EXHIBIT 10.10
FIRST AMENDMENT TO LEASE
This First Amendment to Lease ("Amendment"), is made and entered into this
30/th/ day of July, 1999 by and between Mission West Properties, X.X. XX
(formerly known as Xxxx & Xxxx Developers), a Delaware limited partnership
("Xxxx" or "Lessor") and Lynx Real-Time Systems, Inc., a California Corporation
("Lynx" or "Lessee").
RECITALS
A. Lessee currently leases from Lessor approximately 25,663 feet of space
located at 0000 Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx (the "Premises")
pursuant to that certain lease dated January 31, 1995 (the "Lease").
B. The term of the Lease expires March 31, 2000.
C. Lessee has elected and Lessor has agreed to extend the Lease subject to the
terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties hereto agree to amend the
Lease as follows:
1. TERM: The term of the Lease is hereby extended for five years until March
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31, 2005.
2. BASIC RENT: The basic rent shall be adjusted to and payable as follows:
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Basic Rent CAC* Total
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April 1, 2000 through March 31, 2001 $41,574 $9,600* $51,174
Monthly base rent shall increase by 3% on April 1, 2001 and 2002, and 4%
on April 1, 2003 and 2004.
* Amount represents Lessee's share of the estimated costs associated with
the Premises, which is subject to adjustment.
3. ACCEPTANCE OR PREMISES AND COVENANTS TO SURRENDER: Lessee accepts the
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Premises in its existing condition and existing state of repair, "AS IS".
4. BROKERAGE COMMISSION: Each party represents and warrants to the other
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party that it has not utilized or contacted a real estate broker or finder
with respect to this Amendment and each party agrees to indemnify and
hold each other harmless against any claim, cost, liability or cause of
action asserted by any broker or finder claiming through either party.
Lessor and Lessee agree that Lessor shall not be obligated to pay any
broker leasing commissions, consulting fees, finders fees or any other
fees or commissions arising out of the negotiation and execution of this
Amendment or relating to any extended term of the Lease or to any
expansion or relocation of the Premises.
5. TERMINATION: Lessor agrees to cancel this Lease in the event Lessee leases
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from Lessor a new building in excess of 35,000 square feet during this
extended term.
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
6. SUBLETTING: Lessor agrees to permit Lessee to sublease Lessee's
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portion of the Premises during this extended term provided Lessee
remains primarily liable for all terms, conditions and provisions of
the Lease, including but not limited to the obligation to pay rent to
Lessor.
7. LESSEE CERTIFICATION: As a condition of Lessor's agreeing to this
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Amendment, Lessee hereby certifies and confirms that as of the date of
this Amendment, Lessee is not in violation of any government
regulations, ordinances, rules or laws, including those pertaining to
Hazardous Waste and/or Hazardous Materials.
8. COMMON AREA CHARGES: Lessee shall continue to pay to Lessor its
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percentage share of common area charges during the extended term which
are estimated to be $9,600 during the first year of this extended
term.
9. RATIFICATION OF LEASE: Except as modified herein, the Lease is hereby
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ratified, approved and confirmed upon all the terms, covenants, and
conditions.
10. AUTHORITY: Each party executing this Amendment represents and
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warrants that he or she is duly authorized to execute and deliver this
Amendment. If executed on behalf of a corporation, that this Amendment
is executed in accordance with the bylaws of said corporation (or a
partnership that this Amendment is executed in accordance with the
partnership agreement of such partnership), that no other party's
approval or consent to such execution and delivery is required, and
that this Amendment is binding upon said individual, corporation (or
partnership) as the case may be in accordance with its terms.
MISSION WEST PROPERTIES, L.P., II Lynx Real-Time Systems, Inc.
a Delaware limited partnership a California corporation
By: Mission West Properties, Inc.,
A Maryland corporation
By:/s/ Xxxx X. Xxxx By:/s/ Xxxxx Xxxxx
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Xxxx X. Xxxx Xxxxx Xxxxx
Title: President Title: VP Finance CFO
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Date: 8/5/99 Date: July 30/th/ 1999
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STANDARD FORM LEASE
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Parties: This Lease, executed in duplicate at Cupertino, California, on January
___, 1995, by and between Xxxx & Xxxx Developers, a California General
Partnership, and Lynx Real-Time Systems, Inc., a California Corporation,
hereinafter called respectively Lessor and Lessee, without regard to number or
gender.
Use and Premises: Witnesseth: That Lessor hereby Leases to Lessee, and Lessee
hires from Lessor, for the purpose of conducting therein office, research and
development, light manufacturing, and warehouse activities, and any other legal
activity, and for no purpose without obtaining the prior written consent of
Lessor, a portion of those certain Premises with the appurtenances (the
"Premises"), situated in the City of San Xxxx, County of Santa Xxxxx, State of
California, and more particularly described as follows:
25,663 square feet of space, including all improvements thereto as shown on
Exhibit "A.1" of the Premises as shown on Exhibit "A.2" including the right
to use up to 85 unreserved parking spaces. The address for the portion of
the Premises is 0000 Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx.
Term: The term shall be for sixty (60) months, commencing on the 1st day of
April, 1995 (the "Commencement Date"), and ending on the 31st of March, 2000
Rent: Base rent shall be payable in monthly installments as follows:
April 1, 1995 - March 31, 1996 $14,400
April 1, 1996 - March 31, 1997 $18,000
April 1, 1997 - March 31, 2000 $21,814
Base rent as scheduled above shall be payable in advance on or before the first
day of each calendar month during the term hereof. The term "Rent," as used
herein, shall be deemed to be and to mean the base monthly rent and all other
sums required to be paid by Lessee pursuant to the terms of this Lease. Rent
shall be paid in lawful money of the United States of America, without offset or
deduction, and shall be paid to Lessor at such place or places as may be
designated from time to time by Lessor. Rent for any period less than a calendar
month shall be a pro rata portion of the monthly installment. Upon execution of
this Lease, Lessee shall deposit with Lessor the first month's rent.
Security Deposit: Lessee shall deposit with Lessor the sum of Twenty Thousand
Five Hundred Thirty Dollars ($20,530) (the "Security Deposit"). The Security
Deposit shall be held by Lessor as security for the faithful performance by
Lessee of all of the terms, covenants, and conditions of this Lease applicable
to Lessee. If Lessee commits a default as provided for herein, including but not
limited to a default with respect to the provisions contained herein relating to
the condition of the Premises upon the Lease Expiration or Termination, Lessor
may (but shall not be required to) use, apply or retain all or any part of the
Security Deposit for the payment of any amount which Lessor may spend by reason
of default by Lessee. If any portion of the Security Deposit is so used or
applied, Lessee shall, within ten days after written demand therefor, deposit
cash with Lessor in an amount sufficient to restore the Security Deposit to its
original amount. Lessee's failure to do so shall be a default by Lessee. Any
attempt by Lessee to transfer or encumber its interest in the Security Deposit
shall be null and void. Upon execution of this Lease, Lessee shall deposit with
Lessor the Security Deposit.
