STANDARD LEASE
Lease Preparation Date: AUGUST 5, 1996
Lessor: XXX PROPERTIES,
a California General Partnership
DBA: COMMERCE PARK - SUNNYVALE
By: R&B Commercial Management Company, Inc.
a California corporation
As Manager and Agent
0000 Xxxxxxx Xxxxxx, XX: #X000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Lessee: INTEST CORP., A NEW JERSEY CORP.
Trade Name: INTEST CORP., A NEW JERSEY CORP.
1. BASIC LEASE TERMS.
1.1. "Premises": That certain space containing approximately 1,900
useable square feet, located in the area shown on the Site Plan attached hereto
as Exhibit A and more particularly described in the Space Plan attached hereto
as Exhibit A-1. The address of the Premises is: 0000 X. XXXXX XXXXXX, XXXXX X,
XXXXXXXXX, XXXXXXXXXX 00000.
1.2. "Building Square Footage": Notwithstanding any other manner of
measurement, the parties agree that for the purpose of this Lease the total
Building Square Footage is 127,476 usable.
1.3. "Lessee's Notice Address": The address of the Premises unless
otherwise specified here: 0000 X. XXXXX XXX., XXXXX X, XXXXXXXXX, XXXXXXXXXX
00000.
1.4. "Lessor's Notice Address": 0000 X. XXXXX XXX, XXX. 000, XXXXXXXXX,
XXXXXXXXXX 00000.
1.5. "Lessee's Permitted Use": GENERAL OFFICE, SALES, ENGINEERING AND
LIGHT MANUFACTURING.
1.6. "Lease Term": The Lease Term shall commence on SEPTEMBER 1, 1996
and ends on AUGUST 31, 2001 ( 60 months, and 0 days).
1.7. "Base Monthly Rent": $1,862.00 payable in lawful money of the
United States of America, and increased in accordance with the provisions of
this Lease.
1.8. "Security Deposit": $2,178.00 payable in lawful money of the
United States of America.
1.9. "Lease Documentation Fee": N/A payable in lawful money of the
United States of America.
1.10. "Lessee's Proportionate Share": .0149, as of date of execution of
this Lease.
1.11. "Base Monthly Rent Increases": In the event that Xxxxxx's Lease
Term is greater than twelve (12) months, Lessee's Base Rent will increase to the
amounts at the time noted below:
Effective Date of Increase New Base Monthly Rent
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SEPTEMBER 1, 1997 $1,919.00
SEPTEMBER 1, 1998 $1,995.00
SEPTEMBER 1, 1999 $2,071.00
SEPTEMBER 1, 2000 $2,147.00
1.12. "Expense Base Year": The calendar year 1996.
1.13. "Tax Base Year": The later of (i) the fiscal year commencing on
JULY 1, 1996 and ending on JUNE 30, 1997, or (ii) the first year in which a tax
bill for the Project reflects the full assessed value of the Project of improved
real property.
1.14. "'Rent' or 'rent'": Base Monthly Rent, Additional Rent and/or any
other sum required to be paid by Xxxxxx to Lessor hereunder, whether or not such
sums are specifically designated as rent in any other provision of this Lease.
1.15. "Project": The land, buildings, landscaping, parking and other
improvements comprising that certain business complex of which the Premises are
a part.
2. DEMISE AND POSSESSION.
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2.1. Demise. Lessor hereby leases to Lessee, and Lessee leases from
Lessor, the Premises for the Lease Term and upon and subject to the terms,
conditions and other provisions of this Lease. Any statement of square footage
set forth in this Lease, or that may have been used in calculating any rent due
hereunder, is an approximation which Lessor and Lessee agree is reasonable and
any rent based thereon is not subject to revision whether or not the actual
square footage is more or less.
2.2. Delay in Possession. If for any reason Lessor cannot deliver
possession of the Premises by the Commencement Date, Lessor shall not be subject
to any liability, nor shall the validity of this Lease be affected. If Lessee
has not contributed to such delay there shall
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be a proportionate reduction of the Base Monthly Rent covering the period
between the Commencement Date and the date Lessor actually tenders possession of
the Premises to Lessee. If the Premises have not been tendered to Lessee on or
before one hundred twenty (120) days from the Commencement Date, then either
Lessor or Lessee shall have the right to terminate this Lease upon written
notice to the other (provided that the party giving such notice has not been the
cause of the delay).
2.3. Condition and Disclosure. Lessee acknowledges that it has examined
the Premises and accepts the Premises "as is" and in its present condition,
subject to any work described as "Lessor's Work" to be performed by Lessor in
accordance with the terms and provisions of the Work Letter attached hereto as
Exhibit X. Xxxxxx makes no representation or warranty whatsoever, express or
implied, concerning the fitness or suitability of the Premises or the Project
for the conduct of Lessee's business or for any other reason. Lessee
acknowledges that Xxxxxx has made such investigations as it deems reasonable and
necessary with reference to such matters and assumes all responsibility therefor
as the same relate to Xxxxxx's use and occupancy of the Premises and the
Project.
2.4. Suite Acceptance Letter. Within five (5) days following Lessor's
tender of the Premises to Lessee, Lessor and Lessee shall sign a Suite
Acceptance Letter in the form attached hereto as Exhibit C, acknowledging the
actual commencement and expiration dates of the Lease Term, the Base Monthly
Rent, and all other information set forth in such form.
3. BASE MONTHLY RENT.
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3.1. Base Monthly Rent. In advance, on the first day of each calendar
month of the Lease Term, Lessee shall pay, without deduction or offset, prior
notice or demand, Base Monthly Rent at the place designated by Lessor, provided
that Base Monthly Rent for the first full calendar month of the Lease Term is
due and payable upon execution of this Lease. In the event that the Lease Term
commences or ends on a day other than the first day of a calendar month, a
prorated amount of Base Monthly Rent shall be due for each such month,
calculated using a thirty (30) day month.
3.2. Late Charges. Any rent which is not paid when due shall be deemed
to be late, and if any rent is not paid within ten (10) days after it becomes
due Lessee shall pay to Lessor as Additional Rent a late charge equal to ten
percent (10%) of the amount of such late rent or the sum of Fifty Dollars
($50.00), whichever is greater, for each month or fractional month from the date
due until paid. A Twenty-Five Dollar ($25.00) handling charge shall be paid by
Lessee to Lessor for each returned check and, thereafter, Lessee shall pay all
future payments of rent or other charges due by money order or cashier's check.
Lessor and Xxxxxx agree that in the event of late rent payments or returned
checks, Lessor shall incur damages, the exact of amount of which are extremely
difficult or impossible to ascertain, and that the late charges and handling
charges described herein are not penalties but are a reasonable approximation of
the actual amount of such damages.
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3.3. Construction Obligations. The amount of Base Monthly Rent may
include the projected cost of construction of Lessee's improvements as indicated
on Exhibit B attached hereto. In the event that Lessee requests Lessor to
construct additional improvements or if the final construction costs exceed the
original estimates, such costs or expenses, upon itemized notice by Lessor,
shall be paid by Lessee to Lessor, or Lessor may increase the Base Monthly Rent
according to the terms and conditions outlined on Exhibit B, or elsewhere in
this Lease.
4. ADDITIONAL RENT.
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4.1. Definition.
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(a) All charges payable by Lessee hereunder other than Base
Monthly Rent are sometimes referred to herein as "Additional Rent." Unless this
Lease provides otherwise, Additional Rent shall be due and payable with the next
monthly installment of Base Monthly Rent and is subject to the provisions of
Paragraph 3.2 hereof.
(b) The following terms shall have the meanings hereinafter
set forth:
(i) "Expense Comparison Year": Each calendar year
after the Expense Base Year.
(ii) "Operating Expenses": All costs and expenses of
ownership, operation, maintenance, management, repair and insurance of the
Project, including, but not limited to, the costs of the following: all
supplies, materials, labor and equipment, used in or related to the operation
and maintenance of the Project; all utilities, including, but not limited to,
water, electricity, gas, heating, lighting, sewer, waste disposal, security,
air-conditioning and ventilating costs and all charges relating to the use,
ownership or operation of the Project; all maintenance, management, janitorial
and service agreements related to the Project; all legal and accounting
services; all business license and similar fees; all insurance including, but
not limited to, the premiums and any other costs of fire, casualty and liability
coverage, rent abatement and earthquake insurance and any other type of
insurance related to the Project; all maintenance relating to the public and
service areas within and around the Project, including, but not limited to,
sidewalks, landscaping, service areas, driveways, parking areas, walkways,
building exteriors (including painting), signs and directories, including for
example, costs of resurfacing and restriping parking areas; amortization (along
with reasonable financing charges) of capital improvements made to the Project
which may be required by any government authority or which shall improve the
operating efficiency of the Project, including without limitation all expenses
associated with fire and life safety retrofitting; all Lessor's costs in
managing, maintaining, repairing, operating and insuring the Project, including
for example, clerical, supervisory and janitorial staff; however, Operating
Expenses shall not include depreciation on the Project, loan payments, executive
salaries or real estate broker commissions.
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4.2. Operating Expenses. All capitalized terms used in this Section
shall have the meanings ascribed to them in Paragraph 4.1(b), above.
(a) If the Operating Expenses incurred or paid by Lessor for
any Expense Comparison Year during the Lease Term are greater than the Operating
Expenses incurred or paid by Lessor for the Expense Base Year, then Lessee shall
pay as Additional Rent an amount equal to such increase multiplied by Xxxxxx's
Proportionate Share. In the event of any partial Expense Comparison Year, Lessee
shall pay the increase, if any, based on the number of days of the Expense
Comparison Year included within the Lease Term.
(b) By April 1st of each Expense Comparison Year, Lessor shall
provide Lessee a statement of Xxxxxx's best estimate of Xxxxxx's share of any
increase in Operating Expense for such Expense Comparison Year over the costs
for the Expense Base Year. Beginning with the next regular Base Monthly Rent
payment, Lessee shall pay 1/12th of the increase multiplied by the number of
elapsed months from the commencement of the Expense Comparison Year and
thereafter shall continue to pay 1/12th of the increase each month until Xxxxxx
receives the next Expense Comparison Year's statement. By April 1st following
each Expense Comparison Year, Lessor shall provide Lessee a statement showing
the total actual Operating Expenses for the calendar year just ended, and
Xxxxxx's share of any increase over the Expense Base Year. If Xxxxxx's estimates
paid to date for the preceding calendar year are less than Xxxxxx's share of the
increase, Lessee shall pay the difference concurrently with the next payment of
Base Monthly Rent. In the event that Lessee has paid more than its share of
estimates for the preceding calendar year, Lessor shall credit such overpayment
towards Xxxxxx's future Operating Expense obligations. Failure of Lessor to
furnish a statement of actual or estimated Operating Expenses shall not
constitute a waiver of Lessor's right to collect from Lessee any amounts payable
with respect to the increase in Operating Expenses.
(c) Lessee shall not be entitled to any reduction, refund,
offset, allowance or rebate in Base Monthly Rent or any other rent due hereunder
if the operating Expenses for any Expense Comparison Year are less than those of
the Expense Base Year. In addition, if for any reason Lessor does not elect to
bill Lessee for Operating Expense increases or estimates for a particular
Expense Comparison Year, Xxxxxx's right to charge Lessee for such expenses in
subsequent years is not waived.
4.3. Taxes.
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(a) Definitions. The following terms shall have the meaning
set forth below:
(i) "Tax Comparison Year" is each fiscal year
commencing on the anniversary of the Tax Base Year and ending twelve (12) months
thereafter.
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(ii) "Real Property Taxes" are all (i) real estate
taxes, general and special assessments, license fees, license taxes, business
license fees, commercial rental taxes, transit charges or taxes, levies and
charges, and any penalties imposed by any taxing authority against the Project;
(ii) any taxes or fees on Lessor's right to receive, or the receipt of, rent or
income from the Project or against Lessor's business of leasing and operating
the Project; (iii) any taxes or charges for fire protection, streets, sidewalks,
road maintenance, refuse or other services provided to the Project by any
governmental agency; (iv) any taxes imposed upon this transaction, or based upon
a re-assessment of the Project due to a change in ownership or transfer of all
or part of Lessor's interest in the Project; and (v) any charges or fees
replacing, substituting for, or in addition to any of the foregoing impositions
previously included within the definition of Real Property Tax. Real Property
Taxes do not, however, include Lessor's federal or state income, franchise,
inheritance or estate taxes.
(b) If the Real Property Taxes incurred or paid by Lessor for
any Tax Comparison Year ending or commencing during the Lease Term are greater
than the Real Property Taxes incurred or paid by Lessor for the Tax Base Year,
then Lessee shall pay Lessor an amount equal to such increase multiplied by
Xxxxxx's Proportionate Share. In the event of any partial Tax Comparison Year,
Lessee shall pay the increase, if any, prorated for the number of days of such
Tax Comparison Year included within the Lease Term.
(c) Following the end of each Tax Comparison Year, Lessor
shall provide Lessee a statement of the amount of the increase, if any, in Real
Property Taxes, but failure to do so by Lessor shall not constitute a waiver of
Lessor's right to collect Xxxxxx's share of any increase in Real Property Taxes.
