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EXHIBIT 10.1
[CB LOGO] OFFICE BUILDING LEASE
CB COMMERCIAL REAL ESTATE GROUP, INC.
BROKERAGE AND MANAGEMENT
LICENSED REAL ESTATE BROKER
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
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[CB COMMERCIAL LOGO]
This Lease between Hacienda Park Associates ,
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a California General Partnership
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("Landlord"), and Pro Business Payroll ,
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a California corporation , ("Tenant"), is
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dated August 12 , 1992.
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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): $ refer to 2j
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b. Base Year: The calendar year of 1992 ,
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c. Broker(s)
Landlord's: CB Commercial ,
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Tenant's: CB Commercial ,
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In the event that CB Commercial Real Estate Group, Inc. represents both
Landlord and Tenant, Landlord and ▇▇▇▇▇▇ 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: October 1, 1992 ,
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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): $ 6.68 per square foot, per year ,
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g. Expiration Date: September 30, 1998 , unless otherwise
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sooner terminated in accordance with the provisions of this Lease.
h. Index (Section 5.2): United States Department of Labor, Bureau of Labor
Statistics Consumer Price Index for All Urban Consumers,
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Average, Subgroup "All Items" (1967 = 100).
i. Landlord's Mailing Address: CB Commercial Real Estate Group, Inc.
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5667 ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tenant's Mailing Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Mos. 1 - 9 $14,047.20 1.20 5/12/92
j. Monthly Installments of Base Rent (initial): 5/13 Mos. 10-15 $15,803.10 1.35 5/12/93 - 11/15/93 per month.
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11/23 Mos. 16-72 $16,973.70 1.45
k. Parking: Tenant shall be permitted, upon payment of the then prevailing
monthly rate (as set by Landlord from time to time) to park 46 cars on a
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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 ▇▇▇▇▇▇'s guests and visitors for
parking.
l. Premises: that portion of the Building containing approximately 11,706
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square feet of Rentable Area, shown by diagonal lines on Exhibit "A",
located on the second floor of the Building and known as Suite 201.
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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 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
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Pleasanton, California and further described at Exhibit "8." The Project
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is known as Saratoga Center.
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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 ▇▇▇▇▇▇ and all tenants of the Project, respectively, as determined by
Landlord and applied on a consistent basis throughout the Project.
(1)
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p. State: the State of California
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q. Tenant's First Adjustment Date (Section 5.2): the first day of the
calendar month following the Commencement Date plus months.
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r. Tenant's Proportionate Share: Upon completion of tenant improvements
described in Exhibit "C", Tenant's proportionate share of the building
containing the Premises shall be 28.10%. Such share is a fraction, the
numerator of which is the Rentable Area of the Premises, and the denominator
of which is the Gross Area of the Building, as determined by the Landlord from
time to time. The Building consists of 41,656 square feet. Tenant's
proportionate share of the Project shall be 14.06%. Such share is a fraction,
the numerator of which is the Rentable Area of the Premises, and the
denominator of which is the Rentable Area of the Project, as determined by the
Landlord from time to time. The project consists of two buildings containing a
total Rentable Area of 83,230 square feet.
s. Tenant's Use Clause (Article 8): Payroll Services
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t. 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 "C" - Space Plan dated August 12, 1992
d. Exhibit "D" - Rules and Regulations.
e.
f. Addenda
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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. ▇▇▇▇▇▇ 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.
5.3 Project Operating Costs.
a. In order that the Rent payable during the Term reflect any increase in
Project Operating Costs, ▇▇▇▇▇▇ agrees to pay to Landlord as Rent, ▇▇▇▇▇▇'s
Proportionate Share of all increases in costs, expenses and obligations
attributable to the Project and its operation, all as provided below.
b. If, during any calendar year during the Term, Project Operating Costs
exceed the Project Operating Costs for the Base Year, Tenant shall pay to
Landlord, in addition to the Base Rent and all other payments due under
this Lease, an amount equal to Tenant's Proportionate Share of such excess
Project Operating Costs in accordance with the provisions of this Section
5.3b.
