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EXHIBIT 10.7
OFFICE BUILDING LEASE
THIS LEASE is made and executed this 3rd day of March, 1997, at Encino,
California, by and between XXXXXX X. Xxxx ("Lessor") and Voice Powered
Technology International Inc., A California Corporation (hereinafter "Lessee").
For and in consideration of the covenants hereinafter mentioned,
Lessor leases to Lessee and Lessee hereby leases from Lessor the premises known
as Suite 506,508 (the "Premises"), as more particularly described in the plans
attached hereto as Exhibit "_A " and made a part hereof, on the 5th floor of
the Tarzana Financial Complex Building, located at 00000_Xxxxxxx Xxxxxxxxx in
the City of Tarzana California (the "Building").
1 BASIC TERMS.
1.1 Term: The initial term of this Lease shall be for a period of three
(3) years commencing on the "Commencement Date" as defined in Article 2.1
hereof.
1.2 MONTHLY RENT: (Initial). The Rent payable pursuant to Article
3.1 hereof at the commencement of this Lease shall be the sum
of Nine Thousand Six Hundred Twenty Nine Dollars ($9,629.00)
per month.
1.3 SECURITY DEPOSIT. Lessee has deposited with Lessor the sum of
Twenty-Eight Thousand Eight Hundred Eighty Seven Dollars
($28,88700) as security deposit pursuant to Article 5 hereof
1.4 USE. Lessee shall use the Premises for the purpose of
conducting therein general offices and for no other purpose,
subject to the provisions of Article 6 hereof.
1.5 ADDRESSES FOR NOTICES:
Lessee: Voice Powered Technology International
00000 Xxxxxxx Xxxx, #000.000
Xxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxx, Vice President
Lessor: Xxxxxx X. Xxxx
0000 Xxxxxx Xxxx. #000
Xxxxxx, XX 00000
2 TERM.
2.1 TERM. The term of this Lease shall be for a period of time as
set forth in Article 1.1 hereinabove, and shall run for such period of time as
measured from the Commencement Date as hereinafter defined; provided however,
that in the event the Commencement Date falls on a date other than the first day
of a month, the initial term hereof shall be extended by that partial month
from the Commencement Date to the first day of the following month. In such
event, Lessee shall pay rent and other charges as defined in the Lease for the
period from the Commencement Date to the first day of the following month
pro-rated based on the number of days in such period versus the number of days
in the entire month.
The Commencement Date shall be April 1, 1997 (the "Commencement
Date"). The expiration date of the Lease shall be March 31, 2000 (the
"Expiration Date"). If the Commencement Date is delayed, the parties, upon
ascertaining the Commencement Date, shall immediately execute a confirmation of
the dates of the term of Lease in the form of a letter agreement signed by both
parties. Failure to execute such a confirmation of term of Lease shall not
prevent this Lease from expiring on the last day of the last month of the last
year of the Lease term.
2.2 Delay in Possession. Notwithstanding the Commencement Date,
if for any reason Lessor cannot deliver possession of the Premises to Lessee on
said date, Lessor shall not be subject to any liability therefore, nor shall
such failure affect the
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validity of this Lease or the obligation of Lessee hereunder. However, in such
a case, Lessee shall not be obligated to pay rent or perform any other
obligation of Lessee under the terms of this Lease, except as may be otherwise
provided in this Lease, until the time that Lessor tenders possession of the
Premises to Lessee. The term of this Lease shall be extended by such delay.
Notwithstanding the foregoing, if Lessor fails to deliver possession of the
Premises to Lessee within One Hundred Twenty (120) business days from said
Commencement Date, Lessee may, at Lessee's option, by notice in writing to
Lessor within ten (10) days thereafter, cancel this Lease, in which event the
parties shall be discharged from all obligations hereunder; provided further,
however, that if such written notice of Lessee is not received by Lessor within
said ten (10) days, Lessee's right to cancel this Lease hereunder shall
terminate and be of no further force or effect. If Lessee elects to cancel
said Lease by written notice after the expiration of the One Hundred Twenty
(120) business day period, Lessor shall incur no liability or penalty to Lessee
for Lessor's failure to tender possession of the Premises to Lessee. No change
in the commencement of term of the Lease shall occur if the delay is caused by
or on behalf of Lessee.
23 EARLY OCCUPANCY. In the event Lessor permits Lessee to occupy
the Premises before the Commencement Date, such occupancy shall be subject to
all the provisions of this Lease, including, without limitation, the payment of
Rent, unless otherwise agreed by the parties.
2.4 TERMINATION. This Lease shall terminate at the expiration of
the lease term without the necessity of notice from either party to the other
party. Lessee shall, upon the expiration or sooner termination of this Lease
hereof, surrender the Premises to Lessor in good condition, broom clean,
ordinary wear and tear, and damage from causes beyond the reasonable control of
Lessee excepted. Any damage to the Premises and/or any adjacent premises
caused by Lessee's use of the Premises shall be repaired at the sole cost and
expense of Lessee; if Lessee fails to repair such damage after notice from
Lessor, Lessor may cause the damage to be repaired and Lessee will immediately
reimburse Lessor for the costs of such repair. Lessee will repair and/or
replace any damage to the Premises caused by breaking and entering.
3 RENT.
3.1 RENT.
3.1.1 Lessee shall pay Lessor rent ("Rent") for the
Premises in monthly payments in advance commencing on the Commencement Date and
thereafter, in advance, on the first (1st) day of each succeeding calendar month
in the sum as prescribed in Article 1.2 of this Lease and as hereinafter
adjusted, without notice or demand, deduction or offset; provided, however, that
the first month's rent shall be paid prior to occupancy but in no event later
than March 31, 1997. In the event that the Commencement Date is not the first
(1st) day of a calendar month, Rent will be prorated for the period from the
Commencement Date to the first (1st) day of the next month. Rent shall be paid
to Lessor in lawful money of the United States of America and at such place as
Lessor may from time to time designate in writing.
3.1.2 The Rent will be increased, but in no event
decreased, on the first day of the month of each anniversary of the Commencement
Date (each such anniversary, an "Adjustment Date") in accordance with the
provisions of this Article and with reference to the Los Angeles-Riverside-
Anaheim, California Area Consumer Price Index (All Items) for Urban Wage Earners
and Clerical Workers as published by the Bureau of Labor Statistics of the
United States Department of Labor (1982-84=100) (the "Index"). The Index
published for the date which is one (1) calendar month prior to the Adjustment
Date (the "Adjustment Index") shall be compared with the Index published for the
date which is one (1) calendar month prior to the Commencement Date (the "Base
Index"). If the Adjustment Index is greater than the Base Index, then the
annual Rent payable from and after the Adjustment Date (until the next
adjustment) shall be determined by multiplying the initial annual Rent as set
forth in Article 1.2 by a fraction, the numerator of which shall be the
Adjustment Index and the denominator of which shall be the Base Index. When the
adjusted annual Rent is determined after each Adjustment Date, Lessor shall give
Lessee written notice indicating the amount and method of computation thereof.
If, at any Adjustment Date, the Index shall not exist, then Lessor may
substitute any official Index published by the Bureau of Labor Statistics or
successor or similar agency that is then most nearly equivalent to the Index. In
no event shall the rental adjustment provided for in this paragraph exceed six
percent (6%) in any one year, during the initial lease term only. The base
monthly rent for the purposes of calculating the annual cost of living increase
shall be $9,129.00.
3.2 ADDITIONAL RENT. In addition to the Rent, Lessee shall pay as
additional rent all other sums of money or charges required to be paid pursuant
to the terms of this Lease whether or not the same be designated "additional
rent." All Rent and additional
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rent which may become due under this Lease, including but not limited to,
attorneys' fees, late charges, interest, parking fees, bank charges, sign
charges, tenant improvements, utility charges, any extra goods and services
contracted for by Lessee and common area expenses, shall be deemed to be rent
hereunder. If such amounts or charges are not paid at the time provided for in
this Lease, these shall nevertheless, if not paid when due, be collectible as
additional rent upon demand, but nothing herein contained shall be deemed to
suspend or delay the payment of any amounts of money or charge at the time the
same becomes due and payable hereunder, or limit any remedy of Lessor.