Late Charges: Lessee hereby acknowledges that a late payment made by Lessee to
Lessor of Rent and other sums due hereunder will cause Lessor to incur costs not
contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges, which may be imposed on Lessor
according to the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of Rent or any other sum due from Lessee is not
received by Lessor or Lessor's designee within ten (10) days after such amount
is due, Lessee shall pay to Lessor a late charge equal to five (5%) percent of
such overdue amount. The parties hereby agree that such late charge represents a
fair and reasonable estimate of the costs Lessor will incur by reason of late
payments made by Lessee. Acceptance of such late charges by Lessor shall in no
event constitute a waiver of Lessee's default with respect to such overdue
amount, nor shall it prevent Lessor from exercising any of the other rights and
remedies granted hereunder.
Quiet Enjoyment: Lessor covenants and agrees with Lessee that upon Lessee paying
Rent and performing its covenants and
Prorations: During the first year of this lease ending March 31, 1996, taxes,
insurance and gardening maintenance costs shall be allocated to Lessee on the
basis of 18,000 square feet. Thereafter, Lessee shall be responsible for taxes,
insurance and gardening maintenance costs based on 25,663 square feet.
It Is Further Mutually Agreed Between The Parties As Follows:
1. Possession: Possession shall be deemed tendered upon substantial completion
of Lessee's improvements. Rent shall commence on the later of the Commencement
Date or the date Lessee's improvements are substantially completed and
reasonably acceptable to Lessee.
If for any reason Lessor cannot deliver possession of the Premises to Lessee by
February 28, 1995, commencement of Lessee's obligation to begin paying rent
shall be delayed one day for every day beyond February 28, 1995 the Premises are
delivered to Lessee for possession unless such delays are caused by Lessee. If
possession of the Premises is not delivered to Lessee by April 30, 1995, Lessee
may, at its sole option, by notice in writing to Lessor within ten (10) days
after the end of said sixty (60) day period, cancel this Lease, in which event
the parties shall be discharged from all obligations hereunder provided further,
however, that if such written notice of Lessee is not received by Lessor within
said ten (10) day period, Lessee's right to cancel this Lease hereunder shall
terminate and be of no further force or effect.
2. Lessee's Improvements: Lessor and Lessee hereby agree that Lessor shall cause
the improvements specified on Exhibit B attached hereto to be made to the
Premises at the sole cost and expense of Lessor. Notwithstanding the foregoing,
Lessor's obligation to cause the improvements to be made shall be limited to
those specified on Exhibit B. Additional Improvements (those improvements not
specified on Exhibit B), if any, may be made by Lessor, upon written request by
Lessee, provided Lessee pays for any such improvements.
2.1 Acceptance Of Premises And Covenants To Surrender: Lessor represents that
the Premises are in good order and repair, and complies with all legal
requirements for occupancy as of the Commencement Date. The Lessee agrees on the
last day of the term hereof, or on the sooner Termination of this Lease, to
surrender the Premises to Lessor in good condition and repair. The interior
walls of all office and warehouse areas, the floors of all office and warehouse
areas, all suspended ceilings and any carpeting are to be cleaned and in good
repair. Lessee also agrees to surrender unto Lessor all alterations, additions,
and improvements which may have been made in, to, or on the Premises by Lessee,
except that Lessee shall ascertain from Lessor, within (30) days before the end
of the term of this Lease, whether Lessor desires to have the Premises or any
part or parts thereof restored to their condition as of the Commencement Date of
this Lease except for usual wear and tear, if Lessor shall so desire, then
Lessee shall restore said Premises or such part or parts thereof before the
Expiration or Termination of this Lease at Lessee's sole cost and expense.
Lessee, on or before the end of the term or sooner Termination of this Lease,
shall remove all its personal property and trade fixtures from the Premises, and
all such property not so removed shall be deemed to be abandoned by Lessee.
Lessee shall reimburse Lessor for all disposition costs incurred by Lessor
relative to Lessee's abandoned property. If the Premises are not surrendered at
the end of the term or sooner Termination of this Lease, Lessee shall indemnify
Lessor against loss or liability resulting from any delay caused by Lessee in
surrendering the Premises including, without limitation, any claims made by any
succeeding Lessee founded on such delay.
3. Uses Prohibited: Lessee shall not commit, or suffer to be committed, any
waste upon the said Premises, or any nuisance, or other act or thing which may
disturb the quiet enjoyment of any other tenant in or around the buildings in
which the subject Premises may be located or allow any sale by auction upon the
Premises, or allow the Premises to be used for any improper, immoral, unlawful
or objectionable purpose, or place any loads upon the floor, walls, or ceiling
which may endanger the structure, or use any machinery or apparatus which will
in any manner vibrate or shake the Premises or the building of which it is a
part, or place any harmful liquids in the drainage system of the building. No
waste materials or refuse shall be dumped upon or permitted to remain upon any
part of the Leased Premises outside of the building proper. No materials,
supplies, equipment, finished products or semi-finished products, raw materials
or articles of any nature shall be stored upon or permitted to remain on any
portion of the Leased Premises outside of the building structure, unless
approved by the local, state federal or other applicable governing authority.
Lessor consents to Lessee's use of materials which are incidental to the normal,
day-to-day operations of any office user, such as copier fluids, cleaning
materials, etc., but this does not relieve Lessee of any of its obligations not
to contaminate the Premises or related real property or violated any hazardous
materials laws.
4. Alterations And Additions: Lessee shall not make, or suffer to be made, any
alteration or addition to said Premises, or any
part thereof, without the express, advance written consent of Lessor, any
addition or alteration to said Premises, except movable furniture and trade
fixtures, shall become at once a part of the realty and belong to Lessor.
Alterations and additions which are not deemed as trade fixtures shall include
HVAC systems, lighting systems, electrical systems, partitioning, carpeting, or
any other installation which has become an integral part of the Leased Premises.
Lessee agrees that it will not proceed to make such alterations or additions
until all required government permits have been obtained and after having
obtained consent from Lessor to do so, until five (5) days from the receipt of
such consent, so that Lessor may post appropriate notices to avoid any liability
to contractors or material suppliers for payment for Lessee's improvements.
Lessee will at all times permit such notices to be posted and to remain posted
until the completion of work. Lessee may remove and will be required to remove
its special tenant improvements and all related equipment installed by Lessee at
or prior to Lease Expiration or Termination. Notwithstanding the above, Lessor
agrees to allow any reasonable alterations and improvements and will use its
best efforts to notify Lessee at the time of approval if such improvements or
alterations are to be removed on Expiration or Termination. Notwithstanding the
above, Lessee shall have the right, during the lease term, to make tenant
improvements to the Premises at their sole cost and expense of up to an
aggregate of $10,000 with no approval from Lessor, subject to the removal
requirements of Paragraph 2.1.
5. Maintenance Of Premises: Lessee shall at its sole cost and expense keep and
maintain the interior of the Premises, including, but not limited to, all
lighting systems, temperature control systems and plumbing systems, in good and
sanitary order, condition and repair, including any required replacements.
