSOR a pre-termination penalty in an
amount equivalent to one (1) month’s
rental.
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4.
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RENTAL -For and in consideration of the use of the Leased
Premises, the LESSOR requires the LESSEE and the latter hereby
agree to pay monthly rental, to be paid to the LESSOR’s
office address in advance and within the first five (5) working
days of the month. The basic monthly rental of FOUR HUNDRED
FIFTY-FIVE THOUSAND SIX HUNDRED SIXTEEN
PESOS & 00/100 (Php 455,616.00) , Philippine
Currency, inclusive of 12% VAT, Payment
shall commence on the 1 st month of
the Lease Term and shall be covered by acceptable post dated checks
to be issued by batches of twelve (12) checks each batch to be
issue and submitted on the last month of each year prior to the
next year of the lease period, as follows:
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a.
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Eleven
(11) postdated checks for the first (1 st ) year of
the lease period submitted upon signing of the lease
contract;
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b.
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Twelve
(12) postdated checks for the second (2 nd ) year of
the lease period submitted on the tenth (10) month of the first (1
st ) year of
the lease contract;
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c.
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Ten
(10) postdated checks for the third (3 rd ) year of
the lease period submitted on the tenth (10) month of the second (2
nd ) year of
the lease contract.
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The
amount of checks for the 2 nd year
shall be adjusted accordingly based on the applicable
escalation rate for that year. No rentals shall be
recognized as having been paid unless evidenced by an Official
Receipt of the Lessor. Neither payment of rentals
made by the Lessee to unauthorized person are to be
recognized.
All
payments shall be made without the necessity of any previous
demand or service of a collector, it being understood that in
case of default, any amount owing shall automatically bear
interest at the rate of two percent (2%) per month, plus
penalty of two percent (2%) per month computed from the due
date until fully paid, and in addition, LESSEE shall be liable
to LESSOR for an additional sum equivalent to twenty-five
percent (25%) of the rentals due and unpaid as attorney's fees
in the event of litigation, without prejudice to the LESSOR's
right to terminate this Contract and to eject the LESSEE as
hereinafter set forth. Furthermore, and in addition
to the foregoing, in the event LESSEE incurs any delay in the
payment of rentals for a period of thirty (30) calendar days
or more, the LESSOR shall be entitled to summarily cut off all
electricity, telephone, water and other utility services to
the Leased Premises.
The LESSEE shall, upon the
execution of this Contract, make a deposit with the LESSOR in
amount equivalent to three (3) months rental amounting to
ONE MILLION THREE HUNDRED SIXTY-SIX THOUSAND EIGHT
HUNDRED FORTY-EIGHT PESOS & 00/100
(Php 1,366,848.00) Philippine Currency,
inclusive of 12% VAT, as advance rental. The said
advance rental shall be applicable on the
first and the last month s
of the lease term.
There
would be an escalation rate at ten percent (10%) per annum
based on the applicable monthly rental rates, which shall
commence effective on the second (2 nd) year
of the lease term and every year
thereafter until the third (3 rd )
year.
LEVEL PERIOD
OF
LEASE RATE/SQ.M. RENTAL
(VAT exclusive)
2007
-
2008 Php400.00/sq.m. Php406,800.00
/ month
2008
-
2009 Php440.00/sq.m. Php447,480.00
/ month
2009
-
2010 Php484.00/sq.m Php492,228.00
/ month
5.
COMMON AREA CHARGES - In addition to the
rent, Lessee agrees to pay, once each calendar month, its
proportionate share of all cost and expenses of every kind and
nature as may be paid or incurred by Lessor during the term of
this Lease for the Common Areas, which shall include, but not
be limited to, security services, janitorial services, water
and electrical charges and other utilities and services for
the Common Areas, right of way charges, management and
administrative services and
expenses. Lessee’s share will be in
accordance with the schedule of Common Area Charges set forth
below.
