STANDARD INDUSTRIAL LEASE - GROSS
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
1. Parties.
This Lease, dated, for reference purposes only, July 30, 1998 is made
by and between XXXXXX MANAGEMENT (herein called "Lessor") and iPrint Inc.
(herein called "Lessee").
2. Premises.
Lessor hereby leases to Lessee and Lessee leases from Lessor for the
term, at the rental, and upon all of the conditions set forth herein, that
certain real property situated in the County of San Mateo, State of California
commonly known as 0000 XXXXXXX XXXXX, XXXXXXX XXXX, XX 00000 and described as
APPROXIMATELY 9,685 SQUARE FEET OF COMMERCIAL SPACE. Said real property
including the land and all improvements therein, is herein called "the
Premises".
3. Term.
3.1 Term. The term of this Lease shall be for THREE (3) YEARS
commencing on OCTOBER 1, 1998 and ending on September 30, 2001, unless sooner
terminated pursuant to any provision hereof.
3.2 Delay in Possession. Notwithstanding said commencement date, if for
any reason Lessor cannot deliver possession of the Premises to Lessee on said
date, Lessor shall not be subject to any liability therefor, nor shall such
failure affect the validity of this Lease or the obligations of Lessee hereunder
or extend the term hereof, but in such case, Lessee shall not be obligated to
pay rent until possession of the Premises is tendered to Lessee; provided,
however, that if Lessor shall not have delivered possession of the Premises
within sixty (60) days from said commencement date, Lessee may, at Lessee's
option, by notice in writing to Lessor within ten (10) days thereafter, cancel
this Lease, in which event the parties shall be discharged from all obligations
hereunder; provided further, however, that if such written notice of Lessee is
not received by Lessor within said ten (10) day period, Lessee's right to cancel
this Lease hereunder shall terminate and be of no further force or effect.
3.3 Early Possession. If Lessee occupies the Premises prior to said
commencement date, such occupancy shall be subject to all provisions hereof,
such occupancy shall not advance the termination date. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS LEASE, PRIOR TO THE COMMENCEMENT DATE, LESSEE
MAY ENTER THE PREMISES TO INSTALL EQUIPMENT, TELEPHONE SYSTEMS, TRADE FIXTURES,
ALL CABLES AND WIRES NECESSARY FOR LESSEE'S BUSINESS, AND TO CONSTRUCT LESSEE
IMPROVEMENTS. LESSEE'S ENTRY SHALL NOT ACCELERATE THE COMMENCEMENT DATE.
4. Rent.
Lessee shall pay to Lessor as rent for the Premises, monthly payments
of $** advance, on the FIRST day of each month of the term hereof. Lessee shall
pay Lessor upon the execution
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hereof $** as rent for ** AS OF 10/01/98 FIRST YEARS RENT SHALL BE $9,685 PER
MONTH; AS OF 10/01/99 SECOND YEARS RENT SHALL BE $10,653.50 PER MONTH; AS OF
10/01/00 THIRD YEARS RENT SHALL BE $11,622.00 PER MONTH. Rent for any period
during the term hereof which is for less than one month shall be a pro rata
portion of the monthly installment. Rent shall be payable in lawful money of
the United States to Lessor at the address stated herein or to such other
persons or at such other places as Lessor may designate in writing.
5. Security Deposit.
Lessee shall deposit with Lessor upon execution hereof $9,685.00 as
security for Lessee's faithful performance of Lessee's obligations hereunder. If
Lessee falls to pay rent or other charges due hereunder, or otherwise defaults
with respect to any provision of this Lease, Lessor may use, apply or retain all
or any portion of said deposit for the payment of any rent or other charge in
default or for the payment of any other sum to which Lessor may become obligated
by reason of Lessee's default, or to compensate Lessor for any loss or damage
which Lessor may suffer thereby. If Lessor so uses or applies all or any portion
of said deposit, Lessee shall within ten (10) days after written demand therefor
deposit cash with Lessor in an amount sufficient to restore said deposit to the
full amount herein above stated and Lessee's failure to do so shall be a
material breach of this Lease. If the monthly rent shall, from time to time,
increase during the term of this Lease, Lessee shall thereupon deposit with
Lessor additional security deposit so that the amount of security deposit held
by Lessor shall at all times bear the same proportion to current rent as the
original security deposit bears to the original monthly rent set forth in
paragraph 4 hereof. Lessor shall not be required to keep said deposit separate
from its general accounts. If Lessee performs all of Lessee's obligations
hereunder, said deposit, or so much thereof as has not theretofore been applied
by Lessor, shall be returned, without payment of interest or other increment for
its use, to Lessee (or, at Lessor's option, to the last assignee, if any, of
Lessee's interest hereunder) at the expiration of the term hereof, and after
Lessee has vacated the Premises. No trust relationship is created herein between
Lessor and Lessee with respect to said Security Deposit.
6. Use.
6.1 Use. The Premises shall be used and occupied only for EXECUTIVE AND
ADMINISTRATIVE OFFICES, SALES TRAINING AND FOR ANY ANCILLARY USE THEREOF or any
other use which is reasonably comparable and for no other purpose.
6.2 Compliance with Law. Lessee shall, at Lessee's expense, comply
promptly with all applicable statutes, ordinances, rules, regulations, orders,
covenants and restrictions of record, and requirements in effect during the term
or any part of the term hereof, regulating the use by Lessee of the Premises.
Lessee shall not use nor permit the use of the Premises in any manner that will
tend to create waste or a nuisance or, if there shall be more than one tenant in
the building containing the Premises, shall tend to disturb such other tenants.
6.3 CONDITION OF PREMISES. LESSEE IS TAKING PREMISES IN ITS PRESENT
CONDITION WITH THE EXCEPTION THAT THE LESSOR WARRANTS THE HVAC UNITS,
ELECTRICAL, PLUMBING ARE IN NORMAL WORKING CONDITION IN ITS PRESENT
CONFIGURATION AS OF THE DATE OF EARLY POSSESSION. LESSOR SHALL DELIVER TO
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LESSEE, THE ENTIRE PREMISES IN BROOM CLEAN CONDITION, FREE FROM DEBRIS AND
WASTE. LESSOR ALSO REPRESENTS THAT ALL PORTIONS OF THE ROOF, ROOF STRUCTURES AND
SUPPORTS AND ALL STRUCTURAL PORTIONS OF THE PREMISES ARE IN GOOD OPERATING
CONDITION AS OF THE EARLY POSSESSION DATE.
7. Maintenance, Repairs and Alterations.
7.1 Lessor's Obligations. Subject to the provisions of Paragraphs 6,
7.2, and 9 and except for damage caused by any negligent or intentional act or
omission of Lessee, Lessee's agents, employees, or invitees in which event
Lessee shall repair the damage. Lessor, at Lessor's expense, shall keep in good
order, condition and repair; the foundations, INTERIOR LOAD BEARING, WALLS AND
COLUMNS (EXCEPT AS DAMAGED BY LESSEE, LESSEE'S AGENTS, EMPLOYEES, OR INVITEES),
exterior walls and the exterior roof, INTERNAL ROOF SUPPORT STRUCTURE of the
Premises. Lessor shall not, however, be obligated to paint such exterior, nor
shall Lessor be required to maintain the interior surface of exterior walls,
windows, doors or plate glass. Lessor shall have no obligation to make repairs
under this Paragraph 7.1 until a reasonable time after receipt of written notice
of the need for such repairs.
7.2 Lessee's Obligations.
(a) Subject to the provisions of Paragraphs 6, 7.1 and 9,
Lessee, at Lessee's expense, shall keep in good order, condition and repair the
Premises and every part thereof (whether or not the damaged portion of the
Premises or the means of repairing the same are reasonably or readily accessible
to Lessee) including, without limiting the generality of the foregoing, all
plumbing, heating, air conditioning, (Lessee shall procure and maintain, at
Lessee's expense, an air conditioning system maintenance contract) ventilating,
electrical and lighting facilities and equipment within the Premises, fixtures,
interior walls and interior surface of exterior walls, ceilings, windows, doors,
plate glass, and skylights, located within the Premises, and signs located in
the Premises.
