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EXHIBIT 10.21
OFFICE LEASE
THIS OFFICE LEASE ("Lease"), dated March 25, 1999, is made between
Xxxxxx Xxxx Real Estate Services, Inc. "Landlord"), Virage Logic Corporation
("Tenant") and N/A ("Guarantor").
In consideration of the mutual covenants in this Lease, Landlord and
Tenant agree as follows:
1. BASIC LEASE INFORMATION
1.1 Basic Lease Information. In addition to the terms that are
defined elsewhere in this Lease, these terms are used in this
Lease:
(a) LANDLORD'S ADDRESS: Xxxxxx Xxxx Real Estate
Services, Inc.
00000 XX 00XX Xxxxxx, Xxxxx 000
Xxxxxxxx XX 00000
(000) 000-0000
Fax (000) 000-0000
(b) TENANTS ADDRESS: Virage Logic Corporation
00000 Xxxxxxxx Xxxx.
Xxxxxxx XX 00000
(000) 000-0000
Fax (000) 000-0000
(c) GUARANTOR'S ADDRESS: N/A
(d) BUILDING ADDRESS: 00000 XX 00xx Xxxxxx. Xxxxx 000
Xxxxxxxx XX 00000
(e) PREMISES: The Premises shown on Exhibit A to this Lease.
(f) RENTABLE AREA OF THE PREMISES: square feet (2.318 sq. ft. +
371 sq. ft. (load factor))
(g) USEABLE AREA OF THE BUILDING: N/A
(h) LOAD FACTOR: 16%
(i) RENTABLE AREA OF THE BUILDING: N/A square feet.
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(j) TERM: The period beginning on the Commencement Date and
expiring on the Expiration Date.
(k) COMMENCEMENT DATE: Date to be mutually agreed upon. or as
extended pursuant to the work letter.
(l) EXPIRATION DATE: 60 months after commencement. The
Expiration Date shall be the last day of a month.
(m) SECURITY DEPOSIT: $ 6.275.00
(n) MONTHLY RENT: Months 1-36 - $5.602. months 37-60 - $6.275.
(o) BASE YEAR: The calendar year 1999
(p) BASE OPERATING EXPENSES: The operating expenses paid or
incurred by Landlord in the base year.
(q) BASE PROPERTY TAXES: The amount of property taxes for the
tax year ending December 31 of the Base Year.
(r) TENANTS PERCENTAGE SHARE: 12.75 (determined by dividing the
rentable area of the Premises by the rentable area of the
Building, multiplying the resulting quotient by 100, and
rounding to the 3rd decimal place).
(s) PARKING SPACES: 9 spaces according to Article 26.
(t) PARKING CHARGE: $ 0 per parking space per month, subject to
adjustments specified in Article 26.
(u) PERMITTED USE: General office
(v) BROKER: Colliers International
(w) BUSINESS HOURS: The term "business hours" means 7:00
a.m. to 6:00 p.m. on Monday through Friday, except holiday
(as that term is defined below), and 8 a.m. to 1 p.m. on
Saturdays, except holidays. The term "holidays" means New
Year Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, and Christmas Day.
1.2 Definitions
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(a) ADDITIONAL RENT: Any amounts that this Lease requires
Tenant to pay in addition to monthly rent.
(b) BUILDING: The building located on the land and of which
the Premises are a part, including, without limitation,
the parking lot, walkways, driveways, fences and
landscaping.
(c) LAND: The land on which the Building is located and
which is described on Exhibit B.
(d) RENT: The Monthly Rent and Additional Rent.
(e) WORKLETTER: The workletter attached to this Lease as
Exhibit C (if any).
If any other provision of this Lease contradicts any definition
of this Article, the other provision will prevail.
1.3 Exhibits. The following addenda and exhibits are attached to
this Lease and are made part of this Lease:
ADDENDA: Riders #28 & #29
EXHIBIT A--Drawing of the Premises
EXHIBIT B--Legal Description of the Land
EXHIBIT C--Workletter
EXHIBIT D--Rules and Regulations
EXHIBIT E--Commencement Date Certificate
2. AGREEMENT TO LEASE. Landlord leases the Premises to Tenant, and Tenant
leases the Premises from Landlord, in accordance to the and conditions
of this Lease. The duration of this Lease will be the Term. The Term
will commence on the Commencement Date and will expire on the Expiration
Date.
3. DELIVERY OF PREMISES
3.1 Delivery of Possession. Landlord will be deemed to have
delivered possession of the Premises to Tenant on the
Commencement as it may be adjusted pursuant to the workletter.
Landlord will construct or install in the Premises the
improvements to be construct or installed by Landlord according
to the workletter. If no workletter is attached to this Lease,
it will be deemed that
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Landlord delivered to Tenant possession of the Premises "as is"
in its present condition on the Commencement Date. Tenant
acknowledges neither Landlord nor its agents or employees have
made any representations or warranties as to the suitability or
fitness of the Prer for the conduct of Tenant's business or for
any other purpose, nor has Landlord or its agents or employees
agreed to undertake any alterations or construct any Tenant
improvements to the Premises except as expressly provided in
this Lease and the workletter. If any reason Landlord cannot
deliver possession of the Premises to Tenant on the Commencement
Date, this Lease will not be void voidable, and Landlord will
not be liable to Tenant for any resultant loss or damage. Tenant
will execute the Commencement Date Certificate attached to this
Lease as Exhibit E within 15 days of Landlord's request.
3.2 Early Entry. If Tenant is permitted entry to the Premises prior
to the Commencement Date for the purpose of installing fixtures
any other purpose permitted by Landlord, the early entry will be
at Tenant's sole risk and subject to all the terms and
provisions of Lease as though the Commencement Date had
occurred, except for the payment of rent, which will commence on
the Commencement Date. Tenant, its agents, or employees will not
interfere with or delay Landlord's completion of construction of
the improvements rights of Tenant under this Section 3.2 will be
subject to the requirements of all applicable building codes,
zoning requirements, a federal. state, and local laws, rules,
and regulations, so as riot :o interfere with Landlord's
compliance with all laws, including the obtaining of a
certificate of occupancy for the Premises. Landlord has the
right to impose additional conditions on Tenant's early en that
Landlord, in its reasonable discretion, deems appropriate,
including without limitation, proof of insurance.
4. MONTHLY RENT. Throughout the term of this Lease, Tenant will pay monthly
rent to Landlord as rent for the Premises. Monthly rent will be paid in
advance on or before the first day of each calendar month of the Term.
If the Term commences on a day other than the first day of calendar
month or ends on a day other than the last day of a calendar month, then
monthly rent will be appropriately prorated by Landlord based on the
actual number of calendar days in such month. If the Term commences on a
day other than the first day of a calendar month, then the prorated
monthly rent for such month will be paid on or before the first day of
the Term. Monthly rent will be paid to Landlord, without writ notice or
demand, and without deduction or offset, in lawful money of the United
States of America at Landlord's address, or to such other address as
Landlord may from time to time designate in writing.
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5. OPERATING EXPENSES
5.1 General
(a) Tenant will pay to Landlord throughout the Term of this
Lease as rent for the Premises the sums specified in the
basic lease information as the base rent, provided that
the rent payable during each calendar year subsequent to
the base year will be base rent, increased by Tenant's
percentage share of the total dollar increase, if any,
in operating expenses paid or incurred by Landlord in
that year over the base operating expenses, and also
increased by Tenant's percentage share of the total d(
increase, if any, in property taxes paid by Landlord in
that year over the base property taxes. The increased
rent due pursuant to this Section 5 is referred to as
"escalation rent."
(b) Escalation rent will be paid monthly on an estimated
basis, with subsequent annual reconciliation, in
accordance with the following procedures:
(1) As soon after December of each calendar year as
practicable, Landlord will give Tenant notice of
its estimate any escalation rent due for the
ensuing calendar year. On or before the first
day of each month during the end calendar year,
Tenant will pay Landlord 1/12th of the estimated
escalation rent: however, if the notice is not g
in December, Tenant will continue to pay on the
basis of the prior year's estimate until the
month after the not given. If at any time or
times it appears to Landlord that the escalation
rent for the current calendar year will' from
its estimate by more than 5%, Landlord will, by
notice to Tenant, revise its estimate for the
year, and subsequent payments by Tenant for such
year will be based upon the revised estimate.
(2) As soon as practicable after the end of each
calendar year, Landlord will deliver to Tenant a
statement of the escalation rent for the
calendar year, accompanied by a statement
showing the operating expenses and property
taxes. The statement will be final and binding
upon Landlord and Tenant as the amount of the
operating expense and property taxes unless
objected to in writing within 30 days after it
is delivered to Tenant. If Landlord's statement
discloses that Tenant owes an amount that is
less than the estimated payments for such
calendar year previously made by Tenant,
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Landlord will credit such excess first against
any sums then owed by Tenant to Landlord and
then against the next payments of rent. If
Landlord's statement discloses that Tenant owes
the estimated payments for such calendar year
previously made by Tenant, Tenant will pay the
deficiency to Landlord within 30 days after
delivery of the statement.
(3) The amount of escalation rent for any fractional
year in the Term will be appropriately prorated.
The termini of this Lease will not affect the
obligations of Landlord and Tenant pursuant to
paragraph (b) to be performed such termination.
