LARKSPUR LANDING CIRCLE
Lease is made by the Landlord and Tenant named below, who agree as follows:
||Date of Lease: September 28, 2016.|
||Landlord: SAVOY CORPORATION, a California corporation.|
||Tenant: SYSOREX USA, a Virginia corporation.|
||Premises and Building:|
Building (section 1.1): 101 Larkspur Landing Circle, Larkspur, California
Number of Rentable Square Feet in Building (section 1.1): 34,982.
Premises (section 1.1): Approximately 6,211 Rentable Square Feet of space and approximately 5,606 Usable Square Feet of space
located on the ground floor of the Building, as set forth in Exhibit A, known as Suite 120.
Duration (section 2.1): Five (5) years and three (3) months.
Lease Commencement Date (section 2.1): December 1, 2016.
Lease Expiration Date (section 2.1): February 28, 2022.
||Base Rent (section 3.1):|
||Monthly Base Rent|| |
|| || |
||December 1, 2016 through February 28, 2017||
|| ||Free Rent|| |
||March 1, 2017 through November 31, 2017||
||December 1, 2017 through November 30, 2018||
||December 1, 2018 through November 30, 2019||
||December 1, 2019 through November 30, 2020||
||December I, 2020 through February 28, 2022||
Lease — Sysorex
||Additional Rent (Article 4):|
Base Year (subsection 4.2.1): The calendar year of 2017.
Tenant’s Share of Direct Expenses (subsection 4.2.6): Seventeen and 75/100 percent (17.75%).
||Security Deposit (section 5.1): $27,452.62.|
||Permitted Use (section 6.1): General office use.|
||Addresses for notices:|
Landlord’s address (subsection 30.11.3): Savoy Corporation, 2720 Taylor Street, Suite 400, San Francisco, California, 94133
(fax number: 415-353.0241).
Tenant’s address (subsection 30.11.3)
Before Lease Commencement Date: Sysorex, 17 E. Sir Francis Drake Blvd, Suite # 110, Larkspur CA 94939 (fax number_ (650)
276-7185), Attention: Chief Financial Officer.
After Lease Commencement Date: 101 Larkspur Landing Circle, Suite 120, Larkspur, CA 94925 (fax number: (650) 276-7185),
Attention: Chief Financial Officer.
At all times, copies of any notices to Tenant shall be given to Tenant concurrently at (a) 6345 Balboa Blvd, Suite # 247,
Encino, CA 91316 (fax number (650) 276-7185), Attention: Chief Financial Officer and (b) 2479 E. Bayshore Rd, Suite
195, Palo Alto , CA 94303 (fax number; _____________ ), Attention: Legal Department.
||Brokers (section 29.23):|
Landlord’s Broker: Keegan & Coppin Company, Inc.
Tenant’s Broker: CBRE and Keegan & Coppin Company, Inc.
Lease is on all of the terms and conditions of the Lease Provisions attached hereto as Part II. Each reference in the Lease Provisions
to any provision in this Summary of Basic Lease Information (“Summary”) shall be construed to incorporate all the terms
provided under that provision of the Summary. In the event of any conflict between a provision in this Summary and a provision
in the balance of the Lease, this Summary shall control.
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Lease — Sysorex
as of the date stated in section 1 of this Summary.
||/s/ Judson La Haye |
Judson La Haye
||/s/ Kevin Harris |
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Lease — Sysorex
PROPERTY, BUILDING, AND PREMISES
Lease of Premises. Landlord leases to Tenant, and Tenant leases from Landlord, the premises described in Summary section
4(c) (“Premises”), which are located in the building described in Summary section 4(a) (“Building”), reserving
to Landlord the rights described in Lease section 1.4. The outline of the Premises is set forth in Exhibit A. The Rentable Area
and Usable Area of the Premises and the Rentable Area of the Building are set forth in Summary sections 4(b) and 4(c). The Building,
the areas servicing the Building (including any adjacent parking area), and the land on which the Building and those areas are
located (as shown on the site plan attached to this Lease as Exhibit B) are sometimes collectively referred to as the “Real
Property.” Tenant acknowledges that Landlord has made no representation or warranty regarding the condition of the Real Property
except as specifically stated in this Lease.
Rights. Tenant is granted the right at all times during the Lease Term to the nonexclusive use of the main lobby of the
Building, common corridors and hallways, stairwells, elevators, restrooms, parking areas, walkways, driveways and
other public or common areas located on the Real Property. Landlord, however, has the sole discretion to determine the manner
in which those public and common areas are maintained and operated, and the use of those areas shall be subject to the Rules
and Regulations, as defined in section 6.2; provided, however, that Tenant’s quiet enjoyment, possession and use of the
Premises shall at all times be maintained and preserved and that such public and common areas shall be maintained and
operated in such a manner so as not to materially adversely affect Tenant’s business at the Premises or Tenant’s use
The appurtenant rights include the nonexclusive use of Landlord’s parking area for parking by Tenant’s
employees and business invitees and guests, all of which shall be at no additional cost or charge to Tenant or such
employees, invitees or guests. Tenant’s continued right to use the parking area is conditioned on Tenant abiding by all
non-discriminatory rules and regulations prescribed from time to time for the orderly operation and use of the parking area.
Tenant shall use all reasonable efforts to ensure that Tenant’s employees and business invitees and guests also comply
with stet’ rules and regulations. Landlord specifically reserves the right to change the location, size, configuration,
design, layout and all other aspects of the parking area and Landlord may close off or restrict access to the parking area
from time to time to facilitate construction, alteration or improvements without incurring any liability to Tenant and
without any abatement of Rent under this Lease; provided, however, that Tenant’s quiet enjoyment, possession and use of
the Premises shall at all times be maintained and preserved and that such parking areas shall be maintained and operated in
such a manner so as not to materially adversely affect Tenant’s business at the Premises or Tenant’s use
Landlord’s Reservation of Rights. Landlord reserves the right to all of the Building except for the space within the Premises
and the other rights reserved to Tenant herein.
Preparation of Premises: Acceptance. Except as otherwise provided in a Leasehold Improvement Agreement and also with respect
to , Landlord’s Work as set forth therein, attached hereto as Exhibit C, or otherwise set forth herein, Tempt agrees to accept
the Premises in its as-is condition and agrees that Landlord, except for said Landlord’s Work, as will have no obligation to prepare
the Premises for Tenant’s occupancy. If this Lease conflicts with the Leasehold Improvement Agreement, the Leasehold Improvement
Agreement shall prevail.
Rentable Area and Usable Area. The terms “Rentable Square Feet” and “Useable Square Feet” in the Summary
and elsewhere are reasonable approximations and are based on Landlord’s calculations as applied throughout the Building. The parties
mutually agree to accept those calculations and further agree that the Rent, Tenant’s Share and other calculations shall not be
subject to adjustment during the Lease Term notwithstanding any remeasurements.
Lease Term. The provisions of this Lease shall be effective as of the date of this Lease. The term of this Lease (“Lease
Term”) shall be the period stated in Summary section 5(a). The Lease Term shall commence on the date (“Lease Commencement
Date”) stated in Summary section 5(b) and shall expire on the date (“Lease Expiration Date”) stated in Summary
section 5(c) unless this Lease is sooner terminated as provided in this Lease.
Confirmation of Lease Information. At any time during the Lease Term, Landlord may deliver to Tenant a notice setting forth
the Lease Term, which Tenant shall execute and return to Landlord within five (5) days after receipt.
Delay in Delivery of Premises. If Landlord is unable to deliver possession of the Premises to Tenant on or before the projected
Lease Commencement Date, Landlord shall not be subject to any liability for its failure to do so. This failure shall not affect
the validity of this Lease or the obligations of Tenant under it, but the Lease Term shall commence on the date on which Landlord
delivers possession of tie Premises to Tenant. Notwithstanding the foregoing to the contrary, in the event that Landlord does
not deliver possession of the Premises to Tenant on or before January 1, 2017, then Tenant shall receive one free day of Base
Rent for each day after January I, 2017 until Landlord delivers possession of he Premises to Tenant Landlord and Tenant agree
to execute an amendment to this Lease setting forth the actual Lease Commencment Date, free rent period and Lease Termination
Lease — Sysorex
Definition of “Base Rent”. Tenant shall pay to Landlord base rent (“Base Rent”) in equal monthly installments
as set forth in Summary section 6 in advance on or before the first day of every calendar month during the Lease Term, without
any setoff or deduction except as otherwise set forth herein. Payment shall be made at the management office of the Building or
at any other place that Landlord may from time to time designate in writing. Payment must be in United States dollars, either
in the form of a check or via electronically transmitted funds. If any payment made by check is not paid by the bank or other
institution on which it is drawn, Landlord shall have the right, exercised by notice to Tenant, to require that Tenant make all
future payments by certified funds or cashier’s check.
Initial Payment: Proration. The Base Rent for the first full calendar month of the Lease Term shall be paid when Tenant
executes this Lease. If any payment date (including the Lease Commencement Date) for “Rent,“as defined in section 4.1,
falls on a day other than the first day of that calendar month, or if any Rent payment is for a period shorter than one calendar
month, the Rent for that fractional calendar month shall accrue on a daily basis for each day of that fractional month at a daily
rate equal to 1/365 of the total annual Rent. All other payments or adjustments that are required to be made under the terms of
this Lease and that require proration on a time basis shall be prorated on the same basis.
Application of Payments. All payments received by Landlord from Temnt shall be applied to the oldest payment obligation
owed by Tenant to Landlord. No designation by Tenant, either in a separate writing or on a check or money order, shall modify
thisclause or have any force or effect.
Additional Rent; Rent. In addition to paying the Base Rent specified in Article 3, Tenant shall pay as additional rent
Tenant’s Share of the annual Direct Expenses (as defined in subsections 4.2.2 and 4.2.6) that are in excess of the amount of Direct
Expenses applicable to the Base Year (as defined in subsection 4.2.1). That additional rent, together with other amounts of any
kind (other than Base Rent) payable by Tenant to Landlord under the terms of this Lease, shall be collectively referred to in
this Lease as “Additional Rent.” Base Rent and Additional Rent are collectively referred to in this Lease as “Rent”
All amounts due under this Article 4 as Additional Rent are payable for the same periods and in the same manner, time, and place
as the Base Rent Without limitation on other obligations of Tenant that survive the expiration of the Lease Term, Tenant’s obligations
to pay the Additional Rent provided for in this Article 5 survive the expiration of the Lease Term.
Definitions. The following definitions apply in this Article 4:
Base Year. “Base Year” means the period stated in Summary section 7(a).
Direct Expenses. “Direct Expenses” mean Operating Expenses plus Tax Expenses.
Expense Year. “Expense Year” means each calendar year in which any portion of the Lease Term falls, through and
including the calendar year in which the Lease Term expires.
Operating Expenses. “Operating Expenses” means all expenses, costs, and amounts of every kind that Landlord pays
or incurs during any Expense Year because of or in connection with the ownership, operation, management, maintenance, repair,
replacement, or restoration of the Real Property.
of Operating Expenses. The definition of “Operating Expenses” includes any amounts paid or incurred for. (a)
The cost of supplying any utilities; (b) The cost of operating, managing, maintaining, and repairing the following
systems: utility, mechanical, sanitary, storm drainage, escalator, and elevator; (c) The cost of supplies and tools and of
equipment, maintenance, and service contracts in connection with those systems; (d) The cost of licenses, certificates,
permits, and inspections; (e) The cost of contesting the validity or applicability of any government enactments that may
affect the Operating Expenses; (f) The costs incurred in connection with the implementation and operation of a transportation
system management program or similar program; (g) The cost of insurance carried by Landlord, in amounts reasonably determined
by Landlord; (h) Fees, charges, and other costs including management fees (or an amount not to exceed a management fee
otherwise payable to a third-party manager), consulting fees, legal fees, and accounting fees of all persons engaged by
Landlord or otherwise reasonably incurred by Landlord in connection with the operation, management, maintenance, and repair
of the Real Property; (i) The cost of parking area maintenance, repair, and restoration, including resurfacing, repainting,
restriping, and cleaning; (j) Wages, salaries, and other compensation and benefits of all persons engaged in the operation,
maintenance, or security of the Building plus employer’s Social Security taxes, unemployment taxes, insurance, and any
other taxes imposed on Landlord that may be levied on those wages, salaries, and other compensation and benefits (if any of
Landlord’s employees provide services for more than one building of Landlord, only the prorated portion of those
employees’ wages, salaries, other compensation and benefits, and taxes reflecting the percentage of their working time
devoted to the Real Property shall be included in Operating Expenses); (k) Payments under any easement, license, operating
agreement, declaration, restrictive covenant, or instrument relating to the sharing of costs by the Building; (1)
Amortization (including interest on the unamortized cost at a rate equal to the floating commercial loan rate announced from
time to time by Bank of America, NT&SA (or other major bank or financial institution selected by Landlord) as is
prime rate plus two (2) percentage points per annum) of the cost of acquiring or renting personal property used in the
maintenance, repair, and operation of the Building and Real Property; and (m) The cost of capital improvements or
other cost incurred in connection with the Real Property that (1) are intended as a laborsaving device or to effect other
econanies in the maintenance or operation of all or part of the Real Property or (2) are required under any government law or
regulation but that were not required in connection with the Real Property when permits for he construction of the Building
were obtained. All permitted capital expenditures shall be amortized (including interest on the unamortized cost) over their
useful life, as reasonably determined by Landlord.
Lease — Sysorex
Adjustment of Operating Expenses. Operating Expenses shall be adjusted as follows:
Gross-Up Adiustment When Building Is Less Than Fully Occupied. If the occupancy of the Building during any part of any
Expense Year (including the Base Year) is less than ninety-five percent (95%), Landlord shall make an appropriate adjustment of
the variable components of Operating Expenses for that Expense Year, as reasonably determined by Landlord using sound accounting
and management principles, to determine the amount of Operating Expenses that would have been incurred had the Building been ninety
five percent (95%) occupied. This amount shall be considered to have been the amount of Operating Expenses for that Expense Year.
For purposes of this subsection 22.214.171.124.1, “variable components” include only those component expenses that are affected
by variations in occupancy levels.
Exclusions From Operating Expenses. Despite any other provision of subsection 4.2.4, Operating Expenses shall not include:
(a) Depreciation, interest, and amortization on mortgages or ground lease payments, excels as otherwise stated in this section
4.2; (b) Legal fees incurred in negotiating and enforcing tenant leases; (c) Real estate brokers’ leasing commissions; (d) Initial
improvements or alterations to tenant spaces; (e) The cost of providing any service directly to and paid directly by any tenant
(f) Any costs expressly excluded from Operating Expenses elsewhere in this Lease; (g) Costs of any items for which Landlord receives
reimbursement font insurance proceeds or a third party. Insurance proceeds shall be exduded from Operating Expenses in the year
in which they are received, except that any deductible amount under any insurance policy shall be included within Operating Expenses;
and (h) Costs of capital improvements, except as otherwise stated in this section 4.2.
Expenses. “Tax Expenses” means all federal, state, county, or local government or municipal taxes,
fees, charges, or other impositions of every kind (whether general, special, ordinary, or extraordinary) that are paid or
incurred by Landlord during any Expense Year (without regard to any different fiscal year used by any government or municipal
authority) because of or in connection with the ownership, leasing, and operation of the Real Property. These expenses
include taxes, fees, and charges such as real property taxes, general and special assessments, transit taxes, leasehold
taxes, and taxes based on the receipt of rent (including gross receipts or sales taxes applicable to the receipt of rent,
unless required to be paid by Tenant); personal property taxes imposed on the fixtures, machinery, equipment, apparatus,
systems, and equipment appurtenances; furniture; and other personal property used in connection with the Building.
