Exhibit
10.5
“FULL SERVICE” OFFICE
LEASE
CEMO-COMMERCIAL, INC., 1107
Investment Blvd, Suite 150, El Dorado Hills, California
95762
THIS LEASE is
made as of the February 21,
2008 , (dated for reference
purposes only) by and between Landlord and Tenant.
1. Terms and
Definitions . For the purposes of this Lease, the following
terms shall have the following definitions and meanings:
“Full Service” Lease: In general,
other than elaborated upon elsewhere in this Lease, this Lease
provides for rental payment that covers common area and building
maintenance, building taxes, utilities, janitorial services and
building insurance. Tenant pays costs of
installation and maintenance of telephone/communication and
security systems.
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Landlord:
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CSS Properties,
LLC
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Landlord's
Address:
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1107 Investment
Blvd, Ste 150
El Dorado
Hills, CA 95762
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Tenant:
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Cellynx,
Inc.
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Building
Address:
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5047 Robert J
Mathews Parkway
El Dorado
Hills, CA 95762
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Suite
number:
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Suite
400
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Premises:
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Those certain
premises defined in Paragraph 2(a) hereinbelow, approximately as
shown on the drawing, to be shown as Exhibit A.
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Approximate Square Feet within Premises:
Approximately
1,570 square
feet of 11,520 square foot building. Square feet shall be
computed to include measurements to the outside of the outside
walls, or where walls are recessed the drip line, to the outside of
the interior hallway walls, and to the middle of interior walls
that divide suites.
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One (1) year, commencing on the Commencement
Date, Upon Substantial Completion of Tenant Improvements ,
and terminating one (1) year from Commencement
Date.
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Early Possession:
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N/A
("Early Possession
Date"). If an Early Possession Date is specified and if
Tenant totally or partially occupies the Premises after the Early
Possession Date but prior to the Commencement Date, the obligation
to pay Base Rent shall be abated for the period of such early
occupancy. All other terms of this Lease shall be in
effect during such period. Any such early possession
shall not affect nor advance the Expiration Date of the Original
Term.
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Rent:
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See Paragraph 52 for monthly rent during each
year of this lease.
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Security Deposit:
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The Security Deposit shall be
$2,198.00.
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Brokers:
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The following real estate broker(s)
(collectively, the "Brokers") and brokerage relationships exist in
this transaction and are consented to by the Parties (check
applicable boxes):
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o _________________
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represents Landlord exclusively ("Landlord's
Broker");
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o _________________
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represents Tenant exclusively
(“Tenant’s Broker");
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x Cemo Commercial,
Inc.
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represents both Landlord and Tenant ("Dual
Agency").
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Payment to Brokers: Upon the execution of this
Lease by both Parties, Landlord shall pay to said Broker(s)
jointly, or in such separate shares as they may mutually designate
in writing, a fee as set forth in a separate written agreement
between Landlord and said Broker(s) (or in the event there is no
separate written agreement between Landlord and said Broker(s), the
sum of (per agreement) for brokerage services rendered by said
Broker(s) in connection with this transaction.
Initials ______
Initials ______
2.
Premises and Common Areas Leased.
a. Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord, the
Premises contained within the suite designated in Paragraph 1 and
improved by Landlord with the Leasehold Improvements described in
plans to be provided by Landlord and approved by Tenant, said
Premises being agreed, for the purposes of this Lease, to have an
area approximately the number of square feet designated in
Paragraph 1, of that certain office building located at the address
designated in Paragraph 1 (hereinafter called
"Building".) The Premises exclude the common rest rooms,
entrance area, hallways, access ways, pipes, conduits, wires and
appurtenant fixtures serving exclusively or in common other parts
of the office project. Tenant covenants as a material
part of the consideration for this Lease to keep and perform each
and all of Lease terms, covenants and conditions.
b. Tenant shall
have the non-exclusive right to use in common with other tenants in
the Building and subject to the Rules and Regulations reasonably
established by Landlord, the following areas appurtenant to the
Premises:
(i) The common
rest rooms, entrance area, hallways, access ways, pipes, conduits,
wires and appurtenant equipment serving the Premises;
(ii) Common
walkways and sidewalks necessary for access to the Building
maintained by Landlord.
