EXHIBIT 10(b)(5)
000 XXXXXXXXXX XXXXXX
XXXXXX LEASE AGREEMENT
This Office Lease Agreement ("Lease") is made and entered into as of December
1997, by and between XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY, a Massachusetts
corporation ("Landlord"), and METRO COMMERCE BANK, a [California
Corporation]("Tenant").
Section 1. Premises
1.1 Subject to all of the terms and conditions set forth in this Lease, Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord those certain
premises (the "Leased Premises"), as described in the attached Exhibit A. The
Leased Premises are part of the of floe building known as 000 Xxxxxxxxxx Xxxxxx
(the "Building''), located in San Francisco, California. The Leased Premises
and the Building contain the Rentable Area set forth in the Basic Lease
Information. The Building, the land and improvements under and surrounding the
Building and designated from time to time by Landlord as land or common areas
appurtenant to the Building, together with utilities, facilities, drives,
walkways and other amenities appurtenant to or servicing the Building are herein
sometimes collectively called the "Real Property. " Tenant is hereby granted
the right to the non- exclusive use of the common corridors and hallways,
stairwells, elevators, electrical and telephone closets, restrooms and other
public or common areas; provided, however, that the manner in which the public
and common areas are maintained and operated shall be at Landlord's sole
discretion and the use of the same shall be subject to such rules, regulations
and restrictions as Landlord may make from time to time. Tenant shall also have
the right to the non-exclusive use of the loading dock of the Building without
charge, which use shall also be subject to such rules, regulations and
restrictions as Landlord may make from time to time. Landlord reserves the
right to make alterations or additions to or to change the location of elements
of the Real Property and the common areas of the Real Property and the Building.
1.2 The term "RentableArea" shall be computed by measuring from the inside
surface of the exterior glass of the outer building walls, to the center of
corridor walls, and to the center of all partitions which separate the Leased
Premises from adjoining areas, plus Tenant's pro rata portion of areas common to
all tenants of the Building including, without limitation, corridors, lobbies,
rest rooms, public areas, mechanical, electrical, telephone, janitorial or
equipment room, closet or space, and spaces within the entire Building. Elevator
shafts shall be excluded in computing Rentable Area.
Section 2. Term
2.1 This Lease shall remain in effect for a term (the "Term") commencing
on the date which is the earlier to occur of the Scheduled Term Commencement
Date specified in the Basic Lease Information or the date Tenant occupies any
portion of the Premises (the "Commencement Date',) and expiring at 6:00 P.M. on
the Term Expiration Date specified in the Basic Lease Information (the
"Expiration Date") unless sooner terminated or extended as provided in this
Lease. The earlier of the Expiration Date or the date this Lease is terminated
is herein referred to as the "Termination Date".
2.2 Tenant accepts the Leased Premises in its "as is" condition, as of the
date hereof. Landlord shall have no obligation to modify or improve the Leased
Premises and shall not be liable for any claims or damages arising in connection
with any modifications or improvements.
Section 3. Use, Nuisance or Hazard
3.1The Leased Premises shall be used and occupied by Tenant solely for general
office and commercial banking (excluding retail banking) purposes without
Landlord's prior written consent, which may be given or withheld in Landlord's
sole discretion.
3.2 Tenant shall not use, occupy or permit the use or occupancy of the Leased
Premises for any purpose which Landlord, in its reasonable discretion, deems to
be illegal, immoral or dangerous; permit any public or private nuisance; do or
permit any act or thing which may disturb the quiet enjoyment of any other
tenant or occupant of the Building; keep any substance or carry on or permit any
operation which might introduce offensive odors or conditions into other
portions of the Building; use any apparatus which might make undue noise or set
up vibrations in or about the Building; permit anything to be done which would
increase the premiums paid by Landlord for fire and extended coverage insurance
on the Building or its contents or cause a cancellation of any insurance policy
covering the Building or any part thereof or any of its contents; or take any
action, fail to act or permit anything to be done which is prohibited by or
which shall in any way conflict with any Law. Should Tenant do any of the above
without Landlord's prior written consent, it shall constitute an Event of
Default and Landlord shall be entitled to exercise any of its rights and
remedies under this Lease, at law or in equity. Landlord recognizes that
tenant's business is commercial banking, however, Tenant shall not have any more
than (15) fifteen visitors in any given day.
