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Exhibit 10.7
LEASE
39899 BALENTINE DRIVE
NEWARK, CA 94560
Lessor:
AJ PARTNERS LIMITED PARTNERSHIP
Lessee:
LEASECOMM CORPORATION
Managed by:
DRAPER AND KRAMER OF CALIFORNIA, INCORPORATED
39899 BALENTINE DRIVE
NEWARK, CA 94560
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TABLE OF CONTENTS
1. BASIC LEASE TERMS ................................................ 1
2. TERM; POSSESSION; SURRENDER....................................... 4
2.1 Term....................................................... 4
2.2 Possession................................................. 4
2.3 Surrender.................................................. 4
3. BASE RENT......................................................... 4
4. ADDITIONAL RENT................................................... 5
4.1 Real Estate Taxes.......................................... 5
(a) Definitions............................................ 5
(b) Time of Payment........................................ 6
4.2 Operating Expenses......................................... 6
(a) Definitions............................................ 6
(b) Time of Payment; Records and Inspection................ 7
4.3 Consumer Price Index....................................... 8
(a) Escalation............................................. 8
(b) Definition............................................. 8
4.4 Other Elements of Additional Rent.......................... 8
4.5 Late Payment............................................... 8
5. SECURITY DEPOSIT.................................................. 8
6. CONSTRUCTION; ALTERATIONS......................................... 9
6.1 Initial Construction....................................... 9
6.2 Alteration; Lessee's Work.................................. 9
6.3 Removal or Retention of Alterations........................ 9
7. HOLDING OVER...................................................... 9
8. USE............................................................... 10
8.1 Basic Use.................................................. 10
8.2 Specific Matters........................................... 10
9. LESSEE'S TAX...................................................... 10
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9.1 Taxes On Lessee or its Property............................ 10
9.2 Certain Reimbursement of Lessor............................ 11
10. CONDITION OF PREMISES............................................. 11
11. BUILDING SERVICES................................................. 11
11.1 Utilities ................................................. 11
11.2 Excess Usage by Lessee..................................... 11
11.3 Public Facilities; Cleaning and Janitorial................. 12
11.4 Addition Work or Service; Cost as Additional Rent.......... 12
11.5 No Warranty; Waiver of Lessor's Liability.................. 12
12. ASSIGNMENT AND SUBLETTING; CHANGE IN OWNERSHIP OF
LESSEE............................................................ 12
12.1 Lessor's Consent Required.................................. 12
(a) Effect of Unapproved Sublet............................ 12
(b) Certain Effects of Consent............................. 13
12.2 Lessor's Right to Terminate................................ 13
12.3 Change in Ownership of Lessee.............................. 13
(a) Corporation or Partnership............................. 13
(b) Proprietorship......................................... 13
(c) Notice to Lessor....................................... 14
13. CARE OF PREMISES.................................................. 14
13.1 Lessee's Repairs........................................... 14
13.2 Lessor's Repairs........................................... 14
14. RIGHTS RESERVED TO LESSOR......................................... 14
15. DAMAGE TO PROPERTY; INJURY TO PERSON; INSURANCE................... 15
15.1 Indemnification............................................ 15
15.2 Waiver of Certain Claims................................... 16
15.3 Lessee's Insurance......................................... 16
15.4 Personalty; Leasehold Improvements......................... 16
16. FIRE OR CASUALTY.................................................. 16
16.1 Repair; Termination of Lease............................... 16
16.2 Lessee's Property.......................................... 17
17. ACCESS............................................................ 17
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18. CONDEMNATION...................................................... 17
18.1 Substantial Taking......................................... 17
18.2 Insubstantial Taking....................................... 17
18.3 Compensation............................................... 17
19. ABANDONMENT....................................................... 18
20. SALE BY LESSOR.................................................... 18
21. MUTUAL RELEASE; WAIVER OF SUBROGATION............................. 18
22. WAIVER............................................................ 18
22.1 Effect of Waivers and Consents............................. 18
22.2 Certain Waivers by Lessee.................................. 19
23. ESTOPPEL CERTIFICATE.............................................. 19
23.1 Obligation to Provide Certificate.......................... 19
23.2 Effect of Failure to Provide............................... 19
24. INTEREST ON PAST DUE OBLIGATIONS.................................. 19
25. DEFAULTS; REMEDIES; EARLY TERMINATION............................. 19
25.1 Default Defined............................................ 19
25.2 Remedies................................................... 20
(a) In General............................................. 20
(b) Reletting.............................................. 20
(c) Injunctive Relief...................................... 21
25.3 Re-entry: Authorities and Effects.......................... 21
25.4 Additional Remedies: Termination; Costs................... 21
(a) Termination; Damages................................... 21
(b) Recovery of Costs and Expenses......................... 21
26. NOTICES........................................................... 21
27. INABILITY TO PERFORM.............................................. 21
28. SUBORDINATION..................................................... 22
29. SUBSTITUTION OF PREMISES.......................................... 22
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30. BROKERAGE......................................................... 22
31. EXCULPATION....................................................... 22
32. SECURITY.......................................................... 23
33. MISCELLANEOUS..................................................... 23
EXHIBIT A -- Site Plan of Premises
EXHIBIT B -- Location of Premises
EXHIBIT B1 -- Space Plan of Premises
EXHIBIT C -- Rules and Regulations
EXHIBIT D -- Acknowledgement of Lease Commencement
EXHIBIT E -- Addendum
EXHIBIT E1 -- Amended Space Plan
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OFFICE LEASE
Located at 39899 Balentine Drive
Newark, CA 94560
(hereinafter referred to as the "Building")
THIS LEASE, made this 12th day of JULY, 1993 by and between
AJ Partners Limited Partnership ("Lessor"); and
LEASECOMM CORPORATION
a Massachusetts Corporation having its principal place of
business at:
281 Winter Street
Waltham, MA 02154-8716 ("Lessee")
WITNESSETH: That,
Lessor hereby leases to Lessee and the Lessee hereby leases from the
Lessor the Premises described herein for the term, the rent, and subject to the
covenants and conditions herein set forth:
1. BASIC LEASE TERMS
This Paragraph 1 contains the basic Lease terms agreed to between Lessor
and Lessee and referred to elsewhere in this Lease. Each reference in this Lease
to any of the basic Lease terms shall be construed to incorporate all the terms
provided herein under each such basic Lease term:
1.1 PROJECT
The Building (including the Premises) together with the land upon which
it is located and all improvements on such land, the legal description
of which is set forth on Exhibit A annexed hereto (the "Project").
1.2 PREMISES: RENTABLE AND USABLE AREA
(a) PREMISES. The Premises shall be and mean 365 located on the third
floor of the building as designated on the plan attached hereto
as Exhibit B.
(b) RENTABLE AREA. Lessor and Lessee conclusively and finally agree
that the Premises consist of 2,933 rentable square feet (the
"Rentable Area"), and 2,550 usable square feet.
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1.3 INITIAL RENTABLE AREA OF THE PROJECT:
109,626 square feet
1.4 BASE RENT
(a) Base Annual Rent:
Mos 1-16 $13.80 per square foot per year.
Mos 17-32 $14.40 per square foot per year.
Mos 33-48 $15.00 per square foot per year.
(b) Base Monthly Rent:
Months 1 - 16 $3,372.95/month
Months 17 - 32 $3,519.60/month
Months 33 - 48 $3,666.25/month
(c) "Aggregate Annual Rent" means Base Annual Rent multiplied by the
Rentable Area of the Premises.
1.5 ADDITIONAL RENT
(a) Base Tax Amount: $(INCLUDED IN OPERATING AMOUNT) per rentable
square foot per year.
(b) Base Operating Amount: $5.55 per rentable square foot per year.
(c) Base Consumer Price Index: NOT APPLICABLE.
(d) CPI Percentage: NOT APPLICABLE.
1.6 TERM
The term ("Term") of this Lease shall be for FORTY-EIGHT (48) months and
shall commence (the "Commencement Date") at 12:01 a.m. on SEPTEMBER 1,
1993, or such earlier time and date as Lessor permits Lessee to take
possession of the Premises, and shall conclude at 11:59 p.m. on AUGUST
31, 1997, (the "Expiration Date").
1.7 USE
The Premises shall be used as general business offices and for related
uses, specifically LEASE ADMINISTRATION AND COLLECTIONS, and for no
other purpose whatsoever.
1.8 SECURITY DEPOSIT: NONE
1.9 INSURANCE
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(a) Comprehensive General Liability: One Million Dollars
($1,000,000.00) per occurrence.
(b) Property Damage: One Million Dollars ($1,000,000.00) per
occurrence.
(c) Workers Compensation: $ N/A.
(d) Bodily Injury: One Million Dollars ($1,000,000.00) per person,
One Million Dollars ($1,000,000.00) per occurrence.
1.10 BROKER: Draper and Kramer of California, Inc.
1.11 LESSOR'S MAILING ADDRESS:
Draper and Kramer of California, Incorporated
as Manager for AJ Partners Limited Partnership
39899 Balentine Drive
Newark, CA 94560
1.12 RENT
The term "Rent" means Base Rent and Additional Rent, collectively.
1.13 INTEREST ON PAST DUE OBLIGATION: ten percent (10%) per month.
1.14 MISCELLANEOUS:
(a) Lessor to improve the premises in accordance with the preliminary
space plan (exhibit B-1) within standard building finish;
improvements not to exceed Forty thousand Four Hundred Fifty
dollars ($40,450.00); any improvements over and above that
amount, and any changes to the preliminary space plan will be the
sole cost of tenant.
(b) In consideration for this lease, Lessor and Lessee agree that
certain lease dated January 3, 1991, for the premises commonly
known as 39899 Balentine Drive, Suite 265 in Newark, CA 94560,
shall terminate upon commencement of this lease.
2. TERM; POSSESSION
2.1 TERM
The Term of this Lease is as specified in Paragraph 1 hereof.