(b) If Lessee fails to perform Lessee's obligations under this
Paragraph 7.2 or under any other Paragraph of this Lease, Lessor may at Lessor's
option enter upon the Premises after 10 days' prior written notice to Lessee
(except in the case of emergency, in which case no notice shall be required).
perform such obligations on Lessee's behalf and put the Premises in good order,
condition and repair, and the cost thereof together with interest thereon at the
maximum rate then allowable by law shall be due and payable as additional rent
to Lessor together with Lessee's next rental installment. NOTWITHSTANDING
ANYTHING TO THE CONTRARY, IF LESSEE, AFTER TEN DAYS WRITTEN NOTIFICATION FROM
THE LESSOR, HAS BEGUN TO MAKE THE REPAIRS AND IS DILIGENTLY WORKING TO CORRECT
THE PROBLEM, OR SUCH LONGER PERIOD OF TIME AS IS REASONABLY NECESSARY IF THE
REPAIR CANNOT BE COMPLETED WITHIN THE THIRTY (30) DAY PERIOD WILL DELAY LESSOR'S
OPTION AS DESCRIBED ABOVE.
(c) On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the Premises to Lessor in the same condition
as received (ordinary wear and tear, AND DAMAGE BY CASUALTY, ACTS OF GOD, OR THE
ELEMENTS AND CONDEMNATION EXCEPTED) clean and free
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of debris. Lessee shall repair any damage to the Premises occasioned by the
installation or removal of its trade fixtures, furnishings and equipment.
Notwithstanding anything to the contrary otherwise stated in this Lease,
Lessee shall leave the air lines, power panels, electrical distribution
systems, lighting fixtures, space heaters, air conditioning, and plumbing on
the Premises in normal operating condition.
7.3 Alterations and Additions.
(a) Lessee shall not, without Lessor's prior written
consent make any alterations, improvements, additions, or Utility
Installations in, on or about the Premises, except for non structural
alterations not exceeding $5,000 in cumulative costs during the term of this
Lease. In any event, whether or not in excess of $5,000 in cumulative cost,
Lessee shall make no change or alteration to the exterior of the Premises nor
the exterior of the building(s) on the Premises without Lessor's prior
written consent. As used in this Paragraph 7.3 the term "Utility
Installation" shall mean carpeting, window coverings, air lines, power
panels, electrical distribution systems, lighting fixtures, space heaters,
air conditioning, plumbing, and fencing. Lessor may require Lessee to
provide Lessor, at Lessee's sole cost and expense, a lien and completion bond
in an amount equal to one and one-half times the estimated cost of such
improvements, to insure Lessor against any liability, for mechanic's and
material men's liens and to insure completion of the work. Should Lessee make
any alterations, improvements, additions or Utility Installations without the
prior approval of Lessor, Lessor may require that Lessee remove any or all of
the same.
(b) Any alterations, improvements, additions or Utility
Installations in, or about the Premises that Lessee shall desire to make and
which requires the consent of the Lessor shall be presented to Lessor in written
form, with proposed detailed plans. If Lessor shall give its consent, the
consent shall be deemed conditioned upon Lessee acquiring a permit to do so from
appropriate governmental agencies, the furnishing of a copy thereof to Lessor
prior to the commencement of the work and the compliance by Lessee of all
conditions of said permit in a prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or
materials furnished or alleged to have been furnished to or for Lessee at or for
use in the Premises, which claims are or may be secured by any mechanics' or
material men's lien against the Premises or any interest therein. Lessee shall
give Lessor not less than ten (10) days' notice prior to the commencement of any
work in the Premises, and Lessor shall have the right to post notices of
non-responsibility in or on the Premises as provided by law. If Lessee shall, in
good faith, contest the validity of any such lien, claim or demand, then Lessee
shall, at its sole expense defend itself and Lessor against the same and shall
pay and satisfy any such adverse judgment that may be rendered thereon before
the enforcement thereof against the Lessor or the Premises, upon the condition
that if Lessor shall require, Lessee shall furnish to Lessor a surety bond
satisfactory to Lessor in an amount equal to such contested lien claim or demand
indemnifying Lessor against liability for the same and holding the Premises free
from the effect of such lien or claim. In addition, Lessor may require Lessee to
pay Lessor's attorneys fees and costs in participating in such action if Lessor
shall decide it is to its best interest to do so.
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(d) all alterations, improvements, additions and Utility
Installations (whether or not such Utility Installations constitute trade
fixtures of Lessee), which may be made on the Premises, shall become the
property of Lessor and remain upon and be surrendered with the Premises at the
expiration of the term. Notwithstanding the provisions of this Paragraph 7.3(d),
Lessee's machinery and equipment, other than that which is affixed to the
Premises so that it cannot be removed without material damage to the Premises,
shall remain the property of Lessee and may be removed by Lessee subject to the
provisions of Paragraph 7.2(c).
8. Insurance; Indemnity.
8.1 Liability Insurance - Lessee. Lessee shall, at Lessee's expense,
obtain and keep in force during the term of this Lease a policy of Combined
Single Limit Bodily Injury, and Property Damage Insurance insuring Lessee and
Lessor against any liability arising out of the use, occupancy or maintenance of
the Premises and all other areas appurtenant thereto. Such insurance shall be in
an amount not less than $1,000,000 per occurrence. The policy shall insure
performance by Lessee of the indemnity provisions of this Paragraph 8. The
limits of said insurance shall not, however, limit the liability of Lessee
hereunder.
8.2 Liability Insurance - Lessor. Lessor shall obtain and keep in force
during the term of this Lease a policy of Combined Single Limit Bodily Injury
and Property Damage Insurance, insuring Lessor, but not Lessee, against any
liability arising out of the ownership, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto in an amount not less than $1,000,000
per occurrence.
8.3 Property Insurance. Lessor shall obtain and keep in force during
the term of this Lease a policy or policies of insurance covering loss or damage
to the Premises, but not Lessee's fixtures, equipment or tenant improvements in
an amount not to exceed the full replacement value thereof, as the same may
exist from time to time, providing protection against all perils included within
the classification of fire, extended coverage, vandalism, malicious mischief,
flood (in the event same is required by a lender having a lien on the Premises)
special extended perils ("all risk", as such term is used in the insurance
industry) but not plate glass insurance.
8.4 Payment of Premium Increase.
(a) Lessee shall pay to Lessor, during the term hereof, in
addition to the rent, the amount of any increase in premiums for the insurance
required under Paragraphs 8.2 and 8.3 ITS PRO RATA SHARE OF SUCH PREMIUM
INCREASE over and above such premiums paid during the Base Period, as
hereinafter defined, whether such premium increase shall be the result of the
nature of Lessee's occupancy, any act or omission of Lessee, requirements of the
holder of a mortgage or deed of trust covering the Premises, increased
evaluation of the Premises, or general rate increases. In the event that the
Premises have been occupied previously, the words "Base Period" shall mean the
last twelve months of the prior occupancy. In the event that the Premises have
never been previously occupied, the premiums during the "Base Period" shall be
deemed to be the lowest premiums reasonably obtainable for said insurance
assuming the most nominal use of the Premises. Provided, however, in lieu of the
Base Period, the parties may insert a dollar amount at the end of this sentence
which figure shall be considered as the insurance premium for
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the Base Period: BASE YEAR 1998. In no event, however, shall Lessee be
responsible for any portion of the premium cost attributable to liability
insurance coverage in excess of $5,000,000 procured under paragraph 8.2.
(b) Lessee shall pay any such premium increases to Lessor
within 30 days after receipt by Lessee of a copy of the premium statement or
other satisfactory evidence of the amount due. If the insurance policies
maintained hereunder cover other improvements in addition to the Premises,
Lessor shall also deliver to Lessee a statement of the amount of such increase
attributable to the Premises and showing in reasonable detail, the manner in
which such amount was computed. If the term of this Lease shall not expire
concurrently with the expiration of the period covered by such insurance,
Lessee's liability for premium increases shall be prorated on an annual basis.
(c) If the Premises are part of a larger building, then Lessee
shall not be responsible for paying any increase in the property insurance
premium caused by the acts or omissions of any other tenant of the building of
which the Premises are a part.
