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EXHIBIT 10.25
OFFICE BUILDING LEASE
This Office Building Lease ("Lease") is made November 11, 1997 between The
Campus, LLC, a California Limited Liability Company, ("Landlord") and Viasat,
Inc., a California corporation, ("Tenant").
1. DEFINITIONS.
As used in this Lease, the following items shall have the
following meanings:
1.1. Annual Base Rent. One Hundred Twenty Thousand Two Hundred
Sixty Four and 40/100 Dollars ($120,264.40), computed at
the rate of $19.80 per rentable square foot per year
(Subject to adjustment in Addendum, Paragraph 41).
1.2. Base Year. The Base Year for this Lease is the 1997
calendar year.
1.3. Building. The two (2) story office building within which
the Premises is located known as The Campus Office
Building, located at 5962 La Place Court, Carlsbad,
California and consisting of approximately 45,173 rentable
square feet.
1.4. Commencement Date.
Suite 225 ("Original Premises"): December 1, 1997.
Suite 260 ("First Expansion Premises"): The date that the existing tenant vacates Suite
260, which will not be later than January 12, 1998.
Suite 230 ("Second Expansion Premises"): March 1, 1998.
1.5. Common Areas. All areas within the Project which now or at
any time hereafter are available for the common use of
tenants and which are not leased or held for the exclusive
use of any such tenants, including, but not limited to,
building lobbies, building conference rooms, common
corridors and hallways, restrooms and shower rooms (other
than those for full floor tenants), parking and landscaped
areas, swimming pools, picnic areas, sidewalks, stairways,
elevators,and other generally understood public or common
areas. Landlord may, from time to time, change the size,
location, nature and use of the common areas, so long as
such changes do not materially affect Tenant's use of the
Premises.
1.6. Comparison Year. Comparison Year is defined as each
calendar year during the Lease Term subsequent to the Base
Year.
1.7. Expiration Date. May 31, 1999.
1.8. Consumer Price Index. United States Department of Labor,
Bureau of Labor Statistics Consumer Price Index for All
Urban Consumers, Los Angeles/Anaheim/Riverside Metropolitan
Area, Subgroup "All Items" (1982-84=100).
1.9. Landlord's Mailing Address for Notice. The.Campus, LLC, c/o
Newport National Corporation; Attn.: Jeffry A. Brusseau,
5050 Avenida Encinas, Suite 356, Carlsbad, California
92008.
1.10. Lease Term. The term of this Lease shall be for One (1)
year and Six (6) months.
1.11. Tenant's Mailing Address for Notice. 2290 Cosmos Court,
Carlsbad, CA 92009-1585, Attention: Greg Monahan.
1.12. Monthly Installments of Annual Base Rent. Three Thousand
Seven Hundred Forty Eight and 00/100 Dollars ($3,748.00).
(Subject to adjustment in Addendum Paragraph 41).
1.13. Premises. The cross-hatched area shown on the attached
floor plans (Exhibits "B" through "B-3") consisting of the
approximate 2,272 rentable square feet comprising Suite 225
("Original Premises'), the approximate 2,724 rentable
square feet comprising Suite 260 ("First Expansion
Premises"), and the approximate 1,740 rentable square feet
comprising Suite 230 ("Second Expansion Premises"), for a
total of approximately 6,736 rentable square feet
("Premises'), located on the second floor of the Building.
1.14. Project. The real property upon which the Building is
located as more particularly described in Exhibit "A"
attached hereto, together with all easements and
appurtenances pertaining thereto, improvements, fixtures,
and equipment used in the general operation of such
improvements. The Project contains a total Rentable Area of
approximately 157,886 rentable square feet.
1.15. Security Deposit. Ten Thousand Six Hundred Seventy Nine and
40/100 Dollars ($10,679.40).
1.16. Tenant's Building Proportionate Share. 14.91%. Such share
is a fraction, the numerator of which is the rentable
square footage of the Premises, and the denominator of
which is the rentable square footage of the Building.
1.17. Tenant's Project Proportionate Share. 4.27%. Such share is
a fraction, the numerator of which is the rentable square
footage of the Premises, and the denominator of which is
the rentable square footage of the Project.
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2. LEASE OF PREMISES.
2.1. Lease of Premises. Landlord leases to Tenant and Tenant
leases from Landlord the Premises described in Section 1.13
above. Tenant shall have the non-exclusive right (unless
otherwise provided herein) in common with Landlord, other
tenants, subtenants and invitees, to use of the Common
Areas (as defined in Section 1.5), subject to such rules
and regulations as Landlord may establish from time to
time.
2.2. Delivery of Possession. If Landlord, for any reason, cannot
deliver possession of the Premises to Tenant on or before
the Commencement Date (as defined in Section 1.4), all
other terms and conditions of this Lease shall remain in
full force and effect, this Lease shall not be void or
voidable, nor shall Landlord be liable to Tenant for any
loss or damage resulting from such delay.
3. EXHIBITS AND ADDENDA.
The exhibits and addenda listed below (unless lined out) are
attached hereto and incorporated by reference in this Lease:
Exhibit A: Site Plan of the Project
Exhibit B: Premises
Exhibit C: Tenant Improvements
Exhibit D: Rules and Regulations
Exhibit E: Parking Rules and Regulations
Exhibit E-1: Pool and Spa Rules and Regulations
Exhibit F: Sign Criteria
Exhibit F-1: Sign Dimensions
Exhibit G: [Deleted]
Exhibit H: Standard Hazardous Materials Addendum to Office Building
Lease
Addenda
4. TERM.
4.1. Term. The term of this lease shall begin as of the
Commencement Date as defined in Sections 1.4 and 2.2 shall
continue thereafter during the Lease Term as specified in
Section 1. 1 0 unless sooner terminated as hereinafter
provided in this Lease.
5. PARKING.
During the Lease Term and in connection with its use and occupancy of
the Premises, Tenant shall have the right to lease on a non-reserved
or allocated basis Twenty Four (24) parking spaces in the designated
parking areas in the Project. All such spaces shall be available at
the same rates as established from time to time by Landlord for other
spaces in the same location. The use by Tenant, its employees and
invitees, of the parking facilities of the Project shall be on the
terms and conditions set forth in Exhibit "E" attached hereto and as
may be established by Landlord from time to time during the Lease
Term. (See also Addendum Paragraph 50.)
The parking authorized by this Section shall be for the personal
transportation of Tenant and its employees only, to and from the
Building, and is not for Tenant's invitees and guests. Tenant's
invitees and guests may use parking spaces in the Building garage or
parking lot which are not allocated or reserved for Tenant or other
occupants of the Building on a first-come first-served basis, at the
then current parking rates charged by Landlord. The parking spaces
allocated to Tenant are not for long-term (i.e., more than 24 hours)
storage of automobiles or for short-term or long-term storage of
boats, trailers, recreational vehicles, motorcycles or other vehicles
or equipment. Landlord shall have the right to designate where
parking spaces allocated to Tenant shall be located and may reserve
certain spaces from Tenant's use as, in Landlord's sole discretion,
Landlord may determine.
6. RENT.
6.1. Payment of Annual Base Rent. Tenant agrees to pay the
Annual Base Rent for the Premises (as specified in Section
1.1) in twelve (12) equal monthly installments (as
specified in Section 1.12) payable in advance, on the first
day of each calendar month of the Lease Term, without prior
notice, offset, demand or deduction, commencing on the
Commencement Date. If the Lease Term begins or ends on
other than the first or last day of a calendar month, the
Base Rent for the partial month shall be prorated on a per
diem basis.
6.2. Annual Base Rent Adjustment. (See also Addendum Paragraph
41.)
The amount of Annual Base Rent (and the corresponding
Monthly installments of Base Rent) payable hereunder shall
be adjusted according to the schedule in Addendum Paragraph
41.
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6.3. Project Operating Costs. Tenant shall pay to Landlord as
additional Rent during the Lease Term hereof, in addition
to the Annual Base Rent (i) Tenant's Project Proportionate
Share of the amount by which all Project Operating Costs
(as hereinafter defined) for each Comparison Year (as
defined in Section 1.6) exceed the amount of all Project
Operating Costs for the Base Year (as defined in Section
1.2), such excess being hereinafter referred to as the
"Project Operating Costs Increase," and (ii) Tenant's
Building Proportionate Share of the amount by which Project
Operating Costs specifically allocated to the Building for
each Comparison Year exceed the amount of Project Operating
Costs specifically allocated to the Building for the Base
Year, such excess being hereinafter referred to as the
"Building Operating Costs Increase." The Project Operating
Costs Increase and Building Operating Costs Increase are
sometimes referred to collectively as the "Operating Costs
Increase."
a. The term "Project Operating Costs" shall include,
but not be limited to, the sum of all those
operating costs and expenses incurred by Landlord
in maintaining, repairing, managing and operating
the Project, including without limitation the
following: (1) electricity, gas, and other
utilities (except those separately metered to
tenants); (2) supplies and tools; (3) water and
sewer charges and other similar governmental or
quasi-governmental charges attributable to the
Project or its operations; (4) services of
independent contractors including trash removal,
janitorial and all other cleaning services,
refurbishing and repainting, air conditioning,
heating and elevator service, pest control,
resurfacing, lighting systems, fire detection and
security services, landscape maintenance, road,
sidewalk and driveway maintenance; (5)
compensation (including employment, employer tax
liabilities; and fringe benefits) of all persons
who perform on-site duties connected with the
operation, maintenance, repair or overhaul of the
Project and equipment, improvements and
facilities located within. the Project, including
without limitation engineers, janitors, painters,
floor waxers, window washers, security and
parking personnel and gardeners (but excluding
persons performing `services not uniformly
available to or performed for substantially all
Project tenants); (6) operation and maintenance
of a room for delivery and distribution of mail
to tenants of the Project, if required by the
U.S. Postal Service (including, without
limitation, an amount equal to the fair market
rental value of the mail room premises); (7) any
charges under any declarations of covenants,
conditions and restrictions applicable to the
Project for repair and maintenance of, property
taxes with respect to, special assessments, or
other charges on property controlled by the
declarations; (8) management of the Project,
whether managed by Landlord or an independent
contractor (including, without limitation, an
amount equal to the fair market value of any
on-site manager's office); (9) rental expenses
for (or a reasonable depreciation allowance on)
personal property used in the maintenance,
operation or repair of the Project; (10) costs,
expenditures -or charges relating to the
maintenance and repair of the Common Areas, (11)
amortization over its useful life of any capital
improvements (including financing costs) provided
such improvements are (i) required by a
governmental or quasigovernmental entity or any
change in laws, rules, or regulations of any
governmental authority, or (ii) made by Landlord
to reduce Project Operating Costs; and which
actually do reduce Project Operating Costs; and
(12) any other operating costs or expenses
incurred by Landlord under this Lease and not
otherwise reimbursed by tenants of the Project.