3.3 Without limiting the generality of the above, Tenant shall promptly comply
with all requirements of the Americans with Disabilities Act (codified at 42
U.S.C. 12101, et seq.) and the regulations promulgated under it in effect
from time to time ("ADA Requirements'') relating to the conduct of Tenant's
business. Tenant shall have exclusive responsibility for compliance with ADA
Requirements pertaining to the interior of the Premises, including the design
and construction of access and egress. Landlord shall have responsibility for
compliance with ADA Requirements which affect the common areas of the Building,
subject to Tenant's obligation to pay for its share of the expense of such
compliance pursuant to Section 5 of this Lease. Tenant shall comply promptly
with any direction of any governmental authority having jurisdiction which
imposes any duty upon Tenant or Landlord with respect to the Premises or with
respect to the use or occupancy thereof. Tenant shall furnish Landlord with a
copy of any such direction promptly after receipt of the same. In addition,
Tenant shall comply with any reasonable plan adopted by Landlord which is
designed to fulfill the requirements of any Laws, including ADA Requirements.
Should compliance by Tenant with this Section 3.3 require Landlord's consent
under Section 14.1, Tenant shall promptly seek such consent, provide the
assurances and documents required by Section 14.1 and, following receipt of such
consent, promptly comply with the provisions of Section 15.1 and this Section
3.3.
If Tenant fails to comply with ADA Requirements as required in this Section 3.3,
then, after notice to Tenant, Landlord may comply or cause such compliance, in
which case Tenant shall reimburse Landlord upon demand for Landlord's costs
incurred in effecting compliance.
Section 4. Rent
4.1 Tenant shall pay to Landlord an initial base annual rental ("Base
Rent") in the amount specified in the Basic Lease Information. Reference to
"Base Rent" shall refer both to the initial Base Rent and the adjustment to it
specified in the Basic Lease Information. The Base Rent shall be due and
payable, without notice, in twelve equal installments ("Monthly Rent") in the
amount described in the Basic Lease Information by check or money order, in
advance, on or before the first day of each calendar month. In addition to the
Base Rent, Tenant shall pay any and all other sums of money as shall be become
due and payable by Tenant as set forth in this Lease ("Additional Rent"). The
Monthly Rent and/or Additional Rent are sometimes collectively called the "Rent"
and shall be paid when due in lawful money of the United States without demand,
deduction, abatement or offset at the address specified in the Basic Lease
Information or such other place as Landlord may designate from time to time.
All Rent and any other charges due and unpaid as of the Termination Date shall
be deemed due and payable on the Termination Date and, if unpaid as of such
date, shall survive the Termination Date. Landlord expressly reserves the right
to apply the payment of Base Rent to any other items of Rent that are not paid
by Tenant.
4.2 If any Rent or other amounts owing under this Lease are not paid
within five (5) days after the date due under this Lease, then Landlord and
Tenant agree that Landlord will incur additional administrative expenses, the
amount of which will be difficult, if not impossible, to determine.
Accordingly, in addition to such required payment, Tenant shall pay to Landlord,
upon demand, an additional late charge ("Late Charge"), as Additional Rent, for
any such late payment in the amount of ten percent (10%) of the amount of such
late payment. Failure to pay any applicable Late Charge shall be deemed a
Monetary Default (as defined in Section 22). This provision for the Late Charge
is in addition to all other rights and remedies available to Landlord under this
Lease, at law or in equity, and shall not be construed as liquidated damages or
limiting Landlord's remedies in any manner. Failure to charge or collect such
Late Charge in connection with any one or more such late payments shall not
constitute a waiver of Landlord's right to charge and collect such Late Charges
in connection with any other late payments.
