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EXHIBIT 10.30
SUBLEASE
1. PARTIES.
This Sublease is entered into as of the 19 day of April, 2000, by and
between Attorney's Diversified Services, a California corporation,
Sublessor, and NEWSREAL, INC. d/b/a Yellowbrix, a Delaware corporation,
Sublessee, as a Sublease under the Lease (Master Lease) dated June 25,
1998, l9 ___, entered into by Alta Investors as Lessor (Master Lessor),
and Sublessor under this Sublease as Lessee. A copy of said Master Lease
is attached hereto as Exhibit "A" and incorporated herein by reference.
2. PROVISIONS CONSTITUTING SUBLEASE.
(a) This Sublease is subject to all of the terms and conditions of the
Master Lease in Exhibit "A", except as specifically exempted herein, and
Sublessee shall assume and perform the obligations of Sublessor as Lessee
in said Master Lease, to the extent said terms and conditions are
applicable to the premises subleased pursuant to this Sublease. Sublessee
shall not commit or permit to be committed on the sublease premises any
act or ommission which shall violate any term or condition of the Master
Lease. In the event of the termination of Sublessor's interest as Lessee
under the Master Lease for any reason, then this Sublease shall
terminate coincidently therewith without any liability of Sublessor to
Sublessee. *
(b) All of the terms and conditions contained in the Master Lease in
Exhibit "A" are incorporated herein, except for Paragraph(s) 1, 2, 3, 4,
27 as terms and conditions of this Sublease (with each reference therein
to Lessor and Lessee to be deemed to refer to Sublessor and Sublessee)
and, along with all of the following paragraphs set out in this Sublease,
shall be the complete terms and conditions of this Sublease.
(c) The hereinabove provisions of this Paragraph 2 notwithstanding, it is
expressly understood and agreed that Sublessor is not obligated to
perform the obligations of Master Lessor pursuant to Paragraph(s)
_______________________ of said Master Lease; however, Sublessor agrees
to use its best efforts to cause such obligations to be performed by
Master Lessor and to assign its rights under said Paragraph(s)
_____________________ to Sublessee if such obligations are not so
performed.
* ", provided that Sublessor warrants and represents to Sublessee that
under no circumstances will sublessor cause an early termination of the
Master Lease, either by Sublessor's voluntary action or by its default
under the terms of the Master Lease."
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3. PREMISES.
Sublessor leases to Sublessee and Sublessee hires from Sublessor the
following described premises (Sublease Premises), together with
appurtenances, situated in the City of Xxx Xxxxxxxxx, Xxxxxx xx Xxx
Xxxxxxxxx, Xxxxx xx Xxxxxxxxxx: 5,000 rentable square feet shown
crosshatched in Exhibit B attached, 5th floor, 0000 Xxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx.
4. TERM.
(a) The term of this Sublease shall be for a period of 3 years, 7 1/2
months, commencing on May 15, 2000, xx___ and ending on December 31,
2003, xxx___, unless sooner terminated pursuant to any provision hereof.
(b) Notwithstanding said commencement date, if for any reason Sublessor
cannot deliver possession of the Sublease Premises to Sublessee on said
date, Sublessor shall not be subject to any liability therefore, nor
shall such failure affect the validity of this Sublease or the
obligations of Sublessee hereunder or extend the term hereof, but in such
case Sublessee shall not be obligated to pay rent until possession of the
Sublease Premises is tendered to Sublessee; provided, however, that if
Sublessor shall not have delivered possession of the Sublease Premises
within ninety (90) days from said commencement date, Sublessee may, at
Sublessee's option, by notice in writing to Sublessor within ten (10)
days thereafter, cancel this Sublease. If this Sublease is cancelled as
herein provided, Sublessor shall return any monies previously deposited
by Sublessee and the parties shall be discharged from all obligations
hereunder.
(c) In the event that Sublessor shall permit Sublessee to occupy the
Sublease Premises prior to the commencement date of the term, such
occupancy shall be subject to all of the provisions of this Sublease.
Said early possession shall not advance the termination date of this
Sublease.
5. RENT.
Sublessee shall pay to Sublessor as rent for the Sublease Premises equal
monthly installments of eighteen thousand seven hundred fifty and 00/100
($18,750.00) Dollars, in advance, on the first day of each month of the
term hereof. Sublessee herewith pays Sublessor upon the execution hereof
the sum of one hundred twelve thousand five hundred and 00/100
($112,500.00) Dollars as rent for May 15 throuqh November 15, 2000. Rent
for any period during the term hereof which is for less than one month
shall be a pro rata portion of the monthly installment. Rent shall be
payable without notice or demand and without any deduction, offset, or
abatement in lawful money of the United States to Sublessor at the
address stated herein or to such other persons or at such other places as
Sublessor may designate in writing.
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6. SECURITY DEPOSIT.
