AIRPORT II PROPERTY MANAGEMENT, LLC
FULL SERVICE LEASE
1. BASIC LEASE PROVISIONS ("BASIC LEASE PROVISIONS")
1.1 PARTIES: This Lease, dated for reference purposes only, August 9,
2006, is made by and between AIRPORT II PROPERTY MANAGEMENT, LLC (herein called
"Lessor") and SYSVIEW TECHNOLOGY (herein called "Lessee").
1.2 PREMISES: Suite Number 1772 AND 178, consisting of approximately
10,682 RENTABLE SQUARE FEET AND 8,759 USEABLE SQUARE FEET, more or less, as
defined in paragraph 2 (the "Premises"). An 18% load is included in the total
approximate square feet.
1.3 BUILDING: Commonly described as being located at 0000 Xxxxxxxxxx Xxxxx
in the City of San Xxxx, County of Santa Xxxxx, and State of California and as
defined in paragraph 2.
1.4 USE: General office use and related legal uses, subject to paragraph
6.
1.5 TERM: Two years commencing on DECEMBER 1, 2006 ("Commencement Date")
and ending NOVEMBER 30, 2008 ("Termination Date"), as defined in paragraph 3.
1.6 BASE RENT: Shall be payable on the first day of each month in
accordance with paragraphs 1.7 and 4.1 herein.
1.7 BASE RENT SCHEDULE:
12/01/06 TO 11/30/07: $21,364.00 PER MONTH ($2.00 PER SQUARE FOOT)
12/01/07 TO 11/30/08: $21,898.10 PER MONTH ($2.05 PER SQUARE FOOT)
1.8 OPERATING EXPENSES SCHEDULE:
12/01/06 TO 11/30/07: $257.00 PER MONTH
12/01/07 TO 11/30/08: $534.10 PER MONTH
1.9 BASE RENT AND OTHER MONIES PAID UPON EXECUTION:
(A) BASE RENT: $21,364.00
(B) OPERATING EXPENSES: $257.00
(C) SECURITY DEPOSIT: $10,243.20 (22,432.20 LESS $12,189.00 ON FILE)
(D) OTHER: $0 *See sections 54 and 55.
(E) TOTAL DUE UPON EXECUTION OF THIS LEASE: $10,243.20
1.10 BUSINESS HOURS FOR THE BUILDING: 7:00 a.m. to 7:00 p.m. Monday
through Friday (except Building Holidays).
2. PREMISES, PARKING AND COMMON AREAS:
2.1 PREMISES: The Premises are a portion of a building, herein sometimes
referred to as the "Building" identified in paragraph 1.3 of the Basic Lease
Provisions "Building" shall include adjacent parking structures used in
connection therewith The Premises, the Building, the Common Areas, the land upon
which the same are located, along with all other buildings and improvements
thereon or thereunder, are herein collectively referred to as the "Office
Building Project". Lessor hereby leases to Lessee and Lessee leases from Lessor
for the term, at the rental rate, and upon all of the conditions set forth
herein, the real property referred to in the Basic Lease Provisions, paragraph
1.2, as the "Premises", including rights to the Common Areas as hereinafter
specified. Lessee agrees that Lessee has been given a full and fair opportunity
to determine and confirm the square footage of the Premises and further agrees
that the square footage referenced in the Basic Lease Provisions, paragraph 1.2,
is conclusively deemed accurate.
2.2 VEHICLE PARKING: So long as Lessee is not in default, and subject to
the rules and regulations attached hereto, and as established by Lessor from
time to time, Lessee shall be entitled to rent and use n/a (#) unreserved
parking spaces in the Office Building Project. There shall be no overnight
parking.
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(A) If Lessee commits, permits or allows any of the prohibited
activities described in the Lease or the rules then in effect, then Lessor shall
have the right, without notice, in addition to such other rights and remedies
that it may have, to remove or tow away the vehicle involved and charge the cost
to Lessee, which cost shall be immediately payable upon demand by Lessor.
2.3 COMMON AREAS - DEFINITION. The term "Common Areas" is defined as all
areas and facilities outside the Premises and within the exterior boundary line
of the Office Building Project that are provided and designated by Lessor from
time to time for the general non-exclusive use of Lessor, Lessee and of other
lessees of the Office Building Project and their respective employees,
suppliers, shippers, customers and invitees, including, but not limited to,
common entrances, lobbies, corridors, stairways and stairwells, public
restrooms, elevators, escalators, parking areas to the extent not otherwise
prohibited by this Lease, loading and unloading areas, trash areas, roadways,
sidewalks, walkways, parkways, ramps, driveways, landscaped areas and decorative
walls, but shall not have any right to the roof, the exterior walls, the area
above the dropped ceilings, or the utility raceways of the building containing
the Premises or to any other building in the Office Building Project.
2.4 COMMON AREAS - RULES AND REGULATIONS. Lessee agrees to abide by and
conform to the rules and regulations attached hereto as Exhibit 'A' with respect
to the Office Building Project and Common Areas, and to cause its employees,
suppliers, shippers, customers and invitees to so abide and conform. Lessor or
such other person(s) as Lessor may appoint shall have the exclusive control and
management of the Common Areas and shall have the right from time to time to
modify, amend and enforce said rules and regulations. Lessor shall not be
responsible to Lessee for the non-compliance with said rules and regulations by
other lessees, their agents, employees and invitees of the Office Building
Project.
2.5 COMMON AREAS - CHANGES. Lessor shall have the right, in Lessor's sole
discretion, from time to time:
(A) To make changes to the Building interior and exterior and Common
Areas, including, without limitation, changes in the location, size, shape,
number, and appearance thereof, including but not limited to the lobbies,
windows, stairways, air shafts, elevators, escalators, restrooms, driveways,
entrances, parking spaces, parking areas, loading and unloading areas, ingress,
egress, direction of traffic, decorative walls, landscaped areas and walkways;
provided, however, Lessor shall at all time provide the parking facilities
required by applicable law:
(B) To close temporarily any of the Common Areas for maintenance
purposes so long a reasonable access to the Premises remains available;
(C) To designate other land and improvements outside the boundaries
of the Office Building Project to be a part of the Common Areas, provided that
such other land and improvements have a reasonable and functional relationship
to the Office Building Project;
(D) To add additional buildings and improvements to the Common
Areas:
(E) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Office Building Project, or any
portion thereof:
(F) To do and perform such other act and make such other changes in,
to or with respect to the Common Areas and Office Building Project as Lessor
may, in the exercise of sound business judgment deem to be appropriate.
3. TERM.
3.1 TERM. The term Commencement Date and Termination Date of this Lease
shall be as specified in paragraph 1.5 of the Basic Lease Provisions.
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 and subject to paragraph 32(b), 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 or perform any other obligation
of Lessee under the terms of this Lease, except as may be otherwise provided in
this Lease, until possession of the Premises is tendered to Lessee, as
hereinafter defined; provided, however, that if Lessor shall not have delivered
possession of the Premises within sixty (60) days following said Commencement
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Date, as the same may be extended under the terms of a Work Letter executed by
Lessor and Lessee, 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 however
that as to Lessee's obligations, Lessee first reimburses Lessor for all costs
incurred for Non-Standard improvements and as to Lessor's obligations, Lessor
shall return any money previously deposited by Lessee (less any offsets due
Lessor for Non-Standard Improvements); and provided further that if such written
notice by 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 and effect.
(A) POSSESSION TENDERED - DEFINED. Possession of the Premises shall
be deemed tendered to Lessee ("Tender of Possession") when (1) the improvements
to be provided by Lessor under this Lease are substantially completed, (2) the
Building utilities are ready for use in the Premises, and (3) Lessee has
reasonable access to the Premises.
(B) DELAYS CAUSED BY LESSEE. There shall be no abatement of rent,
and the sixty (60) day period following the Commencement Date before which
Lessee's right to cancel this Lease accrues under paragraph 3.2, shall be deemed
extended to the extent of any delays caused by acts or omissions of Lessee,
Lessee's agents, employees and contractors.
3.3 EARLY POSSESSION. If Lessee occupies the Premises prior to said
Commencement Date, such occupancy shall be subject to all provisions of this
Lease, such occupancy shall not change the termination date, and Lessee shall
not pay rent for such early occupancy.
3.4 UNCERTAIN COMMENCEMENT. In the event commencement of the Lease term is
defined as the completion of the improvements, Lessee and Lessor shall execute
an amendment to this Lease establishing the date of Tender of Possession (as
defined in paragraph 3.2(a) or the actual taking of possession by Lessee,
whichever first occurs, as the Commencement Date.
3.5 LESSEE COMPLIANCE. Lessor shall not be required to tender possession
of the Premises to Lessee until Lessee complies with its obligation to provide
evidence of insurance (Paragraph 8.3). Pending delivery of such evidence, Lessee
shall be required to perform all of its obligations under this Lease from and
after the Commencement Date, including the payment of Rent, notwithstanding
Lessor's election to withhold possession pending receipt of such evidence of
insurance. Further, if Lessee is required to perform any other conditions prior
to or concurrent with the Commencement Date, the Commencement Date shall occur
but Lessor may elect to withhold possession until such conditions are satisfied.
4. RENT.
4.1 BASE RENT. Subject to adjustment as provided in paragraph 1.7 and
except as may be otherwise expressly provided in this Lease, Lessee shall pay to
Lessor the Base Rent for the Premises set forth in paragraph 1.7 of the Basic
Lease Provisions, without offset or deduction. Lessee shall pay Lessor upon
execution hereof the advance Base Rent described in paragraph 1.8 of the Basic
Lease provisions. Rent for any period during the term hereof which is for less
than one month shall be prorated based upon the actual number of days of the
calendar month involved. 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
4.2 OPERATING EXPENSES. Lessee shall pay to Lessor, in addition to Base
Rent, the amount set forth in paragraph 1.9 of the Basic Lease Provisions, as
fixed Operating Expenses, without offset or deduction, and payable on the first
day of each month in the manner described in paragraph 4.1.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof the
Security Deposit as security for Lessee's faithful performance of its
obligations under this Lease. If Lessee fails to pay Rent, or otherwise Defaults
under this Lease, Lessor may use, apply or retain all or any portion of said
Security Deposit for the payment of any amount due Lessor, including late
charges, or to reimburse or compensate Lessor for any liability, expense, loss
or damage which Lessor may suffer or incur by reason thereof. If Lessor uses or
applies all or any portion of said Security Deposit, Lessee shall within ten
(10) days after written request therefor deposit monies with Lessor sufficient
to restore said Security Deposit to the full amount required by this Lease. If
the Base Rent increases during the term of this Lease, Lessee shall, upon
written request from Lessor, deposit additional monies with Lessor so that the
total amount of the Security Deposit shall at all times bear the same proportion
to the increased Base Rent as the initial Security Deposit bore to the Initial
Base Rent. Should the Use (Paragraph 1.4) be amended to accommodate a material
change in the business of Lessee or to accommodate a sublessee or assignee,
Lessor shall have the right to increase the Security Deposit to the extent
necessary, in Lessor's reasonable judgment, to account for any increased wear
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and tear that the Premises may suffer as a result thereof. If a change in
control of Lessee occurs during this Lease and following such change the
financial condition of Lessee is, in Lessor's reasonable judgment, significantly
reduced, Lessee shall deposit such additional monies with Lessor as shall be
sufficient to cause the Security Deposit to be at a commercially reasonable
level based on said change in financial condition. Lessor shall not be required
to keep the Security Deposit separate from its general accounts. Within fourteen
(14) days after the expiration or termination of this Lease, if Lessor elects to
apply the Security Deposit only to unpaid Rent, and otherwise within thirty (30)
days after the Premises have been vacated pursuant to Paragraph 7.2(b) below,
Lessor shall return that portion of the Security Deposit not used or applied by
Lessor. No part of the Security Deposit shall be considered to be held in trust,
to bear interest or to be prepayment for any monies to be paid by Lessee under
this Lease. It is specifically understood that Lessee shall have no right at any
time to apply said Security Deposit, or any portion thereof, to any of its Rent
obligations (including its last month's Rent) or to any other sums due and
payable by Lessee under this Lease.