Upon receipt of the statement, Lessee shall pay in full the amount of its share
of increase. If Real Property Taxes for any Tax Comparison Year is less than the
Tax Base Year amount, Lessee shall not be entitled to any reduction in rent or
to any refund offset, allowance or rebate of any nature. At Lessor's sole
discretion, Lessor may charge Lessee estimated Real Property Taxes and such
estimates shall be calculated and paid in a manner similar to that described
above for Operating Expense estimates. Should the Lease Term expire before
Lessor is able to determine the increase, if any, for the Lessee's last Tax
Comparison Year, Lessor shall estimate the increase and Lessee shall pay the
estimated amount upon demand by Lessor. If any estimate by Lessor which has been
paid by Lessee exceeds the actual amount of any increase in Real Property Taxes,
such difference shall be credited by Lessor against Xxxxxx's future Real
Property Tax obligation. If such estimate is less than the actual amount of Real
Property Taxes, Lessee shall pay such difference to Lessor with the next
installment of Base monthly Rent.
4.4. Personal Property Taxes. Lessee shall pay all taxes charged
against trade fixtures, furnishings, equipment or any other personal property
belonging to Xxxxxx. Lessee shall have all personal property taxes billed
separately from the Project. If any of Xxxxxx's personal property is taxed with
the Project, Lessee shall pay Lessor the taxes for the personal property upon
demand by Xxxxxx.
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4.5. Other Impositions. Xxxxxx agrees to pay as Additional Rent to
Lessor Xxxxxx's share of any parking charges, utility surcharges, occupancy
taxes, or any other costs resulting from the statutes or regulations, or
interpretations thereof, enacted by any governmental authority in connection
with the use or occupancy of the Project or the parking facilities serving the
Project, or any part thereof.
4.6. Place of Payment. All rent shall be paid by Lessee to Lessor at
Lessor's Notice Address.
5. SECURITY DEPOSIT.
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5.1. Concurrently with the execution of this Lease, Lessee shall pay
the Security Deposit to Lessor as security for the faithful performance by
Xxxxxx of all of the terms, covenants, conditions and agreements of this Lease.
If Lessee defaults with respect to any provision of this Lease, Lessor may
retain, use or apply all or any part of the Security Deposit to compensate
Lessor for any loss or damage suffered by Xxxxxx's default including, but not
limited to, the failure of Lessee to pay any rent due hereunder, and for the
repayment of amounts Lessor is obligated to spend by reason of Lessee's default.
If any portion is so retained, used or applied, Lessee, upon demand, shall
deposit with Lessor an amount sufficient to restore the Security Deposit to the
original amount plus any increased amounts as required by this Lease. Lessor
shall not be required to keep the Security Deposit separate from its general
funds, and Lessee shall not be entitled to interest on it. If Xxxxxx fully and
faithfully performs every provision of this Lease, the Security Deposit shall be
returned to Lessee after the expiration of the Lease Term and the surrender of
the Premises. In no event shall Lessee have the right to apply any part of the
Security Deposit to any rent payable under this Lease.
6. LEASE DOCUMENTATION FEE.
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6.1. For expenses incurred related to the transaction (or proposed
transaction) contemplated by this Lease including, but not limited to, legal
costs, administration and credit verification, Lessee shall pay to Lessor upon
execution of this Lease, the Lease Documentation Fee. Lessee acknowledges that
the Lease Documentation Fee is nonrefundable and shall not be credited to any
rent which may become due during the Lease Term.
7. USE OF PREMISES.
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7.1. Permitted Use. The Premises may be used and occupied only for
Xxxxxx's Permitted Use and for no other purpose. Lessee shall not use the
Premises or any portion of the Project in any manner which will violate any
covenants, conditions and restrictions and any federal, state and local laws,
ordinances, orders and regulations, including, without limitation, the Americans
with Disabilities Act, (collectively "Laws") affecting the Premises and the
Project. Lessee shall at all times during the term hereof promptly comply with
all
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Laws affecting the Premises and the Project; provided, however, that if any such
Laws require new construction or installation in the Premises or in the Project,
which are not specifically required as a result of the use of the Premises or
the Project by Lessee or any assignee or sublessee of Lessee, Lessee shall not
be required to perform or pay for such construction or installations (except to
the extent that the cost of such construction or installations may be deemed to
be an Operating Expense hereunder, in which case, Lessee shall pay Xxxxxx's
proportionate share of such cost). Notwithstanding the foregoing, to the extent
that any construction or installations to the Premises or the Project are
required by any Laws as a result of the use of the Premises or the Project by
Lessee or any assignee or sublessee of Lessee, then Lessee shall, at its sole
cost and expense, (i) immediately notify Lessor in writing of all actions
necessary to comply with such Laws, and (ii) if such action is required in the
Premises, promptly take all such action subject to the provisions of this lease
governing the making of alterations. If any such action is required outside the
Premises, Lessor shall have the option to perform such construction or
installations and to be reimbursed therefore by Xxxxxx. Lessee shall not perform
any act or carry on any practices that may injure the Project or the Premises or
that may be a nuisance or menace, or that may disturb the quiet enjoyment of
other occupants in the Project including, but not limited to, any act or
practice resulting in the picketing of the Project or Premises by any person,
the use of equipment which causes vibration, the use or storage of chemicals, or
the generation of heat or noise which is not, in Lessor's sole opinion, property
insulated. Lessee shall not cause, maintain or permit any outside storage on or
about the Project. In addition, Xxxxxx shall not perform any work or conduct any
business whatsoever in the Project, outside the premises, or allow any condition
or thing to remain on or about the Premises which diminishes the appearance or
aesthetic qualities of the Premises and/or the Project and/or the surrounding
property. Lessee shall not allow any animal to be brought upon the Project by
its agents, employees, contractors or invitees.
7.2. Hazardous Substances.
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(a) Definitions. For purposes of this Lease, the following
terms shall have the respective meanings indicated:
(i) "Hazardous Substances" shall include, but not be
limited to, substances defined as "hazardous substances," "hazardous materials,"
"toxic substances," "infectious waste," or any similar substance as defined and
used in any federal, state or local environmental control, health, or safety
laws applicable to the Premises or the Project (collectively, the "Environmental
Laws"), including the regulations adopted or publications promulgated pursuant
to any such laws, and any other legal requirements, as they may be amended from
time to time.
(b) Lessee shall not introduce any Hazardous Materials onto
the Project, without the prior specific written consent of Lessor, which Lessor
may withhold in its sole and absolute discretion, and Lessee shall comply with
all applicable legal requirements pertaining to the storage, handling, use or
disposal of any Hazardous Substances.
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(c) Upon written request from time to time, Lessee shall
promptly provide to Lessor the following information pertaining to all
operations conducted in, on or about the Premises:
(i) Copies of all permits obtained from any local,
state or federal agency or other authority;
(ii) Material safety data sheets for all chemicals in
use at, manufactured at, imported to or stored at the Premises;
(iii) Copies of all materials filed with the Federal
Occupational Safety and Health Agency under the OSHA Hazardous Communication
Standard and all materials filed with the Department of Health, Department of
Environmental Protection of any other federal, state or local agency or entity;
(iv) Maps, diagrams and site plans showing the
location of all storage areas and containers for Hazardous Substances including
details as to the amounts stored or used;
(v) A description of the operations conducted on the
Premises and their processes;
(vi) A copy of any and all contracts entered into by
Lessee for the removal, transportation and/or disposal of any Hazardous
Materials from the Premises (if Lessee directly or indirectly causes any
Hazardous Materials to be located on the Project, Lessee shall promptly enter
into such a contract for removal and proper disposal thereof); and
(vii) Any other information that Lessor may
reasonably require.
The requirement to furnish information concerning Hazardous
Materials shall not be construed as meaning there are no restrictions on the
Hazardous Materials that may be stored or used at the Premises.
(d) In the event the Hazardous Substances are discovered upon,
in, or under the Project, and the applicable governmental agency or entity
having jurisdiction over the Project requires the removal of such Hazardous
Substances, Lessee shall be responsible for removing those Hazardous Substances
arising out of or related to the use or occupancy of the Premises and/or the
Project by Lessee or its agents, affiliates, customers, employees, business
associates or assigns but not those of its predecessors. Notwithstanding the
foregoing, Lessee shall not take any remedial action in or about the Premises or
the Project, or enter into any settlement agreement, consent decree or other
compromise with respect to any claims relating to any Hazardous Substance in any
way connected with the Premises or the Project without first notifying Lessor of
Xxxxxx's intention to do so and affording Lessor the opportunity to appear,
intervene or otherwise appropriately assert and protect Lessor's
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interest with respect thereto. Lessee shall immediately notify Lessor in writing
of: (i) any spill, release, discharge or disposal of any Hazardous Substance in,
on or under the Premises, the Project or any portion thereof, (ii) any
enforcement, cleanup, removal or other governmental or regulatory action
instituted, contemplated, or threatened pursuant to any Environmental Laws,
(iii) any claim made or threatened by any person against Lessee, the Premises,
or the Project relating to damage, contribution, cost recovery, compensation,
loss or injury resulting from or claimed to result from any Hazardous
Substances; and (iv) any reports made to any environmental agency arising out of
or in connection with any Hazardous Substances in, on or removed from the
Premises or the Project, including any complaints, notices, warnings, reports or
asserted violations in connection therewith.
(e) Lessor shall have the right, in its sole discretion, to
require Lessee, at Lessee's sole cost and expense, to undertake and submit to
Lessor a periodic environmental audit from an environmental company approved by
Lessor, which audit shall cover Lessee's compliance with this Section 7.2. An
environmental audit shall be conducted, at Xxxxxx's sole cost and expense, in
connection with Xxxxxx's surrender of the Premises at the expiration or earlier
termination of the Lease. Lessee shall promptly comply with all requirements of
such audit and cure all matters raised therein at Xxxxxx's sole cost. Xxxxxx
also agrees to comply with Xxxxxx's request for additional information including
questionnaires, necessary to assure Xxxxxx of Xxxxxx's compliance with the
provisions of this Section 7.2.
(f) Lessee shall indemnify, protect, defend (with counsel
chosen by Xxxxxx) and hold harmless Lessor, Xxxxxx's affiliates, and their
partners, officers, directors, employees, agents (including any managing agent
of the Project) and other representatives, and their successors and assigns,
from and against any and all claims, demands, actions or liabilities for, and
any and all loss or cost (including legal fees and expenses) in connection with
(i) any injury, death, or damage, whether alleged or proven, direct or
consequential, foreseeable or unforeseeable, directly or indirectly arising out
of or related to the presence, use, generation, storage, discharge, spillage,
seepage or disposal of Hazardous Substances by or with the knowledge or consent
of Lessee or its officers, directors, employees, agents or representatives, and
(ii) any required or necessary removal, repair, clean up or detoxification
directly or indirectly arising out of or related to the presence, use,
generation, storage, discharge, spillage, seepage or disposal of Hazardous
Substances on, under or about the Premises during the Lease Term.
(g) Throughout the Lease Term (and for any other period Lessee
or its successors and assigns may occupy all or part of the Premises), Lessee
shall post, publish, or otherwise give notice of the existence of asbestos,
asbestos-containing materials, tobacco and tobacco smoke, and all other
Hazardous Substances in or about the Premises or the Project, in accordance with
all applicable legal requirements, to Lessee's employees, contractors, visitors,
and invitees and any others who may be entitled to notice under applicable legal
requirements.
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(h) All representations, warranties, covenants and other
obligations of Lessee with respect to Hazardous Substances shall survive the
expiration or earlier termination of this Lease.
(i) ANY CLAIM BETWEEN XXXXXX AND LESSEE WHICH DIRECTLY OR
INDIRECTLY RELATES TO OR ARISES OUT OF THE EXISTENCE OF A HAZARDOUS SUBSTANCE
IN, ON OR ABOUT THE PROJECT, WHETHER BASED UPON THE THEORY OF NEGLIGENCE, STRICT
LIABILITY, BREACH OF LESSOR'S WARRANTY OF HABITABILITY (IF ANY) OR ANY OTHER
THEORY, SHALL BE SUBMITTED TO AND DECIDED BY BINDING ARBITRATION. BOTH PARTIES
TO THIS LEASE, BY INITIALING THIS PROVISION, ARE GIVING UP THEIR RIGHT TO HAVE
ANY SUCH CLAIM DECIDED IN A COURT OF LAW BEFORE A JUDGE OR JURY. SUCH
ARBITRATION SHALL BE HELD IN THE CITY AND STATE WHERE THE PROJECT IS LOCATED IN
ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION FOR A SINGLE
ARBITRATOR. THE ARBITRATOR SHALL AWARD ALL COSTS AND EXPENSES, INCLUDING
REASONABLE ATTORNEYS' FEES, TO THE PREVAILING PARTY IN SUCH ARBITRATION. IF THE
PROJECT IS IN CALIFORNIA, ALL OF THE PROVISIONS OF CALIFORNIA CODE OF CIVIL
PROCEDURE SECTION 1283.05 SHALL BE INCORPORATED INTO AND MADE APPLICABLE TO,
THIS ARBITRATION AGREEMENT; IF THE PROJECT IS IN ANY OTHER STATE, THIS PROVISION
SHALL BE CONSTRUED TO CONFER SIMILAR RIGHTS OF DISCOVERY UPON THE PARTIES TO THE
EXTENT PERMISSIBLE UNDER THE LAWS OF SUCH STATE. THE ARBITRATOR'S AWARD,
INCLUDING WITHOUT LIMITATION ANY PERMANENT INJUNCTION AWARDED BY THE ARBITRATOR,
SHALL BE ENFORCEABLE IN ANY COURT OF COMPETENT JURISDICTION. NOTHING HEREIN
SHALL BE DEEMED TO LIMIT THE RIGHT OF EITHER PARTY TO BRING ANY ACTION IN ANY
COURT TO THE EXTENT SUCH PARTY IS REQUESTING A TEMPORARY RESTRAINING ORDER OR A
PRELIMINARY INJUNCTION, BUT THE REMEDY OF PERMANENT INJUNCTION MAY BE AWARDED
ONLY BY THE ARBITRATOR IN ACCORDANCE WITH THE PROVISIONS OF THIS PARAGRAPH.
