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EXHIBIT 10.1
PROJECT LEASE AGREEMENT
BETWEEN
3055 TRIAD DR. CORP.
AS LANDLORD
AND
TRIAD SYSTEMS CORPORATION
AS TENANT
DATED AS OF AUGUST 1, 1988
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PROJECT LEASE AGREEMENT
STATE OF CALIFORNIA)
)
COUNTY OF ALAMEDA )
THIS PROJECT LEASE AGREEMENT is made and entered into as of
the 1st day of August, 1988, by and between 0000 XXXXX XX. CORP., a California
corporation with its principal office in Livermore, Alameda County, California
(hereinafter called "Landlord"), and TRIAD SYSTEMS CORPORATION, a Delaware
corporation authorized to do business in California (hereinafter called
"Tenant").
W I T N E S S E T H:
ARTICLE I
Lease of Property - Term of Lease
Section 1.01. Landlord, in consideration of the rents,
covenants, agreements, and conditions herein set forth which Tenant hereby
agrees shall be paid, kept, and performed by Tenant, does hereby lease, let,
demise, and rent exclusively unto Tenant, and Tenant does hereby rent and lease
from Landlord, the following described premises:
A tract of land containing 15.0633 acres, and being Parcel Two of
Parcel Map 5112, filed September 29, 1987 in Book 122 of Parcel Maps,
Pages 11 through 14, inclusive, Alameda County Records.
Section 1.02. This Lease is subject to:
(a) All present and future laws, ordinances, resolutions,
regulations and orders of all municipal, county, state,
federal or other governmental bodies, boards, agencies, or
other authority now or hereafter having jurisdiction; and
(b) The matters set forth in Exhibit "A" attached hereto and
incorporated by reference herein for all purposes, to the
extent, and only to the extent, that same may validly affect
the above described premises.
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Section 1.03. TO HAVE AND TO HOLD the hereinabove described
tract of land subject to the matters as aforesaid, together with all and
singular the rights, privileges, and appurtenances thereunto attaching or in
anywise belong, unto Tenant, its legal representatives, successors and assigns,
for a term commencing August 1, 1988 and ending at midnight on August 31, 2003,
subject to earlier termination as herein provided, and upon and subject to the
covenants, agreements, terms, provisions and limitations hereinafter set forth,
all of which Tenant covenants and agrees to perform and observe.
ARTICLE 2
Definitions
Section 2.01. The terms defined in this Section shall, for
all purposes of this Lease, and all agreements supplemental hereto, have the
meanings herein specified, unless the context otherwise requires.
(a) The terms "Agreement", "Lease Agreement", and "this Lease"
shall mean and refer to this instrument.
(b) The term "Default Rate" shall mean the lesser of (a) the
Prime Rate plus five percent (5%) per annum or (b) the
maximum non-usurious rate permitted by law.
(c) The term "Demised Land" shall mean the tract of land described
in Section 1.01 hereof.
(d) The term "Demised Premises" shall mean the Demised Land and
the Improvements.
(e) The term "Event of Default" shall have the same meaning as
ascribed to it in Section 12.01 of this Agreement.
(f) The term "Impositions" shall mean all taxes, assessments, use
and occupancy taxes, transit taxes, water and sewer charges,
rates and rents, charges for public utilities, excises,
levies, license and permit fees and other charges, general
and special, ordinary and extraordinary, foreseen and
unforeseen, of any kind and nature whatsoever, which shall or
may during the term of this Lease be assessed, levied,
charged, confirmed or imposed upon or accrue or become due or
payable out of or on account of or become a lien on the
Demised Premises or any part thereof, the appurtenances
thereto or the sidewalks or streets adjacent thereto, or the
rent and income received by or for the account of Tenant from
any subtenants or for any use or occupation of the Demised
Premises, and such franchises,
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licenses and permits as may be appurtenant to the use of the
Demised Premises, or any documents to which Tenant is a
party, creating or transferring an interest or estate in the
Demised Premises payable to any governmental body; but shall
not include any income taxes, capital levy, estate,
succession, inheritance or transfer taxes or similar tax of
Landlord, or any franchise taxes imposed upon any owner of
the fee of the Demised Premises, or any income, profits or
revenue tax, assessment or charge imposed upon the rent or
other benefit received by Landlord under this Lease, by any
municipality, county or state, the United States of America
or any governmental body; provided, however, that if at any
time during the term of this Lease, the present method of
taxation or assessment shall be so changed that the whole or
any part of the taxes, assessments, levies, impositions or
charges now levied, assessed or imposed on real estate and
improvements thereon shall be discontinued and, as a
substitute therefor, taxes, assessments, levies, impositions,
or charges shall be levied, assessed and/or imposed wholly or
partially as a capital levy or otherwise on the rents
received from said real estate or the rents reserved herein
or any part thereof, then such substitute taxes, assessments,
levies, impositions or charges, to the extent so levied,
assessed and/or imposed, shall be deemed to be included
within the term H Impositions n to the extent that such
substitute tax would be payable if the Demised Premises were
the only property of Landlord subject to such tax.
(g) The term "Improvements" shall mean the improvements presently
erected on the Demised Land which are owned by Landlord,
consisting of three (3) buildings containing approximately
219,818 square feet of rentable area with on-site parking for
710 automobiles, as well as any additions thereto or
alterations thereof installed by Tenant pursuant to the terms
of this Lease but excluding any personal property,
furnishings, and trade fixtures owned by Tenant.
(h) The term "Landlord's Mortgagee" shall mean the holder of any
"Landlord's Mortgage" (as defined in Section 11.01 hereof).
(i) The term "Prime Rate" shall mean the average of the annual
rates of interest announced or published, at the applicable
time, by the three largest (considering the capital and
surplus of such banks) national banks then doing business in
Livermore, Alameda County, California, as their "prime rate"
regardless of whether
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such rate is actually the lowest rate actually charged by any
such banks.
(j) The phrases "term of this lease", "Lease term", "term" or
similar phrases shall mean the period of time set forth in
Section 1.03 hereof.
(k) The term "Tenants shall mean Triad Systems Corporation or any
other corporation resulting from the merger, acquisition,
consolidation, or dissolution of Triad Systems Corporation or
an entity which acquires all or substantially all of the
assets of Triad Systems Corporation.
(l) The term "unavoidable delays" shall mean delays due to
strikes, lock- outs, acts of God, inability to obtain labor
or materials, governmental restrictions, enemy action, war,
civil commotion, fire, unavoidable casualty, construction
delays due to unusual weather, or other similar causes beyond
the reasonable control of Tenant.
Section 2.02. The captions and the Article numbers of this
Lease are for convenience and reference only and in no way define, limit, or
describe the scope or intent of this Lease nor in any way affect this Lease.
Section 2.03. The table of contents preceding this Lease,
although under the same cover, is for the purpose of convenience and reference
only and is not to be deemed or construed in any way as part of this Lease, nor
as supplemental thereto or amendatory thereof.
ARTICLE 3
Rent
Section 3.01. Tenant, in consideration of the leasing of the
Demised Premises to it by Landlord, hereby covenants and agrees to pay to
Landlord at the times and as and in the manner herein provided and subject to
the terms, provisions, and conditions herein set forth, without notice or
demand and (except as referred to in Section 3.07 hereof) without any setoff or
deduction whatsoever, the rental provided for in this Article 3.
Section 3.02. The annual base rental (herein called "Annual
Base Rental") due hereunder shall be $2,505,720.00.
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The Annual Base Rental shall be paid monthly in advance in
twelve (12) equal installments, one such installment to be payable on the first
day of each month during the term hereof.
Section 3.03. All payments of Annual Base Rental, additional
rent and other payments required to be made to Landlord shall be in funds which
are legal tender at the place of payment at the time of payment and shall be
made to Landlord, at the office of Landlord at 0000 Xxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxx Xxxxxx, Xxxxxxxxxx, or to such other person and/or at such other place
as Landlord may designate from time to time in writing to Tenant; provided,
however, for purposes of establishing or laying venue in any proceeding
relating to this Lease, all such amounts shall be deemed payable in Livermore,
Alameda County, California, where exclusive venue shall lie. In addition to
other proper methods of payment, all payments of Annual Base Rental, additional
rent, and other sums payable to Landlord by Tenant under this Lease may be
made, and shall be deemed to have been properly made, by the mailing or
delivery to Landlord of Tenant's good and sufficient check or draft in the
amount of such payment, and shall be deemed timely made if received by Landlord
on or before the due date thereof; provided that if such check or draft be not
paid and honored upon presentation thereof, duly endorsed, for any reason
whatsoever, such check or draft shall not constitute payment.
No sale or transfer of ownership of Landlord's interest in
the Demised Premises shall be binding upon Tenant until Tenant shall have
received written notice from Landlord (or the successor assignor) of such sale
or transfer, together with a certified copy of the recorded deed or other
instrument of conveyance.
Section 3.04. This Lease shall be deemed and construed to be
a "net lease", and Tenant shall pay to Landlord, net throughout the term of
this Lease, the Annual Base Rental, additional rent and other payments due
hereunder, free of any Impositions and without abatement, deduction or set-off;
and under no circumstances or conditions, whether now existing or hereafter
arising, or whether or not beyond the present contemplation of the parties,
shall Landlord or Tenant be expected or required to make any payment of any
kind whatsoever or be under any other obligation or liability hereunder except
as herein otherwise expressly set forth.