2.2 POSSESSION
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If the Lessor shall be unable to give possession of the Premises on the
Commencement Date for any reason whatsoever (including, but not limited
to, the Premises not being ready for occupancy), the Lessor (and its
employees, agents and contractors) shall not be subject to any liability
for the failure to give possession on said date. Under such
circumstances, unless the delay is the fault of the Lessee (which fault
shall include, but not be limited to, Lessee's failure to provide Lessor
with plans and specifications relating to any alteration of the Premises
in a timely manner) the Rent shall not commence until the Premises are
available for occupancy by the Lessee, and no such failure to give
possession on the date of commencement of the Term shall in any wise
affect the validity of this Lease or the obligations of the Lessee
hereunder, nor shall same be construed in any wise to extend the term of
this Lease. If, at the Lessee's request, the Lessor shall make the
Premises available to the Lessee prior to the date of commencement of
the Term for the purpose of decorating, furnishing and equipping the
Premises, the use of the Premises for such work shall not create a
landlord-tenant relationship between the parties nor constitute
occupancy of the Premises within the meaning of the next sentence or of
Paragraph 2.2 hereof, but the provisions of this Lease concerning
indemnification, insurance and waiver of claims shall apply. If, with
the consent of the Lessor, the Lessee shall enter into occupancy of the
Premises to do business therein prior to the date of commencement of the
Term, all provisions of this Lease shall apply and the Rent shall accrue
and be payable from the date of occupancy and the Term shall then
commence.
2.3 SURRENDER OF PREMISES; REPAIR; REMOVAL OF EFFECTS
Upon the termination or expiration of this Lease and the Term hereby
created or upon the termination of Lessee's right of possession, whether
by lapse of time or at the option of Lessor by exercise of default
remedies or elsewise, Lessee will at once surrender possession of the
Premises to Lessor in good order, repair and condition, ordinary wear
excepted, and remove all effects therefrom. Without limiting the
generality of the foregoing, Lessee agrees to remove, at the termination
of this Lease, the items of personal property to which Lessee is
entitled under Paragraph 6.3 hereof. All damage to the Premises or the
Project arising out of Lessee's moving of property in or out of the
Building or Project, including damage to floors due to overloading,
shall be fully repaired at Lessee's sole cost and expense. If Lessee
shall fail or refuse to remove all such property from the Premises,
Lessee shall be conclusively presumed to have abandoned the same, and
the title thereto shall thereupon, at Lessor's option upon written
notice to Lessee of Lessor's exercise of such option, pass to Lessor
without any cost either by set off, credit allowance or otherwise, and
Lessor may, at its option as defined under this section, accept the
title to such property, or, at Lessee's expense, (a) remove the same or
any part thereof in any manner that Lessor shall choose and (b) store
the same without incurring liability to Lessee or any other person.
3. BASE RENT
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Lessee shall pay Lessor the Base Monthly Rent in lawful money of the
United States which shall be legal tender at the time of payment, in advance on
the first day of each calendar month during the Term (or earlier as contemplated
by Paragraph 2.2 hereof), at Lessor's Mailing Address (as set forth in Paragraph
1) or at such other place as Lessor may from time to time so designate in
writing, except that the first month's rent shall be paid upon the execution
hereof. Rent shall be paid, in every instance, without notice, deduction or
setoff. The installment of rent payable for any portion, less than all, of a
calendar month shall be a pro rata portion of the Rent payable for a full
calendar month.
4. ADDITIONAL RENT
4.1 REAL ESTATE TAXES
Lessee shall pay to Lessor, as Additional Rent, in addition to Base Rent
and other amounts due Lessor, an amount (the "Tax Contribution") equal
to the product of: (1) the Rentable Area of the Premises; multiplied by
(2) the amount by which Taxes Per Foot exceeds the Base Tax Amount.
(a) DEFINITIONS
(i) "Taxes Per Foot" means Taxes divided by the Total
Rentable Area of the Project (being initial Rentable Area
of the Project increased or reduced by any additions or
deletions of rentable area to or from the Project);
(ii) "Taxes" means and includes:
(1) all real estate taxes and assessment (whether
general or special), sewer rents, rates and
charges, transit taxes, rent tax (as hereinafter
defined), and any other federal, state or local
governmental charge, tax or the like, general,
special, ordinary or extraordinary, which may now
or hereafter be levied or assessed against or in
connection with the Project or any element
thereof, or with respect to the ownership,
leasing, management control or operation thereof,
including state equalization factor, if any;
(2) ad valorem or other taxes for or upon Lessor's
personal property used in, on, around or in
conjunction with the Project;
(3) any taxes or the like which shall be levied in
lieu of any of the above stated taxes, including,
but not limited to, any ax, assessment, levy or
charge on rents received from the Project or any
portion thereof, or a charge, fee, or a tax on
Lessor which is otherwise related to the Project,
or an income or franchise tax;
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(4) any assessment, special assessments or
installments thereof (including interest on such
installments) against the Project which shall be
required to be, or may be, paid during the
calendar year in respect to which Taxes are being
determined, provided, however, the amount of
special assessments to be included shall be
limited to the amount of the installment (plus any
interest payable thereon) of such special
assessment which would have been required to have
been paid during such year if the Lessor had
elected to have such special assessment paid over
the maximum period of time permitted by law; and
(5) the fees and costs associated with contesting the
foregoing (including, but not to be limited to,
such expenses as relate to seeking or obtaining
reductions in and refunds of Taxes, including but
not limited to the expenses of contesting the
amount or validity of any taxes, charges or
assessments, including, but not limited to,
appraisers' fees, experts' fees and other costs
incurred without regard to the tax year involved,
such expense to be applicable to the year in which
such charges are incurred).
(iii) "Rent Tax" means and includes any excise, sales or
transaction privilege tax imposed or levied by any
government or government agency upon Lessor as a result
of Lessor's receipt of any payment from Lessee, and also
means and includes any tax or other charge based in whole
or in part upon the value of this Lease, or upon receipt,
payment or right to collect Rent hereunder; provided,
however, there is excluded herefrom any tax, charge,
assessment or the like which is imposed in lieu of real
estate taxes and other ad valorem taxes.
(b) TIME OF PAYMENT
Lessee shall pay the Tax Contribution to Lessor with respect to
each calendar year in monthly installments at the same time and
place as installments of Base Monthly Rent are to be paid, in an
amount estimated from time to time by Lessor by a written notice
to Lessee. Upon receipt by Lessor of all bills for Taxes
attributable to a calendar year, Lessor shall furnish Lessee with
a written statement of the actual Tax Contribution for such
calendar year. If the total amount paid by Lessee during any
calendar year of the Term is less than the actual Tax
Contribution due from Lessee for such calendar year as shown on
such statement, Lessee shall pay the deficiency to Lessor within
fifteen (15) days after demand therefor by Lessor. If the total
amount paid by Lessee during any calendar year exceeds the actual
Tax Contribution due from Lessee for such calendar year, such
excess shall be credited against payments hereunder next due. If
no such payments are next due, such excess shall be refunded by
Lessor. The
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amount of any refund of Taxes received by Lessor. The amount of
any refund of Taxes received by Lessor shall be credited against
Taxes for the year in which such refund is received.
4.2 OPERATING EXPENSES
Lessee shall pay to Lessor, as Additional rent, in addition to Base Rent
and other amounts due Lessor, an amount (the "Operating Contribution")
equal to the product of: (1) the Rentable Area of the Premises
multiplied by (2) the amount by which Operating Expenses Per Foot
exceeds the Base Operating Amount.
(a) DEFINITIONS
(i) "Operating Expenses Per Foot" means Operating Expenses
divided by the Total Rentable Area of the Project (being
the Initial Rentable Area increase or reduced by any
additions or deletions of rentable area to or from the
Project).
(ii) "Operating Expenses" means and includes all cost and
expenses incurred or paid by or on behalf of Lessor with
respect to the operation, maintenance, repair, or
replacement of the Project (except same relating to the
premises of individual tenants when the expense is
reimbursed to Lessor by the tenant or an insurer)
including, but not limited to, the following: the cost of
electricity (except electricity used in the Premises or
in other demised premises, if the cost thereof is billed
directly to Lessee and the tenants of such other demised
premises) all utilities, steam, water, fuel, heating,
lighting, air-conditioning, window cleaning, janitorial
service security service; all insurance (including, but
not limited to, fire, extended coverage, liability,
workman's compensation, rent loss, elevator, any other
insurance carried in good faith by Lessor and applicable
to the Project), painting (but not painting of the space
of individual tenant), uniforms, supplies, sundries, and
sales or use taxes on supplies or services; costs of
compensation, wages, salaries and so-called fringe
benefits (including Social Security taxes, unemployment
insurance taxes, cost for providing coverage for
disability benefits, cost of any pensions,
hospitalization, welfare or retirement plans) of all
persons engaged in the operation, maintenance and repair
of the Project, or any other similar or like expenses
incurred under the provisions of any collective
bargaining agreement, or any other cost or expense which
Lessor pays or incurs to provide benefits for employees
so engaged in the operation, maintenance and repair of
the Project; the charges of any agent or independent
contractor who, under contract with Lessor or its
representatives, does any of the work of operating,
maintaining or repairing of the Project; management fees;
legal and accounting expenses; or any other expense or
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charge, whether or not hereinbefore mentioned, which in
accordance with generally accepted management principles
would be considered as an expense of maintaining,
operating, or repairing the Project. If any Operating
Expense, though paid in one year, relates to more than
one calendar year, at the option of Lessor, such expense
may be proportionately allocated among such related
calendar years.
Operating Expenses shall also include the cost, as
reasonable amortized by the Lessor, of any capital
improvement made after completion of initial construction
of any improvements in the Project which reduces other
Operating Expenses, but in an amount not to exceed such
reduction for the relevant year. For purposes of
determining Operating Expenses for any year, if the
entire Rentable Area shall not have been occupied for any
part of the year, Operating Expenses shall include the
amount of such expenses that would reasonably have been
incurred had the entire Rentable Area been occupied.
