EXHIBIT 10.20
LEASE AGREEMENT
between
EL CAMINO OFFICE INVESTMENTS
for
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dated: September 19, ▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ INVESTMENTS LEASE
1. PARTIES. This Lease dated, for reference purposes only, September 19, 1995,
by and between EL CAMINO OFFICE INVESTMENTS ("Landlord") and ENACT ("Tenant"),
who agree as follows:
2. PREMISES. Landlord leases to Tenant, and Tenant leases from Landlord the
office space located in ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, described as ▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, outlined in Exhibit "A" ("Premises). Premises have
an agreed area of 4,352.
3. TERM. The term of this Lease shall be for three (3) years, commencement
date to be October 15, 1995, but no later than November 1, 1995 and ending on
October 31, 1998.
4. RENT AND TENANT IMPROVEMENT COST REIMBURSEMENT.
4.1. Tenant shall pay to Landlord as rent for the Premises, without demand,
deduction, or off-set, the sum of Seven Thousand Six Hundred Sixteen Dollars
($7,616.00) on or before the first day of each and every month of the term of
this Lease, the first monthly payment to be made concurrently with the execution
hereof. If the commencement date is not the first day of a month or if the Lease
termination date is not the last day of a month, the rent payable hereunder
shall be prorated, based upon a thirty day month, at the current rate for the
fractional month during which this Lease commences and/or terminates. Any rent
payable for a partial month directly following the commencement date shall be
payable on the first day of the first full calendar month of the term. Rent
shall be paid to El Camino Office Investments, at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇.
4.2. In place of an operating expense pass-through, the base rent provided for
in 4.1. above shall increase three percent (3%) per year on the anniversary date
of the commencement of the term of the Lease stated in 3. above.
4.3 Late Charges. Tenant hereby acknowledges that late payment by Tenant to
Landlord of rent or other sums due hereunder will cause Landlord 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 upon Landlord by
terms of any mortgage or trust deed covering the Premises. Accordingly, if any
installment of rent or of a sum due from Tenant shall not be received by
Landlord or Landlord's designees by 12:00 noon on the fifth (5th) day of each
month of the term hereof, then Tenant shall pay to Landlord a late charge equal
to five percent (5%) of such overdue amount. The parties hereby agree that such
late charges represent a fair and reasonable estimate of the cost that Landlord
will incur by reason of the late payment by Tenant. Acceptance of such late
charges by the Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder.
5. SECURITY DEPOSIT. On execution of this Lease, Tenant shall deposit with
Landlord $7,616.00 as a security deposit for the performance by Tenant of the
provisions of this Lease. If Tenant is in default, Landlord can use the security
deposit, or any portion of it,
to cure the default or to compensate Landlord for all damage sustained by
Landlord resulting from Tenant's default. Tenant shall immediately on demand pay
to Landlord a sum equal to the portion of the security deposit expended or
applied by Landlord as provided in this paragraph so as to maintain the security
deposit in the sum initially deposited with Landlord. If Tenant is not in
default at the expiration or termination of this Lease, Landlord shall, no later
than fourteen (14) days after lease expiration or termination, return to Tenant
(or at Landlord's option, to the last assignee of Tenant's interest hereunder),
the balance of the security deposit. Landlord shall not be required to keep this
security deposit separate from its general funds, and Tenant shall not be
entitled to interest on such deposit.
6. POSSESSION.
6.1 If Landlord, for any reason cannot deliver possession of the Premises to
Tenant at the commencement of the term hereof, this Lease shall not be void or
voidable nor shall Landlord be liable to Tenant for any loss or damage resulting
therefrom, nor shall the expiration date of the above term be extended, but, in
that event, all rent shall be abated during the period between the commencement
of said term and the time when Landlord delivers possession.
6.2 In the event that Landlord shall permit Tenant to occupy the Premises
prior to the commencement date of the term, such occupancy shall be subject to
all of the provisions of this Lease and said early possession shall not advance
the termination date herein above provided. Rent shall be prorated and prepaid
for early occupancy at the current rate.
7. USE.
7.1 Use. The Premises shall be used and occupied by Tenant for general office
purposes and for no other purpose without the prior written consent of the
Landlord.
7.2 Uses Prohibited:
a. Tenant shall not do or permit anything to be done in or about the Premises
nor bring or keep anything therein which will increase the existing rate or
affect any fire or other insurance upon the building or any of its contents, or
cause a cancellation of any insurance policy covering said building or any part
thereof or any of its contents, nor shall Tenant sell or permit to be kept used
or sold in or about said Premises any articles or substances, inflammable or
otherwise, which may be prohibited by a standard form policy of fire insurance.
b. Tenant shall not do or permit anything to be done in or about the Premises
which will in any way obstruct or interfere with the rights of other tenants of
the building or injure or annoy them or use or allow the Premises to be used for
any unlawful or objectionable purpose.
c. Tenant shall not use the Premises or permit anything to be done in or about
the Premises which will in any way conflict with any law now in force or which
may hereafter be enacted. Tenant shall at its cost promptly comply with all laws
now in force or which may hereafter be in force and with the requirements of any
board of fire underwriters or other similar body relating to Tenant's
improvements or acts.
