EXHIBIT 10.26
INDUSTRIAL LEASE
-GROSS-
1. FUNDAMENTAL LEASE PROVISIONS
1.1 PARTIES. This Lease Agreement, dated for reference purposes only, May
4, 1999 is made by and between H.S.P., A California Limited Partnership, ▇▇▇▇▇▇
Street Project (herein called "Landlord") and ▇▇▇▇▇▇.▇▇▇ (herein called
"Tenant").
1.2 PREMISES. That certain real property situated in the city of
Emeryville, County of Alameda, State of California, commonly known as ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ and described as 6479 rentable and 6084 useable square
feet of office space which is approximately 3.4081% of the total square footage
of the complex of which the Premises are a part. (Exhibit A)
1.3 TERM. The term of this Lease shall be for ___ Three (3) ___ years,
commencing on July 1, 1999 ____________________________________________________,
and ending on __ June 30, 2002 ____________________________________________.
1.4 OPTION TO RENEW. Lease may be extended for ___ Three (3) years __,
commencing on July 1, 2002 ____________________________________________________,
and ending on ___ June 30, 2005 _______________________________________________.
Notice of intent to extend terms must be delivered to Landlord prior to January
1, 2002.
1.5 USE. The Premises shall be used and occupied only for General office,
software development, hardware maintenance and related activities.
1.6 RENT. Monthly rental shall be $_10,366.00 ___________________________.
1.7 RENT INCREASES. Rent increases for the term and option shall be as
follows: Effective July 1, 2000 rent shall increase to $10,690.00. Effective
July 1, 2001 rent shall increase to $11,014.00.
Effective on the Anniversary Date of each year of the Option Period, the
rent shall increase upwards in accordance with the Consumer Price Index, San
Francisco-Oakland-San ▇▇▇▇, All Urban Consumers, All Items (CPI) no less than
three (3%) percent and no more than seven (7%) percent per annum.
1.8 SECURITY DEPOSIT. $15,550.00 _________________________________________.
1.9 PARKING. Tenant shall have Twelve (12) reserved & designated parking
spaces.
1.10 BASE YEAR FOR PROPERTY TAXES & INSURANCE. __1999/00 _______________.
1.11 BROKERS. __AEGIS Reality - ▇▇▇▇ ▇▇▇▇▇▇▇▇ __________________________.
1.12 NOTICES. All notices shall be mailed or served personally to the
following addresses:
To Landlord at: ▇▇▇▇▇▇ Street Project
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇-▇▇▇▇
To Tenant at: ▇▇▇▇▇▇.▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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TABLE OF CONTENTS
Paragraph 1 Fundamental Lease Provisions
Paragraph 2 Premises
▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ 4 Rent
Paragraph 5 Security Deposit
Paragraph 6 Use
Paragraph 7 Maintenance, Repairs and Alterations
Paragraph 8 Insurance Indemnity
Paragraph 9 Damage or Destruction
Paragraph 10 Real Property Taxes
Paragraph 11 Common Areas
Paragraph 12 Utilities and Services
Paragraph 13 Assignment and Subletting
Paragraph 14 Defaults: Remedies
Paragraph 15 Condemnation
Paragraph 16 General Provisions
Paragraph 17 Performance Bond
Paragraph 18 Brokers
Paragraph 19 Notices
EXHIBITS
Exhibit A Premises
Exhibit B Improvements
Exhibit C Disclosure Addendum
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2. PREMISES.
2.1 Premises. For and in consideration of the rent and the convenents and
agreements set forth in this Lease to be kept and performed by Tenant, Landlord
hereby leases to Tenant and Tenant leases from Landlord the Premises described
in Paragraph 1.2 hereof for the term, at the rent and subject to and upon all of
the terms, covenants, and agreements set forth herein.
2.2 Improvements & Alterations Prior to Occupancy. All obligations of
Landlord and Tenant to perform work, and supply labor and materials to prepare
the Premises for occupancy as shown in Exhibit A are set forth below, or in
Exhibit B. Both Landlord and Tenant shall expend all funds and do all acts
required of them and shall have the work performed promptly and diligently and
in a workmanlike manner.
2.3 Square Footage. Tenant's percent of the total square footage of the
Complex of which the Premises are a part is subject to change as the total
square footage of the Complex changes.
3. TERM
3.1 Term. The term of this Lease shall continue during the Lease term
specified in Paragraph 1.3 hereof, unless sooner terminated pursuant to any
provision hereof.
3.2 Delay in Commencement. Notwithstanding said commencement date, if for
any reason Landlord cannot deliver possession of the Premises to Tenant on said
date, Landlord shall not be subject to any liability thereof, nor shall such
failure affect the validity of this Lease or the obligations of Tenant hereunder
or extend the term hereof. In such case Tenant shall not be obligated to pay
rent until possession of the Premises is tendered to Tenant. If Landlord shall
not have delivered possession of the Premises within ninety (90) days from said
commencement date, Tenant may, at Tenant's option, by notice in writing to
Landlord within ten (10) days thereafter, cancel this Lease. If Landlord shall
not have delivered possession of the Premises within one (1) year from said
commencement date, Landlord may, by notice in writing to the Tenant within ten
(10) days thereafter, cancel this Lease. If either party cancels as hereinabove
provided, Landlord shall return any monies previously deposited by Tenant within
fifteen (15) days without payment of interest or other increment for its use,
and the parties shall be discharged from all obligations hereinbefore.
3.3 Early Possession. In the event that Landlord shall permit Tenant to
occupy Premises prior to the commencement date of the term, such occupancy shall
be subject to all of the provisions of this Lease. Said early possession shall
not advance the termination date of this Lease.
3.4 Delivery of Possession. Tenant shall be deemed to have taken possession
of the Premises, if when necessary, Tenant has provided Landlord with a
Certificate of Occupancy granted by the proper government agency, and when
either of the following occurs:
(a) Landlord, Landlord's agent or property manager delivers possession
of the Premises to Tenant, or Tenant's Agent.
(b) Landlord, Landlord's agent or property manager gives notice to
Tenant or Tenant's Agent that the Premises are ready for Tenant to take
possession.
3.5 Option to Renew. Tenant shall have the right to extend the terms of
this Lease for a period specified in Paragraph 1.4, if Tenant shall not be in
default, by giving Landlord written notice prior to date specified in Paragraph
1.4. Notice shall be hand delivered by Tenant to management office or mailed,
postage prepaid, by certified mail to the address specified in Paragraph 1.12.
Upon receipt of such notice by Landlord within specified time, this Lease shall
be considered extended without the necessity for executing any further
instrument, upon same terms, conditions, covenants, and agreements as herein
contained. Once exercised, the Tenant shall not have the right to revoke his
election to exercise Option to Renew. In the event that the Option is not
exercised in writing within specified time, the Option shall expire, and the
Tenant shall not have the right to renew this Lease. Landlord shall have no
obligation to notify Tenant of Option to Renew.
4. INITIAL RENT. Tenant shall pay to Landlord as initial rent for the
Premises the sum set forth in Paragraph 1.6, in advance, on the FIRST day of
each month of the term hereof. Rent for any period during the term hereof, which
is for less than one month, shall be a prorate of the monthly installment based
upon a thirty (30) day month. Rent shall be payable without notice or demand and
without any deduction, offset, or abatement in lawful money of the United States
of America to Landlord at the address stated in Paragraph 1.12 or to such other
persona or at such other place as Landlord may designate in writing.