c. Landlord
reserves the right from time to time without unreasonable
interference with Tenant’s use and having given Tenant prior
notices:
(i) To install,
use, maintain, repair and replace pipes, ducts, wires and
appurtenant meters and equipment for service to other parts of the
Building above the ceiling surfaces, below the floor surfaces,
within the walls and in the central core areas, and to relocate any
pipes, ducts, conduits, wires and appurtenant meters and equipment
included in the Premises which are located in the Premises or
located elsewhere outside the premises and to expand the
Building;
(ii) To alter or
relocate any other common facility.
3. Term
. The term of this Lease shall be for the period
designated in Paragraph 1 commencing on the Commencement Date, and
ending on the expiration of such period, unless the term hereby
demised shall be sooner terminated as hereinafter provided. Upon
commencement of the term, this Lease shall be amended to set forth
the actual dates of commencement and ending of the term.
4.
Possession . Tenant agrees that in the event of
the inability of Landlord to deliver possession of the Premises to
Tenant on the date above specified for the commencement of the term
of this Lease, this Lease shall not be void or voidable, nor shall
Landlord be liable to Tenant for any loss or damage resulting
therefrom, nor shall the expiration date of the above term be in
any way extended, but in such event Tenant shall not be liable for
any rent until such times as Landlord tenders delivery of
possession of the Premises to Tenant with Landlord's work therein,
if any, substantially completed. Should Landlord tender possession
of the Premises to Tenant prior the date specified for commencement
of the term hereof, and Tenant elects to accept such prior tender,
such prior occupancy shall be subject to all of the terms covenants
and conditions of this Lease, including the payment of
rent.
5. Annual
Basic Rent. The term "Commencement Date" as used
herein is defined in Paragraph 1, above. From the
Commencement Date, Tenant agrees to pay landlord as Annual Basic
Rent for the Premises the Annual Basic Rent designated in twelve
(12) equal monthly installments, each in advance on the first day
of each and every calendar month during said term. In the event the
term of this Lease commences or ends on a day other than the first
day of a calendar month, then the rental for such periods shall be
prorated in the proportion that the number of days this Lease is in
effect during such periods bears to thirty (30), and such rental
shall be paid at the commencement of such periods. Said
rental shall be paid to Landlord, without any prior demand therefor
and without any deduction or offset whatsoever in lawful money of
the United States of America, which shall be legal tender at the
time of payment, at the address of Landlord designated in Paragraph
1 or to such other person or at such other place as Landlord may
from time to time designate in writing.
Initials ______
Initials ______
6.
Rental Adjustment . Rent shall be
adjusted in accordance with Paragraph 52.
7. Security
Deposit . Tenant has deposited with Landlord the
Security Deposit designated in Paragraph 1. Said sum
shall be held by Landlord as security for the faithful performance
by Tenant of all of the terms, covenants, and conditions of this
Lease to be kept and performed by Tenant during the term hereof. If
Tenant defaults with respect to any provisions of this Lease,
including but not limited to the provisions relating to the payment
of rent, landlord may (but shall not be required to) use, apply or
retain all or any part of this Security Deposit for the payment of
any rent or any other sum in default, or for the payment of any
other amount which Landlord may spend or become obligated to spend
by reason of Tenant's default or to compensate Landlord for any
loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of said deposit so used or
applied, Tenant shall, within ten (10) days after demand therefor,
deposit cash with Landlord in an amount sufficient to restore the
Security Deposit to its original amount and Tenant's failure to do
so shall be a material breach to this Lease. Landlord
shall not be required to keep this Security Deposit separate from
its general funds, and Tenant shall not be entitled to interest on
such Security Deposit. If Tenant shall fully and
faithfully perform every provision of this Lease to be performed by
it, the Security Deposit or any balance thereof shall be returned
to Tenant (or, at Landlord's option, to the last assignee of
Tenant's interests hereunder) at the expiration of the Lease
term. Should Landlord sell its interest in the Premises
during the term hereof and if Landlord deposits with the purchaser
thereof the then unappropriated funds deposited by Tenant as
aforesaid, thereupon Landlord shall be discharged from any further
liability with respect to such Security Deposit.