b. As soon as possible after the beginning' of each
calendar year, Landlord shall give to Tenant a
statement of the amount of the Operating Costs
Increase and any other additional rent payable by
Tenant hereunder for the previous year, all of
which shall be due and payable upon receipt of
the statement. In addition, for each year after
the Base Year, or portion thereof, Tenant shall
pay Tenant's Project Proportionate Share and
Tenant's Building Proportionate Share of
Landlord's good faith estimate of the Operating
Costs Increase for the following year. This
estimated amount shall be divided into twelve
equal monthly installments. Tenant shall pay to
Landlord, concurrently with the regular monthly
rent payment next due following the receipt of
such statement, an amount equal to one monthly
installment multiplied by the number of months
from January in the calendar year in which said
statement is submitted to the month of such
payment, both months inclusive. Subsequent
installments shall be payable concurrently with
the regular monthly rent payments for the balance
of that calendar year and shall continue until
the next calendar year's statement is rendered..
If; in any calendar year, the actual amount of
the Operating Costs Increase Tenant owes is less
than the estimate for that year, then upon
receipt of Landlord's statement, any overpayment
made by Tenant shall be credited towards all
payments thereafter due under this Article 6.3,
and the estimated monthly installments of
Tenant's share of Operating Costs Increase shall
be adjusted to reflect such lower Project
Operating Costs for the most recent year. If the
actual amount of the Operating Costs Increase
Tenant owes is more than the estimate for that
year, Tenant shall immediately pay any such
increase to Landlord.
c. Even though the Lease Term has expired and Tenant
has vacated the Premises, when the final
determination is made of the amount Tenant owes
under this Section for the year in which this
Lease terminates, Tenant shall immediately pay
any increase due over the estimated expenses paid
and, conversely, provided Tenant is not in
default under this Lease, any overpayment made in
the event said expenses decrease shall be rebated
by Landlord to Tenant.
d. All increases in Project Operating Costs shall be
determined separately and without regard to
changes or adjustments in Property Taxes or
Insurance Charges for the Project.
e. Project Operating Costs shall not include (i)
costs incurred because the Landlord or another
tenant violated the terms of any lease; (ii)
interest on debt or amortization payments on
mortgages or deeds of trust or any. other debt
for borrowed money; (iii) advertising,
promotional and public relations expenditures;
(iv) repairs or other work needed because of
fire, windstorm, or other
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casualty or cause insured against by Landlord
or to the extent Landlord's insurance required
under Section 38 would have provided insurance,
whichever is greater coverage, except that the
cost of the deductible for said insurance shall
be included in the project operating costs; (v)
any costs, fines, or penalties incurred because
Landlord violated any law, governmental rule or
authority; (vi) costs incurred to test, survey,
cleanup, contain, abate, remove, or otherwise
remove hazardous waste or asbestos containing
materials from the Property unless the waste or
asbestos containing materials were in or on the
Property because of tenant's negligence or
intentional acts; and (vii) other expenses that
under generally accepted accounting principles
consistently applied would not be considered
normal maintenance, repair, management, or
operation expenses.
6.4. Property Taxes. Tenant agrees to pay to Landlord, as
additional rent, Tenant's Project Proportionate Share of
the amount by which all taxes, assessments and other
similar governmental charges levied on or attributable
to the Project or its operation for each Comparison Year
exceed the amount of all Property Taxes for the Base
Year, including without limitation, (1) real property
taxes or assessments levied or assessed against the
Project, (2) assessments or charges levied or assessed
against the Project by any redevelopment agency, and (3)
any tax measured by gross rental received from the
leasing of the Project, excluding any net income,
franchise, capital stock estate or inheritance taxes
imposed by the State or federal government or their
agencies, branches or departments, such taxes,
assessments and charges being hereinafter referred to as
"Property Taxes".If at any time during the Lease Term
any governmental entity levies, assesses or imposes on
Landlord any (1) general or special, ad valorem or
specific, excise, capital levy or other tax, assessment,
levy or charge directly on the Rent received under this
Lease or on the rent received under any other leases of
space in the Building or Project, or (2) any license
fee, excise or franchise tax, assessment, levy or charge
measured by or based, in whole or part, upon such rent,
or (3) any transfer, transaction, or similar tax,
assessment, levy or charge based directly or indirectly
upon the transaction represented by this Lease or such
other leases, or (4) any occupancy, use, per capita or
other tax, assessment, levy or charge based directly or
indirectly upon the use or occupancy of the Premises or
other premises within the Building or Project, then any
such taxes, assessments, levies and charges shall be
deemed to be included in the term Property Taxes. Tenant
shall pay the amount of Property Taxes owed by Tenant in
accordance with the requirements of Section 6.3 of this
Lease. All increases in Property Taxes for each year of
this Lease shall be determined separately and without
regard to changes or adjustments in Project Operating
Costs or Insurance Charges for the Project.
6.5. Insurance Charges. Tenant agrees to pay to Landlord, as
additional rent, Tenant's Project Proportionate Share of
the amount by which all premiums for insurance for each
Comparison Year exceed the amount of Premiums for the Base
Year including, without limitation, public liability,
property damage, loss of rents, earthquake and fire and
extended coverage insurance for the full replacement value
of the Project as required by Landlord or its lenders for
the Project. Tenant shall pay the amount of Premiums owed
by Tenant in accordance with the requirements of Section
6.3 of this Lease. All increases in Premiums for each year
of this Lease shall be determined separately and without
regard to changes or adjustments in Project Operating Costs
or Property Taxes for the Project.
6.6. Definition of Rent. All costs and expenses which tenant
assumes or agrees to pay to Landlord under this Lease shall
be deemed additional rent (which, together with the Annual
Base Rent is sometimes referred to as the "Rent"). The Rent
shall be paid to the Landlord (or other person that
Landlord may designate), and at such place as Landlord may
from time to time designate in writing, without any prior
notice or demand therefor and without deduction or offset,
in lawful money of the United States of America.
6.7. Taxes Payable by Tenant. In addition to the Rent and any
other charges to be paid by Tenant hereunder, Tenant shall
reimburse Landlord upon demand for any and all taxes
payable by Landlord (other than net income taxes) which are
not otherwise reimbursable under this Lease pursuant to
Section 6.4 hereof, whether or not now customary or within
the contemplation of the parties, where such taxes are
upon, measured by or reasonably attributable to (i) the
costs or value of Tenant's equipment, furniture, fixtures
and other personal property located in the Premises, or the
cost or value of any leasehold improvements made in or to
the Premises by or for Tenant, other than Tenant
Improvements made by Landlord, regardless of whether title
to such improvements is held by Tenant or Landlord; (ii)
the gross or net Rent payable under this Lease, including,
without limitation, any rental or gross receipts, tax
levied by any taxing authority with respect to the receipt
of the Rent hereunder; (iii) the possession, leasing,
operation, management, maintenance or alteration, repair,
use or occupancy by Tenant of the Premises or any portion
thereof, or (iv) this transaction or any document to which
Tenant is a party creating or transferring an interest or
an estate in the Premises. If it becomes unlawful for
Tenant to reimburse Landlord for any costs as required
under this Lease, the Base Rent shall be revised to net
Landlord the same net Rent after imposition of any tax or
other charge upon Landlord as would have been payable to
Landlord but for the reimbursement being unlawful.
6.8. Audit. Landlord shall retain its records regarding Common
Area Maintenance Charges for a period of at least one (1)
year following the final billing for the calendar year in
question. At any time during such one (1) year period, upon
reasonable advance written notice to Landlord, but not more
frequently than once in any calendar year, Tenant shall
have the right to audit all of Landlord's or Landlord's
agent's records pertaining to Common Area Maintenance
Charges by a representative of Tenant's choice. If such
audit reveals that Landlord's annual statement was
incorrect, any over-billing discovered in the course of
such audit shall be refunded to Tenant within thirty (30)
days of Landlord's receipt of a copy of the audit, unless
Landlord disputes the audit, and any underbilling shall be
paid by Tenant to Landlord within thirty (30) days of the
audit. In the event that any overbilling exceeds the amount
actually due from Tenant for the year by
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three percent (3%) or more, then Landlord shall reimburse
Tenant for the reasonable costs of the audit. If Landlord
disputes the results of Tenant's audit, Landlord and
Tenant shall attempt to resolve such dispute in good
faith. If Landlord and Tenant are unable to do so within
thirty (30) days, then Landlord shall commission a second
audit by an accounting firm selected by Landlord. The
results of such second audit shall be deemed conclusive as
to any such dispute. Landlord shall pay the cost of such
second audit unless such second audit confirms amounts
actually due from Tenant for the year are within the three
percent (3%) noted above, in which event Tenant shall pay
for the second audit. In any event, Tenant shall continue
to pay all Rent and Excess Operating Costs, Additional
Rent, as otherwise provided by this Lease until the
dispute is resolved or the results of the second audit are
available.
7. INTEREST AND LATE CHARGES.
If Tenant fails to pay, when due, any Rent or other amounts or
charges which Tenant is obligated to pay under the terms of this
Lease, the unpaid amounts shall bear interest from the due date until
the date paid at the prime rate then established by Bank Of America
plus two percent per annum, but not to exceed the maximum rate then
allowed by law. Tenant acknowledges that the late payment of any
installment of Rent or other charges will cause Landlord to lose the
use of that money and incur costs and expenses not contemplated under
this Lease, including without limitation, administrative and
collection costs and processing and accounting expenses, the exact
amount of which is extremely difficult to ascertain. Therefore, in
addition to interest, if any such installment is not received by
Landlord within five (5) days from the date it is due, Tenant shall
pay Landlord a late charge equal to ten percent (10%) of such
installment. By affixing their initials where indicated below,
Landlord and Tenant agree that this late charge represents a
reasonable estimate of such costs and expenses and is fair
compensation to Landlord for the loss suffered from such late payment
by Tenant. Acceptance of any interest or late charge shall not
constitute a waiver of Tenant's defaults with respect to such late
payment by Tenant nor prevent Landlord from exercising any other
rights or remedies available to Landlord under this Lease.