Operating Expenses shall not include franchise or income
taxes imposed on the Lessor, except to the extent
hereinbefore provided, nor the cost to the Lessor of any
work or service performed in any instance for any tenant
(including the Lessee) at the cost of such tenant.
Installations of capital improvements for individual
tenants within their demised premises is not to be
included in Operating Expenses.
If Lessor makes any capital improvement during the term
of this Lease in order to comply with safety or any other
requirements of any federal, state or local law or
governmental regulation, then the reasonable annual
amortization of the cost of such improvement (with
reasonable interest thereon) shall be deemed an Operating
Expense in each of the calendar years during which such
amortization occurs.
(b) TIME OF PAYMENT; RECORDS AND INSPECTION
(i) PAYMENT. Lessee shall pay the Operating Contribution to
Lessor with respect to each calendar year in monthly
installments at the same time and place as Base Monthly
Rent is to be paid, in an amount reasonably estimated
from time to time by Lessor by a written notice to
Lessee. As promptly as practicable following the close of
each calendar year, Lessor shall deliver to Lessee a
certificate specifying, in reasonable detail, the amount
of Operating Expenses for such calendar year; Lessee
shall pay any deficiency to Lessor as shown by such
certificate within fifteen (15) days after receipt
thereof. If the total amount paid by Lessee during any
calendar year exceeds the actual Operating Contribution
due from Lessee for such calendar year, such excess shall
be credited against payments next
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due hereunder. If no such payments are next due, such
excess shall be refunded by Lessor.
(ii) RECORDS AND INSPECTION. Lessor shall cause to be kept
books and records with an appropriate system of accounts
and accounting practices consistently maintained. Lessee
shall have the right for sixty (60) days after receipt of
the certificate, during normal business hours after
reasonable notice, to inspect records pertinent to
Lessor's calculations and Lessor shall make all pertinent
bills and the like available for Lessee's inspection. The
certificate of Lessor shall constitute a determination
which is final and conclusive on both Lessor or Lessee,
unless Lessee asserts in a writing addressed to Lessor
specified error(s) in Lessor's certificate within sixty
(60) days after delivery thereof.
4.3 CONSUMER PRICE INDEX ESCALATION
(a) ESCALATION
In the event of the Base Consumer Price Index set forth in
Paragraph 1 above shall be less than the Consumer Price Index for
the month of January of each calendar year during the Term of
this Lease, Lessee shall pay to Lessor on a monthly basis, as
Additional Rent, a sum equal to one-twelfth of the following: the
CPI Percentage of the Aggregate Annual Rent multiplied by the
percentage by which the Consumer Price Index for January of such
calendar year exceeds the Base Consumer Price Index. Lessor shall
notify Lessee of any such Additional Rent as soon as reasonably
practicable after the beginning of each calendar year during the
Lease Term; Lessee shall be required to pay Additional Rent based
on increases in the Consumer Price Index with respect to the
period between the beginning of the calendar year and the date of
receipt of the Lessor's notice of such increased rent with the
payment of Rent next due. In the event that the Base Consumer
Price Index is not set forth in Paragraph 1, then such shall be
the Consumer Price Index for the month which includes the
Commencement Date; if the CPI Percentage is not set forth in
Paragraph 1, then such shall be thirty percent (30%).
(b) DEFINITION
"Consumer Price Index" or "CPI" means the Consumer Price Index -
All Urban Consumer - for San Francisco/Oakland (all items) of the
U.S. Bureau of Labor Statistics. If the manner in which the
Consumer Price Index is determined by the Bureau of Labor
Statistics shall be substantially revised, and adjustment shall
be made in such revised index which would produce results
equivalent, as nearly as possible, to those which would have been
obtained if the Consumer Price Index had not been so revised. If
the Consumer Price Index shall become unavailable to
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the public because publication is discontinued, or otherwise,
Lessor will substitute therefor a comparable index base upon
changes in the cost of living or purchasing power of the consumer
dollar published by any other governmental agency or, if no such
index shall be available, then a comparable index published by a
major bank or other major financial institution or by a major
university.
4.4 OTHER ELEMENTS OF ADDITIONAL RENT
All costs and expenses which Lessee assumes or agrees to pay to Lessor
pursuant to this Lease shall be deemed Additional Rent and shall be paid
to Lessor without any deduction or set-off whatsoever. In the event of
non-payment of such cost and expenses, Lessor shall have all the rights
and remedies herein provided for in case of non-payment of Rent.
4.5 LATE PAYMENT
Any remedies for non-payment of Rent notwithstanding, if the monthly
payment of Rent is not received by Lessor on or before the fifth (5th)
day of the month for which such Rent is due, or if any other payment due
Lessor by Lessee is not received by Lessor on or before the fifth (5th)
day of the month following the month in which Lessee was invoiced, a
service charge of ten percent (10%) of such past due amount shall become
due and payable in addition to such amounts owed under this Lease.
5. SECURITY DEPOSIT
Lessee has deposited with lessor the sum of set forth in Paragraph 1 as
a Security Deposit to secure the full and faithful performance of every
provision of this Lease to be performed by Lessee. If Lessee defaults with
respect to any provision of this Lease, including, but not limited to, the
provisions relating to the payment of Rent or any other sum, or for the payment
of any other amount which Lessor may spend or become obligated to spend by
reason of Lessee's default or to compensate Lessor for any other loss or damage
which Lessor may suffer by reason of Lessee's default, Lessor may use, apply or
retain the Security Deposit, or any portion thereof, to reimburse or compensate
itself or cure such default. If any portion of said deposit is so used or
applied, Lessee shall, within five (5) days after written demand therefor,
deposit cash with Lessor in an amount sufficient to restore the security deposit
to its original amount and Lessee's failure to do so shall be a material breach
of this Lease. Lessor shall not be required to keep this security deposit
separate from its general funds and Lessee shall not be entitled to interest on
such deposit. If Lessee shall fully and faithfully perform every provision of
this Lease to be performed by it, the security deposit or a balance thereof
shall be returned to lessee (or, at Lessor's option, to the last assignee of
Lessee's interests hereunder) at the expiration of the Lease term.
6. CONSTRUCTION; ALTERATIONS
6.1 INITIAL CONSTRUCTION
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Lessor agrees to cause the Premises to be completed or modified (the
"Work") in accordance with the plans, specifications and agreements
approved by both parties, which are attached to and made a part of this
Lease. Lessor will not be obliged to construct or install at its expense
any improvements or facilities of any kind other than those called for
on the attached specifications and agreements. Lessor agrees to commence
and complete the Work with reasonable diligence.
6.2 ALTERATION: LESSEE'S WORK
Lessee shall make no alterations, modifications, additions or
improvements (including initial tenant improvement) to the Premises
without the prior written consent of Lessor, which consent shall not be
unreasonably withheld Lessor may impose, as a condition of such consent,
such requirements as Lessor in its sole discretion may deem reasonable
or desirable, including, without limiting the generality of the
foregoing, requirements as to the manner in which, the time or times at
which, and the contractor by whom such work shall be done, insurance and
bonding standards, and advance waivers of lien.
6.3 REMOVAL OR RETENTION OF ALTERATIONS AND ADDITIONS
All alterations, additions, improvements, modification, fixtures,
partitions, counter, railings, wall coverings, window treatments and the
like shall become or remain the property of Lessor and shall be
surrendered with the Premises, as a part thereof, at the end of the term
hereof, except that the Lessor may, by written notice to Lessee given at
least thirty (30) days prior to the end of the Term, require Lessee to
remove any or all partitions, alterations, additions, improvements,
modifications, fixtures, counters, railings, wall coverings, window
treatments and the like installed by or for Lessee, and to repair any
damage to the Premises from such removal.
7. HOLDING OVER
If the Lessee retains possession of the Premises or any part thereof
after the expiration of the Term or termination of the Lease or of Lessee's
right to possession of the Premises, the Lessee shall pay the Lessor monthly
rent at one hundred fifty percent (150%) of the monthly rate (including, but not
limited to, Base Rent, Tax Contribution and Operating Contribution) payable by
Lessee with respect to the last full calendar month prior to such expiration or
termination for the time the Lessee thus remains in possession and, in addition
thereto, shall pay the Lessor for all damages, consequential as well as direct,
sustained by reason of the Lessee's retention of possession. The provision of
this Paragraph do not exclude the Lessor's rights of re-entry or any other right
hereunder, it being expressly understood that a hold over is a material breach
of this Lease.
8. USE
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8.1 BASIC USE
Lessee shall use and occupy the Premises for the purposes set forth in
Paragraph 1 hereof and for no other purpose.
8.2 SPECIFIC MATTERS
Lessee shall:
(i) Not use or permit upon the Premises anything that would
invalidate any policies of insurance now or hereafter carried on
the Project or that will increase the rate of insurance on the
Premises or on the Project;
(ii) Pay all extra insurance premiums which may be caused by the use
which Lessee shall make of the Premises;
(iii) Not use or permit upon the Premises anything that may be
dangerous to life or limb;
(iv) Not in any manner deface or injure the Building, the Project or
any part thereof or overload any floor of the Premises;
(v) Not do anything or permit anything to be done upon the Premises
in any way tending to create a nuisance, or tending to disturb
any other lessee in the Building or the occupants of neighboring
property, or tending to injure the reputation of the Project;
(vi) Comply with all governmental, health and police requirements and
regulations respecting the Premises and the Project;
(vii) Not use the Premises for lodging or sleeping purposes or for any
immoral or illegal purpose, nor conduct or permit to be conducted
upon the Premises any activity contrary to any of the laws of the
United States of America or the state in which the Project is
located or which is contrary to the ordinances of the
municipality in which the Project is located nor commit or suffer
to be committed any waste upon the Premises or the Project.
(viii) Not take or permit to be taken or fail to take any action which
permits or causes any mechanic's lien or other lien, charge or
order for money to be filed against Lessor, all or any portion of
the Premises or all or any portion of the Project.
(ix) Lessee shall not exhibit, sell or offer for sale on the Premises,
in the Building or on the Project any article or thing without
the advance consent of Lessor.