8. Use
. Tenant shall use the Premises for general office
purposes and purposes incident thereto, and shall not use or permit
the Premises to be used for any other purpose without the prior
written consent of Landlord. Tenant shall not use or occupy the
Premises in violation of law or of the certificate of occupancy
issued for the Building of which the Premises are a part, and
shall, upon five (5) days written notice from Landlord, discontinue
any use of the Premises which is declared by any governmental
authority having jurisdiction to be a violation of law or of said
certificate of occupancy. Tenant shall comply with any
direction of any governmental authority having jurisdiction, which
shall, by reason of the nature of Tenant's use or occupancy of the
Premises, impose any duty upon Tenant or Landlord with respect to
the Premises or with respect to the use of occupation
thereof. Tenant shall not do or permit to be done
anything which will invalidate or increase the cost of any fire,
extended coverage or any other insurance policy covering the
Building and/or property located therein an shall comply with all
rules, orders, regulations and requirements of the Pacific Fire
Rating Bureau or any other organization performing a similar
function. Tenant shall promptly upon notice
reimburse Landlord as additional rent for any additional premium
charged for such policy by reason of Tenant's failure to comply
with the provisions of this Paragraph 8. Tenant shall
not do or permit anything to be done in or about the Premises which
will unreasonably obstruct or interfere with the rights of other
tenants or occupants of the Building, or injure or annoy them, or
use or allow the Premises to be used for any improper, immoral,
unlawful purpose, nor shall Tenant cause, maintain or permit any
nuisance in, on or about the Premises. Tenant shall not
commit or suffer to be committed any waste in or upon the Premises
and shall keep the Premises in good repair and
appearance. Notwithstanding the foregoing, Tenant shall
have no responsibility for repairing or maintaining:
a. Any items
warranted by Landlord,
b. Structural
portions of the Premises and the Building, including the roof,
exterior walls and foundation, and,
c. The
electrical, plumbing and HVAC systems within the
Premises. As part of its use of the Premises, Tenant
shall have the right to assemble and repair equipment at the
Premises incidental to its business, provided that such activity
does not constitute a major use of the Premises.
9. Payment
and Notices . All rents and other sums payable by
Tenant to Landlord hereunder shall be paid to Landlord at the
address designated by Landlord in Paragraph 1 above or at such
other places as Landlord may hereafter designate in
writing. Any notice required or permitted to be given
hereunder must be in writing and may be given by personal delivery
or by mail, and if given by mail shall be deemed sufficiently given
if sent by registered or certified mail addressed to Tenant at the
Building of which the Premises are a part, or to Landlord at its
address designated in Paragraph 1. Either party may by
written notice to the other specify a different address for notice
purposes except that Landlord may in any event use the Premises as
Tenant's address for notice purposes. Any notice or
communication shall be deemed to have been given on the date, which
it is personally delivered, or, if mailed, three (3) days after the
date on which it is deposited in the United States.
Initials ______
Initials ______
10.
Brokers . The parties recognize that the
brokers who negotiate this Lease are the brokers whose names are
stated in Paragraph 1, and agree that Landlord shall be solely
responsible for the payment of brokerage commissions to said
brokers, and that Tenant shall have no responsibility
therefor. The parties warrant to each other that each
has not dealt with any real estate agents or broker other than
those brokers stated in Paragraph 1. Each party agrees
to indemnify, defend, and hold harmless from all loss, claim, cost,
and expense incurred as a result of a breach of this
warranty.
