EXHIBIT 10.19
LEASE
(FULL SERVICE)
"THIS LEASE is made between Lessor and Lessee named below as of the later
of the dates set forth under their respective signatures.
BASIC LEASE PROVISIONS
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1. Building Name: Xxxxxxx Business Center
Premises Address: 0000 Xx. Xxxxxxx Xxxxxxxxx #000, Xxxxxxxxx, XX 00000
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2. Rentable area: 931 S.F. Useable area S.F.
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3. Building Maintenance Percentage:
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4. Basic Annual Rent: $16,758.00 ($ per sq. ft.)
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5. Monthly Rental Installments: $1,396.50 ($ 1.50 per sq. ft.)
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6. Terms: 2 years and 1/2 months, to terminate with the lease of Suite 200
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7. Lease Commencement Date: 4/15/93
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8. Security Deposit: $1,396.50
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9. Broker(s): N/A
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10. Lease Occupancy Date: 4/15/93
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IN WITNESS WHEREOF, the parties hereto have executed this Lease, consisting
of the foregoing Basic Lease provisions and Articles 1 through 26 which follow,
as of the later of the dates below.
LESSOR: Xxxxxxx Business Center LESSEE:
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx Xxxxxxxx Xxxx
/s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
GUARANTOR:
DATED: DATED:
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ADDRESS: 0000 X. Xxxxxxx Xxxxxxxxx #000 ADDRESS:
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Xxxxxxxxx, XX. 00000
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MAIL: X.X. Xxx 0000, Xxxxxxxxx, XX. 00000
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TELEPHONE NO.: (000) 000-0000 TELEPHONE NO.:
TABLE OF CONTENTS
Article Page
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Base Lease Provisions........................ 1
Table of Contents............................ 2
1. Lease of Premises............................ 4
2. Term......................................... 4
3. Rent & Security Deposit...................... 4
4. Operating Expense Adjustment................. 6
5. Use.......................................... 8
6. Maintenance, Repairs and Alterations......... 8
7. Insurance: Indemnity......................... 10
8. Damage or Destruction........................ 11
9. Personal Property Taxes...................... 12
10. Utilities.................................... 12
11. Assignment and Subletting.................... 13
12. Defaults: Remedies........................... 13
13. Condemnation or Restriction on Use........... 15
14. Brokers...................................... 17
15. Lessor's Liability........................... 17
16. General Provisions........................... 18
16.1 Estoppel Certificate................ 18
16.2 Severability........................ 18
16.3 Time of Essence..................... 18
16.4 Captions............................ 18
16.5 Notices............................. 18
16.6 Waivers............................. 18
16.7 Holding Over........................ 18
16.8 Cumulative Remedies................. 18
16.9 Inurement; Choice of Law............ 18
16.10 Subordination....................... 18
16.11 Attorney's Fees..................... 19
16.12 Lessor's Access..................... 19
16.13 Corporate Authority................. 19
16.14 Rights of Others.................... 19
16.15 Safety & Health..................... 20
16.16 Surrender of Cancellation........... 20
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Article Page
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16.17 Entire Agreement.................... 20
16.18 Signs............................... 20
16.19 Interest on Past Due Obligations.... 20
16.20 Gender: Number...................... 20
16.21 Lease Not Subject to Levy........... 20
16.22 Quitclaim........................... 20
16.23 Confidentiality of Lease............ 20
16.24 Financial Statements................ 21
17. Construction.................................. 21
18. Parking....................................... 21
19. Consents...................................... 21
20. Guarantor..................................... 21
21. Quiet Possession.............................. 21
23. Security Measures............................. 22
24. Easements and C,C & R's....................... 22
25. Auctions...................................... 22
Rules and Regulations
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1. LEASE OF PREMISES
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Lessor hereby leases to Lessee and Lessee leases from Lessor for the
term, at the rental, and upon all conditions set forth in this Lease, those
certain premises (the "Premises") in that certain building (the "Building")
which address is North Parkway Calabasas, California, identified
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in Item 1 of the Basic Lease Provisions, together with non-exclusive use of any
common areas in the Building and of the parking areas adjoining the Building in
common with other tenants of the building, if any. The approximate location of
the building, Premises and associated parking is indicated on Exhibit "A" which
is attached hereto and incorporated hereto and incorporated herein by this
reference.
2. TERM
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2.1 Commencement of Term
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(a) The term of the Lease shall be as shown in Item 6 of the
Basic Lease Provisions, commencing on the Lease or such later date as may be
herein provided, unless sooner terminated pursuant to any provision hereof.
(b) Notwithstanding the foregoing, the term of this Lease shall
commence upon delivery of the possession of the Premises, and the date thereof
shall constitute the date of commencement of the term of this Lease. Delivery of
possession of the Premises shall occur upon written tender of same by Lessor.
(c) If delivery of possession occurs prior to the Lease
Commencement Date, the term of this Lease and all obligations of this Lease,
shall commence on such date of delivery of possession but the date of
termination shall not be advanced. Occupancy by Lessee for any purpose shall
constitute an acknowledgement that the Building and Premises have been
satisfactorily completed and Lessor shall have no further responsibility with
respect to construction except as herein expressly set forth. Lessee's execution
and delivery to Lessor prior to its occupancy of the Premises of a "Certificate
of Lessee's Acceptance of Occupancy" letter shall be deemed to be conclusive as
to the commencement of the term and Lessee's obligations under this Lease.
(d) The actual date of commencement (the "Commencement Date")
shall be confirmed by the parties by initialing the lower portion of the Basic
Lease Provisions, after insertion of the Commencement Date and expiration date
of the Lease, promptly following such commencement, but failure of Lessee to
acknowledge the Commencement Date as established pursuant to this Article shall
not affect any obligation of Lessee hereunder or Lessor's determination of the
Commencement Date pursuant to this Article 2.
2.2 Delay in Commencement. Notwithstanding the Lease Commencement
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Date, if for any reason Lessor cannot deliver possession of the Premises to
Lessee on or before said date, Lessor shall not be subject to any liability
therefor, nor shall such failure affect the validity of this Lease or the
obligations of Lessee hereunder or extend the term hereof, but in such case
Lessee shall not be obligated to pay rent until delivery of possession of the
Premises has occurred; provided, however, that if Lessor shall not have
delivered possession of the Premises within two (2) months after said Lease
Commencement Date, Lessor or Lessee may, at Lessee's option, by notice in
writing to Lessor within ten (10) days thereafter, cancel this Lease, in which
event the parties shall be discharged from all obligations hereunder.
3. RENT & SECURITY DEPOSIT
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3.1 Basic Rent. Lessee shall pay to Lessor as rent for the Premises
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a basic annual rent in the amount specified in Item 4 of the Basic Lease
Provisions, payable without deduction or offset, in equal monthly installments
in the amounts specified in Item 5 of the Basic Lease Provisions in advance, on
the first day of each month, in lawful money of the United States, to Lessor at
the address stated herein, or to such other persons or such other places as
Lessor may designate in writing. Rent for any period during the term hereof
which is for less than one month shall be a pro rata portion of the monthly
installment based upon a thirty (30) day month.
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3.2 SECURITY DEPOSIT
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Concurrently with Lessee's execution of this Lease, it has
deposited with Lessor the sum specified in Item 8 of the Basic Lease Provisions
as security of the faithful performance by lessee of all covenants and
conditions of this Lease. If Lessee shall breach or default in the performance
of any covenants or conditions of the Lease, including the payment of rent,
Lessor may use, apply or retain the whole or any part of such security deposit
for payment of any rent in default. If Lessor so uses or applies all or any
portion of said deposit, Lessee shall within three (3) days after written demand
therefor deposit cash with Lessor in an amount sufficient to restore said
deposit to the full amount herein above stated and Lessee's failure to do so
shall be a material breach of this lease. Should Lessee comply with all
covenants and conditions of this Lease, the Security deposit or any balance
thereof shall be returned to Lessee (or at the option of Lessor, to the last
assignee of Lessee's interest in this Lease) at the expiration of the term.
Lessee shall not be entitled to interest on the security deposit and Lessor
shall have the right to comingle said security deposit with other funds of
Lessor. Should Lessor sell its interest in the Premises, Lessor may deposit with
the purchaser thereof the then unexpended or unappropriated funds deposited by
Lessee and thereupon Lessor shall be discharged from any further liability for
such funds.
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5. USE
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5.1 The premises shall be used and occupied for general office
purposes relating to the conduct of business in a manner consistent and in
compliance with all applicable ordinances and other governmental requirements
affecting the Premises, and the Rules and Regulations attached hereto and all
additions to such Rules an Regulations as Lessor may from time to time
reasonably adopt for the safety, care and cleanliness of the premises or the
preservation of good order, and for no other purpose whatsoever without the
express written consent of Lessor, which consent shall be in the sole and
absolute discretion of Lessor. Lessor shall not be responsible to Lessee for
nonperformance of any said Rules and Regulations by any other tenant of the
Building.
5.2 Compliance with Law. Lessee shall, at Lessee's expense, comply
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promptly with all applicable statutes, ordinances, rules, regulations, orders
and requirements in effect during the term or any part of the term hereof
regulating the use by Lessee of the Premises. Lessee shall not use or permit the
use of the Premises in any manner that will tend to create waste or a nuisance
or, if there shall be more than one tenant of the Premises, which shall tend to
disturb such other tenants.
5.3 Insurance Cancellation. Notwithstanding the provisions of
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Paragraph 5.1 above, no use shall be made or permitted to be made of the
Premises nor acts done which will cause the cancellation of any insurance policy
covering said Premises or the Building, and if Lessee's use of the Premises
causes an increase in said insurance rates Lessee shall pay any such increases.
6. MAINTENANCE, REPAIRS AND ALTERATIONS
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6.1 Lessor's Obligations. Lessor shall during the term of this lease
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maintain, or cause to be maintained, in good order, condition and repair, the
roof and walls of the Building (excluding the interior surface thereof and
excluding windows entirely) and any common areas in the Building ("Building
Maintenance"), as well as all parking areas, driveways, sidewalks, private roads
or streets, landscaping and all other areas located within the site, other than
areas occupied by buildings (such nonbuilding areas being herein referred to as
"common areas" and the maintenance thereof being sometime herein referred to as
"common area maintenance"), all signs, plumbing, electrical and air conditioning
equipment on or adjacent to the Premises, whether interior or exterior to the
Building. Lessor responsible for windows, except for breakage due to Lessee's
negligence.
6.2 Lessee's Obligations. Lessee shall during the term of this lease
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keep in good order, condition and repair, the interior of the Premises and every
part thereof, including without limitation all windows and doors. Except in the
event of Lessor's negligence, Lessor shall incur no expense nor have any
obligation of any kind whatsoever in connection with maintenance of the interior
of the Premises, as defined above, and Lessee expressly waives the benefits of
any statute now or hereafter in effect which would otherwise afford Lessee the
right to make repairs at Lessor's expense or to terminate this Lease because of
Lessor's failure to keep the interior of the Premises in good order, condition
and repair. Notwithstanding the foregoing, Lessor shall be liable for
maintenance or repairs which are caused by Lessor's negligence.
6.3 Surrender. On the last day of the term hereof, or on any sooner
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termination, Lessee shall surrender the Premises to Lessor in good order and
condition, broom clean, ordinary wear and tear excepted. Lessee shall repair any
damage to the Premises occasioned by the removal of Lessee's trade fixtures,
furnishing and equipment, which repair shall include the patching and filling of
holes and repair of structural damage.
6.4 Alterations and Additions.
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(a) Lessee shall not, without Lessor's prior written consent,
make any alterations, improvements, additions, utility installations in or about
the Premises, except for nonstructural alterations not exceeding
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$500 in cost. As used in this Paragraph 6.4 the term "utility installations
shall include bus ducting, power panels, fluorescent fixtures, space heater
conduits and wiring. As a condition to giving such consent, Lessor may require
that Lessee agree to remove any such alterations, improvements, additions or
utility installations at the expiration of the term, and to restore the Premises
to their prior conditions.
(b) All alterations, improvements and additions to the premises shall
be performed by Lessor's contractor or by another licensed general contractor
mutually acceptable to Lessor and Lessee. Lessee shall pay when due, all claims
for labor or materials furnished to or for Lessee at or for use in the Premises,
which claims are or may be secured by any mechanics' or materialmen's lien
against the Premises or any interest therein, and Lessor shall have the right to
post notices of non-responsibility in or on the Premises as provided by law.
(c) Unless Lessor requires their removal pursuant to Paragraph 6.4 (a)
hereof, all alterations, improvements and additions which may be made on the
Premises shall become the property of Lessor and remain upon and be surrendered
with the Premises at the expiration of the term.
(d) If Lessor, in Lessor's sole discretion, should need or desire to
do any alteration or remodeling in any space next to, above, or below premises,
then Lessor shall have the right to enter into premises to do any and all work
needed, desired or wanted in such adjacent space. Lessor shall be required to
give Lessee twenty-four (24) hour notice and if such work should disrupt
Lessee's business then Lessor shall do said work after normal business hours.
Lessee's premises shall be left in good, clean order and repair.
6.5 Lessor's Rights. If Lessee fails to perform Lessee's obligations under
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this Article 6, Lessor may at its option (but shall not be required to) enter
upon the Premises after fifteen (15) days' prior written notice to Lessee, and
put the same in good order, condition and repair, and the cost thereof together
with interest thereon at the rate of ten percent (10%) per annum shall become
due and payable as additional rent to Lessor together with Lessee's next rental
installment.
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7. INSURANCE: INDEMNITY
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7.1 Liability Insurance. Lessee shall, at Lessee's expense, obtain and
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keep in force during the term of this lease comprehensive public liability
insurance insuring Lessor and Lessee against any liability arising out of the
ownership, use, occupancy or maintenance of the Premises, the Building and all
common areas. Such insurance shall be in the amount of not less than $1,000,000
combined single limit. The limits of said insurance shall not, however, limit
the liability of Lessee hereunder.