6. USE.
6.1 USE. The Premises shall be used and occupied only for the Use
specified in Paragraph 1.4, or any other legal use which is reasonably
comparable thereto, and for no other purpose. Lessee shall not use or permit the
use of the Premises in a manner that is unlawful, creates damage, waste or a
nuisance, or that disturbs owners and/or occupants of, or causes damage to
neighboring properties. Lessor shall not unreasonably withhold or delay its
consent to any written request for a modification of the Use, so long as the
same will not impair the structural integrity of the improvements on the
Premises or the mechanical or electrical systems therein, or is not
significantly more burdensome to the Premises. If lessor elects to withhold
consent, Lessor shall within five (5) business days after such request give
written notification of same, which notice shall include an explanation of
Lessor's objections to the change in use.
6.2 COMPLIANCE.
(A) Lessor warrants to Lessee that the Premises, in the state
existing on the date that the Lease term commences, but without regard to
alterations or improvements made by Lessee or the use for which Lessee will
occupy the Premises, do not violate any covenants or restrictions of record in
effect on such Lease term Commencement Date. In the event it is determined that
this warranty has been violated, then it shall be the obligation of the Lessor,
after written notice from Lessee, to promptly, at Lessor's sole cost and
expense, rectify any such violation. In the event Lessee does not give to Lessor
written notice of the violation of this warranty within six (6) months from the
date that the Lease term commences, the correction of same shall be the
obligation of the Lessee at Lessee's sole cost The warranty contained in this
paragraph 6.2(a) shall be of no force or effect if, prior to the date of this
Lease, Lessee was an owner or occupant of the Premises and, in such event,
Lessee shall correct any such violation at Lessee's sole cost.
(B) Except as provided in paragraph 6.2(a), Lessee shall, at
Lessee's expense, promptly comply with all applicable statutes (including
Americans with Disabilities Act and O.S.H.A.), ordinances, rules, regulations,
orders, covenants and restrictions of record, and requirements of any fire
insurance underwriters or rating bureaus, now in effect or which may hereafter
come into effect, whether or not they reflect a change in policy from that now
existing, during the term or any part of the term hereof, relating in any manner
to the Premises and the occupation and use by Lessee of the Premises. Lessee
shall conduct its business in a lawful manner and shall not use or permit the
use of the Premises or the Common Area in any manner that will tend to create
waste or a nuisance or shall tend to disturb other occupants of the Office
Building Project.
6.3 CONDITION OF PREMISES.
(A) Lessee warrants to Lessor that Lessee has conducted a thorough
inspection of the Premises including, without limitation, the plumbing,
lighting, air conditioning, and heating system, and Lessee accepts the Premises
in the condition existing on the Commencement Date.
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(B) Except as otherwise provided in this Lease, Lessee hereby
accepts the Premises and the Office Building Project in their condition existing
as of the Lease Commencement Date or the date that Lessee takes possession of
the Premises, whichever is earlier, subject to all applicable zoning, municipal,
county and state laws, ordinances and regulations governing and regulating the
use of the Premises, and any easements, covenants or restrictions of record, and
accepts this Lease subject thereto and to all matters disclosed thereby and by
any exhibits attached hereto. Lessee acknowledges that it has satisfied itself
by its own independent investigation that the Premises are suitable for its
intended use, and that neither Lessor nor Lessor's agent or agents has made any
representation or warranty as to the present or future suitability of the
Premises, Common Areas or Office Building Project for the conduct of Lessee's
business.
6.4 WASTE NUISANCE. Lessee shall not use the premises in any manner that
will constitute waste, nuisance, or unreasonable annoyance (including, without
limitation, unreasonable noise, the use of loudspeakers or sound or light
apparatus that can be heard or seen outside the Premises) to other tenants in
the Building or occupants of neighboring properties. Lessee shall not use the
Premises for vehicle repair, sleeping, washing clothes, cooking, or the
preparation, manufacturing or mixing of anything that might emit any odor or
objectionable noises or lights into the Building or onto neighboring properties.
7. MAINTENANCE, REPAIRS, ALTERATIONS AND COMMON AREA SERVICES.
7.1 LESSOR'S OBLIGATIONS. Lessor shall keep the Office Building Project,
including the Premises, interior and exterior walls, roof and Common Areas,
whether used exclusively for the Premises or in common with other Premises, in
good condition and repair; provided, however, Lessor shall not be obligated to
paint, repair or replace wall coverings, or to repair or replace any
improvements that are not ordinarily a part of the Building. Except as provided
in paragraph 9.5, there shall be no abatement of rent or liability of Lessee on
account of any injury or interference with Lessee's business with respect to any
improvements, alterations or repairs made by Lessor to the Office Building
Project or any part thereof. Lessee expressly waives the benefits of any statute
now or hereafter in effect which would otherwise afford Lessee the right to make
repairs at Lessor's expense or to terminate this Lease because of Lessor's
failure to keep the Premises in good order, condition and repair.
7.2 LESSEE'S OBLIGATIONS.
(A) Notwithstanding Lessor's obligation to keep the Premises in good
condition and repair, Lessee shall be responsible for payment of the cost
thereof to Lessor as additional rent for that portion of the cost of any
maintenance and repair of the Premises, or any equipment (wherever located) that
serves only Lessee or the Premises, to the extent such cost is attributable to
causes beyond normal wear and tear. Lessee shall be responsible for the cost of
painting, repairing or replacing wall coverings, and to repair or replace any
Premises improvements that are not ordinarily a part of the Building. Lessor
may, at its option, upon at least twenty (20) days prior notice to Lessee,
perform such maintenance or repair at Lessee's cost that is otherwise Lessee's
responsibility hereunder. During such twenty (20) day period Lessee may inform
Lessor of its intention to perform such maintenance or repair on its own and
Lessor shall not have any right to perform such maintenance or repair, except if
Lessee does not perform such maintenance or repair within thirty (30) days
thereof.
(B) 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 excepted, clean and free of debris. Any
damage or deterioration of the Premises shall not be deemed ordinary wear and
tear if the same could have been prevented by good maintenance practices by
Lessee. Lessee shall repair all penetrations and damage (including markings to
walls and stains in carpet). Lessee shall repair any damage to the Premises
occasioned by the installation or removal of Lessee's trade fixtures,
alterations, furnishings and equipment. Except as otherwise stated in this
Lease, Lessee shall leave the air lines, power panels, electrical distribution
systems, lighting fixtures, air conditioning, window coverings, wall coverings,
carpets, wall paneling, ceilings and plumbing on the Premises in the same good
operating condition as they were at the commencement of the Lease, ordinary wear
and tear excepted. Should Lessee fail to surrender the Premises in the condition
described herein, it is agreed and understood that Lessor may elect to deem the
lease as a holdover lease pursuant to Paragraph 25 herein and Lessee shall pay
rent at the rate set forth in such Paragraph 25.
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7.3 ALTERATIONS AND ADDITIONS.
(A) Lessee shall not, without Lessor's prior written consent, make
any alterations, improvements, additions, Utility Installations or repairs in,
on or about the Premises, or the Office Building Project. As used in this
paragraph 7.3, the term "Utility Installation" shall mean carpeting, window and
wall coverings, power panels, electrical distribution systems, lighting
fixtures, air conditioning, plumbing, and telephone and telecommunication wiring
and equipment. At the expiration of the term, Lessor may elect ownership or
require the removal of any or all of said alterations, improvements, additions
or Utility Installations, and the restoration of the Premises and the Office
Building Project to their prior condition, at Lessee's expense. Should Lessor
permit Lessee to make its own alterations, improvements, additions or Utility
Installations, Lessee shall use only such contractor as has been expressly
approved by Lessor, which approval shall not be unreasonable withheld or
delayed, and 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 materialmen'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, or use a contractor not
expressly approved by Lessor, Lessor may, within twenty (20) days of discovery
of any such condition, require that Lessee remove any part or all of the same,
provided such alterations, improvements, additions or Utility Installations are
deemed to be hazardous in the reasonable discretion of Lessor.
(B) Any alterations, improvements, additions or Utility
Installations in or about the Premises or the Office Building Project that
Lessee shall desire to make shall be presented to Lessor in written form, with
proposed detailed plans. If Lessor shall give its consent to Lessee's making
such alterations, improvements, additions or Utility Installations, the consent
shall be deemed conditioned upon Lessee acquiring a permit to do so from the
applicable governmental agencies, if required, furnishing a copy thereof to
Lessor prior to the commencement of the work, and material compliance by Lessee
with all conditions of said permit in a prompt and expeditious manner.
(C) Lessee shall pay, when due, all proper claims for labor or
materials furnished or alleged to have been furnished to or for Lessee or for
use in the Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Premises, the Building or the Office Building
Project, or any interest therein.
(D) Lessee shall give Lessor not less than ten (10) days notice
prior to the commencement of any work in the Premises by Lessee, and Lessor
shall have the right to post notices of non-responsibility in or on the Premises
or the Building 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, the Building or the Office Building
Project, 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, the Building and the Office Building Project free
from the effect of such lien or claim. In addition, Lessor may require Lessee to
pay Lessor's reasonable attorneys' fees and costs in participating in such
action if Lessor shall decide it is to Lessor's best interest so to do.