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(x) Abide by the Rules and Regulations of the Project, as same may
exist from time to time or be amended by Lessor, the current
Rules and Regulations being appended hereto as EXHIBIT C.
9. LESSEE'S TAXES
9.1 TAXES ON LESSEE OR ITS PROPERTY
Lessee shall pay, prior to delinquency, all taxes assessed against or
levied upon Lessee's fixtures, furnishings, equipment and other personal
property located in or upon the Premises. Lessee shall cause said
fixtures, furnishings, equipment and other person property to be
assessed and billed separately from the Lessor, Project or Premises. In
the event any or all of Lessee's fixtures, furnishings or equipment and
other personal property shall be assessed and taxes with said Project or
Premises or to Lessor, Lessee shall pay to Lessor its share of such
taxes within fifteen (15) days after delivery to Lessee by Lessor of a
statement in writing setting forth the amount of such taxes applicable
to lessee's personal property.
9.2 CERTAIN REIMBURSEMENTS OF LESSOR
Lessee shall, simultaneously with the payment of any sums required
hereunder, reimburse Lessor for any excise, sales or transaction
privilege tax imposed or levied by any government or governmental agency
upon Lessor as a result of Lessor's receipt of any such payment.
10. CONDITION OF PREMISES
Lessee's taking possession shall be conclusive evidence as against the
Lessee that the Premises were in good order and satisfactory condition when
Lessee took possession. No promise of Lessor to alter remodel or improve the
Premises or the Building and no representation respecting the condition of the
Premises or the Building have been made by Lessor to Lessee, other than as may
be contained herein or in a separate rider or work letter attached hereto and
made a part hereof.
11. BUILDING SERVICES
11.1 UTILITIES
Lessor agrees to furnish to the Premises during reasonable hours of
generally recognized business days, to be determined by Lessor, and
subject to the Rules and Regulations, water, heat, electricity, air
conditioning, and any other customary utilities required, in Lessor's
sole judgment, for the comfortable use and occupation of the Premises.
Lessor (and its employees and agents) shall not be liable for, and
Lessee shall not be entitled to, any abatement or reduction of Rent by
reason of Lessor's failure to furnish any of the
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foregoing when such failure is due to any cause beyond the reasonable
control of Lessor. Lessor (and its employees and agents) shall not be
liable, under any circumstances, for loss, however occurring, through or
in connection with or incidental to failure to furnish any of the
foregoing, regardless of the reason for such failure; it is understood
that Lessee shall carry insurance against these risks with waiver of
subrogation in favor of Lessor (and its employees and agents). Lessor
may cause any utility to be separately metered and to be billed directly
to Lessee; in such instance, Lessee shall promptly pay all utility bills
when due.
11.2 EXCESS USAGE BY LESSEE
Lessee will not, without the written consent of Lessor, use any
apparatus or device in the Premises, including, but without limitation
thereto, electronic data processing machines, punch card machines and
machines using current in excess of 110 volts, which will in any way
increase the amount of electricity, water, heat, ventilation, cooling or
other utilities, which would otherwise be furnished or supplied for use
of the Premises as general office space; nor connect with electric
current (except through existing electrical outlets in the Premises) or
water pipes, any apparatus or device for the purposes of using electric
current, water or other utilities. If consumption of electricity, water,
heat, air conditioning or other utilities by Lessee exceeds or can be
expected to exceed that required for normal office use as specified, or
should Lessee request the use of this service at other than the normal
operating hours, Lessor reserves the right to change for such service.
Lessor reserves the right, at Lessor's sole discretion, to separately
assess an extra monthly charge against Lessee (which shall be Additional
Rent) in an amount which, in Lessor's reasonable judgment, compensates
for such excess usage. If Lessee refuses to pay upon demand of Lessor
such extra monthly charge, such refusal shall constitute a breach of the
obligation to pay Rent under this Lease and shall entitle Lessor to the
rights hereinafter granted for such breach and to cease provision of
such utility service beyond normal requirements. Whenever heat
generating machines or equipment are used in the Premises which affect
the temperature otherwise maintained by the air conditioning system,
Lessor reserves the right to install supplementary air conditioning
units in the Premises, and the cost thereof, including the cost of
installation and the cost of operation and maintenance thereof, shall be
paid by Lessee to Lessor upon demand by Lessor as Additional Rent.
11.3 PUBLIC FACILITIES; CLEANING AND JANITORIAL SERVICE
Lessor shall provide public restroom supplies, public area lamp
replacement, window washing with reasonable frequency, and janitor and
cleaning services to the Premises with reasonable frequency during the
times and in the manner that such janitor services are customarily
furnished in general office Building in the area.
11.4 ADDITIONAL WORK OR SERVICE; COST AS ADDITIONAL RENT
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Should Lessee require any additional work or service, other than
services described above or supplied other tenants of the Building
without separate or additional charge, Lessor may, on terms to be agreed
and upon reasonable advance notice by Lessee, furnish such additional
service and Lessee agrees to pay the Lessor as Additional Rent such
charges as may be agreed on, but in no event at a charge less than
Lessor's actual cost plus overhead for the additional services provided,
it being agreed that the cost to the Lessor of such additional services
shall be excluded from Operating Expense.
11.5 NO WARRANTY; WAIVER OF LESSOR'S LIABILITY
It is understood that Lessor does not warrant that any of the services
referred to above, or any other services which Lessor may supply, will
be free from interruption. Lessee acknowledges that any one or more of
such services may be suspended by reason of operation of law, mechanical
breakdown, or other causes beyond the reasonable control of Lessor,
including, but not limited to, acts of God, acts of civil disobedience
or strikes. No such interruption or discontinuance of service shall be
deemed an eviction or disturbance of Lessee's use and possession of the
Premises, or any part thereof, or render Lessor (and its employees and
agents) liable to Lessee for damages by abatement of rent or otherwise,
or relieve Lessee from performance of Lessee's obligation under this
Lease.
12. ASSIGNMENT AND SUBLETTING; CHANGE IN OWNERSHIP OF LESSEE
12.1 LESSOR'S CONSENT REQUIRED
Lessee shall not, either voluntarily or by operation of law, sell,
assign, hypothecate or transfer this Lease, or sublet the Premises or
any part thereof, or permit the Premises or any part thereof to be
occupied by anyone other than Lessee or Lessee's employee, without the
prior written consent of Lessor in each instance. Lessor's consent shall
not be unreasonably withheld; provided, however, that the proposed
assignee or sublessee must be reasonably satisfactory to Lessor as to
credit and character and must occupy the Premises for office purposes
consistent with Paragraph 8 of this Lease and Lessor's commitments to
other tenants. Lessee shall notify Lessor's of its intent to assign or
sublet in writing and shall provide Lessor with a copy of the proposed
sublease or assignment and with any information requested by Lessor;
Lessor shall inform Lessee of its decision within thirty (30) days after
receipt of such notice and all requested information.
(a) EFFECT OF UNAPPROVED ASSIGNMENT OR SUBLET
Any sale, assignment, mortgage, transfer or subletting of this
Lease or the Premises which is not in compliance with the
provisions of this Paragraph 12 shall be a material breach of
this Lease and shall, at Lessor's option, by void and without
effect; with respect thereto Lessor shall have all remedies for
default, including, but not limited to, the right to terminate
this Lease.
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(b) CERTAIN EFFECTS OF CONSENT
The consent of Lessor to any assignment or subletting shall not
be construed as relieving Lessee or any assignee or sublessee
from obtaining the express written consent of Lessor to any
further assignment or subletting or as releasing Lessee from any
liability or obligation hereunder (including, but not limited to,
the obligation to pay Rent), whether or not then accrued;
further, any sublessee or assignee shall be bound by all of the
terms and conditions of this Lease (including, but not limited
to, this Paragraph 12).
12.2 LESSOR'S RIGHT TO TERMINATE
The Lessor reserves the right, should the Lessee request such assignment
or subletting, to release the Lessee from the terms and provisions of
this Lease and the Lessor shall have thirty (30) days to make such
determination. Should the Lessor exercise this right, then the Lease
shall terminate as set forth in Paragraph 2.3 as of the date notice is
given the Lessee.
12.3 CHANGE IN OWNERSHIP OF LESSEE
(a) CORPORATION OR PARTNERSHIP; LESSOR'S RIGHT TO TERMINATE
If Lessee is a corporation or partnership and if the ownership
thereof shall materially change at any time or from time to time
during the term of this Lease from the present composition of
same, or if a substantial portion of the assets of Lessee shall
be sold, assigned or transferred with or without a specific
assignment of this Lease, or, if Lessee shall merge or
consolidate with any firm or corporation, Lessor, at its option,
may, by giving sixty (60) days prior written notice to Lessee,
declare such change a breach of this Lease subject to the
remedies provided for breach in Paragraph 25 hereof.
(i) CORPORATION
Ownership of a corporation shall be deemed to have
materially changed if a number of its shares of any class
or series which constitute thirty-three percent (33%) of
the number thereof outstanding from time to time shall be
transferred by either the owners thereof or by the
corporation, and such transfer or shares shall not first
have been approved in advance in writing by Lessor (which
approval will not be unreasonably withheld).
(ii) PARTNERSHIP
Partnership ownership shall be deemed to have materially
changed if one-third or more of the partners or if
persons or entities holding one-third or
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more of the partnership interests have changed at any
time during the Term of this Lease, or one or more
general partners of a limited partnership have changed at
any time during the Term hereof and such change has not
been approved in advance in writing by Lessor (which
approval will not be unreasonably withheld).
(b) PROPRIETORYSHIP; LANDLORD'S RIGHT TO TERMINATE
If Lessee is a sole proprietorship, Lessor shall have the option,
without prejudice to the remedies available to it hereunder or
otherwise, to terminate this Lease in the event of Lessee's
incapacity or death upon sixty (60) days' prior written notice to
Lessee or his legal representative. If the ownership shall change
or a new party or person acquires an interest without Lessor's
prior written consent (which will not be unreasonably withheld),
such shall be a breach of this Lease and subject to the remedies
set forth in Paragraph 25 hereof.
