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EXHIBIT 10.17
SUBLEASE AGREEMENT
This Sublease Agreement ("Agreement") dated as of September 30, 1997
between XXXX X. XXXXXXX COMPANY, a Georgia Corporation ("Tenant"), and
STERI-OSS, INC. a California corporation ("Subtenant").
WHEREAS, Tenant (through its predecessor Interchecks, Incorporated) has
previously entered into that certain lease dated as of January 31, 1989, which
lease has previously been amended by amendments dated as of June 15, 1989,
September 14, 1992, February 25, 1993 and May 19, 1993, with Metropolitan Life
Insurance Company ("Landlord"), a New York corporation (collectively, the
"Lease"), covering the premises known as 00000 Xxxx Xxxxx Xxxxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx (the "Premises").
WHEREAS, conditioned upon the consent of the Landlord to this Agreement,
Tenant hereby agrees to sublease the Premises to Subtenant, consisting of
approximately 51,213 rentable square feet (the "Subleased Premises").
NOW, THEREFORE, in consideration of the covenants and agreements set forth
herein, and subject to the terms and conditions of the Lease, Tenant hereby
transfers all right, title and interest in and to the Subleased Premises to
Subtenant and Subtenant hereby accepts same from Tenant upon the terms set forth
below:
1. Term. This Agreement shall be for a term commencing December 1, 1997
and terminating on October 31, 1999. In no event shall the term hereof survive
the termination or expiration of the Lease.
2. Base Rent. Subtenant shall pay to Tenant, in advance on the first
day of each calendar month, commencing April 1, 1998, without notice or demand
and without deduction or setoff of any amount for any reason whatsoever, the
sum of $23,046, amounting to $0.45 per rentable square foot of the Subleased
Premises.
3. Operating Expenses and Taxes. In addition to the Base Rent, Subtenant
shall pay the sums that Tenant is required to pay to Landlord pursuant to the
Lease for Subtenant's pro-rata share of the Operating Expenses (as set forth in
the Lease) and real estate taxes for the Subleased Premises and the common area
of the project of which the Premises are a part.
4. Security Deposit. Subtenant shall pay to Tenant upon execution and
delivery of this Agreement the sum of $23,046 to be held by Tenant without
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interest as a security deposit which shall be returned to Subtenant upon
satisfactory performance of all Subtenant's obligations under this Agreement.
5. Repairs and Maintenance. The Premises are being subleased in their
"as is" condition. However, Tenant shall be responsible for maintenance of the
structural components, exterior and demising walls and building foundation,
roof structure, membrane components and major building systems, except for
damage resulting from the abuse, negligence or willful misconduct of Subtenant.
6. Use. The Premises shall be used for general and administrative
office, light manufacturing, sale and distribution of dental related products,
and any other related legal uses.
7. Notices. All notices required or permitted under this Agreement
shall be given by overnight express mail service, or by registered or certified
U.S. mail, return receipt requested, or by facsimile transmission with receipt
confirmed at the following address or to such other address as either party
shall in writing advise the other.
If to Tenant: Xxxx X. Xxxxxxx Company
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Senior Vice President
If to Subtenant: Steri-Oss, Inc.
Attention: Xxx Xxxxxxx
Executive Vice President
8. Subordination. This Agreement and Subtenant's rights hereunder are
subject and subordinate to the Lease and the lien of any mortgage, deed of
trust or similar instrument now or hereafter encumbering the Premises.
Subtenant shall, within 15 days following request therefor, deliver to Tenant
or such third party designated by Tenant a statement, in recordable form,
evidencing such subordination.
9. Assumption. In addition to the terms and conditions of this
Agreement, Subtenant agrees that this Agreement is subject to all of the terms
and conditions of the Lease and of the rights of Landlord, Tenant and any
person claiming by or through either of them thereunder. Subtenant covenants
and agrees to perform all of the obligations of Tenant with respect to the
Subleased
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Premises set forth in the Lease as if Subtenant were the tenant thereunder and
Tenant was the landlord thereunder, and in turn Tenant shall have all of the
rights and privileges in the Lease as if Tenant were the landlord thereunder.
Subtenant hereby acknowledges that it has received and read a copy of the Lease
and agrees, subject to the terms of this Agreement, to be bound by the terms
thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXX X. XXXXXXX COMPANY
By: /s/ XXXX XXXXXXX
----------------------------
Xxxx X. Xxxxxxx
Senior Vice President
STERI-OSS, INC.
By: /s/ XXX XXXXXXX
----------------------------
Xxx Xxxxxxx
Executive Vice President
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STANDARD FORM LEASE
(Multi-Tenant; Net)
METROPOLITAN LIFE INSURANCE COMPANY, Landlord
INTERCHECKS, INCORPORATED, Tenant
Lease Summary:
(a) Lease Date: January 31, 1989
(b) Landlord: METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation
(c) Address of Landlord:
x/x X'Xxxxxxx Xxxxxxxxx Xxxxxxx & Partners
0000 Xxxxxx Xxxxx, Xxxxx 000 and: 000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000 Xxxxxx Xxxx, Xxxxxxxxxx 00000
(d) Tenant: INTERCHECKS, INCORPORATED, a Washington corporation
(e) Address of Tenant:
000 Xxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
(f) Contact: Xx. Xxxxxx Xxxxxxxxx, President Telephone: (000) 000-0000
(g) Premises Square Footage: Approximately 25,000 Square Feet
(h) Building Address:
00000 Xxxx Xxxxx Xxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx
(i) Building Square Footage: Approximately 51,680 Square Feet
(j) Anticipated Commencement Date: June 1, 1989
(k) Term: Ten (10) years and No (0) months
(l) Initial Monthly Rent: $14,250/month $171,000/year SEE ADDENDUM, #43
(m) Security Deposit: $14,250
(n) Permitted Uses: General office use, warehousing of paper products and
printing
(o) Brokers: Xxxxxxx Xxxxxx Corp. &
Coldwell Banker Commercial Real Estate Services
(p) Insuring Party: Landlord
(q) Tenant's Percentage: 48.40 SEE ADDENDUM, XXXXXXXXX XX. 00
Xxxxxxx(x) X-0, X-0 and Preliminary Space Plan
Rider(s) ADDENDUM
LEASE
1. Parties. THIS LEASE ("Lease"), is dated for reference purposes only as of
the date set forth in Paragraph (a) of the Lease Summary and is entered into by
and between the Landlord identified in Paragraph (b) of the Lease Summary
("Landlord"), whose address is set forth in Paragraph (c) of the Lease Summary
and the Tenant identified in Paragraph (d) of the Lease Summary ("Tenant"),
whose address is set forth in Paragraph (e) of the Lease Summary.
2. Premises. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord those certain premises consisting of a portion of that certain building
located at the address set forth in Paragraph (h) of the Lease Summary and as
shown on Exhibit "A-1" attached hereto, together with the property appurtenant
thereto, if any, for the exclusive use of Tenant as shown on said Exhibit "A-1".
Tenant shall have the right to use, on a non-exclusive basis, parking areas and
ancillary facilities located within the Common Area of the Project, subject to
the terms of this Lease.
3. Definitions. The following terms shall have the following meanings in this
Lease:
(a) "Alterations" shall mean any alterations, decorations, additions or
improvements made in, on or about the Premises after the Commencement Date,
including, but not limited to, lighting, HVAC and electrical fixtures, pipes
and conduits, partitioning, drapery, wall coverings, cabinetry, carpeting
and/or other floor covering, ceiling tile, fixtures and carpentry installations.
(b) "Building" shall mean that certain building identified in Paragraph
(h) of the Lease Summary.
(c) "City" shall mean the city in which the Premises are located.
(d) "Commencement Date" shall mean the first day of the Term of this
Lease as described in Paragraph 4(a).
(e) "Common Area" shall mean all areas and facilities within the Project
exclusive of the Premises and other portions of the Project leased exclusively
to other tenants. The Common Area includes, but is not limited to, striped
parking areas, access and perimeter roads, sidewalks, landscaped areas and
similar areas and facilities. Tenant's use of the Common Area and its rights
and obligations with respect thereto are more particularly described in
Paragraph 39 below.
(f) "County" shall mean the county in which the Premises are located.
(g) "HVAC" shall mean the heating, ventilating and air conditioning
system serving the building.
(h) "Interest Rate" shall mean the greater of ten percent (10%) per annum
or five percent (5%) in excess of the discount rates of the Federal Reserve
Bank of San Francisco in effect on the twenty-fifth (25th) day of the calendar
month immediately prior to the event giving rise to the Interest Rate
imposition.
(i) "Landlord's Agents" shall mean landlord's authorized agents,
contractors, partners, subsidiaries, directors, officers and employees.
(j) "Lease Summary" shall mean the summary of Lease information set forth
above.
(k) "Monthly Rent" shall mean the rent payable pursuant to paragraph
5(a), as adjusted from time to time pursuant to the terms of this Lease.
(l) "Operating Expenses" shall mean all costs and expenses for the
maintenance and operation of the Building and of Common Area of the Project as
more particularly described in Paragraph 16(b) below. SEE ADDENDUM #48.
(m) "Premises" shall mean the property leased hereby including all areas
appurtenant thereto for the exclusive use of Tenant as shown on Exhibit "A-1"
hereto.
(n) "Project" shall mean that certain real property, and all improvements
thereon, including the Building, other buildings, if any, and related
improvements as shown on Exhibit "A-2" hereto.
(o) "Real Property Taxes" shall mean any form of tax, assessment, license,
fee, rent tax, levy, penalty (if a result of Tenant's delinquency), real
property or other tax (other than landlord's net income, estate, succession,
inheritance, or franchise taxes), now or hereafter imposed by any authority
having the direct or indirect power to tax, or by any city, county, state or
federal government or any improvement district or other district or division
thereof, whether such tax or any portion thereof: (i) is determined by the area
of the Premises or any part thereof or the rent and other sums payable hereunder
by Tenant including, but not limited to, any gross income or excise tax levied
by any of the foregoing authorities with respect to receipt of such rent or
other sums due under this Lease; (ii) is levied or assessed in lieu of, in
substitution for, or in addition to, existing or additional taxes with respect
to the Premises whether or not now customary or within the contemplation of the
parties; or (iii) is based upon any legal or equitable interest of Landlord in
the Premises or any part thereof.
(p) "Rent" shall mean Monthly Rent plus the Additional Rent defined in
Paragraph 5(c).
(q) "Security Deposit" shall mean that amount paid by Tenant pursuant to
Paragraph 7.
(r) "Tenant Improvements" shall mean those certain improvements to the
Premises, if any, to be constructed pursuant hereto.
(s) "Tenant's Percentage" shall mean the percentage set forth in
Paragraph (q) of the Lease Summary.
(t) "Tenant's Personal Property" shall mean Tenant's removable trade
fixtures, furniture, equipment and other personal property in the Premises.
(u) "Term" shall mean that period of years and/or months as set forth in
Paragraph (k) of the Lease Summary, as said Term may be extended pursuant to
the proper exercise of any option or options to extend the Term as may be
granted herein or as may be sooner terminated pursuant to any provision hereof.
4. Lease Term.
(a) Term. The Term of this Lease shall be for that period of years and
months set forth in Paragraph (k) of the Lease Summary, commencing on the
Anticipated Commencement Date as defined in Paragraph 41 of the Addendum
attached hereto and made a part hereof, unless extended in accordance with any
option or options to extend the Term granted herein, or unless sooner
terminated pursuant to any provision hereof.
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(b) Early Entry. If Tenant is permitted in writing by Landlord (which
permission shall not be unreasonably withheld), to occupy
the Premises prior to the Commencement Date for the purpose of ____________ the
Building or for any other purposes permitted in such writing, such early entry
shall be at Tenant's sole risk and subject to all the terms and provisions
hereof, except for the payment of Monthly Rent which shall commence on the
Commencement Date. Landlord shall have the right to impose such additional
conditions on Tenant's early entry as Landlord shall deem appropriate, and shall
further have the right to require that Tenant execute an early entry agreement
containing such conditions prior to Tenant's early entry.
(c) Delay in Possession. Notwithstanding said Commencement Date, if for
any reason Landlord cannot deliver possession of the Premises to Tenant on said
date, Landlord shall not be subject to any liability therefor, nor shall such
failure affect the validity of this Lease or the obligations of Tenant hereunder
or extend the term hereof, but in such case, Tenant shall not be obligated to
pay Monthly Rent until possession of the Premises is tendered to Tenant,
provided, however, if Landlord shall not have delivered possession of the
Premises within one hundred twenty (120) days from said Commencement Date for
reasons other than delays caused in whole or in part by Tenant, Tenant may, at
Tenant's option, by notice in writing to Landlord within ten (10) days
thereafter, cancel this Lease, in which event the parties shall be discharged
from all obligations hereunder, provided further, however, that if such written
notice of Tenant is not received by Landlord within said ten (10) day period,
Tenant's right to cancel this Lease hereunder shall terminate and be of no
further force or effect.