5. SECURITY DEPOSIT. Tenant shall deposit with Landlord prior to occupancy the
sum specified in Paragraph 1.8 as security for Tenant's faithful performance of
Tenant's obligations hereunder. If Tenant fails to pay rent or other charges due
hereunder, or otherwise defaults with respect to any provision of this Lease,
Landlord may use, apply or retain all or any portion of said deposit for the
payment of any rent or other charge in default, or for the payment of any other
sum to which Landlord may become obligated by reason of Tenant's default, or to
compensate Landlord for any loss or damage which Landlord may suffer hereby. If
Landlord so uses or applies all or any portion of said deposit, Tenant shall
within ten (10) days after written demand therefor deposit cash with Landlord in
an amount sufficient to restore said deposit to the full amount hereinabove
stated and Tenant's failure to do so shall be a breach of this Lease, and
Landlord may at his option terminate this Lease. Landlord shall not be required
to keep said deposit separate from its general accounts. If Tenant performs all
of Tenant's obligations hereunder, said deposit or so much thereof as had not
theretofore been applied by Landlord, shall be returned, without payment of
interest or other increment for its use, to Tenant (or, at Landlord's option, to
the last assignee, if any, of Tenant's interest hereunder) within thirty (30)
days after the expiration of the term hereof, or after Tenant has vacated the
Premises, whichever is later.
6. USE
6.1 Use. The Premises shall be used and occupied only as specified in
Paragraph 1.5 and for no other purposes. Under no circumstances shall Tenant or
Tenant's employees, agents, or invitees or anyone else occupy the Premises for
residential purposes. Tenant shall have unrestricted access of premises 24 hours
a day, seven days a week.
6.2 Compliance with Law. Tenant shall, at Tenant's expense, comply
promptly with all applicable statutes,
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ordinances, rules regulations, orders and requirement in effect during the term
or any part of the term hereof regulating the use by Tenant of the Premises.
Tenant shall not use or permit the use of the Premises in any manner that will
tend to create waste, or a nuisance, or, if there shall be more than one tenant
of the Complex containing the Premises, which shall tend to unreasonably disturb
such other tenants.
6.3 Condition of Premises. Tenant hereby accepts the Premises in their
condition existing as of the date of possession. Tenant's taking possession of
the Premises shall constitute Tenant's acknowledgment that the Premises are in
expected condition. Tenant acknowledges that neither Landlord, Landlord's agent
or Tenant's agent has made any representation or warranty as to the suitability
of the Premises for the conduct of Tenant's business.
6.4 Insurance Cancellation. Notwithstanding the provisions of Paragraph 6.1
hereinabove, no use shall be made or permitted to be made of the Premises nor
acts done which will cause the cancellation of any insurance policy covering
said Premises or the Complex of which the Premises may be a part. If Tenant's
use of the Premises causes an increase in said insurance rates, Tenant shall pay
any such increase as additional rent, together with Tenant's next rental
installment, after receipt by Tenant of a copy of the insurance costs statement
or other satisfactory evidence of the amount due.
6.5 Landlord's Rules and Regulations for the use of the Premises. Tenant
shall faithfully observe and comply with the rules and regulations that Landlord
shall from time to time promulgate for the use of the Premises. If Tenant,
Tenant's agents, employees, customers or invitees, fail to comply with said
rules and regulations, Landlord shall have the right to charge Tenant a fine for
nonperformance of the said rules and regulations. All fines shall be due and
payable, as additional rent, to Landlord together with Tenant's next rental
installment after Tenant has received notice from Landlord of violation and fine
amount. A copy of current rules and regulations is attached hereto. Landlord
reserves the right from time to time to make all reasonable modifications to
said rules and regulations. All alterations and/or additions to the rules and
regulations shall be binding upon Tenant upon delivery of a copy of them to
Tenant. Landlord shall not be responsible to Tenant for the nonperformance of
any of the said rules and regulations by any other tenants, their agents,
employees, customers, or invitees. Landlord shall be fair and reasonable.
7. MAINTENANCE, REPAIRS & ALTERATIONS
7.1 Landlord's Obligations. Subject to the provisions of Paragraph 9 and
except for damage caused by any negligent or intentional act or omission of
Tenant, Tenant's agent, employees, or invitees, Landlord at Landlord's expense
shall keep in good order, condition and repair the foundations, exterior ▇▇▇▇▇
and windows, exterior roof, skylights, and heating and air conditioning of the
Premises. Landlord shall not, however, be obligated to paint such exterior, nor
shall Landlord be required to maintain the interior surface of exterior walls,
windows, doors or plate glass damaged by vandalism. Landlord shall have no
obligations to make repairs under this Paragraph 7.1 until a reasonable time
after receipt of written notice of the need for such repairs.
7.2 Tenant's Obligations.
(a) Subject to the provisions of Paragraph 7.1 and ▇▇▇▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇, at Tenant's expense, shall keep in good order, condition and repair the
Premises and every part thereof including, without limiting the generality of
the foregoing, all lighting facilities, electrical, plumbing, equipment,
fixtures, interior walls, ceilings. Windows, doors, and plate glass, located
within the Premises, or any wall of the Premises are also the responsibility of
the Tenant to repair or replace if damaged by negligence, whether by Tenant,
Tenant's agent, employees or invitees.
C.K. (b) Tenant acknowledges Tenant's responsibility to keep interior
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paint in good and chip-free condition.
(c) If Tenant fails to perform Tenant's obligations under this
▇▇▇▇▇▇▇▇▇ ▇.▇, ▇▇▇▇▇▇▇▇ may at Landlord's option enter upon the Premises after
ten (10) days prior written notice to Tenant and put the same in good order,
condition and repair at Tenant's expense. The cost of any such repairs shall be
due and payable, as additional rent, to Landlord together with Tenant's rental
installment after receipt of statement of charges from Landlord.
(d) On the last day of the term hereof, or on any sooner termination,
Tenant shall surrender the Premises to Landlord in good condition, broom clean,
ordinary wear and tear excepted. Tenant shall repair any damage to the Premises
occasioned by its use thereof or by the removal of its trade fixtures,
furnishings and equipment pursuant to Paragraph 7.3 (c), which repair shall
include but not be limited to the patching and filling of holes in walls,
ceilings and floors, repairs of structural damage, and cleaning and repairing of
windows and skylights.
7.3 Alterations and Additions.
(a) Tenant shall not, without Landlord's prior written consent, make
any alterations, improvements or additions, in, on or about the Premises. As a
condition to giving such consent, Landlord may require that Tenant agree to
remove any such alterations, improvements, additions or utility installations at
the expiration of the term and to restore the Premises to their prior condition.
After obtaining Landlord's consent, and before commencing construction, Tenant
must acquire all required City Building Permits. All construction shall be done
to State and Local Building Codes, and pass inspection by the City Building
Department.
(b) Before commencing any work relating to alterations, additions and
improvements affecting the Premises, Tenant shall notify Landlord, in writing,
of the expected date of commencement thereof, and provide Landlord with the
performance bond required by Paragraph 17. Landlord shall then have the right at
any time and from time to time to post and maintain on the Premises such notices
as Landlord reasonably deems necessary to protect the Premises and Landlord from
mechanics' liens, materialmens' lien or any other liens. In any event, Tenant
shall pay, When due, all claims for labor or materials furnished to or for
Tenant at or for use in the Premises. Tenant shall not permit any mechanics'
lien, or materialmens' lien to be levied against the Premises for any labor or
material furnished to Tenant or claimed to have been furnished to Tenant or to
Tenant's agents or contractors in connection with work of any character
performed or claimed to have been performed on the Premises at the direction of
Tenant.