(c) NOTICE TO LESSOR
Lessee shall immediately give written notice to Lessor of any
change in ownership contemplated by this Paragraph 12.3.
13. CARE OF PREMISES
13.1 LESSEE'S REPAIRS
Lessee, at Lessee's own expense, shall take good care of the Premises
and shall be responsible for the repair of all damage to the Premises
(including, but not limited to, leasehold improvements, fixtures,
carpeting and wall coverings) and the Project, and shall replace or
repair all damaged or broken fixtures, lamps, ballasts, glass and
appurtenance which are made necessary as a result of any use, misuse,
neglect or negligence of Lessee, its employees, agents or invitees.
Lessor shall effect such repairs, and Lessee shall pay Lessor the cost
thereof, as Additional Rent, upon being billed for same, or Lessor shall
have the right to deduct the same from the Security Deposit held by
Lessor. Lessor may, but shall not be required to, enter the Premises at
all reasonable times to make any repairs as Lessor shall desire or deem
necessary to the Premises or to the Building of which the Premises form
a part or to any equipment in or servicing such Building or as Lessor
may be required to do by the order or decree of any court or by any
other governmental authority.
13.2 LESSOR'S REPAIRS
Except as otherwise provided herein, Lessor shall repair and maintain
the Building (including the plumbing, heating, air conditioning and
electrical systems), grounds, common areas, facilities and other
elements of the Project, the cost of such being
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Operating Expenses. Lessor shall not be liable for any failure to make
any repairs or to perform any maintenance unless written notice of the
need for such repairs or maintenance is given to Lessor by Lessee, and
unless Lessor then fails to commence such repairs or perform such
maintenance within a reasonable period of time and thereafter fails to
use due diligence in so doing. Except as provided in Paragraph 16
hereof, there shall be no abatement of rent and no liability of Lessor
(and its employees and agents) by reason of any entry to or interference
with Lessee's business arising from the making of any repairs or
effectuation of any maintenance in or to any portion of the Building or
the Premises or the Project or in or to fixtures, appurtenances and
equipment therein or thereon. Lessee waives the right to make repairs at
Lessor's expense under any provision of statutory or common law now or
thereafter in effect.
14. RIGHT RESERVED TO LESSOR
Lessor has, and shall retain, all rights with respect to the Premises,
Building and Project not expressly granted to Lessee hereunder; such right are,
and shall be, exercisable without notice and without liability to Lessee for
damage or injury to property, person or business and without effecting an
eviction, constructive or actual, or disturbance of Lessee's use or possession
or giving rise to any claims for set off or abatement of Rent. Such rights
include, but are not limited to, the following:
(i) To change the Building's name or street address.
(ii) To install, affix and maintain any and all signs on the exterior,
interior and/or roof of the Building.
(iii) To designate and/or approve, prior to installation, all types of
window shades, blinds, drapes, awnings, window ventilators and
other similar equipment and control all internal lighting, that
may be visible from the exterior lobbies, hallways or other
common areas.
(iv) To show the Premises to prospective tenants at reasonable hours
and if vacated by Lessee, to prepare the Premises for
reoccupancy.
(v) To retain at all times, and to use in appropriate instances, keys
to all doors within and into the Premises. No lock shall be
changed and no new lock shall be installed without the prior
written consent of Lessor.
(vi) To decorate and to make repairs, alterations, additions or
improvements, whether structural or otherwise, in and about the
Building in any part thereof and for such purposes to enter upon
the Premises and, during the continuance of any such work, to
temporarily close doors, entryways, public space and corridors in
the Building and to interrupt or temporarily suspend obligations
hereunder so long as the Premises are reasonable accessible.
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(vii) To have and retain a paramount title to the Premises, free and
clear of any act of Lessee purporting to burden or encumber it.
(viii) To grant or deny to anyone the right to conduct any business or
render any services in or to the Building or the Project,
provided such exclusive right shall not operate to exclude Lessee
from the use expressly permitted herein.
(ix) To require all furniture and similar items to be moved into
and/or out of the Building and Premises only at such times and in
such manner as Lessor shall direct in writing. Movements of
Lessee's property into or out of the Building and within the
Building are entirely at the risk and responsibility of Lessee,
and Lessor reserves the right to require permits before allowing
any such property to be moved into or out of the Building.
(x) To approve or disapprove in writing the placing of vending or
dispensing machines of any kind in or about the Premises.
(xi) To have access for Lessor and other tenants of the Building or
the Project to any mail chutes located on the Premises according
to the rules of the United States Post Office.
(xii) To close the Building after regular working hours and on
Saturday, Sunday and legal holidays, subject, however, to
Lessee's right to admittance under such regulations as Lessor may
prescribe from time to time.
15. DAMAGE TO PROPERTY; INJURY TO PERSONS; INSURANCE
15.1 INDEMNIFICATION
Lessee shall, and does hereby agree to indemnify and hold Lessor and its
employees and agents harmless from any and all loss, cost, liability,
damage or claims arising from Lessee's use of the Premises or the
conduct of its business or from any activity, work or thing done,
permitted or suffered by Lessee (or any of its employees, agents or
invitees) in or about the Premises or the Project, and shall further
indemnify and hold Lessor and its employees and agents harmless from any
and all loss, cost, liability, damage or claims arising from any breach
or default in the performance of any obligation on Lessee's part to be
performed under the terms of this Lease, or arising from any act,
failure to act or negligence of Lessee, or any of its agents or
employees, and from all costs, attorneys' fees, expenses and liabilities
incurred as a result of any such claim or any action or proceeding
brought thereon; and in case any action or proceeding be brought against
Lessor or its employees and agents by reason of any such claim, Lessee,
upon notice from Lessor, shall defend the same at Lessee's expense by
counsel satisfactory to Lessor. Lessee, as a material part of the
consideration to Lessor, hereby assumes all risk of
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damage to property or injury to persons, in, upon, or about the Premises
from any cause which does not result solely and directly from the
negligence of Lessor, and Lessee hereby waives all claims in respect
thereof against Lessor and agrees to carry insurance sufficient to
protect against all such claims (with waiver of subrogation in Lessor's
favor).
15.2 WAIVER OF CERTAIN CLAIMS
Lessor and its employees and agents or anyone authorized to act for
Lessor shall not be liable for any damage to property entrusted to
employees of Lessor, Lessor's agent or the Project, nor for the loss of
or damage to any property by theft or otherwise, nor for any injury or
damage to persons or property resulting from fire, explosion, falling
plaster, steam, gas, electricity, water or rain which may leak from any
part of the Building or from the pipes, appliances or plumbing works
therein, or from the roof, street or subsurface, or from any other place
resulting from dampness or any other cause whatsoever which does not
result solely and directly from the negligence of Lessor. Lessor or its
agents shall not be liable for interference with the natural light, nor
shall Lessor be liable for any latent defect in the Premises or in the
Building. Lessee shall give prompt notice to Lessor of any fire,
accident or defect discovered within the Premises or the Building.
15.3 LESSEE'S INSURANCE
Lessee agrees to carry at its own expense throughout the term of the
Lease, insuring both Lessor (and its employees and agents) and Lessee,
insuring both Lessor (and its employees and agents) and Lessee,
comprehensive public liability insurance and such other insurance
specified in Paragraph 1 hereof, all of which shall be in the amounts
specified in Paragraph 1, insurance customarily carried by entities in
businesses similar to that of Lessee in customary amounts for the size
of Lessee's business, and such other insurances as Lessor may reasonably
request; all insurance shall be placed with insurance companies approved
by Lessor. Lessee shall deliver a Certificate of Insurance to Lessor
prior to the date of occupancy of the Premises and said insurance policy
shall list and protect Lessor and Lessee as their interests may appear
and shall contain an endorsement stating that the insurer agrees to give
no less than thirty (30) days' prior written notice to Lessor in the
event of modification or cancellation thereof.
15.4 PERSONALTY; LEASEHOLD IMPROVEMENTS
Lessee shall carry insurance for the FULL REPLACEMENT VALUE of its
personal property and leasehold improvements, trade fixtures and the
like; Lessor (and its employees and agents) shall be a named or
additional insured on all such policies.
16. FIRE OR CASUALTY
16.1 REPAIR; TERMINATION
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If the Premises or the Building (including machinery and equipment used
in its operation) or the Project is wholly or partially destroyed or
damaged by fire or other casualty which is covered by the usual form of
fire and extended coverage insurance, and if such destruction or damage
is not caused by the act or neglect of Lessee, its agents or servants,
then Lessor shall be obligated to repair and restore the same with
reasonable promptness, unless Lessor elects to terminate this Lease as
hereinafter set forth. In the event the Premises or the Building or the
Project is wholly or partially destroyed or damaged as a result of any
cause, other than the perils covered by the usual form of fire and
extended coverage insurance, or in the event the Premises or the
Building or the Project is destroyed or damaged by any fire or casualty
to the extent of not less than twenty-five percent (25%) of the
replacement cost thereof, then Lessor shall have the option to terminate
this Lease by giving notice to Lessee within sixty (60) days after the
occurrence of such damage or destruction. If Lessor does not terminate
this Lease as provided above, it shall proceed to complete the necessary
restoration or repairs with reasonable diligence and this Lease shall
continue in full force and effect; provided, however, that if any
destruction or damage not caused by the act or neglect of Lessee, its
agents or servant, renders the Premises untenantable, and if this Lease
is not terminated as provided herein by reason of such damage or
destruction, then Rent shall abate during the period beginning with the
date of such destruction or damage and ending with the date when the
Premises are again rendered tenantable by an amount bearing the same
ratio to the total amount of Rent due for such period that the
untenantable portion of the Premises bears to the entire Premises.
16.2 LESSEE'S PROPERTY
Lessor shall in no event be obligated to repair any injury or damage by
fire or other cause or to make any repairs or replacements of any items,
improvements, alterations, modifications or the like installed or
effected by or for the Lessee or at its expense.
