EXHIBIT 10.5
BROADLAKE PLAZA
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Office Lease
000 00xx Xxxxxx, Xxxxxxx, XX 00000
(000) 000-0000
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TABLE OF CONTENTS
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Page
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1. Parties 1
2. Lease of Premises 1
3. Term 1
4. Minimum Rent 1
5. Rental Adjustment 2
6. Taxes Payable by Tenant 4
7. Possession 5
8. Use of Premises 6
9. Security Deposit 7
10. Assignment, Subletting and Encumbering 8
11. Maintenance and Repair 9
12. Service and Utilities 10
13. Compliance with Law 12
14. Alterations 13
15. Liens 14
16. Fire and Casualty Insurance 14
17. Damage and Destruction 15
18. Public Liability Insurance 15
19. Subrogation 16
20. Eminent Domain 16
21. Xxxxxxxxxxxxxxx xx Xxxxxxxx 00
00. Entry by Landlord 17
23. Default 17
24. Remedies 18
25. Late Charges 18
26. Landlord's Right to Cure Xxxxxxx 00
00. Default by Landlord 19
28. Landlord's Option to Relocate Tenant 20
29. Sale of Premises 20
30. Estoppel Certificates 20
31. Xxxxxxxxx 00
00. Xxxxxxxxxx 00
00. Demolition of Premises 21
34. Subordination 21
35. Notices 22
36. General Provisions 22
Exhibit A -- Plan Outlining Premises
Exhibit B -- Work Agreement
Exhibit C -- Rules and Regulations
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OFFICE LEASE
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1. PARTIES
THIS LEASE is made this 20th day of April, 1999 at Oakland by and
between, BROADLAKE PARTNERS, A CALIFORNIA LIMITED PARTNERSHIP as landlord, and
VALUESTAR, INC as Tenant.
WITNESSETH:
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2. LEASE OF PEMISES
Landlord does hereby lease to Tenant and Tenant hereby leases from
Landlord that certain office space (hereinafter called "premises") outlined in
red on Exhibit A attached hereto and hereby by reference made a part hereof,
said premises comprising a rentable area of 14,908 square feet, more or less,
and being situated on the 2nd floor of that certain building known as BROADLAKE
PLAZA in the City of Oakland, County of Alameda, State of California and more
particularly described as:
000 00xx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
hereinafter referred to as "Building." This Lease is entered into subject to the
terms, covenants and conditions herein set forth and the Tenant agrees as a
material part of the consideration of this Lease to keep and perform each and
all of said terms, covenants and conditions by it to be kept and performed and
that this Lease is made upon the condition of such performance.
3. TERM
The term of the lease shall be for 5 years commencing on the 30th day
of June, 1999 (hereinafter referred to as the "Commencement Date") or on any
such earlier date on which Tenant first takes possession of the Premises and
ending on the 29th day of June, 2004, unless the term hereof shall be sooner
terminated as herein provided. * See attached Addendum items 2 & 4.
4. MINIMUM RENT
Tenant shall pay to Landlord as rent for the use and occupancy of the Premises,
at the times and in the manner hereinafter provided, the following sums of
money:
(a) Minimum Rent. Tenant shall pay to Landlord, without deduction or
offset and without notice or demand, minimum rent in the amount of Seventeen
Thousand Eight Hundred Ninety ($17,890.00) per month, payable in advance on the
commencement of the term hereof and on or before the first day of each and every
successive calendar month during the term hereof. If
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the term commences or ends on other than the first day of a calendar month, the
payment of minimum rent shall be appropriately prorated.
(b) On the third anniversary of this lease the minimum rent
payable by Tenant under this Paragraph 4 shall be increased to an amount
determined by multiplying the minimum rent specified in Paxagraph 4(a) above by
a fraction, the denominator of which shall be the Consumer Price Index-All Urban
Consumers (San Francisco-Oakland Metropolitan Bay Area; All Items; 1982-1984 --
100) prepared by the Bureau of Labor Statistics of the United States Department
of Labor, published for the month immediately preceding the month in which the
term of this Lease commenced and the numerator of vhich shall be said Consumer
Price Index published for the month immediately preceding the date of such
adjustment. Should Landlord lack sufficient data to make the determination
specified in this Paragraph 4(b) on the date of any such adjustment, Tenant
shall continue to pay the Monthly minimum rent payable immediately prior to such
adjustment date. As soon as Landlord obtains the necessary data, it shall
determine the minimum rent payable from and after such adjustment data and
notify Tenant of the adjustment in writing. Should the Monthly minimum rent for
the period following such adjustment date exceed the amount previously paid by
tenant for such period, Tenant shall forthwith pay. the difference to-Landlord.
Should the monthly minimum rent for such period be less than the amount
previously paid by Tenant for such period the overpayment shall be credited to
the next installment of rent due hereunder. In the event the federal government
should cease to publish the Consumer Price Index-All Urban Consumers described
above, Landlord and Tenant shall agree upon a similar available price index to
be used in lieu of such the Consumer Price Index-All Urban Consumers for
determining adjusted rent hereunder. If Landlord and Tenant are unable to agree
as to a replacement index, the question of designation of a replacement index
shall be presented for arbitration to a single neutral arbitrator to be
appointed at the request of either Landlord or Tenant by the then-presiding
judge of the Superior Court of the City and County of San Francisco, in
accordance the laws of the State of California then in effect relating to
arbitration, including, without limitation, sections 1280 to 1294.2 of the
California Code of Civil Procedure and any amendments thereto. Each of the
parties hereto shall pay for the services of its attorneys and witnesses plus
one half of any fee charged by the arbitrator appointed and one half of all
other proper costs relatiug to arbitration. * See attached Addendim I, item #1.
5. RENTAL ADJUSTMENT
(a) increases in operating Expemses: Tenant shall pay to Landlord as
additional rent during the term of this Lease Thirteen point Five Five percent
(13.55%) of the amount by which the annual Operating Expenses of the office
Building exceed the operating Expenses incurred by Landlord during the calendar
year 1999 (the "Base Year"). As used herein, the term "Operating Expenses" shall
include all direct costs of operation, maintenance, and management of the
Building that are properly allocable to the office Building and which are
determined by generally accepted accounting practices. By way of.illustration,
but not limitation, Operating Expenses shall include the cost or charges for the
following items: heat, light, water, power and steam, environmental surcharges
imposed by any governmental entity, waste disposal, janitorial services, window
cleaning, air conditioning, materials and supplies, equipment and tools, service
agreements on equipment, insurance, licenses, permits and inspections, wages and
salaries,
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employee benefits and payroll taxes, accounting and legal expenses, management
fees, landscaping and exterior maintenance, depreciation on personal property
including, without limitation, window draperies provided by Landlord and
carpeting in public corridors and common areas, the cost of contesting the
validity or applicability of any governmental enactments which may affect
operating expenses, and the reasonably amortized costs of capital improvements
required as a result of government orders rules and regulations. For the
purposes of this Lease, Operating Expenses shall not include taxes covered under
sub-paragraph (b) below, interest expense, leasing comissions, depreciation on
the Building itself, or the cost of capital expenditures, provided, however,
that in the event Landlord makes capital improvements which have the effect of
reducing operating expenses, Landlord may amortize its investment in said
improvements as an operating expense in accordance with standard accounting
practices provided that such amortization is not at a rate greater than the
anticipated savings in the operating expenses. In the event that less than
ninety-five percent (95%) of the office Building is occupied during any calendar
year, all Operating expenses on the statements provided by Landlord shall be
adjusted for each calendar year to equal Landlord's reasonable estimate of
operating Expenses had ninety-five percent (95%) of the total rentable area of
the office Building been occupied. Statements of operating Expenses provided by
Landlord shall- be final and binding upon both Landlord and Tenant. Landlord and
Tenant acknowledge that certain of the costs and charges of operation,
maintenance, and management of the Building and certain of the costs and charges
are to be allocated among the Office Building, the retail building and the
parking garage or parking areas. The determination of such costs and charges and
their allocation shall be in accordance with generally accepted accounting
principles, consistently applied. *See attached Addendum item #13.
(b) Increases in Taxes: Tenant shall pay to Landlord as additional rent
during each tax year (July I through June 30) or part thereof during the term of
this Lease subsequent to the tax year 1999 (the "Base Tax Year"), Thirteen Point
Five Five percent (13.55%) of the total dollar increase, if any, in real and
personal property taxes (and any tax levied wholly or partly in lieu thereof)
levied by any governmental authority (local, state. or Federal) against the
Building and any personal property used in its operation for each such tax year
over such taxes for the base tax year. The term "Taxes" shall include all real
property taxes and assessments on the Building, the Parcel of land underlying
and surrounding the Building, and the various estates in the Building and the
land.
(c) Manner of Payment of Any increase in Operating Expenses and Taxes:
During December of each calendar year or as soon thereafter as practicable,
Landlord shall give Tenant written notice of Landlord's estimate of the
additional rent, if any, payable under this Paragraph 5 for the ensuing calendar
year. On or before the first day of each month during the ensuing calendar year,
Tenant shall pay to Landlord one-twelfth (1/12th) of such estimated additional
rent, provided that if such notice is not given in December, Tenant shall
continue to pay on the basis of the prior year's estimate until the month after
such notice is given. If at any time it appears to Landlord that the additional
rent payable under this Paragraph 5 for the current calendar year will vary from
its estimate by more than ten percent (10%), Landlord shall, by
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written notice to Tenant, revise its estimate for such year, and subsequent
payments by Tenant for such year shall be based upon such revised estimate.