8. SECURITY DEPOSIT.
Tenant agrees to deposit with Landlord a Security Deposit equal to
one Monthly Installment of Annual Base Rent upon execution of this
Lease as security for Tenant's faithful performance of its
obligations under this Lease. Tenant may not credit the Security
Deposit to any rent, or additional rent, due under the lease,
including rent due during the last month of the Term of this Lease.
Landlord and Tenant agree that the Security Deposit may be commingled
with funds of Landlord, and Landlord shall have no obligation or
liability for payment of interest on such deposit. Tenant shall not
mortgage, assign, transfer or encumber the Security Deposit without
the prior written consent of Landlord, and any attempt by Tenant to
do so shall be void, without full force or effect and shall not be
binding upon Landlord.
If Tenant fails to pay any Rent or other amount when due and payable
under this Lease, or fails to perform any of the terms hereof,
Landlord may appropriate and apply or use all, or any portion, of the
Security Deposit for Rent payments or any other amount then due and
unpaid, for payment of any amount for which Landlord has become
obligated as a result of Tenant's default or breach, or for any loss
or damage sustained by Landlord as a result of Tenant's default under
or breach of any term of this Lease. Landlord may so apply or use
this deposit without prejudice to any other remedy Landlord may have
by reason of Tenant's default or breach. If any portion of the
Security Deposit is so used or applied, Tenant shall, within ten days
after written demand therefor, restore the Security Deposit to the
full amount originally deposited; Tenant's failure to do so shall
constitute an event of default hereunder and Landlord shall have the
right to exercise any remedy provided for at Section 28 hereof.
Within thirty (30) days after the Term has expired or Tenant has
vacated the Premises, whichever shall last occur, and provided Tenant
is not then in default of any of its obligations hereunder, Landlord
shall return the Security Deposit or any balance thereof to Tenant,
or if Tenant has assigned its interest under this Lease, to the last
assignee of Tenant. Such Security Deposit shall be returned to Tenant
within thirty (30) days of Tenant's vacation of the Premises provided
that the Premises is in satisfactory condition as per Paragraph 12.8
of the Lease Agreement. If any portion of the Security Deposit is
retained by Landlord, Landlord shall provide Tenant with a statement
setting for the amounts and reasons for retention. IF Landlord sells
its interest in the Premises, Landlord may deliver this deposit to
the purchaser of Landlord's interest and thereupon be relieved of any
further liability or obligation to Tenant with respect to the
Security Deposit.
9. TENANT'S USE OF THE PREMISES.
Tenant shall use the Premises solely for general office and assembly
of components for telecommunications equipment. Tenant shall not use
or occupy the Premises in violation of law or any covenant, condition
or restriction affecting the Project or the certificate of occupancy
issued for the Project, and shall, upon notice from Landlord,
immediately discontinue any use of the Premises which is declared by
any governmental authority having jurisdiction to be a violation of
law or the certificate of occupancy. Tenant, at Tenant's own cost and
expenses, shall comply with all laws, ordinances, regulations, rules
and/or any directives of any governmental agencies or authorities
having jurisdiction which shall, by reason of the nature of Tenant's
use or occupancy of the Premises, impose any duty upon Tenant or
Landlord with respect to the Premises or its use or occupation. A
judgment of any court of competent jurisdiction or the admission by
Tenant of any action or proceeding against Tenant or that Tenant has
violated any such law, ordinances, regulations, rules and/or
directives in the use of the Premises shall be deemed to be a
conclusive determination of that fact as between Landlord and Tenant.
Tenant shall not do or permit to be done anything which will
invalidate or increase the cost of any fire, extended coverage or
other insurance policy covering the Building or Project and/or
property located therein, and shall comply with all rules, orders,
regulations, requirements and recommendations of the Insurance
Services Office or any other organization performing a similar
function. Tenant shall promptly upon demand reimburse Landlord for
any additional premium charged for such policy by reason of Tenant's
failure to comply with the provisions of this Section. Tenant shall
not
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do or permit anything to be done in or about the Premises or Project
which will in any way obstruct or interfere with the rights of other
tenants or occupants of the Building or Project, or injure or annoy
them, or use or allow the Premises or Project to be used for any
improper, immoral, or unlawful purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises or
Project. Tenant shall not permit animals in, on or about the
Premises. Tenant shall not commit or suffer to be committed any waste
in or upon the Premises or Project.
10. SERVICES AND UTILITIES.
Provided that Tenant is not in default hereunder, Landlord agrees to
furnish to the Premises, during normal business hours of generally
recognized business days, the utilities and services described
herein, including water, electricity for operating common areas
during hours determined by Landlord in its sole discretion and
subject to the Rules and Regulations of the Building or Project. If
Tenant desires any of these services at any other time, Landlord
shall use reasonable efforts to furnish such service upon reasonable
notice from Tenant and Tenant shall pay Landlord's charges therefore
on demand. Landlord shall also keep lighted the common stairs, common
entries and restroom(s) in the Project. Landlord shall not be in
default hereunder or be liable for any damages directly or indirectly
resulting from, nor shall the Rent be abated by reason of (i) the
installation, use or interruption of use of any equipment in
connection with the furnishing of any of the foregoing services, (ii)
failure to furnish or delay in furnishing any such services where
such failure or delay is caused by accident or by any condition or
event beyond the reasonable control of Landlord, or by the making of
necessary repairs or improvements to the Premises, the Building or
the Project, or (iii) the limitation, curtailment or rationing of, or
restrictions on, use of water, electricity, gas or any other form of
energy serving the Premises, the Building, or the Project. Landlord
shall not be liable under any circumstances for a loss of or injury
to property or business, however occurring, through or in connection
with or incidental to failure to furnish any such services. If Tenant
uses heat generating machines or equipment in the Premises which
affect the temperature otherwise maintained, Landlord reserves the
right to install supplementary air conditioning units in the Premises
and the cost thereof, including the cost of installation, operation
and maintenance thereof, shall be paid by Tenant to Landlord upon
demand by Landlord.
Tenant shall not consume water in excess of that usually furnished or
supplied for the use of premises as general office space (as
determined by the Landlord) without first procuring the written
consent of Landlord, which Landlord may refuse, and, in the event of
consent, Landlord may have installed a water meter in the Premises to
measure the amount of water consumed. The cost of any such meter and
of its installation, maintenance and repair shall be paid for by the
Tenant, and Tenant agrees to pay promptly as and when bills are
rendered for all such water consumed as shown by said meters, at the
rates charged for such services by the local public utility plus any
additional expense incurred by Landlord in keeping account of the
water so consumed. If a separate meter is not installed, the excess
cost for such water shall. be established by an estimate made by a
utility company or electrical engineer hired by Landlord at Tenant's
expense.
If Landlord has installed separate metering of electricity furnished
to the Premises, the cost of maintenance and repair of such metering
shall be paid by Tenant. Tenant agrees to cause all bills for its use
of electricity to be sent and charged directly to Tenant and Tenant
agrees to promptly pay such electrical bill as and when rendered for
all such electricity consumed as shown by said metering at utility
rates charged by said public utility. Tenant agrees not to connect
any apparatus with electric current except through existing
electrical outlets in the Premises.
Landlord shall furnish heating, ventilation, and air conditioning
("HVAC"), elevator service, lighting replacement for building
standard lights, restroom supplies, window washing and janitor
services in the manner that such services are customarily furnished
to comparable office building in.the area. Tenant at his sole cost
and expense shall provide for itself all other services including
telephone services chargeable to the Premises not herein supplied by
Landlord.
11. CONDITION OF THE PREMISES.
Except as specified in the "Tenant Improvement Punch List" and/or
"Move-In Walk Through Form," taking of possession of the Premises by
Tenant shall be deemed conclusive evidence that, as of that date, the
Premises were in good order and satisfactory condition. Tenant
acknowledges that no promises to alter, remodel, repair or improve
the Premises, the Building, or the Project and no representation,
express or implied, respecting any matter relating to the Premises,
the Building, or the Project or this Lease including, without
limitation, the suitability of or condition of the Premises, the
Building, or the Project have been made to Tenant by Landlord or its
Broker or any agent, other than as may be contained herein or in a
separate exhibit or addendum signed and made a part of this agreement
by Landlord and Tenant.
12. CONSTRUCTION, REPAIRS AND MAINTENANCE.
12.1. Landlord's Obligations: Landlord shall maintain in good
order, condition and repair the structural portions of the
Project, the Building, the Common Areas, and all other
portions of the Premises and the Project not the obligation
of Tenant or of any other tenant in the Project, unless
such maintenance and repairs are caused in part or in whole
by the act, neglect,, or omission of any duty by Tenant,
its agents, servants, employees or invitees, in which case
Tenant shall pay to Landlord, as additional rent, the
reasonable cost of such maintenance and repairs as
determined by Landlord plus a reasonable percentage of
mark-up to cover general conditions and fees.
