EXHIBIT 10.5
OFFICE BUILDING LEASE
Between
VILLAGE PLAZA ASSOCIATES, LLC, Landlord
And
SCOOP, INC., Tenant
Premises:
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Carnegie Centre
LEASE AGREEMENT
THIS LEASE, dated September 9, 1996, between VILLAGE PLAZA ASSOCIATES, LLC
a California limited liability company ("Landlord"), and SCOOP, INC., a
California corporation ("Tenant").
1. LEASE OF PREMISES. In consideration of the Rent, as defined in
Section 5.4 below, and the other terms and provisions of this Lease, Landlord
leases to Tenant and Tenant leases from Landlord the Premises described in
Section 2(k) below. The Premises are located within the Building and Project
described in Section 2(m) below. Tenant shall have the non-exclusive right
(unless otherwise provided herein) in common with Landlord, other tenants,
subtenants and invitees, to the use of the Common Areas defined in Section 2(e)
below.
2. DEFINITIONS. As used in this Lease, the following terms shall have
the following meanings:
(a) BASE RENT (INITIAL): $87,480.00 per year.
(b) BASE YEAR: Calendar year 1996.
(c) BROKER(S): For Landlord: ▇▇▇▇▇ & ▇▇▇▇▇ Company; for Tenant:
▇▇▇▇▇ & ▇▇▇▇▇ Company. In the event that ▇▇▇▇▇ & ▇▇▇▇▇ Company represents both
Landlord and Tenant, Landlord and Tenant hereby confirm that they were timely
advised of the dual representation and that they consent to the same, and that
they do not expect said broker to disclose to either of them the confidential
information of the other party.
(d) ESTIMATED COMMENCEMENT DATE: October 15, 1996, subject to the
provisions of Article 4 below.
(e) COMMON AREAS: The building lobbies, common corridors and
hallways, restrooms, garage and parking areas, stairways, landscaped areas,
sidewalks, driveways, monument signage, service quarters, walls, fire stairs,
telephone and electric closets, aisles, truck docks, plazas, service areas, and
all other areas and facilities around the Premises and within the exterior
boundaries of the Property which are provided for the general use and
convenience of Tenant, other tenants and subtenants of the Project and their
respective employees, invitees and other visitors. Landlord shall have the
right to establish and enforce reasonable rules and regulations concerning the
maintenance and use of the Common Areas, provided that such rules and
regulations shall not materially impair or interfere with Tenant's use of,
business operations at or access to the Premises.
(f) EXPIRATION DATE: September 30, 2000, unless otherwise sooner
terminated in accordance with the provisions of this Lease.
(g) LANDLORD'S MAILING ADDRESS: Village Plaza Associates, ▇▇▇ ▇▇▇▇
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TENANT'S MAILING ADDRESS: ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(i) MONTHLY INSTALLMENTS OF BASE RENT (INITIAL): As set forth on the
attached EXHIBIT E.
(j) PARKING: Tenant shall be permitted to park, free of charge,
twenty-five (25) cars on a non-exclusive basis in the area(s) of the Project
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, provided, however, that Tenant's parking shall be free of
charge throughout the Term. Landlord reserves the right to separately charge
Tenant's guests and visitors for parking.
(k) PREMISES: That portion of the Building containing approximately
6339 square feet of Rentable Area, shown by diagonal lines on Exhibit "A,"
located on the first floor of the Building and known as Suite 100.
(l) RENT: As defined in Section 5.4 below.
(m) PROJECT: The building of which the Premises are a part (the
"Building") and any other buildings or improvements on the real property (the
"Property") located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and
further described in Exhibit "B" attached. The Project is known as Carnegie
Centre.
(n) RENTABLE AREA: As to both the Premises and the Project, the
respective measurements of floor area as may from time to time be subject to
lease by Tenant and all tenants of the Project, respectively, as determined by
Landlord and applied on a consistent basis throughout the Project.
(o) SECURITY DEPOSIT (ARTICLE 7): $ 8,241.00.
(p) STATE: The State of California.
(q) TENANT'S PROPORTIONATE SHARE: 17.6%. 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 Landlord from
time to time. The Project consists of one building containing a total Rentable
Area of 36,117 square feet.
(r) TENANT'S USE (ARTICLE 8): General office use, publishing
services and the electronic collection and distribution (through the Internet
and other channels) of business information.
(s) TERM: Approximately four (4) years, commencing on the
Commencement Date and expiring at midnight on the Expiration Date.
3. EXHIBITS AND ADDENDA. The exhibits and addenda listed below are
incorporated by reference in this Lease:
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(a) EXHIBIT "A": Floor Plan showing the Premises.
(b) EXHIBIT "B": Site Plan of the Project.
(c) EXHIBIT "C": Building Standard Work Letter.
(d) EXHIBIT "D": Rules and Regulations.
(e) EXHIBIT "E": Addendum
(f) SCHEDULE 1: Exclusions from Project Operating Costs
4. DELIVERY OF POSSESSION. Landlord shall use reasonable efforts to
complete Landlord's Initial Work as soon as reasonably possible after the
execution of this Lease. Tenant shall have the right to enter upon and possess
the Premises upon Landlord's completion of Landlord's Initial Work for the
purpose of commencing Tenant's fixturizing, furniture and equipment installation
in and to the Premises and commencing business operations at the Premises.
Such early entry shall not affect the Commencement Date; PROVIDED, HOWEVER, that
if Landlord does not complete Landlord's Initial Work, as defined in Exhibit
"C", by September 16, 1996, the Commencement Date shall occur thirty (30) days
after Landlord completes Landlord's Initial Work. Landlord shall use reasonable
efforts to complete "Landlord's Additional Work" as defined in Exhibit "C" on
or before the Commencement Date. If for any reason Landlord does not deliver
possession of the Premises to Tenant by September 16, 1996, or complete
Landlord's Additional Work by 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. "Delivery of possession"
shall be deemed to occur on the date Landlord completes Landlord's Initial Work
as defined in Exhibit "C." Any early possession by Tenant pursuant to this
Article 4 shall be subject to the provisions of this Lease, other than the
payment of Rent.
5. RENT.
5.1 PAYMENT OF BASE RENT. Tenant agrees to pay the Base Rent for the
Premises during the Term. Monthly Installments of Base Rent shall be payable
in advance on the first day of each calendar month of the Term. If the Term
begins (or ends) on other than the first (or last) day of a calendar month, the
Base Rent for the partial month shall be prorated on a per diem basis. Tenant
shall pay Landlord the first Monthly Installment of Base Rent when Tenant
executes the Lease.
5.2 INTENTIONALLY OMITTED
5.3 PROJECT OPERATING COSTS.
(a) In order that the Rent payable during the Term reflect any
increase in Project Operating Costs, Tenant agrees to pay to Landlord as
additional Rent, Tenant's Proportionate Share of all increases in Project
Operating Costs, as provided below.
(b) If, during any calendar year of 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
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Proportionate Share of such excess Project Operating Costs in accordance with
the provisions of this Section 5.3(b).
(1) The term "Project Operating Costs" shall mean all those
items described in the following subparagraphs (a) and (b).
(a) All taxes, assessments, water and sewer charges
and other similar governmental charges levied on or attributable to the Building
or Project or their operation, including without limitation, (i) real properly
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 ninety percent (90%) 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 it the Project
were completed and at least ninety percent (90%) 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
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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) required, in the Landlord's reasonable judgment,
for the proper operation of the Building and Project, including without
limitation those (i) required by a governmental entity for energy
conservation or life safety purposes, or (ii) made by Landlord to reduce
Project Operating Costs; and (iii) 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 ninety percent (90%) 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 ninety percent (90%) occupied.