(E) All alterations, improvements, additions and Utility
Installations (whether or not such Utility Installations constitute trade
fixtures of Lessee), which may be made to the Premises by Lessee, including but
not limited to, floor coverings, paneling, doors, drapes, built-ins, moldings,
sound attenuation, and lighting and telephone or communication systems, conduit,
wiring and outlets, shall be made and done in a good and workmanlike manner and
of good and sufficient quality and materials and shall be the property of Lessor
and remain upon and be surrendered with the Premises at the expiration of the
Lease term, unless Lessor requires their removal pursuant to paragraph 7.3(a).
Provided Lessee is not in default, notwithstanding the provisions of this
paragraph 7.3(e), Lessee's personal property and equipment, other than that
which is affixed to the Premises so that it cannot be removed by Lessee subject
to the provisions of paragraph 7.2.
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(F) Lessee shall provide Lessor with as-built plans and
specifications for any alterations, improvements, additions or Utility
Installations.
7.4 UTILITY ADDITIONS. Lessor reserves the right to install new or
additional utility facilities throughout the Office Building Project for the
benefit of Lessor or Lessee, or any other lessee of the Office Building Project,
including, but not by way of limitation, such utilities as plumbing, electrical
systems, communication systems, and fire protection and detection systems, so
long as such installations do not unreasonably interfere with Lessee's use of
the Premises.
8. INSURANCE; INDEMNITY.
8.1 LIABILITY INSURANCE.
(A) CARRIED BY LESSEE. Lessee shall obtain and keep in force a
Commercial General Liability Policy of Insurance protecting Lessee and Lessor as
an additional insured against claims for bodily injury, personal injury and
property damage based upon or arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto. Such insurance
shall be on an occurrence basis providing single limit coverage in an amount not
less than $2,000,000 per occurrence with an "ADDITIONAL INSURED-MANAGERS AND
LESSORS OF PREMISES Endorsement" and contain the "AMENDMENT OF THE POLLUTION
EXCLUSION ENDORSEMENT" for damage caused by heat, smoke or fumes from a hostile
fire. The Policy shall not contain any Insured exclusions as between Insured
persons or organizations, but shall include coverage for liability assumed under
this Lease as an "insured contract" for the performance of Lessee's indemnity
obligations under this Lease. The limits of said insurance shall not, however,
limit the liability of Lessee nor relieve Lessee of any obligation hereunder.
All insurance carried by Lessee shall be primary to and not contributory with
any similar insurance carried by Lessor, whose insurance shall be considered
excess insurance only.
(B) CARRIED BY LESSOR. All insurance maintained by Lessor shall be
for the sole benefit of Lessor and under Lessor's sole control.
(1) PROPERTY INSURANCE. Lessor agrees to maintain property
insurance insuring the Building against damage or destruction due to risks
including fire, vandalism and malicious mischief in an amount not less than the
replacement cost thereof in the form and with deductibles and endorsements as
selected by Lessor At its election, Lessor may instead obtain "All Risk"
coverage, and may also obtain earthquake, pollution, and/or flood insurance in
amounts selected by Lessor.
(2) OPTIONAL INSURANCE. Lessor, at Lessor's option, may also
carry insurance against loss of rent, in an amount equal to the amount of Base
Rent and Additional Rent that Lessor could be required to xxxxx to all Building
tenants in the event of condemnation, damage or destruction for a period of
twelve (12) months. Lessor may also carry such other insurance, as Lessor may
deem prudent or advisable, including, without limitation, liability insurance in
such amounts and on such terms, as Lessor shall determine. Lessor shall not be
obligated to insure any furniture, machinery, goods, inventory or supplies which
Tenant may keep or maintain in the Premises, or any leasehold improvements,
additions or alterations within the Premises.
(C) ADJACENT PREMISES. If the Premises are part of a larger
building, or of a group of buildings owned by Lessor which are adjacent to the
Premises, the Lessee shall pay for any increase in the premiums for the property
insurance of such building or buildings if said increase is caused by Lessee's
acts, omissions, use or occupancy of the Premises.
8.2 LESSEE'S PROPERTY/BUSINESS INTERRUPTION INSURANCE.
(A) PROPERTY DAMAGE. Lessee shall obtain and maintain insurance
coverage on all of Lessee's personal property, Trade Fixtures, and Lessee Owned
Alterations and Utility Installations. Such insurance shall be full replacement
cost coverage with a deductible of not to exceed $1,000 per occurrence. The
proceeds from any such insurance shall be used by Lessee for the replacement of
personal property, Trade Fixtures and Lessee Owned Alterations and Utility
Installations. Lessee shall provide Lessor with written evidence that such
insurance is in force.
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(B) BUSINESS INTERRUPTION. Lessee shall obtain and maintain loss of
income and extra expense insurance in amounts as will reimburse Lessee for
direct or indirect loss of earnings attributable to all perils commonly insured
against by prudent lessees in the business of Lessee or attributable to
prevention of access to the Premises as a result of such perils.
(C) NO REPRESENTATION OF ADEQUATE COVERAGE. Lessor makes no
representation that the limits or forms of coverage of insurance specified
herein are adequate to cover Lessee's property, business operations or
obligations under this Lease.
8.3 INSURANCE POLICIES. Insurance required herein shall be by companies
duly licensed or admitted to transact business in the state where the Premises
are located, and maintaining during the policy term a "General Policyholders
Rating" of at least A-, V, as set forth in the most current issue of "Best's
Insurance Guide" or such other rating as may be required by a Lender. Lessee
shall not do or permit to be done anything that invalidates the required
insurance policies. Lessee shall, prior to the Start Date, deliver to Lessor
certified copies of policies of such insurance or certificates evidencing the
existence and amounts of the required insurance. No such policy shall be
cancelable or subject to 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 evidence of renewals or
"insurance binders" evidencing renewal thereof, or Lessor may order such
insurance and charge the cost thereof to Lessee, which amount shall be payable
by Lessee to Lessor upon demand. Such policies shall be for a term of at least
one year, or the length of the remaining term of this Lease, whichever is less.
8.4 WAIVER OF SUBROGATION. Without affecting any other rights or remedies,
Lessee and Lessor each hereby release and relieve the other, and waive their
entire right to recover damages against the other, for loss of or damage to its
property arising out of or Incident to the perils required to be insured against
herein The effect of such releases and waivers is not limited by the amount of
insurance carried or required, or by any deductibles applicable hereto. The
Parties agree to have their respective property damage insurance carriers waive
any right to subrogation that such companies may have against Lessor or Lessee,
as the case may be, so long as the insurance is not invalidated thereby.
8.5 INDEMNITY. Except for Lessor's gross negligence or willful misconduct,
Lessee shall indemnify, protect, defend and hold harmless the Premises, Lessor
and its agents, Lessor's master or ground lessor, partners and Lenders, from and
against any and all claims, loss of rents and/or damages, liens, judgments,
penalties, attorneys' and consultants' fees, expenses and/or liabilities arising
out of, involving, or in connection with the use and/or occupancy of the
Premises by Lessee. If any action or proceeding is brought against Lessor by
reason of any of the foregoing matters, Lessee shall upon notice defend the same
at Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor
shall cooperate with Lessee in such defense. Lessor need not have first paid any
such claim in order to be defended or indemnified.
8.6 EXEMPTION OF LESSOR FROM LIABILITY. Lessor shall not be liable for
injury or damage to the person or goods, wares, merchandise or other property of
Lessee, Lessee's employees, contractors, invitees, customers, or any other
person in or about the Premises, whether such damage or injury is caused by or
results from fire, steam, electricity, gas, water/moisture intrusion, mold or
rain, or from the breakage, leakage, obstruction or other defects of pipes, fire
sprinklers, wires, appliances, plumbing, HVAC or lighting fixtures, or from any
other cause, whether the said injury or damage 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, as a result of Lessor's active or
passive negligence. Lessor shall not be liable for any damages arising from any
act or neglect of any other tenant of Lessor. Notwithstanding Lessor's
negligence (active or passive) or breach of this Lease, Lessor shall under no
circumstances be liable for injury to Lessee's business or for any loss of
income or profit therefrom.
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(A) "Premises Damage" shall mean if the Premises are damaged or
destroyed to any extent.
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(B) "Premises Building Partial Damage" shall mean if the Building of
which the Premises are a part is damaged or destroyed to the extent that the
cost to repair is less than fifty percent (50%) of the then Replacement Cost of
the building.
(C) "Premises Building Total Destruction" shall mean if the Building
of which the Premises are a part is damaged or destroyed to the extent that the
cost to repair is fifty percent (50%) or more of the then Replacement Cost of
the Building.
(D) "Office Building Project Buildings" shall mean all of the
buildings on the Office Building Project site.
(E) "Office Building Project Buildings Total Destruction" shall mean
if the Office Building Project Buildings are damaged or destroyed to the extent
that the cost of repair is fifty percent (50%) or more of the then Replacement
Cost of the Office Building Project Buildings.
(F) "Insured Loss" shall mean damage or destruction that was caused
by an event required to be covered by the insurance described in paragraph 8.
The fact than an Insured Loss has a deductible amount shall not make the loss an
uninsured loss.
(G)"Replacement Cost" shall mean the amount of money necessary to be
spent in order to repair or rebuild the damaged area to the condition that
existed immediately prior to the damage occurring, excluding all improvements
made by Lessee, other than those installed by Lessor at Lessee's expense.
9.2 PREMISES DAMAGE; PREMISES BUILDING PARTIAL DAMAGE.
(A) INSURED LOSS: Subject to the provisions of paragraphs 9.4 and
9.5, if at any time during the term of this Lease there is damage which is an
Insured Loss and which falls into the classification of either Premises Damage
or Premises Building Partial Damage, then Lessor shall, as soon as reasonably
possible and to the extent the required materials and labor are readily
available through usual commercial channels, at Lessor's expense repair such
damage (but not Lessee's fixtures, equipment or tenant improvements originally
paid for by Lessee) to its condition existing at the time of the damage, and
this Lease shall continue in full force and effect.
(B) UNINSURED LOSS: Subject to the provisions of paragraphs 9.4 and
9.5, 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 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), which
damage prevents Lessee from making any substantial use of the Premises, 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
which event this Lease shall terminate as of the date of the occurrence of such
damage.
9.3 PREMISES BUILDING TOTAL DESTRUCTION; OFFICE BUILDING PROJECT BUILDINGS
TOTAL DESTRUCTION. Subject to the provisions of paragraphs 9.4 and 9.5, if at
any time during the term of this Lease there is damage, whether or not it is an
Insured Loss, which falls into the classification of either (i) Premises
Building Total Destruction, or (ii) Office Building Project Buildings Total
Destruction, then Lessor may at Lessor's option either (i) repair such damage or
destruction as soon as reasonably possible at Lessor's expense (to the extent
the required materials are readily available through usual commercial channels)
to its conditions existing at the time of the damage, but not Lessee's fixtures,
equipment or tenant improvements, and this Lease shall continue in full force
and effect, or (ii) give written notice to Lessee within thirty (30) days after
the date of occurrence of such damage of Lessor's intention to cancel and
terminate this Lease, in which case this Lease shall terminate as of the date of
the occurrence of such damage.