8.5 Insurance Policies. Insurance required hereunder shall be in
companies holding a "General Policyholders Rating" of at least B plus, or such
other rating as may be required by a lender having a lien on the Premises, as
set forth in the most current issue of "Best's Insurance Guide". Lessee shall
deliver to Lessor copies of policies of liability insurance required under
Paragraph 8.1 or certificates evidencing the existence and amounts of such
insurance. No such policy shall be cancelable or subject to reduction of
coverage or other modification except after thirty (30) days' prior written
notice to Lessor. Lessee shall, at least thirty (30) days prior to the
expiration of such policies, furnish Lessor with renewals or "binders" thereof,
or Lessor may order such insurance and charge the cost thereof to Lessee, which
amount shall be payable by Lessee upon demand. Lessee shall not do or permit to
be done anything which shall invalidate the insurance policies referred to in
Paragraph 8.3.
8.6 Waiver of Subrogation. Lessee and Lessor each hereby release and
relieve the other, and waive their entire right of recovery against the other
for loss or damage arising out of or incident to the perils insured against
under paragraph 8.3, which perils occur in, on or about the Premises, whether
due to the negligence of Lessor or Lessee or their agents, employees,
contractors and/or invitees. Lessee and Lessor shall, upon obtaining the
policies of insurance required hereunder, give notice to the insurance carrier
or carriers that the foregoing mutual waiver of subrogation is contained in this
Lease.
8.7 Indemnity. Lessee shall indemnify and hold harmless Lessor from and
against any and all claims arising from Lessee's use of the Premises, or from
the conduct of Lessee's business or from any activity, work or things done,
permitted or suffered by Lessee in or about the Premises or elsewhere and shall
further indemnify and hold harmless Lessor from and against any and all claims
arising from any breach or default in the performance of any obligation on
Lessee's part to be performed under the terms of this Lease, or arising from any
negligence of the Lessee, or any of Lessee's agents, contractors, or employees,
and from and against all costs, attorney's fees, expenses and liabilities
incurred in the defense of any such claim or any action or proceeding brought
thereon; and in case any action or proceeding be brought against Lessor by
reason of any such claim, Lessee upon notice from Lessor shall defend the same
at Lessee's
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expense by counsel satisfactory to Lessor. Lessee, as a material
part of the consideration to Lessor, hereby assumes all risk of damage to
property or injury to persons, in, upon or about the Premises arising from any
cause and Lessee hereby waives all claims in respect thereof against Lessor.
8.8 Exemption of Lessor from Liability. Lessee hereby agrees that
Lessor shall not be liable for injury to Lessee's business or any loss of income
therefrom or for damage to the goods, wares, merchandise or other property of
Lessee, Lessee's employees, invitees, customers, or any other person in or about
the Premises, nor shall Lessor be liable for injury to the person of Lessee,
Lessee's employees, agents or contractors, whether such damage or injury is
caused by or results from fire, steam, electricity, gas, water or rain, or from
the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, or from any other
cause, whether the said damage or injury results from conditions arising upon
the Premises or upon other portions of the building of which the Premises are a
part, or from other sources or places and regardless of whether the cause of
such damage or injury or the means of repairing the same is inaccessible to
Lessee. Lessor shall not be liable (EXCEPT TO THE EXTENT CAUSED BY THE WILLFUL
ACTS OF LESSOR, ITS AGENTS, EMPLOYEES, OR CONTRACTORS, OR AS A RESULT OF A
DEFAULT BY LESSOR OF ITS OBLIGATIONS UNDER THIS LEASE) for any damages arising
from any act or neglect of any other tenant, if any, of the building in which
the Premises are located.
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Partial Damage" shall herein mean damage or
destruction to the Premises to the extent that the cost of repair is less than
50% of the fair market value of the Premises immediately prior to such damage or
destruction. "Premises Building Partial Damage" shall herein mean damage or
destruction to the building of which the Premises are a part to the extent that
the cost of repair, is less than 50% of the fair market value of such building
as a whole immediately prior to such damage or destruction.
(b) "Premises Total Destruction" shall herein mean damage or
destruction to the Premises to the extent that the cost of repair is 50% or more
of the fair market value of the Premises immediately prior to such damage or
destruction. "Premises Building Total Destruction" shall herein mean damage or
destruction to the building of which the Premises are a part to the extent that
the cost of repair is 50% or more of the fair market value of such building as a
whole immediately prior to such damage or destruction.
(c) "Insured Loss" shall herein mean damage or destruction
which was caused by an event required to be covered by the insurance described
in paragraph 8.
9.2 Partial Damage - Insured Loss. Subject to the provisions of
paragraphs 9.4, 9.5 and 9.6, if at anytime during the term of this Lease there
is damage which is an Insured Loss and which falls into the classification of
Premises Partial Damage or Premises Building Partial Damage, then Lessor shall,
at Lessor's sole cost, repair such damage, but not Lessee's fixtures,
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equipment
or tenant improvements, as soon as reasonably possible and this Lease shall
continue in full force and effect.
9.3 Partial Damage - Uninsured Loss. Subject to the provisions of
Paragraphs 9.4, 9.5 and 9.6, if at any time during the term of this Lease there
is damage which is not an Insured Loss and which falls within the classification
of Premises Partial Damage or Premises Building Partial Damage, unless caused by
a negligent or willful act of Lessee (in which event Lessee shall make the
repairs at Lessee's expense), 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 the date of the occurrence of such
damage of Lessor's intention to cancel and terminate this Lease, as of the date
of the occurrence of such damage. In the event Lessor elects to give such notice
of Lessor's intention to cancel and 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 Lessee's intention to repair such damage at Lessee's
expense, without reimbursement from Lessor, in which event this Lease shall
continue in full force and effect, and Lessee shall proceed to make such repairs
as soon as reasonably possible. If Lessee does not give such notice within such
10-day period this Lease shall be canceled and terminated as of the date of the
occurrence of such damage.
9.4 Total Destruction. If at any time during the term of this Lease
there is damage, whether or not an Insured Loss, (including destruction required
by any authorized public authority), which falls into the classification of
Premises Total Destruction or Premises Building Total Destruction, this Lease
shall automatically terminate as of the date of such total destruction.
9.5 Damage Near End of Term.
(a) If at anytime during the last six months of the term of
this Lease there is damage, whether or not an Insured Loss, which falls within
the classification of Premises Partial Damage, Lessor may at Lessor's option
cancel and terminate this Lease as of the date of occurrence of such damage by
giving written notice to Lessee of Lessor's election to do so within 30 days
after the date of occurrence of such damage.
(b) Notwithstanding paragraph 9.5(a), in the event that Lessee
has an option to extend or renew this Lease, and the time within which said
option may be exercised has not yet expired, Lessee shall exercise such option,
if it is to be exercised at all, no later than 20 days after the occurrence of
an Insured Loss falling within the classification of Premises Partial Damage
during the last six months of the term of this Lease. If Lessee duly exercises
such option during said 20 day period, 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 during said 20 day
period, then Lessor may at Lessor's option terminate and cancel this Lease as of
the expiration of said 20 day period by giving written notice to Lessee of
Lessor's election to do so within 10 days after the expiration of said 20 day
period, notwithstanding any term or provision in the grant of option to the
contrary.
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9.6 Abatement of Rent; Lessee's Remedies.
(a) In the event of damage described in paragraphs 9.2 or 9.3,
and Lessor or Lessee repairs or restores the Premises pursuant to the provisions
of this Paragraph 9, the rent payable hereunder for the period during which such
damage, repair or restoration continues shall be abated in proportion to the
degree to which Lessee's use of the Premises is impaired. Except for abatement
of rent, if any, Lessee shall have no claim against Lessor for any damage
suffered by reason of any such damage, destruction, repair or restoration.
(b) If Lessor shall be obligated to repair or restore the
Premises under the provisions of this Paragraph 9 and shall not commence such
repair or restoration within 90 days after such obligations shall accrue, Lessee
may at Lessee's option cancel and terminate this Lease by giving Lessor written
notice of Lessee's election to do so at any time prior to the commencement of
such repair or restoration. In such event this Lease shall terminate as of the
date of such notice.
9.7 Termination - Advance Payments. Upon termination of this Lease
pursuant to this Paragraph 9, an equitable adjustment shall be made concerning
advance rent and any advance payments made by Lessee to Lessor. Lessor shall, in
addition, return to Lessee so much of Lessee's security deposit as has not
theretofore been applied by Lessor.