(2) Tenant's Proportionate Share of increases in 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 amount
by which the total Project Operating Costs incurred by Landlord for the
Comparison Year exceeds the total Project Operating Costs incurred 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
estimated Excess Expenses payable during such Comparison Year. Any request by
the Landlord for Tenant to make current payments of estimated Excess Expenses or
to increase such estimated Excess Expenses for any Comparison Year shall be
accompanied by a written statement or statements showing in reasonable detail
(i) Landlord's reasonable estimate of the Project Operating Costs for the
applicable Comparison Year and (ii) the actual Project Operating Costs for the
Base Year. 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 written statement or statements setting forth in
reasonable detail the actual Project Operating Costs for the preceding
Comparison Year and the Base Year and Tenant's Proportionate Share of the Excess
Expenses for the preceding Comparison Year. If Tenant'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 of estimated monthly payments exceeds Tenant's
Proportionate Share of the
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actual Excess Expenses for such Comparison Year, then Landlord shall credit
against Tenant's next ensuing monthly installments(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. Tenant agrees to pay the cost of such
certification unless it is determined that Landlord's original statement
overstated Project Operating Costs by more than five percent (5%).
(f) Notwithstanding anything in this Lease to the
contrary, (i) Tenant shall not be required to pay as additional rent hereunder
any Excess Expenses for the initial twelve (12) months of the Term (it being
understood that Tenant's Proportionate Share of any Excess Expenses for
Comparison Year 1997 shall be prorated based upon the number of days of
Comparison Year 1997 remaining after the expiration of such twelve (12) month
period), (ii) any Project Operating Cost items not included in the Base Year
which are added to the Project thereafter shall be imputed into the Base Year;
and (iii) Project Operating Costs shall not include any of the items set forth
on Schedule 1 attached hereto.
5.4 DEFINITION OF RENT. All costs and expenses which Tenant assumes
or agrees to pay to Landlord under this Lease shall be deemed additional rent
(which, together with the Base Rent is sometimes referred to as the "Rent").
The Rent shall be paid to the Building manager (or other person) and at such
place, as Landlord may from time to time designate in writing, without any prior
demand therefor and without deduction or offset, in lawful money of the United
States of America.
5.5 RENT CONTROL. If the amount of Rent or any other payment due
under this Lease violates the terms of any governmental restrictions on such
Rent or payment, then the Rent or payment due during the period of such
restrictions shall be the maximum amount allowable under those restrictions.
Upon termination of the restrictions, Landlord shall, to the extent it is
legally permitted, recover from Tenant the difference between the amounts
received during the period of the restrictions and the amounts Landlord would
have received had there been no restrictions.
5.6 TAXES PAYABLE BY TENANT. In addition to the Rent and any other
charges to be paid by Tenant hereunder, Tenant shall reimburse Landlord upon
demand for any and all taxes payable by Landlord (other than net income taxes)
which are not otherwise reimbursable under this Lease, whether or not now
customary or within the contemplation of the parties,
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where such taxes are upon, measured by or reasonably attributable to the cost
or value of Tenant's equipment, furniture, fixtures and other personal
properly 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; and, to the extent actually
imposed by any taxing authority and not otherwise charged by Landlord as
Project Operating Costs (a) 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; (b) the
possession, leasing, operation, management, maintenance, alteration, repair,
use or occupancy by Tenant of the Premises or any portion thereof; or (c)
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 amounts of which are extremely difficult to ascertain.
Therefore, in addition to interest, if any such installment is not received by
Landlord within ten (10) days from the date it is due, Tenant shall pay Landlord
a late charge equal to ten percent (10%) of such installment. Landlord and
Tenant agree that this late charge represents a reasonable estimate of such
costs and expenses and is fair compensation to Landlord for the loss suffered
from such nonpayment by Tenant. Acceptance of any interest or late charge shall
not constitute a waiver of Tenant's default with respect to such nonpayment by
Tenant nor prevent Landlord from exercising any other rights or remedies
available to Landlord under this Lease.
7. SECURITY DEPOSIT. Tenant agrees to deposit with Landlord the Security
Deposit set forth at Section 2(o) upon execution of this Lease, as security for
Tenant's faithful performance of its obligations under this Lease. Landlord and
Tenant agree that the Security Deposit may be commingled with funds of Landlord
and Landlord shall have no obligation or liability for payment of interest on
such deposit. Tenant shall not mortgage, assign, transfer or encumber the
Security Deposit without the prior written consent of Landlord and any attempt
by Tenant to do so shall be void, without force or effect and shall not be
binding upon Landlord. If Tenant defaults in the payment of any Rent or other
amount when due and payable under this Lease, or defaults under any of the other
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,
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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
thirty (30) 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 issued for the Building or the 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[; provided, however, that Landlord shall bear all costs and expenses
for any capital repairs or structural changes to the Project, including the
Premises and the Common Areas, required to comply with the Americans with
Disabilities Act (the "ADA"), Title 24 (California) and any other applicable
laws, rules, regulations, ordinances or directions of any governmental
authorities or agencies over the term of this Lease and any extension period,
unless such costs or expenses are imposed as a result of any work or improvement
or alteration performed by or on behalf of Tenant in or about the Premises,
other than Landlord's Initial Work and Landlord's Additional Work. 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 promptly upon demand reimburse Landlord for any
additional premium charged for such policy by reason of Tenant's failure to
comply with the provisions of this Article. Tenant shall not do or permit
anything to be done in or about the Premises which will in any way obstruct or
interfere with the rights of other tenants or occupants of the Building or
Project, or injure or annoy them, or use or allow the Premises to be used for
any improper, immoral, unlawful or objectionable purpose, nor shall Tenant
cause, maintain or permit any nuisance in, on or about the Premises. Tenant
shall not commit or suffer to be committed any waste in or upon the Premises.
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9. SERVICES AND UTILITIES. Landlord agrees to furnish to the Premises
and subject to the Rules and Regulations of the Building or Project, water and
electricity for normal computer and desk top office equipment and normal copying
equipment twenty-four (24) hours per day, seven (7) days per week throughout the
Term, and heating, ventilation and air conditioning ("HVAC") as required for the
comfortable use and occupancy of the Premises from the hours of 8:00 a.m. to
6:00 p.m., Monday through Friday, and Saturdays from 8:00 a.m. to 1:00 p.m.,
excluding Holidays. 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 actual out of pocket costs therefor on
demand as additional rent hereunder. 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. Unless due to Landlord's gross negligence or
willful misconduct, 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.
Notwithstanding anything in this Lease to the contrary, in the event of failure
or interruption in the furnishing of utilities or services to the Premises,
Landlord will take all reasonable steps to restore the interrupted utilities or
services. If, due to any interruption in the furnishing of utilities or
services, Tenant's use of the Premises is materially interfered with for five
(5) consecutive days or ten (10) days in any month, then Tenant's rent shall be
reduced to the extent of any rental interruption insurance proceeds actually
received by Landlord in connection with any such interruption. 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 as additional rent
hereunder.
Tenant shall not, without the written consent of Landlord, use any
apparatus or device in the Premises 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. Landlord reserves the right
to charge Tenant for any such excess if, based upon comparable usage for other
Tenant's of the Building, Tenant has, in Landlord's reasonable business
judgment, consumed excessive amounts of electricity in any given month. 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 (as determined by Landlord), without first procuring the
written consent of Landlord, which Landlord may refuse in Landlord's sole and
absolute discretion.
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Landlord shall furnish elevator service, janitorial service, lighting
replacement for building standard lights, restroom supplies, and window washing
in a manner that such services are customarily furnished to comparable office
buildings in the area.
10. CONDITION OF THE PREMISES. Tenant's taking possession of the Premises
shall be deemed conclusive evidence that as of the date of taking possession the
Premises are in good order and satisfactory condition, except for such matters
as to which Tenant gave Landlord notice on or before the Commencement Date. No
promise of Landlord to alter, remodel, repair or improve the Premises, the
Building or the Project and no representation, express or implied, respecting
any matter or thing relating to the Premises, Building, Project or this Lease
(including, without limitation, the condition of the Premises, the Building or
the Project) have been made to Tenant by Landlord or its Broker or Sales Agent,
other than as may be contained herein or in a separate exhibit or addendum
signed by Landlord and Tenant.