Adjustment of Taxes. For purposes of this Lease, Tax Expenses shall be calculated as if the tenant improvements in the
Building were fully constructed and the Real Property, the Building, and all tenant improvements in the Building were fully assessed
for real estate tax purposes. Landlord specifically agrees that the gross-receipts component of Tax Expenses for the Base Year
and each subsequent year shall be calculated as if the Building were one-hundred-percent (100%) occupied with rent-paying tenants.
Accordingly, during the portion of any Expense Year occurring after the Base Year, Tax Expenses shall be considered to be increased
Included Tax Expenses. Tax Expenses shall include: (a) Any assessment, tax, fee, levy, or charge in addition to, or in
partial or total substitution of, any assessment, tax, fee, levy, or charge previously included within the definition of “real
property tax”; (b) Any assessment, tax, fee, levy, or charge allocable to, or measuredby, the area of the Premises or the
rent payable under this Lease, including any gross income tax with respect to the receipt of that rent, or on or relating to the
possession, leasing, operating, management, maintenance, alteration, repair, use, or occupancy by Tenant of the Premises or any
portion of the Premises; (c) Any assessment, tax, fee, levy, or charge on this transaction or any document to which Tenant is
a party, creating or transferring an interest or an estate in the Premises; and (d) Any possessory taxes charged or levied inplace
of real property taxes.
Contest Costs; Refunds. Any expenses incurred by Landlord in attempting to protest, reduce, or minimize Tax Expenses shall
be included in Tax Expenses in the Expense Year in which those expenses are paid. Tax refunds shall be deducted from Tax Expenses.
Such tax refunds shall be deducted from Tax Expenses in the Expense Year in which they are received by Landlord.
Taxes. Despite any other provision of subsection 4.2.5 (except as provided in subsection 126.96.36.199 or levied entirely or
partially in lieu of Tax Expenses), he following shall be excluded from Tax Expenses: (a) AU excess profits taxes,
franchise taxes, gift taxes, capital stock taxes, inheritance and succession taxes, estate taxes, federal and state income
taxes, and other taxes applied or measured by Landlord’s general or net income (as opposed to rents, receipts, or
income attributable to operations at the Building); (b) Any items included as Operating Expenses; and (c) Any items paid by
Tenant under section 4.4. In addition, during the first three (3) years of the Lease Term (but not during any Opetion Period)
Tenant shall not be required to pay any increases in real estate taxes caused by a change of ownership by Landlord of the
Real Property or any interest in the Real Property.
Tenant’s Share. “Tenant’s Share” means the percentage stated in Summary section 7(b). Tenant’s Share is calculated
by multiplying the number of Rentable Square Feet of the Premises by 100 and dividing the product by the total Rentable Square
Feet in the Building. If either the Premises or the Building is expanded or reduced, Tenant’s Share shall be appropriately adjusted.
Tenant’s Share for the Expense Year in which that change occurs shall be determined on the basis of the number of days during
the Expense Year in which each such Tenant’s Share was in effect.
Lease — Sysorex
Calculation and Payment of Additional Rent. Tenant’s Share of any Direct Expenses for my Expense Year shall be calculated
and paid as follows:
Calculation of Excess. If Tenant’s Share of Direct Expenses for any Expense Year endilg or beginning within the Lease Term
exceeds Tenant’s Share of the amount of Direct Expenses applicable to the Base Year, Tenant shall pay as Additional Rent to Landlord
an amount equal to that excess (Excess), in the manner stated in subsection 4.3.2.
Statement of Actual Direct Expenses and Payment by Tenant. Landlord shall endeavor to give to Tenart on or before the first
day of April following the end of each Expense Year a statement (“Statement”) stating the Direct Expenses incurred or
accrued for that preceding Expense Year and indicating the amount, if any, of any Excess. On receipt of the Statement for each
Expense Year ending during the Lease Term for which an Excess exists, Tenant shall pay, with its next installment of Base Rent
due, the full amount of that Excess, less the amounts (if any) paid during that Expense Year as Estimated Excess (as defined in
subsection 4.3.3). Landlord’s failure to furnish the Statement for any Expense Year in a timely manner shall not prejudice Landlord
from enforchg its rights under this Article 4. Even if the Lease Term has expired and Tenant has vacated the Premises, if an Excess
exists when the final determination is made of Tenant’s Share of the Direct Expenses for the Expense Year in which this Lease
terminates, Tenant shall immediately pay to Landlord the amount calculated under subsection 4.3.1. The provisions of this subsection
4.3.2 shall survive the expiation or earlier termination of the Lease Term.
Statement of Estimated Direct Expenses. Landlord shall give Tenant a yearly expense estimate statement (“Estimate
Statement”) stating: (a) Landlord’s reasonable estivate (“Estimate”) of the total amount of Direct Expenses for
the then-current Expense Year; and (b) The estimated excess (“Estimated Excess”).
Estimated Excess shall be calculated by comparing estimated Direct Expenses (which shall be based on the Estimate) to the amount
of Direct Expenses applicable to the Base Year. Landlord’s failure to furnish the Estimate Statement for any Expense Year in a
timely manner shall not preclude Landlord from enforcing is rights to collect any Estimated Excess under this Article 4. If an
Estimated Excess is calculated for the then-current Expense Year, Tenant shall pay, with its next installment of Base Rent due,
a fraction of that Estimated Excess for the then-current Expense Year (reduced by any amounts paid as provided in the last sentence
of this subsection 4.3.3). The numerator of that fraction shall be the number of months that have elapsed in that current Expense
Year (including the month of the payment), and the denominator shall be twelve (12). Until a new Estimate Statement is furnished,
Tenant shall pay monthly, along with the monthly Base Rent installments, an amount equal to one twelfth (1/12th) of the total
Estimated Excess stated in the previous Estimate Statement delivered by Landlord to Tenant
Taxes and Other Charges for Which Tenant is Directly Responsible. Tenant shall reimburse Landlord, on demand, as Additional
Rent for any taxes required to be paid by Landlord that are not already included in Tax Expenses, excluding state, local, and
federal personal or corporate income taxes measured by the net income of Landlord from all sources ard estate and inheritance
taxes, regardless of whether such taxes are now customary or within the contemplation of the parties to this Lease, when those
taxes are: (a) Measured by or reasonably attributable to: (1) The cost or value of Tenant’s equipment, furniture, fixtures, and
other personal property located in the Premises; or (2) The cost or value of my leasehold improvements made in or to the Premises
by or for Tenant (to the extent that the cost or value of those leasehold inprovements exceeds the cost or value of a building-standard
build-out, as determined by Landlord, regardless of whether title to those improvements is vested in Tenant or Landlord); (b)
Assessed on or related to he possession, leasing, operation, management, maintenance, alteration, repair, use, or occupancy by
Tenant of (1) The Premises; (2) Any portion of the Real Property; or (3) The parking facility used by Tenant in connection with
this Lease; or (c) Assessed either on this transaction or on any document to which Tenant is a party that creates or transfers
an interest or an estate in the Premises.
Books and Records. If Tenant disputes the amount of Additional Rent stated in the Statement, Tenant may designate, within
ninety (90) days after receipt of that Statement, an independent certified public accountant to inspect Landlord’s
records. Tenant is not entitled to request that inspection, however, if Tenant is then in default under this Lease. The
accountant must be a member of a nationally recognized accounting firm and must not charge a fee based on the amount of
Additional Rent that the accountant is able to save Tenant by the inspection. Tenant must give reasonable notice to Landlord
of the request for inspection, and the inspection must be conducted in Landlord’s offices at a reasonable time or
times. If, after that inspection, Tenant still disputes the Additional Rent, a certification of the proper amount shall be
made by Landlord’s independent certified public accountant. That certification shall be final and conclusive.
of Security Deposit: Application. Concurrently with Tenant’s execution of this Lease, Tenant shall deposit
with Landlord a cash sum in the amount stated in Summary section 8 (“Security Deposit”). Landlord shall holdthe
Security Deposit as security for the performance of Tenant’s obligations under this Lease. If Tenant defaults on any
provision of this Lease, Landlord may, without prejudice to any other remedy it ha;, apply all or part of the Security
Deposit to: (a) Any Rent or other sum in default beyond any applicable notice and cure period; (b) Any amount that Landlord
may spend or become obligated to spend in exercising Landlord’s rights under Article 22; or (c) Any expense, loss, or
damage that Landlord may suffer because of Tenant’s default
waives the provisions of California Civil Code section 1950.7, and all other provisions of law now in force or that become
in force after the date of execution of this Lease, that provide that Landlord may claim from a security deposit only those
sums reasonably necessary to remedy defaults in the payment of Rent, to repair damage caused by Tenant, or to clean the
Premises. Landlord and Tenant agree that Landlord may, in addition, claim those sums reasonably necessary to compensate
Landlord for any other foreseeable or unforeseeable loss or damage cased by the act or omission of Tenant or Tenant’s
officers, agents, employees, independent contractors, or invitees.
Lease — Sysorex
Landlord’s Transfer of Security Deposit on Transfer of Real Property. If Landlord disposes of its interest in the Premises,
Landlord may deliver or credit the Security Deposit to Landlords successor in interest in the Premises and thereupon be relieved
of further responsibility with respect to the Security Deposit.
Assignment or Encumbrance of Security Deposit. Tenant may not assign or encumber the Security Deposit without the consent
of Landlord. Any attempt to do so shall be void and shall not be binding on Landlord.
Restoration of Security Deposit. If Landlord applies any portion of the Security Deposit, Tenant shall, within ten (10)
days after demand by Landlord, deposit with Landlord an amount sufficient to restore the Security Deposit to its original amount
Interest on Security Deposit. Tenant is not entitled to any interest on the Security Deposit.
Return of Security Deposit. The unused portion of the Security Deposit as set forth above shall be returned to Tenant or
the last assignee of Tenant’s interest under this Lease within thirty (30) days following the expiration or termination of the
Permitted Use. Tenant shall use the Premises solely for the “Permitted Use,” as defined in Summary section 9.
Tenant shall not use or permit the Premises to be used for any other purpose without Landlord’s prior written consent, which may
be granted or withheld in Landlord’s sole discretion.
Rules and Regulations. Tenant shall comply with the rules attached to this Lease as Exhibit D and any amendments or additions
promulgated by Landlord from time to time for the safety, care, and cleanliness of the Premises, Building, and Real Property or
for the preservation of good order (Rules and Regulations), provided that all such Rules and Regulations shall be non-discriminatory
to all tenants in the Building. Landlord shall not be responsible to Tenant for the failure of any other tenants or occupants
of the Building to comply with the Rules and Regulations except if the same arises, occurs or accrues as the result of Landlord’s
gross negligence or willful misconduct.
Additional Restrictions on Use. In addition to complying with other provisions of this Lease concerning the use of the
Premises: (a) Tenant shall not use or allow any perm to use the Premises for any purpose that is contrary to the Rules and Regulations,
that violates any Laws and Orders, that constitutes waste or nuisance, or that would unreasonably annoy other occupants of the
Building or the owners or occupants of buildings adjacent to the Building, and (b) Tenant shall comply with all recorded covenants,
conditions, and restrictions that now or later affect the Real Property provided that the same shall not adversely affect Tenants’
quiet enjoyment, possession and use of the Premises or Tenant’s business in the Premises.
Definition of “Laws and Orders.” For purposes of this Article 7, the term “Laws and Orders” includes
all federal, state, county, city, or government agency laws, statutes, ordinances, standards, rules, requirements, or orders now
in force or hereafter enacted, promulgated, or issued. The term also includes government measures regulating or enforcing public
access, occupational, health, or safety standards for employers, employees, landlords, or tenants.
Repairs. Replacements. Alterations, and Improvements. Tenant shall continuously and without exception repair and maintain
the Premises, including Tenant Improvements, Alterations, fixtures, and furnishings, in an order and condition in compliance with
all Laws and Orders. Tenant, at Tenant’s sole expense, shall promptly make all repairs, replacements alterations, or improvements
needed to comply with all Laws and Orders to the extent that the Laws and Orders relate to or are triggered by (a) Tenant’s particular
use of the Premises but not its general office use, (b) the Tenant Improvements located in the Premises, or (b) any Alterations
located in the Premises; provided, however, that Tenant shall not be obligated to make any replacement of any structural element
or system (i.e., roof, floor, HVAC, plumbing, electrical, piping, wiring) or any capital improvement (excluding any Tenant Improvements
installed by Tenant), unless such replacement or capital improvement is made necessary by Tenant’s gross negligence or wilful
misconduct and not of just ordinary and normal wear and tear.
at Landlord’s sole expense, shall promptly make all repairs, replacements, alterations, or improvements needed to
comply with all Laws and Orders to the extent that the Laws and Orders relate to the exterior or common areas of the Building. If, however, such compliance work on the exterior or common areas of the Building is triggered by the Tenant Improvements
or Alterations requested by Tenant (but not Landlord’s Work as defined in the Leasehold Improvement Agreement) sunder
Article 11, Tenant shall bear all expense of such work on the exterior or common areas of the Building.
Collateral Estoppel. The judgment of any court of competent jurisdiction, or the admission of Tenant in any judicial or
administrative action or proceeding that Tenant has violated any Laws and Orders shall be conclusive, between Landlord and Tenant,
of that fact, whether or not Landlord is a party to that action or proceeding.
Lease — Sysorex
Use of Hazardous Material. Tenant shall not cause or permit any Hazardous Material, as defined in section 8.5, to be generated,
brought onto, used, stored, or disposed of in or about the Premises or the Building by Tenant or its agents, employees, contractors,
subtenants, or invitees, except for limited quantities of standard office supplies containing chemicals categorized as Hazardous
Material. Tenant shall: (a) Use, store, and dispose of all such Hazardous Material in strict compliance with all applicable statutes,
ordinances, and regulations in effect during the Lease Term that relate to public health and safety and protection of the environment
(Environmental Laws), including those Environmental Laws identified in section 8.5; and (b) Comply at all times during the Lease
Term with all Environmental Laws.
of Release or Investigation. If, during the Lease Term ( including any extensions), Tenant has actual knowledge of (a)
any actual or threatened release of any Hazardous Material on, under, or about the Premises or the Building or (b)
any inquiry, investigation, proceeding, or claim by any government agency or other person regarding the presence of Hazardous
Material on, under, or about the Premises or the Building, Tenant shall give Landlord written notice of the release or
investigation within five (5) days after learning of it and shall simultaneously furnish to Landlord copies of any claims,
notices of violation, reports, or other writings received by Tenant that concern the release or investigation.
Indemnification. Tenant shall, at Tenant’s sole expense and with counsel reasonably acceptable to Landlord, indemnify,
defend, and hold harmless Landlord and Landlord’s shareholders, directors, officers, employees, partners, affiliates, and agents
with respect to all losses arising out of or resulting from the release of any Hazardous Material in or about the Premises or
the Building, or the violation of any Environmental Law, by Tenant or Tenant’s agents, contractors, or invitees. This indemnification
includes: (a) Losses attributable to diminution in the value of the Premises or the Building; (b) Loss or restriction of use of
rentable space in the Building; (c) Adverse effect on the marketing of any space in the Building; and (d) All other liabilities,
obligations, penalties, fines, claims, actions (including remedial or enforcement actions of any kind and administrative or judicial
proceedings, orders, or judgments), damages (including consequential and punitive damages), and costs (including attorney, consultant,
and expert fees and expenses) resulting from the release or vidation. This indemnification shall (a) not apply to any losses arising
out of Landlord’s or Landlord’s shareholders’, directors’, officers’, employees’, partners’, affiliates’, and agents’ gross negligence
or willful misconduct, and (b) shall survive the expiration or termination of this Lease.
