UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 Date of Report
(Date of earliest event reported): December
29, 1997
IMMECOR CORPORATION
(Exact name of small business issuer as specified in its charter)
CALIFORNIA
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(State or other jurisdiction of incorporation or organization)
333-06966 68-0324628
Commission file number (I.R.S. Employer Identification No.)
100-105 Professional Center Drive
Rohnert Park, CA 94928-2137
(Address of principal executive offices)
(707)585-3036
(Registrant's telephone number, including area code)
ITEM 5. OTHER EVENTS.
On April 15, 1999, Immecor Corporation signed a lease agreement with
Koll/Interreal Bay Area, a California general partnership, for additional space
located in the City of Santa Clara in the State of California, in order to
support the Company's business activities in that area.
A copy of the lease agreement, dated April 15, 1999, is attached to this filing
as Exhibit 99 hereto.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Not Applicable.
(b) Not Applicable.
(c) Exhibits.
Exhibit No. Description
99 Lease Agrement dated April 15, 1999
Immecor Corporation
Date: June 14, 1999 By: ________________________
Name: Heinot H. Hintereder
Title: President & CEO
By: ________________________
Name: Nhon K. Tran
Title: Acting Secretary
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MISSION PARK BUSINESS CENTER
Dated. April 15,1999
1. BASIC LEASE TERMS. For purposes of this Lease, the following terms have the
following definitions and meanings:
(a) Landlord: Koll/Intereal Bay Area, a California general partnership
Landlord's Address (For Notices): 1700 Wyatt Drive, Suite 1 , Santa Clara,
CA 95054
or such other place as Landlord may from time to time designate by notice to
Tenant with a copy to CB Richard Ellis, Inc., 275 Battery St., Suite 1300, San
Francisco, CA 94111-3305.
(b) Tenant: lmmecor Corporation, a California corporation
Tenant's Address for Notices (Premises): 1600 Wyatt Drive, Suite 11, Santa
Clara, CA 95054, Attention: J. Lai
(c) Premises: Suite(s) 11 of building 16 (the "Building") of the MISSION PARK
BUSINESS CENTER (the "Project") , located in the City of Santa Clara ("City"),
County of Santa Clara (`County'), State of California ("State") as shown on
Exhibit "A-I'. The Premises are depicted on Exhibit "A-11" and contain
approximately 1,680 Rentable Square Feet (subject to adjustment as provided in
this Lease).
(d) Tenant's Share: 1.18%
(f) Term: 36 Lease Months and 0 Days
(d) Commencement Date: April 30, 1999
(g) Expiration Date: April 29, 2002
(h) Initial Monthly Base Rent: $2,184.00 , subject to adjustment as provided in
Exhibit "B" and as otherwise provided in this Lease
(i) Monthly Operating Expense Charge: $100.80 , subject to adjustment as
provided in Extiibit "B"
(j) Security Deposit: $2,352.00
(k) Cleaning Deposit: $400.00
(l) Permitted Use: Sales and distribution of computer systems , and no other use
without the express written consent of Landlord, which consent Landlord may
withhold in its sole and absolute discretion.
(m) Broker(s): N/A
(n) Guarantor(s): N/A
(o) Interest Rate: The greater of ten percent (10%) per annum or two percent
(2%) in excess of the prime lending or reference rate of Wells Fargo Bank N.A.
or any successor bank in effect on the twenty-fifth (25th) day of the calendar
month immediately prior to the event giving rise to the Interest Rate
imposition; provided, however, the Interest Rate will in no event exceed the
maximum interest rate permitted to be charged by applicable law.
(p) Exhibits: A-1 through G, inclusive, which Exhibits are attached to this
Lease and incorporated herein by this reference.
(q) Addendum Paragraphs: - through -, inclusive, which Addendum Paragraphs are
attached to this Lease and incorporated herein by this reference.
(r) Base Year: The Base Year for purposes of calculating real property taxes and
assessments and Landlord's insurance premiums shall be 1999.
This Paragraph 1 represents a summary of the basic terms and definitions of this
Lease. In the event of any inconsistency between the terms contained in this
Paragraph 1 and any specific provision of this Lease, the terms of the more
specific provision shall prevail.
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2. PREMISES AND COMMON AREAS.
(a) Premises. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises upon and subject to the terms, covenants and conditions
contained in this Lease to be performed by each party. (b) Tenant's Use of
Common Areas. During the Term of this Lease, Tenant shall have the nonexclusive
right to use in common with all other occupants of the Project, the following
common areas of the Project (collectively, the "Common Areas"): the parking
facilities of the Project which serve the Building, loading and unloading areas,
trash areas, roadways, sidewalks, walkways, parkways, driveways, landscaped
areas, and similar areas and facilities situated within the Project and
appurtenant to the Building which are not reserved for the exclusive use of any
Project occupants. (c) Landlord's Reservation of Rights. Provided Tenant's use
of and access to the Premises is not interfered with in an unreasonable manner,
Landlord reserves for itself and for all other owner(s) and operator(s) of the
Common Areas and the balance of the Project, the right from time to time to: (i)
install, use, maintain, repair, replace and relocate pipes, ducts, conduits,
wires and appurtenant meters and equipment above the ceiling surfaces, below the
floor surfaces and within the walls of the Building; (ii) make changes to the
design and layout of the Project, including, without limitation, changes to
buildings, driveways, entrances, loading and unloading areas, direction of
traffic, landscaped areas and walkways, parking spaces and parking areas; and
(iii) use or close temporarily the Common Areas, and/or other portions of the
Project while engaged in making improvements, repairs or alterations to the
Building, the Project, or any portion thereof.
3. TERM. The term of this Lease ("Term") will be for the period designated in
Subparagraph 1(e), commencing on the Commencement Date, and ending on the
Expiration Date. Each consecutive twelve (12) month period of the Term of this
Lease, commencing on the Commencement Date, will be referred to herein as a
"Lease Year".
4. POSSESSION.
(a) Delivery of Possession. Landlord will deliver possession of the Premises to
Tenant in its current "as-is" condition with the addition of only those items of
work described on Exhibit "C" which are to be completed by Landlord on or before
the Commencement Date. If, for any reason not caused by Tenant, Landlord cannot
deliver possession of the Premises to Tenant on the Commencement Date, this
Lease will not be void or voidable, nor will Landlord be liable to Tenant for
any loss or damage resulting from such delay, but in such event, the
Commencement Date and Tenant's obligation to pay rent will not commence until
Landlord delivers possession to Tenant. If the delay in possession is caused by
Tenant, then the Term and Tenant's obligation to pay rent will commence as of
the Commencement Date even though Tenant does not yet have possession.
Notwithstanding the foregoing, Landlord will not be obligated to deliver
possession of the Premises to Tenant (but Tenant will be liable for rent if
Landlord can otherwise deliver the Premises to Tenant) until Landlord has
received from Tenant all of the following: (i) a copy of this Lease fully
executed by Tenant and the guaranty of Tenant's obligations under this Lease, if
any, executed by the Guarantor(s); (ii) the Security Deposit and the first
installment of Monthly Base Rent; and (iii) copies of policies of insurance or
certificates thereof as required under Paragraph 19 of this Lease. (b) Condition
of Premises. By taking possession of the Premises, Tenant will be deemed to have
accepted the Premises in its "as-is" condition on the date of delivery of
possession and to have acknowledged that all work to be completed by Landlord as
described on Exhibit "C" has been completed and there are no additional items
needing work or repair by Landlord. Tenant acknowledges that neither Landlord
nor any agent of Landlord has made any representation or warranty with respect
to the Premises, the Building, the Project or any portions thereof or with
respect to the suitability of same for the conduct of Tenant's business and
Tenant further acknowledges that Landlord will have no obligation to construct
or complete any additional buildings or improvements within the Project.
5. RENT.
(a) Monthly Base Rent. Tenant agrees to pay Landlord the Monthly Base Rent for
the Premises (subject to adjustment as hereinafter provided) in advance on the
first day of each calendar month during the Term without prior notice or demand,
except that Tenant agrees to pay the Monthly Base Rent for the first month of
the Term directly to Landlord concurrently with Tenant's delivery of the
executed Lease to Landlord. All rent must be paid to Landlord, without any
deduction or offset in legal money of the United States of America, at the
address designated by Landlord or to such other person or at such other place as
Landlord may from time to time designate in writing. Monthly Base Rent will be
adjusted during the Term of this Lease as provided in Exhibit "B".
(b) Additional Rent. All amounts and charges to be paid by Tenant hereunder,
including, without limitation, payments for Operating Expenses, insurance and
repairs, will be considered additional rent for purposes of this Lease, and the
word "rent" as used in this Lease will include all such additional rent unless
the context specifically or clearly implies that only Monthly Base Rent is
intended.
(c) Late Payments. Late payments of Monthly Base Rent and/or any item of
additional rent will be subject to interest and a late charge as provided in
Subparagraph 22(f) below.
6. OPERATING EXPENSES.
(a) Operating Expense Charge. Tenant shall pay Landlord, as additional rent,
Tenant's Monthly Operating Expense Charge as set forth in Subparagraph 1(i) of
this Lease. Tenant's Monthly Operating Expense Charge shall be paid monthly
concurrently with Tenant's payment of the Monthly Base Rent. Tenant's Monthly
Operating Expense Charge is intended to reimburse Landlord for a portion of the
costs and expenses incurred by Landlord for the operation and maintenance of the
Project other than real property taxes and assessments (as defined in
Subparagraph 6(b) below) and Landlord's insurance premiums (as defined in
Subparagraph 6(c) below). Tenant's Share of real property taxes and assessments
and insurance premiums shall be determined and paid by Tenant as provided for in
Subparagraphs (6(b) through 6(f) below.
(b) Real Property Taxes and Assessments. Tenant shall pay to Landlord, as
additional rent, Tenant's Share of the amount, if any, by which the real
property taxes and assessments for the Project paid for any Lease Year increase
over the real property taxes and assessments for the Project paid for the Base
Year defined in Subparagraph 1(r) above. The phrase "real property taxes and
assessments" as used in this Lease shall mean with respect to the Project (a)
any form of real property tax assessment, license fee, license tax, business
license fee, commercial rental tax, levy, charge, improvement bond or similar
imposition of any kind or nature imposed by any authority having the direct
power to tax, including, without limitation, any city, county state or federal
government, or any school, agricultural, lighting, drainage, or other
improvement or special assessment district thereof, and (b) any assessments
under any covenants, conditions and restrictions affecting the Project.