11. CONSTRUCTION, REPAIRS AND MAINTENANCE.
(a) LANDLORD'S OBLIGATIONS. Landlord shall perform Landlord's
Initial Work and Landlord's Additional Work to the Premises as described in
Exhibit "C." Except as otherwise set forth in this Lease, Landlord shall
maintain in good order, condition and repair the Building, including without
limitation the Common Areas, the building exterior, all interior windowsthe
Building systems providing the services and utilities to be provided by Landlord
pursuant to Article 9 hereof (including all plumbing, pipes and fixtures,
electrical wiring and switches) and all other portions of the Premises and the
Project not the obligation of Tenant or of any other tenant in the Building.
(b) TENANT'S OBLIGATIONS.
(1) Intentionally omitted.
(2) Tenant at Tenant's sole expense shall, except for services
furnished by Landlord pursuant to Article 9 and 11(a) hereof, maintain the
Premises in good order, condition and repair, including the interior surfaces of
the ceilings, walls, floors and doors, and, if the need for such repair or
maintenance arises out of the misuse or negligence of Tenant, its agents,
contractors, employees or invitees, 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) the installation or removal of
Tenant's Property (as defined in Article 13) in or from the Premises, (ii) the
moving of Tenant's Property into or out of the Building, or (iii) the act,
omission, misuse or negligence of Tenant, its agents, contractors, employees or
invitees.
(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
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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 such amounts were
expended by Landlord, but not to exceed the maximum rate then allowed by law.
Landlord shall have no liability to Tenant for any damage, inconvenience, or
interference with the use of the Premises by Tenant as a result of performing
any such work.
(c) COMPLIANCE WITH LAW. Landlord and Tenant shall each do all acts
required to comply with all applicable laws, ordinances, and rules of any public
authority relating to their respective maintenance obligations as set forth
herein.
(d) LOAD AND EQUIPMENT LIMITS. Tenant shall not place a load upon
any floor of the Premises which exceeds the load per square foot which such
floor was designed to carry, as determined by Landlord or Landlord's structural
engineer. The cost of any such determination made by Landlord's structural
engineer shall be paid for by Tenant upon demand. Tenant shall not install
business machines or mechanical equipment which cause noise or vibration to such
a degree as to be objectionable to Landlord or other Building tenants.
(e) Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant nor shall Tenant's obligations under this
Lease be reduced or abated in any manner whatsoever by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or permitted
by this Lease or by any other tenant's lease or required by law to make in or to
any portion of the Project, Building or the Premises. Landlord shall
nevertheless use reasonable efforts to minimize any interference with Tenant's
business in the Premises.
(f) 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.
12. ALTERATIONS AND ADDITIONS.
(a) Tenant shall not make any additions, alterations or improvements
to the Premises (except for cosmetic or decorative items or interior,
non-structural alteration to the Premises) without obtaining the prior written
consent of Landlord which may be granted or withheld in Landlord's sole and
absolute discretion. Without limiting the grounds on which the Landlord may
withhold its consent, Landlord's consent may be conditioned on Tenant's removing
any such additions, alterations or improvements upon the expiration of the Term
and restoring the Premises to the same condition as on the date Tenant took
possession. All work with respect to any addition, alteration or improvement
shall be done in a good and workmanlike manner by properly qualified and
licensed personnel approved by Landlord, and such work shall be diligently
prosecuted to completion. Landlord may, at Landlord's option, require that any
such work be performed by Landlord's contractor, in which case the cost of such
work shall be paid for before commencement of the work. Tenant shall pay to
Landlord upon completion of any such work by Landlord's contractor, an
administrative fee of ten percent (10%) of the cost of the work.
Notwithstanding the foregoing, Landlord's Initial Work and Landlord's Additional
Work shall be governed exclusively by Exhibit "C" attached.
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(b) Tenant shall pay the costs of any work done on the Premises
pursuant to Section 12(a), and shall keep the Premises, Building and Project
free and clear of liens of any kind. Tenant shall indemnify, defend against and
keep Landlord free and harmless from all liability, loss, damage, costs,
attorneys' fees and any other expense incurred on account of claims by any
person performing work or furnishing materials or supplies for Tenant or any
person claiming under Tenant.
Tenant shall keep Tenant's leasehold interest, and any additions
or improvements which are or become the property of Landlord under this Lease,
free and clear of all attachment or judgment liens. Before the actual
commencement of any work for which a claim or lien may be filed, Tenant shall
give Landlord notice of the intended commencement date a sufficient time before
that date to enable Landlord to post notices of non-responsibility or any other
notices which Landlord deems necessary for the proper protection of Landlord's
interest in the Premises, Building or the Project, and Landlord shall have the
right to enter the Premises and post such notices at any reasonable time.
(c) Landlord may require, at Landlord's sole option, that Tenant
provide to Landlord, at Tenant's expense, a lien and completion bond in an
amount equal to at least the total estimated cost of any additions, alterations
or improvements to be made in or to the Premises for which Landlord's consent is
required pursuant to this Article 12, 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 12(c) shall relieve Tenant of its
obligation under Section 12(b) to keep the Premises, Building and Project free
of all liens.
(d) Unless their removal is required by Landlord as provided in
Section 12(a), all additions, alterations and improvements made to the Premises
shall become the property of Landlord and shall 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
and all other Tenant's Property (as defined in Section 13(b) below) shall remain
the property of Tenant and may be removed, subject to the provisions of Section
13(b).
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 13(b).
(b) All movable partitions, business and trade fixtures, machinery
and equipment, including, without limitation, communications equipment, computer
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 or leased 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
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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" as the same may be reasonably
modified by Landlord from time to time. 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 (i) damage or injury to
property, person or business, (ii) causing an actual or constructive eviction
from the Premises, or (iii) disturbing Tenant's use or possession of the
Premises:
(a) To name the Building and Project and to change the name or street
address of the Building or Project;
(b) To install and maintain all signs on the exterior and interior of
the Building and Project;
(c) To have pass keys to the Premises and all doors within the
Premises, excluding Tenant's vaults and safes;
(d) At any time during the Term, and on reasonable prior notice to
Tenant, to inspect the Premises, and to show the Premises to any prospective
purchaser or mortgagee of the Project, or to any assignee of any mortgage on the
Project, or to others having an interest in the Project or Landlord, and during
the last six (6) months of the Term, to show the Premises to prospective tenants
thereof;
(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 under the particular
circumstances to minimize interference with Tenant's business in the Premises in
the course of any such entry.
16. ASSIGNMENT AND SUBLETTING. No assignment of this Lease or sublease of
all or any part of the Premises shall be permitted, except as provided in this
Article 16.
(a) Tenant shall not, without the prior written consent of Landlord,
assign or hypothecate this Lease or any interest herein or sublet the Premises
or any part thereof, or permit the use of the Premises by any party other than
Tenant. Any of the foregoing acts without such consent shall be void and shall,
at the option of Landlord, terminate this Lease. This Lease shall not, nor
shall any interest of Tenant herein, be assignable by operation of law
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without the written consent of Landlord. Notwithstanding anything in this
Lease to the contrary, Landlord's consent shall not be required for an
assignment or subletting to an affiliate, subsidiary or successor of Tenant
by merger, reorganization or sale of assets, or for any transfer or issuance
of Tenant's stock as part of a reorganization or public or private equity
financing, PROVIDED, HOWEVER, that (i) Tenant is not in default in the
performance of any of its obligations hereunder; (ii) except in connection
with a reincorporation of Tenant which changes Tenant's domicile without
materially changing the ownership of Tenant (as reincorporated), the assignee
or subtenant have a net worth equal to or greater than that of Tenant as of
the date of this Lease; and (iii) prior to effectuating any such assignment
or subleasing, Tenant notify Landlord in writing of the name and address of
such assignee or subtenant; its type of business (e.g., corporation,
partnership, limited liability company) and state of organization; the names
and titles of the principal officers of such assignee or subtenant; and the
names of the majority owners of such assignee or subtenant. Each of the
foregoing permitted transactions effectuated in compliance with this Section
16(a) is hereafter referred to as a "Permitted Transfer."
(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. Except with respect
to Permitted Transfers, Landlord shall have the option, exercisable by notice
given to Tenant within twenty (20) days after Tenant's notice is given, either
to sublet such space from Tenant at the rental and on the other terms set forth
in this Lease for the term set forth in Tenant's notice, or, in the case of an
assignment, to terminate this Lease. If Landlord does not exercise such option,
(1) Except with respect to Permitted Transfers, 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
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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;
(6) The assignee or sublessee shall assume, in full, the
obligations of Tenant under this Lease;
(7) In the event of any assignment or subleasing with the
Landlord's consent, Tenant shall in any event remain fully liable under this
Lease.