Remediation Obligations. If the presence of any Hazardous Material brought onto the Premises or the Building by Tenant
or Tenant’s employees, agents, contractors, or invitees results in contamination of the Building, Tenant shall promptly take all
necessary actions, at Tenant’s sole expense, to return the Premises or the Building to the condition that existed before the introduction
of such Hazardous Material. Tenant shall first obtain Landlord’s approval of the proposed remedial action. This provision does
not limit the indemnification obligation set forth in section 8.3.
Definition of “Hazardous Material.” As used in this Article 8, the term “Hazardous Material” shall
mean any hazardous or toxic substance, material, or waste that is or becomes regulated by the United States, the State of California,
or any local government authority having jurisdiction over the Building. Hazardous Material includes: (a) Any “hazardous
substance,” as that term is defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(CERCLA) (42 United States Code sections 9601-9675); (b) “Hazardous waste,” as that term is defined in the Resource
Conservation and Recovery Act of 1976 (RCRA) (42 United States Code sections 6901-6992k); (c) Any pollutant, contaminant, or hazardous,
dangerous, or toxic chemical, material, or substance, within the meaning of any other applicable federal, state, or local law,
regulation, ordinance, or requirement (including consent decrees and administrative orders imposing liability or standards of
conduct concerning any hazardous, dangerous, or toxic waste, substance, or material, now or hereafter in effect); (d) Petroleum
products; (e) Radioactive material, including any source, special nuclear, or byproduct material as defined in 42 United States
Code sections 201I-2297g-4; (f) Asbestos in any form or condition; and (g) Polychlorinated biphenyls (PCBs) and substances or
compounds containing PCBs.
Tenant Utilities and Services. Subject to applicable government rules, regulations, and guidelines and the rules or actions
of the public utility furnishing the service, Landlord shall provide the following utilities and services on all days during the
Lease Term, unless otherwise stated in the Lease:
and Air-Conditioning. Landlord shall provide heating and air-conditioning when necessary for normal comfort for normal
office use in the Premises, as reasonably determined by Landlord, on Mondays through Fridays from 7 a.m. through 6 p.m and 9
am to 1 p.m. on Saturdays (Building Hours) except the dates of observation of New Year’s Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and other locally or nationally recognized holidays
Electricity. Landlord shall provide electricity for lighting and power in the Premises for normal office uses. Landlord
shall replace lamps, starters, and ballasts for Building standard lighting fixtures within the Premises on Tenant’s request and
at Tenant’s expense. Tenant shall replace lamps, starters, and ballasts for non-Building standard lighting fixtures within the
Premises at Tenant’s expense.
Water. Landlord shall provide city water from the regular Building outlets for drinking, lavatory, and toilet purposes.
Janitorial Services. Landlord shall provide janitorial services in and about the Premises on Mondays through Fridays, except
on Holidays. Landlord shall not be required to provide janitorial services to above-standard improvements installed in the Premises
such as metallic trim, wood floor covering, glass panels, interior windows, kitchens, executive workrooms, andshower facilities.
The janitorial services provided by Landlord shall be comparable to janitorial services provided in other office buildings near
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Overstandard Tenant Use. Tenant shall not, without Landlord’s prior written consent, use heat-generating machines, machines
other than normal fractional horsepower office machines, or equipment or lighting other than building standard lights in the Premises
that may affect the temperature otherwise maintained by the air-conditioning system or increase the water normally furnished to
the Premises by Landlord under section 9.1. If such consent is given, Landlord shall have the right to install supplementary air-conditioning
units or other facilities in the Premises, including supplementary or additional metering devices. On billing by Landlord, Tenant
shall pay the cost for such supplementary facilities, including the cost of (a) installation, operation, and maintenance; (b)
increased wear and tear on existing equipment and (c) other similar charges.
shall have noduty to provide heating or air-conditioning in excess of that required to be supplied by Landlord under section 9.1.
If Tenant uses water or electricity in excess of that required to be supplied by Landlord under section 9.1, Tenant shall pay
to Landlord, at billing, the cost of (a) the excess service; (b) installation, operation, and maintenance of equipment installed
to supply the excess service; and (c) increased wear and tear on existing equipment caused by Tenant’s excess consumption. Landlord
may install devices to separately meter any increased use. On demand, Tenant shall pay the increased cost directly to Landlord,
including the cost of the additional metering devices.
Interruption of Utilities. Tenant agrees that Landlord shall not be liable for damages, by abatement of Rent or otherwise,
for failure to furnish or delay in furnishing any service (including telephone and telecommunication services) or for diminution
in the quality or quantity of any service when the failure, delay, or diminution is entirely or partially causedby: (a) Breakage,
repairs, replacements, or improvements; (b) Strike, lockout, or other labor trouble; (c) Inability to secure electricity, gas,
water, or other fuel at the Building after reasonable effort to do so;(d) Accident or casualty; (e) Act or default of Tenant or
other parties; or (f) Any other cause beyond Landlord’s reasonable control. Such failure, delay, or diminution shall not be considered
to constitute an eviction or a disturbance of Tenant’s use and possession of the Premises or relieve Tenant from paying Rent or
performing any of its obligations under this Lease, unless the same arises from Landlord’s gross negligence or willful misconduct.
for damages, losses, costs, expenses and liabilities arising from Landlord’s gross negligence or willful misconduct, Landlord
shall not be liable under any circumstances for a loss of or injury to property or for injury to or interference with Tenant’s
business, including loss of profits through, in connection with, or incidental to a failure to furnish any of the utilities or
services under this Article 9. Landlord may comply with mandatory or voluntary controls or guidelinespromulgated by any government
entity relating to the use or conservation of energy, water, gas, light, or electricity or the reduction of automobile or other
emissions without creating any liability of Landlord toTenant under this Lease as long as compliance with voluntary controls or
guidelines does nut materially and unreasonably interfere with Tenant’s use of the Premises and as long as such compliance is
uniformly applied to all tenants in the Building.
Tenant’s Repair and Maintenance Obligations. Tenant shall, at Tenant’s sole expense and in accordance with the terms of
this Lease (including Article 11), keep the Premises (including all Tenant Improvements, Alterations, fixtures, and furnishings)
in good order, repair, and condition at all times during the Lease Term normal wear and tear excepted. Under Landlord’s supervision,
subject to Landlords prior approval, and within any reasonable period specified by Landlord, Tenant shall, at Tenant’s sole expense
and in accordance with the terms of this Lease (including Article 11) promptly and adequately repair all damage to the Premises
and replace or repair all damaged or broken fixtures and appurtenances. At Landlord’s option or if Tenant fails to make such repairs,
Landlord may, but need not, make the repairs and replacements. On receipt of an invoice from Landlord, Tenant shall pay Landlord
Landlord’s out-of-pocket costs incurred in connection with such repairs and replacements plus a percentage of such costs, to be
uniformly established for the Building, sufficient to reimburse Landlord for all overhead, general conditions, fees, and other
costs and expenses arising from Landlord’s involvement with such repairs and replacements. Tenant waives and releases its rights,
including its right to make repairs at Landlord’s expense, under California Civil Code sections 1941-1942 or any similar law,
statute, or ordinance now or hereafter in effect. Notwithstanding the foregoing to the contrary, Tenant shall not be obligated
to make any replacement of any fixture,appurtenance, structural element or system (i.e., roof, floor, HVAC, plumbing, electrical,
piping, wiring) or any capital improvement (other than Tenant Improvements installed by Tenant), unless such replacement or capital
improvement is made necessary by Tenant’s negligence or wilful misconduct and not of just ordinary and normal wear and tear.
Landlord’s Consent to Alterations. Tenant may not make any improvements, alterations, additions, or changes to the Premises
(Alterations) without obtaining Landlord’s prior written consent.
Procedure; Conditions. Tenant shall request such consent by written notice to Landlord, which must be accompanied by
detailed and complete plans and specifications for the proposed work. As a condition of its consent to Alterations,
Landlord may impose any requirements that Landlord considers desirable, including a requirement that Tenant provide Landlord
with a surety bond, a letter of credit, or other financial assurance that the cost of the Alterations will be paid when
Reasonable Consent. Landlord shall not unreasonably withhold its consent to proposed Alterations. The Alterations for which
Landlord may reasonably withhold consent include those that would or could: (a) Affect the structure of the Building or any portion
of the Building other than the interior of the Premises; (b) Affect the Base Building Systems (as defined below) of the Premises
or Building; (c) Result in Landlord’s being required under Laws and Orders to perform any work that Landlord could otherwise avoid
or defer (Additional Required Work); (d) Result in an increase in the demand for utilities or services that Landlord is required
to provide; or (e) Cause an increase in the premiums for hazard or liability insurance carried by Landlord. “Base Building
Systems” means all systems and equipment (including plumbing; heating, ventilation, and air-conditioning; electrical; fire/life-safety;
elevator; and security systems) that serve all or part of the Building.
Lease — Sysorex
11.1.3. Costs of Review.
Tenant shall reimburse Landlord for the reasonable fees and costs of any architects, engineers, or other consultants retained by
Landlord to review the proposed Alterations.
Compliance of Alterations With Laws and Insurance Requirements. Tenant shall cause all Alterations to comply with the following:
(a) Applicable Laws and Orders; (b) Applicable requirements of a fire-rating bureau; or (c) Applicable requirements of Landlord’s
hazard insurance carrier to the extent that Tenant is informed of them.
shall also comply with those requirements in the course of constructing the Alterations. Before beginning construction of any
Alteration, Tenant shall obtain a valid building permit and any other permits required by any government entity having jurisdiction
over the Premises. Tenant shall provide copies of those permits to Landlord before the work begins.
shall, at Tenant’s sole expense, perform any Additional Required Work in the Premises, which shall be subject to the same requirements
as any Alteration. If any Additional Required Work must be performed outside the Premises, Landlord may elect to perform that work
at Tenant’s expense. No consent by Landlord to any proposed work shall constitute a waiver of Tenant’s obligations under this
Manner of Construction. Tenant shall build Alterations entirely within the Premises and in conformance with Landlord’s
construction rules and regulations, using only contractors and subcontractors approved in writing by Landlord, which such approval
shall not be unreasonably withheld, delayed or conditioned. Any Alterations to the heating and air-conditioning system in the
Building or the Premises must be performed at Tenant’s expense by Landlord’s HVAC contractor. All work relating to any Alterations
shall be done in a good and workmanlike manner, using new materials equivalent in quality to those used in the construction of
the initial improvements to the Premises. All work shall be diligently prosecutedto completion. Tenant’s telephone equipment must
be located inside the Premises and Tenant shall be responsible for providing the telephone line from the main entry in the Building
to the Premises. Tenant shall ensure that all work is performed in a manner that does not obstruct access to or through the Building
or its common areas and that does not interfere either with other tenants’ use of their premises or with any other work being
undertaken in the Building. Tenant shall take all measures necessary to ensure hat labor peace is maintained at all times. Within
twenty (20) days after completion of any Alterations, Tenant shall deliver to Landlord a reproducible copy of the drawings of
Alterations as built.
Payment for Improvements. Tenant shall promptly pay all charges and costs incurred in connection with any Alteration, as
and when required by the terms of any agreements with contractors, designers, or suppliers. At least seven (7) days before beginning
construction of any Alteration, Tenant shall give Landlord written notice of the expected commencement date of that construction
to permit Landlord to post and record a notice of nonresponsibility. On completion of any Alteration, Tenant shall: (a) Cause
a timely notice of completion to be recorded in the office of the recorder of the county in which the Building is located, in
accordance with Civil Code section 3093 or any successor statute; (b) Deliver to Landlord evidence of full
payment and unconditional final waivers of all Iiens for labor, services, or materials; and (c) Pay to Landlord five percent (5%)
of the cost of constructing the Alteration to compensate Landlord for all overhead, costs, and expenses arising from Landlord’s
involvement with that work.
Construction Insurance. Before construction begins, Tenant shall deliver to Landlord reasonable evidence that damage to,
or destruction of, the Alterations during construction will be covered either by the policies that Tenant is required to carry
under Article 13 or by a policy of builder’s all-risk insurance in an amount approved by Landlord. If Landlord requires Tenant
to provide builder’s all-risk insurance for the proposed Alterations, Tenant shall provide a copy of the policy, any endorsements,
and an original certificate of insurance that complies with subsection 13.9.2. Tenant shall cause each contractor and subcontractor
to maintain all workers’ compensation insurance required by law and liability insurance (including property damage) in amounts
reasonably required by Landlord. Tenant shall provide evidence of that insurance to Landlord before construction begins.
Landlord’s Property. All Alterations, signs, fixtures, or equipment that may be installed or placed in or about the Premises
from time to time shall be and become the property of Landlord on installation. Tenant may remove any trade fixtures or freestanding
kitchen or office equipment that Tenant can substantiate to Landlord has not been paid for with any tenant improvement allowance
funds provided to Tenant by Landlord. Tenant must repair any damage to the Premises and Building caused by that removal. By written
notice to Tenant either before expiration of the Lease Term or within a reasonable time after any earlier termination of this
Lease, Landlord may require Tenant, at Tenant’s sole expense, to remove any Alterations and restore the Premises to their configuration
and condition before the Alterations were made. If Tenant fails to complete that restoration before expiration of the Lease Term
or, in the case of earlier termination, within fifteen (15) days after written notice from Landlord requesting the restoration,
Landlord may do so and charge the cost of the restoration to Tenant.
Improvements. If the parties have agreed on the construction of the initial improvements to the Premises,
such construction shall be governed by the terms of the Leasehold Improvement Agreement, attached to this Lease as Exhibit C,
and not the terms of this Article 11.
Non-Structural. Cosmetic Improvements. Notwithstanding anything to the contrary set forth herein, Tenant shall have the
right and be permitted, without prior notice or approval or consent of Landlord, to make non-structural and cosmetic improvements
to the Premises which do not in any one instance cost more than $20,000 provided such improvements are not visible from the outside
of the Building..
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Against Liens. Tenant shall not be the cause or object of any liens or allow such liens to exist, attach to, be placed
on, or encumber Landlord’s or Tenant’s interest in the Premises, Building, or Real Property by operation of law or
otherwise. Tenant shall not suffer or permit any lien of mechanics, material suppliers, or others to be placed against the
Premises, Building, or Real Property with respect to work or services performed or claimed to have been performed for Tenant
or materials furnished or claimed to have been furnished to Tenant or the Premises. Landlord has the right at all times to
post and keep posted on the Premises any notice that it considers necessary for protection from such liens. At least seven
(7) days before beginning construction of any Alteration or Tenant Improvements, Tenant shall give Landlord written notice of
the expected commencement date of that construction to permit Landlord to post and record a notice of
the event that there shall be recorded against the Premises or the Building or the Real Property any claim or lien arising out
of any such work performed, materials furnished or obligations incurred by Tenant and such claim or lien shall not be removed
or discharged within ten (10) days of filing, Landlord shall have the right but not the obligation to pay and discharge said lien
without regard to whether such lien shall be lawful or correct (in which case Tenant shall reimburse Landlord for any such payment
made by Landlord within ten (10) days following written demand), or to require that Tenant promptly deposit with Landlord in cash,
lawful money of the United States, one hundred fifty percent (150%) of the amount of such claim, which sum may be retained by
Landlord until such claim shall have been removed of record or until judgment shall have been rendered on such claim and such
judgment shall have become final, at which time Landlord shall have the right to apply such deposit in discharge of the judgment
on said claim and any costs, including attorneys’ fees and costs incurred by Landlord, and shall remit the balance thereof to
INDEMNIFICATION, AND INSURANCE
Definition of “Tenant Parties” and “Landlord Parties.” For purposes of this Article 13, the term “Tenant
Parties” refers singularly and collectively to Tenant and Tenant’s officers, members, partners, agents, employees, and independent
contractors as well as to all persons and entities claiming through any of these persons or entities. The term “Landlord Parties”
refers singularly and collectively to Landlord and the partners, venturers, trustees, and ancillary trustees of Landlord and the
respective officers, directors, shareholders, members, parents, subsidiaries, and any other affiliated entities, personal representatives,
executors, heirs, assigns, licensees, invitees, beneficiaries, agents, servants, employees, and independent contractors of these
persons or entities.