In addition to those sums referred to hereinabove, Sublessee hereby pays,
and Sublessor hereby acknowledges receipt from Sublessee of the sum of
fifty six thousand two hundred fifty and 00/100 ($56,250.00) Dollars as
security for the full and faithful performance of Sublessee's obligations
hereunder. In the event Sublessee is not in default fourteen (14) days
after the termination of the herein Sublease term, Sublessor shall
thereupon return said sum to Sublessee, or if this Sublease be sooner
terminated for reason other than default on behalf of Sublessee, said sum
shall be returned upon such termination.
7. USE.
The Sublease Premises shall be used and occupied only for offices and for
no other purpose without the prior written consent of Sublessor.
8. DEFAULT.
Any act or ommission by Sublessee which would constitute a default by the
Lessee in the Master Lease shall constitute a default on the part of
Sublessee hereunder. In the event of any default by Sublessee herein or
under the Master Lease, Sublessor shall have the rights and remedies of
the Master Lessor.
9. HOLD HARMLESS.
Sublessee agrees to hold harmless Sublessor from and indemnify Sublessor
against any and all claims, loss, liability or demand for injury or death
to persons or damage to property occurring in, on or about the Sublease
Premises. Sublessee agrees to name Sublessor as an additional insured on
each policy of insurance which it is required to carry pursuant to this
Sublease or the Master Lease and to deliver a copy thereof to Sublessor
upon request.
10. ASSIGNMENT AND SUBLETTING.
Sublessee shall not assign this Sublease or any interest therein nor
sublet the Sublease Premises or any part thereof or any right or
privilege appurtenant thereto nor permit the occupancy or use of any part
thereof by any person without the written consent of Sublessor first had
and obtained. Any such assignment, further subletting, occupancy or use
without the prior written consent of the Sublessor shall at the option of
the Sublessor terminate this Sublease and any such purported assignment,
sublease, occupancy or use shall be null and void.
11. ATTORNEY'S FEES.
In the event suit is brought by either party because of the breach of
this Sublease, or for the construction thereof, the prevailing party
shall be entitled to reasonable attorney's fees.
12. NOTICES.
Any and all notices required herein shall be in writing and shall be
either delivered personally or sent by registered or certified mail,
postage prepaid, addressed as follows:
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If to Sublessor: If to Sublessee:
ADS Nationwide Yellowbrix,
0000 00xx Xxxxxx 00 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
or at such other address as a party may designate in writing, Sublessor shall,
immediately upon receipt, give copies to Sublessee of any notices received by
Sublessor pursuant to said Master Lease.
Paragraphs 13-18 are inc1uded in this Sublease Document.
NEWSREAL, INC. d/b/a
SUBLESSOR: Attorney's Diversified Services SUBLESSEE Yellowbrix
/s/ XXXXX XXXXXXXXX
------------------------------ -----------------------------
------------------------------ -----------------------------
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Paragraphs 13 through 18 to be made a part of Sublease of 5,000 Rentable Square
Feet of space on the fifth floor, with Attorney's Diversified Services as
Sublessor, at 0000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx dated April 19,
2000.
13. Up to 5 parking spaces shall be made available to Sublessee by Sublessor at
the rate of $125/month apiece.
14. Sublessee shall carry the same amounts of insurance as specified in
paragraph 7 of the Masterlease.
15. The Sublessee shall pay 4% of any increase in the property tax over the base
year which shall be year 2000, as outlined in paragraph 9 of the
Masterlease.
16. The Sublessee shall pay 4% of the increase in water, insurance and common
area janitorial and elevator maintenance costs over the base year which
shall be the year 2000, as outlined in paragraph 24 of the Masterlease.
17. Sublessee and Sublessor shall mutually agree on the division of utility cost
depending on useage and power of equipment and usage of HVAC, as outlined
in paragraph 24 of the Masterlease.
18. Sublessee must obtain approval from both Sublessor and Landlord (Alta
Investors) before making alterations to premises per paragraph 6d of
Masterlease. Sublessor will not unreasonably withhold its consent to
same.. **
APPROVED BY
Sublessee
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Sublessor
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l479.prp
** "Sublessor does hereby agree and acknowledge that Sublessee intends
immediately construct a ceiling height wall within the Sublease Premises (for
demarcation of sublet space and Sublessee's security) across the hallway between
Classroom #509 and the perimeter classrooms-See Exhibit ??. Said perimeter
classrooms (2) will remain in Sublessor's possession (alo?? with the Phone
Room). Sublessee will, however, have ready access to the Storage Room which is
agreed to be included within the Sublease Premises Sublessor also hereby agrees
to provide Sublessee reasonable access to the Phone Room as necessary for
maintenance of Sublessee's communication facilities."
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LEASE
This Lease is entered into as of the 25 day of June, 1998, by and between
ALTA INVESTORS (the "Landlord") and ATTORNEY'S DIVERSIFIED SERVICES, a
California corporation, (the "Tenant").