(d) Annual Statement and Adjustments: On or before ninety (90) days
after the end of each calendar year, or as soon thereafter as practicable
Landlord shall deliver to Tenant a statement of additional rent payable under
this Paragraph 5 f or the preceding calendar year. If such statement shows an
amount that is less than the estimated payments made by Tenant for such calendar
year, it shall be accompanied by a refund of the excess by Landlord to Tenant,
or, at Landlord's election, by a notice that Landlord shall credit the excess to
the next succeeding monthly installment of rent. If such statement shows an
amount that is more than the estimated payments made by Tenant f or such
calendar year, Tenant shall pay the deficiency to Landlord within thirty (30)
days after delivery of such statement.
(e) If, for any reason other than the default of Tenant, this Lease
shall terminate on a day other than the last day of a calendar Year, the
additional rent payable by Tenant applicable to the calendar year in which such
termination shall occur shall be prorated according to the ratio that the number
of days from the commencement of such calendar year to and including such
termination date bears to three hundred sixty-five (365).
6. TAXES PAYABLE BY TENANT
(a) In addition to the rent and additional rent and other charges to be
paid by Tenant under this Lease, Tenant shall reimburse Landlord upon demand for
any and all taxes required to be paid by Landlord (excluding state, local or
federal personal and corporate income taxes measured by the income of Landlord
from all sources and estate and inheritance taxes), whether or not now customary
or within the contemplation of the parties hereto, when:
(i) said taxes are measured by or reasonably attributable to
the cost or value of Tenant's equipment, furniture, fixtures and other personal
property located in the Premises or by the cost or value of any leasehold
improvements made in or to the Premises by or for Tenant, regardless of whether
title to such improvements shall be vested in Tenant or Landlord;
(ii) said taxes are measured by or reasonably attributable to
the rent and additional rent payable hereunder, or either of them, including
without limitation, any gross income tax or excise tax levied by any
governmental entity (local, state or federal) with respect to the receipt of
such rent;
(iii) said taxes are assessed upon or with respect to the
possession, leasing, operation, management, maintenance, alteration, repair, use
or occupancy by Tenant of the Premises or any portion thereof; and
(iv) said taxes are assessed upon this transaction or any
document to which Tenant is a party creating or transferring an interest or an
estate in the Premises.
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(b) In the event that it shall not be lawful for tenant so to reimburse
landlord, the monthly rent payable to Landlord under this Lease shall be revised
to net Landlord the same net rent after imposition of any such tax upon Landlord
as would have been payable to Landlord prior to the imposition of any such tax.
All taxes payable by Tenant under this Paragraph 6 shall be deemed to be, and
shall be paid as, additional rent.
7. POSSESSION
If Landlord is unable to give possession of the Premises to TTenant on
or before the Commencement Date, Landlord shall not be subject to any liability
for the failure to deliver possession on said date, and such failure shall not
affect the validity of this lease nor the obligations of Tenant hereunder, but
the term hereof shall commence on the earlier of (a) ten (10) days following the
day that Landlord gives Tenant written notice that the installations to be made
by Landlord in accordance with the Agreement for Completion of Premises attached
hereto as Exhibit "B" have been substantially completed; or (b) the day that
Tenant first occupies the Premises, whichever first occurs, and the express
expiration date set forth above shall be extended by that amount of time between
the Commencement Date and the date the term hereof actually commences. If
permission is given to Tenant to occupy the Premises prior to the Commencement
Date, such occupancy shall be subject to all of the Provisions of this lease
including the payment of rent and, if the term hereof commences on a date later
than the Commencement Date pursuant to the provisions set forth above, the
parties hereto agree to execute and acknowledge a written statement setting
forth the date of commencement and the date of expiration of this lease, but
this lease shall not be affected in any manner should either party fail or
refuse to execute such statement. (See Section 36. General Provisions pg. 25
under (s) for definition of "substantial completion.")
8. USE OF PREMISES
(a) The premises shall be used and occupied for xxxx Call Center and
General- Office and for no other purposes without the prior written consent of
Landlord. Any unauthorized use shall be a breach of this Lease. Tenant, its
employees, agents, customers and invitees are hereby granted the nonexclusive
use of the common corridors and hallvays, stairwells, elevators, rest rooms and
other generally understood Public or common areas of the Building; provided,
however, that Landlord reserves the right to regulate or restrict the use of any
such public or common areas, whether or not specifically set f xxxx above.
Tenant shall not use the Premises or allow the Premises to be used so as to
create waste or constitute a nuisance, or disturb other tenants located in the
building.
(b) Landlord reserves the right from time to time without unreasonable
interference with Tenant's use of the Premises to alter or relocate any common
facilities, to expand the Building, and to install, use, maintain, repair, and
replace pipes, ducts, conduits, wires, and appurtenant meters and equipment for
service to other parts of the Building above the ceiling surfaces, below the
floor surf aces, within the wall, and in the central core areas, and to relocate
any pipes, ducts,
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conduits, wires, and appurtenant meters and equipment included in the Premises
which are located in the Premises or located elsewhere outside the Premises.
(c) Tenant shall not do or permit anything to be done in or about the
Premises that will in any way obstruct or interfere vith the rights of other
tenants or occupants of the Building or injure or annoy them, or use or allow
the Premises to be used for any unlawful or objectionable purpose. Tenant shall
not cause, maintain or permit xxxxxxxx.xx be done in or about the Premises nor
bring or keep anything therein that will in any way increase the existing rate
or affect any fire or other insurance upon the Building or any of its contents,
or cause a cancellation of any insurance policy covering said Building or any
part thereof or any of its contents, nor shall Tenant sell or permit to be
kept,. used, or sold in or about said Premises any articles that may be
prohibited by a standard form policy of fire insurance. Tenant shall not use or
keep in the Premises or the Building any kerosene, gasoline, or any inflammable
combustible or explosive fluid, chemical, or substance, or use any method of
heating or air conditioning other than that supplied by Landlord. Tenant shall
bear any increased insurance costs resulting from a breach of this covenant and
shall upon written demand from Landlord cease any activity prohibited hereunder.
(d) Tenant shall not place anything or allow anything to be placed near
the glass of any window, door, partition, or wall that may appear unsightly from
outside the Premises. No awnings or other projection shall be attached to the
outside walls of the Building without the prior written consent of the Landlord.
No curtains, blinds, shades, or screens shall be attached to or hung in, or used
in connection with any window or door of the Premises without the prior written
consent of Landlord.
(e) Tenant shall not use, keep, or permit to be used or kept any food
or noxious gas substance in the premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to other occupants of
the Building by reason of noise, odors, and vibrations, or interfere in any way
with other tenants or those having business therein, nor shall animals or birds
be brought in or kept in or about the Premises or the Building. Tenant shall not
make or permit to be made any unseemly or disturbing noises or disturb or
interfere with occupants of the neighboring buildings or premises of those
having business with them whether by the use of any music instrument, radio,
phonograph, unusual noise, or in any other way. Tenant shall not throw anything
out of doors or down the passageways.
(f) Tenant shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate to prevent such activity by others.
(g) No vending machine or machines of any description shall be
installed, maintained, or operated upon the Premises without the written consent
of Landlord.
(h) Tenant shall see that the windows and doors of the Premises are
closed and securely locked before leaving the Building. Tenant must observe
strict care and caution that all water faucets or other apparatus are entirely
shut off before Tenant or Tenant's employees leave the
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Building, and that all electricity, gas, or air shall likewise be carefully shut
off so as to prevent waste or damage, and for any default or carelessness,
Tenant shall make good all injuries sustained by other Tenants or occupants of
the Building or Landlord.
9. SECURITY DEPOSIT
Tenant has, upon execution of this lease and concurrently therewith,
deposited with Landlord the sum of Seventeen Thousand Eight Hundred Ninety
Dollars ($17,890.00) as security for the full and faithful performance of every
provision of this Lease to be performed by Tenant. If Tenant defaults with
respect to any provision of this Lease, including but not limited to the
provisions relating to the payment of rent, Landlord may use, apply, or retain
all or any part of this security deposit for the payment of any rent or any
other sum in default, or for the payment of any other amount which Landlord may
spend or become obligated to spend by reason of tenants default. If any portion
of said deposit is so used or applied, Tenant shall, within five (5) days after
written demand thereof, deposit cash with Landlord in an amount sufficient to
restore the security deposit to its original amount, and Tanant's failure to do
so shall be a breach of this Lease. Landlord shall not be required to keep this
security deposit separate from its general funds and Tenant shall not be
entitled to interest on such deposit. If Tenant shall fully and faithfully
perform every provision of this Lease to be performed by it, the security
deposit or any balance thereof shall be returned to Tenant (or, at Landlord's
option, to the last transferee of Tenant's interest hereunder) within a
reasonable time after both the expiration of the lease term and the Tenant's
delivery of the Premises to Landlord, provided, however, that Landlord may
retain the security deposit, until such time as any amount due from Tenant in
accordance with Article 5 hereof has been determined and paid in full.
10. ASSIGNMENT, SUBLETTING, AND ENCUMBERING
(a) Tenant shall not, either voluntarily or by operation of law,
assign, transfer, mortgage, pledge, hypothecate, or encumber this Lease or any
interest herein and shall not sublease the said Premises or any part thereof, or
any right or privilege appurtenant thereto, or suffer any other persons (agents
and servants of Tenant excepted) to occupy or use said Premises or any portion
thereof without the written consent of Landlord first had and obtained, and any
such act done or suffered without first obtaining Landlord's written consent
shall be void, and shall, at the option of Landlord, terminate this Lease.