4 POSSESSION AND CONDITION OF THE PREMISES.
4.1 POSSESSION. Subject to Article 2.1, possession of the Premises
will be given to Lessee on the Commencement Date, unless Lessee occupies the
Premises prior to said Commencement Date, and any such prior occupancy shall not
affect the expiration date under Article 2.1.
4.2 "AS IS." By entry hereunder, Lessee acknowledges that it has
examined the Premises and has accepted the Premises in their "as is" condition,
subject to the completion of Lessor's Work as set forth on Exhibit "A" hereto,
as of the date hereof and throughout the term of this Lease. Without limiting
the foregoing, Lessee's rights in the Premises are subject to all municipal,
county, state and federal laws, ordinances and regulations governing and
regulating the use and occupancy of the Premises. Lessee acknowledges that
neither Lessor nor Lessor's agent has made any representation or warranty as to
the present or future suitability of the Premises for the conduct of Lessee's
business. In no event shall Lessor be liable for any defect in such property or
from such limitation on its use.
5. SECURITY DEPOSIT.
Lessee, contemporaneously with the execution of this Lease, has
deposited with Lessor the sum of $19,258.00 as prescribed in Article 1.3 of this
Lease, and shall deposit with Lessor an additional $9,629.00 prior to occupancy
but in no event later than March 31, 1997, said deposit being given to secure
the faithful performance by Lessee of all of the terms, covenants and conditions
of this Lease by Lessee to be kept and performed during the term hereof. Lessee
agrees that if Lessee shall fail to pay the rent herein reserved promptly when
due, said deposit may, at the option of Lessor (but Lessor shall not be required
to) be applied to any rent due and unpaid, and if Lessee violates any of the
other terms, covenants, and conditions of this Lease, and after written notice
to Lessee advising Lessee of such violation and allowing Lessee ten (10) days to
cure such violation, said deposit may be applied to any damages suffered by
Lessor as a result of Lessee's default, to the extent of the amount of damages
suffered. Nothing in this Article 5 shall in any way diminish or be construed
as waiving any of Lessor's other remedies by law or in equity. Should all or
any part of the security deposit be applied by Lessor as herein provided, then
Lessee shall, on the written demand of Lessor, deposit cash with Lessor within
five (5) days of said demand sufficient to restore said security deposit to its
original amount. Within two weeks after the termination of this Lease, Lessor
shall return said security deposit to Lessee, less any portion of said security
deposit which may have been previously applied or expended by Lessor to remedy
or cure any default or breach on the part of Lessee hereunder. Lessor shall
have the right to commingle or invest said security deposit, and in no event
shall Lessee be entitled to receive any interest or income thereon, it being
agreed that any interest be deemed to be additional rent. Lessor may deliver
the funds deposited under this Article 5 by Lessee to the purchaser of Lessor's
interest in the Premises in the event such interest be sold; thereupon Lessor
shall be discharged from further liability with respect to such deposit.
6 USE AND LIMITATIONS.
6.1 USE. The Premises shall be used and occupied by Lessee and
its approved assignees, sublessees, licensees and concessionaires for the
purpose as described in Article 1.4 of this Lease and for no other purpose in
accordance with all present and future zoning laws, rules and regulations of
governmental authorities having jurisdiction thereof, and subject to all
covenants, easements and rights of way of record, if any.
6.2 GOVERNMENTAL ACTIONS. Lessee's consent shall not be required for
the creation of any covenants, easements or rights of way which are created by
the action of any governmental authority.
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6.3 USES PROHIBITED. Lessee shall not do or permit anything to be
done in or about the Premises nor bring or keep anything therein which is not
within the permitted use of the Premises nor which will in any way increase the
existing rate or affect any fire or other insurance upon the Building and/or
Premises or any part thereof or any of its contents. Lessee shall not do or
permit anything to be done in or about the Premises which will in any way
obstruct or interfere with the rights of other Lessees or occupants of the
building or injure or annoy them or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor shall Lessee be
permitted to conduct any business on the Premises, without the prior written
approval of Lessor, that differs from the use specifically set forth in Article
6.1 above. Furthermore, Lessee shall not cause, maintain or permit any nuisance
on/or about the Premises, shall not commit or allow to be committed any waste in
or about the Premises and shall not use the Premises for cooking, lodging or
sleeping. Lessee and Lessee's officers, agents and employees shall not cause or
permit any noxious or offensive odors to be emitted from the Premises during the
term of this Lease.
7 COMPLIANCE WITH LAW.
7.1 COMPLIANCE. Lessee shall, at Lessee's sole cost and expense,
comply promptly with all applicable statutes, ordinances, rules, regulations,
laws, orders, restrictions of record, if any, and requirements in effect during
the term, or any part hereof, regulating the use or occupancy by Lessee of the
Premises.
7.2 ETHICS. If Lessee is a member of any profession, he or she
agrees to abide by the code of ethics of the association recognized as
representing that particular profession in the County of Los Angeles, State of
California.
8 LESSOR'S WORK, MAINTENANCE, REPAIRS AND ALTERATIONS.
8.1 LESSOR'S WORK. Upon execution of this Lease, Lessor shall
commence to repaint the premises using building standard materials, more
particularly described on Exhibit "A" hereto.
8.2 LESSEE'S WORK, MAINTENANCE AND REPAIRS. Lessee, during the
term hereof, shall take good care of the Premises and keep the interior thereof
in good order, repair and condition, natural deterioration with careful use and
injury by fire, the elements or acts of God excepted. Lessee shall be
responsible for the maintenance of any type of plumbing, electrical or light
fixtures, heating and air conditioning equipment and any other fixtures and
improvements to the Premises which are not building standard materials, and
shall hold Lessor harmless from any and all liabilities in connection with the
maintenance and operation of such non-building standard materials. Lessee
expressly waives the benefit of any statute now or hereafter in effect which
would otherwise afford Lessee the right to make repairs at Lessor's expense or
the right to make repairs and deduct the expenses of such repairs from the rent.
Lessee shall pay for all cabling, wiring and electrical requirements for
Lessee's computer, telecommunications or any other multi-media systems, as well
as any equipment therefore, including without limitation, any such requirements
and equipment involving the telephone and other utility rooms or vaults at the
Building or serving the Building.
Lessee shall be responsible for the installation, operation and maintenance of
any security systems at the Premises, shall be liable for any expense, penalty
or surcharge resulting from the installation, operation and maintenance of any
such security system and shall hold Lessor harmless from any and all liabilities
in connection therewith. All of Lessee's vendors shall comply with Lessor's
minimum requirements pertaining to general liability and worker's compensation
insurance coverage set forth herein and shall meet all licensing requirements of
the State of California for such vendors. Any such vendors requiring access to
the telephone and other utility rooms or vaults at the Building or serving the
Building must register with Lessor prior to entering such rooms or vaults.
8.3 ALTERATIONS. The Premises shall not be altered, repaired, or
changed without the written consent of Lessor first had and obtained, and all
such alterations, improvements or changes shall be at the sole cost of Lessee,
and Lessee shall hold Lessor and the Premises harmless and free from any lien
or claim therefor, and all other liability, claims, and demands arising out of
any work done or material supplied to the Premises at the instance of Lessee,
and from all actions, suits and costs of suit by any person to enforce any such
lien or claim of lien, liability, claims or demands, together with the cost of
suit and attorney's fees incurred by Lessor in connection therewith.