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(c) Insurance Premiums. Tenant shall pay to Landlord, as additional rent,
Tenant's Share of the amount of any increase in the Landlord's insurance
premiums for the Project over the Landlord's insurance premiums for the Project
paid for the Base Year defined iin Subparagraph 1(r) above, whether such
increase is a result of any increased valuation of the Project or general rate
increases. The phrase "Landlord's insurance premiums" as used in this Lease
shall mean with respect to the Project the premiums paid by Landlord for the
following policies of insurance which may be maintained by Landlord from time to
time: (a) fire and extended coverage iinsurance covering the improvements within
the Project (including, without limitation, the Common Area), with earthquake
and/or flood coverage if required by Landlord, (b) loss of rents insurance, (c)
comprehensive general liability insurance or commercial general lliability
insurance, (d) workers compensation insurance, and (e) such other insurance
covering such other liability or hazards as deemed appropriate by Landlord.
(d) Estimate Statement. If for any Lease Year of the Term, the real property
taxes and assessments for such Lease Year are anticipated to increase over the
real property taxes and assessments paid for the Base Year and/or the Landlord's
insurance premiums for such Lease Year are anticipated to increase over the
Landlord's insurance premiums paid for the Base Year, Landlord will estimate the
amount of any such increase in real property taxes and assessments and/or
Landlord's insurance premiums and will endeavor to deliver to Tenant, on or
before March 1st of that Lease Year, a statement (the "Estimate Statement")
wherein Landlord will estimate Tenant's share of the increase in real property
taxes and assessments and/or Landlord's insurance premiums for the then current
calendar year. Tenant agrees to pay Landlord, as additional rent, for each month
thereafter, beginning with the next installment of rent due, Tenant's Share of
the estimated increases in real property taxes and assessments over the real
property taxes and assessments paid for the Base Year and Tenant's Share of the
estimated increases in Landlord's insurance premiums over the Landlord's
insurance premiums paid for the Base Year, until such time as Landlord issues an
Estimate Statement for the succeeding calendar year; except that, concurrently
with the regular monthly payment next due following the receipt of each such
Estimate Statement, Tenant agrees to pay to Landlord an amount equal to one
monthly installment of Tenant's Share of the estimated increases iin real
property taxes and assessments and/or Landlord's insurance premiums (less any
applicable payments of estimated increases already paid by Tenant) multiplied by
the number of months from January, in the current calendar year, to the month of
such rent payment next due, all months inclusive.
(e) Actual Statement. By March 1st of each calendar year during the Term of this
Lease, Landlord will also endeavor to deliver to Tenant a statement ("Actual
Statement") which states Tenant's Share of the actual increase in real property
taxes and assessments and Landlord's insurance premiums paid for the preceding
calendar year over the real property taxes and assessments and Landlord's
insurance premiums paid for the Base Year. If the Actual Statement reveals that
the actual increase in real property taxes and assessments and/or Landlord's
insurance premiums is/are more than the estimated increases paid by Tenant for
the preceding calendar year, Tenant shall pay the difference to Landlord in a
lump sum within ten (10) days after receipt of theActual Statement. lf the
Actual Statement reveals that the actual increase in real property taxes and
assessments and/or Landlord's insurance premiums is less than the estimated
increases paid by Tenant for the preceding calendar year, Landlord will credit
any overpayment toward the next monthly installment(s) of estimated increases
due under this Lease.
(f) Miscellaneous. Any delay or failure by Landlord in delivering any Estimate
Statement or Actual Statement pursuant to this Paragraph 6 will not constitute a
waiver of its right to require an increase in rent nor will it relieve Tenant of
its obligations pursuant to this Paragraph 6, except that Tenant will not be
obligated to make any payments based on such Estimate statement or Actual
Statement until ten (I0) days after receipt of such Estimate Statement or Actual
Statement. IfTenant does not object to any Estimate Statement or Actual
Statement within thirty (30) days after Tenant receives any such statement, such
statement will be deemed final and binding on Tenant. Even though the Term has
expired and Tenant has vacated the Premises, when the final determination is
made of Tenant's Share of any increases in real property taxes and assessments
and/or Landlord's insurance premiums for the year in which this Lease
terminates, Tenant agrees to promptly pay any increase due over the estimated
expenses paid and, conversely, any overpayment made in the event said expenses
decrease shall promptly be rebated by Landlord to Tenant. Such obligation will
be a continuing one which will survive the expiration or termination of this
Lease. Prior to the expiration or sooner termination of the LeaseTerm and
Landlord's acceptance of Tenant's surrender of the Premises, Landlord will have
the right to estimate the actual increase in real property taxes and assessments
and the actual increase in Landlord's insurance premiums for the then current
Lease Year and to collect from Tenant prior to Tenant's surrender of the
Premises, Tenant's Share of any excess of such actual increase in real property
taxes and assessments and/or any excess of such actual increase in Landlord's
insurance premiums over the estimated increases in real property taxes and
assessments and/or insurance premiums, as appropriate, paid by Tenant in such
Lease Year.
7. SECURITY DEPOSIT AND CLEANING DEPOSIT. Upon Tenant's execution of this Lease,
Tenant will deposit with Landlord the Security Deposit designated in
Subparagraph 1(6) and Cleaning Deposit designated in Subparagraph 1(k). The
Security Deposit will be held by Landlord as security for the full and faithful
performance by Tenant of all of the terms, covenants, and conditions of this
Lease to be kept and performed by Tenant during the Term hereof. The Security
Deposit is not, and may not be construed by Tenant to constitute, rent for the
last month or any portion thereof. If Tenant defaults with respect to any
provisions of this Lease including, but not limited to, the provisions relating
to the payment of rent or additional rent, Landlord may (but will not be
required to) use, apply or retain all or any part of the Security Deposit for
the payment of any rent or any other sum in default, or for the payment of any
other amount which Landlord may spend by reason of Tenant's default or to
compensate Landlord for any loss or damage which Landlord may suffer by reason
of Tenant's default. If any portion of the Security Deposit is so used or
applied, Tenant agrees, within ten (10) days after Landlord's written demand
therefor, to deposit cash with Landlord in an amount sufficient to restore the
Security Deposit to its original amount and Tenant's failure to do so shall
constitute a default under this Lease. If Tenant is not in default at the
expiration or termination of this Lease, Landlord will return the Security
Deposit to Tenant, less any charges for repairs (pursuant to Paragraph 14(b)),
and cleaning costs not otherwise covered by the Cleaning Deposit. Landlord's
obligations with respect to the Security Deposit are those of a debtor and not
of a trustee. The Cleaning Deposit will be held by Landlord for cleaning of the
Premises after Tenant has vacated. Charges will consist of all cleaning costs to
restore the Premises to its original condition. All cleaning costs incurred by
Landlord will be charged against the cleaning deposit. Landlord will credit
Tenant with any overpayment, or charge Tenant for all cleaning costs exceeding
the amount of the Cleaning Deposit. Landlord is not required to keep Tenant's
Security Deposit or Cleaning Deposit separate from its general funds, and Tenant
is not entitled to interest on such Deposits.
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8. USE.
(a) Tenant's Use of the Premises. The Premises may be used for the use or uses
set forth in Subparagraph 1(l) only, and Tenant will not use or permit the
Premises to be used for any other purpose without the prior written consent of
Landlord, which consent Landlord may withhold in its sole and absolute
discretion. Nothing in this Lease will be deemed to give Tenant any exclusive
right to such use in the Project.
(b) Compliance. At Tenant's sole cost and expense, Tenant agrees to procure,
maintain and hold available for Landlord's inspection, all governmental licenses
and permits required for the proper and lawful conduct of Tenant's business from
the Premises, if any. Tenant agrees not to use, alter or occupy the Premises or
allow the Premises to be used, altered and occupied in violation of, and Tenant,
at its sole cost and expense, agrees to use and occupy the Premises, and cause
the Premises to be used and occupied, in compliance with: (i) any and all laws,
statutes, zoning restrictions, ordinances, rules, regulations, orders and
rulings now or hereafter in force and any requirements of any insurer, insurance
authority or duly constituted public authority having jurisdiction over the
Premises, the Building or the Project now or hereafter in force, (ii) the
requirements of the Board of Fire Underwriters and any other similar body, (iii)
the Certificate of Occupancy issued for the Building, and (iv) any recorded
covenants, conditions and restrictions and similar regulatory agreements, if
any, which affect the use, occupation or alteration of the Premises, the
Building and/or the Project. Tenant agrees to comply with the Rules and
Regulations referenced in Paragraph 28 below. Tenant agrees not to do or permit
anything to be done in or about the Premises which will in any manner obstruct
or interfere with the rights of other tenants or occupants of the Project, or
injure or unreasonably annoy them, or use or allow the Premises to be used for
any unlawful or unreasonably objectionable purpose. Tenant agrees not to place
or store any articles or materials outside of the Premises or to cause, maintain
or permit any nuisance or waste in, on, under or about the Premises or elsewhere
within the Project. Tenant shall not use or allow the Premises to be used for
lodging, bathing or the washing of clothes.