7.2 Property Insurance. Lessor shall obtain and keep in force during the
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term of this Lease a policy or policies of insurance covering loss or damage to
the Building, in the amount of the full replacement value thereof against all
perils, included within the classification of fire, extended coverage,
vandalism, malicious mischief, special extended perils (all risk). Said
insurance shall provide for payment of loss thereunder to Lessor or to the
holder of a first mortgage or deed of trust on the Premises as their interests
may appear. Lessor shall obtain and keep in force during the term of this lease
a policy of rental value insurance with an extended period of Indemnity
Endorsement (up to 10 months), with loss payable to Lessor, which insurance
shall also cover all real estate taxes, real estate brokers fees, and insurance
costs for said period. Additional insurance shall include but not be limited to,
a stipulated value or agreed amount endorsement deleting the co-insurance
provision of the policy, an Increased Cost of Construction Endorsement, a
Contingent Liability from Operations to Building Laws Endorsement Demolition and
Increased Time to Rebuild, a Cost of Inventory Appraisal and Adjustment
Endorsement, and an Automatic Increase in Insurance Endorsement. Lessor will not
insure Lessees fixtures, equipment, or supplies.
7.3 Waiver of Subrogation. Notwithstanding any contrary provision of this
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Lease, Lessee and Lessor each hereby waive any and all rights of recovery
against the other, or against the officers, employees agents and representatives
of the other, for loss of or damage to such waiving party or its property or the
property of others under its control to the extent that such loss or damage is
insured against under any insurance policy in force at the time of such loss or
damage. The insuring party shall, upon obtaining the policies of insurance
required hereunder, give notice to the insurance carrier or carriers that the
foregoing mutual waiver of subrogation is contained in this Lease.
7.4 Indemnity. Lessee shall indemnify and hold harmless Lessor from and
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against any and all claims arising from Lessee's use of the Premises, or from
the conduct of Lessee's business or from any activity, work, or things done,
permitted or suffered by Lessee in or about the Premises or elsewhere and shall
further indemnify and hold harmless Lessor from and against any and all claims
arising from any breach or default in the performance of any obligation on
Lessee's part to be performed under the terms of this Lease, arising from any
negligence of the Lessee, or any of Lessee's agents, contractors, or employees,
and from and against all costs, attorney's fees, expenses and liabilities
incurred in the defense of any such claim or any action or proceeding brought
thereon; and in case any action or proceeding is brought against Lessor by
reason of any such claim, Lessee upon notice from Lessor shall defend the same
at Lessee's expense by counsel satisfactory to Lessor. Lessee, as a material
part of the consideration to Lessor, hereby assumes all risk of damage to
property or injury to persons, in, upon, or about the Premises arising from any
cause and Lessee hereby waives all claims in respect thereof against Lessor.
Notwithstanding the foregoing Lessee shall not be responsible for any claims
which are the sole and proximate result of Lessor's negligence.
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7.5 Exemption of Lessor from Liability. Lessee hereby agrees that Lessor
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shall not be liable for injury to Lessee's business or any loss of income
therefrom or for damage to the goods, wares, merchandise or other property of
Lessee, Lessee's employees, invitee customers, or any other person in or about
the Premises, nor shall Lessor be liable for injury to the person of Lessee,
Lessee's employees agents or contractors, whether such damage or injury is
caused by or results from fire, steam, electricity, gas, water or rain, or from
the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixture or from any other
cause, whether the said damage or injury results from conditions arising upon
the Premises or upon other portions of the building of which the Premises are a
part, or from other cause or places, and regardless whether the cause of such
damage or injury or the means of repairing the same is inaccessible. Lessor
shall be liable for injury to Lessee's business or loss of income or damage to
the goods, wares, merchandise or other property of Lessee which arises as the
sole and proximate result of Lessor's Gross negligence.
7.6 Insurance Policies. Insurance required hereunder shall be in companies
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holding a "General Policyholders Rating" of at least B plus, or such other
rating as may be required by a lender having a lien on the Premises, as set
forth in the most current issue of "Best's Insurance Guide". The insuring party
shall deliver to the other party copies of policies of such insurance or
certificates evidencing the existence and amounts of such modification except
after thirty (30) days' prior written notice to Lessor. If Lessee is the
insuring party Lessee shall, at least thirty (30) days prior to the expiration
of such policies, furnish Lessor with renewals or "binders" thereof, or Lessor
may order such insurance and charge the cost thereof to Lessee, which amount
shall be payable by Lessee upon demand.
8. DAMAGE OR DESTRUCTION See Item #26.
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8.1 Partial Damage - Insured. Subject to the provisions of Paragraph 8.3
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hereof, if the Premises are damaged and such damage was caused by a casualty
covered under an insurance policy required to be maintained pursuant to
Paragraph 7.2 hereof, Lessor shall at Lessor's expense repair such damage as
soon as reasonably possible and this lease shall continue in full force and
effect.
8.2 Partial Damage - Uninsured. Subject to the provisions of Paragraph
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8.3, if at any time during the term hereof the Premises are damaged except by a
negligent or willful act of Lessee, and such damage was caused by casualty not
covered under an insurance policy required to be maintained pursuant to
Paragraph 7.2, Lessor may at Lessor's option either (i) repair such damage as
soon as reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or (ii) give written notice to Lessee within
thirty (30) days after the date of the occurrence of such damage of Lessor's
intention to cancel and terminate this Lease as of the date of the occurrence of
such damage. In the event Lessor elects to give such notice of Lessor's
intention to cancel and terminate this Lease, Lessee shall have the right within
ten (10) days after the receipt of such notice to give written notice to Lessor
of Lessee's intention to repair such damage at Lessee's expense, without
reimbursement from Lessor, in which event this Lease shall continue in full
force and effect, and Lessee shall proceed to make such repairs as soon as
reasonably possible. If Lessee does not give such notice within such ten (10)
day period this Lease shall be cancelled and terminated as of the date of the
occurrence of such damage.
8.3 Abatement of Rent: Lessee's Remedies
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(a) If the Premises are partially destroyed or damaged and Lessor or
Lessee repairs or restores them pursuant to the provisions of this Article, the
rent payable under Article 3 for the period during which such damage, repair or
restoration continues shall be abated in proportion to the degree to which
lessee's use of the Premises is impaired. Except for abatement of rent, if any,
Lessee shall have no claim against Lessor for any damage suffered by reason of
any such damage, destruction, repair or restoration.
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(b) If Lessor shall be obligated to repair or restore the Premises
under the provisions of this Article 8 and shall not commence such repair or
restoration within 90 days after such obligation shall accrue, subject to an
extension of up to another 90 days for delays beyond the reasonable control of
Lessor, Lessee may at Lessee's option:
(1) cancel and terminate this lease by giving Lessor written notice of
Lessee's election to do so at any time prior to the commencement of such repair
or restoration. In such event this Lease shall terminate as of the date of such
notice. Any abatement in rent shall be computed as provided in Paragraph 8.3 (a)
hereof.
or
(2) make such repairs or restoration and deduct the cost of such
repairs or restoration from the rent due under Article 3 hereof.
8.4 Total Destruction. If at any time during the term hereof the Premises
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are totally destroyed from any cause whether or not covered by the insurance
required to be maintained by Lessor pursuant to Article 7.2 (including any total
destruction required by any authorized public authority) this Lease shall
automatically termite as of the date of such total destruction. For purposes of
this Paragraph, total destruction of the Building shall be damage or destruction
the cost of repair of which shall, in the written opinion of a registered
Architect or engineer appointed by Lessor, exceed fifty percent (50%) of the
then replacement value of the Building and shall not require that the Premises
be totally or partially destroyed or damaged.
8.5 Insurance Proceeds Upon Termination. If this Lease is terminated
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pursuant to any right given Lessee or Lessor to do so under this Article 8, all
insurance proceeds payable with respect to the damage giving rise to such right
of termination shall be paid to Lessor and any encumbrance of the Premises, as
their interests may appear, except that Lessee will be entitled to the proceeds
of insurance on its leasehold improvements & personal property.
8.6 Restoration. Lessor's obligation to restore shall not include the
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restoration or replacement of Lessee's trade fixtures, equipment, merchandise or
any improvements or alterations made by Lessee to the Premises.
9. PERSONAL PROPERTY TAXES
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Lessee shall pay prior to delinquency all taxes assessed against and levied
upon trade fixtures, furnishings, equipment and all other personal property of
Lessee contained in the Premises or elsewhere. When practicable, Lessee shall
cause said trade fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of Lessor.
10. UTILITIES
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Lessor shall maintain and keep lighted all common areas, including but not
limited to, parking areas, landscaping area, sidewalks, entry and stairways.
Lessor shall furnish to premises separate electrical meters. Lessor shall be
responsible for all applications for electrical service, any and all deposits or
fees for electrical service, and all premises electrical useage bills, fees or
charges. Lessor shall furnish water to the premises. Lessor shall furnish
janitorial service to the premises, and such shall be the responsibility of the
Lessee. Lessor shall not be liable for and Lessee shall not be entitled to, any
reduction of rental by reason of Lessor's failure to furnish any of the
foregoing when such failure is caused by accident, breakage, repairs, strikes,
lockouts or other labor disturbances, or labor disputes of any character, or by
any other cause, similar or dissimilar, beyond the reasonable control of Lessor.
Lessor shall not be liable under any circumstances for a loss of or injury to
property, however occurring, through or in connection with or incidental to
failure to furnish any of the foregoing. If lessee shall require water in excess
of that usually furnished or supplied for the use of the premises as general
office space, Lessee shall first procure the written consent of Lessor which
Lessor may refuse, to the use thereof and Lessor may cause a water meter to be
installed in the premises, so as to measure the amount of water consumed for any
such use. The cost of any such meters and of installation, maintenance and
repair thereof shall be paid for by Lessee and Lessee agrees to pay to Lessor
promptly upon demand therefor by lessor for all such water consumed as shown by
said meters, at the rates charged for such services by the local public utility
furnishing the same. Lessee has control of all air conditioning to the suite.
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11. ASSIGNMENT AND SUBLETTING See Item #27
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11.1 Lessee shall not voluntarily or by operation of law sublet, assign,
transfer, mortgage or otherwise encumber, or grant concessions, licenses or
franchises with respect to, all of any part of Lessee's interest this Lease or
the Premises without the prior written consent of Lessor. If Lessee desires at
any time to assign this Lease or sublet the Premises or any portion thereof, it
shall first notify Lessor of its desire to do so and shall submit in writing to
Lessor (i) the name of the proposed subtenant or assigned, (ii) the nature of
the proposed subtenant's or assignee's business to be carried on in the
Premises; (iii) the terms and provisions of the proposed sublease or assignment.
Lessor may, as a condition to granting such consent, require that the obligation
of lessee hereunder be guaranteed by the parent or controlling corporation of
any assignee which is a subsidiary or affiliate of another corporation. Any
sublease, license, concession franchise or other permission to use the premises
made with consent of Lessor shall be expressly subject and subordinate to all
applicable terms and conditions of this Lease. Any purported or attempted
assignments, transfer, mortgage, encumbrance, subletting, license, concession,
franchise or other permission to use the Premises, contrary to the provisions of
this paragraph shall be void, and, at the option of Lessor, shall terminate this
Lease.
11.2 If Lessee is a corporation, any transfer of its stock, or any
disolution, merger or consolidation, which results in a change in the control of
Lessee from the person or persons owning a majority of its voting stock
immediately prior thereto or the sale or other transfer of all or substantially
all of the assets of Lessee, shall constitute an assignment of Lessee's interest
in this Lease within the meaning of this Article 11 and the provision requiring
consent contained herein. Lessor may require as a condition to giving such
consent that the new controlling person(s) immediately execute a guaranty of
this Lease.
11.3 No subletting, assignment, license, concession, franchise or other
permission to use the Premises shall relieve Lessee of its obligations to pay
rent or to perform all of the other obligations to be performed by Lessee
hereunder. The acceptance of rent by Lessor from any other person shall not be
deemed to be a waiver by Lessor of any provision of this Lease.
12. DEFAULTS; REMEDIES
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12.1 Default by Lessee. The occurrence of any one or more of the following
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events shall constitute a material default of this Lease by Lessee.
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure of Lessee to make any payment of rent or any other
payment required to be made by Lessee hereunder as and when due, where such
failure shall continue for a period of ten (10) days after written notice
thereof from Lessor to Lessee; provided, however, that any such notice shall be
in lieu of, and not in addition to, any notice required under California Code of
Civil Procedure Section 1161.
(c) The failure by Lessee to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Lessee,
other than as described in Paragraph 12.1 (b) hereof, where such failure shall
continue for a period of thirty (30) days after written notice thereof from
Lessor to Lessee; provided, however, that any such notice shall be in lieu of,
and not in addition to, any notice required under California Code of Civil
Procedure Section 1161; provided further, that if the nature of Lessee's default
is such that more than 30 days are reasonably required for the cure, then Lessee
shall not be deemed to be in default if Lessee commenced such cure within said
30 day period and thereafter diligently prosecutes such cure to completion.
-11-
(d) The making by Lessee of any general assignment, or general
arrangement for the benefit of creditors; the filing by or against Lessee of a
petition to have Lessee adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of a
petiton filed against Lessee, the same is dismissed within 60 days); the
appointment of a trustee or receiver to take possession of substantially all of
the Lessee's assets located at the Premises, or of Lessee's interest in this
Lease, where possession is not restored to Lessee within 30 days; or the
attachment, execution or other judicial seizure of substantially all of Lessee's
assets located at the Premises or of Lessee's interest in this Lease, where such
seizure is not discharged within thirty days.
(e) The discovery by Lessor that any financial statement given to
Lessor by Lessee, and assignee of Lessee, any subtennant of Lessee, any
successor in interest of Lessee or any guarantor of Lessee's obligation
hereunder, and any of them, was materially false.
12.2 Remedies for Default of Lessee. In the event of any material default
------------------------------
by Lessee as defined in Paragraph 12.1 hereof, Lessor may at any time
thereafter, upon notice and demand and without limiting Lessor in the exercise
of any other right or remedy which lessor may have by reason of such default or
breach:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Lessor. In such event Lessor
shall be entitled to recover from Lessee:
(1) The worth at the time of award of the unpaid rent which has been
earned at the time of termination;
(2) The worth at the time of award of the amount by which the unpaid
rent which would have been earned after termination until the time of award
exceeds the amount of such rental loss that Lessee proves could have been
reasonably avoided.