8. ALTERATIONS AND ADDITIONS. Tenant shall not make or allow any alterations,
additions or improvements of or to the Premises without Landlord's prior written
consent. Any such alterations, additions or improvements, including, but not
limited to, wallcovering, paneling and built-in cabinet work, but excepting
movable furniture and trade fixtures, shall become a part of the realty, shall
belong to the Landlord and shall be surrendered with the Premises at expiration
or termination of the Lease. If Landlord consents to any such alterations,
additions or improvements by Tenant, they shall be made by Tenant at Tenant's
cost, and any contractor or person selected by Tenant to perform the work shall
first be approved of, in writing, by Landlord. Upon expiration, or sooner
termination of the term hereof, Tenant shall, upon written demand by Landlord
promptly remove any alterations, additions or improvements made by Tenant and
designated by Landlord to be removed. Such removal and repair of any damage to
the premises caused by such removal shall be at Tenant's cost.
9. LIENS. Tenant shall keep the Premises and the property in which the
Premises are situated free from any liens arising out of any work performed,
materials furnished or obligations incurred by Tenant. Landlord may require
Tenant to provide Landlord, at Tenant's cost, a lien and completion bond in an
amount equal to one and one-half (1-1/2) times the estimated cost of any
improvements, additions, or alterations by Tenant, to insure Landlord against
liability for mechanic's and materialmen's liens and to insure completion for
the work,
10. REPAIRS AND MAINTENANCE. By taking possession of the Premises, Tenant shall
be deemed to have accepted the Premises as being in good sanitary order,
condition and repair. Tenant shall at Tenant's cost, keep the premises and every
part thereof in good condition and repair except for damages from causes beyond
the control of Tenant and ordinary wear and tear. Tenant shall upon the
expiration or sooner termination of this Lease surrender the Premises to the
Landlord in good condition, ordinary wear and tear and damage from causes beyond
the reasonable control of the Tenant excepted. Unless specifically provided in
an addendum to this Lease, Landlord shall have no obligation to alter, remodel,
improve, repair, decorate or paint the Premises or any part thereof and the
parties hereto affirm that Landlord has made no representations to Tenant
respecting the condition of the premises or the building except as specifically
herein set forth. Notwithstanding the above provisions, Landlord shall repair
and maintain the structural portions of the building, including the standard
plumbing, air conditioning, heating and electrical systems furnished by
Landlord, unless such maintenance and repairs are caused in part or in whole by
the act, neglect, fault or omission of any duty by the Tenant, its agents,
employees or invitees, in which case Tenant shall pay to Landlord the reasonable
cost of such maintenance and repairs. Tenant shall give Landlord written notice
of any required repairs or maintenance. Landlord shall not be liable for any
failure to repair or to perform any maintenance unless such failure shall
persist for an unreasonable time after written notice. Any repairs or
maintenance to supplemental cooling equipment required for Tenant's special
needs are the responsibility of Tenant. Except as specifically herein set forth,
there shall be no abatement of rent and no liability of Landlord by reason of
any injury to or interference with Tenant's business arising from the making of
any repairs, alterations or improvements to any portion of the building or the
Premises or to fixtures, appurtenances and equipment therein. Tenant waives the
right to make repairs at Landlord's expense under any law, statute or ordinance
now or hereafter in effect.
11. ASSIGNMENTS AND SUBLETTING. Tenant shall not, voluntarily or by operation
of law, assign, transfer, or encumber its interest under this Lease or in the
Premises nor
sublease all or any part of the premises or allow any other person or entity
(except Tenant's employees, agents and invitees) to occupy or use all or any
part of the premises without the prior written consent of Landlord. Landlord's
consent shall not be unreasonably withheld. Any such consent shall not release
Tenant from liability hereunder, and a consent to one assignment, subletting,
occupation or use shall not be deemed a consent to any subsequent assignment,
subletting, occupation or use. Any such purported assignment, subletting, or
permission to occupy or use without such consent from Landlord shall be void and
shall, at the option of Landlord, constitute a default under this Lease. Tenant
immediately and irrevocably assigns to Landlord, as security for Tenant's
obligations under this Lease, all rent from any subletting of all or a part of
the Premises as permitted by this Lease, and Landlord, as assignee and as
attorney-in-fact for Tenant, or a receiver for Tenant appointed on Landlord's
application, may collect such rent and apply it toward Tenant's obligations
under this Lease; except that, until the occurrence of an act of default by
Tenant, Tenant shall have the right to collect such rent.
12. HOLD HARMLESS. Except as to claims based on the sole negligence or willful
misconduct of Landlord, its agents or employees, Tenant shall hold Landlord
harmless from any claims arising from Tenant's use of the premises or from any
activity permitted by Tenant in or about the Premises, and any claims arising
from any breach or default in Tenant's performance of any obligation under the
terms of this Lease. If any action or proceeding is brought by reason of any
such claim in which Landlord is named as a party, Tenant shall defend Landlord
therein at Tenant's expense by counsel reasonably satisfactory to Landlord.