If Tenant is a corporation or partnership, the sale or other
transfer of forty-nine percent (49%) or more of the shares or other equity
interest of Tenant, other than in a Permitted Transfer, shall be deemed an
assignment under this Article 16 and shall require the consent of Landlord.
Tenant understands and acknowledges that any options granted
under this Lease, including without limitation renewal options, are personal to
the named Tenant and shall terminate and be of no further force or effect in the
event of an assignment of this Lease or a subleasing of the Premises, other than
in a Permitted Transfer.
(c) No subletting or assignment shall release Tenant of Tenant's
obligations under this Lease or alter the primary liability of Tenant to pay the
Rent and to perform all other obligations to be performed by Tenant hereunder.
The acceptance of Rent by Landlord from any other person shall not be deemed to
be a waiver by Landlord of any provision hereof. Consent to one assignment or
subletting shall not be deemed consent to any subsequent assignment or
subletting. In the event of default by an assignee or subtenant of Tenant or
any successor of Tenant in the performance of any of the terms hereof, Landlord
may proceed directly against Tenant without the necessity of exhausting remedies
against such assignee, subtenant or successor. Landlord may consent to
subsequent assignments of the Lease or sublettings or amendments or
modifications to the Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant, and without obtaining its or their consent thereto
and any such actions shall not relieve Tenant of liability under this Lease.
(d) 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/100 Dollars ($150.00) plus attorneys' fees not to exceed $1,000.00 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, Tenant shall become a tenant at sufferance only, and
no renewal of the Term of this Lease or month-to-month tenancy shall be inferred
from such holding over. Notwithstanding the foregoing, Tenant shall comply with
all the provisions of this Lease, but the "Monthly Installments of Base Rent"
payable by Tenant shall be increased to one hundred twenty-five percent (125%)
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.
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18. SURRENDER OF PREMISES.
(a) Tenant shall peaceably surrender the Premises to Landlord on the
Expiration Date, in broom-clean condition and in as good condition as when
Tenant took possession, except for (i) normal wear and tear, (ii) loss by fire
or other casualty, and (iii) loss by condemnation. Tenant shall remove Tenant's
Property on or before the Expiration Date and promptly repair all damage to the
Premises or Building caused by such removal.
(b) If Tenant vacates, abandons or surrenders the Premises, or is
dispossessed by process of law or otherwise, any of Tenant's Property left on
the Premises shall be deemed to be abandoned, and, at Landlord's option, title
shall pass to Landlord under this Lease as by a ▇▇▇▇ of sale. If Landlord
elects to remove all or any part of such Tenant's Property, the cost of removal,
including repairing any damage to the Premises or Building caused by such
removal, shall be paid by Tenant. On the Expiration Date Tenant shall surrender
all keys to the Premises.
19. DESTRUCTION OR DAMAGE.
(a) If the Premises or the portion of the Building necessary for
Tenant's occupancy is damaged by fire, earthquake, act of God, the elements
or other casualty, Landlord shall, subject to the provisions of this Article,
promptly repair the damage, if such repairs can, in Landlord's reasonable
opinion, be completed within ninety (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 19(d).
(b) If in Landlord's reasonable 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 19(a). 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 19(a). If Landlord does not elect to make such repairs, this Lease
shall terminate as of the date of such fire or other casualty.
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(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) If Landlord is not obligated to and elects not to repair
following a casualty, or if the casualty materially affects Tenant's use of
or access to the Premises and the repair which Landlord elects or is
obligated to perform is reasonably expected to take more than one hundred
eighty (180) days to complete, Tenant shall have the right to terminate this
Lease effective as of the date of such casualty by delivering written notice
to Landlord.
(f) This Lease shall be considered an express agreement governing
any case of damage to or destruction of the Premises, Building or Project by
fire or other casualty, and any present or future law which purports to
govern the rights of Landlord and Tenant in such circumstances, in the
absence of express agreement, shall have no application.
20. EMINENT DOMAIN.
(a) If the whole of the Building or Premises is lawfully taken by
condemnation or in any other manner for any public or quasi-public purpose,
this Lease shall terminate as of the date of such taking, and Rent shall be
prorated to such date. If less than the whole of the Building or Premises is
so taken, this Lease shall be unaffected by such taking, provided that (i)
Tenant shall have the right to terminate this Lease by notice to Landlord
given within ninety (90) days after the date of such taking if any material
part 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 pursuant to this
Section, the Lease shall terminate on the thirtieth (30th) day after either
such notice. The Rent shall be prorated to the date of termination. If this
Lease continues in force upon such partial taking, the Base Rent and Tenant's
Proportionate Share shall be equitably adjusted according to the remaining
Rentable Area of the Premises and Project.
(b) In the event of any taking, partial or whole, all of the
proceeds of any award, judgment or settlement payable by the condemning
authority shall be the exclusive property of Landlord, and Tenant hereby
assigns to Landlord all of its right, title and interest in any award,
judgment or settlement from the condemning authority. Tenant, however, shall
have the right, to the extent that Landlord's award is not reduced or
prejudiced, to claim from the condemning authority (but not from Landlord)
such compensation as may be recoverable by Tenant in its own right for
relocation expenses and damage to Tenant's improvements and 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
17
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) Except to the extent arising from the gross negligence or
willful misconduct of Landlord or its agents, employees, invitees or
contractors, Tenant shall indemnify and hold Landlord harmless from and
against 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 Landlord's execution of this Lease,
Tenant hereby assumes all risk of damage or injury to any person or property
in, on or about the Premises from any cause.
(b) Except to the extent arising from the gross negligence or
willful misconduct of Landlord or its agents, employees, invitees or
contractors, Landlord shall not be liable for injury or damage which may be
sustained by the person or property of Tenant, its employees, invitees or
customers, or any other person in or about the Premises, caused by or
resulting from fire, steam, electricity, gas, water or rain which may leak or
flow from or into any part of the Premises, or from the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures, whether such damage or
injury results from conditions arising upon the Premises or upon other
portions of the Building or Project or from other sources. Landlord shall
not be liable for any damages arising from any act or omission of any other
tenant of the Building or Project.
22. TENANT'S INSURANCE.
(a) All insurance required to be carried by Tenant hereunder shall
be issued by responsible insurance companies acceptable to Landlord and
Landlord's lender and qualified to do business in the State. Each policy
shall name Landlord, and at Landlord's request any mortgagee of Landlord, as
an additional insured, as their respective interests may appear. Each policy
shall contain (i) a cross-liability endorsement, (ii) a provision that such
policy and the coverage evidenced thereby shall be primary and
non-contributing with respect to any policies carried by Landlord and that
any coverage carried by Landlord shall be excess insurance, and (iii) a
waiver by the insurer of any right of subrogation against Landlord, its
agents, employees and representatives, which arises or might arise by reason
of any payment under such policy or by reason of any act or omission of
Landlord, its agents, employees or
18
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 cancelable except after twenty (20) days written
notice to Landlord and Landlord's lender. Tenant shall furnish Landlord with
renewals or "binders" of any such policy at least ten (10) days prior to the
expiration thereof. Tenant agrees that if Tenant does not take out and
maintain such insurance, Landlord may (but shall not be required to) procure
said insurance on Tenant's behalf and charge the Tenant the premiums together
with a twenty-five percent (25%) handling charge, payable upon demand.
Tenant shall have the right to provide such insurance coverage pursuant to
blanket policies obtained by the Tenant, provided such blanket policies
expressly afford coverage to the Premises, Landlord, Landlord's mortgagee and
Tenant as required by this Lease.
