EXHIBIT 10.19
STANDARD OFFICE LEASE -- GROSS
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
1. Basic Lease Provisions ("Basic Lease Provisions").
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1.1 Parties. This Lease, dated for reference purposes only, November 5,
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1999, made by and between Xxxxxxxxx Amoukhten, d/b/a Workforce America (herein
called "Lessor") and Embedded Support Tools, Inc., doing business under the name
of N/A (herein called "Lessee").
1.2 Premises. Suite Number(s) in a floor plan (Exhibit A) floors,
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consisting of approximately 170 feet, more or less as defined in paragraph 2 and
as shown on Exhibit "A" hereto (the "Premises").
1.3 Building. Commonly described as being located at 00 Xxxxxx Xxxxxx in
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the City of San Xxxx, County of Santa Xxxxx, State of California, as more
particularly described in Exhibit _____ hereto, and as defined in paragraph 2.
1.4 Use. ____________________________________________________________
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________________________________________________________________________,
subject to paragraph 8.
1.5 Term. ________________ November 2, 2000, commencing November 3, 1999
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("Commencement Date") and ending November 8, 2000, as defined in paragraph 3.
1.6 Base Rent. $500 per month, payable on the 1st day of each month under
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paragraph 4.1 _____________________________________________________________
_____________________________________________________________________________.
1.7 Base Rent Increase. On ______________________, the monthly Base Rent
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payable under paragraph 1.8 above shall be adjusted as provided in paragraph 4.3
below.
1.8 Rent Paid Upon Execution. $323.33, November 8 through November 30,
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1999.
1.9 Security Deposit. $500.
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1.10 Lessee's Share of Operating Expense Increase. 0% as defined in
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paragraph 4.2.
2. Premises, Parking and Common Areas.
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2.1 Premises. The Premises are a portion of a building, herein sometimes
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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 leased from Lessor
for the term, at the rental, 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.
2.2 Vehicle Parking. So long as Lessee is not in default and subject to
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the rules and regulations attached hereto, and as established by Lessor from
time to time, Lessee shall be entitled to rent and use two parking spaces in the
Office Building Project at the monthly rate applicable from time to time for
monthly parking as set by Lessor and/or the licensee.
2.2.1 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 a cost
to Lessee, which cost shall be immediately payable upon demand by Lessor.
2.2.2 The monthly parking rate per parking space will be $2 per month
at the commencement of the term of this Lease and is subject to change upon five
(5) days prior written notice to Lessee. Monthly parking fees shall be payable
one month in advance prior to the first day of each calendar month.
2.3 Common Areas -- Definition. The term "Common Areas" is defined as all
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areas and facilities outside the Premises and within the exterior boundary line
of the Office building Project that are provided and designated by the 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 that otherwise prohibited by
this Lease, loading and unloading areas, trash areas, roadways, sidewalks,
walkways, parkways, ramps, driveways, landscaped areas and decorative walls.
2.4 Common Areas -- Rules and Regulations. Leases agrees to abide by and
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conform to the rules and regulations attached hereto as Exhibit B with respect
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to the Office Building Project and Common Areas, and to cause the 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 noncompliance 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
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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 times provide the parking facilities required by
applicable law;
(b) To close temporarily any of the Common Areas for maintenance purposes
so long as reasonable access to the Premises remains available; that such other
land and improvements have a reasonable and functional relationship to the
Office Building Project;
(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 acts and make such other changes in, to or
with respect to the Common Areas and Office Building Project, the Lessor may, in
the exercise of sound business judgment, deem to be appropriate.
3. Term.
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3.1 Term. The term and Commencement Date of this Lease shall be as
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specified in paragraph 1.5 of the Basic Lease provisions.
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3.2 Delay in Possession. Notwithstanding said Commencement Date, if, for
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any reason, Lessor cannot deliver possession of the Premises to Lessee on said
date and subject to paragraph 3.2.2, 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 rendered 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
Date, as the same may be extended under the terms of a Work Letter executed by
Lessor and Lessee, Lessee may, at Lessee's _________ Doors.
4.3.4 Lessee shall continue to pay the rent at the rate previously in
effect until the increase, if any, is determined. Within five (5) days
following the date on which the increase is determined, Lessee shall make such
payment to Lessor as will bring the increased rental current, commencing with
the effective date of such increase through the date of any rental installments
then due. Thereafter the rental shall be paid at the increased rate.
4.3.5 At such time as the amount of any change in rental required by
this Lease is known or determined, Lessor and Lessee shall execute an amendment
to this Lease setting forth such change.
Security Deposit. Lessee shall deposit with Lessor upon execution hereof
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the security deposit set forth in paragraph 1.9 of the Basic Lease provisions as
security for Lessee's faithful performance of Lessee's obligations hereunder.
If Lessee fails to pay rent or other charges due hereunder, otherwise defaults
with respect to any provision of this Lease. lessor may use, apply or retain
all or any portion of said deposit for the payment of any rent or other charge
in default for the payment of any other sum to which Lessor may become obligated
by reason of Lessee's default, or to compensate Lessor for any loss or damage
which Lessor may suffer thereby. If Lessor so uses or applies al or any portion
of said deposit. Leases ___ all within ten (10) days after written demand
therefor deposit cash with Lessor in an amount sufficient to restore said
deposit to the full amount in required of Lessee. If the monthly Base Rent
shall, from time to time, increase during the term of this Lease, Lessee shall,
at the time of such increase, deposit with Lessor additional money as a security
deposit so that the total amount of the security deposit held by Lessor shall at
all times bear the same proportion to the then current Base Rent as the initial
security deposit bears to the initial Base Rent set forth in paragraph 1.6 of
the Basic Lease Provisions, Lessor shall not be required to keep said security
deposit separate from its general accounts. If Lessor performs all of Lessee's
obligations hereunder, said deposit, or so much thereof as has not heretofore
been applied by Lessor, shall be returned, without payment of interest other
increment for its use, to Lessee (or, at Lessor's option, to the last assignee,
if any of Lessee's interest
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hereunder) at the expiration of the term hereof, and after Lessee has vacated
the Premises. No trust relationship is created herein between Lessor and Lessee
with respect to said Security Deposit.
Use
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6.1 Use. The Premises shall be used and occupied only for the purpose set
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forth in paragraph 1.4 of the Basic Lease Provisions or any other use which is
reasonably comparable to that use and for no other purpose.
6.2 Compliance with Law.
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(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, does not violate any covenants or restrictions of record, any
applicable building code, regulation or ordinance 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, cure any, such
violation.
(b) Except as provided in paragraph 6.2(a), Lessee shall, at Lessee's
expense, promptly comply with all applicable statutes, ordinances, rules,
regulations, orders, covenants and restrictions of record, and requirements of
any fire insurance underwriters or rating bureaus, now in affect 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 Areas 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.
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(a) Lessor shall deliver the Premises to Lessee in a clean condition
on the Lease Commencement Date (unless Lessee is already in possession) or
Lessor warrants to Lessee that the plumbing, lighting, air conditioning, and
heating system in the premises shall be in good operating condition. In the
event that it is determined that this warranty has been violated, then it shall
be the obligation of Lessor after receipt of written notice from Lessee setting
forth with specificity the nature of the violation, to promptly, at Lessor's
sole cost, rectify such violation.