NOTHING HEREIN SHALL BE DEEMED TO LIMIT XXXXXX'S RIGHTS IN THE EVENT OF LESSEE'S
DEFAULT UNDER THIS LEASE, INCLUDING WITHOUT LIMITATION LESSOR'S RIGHT TO BRING
AN ACTION FOR UNLAWFUL DETAINER UNDER THE LAWS OF THE STATE WHEREIN THE PROJECT
IS LOCATED. FOR ANY PARTICULAR DISPUTE CONCERNING HAZARDOUS SUBSTANCES WHICH IS
ARBITRABLE HEREUNDER, THIS ENTIRE PROVISION SHALL BE DEEMED TO BE OF NO EFFECT
ONLY FOR SUCH PERIOD OF TIME THAT LESSEE AND LESSOR ARE BOTH NAMED PARTIES IN
ANY THIRD PARTY LITIGATION WHICH ARISES OUT OF THE SUBJECT MATTER OF SUCH
ARBITRABLE DISPUTE.
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8. TENANT IMPROVEMENTS.
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8.1. Any Tenant Improvements to be performed in the Premises ("Tenant
Improvements") shall be performed in accordance with the terms, conditions and
other provisions of the Work Letter attached hereto as Exhibit B. Except for
that work designated in the Work Letter as "Lessor's Work," Lessor shall be
under no obligation to alter, improve or otherwise perform any work in the
Premises prior to or during the Lease Term.
9. PARKING.
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9.1. Lessee and Lessee's customers, suppliers, employees, and invitees
have the non-exclusive right to park in common with other lessees and/or persons
in the parking facilities as designated by Lessor. Lessee shall not overburden
the parking facilities and shall cooperate with Lessor and/or other lessees and
persons in the use of the parking facilities. Lessor reserves the right to
assign specific spaces and/or charge Lessee therefor as Additional Rent, to make
changes in the parking layout from time to time, and to establish reasonable
time limits on parking.
10. LESSOR'S RIGHTS.
---------------
10.1. All portions of the Project not within the Premises are reserved
to Lessor. Lessor also reserves to itself the use of and access through the
Premises to all spaces in or adjacent to the Premises which are used for shafts,
stacks, pipes, conduits, fan rooms, ducts, electric or other utilities, sink or
other building facilities, for the purpose of operating, maintaining, repairing
and/or replacing the same. Without limiting the generality of the foregoing,
Lessor shall have the right, without notice or liability to Lessee for damage or
injury to property, persons or business, and without effecting an eviction or
disturbance of Lessee's use or possession or giving rise to any claim for
setoffs or abatement of rent, to (i) change the location and/or arrangement of,
and/or to otherwise alter, plazas, entrances, passageways, doors, elevators,
stairs, restroom facilities, and other public or common portions of the
buildings and property not within the Premises, (ii) decorate, remodel, repair,
alter, or otherwise prepare the Premises for re-occupancy or other use at any
time after Lessee abandons the Premises, (iii) impose such controls on the
manner of access to the buildings as Lessor may deem appropriate for the
security of such buildings and their occupants (but Lessor shall have no duty to
do so), and (iv) do or permit to be done any work in or about the exterior of
such buildings or any adjacent or nearby building, land, street or alley.
11. UTILITIES. (Delete 11.1 or 11.2)
---------
[11.1. Deleted]
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11.2. Unserviced Space. Lessee shall pay for all water, gas, heat,
light, power, sewer, electricity, or other services metered, chargeable to or
provided to the Premises. Lessor reserves the right to install separate meters
for any such utility.
11.3. No Liability. Lessor shall not be liable or deemed to be in
default hereunder, nor shall there be any abatement of rent for any interruption
or reduction of utilities (including telephone service) or services to the
Project. Xxxxxx agrees to comply with all energy conservation programs
implemented by Lessor.
11.4. Telephone Service. Lessee shall contract and pay for all
telephone and similar services for the Premises subject to the provisions of
this Lease.
12. ALTERATIONS; MECHANIC'S LIENS.
-----------------------------
12.1. Alteration. Lessee shall not make any alterations to the Premises
without Xxxxxx's prior written consent, which shall not be unreasonably
withheld. Lessor's approval shall be deemed not to have been unreasonably
withheld if Lessor refuses to grant approval because (i) Xxxxxx's proposed
alterations would potentially disturb any asbestos or Hazardous Substances in
the Project, or (ii) Lessee's proposed alterations would affect any roof,
foundation or other structural or mechanical system of the Project, would alter
any common area in the Project, would be visible from the exterior of the
Premises, or would fail to comply with any design criteria uniformly applied to
the majority of lessees in the Project. Lessee shall have no right whatsoever to
make any alterations to any portion of the Project other than the Premises. In
the event Lessor gives its consent, no such alterations shall proceed without
Lessor's prior written approval of (i) Lessee's contractor; (ii) insurance
policies, or other evidence acceptable to Lessor of the existence of insurance
coverage in favor of Xxxxxx's contractor, for public liability including bodily
injury and property damage with a combined single limit of not less than
$1,000,000, for automobile liability, including owned, non-owned and hired
vehicles, with a limit of not less than $500,000 per occurrence,
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each of the preceding policies to be endorsed to name Xxxxxx as an additional
insured, for worker's compensation in the limits required by law, and for
employer's liability with limits not less than $1,000,000; and (iii) detailed
plans and specifications for such work. Lessee shall reimburse Lessor upon
demand for all fees and other costs incurred by Xxxxxx including, without
limitations any fees of consulting architects, engineers or the like, and of any
managing agent for the review of proposed plans, whether or not approved,
including, without limitation, if the work is approved, a fee (the "Work Review
Fee") equal to ten percent (10%) of the construction cost of the work (including
the value of any change orders) to reimburse Lessor for the cost of supervising
Xxxxxx's work. Xxxxxx's approval of the plans, specifications and working
drawings for Xxxxxx's alterations shall create no responsibility or liability on
the part of Lessor for their completeness, design sufficiency or compliance with
all laws, rules and regulations of governmental agencies or authorities. The
Work Review Fee shall be estimated and paid to Lessor prior to the commencement
of any alterations work. If the actual cost to construct the work exceeds the
initial estimate, the Work Review Fee shall be increased accordingly, and such
increase shall be paid to Lessor upon demand. Before any alterations may begin,
valid building permits or other required permits or licenses must be furnished
to Lessor, and, once the alterations begin, Lessee shall diligently and
continuously pursue their completion. At Lessor's option, any alterations may
become part of the realty and belong to Lessor. If requested by Lessor, Lessee
shall pay, prior to the commencement of construction, an amount determined by
Lessor necessary to cover the costs of demolishing such alterations and/or the
cost of returning the Premises to their condition before any such alterations.
Lessor may also require Lessee to provide Lessor, at Xxxxxx's sole cost and
expense, a payment and performance bond in form acceptable to Lessor, in a
principal amount not less than one and one-half times the estimated costs of
such alterations, to insure Lessor against any liability for mechanic's and
materialmen's liens and to insure completion of work.
12.2. Trade Fixtures. Notwithstanding anything to the contrary in
Paragraph 12.1 above, Lessee may, with prior written consent of Lessor, install
trade fixtures, equipment, and machinery in conformity with all applicable laws,
and such fixtures shall, at the option of Lessor, be removed upon termination of
this Lease and the Premises shall be restored to their original condition,
except for reasonable wear and tear. Lessee shall repair any damage to the
Premises occasioned by the removal of such fixtures.
12.3. Telephones. Private telephone systems and/or other related
telecommunications equipment and lines may not be installed without Lessor's
prior consent, which shall not be unreasonably withheld. All private telephone
equipment shall be installed entirely within the interior of the Premises. Prior
to the expiration of the Lease Term, all such equipment shall be removed and the
Premises restored to substantially the same condition as before such
installation.
12.4. Costs and Liens. Lessee shall pay when due all costs for
alterations and shall keep the Premises, the Project and the underlying property
free from any liens arising out of worked performed for, materials furnished to
or obligation incurred by Xxxxxx. Lessee shall
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give Lessor no less than three (3) and no more than five (5) days prior written
notice of the date such alterations will commence, to enable Lessor to post such
Notices of Nonresponsibility as Lessor deems appropriate. Lessee shall promptly
pay all contractors and materials suppliers furnishing labor and materials in
connection with any such alterations, so as to avoid the filing of any lien
against the Premises or the Project. If any such lien is filed, Lessee shall
cause the same to be released no later than ten (10) days following the filing
thereof. If Xxxxxx fails to cause the release of any lien as provided above,
Lessor may pay the demand of the lien claimant in full or otherwise cause the
release of such lien, and Xxxxxx shall reimburse Lessor for all such costs upon
demand.
12.5. Rights of Lessor. Lessor shall have the right to construct or
permit construction of tenant improvements in or about the Project for existing
and new lessees and to alter any public areas in and around the Project.
Notwithstanding anything in this Lease to the contrary, no such construction
shall be deemed to constitute a breach of this Lease by Lessor and Lessee waives
any such claims which it might have arising from any such construction.
13. FIRE INSURANCE; HAZARDS AND LIABILITY INSURANCE.
-----------------------------------------------
13.1. Use. Lessee shall not do or permit anything to be done within or
about the Premises which shall increase the existing rates of insurance on the
Project or cause the cancellation of any insurance policy covering the Project.
Nor shall Lessee keep, use or sell, or permit anyone to keep, use or sell, any
article in or about the Premises, which may be prohibited by the standard form
of fire and other insurance policies. Lessee shall, at its sole cost and
expense, comply with any requirements of any insurance organization insuring the
Project or any portion thereof. Xxxxxx agrees to pay to Lessor, as Additional
Rent, any increases in premiums on policies resulting from Xxxxxx's Permitted
Use or other use consented to by Lessor which increases Lessor's premiums or
requires extended coverage by Lessor to insure the Premises.
13.2. Fire Insurance. Lessee, at all times during the term of this
Lease and at Lessee's sole expense, shall maintain a policy of standard fire and
extended coverage insurance with "all risk" coverage on all Lessee's
improvements and alterations in or about the Premises and on all personal
property and equipment to the extent of at least ninety percent (90%) of their
full replacement value. The proceeds from this policy shall be used by Xxxxxx
for the replacement of personal property and equipment and the restoration of
Lessee's improvements and/or alterations. This policy shall contain an express
waiver, in favor of Xxxxxx, of any right of subrogation by the insurer. Without
limiting the generality of any other waiver or release that may be contained in
this Lease, Lessee, on behalf of itself, its agents, directors, officers,
principals, employees, representatives and successors and assigns, hereby
releases Lessor, its agents, directors, officers, principals, employees and
representatives of any claim that it might otherwise have against Lessor for
destruction, damage, or other loss with respect to Lessee's property by fire or
other cause as to which
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Lessee is required to maintain insurance, whether or not such insurance is
actually maintained.
13.3. General Liability. Lessee, at all times during the term of this
Lease and at Xxxxxx's sole expense, shall maintain a policy of commercial
general liability coverage with a combined single limit of not less than
$2,000,000 for bodily injury and property damage insuring against all liability
of Lessee and its authorized representatives arising out of or in connection
with Xxxxxx's use or occupancy of the Premises and including contractual
liability coverage for the indemnification and other obligations of Lessee under
this Lease. This policy of insurance shall name Lessor and any managing agent of
the Project as an additional insured and shall release Lessor and any managing
agent of the Project from any claims for damage to any person, any property, the
Premises, and the Project, and to Xxxxxx's personal property, equipment,
improvements and alterations in or on the Premises or the Project, caused by or
resulting from risks which are to be insured against by Lessee under this Lease.
13.4. Requirements. All insurance required to be provided by Lessee
under this Lease shall (a) be issued by insurance companies authorized to do
business in the state in which the Premises are located, and maintaining during
the policy term a "General Policyholders Rating" of at least A-, VI, or such
other rating as may be required by any Lender, as set forth in the most current
issue of "Best's Insurance Guide," (b) be primary and noncontributing with any
insurance carried by Lessor, (c) require a deductible of no more than $1,000,
and (d) contain an endorsement requiring at least thirty (30) days prior written
notice of cancellation to Lessor and any managing agent before cancellation or
change in coverage under any policy. Lessee shall deliver a certificate of
insurance or a copy of the policy to Lessor prior to taking occupancy of the
Premises and shall provide evidence of renewed insurance coverage prior to the
expiration of any policies. No insurance required or obtained by Lessee
hereunder shall limit any liabilities or obligations of Lessee to Lessor under
this Lease.