(c) Unless Landlord requires their removal, as set forth in Paragraph
7.3 (a), all alterations, improvements or additions which may be made on the
Premises shall become the property of Landlord and remain upon and be
surrendered with the Premises at the expiration of the term. Notwithstanding the
provisions of this Paragraph 7.3 (c), Tenant's machinery, equipment, and trade
fixtures, other than that which is affixed to the Premises so that it cannot be
removed without material damage to the Premises, shall remain the property of
Tenant and may be removed by Tenant subject to the provisions of Paragraph 7.2
(c).
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7.4 Signs & Window Coverings. All sign and window coverings visible from
the common areas or public areas shall be approved by the Landlord prior to any
installation. If Landlord institutes a common system of signs or window
coverings, the signs or window coverings that tenant installs shall conform to
that system, and Tenant shall, at Landlord's cost and expense, allow the
replacement of any signs or window covering previously installed, even though
they may have been approved previously by Landlord. Upon termination of this
Lease Tenant shall remove, at its cost, all signs and window coverings of which
the removal is required by Landlord.
8. INSURANCE INDEMNITY
8.1 Tenant's Obligation. Tenant shall, at Tenant's expense, obtain and
keep in force during the term of this Lease, a policy of comprehensive and
public liability insurance insuring Landlord and Tenant against any liability
arising out of the ownership, use, occupancy or maintenance of the Premises and
all areas appurtenant thereto. Such insurance shall be in an amount of not less
than $600,000 for injury to or death of one person in any one accident or
occurrence, and in an amount of not less than $1,000,000 for injury to or death
of more than one person in any one accident or occurrence. Such insurance shall
further insure Landlord and Tenant against liability for property damage of at
least $50,000. The limits of said insurance shall not, however, limit the
liability of Tenant hereunder. In the event that the Premises constitute a part
of a larger property, said insurance shall have a Landlord's Protective
Liability endorsement attached thereto. If Tenant shall fail to procure and
maintain said insurance, Landlord may, but shall not be required to, procure and
maintain the same, but at the expense of Tenant. The cost of said insurance
shall be due and payable, as additional rent, together with Tenant's next rental
installment after receipt by Tenant of a copy of the insurance costs statement
or other satisfactory evidence of the amount due.
8.2 Landlord's Obligation. Landlord may obtain and keep in force during
the term of this Lease a policy or policies of insurance covering loss or damage
to the Premises, in the amount of the full replacement value thereof, providing
protection against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, and special extended perils
(all risk), and Liability. After the first year of this Lease, the Tenant shall
pay during the remaining term hereof, as additional rent, a proportionate share
of any increase in insurance costs over base year specified in Paragraph 1.10,
whether such increase shall be the result of the nature of Tenant's Occupancy,
any act or omission of Tenant, requirements of the holder of a mortgage or deed
of trust covering the Premises, or increased valuation of the Premises. After
receipt by Tenant of a copy of the insurance costs statement or other
satisfactory evidence of the amount due, Tenant shall pay any such increase in
insurance costs to Landlord together with Tenant's next rental installment, or
at Landlord's option twelve (12) monthly installments. Tenant's proportionate
share of the increase shall be the percentage of the total square footage of the
Complex as set forth in Paragraph 1.2. If an insurance cost increase comes
before the end of the first year of this Lease or, if the term of this Lease
shall not expire concurrently with the expiration of the period covered by such
insurance, Tenant shall pay a prorated portion of increase. The proceeds of any
such insurance shall be paid to Landlord.
8.3 Insurance policies. Tenant shall deliver to Landlord, prior to
possession, copies of policies of liability insurance required under Paragraph
8.1 or certificates evidencing the existence and amounts of such insurance with
loss payable clauses satisfactory to Landlord. No such policy shall be
cancelable or subject to reduction of coverage or other modifications except
after ten (10) days prior written notice to Landlord. Tenant shall, within, ten
(10) days prior to the expiration of such policies furnish Landlord with
renewals thereof, or Landlord may order such insurance and charge the cost to
Tenant, as additional rent, which amount shall be payable by Tenant together
with Tenant's next rental installment after receipt by Tenant of copy of the
insurance costs statement or other satisfactory evidence of the amount due.
Tenant shall not do or permit to be done anything which shall invalidate the
insurance policies referred to in Paragraph 8.2.
8.4 Waiver of Subrogation. Tenant and Landlord each waives any and all
rights of recovery against the other, or against the officers, employees, agents
and representatives of the other, for loss of or damage to such waiving party or
its property or the property of others under its control, where such loss or
damage is insured against under any insurance policy in force at the time of
such loss or damage. Tenant and Landlord shall upon obtaining the policies of
insurance required hereunder, give notice to the insurance carriers that the
foregoing mutual waiver of subrogation is contained in this Lease.
8.5 Hold Harmless. Tenant shall indemnify, defend and hold Landlord
harmless from any and all claims arising from Tenant's use of the Premises or
from the conduct of its business or from any activity, work or things which may
be permitted or suffered by Tenant in or about the Premises. Tenant shall
further indemnify, defend and hold Landlord harmless from and against any and
all claims arising from any breach or default in the performance of any
obligation on Tenant's part to be performed under the provisions of this Lease
or arising from any negligence of Tenant or any of its agents, contractors,
employees or invitees, and from any and all costs, attorneys' fees, expenses and
liabilities incurred in the defense of any such claim or any action or
proceeding brought thereon. Tenant hereby assumes all risk of damage to property
or injury to persons in or about the Premises from any cause, and Tenant hereby
Waives all claims in respect thereof against Landlord, excepting where said
damages arises out of negligence of Landlord.
8.6 Exemption of Landlord from Liability. Tenant hereby agrees that
Landlord shall not be liable for injury to Tenant's business or any loss of
income therefrom or for damage to the goods, wares, merchandise or other
property of Tenant, Tenant's employees, invitees, customers or any other person
in or about the Premises, nor, unless through its negligence shall Landlord be
liable for injury to the person of Tenant, Tenant's employees, agents or
contractors and invitees, whether such damage or injury is caused by or results
from fire, steam, electricity, gas, water or rain or from the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures or from any other causes whether the said
damage or injury results from conditions arising upon the Premises or upon other
portions of the building of which the Premises are a part or from other sources
or places, and regardless of whether the cause of such damage or injury or the
means of repairing the same is inaccessible to Landlord or Tenant. Landlord
shall not be liable for any damages arising from any act or neglect of any other
tenant their employees, agents, contractors or invitees, if any, of the building
in which the Premises are located.
9. DAMAGE OR DESTRUCTION
9.1 Partial Damage - Insured. Subject to the provisions of Paragraph 9.4,
if the Premises are damaged and such damage was caused by a casualty covered
under any insurance policy that may be maintained pursuant to Paragraph 8.2.
Landlord shall, at Landlord's expense, repair such damage as soon as reasonably
possible and this Lease shall continue in full force and effect.
9.2 Partial Damage - Uninsured. In the event the Premises are damaged by a
casualty which is not covered by insurance carried by Landlord, then Landlord
shall restore same, except if the damage or destruction is to an extent greater
than ten (10%) per cent of the then replacement cost of improvements on the
Premises (exclusive of Tenant's trade fixtures and equipment and exclusive of
foundation), then Landlord may elect not to restore and to terminate this Lease.