(b) Tenant shall, by written notice, advise Landlord of its intention
from and after a stated date (which shall not be less than ninety (90) days nor
more than one hundred eighty (180) days after the date- of Tenant's notice) to
sublet the Premises or any portion thereof for any part of the term hereof and
in such event Landlord shall have the right, to be exercised by giving written
notice to Tenant thirty (30) days after receipt of Tenant's notice, to terminate
this Lease as to the portion of the Premises described in Tenant's notice, and
such notice by Landlord shall, if given, terminate this Lease with respect to
the portion of the Premises therein described as of the date stated in Tenant's
notice. Said notice by Tenant shall state the name and address of the proposed
subtenant, and Tenant shall deliver to Landlord a true and complete copy of the
proposed sublease with said notice. If said notice shall specify less than all
of the Premises and Landlord shall give said termination notice with respect
thereto, this Lease shall terminate pursuant to the
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foregoing with respect to less than all the Premises, the rent, the Operating
Expenses and the direct taxes as defined and reserved hereinabove shall be
adjusted on a pro rata basis to the number of square feet retained by Tenant,
and this Lease as so amended shall continue thereafter in full force and effect.
If Landlord, upon. receiving said notice by tenant with respect to any of the
Premises, shall not exercise right to terminate, Landlord will not unreasonably
withhold its consent to Tenant's subletting the Premises specified in said
notice, and landlord shall be entitled to 5O% of any additional rent paid by
subtenant over and above the base rent.
(c) Regardless of Landlord's consent, no subletting or assignment shall
release Tenant from its obligation to perform the terms, covenants and
conditions of this Lease. Furthermore, as a condition to Landlord's prior
written consent, the subtenant or assignee shall agree in writing to comply with
and be bound by all the terms, covenants and conditions of this lease, and
Tenant shall deliver to Landlord, promptly after execution thereof, an executed
copy of each such sublease and assignment. The acceptance of rent by Landlord
from any party other than Tenant shall not be deemed to be a waiver of any
provision of this Lease. Furthermore, Landlord's consent to one assignment,
transfer, mortgage, pledge, hypothecation, encumbrance, subletting, occupation
or use shall not be deemed to be a consent to any subsequent occurrence thereof.
See Addendum I, #9
11. MAINTENANCE AND REPAIR
(a) Landlord shall repair and maintain the structural portions of the
Building in which the Premises are situated, including the exterior walls,
underflooring and roof, basic plumbing, heating, air conditioning and electrical
systems installed or furnished by Landlord, unless such maintenance and repair
become necessary in whole or in part due to the act, neglect, fault or omission
of any duty by the Tenant, its employees, agents, customers or invitees, or due
to damage caused by a breaking and entering, in which case Tenant shall pay to
Landlord the reasonable cost of such maintenance and repair. Landlord shall not
be liable for any failure to make any repair or to perform any maintenance
unless such failure shall persist for an unreasonable time after written notice
of the need for such repair or maintenance is given to Landlord by Tenant. There
shall be no abatement of rent and no liability of Landlord by reason of any
injury to Tenant's business or interference with Tenant's business arising from
the making of any repairs, alterations or improvements to any portion of such
Building or to fixtures, appurtenances and equipment therein. At time of
occupancy, lighting, electrical outlets and HVAC shall be in proper working
order.
(b) Tenant shall keep the Premises and every part thereof in good and
sanitary condition and repair, and Tenant's taking possession of the Premises
shall constitute Tenant's acknowledgment that the Premises are in good and
tenantable condition, and Tenant agrees to surrender the Premises upon the
expiration or termination of this Lease with said appurtenances in the same
condition as when received, reasonable wear and tear and damage by fire,
earthquake, Act of God or the elements excepted. Landlord has no obligation to
alter, add to, improve, repair, remodel or paint the Premises except as
specified herein. Tenant also acknowledges that Landlord has made no
representation or warranty regarding the condition of the Premises or the
Building except as set forth herein. Should any standard or regulation now or
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hereafter be imposed on Landlord or Tenant by any governmental body, state or
federal or local charged with the establishment, regulation and enforcement of
occupational, health or safety standards for employers, employees, landlords or
tenants, then Tenant agrees, at its sole cost and expense to comply promptly
with such standards or regulations.
12. SERVICE AND UTILITIES
(a) Provided Tenant is not in breach hereof, Landlord agrees to furnish
to the Premises during reasonable hours of generally recognized business days,
to be determined by Landlord at its sole discretion, and subject to the Rules
and Regulations of the Building (Exhibit C) of which the Premises are part,
electricity for normal lighting and fractional horsepower office machines, heat
and air conditioning required in Landlord's judgement for the comfortable use
and occupation of the Premises, and janitorial service. Landlord shall also
maintain and keep lighted the common stairs, common entries and toilet rooms in
the Building. Landlord shall not be liable for, and Tenant shall not be entitled
to, any reduction of rental by reason of Landlord's failure to furnish any of
the foregoing when such failure is caused by accident, breakage, repairs,
strikes, lockouts or other labor disturbances or disputes of any character, or
by any other cause, similar or dissimilar, beyond the reasonable control of
Landlord, or by rationing or restrictions on the use of said services and
utilities due to energy shortages or other causes, whether or not any of the
above result from acts or omissions of Landlord. Landlord shall be entitled to
cooperate voluntarily in a reasonable manner with the efforts of national, state
or local governmental bodies or utilities suppliers in reducing energy or other
resources consumption. Furthermore, Landlord shall not be liable under any
circumstances for a loss-or injury to property, however occurring, through or in
connection with or incidental to failure to furnish any.of the foregoing. *See
Addendum I #11.
(b) Tenant shall not, without Landlord's prior written consent, which
shall not be unreasonably withheld, use heat generating machines or equipment or
lighting other than Building Standard lights in the Premises which affect the
temperature otherwise maintained by the air conditioning system. If such consent
is given, Landlord shall have the right to install supplementary air
conditioning units in the Premises, and the cost thereof, including the cost of
installation, operating and maintenance thereof, shall be paid by Tenant to
Landlord upon billing by Landlord. Said cost shall include the cost of
electrical metering necessary to determine the additional operating cost
attributable to the supplementary equipment. Tenant shall not, without
Landlord's prior vritten consent, install lighting requiring power in excess of
that required for normal office use in the building or install equipment
requiring power in excess of that required by normal desk-top office equipment.
If such consent is given, Tenant shall pay Landlord upon billing for the cost of
such excess. All costs payable by Tenant under this Paragraph shall be deemed to
be, and shall be paid as, additional rent.
(c) Tenant shall not employ any person or persons other than the
janitorial service designated by Landlord from time to time for the purpose of
cleaning the Premises unless otherwise agreed to by Landlord. Except with the
written consent of Landlord, no person or persons other than those approved by
Landlord shall be permitted to enter the Building for the purpose of cleaning
the same. Tenant shall not cause any unnecessary labor by reason of its
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carelessness or indifference in the preservation of good order and cleanliness.
Landlord shall in no way be responsible to any Tenant for any loss of property
on the Premises, however occurring, or for any damage done to the effects of any
Tdnant by the janitor or any other employee or any other person. Janitor service
shall include ordinary dusting and cleaning by the janitor assigned to do such
work and shall not include cleaning of carpets or rugs, except normal vacuuming,
or moving of furniture and other special services. Janitor service will not be
furnished on nights when rooms are occupied after 7:30 p.m. or to rooms that are
locked. Window cleaning shall be done only by Landlord at Landlord's discretion
and only between 6:00 a.m. and 5:00 p.m.
(d) On Saturdays, Sundays, and legal holidays, and on other days
between the hours of 6:00 p.m. and 7:00 a.m. the following day, access to the
Building, to the halls, corridors, elevators, or stairways in the Building, or
to the Premises shall be restricted. Tenant may make arrangements with Landlord
to allow access, in which case tenant shall be responsible for seeing that the
access doors are properly locked after entry and exit during these hours.
Landlord shall in no case be liable for damages for any error with regard to the
admission to or exclusion from the Building of any person. In case of invasion,
mob, riot, public excitement, or other commotion, Landlord reserves the right to
prevent access to the Building during the continuance of the same by closing the
doors or otherwise, for safety of Tenants and protection of property in the
Building and the Building. Landlord reserves the right to close and keep locked
all entrance and exit doors of the Building on Saturdays and Sundays and legal
holidays, and on other days between the hours of 6:00 p.m. and 7:00 a.m., and
during such further hours as Landlord may deem advisable for the adequate
protection of said Building and the property therein.
(e) The requirements of Tenant will be attended to only upon
application to the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of their regular duties unless under
special instructions from Landlord and no employee will admit any person (Tenant
or otherwise) to any office without specific instructions from Landlord.
(f) Tenant agrees that it shall comply with all fire and security
regulations that may be issued from time to time by Landlord, and Tenant also
shall provide Landlord with the name of a designated responsible employee to
represent Tenant in all matters pertaining to such fire or security re
regulations.
(g) Landlord shall furnish heating and air conditioning during normal
business hours (7:00 a.m. to 6:00 p.m.), excluding Saturdays, Sundays, and legal
holidays. In the event Tenant requires heating and air conditioning during hours
other than these, normal business hours, Landlord shall, upon seven (7) days
written notice, provide such service at Tenant's expense in an amount to be
agreed upon before said service is provided by Landlord.
(h) Tenant shall pay for prior to delinquency, all telephone and all
other materials, utilities, and services not expressly the obligation -of
Landlord that are furnished to or used on or about the Premises during the term
of this Lease.