Landlord and its agents shall not be liable for any damage to property entrusted
to employees of the building, nor for loss or damage to any property by theft or
otherwise, nor from any injury to or damage to persons or property resulting
from any cause whatsoever, unless caused by or due to the sole negligence or
willful misconduct of Landlord, its agents, or employees. Landlord shall not be
liable for any latent defect in the Premises or in the building of which they
are a part. Tenant shall give prompt notice to Landlord in case of fire or
accidents in the Premises or in the building or of alleged defects in the
building, fixtures or equipment.
13. INSURANCE.
13.1 Coverage. Tenant shall assume the risk of damage to any fixtures, goods,
inventory, merchandise, equipment, furniture and leasehold improvements, and
Landlord shall not be liable for injury to Tenant' B business or any loss of
income therefrom relative to such damage. Tenant shall, at all times during the
term of this Lease, and at its own cost, procure and continue in force the
following insurance coverage.
a. Comprehensive public liability insurance, insuring Landlord and Tenant
against any liability arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto.
13.2 Insurance Policies. The limits of said insurance policies shall not,
however, limit the liability of the Tenant hereunder. Tenant may carry said
insurance under a blanket policy, providing, however, said insurance by Tenant
shall name Landlord as an additional insured. If Tenant shall fail to procure
and maintain said insurance, Landlord may, but shall not be required to, procure
and maintain same, but at the expense of Tenant. Insurance required hereunder
shall be in companies that rate B+ or better in "Best's Insurance Guide. Tenant
shall deliver to Landlord prior to occupancy of the premises copies of policies
of insurance required herein or certificates evidencing the existence and
amounts of such insurance with loss payable clauses, satisfactory to Landlord.
No policy shall be cancelable or subject to reduction of coverage except after
fifteen (15) days prior written notice to Landlord. The minimum acceptable
amount of comprehensive liability insurance is $1,000,000 against claims in any
occurrence, and property damage insurance in an amount of not less than $100,000
per occurrence, or combined single limit of $1,000,000 comprehensive liability
and property damage insurance.
13.3 Waiver of Subrogation. As long as their respective insurers so permit,
Landlord and Tenant each hereby waive any and all rights of recovery against the
other for any loss or damage occasioned to such waiving party or its property of
others under its control to the extent that such loss or damage is insured
against under any fire or extended coverage insurance policy which either may
have in force at the time of such loss or damage. Each party shall obtain any
special endorsement, if required by their insurer, to evidence compliance with
the aforementioned waiver.
14. SERVICE AND UTILITIES.
14.1 Landlord's Obligations. Landlord agrees to furnish to the Premises during
reasonable hours of generally recognized business days to be determined by
Landlord, and subject to the Rules and Regulations of the building, electricity
for normal lighting and fractional horsepower office machines, heat and air
conditioning required in Landlord's judgment for the comfortable use and
occupancy of the Premises, janitorial, window washing and elevator service.
Landlord shall also maintain and keep lighted the common stairs, galleries,
entries and toilet rooms in the building. Landlord shall not be liable for and
Tenant shall not be entitled to any reduction of rental by reason of Landlord's
failure to furnish any of the foregoing when such failure is caused by accident,
breakage, repairs, strikes, lockouts or other labor disturbances or labor
disputes of any character, or by any other cause, similar or dissimilar, beyond
the reasonable control of Landlord.
14.2 Tenant's Obligation. Tenant shall pay for, prior to delinquency, all
telephone and all other materials and services, not expressly required to be
paid by Landlord, which may be furnished to or used in, on or about the Premises
during the term of this Lease. Tenant will not, without the prior written
consent of Landlord and subject to any conditions which Landlord may impose, use
any apparatus or device in the Premises which will in any way increase the
amount of electricity or water usually furnished for use of the Premises as
general office space. If Tenant shall require water or electric current in
excess of that usually furnished or supplied for use of the Premises as general
office space, Tenant shall first procure the consent of Landlord. Wherever heat
generating machines or equipment are used in the Premises which affect the
temperature otherwise maintained by the air conditioning system, Landlord
reserves the right to install supplementary air conditioning units in the
Premises and the cost thereof, including the cost of installation, operation and
maintenance thereof, shall be paid by Tenant to Landlord upon demand by
Landlord. Landlord shall not be liable for Landlord's failure to furnish any of
the foregoing when such failure is caused by any cause beyond the reasonable
control of Landlord. Landlord shall not be liable under any circumstances for
loss of or injury to property, however occurring, in connection with failure to
furnish any of the foregoing.
15. PROPERTY TAXES. Tenant shall pay before delinquency, all taxes levied or
assessed and which become payable during the term hereof upon all Tenant's
leasehold improvements, equipment, furniture, fixtures and personal property
located in the Premises, except that which has been paid for by Landlord and is
the standard of that building. Should the California Constitution be changed in
a way that results in a higher or lower tax on the Premises than the annual
increases now a matter of law, any such increase or decrease shall be passed
through to tenant on a prorated basis as an item separate from any CPI
adjustments. Tenant shall pay to Landlord its share of such taxes, if any,
within thirty days after delivery to Tenant by Landlord of a statement in
writing setting forth the amount of such taxes.
16. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with the
rules and regulations attached as Exhibit "B" to this Lease, as well as such
rules and regulations that Landlord shall from time to time promulgate. Landlord
reserves the right from time to time to make all reasonable modifications to
those rules which shall be binding to Tenant upon delivery of a copy of them to
Tenant. Landlord shall not be responsible to Tenant for the nonperformance of
any of said rules by any other tenant.
17. HOLDING OVER. If Tenant remains in possession without Landlord's consent,
after termination of the Lease, by lapse of time or otherwise, Tenant shall pay
Landlord for each day of such retention one-fifteenth (1/15th) of the amount of
the monthly rental for the last month prior to such termination and Tenant shall
also pay all costs, expenses and damages sustained by Landlord by reason of such
retention, including, without limitation, claims made by a succeeding tenant
resulting from Tenant's failure to surrender the Premises.
18. ENTRY BY LANDLORD. Landlord reserves the right to enter the premises at any
time to inspect the Premises, to provide any service for which Landlord is
obligated hereunder, to submit the Premises to prospective purchasers or
tenants, to post notices of nonresponsibility, and to alter, improve, maintain
or repair the Premises or any portion of the building of which the Premises are
a part that Landlord deems necessary or desirable, all without abatement of
rent. Landlord may erect scaffolding and other necessary structures where
reasonably required by the character of the work to be performed, but shall not
block entrance to the Premises and not interfere with Tenant's business, except
as reasonably required for the particular activity by Landlord. Landlord shall
not be liable in any manner for any inconvenience, disturbance, loss of
business, nuisance, interference with quiet enjoyment, or other damage arising
out of Landlord's entry on the Premises as provided in this paragraph, except
damage, if any, resulting from the sole negligence or willful misconduct of
Landlord or its authorized representative. Landlord shall retain a key with
which to unlock all doors into, within and about the Premises, excluding
Tenant's vaults, safes and files. In an emergency, Landlord shall have the right
to use any means which Landlord deems reasonably necessary to obtain entry to
the Premises, without liability to Tenant, except for any failure to exercise
due care for Tenant's property. Any such entry to the Premises by Landlord shall
not be construed or deemed to be forcible or unlawful entry into or a detainer
of the Premises or an eviction of Tenant from the Premises or any portion
thereof.
19. RECONSTRUCTION. If the Premises or the building of which the Premises are a
part are damaged by fire or other peril covered by extended coverage insurance,
Landlord agrees to make repairs and restorations to the extent and in the manner
possible at a cost not exceeding the proceeds of the insurance received by
Landlord. If the cost of repair and
restoration exceeds the amount of proceeds received from insurance, Landlord may
elect to terminate this Lease by giving notice to Tenant within twenty (20) days
after determining that the cost will exceed such proceeds. If Landlord proceeds
with repair and restoration, this Lease shall remain in full force and effect,
except that Tenant shall be entitled to a proportionate reduction of rent while
such repairs are being made. The rent reduction shall be based upon the extent
to which repair and restoration activity materially interferes with Tenant's
business at the Premises, provided, however, that if the damage was occasioned
by the fault or neglect of Tenant, its agents or employees, there shall not be
an abatement of rent.
20. DEFAULT; REMEDIES.
20.1 Default. The occurrence of any of the following shall constitute a
default by Tenant:
a. Failure by Tenant to pay the rent or other monies when due, where such
failure continues for three (3) business days after written notice by Landlord
to Tenant.
b. Abandonment of the Premises by Tenant.
c. Failure by Tenant to perform any other provision of this Lease where such
failure to perform is not cured within thirty (30) days after notice has been
given to Tenant; provided, however, that if the nature of the default is such
that the same cannot reasonably be cured within said thirty (30) day period,
Tenant shall not be deemed to be in default if Tenant shall within such period
commence such cure and thereafter diligently prosecute the same to completion.
d. The making by Tenant of any general assignment or general arrangement for
the benefit of creditors; the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt or of a petition for reorganization or arrangement
under any law relating to bankruptcy (unless, in the case of a petition filed
against Tenant, same is dismissed within sixty (60) days; the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where possession
is not restored to Tenant within thirty (30) days; or the attachment, execution
or other judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where such seizure is not
discharged within thirty (30) days.
20.2 Remedies. In the event of any such default Landlord may:
Maintain this Lease in full force and effect and recover the rent and other
monetary charges as they become due, without terminating Tenant's right to
possession irrespective of whether Tenant shall have abandoned the Premises. In
the event Landlord elects not to terminate the Lease, Landlord shall have the
right to attempt to re-let the Premises at such rent and upon such conditions
and for such a term, and to do all acts necessary to maintain or preserve the
Premises as Landlord deems reasonable and necessary without being deemed to have
elected to terminate the Lease, including removal of all persons and property
from the Premises. Such property may be removed and stored in a public warehouse
or elsewhere at the cost of and for the account of Tenant. In the event any such
reletting occurs, this Lease shall terminate automatically upon the new tenant
taking possession of the Premises. Notwithstanding that Landlord fails to elect
to terminate the Lease initially, Landlord at any
time during the term of this Lease may elect to terminate this Lease by virtue
of such previous default of Tenant.
