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EXHIBIT 10.2
AMENDMENT TO LEASE
This Amendment to Lease ("Amendment") is entered into this 19th day of
April, 1999, by and between NORTH COAST BUSINESS PARK, a California Limited
Partnership ("Landlord") and INTERACTIVE TELESIS, INC., a Delaware corporation
("Tenant") with reference to the following facts:
RECITALS
A. on or about February 13, 1995, Landlord and Tenant entered into that
certain Lease Agreement ("Original Lease"), pursuant to which Tenant leased from
Landlord certain premises commonly known as Building 4 ("Building 4") ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, consisting of
approximately 888 rentable square feet. A true copy of said original Lease is
attached hereto as "Exhibit "A" and made a part hereof by this reference.
B. Thereafter, Tenant and Landlord have entered into the following lease
amendments under which Tenant has expanded its space, relocated its Premises and
extended the term of its Lease as set forth below:
Date Effect of Lease Amendment
---- -------------------------
August 20, 1995 Expanded space by adding
Suite 117 in Building 4 (899
rentable s/f) and extended the
term of lease.
July 30, 1996 Relocated from Suites 114 and
117 to Suites 113, 116, 118 in
Building 4 (the "Existing
Premises") consisting of
approximately 3,141 rentable
s/f and extended the term of
lease.
September 15, 1998 Expanded space by adding
Suites 119 and 121 in Building
4 totalling 1,034 rentable s/f.
C. Tenant now desires to lease from Landlord certain additional space
commonly known as ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, consisting of approximately 888 rentable square feet (the "Expansion
Premises") as is further described in Exhibit "B" attached hereto and made a
part hereof by this reference.
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NOW THEREFORE, the parties hereto agree that the Original Lease and the
existing Lease Amendments described above are hereby further amended as follows:
AGREEMENT
1. Leased Space. In addition to leasing the Existing Premises, Tenant
agrees to lease the Expansion Promises consisting of approximately 888 rentable
square feet for a total leased space of 5,063 rentable square feet (the "Leased
Space").
2. Term of Lease. The term of Lease for the Expansion Premises shall be
for a period of 28 months commence May 1, 1999 and shall terminate August 31,
2001.
3. Base Rent. The Base Rent Schedule shall be as follows:
05/01/99 to 04/30/00 - $1,465.00 per month ($1.65 s/f)
05/01/00 to 04/30/01 - $1,510.00 per month ($1.70 s/f)
05/01/01 to 08/31/01 - $1,555.00 per month ($1.75 s/f)
Utilities and janitorial expenses are not included in the above Base Rent
and are the sole responsibility of Tenant as set forth in paragraphs 4 & 5
below.
4. Utility Expense. Tenant to transfer SDG&E meter into Tenant's name and
pay all utilities related to the Expansion Premises directly to SDG&E. Landlord
shall not be responsible for the payment of utilities.
5. Janitorial Expenses. Tenant shall be solely responsible to provide and
pay for its own janitorial services. Landlord shall not be responsible for
janitorial service.
6. Security Deposit. Tenant's current security deposit of $6,265.00 shall
be increased to $7,730.00. Concurrently with the execution of this Amendment of
Lease, Tenant agrees to deposit with Landlord the additional security deposit in
the amount of $1,465.00 for a total security deposit held by Landlord of
$7,730.00.
7. Tenant Improvements. Landlord install new building standard carpet and
base cove consistent with Tenant's existing carpet. In addition, Landlord shall
provide a passage way and stairs between the Expansion Premises and Tenant's
existing Premises. Tenant shall pay for any up-grade in materials used over
Landlord's building standard materials, or any construction change orders
requested by Tenant that increases the scope of tenant improvement work outlined
above.
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8. Option to Extend Term of Lease.
8.1 Option to Extend. Landlord conditionally grants to Tenant the
option to extend the term of this Lease for one (1) period of three (3) years at
the end of the original term (the "Renewal Term").
8.2 Exercise of Option. To exercise such option, Tenant must deliver
written notice of the exercise thereof to Landlord no earlier than 360 days and
not later than 180 days before the expiration of the initial Term of this Lease.
8.3 Base Rent During Renewal Term. The monthly Base Rent during the
Renewal Term shall be as follows:
09/31/01 to 08/31/02 - $1,600.00 per month ($1.80 s/f)
09/01/02 to 08/31/03 - $1,645.00 per month ($1.85 s/f)
09/01/03 to 08/31/04 - $1,687.00 per month ($1.90 s/f)
The above rent schedule does not include utilities or janitorial service.
Tenant shall continue to be responsible for all utilities and janitorial
service.
8.4 Termination Of Option to Extend. The Option to Extend as set
forth in paragraph 8.1 is personal to Tenant and shall be exercisable by Tenant
(and not an assignee, sublessee, or other transferee of Tenant's interest in
this Lease) only if Tenant occupies the entire Premises. The Option to Extend
granted herein shall terminate upon (i) the default by Tenant of any term,,
covenant or condition of the Lease regardless if such default is cured, or (ii)
upon Tenant's failure to deliver such written notice as outlined in paragraph
8.2 above.
9. Guarantor. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Guarantor of the Lease and each Amendment
pursuant to that Guarantee of Lease dated February 13, 1995, hereby consents to
this Amendment to Lease and acknowledges and agrees that the Guarantee of Lease
shall apply to this Amendment to Lease.
10. CONTINGENCY: Delivering possession of the Expansion Promises to Tenant
is subject to Landlord's successful negotiation of an early lease termination
agreement with the existing tenant. The Expansion Promises must be under the
exclusive control of Landlord and available to lease.
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11. Continuing Effect of Lease. All other terms and conditions of the
original Lease shall remain in full force and effect, and shall apply to all
space identified in each Amendment and the Expansion Premises except as
expressly modified by this Amendment. In the event any term or condition of the
original Lease is inconsistent with, or contrary to, any term or condition of
this Amendment, this Amendment shall prevail.
LANDLORD: NORTH COAST BUSINESS PARK,
a California Limited Partnership
Date: 4/30/99 By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ for ▇▇▇▇▇, Ltd.,
General Partner of North Coast
Business Park Managers, a California
Limited Partnership
TENANT: INTERACTIVE TELESIS,, INC., a Delaware
Corporation
Date: 4/20/99 By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇▇, Controller
GUARANTOR: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an Individual
Date: 4/20/99 By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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EXHIBIT "B"
Existing Premises - ▇▇▇▇▇▇ ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
[Diagram of Premises]
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AMENDMENT TO LEASE
This Amendment to Lease ("Amendment") is entered into this 15th day of
September, 1998, by and between NORTH COAST BUSINESS PARK, a California Limited
Partnership ("Landlord") and INTERACTIVE TELESIS, INC., a Delaware Corporation
("Tenant") with reference to the following facts:
RECITALS
A. on or about February 13, 1995, Landlord and Tenant entered into that
certain Lease Agreement ("Original Lease"), pursuant to which Tenant leased from
Landlord certain premises commonly known as Building 4 ("Building 4") ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, consisting of
approximately 888 rentable square feet. A true copy of said original Lease is
attached hereto as Exhibit "A" and made a part hereof by this reference.
B. Thereafter, Tenant and Landlord have entered into the following lease
amendments under which Tenant has expanded its space, relocated its Premises and
extended the term of its Lease as set forth below:
Date Effect of Lease Amendment
---- -------------------------
August 20, 1995 Expanded space by adding Suite 117 in Building 4
(899 rentable s/f) and extended the term of
lease.
July 30, 1996 Relocated from Suites 114 and 117 to Suites 113,
116, 118 in Building 4 (the "Existing
Premises") consisting of approximately 3,141
rentable s/f and extended the term of lease.
C. Tenant now desires to lease from Landlord certain additional space
commonly known as Building 4, Suite's 119 and 121, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, consisting of approximately 1,034 rentable square feet
(the "Expansion Premises") as is further described in Exhibit "B" attached
hereto and made a part hereof by this reference.
D. Tenant also desires to extend the term of Lease period of thirty six
(36) months under the terms and conditions set forth herein.
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NOW, THEREFORE, the parties hereto agree that the Original Lease and the
existing Lease Amendments described above are hereby further amended an follows:
AGREEMENT
1. Leased Space. In addition to leasing the Existing Premises, Tenant
agrees to lease the Expansion Premises consisting of approximately 1,034
rentable square feet for a total leased space of 4175 rentable square feet (the
"Leased Space").
2. Occupancy of Expansion Premises. Tenant's obligation to make payments
of Base Rent and other charges with respect to the Expansion Premises shall
commence upon the "Date of Occupancy" which shall be deemed to have occurred
upon substantial completion of tenant improvements. Landlord reasonably
estimates the Date of Occupancy shall occur on or about October 15, 1998.
However, in the event the Date of Occupancy is any date other than October 15,
1998, Landlord and Tenant shall execute a Commencement Letter setting forth the
actual Date of Occupancy for the Expansion Premises.
3. Term of Lease.
3.1 Existing Premises: The term of Lease for the Existing Premises
shall be extended for a period of three (3) years commencing September 1, 1998
and shall terminate August 31, 2001.
3.2 Expansion Premise: The term of Lease for the Expansion Premises
shall commence upon the Date of Occupancy and shall terminate August 31, 2001.
4. Base Rent. The Base Rent Schedule shall be as follows:
4.1 Existing Premises
09/01/98 to 08/31/99 - $4,710.00 per month ($1.50 s/f)
09/01/99 to 08/31/00 - $4,870.00 per month ($1.55 s/f)
09/01/00 to 08/31/01 - $5,025.00 per month ($1.60 s/f)
4.2 Expansion Premises
10/15/98 to 08/31/99 - $1,555.00 per month ($1.50 s/f)
09/01/99 to 08/31/00 - $1,600.00 per month ($1.55 s/f)
09/01/00 to 08/31/01 - $1,655.00 per month ($1.60 s/f)
Utilities and janitorial expenses are not included in the above Base Rent
and are the sole responsibility of Tenant as set forth in paragraphs 5 & 6
below.
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5. Utility Expenses.
5.1 Existing Premises. Tenant has transferred all utility meters
covering the Existing Premises into Tenant's name and pays all utility charges
for such space directly to SDG&E. Landlord shall not be responsible for the
payment of utilities.
5.2 Expansion Premises. Tenant to transfer SDG&E meter number 996489
into Tenant's name and pay all utilities related to the Expansion Premises
directly to SDG&E. Landlord shall not be responsible for the payment of
utilities.
6. Janitorial Expenses. Tenant shall be solely responsible to provide and
pay for its own janitorial services. Landlord shall not be responsible for
janitorial service.
7. Security Deposit. Tenant's current security deposit of $3,345.00 shall
be increased to $6,265.00. Concurrently with the execution and return of this
Amendment of Lease to Landlord Tenant agrees to deposit with Landlord the
additional security deposit in the amount of $2,920.00 for a total security
deposit held by Landlord of $6,265.00.
8. Tenant Improvements.
8.1 Landlord's Responsibility. Landlord shall, at Landlord's sole
cost and expense, paint, install vinyl tile in the bathroom, kitchen and
computer room, and install carpet and rubber base cove in all other areas of the
Leased Space identified in paragraph 1 above. In addition, Landlord shall be
responsible for completion and construction of tenant improvements as described
in Exhibit "C" attached hereto and made a part hereof by this reference. All
materials used shall be Landlord's building standard.
8.2 Tenant's Responsibility. Tenant shall pay for (i) any up-grade
in materials used over Landlord's building standard materials, (ii) any
construction change orders requested by Tenant that increases the scope of
tenant improvement work outlined in Exhibit "C" (iii) Tenant shall move all
equipment in the computer room to accommodate paint and vinyl tile installation,
and (iv) those improvements outlined in Exhibit "D" attached hereto and made a
part hereof by this reference. said improvements shall be constructed by
Landlord and reimbursed by Tenant at a cost not to exceed $750.00.
9. Option to Extend Term of Lease.
9.1 Option to Extend. Landlord conditionally grants to Tenant the
option to extend the term of this Lease for one (1) period of three (3) years at
the end of the original term (the "Renewal Term").
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9.2 Exercise of Option. To exercise such option, Tenant must
deliver written notice of the exercise thereof to Landlord no earlier than 360
days and not later than 180 days before the expiration of the initial Term of
this Lease.
9.3 Base Rent During Renewal Term. The monthly Base Rent during
the Renewal Term shall be as follows:
09/01/01 to 08/31/02 - $6,890.00 per month ($1.65 s/f)
09/01/02 to 08/31/03 - $7,100.00 per month ($1.70 s/f)
09/01/03 to 08/31/04 - $7,300.00 per month ($1.75 s/f)
The above rent schedule does not include utilities or janitorial service.
Tenant shall continue to be responsible for all utilities and janitorial
service.