(c) Hazardous Materials. Except for ordinary and general office supplies, such
as copier toner, liquid paper, glue, ink and common household cleaning materials
(some or all of which may constitute"'Hazardous Materials" as defined in this
Lease), Tenant agrees not to cause or permit any Hazardous Materials to be
brought upon, stored, used, handled, generated, released or disposed of on, in,
under or about the Premises, the Building, the Common Areas or any other portion
of the Project by Tenant, its agents, employees, subtenants, assignees,
licensees, contractors or invitees (collectively, "Tenant's Parties"), without
the prior written consent of Landlord, which consent Landlord may withhold in
its sole and absolute discretion. Concurrently with the execution of this Lease,
Tenant agrees to complete and deliver to Landlord an Environmental Questionnaire
in the form of Exhibit "G" attached hereto. Upon the expiration or earlier
termination of this Lease, Tenant agrees to promptly remove from the Premises,
the Building and the Project, at its sole cost and expense, any and all
Hazardous Materials, including any equipment or systems containing Hazardous
Materials which are installed, brought upon, stored, used, generated or released
upon, in, under or about the Premises, the Building and/or the Project or any
portion thereof by Tenant or any of Tenant's Parties. To the fullest extent
permitted by law, Tenant agrees to promptly indemnify, protect, defend and hold
harmless Landlord and Landlord's partners, officers, directors, employees,
agents, property managers, asset managers, successors and assigns (collectively,
"Landlord Indemnified Parties") from and against any and all claims, damages,
judgments, suits, causes of action, losses, liabilities, penalties, fines,
expenses and costs (including, without limitation, clean-up, removal,
remediation and restoration costs, sums paid in settlement of claims, attorneys'
fees, consultant fees and expert fees and court costs) which arise or result
from the presence of Hazardous Materials on, in, under or about the Premises,
the Building or any other portion of the Project and which are caused or
permitted by Tenant or any of Tenant's Parties. Tenant agrees to promptly notify
Landlord of any release of Hazardous Materials in the Premises, the Building or
any other portion of the Project which Tenant becomes aware of during the Term
of this Lease, whether caused by Tenant or any other persons or entities. In the
event of any release of Hazardous Materials caused or permitted by Tenant or any
of Tenant's Parties, Landlord shall have the right, but not the obligation, to
cause Tenant to immediately take all steps Landlord deems necessary or
appropriate to remediate such release and prevent any similar future release to
the satisfaction of Landlord and Landlord's mortgagee(s). At all times during
the Term of this Lease, Landlord will have the right, but not the obligation, to
enter upon the Premises to inspect, investigate, sample and/or monitor the
Premises to determine if Tenant is in compliance with the terms of this Lease
regarding Hazardous Materials. As used in this Lease, the term "Hazardous
Materials" shall mean and include any hazardous or toxic materials, substances
or wastes as now or hereafter designated under any law, statute, ordinance,
rule, regulation, order or ruling of any agency of the State, the United States
Government or any local governmental authority, including, without limitation,
asbestos, petroleum, petroleum hydrocarbons and petroleum based products, urea
formaldehyde foam insulation, polychlorinated biphenyls ("PCBs"), and freon and
other chlorofluorocarbons. The provisions of this Subparagraph 8(c) will survive
the expiration or earlier termination of this Lease.
(d) Refuse and Sewage. Tenant agrees not to keep any trash, garbage, waste or
other refuse on the Premises except in sanitary containers and agrees to
regularly and frequently remove same from the Premises. Tenant shall keep all
containers or other equipment used for storage of such materials in a clean and
sanitary condition. Tenant shall properly dispose of all sanitary sewage and
shall not use the sewage disposal system for the disposal of anything except
sanitary sewage. Tenant shall keep the sewage disposal system free of all
obstructions and in good operating condition. If the volume of Tenant's trash
becomes excessive in Landlord's judgment, Landlord shall have the right to
charge Tenant for additional trash disposal services and/or to require that
Tenant contract directly for additional trash disposal services at Tenant's sole
cost and expense.
9. NOTICES. Any notice required or permitted to be given hereunder must be in
writing and may be given by personal delivery (including delivery by overnight
courier or an express mailing service) or by mail, if sent by registered or
certified mail. Notices to Tenant shall be sufficient if delivered to Tenant at
the Premises and notices to Landlord shall be sufficient if delivered to
Landlord at the address designated in Subparagraph 1(a). Either party may
specify a different address for notice purposes by written notice to the other,
except that the Landlord may in any event use the Premises as Tenants address
for notice purposes.
10. BROKERS. The parties acknowledge that the broker(s) who negotiated this
Lease are stated in Subparagraph 1(m). Landlord and Tenant each agree to
promptly indemnify, protect, defend and hold harmless the other from and against
any and all claims, damages, judgments, suits, causes of action, losses,
liabilities, penalties, fines, expenses and costs (including attorneys' fees and
court costs) resulting from any breach by the indemnifying party of the
foregoing representation, including, without limitation, any claims that may be
asserted by any broker, agent or finder undisclosed by the indemnifying party.
The foregoing mutual indemnity shall survive the expiration or earlier
termination of this Lease. Tenant agrees that Landlord will not recognize or
compensate any third party broker with regards to any renewals and/or expansions
unless such renewal or expansion rights are included within this Lease at the
time of execution by the parties and in Landlord's commission agreement with the
broker(s) specified in Subparagraph 1(m).
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11. SURRENDER; HOLDING OVER.
(a) Surrender. The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, shall not constitute a merger, and shall, at the
option of Landlord, operate as an assignment to Landlord of any or all subleases
or subtenancies. Upon the expiration or earlier termination of this Lease,
Tenant agrees to peaceably surrender the Premises to Landlord broom clean and in
a state of good order, repair and condition, ordinary wear and tear and casualty
damage excepted, with all of Tenant's personal property and alterations removed
from the Premises to the extent required under Paragraph 13 and all damage
caused by such removal repaired as required by Paragraph 13. The delivery of
keys to any employee of Landlord or to Landlord's agent or any employee thereof
alone will not be sufficient to constitute a termination of this Lease or a
surrender of the Premises.
(b) Holding Over. If Tenant remains in possession of all or any part of the
Premises after the expiration or earlier termination of the Term with the
express or implied consent of Landlord, Tenant's occupancy shall be a
month-to-month tenancy at a Monthly Base Rent equal to one hundred fifty percent
(150%) of the Monthly Base Rent payable during the last month of the Term. The
month-to-month tenancy shall be on the terms and conditions of this Lease except
as provided in (a) the preceding sentence, and (b) those provisions of this
Lease relating to (i) the term of this Lease as contain in Paragraph 3, (ii)
expansion rights given to Tenant under this Lease, if any, and (iii) extension
rights given to Tenant under this Lease, if any. Landlord's acceptance of rent
after such holding over with Landlord's consent shall not result in any other
tenancy or in a renewal of the original term of this Lease. If Tenant remains in
possession of all or any part of the Premises after the expiration or earlier
termination of the Term without Landlord's consent, Tenant's continued
possession shall be on the basis of a tenancy at sufferance and Tenant shall pay
as Monthly Base Rent during the holdover period an amount equal to the greater
of (x) one hundred fifty percent (150%) of the fair market rental (as reasonably
determined by Landlord) for the Premises, or (y) two hundred percent (200%) of
the Monthly Base Rent payable under this Lease for the last full month before
the date of expiration or earlier termination of the Term. In addition, during
such holdover period Tenant shall pay to Landlord all other sums required to be
paid by Tenant to Landlord under this Lease, including, without limitation,
Operating Expenses. If Tenant remains in possession of all or any part of the
Premises without Landlord's consent, Tenant agrees to promptly indemnify,
protect, defend and hold Landlord harmless from all claims, damages, judgments,
suits, causes of action, losses, liabilities, penalties, fines, expenses, and
costs, including, without limitation, attorneys' fees and costs, costs and
expenses incurred by Landlord in returning the Premises or any part thereof to
the condition in which Tenant was to surrender the same, and claims made by any
succeeding tenant founded on or resulting from Tenant's failure to surrender the
Premises. The provisions of the immediately preceding sentence shall survive the
expiration or earlier termination of this Lease. Nothing in this Subparagraph
11(b) shall be construed as implied consent by Landlord to any holding over by
Tenant. Landlord expressly reserves the right to require Tenant to surrender
possession of the Premises to Landlord as provided in this Lease on the
expiration or earlier termination of the Term of this Lease. The provision of
this Subparagraph 11(b) shall not be considered to limit or constitute a waiver
of any other rights or remedies of Landlord provided in this Lease or at law.
12. TAXES ON TENANT'S PROPERTY. Tenant agrees to pay before delinquency, all
taxes and assessments (real and personal) levied against Tenant's business
operations or any personal property, improvements, alterations, trade fixtures
or merchandise placed by Tenant in or about the Premises.
13. ALTERATIONS. Tenant shall not make any alterations to the Premises or any
other aspect of the Project, without Landlord's prior written consent, which
consent Landlord may withhold in its reasonable but subjective discretion. All
permitted alterations must be performed in compliance with Landlord's standard
rules and regulations regarding alterations. All alterations will become the
property of Landlord and will remain upon and be surrendered with the Premises
at the end of the Term of this Lease; provided, however, Landlord may require
Tenant to remove any or all alterations at the end of the Term of this Lease. If
Tenant fails to remove by the expiration or earlier termination of this Lease
all of its personal property, or any alterations identified by Landlord for
removal, Landlord may, at its option, treat such failure as a hold-over pursuant
to Subparagraph 11(b) above, and/or Landlord may (without liability to Tenant
for loss thereof) treat such personal property and/or alterations as abandoned
and, at Tenant's sole cost and expense and in addition to Landlord's other
rights and remedies under this Lease, at law or in equity: (a) remove and store
such items; and/or (b) upon ten (10) days' prior notice to Tenant, sell, discard
or otherwise dispose of all or any such items at private or public sale for such
price as Landlord may obtain or by other commercially reasonable means. Tenant
shall be liable for all costs of disposition of Tenant's abandoned property and
Landlord shall have no liability to Tenant with respect to any such abandoned
property. Landlord agrees to apply the proceeds of any sale of any such property
to any amounts due to Landlord under this Lease from Tenant (including
Landlord's attorneys' fees and other costs incurred in the removal, storage
and/or sale of such items), with any remainder to be paid to Tenant.
14. REPAIRS.
(a) Landlord's Obligations. Landlord agrees to repair and maintain the
structural portions of the Building, including the foundations, bearing and
exterior walls (excluding glass), subflooring and roof (excluding skylights),
and the unexposed electrical, plumbing and sewer systems, including those
portions of such systems which are outside the Premises, gutters and downspouts
on the Building and the heating, ventilating and air conditioning systems which
serve the Premises, unless such maintenance and repairs are caused iin part or
in whole by the act, neglect or omission of any duty by Tenant, its agents,
servants, employees or invitees, in which case Tenant will pay to Landlord, as
additional rent, the reasonable cost of such maintenance and repairs. Except as
provided in this Subparagraph 14(a), Landlord has no obligation to alter,
remodel, improve, repair, decorate or paint the Premises or any part thereof.