(b) Beginning on the date Tenant is given access to the Premises
for any purpose and continuing until expiration of the Term, Tenant shall
procure, pay for and maintain in effect policies of casualty insurance
covering (i) all Leasehold Improvements (including any alterations, additions
or improvements as may be made by Tenant pursuant to the provisions of
Article 12 hereof), and (ii) trade fixtures, merchandise and other personal
property from time to time in, on or about the Premises, in an amount not
less than one hundred percent (100%) of their actual replacement cost from
time to time, providing protection against any peril included within the
classification "Fire and Extended Coverage" together with insurance against
sprinkler damage, vandalism and malicious mischief. The proceeds of such
insurance shall be used for the repair or replacement of the property so
insured. Upon termination of this Lease following a casualty as set forth
herein, the proceeds under (i) shall be paid to Landlord, and the proceeds
under (ii) above shall be paid to Tenant.
(c) Beginning on the date Tenant is 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 form
property damage coverage for not less than One Million Dollars ($1,000,000)
combined single limit for bodily injury, death and property damage liability.
(d) Not less than every three (3) years during the Term, Landlord
shall have the right, in Landlord's reasonable business judgment, to
increases in all of Tenant's insurance policy limits for all insurance to be
carried by Tenant as set forth in this Article.
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
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time of the loss or damage. Tenant shall, upon obtaining the policies of
insurance required under this Lease, give notice to its insurance carrier or
carriers that the foregoing mutual waiver of subrogation is contained in this
Lease.
24. SUBORDINATION AND ATTORNMENT. Upon written request of Landlord, or
any mortgage or 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 mortgage or deed of trust now or hereafter in effect with
respect to the Building or Project, or to the interest of any lease in which
Landlord now or hereafter becomes lessee, and to all advances made or
hereafter to be made thereunder, provided that Tenant receives a
non-disturbance agreement from the holder of any such mortgage, deed of trust
or ground lease now or hereafter recorded against the Project during the term
of this Lease on such party's standard form. In addition, Landlord shall use
reasonable efforts to procure a non-disturbance agreement from the holder of
any mortgage, deed of trust or ground lease recorded against the Project as
of the date of this Lease, on such party's standard form. 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 Promises subject to this Lease and Tenant's
possession is not disturbed as a result of such foreclosure, transfer or
termination.
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; (d) that Landlord is not
in default hereunder or, if Landlord is claimed to be in default, stating the
nature of any claimed default; and (e) such other matters reasonably
requested by Landlord. Any such statement may be relied upon by a purchaser.
assignee or lender of Landlord. Tenant's failure to execute and deliver such
statement within the time required shall at Landlord's election be a default
under this Lease and shall also be conclusive upon Tenant that: (1) this
Lease is in full force and effect and has not been modified except as
represented by Landlord; (2) there are no uncured defaults in Landlord's
performance and that Tenant has no right of offset, counter-claim or
deduction against Rent; and (3) no 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
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such transfer, and assumption by such successor, 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 the Premises; or
(b) If Tenant fails to pay any Rent within ten (10) days of the
due date, or any other charges required to be paid by Tenant under this Lease
within ten (10) days after written notice from Landlord to Tenant specifying
such failure (provided that the foregoing shall not be construed as a grace
period in favor of Tenant); 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 from Landlord to Tenant
specifying such failure; provided, however, that if any such failure not
involving a hazardous condition cannot reasonably be cured within such period,
Tenant shall not be deemed to be in default hereunder if Tenant promptly
commences such cure within such period and thereafter diligently pursues such
cure to completion within a reasonable time; or
(d) If a writ of attachment or execution is levied on this Lease
or a substantial portion of Tenant's assets, where such writ is not discharged
within forty-five (45) days; or
(e) If Tenant makes a general assignment for the benefit of
creditors, or provides for an arrangement, composition, extension or adjustment
with its creditors; or
(f) If Tenant files a voluntary petition for relief or if a
petition against Tenant in a proceeding under the federal bankruptcy laws or
other insolvency laws is filed and not withdrawn or dismissed within forty-five
(45) days thereafter, 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.
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27.2 REMEDIES. In the event of Tenant's default hereunder as provided
in Section 27.1 above, then in addition to any other rights or remedies Landlord
may have under any law, Landlord shall have the right, at Landlord's option,
without further notice or demand of any kind to do the following:
(a) Terminate this Lease and Tenant's right to possession of the
Promises and re-enter 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, re-enter 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) Re-enter the Premises under the provisions of subparagraph
b, and thereafter elect to terminate this Lease and Tenant's right to possession
of the Premises.
If Landlord re-enters the Premises under the provisions of
subparagraphs (b) or (c) above, Landlord shall not be deemed to have
terminated this Lease or the obligation of Tenant to pay any Rent or other
charges thereafter accruing, unless Landlord notifies Tenant in writing of
Landlord's election to terminate this Lease. In the event of any re-entry 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 necessary
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 necessary 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
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(3) RENT AFTER AWARD. The worth at the time of the award
of the amount by which the unpaid Rent for the balance of the Term after the
time of award exceeds the amount of the rental loss that Tenant proves could be
reasonably avoided; plus
(4) PROXIMATELY CAUSED DAMAGES. Any other amount necessary
to compensate Landlord for all detriment proximately caused by Tenant's failure
to perform its obligations under this Lease or which in the ordinary course of
things would be likely to result therefrom, including, but not limited to, any
costs or expenses (including attorneys' fees), incurred by Landlord in (a)
retaking possession of the Premises, (b) maintaining the Premises after Tenant's
default, (c) preparing the Premises for reletting to a new tenant, including any
repairs or alterations, and (d) reletting the Premises, including broker's
commissions.
The "worth at the time of the award" as used in subparagraphs 1
and 2 above, is to be computed by allowing interest at the rate of ten percent
(10%) per annum. "The worth at the time of the award" as used in subparagraph 3
above, is to be computed by discounting the amount at the discount rate of the
Federal Reserve Bank situated nearest to the Premises at the time of the award
plus one percent (1%).
The waiver by Landlord of any breach of any term, covenant or
condition of this Lease shall not be deemed a waiver of such term, covenant or
condition or of any subsequent breach of the same or any other term, covenant or
condition. Acceptance of Rent by Landlord subsequent to any breach hereof shall
not be deemed a waiver of any preceding breach other than the failure to pay the
particular Rent so accepted, regardless of Landlord's knowledge of any breach at
the time of such acceptance of Rent. Landlord shall not be deemed to have
waived any term, covenant or condition unless Landlord gives Tenant written
notice of such waiver.
27.3 LANDLORD'S DEFAULT. If Landlord fails to perform any covenant,
condition or agreement contained in this Lease within thirty (30) days after
receipt of written notice from Tenant specifying such default, or if such
default cannot reasonably be cured within thirty (30) days, if Landlord fails to
commence to cure within that thirty (30) day period, then Landlord shall be
liable to Tenant for any damages sustained by Tenant as a result of Landlord's
breach; provided, however, it is expressly understood and agreed that if Tenant
obtains a money judgment against Landlord resulting from any default or other
claim arising under this Lease, that judgment shall be satisfied only out of the
proceeds of sale received upon execution of such judgment or receivable by
Landlord upon the sale or other disposition of all or any portion of Landlord's
right, title or interest in the Project and out of 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.
Tenant shall not have the right 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.
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27.4 NOTICE AND CURE. Whenever the term "default" is used in this
Lease, it shall mean a default beyond any applicable notice and cure periods set
forth in Section 27.1 or 27.3 above.
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, sent by certified or registered U.S. mail, postage
prepaid, return receipt requested, or sent by a nationally recognized courier
service (such as FedEx) for next-day delivery and if sent in either manner
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,
Attention: President. Notices, approvals and demands given in the foregoing
manner shall be deemed given when actually received or refused by the party to
whom sent ,unless mailed, in which event same shall be deemed given on the day
of actual delivery as shown by the addressee's registered or certified mail
receipt or at the expiration of the third (3rd) business day after the date of
mailing, whichever first occurs. Landlord and Tenant may from time to time by
notice to the other designate another place for receipt of future notices.
30. GOVERNMENT ENERGY OR UTILITY CONTROLS. In the event of imposition of
Federal, State or local government controls, rules, regulations, or restrictions
on the use or consumption of energy or other utilities during the Term, both
Landlord and Tenant shall be bound thereby. In the event of a difference in
interpretation by Landlord and Tenant of any such controls, the interpretation
of Landlord shall prevail, and Landlord shall have the right to enforce
compliance therewith, including the right of entry into the Premises to effect
compliance.