9.4 Termination of Option to Extend. The Option to Extend as set
forth in paragraph 9.1 is personal to Tenant and shall be exercisable by Tenant
(and not an assignee, subleases, or other transferee of Tenant's interest in
this Lease) only if Tenant occupies the entire Premises. The Option to Extend
granted herein shall terminate upon (i) the default by Tenant of any term,
covenant or condition of the Lease regardless if such default is cured, or (ii)
upon Tenant's failure to deliver such written notice as outlined in paragraph
9.2 above.
10. First Right of offer to Expand.
10.1 Right of First Offer. Landlord hereby conditionally grants to
Tenant a right of first offer ("First Offer Right") with respect to Suite
120 located in Building 4 (the "First Offer Space"). Notwithstanding the
foregoing, such First Offer Right of Tenant shall commence only following
the expiration or earlier termination of the existing lease with Cal West
Management (the "Superior Lease") including any renewal or extension of
such superior Lease, whether or not such renewal or extension is pursuant
to an express written provision in such superior Lease, and regardless of
whether or not such renewal or extension is consummated pursuant to a
lease amendment or a new lease.
10.2 Procedure for Offer. Landlord shall notify Tenant (the "First
Offer Notice") when Landlord determines that the First Offer Space will become
available to lease to third parties. The First Offer Notice will describe the
First Offer Space and shall set forth the "First Offer Rent" as that term is
defined herein.
10.3 Procedure for Acceptance. If Tenant wishes to exercise Tenant's
First Offer Right with respect to the space described in the First Offer Notice,
then within three (3) business days after delivery of the First Offer Notice to
Tenant, Tenant shall deliver notice to Landlord of Tenant's intention to
exercise its First Offer Right with respect to the entire space described
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the First Offer Notice. If Tenant does not exercise its First Offer Right within
said three (3) business day period, then Landlord shall be free to lease the
space described in the First Offer Notice to anyone to whom Landlord desires on
any terms Landlord desires at any time during the Lease Term, without any
obligation to provide Tenant with a further right to lease such space.
10.4 First Offer Rent. If Tenant shall exercise its First Offer
Right the rent payable by Tenant for the First Offer Space (the "First Offer
Rent") shall be at the then existing rental rate for Tenant's existing space,
i.e., $1.50 s/f, or $1.55 s/f.
10.5 Landlord's Improvement of First Offer Space. If Tenant shall
exercise its First Offer Right during the first twelve month (12) period of the
initial term of this Lease, then Landlord shall paint and install new building
standard carpet in the First Offer Space. However, if Tenant shall exercise its
First Offer Right during the second twelve month period, then Landlord shall
paint and clean the existing carpet. All other improvements shall be at Tenant's
sole cost and expense.
10.6 Termination of First Offer Right. The First Offer Right set
forth in paragraph 10.1 above shall be personal to Tenant and shall be
exercisable by Tenant (and not an assignee, sublessee, or other transferee of
Tenant's interest in this Lease) only if Tenant occupies the entire existing
Leased Space as of the date of the First Offer Notice. The First Offer Right
granted herein shall automatically terminate upon (i) the default by Tenant of
any term, covenant or condition of the Lease regardless if such default is
cured, (ii) upon Tenant's failure to exercise its First Offer Right with respect
to such First Offer Space as offered by Landlord as outlined in paragraph 10.3,
or (iii) if the First Offer Right is not exercised within the first twenty four
(24) months of the initial term of this Lease.
11. Guarantor. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Guarantor of the Lease and each
Amendment pursuant to that Guarantee of Lease dated February 13, 1995, hereby
consents to this Amendment to Lease and acknowledges and agrees that the
Guarantee of Lease shall apply to this Amendment to Lease.
12. Continuing Effect of Lease. All other terms and conditions of the
Original Lease shall remain in full force and effect, and shall apply to all
space identified in each Amendment and the Expansion Premises except as
expressly modified by this Amendment. In the event any term or condition of the
Original Lease is inconsistent with, or contrary to, any term or condition
Amendment, this Amendment shall prevail.
(SIGNATURES ON NEXT PAGE)
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LANDLORD: NORTH COAST BUSINESS PARK,
a California Limited Partnership
Date: 9/25/98 By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ for ▇▇▇▇▇, Ltd.,
General Partner of North Coast
Business Park Managers, a California
Limited Partnership
TENANT: INTERACTIVE TELESIS, INC., a Delaware
Corporation
Date: 9/16/98 By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
GUARANTOR: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an Individual
Date: 9/16/98 By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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EXHIBIT "B"
Existing Premises - Suites 113, 116, 118
Expansion Premises - ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
[FLOOR PLAN]
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EXHIBIT "C"
LANDLORD'S IMPROVEMENTS
Construct two new offices with a/c supply & return, two 2x4 light
fixtures, two duplex 110v outlets, two phone stubouts, two light
switches, relocate T-stat, two Timely frame windows, two doors, cut 5'
opening between 119 & 118.
NOTE: Offices will be approximately 10'1" x 11'9".
Location of lighting, a/c outlets/switches may vary.
Existing phone outlets to be reused where possible.
Reverse swing of two doors in Suite 113.
[FLOOR PLAN]
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EXHIBIT "D"
TENANT'S IMPROVEMENTS
Construct new wall to ceiling, re-use existing door, install light switch, a/c
supply, demo 8'10" wall & leave header, cut 5' opening between 119 and 118
[FLOOR PLAN]
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AMENDMENT TO LEASE
This Amendment to Lease is entered into as of this 30th day of July,
1996, by and between NORTH COAST BUSINESS PARK, a California Limited Partnership
("Lessor") and INTERACTIVE TELESIS, INC., a British Columbia Corporation
("Lessee") with reference to the following facts:
RECITALS:
A. On or about February 13, 1995, and by way of Amendments to Lease
dated August 20, 1995, and July 29, 1996, Lessor and Lessee entered into that
certain Lease Agreement, pursuant to which Lessee leased from Lessor certain
premises situated in Building 4, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇ ▇▇▇, 117, and 113,
Encinitas, California (the "Original Premises"), a true and correct copy of the
Lease and each Amendment thereto is attached hereto as Exhibit "A."
B. Lessee now desires to lease from Lessor certain alternative premises
in Building 4, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇ ▇▇▇, 116, and 118, consisting of
approximately 3,141 rentable square feet (the "New Premises") and is more
particularly described in Exhibit "B" attached hereto and made a part hereof by
this reference.
C. Lessee and Lessor also desire to terminate the Lease with respect to
the Original Premises in ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇, and 117 concurrently with
completion of Lessor's tenant improvements for the New Premises and the date of
occupancy for the New Premises.
NOW, THEREFORE, the parties hereby agree as follows:
AGREEMENT
1. Leased Space: Lessee agrees to lease Suites 113, 116, and 118 in
Building 4 consisting of approximately 3,141 rentable square feet as described
in Exhibit B.
2. Date of Occupancy. Lessee's responsibility to make payments of rent
and other charges with respect to the New Premises shall commence on the "date
of occupancy" which shall be the actual date Lessor's improvements are
substantially completed. The parties reasonably anticipate that the tenant
improvements shall be completed within five (5) days after their initial
commencement.
3. Term: The term of Lease for all Leased Space shall be for a period
of twenty four (24) months commencing on the date of occupancy and ending twenty
four (24) months thereafter.
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4. Base Rent: The monthly Base Rent for the New Premises shall be as
follows:
First Twelve Month Period - $3,455.00 Per Month ($1.10 s/f)
Second Twelve Month Period - $3,612.00 Per Month ($1.15 s/f)
5. Utilities: Lessee shall transfer all utility meters into Lessee's
name and pay utility services directly to San Diego Gas and Electric. Lessor
shall not be required to pay for utility service.
6. Janitorial Service. Lessee shall provide janitorial service at
Lessee's expense. In the event Lessor shall provide monthly janitorial service'
Lessee agrees to reimburse Lessor's monthly janitorial expense which is
estimated to be $220.00 per month. Said estimated janitorial expense shall be
reconciled annually to the actual janitorial expense incurred by Lessor. In the
event the actual janitorial expense incurred by Lessor is less than the estimate
billed to Lessee, then Lessee shall receive a credit. In the event the estimated
janitorial expense exceeds Lessor's estimate, then Lessee agrees to pay its
pro-rata share of the excess.
7. Tenant Improvements. Lessor shall paint the New Premises using
Lessor's building standard color, clean all existing carpeting, demo and build
new walls and doors, and patch in the ceiling and carpet as shown on exhibit
"B." Any additional improvements deemed necessary by Lessee shall be at Lessee's
sole expense.
8. Security Deposit. The current security deposit of $2,499.70 held by
Lessor for Suites 112, 117, and 113, shall transfer to the New Premises, and
Lessee shall deposit with Lessor an additional $955.30 as additional security
deposit for the New Premises, for a total deposit of $3455.00.
9. Termination of Obligation - Original Premises. All obligations of
Lessee, with respect to the Lease, pertaining to the Original Premises,
including but not limited to the obligation to pay rent, utilities, or
janitorial expense, shall terminate on the Date of Occupancy for the New
Premises, as described in paragraph 2 above.
10. Continuing Effect of Lease. All terms and conditions of the
Original Lease, including the personal guarantee, shall remain in full force and
effect and shall apply to the New Premises except to the extent expressly
modified by this Amendment. In the event any term or condition of the Lease is
inconsistent with, or contrary to, any term or condition of this Amendment, this
Amendment shall prevail.
(SIGNATURES ARE ON NEXT PAGE)
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LESSOR:
NORTH COAST BUSINESS PARK, a
California Limited Partnership
DATE: 10/10/96 By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------ -----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, for ▇▇▇▇▇ Ltd.,
General Partner for North Coast
Business Park Managers, a California
Limited Partnership
LESSEE:
INTERACTIVE TELESIS, INC., a
British Columbia Corporation
DATE: 10/16/96 BY: /s/ ▇▇▇ ▇▇▇▇▇▇▇
------------ -----------------------------------------
▇▇▇ ▇▇▇▇▇▇▇, President
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EXHIBIT "B"
[FLOOR PLAN]
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AMENDMENT TO LEASE
This Amendment to Lease is entered into as of this 20th day of August,
1995, by and between NORTH COAST BUSINESS PARK., a California Limited
Partnership ("Lessor") and INTERACTIVE TELESIS, INC., a British Columbia
Corporation ("Lessee") with reference to the following facts:
RECITALS:
A. On or about February 13, 1995 Lessor and Lessee, entered into that
certain Lease Agreement, pursuant to which Lessee leased from Lessor certain
premises situated in Building 4, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ("Original Premises"), a true and correct copy of the Lease Agreement
is attached hereto as Exhibit "A", including each Amendment or Addendum,
Personal Guarantee and Exhibit thereto.
B. Lessee now desires to lease from Lessor certain additional premises
commonly known as Building 4, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇ and one office from
the adjacent suite 114, all of which consists of approximately 899 rentable
square feet ("Expansion Space"), which Expansion Space is more particularly
described in Exhibit "B" attached hereto and incorporated herein by this
reference.
NOW, THEREFORE, the parties hereby agree as follows:
AGREEMENT
1. LEASED SPACE: In addition to the 888 rentable square feet currently
leased by Lessee in suite 112, Lessee agrees to lease the Expansion Space in
Building 4 consisting of approximately 899 rentable square feet as described in
Exhibit B.
2. TERM:
Original Premises
The Lease expiration date for the Original Premises shall be extended to
February 28, 1997.
Expansion Space
The term of Lease for the Expansion Space shall commence on September 1,
1995 and shall terminate on February 28, 1997.
1
20
3. RENT:
Original Premises
Rent for the original Premises shall be as follows:
09/01/95 to 02/28/96 - $ 977.00 per month
03/01/96 to 02/28/97 - $1,021.00 per month
Expansion Space
Rent for the Expansion Space shall be as follows:
09/01/95 to 02/28/96 - $ 989.00 per month
03/01/96 to 02/28/97 - $1,034.00 per month
The above rent schedule includes janitorial service at Lessor's
expense.
4. UTILITIES: Lessee shall pay for utility services at Lessee's expense.
Lessor shall not be required to pay for utilities. If the utility service is not
separately metered, then Lessee shall pay monthly utilities based on Lessor's
estimate. Said estimated utilities shall be adjusted to actual utility costs
annually. Said utilities are estimated at $170.00 per month.
5. TENANT IMPROVEMENTS: The adjacent tenant in Suite 114 has agreed to
give Suite 112 their storage room to allow Suite 112 access to the Expansion
Space as shown on Exhibit "B." Lessor shall build a new storage room in the
Expansion Space of approximately 9'11" x 11'2" to replace the storage room for
the tenant in Suite 114. The new storage room shall have one 2' x 4' light
fixture, one HVAC grill, two duplex outlets, one light switch, one telephone
▇▇▇▇ and the shelving from the old storage room shall be relocated to the new
storage room. Lessor shall paint and clean the existing carpeting the Expansion
Space and the new storage room.
6. SECURITY DEPOSIT. In addition to the current security deposit of
$975.00 held by Lessor for Suite 112, Lessee shall deposit with Lessor an
additional $989.00 as a security deposit for Suite 117.