Landlord will not be liable for any failure to make any such repairs or to
perform any maintenance unless such failure shall persist for an unreasonable
time after written notice of the need of such repairs or maintenance is given to
Landlord by Tenant. Tenant will not be entitled to any abatement of rent and
Landlord will not have any liability by reason of any injury to or interference
with Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or in or to
fixtures, appurtenances and equipment therein. Tenant waives the right to make
repairs at Landlord's expense under any law, statute, ordinance, rule,
regulation, order or ruling (including, without limitation, to the extent the
Premises are located in California, the provisions of California Civil Code
Sections 1941 and 1942 and any successor statutes or laws of a similar nature).
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(b) Tenant's Obligations. Tenant agrees to keep, maintain and preserve the
Premises in a state of condition and repair consistent with the Building and,
when and if needed, at Tenant's sole cost and expense, to make all repairs to
the Premises and every part thereof including, without limitation, all walls,
storefronts, floors, ceilings, interior and exterior doors and windows and
fixtures and interior plumbing. Any such maintenance and repairs will be
performed by Landlord's contractor, or at Landlord's option, by such contractor
or contractors as Tenant may choose from an approved list to be submitted by
Landlord. Tenant agrees to pay all costs and expenses incurred in such
maintenance and repair within seven (7) days after billing by such contractor or
contractors. If Tenant refuses or neglects to repair and maintain the Premises
properly as required hereunder to the reasonable satisfaction of Landlord,
Landlord, at any time following ten (10) days from the date on which Landlord
makes a written demand on Tenant to effect such repair and maintenance, may
enter upon the Premises and make such repairs and/or maintenance, and upon
completion thereof, Tenant agrees to pay to Landlord as additional rent,
Landlord's costs for making such repairs plus an amount not to exceed ten
percent (10%) of such costs for overhead, within ten (10) days of receipt from
Landlord of a written itemized bill therefor. Any amounts not reimbursed by
Tenant within such ten (10) day period will bear interest at the Interest Rate
until paid by Tenant.
15. LIENS. Tenant agrees not to permit any mechanic's, materialmen's or other
liens to be filed against all or any part of the Project, the Building or the
Premises, nor against Tenant's leasehold interest in the Premises, by reason of
or in connection with any repairs, alterations, improvements or other work
contracted for or undertaken by Tenant or any other act or omission of Tenant or
Tenant's agents, employees, contractors, licensees or invitees. At Landlord's
request, Tenant agrees to provide Landlord with enforceable, conditional and
final lien releases (or other evidence reasonably requested by Landlord to
demonstrate protection from liens) from all persons furnishing labor and/or
materials at the Premises. Landlord will have the right at all reasonable times
to post on the Premises and record any notices of non-responsibility which it
deems necessary for protection from such liens. If any such liens are filed,
Tenant will, at its sale cost and expense, promptly cause such liens to be
released of record or bonded so that it no longer affects title to the Project,
the Building or the Premises. It Tenant fails to cause any such liens to be so
released or bonded within ten (10) days after filing thereof, such failure will
be deemed a material breach by Tenant under this Lease without the benefit of
any additional notice or cure period described in Paragraph 22 below, and
Landlord may, without waiving its rights and remedies based on such breach, and
without releasing Tenant from any of its obligations, cause such liens to be
released by any means it shall deem proper, including payment in satisfaction of
the claims giving rise to such liens. Tenant agrees to pay to Landlord within
ten (10) days after receipt of invoice from Landlord, any sum paid by Landlord
to remove such liens, together with interest at the Interest Rate from the date
of such payment by Landlord.
16. ENTRY BY LANDLORD. Landlord and its employees and agents will at all
reasonable times have the right to enter the Premises to inspect the same, to
show the Premises to prospective purchasers or tenants, to post notices of
nonresponsibility, and/or to repair the Premises as permitted or required by
this Lease. In exercising such entry rights, Landlord will endeavor to minimize,
as reasonably practicable, the interference with Tenant's business, and will
provide Tenant with reasonable advance notice of any such entry (except in
emergency situations). Landlord will at all times have and retain a key with
which to unlock all doors in the Premises, excluding Tenant's vaults and safes.
Tenant shall not alter any lock or install any new or additional locks or bolts
on any door of the Premises without Landlord's prior written consent and without
providing Landlord with a key to all such locks. Except in the case of the gross
negligence or willful misconduct of Landlord, any entry to the Premises obtained
by Landlord will not be construed or deemed to be a forcible or unlawful entry
into the Premises, or an eviction of Tenant from the Premises and Landlord will
not be liable to Tenant for any damages or losses resulting from any such entry.
17. UTILITIES AND SERVICES. Throughout the Term of this Lease, Tenant shall pay
directly to the utility company providing such service all costs for gas, heat,
light, power, electricity, telephone and other services metered, chargeable or
provided to the Premises. Landlord will not be liable to Tenant for any failure
to furnish any of the foregoing utilities and services if such failure is caused
by all or any of the following: (i) accident, breakage or repairs; (ii) strikes,
lockouts or other labor disturbance or labor dispute of any character; (iii)
governmental regulation, moratorium or other governmental action or inaction;
(iv) inability despite the exercise of reasonable diligence to obtain
electricity, water or fuel; or (v) any other cause beyond Landlord's reasonable
control. In addition, in the event of any stoppage or interruption of services
or utilities, Tenant shall not be entitled to any abatement or reduction of rent
(except as expressly provided in Subparagraphs 20(f) or 21(b) if such failure
results from a damage or taking described therein), no eviction of Tenant will
result from such failure and Tenant will not be relieved from the performance of
any covenant or agreement in this Lease because of such failure. In the event of
any failure, stoppage or interruption thereof, Landlord agrees to diligently
attempt to resume service promptly.
18. ASSUMPTION OF RISK AND INDEMNIFICATION.
(a) Assumption of Risk. Tenant, as a material part of the consideration to
Landlord, agrees that neither Landlord nor any Landlord Indemnified Parties (as
defined in Subparagraph 8(c) above) will be liable to Tenant for, and Tenant
expressly assumes the risk of and waives any and all claims it may have against
Landlord or any Landlord Indemnified Parties with respect to, (i) any and all
damage to property or injury to persons in, upon or about the Premises, the
Building or the Project resulting from the act or omission (except for the
grossly negligent or intentionally wrongful act or omission) of Landlord, (ii)
any such damage caused by other tenants or persons in or about the Building or
the Project, or caused by quasi-public work, (iii) any damage to property
entrusted to employees of the Building, (iv) any loss of or damage to property
by theft or otherwise, or (v) any injury or damage to persons or property
resulting from any casualty, explosion, falling plaster or other masonry or
glass, steam, gas, electricity, water or rain which may leak from any part of
the Building or any other portion of the Project or from the pipes, appliances
or plumbing works therein or from the roof, street or subsurface or from any
other place, or resulting from dampness. Neither Landlord nor any Landlord
Indemnified Parties will be liable for consequential damages arising out of any
loss of the use of the Premises or any equipment or facilities therein by Tenant
or any Tenant Parties (as defined in Subparagraph 8 (c) above) or for
interference with light. Tenant agrees to give prompt notice to Landlord in case
of fire or accidents in the Premises or the Building, or of defects therein or
in the fixtures or equipment.
(b) Indemnification. Tenant will be liable for, and agrees, to the maximum
extent permissible under applicable law, to promptly indemnify, protect, defend
and hold harmless Landlord and all Landlord Indemnified Parties, from and
against, any and all claims, damages, judgments, suits, causes of action,
losses, liabilities, penalties, fines, expenses and costs, including attorneys'
fees and court costs (collectively, "Indemnified Claims"), arising or resulting
from (i) any act or omission of Tenant or any Tenant Parties; (ii) the use of
the Premises and Common Areas and conduct of Tenant's business by Tenant or any
Tenant Parties, or any other activity, work or thing done, permitted or suffered
by Tenant or any Tenant Parties, in or about the Premises, the Building or
elsewhere within the Project; and/or (iii) any default by Tenant of any
obligations on Tenant's part to be performed under the terms of this Lease. In
case any action or proceeding is brought against Landlord or any Landlord
Indemnified Parties by reason of any such Indemnified Claims, Tenant, upon
notice from Landlord, agrees to promptly defend the same at Tenant's sole cost
and expense by counsel approved in writing by Landlord, which approval Landlord
will not unreasonably withhold.
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(c) Survival; No Release of Insurers. Tenant's indemnification obligations under
Subparagraph 18(b) will survive the expiration or earlier termination of this
Lease. Tenant's covenants, agreements and indemnification obligation in
Subparagraphs 18(a) and 18(b) above, are not intended to and will not relieve
any insurance carrier of its obligations under policies required to be carried
by Tenant pursuant to the provisions of this Lease.
19. INSURANCE.
(a) Tenant's Insurance. On or before the earlier to occur of (i) the
Commencement Date, or (ii) the date Tenant commences any work of any type in the
Premises pursuant to this Lease (which may be prior to the Commencement Date),
and continuing throughout the entire Term hereof and any other period of
occupancy, Tenant agrees to keep in full force and effect, at its sole cost and
expense, the insurance specified on Exhibit "F" attached hereto. Landlord
reserves the right to require any other form or forms of insurance as Tenant or
Landlord or any mortgagees of Landlord may reasonably require from time to time
in form, in amounts, and for insurance risks against which, a prudent tenant
would protect itself, but only to the extent coverage for such risks and amounts
are available in the insurance market at commercially acceptable rates. Landlord
makes no representation that the limits of liability required to be carried by
Tenant under the terms of this Lease are adequate to protect Tenant's interests
and Tenant should obtain such additional iinsurance or increased liability
limits as Tenant deems appropriate.