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9.4 DAMAGE NEAR END OF TERM.
(A) Subject to paragraph 9.4(b), if at any time during the last
twelve (12) months of the term of this Lease there is substantial damage to the
Premises, 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. If at any time during the last twelve (12) months of the term of this
Lease there is substantial damage to the Premises, Lessee may at Lessee's option
cancel and terminate this Lease as of the date of occurrence of such damage by
giving written notice to Lessor of Lessee's election to do so within thirty (30)
days after the occurrence of such damage, and Lessee shall not be liable for any
additional rent after such termination date.
(B) Notwithstanding paragraph 9.4(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 twenty (20) days after the occurrence
of an Insured Loss falling within the classification of Premises Damage during
the last twelve (12) months of the term of this Lease. If Lessee duly exercises
such option during said twenty (20) day period, Lessor shall, at Lessor's
expense, repair such damage, but not Lessee's fixtures, equipment or tenant
improvements, as soon as reasonably possible and this Lease shall continue in
full force and effect. If Lessee fails to exercise such option during said
twenty (20) day period, then Lessor may at Lessor's option terminate and cancel
this Lease as of the expiration of said twenty (20) day period, notwithstanding
any term or provision in the grant of option to the contrary.
9.5 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(A) In the event Lessor repairs or restores the Building or Premises
pursuant to the provisions of this paragraph 9, and any part of the Premises is
not usable (including loss of use due to loss of access or essential services),
the rent payable hereunder (including Operating Expenses) for the period during
which such damage, repair or restoration continues shall be abated, provided (i)
the damage was not the result of the negligence of Lessee, and (ii) such
abatement shall only be to the extent the operation and profitability of
Lessee's business as operated from the Premises is adversely affected . Except
for said 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
or the Building under the provisions of this Paragraph 9 and shall not commence
such repair or restoration within ninety (90) days after such occurrence, or if
Lessor shall not complete the restoration and repair within six (6) months after
such occurrence, 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 or completion, respectively, of such repair or restoration.
In such event this Lease shall terminate as of the date of such notice.
(C) Lessee agrees to cooperate with Lessor in connection with any
such restoration and repair, including but not limited to the approval and/or
execution of plans and specifications required.
9.6 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 Lessor so much of Lessee's security deposit as has not
theretofore been applied by Lessor.
9.7 WAIVER. Lessor and Lessee waive the provisions of any statute that
relates to termination of leases when leased property is destroyed and agree
that such event shall be governed by the terms of this Lease.
10. [INTENTIONALLY LEFT BLANK]
11. UTILITIES.
11.1 SERVICES PROVIDED BY LESSOR. Lessor shall provide heating,
ventilation, air conditioning, and janitorial service as reasonably required,
reasonable amounts of electricity for normal lighting and office machines during
the days/hours set forth in subparagraph 11. 3, water for reasonable and normal
drinking and lavatory use, and replacement light bulbs and/or florescent tubes
and ballasts for standard overhead fixtures. In the event the cost of
electricity for any single month(s) during the term of the Lease exceeds the
cost of electricity for the same month of the preceding year by fifteen percent
(15%), then such cost of electricity exceeding the fifteen percent (15%) shall
be paid by Lessee in conjunction with and in the same manner as Base Rent.
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11.2 SERVICES EXCLUSIVE TO LESSEE. Lessee shall pay for all water, gas,
heat, light, power, telephone and other utilities and services specially or
exclusively supplied and/or metered exclusively to the Premises or to Lessee,
together with any taxes thereon. If any such services are not separately metered
to the Premises, Lessee shall pay at Lessor's option a reasonable proportion to
be determined by Lessor of all charges jointly metered with other premises in
the Building.
11.3 HOURS OF SERVICE. Said services and utilities shall be provided
Monday through Friday, 7:00 a.m. to 7:00 p.m. "Standard Usage" is four (4) xxxxx
per square foot (based on "rentable" square footage) per hour excluding general
building HVAC during hours of service. All usage of services and utilities on
days or hours other than Monday through Friday, 7:00 a.m. to 7:00 p.m. shall be
defined as "After Hours Usage." Lessee agrees to pay Lessor, as additional rent,
the sum of $15.00 per hour billed in increments of one (1) hour for all After
Hour standard usage of services and utilities. Charges for such After Hour
usages shall be reflected in the monthly statement to Lessee and shall be paid
each month in conjunction with base rent pursuant to paragraph 4.1.
11.4 EXCESS USAGE BY LESSEE. Lessee shall not make connection to the
utilities except by or through existing outlets and shall not install or use
machinery or equipment in or about the Premises that uses excess water, lighting
or power, or suffer or permit any act that causes extra burden upon the
utilities or services, including but not limited to security services, over
Standard Usage for the Office Building Project. Lessor shall require Lessee to
reimburse Lessor for any excess expenses or costs that may arise out of a breach
of this subparagraph by Lessee. Lessor may, in its sole discretion, install at
Lessee's expense supplemental equipment and/or separate metering applicable to
Lessee's excess usage or loading. It is agreed and understood that all costs
(including, without limitation, costs incurred in determining excess usage)
incident to excess usage shall be paid by Lessee.
11.5 INTERRUPTIONS. There shall be no abatement of rent and Lessor shall
not be liable in any respect whatsoever for the inadequacy, stoppage,
interruption or discontinuance of any utility or service due to riot, strike,
labor dispute, breakdown, accident, repair or other cause beyond Lessor's
reasonable control or in cooperation with governmental request or directions.
12. ASSIGNMENTS AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED.
(A) Lessee shall not voluntarily or by operation of law assign,
sublet, transfer, mortgage or encumber all or any part of Lessee's interest in
this Lease or in the Premises without Lessor's prior written consent. Any such
assignment, sublet, transfer, mortgage, encumbrance or change in control of
Lessee is hereafter collectively referred to as "ASSIGNMENT OR SUBLETTING."
(B) An Assignment or Subletting without written consent shall, at
Lessor's option, be a Default curable after notice per Paragraph 13.1(c), or a
noncurable Breach without the necessity of any notice and grace period. If
Lessor elects to treat such unapproved Assignment or Subletting as a noncurable
Breach, Lessor may either (i) terminate this Lease, or (ii) upon thirty (30)
days written notice, increase the monthly Base Rent to one hundred ten percent
(110%) of the then current monthly base rent being paid by Lessee. Further, in
the event of such Breach and rental adjustment (i) the purchase price of any
option to purchase the Premises held by Lessee shall be subject to similar
adjustment to one hundred ten percent (110%) of the price previously in effect
and (ii) all fixed and non-fixed rental adjustments scheduled during the
remainder of the Lease term shall be increased to One Hundred Ten Percent (110%)
of the current market rent for new leases.
(C) Lessor and Lessee hereby acknowledge that Lessor's disapproval
of any proposed Assignment or Subletting pursuant to Paragraph 12 shall be
deemed reasonably withheld if based upon any reasonable factor, including,
without limitation, any or all of the following factors:
(I) The proposed Assignment or Subletting would result in more
than two subleases of portions of the Premises being in effect at any one time
during the Term;
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(II) The net effective rent payable by the Assignee or
Sublessee (adjusted on a rentable square foot basis) is less than the net
effective rent then being quoted by Lessor for new leases in the Building for
comparable size space for a comparable period of time, provided there is then
currently available rental space in the Building;
(III) The proposed Assignee or Sublessee is an existing tenant
of the Project or is negotiating with Lessor (or has negotiated with Lessor in
the last six (6) months) for space in the Project, provided there is then
currently available rentable space in the Building of comparable size for a
comparable period of time;
(IV) The proposed Assignee or Sublessee is a governmental
entity;
(V) The portion of the Premises to be assigned or sublet is
irregular in shape with inadequate means of ingress and egress;
(VI) The use of the Premises by the Assignee or Sublessee;
(AA) Is not permitted by the use provisions hereof; or
(BB) Violates any exclusive use granted by Lessee to
another tenant in the Building;
(VII) The Assignment or Subletting would likely result in a
significant increase in the use of the parking areas or Common Areas by the
Assignee's or Subtenant's employees or visitors, and/or significantly increase
the demand upon utilities and services to be provided by Lessor to the Premises;
(VIII) The Assignee or Sublessee does not have the financial
capacity to fulfill the obligations imposed by the Assignment or Subletting;
(IX) The Assignee or Sublessee is not in Lessee's reasonable
opinion of reputable or good character; or
(X) Lessee is in default or breach under this Lease as defined
in Paragraph 13.1.
12.2 TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND SUBLETTING.
(A) Regardless of Lessor's consent, any Assignment or Subletting
shall not (i) be effective without the express written assumption by such
Assignee or Sublessee of the obligations of Lessee under this Lease; (ii)
release Lessee of any obligations hereunder; or (iii) alter the primary
liability of Lessee for the payment of Rent or for the performance of any other
obligations to be performed by Lessee.
(B) Lessor may accept Rent or performance of Lessee's obligations
from any person other than Lessee pending approval or disapproval of an
Assignment. Neither a delay in the approval or disapproval of such Assignment
nor the acceptance of Rent or performance shall constitute a waiver or estoppel
of Lessor's right to exercise its remedies for Lessee's Default or Breach.
(C) Lessor's consent to any Assignment or Subletting shall not
constitute consent to any subsequent Assignment or Subletting.
(D) In the event of any Default or Breach by Lessee, Lessor may
proceed directly against Lessee, any Guarantors or anyone else responsible for
the performance of Lessee's obligations under this Lease, including any Assignee
or Sublessee, without first exhausting Lessor's remedies against any other
person or entity responsible therefore to Lessor, or any security held by
Lessor.
(E) Each request for consent to an Assignment or Subletting shall be
in writing, accompanied by information relevant to Lessor's determination as to
the financial and operational responsibility and appropriateness of the proposed
Assignee or Sublessee, including but not limited to the intended use and/or
required modification of the Premises, if any, together with a fee of $500.00 as
consideration for Lessor's considering and processing said request. Lessee
agrees to provide Lessor with such other or additional information and/or
documentation as may be reasonably requested.
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(F) Any Assignee of, or Sublessee under, this Lease shall, by reason
of accepting such Assignment or entering into such Sublease, be deemed to have
assumed and agreed to conform and comply with each and every term, covenant,
condition and obligation herein to be observed or performed by Lessee during the
term of said Assignment or Sublease, other than such obligations as are contrary
to or inconsistent with provisions of an Assignment or Sublease to which Lessor
has specifically consented in writing.