Exculpation. To the fullest extent permitted by law, Tenant, on its behalf and on behalf of all Tenant Parties, waives
all claims (in law, equity, or otherwise) against Landlord Parties arising out of, knowingly and voluntarily assumes the risk
of, and agrees that Landlord Parties shall not be liable to Tenant Parties for any of the following: (a) Injury to or death of
any person; or (b) Loss of, injury or damage to, or destruction of any tangible or intangible property, including the resulting
law of use, economic losses, and consequential or resulting damage of any kind from any cause. Landlord Parties shall not be liable
under this clause regardless of whether the liability results from any active or passive act, error, omission, or negligence of
any of the Landlord Parties; or is based on claims in which liability without fault or strict liability is imposed or sought to
be imposed on any of the Landlord Parties. This exculpation clause shall not apply to claims against Landlord Parties to the extent
that a final judgment of a court of competent jurisdiction establishes that the injury, loss, damage, or destruction was proximately
caused by Landlord Parties’ fraud, gross negligence, willful injury to person or property, or violation of law. The clauses of
this section 13.2 shall survive the expiration or earlier termination of this Lease until all claims within the scope of this section
13.2 are fully, finally, and absolutely barred by the applicable statutes of limitations.
Tenant’s Indemnification of Landlord Parties. To the fullest extent permitted by law, Tenant shall, at Tenant’s sole expense
and with counsel reasonably acceptable to Landlord, indemnify, defend, and hold harmless Landlord Parties from and against all
Claims, as defined in subsection 13.3.2, from any cause, arising out of or relating (directly or indirectly) to this Lease, the
tenancy created under this Lease, or the Premises, including: (a) The use or occupancy, or manner of use or occupancy, of the
Premises or Building by Tenant Parties; (b) Any act, error, omission, or negligence of Tenant Parties or of any invitee, guest,
or licensee of Tenant in, on, or about the Real Property; (c) Tenant’s conducting of its business; (d) Any alterations, activities,
work, or things done, omitted, permitted, allowed, or suffered by Tenant Parties in, at, or about the Premises or Building, including
the violation of or failure to comply with any applicable laws, statutes, ordinances, standards, rules, regulations, orders, decrees,
or judgments in existence on the Lease Commencement Date or enacted, promulgated, or issued after the date of this Lease; and
(e) Any breach or default in performance of any obligation on Tenant’s part to be performed under this Lease, whether before or
during the Lease Term or after its expiration or earlier termination. This indemnification clause shall not apply to any matters,
Claims, losses, damages, actions, injury or destruction, or otherwise, to the extent that the same arise out of Landlord’s or
any Landlord’s Parties’ fraud, gross negligence or willful injury to person or property, or violation of law.
Definition of Claims. For purposes of this Lease, “Claims” means any and all claims, losses, costs, damage, expenses,
liabilities, liens, actions, causes of action (whether in tort or contract, law or equity, or otherwise), charges, assessments,
fines, and penalties of any kind (including consultant and expert expenses, court costs, and attorney fees actually incurred).
Lease — Sysorex
Type of Injury or Loss. This indemnification extends to and includes Claims for: (a) Injury to any persons (including death
at any time resulting from that injury); (b) Loss of, injury or damage to, or destruction of property (including all loss of use
resulting from that loss, injury, damage, or destruction); and (c) All economic losses and consequential or resulting damage of
Indemnification Independent of Insurance Obligations. The indemnification provided in this Article 13 may not be construed
or interpreted as in any way restricting, limiting, or modifying Tenant’s insurance or other obligations under this Lease and
is independent of Tenant’s insurance and other obligations. Tenant’s compliance with the insurance requirements and other obligations
under this Lease shall not in any way restrict, limit, or modify Tenant’s indemnification obligations under this Lease.
Attorney Fees. The prevailing party shall be ettitled to recover its actual attorney fees and court costs incurred in enforcing
the indemnification clauses set forth in this section 13.3.
Survival of Indemnification. The clauses of this section 13.3 shall survive the expiration or earlier termination of this
Lease until all claim against Landlord Parties involving any of the indemnified matters are fully, finally, and absolutely barred
by the applicable statutes of limitations.
with Insurer Requirements. Tenant shall, at Tenant’s sole expense, comply with all requirements, guidelines, rules,
orders, and similar mandates and directives pertaining to the use of the Premises and the Building, whether imposed
by Tenant’s insurers, landlord’s insurers, or both. If Tenant’s business operations, conduct, or use of the Premises or the
Building cause any increase in the premium for any insurance policies carried by Landlord, Tenant shall, within ten (10)
business days after receipt of written notice from Landlord, reimburse Landlord for the increase. Tenant shall, at Tenant’s
sole expense, comply with all rules, orders, regulations or requirements of the American Insurance Association (formerly the
National Board of Fire Underwriters) and of any similar body.
Tenant’s Liability Coverage. Tenant shall, at Tenant’s sole expense, maintain the coverages set forth in this section 13.5.
Commercial General Liability Insurance. Tenant shall obtain commercial general liability insurance written on an “occurrence”
policy form, covering bodily injury, property damage, personal injury, and advertising injury arising out of or relating (directly
or indirectly) to Tenant’s business operations, conduct, assumed liabilities, or use or occupancy of the Premises or the Building.
The amount of Tenant’s commercial general liability insurance policy shall be not less than Two Million Dollars ($2,000,000) per
Broad Form Coverage. Tenant’s liability coverage shall include all the coverages typically provided by the Broad Form Comprehensive
General Liability Endorsement, including broad form property damage coverage (which shall include coverage for completed operations).
Tenant’s liability coverage shall further include premises-operations coverage, products-completed operations coverage, owners
and contractors protective coverage (when reasonably required by landlord), and the broadest available form of contractual liability
coverage. It is the parties’ intent that Tenant’s contractual liability coverage provide coverage to the maximum extent possible
of Tenant’s indemnification obligations under this Lease.
Primary Insured. Tenant shall be the first or primary named insured.
Additional Insureds. Landlord Parties and any lender of Landlord shall be named by endorsement in additional insureds under
Tenant’s general liability coverage.
Cross-Liability; Severability of Interests. Tenant’s general liability policies shall be endorsed as needed to provide
cross-liability coverage for Tenant, Landlord, and any lender of Landlord and to provide severability of interests.
Primary Insurance Endorsements for Additional Insureds. Tenant’s general liability policies shall be endorsed as needed
to provide that the insurance afforded by those policies to the additional insureds is primary and that all insurance carried
by Landlord Parties is strictly excess and secondary and shall not contribute with Tenant’s liability insurance.
Scope of Coverage for Additional Insureds. The coverage afforded to Landlord and any lender of Landlord must be at least
as broad as that afforded to Tenant and may not contain any terms, conditions, exclusions, or limitations applicable to Landlord
or any lender of Landlord that do not apply to Tenant.
of Certificate, Policy, and Endorsements. Before the Lease Commencement Date, Tenant shall deliver to Landlord the
endorsements referred to in this section 13.5 as well as a certified copy of Tenant’s liability policy or policies and
an original certificate of insurance, executed by an authorized agent of the insurer or insurers, evidencing compliance with
the liability insurance requirements. The certificate shall provide for no less than thirty (30) days’ advance written notice
to Landlord from the insurer or insurers of any cancellation, nonrenewal, or material change in coverage or available limits
of liability and shall confirm compliance with the liability insurance requirements in this Lease.
Concurrency of Primary. Excess, and Umbrella Policies. Tenant’s liability insurance coverage may be provided by a combination
of primary, excess, and umbrella policies, but those policies must be absolutely concurrent in all respects regarding the coverage
afforded by the policies. The coverage of any excess or umbrella policy must be at least as broad as the coverage of the primary
Lease — Sysorex
“Per Location” Endorsement. Tenant shall, at Tenant’s sole expense, procure a “per location” endorsement
or equivalent reasonably acceptable to Landlord so that the general aggregate and other limits apply separately and specifically
to the Premises.
Tenant’s Workers’ Compensation and Employer Liability Coverage Tenant shall procure and maintain workers’ compensation
insurance as required by law and employer’s liability insurance with limits of no less than one-million dollars ($1,000,000).
Tenant’s Property Insurance. Tenant shall procure and maintain property insurance coverage for: all office furniture, trade
fixtures, office equipment, merchandise, and all other items of Tenant’s property in, on, at, or about the Premises and the Building,
including property installed by, for, or at the expense of Tenant and any improvements, betterments, alteratons and additions
to the Tenant’s property insurance must be written on the broadest available “all-risk” (special-causes-of-loss) policy
form or an equivalent form acceptable to Landlord, include an agreed-amount endorsement for no less than one-hundred (100%) percent
of the full replacement cost (new without deduction for depreciation) of the covered items and property, and must meet any coinsurance
requirements of the policy or policies.
Other Tenant Insurance Coverage. Tenant shall, at Tenant’s sole expense, procure and maintain any other and further insurance
coverages that Landlord or Landlord’s lender may reasonably require.
Form of Policies and Additional Requirements.
Insurance Independent of Exculpation and Indemnification. The insurance requirements set forth in sections 13.4-13.10 are
independent of Tenant’s exculpation, indemnification, and other obligations under this Lease and shall not be construed or interpreted
in any way to restrict, limit, or modify Tenant’s exculpation, indemnification, and other obligations or to limit Tenant’s liability
under this Lease.
of Policies. In addition to the requirements set forth in this Article 13, the insurance required of Tenant must: (a)
Name Landlord and any other party Landlord specifies by endorsement as an additional insured; (b) Be issued by an
insurance company with a rating of no less than A-VIII in the current Best’s Insurance Guide, or that is otherwise acceptable
to Landlord, and admitted to engage in the business of insurance in the State of California; (c) Be primary insurance for all
claims under it and provide that any insurance carried by Landlord Parties and Landlord lenders is strictly excess,
secondary, and noncontributing with any insurance carried by Tenant; and (d) Provide that insurance may not be canceled,
nonrenewed, or the subject of material change in coverage or available limits of coverage, except on thirty (30) days’ prior
written notice to Landlord and Landlord’s lenders.
Tenant’s Delivery of Policy. Endorsements, and Certificates. Tenant shall deliver the policy or policies, along with any
endorsements to them and certificates required by this Article 13, to Landlord: (a) On or before the Lease Commencement Date;
(b) At least thirty (30) days before the expiration date of any policy; and (c) On renewal of any policy.
of Subrogation. Landlord and Tenant agree to cause the insurance companies issuing their respective property (first
party) insurance to waive any subrogation rights that those companies may have against Tenant or Landlord, respectively, as
long as the insurance is not invalidated by the waiver. If the waivers of subrogation are contained in their respective
insurance policies, Landlord and Tenant waive any right that either may have against the other on account of any loss or
damage to their respective property to the extent that the loss or damage is insured under their respective
of Damage by Landlord Tenant agrees to notify Landlord in writing promptly of any damage to the Premises resulting from
fire, earthquake, or any other identifiable event of a sudden, unexpected, or unusual nature (Casualty). If the Premises are
damaged by a Casualty or any common areas of the Building providing access to the Premises are damaged to the extent that
Tenant does not have reasonable access to the Premises and if neither Landlord nor Tenant has elected to terminate this Lease
under section 14.3 or 14.4, Landlord shall promptly and diligently restore such common areas, the Base Building of the
Premises, and the Tenant Improvements originally constructed by Landlord to substantially the same condition as existed
before the Casualty, except for modifications required by building codes and other laws and except for any other
modifications to the common areas considered desirable by Landlord. In making these modifications, Landlord shall not
materially impair Tenant’s access to the Premises. Landlord’s obligation to restore is subject to reasonable delays far
insurance adjustment and other matters beyond Landlord’s reasonable control and subject to the other clauses of this Article
14. If Tenant requests that Landlord modify the Tenant Improvements in connection with the rebuilding, Landlord may condition
its consent to those modifications on: (a) Tenant’s payment to Landlord before construction is begun of any sums in excess of
the amount of insurance proceeds received by Landlord that are needed to complete the Tenant Improvements; and (b)
Confirmation by Landlord’s architect or contractor that the modifications will not increase the scope of work or the time
necessary to complete the Tenant Improvements.
Repair Period Notice. Landlord shall, within the later of (a) sixty (60) days after the date on which Landlord determines
the full extent of the damage caused by the Casualty or (b) thirty (30) days after Landlord has determined the extent of the insurance
proceeds available to effectuate repairs, provide written notice to Tenant indicating the anticipated period for repairing the
Casualty (Repair Period Notice). The Repair Period Notice shall also state, if applicable, Landlord’s election either to repair
or to terminate the Lease under section 14.3.
Landlord’s Option To Terminate or Repair. Landlord may elect either to terminate this Lease or to effectuate repairs if
(a) The Repair Period Notice estimates that the period for repairing the Casualty exceeds two-hundred and seventy (270) days from
the date of the commencement of the repair; (b) The estimated repair cost exceeds the insurance proceeds, if any, available for
such repair (not including the deductible, if any, on Landlord’s property insurance), plus any amount that Tenant is obligated
or elects to pay for such repair; (c) The estimated repair cost of the Premises or the Building, even though covered by insurance,
exceeds fifty percent (50%) of the full replacement cost; or (d) The Building cannot be restored except in a substantially different
structural or architectural form than existed before the Casualty. Landlord’s election shall be stated in the Repair Period Notice.
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Tenant’s Option To Terminate. If the Repair Period Notice provided by Landlord indicates that the anticipated period for
repairing the Casualty exceeds two-hundred and seventy (270) days, Tenant may elect to terminate this Lease by providing written
notice (Tenant’s Termination Notice) to Landlord within ten (10) days after receiving the Repair Period Notice. If Tenant does
not elect to terminate within this ten-day (10-day) period, Tenant shall be considered to have waived the option to terminate.
Rent Abatement Due to Casualty. Landlord and Tenant agree that, if the Casualty was not the result of the gross negligence
or willful misconduct of Tenant or Tenant’s employees, contractors, licensees, or invitees, Tenant shall be provided with a proportionate
abatement of Rent based on the Rentable Square Footage of the Premises rendered unusable (due to physical damage to the Premises
or Base Building Systems or the unavailability of access to the Premises) and not used by Tenant. Subject to section 14.4, the
Rent abatement provided in this section 14.5 is Tenant’s sole remedy due to the occurrence of the Casualty. Landlord shall not
be liable to Tenant or any other person or entity for any direct, indirect, or consequential damage (including but not limited
to lost profits of Tenant or loss of or interference with Tenant’s business), whether or not caused by the negligence ofLandlord
or Landlord’s employees, contractors, licensees, or invitees, due to, arising out of, or as a result of the Casualty (including
but not limited to the termination of the Lease in connection with the Casualty).