7. ABATED RENT - EXPANSION SPACE. Rent for months 2 and 3 of the Expansion
Space shall be $.70 per square foot or $629.00 per month. There shall be no
abated rent for the Original Premises.
(SIGNATURES ARE ON NEXT PAGE)
2
21
8. CONTINUING EFFECT OF LEASE. All terms and conditions of the Original
Lease, including the personal guarantee, shall remain in full force and effect
and shall apply to the Expansion Space except to the extent expressly modified
by this Amendment. In the event any term or condition of the Lease is
inconsistent with, or contrary to, any term or condition of this Amendment, this
Amendment shall prevail.
LESSOR:
NORTH COAST BUSINESS PARK, a
California Limited Partnership
DATE: 8/20/95 By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇, Property Manager
LESSEE:
INTERACTIVE TELESIS, INC., a
Columbia Corporation
DATE: 8/20/95 By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇ ▇▇▇▇▇▇▇, President
3
22
EXHIBIT "B"
[FLOOR PLAN OF PREMISES]
23
[CB COMMERCIAL LETTERHEAD]
OFFICE BUILDING LEASE
TABLE OF CONTENTS
PAGE
Article 1 LEASE OF PREMISES ............................................1
Article 2 DEFINITIONS ..................................................1
Article 3 EXHIBITS AND ADDENDA .........................................2
Article 4 DELIVERY OF POSSESSION .......................................2
Article 5 RENT .........................................................2
Article 6 INTEREST AND LATE CHARGES ....................................4
Article 7 SECURITY DEPOSIT .............................................4
Article 8 TENANT'S USE OF THE PREMISES .................................4
Article 9 SERVICES AND UTILITIES .......................................5
Article 10 CONDITION OF THE PREMISES ....................................5
Article 11 CONSTRUCTION, REPAIRS AND MAINTENANCE.........................5
Article 12 ALTERATIONS AND ADDITIONS.....................................6
Article 13 LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.....................6
Article 14 RULES AND REGULATIONS.........................................7
Article 15 CERTAIN RIGHTS RESERVED BY LANDLORD...........................7
Article 16 ASSIGNMENT AND SUBLETTING.....................................7
Article 17 HOLDING OVER..................................................8
Article 18 SURRENDER OF PREMISES.........................................8
Article 19 DESTRUCTION OR DAMAGE.........................................8
Article 20 EMINENT DOMAIN................................................8
Article 21 INDEMNIFICATION...............................................9
Article 22 TENANT'S INSURANCE............................................9
Article 23 WAIVER OF SUBROGATION........................................10
Article 24 SUBORDINATION AND ATTORNMENT.................................10
Article 25 TENANT ESTOPPEL CERTIFICATES.................................10
Article 26 TRANSFER OF LANDLORD'S INTEREST..............................10
Article 27 DEFAULT......................................................10
Article 28 BROKERAGE FEES...............................................11
Article 29 NOTICES......................................................11
Article 30 GOVERNMENT ENERGY OR UTILITY CONTROLS........................11
Article 31 RELOCATION OF PREMISES.......................................11
Article 32 QUIET ENJOYMENT..............................................12
Article 33 OBSERVANCE OF LAW............................................12
Article 34 FORCE MAJEURE................................................12
Article 35 CURING TENANT'S DEFAULTS.....................................12
Article 36 SIGN CONTROL.................................................12
Article 37 MISCELLANEOUS................................................12
24
[CB COMMERCIAL REAL ESTATE GROUP, INC. LETTERHEAD]
This Lease between North Coast Business Park, a California Limited Partnership,
("Landlord"), and Interactive Telesis, Inc., a British Columbia Corporation,
("Tenant"), is dated February 13, 1995.
1. LEASE OF PREMISES.
In consideration of the Rent (as defined at Section 5.4) and the provisions of
this Lease, Landlord leases to Tenant and Tenant leases from Landlord the
Premises shown by diagonal lines on the floor plan attached hereto as Exhibit
"A," and further described at Section 2l. The Premises are located within the
Building and Project described in Section 2m. Tenant shall have the
non-exclusive right (unless otherwise provided herein) in common with Landlord,
other tenants, subtenants and invitees, to use of the Common Areas (as defined
at Section 2e).
2. DEFINITIONS
As used in this Lease, the following terms shall have the following meanings:
a. Base Rent (initial): $11,721.60 per year.
b. Base Year: The calendar year of N/A.
c. Broker(s)
Landlord's: CB Commercial Real Estate Group, Inc.
Tenant's: ▇▇▇ ▇▇▇▇▇▇▇▇ Real Estate Broker.
In the event that CB Commercial Real Estate Group, Inc. represents both
Landlord and Tenant, Landlord and Tenant hereby confirm that they were timely
advised of the dual representation and that they consent to the same, and that
they do not expect said broker to disclose to either of them the confidential
information of the other party.
d. Commencement Date: February 15, 1995.
e. Common Areas: the building lobbies, common corridors and hallways,
restrooms, garage and parking areas, stairways, elevators and other
generally understood public or common areas. Landlord shall have the right
to regulate or restrict the use of the Common Areas.
f. Expense Stop: (fill in if applicable): $ Not applicable
g. Expiration Date: February 28, 1996, unless otherwise sooner terminated in
accordance with the provisions of this Lease.
i. Landlord's Mailing Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Tenant's Mailing Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
j. Monthly Installments of Base Rent (initial): $976.80 per month.
k. Parking: Tenant shall be permitted to park 3 cars on a non-exclusive basis
in the area(s) designated by Landlord for parking. Tenant shall abide by
any and all parking regulations and rules established from time to time by
Landlord or Landlord's parking operator. Landlord reserves the right to
separately charge Tenant's guests and visitors for parking.
l. Premises: that portion of the Building containing approximately 888 square
feet of Rentable Area, shown by diagonal lines on Exhibit "A," located on
the first floor of the Building and known as Suite 112.
m. Project: the building of which the Premises are a part (the "Building") and
any other buildings or improvements on the real property (the "Property")
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and further described
at Exhibit "B." The Project is known as North Coast Business Park.
n. Rentable Area: as to both the Premises and the Project, the respective
measurements of floor area as may from time to time be subject to lease by
Tenant and all tenants of the Project, respectively, as determined by
Landlord and applied on a consistent basis throughout the Project.
(1)
25
o. Security Deposit (Section 7): $975.00.
p. State: the State of California.
q. Tenant's First Adjustment Date (Section 5.2): the first day of the
calendar month following the Commencement Date plus N/A months.
r. Tenant's Use Clause (Article 8): General Office.
s. Term: the period commencing on the Commencement Date and expiring at
midnight on the Expiration Date.
3. EXHIBITS AND ADDENDA.
The exhibits and addenda listed below (unless lined out) are incorporated by
reference in this Lease:
a. Exhibit "A" - Floor Plan showing the Premises.
b. Exhibit "B" - Site Plan of the Project.
c. Exhibit "D" - Rules and Regulations.
d. Exhibit "E" - Sign Criteria.
e. Addenda:
One
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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4. DELIVERY OF POSSESSION.
If for any reason Landlord does not deliver possession of the Premises to
Tenant on the Commencement Date, Landlord shall not be subject to any liability
for such failure, the Expiration Date shall not change and the validity of this
Lease shall not be impaired, but Rent shall be abated until delivery of
possession. "Delivery of possession" shall be deemed to occur on the date
Landlord completes Landlord's Work as defined in Exhibit "C." If Landlord
permits Tenant to enter into possession of the Premises before the Commencement
Date, such possession shall be subject to the provisions of this Lease,
including, without limitation, the payment of Rent.
5. RENT.
5.1. Payment of Base Rent. Tenant agrees to pay the Base Rent for the Premises.
Monthly Installments of Base Rent shall be payable in advance on the first day
of each calendar month of the Term. If the Term begins (or ends) on other than
the first (or last) day of a calendar month, the Base Rent for the partial
month shall be prorated on a per diem basis. Tenant shall pay Landlord the
first Monthly Installment of Base Rent when Tenant executes the Lease.
5.2 Adjusted Base Rent.
26
5.4 Definition of Rent. All costs and expenses which Tenant assumes or agrees to
pay to Landlord under this Lease shall be deemed additional rent (which,
together with the Base Rent is sometimes referred to as the "Rent"). The Rent
shall be paid to the Building manager (or other person) and at such place, as
Landlord may from time to time designate in writing, without any prior demand
therefor and without deduction or offset, in lawful money of the United States
of America.
5.5 Rent Control. If the amount of Rent or any other payment due under this
Lease violates the terms of any governmental restrictions on such Rent or
payment, then the Rent or payment due during the period of such restrictions
shall be the maximum amount allowable under those restrictions. Upon termination
of the restrictions, Landlord shall, to the extent it is legally permitted,
recover from Tenant the difference between the amounts received during the
period of the restrictions and the amounts Landlord would have received had
there been no restrictions.
5.6 Taxes Payable by Tenant. In addition to the Rent and any other charges to be
paid by Tenant hereunder, Tenant shall reimburse Landlord upon demand for any
and all taxes payable by Landlord (other than net income taxes) which are not
otherwise reimbursable under this Lease, whether or not now customary or within
the contemplation of the parties, where such taxes are upon, measured by or
reasonably attributable to (a) the cost or value of Tenant's equipment,
furniture, fixtures and other personal property located in the Premises, or the
cost or value of any leasehold improvements made in or to the Premises by or for
Tenant, other than Building Standard Work made by Landlord, regardless of
whether title to such improvements is held by Tenant or Landlord; (b) the gross
or net Rent payable under this Lease, including, without limitation, any rental
or gross receipts tax levied by any taxing authority with respect to the receipt
of the Rent hereunder; (c) the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Premises or
any portion thereof; or (d) this transaction or any document to which Tenant is
a party creating or transferring an interest or an estate in the Premises: If it
becomes unlawful for Tenant to reimburse Landlord for any costs as required
under this Lease, the Base Rent shall be revised to net Landlord the same net
Rent after imposition of any tax or other charge upon Landlord as would have
been payable to Landlord but for the reimbursement being unlawful.
6. INTEREST AND LATE CHARGES.
If Tenant falls to pay when due any Rent or other amounts or charges which
Tenant is obligated to pay under the terms of this Lease, the unpaid amounts
shall bear interest at the maximum rate then allowed by law. Tenant acknowledges
that the late payment of any Monthly Installment of Base Rent will cause
Landlord to lose the use of that money and incur costs and expenses not
contemplated under this Lease, including without limitation, administrative and
collection costs and processing and accounting expenses, the exact amount of
which is extremely difficult to ascertain. Therefore, in addition to interest,
if any such installment is not received by Landlord within ten (10) days from
the date it is due, Tenant shall pay Landlord a late charge equal to ten percent
(10%) of such installment. Landlord and Tenant agree that this late charge
represents a reasonable estimate of such costs and expenses and is fair
compensation to Landlord for the loss suffered from such nonpayment by Tenant.
Acceptance of any interest or late charge shall not constitute a waiver of
Tenant's default with respect to such nonpayment by Tenant nor prevent Landlord
from exercising any other rights or remedies available to Landlord under this
Lease.
7. SECURITY DEPOSIT
Tenant agrees to deposit with Landlord the Security Deposit set forth at Section
2.0 upon execution of this Lease, as security for Tenant's faithful performance
of its obligations under this Lease. Landlord and Tenant agree that the Security
Deposit may be commingled with funds of Landlord and Landlord shall have no
obligation or liability for payment of interest on such deposit. Tenant shall
not mortgage, assign, transfer or encumber the Security Deposit without the
prior written consent of Landlord and any attempt by Tenant to do so shall be
void, without force or effect and shall not be binding upon Landlord.
If Tenant fails to pay any Rent or other amount when due and payable under this
Lease, or fails to perform any of the terms hereof, Landlord may appropriate and
apply or use all or any portion of the Security Deposit for Rent payments or any
other amount then due and unpaid, for payment of any amount for which Landlord
has become obligated as a result of Tenant's default or breach, and for any loss
or damage sustained by Landlord as a result of Tenant's default or breach, and
Landlord may so apply or use this deposit without prejudice to any other remedy
Landlord may have by reason of Tenant's default or breach. If Landlord so uses
any of the Security Deposit, Tenant shall, within ten (10) days after written
demand therefor, restore the Security Deposit to the full amount originally
deposited; Tenant's failure to do so shall constitute an act of default
hereunder and Landlord shall have the right to exercise any remedy provided for
at Article 27 hereof. Within fifteen (15) days after the Term (or any extension
thereof) has expired or Tenant has vacated the Premises, whichever shall last
occur, and provided Tenant is not then in default on any of its obligations
hereunder, Landlord shall return the Security Deposit to Tenant, or, if Tenant
has assigned its interest under this Lease, to the last assignee of Tenant. If
Landlord sells its interest in the Premises, Landlord may deliver this deposit
to the purchaser of Landlord's interest and thereupon be relieved of any further
liability or obligation with respect to the Security Deposit.