Section 3.05. All additional rent and other charges and
payments provided for under this Lease shall constitute rent payable hereunder
with the same effect as if the same were the Annual Base Rental reserved and
provided for herein and, in the event of the non-payment by Tenant of any such
additional rent or other payments when due according to the terms of this
Lease, Landlord shall have the same rights and remedies in respect
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thereof as Landlord shall or may have in respect of the Annual Base Rental
herein reserved and provided for. When used in this Lease the term "rent" means
and includes Annual Base Rent, additional rent and all other sums payable under
this lease.
Section 3.06. No happening, event, occurrence or situation
during the term of this Lease, whether foreseen or unforeseen, and however
extraordinary, shall relieve Tenant from its liability to pay the Annual Base
Rental, additional rent and other charges and payments under this Lease, or
shall relieve Tenant from any of its other obligations under this Lease, and
Tenant waives any rights now or hereafter conferred upon it by statute,
proclamation, decree or order, or otherwise, to any abatement, diminution,
reduction or suspension of rent on account of any such event, happening,
occurrence or situation.
ARTICLE 4
Payment of Impositions
Section 4.01. As additional rent during the term of
this Lease Tenant will pay or cause to be paid, as and when the same shall
become due, all Impositions as defined in Section 2.01(c), except that:
(a) All Impositions for the fiscal year or tax year in which this
Lease begins as well as during the year in which the term of
this Lease expires shall be apportioned so that Tenant shall
pay its proportionate share of the Impositions which are
payable in the year in which the term of this Lease begins
and in the year in which the term of this Lease expires, and
Landlord shall pay its proportionate part of such amounts.
(b) Where any Imposition is permitted by law to be paid in
installments, Tenant may pay such Imposition in installments
as and when such installments become due or the day any fine,
penalty, interest or costs may be added thereto or imposed,
or the day any lien may be filed, whichever is later;
provided, however, that the amount of all installments of any
such Impositions which are to become due and payable after
the expiration of the term of this Lease shall not be
apportioned (except as provided in subsection (a) hereof) but
shall be and become due and payable to Landlord or the taxing
authority six (6) months before the date of the expiration of
the term of this Lease.
Section 4.02. Tenant shall pay all such Impositions directly
to the taxing authority, and shall exhibit and deliver
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to Landlord Photostat copies of the receipted bills or other evidence
satisfactory to Landlord showing such payment promptly after such receipts
shall have been received by Tenant but in all events at least thirty (30) days
prior to the date of delinquency (subject to Tenant's rights to contest such
Impositions as set forth in Section 4.03, below).
Section 4.03. Tenant may, if Tenant shall so desire, contest
the validity or amount of any Imposition, in which event, Tenant may defer the
payment thereof during the pendency of such contest; provided that, no later
than the date the same shall have become due, Tenant shall have deposited with
Landlord's Mortgagee (referred to in this Section 4.03 as the "Imposition
Trustee") an amount sufficient to pay such contested item together with the
interest and penalties thereon (as reasonably estimated by Landlord or the
Imposition Trustee if said amount be deposited with it), which amount shall be
applied to the payment of such item when the amount thereof shall be finally
fixed and determined. In lieu of such cash deposit, Tenant may deliver to
Landlord, a surety company bond in form and substance reasonably satisfactory
to Landlord, issued by a company reasonably acceptable to Landlord. Nothing
herein contained, however, shall be so construed, as to allow such items to
remain unpaid for such length of time as shall permit the Demised Premises, or
any part thereof, to be sold by any governmental, city or municipal authority
for the non-payment of the same; and if at any time, in the judgment of
Landlord, reasonably exercised, it shall become necessary so to do, Landlord,
after written notice to Tenant, may, under protest if so requested by Tenant,
direct the application of the said moneys so deposited or so much thereof as
may be required to prevent the sale of the Demised Premises or any part
thereof, or foreclosure of the lien created thereon by such item. If the amount
so deposited as aforesaid shall exceed the amount of such payment, the excess
shall be paid to Tenant or, in case there shall be any deficiency, the amount
of such deficiency shall be promptly paid on demand by Tenant to Landlord, or,
at the election of Tenant, to the Imposition Trustee, and, if not paid, shall
be payable as additional rent with interest at the Default Rate contemporaneous
with the next installment or any subsequent installments of Annual Base Rental
and thereafter becoming due and shall be collectible as rent.
Section 4.04. The certificate, advice, xxxx or statement
issued or given by the appropriate officials authorized or designated by law to
issue or give the same or to receive payment of any Impositions, of the
existence, non- payment or amount of such Imposition shall be prima facie
evidence for all purposes of the existence, non-payment or amount of such
Imposition.
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Section 4.05. Tenant may render the Demised Premises for all
taxing jurisdictions and may, if Tenant shall so desire, endeavor at any time
or times to obtain a lowering of the assessed valuation upon the Demised
Premises for the purpose of reducing taxes thereon and, in such event, Landlord
will offer no objection, and, at the request of Tenant, will cooperate with
Tenant, but without expense to Landlord, in effecting such a reduction. Tenant
shall be authorized to collect any tax refund payable as a result of any
proceeding Tenant may institute for that purpose and any such tax refund shall
be the property of Tenant to the extent to which it may be based on a payment
made by Tenant, subject, however, to an apportionment between Landlord and
Tenant with respect to taxes paid or contributed by Landlord in the year in
which this Lease began and the year in which the term of this Lease ends, after
deducting from such refund the costs and expenses, including reasonable legal
fees, incurred by Tenant in connection with obtaining such refund.
Section 4.06. Landlord shall not be required to join in any
action or proceeding referred to in Section 4.03 or Section 4.05 hereof unless
required by law or any rule or regulation in order to make such action or
proceeding effective, in which event, any such action or proceeding may be
taken by Tenant in the name of, but without expense to, Landlord, Tenant hereby
agreeing to save Landlord harmless from all costs, expenses, claims, loss or
damage by reason of, in connection with, on account of, growing out of, or
resulting from, any such action or proceeding.
Section 4.07. If Landlord is required by Landlord's Mortgagee
to escrow sums for Imposition, then in such event, Tenant shall deposit in
escrow with Landlord's Mortgagee an amount equal to one-twelfth (l/12th) of the
amount of the Impositions for such prior calendar year, on the 1st day of each
calendar month of the then-current calendar year. To the extent that the sums
thus deposited are sufficient therefor, Landlord's Mortgagee shall pay
therefrom all Impositions due for such calendar year at the time or times when
the payments thereof become due. In the event that the sums thus deposited by
Tenant are insufficient to pay the actual amount of Impositions for such
then-current year, then in such event, Tenant shall be obligated to pay the
amount of any such deficiency to the appropriate taxing authority; in the event
that the amount so deposited (including income accruing thereon) exceeds the
amount of Impositions for such then-current calendar year, the excess shall be
refunded to Tenant.
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ARTICLE 5
Alterations and Additions
Section 5.01. Tenant shall have the right, from time to time,
to make, during the term of this Lease at its sole cost and expense, additions,
alterations and changes (hereinafter sometimes referred to in this Section 5.01
as "alterations") in or to the Demised Premises, provided Tenant shall not then
be in default in the performance of any of Tenant's covenants or agreements in
this Lease, subject, however, in all cases to the following:
(a) no structural or exterior alterations shall be commenced
except upon prior written consent of Landlord;
(b) no alterations of any kind, shall be made which would tend
(i) to impair the structural soundness of the Improvements,
(ii) to decrease the total cubical volume of the
Improvements, (iii) to give to any owner, lessee or occupant
of any other property or to any other person or corporation
any easement, right-of-way or any other right over Landlord's
interest in the Demised Premises, or (iv) to modify the basic
utility and function of the Improvements;
(c) no alterations shall be undertaken until Tenant shall have
procured and paid for, so far as the same may be required
from time to time, all permits and authorizations of all
municipal departments and governmental subdivisions having
jurisdiction. Landlord shall join, but without expense to
Landlord, in the application for such permits or
authorizations whenever such action is necessary and is
requested by Tenant;
(d) any alterations involving in the aggregate an estimated cost
of more than $100,000.00 shall be conducted under the
supervision of an architect or engineer selected by Tenant,
and no such alterations shall be made, except in substantial
accordance with detailed plans and specifications and cost
estimates prepared and approved in writing by such architect
or engineer;
(e) any alterations shall be made within a reasonable time
(subject to unavoidable delays) and in a good and workmanlike
manner and in compliance with all applicable permits and
authorizations and building and zoning laws and with all
other laws, ordinances, orders, rules, regulations and
requirements of all federal, state and municipal governments,
departments,
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commissions, boards and officers, and in accordance with the
orders, rules and regulations of the National Board of Fire
Underwriters, or any other body or bodies hereafter
exercising similar functions;
(f) if any involuntary liens for labor and materials supplied or
claimed to have been supplied to the Demised Premises shall
be filed, Tenant shall pay, bond or otherwise obtain the
release or discharge thereof with reasonable promptness but
in all events prior to foreclosure thereof;
(g) a policy of workmen's compensation insurance covering all
persons employed in connection with the work and with respect
to whom death or bodily-injury claims could be asserted
against Landlord, Tenant or the Demised Premises and, to the
extent that the insurance under subsection (b) of Section
7.01 hereof does not adequately protect Landlord with respect
to said alterations, comprehensive general liability
insurance for the mutual benefit of Landlord and Tenant in a
minimum amount of $5,000,000.00, which comprehensive general
liability insurance policy shall include (i) coverage for
bodily injury and death, property damage and product's
liability coverage; and (ii) contractual liability coverage
insuring the obligations of Tenant under the terms of this
Lease shall be maintained by Tenant at the Tenant's sole cost
and expense at all times when any work is in progress in
connection with any alterations. All such insurance policies
shall be in standard form and shall be in such responsible
companies as Landlord shall approve, which approval shall not
be unreasonably withheld. All policies of liability insurance
and certificates of workmen's compensation insurance therefor
issued by the respective insurers, bearing notations
evidencing the payment of premiums or accompanied by other
evidence reasonably satisfactory to Landlord of such payment,
shall be delivered to Landlord prior to the commencement of
any alterations;
(h) if the cost of any such alterations shall be in excess of
$100,000.00 as reasonably estimated by the architect,
Landlord may require Tenant to furnish to Landlord a surety
company bond in form reasonably satisfactory to Landlord,
issued by a company reasonably acceptable to Landlord, or
other security reasonably satisfactory to Landlord, in an
amount at least equal to the estimated cost of such
alterations, guaranteeing the completion and payment of the
cost thereof free and clear of all liens, conditional bills
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of sale and chattel mortgages growing out of such alteration
work other than Permitted Mortgages.