(2)
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(a) All taxes, assessments, water and sewer charges and other similar
government charges levied on or attributable to the Building or Project or
their operation, including without limitation, (i) real property taxes or
assessments levied or assessed against the Building or Project, (ii)
assessments or charges levied or assessed against the Building or Project by
any redevelopment agency, (iii) any tax measured by gross rentals received
from the leasing of the Premises, Building or Project, excluding any net
income, franchise, capital stock, estate or inheritance taxes imposed by the
State or federal government or their agencies, branches or departments;
provided that if at any time during the Term any governmental entity levies,
assesses or imposes on Landlord any (1) general or special, ad valorem or
specific, excise, capital levy or other tax, assessment, levy or charge
directly on the Rent received under this Lease or on the rent received under
any other leases of space in the Building or Project, or (2) any license fee,
excise or franchise tax, assessment, levy or charge measured by or based, in
whole or in part, upon such rent, or (3) any transfer, transaction, or
similar tax, assessment, levy or charge based directly or indirectly upon the
transaction represented by this Lease or such other leases, or (4) any
occupancy, use, per capita or other tax, assessment, levy or charge based
directly or indirectly upon the use or occupancy of the Premises or other
premises within the Building or Project, then any such taxes, assessments,
levies and charges shall be deemed to be included in the term Project
Operating Costs. If at any time during the Term the assessed valuation of, or
taxes on, the Project are not based on a completed Project having at least
eighty-five percent (85%) of the Rentable Area occupied, then the "taxes"
component of Project Operating Costs shall be adjusted by Landlord to
reasonably approximate the taxes which would have been payable if the Project
were completed and at least eighty-five percent (85%) occupied.
(b) Operating costs incurred by Landlord in maintaining and operating the
Building and Project, including without limitation the following: costs of
(1) utilities; (2) supplies; (3) insurance (including public liability,
property damage, earthquake, and fire and extended coverage insurance for the
full replacement cost of the Building and Project as required by Landlord or
its lenders for the Project; (4) services of independent contractors; (5)
compensation (including employment taxes and fringe benefits) of all persons
who perform duties connected with the operation, maintenance, repair or
overhaul of the Building or Project, and equipment, improvements and
facilities located within the Project, including without limitation
engineers, janitors, painters, floor waxers, window washers, security and
parking personnel and gardeners (but excluding persons performing services
not uniformly available to or performed for substantially all Building or
Project tenants); (6) operation and maintenance of a room for delivery and
distribution of mail to tenants of the Building or Project as required by the
U.S. Postal Service (including, without limitation, an amount equal to the
fair market rental value of the mail room premises); (7) management of the
Building or Project, whether managed by Landlord or an independent contractor
(including, without limitation, an amount equal to the fair market value of
any on-site manager's office); (8) rental expenses for (or a reasonable
depreciation allowance on) personal property used in the maintenance,
operation or repair of the Building or Project; (9) costs, expenditures or
charges (whether capitalized or not) required by any governmental or
quasi-governmental authority; (10) amortization of capital expenses
(including financing costs) (i) required by a governmental entity for energy
conservation or life safety purposes, or (ii) made by Landlord to reduce
Project Operating Costs; and (11) any other costs or expenses incurred by
Landlord under this Lease and not otherwise reimbursed by tenants of the
Project. If at any time during the Term, less than eighty-five percent (85%)
of the Rentable Area of the Project is occupied, the "operating costs"
component of Project Operating Costs shall be adjusted by Landlord to
reasonably approximate the operating costs which would have been incurred if
the Project had been at least eighty-five percent (85%) occupied.
2) Tenant's Proportionate Share of Project Operating Costs shall be payable by
Tenant to Landlord as follows:
(a) Beginning with the calendar year following the Base Year and for each
calendar year thereafter ("Comparison Year"), Tenant shall pay Landlord an
amount equal to Tenant's Proportionate Share of the Project Operating Costs
incurred by Landlord in the Comparison Year which exceeds the total amount of
Project Operating Costs payable by Landlord for the Base Year. This excess is
referred to as the "Excess Expenses."
(b) To provide for current payments of Excess Expenses, Tenant shall, at
Landlord's request, pay as additional rent during each Comparison Year, an
amount equal to Tenant's Proportionate Share of the Excess Expenses payable
during such Comparison Year, as estimated by Landlord from time to time. Such
payments shall be made in monthly installments, commencing on the first day
of the month following the month in which Landlord notifies Tenant of the
amount it is to pay hereunder and continuing until the first day of the month
following the month in which Landlord gives Tenant a new notice of estimated
Excess Expenses. It is the intention hereunder to estimate from time to time
the amount of the Excess Expenses for each Comparison Year and Tenant's
Proportionate Share thereof, and then to make an adjustment in the following
year based on the actual Excess Expenses incurred for that Comparison Year.
