\nRent for the period from September 1 to October 1, 1996…………… $2,285.50 $2,265.50 -0-
\nSecurity deposit (not applicable toward last month’s rent)………… -0- -0- -0-
\nOther (Utilities payment for August and September, 1996)………….. $ 700.00 $ 700.00 -0-
\n ——— ——— ——-
\nTOTAL……………………………………………………….. $2,985.50 $2,965.50 -0- <\/p>\n<\/c><\/c><\/c><\/caption>\n<\/table>\n
In the event that this Lease is not accepted by the Lessor within 5 days, the
\ntotal deposit received shall be refunded.<\/p>\n
Lessee offers to lease from Lessor the premises situated in the city of Palo
\nAlto, County of Santa Clara, State of California, described as 451 Sherman
\nAvenue, upon the following TERMS and CONDITIONS:<\/p>\n
1. TERM: The term hereof shall commence on September 1, 1996, and end on
\nAugust 31, 1999.<\/p>\n
1.1 Options to Extend Lease. Lessor shall have one option to extend
\n ———————–
\nthe term of this Lease through a term ending March 31, 2001 and then a second
\noption (if the first option is exercised) for an additional term of 60 months.
\nThe option(s) shall be exercised by giving notice of exercise of each option
\n(“Option Notice”) to Lessor at least six (6) months, but not more than one year,
\nbefore the expiration of the then current term, provided that if Lessee is in
\ndefault beyond any applicable cure period on the date of giving the option
\nnotice, the option notice shall be totally ineffective, or if Lessee is in
\ndefault beyond any applicable cure period on the date the extended term is to
\ncommence, the extended term shall not commence, and, in either case, this Lease
\nshall expire at the end of the initial term unless terminated sooner under the
\nprovisions hereof.<\/p>\n
2. RENT: The total rent shall be $2,285.50, payable as follows: monthly,
\ndue on the first day of each month. All rents shall be paid to Lessor or his\/her
\nauthorized Agent, at the following address: Enterprise Development Co., P.O. Box
\n1785, Burlingame, CA 94011 or at such other places as may be designated by
\nLessor from time to time. In the event rent is not paid within 5 days after due
\ndate, Lessee agrees to pay a late charge of $100, plus interest at the greater
\nof 10% per annum or the maximum rate allowed at law for non-exempt lender
\ncommercial loans on the delinquent amount. Lessee further agrees to pay $50.00
\nfor each dishonored bank check. The late charge period is not a grace period,
\nand Lessor is entitled to make written demand for any rent if not paid when due.<\/p>\n
2.1 Rent Adjustment. The monthly Rent shall be subject to adjustment
\n —————
\non the first day of the month after each one year anniversary of lease
\ncommencement (“adjustment date”), as follows: the base for computing the
\nadjustment is the Consumer Price Index for all <\/p>\n
Urban Consumers (base year 1982-84–100) for San Francisco-Oakland-San Jose. All
\nitems published by the United States Department of Labor, Bureau of Labor
\nStatistics (“Index”), which is most recently published prior to a given
\n“beginning Index” as defined in the Basic Lease Provisions. If the Index most
\nrecently published prior to the adjustment date (“extension Index”) has
\nincreased over the beginning Index, the minimum monthly rent for the following
\nperiod shall be set by multiplying the minimum monthly rent for the immediately
\nprior period by a fraction, the numerator of which is the extension Index, and
\nthe denominator of which is the beginning Index. For each adjustment, the
\nbeginning Index becomes the prior extension Index date after the first
\nadjustment. Such adjustments shall be subject to the minimum percentage increase
\nof 4% per year and the maximum percentage of 6% per year. There is no
\naccumulation if the adjustment is smaller or larger than the minimum or maximum
\npercentage. If the Index is changed so that the base year differs from that used
\nfor the beginning Index, the Index shall be converted in accordance with the
\nconversion factor published by the United States Department of Labor, Bureau of
\nLabor Statistics. If the Index is discontinued or revised during the term, such
\nother government Index or computation with which it is replaced shall be used in
\norder to obtain substantially the same result as would be obtained if the Index
\nhad not been discontinued or revised.<\/p>\n
2.2 Monthly Rent for Extended Terms. For the extended term, Rent
\n ——————————-
\nshall continue with the same Rent charged during the last year of the initial
\nterm plus the CPI adjustment as set forth above for the extended term.<\/p>\n
2.3 Real Property Taxes. Lessor shall pay all real property taxes
\n ——————-
\nand assessments leveled or assessed against the Land and the Building by any
\ngovernmental entity or public authority during the Lease Term.<\/p>\n
3. USE: The premises are to be used for the operation of general office,
\nsales, software R&D and internet services and for no other purposes, without
\nprior written consent of Lessor. Lessee shall not commit any waste upon the
\npremises, or any nuisance or act which may disturb the quiet enjoyment of any
\ntenant in the building.<\/p>\n
4. USES PROHIBITED: Lessee shall not use any portion of the premises for
\npurposes other than those specified. No use shall be made or permitted to be
\nmade upon the premises, nor acts done, which will increase the existing rate of
\ninsurance upon the property, or cause cancellation of insurance policies
\ncovering the property. Lessee shall not conduct or permit any sale by auction
\non the premises.<\/p>\n
4.1 Quiet Enjoyment and Condition of the Premises. As long as Lessee
\n ———————————————
\nis not in default of this Lease beyond any applicable cure period, Lessee shall
\nquietly enjoy the premises without disturbance by Lessor, or by anyone claiming
\na right to possession by or through Lessor, subject to the terms and provisions
\nof this Lease. This is a full service lease to Lessee so that Lessor shall
\ndeliver the premises to Lessee clean and free of debris on the commencement date
\nand warrants to Lessee that the existing plumbing, fire sprinkler system,
\nlighting, air conditioning, heating and carpeting in the Premises shall be in
\ngood operating condition on the commencement date. Furthermore, Lessor shall
\nkeep the premises in good operating condition including adequate restroom
\nfacilities, and adequate air conditioning and heating with thermostats, dampers,
\nand monitors necessary for adequate control and use within <\/p>\n
the premises. Lessor further warrants to Lessee that the premises comply with
\nall applicable building codes, regulations, ordinances, and laws in effect on
\nthe commencement date. This warranty does not apply to any alterations or
\nutility installations made by Lessee. If the premises do not comply with this
\nwarranty, Lessor shall promptly after receipt of written notice from Lessee
\nsetting forth with specificity the nature and extent of such noncompliance,
\nrectify the same at Lessor’s expense.<\/p>\n
5. ASSIGNMENT AND SUBLETTING: Lessee shall not assign this Lease or
\nsublet any portion of the premises without prior written consent of the Lessor,
\nwhich shall not be unreasonably withheld. Any such assignment or subletting
\nwithout consent shall be void and, at the option of the Lessor, shall terminate
\nthis Lease.<\/p>\n
6. ORDINANCES AND STATUTES: Lessee shall comply in its use with all
\nstatutes, ordinances, and requirements of all municipal, state and federal
\nauthorities now in force, or which may later be in force. The commencement or
\npendency of any state or federal court abatement proceeding affecting the use of
\nthe premises shall, at the option of the Lessor, be deemed a breach of this
\nLease.<\/p>\n
7. MAINTENANCE, REPAIRS, ALTERATIONS: Unless otherwise indicated, Lessee
\nacknowledges that the Premises are in good order and repair upon lease
\ncommencement except for any latent defects. Lessor, at its sole cost, shall
\nkeep and maintain in good, safe, water tight, and sanitary order, condition,
\nappearance, and repair the premises. Lessee will be responsible solely for any
\nrepairs or maintenance where it has abused or improperly used the premises
\ncausing the need for such maintenance or repair. Notwithstanding the above, to
\nthe extent an additional damper is needed in the HVAC system for adequate
\ncontrol within the premises is required in what has been referred to as the
\n“founders premises” then that shall be installed at Lessee’s expense.<\/p>\n
No improvements or alteration of the premises that exceeds for non-structural
\nalterations $5,000.00 in cost shall be made without the prior written consent of
\nthe Lessor. Prior to the commencement of any substantial repair, improvement, or
\nalteration, Lessee shall give Lessor at least two (2) days’ written notice in
\norder that Lessor may post appropriate notices to avoid any liability for liens.<\/p>\n
8. ENTRY AND INSPECTION: Lessee shall permit Lessor or Lessor’s agents
\nto enter the premises at reasonable times and upon reasonable notice for the
\npurpose of inspecting the premises, and shall permit Lessor, at any time within
\nsixty (60) days prior to the expiration of this Lease, to place upon the
\npremises any usual “To Let” or “For Lease” signs, and permit persons desiring to
\nlease the premises to inspect the premises at reasonable times.<\/p>\n
9. INDEMNIFICATION OF LESSOR: Lessor shall not be liable for any damage
\nor injury to Lessee, or any other person, or to any property, occurring on the
\npremises unless caused through active negligence or greater culpability of
\nLessor. Lessee agrees to hold Lessor harmless from any claims for damages
\narising out of Lessee’s use of the premises, and to indemnify Lessor for any
\nexpense incurred by Lessor in defending any such claims.<\/p>\n
10. POSSESSION: If Lessor is unable to deliver possession of the premises
\nat the commencement date set forth above, Lessor shall not be liable for any
\ndamage caused by the delay, nor shall this Lease be void or voidable, but Lessee
\nshall not be liable for any rent until possession is delivered. Lessee may
\nterminate this Lease if possession is not delivered within 15 days of the
\ncommencement term in Item 1.<\/p>\n
11. LESSEE’S INSURANCE: Lessee, at his\/her expense, shall maintain plate
\nglass and public liability insurance, including bodily injury and property
\ndamage, insuring Lessee and Lessor with minimum coverage as follows: $2,000,000.
\nLessee shall provide Lessor with a Certificate of Insurance showing Lessor as
\nadditional insured. The policy shall require ten (10) days’ written notice to
\nLessor prior to cancellation or material change of coverage.<\/p>\n
12. LESSOR’S INSURANCE: Lessor shall maintain hazard insurance covering
\none hundred percent (100%) replacement cost of the Improvements throughout the
\nLease term. Lessor’s insurance will not insure Lessee’s personal property or
\nleasehold improvements.<\/p>\n
13. SUBROGATION: To the maximum extent permitted by insurance policies
\nwhich may be owned by the parties, Lessor and Lessee waive any and all rights of
\nsubrogation which might otherwise exist.<\/p>\n
14. UTILITIES: Lessor agrees that he\/she shall be responsible for the
\npayment of all utilities, including water, gas, electricity, heat and other
\nservices delivered to the premises. Utilities, including HVAC shall be provided
\nto the premises twenty-four (24) hours a day seven (7) days a week so that the
\nHVAC properly cools or warms, as the case may be, the premises during any hours
\nthat Lessee chooses to use the premises and to properly maintain and repair the
\nHVAC system and all utilities and plumbing and electrical systems. For this
\nadditional twenty-four (24) use of the HVAC system, Lessee shall have
\nthermostats in the premises and the system will be properly maintained for such
\nfull utilized use at Lessor’s expense. Lessee shall pay as an additional cost or
\nrent under this Lease for this 24 hour use for this premises as well as all
\nother space Lessee is leasing from Lessor, the cost of $350.00 per month payable
\nthe first day of each month commencing August 1, 1996 and through each remaining
\nmonth of the Lease or extended term thereof so long as any space is being leased
\nby Lessee that requires 24 hour HVAC.<\/p>\n
15. SIGNS: Lessor reserves the exclusive right to the roof, side and rear
\nwalls of the premises. Lessee shall not construct any projecting sign or awning
\nwithout the prior written consent of Lessor, which shall not be unreasonably
\nwithheld.<\/p>\n
16. ABANDONMENT OF PREMISES: Lessee shall not abandon the premises at any
\ntime during the term of this Lease. If Lessee does abandon the premises, or is
\ndispossessed by process of law, or otherwise, any personal property belonging to
\nLessee left on the premises shall be deemed to be abandoned, at the option of
\nLessor.<\/p>\n
17. CONDEMNATION: If any part of the premises is condemned for public
\nuse, and a part remains which is susceptible of occupation by Lessee, this Lease
\nshall, as to the part taken, terminate as of the date the condemnor acquires
\npossession. Lessee shall be required to pay such proportion of the rent for the
\nremaining term as the value of the premises remaining bears to the <\/p>\n
total value of the premises at the date of condemnation; provided however, that
\nLessor may at his\/her option, terminate this Lease as of the date the condemnor
\nacquires possession. In the event that the premises are condemned in whole, or
\nthe remainder is not susceptible for use by the Lessee, this Lease shall
\nterminate upon the date which the condemnor acquires possession. All sums which
\nmay be payable on account of any condemnation shall belong solely to the Lessor;
\nexcept that Lessee shall be entitled to retain any amount awarded to him\/her for
\nhis\/her trade fixtures or moving expenses.<\/p>\n
18. TRADE FIXTURES: Any and all improvements made to the premises during
\nthe term shall belong to the Lessor, except trade fixtures of the Lessee. Lessee
\nmay, upon termination, remove all his\/her trade fixtures, but shall pay for all
\ncosts necessary to repair any damage to the premises occasioned by the removal.<\/p>\n
19. DESTRUCTION OF PREMISES: In the event of the destruction of the
\npremises during the term, from any cause, Lessor shall promptly repair the
\npremises, provided that such repairs can be reasonably made within one hundred
\neighty (180) days. Such destruction shall not terminate this Lease, except that
\nLessee shall be entitled to a proportionate reduction of rent while such repairs
\nare being made, based upon the extent to which the making of such repairs
\ninterferes with the business of Lessee on the premises. If the repairs cannot be
\nmade within one hundred eight (180) days, this Lease may be terminated at the
\noption of either party by giving written notice to the other party within the
\none hundred eighty (180) day period. If the destruction is over 80% of the
\nbuilding or Property to which the premises is a part then Lessor may terminate
\nthis Lease at its election.<\/p>\n
20. HAZARDOUS MATERIALS: Lessee shall not use, store, or dispose of any
\nhazardous substances upon the premises, except the use and storage of such
\nsubstances that are customarily used in Lessee’s business, and are in compliance
\nwith all environmental laws. Hazardous substances means any hazardous waste,
\nsubstance or toxic materials regulated under any environmental laws or
\nregulations applicable to the property.<\/p>\n
21. INSOLVENCY: The appointment of a receiver, an assignment for the
\nbenefits of creditors, or the filing of a petition in bankruptcy by or against
\nLessee, shall constitute a breach of this Lease by Lessee.<\/p>\n
22. DEFAULT BY LESSEE: In the event of any material breach of this Lease
\nby Lessee that is not cured within thirty (30) days’ written notice to Lessee,
\nLessor may, at his\/her option, terminate the Lease and recover from Lessee: (a)
\nthe worth at the time of award of the unpaid rent, which had been earned at the
\ntime of termination; (b) the worth at the time of award of the amount by which
\nthe unpaid rent which would have been earned after termination until the time of
\nthe award exceeds the amount of such rental loss that the Lessee proves could
\nhave been reasonably avoided; (c) the worth at the time of award of the amount
\nby which the unpaid rent for the balance of the term after the time of award
\nexceeds the amount of such rental loss that the Lessee proves could be
\nreasonably avoided; and (d) any other amount necessary to compensate Lessor for
\nall the detriment proximately caused by the Lessee’s failure to perform his\/her
\nobligations under the Lease or which in the ordinary course of things would be
\nlikely to result therefrom.<\/p>\n
Lessor may, in the alternative, continue this Lease in effect, as long as Lessor
\ndoes not terminate Lessee’s right to possession, and Lessor may enforce all of
\nLessor’s rights and remedies under the Lease, including the right to recover the
\nrent as it becomes due under the Lease.<\/p>\n
Nothing contained herein shall be deemed to limit any other rights or remedies
\nwhich Lessor may have.<\/p>\n
22.1 DEFAULT BY LESSOR: Lessor shall not be deemed in breach of this
\nLease unless Lessor fails to perform an obligation required of Lessor under this
\nLease within thirty (30) days of written notice from Lessee specifying such
\nobligation not performed and demanding performance; provided, however, that if
\nthe nature of Lessor’s obligation is such that more than thirty (30) days after
\nsuch notice is reasonably required for its performance, the Lessor shall not be
\nin breach of this Lease if performance is commenced within thirty (30) days of
\nsuch notice and diligently pursued to completion.<\/p>\n
23. SECURITY: The security deposit set forth above shall secure the
\nperformance of the Lessee’s obligations. Lessor may, but shall not be obligated
\nto apply all or portions of the deposit on account of Lessee’s obligations. Any
\nbalance remaining upon termination shall be returned to Lessee. Lessee shall not
\nhave the right to apply the security deposit in payment of the last month’s
\nrent.<\/p>\n
24. DEPOSIT REFUNDS: The balance of all deposits shall be refunded within
\nthree weeks (or otherwise required by law), form date possession is delivered to
\nLessor or his\/her authorized Agent, together with a statement showing any
\ncharges made against such deposits by Lessor.<\/p>\n
25. ATTORNEY’S FEE AND COSTS: In any action or proceeding involving a
\ndispute between Lessor and Lessee arising out of this Lease, the prevailing
\nparty shall be entitled to reasonable attorney’s fees.<\/p>\n
26. WAIVER: No failure of either party to enforce any term of this Lease
\nshall be deemed to be a waiver.<\/p>\n
27. NOTICES: Any notice which either party may or is required to give,
\nshall be given by mailing the same, postage prepaid, to Lessee at the premises,
\nor to Lessor at the address shown in Item 2, or at such other places as may be
\ndesignated by the parties from time to time. Notice shall be effective five days
\nafter mailing, or on personal delivery.<\/p>\n
28. HOLDING OVER: Any holding over after the expiration of this Lease,
\nwith the consent of Owner, shall become a month-to-month tenancy at the monthly
\nrent payable in advance and otherwise subject to the terms of this Lease, as
\napplicable, until either party shall terminate the same by giving the other
\nparty thirty (30) days’ written notice.<\/p>\n
29. TIME: Time is of the essence in this Lease.<\/p>\n
30. HEIRS, ASSIGNS, SUCCESSORS: This Lease is binding upon and inures to
\nthe benefit of the heirs, assigns and successors of the parties.<\/p>\n
31. OPTION FOR ADDITIONAL SPACE: Lessor gives Lessee the option to rent
\nany or all of five (5) additional suites in the building for which the premises
\nis a part for the suite numbers and rent as follows: Suite 107, Suite 109, Suite
\n111 for a combined rent of $1,250 per month; Suite 112 – $275.00 per month, and
\nSuite 113 – $370.00 per month. If Lessee exercises this option(s) more than six
\n(6) months after lease commencement date then the rent shall be the then
\nprevailing rental rate charged to the month-to-month tenant. Lessor will make
\neach of these suites available to Lessee upon receipt of thirty (30) days’
\nwritten notice term from Lessee that they are prepared to take down the suite
\nindicated. Rent will be as indicated above and subject the CPI adjustments set
\nforth in this Lease the term shall commence at the beginning of the month
\nfollowing the end of the thirty (30) days’ written notice from Lessee to Lessor
\nexercising this option as to the suite or suites to be taken and will end at the
\nend of the term of this Lease subject to the extensions granted in this Lease.
\nThe leasing of this additional space shall cause the space to become part of the
\npremises under this Lease subject to all the terms and conditions of this Lease
\nexcept as modified in this paragraph. Lessee shall have five (5) business days
\nto exercise this right starting when Lessee is provided the offered rental rate.