5. Rent.
(a) Monthly Rent. Tenant shall pay to Landlord, in lawful money of the
United States, for each calendar month of the Term, the Monthly Rent set forth
in Paragraph (i) of the Lease Summary, subject to adjustment as provided in
Paragraph 5(b) below, in advance, on the first day of each calendar month,
without abatement, deduction, claim, offset, prior notice or demand. Landlord
hereby acknowledges receipt of Tenant's payment of Monthly Rent for the
first month of the term.
(b) Adjustments. SEE ADDENDUM, #43
(c) Additional Rent. All monies required to be paid by Tenant under this
Lease, including, without limitation, Real Property Taxes payable pursuant to
Paragraph 14 hereof, repair and maintenance charges payable pursuant to
Paragraph 16 hereof and insurance premiums payable pursuant to Paragraph 20
hereof shall constitute Additional Rent. Landlord shall have the right to
estimate and collect from Tenant in advance on a quarterly or monthly basis any
and all such Additional Rent pursuant to the provisions set forth for such
procedure in Paragraph 16(a) and (b) of this Lease.
(d) Prorations. If the Commencement Date is not the first (1st) day of a
month, or if the expiration of the Term of this Lease is not the last day of a
month, a prorated installment of Monthly Rent based on a thirty (30) day month
shall be paid for the fractional month during which the Term commences or
terminates.
6. Late Payment Charges. Tenant acknowledges that late payment by Tenant to
Landlord of Rent and other charges provided for under this Lease will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of such
costs bring extremely difficult or impracticable to fix. Such costs include, but
are not limited to, processing and accounting charges, and late charges that may
be imposed on Landlord by the terms of any encumbrance and notes secured by any
encumbrance covering the Premises, or late charges and penalties due to late
payment of Real Property Taxes due on the Premises. Therefore, if any
installment of Rent or any other charge due from Tenant is not received by
Landlord when due, Tenant shall pay to Landlord an additional sum equal to the
greater of Fifty Dollars (50.00) or five percent (5%) of the amount overdue as a
late charge for every month or portion thereof that the Rent or other charges
remain unpaid. The parties agree that this late charge represents a fair and
reasonable estimate of the costs that Landlord will incur by reason of the late
payment by Tenant. Acceptance of any late charge shall not constitute a waiver
by Landlord of Tenant's default with respect to the overdue amount, and shall
not prevent Landlord from exercising any of the other rights and remedies
available to Landlord for any other breach of Tenant under this Lease.
Notwithstanding the foregoing, upon the second occurrence during any
twelve-month period of Tenant's failure to pay Monthly Rent or Additional Rent
when due, Landlord may condition its acceptance of future Rent upon a
requirement that Tenant concurrently execute an amendment to this Lease which
provides that Monthly Rent for the balance of the term of this Lease shall be
made in quarterly installments, in advance, in an amount equal to the sum of the
Monthly Rent amounts payable during such three (3) month period.
7. Security Deposit. Tenant has deposited with Landlord the sum set forth in
Paragraph (m) of the Lease Summary as a Security Deposit for the full and
faithful performance of every provision of this Lease to be performed by Tenant.
If Tenant defaults with respect to any provision of this Lease, Landlord may
apply all or any part of the Security Deposit for the payment of any Rent or
other sum in default, the repair of such damage to the Premises or the payment
of any other amount which Landlord may spend or become obligated to spend by
reason of Tenant's default or to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of Tenant's default to the full
extent permitted by law. If any portion of the Security Deposit is so applied,
Tenant shall, within ten (10) days after written demand therefor, deposit cash
with Landlord in an amount sufficient to restore the Security Deposit to its
original amount, and Tenant's failure to do so shall be a default under this
Lease. Upon any increase in the Monthly Rent during the Term, Tenant shall
deposit with Landlord additional funds such that the amount of the Security
Deposit held by Landlord shall at all times bear the same proportion to the then
current Monthly Rent as the original Security Deposit bears to the initial
Monthly Rent. Landlord shall not be required to keep the Security Deposit
separate from its general funds, and Tenant shall not be entitled to interest on
the Security Deposit. If Tenant is not otherwise in default, the Security
Deposit or any balance thereof shall be returned to Tenant within thirty (30)
days of the Termination Date.
8. Holding Over. If Tenant remains in possession of all or any part of the
Premises after the expiration of the Term hereof with the prior written consent
of Landlord, such possession shall constitute a month-to-month tenancy only and
shall not constitute a renewal or extension for any further term. In such event,
Monthly Rent shall be increased to an amount equal to one hundred twenty-five
percent for the first three months of such holdover and thereafter to one
hundred fifty percent (150%) of the Monthly Rent payable during the last month
of the Term, and any other sums due hereunder shall be payable in the amount
and at the times specified in this Lease. Such month-to-month tenancy shall be
subject to every other term, condition, and covenant contained herein.
9. Condition of Premises. By taking possession of the Premises, Tenant shall
be deemed to have accepted the Premises in a good, clean and completed
condition and state of repair, in compliance with all applicable laws, codes and
ordinances. Tenant acknowledges that neither Landlord nor Landlord's Agents has
made any representations or warranties as to the suitability or fitness of the
Premises for the conduct of Tenant's business or for any other purpose, and
that neither Landlord nor Landlord's Agents has agreed to undertake any
alterations or construct any Tenant improvements to the Premises except as
expressly provided in this Lease.
10. Use of the Premises.
(a) Tenant's Use. Tenant shall use the Premises solely for the purposes
set forth in Paragraph (n) of the Lease Summary and shall not use the Premises
for any other purpose without obtaining the prior written consent of Landlord.
(b) Compliance.
(i) Tenant shall not use the Premises or suffer or permit anything
to be done in or about the Premises which will in any way conflict with any
law, statute, zoning restriction, ordinance or governmental law, rule,
regulation or requirement of any duly constituted public authority having
jurisdiction over the Premises now in force or which may hereafter be in
force, or the requirements of the Board of Fire Underwriters or other similar
body now or hereafter constituted relating to or affecting the condition, use
or occupancy of the Premises or any covenants, conditions, easements or
restrictions now or hereafter encumbering the Premises. Tenant shall not commit
any public or private nuisance or any other act or thing which might or would
disturb the quiet enjoyment of any other tenant of Landlord or any occupant of
nearby property. Tenant shall place no loads upon the floors, walls or ceilings
in excess of the maximum designed load specified by Landlords or which
may damage the Building or outside areas; nor place any harmful liquids in the
drainage systems; nor dump or store waste materials, refuse or other materials
or allow such to remain outside the Building proper, except in the enclosed
trash areas provided.
(ii) In particular, Tenant, at its sole cost, shall comply with all
laws relating to the storage, use and disposal of hazardous, toxic or
radioactive matter, including those materials identified in Sections 66680
through 66685 of Title 22 of the California Administrative Code, Division 4,
Chapter 30 ("Title 22") as amended from time to time (collectively "Toxic
Materials"). If Tenant does store, use or dispose of any Toxic Materials, Tenant
shall notify Landlord in writing at least ten (10) days prior to their first
appearance on the Premises and Tenant's failure to do so shall constitute a
default under this Lease. Tenant shall be solely responsible for and shall
defend, indemnify and hold Landlord and Landlord's Agents harmless from and
against all claims, costs and liabilities, including attorneys' fees and costs,
arising out of or in connection with its storage, use and disposal of Toxic
Materials. Tenant shall further be solely responsible for and shall defend,
indemnify and hold Landlord, Landlord's Agents and the Premises harmless from
and against all claims, costs, and liabilities, including attorneys' fees and
costs, arising out of or in connection with the removal, clean-up and
restoration work and materials necessary to return the Premises and any other
property of whatever nature to their condition existing prior to the appearance
of the Toxic Materials on the Premises. Tenant's obligations hereunder shall
survive the termination of this Lease. See Addendum 44.
11. Quiet Enjoyment. Subject to the right of any lender of record, Landlord
covenants that Tenant, upon performing the terms, conditions and covenants of
this Lease, shall have quiet and peaceful possession of the Premises as against
any person claiming the same by, through or under Landlord.
12. Alterations.
(a) Permitted Alterations. After the Commencement Date, Tenant shall not
make or permit any Alterations in, on or about the Premises, except for
non-structural Alterations not exceeding Five Thousand Dollars ($5,000.00) in
aggregate cost over the Term of the Lease, without the prior written consent of
Landlord, which consent may be withheld in Landlord's discretion. All
Alterations shall be constructed pursuant to plans and specifications approved
in writing by Landlord. Notwithstanding the foregoing, Tenant shall not, without
the prior written consent of Landlord, make any: (i) Alterations to the interior
of the Building or the Common Area; (ii) Alterations to or penetrations of the
structural portions of the Building including, without limitation, the roof, or
which will interfere with the proper functioning of any HVAC, electrical or
mechanical facilities or equipment located in the Building; or (iii) Alterations
visible from outside the Building to which Landlord may withhold its consent
based on wholly aesthetic grounds.
All Alterations shall be instituted by a licensed contractor at Tenant's
expense in compliance with all applicable laws and covenants, conditions and
restrictions of record. The work shall be done in a good and workmanlike manner
conforming in quality and design with the Premises existing as of the
Commencement Date, and shall not diminish the value of the Premises. Tenant
shall, if required by Landlord, obtain and pay for, at its own expense, a
completion and indemnity bond, the form and amount of which shall be subject to
the approval of Landlord. All Alterations made by Tenant shall be and become the
property of Landlord upon the installation thereof and shall not be deemed
Tenant's Personal Property; provided, however, that Landlord may, at its option,
require that Tenant, upon the termination of this Lease, at Tenant's expense,
remove any or all non-structural Alterations installed by Tenant and return the
Premises to its condition as of the Commencement Date of this Lease, normal wear
and tear excepted. Notwithstanding any other provisions of this Lease, Tenant
shall be solely responsible for the maintenance, repair and replacement of any
and all Alterations made by it to the Premises.
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(ii) Landlord shall, subject to receiving Tenant's contributions as
called for in Paragraph 16(a) above, maintain in good and sanitary condition and
repair the roof of the Building in which the Premises are located and the normal
maintenance services for the HVAC for the Premises, if any, and paint the
exterior of the Building within which the Premises are located as and when such
painting becomes reasonably necessary in Landlord's sole discretion. Landlord
shall not be required to make any repairs to the roof unless and until Tenant
has notified Landlord in writing of the need for such repair and Landlord shall
have a reasonable period of time thereafter to commence and complete such
repair. SEE ADDENDUM #52.
(iii) Tenant hereby waives all right to make repairs at the expense of
Landlord and further hereby waives all rights provided for by the Civil Code of
State of California, as amended from time to time, to make such repairs.
(iv) Tenant agrees that it will not, nor will it authorize any person
to go onto the roof of the Building of which the Premises are a part without
the prior written consent of Landlord.
(d) Action by Landlord if Tenant Fails to Maintain. If Tenant refuses or
neglects to repair and maintain the Premises property as required hereunder and
to the reasonable satisfaction of Landlord, Landlord at any time following ten
(10) days from the date on which Landlord shall make a written demand on Tenant
to effect such repair and maintenance, may enter upon the Premises and make such
repairs and or maintenance without liability to Tenant for any loss or damage
that may accrue to Tenant's merchandise, fixtures or other property or to
Tenant's business by reason thereof, and upon completion thereof. Tenant shall
pay to Landlord Landlord's costs for making such repairs plus twenty percent
(20%) for overhead, upon presentation of a xxxx therefor, as Additional Rent.
Said xxxx shall include interest at the Interest Rate on said costs from the
date of completion of the maintenance and repairs by Landlord.
(e) Compliance with Government Regulations. Tenant shall, at its own cost
and expense, promptly and properly observe and comply with, including the making
by Tenant of any Alteration to the Premises, all present and future orders,
regulations, directions, rules, laws, ordinances and requirements of all
governmental authorities (including, without limitation, state, municipal,
county and federal governments and their departments, bureaus, boards and
officials) arising from the use or occupancy of, or applicable to, the Premises
or privileges appurtenant to or in connection with the enjoyment of the
Premises.
(f) Failure to Pay. Tenant's failure timely to pay any of the charges in
connection with the performance of its maintenance and repair obligations to be
paid under this Paragraph shall constitute a material default under this Lese.