12.3 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. The
following terms and conditions shall apply to any Subletting by Lessee of all or
any part of the Premises and shall be deemed included in all subleases under
this Lease whether or not expressly incorporated therein:
(A) Subject to paragraph 12.4, Lessee hereby assigns and transfers
to Lessor all of Lessee's interest in all Rent payable on any Sublease, and
Lessor may collect such Rent and apply same toward Lessee's obligations under
this Lease; provided, however, that until a Breach shall occur in the
performance of Lessee's obligations, Lessee may collect said Rent. Lessor shall
not by reason of the foregoing or any Assignment of such sublease, nor by reason
of the collection of Rent, be deemed liable to the Sublessee for any failure to
Lessee to perform and comply with any of Lessee's obligations to such Sublessee.
Lessee hereby irrevocably authorizes and directs any such Sublessee, upon
receipt of a written notice from Lessor stating that a Breach exists in the
performance of Lessee's obligations under this Lease, to pay to Lessor all Rent
due and to become due under the Sublease. Sublessee shall rely upon any such
notice from Lessor and shall pay all Rents to Lessor without any obligation or
right to inquire as to whether such Breach exists, notwithstanding any claim
from Lessee to the contrary.
(B) In the event of a Breach by Lessee, Lessor may, at its option,
require Sublessee to attorn to Lessor, in which event Lessor shall undertake the
obligations of the Sublessor under such Sublease from the time of the exercise
of said option to the expiration of such Sublease; provided, however, Lessor
shall not be liable for any prepaid rents or security deposit paid by such
Sublessee to such Sublessor or for any prior Defaults or Breaches by such
Sublessor.
(C) Any matter requiring the consent of the Sublessor under a
Sublease shall also require the consent of Lessor.
(D) No Sublessee shall further assign or sublet all or any part of
the Premises without Lessor's prior written consent.
(E) Lessor shall deliver a copy of any Notice of Default or Breach
by Lessee to the Sublessee, who shall have the right to cure the Default of
Lessee within the grace period, if any, specified in such notice The Sublessee
shall have a right of reimbursement and offset from and against Lessee for any
such Defaults cured by the Sublessee.
(F) Lessee and/or Sublessee shall be responsible for paying all
costs associated with Subletting and not be entitled to credit such associated
costs against rent (or other consideration) payable on any Sublease It is
expressly understood and agreed that all rent (or other consideration) payable
on any Sublease shall be paid to Lessor without offset or credit.
12.4 ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO ASSIGNMENT AND
SUBLETTING. It is the intent of the parties hereto that the Lease shall confer
upon Lessee only the right to use and occupy the Premises and to exercise such
other rights as are conferred upon Lessee by this Lease. The parties agree that
this Lease is not intended to have a bonus or enhanced value to Lessee, nor to
serve as a vehicle whereby Lessee may profit by a future assignment or sublet of
this Lease of a right to use or occupy the Premises as a result of any favorable
terms contained herein or any favorable changes in the market for commercial
lease space. It is the intent of the parties that any such bonus or enhanced
value that may attach to this Lease shall be and remain the exclusive property
of the Lessor. In order to carry out this intent, in the event Lessee seeks to
assign or transfer its interest in this Lease of the Premises, Lessor shall have
the following options which may be exercised at its sole election, without
limiting Lessor in the exercise of any other right or remedy at law or equity or
under this Lease which Lessor may have by reason of such proposed assignment or
sublet.
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(A) Lessor may terminate this Lease and release Lessee from any
further rental obligations thereunder by sending Lessee written notice of such
termination within forty -five (45) days after notice of intent to assign or
sublet is deemed given by Lessee, provided, however, that Lessee may withdraw
its notice of intent by written notice to Lessor at any time within ten (10)
days after receipt by Lessee of Lessor's notice of termination, in which event
this Lease shall continue in full force and effect. If Lessor elects to
terminate this Lease and if Lessee does not withdraw its notice of intent,
Lessee shall surrender the Premises pursuant to the terms of this Lease, within
sixty (60) days after notice of intent to transfer is deemed given by Lessee and
on such date as designated by Lessor.
(B) Lessor may, within forty-five (45) days after notice of intent
to assign or sublet is deemed given by Lessee, acquire the interest in this
Lease and the Premises that Lessee proposed to assign or sublet, on the same
terms and conditions as the proposed assignment or sublet.
(C) Lessor may consent to the proposed assignment or sublet,
provided that as a condition to such consent, Lessor shall have the right to
require that any and all rent paid by the assignee tenant or subtenant,
including, without limitation, any rent in excess of the rentals to be paid
under this Lease shall be paid directly to Lessor at the time and place
specified in this Lease. For the purpose of this paragraph, the term "rent"
shall include any consideration of any kind received, or to be received from the
assignee tenant or subtenant. If such sums are related to Lessee's interest in
the Lease or in the Premises, including, without limitation, expense
reimbursements or advances, the value of services performed, key money, bonus
money and/or payments for Lessee's personal property in excess of the book value
of such property. The term "personal property" as used in this paragraph shall
include, without limitation, assets, fixtures, inventories, accounts, good will,
equipment, furniture, general intangibles, and any capital stock or other equity
ownership interest of Lessee.
DEFAULTS; BREACH; REMEDIES.
13.1 DEFAULT; BREACH. A "Default" is defined as a failure by the Lessee to
comply with or perform any of the terms, covenants, conditions or rules under
this Lease. A "Breach" is defined as the occurrence of one or more of the
following Defaults, and the failure of Lessee to cure such Default within any
applicable grace period.
(A) The abandonment of the Premises; or the vacating of the Premises
without providing a commercially reasonable level of security, and/or Security
Deposit or where the coverage of the property insurance described in Paragraph
8.1 is jeopardized as a result thereof, or without providing reasonable
assurances to minimize potential vandalism.
(B) The failure of Lessee to make any payment of Rent, Operating
Expense, or any Security Deposit required to be made by Lessee hereunder,
whether to Lessor or to a third party, when due, to provide reasonable evidence
of insurance or surety bond, or to fulfill any obligation under this Lease which
endangers or threatens life or property, where such failure continues for a
period of ten (10) days following written notice to Lessee by Lessor.
(C) The failure by Lessee to provide (i) reasonable written evidence
of compliance with Applicable Requirements, (ii) the service contracts, (iii)
the rescission of an unauthorized Assignment or Subletting, (iv) a Tenancy
Statement, (v) a requested subordination, (vi) evidence concerning any guaranty
and/or Guarantor, (vii) any document requested under Paragraph 40 (easements),
or (viii) any other documentation or information which Lessor may reasonably
require of Lessee under the terms of this Lease, where any such failure
continues for a period of ten (10) days following written notice to Lessee by
Lessor.
(D) A Default by Lessee as to the terms, covenants, conditions or
provisions of this Lease, or of the attached rules adopted hereunder including,
without limitation, Vehicle Parking (Paragraph 2.2), Security Deposit (Paragraph
5), Use (Paragraph 6), Maintenance and Alterations (Paragraphs 7.2, 7.3 and
7.4), Utilities (Paragraph 11), Assignment and Subletting (Paragraph 12),
Lessor's Access (Paragraph 32), Hazardous Substances (Paragraph 49), where such
Default continues for a period of ten (10) days after written notice to Lessee
by Lessor.
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(E) The occurrence of any of the following events: (i) the making of
any general arrangement or assignment for the benefit of creditors; (ii)
becoming a "DEBTOR" as defined in 11 U.S.C. Sec. 101 or any successor statute
thereto (unless, in the case of a petition filed against Lessee, the same is
dismissed within sixty (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 thirty (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 thirty (30) days; provided, however, in the event that any
provision of this subparagraph (e) is contrary to any applicable law, such
provision shall be of no force or effect, and not affect the validity of the
remaining provisions.
(F) The discovery that any financial statement of Lessee or of any
Guarantor given to Lessor was materially false.
(G) If the performance of Lessee's obligations under this Lease is
guaranteed (i) the death of a Guarantor; (ii) the termination of a Guarantor's
liability with respect to this Lease other than in accordance with the terms of
such guaranty; (iii) a Guarantor's becoming insolvent or the subject of a
bankruptcy filing; (iv) a Guarantor's refusal to honor the guaranty; or (v) a
Guarantor's breach of its guaranty obligation on an anticipatory basis, and
Lessee's failure, within sixty (60) days following written notice of any such
event, to provide written alternative assurance or security, which, when coupled
with the then existing resources of Lessee, equals or exceeds the combined
financial resources of Lessee and the Guarantors that existed at the time of
execution of this Lease.
(H) In the event Lessee has one or more additional leases for other
premises in the Office Building Project, then it is acknowledged and agreed that
a default under such additional lease(s) shall also constitute a default under
this Lease.
13.2 REMEDIES. If Lessee fails to perform any of its affirmative duties or
obligations, within ten (10) days after written notice (or in case of an
emergency, without notice), Lessor may, at its option, perform such duty or
obligation on Lessee's behalf, including but not limited to the obtaining of
reasonably required bonds, insurance policies, or governmental licenses, permits
or approvals. The costs and expenses of any such performance by Lessor shall be
due and payable by Lessee upon receipt of invoice therefore. If any check given
to Lessor by Lessee shall not be honored by the bank upon which it is drawn,
Lessor, at its option, may require all future payments to be made by Lessee to
be by cashier's check. In the event of a Breach, Lessor may, with or without
further notice or demand, and without limiting Lessor in the exercise of any
right or remedy, which Lessor may have by reason of such Breach:
(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 to Lessor. In such event Lessor shall be
entitled to recover from Lessee (i) the unpaid Rent which had been earned at the
time of termination; (ii) the worth at the time of award of the amount by which
the unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that the Lessee proves could have
been reasonably avoided; (iii) the worth at the time of award of the amount by
which the unpaid rent for the balance of the term after the time of award
exceeds the amount of such rental loss that the Lessee proves could be
reasonably avoided: and (iv) any other amount necessary to compensate Lessor for
all the detriment proximately caused by the Lessee's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom, including but not limited to the cost of recovering
possession of the Premises, expenses of reletting, including necessary
renovation and alteration of the Premises, reasonable attorneys' fees, and that
portion of any leasing commission paid by Lessor in connection with this Lease
applicable to the unexpired term of this Lease. The worth at the time of award
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of the amount referred to in provision (iii) of the immediately preceding
sentence shall be computed by discounting such amount at the discount rate of
the Federal Reserve Bank of the District within which the Premises are located
at the time of award plus one percent (1%). Efforts by Lessor to mitigate
damages caused by Lessee's Breach of this Lease shall waive Lessor's right to
recover damages under Paragraph 12.If termination of this Lease is obtained
through the provisional remedy of unlawful detainer, Lessor shall have the right
to recover in such proceeding any unpaid Rent and damages as are recoverable
therein, or Lessor may reserve the right to recover all or any part thereof in a
separate suit. If a notice and grace period required under Paragraph 13.1 were
not previously given, a notice to pay rent or quit, or to perform or quit given
to Lessee under the unlawful detainer statute shall also constitute the notice
required by Paragraph 13.1. In such case, the applicable grace period required
by Paragraph 13.1 and the unlawful detainer statute shall run concurrently, and
the failure of Lessee to cure the Default within the greater of the two such
grace periods shall constitute both an unlawful detainer and a Breach of this
Lease entitling Lessor to the remedies provided for in this Lease and/or by said
statute.