(3) The worth at the time of award of the amount by which the unpaid
rent for the balance of the term after the time of award exceeds the amount of
such rental loss that Lessee proves could be reasonably avoided; and
(4) Any other amount necessary to compensate the Lessor for all the
detriment proximately caused by Lessee's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom, including, but not limited to, the cost of recovering
possession of the Premises, Real Estate commissions actually paid, reasonable
attorney's fees, and any other reasonable cost.
The "worth at the time of award" of the amounts referred to in subparagraphs (1)
and (2) above shall be computed by allowing interest at ten percent (10%) per
annum. The worth at the time of award of the amount referred to in subparagraph
(3) above shall be computed by discounting such amount at one (1) percentage
point above the discount rate of the Federal Reserve Bank of San Francisco at
the time of award.
(b) Pursue any other remedy now or hereafter available to Lessor under
the laws or judicial decisions of the State of California. Unpaid installments
of rent and other unpaid monetary obligations of Lessee under the terms of this
lease shall bear interest from the date due at maximum rate then allowable by
law.
(c) Maintain Lessee's right to possession in which case this lease
shall continue in effect whether or not Lessee shall has abandoned the premises.
In such an event, Lessor shall be entitled to enforce all of Lessor's rights and
remedies under this lease.
-12-
12.3 Default by Lessor. The failure of Lessor to perform any obligation
-----------------
of Lessor under this Lease shall constitute a material default and breach of
this Lease by Lessor. Notwithstanding the foregoing, Lessor shall not be in
default unless Lessor fails to perform obligations required of Lessor within a
reasonable time, but in no event later than thirty (30) days after written
notice by Lessee to Lessor and to the holder of any first mortgage or deed of
trust covering the Premises whose names and addresses shall have theretofore
been furnished to Lessee in writing, specifying wherein Lessor has failed to
perform such obligations; provided, however, that if the nature of Lessor's
obligations is such that more than thirty (30) days are required for performance
then Lessor shall not be in default if Lessor commences performance within such
30-day period and thereafter diligently prosecutes the same to completion. In
the event of any such default by Lessor, Lessee may pursue any remedy now or
hereafter available to Lessee under the laws or judicial decisions of the State
of California, except that Lessee shall not have the right to terminate this
Lease except as expressly provided in this Lease.
12.4 Late Charges. Lessee hereby acknowledges that the late payment by
------------
Lessee to Lessor of rent and other sums due hereunder will cause Lessor to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to
processing and accounting charges, and late charges which may be imposed on
Lessor by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Lessee shall
not be received by Lessor or Lessor's designee within ten (10) days after
payment is due, then Lessee shall pay to Lessor a late charge equal to ten
percent (10%) of such overdue amount. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the cost Lessor will incur
by reason of late payment by Lessee. Acceptance of such late charge by Lessor
shall in no event constitute a waiver of Lessee's default with respect to such
overdue amount, nor prevent Lessor from exercising any of the other rights and
remedies granted hereunder.
13. CONDEMNATION OR RESTRICTION ON USE
----------------------------------
13.1 Termination of Lease on Total Taking. In the event the entire
------------------------------------
Premises or leasehold interest shall be appropriated or taken under the power of
eminent domain by any public or quasi-public authority for any period of time,
this Lease shall terminate as of the date of such taking.
13.2 Lessee's Election to Terminate on Partial Taking. In the event more
------------------------------------------------
than ten percent (10%) of the floor area of the Premises or more than thirty
percent (30%) of the adjacent parking facility is taken under the power of
eminent domain by any public or quasi-public authority, and if by reason of any
such appropriation or taking, regardless of the amount so taken, the remainder
of the Premises or parking facility is not reasonably suitable for the operation
of Lessee's business taking into account Lessor's obligation to restore under
Paragraph 13.4, Lessee shall have the right to terminate this Lease as of the
date of such taking upon giving to Lessor notice in writing of such election
within one hundred twenty (120) days after such appropriation or taking.
Notwithstanding the foregoing, if the appropriation or taking is only of the
associated parking area Lessee shall not have a right to terminate this Lease
and rent shall not xxxxx if Lessor promptly provides substitute parking
reasonably accessible to the building of which the Premises are a part.
13.3 Each Party Entitled to Award. If this Lease is terminated in the
----------------------------
manner provided in Paragraph 13.1 or 13.2 hereof, each party shall be entitled
to any award made to it in such proceedings; Lessee shall specifically be
entitled to that portion of any award attributable to unamortized expenditures
made by Lessee for improvements to the Premises. The unamortized portion of the
Lessee's expenditures for improving the Premises shall be determined by
multiplying such expenditures by a faction, the numerator of which shall be the
number of years of the term of this Lease which shall not have expired at the
time of such appropriation or taking, and the denominator of which shall be the
number of years of the term of this Lease which shall not have expired at the
time of improving the Premises. In no event shall options to renew or extend be
taken into consideration in determining the payment to be made to the Lessee.
Lessee's right to receive compensation or damages for its fixtures and personal
property shall not be affected in any manner thereby. The rent for the last
month of Lessee's occupancy shall be prorated and Lessor agrees to refund to
Lessee any unearned rent paid in advance.
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13.4 No Termination - Repairs and Rent Reduction. In the event of taking
-------------------------------------------
that does not result in a termination of this Lease under Paragraph 13.1 or 13.2
hereof, then Lessor shall, at Lessor's cost and expense, restore the Premises or
the parking facility remaining to a complete unit of the quality and character
as existed prior to such appropriation or taking, and therefore the rent
provided for in Article 3 hereof shall be reduced in the ratio that the floor
area of the Premises taken bears to the floor area of the Premises before such
taking, and Lessor shall be entitled to receive the total award XXX compensation
in such proceedings, including any amount awarded to Lessee; provided, however,
that Lessee shall receive and retain any amount awarded to Lessee as
compensation for the taking of fixtures and equipment owned by Lessee or for the
expense of removal or repair of same.
13.5 Notice of Condemnation. Lessor agrees immediately after it receives
----------------------
notice of the intention of any such authority to appropriate or take to give to
Lessee notice in writing of such fact.
13.6 Voluntary Sale as Taking. A voluntary sale by Lessor to any public
------------------------
body or agency having the power of eminent domain, either under threat of
condemnation or while condemnation proceedings are pending, shall be deemed to
be a taking under the power of eminent domain for the purposes of this Article
13.
-14-
14. BROKERS
-------
Lessor acknowledges its obligation to pay a single commission to the
broker(s) specified in Item 9 of the Basic Lease Provisions, if any. Lessee
represents and warrants that it has neither incurred nor is aware of any other
brokers', finders' or similar fee in connection with the origin, negotiation,
execution or performance of this Lease and agrees to indemnify and hold harmless
Lessor from any loss, liability, damage, cost or expense incurred by reason of
breach of this representation.
15. LESSOR'S LIABILITY
------------------
15.1 The term "Lessor" as used herein shall mean only the owner or owners
at the time in question of the fee title or a Lessee's interest in a ground
lease of the Premises. In the event of any transfer of such title or interest,
Lessor herein named (and in case of any subsequent transfers the then grantor)
shall be relieved from and after the date of such transfer of all liability as
respects Lessor's obligations thereafter to be performed, provided that any
funds in the hands of Lessor or the then grantor at the time of such transfer,
in which Lessee has an interest, then shall be delivered to the grantee. The
obligations contained in this Lease to be performed by Lessor, shall, subject as
aforesaid, be binding on Lessor's successors and assigns only during their
respective periods of ownership.
15.2 In consideration of the benefits accruing hereunder, Lessee, its
successors and assigns covenant and agree that, in the event of any actual or
alleged failure, breach or default hereunder by the initial Lessor:
(a) Lessee's sole and exclusive remedy for any damages from Lessor
shall be against the property that this lease covers, commenly known as 0000
Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000.
(b) No judgment will be taken against any co-owner; except against the
premises property.
(c) Any judgment taken against any co-owner - other than the premises
property, may be vacated and set aside at any time nuo pro tuno;
(d) No writ of execution will ever be levied against the assets of any
co-owner; except against the premises property.
-15-
16. GENERAL PROVISIONS
------------------
16.1 Estoppel Certificate
--------------------
(a) Lessee shall at any time upon not less than ten (10) days prior
written notice from Lessor execute, acknowledge and deliver to Lessor a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that 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, and (ii)
acknowledging that there are not, to Lessee's knowledge, any uncured defaults on
the part of Lessor hereunder, or specifying such defaults if any are claimed.
Any such statement may be conclusively relied upon by and prospective purchaser
or encumbrancer of the Premises.
(b) Lessee's failure to deliver such statements within such time shall
be conclusive upon Lessee (i) that this Lease is in full force and effect,
without modification except as may be represented by Lessor, (ii) that there are
no uncured defaults in Lessor's performance, and (iii) that not more than one
month's rent has been paid in advance.
(c) If Lessor desires to finance or refinance the Premises or any part
thereof, Lessee hereby agrees to deliver to any lender designated by Lessor such
financial statements of Lessee as may be reasonably required by such lender. All
such financial statements shall be received by Lessor in confidence and shall be
used only for the purposes herein set forth.
16.2 Severability. The invalidity of any provision of this Lease as
------------
determined by a court of competent jurisdiction shall in no way affect the
validity of any other provision hereof.
16.3 Time of Essence. Time is of the essence in the performance of all
---------------
terms and conditions of this Lease.
16.4 Captions. Article and paragraph captions have been solely as a matter
--------
of convenience and such captions in no way define or limit the scope or intent
of any provisions of this Lease.
16.5 Notices. Any notice required or permitted to be given hereunder shall
-------
be in writing and may be served personally or by regular mail addressed to
Lessor and Lessee respectively at the addresses set forth before their
signatures in Item 11 of the Basic Lease Provisions, or such other addresses as
may from time to time be designated in writing by Lessor or Lessee by notice
pursuant hereto.
16.6 Waiver. No waiver of any provisions hereof shall be deemed a waiver
------
of any other provision hereof. Consent to or approval of any act by or of the
parties hereto shall not be deemed to render unnecessary the obtaining of such
party's consent to or approval of any subsequent act. The acceptance of rent
hereunder by Lessor shall not be a wavier of any preceding breach by Lessee of
any provision hereof, other than the failure of Lessee to pay the particular
rent so accepted, regardless of Lessor's knowledge of such preceding breach at
the time of acceptance of such rent.
16.7 Holding Over. If Lessee remains in possession of the Premises or any
------------
part thereof after the expiration of the term hereof without the express written
consent of Lessor, such occupancy shall be tenancy from month to month at a
rental in the amount of the last monthly rental.
16.8 Cumulative Remedies. No remedy or election hereunder shall be deemed
-------------------
exclusive but shall, whatever possible, be cumulative with all other remedies at
law or in equity.
16.9 Inurement; Choice of Law. Subject to any provision hereof restricting
------------------------
assignment or subletting by Lessee and subject to the provisions of Article 15
hereof, the terms and conditions contained in this Lease shall bind the parties,
their personal representative, successors and assigns. This Lease shall be
governed by the laws of the State of California.
-16-
16.10 Subordination.
-------------
(a) This Lease, at Lessor's option, shall be subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation or security now or
herafter placed upon the real property of which the Premises are a part and to
any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Lessee's right to quiet possession of the
Premises shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee or ground lessor shall elect to have this Lease prior to the
lien of its mortgage, deed of trust or ground lease, and shall give written
notice thereof to Lessee, this Lease shall be deemed prior to such mortgage,
deed of trust, or ground lease, whether this Lease is dated prior or subsequent
to the date of said mortgage, deed of trust or ground lease or the date of
recording thereof.
(b) Lessee agrees to execute any documents required to effectuate an
attornment, a subordination or to make this Lease prior to the lien of any
mortgage, deed of trust or ground lease, as the case may be. Lessee's failure to
execute such documents within 10 days after written demand shall constitute a
material default by Lessee herunder, or, at Lessor's option Lessor shall execute
such documents on behalf of Lessee as Lessee's attorney-in-fact. Lessee does
hereby make, constitute and irrevocable appoint Lessor as Lessee's attorney-in-
fact and in Lessee's name, place and stead, to execute such documents in
accordance with this paragraph 16.10 (b). Lessee's obligation to execute any
documents is subject to the documents containing a non-disturbance clause as is
stipulated in 16.10a.
16.11 Attorney's Fees. If either party hereto brings an action to enforce
---------------
the terms hereof or declare rights hereunder, the prevailing party in any such
action, on trial or appeal, shall be entitled to reasonable costs and attorney's
fees to be paid by the losing party. For purposes of this provision, in any
action or proceedings instituted by Lessor based upon any default or alleged
default by Lessee hereunder, Lessor shall be deemed the prevailing party if (a)
judgement is entered in favor of Lessor or (b) prior to trial or judgment Lessee
shall pay all or any portion of the rent and charges claimed by Lessor,
eliminate the condition(s), cease the act(s) or otherwise cure the omission(s)
claimed by Lessor to constitute a default by Lessee hereunder.
16.12 Lessor's Access. Lessor and Lessor's agents shall have the right to
---------------
enter the Premises at reasonable times for the purpose of inspecting the same,
showing the same to prospective purchasers, or lenders, and making such
alterations, repairs, improvements or additions to the Premises or to the
building of which they are a part as Lessor may deem necessary or desirable.
Lessor may at any time place on or about the Premises any ordinary "For Sale"
signs and Lessor may at any time during the last one hundred eighty (180) days
of the term hereof place on or about the Premises any ordinary "For Sale," "For
Lease" or similar signs all without rebate of rent or liability to Lessee.
16.13 Corporate Authority. If Lessee is a corporation, each individual
-------------------
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation, in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the By-Laws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. If Lessee is a corporation, Lessee shall, within thirty (30)
days after execution of this Lease, deliver to Lessor a certified copy of a
resolution of the Board of Directors of said corporation authorizing or
ratifying the execution of this Lease.
16.14 Rights of Others. Except as otherwise provided herein, nothing
----------------
expressed or implied is intended, or shall be construed, to confer upon or grant
any person any rights or remedies under or by reason of any term or condition
contained in this Lease.