4.3 If the Term commences on a date other than the first day of a calendar
month or terminates on a date other than the last day of a calendar month, the
Rent for such partial months shall be prorated to the actual number of days the
Lease is in effect for said partial months.
4.4 All Rents and any other amounts payable by Tenant to Landlord, if not
paid when due, shall bear interest from the date due until paid at the rate of
interest publicly announced from time to time by Bank of America National Trust
and Savings Association in San Francisco as its Reference Rate (the "Reference
Rate") plus four percent (4%) per annum, but not in excess of the maximum legal
rate permitted by law. Failure to charge or collect such interest in connection
with any one or more such late payments shall not constitute a waiver of
Landlord's right to charge and collect such interest in connection with any
other payments.
4.5 If Tenant fails to timely make two consecutive payments of Monthly Rent or
makes two consecutive payments of Monthly Rent which are returned to Landlord by
Tenant's financial institution for insufficient funds, Landlord may require, by
giving written notice to Tenant, that all future payments
of Rent shall be made in cashier's check or money order. The above is available
to Landlord under this Lease, at law or in equity.
in addition to all other remedies
4.6 Tenant shall pay to Landlord the first payment of Monthly Rent upon Tenant's
execution of this Lease. This sum shall be applied to the Base Rent for the
first month of the Term. Additionally, upon Tenant's execution of this Lease,
Tenant shall pay to Landlord the security deposit (the "Security Deposit") in
the amount specified in the Basic Lease Information as security for Tenant's
faithful performance of this Lease. Without waiving any of Landlord's other
rights and remedies under this Lease, Landlord may apply any part or all of the
Security Deposit to remedy any failure by Tenant to perform its obligations
under this Lease or to compensate Landlord for damages incurred in connection
with such failure. If Landlord so applies the Security Deposit, Tenant shall
within ten (10) days after demand from Landlord restore the Security Deposit to
the full amount required. Tenant's failure of Tenant to do so shall be an Event
of Default under this Lease. Landlord's application of the Security Deposit
shall in no event be construed as in any way limiting Tenant's liability or
obligation with respect to any such default. If Tenant has kept and performed
all terms, covenants and conditions of this Lease, Landlord will, within thirty
days following termination of this Lease, return the Security Deposit to Tenant
or the last permitted assignee of Tenant's interest under this Lease. Landlord
shall not be required to keep the Security Deposit separate from its general
funds, and Tenant shall not be entitled to interest on the Security Deposit. No
trust or fiduciary relationship is created by this Lease between Landlord and
Tenant with respect to the Security Deposit. If the Security Deposit is in the
form of a letter of credit, the letter of credit shall conform to the Letter of
Credit Requirements provided by Landlord to Tenant and shall be drawable at a
location in the San Francisco Bay Area.
Section 5. Additional Rent; Operating Expenses and Applicable Taxes
5.1 As used in this Lease, the following terms have the meanings set forth
below:
(a) "Expense Base Year" and "Tax Base Year" shall mean calendar year 1998.
(b) "Expense Comparison Year" and "Tax Comparison Year" shall mean each
successive calendar year after calendar year 1998.
(c) "Base Year" shall mean either or both of the Expense Base Year and the Tax
Base Year, and "Comparison Year" shall mean either or both of the Expense
Comparison Year and the Tax Comparison Year.
(d) "Tenant's Expense Share" shall mean the percentage of Operating Expenses set
forth in the Basic Lease Information. Tenant's Expense Share was calculated by
dividing the Rentable Area of the Premises by the total Rentable Area of the of
floe space in the Building. In the event either the Rentable Area of the
Premises and/or the total Rentable Area of the of rice space in the Building is
changed, Tenant's Expense Share shall be appropriately adjusted, and, as to the
Expense Comparison Year in which such change occurs, Tenant's Expense Share for
such year shall be prorated for the periods before and after such change on the
basis of the number of days during such Expense Comparison Year.