Lessee shall maintain all wall surfaces and floor coverings in as good a
condition as when Lessee took possession, free of holes, gouges, or defacements
except for usual wear and tear.
Lessor shall keep and maintain in good condition and repair including
replacements, at Lessee's expense, based on a pro-rata share of cost based on
square footage or costs directly related to Lessee's use of the Premises the
following:
1. The exterior of the building, any appurtenances and every part
thereof, including but not limited to, glazing, sidewalks, parking
areas, electrical systems, HVAC systems, elevator systems, roof, and
painting of exterior walls.
2. A service contract with a licensed air conditioning and heating
contractor which contract shall provide for a minimum of bi-monthly
maintenance of all air conditioning and heating equipment at the
Leased Premises including HVAC repairs or replacements which are
either excluded from such service contract or any existing equipment
warranties.
3. A landscape contract to water, maintain, trim and replace, when
necessary, any shrubbery and landscaping on the Leased Premises.
4. A service contract with a licensed reputable roofing contractor
which contract shall provide for a minimum of semi-annual maintenance
and repair of the roof at the Leased Premises, including cleaning
storm gutters and drains and removing debris and trimming overhanging
trees.
5. A service contract with a licensed elevator service company, if
applicable, which contract will provide for a minimum of quarterly
maintenance of the elevator and related equipment at the Leased
Premises, including repair and replacements of parts and equipment.
Notwithstanding the above, any single repair item with a cost in excess of
$2,500, Lessee shall pay the first $2,500 and the balance of the repair item
costs shall be amortized over the estimated useful life of the repair item, not
to exceed 10 years. Lessee shall pay to Lessor the amortized costs of such
repair item in excess of $2,500 on a monthly basis based on an amortization rate
of Xxxxx Fargo prime rate plus two percent (2%) over the remaining lease term.
Lessee hereby waives any and all rights to make repairs at the expense of Lessor
as provided in Section 1942 of the Civil Code of the State of California, and
all rights provided for by Section 1941 of said Civil Code.
Lessor shall be responsible for any structural defects in the Premises including
the roof structure (not membrane), exterior walls and foundation during the
Lease term.
6. Hazard Insurance: Lessee shall not use, or permit said Premises, or any
part thereof, to be used, for any purpose other than that for which said
Premises are hereby Leased, and no use shall be made or permitted to be made of
the said Premises, nor acts done, which may cause a cancellation of any
insurance policy covering said building, or any part thereof, nor shall Lessee
sell or permit to be kept, used or sold, in or about said Premises, any article
which may be prohibited by a standard form fire
insurance policy. Lessee shall, at its sole cost and expense, comply with any
and all requirements, pertaining to said Premises, of any insurance organization
or company, necessary for the maintenance of reasonable fire and general
liability insurance, covering said building and appurtenances. The Lessor agrees
to purchase and keep in force fire and extended coverage insurance covering loss
or damage to the Leased Premises in amounts not to exceed the actual insurable
value of said Premises as determined by Lessor, with proceeds payable to Lessor.
The Lessee acknowledges that the insurance referenced above does not include
coverage for Lessee's personal property. In the event of a loss per the
insurance provisions of this paragraph, Lessee shall be responsible for
deductibles up to a maximum of $5,000 per occurrence. The Lessee agrees to pay
to the Lessor as additional Rent, on demand, the full cost of said insurance as
evidenced by insurance xxxxxxxx to the Lessor. If said insurance xxxxxxxx cover
the entire building, and this Lease does not cover the entire building, the
insurance premiums and deductibles allocated to the Leased Premises shall be
pro-rated on a square footage or other equitable basis, as determined by Lessor.
It is understood and agreed that Lessee's obligation under this paragraph will
be prorated to reflect the Commencement Date and Termination Date of this Lease.
Lessor and Lessee hereby waive any rights each may have against the other
related to any loss or damage caused to the Lessor or the Lessee as the case may
be, or to the Premises or its contents, and which may arise from any risk
generally covered by fire and extended coverage insurance. The parties shall
provide that their respective insurance policies insuring the property or the
personal property include a waiver of any right of subrogation which said
insurance company may have against the Lessor or the Lessee, as the case may be.
Lessor shall maintain in full force and effect, a policy of rental loss
insurance, in an amount equal to the amount of Rent payable by Lessee commencing
on the date of loss during the next ensuing one (1) year, as reasonably
determined by Lessor with proceeds payable to Lessor. Lessee shall reimburse
Lessor for the full cost of said rental loss insurance coverage.
7. Abandonment: Lessee shall not vacate or abandon the Premises at any time
during the term, and if Lessee shall abandon, vacate or surrender said Premises,
or be dispossessed by process of law, or otherwise, any personal property
belonging to Lessee and left on the Premises shall be deemed to be abandoned, at
the option of Lessor. Notwithstanding the above, the Premises shall not be
considered vacated or abandoned if Lessee maintains the Premises in good
condition, provides security and is not in default.
8. Free From Liens: Lessee shall keep the subject Premises and the property in
which the subject Premises are situated, free from any and all liens including
but not limited to liens arising out of any work performed, materials furnished,
or obligations incurred by Lessee. However, the Lessor shall allow Lessee to
contest a lien claim, so long as the claim is discharged prior to any
foreclosure proceeding being initiated against the property and provided Lessee
provides Lessor a bond if the lien exceeds $5,000.
9. Compliance With Governmental Regulations: Lessee shall, at its sole cost
and expense, comply with all of the requirements of all Local, Municipal, State
and Federal authorities now in force, or which may hereafter be in force,
pertaining to Lessee's use and occupancy of the said Premises, and shall
faithfully observe in the use of the Premises all Local and Municipal ordinances
and State and Federal statutes now in force or which may hereafter be in force.
10. Lessee's Insurance: Lessee, as a material part of the consideration to be
rendered to Lessor, hereby waives all claims against Lessor and Lessor's Agents
for damages to goods, wares and merchandise, and all other personal property in,
upon or about said Premises, and for injuries to persons in, upon or about said
Premises, from any cause arising at any time, and Lessee will hold Lessor and
Lessor's Agents exempt and harmless from any damage or injury to any person, or
to the goods, wares and merchandise and all other personal property of any
person, arising from the use or occupancy of the Premises by Lessee, or from the
failure of Lessee to keep the Premises in good condition and repair, as herein
provided. Lessee shall secure and keep in force a standard policy of general
liability insurance and property damage policy covering the Leased Premises,
including parking areas, insuring the Lessee. A certificate of said policy
naming Lessor as an additional insured shall be delivered to Lessor and will
have a combined single limit for both bodily injury, death and property damage
in an amount not less than two million dollars ($2,000,000.00). Lessee shall
obtain a written obligation on the part of the insurer to notify Lessor 30 days
in advance in writing before any cancellation thereof. Lessee shall obtain, at
Lessee's sole cost and expense, a policy of fire and extended coverage insurance
including coverage for direct physical loss special form, and a sprinkler
leakage endorsement, if applicable, insuring the personal property of the
Lessee. The proceeds from any property damage policy shall be payable to Lessee.