8. TENANT'S USE OF THE PREMISES.
Tenant shall use the Premises solely for the purposes set forth in Tenant's Use
Clause. Tenant shall not use or occupy the Premises in violation of law or any
covenant, condition or restriction affecting the Building or Project or the
certificate of occupancy issued for the Building or Project, and shall, upon
notice from Landlord, immediately discontinue any use of the Premises which is
declared by any governmental authority having jurisdiction to be a violation of
law or the certificate of occupancy. Tenant, at Tenant's own cost and expense,
shall comply with all laws, ordinances, regulations, rules and/or any directions
of any governmental agencies or authorities having jurisdiction which shall, by
reason of the nature of Tenant's use or occupancy of the Premises, impose any
duty upon Tenant or Landlord with respect to the Premises or its use or
occupation. A judgment of any court of competent jurisdiction or the admission
by Tenant In any action or proceeding against Tenant that Tenant has violated
any such laws, ordinances, regulations, rules and/or directions in the use of
the Premises shall be deemed to be a conclusive determination of that fact as
between Landlord and Tenant. Tenant shall not do or permit to be done anything
which will Invalidate or increase the cost of any fire, extended coverage or
other insurance policy covering the Building or Project and/or property located
therein, and shall comply with all rules, orders, regulations, requirements and
recommendations of the Insurance Services Office or any other organization
performing a similar function. Tenant shall
(4)
27
promptly upon demand reimburse Landlord for any additional premium charged for
such policy by reason of Tenant's failure to comply with the provisions of this
Article. 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 or occupants of the Building or Project, or injure or annoy them, or use
or allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Tenant cause, maintain or permit any nuisance
in, on or about the Premises. Tenant shall not commit or suffer to be committed
any waste in or upon the Premises.
9. SERVICES AND UTILITIES.
Provided that Tenant is not in default hereunder, Landlord agrees to furnish to
the Premises during generally recognized business days, and during hours
determined by Landlord in its sole discretion, and subject to the Rules and
Regulations of the Building or Project, electricity for normal desk top office
equipment and normal copying equipment, and heating, ventilation and air
conditioning ("HVAC") as required in Landlord's judgment for the comfortable use
and occupancy of the Premises. If Tenant desires HVAC at any other time,
Landlord shall use reasonable efforts to furnish such service upon reasonable
notice from Tenant and Tenant shall pay Landlord's charges therefor on demand.
Landlord shall also maintain and keep lighted the common stairs, common entries
and restrooms in the Building. Landlord shall not be in default hereunder or be
liable for any damages directly or indirectly resulting from, nor shall the Rent
be abated by reason of (i) the installation, use or interruption of use of any
equipment in connection with the furnishing of any of the foregoing services,
(ii) failure to furnish or delay in furnishing any such services where such
failure or delay is caused by accident or any condition or event beyond the
reasonable control of Landlord or by the making of necessary repairs or
improvements to the Premises, Building or Project, or (iii) the limitation,
curtailment or rationing of, or restrictions on, use of water, electricity, gas
or any other form of energy serving the Premises, Building or Project. Landlord
shall not be liable under any circumstances for a loss of or injury to property
or business, however occurring, through or in connection with or incidental to
failure to furnish any such services. If Tenant uses heat generating machines or
equipment in the Premises which affect the temperature otherwise maintained by
the HVAC 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.
Tenant shall not, without the written consent of Landlord, use any apparatus or
device in the Premises, including without limitation, electronic data processing
machines, punch card machines or machines using in excess of 120 volts, which
consumes more electricity than is usually furnished or supplied for the use of
premises as general office space, as determined by Landlord. Tenant shall not
connect any apparatus with electric current except through existing electrical
outlet in the Premises. Tenant shall not consume water or electric current in
excess of that usually furnished or supplied for the use of premises as general
office space (as determined by Landlord), without first procuring the written
consent of Landlord, which Landlord may refuse, and in the event of consent,
Landlord may have installed a water meter or electrical current in the Premises
to measure the amount of water or electric current consumed.
Nothing contained in this Article shall restrict Landlord's right to require at
any time separate metering of utilities furnished to the Premises. In the event
utilities are separately metered, Tenant shall pay promptly upon demand for all
utilities consumed at utility rates charged by the local public utility plus any
additional expense incurred by Landlord in keeping account of the utilities so
consumed. Tenant shall be responsible for the maintenance and repair of any such
meters at its sole cost.
Landlord shall furnish lighting replacement for building standard lights,
restroom supplies, window washing and janitor services in a manner that such
services are customarily furnished to comparable office buildings in the area.
10. CONDITION OF THE PREMISES.
Tenant's taking possession of the Premises shall be deemed conclusive evidence
that as of the date of taking possession the Premises are in good order and
satisfactory condition, except for such matters as to which Tenant gave Landlord
notice on or before the Commencement Date. No promise of Landlord to alter,
remodel, repair or improve the Premises, the Building or the Project and no
representation, express or implied, respecting any matter or thing relating to
the Premises, Building, Project or this Lease (including, without limitation,
the condition of the Premises, the Building or the Project) have been made to
Tenant by Landlord or its Broker or Sales Agent, other than as may be contained
herein or in a separate exhibit or addendum signed by Landlord and Tenant.
11. CONSTRUCTION, REPAIRS AND MAINTENANCE.
a. Landlord's Obligations. Landlord shall perform Landlord's Work to the
Premises as described in Exhibit "C." Landlord shall maintain in good order,
condition and repair the Building and all other portions of the Premises not the
obligation of Tenant or of any other tenant in the Building.
b. Tenant's Obligations.
(1) Tenant shall perform Tenant's Work to the Premises as described in
Exhibit "C."
(2) Tenant at Tenant's sole expense shall, except for services furnished
by Landlord pursuant to Article 9 hereof, maintain the Premises in good
order, condition and repair, including the interior surfaces of the
ceilings, walls and floors, all doors, all interior windows, all
plumbing, pipes and fixtures, electrical wiring, switches and fixtures,
Building Standard furnishings and special items and equipment installed
by or at the expense of Tenant.
(3) Tenant shall be responsible for all repairs and alterations in and
to the Premises, Building and Project and the facilities and systems
thereof, the need for which arises out of (i) Tenant's use or occupancy
of the Premises, (ii) the installation, removal, use or operation of
Tenant's Property (as defined in Article 13) In the Premises, (iii) the
moving of Tenant's Property into or out of the Building, or iv) the act,
omission, misuse or negligence of Tenant, its agents, contractors,
employees or invitees.
(5)
28
(4) If Tenant fails to maintain the Premises in good order, condition
and repair, Landlord shall give Tenant notice to do such acts as are
reasonably required to so maintain the Premises. If Tenant fails to
promptly commence such work and diligently prosecute it to completion,
then Landlord shall have the right to do such acts and expend such funds
at the expense of Tenant as are reasonably required to perform such
work. Any amount so expended by Landlord shall be paid by Tenant
promptly after demand with interest at the prime commercial rate then
being charged by Bank of America NT & SA plus two percent (2%) per
annum, from the date of such work, but not to exceed the maximum rate
then allowed by law. Landlord shall have no liability to Tenant for any
damage, inconvenience, or interference with the use of the Premises by
Tenant as a result of performing any such work.
c. Compliance with Law. Landlord and Tenant shall each do all acts required to
comply with all applicable laws, ordinances, and rules of any public authority
relating to their respective maintenance obligations as set forth herein.
d. Waiver by Tenant. Tenant expressly waives the benefits of any statute now or
hereafter in effect which would otherwise afford the Tenant the right to make
repairs at Landlord's expense or to terminate this Lease because of Landlord's
failure to keep the Premises In good order, condition and repair.
e. Load and Equipment Limits. Tenant shall not place a load upon any floor of
the Premises which exceeds the load per square foot which such floor was
designed to carry, as determined by Landlord or Landlord's structural engineer.
The cost of any such determination made by Landlord's structural engineer shall
be paid for by Tenant upon demand. Tenant shall not install business machines or
mechanical equipment which cause noise or vibration to such a degree as to be
objectionable to Landlord or other Building tenants.
f. Except as otherwise expressly provided in this Lease, Landlord shall have no
liability to Tenant nor shall Tenant's obligations under this Lease be reduced
or abated in any manner whatsoever by reason of any inconvenience, annoyance,
interruption or injury to business arising from Landlord's making any repairs or
changes which Landlord is required or permitted by this Lease or by any other
tenant's lease or required by law to make in or to any portion of the Project,
Building or the Premises. Landlord shall nevertheless use reasonable efforts to
minimize any interference with Tenant's business in the Premises.
g. Tenant shall give Landlord prompt notice of any damage to or defective
condition in any part or appurtenance of the Building's mechanical, electrical,
plumbing, HVAC or other systems serving, located in, or passing through the
Premises.
h. Upon the expiration or earlier termination of this Lease, Tenant shall return
the Premises to Landlord clean and in the same condition as on the date Tenant
took possession, except for normal wear and tear. Any damage to the Premises,
including any structural damage, resulting from Tenant's use or from the removal
of Tenant's fixtures, furnishings and equipment pursuant to Section 13b shall be
repaired by Tenant at Tenant's expense.
12. ALTERATIONS AND ADDITIONS.
a. Tenant shall not make any additions, alterations or improvements to the
Premises without obtaining the prior written consent of Landlord. Landlord's
consent may be conditioned on Tenant's removing any such additions, alterations
or improvements upon the expiration of the Term and restoring the Premises to
the same condition as on the date Tenant took possession. All work with respect
to any addition, alteration or improvement shall be done in a good and
workmanlike manner by properly qualified and licensed personnel approved by
Landlord, and such work shall be diligently prosecuted to completion. Landlord
may, at Landlord's option, require that any such work be performed by Landlord's
contractor, in which case the cost of such work shall be paid for before
commencement of the work. Tenant shall pay to Landlord upon completion of any
such work by Landlord's contractor, an administrative fee of fifteen percent
(15%) of the cost of the work.
b. Tenant shall pay the costs of any work done on the Premises pursuant to
Section 12a, and shall keep the Premises, Building and Project free and clear of
liens of any kind. Tenant shall indemnify, defend against and keep Landlord free
and harmless from all liability, loss, damage, costs, attorneys' fees and any
other expense incurred on account of claims by any person performing work or
furnishing materials or supplies for Tenant or any person claiming under Tenant.
Tenant shall keep Tenant's leasehold interest, and any additions or improvements
which are or become the property of Landlord under this Lease, free and clear of
all attachment or judgment liens. Before the actual commencement of any work for
which a claim or lien may be filed, Tenant shall give Landlord notice of the
intended commencement date a sufficient time before that date to enable Landlord
to post notices of non-responsibility or any other notices which Landlord deems
necessary for the proper protection of Landlord's interest in the Premises,
Building or the Project, and Landlord shall have the right to enter the Premises
and post such notices at any reasonable time.
c. Landlord may require, at Landlord's sole option, that Tenant provide to
Landlord, at Tenant's expense, a lien and completion bond in an amount equal to
at least one and one-half (1 1/2) times the total estimated cost of any
additions, alterations or improvements to be made in or to the Premises, to
protect Landlord against any liability for mechanic's and materialmen's liens
and to insure timely completion of the work. Nothing contained in this Section
12c shall relieve Tenant of its obligation under Section 12b to keep the
Premises, Building and Project free of all liens.
d. Unless their removal is required by Landlord as provided In Section 12a, all
additions, alterations and improvements made to the Promises shall become the
property of Landlord and be surrendered with the Premises upon the expiration of
the Term; provided, however, Tenant's equipment, machinery and trade fixtures
which can be removed without damage to the Premises shall remain the property of
Tenant and may be removed, subject to the provisions of Section 13b.
13. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.
a. All fixtures, equipment, improvements and appurtenances attached to or built
into the Premises at the commencement of or during the Term, whether or not by
or at the expense of Tenant ("Leasehold Improvements") shall be and remain a
part of the Premises, shall be the property of Landlord and shall not be removed
by Tenant, except as expressly provided in Section 13b.
(6)
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b. All movable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment located in the
Premises and acquired by or for the account of Tenant, without expense to
Landlord, which can be removed without structural damage to the Building,
and all furniture, furnishings and other articles of movable personal
property owned by Tenant and located in the Premises (collectively,
"Tenant's Property") shall be and shall remain the property of Tenant and
may be removed by Tenant at any time during the Term; provided that if any
of Tenant's Property is removed, Tenant shall promptly repair any damage to
the Premises or to the Building resulting from such removal.
14. RULES AND REGULATIONS.
Tenant agrees to comply with (and cause its agents, contractors, employees and
invitees to comply with) the rules and regulations attached hereto as Exhibit
"D" and with such reasonable modifications thereof and additions thereto as
Landlord may from time to time make. Landlord shall not be responsible for any
violation of said rules and regulations by other tenants or occupants of the
Building or Project.
15. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without liability to Tenant
for (a) damage or injury to property, person or business, (b) causing an actual
or constructive eviction from the Premises, or (c) disturbing Tenant's use or
possession of the Premises:
a. To name the Building and Project and to change the name or street
address of the Building or Project;
b. To install and maintain all signs on the exterior and interior of the
Building and Project;
c. To have pass keys to the Premises and all doors within the Premises,
excluding Tenant's vaults and safes;
d. At any time during the term, and on reasonable prior notice to Tenant,
to inspect the Premises, and to show the Premises to any prospective
purchaser or mortgagee of the Project, or to any assignee of any mortgage
on the Project, or to others having an interest in the Project or Landlord,
and during the last six months of the Term, to show the Premises to
prospective tenants thereof; and
e. To enter the Premises for the purpose of making inspections, repairs,
alterations, additions or improvements to the Premises or the Building
(including, without limitation, checking, calibrating, adjusting or
balancing controls and other parts of the HVAC system), and to take all
steps as may be necessary or desirable for the safety, protection,
maintenance or preservation of the Premises or the Building or Landlord's
interest therein, or as may be necessary or desirable for the operation or
improvement of the Building or in order to comply with laws, orders or
requirements of governmental or other authority. Landlord agrees to use its
best efforts (except in an emergency) to minimize interference with
Tenant's business in the Premises in the course of any such entry.
16. ASSIGNMENT AND SUBLETTING.
No assignment of this Lease or sublease of all or any part of the Premises shall
be permitted, except as provided in this Article 16.
a. Tenant shall not, without the prior written consent of Landlord, assign
or hypothecate this Lease or any interest herein or sublet the Premises or
any part thereof, or permit the use of the Premises by any party other than
Tenant. Any of the foregoing acts without such consent shall be void and
shall, at the option of Landlord, terminate this Lease. This Lease shall
not, nor shall any interest of Tenant herein, be assignable by operation of
law without the written consent of Landlord.
b. If at any time or from time to time during the Term Tenant desires to
assign this Lease or sublet all or any part of the Premises, Tenant shall
give notice to Landlord setting forth the terms and provisions of the
proposed assignment or sublease, and the identity of the proposed assignee
or subtenant. Tenant shall promptly supply Landlord with such information
concerning the business background and financial condition of such proposed
assignee or subtenant as Landlord may reasonably request. Landlord shall
have the option, exercisable by notice given to Tenant within twenty (20)
days after Tenant's notice is given, either to sublet such space from
Tenant at the rental and on the other terms set forth in this Lease for the
term set forth in Tenant's notice, or, in the case of an assignment, to
terminate this Lease. If Landlord does not exercise such option, Tenant may
assign the Lease or sublet such space to such proposed assignee or
subtenant on the following further conditions:
(1) Landlord shall have the right to approve such proposed assignee or
subtenant, which approval shall not be unreasonably withheld;
(2) The assignment or sublease shall be on the same terms set forth in
the notice given to Landlord;
(3) No assignment or sublease shall be valid and no assignee or
sublessee shall take possession of the Premises until an executed
counterpart of such assignment or sublease has been delivered to
Landlord;
(4) No assignee or sublessee shall have a further right to assign or
sublet except on the terms herein contained; and
(5) Any sums or other economic consideration received by Tenant as a
result of such assignment or subletting, however denominated under the
assignment or sublease, which exceed, in the aggregate, (i) the total
sums which Tenant is obligated to pay Landlord under this Lease
(prorated to reflect obligations allocable to any portion of the
Premises subleased), plus (ii) any real estate brokerage commissions
or fees payable in connection with such assignment or subletting,
shall be paid to Landlord as additional rent under this Lease without
affecting or reducing any other obligations of Tenant hereunder.
c. Notwithstanding the provisions of paragraphs a and b above, Tenant may assign
this Lease or sublet the Premises or any portion thereof, without Landlord's
consent and without extending any recapture or termination option to Landlord,
to any corporation which controls, is controlled by or is under common control
with Tenant, or to any corporation resulting from a merger or consolidation with
Tenant, or to any person or entity which acquires all the assets of Tenant's
business as a going concern, provided that (i) the assignee or sublessee
assumes, in full, the obligations of Tenant under this Lease, (ii) Tenant
remains fully liable under this Lease, and (iii) the use of the Premises under
Article 8 remains unchanged.
(7)
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d. No subletting or assignment shall release Tenant of Tenant's obligations
under this Lease or alter the primary liability of Tenant to pay the Rent
and to perform all other obligations to be performed by Tenant hereunder.
The acceptance of Rent by Landlord from any other person shall not be
deemed to be a waiver by Landlord of any provision hereof. Consent to one
assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by an assignee or
subtenant of Tenant or any successor of Tenant in the performance of any of
the terms hereof, Landlord may proceed directly against Tenant without the
necessity of exhausting remedies against such assignee, subtenant or
successor. Landlord may consent to subsequent assignments of the Lease or
sublettings or amendments or modifications to the Lease with assignees of
Tenant, without notifying Tenant, or any successor of Tenant, and without
obtaining its or their consent thereto and any such actions shall not
relieve Tenant of liability under this Lease.
e. If Tenant assigns the Lease or sublets the Premises or requests the
consent of Landlord to any assignment or subletting or if Tenant requests
the consent of Landlord for any act that Tenant proposes to do, then Tenant
shall, upon demand, pay Landlord an administrative fee of One Hundred Fifty
and No/100ths Dollars ($150.00) plus any attorneys' fees reasonably
incurred by Landlord in connection with such act or request.
17. HOLDING OVER.
If after expiration of the Term, Tenant remains in possession of the Premises
with Landlord's permission (express or implied), Tenant shall become a tenant
from month to month only, upon all the provisions of this Lease (except as to
term and Base Rent), but the "Monthly Installments of Base Rent" payable by
Tenant shall be increased to one hundred fifty percent (150%) of the Monthly
Installments of Base Rent payable by Tenant at the expiration of the Term. Such
monthly rent shall be payable in advance on or before the first day of each
month. If either party desires to terminate such month to month tenancy, it
shall give the other party not less than thirty (30) days advance written notice
of the date of termination.
18. SURRENDER OF PREMISES.
a. Tenant shall peaceably surrender the Premises to Landlord on the
Expiration Date, in broom-clean condition and in as good condition as when
Tenant took possession, except for (i) reasonable wear and tear, (ii) loss
by fire or other casualty, and (iii) loss by condemnation. Tenant shall, on
Landlord's request, remove Tenant's Property on or before the Expiration
Date and promptly repair all damage to the Premises or Building caused by
such removal.
b. If Tenant abandons or surrenders the Premises, or is dispossessed by
process of law or otherwise, any of Tenant's Property left on the Premises
shall be deemed to be abandoned, and, at Landlord's option, title shall
pass to Landlord under this Lease as by a ▇▇▇▇ of sale. If Landlord elects
to remove all or any part of such Tenant's Property, the cost of removal,
including repairing any damage to the Premises or Building caused by such
removal, shall be paid by Tenant. On the Expiration Date Tenant shall
surrender all keys to the Premises.
19. DESTRUCTION OR DAMAGE.
a. If the Premises or the portion of the Building necessary for Tenant's
occupancy is damaged by fire, earthquake, act of God, the elements of other
casualty, Landlord shall, subject to the provisions of this Article,
promptly repair the damage, if such repairs can, in Landlord's opinion, be
completed within (90) ninety days. If Landlord determines that repairs can
be completed within ninety (90) days, this Lease shall remain in full force
and effect, except that if such damage is not the result of the negligence
or willful misconduct of Tenant or Tenant's agents, employees, contractors,
licensees or invitees, the Base Rent shall be abated to the extent Tenant's
use of the Premises is impaired, commencing with the date of damage and
continuing until completion of the repairs required of Landlord under
Section 19d.
b. If in Landlord's opinion, such repairs to the Premises or portion of the
Building necessary for Tenant's occupancy cannot be completed within
ninety(90) days, Landlord may elect, upon notice to Tenant given within
thirty (30) days after the date of such fire or other casualty, to repair
such damage, in which event this Lease shall continue in full force and
effect, but the Base Rent shall be partially abated as provided in Section
19a. If Landlord does not so elect to make such repairs, this Lease shall
terminate as of the date of such fire or other casualty.
c. If any other portion of the Building or Project is totally destroyed or
damaged to the extent that in Landlord's opinion repair thereof cannot be
completed within ninety (90) days, Landlord may elect upon notice to Tenant
given within thirty (30) days after the date of such fire or other
casualty, to repair such damage, in which event this Lease shall continue
in full force and effect, but the Base Rent shall be partially abated as
provided in Section 19a. If Landlord does not elect to make such repairs,
this Lease shall terminate as of the date of such fire or other casualty.
d. If the Premises are to be repaired under this Article, Landlord shall
repair at its cost any injury or damage to the Building and Building
Standard Work in the Premises. Tenant shall be responsible at its sole cost
and expense for the repair, restoration and replacement of any other
Leasehold improvements and Tenant's Property. Landlord shall not be liable
for any loss of business, inconvenience or annoyance arising from any
repair or restoration of any portion of the Premises, Building or Project
as a result of any damage from fire or other casualty.
e. This Lease shall be considered an express agreement governing any case
of damage to or destruction of the Premises, Building or Project by fire or
other casualty, and any present or future law which purports to govern the
rights of Landlord and Tenant in such circumstances in the absence of
express agreement, shall have no application.
20. EMINENT DOMAIN.
a. If the whole of the Building or Premises is lawfully taken by
condemnation or in any other manner for any public or quasi-public purpose,
this Lease shall terminate as of the date of such taking, and Rent shall be
prorated to such date. If less than the whole of the Building or Premises
is so taken, this Lease shall be unaffected by such taking, provided that
(i) Tenant shall have the right to terminate this Lease by notice to
Landlord given within ninety (90) days after the date of such taking if
twenty percent (20%) or more of the Premises is taken and the remaining
area of the Premises is not reasonably sufficient for Tenant to continue
operation of its business, and (ii) Landlord shall have the right to
terminate this Lease by notice to Tenant given within ninety (90) days
after the date of such taking. If either Landlord or Tenant so elects to
terminate this Lease, the Lease shall terminate on the thirtieth (30th) day
after either such notice. The Rent shall be prorated to the date of
termination. If this Lease continues in force upon such partial taking, the
Base Rent and Tenant's Proportionate Share shall be equitably adjusted
according to the remaining Rentable Area of the Premises and Project.
(8)
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b. In the event of any taking, partial or whole, all of the proceeds of any
award, judgment or settlement payable by the condemning authority shall be
the exclusive property of Landlord, and Tenant hereby assigns to Landlord
all of its right, title and interest in any award, judgment or settlement
from the condemning authority. Tenant, however, shall have the right, to
the extent that Landlord's award is not reduced or prejudiced, to claim
from the condemning authority (but not from Landlord) such compensation as
may be recoverable by Tenant in its own right for relocation expenses and
damage to Tenant's personal property.
c. In the event of a partial taking of the Premises which does not result
in a termination of this Lease, Landlord shall restore the remaining
portion of the Premises as nearly as practicable to its condition prior to
the condemnation or taking, but only to the extent of Building Standard
Work. Tenant shall be responsible at its sole cost and expense for the
repair, restoration and replacement of any other Leasehold Improvements and
Tenant's Property.
21. INDEMNIFICATION.
a. Tenant shall indemnify and hold Landlord harmless against and from
liability and claims of any kind for loss or damage to property of Tenant
or any other person, or for any injury to or death of any person, arising
out of: (1) Tenant's use and occupancy of the Premises, or any work,
activity or other things allowed or suffered by Tenant to be done in, on or
about the Premises; (2) any breach of default by Tenant of any of Tenant's
obligations under this Lease; or (3) any negligent or otherwise tortious
act or omission of Tenant, its agents, employees, invitees or contractors.
Tenant shall at Tenant's expense, and by counsel satisfactory to Landlord,
defend Landlord in any action or proceeding arising from any such claim and
shall indemnify Landlord against all costs, attorneys' fees, expert witness
fees and any other expenses incurred in such action or proceeding. As a
material part of the consideration for Landlord's execution of this Lease,
Tenant hereby assumes all risk of damage or injury to any person or
property in, on or about the Premises from any cause.
b. Landlord shall not be liable for injury or damage which may be sustained
by the person or property of Tenant, its employees, invitees or customers,
or any other person in or about the Premises, caused by or resulting from
fire, steam, electricity, gas, water or rain which may leak or flow from or
into any part of the Premises, or from the breakage, leakage, obstruction
or other defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures, whether such damage or injury results
from conditions arising upon the Premises or upon other portions of the
Building or Project or from other sources. Landlord shall not be liable for
any damages arising from any act or omission of any other tenant of the
Building or Project.