31. RELOCATION OF PREMISES. Landlord shall have the right to relocate the
Premises to another part of the Building in accordance with the following:
(a) The new premises shall be substantially the same in size,
dimensions, configuration, decor and nature as the Premises described in this
Lease, and if the relocation occurs after the Commencement Date, shall be placed
in that condition by Landlord at its cost.
(b) Landlord shall give Tenant at least thirty (30) days written
notice of Landlord's intention to relocate the Premises.
(c) As nearly as practicable, the physical relocation of the Premises
shall take place on a weekend and shall be completed before the following
Monday. If the physical relocation has not been completed in that time, Base
Rent shall ▇▇▇▇▇ in full from the time the physical relocation commences to the
time it is completed. Upon completion of such relocation, the new premises
shall become the "Premises" under this Lease.
24
(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 and Tenant's Proportionate Share 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 and Tenant's Proportionate Share, if any.
32. QUIET ENJOYMENT. Tenant, upon paying the Rent and performing all of
its obligations under this Lease, shall have the right to peaceably and quietly
enjoy the Premises and the Common Areas, subject to the terms of this Lease and,
subject to the provisions of Article 24 above, subject to any mortgage, lease,
or other agreement to which this Lease may be subordinate.
33. INTENTIONALLY OMITTED
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.
Notwithstanding the foregoing, nothing in this Article 34 shall excuse or delay
Tenant's obligation to pay Rent or other charges under this Lease.
35. CURING TENANT'S DEFAULTS. If Tenant defaults in the performance of
any of its obligations under this Lease, Landlord may (but shall not be
obligated to) without waiving such default, perform the same for the account at
the expense of Tenant. Tenant shall pay Landlord all costs of such performance
promptly upon receipt of a ▇▇▇▇ therefor.
36. SIGN CONTROL. Except with respect to any signage rights expressly
granted to Tenant by Landlord pursuant to the terms of this Lease, Tenant shall
not affix, paint, erect or inscribe any sign, projection, awning, signal or
advertisement of any kind to any part of the Premises, Building or Project,
including without limitation, the inside or outside of windows or doors, without
the written consent of Landlord. Landlord shall have the right to remove any
signs or other matter, installed without Landlord's permission, without being
liable to Tenant by reason of such removal, and to charge the cost of removal to
Tenant as additional rent hereunder, payable within ten (10) days of written
demand by Landlord.
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37. MISCELLANEOUS.
(a) ACCORD AND SATISFACTION; ALLOCATION OF PAYMENTS. No payment by
Tenant or receipt by Landlord of a lesser amount than the Rent provided for in
this Lease shall be deemed to be other than on account of the earliest due Rent,
nor shall any endorsement or statement on any check or letter accompanying any
check or payment as Rent be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of the Rent or pursue any other remedy provided for in this Lease.
In connection with the foregoing, Landlord shall have the absolute right in its
sole discretion to apply any payment received from Tenant to any account or
other payment of Tenant then not current and due or delinquent.
(b) ADDENDA. If any provision contained in an addendum to this Lease
is inconsistent with any other provision herein, the provision contained in the
addendum shall control, unless otherwise provided in the addendum.
(c) ATTORNEYS' FEES. If any action or proceeding is brought by
either party against the other pertaining to or arising out of this Lease, the
finally prevailing party shall be entitled to recover all costs and expenses,
including reasonable attorneys' fees, incurred on account of such action or
proceeding.
(d) CAPTIONS, ARTICLES AND SECTION-NUMBERS. The captions appearing
within the body of this Lease have been inserted as a matter of convenience and
for reference only and in no way define, limit or enlarge the scope or meaning
of this Lease. All references to Article and Section numbers refer to Articles
and Sections in this Lease.
(e) CHANGES REQUESTED BY LENDER. Tenant shall not 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 Tenant.
(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, Tenant's only remedies therefor shall be an action for specific
performance, injunction or declaratory judgment to enforce any right to such
consent, approval or statement of satisfaction.
(h) CORPORATE AUTHORITY. If Tenant is a corporation, each individual
signing this Lease on behalf of Tenant represents and warrants that he or she is
duly authorized to execute and deliver this Lease on behalf of the corporation,
and that this Lease is binding on Tenant in accordance with its terms. Tenant
shall, at Landlord's request, deliver a certified copy of a resolution of its
board of directors authorizing such execution.
26
(i) COUNTERPARTS. This Lease may be executed in multiple
counterparts, all of which shall constitute one and the same Lease.
(j) EXECUTION OF LEASE; NO OPTION. The submission of this Lease to
Tenant shall be for examination purposes only, and does not and shall not
constitute a reservation of or option for Tenant to lease, or otherwise create
any interest of Tenant in the Premises or any other premises within the Building
or Project. Execution of this Lease by Tenant and its return to Landlord shall
not be binding on Landlord notwithstanding any time interval, until Landlord has
in fact signed and delivered this Lease to Tenant.
(k) FURNISHING OF FINANCIAL STATEMENTS; TENANT'S REPRESENTATIONS. In
order to induce Landlord to enter into this Lease Tenant agrees that it shall
promptly furnish Landlord, from time to time, upon Landlord's written request,
with financial statements reflecting Tenant's current financial condition.
Tenant represents and warrants that all financial statements, records and
information furnished by Tenant to Landlord in connection with this Lease are
true, correct and complete in all material respects.
(l) FURTHER ASSURANCES. The parties agree to promptly sign all
documents reasonably requested to give effect to the provisions of this Lease.
(m) MORTGAGEE PROTECTION. Tenant agrees to send by certified or
registered mall to any mortgagee or 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 falls 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, including all exhibits
and addenda hereto, 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 supplemented except by an
agreement in writing signed by the parties or their respective successors in
interest.
(o) RECORDING. Tenant shall not record this Lease without the prior
written consent of Landlord. Tenant, upon the request of Landlord, shall
execute and acknowledge a "short form" memorandum of this Lease for recording
purposes.
(p) SEVERABILITY. A final determination by a court of competent
jurisdiction that any provision of this Lease is invalid shall not affect the
validity of any other provision, and any provision so determined to be invalid
shall, to the extent possible, be construed to accomplish its intended effect.
(q) SUCCESSORS AND ASSIGNS. This Lease shall apply to and bind the
heirs, personal representatives, and permitted successors and assigns of the
parties.
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(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 either party upon any default by the other 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.
Landlord's consent to or approval of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent act by Tenant.
Any waiver by either party 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.
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(t) ACCESS. Tenant shall be entitled to access to the Premises and
parking areas twenty-four (24) hours per day, seven (7) days per week,
throughout the Term.
(u) CHANGES TO AND MAINTENANCE AND REGULATION OF PROJECT.
Notwithstanding anything in the Lease to the contrary, Landlord shall perform
its duties and exercise its rights under all provisions of the Lease concerning
Landlord's use, repair, maintenance or regulation of, or changes, improvements
or alterations to the Project or any portion thereof (including the Premises) in
a manner which reasonably minimizes interference with Tenant's use of, business
operations at, and access to the Premises. If Tenant is prevented from having
access to the Premises, due to any casualty or other occurrence, for five (5)
consecutive days or ten (10) days in any month, then Tenant's rent shall be
reduced to the extent of any rental interruption insurance proceeds actually
received by Landlord in connection with any such casualty or occurrence.
(v) REASONABLENESS. Any time the Lease grants to Landlord or Tenant
the right to take action or exercise discretion, or grants Landlord the right to
establish rules and regulations or grants Tenant or Landlord the right to make
allocations or other determinations ,Landlord and Tenant shall, unless otherwise
expressly set forth in the Lease, act reasonably and in good faith and take no
action which might result in the frustration of the reasonable expectations of a
sophisticated landlord and tenant concerning the benefits to be enjoyed under
the Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the dates set forth below.