(b) Supplemental Tenant Insurance Requirements. All policies must be in a form
reasonably satisfactory to Landlord and issued by an insurer admitted to do
business in the State. All policies must be issued by insurers with a
policyholder rating of "A" and a financial rating of "X" in the most recent
version of Best's Key Rating Guide. All policies must contain a requirement to
notify Landlord (and Landlord's property manager and any mortgagees or ground
lessors of Landlord who are named as additional insureds, if any) in writing not
less than thirty (30) days prior to any material change, reduction in coverage,
cancellation or other termination thereof. Tenant agrees to deliver to Landlord,
as soon as practicable after placing the required insurance, but in any event
within the time frame specified in Subparagraph 19(a) above, certificate(s) of
insurance and/or if required by Landlord, certified copies of each
policy'evidencing the existence of such insurance and Tenant's compliance with
the provisions of this Paragraph 19. Tenant agrees to cause replacement policies
or certificates to be delivered to Landlord not less than thirty (30) days prior
to the expiration of any such policy or policies. If any such initial or
replacement policies or certificates are not furnished within the time(s)
specified herein, Landlord will have the right, but not the obligation, to
obtain such insurance as Landlord deems necessary to protect Landlord's
iinterests at Tenant's expense. Tenant's insurance under items 1 and 5 of
Exhibit "F" hereto must name Landlord, Landlord's property manager, and
Landlord's asset manager (and at Landlord's request, Landlord's rnortgagees and
ground lessors of which Tenant has been informed in writing) as additional
insureds and must also contain a provision that the insurance afforded by such
policy is primary insurance and any insurance carried by Landlord, Landlord's
property manager, Landlord's asset manager or Landlord's mortgagees or ground
lessors, if any, will be excess over and non-contributing with Tenant's
insurance.
(c) Waiver of Subrogation. Tenant's property insurance shall contain a clause
whereby the insurer waives all rights of recovery by way of subrogation against
Landlord. Tenant shall also obtain and furnish evidence to Landlord of the
waiver by Tenant's worker's compensation insurance carrier of all rights of
recovery by way of subrogation against Landlord.
20. DAMAGE OR DESTRUCTION.
(a) Partial Destruction. If the Premises or the Building are damaged by fire or
other casualty to an extent not exceeding twenty-five percent (25%) of the full
replacement cost thereof, and Landlord's contractor reasonably estimates in a
writing delivered to Landlord and Tenant that the damage thereto may be
repaired, reconstructed or restored to substantially its condition immediately
prior to such damage within one hundred eighty (180) days from the date of such
casualty, and Landlord will receive insurance proceeds sufficient to cover the
costs of such repairs, reconstruction and restoration (including proceeds from
Tenant and/or Tenant's insurance which Tenant is required to deliver to Landlord
pursuant to Subparagraph 20(d) below to cover Tenant's obligation for the costs
of repair, reconstruction and restoration of any portion of the tenant
improvements and any alterations for which Tenant is responsible under this
Lease), then Landlord agrees to commence and proceed diligently with the work of
repair, reconstruction and restoration and this Lease will continue in full
force and effect. (b) Substantial Destruction. Any damage or destruction to the
Premises or the Building which Landlord is not obligated to repair pursuant to
Subparagraph 20(a) above will be deemed a substantial destruction. In the event
of a substantial destruction, Landlord may elect to either: (i) repair,
reconstruct and restore the portion of the Building or the Premises damaged by
such casualty, in which case this Lease will continue in full force and effect,
subject to Tenant's termination right contained in Subparagraph 20(c) below; or
(ii) terminate this Lease effective as of the date which is thirty (30) days
after Tenant's receipt of Landlord's election to so terminate. (c) Termination
Rights. If Landlord elects to repair, reconstruct and restore pursuant to
Subparagraph 20(b)(i) herein above, and if Landlord's contractor estimates that
as a result of such damage, Tenant cannot be given reasonable use of and access
to the Premises within two hundred forty (240) days after the date of such
damage, then either Landlord or Tenant may terminate this Lease effective upon
delivery of written notice to the other within ten (10) days after Landlord
delivers notice to Tenant of its election to so repair, reconstruct or restore;
provided, however, Tenant shall have no right to terminate this Lease if
Landlord can relocate Tenant to other comparable Premises in the Building or the
Project within one hundred eighty (180) days after the date of such damage.
(d) Tenant's Costs and Insurance Proceeds. In the event of any damage or
destruction of all or any part of the Premises, Tenant agrees to immediately (i)
notify Landlord thereof, and (ii) deliver to Landlord all property insurance
proceeds received by Tenant with respect to any tenant improvements installed by
or at the cost of Tenant and any alterations, but excluding proceeds for
Tenant's furniture, fixtures, equipment and other personal property, whether or
not this Lease is terminated as permitted in this Paragraph 20, and Tenant
hereby assigns to Landlord all rights to receive such insurance proceeds. If for
any reason (including Tenant's failure to obtain required insurance), Tenant
fails to receive insurance proceeds covering the full replacement cost of any
tenant improvements and any alterations which are damaged, Tenant will be deemed
to have self-insured the replacement cost of such items, and upon any damage or
destruction thereto, Tenant agrees to immediately pay to Landlord the full
replacement cost of such items, less any insurance proceeds actually received by
Landlord from Landlord's or Tenant's insurance with respect to such items.
(e) Abatement of Rent. In the event of any damage, repair, reconstruction and/or
restoration described in this Paragraph 20, rent will be abated or reduced, as
the case may be, from the date of such casualty in proportion to the degree to
which Tenant's use of the Premises is impaired during such period of repair
until such use is restored. Except for abatement of rent as provided herein
above, Tenant will not be entitled to any compensation or damages for loss of,
or interference with, Tenants business or use or access of all or any part of
the Premises or for lost profits or any other consequential damages of any kind
or nature, which result from any such damage, repair, reconstruction or
restoration.
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(f) Damage Near End of Term. Landlord and Tenant shall each have the right to
terminate this Lease if any damage to the Premises or the Building occurs during
the last twelve (12) months of the Term of this Lease where Landlord's
contractor estimates in a writing delivered to Landlord and Tenant that the
repair, reconstruction or restoration of such damage cannot be completed within
sixty (60) days after the date of such casually. If either party desires to
terminate this Lease under this Subparagraph (f), it shall provide written
notice to the other party of such election within ten (10) days after receipt of
Landlord's contractors repair estimates. (g) Waiver of Termination Right.
Landlord and Tenant agree that the foregoing provisions of this Paragraph 20 are
to govern their respective rights and obligations in the event of any damage or
destruction and supersede and are in lieu of the provisions of any applicable
law, statute, ordinance, rule, regulation, order or ruling now or hereafter in
force which provide remedies for damage or destruction of leased premises
(including, without limitation, to the extent the Premises are located in
California, the provisions of California Civil Code Section 1932, Subsection 2,
and Section 1933, Subsection 4 and any successor statute or laws of a similar
nature).
21. EMINENT DOMAIN.
(a) Substantial Taking. If the whole of the Premises, or such part thereof as
shall substantially interfere with Tenant's use and occupancy of the Premises,
as contemplated by this Lease, is taken for any public or quasi-public purpose
by any lawful power or authority by exercise of the right of appropriation,
condemnation or eminent domain, or sold to prevent such taking, either party
will have the right to terminate this Lease effective as of the date possession
is required to be surrendered to such authority. (b) Partial Taking; Abatement
of Rent. In the event of a taking of a portion of the Premises which does not
substantially iinterfere with Tenant's use and occupancy of the Premises
including any temporary taking of ninety (90) days or less, then, neither party
will have the right to terminate this Lease and Landlord will thereafter proceed
to make a functional unit of the remaining portion of the Premises (but only to
the extent Landlord receives proceeds therefor from the condemning authority),
and rent will be abated with respect to the part of the Premises which Tenant is
deprived of on account of such taking. Notwithstanding the immediately preceding
sentence to the contrary, if any part of the Building or the Project is taken
(whether or not such taking substantially interferes with Tenant's use of the
Premises), Landlord may terminate this Lease upon thirty (30) days' prior
written notice to Tenant if Landlord also terminates the leases of the other
tenants of the Building which are leasing comparably sized space for comparable
lease terms.
(c) Condemnation Award. In connection with any taking of the Premises or the
Building, Landlord will be entitled to receive the entire amount of any award
which may be made or given in such taking or condemnation, without deduction or
apportionment for any estate or interest of Tenant, it being expressly
understood and agreed by Tenant that no portion of any such award will be
allowed or paid to Tenant for any so-called bonus or excess value of this Lease,
and such bonus or excess value will be the sole property of Landlord. Tenant
agrees not to assert any claim against Landlord or the taking authority for any
compensation because of such taking (including any claim for bonus or excess
value of this Lease); provided, however, if any portion of the Premises is
taken, Tenant will have the right to recover from the condemning authority (but
not from Landlord) any compensation as may be separately awarded or recoverable
by Tenant for the taking of Tenant's furniture, fixtures, equipment and other
personal property within the Premises, for Tenant's relocation expenses, and for
any loss of goodwill or other damage to Tenant's business by reason of such
taking.
22. DEFAULTS AND REMEDIES.
(a) Defaults. The occurrence of any one or more of the following events will be
deemed a default by Tenant: (i) The abandonment or vacation of the Premises by
Tenant.
(ii) The failure by Tenant to make any payment of rent or additional rent or
any other payment required to be made by Tenant hereunder, as and when due,
where such failure continues for a period of three (3) days after written notice
thereof from Landlord to Tenant; provided, however, that any such notice will be
in lieu of, and not in addition to, any notice required under applicable law
(including, without limitation, to the extent the Premises are located in
California, the provisions of California Code of Civil Procedure Section 1161
regarding unlawful detainer actions or any successor statute or law of a similar
nature).
(iii) The failure by Tenant to observe or perform any of the express or implied
covenants or provisions of this Lease to be observed or performed by Tenant,
other than as specified in Subparagraph 22(a)(i) or (ii) above, where such
failure continues for a period of five (5) days after written notice thereof
from Landlord to Tenant. The provisions of any such notice will be in lieu of,
and not in addition to, any notice required under applicable law (including,
without limitation, to the extent the Premises are located in California,
California Code of Civil Procedure Section 1161 regarding unlawful detainer
actions and any successor statute or similar law). If the nature of Tenant's
default is such that more than five (5) days are reasonably required for its
cure, then Tenant will not be deemed to be in default if Tenant, with Landlord's
concurrence, commences such cure within such five (5) day period and thereafter
diligently prosecutes such cure to completion.