(c) On or before April 1 of each Comparison Year after the first Comparison
Year (or as soon thereafter as is practical), Landlord shall deliver to
Tenant a statement setting forth Tenant's Proportionate Share of the Excess
Expenses for the preceding Comparison Year. If ▇▇▇▇▇▇'s Proportionate Share
of the actual Excess Expenses for the previous Comparison Year exceeds the
total of the estimated monthly payments made by Tenant for such year, Tenant
shall pay Landlord the amount of the deficiency within ten (10) days of the
receipt of the statement. If such total exceeds Tenant's Proportionate Share
of the actual Excess Expenses for such Comparison Year, then Landlord shall
credit against ▇▇▇▇▇▇'s next ensuing monthly installment(s) of additional
rent an amount equal to the difference until the credit is exhausted. If a
credit is due from Landlord on the Expiration Date, Landlord shall pay Tenant
the amount of the credit. The obligations of Tenant and Landlord to make
payments required under this Section 5.3 shall survive the Expiration Date.
(d) Tenant's Proportionate Share of Excess Expenses in any Comparison Year
having less than 365 days shall be appropriately prorated.
(e) If any dispute arises as to the amount of any additional rent due
hereunder, Tenant shall have the right after reasonable notice and at
reasonable times to inspect Landlord's accounting records at Landlord's
accounting office and, if after such inspection Tenant still disputes the
amount of additional rent owed, a certification as to the proper amount shall
be made by Landlord's certified public accountant, which certification shall
be final and conclusive. ▇▇▇▇▇▇ agrees to pay the cost of such certification
unless it is determined that ▇▇▇▇▇▇▇▇'s original statement overstated Project
Operating Costs by more than five percent (5%).
(3)
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(f) If this Lease sets forth an Expense Stop at Section 2f, then during
the lease, Tenant shall be liable for Tenant's Proportionate
Share of any actual Project Operating Costs which exceed the amount of
the Expense Stop. Tenant shall make current payments of such excess
costs during the Term in the same manner as is provided for payment of
Excess Expenses under the applicable provisions of Section 5.3b(2)(b)
and (c) above.
5.4 Definition of Rent. All costs and expenses which ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇. 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 fails 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 ▇▇▇▇▇▇.
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.
▇▇▇▇▇▇ agrees to deposit with Landlord the Security Deposit set forth at
Section 2.0 upon execution of this Lease, as security for ▇▇▇▇▇▇'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)
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comply with the provisions or 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, or on 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, ▇▇▇▇▇▇▇▇ 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 outlets 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 meter in the Premises to measure the amount of water or electric
current consumed. The cost of any such meter and of its installation,
maintenance and repair shall be paid for by the Tenant and ▇▇▇▇▇▇ agrees to pay
to Landlord promptly upon demand for all such water and electric current
consumed as shown by said meters, at the rates charged for such services by the
local public utility plus any additional expense incurred in keeping account of
the water and electric current so consumed. If a separate meter is not
installed, the excess cost for such water and electric current shall be
established by an estimate made by a utility company or electrical engineer
hired by Landlord at Tenant's expense.
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 elevator service, 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.
▇▇▇▇▇▇'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 ▇▇▇▇▇▇ 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)
7
(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 ▇▇▇▇▇▇ 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 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 ▇▇▇▇▇▇▇▇'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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇'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.
▇▇▇▇▇▇▇▇'s consent may be conditioned on ▇▇▇▇▇▇'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 ▇▇▇▇▇▇▇▇'s option,
require that any such work be performed by ▇▇▇▇▇▇▇▇'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
▇▇▇▇▇▇▇▇'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 ▇▇▇▇▇▇▇▇'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 Premises 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)
8
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 ▇▇▇▇▇▇'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
▇▇▇▇▇▇'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 ▇▇▇▇▇▇'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)
9
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 acceptanace of Rent by Landlord from any other
person shall not be deemed to be a waiver by Landlord of any provision
thereof. Consent to one assignment or subletting's 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 ▇▇▇▇▇▇
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
▇▇▇▇▇▇ took possession, except for (i) reasonable wear and tear, (ii) loss
by fire or other casualty, and (iii) loss by condemnation. Tenant shall, on
▇▇▇▇▇▇▇▇'s request, remove ▇▇▇▇▇▇'s Property on or before the Expiration
Date and promptly repair all damage to the Premises or Building caused by
such removal.
b. If ▇▇▇▇▇▇ 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 bill 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 ▇▇▇▇▇▇'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) 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 the 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 ▇▇▇▇▇▇'s Proportionate Share shall be equitably adjusted
according to the remaining Rentable Area of the Premises and Project.