11. Holding
Over . If Tenant holds over after the expiration or
earlier termination of the term hereof without the express written
consent of Landlord, Tenant shall become a tenant at sufferance
only, at a rental rate equal to one hundred fifty percent (150%) of
the rent in effect upon the date of such expiration (subject to
adjustment as provided in Paragraph 6 hereof and prorated on a
daily basis), and otherwise subject to the terms, covenants and
conditions herein specified, so far as
applicable. Acceptance by Landlord of rent after such
expiration or earlier termination shall not constitute a holdover
hereunder or result in a renewal. The forgoing provision
of this Paragraph 11 are in addition to and do not affect
Landlord's right of re-entry or any rights of Landlord hereunder or
as otherwise provided by law.
12. Taxes on
Tenant's Personal Property and Trade Fixtures .
a. Tenant shall
be liable for and shall pay at least ten (10) days before
delinquency, taxes levied against any personal property or trade
fixtures placed by Tenant in or about the Premises.
b. Landlord
shall be responsible and shall pay for all taxes attributable to
the real property Leasehold Improvements made by Landlord to the
Premises.
13.
Condition of Premises . Except as otherwise
provided in this Lease, Tenant acknowledges that neither Landlord
nor any agent of Landlord had made any representation or warranty
with respect to the Premises or the Building or with respect to the
suitability of either for the conduct of Tenant's
business. Landlord hereby represents and warrants to
Tenant that as of the Commencement Date, the Premises, Building and
the property are in compliance with all applicable governmental
laws, ordinances or regulations applicable to the use of the
Premises, including, without limitation, the Americans with
Disabilities Act of 1990. Landlord shall indemnify,
protect, defend and hold Tenant harmless from and against any
costs, losses, or damages arising out of a breach of the foregoing
representation.
14.
Alterations .
a. Tenant shall
make no alterations, decorations, additions or improvements in or
to the Premises without Landlord's prior written consent, and then
only by contractors or mechanics approved by
Landlord. Tenant agrees that there shall be no
constructions of partitions or other obstructions, which might
interfere with Landlord's free access to mechanical installations
or facilities. All such work shall be done at such times
and in such manner as Landlord may from time to time
designate. Tenant covenants and agrees that all work
done by Tenant shall be performed in full compliance with all laws,
rules, orders, ordinances, directions, regulations, and
requirements of all governmental agencies, offices, departments,
bureaus and boards having jurisdiction and in full compliance with
the rules, orders, directions, regulations, and requirements of the
Pacific Fire Rating Bureau, or of any similar
body. Before commencing any work, Tenant shall give
Landlord at least five (5) days written notice of the proposed
commencement of such work and shall, if required by Landlord,
secure at tenant's own cost and expense, a completion and lien
indemnity bond, satisfactory to Landlord, for said
work. Tenant further covenants and agrees that any
mechanic's lien filed against the Premises or against the Building
for work claimed to have been done for, or materials claimed to
have been furnished to tenant, will be discharged by Tenant by bond
or otherwise, within ten (10) days after the filing thereof, at the
cost and expense of Tenant. All alterations,
decorations, additions or improvements upon the Premises, made by
either party, including (without limiting the generality of the
foregoing) all wall covering, built-in cabinet work, paneling, and
the like, shall, unless Landlord elects otherwise, become the
property of Landlord and shall remain upon, and be surrendered with
the Premises, as a part thereof, at the end of the term hereof,
expect that Landlord may, by written notice to Tenant, given at the
time such work is performed, require Tenant to remove all
partitions counters, railings, and the like installed by Tenant,
and tenant shall repair any damage to the Premises arising from
such removal or at Landlord's option, shall pay to the Landlord's
costs of such removal and repair. Notwithstanding
anything contained in the foregoing to the contrary, Tenant shall
have the right, without the consent of Landlord, to make certain
minor alterations or improvements to the Premises costing in the
aggregate not greater than $10,000, provided, however, that Tenant
shall provide Landlord with notice of its intent to perform such
work in advance of such performance.