Terminate Tenant's right to possession by any lawful means, in which case this
Lease shall terminate and Tenant shall immediately surrender possession of the
Premises to Landlord. In such event Landlord shall be entitled to recover from
Tenant all damages incurred by Landlord by reason of Tenant's default, including
without limitation thereto, the following: (1) the worth at the time of award of
any unpaid rent which would have been earned at the time of such termination;
plus (2) the worth at the time of award of the amount by which the unpaid rent
which would have been earned after termination until the time of award exceeds
the amount of such rental loss that is proved could have been reasonably
avoided; plus (3) the worth at the time of award of the amount by which unpaid
rent for the balance of the term after the time of award exceeds the amount of
such rental loss that is proved could be reasonably avoided; plus (4) any other
amount necessary to compensate Landlord for all the detriment proximately caused
by Tenant's failure to perform his obligations under this Lease or which in the
ordinary course of events would be likely to result therefrom; plus (5) at
Landlord's election, such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time by applicable law. Upon any such
re-entry Landlord shall have the right to make any reasonable repairs,
alterations or modifications to the Premises, which Landlord in its sole
discretion deems reasonable and necessary. As used in (1) above, the "worth at
the time of award" is computed by allowing interest at the rate of ten percent
(10%) per annum from the date of default. As used in (2) and (3) above, the
"worth at the time of award'' is computed by discounting such amount at the
discount rate of the U.S. Federal Reserve Bank at the time of award plus one
percent (1%).
Remedies of Landlord contained in this Lease shall be construed and held to be
cumulative, and Landlord shall have the right to pursue any one or all of such
remedies or any other remedy or relief which may be provided by law. No waiver
of any default of Tenant hereunder shall be implied from any acceptance by
Landlord of any rent or other payments due hereunder or any omission by Landlord
to take any action on account of such default if such default persists or is
repeated, and no express waiver shall affect defaults other than as specified in
said waiver. The consent or approval of Landlord to or of any act by Tenant
requiring Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent or approval to or of any subsequent similar acts
by Tenant.
21. EMINENT DOMAIN. If more than twenty-five percent (25%) of the Premises is
taken or appropriated by any public or quasi-public authority under powers of
eminent domain, either party hereto shall have the right at its option, to
terminate this Lease. If less than twenty-five percent (25%) of the Premises is
taken (or neither party elects to terminate as above, provided if more than
twenty-five percent (25%) is taken), the Lease shall continue, but the rental
thereafter to be paid shall be equitably reduced. If any part of the building of
which the Premises are a part is so taken or appropriated, whether or not any
part of the Premises is involved, Landlord shall be entitled to the entire award
and compensation for the taking which is paid or made by the public or quasi-
public agency, and Tenant shall have no claim against said award.
22. STATEMENT TO LENDER. Tenant shall at any time and from time to time, upon
not less than ten (10) days prior written notice from Landlord, execute,
acknowledge, and
deliver to Landlord a statement in writing, (a) certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modifications and certifying that this Lease as so modified, is in full
force and effect), and the date to which the rental and other charges are paid
in advance, if any, and (b) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of the Landlord hereunder, or
specifying such defaults if any are claimed. Any such statement may be relied
upon by any prospective purchaser or encumbrancer of all or any portion of the
real property of which the Premises are a part.
23. PARKING. Tenant shall be assigned one covered parking space, Reserved #2.
The other covered parking spaces are assigned to the other tenants in the
building. Landlord and Tenant agree not to hassle, tow, write notes to or in any
way bother anyone who improperly parks in these assigned spaces. All other
spaces shall not be assigned and Tenant shall have use of the open spaces in
common with other tenants, visitors and occupants of the building subject to the
rules and regulations established by Landlord. Said parking shall be at no
expense to the Tenant unless a tax, fee or levy is imposed directly or
indirectly by a Federal, State or local agency or jurisdiction for parking. If
such tax, fee or levy is imposed tenant agrees to pay its portion of said fee as
reasonably determined by the Landlord.
24. AUTHORITY OF PARTIES.
24.1 Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation,in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the by-laws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
24.2 Limited Partnerships. Landlord herein is a limited partnership. It is
understood and agreed that any claims by Tenant on Landlord shall be limited to
the assets of the limited partnership. And furthermore, Tenant expressly waives
any and all rights to proceed against the individual partners or the officers,
directors or shareholders of any corporate partner, except to the extent of
their interest in said limited partnership.
25. GENERAL, PROVISIONS.
25.1 Exhibits. Exhibits attached hereto, and addendums initialed by the
parties, are deemed to constitute a part hereof.
25.2 Waiver. The waiver by Landlord of any provision of this Lease shall not
be deemed to be a waiver of any subsequent breach of the same or any other
provisions of this Lease herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any provision of this Lease, other than the failure of the Tenant
to pay the particular rental so accepted, regardless of Landlord's knowledge of
such preceding breach at the time of the acceptance of such rent.