\nSuch rental shall be for the remaining term of this Lease with the same
\nextension rights. If Lessee rejects the rental rate offered then Lessor may
\nlease the space to anyone else for the same rate or higher.<\/p>\n
32. EARLY TERMINATION: Lessee shall have the right to terminate this
\nLease and the obligations thereunder before the end of the Lease term as set
\nforth in Paragraph 1 above, as to any or all of the suites leased by Lessee from
\nLessor in the Building, on the following conditions: (1) Lessee gives Lessor at
\nleast ninety (90) days prior written notice of this exercise of right to
\nterminate setting forth the space (suite(s)) being terminated and the date of
\ntermination (“Early Termination Date”) which shall be the last day of a month;
\n(b) the Early Termination Date is at least eighteen (18) months after the
\ncommencement date of the Lease; (c) payment to Lessor on or before the Early
\nTermination Date an amount equal to five (5) months’ rent at the then rental
\nrate being paid for the space for which the Lease is being terminated pursuant
\nto this paragraph; (d) payment to Lessor of all rents due up to the Early
\nTermination Date; and (e) as to the space (suite) in the Lease for 453 Sherman
\nAvenue commencing December 15, 1995 (“initial space”); the payment to Lessor on
\nor before the Early Termination Date of an amount equal to the number of months
\nrent or fraction thereof for rental of the initial space calculated by
\nmultiplying the number of months left in the initial term for the initial space
\nby .1167.<\/p>\n
33. LESSOR’S LIABILITY: In the event of a transfer of Lessor’s title or
\ninterest to the property during the term of this Lease, Lessee agrees that the
\ngrantee of such title or interest shall be substituted as the Lessor under this
\nLease, and the original Lessor shall be released of all further liability;
\nprovided, that all deposits shall be transferred to the grantee.<\/p>\n
34. ESTOPPEL CERTIFICATE:<\/p>\n
(a) On ten (10) days’ prior written notice from Lessor, Lessee shall
\nexecute, acknowledge, and deliver to Lessor a statement in writing: (1)
\ncertifying that this Lease is unmodified and in full force and effect (or, if
\nmodified, stating the nature of such modification and certifying that this
\nLease, as so modified, is in full force and effect), the amount of any security
\ndeposit, and the date to which the rent and other charged are paid in advance,
\nif any; and (2) acknowledging that there are not, to Lessee’s knowledge, any
\nuncured defaults on the part of <\/p>\n
Lessor, or specifying such defaults if any are claimed. Any such statement may
\nbe conclusively relied upon by any prospective buyer or encumbrancer of the
\npremises.<\/p>\n
(b) At Lessor’s option, Lessee’s failure to deliver such statement
\nwithin such time shall be a material breach of this Lease or shall be conclusive
\nupon Lessee: (1) that this Lease is in full force and effect, without
\nmodification except as may be represented by Lessor; (2) that there are no
\nuncured defaults in Lessor’s performance; and (3) that not more than one month’s
\nrent has been paid in advance.<\/p>\n
(c) If Lessor desires to finance, refinance, or sell the premises, or
\nany part thereof, Lessee agrees to deliver to any lender or buyer designated by
\nLessor such financial statements of Lessee as may be reasonably required by such
\nlender or buyer. All financial statements shall be received by the Lessor or the
\nlender or buyer in confidence and shall be used only for the purposes set forth.<\/p>\n
35. ENTIRE AGREEMENT: The foregoing constitutes the entire Agreement
\nbetween the parties and may be modified only in writing signed by all parties.
\nThe following exhibits are a part of this Lease:<\/p>\n
The undersigned Lessee hereby acknowledges that he\/she has thoroughly read and
\napproved each of the provisions contained in this Offer, and agrees to the terms
\nand conditions specified.<\/p>\n
Lessee: ______________ Date: 9\/9\/96 Lessee: ________________ Date:________
\n —— <\/p>\n
Chief Financial Officer, Internet Travel Network, Inc.<\/p>\n
Receipt for deposit acknowledged by: ___________________________________________<\/p>\n
ACCEPTANCE<\/p>\n
The undersigned Lessor accepts the foregoing Offer and agrees to lease the
\npremises on the terms and conditions set forth above.<\/p>\n
Lessor: ______________ Date: 9\/4\/96 Lessor: ________________ Date:________
\n —— <\/p>\n
Lessee acknowledges receipt of a copy of the accepted Agreements.<\/p>\n
Lessee: ______________ Date: 9\/4\/96 Lessee: ________________ Date:________
\n —— <\/p>\n
Chief Financial Officer, Internet Travel Network, Inc.<\/p>\n
The Master Lease monthly rent is increased by $1,875 per month, the total rent
\nbeing equal to $8,432.50 per month. The new lease, which includes the Master
\nLease and this addendum will have the same duration, options, and yearly
\nincreases and dates of increase as the Master Lease.<\/p>\n
The Lessee will lease the space as is. The Lessor must approve in writing all
\nproposed changes, if any, but will not withhold consent unreasonably. The
\nLessee will pay for all required and approved changes.<\/p>\n
Suites may become available at different times but, in any case, not later than
\ntwo months following acceptance of this addendum. The Lessee will start to pay
\nadditional rent incrementally as soon as each individual suite will become
\navailable for occupancy or for construction, as required.<\/p>\n
All other terms of the Master Lease will remain in effect.<\/p>\n
Pio de Feo
\nManaging Partner
\nEnterprise Development Company<\/p>\n
ENTERPRISE DEVELOPMENT COMPANY
\n P.O. Box 1785
\n Burlingame, CA 94011-1785
\n Telephone & Fax: (650) 343-2492<\/p>\n
July 9, 1996<\/p>\n
Internet Travel Network
\nMr. Michael Schradle, CFO
\n453 Sherman Avenue
\nPalo Alto, CA 94306<\/p>\n
Dear Mr. M. Schradle;<\/p>\n
The simplest way to add additional office space to that included in your
\nexisting Lease Contract dated November 16, 1995 (Master Lease), is to add the
\nfollowing addendum to that lease.<\/p>\n
ADDENDUM A<\/p>\n
The Master Lease is modified to add 5 individual suites to the currently leased
\nspace. The suites are:<\/p>\n
1) 451\/107, 451\/109, 451\/111 which are collectively leased for $1,250.00
\n per month;<\/p>\n
2) 451\/112, which is leased for $275.00 per month; and<\/p>\n
3) 451\/113, which is leased for $350.00 per month.<\/p>\n
ASSIGNMENT OF LEASE<\/p>\n
This Assignment of Lease (“Assignment”) is entered into this _____ day
\nof September, 1996, by and between James M. Conte and Internet Travel Network.<\/p>\n
ARTICLE 1 – DEFINITIONS<\/p>\n
1.1 As used herein the term “ASSIGNOR” shall refer to James M.
\nLoConte.<\/p>\n
1.2 As used herein the term “ASSIGNEE” shall refer to Internet Travel
\nNetwork.<\/p>\n
1.3 As used herein the term “LESSOR” shall refer to Pio de Feo.<\/p>\n
1.4 As used herein the term “PREMISES” shall refer to certain office
\nspace located at 451 Sherman Avenue, Suite 100, Palo Alto, Santa Clara County,
\nCalifornia, as modified between ASSIGNOR and LESSOR effective January 1, 1995,
\nand consisting of approximately 861 square feet.<\/p>\n
1.5 As used herein the term “MASTER LEASE” shall refer to the
\nStandard Office Lease and Addendum and any and all Exhibits and Attachments
\nthereto between Pio de Feo as lessor and Dr. Alan A. Silverberg, D.C., Inc., as
\nlessee, on or about January 6, 1992.<\/p>\n
1.6 As used herein the term “LoCONTE ASSIGNMENT” shall refer to the
\nAssignment and Assumption of Lessor’s Interest in Lease between Alan A.
\nSilverberg as assignor, Pio de Feo as lessor, and James LoConte as assignee and
\nJoseph LoConte as guarantor, dated October 28, 1994.<\/p>\n
ARTICLE 2 – TERM<\/p>\n
2.1 Commencement Date. The term of this ASSIGNMENT shall be for the
\n —————–
\nremaining term of the MASTER LEASE, including any such option period extending
\nthe term to February 28, 2002, which may be exercised by ASSIGNEE hereunder, and
\nshall commence on October 1, 1996, (the “Commencement Date”).<\/p>\n
This ASSIGNMENT goes into effect as of the Commencement Date and all
\nduties arising hereunder shall be transferred to ASSIGNEE as of the Commencement
\nDate and all duties arising hereunder shall be transferred to ASSIGNEE as of the
\nCommencement Date regardless of when actual occupation of the PREMISES by
\nASSIGNEE begins.<\/p>\n
2.2 Option to Extend Term. ASSIGNOR and ASSIGNEE hereby agree that
\n ———————
\nparagraph 39 of the MASTER LEASE shall be non-operative and that the exercise of
\nthe option to extend the lease term of the PREMISES by ASSIGNEE shall not void
\nASSIGNEE’s obligations arising hereunder.<\/p>\n
ARTICLE 3 – OBLIGATIONS OF PARTIES<\/p>\n
3.1 LESSOR’s Obligations. LESSOR’s obligations shall not be changed,
\n ——————–
\nmodified, extended, extinguished or harmed by this ASSIGNMENT. LESSOR shall
\ncontinue to exercise duties and rights over the PREMISES in accordance with the
\nterms of the MASTER LEASE.<\/p>\n
3.2 ASSIGNEE’s Obligations. ASSIGNEE assumes all obligations of
\n ———————-
\nASSIGNOR arising under the MASTER LEASE and LoCONTE ASSIGNMENT and will be
\nsolely liable for the payment of rent and improvements and the performance of
\nthe terms and conditions of the MASTER LEASE, subject to any modifications by
\nthe LoCONTE ASSIGNMENT.<\/p>\n
ASSIGNEE shall not commit or permit to be committed any act or
\nomission which would violate any term or provision of the MASTER LEASE.
\nASSIGNEE shall neither do nor permit anything to be done which would cause the
\nMASTER LEASE to be terminated or forfeited by reason of any right of termination
\nor forfeiture reserved or vested in LESSOR under the MASTER LEASE, and ASSIGNEE
\nshall indemnify and hold ASSIGNOR harmless from and against any and all
\nliability, judgments, costs, demands, claims, and damages of any kind whatsoever
\n(including, without limitation, attorneys’ fees and court costs) to the extent
\nany act or omission by ASSIGNEE results in a violation of any term or provision
\nof the MASTER LEASE. Neither early termination of the term of this ASSIGNMENT
\nnor abandonment of the PREMISES by ASSIGNEE shall relieve or release ASSIGNEE of
\nany of the obligations transferred to it by this ASSIGNMENT.<\/p>\n
ASSIGNEE hereby represents and warrants to ASSIGNOR that it has read
\nand is familiar with the MASTER LEASE and accepts all terms of the MASTER LEASE,
\nsubject to any modifications of it by the LoCONTE ASSIGNMENT, and agrees to be
\nbound thereby.<\/p>\n
3.3 ASSIGNOR’s Obligations. This ASSIGNMENT transfers ASSIGNOR’s
\n ———————-
\nentire interest in the PREMISES. ASSIGNOR maintains no interest of any kind
\nwhatsoever, reversionary or present possessory, in the PREMISES.<\/p>\n
Assignor shall have no liability to ASSIGNEE or any other person for
\ndamage of any nature whatsoever as a result of the failure of LESSOR to perform
\nits obligations under the MASTER LEASE of LoCONTE ASSIGNMENT. ASSIGNOR
\nrepresents that it is not in breach of the MASTER LEASE or LoCONTE ASSIGNMENT
\nand is current in payment of all sums due under the MASTER LEASE and LoCONTE
\nASSIGNMENT and shall indemnify and hold harmless ASSIGNEE from any obligations
\naccruing prior to the Commencement Date herein.<\/p>\n
Upon expiration of the term of this ASSIGNMENT, all duties of the
\nASSIGNOR now owing to the LESSOR shall expire.<\/p>\n
ARTICLE 4 – RENT<\/p>\n
4.1 Monthly Rent. ASSIGNEE shall timely pay monthly rent in the
\n ————
\namount of the $1,762.76 on or before the 1st day of each and every month without
\nprior notice or demand <\/p>\n
and without any deduction, offset, or abatement, in lawful money of the United
\nStates, to LESSOR at the address set forth in the ASSIGNMENT.<\/p>\n
If the term of this ASSIGNMENT shall begin on a date other than the
\nfirst of the month, ASSIGNEE agrees to pay that portion the monthly rent accrued
\non the PREMISES from the Commencement Date to the first of the next month.<\/p>\n
All rent increases incurred on the PREMISES pursuant to the schedule
\nfor increases stated in the MASTER LEASE or LoCONTE ASSIGNMENT shall be assumed
\nby ASSIGNEE.<\/p>\n
ASSIGNEE’s covenant to pay rent under this ASSIGNMENT shall continue
\nuntil the term of the MASTER LEASE, including any exercised extension periods,
\nhas expired, whether or not ASSIGNEE vacates or abandons the premises or
\nterminates the ASSIGNMENT, unless ASSIGNEE and ASSIGNOR agree in writing that
\nASSIGNOR will resume responsibility for payment of rents to LESSOR.<\/p>\n
4.2 Additional Rent. To the extent of any additional rent owed under
\n —————
\nthe MASTER LEASE or LoCONTE ASSIGNMENT, ASSIGNEE shall pay all such amounts to
\nLESSOR.<\/p>\n
4.3 Late Charge and Interest. Any and all late charges or interest
\n ————————
\nincurred under that MASTER LEASE or LoCONTE ASSIGNMENT shall be paid by ASSIGNEE
\nto LESSOR.<\/p>\n
4.4 Tenant Improvement Loan. ASSIGNEE agrees that it shall assume
\n ———————–
\nrepayment of the tenant improvement loan referred to in Addendum paragraph 51 of
\nthe MASTER LEASE, pursuant to the repayment-amortization schedule dated April 7,
\n1992. ASSIGNEE agrees that it shall be solely responsible for repayment of the
\ntenant improvement loan to the extent of the repayment-amortization schedule
\nthrough the end of the MASTER LEASE term. ASSIGNEE further covenants that if the
\noption to extend the term of this ASSIGNMENT is exercised by ASSIGNEE or for
\nASSIGNEE’s benefit, it shall continue to repay the tenant improvement loan
\npursuant to the repayment-amortization schedule referred to herein until said
\nloan is repaid in full. ASSIGNEE’s exercise of the option to extend the term of
\nthe lease of the PREMISES constitutes an assumption of the tenant improvement
\nloan and ASSIGNEE shall indemnify and hold harmless ASSIGNOR against any and all
\nrequests, claims or demands for payment from LESSOR or anyone acting on LESSOR’s
\nbehalf, including LESSOR’s creditors. Upon completion of repayment of the loan
\neither pursuant to the repayment-amortization schedule or earlier repayment of
\nthe loan, ASSIGNEE shall obtain and secure from LESSOR a complete release of
\nASSIGNOR from any and all claims arising or which may arise against ASSIGNOR or
\nin favor of LESSOR under the tenant improvement loan and repayment-amortization
\nschedule.<\/p>\n
ASSIGNOR hereby agrees that if the option to extend the term of this
\nASSIGNMENT is not exercised by ASSIGNEE or for ASSIGNEE’s benefit, ASSIGNOR
\nshall, upon termination of this ASSIGNMENT and the lease, promptly repay to
\nLESSOR the balance remaining due on the tenant improvement loan after ASSIGNEE
\nfulfills its obligations under the <\/p>\n
loan repayment-amortization schedule, without abatement, reimbursement, or
\ncontribution from ASSIGNEE.<\/p>\n
ARTICLE 5 – SECURITY DEPOSIT<\/p>\n
Upon execution hereof, ASSIGNOR hereby assigns to ASSIGNEE his rights
\nto the security deposit under the MASTER LEASE in the sum of $1,925.00.<\/p>\n
ASSIGNEE shall pay to ASSIGNOR the sum of $1,925.00 within ten (10)
\nbusiness days of the date of this ASSIGNMENT as consideration for ASSIGNOR’s
\ntransfer of rights to his security deposit under the MASTER LEASE.<\/p>\n
ARTICLE 6 – USE OF PREMISES<\/p>\n
ASSIGNEE shall only make lawful use of the PREMISES of a quality
\nreasonably comparable to that use by ASSIGNOR or consistent with the general
\ncharacter of the premises generally, and such use of the PREMISES shall be in
\naccordance with the provisions of the MASTER LEASE regarding use of the premises
\n(paras. 1.4, 6.1).<\/p>\n
ARTICLE 7 – CONDITION OF THE PREMISES<\/p>\n
ASSIGNEE takes the PREMISES subject to all the rights of the LESSOR
\nreserved in the PREMISES, including liens and other priority rights, and subject
\nto all obligations imposed by the MASTER LEASE and in the condition as stated
\nbelow.<\/p>\n
ASSIGNEE acknowledges that as of the Commencement Date the PREMISES
\nand every part thereof, are in good condition and without need of repair.
\nASSIGNEE accepts the PREMISES “as is”, ASSIGNEE having made all investigations
\nand tests it deems necessary to establish to its own satisfaction the condition
\nof the PREMISES.<\/p>\n
ASSIGNEE accepts the PREMISES subject to all applicable zoning,
\nmunicipal, county and state laws, ordinances, and regulations governing and
\nregulating the use of the PREMISES and any covenants or restrictions of record.
\nASSIGNEE acknowledges that neither ASSIGNOR nor LESSOR have made any
\nrepresentations or warranties as to the condition of the PREMISES or its present
\nor future suitability for ASSIGNEE’s purposes.<\/p>\n
ARTICLE 8 – NOTICES<\/p>\n
8.1 Manner of Service. Any notice, demand, request, consent,
\n —————–
\napproval, submittal, or communication that any party desires or is required to
\ngive to the other party or any other person shall be in writing and either
\nserved personally or sent by prepaid, first-class, certified mail to the address
\nset forth in Section 8.3, or by facsimile transmission at the phone number set
\nforth in Section 8.3.<\/p>\n
8.2 Change of Address. Any party may change its address or facsimile
\n —————–
\nphone number by promptly notifying the other party of the change of address or
\nphone number in writing. Such written notice of a change of address shall be
\nmade within five (5) business days of the effective date of said change of
\naddress. In the event the notice of change of address is <\/p>\n
delivered to the facsimile telephone number of the other parties, such address
\nchange is deemed effective and received upon receipt of the sender of a
\ntransmission report verifying that the facsimile transmission was sent. In the
\nevent notice of change of address is delivered through the U.S. mails, it shall
\nbe sent by first class mail and shall be deemed effective and received three
\ndays after mailing such notice.<\/p>\n
In the event that any party fails to notify said other parties of a
\nchange of address as stated above, said party shall be liable for costs incurred
\nby any other party who must employ outside services to locate said party. This
\nprovision shall not allow any party to such locator collect fees against LESSOR.<\/p>\n