17. Fixtures. Tenant shall, at its own expense, provide, install and maintain
in good condition all its Personal Property required in the conduct of its
business in the Premises.
18. Landlord's Right to Enter the Premises. Tenant shall permit Landlord and
Landlord's Agents to enter the Premises at all reasonable times upon reasonable
notice, except for emergencies in which case no notice shall be required to
inspect the same, to post Notices or Nonresponsibility and similar notices and
signs indicating the availability of the Premises for sale, to show the Premises
to interested parties such as prospective lenders and purchasers, to make
necessary Alterations or repairs, to discharge Tenant's obligations hereunder
when Tenant has failed to do so within a reasonable time after written notice
from Landlord, and at any reasonable time after one hundred eighty (180) days
prior to the expiration of the Term, to place upon the Premises such reasonable
signs indicating availability of the Premises for lease and to show the Premises
to prospective tenants. The above rights are subject to reasonable security
regulations of Tenant, and to the requirement that Landlord shall at all times
act in a manner to cause the least possible interference with Tenant's business.
19. Signs. Landlord shall designate the location on the Premises, if any, for
one or more exterior Tenant identification sign(s). Tenant shall have no right
to maintain Tenant identification signs in any other location in, on or about
the Premises and shall not display or erect any other signs, displays or other
advertising materials that are visible from the exterior of the Building. The
size, design, color and other physical aspects of permitted sign(s) shall be
subject to the Landlord's written approval prior to installation, which approval
may be withheld in Landlord's discretion, any covenants, conditions or
restrictions encumbering the Premises and any applicable municipal or other
governmental permits and approvals. The cost of the sign(s), including the
installation, maintenance and removal thereof shall be at Tenant's sole cost
and expense. If Tenant fails to maintain its sign(s), or if Tenant fails to
remove same upon termination of this Lease and repair any damage caused by such
removal (including, without limitation, repainting the Building, if required by
Landlord), Landlord may do so at Tenant's expense. Tenant shall reimburse
Landlord for all costs incurred by Landlord to effect such removal, which
amounts shall be deemed Additional Rent, and shall include, without limitation,
all sums disbursed, incurred or deposited by Landlord including Landlord's
costs, expenses and actual attorney's fees with interest thereon at the
interest rate.
20. Indemnity; Insurance.
(a) Indemnification. Tenant hereby agrees to defend (with attorneys
acceptable to Landlord), indemnify and hold harmless Landlord and Landlord's
Agents from and against any and all damage to the Premises, Building or Project
and any and all damage, loss, liability and expense including, without
limitation, actual attorneys' fees and legal costs incurred directly or by
reason of any claim, suit or judgment brought by or on demand of any person or
persons for damage, loss or expense due to, but not limited to, bodily injury or
property damage sustained by such person or persons which arise out of, are
occasioned by, or are in any way attributable to the use or occupancy of the
Premises, the acts or omissions of the Tenant, its agents, employees or
contractors, except to the extent caused by the gross negligence or willful
misconduct of Landlord. Tenant agrees that the obligations of Tenant herein
shall survive the expiration or earlier termination of this Lease.
(b) Insuring Party. As used in this Paragraph the term "insuring party"
shall mean the party designated in the Lease Summary who has the obligation to
obtain the property insurance required hereunder. If Landlord is the insuring
party, Landlord shall not be required to name Tenant as an additional insured
under any such policy. Whether the insuring party is Landlord or Tenant, Tenant
shall, as Additional Rent for the Premises, pay the cost of all insurance
required hereunder. If Landlord is the insuring party, Tenant shall, within ten
(10) days following demand by Landlord, reimburse Landlord for the cost of the
insurance so obtained.
(c) Tenant's Insurance. Tenant agrees to maintain in full force and effect
at all times during the Term, at its own expense, for the protection of Tenant
and Landlord, as their interests may appear, policies of insurance issued by a
carrier or carriers acceptable to Landlord and as lender(s) of record which
afford the following coverages; (i) worker's compensation, statutory limits;
(ii) employer's liability, as required by law, (iii) comprehensive general
liability insurance including blanket contractual liability, broad form property
damage, personal injury, completed operations, products liability, and fire
damage of not less than Two Million Dollars ($2,000,000.00) with a combined
single limit for both bodily injury and property damage and naming Landlord,
Landlord's Agents and mortgagees as additional insureds, (iv) boiler and
machinery insurance including, but not limited to, steam pipes, pressure pipes,
condensation return pipes and other pressure vessels and HVAC equipment, with
limits per accident of not less than the replacement cost of all leasehold
improvements and of all boilers, pressure valves, HVAC equipment and
miscellaneous electrical and mechanical equipment on the Premises, (v)
plateglass insurance, if applicable, and (vi) such other insurance, in such form
and amounts as may be reasonably required by Landlord or its lender(s) from time
to time.
(d) Property Insurance. The insuring party shall obtain and keep in force
during the Term of this Lease a policy or policies of insurance covering loss
or damage to the Premises, in the amount of the full replacement cost thereof,
as the same may exist from time to time, but in the event less than the local
amount required by lender(s) having liens on the Premises, against all ________
included within the classification of fire, extended coverage, vandalism,
malicious mischief, flood (if required by any lender(s) having lien(s) on the
Premises), and special extended ________ ("all risk" as such term is used in the
insurance industry). Said insurance shall provide for payment of loss thereunder
to Landlord or to the holders of mortgages or deeds of trust on the Premises.
The insuring party shall, in addition, obtain and keep in force during the
Term of this Lease a policy of rental value insurance covering a period of one
(1) year, with loss payable to Landlord, which insurance shall also cover all
real estate taxes and insurance costs for said period. A stipulated value or
agreed amount endorsement deleting the coinsurance provision of the policy
shall be procured with said insurance as well as an automatic increase in
insurance endorsement causing the increase in annual property insurance
coverage by 2% per quarter. If such insurance coverage has a deductible clause,
the deductible amount shall not exceed Ten Thousand Dollars ($10,000) per
occurrence, and Tenant shall be liable for such deductible amount. If the
Premises are part of a larger building, or if the Premises are part of a group
of buildings owned by Landlord which are adjacent to the Premises, then Tenant
shall pay for any increase in the property insurance of such other building or
buildings if said increase is caused by Tenant's acts, emissions, use or
occupancy of the Premises. If the Landlord is the insuring party, Landlord will
not insure Tenant's fixtures, equipment or Tenant improvements the insurance
for which shall be obtained by Tenant at its sole cost and expense.
(e) Deductibles. Any policy of insurance required of Tenant pursuant to
this Lease containing a deductible must be approved in writing by Landlord
prior to the issuance of such policies if being understood and agreed that
Tenant shall be solely responsible for the payment of any such deductible.
(f) Certificates. Tenant shall deliver to Landlord at least thirty (30)
days prior to the time such insurance is first required to be carried by
Tenant, and thereafter at least thirty (30) days prior to expiration of each
such policy, certificates of insurance evidencing the above coverage with limits
not less than those specified above. The certificates shall expressly provide
that the interest of Landlord therein shall not be affected by any breach of
Tenant of any policy provision for which such certificates evidence coverage.
(g) Increased Coverage. Upon demand, Tenant shall provide Landlord, at
Tenant's expense, with such increased amount of existing insurance, and such
other insurance as Landlord or Landlord's lender(s) may reasonably require.
(h) Co-Insurer. If, on account of the failure of Tenant to comply with
the foregoing provisions, Landlord is adjudged a co-insurer by its insurance
carrier, than any loss or damage Landlord shall sustain by reason thereof,
including attorneys' fees and costs, shall be borne by Tenant and shall be
immediately paid by Tenant upon receipt of a xxxx therefor and evidence of
such loss.
(i) Sufficiency of Coverage, Neither Landlord nor Landlord's Agents makes
any representation that the limits of liability specified to be carried by
Tenant under this Lease are adequate to protect Tenant. If Tenant believes that
any such insurance coverage is insufficient, Tenant shall provide, at its own
expense, such additional insurance as Tenant deems adequate.
(j) Insurance Requirements. All such insurance: (i) shall be in a form
satisfactory to Landlord and its lender(s) and shall be carried with companies
that have a general policyholder's rating of not less than "A" and a financial
rating of not less than Class "X" in the most current edition of Best's
Insurance Reports; (ii) shall provide that such policies shall not be subject
to material alterations or cancellation except after at least thirty (30) days'
prior written notice to Landlord: and (iii) shall be primary as to Landlord.
The policy or policies, or duly executed certificates for them, together with
satisfactory evidence of payment of the premium therefor shall be deposited
with Landlord prior to the Commencement Date, and upon renewal of such policies
not less than thirty (30) days prior to the expiration of the term of such
coverage. If Tenant fails to procure and maintain the insurance required to be
procured by Tenant hereunder, Landlord may, but shall not be required to, order
such insurance at Tenant's expense and Tenant shall reimburse Landlord for all
costs incurred by Landlord with respect thereto. Tenant's reimbursement to
Landlord for such amounts shall be deemed Additional Rent, and shall include
all sums disbursed, incurred or deposited by Landlord including Landlord's
costs, expenses and actual attorney's fees, with interest thereon at the
interest rate.
(k) Landlord's Disclaimer. Landlord and Landlord's Agents shall not be
liable for any loss or damage to persons or property resulting from fire,
explosion, falling plaster, glass, tile or sheetrock, steam, gas, electricity,
water or rain which may leak from any part of the Premises, or from the pipes,
appliances or plumbing works therein or from the roof, street or subsurface or
whatsoever, unless caused by or due to the gross negligence or willful acts of
Landlord. Landlord and Landlord's Agents shall not be liable for interference
with light or air, or for any latent defect in the Premises. Tenant shall give
prompt written notice to Landlord in case of a casualty, accident or repair
needed to the Premises or Common Area.
(l) Failure to Pay, The failure to obtain and pay for any insurance
required to be obtained and paid for by it hereunder shall constitute a material
default under the Lease.
7
21. Waiver of Subrogation. Landlord and Tenant each hereby waive all rights of
recovery against the other on account of loss and damage occasioned to such
waivering party for its property or the property of others under its control to
the extent that such loss or damage is insured against under any insurance
policies in force at the time of such loss or damage. Tenant and Landlord shall,
upon obtaining policies of insurance required hereunder, give notice to the
insurance carrier that the foregoing mutual waiver of subrogation is contained
in this Lease and Tenant and Landlord shall cause each insurance policy obtained
by such party to provide that the insurance company waives all right of recovery
by way of subrogation against either Landlord or Tenant in connection with any
damage covered by such policy.
22. Damage or Destruction.
(a) Landlord's Obligation to Rebuild. If the Premises are damaged or
destroyed, Landlord shall promptly and diligently repair the Premises unless it
has the right to terminate this Lease as provided in subparagraph (b) next
below and it elects to so terminate.
(b) Landlord's Right to Terminate. Landlord shall have the right to
terminate this Lease following damage to or destruction of the Premises if any
of the following occurs: (i) insurance proceeds together with additional
amounts Tenant agrees to contribute are not available to Landlord to pay one
hundred percent (100%) of the cost to fully repair the damaged Premises,
excluding the deductible for which Tenant shall also be responsible, (ii) the
Premises cannot, with reasonable diligence, be fully repaired by Landlord
within one hundred eighty (180) days after the date of the damage or
destruction, (iii) the Premises cannot be safely repaired because of the
presence of hazardous factors, including, but not limited to, earthquake faults,
radiation, chemical waste and other similar dangers, (iv) the Premises are
destroyed or damaged during the last twelve (12) months of the Term; or (v)
Tenant is in default under the terms of this Lease at the time of such damage
or destruction. SEE ADDENDUM #53.
If Landlord elects to terminate this Lease, Landlord may give Tenant
written notice of its election to terminate within thirty (30) days after it has
knowledge of such damage or destruction, and this Lease shall terminate fifteen
(15) days after the date Tenant receives such notice. If this Lease is
terminated, Landlord shall, subject to the rights of its lender(s) be entitled
to receive and retain all the insurance proceeds resulting from such damage,
except for those proceeds payable under policies obtained by Tenant which
specifically insure Tenant's Personal Property. If Landlord elects not to
terminate the Lease, Landlord shall, promptly following the date of such damage
or destruction and receipt of amounts required of Tenant pursuant to
subparagraph (b)(i) above, commence the process of obtaining necessary permits
and approvals, and shall commence repair of the Premises as soon as practicable
and thereafter prosecute the same diligently to completion in which event this
Lease will continue in full force and affect.