(e) "Tenant's Tax Share" shall mean the percentage of Applicable Taxes set forth
in the Basic Lease Information. Tenant's Tax Share was calculated by dividing
the Rentable Area of the Premises by
the total Rentable Area of the office and retail space in the Building. In the
event either the Rentable Area of the Premises or the total Rentable Area of the
office and retail space in the Building is changed, Tenant's Tax Share shall be
appropriately adjusted, and, as to the Tax Comparison Year in which such change
occurs, Tenant's Tax Share for such year shall be prorated for the periods
before and after such change on the basis of the number of days during such Tax
Comparison Year.
(f) "Operating Expenses " shall mean any and all costs and expenses paid or
incurred by Landlord in connection with the operation, maintenance, management,
repair and replacement of the Real Property. By way of illustration but not
limitation, Operating Expenses shall include the following: (i) the cost of
heating, ventilating, air conditioning, electricity, steam, water, sanitary and
storm drainage, refuse disposal and all other utilities, escalators and
elevators and the cost of supplies, equipment, maintenance, service contracts
and repairs and replacements of the systems referenced above in connection with
the same, including without limitation, costs, fees and expenses incurred by
Landlord in connection with any change of the entity providing electric service;
(ii) the cost of repairs and general maintenance and cleaning, including all
services and supplies purchased by Landlord in connection with the same; (iii)
the cost of fire, extended coverage, boiler, sprinkler, liability, property
damage, loss of rent, earthquake and other insurance covering operations of the
Building, including endorsements, all in such amounts as Landlord may reasonably
determine, and the cost of any losses payable by Landlord as a deductible; (iv)
wages, salaries and other labor costs, including supplying, replacing and
cleaning uniforms, taxes, insurance, retirement, medical and other employee
benefits; (v) reasonable fees, charges and other costs of all lawyers,
accountants, consultants and other independent contractors engaged by Landlord
in connection with the Real Property; (vi) the cost of licenses, permits and
inspections and the cost of contesting the validity or applicability of any Laws
which may affect Operating Expenses; (vii) the cost of repairs, changes,
alterations or improvements of any kind to the Building (collectively,
"Changes") in a good faith effort to comply with the requirements of any Laws
that were not applicable to the Building at the time that permits for
construction of the Building were issued, the entire cost of such changes ("Code
Costs',) to be deemed Operating Expenses in the year in which they accrue or are
paid by Landlord, except that if Landlord's accountants determine that any
portion of Code Costs must be capitalized rather than expensed, then each year
Landlord shall include in Operating Expenses only the properly chargeable
portion of capitalized Code Costs during such year based on a determination of
the useful life of the Changes for which the Code Costs were incurred together
with interest on the unamortized balance at the Reference Rate plus two percent
(2%) per annum; (viii) the cost of window coverings, carpeting and other wall or
floor coverings furnished by Landlord from time to time in public corridors and
common areas, to be capitalized, if appropriate, under clause (vii); (ix) the
cost of any capital improvements made to the Building after completion of its
construction as a labor-saving or energy conservation device or to effect other
economies in the operation or maintenance of the Building, to be capitalized if
appropriate under clause (vii); and (x) management fees paid by Landlord to
third parties or to management companies owned by, or management divisions of,
Landlord for management services directly rendered to the Building.
For purposes of computing Tenant's Expense Share under this Section 5.1,
Operating Expenses for the entire Building that are not, in Landlord's sole
discretion, allocable or chargeable solely to either the office or retail space
of the Building shall be allocated between and charged to the of Lice and retail
space of the Building on an equitable basis as determined by Landlord.
For purposes of this Lease, Operating Expenses shall not include Applicable
Taxes covered under clause (g) below, depreciation on the improvements contained
in the Building (except as provided above), the cost of capital improvements
(except as provided above). The computation of Operating Expenses, and whether a
particular item must be capitalized or expensed, shall be consistent with
generally accepted real estate accounting practices.