-17-
16.15 Safety and Health. Lessee covenants at all times during the term of
-----------------
the Lease to comply with the requirements of the Occupational Safety and Health
Act of 1970, 29 U.S.C. Section 651 et seq and any analogous legislation in
California (collectively, the "Act"), to the extent that the applies to the
Premises and any activities thereon and without limiting the generality of the
foregoing, Lessee covenants to maintain all working areas, all machinery,
structures, electrical facilities and the like upon the Premises in such a
condition that fully complies with the requirements of the Act, including such
requirements as would be applicable with respect to agents, employees or
contractors of Lessor who may from time to time be present upon the Premises,
and Lessee agrees to indemnify and hold harmless Lessor from a liability, claims
or damages arising as a result of a breach of the foregoing covenant and from
all costs, expenses and charges arising therefrom including without limitation,
attorney's fees and court costs incurred by Lessor in connection therewith,
which indemnity shall survive the expiration or termination of this Lease.
16.16 Surrender or Cancellation. The voluntary or other surrender of this
-------------------------
Lease by Lessee, or a mutual cancellation thereof, shall not work a merger, and
shall terminate all or any existing subleases, unless Lessor elects to treat
such surrender or cancellation as an assignment to Landlord of any or all of
such subleases.
16.17 Entire Agreement. This Lease covers in full each and every agreement
----------------
of every kind or nature whatsoever between the parties hereto concerning the
Premises and the Building, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. Lessor has made no representations
or promises whatsovever with respect to the Premises or the Building, except
those contained herein; and no other person, firm or corporation has at any time
had any authority from Lessor to make any representations or promises on behalf
of Lessor, and Lessee expressly agrees that if any such representations or
promises have been made by others, Lessee hereby waives all right to rely
thereon. No verbal agreement or implied covenant shall be held to vary the
provisions hereof, any statute, law or custom to the contrary notwithstanding.
16.18 Signs. Lessee shall not install any signs on the exterior of the
-----
Premises or Building, or any free standing signs without the prior written
approval of Lessor. All such approved signs shall be installed and removed at
Lessee's sole cost and expense.
16.19 Interest on Past Due Obligations. Any amount due from Lessee to
--------------------------------
Lessor hereunder which is not paid when due shall bear interest at ten percent
(10%) per annum from the date due until paid, but the payment of such interest
shall not excuse or cure any default by Lessee.
16.20 Gender; Number. Whenever the context of this Lease requires the
--------------
masculine gender includes the feminine or neuter, the singular number includes
the plural.
16.21 Lease Not Subject to Levy. This Lease and the interest of Lessee
-------------------------
hereunder shall not be subject to garnishment or sale under execution of any
action or proceeding which may be brought against or by Lessee without the
written consent of Lessor.
16.22 Quitclaim. At the expiration or earlier termination of this Lease,
---------
Lessee shall execute, acknowledge and deliver to Lessor, within ten (10) days
after written demand from Lessor a quitclaim deed or other document reasonably
required by any reputable title company to remove the cloud of this Lease from
the title of the real property subject to Lease.
-18-
16.24 Financial Statements. During term of Lease and any extension
--------------------
thereto, tenant shall produce current financial statements within twenty (20)
days of written notification from Lessor.
17. CONSTRUCTION.
------------
17.1 Lessor shall at its expense cause the construction of tenant
improvements in the Premises in accordance with the attached Plan which has been
initialed by Lessor and Lessee concurrently with the execution of this Lease and
which is incorporated herein by this reference. No changes shall be made in the
initially approved plans and specifications without the prior written approval
of Lessor and lessee, and all additional expenses incurred by Lessor with
respect to any changes (except changes requested by Lessor) shall be reimbursed
to Lessor by Lessee upon demand.
17.2 Lessor shall at its expense promptly correct all items not conforming
with the plans and specifications of which Lessor is notified by Lessee in
writing within sixty (60) days after Lessee takes possession of the Premises.
17.3 Lessor warrants the Building and tenant improvements installed in the
Premises by lessor against any defects in materials and workmanship of which
Lessor is notified by Lessee in writing within one (1) year after date of
completion of the work in question. Lessor further warrants that the
construction of the Building and tenant improvements will, upon completion,
comply with all applicable statutes, ordinances, rules, regulations, orders and
requirements of governmental authorities in effect as of the commencement of the
lease term.
18. PARKING See Item #29.
-------
During the term of this Lease, Lessee shall have the right in common with
other lessees of the Building (if any) to use the parking area subject to such
rules and regulations as may be established from time to time by Lessor for the
effective use of said parking area. Said rules and regulations may include, but
shall not be limited to, such items as: designation of specific areas for use by
invitees of Lessee and Lessor; hours during which said parking shall be open for
use; use of a parking attendant; and such other matters affecting the parking
operation to the end that said facilities shall be utilized to maximum
efficiency and in the best interest of Lessor, Lessee and their respective
invitees. Lessee shall be limited to 3 parking spaces.
-----
19. CONSENTS. Wherever in this lease the consent of one party is required to
--------
an act of the other party such consent shall not be unreasonably withheld.
20. GUARANTOR. In the event that there is a guarantor of this lease, said
---------
guarantor shall have the same obligations as Lessee under this Lease.
21. QUIET POSSESSION. Upon Lessee paying the rental payments required herein
----------------
and observing and performing all of the covenants, conditions and provisions on
Lessee's part to be observed and performed hereunder, Lessee shall have quiet
possession of the Premises for the entire term hereof subject to all the
provisions of this Lease.
22. OPTIONS. See Item #30.
-------
-19-
23. Security Measures. Lessee hereby acknowledges that the rental payable to
-----------------
Lessor hereunder does not include the cost of guard service or other security
measures, and that Lessor shall have no obligation whatsoever to provide same.
Lessee assumes all responsibility for the protection of Lessee, its agents and
invitees from acts of third parties.
24. Easements and C,C & R's (covenent, conditions, and restrictions). Lessor
----------------------------------------------------------------
reserves to itself the right, from time to time, to grant such easements/C.C. &
R's, rights and dedications that Lssor deems necessary or desirable, and to
cause the recordation of Parcel Maps and restrictions, so long as such
easements/C.C. & R's, rights, dedications, Maps and restrictions do not
unreasonably interfere with the use of the Premises by Lessee. Lessee shall sign
any of the aforementioned documents and/or subordinate this lease XXX the
aforementioned documents upon request of Lessor and failure to do so shall
constitute a material breach of this Lease, as long as easements and CC & R's do
not limit the rights granted Lessee in this Lease.
25. Auctions. Lessee shall not conduct, or permit to be conducted, either
--------
voluntarily or involuntarily, any auction upon the Premises without first having
obtained Lessor's prior written consent. Notwithstanding anything to the
contrary in this Lease, Lessor shall not be obligated to exercise any standard
or reasonableness in determining whether to grant such consent.
26. Damage or Destruction. Notwithstanding the language in item #8, Lessee
---------------------
shall have the right to cancel and terminate this lease one hundred fifty (150)
days after casualty, should Lessor be unable to substantially complete repairs
caused by casualty damage within the 150 days period. Lessor shall have this
termination right within ten (10) days after the one hundred fifty (150) day
repair period.
-20-
27. LESSEE AFFILIATE. Notwithstanding the provisions of paragraph 11 hereof,
Lessee may assign or sublet the Premises, or any portion thereof, without
Lessor's consent, to any corporation which controls, is controlled by or is
under common control with Lessee, or to any person or entity which acquires all
the assets of Lessee as a going concern of the business that is being conducted
on the Premises, all of which are referred to as "Lessee Affiliate"; provided
that before such assignment shall be effective (a) said assignee shall resume,
in full, the obligations of Lessee under this lease and (b) Lessor shall be
given written notice of such assignment and assumption. Any such assignment
shall not, in any way affect or limit the liability of Lessee under the terms of
this Lease even if after such assignment or subletting the terms of this lease
are materially changed or altered without the consent of Lessee, the consent of
whom shall not be necessary.
28. INSURANCE. Should the Lessor decide to obtain earthquake insurance during
the term of this lease, the cost of earthquake insurance shall be excluded from
the building operating expenses detailed in item # 3.3(d).
29. PARKING. Lessee shall three (3) marked parking spaces as shown on
Exhibit "A", Area Map. In addition, Lessee shall be entitled to two (2) more
marked parking spaces should the parking area becomes full on a daily basis and
unsatisfactory to the Lessee.
30. GRANTED OPTION. Lessor grants Lessee two (2) 2-year options under the
same terms and conditions to renew this lease. Notice to exercise each option
shall be given to Lessor no later than 120 days prior to expiration of the
lease. Rent for the initial year of each option period shall be adjusted for any
change in common area maintenance, taxes and insurance, using 1991 as a base
year. 12 cents per sq. ft. per month has been used as the power allowance in
arriving at the initial rental rate. If the average power usage differs from 12
cents per sq. ft. per month over the prior 12 months of the lease, the rental
rate shall be adjusted either upward or downward for each succeeding 12 month
period, including option periods.
-21-
LEASE
FULL SERVICE LEASE
(NET)
"THIS LEASE is made between Lessor and Lessee named below as of the later of
the dates set forth under their respective signatures.
BASIC LEASE PROVISIONS
----------------------
1. Building Name: Xxxxxxx Business Center
Premises Address: 0000 Xx. Xxxxxxx Xxxxxxxxx #000, Xxxxxxxxx, XX 00000
2. Rentable area: 1592 S.F. Useable area _______S.F.
3. Building Maintenance Percentage: N/A
4. Basic Annual Rent: $25,790.40 ($______ per sq. ft.)
5. Monthly Rental Installments: $2,149.20 ($1.35 per sq. ft.)
6. Terms: 2 years and 0 months.
7. Lease Commencement Date: 5/1/92 or sooner, if possible
8. Security Deposit: $2,149.20
9. Broker(s): N/A
10. Lease Occupancy Date: 5/1/92 or sooner
IN WITNESS WHEREOF, the parties hereto have executed this Lease, consisting of
the foregoing Basic Lease provisions and Articles 1 through 26 which follow, as
of the later of the dates below.
LESSOR: Xxxxxxx Business Center LESSEE:
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxxx Xxxx
---------------------- -----------------
Xxxxxxx X. Xxxxxxx Xxxxxxxx Xxxx
-----------------
Xxxxxx Xxxxxxxxxx
-----------------
Xxxxxx Xxxxxxxx
GUARANTOR:
DATED: 3/12/92 DATED:
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ADDRESS: 0000 X. Xxxxxxx Xxxxxxxxx #000 ADDRESS:
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Xxxxxxxxx, XX. 00000
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MAIL: X.X. Xxx 0000, Xxxxxxxxx, XX. 00000
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TELEPHONE NO.: (000) 000-0000 TELEPHONE NO.:
TABLE OF CONTENTS
Article Page
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Base Lease Provisions......................................... 1
Table of Contents............................................. 2
1. Lease of Premises............................................. 4
2. Term.......................................................... 4
3. Rent & Security Deposit....................................... 4
4. Operating Expense Adjustment.................................. 6
5. Use........................................................... 8
6. Maintenance, Repairs and Alterations.......................... 8
7. Insurance: Indemnity.......................................... 10
8. Damage or Destruction......................................... 11
9. Personal Property Taxes....................................... 12
10. Utilities..................................................... 12
11. Assignment and Subletting..................................... 13
12. Defaults: Remedies............................................ 13
13. Condemnation or Restriction on Use............................ 15
14. Brokers....................................................... 17
15. Lessor's Liability............................................ 17
16. General Provisions............................................ 18
16.1 Estoppel Certificate.................................. 18
16.2 Severability.......................................... 18
16.3 Time of Essence....................................... 18
16.4 Captions.............................................. 18
16.5 Notices............................................... 18
16.6 Waivers............................................... 18
16.7 Holding Over.......................................... 18
16.8 Cumulative Remedies................................... 18
16.9 Inurement; Choice of Law.............................. 18
16.10 Subordination......................................... 18
16.11 Attorney's Fees....................................... 19
16.12 Lessor's Access....................................... 19
16.13 Corporate Authority................................... 19
16.14 Rights of Others...................................... 19
16.15 Safety & Health....................................... 20
16.16 Surrender of Cancellation............................. 20
Article Page
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16.17 Entire Agreement................................................ 20
16.18 Signs........................................................... 20
16.19 Interest on Past Due Obligations................................ 20
16.20 Gender; Number.................................................. 20
16.21 Lease Not Subject to Levy....................................... 20
16.22 Quitclaim....................................................... 20
16.23 Confidentiality of Lease........................................ 20
16.24 Financial Statements............................................ 21
17. Construction.............................................................. 21
18. Parking................................................................... 21
19. Consents.................................................................. 21
20. Guarantor................................................................. 21
21. Quiet Possession.......................................................... 21
23. Security Measures......................................................... 22
24. Easements and C,C & R's................................................... 22
25. Auctions.................................................................. 22
Rules and Regulations
1. LEASE OF PREMISES
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Lessor hereby leases to Lessee and Lessee leases from Lessor for the term,
at the rental, and upon all conditions set forth in this Lease, those certain
premises (the "Premises") in that certain building (the "Building") which
address is 0000 Xxxxx Xxxxxxx Xxxxxxxxx, #000, Xxxxxxxxxx, identified in
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Item 1 of the Basic Lease Provisions, together with non-exclusive use of any
common areas in the Building and of the parking areas adjoining the Building in
common with other tenants of the building, if any. The approximate location of
the building, Premises and associated parking is indicated on Exhibit "A" which
is attached hereto and incorporated hereto and incorporated herein by this
reference.
2. TERM
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2.1 Commencement of Term
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(a) The term of the Lease shall be as shown in Item 6 of the Basic
Lease Provisions, commencing on the Lease or such later date as may be herein
provided, unless sooner terminated pursuant to any provision hereof.
(b) Notwithstanding the foregoing, the term of this Lease shall
commence upon delivery of the possession of the Premises, and the date thereof
shall constitute the date of commencement of the term of this Lease. Delivery of
possession of the Premises shall occur upon written tender of same by Lessor.
(c) If delivery of possession occurs prior to the Lease Commencement
Date, the term of this Lease and all obligations of this Lease, shall commence
on such date of delivery of possession but the date of termination shall not be
advanced. Occupancy by Lessee for any purpose shall constitute an
acknowledgement that the Building and Premises have been satisfactorily
completed and Lessor shall have no further responsibility with respect to
construction except as herein expressly set forth. Lessee's execution and
delivery to Lessor prior to its occupancy of the Premises of a "Certificate of
Lessee's Acceptance of Occupancy" letter shall be deemed to be conclusive as to
the commencement of the term and Lessee's obligations under this Lease. See item
17.2, sixty day punch list.