14. INDEMNIFICATION AND WAIVER OF CLAIMS.
------------------------------------
14.1. Waiver. Except to the extent of Xxxxxx's gross negligence or
willful misconduct, Lessee, on behalf of itself, its agents, principals,
employees, representatives, successors and assigns, hereby releases Lessor and
its agents, principals, employees, representatives, successors and assigns, and
waives all claims against such parties for damage to any property in or about
the Premises or the Project and for injury to any persons, including death
resulting therefrom regardless of cause or time of occurrence.
14.2. Indemnification. Lessee shall defend, protect, indemnify and hold
Lessor, its agents, employees, principals, representatives, successors and
assigns, harmless from and against any and all claims, actions, proceedings,
expenses, damages and liabilities, including attorneys' and consultants' fees,
arising out of, connected with, or resulting from any use of the Project by
Lessee, its agents, employees, contractors, visitors or licensees, including,
without limitation, any failure of Lessee to comply fully with all of the terms
and conditions
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of this Lease, except for any damage or injury which is the direct result of the
willful misconduct or gross negligence of Lessor, it employees, or agents.
14.3. Exemption of Landlord From Liability. Except to the extent of
Lessor's gross negligence or willful misconduct, Lessor shall not be liable for
injury or damage to the person or goods, wares, merchandise or other personal
property of Xxxxxx, or that of any employee, contractor, invitee or agent of
Lessee, or of any other person in the Project with or without the consent of
Lessor, or any other person in the Project with the consent of Lessee, whether
such injury or damage is caused by or results from fire, steam, electricity,
gas, water or rain, or from the breakage, leakage, obstruction or other defects
of pipes, fire sprinklers, wires, appliances, plumbing, air conditioning or
lighting fixtures, or from any other cause, whether the said injury or damage
results from conditions arising on the Premises or any other portion of the
Project, or from any other source, including injury or damage caused by persons
on the Project with or without the consent of Lessor or any other party, and
regardless of whether the means of repairing the same is accessible or not.
Notwithstanding Lessor's negligence or breach of this Lease, Lessor shall under
no circumstances be liable for injury to Xxxxxx's business or for any loss of
income or profit therefrom.
15. REPAIRS.
15.1. In General. Lessee shall, at its sole cost, keep and maintain the
Premises and every part thereof including, without limitation, interior windows,
skylights, doors, any store fronts and the interior of the Premises, in good and
sanitary order, condition and repair. Lessee shall also at its sole cost keep
and maintain all utilities, fixtures, plumbing and mechanical equipment (except
for all HVAC equipment, which shall be maintained by Lessor and charged to
Lessee as an Operating Expense) used by Lessee in good order and repair and
furnish all expendables (e.g., light bulbs, paper goods, soaps, etc.) used in
the Premises. The standard for comparison and need of repair will be the
condition of the Premises at the commencement of this Lease and all repairs
shall be made by a licensed and bonded contractor approved by Lessor.
15.2. Lessor's Rights. Lessee shall not make repairs to the Premises at
the cost of Lessor whether by reduction of rent or otherwise; neither shall
Lessee have any right to vacate the Premises or terminate the Lease if repairs
are not made. Lessee hereby waives all rights Lessee may have under Section 1942
of the California Civil Code to make repairs and deduct the cost of the same
from any rent due Lessor from Lessee hereunder. If during the Lease Term, any
alteration, addition or change to the Premises is required by legal authorities,
Lessee, at its sole expense, shall promptly make the same. Lessor reserves the
right to make any such repairs not made or maintained in good condition by
Xxxxxx and Xxxxxx shall reimburse Lessor for all such costs upon demand.
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16. SALES; SIGNS.
------------
16.1. Lessee shall not conduct or permit to be conducted any auction or
sale on the Premises or the Project. Lessor shall have the exclusive right to
control the placement, size, content and quality of any signs, and Lessee shall
comply with the terms and conditions of the Sign Criteria set forth in Exhibit D
attached hereto. Lessee shall not place signs which are visible from the outside
of any buildings of the Project. Any signs not in conformity with this Lease or
the Sign Criteria may be removed by Lessor at Lessee's expense.
17. ENTRY BY XXXXXX.
---------------
17.1. In General. Lessor and Lessor's agents and contractors shall have
the right to enter the Premises at all reasonable times for the purpose of
inspecting the same, maintaining the Project, or making repairs, alterations or
additions to any portion of the Project, including, without limitation, the
erection and maintenance of scaffolding, canopies, fences and props, posting
notices of nonresponsibility, showing the Premises to prospective tenants during
the last six (6) months of the Lease Term, or placing upon the Project any usual
or ordinary "for sale" signs, without any abatement of rent and without any
liability to Lessee for any loss of occupation or quiet enjoyment of Premises
thereby occasioned. Lessee shall permit Lessor at any time within sixty (60)
days prior to the expiration of this Lease, to place upon the Premises any usual
or ordinary "to let" or "to lease" signs. Lessor shall at all times have and
retain a key with which to unlock all of the doors in, upon and about the
Premises, excluding Xxxxxx's vaults, safes and filing cabinets. Lessee shall not
alter any lock or install any new or additional lock or any bolt on any door of
the Premises without the prior written consent of Lessor, which shall not be
unreasonably withheld. If Lessor gives its consent, such work shall be
undertaken by a locksmith approved by Lessor, at Xxxxxx's sole cost, and Lessee
shall furnish Lessor with a key. Lessor retains the right to charge Xxxxxx for
restoring any altered doors to their condition at any time prior to or following
the installation of the new or additional locks.
18. ABANDONMENT.
-----------
18.1. Lessee shall not vacate or abandon the Premises at any time
during the Lease Term or permit the Premises to remain unoccupied for a period
longer than fifteen (15) consecutive days during the Lease Term. If Xxxxxx
abandons, vacates or surrenders the Premises, or is dispossessed by process of
law, or otherwise, any personal property belonging to Xxxxxx left in or about
the Premises will, at the option of Lessor be deemed abandoned and may be
disposed of by Lessor in the manner provided for by the laws of the state in
which the Premises are located.
19. DAMAGE OR DESTRUCTION.
---------------------
19.1. Definitions. The following terms shall have the meanings
hereinafter set forth:
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(a) "Partial Damage" shall mean damage or destruction to any
improvements on the Project, other than those owned by Lessee, which damage or
destruction would, in Lessor's judgment, require fewer than ninety (90) days
from the date such damage or destruction occurs to repair or restore.
(b) "Total Destruction" shall mean damage or destruction to
the Project, other than to improvements owned by Lessee, which damage or
destruction would, in Lessor's judgment, require longer than ninety (90) days
from the date such damage or destruction occurs to repair or restore.
(c) "Insured Loss" shall mean damage or destruction to
improvements on the Project, other than to improvements owned by Lessee, which
was caused by an event covered by the casualty insurance carried by Lessor on
the Project, irrespective of any deductible amounts or coverage limits involved.
(d) "Replacement Cost" shall mean the cost, at the time of the
occurrence of such damage or destruction, to repair or rebuild the Project to
its condition existing immediately prior thereto, including, without limitation,
demolition, debris removal and upgrading required by the operation of applicable
building codes, ordinances or laws, and without deduction for depreciation.
(e) "Hazardous Substance Condition" shall mean the occurrence
or discovery of a condition involving the presence of, or a contamination by, a
Hazardous Substance as defined in Paragraph 7 hereof, on, under or about any
portion of the Project.
19.2. Partial Damage -- Insured Loss. If any Partial Damage that is an
Insured Loss occurs, then Lessor shall, at Lessor's expense, repair such damage
as soon as reasonably possible and this Lease shall continue in full force and
effect. Notwithstanding the foregoing, if the insurance proceeds are not
sufficient to effect such repair, Lessor shall have no obligation to pay for the
shortage in insurance proceeds or to fully restore the unique aspects of the
Project unless Lessee provides Lessor with the funds to cover same, or adequate
assurance thereof, within ten (10) days following receipt of written notice of
such shortage and request therefor. If Lessor receives said funds or adequate
assurance thereof within said ten (10) day period, Lessor shall complete the
repairs as soon as reasonably possible and this Lease shall remain in full force
and effect. If Lessor does not receive such funds or assurance within said
period, Lessor may nevertheless elect by written notice to Lessee within ten
(10) days thereafter to make such restoration and repair as is commercially
reasonable with Lessor paying any shortage in proceeds, in which case this Lease
shall remain in full force and effect. If in such case Lessor does not so elect,
then this Lease shall terminate sixty (60) days following the occurrence of the
damage or destruction. Lessee shall in no event have any right to reimbursement
from Lessor for any destruction.
19.3. Partial Damage -- Uninsured Loss. If Partial Damage that is not
an Insured Loss occurs, unless caused by a negligent or willful act of Lessee
(in which event Lessee
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shall make the repairs at Lessee's expense and this Lease shall continue in full
force and effect), Lessor may, at Lessor's option, either: (i) repair such
damage as soon as reasonably possible at Lessor's expense, in which event this
Lease shall continue in full force and effect, or (ii) give written notice to
Lessee within thirty (30) days after receipt by Lessor of knowledge of the
occurrence of such damage of Lessor's desire to terminate this Lease as of the
date sixty (60) days following the giving of such notice. In the event Lessor
elects to give such notice of Xxxxxx's intention to terminate this Lease, Lessee
shall have the right within ten (10) days after the receipt of such notice to
give written notice to Lessor of Xxxxxx's commitment to pay for the repair of
such damage totally at Xxxxxx's expense and without reimbursement from Lessor.
Lessee shall provide Lessor with the required funds or satisfactory assurance
thereof within thirty (30) days following Xxxxxx's said commitment. In such
event this Lease shall continue in full force and effect, and Lessor shall
proceed to make such repairs as soon as reasonably possible and the required
funds are available. If Lessee does not give such notice and provide the funds
or assurance thereof within the times specified above, this Lease shall
terminate as of the date specified in Lessor's notice to termination.
19.4. Total Destruction. Notwithstanding any other provision hereof, if
a Premises Total Destruction occurs (including any destruction required by any
authorized public authority), this Lease shall terminate sixty (60) days
following the date of such Premises Total Destruction, whether or not the damage
or destruction is an Insured Loss or was caused by a negligent or willful act of
Lessee. In the event, however, that the damage or destruction was caused by
Lessee, Lessor shall have the right to recover Xxxxxx's damages from Lessee.
19.5. Damage Near End of Term. If at any time during the last six (6)
months of the term of this Lease there is Partial Damage, whether or not an
Insured Loss, Lessor may, at Lessor's option, terminate this Lease effective
sixty (60) days following the date of occurrence of such damage by giving
written notice to Lessee of Lessor's election to do so within thirty (30) days
after the date of occurrence of such damage. Provided, however, if Lessee at
that time has an exercisable option to extend this Lease or to purchase the
Premises, then Lessee may preserve this Lease by, within twenty (20) days
following the date of occurrence of the damage, or before the expiration of the
time provided in such option for its exercise, whichever is earlier ("Exercise
Period"), (i) exercising such option and (ii) providing Lessor with any shortage
in insurance proceeds (or adequate assurance thereof) needed to make the
repairs. If Lessee duty exercises such option during said Exercise Period and
provides Lessor with funds (or adequate assurance thereof) to cover any shortage
in insurance proceeds, Lessor shall, at Lessor's expense, repair such damage as
soon as reasonably possible and this Lease shall continue in full force and
effect. If Lessee fails to exercise such option and provide such fund or
assurance during said Exercise Period, then Lessor may at Lessor's option
terminate this Lease as of the expiration of said sixty (60) day period
following the occurrence of such damage by giving written notice to Lessee of
Lessor's election to do so within ten (10) days after the expiration of the
Exercise Period, notwithstanding any term or provision in the grant of option to
the contrary.
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19.6. Abatement of Rent; Xxxxxx's Remedies.
------------------------------------
(a) In the event of damage described in Paragraph 19.2 above,
whether or not Lessor or Lessee repairs or restores the Project, and provided
that such damage or destruction was not the fault of Lessee, the Base Monthly
Rent and all other charges payable by Lessee hereunder for the period during
which such damage, its repair or restoration continues, shall be abated only to
the extent that such damage or destruction interferes with Xxxxxx's ability to
conduct business in the Premises. Except for the abatement of rent obligations
hereunder, all other obligations of Lessee hereunder shall be performed by
Xxxxxx, and Xxxxxx, shall have no claim against Lessor for any damage suffered
by reason of any such repair or restoration.