(g) "Applicable Taxes" shall mean all taxes, assessments and charges levied on
or with respect to the Building, the Real Property, or any personal property of
Landlord used in the operation of the same and payable by Landlord. Applicable
Taxes shall include, without limitation, all general real property taxes and
general and special assessments; fees, assessments or charges for transit,
police, fire, housing, other governmental services, or purported benefits to the
Building; service payments in lieu of taxes; and any tax, fee or excise on the
act of entering into this Lease or on the use or occupancy of the Building or
any part of it, or on the rent payable under any lease or in connection with the
business of renting space in the Building, that are now or hereafter levied on
or assessed against Landlord by, or payable by Landlord as a result of, the
requirements of the United States of America, the State of California, or any
political subdivision, public corporation, district or other political or public
entity. Applicable Taxes shall also include any other tax, fee or other excise,
however described, that may be levied or assessed as a substitute for, or as an
addition to, in whole or in part, any of taxes specified above. Applicable Taxes
shall not include franchise, transfer, inheritance or capital stock taxes or
income taxes measured by the net income of Landlord from all sources, unless,
due to a change in the method of taxation, any of such taxes are levied or
assessed against Landlord as a substitute for, in whole or in part, any other
tax which would otherwise constitute an Applicable Tax. Applicable Taxes shall
also include reasonable legal fees, costs and disbursements incurred in
connection with proceedings to contest, determine or reduce Applicable Taxes.
Notwithstanding anything to the contrary in this Lease, if any Applicable Taxes
are payable in installments, such Applicable Taxes shall be deemed to have been
paid in installments over the longest period available, and Tenant's share of
such Applicable Taxes shall only include those installments which would become
due and payable during the Term.
5.2 If, with respect to any Expense Comparison Year, the Operating Expenses
shall be higher than the Operating Expenses for the Expense Base Year, Tenant
shall pay to Landlord, as Additional Rent, Tenant's Expense Share of such
increase. If, with respect to any Tax Comparison Year, the Applicable Taxes
shall be higher than the Applicable Taxes for the Tax Base Year, Tenant shall
pay to Landlord as Additional Rent Tenant's Tax Share of such increase.
5.3 The payments contemplated under Section 5.2 shall be made as follows:
(a) During each month of each Comparison Year, Tenant shall pay to Landlord,
with each installment of Monthly Rent, such amounts as are reasonably estimated
by Landlord to be one-twelfth ( 1/1 2th) of the amounts payable under Section
5.2 with respect to each of the Tax Comparison Year and the Expense Comparison
Year. Landlord may, by written notice to Tenant, reasonably revise its estimates
for such year and subsequent payments during the Comparison Year shall be based
upon the revised estimates.
(b) With reasonable promptness after the end of each Tax and/or Expense
Comparison Year, Landlord shall deliver to Tenant a statement setting forth the
actual Operating Expenses and Applicable Taxes for the Comparison Year, a
comparison with the Operating Expenses and Applicable Taxes for
the Base Year and a comparison of any amounts payable under Section 5.2 with the
estimated payments made by Tenant. If the amounts payable under Section 5.2 are
less than the estimated payments made by Tenant, the statement shall be
accompanied by a refund of the excess by Landlord to Tenant, or, at Landlord's
election, a notice that Landlord shall credit the excess to the next succeeding
monthly installments of the Monthly Rent. If the amounts payable under Section
5.2 are more than the estimated payments made by Tenant, Tenant shall pay the
deficiency to Landlord within ten (10) days after delivery of such statement.
Statements provided by Landlord shall be final and binding upon Tenant, if
Tenant fails to contest the same within ninety (90) days after the date of
delivery to Tenant.
5.4 If the Expiration Date shall occur on a date other than the first or last
day of a Comparison Year, Tenant's Tax Share and Tenant's Expense Share for such
Comparison Year shall be prorated according to the ratio that the number of days
during said Comparison Year that the Lease was in effect bears to 365.