(c) As used in this Lease, the term "operating expenses
means:
(1) All reasonable costs of management, operation,
and maintenance of the Building, including
without limitation and personal property taxes
and assessments (and any tax levied in whole or
in part in lieu of or in addition t property
taxes); wages, salaries, and compensation of
employees; consulting, accounting, legal,
janitorial, maintenance, guard, and other
services; management fees and costs (charged by
Landlord, any affiliate of Landlord, or any
other entity managing the Building and
determined at a rate consistent with prevailing
marl rates for comparable services and
buildings); reasonable reserves for operating
expenses; that part of office r rental value of
space in the Building used or furnished by
Landlord to enhance, manage, operate, and
maintain Building; power, water, waste disposal,
sprinkler, fire, and life safety systems,
heating, ventilating, air conditioning, and
other utilities; materials and supplies;
maintenance and repairs: insurance obtained by
Land common area signage, and any other costs,
charges and expenses that under generally
accepted accounting principles would be regarded
as management, maintenance, and operating
expenses; and
(d) The operating expenses will not include:
(1) depreciation on the Building (other than
depreciation on personal property, equipment,
window coverings on exterior windows provided by
Landlord and carpeting in public corridors and
common areas);
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(2) costs of alterations of space or other
improvements made for Tenants of the Building;
(3) finders' fees and real estate brokers'
commissions;
(4) ground lease payments, mortgage principal, or
interest;
(5) capital items other than those referred to in
clause (b)(2) above;
(6) costs of replacements to personal property and
equipment for which depreciation costs are
included as an opera expense;
(7) costs of excess or additional services provided
to any Tenant in the Building that are directly
billed to such Tenants;
(8) the cost of repairs due to casualty or
condemnation that are reimbursed by third
parties;
(9) any cost due to Landlord's breach of this Lease;
(10) any income, estate, inheritance, or other
transfer tax and any excess profit, franchise,
or similar taxes on Landlord's business;
(11) all costs, including legal fees, relating to
activities for the solicitation and execution of
leases of space in the Building; and
(12) any legal fees incurred by Landlord in enforcing
its rights under other leases for premises in
the Building.
(e) Tenant acknowledges that Landlord has not made any
representation or given Tenant any assurances that the
operating expenses base will equal or approximate the
actual operating expenses per square foot of rentable
area of the Premises f. any calendar year during the
Term.
5.2 Estimated Payments. During each calendar year or partial
calendar year in the Term, in addition to monthly rent, Tenant
will pa: Landlord on the first day of each month an amount equal
to 1/12 of the product of Tenant's share multiplied by the
"estimated operating expenses" (defined below) for such calendar
year. "Estimated operating expenses" for any calendar year means
Landlor reasonable estimate of operating expenses for such
calendar year, less the product of the operating expenses base,
multiplied by the rentable
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area of the Building and will be subject to revision according
to the further provisions of this Section 5.2 and Section 53.
During any partial calendar year during the Term, estimated
operating expenses will be estimated on a full year basis.
During each December during the Term, or as soon after each
December as practicable, Landlord will give Tenant written
notice of estimated operating expenses for the ensuing calendar
year. On or before the first day of each month during the
ensuing calendar year (or e~ month of the term, if a partial
calendar year), Tenant will pay to Landlord 1/12 of the product
of Tenant's share multiplied by the estimated operating expenses
for such calendar year', however, if such written notice is not
given in December, Tenant will continue make monthly payments on
the basis of the prior year's estimated operating expenses until
the month after such written notice is g at which time Tenant
will commence making monthly payments based upon the revised
estimated operating expenses. In the more Tenant first makes a
payment based upon the revised estimated operating expenses,
Tenant will pay to Landlord for each month `~ has elapsed since
December the difference between the amount payable based upon
the revised estimated operating expenses and amount payable
based upon the prior year's estimated operating expenses. If at
any time or times it reasonably appears to Landlord: that the
actual operating expenses for any calendar year will vary from
the estimated operating expenses for such calendar year,
Landlord may. by written notice to Tenant, revise the estimated
operating expenses for such calendar year, and subsequent
payment by Tenant in such calendar year will be based upon such
revised estimated operating expenses.
5.3 Annual Settlement. As soon as practicable after the end of each
calendar year, Landlord will deliver to Tenant a statement of
amounts payable under Section 5.1 for such calendar year
prepared and certified by Landlord. Such certified statement
will be final and binding upon Landlord and Tenant unless Tenant
objects to it in writing to Landlord within 30 days after it is
given to Tenant. such statement shows an amount owing by Tenant
that is less than the estimated payments previously made by
Tenant for such calendar year, the excess will be held by
Landlord and credited against the next payment of rent; however,
if the Term has ended a Tenant was not in default at its end,
Landlord will refund the excess to Tenant. If such statement
shows an amount owing by Tenant that is more than the estimated
payments previously made by Tenant for such calendar year,
Tenant will pay the deficiency to Landlord within 30 days after
the delivery of such statement. Tenant may review Landlord's
records of the operating expenses, at Tenant's sole cost and
expense, at the place Landlord normally
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maintains such records during Landlord's normal business hours
up reasonable advance written notice.
5.4 Final Proration. If this Lease ends on a day other than the last
day of a calendar year, the amount of increase (if any) in the
opera expenses payable by Tenant applicable to the calendar year
in which this Lease ends will be calculated on the basis of the
number days of the term falling within such calendar year, and
Tenant's obligation to pay any increase or Landlord's obligation
to refund a overage will survive the expiration or other
termination of this Lease.
5.5 Additional Rent. Amounts payable by Tenant according to this
Article 5 will be payable as rent, without deduction or offset.
If Tenant fails to pay any amounts due according to this Article
5, Landlord will have all the rights and remedies available to
it on account of Tenant's failure to pay rent.
5.6 Tenant Audit. Tenant may have performed an audit of the amount
or the calculation of the escalation rent, provided that (a) Ten
shall have no right to have such an audit performed for any
Additional Rent unless Tenant provides notice of Tenant's
intention t so within 30 days of the date that Tenant receives
the Adjustments Statement related to such Additional Rent, (b)
any such audit 5 be at Tenant's sole cost and expense, (c) the
audit shall be performed by a recognized independent accounting
firm that is not been compensated on a contingency fee basis,
and (d) the audit shall not unreasonably interfere with the
business of Landlord or its agent.
6. INSURANCE
6.1 Landlord's Insurance. At all times during the Term, Landlord
will carry and maintain:
(a) Fire and extended coverage insurance covering the
Building. its equipment, common area furnishings, and
leasehold improvements in the Premises to the extent of
the Tenant finish allowance (as that term is defined in
the Workletter);
(b) Bodily injury and property damage insurance;
(c) A commercial general liability insurance policy
providing coverage for bodily injury liability, property
damage liability personal injury liability with in such
amounts and with such endorsements as Landlord may
reasonably determine from to time; and
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(d) Suchother insurance as Landlord reasonably determines
from time to time, which may include, without
limitation, earthquake, flood and plate glass insurance.
The insurance coverages and amounts will be reasonably
determined by Landlord, based on coverages carried by prudent
owner comparable buildings in the vicinity of the Building.
6.2 Tenant's Insurance. At all times during the Term, Tenant will
carry and maintain, at Tenant's expense, the following insurance
the amounts specified below or such other amounts as Landlord
may from time to time reasonably request, with insurance comp
and on forms satisfactory to Landlord, and naming as additional
insureds, Landlord, Xxxxxx Xxxx Management Group, Inc. And
Landlord's lender:
(a) A commercial general liability insurance policy
providing coverage for bodily injury liability, property
damage liability personal injury liability with minimum
limits of not less than $1,000,000 Combined Single Limit
per accident and $2,000,000 General Aggregate. Such
insurance policies shall include Blanket Contractual
Liability and Owners and Contractors Protective
endorsements. Landlord may increase or decrease the
required limit as it deems necessary base periodic
insurance reviews. The insurance required by this
Section shall be on an occurrence basis, and
underwritten acceptable insurer licensed to do business
in the State of Washington. If Tenant is unable to
obtain this insurance on an occurrence basis, it may be
on a claims-made basis provided that, in addition,
Tenant, at Tenant's expense, obtains an owner's
protective policy, issued in the name of Landlord only,
which is on an occurrence basis for the limits required
by this Section 9.2.2(a). This insurance shall be
written as a primary policy not contributing with and
not in excess of coverage which Landlord may carry;
(b) A special form policy of property insurance (or the
equivalent) covering all Tenant's personal property,
including but not limited to Tenants furniture,
fixtures, leasehold improvements, equipment and
inventory, in the amount of its full replacement costs.
Such property insurance coverage shall be a minimum
insure against loss resulting from fire, lightning and
extended or broad form perils. Landlord shall be named
as Loss Payee as its interest may appear in tenant
improvement and betterments; and
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(c) Business interruption insurance in an amount sufficient
to protect Tenant against any additional costs and lost
income associated with a move to temporary space due to
a business interruption.
6.3 Forms of Policies. Certificates of insurance, together with
copies of the endorsements, when applicable, naming Landlord and
others specified by Landlord as additional insureds, will be
delivered to Landlord prior to Tenant's occupancy of the
Premises and from time to time at least ten days prior to the
expiration of the term of each such policy. All commercial
general liability or comparable policies maintained by Tenant
will name Landlord and such other persons or firms as Landlord
specifies from time to 1 as additional insureds, entitling them
to recover under such policies for any loss sustained by them,
their agents, and employees as result of the negligent acts or
omissions of Tenant. All such policies maintained by Tenant will
provide that they may not be terminated nor may coverage be
reduced except after 30 days' prior written notice to Landlord.
All commercial general liability as property policies maintained
by Tenant will be written as primary policies, not contributing
with and not supplemental to the covenant that Landlord may
carry.
6.4 Waiver of Subrogation. Landlord and Tenant each waive any and
all rights to recover against the other or against any other
tenant occupant of the Building, or against the officers,
directors, shareholders, partners, joint venturers, employees,
agents, customers, invitees, or business visitors of such other
party or of such other tenant or occupant of the Building, for
any loss or damage to such waiving party arising from any cause
covered by any property insurance required to be carried by such
party pursuant to this Article or any other property insurance
actually carried by such party to the extent of the limits of
such policy. Landlord and Tenant from time to time will cause
their respective insurers to issue appropriate waiver of
subrogation rights endorsements to all property insurance
policies carried in connection with the Building or the Premises
or the contents of the Building or the Premises. Tenant agrees
to cause all other occupants of the Premises claiming by, under,
or through Tenant to execute and deliver to Landlord such waiver
of claims and to obtain such waiver of subrogation rights
endorsements.
6.5 Adequacy of Coverage. Landlord, its agents, and employees make
no representation that the limits of liability specified to be
ca] by Tenant pursuant to this Article 6 are adequate to protect
Tenant. If Tenant believes that any of such insurance coverage
is inadequate, Tenant will obtain such additional insurance
coverage as Tenant deems adequate, at Tenant's sole expense.