9.8 Waiver. Lessor and Lessee waive the provisions of any statutes
which relate to termination of leases when leased property is destroyed and
agree that such event shall be governed by the terms of this Lease.
9.9 TERMINATION - DELAY. IF ANY REPAIRS ARE NOT COMPLETED OR
COMPLEATABLE WITHIN 180 DAYS OF DESTRUCTION OR PARTIAL DAMAGE, LESSEE HAS OPTION
TO TERMINATE THIS LEASE.
10. Real Property Taxes.
10.1 Payment of Tax Increase. Lessor shall pay the real property tax,
as defined in paragraph 10.3, applicable to the Premises; provided, however,
that Lessee shall pay its pro rata share, in addition to rent, the amount, if
any, by which real property taxes applicable to the Premises increase over the
fiscal real estate tax year 1998, 1999. Such payment shall be made by Lessee
within thirty (30) days after receipt of Lessor's written statement setting
forth the amount of such increase and the computation thereof. If the term of
this Lease shall not expire concurrently with the expiration of the tax fiscal
year. Lessee's liability for increased taxes for the last partial lease year
shall be prorated on an annual basis.
10.2 Additional Improvements. Notwithstanding paragraph 10.1 hereof,
Lessee shall pay to Lessor upon demand therefor the entirety of any increase in
real property tax if assessed solely by reason of additional improvements placed
upon the Premises by Lessee or at Lessee's request.
10.3 Definition of "Real Property Tax". As used herein, the term "real
property tax" shall include any form of real estate tax or assessment, general,
special, ordinary or extraordinary, and any license fee, commercial rental tax,
improvement bond or bonds, levy or
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tax (other than inheritance, personal income or estate taxes) imposed on the
Premises by any authority having the direct or indirect power to tax,
including any city, state or federal government, or any school, agricultural,
sanitary, fire, street, drainage or other improvement district thereof, as
against any legal or equitable interest of Lessor in the Premises or in the
real property of which the Premises are a part, as against Lessor's right to
rent or other income therefrom, and as against Lessor's business of leasing
the Premises. The term "real property tax" shall also include any tax, fee,
levy, assessment or charge (i) in substitution of, partially or totally, any
tax, fee, levy, assessment or charge herein above included within the
definition of "real property tax," or (ii) the nature of which was
hereinbefore included within the definition of "real property tax," or (iii)
which is imposed for a service or right not charged prior to June 1, 1978,
or, if previously charged, has been increased since June 1, 1978, or (iv)
which is imposed as a result of a transfer, either partial or total, of
Lessor's interest in the Premises or which is added to a tax or charge
hereinbefore included within the definition of real property tax by reason of
such transfer, or (v) which is imposed by reason of this transaction, any
modifications or changes hereto or any transfers hereof.
10.4 Joint Assessment. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the real property taxes
for all of the land and improvements included within the tax parcel assessed,
such proportion to be determined by Lessor from the respective valuations
assigned in the assessor's work sheets or such other information as may be
reasonably available. Lessor's reasonable determination thereof, in good faith,
shall be conclusive.
10.5 Personal Property Taxes.
(a) Lessee shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment and all other
personal property of Lessee contained in the Premises or elsewhere. When
possible, Lessee shall cause said trade fixtures, furnishings, equipment and all
other personal property to be assessed and billed separately from the real
property of Lessor.
(b) If any of Lessee's said personal property shall be
assessed with Lessor's real property, Lessee shall pay Lessor the taxes
attributable to Lessee within 10 days after receipt of a written statement
setting forth the taxes applicable to Lessee's property.
11. Utilities.
Lessee shall pay for all water, gas, heat, light, power, telephone and
other utilities and services supplied to the Premises, together with any taxes
thereon. If any such services are not separately metered to Lessee, Lessee shall
pay a reasonable proportion to be determined by Lessor of all charges jointly
metered with other premises.
12. Assignment and Subletting.
12.1 Lessor's Consent Required. Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Lessee's interest in this Lease or in the Premises,
without Lessor's prior consent, which Lessor shall not
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unreasonably withhold. LESSEE SHALL PROVIDE WRITTEN NOTICE OF SUCH DESIRE AT
LEAST NINETY (90) DAYS IN ADVANCE OF THE DATE ON WHICH LESSEE DESIRES TO MAKE
SUCH ASSIGNMENT OR SUBLET. LESSOR SHALL THEN HAVE A PERIOD OF THIRTY (30)
DAYS FOLLOWING RECEIPT OF SUCH NOTICE WITHIN WHICH TO NOTIFY LESSEE IN
WRITING THAT LESSOR ELECTS EITHER (I) TO TERMINATE THIS LEASE AS TO THE SPACE
SO AFFECTED AS OF THE DATE SO SPECIFIED BY LESSEE IN WHICH EVENT LESSEE WILL
BE RELIEVED OF ALL FURTHER OBLIGATIONS HEREAFTER AS TO SUCH SPACE, OR (II) TO
PERMIT LESSEE TO ASSIGN OR SUBLET SUCH SPACE, SUBJECT, HOWEVER, TO PRIOR
WRITTEN APPROVAL OF THE PROPOSED ASSIGNEE OR SUBLESSEE BY LESSOR. IF LESSOR
SHOULD FAIL TO NOTIFY LESSEE IN WRITING OF SUCH ELECTION WITHIN SAID 30-DAY
PERIOD, LESSOR SHALL BE DEEMED TO HAVE ELECTED OPTION (II) ABOVE. LESSOR'S
REASONABLE JUDGMENT WILL BE USED IN SUCH A MANNER THAT NEW ASSIGNEE OR
SUBLESSEE (I) IS IN KEEPING WITH THE THEN STANDARDS OF THE BUILDING, (II)
WILL NOT VIOLATE ANY NEGATIVE COVENANT AS TO USE CONTAINED IN ANY OTHER LEASE
OF SPACE IN THE BUILDING, (III) THE PROPOSED ASSIGNEE OR SUBLESSEE IS A
REPUTABLE COMPANY WITH SUFFICIENT FINANCIAL NET WORTH CONSIDERING THE
RESPONSIBILITY INVOLVED, AND LESSOR HAS BEEN FURNISHED WITH REASONABLE PROOF
THEREOF. NO SUBLEASE SHALL BE FOR A LONGER TERM ENDING LATER THAN THE CURRENT
EXPIRATION DATE OF THIS LEASE. SUBLEASE SHALL BE IN A FORM ACCEPTABLE TO
LESSOR.
12.2 Lessee Affiliate. Notwithstanding the provisions of paragraph 12.1
hereof, Lessee may assign or sublet the Premises, or any portion thereof,
without Lessor's consent, to any corporation which controls, is controlled by or
is under common control with Lessee, or to any corporation resulting from the
merger or consolidation with Lessee, or to any person or entity which acquires
all the assets of Lessee as a going concern of the business that is being
conducted on the Premises, provided that said assignee assumes, in full, the
obligations of Lessee under this Lease. Any such assignment shall not, in any
way, affect or limit the liability of Lessee under the terms of this Lease even
if after such assignment or subletting the terms of this Lease are materially
changed or altered without the consent of Lessee, the consent of whom shall not
be necessary.
12.3 No Release of Lessee. Regardless of Lessor's consent, no
subletting or assignment shall release Lessee of Lessee's obligation or alter
the primary liability of Lessee to pay the rent and to perform all other
obligations to be performed by Lessee hereunder. The acceptance of rent by
Lessor from any other person shall not be deemed to be a waiver by Lessor of any
provision hereof. Consent to one assignment or subletting shall not be deemed
consent to any subsequent assignment or subletting. In the event of default by
any assignee of Lessee or any successor of Lessee, in the performance of any of
the terms hereof, Lessor may proceed directly against Lessee without the
necessity of exhausting remedies against said assignee. IN THE
EVENT OF AN ASSIGNMENT OR SUBLEASE, LESSEE AND LESSOR SHALL SHARE EQUALLY IN ANY
EXCESS PROFIT CALCULATED AGAINST THE EFFECTIVE RENTAL RATE NET OF ANY RENT
ABATEMENT, AND AFTER LESSEE RECOVERS THE FOLLOWING COSTS: (1) REASONABLE
ATTORNEYS FEES (2) COST OF TENANT IMPROVEMENTS (3) COST OF ANY BROKERAGE FEES.