12
(i) Electric wires, telephones, telegraphs, or other electric apparatus
other than those installed by Landlord at the time Tenant occupies the Premises
shall not be installed in the Premises, except with the approval of Landlord,
and no such installation is to be made without first obtaining written
permission from Landlord to do such vork. Any installation of telephones,
telegraphs, electric wires, or other electric apparatus made without permission
shall be removed by Tenant at Tenant's own expense. No machines other than
standard office machines such as personal computers, word processors,
typewriters and calculators shall be used in the Premises vithout the approval
of Landlord. Tenant will not, vithout Landlord's prior written consent, install
or use any apparatus or device in the Premises that require in excess of 110
volts, or that in the total overload the Building's electrical system in
Landlord's reasonable opinion, or that will in any way increase the amount or
quality of electricity or water usually furnished or supplied for use of the
Premises as general office space, nor shall Tenant connect with electric
current, except through existing electrical outlets in the Premises, or water
pipes, any apparatus or device for the purposes of using electrical current or
water.
13. COMPLIANCE WITH LAW
Tenant shall not do anything-or suffer anything to be done in or about
the Premises which will in any way conflict with any law, statute, ordinance or
other governmental rule, regulation or requirement now in force or which may
hereafter be enacted or promulgated. At its sole cost and expense, Tenant shall
promptly comply with all said governmental measures and also with the
requirements of any board of fire underwriters or other similar body now or
hereafter constituted to deal with the condition, use or occupancy of the
Premises, excluding structural changes not related or affected by Tenant's
alterations, additions or improvements or Tenant's acts. The judgment of any
court of competent jurisdiction or the admission of Tenant in any judicial
action, regardless of whether Landlord is a party thereto, that Tenant has
violated any of the said governmental measures or requirements shall be
conclusive of that fact as between Landlord and Tenant.
14. ALTERATIONS
(a) Tenant shall make no alterations, decorations, additions or
improvements in or to the Premises without Landlord's prior written consent, and
then only by contractors or mechanics approved by Landlord. All such work shall
be done at such times and in such manner as Landlord may from time to time
designate. Tenant covenants and agrees that all work done by or pursuant to the
direction and instruction of Tenant shall be performed in full compliance with
all laws, rules, orders, ordinances, directions, regulations and requirements of
all governmental agencies, offices, departments, bureaus, and boards having
jurisdiction, and in full compliance with the rules, orders, directions,
regulations and requirements of the Pacific Fire Rating Bureau, and of any
similar body. Before commencing any work, Tenant shall give landlord at least
five (5) days written notice of the proposed commencement of such work and
shall, if required by Landlord, secure at Tenant's own cost and expense, a
completion and lien indemnity bond, satisfactory to Landlord, for said work.
Tenant further covenants and agrees that any mechanic's lien filed against the
Premises or against the Building for work claimed to have been done for, or
materials claimed to have been furnished to Tenant, will be discharged by
Tenant, by bond or otherwise, within ten (10) days after the filing thereof, at
the cost and expense of Tenant.
13
Landlord shall have the right at all times to post notices of non-responsibility
on the Premises and record verified copies thereof in connection with all work
of any kind upon the Premises. All alterations, decorations, additions or
improvements upon the Premises, made by either party, including (without
limiting the generality of the foregoing) all wallcovering, draperies, floor
coverings, built-in cabinet work, paneling and the likes shall, unless Landlord
elects otherwise, become the property of Landlord, and shall remain upon, and be
surrendered with the Premises, as part thereof, upon expiration or sooner
termination of the term of this Lease, except that Landlord may, by written
notice to Tenant, given at least thirty (30) days prior to the end of the term,
require Tenant to remove all partitions, counters, railings, and the like
installed by or pursuant to the direction and instruction of Tenant, and Tenant
shall repair the Premises or, at Landlord's option, shall pay to the Landlord
all costs arising from such removal.
(b) All articles of personal property and all business and trade
fixtures, machinery and equipment, furniture and movable partitions owned by
Tenant or installed by Tenant at its expense in the Premises shall be and remain
the property of Tenant and may be removed by Tenant at any time during the lease
term when Tenant is not in default hereunder. If Tenant shall fail to remove all
of its effects from said Premises upon termination of the Lease for any cause
whatsoever, Landlord may, at its option, remove the same in any manner that
Landlord shall choose, and store said effects without liability to Tenant for
loss thereof, and Tenant agrees to pay Landlord upon demand any and all expenses
incurred in such removal, including court costs and attorneys' fees and storage
charges on such effects for any length of time that the same shall be in
Landlord's possession, or Landlord may, at its option, without notice, sell said
effects, or any of the same, at private sale and without legal process, for such
prices as Landlord may obtain and apply the proceeds of such sale upon any
amounts due under the Lease from Tenant to Landlord and upon the expense
incident to the removal and sale of said effects.
15. LIENS
Tenant shall keep the Premises, the building, and the property upon
which the Building is situated, free from any liens arising out of the work perf
ormed, materials furnished, or obligations incurred by Tenant.
16. FIRE AND CASUALTY INSURANCE
(a) At Landlord's option, Landlord may maintain during the term of this
lease a policy of insurance insuring the Building against loss by or damage due
to fire and other casualties covered by a standard extended coverage policy.
Such coverage may include the risks of lightning, vandalism and malicious
mischief, and it may include, at the option of Landlord, the risks of
earthquakes and additional hazards. Such policy may also include, at Landlord's
option, a rental loss endorsement and one or more loss payee endorsements in
favor of the holders of any mortgages or deeds of trust encumbering the
interests of Landlord under this Lease.
(b) Tenant shall not use the Premises nor permit the Premises to be
used or acts to be done therein which will (i) increase the premium of any
insurance described above or (ii) cause- a cancellation of any such insurance
policies. Tenant shall not keep in or about the Premises any article which may
be prohibited by any standard form policy of fire insurance. If Tenant's
14
conduct or use of the Premises causes any increase in the premium for such
insurance policies, then Tenant shall pay as additional rent hereunder all of
such increase. Tenant shall, at Tenant's expense, comply with all insurance
company requirements pertaining to the use of the Premises so that the Premises
shall at all times be insurable for fire, extended coverage and the risks
specified above.
17. DAMAGE AND DESTRUCTION
If the Premises or the Building are damaged by fire or other casualty,
Landlord shall forthwith repair the same, subject to the provisions of the
paragraph 16, provided such repairs can, in Landlord's opinion, be made within
one hundred twenty (120) days of such damage, and in such event this Lease shall
remain in full force and effect. If such repairs cannot, in Landlord's opinion,
be made within one hundred twenty (120) days of such damage, Landlord at its
option shall give written notice to Tenant vithin sixty (60) days after the date
of such damage either (1) elect to repair or restore such damge, this Lease
continuing in full force and effect or (2) terminate this Lease as of a date
specified in such notice, which date shall not be less than thirty (30) nor more
than sixty (60) days after the date such notice is given. If such fire or other
casualty shall have damaged the Premises or common areas necessary to Tenant's
occupancy, and if such damage is not the result of the negligence or willful
misconduct of Tenant orTenant's employees, contractors, licensees, or invitees,
then during the period the Premises are rendered unusable by such damage Tenant
shall be entitled to a reduction in rent in the proportion that the area of the
Premises rendered unusable by such damage bears to the total area of the
Premises. Landlord shall not be required to repair any injury or damage or to
make any repairs or replacements of any improvements installed on the premises
by or for Tenant, other than Landlord's work under Exhibit B, and Tenant shall,
at Tenant's sole cost and expense, repair and restore its portion of such
improvements. Tenant shall not be entitled to any compensation or damages from
Landlord for damage to any of Tenant's fixtures or personal property, for loss
of use of the Premises or any part thereof, for any damage to Tenant's business,
or for any disturbance to Tenant caused by any casualty or the restoration of
the Premises following such casualty. Notwithstanding anything to the contrary
contained in this Lease, Landlord shall have no obligation whatsoever to repair,
reconstruct or restore the Premises when the damage resulting from any casualty
occurs during the last twelve (12) months of the term or any extension thereof.
A total destruction of the Building shall automatically terminate this Lease.
*SEE ADDENDUM I #15
18. PUBLIC LIABILITY INSURANCE
Tenant agrees to purchase at its own expense and to keep in force
during the term of this Lease a policy or policies ofcomprehensive liability
insurance,including public liability and property damage, in the amount of Five
Hundred Thousand Dollars ($500,000) for property damage and Five Hundred
Thousand Dollars ($500,000) per person and One Million Dollars ($1,000,000) per
occurrence for personal injuries or deaths of persons occurring in or about the
Premises. Said policy or policies shall: (a) name Landlord as an additional
insured and insure Landlord's contingent liability under this Lease; (b) be
issued by an insurance company which is acceptable to landlord and licensed to
do business in the State of California; and (c) provide that said insurance
shall not be cancelled unless ten (10) days' prior written notice shall have
been
15
given to Landlord. Said policy or policies or certificates thereof shall be
delivered to landlord by Tenant upon commencement of the term of this Lease and
upon each renewal of said insurance.
19. SUBROGATION
Landlord and Tenant hereby waive any right that each may have against
the other on account of any loss or damage arising in any manner which is
covered by policies of insurance for fire and extended coverage, theft, public
liability, workmen's compensation or other insurance now or hereafter existing
during the term hereof. The parties each agree to have their respective
insurance companies waive any rights of subrogation that such companies may havo
against landlord or Tenant, as the case may be.