8.3 Addresses.
\n ———<\/p>\n
ASSIGNOR ASSIGNEE
\n Dr. James M. LoConte, D.C. Internet Travel Network
\n 124 University Avenue Suite 201 453 Sherman Avenue
\n Palo Alto, California 94301 Palo Alto, California 94306
\n Attention: Michael Schradle
\n Fax to: (415) 326-1164 Fax to: (415) 614-6390<\/p>\n
ASSIGNOR’S GUARANTOR LESSOR
\n Mr. Joseph LoConte Pio de Feo
\n 28140 Story Hill Lane ____________________________
\n Los Altos Hills, CA 94022 ____________________________
\n ____________________________
\n Fax to:_____________________<\/p>\n
ARTICLE 9 – DISPUTES, ATTORNEYS’ FEES<\/p>\n
9.1 Agreement to Arbitrate Dispute. All disputes between ASSIGNOR
\n ——————————
\nand ASSIGNEE arising under this ASSIGNMENT shall be submitted by the parties to
\nbinding arbitration.<\/p>\n
9.2 Attorneys’ Fees. The prevailing party (by arbitration award or
\n —————
\nsettlement) shall be entitled to recover as part of such proceeding its
\nreasonable attorneys’ fees and costs incurred in pursuing such arbitration and
\njudicially enforcing such arbitration award.<\/p>\n
ARTICLE 10 – NOR RIGHT TO AMEND, ASSIGN OR SUBLEASE<\/p>\n
ASSIGNEE shall not have a right to amend, assign or sublease the
\nPREMISES without ASSIGNOR’s consent, which ASSIGNOR in its sole discretion may
\ndeny unless ASSIGNOR is released by LESSOR from any liability or obligation
\nunder the MASTER LEASE and LoCONTE ASSIGNMENT. Any such amendment, assignment
\nor sublease shall be deemed a termination of this ASSIGNMENT and ASSIGNOR’s
\nliabilities and obligations under the MASTER LEASE and LoCONTE ASSIGNMENT.<\/p>\n
Any such unapproved amendment, assignment or sublease shall not
\nrelieve ASSIGNEE of liability for rents, improvement costs, loan repayment
\nobligation, expenses, <\/p>\n
additional costs or fees under the MASTER LEASE or LoCONTE ASSIGNMENT
\ntransferred pursuant to this ASSIGNMENT.<\/p>\n
ARTICLE 11 – MISCELLANEOUS<\/p>\n
11.1 Entire Agreement. This ASSIGNMENT, Exhibits and Attachments
\n —————-
\nhereto constitute the entire agreement between the parties with respect to the
\nmatters described or referred to herein. ASSIGNOR has made no representations or
\nwarranties to ASSIGNEE except as expressly set forth herein. This ASSIGNMENT may
\nonly be amended pursuant to the terms of the MASTER LEASE.<\/p>\n
The following documents are incorporated by reference herein and
\nattached as exhibits:<\/p>\n
EXHIBIT 1 MASTER LEASE
\n EXHIBIT 2 LOCONTE ASSIGNMENT
\n EXHIBIT 3 TENANT IMPROVEMENT LOAN
\n AMORTIZATION SCHEDULE DATED
\n APRIL 7, 1992<\/p>\n
11.2 Counterparts. This ASSIGNMENT may be executed in two or more
\n ————
\nidentical counterparts, each of which shall be deemed an original, but all of
\nwhich together shall constitute one and the same instrument.<\/p>\n
11.3 Facsimile As Original. A facsimile copy of this ASSIGNMENT may
\n ———————
\nbe executed as an original.<\/p>\n
11.4 LESSOR Consent. This ASSIGNMENT is conditioned on acceptance
\n ————–
\nand consent by LESSOR as to the ASSIGNMENT and all the terms and conditions
\nstated herein.<\/p>\n
11.5 Due Authority. Each party represents and warrants that the
\n ————-
\nperson(s) signing on its behalf have the authority to bind it to this ASSIGNMENT<\/p>\n
Executed as of the date first set forth above. <\/p>\n
ASSIGNOR ASSIGNEE<\/p>\n
________________________________________ INTERNET TRAVEL NETWORK
\nJames M. LoConte, D.C.<\/p>\n
________________________________________ By:_______________________________
\nJoseph LoConte, Cosigner
\n Its:______________________________<\/p>\n
CONSENT TO ASSIGNMENT<\/p>\n
The undersigned LESSOR hereby agrees to and accepts the above
\nAssignment of Lease and the terms thereof including the Option to Extend, with
\nthe understanding and condition that the Assignment of Lease does not release
\nASSIGNOR from the contracted obligations under the MASTER LEASE and LoCONTE
\nASSIGNMENT during the initial term of the MASTER LEASE should the ASSIGNEE fail
\nto perform any obligations of the MASTER LEASE and LoCONTE ASSIGNMENT.<\/p>\n
Date: 9\/30\/96 LESSOR:
\n ——————————— <\/p>\n
__________________________________
\n Pio de Feo<\/p>\n
February 4, 1996<\/p>\n
Dr. J. LoConte
\nCalifornia Avenue Chiropractic
\n451 Sherman Avenue, Suite #100
\nPalo Alto, CA 94306<\/p>\n
Re: Rent escalation<\/p>\n
Dear Dr. LoConte:<\/p>\n
Pursuant to the terms of the Addendum to you lease Assignment, the
\nreferenced Master Lease dated January 6, 1992, and the letter dated Sep. 27,
\n1995, your monthly rent is scheduled to increase effective March 1, 1996. This
\nincrease is computed in accordance with the Consumer Price Index (CPI) and is
\nlimited to a minimum of 4% and a maximum of 8%. Because the CPI increase during
\nthe last year has been less than 4%, your monthly rent increase will be based on
\nthe minimum of 4%. As such, starting with the month of December 1994, and each
\nmonth thereafter until changed in accordance with the terms of your lease, your
\nbasic rent shall be $1,694.96 * 1.04 = $1,762.76 reflecting that increase. Your
\ntotal monthly payment, including the loan payment schedule of $130.04, shall be:
\n$1,762.76 + $130.04 = $1,892.80.<\/p>\n
If you have any questions regarding this information, please contact
\nour offices.<\/p>\n
Sincerely,<\/p>\n
Pio de Feo
\n Managing Partner<\/p>\n
ASSIGNMENT AND ASSUMPTION OF LESSOR’S INTEREST IN LEASE<\/p>\n
1. Dr. Alan A. Silverberg, D.C., Inc. (“Assignor”) does hereby assign and
\n transfer to James M. LoConte (“Assignee”) for valuable consideration, the
\n receipt and sufficiency of which is acknowledged, all of Assignor rights
\n under that certain Lease (the “Master Lease”) dated Jan. 6, 1992 by and
\n between Pio de Feo as Lessor (and Landlord), and Dr. Alan Silverberg, D.C.,
\n Inc. as Lessee, concerning the real property commonly known as 451 Sherman
\n Avenue, Suite 100, Palo Alto, California (the “Premises”).<\/p>\n
2. Assignee hereby accepts the foregoing assignment and assumes and agrees to
\n fully observe and perform all obligations of the Assignor under the Master
\n Lease. Including among these obligations accepted by the Assignee are the
\n Assignor obligations relative to the personal loan granted by Pio de Feo to
\n the Assignor according to all terms of the loan as described in Tenant
\n Improvement Loan document dated April 7, 1992 and signed by the Assignor,
\n by Pio de Feo and by Herman Harrow. The balance of this loan, prior to the
\n Oct. 1, 1994 payment, is $9,599.23 and the fixed monthly payment is $130.04
\n which includes Principal and Interest payments.<\/p>\n
3. Mr. Joseph LoConte, father of the Assignee, is a Cosigner for all
\n obligations of the Assignee under the terms of this Assignment contract.
\n The Cosigner promises to personally perform all obligations of the
\n Assignee, should the Assignee fail to do so, including paying the monthly
\n rent according to the lease schedule in the Master Lease and paying the
\n loan installments according to the terms of Tenant Improvement loan of Par.
\n 3.<\/p>\n
4. Assignor does assign to the Assignee the security deposit under said
\n Lease in the sum of $1,925.00.<\/p>\n
5. Assignor and Assignee agree that this assignment is subject to the terms
\n and conditions of Landlord’s consent to Assignment set forth in the next
\n page.<\/p>\n
LANDLORD’S CONSENT TO ASSIGNMENT<\/p>\n
1. Landlord’s consent to Assignment (Consent) is made and given this Oct. 28
\n day of 1994 by Pio de Feo (Lessor and Landlord’s) under the Lease described
\n in the foregoing assignment, subject to the terms and conditions stated in
\n this Consent<\/p>\n
2. Reservation of Landlord’s rights. Landlord consent to the Assignment
\n ——————————–
\n is given pursuant to the Master Lease. The landlord specifically reserves
\n all of Landlord’s rights and privileges under the Master Lease. It is
\n expressly understood that nothing in this consent shall be construed to
\n modify the Master Lease or to waive any of Landlord’s rights and privileges
\n thereunder.<\/p>\n
THE EFFECTIVE DATE OF THIS ASSIGNMENT IS JAN. 1, 1995.<\/p>\n
Dated Oct. 28, 1994<\/p>\n
ASSIGNOR: (Print) A. Silverberg (Sign)
\n ———————– —————————–<\/p>\n
ASSIGNEE: (Print) James LoConte (Sign)
\n ———————– —————————–<\/p>\n
ASSIGNEE CO-SIGNER: (Print) Joseph LoConte (Sign)
\n ———————– —————————–<\/p>\n
LESSOR\/LANDLORD: (Print) Pio de Feo (Sign)
\n ———————– —————————–<\/p>\n
ASSIGNMENT OF LEASE<\/p>\n
This Assignment of Lease (“Assignment”) is entered into this _____ day
\nof September, 1996, by and between James M. LoConte and Internet Travel Network.<\/p>\n
ARTICLE 1 – DEFINITIONS<\/p>\n
1.1 As used herein the term “ASSIGNOR” shall refer to James M.
\nLoConte.<\/p>\n
1.2 As used herein the term “ASSIGNEE” shall refer to Internet Travel
\nNetwork.<\/p>\n
1.3 As used herein the term “LESSOR” shall refer to Pio de Feo.<\/p>\n
1.4 As used herein the term “PREMISES” shall refer to certain office
\nspace located at 451 Sherman Avenue, Suite 100, Palo Alto, Santa Clara County,
\nCalifornia, as modified between ASSIGNOR and LESSOR effective January 1, 1995,
\nand consisting of approximately 861 square feet.<\/p>\n
1.5 As used herein the term “MASTER LEASE” shall refer to the
\nStandard Office Lease and Addendum and any and all Exhibits and Attachments
\nthereto between Pio de Feo as lessor and Dr. Alan A. Silverberg, D.C., Inc., as
\nlessee, on or about January 6, 1992.<\/p>\n
1.6 As used herein the term “LoCONTE ASSIGNMENT” shall refer to the
\nAssignment and Assumption of Lessor’s Interest in Lease between Alan A.
\nSilverberg as assignor, Pio de Feo as lessor, and James LoConte as assignee and
\nJoseph LoConte as guarantor, dated October 28, 1994.<\/p>\n
ARTICLE 2 – TERM<\/p>\n
2.1 Commencement Date. The term of this ASSIGNMENT shall be for the
\n —————–
\nremaining term of the MASTER LEASE, including any such option period extending
\nthe term to February 28, 2002, which may be exercised by ASSIGNEE hereunder, and
\nshall commence on October 1, 1996, (the “Commencement Date”).<\/p>\n
This ASSIGNMENT goes into effect as of the Commencement Date and all
\nduties arising hereunder shall be transferred to ASSIGNEE as of the Commencement
\nDate and all duties arising hereunder shall be transferred to ASSIGNEE as of the
\nCommencement Date regardless of when actual occupation of the PREMISES by
\nASSIGNEE begins.<\/p>\n
2.2 Option to Extend Term. ASSIGNOR and ASSIGNEE hereby agree that
\n ———————
\nparagraph 39 of the MASTER LEASE shall be non-operative and that the exercise of
\nthe option to extend the lease term of the PREMISES by ASSIGNEE shall not void
\nASSIGNEE’s obligations arising hereunder.<\/p>\n
ARTICLE 3 – OBLIGATIONS OF PARTIES<\/p>\n
3.1 LESSOR’s Obligations. LESSOR’s obligations shall not be changed,
\n ——————–
\nmodified, extended, extinguished or harmed by this ASSIGNMENT. LESSOR shall
\ncontinue to exercise duties and rights over the PREMISES in accordance with the
\nterms of the MASTER LEASE.<\/p>\n
3.2 ASSIGNEE’s Obligations. ASSIGNEE assumes all obligations of
\n ———————-
\nASSIGNOR arising under the MASTER LEASE and LoCONTE ASSIGNMENT and will be
\nsolely liable for the payment of rent and improvements and the performance of
\nthe terms and conditions of<\/p>\n
1<\/p>\n
the MASTER LEASE, subject to any modifications by the LoCONTE ASSIGNMENT.<\/p>\n
ASSIGNEE shall not commit or permit to be committed any act or
\nomission which would violate any term or provision of the MASTER LEASE.
\nASSIGNEE shall neither do nor permit anything to be done which would cause the
\nMASTER LEASE to be terminated or forfeited by reason of any right of termination
\nor forfeiture reserved or vested in LESSOR under the MASTER LEASE, and ASSIGNEE
\nshall indemnify and hold ASSIGNOR harmless from and against any and all
\nliability, judgments, costs, demands, claims, and damages of any kind whatsoever
\n(including, without limitation, attorneys’ fees and court costs) to the extent
\nany act or omission by ASSIGNEE results in a violation of any term or provision
\nof the MASTER LEASE. Neither early termination of the term of this ASSIGNMENT
\nnor abandonment of the PREMISES by ASSIGNEE shall relieve or release ASSIGNEE of
\nany of the obligations transferred to it by this ASSIGNMENT.<\/p>\n
ASSIGNEE hereby represents and warrants to ASSIGNOR that it has read
\nand is familiar with the MASTER LEASE and accepts all terms of the MASTER LEASE,
\nsubject to any modifications of it by the LoCONTE ASSIGNMENT, and agrees to be
\nbound thereby.<\/p>\n
3.3 ASSIGNOR’s Obligations. This ASSIGNMENT transfers ASSIGNOR’s
\n ———————-
\nentire interest in the PREMISES. ASSIGNOR maintains no interest of any kind
\nwhatsoever, reversionary or present possessory, in the PREMISES.<\/p>\n
Assignor shall have no liability to ASSIGNEE or any other person for
\ndamage of any nature whatsoever as a result of the failure of LESSOR to perform
\nits obligations under the MASTER LEASE of LoCONTE ASSIGNMENT. ASSIGNOR
\nrepresents that it is not in breach of the MASTER LEASE or LoCONTE ASSIGNMENT
\nand is current in payment of all sums due under the MASTER LEASE and LoCONTE
\nASSIGNMENT and shall indemnify and hold harmless ASSIGNEE from any obligations
\naccruing prior to the Commencement Date herein.<\/p>\n
Upon expiration of the term of this ASSIGNMENT, all duties of the
\nASSIGNOR now owing to the LESSOR shall expire.<\/p>\n
ARTICLE 4 – RENT<\/p>\n
4.1 Monthly Rent. ASSIGNEE shall timely pay monthly rent in the
\n ————
\namount of the $1,762.76 on or before the 1st day of each and every month without
\nprior notice or demand and without any deduction, offset, or abatement, in
\nlawful money of the United States, to LESSOR at the address set forth in the
\nASSIGNMENT.<\/p>\n
If the term of this ASSIGNMENT shall begin on a date other than the
\nfirst of the month, ASSIGNEE agrees to pay that portion the monthly rent accrued
\non the PREMISES from the Commencement Date to the first of the next month.<\/p>\n
All rent increases incurred on the PREMISES pursuant to the schedule
\nfor increases stated in the MASTER LEASE or LoCONTE ASSIGNMENT shall be assumed
\nby ASSIGNEE.<\/p>\n
ASSIGNEE’s covenant to pay rent under this ASSIGNMENT shall continue
\nuntil the term of the MASTER LEASE, including any exercised extension periods,
\nhas expired, whether or not ASSIGNEE vacates or abandons the premises or
\nterminates the ASSIGNMENT, unless ASSIGNEE and ASSIGNOR agree in writing that
\nASSIGNOR will resume responsibility for payment of rents to LESSOR.<\/p>\n
4.2 Additional Rent. To the extent of any additional rent owed under
\nthe MASTER LEASE or LoCONTE ASSIGNMENT, ASSIGNEE shall pay all such amounts to
\nLESSOR.<\/p>\n
2<\/p>\n
4.3 Late Charge and Interest. Any and all late charges or interest
\n ————————
\nincurred under that MASTER LEASE or LoCONTE ASSIGNMENT shall be paid by ASSIGNEE
\nto LESSOR.<\/p>\n
4.4 Tenant Improvement Loan. ASSIGNEE agrees that it shall assume
\n ———————–
\nrepayment of the tenant improvement loan referred to in Addendum paragraph 51 of
\nthe MASTER LEASE, pursuant to the repayment-amortization schedule dated April 7,
\n1992. ASSIGNEE agrees that it shall be solely responsible for repayment of the
\ntenant improvement loan to the extent of the repayment-amortization schedule
\nthrough the end of the MASTER LEASE term. ASSIGNEE further covenants that if the
\noption to extend the term of this ASSIGNMENT is exercised by ASSIGNEE or for
\nASSIGNEE’s benefit, it shall continue to repay the tenant improvement loan
\npursuant to the repayment-amortization schedule referred to herein until said
\nloan is repaid in full. ASSIGNEE’s exercise of the option to extend the term of
\nthe lease of the PREMISES constitutes an assumption of the tenant improvement
\nloan and ASSIGNEE shall indemnify and hold harmless ASSIGNOR against any and all
\nrequests, claims or demands for payment from LESSOR or anyone acting on LESSOR’s
\nbehalf, including LESSOR’s creditors. Upon completion of repayment of the loan
\neither pursuant to the repayment-amortization schedule or earlier repayment of
\nthe loan, ASSIGNEE shall obtain and secure from LESSOR a complete release of
\nASSIGNOR from any and all claims arising or which may arise against ASSIGNOR or
\nin favor of LESSOR under the tenant improvement loan and repayment-amortization
\nschedule.<\/p>\n
ASSIGNOR hereby agrees that if the option to extend the term of this
\nASSIGNMENT is not exercised by ASSIGNEE or for ASSIGNEE’s benefit, ASSIGNOR
\nshall, upon termination of this ASSIGNMENT and the lease, promptly repay to
\nLESSOR the balance remaining due on the tenant improvement loan after ASSIGNEE
\nfulfills its obligations under the loan repayment-amortization schedule, without
\nabatement, reimbursement, or contribution from ASSIGNEE.<\/p>\n
ARTICLE 5 – SECURITY DEPOSIT<\/p>\n
Upon execution hereof, ASSIGNOR hereby assigns to ASSIGNEE his rights
\nto the security deposit under the MASTER LEASE in the sum of $1,925.00.<\/p>\n
ASSIGNEE shall pay to ASSIGNOR the sum of $1,925.00 within ten (10)
\nbusiness days of the date of this ASSIGNMENT as consideration for ASSIGNOR’s
\ntransfer of rights to his security deposit under the MASTER LEASE.<\/p>\n
ARTICLE 6 – USE OF PREMISES<\/p>\n
ASSIGNEE shall only make lawful use of the PREMISES of a quality
\nreasonably comparable to that use by ASSIGNOR or consistent with the general
\ncharacter of the premises generally, and such use of the PREMISES shall be in
\naccordance with the provisions of the MASTER LEASE regarding use of the premises
\n(paras. 1.4, 6.1).<\/p>\n
ARTICLE 7 – CONDITION OF THE PREMISES<\/p>\n
ASSIGNEE takes the PREMISES subject to all the rights of the LESSOR
\nreserved in the PREMISES, including liens and other priority rights, and subject
\nto all obligations imposed by the MASTER LEASE and in the condition as stated
\nbelow.<\/p>\n
ASSIGNEE acknowledges that as of the Commencement Date the PREMISES
\nand every part thereof, are in good condition and without need of repair.
\nASSIGNEE accepts the <\/p>\n
3<\/p>\n
PREMISES “as is”, ASSIGNEE having made all investigations and tests it deems
\nnecessary to establish to its own satisfaction the condition of the PREMISES.<\/p>\n
ASSIGNEE accepts the PREMISES subject to all applicable zoning,
\nmunicipal, county and state laws, ordinances, and regulations governing and
\nregulating the use of the PREMISES and any covenants or restrictions of record.
\nASSIGNEE acknowledges that neither ASSIGNOR nor LESSOR have made any
\nrepresentations or warranties as to the condition of the PREMISES or its present
\nor future suitability for ASSIGNEE’s purposes.<\/p>\n
ARTICLE 8 – NOTICES<\/p>\n
8.1 Manner of Service. Any notice, demand, request, consent,
\n —————–
\napproval, submittal, or communication that any party desires or is required to
\ngive to the other party or any other person shall be in writing and either
\nserved personally or sent by prepaid, first-class, certified mail to the address
\nset forth in Section 8.3, or by facsimile transmission at the phone number set
\nforth in Section 8.3.<\/p>\n
8.2 Change of Address. Any party may change its address or facsimile
\n —————–
\nphone number by promptly notifying the other party of the change of address or
\nphone number in writing. Such written notice of a change of address shall be
\nmade within five (5) business days of the effective date of said change of
\naddress. In the event the notice of change of address is delivered to the
\nfacsimile telephone number of the other parties, such address change is deemed
\neffective and received upon receipt of the sender of a transmission report
\nverifying that the facsimile transmission was sent. In the event notice of
\nchange of address is delivered through the U.S. mails, it shall be sent by first
\nclass mail and shall be deemed effective and received three days after mailing
\nsuch notice.<\/p>\n
In the event that any party fails to notify said other parties of a
\nchange of address as stated above, said party shall be liable for costs incurred
\nby any other party who must employ outside services to locate said party. This
\nprovision shall not allow any party to such locator collect fees against LESSOR.<\/p>\n