1. PREMISES. Landlord hereby Leases to the Tenant and Tenant hires from
the Landlord for the term of this Lease and at the rental and upon the
conditions set forth below the real property situated in the City of Xxx
Xxxxxxxxx, Xxxxxx xx Xxx Xxxxxxxxx, Xxxxx xx Xxxxxxxxxx, commonly known as 0000
Xxxxxxx Xxxxxx and described as Suite 510, approximately 7,672 square feet on
the southeasterly portion of the fifth floor. The demised space is referred to
below as the "Premises" and the real property and improvements in which the
Premises are located are referred to as the "Building". Conference room shall be
available to the Tenant at no additional cost based upon a sign-up sheet kept in
said room. Break room shall be available for the Tenant's non-exclusive use at
all times.
2. TERM. The term of this Lease shall be for 60 months commencing no
later than January 1, 1999, and ending no later than December 31, 2003, unless
sooner terminated as provided herein. If the Landlord cannot, for any reason,
deliver possession of the Premises to Tenant at the commencement of the term,
Landlord shall have no liability on account thereof, nor shall this Lease be
terminated, except that Tenant may terminate Lease by written notice given to
Landlord if Landlord does not deliver possession of the Premises to Tenant
within 30 days of the beginning of the term.
Tenant shall not be obligated to pay rent until possession of the
Premises is delivered to Tenant. The term of this Lease shall not be extended
due to any failure to deliver possession of the Premises at the commencement of
the term. If the Landlord shall permit Tenant to occupy the Premises prior to
commencement of the term, such occupancy shall be subject to the provisions of
this Lease.
3. RENT.
a. Tenant shall pay to Landlord as rent the sum of _________ Dollars
($ (rent) plus (parking)) per month, which sum is subject to possible adjustment
as provided in subparagraph (b), below. All rent shall be payable in lawful
money of the United States on or before the first day of each calendar month of
the term, without demand therefore or any deduction offset, at the offices of
Landlord located at c/o Sankowich Properties, 0000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxx Xxxxxxxxx, XX 00000 or such other place as the Landlord may direct by
written notice given to Tenant. Rent for the first month or portion of it shall
be paid on the date the term commences. Rent for any partial month shall be
prorated at the rate of 1/30th of the monthly rent per day.
b. The monthly rent provided for in subparagraph (a) above, shall be
subject to increase at the commencement of the 2nd year of the term* and every
_____ year thereafter ("the adjustment date") by the percentage by which the
Consumer Price Index for All Urban Consumers-San Francisco-Oakland-metropolitan
area (1967-100) may have increased from its level at the commencement of the
term to its level at the adjustment date. If the foregoing Index is changed or
discontinued, such other index or computation with which it is replaced shall be
used in order to obtain substantially the same result as would be obtained if
the Index had not been discontinued or revised. In no case shall the rent be
less than that set forth in subparagraph (a) above.
c. Tenant shall pay fourth month's rent upon lease execution.
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4. SECURITY DEPOSIT. On execution of this Lease Tenant shall deposit the
sum of ______________ Dollars ($_______) with Landlord as a security deposit as
are reasonably necessary for the performance by Tenant of the provisions of this
Lease. The Landlord may claim of the security deposit such amounts as are
reasonably necessary to remedy any defaults by the Tenant in the payment of
rent, to repair damages to the Premises caused by the Tenant and to clean the
Premises when they are vacated. Tenant shall immediately upon demand pay to
Landlord a sum equal to the portion of the security deposit expended or applied
by Landlord as herein provided so as to maintain the security deposit in the
amount initially deposited with Landlord. If Tenant is not in default hereunder
at the expiration or termination of this Lease, Landlord shall return the then
remaining portion of the security deposit to Tenant. Landlord shall not be
required to pay interest on the security deposit to Tenant. In the event that
Landlord conveys the Premises to another person the Landlord shall transfer the
portion of the security deposit then remaining after any deductions provided for
herein to the Landlord's successor in interest and thereafter notify Tenant by
certified mail of such transfer, of any claims made against the security deposit
and of the transferee's name and address.
5. USE OF PREMISES. The Premises shall be used and occupied by Tenant
solely for the purpose of offices, copy/duplicating facility, and for no other
purpose. Tenant shall, at Tenant's expense, comply promptly with all applicable
statutes, ordinances, rules, regulations, orders and requirements in effect
during the term regulating the use by Tenant of the Premises. Tenant shall not
use or permit the use of the Premises in any manner that will tend to create
waste or nuisance or which shall tend unreasonably to disturb other Tenants of
the Building. Notwithstanding any other provision of this Lease, the Tenant
shall not use, keep or permit to be used or kept on the Premises any foul or
noxious gas or substance, nor shall Tenant do or permit to be done anything in
and about the premises, either in connection with activities hereunder
expressly permitted or otherwise, which would cause a cancellation of any
policy of insurance (including fire insurance) maintained by Landlord in
connection with the Premises or the Building. Tenant shall forthwith pay to
Landlord upon demand therefore the amount of any additional insurance premium
assessed to the Landlord on account of activities of Tenant whether or not they
are permitted by this Lease. Tenant shall faithfully observe and comply with
the rules and regulations that Landlord shall from time to time promulgate
respecting use and occupancy of the Building. Such rules and regulations shall
be binding upon Tenant upon delivery of a copy of them to the Tenant. Landlord
shall not be responsible to Tenant for the breach thereof by any other Tenants
or occupants.