Damage Near End of Term. Despite any other provision of this Article 14, if the Premises or the Building is destroyed or
damaged by a Casualty during the last eighteen (18) months of the Lease Term and Landlord reasonably determines that the repair
period will be longer than sixty (60) days, Landlord and Tenant shall each have the option to terminate this Lease by giving written
notice to the other of the exercise of that option within thirty (30) days after that damage or destruction.
Date of Termination: Rent Apportionment. If Landlord or Tenant elects to terminate this Lease under this Article 14 in
connection with a Casualty, this termination shall be effective thirty (30) days after delivery of notice of such
election Tenant shall pay Rent, properly apportioned up to the date of the Casualty. After the effective date of the
termination, Landlord and Tenant shall be discharged of all future obligations under this Lease, except for those provisions
that, by their terms, survive the expiration or earlier termination of the Lease.
Waiver of Statutory Provisions. The provisions of this Lease, including those in this Article 14, constitute an express
agreement between Landlord and Tenant that applies in the event of my Casualty to the Premises, Building, or Real Property. Tenant,
therefore, fully waives the provisions of any statute or regulation, including California Civil Code sections 1932(2) and 1933(4),
for any rights or obligations concerning a Casualty.
Definition of “Condemnation.” As used in this Lease, the term “Condemnation” means a permanent
taking through (a) the exercise of any government power (by legal proceedings or otherwise) by any public or quasi-public authority
or by any other party having the right of eminent domain (Condemnor) or (b) a voluntary sale or transfer by Landlord to any Condemnor,
either under threat of exercise of eminent domain by a Condemnor or while legal proceedings for condemnation are pending.
on Rights and Obligations. lf, during the Lease Term or the period between the date of execution of this Lease and the
date on which the Lease Term begins, there is any Condemnation of all or part of the Premises, Building, or Real Property on
which the Premises and Building are constructed, the rights and obligations of the parties shall be determined under this
Article 15, and Rent shall not be affected or abated except as expressly provided in this Article. Landlord shall notify
Tenant in writing of any Condemnation within thirty (30) days after the later of (a) the filing of a complaint by Condemnor
or (b) the final agreement and determination by Landlord and Condemnor of the extent of the taking (Condemnation
Termination of Lease.
Definition of “Termination Date.” The “Termination Date” shall be the earliest of: (a) The date
on which Condemnor takes possession of the property that is subject to the Condemnation; (b) The date on which title to the property
subject to the Condemnation is vested in Condemnor; (c) If Landlord has elected to terminate, the date on which Landlord requires
possession of the property in connection with the Condemnation, as specified in written notice delivered to Tenant no less than
thirty (30) days before that date; or (d) If Tenant has elected to terminate, thirty (30) days after Landlord’s receipt
of writtennotice of termination from Tenant. If both Landlord and Tenant have elected to terminate under this Article 15, the Termination
Date shall be the earliest of the dates described in subparagraphs (a)-(c).
Automatic Termination. If the Premises are totally taken by Condemnation, this Lease shall terminate as of the Termination
Date, and the Condemnation Award shall be allocated between Landlord and Tenant in accordance with section 15.5.
Right To Terminate. Landlord shall have the option to terminate this Lease if: (a) Ten percent (10%) or more of the
Rentable Square Feet of the Building or the Premises is taken through Condemnation; (b) Any portion of the Building or Real
Property necessary for Landlord to operate the Building efficiently is taken through Condemnation; or (c) Any other
areas providing access to the Premises or Building are taken through Condemnation. To elect to terminate the Lease under this
subsection 15.3.3, Landlord must provide written notice of its election (Landlord’s Taking Termination Notice) to
Tenant within thirty (30) days after the later of (a) the filing of a complaint by Condemnor or (b) the final agreement and
determination by Landlord and Condemnor of the extent of the taking. In that event, this Lease shall be terminated on the
Termination Date, and all Rent shall be prorated to that date. If Landlord does not elect to terminate under this subsection
15.3.3, Landlord shall, subject to subsection 15.3.4, be obligated to the extent of severance damages received by Landlord to
reasonably restore (to the extent feasible) the Premises or access to the Premises, subject to Landlord’s obtaining all
necessary approvals, permits, and authorizations relating to such work.
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Tenant’s Right To Terminate.
Grounds; Termination Notice. Tenant shall have the option to terminate this Lease by providing thirty (30) days’ written
notice to Landlord if one or both of the following are taken through Condemnation: (a) Twenty-five percent (25%) or more of the
Usable Square Feet of the Premises; or (b) Any portion of he Building that provides Tenant with its access to the Premises and
that, if taken, would eliminate Tenant’s access to the Premises. Tenant’s notice must be given within thirty (30) days after Tenant’s
receipt of the Condemnation Notice required by section 15.2.
Landlord’s Restoration Notice. Despite Tenant’s termination right, this Lease shall continue in full force and effect if
Landlord gives Tenant written notice (Restoration Notice) within thirty (30) days after the date on which the nature and extent
of the Condemnation are finally determined, stating that: (a) Landlord shall, at Landlord’s sole expense, reconfigure theremaining
Premises or provide alternative, reasonable access to Tenant so that the area of the Premises shall be substantially the same
after the Condemnation and Tenant shall have reasonable access to the Premises after the Condemnation; (b) Landlord shall begin
the restoration as soon as reasonably practicable; and (c) Landlord has reasonably determined that such restoration can be completed
within ninety (90) days after the date of the notice.
Waiver. Tenant agrees that its rights to terminate this Lease due to partial Condemnation are governed by this Article
15. Tenant waives all rights it may have under California Code of Civil Procedure section 1265.130, or otherwise, to
terminate this Lease based on a partial Condemnation.
Proration of Rent. If this Lease is terminated under this Article 15, the termination shall be effective on the Termination
Date, and Landlord shall prorate Rent to that date. Tenant shall be obligated to pay Rent for the period up to, but not including,
the Termination Date as prorated by Landlord. Landlord shall return to Tenant prepaid Rent allocable to any period on or after
the Termination Date.
Effect of Condemnation if Lease Is Not Terminated. If any part ofthe Premises is taken by Condemnation and this Lease is
not terminated, Rent shall be proportionately reduced based on the Rentable Square Footage of the Premises taken. Landlord and
Tenant agree to enter into an amendment to this Lease within thirty (30) days after the partial taking, confirming the reduction
in Rentable Square Footage of the Premises and the reduction in Rent. If Landlord gives Tenants timely Restoration Notice under
subsection 188.8.131.52, this Lease shall continue in full force and effect without any reduction of Rent (unless the Premises as
restored are smaller than the existing Premises, in which case Rent shall be proportionately reduced based on the reduced Rentable
Square Footage), except that Rent shall be abated for the portion of the Premises not usable by Tenant until Landlord completes
the restoration as provided in the Restoration Notice.
Allocation of Award.
Landlord’s Right to Award. Except as provided in subsection 15.5.2 in connection with a Condemnation: (a) Landlord shall
be entitled to receive all compensation and anything of value awarded, paid, or received in settlement or otherwise (Award); and
(b) Tenant irrevocably assigns and transfers to Landlord all rights to and interests in the Award and fully releases and relinquishes
any claim to, right to make a claim on, or interest in the Award, including any amount attributable to any excess of the market
value of the Premises for the remainder of the Lease Term over the present value as of the Termination Date of the Rent payable
for the remainder of the Term (commonly referred to as the “bonus value” of the Lease).
Right to Compensation. Despite subsection 15.5.1, Tenant shall have the right to make a separate claim in
the Condemnation proceeding, as long as the Award payable to Landlord is not reduced thereby, for: (a) The taking of the
unamortized or undepreciated value of any leasehold improvements owned by Tenant that Tenant has the right to remove at the
end of the Lease Term and that Tenant elects not to remove; (b) Reasonable removal and relocation costs for any leasehold
improvements that Tenant has the right to remove and elects to remove (if Condemnor approves of the removal); and (c)
Relocation costs under Government Code section 7262, the claim for which Tenant may pursue by separate action independent of
Temporary Taking. If a temporary taking of part of the Premises occurs through (a) the exercise of any government power
(by legal proceedings or otherwise) by Condemnor or (b) a voluntary sale or transfer by Landlord to any Condemnor, either under
threat of exercise of eminent domain by a Condemnor or while legal proceedings for condemnation are pending, Rent shall abate
during the time of such taking in proportion to the portion of the Premises taken. The entire Award relating to the temporary
taking shall be and remain the property of Landlord. Tenant irrevocably assigns and transfers to Landlord all rights to and interest
in the Award and fully releases and relinquishes any claim to, right to make a claim on, and any other interest in the Award.
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Consent Required; Definition of “Transfer.” Tenant shall obtain Landlord’s written consent before entering into
or permitting any Transfer. A “Transfer” consists of any of the following, whether voluntary or involurtary and whether
effected by death, operation of law, or otherwise: (a) Any assignment, mortgage, pledge, encumbrance, or other transfer of any
interest in this Lease; (b) Any sublease or occupancy of any portion of the Premises by any persons other than Tenant and its employees;
and (c) Any of the changes (e.g., a change of ownership or reorganization) included in the definition of Transfer in section 16.7.
Any person to whom any Transfer is male or sought to be made is a “Transferee.”
Landlord’s Remedies. If a Transfer fails to comply with this Article 16, Landlord may, at its option, do either or
both of the following: (a) void the Transfer or (b) declare Tenant in material and incurable default under section 21.1 notwithstanding
any cure period specified in section 21.1.
Notice. Before entering into or permitting any transfer, Tenant shall provide to Landlord a written
“Transfer Notice” at least fifteen (15) days before the proposed effective date of the Transfer. The Transfer
Notice shall include all of the following:
Information regarding the proposed Transferee, including the name, address, and ownership of Transferee; the nature of Transferee’s
business; Transferee’s character and reputation; and Transferee’s current financial statements (certified by an officer, a partner,
or an owner of Transferee); (b) All the terms of the proposed Transfer, including the consideration payable by Transferee; the
portion of the Premises that is subject to the Transfer (“Subject Space”); a general description of any planned alterations
or improvements to the Subject Space; the proposed use of the Subject Space; the effective date of the Transfer; a calculation
of the “Transfer Premium,” as defined in subsection 16.4.2, payable in connection with the Transfer; and a copy of all
documentation concerning the proposed Transfer; and (c) Any other information or documentation reasonably requested by Landlord.
Application Fee: Transfer Fee. As a condition to the effectiveness of the Transfer Notice, Tenant shall, when providing
a Transfer Notice, pay an application fee of One Thousand Five Hundred Dollars ($1,500) toward Landlord’s administrative and other
costs (including attorney fees) in reviewing and processing the Transfer Notice. Tenant shall pay the Transfer Fee whether or
not Landlord consents to the Transfer.
Limits of Consent. If Landlord consents to any Transfer and does not exercise its rights under section 16.5, the following
limits apply: (a) Landlord does not agree to waive or modify the terms and conditions of this Lease; (b) Landlord does not consent
to any further Transfer by either Tenant or Transferee; and (c) Tenant remains liable under this Lease, and any guarantor of the
Lease remains liable under the guaranty.
Consent Landlord may not unreasonably withhold its consent to any proposed Transfer that complies with this Article 16.
Reasonable grounds for denying consent include any of the following: (a) Transferee’s character, reputation, credit
history, or business is not consistent with the character or quality of the Building; (b) Transferee is either a government
agency or an instrumentality of one; (c) Transferee’s intended use of the Premises is inconsistent with the
Permitted Use or will materially and adversely affect Landlord’s interest; (d) Transferee’s financial condition
is or may be inadequate to support the Lease obligations of Transferee under the Transfer documents; or (e) The Transfer
would cause Landlord to violate another lease or agreement to which Landlord is a party or would give a Building tenant the
right to cancel its lease.
Landlord’s Written Response. Within a reasonable time after receipt of a Transfer Notice that complies with subsection
16.2.1, Landlord shall approve or disapprove the proposed Transfer in writing.
Tenant’s Remedies. If Landlord wrongfully denies or conditions its consent, Tenant may seek only declaratory and injunctive
relief. Tenant specifically waives any damage claims against Landlord in connection with the withholding of consent.
Transfer Premium Payment. As a reasonable condition to Landlord’s consent to any Transfer, Tenant shall pay to Landlord
fifty percent (50%) of any Transfer Premium. “Transfer Premium” means all base rent, additional rent, and other consideration
payable by Transferee to Tenant (including key money and bonus money) and any payment in excess of fair market value for services
rendered by Tenant to Transferee or for assets, fixtures, inventory, equipment, or furniture transferred by Tenant to Transferee
in connection with the Transfer, after deducting the Rent payable by Tenant under this Lease for the Subject Space and any out
of pocket costs incurred by Tenant in connection with such Transfer. Notwithstanding the foregoing, there shall be deducted from
the calculation of Transfer Premium all sums, costs, expenses and fees incurred by Tenant in connection with any Transfer, including,
without limitation, tenant improvement allowances, broker’s fees, attorney’s fees and the $1,500 fee payable to Landlord as set
forth herein above.
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Landlord’s Option To Recapture Space.
Landlord’s Recapture Right. Despite any other provision of this Article 16, Landlord has the option, by written notice
to Tenant (Recapture Notice) within fifteen (15) days after receiving my Transfer Notice, to recapture the Subject Space by terminating
this Lease for the Subject Space or taking an assignment or a sublease of the Subject Space from Tenant. A timely Recapture Notice
terminates this Lease or creates an assignment or a sublease for the Subject Space for the same term as the proposed Transfer,
effective as of the date specified in the Transfer Notice. If Landlord declines or fails timely to deliver a Recapture Notice,
Landlord shall have no further right under this section 16.5 to the Subject Space unless it becomes available again after Transfer
Consequences of Recapture. To determine the new Base Rent under this Lease if Landlord recaptures the Subject Space, the
original Base Rent under the Lease shall be multiplied by a fraction, the numerator of which is the Rentable Square Feet of the
Premises retained by Tenant after Landlord’s recapture and the denominator of which is the total Rentable Square Feet of the Premises
before Landlord’s recapture. The Additional Rent, to the extent that it is calculated on the basis of the Rentable Square Feet
within the Premises, shall be reduced to reflect Tenant’s proportionate share based on the Rentable Square Feet of the Premises
retained by Tenant after Landlord’s recapture. This Lease as so amended shall continue thereafter in full force and effect. Either
party may require written confirmation of the amendments to this Lease necessitated by Landlord’s recapture of the Subject Space.
If Landlord recaptures the Subject Space, Landlord shall, at Landlord’s sole expense, construct any partitions required to segregate
the Subject Space from the remaining Premises retained by Tenant. Tenant shall, however, pay for painting, covering, or otherwise
decorating the surfaces of the partitions facing the remaining Premises retained by Tenant.
Right To Collect Rent If this Lease is assigned, Landlord may collect Rent directly from Transferee. If all or part of
the Premises is subleased and Tenant defaults, Landlord may collect Rent directly from Transferee. Landlord may then apply the
amount collected from Transferee to Tenant’s monetary obligations under this Lease. Collecting Rent from a Transferee or applying
that Rent to Tenant’s monetary obligations does not waive any provisions of this Article 16.
Transfers of Ownership Interests and Other Organizational Changes.