Initials ______
Initials ______
b. All articles
of personal property and all business and trade fixtures, machinery
and equipment, furniture and movable partitions owned by Tenant or
installed by Tenant at its expense in the Premises shall be and
remain the property of Tenant and may be removed by Tenant at any
time during the lease term provided Tenant is not in default
hereunder, and provided further that Tenant shall repair any damage
caused by such removal. If Tenant shall fail to remove
all of its effects from said Premises upon termination of this
Lease for any cause whatsoever, Landlord may, at its option, remove
the same in any manner that Landlord shall choose, and store said
effects without liability to Tenant for loss thereof, and Tenant
agrees to pay Landlord upon demand any and all expenses incurred in
such removal, including court costs and attorneys' fees and storage
charges on such effects for any length of time that the same shall
be in Landlord's possession, or Landlord may, at its option without
notice, sell said effects, or any of the same, at private sale and
without legal process, for such price as Landlord may obtain and
apply the proceeds of such sale upon any amounts due under this
Lease from Tenant to landlord and upon the expense incident to the
removal and sale of said effects.
c. Landlord
reserves the right at any time and from time to time without the
same constituting an actual or constructive eviction and without
incurring any liability to Tenant therefor or otherwise affecting
Tenant's obligations under this Lease, to make such changes,
alterations, additions, improvements, repairs or replacements in or
to the Building (including the Premises if required so to do by any
law or regulation) and the fixtures and equipment thereof, as well
as in or to the street entrances, halls, passages and stairways,
thereof, to change the name by which the Building is commonly
known, as Landlord may deem necessary or
desirable. Nothing contained in this Subparagraph 14c.
Shall be deemed to relieve Tenant of any duty, obligation, or
liability of tenant with respect to making any repair, replacement
or improvement or complying with any law, order or requirement or
any government obligation, responsibility or liability whatsoever,
for the care, supervision or repair of the Building or any part
thereof other than as otherwise provided in this
Lease. Notwithstanding anything contained in the
foregoing to the contrary, no such changes, alteration, additions,
improvement, repairs or replacements in or to the building, and the
fixtures or equipment thereof, shall materially affect tenant's
access to and use of the Premises.
15.
Repairs.
a. Subject to
the representations and warranties and repair obligations of
Landlord contained in this Lease, by entry hereunder, Tenant shall
accept the premises as being in good and sanitary order, condition
and repair. Tenant shall, when and if needed or whenever
reasonably requested by Landlord to do so, when not resulting from
natural disaster as covered by Landlord’s insurance, at
Tenant’s sole cost and expense, make all repairs to the
Premises and every part thereof, including all windows and doors,
to keep, maintain and preserve the premises in good condition and
repair. Tenant shall upon the expiration or sooner
termination of the term hereof surrender the Premises to Landlord
in the same conditions when received, ordinary wear and tear and
casualty damages (i.e. fire, earthquake) accepted. At
Lease termination, Tenant shall not be responsible for repainting
walls or cleaning carpet unless damage is beyond that considered
normal wear and tear. Landlord shall have no obligation
to alter, remodel, improve, repair, decorate or paint the Premises
or any part thereof and the parties hereto affirm that Landlord has
made no representations to Tenant respecting the condition of the
Premises or the Building except as specifically herein set
forth.
b. Anything
contained in Subparagraph 15a above to the contrary
notwithstanding, Landlord shall repair and maintain the structural
portions of the Building and the premises including the basic
plumbing, heating, ventilating, air conditioning and electrical
systems installed or furnished by Landlord, unless such maintenance
and repairs are caused in part or in whole by Tenant, its agents,
servants, or employees in which case Tenant shall pay to Landlord,
as additional rent, the reasonable cost of such maintenance and
repairs. Landlord shall not be liable for any failure to
make any such repairs or to perform any maintenance unless such
failure shall persist for an unreasonable time (normally two days)
after written notice of the need of such repairs or maintenance is
given to Landlord by Tenant. Tenant waives the right to
make repairs at Landlord's expense under any law, statute or
ordinance now or hereafter in effect. Landlord also
shall be responsible for repairing and maintaining in good
condition and repair the common areas of the Building and the
Premises. Notwithstanding anything contained in the
foregoing to the contrary, in the event that, as a result of any
repairs, maintenance or improvements by Landlord to the Building or
the Premises, Tenant's ability to use the Premises is adversely
affected for a period of two (2) or more business days, all rent
payable hereunder shall abate until such time as such repairs,
maintenance or improvements no longer adversely affect Tenant's use
of the Premises; provided, however, that no such abatement shall
apply in the vent such repairs, maintenance or improvement are
necessitated by Tenant's negligence or willful
misconduct.