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8.4 COMPLIANCE. Lessee shall give Lessor not less than twenty (20)
days' notice in writing prior to the commencement of any improvements, repairs
or alterations (collectively, the "Work"), and Lessor shall have the right to
post Notice of Non Responsibility in or on the Premises, as provided by law.
Any and all such Work shall be made in compliance with all applicable zoning and
building codes and shall only be permitted by Lessor provided they do not
diminish the fair market value of the improvements on the Premises. Any and all
such Work requiring governmental approval or permits will have such a permit
issued, at Lessee's sole cost and expense, and Lessee shall provide a copy of
same to Lessor before work commences and a copy of final approval when obtained.
Any and all such Work, except trade fixtures, appliances, and movable partitions
placed therein by Lessee for the requirement of business, shall, unless
otherwise provided by written agreement, become the property of Lessor and shall
remain upon and be surrendered with the Premises upon the expiration of this
Lease or any sooner termination thereof. On completion of any and all such Work
by Lessee, Lessee shall supply Lessor with "as built" drawings accurately
reflecting all such work. Lessee shall pay when due, all claims for labor and
materials furnished or alleged to have been furnished to or for Lessee at or for
use in the Premises, which claims are or may be secured by any mechanics' or
materialmen's lien against the Premises, or any interest therein, and Lessee
agrees to indemnify and hold Lessor and Premises harmless from and against any
and all liability arising out of any such claims.
8.5 REMOVAL. At the expiration of the term of this Lease, and
provided that Lessee is not in default hereunder, all such trade fixtures,
appliances and movable partitions may be removed as Lessee's personal property,
at Lessee's sole expense; provided, however, Lessee will pay for any damages
caused to the Premises by the removal of said items so that after the removal
of said items, the Premises will be in the same condition at the time prior to
the said installations, if any, reasonable wear and tear expected. In any
event, at the sole option of Lessor, Lessee must remove the said items at its
expense. Carpeting, and/or window coverings, for which allowances are given by
Lessor to Lessee, shall become the property of Lessor and remain in the
Premises.
8.6 SCOPE. All of the foregoing provisions of this Article shall
fully apply to any sublessee of Lessee.
9 UTILITIES.
Lessor agrees to supply, 8:00 A.M. to 8:00 PM., Monday through Friday,
reasonable amounts of water, heat, air conditioning and electric current for
lighting purposes and power for a reasonable number of fractional horsepower
office machines, together with reasonable janitorial services five times each
week. Any services mentioned in this Article may be curtailed or restricted by
action of government regulations or authority, and in this event, Lessor will
not be held responsible or liable for any inconvenience or loss to Lessee, and
Lessee does hereby release Lessor from any and all claims of liability by
Lessee, its agents, servants, successors and assigns arising out of any
disruption of utility services, including but not limited to, telephone,
electric, gas, water, cable or telecommunications services. Lessee agrees to
pay a reasonable surcharge for utilities consumed due to Lessee's use of any
dedicated circuits or electric outlets used for any type of computer or
electrical device other than fractional horsepower office machines and PC
computers or other devices used in office operations. In addition, Lessee
agrees to pay a reasonable surcharge for any utilities consumed due to the
installation of any additional air conditioning, heating, electric outlets,
telephone outlets or light fixtures after Lessee has taken initial possession of
the Premises. In addition, Lessee agrees to pay a reasonable surcharge for any
overtime utility or maintenance services requested by Lessee and provided to
Lessee with Lessor's approval. In lieu of levying a surcharge for additional
utility consumption as stated herein, Lessor has the option to require Lessee to
install a meter at Lessee's expense to measure the additional utilities consumed
and to pay for said utilities immediately upon presentation of an invoice
therefore.
10 PERSONAL PROPERTY TAXES.
Lessee shall pay, during the term hereof, all taxes assessed against
the personal property of Lessee; and all taxes assessed against the trade
fixtures or leasehold improvements installed by Lessee in which the Premises
are situated. Should any such taxes be assessed against the Land, the amount
of such taxes shall become a part of the rent due hereunder and shall be
payable upon the first rent due date after demand for payment has been made.
11 COMMON AREAS AND PARKING.
11.1 COMMON AREAS. All areas and facilities outside the Premises
(whether inside or outside the Building) that are provided and designated for
the general use and convenience of Lessee in common with other Lessees of
Lessor, and their respective
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employees, agents, customers and invitees, are referred to herein as the
"common areas". The common areas shall not include any portion of the Premises
or of any portion of the Building or the Land now or hereafter exclusively
leased to other lessees. Common areas include, but are not limited to:
pedestrian sidewalks, landscape areas, roadways, parking areas, and all
entrances and exits to the Building. Lessor reserves the right, from time to
time, to make changes in the size, shape, location, number and extent of the
Land and improvements constituting the common areas, including the right to
change the entrances, exits, traffic lanes and the boundaries and locations of
the parking areas. Lessor hereby grants to Lessee, in common with other
Lessees in the Building the right to use, during normal business hours, the
common areas.
11.2 PARKING. Lessor hereby grants to Lessee, in common with other
Lessees in the Building, the right to use during normal business hours, certain
designated space in the rear, side or on the inside of the Building, or within
a reasonable distance from the Building, the designation and location of such
space to be within the discretion of Lessor, for automobile parking purposes.
Lessee and its designated employees will be limited to a maximum of 21 cars,
parking rates being subject to change by Lessor at any time and being
applicable to Lessees during the term upon thirty (30) days written notice,
Lessor's right to change said rates being limited to once in any one lease
year. Lessor, in establishing such parking rates from time to time, agrees
that such rates shall be competitive with parking rates established in other
parking areas incorporated in buildings of a similar size and character located
in comparable areas. The automobiles entitled to such parking shall be
designated to Lessor by Lessee and shall be identified by Lessor's automobile
permits and only such designated cars will be permitted to the use of such
automobile parking. Additional automobile parking, subject to availability,
shall be extended to Lessee's invitees at reasonable parking rates to be
established by Lessor. Lessor reserves the sole right and option as to whether
or not an attendant will be furnished for such automobile parking area or
areas. Parking will be solely for the accommodation of Lessee and Lessee
expressly agrees that Lessor assumes no responsibility of any kind whatsoever
in reference to such automobile parking areas or the use thereof by Lessee, its
designated employees or invitees. Payment of monthly rent shall entitle Lessee
to park 12 cars each month. The number of car parking set forth herein shall
remain the same throughout the term of this Lease. Lessor may refuse to permit
Lessee to utilize any of the parking to which Lessee may otherwise be entitled
under this Lease if Lessee is in default under this Lease with respect to the
payment of Rent. In such event, Lessor, without obligation and in addition to
any other remedy or right of Lessor hereunder, may require Lessee to pay Lessor
in advance the monthly parking fee then in effect for the number of cars to be
parked by Lessee not to exceed the number of car parking granted herein.
11.3 EXPENSES. Lessee shall also pay to Lessor upon receipt of a
statement therefore, as additional rent, such proportion of the following items
as the area of space rented by Lessee bears to total net rentable area of the
Building: (i) any increase in cost to Lessor of all utilities,
insurance,janitorial and maintenance services, operating expenses over and
above that incurred during the calendar year of the Commencement Date of this
Lease; and (ii) any increase in cost to Lessor due to assessments, taxes or
fees of any type imposed on the Land and/or the Building (including parking
area and structure ancillary thereto, if any), or its use, by any government
agency in excess of those levied against the Land and/or the Building
(including parking area and structure ancillary thereto, if any) for the fiscal
tax year ending June 30 immediately following the commencement date of this
Lease. Notwithstanding the foregoing, in the event any government body or
agency adopts any new or additional tax, fee or surcharge after the
Commencement Date of this Lease affecting the Premises, Building and/or Land,
Lessee agrees to pay its full share as the area of space rented by Lessee bears
to total net rentable area of the Building of any such tax, fee or surcharge so
assessed. Lessor has the right to increase the monthly rent thereafter for any
additional rent due hereunder. Lessee's base year, for the purpose of
calculating the annual common area maintenance passthrough charges, shall be
1997. Not included in the calculation of increased costs herein are management
fees or capitalized expenditures.