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12.4 Attorney's Fees. In the event Lessee shall assign or sublet the
Premises or request the consent of Lessor to any assignment or subletting or if
Lessee shall request the consent of Lessor for any act Lessee proposes to do
then Lessee shall pay Lessor's reasonable attorneys fees incurred in connection
therewith, such attorneys fees not to exceed $500.00 for each such request.
13. Defaults; Remedies.
13.1 Defaults. The occurrence of any one or more of the following
events shall constitute a material default and breach of this Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee
WITHOUT PAYMENT OF RENT.
(b) The failure by Lessee to make any payment of rent or any
other payment required to be made by Lessee hereunder, as and when due, where
such failure shall continue for a period of three (3) business days after
written notice thereof from Lessor to Lessee. In the event that Lessor serves
Lessee with a Notice to Pay Rent or Quit pursuant to applicable Unlawful
Detainer statutes such Notice to Pay Rent or Quit shall also constitute the
notice required by this subparagraph.
(c) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Lessee, other than described in paragraph (b) above, where such failure shall
continue for a period of 30 days after written notice thereof from Lessor to
Lessee; provided, however, that if the nature of Lessee's default is such that
more than 30 days are reasonably required for its cure, then Lessee shall not be
deemed to be in default if Lessee commenced such cure within said 30-day period
and thereafter diligently prosecutes such cure to completion.
(d) (i) The making by Lessee of any general arrangement or
assignment for the benefit of creditors; (ii) Lessee becomes a "debtor" as
defined in 11 U.S.C. Section 101 or any successor statute thereto (unless,
in the case of a petition filed against Lessee, the same is dismissed within
60 days); (iii) the appointment of a trustee or receiver to take possession
of substantially all of Lessee's assets located at the Premises or of
Lessee's interest in this Lease, where possession is not restored to Lessee
within 30 days; or (iv) the attachment, execution or other judicial seizure
of substantially all of Lessee's assets located at the Premises or of
Lessee's interest in this Lease, where such seizure is not discharged within
30 days, provided, however, in the event that any provision of this paragraph
13.1(d) is contrary to any applicable law, such provision shall be of no
force or effect.
(e) The discovery by Lessor that any financial statement given
to Lessor by Lessee, any assignee of Lessee, any subtenant of Lessee, any
successor in interest of Lessee or any guarantor of Lessee's obligation
hereunder, and any of them, was materially false.
13.2 Remedies. In the event of any such material default or breach by
Lessee, Lessor may at any time thereafter, with or without notice or demand and
without limiting Lessor in the exercise of any right or remedy which Lessor may
have by reason of such default or breach:
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(a) Terminate Lessee's right to possession of the Premises by
any lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Lessor. In such event Lessor
shall be entitled to recover from Lessee all damages incurred by Lessor by
reason of Lessee's default including, but not limited to, the cost of recovering
possession of the Premises; expenses of reletting, including necessary
renovation and alteration of the Premises, reasonable attorney's fees, and any
real estate commission actually paid; the worth at the time of award by the
court having jurisdiction thereof of the amount by which the unpaid rent for the
balance of the term after the time of such award exceeds the amount of such
rental loss for the same period that Lessee proves could be reasonably avoided;
that portion of the leasing commission paid by Lessor pursuant to Paragraph 15
applicable to the unexpired term of this Lease.
(b) Maintain Lessee's right to possession in which case this
Lease shall continue in effect whether or not Lessee shall have abandoned the
Premises. In such event Lessor shall be entitled to enforce all of Lessor's
rights and remedies under this Lease, including the right to recover the rent as
it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to
Lessor under the laws or judicial decisions of the state wherein the Premises
are located. Unpaid installments of rent and other unpaid monetary obligations
of Lessee under the terms of this Lease shall bear interest from the date due at
the maximum rate then allowable by law.
13.3 Default by Lessor. Lessor shall not be in default unless Lessor
fails to perform obligations required of Lessor within a reasonable time, but in
no event later than thirty (30) days after written notice by Lessee to Lessor
and to the holder of any first mortgage or deed of trust covering the Premises
whose name and address shall have theretofore been furnished to Lessee in
writing, specifying wherein Lessor his failed to perform such obligation;
provided, however, that if the nature of Lessor's obligation is such that more
than thirty (30) days are required for performance then Lessor shall not be in
default if Lessor commences performance within such 30-day period and thereafter
diligently prosecutes the same to completion.
13.4 Late Charges. Lessee hereby acknowledges that late payment by
Lessee to Lessor of rent and other sums due hereunder will cause Lessor to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Lessor by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Lessee shall
not be received by Lessor or Lessor's designee within ten (10) days after such
amount shall be due, then, without any requirement for notice to Lessee, Lessee
shall pay to Lessor a late charge equal to 6% of such overdue amount. The
parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Lessor will incur by reason of late payment by Lessee.
Acceptance of such late charge by Lessor shall in no event constitute a waiver
of Lessee's default with respect to such overdue amount, nor prevent Lessor from
exercising any of the other rights and remedies granted hereunder. In the event
that a late charge is payable hereunder, whether or not collected, for three (3)
consecutive installments of rent, then rent shall automatically become due and
payable quarterly in advance, rather than monthly, notwithstanding paragraph 4
or any other provision of this Lease to the contrary.
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13.5 Impounds. In the event that a late charge is payable hereunder,
whether or not collected, for three (3) installments of rent or any other
monetary obligation of Lessee under the terms of this Lease, Lessee shall pay to
Lessor, if Lessor shall so request, in addition to any other payments required
under this Lease, a monthly advance installment, payable at the same time as the
monthly rent, as estimated by Lessor, or real property tax and insurance
expenses on the Premises which are payable by Lessee under the terms of this
Lease. Such fund shall be established to insure payment when due, before
delinquency, of any or all such real property taxes and insurance premiums. If
the amounts paid to Lessor by Lessee under the provisions of this paragraph are
insufficient to discharge the obligations of Lessee to pay such real property
taxes and insurance premiums as the same become due, Lessee shall pay to Lessor,
upon Lessor's demand, such additional sums necessary to pay such obligations.
All moneys paid to Lessor under this paragraph may be intermingled with other
moneys of Lessor and shall not bear interest. In the event of a default in the
obligations of Lessee to perform under this Lease, then any balance remaining
from funds paid to Lessor under the provisions of this paragraph may, at the
option of Lessor, be applied to the payment of any monetary default of Lessee in
lieu of being applied to the payment of real property tax and insurance
premiums.
14. Condemnation.
If the Premises or any portion thereof are taken under the power of
eminent domain, or sold under the threat of the exercise of said power (all of
which are herein called "condemnation"), this Lease shall terminate as to the
part so taken as of the date the condemning authority takes title or possession,
whichever first occurs. If more than 10% of the floor area of the building on
the Premises, or more than 25% of the land area of the Premises which is not
occupied by any building, is taken by condemnation, Lessee may, at Lessee's
option, to be exercised in writing only within ten (10) days after Lessor shall
have given Lessee written notice of such taking (or in the absence of such
notice, within ten (10) days after the condemning authority shall have taken
possession) terminate this Lease as of the date the condemning authority takes
such possession. If Lessee does not terminate this Lease in accordance with the
foregoing, this Lease shall remain in full force and effect as to the portion of
the Premises remaining, except that the rent shall be reduced in the proportion
that the floor area of the building taken bears to the total floor area of the
building situated on the Premises. No reduction of rent shall occur if the only
area taken is that which does not have a building located thereon. Any award for
the taking of all or any part of the Premises under the power of eminent domain
or any payment made under threat of the exercise of such power shall be the
property of Lessor, whether such award shall be made as compensation for
diminution in value of the lease hold or for the taking of the fee, or as
severance damages; provided, however, that Lessee shall be entitled to any award
for loss of or damage to Lessee's trade fixtures and removable personal
property. In the event that this Lease is not terminated by reason of such
condemnation, Lessor shall to the extent of severance damages received by Lessor
in connection with such condemnation, repair any damage to the Premises caused
by such condemnation except to the extent that Lessee has been reimbursed
therefor by the condemning authority. Lessee shall pay any amount in excess of
such severance damages required to complete such repair.