22. TENANT'S INSURANCE.
a. All insurance required to be carried by Tenant hereunder shall be issued
by responsible insurance companies acceptable to Landlord and Landlord's
lender and qualified to do business in the State. Each policy shall name
Landlord, and at Landlord's request any mortgagee of Landlord, as an
additional insured, as their respective interests may appear. Each policy
shall contain (i) a cross-liability endorsement, (ii) a provision that such
policy and the coverage evidenced thereby shall be primary and
non-contributing with respect to any policies carried by Landlord and that
any coverage carried by Landlord shall be excess insurance, and (iii) a
waiver by the insurer of any right of subrogation against Landlord, its
agents, employees and representatives, which arises or might arise by
reason of any payment under such policy or by reason of any act or omission
of Landlord, its agents, employees or representatives. A copy of each paid
up policy (authenticated by the insurer) or certificate of the insurer
evidencing the existence and amount of each insurance policy required
hereunder shall be delivered to Landlord before the date Tenant is first
given the right of possession of the Premises, and thereafter within thirty
(30) days after any demand by Landlord therefor. Landlord may, at any time
and from time to time, inspect and/or copy any insurance policies required
to be maintained by Tenant hereunder. No such policy shall be cancellable
except after twenty (20) days written notice to Landlord and Landlord's
lender. Tenant shall furnish Landlord with renewals or "binders" of any
such policy at least ten (10) days prior to the expiration thereof. Tenant
agrees that if Tenant does not take out and maintain such insurance,
Landlord may (but shall not be required to) procure said insurance on
Tenant's behalf and charge the Tenant the premiums together with a
twenty-five percent (25%) handling charge, payable upon demand. Tenant
shall have the right to provide such insurance coverage pursuant to blanket
policies obtained by the Tenant, provided such blanket policies expressly
afford coverage to the Premises, Landlord, Landlord's mortgagee and Tenant
as required by this Lease.
b. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall procure,
pay for and maintain in effect policies of casualty insurance covering (i)
all Leasehold Improvements (including any alterations, additions or
improvements as may be made by Tenant pursuant to the provisions of Article
12 hereof), and (ii) trade fixtures, merchandise and other personal
property from time to time in, on or about the Premises, in an amount not
less than one hundred percent (100%) of their actual replacement cost from
time to time, providing protection against any peril included within the
classification "Fire and Extended Coverage" together with insurance against
sprinkler damage, vandalism and malicious mischief. The proceeds of such
insurance shall be used for the repair or replacement of the property so
insured. Upon termination of this Lease following a casualty as set forth
herein, the proceeds under (i) shall be paid to Landlord, and the proceeds
under (ii) above shall be paid to Tenant.
c. Beginning on the date Tenant is give access to the Premises for any
purpose and continuing until expiration of the Term, Tenant shall procure,
pay for and maintain in effect workers' compensation insurance as required
by law and comprehensive public liability and property damage insurance
with respect to the construction of improvements on the Premises, the use,
operation or condition of the Premises and the operations of Tenant in, on
or about the Premises, providing personal injury and broad form property
damage coverage for not less than One Million Dollars ($1,000,000.00)
combined single limit for bodily injury, death and property damage
liability.
d. Not less than every three (3) years during the Term, Landlord and
Tenant shall mutually agree to increases in all of Tenant's insurance
policy limits for all insurance to be carried by Tenant as set forth in
this Article. In the event Landlord and Tenant cannot mutually agree upon
the amounts of said increases, then Tenant agrees that all insurance
policy limits as set forth in this Article shall be adjusted for increases
in the cost of living in the same manner as is set forth in Section 5.2
hereof for the adjustment of the Base Rent.
(9)
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23. WAIVER OF SUBROGATION.
Landlord and Tenant each hereby waive all rights of recovery against the other
and against the officers, employees, agents and representatives of the other,
on account of loss by or damage to the waiving party of its property or the
property of others under its control, to the extent that such loss or damage is
insured against under any fire and extended coverage insurance policy which
either may have in force at the time of the loss or damage. Tenant shall, upon
obtaining the policies of insurance required under this Lease, give notice to
its insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease.
24. SUBORDINATION AND ATTORNMENT.
Upon written request of Landlord, or any first mortgagee or first deed of trust
beneficiary of Landlord, or ground lessor of Landlord, Tenant shall, in
writing, subordinate its rights under this Lease to the lien of any first
mortgage or first deed of trust, or to the interest of any lease in which
Landlord is lessee, and to all advances made or hereafter to be made
thereunder. However, before signing any subordination agreement, Tenant shall
have the right to obtain from any lender or lessor or Landlord requesting such
subordination, an agreement in writing providing that, as long as Tenant is not
in default hereunder, this Lease shall remain in effect for the full Term. The
holder of any security interest may, upon written notice to Tenant, elect to
have this Lease prior to its security interest regardless of the time of the
granting or recording of such security interest.
In the event of any foreclosure sale, transfer in lieu of foreclosure or
termination of the lease in which Landlord is lessee, Tenant shall attorn to
the purchaser, transferee or lessor as the case may be, and recognize that
party as Landlord under this Lease, provided such party acquires and accepts
the Premises subject to this Lease.
25. TENANT ESTOPPEL CERTIFICATES.
Within ten (10) days after written request from Landlord, Tenant shall execute
and deliver to Landlord or Landlord's designee, a written statement certifying
(a) that this Lease is unmodified and in full force and effect, or is in full
force and effect as modified and stating the modifications; (b) the amount of
Base Rent and the date to which Base Rent and additional rent have been paid in
advance; (c) the amount of any security deposited with Landlord; and (d) that
Landlord is not in default hereunder or, if Landlord is claimed to be in
default, stating the nature of any claimed default. Any such statement may be
relied upon by a purchaser, assignee or lender. Tenant's failure to execute and
deliver such statement within the time required shall at Landlord's election be
a default under this Lease and shall also be conclusive upon Tenant that: (1)
this Lease is in full force and effect and has not been modified except as
represented by Landlord; (2) there are no uncured defaults in Landlord's
performance and that Tenant has no right of offset, counter-claim or deduction
against Rent; and (3) not more than one month's Rent has been paid in advance.
26. TRANSFER OF LANDLORD'S INTEREST.
In the event of any sale or transfer by Landlord of the Premises, Building or
Project, and assignment of this Lease by Landlord, Landlord shall be and is
hereby entirely freed and relieved of any and all liability and obligations
contained in or derived from this Lease arising out of any act, occurrence or
omission relating to the Premises, Building, Project or Lease occurring after
the consummation of such sale or transfer, providing the purchaser shall
expressly assume all of the covenants and obligations of Landlord under this
Lease. If any security deposit or prepaid Rent has been paid by Tenant,
Landlord may transfer the security deposit or prepaid Rent to Landlord's
successor and upon such transfer, Landlord shall be relieved of any and all
further liability with respect thereto.
27. DEFAULT.
27.1. Tenant's Default. The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by Tenant:
a. If Tenant abandons or vacates the Premises; or
b. If Tenant fails to pay any Rent or any other charges required to be paid
by Tenant under this Lease and such failure continues for five (5) days
after such payment is due and payable; or
C. If tenant fails to promptly and fully perform any other covenant,
condition or agreement contained in this Lease and such failure continues
for thirty (30) days after written notice thereof from Landlord to Tenant;
or
d. If a writ of attachment or execution is levied on this Lease or on any
of Tenant's Property; or
e. If Tenant makes a general assignment for the benefit of creditors, or
provides for an arrangement, composition, extension or adjustment with its
creditors; or
f. If Tenant files a voluntary petition for relief or if a petition against
Tenant in a proceeding under the federal bankruptcy laws or other
insolvency laws is filed and not withdrawn or dismissed within forty-five
(45) days thereafter, of if under the provisions of any law providing for
reorganization or winding up of corporations, any court of competent
jurisdiction assumes jurisdiction, custody or control of Tenant or any
substantial part of its property and such jurisdiction, custody or control
remains in force unrelinquished, unstayed or unterminated for a period of
forty-five (45) days; or
g. If in any proceeding or action in which Tenant is a party, a trustee,
receiver, agent or custodian is appointed to take charge of the Premises or
Tenant's Property (or has the authority to do so) for the purpose of
enforcing a lien against the Premises or Tenant's Property; or
h. If Tenant is a partnership or consists of more than one(1) person or
entity, if any partner of the partnership or other person or entity is
involved in any of the acts or events described in subparagraphs d through
g above.
27.2. Remedies. In the event of Tenant's default hereunder, then in addition to
any other rights or remedies Landlord may have under any law, Landlord shall
have the right, at Landlord's option, without further notice or demand of any
kind to do the following:
a. Terminate this Lease and Tenant's right to possession of the Premises
and reenter the Premises and take possession thereof, and Tenant shall have
no further claim to the Premises or under this Lease; or
b. Continue this Lease in effect, reenter and occupy the Premises for the
account of Tenant, and collect any unpaid Rent or other charges which have
or thereafter become due and payable; or
c. Reenter the Premises under the provisions of subparagraph b, and
thereafter elect to terminate this Lease and Tenant's right to possession
of the Premises.
(10)
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If Landlord reenters the Premises under the provisions of subparagraphs b or c
above, Landlord shall not be deemed to have terminated this Lease or the
obligation of Tenant to pay any Rent or other charges thereafter accruing,
unless Landlord notifies Tenant in writing of Landlord's election to terminate
this Lease. In the event of any reentry or retaking of possession by Landlord,
Landlord shall have the right, but not the obligation, to remove all or any part
of Tenant's Property in the Premises and to place such property in storage at a
public warehouse at the expense and risk of Tenant. If Landlord elects to relet
the Premises for the account of Tenant, the rent received by Landlord from such
reletting shall be applied as follows: first, to the payment of any indebtedness
other than Rent due hereunder from Tenant to Landlord; second, to the payment of
any costs of such reletting; third, to the payment of the cost of any
alterations or repairs to the Premises; fourth to the payment of Rent due and
unpaid hereunder; and the balance, if any, shall be held by Landlord and applied
in payment of future Rent as it becomes due. If that portion of rent received
from the reletting which is applied against the Rent due hereunder is less than
the amount of the Rent due, Tenant shall pay the deficiency to Landlord promptly
upon demand by Landlord. Such deficiency shall be calculated and paid monthly.
Tenant shall also pay to Landlord, as soon as determined, any costs and expenses
incurred by Landlord in connection with such reletting or in making alterations
and repairs to the Premises, which are not covered by the rent received from the
reletting.
Should Landlord elect to terminate this Lease under the provisions of
subparagraph a or c above, Landlord may recover as damages from Tenant the
following:
1. Past Rent. The worth at the time of the award of any unpaid Rent which
had been earned at the time of termination; plus
2. Rent Prior to Award. The worth at the time of the 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 Tenant proves
could have been reasonably avoided; plus
3. Rent After Award. The worth at the time of the award of the amount by
which the unpaid Rent for the balance of the Term after the time of award
exceeds the amount of the rental loss that Tenant proves could be
reasonably avoided; plus
4. Proximately Caused Damages. Any other amount necessary to compensate
Landlord for all detriment proximately caused by Tenant's failure to
perform its obligations under this Lease or which in the ordinary course of
things would be likely to result therefrom, including, but not limited to,
any costs or expenses (including attorneys' fees), incurred by Landlord in
(a) retaking possession of the Premises, (b) maintaining the Premises after
Tenant's default, (c) preparing the Premises for reletting to a new tenant,
including any repairs or alterations, and (d) reletting the Premises,
including broker's commissions.
"The worth at the time of the award" as used in subparagraphs 1 and 2 above, is
to be computed by allowing interest at the rate of ten percent (10%) per annum.
"The worth at the time of the award" as used in subparagraph 3 above, is to be
computed by discounting the amount at the discount rate of the Federal Reserve
Bank situated nearest to the Premises at the time of the award plus one percent
(1%).
The waiver by Landlord of any breach of any term, covenant or condition of this
Lease shall not be deemed a waiver of such term, covenant or condition or of any
subsequent breach of the same or any other term, covenant or condition.
Acceptance of Rent by Landlord subsequent to any breach hereof shall not be
deemed a waiver of any preceding breach other than the failure to pay the
particular Rent so accepted, regardless of Landlord's knowledge of any breach at
the time of such acceptance of Rent. Landlord shall not be deemed to have waived
any term, covenant or condition unless Landlord gives Tenant written notice of
such waiver.
27.3 Landlord's Default. If Landlord fails to perform any covenant, condition or
agreement contained in this Lease within thirty (30) days after receipt of
written notice from Tenant specifying such default, or if such default cannot
reasonably be cured within thirty (30) days, if Landlord fails to commence to
cure within that thirty (30) day period, then Landlord shall be liable to Tenant
for any damages sustained by Tenant as a result of Landlord's breach; provided,
however, it is expressly understood and agreed that if Tenant obtains a money
judgment against Landlord resulting from any default or other claim arising
under this Lease, that judgment shall be satisfied only out of the rents,
issues, profits, and other income actually received on account of Landlord's
right, title and interest in the Premises, Building or Project, and no other
real, personal or mixed property of Landlord (or of any of the partners which
comprise Landlord, if any) wherever situated, shall be subject to levy to
satisfy such judgment. If, after notice to Landlord of default, Landlord (or any
first mortgagee or first deed of trust beneficiary of Landlord) fails to cure
the default as provided herein, then Tenant shall have the right to cure that
default at Landlord's expense. Tenant shall not have the right to terminate this
Lease or to withhold, reduce or offset any amount against any payments of Rent
or any other charges due and payable under this Lease except as otherwise
specifically provided herein.