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7. USE. The Premises will be used only for the purposes set forth in
Article 1.1 and purposes incidental to that use, and for no other
purpose. Tenant will use the Premises in a careful, safe, and proper
manner. Tenant will not use or permit the Premises to be used or
occupied for as purpose or in any manner prohibited by any applicable
laws, and shall refrain from using or permitting the use of the Premises
or any portion thereof as living quarters, sleeping quarters or for
lodging purposes. Tenant will not commit waste or suffer or permit waste
to be committed on, or about the Premises. Tenant will conduct its
business and control its employees, agents, and invitees in such a
manner as not to create nuisance or interfere with, annoy, or disturb
any other Tenant or occupant of the Building or Landlord in its
operation of the Building.
8. REQUIREMENTS OF LAW
8.1 General. At its sole cost and expense, Tenant will promptly
comply with all laws, statutes, ordinances, and governmental
rules, regulations, or requirements now in force or in force
after the date of the Lease, with the requirements of any board
of fire under or other similar body constituted now or after the
date, with any direction or occupancy certificate issued
pursuant to any law by public officer or officers, as well as
with the provisions of all recorded documents affecting the
Premises, insofar as they relate to condition, use, or occupancy
of the Premises, excluding requirements of structural changes to
the Premises or the Building, unless required by the unique
nature of Tenant's use or occupancy of the Premises.
8.2 Hazardous Materials
(a) For purposes of this Lease, "hazardous materials" means
any explosives, radioactive materials, hazardous wastes,
or hazardous substances, including without limitation
substances defined as "hazardous substances" in the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. #~
96019657; the Hazardous Materials Transportation Act of
1975, 49 U.S.C. ## 18011812; the Resource Conservation
and Recovery Act of 1976, 42 U.S.C. ## 69016987; or any
other federal, state, or local statute, law, ordinance,
code, rule, regulation, order, or decree regulating,
relating to, or imposing liability or standards of
conduct concerning hazardous materials, waste, or
substances now or at any time hereafter in effect
(collectively, "hazardous materials laws").
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(b) Tenant will not cause or permit the storage, use,
generation, or disposition of any hazardous materials
in, on, or about the Premises or the Building by Tenant,
its agents, employees, or contractors. Tenant will not
permit the Premises to be used operated in a manner that
may cause the Premises or the Building to be
contaminated by any hazardous materials in violation of
any hazardous materials laws. Tenant will immediately
advise Landlord in writing of(l) any and all
enforcement, cleanup, remedial, removal, or other
governmental or regulatory actions instituted,
completed, or threatened pursuant to a hazardous
materials laws relating to any hazardous materials
affecting the Premises; and (2) all claims made or
threatened any third party against Tenant, Landlord, or
the Premises relating to damage, contribution, cost
recovery, compensation, 1 or injury resulting from any
hazardous materials on or about the Premises. Without
Landlord's prior written consent, Ten will not take any
remedial action or enter into any agreements or
settlements in response to the presence of any hazardous
materials in, on, or about the Premises.
(c) Tenant will be solely responsible for and will defend,
indemnify and hold Landlord, its agents, and employees
harmless f and against all claims, costs, and
liabilities, including attorneys' fees and costs,
arising out of or in connection with Tenant breach of
its obligations in this Article 8. Tenant will be solely
responsible for and will defend, indemnify, and hold
Landlord, its agents, and employees harmless from and
against any and all claims, costs, and liabilities,
including attorney's fees and costs, arising out of or
in connection with the removal, cleanup, and restoration
work and materials necessary to return the Premises and
any other property of whatever nature located in or
around the Building to their condition existing prior to
the appearance of Tenant's hazardous materials on the
Premises. Tenant's obligations under this Article 8 will
survive the expiration or other termination of this
Lease.
8.3 Certain Insurance Risks. Tenant will not do or permit to be done
any act or thing upon the Premises or the Building which would
(a) jeopardize or be in conflict with fire insurance policies
covering the Building and fixtures and property in the Building;
(b) mean the rate of fire insurance applicable to the Building
to an amount higher than it otherwise would be for Tenant's
authorized use of 1 Building; or (c) subject Landlord to any
liability or responsibility for injury to any person or persons
or to property by reason of a business or operation being
carried on upon the Premises.
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9. ASSIGNMENT AND SUBLETTING
9.1 General. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors, and assigns,
covenant that it will not assign, mortgage, or encumber this
Lease, nor sublease, nor permit the Premises or any part of the
Premises to be u or occupied by others, without the prior
written consent of Landlord in each instance, which consent
shall not be unreasonably withheld. Any assignment or sublease
in violation of this Article 9 will be void. If this Lease is
assigned, or if the Premises or any part of the Premises are
subleased or occupied by anyone other than Tenant, Landlord
after default by Tenant, collect rent from the assignee,
subtenant, or occupant, and apply the net amount collected to
rent. No assignment, sublease, occupancy, or collection will be
deemed (a) a waiver of the provisions of this Section 9.1; (b)
the acceptance the assignee, subtenant, or occupant as Tenant;
or (c) a release of Tenant from the further performance by
Tenant of covenants on part of Tenant contained in this Lease.
The consent by Landlord to an assignment or sublease will not be
construed to relieve Tenant from obtaining Landlord's prior
written consent in writing to any further assignment or
sublease. No permitted subtenant may as: or encumber its
sublease or further sublease all or any portion of its subleased
space, or otherwise permit the subleased space or a part of its
subleased space to be used or occupied by others, without
Landlord's prior written consent in each instance, which con
shall not be unreasonably withheld.
9.2 Submission of Information. If Tenant requests Landlord's consent
to a specific assignment or subletting, Tenant will submit in
writing to Landlord (a) the name and address of the proposed
assignee or subtenant; (b) the business terms of the proposed
assignment or sublease; (c) reasonably satisfactory information
as to the nature and character of the business of the proposed
assignee or sub and as to the nature of its proposed use of the
space; (d) banking, financial, or other credit information
reasonably sufficient to ex Landlord to determine the financial
responsibility and character of the proposed assignee or
subtenant; and (e) the proposed form assignment or sublease for
Landlord's approval.
9.3 Payments to Landlord. If Landlord consents to a proposed
assignment or sublease, then Landlord will have the right to
require Tenant to pay to Landlord a sum equal to (a) any rent
or. other consideration paid to Tenant by any proposed
transferee that (after deducting the costs of Tenant, if any, in
effecting the assignment or sublease, including reasonable
alteration costs, commissions legal fees) is in excess of the
rent allocable to the transferred space then being paid by
Tenant to Landlord pursuant to this
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15
Lease (b) any other profit or gain (after deducting any
necessary expenses incurred) realized by Tenant from any such
sublease or assignment; (c) Landlord's reasonable attorneys'
fees and costs incurred in connection with negotiation, review,
and processing of the transfer. All such sums payable will be
payable to Landlord at the time the next payment of monthly rent
is due.
9.4 Prohibited Transfers. The transfer of a majority of the issued
and outstanding capital stock of any corporate Tenant or
subtenant this Lease, or a majority of the total interest in any
partnership, limited liability company or other form of entity
that is a Tenant or subtenant, however accomplished, and whether
in a single transaction or in a series of related or unrelated
transactions, will be deer an assignment of this Lease or of
such sublease requiring Landlord's consent in each instance. For
purposes of this Article 9, the transfer of outstanding capital
stock of any corporate Tenant will not include any sale of such
stock by persons other than those deemed "insiders" within the
meaning of the Securities Exchange Act of 1934, as amended,
effected through the "over-the-counter market" or through any
recognized stock exchange.
9.5 Permitted Transfer. Landlord consents to an assignment of this
Lease or sublease of all or part of the Premises to a
wholly-owned subsidiary of Tenant or the parent of Tenant or to
any corporation into or with which Tenant may be merged or
consolidated; provided that Tenant promptly provides Landlord
with a fully executed copy of such assignment or sublease and
that Tenant is not released from liability under the lease.
10. RULES AND REGULATIONS. Tenant and its employees, agents, licensees, and
invitees will at all times observe faithfully, and comply strictly with,
the rules and regulations set forth in Exhibit D. Landlord may from time
to time reasonably amend, delete, or modify existing and regulations, or
adopt reasonable new rules and regulations for the use, safety,
cleanliness, and care of the Premises and the Building, and comfort,
quiet, and convenience of occupants of the Building. Modifications or
additions to the rules and regulations will be effective upon days'
prior written notice to Tenant from Landlord. In the event of any breach
of any rules or regulations or any amendments or additions to such rules
and regulations, Landlord will have all remedies that this Lease
provides for default by Tenant, and will in addition have any remedies
available at law or in equity, including the right to enjoin any breach
of such rules and regulations. Landlord will not be liable to Tenant for
violation of such rules and regulations by any other Tenant, its
employees, agents, visitors, or licensees or any other person. In the
event of. conflict between the provisions of this Lease and the rules
and regulations, the provisions of this Lease will govern.
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11. COMMON AREAS. As used in this Lease, the term "common areas" means,
without limitation, the hallways, entryways, stairs, elevators,
driveways, walkways, terraces, docks, loading areas, restrooms, trash
facilities, and all other areas and facilities in the Building that are
provided and designated from time to time by Landlord for the general
nonexclusive use and convenience of Tenant with Landlord and other
Tenants the Building and their respective employees, invitees,
licensees, or other visitors. Landlord grants Tenant, its employees,
invitees, licensees. other visitors a nonexclusive license for the term
to use the common areas in common with others entitled to use the common
areas, subject the terms and conditions of this Lease. Without advance
written notice to Tenant, except with respect to matters covered by
subsection (a) below, and without any liability to Tenant in any
respect, provided Landlord will take no action permitted under this
Article 11 in such a m~ as to materially impair or adversely affect
Tenant's substantial benefit and enjoyment of the Premises, Landlord
will have the right to:
(a) Close off any of the common areas to whatever extent required in
the opinion of Landlord and its counsel to prevent a dedication
of any of the common areas or the accrual of any rights by any
person or the public to the common areas;
(b) Temporarily close any of the common areas for maintenance,
alteration, or improvement purposes; and
(c) Change the size, use, shape, or nature of any such common areas,
including erecting additional buildings on the common areas,
expanding the existing Building or other buildings to cover a
portion of the common areas, converting common a to a portion of
the Building or other buildings, or converting any portion of
the Building (excluding the Premises) or other buildings to
common areas. Upon erection of any additional buildings or
change in common areas, the portion of the land upon which
buildings or structures have been erected will no longer be
deemed to be a part of the common areas. In the event of any
such changes in the size or use of the Building or common areas
of the Building, Landlord will make an appropriate adjustment in
the rentable area of the Building or the Building's pro rata
share of exterior common areas of Building, as appropriate, and
a corresponding adjustment to Tenant's share of the operating
expenses payable pursuant 1 Article 5 of this Lease.