8.3 Addresses.
\n ———<\/p>\n
ASSIGNOR ASSIGNEE
\n——– ——–
\nDr. James M. LoConte, D.C. Internet Travel Network
\n124 University Avenue Suite 201 453 Sherman Avenue
\nPalo Alto, California 94301 Palo Alto, California 94306
\n Attention: Michael Schradle
\nFax to: (415) 326-1164 Fax to: (415) 614-6390<\/p>\n
ASSIGNOR’S GUARANTOR LESSOR
\n——————– ——
\nMr. Joseph LoConte Pio de Feo
\n28140 Story Hill Lane \/s\/ Pio de Feo
\n —————————-
\nLos Altos Hills, CA 94022 ____________________________
\n ____________________________
\n Fax to:_____________________ <\/p>\n
ARTICLE 9 – DISPUTES, ATTORNEYS’ FEES<\/p>\n
9.1 Agreement to Arbitrate Dispute. All disputes between ASSIGNOR and
\n ——————————
\nASSIGNEE arising under this ASSIGNMENT shall be submitted by the parties to
\nbinding arbitration.<\/p>\n
9.2 Attorneys’ Fees. The prevailing party (by arbitration award or
\n —————
\nsettlement) shall be entitled to recover as part of such proceeding its
\nreasonable attorneys’ fees and costs incurred in pursuing such arbitration and
\njudicially enforcing such arbitration award.<\/p>\n
ARTICLE 10 – NO RIGHT TO AMEND, ASSIGN OR SUBLEASE<\/p>\n
ASSIGNEE shall not have a right to amend, assign or sublease the
\nPREMISES without ASSIGNOR’s consent, which ASSIGNOR in its sole discretion may
\ndeny unless ASSIGNOR is released by LESSOR from any liability or obligation
\nunder the MASTER LEASE and LoCONTE ASSIGNMENT. Any such amendment, assignment or
\nsublease shall be deemed a termination of this ASSIGNMENT and ASSIGNOR’s
\nliabilities and obligations under the MASTER LEASE and LoCONTE ASSIGNMENT.<\/p>\n
Any such unapproved amendment, assignment or sublease shall not
\nrelieve ASSIGNEE of liability for rents, improvement costs, loan repayment
\nobligation, expenses, additional costs or fees under the MASTER LEASE or LoCONTE
\nASSIGNMENT transferred pursuant to this ASSIGNMENT.<\/p>\n
ARTICLE 11 – MISCELLANEOUS<\/p>\n
11.1 Entire Agreement. This ASSIGNMENT, Exhibits and Attachments
\n —————-
\nhereto constitute the entire agreement between the parties with respect to the
\nmatters described or referred to herein. ASSIGNOR has made no representations or
\nwarranties to ASSIGNEE except as expressly set forth herein. This ASSIGNMENT may
\nonly be amended pursuant to the terms of the MASTER LEASE.<\/p>\n
The following documents are incorporated by reference herein and
\nattached as exhibits:<\/p>\n
EXHIBIT 1 MASTER LEASE
\n EXHIBIT 2 LOCONTE ASSIGNMENT
\n EXHIBIT 3 TENANT IMPROVEMENT LOAN AMORTIZATION SCHEDULE DATED
\n APRIL 7, 1992<\/p>\n
11.2 Counterparts. This ASSIGNMENT may be executed in two or more
\n ————
\nidentical counterparts, each of which shall be deemed an original, but all of
\nwhich together shall constitute one and the same instrument.<\/p>\n
11.3 Facsimile As Original. A facsimile copy of this ASSIGNMENT may
\n ———————
\nbe executed as an original.<\/p>\n
11.4 LESSOR Consent. This ASSIGNMENT is conditioned on acceptance and
\n ————–
\nconsent by LESSOR as to the ASSIGNMENT and all the terms and conditions stated
\nherein.<\/p>\n
11.5 Due Authority. Each party represents and warrants that the
\n ————
\nperson(s) signing on its behalf have the authority to bind it to this
\nASSIGNMENT.<\/p>\n
Executed as of the date first set forth above.<\/p>\n
ASSIGNOR: ASSIGNEE:<\/p>\n
INTERNET TRAVEL NETWORK
\n____________________________
\nJAMES M. LoCONTE, D.C.<\/p>\n
By \/s\/[SIGNITURE ILLEGIBLE]^^
\n____________________________ —————————
\nJOSEPH LoCONTE, COSIGNER Its [ILLEGIBLE]
\n —————————<\/p>\n
CONSENT TO ASSIGNMENT<\/p>\n
The undersigned LESSOR hereby agrees to and accepts the above
\nAssignment of Lease and the terms thereof including the Option to Extend, with
\nthe understanding and condition that the Assignment of Lease does not release
\nASSIGNOR from the contracted obligations under the MASTER LEASE and LoCONTE
\nASSIGNMENT during the initial term of the MASTER LEASE should the ASSIGNEE fail
\nto perform any obligations of the MASTER LEASE and LoCONTE ASSIGNMENT.<\/p>\n
Date: 9\/30\/96 LESSOR:
\n ——————
\n \/s\/ Pio de Feo
\n ————————-
\n Pio de Feo<\/p>\n
February 4, 1996<\/p>\n
Dr. J. LoConte
\nCalifornia Avenue Chiropractic
\n451 Sherman Avenue, Suite #100
\nPalo Alto, CA 94306<\/p>\n
Re: Rent escalation<\/p>\n
Dear Dr. LoConte:<\/p>\n
Pursuant to the terms of the Addendum to you lease Assignment, the referenced
\nMaster Lease dated January 6, 1992, and the letter dated Sep. 27, 1995, your
\nmonthly rent is scheduled to increase effective March 1, 1996. This increase is
\ncomputed in accordance with the Consumer Price Index (CPI) and is limited to a
\nminimum of 4% and a maximum of 8%. Because the CPI increase during the last year
\nhas been less than 4%, your monthly rent increase will be based on the minimum
\nof 4%. As such, starting with the month of December 1994, and each month
\nthereafter until changed in accordance with the terms of your lease, your basic
\nrent shall be $1,694.96 * 1.04 = $1,762.76 reflecting that increase. Your total
\nmonthly payment, including the loan payment schedule of $130.04, shall be:
\n$1,762.76 + $130.04 = $1,892.80.<\/p>\n
If you have any questions regarding this information, please contact our
\noffices.<\/p>\n
Sincerely,<\/p>\n
Pio de Feo
\n Managing Partner<\/p>\n
ASSIGNMENT AND ASSUMPTION OF LESSOR’S INTEREST IN LEASE<\/p>\n
1. Dr. Alan A. Silverberg, D.C., Inc. (“Assignor”) does hereby assign and
\n ———————————-
\ntransfer to James M. LoConte (“Assignee”) for valuable consideration, the
\n —————————–
\nreceipt and sufficiency of which is acknowledged, all of Assignor rights under
\nthat certain Lease (the “Master Lease”) dated Jan. 6, 1992 by and between Pio de
\n ———— ——
\nFeo as Lessor (and Landlord), and Dr. Alan Silverberg, D.C., Inc. as Lessee,
\n— ——————————-
\nconcerning the real property commonly known as 451 Sherman Avenue, Suite 100,
\n ——————————
\nPalo Alto, California (the “Premises”).
\n———————<\/p>\n
2. Assignee hereby accepts the foregoing assignment and assumes and agrees to
\nfully observe and perform all obligations of the Assignor under the Master
\nLease. Including among these obligations accepted by the Assignee are the
\nAssignor obligations relative to the personal loan granted by Pio de Feo to the
\nAssignor according to all terms of the loan as described in Tenant Improvement
\nLoan document dated April 7, 1992 and signed by the Assignor, by Pio de Feo and
\nby Herman Harrow. The balance of this loan, prior to the Oct. 1, 1994 payment,
\nis $9,599.23 and the fixed monthly payment is $130.04 which includes Principal
\nand Interest payments.<\/p>\n
3. Mr. Joseph LoConte, father of the Assignee, is a Cosigner for all
\n ——————
\nobligations of the Assignee under the terms of this Assignment contract. The
\nCosigner promises to personally perform all obligations of the Assignee, should
\nthe Assignee fail to do so, including paying the monthly rent according to the
\nlease schedule in the Master Lease and paying the loan installments according to
\nthe terms of Tenant Improvement loan of Par. 3.<\/p>\n
4. Assignor does assign to the Assignee the security deposit under said Lease
\nin the sum of $1,925.00.<\/p>\n
5. Assignor and Assignee agree that this assignment is subject to the terms
\nand conditions of Landlord’s consent to Assignment set forth in the next page.<\/p>\n
LANDLORD’S CONSENT TO ASSIGNMENT<\/p>\n
1. Landlord’s consent to Assignment (Consent) is made and given this Oct. 28
\n ——-
\nday of 1994 by Pio de Feo (Lessor and Landlord’s) under the Lease described in
\n —- ———-
\nthe foregoing assignment, subject to the terms and conditions stated in this
\nConsent<\/p>\n
2. Reservation of Landlord’s rights. Landlord consent to the Assignment is
\n ——————————–
\ngiven pursuant to the Master Lease. The landlord specifically reserves all of
\nLandlord’s rights and privileges under the Master Lease. It is expressly
\nunderstood that nothing in this consent shall be construed to modify the Master
\nLease or to waive any of Landlord’s rights and privileges thereunder.<\/p>\n
THE EFFECTIVE DATE OF THIS ASSIGNMENT IS JAN. 1, 1995.<\/p>\n
\n
\n
\nDated Oct. 28, 1994
\n —————–
\nASSIGNOR: (Print) A. Silverberg (Sign) \/s\/ A. Silverberg
\n ———————– ————————-<\/p>\nASSIGNEE: (Print) James LoConte (Sign) \/s\/ James LoConte
\n ———————– ————————-<\/p>\n
ASSIGNEE CO-SIGNER: (Print) Joseph LoConte (Sign) \/s\/ Joseph LoConte
\n ———————– ————————-<\/p>\n
LESSOR\/LANDLORD: (Print) Pio de Feo (Sign) \/s\/ Pio de Feo
\n ———————– ————————-<\/p>\n
<\/c><\/c><\/table>\n
STANDARD OFFICE LEASE – GROSS
\n AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION<\/p>\n
1. Basic Lease Provisions (“Basic Lease Provisions”)
\n ———————- <\/p>\n
1.1 Parties: This Lease, dated for reference purposes only. January
\n ——-
\n6, 1992, is made by and between Pio DeFeo, an Individual (therein called
\n“Lessor”) and Dr. Alan A. Silverberg, D.C., Inc., doing business under the name
\nof California Avenue Chiropractic (therein called “Lessee”).<\/p>\n
1.2 Premises: Suite Number(s) #N, 1st floor, consisting of
\n ——–
\napproximately 1,100 sq. feet, more or less, as defined in paragraph 2 and as
\nshown on Exhibit “A” hereto (the “Premises”).<\/p>\n
1.3 Building: Commonly described as being located at 451 Sherman
\n ——–
\nAvenue, in the City of Palo Alto, County of Santa Clara, State of California as
\nmore particularly described in Exhibit A hereto, and as defined in paragraph 2.<\/p>\n
1.4 Use: Chiropractic Office, subject to paragraph 6.
\n — <\/p>\n
1.5 Term: five (5) years commencing March 1, 1992 (“Commencement
\n —-
\nDate”) and ending February 28, 1997, as defined in paragraph 3.<\/p>\n
1.6 Base Rent: One Thousand Nine Hundred Twenty-five & No\/100
\n ———
\nDollars ($1,925.00) per month, payable on the 1st day of each month per
\nparagraph 4.1.<\/p>\n
1.7 Base Rent Increase: On March 1, 1993, and each subsequent year,
\n ——————
\nthe monthly Base Rent payable under paragraph 1.6 above shall be adjusted as
\nprovided in paragraph 4.3 below.<\/p>\n
1.8 Rent Paid Upon Execution: One Thousand Nine Hundred Twenty-five
\n ————————
\nand No\/100 Dollars ($1,925.00) as prepaid rent for April 1992. (The rent for
\nMarch 1992 is abated.)<\/p>\n
1.9 Security Deposit: One Thousand Nine Hundred Twenty-five and
\n —————-
\nNo\/100 Dollars ($1,925.00).<\/p>\n
1.10 Deleted<\/p>\n
2. Premises, Parking and Common Areas.
\n ———————————- <\/p>\n
2.1 Premises: The Premises are a portion of a building, herein
\n ——–
\nsometimes referred to as the “Building” identified in paragraph 1.3 of the Basic
\nLease Provisions. “Building” shall include adjacent parking structures used in
\nconnection therewith. The Premises, the Building, the Common Areas, the land
\nupon which the same are located, along with all other buildings and improvements
\nthereon or thereunder, are herein collectively referred to as the “Office
\nBuilding Project.” Lessor hereby leases to Lessee and Lessee leases from <\/p>\n
Lessor for the term, at the rental, and upon all of the conditions set forth
\nherein, the real property referred to in the Basic Lease Provisions, paragraph
\n1.2, as the “Premises,” including rights to the Common Areas as hereinafter
\nspecified.<\/p>\n
2.2 Deleted.<\/p>\n
2.2.1 Deleted.<\/p>\n
2.2.2 Deleted.<\/p>\n
2.3 Common Areas–Definition. The term “Common Areas” is defined
\n ————————
\nas all areas and facilities outside the Premises and within the exterior
\nboundary line of the Office Building Project that are provided and designated by
\nthe Lessor from time to time for the general non-exclusive use of Lessor, Lessee
\nand of other lessees of the Office Building Project and their respective
\nemployees, suppliers, shippers, customers and invitees, including but not
\nlimited to common entrances, lobbies, corridors, stairways and stairwells,
\npublic restrooms, elevators, escalators, parking areas to the extent not
\notherwise prohibited by this Lease, loading and unloading areas, trash areas,
\nroadways, sidewalks, walkways, parkways, ramps, driveways, landscaped areas and
\ndecorative walls.<\/p>\n
2.4 Common Areas–Rules and Regulations. Lessee agrees to abide by
\n ———————————–
\nand conform to the rules and regulations attached hereto as Exhibit B with
\nrespect to the Office Building Project and Common Areas, and to cause its
\nemployees, suppliers, customers, and invitees to so abide and conform. Lessor or
\nsuch other person(s) as Lessor may appoint shall have the exclusive control and
\nmanagement of the Common Areas and shall have the right, from time to time, to
\nmodify, amend and enforce and rules and regulations. Lessor shall not be
\nresponsible to Lessee for the noncompliance with said rules and regulations by
\nother lessees, their agents, employees and invitees of the Office Building
\nProject.<\/p>\n
2.5 Common Areas–Changes. Lessor shall have the right, in
\n ———————
\nLessor’s sole discretion, from time to time:<\/p>\n
(a) To make changes to the Building interior and exterior and
\nCommon Areas, including, without limitation, changes in the location, size,
\nshape, number, and appearance thereof, including but not limited to the lobbies,
\nwindows, stairways, air shafts, elevators, escalators, restrooms, driveways,
\nentrances, parking spaces, parking areas, loading and unloading areas, ingress,
\negress, direction of traffic, decorative walls, landscaped areas and walkways;
\nprovided, however, Lessor shall at all times provide the parking facilities
\nrequired by applicable law;<\/p>\n
(b) To close temporarily any of the Common Areas for
\nmaintenance purposes so long as reasonable access to the Premises remains
\navailable;<\/p>\n
(c) To designate other land and improvements outside the
\nboundaries of the Office Building Project to be a part of the Common Areas,
\nprovided that such other land and improvements have a reasonable and functional
\nrelationship to the Office Building Project;<\/p>\n
2<\/p>\n
(d) To add additional buildings and improvements to the
\nCommon Areas;<\/p>\n
(e) To use the Common Areas while engaged in making
\nadditional improvements, repairs or alterations to the Office Building Project
\nor any portion thereof;<\/p>\n
(f) To do and perform such other acts and make such other
\nchanges in, to or with respect to the Common Areas and Office Building Project
\nis Lessor may, in the exercise of sound business judgment deem to be
\nappropriate.<\/p>\n
3. Term.
\n —- <\/p>\n
3.1 Term. The term and Commencement Date of this Lease shall be
\n —-
\nas specified in paragraph 1.5 of the Basic Lease Provisions.<\/p>\n
3.2 Delay in Possession. Notwithstanding said Commencement Date,
\n ——————-
\nif for any reason Lessor cannot deliver possession of the Premises to Lessee on
\nsaid date and subject to paragraph 3.2.2, Lessor shall not be subject to any
\nliability therefor, nor shall such failure affect the validity of this Lease or
\nthe obligations of Lessee hereunder or extend the term hereof; but, in such
\ncase, Lessee shall not be obligated to pay rent or perform any other obligation
\nof Lessee under the terms of this Lease, except as may be otherwise provided in
\nthis Lease, until possession of the Premises is tendered to Lessee, as
\nhereinafter defined; provided, however, that if Lessor shall not have delivered
\npossession of the Premises within sixty (60) days following said Commencement
\nDate, as the same may be extended under the terms of a Work Letter executed by
\nLessor and Lessee. Lessee may, at Lessee’s option, by notice in writing to
\nLessor within ten (10) days thereafter, cancel this Lease, in which event the
\nparties shall be discharged from all obligations hereunder; provided, however,
\nthat, as to Lessee’s obligations, Lessee first reimburses Lessor for all costs
\nincurred for Non-Standard improvements and, as o Lessor’s obligations, Lessor
\nshall return any money previously deposited by Lessee (less any offsets due
\nLessor for Non-Standard Improvements); and provided further, that if such
\nwritten notice by Lessee is not received by Lessor within said ten (10) day
\nperiod, Lessee’s right to cancel this Lease hereunder shall terminate and be of
\nno further force or effect.<\/p>\n
3.2.1 Possession Tendered–Defined. Possession of the Premises
\n —————————-
\nshall be deemed tendered to Lessee (“Tender of Possession”) when (1) the
\nimprovements to be provided by Lessor under this Lease are substantially
\ncompleted, (2) the Building utilities are ready for use in the Premises, (3)
\nLessee has reasonable access to the Premises, and (4) ten (10) days shall have
\nexpired following advance written notice to Lessee of the occurrence of the
\nmatters described in (1), (2) and (3), above of this paragraph 3.2.1.<\/p>\n
3.2.2 Delays Caused by Lessee. There shall be no abatement of
\n ———————–
\nrent, and the sixty (60) day period following the Commencement Date before which
\nLessee’s right to cancel this Lease accrues under paragraph 3.2, shall be deemed
\nextended to the extent of any delays caused by acts or omissions of Lessee,
\nLessee’s agents, employees and contractors.<\/p>\n
3<\/p>\n
3.3 Early Possession. If Lessee occupies the Premises prior to
\n —————-
\nsaid Commencement Date, such occupancy shall be subject to all provisions of
\nthis Lease, such occupancy shall not change the termination date, and Lessee
\nshall pay rent for such occupancy.<\/p>\n
3.4 Uncertain Commencement. In the event commencement of the Lease
\n ———————-
\nterm is defined as the completion of the improvements, Lessee and Lessor shall
\nexecute an amendment to this Lease establishing the date of Tender of Possession
\n(as defined in paragraph 3.2.1) or the actual taking of possession by Lessee,
\nwhichever first occurs, as the Commencement Date.<\/p>\n
4. Rent.
\n —- <\/p>\n
4.1 Base Rent. Subject to adjustment as hereinafter provided in
\n ———
\nparagraph 4.3, and except as may be otherwise expressly provided in this Lease,
\nLessee shall pay to Lessor the Base Rent for the Premises set forth in paragraph
\n1.6 of the Basic Lease Provisions, without offset or deduction. Lessee shall pay
\nLessor upon execution hereof the advance Base Rent described in paragraph 1.6 of
\nthe Basic Lease Provisions. Rent for any period during the term hereof which is
\nfor less than one month shall be prorated based upon the actual number of days
\nof the calendar month involved. Rent shall be payable in lawful money of the
\nUnited States to Lessor at the address stated herein or to such other persons or
\nat such other places as Lessor may designate in writing.<\/p>\n
4.2 Releted<\/p>\n
4.3 Rent Increase.
\n ————- <\/p>\n
4.3.1 At the times set forth in paragraph 1.7 of the Basic Lease
\nProvisions, the monthly Base Rent payable under paragraph 4.1 of this Lease
\nshall be adjusted by the increase, if any, in the Consumer Price Index of the
\nBureau of Labor Statistics of the Department of Labor for All Urban Consumers,
\n(1967 = 100). “All Items,” for the city nearest the location of the Building,
\nherein referred to as “C.P.I.”, since the date of this Lease. However, the
\nincrease in Base Rent shall be subject to a minimum increase of four percent
\n(4%) per year and shall be no more than eight percent (8%) per year.<\/p>\n
4.3.2 The monthly Base Rent payable pursuant to paragraph 4.3.1 shall
\nbe calculated as follows: the Base Rent payable for the first month of the term
\nof this Lease, as set forth in paragraph 4.1 of this Lease, shall be multiplied
\nby a fraction, the numerator of which shall be the C.P.I. of the calendar month
\nduring which the adjustments is to take effect, and the denominator of which
\nshall be the C.P.I. for the calendar month in which the original Lease form
\ncommences. The sum so calculated shall constitute the new monthly Base Rent
\nhereunder, but, in no event, shall such new monthly Base Rent be less than the
\nBase Rent payable for the month immediately preceding the date for the rent
\nadjustment.<\/p>\n
4.3.3 In the event the compilation and\/or publication of the C.P.I.
\nshall be transferred to any other governmental department or bureau or
\n[illegible copy] be discontinued, then the index most nearly the same as the
\nC.P.I. shall be used to make such calculations. In the event that Lessor
\n[illegible copy] cannot agree on such alternative index, then the matter shall
\nbe submitted for decision to the American Arbitration Association in the<\/p>\n
4<\/p>\n
[illegible copy] in which the Premises are located, in accordance with the then
\nrules of said association, and the decision of the arbitrators shall be binding
\n[illegible copy] the parties, notwithstanding one party failing to appear after
\ndue notice of the proceeding. The cost of said Arbitrators shall be paid equally
\nby Lessor and Lessee.<\/p>\n
4.3.4 Lessee shall continue to pay the rent at the rate previously in
\neffect until the increase, if any, is determined within five (5) days following
\nthe date on which the increase is determined. Lessee shall make such payment to
\nLessor as will bring the increased rental current, commencing with the effective
\ndate of such increase through the date of any rental installments then due.