(8)
10
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 ▇▇▇▇▇▇'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 or 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 ▇▇▇▇▇▇▇▇'s execution of this Lease,
▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇, and at ▇▇▇▇▇▇▇▇'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 (20) days written notice to Landlord and ▇▇▇▇▇▇▇▇'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 ▇▇▇▇▇▇ 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, ▇▇▇▇▇▇▇▇'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 given 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 from 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 ▇▇▇▇▇▇ cannot mutually agree upon
the amounts of said increases, then ▇▇▇▇▇▇ 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)
11
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 ▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇ 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 not uncured defaults in Landlord's
performance and that Tenant has no right to 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 ▇▇▇▇▇▇ 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, or 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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇▇▇'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 ▇▇▇▇▇▇'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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ 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)
13
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 ▇▇▇▇▇▇▇▇'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 or occupancy of the Premises, excluding structural changes not related to
or affected by Tenant's improvements 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 ▇▇▇▇▇▇'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
bill 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 ▇▇▇▇▇▇▇▇'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 ▇▇▇▇▇▇▇▇.
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 ▇▇▇▇▇▇. 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 charge or amendment is requested.
(12)
14
f. Choice 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, ▇▇▇▇▇▇'s only remedies therefor shall be an action for specific
performance, injunction or declaratory judgment to enforce any right to such
consent, etc.
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 ▇▇▇▇▇▇▇▇'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 ▇▇▇▇▇▇▇▇ to enter into this Lease ▇▇▇▇▇▇ agrees that it shall promptly
furnish Landlord, from time to time, upon ▇▇▇▇▇▇▇▇'s written request, with
financial statements reflecting ▇▇▇▇▇▇'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. ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇, 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.
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.
▇▇▇▇▇▇▇▇'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 ▇▇▇▇▇▇.
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: 9/21/92 Date: 8/14/92
-------------------------------- ----------------------------------
Landlord: Hacienda Park Associates, Tenant: Pro Business Payroll,
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a California General a California Corporation
Partnership
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ------------------------------------
Title: Vice President Title: President CEO
------------------------------- ---------------------------------
By: By:
---------------------------------- ------------------------------------
Title: 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)
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THIS ADDENDUM IS MADE A PART OF
THE OFFICE BUILDING LEASE
DATED AUGUST 12, 1992
BY AND BETWEEN HACIENDA PARK ASSOCIATES,
A CALIFORNIA GENERAL PARTNERSHIP ("LESSOR") AND
PRO BUSINESS PAYROLL, A CALIFORNIA CORPORATION ("LESSEE"):
38. REMOVAL OF TENANT'S FURNITURE AND FIXTURES:
Tenant agrees, at its sole cost and expense, to remove all furniture and
fixtures to accommodate tenant improvement construction. In the event
Tenant fails to do so, Landlord shall move Tenant's furniture and charge
Tenant for the cost associated with doing so.
39. NOTIFICATION OF AVAILABLE SPACE:
In the event space comes available within the building during tenant's
lease term, Landlord shall notify Tenant in writing of the availability.
Landlord shall have no obligation to hold available space off the market
and shall only be obligated to notify Tenant of the availability of the
space.
40. OPTION TO RENEW:
Provided that Tenant is not in default hereunder either at the time of
exercise or at the time the extended term commences, Tenant shall have
the option to extend the Lease for one (1) extended five (5) year term
on the same terms, covenants and conditions provided herein, except that
upon such renewal the monthly base rent due hereunder shall be
determined pursuant to Paragraph B. Tenant shall exercise its option by
giving Landlord written notice ("Option Notice") at least one hundred
eighty (180) days prior to the expiration of the initial term of this
Lease.