Lessee shall, at its sole cost and expense, comply with all of the insurance
requirements of all Local, Municipal, State
and Federal authorities now in force, or which may hereafter be in force,
pertaining to Lessee's use and occupancy of the said Premises. Notwithstanding
any other provisions of this paragraph, Lessee shall not be liable to Lessor for
any injury to any person arising from use or occupancy of the Premises if the
injury was a result of Lessor's sole negligence or willful misconduct.
11. Advertisements And signs: Lessee will not place or permit to be placed, in,
upon or about the Premises any unusual or extraordinary signs, or any signs not
approved by the city, local, state, federal or other applicable governing
authority. The Lessee will not place, or permit to be placed upon the Premises,
any signs, advertisements or notices without the written consent of the Lessor,
and such consent shall not be unreasonably withheld. A sign so placed on the
Premises shall be so placed upon the understanding and agreement that Lessee
will remove same at the Termination of this Lease and repair any damage or
injury to the Premises caused thereby, and if not so removed by Lessee, the
Lessor may have the same removed at Lessee's expense.
12. Utilities: Lessee shall pay for all water, gas, heat, light, power,
telephone and other utilities supplied to the Premises. Any charges for sewer
usage or related fees shall be the obligation of Lessee and paid for by Lessee.
If any such services are not separately metered to Lessee, Lessee shall pay a
reasonable proportion of all charges which are jointly metered, the
determination to be made by Lessor acting reasonably and on any equitable basis.
Lessor shall provide Lessee a copy of said utility xxxxxxxx upon request.
13. Attorney's Fees: In case suit should be brought for the possession of the
Premises, for the recovery of any sum due hereunder, or because of the breach of
any other convenant herein, the losing party shall pay to the prevailing party
reasonable attorney's fee which shall be deemed to have accrued on the
commencement of such action and shall be enforceable whether or not such action
is prosecuted to judgment.
14.1 Default: The occurrence of any of the following shall constitute a default
and breach of this Lease by Lessee: a) Any failure by Lessee to pay Rent or to
make any other payment required to be made by Lessee hereunder when due; b)The
abandonment or vacation of the Premises by Lessee except as provided in Section
7; c) A failure by Lessee to observe and perform any other provision of this
Lease to be observed or performed by Lessee, where such failure continues for
thirty days after written notice thereof by Lessor to Lessee; provided, however,
that if the nature of such default is such that the same cannot be reasonably
cured within such thirty (30) day period, Lessee shall not be deemed to be in
default if Lessee shall, within such period, commence such cure and thereafter
diligently prosecute the same to completion; d) The making by Lessee of any
general assignment for the benefit of creditors; the filing by or against Lessee
of a petition to have Lessee adjudged a bankrupt or of a petition for
reorganization or arrangement under any law relating to bankruptcy; e) the
appointment of a trustee or receiver to take possession of substantially all of
Lessee's assets or Lessee's interest in this Lease, or the attachment, execution
or other judicial seizure of substantially all of Lessee's assets located at the
Premises or of Lessee's interest in this Lease.
14.2 Surrender Of Lease: In the event of any such default by Lessee, then in
addition to any other remedies available to Lessor at law or in equity, Lessor
shall have the immediate option to terminate this Lease and all rights of Lessee
hereunder, by giving written notice of such intention to terminate. In the event
that Lessor terminates this Lease due to a default of Lessee, then Lessor may
recover from Lessee: a) the worth at the time of award of any unpaid Rent which
had been earned at the time of such termination; plus b) the worth at the time
of award of unpaid Rent which would have been earned after termination until the
time of award exceeding the amount of such rental loss; plus c) the worth at the
time of award of the amount by which the unpaid Rent for the balance of the term
after the time of award exceeds the amount of such rental loss; plus d) any
other amount necessary to compensate Lessor for all the detriment proximately
caused by Lessee's failure to perform his obligations under this Lease or which
in the ordinary course of things would be likely to result therefrom; and e) at
Lessor's election, such other amounts in addition to or in lieu of the foregoing
as may be permitted from time to time by applicable California law. As used in
(a), (b) and (c) above, the "worth at the time of award" is computed by allowing
interest at the rate of Xxxxx Fargo's prime rate plus two (2%) percent per
annum.
14.3 Right of Entry and Removal: In the event of any such default by Lessee,
Lessor shall also have the right, with or without terminating this Lease, to
re-enter the Premises and remove all persons and property from the Premises;
such property may be removed and stored in a public warehouse or elsewhere at
the cost of and for the account of Lessee.
14.4 Abandonment: In the event of the vacation or abandonment, except as
provided in Section 7, of the Premises by Lessee or in the event that Lessor
shall elect to re-enter as provided in paragraph 14.3 above or shall take
possession of the Premises pursuant to legal proceeding or pursuant to any
notice provided by law, and Lessor does not elect to terminate this Lease as
provided in paragraph 14.2 above, then Lessor may from time to time, without
terminating this Lease, either recover all Rent as it becomes due or relet the
Premises or any part thereof for such term or terms and at such rental rates and
upon such other terms and conditions as Lessor, in its sole discretion, may deem
advisable with the right to make alterations and repairs to the Premises. In the
event that Lessor elects to relet the Premises, then Rent received by Lessor
from such reletting shall be applied; first, to the payment of any indebtedness
other than Rent due hereunder from Lessee to Lessor; second, to the payment of
any cost of such reletting; third, to the payment of the cost of any alterations
and repairs to the Premises; fourth, to the payment of Rent due and unpaid
hereunder; and the residue, if any, shall be held by Lessor and applied to the
payment of future Rent as the same may become due and payable hereunder. Should
that portion of such rent received from such reletting during any month, which
is applied by the payment of Rent hereunder according to the application
procedure outlined above, be less than the Rent payable during that month by
Lessee hereunder, then Lessee shall pay such deficiency to Lessor immediately
upon demand therefor by Lessor. Such deficiency shall be calculated and paid
monthly. Lessee shall also pay to Lessor, as soon as ascertained, any costs and
expenses incurred by Lessor in such reletting or in making such alterations and
repairs not covered by the rentals received from such reletting.
14.5 No Implied Termination: No re-entry or taking possession of the Premises by
Lessor pursuant to 14.3 or 14.4 of this Article 14 shall be construed as an
election to terminate this Lease unless a written notice of such intention is
given to Lessee or unless the termination thereof is decreed by a court of
competent jurisdiction. Notwithstanding any reletting without termination by
Lessor because of any default by Lessee, Lessor may at any time after such
reletting elect to terminate this Lease for any such default.
15. Surrender Of Lease: The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, shall not work a merger, and shall, at
the option of Lessor, terminate all or any existing subleases or sub tenancies,
or may, at the option of Lessor, operate at an assignment to him of any or all
such subleases or sub tenancies.