12.2. Tenant's Obligations.
a. Tenant, at Tenant's sole expense shall, except
for services and utilities furnished by Landlord
pursuant to Section 10 hereof, maintain the
Premises in good order, condition and repair,
including the interior surfaces of the ceilings,
walls and floors, all doors, all interior
windows, all plumbing,
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pipes and fixtures, electrical wiring, switches
and fixtures, furnishings and special items and
equipment installed by or at the expense of
Tenant; provided, however, that Tenant may not
make repairs of a capital nature without
Landlord's prior written consent (at Landlord's
sole discretion) nor shall Tenant be responsible
for the costs of capital repairs unless such
repairs are due to Tenant's use in excess of
normal wear and tear or due to Tenant's
negligence or intentional misconduct.
b. Tenant shall be responsible for all repairs and
alterations in and to the Premises, the Building,
and the Project and the facilities and systems
thereof, the need for which arises out of (I)
Tenant's use or occupancy of the Premises, (ii)
the installation, removal, use or operation of
Tenant's Property (as defined in Section 14) in
the Premises, (iii) the moving of Tenant's
Property into or out of the Premises, or (iv) the
act, omission, misuse or negligence of Tenant,
its agents, contractors, employees or invitees.
c. If Tenant fails to maintain the Premises in good
order, condition and repair, Landlord shall give
Tenant notice to do such acts as are reasonably
required to so maintain the Premises. If, within
ten (10) days thereafter, Tenant fails to.
promptly commence such work and diligently
prosecute it to completion, then Landlord shall
have the right to do such work and expend such
funds at the expense of Tenant as are reasonably
required to perform such work. Any amount so
expended by Landlord plus a reasonable percentage
of mark-up to cover general conditions and fees
shall be paid by Tenant promptly upon demand and
interest shall accrue on any unpaid portion of
such amount at the prime rate then established by
Bank Of America plus two percent per annum, from
the date payment was due, but not to exceed the
maximum rate then allowed by law. Landlord shall
have no liability to Tenant for any damage,
inconvenience, or interference with the use of
the Premises by Tenant as a result of performing
any such work.
12.3. Compliance with Law: Landlord and Tenant shall each do all
acts required to comply with all applicable laws,
ordinances, and rules of any public authority relating to
their respective maintenance and repair obligations as set
forth herein.
12.4. Waiver by Tenant: Tenant expressly. waives the benefits of
any statute now or hereafter in effect which would
otherwise afford the Tenant the right to make repairs at
Landlord's expense or to terminate this Lease because of
Landlord's failure to keep the Premises in good order,
condition or repair. The foregoing sentence shall not be a
waiver of Tenant's rights to claim Landlord has breached
its obligations specified in this Lease.
12.5. Load and Equipment Limits: Tenant shall not place a load
upon any floor of the Premises which exceeds the load per
square foot which such floor was designed to carry, as
determined by Landlord or Landlord's structural engineer.
The cost of any such determination made by Landlord's
structural engineer shall be paid by Tenant upon demand.
Tenant shall not install business machines or mechanical
equipment which cause noise or vibration to such a degree
as to be objectionable to Landlord or other Project
tenants.
12.6. Except as otherwise expressly provided in this Lease,
Landlord shall have no liability to Tenant nor shall
Tenant's obligations under this Lease be reduced or abated
in any manner whatsoever by reason of any inconvenience,
annoyance, interruption or injury to business arising from
Landlord's making any repairs, alterations or improvements
in or to any portion of the Project, the Building, or the
Premises which Landlord is required or permitted to make
under this Lease or under any other tenant's lease or
required to make by law. Landlord shall nevertheless use
reasonable efforts to minimize any interference with
Tenant's business in the Premises.
12.7. Tenant shall give Landlord prompt notice of any damage to
or defective condition in any part or appurtenance of the
Project's mechanical, electrical, plumbing, heating,
ventilating, air conditioning or other systems serving,
located in, or passing through the Premises.
12.8. Upon the expiration or earlier termination of this Lease,
Tenant shall return the Premises to Landlord clean and in
the same condition as on the date Tenant took possession,
except for normal wear and tear. Any damage to the
Premises, including any structural damage, resulting from
Tenant's use or from the removal of Tenant's fixtures,
furnishings and equipment pursuant to Section 14 shall be
repaired by Tenant at Tenant's expense.
13. ALTERATIONS AND ADDITIONS.
13.1. Tenant shall not make any additions, alterations or
improvements to the Premises without first obtaining the
prior written consent of Landlord. Landlord's consent may
be conditioned upon Tenant's removing any such additions,
alterations or improvements upon the expiration of the
Lease Term and restoring the Premises to the same condition
as on the date Tenant took possession. All work with
respect to any addition, alteration or improvements shall
be done in a good and workmanlike manner by properly
qualified and licensed contractors, mechanics and other
personnel approved in advance by Landlord, and such work
shall be permitted by the City in which the work is
performed and diligently pursued to completion in
conformance with applicable building codes. Tenant shall
supply Landlord with copies of as-built drawings and
permits. Landlord may, at Landlord's option, require that
any such work be performed by Landlord's contractor, in
which case the cost of such work shall be paid for before
commencement of the work.
13.2. Tenant shall pay the costs of any work done on the Premises
pursuant to Section 13.1 and shall keep the Premises and
Project free and clear of mechanic's, materialman's or any
other liens. Tenant shall
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indemnify, defend against and hold Landlord free and
harmless from all liability, loss, damage, costs,
attorneys' fees and any other expense incurred on account
of claims by any person performing work or furnishing
materials or supplies for Tenant or any person claiming
under Tenant.
Tenant shall keep Tenant's leasehold interest, and any
additions or improvements which are or become the property
of Landlord under this Lease, free and clear of all
attachment or judgment liens before the actual commencement
of any work for which a claim or lien may be filed. Tenant
shall give Landlord ten days written notice of the intended
commencement date to enable Landlord to post notices of
nonresponsibility or any other notices which Landlord deems
necessary for the proper protection of Landlord's interest
in the Premises or the Project, and Landlord shall have the
right to enter the Premises and post such notices at any
reasonable time.
13.3. Landlord may require, at Landlord's sole option, that
Tenant provide to Landlord, at Tenant's expense, a lien and
completion bond in an amount equal to at least one and
one-half times the total estimated cost to any additions,
alterations or improvements to be made in or to the
Premises to protect Landlord against any liability for
mechanic's and materialman's liens and to insure timely
completion of the work. Nothing contained in this Section
13.3 shall relieve Tenant of its obligation under Section
13.2 to keep the Premises and the Project free of all
liens.
13.4. Unless their removal is required by Landlord as provided in
Section 13.1, all additions, alterations and improvements
made to the Premises shall become the property of Landlord
and shall remain upon and be surrendered with the Premises
as a part thereof upon the expiration of the Lease Term;
provided, however, Tenant's equipment, machinery and trade
fixtures which can be removed without damage to the
Premises shall remain the property of Tenant and may be
removed, subject to the provisions of Section 14.2.
13.5. Tenant shall be required to remove only those Alterations
and Additions which Landlord identifies in writing, at the
time Landlord consents to construction, as an Alteration or
Addition which Landlord desires to be removed upon
termination or expiration of this Lease.
14. LEASEHOLD IMPROVEMENTS; TENANT'S PROPERTY.
14.1. All fixtures, improvements and appurtenances attached to or
built into the Premises at the commencement of or during
the Term, whether or not by or at the expense of Tenant
("Leasehold Improvements"), shall be and remain a part of
the Premises, shall be the property of Landlord and shall
not be removed by Tenant, except as expressly provided in
Section 14.2.
14.2. All movable partitions, business and trade fixtures,
machinery and equipment, communications equipment and
office equipment located in the Premises and acquired by or
for the account of Tenant, without expense to Landlord,
which can be removed without structural damage to the
Project, and all furniture, furnishings and other articles
of movable personal property owned by Tenant and located in
the Premises (collectively "Tenant's Property") shall be
and shall remain the property of Tenant and may be removed
by Tenant at any time during the Lease Term; provided that
if any of Tenant's Property is removed, Tenant shall,
within ten (10) days thereafter or the Expiration Date,
whichever occurs first, repair any damage to the Premises
or to the Building resulting from such removal,
15. RULES AND REGULATIONS.
Tenant agrees to comply with (and cause its agents, contractors
employees and invitees to comply with) the rules and regulations
attached hereto as Exhibits "D", "E" and "E-1" and with such
reasonable modifications and additions thereto as Landlord may from
time to time make which shall apply uniformly to all tenants of the
Project. Landlord shall not be responsible for any violation of said
rules and regulations by other tenants or occupants of Page 8 of the
Project or their agents, contractors or invitees.
16. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights, exercisable without liability
to Tenant for (i) damage or injury to property, person or business,
(ii) causing an actual or constructive eviction, from the Premises,
or (iii) disturbing Tenant's use or possession of the premises:
a. To name the Project and to change the name or
street address of the Project;
b. To change the size, location, nature and use of
the common areas, so long as such changes do not
materially affect Tenant's use of the Premises;
c. To install and maintain all signs on the exterior
and interior of the Project;
d. To have pass keys to the Premises and all doors
within the Premises, excluding Tenant's vaults
and safes;
e. At any time during the Lease Term, and on
reasonable prior notice to Tenant, to inspect the
Premises, and to show the Premises to any
prospective purchaser or mortgagee of the
Project, or to any assignee of any mortgage on
the Project, or to others having an Interest in
the Project or Landlord, and during the last six
months of the Lease Term, to show the Premises to
prospective tenants thereof and post signs; and
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f. To enter the Premises for the purpose. of making
inspections, repairs, alterations, additions or
improvements to the Premises or the Project
(including, without limitation, checking,
calibrating, adjusting or balancing controls and
other systems), and to take all steps as may be
necessary or desirable for the safety,
protection, maintenance or preservation of the
Premises or the Project or Landlord's interest
herein, or as may be necessary or desirable for
the operation or improvement of the Project or in
order to comply with laws, orders or requirements
of any governmental authority. Landlord agrees to
use its best efforts (except in an emergency) to
minimize interference with Tenant's business in
the Premises in the course of any such entry.
17. ASSIGNMENT AND SUBLETTING.
No assignment or hypothecation of this Lease or sublease of all or
any part of the Premises shall be permitted, except as provided in
this Section 17.
a. Tenant shall not, without the prior written
consent of Landlord, assign or hypothecate this
Lease or any interest herein or sublet the
Premises or any part thereof, or permit use of
the Premises by any party other than Tenant. Any
of the foregoing acts without such consent shall
be void and shall, at the option of Landlord,
terminate this Lease. This Lease shall not, nor
shall any interest of Tenant herein, be
assignable by operation of law without the prior
written consent of Landlord.
b. If, at any time or from time to time during the
Lease Term, Tenant desires to assign or otherwise
transfer this Lease or sublet all or any part of
the Premises, Tenant shall give thirty (30) days
prior written notice to Landlord setting forth
the provisions of the proposed assignment or
sublease, the name, address and business of the
proposed assignee or subtenant, information
concerning the character, ownership and financial
condition of the proposed assignee or subtenant,
the proposed date of the assignment or sublease,
any ownership or commercial relationship between
Tenant and the proposed assignee or subtenant,
the consideration and all other material terms
and conditions of the proposed transfer, all in
such detail as Landlord shall reasonably require.