12 INDEMNITY.
12.1 INDEMNITY. Lessee shall defend, indemnify and hold harmless
Lessor from and against any and all claims arising from Lessee's use of the
Premises, or from the conduct of Lessee's business, or from any activity, work
or things done, permitted or suffered by Lessee in or about the Premises, and
shall further indemnify and hold Lessor harmless from and against any and all
claims arising from any breach or default in the performance of any obligation
of Lessee's part to be performed under the terms of the Lease, or arising from
any act or negligence of Lessee, or any of Lessee's officers, agents,
contractors, customers, licensees, guests, invitees or employees, and from and
against all costs, attorneys' fees, expenses and liabilities incurred in or
about the defense of any such claim or any action or proceeding brought
thereon. In case any action or proceeding be brought against Lessor by reason
of any such claim, Lessee, upon written notice from Lessor, shall defend the
same at Lessee's expense by counsel reasonably satisfactory to Lessor. Lessee,
as a material part of the consideration to Lessor, hereby assumes all risk to
property or injury to persons in, upon or about the Premises arising from any
cause, and Lessee hereby waives all claims in respect thereof against Lessor
except such claims
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arising out of Lessor's willful act or omission. Lessee shall give prompt
notice to Lessor in case of casualty or accidents in or about the Premises or
common areas.
In the event Lessee fails to indemnify and hold harmless Lessor as
required above, and should Lessor be named as a defendant in any suit brought
against Lessee in connection with or arising out of Lessee's occupancy
hereunder, in addition to other remedies allowed to Lessor under this Lease,
Lessee shall pay to Lessor its costs and expenses incurred in such suit,
including without limitation, its actual fees, professional fees, such as
appraisers, accountants, attorney's fees, and the like, plus interest at the
maximum rate allowed by law from the date such cost was incurred.
12.2 WAIVER. Lessor shall not be liable to Lessee, or to any other
person or persons whomsoever, for any damages to the Premises or for or on
account of any loss, damage, theft, or injury to any person or property in or
about the Premises or approaches or entrances thereto or on the streets,
sidewalks, or corridors of the Building or the common areas or the Land, caused
or occasioned by the Premises being out of repair, by defects (latent or
otherwise) in the Building, common areas, Land or Premises or equipment
contained therein, or by the failure to keep the same in good order and repair
or by fire, gas, water, electricity or by the breaking, overflowing or leaking
of roofs, pipes, or walls of the Building, or for any other damage or injury
caused by acts or events whatsoever beyond the control of Lessor. Lessor shall
not be liable and Lessee hereby waives all claims for damages that may be
caused by Lessor in the entering and taking possession of the Premises as
herein provided.
13 INSURANCE.
13.1 LIABILITY AND PROPERTY DAMAGE INSURANCE. Lessee shall carry
during the term hereof commercial public liability insurance of
$250,000/$500,000 and property damage insurance of $100,000 covering injuries
to persons or property in or about the Premises, the Building, the Land and
common areas. The limit of any such insurance shall not, however, limit the
liability of the Lessee hereunder. Said insurance shall name Lessor as an
additional insured, shall be written by companies satisfactory to Lessor (which
companies shall be authorized to do business in California), shall be issued as
a primary policy, and shall contain an endorsement requiring twenty (20) days'
prior written notice to Lessor before cancellation or change in the coverage,
scope or amount of such policy or policies. Lessee shall provide Lessor with
evidence of such insurance satisfactory to Lessor prior to entry upon the
Premises and thereafter upon Lessor's demand. In the event Lessee fails to
obtain any insurance as provided in this Lease, Lessor may obtain any such
insurance and the cost thereof shall be paid by Lessee as additional rent with
the first payment of rent which is due subsequent to Lessor's incurring such
cost, and Lessor shall have all remedies to collect the same as rent as
provided by this Lease and/or otherwise provided by law for the collection of
rent.
13.2 USE. No use shall be made or permitted to be made on the
Premises, or acts done, which will increase the existing rate of insurance upon
the Building or cause the cancellation of any insurance policy covering the
Building, or any part thereof, nor shall Lessee sell, or permit to be kept,
used or sold, in or about the Premises, any article which may be prohibited by
the standard form of fire insurance policies. Lessee shall, at its sole cost
and expense, comply with any and all requirements, pertaining to the Premises,
of any insurance organization or company, necessary for the maintenance of
reasonable fire and public liability insurance covering the Premises or the
Building. Lessee agrees to pay to Lessor as additional rent, any increase in
premiums on policies which may be carried by Lessor covering damages to the
Building and loss of rent caused by fire and the perils normally included in
extended coverage, which increase is attributable to Lessee's particular use of
the Premises.
14 WAIVER OF SUBROGATION.
Lessee hereby waives as against Lessor, and against the officers,
employees, agents and representatives of Lessor, any and all right to recovery
for any and all losses and damages insured against under any fire and extended
coverage insurance policy, including Lessee's policies described in Article 13,
in force at the time of any such loss or damage or required to be in force at
such time by the terms and conditions of this Lease. Lessee shall, upon
obtaining the policies of insurance required by Article 13, give notice to the
insurance carrier or carriers that the foregoing waiver of subrogation is
contained in this Lease.
15 DAMAGE, DESTRUCTION AND RESTORATION.
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15.1 DAMAGE TO PREMISES. If the Premises shall be so damaged by
fire, other casualty, acts of God or the elements (a "Casualty") so that they
cannot be restored or made suitable for Lessee's business needs within one
hundred eighty (180) business days from the date of the Casualty, either
Lessor or Lessee may terminate this Lease by written notice given to the other
party within forty-five (45) days after the date of the Casualty. If the Lease
is so terminated, the termination shall be effective as of the date of the
Casualty and Rent shall xxxxx from that date, and any Rent paid for any period
beyond such date shall be refunded to Lessee. Notwithstanding any contrary
provision herein, and regardless of whether caused by casualty, (a) Lessor
shall not be required to repair any damage to property with respect to which
Lessee is required herein to maintain property insurance, in which event Lessee
shall promptly repair any damage at its sole cost and expense within the policy
limits of said coverage to the reasonable satisfaction of Lessor; and (b) any
damage caused by the negligence or willful misconduct of Lessee or any of its
agents, contractors, employees, invitees or guests shall be promptly repaired
by Lessee, at its sole cost and expense, to the reasonable satisfaction of
Lessor.
15.2 RESTORATION. If this Lease is not terminated as provided in
the immediately preceding paragraph, then Lessor shall, at its sole cost and
expense, restore the Premises as speedily as practical to the condition
existing prior to the Casualty. During the restoration period, Rent shall
xxxxx for the period during which the Premises are not materially suitable for
Lessee's business needs. If only a portion of the Premises is damaged, Rent
shall xxxxx proportionately based upon the portion of the Premises that are not
materially suitable for Lessee's business needs. There shall be such a rent
abatement only if the damage so repaired is not caused by the negligence or
willful misconduct of Lessee or any of its agents, contractors, employees,
invitees or guests. Except for abatement of rent, if any, Lessee shall have no
claim against Lessor for any damage suffered by reason of (i) any damage to the
Premises, (ii) any damage to Lessee's trade fixtures and/or personal property
located in the Premises; (iii) such repairs, or (iv) any inconvenience,
interruption or annoyance caused by such damage or repair, except to the extent
arising from the gross negligence or willful misconduct of Lessor.
15.3 TERMINATION. If Lessor, subject to Force Majeure, does not
restore the Premises as required herein within one hundred eighty (180)
business days after the date of the Casualty, Lessee may terminate this Lease
without incurring any liability to Lessor subsequent to the Casualty, provided
(i) Lessee gives Lessor not less than forty-five (45) days prior written
notice, and (ii) Lessor does not complete the restoration during such
forty-five (45) day period.