(b) Except as otherwise provided in this Lease, Lessee hereby accepts
the Premises and the Office Building Project in their condition existing of the
Lease Commencement Date or the date that Lessee takes possession of the
Premises, whichever is earlier, subject to all applicable zoning, principal,
county
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and state laws, ordinances and regulations governing and regulating the use of
the Premises, and any easements, covenants or acknowledges that it has satisfied
itself by its own independent investigation that the Premises are suitable for
its intended use, and that neither Lessor or 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.
Maintenance Repairs, Alterations and Common Area Services.
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7.1 Lessor's Obligations. Lessor shall keep the Office Building Project,
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including the Premises, interior and exterior walls, roof, and common areas of
the equipment 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 or are above
then Building standards. Except as provided in paragraph 9.5, there shall be no
abatement of rent or liability of Lessee on count 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 nay 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, conditions and repair.
7.2 Lessee's Obligations.
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(a) Notwithstanding Lessor's obligation to keep the Premises in good
condition and repair, Lessee shall be responsible for payment of the upkeep
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) it
serves only Lessee or the Premises, to the extent such cost is attributable to
causes beyond normal wear and tear, Lessee shall be responsible or 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 or that are
above then Building standards, Lessor may, at the option, upon reasonable
notice, elect to have Lessee perform any particular such maintenance or repairs,
the cost of which is otherwise Lessee's responsibility hereunder.
(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 of
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 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 have the air lines,
power panels,
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electrical distribution systems, lighting fixtures, air conditions, window
coverings, wall coverings carpets, wallpaper, ceilings, and plumbing on the
Premises and in good operating condition.
7.3 Alterations and Additions.
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(a) Lessee shall not, without Lessor's prior written consent make any
alterations, improvements, additions, Utility installations or repairs in, on
about the Premises, or the Office Building Project. As used in this paragraph
7.3 the term "Utility Installation" shall mean carpeting, window and all
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 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 proved by Lessor, 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, at any time during the term of this Lease, require that Lessee move any
part or all of the same.
(b) Any alterations, improvements, additions or Utility Installations
in or about the Premises of 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 alteration,
Improvement, addition or Utility Installation, the consent shall be deemed
conditioned upon Lessee acquiring a permit to do so from the applicable
governmental agencies, furnishing a copy thereof to Lessor prior to the
commencement of the work, and compliance by Lessee with all conditions of said
permit in a prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or for use in
the Premises, which claims are or may be secured by any 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 will have
the right to post notices or non-responsibility in or on the Premises or the
Building
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as provided by law. If Lessee shall, in good faith, contend invalidity 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 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 anticipating 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).
Improvements may be made to the premises by Lessee, including but not limited
to, floor coverings, panellings, doors, drapes, pull-ins, moldings, sound
systems, 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 the expiration of the Lease
term, unless Lessor requires their removal pursuant to paragraph 7.3(a).
Provided Lessee is not in default, notwithstanding 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 without material damage to
the Premises or the Building, and other than Utility Installations, shall remain
the property or Lessee and may be removed by Lessee subject to the provisions of
paragraph 7.2.
(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
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additional utility facilities throughout the Office Building Project for the
benefit of Lessor of 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
Premises.
Insurance; Indemnity
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8.1 Liability Insurance -- Losses. Lessee shall, at Lessee's expense,
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obtain and keep in force during the term of this Lease a policy of Comprehensive
General Liability Insurance utilizing an Insurance Services Office standard form
with Broad Form General Liability Endorsement (GL0404), equivalent, in an amount
of not less than $1,000,000 per occurrence of bodily injury and property damage
combined or in
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a greater amount as reasonably determined by Lessor and shall insure Lessee with
Lessor as an additional insured against liability arising out of the use,
occupancy or maintenance of the Premises. Compliance with the above requirement
shall not, however, limit the liability of Lessee hereunder.
8.2 Liability Insurance -- Lessor. Lessor shall obtain and keep in force
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during the term of this Lease a policy of Combined Single Limit Bodily Injury
and Broad Form Property Damage Insurance, plus coverage against such other risks
Lessor deems advisable from time to time, insuring Lessor, and not Lessee,
against liability arising out of the ownership, use, occupancy or maintenance of
the Office Building Project in an amount not less than $__,000,000.00 per
occurrence.
8.3 Property Insurance -- Lessee. Lessee shall, at Lessee's expense,
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obtain and keep in force during the form of this Lease for the benefit of
Lessee, replacement cost fire and extended coverage insurance, with vandalism
and malicious mischief, sprinkler leakage and earthquake sprinkler leakage
endorsements. In an amount sufficient to cover not less than 100% of the full
replacement cost, as the same may exist from time to time, of all of Lessee's
personal property, fixtures, equipment and tenant improvements.
8.4. Property Insurance -- Lessor. Lessor shall obtain and keep in force
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during the term of this Lease a policy or policies of insurance covering loss or
damage to the Office Building Project Improvements, but not Lessee's personal
property, fixtures, equipment or tenant improvements. In the amount of the full
replacement cost thereof, as the same may exist from time to time, utilizing
Insurance Services Office standard form, or equivalent, providing protection
against all perils included within the classification office, extended coverage,
vandalism, malicious mischief, broken glass, and such other perils as Lessor
deems advisable or may be required by a lender having a lien on the Office
Building Project. In addition, Lessor shall obtain and keep in force, during
the term of this Lease, a policy of rental value insurance covering a period of
one year, with loss payable to Lessor, such insurance shall also cover all
Operating Expenses for said period, Lessee will not be named in any such
policies carried by lessor and shall have no right to any proceeds therefrom.
The policies required by these paragraphs 8.2 and 8.4 shall contain such
deductibles as Lessor or the aforesaid lender may determine. In the event that
the Premises shall suffer an insured loss as defined in paragraph 9.1(1) hereof,
the deductible amounts under the applicable insurance policies shall be deemed
an Operating Expense. Lessee shall not do or permit to be done anything which
will invalidate the insurance policies carried by lessor. lessee shall pay the
entirety of any increase in the property insurance premium for the Office
Building Project over what it was immediately prior to the commencement of the
term of this Lease if the increase is specified by Lessor's insurance carrier as
being caused by the nature of Lessee's occupancy or any act of omission of
Lessee.
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8.5 Insurance Policies. Lessee shall deliver to Lessor copies of
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liability insurance policies required under paragraph 8.1 or certificates
evidencing the existence and amounts of such insurance within seven (7) days
after the Commencement Date of this Lease. No such policy shall be cancelable
subject to reduction of coverage or other modification except after thirty (30)
days prior written notice to Lessor. Lessee shall, at least thirty (30) days
prior to the expiration of such policies, furnish Lessor with renewals thereof.
8.6 Waiver of Subrogation. Lessee and Lessor each hereby release and
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relieve the other, and waive their entire right of recovery against the other
direct or consequential loss or damage arising out of or incident to the perils
covered by property insurance carried by such party, whether due the negligence
of Lessor or lessee or their agents, employees, contractors and/or invitees. If
necessary all property insurance policies required under this Lease shall be
endorsed to so provide.