Landlord
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must give Tenant written notice of its election not to restore within thirty 30
days from the date of damage and, if not given, Landlord shall he deemed to have
elected to restore and in such event shall commence restoration of damage as
soon as reasonably possible. In the event Landlord elects to give such notice of
Landlord's Intention to cancel and terminate this Lease, Tenant shall have the
right within ten (10) days after the receipt of such notice to give written
notice to Landlord of Tenant's intention to repair such damage at Tenant's
expense, without reimbursement from Landlord or abatement of rent, in which
event this Lease shall continue in full force and effect, and Tenant shall
provide Landlord with the performance bond required by Paragraph 17, and proceed
to make such repairs as soon as reasonably possible. If Tenant does not give
such notice within ten (10) day period, this Lease shall be canceled and
terminated as of the date of the occurrence of such damage.
9.3 Abatement of Rent.
(a) If the Premises are partially destroyed or damaged and Landlord
repairs or restores them pursuant to the provisions of this Paragraph 9, the
rent payable hereunder shall be abated for the period during which repair or
restoration of such damage, continues in proportion to the degree to Which
Tenant's reasonable use of the Premises is impaired, Tenant shall continue to
pay to Landlord the total current monthly rent for the Premises when due while
repairs or restoration are in progress. Within ten (10) days after current rent
payment is made to Landlord, Landlord shall then pay to Tenant any rent
abatement based on an assessment of the degree to which Tenant's use of the
Premises has been impaired for the prior month. Except for abatement of rent, if
any, Tenant shall have no claim against Landlord for any damage suffered by
reason of any such damage, destruction, repair or restoration.
(b) If Landlord is obligated to repair or restore the Premises under
the provisions of this Paragraph 9 and shall not commence such repair or
restoration within sixty (60) days after such obligations accrue, Tenant may at
Tenant's option cancel and terminate this Lease by giving Landlord written
notice of Tenant's election to do so at any time prior to the commencement of
such repair or restoration. In such event, this Lease shall terminate as of the
date of such notice. Any abatement of rent shall be computed as provided in
Paragraph 9.3 (a).
9.4 Total Destruction. If at any time during the term hereof the Premises
are totally destroyed from any cause whether or not covered by the insurance
that may be maintained by Landlord pursuant to Paragraph 8.3 this Lease shall
automatically terminate as of the date of such destruction.
9.5 Damage Near End of Term. If the Premises are partially destroyed during
the last six (6) months of the term of this Lease, Landlord may, at Landlord's
option, cancel and terminate this Lease as of the date of occurrence of such
damage by giving written notice to Tenant of Landlord's election to do so within
thirty (30) days after the date of occurrence of such damage.
9.6 Restoration. Landlord's obligation to restore shall not include the
restoration or replacement of Tenant's trade fixtures, equipment, merchandise or
any improvements or alterations made by Tenant to the Premises.
9.7 Prorations. Upon termination of this Lease pursuant to this Paragraph
9, an equitable prorate adjustment of rent based upon a thirty (30) day month
shall be made. Landlord shall, in addition, return to Tenant so much of Tenant's
security deposit as has not therefore been applied by Landlord.
10. REAL PROPERTY TAXES
10.1 Payment of Tax Increase. Landlord shall pay all real property taxes
applicable to the Premises; provided, however, that Tenant shall pay, as
additional rent, the amount, if any, by which real property taxes applicable to
the Premises increase over the base year specified in Paragraph 1.10. Such
payment shall be made by Tenant together with Tenant's next rental installment
or at Landlord's option twelve (12) monthly installments, after receipt of
Landlord's statement setting forth the amount of such increase and the
computation thereof. If the Tax increase comes before the end of the first year
of this Lease, or if the term of this lease shall not expire concurrently with
the expiration of the fiscal tax year, Tenant shall pay a prorated portion of
increase.
10.2 Definition of "Real Property" Taxes. As used herein, the term "real
property" shall include any form of assessment, advalorem tax, license fee, use
tax, fee title tax, rent tax, occupancy tax, parking tax, excise tax on rents,
gross receipts tax, and any tax which is a substitute for real property taxes,
and any tax upon any legal or equitable interest of Landlord in the Premises or
in the real property of which the Premises are a part, or upon Landlord's right
to rent, or upon any rental income from the Premises, or upon Landlord's
business of leasing the Premises. The term real property taxes shall not include
any net income taxes or any inheritance or estate taxes.
10.3 Joint Assessment. If the Premises are not separately assessed,
Tenant's liability shall be the percentage of the total square footage of the
Complex as set forth in Paragraph 1.2.
10.4 Personal Property Taxes.
(a) Tenant shall pay, prior to delinquency, all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all other personal
property of Tenant contained in the Premises or elsewhere. Tenant shall cause
said fixtures, furnishings, equipment and other personal property to be assessed
and billed separately from the real property of Landlord.
(b) If any of Tenant's said personal property shall be assessed with
Landlord's real property, Tenant shall pay Landlord, as additional rent, the
taxes attributable to Tenant together with Tenant's next rental installment
after receipt of a written statement setting forth the taxes applicable to
Tenant's property.
10.5 Property Taxes on Improvements. Notwithstanding the provisions of
Paragraph 10 hereinabove, Tenant shall pay, as additional rent, any increase in
"real property taxes" resulting from any and all improvements of any kind
whatsoever placed on or in the Premises for the benefit of or at the request of
Tenant regardless of whether said improvements were installed or constructed
either by Landlord or Tenant, except those items included with the original
Premises. Payment shall be made to Landlord together with Tenant's next rental
installment after receipt of a written statement from Landlord setting forth the
amount of such increase.
11. COMMON AREAS When, in fact, there are Common Areas, then the following
shall apply:
11.1 Landlord's Rules and Regulations for the use of the Common Areas.
Tenant shall faithfully observe and
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comply with the rules and regulations, that Landlord shall from time to time
promulgate for the use of the common areas. If Tenant, Tenant's agents,
employees, customers or invitees, fail to comply with said rules and
regulations, Landlord shall have the right to charge Tenant a fine for
nonperformance of the said rules and regulations. All fines shall be due and
payable as additional rent to Landlord together with Tenant's next rental
installment after receipt from Landlord of fine amount. A copy of said rules and
regulations is attached hereto. Landlord reserves the right from time to time to
make all reasonable modifications to said rules and regulations. All such
modifications shall be binding upon Tenant upon delivery of a copy of them to
Tenant. Landlord shall not be responsible to Tenant for the nonperformance of
any of the said rules and regulations by any other tenants, their agents,
employees, customers or invitees. Landlord shall be fair and reasonable.
11.2 Definitions. The phrase "Common Areas" means all areas and
facilities outside the Premises that are provided and designated for general use
and convenience of Tenant and other tenants and their respective officers,
agents and employees, customers and invitees. Common Areas include (but are not
limited to) hallways, stairways, pedestrian sidewalks, landscaped areas,
driveways, fire lanes, loading zones, parking areas and railroad tracks, if any.
Landlord reserves the right from time to time to make changes in the shape,
size, location, and extent of the land and improvements constituting the Common
Areas.
11.3 Maintenance. During the term of this Lease, Landlord, at Landlord's
expense, shall operate, manage, and maintain the Common Area so that they are
clean and free from accumulations of debris, filth, rubbish, and garbage. The
manner in which such Common Area shall be so maintained, and the expenditures
for such maintenance, shall be at the sole discretion of Landlord.
11.4 Tenant's Rights and Obligations.
(a) Landlord hereby grants to Tenant, during the term of this Lease,
the license to use, for the benefit of Tenant and its officers, agents,
employees, customers, and invitees, in common with the others entitled to such
use, the Common Area as they from time to time exist, subject to the rights,
powers and privileges herein reserved to Landlord.
(b) Storage, either permanent or temporary, of any materials,
supplies, recycling or equipment in the Common Area is strictly prohibited.