(c) Limited Obligation to Repair. Landlord's obligation, should it elect
or be obligated to repair or rebuild, shall be limited to the Premises and
Tenant Improvements, and Tenant shall, at its expense, replace or fully repair
all Tenant's Personal Property and any Alterations installed by Tenant existing
at the time of such damage or destruction. If the Premises are to be repaired
in accordance with the foregoing, Landlord shall make available to Tenant any
portion of the insurance proceeds it receives which are allocable to the
Alterations constructed by Tenant pursuant to this Lease provided Tenant is not
then in default.
(d) Abatement of Rent. Rent shall be temporarily abated proportionately,
but only to the extent of any proceeds received by Landlord from rental
abatement insurance described in Paragraph 20(d), during any period when, by
reason of such damage or destruction, Landlord reasonably determines that there
is substantial interference with Tenant's use of the Building. Such abatement
shall commence upon such damage or destruction and end upon substantial
completion by Landlord of the repair or reconstruction which Landlord is
obligated or undertakes to do. Tenant shall not be entitled to any compensation
or damages from Landlord for loss of the use of the Premises, damage to
Tenant's Personal Property or any inconvenience occasioned by such damage,
repair or restoration. Tenant hereby waives the provisions of Section 1932(2)
and Section 1933(4) of the California Civil Code, and the provisions of any
similar law hereinafter enacted.
(e) Replacement Cost. The determination in good faith by Landlord of the
estimated cost of repair of any damage, of the replacement cost, or of the time
period required for repair shall be conclusive for purposes of this Paragraph.
23. Condemnation.
(a) Total Taking -- Termination. If title to all of the Premises or so
much thereof is taken for any public or quasi-public use under any statute or
by right of eminent domain so that reconstruction of the Premises will not
result in the Premises being reasonably suitable for Tenant's continued
occupancy for the uses and purposes permitted by this Lease. This Lease shall
terminate as of the date possession of the Premises or part thereof be taken.
(b) Partial Taking. If any part of the Premises is taken and the
remaining part is reasonably suitable for Tenant's continued occupancy for the
purposes and uses permitted by this Lease, this Lease shall, as to the part so
taken, terminate as of the date that possession of such part of the Premises is
taken and the Monthly Rent shall be reduced in the same proportion that the
floor area of the portion of the Building so taken (less any addition thereto by
reason of any reconstruction) bears to the original floor area of the Building,
Landlord shall, at its own cost and expense, make all necessary repairs or
alterations to the Building so as to make the portion of the Building not taken
a complete architectural unit. Such work shall not, however, exceed the scope of
the work done by Landlord in originally constructing the Building. Monthly Rent
due and payable hereunder shall be temporarily abated during such restoration
period in proportion to the degree to which Tenant's use of the Premises is
impaired. Each party hereby waives the provisions of Section 1265.130 of the
California Code of Civil Procedure allowing either party to petition the
Superior Court to terminate this Lease in the event of a partial taking of the
Building or Premises.
(c) No Apportionment of Award. No award for any partial or total taking
shall be apportioned, it being agreed and understood that Landlord shall be
entitled to the entire award for any partial or total taking. Tenant assigns to
Landlord its interest in any award which may be made in such taking or
condemnation, together with any and all rights of Tenant arising in or to the
same or any part thereof. Nothing contained herein shall be deemed to give
Landlord any interest in or require Tenant to assign to Landlord any separate
award made to Tenant for the taking of Tenant's Personal Property, for the
interruption of Tenant's business, or its moving costs, or for the loss of its
goodwill.
(d) Temporary Taking. No temporary taking of the Premises shall
terminate this Lease or give Tenant any right to any abatement of Rent. Any
award made to Tenant by reason of such temporary taking shall belong entirely
to Tenant and Landlord shall not be entitled to share therein. Each party
agrees to execute and deliver to the other all instruments that may be required
to effectuate the provisions of this subparagraph.
(e) Sale Under Threat of Condemnation. A sale by Landlord to any
authority having the power of eminent domain, either under threat of
condemnation or while condemnation proceedings are pending, shall be deemed a
taking under the power of eminent domain for all purposes of this Paragraph.
24. Assignment and Subletting.
(a) Prohibition. Tenant shall not assign, mortgage, hypothecate,
encumber, grant any license or concession, pledge or otherwise transfer
(collectively, "assignment") this Lease, in whole or in part, nor sublet or
permit occupancy by any person other than Tenant of all or any part of the
Premises, without the prior written consent of Landlord in each instance, which
consent shall not be unreasonably withheld. Any purported assignment or
subletting contrary to the provisions hereof without consent shall be void. The
consent by Landlord to any assignment or subletting shall not constitute a
waiver of the necessity for such consent to any subsequent assignment or
subletting. As Additional Rent hereunder, Tenant shall reimburse Landlord for
actual legal and other expenses incurred by Landlord in connection with any
request by Tenant for consent to assignment or subletting in connection with any
proposed assignment or sublease. Tenant shall submit to Landlord in writing (i)
the name of the proposed assignee or sublessee, (ii) such information as to such
assignee's or sublessee's financial responsibility and standing as Landlord may
reasonably require, (iii) the proposed use of the Premises by such assignee or
sublessee; (iv) all of the terms and conditions upon which the proposed
assignment or subletting is to be made, and (v) an instrument of assignment or
sublease wherein such assignee or sublessee assumes all of Tenant's obligations
hereunder and agrees to be bound by the terms hereof.
(b) Excess Sublease Rental or Assignment Consideration. If, after the
first two years of the term hereof for any sublease or assignment, Tenant
receives rent or other consideration, either initially or over the term of the
sublease or assignment, in excess of the Monthly Rent called for hereunder, or
in case of the sublease of a portion of the Premises, in excess of such Monthly
Rent fairly allocable to such portion, promptly following its receipt thereof,
Tenant shall pay to Landlord, as Additional Rent hereunder, seventy-five percent
(75%) of the excess of each such payment of rent or other consideration in
excess of the Monthly Rent called for hereunder.
(c) Scope. The prohibition against assigning or subletting contained in
this Paragraph shall be construed to include a prohibition against any
assignment or subletting by operation of law, whether voluntary or involuntary.
If this Lease be assigned, or if the underlying beneficial interest of Tenant be
transferred, or if the Premises or any part thereof be sublet or occupied by any
person other than Tenant, Landlord may collect rent from the assignee, subtenant
or occupant and apply the net amount collected to the Monthly Rent herein
reserved and apportion any excess rent so collected in accordance with the terms
of subparagraph (b) next above, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the
assignee, subtenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. No assignment or subletting shall affect the continuing primary
liability of Tenant (which, following assignment, shall be joint and several
with the assignee), and Tenant shall not be released from performing any of the
terms, covenants and conditions of this Lease.
(d) Waiver. Notwithstanding any assignment or sublease, or any
indulgences, waivers or extensions of time granted by Landlord to any assignee
or sublessee, or failure by Landlord to take action against any assignee or
sublessee, Tenant waives notice of any default of any assignee or sublessee
other than any notice and time to cure to which Tenant is otherwise entitled to
hereunder, and agrees that Landlord may, at its option, proceed against Tenant
without having taken action against or joined such assignee or sublessee,
except that Tenant shall have the benefit of any indulgences, waivers and
extensions of time granted to any such assignee or sublessee.
25. Default.
(a) Tenant's Default. At the option of Landlord, a default under this
Lease by Tenant shall exist if any of the following events shall occur: (i) if
Tenant shall have failed to pay Rent or any other sum required to be paid
hereunder when due; or (ii) if Tenant shall have failed to perform any term,
covenant or condition of this Lease other than those requiring the payment of
money, and Tenant shall have failed to cure such failure within fifteen (15)
days after written notice from Landlord where such failure could reasonably be
cured within such fifteen (15) day period, provided however, that where such
failure could not reasonably be cured within the fifteen (15) day period, that
Tenant shall not be in default if it has commenced such cure within the fifteen
(15) day period and diligently thereafter prosecutes the same to completion
which in all events must occur within sixty (60) days thereafter; (iii) if
Tenant shall have assigned its assets for the benefit of its creditors; (iv) if
the sequestration or attachment of or execution on any material part of Tenant's
Personal Property essential to the conduct of Tenant's business shall have
occurred, and Tenant shall have failed to obtain a return or release of such
Personal Property within thirty (30) days thereafter, or prior to sale pursuant
to such sequestration, attachment or levy, whichever is earlier; (v) if Tenant
shall have failed to continuously or uninterruptedly conduct its business in the
Premises, or shall have abandoned or vacated the Premises; (vi) if a court shall
have made or entered any decree or order other than under the bankruptcy laws of
the United States or any state adjudging Tenant to be insolvent; or approving as
properly filed a petition seeking reorganization of Tenant; or directing the
winding up or liquidation of Tenant and such decree or order shall have
continued for a period of thirty (30) days; (vii) the filing of a voluntary
petition in bankruptcy by Tenant, a voluntary petition for arrangement, a
voluntary or involuntary petition for reorganization, or the filing of an
involuntary petition by Tenant's creditors, immediately (unless involuntary,
which case when the petition remains undischarged for a period of thirty (30)
days); (viii) if Tenant shall have failed to timely comply with the provisions
of Paragraph 26 or 29 of this Lease.
(b) Remedies. Upon a default, Landlord shall have the following
remedies, in addition to all other rights and remedies provided by law in
equity or otherwise provided in this Lease, to which Landlord may resort
cumulatively or in the alternative: (i) Landlord may continue this Lease in
full force and effect, and this Lease shall continue in full force and effect
as long as Landlord does not terminate this Lease, and Landlord shall have the
right to collect Rent when due; (ii) Landlord may, with or without terminating
this Lease, re-enter the Premises and remove all persons and property from the
premises, such property may be
8
removed and stored in a public warehouse or elsewhere at the cost of and for the
account of Tenant. No re-entry or taking possession of the Premises by Landlord
pursuant to the subparagraph shall be construed as an election to terminate this
Lease unless a written notice of such intention is given to Tenant, (iii)
Landlord may terminate Tenant's right to possession of the Premises at any time
by giving written notice to that effect, and relet the Premises or any part
thereof. Tenant shall be liable immediately to Landlord for all costs Landlord
incurs in reletting the Premises or any part thereof, including, without
limitation, brokers commissions, expenses of cleaning, redecorating, and further
improving the Premises and like costs. Reletting may be for a period shorter or
longer than the remaining term of this Lease. No act by Landlord other than
giving written notice to Tenant shall terminate this Lease. Acts of maintenance,
efforts to relet the Premises or the appointment of a receiver on Landlord's
initiative to protect Landlord's interest under this Lease shall not constitute
a termination of Tenant's right to possession. Upon termination, Landlord shall
have the right to remove all of Tenant's Personal Property and store same at
Tenant's cost and to recover from Tenant as damages (A) the worth at the time of
award of any unpaid rent and other sums due and payable which had been earned at
the time of termination; plus (B) the worth at the time of award of the amount
by which the unpaid rent and other sums which would have been payable after
termination until the time of award exceeds the amount of such Rent loss that
Tenant proves could have been reasonably avoided, plus (C) the worth at the time
of award of the amount by which the unpaid Rent and other sums due for the
balance of the Term after the time of award exceeds the amount of such Rent loss
that Tenant proves could be reasonably avoided, plus (D) any other amounts to
compensate Landlord for all the detriment proximately caused by Tenant's failure
to perform Tenant's obligations under this Lease, or which, in the ordinary
course of things, would be likely to result therefrom, including, without
limitation, any costs or expenses incurred by Landlord: (i) in retaking
possession of the Premises; (ii) in maintaining, repairing, preserving,
restoring, replacing, cleaning, altering or rehabilitating the Premises or any
portion thereof, including such acts for reletting to a new tenant or tenants;
(iii) for leasing commissions; or (iv) for any other costs necessary or
appropriate to relet the Premises; plus (E) at Landlord's election, such other
amounts and remedies in addition to or in lieu of the foregoing as may be
permitted from time to time by the laws of the State of California including,
without limitation, the remedies provided by California Civil Code Section 1951
4, as amended from time to time.
The "worth at the time of award" of the amounts referred to in
subparagraphs (b)(iii)(A) and (b)(iii)(B) above is computed by allowing
interest at the Interest Rate on the unpaid Rent and other sums due and payable
from the termination date through the date of award. The "worth at the time of
award" of the amount referred to in subparagraph (b)(iii)(C) is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus one percent (1%). Tenant waives redemption
or relief from forfeiture under California Code of Civil Procedure Sections
1174 and 1179, or under any other present or future law, in the event Tenant is
evicted or Landlord takes possession of the Premises by reason of any default
of Tenant hereunder.