In no event shall Tenant be entitled to any abatement,
allowance, reduction or suspension of the Annual Base Rental, additional rent
and other payment herein reserved or required to be paid by reason of such
alterations nor shall Tenant, by reason thereof, be released of or from any
other obligations imposed upon Tenant under this Lease.
Whether under the provisions of this Lease or otherwise,
neither Tenant nor any of Tenant's agents, employees, representatives,
contractors or subcontractors shall have any power or authority to do and act
or thing or to make any contract or agreement which shall result in the
creation of any mechanics' lien or other lien or claim upon or against
Landlord's interest in the Demised Premises, and Landlord shall have no
responsibility to Tenant or to any contractor, subcontractor, supplier,
materialman, xxxxxxx or other person, firm or corporation who shall engage in
or participate in any additions, alterations, changes or replacements thereof
unless Landlord shall expressly undertake such obligation by an agreement in
writing signed by Landlord and made between Landlord and Tenant, or such
contractor, subcontractor, supplier, materialman, xxxxxxx or other person, firm
or corporation.
ARTICLE 6
Use, Maintenance, and Repairs
Section 6.01. Tenant is presently occupying the Demised
Premises under the Existing Lease and is fully aware of the physical condition
and state thereof, and Tenant accepts the same on an "AS-IS, WHERE-IS basis in
the physical condition and state in which the Demised Premises now are without
any representation or warranty, express or implied in fact or by law, by
Landlord and without recourse to Landlord, as to the physical nature, condition
or usability thereof.
Landlord shall not be required to furnish any services or
facilities or to make any repairs or alterations in or to the Demised Premises,
throughout the term of this Lease, Tenant hereby assuming the full and sole
responsibility for the condition, demolition, construction, operation, repair,
replacement, maintenance and management of the Demised Premises, as herein
stated.
Section 6.02. Tenant shall use the Demised Premises solely
for general office purposes as its corporate headquarters and for related
purposes incidental thereto including, but not
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limited to, manufacturing and warehousing uses incidental thereto.
Section 6.03. Tenant shall not use or occupy or permit the
Demised Premises to be used or occupied, nor do or permit anything to be done
in or on the Demised Premises, in whole or in part, in a manner which would in
any way make void or voidable any insurance then in force with respect thereto,
or which would make it impossible to obtain fire or other insurance thereon
required to be furnished by Tenant hereunder, or as will cause or be apt to
cause structural injury to the Improvements or any part thereof, or as will
constitute a public or private nuisance, and shall not use or occupy or permit
the Demised Premises to be used or occupied, in whole or in part, in a manner
which violates any present or future, ordinary or extraordinary, foreseen or
unforeseen laws, regulations, ordinances or requirements of the federal, state
or municipal governments, or of any departments, subdivision, bureaus or
offices thereof, or of any other governmental, public or quasi-public
authorities now existing or hereafter created, having jurisdiction over the
Demised Premises; provided, however, that Tenant may, in good faith (and
wherever necessary, in the name of, but without expense to, Landlord) and after
having secured Landlord to its reasonable satisfaction by cash or by a surety
company bond in an amount, in a company and in substance reasonably
satisfactory to Landlord, against loss or damage, contest the validity of any
such laws, regulations, ordinances or requirements and, pending the
determination of such contest, may postpone compliance therewith, except that
Tenant shall not so postpone compliance therewith as to subject Landlord to any
fine or penalty or to prosecution for a crime, or to cause the Demised Premises
or any part thereof to be condemned or to be vacated. Tenant will indemnify and
save harmless Landlord against any recovery or loss to which Landlord may be
subject or which Landlord may sustain, including reasonable attorney's fees and
expenses incurred by Landlord arising or alleged to arise from any breach of
this covenant or by reason of any action or proceedings which may be brought
against Landlord or against the Demised Premises, or any part thereof, by
virtue of violation of any such laws, regulations, ordinances or requirements
relating to the use and occupancy of the Demised Premises, or by virtue of any
such present or future law of the United States of America, or of the State of
California, or the County of Alameda, City of Livermore, or other municipal,
public or quasi-public authority now existing or hereafter created, having
jurisdiction in the premises.
Section 6.04. Tenant shall take good care of the Demised
Premises, make all repairs thereto, interior and exterior, structural and non-
structural, ordinary and extraordinary, foreseen and unforeseen, and shall
maintain and keep the Demised Premises and the sidewalks and curbs in first
class
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order, repair and condition, reasonable wear and tear excepted. Tenant shall
also keep the Common Areas of the Demised Premises free and clear from rubbish
and shall not encumber or obstruct the same or allow the same to be encumbered
or obstructed in any manner.
Section 6.05. Tenant shall have the right at any time and
from time to time to sell or dispose of any building equipment or personal
property subject to this Lease which may have become obsolete or unfitted for
use or which is no longer useful, necessary or profitable in the conduct of
Tenant's business, provided that if such equipment or property be necessary to
the operation of the Improvements, Tenant shall then or theretofore substitute
for the same other building equipment or personal property not necessarily of
the same character, but capable of performing the same function as that
performed by the property so disposed of, and of high quality and suitable for
its intended purpose.
Section 6.06. Tenant shall diligently comply with and execute
at its own expense during the term of this Lease, all present and future laws,
acts, rules, requirements, orders, directions, ordinances, and/or regulations,
ordinary and extraordinary, foreseen or unforeseen, concerning the condition or
use of the Demised Premises or any part thereof, or the streets adjacent
thereto, of any federal, state, municipal or other public department, bureau,
officer or authority or of the National Board of Fire Underwriters, or other
body having similar functions, or of any liability, fire, or other insurance
company having policies outstanding with respect to the Demised Premises,
whether or not such laws, acts, rules, requirements, orders, directions,
ordinances and/or regulations require the making of structural alterations or
the use or application of portions of the Demised Premises for compliance
therewith or interfere with the use and enjoyment of the Demised Premises, and
shall protect, hold harmless and indemnify Landlord of and from all fines,
penalties, claim or claims for damages of every kind and nature arising out of
any failure to comply with any such laws, acts, rules, requirements, orders,
directions, ordinances and/or regulations; provided, further, that Tenant may,
in good faith (and wherever necessary, in the name of, but without expense to,
Landlord), and after having secured Landlord to its reasonable satisfaction by
cash or by a surety company bond in an amount, in a company and in substance
satisfactory to Landlord, against loss or damage, contest the validity of any
such law, act, rule, requirement, order, direction, ordinance and/or regulation
and, pending the determination of such contest, may postpone compliance
therewith, except that Tenant shall not so postpone compliance therewith, as to
subject Landlord to any fine or penalty or to prosecution for a crime, or to
cause the Demised Premises or any part thereof to be condemned or to be
vacated.
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Section 6.07. Landlord shall not be responsible or liable for
any damage or injury to any property, fixtures, merchandise or decorations or
to any person or persons at any time on the Demised Premises from steam, gas or
electricity or from water, rain or snow, whether the same may leak into, issue
or flow from any part of the Improvements or from pipes or plumbing work of the
same, or from any other place or quarter; nor shall Landlord be in any way
responsible or liable in case of any accident or injury including death to any
of Tenant's employees, agents, or to any person or persons in or about the
Demised Premises or the streets or sidewalks adjacent thereto and Tenant agrees
that it will not hold Landlord in any way responsible or liable therefor and
will further indemnify and hold Landlord harmless from and against any and all
claims, liability, penalties, damages, expenses and judgments arising from
injury to persons or property of any nature and also for any matter or thing
growing out of the occupation of the Demised Premises, or of the streets or
sidewalks adjacent thereto. Landlord shall not be liable for interference with
light or incorporeal hereditaments by anybody, or caused by the operation by or
for any governmental authority in the construction of any public or
quasi-public work, and Landlord shall not be liable for any latent or any other
defects in the Improvements or any building or buildings now or hereafter
erected upon the Demised Land. Landlord here assigns to Tenant, without
warranty, on a non-exclusive basis, any and all warranties, guaranties, or
other rights which Landlord may have against any contractors constructing any
portion of the Improvements.
Section 6.08. Landlord shall have the right to show the
Demised Premises at any time during the term hereof to any prospective
purchasers or mortgagees of the same, and may enter upon the Demised Premises,
or any part thereof, for the purpose of ascertaining the condition of said
premises or whether Tenant as observing and performing the obligations assumed
by it under this Lease, all without hindrance or molestation from Tenant.