(B) Continue this Lease and Lessee's right to possession and recover
the Rent as it becomes due, in which event Lessee may sublet or assign, subject
only to reasonable limitations, as described in California Civil Code Section
1951.4. Acts of maintenance, efforts to re-let, and/or the appointment of a
receiver to protect the Lessor's interests, shall not constitute a termination
of the Lessee's right to possession.
(C) Pursue any other remedy now or hereafter available under the
laws or judicial decisions of the state wherein the Premises are located. The
expiration or termination of this Lease and/or the termination of Lessee's right
to possession shall not relieve Lessee from liability under any indemnity
provisions of this Lease as to matters occurring or accruing during the term
hereof or by reason of Lessee's occupancy of the premises.
13.3 INDUCEMENT RECAPTURE. Any agreement for free or abated rent or other
charges, or for the giving or paying by Lessor to or for Lessee of any cash or
other bonus, inducement or consideration for Lessee's entering into this Lease,
all of which concessions are hereinafter referred to as "Inducement Provisions,"
shall be deemed conditioned upon Lessee's full and faithful performance of all
of the terms, covenants and conditions of this Lease. Upon Breach of this Lease
by Lessee, any such Inducement Provision shall automatically be deemed deleted
from this Lease and of no further force or effect, and any rent, other charge,
bonus, inducement or consideration theretofore abated, given or paid by Lessor
under such an inducement Provision shall be immediately due and payable by
Lessee to Lessor, notwithstanding any subsequent cure of said Breach by Lessee
The acceptance by Lessor of rent or the cure of the Breach which initiated the
operation of this paragraph shall not be deemed a waiver by Lessor of the
provisions of this paragraph unless specifically so stated in writing by Lessor
at the time of such acceptance.
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by
Lessee of Rent 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 that may be imposed upon Lessor by any Lender. Accordingly, if any Rent
shall not be received by Lessor within ten (10) days after such amount shall be
due, then, without any requirement for notice to Lessee, Lessee shall pay to
Lessor a one-time late charge equal to six percent (6%) of each 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 such late
payment. Acceptance of such late charge by Lessor shall in no event constitute a
waiver of Lessee's Default or Breach with respect to such overdue amount, nor
prevent the exercise of any of the other rights and remedies granted hereunder.
13.5 RETURNED CHECK CHARGES. Lessee hereby acknowledges and agrees
that a service charge of $50.00 will be assessed and charged to Lessee for each
check that is returned because of insufficient funds.
13.6 NOTICE TO PAY RENT CHARGE. Lessee hereby acknowledges and
agrees that a charge of $75.00 will be assessed and charged to Lessee for each
Three Day Notice to Pay Rent or Quit (or other termination notice based on
Default) served on Lessee.
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14. CONDEMNATION. If the Premises or any portion thereof or the Office Building
Project 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; provided that if so
much of the Premises or the Office Building Project are taken by such
condemnation as would substantially and adversely affect the operation and
profitability of Lessee's business conducted from the Premises, Lessee shall
have the option, to be exercised only in writing within thirty (30) days after
Lessor shall have given Lessee written notice of such taking (or in the absence
of such notice, within thirty (30) days after the condemning authority shall
have taken possession), to 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 Premises taken bears to the
total floor area of the Premises, Common Areas taken shall be excluded from the
Common Areas usable by Lessee and no reduction of rent shall occur with respect
thereto or by reason thereof. Lessor shall have the option in its sole
discretion to terminate this Lease as of the taking of possession by the
condemning authority, by giving written notice to Lessee of such election within
thirty (30) days after receipt of notice of a taking by condemnation of any part
of the Premises or the Office Building Project Any award for the taking of all
or any part of the Premises or the Office Building Project under the power of
eminent domain or any diminution in value of the leasehold or for the taking of
the fee, or as severance damages; provided, however, that Lessee shall be
entitled to any separate award for loss of or damage to Lessee's trade fixtures,
removable personal property and unamortized tenant improvements that have been
paid for by Lessee. For that purpose the cost of such improvements shall be
amortized over the original term of this Lease excluding any options. 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.
15. ESTOPPEL CERTIFICATE.
(A) Each party (as "responding party") shall at any time upon not less
than ten (10) days prior written notice from the other party ("requesting
party") execute, acknowledge and deliver to the requesting party 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 which
the rent and other charges are paid in advance, if any, and (ii) acknowledging
that there are not, to the responding party's knowledge, any uncured defaults on
the part of the requesting party, or specifying such defaults if any are
claimed. Any such statement may be conclusively relied upon by any prospective
purchaser or encumbrancer of the Office Building Project or of the business of
Lessee.
(B) At the requesting party's option, the failure to deliver such
statement within such time shall be a material default of this Lease by the
party who is to respond, without any further notice to such party, or it shall
be conclusive upon such party that (i) this Lease is in full force and effect,
without modification except as may be represented by the requesting party, (ii)
there are not uncured defaults in the requesting party's performance, and (iii)
if Lessor is the requesting party, not more than one month's rent has been paid
in advance.
(C) If Lessor desires to finance, refinance, or sell the Office Building
Project, 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 (3) 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.
16. 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 Office Building Project. 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 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.
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17. SEVERABILITY. The invalidity of any provision of this Lease as determined by
a court of competent jurisdiction shall in no way affect the validity of any
other provision hereof.
18. 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 or judgments 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.
19. TIME OF ESSENCE. Time is of the essence with respect to the obligations to
be performed under this Lease.
20. ADDITIONAL RENT. All monetary obligations of Lessee to Lessor under the
terms of this Lease, including but not limited to late charges, Three-Day Notice
charges (Paragraph 13.6), returned check charges, attorney's fees and any other
expenses payable by Lessee hereunder shall be deemed to be rent.
20.1 CREDITS TO LESSEE'S ACCOUNT. Lessor shall promptly credit Lessee's
account for all payments received from Lessee. Such payments shall be first
credited to those sums due under this Lease Agreement, including but not limited
to Base Rent, late charges, 3-Day Notice charges (Paragraph 13.6), returned
check fees and attorney's fees which were incurred earliest in time (oldest
chargeable items). Nothing in this paragraph (including Lessor's acceptance of a
partial payment on account balance) shall be construed or constitute a waiver by
Lessor of any provision hereof or of any subsequent breach by Lessee of the same
or any other provision.
21. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
or contemporaneous 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 acknowledged that neither any cooperating broker on
this transaction nor the Lessor nor any employee 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 the Premises or the Office
Building Project and Lessee acknowledges that Lessee assumes all responsibility
regarding the Occupational Safety Health Act and the Americans with Disabilities
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.
22. NOTICES. Any notice required or permitted to be given hereunder shall be in
writing and may be given by personal delivery or by certified or registered
mail, and shall be deemed sufficiently given if delivered or addressed to Lessee
or to Lessor at the address noted below or adjacent to the signature of the
respective parties, as the case may be. Mailed notices shall be deemed given
upon actual receipt at the address required, or forty-eight hours following
deposit in the mail, postage prepaid, whichever first occurs. Either party may
by notice to the other specify a different address for notice purposes except
that upon Lessee's taking possession of the 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.
23. WAIVERS. No waiver by Lessor of 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.
24. 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.
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25. 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 as defined by Section 1945 of the California Civil
Code with all of the provisions of this Lease pertaining to the obligations of
Lessee, except that the rent payable shall be two hundred percent (200%) of the
rent payable immediately preceding the termination date of this Lease, and all
Options, if any, granted under the terms of this Lease shall be deemed
terminated and be of no further effect during said tenancy.
26. BROKERAGE COMMISSIONS: Lessee represents and warrants that Lessee has dealt
with no broker or agent other than: none. Lessee agrees to indemnify and hold
the Lessor harmless from and against any claims by any broker, agent or other
person/entity claiming a commission or other form of compensation by virtue of
having dealt with Lessee with regard to this leasing transaction. The provisions
of this paragraph shall survive the termination of this Lease.
27. CUMULATIVE DAMAGES. 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 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
16, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the State
where the Office Building Project is located and any litigation concerning this
Lease between the parties hereto shall be initiated in the county in which the
Office Building Project is located.
30. SUBORDINATION.
(A) This Lease, and any Option or right of first refusal granted hereby,
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
Office Building Project 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 and any
Options granted hereby prior to the lien of its mortgage, deed of trust or
ground lease, and shall give written notice thereof to Lessee, this Lease and
such Options shall be deemed prior to such mortgage, deed of trust or ground
lease, whether this Lease or such Options are 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, subordination, or to make this Lease or any Option granted herein
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 ten (10) days after
written demand shall constitute a material default by Lessee hereunder without
further notice to Lessee or, at Lessor's option, Lessor shall execute such
documents on behalf of Lessee and 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.
31.1 If either party brings (or defends) an action to enforce the terms
hereof or declare rights hereunder, the prevailing party in any such action,
trial or appeal thereon, shall be entitled to its reasonable attorneys' fees to
be paid by the losing party as fixed by the court in the same or a separate
suit, and whether or not such action is pursued to decision or judgment.
31.2 The attorneys' fee award shall not be computed in accordance with any
court fee schedule, but shall be such as to fully reimburse all attorneys' fees
reasonably incurred in good faith.
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31.3 In addition to the charges authorized in Section 13.6, Lessor shall
be entitled to reasonable attorneys' fees and all other costs and expenses
incurred in the preparation and service of notice of default and consultations
in connection therewith and any other legal services necessitated by Lessee
default, whether or not a legal action is subsequently commenced in connection
with such default.
31.4 JURY TRIAL WAIVER. To the extent permitted by law, Lessor and Lessee
hereby waive their respective right to trial by jury of any cause of action,
claim, counterclaim or cross-complaint in any action, proceeding and/or hearing
brought by either Lessor against Lessee or Lessee against Lessor on any matter
whatsoever arising out of, or in any way connected with, this lease, the
relationship of Lessor and Lessee, Lessee's use or occupancy of the Premises, or
any claim of injury or damage, or the enforcement of any remedy under any law,
statute, or regulation, emergency or otherwise, now or hereafter in effect.
32. LESSOR'S ACCESS.
32.1 Lessor and Lessor's agents shall have the right to enter the Premises
at reasonable times (Monday through Friday, during normal business hours,
following twenty-four (24) hours telephonic notice by Lessor or Lessor's agents)
for the purpose of inspecting the same, performing any services required of
Lessor, showing the same to prospective purchasers, lenders, or lessees, taking
such safety measures, erecting such scaffolding or other necessary structures,
making such alterations, repairs, improvements or additions to the Premises or
the Office Building Project as Lessor may reasonably deem necessary or desirable
and the erecting, using and maintaining of utilities, services, pipes and
conduits through the Premises and/or other premises. Lessor may at any time
place on or about the Premises or the Building any ordinary "For Sale" signs and
Lessor may at any time during the last six (6) months of the term hereof place
on or about the Premises any ordinary "For Lease" signs.