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12. LANDLORD'S SERVICES
12.1 Landlord's Repair and Maintenance. Landlord will maintain,
repair and restore the common areas of the Building, including
lobbies, stairs, elevators, corridors, and restrooms, the
windows in the Building, the mechanical, plumbing and electrical
equipment serving the Building, and the structure of the
Building in reasonably good order and condition.
12.2 Landlord's Other Services
(a) Landlord will furnish the Premises with those services
customarily provided in comparable office buildings in
the vicinity the Building, including without limitation
(1) electricity for lighting and the operation of low
wattage office machines (such as desktop microcomputers,
desktop calculators, and typewriters) during business
hours (as that term is defined below), although Landlord
will not be obligated to furnish more power to the
Premises than is proportionally allocated to the
Premises under the Building design; (2) heat/air
conditioning reasonably required for the comfortable
occupation of the Premises during business hours; (3)
access and elevator service; (4) lighting replacement
during business hours (for building standard lights, but
not for any special Tenant lights, which will be
replaced at Tenants sole cost and expense); (5) restroom
supplies; (6) window washing with reasonable frequency,
as determined by Landlord; and (7) daily cleaning
service on weekdays. Landlord may provide, but will not
be obligated to provide, any such services (except
access and elevator service) on holidays or weekends.
(b) Tenant will have the right to purchase for use during
business hours and nonbusiness hours the services
described in clauses (a)(l) and (2) in excess of the
amounts Landlord has agreed to furnish so long as (1)
Tenant gives Landlord reasonable ~ written notice of its
desire to do so; (2) the excess services are reasonably
available to Landlord and to the Premises; and (3)
Tenant pays as additional rent (at the time the next
payment of monthly rent is due) the cost of such excess
service ft time to time charged by Landlord; subject to
the procedures established by Landlord from time to time
for providing such additional or excess services.
12.3 Tenant's Costs. If Landlord reasonably believes that Tenant is
using more power than Landlord furnishes pursuant to Section 12
Landlord may install separate meters of Tenant's power usage,
and Tenant will pay for the cost
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of such excess power as additional together with the cost of
installing any risers, meters, or other facilities that may be
necessary to furnish or measure such excess p to the Premises.
12.4 Limitation on Liability. Landlord will not be in default under
this Lease or be liable to Tenant or any other person for direct
or consequential damage, or otherwise, for any failure to supply
any heat, air conditioning, elevator, cleaning, lighting,
security; for surges or interruptions of electricity; or for
other services Landlord has agreed to supply during any period
when Landlord uses reasonable diligence to supply such services.
Landlord will use reasonable efforts to diligently remedy any
interruption in the furnishing of such services. Landlord
reserves the right temporarily to discontinue such services at
such times as may be necessary reason of accident; repairs,
alterations OR improvements; strikes; lockouts; riots; acts of
God; governmental preemption in connection with a national or
local emergency; any rule, order, or regulation of any
governmental agency; conditions of supply and demand make any
product unavailable; Landlord's compliance with any mandatory
governmental energy conservation or environmental protection
program, or any voluntary governmental energy conservation
program at the request of or with consent or acquiescent Tenant;
or any other happening beyond the control of Landlord. Landlord
will not be liable to Tenant or any other person or tenant
direct or consequential damages resulting from the admission to
or exclusion from the Building of any person. In the event of
invasion, mob, riot, public excitement, strikes, lockouts, or
other circumstances rendering such action advisable in
Landlord's so] opinion, Landlord will have the right to prevent
access to the Building during the continuance of the same by
such means as Landlor in its sole discretion, may deem
appropriate, including without limitation locking doors and
closing parking areas and other com areas. Landlord will not be
liable for damages to person or property or for injury to, or
interruption of, business for any discontinuance permitted under
this Article 12, nor will such discontinuance in any way be
construed as an eviction of Tenant to an abatement of rent or
operate to release Tenant from any of Tenant's obligations under
this Lease.
13. TENANT'S CARE OF THE PREMISES. Tenant will maintain the Premises
(including, without limitation, Tenant's equipment, person property, and
trade fixtures located in the Premises, as well as all interior doors
and walls, plumbing and plumbing fixtures located in the Premises or for
a specific benefit of the Premises, as opposed to the Building as a
whole) in their condition at the time they delivered to Tenant,
reasonable wear and tear excluded. Tenant will immediately advise
Landlord of any damage to the Premises or the Building. All damage or
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injury to the Premises, the Building, or the fixtures, appurtenances,
and equipment in the Premises or the Building is caused by Tenant, its
agents, employees, or invitees may be repaired, restored, or replaced by
Landlord, at the expense of Tenant. Such expense (plus 15 percent of
such expense for Landlord's overhead) will be collectible as additional
rent and will be paid by Tenant within days after delivery of a
statement for such expense.
14. ALTERATIONS
14.1 General
(a) During the Term, Tenant will not make or allow to be
made any alterations, additions, or improvements to or
of the P or any part of the Premises, or attach any
fixtures or equipment to the Premises, without first
obtaining Landlord's written consent. All such
alterations, additions, and improvements consented to by
Landlord, and capital improvements that are required to
be made to the Building as a result of the nature of
Tenant's use of the Premises:
(1) Will be performed by contractors approved by
Landlord and subject to conditions specified by
Landlord (which may including requiring the
posting of a mechanic's or materialmen's xxxx
xxxx);
(2) At Landlord's option, will be made by Landlord
for Tenant's account, and Tenant will reimburse
Landlord for their cost (including 15 percent
for Landlord's overhead) within ten days after
receipt of a statement of such cost; and
(3) All such alterations, additions or improvements
shall be made in a good and workmanlike manner
and shall comply with a applicable laws, codes,
ordinances, rules and regulations.
(b) Subject to Tenant's rights in Article 16, all
alterations, additions, fixtures, and improvements,
whether temporary or permanent in character, made in or
upon the Premises either by Tenant or Landlord, will
immediately become Landlord's property and at the end of
the term will remain on the Premises without
compensation to Tenant. unless Landlord demand their
removal. Upon expiration or sooner termination of the
lease term, Tenant shall, at Tenant's cost and expense,
with al due diligence, remove any alterations, additions
or improvements made by Tenant and designated by
Landlord to be
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removed; provided, however, that Landlord gives Tenant
not less than 15 days advance written notice.
14.2 Freestanding Partitions. Tenant will have the right to install
freestanding work station partitions, without Landlord's prior
written consent, so long as no building or other governmental
permit is required for their installation or relocation;
however, if a permit is required, Landlord will not unreasonably
withhold its consent to such relocation or installation. The
freestanding work station partitions for which Tenant pays will
be part of Tenant's trade fixtures for all purposes under this
Lease. All other partitions installing in the Premises are and
will be Landlord's property for all purposes under this Lease.
14.3 Removal. If Landlord has required Tenant to remove any or all
alterations, additions, fixtures, and improvements that are made
in upon the Premises pursuant to this Article 14 prior to the
Expiration Date, Tenant will remove such alterations, additions,
fixtures, improvements at Tenant's sole cost and will restore
the Premises to the condition in which they were before such
alterations, additional fixtures, improvements, and additions
were made, reasonable wear and tear excepted.
15. MECHANICS' LIENS. Tenant will pay or cause to be paid all costs and
charges for work (a) done by Tenant or caused to be done by Tenant, in
or to the Premises, and (b) for all materials furnished for or in
connection with such work. Tenant will indemnify Landlord against and h
Landlord, the Premises, and the Building free, clear, and harmless of
and from all mechanics' liens and claims of liens, and all other
liabilities liens, claims, and demands on account of such work by or on
behalf of Tenant, other than work performed by Landlord pursuant to the
Workletter. If any such lien, at any time, is filed against the Premises
or any part of the Building or land, Tenant will cause such lien to be
discharged of record within ten days after the filing of such lien,
except that if Tenant desires to contest such lien, it will furnish
Landlord, within such ten day period, security reasonably satisfactory
to Landlord of at least 150% of the amount of the claim, plus estimated
costs an interest, or comply with such statutory procedures as may be
available to release the lien. If a final judgment establishing the
validity or existence of a lien for any amount is entered, Tenant will
pay and satisfy the same at once, If Tenant fails to pay any charge for
which a mechanics' lien has been filed, and has not given Landlord
security as described above, or has not complied with such statutory
procedures may be available to release the lien, Landlord may, at its
option, pay such charge and related costs and interest, and the amount
so paid, together with reasonable attorneys' fees incurred in connection
with such lien, will be immediately due from Tenant to Landlord as
additional rent. Nothing contained in this Lease will be deemed the
consent or agreement of Landlord to
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subject Landlord's interest in the Building or land I liability under
any mechanics' or other lien law. If Tenant receives written notice that
a lien has been or is about to be filed against the Premises, Building
or land, or that any action affecting title to the Building or land has
been commenced on account of work done by or for or material furnished
to or for Tenant, it will immediately give Landlord written notice of
such notice. At least I S days prior to the commencement of work
(including but not limited to any maintenance, repairs, alterations,
additions, improvements, or installations) in or to the Premises, by
Tenant, Tenant will give Landlord written notice of the proposed work
and the names and addresses of the persons supplying labor and mat for
the proposed work. Landlord will have the right to post notices of
nonresponsibility or similar written notices on the Premises in order
protect the Premises against any such liens.