Landlord shall also have the right to enter upon the Demised Premises for the
purpose of making any necessary repairs thereto and performing any work thereof
that may be necessary by reason of Tenant's failure to make any such repairs or
perform any such work. The above-mentioned rights of entry shall be exercisable
only at reasonable times, at reasonable hours, at reasonable intervals and on
reasonable notice. Nothing contained herein, however, shall impose or imply any
duty on the part of Landlord to make any such repairs or perform any such work.
Section 6.09. Notice is hereby given that Landlord shall not
be liable for any labor or materials furnished or to be furnished to Tenant
upon credit, and that no mechanics' or other lien, for any such labor or
materials shall attach to or affect the reversionary or other estate or
interest of Landlord in and
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to the Demised Premises. Whenever and as often as any such lien shall have been
filed against the Demised Premises, if based upon any action or interest of
Tenant, any subtenant or of any one claiming through Tenant or such subtenant,
Tenant shall forthwith take such action by bonding, deposit or payment as will
remove or satisfy the lien and, in default thereof for thirty (30) days after
notice to Tenant, then in addition to any other of Landlord's rights and
remedies, Landlord may pay the amount of such mechanics' lien, or discharge the
same by bond or deposit, and the amount so paid or deposited (including the
premium on any such bond) with interest thereon at the Default Rate from the
date of such payment or deposit shall be deemed additional rent reserved under
this Lease and, at the option of Landlord, shall be payable contemporaneously
with the next installment of rent or with any subsequent installment of rent
thereafter becoming due.
Section 6.10. Upon the expiration of the term of this Lease
or on the sooner termination thereof, Tenant shall peaceably and quietly leave,
surrender and yield up unto Landlord all and singular the Demised Premises
broom-clean and free of occupants and shall repair all damage to the Demised
Premises caused by or resulting from the removal of any removable property of
Tenant. Any removable property of Tenant which shall remain on the Demised
Premises after the expiration of the term of this Lease or sooner termination
thereof and the removal of Tenant from the Demised Premises may, at the option
of Landlord, be deemed to have been abandoned, and either may be retained by
Landlord as its property or may be disposed of in such manner as Landlord may
see fit. If such personal property or any part thereof shall be sold, Landlord
may receive and retain the proceeds of such sale and apply the same, at its
option, against the expenses of the sale, the cost of moving and storage, any
arrears of rent or additional rent payable hereunder and any damages to which
Landlord may be entitled under Article 12 hereof or pursuant to law.
Section 6.11. If Tenant holds over and refuses to surrender
possession of the Demised Premises after the termination of this Lease by lapse
of time or otherwise, Landlord shall have the option to treat such holding over
as a tenancy at sufferance. During such tenancy the Annual Base Rental shall be
one hundred fifty percent (150%) of the amount in effect immediately prior to
the termination of this Lease, plus a prorated part of the Impositions.
Section 6.12. Tenant will indemnify, protect and save
harmless Landlord from and against each and every claim, demand, fine, penalty,
cause of action, liability, damage, judgment or 1088, of whatsoever kind or
nature, to which Landlord may be subject or which Landlord may sustain,
including without limitation, reasonable attorneys' fees, reasonable costs and
other
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reasonable expenses incurred by Landlord in defending against the same,
resulting or alleged to result from any violation by Tenant or any failure of
Tenant in the performance of any of the covenants or agreements contained in
this Article or in any other Article of this Lease.
ARTICLE 7
Insurance
Section 7.01. During the term of this Lease, Tenant will, at
its sole cost and expense, keep and maintain policies of --
(a) insurance on the Improvements or any replacements or
substitutions therefor against loss or damage by fire and
against loss or damage by other risks now insured against by
"ALL RISKS" provisions of policies generally in force on
Improvements of like type in Livermore, California, in
amounts sufficient to provide coverage for the full insurable
value of the Improvements or any replacements or
substitutions therefor, the policy for which insurance shall
have a replacement cost endorsement or similar provision. The
term "full insurable value" shall mean actual replacement
value (exclusive of cost of excavation, foundations and
footings). Such "full insurable value" shall be determined
from time to time (but not more frequently than once in any
twelve calendar months) at the request of Landlord, by one of
the insurers or, at the option of Tenant, by an appraiser,
engineer, architect or contractor approved in writing by
Landlord (which approval shall not be unreasonably withheld)
and paid by Tenant. No omission on the part of Landlord to
request any such determination shall relieve Tenant of any of
its obligations under this Article;
(b) comprehensive general public liability insurance protecting
and indemnifying Tenant and Landlord against any and all
claims for damages to person or property or for loss of life
or of property occurring upon, in, or about the Demised
Premises and the adjoining streets, in a minimum amount of
$5,000,000.00;
(c) war risk insurance upon the Improvements as and when such
insurance is obtainable from the United States Government or
any agency or instrumentality thereof, and a state of war or
national or public emergency exists or threatens, in the
maximum amount obtainable up to the full insurable value
thereof;
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(d) boiler and pressure apparatus liability insurance to the
limit of not less than $100,000 in respect of any one
accident, provided, however, that if the improvements shall
be without a boiler plant, no such boiler insurance will be
required; and
(e) such other insurance on the Improvements or any replacements
or substitutions therefor and in such amounts as may from
time to time be reasonably required by Landlord against other
insurable hazards which at the time are commonly insured
against in the case of premises similarly situated, due
regard being given to the height and type of the
Improvements, its construction, location, use and occupancy,
or any replacements or substitutions therefor.
Section 7.02. All insurance provided for in subsections (a),
(b), (d), and (e) of Section 7.01 hereof shall be effected under policies,
issued by companies which are rated at least XII-A by Tests Rating Guide or
other national rating organizations.
Any policies of insurance of the character described in subsections (a), (c)
and (e) of Section 7.01 hereof shall expressly provide that any losses
thereunder shall be adjusted with and approved by Landlord, Tenant and
Landlord's Mortgagee. All such insurance shall be carried in the name of
Landlord, Tenant and Landlord's Mortgagee and loss thereunder shall be paid to
Landlord's Mortgagee and held pursuant to the terms of its mortgage.
Section 7.03. At the times required under the provisions of
Section 7.01 and not less than thirty (30) days prior to the expiration dates
of the expiring policies theretofore furnished pursuant to this Article 7,
originals or certified copies of the policies bearing notations evidencing the
payment of premiums or accompanied by other evidence satisfactory to Landlord
of such payment shall be delivered by Tenant to Landlord, except that whenever
there shall be a Landlord's Mortgage, the originals of such policies of
insurance may be deposited with Landlord's Mortgagee until Landlord's Mortgage
shall be paid, in which event duplicate originals or certified copies of such
policies shall meanwhile be delivered to Landlord. If Tenant defaults in
obtaining any insurance as required in this Article 7, Landlord may at its
option, but without any obligation so to do, obtain such insurance and pay the
premiums therefor, and Tenant shall reimburse Landlord for any premiums so
paid, together with interest thereon at the Default Rate, and any premiums so
paid by Landlord shall be considered as additional rent due and owing by Tenant
to Landlord. In the event of the termination of this Lease, Landlord shall
succeed to all of the
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rights of Tenant in and to any insurance policies then in force and effect,
including all unearned premiums.
Section 7.04. Tenant shall not take out separate insurance
concurrent in form or contributing in the event of loss with that required in
this Article 7 to be furnished by, or which may reasonably be required to be
furnished by Tenant, unless Landlord is included therein as an insured, with
loss payable as in this Lease provided. Tenant shall immediately notify
Landlord of the taking out of any such separate insurance and shall deliver the
policy or policies or certified copies as provided in Section 7.03 hereof.
Section 7.05. Each policy delivered hereunder shall contain
an agreement by the insurer that such policy shall not be canceled without at
least thirty (30) days' prior written notice to Landlord and any Landlord's
Mortgagee.
Section 7.06. At the expiration of the term of this Lease,
all policies shall be transferred to Landlord free of all right, title and
interest of Tenant except as to Tenant ' s interest with respect to any prior
casualty loss and those claiming under Tenant, and Landlord shall pay to Tenant
an amount equal to the unearned premiums apportioned as of such expiration
date.
Section 7.07. Notwithstanding any provision to the contrary
contained herein, during the term of the "Loan," provided that Tenant complies
with all the requirements of the "Beneficiary" under the "Deed of Trust" (as
all such quoted terms are defined in Section 25.12, below), with respect to
insurance, Tenant shall be deemed to be in compliance with the terms hereof.
ARTICLE 8
Damage or Destruction
Section 8.01. If, at any time during the term of this Lease,
the Demised Premises or any part thereof shall be damaged or destroyed by fire
or other casualty (including any casualty for which insurance coverage was not
obtained or obtainable) of any kind or nature, ordinary or extraordinary,
foreseen or unforeseen, Tenant, at its sole cost and expense, and whether or
not the insurance proceeds, if any, shall be sufficient for the purpose, shall
commence and thereafter proceed with reasonable diligence (subject to a
reasonable time allowance for the purpose of adjusting the insurance loss and
for unavoidable delay) to repair, alter, restore, replace or rebuild the same
as nearly as possible to its value immediately prior to such damage or
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destruction, subject to such changes or alterations as Tenant may elect to make
in conformity with the provisions of Section 5.01 hereof. Such repair,
alteration, restoration, replacement or rebuilding, including such changes and
alterations as aforementioned and including temporary repairs for the
protection of other property pending the completion of any thereof, are
sometimes referred to in this Article 8 as the "Work".
Section 8.02. Except as otherwise provided in this Article 8,
the conditions under which any Work is to be performed and the method of
proceeding with and performing the same shall be governed by all of the
provisions of Section 5.01 hereof.