In addition, Tenant shall promptly supply
Landlord with such additional information
concerning the proposed transfer as Landlord may
reasonably request. Landlord shall have the
option, exercisable by written notice given to
Tenant within twenty (20) days after Tenant's
notice is given, either to permit a proposed
sublease of such space at the rental and on the
other terms set forth in this Lease for the term
set forth in Tenant's notice, or, in the case of
an assignment, to terminate this Lease. If
Landlord does not exercise such option, Tenant
may assign the Lease or sublet such space to such
proposed assignee or subtenant on the following
further conditions:
(i) Landlord shall have the right to
approve such proposed assignee or
subtenant, which approval shall not be
unreasonably withheld;
(ii) The assignment or sublease shall be on
the same terms set forth in the notice
given to Landlord,
(iii) No assignment or sublease shall be
valid and no assignee or sublessee
shall take possession of the Premises
until an executed counterpart of such
assignment or sublease has been
delivered to Landlord;
(iv) No assignee or sublessee shall have a
further right to assign the lease or
sublet the Premises except on the
terms herein contained; and
(v) Fifty percent (50%) of any sums or
other economic consideration received
by Tenant as a result of such
assignment or subletting, however
denominated under the assignment or
sublease, which exceed, in the
aggregate, (i) the total sums which
Tenant is obligated to pay Landlord
under this Lease (prorated to reflect
obligations allocable to any portion
of the Premises subleased), plus (ii)
any real estate brokerage commissions
or fees payable in connection with
such assignment or subletting, shall
be paid to Landlord as additional rent
under this Lease without affecting or
reducing any other obligations of
Tenant hereunder.
c. If Tenant is a corporation, partnership or other
entity, the transfer of controlling interest of
Tenant during the terms shall constitute an
assignment for purposes of this Section 17.
d. Notwithstanding the provisions of Paragraphs
17(a) and 17(b) above, Tenant may assign this
Lease or sublet the Premises or any portion
thereof, without Landlord's consent and without
extending any recapture or termination option to
Landlord, to any corporation or entity which
controls, is controlled by or is under common
control with Tenant, or to any corporation
resulting from a merger or consolidation with
Tenant, or to any person or entity which acquires
all the assets of Tenant's business as a going
concern, provided that (i) the assignee or
sublessee assumes, in full, the obligations of
Tenant under this Lease, (ii) Tenant remains
fully liable under this Lease, and (iii) the use
of the Premises under Section 9 remains
unchanged.
e. No subletting or assignment shall release Tenant
of Tenant's obligations under this Lease or alter
the primary liability of Tenant to pay the Rent
and to perform all other obligations to be
performed by Tenant hereunder. The acceptance of
Rent by Landlord from any other person shall not
be deemed to be a waiver by Landlord of any
provision hereof. Consent to one assignment or
subletting shall not be deemed consent to any
subsequent assignment or subletting. In the event
of default by an assignee or subtenant of Tenant
or any successor of Tenant in the performance of
any of the terms hereof, Landlord may proceed
directly against Tenant without the necessity of
9 of 17 INITIALS ____ ____
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exhausting remedies against such assignee,
subtenant or successor. Landlord may, if Tenant
does not provide Landlord with a current mailing
address to notify Tenant, consent to subsequent
assignment of the Lease or subletting or
amendments or modifications to the Lease with
assignees of Tenant, without notifying Tenant,
and without obtaining its or their consent
thereto and any such actions shall not relieve
Tenant of liability under this Lease.
f. If Tenant assigns the Lease or sublets the
Premises or requests the consent of Landlord to
any assignment or subletting or if Tenant
requests the consent of Landlord for any act that
Tenant proposes to do, then Tenant shall, upon
demand, pay Landlord an administrative fee of
five hundred and 00/100 Dollars ($500.00) plus
any attorneys' fees reasonably incurred by
Landlord in connection with such act or request.
Such administrative fee shall be increased
annually by the same percentage as Annual Base
Rent is increased pursuant to Section 6.2 hereof.
18. HOLDING OVER.
If after the expiration or earlier termination of the Term, as it may
be extended, Tenant remains in possession of the Premises with or
without Landlord's consent (express or implied), Tenant shall become
a tenant from month to month only, upon all the provisions of this
Lease (except as to Lease Term and Annual Base Rent), but the
"Monthly Installments of Annual Base Rent" payable by Tenant shall be
increased to one hundred fifty percent (150%) of the Monthly
Installments of Annual Base Rent payable by Tenant at the expiration
of the Lease Term. Such monthly rent shall be payable in advance on
or before the first day of each month. If either party desires to
terminate such month to month tenancy, it shall give the other party
not less than thirty (30) days advance written notice of the date of
termination.
19. SURRENDER OF PREMISES.
a. Tenant shall peaceably surrender the Premises to
Landlord on the Expiration Date, in broom-clean
condition and in as good condition as when Tenant
took possession, except for (i) reasonable wear
and tear, (ii) loss by fire or other casualty,
and (iii) loss by condemnation. On or before the
Expiration Date, Tenant shall, on Landlord's
request, remove Tenant's Property and repair all
damage to the Premises or Building caused by such
removal.
b. If Tenant abandons or surrenders the Premises, or
is dispossessed of the Premises by process of law
or otherwise, any of Tenant's Property left on
the Premises shall be deemed to be abandoned,
and, at Landlord's option, title shall pass to
Landlord under this Lease as by a bill of sale.
If Landlord elects to remove all or any part of
such Tenant's Property, the cost of removal,
including repairing any damage to the Premises or
Building caused by such removal, including court
costs and attorneys' fees and storage charges on
such effects, for any length of time that the
same shall be in Landlord's possession, shall be
paid by Tenant. Landlord may, at its option,
without notice, sell said effects, or any of the
same at private sale and without legal process,
for such price as Landlord may obtain and apply
the proceeds of such sale upon any amounts due
under this Lease from Tenant to Landlord and upon
the expense incident to the removal and sale of
said effects. On the Expiration Date, Tenant
shall surrender all keys to the Premises.
20. DESTRUCTION OR DAMAGE.
a. If the Premises or the portion of the Project
reasonably necessary for Tenant's occupancy is
damaged by fire, earthquake, act of God, the
elements or other casualty, Landlord shall,
subject to the provisions of this Section,
promptly repair the damage, if such repairs can,
in Landlord's opinion, be completed within ninety
(90) days. If Landlord determines that repairs
can be completed within ninety (90) days, this
Lease shall remain in full force and effect.
b. If in Landlord's opinion, such repairs to the
Premises or any portion of the Project reasonably
necessary for Tenant's occupancy cannot be
completed within ninety (90) days, Landlord may
elect, upon written notice to Tenant given within
thirty (30) days after the date of such fire or
other casualty, to repair such damage, in which
event this Lease shall continue In full force and
effect, or if Landlord does not so elect to make
such repairs, this Lease shall terminate as of
the date of such fire or other casualty. If,
however, the damage is limited to the interior of
the Premises, then if Landlord does not elect to
repair the Premises, Tenant shall have the
option, at its expense, by written notice to
Landlord within fifteen (15) days after receipt
of Landlord's notice that it will not repair, to
repair the Premises and then keep this Lease in
effect. If Tenant shall repair the premises, then
any insurance proceeds attributable to the damage
may be used by Tenant to pay the cost of such
repair.
c. If the Premises are to be repaired under this
Section, Landlord shall repair at its cost any
injury or damage to the Project outside of the
Premises and shall pay the cost of restoring the
Premises to their condition prior to the damage,
except that Tenant shall be responsible for
payment of the cost of the repair, restoration
and replacement of any Leasehold Improvements and
Tenant's Property in excess of the Tenant's
Improvements established in the Addendum,
Paragraphs 47 and 48 and the attached Exhibit
"C". Landlord shall not be liable for any loss of
business, inconvenience or annoyance arising from
any repair or restoration of any portion of the
Premises or the Project as a result of any damage
from fire or other casualty.
d. This Lease shall be considered an express
agreement governing any case of damage to or
destruction of the Premises or the Project by
fire or other casualty, and any present or future
law
10 of 17 INITIALS ____ ____
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which purports to govern the rights of
Landlord and Tenant in such circumstances in the
absence of express agreement, shall have no
application.
21. EMINENT DOMAIN.
a. If the whole of the Project or Premises is
lawfully taken by condemnation or in any other
manner for any public or quasi-public purpose,
this Lease shall terminate as of the date of such
taking, and Rent shall be prorated to such date.
If less than the whole of the Project or Premises
is so taken, this Lease shall be unaffected by
such taking, provided that (i) Tenant shall have
the right to terminate this Lease by written
notice to Landlord given within ninety (90) days
after the date of such taking if twenty percent
(20%) or more of the Premises is taken and the
remaining area of the Premises is not reasonably
sufficient for Tenant to continue operation of
its business, or if such portion of the Project
other than the Premises is taken which makes it
reasonably impossible for Tenant to carry on its
operations, and (ii) Landlord shall have the
right to terminate this Lease by written notice
to Tenant given within ninety (90) days after the
date of such taking if the taking shall include
the Building of which the Premises are a part. If
either Landlord or Tenant so elects to terminate
this Lease, the Lease shall terminate on the
thirtieth (30th) day after either such notice.
The Rent shall be prorated to the date of
Termination. If this Lease continues in force
upon such partial taking, the Annual Base Rent
and Tenant's Proportionate Share of Project
Operating Expenses shall be equitably adjusted
according to the remaining Area of the Premises
and Project.
b. In the event of any taking, partial or whole, all
of the proceeds of any award, judgment or
settlement payable by the condemning authority
shall be the exclusive property of Landlord, and
Tenant hereby assigns to Landlord all of its
right, title and interest in any award, judgment
or settlement from the condemning authority.