16. Taxes: Lessee shall pay and discharge punctually and when the same shall
become due and payable without penalty, all real estate taxes, personal property
taxes, taxes based on vehicles utilizing parking areas in the Premises, taxes
computed or based on rental income (other than federal, state and municipal net
income taxes), environmental surcharges, privilege taxes, excise taxes, business
and occupation taxes, school fees or surcharges, gross receipts taxes, sales
and/or use taxes, employee taxes, occupational license taxes, water and sewer
taxes, assessments (including, but not limited to, assessments for public
improvements or benefit), and all other governmental impositions and charges of
every kind and nature whatsoever, regardless of whether now customary or within
the contemplation of the parties hereto and regardless of whether resulting from
increased rate and/or valuation, or whether extraordinary or ordinary, general
or special, unforeseen or foreseen, or similar or dissimilar to any of the
foregoing (all of the foregoing being hereinafter collectively called "Tax" or
"Taxes") which, at any time during the Lease Term, shall be applicable or
against the Premises, or shall become due and payable and a lien or charge upon
the Premises under or by virtue of any present or future laws, statutes,
ordinances, regulations, or other requirements of any governmental authority
whatsoever. The term "Environmental Surcharge" shall include any and all
expenses, taxes, charges, or penalties imposed by the Federal Department of
Energy, Federal Environmental Protection Agency, the Federal Clean Air Act, or
any regulations promulgated thereunder, or any other local, state or federal
governmental agency or entity now or hereafter vested with the power to impose
taxes, assessments or other types of surcharges as a means of controlling or
abating environmental pollution or the use of energy in regard to the use,
operation or occupancy of the premises. The term "Tax" shall include, without
limitation, all taxes, assessments, levies, fees, impositions or charges levied,
imposed, assessed, measured, or based in any manner whatsoever (i) in whole or
in part on the Rent payable by Lessee under this Lease, (ii) upon or with
respect to the use, possession, occupancy, leasing, operation or management of
the Premises, (iii) upon this transaction or any document to which Lessee is a
party creating or transferring an interest or an estate in the Premises, (iv)
upon Lessee's business operations conducted at the Premises, (v) upon, measured
by or reasonably attributable to the cost or value of Lessee's equipment,
furniture, fixtures and other personal property located on the Premises or the
cost or value of any leasehold improvements made in or to the Premises by or for
Lessee, regardless of whether title to such improvements shall be in Lessor or
Lessee, or (vi) in lieu of or equivalent to any Tax set forth in this Section
16. In the event any such Taxes are payable by Lessor and it shall not be lawful
for Lessee to reimburse Lessor for such Taxes, then the Rent payable thereunder
shall be
increased to net Lessor the same net rent after imposition of any such Tax upon
Lessor as would have been payable to Lessor prior to the imposition of any such
Tax. It is the intention of the parties that Lessor shall be free from all such
Taxes and all other governmental impositions and charges of every kind and
nature whatsoever. However, nothing contained in this Section 16 shall require
Lessee to pay any Federal or State income, franchise, estate, inheritance,
succession, transfer or excess profits tax imposed upon Lessor. If any general
or special assessment is levied and assessed against the Premises, Lessor agrees
to use its best reasonable efforts to cause the assessment to become a lien on
the Premises securing repayment of a bond sold to finance the improvements to
which the assessment relates which is payable in installments of principal and
interest over the maximum term allowed by law. It is understood and agreed that
Lessee's obligation under this paragraph will be prorated to reflect the
Commencement Date and Termination Date of this Lease. It is further understood
that if Taxes cover the entire Building and Lessee does not occupy the entire
Building, the Taxes will be allocated to the Leased Premises based on a pro-rata
square footage or other equitable basis.
Subject to any limitations or restrictions imposed by any deeds of trust or
mortgages now or hereafter covering or affecting the Premises, Lessee shall have
the right to contest or review the amount or validity of any Tax by appropriate
legal proceedings but which is not to be deemed or construed in any way as
relieving, modifying or extending Lessee's covenant to pay such Tax at the time
and in the manner as provided in this Section 16. However, as a condition of
Lessee's right to contest, if such contested Tax is not paid before such contest
and if the legal proceedings shall not operate to prevent or stay the collection
of the Tax so contested, Lessee shall, before instituting any such proceeding,
protect the Premises and the interest of Lessor and of the beneficiary of a deed
of trust or the mortgagee of a mortgage affecting the Premises against any lien
upon the Premises by a surety bond, issued by an insurance company acceptable to
Lessor and in an amount equal to one and one-half (1 1/2) times the amount
contested or at Lessor's option, the amount of the contested Tax and the
interest and penalties in connection therewith. Any contest as to the validity
or amount of any Tax, whether before or after payment, shall be made by Lessee
in Lessee's own name, or if required by law, in the name of Lessor or both
Lessor and Lessee. Lessee shall defend, indemnify and hold harmless Lessor from
and against any and all costs or expenses, including attorneys' fees, in
connection with any such proceedings brought by Lessee whether in its own name
or not Lessee shall be entitled to retain any refund of any such contested Tax
and penalties or interest thereon which have been paid by Lessee. Nothing
contained herein shall be construed as affecting or limiting Lessor's right to
contest any Tax at Lessor's expense.
17 Notices: Unless otherwise provided for in this Lease any and all written
notices or other communication (the "Communication") to be given in connection
with this Lease shall be given in writing and shall be given by personal
delivery, facsimile transmission or by mailing by registered mail with postage
thereon, fully prepaid, in a sealed envelope addressed to the intended recipient
as follows:
(a) to the Lessor at 00000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxx
Fax No: (000) 000-0000
(b) to the Lessee at 0000 Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx
Attention: Xx. Xxxxx Xxxxx
Fax No:
or such other addresses, facsimile number or individual as may be designated by
a Communication given by a party to the other parties as aforesaid. Any
Communication given by personal delivery shall be conclusively deemed to have
been given and received on a date it is so delivered at such address provided
that such date is a business day, otherwise on the first business day following
its receipt, and if given by registered mail, on the fifth business day
following the deposit thereof in the mail and if given by facsimile
transmission, on the day on which it was transmitted provided such day is a
business day, failing which, on the next business day thereafter.
18 Entry By Lessor: Lessee shall permit Lessor and its agents to enter into and
upon said Premises at all reasonable times with 24 hour notice to Lessee using
the minimum amount of interference and inconvenience to Lessee and Lessee's
business, subject to any security regulations of Lessee, for the purpose of
inspecting the same or for the purpose of maintaining the
building in which said Premises are situated, or for the purpose of making
repairs, alterations or additions to any other portion of said building,
including the erection and maintenance of such scaffolding, canopies, fences and
props as may be required, without any rebate of Rent and without any liability
to Lessee for any loss of occupation or quiet enjoyment of the Premises; and
shall permit Lessor and his agents, at any time within ninety (90) days prior to
the Expiration of this Lease, to place upon said Premises any usual or ordinary
"For Sale" or "For Lease" signs and exhibit the Premises to prospective tenants
at reasonable hours.