Section 8.03. Subject to the terms of Landlord's Mortgage,
all insurance proceeds paid to Landlord's Mortgagee (referred to in this
Article 8 as the "Insurance Trustee") on account of such damage or destruction
under the policies of insurance provided for in Article 7 hereof, (sometimes
referred to in this Article 8 as the Insurance Proceeds), shall be applied by
the Insurance Trustee to the payment of the cost of the Work to the extent such
Insurance Proceeds shall be sufficient for that purpose, and shall be paid out
to or for the account of Tenant from time to time as such Work progresses. The
Insurance Trustee shall make such payments or disbursement upon the written
request by Tenant when accompanied by the following:
(a) a certificate, dated not more than fifteen (15) days prior to
such request, signed by Tenant or its duly authorized
representative and by a qualified architect of recognized
standing in charge of the Work who shall be selected by
Tenant setting forth that --
(i) the sum then requested either has been paid by
Tenant or is justly due to contractors,
subcontractors, materialmen, architects or other
persons who have rendered services or furnished
materials in connection with the Work, giving a
brief description of the services and materials and
the several amounts so paid or due and stating that
no part thereof has been made the basis of any
previous or then pending request or has been paid
out of any proceeds of insurance received by Tenant,
and that the sum requested does not exceed the cost
of the services and materials described in the
certificate,
(ii) except for the amount stated in such certificate to
be due as aforesaid, there is no outstanding
indebtedness known to the persons signing such
certificate after due inquiry which might become the
basis of a vendor's, mechanic's or
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materialmens' or similar lien upon such Work, the
Demised Premises or Tenant's leasehold interest, or
any part thereof, and
(iii) the cost, as estimated by the persons signing such
certificate, of the Work required to be done
subsequent to the date of such certificate in order
to complete the same, does not exceed the amount of
Insurance Proceeds remaining in the hands of the
Insurance Trustee after the payment of the sum so
requested; and
(b) a certificate, dated not more than fifteen (15) days prior to
such request, of a title or abstract company satisfactory to
Landlord then doing business in the City of Livermore,
covering the period from the date of this Lease (or the date
of the last such certificate furnished pursuant to any of the
applicable provisions of this Lease) to the date of such
certificate, setting forth all liens and encumbrances, if
any, of record and reflecting that there are no involuntary
liens or encumbrances of record of any kind on the Demised
Premises except those permitted by the terms of this Lease
and except such as will be discharged by payment of the
amount then requested.
Subject to the terms of Landlord' 8 Mortgage, upon compliance
with the foregoing provisions of this Section 8.03, the Insurance Trustee
shall, out of the Insurance Proceeds, pay or cause to be paid to Tenant or to
the persons named in the certificate the respective amounts stated therein to
have been paid by Tenant or to be due to them, as the
Upon receipt by the Insurance Trustee of evidence
satisfactory to it of the character required by subsections (a) and (b) of this
Section 8.03 that the Work has been completed and paid for in full and there
are no liens of the character referred to therein, and if Tenant is not then in
default, the Insurance Trustee shall pay any remaining balance of the Insurance
Proceeds to Landlord's Mortgagee, if there be any, and if not, to Tenant.
If the Insurance Proceeds received by the Insurance Trustee
shall be insufficient to pay the entire cost of the Work as reasonably
estimated by Landlord, Tenant shall supply the amount of any such deficiency
and shall first apply the same to the payment of the cost of the Work before
calling upon the Insurance Trustee for the disbursement of the Insurance
Proceeds held by the Insurance Trustee.
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Under no circumstance shall Landlord be obligated to make any
payment, disbursement or contribution towards the cost of the Work.
Section 8.04. In no event shall Tenant be entitled to any
abatement, allowance, reduction or suspension of rent because part or all of
the Demised Premises shall be untenantable owing to the partial or total
destruction thereof; and notwithstanding anything herein to the contrary, no
such damage or destruction shall affect in any way the obligation of Tenant to
pay the Annual Base Rental, additional rent and other payments herein reserved
or required to be paid, nor release Tenant of or from any obligation imposed
upon Tenant under this Lease.
ARTICLE 9
Condemnation
Section 9.01. If, at any time during the term of this Lease,
title to the whole or substantially all of the Demised Premises shall be taken
in condemnation proceedings or by any right of eminent domain, this Lease shall
terminate and expire on the date of such taking and the Annual Base Rental and
additional rent reserved shall be apportioned and paid to the date of such
taking. For purposes of this Article 9, "substantially all of the Demised
Premises" shall be deemed to have been taken if the untaken portion cannot be
practically and economically used or converted for use by Tenant for the
purposes for which the Demised Premises are being used immediately prior to
such taking.
In the event of any such taking and the termination of this
Lease:
(a) Landlord shall be entitled to receive
(i) the entirety of such portion of said award or awards
as shall represent compensation for the value of the
Demised Land, or the part thereof so taken,
considered as vacant and unimproved and such portion
of such award or awards with the interest, if any,
paid by the condemning authority as shall represent
consequential damages, if any, to the portion of the
Demised Land not so taken, considered as vacant and
unimproved; plus
(ii) such portion of said award or awards, with interest,
if any paid by the condemning authority as shall
represent compensation for the value which the
Improvements would have had at the
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expiration of the term of this Lease, but for such
taking;
(b) Tenant shall be entitled to receive the balance of said award
or awards, with interest, if any paid by the condemning
authority as shall represent compensation for the value of
the Improvements or portion thereof taken.
Tenant hereby assigns to Landlord all rights which Tenant may
have by virtue of this Lease or otherwise in and to any portion of said award
or awards described in item (a), above and grants to Landlord the exclusive
right to negotiate with the condemning authority with respect to such award or
awards or portions thereof.
Section 9.02. In the event of any such taking of less than
the whole or substantially all of the Demised Premises, the term of this Lease
shall not be reduced or affected in any way, and
(a) Landlord shall be entitled to receive and retain as its own
property such portion of the award or awards with the
interest thereon, if any, paid by the condemning authority as
shall represent compensation for the value of the Demised
Land, or the part thereof, so taken considered as vacant and
unimproved, plus consequential damages to the portion or
portions of the Demised Land not so taken, considered as
vacant and unimproved.
(b) if the balance of said award or awards (including
compensation for the Improvements or portion thereof taken,
and damages if any to the Improvements not so taken) (herein
sometimes referred to as "Condemnation Proceeds") shall be
paid to Landlord's Mortgagee (who in this Article 9 is
referred to as the "Condemnation Trustee") and held pursuant
to the terms of Landlord's Mortgage and this Article 9;
(c) Tenant, at its sole cost and expense and whether or not the
Condemnation Proceeds payable under subsection (b) of this
Section 9.02 shall be sufficient for the purpose, shall
commence and thereafter proceed with reasonable diligence to
repair, alter and restore the remaining part of the Demised
Premises so as to constitute a complete, rentable project,
subject to such changes or alterations as Tenant may elect to
make in conformity with the provisions of Section 5.01
hereof. Such repairs, alterations or restoration, including
such changes and alterations as above mentioned and including
temporary repairs, for the protection of
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other property pending the completion of any thereof, are
sometimes referred to in this Section 9.02 as the "Work";
(d) the conditions under which the Work is to be performed and
the method of proceeding with and performing the same shall
be governed by all of the provisions of Section 5.01 hereof;
and
(e) subject to the terms of Landlord's Mortgage, the Condemnation
Trustee shall hold, apply, make available and pay over to
Tenant the Condemnation Proceeds in the same manner as is
provided to be done by the Insurance Trustee with respect to
insurance proceeds under the provisions of Section 7.02
hereof, provided that the references in Section 7.02 to the
provisions of Sections 8.01, 8.02 and 8.03 shall be deemed to
be references to the provisions of subsections (c), (d) and
(e) respectively of this Section 9.02;
Section 9.03. If the whole or any part of the Demised
Premises or of Tenant's interest in this Lease shall be taken in condemnation
proceedings or by any right of eminent domain for a temporary use or occupancy,
the term of this Lease shall not be reduced or affected in any way and Tenant
shall continue to pay in full the Annual Base Rental, additional rent and other
payments herein reserved, without reduction or abatement in the manner and at
the times herein specified and, except only to the extent that Tenant is
prevented from so doing pursuant to the terms of the order of the condemning
authority, Tenant shall continue to perform and observe all of the other
covenants, agreements, terms and provisions of this Lease as though such taking
had not occurred.
Section 9.04. Landlord and Tenant each covenant and agree to
seek separate awards in all such condemnation proceedings and to use their
respective best efforts to see that such separate awards are made at all stages
of all such proceedings.
Section 9.05. Tenant, Landlord and Landlord's Mortgagee shall
each have the right, at its own expense, to appear in any condemnation
proceeding and to participate in any and all hearings, trials and appeals
therein.
Section 9.06. In the event Landlord or Tenant shall receive
notice of any proposed or pending condemnation proceeding affecting the Demised
Premises, the party receiving such notice shall promptly notify the other party
and Landlord's Mortgagee.
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ARTICLE 10
Assignment and Sublease
Section 10.01. Tenant shall not assign, transfer, pledge,
mortgage or sublease the Demised Premises or any portion thereof or any
interest therein without the prior written consent of Landlord which shall not
be unreasonably withheld.
Section 10.02. If this Lease be assigned with Landlord's
consent, Landlord may and i8 hereby empowered to collect Annual Base Rental and
other sums payable hereunder to accrue thereafter from the assignee. In such
event, Landlord may apply the net amount received by it to the Annual Base
Rental, additional rent and other payments herein reserved or provided for.