20. EMINENT DOMAIN
If the whole of Premises or more than fifty percent (50%) of the
rentable area thereof is taken under power of eminent domain or sold,
transferred or conveyed in lieu thereof, both Landlord and Tenant shall have the
right to terminate this Lease as of the date of such condemnation or as of the
date possession is taken by the condemning authority, whichever is later. If any
part of the Building other than the Premises is taken under power of eminent
domain or sold, transferred or conveyed in lieu thereof, Landlord may terminate
this Lease at its option as of the date of such condemnation or as of the date
possession is taken by the condemning authority, whichever is later. In either
of such events, Landlord shall receive, and Tenant hereby assigns to Landlord,
any award which may be made in such taking or condemnation, together with any
and all rights of Tenant now or hereafter arising in or to the same or any part
thereof whether or not attributable to the value of the unexpired portion of
this Lease; provided, however, that nothing contained herein shall be deemed to
give Landlord any interest in or require Tenant to assign to Landlord any award
made payable to Tenant for the taking of personal property and fixtures
belonging to Tenant and removable by Tenant at the expiration of the term hereof
or for the interruption of or damage to Tenant's business in the event of a
partial taking, or a sale, transfer, or conveyance in lieu thereof, if this
Lease is not terminated by Landlord and/or Tenant, then the rent shall be
apportioned according to the ratio that the remaining rentable area of the
Premises bears to the total rentable area of the Premises.
21. INDEMNFIICATION OF LANDLORD
(a) Tenant hereby waives all claims against Landlord for damage to any
property or injury, illness or death of any person in, upon, or about the
Premises and/or the Building arising at any time and from any cause whatsoever
other than solely by reason of gross negligence or willful act of Landlord, its
employees or contractors.
(b) Tenant shall hold Landlord harmless from and defend Landlord
against any and all claims or liability for any injury or damage to any person
or property whatsoever: (1) occurring in, on or about the Premises or any part
thereof, and (2) occurring in, on or about any facilities (including, without
prejudice to the generality of the term "facilities," elevators, stairways,
passageways, hallways and parking areas), the use of which Tenant may have in
common with other tenants of the Building, when such injury or damage shall be
caused in part or in whole by the act, neglect, fault of or omission of any duty
with respect to the same by Tenant, its agents,
16
employees, customers or invitees. The provisions of this paragraph shall survive
the expiration or termination of the Lease with respect to any claims or
liability occurring prior to such expiration or termination. * SEE ADDENDUM I
#12
22. ENTRY BY LANDLORD
Landlord reserves the right at reasonable business hours and upon
reasonable notice to Tenant to enter the Premises to (1) inspect them, (2)
perform services required of Landlord, (3) take possession due to any breach of
this Lease as stated earlier, (4) submit the Premises to prospective purchasers,
mortgagees or tenants (5) post notices of non-responsibility, and (6) alter,
improve or repair the Premises as Landlord deems necessary or desirable.
Landlord may make such entries vithout the abatement of rent and may take such
reasonable steps as required to accomplish the stated purposes. Tenant hereby
waives any claims for damages or for any injuries or inconveniences of
interference with Tenant's business, any loss of occupancy or quiet enjoyment of
the Premises, and any other loss occasioned thereby. Landlord to provide 48 hour
notice for entry except in any emergency.
23. DEFAULT
The occurrence of any of the following shall constitute a material default and
breach of this Lease by Tenant:
(a) Any failure by Tenant to pay the rent or any other monetary sums
required to be paid hereunder (where such failure continues for three (3)
business days after receipt of written notice by Landlord to Tenant;
(b) The vacation of the Premises by Tenant;
(c) A failure by Tenant to observe and perform any other provision of
this lease to be observed or performed by Tenant, where such failure continues
for three (3) days after written notice thereof by Landlord to Tenant;
(d) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; the filing by or against Tenant of a
petition to have Tenant adjudged a bankrupt (unless, in the case of a petition
filed against Tenant, the same if dismissed within sixty (60) days); the
appointment of a trustee or receiver to take possession of substantially all of
Tenant's assets located at the Premises or of Temant's interest in this Lease,
where possession is not restored to Tenant within thirty (30) days; or the
attachment, execution or other judicial seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease, where such
seizure is not discharged within thirty (30) days.
24. REMEDIES
In the event of any such material default or breach by Tenant, Landlord
may at any time thereafter, without limiting Landlord in the exercise of any
right of remedy at law or in equity which Landlord may have by reason of such
default or breach:
17
(a) Terminate the Lease and recover damages as provided by California
Civil Code Section 1951.2, including but not limited to recovery of 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 rental loss for the same
period that the Tenant proves could have been reasonably avoided, as computed
pursuant to subsection (b) of Section 1951.2;
(b) Continue the Lease in effect and to enforce all of its rights and
remedies under the Lease, as provided by California Civil Code Section 1951.4,
including the right to recover rent as it becomes due, for so long as Landlord
does not terminate Tenant's right to possession. Acts of maintenance or
preservation efforts to re-let the Premises, or the appointment of a receiver
upon Landlord's initiative to protect its interest under this Lease shall not
constitute a termination of Tenant's right to possession;
(c) Enter the Premises and remove therefrom all persons and property,
store such property in a public warehouse or elsewhere at the cost of and for
the account of Tenant, and sell such property and apply the proceeds therefrom
pursuant to applicable California law, all as attorney-in-fact for Tenant; and
(d) Have a receiver appointed for Tenant, upon application by Landlord,
to take possession of the Premises and to apply any rental collected from the
Premises and to exercise all other rights and remedies granted to Landlord as
attorney-in-fact for Tenant pursuant to subparagraph (c) above.
25. LATE CHARGES
Tenant hereby acknowledges that late payment by Tenant to Landlord of
rent and other sums due hereunder will cause Landlord 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 Landlord by the
terms of any mortgage or deed of trust covering the Premises. Accordingly, if
any installment of rent or any other sun due from Tenant shall not be received
by Landlord or Landlord's designee withiu five (5)* days after such amount shall
be due, Tenant shall pay to Landlord 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 costs Landlord will incur by reason of late
payment by Tenant. Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount, nor
prevent Landlord from exercising any of the other rights and remedies granted
hereunder. *business
26. LANDLORD'S RIGHT TO CURE DEFAULT
All covenants and agreements to be kept or performed by Tenant under
the terms of this lease shall be performed by Tenant at Tenant's sole cost and
expense and without any reduction of rent. If Tenant shall be in default on its
obligations under this Lease to pay any sum of money other than rent or to
perform any other act hereunder, and if such default is not cured within the
applicable grace.period provided in Patagraph 23 hereof, Landlord may, but shall
not be obligated to, make any such payment or perform any such act on Tenant's
part without waiving
18
its right based upon any default of Tenant and without releasing Tenant from any
obligations hereunder. All sums so paid by Landlord and all incidental costs,
together with interest thereon at the rate of ten percent (10%) per annum from
the date of such payment or the incurrence of such costs by Landlord, whichever
occurs first, shall be paid to Landlord on demand. In the event of non-payment
by Tenant, Landlord shall have, in addition to any other rights or remedies
hereunder, the same rights and remedies as in the case of default by Tenant for
nonpayment of rent.
27. DEFAULT BY LANDLORD
(a) Landlord shall not be in default unless landlord fails to perform
obligations required of Landlord vithin a reasonable time, but in no event later
than thirty (30) days after written notice by Tenant to Landlord and to the
holder of any first mortgage or deed of trust covering the Premises whose name
and. address shall have theretofore been furnished to Tenant in writing,
specifying wherein Landlord has failed to perform such obligations; provided,
however, that if the nature of Landlord's obligation is such that more than
thirty (30) days are required for performance, then landlord shall not be in
default if Landlord commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion. Tenant agrees, however,
that any damages arising out of a money judgment against Landlord shall be
satisfied only out of Landlord' s estate in the Building, and Landlord shall
have no personal liability whatsoever with respect to any such judgment. Tenant
hereby waives, to the extent waivable under law, any right to satisfy said money
judgment against Landlord except from Landlord's estate in the Building. If
Landlord is a partnership, it is understood and agreed that any claims by Tenant
on Landlord shall be limited to the assets of the partnership; furthermore,
Tenant expressly waives any and all rights to proceed against the individual
partners of any partnership which may own the Building or the officers,
directors or shareholders of any incorporated partner or of any corporation
which may own the Building.
28. LANDLORD'S OPTION TO RELOCATE TENANT
None
29. SALE OF PREMISES
Each conveyance of the Premises prior to expiration or termination
hereof by Landlord shall (i) be subject to this lease and (ii) relieve the
grantor of any further obligations or liability as Landlord. Tenant hereby
agrees to attorn to Landlord's successor in interest.
30. ESTOPPEL CERTIFICATES
Within ten (10) days following any written request which Landlord may
make from time to time, Tenant shall execute and deliver to Landlord a statement
certifying: (a) the date of commencement of this Lease; (b) the fact that this
Lease is unmodified and in full force and effect (or, if there have been
modifications hereto, that this Lease is in full force and effect, as modified,
and stating the date and nature of such modifications); (c) the date to which
the rent and other sums payable under this Lease have been paid; (d) the fact
that there are no current defaults under this lease by either Landlord or Tenant
except as specified in Tenant's statement; and (e) such other matters requested
by Landlord. Landlord and Tenant intend that any statement
19
delivered pursuant to this paragraph may be relied upon by any mortgagee,
beneficiary purchaser or prospective purchaser of the Building or any interest
therein.
31. NONMERGER
The termination or mutual cancellation of this Lease shall not work a
merger, and shall, at the option of the Landlord, terminate all subleases and
subtenancies (to the extent same are permitted hereunder) or may, at the option
of Landlord, operate as an assigmment to it of any or all such subleases or
subtanancies.
32. DISCLOSURE
Detectable amounts of chemicals known to the State of California to
cause cancer, birth defects, or other reproductive harm may be found in and
around the building, the premises, and the common areas. A report is on file
with the landlord prepared by the engineering firm of Dames & Xxxxx which states
that the building has been abated of all friable asbestos pursuant to federal
and state regulations as of April 17, 1990. Tenant acknowledges that a copy of
said report has been provided to Tenant.