Initials ______
Initials ______
c. Matters
Pertaining to Toxic Mold. Whenever the terms
“Hazardous Materials”, “Hazardous
Substances”, or similar terms are used within the lease, such
definitions shall include or shall mean mold and fungi of all types
and conditions, whether containing toxic properties or
not. Furthermore, tenant shall comply with any
guidelines established by the California Department of Health
Services for the prevention or remediation of mold. In
addition to tenant’s obligation to prevent and remediate the
existence of mold as required under this lease, tenant shall
immediately notify landlord of any mold or chronic water intrusion
or flood conditions that exist upon or within the
Premises.
Regardless of the cause or responsibility for
the presence of mold or a chronic water intrusion or flood
condition, tenant shall take all steps necessary to prevent the
amplification of any contamination problem, and shall take all
steps necessary to prevent tenant’s employees, agents,
invitees, customers, etc. from becoming exposed to any mold
condition.
16.
Liens. Tenant shall not permit any mechanic's,
materialmen's or other liens to be filed against the real property
of which the Premises form a part nor against the Tenant's
leasehold interest in the Premises.
17. Entry by
Landlord . Landlord reserves and shall, after
providing prior notice to Tenant, have the right to enter the
Premises to inspect the same and any other service to be provided
by Landlord to Tenant hereunder, to submit said Premises to
prospective purchasers or tenants, to post notices of
non-responsibility, to alter, improve or repair the Premises or any
other portion of the Building, all without being deemed guilty of
any eviction of tenant and without abatement of rent, and may, in
order to carry out such purposes, erect scaffolding and other
necessary structures where reasonably required by the character of
the work to be performed, provided that the business of Tenant
shall be interfered with as little as is reasonably
practicable. Tenant hereby waives any claim for damages
for any injury or inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Premises,
and any other loss occasioned thereby. For each of the
aforesaid purposes, Landlord shall at all times have and retain a
key with which to unlock all of the doors in, upon and about the
Premises, excluding Tenant's vaults and safes and Landlord shall
have the right to use any and all means which Landlord may deem
proper to open said doors in an emergency in order to obtain entry
to the Premises, and any entry to the Premises obtained by Landlord
by any of said means, or otherwise, or an eviction of Tenant from
the Premises or any portion thereof, and any damages caused on
account thereof shall be paid by Tenant. Is understood
and agreed that no provisions of this Lease shall be construed as
obligation for Landlord to perform any repairs, alterations or
decorations except as otherwise expressly agreed herein to be
performed by Landlord.
18.
Utilities and Services . Landlord agrees to
furnish to the Premises reasonable quantities of electric current
for normal lighting and fractional horsepower office machines,
water for lavatory and drinking purpose, heat and air conditioning
(engineered for size) required in Landlord's reasonable judgment
for the comfortable use and occupancy of the Premises. Landlord
shall not be liable for, and Tenant shall not be entitled to any
abatement or reduction of rent by reason of Landlord's failure to
furnish any of the foregoing when such failure is caused by
accident, breakage, repairs strikes, lockouts, or other labor
disturbances or labor disputes of any character, or for any other
causes. Notwithstanding anything contained in the
foregoing to the contrary, in the event that interruption in
utilities or services to the Premises continues for a period of
three (3) or more days and such interruption is not the direct
result of Tenant's negligence or willful misconduct, all rent
payable hereunder shall abate until such time as such utilities
and/or services are restored to the Premises. If such
interruption continues for a period of thirty (30) or more days,
Tenant shall have the right to terminate this Lease upon ten (10)
days written notice to Landlord. Landlord shall provide
janitorial services to the Premises. Landlord shall pay
costs of gas and electrical services to the Premises.
19.