P 100.00 / sq.m./ month or ONE HUNDRED ONE THOUSAND SEVEN HUNDRED
PESOS (P101,700.00)
As the exigencies of the
situation may require, reasonable increase in Common Area
Charges will be effected upon proper notification of the
parties.
6.
SECURITY DEPOSIT -
The LESSEE shall, upon signing of this Contract or
conformity to the notice of approval whichever comes earlier,
pay the LESSOR an amount equivalent to three (3) months
rentals, amounting to ONE MILLION TWO HUNDRED
TWENTY THOUSAND FOUR HUNDRED PESOS & 00/100
(Php 1,220,400.00), Philippine Currency, which deposit shall
be considered and held by the LESSOR as security for the full
and faithful observance and performance by the LESSEE of all
of the terms, conditions and provisions of this
Contract.
In
the event of LESSEE's failure to comply with any of the terms
and conditions of this Contract, the LESSOR may, at its
option, appropriate and apply the said deposit or a part
thereof as may be necessary to compensate the LESSOR for
whatever expense, loss or damage it may sustain on account of
such breach by the LESSEE. The giving of a security
deposit to guarantee the payment of rentals falling due after
date does not extinguish or novate the obligation to satisfy
the same or impair the right of the LESSOR to terminate and/or
to bring an action for unlawful detainer. Should
the entire deposit or any part thereof be appropriated or
applied by the LESSOR, whether for the payment of rental in
arrears or other sums due and payable to the LESSOR by the
LESSEE hereunder, then the LESSEE shall, upon written demand
by the LESSOR, immediately remit to the LESSOR such amount or
amounts as will be sufficient to restore the said deposit to
the sum required to be deposited hereunder, and the LESSEE'S
failure to do so within five (5) calendar days after receipt
of such demand shall constitute a breach of this
Contract.
If the LESSEE has fully
and faithfully complied with all of the terms, conditions and
provisions hereunder, all utility bills, common area and
other charges accruing up to and when the LESSEE vacates the
leased premises, said security deposit or any remaining
portion thereof shall be returned to the LESSEE within sixty
(60) calendar days after LESSEE has actually and permanently
vacated the leased premises or until such time that charges
for utilities and common area expenses as well as other
miscellaneous charges have been determined and applied
against the security deposit. It is further
understood that the deposit shall not earn any interest
whatsoever.
7.
UTILITIES - The LESSEE shall pay for its own
electricity, water, telephone, air conditioning, telex and
other utilities and facilities used by it in the Leased
Premises up to the actual date when LESSEE vacates the Leased
Premises, as and when billed to the
LESSEE. Section 4, second paragraph shall also
apply herein.
Any other amount required
to be paid by the LESSEE to the LESSOR hereunder shall, if
unpaid on its due date, similarly earn interest at the rate
of two (2) percent per month starting from the date of
default. Any amount advanced by the LESSOR for and
in behalf of LESSEE with the LESSEE's consent, or without
such consent if the advance was made by the LESSOR to protect
its own interest, shall become due and demandable within five
(5) calendar days from the date LESSEE is notified in writing
by the LESSOR of such amount advanced by the LESSOR, and
shall also earn interest at the rate of two (2%) percent per
month from such date until the said amount is fully paid and
settled.
8.
FACILITIES AND/OR SERVICES USED IN COMMON -
The cost of maintenance of facilities and/or services used in
common by the LESSEES of the Building such as canteen,
hallways, comfort rooms, parking spaces and the like shall be
borne by all the LESSEES using their respective proportionate
share. Such services may include, but not limited
to, janitorial, maintenance, security, electrical, plumbing
and air-con maintenance. The provision of Section
4, second paragraph, shall also apply herein.
9.
USE OF THE PREMISES - The Leased Premises
shall be used exclusively by the LESSEE for office purposes
only. LESSEE shall not divert the Leased Premises
to any other use without the prior written consent of the
LESSOR. It is expressly agreed that, if at any time
during the existence of this lease and without the previous
written consent of the LESSOR, the Leased Premises are used
for any other purposes, the LESSOR shall have the absolute
right to rescind this Contract in accordance with paragraph 38
hereof.