28. BROKERAGE FEES.
Tenant warrants and represents that it has not dealt with any real estate broker
or agent in connection with this Lease or its negotiation except those noted in
Section 2.c. Tenant shall indemnify and hold Landlord harmless from any cost,
expense or liability (including costs of suit and reasonable attorneys' fees)
for any compensation, commission or fees claimed by any other real estate broker
or agent in connection with this Lease or its negotiation by reason of any act
of Tenant.
29. NOTICES.
All notices, approvals and demands permitted or required to be given under this
Lease shall be in writing and deemed duly served or given if personally
delivered or sent by certified or registered U.S. mail, postage prepaid, and
addressed as follows: (a) if to Landlord, to Landlord's Mailing Address and to
the Building manager, and (b) if to Tenant, to Tenant's Mailing Address;
provided, however, notices to Tenant shall be deemed duly served or given if
delivered or mailed to Tenant at the Premises. Landlord and Tenant may from time
to time by notice to the other designate another place for receipt of future
notices.
30. GOVERNMENT ENERGY OR UTILITY CONTROLS.
In the event of imposition of federal, state or local government controls,
rules, regulations, or restrictions on the use or consumption of energy or other
utilities during the Term, both Landlord and Tenant shall be bound thereby. In
the event of a difference in interpretation by Landlord and Tenant of any such
controls, the interpretation of Landlord shall prevail, and Landlord shall have
the right to enforce compliance therewith, including the right of entry into the
Premises to effect compliance.
31. RELOCATION OF PREMISES.
Landlord shall have the right to relocate the Premises to another part of the
Building in accordance with the following:
(11)
34
a. The new premises shall be substantially the same in size, dimensions,
configuration, decor and nature as the Premises described in this Lease,
and if the relocation occurs after the Commencement Date, shall be placed
in that condition by Landlord at its cost.
b. Landlord shall give Tenant at least thirty (30) days written notice of
Landlord's intention to relocate the Premises.
c. As nearly as practicable, the physical relocation of the Premises shall
take place on a weekend and shall be completed before the following Monday.
If the physical relocation has not been completed in that time, Base Rent
shall ▇▇▇▇▇ in full from the time the physical relocation commences to the
time it is completed. Upon completion of such relocation, the new premises
shall become the "Premises" under this Lease.
d. All reasonable costs incurred by Tenant as a result of the relocation
shall be paid by Landlord.
e. If the new premises are smaller than the Premises as it existed before
the relocation, Base Rent shall be reduced proportionately.
f. The parties hereto shall immediately execute an amendment to this Lease
setting forth the relocation of the Premises and the reduction of Base
Rent, if any.
32. QUIET ENJOYMENT.
Tenant, upon paying the Rent and performing all of its obligations under this
Lease, shall peaceably and quietly enjoy the Premises, subject to the terms of
this Lease and to any mortgage, lease, or other agreement to which this Lease
may be subordinate.
33. OBSERVANCE OF LAW.
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, statute, ordinance or
governmental rule or regulation now in force or which may hereafter be enacted
or promulgated. Tenant shall, at its sole cost and expense, promptly comply with
all laws, statutes, ordinances and governmental rules, regulations or
requirements now in force or which may hereafter be in force, and with the
requirements of any board of fire insurance underwriters or other similar bodies
now or hereafter constituted, relating to, or affecting the condition, use of
occupancy of the Premises, excluding structural changes not related to or
affected by Tenant's improvement or acts. The judgment of any court of competent
jurisdiction or the admission of Tenant in any action against Tenant, whether
Landlord is a party thereto or not, that Tenant has violated any law, ordinance
or governmental rule, regulation or requirement, shall be conclusive of that
fact as between Landlord and Tenant.
34. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed by Landlord or Tenant
which is due to strikes, labor disputes, inability to obtain labor, materials,
equipment or reasonable substitutes therefor, acts of God, governmental
restrictions or regulations or controls, judicial orders, enemy or hostile
government actions, civil commotion, fire or other casualty, or other causes
beyond the reasonable control of the party obligated to perform hereunder, shall
excuse performance of the work by that party for a period equal to the duration
of that prevention, delay or stoppage. Nothing in this Article 34 shall excuse
or delay Tenant's obligation to pay Rent or other charges under this Lease.
35. CURING TENANT'S DEFAULTS.
If Tenant defaults in the performance of any of its obligations under this
Lease, Landlord may (but shall not be obligated to) without waiving such
default, perform the same for the account at the expense of Tenant. Tenant shall
pay Landlord all costs of such performance promptly upon receipt of a ▇▇▇▇
therefor.
36. SIGN CONTROL.
Tenant shall not affix, paint, erect or inscribe any sign, projection, awning,
signal or advertisement of any kind to any part of the Premises, Building or
Project, including without limitation, the inside or outside of windows or
doors, without the written consent of Landlord. Landlord shall have the right to
remove any signs or other matter, installed without Landlord's permission,
without being liable to Tenant by reason of such removal, and to charge the cost
of removal to Tenant as additional rent hereunder, payable within ten (10) days
of written demand by Landlord.
37. MISCELLANEOUS.
a. Accord and Satisfaction; Allocation of Payments. No payment by Tenant or
receipt by Landlord of a lesser amount than the Rent provided for in this Lease
shall be deemed to be other than on account of the earliest due Rent, nor shall
any endorsement or statement on any check or letter accompanying any check or
payment as Rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of the Rent or pursue any other remedy provided for in this Lease. In
connection with the foregoing, Landlord shall have the absolute right in its
sole discretion to apply any payment received from Tenant to any account or
other payment of Tenant then not current and due or delinquent.
b. Addenda. If any provision contained in an addendum to this Lease is
inconsistent with any other provision herein, the provision contained in the
addendum shall control, unless otherwise provided in the addendum.
c. Attorneys' Fees. If any action or proceeding is brought by either party
against the other pertaining to or arising out of this Lease, the finally
prevailing party shall be entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred on account of such action or proceeding.
d. Captions, Articles and Section Numbers. The captions appearing within the
body of this Lease have been inserted as a matter of convenience and for
reference only and in no way define, limit or enlarge the scope or meaning of
this Lease. All references to Article and Section numbers refer to Articles and
Sections in this Lease.
e. Changes Requested by Lender. Neither Landlord or Tenant shall unreasonably
withhold its consent to changes or amendments to this Lease requested by the
lender on Landlord's interest, so long as these changes do not alter the basic
business terms of this Lease or otherwise materially diminish any rights or
materially increase any obligations of the party from whom consent to such
change or amendment is requested.
f. Choices of Law. This Lease shall be construed and enforced in accordance with
the laws of the State.
g. Consent. Notwithstanding anything contained in this Lease to the contrary,
Tenant shall have no claim, and hereby waives the right to any claim against
Landlord for money damages by reason of any refusal, withholding or delaying by
Landlord of any consent, approval or statement of satisfaction, and in such
event, Tenant's only remedies therefor shall be an action for specific
performance, injunction or declaratory judgment to enforce any right to such
consent, etc.
(12)
35
h. Corporate Authority. If tenant is a corporation, each individual signing this
Lease on behalf of Tenant represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of the corporation, and that this Lease
is binding on Tenant in accordance with its terms. Tenant shall, at Landlord's
request, deliver a certified copy of a resolution of its board of directors
authorizing such execution.
i. Counterparts. This Lease may be executed in multiple counterparts, all of
which shall constitute one and the same Lease.
j. Execution of Lease; No Option. The submission of this Lease to Tenant shall
be for examination purposes only, and does not and shall not constitute a
reservation of or option for Tenant to lease, or otherwise create any interest
of Tenant in the Premises or any other premises within the Building or Project.
Execution of this Lease by Tenant and its return to Landlord shall not be
binding on Landlord notwithstanding any time interval, until Landlord has in
fact signed and delivered this Lease to Tenant.
k. Furnishing of Financial Statements; Tenant's Representations. In order to
induce Landlord to enter into this Lease Tenant agrees that it shall promptly
furnish Landlord, from time to time, upon Landlord's written request, with
financial statements reflecting Tenant's current financial condition. Tenant
represents and warrants that all financial statements, records and information
furnished by Tenant to Landlord in connection with this Lease are true, correct
and complete in all respects.
l. Further Assurances. The parties agree to promptly sign all documents
reasonably requested to give effect to the provisions of this Lease.
m. Mortgagee Protection. Tenant agrees to send by certified or registered mail
to any first mortgagee or first deed of trust beneficiary of Landlord whose
address has been furnished to Tenant, a copy of any notice of default served by
Tenant on Landlord. If Landlord fails to cure such default within the time
provided for in this Lease, such mortgagee or beneficiary shall have an
additional thirty (30) days to cure such default; provided that if such default
cannot reasonably be cured within that thirty (30) day period, then such
mortgagee or beneficiary shall have such additional time to cure the default as
is reasonably necessary under the circumstances.
n. Prior Agreements; Amendments. This Lease contains all of the agreements of
the parties with respect to any matter covered or mentioned in this Lease, and
no prior agreement or understanding pertaining to any such matter shall be
effective for any purpose. No provisions of this Lease may be amended or added
to except by an agreement in writing signed by the parties or their respective
successors in interest.
o. Recording. Tenant shall not record this Lease without the prior written
consent of Landlord. Tenant, upon the request of Landlord, shall execute and
acknowledge a "short form" memorandum of this Lease for recording purposes.
p. Severability. A final determination by a court of competent jurisdiction
that any provision of this Lease is invalid shall not affect the validity of
any other provision, and any provision so determined to be invalid shall, to
the extent possible, be construed to accomplish its intended effect.
q. Successors and Assigns. This Lease shall apply to and bind the heirs,
personal representatives, and permitted successors and assigns of the parties.
r. Time of the Essence. Time is of the essence of this Lease.
s. Waiver. No delay or omission in the exercise of any right or remedy of
Landlord upon any default by Tenant shall impair such right or remedy or be
construed as a waiver of such default.
t. Compliance. The parties hereto agree to comply with all applicable federal,
state and local laws, regulations, codes, ordinances and administrative orders
having jurisdiction over the parties, property or the subject matter of this
Agreement, including, but not limited to, the 1964 Civil Rights act and all
amendments thereto, the Foreign Investment In Real Property Tax Act, the
Comprehensive Environmental Response Compensation and Liability Act, and The
Americans With Disabilities Act.
The receipt and acceptance by Landlord of delinquent Rent shall not constitute
a waiver of any other default; it shall constitute only a waiver of timely
payment for the particular Rent payment involved.
No act or conduct of Landlord, including, without limitation, the acceptance of
keys to the Premises, shall constitute an acceptance of the surrender of the
Premises by Tenant before the expiration of the Term. Only a written notice
from Landlord to Tenant shall constitute acceptance of the surrender of the
Premises and accomplish a termination of the Lease.
Landlord's consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to waive or render unnecessary
Landlord's consent to or approval of any subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of the
Lease.
The parties hereto have executed this Lease as of the dates set forth below.
Date: Date: Feb 13 1995
----------------------------
Landlord: North Coast Business Park, Tenant: Interactive Telesis, Inc.
a California Limited Partnership
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇]
By: /s/ [Signature Illegible] ----------------------------
---------------------------- ▇▇▇ ▇▇▇▇▇▇▇
Title: President
Title: ----------------------------
----------------------------
Title: Property Manager By:
----------------------------
Title:
----------------------------
===============================================================================
CONSULT YOUR ADVISORS -- This document has been prepared for approval by your
attorney. No representation or recommendation is made by CB Commercial as to
the legal sufficiency or tax consequences of this document or the transaction
to which it relates. These are questions for your attorney.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other person,
with experience in evaluating the condition of the property, including the
possible presence of asbestos, hazardous materials and underground storage
tanks.
===============================================================================
(13)
36
ADDENDUM NUMBER ONE TO LEASE DATED FEBRUARY 13,1995, BY AND BETWEEN THE NORTH
COAST BUSINESS PARK, A CALIFORNIA LIMITED PARTNERSHIP, AS LANDLORD AND
INTERNATIONAL TELESIS, A BRITISH COLUMBIA COMPANY, AS TENANT.
--------------------------------------------------------------------------------
43. OPTIONS TO RENEW:
Provided that Tenant has not been in default of its Lease, Landlord
shall grant Tenant the option to renew the lease at the lease rate
outlined in the Base Rent Schedule below. Tenant shall give Landlord
three months prior written notice of his intention to exercise said
option.
44. BARE RENT SCHEDULE:
Tenant shall pay Landlord base rent according to the following schedule.
First Option: Months 13 - 24: $1,021.20 per month.
Base Rent includes all common area maintenance, insurance, management
fees, common area utilities and taxes. Utilities will be separately
metered and paid by Tenant. Janitorial services will be paid separately
by Tenant.