(c) Landlord's Default. Landlord shall not be deemed to be in default in
the performance of any obligation required to be performed by it hereunder
unless and until it has failed to perform such obligation within thirty (30)
days after receipt of written notice by Tenant to Landlord (and its lendor(s) of
record who have provided Tenant with notice) specifying the nature of such
default, provided, however, that if the nature of Landlord's obligation is such
that more than thirty (30) days are required for its performance, then Landlord
shall not be deemed to be in default if it shall commence such performance
within such thirty (30) day period and thereafter diligently prosecute the same
to completion.
26. Subordination. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any bona fide mortgagee or deed of trust beneficiary
with a lien on all or any portion of the Premises or any ground lessor with
respect to the land of which the Premises are a part, this Lease shall be
subject and subordinate at all times to: (i) all ground leases or underlying
leases which may now exist or hereafter be executed affecting the Building or
the land upon which the Building is situated or both, and (ii) the lien of any
mortgage or deed of trust which may now exist or hereafter be executed in any
amount for which the Building, land, ground leases or underlying leases, or
Landlord's interest or estate in any of said items is specified as security.
Notwithstanding the foregoing, Landlord or any such ground lessor, mortgagee, or
beneficiary shall have the right to subordinate or cause to be subordinated any
such ground leases or underlying leases or any such liens to this Lease. If any
ground lease or underlying lease terminates for any reason or any mortgage or
deed of trust is foreclosed or a conveyance in lieu of foreclosure is made for
any reason, Tenant shall, notwithstanding any subordination and upon the request
of such successor in interest to Landlord, attorn to and become the Tenant of
the successor in interest to Landlord. Tenant covenants and agrees to execute
and deliver, within ten (10) days following a demand by Landlord and in the form
requested by Landlord, ground lessor, mortgagee or beneficiary, any additional
documents evidencing the priority or subordination of this Lease with respect to
any such ground leases or underlying leases or the lien of any such mortgage or
deed of trust. Tenant's failure to timely execute and deliver such additional
documents shall, at Landlord's option, constitute an additional default
hereunder. Tenant hereby irrevocably appoints Landlord as attorney-in-fact of
Tenant, which appointment is coupled with an interest, to execute, deliver and
record any such documents in the name and on behalf of Tenant.
27. Notices. Any notice or demand required or desired to be given under this
Lease shall be in writing and shall be personally served or in lieu of personal
service may be given by mail. If given by mail, such notice shall be deemed to
have been given when seventy-two (72) hours have elapsed from the time when
such notice was deposited in the United States mail, registered or certified,
postage prepaid, return receipt requested, addressed to the party to be served.
At the date of execution of this Lease, the addresses of Landlord and Tenant
are as set forth in Paragraph 1. After the Commencement Date, the address of
Tenant shall be the address of the Premises. Either party may change its
address by giving notice of same in accordance with this Paragraph.
28. Attorneys' Fees. If either party brings any action or legal proceeding for
damages for an alleged breach of any provision of this Lease, to recover Rent or
other sums due, to terminate this Lease or to enforce, project or establish any
term, condition or covenant of this Lease or the right of either party hereunder
or at law, the prevailing party shall be entitled to recover as a part of such
action or proceedings, or in a separate action brought for that purposes, actual
attorneys' fees and costs.
29. Estoppel Certificate. Tenant shall within seven (7) days following written
request by Landlord:
(a) Tenant Obligations. Execute and deliver to Landlord any documents,
including estoppel certificates, in a form prepared by Landlord (i) certifying
that this lease is unmodified and in full force and effect or, if modified,
stating the nature of such modification and certifying this Lease, as so
modified, is in full force and effect and the date to which the Rent and other
charges are paid in advance, if any; (ii) acknowledging that there are not, to
Tenant's knowledge, any uncured defaults on the part of the Landlord or stating
the nature of any uncured defaults; (iii) evidencing the status of the Lease as
may be required either by a lender making a loan to Landlord to be secured by
deed of trust or mortgage covering the Premises or a purchaser of the Premises
from Landlord; (iv) certifying the current Monthly Rent amount and the amount
and form of Security Deposit on deposit with Landlord; and (v) certifying to
such other information as Landlord, Landlord's Agents, mortgagees, prospective
mortgagees and purchasers may reasonably request.
Tenant's failure to deliver an estoppel certificate within seven (7) days
after delivery of Landlord's written request therefor shall be conclusive upon
Tenant (i) that this Lease is in full force and effect, without modification
except as may be represented by Landlord; (ii) that there are now no uncured
defaults in Landlord's performance; (iii) that not more than one (1) month's
Monthly Rent has been paid in advance; and (iv) that the other information
requested by Landlord is correct as stated in the form presented by Landlord.
Tenant hereby irrevocably appoints Landlord as Tenant's attorney-in-fact,
which appointment is coupled with an interest, to act in Tenant's name, place
and stead to execute such estoppel certificate on Tenant's behalf.
(b) Financial Information. Deliver to Landlord the current financial
statements of Tenant, and financial statements of the two (2) years prior to
the current financial statement's year, with an unqualified opinion of a
certified public accountant, including a balance sheet and profit and loss
statement for the most recent prior year, all prepared in accordance with
generally accepted accounting principles consistently applied.
30. Transfer of the Premises by Landlord. Upon any conveyance of the Premises
and assignment by Landlord of this Lease, Landlord shall be and is hereby
entirely released from all liability under any and all of its covenants and
obligations contained in or derived from this Lease occurring after the date of
such conveyance and assignment, and Tenant agrees to attorn to any entity
purchasing or otherwise acquiring the Premises.
31. Landlord's Right to Perform Tenant's Covenants. If Tenant shall at any
time fail to make any payment or perform any other act on its part to be made
or performed under this Lease, Landlord may, but shall not be obligated to and
without waiving or releasing Tenant from any obligation of Tenant under this
Lease, make such payment or perform such other act to the extent Landlord may
deem desirable, and in connection therewith, pay expenses and employ counsel.
All sums so paid by Landlord and all penalties, interest and costs in
connection therewith shall be due and payable by Tenant to Landlord on the next
day after such payment by Landlord, together with interest thereon at the
Interest Rate from such date to the date of payment thereof by Tenant to
Landlord, plus collection costs and attorneys' fees. Landlord shall have the
same rights and remedies for the nonpayment thereof as in the case of default
in the payment of Rent.
32. Tenant's Remedy. The obligations of Landlord do not constitute the
personal obligation of the individual partners, trustees, directors, officers
or shareholders of Landlord or its constituent partners. If Landlord shall fail
to perform any covenant, term, or condition of this Lease upon Landlord's part
to be performed, Tenant shall be required to deliver to Landlord written notice
of the same. If, as a consequence of such default, Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only out of the
proceeds of sale received upon execution of such judgment and levied thereon
against the right, title and interest of Landlord in the Premises and out of
Rent or other income from such property receivable by Landlord or out of
consideration received by Landlord from the sale or other disposition of all or
any part of Landlord's right, title or interest in the Premises, and no action
for any deficiency may be sought or obtained by Tenant.
33. Mortgagee Protection. Upon any default on the part of Landlord, Tenant
will give notice by registered or certified mail to any beneficiary of a deed
of trust or mortgagee of a mortgage covering the Premises who has provided
Tenant with notice of their interest together with an address for receiving
notice, and shall offer such beneficiary or mortgagee a reasonable opportunity
to cure the default (which, in no event shall be less than ninety (90) days),
including time to obtain possession of the Premises by power of sale or a
judicial foreclosure, if such should prove necessary to effect a cure. Tenant
agrees that each lender to whom this Lease has been assigned by Landlord is an
express third party beneficiary hereof. Tenant shall not make any prepayment of
Monthly Rent more than one (1) month in advance without the prior written
consent of each such lender. Tenant waives the collection of any deposit from
such lender(s) or any purchaser at a foreclosure sale of such lender(s) deed
of trust unless the lender(s) or such purchaser shall have actually received
and not refunded the deposit. Tenant agrees to make all payments under the
Lease to the lender with the most senior encumbrance upon receiving a
direction, in writing, to pay said amounts to such lender. Tenant shall comply
with such written direction to pay without determining whether an event of
default exists under such lender's loan to Landlord.
34. Brokers. Landlord and Tenant each warrant and represent to the other that
neither has had any dealings with any real estate broker, agent or finder in
connection with the negotiation of this Lease or the introduction of the
parties to this transaction, except for the brokers identified in Paragraph (o)
of the Lease Summary, and that it knows of no other real estate broker, agent
or finder who is or might be entitled to a commission or fee in connection with
this Lease. In the event of any such additional claims for brokers' or finders'
fees with respect to this Lease, then Tenant shall indemnify, save harmless and
defend Landlord from and against such claims if they shall be based upon any
statement or representation or agreement by Tenant, and Landlord shall
indemnify, save harmless and defend Tenant if such claims shall be based upon
any statement, representation or agreement made by Landlord.
35. Examination of Lease. Submission of this Lease for examination or
signature by Tenant does not create a reservation of or option to Lease. This
Lease shall only become effective and binding upon full execution hereof by
both Landlord and Tenant.
36. Recording. Tenant shall not record this Lease nor a short form memorandum
thereof without Landlord's prior written consent.
37. Quitclaim. Upon any termination of this Lease, Tenant shall, at Landlord's
request, execute, have acknowledged and deliver to Landlord a quitclaim deed of
the Premises.
9
38. Modifications for Lender. If, in connection with obtaining financing for
the Premises or any portion thereof, Landlord's lender shall request reasonable
modification to this Lease as a condition to such financing, Tenant shall not
unreasonably withhold, delay or defer its consent thereto, provided such
modifications do not materially adversely affect Tenant's rights hereunder.
39. Parking and Use of Common Area and Facilities.
(a) Grant of Non-Exclusive Common Area License and Right. Landlord hereby
grants to Tenant and its successors and assigns, a non-exclusive license and
right for Tenant and its permitted subtenants in common with Landlord and all
persons, firms and corporations conducting business in the Project and their
respective customers, guests, licensees, invitees, subtenants, employees and
agents, to use the Common Area within the Project for vehicular parking for
pedestrian and vehicular ingress, egress and travel, and for such other
purposes and for doing such other things as may be provided for, authorized
and/or permitted by any covenants, conditions, easements or restrictions now or
hereafter encumbering the Premises, such non-exclusive license and right to be
appurtenant to Tenant's leasehold estate in and to the leased Premises created
by this Lease. The non-exclusive license and right granted pursuant to the
provisions of this Paragraph shall be subject to any and all covenants,
conditions, easements and restrictions now or hereafter encumbering the
Premises, which pertain in any way to the Common Area covered by such
encumbrances; and the provisions of this Lease.
(b) Use of Common Area. Notwithstanding anything to the contrary herein.
tenant agrees for itself and for its successors, assigns, employees, and agents
that it and they shall use the Common Area within the Project only for the
purposes permitted hereby and by any covenants, conditions, easements or
restrictions now or hereafter encumbering the Premises. It is understood that
all uses permitted within the Common Area shall be undertaken with reason and
judgment so as not to interfere with the primary use of said Common Area which
is to provide parking and vehicular and pedestrian access throughout the Common
Area within the Project and to adjacent public streets for the Landlord, its
tenants, subtenants and all persons, firms and corporations conducting business
within the Project and their respective customers, guests, and licensees. In no
event shall tenant erect or cause to be erected any structures, building,
trailer, fence, wall, signs or other obstructions on the Common Area within the
Project except as otherwise permitted herein or by any covenants, conditions
or restrictions now or hereafter encumbering the Premises nor shall Tenant store
or sell any merchandise, equipment and/or materials on the Common Area within
the Project.
(c) Control and Maintenance of Common Area.
(i) Subject to provisions of any covenants, conditions, easements or
restrictions now or hereafter encumbering the Premises, it is understood and
agreed that all Common Area within the Project and all improvements located from
time to time within such Common Area, are for the general use, in common, of
the Landlord and its tenants and subtenants and all persons, firms and
corporations conducting business in the Project and their respective customers,
guests, licensees, invitees, employees and agents, and shall at all times be
subject to the exclusive control and management of the Landlord.
(ii) Landlord shall have the right to construct, maintain and operate
lighting facilities within the Common Area; to police the Common Area from time
to time, to change the area, level, location and arrangement of the parking
areas and other improvements within the Common Area; to restrict parking by
tenants, their officers, agents and employees to employee parking areas, to
enforce parking charges (by operation of meters or otherwise); to close all or
any portion of the Common Area or improvements therein to such extent as may,
in the opinion of counsel for Landlord, be legally sufficient to prevent a
dedication thereof or the accrual of any rights to any person or to the public
therein; to close temporarily all or any portion of the Common Area and/or the
improvements thereon, to discourage non-customer parking, and to do and perform
such other acts in and to said Common Area and improvements thereon as, in the
use of good business judgment, Landlord shall determine to be advisable.