5.5 Notwithstanding anything to the contrary in this Lease, if during any
Expense Base Year or Expense Comparison Year the Building is less than 95%
occupied, for the purposes of computing Tenant's share of Operating Expenses for
said year, those Operating Expenses which vary based upon occupancy levels shall
be adjusted as though the Building were 95% occupied; provided, however, in no
event shall the aggregate amount billed by Landlord to all tenants in the
Building exceed the actual Operating Expenses for said year.
5.6 Tenant shall reimburse Landlord upon demand for any and all taxes required
to be paid by Landlord (subject to the same exclusions provided for in Section
5.1(g) in connection with Applicable Taxes), whether or not now customary or
within the contemplation of the parties, when:
(a) Said taxes are measured by or reasonably attributable to the cost or value
of Tenant's equipment, furniture, fixtures and other personal property located
in the Premises or by the cost or value of any leasehold improvements made in or
to the Leased Premises by or for Tenant, regardless of whether title to such
improvements shall be vested in Tenant or Landlord;
(b)Said taxes are measured by or reasonably attributable to the Base Rent and/or
Additional Rent payable hereunder, or either of them, including, without
limitation, any gross income tax or excise tax levied by any governmental entity
(local, state or federal), with respect to the receipt of such Base Rent and/or
Additional Rent;
(c) Said taxes are assessed upon or with respect to the possession, leasing,
operation, management, maintenance, alteration, repair, use or occupancy by
Tenant of the Leased Premises or any portion thereof; or
(d) Said taxes are assessed upon this transaction or any document to which
Tenant is a party creating or transferring an interest or an estate in the
Leased Premises.
The portion of any taxes payable by Tenant under this Section 5.6 and other
tenants of the Building under similar provisions in their leases shall be
excluded from Applicable Taxes for purposes of computing Tenant's Tax Share
thereof.
5.7 In the event that it shall not be lawful for Tenant to reimburse Landlord
for the items specified in Section 5.6, the Monthly Rent payable to Landlord
under this Lease shall be increased to net Landlord the same net rent, after
imposition of any such tax upon Landlord, as would have been payable to Landlord
if any such tax had not been imposed.
Section 6. Services to be Provided by Landlord
6.1 Landlord shall furnish to Tenant, while Tenant is occupying the Leased
Premises, the following services:
(a) Electrical facilities to furnish sufficient power for building standard
lighting and customary and usual office machinery in the Leased Premises, such
as typewriters, calculating machines, personal computers, and other machines of
similar low electrical consumption, but not including any item of electrical
equipment which requires electricity in excess of the building standard. Tenant
shall pay to Landlord monthly, as billed, such charges as may be separately
metered (the cost of such meter and its installation shall be borne by Tenant)
or as Landlord's engineer may compute for any electrical service in excess of
that stated above;
(b) Water for lavatory and drinking purposes at those points of supply provided
for general use of all tenants in the Building;
(c) Air conditioning and heating as reasonably required for comfortable use and
occupancy under ordinary office conditions during reasonable and customary
office hours, as determined by Landlord; and
(d) Replacement of all standard fluorescent bulbs in all areas and all
incandescent bulbs in public areas, rest room areas, and stairwells, and routine
maintenance and electric lighting service for all public areas of the Building
in a manner and to the extent deemed by Landlord to be standard.
6.2 Landlord shall not be liable for any loss or damage arising or alleged to
arise in connection with the failure, stoppage or interruption of any such
services; nor shall the same be construed as an eviction of Tenant, result in an
abatement of Rent, entitle Tenant to any reduction in Rent, or relieve Tenant
from the operation of any covenant or condition of this Lease. Landlord reserves
the right to temporarily discontinue such services or any of them at such times
as may be necessary or appropriate by reason of accident, unavailability of
employees, repairs, alterations, or improvements, or strikes, lockouts, riots,
acts of God or any other happening or occurrence beyond Landlord's reasonable
control. In the event of any such failure, stoppage or interruption of services,
Landlord shall use reasonable diligence to have the same restored. Neither
diminution nor shutting off of light or air or both nor any other effect on the
Building by any structure erected or condition now or subsequently existing on
lands adjacent to the Building shall affect this Lease, xxxxx Rent, or otherwise
impose any liability on Landlord.