Change of Ownership: Reorganization. For purposes of this Article 16, “Transfer” also includes: (a) If Tenant
is a partnership or limited liability company: (1) A change in ownership effected voluntarily, involuntarily, or by operation
of law of twenty-five percent (25%) or more of the partners or members or twenty-five percent (25%) or more of the partnership
or membership interests, or (2) The dissolution of the partnership or limited liability company without its immediate reconstitution;
(b) If Tenant is a closely held corporation (i.e., one whose stock is not publicly held and not traded through an exchange or
over the counter): (1) The sale or other traisfer of more than an aggregate of forty nine percent (49%) of the voting shares of
Tenant (other than to immediate family members by reason of gift or death), (2) The sale, mortgage, hypothecation, or pledge of
more than an aggregate of forty-nine percent (49%) of the value of Tenant’s unencumbered assets, or (3) The dissolution, merger,
consolidation, or other reorganization of Tenant
to Affiliate. Despite any other provision of this Lease, Landlord’s consent is not required for any Transfer to an
Affiliate, as defined in subsection 16.7.3, as long as the following conditions are met: (a) At least ten (10) business
days before the Transfer, Landlord receives written notice of the Transfer (as well as any documents or information
reasonably requested by Landlord regarding the Transfer or Transferee); (b) The Transfer is not a subterfuge by Tenant to
avoid its obligations under the Lease; (c) If the Transfer is an assignment, Transferee assumes in writing all of
Tenant’s obligations under this Lease relating to the Subject Space; and (d) Transferee has a tangible net worth, as
evidenced by financial statements delivered to Landlord and certified by an independent certified public accountant in
accordance with generally accepted accounting principles that are consistently applied (Net Worth), at least equal to
Tenant’s Net Worth either immediately before the Transfer or as of the date of this Lease, whichever is
Definition of “Affiliate.” An “Affiliate” means any entity that controls, is controlled by, or
is under common control with Tenant. “Control” means the direct or indirect ownership of more than fifty percent (50%)
of the voting securities of an entity or possession of the right to vote more than fifty percent (50%) of the voting interest
in the ordinary direction of the entity’s affairs.
Surrender of Premises. No act of Landlord or its authorized representatives shall constitute Landlord’s acceptance of a
surrender of the Premises by Tenant unless that intent is specifically acknowledged in a writing signed by Landlord. At the option
of Landlord, a surrender and termination of this Lease shall operate as an assignment to Landlord of all subleases or subtenancies.
Landlord shall exercise this option by giving notice of that assignment to all subtenants within ten (10) days after the effective
date of the surrender and termination.
of Tenant Property by Tenant. On the expiration or earlier termination of the Lease Term, Tenant shall quit the Premises
and surrender possession to Landlord in accordance with this section 17.2. Tenant shall leave the Premises in as good order
and condition as when Tenant took possession of the Premises, except for reasonable wear and tear and repairs that are
specifically made the responsibility of Landlord. On expiration or termination, Tenant shall, without expense to Landlord,
remove or cause to be removed from the Premises: (a) Al debris and rubbish; (b) Any items of furniture, equipment,
freestanding cabinet work, and other articles of personal property owned by Tenant or installed or placed by Tenant at its
expense in the Premises; (c) Any similar articles of any other persons claiming under Tenant that Landlord, in
Landlord’s sole discretion, requires to be removed; and (d) Any Alterations that Tenant is required to remove under
Article 11 provided that Tenant shall not be obligated to remove any of Landlord’s Work. Tenant shall, at
Tenant’s sole expense, repair all damage or injury that may occur to the Premises or the Building caused by
Tenant’s removal of those items and shall restore the Premises and Building to their original condition.
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Holdover Rent. If Tenant remains in possession of the Premises after expiration or earlier termination of this Lease with
Landlord’s express written consent, Tenant’s occupancy shall be a month-to-month tenancy at a rent agreed on by Landlord
and Tenant but in no event less than the Base Rent and Additional Rent payable under this Lease during the last full month before
the date of expiration or earlier termination of this Lease. The month-to-month tenancy shall be on the terms and conditions of
this Lease except as provided in (a) the preceding sentence and the lease clauses concerning the lease term, extension rights
or the like. Landlord’s acceptance of rent after such holding over with Landlord’s written consent shall not result
in any other tenancy or in a renewal of the original term of this Lease. If Tenant remains in possession of the Premises after
expiration or earlier termination of this Lease without Landlord’s consent, Tenant’s continued possession shall be
on the basis of a tenancy at sufferance and Tenant shall pay as rent during the holdover period an amount equal to One Hundred
Fifty percent (150%) of the Base Rent and Additional Rent payable under this Lease for the last full month before the date of
expiration or termination.
Consent or Waiver Implied. Nothing in this Article 18 shall be construed as implied consent by Landlord to any
holding over by Tenant. Landlord expressly reserves the right to require Tenant to surrender possession of the Premises to
Landlord as provided in this Lease on expiration or other termination of this Lease. The provisions of this Article 18 shall
not be considered to limit or constitute a waiver of any other rights or remedies of Landlord provided in this Lease or at
Obligation To Provide Estoppel Certificates. Within ten (10) business days after a written request by Landlord, Tenant
shall execute and deliver to Landlord an estoppel certificate, substantially in the form of Exhibit F (or other form
required by any existing or prospective lender, mortgagee, or purchaser of all or part of the Building), indicating in the
certificate any exceptions to the statements in the certificate that may exist at that time. The certificate shall also
contain any other information reasonably requested by Landlord or any existing or prospective lender, mortgagee, or
Additional Requested Documents or Instruments. Within ten (10) business days after a written request by Landlord, Tenant
shall execute and deliver whatever other documents or instruments may be reasonably required for sale or financing purposes, including
(if requested by Landlord) a current financial statement and financial statements for the two (2) years preceding the current
financial statement year. Those statements shall be prepared in accordance with generally accepted accounting principles.
Failure To Deliver. Tenant’s failure to execute or deliver an estoppel certificate in the required time period shall constitute
an acknowledgment by Tenant that the statements included in the estoppel certificate are true and correct, without exception.
Tenant’s failure to execute and deliver an estoppel certificate or other document or instrument required under this Article 19
in a timely manner shall be a material breach of this Lease.
NONDISTURBANCE, AND ATTORNMENT
Automatic Subordination. This Lease is subject and subordinate to: (a) The lien of any mortgages, deeds of trust or other
encumbrances (Encumbrances) of the Building and Real Property; (b) All present and future ground or underlying leases (Underlying
Leases) of the Building and Real Property now or hereafter in force against the Building and Real Property; (c) All renewals,
extensions, modifications, consolidations, and replacements of the items described in subparagraphs (a)-(b); and (d) All advances
male or hereafter to be male on the security of the Encumbrances. Despite any other provision of this Article 20, any Encumbrance
holder or Landlord may elect that this Lease shall be senior to and have priority over that Encumbrance or Underlying Lease whether
this Lease is dated before or after the date of the Encumbrance or Underlying Lease.
Agreement: Agency. This subordination is self-operative, and no further instrument of subordination shall be required to
make it effective. To confirm this subordination, however, Tenant shall, within five (5) days after Landlord’s request,
execute any further instruments or assurances in recordable form that Landlord reasonably considers necessary to evidence or
confirrn the subordination or superiority of this Lease to any such Encumbrances or Underlying Leases. Tenant irrevocably
Landlord as Tenant’s agent to execute and deliver in the name of Tenant any such instrument(s) if Tenant fails to do
so. This authorization shall in no way relieve Tenant of the obligation to execute such instrument(s) of subordination or
superiority. Tenant’s failure to execute and deliver such instrument(s) shall constitute a default under this
Attomment. Tenant covenants and agrees to attom to the transferee of Landlord’s interest in the Real Property by foreclosure,
deed in lieu of foreclosure, exercise of any remedy provided in any Encumbrance or Underlying Lease, or operation of law (without
any deductions or setoffs), if requested to do so by the transferee, and to recognize the transferee as the Landlord trader this
Lease. The transferee shall not be liable for: (a) Any acts, omissions, or defaults of Landlord that occurred before the sale
or conveyance; or (b) The return of any security deposit except for deposits actually paid to the transferee.
Notice of Default; Right To Cure. Tenant agrees to give written notice of any default by Landlord to the holder of any
prior Encumbrance or Underlying Lease. Tenant agrees that, before it exercises any rights or remedies under the Lease, the lienholder
or Landlord shall have the right, but not the obligation, to cure the default within the same time, if any, given to Landlord
tocure the default, plus an additional thirty (30) days. Tenant agrees that this cure period shall be extended by the time necessary
for the lienholder to begin foreclosure proceedings and to obtain possession of the Building or Real Property, as applicable.
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Quiet Enjoyment/Nondisturbance. Notwithstanding anything to the contrary set forth herein, upon Tenant’s paying the Base
Rent, Additional Rent and other sums provided hereunder and observing and performing all of the covenants, conditions and provisions
on Tenant’s part to be observed and performed hereunder, Tenant shall have quiet possession and enjoyment of the Premises for
he entire Term hereof, and such possession and enjoyment shall not be disturbed in any event by Landlord or any patty claiming
by, under or through Landlord or as a result of any subordination of this Lease as otherwise set forth herein
Default. The occurrence of any of the following shall constitute a default by Tenant under this Lease: (a) Tenant’s
failure to pay when due any Rent required to be paid under this Lease if the failure continues for three (3) days after
written notice of the failure from Landlord to Tenant; (b) Tenant’s failure to provide any instrument or assurance as
required by section 20.2 or estoppel certificate as required by section 19.1 if the failure continues for five (5) days after
written notice of the failure from Landlord to Tenant; (c) Tenant’s failure to perform any other obligation under this
Lease if the failure continues for thirty (30) days after written notice of the failure from Landlord to Tenant; (d)
Tenant’s abandonment of the Premises, including Tenant’s absence from the Premises for thirty (30) consecutive
days (excluding Saturdays, Sundays, and California legal holidays) while in default of any provision of this Lease; (e) To
the extent permitted by law: (1) A general assignment by Tenant or any guarantor of the Lease for the benefit of creditors;
(2) The filing by or against Tenant, or any guarantor, of any proceeding under an insolvency or bankruptcy law, unless (in
the case of an involuntary proceeding) the proceeding is dismissed within sixty (60) days; (3) The appointment of a trustee
or receiver to take possession of all or substantially all the assets of Tenant or any guarantor, unless possession is
unconditionally restored to Tenant orthat guarantor within sixty (60) days and the trusteeship or receivership is dissolved;
(4) Any execution or other judicially authorized seizure of all or substantially all the assets of Tenant located on the
Premises, or of Tenant’s interest in this Lease, unless that seizure is discharged within sixty (60) days; (f) The
committing of waste on the Premises.
Replacement of Statutory Notice Requirements. When this Lease requires service of a notice, that notice shall replace rather
than supplement any equivalent or similar statutory notice, including any notices required by Code of Civil Procedure section
1161 or any similar or successor statute. When a statute requires service of a notice in a particular manner, service of that
notice (or a similar notice required by this Lease) in the manner required by section 29.11 shall replace and satisfy the statutory
service-of-notice procedures, including those required by Code of Civil Procedure section 1162 or any similar or successor statute.
Remedies on Tenant’s Default. On the occurrence of a default by Tenant, Landlord shall have the right to pursue any
one or more of the following remedies in addition to any other remedies now or later available to Landlord at law or in
equity. These remedies are not exclusive but cumulative.
of Lease. Landlord may terminate this Lease and recover possession of the Premises. Once Landlord has terminated this
Lease, Tenant shall immediately surrender the Premises to Landlord. On termination of this Lease, Landlord may recover
from Tenant all of the following: (a) The worth at the time of the award of any unpaid Rent that had been earned at the time
of the termination, to be computed by allowing interest at the rate set forth in Article 24 but in no case greater than the
maximum amount of interest permitted by law; (b) The worth at the time of the award of the amount by which the unpaid Rent
that would have been earned between the time of the termination and the time of the award exceeds the amount of unpaid Rent
that Tenant proves could reasonably have been avoided, to be computed by allowing interest at the rate set forth in Article
24 but in no case greater than the maximum amount of interest permitted by law; (c) The worth at the time of the award of the
amount by which the unpaid Rent for the balance of the Lease Term after the time of the award exceeds the amount of unpaid
Rent that Tenant proves could reasonably have been avoided, to be computed by discounting that amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of the award plus one percent (1%); (d) Any other amount necessary to
compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform obligations under this
Lease, including brokerage commissions and advertising expenses, expenses of remodeling the Premises for a new tenant
(whether for the same or a different use), and any special concessions made to obtain a new tenant; and (e) Any other
amounts, in addition to or in lieu of those listed above, that may be permitted by applicable law.
of Lease in Effect. Landlord shall have the remedy described in Civil Code section 1951.4, which provides that, when a
tenant has the right to sublet or assign (subject only to reasonable limitations), the landlord may continue the lease in
effect after the tenant’s breach and abandonment and recover Rent as it becomes due. Accordingly, if Landlord does
not elect to terminate this Lease on account of any default by Tenant, Landlord may enforce all of Landlord’s rights
and remedies under this Lease, including the right to recover all Rent as it becomes due.
Tenant’s Subleases. Whether or not Landlord elects to terminate this Lease on account of any default by Tenant, Landlord
may: (a) Terminate any sublease, license, concession or other consensual arrangement for possession entered into by Tenant and
affecting the Premises; (b) Choose to succeed to Tenant’s interest in such an arrangement. If Landlord elects to succeed to Tenant’s
interest in such an arrangement, Tenant shall, as of the date of notice by Landlord of that election, have no further right to,
or interest in, the Rent or other consideration receivable under that arrangement
of Payment After Default. If Tenant fails to pay any amount due under this Lease within three (3) days after the due date
or if Tenant draws a check on an account with insufficient funds, Landlord shall have the right to require that any
subsequent amounts paid by Tenant to Landlord under this Lease (to cure a default or otherwise) be paid in the form of cash,
money order, cashier’s or certified check drawn on an institution acceptable to Landlord, or other form approved by
Landlord despite any prior practice of accepting payments in a different form.
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To Relet. For purposes of this Article 21, Tenant’s right to possession shall not be considered to have been
terminated by Landlord’s efforts to relet the Premises, by Landlord’s ads of maintenance or preservation with
respect to the Premises, or by appointment of a receiver to protect Landlord’s interests under this Lease. This list is merely
illustrative of acts that may he performed by Landlord without terminating Tenant’s right to possession.
Acceptance of Rent Without Waiving Rights. Under Article 24, Landlord may accept Tenant’s payments without waiving any
rights under this Lease, including rights under a previously served notice of default. If Landlord accepts payments after serving
a notice of default, Landlord may nevertheless commence and pursue an action to enforce rights and remedies under the previously
served notice of default without giving Tenant any further notice or demand.
Tenant’s Remedies on Landlord’s Default. Tenant waives any right to terminate this Lease and to vacate the Premises on Landlord’s
default under this Lease. Tenant’s sole remedy on Landlord’s default is an action for damages or injunctive or declaratory relief.
RIGHT TO PERFORM TENANT’S OBLIGATIONS
Landlord’s Right To Perform Tenant’s Obligations. All obligations to be performed by Tenant under this Lease shall be performed
by Tenant at Tenant’s expense and without any reduction of Rent. If Tenant’s failure to perform an obligation continues for ten
(10) business days after notice to Tenant, Landlord may perform the obligation on Tenant’s behalf, without waiving Landlord’s
rights for Tenant’s failure to perform any obligations under this Lease and without releasing Tenant from such obligations.
by Tenant. Within fifteen (15) days after receiving a statement from Landlord, Tenant shall pay to Landlord the amount of
expense reasonably incurred by Landlord, under section 22.1, in performing Tenant’s obligation.