(iii) subject to the provisions of any covenants, conditions, and
restrictions now or hereafter encumbering the Premises, Landlord shall
operate and maintain or cause to be operated and maintained, the Common Area
within the Project in such a manner as Landlord in its sole discretion shall
determine from time to time. Without limiting the scope of such discretion,
Landlord shall have the full right to employ or cause to be employed all
personnel and to make or cause to be made all rules and regulations pertaining
to or necessary for the proper operation and maintenance of the Common Area and
the improvements located thereon.
(iv) It is hereby further agreed that the use of the Common Area by
Tenant, its permitted subtenants, if any, and their respective customers,
guests, licensees, invitees, employees and agents may and shall be restricted
such that no part of the Common Area may be used for the storage of any items,
including without limitation, vehicles, materials, inventory and or equipment.
All trash and other refuse shall be placed in designated receptacles. There
shall be no overnight parking of any vehicles of any kind, and vehicles which
have been abandoned or parked in violation of the terms hereof may be towed
away at the owner's expense. No work of any kind, including, without
limitation, painting, drying, cleaning, repairing, manufacturing, assembling,
cutting, merchandising and/or displaying shall be permitted. Parking within the
Common Area shall be limited to striped parking stalls, and no parking shall be
permitted in any driveways, accessways and/or in any area which would prohibit
or impede the free flow of traffic within the Common Area.
(v) Any use of the Common Area in violation of the restrictions set
forth hereinabove shall constitute a material default under this Lease.
(d) Revocation of License. All Common Area and improvements located
therein which Tenant is permitted to use and occupy pursuant to the provisions
of this lease, are to be used and occupied under a revocable license and right,
and if any such license be revoked, or if the amount of such areas be
diminished, Landlord shall not be subject to any liability nor shall Tenant be
entitled to compensation or diminution or abatement of rent, nor shall such
revocation or diminution of such areas be deemed constructive or actual
eviction. It is understood and agreed that the condemnation or other taking or
appropriation by any public or quasi-public authority, or sale in lieu of
condemnation, of all or any portion of the Common Area within the Project, shall
not constitute a violation of Landlord's agreements hereunder, nor shall Tenant
be entitled to participate in or make any claim for any award or other
condemnation proceeds arising from any such taking or appropriation of the
Common Area.
(e) Landlord's Reserved Rights. Provided Landlord does not unreasonably
interfere with Tenant's use of the Premises, Landlord reserves the right to
install, use, maintain, repair, relocate and replace pipes, ducts, conduits,
wires and appurtenant meters and equipment included in the Premises or outside
the Premises, change the boundary lines of the Project and install, use,
maintain, repair, alter or relocate, expand and replace any Common Area. Such
right of Landlord shall include, without limitation, designating from time to
time certain portions of the Common Area as exclusively for the benefit of
certain tenants in the Project.
40. General
(a) Captions. The captions and headings used in this Lease are for the
purpose of convenience only and shall not be construed to limit or extend the
meaning of any part of this Lease.
(b) Executed Copy. Any fully executed copy of this Lease shall be deemed
an original for all purposes.
(c) Time. Time is of the essence for the performance of each item,
condition and covenant of this Lease.
(d) Severability. If any one or more of the provisions contained herein
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any
other provision of this Lease, but this Lease shall be construed as if such
invalid, illegal or unenforceable provision had not been contained herein.
(e) Choice of Law. This Lease shall be construed and enforced in
accordance with the laws of the State of California. The language in all parts
of this Lease shall in all cases be construed as a whole according to its fair
meaning and not strictly for or against either Landlord or Tenant.
(f) Gender; Singular, Plural. When the context of this Lease requires,
the neuter gender includes the masculine, the feminine, a partnership or
corporation or joint venture, and the singular includes the plural.
(g) Binding Effect. The covenants and agreement contained in this Lease
shall be binding on the parties hereto and on their respective successors and
assigns to the extent this Lease is assignable.
(h) Waiver. The waiver by Landlord of any breach of any term, condition
or covenant of this Lease shall not be deemed to be a waiver of such provision
or any subsequent breach of the same or any other term, condition or covenant
of this Lease. The subsequent acceptance of Rent hereunder by Landlord shall
not be deemed to be a waiver of any preceding breach at the time of acceptance
of such payment. No covenant, term or condition of this Lease shall be deemed
to have been waived by Landlord unless such waiver is in writing signed by
Landlord.
(i) Entire Agreement. This Lease is the entire agreement between the
parties, and supersedes any prior agreements, representations, negotiations or
correspondence between the parties except as expressed herein. Except as
otherwise provided herein, no subsequent change or addition to this Lease shall
be binding unless in writing and signed by the parties hereto.
(j) Authority. If Tenant is a corporation or a partnership, each
individual executing this Lease on behalf of said corporation or partnership,
as the case may be, represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of said entity in accordance with its
corporate bylaws, statement of partnership or certificate of limited
partnership, as the case may be, and that this Lease is binding upon said
entity in accordance with its terms. Landlord, at its option, may require a
copy of such written authorization to enter into this Lease. The failure of
Tenant to deliver the same to Landlord within seven (7) days of Landlord's
request therefor shall be deemed a default under this Lease.
(k) Exhibits. All exhibits, amendments, riders and addenda attached
hereto are hereby incorporated herein and made a part hereof.
(l) Lease Summary. The Lease Summary at the beginning of this Lease is
intended to provide general information only. In the event of any inconsistency
between the Lease Summary and the specific provisions of this Lease, the
specific provisions of this Lease shall prevail.
41. Other Provisions:
SEE ADDENDUM ATTACHED HERETO AND
MADE A PART HEREOF
TENANT: LANDLORD:
INTERCHECKS, INCORPORATED METROPOLITAN LIFE INSURANCE COMPANY
By: [SIG] By: [SIG]
----------------------------- --------------------------------
Its: [TITLE] Its: [TITLE]
----------------------------- --------------------------------
By: [SIG]
-----------------------------
10
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the "First Amendment") is made and entered
into as of June 15, 1989 by and between Metropolitan Life Insurance Company, a
New York corporation ("Landlord"), and Interchecks, Incorporated, a Washington
corporation ("Tenant").
R E C I T A L S:
---------------
A. Landlord and Tenant have heretofore entered into that certain
Standard Form Lease (Multi-Tenant; Net) dated as of January 31, 1989 (the
"Lease") pursuant to which Landlord has leased to Tenant certain premises in one
of the buildings comprising Savi Tech Center, said building being commonly known
as 00000 Xxxx Xxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, all as more particularly
described therein (the "Premises").
B. Landlord and Tenant now desire to amend the Lease to, among other
things, modify the Anticipated Commencement Date, the Initial Monthly Rent and
certain of the provisions dealing with the initial tenant improvement work to
be performed in the Premises.
NOW, THEREFORE, the parties hereto agree as follows:
1. Defined Terms. Unless defined otherwise herein, all capitalized
terms used in this First Amendment shall have the meanings attributed to such
terms in the Lease.
11
2. Anticipated Commencement Date. The Anticipated Commencement Date set
forth in Paragraph (j) of the Lease Summary portion of the Lease is hereby
changed from June 1, 1989 to August 7, 1989.
3. Rent.
(a) The Initial Monthly Rent set forth in Paragraph (1) of the Lease
Summary portion of the Lease is hereby changed from $14,250 to $15,600 per
month and from $171,000 to $187,200 per year.
(b) Subparagraph (a) of Paragraph 43 of the Addendum to the Lease is
deleted in its entirety and is of no further force or effect.
(c) Subparagraph (b) of said Paragraph 43 of the Addendum is amended
in its entirety to read as follows:
"(b) The Initial Monthly Rental of $15,600 set forth in Paragraph (1) of
the Lease Summary on Page 1 hereof shall be applicable to the period
commencing on the Commencement Date (as such term is defined in
subparagraph (a) of Paragraph 41 hereof) to and including the last day of
the thirty-sixth (36th) month of the initial Term hereof."
(d) The reference to "$14,250" is the fourth line of subsection (i)
of subparagraph (c) of said Paragraph 43 of the Addendum is revised to read
"$15,600".
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12
4. Construction of Tenant Improvements.
(a) The first sentence of subparagraph (b) of Paragraph 46 of the
Addendum to the Lease is amended in its entirety to read as follows:
"Landlord at its own cost (except as otherwise provided in subparagraph (d)
below), shall, through a guaranteed maximum cost construction contract
("Construction Contract") with a contractor selected by Landlord
("Contract"), cause the construction of the Tenant Improvements to be
carried out in substantial conformance with the Working Plans approved by
Landlord and by Tenant (a copy of which is attached hereto as Exhibit A and
incorporated herein by reference) and in a good and workmanlike manner."
(b) The last phrase in the second sentence of subparagraph (b) of
said Paragraph 46 of the Addendum, commencing with the words "the cost of which
. . ." is deleted in its entirety and is of no further force or effect.
5. Allowance. Subparagraph (c) of Paragraph 46 of the Addendum to the
Lease is amended in its entirety to read as follows:
(c) Allowance. Intentionally omitted."
--------- ------------- -------
6. Change Orders: The following is added to subparagraph (d) ("Change
Orders") of Paragraph 46 of the Addendum:
"Notwithstanding anything to the contrary set forth in the preceding
paragraph or elsewhere in this Lease:
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13
(i) Tenant shall not be liable for the payment of any increase in the cost
of constructing the Tenant Improvements resulting from a change order with
respect to the Working Plans attached hereto as Exhibit A requested by
Landlord.
(ii) Tenant shall be liable for the payment of any increase in the cost of
constructing the Tenant Improvements resulting from change orders with
respect to the Working Plans attached hereto as Exhibit A requested by
Tenant only to the extent that any such increased cost resulting therefrom
increases the total cost of constructing the Tenant Improvements in excess
of $637.600.
(iii) Tenant shall be liable for the payment of only 50% of any increase in
the cost of constructing the Tenant Improvements in excess of $637,600
resulting from change orders with respect to the Working Plans attached
hereto as Exhibit A requested by any governmental entity.
It is agreed and understood that the phrase "cost of constructing the
Tenant Improvements" as used above includes any and all costs incurred by
Landlord or the Contractor in connection with the construction of the
Tenant Improvements, including without limitation any and all reasonable
fees, charges, costs or expenses of any kind or nature reasonably incurred
by Landlord in connection with architectural and space planning and design,
building permits and fees, governmental processing and approval,
construction and completion of the Tenant Improvements."
7. No Claims. Landlord acknowledges that, as of the date hereof, there
are no claims for any delays "due to the fault" of Tenant. Tenant acknowledges
that, as of the date hereof, there are no claims for any delays caused by
Landlord.
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14
8. Additional Provisions. Except as otherwise provided in this First
Amendment, all of the terms, covenants, conditions, provisions and agreements
of the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
Lease to be executed as of the day and year first above written.
METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation
By: XXXXXXXXX X. XXXXX
------------------------------
Its: Vice President
-----------------------------
INTERCHECKS, INCORPORATED,
a Washington corporation
By: [SIG]
------------------------------
Its: President, Western Division
-----------------------------
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15
SECOND AMENDMENT
TO LEASE
THIS SECOND AMENDMENT TO LEASE ("Second Amendment") is made and entered
into as of this 14 day of September, 1992 ("Execution Date") by and between
METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation ("Landlord") and
XXXX X. XXXXXXX COMPANY, a Georgia corporation, as successor-in-interest to
INTERCHECKS INC., a Washington corporation ("Tenant"), with reference to the
following facts:
RECITALS
A. Landlord and Interchecks Inc. entered into that certain written lease
dated January 31, 1989, as amended by that First Amendment to Lease dated June
15, 1989, and that Letter Commencement Memorandum dated November 9, 1989
(herein collectively referred to as the "Original Lease"). Xxxx X. Xxxxxxx
Company is the successor-in-interest to Interchecks, Inc. as Tenant, pursuant
to an assignment of lease as outlined in that certain letter consenting to
ownership change dated February 19, 1992.
B. Pursuant to the Original Lease, Landlord leases to Tenant, and Tenant
leases from Landlord, certain premises consisting of approximately Twenty Five
Thousand (25,000) rentable square feet of space in one of the buildings
commonly comprising 00000 Xxxx Xxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, all as
more particularly described in the Original Lease ("the Original Premises").