33. DEMOLITION OF PREMISES
If at any time du:ring the term of this Lease Landlord desires to
demolish the building(s) on the demised premises which existed at the
commencement of the term of this Lease in order to construct a new building or
buildings, or if at any time during the term of this Lease, the buildings on the
demised premises are totally or partially destroyed by fire or other casualty
and Landlord chooses not to reconstruct the existing building, notwithstanding
anything to the contrary contained herein, upon written notice from Landlord,
Tenant shall surrender the premises and Landlord and Tenant hereby mutually
agree that in such circumstances the Lease shall be terminated and be of no
further force or effect. In the event that Landlord desires to demolish the
building(s), Landlord shall give Tenant twelve (12) months written notice of his
intention to demolish and terminate the Lease. In the event that Landlord
constructs a building for similar uses on the subject property, Landlord shall
offer Tenant comparable space in the building(s) upon their completion. Tenant
shall have 30 days to accept or reject said offer. In the event Tenant rejects
said offer, Landlord shall reimburse Tenant for its moving expenses which shall
be limited to reasonable moving costs, reprinting costs for letterhead and
business cards, and telephone installation charges.
34. SUBORDINATION
Without the necessity of any additional document being executed by
Tenant for the purpose of affecting a subordination, this Lease shall be subject
and subordinate at all times to: (a) all ground leases or underlying leases
which may now exist or hereafter be executed affecting the Building or the land
upon which the Building is situated, or both, and (b) the lien of any mortgage
or deed of trust which may now exist or hereafter be executed in any amount for
which said Building, land, ground leases or underlying leases or Landlord's
interest or estate in any of said items is specified as security.
Notwithstanding the foregoing, Landlord shall have the right to subordinate or
cause to be subordinated any such ground leases or underlying leases or any such
liens to this Lease. In the event that any ground lease or underlying lease
terminates for any
20
reason or any mortgage or deed of trust is foreclosed or a conveyance in lieu of
foreclosure is made for any reason, Tenant shall, notwithstanding any
subordination, attorn to and become the Tenant of the successor in interest to
Landlord, at the option of such successor in interest. Tenant covenants and
agrees to execute and deliver, upon demand by Landlord and in the form requested
by Landlord, any additional documents evidencing the priority or subordination
of this Lease with respect to any such ground leases or underlying leases or the
lien of any such mortgage or deed of trust.
35. NOTICES
Notices, requests, demands and documents required or desired to be
given hereunder shall be in writing and delivered either personally or by
deposit into the United States Mail, first class postage prepaid, addressed as
follows or as Landlord or Tenant may from time to time otherwise designate in
writing.
LANDLORD: BROADLAKE PARTNERS
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attn: Xxxx X. Xxxxx
Tenant: VALUESTAR, INC.
000 00xx Xxxxxx, Xxxxxx Xxxxx
0xxxxxx, XX 00000
Attn: Xxx Xxxxx
36. General Provisions
(a) Holding Over: Any holding over after the expiration of the term of
this Lease or any extension thereof with the written consent of Landlord shall
be construed to be a tenancy from month-to-month at the rent, additional rent
and other terms and conditions herein set forth. If Tenant shall retain
possession of the Premises or any part thereof without Landlord's consent
following the expiration or sooner termination of this Lease for any reason,
then Tenant shall pay to Landlord for each day of such retention * the amount of
the daily rent and additional rent for the last period prior to the date of such
expiration or termination. Tenant shall also indemnify and hold Landlord
harmless from any loss or liability resulting from delay by tenant in
surrendering the Premises, including, without limitation, any claims made by any
succeeding tenant founded on such delay. *150%
(b) Waiver: The waiver by Landlord of the breach of any term, covenant
or condition herein contained shall not be deemed to be a waiver of a subsequent
breach of such term, covenant or condition. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent.
21
(c) Rules and Regulations: Tenant shall faithfully observe and comply
with the rules and Regulations attached as Exhibit C to this lease, as modified
by Landlord from time to time in writing. Landlord shall not be responsible to
Tenant for the non-performance of any of said rules and regulations by any other
tenants or occupants of the Building.
(d) Successors and Assigns: This Lease and all of the covenants and
conditions herein contained shall be binding upon and shall inure to the benefit
of the heirs, executors, administrators, assigns and other successors in
interest (to the extent permitted under this Lease) of each of the parties.
(e) Captions: The titles or captions in this Lease are for reference
purposes only and have no effect upon the construction or interpretation of any
part hereof. The use herein of the singular includes the plural and vice versa,
and the use herein of the neuter gender includes the masculine and the feminine
and vice versa, whenever and wherever the context so requires.
(f) Joint obligations: If there is more than one Tenant, the
obligations imposed upon Tenant under this Lease shall be joint and several.
(g) Authority: If Tenant 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 bylaws of said corporation, and that this
Lease is binding upon said corporation in accordance with its terms.
(h) Time: Time is of the essence in the performance of all obligations
under this Lease.
(i) Entire Agreement: This Lease sets forth the entire understanding
between Landlord and Tenant with respect to all matters referred to herein, and
the provisions hereof may not be changed or modified except by an instrument in
writing signed by both Landlord and Tenant. Tenant acknowledges that in
executing and delivering this Lease it is not relying on. any verbal or written
understanding, promise or representation outside the scope of this Lease and not
described or referred to herein.
(j) Attorneys' Fees: If either party commences litigation against the
other for the specific performance of this Lease, for damages for the breach
hereof or otherwise for enforcement of any remedy hereunder, the prevailing
party shall be entitled to recover from the other party such costs and
reasonable attorneys' fees as may have been incurred.
(k) Choice of Law: This Lease is made and delivered within the state of
California and shall be construed and enforced in accordance with the laws of
the state of California.
(l) Effectiveness: Delivery of this Lease duly executed by Tenant,
constitutes an offer to lease the Premises as herein set forth, and under no
circumstances shall such delivery be deemed to create an option or reservation
to lease the premises for the benefit of Tenant. This Lease shall
22
become effective and binding only upon execution hereof by Landlord and delivery
of a signed copy to Tenant.
(m) Severability: If any provision of this Lease or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Lease and the application of such provision to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
(n) Brokers: Tenant warrants that it has had no dealings with any real
estate broker or agent in connection with the negotiation of this Lease
excepting only Xxxxx & Xxxxx / Xxxxx Xxxx and that it knows of no other real
estate broker or agent who is entitled to a commission in connection with this
Lease. Tenant agrees to indemnify Landlord and hold Landlord harmless from and
against any and all claims, demands, losses, liabilities, lawsuits, judgments,
and costs and expenses (including without limitation reasonable attorneys' fees)
with respect to any leasing commission or equivalent compensation alleged to be
owing on account of Tenant's dealings with any real estate broker or agent other
than that specified herein.
(o) Exhibits: Exhibit A (Plan Outlining the Premises), Exhibit B
(WorkAgreement), Exhibit C (Rules and Regulations), and Addendum I are attached
to this Lease and by this reference made a part hereof.
(p) Additional Provisions: The attached pages, if any, containing
Paragraphs __----__ through __----__ are incorporated herein and made a part
hereof. See Addendum I attached hereto and made a part hereof
(q) Force Majeure: Any prevention, delay, or stoppage due to strikes,
lockouts, labor disputes, acts of God, inability to obtain labor or materials or
reasonable substitutes therefor, governmental restrictions, governmental
regulations, governmental controls, enemy or hostile governmental action, civil
commotion, fire or other casualty, and other causes beyond the reasonable
control of the party obligated to Perform, shall excuse the performance by such
party for a period equal to any such prevention, delay, or stoppage, except the
obligations imposed with regard to Rent and other charges to by paid by Tenant
pursuant to this Lease.
(r) All first floor tenants shall be responsible for replacing broken
windows that are part of their premises resulting from vandalism, fire,
accident, robbery or any other cause. Tenant shall be responsible for taking
whatever precautions are necessary to protect their premises. Any actions taken
by tenant which would have visibility from the street or require alterations to
the premises shall require advance written approval from Landlord.
(s) For purposes of this Lease the definition of Substantial Completion
is as follows: Substantial completion of Landlord's work shall be deemed to have
occurred when the remaining work to be done in the Premises will not materially
interfere with Tenant's use of the Premises or access thereto for the normal
conduct of Tenant's business, and the Premises shall be deemed
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substantially completed not-withstanding the fact that minor details of
construction, mechanical adjustment, or decoration remain to be performed.
IN WITNESS WHEREOF, this Lease has been executed as of the date set forth at the
beginning hereof.
BroadLake Partners, a CA Limited Partnership TENANT: VALUESTAR, INC.
By: Cragganmore Partners,a CA Limited Partnership
Its General Partner -
By: Macallan Invesments, Inc., BY: /s/ Xxxxx Xxxxx
By: /s/ Xxxx X. Xxxxx, President ---------------
---------------------------- Name: Xxxxx Xxxxx
Name: Xxxx X. Xxxxx Its Managing Director
& President
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EXHIBIT B
WORK AGREEMENT
The Landlord shall provide the following Tenant Improvements at no cost to the
Tenant:
1. Upon request by Tenant, "window line" offices shall have door closers
removed or adjusted to be non-operational that are located in the
southeast suite.
2. The Landlord shall install a double door entry - the location will be
as shown on the attached Exhibit, unless Tenant notifies Landlord of a
different location within one (1) week of Lease execution.
3. The Landlord shall provide one (1) standard lobby directory sign, one
(1) elevator lobby sign and one (1) office suite sign. Signage shall be
of Building standard.
4. Landlord to install a hallway door in the Call Center area at the end
of the west hallway (22nd street exit). The hardware shall be Building
standard.