Late Charges. If any Rent payment is not received by Landlord or Landlord’s designee within five (5) days after that Rent
is due, Tenant shall pay to Landlord a late charge of five percent (5%) of the amount in arrears as liquidated damages, in lieu
of actual damages (other than interest under section 23.2 and attorney fees and costs under section 26.1). Tenant shall pay this
amount for each calendar month in which all or any part of any Rent payment remains delinquent for more than five (5) days after
the due date. The parties agree that this late charge represents a reasonable estimate of the expenses that Landlord will incur
because of any late payment of Rent (other than interest and attorney fees and costs). Landlord’s acceptance of any liquidated
damages shall not constitute a waiver of Tenant’s default with respect to the overdue amount or prevent Landlord from exercising
any of the rights and remedies available to Landlord under this Lease. Tenant shall pay the late charge as Additional Rent with
the next installment of Rent.
If any Rent payment is not received by Landlord or Landlord’s designee within five (5) days after that Rent is due,
Tenant shall pay to Landlord interest on the past-due amount, from the date due until paid, at the rate of ten percent
(10%) per year. Despite any other provision of this Lease, the total liability for interest payments shall not exceed the
limits, if any, imposed by the usury laws of the State of California. Any interest paid in excess of those limits shall be
refunded to Tenant by application of the amount of excess interest paid against any sums outstanding in any order that
Landlord requires. If the amount of excess interest paid exceeds the sums outstanding, the portion exceeding those sums shall
be refunded in cash to Tenant by Landlord. To ascertain whether any interest payable exceeds the limits imposed, any
nonprincipal payment (including late charges) shall be considered to the extent permitted by law to be an expense or a fee,
premium or penalty rather than interest.
waiver. No waiver of any provision of this Lease shall be implied by any failure of Landlord to enforce any remedy for
the violation o fthat provision, even if that violation continues or is repeated. Any waiver by Landlord of any provision of
this Lease must be in writing. Such written waiver shall affect only the provision specified and only for the time and in
the manner stated in the writing.
Acceptance and Application of Payment; Not Accord and Satisfaction. No receipt by Landlord of a lesser payment than the
Rent required under this Lease shall be considered to be other than on account of the earliest amount due, and no endorsement
or statement on any check or letter accompanying a payment or check shall be considered an accord and satisfaction. Landlord may
accept checks or payments without prejudice to Landlord’s right to recover all amounts due and pursue all other remedies provided
for in this Lease.
receipt of monies from Tenant after giving notice to Tenant terminating this Lease shall in no way reinstate, continue, or
extend the Lease Term or affect the Termination Notice given by Landlord before the receipt of those monies. After serving
notice terminating this Lease, filing an action, or obtaining final judgment for possession of the Premises, Landlord may
receive and collect any Rent due, and the payment of that Rent shall not waive or affect such prior notice, action, or
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OF RIGHT TO JURY TRIAL
Waiver of Right to Jury Trial. To the maximum extent permitted by law, Landlord and Tenant waive their respective rights
to trial by jury of any contract or tort claim, counterclaim, cross-complaint, or cause of action in any action, proceeding, or
hearing brought by either patty against the other on any matter arising out of or in any way connected with this Lease, the relationship
of Landlord and Tenant, or Tenant’s use or occupancy of the Premises, including any claim of injury or damage or the enforcement
of any remedy under any current or future law, statute, regulation, code, or ordinance.
FEES AND COSTS
Attorney Fees and Costs. If either party undertakes litigation against the other party arising out of or in connection
with this Lease, the prevailing party shall be entitled to recover from the other party reasonable attorney fees and court costs
incurred. The prevailing party shall be determined under Civil Code section 1717(b)(1) or any successor statute.
ACCESS TO PREMISES
Landlord’s Access to Premises Landlord and its agents shall have the right at all reasonable times and upon reasonable
written notice to Tenant to enter the Premises to: (a) Inspect the Premises; (b) Show the Premises to prospective purchasers,
mortgagees, or tenants or to ground lessors or underlying lessors; (c) Serve, post, aid keep posted notices required by law or
that Landlordconsiders necessary for the protection of Landlord or the Building; (d) Make repairs, replacements, alterations,
or improvements to the Premises or Building that Landlord considers necessary or desirable; or (e) Perform services required of
Tenant’s Waiver. Landlord may enter the Premises without the abatement of Rent and may take steps to accomplish the stated
purposes. Tenant waives any claims for damages caused by Landlord’s entry, including damage claims for: (a) Injuries; (b) Inconvenience
to or interference with Tenant’s business; (c) Lost profits; and (d) Loss of occupancy or quiet enjoyment of the Premises except
for such claims and damages arising from Landlord’s gross negligence ani willful misconduct.
Method of Entry. For entry as permitted by this Article 27, Landlord shall at all times have a key or, if applicable, a
card key with which to unlock all the doors in the Premises, excluding Tenant’s vaults, safes, and special security areas. In
an emergency situation, Landlord shall have the right to use any means that Landlord considers proper to open the doors in and
to the Premises. Any such entry into the Premises by Landlord shall not be considered a forcible or unlawful entry into, or adetainer
of, the Premises or an actual or constructive eviction of Tenant from any portion of the Premises.
Name; Landlord’s Signage Rights. Subject to Tenant’s signage rights under this Article 28, Landlord may at
any time change the name of the Building and install, affix, and maintain all signs on the exterior and interior of the
Building as Landlord may, in Landlord’s sole discretion, desire. Tenant shall not have or acquire any property right or
interest in the name of the Building.
Tenant’s Signage Rights Within Building.
Single-Tenant Floor. If the Premises comprise an entire floor of the Building, Tenant may, at Tenant’s sole expense, install
identification signs (including its logo) anywhere in the Premises, including the elevator lobby of the Premises, subject to the
following requirements: (a) Tenant must obtain Landlord’s prior written approval for such signs, which Landlord may, in Landlord’s
sole discretion, grant or deny; (b) All signs must be in keeping with the quality, design, and style of the Building; and (c) No
sign may be visible from the exterior of the Building.
Multi-Tenant Floor. If other tenants occupy space on the floor on which the Premises are located, Tenant’s identifying
signs shall be provided by Landlord at Tenant’s expense. The signs shall be comparable to those used by Landlord for other similar
floors in the Building and shall comply with Landlord’s Building standard signage program.
Prohibited Signs and Other Items. Tenant may not display any signs on the exterior or roof of the Building or in the common
areas of the Building or the Real Property. Tenant may not install or display any signs, window coverings, blinds (even if located
behind the Landlord-approved window coverings for the Building), or other items visible from the exterior of the Premises without
Landlords prior written approval, which Landlord may, in Landlord’s sole discretion, grant or withhold. Any signs, notices, logos,
pictures, names, or advertisements that are installed by or for Tenant without Landlord’s approval may be removed withoutnotice
by Landlord at Tenant’s expense.
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Captions. The captions of articles and sections and the table of contents of this Lease are for convenience only and have
no effect on the interpretation of the provisions of this Lease.
Word Usage. Unless the context clearly requires otherwise the plural and singular numbers shall each be considered to include
the other; the masculine, feminine, and neuter genders shall each be considered to include the others; “shall,” “will,”
“must,” “agrees,” and “covenants” are each mandatory; “may” is permissive; “or”
is not exclusive; and “includes” and “including” are not limiting.
Counting Days. Days shall be counted by excluding the first day and including the last day. If the last day is a non-Business
Day, it shall be excluded. Any act required by this Lease to be performed by a certain day shall be timely performed if completed
before 5 p.m. local time on that date. If the day for performance of any obligation under this Lease is a non-Business Day, the
time for performance of that obligation shall be extended to 5 p.m. local time on the first following Business Day. As used herein,
a Business Day shall mean any day that is not a Saturday or Sunday, or a national or state or local holiday or any other day on
which commercial banks in the San Francisco Bay Area are authorized or required by law to remain closed
Entire Agreement; Amendments. This Lease and all exhibits, addendas and agreements referred to in this Lease constitute
the final, complete, and exclusive statement of the terms of the agreement between Landlord and Tenant pertaining to Tenant’s
lease of space in the Building and supersedes all prior and contemporaneous understandings or agreements of the parties. Neither
party has been induced to enter into this Lease by, and neither party is relying on, any representation or warranty outside those
expressly set forth in this Lease. This Lease may be amended only by an agreement in writing signed by Landlord and Tenant
Exhibits. The Exhibits and Addendum, if applicable, attached to this Lease are a part of this Lease and incorporated into
this Lease by reference.
Reasonableness and Good Faith. Except as limited elsewhere in this Lease, whenever this Lease requires Landlord or Tenant
to give its consent or approval to any action on the part of the other, such consent or approval shall not be unreasonably withheld
Partial Invalidity. If a court or arbitrator of competent jurisdiction holds any Lease clause to be invalid or unenforceable
in whole or in part for any reason, the validity and enforceability of the remaining clauses, or portions of them, shall not be
Binding Effect. Subject to Article 16 and sections 29.16-29.17, this Lease shall bind and benefit the parties to this Lease
and their legal representatives and successors in interest.
Independent Covenants. This Lease shall be construed as though the covenants between Landlord and Tenant are independent
and not dependent. Tenant expressly waives the benefit of any statute to the contrary and agrees that if Landlord fails to perform
its obligations under this Lease, Tenant shall not be entitled to make any repairs or perform any acts at Landlord’s expense, or
to any setoff of the Rent or other amounts owing under this Lease against Landlord. The foregoing, however, shall in no way impair
Tenant’s right to bring a separate action against Landlord for any violation by Landlord of the provisions of this Lease if notice
is first given to Landlord and any lender of whose address Tenant has been notified, and an opportunity is granted to Landlord
and that lender to correct those violations as provided in section 20.4 and subsection 21.7.1.
Governing Law. This Lease shall be construed and enforced in accordance with the laws of the State of California.
All notices (including requests, demands, approvals, or other communications) under this Lease shall be in writing.
Notice shall be sufficiently given for all purposes as follows: (a) When personally delivered to the recipient, notice
is effective on delivery; (b) When mailed first class to the last address of the recipient known to the party giving
notice, notice is effective on delivery; (c) When mailed by certified mail with return receipt requested, notice is effective
on receipt if delivery is confirmed by a return receipt; (d) When delivered by overnight delivery, such as Federal Express
or other recognized overnight delivery service, with charges prepaid or charged to the sender’s account, notice
is effective on delivery if delivery is confirmed by the delivery service; and (e) When sent by telex or fax to the last
telex or fax number of the recipient known to the party giving notice, notice is effective on receipt as long as (I) a
duplicate copy of the notice is promptly given by first-class or certified mail or by overnight delivery or (2) the receiving
party delivers a written confirmation of receipt. Any notice given by telex or fax shall be considered to have been received
on the next business day if it is received alter 5 p.m. (recipient’s time) or on a nonbusiness day.
Refused, Unclaimed, or Undeliverable Notices. Any correctly addressed notice that is refused, unclaimed, or undeliverable
because of as act or omission of the party to be notified shall be considered to be effective as of the first date that the notice
was refused, unclaimed, or considered undeliverable by the postal authorities, messenger, or overnight delivery service.
Addresses. Addresses for purposes of giving notice are set forth in section 10 of the Summary. Either party may change
its address or telex or fax number by giving the other party notice of the change in any manner permitted by this section 29.11.
Lenders and Ground Lessor. If Tenant is notified of the identity and address of Landlord’s lender or ground or underlying
lessor, Tenant shall give to that lender or ground or underlying lessor written notice of any default by Landlord under the terms
of this Lease.
Lease — Sysorex
Majeure. If performance by a party of any portion of this Lease is made impossible by any prevention, delay, or
stoppage caused by strikes; lockouts; labor disputes; acts of God; inability to obtain services, labor, or materials or
reasonable substitutes for those items; government actions; civil commotions; fire or other casualty; or other causes beyond
the reasonable control of the party obligated to perform, performance by that party for a period equal to the period of that
prevention, delay, or stoppage is excused. Tenant’s obligation to pay Rent, however, is not excused by this section
Time of the Essence. Time is of the essence of this Lease and each of its provisions.
Modifications Required by Landlord’s Lender. If any lender of Landlord or ground lessor of the Real Property requires a
modification of this Lease that will not increase Tenant’s cost or expense or materially or adversely change Tenant’s rights and
obligations, this Lease shall be so modified and Tenant shall execute whatever documents are required and deliver them to Landlord
within ten (10) days after the request
Memorandum of Lease. Except as provided in this section 29.15, neither this Lease nor any memorandum, affidavit, or other
writing relating to this Lease may be recorded by Tenant or anyone acting through, under, or on behalf of Tenant.
Recordation in violation of this provision constitutes an act of default by Tenant. On request by Landlord or any lender or
ground lessor, Tenant shall execute a short form of Lease for recordation, containing (among other customary provisions) the
names of the parties and a description of the Premises and the Lease Term. Tenant shall execute, acknowledge before a notary
public, and deliver that form to Landlord within ten (10) days after the request.
Liability of Landlord. Except as otherwise provided in this Lease or applicable law, for any breach of this Lease the liability
of Landlord (including all persons and entities that comprise Landlord, and any successor landlord) and any recourse by Tenant
against Landlord shall be limited to the interest of Landlord and Landlord’s successors in interest in and to the Building and
Real Property. On behalf of itself and all persons claiming by, through, or under Tenant, Tenant expressly waives and releases
Landlord from any personal liability for breach of this Lease.
Transfer of Landlord’s Interest. Landlord has the right to transfer all or part of its interest in the Building and Real
Property and in this Lease. On such a transfer, Landlord shall automatically be released from all liability accruing under this
Lease, and Tenant shall look solely to that transferee for the performance of Landlord’s obligations under this Lease after the
date of transfer, subject to section 5.2. Landlord may assign its interest in this Lease to a mortgage lender as additional security.
This assignment shall not release Landlord from its obligations under this Lease, and Tenant shall continue to look to Landlord
for the performance of its obligations under this Lease.
Joint and Several Obligations of Tenant. If more than one individual or entity comprises Tenant, the obligations imposed
on each individual or entity that comprises Tenant under this Lease shall be joint and several.
Submission of Lease. Submission of this document for examination or signature by the parties does not constitute an option
or offer to lease the Premises on the terms in this document or a reservation of the Premises in favor of Tenant. This document
is not effective as a lease or otherwise until executed and delivered by both Landlord and Tenant.
Legal Authority. If Tenant is a corporation, limited liability company, partnership or similar entity, each individual
executing this Lease on behalf of such entity represents and warrants that the individual is authorized to execute and deliver
this Lease on behalf of such entity and that this Lease is binding on the entity in accordance with its terms. If requested by
Landlord, Tenant agrees to deliver to Landlord satisfactory evidence of such authority.
Right To Lease. Landlord reserves the absolute right to contract with any other person or entity to be a tenant in the
Building as Landlord, in Landlord’s sole business judgment, determines best to promote the interests of the Building. Tenant does
not rely on the expectation, and Landlord does not represent, that any specific tenant or type or number of tenants will, during
the Lease Term, occupy any space in the Building.