(b) If Lessor shall be obligated to repair or restore the
Project under the provisions of this Paragraph 19, and shall not commence, in a
substantial and meaningful way, the repair or restoration thereof within sixty
(60) days after such obligation shall accrue, and as a result thereof Lessee is
unable to conduct business in the Premises, Lessee may, at any time prior to the
commencement of such repair or restoration, give written notice to Lessor and to
any mortgagee or beneficiary under any mortgage or deed of trust, and any
groundlessee under any ground lease, encumbering the Project (jointly or
severalty herein, the "Lenders," or a "Lender"), of which Lessee has actual
notice, of Xxxxxx's election to terminate this Lease on a date not less than
sixty (60) days following the giving of such notice. If Lessee gives such notice
to Lessor and such Lenders and such repair or restoration is not commenced
within thirty (30) days after receipt of such notice, this Lease shall terminate
as of the date specified in said notice. If Lessor or any Lender commences the
repair or restoration of the Premises within thirty (30) days after receipt of
said notice, this Lease shall continue in full force and effect. "Commence" as
used in this Paragraph shall mean either the unconditional authorization of the
preparation of the required plans, or the beginning of the actual work on the
Premises, whichever first occurs.
19.7. Hazardous Substance Conditions. If a Hazardous Substance
Condition occurs and Xxxxxx is not responsible to remediate the same pursuant to
Paragraph 7 hereof, Lessor may, at Lessor's option, either (i) give written
notice to Lessee of Lessor's intention to fund such remediation, in which event
this Lease shall continue in full force and effect, or (ii) give written notice
to Lessee of Lessor's election to terminate this Lease as of the date sixty (60)
days following the giving of such notice. If Lessor elects to fund such
remediation as provided in (i) above, Lessor shall promptly commence the same.
If a Hazardous Substance Condition occurs and Lessee is not responsible for
remediation thereof pursuant to Paragraph 7 hereof, Lessee's obligations under
this Lease shall be abated to the same extent as provided in Paragraph 19.6
above.
19.8. Waiver Statutes. Xxxxxx and Xxxxxx agree that the terms of this
Lease shall govern the effect of any damage to or destruction of the Premises or
the Project with respect to the termination of this Lease and hereby waive the
provisions of any present or future statute to the extent inconsistent herewith.
-21-
20. ASSIGNMENT, SUBLETTING AND TRANSFERS OF OWNERSHIP.
-------------------------------------------------
20.1. No Transfer. Lessee shall not, without Xxxxxx's prior written
consent, which shall not be unreasonably withheld, assign, sell, mortgage,
encumber, convey, or otherwise transfer all or any part of Xxxxxx's leasehold
estate granted hereunder, or permit the Premises to be occupied by anyone other
than Lessee and Xxxxxx's employees, or sublet the Premises or any portion
thereof (collectively called "Transfer"). If Lessee is a partnership or a
corporation, any transfer of general partnership interests or any transfer or
issuance of stock resulting in a change in control of Xxxxxx, shall be deemed to
be an assignment hereunder.
20.2. Lessor's refusal to grant consent to any proposed Transfer shall
be deemed to have been reasonable if: (a) in the reasonable judgment of Lessor
the transferee is of a character or is engaged in a business which is not in
keeping with the standards of Lessor for the Project; (b) in the reasonable
judgment of Lessor any purpose for which the transferee intends to use the
Premises is not in keeping with the standards of Lessor for the Project;
provided in no event may any purpose for which transferee intends to use the
Premises be in violation of this Lease; (c) the portion of the Premises subject
to the transfer is not regular in shape with appropriate means of entering and
exiting, including adherence to any local, county or other governmental codes,
or is not otherwise suitable for the normal purposes associated with such a
Transfer; (d) Tenant is in default under this Lease or any other Lease with
Lessor; (e) transferee's net worth is less than the net worth of Lessee; (f) the
proposed transferee or its business is subject to compliance with additional
requirements of the law (including related regulations) commonly known as the
"Americans with Disabilities Act" beyond those requirements which are applicable
to the tenant desiring to assign or sublease; or (g) the proposed transferee is
an existing Lessee in the Project, or is an individual or entity with whom
Lessor is, at the time such transfer is proposed, negotiating for the lease of
space in the Project.
20.3. Conditions. If Lessor elects to consider any proposed assignment
or subletting by Xxxxxx, Lessor may require that, as conditions precedent to
such consideration of any proposed assignment of Xxxxxx's interest in this
Lease, or any subletting of the Premises, (i) at least thirty (30) days prior to
the proposed effective date of any such transfer, Tenant shall provide Landlord
with a statement containing (A) the name and address of the proposed sublessee
or assignee; (B) a financial statement, prepared in accordance with generally
accepted accounting principles, of the proposed assignee or sublessee containing
bank and credit references; and (C) all of the principal terms and conditions of
the proposed assignment or subletting, including, but not limited to, the
commencement and expiration dates, the rent payable, and the precise area of the
Premises subject to such assignment or subletting; (ii) Lessee shall deliver to
Lessor an original assignment or sublease executed by Xxxxxx and the proposed
assignee or sublessee which shall expressly provide (A) for the assumption by
such proposed assignee or subtenant of all of Lessee's obligations under this
Lease; (B) that Lessee shall indemnify and hold Lessor harmless from any and all
claims, obligations and liabilities (including reasonable attorneys' fees)
arising from the use or occupancy by an assignee or sublessee of the Premises;
(C) that Lessee shall further
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indemnify and hold Lessor harmless from any costs, obligations or liabilities
(including reasonable attorneys' fees) arising from any act or negligence of any
such assignee or sublessee, and from any claim, action or proceeding brought
thereon; (D) that in no event shall Lessee be deemed relieved of any obligation
or liability under this Lease; and (E) that any proposed assignment or
subletting shall not be deemed effective for any purpose unless and until
Lessor's written consent thereto is obtained; and (iii) Lessee shall deliver to
Lessor the sum of $300 as a processing fee to reimburse Lessor for the
administrative costs of reviewing such information. Lessee shall also pay
Lessor, as a condition to any sublease or assignment becoming effective, all
reasonable attorneys' fees and costs incurred in connection with such review,
along with fifty percent (50%) of any consideration received by Lessee in excess
of any consideration payable by Lessee to Lessor under this Lease, as and when
such monies are received by Lessee from its assignee or sublessee, in connection
with such assignment or subletting. Any consideration by Xxxxxx of any
particular proposed assignment or subletting shall not be deemed a waiver by
Xxxxxx of Xxxxxx's absolute right to withhold consent to, or to refuse to
consider, any proposed assignment or subletting.
20.4. No Waiver. Any consent to any Transfer which may be given by
Lessor, or the acceptance of any rent, charges or other consideration by Lessor
from Lessee or any third party, shall not constitute a waiver by Lessor of the
provisions of this Lease or a release of Lessee from the full performance by it
of the covenants stated herein; and any consent given by Lessor to any Transfer
shall not relieve Lessee (or an transferee of Lessee) from the above
requirements for obtaining the written consent of Lessor to any subsequent
Transfer.
20.5. Collection. If a default under this Lease should occur while the
Premises or any part of the Premises are assigned, sublet or otherwise
transferred, Lessor, in addition to any other remedies provided for within this
Lease or by law, may at its option collect directly from the transferee all rent
or other consideration coming due to Lessee under the Transfer and apply these
monies against any sums due to Lessor by Xxxxxx; and Xxxxxx authorizes and
directs any transferee to make payments of rent or other consideration direct to
Lessor upon receipt of notice from Lessor. No direct collection by Lessor from
any transferee should be construed to constitute a novation or a release of
Lessee or any guarantor of Lessee from the further performance of its
obligations in connection with this Lease.
21. BREACH BY XXXXXX.
----------------
21.1. Lessee shall be in material breach of this Lease if at any time
during the Lease Term:
(a) Lessee fails to make payment of any installment of Base
Monthly Rent, Additional Rent, or of any other rent herein specified to be paid
by Lessee as and when due, or fails to provide reasonable evidence of insurance
or surety bond as required under this Lease, or fails to fulfill any obligation
under this Lease and thereby threatens or endangers life or property, where any
such failure continues for a period of three (3) days following written notice
thereof; or
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(b) Lessee fails to observe or perform any of its other
covenants, agreements or obligations hereunder, and such failure is not cured
within ten (10) days after Lessor's written notice to Lessee of such failure;
provided, however, that if the nature of Lessee's obligation is such that more
than ten (10) days are required for performance, then Lessee shall not be in
breach if Lessee commences performance within such ten (10) day period and
thereafter diligently prosecutes the same to completion; or
(c) Lessee becomes insolvent, makes a transfer in fraud of its
creditors, makes a transfer for the benefit of its creditors, voluntarily files
for bankruptcy, is adjudged bankrupt or insolvent in proceedings filed against
Lessee, convenes a meeting of all or a portion of its creditors, or performs any
acts of bankruptcy or insolvency, including the selling of its assets to pay
creditors; or a receiver, trustee, or custodian is appointed for all or
substantially all of Lessee's assets; or
(d) Lessee vacates or abandons the Premises; or
(e) Any representation or warranty made by Lessee to Lessor in
connection with this transaction is or becomes untrue.
22. REMEDIES OF LESSOR.
------------------
22.1. Repossession of Premises. Upon any termination of this Lease or
of Xxxxxx's right to possession without termination of the Lease, Xxxxxx shall
surrender possession and vacate the Premises immediately and deliver possession
thereof to Lessor. Lessee hereby grants Lessor the full and free right, whether
by changing or picking locks, if necessary, to enter and repossess the Premises,
with or without process of law. Lessee releases Lessor of any liability for any
damage resulting therefrom and waives any right to claim damage for such
re-entry. Xxxxxx also agrees that Xxxxxx's right to re-lease or any other right
given to Lessor hereunder or by operation of law is not relinquished.
22.2. Termination of Lease After Breach. If Lessee breaches this Lease
before the end of the Lease Term, or if its right to possession is terminated by
Lessor because of Xxxxxx's breach of this Lease, then this Lease may be
terminated by Lessor at its option, exercised by the giving of ten (10) days
written notice to Xxxxxx. On such termination, Lessor may recover from Lessee,
in addition to any other amounts permitted by law:
(a) The worth, at the time of the award, of the unpaid Base
Monthly Rent and Additional Rent which had been earned at the time of
termination of this Lease;
(b) The worth, at the time of the award, of the amount by
which the unpaid Base Monthly Rent and Additional Rent which would have been
earned after the date of termination of this Lease until the time of the award
exceeds the amount of the loss of rents that Lessee proves could have been
reasonably avoided;
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(c) The worth, at the time of the award, of the amount by
which the unpaid Base Monthly Rent and Additional Rent for the balance of the
Lease Term after the time of award exceeds the amount of such rental loss for
such period that Xxxxxx proves could be reasonably avoided; and
(d) Any other amounts necessary to compensate Lessor for all
detriment proximately caused by Xxxxxx's breach of its obligations under this
Lease, or which in the ordinary course of events would be likely to result
therefrom. The detriment proximately caused by Xxxxxx's breach shall include,
without limitation, (i) expenses for cleaning, repairing or restoring the
Premises, (ii) expenses for altering, remodeling or otherwise improving the
Premises for the purpose of relleting, (iii) brokers' fees and commissions,
advertising costs and other expenses of relleting the Premises, (iv) costs of
carrying the Premises such as taxes, insurance premiums, utilities and security
precautions, (v) expenses in retaking possession of the Premises, (vi)
attorneys' fees and court costs, (vii) any unearned brokerage commissions paid
in connection with the Lease, (viii) parking fees or occupancy taxes due under
the Lease, (ix) reimbursement of any concessions made or paid by Lessor to or
for the benefit of Lessee in consideration of this Lease including, but not
limited to, any moving allowances, contributions or payments by Lessor for
Tenant Improvements or build-out allowances, free or reduced rent, free or
reduced parking, and/or assumptions by Lessor of any of Lessee's previous Lease
obligations.
22.3. Continuation of Lease After Breach. Notwithstanding the
foregoing, in the event Lessee has breached this Lease and abandoned the
Premises, this Lease, at Lessor's option, shall continue in full force and
effect so long as Lessor does not terminate this Lease, and in such event Lessor
may enforce ail of its rights and remedies hereunder, including, without
limitation, the right to recover rent as it becomes due. In addition, Lessor
shall not be liable in any way whatsoever for its failure or refusal to relet
the Premises. For purposes of this Subparagraph 22.3, the following acts by
Lessor shall not constitute the termination of this Lease:
(a) Acts of maintenance or preservation or efforts to relet
the Premises, including, but not limited to, alterations, remodeling,
redecorating, repairs, replacements and/or painting as Lessor shall consider
appropriate for the purpose of attempting to relet the Premises or any part
thereof; or
(b) The appointment of a receiver upon the initiative of
Xxxxxx to protect Xxxxxx's interest under this Lease or in the Premises.
22.4. Bankruptcy. In the event of bankruptcy, Lessee assigns to Lessor
all its rights, title and interest in the Premises as security for its
obligations and covenants set forth in this Lease.
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22.5. Definitions and Incidental Rights.
(a) "The worth at the time of the award" of the amounts
referred to above in Paragraphs 22.2(a) and 22.2(b), shall be computed by
allowing interest at the rate of ten percent (10%) per annum. "The worth at the
time of the award" of the amount referred to above in 22.2(c) shall be computed
by discounting the amount at the discount rate of the Federal Reserve Bank of
San Francisco in effect at the time of the award, plus one percent (1%).
(b) Any efforts by Lessor to mitigate the damages caused by
Xxxxxx's breach of this Lease shall not waive Lessor's right to recover the
damages set forth above.