32.2 All activities of Lessor pursuant to this paragraph shall be without
abatement of rent, and Lessor shall not have any liability to Lessee for the
same.
32.3 Lessor shall have the right to retain keys to the Premises and to
unlock all doors in or upon the Premises other than to files, vaults and safes,
and in the case of an emergency to enter the Premises by any reasonably
appropriate means, and any such entry shall not be deemed a forceable or
unlawful entry or detainer of the Premises or an eviction. Lessee waives any
charges for damages or injuries or interference with Lessee's property or
business in connection therewith.
33. AUCTIONS. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, an auction upon the premises or the Common Areas
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. The holding of any auction on the Premises or Common Areas in violation
of this paragraph shall constitute a material default of this Lease.
34. SIGNS. Lessee shall not place any sign upon the Premises or the Office
Building Project without Lessor's prior written consent. Under no circumstances
shall Lessee place a sign on any roof of the Office Building Project.
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 paragraphs 33 (auctions) and 34 (signs) 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 or delayed.
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.
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38. OPTIONS.
38.1 DEFINITION. "OPTION" shall mean (a) the right to extend the term of
or renew this Lease or to extend or renew any lease that Lessee has on other
property of Lessor; (b) the right of first refusal or first offer to lease
either the Premises or other property of Lessor; (c) the right to purchase or
the right of first refusal to purchase the Premises or other property of Lessor.
38.2 OPTIONS PERSONAL TO ORIGINAL LESSEE. Each option granted to Lessee in
this Lease is personal to the original Lessee, and cannot be assigned or
exercised by anyone other than said original Lessee and only while the original
Lessee is in full possession of the Premises and, if requested by Lessor, with
Lessee certifying that Lessee has no intention of thereafter assigning or
Subletting.
38.3 MULTIPLE OPTIONS. In the event that Lessor has any multiple options
to extend or renew this Lease, a later Option cannot be exercised unless the
prior Options have been validly exercised.
38.4 EFFECT OF DEFAULT ON OPTIONS.
(A) Lessee shall have no right to exercise an Option (i) during the
period commencing with the giving of any notice of Default and continuing until
said Default is cured; (ii) during the period of time any Rent is unpaid
(without regard to whether notice thereof is given Lessee); (iii) during the
time Lessee is in Breach of this Lease; or (iv) in the event that Lessee has
been given three (3) or more notices of separate Default, whether or not the
Defaults are cured, during the twelve (12) month period immediately preceding
the exercise of the Option; (v) becoming a "debtor" as defined in II USC Sec 101
during the term of this Lease.
(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 38.4(a).
(C) 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 prior to the commencement of the extended term, (i) Lessee fails to
pay Rent for a period of thir1y (30) days after such Rent becomes due (without
any necessity of Lessor to give notice thereof), (ii) Lessor gives to Lessee
three (3) or more notices of separate Default during any twelve (12) month
period, whether or not the Defaults are cured, or (iii) if Lessee commits a
Breach of this Lease.
39. SECURITY MEASURES - LESSOR'S RESERVATIONS.
39.1 Lessee hereby acknowledges that Lessor shall have no obligation
whatsoever to provide guard service or other security measures for the Project
in the Common Areas;
39.2 Lessee shall not:
(A) Use a representation (photographic or otherwise) of the Building
or the Office Building Project or their name(s) in connection with Lessee's
business;
(B) Suffer or permit anyone, except in emergency, to go upon the
roof of the Building.
40. EASEMENTS.
40.1 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 default of this Lease by Lessee without the need for
further notice to Lessee.
40.2 The obstruction of Lessee's view, air, or light by any structure
erected in the vicinity of the Building, whether by Lessor or third parties,
shall in no way affect this Lease or impose any liability upon Lessor.
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41. PERFORMANCE UNDER PROTEST. If at any time 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 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.
42. AUTHORITY. If Lessee is a corporation, trust, or general or limited
partnership, Lessee, and each individual executing this Lease on behalf of such
entity, represent and warrant that such individual 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.
43. CONFLICT. Any conflict between the printed provisions, Exhibits or Addendum
of this Lease and the typewritten or handwritten provisions, if any, shall be
controlled by the typewritten or handwritten provisions.
44. NO OFFER. Preparation of this Lease by Lessor or Lessor's agent and
submission of same to Lessee shall not be deemed an offer to Lessee to lease.
This Lease shall become binding upon Lessor and Lessee only when fully executed
by both parties.
45. LENDER MODIFICATIONS. Lessee agrees to make such reasonable modifications to
this Lease as may be reasonably required by an institutional lender in
connection with the obtaining of normal financing or refinancing of the Office
Building Project.
46. MULTIPLE PARTIES. If more than one person or entity is named as either
Lessor or Lessee herein, except as otherwise expressly provided herein, the
obligations of the Lessor or Lessee herein shall be the joint and several
responsibility of all persons or entities named herein as such Lessor or Lessee,
respectively.
47. WORK LETTER. N/A.
48. ATTACHMENTS. Attached hereto are the following documents ("Exhibits") that
are incorporated and become part of this Lease:
(A) Rules and Regulations (`Exhibit A').
(B) Other (specify):
49. HAZARDOUS SUBSTANCES.
49.1 REPORTABLE USES REQUIRE CONSENT.
(A) The term "HAZARDOUS SUBSTANCE" as used in this Lease shall mean
any product, substance, or waste whose presence, use, manufacture, disposal,
transportation, or release, either by itself or in combination with other
materials expected to be on the Premises, is either (i) potentially injurious to
the public health, safety or welfare, the environment or the Premises, (ii)
regulated or monitored by any governmental authority, or (iii) a basis for
potential liability of Lessor to any governmental agency or third party under
any applicable statute or common law theory. Hazardous Substances shall include,
but not be limited to, hydrocarbons, petroleums, gasoline, and/or crude oil or
any products, by-products or fractions thereof. Lessee shall not engage in any
activity in or on the Premises which constitutes a Reportable Use of Hazardous
Substances without the express prior written consent of Lessor and timely
compliance (at Lessee's expense) with all applicable laws, covenants, or
restrictions of record, building codes, regulations and ordinances ("Applicable
Requirements"). "Reportable Use" shall mean (i) the installation or use of any
above or below ground storage tank, (ii) the generation, possession, storage,
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use, transportation, or disposal of a Hazardous Substance that requires a permit
from, or with respect to which a report, notice, registration or business plan
is required to be filed with any governmental authority, and/or (iii) the
presence at the Premises of a Hazardous Substance with respect to which any
Applicable Requirements require that a notice be given to persons entering or
occupying the Premises or neighboring properties. Notwithstanding the foregoing,
Lessee may use any ordinary and customary materials reasonably required to be
used in the normal course of the Use as specified in paragraph 1.4 so long as
such use is in compliance with all Applicable Requirements, is not a Reportable
Use, and does not expose the Premises or neighboring property to any meaningful
risk of contamination or damage or expose Lessor to any liability therefor. In
addition, Lessor may condition its consent to any Reportable Use upon receiving
such additional assurances as Lessor reasonably deems necessary to protect
itself, the public, the Premises and/or the environment against damage,
contamination, injury and/or liability, including, but not limited to, the
installation (and removal on or before Lease expiration or termination) of
protective modifications (such as concrete encasements) and/or increasing the
Security Deposit.
(B) DUTY TO INFORM LESSOR. If Lessee knows, or has reasonable cause
to believe, that a Hazardous Substance has come to be located in, on, under or
about the Premises, other than as previously consented to by Lessor, Lessee
shall immediately give written notice of such fact to Lessor, and provide Lessor
with a copy of any report, notice, claim or other documentation which it has
concerning the presence of such Hazardous Substance.
(C) LESSEE REMEDIATION. Lessee shall not cause or permit any
Hazardous Substance to be spilled or released in, on, under, or about the
Premises (including through the plumbing or sanitary sewer system) and shall
promptly, at Lessee's expense, take all investigatory and/or remedial action
reasonably recommended, whether or not formally ordered or required, for the
cleanup of any contamination of, and for the maintenance, security and/or
monitoring of the Premises or neighboring properties, that was caused or
materially contributed to by Lessee, or pertaining to or involving any Hazardous
Substance brought onto the Premises during the term of this Lease, by or for
Lessee, or any third party.
(D) LESSEE INDEMNIFICATION. Lessee shall indemnify, defend and hold
Lessor, its agents, employees, lenders and ground lessor, if any, harmless from
and against any and all loss of rents and/or damages, liabilities, judgments,
claims, expenses, penalties, and attorneys' and consultants' fees arising out of
or involving any Hazardous Substance brought onto the Premises by or for Lessee,
or any third party (provided, however, that Lessee shall have no liability under
this Lease with respect to underground migration of any Hazardous Substance
under the Premises from adjacent properties). Lessee's obligations shall
include, but not be limited to, the effects of any contamination or injury to
person, property or the environment created or suffered by Lessee, and the cost
of investigation, removal, remediation, restoration and/or abatement, and shall
survive the expiration or termination of this Lease. No termination,
cancellation or release agreement entered into by Lessor and Lessee shall
release Lessee from its obligations under this Lease with respect to Hazardous
Substances, unless specifically so agreed by Lessor in writing at the time of
such agreement.
(E) LESSOR INDEMNIFICATION. Lessor and its successors and assigns
shall indemnify, defend, reimburse and hold Lessee, its employees and lenders,
harmless from and against any all environmental damages, including the cost
remediation, which existed as a result of Hazardous Substances on the Premises
prior to the Commencement Date or which are caused by the gross negligence or
willful misconduct of Lessor, its agents or employees. Lessor's obligations, as
and when required by the Applicable Requirements, shall include, but not be
limited to, the cost of investigation, removal, remediation, restoration and/or
abatement, and shall survive the expiration or termination of this Lease.
(F) INVESTIGATIONS AND REMEDIATIONS. Lessor shall retain the
responsibility and pay for any investigations or remediation measures required
by governmental entities having jurisdiction with respect to the existence of
Hazardous Substances on the Premises prior to the Commencement Date, unless such
remediation measure is required as a result of Lessee's use (including
"Alterations", as defined in paragraph 7.3(a) (above) of the Premises, In which
event Lessee shall be responsible for such payment. Lessee shall cooperate fully
in any such activities at the request of Lessor, including allowing Lessor and
Lessor's agents to have reasonable access to the Premises at reasonable times in
order to carry out Lessor's investigative and remedial responsibilities.