16 ASSIGNMENT, SUBLETTING AND RECAPTURE.
16.1 CONSENT. Lessee shall not transfer, assign, hypothecate or
encumber this lease or any right or interest therein, nor sublet the Premises
or any part thereof, nor permit the use of the Premises, except for Lessee's
own purposes, by any person or persons other than Lessee, without in each case
obtaining the prior written consent of Lessor. Furthermore, this Lease shall
not, nor shall any interest therein, be assignable, as to the interest of
Lessee, by operation of law, without the written consent of Lessor first had
and obtained, (such consent not to be unreasonably withheld). A consent by
Lessor to one assignment, subletting, occupation or use by any other person,
whether by operation of law or otherwise, shall not be deemed to be a consent
to any subsequent assignment subletting, occupation or use by any other person,
nor shall it be deemed as a waiver of the necessity for a consent to any
subsequent assignment, subletting or use by persons other than Lessee. Any
such assignment or subletting, whether by operation of law or otherwise,
without such written consent first had and obtained shall be void, and shall,
at the option of Lessor, terminate this lease. If Lessee desires at any time
to assign or otherwise transfer this Lease, it shall first notify Lessor of its
desire to do so and shall submit in writing to Lessor: (a) the name of the
proposed assignee; (b) the nature of the proposed assignee's business to be
carried on in the Premises; (c) a copy of any agreements to be entered into
concurrently with such assignment; and (d) such financial information as Lessor
may reasonably request concerning the proposed assignee. Lessor hereby
reserves the right to condition any such approval upon Lessor's determination
that the proposed assignee is financially responsible as a Lessee and that the
proposed assignee is likely to conduct a business on the Premises of a type and
quality substantially equal to that conducted by Lessee. Lessee agrees that it
shall be reasonable for Lessor to withhold Lessor's approval of any assignment
or sublease of this Lease if the proposed rent is higher than the amount of
rent that is stated in this Lease or if Lessee is to receive as a condition of
the assignment or Lease any bonus, key money or any other consideration for
said assignment or sublease. Lessee's right to assign or sublet the subject
premises shall not be unreasonably withheld or delayed by Lessor. The
discovery of the fact that any financial statement or any other fact, relied
upon by Lessor in giving its consent to an assignment or subletting was
materially false shall, at Lessor's election, render Lessor's consent null and
void. If Lessor shall consent to any assignment subletting, or use by persons
other than Lessee, neither Lessee or any assignee shall be relieved of any
liability hereunder.
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16.2 DEFAULT. Upon any default by Lessee under this Lease, Lessor
may proceed directly against Lessee, any guarantors or anyone else responsible
for the performance of this Lease, including any assignments, amendments or
modifications thereto, any guarantors or anyone responsible for the performance
of this Lease, including the assignee, without first exhausting Lessor's
remedies against any other person or entity responsible therefore to Lessor, or
any security held by Lessor or Lessee. The collection or acceptance of Rent or
other payment by Lessor from any person other than Lessee shall not be deemed a
waiver of any payment provisions of this Article, the acceptance of any
assignee or sublessee as the Lessee hereunder, or a release of Lessee or any
assignor from any obligation under this Lease. Furthermore, Lessor's
acceptance of rent and/or consent to any assignment of the Premises by Lessee
shall not constitute an acknowledgment that no default then exists under this
Lease of the obligations to be performed by the Lessee, nor shall such consent
be deemed a waiver of any then existing default, except as may be otherwise
provided in writing by the Lessor to the Lessee at that time.
17 HOLDING OVER.
Should Lessee hold over after the termination of this Lease, Lessee
shall become a Lessee from month to month only upon each and all of the terms
herein provided as may be applicable to such month-to-month tenancy (except for
term) and any such holding over shall not constitute an extension of this
Lease. During such period of holding over, Lessee's Rent as set forth in
Article 3.1 of this Lease shall be two hundred percent (200%) of the Rent in
effect immediately prior to such hold over period.
18 DEFAULT AND REMEDIES.
18.1 DEFAULT. The occurrence of any one or more of the following
events shall constitute a material default and breach of this Lease by Lessee:
18.1.1 The vacating or abandonment of the Premises by
Lessee;
18.1.2 The failure by Lessee to make any payment of Rent or
any other payment required to be made by Lessee hereunder, as and when due,
where such failure shall continue for a period of five (5) days after written
notice thereof from Lessor to Lessee.
18.1.3 The failure of Lessee to observe or perform any of
the covenants, conditions or provisions of this Lease to be observed or
performed by Lessee, where such failure shall continue for a period of ten (10)
days after written notice thereof from Lessor to Lessee; provided, however,
that if the nature of the Lessee's default is such that more than ten (10) days
are reasonably required for its cure, then Lessee shall not be deemed to be in
default if Lessee commences such cure within said ten (10) day period and
thereafter diligently pursues such cure to completion;
18.1.4 The making by Lessee of any general assignment for
the benefit of creditors;
18.1.5 The filing by or against Lessee of a petition to have
Lessee adjudged a bankrupt or a petition for reorganization or arrangement
under any law relating to bankruptcy (unless, in the case of a petition filed
against Lessee, the same is dismissed within thirty (30) days);
18.1.6 The appointment of a trustee or receiver to take
possession of all or substantially all of Lessee's assets located at the
Premises or of Lessee's interest in this Lease, where possession is not
restored to Lessee within thirty (30) days; and
18.1.7 The attachment, execution or other judicial seizure
of all or substantially all of Lessee's assets located at the Premises, or of
Lessee's interest in this Lease, where such seizure is not discharged within
thirty (30) days.
18.2 REMEDIES. In the event of any such default or breach by
Lessee, Lessor may at any time thereafter, with or without notice or demand and
without limiting Lessor in the exercise of any right or remedy which Lessor may
have reason of such default or breach:
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18.2.1 Terminate Lessee's right to possession of the
Premises by any lawful means, in which case this Lease shall terminate and
Lessee shall immediately surrender possession the Premises to Lessor. In such
event, Lessor shall be entitled to recover from Lessee all damages incurred by
Lessor by reason of Lessee's default, including but not limited to the cost of
recovering possession of the Premises; expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorneys' fees
and any real estate commission actually paid; and the worth at the time of
award by the court having jurisdiction thereof of (i) the unpaid rent and other
charges and adjustments called for under the Lease which had been earned at the
time of termination, (ii) the amount by which the unpaid rent and other charges
and adjustments called for under the Lease which would have been earned after
termination until the time of award exceeds the amount of such rental loss for
the same period which the Lessee proves could have been reasonably avoided,
(iii) the amount by which the unpaid rent and other charges and adjustments
called for under the Lease for the balance of the term after the time of such
award exceeds the amount of such rental loss for the same period that Lessee
proves could be reasonably avoided, and (iv) any and all costs incurred by
Lessor for the taking of an inventory of, removal of and/or storage of any and
all property left in, upon or about the Premises by Lessee, following Lessee's
abandonment vacating or otherwise surrendering of Premises. The worth at the
time of award of the sums referred to in clauses (i) and (ii) above, shall be
computed by allowing interest from the due date at the highest legal rate
attainable. The worth at the time of award of the amount referred to in clause
(iii) above, shall be computed by discounting such amount at the discount rate
of the Federal Reserve Bank of San Francisco at the time of award plus one
percent (1%). As used herein, rent shall include charges equivalent to Rent
and additional rent;
18.2.2 Maintain Lessee's right to possession, in which case
this Lease shall continue in effect whether or not Lessee shall have abandoned
the Premises. In such event Lessor shall be entitled to enforce all of Lessor's
rights and remedies under this Lease, including the right to recover the rent
and any other charges and adjustments as it becomes due hereunder; and
18.2.3 Pursue any other remedy now or hereafter available to
Lessor under the laws or judicial decisions of the State of California, and
recover as damage the value of any free rent, lessee improvement, or other
Lease concessions which may have been granted to Lessee hereunder prior to any
such default.