Tenant, however, shall have the right, to the
extent that Landlord's award is not reduced or
prejudiced, to claim from the condemning
authority (but not from Landlord) such
compensation as may be recoverable by Tenant in
its own right for relocation expenses and damage
to Tenant's personal property and after damage
recoverable by Tenant under applicable laws.
c. In the event of a partial taking of the Premises
which does not result in a termination of this
Lease, Landlord shall restore the remaining
portion of the Premises as nearly as practicable
to its condition prior to the condemnation or
taking, but only to the extent of the Tenant
Improvement allowance established pursuant to
Addendum, Paragraphs 47 and 48 and the attached
Exhibit "C". Tenant shall be responsible at its
sole cost and expense for the repair, restoration
and replacement of any other leasehold
improvements and Tenant's Property.
22. INDEMNIFICATION.
a. Tenant shall indemnify and hold Landlord harmless
against and from liability and claims of any kind
for loss or damage to property of Tenant,
Landlord, or any other person, or for any injury
to or death of any person, arising out of: (i)
Tenant's use and occupancy of the Premises, or
any work, activity or other things allowed or
suffered by Tenant to be done in or on the
Premises; (ii) any breach or default by Tenant of
any of Tenant's obligations under this Lease;
(iii) any negligent or otherwise tortuous act or
omission of Tenant, its agents, employees,
invitees or contractors. Tenant shall, at
Tenant's expense, and by counsel satisfactory to
Landlord, defend Landlord in any action or
proceeding arising from any such claim and shall
indemnify Landlord against all costs, attorneys'
fees, and any other expenses incurred in such
action or proceeding. As a material part of the
consideration for Landlord's execution of this
Lease, Tenant hereby assumes all risk of damage
or injury to any person or property in, on or
about the Premises or Project from any cause,
except to the extent due to Landlord's gross
negligence or intentional misconduct.
b. Landlord shall not be liable for injury or damage
which may be sustained by the person or property
of Tenant, its employees, invitees or customers,
or any other person in or about the Premises or
Project, caused by or resulting from fire,
explosion, falling plaster, steam, electricity,
gas, water or rain which may leak or flow or into
any part of the Premises, or from the breakage,
leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures, or from any
other cause whatsoever, whether such damage or
injury results from conditions arising upon the
Premises or upon other portions of the Project
except to the extent resulting from the willful
misconduct or gross negligence of Landlord.
Landlord shall not be liable for any damage
arising from any act or omission of any other
tenant of the Project.
c. Notwithstanding the provisions of Section 22(a)
and (b) to the contrary, Landlord or its agents
shall not be liable for (i) any damage to any
property entrusted to employees of the Building,
(ii) loss or damage to any property by theft or
otherwise. Landlord, its agents, employees and
invitees shall not be liable for interference
with light or other incorporeal hereditaments,
nor shall Landlord be liable for any latent
defect on the Premises or in the Building. Tenant
shall give prompt notice to Landlord in case of
fire or accidents on the Premises or in the
Building or of defects therein or in the fixtures
or equipment.
23. TENANT'S INSURANCE.
a. The minimum limits of policies of insurance
required of Tenant under this Lease shall in no
event limit the liability of Tenant under this
Lease. All insurance required to be carried by
Tenant hereunder shall (i) be issued by an
insurance company having a General Policyholders
Rating of
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B+ or better and a financial size of "VI" or
better, as set forth in the most current issue of
Best's Rating Guide and licensed to do business
in the State of California; (ii) name Landlord,
Landlord's agent if any, and at Landlord's
request any mortgagee of Landlord, as an
additional insured, as their respective interests
may appear; (iii) be an occurrence policy (or
policies); (iv) contain a cross-liability
endorsement and contractual liability
endorsement; (v) contain a provision that such
policy and the coverage evidenced thereby shall
be primary and non-contributing with respect to
any policies carried by Landlord and that any
coverage carried by Landlord shall be excess
insurance; and (vi) include a waiver by the
insurer of any right of subrogation against
Landlord, its agent, employees and
representatives, which arises or might arise by
reason of any payment under such policy or by
reason of any act or omission of Landlord, its
agents, employees or representatives. A
certificate of the insurer evidencing the
existence and amount of each insurance policy
required hereunder shall be delivered to Landlord
before the date Tenant is first given the right
of possession of the Premises, and thereafter
within thirty (30) days after any demand by
Landlord therefor. Landlord may, at any time and
from time to time, inspect and/or copy any
insurance policies required to be maintained by
Tenant hereunder. Tenant shall furnish Landlord
with renewals to "binders" of any such policy at
least ten days prior to the expiration thereof.
Tenant agrees that if Tenant does not take out
and maintain such insurance, Landlord may (but
shall not be required to) procure said insurance
on Tenant's behalf and charge the Tenant the
premiums together with a twenty-five percent
(25%) handling charge, payable upon demand.
Tenant shall have the right to provide such
insurance coverage pursuant to blanket policies
obtained by the Tenant, provided such blanket
policies expressly afford coverage to the
Premises, Landlord, Landlord's agent and
mortgagee and Tenant as required by this Lease.
Renewal certificates shall be regularly provided
to Landlord at such times as renewal certificates
are regularly provided to all other landlords of
Tenant. Such certificates shall provide that
Tenant's insurer shall endeavor to provide
Landlord with thirty (30) days/prior written
notice of any cancellation or modification of
Tenant's insurance coverage.
b. Beginning on the date Tenant is given access to
the Premises for any purpose and continuing until
expiration of the Lease Term, Tenant shall
procure, pay for and maintain in effect policies
of casualty insurance covering (i) all Leasehold
Improvements (including any alterations,
additions, or improvements as may be made by
Tenant pursuant to the provisions of Section 13
hereof), and (ii) trade fixtures, merchandise and
other personal property from time to time in, on
or about the Premises, in an amount not less than
one hundred percent (100%) of their actual
replacement cost from time to time, providing
protection against any peril included with the
classification `Fire and Extended Coverage"
together with insurance against sprinkler damage,
vandalism and malicious mischief. The proceeds of
such insurance shall be used for the repair or
replacement of the property so insured. Upon
termination of this Lease following a casualty as
set forth herein, the proceeds under (i) above
shall be paid to Landlord, and the proceeds under
(ii) above shall be paid to Tenant.
c. Beginning on the date Tenant is given access to
the Premises for any purpose and continuing until
expiration of the Lease Term, Tenant shall
procure, pay for and maintain in effect workers'
compensation insurance as required by law and
comprehensive public liability and property
damage insurance with respect to the construction
of improvements on the Premises, the use,
operation or condition of the Premises and the
operations of Tenant in, on or about the
Premises, providing personal injury and broad
form property damage coverage for not less than
$1,000,000.00 combined single limit for bodily
injury, death and property damage liability.
d. Not less than every two years during the Lease
Term, Landlord and Tenant shall mutually agree to
increases in all of Tenant's Insurance policy
limits for all insurance to be carried by Tenant
as set forth in this Section. In the event
Landlord and Tenant cannot mutually agree upon
the amounts of said increases, then Tenant agrees
that all insurance policy limits as set forth in
this Section shall be adjusted for increases in
the cost of living in the same manner as is set
forth in Section 6.2 hereof for the adjustment of
the Annual Base Rent.
24. WAIVER OF SUBROGATION.
Landlord and Tenant each hereby waive all rights of recovery against
the other and against the officers, employees, agents and
representatives of the other, on account of loss by or damage to the
waiving party or its property or the property of others under its
control, to the extent that such loss or damage is insured against
under any fire and extended coverage insurance policy which either
may have in force at the time of the loss or damage. Tenant shall,
upon obtaining the policies of insurance required under this Lease,
give notice to its insurance carrier or carriers that the foregoing
mutual wavier of subrogation is contained in this Lease.
25. SUBORDINATION AND ATTORNMENT.
Upon written request of Landlord, or any mortgage or deed of trust
beneficiary of Landlord, or ground lessor of Landlord, Tenant shall,
in writing, subordinate its rights under this Lease to the lien of
any mortgage or deed of trust, or to the interest of any lease in
which Landlord is lessee, and to all advances made or hereafter to be
made thereunder. However, before signing any subordination agreement,
Tenant shall have the right to obtain from any lender or lessor of
Landlord requesting such subordination, an agreement in writing
providing that, as long as Tenant is not in default hereunder, this
Lease shall remain in effect for the full Lease Term. The holder of
any security interest may, upon written notice to Tenant, elect to
have this Lease prior to its security interest regardless of the time
of the granting or recording of such security interest.
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In the event of any foreclosure sale or transfer in lieu of
foreclosure, Tenant shall attorn to the purchaser or transferee as
the case may be, and recognize that party, as Landlord, under this
Lease, provided such party acquires and accepts the Premises subject
to this Lease,
26. TENANT ESTOPPEL CERTIFICATES.
Within ten (10) days after written request from Landlord, Tenant
shall execute and deliver to Landlord or Landlord's designee, in
recordable form, a written statement in the form as required by
Landlord certifying (a) that this Lease is unmodified and in full
force and effect, or is in full force and effect as modified and
stating the modifications; (b) the amount of Annual Base Rent and the
date to which Annual Base Rent and additional rent have been paid in
advance; (c) the amount of any security deposited with Landlord; and
(d) that Landlord is not in default hereunder or, if Landlord is
claimed to be in default, stating the nature of any claimed default.
Any such statement may be relied upon by a purchaser, assignee or
lender. Tenant's failure to execute and deliver such statement within
the time required shall, at Landlord's election, be a default under
this Lease without further notice other than that required pursuant
to Section 28.1 hereof and shall also be conclusive upon Tenant that:
(1) this Lease is in full force and effect and has not been modified
except as represented by Landlord; (2) there are no uncured defaults
in Landlord's performance and that Tenant has no right of offset,
counterclaim or deduction against Rent; and (3) not more than one
month's Rent has been paid in advance.