Section 10.03. The making of any assignment, mortgage,
pledge, encumbrance or subletting, in whole or in part, shall not operate to
relieve Tenant from Tenant's obligations under this Lease and, notwithstanding
any such assignment, mortgage, pledge, encumbrance or subletting, Tenant shall
remain liable for the payment of all Annual Base Rental, additional rent and
other charges and for the due performance of all the covenants, agreements,
terms and provisions of this Lease to the full end of the term of this Lease,
whether or not there shall have been any prior termination of this Lease by
summary proceedings or otherwise.
Section 10.04. Any consent by Landlord herein contained or
hereafter given to any act or acts for which Landlord's consent is by the terms
hereof required, shall be held to apply only to the specific transaction hereby
or thereby approved.
ARTICLE 11
Mortgage of the Fee
Section 11.01. Any first lien mortgage or deed of trust (a
"Landlord's Mortgage") hereafter covering Landlord's interest in the Demised
Premises including, without limitation, any such deed of trust in favor of The
Variable Annuity Life Insurance Company, shall be subject to the Tenant's
interest under this Lease provided, however, upon request of any such
Landlord's Mortgagee, Tenant shall subordinate its interest hereunder to any
such Landlord's Mortgage so long as such Landlord's mortgagee agrees not to
disturb Tenant's possession provided Tenant is not in default hereunder.
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ARTICLE 12
Default Provisions
Section 12.01. This Lease and the term and estate hereby
granted are subject to the limitation that
(a) whenever Tenant shall default in the payment of any
installment of Annual Base Rental, additional rent or any
other sum payable by Tenant to Landlord on any date upon
which the same ought to be paid, and if such default shall
continue for ten (10) days after Landlord shall have given to
Tenant a written notice specifying such default; or
(b) whenever Tenant shall do, or permit to be done, whether by
action or inaction, anything contrary to any covenant or
agreement on the part of Tenant herein contained or shall
fail in keeping or performance of any of the covenants,
agreements, terms or provisions contained in this Lease which
on the part or behalf of Tenant are to be kept or performed
(other than those referred to in the foregoing subsection (a)
of this Section 12.01) and Tenant shall fail to commence
(subject to unavoidable delay) to take steps to remedy the
same within thirty (30) days after Landlord shall have given
to Tenant a written notice specifying the same, or having so
commenced shall thereafter fail to proceed diligently to
remedy the same, but, in all events, within ninety (90) days
after such notice; or
(c) whenever a decree or order for relief shall be entered by a
court having jurisdiction over Tenant in an involuntary case
under the federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, or a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or
similar official) shall be appointed for any substantial part
of Tenant's property, or the winding-up or liquidation of
Tenant's affairs shall be ordered, and such situation under
this subsection (c) shall continue and shall not be remedied
by Tenant within one hundred twenty (120) days after the
happening of any such event; or
(d) whenever Tenant shall commence a voluntary case under the
federal bankruptcy laws, as now constituted or hereafter
amended, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or Tenant shall consent to
the appointment of a receiver, liquidator, assignee, trustee,
custodian, sequestrator
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(or other similar official) of any substantial part of the
property of Tenant, or to the taking possession of any such
property by any such functionary or the making of any
assignment for the benefit of creditors by Tenant, or Tenant
shall fail generally to pay its debts as such debts become
due, or any corporate Tenant shall take corporate action in
furtherance of any of the foregoing;
(any of the aforesaid occurrence being herein referred to as an "Event of
Default") then at any time thereafter Landlord may at its option, in addition
to all other rights and remedies given hereunder or by law or equity, do any
one or more of the following:
(a) Landlord shall be entitled to keep this Lease in full force
and effect and Landlord may enforce all of its rights and
remedies under this Lease, including the right to recover
rent and other sums as they become due, plus interest at the
highest rate then allowed by law, from the due date of each
installment of rent or other sum until paid; or
(b) Landlord may terminate Tenant's right to possession by giving
Tenant written notice of termination, whereupon this Lease
and all of Tenant's rights in the Premises shall terminate.
Any termination under this paragraph shall not release Tenant
from the payment of any sum then due Landlord or from any
claim for damages or rent accrued.
Exercise by Landlord of any one or more remedies hereunder
granted or otherwise available shall not be deemed to be an acceptance of
surrender of the Demised Premises by Tenant, whether by agreement or by
operation of law, it being understood that such surrender can be effected only
by the written agreement of Landlord and Tenant.
Section 12.02. Upon any such termination of this Lease or
Tenant's right to possession of the Demised Premises or upon expiration of this
Lease, Tenant shall peaceably quit and surrender the Demised Premises to
Landlord, and Landlord may without further notice enter upon, re-enter, possess
and repossess itself thereof, by force summary proceedings, ejectment or
otherwise, and may dispossess and remove Tenant and all other persons and
property from the Demised Premised and may have, hold and enjoy the Demised
Premises and the right to receive all rental and other income of and from the
same.
Section 12.03. In the event Landlord exercises the remedies
grant pursuant to Section 12.01(b), Landlord may recover
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from Tenant all damages incurred by Landlord by reason of Tenant's default,
including, but not limited to: (i) the cost of recovering possession of the
Premises: (ii) expenses of reletting, including necessary renovation and
alteration of the Premises; (iii) reasonable attorneys' fees, any real estate
commissions actually paid and that portion of any leasing commission paid by
Landlord applicable to the unexpired term of this Lease; (iv) the worth at the
time of award of the unpaid rent which had been earned at the time of
termination; and (v) any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform Tenant's
obligations under this Lease, or which in the ordinary course of things would
be likely to result therefrom.
The "worth at the time of award" of the amounts referred to
in subparagraph (iv) of this Section 12.03 shall be computed by allowing
interest at the maximum rate then permitted by law. The term "rent" as used in
this paragraph shall include all sums required to be paid by Tenant to Landlord
pursuant to the terms of this Lease. Actions to collect amounts due by Tenant
provided for in this paragraph of Section 12.03 may be brought from time to
time by Landlord during the aforesaid period, on one or more occasions, without
the necessity of Landlord's waiting until expiration of such period; and in no
event shall Tenant be entitled to any excess of rent (or rent plus other sums)
obtained by reletting over and above the rent
Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this Lease would have expired if
it had not been terminated under the provisions of this Article 12, or under
any provisions of law, or had Landlord not re-entered the premises.
Nothing herein contained shall be construed as limiting or
precluding the recovery by Landlord against Tenant of any damages to which
Landlord may lawfully be entitled in any case other than those particularly
provided for above.
Section 12.04. To the extent permitted by law, Tenant, for
Tenant, and on behalf of any and all persons claiming through or under Tenant,
including creditors of all kinds, does hereby waive and surrender all right and
privilege which they or any of them might have under or by reason of any
present or future law, to redeem the Demised Premises or to have a continuance
of this Lease for the term hereby demised after being dispossessed or ejected
therefrom by process of law or under the terms of this Lease or after the
termination of this Lease as herein provided.
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Section 12.05. The words "enter", "entry", "re-enter" or
"reentry" are not restricted to their technical legal meanings.
Section 12.06. In case of any default arising hereunder or
holding over or possession by Tenant after the expiration or termination of
this Lease, Tenant shall pay Landlord for all actual reasonable expenses
incurred by Landlord by reason thereof, including but not limited to reasonable
attorneys' fees.
Section 12.07. In the event of termination of this Lease or
of Tenant's right to possession of the Demised Premises or repossession of the
Demised Premises for an event of default, Landlord shall not have any
obligation to re-let or attempt to re-let the Demised Premises, or any portion
thereof, or to collect rental after re-letting (if any); but Landlord shall
have the option to re-let or attempt to re-let and in the event of re-letting
Landlord may re-let the whole or any portion of the Demised Premises for any
period, to any tenant, and for any use and purpose.
Section 12.08. In the event of any default by Landlord,
Tenant's exclusive remedy shall be an action for damages (Tenant hereby waiving
the benefit of any laws granting it a lien upon the property of Landlord and/or
upon rent due Landlord), but prior to any such action Tenant will give Landlord
written notice specifying such default with particularity, and Landlord shall
thereupon have a reasonable period, but in no event less than thirty (30) days,
in which to commence to cure any such default. Unless and until Landlord fails
so to commence to cure any default after such notice or having so commenced
thereafter fails to exercise reasonable diligence to complete such curing,
Tenant shall not have any remedy or cause of action by reason thereof. All
obligations of Landlord hereunder will be construed as covenants, not
conditions; and all such obligations will be binding upon Landlord only during
the period of its possession of the Demised Premises and not thereafter.