Should Tenant violate this provision of this Lease, then in such event, Landlord
may, at his option either terminate this Lease, charge a fine and/or, without
notice to Tenant, remove said materials, supplies or equipment from the Common
Areas and place such items in storage, the fine and/or cost thereof to be
reimbursed by Tenant, as additional rent, together with Tenant's next rental
installment after receipt of a statement submitted by Landlord.
(c) Tenant shall be assigned parking spaces as specified in Paragraph
1.9. Tenant and its officers, agents, employees, customers and invitees shall
park their motor vehicles only in areas designated by Landlord for that purpose
from time to time. Tenant shall not at any time park or permit the parking of
motor vehicles, belonging to it or to others, so as to interfere with the
pedestrian sidewalks, driveways, fire lanes and loading zones or in any portion
of the parking areas not designed by Landlord for such use by Tenant.
(d) Tenant agrees that receiving and shipping of goods and merchandise
and all removal of refuse shall be made only by way of the loading areas
constituting part of the Premises.
(e) Tenant shall repair, at its cost, all deteriorations or damages
to the Common Areas; occasioned by Tenant's lack of ordinary care. If Tenant
fails to repair or commence repairs of such deteriorations or damages prior to
ten (10) days after receipt of written notice from Landlord, then in such event,
Landlord may, at his option, repair such deteriorations or damages at the sole
cost of the Tenant. Such costs to be reimbursed by Tenant as additional rent
together with tenant's next rental installment after receipt of statement of
costs from Landlord.
11.5 Construction. Landlord, while engaged in constructing improvements or
making repairs or alterations in or about the Premises or in their vicinity,
shall have the right to make reasonable use of the Common Areas.
12. UTILITIES AND SERVICES. Tenant shall pay as additional rent for all charges
for electric, gas, water, garbage, telephone, security alarms, security guards
and other utilities and services supplied to the Premises, together with any
taxes thereon. If any such utilities and services are not separately billed to
Tenant directly by supplier, Tenant shall pay a reasonable Proportion of
supplier's charges to Landlord. The Landlord will determine the method of
distributing the charges. Tenant shall make payment for such charges together
with Tenant's rental installment after receipt of statement of charges from
Landlord. Should Tenant fail to pay such charges when due, Landlord has the
option of discontinuing to provide such utilities and services to Tenant when
such failure to pay continues for a three (3) day period after written notice to
Tenant from Landlord that charges are due and unpaid.
13. ASSIGNMENT AND SUBLETTING
13.1 Landlord's Consent Required. Tenant shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet or otherwise transfer or
encumber all or any part of Tenant's interest in this Lease or in the Premises
without Landlord's prior written consent, which Landlord shall not unreasonably
withhold. Any attempted assignment, transfer, mortgage, encumbrance or
subletting without such consent shall be void and shall constitute a breech of
this Lease. Any transfer of Tenant's interest in this Lease or in the Premises
from Tenant by merger, consolidation or liquidation or by any subsequent change
of the ownership of fifty (50%) percent or more of the capital stock of Tenant
shall be deemed a prohibited assignment within the meaning of this Paragraph 13.
Unless the entity to which] the interest in the lease is being transferred has
the same financial stability and integrity, or better, than the original lease
holder.
13.2 Reasonable Consent.
(a) If Tenant complies with the following conditions, Landlord shall
not unreasonably withhold its consent to the assignment of the Lease or the
subletting of the Premises or any portion thereof. Tenant shall submit in
writing to Landlord:
(1) The names and legal composition of the proposed Assignee or
Sublessee.
(2) The nature of the proposed Assignee's or Sublessee's business
to be carried on in the Premises.
(3) The terms and provisions of the Proposed Assignment or
Sublease.
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(4) Such reasonable financial information as Landlord may request
concerning the proposed Assignee or Sublessee including, without limitation,
financial history, credit rating rind business expense.
(b) Tenant acknowledges that Landlord has entered into this Lease in
reliance on the particular skills, knowledge and experience of Tenant and/or the
principal officer of Tenant with respect to the conduct of business in the
Premises; Tenant recognizes that Landlord's substantial investment in the
Premises and the willingness of Landlord to put that investment at risk under
the terms of this Lease is based upon Landlord's judgmental considerations
regarding Tenant's abilities as set forth above. Without in any way limiting
Landlord's right to refuse to give such consent if in Landlord's reasonable
business judgment the quality of operation is or may be in any way adversely
affected during the Term of this Lease or the financial worth of the proposed
new Tenant is less than that of the Tenant executing this Lease or of the Tenant
and the Tenant's Guarantor as the case may be, or if investigation discloses
other information unsatisfactory to Landlord. Anything to the contrary
notwithstanding contained herein or elsewhere in this Lease, Landlord, as
additional consideration for approval of such assignment or subletting shall be
entitled:
(1) to receive any and all consideration payable in connection
therewith, including without limitation, any additional Rent or other charges or
any lump sum settlement; and/or
(2) to require increases in Rent payable to Landlord consistent
with the then current rent rate for a new lease for similar premises in the
Project; and/or
(3) to modifications in such other provisions of the Lease,
including without limitation, cancellation of any options to extend the term
granted hereunder, as Landlord shall deem advisable; and/or
(4) to cancel or terminate this Lease upon thirty (30) days
written notice to Tenant, provided that in such event, Tenant may elect by
written notice to Landlord within ten (10) days of delivery of notice of
cancellation or termination to retain the Premises for the balance of the term
of the Lease on the terms and conditions herein set forth.
13.3 No Release of Tenant.
(a) Regardless of Landlord's consent, no subletting or assignment
shall release Tenant of Tenant's obligation to pay the rent and to perform all
other obligations to be performed by Tenant hereunder for the term of this
Lease. 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.
(b) Tenant hereby irrevocably assigns to Landlord all Rent and other
sums from any subletting of the Premises, and agrees that Landlord as assignee
and as attorney-in-fact for Tenant, or a receiver for Tenant appointed upon
Landlord's application, may collect such rent and other sums and apply the same
as provided in Paragraph 14.2 upon Tenant's default; provided, however, that
until the occurrence of any act of default by Tenant or Subtenant, Tenant shall
have the right to collect such sums.
13.4 Assignment Fee. In the event that Landlord shall consent to a sublease
or assignment under Paragraph 13.1, Tenant shall pay Landlord a reasonable fees
to compensate Landlord for costs incurred in connection with giving such
consent.
13.5 Involuntary Assignment.
(a) No interest of Tenant in this Lease shall be assignable by
operation of law. Each of the following acts shall be considered an involuntary
assignment:
(1) If the Tenant is or becomes bankrupt or Insolvent, or
institutes a proceeding under the Bankruptcy Act in which Tenant is the
bankrupt; or, if Tenant is a partnership or consists of more then one person or
entity, if any partner of the partnership or other person or entity is or
becomes bankrupt or insolvent, or makes an assignment for the benefit of
creditors;
(2) If a writ of attachment or execution on levied on this Lease
and is not removed within thirty (30) days of the levy;
(3) If, in any proceeding or action to which Tenant is a party,
and Landlord shall have the right to elect to terminate this Lease, in which
case this Lease shall not be treated as an asset of Tenant.
13.6 Effect of Invalidity of Provisions of Paragraph 13.5 Specifically.
Specifically with reference to this Paragraph 13 and its subparagraphs, any
invalidity or unenforceability of any of its provisions shall not affect any
other provisions of this Lease.
14. DEFAULTS: REMEDIES
14.1 Defaults. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant:
(a) The vacating or abandonment of the Premises by Tenant.
(b) The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due, where such
failure shall continue for a period of three (3) days after written notice
thereof from Landlord to Tenant.