(d) The actual date of commencement (the "Commencement Date") shall be
confirmed by the parties by initialling the lower portion of the Basic Lease
Provisions, after insertion of the Commencement Date and expiration date of the
Lease, promptly following such commencement, but failure of Lessee to
acknowledge the Commencement Date as established pursuant to this Article shall
not affect any obligation of Lessee hereunder or Lessor's determination of the
Commencement Date pursuant to this Article 2.
2.2 Delay in Commencement. Notwithstanding the Lease Commencement Date, if
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for any reason Lessor cannot deliver possession of the Premises to Lessee on or
before said date, Lessor shall not be subject to any liability therefor, nor
shall such failure affect the validity of this Lease or the obligations of
Lessee hereunder or extend the term hereof, but in such case Lessee shall not be
obligated to pay rent until delivery of possession of the Premises has occurred;
provided, however, that if Lessor shall not have delivered possession of the
Premises within two (2) months after said Lease Commencement Date, Lessor or
Lessee may, at Lessee's option, by notice in writing to Lessor within ten (10)
days thereafter, cancel this Lease, in which event the parties shall be
discharged from all obligations hereunder.
3. RENT & SECURITY DEPOSIT
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3.1 Basic Rent. Lessee shall pay to Lessor as rent for the Premises a
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basic annual rent in the amount specified in Item 4 of the Basic Lease
Provisions, payable without deduction or offset, in equal monthly installments
in the amounts specified in Item 5 of the Basic Lease Provisions in advance, on
the first day of each month, in lawful money of the United States, to Lessor at
the address stated herein, or to such other persons or at such other places as
Lessor may designate in writing. Rent for any period during the term hereof
which is for less than one month shall be a pro rata portion of the monthly
installment based upon a thirty (30) day month.
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0. USE
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5.1 The premises shall be used and occupied for general office purposes in
a manner consistent and in compliance with all applicable ordinances and other
governmental requirements affecting the Premises, and the Rules and Regulations
attached hereto and all additions to such Rules and Regulations as Lessor may
from time to time reasonably adopt for the safety, care and cleanliness of the
premises or the preservation of good order, and for no other purpose whatsoever
without the express written consent of Lessor, which consent shall be in the
sole and absolute discretion of Lessor. Lessor shall not be responsible to
Lessee for nonperformance of any said Rules and Regulations by any other tenant
of the Building.
5.2 Compliance with Law. Lessee shall, at Lessee's expense, comply
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promptly with all applicable statutes, ordinances, rules, regulations, orders
and requirements in effect during the term or any part of the term hereof
regulating the use by Lessee of the Premises. Lessee shall not use or permit the
use of the Premises in any manner that will tend to create waste or a nuisance
or, if there shall be more than one tenant of the Premises, which shall tend to
disturb such other tenants.
5.3 Insurance Cancellation. Notwithstanding the provisions of Paragraph
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5.1 above, no use shall be made or permitted to be made of the Premises nor acts
done which will cause the cancellation of any insurance policy covering said
Premises or the Building, and if Lessee's use of the Premises causes an increase
in said insurance rates Lessee shall pay any such increases.
6. MAINTENANCE, REPAIRS AND ALTERATIONS
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6.1 Lessor's Obligations. Lessor shall during the term of this lease
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maintain, or cause to be maintained, in good order, condition and repair, the
roof and walls of the Building (excluding the interior surface thereof and
excluding windows entirely) and any common areas in the Building ("Building
Maintenance"), as well as all parking areas, driveways, sidewalks, private roads
or streets, landscaping and all other areas located within the site, other than
areas occupied by buildings (such nonbuilding areas being herein referred to as
"common areas" and the maintenance thereof being sometime herein referred to as
"common area maintenance"), all signs, plumbing, electrical and air conditioning
equipment on or adjacent to the Premises, whether interior or exterior to the
Building. Lessor responsible for windows, except for breakage due to Lessee's
negligence.
6.2 Lessee's Obligations. Lessee shall during the term of this lease keep
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in good order, condition and repair, the interior of the Premises and every part
thereof, including without limitation all windows and doors. Except in the event
of Lessor's negligence, Lessor shall incur no expense nor have any obligation of
any kind whatsoever in connection with maintenance of the interior of the
Premises, as defined above, and Lessee expressly waives the benefits of any
statute now or hereafter in effect which would otherwise afford Lessee the right
to make repairs at Lessor's expense or to terminate this Lease because of
Lessor's failure to keep the interior of the Premises in good order, condition
and repair. Notwithstanding the foregoing, Lessor shall be liable for
maintenance or repairs which are caused by Lessor's negligence.
6.3 Surrender. On the last day of the term hereof, or on any ^illegible^
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termination, Lessee shall surrender the Premises to Lessor in good order and
condition, broom clean, ordinary wear and tear excepted. Lessee shall repair any
damage to the Premises occasioned by the removal of Lessee's trade fixtures,
furnishing and equipment, which repair shall include the patching and filling of
holes and repair of structural damage.
6.4 Alterations and Additions.
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(a) Lessee shall not, without Lessor's prior written consent, make any
alterations, improvements, additions, utility installations in or about the
Premises, except for nonstructural alterations not exceeding
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$500 in cost. As used in this Paragraph 6.4 the term "utility installations
shall include bus ducting, power panels, fluorescent fixtures, space heater
conduits and wiring. As a condition to giving such consent, Lessor may require
that Lessee agree to remove any such alterations, improvements, additions or
utility installations at the expiration of the term, and to restore the Premises
to their prior conditions.
(b) All alterations, improvements and additions to the premises shall
be performed by Lessor's contractor or by another licensed general contractor
mutually acceptable to Lessor and Lessee. Lessee shall pay when due, all claims
for labor or materials furnished to or for Lessee at or for use in the Premises,
which claims are or may be secured by any mechanics' or materialmen's lien
against the Premises or any interest therein, and Lessor shall have the right to
post notices of non-responsibility in or on the Premises as provided by law.
(c) Unless Lessor requires their removal pursuant to Paragraph 6.4 (a)
hereof, all alterations, improvements and additions which may be made on the
Premises shall become the property of Lessor and remain upon and be surrendered
with the Premises at the expiration of the term.
(d) If Lessor, in Lessor's sole discretion, should need or desire to
do any alteration or remodeling in any space next to, above, or below premises,
then Lessor shall have the right to enter into premises to do any and all work
needed, desired or wanted in such adjacent space. Lessor shall be required to
give Lessee twenty-four (24) hour notice and if such work should disrupt
Lessee's business then Lessor shall do said work after normal business hours.
Lessee's premises shall be left in good, clean order and repair.
6.5 Lessor's Rights. If Lessee fails to perform Lessee's obligations under
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this Article 6, Lessor may at its option (but shall not be required to) enter
upon the Premises after fifteen (15) days' prior written notice to Lessee, and
put the same in good order, condition and repair, and the cost thereof together
with interest thereon at the rate of ten percent (10%) per annum shall become
due and payable as additional rent to Lessor together with Lessee's next rental
installment.
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7. INSURANCE: INDEMNITY
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7.1 Liability Insurance. Lessee shall, at Lessee's expense, obtain and
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keep in force during the term of this lease comprehensive public liability
insurance insuring Lessor and Lessee against any liability arising out of the
ownership, use, occupancy or maintenance of the Premises, the Building and all
common areas. Such insurance shall be in the amount of not less than $1,000,000
combined single limit. The limits of said insurance shall not, however, limit
the liability of Lessee hereunder.
7.2 Property Insurance. Lessor shall obtain and keep in force during the
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term of this Lease a policy or policies of insurance covering loss or damage to
the Building, in the amount of the full replacement value thereof against all
perils, included within the classification of fire, extended coverage,
vandalism, malicious mischief, special extended perils (all risk). Said
insurance shall provide for payment of loss thereunder to Lessor or to the
holder of a first mortgage or deed of trust on the Premises as their interests
may appear. Lessor shall obtain and keep in force during the term of this lease
a policy of rental value insurance with an extended period of Indemnity
Endorsement (up to 10 months), with loss payable to Lessor, which insurance
shall also cover all real estate taxes, real estate brokers fees, and insurance
costs for said period. Additional insurance shall include but not be limited to,
a stipulated value or agreed amount endorsement deleting the co-insurance
provision of the policy, a Increased Cost of Construction Endorsement, a
Contingent Liability from Operations to Building Laws Endorsement Demolition and
Increased Time to Rebuild, a Cost of Inventory Appraisal and Adjustment
Endorsement, and an Automatic Increase in Insurance Endorsement. Lessor will not
insure Lessees fixtures, equipment, or supplies.
7.3 Waiver of Subrogation. Notwithstanding any contrary provision of this
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Lease, Lessee and Lessor each hereby waive any and all rights of recovery
against the other, or against the officers, employees agents and representatives
of the other, for loss of or damage to such waiving party or its property or the
property of others under its control to the extent that such loss or damage is
insured against under any insurance policy in force at the time of such loss or
damage. The insuring party shall, upon obtaining the policies of insurance
required hereunder, give notice to the insurance carrier or carriers that the
foregoing mutual waiver of subrogation is contained in this Lease.
7.4 Indemnity. Lessee shall indemnify and hold harmless Lessor from and
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against any and all claims arising from Lessee's use of the Premises, or from
the conduct of Lessee's business or from any activity, work, or things done,
permitted or suffered by Lessee in or about the Premises or elsewhere and shall
further indemnify and hold harmless Lessor from and against any and all claims
arising from any breach or default in the performance of any obligation on
Lessee's part to be performed under the terms of this Lease, arising from any
negligence of the Lessee, or any of Lessee's agents, contractors, or employees,
and from and against all costs, attorney's fees, expenses and liabilities
incurred in the defense of any such claim or any action or proceeding brought
thereon; and in case any action or proceeding is brought against Lessor by
reason of any such claim, Lessee upon notice from Lessor shall defend the same
at Lessee's' expense by counsel satisfactory to Lessor. Lessee as a material
part of the consideration to Lessor, hereby assumes all risk of damage to
property or injury to persons, in, upon, or about the Premises arising from any
cause and Lessee hereby waives all claims in respect thereof against Lessor.
Notwithstanding the foregoing Lessee shall not be responsible for any claims
which are the sole and proximate result of Lessor's negligence.
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7.5 Exemption of Lessor from Liability. Lessee hereby agrees that Lessor
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shall not be liable for injury to Lessee's business or any loss of income
therefrom or for damage to the goods, wares, merchandise or other property of
Lessee, Lessee's employees, invitee customers, or any other person in or about
the Premises, nor shall Lessor be liable for injury to the person of Lessee,
Lessee's employees agents or contractors, whether such damage or injury is
caused by or results from fire, steam, electricity, gas, water or rain, or from
the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixture or from any other
cause, whether the said damage or injury results from conditions arising upon
the Premises or upon other portions of the building of which the Premises are a
part, or from other cause or places, and regardless whether the cause of such
damage or injury or the means of repairing the same is inaccessible. Lessor
shall be liable for injury to Lessee's business or loss of income or damage to
the goods, wares, merchandise or other property of Lessee which arises as the
sole and proximate result of Lessor's Gross negligence.
7.6 Insurance Policies. Insurance required hereunder shall be in companies
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holding a "General Policyholders Rating" of at least B plus, or such other
rating as may be required by a lender having a lien on the Premises, as set
forth in the most current issue of "Best's Insurance Guide". The insuring party
shall deliver to the other party copies of policies of such insurance or
certificates evidencing the existence and amounts of such modification except
after thirty (30) days' prior written notice to Lessor. If Lessee is the
insuring party Lessee shall, at least thirty (30) days prior to the expiration
of such policies, furnish Lessor with renewals or "binders" thereof, or Lessor
may order such insurance and charge the cost thereof to Lessee, which amount
shall be payable by Lessee upon demand.
8. DAMAGE OR DESTRUCTION See Item #26.
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8.1 Partial Damage - Insured. Subject to the provisions of Paragraph 8.3
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hereof, if the Premises are damaged and such damage was caused by a casualty
covered under an insurance policy required to be maintained pursuant to
Paragraph 7.2 hereof, Lessor shall at Lessor's expense repair such damage as
soon as reasonably possible and this lease shall continue in full force and
effect.
8.2 Partial Damage - Uninsured. Subject to the provisions of Paragraph
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8.3, if at any time during the term hereof the Premises are damaged except by a
negligent or willful act of Lessee, and such damage was caused by casualty not
covered under an insurance policy required to be maintained pursuant to
Paragraph 7.2, Lessor may at Lessor's option either (i) repair such damage as
soon as reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or (ii) give written notice to Lessee within
thirty (30) days after the date of the occurrence of such damage of Lessor's
intention to cancel and terminate this Lease as of the date of the occurrence of
such damage. In the event Lessor elects to give such notice of Lessor's
intention to cancel and terminate this Lease, Lessee shall have the right within
ten (10) days after the receipt of such notice to give written notice to Lessor
of Lessee's intention to repair such damage at Lessee's expense, without
reimbursement from Lessor, in which event this Lease shall continue in full
force and effect, and Lessee shall proceed to make such repairs as soon as
reasonably possible. If Lessee does not give such notice within such ten (10)
day period this Lease shall be cancelled and terminated as of the date of the
occurrence of such damage.
8.3 Abatement of Rent: Lessee's Remedies
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(a) If the Premises are partially destroyed or damaged and Lessor or
Lessee repairs or restores them pursuant to the provisions of this Article, the
rent payable under Article 3 for the period during which such damage, repair or
restoration continues shall be abated in proportion to the degree to which
lessee's use of the Premises is impaired. Except for abatement of rent, if any,
Lessee shall have no claim against Lessor for any damage suffered by reason of
any such damage, destruction, repair or restoration.
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(b) If Lessor shall be obligated to repair or restore the Premises
under the provisions of this Article 8 and shall not commence such repair or
restoration within 90 days after such obligation shall accrue, subject to an
extension of up to another 90 days for delays beyond the reasonable control of
Lessor, Lessee may at Lessee's option:
(1) cancel and terminate this lease by giving Lessor written notice of
Lessee's election to do so at any time prior to the commencement of such repair
or restoration. In such event this Lease shall terminate as of the date of such
notice. Any abatement in rent shall be computed as provided in Paragraph 8.3 (a)
hereof.
or
(2) make such repairs or restoration and deduct the cost of such
repairs or restoration from the rent due under Article 3 hereof.