C. Tenant now desires to lease from Landlord, and Landlord desires to
lease to Tenant, upon the terms and conditions set forth hereinbelow, certain
premises consisting of the first floor of the Premises commonly known as 00000-X
Xxxx Xxxxx Xxxxxxx, containing approximately Five Thousand (5,000) square feet,
as shown hatched in black on the site plan attached hereto as Exhibit A (the
"Additional Space"). In connection therewith, Tenant and Landlord desire to
modify and amend the Lease as provided in this Second Amendment.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants and conditions set forth herein and of other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Premises. Notwithstanding any conflict with any provision of the
Original Lease, Landlord hereby leased to Tenant and Tenant hereby leases from
Landlord, the Additional space upon all of the terms and conditions set forth
in the Original Lease, as the same are amended or modified by this Second
Amendment. From and after September 1,1992 (the "Effective Date") until the
Termination Date (as defined in Section 2 herein), the term "Premises" shall
mean the Original Premises and the Additional
16
Space. From and after the Effective Date, the term "Lease" shall mean the
Original Lease as modified by this Amendment.
2. Term. The term of the Lease with respect to the Additional Space,
shall commence on the Effective Date and shall expire sixty (60) days after
either Landlord or Tenant gives notice of termination in accordance with
Section 3 of this Amendment (the "Additional Space Termination Date"), unless
terminated earlier pursuant to the terms of the Lease.
3. Termination. Both Landlord and Tenant shall have the right to
terminate the Lease, with respect to the Additional Space only, by giving sixty
(60) days prior written notice of such termination to the other party.
4. Possession. On the Effective Date, Landlord shall deliver possession
of the Additional Space to Tenant, and Tenant shall accept delivery of the
Additional Space from Landlord, unimproved and in its "As-Is" condition (i.e.,
the condition existing as of the date of said delivery), without any express or
implied representations or warranties of any kind by Landlord or Landlord's
employees, agents, or management regarding the physical condition of the
Additional Space, and without any obligation of Landlord to construct or
install, or to pay for such construction or installation of, any tenant
improvements in the Additional Space.
5. Rent. In addition to the Rent due and payable in accordance with the
Original Lease, from and after the Effective Date, the Monthly Rent for the
Additional Space shall be Two Thousand Three Hundred Dollars ($2,300) payable
in advance on or before the first day of each month. In addition to the Monthly
Rent, Tenant shall pay any rental adjustments and additional payments as and
when provided in the Lease.
6. Tenant's Percentage Operating Expenses. Notwithstanding any other
provision of the Lease, including without limitation, Paragraph (q) of the
Lease Summary on Page 1 of the Lease and Addendum #48 of the Lease thereof, the
parties acknowledge and agree that during the period in which the Additional
Space is part of the Premises, Tenant's Percentage of Operating Expenses is
58.05%. In the event that either party exercises the right set forth in
Paragraph 3 to terminate the Lease with respect to the Additional Space,
Tenant's Percentage of Operating Expenses shall be 48.40%.
7. No Assignment. Tenant's rights and obligations under the Lease with
respect to the Additional Space apply solely to Tenant and may not be assigned.
8. Surrender of Additional Space. At the end of the Additional Space
Term, Tenant shall deliver possession of the
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17
Additional Space to Landlord in the same condition it was received, reasonable
wear and tear excepted.
9. Compliance with FHA and ADA. Tenant shall take all proper and
necessary action to cause the Premises to be kept, maintained, used and
occupied in compliance with the Fair Housing Act of 1968 (as amended) and the
Americans with Disabilities Act of 1990.
10. Entire Agreement; Amendment. Tenant, as successor-in-interest to
Interchecks, Inc. hereby affirms the Original Lease, as amended by this Second
Amendment, and agrees that the Original Lease, as amended by this Second
Amendment, constitutes the full and complete agreement and understanding
between the parties hereto and shall supersede all prior communications,
representations, understandings or agreements, if any, whether oral or written
concerning the subject matter contained in the Original Lease as so amended,
and no provision of the Original Lease as so amended may be modified, amended,
waived or discharged, in whole or in part, except by a written instrument
executed by all of the parties hereto.
11. Effect of Headings; Recitals. The titles or headings of the various
divisions or Sections hereof are intended solely for convenience and are not
intended and shall not be deemed to or in any way be used to modify, explain or
place any construction upon any of the provisions of this Second Amendment. The
recitals set forth at the beginning of this Second Amendment are true and
correct and constitute a part of this Second Amendment.
12. Authority. Each person executing this Second Amendment represents
and warrants that he or she is duly authorized and empowered to execute it, and
does so as the act of and on behalf of the party indicated below.
13. Defined Terms. Capitalized terms used in this Second Amendment and
not otherwise defined, other than terms capitalized in the ordinary course of
punctuation, shall, unless otherwise specified herein, have the same meanings
and definitions set forth in the Original Lease.
14. Force and Effect. Except as modified by this Second Amendment, the
terms and provisions of the Original Lease are hereby ratified and confirmed
and shall remain in full force and effect. Should any inconsistency arise
between this Second Amendment and the Original Lease as to the specific
matters which are the subject of this Second Amendment, the terms and
conditions of this Second Amendment shall control. This Second Amendment shall
be construed to be a part of the Original Lease and shall be deemed
incorporated in the Original Lease by this reference.
- 3 -
18
15. Attorneys' Fees and Costs. In the event of any action at law or in
equity between the parties hereto to enforce any of the provisions hereof, any
unsuccessful party to such litigation shall pay to the successful party all
costs and expenses, including actual attorneys' fees (including costs and
expenses incurred in connection with all appeals) incurred therein by such
successful party, and such costs, expenses and attorneys' fees may be included
in and as part of such judgment. A successful party shall be any party who is
entitled to recover its costs of suit, whether or not the suit proceeds to
final judgment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
TENANT: XXXX X. XXXXXXX COMPANY,
a Georgia corporation
By: /s/ XXXXXX X. XXXXXXX
---------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------
Its: Senior Vice President
---------------------------
By:
---------------------------
Name:
---------------------------
Its:
---------------------------
LANDLORD: METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By: [SIG]
---------------------------
Name: [NAME]
---------------------------
Its: Assistant Vice President
---------------------------
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EXHIBIT A -- Leased Premises
Crosshatched area represents leased premises, commonly known as 00000 Xxxx Xxxxx
Xxxxxxx, Xxxxx X, Xxxxx Xxxxx, Xxxxxxxxxx. Leased premises is approximately
5,000 rentable square feet.
SAVI TECHNOLOGY CENTER
(Client to provide a fair and accurate description of artwork)
20
THIRD AMENDMENT TO LEASE
That certain lease dated January 31, 1989, by and between METROPOLITAN LIFE
INSURANCE COMPANY, A New York Corporation, Landlord, and XXXX X. XXXXXXX
COMPANY, A Georgia Corporation, as successor in interest to INTERCHECKS INC., A
Washington Corporation, Tenant, for the premises located at 00000 Xxxx Xxxxx
Xxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, is amended this 25th day of February, 1993
solely as hereinafter described.
Effective the First day of January, 1993, the following modifications are to be
effective in the Lease agreement:
1. Premises Area: Tenant's Additional Space shall be modified to
approximately 8,000 (eight-thousand) rentable square feet, as shown
hatched in black on the site plan attached hereto as Exhibit A.
2. Rent: Tenant's additional rent payments for the Additional Space
shall be modified to $3,680.00 (Three-thousand-six-hundred-eighty
dollars) per month, payable in advance on or before the first day of
each month. In addition to the monthly Rent, Tenant shall pay any
rental adjustments and additional payments as and when provided in the
lease.
3. Tenant's Percentage Operating Expenses: Notwithstanding any other
provision of the Lease, including without limitation, Paragraph (q) of
the Lease summary on Page 1 of the Lease and Addendum #48 of the Lease
thereof, the parties acknowledge and agree that during the period in
which the Additional Space is part of the Premises, Tenant's
Percentage of Operating Expenses is 63.85% of the Building, and is
9.65% of the Project. In the event that either party exercises the
right set forth in Paragraph 3 of the First Amendment to Lease to
terminate the Lease with respect to the Additional Space, Tenant's
Percentage of Operating Expenses shall be 48.40% of the Building and
7.32% of the Project.
All other terms and conditions of said Lease shall remain in full force and
effect.
IN WITNESS THEREOF, Landlord and Tenant have executed this Amendment as of the
date first written above.
LANDLORD: METROPOLITAN LIFE INSURANCE COMPANY, A New York Corporation
By: /s/ [SIG]
-----------------------------
Its: Investment Officer
----------------------------
TENANT: XXXX XXXXXXX COMPANY, A Georgia Corporation
By: /s/ [SIG]
-----------------------------
Its: Senior Vice President
----------------------------
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FOURTH AMENDMENT TO LEASE
THIS FOURTH AMENDMENT TO LEASE (the "Fourth Amendment") is dated as of
May 19, 1993 by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation ("Landlord") and XXXX X. XXXXXXX COMPANY, a Georgia corporation,
successor in interest to Interchecks Inc., a Washington corporation ("Tenant"),
with reference to the following facts:
A. Landlord and Tenant entered into that certain lease dated as of
January 31, 1989 (the "Original Lease"), including an Addendum thereto, for
certain premises consisting of approximately 25,000 square feet (the "Original
Premises") more particularly described in the Original Lease.
B. The Original Lease was amended by a First Amendment dated as of June
15, 1989, a Second Amendment (the "Second Amendment") dated as of September 14,
1992, and a Third Amendment (the "Third Amendment") dated as of February 25,
1993. The Original Lease as so amended is hereby referred to as the Amended
Lease. The Second Amendment and the Third Amendment each incorporated certain
additional premises more particularly described in each (collectively, the
"Amendment Premises") into the Premises.
C. Landlord and Tenant now desire to modify and amend the Amended Lease
to reflect, among other provisions, the addition of certain premises (the
"Additional Premises"), all as more particularly set forth below.
NOW THEREFORE, in consideration of the mutual covenants set forth herein
and other good and valuable consideration, the receipt whereof and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. Scope of Fourth Amendment. Except as expressly provided in this
Fourth Amendment, the Amended Lease shall remain in full force and effect.
Except as expressly provided in this Fourth Amendment, the term "Lease" as used
in the Amended Lease shall refer to the Amended Lease as modified by this Fourth
Amendment. Capitalized terms used in this Fourth Amendment and not otherwise
defined herein shall have the respective meanings set forth in the Amended
Lease.
2. Modifications to Amended Lease. Effective as of June 1, 1993 (the
"Effective Date"), the Amended Lease is hereby modified as hereinafter set
forth:
(a) The Additional Premises, consisting of approximately 18,213 rentable
square feet, as more particularly described on Exhibit A attached hereto and
made a part hereof, are hereby incorporated into the
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attached hereto and made a part hereof, are hereby incorporated into the
Premises. All of the terms and conditions of the Amended Lease shall be
applicable to the Additional Premises, except as specifically set forth in this
Fourth Amendment.
(b) Amending Paragraph 5 of the Second Amendment and Paragraph 2 of
the Third Amendment, the Monthly Rent on account of the Amendment Premises and
the Additional Premises shall be $0.42 per rentable square foot, or $11,009 in
the aggregate, for the entire Term, except as set forth in the following
sentence. With respect to the Amendment Premises and the Additional Premises
only, (1) Tenant shall not be obligated to pay any Monthly Rent for the first
three (3) full months following the Effective Date, and (ii) Tenant shall pay
Monthly Rent in the amount of $0.36 per rentable square foot, or $9,437 in the
aggregate, for the fourth through the forty-eighth full month following the
Effective Date. The rent concession granted pursuant to the immediately
preceding sentence shall be subject to all of the terms of Paragraph 43(a) of
the Addendum to the Original Lease, and the period during which a rent
concession pursuant to the immediately preceding sentence shall be in effect
shall be deemed to be the Monthly Rent Abatement Period for purposes of said
Paragraph 43.
(c) Amending Paragraph (q) of the Lease Summary and Paragraph 48 of
the Addendum to the Original Lease and, after incorporating the Additional
Premises and the Amendment Premises into the Premises, Tenant's Percentage of
48.40 is hereby deleted and Tenant's Percentage of One Hundred (100) is hereby
substituted in its place, and the figure "7.32" on the line of page 13 of the
Addendum to the Original Lease (referring to Tenant's Percentage of Operating
Expenses as to the Project) is hereby deleted and the figure "Fifteen (15)" is
substituted in its place.
(d) The Commencement Date with respect to the Additional Premises
shall be the Effective Date.