16. END OF TERM. At the end of this Lease, Tenant will promptly quit and
surrender the Premises broom clean, in good order and repair, ordinary
wear and tear excepted. If Tenant is not then in default, Tenant may
remove from the Premises any trade fixtures. equipment, and movable
furniture placed in the Premises by Tenant, whether or not such trade
fixtures or equipment are fastened to the Building; Tenant not remove
any trade fixtures or equipment without Landlord's prior written consent
if such fixtures or equipment are used in the operation the Building, or
if the removal of such fixtures or equipment will result in impairing
the structural strength of the Building. Whether or not Tenant is in
default, Tenant will remove such alterations, additions, improvements,
trade fixtures, equipment, and furniture as Landlord have requested in
accordance with Article 14. Tenant will fully repair any damage
occasioned by the removal of any trade fixtures, equipment, furniture.
alterations, additions, and improvements. All trade fixtures, equipment,
furniture, inventory, effects, alterations, additions, and improvements
on the Premises after the end of the term will be deemed conclusively to
have been abandoned and may be appropriated, sold, stored, destroyed, or
otherwise disposed of by Landlord without written notice to Tenant or
any other person and without obligation to account for them. Tenant will
pay Landlord for all expenses incurred in connection with the removal of
such property, including but not limited to the cost of repairing any
damage to the Building or premises caused by the removal of such
property. Tenant's obligation to observe and perform this covenant will
survive the expiration or other termination of this Lease,
17. EMINENT DOMAIN. If all of the Premises are taken by exercise of the
power of eminent domain (or conveyed by Landlord in lieu of such
exercise) this Lease will terminate on a date (the "termination date")
which is the earlier of the date upon which the condemning authority
takes possession of the Premises or the date on which title to the
Premises is vested in the condemning authority. If more than 25 percent
of the rentable area of the Premises is so taken, Tenant will have the
right
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to cancel this Lease by written notice to Landlord given within 20 days
after the termination date. If less than 25 percent of the rentable area
of the Premises is so taken, or if the Tenant does not cancel this Lease
according to the preceding sentence, the monthly rent will be abated in
the proportion of the rentable area of the Premises so taken to the
rentable area of the Premises immediately before such taking, and
Tenant's share will be appropriately recalculated. If 25 percent or more
of the Building or to land is so taken, Landlord may cancel this Lease
by written notice to Tenant given within 30 days after the termination
date. In the event of ax such taking, the entire award will be paid to
Landlord and Tenant will have no right or claim to any part of such
award; however, Tenant will have the right to assert a claim against the
condemning authority in a separate action, so long as Landlord's award
is not otherwise reduced, for Tenant's moving expenses and leasehold
improvements owned by Tenant.
18. DAMAGE AND DESTRUCTION
(a) If the Premises or the Building are damaged by fire or other
insured casualty, Landlord will give Tenant written notice of
time which will be needed to repair such damage, as determined
by Landlord in its reasonable discretion, and the election any)
which Landlord has made according to this Article 18. Such
notice will be given before the 30th day (the "notice cia after
the fire or other insured casualty.
(b) If the Premises or the Building are damaged by fire or other
insured casualty to an extent which may be repaired within 1
days after the notice date, as reasonably determined by
Landlord, Landlord will promptly begin to repair the damage
after the notice date and will diligently pursue the completion
of such repair. In that event this Lease will continue in full
force and effect except that monthly rent will be abated on a
pro rata basis from the date of the damage until the date of the
completion of such repairs (the "repair period") based on the
proportion of the rentable area of the Premises Tenant is urn to
use during the repair period.
(c) If the Premises or the Building are damaged by fire or other
insured casualty to an extent that may not be repaired within
days after the notice date, as reasonably determined by
Landlord, then (1) Landlord may cancel this Lease as of the date
such damage by written notice given to Tenant on or before the
notice date or (2) Tenant may cancel this Lease as of the of
such damage by written notice given to Landlord within ten days
after Landlord's delivery of a written notice that the repairs
cannot be made within such 120 day period. If neither Landlord
nor Tenant so elects to cancel this Lease,
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Landlord will diligently proceed to repair the Building and
Premises and monthly rent will be abated on a pro rata basis
during the repair period based on the proportion of the rentable
area of the Premises Tenant is unable to use during the repair
period
(d) Notwithstanding the provisions of subparagraphs (a), (b), and
(c) above, if the Premises or the Building are damaged by
uninsured casualty, or if the proceeds of insurance are
insufficient to pay for the repair of any damage to the Premises
or Building, Landlord will have the option to repair such damage
or cancel this Lease as of the date of such casualty by written
notice to Tenant on or before the notice date.
(e) If any such damage by fire or other casualty is the result of
the willful conduct or negligence or failure to act of Tenant,
agents, contractors, employees, or invitees, there will be no
abatement of monthly rent as otherwise provided for in this
Article 18. Tenant will have no rights to terminate this Lease
on account of any damage to the Premises, the Building, land,
except as set forth in this Lease.
19. SUBORDINATION
19.1 General. This Lease and Tenant's rights under this Lease are
subject and subordinate to any ground or underlying lease,
mortgage indenture, deed of trust, or other lien encumbrance
(each a "superior lien"), together with any renewals,
extensions, modifications consolidations, and replacements of
such superior lien, now or after the date affecting or placed,
charged. or enforced against the or all or any portion of the
Building or any interest of Landlord in them or Landlord's
interest in this Lease and the leasehold estate created by this
Lease (except to the extent any such instrument expressly
provides that this Lease is superior to such instrument).
provision will be self-operative and no further instrument of
subordination will be required in order to effect it.
notwithstanding foregoing, Tenant will execute, acknowledge, and
deliver to Landlord, within five days after written demand by
Landlord, such documents as may be reasonably requested by
Landlord or the holder of any superior lien to confirm or effect
any such subordination.
19.2 Attornment and Nondisturbance. Tenant agrees that in the event
that any holder of a superior lien succeeds to Landlord's
interest the Premises, Tenant will pay to such holder all rents
subsequently payable under this Lease. Further, Tenant agrees
that in the eve of the enforcement by the holder of a superior
lien of the remedies provided for by law or by such
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superior lien, Tenant will, upon request of any person or party
succeeding to the interest of Landlord as a result of such
enforcement, automatically become the Tenant of and attorney to
such successor in interest without change in the terms or
provisions of this Lease. Such successor in interest will n be
bound by:
(a) Any payment of rent for more than one month in advance,
except prepayments in the nature of security for the
performance by Tenant of its obligations under this
Lease;
(b) Any amendment or modification of this Lease made without
the written consent of such successor in interest (if
such consent was required under the terms of such
superior lien);
(c) Any claim against Landlord arising prior to the date on
which such successor in interest succeeded to Landlord's
interest
(d) Any claim or offset of rent against the Landlord.
Upon request by such successor in interest and without cost to Landlord
or such successor in interest, Tenant will, within 20 days after written
demand, execute, acknowledge, and deliver an instrument or instruments
confirming the attornment, so long as such instrument provides the such
successor in interest will not disturb Tenant in its use of the Premises
in accordance with this Lease.
20. ENTRY BY LANDLORD. Landlord, its agents, employees, and contractors may
enter the Premises at any time in response to an emergency and at
reasonable hours to:
(a) Inspect the Premises;
(b) Show the Premises to prospective purchasers, lenders, or
Tenants;
(c) Determine whether Tenant is complying with all its
obligations in this Lease;
(d) Supply cleaning service and any other service to be
provided by Landlord to Tenant according to this Lease;
(e) Post written notices of nonresponsibility or similar
notices; or
(f) Make repairs required of Landlord under the terms of
this Lease or make repairs to any adjoining space or
utility service make repairs, alterations, or
improvements to any other portion of the Building;
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however, all such work will be done as promptly as
reasonably possible and so as to cause as little
interference to Tenant as reasonably possible.
Tenant, by this Article 20. waives any claim against Landlord, its
agents, employees, or contractors for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of
occupancy or quiet enjoyment of the Premises, or any other loss
occasioned by any en accordance with this Article 20. Landlord will ax
all times have and retain a key with which to unlock all of the doors
in, on, or about the Premises (excluding Tenant's vaults, safes, and
similar areas designated in writing by Tenant in advance). Landlord will
have the right to u any and all means Landlord may deem proper to open
doors in and to the Premises in an emergency in order to obtain entry to
the Premises provided that Landlord will promptly repair any damages
caused by any forced entry. Any entry to the Premises by Landlord in
accordance this Article 20 will not be construed or deemed to be a
forcible or unlawful entry into or a detainer of the Premises or an
eviction, actual or constructive, of Tenant from the Premises or any
portion of the Premises, nor will any such entry entitle Tenant to
damages or an abatement monthly rent, additional rent, or other charges
that this Lease requires Tenant to pay.
21. INDEMNIFICATION, WAIVER, AND RELEASE
21.1 Indemnification. Except for any injury or damage to persons or
property on the Premises that is proximately caused by or result
proximately from the negligence or deliberate act of Landlord,
its employees, or agents, and subject to the provisions of
Section ~ Tenant will neither hold nor attempt to hold Landlord,
its employees, or agents liable for, and Tenant will indemnify
and hold hax Landlord, its employees, and agents from and
against, any and all demands, claims, causes of action, fines,
penalties, damages (including consequential damages),
liabilities, judgments, and expenses (including without
limitation reasonable attorneys' fees) incurred in connection
with or arising from:
(a) The use or occupancy or manner of use or occupancy of
the Premises by Tenant or any person claiming under
Tenant:
(b) Any activity, work, or thing done or permitted by Tenant
in or about the Premises, the Building, or the land;
(c) Any breach by Tenant or its employees, agents,
contractors, or invitees of this Lease; and
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(d) Any injury or damage to the person, property, or
business of Tenant, its employees, agents, contractors,
or invitees entering upon the Premises under the express
o~ implied invitation of Tenant.
If any action or proceeding is brought against Landlord, its
employees, or agents by reason of any such claim for which
Tenant has indemnified Landlord, Tenant, upon written notice
from Landlord, will defend the same at Tenant's expense, with
counsel reasonably satisfactory to Landlord.
21.2 Waiver and Release. Tenant, as a material part of the
consideration to Landlord for this Lease, by this Section 21.2
waives and releases all claims against Landlord, its employees,
and agents with respect to all matters for which Landlord has
disclaimed liability pursuant to the provisions of this Lease.