6. MAINTENANCE, REPAIRS AND ALTERATIONS.
a. Subject to the provisions of paragraph 8 below, and except for
damage caused by the Tenant, its agents or invitees, the Landlord shall keep in
good condition and repair the foundations and exterior walls and roof of the
Building. Unless otherwise agreed in writing, Landlord shall not be obligated to
paint the exterior of the Building nor shall Landlord be obligated to make any
repairs under this subparagraph until a reasonable time after receipt of written
notice of the need for such repairs.
b. Tenant expressly waives the benefits of any statute now or
hereafter in effect which would otherwise afford Tenant the right to make
repairs at Landlord's expense or to terminate this Lease because of Landlord's
failure to keep the Premises in good order, condition and repair.
c. Tenant shall at Tenant's expense maintain the interior portion of
the Premises (including, but not limited to, all plumbing and electrical
connections, outlets and lightbulbs) in good condition and repair. If Tenant
fails to do so the Landlord may, but shall not be required to, enter the
Premises and put them in good condition and the Landlord's costs thereof shall
automatically become due and payable as additional rent together with the next
regular rental payment. At the expiration of the term Tenant shall deliver up
possession of the Premises in good condition and repair. Only ordinary wear and
tear expected.
d. Tenant shall not, without Landlord's prior written consent, make
any alterations, improvements or additions in or about the Premises. As a
condition to giving such consent, Landlord may require that Tenant remove any
such alterations, improvements or additions at the expiration of the term, and
to restore the Premises to their prior condition before commencing any work
relating to alterations, additions or improvements affecting the Premises.
Tenant shall notify Landlord in writing of the expected date of commencement
thereof. Landlord shall then have the right at any time and from time to time to
post and maintain on the Premises such notices as Landlord reasonably deems
necessary to protect the Premises and Landlord from mechanics' liens, material
men's liens or any other liens. In any event, Tenant shall pay, when due, all
claims for labor or materials furnished to or for Tenant at or for use in the
Premises. Tenant shall not permit any mechanics' or materials men's liens to be
levied against the Premises for any labor or material furnished to Tenant or
claimed to have been furnished to Tenant or to Tenant's agents or contractors in
connection with work of any character performed or claimed to have been
performed on the Premises by or at the direction of Tenant. Unless Landlord
requires their removal, as set forth above, all alterations, improvements or
additions which may be made on the Premises shall become the property of
Landlord and remain upon and be surrendered with the Premises at the expiration
of the term; provided however, the Tenant's machinery, equipment and trade
fixtures, other than any which may be affixed to the Premises so that they
cannot be removed without material damage to the Premises, shall remain the
property of Tenant and may be removed by Tenant.
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7. INSURANCE AND INDEMNITY.
a. The Tenant shall obtain and keep in force during the term
of this Lease a policy of comprehensive public liability insurance insuring
Landlord and Tenant against any liability arising out of the ownership, use,
occupancy or maintenance of the Premises and all areas appurtenant thereto. Such
insurance shall be in an amount of not less than $ 1,000,000 for injury to or
death of one person in any one accident or occurrence and in an amount of not
less than $ 2,000,000 for injury to or death of more than one person in any one
accident or occurrence. In addition, Tenant shall maintain property damage
insurance in an amount not less than $ 1,000,000. Landlord shall be included as
a named insured in each such policy of insurance and a certificate or
certificates evidencing coverage in accordance with the terms and provisions
hereof shall be delivered to Landlord, which certificate or certificates shall
provide that Landlord shall be given at least ten (10) days' written notice
prior to any change in or cancellation of the Tenant's insurance policy. If
Tenant fails or refuses to procure or to maintain the insurance coverage
required hereunder, or fails or refuses to furnish Landlord with proof that said
coverage has been procured and is in force and paid for, Landlord shall the
right, at Landlord's election and without notice to Tenant, but without any
obligation so to do, to procure and maintain such coverage. Tenant shall
reimburse Landlord on demand for any premiums Landlord so pays. Each policy of
insurance maintained by the Tenant hereunder shall provide the insurer waives
all rights of subrogation with respect to damage or loss covered by such policy.