(c) Nothing herein shall be construed to limit, impair or
otherwise affect other provisions of this Lease regarding Xxxxxx's right to
indemnification from Lessee for liability arising prior to the termination of
this Lease for personal injuries or property damage.
(d) No right or remedy conferred upon or reserved to Lessor in
this Lease is intended to be exclusive of any other right or remedy granted to
Lessor by statute or common law, and each and every such right and remedy shall
be cumulative.
22.6. Right to Cure. Lessor may, but shall not be obligated to, cure
any default on the part of Lessee under this Lease (whether or not such default
would entitle Lessor to terminate this Lease), at any time and without notice to
Lessee. Whenever Lessor shall so elect, all costs incurred by Lessor shall be
paid by Lessee to Lessor on demand as Additional Rent.
22.7. Lessor's Designation. If Lessee shall be in arrears in the
payment of rent, Lessee hereby irrevocably waives any right Lessee may have to
designate the items against which any payments made by or on behalf of Lessee
are to be credited, and Lessor may apply any payments made by or on behalf of
Lessee to such items as Lessor may determine, regardless of and notwithstanding
any designation or request by Lessee as to the items against which any such
payments are to be credited.
23. SURRENDER.
---------
23.1. At End of Lease Term. At the end of the Lease Term , Xxxxxx shall
surrender the Premises to Lessor, together with all additions, improvements and
other alterations thereto, in broom-clean condition and in good order and repair
except for ordinary wear and tear and damage for which Lessee is not obligated
to make repairs under this Lease. If the Lease Term ends on the Expiration Date
(rather than as a result of an early termination), then not less than thirty
(30) days prior to the end of the Lease Term, Lessee shall remove all additions,
improvements and other alterations made to the Premises by Lessee, repair all
damage to the Premises caused by such removal and restore the Premises to the
condition in
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which they were prior to the alterations so removed. Notwithstanding the
foregoing, Lessee shall leave in place any and all alterations which Lessor
requests Lessee to leave in place.
23.2. Requirements. No act or thing done by Lessor or any employee or
other agent of Lessor during the Lease Term shall be deemed to constitute an
acceptance by Xxxxxx of a surrender of all or part of the Premises unless such
an intent is specifically acknowledged in a writing duty signed by Xxxxxx;
without limiting the generality of the foregoing, the delivery of keys to the
Premises to Lessor or any employee or other agent of Lessor shall not constitute
a surrender of the Premises or effect a termination of this Lease, whether or
not the keys are thereafter retained by Lessor.
23.3. Merger. The voluntary or other surrender of this Lease by Xxxxxx,
or a mutual cancellation thereof will, at the option of Lessor, (i) either
constitute a merger of the leasehold estate into Lessor's interest(s) in the
Project, or not constitute a merger (if no written election is made, no merger
shall occur); and (i) either terminate all or any existing subleases or other
Transfers, or at the option of Lessor, operate as an assignment to it of any or
all of such Transfers.
24. ATTORNEYS FEES/COLLECTION CHARGES.
---------------------------------
24.1. Proceedings. In the event of any legal action or arbitration
proceeding between the parties hereto, reasonable attorneys' fees and
consultants' fees and expenses of the prevailing party in any such action or
proceeding shall be added to the judgment or award therein, provided, however,
that where a party files multiple causes of action against the other party, or
where there are crossclaims or counterclaims, the court or arbitrator shall
award reasonable attorneys' fees to the prevailing party only to the extent such
fees reflect services performed in connection with those causes of action on
which the prevailing party has prevailed.
24.2. Collection. If Lessor utilizes the services of any attorney for
the purpose of collecting any rent due and unpaid by Lessee or in connection
with any other breach of this Lease by Xxxxxx, Xxxxxx agrees to pay Lessor
actual attorneys' fees as determined by Lessor for such services, regardless of
the fact that no legal action may be commenced or filed by Lessor.
25. CONDEMNATION.
------------
25.1. If twenty-five percent (25%) or more of the Premises is taken for
any public or quasi-public purpose by any lawful government power or authority,
by exercise of the right of condemnation, eminent domain or other right of
appropriation, or sold to prevent such taking, Lessee or Lessor may at its
option terminate this Lease as of the effective date thereof. Lessee shall not
because of such taking, assert any claim against Lessor or the taking authority
for any compensation because of such taking, and Lessor shall be entitled to
receive the entire amount of any award without deduction for any estate or
interest of Lessee.
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If less than twenty-five percent (25%) of the Premises is taken, Lessor at its
option may terminate this Lease. If Lessor does not so elect, Lessor shall
promptly proceed to restore the Premises to substantially its same condition
prior to such partial taking, allowing for any reasonable effects of such
taking, and a proportionate allowance shall be made to Lessee for the Base
Monthly Rent corresponding to the time during which, and to the part of the
Premises which, Lessee is deprived on account of such taking and restoration.
26. RULES AND REGULATIONS.
---------------------
26.1. Lessee shall faithfully observe and comply with the Rules and
Regulations printed on or attached to this Lease and Lessor reserves the right
to modify and amend them as it deems necessary. Lessor shall not be responsible
to Lessee for the nonperformance by any other lessee or occupant of the Project
of any of said Rules and Regulations, or of any provision of such Lessee's or
occupant's lease.
27. ESTOPPEL CERTIFICATE.
--------------------
27.1. Within ten (10) days following request by Lessor from time to
time, Lessee shall execute and deliver to Lessor a certificate in writing
certifying (i) that this Lease is in full force and effect an unmodified (or if
modified, stating the nature of such modification and identifying the instrument
by which such modification arose); (ii) the amount of the Base Monthly Rent and
Additional Rent payable hereunder and the date to which rent and other charges
are paid in advance, if any; (iii) acknowledging that there are not, to Xxxxxx's
knowledge, any uncured defaults on the part of Lessor hereunder or events or
conditions that with the passage of time, the giving of notice or both would
constitute a default (or specifying such defaults if they are claimed), and (iv)
such other matters concerning this Lease and the Premises as may be requested.
Within ten (10) days following the request of Lessor, Xxxxxx shall also deliver
to Lessor financial statements of Xxxxxx and any guarantor(s) of Lessee,
prepared in accordance with generally accepted accounting principles. Any such
certificate or financial statement may be conclusively relied upon by any
prospective purchaser or encumbrancer of the Premises or the Project or any
portion thereof. Lessee's failure to deliver any such certificate or statement
within the required time shall be conclusive upon Lessee that (1) this Lease is
in full force and effect, without modification except as may be represented by
Lessor; (2) there are no uncured defaults in Lessor's performance; and (3) not
more than one (1) month's rent has been paid in advance. Lessee hereby appoints
Lessor as Xxxxxx's attorney-in-fact for the purpose of executing a certificate
on behalf of Xxxxxx setting forth the facts described in the previous sentence
if Lessee fails to deliver such certificate within the required time.
28. HOLDOVER.
--------
28.1. If Xxxxxx remains in the Premises after the Lease Expiration
Date, such continuance of possession by Lessee shall be deemed to be a
month-to-month tenancy at the sufferance of Lessor terminable on thirty (30)
days notice at any time by either party. All
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provisions of this Lease, except those pertaining to term and rent, shall apply
to the month-to-month tenancy. Lessee shall pay Base Monthly Rent in an amount
equal to one-hundred and fifty percent (150%) of all rents payable for the last
full calendar month of the regular Lease Term.
29. PROJECT REQUIREMENTS.
--------------------
29.1. In the event Lessor requires the Premises for use in conjunction
with another suite or for other reasons connected with the Project planning
program, Lessor, upon notifying Lessee in writing, shall have the right to
relocate Lessee to alternative space in the Project, at Lessor's sole cost and
expense (excluding private telephone systems which Lessee must bear the cost of
moving and installing), and the terms and conditions of this Lease shall remain
in full force and effect excepting that the Premises shall be in a new location
and the Base Monthly Rent and any Additional Rent shall be adjusted as necessary
to reflect any increase or decrease in square footage. However, if such
alternative space does not meet with Xxxxxx's approval, Lessee shall have the
right to cancel this Lease upon giving Lessor thirty (30) days' notice within
ten (10) days of receipt of Lessor's notification of such relocation. If Lessee
fails to give written notice of Xxxxxx's cancellation of this Lease within such
ten (10) day period, Lessee shall be deemed to have approved the alternative
space provided by Lessor. Should Lessee elect to cancel the Lease as provided in
this paragraph, the effective expiration date shall be the projected move-in
date of such alternative space as indicated in Lessor's written notification to
Lessee.
30. BREACH BY LESSOR/LIMITATION OF LIABILITY.
----------------------------------------
30.1. Lessor's Breach. In the event of any breach by Lessor hereunder,
Lessee shall give notice of such breach and Lessor shall have a reasonable
opportunity to cure the same. A copy of such notice shall be delivered to any
mortgagee or beneficiary under any mortgage or deed of trust encumbering the
Project, and to any groundlessor of the Project, if any such parties request
such notice, and no such notice shall be deemed effective until all such parties
are in receipt thereof.
30.2. Limitation of Liability. In the event of any actual or alleged
failure, breach or default hereunder by Xxxxxx, Xxxxxx's sole and exclusive
remedy shall be against Lessor's interest in the Project, and no principal,
agent, or representative of Lessor shall be sued, be subject to service of
process, or have a judgment obtained against him in connection with any alleged
breach or default, and no writ of execution shall be levied against the assets
of any such persons. These provisions are for the benefit of, and are
enforceable by Xxxxxx and also without limitation by any partner, shareholder,
director, officer, employee or representative of Lessor, and by their successors
in interest.
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31. SUBORDINATION.
-------------
31.1. Without the necessity of any additional documents being executed
by Xxxxxx for the purpose of effecting a subordination, and at the election of
Lessor or any mortgagee with a lien on the Project or any groundlessor with
respect to the Project, this Lease shall be subject and subordinate at all times
to (a) all groundleases or underlying leases which may now exist or hereafter be
executed affecting the Project, and (b) the lien of any mortgage or deed of
trust which may now exist or hereafter be executed in any amount for which the
Project, groundleases or underlying leases, or Lessor's interest or estate in
any of said items is specified as security. In the event that any groundlease or
underlying lease terminates for any reason or any mortgage or deed of trust is
foreclosed or a conveyance in lieu of foreclosure is made for any reason, Lessee
will, notwithstanding any subordination, attorn to and become the Lessee of the
successor in interest to Lessor, at the option of such successor in interest.
Lessee covenants and agrees to execute and deliver, upon demand by Xxxxxx and in
the form requested by Xxxxxx any additional documents evidencing the priority or
subordination of this Lease with respect to any such groundlease or underlying
leases or the lien of any such mortgage or deed of trust. Lessee hereby
irrevocably appoints Lessor as attorney-in-fact of Xxxxxx to execute, deliver
and record any such document in the name and on behalf of Xxxxxx.
32. MISCELLANEOUS PROVISIONS.
------------------------
32.1. Sale by Lessor. In the event of a sale or other conveyance by
Xxxxxx of the Project, including without limitation, a conveyance by trustee's
deed, the same shall operate to release Lessor from any Liability upon any of
the covenants or conditions, expressed or implied, herein contained in favor of
Xxxxxx, and in such event Xxxxxx agrees to look solely to the responsibility of
the successor in interest of Xxxxxx in and to this Lease. This Lease shall not
be affected by any such sale, and Xxxxxx agrees to attorn to the purchaser,
successor or assignee.
32.2. Notices. All notices, statements, demands, requests, consents,
approvals, authorizations, offers, agreements, appointments, or designations
under this Lease by either party to the other shall be in writing and shall be
considered sufficiently given and served upon the other party if delivered
personally to the attention of a partner or officer of Lessee, if Lessee is not
an individual, or if sent by certified mail, on the third day after mailing,
postage prepaid, return receipt requested, and addressed to the parties'
respective Notice Addresses. Either party may change its Notice Address in the
manner specified herein for the giving of notices. Any notice from Lessor to
Lessee may be signed and delivered by the managing agent of the Project with the
same force and effect as if signed and delivered by Xxxxxx.
32.3. Waivers. The failure of Lessor to insist in any case upon the
strict performance of any term, covenant or condition of this Lease shall not be
construed as a waiver of a subsequent breach of the same or any other covenant,
term or condition; nor
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shall any delay or omission by Lessor to seek a remedy for any breach of this
Lease or the acceptance of rent by Xxxxxx, be deemed a waiver by Lessor of its
remedies or rights with respect to such a breach. No waiver by either party
shall be deemed effective unless in writing and signed by the waiving party.
Lessee hereby waives all rights under the provisions of Sections 1932, 1933,
1941 and 1942 of the Civil Code of the State of California, and all rights under
any law in existence during the Lease Term authorizing a tenant to make repairs
at the expense of a landlord or to terminate a lease upon the complete or
partial destruction of the Premises. TO THE EXTENT PERMITTED BY LAW, XXXXXX AND
LESSEE EACH HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR OTHER
PROCEEDING, INCLUDING ANY COUNTERCLAIMS, BROUGHT BY EITHER PARTY AGAINST THE
OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE
LEASE, THE RELATIONSHIP OF LESSOR AND XXXXXX, OR LESSEE'S OCCUPANCY OR USE OF
THE PREMISES OR PROJECT.