B. Option Period Monthly Rent. The Monthly Rent for the Option Period,
which shall include the initial Monthly Rent and all adjustments, shall
be determined as follows:
(i) The parties shall have fifteen (15) days after Landlord receives the
Option Notice within which to agree on the Monthly Rent for the Option
Period based upon the then fair market rental value of the Premises as
defined in Paragraph B (iii). If the parties agree on the Monthly Rent
for the Option Period within fifteen (15) days, they shall immediately
execute an amendment to this Lease stating the Monthly Rent for the
Option Period.
(ii) If the parties are unable to agree on the Monthly Rent for the
Option Period within fifteen (15) days, then, the Monthly Rent for the
Option Period shall be the then current fair market rental value of the
Premises as determined in accordance with Paragraph B (iv).
(iii) The "then fair market rental value of the Premises" shall be
defined to mean the fair market rental value of the Premises as of the
commencement of the Option Period, taking into consideration the uses
permitted under this Lease, the quality, size, design and location of
the Premises, and the rent for comparable buildings located in
Pleasanton. In no event shall the fair market monthly value of the
Premises for the Option Period be less than the Monthly Rent last
payable under the Lease.
(iv) Within seven (7) days after the expiration of the fifteen (15) day
period set forth in Paragraph 51.B (ii), each party, at its cost and by
giving notice to the other party, shall appoint a real estate appraiser
with at least five (5) years' full time commercial appraisal experience
in the area in which the Premises are located to appraise and set the
then fair market rental value of the Premises for the Option Period. If
a party does not appoint an appraiser within ten (10) days after the
other party has given notice of the name of its appraiser, the single
appraiser appointed shall be the sole appraiser and shall set the then
fair market rental value of the Premises. If the two (2) appraisers are
appointed by the parties as stated in this paragraph, they shall meet
promptly and attempt to set the then fair market rental value of the
Premises. If they are unable to agree within thirty (30) days after the
second appraiser has been appointed, they shall attempt to elect a third
appraiser meeting the qualifications stated in this paragraph within ten
(10) days after the last day the two (2) appraisers are given to set the
then fair market rental value of the Premises. If they are unable to
agree on the third appraiser, either of the parties to this Lease, by
giving ten (10)
16
days' notice to the other party, can apply to the then President of the
Alameda County Real Estate Board or to the then President Judge of the
Alameda County Superior Court, for the selection of a third appraiser who
meets the qualifications stated in this paragraph. Each of the parties shall
bear one-half (1/2) of the cost of appointing the third appraiser and of
paying the third appraiser's fee. The third appraiser, however selected,
shall be a person who has not previously acted in any capacity for either
party.
Within thirty (30) days after the selection of the third appraiser, a
majority of the appraisers shall set the then fair market value of the
Premises. If a majority of the appraisers are unable to set the then fair
market rental value of the Premises within the stipulated period of time, the
three (3) appraisals shall be added together and their total divided by three
(3); the resulting quotient shall be the then fair market rental value of the
Premises.
If, however, the low appraisal and/or the high appraisal are/is more
than ten percent (10%) lower and/or higher than the middle appraisal, the low
appraisal and/or the high appraisal shall be disregarded. If only one (1)
appraisal is disregarded, the remaining two (2) appraisals shall be added
together and their total divided by two (2); the resulting quotient shall be
the then fair market rental value of the Premises. If both the low appraisal
and the high appraisal are disregarded as stated in this paragraph, the
middle appraisal shall be the then fair market rental value of the Premises.
After the then fair market rental value of the Premises has been set,
the appraisers shall immediately notify the parties and the Monthly Rent for
the Option Period shall be such amount.
Except as expressly provided herein, the Lease shall remain in full force and
effect.
LANDLORD: TENANT:
Hacienda Park Associates Pro Business Payroll
A California General Partnership A California Corporation
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Vice President Its: President CEO
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17
EXHIBIT "A"
GROUND FLOOR PLAN
2ND FLOOR PLAN
SARATOGA ONE
(Two Story)
18
SARATOGA CENTER
SITE 30A
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
EXHIBIT "B"
[SITE MAP]
19
EXHIBIT C
[FLOOR PLAN]
FLOOR PLAN
-------------------------------------------------------------------------------
DATE: 8-12-92
PRO-BUSINESS PAYROLL
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
PLEASANTON, CA
20
27. ▇▇▇▇▇▇'s request for assistance will be attended to only upon
appropriate application to Landlord by an authorized individual. Employees of
Landlord shall not perform any work on the Premises, other than that associated
with the provision of services to Tenant required of Landlord under the Lease
for the Premises, or implement a request of Tenant, unless that employee
receives written instructions from Landlord.