b. Tenant shall indemnify, defend and hold Landlord harmless
from any and all claims arising from Tenant's use of the Premises or from the
conduct of its business or from any activity, work or thing which may be
permitted or suffered by Tenant in or about the Premises and shall further
indemnify, defend and hold Landlord harmless from any and all claims arising
from any breach or default in the performance of any obligation on Tenant's part
to be performed under the provisions of this Lease or arising from any
negligence of Tenant or any of its agents, contractors, employees or invitees
and from any and all costs, attorney's fees, expenses and liabilities incurred
in the defense of any claim or any action or proceeding brought thereon,
including negotiations in connection therewith. Tenant hereby assumes all risk
of damage to property or injury to persons in or about the Premises from any
cause, and Tenant hereby waives all claims in respect thereof against Landlord,
excepting where said damage arises out of the sole fault of Landlord.
c. Tenant hereby agrees that Landlord shall not be liable for
injury to Tenant's business or any loss of income therefrom or for damage to the
goods, wares, merchandise or other property of Tenant, Tenant's employees,
invitees, customers, or any other person in or about the Premises; nor, unless
through its sole fault, shall Landlord be liable for injury to the person of
Tenant, Tenant's employees, agents or contractors and invitees, whether such
damage or injury is caused by or results from fire, steam, electricity, gas,
water or rain, or from the breakage, leakage, obstruction or other defects of
pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures, or from any other cause, whether the said damage or injury results
from conditions arising upon the Premises or upon other portions of the
Building, or from other sources or places, and regardless of whether the cause
of such damage or injury or the means of repairing the same is inaccessible to
Landlord or Tenant. Landlord shall not be liable for any damages arising form
any act or neglect of any other Tenant, if any, of the Building.
8. DAMAGE OR DESTRUCTION.
a. If during the term of this Lease the Premises are totally
or partially destroyed, or any other portion of the Building is damaged in such
a way that Tenant's use of the Premises is materially interfered with, from a
risk which is wholly covered by insurance, Landlord shall proceed with
reasonable diligence to repair the damage or destruction and the Lease shall not
be terminated; provided, however, that if in the opinion of the Landlord's
architect the work of repair cannot be completed in ninety (90) days the
Landlord may at its election terminate the Lease upon written notice given to
Tenant.
b. If during term of this Lease the Premises or the Building
are totally or partially destroyed from a risk which is not wholly covered by
insurance, Landlord may at its election restore the Premises or terminate the
Lease.
c. In case of destruction or damage which materially
interferes with the Tenant's use of the Premises, where the Lease is not
terminated as above provided, rent shall be abated during the period required
for the work of repair based upon the degree of interference with Tenant's use
of the Premises. Except for abatement of rent, Tenant shall have no claim
against Landlord for any loss suffered by Tenant due to damage or destruction of
the Premises or any work of repair undertaken as herein provided. Tenant
expressly waives the provision of Section 1932 and Section 1933 (4) of the
California Civil Code. Lease term shall be increased the length of abatement
period to total a term of 60 months.
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9. REAL PROPERTY TAXES. In addition to the rent herein provided,
Tenant shall pay to Landlord as Tenant's share of the real property taxes
assessed in respect of the Building six percent (6%) of any increase in
Landlord's real property taxes in respect thereof in each year of the Lease term
over the Landlord's real property taxes in the first year of the Lease term.
Said increase shall be payable whether the increase results from an increased
rate and/or an increased valuation of the Building from any cause whatsoever.
Landlord shall provide a copy of the tax xxxx and a statement of the Tenant's
share thereof in accordance with this paragraph 9 and within ten (10) days of
receipt of the same Tenant shall pay to Landlord the amount set forth in such
statement. "Real property taxes" shall for purposes of the foregoing provision
mean any form of general or special assessment, levy or tax imposed against any
legal or equitable interest of Landlord in the Building or any tax imposed in
substitution in whole or in part for a tax previously included within the
definition of real property taxes including any capital asset tax or tax on
rents.
10. PERSONAL PROPERTY TAXES.
a. Tenant shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment and all other
personal property of Tenant contained in the Premises or elsewhere. Tenant
shall cause said trade fixtures, furnishings, equipment and all other personal
property to be assessed and build separately from the real property of Landlord.
b. If any of Tenant's said personal property shall be assessed
with Landlord's real property, Tenant shall pay Landlord the taxes attributable
to Tenant within ten (10) days after receipt of a written statement setting
forth the taxes applicable to Tenant's property.
c. Notwithstanding the provisions of paragraph 9 above, Tenant
shall pay the total amount of any increase in "real property taxes" resulting
from any and all improvements of any kind whatsoever placed on or in the
Premises or the Building for the benefit of or at the request of Tenant
regardless of whether said improvements were installed or constructed either by
Landlord or Tenant, except those items included with the original Premises.