27. TRANSFER OF LANDLORD'S INTEREST.
In the event of any sale or transfer by Landlord of the Premises or
the Project, and assignment of this Lease by Landlord, Landlord shall
be and is hereby entirely freed and relieved of any and all liability
and obligations contained in or derived from this Lease arising out
of any act, occurrence or omission relating to the Premises, Project
or Lease occurring after the completion of such sale or transfer, and
Landlord's successor shall be solely responsible for all obligations
of Landlord under this Lease. If any security deposit or prepaid Rent
has been paid by Tenant, Landlord may transfer the security deposit
or prepaid Rent to Landlord's successor and upon such transfer,
Landlord shall be relieved of any and all further liability with
respect thereto. Tenant shall fully and properly cooperate in the
completion of such transfer
28. DEFAULT.
28.1. Tenant's Default. The occurrence of any one or more of the
following events shall constitute a default and breach of this
Lease by Tenant:
a. If Tenant abandons or vacates the Premises; or
b. If Tenant fails to pay any Rent or any additional
rent or any other charges required to be paid by
Tenant under this Lease and such failure
continues for three (3) days after written notice
thereof from Landlord (so long as the form of any
such notice complies with statutory requirements,
any such notice and the opportunity to cure shall
be in lieu of and not in addition to the notice
required in order to commence unlawful detainer
proceedings); or
c. If Tenant fails promptly and fully to perform any
non-monetary covenant, condition or agreement
contained in this Lease and such failure
continues for thirty (30) days after written
notice thereof from Landlord to Tenant (so long
as the form of any such notice complies with
statutory requirements, any such notice and the
opportunity to cure shall be in lieu of and not
in addition to the notice required in order to
commence unlawful detainer proceedings); or
d. If a writ of attachment or execution is levied on
this Lease or on any of Tenant's Property; or
e. If Tenant makes a general assignment for the
benefit of creditors, or provides for an
arrangement, composition, extension or adjustment
with its creditors; or
f. If Tenant files a voluntary petition for relief
or if a petition against Tenant in a proceeding
under the federal bankruptcy laws or other
insolvency laws is filed and not withdrawn or
dismissed within forty-five (45) days thereafter,
or if under the provisions of any law providing
for reorganization or winding up of corporations,
any court of competent jurisdiction assumes
jurisdiction, custody or control of Tenant or any
substantial part of its property and such
jurisdiction, custody or control remains in force
unrelinquished, unstayed or unterminated for a
period of forty-five (45) days; or
g. If in any proceeding or action in which Tenant is
a party, a trustee, receiver, agent or custodian
is appointed to take charge of the Premises or
Tenant's Property (or has the authority to do so)
for the purpose of enforcing a lien against the
Premises or Tenant's Property; or
h. If Tenant is a partnership or consists of more
than one person or entry, if any partner of the
partnership or other person or entity is involved
in any of the acts or events described in
subparagraphs (d) through (g) above.
28.2. Remedies. In the event of Tenant's default hereunder, then
in addition to any other rights or remedies Landlord may
have under any law, Landlord shall have the right, at
Landlord's option, without further notice or demand of any
kind to do the following:
a. Terminate this Lease and Tenant's right to
possession of the Premises and reenter the
Premises and take possession thereof, and Tenant
shall have no further claim to the Premises or no
further claim under this Lease; or
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b. Maintain Tenant's right to possession, in which
case this Lease shall continue in effect whether
or not Tenant shall have abandoned the premises.
This remedy is intended to be the remedy
described in California Civil Code Section
1951.4. In such event, Landlord shall be entitled
to enforce all of Landlord's rights and remedies
under this Lease, including the right to recover
the rent as it becomes due hereunder; and/or
c. Reenter the Premises under the provisions of
subparagraph (b), and thereafter elect to
terminate this Lease and Tenant's right to
possession of the Premises.
If Landlord reenters the Premises under the provisions of
subparagraphs (b) or (c) above, Landlord shall not be
deemed to have terminated this Lease or the obligation of
Tenant to pay any Rent or other charges thereafter
accruing, unless Landlord notifies Tenant in writing of
Landlord's election to terminate this Lease. In the event
of re-entry or retaking of possession by Landlord, Landlord
shall have the right, but not the obligation, to remove all
or any part of Tenant's Property in the Premises and to
place such property in storage at a public warehouse at the
expense and risk of Tenant. If Landlord elects to relet the
Premises for the account of Tenant, the rent received by
Landlord from such reletting shall be applied as follows:
first, to the payment of any indebtedness other than Rent
due hereunder from Tenant to Landlord; second, to the
payment of any costs of such reletting; third, to the
payment of the cost of any alterations or repairs to the
Premises; fourth, to the payment of Rent due and unpaid
hereunder; and the balance, if any, shall be held by
Landlord and applied in payment of future Rent as it
becomes due. If that portion of rent received from the
reletting which is applied against the Rent due hereunder
is less than the amount of the Rent due, Tenant shall pay
the deficiency to Landlord within five (5) days after
demand by Landlord. Such deficiency shall be calculated and
paid monthly. Tenant shall also pay to Landlord, within
five (5) days of the demand, any costs and expenses
incurred by Landlord in connection with such reletting or
in making alterations and repairs to the Premises which are
not covered by the rent received from the reletting.
28.3. Damages. Should Landlord elect to terminate this Lease
under the provisions of subparagraph 28.2(a) or (c) above,
Landlord may recover as damages from Tenant the following:
a. Past Rent. The worth at the time of the award of
any unpaid Rent which had been earned at the time
of termination; plus
b. Rent Prior to Award. The worth at the time of the
award of the amount by which the unpaid Rent
which would have been earned after termination
until the time of award exceeds the amount of
such rental loss that Tenant proves could have
been reasonably avoided; plus
c. Rent After Award. The worth at the time of the
award of the amount by which the unpaid Rent for
the balance of the Term after the time of award
exceeds the amount of the rental loss that Tenant
proves could be reasonably avoided; plus
d. Proximately Caused Damages. Any, other amount
necessary to compensate Landlord for all
detriment proximately caused by Tenant's failure
to perform its obligations under this Lease or
which in the ordinary course of things would by
likely to result therefrom, including, but not
limited to, any costs or expenses (including
attorneys' fees), incurred by Landlord in (i)
retaking possession of the Premises, (ii)
maintaining the Premises after Tenant's default,
(iii) preparing the Premises for reletting to a
new tenant, including any repairs or alterations,
and (iv) reletting the Premises, including
brokers' commissions.
"The worth at the time of the award" as used in
subparagraphs (a) and (b) above, is to be
computed by allowing interest on the unpaid rent
at the rate of twelve percent (12%) per annum or
by allowing interest at the maximum rate an
individual is permitted to charge by law,
whichever is greater. "The worth at the time of
the award" as used in subparagraph (c) above, is
to be computed by discounting the amount at the
discount rate of the Federal Reserve Bank of San
Francisco at the time, of the award plus one
percent.
28.4. Waiver: Cumulative. The waiver by Landlord of any breach of
any term, covenant or condition of this Lease shall not be
deemed a waiver of such term, covenant or condition or of
any subsequent breach of the same or any other term;
covenant or condition. Acceptance of Rent by Landlord
subsequent to any breach hereof shall not be deemed to be a
waiver of any preceding breach other than the failure to
pay the particular Rent so accepted, regardless of
Landlord's knowledge of any breach at the time of such
acceptance of Rent. Landlord shall not be deemed to have
waived any term, covenant or condition unless Landlord
gives Tenant written notice of such waiver. Landlord's
exercise of any right of remedy shall not prevent it from
exercising any other right or remedy which may be provided
by law or this Lease, whether or not stated in this Lease.
The termination of this Lease under this Article 16 shall
not release Tenant from obligations arising as a result of
any acts or omissions occurring prior to such expiration or
termination, including, without limitation, any indemnity
obligations of Tenant and any obligations of Tenant under
Article 7 of this Lease and all such obligations shall
survive such termination.
29. BROKERAGE FEES.
Tenant warrants and represents that it has not dealt with any real
estate broker or agent in connection with this Lease or its
negotiation other than Newport National Corporation, who represents
the Landlord, and Business Real Estate, Rick Reeder, who represents
the Tenant. Tenant shall indemnify and hold Landlord harmless from
any cost, expense or liability (including costs of suit and
reasonable attorneys' fees) for any compensation, commission or
14 of 17 INITIALS ____ ____
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fees claimed by any other real estate broker or agent in connection
with this Lease or its negotiation by reason of any act of Tenant.
30. NOTICES.
All notices, approvals and demands permitted or required to be given
under this Lease shall be in writing and deemed duty served or given
when actually delivered if personally delivered or within three (3)
business days after deposit in the mail if sent by certified or
registered U.S. mail, postage prepaid, or return receipt requested.
Such notices shall be addressed as follows: (a) if to Landlord, to
Landlord's Mailing Address and to the Building Manager, and (b) If to
Tenant, to Tenant's Mailing Address; provided however, notices to
Tenant or Landlord shall be deemed duly served or given if personally
delivered or mailed to Landlord at its offices. Landlord and Tenant
may from time to time by notice to the other designate another place
for receipt of future notices.
31. GOVERNMENT ENERGY OR UTILITY CONTROLS.
In the event of imposition of federal, state or local government
controls, rules, regulations, or restrictions on the use or
consumption of energy or other utilities during the Term, both
Landlord and Tenant shall be bound thereby. In the event of a
difference in interpretation by Landlord and Tenant or any such
controls, the interpretation of Landlord shall prevail, and Landlord
shall have the right to enforce compliance therewith, including the
right of entry Into the Premises to effect compliance.
32. QUIET ENJOYMENT.
Tenant, upon paying the Rent and performing all of its obligations
under this Lease, shall peaceably and quietly enjoy the Premises,
subject to the terms of this Lease and to any mortgage, lease, or
other agreement to which this Lease may be subordinate.
33. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed by Landlord
or Tenant which is due to strikes, labor disputes, inability to
obtain labor, materials, equipment or reasonable substitutes
therefor, acts of God, governmental restrictions or regulations or
controls, judicial orders, enemy or hostile government actions, civil
commotion, fire or other casualty, or other causes beyond the
reasonable control of the party obligated to perform hereunder, shall
excuse performance of the work by that party for a period equal to
the duration of that prevention, delay or stoppage. Nothing in this
Article 33 shall excuse or delay Tenant's obligation to pay Rent or
other charges under this Lease in a timely manner.
34. CURING TENANT'S DEFAULTS.
If Tenant defaults in the performance of any of its obligations under
this Lease, Landlord may (but shall not be obligated to) without
waiving such default, perform the same for the account and at the
expense of Tenant. Tenant shall pay Landlord all costs plus a
reasonable percentage mark-up to cover general conditions and fees of
such performance within ten (10) days upon receipt of a bill
therefor.