\nThereafter the rental shall be paid at the increased rate.<\/p>\n
4.3.5 At such time as the amount of any change in rental required by
\nthis lease is known or determined, Lessor and Lessee shall execute an amendment
\nto this Lease setting forth such change.<\/p>\n
5. Security Deposit. Lessee shall deposit with Lessor upon execution
\n —————-
\nhereof the security deposit set forth in paragraph 1.9 of the Basic Lease
\nProvisions as security for Lessee’s faithful performance of Lessee’s obligations
\nhereunder. If Lessee fails to pay rent or other charges due hereunder, or
\notherwise defaults with respect to any provision of this Lease. Lessor may use,
\napply or retain all or any portion of said deposit for the payment of any rent
\nor other charge in default for the payment of any other sum to which Lessor may
\nbecome obligated by reason of Lessee’s default, or to compensate Lessor for any
\nloss or damage which Lessor may suffer thereby. If Lessor so uses or applies all
\nor any portion of said deposit, Lessee shall within ten (10) days after written
\ndemand therefor deposit cash with Lessor in an amount sufficient to restore said
\ndeposit to the full amount then required of Lessee. If the monthly Base Rent
\nshall, from time to time, increase during the term of this Lease, Lessee shall,
\nat the time of such increase, deposit with Lessor additional money as a security
\ndeposit so that the total amount of the security deposit held by Lessor shall at
\nall times bear the same proportion to the then current Base Rent as the initial
\nsecurity deposit separate from its general accounts. If Lessee performs all of
\nLessee’s obligations hereunder, said deposit, or so much thereof as has not
\nheretofore been applied by Lessor, shall be returned, without payment of
\ninterest or other increment for its use, to Lessee (or, at Lessor’s option, to
\nthe last assignee, if any, of Lessee’s interest hereunder) at the expiration of
\nthe term hereof, and after Lessee has vacated the Premises. No trust
\nrelationship is created herein between Lessor and Lessee with respect to said
\nSecurity Deposit.<\/p>\n
6. Use.
\n —<\/p>\n
6.1 Use. The Premises shall be used and occupied only for the purpose
\n —
\nset forth in paragraph 1.4 of the Basic Lease Provisions or any other use which
\nis reasonably comparable to that use and for no other purpose.<\/p>\n
6.2 Compliance with Law.
\n ——————-<\/p>\n
(a) Lessor warrants to Lessee that the Premises, in the state
\nexisting on the date that the Lease term commences, but without regard to
\nalterations or improvements made by Lessee or the use for which Lessee will
\noccupy the Premises, does not violate any covenants or restrictions of record,
\nor any applicable building code, regulation or <\/p>\n
5<\/p>\n
ordinance in effect on such Lease term Commencement Date. In the event it is
\ndetermined that this warranty has been violated, then it shall be the obligation
\nof the Lessor, after written notice from Lessee, to promptly, at Lessor’s sole
\ncost and expense rectify any such violation.<\/p>\n
(b) Except as provided in paragraph 6.2(a) Lessee shall, at
\nLessee’s expense, promptly comply with all applicable statutes, ordinances,
\nrules, regulations, orders, covenants and restrictions of record and
\nrequirements of any fire insurance underwriters or rating bureaus now in effect
\nor which may hereafter come into effect, whether or not they reflect a change in
\npolicy from that now existing, during that term of any part of the term hereof,
\nrelating to any manner to the Premises and the occupation and use by Lessee of
\nthe Premises. Lessee shall conduct its business in a lawful manner and shall not
\nuse or permit the use of the Premises of the Common Areas in any manner that
\nwill lend to create waste or a nuisance or shall tend to disturb other occupants
\nof the Office Building Project.<\/p>\n
6.3 Condition of Premises. See Addendum, paragraph 51.
\n ———————<\/p>\n
(a) Lessor warrants to Lessee that the Premises, in the state
\nexisting on the date that the Lease term commences, but without regard to
\nalterations or improvements made by Lessee or the use for which Lessee will
\noccupy the Premises, does not violate any covenants or restrictions of records,
\nor any applicable building code, regulation or ordinance in effect on such Lease
\nterm Commencement Date. In the event it is determined that this warranty has
\nbeen violated, then it shall be the obligation of the Lessor, after written
\nnotice from Lessee, to promptly at Lessor’s sole cost and expense, rectify any
\nsuch violation.<\/p>\n
(b) Except as provided in this Lease, Lessee hereby accepts the
\nPremises and the Office Building Project in their condition existing as of the
\nLease Commencement Date or the date that Lessee takes possession of the
\nPremises, whichever is earlier, subject to all applicable zoning, municipal,
\ncounty and state laws, ordinances and regulations governing and regulating the
\nuse of the Premises, and any easements, covenants or restrictions of record, and
\naccepts this Lease subject thereto and to all matters disclosed thereby and by
\nany exhibits attached hereto. Lessee acknowledges that it has satisfied itself
\nby its own independent investigation that the Premises are suitable for its
\nintended use, and that neither Lessor nor Lessor’s agent or agents has made any
\nrepresentation or warranty as to the present or future suitability of the
\nPremises, Common Areas, or Office Building Project for the conduct of Lessee’s
\nbusiness.<\/p>\n
7. Maintenance, Repairs, Alterations and Common Area Services.
\n ———————————————————-<\/p>\n
7.1 Lessor’s Obligations. Lessor shall keep the Office Building
\nProject, including the Premises, interior and exterior walls, roof, and common
\nareas, and the equipment whether used exclusively for the Premises or in common
\nwith other premises, in good condition and repair; provided, however, Lessor
\nshall not be obligated to paint, repair or replace wall coverings, or to repair
\nor replace any improvements that are not ordinarily a part of the Building or
\nare above then Building standards. Except as provided in paragraph 9.5, there
\nshall be no abatement of rent or liability of Lessee on account of any injury or
\ninterference with Lessee’s business with respect to any improvements,
\nalterations or repairs made by Lessor to the Office Building Project or any part
\nthereof. Lessee expressly waives the benefits of any statute <\/p>\n
6<\/p>\n
now or hereafter in effect which would otherwise afford Lessee the right to make
\nrepairs at Lessor’s expense or to terminate this Lease because of Lessor’s
\nfailure to keep the Premises in good order, condition and repair.<\/p>\n
7.2 Lessee’s Obligations.
\n ——————–<\/p>\n
(a) Notwithstanding Lessor’s obligation to keep the Premises in
\ngood condition and repair, Lessee shall be responsible for payment of the cost
\nthereof to Lessor as additional rent for that portion of the cost of any
\nmaintenance and repair of the Premises, or any equipment (wherever located) that
\nserves only Lessee or the Premises, to the extent such cost is attributable to
\ncauses beyond normal wear and tear, Lessee shall be responsible for the cost of
\npainting, repairing or replacing wall coverings, and to repair or replace any
\nPremises improvements that are not ordinarily a part of the Building or that are
\nabove then Building standards. Lessor may, at its option, upon reasonable
\nnotice, elect to have Lessee perform any particular such maintenance or repairs
\nthe cost of which is otherwise Lessee’s responsibility hereunder.<\/p>\n
(b) On the last day of the term hereof, or on any sooner
\ntermination, Lessee shall surrender the Premises to Lessor in the same condition
\nas received, ordinary wear and tear excepted, clean and free of debris. Any
\ndamage or deterioration of the Premises shall not be deemed ordinary wear and
\ntear if the same could have been prevented by good maintenance practices by
\nLessee. Lessee shall repair any damage to the Premises occasioned by the
\ninstallation or removal of Lessee’s trade fixtures, alterations, furnishings and
\nequipment. Except as otherwise stated in this Lease, Lessee shall leave the air
\nlines, power panels, electrical distribution systems, lighting fixtures, air
\nconditioning, window coverings, wall coverings, carpets, wall panelling,
\nceilings and plumbing on the Premises and in good operating condition.<\/p>\n
7.3 Alterations and Additions. Lessee shall provide Lessor a written
\n ————————-
\ndescription of equipment which Lessee attaches to the Premise and which shall be
\nremoved upon Lease expiration. Lessee shall be responsible for any repairs
\nnecessary to walls or floor as a result of such installation and removal.<\/p>\n
(a) Lessee shall not, without Lessor’s prior written consent
\nmake any alterations, improvements, additions, Utility Installations or repairs
\nin, on or about the Premises, or the Office Building Project. As used in this
\nparagraph 7.3 the term “Utility Installation” shall mean carpeting, window and
\nwall coverings, power panels, electrical distribution systems, lighting
\nfixtures, air conditioning, plumbing, and telephone and telecommunication wiring
\nand equipment. At the expiration of the term, Lessor may require the removal of
\nany or all of said alterations, improvements, additions or Utility Installations
\nand the restoration of the Premises and the Office Building Project to their
\nprior condition, at Lessee’s expense. Should Lessor permit Lessee to make its
\nown alterations, improvements, additions or Utility Installations. Lessee shall
\nuse only such contractor as has been expressly approved by Lessor, and Lessor
\nmay require Lessee to provide Lessor, at Lessee’s sole cost and expense, a lien
\nand completion bond in an amount equal to one and one-half times the estimated
\ncost of such improvements, to insure Lessor against any liability for mechanic’s
\nand materialmen’s liens and to insure completion of the work. Should Lessee make
\nany alterations, improvements, <\/p>\n
7<\/p>\n
additions or Utility Installations without the prior approval of Lessor, or use
\na contractor not expressly approved by Lessor, Lessor may, at any time during
\nthe term of this Lease, require that Lessee remove any part or all of the same.<\/p>\n
(b) Any alterations, improvements, additions or Utility
\nInstallations in or about the Premises or the Office Building Project that
\nLessee shall desire to make shall be presented to Lessor in written form, with
\nproposed detailed plans. If Lessor shall give its consent to Lessee’s making
\nsuch alteration, improvement, addition or Utility Installation, the consent
\nshall be deemed conditioned upon Lessee acquiring a permit to do so from the
\napplicable governmental agencies, furnishing a copy thereof to Lessor prior to
\nthe commencement of the work, and compliance by Lessee with all conditions of
\nsaid permit in a prompt and expeditious manner.<\/p>\n
(c) Lessee shall pay, when due, all claims for labor or
\nmaterials furnished or alleged to have been furnished to or for Lessee at or for
\nuse in the Premises which claims are or may be secured by any mechanic’s or
\nmaterialmen’s lien against the Premises, the Building or the Office Building
\nProject, or any interest therein.<\/p>\n
(d) Lessee shall give Lessor not less than ten (10) days’ notice
\nprior to the commencement of any work in the Premises by Lessee, and Lessor
\nshall have the right to post notices of non-responsibility in or on the Premises
\nor the Building as provided by law if Lessee shall, in good faith, contest the
\nvalidity of any such lien, claim or demand, then Lessee shall, at its sole
\nexpense defend itself and Lessor against the same and shall pay and satisfy any
\nsuch adverse judgment that may be rendered thereon before the enforcement
\nthereof against the Lessor or the Premises [illegible copy] Office Building
\nProject, upon the condition that if Lessor shall require, Lessee shall furnish
\nto Lessor a surety bond satisfactory to [illegible copy] equal to such contested
\nlien claim or demand indemnifying Lessor against liability for the same and
\nholding the Premises, the Building [illegible copy] Building Project free from
\nthe effect of such lien or claim. In addition, Lessor may require Lessee to pay
\nLessor’s reasonable attorneys’ fees [illegible copy] in participating in such
\naction if Lessor shall decide it is to Lessor’s best interest so to do.<\/p>\n
(e) All alterations, improvements, additions and Utility
\nInstallations (whether or not such Utility Installations constitute trade
\nfixtures of Lessee), which may be made to the Premises by Lessee, including but
\nnot limited to, floor coverings, panelings, doors, drapes, built-ins, moldings,
\nsound attenuation, and lighting and telephone or communication systems, conduit,
\nwiring and outlets, shall be made and done in a good and workmanlike manner and
\nof good and sufficient quality and materials and shall be the property of Lessor
\nand remain upon and be surrendered with the Premises at the expiration of the
\nLease term, unless Lessor requires their removal pursuant to paragraph 7.3(a).
\nProvided Lessee is not in default, notwithstanding the provisions of this
\nparagraph 7.3(e), Lessee’s personal property and equipment, other than that
\nwhich is affixed to the Premises so that it cannot be removed without material
\ndamage to the Premises or the Building, and other than Utility Installations,
\nshall remain the property of Lessee and may be removed by Lessee subject to the
\nprovisions of paragraph 7.2.<\/p>\n
8<\/p>\n
(f) Lessee shall provide Lessor with as-built plans and
\nspecifications for any alterations, improvements, additions or Utility
\nInstallations.<\/p>\n
7.4 Utility Additions. Lessor reserves the right to install new or
\n —————–
\nadditional utility facilities throughout the Office Building Project for the
\nbenefit of Lessor or Lessee, or any other lessee of the Office Building Project,
\nincluding, but not by way of limitation, such utilities as plumbing, electrical
\nsystems, communication systems, and fire protection and detection systems, so
\nlong as such installations do not unreasonably interfere with Lessee’s use of
\nthe Premises.<\/p>\n
8. Insurance; Indemnity.
\n ——————–<\/p>\n
8.1 Liability Insurance–Lessee. Lessee shall, at Lessee’s expense,
\n —————————
\nobtain and keep in force during the term of this Lease a policy of Commercial
\nGeneral Liability insurance utilizing an Insurance Services Office standard form
\nwith Broad Form General Liability Endorsement (GLO404), or equivalent, in an
\namount of not less than $1,000,000 per occurrence of bodily injury and property
\ndamage combined or in a greater amount as reasonably determined by Lessor and
\nshall insure Lessee with Lessor as an additional insured against liability
\narising out of the use, occupancy or maintenance of the Premises. Compliance
\nwith the above requirement shall not, however, limit the liability of Lessee
\nhereunder.<\/p>\n
8.2 Liability Insurance–Lessor. Lessor shall obtain and keep in
\n —————————
\nforce during the term of this Lease a policy of Combined Single Limit Bodily
\nInjury and Broad Form Property Damage Insurance, plus coverage against such
\nother risks Lessor deems advisable from time to time, insuring Lessor, but not
\nLessee, against liability arising out of the ownership, use, occupancy or
\nmaintenance of the Office Building Project in an amount not less than
\n$5,000,000.00 per occurrence.<\/p>\n
8.3 Property Insurance–Lessee. Lessee shall, at Lessee’s expense,
\n ————————–
\nobtain and keep in force during the term of this Lease for the benefit of
\nLessee, replacement cost fire and extended coverage insurance, with vandalism
\nand malicious mischief, sprinkler leakage endorsements in an amount sufficient
\nto cover not less than 100% of the full replacement cost, as the same may exist
\nfrom time to time, of all of Lessee’s personal property, fixtures, equipment and
\ntenant improvements.<\/p>\n
8.4 Property Insurance–Lessor. Lessor shall obtain and keep in force
\n ————————–
\nduring the term of this Lease a policy or policies of insurance covering loss or
\ndamage to the Office Building Project improvements, but not Lessee’s personal
\nproperty, fixtures, equipment or tenant improvements, in the amount of the full
\nreplacement cost thereof, as the same may exist from time to time, utilizing
\nInsurance Services Office standard form, or equivalent, providing protection
\nagainst all perils included within the classification of fire, extended
\ncoverage, vandalism, malicious mischief, plate glass, and such other perils as
\nLessor deems advisable or may be required by a lender having a lien on the
\nOffice Building Project. In addition, Lessor shall obtain and keep in force,
\nduring the term of this Lease, a policy of rental value insurance covering a
\nperiod of one year, with loss payable to Lessor, which insurance shall also
\ncover all Operating Expenses for said period. Lessee will not be named in any
\nsuch policies carried by Lessor and shall have no right to any proceeds
\ntherefrom. The policies required by these <\/p>\n
9<\/p>\n
paragraphs 8.2 and 8.4 shall contain such deductibles as Lessor or the aforesaid
\nlender may determine. In the event that the Premises shall suffer an insured
\nloss as defined in paragraph 9.1(f) hereof, the deductible amounts under the
\napplicable insurance policies shall be deemed an Operating Expense. Lessee shall
\nnot do or permit to be done anything which shall invalidate the insurance
\npolicies carried by Lessor. Lessee shall pay the entirety of any increase in the
\nproperty insurance premium for the Office Building Project over what it was
\nimmediately prior to the commencement of the term of this Lease if the increase
\nis specified by Lessor’s insurance carrier as being caused by the nature of
\nLessee’s occupancy or any act or omission of Lessee.<\/p>\n
8.5 Insurance Policies. Lessee shall deliver to Lessor copies of
\n ——————
\nliability insurance policies required under paragraph 8.1 or certificates
\nevidencing the existence and amounts of such insurance within seven (7) days
\nafter the Commencement Date of this Lease. No such policy shall be cancellable
\nor subject to reduction of coverage or other modification except after thirty
\n(30) days prior written notice to Lessor. Lessee shall, at least thirty (30)
\ndays prior to the expiration of such policies, furnish Lessor with renewals
\nthereof.<\/p>\n
8.6 Waiver of Subrogation. Lessee and Lessor each hereby release and
\n ———————
\nrelieve the other, and waive their entire right of recovery against the other,
\nfor direct or consequential loss or damage arising out of or incident to the
\nperils covered by property insurance carried by such party whether due to the
\nnegligence of Lessor or Lessee or their agents, employees, contractors and\/or
\ninvitees. If necessary all property insurance policies required under this Lease
\nshall be endorsed to so provide.<\/p>\n
8.7 Indemnity. Lessee shall indemnify and hold harmless Lessor and
\n ———
\nits agents, Lessor’s master or ground lessor, partners and lenders, from and
\nagainst any and all claims for damage to the person or property of anyone or any
\nentity arising from Lessee’s use of the Office Building Project, or from the
\nconduct of Lessee’s business or from any activity, work or things done,
\npermitted or suffered by Lessee in or about the Premises or elsewhere and shall
\nfurther indemnify and hold harmless Lessor from and against any and all claims,
\ncosts and expenses arising from any breach or default in the performance of any
\nobligation on Lessee’s part to be performed under the terms of this Lease, or
\narising from any act or omission of Lessee, or any Lessee’s agents, contractors,
\nemployees or invitees, and from and against all costs, attorney’s fees, expenses
\nand liabilities incurred by Lessor as the result of any such use, conduct,
\nactivity, work, things done, permitted or suffered, breach, default or
\nnegligence, and in dealing reasonably therewith, including but not limited to
\nthe defense or pursuit of any claim or any action or proceeding involved
\ntherein; and in case any action or proceeding be brought against Lessor by
\nreason of any such matter, Lessee upon notice from Lessor shall defend the same
\nat Lessee’s expense by counsel reasonably satisfactory to Lessor and Lessor
\nshall cooperate with Lessee in such defense. Lessor need not have first paid
\nany such claim in order to be so indemnified. Lessee, as a material part of the
\nconsideration to Lessor, hereby assumes all risk of damage to property of Lessee
\nor injury to persons, in, upon or about the Office Building Project arising from
\nany cause and Lessee hereby waives all claims in respect thereof against Lessor.<\/p>\n
8.8 Exemption of Lessor from Liability. Lessee hereby agrees that
\n ———————————-
\nLessor shall not be liable for injury to Lessee’s business or any loss of income
\nherefrom or for loss of or damage to the goods, wares, merchandise or other
\nproperty of Lessee. Lessee’s <\/p>\n
10<\/p>\n
employees, invitees, customers, or any other person in or about the Premises or
\nthe Office Building Project, nor shall Lessor be liable for injury to the person
\nof Lessee, Lessee’s employees, agents or contractors, whether such damages or
\ninjury is caused by or results from theft, fire, steam, electricity, gas, water
\nor rain, or from the breakage, leakage, obstruction or other defects of pipes,
\nsprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures,
\nor from any other cause, whether said damage or injury results from conditions
\narising upon the Premises or upon other portions of the Office Building Project,
\nor from other sources or places, or from new construction or the repair,
\nalteration or improvement of any part of the Office Building Project, or of the
\nequipment, fixtures or appurtenances applicable thereto, and regardless of
\nwhether the cause of such damage or injury or the means of repairing the same is
\ninaccessible, Lessor shall not be liable for any damages arising from any act or
\nneglect of any other lessee, occupant or user of the Office Building Project,
\nnor from the failure of Lessor to enforce the provisions of any other lease of
\nany other lessee of the Office Building Project.<\/p>\n
8.9 No Representation of Adequate Coverage. Lessor makes no
\n ————————————–
\nrepresentation that the limits or forms of coverage of insurance specified in
\nthis paragraph 8 are adequate to cover Lessee’s property or obligations under
\nthis Lease.<\/p>\n
9. Damage or Destruction.
\n ———————<\/p>\n
9.1 Definitions.
\n ———– <\/p>\n
(a) “Premises Damage” shall mean if the Premises are damaged or
\ndestroyed to any extent.<\/p>\n
(b) “Premises Building Partial Damage” shall mean if the
\nBuilding of which the Premises are a part is damaged or destroyed to the extent
\nthat the cost to repair is less than fifty percent (50%) of the then Replacement
\nCost of the building.<\/p>\n
(c) “Premises Building Total Destruction” shall mean if the
\nBuilding of which the Premises are a part is damaged or destroyed to the extent
\n[illegible copy] the cost to repair is fifty percent (50%) or more of the then
\nReplacement Cost of the Building.<\/p>\n
(d) “Office Building Project Buildings” shall mean all of the
\nbuildings on the Office Building Project site.<\/p>\n
(e) “Office Building Project Buildings Total Destruction” shall
\nmean if the Office Building Project Buildings are damaged or destroyed to the
\nextent that the cost of repair is fifty percent (50%) or more of the then
\nReplacement Cost of the Office Building Project Buildings.<\/p>\n
(f) “Insured Loss” shall mean damage or destruction which was
\ncaused by an event required to be covered by the insurance described in
\nparagraph 8. The fact that an Insured Loss has a deductible amount shall not
\nmake the loss an uninsured loss.<\/p>\n
(g) “Replacement Cost” shall mean the amount of money necessary
\nto be spent in order to repair or rebuild the damaged area to the condition that
\nexisted <\/p>\n
11<\/p>\n
immediately prior to the damage occurring, excluding all improvements made by
\nlessees, other than those installed by Lessor at Lessee’s expense.<\/p>\n
9.2 Premises Damage, Premises Building Partial Damage.
\n ————————————————-<\/p>\n
(a) Insured Loss. Subject to the provisions of paragraphs 9.4
\n ————
\nand 9.5, if at any time during the term of this Lease there is damage which is
\nan insured loss and which falls into the classification of either Premises
\nDamage or Premises Building Partial Damage, then Lessor shall, as soon as
\nreasonably possible and to the extent the required materials and labor are
\nreadily available through usual commercial channels at Lessor’s expense, repair
\nsuch damage (but not Lessee’s fixtures, equipment or tenant improvements
\noriginally paid for by Lessee) to its condition existing at the time of the
\ndamage and this Lease shall continue in full force and effect.<\/p>\n
(b) Uninsured Loss. Subject to the provisions of paragraphs 9.4
\n ————–
\nand 9.5, if at any time during the term of this Lease there is damage which is
\nnot an Insured Loss and which falls within the classification of Premises Damage
\nor Premises Building Partial Damage, unless caused by a negligent or willful act
\nof Lessee (in which event Lessee shall make the repairs at Lessee’s expense),
\nwhich damage prevents Lessee from making any substantial use of the Premises.