19. Destruction Of Premises: In the event of a partial destruction of the said
Premises during the said term of this Lease from any cause which is covered by
Lessor's property insurance, Lessor shall forthwith repair the same, provided
such repairs can be made within ninety (90) days under the laws and regulations
of State, Federal, County, or Municipal authorities, but such partial
destruction shall in no way annul or void this Lease, except that Lessee shall
be entitled to a proportionate reduction of Rent while such repairs are being
made to the extent of payments received by Lessor under its Loss of Rents
Insurance coverage. With respect to any partial destruction which Lessor is
obligated to repair or may elect to repair under the terms of this paragraph,
the provision of Section 1932, Subdivision 2, and of Section 1933, Subdivision
4, of the Civil Code of the State of California are waived by Lessee. In the
event that the building in which the subject Premises may be situated is
destroyed to an extent greater than thirty-three and one-third (33 1/3%) of the
replacement cost thereof, Lessor may, at its sole option, elect to terminate
this Lease, whether the subject Premises are injured or not. A total destruction
of the building in which the subject Premises are situated shall terminate this
Lease. Notwithstanding the above, Lessor is only obligated to repair or rebuild
to the extent of available insurance proceeds. Should Lessor determine that
insufficient or no insurance proceeds are available for repair or reconstruction
of Premises, Lessor, at its sole option, may terminate the Lease. Lessee shall
have the option of continuing this Lease by agreeing to pay all repair costs to
the subject Premises.
20. Assignment And Subletting: Lessee shall not assign this Lease, or any
interest therein, and shall not sublet the said Premises or any part thereof, or
any right or privilege appurtenant thereto, or cause any other person or entity
(a bona fide subsidiary or affiliate of Lessee excepted) to occupy or use the
said Premises, or any portion thereof, without the advance written consent of
Lessor. Any such assignment or subletting without such consent shall be void,
and shall, at the option of the Lessor, terminate this Lease. This Lease shall
not, or shall any interest therein, be assignable, as to the interest of Lessee,
by operation of law, without the written consent of Lessor. If Lessee desires to
assign its rights under this Lease or to sublet, all or a portion of the subject
Premises to a party other than a bona fide subsidiary or affiliate of Lessee,
Lessee shall first notify Lessor of the proposed terms and conditions of such
assignment or subletting. Lessor shall have the right of first refusal to enter
into a direct Lessor-Lessee relationship with such party under such proposed
terms and conditions, in which event Lessee shall be relieved of its obligations
hereunder to the extent of the Lessor-Lessee relationship entered into between
Lessor and such third party. Notwithstanding the foregoing, Lessee may assign
this lease to a successor in interest, whether by merger or acquisition,
provided there is no substantial reduction in the net worth of the resulting
entity.
21. Condemnation: If any part of the Premises shall be taken for any public or
quasi-public use, under any statute or by right of eminent domain or private
purchase in lieu thereof, and a part thereof remains which is susceptible of
occupation hereunder, this Lease shall as to the part so taken, terminate as of
the date title vests in the condemnor or purchaser, and the Rent payable
hereunder shall be adjusted so that the Lessee shall be required to pay for the
remainder of the term only that portion of Rent as the value of the part
remaining. The rental adjustment resulting will be computed at the same Rental
rate for the remaining part not taken, however, either party shall have the
option to terminate this Lease as of the date when title to the part so taken
vests in the condemnor or purchaser. If all of the Premises, or such part
thereof be taken so that there does not remain a portion susceptible for
occupation hereunder, this Lease shall thereupon terminate. If a part or all of
the Premises be taken, all compensation awarded upon such taking shall be
payable to the Lessor.
22 Effects Of Conveyance: The term "Lessor" as used in this Lease, means only
the owner for the time being of the land and building constituting the Premises,
so that, in the event of any sale of said land or building, or in the event of a
Lease of said building, the Lessor shall be and hereby is entirely freed and
relieved of all covenants and obligations of the Lessor hereunder, and it shall
be deemed and construed, without further agreement between the parties and the
purchaser of any such sale, or the Lessor of the building, that the purchaser or
Lessee of the building has assumed and agreed to carry out any and all covenants
and obligations of the Lessor hereunder. If any security is given by the Lessee
to secure the faithful performance of all or any of the covenants of this Lease
on the part of Lessee, the Lessor may transfer and deliver the security, as
such, to the purchaser at any such sale or sale of the Lessee of the building,
and thereupon the Lessor shall be discharged from any further liability.
23. Subordination: This Lease, in the event Lessor notifies Lessee in writing,
shall be subordinate to any ground Lease, deed of trust, or other hypothecation
for security now or hereafter placed upon the real property at which the
Premises are a part and to any and all advances made on the security thereof and
to renewals, modifications, replacements and extensions thereof. Lessee agrees
to promptly execute any documents which may be required to effectuate such
subordination.
24. Waiver: The waiver by Lessor of any breach of any term, covenant or
condition, herein contained shall not be construed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition therein contained. The subsequent acceptance of Rent
hereunder by Lessor shall not be deemed to be a waiver of Lessee's breach of any
term, covenant, or condition of the Lease.
25. Holding Over: Any holding over after the Termination or Expiration of the
said term shall be construed to be a hold over tenancy from month to month. In
addition to the liabilities and obligations provided for herein, including but
not limited to in Section 2.1, Lessee shall pay to Lessor Rent equal to one and
one half (1.5) times the monthly base rent installment due in the month
preceding the Termination or Expiration of the Lease and all other additional
rent and all other terms and conditions of the Lease shall apply, so far as
applicable. No holding over shall be deemed or construed to exercise any option
to extend or renew this Lease in lieu of full and timely exercise of any such
option as required hereunder.
26. Successors And Assigns: The covenants and conditions herein contained
shall, subject to the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of all of the parties hereto;
and all of the parties hereto shall be jointly and severally liable hereunder.
27. Estoppel Certificates: The Lessee shall at any time during the term of
this Lease, upon not less than ten (10) days prior written notice from Lessor,
execute and deliver to Lessor a statement in writing certifying that, this
Lease is unmodified and in full force and effect for, if modified, stating the
nature of such modification) and the dates to which the Rent and other charges
have been paid in advance, if any, and acknowledging that there are not, to
Lessee's knowledge, any uncured defaults on the part of Lessor hereunder or
specifying such defaults if they are claimed. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer of the
Premises. Lessee's failure to deliver such a statement within such time shall
be conclusive upon the Lessee that (a) this Lease is in full force and effect,
without modification except as may be represented by Lessor; (b) there are no
uncured defaults in Lessor's performance.
28. Time: Time is of the essence of the Lease.
29. Captions: The headings on titles to the paragraphs of this Lease are not a
part of this Lease and shall have no effect upon the construction or
interpretation of any part thereof. This instrument contains all of the
agreements and conditions made between the parties hereto and may not be
modified orally or in any other manner than by an agreement in writing signed by
all of the parties hereto or their respective successors in interest.
30. Party Names: Landlord and Tenant may be used in various places in this
Lease as a substitute for Lessor and Lessee respectively.