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16. Estoppel Certificate.
(a) Lessee shall at anytime upon not less than ten (10) days' prior
written notice from Lessor execute, acknowledge and deliver to Lessor a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect) and the
date to which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to Lessee's knowledge, any uncured defaults on
the part of Lessor hereunder, or specifying such defaults if any are claimed.
Any such statement may be conclusively relied upon by any prospective purchaser
or encumbrancer of the Premises.
(b) At Lessor's option, Lessee's failure to deliver such statement
within such time shall be a material breach of this Lease or shall be conclusive
upon Lessee (i) that this Lease is in full force and effect, without
modification except as may be represented by Lessor, (ii) that there are no
uncured defaults in Lessor's performance, and (iii) that not more than one
month's rent has been paid in advance or such failure may be considered by
Lessor as a default by Lessee under this Lease.
(c) If Lessor desires to finance, refinance, or sell the Premises, or
any part thereof, Lessee hereby agrees to deliver to any lender or purchaser
designated by Lessor such financial statements of Lessee as may be reasonably
required by such lender or purchaser. Such statements shall include the past
three years' financial statements of Lessee. All such financial statements shall
be received by Lessor and such lender or purchaser in confidence and shall be
used only for the purposes herein set forth.
17. Lessor's Liability.
The term "Lessor" as used herein shall mean only the owner or owners at
the time in question of the fee title or a lessee's interest in a ground lease
of the Premises, and except as expressly provided in Paragraph 15, in the event
of any transfer of such title or interest, Lessor herein named (and in case of
any subsequent transfers then the grantor) shall be relieved from and after the
date of such transfer of all liability as respects Lessor's obligations
thereafter to be performed, provided that any funds in the hands of Lessor or
the then grantor at the time of such
15
transfer, in which Lessee has an interest, shall be delivered to the grantee.
The obligations contained in this Lease to be performed by Lessor shall,
subject as aforesaid, be binding on Lessor's successors and assigns, only
during their respective periods of ownership.
18. Severabililty.
The invalidity of any provision of this Lease as determined by a court
of competent jurisdiction, shall in no way affect the validity of any other
provision hereof.
19. Interest on Past-due Obligations.
Except as expressly herein provided, any amount due to Lessor not paid
when due shall bear interest at the maximum rate then allowable by law from the
date due. Payment of such interest shall not excuse or cure any default by
Lessee under this Lease, provided, however, that interest shall not be payable
on late charges incurred by Lessee nor on any amounts upon which late charges
are paid by Lessee.
20. Time of Essence.
Time is of the essence.
21. Additional Rent.
Any monetary obligations of Lessee to Lessor under the terms of this
Lease shall be deemed to be rent.
22. Incorporation of Prior Agreements; Amendments.
This Lease contains all agreements of the parties with respect to any
matter mentioned herein. No prior agreement or understanding pertaining to any
such matter shall be effective. This Lease may be modified in writing only,
signed by the parties in interest at the time of the modification. Except as
otherwise stated in this Lease, Lessee hereby acknowledges that neither the real
estate broker (if any) listed in Paragraph 15 hereof nor any cooperating broker
on this transaction nor the Lessor or any employees or agents of any of said
persons has made any oral or written warranties or representations to Lessee
relative to the condition or use by Lessee of said Premises and Lessee
acknowledges that Lessee assumes all responsibility regarding the Occupational
Safety Health Act, the legal use and adaptability of the Premises and the
compliance thereof with all applicable laws and regulations in effect during the
term of this Lease except as otherwise specifically stated in this Lease.
23. Notices.
Any notice required or permitted to be given hereunder shall be in
writing and may be given by personal delivery or by mail or certified mail, and
if given personally or by mail, shall be deemed sufficiently given if addressed
to Lessee or to Lessor at the address noted below the signature of the
respective parties, as the case may be. Either party may by notice to the other
specify a different address for notice purposes except that upon Lessee's taking
possession of the
16
Premises, the Premises shall constitute Lessee's address for notice purposes.
A copy of all notices required or permitted to be given to Lessor hereunder
shall be concurrently transmitted to such party or parties at such addresses
as Lessor may from time to time hereafter designate by notice to Lessee.
24. Waivers.
No waiver by Lessor or any provision hereof shall be deemed a waiver of
any other provision hereof or of any subsequent breach by Lessee of the same or
any other provision. Lessor's consent to, or approval of any act, shall not be
deemed to render unnecessary the obtaining of Lessor's consent to or approval of
any subsequent act by Lessee. The acceptance of rent hereunder by Lessor shall
not be a waiver of any preceding breach by Lessee of any provision hereof, other
than the failure of Lessee to pay the particular rent so accepted, regardless of
Lessor's knowledge of such preceding breach at the time of acceptance of such
rent.
25. Recording.
Either Lessor or Lessee shall, upon request of the other, execute,
acknowledge and deliver to the other a "short form" memorandum of this Lease for
recording purposes.
26. Holding Over.
If Lessee, with Lessor's consent, remains in possession of the Premises
or any part thereof after the expiration of the term hereof, such occupancy
shall be a tenancy at renegotiated rent from month to month upon all the
provisions of this Lease pertaining to the obligations of Lessee, but all
options and rights of first refusal, if any, granted under the terms of this
Lease shall be deemed terminated and be of no further effect during said month
to month tenancy.
27. Cumulative Remedies.
No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
28. Covenants and Conditions.
Each provision of this Lease performable by Lessee shall be deemed both
a covenant and a condition.
29. Binding Effect; Choice of Law.
Subject to any provisions hereof restricting assignment or subletting
by Lessee and subject to the provisions of Paragraph 17, this Lease shall bind
the parties, their personal representatives, successors and assigns. This Lease
shall be governed by the laws of the State wherein the Premises are located.
17
30. Subordination.
(a) This Lease, at Lessor's option, shall be subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation or security now or
hereafter placed upon the real property of which the Premises are a part and to
any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Lessee's right to quiet possession of the
Premises shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee or ground lessor shall elect to have this Lease prior to the
lien of its mortgage, deed of trust or ground lease, and shall give written
notice thereof to Lessee, this Lease shall be deemed prior to such mortgage,
deed of trust, or ground lease, whether this Lease is dated prior or subsequent
to the date of said mortgage, deed of trust or ground lease or the date of
recording thereof.
(b) Lessee agrees to execute any documents required to effectuate an
attornment, a subordination or to make this Lease prior to the lien of any
mortgage, deed of trust or ground lease, as the case may be. Lessee's failure to
execute such documents within 10 days after written demand shall constitute a
material default by Lessee hereunder, or, at Lessor's option, Lessor shall
execute such documents on behalf of Lessee as Lessee's attorney-in-fact. Lessee
does hereby make, constitute and irrevocably appoint Lessor as Lessee's
attorney-in-fact and in Lessee's name, place and stead, to execute such
documents in accordance with this paragraph 30(b).
31. Attorney's Fees.
If either party herein brings an action to enforce the terms hereof
or declare rights hereunder, the prevailing party in any such action, on
trial or appeal, shall be entitled to his reasonable attorney's fees to be
paid by the losing party as fixed by the court.
32. Lessor's Access.
Lessor and Lessor's agents shall have the right to enter the Premises
at reasonable times, WITH REASONABLE NOTICE, for the purpose of inspecting the
same, showing the same to prospective purchasers, lenders, or lessees, and
making such alterations, repairs, improvements or additions to the Premises or
to the building of which they are a part as Lessor may deem necessary or
desirable. Lessor may at any time place on or about the Premises any ordinary
"For Sale" signs and Lessor may at any time during the last 120 days of the term
hereof place on or about the Premises any ordinary "For Lease" signs, all
without rebate of rent or liability to Lessee.
33. Auctions.
Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first having
obtained Lessor's prior written consent. Notwithstanding anything to the
contrary in this Lease, Lessor shall not be obligated to exercise any standard
of reasonableness in determining whether to grant such consent.
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34. Signs.