28. Tenant shall not park its vehicles in any parking areas designated by
Landlord as areas for parking by visitors to the Building or other reserved
parking spaces. Tenant shall not leave vehicles in the Building parking areas
overnight, nor park any vehicles in the Building parking areas other than
automobiles, motorcycles, motor driven or non-motor driven bicycles or
four-wheeled trucks. Tenant, its agents, employees and invitees shall not park
any one (1) vehicle in more than one (1) parking space.
29. Landlord may waive any one or more of these Rules and Regulations for
the benefit of Tenant or any other Tenant, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations in favor of Tenant or
any other Tenant, nor prevent Landlord from thereafter enforcing any such Rules
and Regulations against any or all of the tenants of the Building.
30. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of Premises in the Building.
31. Landlord reserves the right to make such other reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for the
safety, security, care and cleanliness of the Building and the Property and the
preservation of good order therein. ▇▇▇▇▇▇ agrees to abide by all such Rules
and Regulations hereinabove stated and any additional rules and regulations
which are published by Landlord.
32. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and guests.
33. The scheduling and manner of all Tenant move-ins and move-outs shall be
subject to the discretion and approval of Landlord, and move-ins and move-outs
shall take place only after 6:00 p.m. on weekdays, on weekends or at other
times as Landlord may designate. Landlord shall have right to approve or
disapprove the movers or moving company employed by Tenant, and Tenant shall
cause the movers to use only the entry doors and elevators designated by
Landlord. If ▇▇▇▇▇▇'s movers damage the elevator or any other part of the
Property, Tenant shall pay to Landlord the amount required to repair the damage.
34. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
35. Canvassing, soliciting, and distribution of handbills or other written
material and peddling in the Building are prohibited and each Tenant shall
cooperate to prevent these activities.
36. As long as Tenant is not in default under any of the terms, covenants,
conditions, provisions or agreements of this Lease, Landlord shall:
(a) On Monday through Friday, except holidays, from 7:00 a.m. to
6:30 p.m. (and other times for a reasonable additional charge to be fixed by
Landlord), ventilate the Premises and
Page 4
(Rev. 5/31/88)
(E-Exh)
21
furnish air conditioning or heating on such days and hours when in the judgment
of Landlord it may be required for the comfortable occupancy of the Premises.
After hours usage shall be monitored by the override meter which shall be
installed in the Premises and the actual cost of such usage shall be paid by
Tenant.
(b) Furnish to the Premises, Monday through Friday, from 7:30 a.m.
to 6:30 p.m., electric current as required by the Building Standard office
lighting and fractional horsepower office business machines in the amount of
approximately two and one-half (2.5) ▇▇▇▇▇ per square foot. Tenant agrees,
should its electrical installation or electrical consumption be in excess of
the aforesaid quantity or extend beyond normal business hours, to reimburse
Landlord monthly for the measured consumption at the terms, classifications and
rate charges to similar consumers by the public utility serving the
neighborhood in which the Building is located.
Page 5
(Rev. 5/31/88)
(E-Exh)
22
SECOND AMENDMENT TO LEASE
This Amendment dated this 4th day of February, 1992, between Hacienda Park
Associates, a California General Partnership ("Landlord"), and Pro Business
Payroll, a California Corporation, ("Tenant"), for the premises located in the
City of Pleasanton, County of Alameda, State of California, commonly known as
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇.
1. RECITALS. Landlord and Tenant being parties to that certain Lease
dated April 17, 1990, hereby express their mutual desire and intent to
amend by this writing those terms, covenants and conditions contained in
Paragraph 1.7. MONTHLY RENT as hereinafter provided.
2. AMENDMENTS. 1.7. MONTHLY RENT shall hereinafter additionally provide
as follows:
Operating Expense
PERIOD Base Rent Base (yr-1990) Total
------ --------- ----------------- -----
12/15/91-04/26/92 $2,667.71 $3,431.68 $6,099.39
04/27/92-10/14/92 $3,961.52 $3,431.68 $7,393.20
3. INCORPORATION. Except as modified herein, all other terms and
conditions of the Lease between the parties above described shall continue
in full force and effect.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ have executed the Amendment as of the
day and year first written above.