17. ACCESS
Lessor, and any one authorized by Lessor, shall have the right to enter
the Premises at all reasonable times for the purpose of examining or inspecting
the same, showing the same to prospective purchasers or lessees of the Premises,
Project or Building, and making such alterations, repairs, improvements or
additions to the Premises or to the Project or Building of which they are a part
as Lessor may deem necessary or desirable. If Lessee shall not personally be
present to open and permit an entry into the Premises at any time when such
entry by Lessor is necessary or permitted hereunder, Lessor may enter by means
of a master key or may enter forcibly, without liability to Lessee except for
any failure to exercise due care of Lessee's property, and without breaching the
terms of this Lease.
18. CONDEMNATION
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18.1 SUBSTANTIAL TAKING
If all or any part of the Premises or the Project is permanently taken
or condemned by any competent authority for any public use or purpose
(including a deed given in lieu of condemnation), or if any adjacent
property or street is so taken or is improved, and such taking,
condemnation or improvements renders the Premises substantially
untenantable, this Lease shall terminate as of the date title vests in
such authority or such improvements is completed, and Base Rent and
Additional Rent shall be apportioned as of such date.
18.2 INSUBSTANTIAL TAKING
If any part of the Premises or the Project is taken or condemned for any
public use or purpose (including a deed given in lieu of condemnation),
or if any adjacent property or street is so taken or so improved, and
this Lease is not terminated pursuant to Paragraph 18.1 hereof, Lessor,
upon receipt and to the extent of the award in condemnation or proceeds
of sale, shall make necessary repairs and restoration (exclusive of
leasehold improvements and personal property installed by Lessee) to
restore the Premises remaining to as near its former condition as
circumstances will permit, and to the Project to the extent necessary to
constitute the portion of same not so taken or condemned as a complete
architectural unit. In the event of any taking or condemnation described
in this Paragraph 18.2, the Rentable Area of the Premises stated in
Paragraph 1 hereof and the Rentable Area of the Project as specified in
this Lease, shall, for the period of such taking, be reduced,
respectively, for all purposes under this Lease (including the
calculation of Rent) by the number of square feet of rentable area of
the Premises, if any, and the Project, if any, so taken or condemned.
18.3 COMPENSATION
Lessor shall be entitled to receive the entire price or award from any
such sale, taking or condemnation without any payment to Lessee, and
Lessee hereby assigns to Lessor all of Lessee's interest, if any, in
such award; provided, however, Lessee shall have the right separately to
pursue against the condemning authority an award in respect of the loss,
if any, to leasehold improvements paid for by Lessee without any credit
or allowance from Landlord and the expense of relocation.
19. ABANDONMENT
Lessee shall not vacate or abandon the Premises at any time during the
Term, and if Lessee shall abandon, vacate or surrender said Premises or be
dispossessed by process of law or otherwise, any personal property belonging to
Lessee and left in the Premises shall be conclusively presumed to be abandoned
and may be kept or disposed of by Lessor as provided in Paragraph 2.3 and
Paragraph 7 hereof. Any such vacation, abandonment, surrender or dispossession
shall be a material breach of this Lease, and Lessor shall have all remedies set
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forth herein or otherwise available at law, equity or elsewise with respect
thereto. The Premises shall be deemed "abandoned" as defined in Paragraph
25.1(i).
20. SALE BY LESSOR
In the event of a sale or conveyance by Lessor of the Project, the
Premises or the Building, the same shall operate to release Lessor from any
future liability upon or with respect to this Lease and any of the covenants or
conditions, express or implied, herein contained in favor of Lessee, and in such
event Lessee agrees to look solely to the successor in interest of Lessor in and
to this Lease with respect to such matters and the performance of Lessor's
obligations hereunder. This Lease shall not be affected by any such sale, and
Lessee agrees to attorn to such successor in interest. If any security deposit
has been made by Lessee hereunder, Lessor may transfer such security deposit to
such successor in interest and thereupon Lessor shall be discharged from any
further liability in reference thereto.
21. MUTUAL RELEASE; WAIVER OF SUBROGATION
Lessor and Lessee each hereby release the other, and the management
agent of the Project, from any and all liability or responsibility for any
direct or consequential loss, injury or damage to the Premises, its contents,
caused by fire or any other casualty, during the Term of this Lease, even if
such fire or other casualty may have been caused by the negligence (but not the
willful act) of the other party or one for whom such party may be responsible.
Inasmuch as the above mutual waivers will preclude the assignment of any
aforesaid claim by way of subrogation (or otherwise) to an insurance company (or
any other person), each party hereto agrees if required by said policies to give
to each insurance company which has issued to it fire and other property
insurance, written notice of the terms of said mutual waivers, and to have said
insurance policies properly endorsed, if necessary, to prevent the invalidation
of said insurance coverage by reason of said waivers.
22. WAIVER
22.1 EFFECT OF WAIVERS AND CONSENTS
No waiver by Lessor of any provision of this Lease or any breach by
Lessee hereunder shall be deemed to be a waiver of any other provision
hereof, or of any subsequent breach by Lessee of the same or any other
provision. Lessor's consent to or approval of any act by Lessee
requiring Lessor's consent or approval shall not be deemed to render
unnecessary the obtaining of Lessor's consent to or approval of any
subsequent act of Lessee whether or not similar to the act so consented
to or approved. No act done by Lessor or anyone authorized by Lessor
during the term of this Lease shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept such surrender
shall be valid unless in writing and signed by Lessor. No agent or
employee of Lessor or of any entity authorized by Lessor shall have any
power to accept the keys to the Premises prior to the termination of
this Lease, and the delivery of the keys to any such
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employee or agent shall not operate as a termination of the Lease or a
surrender of the Premises.
22.2 Certain Waivers by Lessee
Except as provided in Paragraph 25 relating to Lessor's remedies, Lessee
hereby expressly waives the service of any notice of intention to
terminate this Lease or to re-enter the Premises and waives the service
of any demand for payment of rent or for possession and waives the
service of any other notice or demand prescribed by any statute or other
law.
23. ESTOPPEL CERTIFICATE
23.1 OBLIGATION TO PROVIDE CERTIFICATE
Lessee shall, at any time and from time to time, upon not less than ten
(10) days' prior written notice from Lessor, execute, acknowledge and
deliver to Lessor a statement in writing (i) certifying that this Lease
is unmodified and in full force and effect (or if modified, stating the
nature of such modification and certifying that this Lease, as so
modified, is in full force and effect) and the dates to which the rental
and other charges are paid in advance, if any; (ii) acknowledging that
there are not, to Lessee's knowledge, any uncured defaults on the part
of Lessor hereunder, or specifying such default if they are claimed. Any
such statement may be relied upon by any prospective purchaser or
encumbrancer of all or any portion of the real property of which the
Premises are a part.
23.2 EFFECT OF FAILURE TO PROVIDE
Lessee's failure to deliver such statement within such time shall be
conclusive upon Lessee (i) that this Lease is in full force and effect,
without modification except as may be represented by Lessor, (ii) that
there are no uncured defaults in Lessor's performance, (iii) that no
rental has been paid in advance, and (iv) that any other matters
submitted for verification are true. Lessee's failure to provide such
statement within the specified time shall be a material breach of this
Lease.
24. INTEREST ON PAST DUE OBLIGATIONS
Any amount due from Lessee to Lessor hereunder which is not paid when
due shall bear interest at the rate specified in Paragraph 1 hereof (or if none
is so specified at the rate of one and one half percent (1-1/2%) per month from
the due date until paid, unless otherwise specifically provided herein, but the
payment of such interest shall not excuse or cure any default by Lessee under
this Lease.
If the interest rate specified in this Lease is higher than the rate
permitted by law, the interest rate is hereby decreased to the maximum legal
interest rate permitted by law.
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25. DEFAULT; REMEDIES; EARLY TERMINATION
25.1 DEFAULTS DEFINED
The occurrence of any one or more of the following events shall
constitute a material default ("Default") and breach of this Lease by
Lessee:
(i) The vacating, surrender or abandonment of the Premises by lessee
or dispossession by process of law or otherwise. Lessee shall be
deemed to "abandoned" the Premises for all purposes of this
Paragraph 25 in the event Lessee shall not use the Premises in
the conduct of its business for ten (10) or more consecutive
business days, unless Lessee is prevented from doing so by fire,
act of God, casualty or other cause (other than financial or
business causes) beyond Lessee's reasonable control; such non-use
of the Premises shall not be deemed an abandonment thereof if
Lessee continues to pay Rent unless the Premises are on the
ground floor.
(ii) The failure of Lessee to make any payment of Rent or any other
payment required to be made by Lessee hereunder, as and when due,
where such failure shall continue for a period of five (5) days
after written notice thereof from Lessor to Lessee.
(iii) The failure by Lessee to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or
performed by Lessee, other than described above, where such
failure shall continue for a period of fifteen (15) days after
written notice thereof from Lessor to Lessee.
(iv) The making by Lessee of any general assignment, or general
arrangement for the benefit of creditors; the filing by or
against Lessee of a petition to have Lessee adjudged a bankrupt
or a petition for reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition filed
against Lessee, the same is dismissed within sixty (60) days; the
appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or
of Lessee's interest in this Lease, where possession is not
restored to Lessee within thirty (30) days; or the attachment,
execution or other judicial seizure of substantially all of
Lessee's assets located at the Premises or of Lessee's interest
in this Lease where such seizure is not discharged within thirty
(30) days.
25.2 REMEDIES
(a) IN GENERAL
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In the event of any Default by Lessee, at any time thereafter,
and without limiting Lessor in the exercise of any other right or
remedy which Lessor may have by reason of such default or breach,
Lessor may: (i) without terminating the Lease or Lessee's right
to possession of the Premises, hold Lessee responsible for all
terms of this Lease and all damages (including, but not limited
to, consequential damages) resulting from the Default, (ii)
terminate Lessee's right to possession of the Premises and
re-enter the Premises with or without terminating this Lease and
hold Lessee responsible for all terms of this Lease and all
damages (including, but not limited to, consequential damages)
resulting from the Default; (iii) distrain for Rent; or (iv)
pursue any other remedy at law, in equity, by statute or elsewise
available. In the event that Lessor elects to terminate Lessee's
right to possession of the Premises, Lessee shall surrender the
Premises as specified in Paragraph 2.3 hereof.