19 LATE CHARGES; INTEREST.
19.1 LATE CHARGES. Lessee hereby acknowledges that late payment by
Lessee to Lessor of Rent and other sums due hereunder will cause Lessor to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to
processing and accounting charges, and late charges which may be imposed on
Lessor by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Lessee shall
not be received by Lessor or Lessor's designee within ten (10) days after such
amount shall be due, Lessee shall pay to Lessor a late charge equal to six
percent (6%) of such overdue amount. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the costs Lessor will incur
by reason of late payments by Lessee. Acceptance of such late charge by Lessor
shall in no event constitute a waiver of Lessee's default with respect to such
overdue amount, nor prevent Lessor from exercising any of the other rights and
remedies granted hereunder.
19.2 INTEREST. Unless otherwise specifically provided herein, any
sum payable to Lessor which is not paid when due shall bear interest at the
rate of ten percent (10%) per annum from the date same becomes due until paid.
19.3 PENALTIES. Should Lessee ever during the term of this Lease,
or any extension thereof, tender a check to Lessor which on two (2) or more
occasions is not honored by Lessee's bank, Lessor may (without obligation)
demand that Lessee remit all future payments to Lessor under this Lease in the
form of a cashier's check. Should Lessee's bank ever fail to honor a check by
Lessee, Lessee shall be liable for any bank charges incurred.
20 SAFETY AND HEALTH.
Lessee covenants at all times during the term of this Lease to comply
with the requirements of the Occupational Safety and Health Act of 1970, 29
U.S.C.Section 651 et seq. and any analogous legislation in the State of
California, as they may be amended from time to time, and any successor
statutes thereto, (collectively the "Act"), to the extent that the Act applies
to the Premises and any activities thereon. Lessee agrees to indemnify and
hold Lessor harmless from and against any liability, claim or damages, arising
as a result of a breach of the foregoing covenant and from all costs, expenses
and charges arising therefrom, including without limitation,
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reasonable attorneys' fees and court costs incurred by Lessor in connection
therewith, which indemnity shall survive the expiration or termination of this
Lease.
Lessee further covenants to maintain the Premises in a manner which is
in compliance with the American With Disabilities Act and/or similar state law
at Lessee's sole cost and expense. Lessee agrees to indemnify and hold Lessor
harmless from and against any liability, claim or damages, arising as a result
of a breach of the foregoing covenant and from all costs, expenses and charges
arising therefrom including without limitation, reasonable attorneys' fees and
court costs incurred by Lessor in connection therewith, which indemnity shall
survive the expiration or termination of this Lease.
Lessee, and its agents, servants, partners, officers, directors,
shareholders, employees, occupants, permitted sublessees, invitees, successors
and/or assigns, shall comply with Section 6404.5 of the California Labor Code,
as it may be amended from time to time, and any successor statute thereto, and
any other present or future federal, state and local law, act, ordinance,
regulation or rule prohibiting or limiting the smoking of tobacco products in
enclosed buildings, covered common areas and covered parking areas. In
furtherance of the foregoing, Lessee does hereby release Lessor from liability
for claims by Lessee and/or by its agents, servants, partners, officers,
directors, shareholders, employees, occupants, permitted sublessees, invitees,
successors and/or assigns, arising out of the presence of tobacco smoke in or
about the Premises, the Building, the common areas and the Land.
21 CONDEMNATION; EMINENT DOMAIN.
If there is any taking of, or damage to, all or part of the Premises,
the Building or the Land, or any interest therein, because of the exercise of
the power of eminent domain or inverse condemnation, whether by condemnation
proceedings, or otherwise, or any transfer or any part thereof or any interest
herein made in avoidance thereof (all of the foregoing being hereinafter
referred to as "taking") before or during the term hereof, this lease shall
terminate, at Lessor's option, on the date when Lessor is actually deprived of
possession of the Land, the Building or the Premises, or some part thereof (the
"Termination Date"), and thereupon the parties hereto shall be released from
all further obligations hereunder, and Lessor shall thereupon repay Lessee any
rental theretofore paid by Lessee and unearned at the Termination Date. The
total and entire award or compensation in such proceedings, whether for a total
or partial taking, or for diminution in the value of the leasehold or for the
fee or for any other reason shall belong to, and be the property of, Lessor;
provided, that Lessee shall be entitled to recover from the condemnor such
compensation as may be separately awarded by the condemnor to Lessee or
recoverable from the condemnor by Lessee in its own right for the taking of
trade fixtures and equipment owned by Lessee in its own right (meaning personal
property, whether or not attached to real property, which may be removed
without injury to the Premises) and for the expense of removing and relocating
them, and for the loss of goodwill to the extent that is severally awardable.
Except for any right to recovery by Lessee expressly enumerated herein, Lessee
does hereby waive, renounce and quit claim to Lessor any right in and to any
award, judgment, payment or compensation which shall or may be made or given
because of a taking of the Premises, the Building or the Land.
22 HAZARDOUS MATERIALS.
Lessee shall not (either with or without negligence) cause or permit
the escape, presence, generation, disposal or release of any biologically or
chemically active or other hazardous substances, or materials in or about the
Premises, the Building or the Land (sometimes collectively referred to herein
as the "Property"). Lessee shall not allow the storage or use of such
substances or materials in any manner not sanctioned by law or by the highest
standards prevailing in the industry for the storage and use of such substances
or materials, nor allow to be brought into the Property any such materials or
substances except to use in the ordinary course of Lessee's business, and then
only after written notice is given to Lessor of the identity of such substances
or materials. Without limitation, hazardous substances and materials shall
mean any substance which is toxic, ignitable, reactive, or corrosive and which
is regulated by any local government, the State of California, or the United
States Government, and shall include, without limitation, those described in
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. Article 9601 et seq., the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Article 6901 et seq., any state or local
law applicable to the Property, as they may be amended from time to time, and
any successor statutes thereto, and the regulations adopted under any and all
of these laws.
If any lender or governmental agency shall ever require testing to
ascertain whether or not there has been any release of hazardous materials,
then the reasonable costs thereof shall be reimbursed to Lessor from Lessee
upon demand as additional charges if such requirement applies to the Premises.
Lessee shall execute affidavits, representations and the like from time to time
at Lessor's
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request concerning Lessee's best knowledge and belief regarding the presence of
hazardous substances or materials on the Property. In addition, Lessee shall
undertake to comply with any and all applicable laws, statutes, and ordinances,
concerning hazardous substances and materials to which Lessee, in the course of
its business in the Premises, is subject, and Lessee hereby agrees to
cooperate with Lessor as may be required by Lessor's undertaking to similarly
comply. In all events, Lessee shall indemnify and hold Lessor harmless from
all liability, claims, penalties, fines, judgments, costs, losses, damages and
expenses of any kind, including, without limitation, cleanup costs, a decrease
in value of the Premises, Building and/or Land, damages due to loss or
restriction of rentable or usable space, or any damages due to adverse impact
on marketing of the space, and any and all sums paid for settlement of claims,
consultant fees, expert fees, and reasonable attorney's fees incurred by Lessor
as a result of Lessee's breach regarding hazardous materials on or about the
Property occurring while Lessee is in possession, or elsewhere if caused by
Lessee or persons acting under Lessee. This indemnification includes, without
limitation, any and all costs incurred due to any investigation of the site or
any cleanup, removal or restoration mandated for a federal, state or local
agency or political subdivision. Without limitation to the foregoing, if
Lessee causes or permits the presence of any hazardous substance on the
Property and such results in contamination, Lessee shall promptly, at its sole
expense, take any and all necessary actions to return the Property to the
condition existing prior to the presence of any hazardous substance on the
Property. Lessee shall first obtain Lessor's approval for any such remedial
action. The within covenants shall survive the expiration or earlier
termination of the Lease term.