Landlord: Tenant:
HACIENDA PARK ASSOCIATES, a PRO BUSINESS PAYROLL, a
California General Partnership California Corporation
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- -------------------------------
Its: Vice President Its: President
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23
FIRST ADDENDUM TO LEASE
That certain ▇▇▇▇▇ dated April 17, 1990 by and between Hacienda Park
Associates, a California General Partnership ("Landlord"), and Pro Business
Payroll, a California Corporation ("Tenant") whose address is ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, is hereby amended to reflect the following:
Paragraph 1.3. Premises: Commencing December 15, 1991 and ending October 14,
1992, Tenant leases an additional 1,852 sq.ft. known as Suite
105 (additional Premises), more particularly described in
"Exhibit G" attached hereto. The total leased square footage is
6,161.
Paragraph 1.7. Monthly Rent:
Period Total Monthly Rent
------ ------------------
Dec. 15, 1991 - April 26, 1992 $6,099.39
April 27, 1992 - Oct. 14, 1992 $7,393.20
Paragraph 1.10. Tenant's Building Percentage: The Tenant's building percentage
shall be modified to 14.73 percent.
Paragraph 1.11. Tenant's Project Percentage: Tenant's project percentage shall
be modified to 7.43 percent.
Paragraph 1.13. Broker(s) CB Commercial Real Estate Group, Inc.
Paragraph 43. Tenants Right To Terminate Additional Premises: Should space
contiguous to Suite 201 become available prior to October 14,
1992, Tenant shall have the right to terminate the lease on
Suite 105 and relocate to the available contiguous space for the
balance of the base lease term described in Paragraph 1.5 of the
lease. The monthly rental rate for the contiguous space shall be
based on the monthly rental schedule per square foot as
described in Paragraph 1.7.1. of the lease.
The Landlord shall provide a tenant improvement allowance of not
to exceed $10.00 per useable square foot for said available
contiguous space.
All other terms and conditions of the original lease shall remain unchanged and
in full force and effect.
Landlord: Tenant:
HACIENDA PARK ASSOCIATES PRO BUSINESS PAYROLL
a California General Partnership a California Corporation
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- -----------------------------
Its: Vice President Its: President CEO
----------------------------- -----------------------------
24
EXHIBIT G
[FLOOR PLAN]
25
LEASE TERMINATION AGREEMENT
Upon occupancy of the Premises described in that certain Lease dated August 12,
1992 by and between Pro Business Payroll, a California corporation ("Tenant")
and Hacienda Park Associates, a California general partnership ("Landlord"),
the lease dated April 17, 1990 and amended by the first, second and third
amendments between the parties described herein shall be null and void and of
no further effect. Tenant's Security Deposit in the amount of Six Thousand Two
Hundred Forty Eight and no/100 dollars ($6,248.00) shall be transferred to
Tenant's new lease dated August 12, 1992.
LANDLORD TENANT
HACIENDA PARK ASSOCIATES, Pro Business Payroll
a California General Partnership a California Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- ------------------------
Its: Vice President Its: President CEO
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26
FIRST AMENDMENT TO LEASE
This First Amendment to Lease ("Amendment") is entered into this 23rd day of
March, 1994 and amends that certain Lease by and between HACIENDA PARK
ASSOCIATES, a California General Partnership, ("Landlord") and PRO BUSINESS
PAYROLL, a California Corporation, ("Tenant") dated August 12, 1992 attached
hereto as Exhibit A.
Now therefore, the parties agree as follows:
Expiration Date: March 31, 1999
Monthly Installments of Base Rent: Mos. 01 - 09: $14,047.20
Mos. 10 - 15: $15,803.10
Mos. 16 - 78: $16,973.70
All other terms and conditions of the Lease between the parties shall
remain in full force and effect.
LANDLORD TENANTS
HACIENDA PARK ASSOCIATES PRO BUSINESS PAYROLL
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------- ---------------------------
Its: Vice President Its: EVP - OPERATIONS
---------------------------- --------------------------
27
LEASE TERMINATION AGREEMENT
Upon occupancy of the Premises described in that certain Lease dated August 12,
1992 by and between Pro Business Payroll, a California corporation ("Tenant")
and Hacienda Park Associates, a California general partnership ("Landlord"),
the lease dated April 17, 1990 and amended by the first, second and third
amendments between the parties described herein shall be null and void and of
no further effect. Tenant's Security Deposit in the amount of Six Thousand Two
Hundred Forty Eight and no/100 dollars ($6,248.00) shall be transferred to
Tenant's new lease dated August 12, 1992.