(b) RELETTING
Lessor shall have no obligation to attempt to relet. Upon
re-entering the Premises, Lessor may relet the Premises or any
part thereof (but giving priority to the letting of other
available space in the Project) for such term, on such conditions
and at such rental as Lessor may deem advisable with the right to
make alterations and repairs to the Premises. Should Lessor elect
to relet, rental received by Lessor from reletting shall be
applied in this order: first, to any indebtedness other than rent
due under this Lease; second, to the payment of any costs of such
reletting; third, to the payment of the cost of any alteration
and repairs to the Premises; fourth, to the payment of Rent due
and unpaid under this Lease; and the remainder, if any, shall be
held by Lessor and applied in payment of future Rent as the same
becomes due and payable under this Lease. Should rentals received
from such reletting during any month be less than that agreed to
be paid during that month by Lessee under this Lease, then Lessee
immediately shall pay and be liable for such deficiency to
Lessor.
(c) INJUNCTIVE RELIEF
In the event of any violation or attempted violation of this
Lease or of any of the terms, covenants or provisions hereof by
Lessee, Lessor shall be entitled to equitable relief (including
but not limited to, restraint by injunction) without waiting for
such violation or attempted violation to become a Default.
25.3 RE-ENTRY: AUTHORITIES AND EFFECTS
Upon any re-entry pursuant hereto, Lessor may remove therefrom all
personal property, fixtures, signs and other property, and such property
may be removed and stored in any place for the account and at the
expense and risk of Lessee. Lessee hereby waives all claims for damages
which may be caused by the re-entry of Lessor and taking possession
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of the Premises, or the removing or storage of the property as herein
provided, and will save Lessor harmless from any loss, cost or damages
occasioned thereby, and no such re-entry shall be considered or
construed to be forcible entry or detainer.
No such re-entry or taking possession by Lessor shall be
construed as an election on its part to terminate this Lease unless a
written notice of such intention is given to Lessee.
25.4 ADDITIONAL REMEDIES: TERMINATION; COSTS
(a) TERMINATION; DAMAGES
At any time that as Default exists, and notwithstanding any reletting
without termination or other action Lessor may have taken in
relation to such Default, Lessor may elect to terminate this
Lease; such election shall be effected by written notice to
Lessee. Should Lessor at any time terminate this Lease for any
Default, in addition to any other remedy Lessor may have, Lessor
may recover from Lessee all damages Lessor may incur by reason
of such breach, including, without limitation, consequential
damages, the cost of recovering the Premises and the present
worth (at the time of such termination) of the Rent and charges
equivalent to rent as reserved in this Lease for the remainder
of the Term.
(b) RECOVERY OF COSTS AND EXPENSES
Lessee shall reimburse Lessor for all costs and expenses
(including, but not limited to, reasonable attorneys' fees)
incurred by Lessor in conjunction with the enforcement of the
terms of this Lease and the exercise of any remedies.
26. NOTICES
All notices to be given by one party to the other under this Lease shall
be in writing, mailed or delivered to each as follows:
(a) To Lessor at the Mailing Address specified in Paragraph 1
hereof.
(b) To Lessee at either the Premises or its principal place
of business specified above.
Such addresses may be changed by written notice to the other party.
Mailed notices shall be sent by United States certified or registered mail,
postage prepaid. Such notices shall be deemed to have been given upon posting in
the United States mail.
27. INABILITY TO PERFORM
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This Lease and the obligations of Lessee hereunder shall not be affected
or impaired because Lessor is unable to fulfill any of its obligations hereunder
or is delayed in doing so, if such inability or delay is caused by reason of any
strike, other labor dispute, FORCE MAJEURE or other cause beyond the reasonable
control of Lessor.
28. SUBORDINATION
Lessor expressly reserves the right, at any time or from time to time,
to place liens and encumbrances on and against the Premises and the Project,
superior in lien and effect to this Lease and the estate created hereby;
provided, however, that any such lien or encumbrances shall provide that the
holder thereof will recognize Lessee's rights hereunder, notwithstanding any
foreclosure of such lien or encumbrance.
If Lessor's interest in the Property is acquired by any ground Lessor,
beneficiary under a Deed of Trust, mortgagee, or purchaser at a foreclosure
sale, Lessee shall attorn to the transferee of or successor to Lessor's interest
in the Property and recognize such transferee or successor as Lessor under the
Lease. Tenant waives the protection of any statute or rule of law which gives,
or purports to give, Lessee any right to terminate this Lease or surrender
possession of the Property upon the transfer of Lessor's interest.
29. SUBSTITUTION OF PREMISES
Lessor may, at its election, upon thirty (30) days' written notice to
Lessee of its desire to do so, exclude the specified leased Premises from the
Lease and substitute other premises (which will, thereafter, be the "Premises")
within the Project therefore, upon the following terms and conditions:
(a) The substituted premises shall contain approximately the same
square footage as the specified leased Premises, without increase
of rental and shall be usable for Lessee's purpose.
(b) Any and all costs necessary or incidental to Lessee's move to the
substituted premises shall be at the sole cost and expense of
Lessor and free of all cost and expense to Lessee.
(c) Upon the expiration of thirty (30) days after such written notice
to Lessee, the substituted premises shall be considered the
leased Premises described in the Lease, for all uses and
purposes, as though originally leased unto Lessee at the time of
the execution and delivery of this Lease, and the specified
leased Premises shall be considered excluded from the Lease.
Lessee's failure to cooperate and to move to the substitute premises in
a timely and orderly fashion shall be a material breach hereof and shall be
deemed to be a holdover of the Premises.
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30. BROKERAGE
Lessee represents and warrants that it has dealt with no broker, agent
or other person in connection with this transaction except as identified in
Paragraph 1 hereof and that no broker, agent or other person brought about this
transaction, other than the Broker identified in Paragraph 1, and the Lessee
agrees to indemnify and hold Lessor harmless from and against any claim by any
other broker, agent or other person claiming a commission or other form of
compensation by virtue of having dealt with or for Lessee with regard to this
leasing transaction. The provisions of this Paragraph shall survive the
termination of this Lease.
31. EXCULPATION
Neither Lessor nor any present or future general or limited partner of
Lessor, or its or their assigns, nor their respective partners, agents,
officers, or employees, shall have any personal liability or any kind or nature,
for or by reason of any matter or thing whatsoever, under or in connection with
this Lease. Lessee shall look solely to the Project for satisfaction of any
claim against Lessor or arising under this Lease. The limitation of liability
provided in this Paragraph is in addition, and not in limitation of, any
applicable limitation on liability provided by law or by any other contract,
agreement or instrument.
32. SECURITY
Lessor has no obligation or responsibility whatsoever to provide or
oversee security or security services for the Premises, the Building or the
Project; but Lessor may, in its sole discretion, provide security or retain a
security service. Lessee (for itself, its employees and agents and any person
claiming through Lessee) hereby releases Lessor and Lessor's employees, agents
and manager from , and waives any and all claims for loss of or damage to person
or property sustained by Lessee (or any employees or agents, or any persons
claiming through Lessee) or by any occupant of the Project, Building or the
Premises or any part thereof relating to, resulting from or in any way deriving
from the effectiveness, sufficiency, insufficiency or absence of security or
security services for or with respect to the Premises, the Building or the
Project.
33. MISCELLANEOUS
(a) All rights and remedies of Lessor under this Lease shall be
cumulative and none shall exclude any other rights and remedies
allowed by law.
(b) The provisions hereof shall apply without regard to the number or
gender of words and expressions unused herein.
(c) Each of the provisions of this Lease shall extend to and shall,
as the case may require, bind or inure to the benefit, not only
of Lessor and of Lessee, but also
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their respective heirs, legal representatives, successors and
assigns, provided this clause shall not permit any assignment
contrary to the provisions of Paragraph 12 hereof.
(d) Submission of this instrument for examination shall not bind
Lessor in any manner, and no lease or obligation of Lessor shall
arise until this instrument is signed and delivered by Lessor and
Lessee.
(e) No rights to light or air over any property, whether belonging to
lessor or any other person, are granted to Lessee by this Lease.
(f) Lessor shall not be responsible to Lessee for the nonperformance
by any other tenant or occupant of the Building of any of the
Rules and Regulations established by the Lessor for the Building.
(g) Clauses, plats and riders, if any, signed by Lessor and Lessee
and endorsed on or affixed to this Lease are a part hereof.
(h) Time is of the essence with respect to the performance of every
provision of this Lease in which time of performance is a factor.
(i) The paragraph captions contained in this Lease are for
convenience only and shall not be considered in the construction
or interpretation of any provision hereof.
(j) This Lease contains all of the agreements of the parties hereto
with respect to any matter covered or mentioned in this Lease,
and no prior agreement or understanding pertaining to any such
matter shall be effective for any purpose. No provision of this
Lease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respective
successors in interest.
(k) This Lease shall be governed by and controlled pursuant to the
laws of the state in which the Project is located.
(l) No receipt of money by the Lessor from the Lessee after the
termination of this Lease or Lessee's right to occupancy of the
Premises, or after the service of any notice, or after the
commencement of any suit, or after final judgment for possession
of the Premises shall reinstate, continue or extend the term of
this Lease or affect any such notice, demand or suit or imply
consent for any action for which Lessor's consent is required.
(m) This Lease shall not be recorded without the consent of Lessor.
(n) In the absence of fraud, no person, firm or corporation, or the
heirs, legal representative, successors and assigns, respectively
thereof, executing this Lease
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as agent shall ever be deemed or held individually liable
hereunder for any reason or cause whatsoever.