8.7 Indemnity. Lessee shall indemnify and hold harmless Lessor and its
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agents, Lessor's master or ground lessor, partners and lenders, from and against
any and all claims for damage to the person or property of anyone or any entity
arising from Lessee's use of the Office Building Project, or from the conduct or
Lessee's business or from any activity, work or things done, permitted or
suffered by Lessee in or about the Premises or elsewhere and shall further
indemnify and hold harmless Lessor from and against any and all claims, costs
and expenses arising from any breach or default in the performance of any
obligation on Lessee's part to be performed under the terms of this Lease, or
arising from any act or omission of Lessee, or any of Lessee's agents,
contractors, employees, or invitees, and from and against all costs, attorney's
fees, expenses and liabilities incurred by Lessor as the result of any such use,
conduct, activity, work, things done, permitted or suffered, breach, default, or
negligence, and in dealing reasonably therewith, including but not limited to
the defense or pursuit of any claim or any action or proceeding involved
therein; and in case any action or proceeding be brought against, Lessor by
reason of any such matter, Lessee upon notice from Lessor shall 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 so indemnified, Lessee, as a material part of the
consideration to Lessor, hereby assumes all risk of damage to property of Lessor
or injury to persons, in, upon or about he Office Building Project arising from
any cause and Lessee hereby waives all claims in respect hereof against Lessor.
8.8 Exemption of Lessor from Liability. Lessee hereby agrees that Lessor
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shall not be liable for injury to Lessee's business or any loss of income
herefrom or for loss of or damage to the goods, wares, merchandise or other
property of Lessee, Lessee's employees, invitees, customers, or any other person
in or about the Premises or the Office Building Project, no shall Lessor be
liable for injury to the person of Lessee, Lessee's employees, agents or
contractors, whether such damage
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or injury is caused by or results from theft, fire, steam, electricity, gas,
water or rain, or from the breakage, blockage, obstruction or other defects of
pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures, or from any other cause, neither said damage or injury results from
conditions arising upon the Premises or upon other portions of the Office
Building Project, or from other sources or places, or from new construction or
the repair, alteration or improvement of any part of the Office Building
Project, or of the equipment, or appurtenances applicable thereto, and
regardless of whether the cause of such damage or injury or the means of
repairing the same is accessible. Lessor shall not be liable for any damages
arising from any act or neglect of any other lessee, occupant or user of the
Office Building Project, or from the failure of Lessor to enforce the provisions
of any other lease of any other lessee of the Office Building Project.
8.9 No Representation of Adequate Coverage. Lessor makes no
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representation that the limits or forms of coverage or insurance specified in
this paragraph 8 are adequate to cover Lessee's property or obligations under
this Lease.
Damage or Destruction.
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9.1 Definitions.
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(a) "Premises Damage" shall mean if the Premises are damaged or
destroyed to any extent.
(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 at 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 which was caused
by an event required to be covered by the insurance described in paragraph 8.
The fact that an insured Loss has a deductible amount shall not make the loss an
uninsured loss.
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(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 lessees, other than those installed by Lessor at Lessee' expense.
9.2 Premises Damage; Premises Building Partial Damage.
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(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 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 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
condition 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.
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
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and terminate this Lease as of the date of occurrence of such damage by giving
written notice to Lessee of Lessor's election to do so within 30 days after the
date of occurrence of such damage.
(b) Notwithstanding paragraph 9.4(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 exercises such
option during said twenty (20) days 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 by giving written notice to Lessee
of Lessor's election to do so within ten (10) days after 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 are
not usable (including loss of use due to loss of access or essential services),
the rent payable hereunder (including Lessee's Share of Operating Expense
increase) for the period during which such damage, repair or restoration
continues shall be abated, provided (1) the damage was not the result of the
negligence of Lessee, and (2) such abatement shall only be to the extent the
operation and profitability of Lessee's business as operated on 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 Lessor's election to do so at any time prior
to the commencement or
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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 Lessee 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 which
------
relate to termination of leases when leased property is destroyed and agree that
such event shall be governed by the terms of this Lease.
Real Property Taxes.
--------------------
10.1 Payment of Taxes. Lessor shall pay the real property tax as defined
----------------
in paragraph 10.3, applicable to the Office Building Project subject to
reimbursement by Lessee of Lessee's Share of such taxes in accordance with the
provisions of paragraph 4.2, except as otherwise provided in paragraph 10.2.
10.2 Additional Improvements. Lessee shall not be responsible for paying
-----------------------
any increase in real property tax specified in the tax assessor's records and
work sheets as being caused by additional improvements placed upon the Office
Building Project by other lessees or by Lessor for the exclusive enjoyment of
any other lessee. Lessee shall, however, pay to Lessor at the time that
Operating Expenses are payable under paragraph 4.2(c) the entirety of any
increase in real property tax if assessed solely by reason of additional
improvements placed upon the Premises by Lessee or at Lessee's request.
10.3 Definition of "Real Property Tax." As used herein, the term "real
--------------------------------
property tax" shall include any form of real estate tax or assessment, general,
ordinary or extraordinary, and any license fee, commercial rental tax,
improvement bond or bonds, levy or tax (other than inheritance, personal income
or estate taxes) imposed on the Office Building Project or any portion thereof
by any authority having the direct or indirect power to tax, including any city,
county, state or federal government, or any school, agricultural, sanitary,
fire, street, drainage or other improvement thereof, against any legal or
equitable interest of Lessor in the Office Building Project or in any portion
thereof, as against Lessor's right to rent or other income therefrom, and as
against Lessor's business of leasing the Office Building Project. The term
"real property tax" shall also include any tax, fee, or assessment of charge
(i) in substitution of, partially or totally, any tax, fee, levy, assessment or
charge hereinabove included within the definition of "real property
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tax," or (ii) the nature of which was hereinbefore included within the
definition of "real property tax," or (iii) which is imposed for a right not
charged prior to June 1, 1979, or, if previously charged, has been increased
since June 1, 1978, or (iv) which is imposed as a result of a change in
ownership, as defined by applicable local statutes for property tax purposes, of
the Office Building Project or which is added to a tax or charge hereinbefore
included within the definition of real property tax by reason of such change of
ownership, or (v) which is imposed by reason of this transaction, any
modifications or changes hereto, or any transfers hereof.
10.4 Joint Assessment. If the improvements or property, the taxes for
----------------
which are to be paid separately by Lessee under paragraph 10.2 or 10.5 are
separately assessed, Lessee's portion of that tax shall be equitably determined
by Lessor from the respective valuations assigned in the assessor's worksheets
or such other information (which may include the cost of construction) as may be
reasonably available. Lessor's reasonable determination thereof, in good faith,
shall be conclusive.
10.5 Personal Property Taxes.
-----------------------
(a) Lessee shall pay prior to delinquency all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all other personal
property of Lessee contained in the Premises or elsewhere.
(b) If any of Lessee's said personal property shall be assessed with
Lessor's real property, Lessee shall pay to Lessor the taxes attributable to
Lessee within ten (10) days after receipt of a written statement setting forth
the taxes applicable to Lessee's property.