No Air Rights. No rights to any view from the Premises or to exterior light or air to the Premises are created under this
Landlord and Tenant each represents to the other that it has had no dealings with any real estate broker or agent in
connection with the negotiation of this Lease, except for the real estate brokers or agents specified in Summary section
14 (Brokers) and that they know of no other real estate broker or agent who is entitled to a commission or finder’s fee in
connection with this Lease. Each party shall indemnify, protect, defend, and hold harmless the other party against all
claims, demands, losses, liabilities, lawsuits, judgments, and costs and expenses (including reasonable attorney fees) for
any leasing commission, finder’s fee, or equivalent compensation alleged to be owing on account of the indemnifying party’s
dealings with any real estate broker or agent other than the Brokers. The terms of this section 29.23 shall survive the
expiration or earlier termination of the Lease Term.
Transportation Management Tenant shall fully comply with all current or future compulsory programs imposed by any public
authority, intended to manage parking, transportation, or traffic in and around the Building. In connection with this compliance,
Tenant shall take responsible action for the transportation planning and management of all employees located at the Premises by
working directly with Landlord, any government transportation management organization, or other transportation-related committees
or entities. This provision includes programs such as the following: (a) Restrictions on the number of peak-hour vehicle trips
generated by Tenant; (b) Encouragement of increased vehicle occupancy through employer-sponsored financial or in-kind incentives;
(c) Implementation of an in-house or area-wide ridesharing program and appointment of an employee transportation coordinator;
and (d) Flexible work shifts for employees.
Lease — Sysorex
Pursuant to California Civil Code Section 1938, Landlord has advised Tenant that neither the Premises nor the Building have
been inspected by a Certified Access Specialist.
Except as otherwise provided in (c), below, Landlord shall be responsible for making and paying for all required disability
access improvements on the exterior and in the common areas of the Building.
Tenant shall be responsible for making and paying for all required disability access improvements within the Premises and for
all required disability access improvements on the exterior and in the common areas of the Building that are triggered by
Attachments. Attached hereto and incorporated by reference are the following exhibits and attachments:
Exhibit A - Floor Plan of Premises;
Exhibit B - Site Plan of Building;
Exhibit C - Leasehold Improvement Agreement;
Exhibit D - Rules and Regulations; and
Exhibit E - Addendum to Lease containing Addendum Paragraphs 1, 2 and 3.
as of the date stated in Summary section 1.
CORPORATION, a California corporation|
||/s/ Judson La Haye |
Judson La Haye
USA, a Virginia corporation|
||/s/ Kevin Harris |
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IMPROVEMENT AGREEMENT; PAYMENT OF SERVER ROOM ELECTRICAL CHARGES
shall provide the following improvements (“Landlord’s Work”), at Landlord’s sole cost and expense, prior to commencement
of the lease Term:
the existing carpet in a color selected by Tenant from Landlord’s building standard carpet
materials and colors.|
the Premises in a color selected by Tenant from Landlord’s building standard paint colors.|
the front entry tile with readily-available tile of a similar quality and cost as the
clean all window blinds and replace any damaged window blinds.|
all existing millwork and cabinetry in the Premises so that it is in good working order.|
the fabric wall coverings in the existing vault space and skim coat and paint those walls.|
all acoustical ceiling with Rockfon Artic 660 (2‘x2‘x5/8” tile) except in the existing
vault space area.|
||Repair, modify and/or replace, as necessary, all existing
Base Building Systems, including, without limitation, all existing HVAC, plumbing, and electrical (including all electrical outlets),
and all floors, doors, windows and ceilings, and all other aspects of the Premises, such that the same is and are in good working
order, condition and repair.|
||Deliver the Premises in broom clean condition.|
will attempt (but makes no representation that it can) complete Landlord’s Work by the scheduled Commencement Date of December
1, 2016. Except as otherwise provided in Section 2.3 of the Lease, Landlord shall not be liable (and this Lease shall not be subject
to cancellation) due to any delays due to circumstances beyond Landlord’s control. Tenant shall install its telephone and data
cabling in the ceiling no later than October 21, 2016, in order to enable Landlord to move ahead with Landlord’s Work in a timely
manner. Any delay in Landlord’s completion of Landlord’s Work caused by Tenant shall cause the free-rent period to be shortened
by the amount of the delay.
for Landlord’s Work, Tenant agrees that Landlord will have no duty to prepare the Premises for Tenant’s occupancy and Tenant agrees
to accept the Premises in its existing condition. In the event that Tenant installs a server room and HVAC system in the Premises,
Tenant shall have the electricity for the HVAC system separately metered and throughout the term of the Lease shall pay Landlord
for the electricity supplied to the HVAC unit and the server room and shall maintain throughout the lease term a maintenance contract
covering the HVAC unit reasonably approved by Landlord.
Lease — Sysorex
sign, placard, picture, advertisement, name or notice shall be inscribed, displayed or printed or affixed on or to any part of
the outside or inside of the Building without the written consent of Landlord first had and obtained and Landlord shall have the
right to remove any such sign, placard, picture, advertisement, name or notice without notice to and at the expense of Tenant.
All approved signs or lettering on doors shall be printed, painted, affixed or inscribed at the expense of Tenant by a person
approved of by Landlord. Tenant shall not place anything or allow anything to be placed near the glass of any window, door, partition
or wall which may appear unsightly from outside the Premises; provided, however, that Landlord may furnish and install a Building
standard window covering at all exterior windows. Tenant shall not without prior written consent of Landlord cause or otherwise
sunscreen any window.
sidewalks, halls, passages, exits, entrances, elevators and stairways shall not be obstructed by any Tenant’s employees, agents
or invitees or used by them for any purpose other than for ingress and egress from the respective Premises.
shall not alter any lock or install any new or additional locks or any bolts on any doors or windows of the Premises.
toilet rooms, urinals, wash bowls and other apparatus shall not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein and the expense of any breakage, stoppage or damage resulting
from the violation of this rule shall be borne by the tenant who, or whose employees or invitees shall have caused it.
shall not overload the floor of the Premises or in any way deface the Premises or any part thereof.
furniture, freight or equipment of any kind shall be brought into the Building without the prior notice to Landlord and all moving
of the same into or out of the Building shall be done at such time and in such manner as Landlord shall designate. Landlord shall
have the right to prescribe the weight, size and position of all safes and other heavy equipment brought into the Building and
also the times and manner of moving the same in and out of the Building. Safes or other heavy objects shall, if considered necessary
by Landlord, stand on supports of such thickness as is necessary to properly distribute the weight. Landlord will not be responsible
for loss of or damage to any such safe or property from any cause and all damage done to the Building by moving or maintaining
any such safe or other property shall be repaired at the expense of the Tenant.
shall not use, keep or permit to be used or kept any foul or noxious gas or substance in the Premises, or permit or suffer the
Premises to be occupied or used in a manner offensive or objectionable to the Landlord or other occupants of the Building by reason
of noise, odors, electromagnetic radiation, and/or vibrations, or interfere in any way with other tenants or those having business
therein, nor shall any animals or birds be brought in or kept in or about the Premises or the Building.
cooking appliances shall be used or permitted by Tenant on the Premises, excepting only coffee makers and microwave ovens, nor
shall the Premises be used for the storage of merchandise, for washing clothes, for lodging, or for any improper, objectionable
or immoral purpose.
shall not use or keep in the Premises or the Building any kerosene, gasoline, or inflammable or combustible fluid or material,
or use any method of heating or air conditioning other than that supplied by Landlord.
will direct electricians as to where and how telephone and telegraph wires are to be introduced. No boring or cutting for wires
will be allowed without the consent of Landlord. The location of telephones, call boxes and other office equipment affixed to
the Premises shall be subject to the approval of Landlord.
Sundays and legal holidays, Saturdays before 8:00 a.m. and after 1:00 p.m., and on other days between the hours of 7:00 p.m. and
7:00 am. the following day, access to the Building, or to the halls, corridors, elevators or stairways in the Building, or to
the Premises may be refused unless the person seeking access is known to the person or employee of the Building in charge and
has a pass or is properly identified. Landlord shall in no case be liable for damages for any error with regard to the admission
to or exclusion from the Building of any person. In case of invasion, mob, riot, public excitement, or other commotion, Landlord
reserves the right to prevent access to the Building during the continuance of the same by closing of the doors or otherwise,
for the safety of the tenants and protection of property in the Building and the Building.
reserves the right to exclude or expel from the Building any person who, in the judgment of Landlord, is intoxicated or under
the influence of liquor or drugs, or who shall in any manner do any act in violation of any of the rules and regulations of the
vending machine or machines of any description shall be installed, maintained or operated upon the Premises without the written
consent of the Landlord.
shall have the right, exercisable without notice and without liability to Tenant, to change the name and street address of the
Building of which the Premises are a part.
shall not disturb, solicit, or canvass any occupant of the Building and shall cooperate to prevent same.
Lease — Sysorex
the written consent of Landlord, Tenant shall not use the name of the Building in connection with or in promoting or advertising
the business of Tenant except as Tenant’s address.
shall have the right to control and operate the public portions of the Building, and the public facilities, and heating and air
conditioning, as well as facilities furnished for the common use of the tenants, in such manner as it deems best for the benefit
of the tenants generally.
entrance doors in the Premises shall be left locked when the Premises are not in use, and all doors opening to public conidors
shall be kept closed except for normal ingress and egress from the Premises.
Lease — Sysorex
following shall constitute an Addendum to the Lease (the “Lease”) being executed concurrently herewith between Savoy
Corporation, as Landlord, and Sysorex USA, as Tenant. The Lease covers approximately 6,211 rentable square feet of space known
as Suite 120 located on the ground floor of the Building located at 101 Larkspur Landing Circle in Larkspur, California. All defined
terms in the Lease are hereby incorporated by reference. This Addendum shall supersede and modify any inconsistent provisions
of the Lease.
Paragraph 1. Signage. Landlord, at Landlord’s expense, shall list Tenant’s business name and suite number in the Building
directory on the ground floor. Tenant, at its expense, shall provide signage on the entry door to the Premises. Subject to the
City of Larkspur and Landlord as to size, location and design, Tenant may provide signage on the exterior of the Building at Tenant’s
expense. Upon lease termination Tenant shall remove its signage and restore the Building and all exterior monuments to their condition
prior to commencement of the Term.
Paragraph 2. Option to Extend. Tenant is given the option to extend the Lease term for a period of five (5) years (the
“Extended Term”) following expiration of the initial term by giving written notice of exercise of the option at least
six (6) months and not more than nine (9) months before expiration of the initial term. Tenant’s right to exercise the option
to extend is conditioned upon the Lease being in full force and effect at the time the option is exercised and at the time the
Extended Term commences.
The terms of the Lease during the Extended Term shall be the same as the terms during the initial term except that Landlord
shall not be required to make any new leasehold improvements and except that Base Rent shall be adjusted at the start of the
Extended Term in accordance with paragraph (b), below.
Base Rent during the first year of the Extended Term shall be the fair market rental rate of the Premises as of
the commencement of the Extended Term. Within thirty (30) days after receipt of Tenant’s option notice, Landlord shall
provide written notice of Landlord’s determination of the fair market rental rate. Tenant shall have thirty (30) days
(“Tenant’s Review Period”) after receipt of Landlord’s notice of the fair market rental rate within which to accept
such fair market rental rate or to object thereto in writing, which writing shall include Tenant’s determination of the fair
market rental rate. Failure by Tenant to so object to the fair market rental rate submitted by Landlord in writing within
Tenant’s Review Period shall conclusively be deemed Tenant’s approval and acceptance thereof. In the event Tenant reasonably
objects to the fair market rental rate submitted by Landlord within Tenant’s Review Period, Landlord and Tenant shall attempt
in good faith to agree upon such fair market rental rate. If Landlord and Tenant fail to reach agreement on such fair market
rental rate within thirty (30) days following Tenant’s Review Period (the “Outside Agreement Date”), then each
party’s determination shall be submitted to appraisal as follows:
Landlord and Tenant shall each appoint a real estate appraiser with a membership in the American Institute of Estate Appraisers
or the Society of Real Estate Appraisers and at
least five (5) years full-time commercial appraisal experience in the San Francisco Bay Area. Each such appraiser shall be appointed
within fifteen (15) days after the Outside Agreement Date. The two (2) appraisers so appointed shall within fifteen (15) days
of the date of the appointment of the last appointed appraiser agree upon and appoint a third independent appraiser who shall
be qualified under the same criteria set forth above for qualification of the initial two (2) appraisers.
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The three (3) appraisers shall within thirty (30) days after the appointment of the third appraiser reach a decision as to
whether the parties shall use Landlord’s or Tenant’s submitted fair market rental rate, and shall notify Landlord and Tenant
The decision of a majority of the three (3) appraisers shall be binding upon Landlord and Tenant. If either Landlord or
Tenant fails to appoint an appraiser within the time period specified in subparagraph (i), above, the appraiser appointed by
one of them shall reach a decision based upon the same procedures as set forth above (i.e., by selecting either Landlord’s or
Tenant’s submitted fair market rental rate), and shall notify Landlord and Tenant thereof, and such appraiser’s decision
shall be binding upon Landlord and Tenant.
If the two (2) appraisers fail to agree and appoint a third independent appraiser, both appraisers shall be dismissed and
the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration
Association based upon the same procedures as set forth above (i.e., by selecting either Landlord’s or Tenant’s submitted
fair market rental rate). The decision of arbitrators selected hereunder shall be binding on the parties.
The cost of each appraiser appointed by the parties shall be paid by the party appointing the appraiser. If necessary, the
cost of the third appraiser or cost of the arbitration shall be paid by Landlord and Tenant equally.
On the commencement of the second year of the Extended Term and annually thereafter the Base Rent shall be increased by three
percent (3%) of the previous year’s Base Rent.
Tenant shall have no further option to extend the term of this Lease.
Paragraph 3. Tenant may, with Landlord’s written consent which consent shall not be unreasonably withheld, enter the Premises
prior to the Commencement Date solely for the purpose of installing its wiring and similar improvements (“Tenant’s Work”)
as long as such entry will not interfere with the orderly construction and completion of the Landlord’s Work by Landlord’s contractor.
Tenant shall notify Landlord of its desired time(s) of entry and shall submit for Landlord’s written approval the scope of the
Tenant’s Work to be performed and the name(s) of the contractor(s) who will perform such work. Tenant agrees to indemnify, defend
and hold harmless Landlord from and against any and all claims, actions, losses, liabilities, damages, costs or expenses (including,
without limitation, reasonable attorneys’ fees and claims for worker’s compensation) of any nature whatsoever, arising out of
or in connection with the Tenant’s Work (including, without limitation, claims for breach of warranty, bodily injury or property
damage). Additionally, Landlord shall provide Tenant with the sum of $12,500 (“Tenant Improvement Allowance”) for Tenant’s
Work (as opposed to Landlord’s Work which shall, as set forth above, be the sole responsibility and cost of Landlord) to be paid
on the later of the Commencement Date or the date Tenant opens for business, provided Tenant shall provide to Landlord invoices
or paid receipts evidencing said improvements having been made to the Premises. The Tenant Improvement Allowance shall be used
solely for the following Tenant Improvements:
telephone and data cabling (at a cost not to exceed $7,000), and the balance of the Tenant Improvement Allowance for Tenant improvements
to the Premises.
In the event any portion of the Tenant
Improvement Allowance remains undisbursed within ninety (90) days after the Commencement Date due to Tenant’s failure to
submit invoices or paid receipts to Landlord for the foregoing Tenant Improvements, that portion of the Tenant Improvement
Allowance shall be deemed forfeited by Tenant and shall remain the property of Landlord.
Lease — Sysorex