9. A.
FLOOR LOAD - No portion of the
Leased Premises shall be loaded in excess of 45.5 kilos (100
pounds) per square foot at the ground floor, and 36.4 kilos
(80 pounds) per square foot on the remaining floors, nor
shall any safe or other articles in excess of 221 kilos (500
pounds) be placed in or removed from the Leased Premises
without the prior written consent of LESSOR, which consent
shall not be unreasonably withheld, conditioned or
delayed
9. B.
SHADES, AWNINGS, SIGNS, ADVERTISEMENTS, ETC.
- No shades, awnings, blinds or window
guards shall be installed or used in or about the Leased
Premises without the prior written consent of the LESSOR, nor
shall any sign, advertisement or notice of any kind be
inscribed, painted, affixed or displayed on any of the
windows, doors or any part of the outside of the Leased
Premises without the prior written consent of LESSOR first
obtained, which consent, however, shall not be unreasonably
withheld.
Only the LESSEES of ground
floor office spaces fronting the road, shall be entitled to
inscribe, paint, affix or display any such sign,
advertisement or notice; provided, that such signs,
advertisements or notices are placed and limited within the
area of the ground floor of the Building.
10.
CARE OF EQUIPMENT AND THE LEASED PREMISES
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a) Any breakdown in,
damage to, or non-operation of:
1. Elevators;
2. Emergency
power supply system and electrical control
station;
3. Air
conditioning; and
4. Water
pumps;
occasioned
by the negligence and/or willful acts of the LESSEE, its
employees and agents, visitors or guests shall be chargeable
to the account of the LESSEE.
b) The LESSEE shall, at
its sole expense, maintain the Leased Premises in a clean and
sanitary condition, free from obnoxious odors, disturbing
noises, or other nuisances. Upon the expiration or
earlier termination of this lease, the LESSEE shall surrender
and return the Leased Premises and all its fixtures in good
condition, ordinary wear and tear excepted. Any injury or
damage to the Leased Premises or the Building or any part
thereof, caused by LESSEE, its employees and agents, guests
and visitors, shall be repaired or replaced immediately by
LESSEE at its own expense; provided that, if the LESSEE
should fail to do so, the LESSOR may, at its discretion,
effect the repair and/or replacement and charge the cost
thereof to the LESSEE.
c) The LESSEE shall take
reasonable precautions necessary to protect the interior of
the Leased Premises against damage by storm, typhoon or like
threats. The LESSEE shall also see to it that the
Leased Premises are used in a manner that will not disturb
the peace and tranquility of the other tenants of the
Building.
11.
AIR-CONDITIONING - The
centralized air-conditioning facilities in the Floor where
the Leased Premises are located will be in operation from
8:00 A.M. to 5:00 P.M. from Monday to Fridays (exclusive of
holidays), and from 8:00 A.M. to 12:00 noon on Saturdays
(also excluding holidays). The cost of maintenance
of the centralized air-conditioning facilities shall be borne
by the Lessees of the Building in proportion to their
respective floor areas. In the event the LESSEE
requests and LESSOR grants the use of the air-conditioning
facilities beyond the regular hours aforestated, the LESSEE
shall answer for the additional electricity consumption and
cost of additional usage and maintenance of the facilities as
billed by LESSOR; all such charges and costs shall be paid
within thirty (30) days from receipt of the LESSOR's
billing.
12.A.
OTHER ELECTRICAL APPLIANCES - No additional
air-conditioning units other than the centralized
air-conditioning system shall be allowed to be used or
installed in the Leased Premises without the written consent
of the LESSOR, which consent shall not be unreasonably
withheld, conditioned or delayed.. Except for the
usual electrical office equipment or appliances such as
electric typewriters, computers, calculators, photocopying
machines, mimeographing machines, telex or fax machines,
small refrigerator and small coffee maker, no other
electrical equipment or applia
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