LANDLORD: VILLAGE PLAZA ASSOCIATES, LLC
a California limited liability company
By:
-----------------------------------
J.R. ORTON, III
Manager
TENANT: SCOOP, INC., a California corporation
By:
-----------------------------------
Its
--------------------------------
▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ shall improve the Premises in accordance with a mutually
agreeable floor plan to be attached to and made a part of this Lease.
Landlord's contractor shall conduct all tenant improvement work, and if
desired, Tenant may select a qualified contractor suitable to Landlord who
may bid on all or a portion of the tenant improvement work. Included in the
tenant improvement work will be space planning, construction drawings, and
permitting through the City of Santa ▇▇▇. Landlord will contribute a maximum
of $8.25 per usable square foot to improve the Premises. Any amounts above
$8.25 per rentable square foot shall be the sole responsibility of Tenant.
[DESCRIPTION OF LANDLORD'S INITIAL WORK AND LANDLORD'S ADDITIONAL WORK TO
FOLLOW]
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EXHIBIT D
RULES AND REGULATIONS
ATTACHED TO AND MADE PART OF THIS LEASE
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed, printed or affixed on or to the Premises or to
the outside or inside of the Building without the prior written
consent of Landlord, which may be granted or withheld in Landlord's
sole and absolute discretion. Landlord shall have the right, unless
Landlord has given prior written consent, to remove any such sign,
placard, picture, advertisement, name or notice, without notice to and
at the expense of Tenant, and Landlord shall not be liable in damages
for such removal. All approved signs or lettering on doors and walls
shall be printed, painted, affixed or inscribed at the expense of
Tenant by Landlord or by a person selected by Landlord and in a manner
and style acceptable to Landlord.
2. No tenant shall obtain for use on the Premises waxing, cleaning,
interior glass polishing, rubbish removal, towel or other similar
services, or accept barbering or bootblacking, or coffee cart
services, milk, soft drinks or other like services on the Premises,
except from persons authorized by Landlord and at the hours and under
regulations fixed by Landlord. No vending machines or machines of any
description shall be installed, maintained or operated upon the
Premises without the prior written consent of Landlord, which shall
not be unreasonably withheld.
3. The directories of the Building shall be provided exclusively for the
display of the name and location of tenants only and Landlord reserves
the right to exclude any other names therefrom and otherwise limit the
number of listings thereon.
4. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by any of the tenants or used by
them for any purpose other than for ingress and egress from their
respective premises. The halls, passages, exits, entrances, elevator,
stairways and the roof are not for the use of the general public and
Landlord shall, in all cases, retain the right to control and prevent
access thereto by all persons whose presence, in the judgment of the
Landlord, shall be prejudicial to the safety, character, reputation
and interests of the Building and its tenants; provided that nothing
herein contained shall be construed to prevent such access to persons
with whom Tenant normally deals in the ordinary course of Tenant's
business unless such persons are engaged in illegal activities. No
tenant and no employees or invitees of any tenant shall go upon tile
roof of the Building.
5. Tenant, upon termination of its tenancy, shall deliver to Landlord the
keys of offices, rooms and toilet rooms which shall have been
furnished Tenant or which Tenant shall have had made, and, in the
event of loss of any keys so furnished, shall pay Landlord therefor.
Tenant shall not alter any lock nor install
1
any new or additional locks or any bolts on any door of the Premises,
other than Tenant's safes and vaults.
6. Toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown
therein, and the expense of any breakage, stoppage or damage,
resulting from the violation of this Rule shall be borne by tenant
who, or whose employees, shall have caused it.
7. Tenant shall not overload the floor of the Premises or ▇▇▇▇, drive
nails, screw or drill into the partitions, ceilings or floor or in
ally way deface the Premises.
8. Except with respect to the use of Tenant's direct entrances to the
Premises, no furniture, packages, supplies, merchandise, freight or
equipment of any kind shall be brought into the Building without the
prior consent of Landlord. All moving of the same into or out of the
Building shall be via the Building's freight handling facilities,
unless otherwise directed by Landlord, at such time and in such manner
as Landlord shall prescribe. No hand trucks or vehicles (other than a
wheelchair for an individual) shall be used in passenger elevators.
Any hand trucks permitted in the Building must be equipped with soft
rubber tires and side guards.
9. Landlord shall have the right to prescribe the weight, size and
position of all safes and other heavy equipment brought into the
Building, the times and manner of moving the same in or out of the
Building, and all such moving must be done under the supervision of
Landlord. Safes or other heavy equipment shall, if considered
necessary by Landlord, stand on a platform of such thickness as is
necessary to properly distribute the weight. Landlord shall not be
responsible for loss of or damage to any such safe or property from
any cause, and all damage done to the Building by moving or
maintaining any such safe or other property shall be repaired at the
expense of Tenant.
10. Tenant shall not employ any person or persons other than the janitor
of Landlord for the purpose of cleaning the Premises unless otherwise
agreed to by Landlord. Except with the written consent of Landlord,
no person or persons other than those approved by Landlord shall be
permitted to enter the Building for the purpose of cleaning the same.
Tenant shall not cause any unnecessary labor by reason of Tenant's
carelessness or indifference in the preservation of good order and
cleanliness. Janitor service shall include ordinary dusting and
cleaning by the janitor assigned to such work and shall not include
shampooing of carpets or rugs or moving of furniture or other special
services. Janitor service will not be furnished on nights when rooms
are occupied after 9:30 P.M. Window cleaning shall be done only by
Landlord. Except with respect to Landlord's gross negligence in the
selection of a janitorial service, Landlord shall not be responsible
to any tenant for any loss of property on the Premises, however
occurring, or for any damage done to the effects of any tenant by the
janitor or any other employee or any other person including the
building guards.
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Landlord shall cooperate reasonably with Tenant, at no cost to
Landlord, should Tenant wish to pursue any legitimate claims
against Landlord's janitorial service.
11. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the
Premises to be occupied or used in any manner offensive or
objectionable to Landlord or other occupants of the Building by reason
of noise, odors or vibrations, or interfere in any way with other
tenants or those having business therein, nor shall any animals or
birds be brought in or kept in or about the Premises or the Building.
12. No cooking shall be done or permitted by any tenant on the Premises,
nor shall the Premises be used for the manufacture or storage of
merchandise, for washing clothes, for lodging, or for any improper,
objectionable or immoral purpose.
13. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline or inflammable, explosive or combustible fluid or
material, or use any method of heating or air conditioning other than
that supplied by Landlord.
14. Landlord will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires
or stringing of wires will be allowed without the written consent of
Landlord. The location of telephones, call boxes and other office
equipment affixed to the Premises shall be subject to approval of
Landlord.
15. No tenant shall lay linoleum, tile, carpet or other similar floor
covering so that the same shall be affixed to the floor of the
Premises in any manner except as approved by Landlord. The expense of
repairing any damage resulting from a violation of this Rule or
removal of any floor covering shall be borne by tenant by whom, or by
whose contractors, employees or invitees, the damage shall have been
caused.
16. Landlord reserves the right to close and keep locked all entrance and
exit doors of the Building and otherwise regulate access of all
persons (other than Tenant's employees) to the Building on Sundays and
public holidays and on other days between the hours of 6:00 p.m. and
7:00 a.m. and at such other times as Landlord may deem advisable for
the adequate protection and safety of the Building, its tenants and
occupants, and property in the Building. Landlord may refuse
admission to the Building outside of ordinary business hours to any
person not known to the employee of the Building in charge or not
having a pass issued by Landlord or not properly identified and may
require persons admitted to or leaving the Building to register. Any
person whose presence in the Building at any time shall, in the sole
judgment of Landlord, be prejudicial to the safety, character,
reputation and interests of the Building or its tenants may be denied
access to the Building or may be ejected therefrom. Landlord may
require any person leaving the Building with any package or other
object to exhibit a pass from tenant from whose premises the package
or object is being
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removed but the establishment and enforcement of such requirement
shall not impose any responsibility on Landlord for the prosecution
of any tenant against the removal of property from the Premises of
tenant. Landlord shall, in no case, be liable for damages for any
error with regard to the admission or exclusion from the Building
of any person.