LANDLORD TENANT
HACIENDA PARK ASSOCIATES, Pro Business Payroll
a California General Partnership a California Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- ------------------------
Its: Vice President Its: President CEO
---------------------------- -----------------------
▇▇
▇▇▇▇▇ ▇▇▇
SECOND AMENDMENT TO LEASE
This Second Amendment to Lease ("Amendment") is entered into this 9th day of
December, 1994 and amends that certain Lease by and between Hacienda Park
Associates, a California General Partnership, ("Landlord") and Pro Business
Payroll, a California Corporation, ("Tenant"), dated August 12, 1992 as amended
by the First Amendment to Lease dated March 23, 1994 attached hereto as Exhibit
A.
Now therefore, the parties agree as follows:
1. PREMISES: Commencing July 1, 1995, the rentable square footage shall
be increased by 5,259 square feet to a total of 16,965 square feet by
adding the space known as Suite 206, as defined on Exhibit E attached
hereto, to tenant's existing Premises.
2. MONTHLY RENT: Effective July 1, 1995 the monthly rental rate shall
increase by $7,152.24 per month.
3. OPERATING EXPENSES: The base year operating expenses for Suite 206
shall be 1995.
4. TENANT'S PROPORTIONATE SHARE: Upon completion of tenant improvements,
▇▇▇▇▇▇'s proportionate share of the building containing the Premises
shall be 40.73% Such share is a fraction, the numerator of which is
the Rentable Area of the Premises, and the denominator of which is the
Gross Area of the Building (Building A), as determined by the Landlord
from time to time. The Building consists of 41,656 square feet.
Tenant's proportionate share of the Project shall be 20.37%. The
Project's land value, related assessments and Outside Area Expenses
are allocated 50.01% to Building A and 49.99% to Building B. Tenant's
share is a product of Tenant's Building share multiplied by Building
A's share of the Project. The Project consists of two buildings
containing a total Rentable Area of 83,230 square feet.
5. TENANT IMPROVEMENT ALLOWANCE: The Landlord shall contribute up to
$21,036 to complete modifications to the space, which includes all
architectural costs and permit fees.
6. CONTINGENCY: This Second Amendment to Lease is contingent upon
Future Innovations executing a termination agreement with the Landlord
and vacating Suite 206. Landlord to give notice to Tenant on or
before March 3, 1995 of Future Innovations intent to terminate its
lease and to vacate Suite 206 by June 1, 1995. Failure of Future
Innovations to provide intent to terminate by 3/3/95 nullifies this
amendment.
All other terms and conditions of the Lease between the parties shall remain in
full force and effect.
LANDLORD TENANT
Hacienda Park Associates, Pro Business Payroll
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------- ------------------------
Its: Vice President Its: EVP - OPERATIONS
---------------------------- -----------------------
Date: 12/20/94 Dated: 12/12/94
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29
THIRD AMENDMENT TO LEASE
This Third Amendment to Lease ("Amendment") is entered into this 16th day of
March, 1995 and amends that certain Lease by and between Hacienda Park
Associates, a California General Partnership, ("Landlord") and Pro Business
Payroll, a California Corporation, ("Tenant"), dated August 12, 1992 as amended
by the Second Amendment to Lease dated December 9, 1994, as amended by the
First Amendment to Lease dated March 23, 1994 attached hereto as Exhibit A.
Now therefore, the parties agree as follows:
6. CONTINGENCY: This Third Amendment to Lease is contingent upon
Future Innovations executing a termination agreement
with the Landlord and vacating Suite 206. Landlord
to give notice to Tenant on or before March 24, 1995 by 5:00
P.M. PST. of Future Innovations intent to terminate its lease
and to vacate Suite 206 by June 1, 1995. Failure of Future
Innovations to provide intent to terminate by 3/21/95 nullifies
this Amendment.
All other terms and conditions of the Lease between the parties shall remain in
full force and effect.
LANDLORD TENANT
Hacienda Park Associates Pro Business Payroll
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- ------------------------
Its: VP Its: EVP-Operations
----------------------- ------------------------
Dated: 3/20/95 Dated: 3/17/95
---------------------- -----------------------