(c) The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Tenant,
other than described in Paragraph (b) above, where such failure shall continue
for a period of three (3) days after written notice thereof from Landlord to
Tenant; provided, however, that if the nature of Tenant's default is such that
more than three (3) days are reasonably required for its cure, then Tenant shall
not be deemed to be in default if Tenant commenced such cure within said three
(3) day period and thereafter diligently prosecutes such cure to completion.
(d) The making by Tenant of any general assignment, or general
arrangement for the benefit of creditors.
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(e) The appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease; where possession is not restored to Tenant within thirty
(30) days.
(f) The attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged within thirty (30)
days.
14.2 Remedies in Default. In the event of any such default or breach by
Tenant, Landlord may at any time thereafter, with or without notice or demand
and without limiting Landlord in exercise of any right or remedy which Landlord
may have by reason of such default or breach:
(a) Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default including, but not limited to, the cost
of recovering possession of the Premises; expenses of reletting, including
necessary renovation and alteration of the Premises; reasonable attorney's fees
and any real estate commission paid; the worth at the time of award by the court
of the unpaid rent that had been earned at the time of termination of the Lease;
the worth at the time of award by the court of the amount by which the unpaid
rent for the balance of the term after the time of award exceeds the amount of
the loss of rent that Tenant proves could have been reasonable avoided; and that
portion of the leasing commission paid by Landlord applicable to the unexpired
term of this Lease, Unpaid installments of rent or other sums shall bear
interest from the due date at the rate of ten (10%) percent per annum. In the
event Tenant shall have abandoned the Premises, Landlord shall have the option
of either retaking possession of the Premises and recovering from Tenant the
amount specified in this Paragraph 14.2 (a) or proceeding under Paragraph 14.2
(b).
(b) Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant shall have abandoned the
Premises. In such event Landlord shall be entitled to enforce all of Landlord's
rights and remedies under this Lease, including the right to recover the rent as
it becomes due hereunder,
(c) Pursue any other remedy now or hereunder available to Landlord
under the laws or judicial decisions of the state in which the Premises are
located.
14.3 Default By Landlord. Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord within a reasonable time, but
in no event later than thirty (30) days after written notice by Tenant to
Landlord except when the nature of Landlord's obligation requires more than
thirty (30) days for performance. Landlord shall not be in default if Landlord
commences performance within such thirty (30) day period and thereafter
diligently prosecutes the same to completion.
14.4 Late Charges. Tenant hereby acknowledges that late payment by Tenant
to Landlord of rent and other sums due hereunder will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult and impractical to fix. Such costs include, but are not
limited to, processing and accounting charges, and late charges, which may be
imposed, on Landlord by the terms of any encumbrance and note secured by any
encumbrance covering the Premises. Accordingly, if any installment of rent or
any other sum clue from Tenant shall not be received by Landlord or Landlord's
designee within five (5) days of due date, then Tenant shall pay to Landlord as
additional rent an additional sum equal to ten (10%) percent of such overdue
amount or thirty-five ($35.00) dollars which ever is greater as a late charge.
Such sum shall be payable to Landlord together with Tenant's next rental
installment after notice is received from Landlord of late charge amount. The
parties hereby agree that such late charge represents a fair and reasonable
estimate of the cost Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event constitute a waiver
of Tenant's default with respect to such overdue amount, or prevent Landlord
from exercising any of the other rights and remedies available to Landlord.
14.5 Rights and Obligations under the Bankruptcy Code.
(a) Upon the filing of a petition by or against Tenant under the
United States Bankruptcy Code, Tenant, as debtor in possession, and any trustee
who may be appointed agree as follows:
(1) to perform each and every obligation of Tenant under this
Lease until such time as this Lease is either rejected or assumed by order of
the United States Bankruptcy Court; and
(2) to pay monthly in advance on the first day of each month a
reasonable compensation for use and occupancy of the Premises in an amount equal
to the Rent and other charges otherwise due pursuant to this Lease; and
(3) to reject or assume this Lease within sixty (60) days of the
filing of such petition under Chapter 7 of the Bankruptcy Code or within one
hundred twenty (120) days or such shorter term as Landlord, in its sole
discretion, may deem reasonable so long as notice of such period is given) of
the filing of a petition under any other Chapter; and
(4) to give Landlord at least forty-five (45) days prior written
notice of any abandonment of the Premises; and
(5) any such abandonment to be deemed a rejection of this Lease;
and
(6) to do all other things of benefit to Landlord otherwise
required under the Bankruptcy Code; and
(7) to be deemed to have rejected this Lease in the event of the
failure to comply with any of the above; and
(8) to have consented to the entry of an order by an appropriate
United States Bankruptcy Court providing all of the above; waiving notice and
hearing of the entry of same.
(b) Included within and in addition to any other conditions or
obligations imposed upon Tenant or its successor in the event or assumption
and/or assignment are the following:
(1) the cure of any monetary defaults and the reimbursement of
pecuniary loss within not more
9
than thirty (30) days of assumption and/or assignment; and
(2) the deposit of an additional sum equal to three (3) months
rent to be held pursuant to the terms of Paragraph 5 of this Lease; and
(3) the use of the Premises as set forth in Paragraph 6 of this
Lease; and
(4) the reorganized debtor or assignee of such debtor in
possession or of Tenant's trustee demonstrates in writing that it has sufficient
background including, but not limited to, financial ability and experience to
operating in the manner contemplated in this Lease and meets all other
reasonable criteria of Landlord as did Tenant upon execution of this Lease; and
(5) the prior written consent of any mortgagee to which this Lease
has been assigned as collateral security; and (6) the Premises, at all times,
remains a single location and no physical changes of any kind maybe made to the
Premises unless in compliance with the applicable provisions of this Lease.
15. CONDEMNATION
15.1 Termination of Lease. If the Premises or any portion thereof are taken
under the power of eminent domain, or sold by Landlord under the threat of the
exercise of said power (all of which is herein referred to as "condemnation"),
this Lease shall terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever occurs first. If more that
twenty-five (25%) percent of the square footage of the Premises, or more than
twenty-five (25%) percent of the land area of the Premises not covered With
buildings, is taken by condemnation, either Landlord or Tenant may terminate
this Lease as of the date of the condemning authority taking possession or, by
notice in writing of such election within twenty (20) days after Landlord shall
have notified Tenant of the taking or, in the absence of such notice, then
twenty (20) days after the condemning authority shall have taken possession.
15.2 Non Termination of Lease. If this Lease is not terminated by either
Landlord or Tenant then it shall remain in full force and effect as to the
portion of the Premises remaining provided the monthly rent shall be reduced in
proportion to the square footage taken as it bears to the total square footage
of the Premises. In the event this Lease is not so terminated, Landlord agrees,
at Landlord's sole cost, to as soon as reasonably possible restore the Premises
to a complete unit of like quality and character as existed prior to the
condemnation.
15.3 Awards. All awards for the taking of any part of the Premises or any
payment made under the threat of the exercise of power of eminent domain shall
be the property of Landlord, whether made as compensation for diminution of
value of the leasehold or for the taking of the fee or as severance damages;
provided, however, that Tenant shall be entitled to any award for loss of or
damage to Tenant's trade fixtures and removable personal property.
16. GENERAL PROVISIONS
16.1 Offset Statement.
(a) Tenant shall at any time upon not less than ten (10) days prior
written notice from Landlord execute, acknowledge and deliver to Landlord a
written offset statement. Such statement shall certify that this Lease is
unmodified or if modified, states the nature of such modifications. Such
statement shall certify that this Lease is in full force and effect, the date to
which the rent, security deposit and other charges are paid in advance, if at
all. Such statement shall acknowledge that there are not, to Tenant's knowledge,
any uncured defaults on the pert of Landlord hereunder, or specifying such
defaults, if any, which are claimed. Any such statement may be conclusively
relied upon by any prospective purchaser or encmbrancer of the Premises.