\nLessor may at Lessor’s option either (i) repair such damage as soon as
\nreasonably possible at Lessor’s expense, in which event this Lease shall
\ncontinue in full force and effect, or (ii) give written notice to Lessee within
\nthirty (30) days after the date of the occurrence of such damage of Lessor’s
\nintention to cancel and terminate this Lease as of the date of the occurrence of
\nsuch damage, in which event this Lease shall terminate as of the date of the
\noccurrence of such damage.<\/p>\n
9.3 Premises Building Total Destruction; Office Building Project
\n ————————————————————
\nTotal Destruction. Subject to the provisions of paragraphs 9.4 and 9.5, if at
\n—————–
\nany time during the term of this Lease there is damage, whether or not it is an
\nInsured Loss, which falls into the classifications of either (i) Premises
\nBuilding Total Destruction, or (ii) Office Building Project Total Destruction,
\nthen Lessor may at Lessor’s option either (i) repair such damage or destruction
\nas soon as reasonably possible at Lessor’s expense (to the extent the required
\nmaterials are readily available through usual commercial channels) to its
\ncondition existing at the time of the damage, but not Lessee’s fixtures,
\nequipment or tenant improvements, and this Lease shall continue in full force
\nand effect, or (ii) give written notice to Lessee within thirty (30) days after
\nthe date of occurrence of such damage of Lessor’s intention to cancel and
\nterminate this Lease, in which case this Lease shall terminate as of the date of
\nthe occurrence of such damage.<\/p>\n
9.4 Damage Near End of Term.
\n ———————–<\/p>\n
(a) Subject to paragraph 9.4(b), if at any time during the last
\ntwelve (12) months of the term of this Lease there is substantial damage to the
\nPremises, Lessor may at Lessor’s option cancel and terminate this Lease as of
\nthe date of occurrence of such damage by giving written notice to Lessee of
\nLessor’s election to do so within 30 days after the date of occurrence of such
\ndamage.<\/p>\n
12<\/p>\n
(b) Notwithstanding paragraph 9.4(a), in the event that Lessee
\nhas an option to extend or renew this Lease, and the time within which said
\noption may be exercised has not yet expired, Lessee shall exercise such option,
\nif it is to be exercised at all, no later than twenty (20) days after the
\noccurrence of an Insured Loss falling within the classification of Premises
\nDamage during the last twelve (12) months of the term of this Lease. If Lessee
\nduly exercises such option during said twenty (20) day period, Lessor shall, at
\nLessor’s expense, repair such damage, but not Lessee’s fixtures, equipment or
\ntenant improvements, as soon as reasonably possible and this Lease shall
\ncontinue in full force and effect. If Lessee fails to exercise such option
\nduring said twenty (20) day period, then Lessor may at Lessor’s option terminate
\nand cancel this Lease as of the expiration of said twenty (20) day period by
\ngiving written notice to Lessee of Lessor’s election to do so within ten (10)
\ndays after the expiration of said twenty (20) day period, notwithstanding any
\nterm or provision in the grant of option to the contrary.<\/p>\n
9.5 Abatement of Rent; Lessee’s Remedies.
\n ————————————<\/p>\n
(a) In the event Lessor repairs or restores the Building or
\nPremises pursuant to the provisions of this paragraph 9, and any part of the
\nPremises are not usable (including loss of use due to loss of access or
\nessential services), the rent payable hereunder (including Lessee’s Share of
\nOperating Expense increase) for the period during which such damage, repair or
\nrestoration continues shall be abated, provided (1) the damage was not the
\nresult of the negligence of Lessee, and (2) such abatement shall only be to the
\nextent the operating and profitability of Lessee’s business as operated from the
\nPremises is adversely affected. Except for said abatement of rent, if any,
\nLessee shall have no claim against Lessor for any damage suffered by reason of
\nany such damage, destruction, repair or restoration.<\/p>\n
(b) If Lessor shall be obligated to repair or restore the
\nPremises or the Building under the provisions of this Paragraph 9 and shall not
\ncommence such repair or restoration within ninety (90) days after such
\noccurrence, or if Lessor shall not complete the restoration and repair within
\nsix (6) months after such occurrence. Lessee may at Lessee’s option cancel and
\nterminate this Lease by giving Lessor written notice of Lessee’s election to do
\nso at any time prior to the commencement or completion, respectively, of such
\nrepair or restoration. In such event this Lease shall terminate as of the date
\nof such notice.<\/p>\n
(c) Lessee agrees to cooperate with Lessor in connection with
\nany such restoration and repair, including but not limited to the approval
\nand\/or execution of plans and specifications required.<\/p>\n
9.6 Termination–Advance Payments. Upon termination of this Lease
\n —————————–
\npursuant to this paragraph 9, an equitable adjustment shall be made concerning
\nadvance rent and any advance payments made by Lessee to Lessor. Lessor shall, in
\naddition, return to Lessee so much of Lessee’s security deposit as has not
\ntheretofore been applied by Lessor.<\/p>\n
9.7 Waiver. Lessor and Lessee waive the provisions of any statute
\n ——
\nwhich relate to termination of leases when leased property is destroyed and
\nagree that such event shall be governed by the terms of this Lease.<\/p>\n
13<\/p>\n
10. Real Property Taxes.
\n ——————-<\/p>\n
10.1 Payment of Taxes. Lessor shall pay the real property tax, as
\n —————-
\ndefined in paragraph 10.3, applicable to the Office Building Project.<\/p>\n
10.2 Additional Improvements. Lessee shall not be responsible for
\n ———————–
\npaying any increase in real property tax specified in the tax assessor’s records
\nand work sheets as being caused by additional improvements placed upon the
\nOffice Building Project by other lessees or by Lessor for the exclusive
\nenjoyment of any other lessee. Lessee shall, however, pay to Lessor at the time
\nthat Operating Expenses are payable under paragraph 4.2(c) the entirety of any
\nincrease in real property tax if assessed solely by reason of additional
\nimprovements placed upon the Premises by Lessee or at Lessee’s request.<\/p>\n
10.3 Definition of “Real Property Tax.” As used herein, the term
\n ——————————–
\n“real property tax” shall include any form of real estate tax or assessment,
\ngeneral, special, ordinary or extraordinary, and any license fee, commercial
\nrental tax, improvement bond or bonds, levy or tax (other than inheritance,
\npersonal income or estate taxes) imposed on the Office Building Project or any
\nportion thereof by any authority having the direct or indirect power to tax,
\nincluding any city, county, state or federal government, or any school,
\nagriculture, sanitary, fire, street, drainage or other improvement district
\nthereof, as against any legal or equitable interest of Llessor in the Office
\nBuilding Project or in any portion thereof, as against Lessor’s right to rent or
\nother income therefrom, and as against Lessor’s business of leasing the Office
\nBuilding Project. The term “real property tax” shall also include any tax, fee,
\nlevy, assessment or charge (i) in substitution of partially or totally, any tax,
\nfee, levy, assessment or charge hereinabove included within the definition of
\n“real property tax,” or (ii) the nature of which was hereinbefore included
\nwithin the definition of “real property tax,” or (iii) which is imposed for a
\nservice or right not charged prior to June 1, 1978, or if previously charged,
\nhas been increased since June 1, 1978, or (iv) which is imposed as a result of a
\nchange in ownership, as defined by applicable local statutes for property tax
\npurposes, of the Office Building Project or which is added to a tax or charge
\nhereinbefore included within the definition of real property tax by reason of
\nsuch change of ownership, or (v) which is imposed by reason of this transaction,
\nany modifications or changes hereto, or any transfers hereof.<\/p>\n
10.4 Joint Assessment. If the improvements or property, the taxes for
\n —————-
\nwhich are to be paid separately by Lessee under paragraph 10.2 or 10.5 are not
\nseparately assessed. Lessee’s portion of that tax shall be equitably determined
\nby Lessor from the respective valuations assigned in the assessor’s work sheets
\nor such other information (which may include the cost of construction) as may be
\nreasonably available. Lessor’s reasonable determination thereof, in good faith,
\nshall be conclusive.<\/p>\n
10.5 Personal Property Taxes.
\n ———————–<\/p>\n
(a) Lessee shall pay prior to delinquency all taxes assessed
\nagainst and levied upon trade fixtures, furnishings, equipment and all other
\npersonal property of Lessee contained in the Premises or elsewhere.<\/p>\n
14<\/p>\n
(b) If any of Lessee’s said personal property shall be assessed
\nwith Lessor’s real property, Lessee shall pay to Lessor the taxes attributable
\nto Lessee within ten (10) days after receipt of a written statement setting
\nforth the taxes applicable to Lessee’s property.<\/p>\n
11. Utilities.
\n ———<\/p>\n
11.1 Services Provided by Lessor. Lessor shall provide heating,
\n —————————
\nventilation, air conditioning, and janitorial service as reasonably required,
\nreasonable amounts of electricity for normal lighting and office machines, water
\nfor reasonable and normal drinking and lavatory use, and replacement light bulbs
\nand\/or fluorescent tubes and ballasts for standard overhead fixtures.<\/p>\n
11.2 Deleted.<\/p>\n
11.3 Hours of Service. Said services and utilities shall be
\n —————-
\nprovided during generally accepted business days and hours or such other days or
\nhours as may hereafter be set forth. Utilities and services required at other
\ntimes shall be subject to advance request and reimbursement by Lessee to Lessor
\nof the cost thereof. Lessor shall provide utility services to Lessee’s Premises
\non Saturday mornings.<\/p>\n
11.4 Excess Usage by Lessee. Lessee shall not make connection
\n ———————-
\nto the utilities except by or through existing outlets and shall not install or
\nuse machinery or equipment in or about the Premises that uses excess water,
\nlighting or power, or suffer or permit any act that causes extra burden upon the
\nutilities or services, including but not limited to security services, over
\nstandard office usage for the Office Building Project. Lessor shall require
\nLessee to reimburse Lessor for any excess expenses or costs that may arise out
\nof a breach of this subparagraph by Lessee. Lessor may, in its sole discretion,
\ninstall at Lessee’s expense supplemental equipment and\/or separate metering
\napplicable to Lessee’s excess usage or loading.<\/p>\n
11.5 Interruptions. There shall be no abatement of rent and
\n ————-
\nLessor shall not be liable in any respect whatsoever for the inadequacy,
\nstoppage, interruption or discontinuance of any utility or service due to riot,
\nstrike, labor dispute, breakdown, accident, repair or other cause beyond
\nLessor’s reasonable control or in cooperation with governmental request or
\ndirections.<\/p>\n
12. Assignment and Subletting.
\n ————————-<\/p>\n
12.1 Lessor’s Consent Required. Lessee shall not voluntarily
\n ————————-
\nor by operation of law assign, transfer, mortgage, sublet, or otherwise
\ntransfer, encumber all or any part of Lessee’s interest in the Lease or in the
\nPremises, without Lessor’s prior written consent, which Lessor shall not
\nunreasonably withhold. Lessor shall respond to Lessee’s request for consent
\nhereunder in a timely manner and any attempted assignment, transfer, mortgage,
\nencumbrance or subletting without such consent shall be void, and shall
\nconstitute a material default and breach of this Lease without the need
\n[illegible copy] notice to Lessee under paragraph 13.1. “Transfer” within the
\nmeaning of this paragraph 12 shall include the transfer or transfers
\naggregating; (a [illegible copy] Lessee is a corporation, more than twenty-five
\npercent (25%) of the profit and loss participation in such partnership.<\/p>\n
15<\/p>\n
12.2 Lessee Affiliate. Notwithstanding the provisions of
\n —————-
\nparagraph 12.2 hereof, Lessee may assign or sublet the Premises, or any portion
\n[illegible copy] without Lessor’s consent to any corporation which controls, is
\ncontrolled by or is under common control with Lessee, or to any corporation
\nresulting from the merger or consolidation with Lessee, or to any person or
\nentity which acquires all the assets of Lessee as a going concern of the
\nbusiness that is being conducted on the Premises, all of which are referred to
\nas “Lessee Affiliate”; provided that before such assignment shall be effective
\n(a) said assignee shall assume, in full, the obligations of Lessee under this
\nLease and (b) Lessor shall be given written notice of such assignment and
\nassumption. Any such assignment shall not, in any way, affect or limit the
\nliability of Lessee under the terms of this Lease even if after such assignment
\nor subletting the terms of this Lease are materially changed or altered without
\nthe consent of Lessee, the consent of whom shall not be necessary.<\/p>\n
12.3 Terms and Conditions Applicable to Assignment and
\n ————————————————-
\n Subletting.
\n ———- <\/p>\n
(a) Regardless of Lessor’s consent, no assignment or
\nsubletting shall release Lessee of Lessee’s obligations hereunder or alter the
\nprimary liability of Lessee to pay the rent and other sums due Lessor hereunder
\nincluding Lessee’s Share of Operating Expense increase, and to perform
\n[illegible copy] other obligations to be performed by Lessee hereunder.<\/p>\n
(b) Lessor may accept rent from any person other than
\nLessee pending approval or disapproval of such assignment.<\/p>\n
(c) Neither a delay in the approval or disapproval of such
\nassignment or subletting, nor the acceptance of rent, shall constitute a waiver
\nof estoppel of Lessor’s right to exercise its remedies for the breach of any of
\nthe terms or conditions of this paragraph 12 or this Lease.<\/p>\n
(d) If Lessee’s obligations under this Lease have been
\nguaranteed by third parties, then an assignment or sublease, and Lessor’s
\nconsent thereto shall not be effective unless said guarantors give their written
\nconsent to such sublease and the terms thereof.<\/p>\n
(e) The consent by Lessor to any assignment or subletting
\nshall not constitute a consent to any subsequent assignment or subletting by
\n[illegible copy] or to any subsequent or successive assignment or subletting by
\nthe sublessee. However, Lessor may consent to subsequent sublettings and
\nassignments of the sublease or any amendments or modifications thereto without
\nnotifying Lessee or anyone else liable on the Lease or sublease and without
\nobtaining their consent and such action shall not relieve such persons from
\nliability under this Lease or said sublease; however, such persons shall not be
\nresponsible to the extent any such amendment or modification enlarges or
\nincreases the obligations of the Lessee or sublessee under this Lease [illegible
\ncopy] such sublease.<\/p>\n
(f) In the event of any default under this Lease, Lessor
\nmay proceed directly against Lessee, any guarantors or any one else responsible
\nfor the performance <\/p>\n
16<\/p>\n
of this Lease, including the sublessee, without first exhausting Lessor’s
\nremedies against any other person or entity responsible therefor to Lessor, or
\nany security held by Lessor or Lessee.<\/p>\n
(g) Lessor’s written consent to any assignment or subletting of
\nthe Premises by Lessee shall not constitute an acknowledgement that no delay
\nthen exists under this Lease of the obligations to be performed by Lessee nor
\nshall such consent by deemed a waiver of any then existing default except as may
\nbe otherwise stated by Lessor at the time.<\/p>\n
(h) The discovery of the fact that any financial statement
\nrelied upon by Lessor in giving its consent to an assignment or subletting will
\nmaterially raise shall, at Lessor’s election, render Lessor’s said consent null
\nand void.<\/p>\n
12.4 Additional Terms and Conditions Applicable to Subletting.
\n ——————————————————–
\nRegardless of Lessor’s consent, the following terms and conditions shall apply
\nto any subletting by Lessee of all or any part of the Premises and shall be
\ndeemed included in all subleases under this Lease whether or not expressly
\nincorporated therein:<\/p>\n
(a) Lessee hereby assigns and transfers to Lessor all of
\nLessee’s interest in all rentals and income arising from any sublease heretofore
\n[illegible copy] hereafter made by Lessee, and Lessor may collect such rent and
\nincome and apply same toward Lessee’s obligations under this Lease; provided
\nhowever, that until a default shall occur in the performance of Lessee’s
\nobligations under this Lease, Lessee may receive, collect and enjoy the rent
\naccruing under sublease. Lessor shall not, by reason of this or any other
\nassignment of such sublease to Lessor nor by reason of the collection of the
\nrents from a sublessee, be deemed liable to the sublessee for any failure of
\nLessee to perform and comply with any of Lessee’s obligations to such sublessee
\nunder such sublease. Lessee hereby irrevocably authorizes and directs any such
\nsublessee, upon receipt of a written notice from Lessor stating that a default
\nexists in the performance of Lessee’s obligations under this Lease, to pay to
\nLessor the rents due and to become due under the sublease. Lessee agrees that
\nsuch sublessee shall have the right to rely upon any such statement and request
\nfrom Lessor, and that such sublessee shall pay such rents to Lessor without any
\nobligation or right to inquire as to whether such default exists and
\nnotwithstanding any notice from or claim from Lessee to the contrary. Lessee
\nshall have no right or claim against and sublessee or Lessor for any such rents
\nso paid by said sublessee to Lessor.<\/p>\n
(b) No sublease entered into by Lessee shall be effective unless
\nand until it has been approved in writing by Lessor. In entering into any
\nsublease, Lessee shall use only such form of sublessee as is satisfactory to
\nLessor, and once approved by Lessor, such sublease shall not be changed or
\nmodified without Lessor’s prior written consent. Any sublease shall, by reason
\nof entering into a sublease under this Lease, be deemed, for the benefit of
\nLessor to have assumed and agreed to conform and comply with each and every
\nobligation herein to be performed by Lessee other than such obligations as are
\ncontrary to or inconsistent with provisions contained in a sublease to which
\nLessor has expressly consented in writing.<\/p>\n
(c) In the event Lessee shall default in the performance of its
\nobligations under this Lease, Lessor at its option and without any obligation to
\ndo so, may require any sublessee to attorn to Lessor, in which event Lessor
\nshall undertake the obligations of Lessee under such sublease from the time of
\nthe exercise of said option to the termination of <\/p>\n
17<\/p>\n
such sublease; provided, however, Lessor shall not be liable for any prepaid
\nrents or security deposit paid by such sublessee to Lessee or to any other prior
\ndefaults of Lessee under such sublease.<\/p>\n
(d) No sublessee shall further assign or sublet all or any part
\nof the Premises without Lessor’s prior written consent.<\/p>\n
(e) With respect to any subletting to which Lessor has
\nconsented, Lessor agrees to deliver a copy of any notice of default by Lessee to
\nthe sublease. Such sublessee shall have the right to cure a default of Lessee
\nwithin three (3) days after service of said notice of default upon such
\nsublessee, and the sublessee shall have a right of reimbursement and offset from
\nand against Lessee for any such defaults cured by the sublessee.<\/p>\n
12.5 Lessor’s Expense. In the event Lessee shall assign or sublet the
\n —————-
\nPremises or request the consent of Lessor to any assignment or subletting or if
\nLessee shall request the consent of Lessor for any act Lessee proposes to do
\nthen Lessee shall pay Lessor’s reasonable costs and expenses incurred in
\nconnection therewith, including attorney’s; architects’, engineers’ or other
\nconsultants’ fees. Limit to $500.00 per sublet or assignment request.<\/p>\n
12.6 Conditions to Consent. Lessor reserves the right to condition
\n ———————
\nany approval to assign or sublet upon Lessor’s determination that (a) the
\nproposed assignee or sublessee shall conduct a business on the Premises of a
\nquality substantially equal to that of Lessee and consistent with the general
\ncharacter of the other occupants of the Office Building Project and no in
\nviolation of any exclusives or rights then held by other tenants, and (b) the
\nproposed assignee or sublessee be at least as financially responsible as Lessee
\nwas expected to be all time of the execution of this Lease or of such
\nassignments of subletting, whichever is greater.<\/p>\n
13. Default; Remedies.
\n —————–<\/p>\n
13.1 Default. The occurrence of any one or more of the following
\n ——-
\nevents shall constitute a material default of this Lease by Lessee:<\/p>\n
(a) The vacation or abandonment of the Premises by Lessee.