11. UTILITIES AND SERVICES. Provided that Tenant shall not be in
default hereunder, Landlord agrees to furnish to the Premises the following
utilities and services:
a. Heat required in Landlord's judgement for the normal use of
the Premises. Landlord shall not be required to provide heat on Saturdays,
Sundays or holidays.
b. Electricity suitable for the intended use of the Premises. If
Tenant shall require electric current in excess of Tenant's requirements as of
the commencement of the Lease term Tenant shall pay for the cost of installing
wiring and the additional cost for such excess current as determined by
Landlord. In the event an electric current meter is installed to measure
the amount of excess current, Tenant agrees to pay the cost such meter and of
installation, maintenance and repair thereof.
d. Nonattended automatic elevator service. The foregoing
services and utilities shall be provided in an amount and at such times
customarily used in similar type office Buildings in the geographical area in
which the Landlord competes. The interruption or curtailment of any such
services caused by any event beyond the control of Landlord, including repairs,
renewals, improvements, alterations, strikes, lock outs, accidents, inability
to obtain fuel or supplies, or voluntary or involuntary governmental regulation
shall not constitute an eviction or disturbance of Tenant's use of the Premises
and shall not entitle Tenant to abatement of rent or to any other claim against
Landlord.
12. ASSIGNMENT AND SUBLETTING.
a. Tenant shall not voluntarily or by operation of law assign,
transfer, mortgage, sublet, or otherwise transfer or encumber all or any part
of Tenant's interest in this Lease or in the Premises without Landlord's prior
written consent, which Landlord shall not unreasonably withhold. Any attempted
assignment, transfer, mortgage, encumbrance, or subletting without such consent
shall be void and shall constitute a breach of the Lease. Any transfer of
Tenant's interest in this Lease or in the Premises from Tenant by merger,
consolidation, or liquidation, or by any subsequent change in the ownership of
thirty percent (30%) or more of the capital stock of Tenant shall be deemed a
prohibited assignment within the meaning of this provision.
b. Tenant agrees to pay all costs and expenses, including
reasonable attorneys' fees incurred by Landlord in connection with Landlord's
review of any proposed assignment, subletting, encumbrance or other transfer.
c. Regardless of Landlord's consent, no subletting or assignment
shall release Tenant of Tenant's obligation to pay the rent and to perform all
other obligations to be performed by Tenant hereunder for the term of this
Lease. The acceptance of rent by Landlord from any other person shall not be
deemed to be a waiver by Landlord of any provision hereof. Consent to one
assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting.
13. TENANT'S DEFAULT AND REMEDIES.
a. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant:
i. The vacating or abandonment of the Premises by Tenant.
ii. The failure by Tenant to make any payment of rent or any
other payment required to be made by Tenant hereunder,
as and when due.
iii. The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be
observed or performed by Tenant other than described
Subparagraph (ii) above, where such failure shall
continue for a period of thirty (30) days after written
notice thereof from Landlord to Tenant; provided,
however, that if the nature of Tenant's default is such
that more than thirty (30) days are reasonably required
for its cure, then Tenant shall not be deemed to be in
default if Tenant commences such cure within said thirty
(30) day period and thereafter diligently prosecutes such
cure to completion.
iv. The making by Tenant of any general assignment, or
general arrangement for the benefit of creditors; the
filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy
(unless, in the case of a petition filed against Tenant,
the same is dismissed within sixty (60) days; the
appointment of a trustee or a receiver to take possession
substantially all of Tenant's assets or of Tenant's
interest in this Lease, where possession is not restored
to Tenant within thirty (30) days; or the attachment,
execution or other judicial seizure of substantially all
of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not
discharged within thirty (30) days.
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b. In the event of any such default or breach by Tenant, Landlord
may at any time thereafter, with or without notice of demand and without
limiting Landlord in the exercise of any other right or remedy which Landlord
may have by reason of such default or breach, terminate this Lease and all
rights of Tenant hereunder by giving Tenant written notice of such termination.
If Landlord so terminates this Lease, then Landlord may recover from Tenant sum
of:
i. the worth at the time of award of any unpaid rent which had
earned at the time of termination;
ii. the worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination
until the time of award exceeds the amount of such rental
loss that the Tenant proves could have been reasonably
avoided;
iii. the worth at the time of award of the amount by which the
unpaid rent for the balance of the term after the time of
award exceeds the amount of such rental loss that the
Tenant proves could be reasonably avoided;
iv. any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to
perform Tenant's obligations hereunder or which, in the
ordinary course of things, would be likely to result
therefrom, including leasing commissions and Tenant
improvement expenses incurred in reletting the Premises; and
v. all such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time by
applicable California law.