23 NO ACCORD AND SATISFACTION.
No acceptance by Lessor of a lesser sum than the Rent, additional rent
or any other charge then due shall be deemed to be other than on account of
whichever installment of such rent or charge due as Lessor, at Lessor's sole
discretion, so elects to apply, nor shall any endorsement or statement of any
check or any letter accompanying any check or payment as Rent or other charge
be deemed an accord and satisfaction, and Lessor may accept such check or
payment without prejudice to Lessor's right to recover the balance of such
installment or pursue any other remedy as provided in this Lease.
24 GENERAL PROVISIONS.
24.1 FORCE MAJEURE. If any party hereto shall be delayed or
prevented from the performance of any act required hereunder by reason of acts
of God, strikes, lockouts, labor troubles, inability to procure materials,
restrictive governmental laws or regulations or by other cause without fault
and beyond the control of the party obligated (financial inability excepted),
performance of such act shall be excused for the period of the delay and the
period for the performance of any such act shall be extended for a period
equivalent to the period of such delay; provided, however, nothing in this
Article contained shall excuse Lessee from the prompt payment of any rental or
other charge required of Lessee hereunder except as may be expressly provided
elsewhere in this Lease.
24.2 CUMULATIVE REMEDIES. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
24.3 COVENANTS AND CONDITIONS. Each provision of this Lease
performable by Lessee shall be deemed both a covenant and a condition.
24.4 BINDING EFFECT; CHOICE OF LAW. Subject to any provisions
hereof restricting assignment or subletting by Lessee, this Lease shall bind
the parties, their personal representatives, successors and assigns. This
Lease shall be governed by the laws of the State of California, any action
brought to enforce or nullify this Lease or the provisions hereof must be
brought in Los Angeles County.
24.5 SUBORDINATION; ATTORNMENT.
24.5.1 Lessee hereby agrees, upon Lessor's written request to
subordinate this Lease and Lessee's rights hereunder to any ground sublease,
mortgage, deed of trust, or any other hypothecation of security hereafter
placed upon the Land, and to any and all advances made on the security thereof,
and to all renewals, modifications, consolidations, replacements and extensions
thereof, but such subordination shall be only on the condition that Lessee's
rights to quiet possession of the Premises shall not be disturbed if Lessee is
not in default and so long as Lessee shall pay the rent and observe and perform
all of the provisions of this Lease on Lessee's part to be performed, unless
this Lease is otherwise terminated pursuant to its terms.
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24.5.2 In the event any proceedings are brought for
foreclosure, or in the event of the exercise of the power of sale under any
mortgage or deed of trust made by the Lessor covering the Premises, Land and/or
Building, the Lessee shall attorn to the purchaser upon any such foreclosure or
sale and recognize such purchaser as the Lessor under this Lease.
24.5.3 In connection with this Article, Lessee shall
cooperate with Lessor and any holder of a beneficial interest under a deed of
trust covering any portion of Property. Such cooperation shall include
execution of a Subordination, Non Disturbance and Attornment Agreement in a
form acceptable to Lessor and such lender within ten (10) days from delivery of
same to Lessee. Lessee hereby appoints Lessor to be Lessee's attorney-in-fact
to execute any such Agreement on Lessee's behalf in the event that Lessee fails
to execute any such Agreement in a timely fashion.
24.6 ATTORNEYS' FEES. In the event of any dispute, claim,
arbitration or legal proceeding arising out of or relating to this Lease, the
prevailing party shall be entitled to reimbursement of all of its reasonable
attorneys' fees and costs incurred in connection therewith from the other party
or parties to such a proceeding. Notwithstanding the foregoing and without
waiver of the same, after default by Lessee hereunder, Lessor shall be entitled
to collect all costs of collection, including but not limited to reasonable
attorneys' fees, whether or not suit on this Lease is filed, and all such costs
and expenses shall be payable to Lessor on demand as additional rent within
three (3) days of such demand.
24.7. BUILDING RULES. Lessee hereby promises and agrees to keep and
perform each and all of the rules and regulations of the Building attached
hereto and made a part hereof. Lessor shall have the right to amend said rules
and to make other and different reasonable rules, and regulations limiting,
restricting and regulating the privileges of Lessees in the Building, and all
such rules and regulations so made by Lessor, after notice thereof to Lessee,
shall be binding upon Lessee and become conditions of Lessee's tenancy and
covenants on the part of and to be performed by Less". A copy of Lessor's
current building rules is attached hereto as Exhibit "C."
24.8 MERGER. The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, or a termination by Lessor, shall not
work as a merger.
24.9 ESTOPPEL CERTIFICATE. Lessee shall at any time from time to
time upon not less than ten (10) days prior written notice from Lessor execute,
acknowledge and deliver to Lessor a statement in writing in such form as
Lessor, its lender and/or a potential lender may request certifying that this
Lease is unmodified and in full force and effect (or if modified, stating the
nature of such modification and certifying that this Lease, as so modified, is
in full force and effect) and the dates to which the rental and other charges
are paid in advance, if any, the amount of any security deposit, and
acknowledging that there are not, to Lessee's knowledge, any uncured defaults
on the part of Lessor hereunder, or specifying such defaults if any are
claimed, and setting forth the date of commencement of rents and expiration of
the term hereof. It is expressly understood and agreed that any such statement
may be relied upon by any prospective purchaser or encumbrancer of all or any
portion of the Property. Lessee's failure to deliver such statement within
such time shall be conclusive upon Lessee that: (i) this Lease is in full force
and effect, without modification, except as may be represented by Lessor; (ii)
there are not uncured defaults in Lessor's performance; and (iii) not more than
two (2) months' rental has been paid in advance. Lessee hereby appoints Lessor
to be Lessee's attorney-in-fact to execute any such statement on Lessee's behalf
in the event that Lessee fails to execute any such statement in a timely
fashion. If Lessor desires to finance or refinance the Property, or any part
thereof, then upon compliance by Lessor with the applicable provisions of this
Article, Lessee agrees to deliver to any lender designated by Lessor Lessee's
published financial statements for the immediately preceding two fiscal years
of Lessee.
24.10 SEVERABILITY. The invalidity of any provision of this Lease
as determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision thereof.
24.11 TIME OF ESSENCE. Time is of the essence.
24.12 CAPTIONS. Article and Article captions are not a part thereof
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24.13 INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease made
a part hereof contains all agreements of parties with respect to any matter
mentioned herein. No prior agreement or understanding pertaining to any matter
shall be effective. This Lease may be modified in writing only, signed by the
parties in interest at the time of the modification, it is understood there are
no oral agreements between the parties hereto, or their agents, affecting this
Lease and this Lease supersedes and cancels any and all previous promises,
negotiations, arrangements, brochures, agreements and understandings, if any,
between the parties hereto, and none thereof shall be used to interpret or
construe this Lease.
24.14 NO WAIVER. No waiver of a breach of any covenant or condition
shall be construed to be a waiver of any succeeding breach. No act, delay or
omission done, suffered or permitted by Lessor shall be deemed to exhaust,
waive, limit or impair any right, remedy or power of Lessor hereunder. Lessors
acceptance of rent shall not constitute an acknowledgment that no default then
exists under this Lease of the obligations to be performed by the Lessee or be
deemed a waiver of any then existing default, except as may be otherwise
provided in writing by the Lessor to the Lessee at that time.
24.15 NOTICE. All notices and demands which may or are to be
required or permitted to be given by either party on the other hereunder shall
be in writing and shall be deemed to have been given, if mailed by United
States Mail, postage prepaid, on the date which is three (3) days after the
date posted, or if personally delivered, when delivered to the address shown
below, or to such other places Lessee or Lessor may from time to time designate
in a notice to the other.