22. SECURITY DEPOSIT. Tenant has deposited the security deposit with
Landlord as security for the full, faithful, and timely 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
limit to the provisions relating to the payment of rent, Landlord may
use, apply, or retain all or any part of the security deposit for the
payment of a rent, or any other sum in default, or for the payment of
any other amount Landlord may spend or become obligated to spend by
reason of Tenant's default, or to compensate Landlord for any other loss
or damage Landlord may suffer by reason of Tenant's default. If any
portion of the security deposit is so used, applied, or retained, Tenant
will within five days after written demand deposit cash with Landlord in
an amount sufficient to restore the security deposit to its original
amount. Landlord will not be required to keep the security deposit
separate from its general funds, and Tenant will not be entitled to
interest on the security deposit. The security deposit will not be
deemed a limitation on Landlord's damages or a payment of liquidated
damages or a payment of the monthly rent due for the last month of the
term. If Tenant fully, faithfully, and timely performs every provision
of this Lease to be performed by it, the security deposit or any balance
of the security deposit will be returned to Tenant within 60 days after
the expiration of the Term. Landlord may deliver the funds deposited
under this Lease by Ten to the purchaser of the Building in the event
the Building is sold, and after such time Landlord will have no further
liability to Tenant with respect to the security deposit.
23. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that so long
as Tenant pays the rent and observes and performs all the terms,
covenants, and conditions of this Lease on Tenant's part to be observed
and performed, Tenant may peaceably and quietly enjoy the Premises
subject, nevertheless, to the terms
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and conditions of this Lease, and Tenant's possession will not be
disturbed by anyone claiming by, through, or under Landlord.
24. EFFECT OF SALE. A sale, conveyance, or assignment of the Building will
operate to release Landlord from liability from and after the effective
date of such sale, conveyance, or assignment upon all of the covenants,
terms, and conditions of this Lease, express or implied, excise those
liabilities that arose prior to such effective date, and, after the
effective date of such sale, conveyance, or assignment, Tenant will look
solely to Landlord's successor in interest in and to this Lease. This
Lease will not be affected by any such sale, conveyance, or assignment,
Tenant will attorn to Landlord's successor in interest to this Lease, so
long as such successor in interest assumes Landlord's obligations under
this Lease from and after such effective date.
25. DEFAULT
25.1 Events of Default. The following events are referred to,
collectively, as "events of default" or, individually, as an
"event of default":
(a) Tenant defaults in the due and punctual payment of rent,
and such default continues for three days after written
notice from Landlord; however, Tenant will not be
entitled to more than one written notice for monetary
defaults during any 12-mot period, and if after such
written notice any rent is not paid when due, an event
of default will be considered to have occupy without
further notice;
(b) Tenant vacates or abandons the Premises or fails to
operate its business on the Premises:
(c) ThisLease or the Premises or any part of the Premises
are taken upon execution or by other process of law
directed against Tenant, or are taken upon or subject to
any attachment by any creditor of Tenant or claimant
against Tenant, and said attachment is not discharged or
disposed of within 15 days after its levy;
(d) Tenant files a petition in bankruptcy or insolvency or
for reorganization or arrangement under the bankruptcy
laws of the United States or under any insolvency act of
any state, or admits the material allegations of any
such petition by answer or otherwise, or is dissolved or
makes an assignment for the benefit of creditors;
(e) Involuntary proceedings under any such bankruptcy law or
insolvency act or for the dissolution of Tenant are
instituted against Tenant, or a receiver or trustee is
appointed for all or substantially all of the
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property of Tenant, and such proceeding is not dismissed
or such receivership or trusteeship vacated within 60
days after such institution or appointment;
(f) Tenant makes, causes to be made or suffers to exist on
the Premises noise of any type (including music) that,
in the opinion of Landlord, could reasonably be expected
to interfere with the rights of quiet enjoyment of other
tenants in the Building, and such default continues or
occurs for ten days after written notice from Landlord;
however, Tenant will not be entitled more than one
written notice of such defaults during any 12 month
period, and if after such written notice a default under
this provision exists or occurs, an Event of Default
will be considered to have occurred without further
notice;
(g) Tenant breaches any of the other agreements, terms,
covenants, or conditions that this Lease requires Tenant
to perform, on such breach continues for a period of 30
days after written notice from Landlord to Tenant or, if
such breach cannot be cut reasonably within such 30 day
period, if Tenant fails to diligently commence to cure
such breach within 30 days after writ notice from
Landlord and to complete such cure within a reasonable
time thereafter (not to exceed 90 days).
25.2 Landlord's Remedies. If any one or more events of default set
forth in Section 25.1 occurs then Landlord has the right, at its
elect.
(a) To give Tenant written notice of Landlord's intention to
terminate this Lease on the earliest date permitted by
law or on at later date specified in such notice, in
which case Tenants right to possession of the Premises
will cease and this Lease will terminated, except as to
Tenant's liability, as if the expiration of the term
fixed in such notice were the end of the term;
(b) Without further demand or notice, to reenter and take
possession of the Premises or any part of the Premises,
repossess the same, expel Tenant and those claiming
through or under Tenant, and remove the effects of both
or either, using such force for such purposes as may be
necessary. without being liable for prosecution, without
being deemed guilty of any manner trespass. and without
prejudice to any remedies for arrears of monthly rent or
other amounts payable under this Lease or result of any
preceding breach of covenants or conditions; or
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(c) Without further demand or notice to cure any event of
default and to charge Tenant for the cost of effecting
such cure, including without limitation reasonable
attorneys' fees and interest on the amount so advanced
at the rate of 15 percent p annum, provided that
Landlord will have no obligation to cure any such event
of default of Tenant.
Should Landlord elect to reenter as provided in subsection (b),
or should Landlord take possession pursuant to legal proceedings
c pursuant to any notice provided by law, Landlord may, from
time to time, without terminating this Lease, relet the Premises
or and part of the Premises in Landlord's or Tenant's name, but
for the account of Tenant, for such term or terms (which may be
greater o than the period which would otherwise have constituted
the balance of the term) and on such conditions and upon such
other term (which may include concessions of free rent and
alteration and repair of the Premises) as Landlord, in its
reasonable discretion, may determine, and Landlord may collect
and receive the rent. Landlord will in no way be responsible or
liable for any failure to relet Premises, or any part of the
Premises, or for any failure to collect any rent due upon such
reletting. No such reentry or taking possession of the Premises
by Landlord will be construed as an election on Landlord's part
to terminate this Lease unless a written notice of such
intention is given to Tenant. No written notice from Landlord
under this Section or under a forcible or unlawful or and
detainer statute or similar law will constitute an election by
Landlord to terminate this Lease unless such notice specifically
54 states. Landlord reserves the right following any such
reentry or reletting to exercise its right to terminate this
Lease by giving Tenant such written notice, in which event this
Lease will terminate as specified in such notice.
25.3 Certain Damages. In the event that Landlord does not elect to
terminate this Lease as permitted in Section 25.2(a), but on the
contrary elects to take possession as provided in Section
25.2(b), Tenant will pay to Landlord monthly rent and other sums
as promise in this Lease that would be payable under this Lease
if such repossession had not occurred, less the net proceeds, if
any, of any reletting of the Premises after deducting all of
Landlord's reasonable expenses in connection with such
reletting, including without limitation all repossession costs,
brokerage commissions, attorneys' fees, expenses of employees,
alteration and repair costs, and expenses of preparation for
such reletting. If, in connection with any reletting, the new
lease term extends beyond the existing to the Premises covered
by such new lease include other premises not part of the
Premises, a fair apportionment of the rent received such
reletting and the expenses incurred in connection with such
reletting as provided in this Section will
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be made in determining net proceeds from such reletting, and any
rent concessions will be equally apportioned over the term of
the new lease. Tenant w such rent and other sums to Landlord
monthly on the day on which the monthly rent would have been
payable under this Lease possession had not been retaken, and
Landlord will be entitled to receive such rent and other sums
from Tenant on each such day.
25.4 Continuing Liability After Termination. If this Lease is
terminated on account of the occurrence of an event of default.
Tenant will remain liable to Landlord for damages in an amount
equal to monthly rent and other amounts that would have been
owing by Tenant for the balance of the term, had this Lease not
been terminated, less the net proceeds, if any, of any reletting
of the Premises by Landlord subsequent to such termination,
after deducting all of Landlord's expenses in connection with
such reletting, including without limitation the expenses
enumerated in Section 25.3. Landlord will be entitled to collect
such damages from Tenant monthly on the day on which monthly
rent and other amounts would have been payable under this Lease
if this Lease had not been terminated and Landlord will be
entitled to receive such monthly rent and other amounts from
Tenant on each such day. Alternatively, at the option of
Landlord, in the event this Lease is so terminated, Landlord
will be entitled to recover against Tenant as damages for loss
01 the bargain and not as a penalty:
(a) The worth at the time of award of the unpaid rent that
had been earned at the time of termination;
(b) The worth at the time of award of the amount by which
the unpaid rent that would have been earned after
termination until the time of award exceeds the amount
of such rental loss that Tenant proves could have been
reasonably avoided;
(c) The worth at the time of award of the amount by which
the unpaid rent for the balance of the term of this
Lease (had the same not been so terminated by Landlord)
after the time of award exceeds the amount of such
rental loss that Tenant prove could be reasonably
avoided;
(d) Any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure
to perform its obligations under this Lease or which
would be likely to result therefrom.
The "worth at the time of award" of the amounts referred to in
clauses (a) and (b) above is computed by adding interest at the
rate of 15 percent per
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annum on the date on which this Lease is terminated from the
date of termination until the time of the award. The "worth at
the time of award" of the amount referred to in clause (c) above
is computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco, at the time of award
plus 1 percent.
25.5 Cumulative Remedies. Any suit or suits for the recovery of the
amounts and damages set forth in Sections 25.3 and 25.4 may be
brought by Landlord, from time to time, at Landlord's election,
and nothing in this Lease will be deemed to require Landlord to
aware the date upon which this Lease or the term would have
expired had there occurred no event of default. Each right and
remedy provided for in this Lease is cumulative and is in
addition to every other right or remedy provided for in this
Lease or now or after lease date existing at law or in equity or
by statute or otherwise, and the exercise or beginning of the
exercise by Landlord of any or more of the rights or remedies
provided for in this Lease or at law, in equity or by statute or
otherwise will not preclude the simultaneous or later exercise
by Landlord of any or all other rights or remedies provided for
in this Lease, at law or in equity or by statute or otherwise.
All costs incurred by Landlord in collecting any amounts and
damages owing by Tenant pursuant to the provisions of this Lease
or to enforce any provision of this Lease, including reasonable
attorneys' fees from the date any such matte turned over to an
attorney, whether or not one or more actions are commenced by
Landlord, will also be recoverable by Landlord from Tenant.