31. Earthquake Insurance: As a condition of Lessor agreeing to waive the
requirement for earthquake insurance, Lessee agrees that it will pay, as
additional Rent, an amount not to exceed ten thousand dollars ($10,000) per year
for earthquake insurance if Lessor desires to obtain some form of earthquake
insurance in the future, if and when available, on terms acceptable to Lessor.
If and when Lessor obtains earthquake insurance applicable to the Premises,
Lessor shall provide Lessee 90 days advance written notice and Lessee shall pay
to Lessor the annual premium amount on a pro-rata monthly basis over the term of
the applicable insurance policy.
32. Habitual Default: Notwithstanding anything to the contrary contained in
Section 14 herein, Lessor and Lessee agree that if the Lessee shall have
defaulted in the payment of Rent for three or more times during any twelve month
period during the term hereof, then such conduct shall, at the option of the
Lessor, represent a separate event of default wich cannot be cured by Lessee.
Lessee acknowledges that the purpose of this provision is to prevent repetitive
defaults by the Lessee under the Lease, which constitute a hardship to the
Lessor and deprive the Lessor of the timely performance by the Lessee hereunder.
33. Hazardous Materials
33.1 Definitions: As used herein, the following terms shall have the following
meaning:
a. The term "Hazardous Materials" shall mean (i) polychlorinated
biphenlys; (ii) radioactive materials and (iii) any chemical, material
or substance now or hereafter defined as or included in the
definitions of "hazardous substance", "hazardous water", "hazardous
material", "extremely hazardous waste", "restricted hazardous waste"
under Section 25115, 251217 or 15122.7, or listed pursuant to Section
25140 of the California Health and Safety Code, Division 20, Chapter
6.6 (Hazardous Waste Control Law), (ii) defined as "hazardous
substance" under Section 25316 of the California Health and Safety
Code, Division 20, Chapter 6.8 (Xxxxxxxxx-Precisely-Tenner Hazardous
Substances Account Act), (iii) defined as "hazardous material",
"hazardous substance", or "hazardous waste" under Section 25501 of the
California Health and Safety Code, Division 20, Chapter 6.95
(Hazardous Materials release, Response, Plans and Inventory), (iv)
defined as a "hazardous substance" under Section 25181 of the
California Health and Safety Code, Division 201, Chapter 6.7
(Underground Storage of Hazardous Substances), (v) petroleum, (vi)
asbestos, (vii) listed under Article 9 or defined as "hazardous" or
"extremely hazardous" pursuant to Article II of Title 22 of the
California Administrative Code, Division 4, Chapter 20, (viii)
designed as "hazardous substance" pursuant to Section 311 of the
Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq. or listed
pursuant to Section 1004 of the Federal Water Pollution Control Act
(33 U.S.C. 1317), (ix) defined as a "hazardous waste", pursuant to
Section 1004 of the Federal Resource Conservation and Recovery Act, 42
U.S.C. 6901 et seq., (x) defined as "hazardous substance" pursuant to
Section 101 of the Comprehensive Environmental Respibsem
Compensations, and Liability Act, 42 U.S.C. 9601 et seq., or (xi)
regulated under the Toxic Substances Control Act, 156 U.S.C. 2601 et
seq.
b. The term "Hazardous Materials Laws" shall mean any local, state and
federal laws, rules, regulations, or ordinances relating to the use,
generation, transportation, analysis, manufacture, installation,
release, discharge, storage or disposal of Hazardous Material.
c. The term "Lessor's Agents" as used herein shall mean Lessor's
agents, representatives, employees, contractors, subcontractors,
directors, officers and partners.
d. The term "Lessee's Agents" as used herein shall mean Lessee's
agents, representatives, employees, contractors, subcontractors,
directors, officers, partners, invitees or any other person in or
about the Premises.
33.2 Lessee's Right to Investigate: Lessee shall be entitled to cause such
inspection, soils and ground water tests, and other evaluations to be made of
the Premises as Lessee deems necessary regarding (i) the presence and use of
Hazardous Materials in or about the Premises, and (ii) the potential for
exposure to Lessee's employees and other persons to any Hazardous Materials used
and stored by previous occupants in or about the Premises. Lessee shall provide
Lessor with copies of all inspections, tests and evaluations. Lessee shall
indemnify, defend and hold Lessor harmless from any cost, claim or expense
arising from such entry by Lessee or from the performance of any such
investigation by such Lessee.
33.3 Lessor's Representations: Lessor hereby represents and warrants to the best
of Lessor's knowledge that the Premises are, as of the date of this Lease, in
compliance with all Hazardous Material laws.
33.4 Lessee's Obligation to Indemnify: Lessee, at its sole cost and expense,
shall indemnify, defend, protect and hold Lessor and Lessor's Agents harmless
from and against any and all cost or expenses, including those described under
subparagraphs i, ii and iii herein below set forth, arising from or caused in
whole or in part, directly or indirectly by:
a. Lessee's or Lessee's Agents' use, analysis, storage,
transportation, disposal, release, threatened release, discharge or
generation of Hazardous Material to, in, on, under, about or from the
Premises; or
b. Lessee's or Lessee's Agents failure to comply with Hazardous
Material laws; or
c. Any release of Hazardous Material to, in, on, under, about, from or
onto the Premises caused by Lessee or Lessee's Agents or occurring
during the Lease Term, except ground water contamination from other
parcels where the source is from off the Premises:
The cost and expenses indemnified against include, but are not limited to the
following:
i. Any and all claims, actions, suits, proceedings, losses, damages,
liabilities, deficiencies, forfeitures, penalties, fines, punitive
damages, cost or expenses;
ii. Any claim, action, suit or proceeding for personal injury
(including sickness, disease, or death), tangible or intangible
property damage, compensation for lost wages, business income, profits
or other economic loss, damage to the natural resources of the
environment, nuisance, pollution, contamination, leaks, spills,
release or other adverse
effects on the environment;
iii. The cost of any repair, clean-up, treatment or detoxification of the
Premises necessary to bring the Premises into compliance with all Hazardous
Material Laws, including the preparation and implementation of any closure,
disposal, remedial action, or other actions with regard to the Premises,
and expenses (including, without limitation, reasonable attorney's fees and
consultants fees, investigation and laboratory fees, court cost and
litigation expenses).
33.5 Lessee's Obligation to Remediate Contamination: Lessee shall, at its sole
cost and expense, promptly take any and all action necessary to remediate
contamination of the Premises by Hazardous Material as herein defined.
33.6 Obligation to Notify: Lessor and Lessee shall each give written notice to
the other as soon as reasonably practical of (i) any communication received from
any governmental authority concerning Hazardous Material which related to the
Premises and (ii) any contamination of the Premises by Hazardous Material which
constitutes a violation of any Hazardous Material law.
33.7 Survival: The obligations of Lessee under this Section 33 shall survive
the Expiration or earlier Termination of the Lease.