(iv) (A) The making by Tenant of any general assignment for the benefit of
creditors; (B) the filing by or against Tenant of a petition to have Tenant
adjudged a bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within sixty (60) days); (C) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises of of Tenant's interest in this Lease, where possession
is not restored to Tenant within thirty (30) days; or (D) the attachment,
execution or other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease where such seizure
is not discharged within thirty (30) days. (b) Landlord's Remedies; Termination.
In the event of any default by Tenant, in addition to any other remedies
available to Landlord at law or in equity under applicable law (including,
without limitation, to the extent the Premises are located in California, the
remedies of Civil Code Section 1951.4 and any successor statute or similar law),
Landlord will have the immediate right and option to terminate this Lease and
all rights of Tenant hereunder. If Landlord elects to terminate this Lease then,
to the extent permitted under applicable law, Landlord may recover from Tenant:
(i) the worth at the time of award of any unpaid rent which had been earned at
the time of such termination; plus (ii) the worth at the time of award of the
amount by which the unpaid rent which would have been earned after termination
until the time of award exceeds the amount of such rent loss that Tenant proves
could have been reasonably avoided, plus (iii) the worth at the time of award of
the amount by which the unpaid rent for the balance of the Term after the time
of award exceeds the amount of such rent loss that Tenant proves could be
reasonably avoided; plus (iv) any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which, in the ordinary course of things, results
therefrom including, but not limited to: attorneys' fees and costs; brokers'
commissions; the costs of refurbishment, alterations, renovation and repair of
the Premises, and removal (including the repair of any damage caused by such
removal) and
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storage (or disposal) of Tenant's personal property, equipment, fixtures,
alterations, the tenant improvements and any other items which Tenant is
required under this Lease to remove but does not remove, as well as the
unamortized value of any free rent, reduced rent, free parking, reduced rate
parking and any tenant improvement allowance or other costs or economic
concessions provided, paid, granted or incurred by Landlord pursuant to this
Lease. As used in Subparagraphs 22(b)(i) and (ii) above, the "worth at the time
of award" is computed by allowing interest at the Interest Rate. As used in
Subparagraph 22(b)(iii) above, the "worth at the time of award" is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus one percent (1%).
(c) Landlord's Remedies; Re-Entry Rights. In the event of any default by Tenant,
in addition to any other remedies available to Landlord under this Lease, at law
or in equity, Landlord will also have the right, with or without terminating
this Lease, to re-enter the Premises and remove all persons and property from
the Premises; such property may be removed and stored in a public warehouse or
elsewhere and/or disposed of at the sole cost and expense of and for the account
of Tenant in accordance with the provisions of Paragraph 13 of this Lease or any
other procedures permitted by applicable law. No re-entry or taking possession
of the Premises by Landlord pursuant to this Subparagraph 22(c) will be
construed as an election to terminate this Lease unless a written notice of such
intention is given to Tenant or unless the termination thereof is decreed by a
court of competent jurisdiction.
(d) Landlord's Remedies; Re-Letting. If Landlord does not elect to terminate
this Lease, Landlord may from time to time, without terminating this Lease,
either recover all rent as it becomes due or relate the Premises or any part
thereof on terms and conditions as Landlord in its sole and absolute discretion
may deem advisable with the right to make alterations and repairs to the
Premises in connection with such reletting. If Landlord elects to relet the
Premises, then rents received by Landlord from such reletting will be applied:
first, to the payment of any indebtedness other than rent due hereunder from
Tenant to Landlord; second, to the payment of any cost of such reletting; third,
to the payment of the cost of any alterations and repairs to the Premises
incurred in connection with such reletting; fourth, to the payment of rent due
and unpaid hereunder and the residue, if any, will be held by Landlord and
applied to payment of future rent as the same may become due and payable
hereunder. Should that portion of such rents received from such reletting during
any month, which is applied to the payment of rent hereunder, be less than the
rent payable during that month by Tenant hereunder, then Tenant agrees to pay
such deficiency to Landlord immediately upon demand therefor by Landlord. Such
deficiency will be calculated and paid monthly.
(e) Landlord's Remedies; Performance for Tenant. All covenants and agreements to
be performed by Tenant under any of the terms of this Lease are to be performed
by Tenant at Tenant's sole cost and expense and without any abatement of rent.
If Tenant fails to pay any sum of money owed to any party other than Lahdlord,
for which it is liable under this Lease, or if Tenant fails to perform any other
act on its part to be performed hereunder, and such failure continues for ten
(10) days after notice thereof by Landlord, Landlord may, without waiving or
releasing Tenant from its obligations, but shall not be obligated to, make any
such payment or perform any such other act to be made or performed by Tenant.
Tenant agrees to reimburse Landlord upon demand for all sums so paid by Landlord
and all necessary incidental costs, together with interest thereon at the
Interest Rate, from the date of such payment by Landlord until reimbursed by
Tenant. This remedy shall be in addition to any other right or remedy of
Landlord set forth in this Paragraph 22.
(f) Late Payment. If Tenant fails to pay any installment of rent when due or if
Tenant fails to make any other payment for which Tenant is obligated under this
Lease when due, such late amount will accrue interest at the Interest Rate until
such amount is paid by Tenant to Landlord. In addition, Tenant agrees to pay to
Landlord concurrently with such late payment amount, as additional rent, a late
charge equal to ten percent (10%) of the amount due to compensate Landlod for
the extra costs Landlord will incur as a result of such late payment. Landlord
and Tenant agree that such late charge represents a fair, and reasonable
estimate of the costs that Landlord will incur by reason of any such late
payment. Acceptance of any such interest and late charge will not constitute a
waiver of the Tenant's default with respect to the overdue amount or prevent
Landlord from exercising any of the other rights and remedies available to
Landlord. If Tenant incurs a late charge more than three (3) times in any period
of twelve (12) months during the Lease Term, then notwiithstanding that Tenant
cures the late payments for which such late charges are imposed, Landlord will
have the right to require Tenant thereafter to pay all installments of Monthly
Base Rent quarterly in advance in the form of a cashier's check throughout the
remainder of the Lease Term. Any payments of any kind returned for insufficient
funds will be subject to an additional handling charge of $25.00, and
thereafter, Landlord may require Tenant to pay all future payments of rent or
other sums due by money order or cashier's check.
(g) Rights and Remedies Cumulative. All rights, options and remedies of Landlord
contained in this Lease will be construed and held to be cumulative, and no one
of them will be exclusive of the other, and Landlord shall have the right to
pursue any one or all of such remedies or any other remedy or relief which may
be provided by law or in equity, whether or not stated in this Lease. Nothing in
this Paragraph 22 will be deemed to limit or otherwise affect Tenant's
indemnification of Landlord pursuant to any provision of this Lease.
23. LANDLORD'S DEFAULT. Landlord will not be in default in the performance of
any obligation required to be performed by Landlord under this Lease unless
Landlord fails to perform such obligation within thirty (30) days after the
receipt of written notice from Tenant specifying in detail Landlord's failure to
perform; provided however, that if the nature of Landlord's obligation is such
that more than thirty (30) days are required for performance, then Landlord will
not be deemed in default if it commences such performance within such thirty
(30) day period and thereafter diligently pursues the same to completion. Upon
any default by Landlord, Tenant may exercise any of its rights provided at law
or in equity, subject to the limitations on liability set forth in Paragraph 35
of this Lease.
24. ASSIGNMENT AND SUBLETTING.
(a) Restriction on Transfer. Except as expressly provided in this Paragraph 24,
Tenant will not, either voluntarily or by operation of law, assign or encumber
this Lease or any interest herein or sublet the Premises or any part thereof, or
permit the use or occupancy of the Premises by any party other than Tenant (any
such assignment, encumbrance, sublease or the like will sometimes be referred to
as a "Transfer"), without the prior written consent of Landlord, which consent
Landlord will not unreasonably withhold. For purposes of this Paragraph 24, if
Tenant is a corporation, partnership or other entity, any transfer, assignment,
encumbrance or hypothecation of fifty percent (50%) or more (individually or in
the aggregate) of any stock or other ownership interest in such entity, and/or
any transfer, assignment, hypothecation or encumbrance of any controlling
ownership or voting interest in such entity, will be deemed a Transfer and will
be subject to all of the restrictions and provisions contained in this Paragraph
24; provided, however, this provision will not apply to public corporations, the
stock of which is traded through a public stock exchange or over the counter
system. (b) Transfer Notice. If Tenant desires to effect a Transfer, then at
least thirty (30) days prior to the date when Tenant desires the Transfer to be
effective (the "Transfer Date"), Tenant agrees to give Landlord a notice (the
"Transfer Notice"), stating the name,
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address and business of the proposed assignee, sublessee or other transferee
(sometimes referred to hereinafter as "Transferee"), reasonable information
(including references) concerning the character, ownership, and financial
condition of the proposed Transferee, the Transfer Date, any ownership or
commercial relationship between Tenant and the proposed Transferee, and the
consideration and all other material terms and conditions of the proposed
Transfer, all in such detail as Landlord may reasonably require.
(c) Landlord's Options. Within fifteen (15) days of Landlord's receipt of any
Transfer Notice, and any additional information requested by Landlord concerning
the proposed Transferee's financial responsibility, Landlord will notify Tenant
of its election to do one of the following: (i) consent to the proposed Transfer
subject to such reasonable conditions as Landlord may impose in providing such
consent; (ii) refuse such consent, which refusal shall be on reasonable grounds;
or (iii) terminate this Lease as to all or such portion of the Premises which is
proposed to be sublet or assigned and recapture all or such portion of the
Premises for reletting by Landlord.