As used in subparagraph (b)(i) and (b)(ii) above, the "worth at the
time of award" is computed by allowing interest at the rate of ten percent (10%)
per a annum. As used in subparagraph (b)(iii) above, the "worth at the time of
award" is 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 in this paragraph the term "rent" shall include both charges
equivalent to rent and any other periodic payments to be made by Tenant
hereunder, including Tenant's share of real property tax increases.
c. If Tenant vacates, abandons or surrenders the Premises without
Landlord's consent, or if Landlord re-enters the Premises as provided below or
takes possession of the Premises pursuant to legal proceedings, then, if
Landlord does not elect to terminate this Lease, Landlord may, from time to time
either recover all rent and other amounts payable hereunder as they become due
or relet the Premises or any part thereof on behalf of the Tenant for such term,
at such rent and pursuant to such other provisions as Landlord in its sole
discretion may deem advisable.
d. Upon an Event of Default, Landlord shall also have the right,
with or without terminating this Lease, to re-enter the Premises and remove all
persons and property therefrom. Landlord may cause property so removed from the
Premises to be stored in a public warehouse or elsewhere at the expense and for
the account of the Tenant.
e. Non of the following remedial actions, singly or in combination,
shall be construed as an election by Landlord to terminate this Lease unless
Landlord has in fact given Tenant written notice that this Lease is terminated
or unless a court of competent jurisdiction decrees termination of this Lease:
any act by Landlord to maintain or preserve the Premises; any efforts by
Landlord to relet the Premises; any re-entry, repossession or reletting of the
Premises by Landlord pursuant to the foregoing provisions; or the appointment of
a receiver, upon the initiative of Landlord to protect Landlord's interest under
this Lease.
14. DEFAULT BY LANDLORD. Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord hereunder within a reasonable
time, but in no event later than thirty (30) days after written notice by Tenant
to Landlord specifying wherein Landlord has failed to perform such obligations;
provided, however, that if the nature of Landlord's obligation is such that more
than thirty (30) days are required for performance then Landlord shall not be in
default if Landlord commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion.
15. CONDEMNATION.
a. For purposes of this paragraph 15:
i. "Condemnation" means (a) the exercise of any governmental
power, whether by legal proceedings or otherwise, by a
condemnor and (b) a voluntary sale or transfer by Landlord
to any condemnor, either under threat of condemnation or
while legal proceedings for condemnation are pending.
ii. "Date of taking" means the date the condemnor has the right
to possession of the property being condemned.
iii. "Award" means all compensation, sums, or anything of value
awarded, paid, or received on a total or partial
condemnation.
iv. "Condemnor" means any public or quasi-public authority, or
private corporation or, individual, having the power of
condemnation.
b. If during the term the Building is totally taken by condemnation,
this Lease shall terminate on the date of taking.
c. If a portion of the Building is taken by condemnation, this Lease
shall remain in full force and effect, except that if twenty-five
percent (25%) or more of the Building is taken Landlord may
terminate this Lease upon thirty (30) days written notice to
Tenant.
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d. If during the term any portion of the Premises are taken by
condemnation, this Lease shall remain in effect except that Tenant may elect to
terminate the Lease if such taking renders the Premises unsuitable for the
Tenant's continued use and occupation. If Tenant elects to terminate the Lease
pursuant to this provision, Tenant must do so by written notice given to the
Landlord no later than thirty (30) days after the taking. If Tenant does not
terminate the Lease within such period, the Lease shall continue in full force
and effect, subject to abatement of rent as provided below.
e. If any portion of the Premises is taken by condemnation and
this Lease is not terminated, on the date of taking the monthly rental otherwise
payable hereunder shall be reduced in proportion to the interference, if any,
with Tenant's use and occupation of the Premises prior to the taking caused
thereby.
f. The award shall belong to and be paid over to the Landlord.
Tenant waives any interest therein based upon the value of its leasehold
interest hereunder, excepting any claim Tenant may have against the condemnor
only for Tenant's moving expenses.
16. NOTICES. Any notice to be given by either party shall be in
writing and shall be either personally delivered or mailed by certified mail,
postage prepaid, to the Landlord at the office where rent is payable as provided
above and to the Tenant at the Premises.
17. ESTOPPEL CERTIFICATE
a. Tenant shall at any time upon not less than five (5) days'
prior written notice from Landlord execute, acknowledge and deliver to Landlord
a statement in writing (i) 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
date to which the rent, security deposit, and other charges are paid in advance,
if any and (ii) acknowledging that there are not, to Tenant's knowledge, any
uncured defaults of the part of Landlord hereunder, or specifying such defaults,
if any which are claimed. Any such statement may be conclusively relied upon by
any prospective purchaser or encumbrancer of the Premises.
b. Tenant's failure to deliver such statement within such time
shall be conclusive upon Tenant (i) that this Lease is in full force and effect,
without modification except as may be represented by Landlord, (ii) that there
are not uncured defaults in Landlord's performance, and (iii) that not more than
one (1) month's rent has been paid in advance.
c. If Landlord desires to finance or refinance the Premises or
the whole or a portion of the Building, Tenant hereby agrees to deliver to any
lender designated by Landlord such financial statements of Tenant as may be
reasonably required by such lender. All such financial statements shall be
received by Landlord in confidence and shall be used for the purposes herein set
forth.