32.4. Number and Gender. Whenever the singular number is used in this
Lease and when required by the context, the same shall include the plural, and
the masculine gender shall include the feminine and neuter genders, and the word
"person" shall include corporation, firm, partnership, or association. If there
be more than one Lessee, the obligations imposed upon Lessee under this Lease
shall be joint and several.
32.5. Headings. The headings or titles to paragraphs of this Lease are
not a part of this Lease and shall have no effect upon the construction or
interpretation of any part of this Lease.
32.6. Modifications. This instrument contains all of the agreements and
conditions made between the parties to this Lease and may not be modified orally
or in any other manner than by an agreement in writing signed by all parties to
this Lease. Xxxxxx acknowledges that neither Lessor nor Lessor's agents have
made any representation or warranty as to the suitability of the Premises to the
conduct of Xxxxxx's business. Any agreements, warranties or representations not
expressly contained herein shall in no way bind either Lessor or Lessee, and
Lessor and Lessee expressly waive all claims for damages by reason of any
statement, representation, warranty, promise or agreement, if any, not expressly
contained in this Lease.
32.7. Time. Time is of the essence of each term and provision of this
Lease.
32.8. Binding Effect. The terms and provisions of this Lease are
binding upon and inure to the benefit of the heirs, executors, administrators,
successors and assigns of Xxxxxx and Xxxxxx.
32.9. Non-Disclosure. In consideration of Xxxxxx's covenants and
agreements hereunder, Lessee hereby covenants and agrees not to disclose any
terms, covenants or conditions of this Lease to any other party without the
prior written consent of Xxxxxx.
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32.10. Consent. If Lessee shall request Lessor's consent and Lessor
shall fail or refuse to give such consent, Lessee shall not be entitled to any
damages for any withholding by Lessor of its consent; Xxxxxx's sole remedy shall
be an action for specific performance or injunction, and such remedy shall be
available only in those cases where Lessor has expressly agreed in writing not
to unreasonably withhold its consent or where as a matter of law Lessor may not
unreasonably withhold its consent.
32.11. Deposits. Lessor and Xxxxxx hereby agree that Lessor shall be
entitled to immediately endorse and cash Xxxxxx's rent, Lease Documentation Fee,
and the Security Deposit check(s) accompanying this Lease. It is further agreed
and understood that such action shall not guarantee acceptance of this Lease by
Lessor, but, in the event Lessor does not accept this Lease, such deposits
except for the Lease Documentation Fee shall be refunded in full to Lessee. This
Lease shall be effective only after Xxxxxx has received a copy fully executed by
Xxxxxx.
32.12. Governing Law. This Lease is governed by and construed in
accordance with the Laws of the state in which the Premises are located, and
venue of any suit shall be in the county where the Premises are located.
32.13. Negotiated Terms. This Lease is a result of negotiations of the
parties, each of which is knowledgeable in commercial leasing matters and each
of which has had the opportunity to be represented by counsel, and at( of the
terms have been agreed to by both Xxxxxx and Xxxxxx after prolonged
negotiations. Accordingly, any rule of law or legal decision that would require
interpretation of any provision of this Lease against the party that has drafted
it is not applicable and is waived. The provisions of this Lease shall be
interpreted in a reasonable manner to effect the purposes of the parties hereto.
32.14. Severability. If any provision of this Lease is found to be
unenforceable, all other provisions shall remain in full force and effect.
32.15. Landlord's Lien. LESSOR HEREUNDER SHALL HAVE THE BENEFIT OF, AND
THE RIGHT TO, ANY AND ALL LANDLORD'S LIENS PROVIDED UNDER THE LAW BY WHICH THIS
LEASE IS GOVERNED.
32.16. Lender Requirements. Lessee hereby consents to amendment of this
Lease as and to the extent required by any lender, provided that no such change
shall increase the rent payable under this Lease or impair Xxxxxx's occupancy or
use of the Premises.
32.17. Counterparts. This Lease may be executed in one or more
counterpart copies, and each of which, so executed, irrespective of the date of
execution and delivery, shall be deemed to be an original, and all such
counterparts together shall constitute one and the same instrument. The
signature pages of one or more of the counterpart copies may be removed from
such counterpart copies and all be attached to the same copy of this Lease
which, with all signature pages attached, shall be deemed to be an original
Lease.
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32.18. No Third-Party Benefits. Except as may be specifically provided
to the contrary, this Lease is solely to establish various rights between
parties to this Lease, and no "third-party" or other person will be entitled to
any rights or benefits from this Lease or to rely on this Lease in any way, nor
may this Lease serve as the basis of any obligation or other liability of a
party to a person who is not a party.
32.19. Survival. Any obligation of Lessor or Lessee that by its nature
or under the circumstances can only be, or by the provisions of this Lease may
be, performed after the expiration or earlier termination of the Lease Term, and
any liability for a payment or other obligation that shall have accrued or
otherwise relates to any period ending prior to or at the time of expiration or
other termination of the Lease Term, or the end of Lessee's occupancy of the
Premises if later, unless specifically otherwise provided in this Lease, shall
survive the expiration or other termination of this Lease.
32.20. No Recording. Lessee shall not record this Lease or any short
form or memorandum of this Lease.
32.21. Expansion. If during the Lease Term, Xxxxxx executes a Lease
within the Project for space larger than the Premises with a lease having a
lease term longer than that which remains on this Lease or one (1) year,
whichever is greater, with a base monthly rent amount at least equal to the Base
Monthly Rent then payable under this Lease, then this Lease shall be terminated
upon the commencement date of the lease for such new space. Notwithstanding the
foregoing, Lessee shall be obligated to pay for any adjustments in rent pursuant
to Paragraphs 3 and 4 hereof, and this obligation shall survive the termination
of this Lease.
32.22. Commissions. Xxxxxx represents and warrants to Lessor that
Xxxxxx's sole real estate broker in connection with this Lease is
________________________________, and that there are no other persons entitled
to the payment of a commission as a result of Lessee and Lessor entering into
this Lease; and Xxxxxx agrees to indemnify, protect, defend and hold Lessor
harmless from and against any claims for any commissions or other fees arising
out of a claim therefor by any other broker, finder or salesperson.
32.23. No Partnership. No provision of this Lease and no actions of the
parties hereto shall be construed to create a partnership or joint venture
between Lessor and Lessee, or make either party responsible for the debts and
losses of the other.
33. SPECIAL PROVISIONS.
------------------
33.1. Special provisions of this Lease number 34 through 35.00 are
attached hereto and made a part hereof. If none, so state in the following
space: .
IN WITNESS WHEREOF, Xxxxxx and Xxxxxx have executed this Lease as of
the day and year indicated by Xxxxxx's execution date as written below.
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Individuals signing on behalf of Lessee warrant that they have the
authority to bind their principals. In the event that Lessee is a corporation,
Xxxxxx shall deliver to Lessor, concurrently with the execution and delivery of
this Lease, a certified copy of corporate resolutions adopted by Lessee
authorizing said corporation to enter into and perform the Lease and authorizing
the execution and delivery of the Lease on behalf of the corporation by the
parties executing and delivering this Lease.
THIS LEASE, WHETHER OR NOT EXECUTED BY XXXXXX, IS SUBJECT TO ACCEPTANCE
AND EXECUTION BY XXXXXX, ACTING ITSELF OR BY ITS AGENT ACTING THROUGH ITS SENIOR
VICE PRESIDENT, VICE PRESIDENT OR REGIONAL MANAGER AT ITS HOME OFFICE.
LESSOR LESSEE
XXX PROPERTIES, INTEST CORP., A NEW JERSEY CORP.
a California General Partnership
DBA: COMMERCE PARK -
SUNNYVALE
By: R & B Commercial Management
Company, Inc. (Agent) a California
corporation
BY /s/ Xxxxx X. Xxxxxxxxxxx BY /s/ Xxxx X. Xxxxx, Xx.
---------------------------------------- --------------------------------
XXXXX X. XXXXXXXXXXX XXXX X. XXXXX, XX.
REGIONAL MANAGER CHIEF FINANCIAL OFFICER
DATE 8/16/96 DATE 8/12/96
--------------------------------------- ------------------------------
(Execution Date) (Execution Date)
BY_________________________________________ BY_________________________________
DATE_______________________________________ DATE______________________________
(Execution Date) (Execution Date)
-34-
Special Provision 34.
Lessor has instituted an Operations and Maintenance Program ("O&M") directed at
maintaining the Premises in accordance with applicable federal and state
requirements with respect to asbestos-containing materials ("ACM"). ACM exists
in the acoustical ceilings at the Project, and may also exist in the insulation,
fireproofing and floor tiles of the Project. Lessee shall at all times during
the term hereof comply strictly with all rules and regulations promulgated by
Lessor in connection with the concerning O&M and the ACM at the Project,
including without limitation the following:
(a) Lessee shall provide its contractors and employees who
work in the Project with such notices concerning ACM as are required by
California's Asbestos Notification Law (Health & Safety Code xx.xx. 25915 et
seq.), and all other federal, state and local laws. Lessee shall comply, and
cause its employees, agents, contractors and invitees to comply, with all laws
and regulations applicable to ACM, including without limitation work practice
and notification regulations in the event of any work or activities which might
disturb the ACM. Lessee shall not permit any such activities to commence or
continue without first notifying and obtaining the prior written consent of
Lessor, which may be withheld in Lessor's sole discretion. If any ACM-related
work is performed by or at the request of Lessee, Lessee shall promptly provide
Lessor with documentation establishing, as to each and every performance of such
work, that the same was performed strictly in accordance with applicable
government standards and with the requirements of this Lease.
(b) Lessee shall not take or permit any action which would in
any way damage or disturb any ACM in the Project. Xxxxxx agrees that it shall
not permit any of the ceiling or floor tiles in the Premises to be removed, cut,
drilled or otherwise pierced for any purpose, nor shall any object be permitted
to hang from or come into contact with the ceiling in the Premises. Lessee shall
not undertake any activity which would cause vibration of any ACM, nor shall
Lessee permit any water or other liquid to seep out of the Premises into the
ceiling of any other Tenant in the Project. Lessee shall not permit any repairs
or painting to be performed on or to the floors, insulation, fireproofing or
ceilings in the Premises except to the extent expressly permitted in writing by
Lessor, which permission may be withheld in Lessor's sole discretion if any such
work could have the effect of disturbing any ACM or violating the O&M.
(c) Lessee shall notify Lessor immediately in the event Lessee
becomes aware of any violation of the provisions described in Paragraph (b)
above, and/or if any part of the ceiling, floor, fireproofing or insulation
shows signs of any damage, including without limitation, leaking, discoloration,
cracking, dislodged material, shredding or any other damage or wear.
-35-
Special Provision 35.
Trash Removal shall mean the sum of $31.00 per month, which is in addition to
the monthly rent. Lessor, at its option, can throughout the term of this Lease
adjust the portion of rent applied to trash removal when there is an adjustment
in the fee charged for such removal.
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EXHIBIT A
[Diagram of property location]
EXHIBIT A-1
[Diagram of Leased Office Space]
EXHIBIT B
A. AGREEMENT
A.1 Lessor and Xxxxxx agree to the construction of improvements in the
Premises according to the terms and conditions of the Lease, EXHIBIT
"A", and this EXHIBIT "B"
A.2 Lessor will provide Lessee with final detailed plans and specifications
of all proposed improvements on or before contained herein.
A.3 Lessee will return to Lessor a copy of said final detailed plans and
specifications EXHIBIT "A1" approved by Lessor on or before August 15,
1996, subject to the provisions of paragraph D.1 DELAYS of this EXHIBIT
"B".
A.4 Any changes required by Lessee to final plans and specifications
previously approved by both Lessor and Lessee, shall be approved by
Lessor at its sole discretion, subject to the provisions of paragraph
D.1 of this EXHIBIT "B".
A.5 Lessor will complete all final proposed improvements to the best of its
ability on or before September 30, 1996 subject to the provisions of
paragraph D.2 DELAYS of this EXHIBIT "B".
B. LESSEE PAID IMPROVEMENTS
None
C. METHOD OF PAYMENT
C.1 ________________________ are to be paid by Lessee to Lessor subject to
the provisions of E.3 of this EXHIBIT "B" in the manner stated below:
D. DELAYS
D.1 Should Lessee not submit approved final plans and specifications to
Lessor by the date indicated in paragraph A.3 of this EXHIBIT "B",
Lessor will not be subject to any
-1-
liability and the validity of this Lease will not be affected in any
way. However, Xxxxxx also reserves the right at its sole discretion, to
terminate this Lease.
D.2 The commencement of rent on the date specified in paragraph 1.6 of this
Lease will not be postponed or waived and Lessor will not be subject to
any liability if:
(1) Lessee is the cause of any delay in construction. By
way of example, including but not limited to:
Xxxxxx's request for a delay; the installation of
lessee's trade fixtures and/or equipment; Xxxxxx's
request for additional improvements after plans and
specifications have been approved as described in
paragraph A.3,
(2) Lessor is unable to complete all improvements by the
date indicated in A.5 of this EXHIBIT "B" due to
circumstances beyond Lessor's reasonable control,
including but not limited to: requirements by and
governing authority; shortages; strikes; material
delivery delays; or acts of God.