25.6 Waiver of Redemption. Tenant waives any right of redemption
arising as a result of Landlord's exercise of its remedies under
this Article 25.
25.7 Late Charges. Tenant acknowledges that late payment by Tenant to
Landlord of rent and other sums due under this Lease will cat
Landlord to incur costs not contemplated by this Lease, the
exact amount of which will be extremely difficult to ascertain.
These c include, but are not limited to, processing and
accounting charges, and late charges which may be imposed on
Landlord by the tern any mortgage or deed of trust covering the
Premises. Accordingly, if any installment of rent or other sums
due from Tenant shall n be received by Landlord or Landlord's
agent within five days after the amount shall be due or if
payment is made with a check that returned for lack of
sufficient funds, then without any requirement of notice to
Tenant, Tenant shall pay to Landlord a late charge equal to the
greater of 10 percent of the delinquent amount or $75, plus 1
percent per month interest on the delinquencies from the due
until payment. The parties agree that this late charge plus
interest represents fair and reasonable estimate of
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the cost Landlord incur by reason of late payment by Tenant.
Acceptance of the late charge by Landlord shall in no event
constitute a waiver of Tens default with respect to the overdue
amount, nor prevent Landlord from exercising any of the other
rights or remedies granted to Landlord under this Lease, or at
law or equity.
25.8 Default by Landlord. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord
within a reasonable time, but in any event 30 days after written
notice by certified mail 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 Said notice shall specify wherein Landlord has
failed to perform such obligation; provided, however, that if
the nature of Landlord obligation is such that more than 30 days
are required for performance, then Landlord shall not be in
default if Landlord commence performance within such 30-day
period and thereafter diligently prosecutes the same to
completion. Tenant further agrees not to invoke any of its
remedies under this Lease until said 30 days have elapsed. In no
event shall Tenant have the right to terminate this Lease as a
result of Landlord's default and Tenant's remedies shall be
limited to damages and/or an injunction; and in no case may the
Tenant withhold rent or claim a set-off or deduction from rent.
26. PARKING. Tenant will be entitled to use the parking spaces during the
Term subject to the rules and regulations set forth in Exhibit D. and
amendments or additions to them. The parking charges set forth in
Section 1.1, if any, will be due and payable in advance at the same time
and place as monthly rent. The parking spaces will be unassigned,
nonreserved, and nondesignated. Landlord reserves the right to adjust
the parking charges in Landlord's sole discretion at any time after 30
days' prior written notice. Twenty-four hour parking on the real
property up which the Premises are located shall not be permitted by
Tenant, its employees, agents or invitees.
27. MISCELLANEOUS
27.1 No Offer. This Lease is submitted to Tenant on the understanding
that it will not be considered an offer and will not bind
Landlor any way until Tenant has duly executed and delivered
duplicate originals to Landlord and Landlord has executed and
delivered onto such originals to Tenant.
27.2 Joint and Several Liability. If Tenant is composed of more than
one signatory to this Lease, each signatory will be jointly and
severally liable with each other signatory for payment and
performance according to this
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Lease. The act of, written notice to, written notice from,
refund to. or signature of any signatory to this Lease
(including without limitation modifications of this Lease made b
fewer than all such signatories) will bind every other signatory
as though every other signatory had so acted, or received or
given written notice or refund, or signed.
27.3 No Construction Against Drafting Party. Landlord and Tenant
acknowledge that each of them and their counsel have had an
opportunity to review this Lease and that this Lease will not be
construed against Landlord merely because Landlord has prepared
27.4 Time of the Essence. Time is of the essence of each and every
provision of this Lease.
27.5 No Recordation. A short form memorandum of this Lease may be
recorded at the request of either party, and at the requesting p
expense.
27.6 No Waiver. The waiver by Landlord of any agreement, condition,
or provision contained in this Lease will not be deemed to be
waiver of any subsequent breach of the same or any other
agreement, condition, or provision contained in this Lease, nor
will and custom or practice that may grow up between the parties
in the administration of the terms of this Lease be construed to
waive or lessen the right of Landlord to insist upon the
performance by Tenant in strict accordance with the terms of
this Lease. The subs acceptance of rent by Landlord will not be
deemed to be a waiver of any preceding breach by Tenant of any
agreement, condition provision of this Lease, other than the
failure of Tenant to pay the particular rent so accepted,
regardless of Landlord's knowledge such preceding breach at the
time of acceptance of such rent.
27.7 Limitation on Recourse. Tenant specifically agrees to look
solely to Landlord's interest in the Building and land for the
recover any judgments from Landlord. It is agreed that Landlord
(and its shareholders, venturers, members and partners, and
their shareholders, venturers, members and partners and all of
their officers, directors, and employees) will not be personally
liable for such judgments. The provisions contained in the
preceding sentences are not intended to and will not limit any
right that Tenant otherwise have to obtain injunctive relief
against Landlord or relief in any suit or action in connection
with enforcement or collect of amounts that may become owing or
payable under or on account of insurance maintained by Landlord.
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27.8 Estoppel Certificates. At any time and from time to time but
within five days after prior written request by Landlord, Tenant
V execute, acknowledge, and deliver to Landlord, promptly upon
request. a certificate certifying (a) that this Lease is
unmodified full force and effect or, if there have been
modifications, that this Lease is in full force and effect, as
modified, and stating the d~ nature of each modification; (b)
the date, if any, to which rent and other sums payable under
this Lease have been paid; (c) that written notice of any
default has been delivered to Landlord which default has not
been cured, except as to defaults specified in certificate; (d)
that there is no event of default under this Lease or an event
which, with notice or the passage of time, or both, w result in
an event of default under this Lease, except for defaults
specified in said certificate; and (e) such other matters as may
1 reasonably requested by Landlord. Any such certificate may be
relied upon by any prospective purchaser or existing or prospect
mortgagee or beneficiary under any deed of trust of the Building
or any part of the Building. Tenant's failure to deliver such a
certificate within such time will be conclusive evidence of the
matters set forth in it.
27.9 Waiver of Jury Trial. LANDLORD, TENANT AND GUARANTOR BY THIS
SECTION 27.9 WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING. OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES TO THE LEASE
AGAINST OTHER ON ANY Mailers WHATSOEVER ARlSING OUT OF OR IN ANY
WAY CONNECTED WITH THIS LEASE. THIS RELATIONSHIP OF LANDLORD AND
TENANT, TENANTS USE OR OCCUPANCY OF THE PREMISES, OR ANY OTHER
CLAIMS (EXCEPT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE),
AND ANY EMERGENCY STATUTORY' OR ANY OTHER STATUTORY REMEDY.
27.10 No Merger. The voluntary or other surrender of this Lease by
Tenant or the cancellation of this Lease by mutual agreement of
Tenant and Landlord or the termination of this Lease on account
of Tenant's default will not work a merger, and will, at
Landlord's option, (a) terminate all or any subleases and
subtenancies or (b) operate as an assignment to Landlord of all
or any subleases or subtenancies Landlord's option under this
Section 27.10 will be exercised by written notice to Tenant and
all known sublessees or subtenants in Premises or any part of
the Premises.
27.11 Holding Over. Tenant will have no right to remain in possession
of all or any part of the Premises after the expiration of the
term. Tenant remains in possession of all or any part of the
Premises after the expiration of the term, with the express or
implied consent Landlord: (a) such tenancy will be deemed to be
a periodic tenancy from month-to-month only; (b) such
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tenancy will not constitute renewal or extension of this Lease
for any further term; and (c) such tenancy may be terminated by
Landlord upon the earlier of 30 days' prior written notice or
the earliest date permitted by law. In such event, monthly rent
will be increased to an amount equal to 150% of the monthly rent
payable during the last month of the term, and any other sums
due under this Lease will be payable in the amount and at the
times specified in this Lease. Such month-to-month tenancy will
be subject to every other term, condition, and covenant
contained in this Lease.
27.12 Notices. Any notice, request, demand, consent, approval, or
other communication required or permitted under this Lease must
be writing and will be deemed to have been given when personally
delivered, sent by facsimile with receipt acknowledged,
deposited with any nationally recognized overnight carrier that
routinely issues receipts, or deposited in any depository
regularly maintained the United States Postal Service, postage
prepaid, certified mail, return receipt requested, addressed to
the party for whom it is intended at its address set forth in
Section 1. 1. Either Landlord or Tenant may add additional
addresses or change its address for purposes of receipt of any
such communication by giving ten days' prior written notice of
such change to the other party in the ma prescribed in this
Section 27. 12.
27.13 Severability. If any provision of this Lease proves to be
illegal, invalid, or unenforceable, the remainder of this Lease
will not be affected by such finding, and in lieu of each
provision of this Lease that is illegal, invalid, or
unenforceable a provision will be ad as a part of this Lease as
similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid enforceable.
27.14 Written Amendment Required. No amendment, alteration,
modification of, or addition to this Lease will be valid or
binding and expressed in writing and signed by Landlord and
Tenant. Tenant agrees to make any modifications of the terms and
provisions of Lease required or requested by any lending
institution providing financing for the Building, or project, as
the case may be, provide that no such modifications will
materially adversely affect Tenant's rights and obligations
under this Lease.
27.15 Entire Agreement. This Lease, the exhibits and addenda, if any,
contain the entire agreement between Landlord and Tenant. No
promises or representations, except as contained in this Lease,
have been made to Tenant respecting the condition or the manner
of operating the Premises, the Building, or the project.
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27.16 Captions. The captions of the various articles and sections of
this Lease are for convenience only and do not necessarily
define, 1 describe, or construe the contents of such articles or
sections.
27.17 Authority. Tenant and the party executing this Lease on behalf
of Tenant represent to Landlord that such party is authorized to
d by requisite action of the board of directors, partners or
members, as the case may be, and agree upon request to deliver
to Landlord resolution or similar document to that effect.
27.18 Brokers. Landlord and Tenant respectively represent and warrant
to each other that neither of them has consulted or negotiated v
any broker or finder with regard to the Premises except the
broker named in Section 1.1, if any. Each of them will indemnify
the against and hold the other harmless from any claims for fees
or commissions from anyone with whom either of them has
consulted negotiated with regard to the Premises except the
broker. Landlord will pay any fees or commissions due the
broker.
27.19 Governing Law. This Lease will be governed by and construed
pursuant to the laws of the State of Washington.