25.3 Notices. All notices and demands which may or are required to be given by
either party to the other hereunder shall be in writing. All notices and demands
by the Landlord to
the Tenant shall be sufficient if delivered in person or sent by first class
mail, postage prepaid, addressed to the Tenant at the Premises or to such other
place as Tenant may from time to time designate in a written notice to the
Landlord. All written notices and demands by the Tenant to the Landlord shall be
sufficient if delivered in person or sent by first class mail, postage prepaid,
addressed to the Landlord at the office of the building or to such other person
or place as the Landlord may from time to time designate in a notice to the
Tenant. Any such notice is effective at the time of delivery or 48 hours after
mailing.
25.4 Rentable Area. Rentable square footage, as herein used, is the actual
square footage of the office suite plus a load factor for galleries, restrooms,
hallways and other common areas. The stated rentable area will not be used as a
basis for either party making any claim against the other.
25.5 Joint and Several Obligations. If there be more than one Tenant, the
obligations hereunder imposed upon tenants shall be joint and several.
25.6 Captions. The captions of the paragraphs of this Lease are not a part of
this Lease and shall have no effect upon the construction or interpretation of
any part hereof.
25.7 Time. Time is of the essence hereof.
25.8 Successors and Assigns. The provisions of this Lease, subject to the
provisions as to assignment, apply to and bind the successors and assigns of the
parties hereto.
25.9 Recording. Neither Landlord nor Tenant shall record this Lease or a short
form memorandum hereof without the prior written consent of the other party.
25.10 Scope and Amendments. This Lease is and shall be considered to be the
only agreement between the parties hereto. All negotiations and oral agreements
acceptable to both parties are included herein. No amendment or other
modification of this Lease shall be effective unless in a writing signed by
Landlord and by Tenant.
25.11 Legal Fees. In the event of any action brought by either party against
the other under this Lease, the prevailing party shall be entitled to recover
all costs including the fees of its attorneys as the court may adjudge
reasonable.
25.12 Sale. In the event of any sale of the building, Landlord shall be
released of any liability under this Lease, and the purchaser of the Premises
shall be deemed to have assumed and agreed to carry out all of the obligations
of the Landlord under this Lease.
25.13 Lender Requirements. Upon request of the Landlord, Tenant will, in
writing, subordinate its rights hereunder to the lien of any mortgagee, or deed
of trust to any bank, insurance company or other lending institution, now or
hereafter in force against the land and building of which the Premises are a
part, and to all advances made or hereafter to be made upon the security
thereof. If any proceedings are brought for foreclosure, or in the event of the
exercise of the power of sale under any mortgage or deed of trust made by the
Landlord covering the Premises, the Tenant shall recognize such purchaser as the
Landlord under this Lease.
25.14 Name. Tenant shall not use the name of the development in which the
Premises are situated for any purpose other than as an address of the business
to be conducted by the Tenant in the Premises, unless written authorization is
obtained from Landlord.
25.15 Severability. Any provision of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other
provision hereof.
25.16 Applicable Law. This Lease shall be governed by the laws of the State of
California.
25.17 Toxics. Landlord and Tenant acknowledge that they have been advised that
numerous federal, state, and/or local laws, ordinances and regulations ("law")
affect the existence and removal, storage, disposal, leakage of contamination by
materials designated as hazardous or toxic ("Toxics"). Many materials, some
utilized in everyday business activities and property maintenance, are
designated as hazardous or toxic. Some of the Laws require that Toxics be
removed or cleaned up without regard to whether the party required to pay for
the "clean up" caused the contamination, owned the property at the time the
contamination occurred or even knew about the contamination. Some items, such as
asbestos or PCB's, which were legal when installed, now are classified as
Toxics, and are subject to removal requirements. Civil lawsuits for damages
resulting from Toxics may be filed by third parties in certain circumstances.
Tenant and Landlord agree to hold the other harmless from any responsibility for
any Toxics which are brought on to the Premises or the project by themselves,
their agents, employees or contractors.
26. ELECTRICAL, COMMUNICATIONS AND ALARM WIRING.
26.1 Tenant shall contact the Landlord prior to installing or relocating any
electrical, telephone, network, LAN, intercom, doorbell, or alarm wiring system
at the Atrium Business Center.
26.2 All electrical wiring shall be installed by a licensed contractor in
expanded metal tubing in accordance with the most current electrical code.
26.3 All communication cabling shall be installed by a licensed contractor and
shall be plenum rated and shall not be installed as to "lay'' on ceiling tile or
t-bar grid systems. All electrical and communication cabling shall be installed
in the chases in the hallway and connected to the connection plates in each
office per the existing conduit.
A certificate of compliance shall be provided by contractor to Landlord at time
of completion.
26.4 Landlord shall not be financially responsible for any repair or
replacement of any communication cables, telephone lines, telephone feeders, or
trunk lines beyond the M.P.O. (minimum point of entry) established by Pacific
▇▇▇▇. If one or more of these lines serve several tenants, the cost of
installation and repair shall be divided among tenants currently being served by
said cable.
26.5 Not all existing telephone rooms/punchdown boards are permanent. Tenant
and his contractor must verify location of termination points with the Landlord
prior to installation.