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, water
for reasonable and normal drinking and lavatory use, and replacement light bulbs
and/or fluorescent tubes and ballasts for standard overhead fixtures.
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
supplied to the Premises, Lessee shall pay at Lessor's option, either Lessee's
Share or 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
----------------
during generally accepted business days and hours or such other days or hours as
may
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hereafter be set forth. Utilities and services required at other times shall be
subject to advance request and reimbursement by Lessee to Lessor of the cost
thereof.
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 on the Premises that uses excess water, lighting or
power, or suffer or permit any act that causes extra burden upon utilities or
services, including but not limited to security services, over standard office
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 equipment
and/or separate metering applicable to Lessee's excess usage or loading.
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 delay in utility or service due to riot, strike, labor dispute,
breakdown, accident, repair or other cause beyond Lessor's reasonable control.
Assignment and Subletting.
-------------------------
12.1 Lessee shall not voluntarily or by operation of law assign, transfer,
mortgage, sublet, or otherwise transfer or exchange all or any part of Lessee's
interest in the Lease or in the Premises, without Lessor's prior written
consent, which Lessor shall not unreasonably withhold. Lessor shall respond to
Lessee's request for consent hereunder in a timely manner and any attempted
assignment, transfer, mortgage, or encumbrance shall be void, and shall
constitute a material default and breach of this Lease without the need for
notice within the meaning of this paragraph 12 shall include the transfer or
transfers aggregating: (a) if Lessee is a corporation, more than twenty-five
percent (25%) of the voting stock of such corporation, or (b) if Lessee is a
partnership, more than twenty-five percent (25%) of the profit and loss
participation in such partnership.
12.2 Notwithstanding the provisions of paragraph 12.1 hereof, Lessee may
assign or sublet the Premises, or any portion thereof, without Lessor's consent,
to any corporation which controls, is controlled by or is under common control
with Lessee, or to any corporation resulting in the merger or consolidation with
Lessee, or to any person or entity which acquires all the assets of Lessee as a
going concern of the business and is being conducted on the Premises all of
which are referred to as "Lessee Affiliate"; provided that before such
assignment shall be effective, said Affiliate of Lessee under this Lease and
(b) Lessor shall be given written notice of such assignment and assumption.
12.3 Terms and Conditions Applicable to Assignment and Subletting.
------------------------------------------------------------
(a) No assignment or subletting shall release Lessee of Lessee's
obligations hereunder or alter the primary ability of Lessee to pay the rent or
other
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sums due Lessor hereunder including Lessee's Share of Operating Expense
Increase, and to perform all other obligations to be performed by Lessee
hereunder.
(b) Lessee shall allow no other party other than Lessee pending
approval or disapproval of such assignment.
(c) Neither a delay in the approval or disapproval of such assignment
or subletting, nor the acceptance of rent, shall constitute a waiver or
renouncement of Lessor's claim for the breach of any of the terms or conditions
of this paragraph 12 or this Lease.
(d) If Lessee's obligations under this Lease have been guaranteed by
third parties, then an assignment or sublease, and Lessor's consent to such
shall not be effective unless said guarantors give their written consent to such
sublease and the terms thereof.
(e) The assignment or subletting shall not constitute a consent to
any subsequent assignment or subletting by Lessee in regards to any subsequent
or successive assignment or subletting by the sublessee. However, Lessor may
consent to subsequent sublettings and assignments of a sublease or any
amendments or modifications thereto without notifying Lessee or anyone else
liable on the Lease or sublease and without obtaining prior consent and such
action shall not relieve such persons from liability under this Lease or said
sublease; however, such persons shall not be responsible to the extent any such
amendment or modification enlarges or increases the obligations of the Lessee or
sublessee under this Lease or any sublease.
(f) In the event of any default under this Lease, Lessor may proceed
directly against Lessee, any guarantors or any one else responsible for
performance of this Lease, including the sublessee, without first exhausting
Lessor's remedies against any other person or entity responsible to Lessor, of
any security held by Lessor or Lessee.
(g) Lessor's written consent to any assignment or subletting of the
Premises by Lessee shall not constitute an acknowledgement that no default
exists under this Lease of the obligations to be performed by Lessee nor shall
such consent be deemed a waiver of any then existing default, except as may be
otherwise stated by Lessor at the time.
(h) The discovery of the fact that any financial statement relied
upon by Lessor in giving its consent to an assignment or subletting was
materially false shall, at Lessor's election, render Lessor's said consent null
and void.
12.4 Additional Terms and Conditions Applicable to Subletting. Regardless
--------------------------------------------------------
of Lessor's consent, the following terms and conditions shall apply to any
subletting
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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) Lessee hereby assigns and transfers to Lessor all of Lessee's
interest in all rentals and income arising from any sublease heretofore or
otherwise made by Lessee, and Lessor may collect such rent and income and apply
same toward Lessee's obligations under this Lease; provided, however, that until
a default shall occur in the performance of Lessee's obligations under this
Lease, Lessee may receive, collect and enjoy the rents accruing under such
sublease. Lessor shall not, by reason of this or any other assignment of such
sublease to Lessor nor by reason of the collection of rents from a sublessee, be
deemed liable to the sublessee for any failure of Lessee to perform and comply
with any of Lessee's obligations to such lessee under such sublease. Lessee
hereby irrevocably authorizes and directs any such sublessee, upon receipt of a
written notice from Lessor that a default exists in the performance of Lessee's
obligations under this Lease, to pay to Lessor the rents due and to become due
under the lease. Lessee agrees that such sublessee shall have the right to reply
upon any such statement and request from Lessor, and that such sublessee shall
pay such rents to Lessor without any obligation or right to inquire as to
whether such default exists and notwithstanding any notice from or claim from
Lessor to the contrary. Lessee shall have no right or claim against said
sublessee or Lessor for any such rents so paid by said sublessee to Lessor.
(b) No sublease entered into by Lessee shall be effective unless and
until it has been approved in writing by Lessor. In entering into any sublease,
Lessee shall use only such form of sublessee as is satisfactory to Lessor, and
once approved by Lessor, such sublease shall not be changed or modified without
Lessor's prior written consent. Any sublease shall, by reason of entering into a
sublease under this Lease, be deemed, for the benefit of Lessor, have assumed
and agreed to conform and comply with each and every obligation herein to be
performed by Lessee other than such obligations as contrary to or inconsistent
with provisions contained in a sublease of which Lessor has expressly consented
in writing.
(c) In the event Lessee shall default in the performance of its
obligations under this Lease, Lessor at its option and without any obligation to
do so may require any sublessee to attorn to Lessor, in which event Lessor shall
undertake the obligations of Lessee under such sublease from the time of the
exercise of said option to the termination of such sublease; provided, however,
Lessor shall not be liable for any prepaid rents or security deposit paid by
such sublessee to Lessee or for any other prior defaults of Lessee under such
sublease.
(d) No sublessee shall further assign or sublet all or any part of
the Premises without Lessor's prior written consent.
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(e) With respect to any subletting to which Lessor has consented,
Lessor agrees to deliver a copy of any notice of default by Lessee to the
sublessee. Such sublessee shall have the right to cure a default of Lessee
within three (3) days after service of said notice of default upon such
sublessee, and the sublessee shall have a right of reimbursement and offset from
and against Lessee for any such defaults cured by the sublessee.