(d) Additional Conditions. A condition to Landlord's consent to any Transfer of
this Lease will be the delivery to Landlord of a true copy of the fully executed
instrument of assignment, sublease, transfer or hypothecation, in form and
substance reasonably satisfactory to Landlord. Tenant agrees to pay to Landlord,
as additional rent, all sums and other consideration payable to and for the
benefit of Tenant by the assignee or sublessee in excess of the rent payable
under this Lease for the same period and portion of the Premises. In calculating
excess rent or other consideration which may be payable to Landlord under this
paragraph, Tenant will be entitled to deduct commercially reasonable third party
brokerage commissions and attorneys' fees and other amounts reasonably and
actually expended by Tenant in connection with such assignment or subletting if
acceptable written evidence of such expenditures is provided to Landlord. No
Transfer will 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. Landlord may require that any
Transferee remit directly to Landlord on a monthly basis, all monies due Tenant
by said Transferee. Consent by Landlord to one Transfer will not be deemed
consent to any subsequent Transfer. In the event of default by any Transferee 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 Transferee or successor. If Tenant effects a Transfer or
requests the consent of Landlord to any Transfer (whether or not such Transfer
is consummated), then, upon demand, Tenant agrees to pay Landlord a
non-refundable administrative fee of not less than One Hundred Dollars ($100.00)
and not more than Five Hundred Dollars ($500.00), plus Landlord's reasonable
attorneys'fees.
25. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any mortgagee or beneficiary with a deed of trust
encumbering the Building and/or the Project, or any lessor of a ground or
underlying lease with respect to the Building, this Lease will be subject and
subordinate at all times to: (i) all ground leases or underlying leases which
may now exist or hereafter be executed affecting the Building; and (ii) the lien
of any mortgage or deed of trust which may now exist or hereafter be executed
for which the Building, the Project or any leases thereof, or Landlord's
interest and estate in any of said items, is specified as security.
Notwithstanding the foregoing, Landlord reserves the right to subordinate any
such ground leases or underlying leases or any such liens to this Lease. If any
such ground lease or underlying lease terminates for any reason or any such
mortgage or deed of trust is foreclosed or a conveyance in lieu of foreclosure
is made for any reason, at the election of Landlord's successor in interest,
Tenant agrees to attorn to and become the tenant of such successor in which
event Tenant's right to possession of the Premises will not be disturbed as long
as Tenant is not in default under this Lease. Tenant hereby waives its rights
under any law which gives or purports to give Tenant any right to terminate or
otherwise adversely affect this Lease and the obligations of Tenant hereunder in
the event of any such foreclosure proceeding or sale. Tenant covenants and
agrees to execute and deliver, upon demand by Landlord and in the form
reasonably required by Landlord, any additional documents evidencing the
priority or subordination of this Lease and Tenant's attornment agreement with
respect to any such ground lease or underlying leases or the lien of any such
mortgage or deed of trust. If Tenant fails to sign and return any such documents
within ten (10) days of receipt, Tenant will be in default hereunder.
26. ESTOPPEL CERTIFICATE. Within ten (10) days following any written request
which Landlord may make from time to time, Tenant agrees to execute and deliver
to Landlord an estoppel certificate, in Landlord's standard form or as may
reasonably be required by Landlord's lender. Landlord and Tenant intend that any
statement delivered pursuant to this Paragraph 26 may be relied upon by any
mortgagee, beneficiary, purchaser or prospective purchaser of the Building or
any interest therein. Tenant's failure to deliver such statement within such
time will be conclusive upon Tenant (i) that this Lease is in full force and
effect, without modification except as may be represented by Landlord, (ii) that
there are no uncured defaults in Landlord's performance, and (iii) that not more
than one (1) month's rent has been paid in advance. Without limiting the
foregoing, if Tenant fails to deliver any such statement within such ten (10)
day period, Landlord may deliver to Tenant an additional request for such
statement and Tenant's failure to deliver such statement to Landlord within ten
(10) days after delivery of such additional request will constitute a default
under this Lease. Tenant agrees to indemnify and protect Landlord from and
against any and all claims, damages, losses, liabilities and expenses (including
attorneys' fees and costs) attributable to any failure by Tenant to timely
deliver any such estoppel certificate to Landlord as required by this Paragraph
26.
27. BUILDING PLANNING. If Landlord requires the Premises for use in conjunction
with another suite or for other reasons connected with the planning program for
the Building or the Project, Landlord will have the right, upon sixty (60) days'
prior written notice to Tenant, to move Tenant to other space in the Building of
substantially similar size as the Premises, and with tenant improvements of
substantially similar age, quality and layout as then existing in the Premises.
Any such relocation will be at Landlord's cost and expense, including the cost
of providing such substantially similar tenant improvements (but not any
furniture or personal property) and Tenant's reasonable moving, telephone
installation and stationary reprinting costs. If Landlord so relocates Tenant,
the terms and conditions of this Lease will remain in full force and effect and
apply to the new space, except that (a) a revised Exhibit "A" will become part
of this Lease and will reflect the location of the new space, (b) Paragraph 1 of
this Lease will be amended to include and state all correct data as to the new
space, (c) the new space will thereafter be deemed to be the "Premises", and (d)
all economic terms and conditions (e.g. rent, etc.) will be adjusted on a per
square foot basis based on the total number of rentable square feet of area
contained in the new space. Landlord and Tenant agree to cooperate fully with
one another in order to minimize the inconvenience to Tenant resulting from any
such relocation.
28. RULES AND REGULATIONS. Tenant agrees to faithfully observe and comply with
the "Rules and Regulations," a copy of which is attached hereto and incorporated
herein by this reference as Exhibit "E," and all reasonable and
nondiscriminatory modifications thereof and additions thereto from time to time
put into effect by Landlord. Landlord will not be responsible to Tenant for the
violation or non-performance by any other tenant or occupant of the Building of
any of the Rules and Regulations.
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29. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND LESSORS. Tenant,
within ten (10) days after request therefor, agrees to execute any reasonable
amendments to this Lease which may be requested by any lender or ground lessor
of the Project, provided any such amendments do not increase the obligations of
Tenant under this Lease or adversely affect the leasehold estate created by this
Lease. In the event of any default on the part of Landlord, Tenant will give
notice by registered or certified mail to any beneficiary of a deed of trust or
mortgage covering the Premises or ground lessor of Landlord whose address has
been furnished to Tenant, and Tenant agrees to offer such beneficiary, mortgagee
or ground lessor a reasonable opportunity to cure the default (including with
respect to any such beneficiary or mortgagee, time to obtain possession of the
Premises, subject to this Lease and Tenant's rights hereunder, by power of sale
or a judicial foreclosure, if such should prove necessary to effect a cure).
30. DEFINITION OF LANDLORD. The term "Landlord," as used in this Lease, so far
as covenants or obligations on the part of Landlord are concerned, means and
includes only the owner or owners, at the time in question, of the fee title of
the Premises or the lessees under any ground lease, if any. In the event of any
transfer, assignment or other conveyance or transfers of any such title (other
than a transfer for security purposes only), Landlord herein named (and in case
of any subsequent transfers or conveyances, the then grantor) will be
automatically relieved from and after the date of such transfer, assignment or
conveyance of all liability as respects the performance of any covenants or
obligations on the part of Landlord contained in this Lease thereafter to be
performed, so long as the transferee assumes in writing all such covenants and
obligations of Landlord arising after the date of such transfer. Landlord and
Landlord's transferees and assignees have the absolute right to transfer all or
any portion of their respective title and interest in the Project, the Building,
the Premises and/or this Lease without the consent of Tenant, and such transfer
or subsequent transfer will not be deemed a violation on Landlord's part of any
of the terms and conditions of this Lease.
31. WAIVER. The waiver by either party of any breach of any term, covenant or
condition herein contained will not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition herein contained,
nor will any custom or practice which may develop between the parties in the
administration of the terms hereof be deemed a waiver of or in any way affect
the right of either party to insist upon performance in strict accordance with
said terms. The subsequent acceptance of rent or any other payment hereunder by
Landlord will not be deemed to be a waiver of any preceding breach by Tenant of
any term, covenant or condition of this Lease, other than the failure of Tenant
to pay the particular rent so accepted, regardless of Landlord's knowledge of
such preceding breach at the time of acceptance of such rent. No acceptance by
Landlord of a lesser sum than the basic rent and additional rent or other sum
then due will be deemed to be other than on account of the earliest installment
of such rent or other amount due, nor will any endorsement or statement on any
check or any letter accompanying any check 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 such installment or other amount or pursue any
other remedy provided in this Lease. The consent or approval of Landlord to or
of any act by Tenant requiring Landlord's consent or approval will not be deemed
to waive or render unnecessary Landlord's consent or approval to or of any
subsequent similar acts by Tenant.
32. PARKING. So long as this Lease is in effect and provided Tenant is not in
default hereunder, Landlord grants to Tenant, Tenant's visitors and guests a
non-exclusive license to use the parking areas which serve the Building subject
to the terms and conditions of this Paragraph 32 and the Rules and Regulations
regarding parking contained in Exhibit "E" attached hereto. Tenant will not use
or allow any of Tenant's employees or guests to use any parking spaces which
have been specifically assigned by Landlord to other tenants or occupants or for
other uses such as visitor parking or which have been designated by any
governmental entity as being restricted to certain uses. Landlord may assign any
unreserved and unassigned parking spaces and/or make all or any portion of such
spaces reserved, if Landlord reasonably determines that it is necessary for
orderly and efficient parking or for any other reasonable reason. Tenant agrees
to cause its employees, subtenants, assignees, contractors, suppliers, customers
and invitees to comply with the Rules and Regulations. Landlord reserves the
right from time to time to modify and/or adopt such other reasonable and
non-discriminatory rules and regulations for the parking facilities as it deems
reasonably necessary for the operation of the parking facilities.