26.6 No audible alarm systems will be permitted. Landlord will not assume any
financial responsibility for any alarms attributable to its employees,
contractors, including janitors, guards, or service personnel.
26.7 Any work requiring access to adjoining tenants spaces shall be
prearranged so that Landlord can obtain permission for the
intrusion/interruption of the space. Tenant shall reasonably cooperate in
arranging access to contractors for adjoining tenant when requested by Landlord.
26.8 Upon request of Landlord, Tenant shall remove all communication cable
which they have installed in the Premises upon expiration of this Lease and
repair all damage caused by said removal.
27. AMERICANS WITH DISABILITIES ACT. Landlord believes the Premises complies
with the Americans With Disabilities Act" (ADA), but no independent
investigation has been made to ensure compliance with the "Americans With
Disabilities Act" (ADA). This Act may require a variety of changes to a
facility, including potential removal of barriers to access by disabled persons
and provision of auxiliary aids and services for hearing, vision or speech
impaired persons, some of which would be the Landlord's responsibility and some
of which be the Tenant's responsibility. Landlord urges all parties to obtain
independent legal and technical advice with respect to the physical and
environmental conditions and ADA compliance of the Property. The Parties agree
that it will rely solely on their own investigations and/or that of a licensed
professional specializing in these areas, and not on the investigation,
assurances or opinion of Landlord or Broker, if any.
28. BROKERS. Tenant warrants that it has had no dealing with any real estate
broker or agent in connection with the negotiation of this Lease excepting only,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇, and it knows of no other real estate broker or
agent who is entitled to a commission in connection with this Lease. Commissions
shall be paid to Broker(s) by Landlord on the following schedule: 6%, 5%, 4%,
3%, 2%. No commissions shall be paid on Tenant Improvement Amortizations, CPI
Increases or any other Rent Adjustment covered in section 4.2 herein.
29. TENANT IMPROVEMENTS. Landlord is willing to improve the Premises at a later
date as per work orders and plans to be mutually agreed upon. The cost for said
improvements shall be paid by Tenant in one lump sum, or amortized with an 8 1/2
interest rate over the duration of the lease.
30. OPTION TO EXTEND TERM. Provided Tenant is not in default hereunder at the
expiration of the initial term herein provided for and has fully and faithfully
performed all of Tenant's obligations under the Lease during said term, then
Tenant shall have the option to extend the term for three (3) additional years,
commencing immediately upon expiration of the initial term. Tenant shall give
Landlord written notice of exercise of the option at least 180 days before the
expiration of the initial term. Lease payments for said extension period shall
be at a rate to be negotiated between Tenant and Landlord at the time the lease
extension notice is given. If a lease modification extending the term and
including a new lease rate is not agreed to in writing within 30 days of the
extension notice being given, this option to extend shall become void.
31. EXPANSION SPACE. Landlord will use its best efforts to provide expansion
space for Tenant when and if Tenant needs additional space. Tenant should inform
Landlord of its desire to commit to additional space as far in advance as
possible. Lease terms for expansion space will be negotiated in good faith by
both parties at the time the new lease is needed and no preconceived terms have
been agreed to at this time.
32. TO LEASE. Landlord and Tenant agree to amend the foregoing as follows.
Page 2. 6.1. Add the following to the end of the paragraph: "Notwithstanding
the above statement, Tenant shall have the right to terminate this Lease, upon
written notice, on November 15, 1995 if possession cannot be delivered. Landlord
shall complete tenant improvements in a reasonable time, Landlord's failure to
complete tenant improvements shall not be grounds to delay occupancy. Tenant
shall cooperate with Landlord in order for the improvements to be done in a
timely manner.
Page 2. 7.1. Line 2 insert "engineering" between "purposes" and "and".
Page 3. 8. Add the following to the end of the paragraph: "If requested by
Tenant, at the time of installation Landlord shall stipulate which improvements
are to be removed at the time the Lease expires."
Page 5. 12. Line 1 Delete the following: "based on the" replace it with the
following: "to the extent caused by the"
Page 5. 12. Lines 18 & 19 Delete the following: "Landlord shall not be liable
for any latent defect in the Premises or in the building of which they are a
part."
Page 5. 13.1. Line 1 Add the following after "Coverage." : "Except to the
extent caused by Landlord's sole negligence or willful misconduct,"
Page 6. 14.1. Line 3 Insert "reasonably" between "be" and "determined"
Page 6. 14.1. Line 6 Insert "reasonable" between Landlord's and "judgement"
Page 8. 18. Insert the following after the first sentence: "Landlord will
attempt to notify Tenant prior to entry into the Premises during business hours
and shall not show the Premises to perspective tenants until the last six months
of the term."
Page 13. 25.12. Add the following to the end of the last sentence of the
paragraph: "even though those obligations predated the purchase."
The parties hereto have executed this Lease on the dates specified immediately
adjacent to their respective signatures.
LANDLORD: EL CAMINO OFFICE INVESTMENTS
By: THRUST IV, INC., General Partner
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
By:_______________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, President
September 19, 1995
Date:_____________________________________
TENANT: ENACT
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:_______________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President/C.E.O.