5. Call Center wall is to be fully extended from the existing sheer wall
shown on the attached plan.
6. In the southeast area, demise the existing hallway along the southeast
wall. Remove the wall and the office adjacent to the sheer wall.
Eliminate three (3) offices and the storage room. Leave two (2) offices
with bullpen access. Permanently lock off three (3) doors providing the
hallway access to the easterly office and demolished offices. All as
shown on the attached plan.
7. Install one (1) exit door at the northeast end of the hallway in the
southeast suite as shown on the attached plan.
8. Build a demising wall at the northeast end of the mailroom, as shown on
the attached plan.
9. Landlord shall paint entire office area using Building standard type
and color or Tenant can choose from Landlord approved samples.
10. Landlord to install new carpet throughout entire office area. Tenant
shall choose from Landlord approved carpet samples.
11. Landlord shall install three (3) new interior office doors opening into
the conference room, storage room and office area from the Call Center,
as shown on the attached plan.
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12. Landlord to demo the existing southwest wall and door in the Call
Center.
13. Landlord to replace any missing or damaged ceiling tiles.
14. Any other Tenant improvements requested by the Tenant prior to
occupancy not listed herein will be provided by Landlord on an actual
cost basis in a lump sum payable by Tenant prior to the time of the
construction.
15. The existing accordion type door located in the Call Center shall be
removed, ceiling to be finished as deemed appropriate by Landlord. No
ceiling grid shall be replaced.
16. Landlord shall install mini blinds where missing. The color shall match
as close as possible to the existing mini blinds.
17. The sink in the northwest suite shall remain.
18. The above excludes phones, computers and special electrical
requirements. Installation of phones, conduit, phone lines, computers
and computer lines are the responsibility of the Tenant. Tenant shall
have the right to access the premises during normal Building hours or
as otherwise approved, in writing, by the Landlord, prior to the Lease
commencement date for the purposes of planning and installing Tenant's
phones and computer lines.
Tenant agrees not to impede Landlords ability to complete the Tenant
improvements by way of interference with Landlords requirements for the
premises.
19. Landlord and Tenant shall do a walk-thru and punch list within thirty
(30) days or less after occupancy or after June 30, 1999.
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EXHIBIT C
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be inscribed,
displayed or printed or affixed on or to any part of the outside or inside of
the Building without the written consent of Landlord first hand and obtained and
Landlord shall have the right to remove any such sign, placard, picture
advertisement, name or notice to and at the expense of Tenant.
All approved signs or lettering on doors shall be printed, painted, affixed or
inscribed at the expense of Tenant by a person approved of by Landlord.
Tenant shall not place anything or allow anything to be placed near the glass of
any window, door, partition or wall which may appear unsightly from outside the
Premises; provided, however, that Landlord may furnish and install a Building
standard window covering at all exterior windows. Tenant shall not without prior
written consent of Landlord cover or otherwise sunscreen any window.
2. The sidewalks, halls, passages, exits, entrances, elevators and stairways
shall not be obstructed by any of the Tenants or used by them for any purpose
other than for ingress and egress from their respective Premises.
3. Tenant shall not alter any lock or install any new or additional locks or any
bolts on any doors or windows of the Premises without the written consent of
Landlord.
4. The toilet rooms, urinals, wash bowls and other apparatus shall not be used
for any purpose other than that for which they were constructed and no foreign
substance of any kind whatsoever shall be thrown therein and the expense of any
breakage, stoppage or damage resulting from the violation of this rule shall be
borne by the Tenant who, or whose employees or invitees shall have caused it.
5. Tenant shall not overload the floor of the Premises or in any way deface the
Premises or any part thereof.
6. No furniture, freight or equipment of any kind shall be brought into the
Buildings without prior notice to Landlord and all moving of the same into or
out of the Buildings shall be done at such times and in such manner as Landlord
shall designate. Landlord shall have the right to prescribe the weight, size and
position of all safes and other heavy equipment brought into the Buildings and
also the times and manner of moving the same in and out of the Buildings. Safes
or other heavy objects shall, if considered necessary by Landlord, stand on
supports of such thickness as is necessary to properly distribute the weight.
Landlord will not be responsible for loss of or damage to any such safe or
property from any cause and all damage done to the Buildings by moving or
maintaining any such safe or other property shall be repaired by the
27
expense of tenant. There shall not be used in any space, or in the public halls
of the buildings, either by any tenant or others, any hand trucks except those
equipped with rubber tires and sideguards.
7. Tenant 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 landlord or other
occupants of the Building by reason of noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business therein, nor
shall any animals.or birds be brought in or kept in or about the Premises of the
Building.
8. No cooking shall be done or permitted by any Tenant on the Premise, nor shall
the Premises be used for the storage of merchandise, or for lodging, except with
the prior written consent of the Landlord.
9. The Tenant shall not do or permit anything to be done in the demised
premises, or bring or keep anything therein, which shall in any way increase the
rate of fire insurance on the building, or on the property kept therein, or
obstruct or interfere with the rights of other Tenants, or in any way injure or
annoy them; or conflict with the regulations of the fire department or fire
laws, or with any insurance policy upon the building, or any part thereof, or
with any rules and ordinances established by the Board of Health or other
governmental authority.
10. Landlord 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 the Landlord. The location of telephones, call
boxes and other office equipment affixed to the Premises shall be subject to the
approval of Landlord.
11. On Saturdays, Sundays and legal holidays, and on other days between the
hours of 6:00 p.m. and 7:00 a.m. the following day, access to the Building, or
to the halls, corridors, elevators or stairways in the Buildings, or to the
Premises shall be restricted. Access shall be limited to tenant's employees. The
Landlord shall in no case be liable for damages for any error with regard to the
admission to or exclusion from the Buildings of any person. In case of invasion,
mob, riot, public excitement or other commotion, the Landlord reserves the right
to prevent access to the Buildings during the continuance of the same by closing
of the doors or otherwise, for the safety of the tenants and protection of the
Buildings and of property in the Buildings.
12. Landlord reserves the right to exclude or expel from the Buildings any
person who, in the judgment of Landlord, 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.
13. No vending machine or machines of any description shall be installed,
maintained, or operated upon the Premises without the written consent of the
Landlord.
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14. Landlord shall have the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building of
which the Premises are a part.
15. Tenant shall not disturb, solicit, or canvass any occupant of the Building
and shall cooperate to prevent same.
16. Without the written consent of Landlord, Tenant shall not use the name of
the Building in connection with or in promoting or advertising the business of
Tenant except as Tenant's address.
17. Landlord shall have the right to control and operate the public portions of
the Building, and the public facilities, and heating and air conditioning, as
well as facilities furnished for the common use of the tenants in such manner as
it deems best for the benefit of the tenants generally.
18. Tenant shall see that the windows, transoms, and doors of the premises are
closed and securely locked before leaving the building and must observe strict
care not to leave windows open when it rains and Tenant shall exercise
extraordinary care and caution that all water faucets or water apparatus are
entirely shut off before Tenant or Tenant's employees leave the building, and
that all electricity, gas or air shall likewise be carefully shut off, so as to
prevent waste or damage, and for any default or carelessness Tenant shall make
all injuries sustained by other tenants or occupants of the building or
Landlord.
19. Tenant agrees that it shall comply with all fire and security regulations
that may be issued from time to time by Landlord and Tenant also shall provide
Landlord with the name of a designated responsible employee to represent Tenant
in all matters pertaining to such fire or security regulations.
20. Landlord reserves the right by written notice to Tenant, to rescind, alter
or waive any rule or regulation* at any time prescribed for the Buildings when,
in Landlord's judgment, it is necessary, desirable or proper for the best
interest of the Buildings and its tenants. *in Exhibit C
21. Tenant shall not bring into or keep within the buildings or premises any
motorized vehicles or bicycles except in areas designated for same.
22. * SEE ADDENDUM I #13
23. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the premises closed.
24. Tenant shall be responsible for the observance of all of the foregoing Rules
and Regulations by Tenants employees, agents, clients, customers, invitees and
guests.
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25. Tenant shall not employ any person or persons other than the janitor of
Landlord for the purpose of cleaning the Premises unless otherwise agreed to by
Landlord. Except with the written consent of Landlord, no person or, persons
other than those approved by Landlord shall be permitted to enter the Building
for the purpose of cleaning the same. Tenant shall not cause any unnecessary
labor by reason of Tenant's carelessness or indifference in the preservation of
good order and cleanliness. Landlord shall in no way be responsible to any
Tenant for any loss of property on the Premises, however occurring, or for any
damage done to the effects of any Tenant by the janitor or any other employee or
any other person. Janitor service shall include ordinary dusting and cleaning by
the janitor assigned to such work and shall not include cleaning of carpets or
rugs, except normal vacuuming, or moving of furniture and other special
services.
30
ADDENDUM I
This Addendum I is attached hereto and made a part of that certain Lease dated
April 20, 1999 by and between BroadLake Partners, A California Limited
Partnership as Landlord and VALUF-STAR, INC. as Tenant.
1. The Minimum Monthly Rent shall be subject to an increase on the third
(3rd) anniversary date of said Lease, at an amount to be determined in
paragraph 4(b) above; except that the rent increase shall not be less
than two (2%) percent nor more than ten (1O%) percent.
2. Occupancy of the Call Center block of space, shall be made available
within thirty (30) days of the date this Lease is executed by both
parties. The monthly rent shall begin on this suite thirty (30) days
after the execution of this Lease by both parties, so long as Landlord
has delivered the space ready to occupy as agreed to herein. The rent
for said space shall be One Dollar and Twenty Cents ($1.20) per
rentable square foot, which shall include a fifteen percent (15%) load
factor.