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(G) LESSOR TERMINATION OPTION. If a Hazardous Substance Condition
occurs during the term of this Lease, unless Lessee is legally responsible
therefor (in which case Lessee shall make the investigation and remediation
thereof required by the Applicable Requirements and this Lease shall continue in
full force and effect, but subject to Lessor's rights under Paragraph 13),
Lessor may, at Lessor's option, either (i) investigate and remediate such
Hazardous Substance Condition, if required, as soon as reasonably possible at
Lessor's expense, in which event this Lease shall continue in full force and
effect, or (ii) if the estimated cost to remediate such condition exceeds twelve
( 12) times the then monthly Base Rent or $100,000, whichever is greater, give
written notice to Lessee, within thirty (30) days after receipt by Lessor of
knowledge of the occurrence of such Hazardous Substance Condition of Lessor's
desire to terminate this Lease as of the date sixty (60) days following the date
of such notice. In the event Lessor elects to give a termination notice, Lessee
may, within ten (10) days thereafter, give written notice to Lessor of Lessee's
commitment to pay the amount by which the cost of the remediation of such
Hazardous Substance Condition exceeds an amount equal to twelve (12) times the
monthly Base Rent or $100,000, whichever is greater. Lessee shall provide Lessor
with said funds or satisfactory assurance thereof within thirty (30) days
following such commitment. In such event, this Lease shall continue in full
force and effect, and Lessor shall proceed to make such remediation, as soon as
reasonably possible after the required funds are available.
49.2 INSPECTION; COMPLIANCE. Lessor and Lessor's consultants shall have
the right to enter into Premises at any time, in the case of an emergency, and
otherwise at reasonable times, for the purpose of inspecting the condition of
the Premises and for verifying compliance by Lessee with this Lease. The cost of
any such inspections shall be paid by Lessor, unless a violation of Applicable
Requirements or a contamination is found to exist or be imminent, or the
inspection is requested or ordered by a governmental authority. In such case,
Lessee shall upon request reimburse Lessor for the cost of such inspections, so
long as such inspection is reasonably related to the violation or contamination.
50. SALE OF OFFICE BUILDING PROJECT. In the event the Office Building Project is
sold to a third party during the term of this Lease, Lessor or Lessor's
successor-in-interest shall have the right to terminate this Lease including any
"option" as defined in Paragraph 38.1 of this Lease. In the event Lessor elects
to terminate this Lease, Lessor shall deliver written notice of such election
(the "Termination Notice"). The Termination Notice shall specify that the Lease
shall terminate not less than six (6) months following delivery of the
Termination Notice. It is agreed and understood that the Termination Date
specified in paragraph 1.5 of the Basic Lease Provisions shall be advanced to
the date specified in the Termination Notice (but in no event less than six (6)
months following delivery of such Termination Notice).
51. "AS IS CONDITION." Lessee shall accept these Premises in their "as is"
condition, in clean and good-working order. Lessor shall paint the interior
walls of the Premises and clean carpets at Lessor's cost.
52. Lessor must have copy of Insurance Certificate before keys will be given out
for this unit.
53. Lessee is responsible for the cost of making Lessee's telephone, DSL and
computer related equipment, etc. lines active in Lessee's Premises. Lessee
understands that Lessee may use Airport II vendors for this work but Lessee will
be billed directly by the vendor used. Airport II assumes no liability for this
cost. Airport II will provide data and telephone wiring as described on the
floor plan if remodel work is part of this Lease.
54. Lessee will have access to Fitness Center for up to six (6) employees at no
charge.
55. Lessor will pay first $30,000.00 of Tenant Improvement Costs (TIC). Lessor
and Lessee will evenly split TIC of $30,000.01 to $50,000.00. Lessee will pay
100% of TIC over $50,000.00.
56. All previous leases for 0000 Xxxxxxxxxx Xxxxx and 0000 Xxxxxxxxxx Xxxxx,
Xxxxx 000 are void.
57. OFAC CERTIFICATION. Lessee certifies that it is not acting, directly or
indirectly, for or on behalf of any person, group, entity, or nation named by
any Executive Order or the United States Treasury Department as a terrorist,
"Specially Designated National and Blocked Person", or other banned or blocked
person, entity, nation, or transaction pursuant to any law, order, rule, or
regulation that is enforced or administered by the Office of Foreign Assets
Control; and it has not executed this Lease, directly or indirectly on behalf
of, or instigating or facilitating this Lease, directly or indirectly on behalf
of, any such person, group, entity, or nation. Lessee hereby agrees to defend,
indemnify, and hold harmless Lessor from and against any and all claims,
damages, losses, risks, liabilities, and expenses (including attorney's fees and
costs) arising from or related to any breach of the foregoing certification.
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LESSEE AND LESSOR 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.
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY LESSOR AS TO THE LEGAL
SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION
TO WHICH IT RELATES. THE LESSEE IS URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
2 RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE
PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE POSSIBLE
PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PREMISES, THE STRUCTURAL
INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, AND THE SUITABILITY
OF THE PREMISES FOR LESSEE'S INTENDED USE.
LESSOR: LESSEE:
Airport II Property Management, LLC Sysview Technology, Inc.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
Address: 0000 Xxxxxxxxxx Xxxxx Address: 0000 Xxxxxxxxxx Xxxxx
Xxxxx 000 Xxx Xxxx, XX 00000
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
EXHIBIT 'A'
RULES AND REGULATIONS FOR
STANDARD OFFICE LEASE
GENERAL RULES
1. Lessee shall not suffer or permit the obstruction of any Common Areas,
including driveways, walkways and stairways.
2. Lessor reserves the right to refuse access to any persons Lessor in good
faith Judges to be a threat to the safety, reputation, or property of the Office
Building Project and its occupants.
3. Lessee shall not make or permit any noise or odors that annoy or interfere
with other lessee's or persons having business within the Office Building
Project.
4. Lessee shall not keep animals or birds within the Office Building Project,
and shall not bring bicycles, motorcycles or other vehicles into areas not
designated as authorized for same.
5. Lessee shall not make, suffer or permit litter except in appropriate
receptacles for that purpose.
6. Lessee shall not alter any lock or install new or additional locks or bolts.
7. Lessee shall be responsible for the inappropriate use of any toilet rooms,
plumbing or other utilities. No foreign substances of any kind are to be
inserted therein.
8. Lessee shall not deface the walls, partitions or other surfaces of the
Premises or Office Building Project.
9. Lessee shall not suffer or permit any thing in or around the Premises or
Building that causes excessive vibration or floor loading in any part of the
Office Building Project.
10. Furniture, significant freight and equipment shall be moved into or out of
the building only with the Lessor's knowledge and consent, and subject to such
reasonable limitations, techniques and timing, as may be designated by Lessor.
Lessee shall be responsible for any damage to the Office Building Project
arising from any such activity.
11. Lessee shall not employ any service or contractor for services or work to be
performed in the Building, except as approved by Lessor.
12. Lessor reserves the right to close and lock the Building on Saturdays,
Sundays and legal holidays, and on other days between the hours of 5:00 p.m. and
8:00 a.m. of the following day. If Lessee uses the Premises during such period,
Lessee shall be responsible for securely locking any doors it may have opened
for entry.
13. Lessee shall return all keys at the termination of its tenancy and shall be
responsible for the cost of replacing any keys that are lost.
14. No window coverings, shades or awnings shall be installed or used by Lessee.
15. No Lessee, employee or invitee shall go upon the roof of the Building.
16. Lessee shall not suffer or permit smoking or carrying of lighted cigars or
cigarettes in areas reasonably designated by Lessor or by applicable
governmental agencies as non-smoking areas.
17. Lessee shall not use any method of heating or air conditioning other than as
provided by Lessor.
18. Lessee shall not install, maintain or operate any vending machines upon the
Premises without Lessor's written consent.
19. The premises shall not be used for lodging or manufacturing, cooking or food
preparation.
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20. Lessee shall comply with all safety, fire protection and evacuation
regulations established by Lessor or any applicable governmental agency.
21. Lessor reserves the right to waive anyone of these rules or regulations,
and/or as to any par1icular Lessee, and any such waiver shall not constitute a
waiver of any other rule or regulation or any subsequent application thereof to
such Lessee.
22. Lessee assumes all risks from theft or vandalism and agrees to keep its
Premises locked as may be required.
23. Lessor reserves the right to make such other reasonable rules and
regulations as it may from time to time deem necessary for the appropriate
operation and safety of the Office Building Project and its occupants. Lessee
agrees to abide by these and such rules and regulations.
PARKING RULES
1. Parking areas shall be used only for parking by vehicles no longer than full
size, passenger automobiles herein called "Permitted Size Vehicles." Vehicles
other than Permitted Size Vehicles are herein referred to as "Oversized
Vehicles."
2. Lessee shall not permit or allow any vehicles that belong to or are
controlled by Lessee or Lessee's employees, suppliers, shippers, customers, or
invitees to be loaded, unloaded, or parked in areas other than those designated
by Lessor for such activities.
3. Parking stickers or identification devices shall be the property of Lessor
and be returned to Lessor by the holder thereof upon termination of the holder's
parking privileges. Lessee will pay such replacement charge as is reasonably
established by Lessor for the loss of such devices.
4. Lessor reserves the right to refuse the sale of monthly identification
devices to any person or entity that willfully refuses to comply with the
applicable rules, regulations, laws and/or agreements.
5. Lessor reserves the right to relocate all or a part of parking spaces from
floor to floor, within one floor, and/or to reasonably adjacent offsite
location(s), and to reasonably allocate them between compact and standard size
spaces, as long as the same complies with applicable laws, ordinances and
regulations.
6. Users of the parking area will obey all posted signs and park only in the
areas designated for vehicle parking.
7. Unless otherwise instructed, every person using the parking area is required
to park and lock his own vehicle. Lessor will not be responsible for any damage
to vehicles, injury to persons or loss of property, all of which risks are
assumed by the party using the parking area.
8. Validation, if established, will be permissible only by such method or
methods as Lessor and/or its licensee may establish at rates generally
applicable to visitor parking.
9. The maintenance, washing, waxing or cleaning of vehicles in the parking
structure or Common Areas is prohibited.
10. Lessee shall be responsible for seeing that all of its employees, agents and
invitees comply with the applicable parking rules, regulations, laws and
agreements.
11. Lessor reserves the right to modify these rules and/or adopt such other
reasonable and non-discriminatory rules and regulations as it may deem necessary
for the proper operation of the parking area. Should it become necessary to
designate parking stalls based on Lessee's use of the parking area, Lessor
reserves the right (at Lessor's sole discretion) to designate certain parking
stalls for a particular Lessee's usage with all costs incident to such
designation payable by Lessee.
12. Such parking use as is herein provided is intended merely as a license only
and no bailment is intended or shall be created hereby.
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