(b) Tenant's failure to deliver such statement within such time shall
be conclusive upon Tenant that this Lease is in full force and effect, without
modification except as may be represented by Landlord, that there are no uncured
defaults in Landlord's performance, and that not more then one (1) month's rent
has been paid in advance.
(c) If Landlord desires to finance or refinance the Premises, or any
part thereof, Tenant hereby agrees to deliver to any lender designated by
Landlord such financial statements of Tenant as may be reasonably required by
such lender. Such statements shall include the past three (3) years financial
statement of Tenant. All such financial statements shall be received by Landlord
in confidence and shall be used only for the purposes herein set forth.
16.2 Landlord's Interests. The term "Landlord" as used herein shall mean
only the owner or owners at the time in question of the fee title or a tenant's
interest in the ground lease of the Premises. In the event of any transfer of
such title or interest, and alter the date of such transfer, Landlord herein
named (and in case of any subsequent transfers the then grantor) shall be
relieved of all liability as respects Landlord's obligations thereafter to be
performed, provided that any funds in the hands of Landlord or the then grantor
at the time of such transfer, in which Tenant has an interest, shall be
delivered to the grantee. The obligations contained in this Lease to be
performed by Landlord shall, subject as aforesaid, be binding on Landlord's
successors and assignees, only during their respective periods of ownerships.
16.3 Severability. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
16.4 Interest on Past-Due Obligations. Except as expressly herein provided,
any amount due to Landlord not paid when due shall bear interest at ten (10%)
percent per annum from the date due. Payment of such interest shall not excuse
or cure any default by Tenant under this Lease. Interest shall be payable by
Tenant, as additional rent, together with next rental installment after Notice
has been given to Tenant of interest amount due.
16.5 Time of Essence. Time is of the essence.
16.6 Captions. Article and paragraph captions are not a part hereof.
16.7 Incorporation of Prior Agreements; Amendments. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
agreement or understanding pertaining to any such matter shall be effective.
This Lease may be modified in writing only, signed by the parties in interest at
the time of the modification.
16.8 Waivers. No waiver by Landlord of any provision hereof shall be deemed
a waiver of any other provision
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hereof or of any subsequent breach by Tenant of the same or any other provision.
Landlord's consent to or approval of any act shall not be deemed to render
unnecessary the obtaining of Landlord's consent to or approval of any subsequent
act by Tenant. The acceptance of rent hereunder by Landlord shall not be a
waiver of any preceding breach by Tenant of any provision hereof, other than
the failure of Tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of
such rent.
16.9 Application of Payments. All payments made by Tenant to Landlord shall
be applied to the earliest charges to Tenant's account first.
16.10 Holding Over.
(a) If Tenant remains in possession of the Premises or any part
thereof after the expiration of the term hereof with the express written consent
of Landlord, such Occupancy shall be a tenancy from month-to-month at one
hundred fifty percent (150%) of the then existing rental amount or a rental
amount to be stated in a written notice from Landlord to Tenant thirty (30) days
prior to termination date of this Lease. Such occupancy shall be subject to all
other charges payable hereunder, and upon the terms hereof.
(b) Any holding over of the Premises by Tenant after the expiration of
the term hereof without the express written consent of Landlord shall not
constitute a renewal or extension and shall not give Tenant any rights on or to
the Premises or any part thereof.
16.11 Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive, but shall wherever possible, be cumulative with all other remedies at
law or in equity.
16.12 Covenants and Conditions. Each provision of this Lease performable by
Tenant shall be deemed both a covenant and a condition.
16.13 Binding Effect; Choice of Law. Subject to any provision hereof
restricting assignment or subletting by Tenant and subject to the provisions of
Paragraph 16.2, this Lease shall bind the parties, their personal
representatives, successors and assignees. This Lease shall be governed by the
laws of the state where the Premises are located.
16.14 Subordination.
(a) This Lease, at Landlord's option, shall be subordinate to any
ground lease, mortgage, deed of trust, or any hypothecation for security now or
hereafter placed upon the real property of which the Premises are a part and to
any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Tenant's right to quiet possession of the
Premises shall not be disturbed if Tenant is not in default and so long as
Tenant shall pay the rent and all other charges, and observe and perform all of
the provisions of this Lease, unless this Lease is otherwise terminated pursuant
to its terms. If any mortgage, trustee or ground lessor shall elect to have this
Lease prior to the lien of its mortgage, deed of trust, or ground lease, and
shall give written notice thereof to Tenant, this Lease shall be deemed prior to
such mortgage, deed of trust, or ground lease, whether this Lease is dated prior
or subsequent to the date of said mortgage, deed of trust or ground lease or the
date of recording thereof.
(b) Tenant agrees to execute any documents required to effectuate such
subordination or to make this Lease prior to the lien of any mortgage, deed of
trust or ground lease, as the case may be, and failing to do so within ten (10)
days after written demand, does hereby make, constitute and irrevocably appoint
Landlord as Tenant's attorney in fact and in Tenant's name, place and stead, to
do so.
16.15 Attorney's Fees. If Tenant or Landlord shall bring any action for any
relief against the other, declaratory or otherwise, arising out of this Lease,
including any suit by Landlord for the recovery of rent or possession of the
Premises, the losing party shall pay to the prevailing party a reasonable sum
for legal expenses which shall be deemed to have accrued on the commencement of
such action and shall be paid whether or not such action is prosecuted to
judgment or goes to court.
16.16 Landlord's access. Landlord and Landlord's agents shall have the
right to enter the Premises at reasonable times for the purpose of inspecting
the same; showing the same to prospective purchasers, lenders, inspectors, or
appraisers; and making such alterations, repairs, improvements or additions to
the Premises or to the building of which they are a part as Landlord may deem
necessary or desirable. Landlord will give Tenant at least Twenty-Four (24)
hours notice of intent to enter Premises, except in cases of emergency. Landlord
shall at all times have copies of all keys needed to enter Premises. If Tenant
changes locks or prevents access to Landlord in any way, it is a breach of this
Lease, and Landlord may take immediate steps to restore access at Tenant's
expense without prior notice to Tenant. Landlord may at any time place on or
about the Premises any ordinary "For Sale" signs and Landlord may at any time
during the last four (4) months of the term hereof place on or about the
Premises any ordinary "For Sale or Lease" signs, all without rebate of rent or
liability to Tenant.
16.17 Auctions. Tenant shall not place any auction sign upon the Premises
or conduct any auction thereon without Landlord's prior written consent.
16.18 Merger. The voluntary or other surrender of this Lease by Tenant, or
a mutual cancellation thereof, shall not work a merger, and shall, at the option
of Landlord, terminate all or any existing subtenancies or may, at the option of
Landlord, operate as an assignment to Landlord of any or all of such
subtenancies.
16.19 Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the Bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
16.20 Landlord's Liability. If Landlord is a Limited Partnership, the
liability of the Partners of the Landlord pursuant to this Lease shall be
limited to the assets of the partnership; and Tenant, its successors and assigns
hereby waive all rights to proceed against any of the partners, or the officers,
shareholders, or directors of any corporate partner of Landlord except to the
extent of their interest in the partnership.
16.21 Fair Interpretation. This Lease form was prepared by Landlord, but
the Parties agree that this Lease shall not be interpreted against the Landlord
for that reason. This Lease shall be interpreted fairly and in a balanced manner
to
11
achieve a fair result and to carry out the fair intention of the Lease terms.