12.5 Lessor's Expenses. In the event Lessee shall assign or sublet the
-----------------
Premises or request the consent of Lessor to any assignment or subletting Lessee
shall request the consent of Lessor for any-act Lessee proposes to do then
Lessee shall pay Lessor's reasonable costs and expenses in connection therewith,
including attorneys; architects; engineers' or other consultants' fees.
12.6 Conditions by Consent. Lessor reserves the right to condition any
---------------------
approval to assign or sublet upon Lessor's determination that (a) the proposed
assignee or sublessee shall conduct a business on the Premises of a quality
substantially equal to that of Lessee and consistent with the general character
of the other occupants to the Office Building Project and not in violation of
any exclusives or rights then held by other tenants, and (b) the proposed
assignee or sublessee be at least as financially responsible as Lessee was
expected to be at the time of the execution of this Lease or of such assignment,
whichever is greater.
Default; Remedies.
------------------
13.1 Default. The occurrence of any one or more of the following events
-------
shall constitute a material default of this Lease by Lessee:
(a) The vacation or abandonment of the Premises by Lessee. Vacation
of the Premises shall include the failure to occupy the Premises for a
continuous period of sixty (60) days or more, whether or not the rent is paid.
(b) The breach by Lessee of any of the covenants, conditions or
provisions of paragraphs 7.3(a), (b) or (d) (alterations), 12.1 (assignment or
subletting), 13.1(a) (vacation or abandonment), 13.1(e) (insolvency), 13.1(f)
(false statement), 16(a) (estoppel certificate), 30(b) (subordination) or 41.1
(easements), all of which are hereby deemed to be material, non-curable defaults
without the necessity of any notice by Lessor to Lessee thereof.
(c) The failure by Lessee to make any payment of rent or any other
payment required to be made by Lessee hereunder, as and when due, and if such
failure shall continue for a period of three (3) days after written notice
thereof from Lessor to Lessee. In the event that Lessor serves Lessee with a
Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes
such Notice to Pay Rent or Quit shall also constitute the Notice required by
this subparagraph.
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(d) The failure by Lessee to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Lessee
other than those referenced in subparagraphs (b) and (c), above, where such
failure shall continue for a period of thirty (30) days after written notice
thereof from Lessor to Lessee; provided, however, that if the nature of Lessee's
noncompliance is such that more than thirty (30) days are reasonably required
for its cure, then Lessee shall not be deemed to be in default if Lessee
commenced such cure within said thirty (30) day period and notice required to be
given to Lessee under applicable Unlawful Detainer statutes.
(e) (i) The making by Lessee of any general arrangement or general
assignment for the benefit of creditors; (ii) Lessee becoming a "debtor" as
defined in 11 U.S.C. (S)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. In the event that any provision of this paragraph 13.1(3) is contrary to
any applicable law, such provision shall be of no force or effect.
(f) The discovery by Lessor that any financial statement given to
Lessor by Lessee, or its successor in interest or by any guarantor of Lessee's
rights hereunder, was materially false.
13.2 Remedies. In the event of any material default or breach of this
--------
Lease by Lessee, Lessor may at any time thereafter, with or without notice and
without limiting Lessor in the exercise of any right of remedy which Lessor may
have by reason of such default:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall terminate and
Lessee shall immediately surrender, possession of the Premises to Lessor, in
such event Lessor shall be entitled to recover from Lessee all damages incurred
by Lessor by reason of Lessee's default, including, but not limited to, the cost
of recovering possession of the Premises; expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorneys' fees,
and any real estate commission actually paid; the worth at the time of award by
the court having jurisdiction thereof of the amount by which the unpaid rent for
the balance of the term after the time of such award exceeds the amount of such
rental loss for the same period that Lessee proves could be reasonably avoided;
that portion of the leasing commission paid by Lessor pursuant to paragraph 15
applicable to the unexpired term of this Lease.
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(b) Maintain Lessee's right to possession in which case this Lease
shall continue in effect whether or not Lessee shall have vacated or abandoned
the Premises. In such event Lessor shall be entitled to enforce all of Lessor'
rights and remedies under this Lease, including the right to recover the rent as
it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the state wherein the Premises are
located. Unpaid installments of rent and other unpaid monetary obligations of
Lessee under the terms of this Lease shall bear interest from the date due at
the maximum rate then allowable by law.
13.3 Default by Lessor. Lessor shall not be in default unless Lessor
-----------------
fails to perform obligations required of Lessor within a reasonable time, but in
no event later than thirty (30) days after written notice by Lessee to Lessor
and to the holder of any first mortgage or deed of trust covering the Premises
whose name and address shall have theretofore been furnished to Lessee in
writing, specifying wherein Lessor has failed to perform such obligation;
provided, however, that if the nature of Lessor's obligation is such that more
than thirty (30) days are required for performance then Lessor shall not be in
default if Lessor commences performance within such 30-day period and thereafter
diligently pursues the same to completion.
13.4 Late Charges. Lessee hereby acknowledges that the late payment by
------------
Lessee to Lessor of Base Rent, Lessee's Share of Operating Expense and or other
sums due hereunder will cause Lessor to incur costs not contemplated by this
Lease, the exact amount of which will be extremely difficult to ascertain. Such
costs include, but are not limited to, processing and accounting charges, and
late charges which may be imposed on Lessor by the terms of any mortgage or
trust deed covering the Office Building Project. Accordingly, if any
installment of Base Rent, Operating Expenses and or any other sum due from
Lessee shall not be received by Lessor or Lessor's designee within ten (10) days
after such amount shall be due. Lessee, without any requirement for notice to
Lessor, Lessee shall pay to Lessor a later charge equal to 8% of such overdue
amount. The parties hereby agree that such later charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason of late payment by
Lessee. Acceptance of such later charge by Lessor shall in not event constitute
a waiver of Lessee's default with respect to such overdue amount, nor prevent
Lessor from exercising any of the other rights and remedies granted hereunder.
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 is taken by such
condemnation as would
-21-
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 and Lessee's Share of Operating
Expense 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 condemned
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 claim made under threat of the
exercise of such power shall be the property of Lessor, whether such award shall
be made as compensation for depreciation 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 claim 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 by the
condemning authority. Lessee shall pay any amount in excess of such severance
damages required to complete such repair.
Broker's Fee.
------------
(a) The brokers involved in this transaction are none "listing broker" and
none as "cooperating broker", ____________ real estate broker(s). A
"cooperating Broker" is defined as any broker other than the listing broker
entitled to a share of any commission _________ under this Lease. Upon
execution of this Lease by both parties, Lessor shall pay to said brokers
jointly, or in such separate shares as they may mutually designate in writing, a
fee as set forth in a separate agreement between Lessor and said broker(s), or
in the event there is no separate agreement between Lessor and said broker(s),
the sum of $0 for brokerage services rendered by said broker(s) to Lessor in
this transaction.