33. FORCE MAJEURE. If either Landlord or Tenant is delayed, hindered in or
prevented from the performance of any act required under this Lease by reason of
strikes, lock-outs, labor troubles, inability to procure standard materials,
failure of power, restrictive governmental laws, regulations or orders or
governmental action or inaction (including failure, refusal or delay in issuing
permits, approvals and/or authorizations which is not the result of the action
or inaction of the party claiming such delay), riots, civil unrest or
insurrection, war, fire, earthquake, flood or other natural disaster, unusual
and unforeseeable delay which results from an interruption of any public
utilities (e.g., electricity, gas, water, telephone) or other unusual and
unforeseeable delay not within the reasonable control of the party delayed in
performing work or doing acts required under the provisions of this Lease, then
performance of such act will be excused for the period of the delay and the
period for the performance of any such act will be extended for a period
equivalent to the period of such delay. The provisions of this Paragraph 33 will
not operate to excuse Tenant from prompt payment of rent or any other payments
required under the provisions of this Lease.
34. SIGNS. Landlord will designate the location on the Premises, if any, for one
or more Tenant identification sign(s). Tenant has no right to install Tenant
identification signs in any other location in, on or about the Premises or the
Project and will not display or erect any other signs, displays or other
advertising materials that are visible from the exterior of the Building or from
within the Building in any interior or exterior common areas. The size, design,
color and other physical aspects of any and all permitted sign(s) will be
subject to (i) Landlord's written approval prior to installation, which approval
may be withheld in Landlord's discretion, (ii) any covenants, conditions or
restrictions and sign criteria governing the Project, and (iii) any applicable
municipal or governmental permits and approvals. Tenant will be solely
responsible for all costs for installation, maintenance, repair and removal of
any Tenant identification sign(s). If Tenant fails to remove Tenant's sign(s)
upon termination of this Lease and repair any damage caused by such removal,
Landlord may do so at Tenant's sole cost and expense. Tenant agrees to reimburse
Landlord for all costs incurred by Landlord to effect any installation,
maintenance or removal on Tenant's account, which amount will be deemed
additional rent, and may include, without limitation, all sums disbursed,
incurred or deposited by Landlord including Landlord's costs, expenses and
actual attorneys' fees with interest thereon at the Interest Rate from the date
of Landlord's demand until paid by Tenant. Any sign rights granted to Tenant
under this Lease are personal to Tenant and may not be assigned, transferred or
otherwise conveyed to any assignee or subtenant of Tenant without Landlord's
prior written consent, which consent Landlord may withhold in its sole and
absolute discretion.
35. LIMITATION ON LIABILITY. In consideration of the benefits accruing
hereunder, Tenant on behalf of itself and all successors and assigns of Tenant
covenants and agrees that, in the event of any actual or alleged failure, breach
or default hereunder by Landlord: (a) Tenant's recourse against Landlord for
monetary damages will be limited to Landlord's interest in the Building
including, subject to the prior rights of any Mortgagee, Landlord's interest in
the rents of the Building and any insurance proceeds payable to Landlord; (b)
except as may be necessary to secure jurisdiction of the partnership, no partner
of landlord shall be sued or named as a party in any
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suit or action and no service of process shall be made against any partner of
Landlord; (c) no partner of Landlord shall be required to answer or otherwise
plead to any service of process; (d) no judgment will be taken against any
partner of Landlord and any judgment taken against any partner of Landlord may
be vacated and set aside at any time after the fact; (a) no writ of execution
will be levied against the assets of any partner of Landlord; (f) the
obligations under this Lease do not constitute personal obligations of the
individual partners, directors, officers or shareholders of Landlord, and Tenant
shall not seek recourse against the individual partners, directors, officers or
shareholders of Landlord or any of their personal assets for satisfaction of any
liability in respect to this Lease; and (g) these covenants and agreements are
enforceable both by Landlord and also by any partner of Landlord.
36. FINANCIAL STATEMENTS. Prior to the execution of this Lease by Landlord and
at any time during the Term of this Lease upon ten (10) days prior written
notice from Landlord, Tenant agrees to provide Landlord with a current financial
statement for Tenant and any guarantors of Tenant and financial statements for
the two (2) years prior to the current financial statement year for Tenant and
any guarantors of Tenant. Such statements are to be prepared in accordance with
generally accepted accounting principles and, if such is the normal practice of
Tenant, audited by an independent certified public accountant.
37. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that upon Tenant
paying the rent required under this Lease and paying all other charges and
performing all of the covenants and provisions on Tenant's part to be observed
and performed under this Lease, Tenant may peaceably and quietly have, hold and
enjoy the Premises in accordance with this Lease.
38. MISCELLANEOUS.
(a) Conflict of Laws. This Lease shall be governed by and construed solely
pursuant to the laws of the State, without giving effect to choice of law
principles thereunder.
(b) Successors and Assigns. Except as otherwise provided in this Lease, all of
the covenants, conditions and provisions of this Lease shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns. (c) Professional Fees and
Costs. If either Landlord or Tenant should bring suit against the other with
respect to this Lease, then all costs and expenses, including without
limitation, actual professional fees and costs such as appraisers', accountants'
and attorneys' fees and costs, incurred by the party which prevails in such
action, whether by final judgment or out of court settlement, shall be paid by
the other party, which obligation on the part of the other party shall be deemed
to have accrued on the date of the commencement of such action and shall be
enforceable whether or not the action is prosecuted to judgment. As used herein,
attorneys' fees and costs shall include, without limitation, attorneys' fees,
costs and expenses incurred in connection with any (i) post-judgment motions;
(ii) contempt proceedings; (iii) garnishment, levy and debtor and third party
examination; (iv) discovery; and (v) bankruptcy litigation. Tenant agrees to pay
all collection agency fees and attorneys' fees charged to Landlord in connection
with any late payment or non-payment of rent or any other amounts due under this
Lease including, without limitation, a fee of $75.00 for the preparation of any
demand for delinquent rent or any notice to pay rent or quit.
(d) Terms and Headings. The words "Landlord" and "Tenant" as used herein shall
include the plural as well as the singular. Words used in any gender include
other genders. The paragraph headings of this Lease are not a part of this Lease
and shall have no effect upon the construction or interpretation of any part
hereof. (e) Time. Time is of the essence with respect to the performance of
every provision of this Lease in which time of performance is a factor. (f)
Prior Agreement; Amendments. This Lease constitutes and is intended by the
parties to be a final, complete and exclusive statement of their entire
agreement with respect to the subject matter of this Lease. This Lease
supersedes any and all prior and contemporaneous agreements and understandings
of any kind relating to the subject matter of this Lease. There are no other
agreements, understandings, representations, warranties, or statements, either
oral or in written form, concerning the subject matter of this Lease. No
alteration, modification, amendment or interpretation of this Lease shall be
binding on the parties unless contained in a writing which is signed by both
parties.
(g) Separability. The provisions of this Lease shall be considered separable
such that if any provision or part of this Lease is ever held to be invalid,
void or illegal under any law or ruling, all remaining provisions of this Lease
shall remain in full force and effect to the maximum extent permitted by law.
(h) Recording. Neither Landlord nor Tenant shall record this Lease nor a short
form memorandum thereof without the consent of the other. (i) Counterparts. This
Lease may be executed in one or more counterparts, each of which shall
constitute an original and all of which shall be one and the same agreement.
(j) Nondisclosure of Lease Terms. Tenant acknowledges and agrees that the terms
of this Lease are confidential and constitute proprietary information of
Landlord. Disclosure of the terms could adversely affect the ability of Landlord
to negotiate other leases and impair Landlord's relationship with other tenants.
Accordingly, Tenant agrees that it, and its partners, officers, directors,
employees, agents and attorneys, shall not intentionally and voluntarily
disclose the terms and conditions of this Lease to any newspaper or other
publication or any other tenant or apparent prospective tenant of the Building
or other portion of the Project, or real estate agent, either directly or
indirectly, without the prior written consent of Landlord, provided, however,
that Tenant may disclose the terms to prospective subtenants or assignees under
this Lease.
(k) Non-Discrimination. Tenant acknowledges and agrees that there shall be no
discrimination against, or segregation of, any person, group of persons, or
entity on the basis of race, color, creed, religion, age, sex, marital status,
national origin, or ancestry in the leasing, subleasing, transferring,
assignment, occupancy, tenure, use, or enjoyment of the Premises, or any portion
thereof.
39. EXECUTION OF LEASE.
(a) Joint and Several Obligations. If more than one person executes this Lease
as Tenant, their execution of this Lease will constitute their covenant and
agreement that (i) each of them is jointly and severally liable for the keeping,
observing and performing of all of the terms, covenants, conditions, provisions
and agreements of this Lease to be kept, observed and performed by Tenant, and
(ii) the term "Tenant" as used in this Lease means and includes each of them
jointly and severally. The act of or notice from, or notice or refund to, or the
signature of any one or more of them, with respect to the tenancy of this Lease,
including, but not limited to, any renewal, extension, expiration, termination
or modification of this Lease, will be binding upon each and all of the persons
executing this Lease as Tenant with
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the same force and effect as if each and all of them had so acted or so given or
received such notice or refund or so signed.
(b) Tenant as Corporation or Partnership. If Tenant executes this Lease as a
corporation or partnership, then Tenant and the persons executing this Lease on
behalf of Tenant represent and warrant that such entity is duly qualified and in
good standing to do business in California and that the individuals executing
this Lease on Tenant's behalf are duly authorized to execute and deliver this
Lease on its behalf, and in the case of a corporation, in accordance with a duly
adopted resolution of the board of directors of Tenant, a copy of which is to be
delivered to Landlord on execution hereof, if requested by Landlord, and in
accordance with the by-laws of Tenant, and, in the case of a partnership, in
accordance with the partnership agreement and the most current amendments
thereto, if any, copies of which are to be delivered to Landlord on execution
hereof, if requested by Landlord, and that this Lease is binding upon Tenant in
accordance with its terms.
(c) Examination of Lease. Submission of this instrument by Landlord to Tenant
for examination or signature by Tenant does not constitute a reservation of or
option for lease, and it is not effective as a lease or otherwise until
execution by and delivery to both Landlord and Tenant.
IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed by
their duly authorized representatives as of the date first above written.
TENANT: lmmecor Corporation, LANDLORD: Koll/Intereal Say Area, a
a California corporation California general partnership
By: CB Richard Ellis Inc.,
a Delaware corporation,
its managing agent
By: _______________________________ By:_________________________________
Print Name: Heinot H. Hintereder Print Name: Leland A. Wallis
Title: President Title: Director