Bankruptcy. If Tenant shall file a petition in
bankruptcy under any Chapter of the Bankruptcy Act as then in
effect, or if Tenant be adjudicated bankrupt in involuntary
bankruptcy proceedings and such adjudication shall not have been
vacated within sixty (60) days from the date thereof, or if a
receiver or trustee be appointed of Tenant’s property, and
the order appointing such receiver or trustee not be set aside or
vacated within sixty (60) days after the entry thereof, or if the
Tenant shall assign Tenant's estate or effects for the benefit of
creditors, Landlord may, if Landlord so elects, with or without
notice of such election and with or without entry or action by
Landlord, forthwith terminate this Lease, and notwithstanding any
other provision of this Lease, Landlord in addition to any and all
rights and remedies allowed by law or equity, shall upon such
termination be entitled to recover damages in the amount provided
in Paragraph 25 (b) below and neither Tenant nor any person
claiming through or under Tenant or by virtue of any statue or
order of any court shall be entitled to possession of the Premises
but obtain as damages by reason of any such termination an amount
equal to the maximum allowed by any statue or rule of law in effect
at the time when, and governing the proceedings in which such
damages are to be proved, whether or not such amount be greater,
equal to, or less than the amount of damages recoverable under the
provisions of this Paragraph 19.
Initials ______
Initials ______
20.
Indemnification. Except to the extent
arising from Landlord's negligence or willful misconduct, Tenant
shall indemnify and hold harmless Landlord against and from any and
all claims arising from Tenant's use of the Premises or the conduct
of its business or from any activity, work, or thing done,
permitted or suffered by Tenant in or about the Premises, and shall
further indemnify and hold harmless Landlord against and from any
and all claims arising from any breach or default in the
performance of any obligation on Tenant's part to be performed
under the terms of this Lease, or arising from any act negligence
or intentional misconduct, any action or proceeding brought
thereon; and in case any action or proceeding be brought against
Landlord by reason of any such claim, Tenant upon notice from
Landlord shall defend the same at Tenant's expense by counsel
approved in writing by Landlord. Tenant, as a material
part of the consideration to Landlord, hereby assumes all risk of
damage to property or injury to persons, upon or about the Premises
from any cause whatsoever except that which is caused by Landlord's
negligence or by the failure of Landlord to observe any of the
terms and conditions of this Lease and such failure has persisted
for an unreasonable time, and Tenant hereby waives all its claims
in respect thereof against Landlord. Except to the extent arising
out of Tenant's negligence or willful misconduct, Landlord shall
indemnify and hold harmless Tenant against and from any and all
claims arising from any activity, work, or thing done, permitted or
suffered by Landlord in or about the Building, and shall further
indemnify and hold harmless Tenant against and from any and all
claims arising from any breach or default in the performance of any
obligation on Landlord's part to be performed under the terms of
this Lease, or arising from the negligence or intentional
misconduct of Landlord, or of its agents or employees, and from and
against all costs, attorney's fees, expenses and liabilities
incurred in or about such claim or any action or proceeding brought
thereon; and in case any action or proceeding be brought against
Tenant by reason of such claim, Landlord upon notice from Tenant
shall defend the same at Landlord's expense by counsel approved in
writing by Tenant.
21. Damage
to Tenant's Property . Except to the extent arising
from Landlord's negligence or willful misconduct, notwithstanding
the provision of Paragraph 20 to the contrary, Landlord or its
agents shall not be liable for any damage to property entrusted to
employees of the Building, nor for 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 sub-surface or from any
other place or resulting from dampness or any other cause
whatsoever. Landlord or its agents shall not be liable
for interference with the light or other incorporeal
hereditaments. Tenant shall give prompt notice to
Landlord in case of fire or accidents in the Premises or in the
Building or defects therein or in the fixtures or
equipment.
22.
Insurance.
a. Tenant
shall, during the entire term hereof and during any rent free
period or period of prior occupancy, at its sole cost and expense,
obtain, maintain and keep in full force and effect, with Tenant,
Landlord and the mortgagees of Landlord named as insureds therein
as their respective interests may appear