(b) Lessor further agrees that (i) if Lessee exercises any Option, as
defined in paragraph 39.1 of this Lease, which is granted to Lessee under this
Lease, or any
-22-
subsequently granted option which is substantially similar to an Option granted
to Lessee under this Lease, or (ii) if Lessee acquires its rights to the
Premises or other premises described in this Lease which are substantially
similar to what Lessee would have acquired had an Option herein granted to
Lessee been exercised, or (iii) if Lessee remains in possession of the Premises
after the expiration of the term of this Lease after Lessee failed to exercise
an Option, or (iv) if said broker(s) are the procuring cause of any other lease
or sale entered into between the parties pertaining to the Premises and/or any
adjacent property in which Lessor has an interest, or (v) if the Base Rent is
increased, whether by agreement to an escalation clause contained herein, then
as to any of said transactions or rent increases. Lessor shall pay said
broker(s) a fee in accordance with the schedule of said broker(s) in effect at
the time of execution of this Lease. Said fee shall be paid at the time such
increased rental is determined.
(c) Lessor agrees to pay said free not only on behalf of Lessor but also on
behalf of any person, corporation, association, or other entity having an
ownership interest in said real property or any part thereof, when such fee is
due hereunder. Any transferee of Lessor's interest in this Lease, or other such
transfer is by agreement or by operation of law, shall be deemed to have assumed
Lessor's obligation under this paragraph 15. Each listing and cooperating
broker shall be a third party beneficiary of the provisions of this paragraph 15
to the extent of their interest in any commission due under this Lease and may
enforce that right directly against Lessor; provided, however, that all brokers
having a right to any part of such total commission shall be a necessary party
to any suit with respect thereto.
(d) Lessee and Lessor each represent and warrant to the other that neither
has had any dealing with any person, firm, broker or finder (other than the
person(s), if any, whose names are set forth in paragraph 15(a), above) in
connection with the negotiation of this Lease and/or the consummation of the
transaction contemplated hereby, and no other broker or other person, firm or
entity is entitled to any commission or finder's fee in connection with said
transaction and Lessee and Lessor do each hereby indemnify and hold the other
harmless from and against any costs, expenses, attorneys' fees or liability for
compensation or charges which may be claimed by any such unnamed broker, finder
or other similar party by reason of dealings or actions of the indemnifying
party.
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
-23-
knowledge, any default 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
requested 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, and
no modification except as may be represented by the requesting party, (ii) there
are no uncured defaults in the requesting party's performance, (iii) if Lessor
is the requesting party, not more than one months' 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
purchaser designated by Lessor such financial statements of Lessee as may be
reasonably required by such lender or purchaser. Such statements will include
the past three (3) years' financial statements of Lessee. All such financial
statements shall be received by Lessor and such lender of purchaser in
confidence and shall be used only for the purposes herein set forth.
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, and except as expressly provided in
paragraph 15. In the event of any transfer of such title 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 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 or shall, subject as aforesaid, be binding on
Lessor's successors and assigns, only during their respective periods of
ownership.
The invalidity of any provision of this Lease as determined by a court of
competent jurisdiction shall in no way affect the validity of other provisions
hereof.
Interest on Past-due Obligations. Except as expressly herein provided, any
--------------------------------
amount due to Lessor not paid when due shall bear interest at the minimum 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
nor on any amounts upon which late charges are paid by Lessee.
Time of Essence. Time is of the essence with respect to the obligations to be
---------------
performed under this Lease.
-24-
Additional Rent. All monetary obligations of Lessee to Lessor under the terms
---------------
of this Lease, including but not limited to Lessee's Share of Operating Expense
increase and any other expenses payable by Lessee hereunder shall be deemed to
be rent.
Incorporation of Prior Agreements; Amendments. This Lease contains all
---------------------------------------------
agreements of the parties with respect to any matter mentioned herein. Prior or
contemporaneous agreement or understanding pertaining to any such matter shall
be effective. This Lease may be modified in writing signed by the parties in
interest at the time of the modification. Except as otherwise stated in this
Lease, Lessee hereby acknowledges that neither real estate broker listed in
paragraph 15 hereof nor any cooperating broker on this transaction nor the
Lessor or any employee or agent of any other persons has made any oral or
written warranties or representations to Lessee relative to the condition or use
by Lessee of the Premises or Office Building Project and Lessee acknowledges
that Lessee assumes all responsibility regarding the Occupational Safety Health
Act, the legal and adaptability of the Premises and the compliance thereof with
all applicable laws and regulations in effect during the term of this Lease.
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 name 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 all purposes except that
upon Lessee's taking possession of the Premises, the Premises shall constitute
Lessee's address for notice purposes and of all notices required or permitted to
be given to Lessor hereunder shall be concurrently transmitted to such party or
parties at such addresses and may from time to time hereafter designate by
notice to Lessee.
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 the preceding breach at the time of
acceptance of such rent.
Recording. Either Lessor or Lessee shall, upon request of the other, execute,
---------
acknowledge and deliver to the other a "short form" memorandum of Lessee for
recording purposes.
-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. The new
occupancy shall be a tenancy from month to month upon all the provisions of this
Lease pertaining to the obligations of Lessee, except that rent payable shall be
two hundred percent (200%) of the rent payable immediately preceding the
termination date of this Lease, and all Options, if granted under the terms of
this Lease shall be deemed terminated and be of no further effect during said
month to month tenancy.
Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive
-------------------
but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
Binding Effect; Choice of Law. Subject to any provisions hereof restricting
-----------------------------
assignment or subletting by Lessee and subject to the provisions of paragraph
17, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of State where
the Office Building Project is located and any litigation concerning this Lease
between the parties hereto shall be initiated in the City in which the Office
Building Project is located.
Subordination.
-------------
(a) This Lease, and any Option or right or 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 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 continue and perform all of the provisions of
this Lease unless this Lease is otherwise terminated pursuant to its terms.
If any mortgagee, trustee or the Lessor shall elect to have this Lease and any
Options granted hereby prior to the line of its mortgage, deed of trust or
ground lease, and shall give written notice thereof to Lessee, this Lease and
such Option shall be deemed prior to such mortgage, deed of trust or ground
lease, whether 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, a subordination, or to make this Lease or any Option granted
hereunder 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 as Lessee's attorney-in-fact..
Lessee does hereby make,
-26-
constitute and irrevocably appoint Lessor as Lessee's attorney-in-fact and
Lessee' name, place and stead, to execute such documents in accordance with this
paragraph 30(b).
Attorneys' Fees.
---------------
If either party or the broker(s) named herein bring an action to enforce
the terms hereof or declare rights hereunder, the prevailing party in such
action, trial or appeal thereon, shall be entitled to his reasonable attorneys'
fees to be paid by the losing party as fixed by the court in the action or a
separate suit, and whether or not such action is pursued to decision or
judgment. The provisions of this paragraph shall inure to the benefit of the
broker named herein who seeks to enforce a right hereunder.
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.
Lessor shall be entitled to reasonable attorneys' fees and all other costs
and expenses incurred in the preparation and service of notice of action and
consultations in connection therewith, whether or not a legal transaction is
subsequently commenced in connection with such default.
Lessor's Access.