\nVacation of the Premises shall include the failure to occupy the Premises for a
\ncontinuous period of sixty (60) days or more, whether or not the rent is paid.<\/p>\n
(b) The breach by Lessee of any of the covenants, conditions or
\nprovisions of paragraph 7.3(a), (b) or (e) (alterations), 12.3 (assignment or
\nsubletting), 13.1(a) (vacation or abandonment), 13.1(e) (insolvency), 13.1(f)
\n(false statement), 16(a) (estoppel certificate), 30(b) (subordination), 33
\n(auctions), or 41.1 (easements), all of which are hereby deemed to be material,
\nnon-curable defaults without the necessity of any notice by Lessor to Lessee
\nhereof.<\/p>\n
(c) The failure by Lessee to make any payment of rent or any
\nother payment required to be made by Lessee hereunder, as and when due where
\nsuch failure shall continue for a period of three (3) days after written notice
\nthereof from Lessor to Lessee. In the event that Lessor serves Lessee with a
\nNotice to Pay Rent or Quit pursuant to applicable <\/p>\n
18<\/p>\n
Unlawful Detainer statutes such Notice to Pay Rent or Quit shall also constitute
\nthe notice required by this subparagraph.<\/p>\n
(d) The failure by Lessee to observe or perform any of the
\ncovenants, conditions or provisions of this Lease to be observed or performed by
\nLessee other than those referenced in subparagraphs (b) and (c), above, where
\nsuch failure shall continue for a period of thirty (30) days after written
\nnotice thereof from Lessor to Lease; provided, however, that if the nature of
\nLessee’s noncompliance is such that more than thirty (30) days are reasonably
\nrequired for its cure, then Lessee shall not be deemed to be in default if
\nLessee commenced such cure within said thirty (30) day period and thereafter
\ndiligently pursues such cure to completion. To the extent permitted by law, such
\nthirty (30) day notice shall constitute the sole and exclusive notice required
\nto be given to Lessee under applicable Unlawful Detainer statutes.<\/p>\n
(e) (i) The making by Lessee of any general arrangement or
\ngeneral assignment for the benefit of creditors, (ii) Lessee becoming a “debtor”
\nas defined in __ U.S.C. (S)101 or any successor statute thereof unless, in the
\ncase of a petition filed against Lessee. The same is dismissed within sixty (60)
\ndays; (iii) the appointment of a trustee or receiver to take possession of
\nsubstantially all of Lease’s assets located at the Premises or of Lessee’s
\ninterest in this Lease, where possession is not restored to Lessee’s interest in
\nthis Lease, where such seizure is not discharged within thirty (30) days. In the
\nevent that any provision of this paragraph 13.1(e) is contrary to any applicable
\nlaw, such provision shall be of no force or effect.<\/p>\n
(f) The discovery by Lessor that any financial statement given
\nto Lessor by Lessee, or its successor in interest or by any guarantor of
\nLessee’s obligation hereunder, was materially false.<\/p>\n
13.2 Remedies. In the event of any material default of breach of this
\n ——–
\nLease by Lessee, Lessor may at any time thereafter, with or without notice or
\ndemand and without limiting Lessor in the exercise of any right or remedy which
\nLessor may have by reason of such default:<\/p>\n
(a) Terminate Lessee’s right to possession of the Premises by
\nany lawful means, in which case this Lease and the term hereof shall terminate
\nand Lessee shall immediately surrender possession of the Premises to Lessor. In
\nsuch event Lessor shall be entitled to recover from Lessee all damages incurred
\nby Lessor by reason of Lessee’s default including, but not limited to, the cost
\nof recovering possession of the Premises; expenses of reletting, including
\nnecessary renovation and alteration of the Premises, reasonable attorney’s fees,
\nand any real estate commission actually paid; the worth at the time of award by
\nthe court having jurisdiction thereof of the amount by which the unpaid rent for
\nthe balance of the term after the time of such award exceeds the amount of such
\nrental loss for the same period that Lessee proves could be reasonably avoided;
\nthat portion of the leasing commission paid by Lessor pursuant to paragraph 15
\napplicable to the unexpired term of this Lease.<\/p>\n
(b) Maintain Lessee’s right to possession in which case this
\nLease under the laws or judicial decisions of the state wherein the Premises are
\nlocated. Unpaid <\/p>\n
19<\/p>\n
installments of rent and other unpaid monetary obligations of Lessee under the
\nterms of this Lease shall bear interest from the date due at the maximum rate
\nthen allowable by law.<\/p>\n
13.3 Default by Lessor. Lessor shall not be in default unless Lessor
\n —————–
\nfails to perform obligations required of Lessor within a reasonable time, but in
\nno event later than thirty (30) days after written notice by Lessee to Lessor
\nand to the holder of any first mortgage or deed or trust covering the Premises
\nwhose name and address shall have theretofore been furnished to Lessee in
\nwriting, specifying wherein Lessor has failed to perform such obligation;
\nprovided, however, that if the nature of Lessor’s obligation is such that more
\nthan thirty (30) days are required for performance then Lessor shall not be in
\ndefault if Lessor commences performance within such 30-day period and thereafter
\ndiligently pursues the same to completion.<\/p>\n
13.4 Late Charges. Lessee hereby acknowledges that late payment by
\n ————
\nLessee to Lessor of Base Rent or other sums due hereunder will cause Lessor to
\nincur costs not contemplated by this Lease, the exact amount at which will be
\nextremely difficult to ascertain. Such costs include, but are not limited to,
\nprocessing and accounting charges, and late charges which may be imposed on
\nLessor by the terms of any mortgage or trust deed covering the Office Building
\nProject. Accordingly, if any installment of Base Rent, or any other sum due from
\nLessee shall not be received by Lessor or Lessor’s designee within ten (10) days
\nafter such amount shall be due, then, without any requirement for notice to
\nLessee, Lessee shall pay to Lessor a late charge equal to 6% of such overdue
\namount. The parties hereby agree that such late charge by Lessor shall in no
\nevent constitute a waiver of Lessee’s default with respect to such overdue
\namount, nor prevent Lessor from exercising any of the other rights and remedies
\ngranted hereunder.<\/p>\n
14. Condemnation. If the Premises or any portion thereof or the Office
\n ————
\nBuilding Project are taken under the power of eminent domain, or sold under the
\nthreat of the exercise of said power (all of which are herein called
\n“condemnation”), this Lease shall terminate as to the part so taken as of the
\ndate the condemning authority takes title or possession, whichever first occurs;
\nprovided that if so much of the Premises or the Office Building Project are
\ntaken by such condemnation as would substantially and adversely affect the
\noperation and profitability of Lessee’s business conducted from the Premises.
\nLessee shall have the option, to be exercised only in writing within thirty (30)
\ndays after Lessor shall have given Lessee written notice of such taking (or in
\nthe absence of such notice, within thirty (30) days after the condemning
\nauthority shall have taken possession), to terminate this Lease as of the date
\nthe condemning authority takes such possession. If Lessee does not terminate
\nthis Lease in accordance with the foregoing, this Lease shall remain in full
\nforce and effect as to the portion of the Premises remaining, except that the
\nrent shall be reduced in the proportion that the floor area of the Premises
\ntaken bears to the total floor area of the Premises. Common Areas taken shall be
\nexcluded from the Common Areas usable by Lessee and no reduction of rent shall
\noccur with respect thereto or by reason thereof. Lessor shall have the option in
\nits sole discretion to terminate this Lease as of the taking of possession by
\nthe condemning authority, by giving written notice to Lessee of such election
\nwithin thirty (30) days after receipt of notice of a taking by condemnation of
\nany part of the Premises or the Office Building Project. Any award for the
\ntaking of all or any part of the Premises or the Office Building Project under
\nthe power of eminent domain or any payment made under threat of the exercise of
\nsuch power shall be the <\/p>\n
20<\/p>\n
property of Lessor, whether such award shall be made as compensation for
\ndiminution in value of the leasehold or for the taking of the fee, or as
\nseverance damages; provided, however, that Lessee shall be entitled to any
\nseparate award for loss of or damage to Lessee’s trade fixtures, removable
\npersonal property and unamortized tenant improvements that have been paid for by
\nLessee. For that purpose the cost of such improvements shall be amortized over
\nthe original term of this Lease excluding any options. In the event that this
\nLease is not terminated by reason of such condemnation, Lessor shall to the
\nextent of severance damages received by Lessor in connection with such
\ncondemning authority, Lessee shall pay any amount in excess of such severance
\ndamages required to complete such repair.<\/p>\n
15. Broker’s Fee.
\n ————<\/p>\n
(a) The brokers involved in this transaction are
\n__________________________________________ as “listing broker” and Cornish & Carey Commercial as “cooperating broker,” licensed real estate broker(s). A
\n“cooperating broker” is defined as any broker other than the listing broker
\nentitled to a share of any commission arising under this Lease. Upon execution
\nof this Lease by both parties, Lessor shall pay to said brokers jointly, or in
\nsuch separate shares as they may mutually designate in writing, a fee as set
\nforth in a separate agreement between Lessor and said broker(s), or in the event
\nthere is not separate agreement between Lessor and said broker(s), per
\nagreement, for brokerage services rendered by said broker(s) to Lessor in this
\ntransaction. Cornish & Carey Commercial shall receive a full commission per
\nCornish & Carey Commercial’s Standard Commission Schedule.<\/p>\n
(b) Lessor further agrees that (i) if Lessee exercises any Option, as
\ndefined in paragraph 39.1 of this Lease, which is granted to Lessee under this
\nLease, or any subsequently granted option which is substantially similar to an
\nOption granted to Lessee under this Lease, or (iii) if Lessee remains in
\npossession of the Premises after the expiration of the term of this Lease after
\nhaving failed to exercise an Option, or (iv) if said broker(s) are the procuring
\ncause of any other lease or sale entered into between the parties pertaining to
\nthe Premises and\/or any adjacent properly in which Lessor has an interest, or
\n(v) if the Base Rent is increased, whether by agreement or operation of an
\nescalation clause contained herein, then as to any of said transactions or rent
\nincrease, Lessor shall pay said broker(s) a fee in accordance with the schedule
\nof said broker(s) in effect at the time of execution of this Lease. Said fee
\nshall be paid at the time such increased rental is determined.<\/p>\n
(c) Lessor agrees to pay said fee not only on behalf of Lessor but
\nalso on behalf of any person, corporation, association, or other entity having
\nan ownership interest in said real property or any part thereof, which such fee
\nis due hereunder. Any transferee of Lessor’s interest in this Lease whether such
\ntransfer is by agreement or by operation of law, shall be deemed to have assumed
\nLessor’s obligation under this paragraph 15. Each listing and cooperating broker
\nshall be a third party beneficiary of the provisions of this paragraph 15 to the
\nextent of their interest in any commission arising under this Lease and may
\nenforce that right directly against Lessor; provided, however, that all brokers
\nhaving a right to any part of such total commission shall be a necessary party
\nto any suit with respect thereto.<\/p>\n
(d) Lessee and Lessor each represent and warrant to the other that
\nneither has had any dealing with any person, firm, broker or finder (other than
\nthe person(s), <\/p>\n
21<\/p>\n
if any, whose names are set forth in paragraph 15(a), above) in connection with
\nthe negotiation of this Lease and\/or the consummation of the transaction
\ncontemplated hereby, and no other broker or other person, firm or entity is
\nentitled to any commission or finder’s fee in connection with said transaction
\nand Lessee and Lessor do each hereby indemnify and hold the other harmless from
\nand against any costs, expenses, attorney fees or liability for compensation or
\ncharges which may be claimed by any such unnamed broker, finder or other similar
\nparty by reason of any dealings or actions of the indemnifying party.<\/p>\n
16. Estoppel Certificate.
\n ——————–<\/p>\n
(a) Each party (as “responding party”) shall at any time upon not
\nless than ten (10) days’ prior written notice from the other party (“requesting
\nparty”) execute, acknowledge and deliver to the requesting party a statement in
\nwriting (i) certifying that this Lease is unmodified and in full force and
\neffect (or, if modified, stating the nature of such modification and certifying
\nthat this Lease, as so modified, is in full force and effect and the date to
\nwhich the rent and other charges are paid in advance, if any, and (ii)
\nacknowledging that there are not, to the responding party’s knowledge, any
\nuncured defaults on the part of the requesting party, or specifying such
\ndefaults if any are claimed. Any such statement may be conclusively relied upon
\nby any prospective purchaser or encumbrances of the Office Building Project or
\nof the business of Lessee.<\/p>\n
(b) At the requesting party’s option, the failure to deliver such
\nstatement within such time shall be a material default of this Lease by the
\nparty that (i) this Lease is in full force and effect, without modification
\nexcept as may be represented by the requesting party, (ii) there are no uncured
\ndefaults in the requesting party’s performance, and (iii) if Lessor is the
\nrequesting party, not more than one month’s rent has been paid in advance.<\/p>\n
(c) If Lessor desires to finance, refinance, or sell the Office
\nBuilding Project, or any part thereof, Lessee hereby agrees to deliver to any
\nlender or purchase designated by Lessor such financial statements of Lessee as
\nmay be reasonably required by such lender or purchaser. Such statements shall
\ninclude the past three (3) years’ financial statements of Lessee. All such
\nfinancial statements shall be received by Lessor and such lender or purchaser in
\nconfidence and shall be used only for the purposes herein set forth.<\/p>\n
17. Lessor’s Liability. The term “Lessor” as used herein shall mean only
\n ——————
\nthe owner or owners, at the time in question, of the ____ title or a lessee’s
\ninterest in a ground lease of the Office Building Project, and except as
\nexpressly provided in paragraph 15, in the event of any transfer of such little
\nor interest, Lessor herein named (and in case of any subsequent transfers then
\nthe grantor) shall be relieved from and after the date of such transfer of all
\nliability as respects Lessor’s obligations thereafter to be performed, provided
\nthat any funds in the hands of Lessor or the then grantor at the time of such
\ntransfer, in which Lessee has an interest, shall be delivered to the grantee.
\nThe obligations contained in this Lease to be performed by Lessor shall, subject
\nas aforesaid, be binding on Lessor’s successors and assigns, only during their
\nrespective periods of ownership.<\/p>\n
22<\/p>\n
18. Severability. The invalidity of any provision of this Lease as
\n ————
\ndetermined by a court of competent jurisdiction shall in no way affect the
\nvalidity of any other provision hereof.<\/p>\n
19. Interest on Past-due Obligations. Except as expressly herein provided,
\n ——————————–
\nany amount due to Lessor not paid when due shall bear interest at the maximum
\nrate then allowable by law or judgments from the date due. Payment of such
\ninterest shall not excuse or cure any default by Lessee under this Lease;
\nprovided, however, that interest shall not be payable on late charges incurred
\nby Lessee nor on any amounts upon which late charges are paid by Lessee.<\/p>\n
20. Time of Essence. Time is of the essence with respect to the
\n —————
\nobligations to be performed under this Lease.<\/p>\n
21. Additional Rent. All monetary obligations of Lessee to Lessor under
\n —————
\nthe terms of this Lease and any other expenses payable by Lessee hereunder shall
\nbe deemed to be rent.<\/p>\n
22. Incorporation of Prior Agreements; Amendments. This Lease contains all
\n ———————————————
\nagreements of the parties with respect to any matter mentioned herein. No prior
\nor contemporaneous agreement or understanding pertaining to any such matter
\nshall be effective. This Lease may be modified in writing only, signed by the
\nparties in interest at the time of the modification. Except as otherwise stated
\nin this Lease, Lessee hereby acknowledges that neither the real estate broker
\nlisted in paragraph 15 hereof nor any cooperating broker on this transaction nor
\nthe Lessor or any employee or agents of any of said persons has made any oral or
\nwritten warranties or representations to Lessee relative to the condition or use
\nby Lessee of the Premises or the Officer Building Project and Lessee
\nacknowledges that Lessee assume all responsibility regarding the Occupational
\nSafety Health Act, the legal use and adaptability of the Premises and the
\ncompliance thereof with all applicable laws and regulations in effect during the
\nterm of this Lease.<\/p>\n
23. Notice. Any notice required or permitted to be given hereunder shall
\n ——
\nbe in writing and may be given by personal delivery or by certified or
\nregistered mail, and shall be deemed sufficiently given if delivered or
\naddressed to Lessee or to Lessor at the address noted below or adjacent to the
\nsignature of the respective parties, as the case may be. Mailed notices shall be
\ndeemed given upon actual receipt at the address required, or forty-eight hours
\nfollowing deposit in the mail, postage prepaid, whichever first occurs. Either
\nparty may be notice to the other specify a different address for notice purposes
\nexcept that upon Lessee’s taking possession of the Premises, the Premises shall
\nconstitute Lessee’s address for notice purposes. A copy of all notices required
\nor permitted to be given to Lessor hereunder shall be concurrently transmitted
\nto such party or parties at such addresses as Lessor may from time to time
\nhereafter designate by notice to Lessee.<\/p>\n
24. Waivers. No waiver by Lessor or any provision hereof shall be deemed
\n ——-
\na waiver of any other provision hereof or of any subsequent breach by Lessee of
\nthe same or any other provision. Lessor’s consent to, or approval of, any act
\nshall not be deemed to render unnecessary the obtaining of Lessor’s consent to
\nor approval of any subsequent act by Lessee. The acceptance of rent hereunder by
\nLessor shall not be a waiver of any preceding breach by <\/p>\n
23<\/p>\n
Lessee of any provision hereof, other than the failure of Lessee to pay the
\nparticular rent so accepted, regardless of Lessor’s knowledge of such preceding
\nbreach at the time of acceptance of such rent.<\/p>\n
25. Recording. Either Lessor or Lessee shall, upon request of the other,
\n ———
\nexecute, acknowledge and deliver to the other a “short form” memorandum of this
\nLease for recording purposes.<\/p>\n
26. Holding Over. If Lessee, with Lessor’s consent, remains in possession
\n ————
\nof the Premises or any part thereof after the expiration of the term hereof such
\noccupancy shall be a tenancy from month to month upon all the provisions of this
\nLease pertaining to the obligations of Lessee, except that the rent payable
\nshall be one hundred twenty five (125%) of the rent payable immediately
\npreceding the termination date of this lease, and all Options, if any, granted
\nunder the terms of this Lease shall be deemed terminated and be of no further
\neffect during said-month to month tenancy.<\/p>\n
27. Cumulative Remedies. No remedy or election hereunder shall be deemed
\n ——————-
\nexclusive but shall, wherever possible, be cumulative with all other remedies at
\nlaw or in equity.<\/p>\n
28. Covenants and Conditions. Each provision of this Lease performance by
\n ————————
\nLessee shall be deemed both a covenant and a condition.<\/p>\n
29. Binding Effect; Choice of Law. Subject to any provisions hereof
\n —————————–
\nrestricting assignment or subletting by Lessee and subject to the provisions of
\nparagraph 17, this Lease shall bind the parties, their personal representatives,
\nsuccessors and assigns. This Lease shall be governed by the laws of the State
\nwhere the Office Building Project is located and any litigation concerning this
\nLease between the parties hereto shall be initiated in the country in which the