September 19, 1995
Date:_____________________________________
Tax I.D. #077 0326 649
--------------
EXHIBIT B
Rules and Regulations
---------------------
1. Keys are issued, in a reasonable number, by Landlord to Tenant at no
charge.
2. Access cards, used to open the electronic lock of the front entry door of a
particular building after normal business hours, are assigned to individual
people pursuant to a list submitted by Tenant to Landlord. A deposit for
security access card is not currently being charged upon issuance, however this
policy is subject to change at Landlords sole discretion. When a card holder is
no longer entitled to a card (left employment, etc.) Tenant shall notify
Landlord of a new holder, or if the card has been taken or lost. By so notifying
Landlord, a particular card code can be removed from the authorized list, so
that it no longer will activate the lock.
3. No sign or notice shall be displayed by Tenant outside of its office space
without written consent of Landlord. If approval is not given, Landlord shall
have the right to remove such sign or notice without notice to and at expense of
the Tenant. All signs on access doors to the Premises shall be approved by
Landlord. The original standard company sign on the main door to the Premises
will be installed at Landlord's expense. Tenant may, at its expense, install a
different sign, after written design approval by Landlord. Design criteria
should be obtained from Landlord in advance.
Tenant shall not place anything within the Premises which may appear unsightly
from outside of the Premises.
Tenant shall not install any curtains, blinds, shades, or screens on any
windows or doors of the Premises without Landlord's consent.
4. Sidewalks, halls, passages, exits, entrances, elevators, and stairways
shall not be obstructed by any of the tenants, or used by them for any purpose
other than for ingress or egress from their respected offices.
5. Tenant shall not alter any lock or install any new or additional locks or
bolts on any doors or windows without the written consent of Landlord.
6. The toilet rooms, urinals, wash bowls and other apparatus shall not be used
for any purpose other than for which they were installed.
7. Tenant shall not overload the floor of the office complex. Tenant shall not
▇▇▇▇, drive nails, screw or drill into the partitions, woodwork, or plaster or
in any way deface the Premises, except for hanging of small items such as
pictures with nail type of hangers, without Landlord's approval. If Tenant hangs
any other furniture, equipment, whiteboards etc. Tenant shall be responsible for
the removal and repair of all damages to the Premises.
8. No unusually large or heavy equipment shall be brought into the complex
without prior notice to Landlord and all moving of the same into or out of the
office complex shall be done at such time and such a manner as Landlord shall
designate.
All damage done to the office complex by moving or maintaining any such
equipment shall be repaired at the expense of Tenant.
9. Tenant shall not use the office complex in a manner offensive or
objectionable to the Landlord or other occupants by reason of noise, odors,
and/or vibrations, or interfere in any way with other tenants or those having
business herein, nor shall any animals or birds be brought in or about the
office complex.
10. No lodging, washing clothes, cooking, excluding use of coffee makers and
microwave ovens, shall be done or permitted by any Tenant on the Premises.
11. Tenant shall not use or keep on the Premises any foul or noxious gas,
kerosene, gasoline or inflammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied by Landlord.
12. Landlord will direct electricians as to where and how telephone wires are
to be installed. No changing of wires will be allowed without the consent of the
Landlord. The location of the telephones, call boxes and other office equipment
affixed to the office complex shall be subject to the approval of Landlord.
13. No aerial satellite dish or other item shall be erected on the roof or
exterior walls of the complex, or on the grounds, without in each instance, the
written consent of the Landlord. Any such item so installed without such written
consent shall be subject to removal without notice at any time.
14. No loud speakers, televisions, radios or other devices shall be used in a
manner so as to be heard or seen outside of the Premises without prior written
consent of the Landlord.
15. On Saturdays, Sundays, legal holidays, and on other days between the hours
of 7:00 P.M. and 7:00 A.M. the following day, access to the office complex, or
to the Premises may be refused unless the person seeking is known to the person
or employee of the office complex in charge or is properly identified. The
Landlord shall in no case be liable for damages for any error with regard to the
admission to or exclusion from the office complex of any person.
16. Any person whose presence on the Premises may in the judgment of the
Landlord be prejudicial to the safety, character, reputation and interest of the
office complex or of its tenants may be denied access to the office complex or
may be ejected therefrom.
17. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of the
Landlord.
18. Tenant shall not disturb, solicit, or canvass any occupant of the office
complex and shall cooperate to prevent the same.
19. Landlord shall control and operate the public portions of the office
complex, in such manner as it deems best for the benefit of the tenants
generally.
20. All windows and entrance doors in the office complex shall be left locked
when the Premises are not in use, and all doors opening to public corridors
shall be kept closed except for normal ingress and egress from the office
complex.
21. In case of invasions, mob riot, public excitement, or other emergency, the
Landlord reserves the right to prevent access to the office complex during the
continuance of the same by closing of the doors or otherwise, for the safety of
the tenants and protection of property in the office complex. Landlord will also
direct tenants as necessary in an emergency and will not assume any liability
for damages suffered by tenants as the result of such directions.