---------------
Lessor and Lessor's agents shall have the right to enter the Premises at
reasonable times for the purpose of inspecting the same, performing 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 to the Office Building Project 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 as long as there is no material adverse effect to Lessee's use of the
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 120
days of the term hereof place on or about the Premises any ordinary "For Lease"
signs.
All activities of Lessor pursuant to this paragraph shall be without
abatement of rent, nor shall Lessor have any liability 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 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
-27-
the Premises or an eviction. Lessee waives any charges for damages or injuries
or interference with Lessee's property or business in connection therewith.
1. Auctions. Lessee shall not conduct, nor permit to be conducted, either
--------
voluntarily or involuntarily, any 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.
4. 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.
5. Merger. The voluntary or other surrender of this Lease, or a mutual
------
cancellation thereof, or a termination by Lessor, shall not work as 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.
6. 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.
7. Guarantor. In the event that there is a guarantor of this Lease, said
---------
guarantor shall have the same obligations as Lessee under this Lease.
8. Quiet Possession. Upon Lessee paying the rent for the Premises and
----------------
observing and performing all of the covenants, conditions and provisions on
Lessee's part to be observed and performed hereunder, Lessee shall have quiet
possession of the Premises for the entire term hereof subject to all of the
provisions of this Lease. The individuals executing this Lease on behalf of
Lessor represent and warrant to Lessee that they are fully authorized and
legally capable of executing this Lease on behalf of Lessor and that such
execution is binding upon all parties holding an ownership interest in the
Office Building Project.
39. Options.
-------
39.1 Definition. As used in this paragraph the word "Option" has the
----------
following meaning: (1) the right or option to extend the term of this Lease or
to renew this Lease or to extend or renew any lease that Lessee has on other
property of Lessor; (2) the option or right of first refusal to lease the
Premises or the right of first offer to lease the Premises or the right of first
refusal to lease other space within the Office Building Project or other
property of Lessor or the right of first offer to lease other space within the
Office Building Project or other property of
-28-
Lessor; (3) the right or option to purchase the Premises or the Office Building
Project, or the right of first refusal to purchase the Premises or the Office
Building Project or the right of first offer to purchase the Premises or the
Office Building Project, or the right or option to purchase other property of
Lessor, or the right of first refusal to purchase other property of Lessor or
the right of first offer to purchase other property of Lessor.
39.2 Options Personal. Each Option granted to Lessee in this Lease is
----------------
personal to the original Lessee and may be exercised only by the original Lessee
while occupying the Premises who does so without the intent of thereafter
assigning this Lease or subletting the Premises or any portion thereof, and may
not be exercised or be assigned, voluntarily or involuntarily, by or to any
person or entity other than Lessee; provided, however, that the Option may be
exercised by or assigned to any Lessee Affiliate as defined in paragraph 12.2 of
this Lease. The Options, if any, herein granted to Lessee are not assignable
separate and apart from this Lease, nor may any Option be separated from this
Lease in any manner, either by reservation or otherwise.
39.3 Multiple Options. In the event that Lessee has any multiple options
----------------
to extend or renew this Lease a later option cannot be exercised unless a prior
option to extend or renew this Lease has been so exercised.
39.4 Effect of Default on Options.
----------------------------
(a) Lessee shall have no right to exercise an Option, notwithstanding any
provision in the grant of Option to the contrary (i) during the time commencing
from the date Lessor gives to Lessee a notice of default pursuant to paragraph
13.1(c) or 13.1(d) and continuing until the noncompliance outlined in said
notice of default is cured, or (ii) during the period of time commencing on the
day after a monetary obligation to Lessor is due from Lessee and unpaid (without
any necessity for notice thereof to Lessee) and continuing until the obligation
is paid, or (iii) in the event that Lessor has given to Lessee three or more
notices of default under paragraph 13.1(c), or paragraph 13.1(d), whether or not
the defaults are cured, during the 12 month period of time immediately prior to
the time that Lessee attempts to exercise the subject Option, (iv) if Lessee has
committed any non-curable breach, including without limitation those described
in paragraph 13.1(b), or is otherwise in default of any of the terms, covenants
or conditions 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 any Option
because of the provisions of paragraph 39.4(a).
(c) All rights of Lessee under the provisions of an Option shall terminate
and be of no further force or effect, notwithstanding Lessee's due and timely
exercise of the Option, if, after such exercise and during the term of this
Lease,
-29-
(i) Lessee fails to pay to Lessor a monetary obligation of Lessee for a period
of thirty (30) days after such obligation becomes due (without any necessity of
Lessor to give notice thereof to Lessee), or if Lessee fails to commence to cure
a default specified in paragraph 13.1(d) within thirty (30) days after the date
that Lessor gives notice to Lessee such default and/or Lessee fails thereafter
to diligently prosecute said cure to completion, or (iii) Lessor gives to Lessee
three or more notices of default under paragraph 13.1(c), or paragraph 13.1(d),
whether or not the defaults are cured, or (iv) if Lessee has committed any non-
curable breach, including without limitation those described in paragraph
13.1(b), or is otherwise in default of any of the terms, covenants and
conditions of this Lease.
Security Measures - Lessor's Reservations.
-----------------------------------------
40.1 Lessee hereby acknowledges that Lessor shall have no obligation
whatsoever to provide guard service or other security measures for the benefit
of the Premises or the Office Building Project. Lessee assumes all
responsibility for the protection of Lessee, its agents, and invitees and the
property of Lessee and of Lessee's agents and invitees from acts of third
parties. Nothing herein contained shall prevent Lessor, at Lessor's sole
discretion, from providing security protection for the Office Building Project
or any part thereof, in which event the cost thereof shall be included within a
definition of Operating Expenses, as set forth in paragraph 4.2(b).
40.2 Lessor shall have the following rights:
(a) To change the name, address or title of the Office Building Project or
building in which the Premises are located upon not less than 90 days prior
written notice;
(b) To, at Lessee's expense, provide and install Building standard graphics
on the door of the Premises and such portions of the Common Areas as Lessor
shall reasonably deem appropriate;
(c) To permit any lessee the exclusive right to conduct any business as
long as such exclusive does not conflict with any rights expressly described
herein;
(d) To place such signs, notices or displays as Lessor reasonably deems
necessary or advisable upon the roof, exterior of the buildings or Office
Building Project or on pole signs in the Common Areas;
40.3 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;
-30-
(b) Suffer or permit anyone, except in emergency, to go upon the roof of
the Building.
Easements.
---------
41.1 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 reasonably
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.
41.2 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.
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 payment. If it shall be
adjudged that there was no legal obligation on the part of said party to pay
such sum or any part thereof, said party shall be entitled to recover such sum
or so much thereof as it was not legally required to pay under the provisions of
this Lease.
Authority. If Lessee is a corporation, trust, or general or limited
---------
partnership, Lessee, and each individual executing this Lease on behalf of such,
does hereby 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.
Conflict. Any conflict between the printed provisions, Exhibits or Addenda
--------
of this Lease and the typewritten or handwritten provisions, if any, shall be
controlled by the typewritten or handwritten provisions.
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.
Modification. 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 financial or refinancing of the Office Building
Project.
-31-
Multiple Parties. If more than one person or entity is named as either
----------------
Lessor or Lessee herein, except as otherwise expressly provided herein,
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.