ARTICLE 13
Landlord's Right To Perform; Cumulative Remedies; Waivers
Section 13.01. If Tenant shall fail to pay any Imposition or
make any other payment required to be made under this Lease or shall default in
the performance of any other covenant, agreement, term, provision or condition
herein contained, or shall default in the performance of any covenant,
agreement, term, provision or condition contained in any sublease of the
Demised Premises and shall not cure such default within
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the time permitted in any such sublease, Landlord, without being under any
obligation to do so and without thereby waiving such default, may make such
payment and/or remedy such other default for the account and at the expense of
Tenant (and enter the Demised Premises for such purposes) immediately and
without notice in the case of emergency, or, in any other case, if Tenant shall
fail to make such payment or remedy such default with all reasonable dispatch
after Landlord shall have notified Tenant in writing of such default. Bills for
any reasonable expense incurred by Landlord in connection therewith, and bills
for all reasonable costs, expenses and disbursements of every kind and nature
whatsoever, including reasonable counsel fees, involved in collection or
endeavoring to collect the Annual Base Rental or additional rent or any part
thereof, or enforcing or endeavoring to enforce any right against Tenant, under
or in connection with this Lease, or pursuant to law, including (without being
limited to) any such reasonable attorney's fees and cost, expense and
disbursements involved in instituting and prosecuting summary proceedings, as
well as reasonable bills for any property, material, labor or services
provided, furnished or rendered, or caused to be furnished or rendered, by
Landlord to Tenant, with respect to the Demised Premises and other equipment
and construction work done for the account of Tenant (together with interest at
the Default Rate from the respective dates of Landlord's making of each such
payment or incurring of each such cost or expense), may be sent by Landlord to
Tenant monthly, or immediately, at Landlord's option, and shall be due and
payable in accordance with the term of said bills and if not paid when due the
amount thereof shall immediately become due and payable as additional rent
under this lease.
Section 13.02. Landlord may restrain any breach or threatened
breach of any covenant, agreement, term, provision or condition herein
contained, but the mention herein of any particular remedy shall not, in any
case other than those particularly provided for above, preclude Landlord from
any other remedy it might have, either in law or in equity. The failure of
Landlord to insist upon the strict performance of any one of the covenants,
agreements, terms, provisions or conditions of this Lease or to exercise any
right, remedy or election herein contained or permitted by law shall not
constitute or be construed as a waiver or relinquishment for the future of such
covenant, agreement, term, provision, condition, right, remedy or election, but
the same shall continue and remain in full force and effect. Any right or
remedy of Landlord in this Lease specified or any other right or remedy that
Landlord may have at law, in equity or otherwise upon breach of any covenant,
agreement, term, provision or condition in this Lease contained upon the part
of Tenant to be performed, shall be distinct, separate and cumulative rights or
remedies and no one of them whether exercised by Landlord or not, shall be
deemed to be in
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exclusion of any other. No covenant, agreement, term, provision or condition of
this Lease shall be deemed to have been waived by Landlord unless such waiver
be in writing, signed by Landlord or Landlord's agent duly authorized in
writing. Consent of Landlord to any act or matter must be in writing and shall
apply only with respect to the particular act or matter to which such consent
is given and shall not relieve Tenant from the obligations wherever required
under this Lease to obtain the consent of Landlord to any other act or matter.
Receipt or acceptance of Annual Base Rent or additional rent by Landlord shall
not be deemed to be a waiver of any default under the covenants, agreements,
terms, provisions and conditions of this Lease, or of any right which Landlord
may be entitled to exercise under this Lease. In the event that Tenant is in
arrears in the payment of Annual Base Rent or additional rent, Tenant waives
Tenant's right, if any, to designate the items against which any payments made
by Tenant are to be credited and Tenant agrees that Landlord may apply any
payments made by Tenant to any items Landlord sees fit irrespective of and
notwithstanding any designation or request by Tenant as to the items against
which any such payments shall be credited. This Lease may not be changed
orally, but only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification or discharge is sought.
ARTICLE 14
Intentionally Omitted
ARTICLE 15
Intentionally Omitted
ARTICLE 16
Intentionally Omitted
ARTICLE 17
Impairment of Landlord's Title
Section 17.01. Nothing in this Lease shall be deemed or
construed to mean that Landlord has granted to Tenant any right, power or
permission to do any act or to make any agreement which may create, give rise
to, or be the foundation for, any
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right, title, interest, lien, charge or other encumbrance upon the estate of
Landlord in the Demised Premises other than to the extent of the leasehold
created hereunder or to be created under any new lease which Landlord is
obligated to execute hereunder.
ARTICLE 18
Tenant's Bankruptcy
Section 18.01. Landlord and Tenant agree that if Tenant ever
becomes the subject of a voluntary or involuntary bankruptcy, reorganization,
composition, or other similar type proceeding under the Federal Bankruptcy
Laws, as now enacted or hereinafter amended, then "adequate protection" of
Landlord's interest in the Demised Premises pursuant to the provisions of
Sections 361 and 363 (or their successor sections) of the Bankruptcy Code, 11
U.S.C. Paragraph 101, et seq. (such Bankruptcy Code as amended from time to
time being herein referred to as the "Bankruptcy Code") prior to assumption
and/or assignment of the Lease by Tenant shall included, but not be limited to
the continued payment by Tenant of all Annual Base Rental, additional rent and
all other sums due and owing under this Lease and the performance of all other
covenants and obligations under this Lease by Tenant.
Section 18.02. Any person or entity to which this Lease is
assigned pursuant to the provisions of the Bankruptcy Code, shall be deemed
without further act or deed to have assumed all of the obligations of Tenant
arising under this Lease on and after the effective date of such assignment.
Any such assignee shall, upon demand by Landlord, execute and deliver to
Landlord an instrument confirming such assumption of liability.
Section 18.03. Notwithstanding anything in this Lease to the
contrary, all amounts payable by Tenant to or on behalf of Landlord under this
Lease, whether or not expressly denominated as "rent", shall constitute "rent"
for the purposes of Section 502(b)(7) of the Bankruptcy Code.
Section 18.04. If this Lease is assigned to any person or
entity pursuant to the provisions of the Bankruptcy Code, any and all monies or
other considerations payable or otherwise to be delivered in connection with
such assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant or
of the Estate of Tenant within the meaning of the Bankruptcy Code. Any and all
monies or other considerations constituting Landlord's property under the
preceding sentence not paid or delivered to Landlord shall be held in trust by
Tenant for the benefit of
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Landlord and shall be promptly paid to or turned over to Landlord.
Section 18.05. If Tenant assumes this Lease and proposes to
assign the same pursuant to the provisions of the Bankruptcy Code to any person
or entity who shall have made a bona fide offer to accept an assignment of this
Lease on terms acceptable to the tenant, then notice of such proposed offer/
assignment, setting forth (i) the name and address of such person or entity,
(ii) all of the terms and conditions of such offer, and (iii) the adequate
assurance -to be provided Landlord to assure such person's or entity's future
performance under the Lease, shall be given to Landlord by Tenant no later than
twenty (20) days after receipt by Tenant, but in any event no later than ten
(10) days prior to the date that Tenant shall made application to a court of
competent jurisdiction for authority and approval to enter into such assumption
and assignment, and Landlord shall thereupon have the prior right and option,
to be exercised by notice to Tenant given at an prior to the effective date of
such proposed assignment, to accept an assignment of this Lease upon the same
terms and conditions and for the same consideration, if any, as the bona fide
offer made by such persons or entity, less any brokerage commissions which may
be payable out of the consideration to be paid by such person for the
assignment of this Lease.
ARTICLE 19
Estoppel Certificate
Section 19.01. Landlord and Tenant shall execute and deliver
to each other, at such time or times as either Landlord or Tenant may request,
a certificate evidencing:
(a) whether or not the Lease is in full force and effect;
(b) whether or not the Lease has been modified or amended in any
respect, and submitting copies of such modifications or
amendments, if any;
(c) whether or not there are any existing defaults hereunder to
the knowledge of the party executing the certificate, and
specifying the nature of such defaults, if any; and
(d) such other matters as may be reasonably requested by the other
party.
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ARTICLE 20
Intentionally Omitted
ARTICLE 21
Invalidity of Particular Provisions
Section 21.01. If any term or provision of this Lease or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provisions to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
ARTICLE 22
Notice
Section 22.01. Any notice, communication, request, reply or advice, or
duplicate thereof (in this Section 22.01 severally and collectively, for
convenience, called "Notice") , in this Lease provided or permitted to be
given, made or accepted by either party to any other party must be in writing,
and may, unless otherwise in this instrument expressly provided, be given or be
served by depositing the same in the United States mail, adequate postage
prepaid and registered or certified and addressed to the party to be notified,
with return receipt requested, or by delivering the same in person to such
party, or, if the party or parties to be notified be incorporated, to an
officer of such party, or by prepaid telegram, when appropriate, addressed to
the party to be notified. Notice deposited in the mail in the manner
hereinabove described shall be effective, unless otherwise stated in this
Lease, from and after the expiration of three (3) days after it is so
deposited. Notice given in any other manner shall be effective only if and when
received by the party to be notified. For purposes of Notice the addresses of
the parties shall, until changed as hereinafter provided, be as follows:
If to Landlord, to: 0000 Xxxxx Xx. Corp.
0000 Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
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If to Tenant, to: Triad Systems Corporation
0000 Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
With a copy to: Xxxx & Freidenrich
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxx
However, the parties hereto and their respective heirs, successors, legal
representatives and assigns shall have the right from time to time and at any
time to change their respective addresses and each shall have the right to
specify as its/their address any other address within the continental United
States of America by at least fifteen (15) days' written Notice to the other
party; provided, however, if at any one time more than one person or party owns
an interest in the Demised Premises, nevertheless such persons or parties may
not designate more than two places or addresses to receive Notice pursuant to
the terms hereof. Each party shall have the right to change such party's
address for purposes of Notice, by giving written Notice to the other party in
the manner herein set forth.
ARTICLE 23
Non-Waiver
Section 23.01. No variations, modifications or changes herein
or hereof shall be binding upon any party hereto unless executed by it or by a
duly authorized officer or a duly authorized agent of the particular party. No
waiver or waivers of any breach or default or any breaches or defaults by
either party of any term, condition or liability of or performance by the other
party of any duty or obligation hereunder, including without limitation the
acceptance by Landlord or payment by Tenant of any rentals at any time or in
any manner other than as herein provided, shall be deemed a waiver thereof or
of any waiver thereof in the future, nor shall any such waiver or waivers be
deemed or construed to be a waiver or waivers of subsequent breaches or
defaults of any kind, character or description under any circumstance.