27.20 No Easements for Air or Light. Any diminution or shutting off of
light, air, or view by any structure that may be erected on Ian
adjacent to the building will in no way affect this Lease or
impose any liability on Landlord.
27.21 Tax Credits. Landlord is entitled to claim all tax credits and
depreciation attributable to leasehold improvements in the
Premises. Promptly after Landlord's demand, Landlord and Tenant
will prepare a detailed list of the leasehold improvements and
fixtures and their respective costs for which Landlord or Tenant
has paid. Landlord will be entitled to all credits and
depreciation for those items for which Landlord has paid by
means of any Tenant finish allowance or otherwise. Tenant will
be entitled to any tax credits and depreciation for all items
for which Tenant has paid with funds not provided by Landlord.
27.22 Relocation of the Premises. Landlord reserves the right to
relocate the Premises to substantially comparable space within
the Building, pursuant to this Section 27.22. Landlord will give
Tenant a written notice of its intention to relocate the
Premises, and Tenant will complete such relocation within 60
days after receipt of such written notice. If the space to which
Landlord proposes to relocate Tenant is not substantially
comparable to the Premises, Tenant may so notify Landlord, and
if Landlord fails to offer space satisfactory to Tenant, Tenant
may terminate this Lease effective as
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of the 30th day after the date of Landlord's initial written
notice. Tenant does relocate within the Building, then effective
on the date of such relocation this Lease will be amended by
deleting the description of the original Premises and
substituting for it a description of such comparable space.
Landlord agrees to reimburse Tenant for its actual reasonable
moving costs to such other space within the Building, the
reasonable costs of reprinting stationery, 2 the costs of
rewiring the new premises for telephone and computers comparably
to the original Premises.
27.23 Landlord's Fees. Whenever Tenant requests Landlord to take any
action or give any consent required or permitted under this Less
Tenant will reimburse Landlord for all of Landlord's reasonable
costs incurred in reviewing the proposed action or consent,
including without limitation reasonable attorneys', engineers'
or architects' fees, within ten days after Landlord's delivery
to Tenant of a statement of such costs. Tenant will be obligated
to make such reimbursement without regard to whether Landlord
consents to any such proposed action.
27.24 Binding Effect. The covenants, conditions, and agreements
contained in this Lease will bind and inure to the benefit of
Landlord Tenant and their respective heirs, distributees,
executors, administrators, successors, and, except as otherwise
provided in this Leas their assigns.
27.25 Guarantor. In the event that there is a Guarantor of this Lease,
Guarantor hereby agrees to jointly and severally perform all
payment and other obligations of Tenant under this Lease.
Guarantor waives all suretyship defenses that would otherwise be
available to Guarantor.
27.26 Disclosure of Agency Representation. At the signing of this
Lease Agreement, Xxxxxx Xxxx Management Group, Inc. represented
Landlord. Each party signing this document confirms that prior
oral and/or written disclosure of agency was provided to them in
transaction.
27.27 Confidentiality. Tenant agrees not to disclose the terms and
conditions of this Lease to a third party without the written
consent Landlord.
27.28 Rules of Construction. The parties agree that (a) in the event
of any inconsistency between the provisions of Section 1 and the
o provisions of this Lease, the other provisions of this Lease
shall govern; (b) in the event of any inconsistency between the
provisit of the body of this Lease and the Riders and
workletters attached hereto, the provisions set forth in the
Riders and workletters shall govern; (c) in the event of any
ambiguity regarding which party is responsible for costs or
expenses, Tenant shall be
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responsible; (d) ambiguities shall not be construed against the
party that drafted this Lease.
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IN WITNESS WHEREOF, the parties have executed this instrument as of the
day and year first above written.
LANDLORD: XXXXXX XXXX REAL ESTATE
SERVICES, INC.
By: /s/
---------------------------------
Title: President
------------------------------
TENANT: VIRAGE LOGIC CORPORATION
By: /s/
---------------------------------
Title: President & CEO
------------------------------
THE OBLIGATIONS OF TENANT ARE
GUARANTEED BY:
By:
---------------------------------
Title:
------------------------------
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EXHIBIT B
LEGAL DESCRIPTION
DESCRIPTION:
THAT PORTION OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF
SECTION 10, TOWNSHIP 24 NORTH, RANGE 5 EAST WM., IN KING COUNTY, WASHINGTON,
LYING SOUTHERLY OF SR-90, WESTERLY OF THE 136TH UNDERCROSSING AND NORTHERLY OF A
LINE 30 FEET NORTHERLY OF AND PARALLEL TO THE FR-6 LINE.
ALL AS SHOWN SHEETS 4, 5, AND 6 OF 25 SHEETS, SR-90 M.P. 7.71 TO M.P.
11.73 (XXXXXXXX ROAD TO LAKE SAMMAMISH).
SITUATE IN THE COUNTY OF KING, STATE OF WASHINGTON.
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EXHIBIT C
WORKLETTER
This workletter is attached to and forms a part of that certain office lease
dated ___________________ ("Lease"), pursuant to which Landlord has lease to
Tenant office space in the Building to be known as:
PROJECT: Virage Logic Corporation ADDRESS: 00000 XX 00xx Xxxxxx. Xxxxx 000
------------------------ -------------------------------
The Landlord agrees to provide the Leased premises in the following condition:
____ STANDARD IMPROVEMENTS (As Is)
X STANDARD IMPROVEMENTS (As Is) PLUS THOSE SHOWN BELOW
LANDLORD AT LANDLORD'S sole cost and expense shall:
1) Install new carpet throughout the space according to building standards.
2) Remove walls indicated on attached floor plan.
3) Build an 8 x 12 room with a sink and lower cabinets. The exact location
is further described on the attached floor plan on Exhibit A.
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EXHIBIT D
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 the Building without the written consent of Landlord
first had and obtained and Landlord shall have the right to remove any
such sign, placard, picture advertisement, name or notice without 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 cause 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 purposes 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.
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 ant
foreign substance of any kind whatsoever shall be thrown therein and the
expense of any breakage, stoppage or damage resulting from the violation
of 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
Building without the prior notice to Landlord and all moving of the same
or out of the Building shall be done at such time and in such manner as
Landlord shall designate. Landlord shall have the right to prescribe the
we size and position of all safes and other heavy equipment brought into
the Building and also the times and manner of moving the same in and out
o Building. Safes or other heavy objects shall, if considered necessary
by Landlord, stand on supports of such thickness as is necessary to pro
distribute the weight. Landlord will not be responsible for loss
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of or damage to any such safe or property from any cause and all damage
done building by moving or maintaining any such safe or other property
shall be repaired at the expense of Tenant.
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 occupied or used in a manner offensive to objectionable to the
Landlord or other occupants of the Building by reason of noise, odors
and/or vibration interfere in any way with other tenants or those having
business therein, nor shall any animals or birds he brought in or kept
in or about the Premises Building.
8. No cooking shall be done or permitted on the Premises, nor shall the
Premises be used for the storage of merchandise, for washing clothes,
for lodging or for any improper, objectionable or immoral purposes.
9. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material, or
use any method of heating or air conditioning other than that supplied
by Landlord.
10. Landlord will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires
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 8:00 A.M. the following day, access to the
Building or to the halls, corridors, elevators or stairways in the
Building, or to the Premises may be refused unless the person seeking
access is known to the or employee of the Building in charge and has a
pass or is properly identified. The Landlord shall in no case be liable
for damages for any error 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 of
the doors or otherwise, for the safety tenants and protection of
property in the Building and the Building.
12. Landlord reserves the right to exclude or expel from the Building 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
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.
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 hearing and air
conditioning, 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. All entrance doors in the Premises shall be left locked when the
Premises are not in use, and all doors opening to public corridors shall
be kept do except for normal ingress and egress from the Premises.
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EXHIBIT E
COMMENCEMENT DATE CERTIFICATE
This Commencement Date certificate is entered into by Landlord and Tenant
pursuant to Section 3.1 of the Lease.
1. DEFINITIONS. In this certificate the following terms have the meanings
given to them:
(a) Landlord:
(b) Tenant:
(c) Lease: Office Lease dated ___________________ between Landlord
and Tenant.
(d) Premises: Suite __________
(e) Building Address:
2. CONFIRMATION OF LEASE COMMENCEMENT: Landlord and Tenant confirm that the
commencement date of the lease is _____________________________ and the
Expiration Date is ___________________________________ and that Sections
1.1(k) and (1) are accordingly amended.
Landlord and Tenant have executed this Commencement Date certificate as of the
dates set forth below.
TENANT:
By:_________________________________
Title:______________________________
LANDLORD:
By:_________________________________
Title:______________________________
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To be made a part of the Office Lease document under date of ______________
between _______________________, as Landlord, and _________________, as Tenant.
Initials _________
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RIDER #28 PARKING:
Pursuant to Article 26 of the Lease, Tenant shall be entitled to the exclusive,
reserved (AND marked with the Tenant name) use of I covered parking stall.
Landlord shall provide a total of eight (8) uncovered parking stalls which shall
be unreserved and first come, first served. Landlord reserves the right to
assign the unreserved parking stalls a will strictly enforce the Tenant's limit
to 8 uncovered parking stalls. Landlord has approved the floor plan showing 17
work stations but does not in any way alter, approve or effect the total number
of parking stalls allowed Tenant's use. Landlord reserves the right to remove
any of Tenant's cars that are parked in other Tenant's parking spaces and if
after the 3rd notice by Landlord to Tenant of improper parking, Landlord may at
Landlord's s discretion cancel Tenant's lease by providing a minimum of 90 days
written notice and all the un-amontized Ten. improvement dollars and lease
commissions shall be due and payable upon notice.
RIDER #29 TENANT'S RIGHT OF EARLY TERMINATION:
Nowithstanding anything contained herein to the contrary, Tenant in its sole
discretion, shall have the right terminate the Lease on the last day of the
thirty-sixth (36) month after the commencement date. In order to exen this early
termination right, Tenant must give Landlord written notice at least one hundred
eighty (180) days before the early Termination Date. Upon the date notice is
provided, Tenant shall pay Landlord seventeen thousand se hundred thirty dollars
($17,730) and Tenant shall be fully released and discharged from any and all
obligation except any obligation accrued before the Early Termination Date.
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