17. Tenant shall see that the doors of its Premises are closed and
securely locked before leaving the Building and must observe strict
care and caution that all water faucets or water apparatus are
entirely shut off before Tenant or Tenant's employees leave the
Building and that all electricity, gas or air shall likewise be
carefully shut off, so as to prevent waste or damage, and for any
default or carelessness Tenant shall make good all injury sustained by
other tenants or occupants of the Building or Landlord.
18. The requirements of Tenant shall be attended to only upon application
at the office of the Building. Employees of Landlord shall not
perform any work or do anything outside of their regular duties unless
under special instruction from Landlord.
19. Tenant shall not install or use any blinds, shades, awnings or screens
in connection with any window or door of the Premises and shall not
use any drape or window covering facing any exterior glass surface
other than the standard drape established by Landlord.
20. Tenant shall cooperate with Landlord in obtaining maximum
effectiveness of the cooling system by closing drapes when the sun's
rays fall directly on windows of the Premises. Tenant shall not
obstruct, alter, or in any way impair the efficient operation of
Landlord's heating, ventilating and air conditioning system, and shall
not place bottles, machines, parcels or any other articles on the
induction unit enclosure so as to interfere with air flow. Tenant
shall not tamper with or change the settings of any thermostats or
control valves.
21. Canvassing, soliciting and peddling within the entire Building complex
are prohibited unless specifically approved by Landlord, and each
tenant shall cooperate to prevent such activity.
22. All parking ramps and areas, plus other public areas forming a part of
the complex, shall be under the sole and absolute control of Landlord
with the exclusive right to regulate and control these areas. Tenant
agrees to conform to the Rules and Regulations that may be established
from time to time by Landlord for these areas.
23. Landlord shall have the right to prohibit any advertising by any
tenant which, in Landlord's opinion, tends to impair the reputation of
the Building or its desirability as a location for offices and, upon
written notice from Landlord, Tenant shall refrain from or discontinue
such advertising. Tenant shall not, without the prior written consent
of Landlord which may be granted or withheld
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in Landlord's sole and absolute discretion, use the name of the
Building or the Project for any purpose other than as an address of
the business to be conducted by Tenant in the Premises. Tenant
shall not be permitted to use any other tradename, trademark or
fictitious business name of Landlord, nor shall Tenant do
anything in connection with Tenant's business or advertising
which in the reasonable judgment of Landlord may reflect
unfavorably on Landlord, the Building or the Project, or confuse or
mislead the public as to any apparent connection or relationship
between Landlord and Tenant.
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EXHIBIT E
ADDENDUM
THIS ADDENDUM IS ATTACHED TO AND MADE A PART OF THAT CERTAIN OFFICE BUILDING
LEASE (THE "LEASE") BY AND BETWEEN VILLAGE PLAZA ASSOCIATES, LLC, A
CALIFORNIA LIMITED LIABILITY COMPANY ("LANDLORD") AND SCOOP, INC., A
CALIFORNIA CORPORATION ("TENANT") DATED ______________, 1996.
38. COMMISSION:
Landlord shall pay to ▇▇▇▇▇ & ▇▇▇▇▇ a commission in the amount of
$18,637.20. This commission shall be paid in four (4) installments as
follows:
(1) Installment one (1) in the amount of $4,659.30 upon execution of the
Lease by Landlord and Tenant.
(2) Installment two (2) in the amount of $4,659.30 one (1) year from the
Lease commencement date.
(3) Installment three (3) in the amount of $4,659.30 two (2) years from
the Lease commencement date.
(4) Installment four (4) in the amount of $4,659.30 three (3) years from
the Lease commencement date.
Notwithstanding the foregoing, if CalTrans delivers written notice to
Landlord terminating its option to terminate the CalTrans lease, ▇▇▇▇▇ &
▇▇▇▇▇ shall be paid immediately following Landlord's receipt of the
termination notice from CalTrans the difference between $18,637.20 and the
commission already paid to ▇▇▇▇▇ & ▇▇▇▇▇.
39. MONTHLY RENTAL SCHEDULE
Monthly Installments of Base Rent shall be as follows during the Term:
MONTHS MONTHLY RENTAL AMOUNT PSF/FSG MONTHLY AMOUNT
------ ----------------------------- --------------
1-12 $1.15 $7,290.00
13-24 $1.20 $7.607.00
25-36 $1.25 $7,924.00
37-48 $1.30 $8,241.00
40. SIGNAGE
Landlord shall provide, at Tenant's sole cost, suite signage and eyebrow
signage on the building per City approval. Building signage shall be as
mutually agreeable to Landlord and Tenant as to size and location.
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41. CANCELLATION OF LEASE
If CalTrans exercises its right to cancel its lease obligation at the
Building, Landlord shall immediately notify Tenant of CalTrans' exercise
and may, at Landlord's election, terminate the Lease as of the date
specified in such notice, which date shall be not less than six (6) months
from the date of said notice. In the event Landlord elects to terminate
the Lease pursuant to this Section 41, the Expiration Date of the Lease
shall be the date that is specified in Landlord's notice, provided,
however, that Tenant shall have the right to sooner terminate the Lease by
delivering written notice to Landlord so long as the Expiration Date
specified in Tenant's notice is at least ninety (90) days after the date of
Landlord's notice of termination.
42. RELOCATION COST
In the event Landlord elects to terminate the Lease pursuant to Section 41
above during the first twenty-four (24) months of the Term, then,
concurrently with giving Tenant written notice of such termination,
Landlord shall pay Tenant the applicable relocation cost amount from the
following chart, based upon the date such notice is given:
MONTH OF TERM RELOCATION COST
------------- ---------------
1-12 $20,000.00
13 $20,000.00
14 $18,333.34
15 $16,666.68
16 $15,000.00
17 $13,333.36
18 $11,666.70
19 $10,000.04
20 $ 8,333.38
21 $ 6,666.72
22 $ 5,000.06
23 $ 3,333.40
24 $ 1,666.74
In the event Landlord elects to terminate the Lease pursuant to Section 41
above after the expiration of the first twenty-four (24) months of the
Term, Landlord shall not be required to pay any relocation cost.
43. OPTION TO RENEW
Tenant shall have the option to extend the Term of this Lease until
December 31, 2001 ("Option Term") upon the expiration of the initial Term
of this Lease, by giving notice of exercise of the option ("Option Notice")
in writing to Landlord at least six (6) months before the expiration of the
initial Lease Term. Notwithstanding the foregoing, if Tenant is in default
under any term or provision of this Lease as of the date of the giving of
the Option Notice, the Option Notice shall be null, void, and of no effect,
or if Tenant is in default on the date the Option Term is to commence, the
Option Term shall not commence, and this Lease shall expire at the end of
the initial Lease Term.
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The monthly Base Rent for the Premises during the Option Term shall
be set at the then prevailing Monthly Base Rent for comparable quality
office buildings in the Santa ▇▇▇ area. Included in this calculation
shall be Monthly Base Rent, any escalations thereto that are common
in the market at the time and other terms and conditions then common
in the market. The parties shall have thirty (30) days after
Landlord receives the Option Notice in which to agree on the Monthly Base
Rent and other Terms and Conditions during the Option Term. If the parties
agree on the Monthly Base Rent and other terms and conditions for the
extended term within such thirty (30) day period, they shall promptly
execute an amendment to this Lease stating such terms and conditions. If
the parties are not able to agree within such period, then Landlord and
Tenant shall seek two (2) independent appraisers who shall determine these
issues. In the event the two (2) appraisers cannot agree with one another,
then the two (2) appraisers are to select a third appraiser, and the
average of the three (3) appraisals will be used by the appraisers to
determine the fair market value for comparable buildings in the Santa ▇▇▇
area. The three (3) appraisers will have sixty (60) days to finalize these
issues. The cost of the appraisers shall be split equally between Landlord
and Tenant.
44. LANDLORD'S REPRESENTATIONS.
Landlord represents that, to the best of Landlord's knowledge, (i) the
Premises and the Project are free of asbestos and other hazardous materials
as of the date Tenant takes possession of the Premises, and (ii) the
Premises shall be delivered to Tenant in full compliance with the Americans
with Disabilities Act and Title 24 (California) requirements, assuming
Tenant's occupancy and standard improvements.
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