16.22 Nonrecordation of Lease. It is the intention or the Parties that this
Lease not be recorded, except that if either Party requests that other party to
do so, the Parties shall execute a memorandum of Lease in recordation form
containing only the name or the Parties, a description of the leased Premises
and a description of the Lease Term. However the Landlord shall not be required
to execute any such memorandum of Lease, nor shall Tenant record this Lease
without delivering to Landlord a Quit Claim Deed executed by Tenant in
recordable form showing Tenant as the Grantor, the Landlord as the Grantee and a
satisfactory description of the Leased Premises. In such case Landlord shall
hold said Quit Claim Deed until there is a breach of this Lease by Tenant, and
upon such breach, regardless of the materiality thereof, Landlord may record
said Quit Claim Deed.
17. PERFORMANCE BOND. At any time Tenant either desires to or is required to
make repairs, alterations, additions, improvements or utility installation
thereon, pursuant to Paragraphs 7.3 or 9.2 herein, or otherwise. Landlord may at
his sole option require Tenant, at Tenant's sole cost and expense, to obtain and
provide to Landlord a lien and completion bond in an amount equal to one and
one-half (1 1/2) times the estimated cost of such improvements, to insure
Landlord against liability for mechanics lien and materialmen's lien and to
insure completion of the work.
18. BROKERS. The parties hereto acknowledge that the Brokers Specified in
Paragraph 1.11 were the real estate brokers that represented the Parties herein,
and that no other commissions are due to any brokers whatsoever, other than the
above named brokers.
19. NOTICES. Whenever under This Lease provision is made for any demand,
notice or declaration of any kind, or where it is deemed desirable or necessary
by either party to give or serve any such notice, demand or declaration to the
other party, it shall be in writing and served either personally or sent by
United States mail, postage prepaid, addressed at the addresses set forth in
Paragraph 1.12. The Notice shall be effective upon personal service or seventy
two (72) hours after deposit in the United States Mail as stated above.
The parties hereto have executed this Lease at the place and on the dates
specified immediately adjacent to their respective signatures.
Executed at: Emeryville, CA
-----------------------------
on: 5-6-99
-----------------------------
By: /s/ HSP
-----------------------------
"Landlord"
Executed at: Emeryville, CA
-------------------------------
on: May 6, 1999
-------------------------------
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, President
-------------------------------
"Tenant"
If this Lease has been filled in, it has been prepared for submission to your
attorney for his approval. No representation or recommendation is made by the
real estate broker or its agents or employees as to the legal sufficiency, legal
effect, or tax consequences of this Lease or the transaction relating thereto.
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RULES & REGULATIONS
A: Parking.
-----------
1. Tenants shall park only in their assigned parking spaces. Failure to park
in assigned spaces will result in a twenty five ($25.00) dollar parking fee
and/or ticketing and/or towing by the City Police Department.
2. Tenants shall restrict their use of the Loading Zones to the times when
they are loading or unloading. Parking in a Loading Zone will result in a twenty
five ($25.00) parking fee and/or ticketing and/or towing by the City Police
Department.
3. Tenants shall not park in the walkways, driveways or fire lanes. Parking in
any of these areas will result in a twenty five ($25.00) parking fee and/or
ticketing and/or towing by the City Police Department.
B. Trash and recycling.
-----------------------
All Tenants who share in the Oakland Scavenger Trash Service are directed to
do the following:
1. If the dumpsters are full, pack down the trash making sure all trash is
kept under the lids, and the lids kept closed.
2. Do not leave trash next to the dumpsters. If the dumpsters are full, save
your trash until there is room in a dumpster after the next pickup.
3. Tenants with large volumes of rubbish for removal must make special
arrangements with the Scavenger Service.
4. Cardboard boxes should be flattened prior to disposal into recycling
dumpster.
C. Roof.
--------
1. Tenants are not allowed access to the roof.
2. No personal property may be placed on the roof unless prior written
permission is obtained from Landlord.
D. Common Areas.
----------------
1. Personal Property is not to be stored in common areas.
2. Driveways, fire lanes and corridors are to be kept clear of all obstacles.
3. Landscaping is for the benefit and enjoyment of all Tenants. No cutting or
removal of flowers or trees is allowed.
4. Littering of Common areas is strictly prohibited. Repeat offenders will be
subject to a twenty five ($25.00) dollar fee.
Violations of the above rules and regulations will result in the Tenant being
charged an appropriate fee when not already specified after the Tenant has been
given one (1) Notice of violation.
Landlord is not responsible for any loss or damages to any vehicle or its
contents or any other personal property while said vehicle or property is being
towed or removed from parking lot or common areas while in violation of the
above rules and regulations.
Failure to comply with the above rules and regulations or pay fees with next
rental installment after written notice of fees is a breach of Lease.
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Exhibit A
Map of ▇▇▇▇▇▇ Street Project
Emeryville California
14
Exhibit B
Landlord agrees to do the following at Landlord's expense.
1. Paint leased premises in the building standard paint.
2. Carpet the leased premises in the building standard carpet, color to be
chosen by tenant.
3. Landlord will allow tenant temporary space, known as ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇ which is approximately 2200 square feet for the monthly rent of
$2,200.00 for the period of time for the Tenant Improvements to be completed.
Upon completion of the Tenant Improvements in Suite O, Tenant shall vacate
Suite T2 as soon a possible thereafter.
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EXHIBIT C
TARGET INDUSTRIAL OFFICE RENTAL AGREEMENT
DISCLOSURE OF INFORMATION ON LEAD-BASED PAINT
AND LEAD-BASED PAINT HAZARDS
WARNING STATEMENT
Some building built prior to 1978 may contain lead-based paint. Lead from paint,
paint chips, levelor blinds and dust can pose health hazards if not taken care
of properly. Lead exposure is especially harmful to young children and pregnant
women. Before renting pre-1978 buildings, Landlords must disclose the presence
of known lead-based paint and lead-based paint hazards in the building. Tenants
must also receive a Federally approved pamphlet on lead poisoning prevention.
Landlord's Disclosure (please initial)
(a) Presence of lead-based paint or lead-based paint hazards
--------
Known lead-based paint and/or lead-based paint hazards are present,
-----
explain below: ________________________________________________________________
_______________________________________________________________________________
XX Landlord has no knowledge of lead-based paint and/or lead-based paint
------
hazard in the building.
(b) Records and reports available to Landlord.
--------
Landlord has provided the Tenant with all available records and reports
-----
pertaining to lead-based paint and/or lead-based paint hazards in the building.
(list documents below)
XX Landlord has no reports or records pertaining to lead-based paint
------
and/or lead-based paint hazards in the building.
Tenant's Acknowledgement (please initial)
C.K. (c) Tenant has received copies of all information listed above.
--------
C.K. (d) Tenant has received the pamphlet Protect Your Family from Lead
-------- in Your Home.
Broker/Agent Acknowledgement (initial when applicable)
(e) Broker/Agent has informed the Landlord or Landlord's obligation
-------- under 42 U.S.C. 4852(d) and is aware of his/her responsibility to
ensure compliance.
Certification of Accuracy
The following parties have reviewed the information above and certify, to the
best of their knowledge, that the information provided by signatory is true and
accurate.
5-6-99 /s/ HSP
------ -------------------------------------------
Date Landlord
05-06-99 /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, President
-------- -------------------------------------------
Date Tenant
5-12-99 /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------- --------------------------------------------
Date Tenant
------- --------------------------------------------
Date Broker/Agent
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