8.4 Total Destruction. If at any time during the term hereof the Premises
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are totally destroyed from any cause whether or not covered by the insurance
required to be maintained by Lessor pursuant to Article 7.2 (including any total
destruction required by any authorized public authority) this Lease shall
automatically termite as of the date of such total destruction. For purposes of
this Paragraph, total destruction of the Building shall be damage or destruction
the cost of repair of which shall, in the written opinion of a registered
Architect or engineer appointed by Lessor, exceed fifty percent (50%) of the
then replacement value of the Building and shall not require that the Premises
be totally or partially destroyed or damaged.
8.5 Insurance Proceeds Upon Termination. If this Lease is terminated
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pursuant to any right given Lessee or Lessor to do so under this Article 8, all
insurance proceeds payable with respect to the damage giving rise to such right
of termination shall be paid to Lessor and any encumbrance of the Premises, as
their interests may appear, except that Lessee will be entitled to the proceeds
of insurance on its leasehold improvements & personal property.
8.6 Restoration. Lessor's obligation to restore shall not include the
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restoration or replacement of Lessee's trade fixtures, equipment, merchandise or
any improvements or alterations made by Lessee to the Premises.
9. PERSONAL PROPERTY TAXES
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Lessee shall pay prior to delinquency all taxes assessed against and levied
upon trade fixtures, furnishings, equipment and all other personal property of
Lessee contained in the Premises or elsewhere. When practicable, Lessee shall
cause said trade fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of Lessor.
10. UTILITIES
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Lessor shall maintain and keep lighted all common areas, including but not
limited to, parking areas, landscaping area, sidewalks, entry and stairways.
Lessor shall furnish to premises separate electrical meters. Lessor shall
furnish water to the premises. Lessor shall furnish janitorial service to the
premises, and such shall be the responsibility of the Lessee. Lessor shall not
be liable for and Lessee shall not be entitled to, any reduction of rental by
reason of Lessor's failure to furnish any of the foregoing when such failure is
caused by accident, breakage, repairs, strikes, lockouts or other labor
disturbances, or labor disputes of any character, or by any other cause, similar
or dissimilar, beyond the reasonable control of Lessor. Lessor shall not be
liable under any circumstances for a loss of or injury to property, however
occurring, through or in connection with or incidental to failure to furnish any
of the foregoing. If lessee shall require water in excess of that usually
furnished or supplied for the use of the premises as general office space,
Lessee shall first procure the written consent of Lessor which Lessor may
refuse, to the use thereof and Lessor may cause a water meter to be installed in
the premises, so as to measure the amount of water consumed for any such use.
The cost of any such meters and of installation, maintenance and repair thereof
shall be paid for by Lessee and Lessee agrees to pay to Lessor promptly upon
demand therefor by lessor for all such water consumed as shown by said meters,
at the rates charged for such services by the local public utility furnishing
the same. Lessee has control of all air conditioning to the suite.
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11. ASSIGNMENT AND SUBLETTING See Item #27.
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11.1 Lessee shall not voluntarily or by operation of law sublet, assign,
transfer, mortgage or otherwise encumber, or grant concessions, licenses or
franchises with respect to, all of any part of Lessee's interest this Lease or
the Premises without the prior written consent of Lessor. If Lessee desires at
any time to assign this Lease or sublet the Premises or any portion thereof, it
shall first notify Lessor of its desire to do so and shall submit in writing to
Lessor (i) the name of the proposed subtenant or assigned, (ii) the nature of
the proposed subtenant's or assignee's business to be carried on in the
Premises; (iii) the terms and provisions of the proposed sublease or assignment.
Lessor may, as a condition to granting such consent, require that the obligation
of lessee hereunder be guaranteed by the parent or controlling corporation of
any assignee which is a subsidiary or affiliate of another corporation. Any
sublease, license, concession franchise or other permission to use the premises
made with consent of Lessor shall be expressly subject and subordinate to all
applicable terms and conditions of this Lease. Any purported concession,
franchise or other permission to use the Premises, contrary to the provisions of
this paragraph shall be void, and, at the option of Lessor, shall terminate this
Lease.
11.2 If Lessee is a corporation, any transfer of its stock, or any
disolution, merger or consolidation, which results in a change in the control of
Lessee from the person or persons owning a majority of its voting stock
immediately prior thereto or the sale or other transfer of all or substantially
all of the assets of Lessee, shall constitute an assignment of Lessee's interest
in this Lease within the meaning of this Article 11 and the provision requiring
consent contained herein. Lessor may require as a condition to giving such
consent that the new controlling person(s) immediately execute a guaranty of
this Lease.
11.3 No subletting, assignment, license, concession, franchise or other
permission to use the Premises shall relieve Lessee of its obligations to pay
rent or to perform all of the other obligations to be performed by Lessee
hereunder. The acceptance of rent by Lessor from any other person shall not be
deemed to be a waiver by Lessor of any provision of this Lease.
12. DEFAULTS; REMEDIES
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12.1 Default by Lessee. The occurrence of any one or more of the following
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events shall constitute a material default of this Lease by Lessee.
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure of Lessee to make any payment of rent or any other
payment required to be made by Lessee hereunder as and when due, where such
failure shall continue for a period of ten (10) days after written notice
thereof from Lessor to Lessee; provided, however, that any such notice shall be
in lieu of, and not in addition to, any notice required under California Code of
Civil Procedure Section 1161.
(c) The failure by Lessee to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Lessee,
other than as described in Paragraph 12.1 (b) hereof, where such failure shall
continue for a period of thirty (3) days after written notice thereof from
Lessor to Lessee; provided, however, that any such notice shall be in lieu of,
and not in addition to, any notice required under California Code of Civil
Procedure Section 1161; provided further, that if the nature of Lessee's default
is such that more than 30 days are reasonably required for its cure, then Lessee
shall not be deemed to be in default if Lessee commenced such cure within said
30 day period and thereafter diligently prosecutes such cure to completion.
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(d) The making by Lessee of any general assignment, or general
arrangement for the benefit of creditors; the filing by or against Lessee of a
petition to have Lessee adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of a
petiton filed against Lessee, the same is dismissed within 60 days); the
appointment of a trustee or receiver to take possession of substantially all of
the Lessee's assets located at the Premises, or of Lessee's interest in this
Lease, where possession is not restored to Lessee within 30 days; or the
attachment, execution or other judicial seizure of substantially all of Lessee's
assets located at the Premises or of Lessee's interest in this Lease, where such
seizure is not discharged within thirty days.
(e) The discovery by Lessor that any financial statement given to
Lessor by Lessee, and assignee of Lessee, any subtennant of Lessee, any
successor in interest of Lessee or any guarantor of Lessee's obligation
hereunder, and any of them, was materially false.
12.2 Remedies for Default of Lessee. In the event of any material default
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by Lessee as defined in Paragraph 12.1 hereof, Lessor may at any time
thereafter, upon notice and demand and without limiting Lessor in the exercise
of any other right or remedy which lessor may have by reason of such default
breach:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Lessor. In such event Lessor
shall be entitled to recover from Lessee:
(1) The worth at the time of aware of the unpaid rent which has been
earned at the time of termination;
(2) The worth at the time of aware of the amount by which the unpaid
rent which would have been earned after termination until the time of aware
exceeds the amount of such rental loss that Lessee proves could have been
reasonably avoided;
(3) The worth at the time of award of the amount by which the unpaid
rent for the balance of the term after the time of award exceeds the amount of
such rental loss that Lessee proves could be reasonably avoided; and
(4) Any other amount necessary to compensate the Lessor for all the
detriment proximately caused by Lessee's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom, including, but not limited to, the cost of recovering
possession of the Premises, Real Estate comminsions actually paid, reasonable
attorney's fees, and any other reasonable cost.
The "worth at the time of award" of the amounts referred to in subparagraphs (1)
and (2) above shall be computed by allowing interest at ten percent (10%) per
annum. The worth at the time of aware of the amount referred to in subparagraph
(3) above shall be computed by discounting such amount at one (1) percentage
point above the discount rate of the Federal Reserve Bank of San Francisco at
the time of award.
(b) Pursue any other remedy now or hereafter available to Lessor under
the laws or judicial decisions of the State of California. Unpaid installments
of rent and other unpaid monetary obligations of Lessee under the terms of this
lease shall bear interest from the date due at maximum rate then allowable by
law.
(c) Maintain Lessee's right to possession in which case this lease
shall continue in effect whether or not Lessee shall has abandoned the premises.
In such an event, Lessor shall be entitled to enforce all of Lessor's rights and
remedies under this lease.
-14-
12.3 Default by Lessor. The failure of Lessor to perform any obligation
-----------------
of Lessor under this Lease shall constitute a material default and breach of
this Lease by Lessor. Notwithstanding the foregoing, Lessor shall not be in
default unless Lessor fails to perform obligations required of Lessor within a
reasonable time, but in no event later than thirty (30) days after written
notice by Lessee to Lessor and to the holder of any first mortgage or deed of
trust covering the Premises whose names and addresses shall have theretofore
been furnished to Lessee in writing, specifying wherein Lessor has failed to
perform such obligations; provided, however, that if the nature of Lessor's
obligations is such that more than thirty (30) days are required for performance
then Lessor, shall not be in default if Lessor commences performance within such
30-day period and thereafter diligently prosecutes the same to completion. In
the event of any such default by Lessor, Lessee may pursue any remedy now or
hereafter available to Lessee under the laws or judicial decisions of the State
of California, except that Lessee shall not have the right to terminate this
Lease except as expressly provided in this Lease.
12.4 Late Charges. Lessee hereby acknowledges that the late payment by
------------
Lessee to Lessor of rent and other sums due hereunder will cause Lessor to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to
processing and accounting charges, and late charges which may be imposed on
Lessor by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Lessee shall
not be received by Lessor or Lessor's designee within ten (10) days after
payment is due, then Lessee shall pay to Lessor a late charge equal to ten
percent (10%) of such overdue amount. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the cost Lessor will incur
by reason of late payment by Lessee. Acceptance of such late charge by Lessee
shall in no event constitute a waiver of Lessee's default with respect to such
overdue amount, nor prevent Lessor from exercising any of the other rights and
remedies granted hereunder.
13. CONDEMNATION OR RESTRICTION ON USE
----------------------------------
13.1 Termination of Lease on Total Taking. In the event the entire
------------------------------------
Premises or leasehold interest shall be appropriated or taken under the power of
eminent domain by any public or quasi-public authority for any period of time,
this Lease shall terminate as of the date of such taking.
13.2 Lessee's Election to Terminate on Partial Taking. In the event more
------------------------------------------------
than ten percent (10%) of the floor area of the Premises or more than thirty
percent (30%) of the adjacent parking facility is taken under the power of
eminent domain by any public or quasi-public authority, and if by reason of any
such appropriation or taking, regardless of the amount so taken, the remainder
of the Premises or parking facility is not reasonably suitable for the operation
of Lessee's business taking into account Lessor's obligation to restore under
Paragraph 13.4, Lessee shall have the right to terminate this Lease as of the
date of such taking upon giving to Lessor notice in writing of such election
within one hundred twenty (120) days after such appropriation or taking.
Notwithstanding the foregoing, if the appropriation or taking is only of the
associated parking area Lessee shall not have a right to terminate this Lease
and rent shall not xxxxx if Lessor promptly provides substitute parking
reasonably accessible to the building of which the Premises are a part.
13.3 Each Party Entitled to Award. If this Lease is terminated in the
----------------------------
manner provided in Paragraph 13.1 or 13.2 hereof, each party shall be entitled
to any aware made to it in such proceedings; Lessee shall specifically be
entitled to that portion of any award attributable to unamortized expenditures
made by Lessee for improvements to the Premises. The unamortized portion of the
Lessee's expenditures for improving the Premises shall be determined by
multiplying such expenditures by a faction, the numerator of which shall be the
number of years of the term of this Lease which shall not have expired at the
time of such appropriation or taking, and the denominator of which shall be the
number of years of the term of this Lease which shall not have expired at the
time of improving the Premises. In no event shall options to renew or extend be
taken into consideration in determining the payment to be made to the Lessee.
Lessee's right to receive compensation or damages for its fixtures and personal
property shall not be affected in any manner thereby. The rent for the last
month of Lessee's occupancy shall be prorated and Lessor agrees to refund to
Lessee any unearned rent paid in advance.
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13.4 No Termination - Repairs and Rent Reduction. In the event of taking
-------------------------------------------
that does not result in a termination of this Lease under Paragraph 13.1 or 13.2
hereof, then Lessor shall, at Lessor's cost and expense, restore the Premises or
the parking facility remaining to a complete unit of the quality and character
as existed prior to such appropriation or taking, and therefore the rent
provided for in Article 3 hereof shall be reduced in the ratio that the floor
area of the Premises taken bears to the floor area of the Premises before such
taking, and Lessor shall be entitled to receive the total award compensation in
such proceedings, including any amount awarded to Lessee; provided, however,
that Lessee shall receive and retain any amount awarded to Lessee as
compensation for the taking of fixtures and equipment owned by Lessee or for the
expense of removal or repair of same.
13.5 Notice of Condemnation. Lessor agrees immediately after it receives
----------------------
notice of the intention of any such authority to appropriate or take to give to
Lessee notice in writing of such fact.
13.6 Voluntary Sale as Taking. A voluntary sale by Lessor to any public
------------------------
body or agency having the power of eminent domain, either under threat of
condemnation or while condemnation proceedings are pending, shall be deemed to
be a taking under the power of eminent domain from the purposes of this Article
13.
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14. BROKERS
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Lessor acknowledges its obligation to pay a single commission to the
broker(s) specified in Item 9 of the Basic Lease Provisions, if any. Lessee
represents and warrants that it has neither incurred nor is aware of any other
brokers', finders' or similar fee in connection with the origin, negotiation,
execution or performance of this Lease and agrees to indemnify and hold harmless
Lessor from any loss, liability, damage, cost or expense incurred by reason of
breach of this representation.