E. ADDITIONAL COSTS
E.1 Any changes required by any governing authority to Lessee approved
final plans and specifications to conform to local, state or federal
laws will be at the sole cost of Lessee, in addition to any other
previously agreed upon improvement costs, if such changes are
determined to be for the Lessee's special use and not part of the
general requirements of Lessor to lease space at the Project, in
accordance with the provisions of paragraph E.3 of this EXHIBIT "B".
E.2 Should any changes to previously approved plans and specifications be
required by Lessee:
(1) the cost of such revised final plans and
specifications shall be at the sole cost of Lessee;
(2) the cost of any changes resulting from such revised
plans and specifications shall be at the sole cost
and expense of Lessee; and such charges shall be
subject to the provisions of paragraphs D and E.3 of
this EXHIBIT "B".
E.3 Any additional costs including costs of revised construction drawings,
incurred as a result of the changes described in paragraphs E.1 and E.2
above, or if for any other reason the actual costs of improvements
exceed Xxxxxx's estimated improvement costs, such costs or expenses
shall be paid by Lessee to Lessor immediately upon receipt by Lessee of
Lessor's itemized notice.
-2-
X. XXXXXX'X PAID IMPROVEMENTS
F.1 Lessor at its sole cost will provide the following improvements:
(1) Repair mini-blinds.
(2) Paint warehouse floor. Area to be painted to be
cleared by Lessee prior to commencement of work.
(3) Air balance HVAC; re-direct airflow from warehouse to
office area if air flow is found to be insufficient
to satisfy office requirement.
All work to be done during normal business hours.
Should Xxxxxx's scope of work change due to Xxxxxx's request, any
additional improvements and cost will be at the sole cost of Lessee.
-3-
EXHIBIT C
SUITE ACCEPTANCE LETTER
Pursuant to the Lease between the undersigned Lessor and
Lessee dated _______________________, the undersigned Lessee hereby accepts
those certain Premises known as Suite __________________ located in the
_________________________________ Project at
____________________________________________, and acknowledges the following:
1. The Premises comprises approximately _____________________
(rentable/usable) square feet.
2. Lessee's Proportionate Share is _____________________%.
3. Base Monthly Rent shall commence at
_________________________ per month on _______________________________.
4. The Commencement Date is _____________________; the Lease
shall expire on ______________________.
LESSOR:
DBA:
By: R&B Commercial Management
Company, Inc. (Agent)
a California corporation
By:_____________________________
Its:____________________________
LESSEE:
-4-
EXHIBIT D
SIGN CRITERIA - COMMERCE PARK SUNNYVALE
This criteria establishes the uniform policies for all Lessee sign
identification within Commerce Park Sunnyvale. This criteria has been
established for the purpose of maintaining the overall appearance of the park.
Conformance will be strictly enforced. Any sign installed that does not conform
to the sign criteria will be brought into conformity at the expense of the
Lessee.
A. General Requirements:
1. A drawing of the size and shape of the approved sign is shown
below. All sign costs shall be paid for by Lessee.
2. Lessor shall approve all copy and/or logo design prior to the
installation of the sign.
3. Lessor shall direct the placement of all Lessee signs and the
method of attachment to the building.
4. Lessee shall be responsible for the fulfillment of all
requirements for this criteria.
B. General Specifications:
1. The sign's dimensions shall be 11 1/4" high by 48" wide and
the sign shall be of kiln dried redwood, sandblasted
technique, painted with the Lessor approved paint standards.
2. Lessee shall be allowed one sign regardless of size of
occupancy.
3. All sign lettering and Lessor approved logo shall be no larger
than four inches in height. The color of lettering, border and
logo is to be as approved by Lessor. No other color shall be
allowed.
4. No electrical or audible signs will be allowed.
5. Upon removal of any sign, any damage to the building will be
repaired by Xxxxxx and at the sole cost of Lessee.
6. Except as provided herein. no advertising placards, banners,
pennants, names, insignia, trademarks, or other descriptive
material shall be affixed or maintained upon any automated
machine, glass panes of the building, landscaped areas,
streets or parking areas.
7. Signs may be purchased through the approved sign manufacturing
companies listed below:
CAD CRAFTERS 000-000-0000
-5-
C. Color Specifications
1. Interior and Sides of sign to be Xxxxxxxx Paint - Charcoal
Color (KX55Y-1-GY36-F5Y-1/5-4732).
2. Front Border Trim and letters to be Xxxxxxxx Paint - Off White
Color (C1Y-H10-J18L21Y-24D).
-6-
EXHIBIT E
RULES AND REGULATIONS
1. SIGNS/WINDOWS
All Lessee identification signs shall be approved by Lessor and shall
be at Lessee's expense. No sign, placard, picture, advertisement, name
or notice shall be attached to any part of the outside of any Premises
other than as described in Exhibit "C" of this Lease and if so placed
Lessor shall have the right to remove any such sign, placard, picture,
advertisement, name or notice at Lessee's expense.
Lessee shall not place nor allow anything to be placed near the glass
of any window, door, partition or wall which may appear unsightly from
outside the leased Premises, nor conflict with the above.
Lessor will provide a standard drape, blind or window covering that
shall not be altered or removed by Xxxxxx.
Lessee is responsible to keep windows washed, inside and/or out. No
awning or shade shall be affixed or installed over or in the windows or
the exterior of the premises.
2. COMMON AREA/ROOF
Area used in common by lessees shall be subject to such regulations as
Lessor may prescribe.
The sidewalks, entrances and exits, hall passages and stairways, if
any, shall not be obstructed or used by Lessee for any purpose other
than for ingress and egress. The hall passages, exits, entrances,
stairways and roofs are not for the use of the general public and
Lessor shall in all cases retain the right to control and prevent
access thereto by all persons whose presence in the judgement of the
Lessor shall be prejudicial to the safety, character, reputation and
interests of the premises and lessees, provided that nothing herein
contained shall be construed to prevent such access to persons with
whom Lessee normally deals in the ordinary course of Lessee's business
unless such persons are engaged in illegal activities. Neither Lessee
nor employees or invitees of Lessee shall go upon the roof of any
building of the Project.
3. RESTROOM FACILITIES
The washrooms and restrooms and appurtenances thereto shall not be used
for any other use than those for which they were constructed. No
sweepings, rubbish, rags or
-7-
other foreign substances shall be thrown or placed therein. No person
shall waste water by interfering or tampering with the faucets. Any
damage in washrooms or restrooms or appurtenances shall be paid for by
the Lessee who, or whose agents, guests, or employees, shall cause such
damage.
4. DAMAGE
Walls, floors and ceilings shall not be defaced in any way and no one
shall be permitted to mark, nail, screw or drill into surfaces, paint
or in any way mar the Project surfaces. Pictures, certificates,
licenses and similar items normally used in Lessee's Premises may be
carefully attached to the walls by Xxxxxx in a manner to be prescribed
by the Lessor. Upon removal of such items by Lessee, any damage to the
walls or other surfaces shall be repaired by Lessee.
5. FURNITURE, SAFES/MOVING
Furniture, freight, equipment, safes or other bulky articles shall be
moved into or out of the Project only in the manner and at such times
as Lessor may direct. Lessee shall not overload the floor of the
Premises or in any way deface the Premises or any part thereof. Lessor
shall in all cases have the right to determine or limit the weight,
size and position of all safes and other heavy equipment. Lessor will
not be responsible for loss or damage to any safe or other property of
Lessee from any cause. All damage done to the Premises or Project by
moving or maintaining any such safe or other property shall be repaired
at the expense of Lessee.
6. JANITORIAL SERVICE
Should Lessor provide janitorial services under this Lease, such
janitorial services shall include ordinary dusting, cleaning and normal
vacuuming by the janitor assigned to such work and shall not include
cleaning of carpets, rugs, or moving of furniture or other special
services. Lessee shall not cause any unnecessary labor by reason of
Xxxxxx's carelessness or indifference in the preservation of good order
and cleanliness. Lessor shall not be responsible to Lessee for any loss
of property from the premises, however occurring or for any damage done
to the effects of Lessee by the janitor or any other employee.
Any persons employed by any lessee to do janitorial work shall, while
in the Project but outside of the Premises, be subject to and under the
control and direction of the manager of the Project (but not as an
agent or servant of said manager of the Project), and Xxxxxx shall be
responsible for all acts of such persons.
-8-
7. NUISANCES
Lessee shall not use, keep or permit to be used or kept, any foul or
noxious gas or substance in the Premises, or permit or suffer the
Premises to be occupied or used in a manner offense or objectionable to
Lessor or other lessees of the Project by reason of noise, odors and/or
vibrations, or interfere in any way with other lessees or those having
business therein nor shall any animals or birds be brought in or kept
in or about the Premises or the Project. Lessee shall maintain the
leased Premises free from mice, bugs, and ants attracted by food, water
or storage materials.
8. USE OF PREMISES
The leased Premises shall not be used for lodging, sleeping or cooking
or for any immoral or illegal purpose or for any purpose that will
damage the Premises or the reputation thereof or for any purpose other
than that specified in the Lease covering the Premises.
9. DANGEROUS ARTICLES
Lessee shall not use or keep in the Premises or common areas any
kerosene, gasoline or inflammable or combustible fluid or material, or
any article deemed extra hazardous on account of fire or other
dangerous properties or use any other method of heating or air
conditioning other than supplied by Lessor.
10. WIRING
No electric wires, or any other electrical apparatus, or additional
electrical outlets, shall be installed except with written request to
and written approval from Lessor. Any installation of such wiring shall
be removed by Lessor at Lessee's expense. Lessor reserves the right to
enter upon the leased Premises for the purpose of installing additional
electrical wiring and other utilities for the benefit of the Lessee or
other lessees.
11. SECURITY PRECAUTIONS
All doors of the premises shall be kept closed during normal business
hours and securely locked after business hours except for normal
ingress and egress. Lessee must observe strict care and caution that
all water faucets or any other apparatus is shut off when not in normal
use and before Lessee's employees leave the Premises, and that all
electricity, gas, etc. shall likewise be carefully shut off so as to
prevent waste or damage.
-9-
12. IMPROPER CONDUCT
Lessor reserves the right to exclude or expel from the Project any
person who in the judgement of the Lessor, is intoxicated or under the
influence of liquor or drugs or who shall in any manner do any act in
violation of the Rules and Regulations of said Project.
13. XXXXXX REQUESTS/NOTICES
Employees of Lessor shall not perform any work for Lessee unless under
special instruction from Lessor. Lessee shall give Lessor prompt notice
of any defects in the water, sewage, gas pipes, electrical lights and
fixtures, heating apparatus, or any other service equipment. No
employee of Lessor will admit any person other than Lessee to the
leased Premises without specific written notification by Xxxxxx to
Lessor.
14. SOLICITATIONS
Lessee shall not disturb, solicit or canvass any occupant of the
Project and shall cooperate to prevent same.
15. ADVERTISING
Lessee shall not use the name of the Project in connection with or in
promoting or advertising the business of Lessee except as a part of
Xxxxxx's address. Lessor shall have the right to prohibit the use of
the name of the Project or other publicity by Xxxxxx which in Xxxxxx's
opinion tends to impair the reputation of the Project or its
desirability to other lessees. Lessee will refrain from or discontinue
such publicity upon notification by Xxxxxx.
16. PARKING
The parking areas within the Project shall be used solely for the
parking of passenger vehicles during normal office hours. The parking
of trucks, trailers, recreational vehicles and campers is specifically
prohibited. Lessee agrees that vehicles of Lessee or its employees or
agents shall not park in driveways nor occupy parking spaces or other
areas reserved for any use such as Visitors, Delivery, Loading, or
other lessees. No vehicle of any type shall be stored in the parking
areas at any time. In the event that a vehicle is disabled it shall be
removed within 48 hours, or if abandoned, Lessor reserves the right to
remove same at Xxxxxx's expense. There shall be no "For Sale" or other
advertising signs on or about any parked vehicle. All vehicles shall be
parked in the designated parking areas in conformation with all signs
and other markings. In the event that common area parking facilities
become overburdened, Lessor reserves the right to take whatever steps
are necessary to relieve such
-10-
overburdening. Under no circumstances shall automobiles, trucks or any
similar vehicles be parked within the Premises.
17. AUCTION
No auction, public or private, will be permitted.
18. KEYS
Lessee must upon the termination of Xxxxxx's tenancy return to Lessor
all keys either furnished to or otherwise procured by Xxxxxx. In the
event of the loss of any keys so furnished, Lessee shall pay to Lessor
the cost thereof.
19. EXTERIOR
Lessee shall not place any improvement or moveable objects including
antennas, outside furniture, etc. in the parking areas, landscaped area
or other areas outside of the leased Premises, or on the roof of any
building of the Project.
Lessee shall not deposit pallets, crates or other debris outside truck
doors or along the outside walls of any building or in the driveway
areas. Lessor may at Lessor's discretion dispose of any such debris as
Lessor deems necessary.
All trash is to be deposited in the trash receptacles. Should Lessee
deposit trash in any area other than those designated, Lessee will be
charged for its removal.
-11-