18. SUBORDINATION.
a. This lease, at Landlord's option, shall be subordinate to any
ground Lease, mortgage, deed of trust, or any other hypothecation for security
now or hereafter placed upon the real property of which the Premises are a part
and to any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Tenant's right to quiet possession of the
Premises shall not be disturbed if Tenant is not in default and so long as
Tenant shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee or ground lessor shall elect to have this Lease prior to the
lien of its mortgage, deed of trust or ground lease, and shall give written
notice thereof to Tenant, this Lease shall be deemed prior to such mortagage,
deed of trust or ground lease, whether this Lease is dated prior or subsequent
to the date of said mortgage, deed of trust or ground lease or the date of
recording thereof.
b. Tenant agrees to execute any documents required to effectuate
such subordination or to make this Lease prior to the lien of any mortgage, deed
of trust or ground lease, as the case may be, and failing to do so within ten
(10) days after written demand does hereby make, constitute and irrevocably
appoint Landlord as the Tenant's attorney in fact and in Tenant's name, place
and stead, to do so.
19. ATTORNEYS' FEES. If legal action is taken to interpret or enforce
any provision of this Lease or on account of a breach thereof, the prevailing
party shall be entitled, in addition to any other remedy available in law or
equity, to recover its reasonable attorneys' fees actually incurred in
connection therewith or in connection with negotiations prior thereto.
20. GENERAL PROVISIONS.
a. This Lease shall be governed by and construed in accordance
with the laws of the State of California.
b. This 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 hereof.
c. This Lease contains all agreement of the parties with respect
to any matter mentioned herein. This Lease may be modified in writing only
signed by the parties.
d. No waiver by Landlord of any provision hereof shall be deemed
a waiver of any other provision hereof or of any subsequent breach by Tenant of
the same or any other provision. Landlord's consent to or approval of any act
shall not be deemed to render unnecessary the obtaining of Landlord's consent to
or approval of any subsequent act by Tenant. The acceptance of rent hereunder by
Landlord shall not be a waiver of any preceding breach by Tenant of any
provision hereof other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent.
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e. Tenant shall not record this Lease. Any such recordation shall
be a breach thereof.
f. If Tenant remains in possession of the Premises or any part
thereof after the expiration of the term hereof with the consent of Landlord,
such occupancy shall be a tenancy from month to month at a rental in the amount
of the last month's rental during the term plus all other charges payable
hereunder, and upon all the terms hereof.
g. No remedy or election hereunder shall be deemed exclusive,
but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
h. Each provision of this Lease performable by Tenant shall be
deemed both a covenant and a condition.
i. Subject to the provisions of this Lease restricting
assignment or subletting by Tenant, this Lease shall bind the parties, their
personal representatives, successors and assigns.
j. Landlord and Landlord's agents shall have the right to enter
the Premises at reasonable time for the purpose of inspecting the same, showing
the same to prospective purchasers, or lenders, and making such alterations,
repairs, improvements or additions to the Premises or to the Building of which
they are a part as Landlord may deem necessary or desirable. Landlord may at any
time place on or about the Premises any ordinary "For Sale" signs and Landlord
may at any time during the last one hundred twenty (120) days of the term hereof
place on or about the Premises any ordinary "For Sale or Lease" signs, all
without rebate or rent or liability to Tenant.
k. Tenant shall not conduct any auction at the Premises, without
Landlord's prior written consent.
l. The voluntary or other surrender of this Lease by Tenant, or
mutual cancellation thereof, shall not work a merger, and shall at the option of
Landlord terminate all or any existing subtenancies or may, at the option of
Landlord, operate as an assignment to Landlord of any or all of such
subtenancies.
m. If Tenant is a corporation, each individual executing this
Lease on behalf of said corporation represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of said corporation in
accordance with a duly adopted resolution of the Board of Directors and that
this Lease is binding upon said corporation in accordance with its terms.
n. The term "Landlord" as used herein means the owner of the
Building for the time being only in the event of a sale of such Building
Landlord shall be automatically relieved of all obligations of Landlord
hereunder, except for acts or omissions of Landlord theretofore occurring.
o. Additional paragraphs 21 through 28 which are set forth in the
addendum attached hereto are hereby made a part of this Lease.
IN WITNESS WHEREOF, the parties have caused this Lease to be executed
as of the day and year first above written.
LANDLORD TENANT
ALTA INVESTORS ADS NATIONWIDE/ATTORNEY'S DIVERSIFIED SERVICES
------------------------------- ----------------------------------------------
By /s/ XXXX X. XXXX By /s/ XXXXX XXXXXXXXXX PRESIDENT
---------------------------- --------------------------------------------
Xxxx X. Xxxx
By /s/ XXXXXXXXXX X. XXXXXXXXX By /s/ XXXXX XXXXXXXXXX
---------------------------- --------------------------------------------
Xxxxxxxxxx X. Xxxxxxxxx Xxxxx Xxxxxxxxxx, individually
as Guarantor
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