This Lease is supplemented by that certain Work Letter of even date
executed by Lessor and Lessee, attached hereto as Exhibit C, ________________
incorporated herein by this reference.
Attachments. Attached hereto are the following documents which constitute
-----------
a part of this Lease:
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM
AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
-32-
IF THIS LEASE HAS BEEN FILLED IN IT HAS BEEN PREPARED FOR SUBMISSION TO
YOUR ATTORNEY FOR HIS APPROVAL. NO REPRESENTATION OR RECOMMENDATION IS MADE BY
THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION OR BY THE REAL ESTATE BROKER OR
ITS AGENTS OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX
CONSEQUENCES OF THIS LEASE OR THE TRANSACTION RELATING THERETO. THE PARTIES
SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN LEGAL COUNSEL AS TO THE LEGAL AND
TAX CONSEQUENCES OF THIS LEASE.
LESSOR LESSEE
------------------------------ ESTC
------------------------------ By /s/ Xxxxx Xxxxxx
Its President
---------------------------------- ---------------------------
---------------------------------- By /s/ Xxxx Xxxxxx
Its Chief Financial Officer
Executed at Executed at
---------------------- ----------------------
on on
------------------------------- -------------------------------
Address Address
-------------------------- --------------------------
-33-
RULES AND REGULATIONS FOR
STANDARD OFFICE LEASE
Dated: November 5, 1999
By and Between Lessee and Lessor
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 lessees 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 limitation, 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.
-34-
11. Lessee shall not employ any service or contractor for services or work to
be performed in the Building except as approved by Lender.
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 7 P.M.
and 8 A.M. of the following day. If Lessee uses the Premises during such
periods, 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 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.
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 any one of these rules or regulations,
and/or as to any particular 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.
-35-
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, rules 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.
-36-
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.
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.
Initials:
--------------
EXHIBIT B
-37-
Construction of Improvements
----------------------------
Lessor shall construct and complete improvements to the Premises in
accordance with the plans and specifications prepared by _______________________
________________________________________________________, dated _______________
consisting of sheets ______________________, (the "Improvements").
Preparation of Plans and Specifications
---------------------------------------
Within ____ days after the date of this Lease, Lessor shall prepare at its
cost and deliver to Lessee for its approval _____ copies of preliminary plans
and specifications for the completion of the improvements, which plans and
specifications shall itemize the work to be done by each party, including a cost
estimate of any work required of Lessor in excess of Lessor's Standard
Improvement. Lessee shall approve said preliminary plans and specifications and
preliminary cost estimate or specify with particularity its objection thereto
within _____ days following receipt thereof. Failure to so approve or
disapprove within said period of time shall constitute approval thereof. If
Lessee shall reject said preliminary plans and specifications either partially
or totally, and they cannot in good faith be modified within ten (10) days after
such rejection to be acceptable to Lessor and Lessee, except that Lessee shall
be refunded any security deposit or prepaid rent. The plans and specifications,
when approved by Lessee, shall supersede any prior agreement concerning the
improvements.
Construction
------------
If Lessor's cost of constructing the Improvements to the Premises exceeds
the cost of Lessor's Standard Improvements, Lessee shall pay to Lessor cash
before the commencement of such construction a sum equal to such excess.
If the final plans and specifications are approved by Lessor and Lessee,
and Lessee pays Lessor for such excess, then Lessor shall, at its sole cost and
expense, construct the improvements in accordance with said approved plans and
specifications and all applicable rules, regulations, laws or finances.
Completion.
----------
16.1 Lessor shall obtain a building permit to construct the improvements
as soon as possible.
16.2 Lessor shall complete the construction of the Improvements as soon as
reasonably possible after the obtaining of necessary building permits.
16.3 The term "Completion," as used in this Work Letter, is hereby defined
to mean the date the building department of the municipality having jurisdiction
of the Premises shall have made a final inspection of the Improvements and
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authorized a final release of restrictions on the use of public utilities
connection therewith and the same are in a broom-clean condition.
16.4 Lessor shall use its best efforts to achieve Completion of the
improvements on or before the Commencement Date set forth in paragraph 1.5 the
Basic Lease Provisions or within one hundred eighty (180) days after Lessor
obtains the building permit from the applicable building department, whichever
is later.
16.5 In the event that the Improvements or any portion thereof have not
reached Completion by the Commencement Date, this Lease shall not be valid, but
rather Lessor shall complete the same as soon thereafter as is possible and
Lessor shall not be liable to Lessee for damages in any respect whatsoever.
16.6 If Lessor shall be delayed at any time in the progress of the
construction of the Improvements or any portion thereof by extra work changes in
construction ordered by Lessee, or by strikes, lockouts, fire, delay in
transportation, unavoidable casualties, rain or weather conditions, governmental
procedures or delay or by any other causes beyond Lessor's control, then, the
Commencement Date established in paragraph 1.5 of the Lessee shall be amended by
the period of such delay.
Term
----
Upon Completion of the Improvements as defined in paragraph 16.3 above,
Lessor and Lessee shall execute an amendment to the Lease selling with the date
of Tender of Possession as defined in paragraph 3.2.1 of the Lease or of actual
taking possession, whichever first occurs, as the Commencement Date of this
Lease.
Work Done by Lessee
-------------------
Any work done by Lessee shall be done only with Lessor's prior written
consent and in conformity with a valid building permit and all applicable ____,
regulations, laws and ordinances, and was done in a good and workmanlike manner
with good and sufficient materials. All work shall be done only with union
labor and only by contractors approved by Lessor, it being understood that all
plumbing, mechanical, electrical wiring and ceiling work was to be done only by
contractors designated by lessor.
Taking of Possession of Premises.
--------------------------------
Lessor shall notify Lessee of the Estimated completion date at least ten
(10) days before said date. Lessee shall thereafter have the right to enter the
Premises to commence construction of any Improvements Lessee is to construct and
to equip and fixturize the Premises, as long as such entry does not interfere
with Lessor's work. Lessee shall take possession of the Premises upon the
tender thereof as provided in paragraph 3.2.1 of the Lease to which this Work
Letter is attached. Any
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entry by Lessee of the Premises under this paragraph shall be under all of the
terms and provisions the Lease to which this Work Letter is attached .
Accordance of Premises
----------------------
Lessee shall notify Lessor in writing of any items that Lessee deems
incomplete or incorrect. In order for the Premises to be acceptable to Lessee
within ten (10) days following Tender of Possession as set in paragraph 3.2.1 of
the Lease to which the Work Letter is attached. Lessee shall be deemed to have
accepted the Premises and approved construction if Lessee does not deliver such
a _____ to Lessor within said number of days.
__________ or shall be discontinued, then the index most nearly the same as
the C.P.I. shall be sued to make such calculations. In the event that Lessor
and Lessee cannot agree on such alternative index, then the matter shall be
submitted for decision to the American Arbitration Association in the ____ in
which the Premises are located. in accordance with the then rules of said
association and the decision of the arbitrators shall be binding on the parties,
notwithstanding one party failing to appear after due notice of the proceeding.
The cost of said Arbitrators shall be paid equally to Lessor and Lessee.
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