15. LESSOR'S LIABILITY
------------------
15.1 The term "Lessor" as used herein shall mean only the owner or owners
at the time in question of the fee title or a Lessee's interest in a ground
lease of the Premises. In the event of any transfer of such title or interest,
Lessor herein named (and in case of any subsequent transfers the then grantor)
shall be relieved from and after the date of such transfer of all liability as
respects Lessor's obligations thereafter to be performed, provided that any
funds in the hands of Lessor or the then grantor at the time of such transfer,
in which Lessee has an interest, then shall be delivered to the grantee. The
obligations contained in this Lease to be performed by Lessor, shall, subject as
aforesaid, be binding on Lessor's successors and assigns on during their
respective periods of ownership.
15.2 In consideration of the benefits accruing hereunder, Lessee, its
successors and assigns covenant and agree that, in the event of any actual or
alleged failure, breach or default hereunder by the initial Lessor:
(a) Lessee's sole and exclusive remedy for any damages from Lessor
shall be against the property that this lease covers, commonly known as 0000
Xxxx. Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000.
(b) No judgment will be taken against any co-owner; except against the
premises property.
(c) Any judgment taken against any co-owner - other than the premises
property, may be vacated and set aside at any time nuo pro tuno;
(d) No writ of execution will ever be levied against the assets of any
co-owner; except against the premises property.
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16. GENERAL PROVISIONS
------------------
16.1 Estoppel Certificate
--------------------
(a) Lessee shall at any time upon not less than ten (10) days prior
written notice from Lessor execute, acknowledge and deliver to Lessor a
statement in writing (i) certifying that this Lease is unmodified an in full
force and effect (or, if modified, stating the nature of such modification and
certifying that 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, and (ii)
acknowledging that there are not, to Lessee's knowledge, any uncured defaults on
the part of Lessor hereunder, or specifying such defaults if any are claimed.
Any such statement may be conclusively relied upon by and prospective purchaser
or encumbrancer of the Premises.
(b) Lessee's failure to deliver such statements within such time shall
be conclusive upon Lessee (i) that this Lease is in full force and effect,
without modification except as may be represented by Lessor, (ii) that there are
no uncured defaults in Lessor's performance, and (iii) that not more than one
month's rent has been paid in advance.
(c) If Lessor desires to finance or refinance the Premises or any part
thereof, Lessee hereby agrees to deliver to any lender designated by Lessor such
financial statements of Lessee as may be reasonably required by such lender. All
such financial statements shall be received by Lessor in confidence and shall be
used only for the purposes herein set forth.
16.2 Severability. The invalidity of any provision of this Lease as
------------
determined by a court of competent jurisdiction shall in no way affect the
validity of any other provision hereof.
16.3 Time of Essence. Time is of the essence in the performance all terms
---------------
and conditions of this Lease.
16.4 Captions. Article and paragraph captions have been solely as a matter
--------
of convenience and such captions in no way define or limit the scope or intent
of any provisions of this Lease.
16.5 Notices. Any notice required or permitted to be given hereunder shall
-------
be in writing and may be served personally or by regular mail addressed to
Lessor and Lessee respectively at the addresses set forth before their
signatures in Item 11 of the Basic Lease Provisions, or such other addresses as
may from time to time be designated in writing by Lessor or Lessee by notice
pursuant hereto.
16.6 Waiver. No waiver of any provisions hereof shall be deemed a waiver
------
of any other provision hereof. Consent to or approval of any act by or of the
parties hereto shall not be deemed to render unnecessary the obtaining of such
party's consent to or approval of any subsequent act. The acceptance of rent
hereunder by Lessor shall not be a wavier of any preceding breach by Lessee of
any provision hereof, other than the failure of Lessee to pay the particular
rent so accepted, regardless of Lessor's knowledge of such preceding breach at
the time of acceptance of such rent.
16.7 Holding Over. If Lessee remains in possession of the Premises or any
------------
part thereof after the expiration of the term hereof without the express written
consent of Lessor, such occupancy shall be tenancy from month to month at a
rental in the amount of the last monthly rental.
16.8 Cumulative Remedies. No remedy or election hereunder shall be deemed
-------------------
exclusive but shall, whatever possible, be cumulative with all other remedies at
law or in equity.
16.9 Inurement; Choice of Law. Subject to any provision hereof restricting
------------------------
assignment or subletting by Lessee and subject to the provisions of Article 15
hereof, the terms and conditions contained in this Lease shall bind the parties,
their personal representative, successors and assigns. This Lease shall be
governed by the laws of the State of California.
-18-
16.10 Subordination.
-------------
(a) This Lease, at Lessor's option, shall be subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation or security now or
herafter placed upon the real property of which the Premises are a part and to
any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Lessee's right to quiet possession of the
Premises shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee or ground lessor shall elect to have this Lease prior to the
lien of its mortgage, deed of trust or ground lease, and shall give written
notice thereof to Lessee, this Lease shall be deemed prior to such mortgage,
deed of trust, or ground lease, whether this Lease is dated prior or subsequent
to the date of said mortgage, deed of trust or ground lease or the date of
recording thereof.
(b) Lessee agrees to execute any documents required to effectuate an
attornment, a subordination or to make this Lease prior to the lien of any
mortgage, deed of trust or ground lease, as the case may be. Lessee's failure to
execute such documents within 10 days after written demand shall constitute a
material default by Lessee herunder, or, at Lessor's option Lessor shall execute
such documents on behalf of Lessee as Lessee's attorney-in-fact. Lessee does
hereby make, constitute and irrevocable appoint Lessor as Lessee's attorney-in-
fact and in Lessee's name, place and stead, to execute such documents in
accordance with this paragraph 16.10 (b). Lessee's obligation to execute any
documents is subject to the documents containing a non-disturbance clause as is
stipulated in 16.10a.
16.11 Attorney's Fees. If either party hereto brings an action to enforce
---------------
the terms hereof or declare rights hereunder, the prevailing party in any such
action, on trial or appeal, shall be entitled to reasonable costs and attorney's
fees to be paid by the losing party. For purposes of this provision, in any
action or proceedings instituted by Lessor based upon any default or alleged
default by Lessee hereunder, Lessor shall be deemed the prevailing party if (a)
judgement is entered in favor of Lessor or (b) prior trail or judgment Lessee
shall pay all or any portion of the rent and charges claimed by Lessor,
eliminate the condition(s), cease the act(s) or otherwise cure the omission(s)
claimed by Lessor to constitute a default by Lessee hereunder.
16.12 Lessor's Access. Lessor and Lessor's agents shall have the right to
---------------
enter the Premises at reasonable times for the purpose of inspecting the same,
showing the same to prospective purchasers, or lenders, and making such
alterations, repairs, improvements or additions to the Premises or to the
building of which they are a part as Lessor may deem necessary or desirable.
Lessor may at any time place on or about the Premises any ordinary "For Sale"
signs and Lessor may at any time during the last one hundred eighty (180) days
of the term hereof place on or about the Premises any ordinary "For Sale," "For
Lease" or similar signs all without rebate of rent or liability to Lessee.
16.13 Corporate Authority. If Lessee is a corporation, each individual
-------------------
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation, in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the By-Laws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. If Lessee is a corporation, Lessee shall, within thirty (30)
days after execution of this Lease, deliver to Lessor a certified copy of a
resolution of the Board of Directors of said corporation authorizing or
ratifying the execution of this Lease.
16.14 Rights of Others. Except as otherwise provided herein, nothing
----------------
expressed or implied is intended, or shall be construed, to confer upon or grant
any person any rights or remedies under or by reason of any term of condition
contained in this Lease.
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16.15 Safety and Health. Lessee covenants at all times during the term of
-----------------
the Lease to comply with the requirements of the Occupational Safety and Health
Act of 1970, 29 U.S.C. Section 651 et seq and any analogous legislation in
California (collectively, the "Act"), to the extent that the applies to the
Premises and any activities thereon and without limiting the generality of the
foregoing, Lessee covenants to maintain all working areas, all machinery,
structures, electrical facilities and the like upon the Premises in such a
condition that fully complies with the requirements of the Act, including such
requirements as would be applicable with respect to agents, employees or
contractors of Lessor who may from time to time be present upon the Premises,
and Lessee agrees to indemnify and hold harmless Lessor from a liability, claims
or damages arising as a result of a breach of the foregoing covenant and from
all costs, expenses and charges arising therefrom including without limitation,
attorney's fees and court costs incurred by Lessor in connection therewith,
which indemnity shall survive the expiration or termination of this Lease.
16.16 Surrender or Cancellation. The voluntary or other surrender of this
-------------------------
Lease by Lessee, or a mutual cancellation thereof, shall not work a merger, and
shall terminate all or any existing subleases, unless Lessor elects to treat
such surrender or cancellation as an assignment to Landlord of any or all of
such subleases.
16.17 Entire Agreement. This Lease covers in full each and every agreement
----------------
of every kind or nature whatsoever between the parties hereto concerning the
Premises and the Building, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. Lessor has made no representations
or promises whatsovever with respect to the Premises or the Building, except
those contained herein; and no other person, firm or corporation has at any time
had any authority from Lessor to make any representations or promises on behalf
of Lessor, and Lessee expressly agrees that if any such representations or
promises have been made by others, Lessee hereby waives all right to rely
thereon. No verbal agreement or implied covenant shall be held to vary the
provisions hereof, any statute, law or custom to the contrary notwithstanding.
16.18 Signs. Lessee shall not install any signs on the exterior of the
-----
Premises or Building, or any free standing signs without the prior written
approval of Lessor. All such approved signs shall be installed and removed at
Lessee's sole cost and expense.
16.19 Interest on Past Due Obligations. Any amount due from Lessee to
--------------------------------
Lessor hereunder which is not paid when due shall bear interest at ten percent
(10%) per annum from the date due until paid, but the payment of such interest
shall not excuse or cure any default by Lessee.
16.20 Gender; Number. Whenever the context of this Lease requires the
--------------
masculine gender includes the feminine or neuter, the singular number includes
the plural.
16.21 Lease Not Subject to Levy. This Lease and the interest of Lessee
-------------------------
hereunder shall not be subject to garnishment or sale under execution any action
or proceeding which may be brought against or by Lessee without the written
consent of Lessor.
16.22 Quitclaim. At the expiration or earlier termination of this Lease,
---------
Lessee shall execute, acknowledge and deliver to Lessor, within ten (10) days
after written demand from Lessor a quitclaim deed or other document reasonably
required by any reputable title company to remove the cloud of this Lease from
the title of the real property subject to Lease.
-20-
16.24 Financial Statements. During term of Lease and any extension
--------------------
thereto, tenant shall produce current financial statements within twenty (20)
days of written notification from Lessor.
17. CONSTRUCTION
------------
17.1 Lessor shall at its expense cause the construction of tenant
improvements in the Premises in accordance with the attached Plan which has been
initialed by Lessor and Lessee concurrently with the execution of this Lease and
which is incorporated herein by this reference. No changes shall be made in the
initially approved plans and specifications without the prior written approval
of Lessor and lessee, and all additional expenses incurred by Lessor with
respect to any changes (except changes requested by Lessor) shall be reimbursed
to Lessor by Lessee upon demand.
17.2 Lessor shall at its expense promptly correct all items not conforming
with the plans and specifications of which Lessor is notified by Lessee in
writing within sixty (60) days after Lessee takes possession of the Premises.
17.3 Lessor warrants the Building and tenant improvements installed in the
Premises by lessor against any defects in materials and workmanship of which
Lessor is notified by Lessee in writing within one (1) year after date of
completion of the work in question. Lessor further warrants that the
construction of the Building and tenant improvements will, upon completion,
comply with all applicable statutes, ordinances, rules, regulations, orders and
requirements of governmental authorities in effect as of the commencement of the
lease term.
18. PARKING See Item #29
-------
During the term of this Lease, Lessee shall have the right in common with
other lessees of the Building (if any) to use the parking area subject to such
rules and regulations as may be established from time to time by Lessor for the
effective use of said parking area. Said rules and regulations may include, but
shall not be limited to, such items as: designation of specific areas for use by
invitees of Lessee and Lessor; hours during which said parking shall be open for
use; use of a parking attendant; and such other matters affecting the parking
operation to the end that said facilities shall be utilized to maximum
efficiency and in the best interest of Lessor, Lessee and their respective
invitees. Lessee shall be limited to seven (7) parking spaces.
19. CONSENTS. Wherever in this lease the consent of one party is required to
--------
an act of the other party such consent shall not be unreasonably withheld.
20. GUARANTOR. In the event that there is a guarantor of this lease, said
---------
guarantor shall have the same obligations as Lessee under this Lease.
21. QUIET POSSESSION. Upon Lessee paying the rental payments required herein
----------------
and observing and performing all of the covenants, conditions and provisions on
Lessee's part to be observed and performed hereunder, Lessee shall have quiet
possession of the Premises for the entire term hereof subject to all the
provisions of this Lease.
22. OPTIONS. See Item #30
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-21-
23. Security Measures. Lessee hereby acknowledges that the rental payable to
-----------------
Lessor hereunder does not include the cost of guard service or other security
measures, and that Lessor shall have no obligation whatsoever to provide same.
Lessee assumes all responsibility for the protection of Lessee, its agents and
invitees from acts of third parties.
24. Easements and C.C. & R's (covenant, conditions, and restrictions). Lessor
----------------------------------------------------------------
reserves to itself the right, from time to time, to grant such easements/C.C. &
R's, rights and dedications that Lessor deems necessary or desirable, and to
cause the recordation of Parcel Maps and restrictions, so long as such
easements/C.C. & R's, rights, dedications, Maps and restrictions do not
unreasonably interfere with the use of the Premises by Lessee. Lessee shall sign
any of the aforementioned documents and/or subordinate this lease XXX the
aforementioned documents upon request of Lessor and failure to do so shall
constitute a material breach of this Lease, as long as easements and C.C. & R's
do not limit the rights granted Lessee in this Lease.
25. Auctions. Lessee shall not conduct, or permit to be conducted, either
--------
voluntarily or involuntarily, any auction upon the Premises without first having
obtained Lessor's prior written consent. Notwithstanding anything to the
contrary in this Lease, Lessor shall not be obligated to exercise any standard
or reasonableness in determining whether to grant such consent.
26. Damage or Destruction. Notwithstanding the language in item #8, Lessee
---------------------
shall have the right to cancel and terminate this lease one hundred fifty (150)
days after casualty, should Lessor be unable to substantially complete repairs
caused by casualty damage within the 150 days period. Lessee shall have this
termination right within ten (10) days after the one hundred fifty (150) day
repair period.