\nOffice Building Project is located.<\/p>\n
30. Subordination.
\n ————-<\/p>\n
(a) This Lease, and any Option or right of first refusal granted
\nhereby, at Lessor’s option, shall be subordinate to any ground lease, mortgage,
\ndeed of trust, or any other hypothecation or security now or hereafter placed
\nupon the Office Building Project and to any and all advances made on the
\nsecurity thereof and to all renewals, modifications, consolidations,
\nreplacements and extensions thereof. Notwithstanding such subordination,
\nLessee’s right to quiet possession of the Premises shall not be disturbed if
\nLessee is not in default and so long as Lessee shall pay the rent and observe
\nand perform all of the provisions of this Lease, unless this Lease is otherwise
\nterminated pursuant to its terms. If any mortgages, trustee or ground lessor
\nshall elect to have this Lease and any Options granted hereby prior to the lien
\nof its mortgage, deed of trust or ground lease, and shall give written notice
\nthereof to Lessee, this Lease and such Options shall be deemed prior to such
\nmortgage, deed of trust, or ground lease, whether this Lease or such Options are
\ndated prior to subsequent to the date of said mortgage, deed of trust or ground
\nlease or the date of recording thereof.<\/p>\n
(b) Lessee agrees to execute any documents required to effectuate an
\nattornment, a subordination, or to make this Lease or any Option granted herein
\nprior to the lien of any mortgage, deed of trust or ground lease, as the case
\nmay be. Lessee’s <\/p>\n
24<\/p>\n
failure to execute such documents within ten (10) days after written demand
\nshall constitute a material default by Lessee hereunder without further notice
\nto Lessee or, at Lessor’s option, Lessor shall execute such documents on behalf
\nof Lessee’s name, place and stead, to execute such documents in accordance with
\nthis paragraph 30(b).<\/p>\n
31. Attorneys’ Fees.
\n —————<\/p>\n
31.1 If either party or the broker(s) named herein bring an action to
\nenforce the terms hereof or declare rights hereunder, the prevailing party in
\nany such action, trial or appeal thereon, shall be entitled to his reasonable
\nattorney’s fees to be paid by the losing party as fixed by the court in the same
\nor a separate suit, and whether or not such action is pursued to decision or
\njudgment. The provisions of this paragraph shall inure to the benefit of the
\nbroker named herein who seeks to enforce a right hereunder.<\/p>\n
31.2 The attorney’s fee award shall not be computed in accordance
\nwith any court fee schedule, but shall be such as to fully reimburse all
\nattorneys’ fees reasonably incurred in good faith.<\/p>\n
31.3 Lessor shall be entitled to reasonable attorneys’ fees and all
\nother costs and expenses incurred in the preparation and service of notice of
\ndefault and consultations in connection therewith, whether or not a legal
\ntransaction is subsequently commenced in connection with such default.<\/p>\n
32. Lessor’s Access.
\n —————<\/p>\n
32.1 Lessor and Lessor’s agents shall have the right to enter the
\nPremises at reasonable times for the purpose of inspecting the same, performing
\nany services required of Lessor, showing the same to prospective purchasers,
\nlenders, or lessees, taking such safety measures, erecting such scaffolding or
\nother necessary structures, making such alterations, repairs, improvements or
\nadditions to the Premises or to the Office Building Project as Lessor may
\nreasonably deem necessary or desirable and the erecting, using and maintaining
\nof utilities, services, pipes and conduits through the Premises and\/or other
\npremises as long as there is no material adverse effect to Lessee’s use of the
\nPremises Lessor may at any time place on or about the Premises or the Building
\nany ordinary “For Sale” signs and Lessor may at any time during the last 90 days
\nof the terms hereof place on or about the Premises any ordinary “For Lease”
\nsigns.<\/p>\n
32.2 All activities of Lessor pursuant to this paragraph shall be
\nwithout abatement of rent, nor shall Lessor have any liability to Lessee for the
\nsame.<\/p>\n
32.3 Lessor shall have the right to retain keys to the Premises and
\nto unlock all doors in or upon the Premises other than to files, vaults and safe
\nand in the case of emergency to enter the Premises by any reasonably appropriate
\nmeans, and any such entry shall not be deemed a forceable unlawful entry or
\ndetainer of the Premises or an eviction. Lessee waives any charges or injuries
\nor interference with Lessee’s property or business in connection therewith.<\/p>\n
25<\/p>\n
33. Auctions. Lessee shall not conduct, nor permit to be conducted,
\n ——–
\neither voluntarily or involuntarily, any auction upon the Premises or the Common
\nAreas without first having obtained Lessor’s prior written consent.
\nNotwithstanding anything to the contrary in this Lease, Lessor shall not be
\nobligated to exercise any standard or reasonableness in determining whether to
\ngrant such consent. The holding of any auction on the Premises or Common Areas
\nin violation of this paragraph shall constitute a material default of this
\nLease.<\/p>\n
34. Signs. Lessee shall not place any sign upon the Premises or the
\n —–
\nOffice Building Project without Lessor’s prior written consent. Under no
\ncircumstances shall Lessee place a sign on any roof of the Office Building
\nProject. See Addendum #55.<\/p>\n
35. Merger. The voluntary or other surrender of this Lease by Lessee, or
\n ——
\na mutual cancellation thereof, or a termination by Lessor, shall not work
\nmerger, and shall, at the option of Lessor, terminate all or any existing
\nsubtenancies or may, at the option of Lessor, operate as an assignment to Lessee
\nof any or all of such subtenancies.<\/p>\n
36. Consents. Except for paragraphs 33 (auctions) and 34 (signs) hereof,
\n ——–
\nwherever in this Lease the consent of one party is required to an act of other
\nparty such consent shall not be unreasonably withheld or delayed.<\/p>\n
37. Guarantor. In the event that there is a guarantor of this Lease, said
\n ———
\nguarantor shall have the same obligations as Lessee under this Lease.<\/p>\n
38. Quits Possession. Upon Lease paying the rent for the Premises and
\n —————-
\nobserving and performing all of the covenants, conditions and provisions
\nLessee’s part to be observed and performed hereunder. Lessee shall have quiet
\npossession of the Premises for the entire term hereof subject to __ of the
\nprovisions of this Lease. The individuals executing this Lease on behalf of
\nLessor represent and warrant to Lessee that they are fully authorized and
\nlegally capable of executing this Lease on behalf of Lessor and that such
\nexecution is binding upon all parties holding an ownership interest in the
\nOffice Building Project.<\/p>\n
39. Options. See Addendum #52.
\n ——-<\/p>\n
39.1 Definition. As used in this paragraph the word “Option” has the
\n ———-
\nfollowing meaning: (1) the right or option to extend the term of this Lease to
\nrenew this Lease or to extend or renew any lease that Lessee has on other
\nproperty of Lessor; (2) the option of right of first refusal to lease the
\npremises or the right of first offer to lease other space within the Office
\nBuilding Project or other property of Lessor; (3) the right or option to
\npurchase the Premises or the Office Building Project, or the right of first
\nrefusal to purchase the Premises or the Office Building Project or the right of
\nfirst offer to purchase the Premises or the Office Building Project, or the
\nright or option to purchase other property of Lessor, or the right of first
\nrefusal to purchase other property of Lessor or the right of first offer to
\npurchase other property of Lessor.<\/p>\n
39.2 Options Personal. Each Option granted to Lessee in this Lease
\n —————-
\nis personal to the original Lessee and may be exercised only by the original
\nLessee while occupying the Premises who does so without the intent of thereafter
\nassigning this Lease or subletting the Premises or any portfolio thereof, and
\nmay not be exercised or be assigned, <\/p>\n
26<\/p>\n
voluntary or involuntarily, by or to any person or entity other than Lessee;
\nprovided, however, that an Option may be exercised by or assigned to any Lessee
\nAffiliate as defined in paragraph 12.2 of this Lease. The Options, if any,
\nherein granted to Lessee are not assignable separate and apart from this Lease,
\nnor may any Option be separated from this Lease in any manner, either by
\nreservation or otherwise.<\/p>\n
39.3 Multiple Options. In the event that Lessee has any multiple
\n —————-
\noptions to extend or renew this Lease, a later option cannot be exercised unless
\nthe prior option to extend or renew this Lease has been so exercised.<\/p>\n
39.4 Effect of Default on Options.
\n —————————-
\n (a) Lessee shall have no right to exercise an Option,
\nnotwithstanding any provision in the grant of Option to the contrary, (i) during
\nthe time commencing from the date Lessor gives to Lessee a notice of default
\npursuant to paragraph 13.1(c) or 13.1(d) and continuing until the noncompliance
\n___? in said notice of default is cured, or (ii) during the period of time
\ncommencing on the day after a monetary obligation to Lessor is due from Lessee
\nand unpaid (without any necessity for notice thereof to Lessee) and continuing
\nuntil the obligation is paid, or (iii) in the event that Lessor has given to
\nLessee three or more notices of default under paragraph 13.1(c), or paragraph
\n13.1(d), whether or not the defaults are cured during the 12 month period of
\ntime immediately prior to the time that Lessee attempts to exercise the subject
\nOption, (iv) if Lessee has committed any non-curable breach, including without
\nlimitation those described in paragraph 13.1(b), or is otherwise in default of
\nany of the terms, covenants or conditions of this Lease.<\/p>\n
(b) The period of time within which an Option may be exercised
\nshall not be extended or enlarged by reason of Lessee’s inability to exercise an
\nOption because of the provisions of paragraph 39.4(a).<\/p>\n
(c) All rights of Lessee under the provisions of an Option
\nshall terminate and be of no further force or effect, notwithstanding Lessee’s
\ndue and timely exercise of the Option, if, after such exercise and during the
\nterm of this Lease, (i) Lessee fails to pay to Lessor a monetary obligation of
\nLessee for a period of thirty (30) days after such obligation becomes due
\n(without any necessity of Lessor to give notice thereof to Lessee), or (ii)
\nLessee fails to commence to cure a default specified in paragraph 13.1(d) within
\nthirty (30) days after the date that Lessor gives notice to Lessee of such
\ndefault and\/or Lessee fails thereafter to diligently prosecute said cure to
\ncompletion, or (iii) Lessor gives to Lessee three or more notices of default
\nunder paragraph 13.1(c), or paragraph 13.1(b), or is otherwise in default of any
\nof the terms, covenants and conditions of this Lease.<\/p>\n
40. Security Measures-Lessor’s Reservations.
\n —————————————<\/p>\n
40.1 Lessee hereby acknowledges that Lessor shall have no obligation
\nwhatsoever to provide guard service or other security measures for the benefit
\nof the Premises or the Office Building Project. Lessee assumes all
\nresponsibility for the protection of Lessee, its agents, and invitees and the
\nproperty of Lessee and or Lessee’s agents and invitees from acts of third
\nparties. Nothing herein contained shall prevent Lessor, at Lessor’s sole option,
\nfrom <\/p>\n
27<\/p>\n
providing security protection for the Office Building Project or any part
\nthereof, in which event the cost thereof shall be included within the definition
\nof Operating Expenses, as set forth in paragraph 4.2(b).<\/p>\n
40.2 Lessor shall have the following rights<\/p>\n
(a) To change the name, address or title of the Office Building
\nProject or building in which the Premises are located upon not less than 90 days
\nprior written notice.<\/p>\n
(b) Deleted.<\/p>\n
(c) To permit any lessee the exclusive right to conduct any
\nbusiness as long as such exclusive does not conflict with any rights expressly
\ngiven herein.<\/p>\n
(d) To place such signs, notices or displays as Lessor
\nreasonably deems necessary or advisable upon the roof exterior of the buildings
\nor the Office Building Project or on pole signs in the Common Areas.<\/p>\n
40.3 Lessee shall not<\/p>\n
(a) Use a representation (photographic or otherwise) of the
\nBuilding or the Office Building Project or their name(s) in connection with
\nLessee’s business, without written permission from Lessor.<\/p>\n
(b) Suffer or permit anyone, except in emergency, to go upon
\nthe roof of the Building.<\/p>\n
41. Easements.
\n ———<\/p>\n
41.1 Lessor reserves to itself the right, from time to time, to grant
\nsuch easements, rights and dedications that Lessor deems necessary or desirable,
\nand to cause the recordation of Parcel Maps and restrictions, so long as such
\neasements, rights, dedications, Maps and restrictions do not unreasonably
\ninterfere with the use of the Premises by Lessee. Lessee shall sign any of the
\naforementioned documents upon request of Lessor and failure to do so shall
\nconstitute a material default of this Lease by Lessee without the need for
\nfurther notice to Lessee.<\/p>\n
41.2 The obstruction of Lessee’s view, air, or light by any structure
\nerected in the vicinity of the Building, whether by Lessor or third parties,
\nshall in no way affect this lease or impose any liability upon Lessor.<\/p>\n
42. Performance Under Protest. If at any time a dispute shall arise as to
\n ————————-
\nany amount or sum of money to be paid by one party to the other under the
\nprovisions hereof, the party against whom the obligation to pay the money is
\nasserted shall have the right to make payment “under protest” and such payment
\nshall not be regarded as a voluntary payment, and there shall survive the right
\non the part of said party to institute suit for recovery of such sum if it shall
\nbe adjusted that there was no legal obligation on the part of said party to pay
\nsuch sum or <\/p>\n
28<\/p>\n
any part thereof, said party shall be entitled to recover such sum or so much
\nthereof as it was not legally required to pay under the provisions of this
\nLease.<\/p>\n
43. Authority if Lessee is a corporation. ______??? general or limited
\n ————————————
\npartnership, Lessee, and _____??? individual executing this Lease on behalf of
\nsuch entity represent and warrant that such individual is duly authorized to
\nexecute and deliver this Lease on behalf of said entity if Lessee is a
\ncorporation, trust or partnership. Lessee shall, within thirty (30) days after
\nexecution of this Lease, deliver to Lessor evidence of such authority
\nsatisfactory to Lessor.<\/p>\n
44. Conflict. Any conflict between the printed provisions, Exhibits or
\n ——–
\nAddenda of this Lease and the typewritten or handwritten provisions, if any,
\nshall be controlled by the typewritten or handwritten provisions.<\/p>\n
45. No Offer. Preparation of this Lease by Lessor or Lessor’s agent and
\n ——–
\nsubmission of same to Lessee shall not be deemed an offer to Lessee to lease.
\nThis Lease shall become binding upon Lessor and Lessee only when fully executed
\nby both parties.<\/p>\n
46. Lender Modification. Lessee agrees to make such reasonable
\n ——————-
\nmodifications to this Lease as may be reasonably required by an institutional
\ntender in connection with the obtaining of normal financing or refinancing of
\nthe Office Building Project.<\/p>\n
47. Multiple Parties. If more than one person or entity is named as
\n —————-
\neither Lessor or Lessee herein, except as otherwise expressly provided herein,
\nthe obligations of the Lessor or Lessee herein shall be the joint and several
\nresponsibility of all persons or entities named herein as such Lessor or Lessee,
\nrespectively.<\/p>\n
48. Work Letter. This Lease is supplemented by that certain Work Letter
\n ———–
\nof even date executed by Lessor and Lessee, attached hereto as Exhibit C and
\nincorporated herein by this reference.<\/p>\n
49. Attachments. Attached hereto are the following documents which
\n ———–
\nconstitute a part of this Lease.<\/p>\n
See Addendum, paragraphs 50 through 55 attached hereto and made a part
\nhereof .<\/p>\n
CONTINGENCY: The validity of this Lease Agreement is contingent upon Lessee’s
\nfinal review and acceptance of the new space plan being prepared by Lessor’s
\narchitect and subsequent cost analysis by Jack Dymond & Associates, contractor,
\nand Lessee’s acceptance of Lessee’s portion of those costs.<\/p>\n
NONCOMPETE: Lessor shall not lease space in the building to a competing
\nchiropractic. Rent checks are to be made out to Sherman Avenue Account and sent
\nto 1930 Bryant Street, Palo Alto, CA 94301-3711.<\/p>\n
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
\nPROVISION CONTAINED HEREIN AND BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED
\nAND VOLUNTARY CONSENT THERETO, THE <\/p>\n
29<\/p>\n
PARTIES HEREBY AGREE THAT AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS
\nLEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF
\nLESSOR AND LESSEE WITH RESPECT TO THE PREMISES.<\/p>\n
IF THIS LEASE HAS BEEN FILLED IN IT HAS BEEN PREPARED FOR SUBMISSION TO
\n YOUR ATTORNEY FOR HIS APPROVAL. NO REPRESENTATION OR RECOMMENDATION IS MADE
\n BY THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION OR BY THE REAL ESTATE
\n BROKER OR ITS AGENT OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT,
\n OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION RELATING THERETO: THE
\n PARTIES SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN LEGAL COUNSEL AS TO
\n THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.<\/p>\n
LESSOR LESSEE<\/p>\n
Pio de Feo Dr. Alan A. Silverberg, D.C., Inc.<\/p>\n
By: By:
\n ————————- —————————————-
\n Alan A. Silverberg<\/p>\n
Its: Its
\n ——————– ——————————–<\/p>\n
By: By:
\n ————————- —————————————-<\/p>\n
Its: Its
\n ——————– ——————————–<\/p>\n
Executed at Executed at
\n —————– —————————–
\non on
\n ————————- ————————————–
\nAddress Address
\n ——————— ———————————-<\/p>\n
30<\/p>\n
ADDENDUM TO THAT STANDARD OFFICE LEASE
\n DATED JANUARY 6, 1992,
\n BY AND BETWEEN
\n PIO deFEO, LESSOR, AND
\n DR. ALAN A. SILVERBERG, D.C., INC.
\n dba: CALIFORNIA AVENUE CHIROPRACTIC, LESSEE
\n FOR SPACE LOCATED AT
\n 451 SHERMAN AVENUE, PALO ALTO, CA<\/p>\n
50. EXAMPLE RENTAL SCHEDULE:<\/p>\n
The following is an example of the minimum rental increase of
\n four percent (4%) over the Lease Term:<\/p>\n
\n\nYear Rental Rate
\n—- ———–<\/p>\n
\n1 $1,925.00 per month (one month free)
\n2 $2,002.00 per month ($1,925.00 X 4% = $2,002.00)
\n3 $2,082.00 per month ($2,002.00 X 4% = $2,082.00)
\n4 $2,165.00 per month ($2,082.00 X 4% = $2,165.00)
\n5 $2,251.00 per month ($2,165.00 X 4% = $2,251.00)<\/p>\n<\/c><\/caption>\n<\/table>\n
51. CONDITION OF PREMISES<\/p>\n
Lessor shall contribute up to 50% with a maximum of Thirteen
\n Thousand And No\/100 Dollars ($13,000.00) towards Lessee’s
\n interior improvements as detailed in the attached floor plan
\n marked Exhibit A.<\/p>\n
If Lessee does not exercise its five (5) year option to extend the
\n lease term and vacated the Premises, Lessee shall pay to Lessor the
\n unamortized portion of cost of interior improvements.<\/p>\n
52. OPTION TO EXTEND<\/p>\n
Lessee shall have one (1) option to extend this Lease Agreement for a
\n period of five (5) years, on the same terms and conditions excepting
\n tenant improvement allowance and rent. Lessee shall give Lessor
\n written notice of intent to exercise option no later than ninety (90)
\n days prior to this Lease expiration (i.e., date of said notice to be
\n no later than November 30, 1996).<\/p>\n
Rent for option period shall be at ninety percent (90%) of the then
\n fair market rate but in no event shall be increased more than eight
\n percent (8%) over previous year’s rent (i.e., the fifth [5th] year’s
\n rent).<\/p>\n
31<\/p>\n
53. SHOWER ROOM<\/p>\n
Lessee shall have the exclusive right to perform own modifications and
\n use the existing shower room as its x-ray developing room. Lessee
\n assumes full responsibility for improvements and any necessary permits
\n for said use. Work shall be performed by a licensed contractor.<\/p>\n
54. PERSONAL GUARANTEE<\/p>\n
Alan A. Silverberg hereby promises and agrees that Dr. Alan A.
\n Silverberg, D.C., Inc., a California Corporation, shall pay all
\n rentals due and perform and execute all of the covenants and
\n conditions herein contained and that should Dr. Alan A. Silverberg,
\n D.C., Inc. fail to pay said rentals or otherwise fail to perform or
\n comply with the terms and conditions of this Lease Agreement, said
\n performance, including payment of the rent, is hereby guaranteed by
\n the undersigned.<\/p>\n
55. SIGNAGE<\/p>\n
Lessee shall be permitted, at Lessee’s sole cost and expense, to
\n install door signage and window signage on its Premises.<\/p>\n
32<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7637],"corporate_contracts_industries":[9525],"corporate_contracts_types":[9583,9579],"class_list":["post-41735","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-getthere-inc","corporate_contracts_industries-transportation__services","corporate_contracts_types-land__ca","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41735","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41735"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41735"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41735"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41735"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}