(e) Notwithstanding anything in Article 22 or Article 23 of the
Original Lease or Paragraph 53 of the Addendum to the Original Lease to the
contrary, (i) the damage, destruction or the condemnation or taking by eminent
domain of the Additional Premises or the Amendment Premises, or both, shall not
affect Tenant's obligations under the Lease, as amended hereby, as to the
remaining Premises, but shall only affect Tenant's rights and obligations as to
the Additional Premises or the Amendment Premises, as the case may be; and (ii)
the damage, destruction or the condemnation or taking by eminent domain of the
Original Premises shall not affect Tenant's obligations under the Lease as to
the Amendment Premises or the Additional Premises, but shall only affect
Tenant's rights and obligations as to the Original Premises.
(f) Landlord shall provide Tenant with the tenant improvement
allowance (the "Fourth Amendment Allowance") in an amount not to exceed Two
Hundred Fifty Thousand Dollars ($250,000). The tenant improvements to
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be performed in connection with the Fourth Amendment (the "Fourth Amendment
Improvements") shall be performed in accordance with, and the Fourth Amendment
Allowance shall be subject to, Paragraph 46 of the Addendum to the Original
Lease, except that the second paragraph of Paragraph 46(c) shall be deemed to
be deleted and shall be of no force or effect as to the as to the Fourth
Amendment Improvements or the Fourth Amendment Allowance. Upon the completion
of all of the Fourth Amendment Improvements, if the sum of the guaranteed
maximum cost of the Construction Contract and other costs and expenses incurred
by Landlord which are properly chargeable against the Fourth Amendment
Allowance is less than Two Hundred Fifty Thousand Dollars ($250,000)
("Savings"), Landlord shall be entitled to retain the Savings. Attached hereto
as Exhibit B and made a part hereof is a preliminary space plan (the "Fourth
Amendment Space Plan"). As to the Fourth Amendment Improvements, all
references in Paragraph 46 to the Preliminary Plan shall refer to the Fourth
Amendment Space Plan. All such installations shall immediately become and
remain the property of Landlord. Except as expressly set forth in this
Paragraph 2(f), Landlord has no obligation to pay for or to perform any work in
the Original Premises, the Amendment Premises or the Additional Premises and
except as expressly set forth in this Paragraph 2(f), Landlord has no
obligation to improve, alter, repair or remodel the Additional Premises in any
way whatsoever.
(g) If Landlord shall be unable to give possession of the Additional
Premises upon the Effective Date by reason of the fact that the Additional
Premises are not substantially complete in accordance with Exhibit B, or for
any other reason, any such delay resulting therefrom shall be deemed excused
and Landlord shall not be subject to any liability for the failure to give
possession on said date. Under such circumstances, unless such delay is caused
by activities of Tenant, its agents, its representatives or its contractors,
Tenant's shall have no obligation to pay the Monthly Rent allocable to the
Additional Premises until possession of the Additional Premises is given or the
Additional Premises is available for occupancy by Tenant, as fixed in a notice
given by Landlord to Tenant. No such failure to give possession on the
Effective Date shall in any way affect or impair the validity of the Lease or
the obligations of Tenant hereunder, including the payment of Rent for the
Original Premises or the Amendment Premises.
3. Acceptance by Tenant. Tenant hereby acknowledges (i) that Landlord
has performed all of Landlord's obligations with respect to the premises covered
by the Amended Lease, and (ii) that Landlord is not in default under any of the
terms of the Amended Lease. Neither Landlord nor Landlord's representatives
have made any representations or promises with respect to the Additional
Premises except as herein expressly set forth. Tenant acknowledges and agrees
that Tenant has been afforded ample opportunity to inspect the Additional
Premises, and has investigated its condition to the extent Tenant desires to do
so, including its environmental condition. The taking of possession of the
Additional Premises by Tenant shall be conclusive evidence, as against Tenant,
that Tenant accepts the same in its then "AS IS" condition and that the
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Additional Premises is in good and satisfactory condition at the time such
possession was so taken subject to: (i) written punchlist items submitted to
Landlord prior to Tenant's occupancy of the Additional Premises and (ii) latent
defects in Landlord's Work which are reported to Landlord in writing within
thirty (30) days after the Effective Date. As Tenant's sole right and remedy,
and as Landlord's sole obligation, with respect to such punchlist items and
latent defects, Landlord shall, with reasonable diligence, cause such items to
be completed or corrected at its own expense; Landlord shall have no
responsibility, liability, duty to indemnify, defend or hold Tenant harmless
from any damages, losses, claims, liabilities, awards or actions related,
directly or indirectly to such items. For purposes of this Paragraph 3, latent
defects shall not include, among other things, any defects which were apparent
at the time the punchlist was delivered to Landlord. Notwithstanding the
foregoing, Landlord's obligation with respect to latent defects shall not apply
to equipment, materials or items specified by Tenant, but Landlord shall assign
to Tenant Landlord's interest in any warranty from a subcontractor regarding
such equipment or material after Tenant's written request for same. Tenant
acknowledges and agrees that other than providing the tenant improvement
allowance referred to in Section 2 of this Fourth Amendment, Landlord has no
obligation to construct or cause to be constructed any work or other tenant
improvements in connection with the Project, the Building, the Premises, the
Amendment Premises or the Additional Premises as a result of this Fourth
Amendment. Without limiting the generality of the foregoing, Tenant expressly
acknowledges that Landlord shall have no responsibility or obligation to perform
any work with respect to the shell, floor, frontage, walls, ceiling, lighting
fixtures, HVAC system, toilet room, utilities systems or otherwise with respect
to the Project, the Building, the Premises, the Amendment Premises or the
Additional Premises as a result of this Fourth Amendment. The foregoing shall
not affect Landlord's express obligations under the Lease, if any, to maintain
and repair the Premises.
4. Payment of Commission. In connection with this Fourth Amendment,
Tenant acknowledges that it has selected Xxxxxxx Xxxxxx as its broker. Landlord
has agreed to pay a brokerage commission to Xxxxxxx Xxxxxx in the amount of
$30,758, and Tenant shall pay Xxxxxxx Xxxxxx the excess of all fees owing to
Xxxxxxx Xxxxxx in respect of this Fourth Amendment in excess of such $30,758
payable by Landlord. In addition, in the event of a claim for broker's fee,
finder's fee, commission or other similar compensation in connection herewith
other than to Paragon Group or as set forth above, Tenant hereby agrees to
protect, defend and indemnify Landlord against and hold Landlord harmless from
any and all damages, liabilities, costs, expenses and losses (including,
without limitation, reasonable attorneys' fees and costs) which Landlord may
sustain or incur by reason of such claim. The provisions of this section shall
survive the termination of this Fourth Amendment.
5. Certain Provisions in Amended Lease. Paragraph 42 of the
Addendum to the Original Lease, Xxxxxxxxx 0, Xxxxxxxxx 3 and Paragraph 6 of the
Second Amendment, and Paragraph 3 of the Third
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Amendment are each hereby deleted in their entirety, and the Term of the
Amended Lease, including as to the Amendment Premises, shall expire on the date
determined pursuant to paragraph (k) and Paragraph 4 of the Lease Summary in
the Original Lease.
6. Compliance with Law. (a) Tenant acknowledges that the Americans
with Disabilities Act of 1990 and the Fair Housing Act of 1968 (collectively,
as amended and as supplemented by further laws from time to time, the "Acts")
imposes certain requirements upon the owners, lessees and operators of
commercial facilities and places of public accommodation, including, without
limitation, prohibitions on discrimination against any individual on the basis
of disability (which discrimination includes certain failures to design and
construct facilities for first occupancy that are readily accessible to and
usable by individuals with disabilities and certain failures, when making
alternations affecting the usability of a facility, to make the same in such a
manner that such altered portions are readily accessible to and usable by
individuals with disabilities). Accordingly Tenant agrees to take all proper
and necessary action to cause the Premises to be maintained, used and occupied
in compliance with the Acts and, further, to otherwise assume all
responsibility to ensure the Premises' continued compliance with all provisions
of the Acts throughout the Term, as extended pursuant to this Fourth Amendment.
(b) Without limiting its obligations under the Amended Lease, Tenant
covenants and agrees to comply with all laws, rules, regulations and guidelines
now or hereafter made applicable to the Premises by government or other public
authorities respecting the disposal of waste, trash, garbage and other matter
(liquid or solid), generated by Tenant, its employees, agents, contractors,
invitees, licensees, guests and visitors, the disposal of which is not otherwise
the express obligation of Landlord under the Amended Lease, including, but not
limited to, laws, rules, regulations and guidelines respecting recycling and
other forms of reclamation (all of which are herein collectively referred to as
"Waste Management Requirements"). Tenant covenants and agrees to comply with
all rules and regulations established by Landlord to enable Landlord from time
to time to comply with Waste Management Requirements applicable to Landlord (i)
as owner of the Premises and (ii) in performing Landlord's obligations under the
Lease, if any.
7. Waiver. No failure or delay by a party to insist upon the strict
performance of any term, condition or covenant of this Fourth Amendment, or to
exercise any right, power or remedy hereunder shall constitute a waiver of the
same or any other term of this Fourth Amendment or preclude such party from
enforcing or exercising the same or any such other term, conditions, covenant,
right, power or remedy at any later time.
8. California Law. This Fourth Amendment shall be construed and
governed by the laws of the State of California.
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9. Authority. This Fourth Amendment shall be binding upon and inure
to the benefit of the parties hereto, their respective heirs, legal
representatives, successors and assigns. Each party hereto and the persons
signing below warrant that the person signing below on such party's behalf is
authorized to do so and to bind such party to the terms of this Fourth
Amendment.
10. Attorneys' Fees and Costs. In the event of any action at law or in
equity between the parties hereto to enforce any of the provisions hereof, any
unsuccessful party to such litigation shall pay to the successful party all
costs and expenses, including actual attorneys' fees (including costs and
expenses incurred in connection with all appeals) incurred therein by such
successful party, and such costs, expenses and attorneys' fees may be included
in and as part of such judgment. A successful party shall be any party who is
entitled to recover his costs of suit, whether or not the suit proceeds to
final judgment.
11. Entire Agreement; No amendment. This Fourth Amendment constitutes
the entire agreement and understanding between the parties herein named with
respect to the subject of this Fourth Amendment and shall supersede all prior
written and oral agreements concerning the subject matter contained herein.
This Fourth Amendment may not be altered, amended, modified or otherwise
changed in any respect whatsoever except by a writing duly executed by
authorized representatives of the parties hereto. Each party acknowledges that
it has read this Fourth Amendment, fully understands all of this Fourth
Amendment's terms and conditions, and hereby executes this Fourth Amendment
freely, voluntarily and with full knowledge of its significance. This Fourth
Amendment is entered into by the undersigned parties freely and voluntarily and
with and upon advice of counsel.
12. Severability. If any provision of this Fourth Amendment or the
application thereof to any person or circumstances shall be invalid or
unenforceable to any extent, the remainder of this Fourth Amendment and the
application of such provision to other persons or circumstances, other than
those to which it is held invalid, shall not be affected thereby and shall be
enforced to the furthest extent permitted by law, provided that the invalidity
of such provision does not materially affect the benefits accruing to any party
hereto.
13. Counterparts. This Fourth Amendment may be executed in duplicates or
counterparts, or both, and such duplicates or counterparts together shall
constitute but one original of the Fourth Amendment. Each duplicate and
counterpart shall be equally admissible in evidence, and each original shall
fully bind each party who has executed it.
14. Agreement to Perform Necessary Acts. Each party agrees that upon
demand therefor, it shall promptly perform all further acts and execute,
acknowledge and deliver all further instructions, instruments and documents
which may be reasonably necessary or useful to carry out
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the provisions of this Fourth Amendment or to evidence, perfect or otherwise
effectuate the rights and remedies relating to this Fourth Amendment.
15. Captions and Headings. The titles or headings of the various
sections and paragraphs hereof are intended solely for convenience of reference
and are not intended and shall not be deemed to or in any way be used to
modify, explain or place any construction upon any of the provisions of this
Fourth Amendment.
IN WITNESS WHEREOF, the undersigned have duly executed this Fourth
Amendment as of the date first above written.
METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation
By /s/ [SIG]
----------------------------
Its Investment Officer
---------------------------
XXXX X. XXXXXXX COMPANY,
a Georgia corporation
By /s/ [SIG]
----------------------------
Its Senior Vice President
---------------------------
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EXHIBIT A -- Leased Premises
The crosshatched area represents leased premises, commonly known as 00000 Xxxx
Xxxxx Xxxxxxx, Xxxxx Xxxxx, XX. Leased premises is approximately 18,213
rentable square feet.
SAVI TECHNOLOGY CENTER
(Client to provide a fair and accurate description of artwork)
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EXHIBIT B
(Client to provide a fair and accurate description of artwork)
30
EXHIBIT B (Continued)
(Client to provide a fair and accurate description of artwork)