Section 23.02. The acceptance by Landlord of any performance,
Annual Base Rental, additional rent or other sum or sums of money or other
charges herein reserved to be paid or provided to be done by Tenant from any
person, firm or corporation other than Tenant shall not discharge Tenant or any
others liable with Tenant except to the extent of the performance and payment
so accepted by Landlord from liability to pay the Annual Base Rental herein
reserved, additional rent or other sum or sums
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of money and other charges herein provided to be paid by Tenant or from
liability to perform any of the terms, covenants, conditions and agreements
herein set forth.
ARTICLE 24
Warranty of Peaceful Possession;
Limitation of Landlord's Liability
Section 24.01. Landlord covenants and warrants that Tenant on paying
the rents herein provided and performing all of its covenants and agreements
herein contained, shall and may peaceably and quietly have, hold, occupy, use
and enjoy, and shall have the full, exclusive and unrestricted use and
enjoyment of, all of the Demised Premises during the entire term hereof, for
any and all lawful purposes subject to the other terms and provisions hereof;
and provided Tenant has fully performed all of its obligations hereunder,
Landlord agrees to warrant and forever defend the title to the Demised Land
against the claims of any and all persons whomsoever lawfully claiming or to
claim the same or any part thereof, subject only to the provisions of this
Lease.
Section 24.02. It is expressly understood and agreed that the term
"Landlord" as used in this Lease, means only the owner for the time being of
the Demised Premises, and in the event of the sale, assignment or transfer by
such owner of its interest in said premises, such owner shall thereupon be
released and discharged from all covenants and obligations of Landlord
thereafter accruing; but such covenants and obligations shall run with the land
and be binding upon each new owner or successor for the time being of the
Demised Premises. No such change in ownership shall be binding on Tenant until
notice thereof shall be given to Tenant, accompanied by a counterpart original
or certified copy of the instrument of conveyance which shall have effected
such change. Under no circumstances whatsoever shall Landlord ever be liable
hereunder for consequential damages or special damages; and all liability of
Landlord for damages for breach of any covenant, duty or obligation of Landlord
hereunder may be satisfied only out of the interest of Landlord in the Demised
Premises existing at the time any such liability is adjudicated in a
proceedings as to which the judgment adjudicating such liability is
non-appealable and not subject to further review.
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ARTICLE 25
Miscellaneous
Section 25.01. This Lease Agreement has been negotiated in
and shall be construed and enforced in accordance with the laws of the State of
California.
Section 25.02. All personal pronouns used in this Agreement
shall include the other genders whether used in the masculine or feminine or
neuter gender and the singular shall include the plural whenever and as often
as may be appropriate. The words "hereof," "herein," "hereunder," "hereinafter"
and the like refer to this entire instrument, not just to the specific Article,
section or paragraph in which such words appear.
Section 25.03. This Lease shall constitute a real right and
covenant running with the Demised Premises, and this lease and all of its terms
and provisions shall be binding upon and inure to the benefit of the parties
hereto, their respective heirs, legal representatives, successors and assigns
(subject to the limitations on assignment by Tenant hereunder), and whenever in
this Lease a reference to either of the parties hereto is made, such reference
shall be deemed to include, wherever applicable, a reference to the heirs,
legal representatives, successors and assigns of said party.
Section 25.04. Intentionally Omitted.
Section 25.05. Tenant shall keep accurate books of account
showing all costs and expenses incurred and charges made and all credits and
returns made and received in connection with the management of the Demised
Premises. Upon written requests from Landlord, Tenant shall furnish to Landlord
copies of significant contracts and agreements relating to maintenance,
operation and upkeep of the Improvements.
Section 25.06. Intentionally Omitted.
Section 25.07. In any circumstances where Landlord is
permitted to enter upon the Demised Premises during this Lease, whether for the
purpose of curing any default of Tenant, repairing damage resulting from fire
or other casualty or an eminent domain taking or is otherwise permitted
hereunder or by law to go upon the Demised Premises, no such entry shall
constitute an eviction or disturbance of Tenant's use and possession of the
Demised Premises or a breach by Landlord of any of its obligations hereunder or
render Landlord liable for damages of 1088 of business or otherwise or entitle
Tenant to be relieved from any of its obligations hereunder or grant Tenant any
right of set-off or recoupment or other remedy; and in
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connection with any such entry incident to performance of repairs,
replacements, maintenance or construction, all of the aforesaid provisions
shall be applicable notwithstanding that Landlord may elect to take building
materials upon the Demised Premises that may be required or utilized in
connection with such entry by Landlord.
Section 25.08. Landlord and Tenant stipulate and agree that
in the event of any breach or threatened breach of any covenant, duty or
obligation of Tenant contained in this Lease, damages would be inadequate and
speculative, and, therefore, Landlord shall be entitled, at Landlord's option,
to the appointment of a receiver, a temporary restraining order and/or a
temporary injunction, without the necessity of proving the inadequacy of any
legal remedy or irreparable harm. Tenant hereby waives any and all defenses to
the application for a receiver, temporary restraining order and/or temporary
injunction, and hereby consents to such action in the event of any breach or
threatened breach by Tenant. The foregoing provisions of this Section 25.08 are
express conditions which this Lease is entered into by Landlord. The remedies
of Landlord hereunder shall be deemed cumulative and no remedy of Landlord,
whether exercised by Landlord or not, shall be deemed to be in exclusion of any
other. Except as may be otherwise herein expressly provided, in all
circumstances under this Lease where prior consent or permission of one party
("first party") is required before the other party ("second party") is
authorized to take any particular type of acting, the matter of whether to
grant such consent or permission shall be within the sole and exclusive
judgment and discretion of the first party; and it shall not constitute any
nature of breach by the first party hereunder or any defense to the performance
of any covenant, duty or obligation of the second party hereunder that the
first party delayed or withheld the granting of such consent or permission,
whether or not the delay or withholding of such consent or permission was
prudent or reasonable or based on good cause.
Section 25.09. In all instances where Tenant is required
hereunder to pay any sum or do any act at a particular indicated time or within
an indicated period, it is understood that time is of the essence.
Section 25.10. The obligation of Tenant to pay all rent and
other sums hereunder provided to be paid by Tenant and the obligation of Tenant
to perform Tenant's other covenants and duties hereunder constitute
independent, unconditional obligations to be performed at all times provided
for hereunder, save and except only when an abatement thereof or reduction
therein is hereinabove expressly provided for and not otherwise. Tenant waives
and relinquishes all rights which Tenant might have to claim any nature of lien
against or withhold, or deduct from or
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off-set against any rent and other sums provided hereunder to be paid Landlord
by Tenant. Tenant waives and relinquishes any right to assert, either as a
claim or as a defense, that Landlord is bound to perform or is liable for the
nonperformance of any implied covenant or implied duty of Landlord not
expressly herein set forth.
Section 25.11. All monetary obligations of Landlord and
Tenant (including, without limitation), any monetary obligation of Landlord or
Tenant for damages for any breach of the respective covenants, duties or
obligations of Landlord or Tenant hereunder) are performable exclusively in
Livermore, Alameda County, California.
Section 25.12. Reference is here made to that certain loan
commitment dated June 10, 1988, as amended by letters dated June 23 and July 8,
1988, issued by American General Investment Corporation to Triad Systems
Corporation (the "Commitment"). As part of the consideration for funding the
loan contemplated under the Commitment (the "Loan"), Triad Systems Corporation
has assigned the Commitment to 0000 Xxxxx Xx. Corp., and it is contemplated
that 0000 Xxxxx Xx. Corp., as maker, shall execute and deliver to The Variable
Annuity Life Insurance Company ("Beneficiary"), as payee, a promissory note in
the amount of $15,500,000.00, which promissory note shall be secured, inter
alia, by a First Deed of Trust and Assignment of Rents, Security Agreement and
Fixture Filing covering, inter alia, the Land (the "Deed of Trust"). Landlord
and Tenant hereby agree that this Lease may be terminated by Tenant upon the
occurrence of any of the following circumstances:
(1) Prior to foreclosure of the Deed of Trust, by payment in full
of all sums payable under the Note and the Deed of Trust
(subject to and in accordance with the terms thereof,
including, without limitation, any provisions thereof
limiting prepayment rights); or
(2) Following foreclosure of the Deed of Trust, by payment of all
sums payable under the Note and Deed of Trust (subject to and
in accordance with the terms thereof, including, without
limitation, any provisions thereof limiting prepayment
rights) as if such foreclosure had not occurred, together
with all costs and expenses incurred by the holder of the
Note in connection with any such foreclosure.
The provisions of this Section 25.12 are not meant to be, and do not
constitute, any amendment or modification of the rights of the holder of the
Note or the Beneficiary under the Deed of Trust. The affidavit by Beneficiary
of the amounts due under
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items (1) or (2) preceding shall be conclusive and binding upon Tenant with
respect to such matters.
This Lease Agreement is hereby executed and delivered
effective as of the date and year first above written.
0000 XXXXX XX. CORP.
By: /s/ XXXXXX X. XXXXXXX
------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------
Title: Vice President
---------------------
"LANDLORD"
TRIAD SYSTEMS CORPORATION
By: /s/ XXXXX X. XXXXXX
------------------------
Name: Xxxxx X. Xxxxxx
----------------------
Title: President
---------------------
"TENANT"
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