Lessee shall not place any sign upon the Premises without Lessor's
prior written consent except that Lessee shall have the right, without the prior
permission of Lessor to place ordinary and usual for rent or sublet signs
thereon. Subject to compliance with applicable local ordinances, LESSEE SHALL
HAVE THE RIGHT, WITH LESSOR'S CONSENT (WHICH SHALL NOT BE UNREASONABLY WITHHELD
OR DELAYED) TO ERECT ANY SIGN IN OR ON THE OUTSIDE OF THE PREMISES, AS LESSEE
DESIRES. LESSEE SHALL HAVE THE USE OF THE EXTERIOR MONUMENT SIGNAGE, BASED ON
LESSEE'S PRO RATA SHARE OF VETERANS SQUARE.
35. Merger.
The voluntary or other surrender of this Lease by Lessee, or a mutual
cancellation thereof, or a termination by Lessor, shall not work a merger, and
shall, at the option of Lessor, terminate all or any existing subtenancies or
may, at the option of Lessor, operate as an assignment to Lessor of any or all
of such subtenancies.
36. Consents.
Except for paragraph 33 hereof, wherever in this Lease the consent of
one party is required to an act of the other party, such consent shall not be
unreasonably withheld.
37. Guarantor.
In the event that there is a guarantor of this Lease, said guarantor
shall have the same obligations as Lessee under this Lease.
38. Quiet Possession.
Upon Lessee paying the rent for the Premises and observing and
performing all of the covenants, conditions and provisions on Lessee's part to
be observed and performed hereunder, Lessee shall have quiet possession of the
Premises for the entire term hereof subject to all of the provisions of this
Lease. The individuals executing this Lease on behalf of Lessor represent and
warrant to Lessee that they are fully authorized and legally capable of
executing this Lease on behalf of Lessor and that such execution is binding upon
all parties holding an ownership interest in the Premises.
39. Options.
39.1 Definition. As used in this paragraph the word "Options" has the
following meaning: (1) the right or option to extend the term of this Lease or
to renew this Lease or to extend or renew any lease that Lessee has on other
property of Lessor; (2) the option or right of first refusal to lease the
Premises or the right of first offer to lease the Premises or the right of first
refusal to lease other property of Lessor or the right of first offer to lease
other property of Lessor; (3) the right or option to purchase the Premises, or
the right of first refusal to purchase the Premises, or the right of first offer
to purchase the Premises or the right or option to purchase
19
other property of Lessor, or the right of first refusal to purchase other
property of Lessor or the right of first offer to purchase other property of
Lessor.
39.2 Options Personal. Each Option granted to Lessee in this Lease are
personal to Lessee (AND LESSEE'S AFFILIATES, SEE 12.2) and may not be exercised
or be assigned, voluntarily or involuntarily, by or to any person or entity
other than Lessee, provided, however, the Option may be exercised by or assigned
to any assignable separate and apart from this Lease.
39.3 Multiple Options. In the event that Lessee has any multiple
options to extend or renew this Lease a later option cannot be exercised unless
the prior option to extend or renew this Lease has been so exercised.
39.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary, (i) during
the time commencing from the date Lessor gives to Lessee a notice of default
pursuant to paragraph 13.1(b) or 13.1(c) and continuing until the default
alleged in said notice of default is cured, or (ii) during the period of time
commencing on the day after a monetary obligation to Lessor is due from Lessee
and unpaid (without any necessity for notice thereof to Lessee) continuing until
the obligation is paid, or (iii) at any time after an event of default described
in paragraphs 13.1(a), 13.1(d), or 13.1(e) (without any necessity of Lessor to
give notice of such default to Lessee), or (iv) in the event that Lessor has
given to Lessee three or more notices of default under paragraph 13.1(b), where
a late charge becomes payable under paragraph 13.4 for each of such defaults, or
paragraph 13.1(c), whether or not the defaults are cured, during the 12 month
period prior to the time that Lessee intends to exercise the subject Option.
(b) The period of time within which an Option may be exercised
shall not be extended or enlarged by reason of Lessee's inability to exercise an
Option because of the provisions of paragraph 39.4(a).
(c) All rights of Lessee under the provisions of an Option
shall terminate and be of no further force or effect, notwithstanding Lessee's
due and timely exercise of the Option, if, after such exercise and during the
term of this Lease, (i) Lessee fails to pay to Lessor a monetary obligation of
Lessee for a period of 30 days after such obligation becomes due (without any
necessity of Lessor to give notice thereof to Lessee), or (ii) Lessee fails to
commence to cure a default specified in paragraph 13.1(c) within 30 days after
the date that Lessor gives notice to Lessee of such default and/or Lessee fails
thereafter to diligently prosecute said cure to completion, or (iii) Lessee
commits a default described in paragraph 13.1(a). 13.1(d) or 13.1(e) (without
any necessity of Lessor to give notice of such default to Lessee), or (iv)
Lessor gives to Lessee three or more notices of default under paragraph 13.1(b),
where a late charge becomes payable under paragraph 13.4 for each such default,
or paragraph 13.1(c), whether or not the defaults are cured.
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40. Multiple Tenant Building.
In the event that the Premises are part of a larger building or group
of buildings then Lessee agrees that it will abide by, keep and observe all
reasonable rules and regulations which Lessor may make from time to time for the
management, safety, care, and cleanliness of the building and grounds, the
parking of vehicles and the preservation of good order therein as well as for
the convenience of other occupants and tenants of the building. The violations
of any such rules and regulations shall be deemed a material breach of this
Lease by Lessee.
41. Security Measures.
Lessee hereby acknowledges that the rental payable to Lessor hereunder
does not include the cost of guard service or other security measures, and that
Lessor shall have no obligation whatsoever to provide same. Lessee assumes all
responsibility for the protection of Lessee, its agents and invitees from acts
of third parties.
42. Easements.
Lessor reserves to itself the right, from time to time, to grant such
easements, rights and dedications that Lessor deems necessary or desirable, and
to cause the recordation of Parcel Maps and restrictions, so long as such
easements, rights, dedications, Maps and restrictions do not unreasonably
interfere with the use of the Premises by Lessee. Lessee shall sign any of the
aforementioned documents upon request of Lessor and failure to do so shall
constitute a material breach of this Lease.
43. Performance Under Protest.
If at anytime a dispute shall arise as to any amount or sum of money to
be paid by one party to the other under the provisions hereof, the party against
whom the obligation to pay the money is asserted shall have the right to make
payment "under protest" and such payment shall not be regarded as a voluntary
payment, and there shall survive the right on the part of said party to
institute suit for recovery of such sum. If it shall be adjudged that there was
no legal obligation on the part of said party to pay such sum or any part
thereof, said party shall be entitled to recover such sum or so much thereof as
it was not legally required to pay under the provisions of this Lease.
44. Authority.
If Lessee is a corporation, trust, or general or limited partnership,
each individual executing this Lease on behalf of such entity represents and
warrants that he or she is duly authorized to execute and deliver this Lease on
behalf of said entity. If Lessee is a corporation, trust or partnership, Lessee
shall, within thirty (30) days after execution of this Lease, deliver to Lessor
evidence of such authority satisfactory to Lessor.
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45. Conflict.
Any conflict between the printed provisions of this Lease and the
typewritten or handwritten provisions shall be controlled by the typewritten,
underlined or handwritten provisions.
46. Addendum.
Attached hereto is an addendum or addenda containing paragraphs 47
THROUGH 58 which constitutes a part of this Lease.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED
AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS
LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND
EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
The parties hereto have executed this Lease at the place on the dates specified
immediately adjacent to their respective signatures.
Executed at Redwood City
--------------------------
on July 31, 1998 by /s/ Xxxxxx Xxxxxx
----------------------------------- ---------------------
address 0000 Xxxxxxxx Xx. #400-33 by /s/ Xxxxxx Management
------------------------------ ---------------------
Xxxxxxxx, XX 00000 LESSOR
--------------------------------------
Executed at Redwood City, CA
--------------------------
on August 3, 1998 by /s/ Xxxxxxx Xxxxxxx
----------------------------------- --------------------
address 0000 Xxxxxxx Xx. by /s/ iPrint, inc.