-22-
27. LESSEE AFFILIATE. Notwithstanding the provisions of paragraph 11 hereof,
Lessee may assign or sublet the Premises, or any portion thereof, without
Lessor's consent, to any corporation which controls, is controlled by or is
under common control with Lessee, or to any person or entity which acquires all
the assets of Lessee as a going concern of the business that is being conducted
on the Premises, all of which are referred to as "Lessee Affiliate"; provided
that before such assignment shall be effective (a) said assignee shall resume,
in full, the obligations of Lessee under this lease and (b) Lessor shall be
given written notice of such assignment and assumption. Any such assignment
shall not, in any way affect or limit the liability of Lessee under the terms of
this Lease even if after such assignment or subletting the terms of this lease
are materially changed or altered without the consent of Lessee, the consent of
whom shall not be necessary.
28. INSURANCE. Should the Lessor decide to obtain earthquake insurance during
the term of this lease, the cost of earthquake insurance shall be excluded from
the building operating expenses detailed in item # 3.3(d).
29. PARKING. Lessee shall five (5) marked parking spaces as shown on
Exhibit "A", Area Map. See Addendum. In addition, Lessee shall be entitled to
two (2) more marked parking spaces should the parking area becomes full on a
daily basis and unsatisfactory to the Lessee.
30. GRANTED OPTION. Lessor grants Lessee two (2) 2-year options under the
same terms and conditions to renew this lease. Notice to exercise each option
shall be given to Lessor no later than 120 days prior to expiration of the
lease. Rent for the initial year of each option period shall be adjusted for any
change in common area maintenance, taxes and insurance, using 1991 as a base
year. 12 cents per sq. ft. per month has been used as the power allowance in
arriving at the initial rental rate of $1.35. If the average power usage differs
from 12 cents per sq. ft. per month over the prior 12 months of the lease, the
rental rate shall be adjusted either upward or downward for each succeeding 12
month period, including option periods.
-23-
RULES AND REGULATIONS ATTACHED TO
---------------------------------
AND MADE A PART OF THIS LEASE
-----------------------------
1. (a) No sign, placard, drapery, picture, advertisement, name or notice
shall be inscribed, displayed or printed or affixed on or to any part of the
outside of the Building without the written consent of Lessor first had and
obtained and Lessor shall have the right to remove any such sign, placard,
picture, advertisement, name or notice without notice to and at the expense of
Lessee.
(b) All approved signs or lettering on doors shall be printed, painted,
affixed or inscribed at the expense of Lessee by a person approved of by Lessor.
(c) Lessee shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unconforming or
unsightly from outside the Premises. This Rule 1(a) shall be in the sole
discretion of Lessor and Lessee shall be in default if Lessee does not remove
same on demand from Lessor.
2. The bulletin board or directory of the Building, if any, will be provided
exclusively for the display of the names and locations of Lessee only and Lessor
reserves the right to exclude any other names therefrom.
3. All sidewalks, decks, halls, passages, exits, entrances, and stairways
of the Building, if any, shall not be obstructed by any Lessee or used by him
for any purpose other than for ingress to and egress from his respective
Premises. The halls, passages, exits, entrances, stairways, balconies and roof
are not for the use of the general public and the Lessor shall in all cases
retain the right to control and prevent access thereto by all persons whose
presence in the judgment of the Lessor shall be prejudicial to the safety,
character, reputation and interest of the Building and its Lessees, provided
that nothing herein contained shall be construed to prevent such access to
persons with whom the Lessee normally deals in the ordinary course of Lessee's
business unless such persons are engaged in illegal activities. No Lessee and no
employee or invitee of any Lessee shall go upon the roof of the Building without
the prior consent of Lessor. For purposes of Lessee's obligations, if any, of
repair and maintenance of the heating, ventillating and air conditioning systems
of the Premises Lessee shall use a maintenance firm selected or designated by
Lessor.
4. Lessee shall not alter any lock nor install any new or additional locks
or any bolts on any door of the Premises.
5. Lessee shall not overload the floor of the Premises or xxxx, drive
nails, screw or drill into the partitions, woodwork or plaster or in any way
deface the Premises or any part thereof, except for pictures on walls.
6. Lessee shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to the Lessor or other
occupants of the Building by reason of noise, odors and/or vibrations, or
interfere in any way with other Lessees or those having business therein, nor
shall any animals or birds be brought in or kept in or about the Premises or the
Building.
7. No cooking shall be done or permitted by any Lessee on the Premises,
nor shall the Premises be used for washing clothes, for lodging, or for any
improper, objectionable, or immoral purposes.
8. Lessee shall not use or keep in the Premises or Building any kerosene,
gasoline or inflammable or combustible fluid or material, or use any method of
heating or air conditioning other than that supplied by Lessor.
-i-
9. Lessor will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires will be
allowed without the consent of Lessor. The location of telephone, call boxes and
other office equipment affixed to the Premises shall be subject to the approval
of Lessor.
10. Each Lessee, upon the termination of his tenancy, shall deliver to the
Lessor the keys of the offices, rooms and toilet rooms which shall have been
furnished the Lessee or which the Lessee shall have had made, and in the event
of loss of any keys so furnished, shall pay the Lessor therefor.
11. No Lessee shall lay linoleum, tile, carpet or other similar floor
covering so that the same shall be affixed to the floor of the Premises in any
manner except as approved by the Lessor. The expense of repairing and damage
resulting from a violation of this rule or removal of any floor covering shall
be borne by the Lessee by whom, or by whose contractors, employees or invitees,
the damage shall be caused.
12. On Saturdays, Sundays and legal holidays, and on other days between
the hours of 6:00 P.M. and 8:00 A.M., the following day, access to the Building,
or to the halls, corridors or stairways in the Building, if any, or to the
Premises may be refused unless the person seeking access is known to person or
employee of the Building in charge or has a pass or is properly identified. The
Lessor shall in no case be liable for damages for any error with regard to the
admission to or exclusion from the Building during the continuance of the same
by closing the doors or otherwise, for the safety of the Lessees and protection
of property in the Building and the Building.
13. Lessee shall see that the doors of the Premises are closed and
securely locked before leaving the Building and must observe strict care and
caution that all water faucets or water apparatus are entirely shut off before
Lessee or Lessee's employees leave the Building, and that all electricity shall
likewise be carefully shut off, so as to prevent waste or damage, and for any
default or carelessness Lessee shall make good all injuries sustained by other
tenants or occupants of the Building or Lessor.
14. Lessor reserves the right to exclude or expel from the Building any
person who, in the judgment of Lessor, is intoxicated or under the influence of
liquor or drugs, or who shall in any manner do any act in violation of any of
the Rules and Regulations of the Building.
15. Employees of Lessor shall not perform any work or do anything outside
of their regular duties unless under special instructions from the Lessor, and
no employee will admit any person (Lessee or otherwise to any office without
specific instructions from the Lessor).
16. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of the
Lessor.
17. Lessor shall have the right, exercisable without notice and without
liability to Lessee, to change the name and street address of the Building of
which the Premises are a part.
18. Lessee shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate to prevent same.
19. Without the written consent of Lessor, Lessee shall not use the name
of the Building in connection with or in promoting or advertising the business
of Lessee except as Lessee's address.
20. Lessor reserves the right to make such other and further
nondiscriminatory Rules and Regulations as in its judgment may be necessary or
desirable for the safety, care and cleanliness of the Premises and the Building
and for the preservation of good order therein. Lessee agrees to abide by all
such Rules and Regulations which are adopted.
21. Any permitted corrosive, flammable or other special wastes shall be
handled for disposal as directed by Lessor.
-ii-
22. Lessee's use of the common areas shall be limited to access and
parking purposes and under no circumstances shall Lessee be permitted to store
any goods or equipment, conduct any operations or construct or place any
improvements, barriers or obstructions in the common areas, or otherwise
adversely affect the appearance thereof.
____________________ ______________________
LESSOR'S INITIALS LESSEE'S INITIALS
-iii-
EXHIBIT "A"
-----------
XXXXXXX BUSINESS CENTER
-- CALABASAS -
SITE PLAN
[Map]
Addendum to Lease dated 3/12/92 between Genesis 2000 and Xxxxxxx Business Center
for Xxxxx 000, 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xx. 91302
-------------------------------------------------------------------------------
This lease is modified as of May 1, 1998.
Suite 233 (1,451 sq. ft.) is hereby added to the lease to begin on May 1, 1998
and terminate on October 31, 2000. The total square footage of all suites will
be 6,501 sq. ft.
The terms of leases for Suites 200, 201, 210 and 232 are extended to terminate
on October 31, 2000.
All terms and conditions shall apply, except that the rental rate for all
suites shall be $1.56 Full Service, effective 5/1/98, with an annual increase of
3% in lieu of a CPI or CAM adjustment.
The rent will be $10,141.00 per month, beginning 5/1/98.
Lease deposits now existing are:
Xxxxx 000 $2,149.20
Xxxxx 000 1,396.50
Xxxxx 000 2,079.00
Xxxxx 000 1,700.00
---------
$7,324.70
=========
Total lease deposits are to be the amount of the new rent, $10,141.00.
Therefore, an additional lease deposit of $2,816.00 is payable upon execution of
this addendum.
Lessor will demo walls in Suite 232, per attached plan, demo wall between Suite
232 and 233, carpet and paint Suite 232 and 233, per Phase One Construction
specifications. Phases Two and Three will follow, upon completion of Phase One.
Lessee has an early termination privilege after Jan. 31, 1999 by giving 60 days
written notice and remitting an amount of $500.00 for each remaining month of
this lease to the date of termination as a settlement amount for unamortized
leasehold improvements. The lease deposit may not be used as a credit toward
this amount.
Xxxxxxx Business Center
/s/ X.X. Xxxxxxx
-------------------------
X.X. Xxxxxxx
Agreed:
Genesis 2000
-----------------
-----------------
-----------------
Xxxxx 00, 0000
Xxxxx One Construction
Suite 232
1. Demolition of all interior walls in Suite 232 with the exception of the
office with the 2 glass panels. This will stay intact.
2. Sink and cabinets to be taken out of existing kitchen.
3. All electrical must be moved to accommodate cubicles. Including having power
in modular units in the floor for two units.
4. Ceiling to floor panels to cover phone equipment.
5. Paint and Carpeting
Suite 233 (Occupancy May 1, 1998)
1. Door must be moved on large office to elongate wall so that cubicles may be
built.
2. New wall to be built in front of existing storage area to increase the
storage closet and the door to this storage must be moved. Shelves to be
installed.
3. Demolition of wall between Xxxxx 000 xxx Xxxxx 000.
4. Paint and carpeting (Xxxx)
Xxxxx Xxx Xxxxxxxxxxxx
Xxxxx 000
0. New wall built with door creating new office space where existing shipping
area is.
2. Server wall added by column in existing shipping area.
3. Adjoining wall between shipping and existing accounting area to be taken
down.
4. Addition of Sink in new lunchroom with Garbage Disposal.
5. Reconnection of Sink in existing storage room and removal shelves.
Phase Three Construction
Suite 210
1. Demolition of conference room and cubicle.
2. Creation of Kitchenette.
This list has the major starting points for the phases of construction. There
may be needs that arise during the process whereby items may have to be added to
the list. We ask that Xxxxxxx Business Center be responsive to these needs as
they arise.
[LETTERHEAD OF XXXXXXX BUSINESS CENTER]
Xxxxxxx X. Xxxxxxx
Addendum No. 2 to Lease with Homy Majd et al dated 3/12/92
Xxxxx 000, 0000 Xx. Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xx. 91302
-----------------------------------------------------------
The lease for Suite 200 is hereby extended one year to 4/30/95, under the same
terms and conditions as the lease and addendum dated 3/12/92.
In consideration for this extension, and in consideration of Lessees leasing
Suite 201, Lessor will, at his sole cost, construct a hallway wall to enclose a
storage area, enclose an office, and recarpet and paint the area (except for the
storage room) in Suite 201.
Addendum to Lease with Homy Majd et al dated 3/24/93
Xxxxx 000, 0000 Xx. Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xx. 91302
-----------------------------------------------------------
All of the provisions of Addendum dated 3/12/92 (Suite 200) and the above
addendum are incorporated into the lease for Suite 201, by reference, except
that the initial rent for Suite 201, beginning 4/15/93, shall be $1.50 per
square foot, and shall not be subject to the 4% increase until the second year.
A lease deposit of $1,396.50 and the first month's rent of
$1.396.50 is due upon execution of the lease for Suite 201.
Xxxxxxx Business Center
/s/ Xxxxxxx Xxxxxxx
-----------------------
March 24, 1993
Agreed:
-----------------------
XXXXXXXX XXXX
/s/ Xxxxxx Xxxxxxxxxx
-----------------------
XXXXXX XXXXXXXXXX
/s/ Xxxxxx Xxxxxxxx
-----------------------
XXXXXX XXXXXXXX
Xxxxxxx X. Xxxxxxx
Addendum No. 3 to Lease with Homy Majd et al dated 3/12/92 for
Xxxxx 000, 0000 Xx. Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xx. 91302
-----------------------------------------------------------
Lessee hereby leases Xxxxx 000, 0000 Xx. Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xx. 91302
under the same terms and conditions as the lease of Suite 200, except that the
period shall be from October 9, 1993 to April 30, 1995, and the rental rate
shall be $1.50 full service for the entire period of the lease. The leaseable
suite is 1,386 sq. ft. This lease entitles lessee to 5 parking spaces, per the
terms of the lease dated 3/12/92.
Lessor will carpet and paint the suite per lessee's selection of colors, to
building standards.
Rent for the first full month is $2,079.00 payable, together with a lease
deposit of $2,079.00, upon execution of this Adddendum.
Xxxxxxx Business Center
/s/ Xxxxxxx Xxxxxxx
-----------------------
September 16, 1993
Agreed:
/s/ Xxxxxxxx Xxxx
--------------------------
Xxxxxxxx Xxxx
/s/ Xxxxxx Mirfarhrai
--------------------------
Xxxxxx Mirfarhrai
/s/ Xxxxxx Xxxxxxxx
--------------------------
Xxxxxx Xxxxxxxx