35. LIMITATION OF LIABILITY.
In consideration of the benefits accruing hereunder, Tenant agrees
that, if Landlord is a partnership, in the event of any actual or
alleged failure, breach or default of this Lease by Landlord,
a. The sole and exclusive remedy shall be against
the assets of such partnership;
b. No partner of Landlord shall be sued or named as
a party in any suit or action (except as may be
necessary to secure jurisdiction of the
partnership);
c. No service of process shall be made against any
partner of Landlord (except as may be necessary
to secure jurisdiction of the partnership);
d. No partner of Landlord shall be required to
answer or otherwise plead to any service of
process;
e. No judgment may be taken against any partner of
Landlord;
f. Any judgment taken against any partner of
Landlord may be vacated and set-aside at any time
without hearing;
g. No writ of execution will ever be levied against
the assets of any partner of Landlord; and
h. These covenants and agreements are for the
benefit of and shall be enforceable both by
Landlord and by any partner of Landlord.
Tenant agrees that each of the foregoing provisions shall be
applicable to any covenant or agreement either expressly contained in
this Lease or imposed by statute or at common law.
36. BUILDING PLANNING.
In the event Landlord requires the Premises for use in conjunction
with another suite or for other reasons connected with the Building
planning program, upon notifying Tenant in writing, Landlord shall
have the right to move Tenant to other space in the Building of which
the Premises forms a part, at Landlord's sole cost and expense, and
the terms and conditions of the original Lease shall remain in full
force and effect, save and excepting that a revised Exhibit 48
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shall become part of this Lease and shall reflect the location of the
new space. However, if the new space does not meet with Tenant's
reasonable approval, Tenant shall have the right to cancel this Lease
upon giving Landlord thirty (30) days notice within ten (10) days of
receipt of Landlord's notification. In no event shall Landlord
relocate Tenant during the first (1st) year of the Original Lease
Term. Any relocation shall be to space which is substantially similar
In size, dimensions and configuration to the Premises. Landlord shall
reimburse Tenant for all reasonable expenses incurred by Tenant In
relocating including, but not limited to, moving expenses, phone
transfer charges, and the cost of changing the address on business
stationery and business cards.
37. MISCELLANEOUS.
a. Accord and Satisfaction; Allocation of Payments.
No payment by Tenant or receipt by Landlord of a
lesser amount than the Rent provided for in this
Lease shall be deemed to be other than on account
of the earliest due Rent, nor shall any
endorsement or statement on any check or letter
accompanying any check or payment as Rent, be
deemed an accord and satisfaction, and Landlord
may accept such check or payment without
prejudice to Landlord's right to recover the
balance of the Rent or pursue any other remedy
provided for in this Lease. In connection with
the foregoing, Landlord shall have the absolute
right in its sole discretion to apply any payment
received from Tenant to any account or other
payment of Tenant then not current and due or
delinquent.
b. Addenda. If any provision contained in an
addendum to this Lease is inconsistent with any
other provision herein, the provision contained
in the addendum shall control, unless otherwise
provided in the addendum.
c. Attorneys' Fees. If any action or proceeding is
brought by either party against the other
pertaining to or arising out of this Lease, the
prevailing party shall be entitled to recover all
costs and expenses, including reasonable
attorneys' fees, incurred on account of such
action or proceeding. In addition, if Landlord
incurs attorneys fees and/or costs in enforcing
or seeking to enforce any right of indemnity set
forth in the Lease, all such attorneys' fees and
costs shall be recoverable and deemed within the
scope of such indemnity and/or this attorneys'
fees provisions.
d. Captions and Section Numbers. The captions
appearing within the body of this lease have been
inserted as a matter of convenience and for
reference only and in no way define, limit or
enlarge the scope or meaning of this Lease. All
references to Section numbers refer to Sections
in this Lease unless expressly stated otherwise.
e. Changes Requested. Neither Landlord or Tenant
shall unreasonably withhold its consent to
changes or amendments to this Lease requested by
a lender that holds Landlord's interest as
security, or by any prospective purchaser of the
Project, so long as these changes do not alter
the basic business terms of this Lease or
otherwise materially diminish any rights or
materially increase any obligations of the party
from whom consent to such change of amendment is
requested.
f. Choice of Law. This Lease shall be construed and
enforced in accordance with the laws of the State
of California.
g. Consent. Notwithstanding anything contained in
this Lease to the contrary, Tenant shall have no
claim, and hereby waives the right to any claim
against Landlord for money damages by reason of
any refusal, withholding or delaying by Landlord
of any consent, approval or statement of
satisfaction, and in such event, Tenant's only
remedies therefor shall be an action for specific
performance, injunction or declaratory judgment
to enforce any right to such consent, approval or
statement of satisfaction.
h. Corporate Authority. If Tenant is a corporation,
each individual signing this Lease on behalf of
Tenant represents and warrants that he is duly
authorized to execute and deliver this Lease on
behalf of the corporation and that this Lease is
binding on Tenant in accordance with its terms.
Tenant shall, at Landlord's request, deliver a
certified copy of a resolution of its Board of
Directors authorizing such execution.
i. Counterparts. This Lease may be executed in
multiple counterparts, all of which shall
constitute one and the same Lease.
j. Execution of Lease, No Option. The submission of
this Lease to Tenant shall be for examination
purposes only and does not and shall not
constitute a reservation of or option for Tenant
to lease, or otherwise create any interest of
Tenant in the Premises or any other premises
within the Building or Project. Execution of this
Lease by Tenant and its return to Landlord shall
not be binding on Landlord notwithstanding any
time interval, until Landlord has in fact signed
and delivered this Lease or a counterpart to
Tenant.
k. Furnishing of Financial Statements: Tenant's
Representations. In order to induce Landlord to
enter into this Lease, Tenant agrees that it
shall within thirty (30) days furnish Landlord,
from time to time, upon Landlord's written
request, with published annual and/or quarterly
reports reflecting Tenant's current financial
condition. Tenant represents and warrants that
all financial statements, records and information
furnished by Tenant to Landlord in connection
with this Lease are true, correct and complete in
all respects.
l. Further Assurances. The parties agree to promptly
sign all documents reasonably requested to give
effect to the provisions of this Lease.
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m. Prior Agreements: Amendments. This Lease contains
all of the agreements of the parties with respect
to any matter covered or mentioned in this Lease,
and no prior agreement of understanding
pertaining to any such matter shall be effective
for any purpose. No provisions of this Lease may
be amended or added to except by an agreement in
writing signed by the parties or their respective
successors in interest.
n. Recording. Tenant shall not record this Lease
without the prior written consent of Landlord.
Tenant, upon the request of Landlord, shall
execute and, acknowledge a "short form"
memorandum of this Lease for recording purposes
in form and content satisfactory to both parties.
The party requesting that a short form lease be
recorded shall be responsible for paying any
costs incurred in connection therewith.
o. Severability. A final determination by a court of
competent jurisdiction that any provision of this
Lease is invalid shall not affect the validity of
any other provision, and any provision so
determined to be invalid shall to the extent
possible, be construed to accomplish its intended
effect.
p. Successors and Assigns. This Lease shall apply to
and bind the permitted successors and assigns of
the parties.
q. Time of the Essence. Time is of the essence in
this Lease.
r. Waiver. No delay or omission in the exercise of
any right or remedy of Landlord upon any default
by Tenant shall impair such right or remedy or be
construed as a waiver of such default.
The receipt and acceptance by Landlord of
delinquent Rent shall not constitute a waiver of
any other default: it shall constitute only a
waiver of timely payment for the particular Rent
payment involved.
No act or conduct of Landlord including, without
limitation, the acceptance of keys to the
Premises, shall constitute an acceptance of the
surrender of the Premises by Tenant before the
expiration of the Term. Only a written notice
from Landlord to Tenant shall constitute
acceptance of the surrender of the Premises and
accomplish a termination of the Lease.
Landlord's consent to or approval of any act by
Tenant requiring Landlord's consent or approval
shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of
any subsequent act by Tenant.
Any waiver by Landlord of any default must be in
writing and shall not be a waiver of any other
default concerning the same or any other
provision of the Lease.
s. Mortgagee Protection. In the event of any default
on the part of Landlord, Tenant will give notice
by registered or certified mail to any
beneficiary of a deed of trust or mortgage
covering the Premises whose address shall have
been furnished to Tenant, and shall offer such
beneficiary of mortgagee a reasonable opportunity
to cure the default, including time to obtain
possession of the Premises by power of sale or a
judicial foreclosure, if such should prove
necessary to effect a cure.
t. Identification of Tenant. If more than one person
executes this Lease as Tenant:
(i) Each of them is jointly and severally
liable for the keeping, observing and
performing of all of the terms,
covenants, conditions, provisions and
agreements of this Lease to be kept,
observed and performed by Tenant, and
(ii) The term "Tenant" as used in this
Lease shall mean and include each of
them jointly and severally. The act of
or notice from or notice or refund to,
or the signature of any one or more of
them, with respect to the tenancy of
this Lease, including, but not limited
to any renewal, extension, expiration,
termination or modification of this
Lease, shall be binding upon each and
all of the persons executing this
Lease as Tenant with the same force
and effect as if each and all of them
had so acted or so given or received
such notice or refund or so signed.
u. Exhibits and Addenda. All exhibits and addenda
attached to this Lease are incorporated herein by
this reference and shall be deemed a part of this
Lease.
Notwithstanding anything to the contrary contained herein,
the obligations of Tenant hereunder shall not extend beyond
what is commercially reasonable given the particularities
of the project and such premises.
38. WAIVER OF LANDLORD'S LIEN.
The terms of any statutory lien provisions notwithstanding, in no
event shall Landlord have a lien on, interest in or any other right
to any computer hardware, computer peripherals or computer software,
in whatever form, which may be or may have been on the Premises at
any time during the term of this Lease.
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The parties hereto have executed this Lease as of the date first above written.
AGREED AND ACCEPTED: AGREED AND ACCEPTED:
LANDLORD: TENANT:
The Campus, LLC, Viasat, Inc.,
a California Limited Liability Company a California corporation,
By: Newport National Corporation,
a California corporation
Its: Manager By: _______________________________
Greg Monahan
By: _________________________ Its: Vice President
Jeffry A. Brusseau
Its: Senior Vice President/CCO Date: _____________________________
Date: _______________________
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