33.8 Certification and Closure: On or before the Expiration or earlier
Termination of this Lease, Lessee shall deliver to Lessor a certification
executed by Lessee stating that, to the best of Lessee's knowledge, there exists
no violation of Hazardous Material Laws resulting from Lessee's obligation in
Paragraph 33. If pursuant to local ordinance, state or federal law, Lessee is
required, at the expiration of the Lease Term, to submit a closure plan for the
Premises to a local, state or federal agency, then Lessee shall furnish to
Lessor a copy of such plan.
33.9 Prior Hazardous Materials: Lessee shall have no obligation to clean up, or
to comply with any law regarding, or to reimburse, indemnify, defend, release or
hold Lessor harmless with respect to, any Hazardous Material or wastes
discovered on the Premises which were not introduced into, in, on, about, from
or under the Premises during the Lessee's Lease term.
34. Brokers: Lessor and Lessee represent that they have not utilized or
contacted a real estate broker or finder with respect to this Lease other than
Cornish & Xxxxx Commercial ("CC") and Lessee agrees to indemnify and hold Lessor
harmless against any claim, cost, liability or cause of action asserted by any
broker or finder claiming through Lessee other than CC. Lessor shall at its sole
cost and expense pay the brokerage commission agreed to with CC in connection
with this transaction. Lessor represents and warrants that it has not utilized
or contacted a real estate broker or finder with respect to this Lease other
than CC and Lessor agrees to indemnify and hold Lessee harmless against any
claim, cost, liability or cause of action asserted by any broker or finder
claiming through Lessor.
35. Approvals: Whenever in this Lease the Lessor's or Lessee's consent is
required, such consent shall not be unreasonably or arbitrarily withheld or
delayed. In the event that the Lessor or Lessee does not respond to a request
for any consents which may be required of it in this Lease within ten business
days of the request of such consent in writing by the Lessee or Lessor, such
consent shall be deemed to have been given by the Lessor or Lessee.
36. Authority: Each party executing this Lease represents and warrants that he
or she is duly authorized to execute and deliver the Lease. If executed on
behalf of a corporation, that the Lease is executed in accordance with the
by-laws of said corporation (or a partnership that the Lease is executed in
accordance with the partnership agreement of such partnership), that no other
party's approval or consent to such execution and delivery is required, and that
the Lease is binding upon said individual, corporation (or partnership) as the
case may be in accordance with its terms.
37. Indemnification of Lessor: Except to the extent caused by the sole
negligence or willful misconduct of Lessor or Lessor's Agents, Lessee shall
defend, indemnify and hold Lessor harmless from and against any and all
obligations, losses, costs, expenses, claims, demands, attorney's fees,
investigation costs or liabilities on account of, or arising out of the use,
condition or occupancy of the Premises or any act or omission to act of Lessee
or Lessee's Agents or any occurrence in, upon, about or at the Premises,
including, without limitation, any of the foregoing provisions arising out of
the use, generation, manufacture, installation, release, discharge, storage, or
disposal of Hazardous Materials by Lessee or Lessee's Agents. It is understood
that Lessee is and shall be in control and possession of the Premises and that
Lessor shall in no event be responsible or liable for any injury or damage or
injury to any person whatsoever, happening on, in, about, or in connection with
the Premises, or for any injury or damage to the Premises or any part thereof.
This Lease is entered into on the express condition that Lessor shall
not be liable for, or suffer loss by reason of injury to person or property,
from whatever cause, which in any way may be connected with the use, condition
or occupancy of the Premises or personal property located herein. The provisions
of this Lease permitting Lessor to enter and inspect the Premises are for the
purpose of enabling Lessor to become informed as the whether Lessee is complying
with the terms of this Lease and Lessor shall be under no duty to enter, inspect
or to perform any of Lessee's covenants set forth in this Lease. Lessee shall
further indemnify, defend and hold harmless Lessor from and against any and all
claims arising from any breach or default in the performance of any obligation
to Lessee's part to be performed under the terms of this Lease. The provisions
of Section 37 shall survive Lease Expiration or Termination with respect to any
damage, injury or death occurring during the lease term.
38. Lessor's Liability: If Lessee should recover a money judgment against Lessor
arising in connection with this Lease, the judgment shall be satisfied only out
of the Lessor's interest in the Premises and neither Lessor or any of its
partners shall be liable personally for any deficiency.
39. Miscellaneous Provisions: All rights and remedies hereunder are cumulative
and not alternative to the extent permitted by law and are in addition to
all other rights or remedies in law and in equity.
40. Choice of Law: This Lease shall be construed and enforced in accordance with
the substantive laws of the State of California. The language of all parts of
this lease shall in all cases be construed as a whole according to its fair
meaning and not strictly for or against either Lessor or Lessee.
41. Entire Agreement: This Lease is the entire agreement between the parties,
and there are no agreements or representations between the parties except as
expressed herein. Except as otherwise provided for herein, no subsequent change
or addition to this Lease shall be binding unless in writing and signed by the
parties hereto.
In Witness Whereof, Lessor and Lessee have executed these presents, the day and
year first above written.
Lessor Lessee
Xxxx & Xxxx Developers Lynx Real-Time Systems, Inc.
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxx Xxxxx
----------------------------------- -----------------------------------
signature of authorized representative signature of authorized representative
Xxxx X. Xxxx Xxxxx Xxxxx
-------------------------------------- --------------------------------------
printed name printed name
General Partner President
-------------------------------------- --------------------------------------
title title
1/31/95 January 26, 1995
-------------------------------------- --------------------------------------
date date
Exhibit B
Tenant Improvements to be Provided by Lessor for the Premises
Lessor shall complete the following tenant improvements per Exhibit B.1.
1. New walls and doors.
2. Unisex shower.
Lessor shall also complete the following improvements for the Premises:
1. New paint and carpet.
2. New ceiling tiles as necessary.
3. Remove existing power poles as required.
4. Sheet rock windows over warehouse.
Lessor and Lessee hereby agree as follows with regard to Lessee Improvements:
1. Lessee Improvements. Reference herein to "Lessee Improvements" shall
include all work to be done in the Premises pursuant to Final P1ans per
Exhibit B.1. Lessor shall construct the Lessee Improvements in a good
and workmanlike manner using materials of a customary quality. Lessor and
Lessee have each initialed the Final Plans indicating their approval of
same.
2. Final Plans. No further changes shall be made to the Final Plans without
the consent of both Lessor and Lessee, and then only after Lessee has agreed to
pay for any excess costs, including design and engineering fees, resulting from
such changes. Lessor, with Lessee's cooperation agrees to make all changes: (i)
required by any public agency to conform with governmental regulations, or (ii)
requested in writing by Lessee subject to Lessor's reasonable approval. Any
costs resulting from Lessee's changes to the Final Plans and any additional
costs associated with the public agency approvals shall be considered costs of
Lessee's Improvements. Any costs for Additional Improvements as such term is
defined in Paragraph 2 of the Lease shall be amortized as provided therein, up
to the maximum stated therein. Any costs incurred for the Additional
Improvements in excess of such maximum shall be paid by Lessee to Lessor within
ten (10) days of billing therefore. Costs related to changes shall include,
without limitation, any architectural, design and government fees.