3. The cumulative adjustment for any operating expenses and tax increases
shall not exceed six percent (6%) over the initial five (5) year Lease
term.
4. So long as Tenant has not been in default under any of the terms and
conditions of said Lease, including but not limited to the payment of
rent, Tenant shall have the option to extend this Lease for two (2)
successive additional periods of five (5) years each (the "Extended
Term(s)"). The Minimum Monthly Rent during each Extended Term of the
Lease shall be equal to ninety five percent (95%) of the then fair
market rent for comparable office space at the commencement of the
Extended Term of the lease; except that in no event shall the new
Minimum Monthly Rent be less than the total monthly rent being paid by
Tenant in the last year preceding the Extended Term in question. Tenant
shall notify Landlord in writing at least nine (9) months in advance of
the Extended Term in question of its desire to exercise this option to
extend the Lease term. At least six (6) months prior to the
commencement of the Extended Term in question, Landlord and Tenant
shall meet and attempt to agree upon the rental rate during such
Extended Term. If the parties are unable to agree on the fair market
rent for the Extended Term within ninety (90) days prior to the
commencement of the Extended Term in question, then the parties shall
engage in binding arbitration to determine the fair market rent. In
such arbitration each party shall at its own cost, and by giving
written notice to the other party, hire a real estate appraiser with at
least five (5) years full time commercial appraisal experience who is
familiar with the rental value of commercial property in the city of
Oakland to appraise and determine the fair market rent as of the date
of the appraisal. If a party does not appoint an appraiser within ten
(10) days after the other party has given notice of the name of its
appraiser, the single appraiser appointed shall be the sole appraiser
and shall set the fair market rent for the Extended Term. If the two
appraisers are appointed by the parties as stated in this paragraph,
the appraisers selected by Landlord and Tenant shall independently
report in writing on their opinion as to the then
31
fair market rent of the premises, no later than fifteen (15) days after
such appraisers have been selected by the parties hereto. Each party
shall promptly upon receipt of the appraisal report from its appraiser
exchange same with the other party. If the higher appraisal shall be
equal to or less than one hundred ten percent (110%) of the lower
appraisal, the two (2) appraisals shall be added together and their
total divided by two (2); the resulting quotient shall be deemed fair
market rent of comparable office space. If the higher appraisal is
greater than one hundred ten percent (110%) of the lower appraisal,
then within ten (10) days after receipt of such appraisals by Landlord
and Tenant, the two (2) originally selected appraisers shall choose a
third (3rd) appraiser, meeting the above qualification, who shall not
later than fifteen (15) days after selection determine the fair market
rent of the premises. If the two (2) appraisers are unable to agree on
the third (3rd) appraiser within such ten (10) day period, then either
of the parties may petition to Alameda County Superior Court, or the
President of the Association of Realtors, for the selection of the
third (3rd) appraiser. The third (3rd) appraiser, however selected,
shall be a person who has not acted in any capacity for or against
either party. The three (3) appraisals shall be added together and
their total be divided by three (3); the resulting quotient shall be
the fair market rent of comparable office space. If, however, the low
appraisal is less than ninety percent (90%) of the middle appraisal
and/or the high appraisal is more than one hundred ten percent (110%)
of the middle appraisal, the low appraisal and/or the high appraisal
(as the case may be) shall be disregarded in the calculation. If only
one appraisal is disregarded, the remaining two (2) appraisals shall be
added together and their total be divided by two (2); the resulting
quotient shall be the fair market rent of comparable office space. If
both the low appraisal and the high appraisal are disregarded as
provided in this paragraph, the middle appraisal shall be fair market
rent for comparable office space. Each party shall pay for their own
appraiser, and shall pay fifty percent (50%) of the third (3rd)
appraiser cost if the third (3rd) appraiser is hired.
5. So long as Tenant has not been in default under any of the terms and
conditions of this Lease, including but not limited to the payment in
rent, Tenant shall be granted an option to lease the remaining unrented
space currently available on the second floor of the Building. This
option shall expire at 5:00p.m. on June 30, 2000. If said option is
exercised, Tenant shall notify Landlord in writing at least thirty (30)
days prior to the option expiration date. Landlord shall have thirty
(30) days to make the space ready for Tenant. The space shall be taken
as-is by Tenant, expect that Landlord shall provide new carpet and
paint. If said option is exercised by Tenant, the per square foot rent
shall equal One Dollar and Twenty Cents ($1.20) per square foot with a
fifteen percent (15%) load factor, and the terms shall run concurrent
with the existing Lease. The new space leased by Tenant under this
option shall be incorporated into this Lease by Addendum. All terms and
conditions of the Lease shall remain the same, except where adjusted as
a result of the additional square footage, additional percentage leased
in the Building, and the additional rent.
32
6. Until June 30, 2000 and so long as Tenant has not been in default under
any of the terms and conditions of this Lease, including but not
limited to the payment of rent, Landlord agrees to first notify Tenant
in writing of Landlord's intention to lease space to a third party on
the third floor of the Building. Landlord shall deliver to Tenant, a
copy of the proposed Lease, Letter of Intent, or other written outline
of the terms and conditions for leasing said space (and it is
acknowledged that such document shall not be a signed Lease or other
binding document, but rather any written outline of the proposed terms
and conditions will suffice).
If Tenant, within seven (7) days after receipt of Landlords written
notice, indicates in writing its agreement to lease said space on the
terms and conditions as specified in the notice given by Landlord,
Landlord shall lease said space on the third floor to Tenant on said
terms and conditions; and the parties shall immediately enter into a
Lease Agreement incorporating such terms and conditions. If within said
seven (7) day period Tenant does not notify Landlord in writing of its
agreement to lease said space on terms and conditions as specified on
Landlord's notice to Tenant, Landlord shall have the right to lease
said space to a third party on terms and conditions similar to those
stated in Landlord's notice; provided that Landlord and third party may
subsequently, in good faith, negotiate and make previously
unanticipated changes in such terms and conditions. If Landlord has not
signed a Lease on said space within one hundred eighty (180) days after
the date of Landlord's notice to Tenant, any further transaction shall
be deemed a new determination by Landlord to lease space on the third
floor, and the provisions of this paragraph shall once again be
applicable. The provisions herein in this right of first refusal shall
expire at 5:00p.m, June 30, 2000.
7. The operation of the Buildings HVAC systems during the weekend,
holidays and after normal Building hours shall be charged to the Tenant
as additional rent, and billed on a monthly basis at the rate of $35.00
per hour. This rate is subject to change depending on the actual costs.
Tenant may audit costs if they desire.
Tenant agrees to provide Landlord a written request not less than three
(3) days prior to the dates required for the operation of the HVAC
during weekends, holidays or any time other than normal Building hours.
8. Exterior Building signage is available to the Tenant at no additional
charge once they occupy and are paying rent on 25,000 square feet or
more in the Building. Tenant would be responsible for all costs of
installation and/or removal of same. At such time as they vacated or no
longer lease 25,000 square feet in the Building, The Building shall be
returned to its previous state at the sole cost of the Tenant. The
signage must be pre-approved, in writing, by the Landlord and would
comply with all governmental regulations.
9. In the event Tenant desires to sub-lease any portion of their space,
the approval to do so will be pursuant to Section #10 of the Lease but
such approval, by Landlord will not be
33
unreasonably withheld. It is agreed by both parties it would be
reasonable for Landlord to deny Tenant's ability to sublet space if
Landlord believes the sublessee would be non-compatible with the
Building or would disrupt other Tenants in the Building or would make
it more difficult for Landlord to lease space in the Building.
10. Landlord shall request from its lender an attornment and non
disturbance agreement in lender's standard form, as soon as the Lease
has been signed by Tenant. Lender has informed Landlord's
representative that this will be acceptable.
11. So long as Tenant is not in default of any lease term or condition
including the payment of rent, the electrical power to Tenants suite
shall be left on twenty four (24) hours per day, seven (7) days per
week. The rent specified in 4(a) is based on Tenants usage of power
during normal Building hours as specified in 12(g). While Landlord
agrees to provide electrical power to the suite twenty four (24) hours
per day, seven (7) days per week, this is subject to the conditions
otherwise specified in Section 12 of the Lease. If Tenant is running
office equipment after normal Building hours, Landlord shall have the
right to xxxx Tenant, and Tenant hereby agrees to pay as additional
rent, all electricity costs associated therewith, including but not
limited to lighting usage, if staff is working after normal Building
hours. Landlord may inspect office equipment to determine the
electrical draw of such equipment.*
12. Add to Lease, Paragraph 21(c) to read as follows: Other than as
provided for in this Lease, Landlord hereby waives all claims against
Tenant for damage to any property or injury, illness or death of any
person in Tenants suite arising at any time and from any cause
whatsoever other than solely by reason of gross negligence or willful
act of Tenant, its employees or contractors.
13. In the event Tenant does not exercise their first five (5) year option
to renew their Lease, Tenant shall agree to pay for any carpet damage
caused by chairs rolling directly on the carpets.
14. The initial space as shown on Exhibit A(2) identified as the "Call
Center" shall be made ready within (30) days of Lease signing. The
monthly rent for said space shall be Six Thousand Two Hundred Four
Dollars and Forty Cents ($6,204.40)
15. Paragraph #17 shall be modified to include: If more than thirty (30%)
percent of Tenant space is destroyed and no other space in the Building
is available, Tenant may terminate Lease but only after Landlord has
had the opportunity to repair premises pursuant to the timeframes in
Xxxxxxxxx # 00.
* It is not the Landlord's intention to charge tenant for minimal after hours
electricity usage. This provision is to protect landlord from electricity usage
that is above normal for other tenants in the building.
34