(o) In the event of variation or discrepancy, the Lessor's original
copy of the Lease shall control.
(p) If because of any act or omission of Lessee, its employees,
agents, contractors or subcontractors, any mechanic's lien or
other lien, charge or order for the payment of money shall be
filed against Lessor, or against all or any portion of the
Premises or the Building of which the Premises are a part or the
Project, Lessee shall, at its own cost and expense, cause the
same to be discharged of record or give the Lessor a surety bond
of at least 200% of the lien, within thirty (30) days after the
filing thereof, and Lessee shall indemnify and save harmless
Lessor, its employees and agents against and from all costs,
liabilities, suits, penalties, claims and demands, including
reasonable attorneys' fees resulting therefrom.
LESSOR: AJ Partners Limited Partnership LESSEE:
By: Draper and Kramer of California, Inc. Leasecomm Corporation
a California Corporation a Corporation
Its: Manager
/s/ Richard J. Loeber /s/ Stephen E. Obana FOR
- ---------------------------------- --------------------------------
By: Richard J. Loeber By: Mike Lannon
Its: Vice President Its: Vice President
/s/ Lawrence A. Cohen
- ---------------------------------
By: Lawrence A. Cohen
Its: Senior Vice President
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ACKNOWLEDGEMENT OF LEASE COMMENCEMENT
This Acknowledgement is executed as of _______ day of 1993 with
reference to that certain Lease Agreement ("Lease") dated JULY 12, 1993, by and
between AJ PARTNERS LIMITED PARTNERSHIP ("Lessor") and LEASECOMM CORPORATION
("Lessee").
Lessor and Lessee hereby acknowledge and agree as follows:
1. That the Lessee accepted possession of the Demised Premises (as
described in said Lease) on _________________ 1993, and
acknowledged that the premises are as represented by Lessor and
in good order, condition and repair; and that the improvements,
if any required to be constructed for Lessee by Lessor under this
Lease, have been so constructed and are satisfactorily completed
in all respects.
2. That all conditions of said Lease to be performed by Lessor
prerequisite to the full effectiveness of said Lease have been
satisfied and that Lessor has fulfilled all of its duties of an
inducement nature.
3. The Commencement Date under the said Lease is _________________
1993. The Termination Date under the said Lease is
________________ 1997, subject to any applicable provisions of
the Lease for extension or early termination thereof.
4. That said Lease is in full force and effect and that the same
represents the entire agreement between Lessor and Lessee
concerning said Lease.
5. That there are no existing defenses which Lessee has against the
enforcement of said Lease by Lessor and no offsets or credits
against rentals.
6. That the minimum rental obligations of said Lease is presently in
effect and that all rents, charges and other obligations on the
part of the Lessee under said Lease commenced to accrue on
________________, 1993.
7. That the undersigned Lessee has no notice of prior assignment,
hypothecation or pledge of said Lease or of rents thereunder.
LESSOR: AJ Partners Limited Partnership LESSEE
By: Draper and Kramer of California, Inc. Leasecomm Corporation
a California Corporation
Its: Manager
- ---------------------------------- --------------------------------------
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By: Richard J. Loeber By: Mike Lannon
Its: Vice President Its:
---------------------------
- ----------------------------------
By: Lawrence A. Cohen
Its: Senior Vice President
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FIRST AMENDMENT TO LEASE
by and between
AJ PARTNERS LIMITED PARTNERSHIP, as Lessor
and
LEASECOMM CORPORATION, A MASSACHUSETTS CORPORATION, as Lessee
This First Amendment to Lease (hereinafter called "First Amendment") is
executed by and between AJ PARTNERS LIMITED PARTNERSHIP, AS LESSOR and LEASECOMM
CORPORATION, A MASSACHUSETTS CORPORATION, AS LESSEE, with reference to the
following facts:
A. Lessor and Lessee are parties to that certain Lease dated July 12, 1993,
(hereinafter called the "Lease"), which commenced on September 1, 1993,
covering approximately 2,933 rentable square feet commonly known as
39899 Balentine Drive, Suite 365 in Newark, California 94560 (the
"Premises").
NOW THEREFORE, in consideration of the mutual covenants and obligations
contained herein, Lessor and Lessee hereby amends and supersedes the following
paragraphs of said Lease as follows:
LESSEE'S PRINCIPAL OFFICE: Leasecomm Corporation
950 Winter Street
Waltham, MA 02154-876
PARAGRAPH 1.4 BASE RENT: The Base Rent for the Premises shall be:
$4,106.20 per month for September 1, 1997 through
December 31, 1998; $4,399.50 per month for January 1,
1999 through April 30, 2000; and $4,692.80 per month for
May 1, 2000 through August 31, 2001.
PARAGRAPH 1.5 ADDITIONAL RENT: The base operating amount for the
period of September 1, 1997 through August 31, 2001,
shall be modified to the 1997 Base Year.
PARAGRAPH 1.6 TERM: The lease term shall be extended for a period of
forty-eight (48) months commencing at 12:01 a.m. on
September 1, 1997 (the "Extension Commencement Date") and
shall conclude at 11:59 p.m. on August 31, 2001 (the
"Expiration Date").
PARAGRAPH 1.8 SECURITY DEPOSIT: Lessee's security deposit shall be
$4,700.00.
PARAGRAPH 1.9 LESSEE'S INSURANCE:
(a) Comprehensive General Liability: One Million
Dollars ($1,000,000.00) per occurrence and Two Million
Dollars ($2,000,000.00) aggregate.
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(b) Automotive Liability: One Million Dollars
($1,000,000.00) per occurrence for non-owned vehicles and
hired vehicles.
(c) Workers Compensation: Proof of workers
compensation insurance.
(d) Employer's Liability: Five Hundred Thousand
Dollars ($500,000.00) per accident.
PARAGRAPH 1.10 LESSOR'S BROKER: Birtcher Property Services.
LESSEE'S BROKER: None.
PARAGRAPH 1.13 LESSOR'S MAILING ADDRESS:
AJ Partners Limited Partnership
c/o Birtcher Property Services
39899 Balentine Drive, Suite 115
Newark, CA 94560
PARAGRAPH 34 ENVIRONMENTAL:
(a) Lessee shall not cause or permit the release,
discharge, or disposal nor the presence, use,
transportation, generation or storage of any Hazardous
Materials (as hereinafter defined) in, on, under, about,
to, or from the Premises by either Lessee, Lessee's
employees, agents, contractors, or invitees (collective
the "Lessee") other than the use of such materials in the
minimum quantities reasonably necessitated by the
Lessee's regular business activities.
(b) Lessee further agrees and covenants to Lessor, its
agents, employees, affiliates and shareholders
(collectively, the "Lessor") the following:
(i) To comply with all Environmental Laws in
effect, or may come into effect, applicable to the Lessee
or Lessee's use and occupancy of the Premises;
(ii) To immediately notify Lessor, in writing,
of any existing, pending or threatened (a) investigation,
inquiry, claim or action by any governmental authority in
connection with any Environmental Laws; (b) third party
claims; (c) regulatory actions; and (d) contamination of
the Premises;
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(iii) Lessee shall at Lessee's expense,
investigate, monitor, remediate, and/or clean up any
Hazardous Material or other environmental condition on,
about, or under the Premises required as a result of
Lessee's use or occupancy of the Premises;
(iv) To keep the Premises free of any lien
imposed pursuant to any Environmental Laws; and
(v) To indemnify, defend, and save Lessor
harmless from and against any and all claims (including
personal injury, real or personal property damage),
actions, judgments, damages, penalties, fines, costs,
liability, interest or attorney's fees that arise,
directly or indirectly from Lessee's violation of any
Environmental Laws or the presence of any Hazardous
Materials on, under or about the Premises;
(c) The Lessee's obligations, responsibilities, and
liabilities under this Section shall survive expiration
of the Lease.
(d) For purposes of this Section, the following
definitions apply:
(i) "Hazardous Materials" shall mean: (1) any
"hazardous waste" and/or "hazardous substance" defined
pursuant to any Environmental Laws; (2) asbestos or any
substance containing asbestos; (3) polychlorinated
biphenyl's; (4) lead; (5) radon; (6) pesticide; (7)
petroleum or any other substance containing hydrocarbons;
(8) any substance which, when on the Premises, is
prohibited by any Environmental Laws; and (9) any other
substance, materials, or waste which (i) by any
Environmental Laws requires special handling or
notification of any governmental authority in its
collection, storage, treatment, or disposal or (ii) is
defined or classified as hazardous, dangerous, or toxic
pursuant to any legal requirement.
(ii) "Environmental Law" shall mean: any and
all federal, state, and local laws, statutes, codes,
ordinances, regulations, rules or other requirements,
relating to human health or safety or to the environment,
including, but not limited to, those applicable to the
storage, treatment, disposal, handling, and release of
any Hazardous Materials, all as amended or modified from
time to time.
In consideration for this renewal, Lessor shall shampoo the carpets in
the entire premises. Except as otherwise noted, all other terms and conditions
of the Lease which commenced on September 1, 1993, shall remain in full force
and effect.
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IN WITNESS WHEREOF, Lessor and Lessee execute this First Amendment to
Lease on this 26TH day of August 1997.
LESSOR: LESSEE:
AJ PARTNERS LIMITED PARTNERSHIP LEASECOMM CORPORATION
By: Birtcher Property Services a Massachusetts Corporation
a California Corporation
Its: Manager
/s/ Lynda L. Bettini /s/ Richard F. Latour
- -------------------------------- ----------------------------------------
By: Lynda L. Bettini By: Richard F. Latour
Its: Vice President Its: Executive Vice President
/s/ Michael S. Buzar
- --------------------------------
By: Michael S. Buzar
Its: Senior Vice President
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EXHIBIT A
[Diagram of Ground Level Floorplan and Parking Areas]
[Diagram of Third Level Floor Plan]
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EXHIBIT B
[Diagram of Third Floor]
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EXHIBIT B1
[Diagram of Suite 365]