45. IMPROVEMENTS:
Tenant accepts the premises in an "as is" condition with the following
exceptions:
Suite to be painted, all carpets cleaned, ceiling tiles to be replaced,
leaks in roof/walls to be repaired.
46. ABATEMENT:
Rent for the months 2 and 3 of this Lease shall be $.70 per square foot
or $621.50 per month.
CONSULT YOUR ATTORNEY/ADVISOR - This document has been prepared for approval by
your attorney. No representation or recommendation is made by CB COMMERCIAL REAL
ESTATE GROUP, INC. or the agents or employees as to the legal sufficiency, legal
effect, or tax consequences of this document or the transaction to which it
relates. These are questions for your attorney.
In any real estate transaction it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other person
with experience in evaluating the condition of the property, including the
possible presence of asbestos, hazardous materials and underground storage
tanks.
37
EXHIBIT "A"
FLOOR PLAN
38
EXHIBIT B
SITE PLAN
39
EXHIBIT D
RULES AND REGULATIONS
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
without Lessor's prior written consent.
7. Lessee shall be responsible for the inappropriate use of any toilet rooms,
plumbing or other utilities. No foreign substance of any kind are to be inserted
therein.
8. Lessee shall not deface the walls, partitions or other surfaces of the
Premises or the 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, freight and equipment shall be moved into or out of the building
only with Lessor's knowledge and consent, and subject to such reasonable
limitations, techniques and timing, as may be designated by Lessor. Lessee shall
be responsible for any damage to the Premises, Building and Office Building
Project arising from any such activity.
11. Lessee shall not employ any service or contractor for services or work to be
performed in the Building, except as approved by Lessor.
12. Lessor reserves the right to close and lock the Building on Saturdays,
Sundays, and legal holidays. 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 replacing any keys that are lost.
14. No window coverings, shades or awnings shall be installed or used by Lessee.
15. No Lessee, employee or invitee shall go upon the roof of the Building.
16. Lessee shall not suffer or permit smoking or carrying of lighted cigars in
areas reasonably designated by Lessor or by applicable governmental agencies as
non-smoking areas.
40
EXHIBIT E
SIGN CRITERIA
NORTH COAST BUSINESS PARK
This criteria establish the uniform sign policies for North Coast Business Park.
This criteria has been established for the purpose of maintaining the overall
signage appearance of the project. Conformance to this sign criteria will be
strictly enforced by Lessor. Any sign installed that does not conform to this
sign criteria will be brought into conformity at the expense of Lessee or
removed.
A. GENERAL REQUIREMENTS
1. Sample drawings of the size and shape of approved signage is
shown on the attached sheet.
2. Lessor shall approve all signage prior to the fabrication of the
sign.
3. Lessor shall direct the placement of all Lessee signs and the
method of attachment to the building.
4. Lessee to be limited to identity of the company name (buildings
1, 3 & 7 if plexiglas can sign or channel letters are used) and
secondary description copy (Logos optional). Building 1
plexiglas can sign or channel letter signage is limited to area
over front entry facing parking lot.
5. Lessee shall be responsible for the fulfillment of all
requirements for this criteria.
B. GENERAL SPECIFICATIONS
1. Lessee Building Identification (Bldg. 1-3-7 Only)
A. Plexiglas Can Sign
1. Lessee is allowed one (1) square foot of signage
for each linear foot of suite frontage (sign
length limitations apply).
2. Signs shall conform to three sizes (3' x 8'),
(3' x 10') or (3' x 12'). Actual size to be
determined by front footage.
3. Can returns shall be dark grey in color. All
other colors shall be approved by Lessor.
4. All signs shall conform to City of Encinitas
specifications through a sign and building
permit.
5. Lessee must submit sign criteria for Lessor's
approval prior to fabrication of sign.
Non-conforming signage will be brought into
conformity at the expense of Lessee or removed.
6. Lessee shall be responsible to maintain signage
in a first class condition at Lessee's expense.
7. Plexiglas can signage shall be fabricated,
permitted and installed at Lessee's expense.
Installation shall be strictly supervised by
Lessor. Damage to building, premises or common
areas resulting from sign installation,
maintenance or removal shall be repaired by
Lessor at Lessee's expense.
41
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
commercial 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 a theft or vandalism and agrees to keep its
Premises locked as may be required.
23. Lessor reserves the right to make such other reasonable rules and
regulations as it may from time to time deem necessary for the appropriate
operation and safety of the Office Building Project and its occupants. Lessee
agrees to abide by these and such rules and regulations.
PARKING RULES
1. Parking areas shall be used only for parking by vehicles no longer than full
size, passenger automobiles herein called "Permitted Size Vehicles." Vehicles
other than Permitted Size Vehicles are referred to herein 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
invites to be loaded, unloaded, or parked in areas other than those designated
by Lessor for such activities.
3. Users of the parking area will obey all posted signs and park only in areas
designated for vehicle parking.
4. 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 are risks
assumed by the party using the parking area.
5. The maintenance, washing, waxing or cleaning of vehicles in the parking lot
or Common Areas is prohibited.
6. Lessee shall not permit or allow any vehicles that belong to or are
controlled by Lessee or Lessee's employees, suppliers, shippers, customers, or
invites to remain parked in the parking lot or Common Area for more than 24
consecutive hours.
7. Lessee shall be responsible for seeing that all of its employees, agents and
invites comply with the applicable parking rules, regulations, laws and
agreements.
8. Lessor reserves the right to modify these rules and/or adopt such other
reasonable rules and regulations as it may deem necessary for the proper
operation of the parking area.
9. Such parking use as is herein provided in intended merely as a license only
and no bailment is intended or shall be created hereby.
42
SIGN CRITERIA
NORTH COAST BUSINESS PARK
B. Internally Illuminated Channel Letter ▇▇▇▇. ▇-▇-▇ Only
1. Lessee is allowed one (1) square foot of signage for each linear
foot of suite frontage.
2. Lessee must submit sign criteria for Lessor's approval prior to
fabrication of sign. Non-conforming signage will be brought into
conformity at the expense of Lessee or removed.
3. Lessee shall be responsible to maintain signage in a first class
condition at Lessee's expense.
4. Channel letter signs shall be fabricated, permitted and
installed at Lessee's expense. Installation shall be strictly
supervised by Lessor. Damage to building, premises or common
areas resulting from sign installation, maintenance or removal
shall be repaired by Lessor at Lessee's expense.
2. Lessee Entry Identification
A. 2' X 4' Monolith Sign (Aluminum box).
B. All copy to be white optima bold on a green background to match
existing.
C. Installed at planter area in front of suite.
D. Monolith signage shall be installed by Lessor at Lessee's expense.
3. Lessee Window Identification
A. Type face to be Helvetica Style. 1/2" height - Upper and lower case.
B. All white in color.
C. Mounted flush R/L on either side of door.
D. No more than four (4) lines of copy.
E. Window signage shall be installed by Lessor at Lessee's expense.
Page 2 of 3
43
GENERAL SIGN CRITERIA
TYPICAL WINDOW.
213 WHITE VINYL - UPPER/LOWER CASE
HELVETICA STYLE-1 1/2" HEIGHT.
MOUNTED JUSTIFIED (RIGHT OR LEFT)
NEXT TO FRONT ENTRY DOOR.
NORTH COAST
MANAGEMENT ALL BUILDINGS
NORHT COAST
MANAGEMENT
TYPICAL PLEXIGLAS SIGN
CAN WITH PLEX FACE [OR]
INDIVIDUAL CHANNEL LETTERS.
NOT TO EXCEED 36 SQ. FT
NORTH COAST MANAGEMENT
WILL APPROVE ALL COLORS
AND DESIGNS.
(LOGOS ARE OPTIONAL)
BLDGS 1, 3 & 7 ONLY
NORTH COAST
MANAGEMENT
213 TYPICAL MONOLITHE SIGN
2' X 4' ALUMINUM BOX
GREEN COPY AREA WITH
WHITE VINYL LETTERS
(OPTIMA BOLD STYLE)
ALL BLDGS
44
EXHIBIT
GUARANTEE OF LEASE
WHEREAS, a certain Lease of even date herewith has been, or will be,
executed by and between NORTH COAST BUSINESS PARK (therein and herein referred
to as "Landlord"), and INTERACTIVE TELESIS, INC. (therein and herein referred to
as "Tenant"), covering certain premises in the City of Encinitas, County of San
Diego, State of California; and
WHEREAS, the Landlord under said Lease requires, as a condition to its
execution of said Lease, that the undersigned guarantee the full performance of
the obligations of Tenant under said Lease; and
WHEREAS, the undersigned is desirous that Landlord enter into said Lease
with Tenant,
NOW, THEREFORE, In consideration of the execution of said Lease by
Landlord, the undersigned hereby unconditionally guarantees the prompt and full
performance of each and all of the terms, covenants and conditions of said Lease
to be kept and performed by said Tenant, including the payment of all rentals
and other charges to accrue thereunder. The undersigned further agrees as
follows:
1. That this covenant and agreement on its part shall continue in favor
of the Landlord, notwithstanding any extension, modification or alteration of
said Lease entered into by and between the parties thereto, or their successors
or assigns, or notwithstanding any assignment of said Lease, with or without the
consent of the Landlord, or the release of the Tenant, or the forfeiture or
termination of the Lease by Landlord, as provided for therein, and no extension,
modification, alteration or assignment of the above-referred to Lease shall, in
any manner, release or discharge the undersigned, and it does hereby consent
thereto.
2. This Guarantee will continue unchanged by any bankruptcy,
reorganization or insolvency of the Tenant or any successor or assignee thereof,
or by any disaffirmance or abandonment by a trustee of Tenant.
3. Landlord may, without notice, assign this Guarantee of Lease in
whole or in part, and no assignment or transfer of the Lease shall operate to
extinguish or diminish the liability of the undersigned hereunder.
4. The liability of the undersigned under this Guarantee of Lease shall
be primary and that in any right of action which shall accrue to Landlord under
the Lease, the Landlord may, at its option, proceed against the undersigned
without having commenced any action, or having obtained any judgment against the
Tenant or any co-guarantor.
5. The undersigned waives the right to plead any and all statutes of
limitations as a defense to this guarantee and to any obligation or liability
hereby guaranteed, and agrees that any partial payments by or on behalf of the
Tenant on any obligation or liability hereby guaranteed shall, as of the time
each such payment is made, stop the running of the time within which an action
may be commenced upon this guarantee, and shall constitute a further waiver by
the undersigned of the right to plead any and all statutes of limitations as a
defense to this guarantee.
6. All debts and liabilities, present and future, of the Tenant to the
undersigned, or any of them, ire hereby postponed to the liabilities of the
Tenant to the Landlord, and all monies received by any of the undersigned or
their representatives, successors or assigns thereon, shall be received as
trustees for the Landlord and shall be paid over to the Landlord. The
undersigned, and each of them, further agree, upon any liquidation or
distribution of the assets of the Tenant, to assign to the Landlord, upon its
request, all claims on account of all such debts and liabilities to the end that
the Landlord shall receive all payments on such debts and liabilities until
payment in full of all liabilities and obligations of the Tenant to the
Landlord. This Agreement shall constitute such assignment in the event the
undersigned shall fall or refuse to execute and deliver such other and further
assignment of such claims as the Landlord may request.
Exhibit __, Page 1
45
7. Where the Tenant is a corporation, partnership or other association,
or a receiver, trustee or other fiduciary, the Landlord is not to be concerned
to see or inquire into the powers of the Tenant or its directors, officers,
partners or associates, or other agents acting or purporting to act on its
behalf, the undersigned hereby representing that such powers exist and that the
representatives of the Tenant entering into the Lease in the professed exercise
of such power shall be deemed to form part of the obligations of the Tenant
guaranteed, even though the entering into of said Lease be in excess of the
powers of the Tenant or the directors, partners, officers, associates or other
agents thereof.
8. This Guarantee shall inure to the benefit of and bind the heirs,
administrators, executors, successors and assigns of the Landlord and each of
the undersigned, and shall be construed as the joint and several obligation of
each of the undersigned where there is more than one. This Guarantee shall be
construed in accordance with the laws of the State of California. Notice of
acceptance of this Guarantee is hereby waived. The use of the singular herein
shall include the plural.
9. To pay Landlord's reasonable attorneys' fees and all costs and other
expenses incurred in any collection or attempted collection or in any
negotiations relative to the obligations hereby guaranteed or enforcing this
Guarantee of Lease against the undersigned, individually and jointly.
10. That it does hereby waive notice of any demand by the Landlord, as
well as any notice of default in the payment of rent or any other amounts
contained or reserved in the Lease.
IN WITNESS WHEREOF, the undersigned has cause this Guarantee to be
executed on the date first above written.
/s/ ▇▇▇ ▇▇▇▇▇▇▇
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Guarantor ▇▇▇ ▇▇▇▇▇▇▇
1109 Sycamore View Dr.
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Guarantor
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Address
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Exhibit __, Page 2