------------------------------ --------------------
Redwood City, CA LESSEE
--------------------------------------
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ADDENDUM TO LEASE
In reference to the Agreement to Lease dated July 30, 1998 by and between,
XXXXXX MANAGEMENT, hereafter referred to as Lessor, and iPrint Inc., hereafter
referred to as Lessee, covering the real property commonly known as 0000 XXXXXXX
XXXXX, XXXXXXX XXXX, XXXXXXXXXX, the undersigned Lessor and Lessee agree to the
following:
47. Lessee shall pay their pro-rata share (38.46%) of common area costs,
including but not limited to parking lot sweeping, landscaping, painting,
maintenance and common lighting. Lessee shall be provided a breakdown of these
costs.
48. Lessor hereby grants to Lessee the option to extend the term of this lease
for a five (5) year period following the expiration of the original term. Lessee
shall exercise this option by giving notice to Lessor at least six (6) months,
but not more than nine (9) months, prior to the expiration of the term. Terms
and conditions to be renegotiated at that time.
49. Lessee is taking premises in its present condition with the exception that
the Lessor warrants the HVAC units, electrical, plumbing are in normal working
condition in its present configuration as of the date of early possession.
Lessor shall deliver to Lessee, the entire Premises in broom clean condition,
free from debris and waste. Lessor also represents that all portions of the
roof, roof structures and supports and all structural portions of the Premises
are in good operating condition as of the early possession date.
50. At the time tenant enters the premises under the early possession provision,
all insurance including not limited to liability naming Lessor as coinsured, or
additional insured, to be in place, a copy of which shall be delivered to lessor
prior to entering.
51. Landlord to provide tenant with four (4) months of rental abatement as a
tenant improvement of allowance. (November 1998, December 1998, January 1999,
February 1999). iPrint shall not be required to restore the premises upon
expiration of the lease term or any extensions. All improvements are subject to
Lessor approval prior to work commencement.
52. Landlord is responsible for complying with the ADA in common areas, and
Lessee is responsible for compliance in their own space except for any ADA
compliance requirements triggered by Lessor's work in and around the premises.
Lessee agrees to inform Landlord immediately (but not later than ten days) after
becoming aware of any notice from any governmental agency of any violation of
the American with Disabilities Act ("ADA").
53. iPrint will be granted eight (8) designated parking spaces.
54. Regarding section 12 (Assignment and Subletting) Lessor approves subleasing
a portion of the space to "The Enterprise Network" at the same rent and terms as
Lessee. All other requirements of section 12 apply.
55. Interruption of Services: Notwithstanding anything to the contrary in the
lease, if the water or sewer service shall be temporarily suspended and not
restored within five (5) business days after written notice from Lessee to
Lessor, rent shall xxxxx from the date service was suspended until fully
restored; if any such service is not restored within thirty (30) days following
Lessee's written notice, Lessee shall have the right, until such service is
restored, to terminate this lease as of the date service was suspended and
Lessor shall afford Lessee twenty (20) days to surrender the Premises.
56. Indemnity: Notwithstanding anything to the contrary, Lessor and Lessee shall
each indemnify and hold each other harmless from all liability, claims, expenses
and penalties resulting from any breach by such party of any of its obligations
pursuant to this Lease or from the negligent acts or omissions of such party or
its partners, officers, agents, representatives, servants, employees,
contractors or invitees.
57. Hazardous Materials: Hazardous Materials is defined as and includes any of
the substances, materials, gases, elements or compounds that are contained in
the list of hazardous substances adopted by the United States Environmental
Protection Agency (the "EPA") and the list of toxic pollutants designated by the
United States Congress or the EPA or any substances, materials, cases, elements
or compounds affected by any other federal, state and local statute, ordinance,
code, rule, regulation, order or decree now or at any time hereafter in effect
regulating, relating to or imposing liability or standards of conduct concerning
any hazardous, toxic, dangerous, restricted or otherwise regulated, waste,
substance or material, as now or at any time hereafter in effect.
Lessor will deliver to Lessee all reports regarding Hazardous Materials within
or near the Premises or Building which have been prepared and of which Lessor
(after thorough investigation) is aware Lessor represents that to the best of
its knowledge the property is in compliance with all laws governing hazardous
materials, that it
has received no notice of any regulatory action that would result in the
requirement of investigators, or remedial action relating to Hazardous
Materials.
Lessee shall not, and shall not permit or allow others to, possess, use,
transport, store or release in or about the Premises, any Hazardous Material,
without obtaining the prior written consent of Lessor. Such approval shall not
relieve Lessee from its obligations to handle such approved Hazardous Materials
in compliance with applicable regulations and shall not relieve Lessee from its
obligations as hereinafter set forth.
Lessee hereby acknowledges that California Health and Safety Code Section
25359.7 requires Lessee to notify Landlord in writing if Lessee knows or has
reasonable cause to believe that any release of a Hazardous Material has come to
be located on or near or beneath the Premises, and that failure to provide such
notice may constitute default under the terms of this Lease and subject Lessee
to civil penalties in amounts not to exceed $5,000.00 for each violation of the
statute.
Lessee shall indemnify, defend and hold harmless Landlord, its agents,
employees, partners, heirs, successors, assigns and lenders from and against
administrative or judicial orders or directives, costs, damages, liens, expenses
and fees arising from or connected with the presence of any Hazardous Material
on, about or beneath the Premises, whether or not the storage or use of such
Hazardous Material was authorized by Lessor, provided however that Lessee shall
have no obligation to indemnify or defend Lessor with respect to any Hazardous
Material present on the Property or in groundwater beneath the Property prior to
the date of commencement of this Lease. The obligations of Lessee pursuant to
this paragraph shall survive the expiration or other termination of this lease.
58. Arbitration of Disputes: In the event of any controversy or claim arising
out of or relating to any provisions of this Agreement or the breach thereof,
the Parties shall try to settle such conflicts amicably between themselves. Any
such conflict, which the Parties are unable to resolve, shall be settled by
arbitration under the Commercial Arbitration Rules of the American Arbitration
Association. The demand for arbitration shall be filed within a reasonable time
after the controversy or claim has arisen, and in the event after the date upon
which institution of legal proceedings based on such controversy or claim would
be barred by the applicable statute of limitations. Such arbitration shall be
held in San Jose, California at the offices of the American Arbitration
Association. The award through arbitration shall be final and binding. The
prevailing Party in any arbitration shall be entitled to reasonable attorneys
fees costs and disbursements in addition to other relief to which such party is
entitled. Either Party may enter such award in a court having
jurisdiction or may make application to such court for judicial acceptance of
the award and an order of enforcement, as the case may be.
July 31, 1998 August 3, 1998
------------------------------- ----------------------------------
DATED DATED
/s/ Xxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxxx
------------------------------- ----------------------------------
LESSOR LESSEE
Xxxxxx Management iPrint, inc.
------------------------------- ----------------------------------
LESSOR LESSEE
ADDENDUM TO LEASE
September 15, 1999
In reference to the Agreement to Lease dated July 30, 1998 by and between XXXXXX
MANAGEMENT, hereafter referred to as Lessor, and IPRINT INC., hereinafter
referred to as Lessee, covering, the real property commonly known as 0000
XXXXXXX XXXXX, XXXXXXX XXXX, XXXXXXXXXX, the undersigned Lessor and Lessee agree
to the following leasing of two additional spaces:
PROPERTY 1 Approximately 1,000 square feet of commercial space
located at 0000 Xxxxxxx Xxxxx, Xxxxxxx Xxxx. Part of
a larger building.
TERM: Two year term, commencing October 1, 1999 and ending
on October 1, 2001.
RENT: $1,000.00 per month with same terms and conditions
as the lease referred to above.
PROPERTY 2 Approximately 1,428 square feet of commercial space
located at 0000 Xxxxxxx Xxxxx, Xxxxxxx Xxxx. Part of
a larger building.
TERM: One year and 10 month term, commencing December 1,
1999 and ending on October 1, 2001.
RENT: $1,428.00 per month with same terms and conditions
as the lease referred to above.
SECURITY DEPOSIT: No increase in security deposit.
APPROVED: APPROVED:
/s/ Xxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxxx
------------------------------------
Xxxxxx Management iPrint
9-15-99
Date 10/7/99
-------------------------------