24.16 RIGHTS OF LESSOR. Lessor reserves the following rights: (a)
to change the name of the Building without notice or liability to Lessee; (b)
to designate all sources furnishing sign painting or lettering, ice and toilet
supplies used on the Premises; (c) constantly to have pass keys to the
Premises; (d) to grant to anyone the exclusive right to conduct any particular
business or undertaking in the Building; (e) to enter the Premises at any time
for inspections, repairs, alterations or additions to the Premises or the
Building; (f) to exhibit the Premises to others; (g) to affix and display "For
Rent" signs and signs for any purpose whatsoever related to the safety,
protection, preservation or improvement of the Premises, the Building, or
Lessors interest therein, without being deemed guilty of an eviction or
disturbance of Lessee's use and possession and without being liable in any
manner to Lessee on account thereof; (h) at any time, and from time to time,
whether at the instance of Lessor or pursuant to governmental requirements, at
Lessors expense, to make repairs. alterations, additions, improvements or
decorating, whether structural or otherwise, in or to the Building, or any part
thereof, including the Premises. Without limiting the generality of the
foregoing rights, Lessor shall specifically have the right to remove, alter,
improve or rebuild the commons areas, or any part thereof, including but not
limited to the lobby and light court of the Building, as the same is presently
or shall hereafter be constituted. Lessor shall not be liable to Lessee for
any expense, injury, loss or damage resulting from any work so done in or about
the Premises or the Building or any adjacent or nearby building, land, street
or alley, all claims against Lessor for any and all such liability being hereby
expressly released by Lessee. In connection with making repairs, alterations,
decorating, additions or improvements under the terms of this Article, Lessor
shall have the right to access through the Premises as well as the right to
take into and upon and through the Premises, or any other part of the Building,
material that may be required to make such repairs, alterations, decorating,
additions or improvements, as well as the right in the course of such work to
close entrances, doors, corridors, elevators, or other facilities of the
Building or temporarily to xxxxx the operations of such facilities, without
being deemed or held guilty of an eviction of Lessee and without liability for
damages to Lessee's property, business or person and without liability to
Lessee by reason of interference with the business of Lessee or inconvenience
or annoyance to Lessee or the customer of Lessee. The rent reserved herein
shall in no way xxxxx while said repairs, alterations, decorating, additions or
improvements are being made, and Lessee shall not be entitled to maintain any
off-set or counterclaim for damages of any kind against Lessor by reason
thereof, all such claims being hereby expressly released by Lessee. However,
all such work shall be done in such manner as to cause Lessee the least
inconvenience practicable.
24.17 RIGHT OF REPOSSESSION. If in compliance with any law or
ordinance now or hereafter enacted, if required to comply with the directions
or requirements of any public officer board or commission or if because Lessor
requires the Premises for any reason whatsoever, it becomes necessary for
Lessor to acquire permanently all or any part of the Premises, Lessor or its
assigns shall have the right to repossess the Premises, or any portion thereof,
at any time upon thirty (30) days written notice to Lessee; and when said space
shall have been so permanently repossessed, Lessor shall, in lieu of any and
all claims for damages by Lessee, allow Lessee a credit on Lessee's rent in the
proportion that space taken bears to the whole of the Premises; provided,
however, that if the space taken is of such an amount or size as to make the
remaining space undesirable to Lessee, then Lessor, upon thirty (30) days
written notice from Lessee, will endeavor, if available, to furnish Lessee with
comparable space elsewhere the Building in which the Premises are situated, and
to place Lessee in such new space, in which event this Lease and each and all
of the terms, covenants and conditions thereof, shall thereupon remain in full
force and effect and be deemed applicable to such new space; provided further,
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however, that if Lessor shall be unable to provide Lessee with such other
space, then this Lease shall thereupon cease and terminate. No exercise by
Lessor of any right herein reserved shall entitle Lessee to damages for any
injury or inconvenience occasioned thereby, nor shall Lessee by reason thereof
be entitled to an abatement in rent (except as above set forth in case of
taking of space permanently).
24.18 CO-LESSEES. All persons comprising Lessees, together with all
assignees, should Lessor elect to treat said assignees as Lessees, are to be
held and hereby agree to jointly and severally be responsible and liable for
the payment of rent and the faithful and timely fulfillment of all the
covenants, terms and conditions of this Lease.
24.19 GENDER. Whenever the context so requires herein, the
masculine gender herein used shall include the feminine or neuter and the
singular number shall include the plural.
24.20 BUSINESS DAYS. All references to business days herein shall
exclude Saturdays and Sundays but include other legal holidays.
24.21 MEMORANDUM OF LEASE (SHORT FORM). At Lessor's sole option,
Lessor and Lessee will execute and acknowledge in recordable form a Memorandum
of Lease (Short Form) sufficient to give notice of the leasehold estate hereby
created in a form prescribed by Lessor. Said Memorandum of Lease (Short Form)
will not be recorded except by Lessor or with Lessor's consent.
25 SPECIAL CONDITIONS.
25.1 RENTAL CREDIT. Provided that Lessee is not then currently in
default, Lessor agrees that Lessee may deduct from each month's rent which is
paid on or before the 10th day of each calendar month the sum of $500.00 per
month for the months of November, 1997 through March 1998 only.
25.2 TENANT IMPROVEMENT FEE. Upon execution of this lease, Lessee
shall remit to Lessor the sum of $3,000.00 to pay for the tenant improvements as
shown on the attached Exhibit "A".
25.3 CANCELLATION. Provided Lessee is not in default after receipt
of written notice from Lessor of such default allowing ten (10) days to cure
such default, Lessee shall have the right to terminate said lease, effective at
any time between October 31, 1997 through March 31, 1998, provided Lessor is
given at least a prior written ninety (90) day notice of Lessee's intention to
terminate said lease.
25.4 CANCELLATION CREDIT. Provided Lessee does not exercise the
termination of lease option in Paragraph 25.3 herein. Lessee shall receive a one
time rental credit of $4,500.00 to be applied to the April, 1998 monthly rent
only.
25.5 RIGHT TO REDUCE SPACE. Provided Lessee is not in default after
receipt of written notice from Lessor of such default allowing ten (10) days to
cure such default, Lessee shall have the right on April 1, 1998 to reduce the
square footage by one suite as shown on the attached Exhibit "D", provided
Lessor is given at lease a prior written ninety (90) days notice of Lessee's
intention to reduce its space. With regard to said reduction, Lessee's choices
are as follows:
1. Retain Suite 506 only, which consists of approximately 2,476
rentable square feet. The monthly rent shall be reduced to $3,851.00
with seven (7) monthly car parking included and a maximum allowance of
eight (8) monthly car parking.
2. Retain Suite 508 only, which consists of approximately 3,573
rentable square feet. The monthly rent shall be reduced to $5,607.00
with eleven (11) monthly car parking included and a maximum allowance
of thirteen (13) monthly car parking.
25.6 TENANT IMPROVEMENT ALLOWANCE. As of April 1, 1998. Lessor
shall grant to Lessee a tenant improvement allowance of $2.50 per rentable
square foot to be used for building standard tenant improvements only. Said
work must be performed from April 1, 1998 through June 30, 1998 only. Said
allowance will be determined as follows:
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1. $15,122.50 if Lessee does not exercise its right to reduce space.
2. $8,932.50 if Lessee retains Suite 508 only.
3. $6,190.00 if Lessee retains Suite 506 only.
25.7 CONTINGENCIES. This lease is subject to and contingent upon
the following:
1. The execution of this lease and the remittance of a check in the
amount of $22,258.00 delivered to Lessor no later than 5:00 PM
Friday, March 7, 1997.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day
and year first above written.
LESSOR: LESSEE: Voice Powered Technology International
Inc., A California Corporation
XXXXXX X. XXXX BY: XXXXXXXX XXXXX
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XXXXXX X. XXXX Xxxxxxxx Xxxxx, Vice President
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