6.3 Landlord shall have the right to reduce heating, cooling or lighting within
the Leased Premises and in the public area in the Building as required by any
mandatory fuel or energy-saving
program. Landlord shall be entitled to cooperate voluntarily in a reasonable
manner with the efforts of national, state or local governmental bodies or of
utilities suppliers in reducing energy or other resources consumption.
Landlord's acts under this Section 6.3 shall not affect this Lease, xxxxx Rent
or otherwise impose any liability on Landlord.
6.4 Unless otherwise provided by Landlord, Tenant shall separately arrange with
the applicable local public authorities or utilities, as the case may be, for
the furnishing of and payment for all telephone services as may be required by
Tenant in the use of the Leased Premises. Tenant shall directly pay for such
telephone services, including the establishment and connection thereof, at the
rates charged for such services by said authority or utility. Tenant's failure
to obtain or to continue to receive such services for any reason whatsoever
shall not relieve Tenant of any of its obligations under this Lease.
6.5 Landlord shall have the right to contract for electrical service with a
different entity than currently providing electrical service to the Building.
Tenant shall cooperate with Landlord at all times, and as reasonably necessary,
shall allow Landlord or any electrical service provider designated by Landlord,
access to the electric lines, wiring, feeders, risers and other machinery in the
Premises. Landlord shall in no way be liable or responsible for any loss, damage
or expense that Tenant may sustain by reason of any change, failure,
interference, disruption or defect in the supply or character of the electricity
supplied to the Leased Premises as a result of such change in the electric
service provider.
6.6 The above services are the only services which Landlord shall be required to
provide to Tenant. Without limiting the above, Landlord shall not be required to
provide, and Tenant expressly waives, any right to receive, any security
services with respect to the Leased Premises or the Building. It is expressly
understood and agreed that Landlord shall have no liability to Tenant for injury
or losses due to theft or burglary caused by unauthorized persons in the
Building.
Section 7. Repairs and Maintenance by Landlord
7.1 Landlord shall provide for the cleaning and maintenance of the Building in
keeping with the ordinary standard for office buildings similar to the Building
as a part of Operating Expenses. Unless otherwise expressly stipulated herein,
Landlord shall not be required to make any improvements or repairs of any kind
or character to the Leased Premises during the Term, except such repairs as may
be required to the Building's exterior walls, corridors, windows, roof and other
structural elements and equipment of the Building, and such additional
maintenance as may be necessary because of the damage caused by persons other
than Tenant, its agents, employees, licensees or invitees.
7.2 Landlord, or Landlord's officers, agents and representatives (subject to any
security regulations imposed by any governmental authority) shall have the right
to enter all parts of the Leased Premises at all reasonable hours to inspect,
make repairs, alterations, and additions to the Building or the Leased Premises
which Landlord may deem necessary or desirable, to make repairs to adjoining
spaces, to cure any Event of Default that Landlord elects to cure, to show the
Leased Premises to prospective Tenants, or to provide any service which it is
obligated or elects to furnish to Tenant. Tenant shall not be entitled to any
abatement or reduction of Rent by reason of Landlord's right of entry. Landlord
shall have the right to enter the Leased Premises at any time and by any means
in the case of an emergency. Tenant hereby waives and releases its right to make
repairs at Landlord's expenses under Sections
1932(1), 1941 and 1942 of the California Civil Code or under any similar law,
statute or ordinance now or subsequently in effect.
Section 8. Repairs and Care of Building by Tenant
8.1 If the Building or any portion of the Building, including without
limitation, the elevators, boilers, engines, pipes and other apparatus, or
elements of the Building (or any of them) used for the purpose of climate
control of the Building or operating the elevators, or if the water pipes,
drainage pipes, electric lighting or other equipment of the Building or the roof
or outside walls of the Building or the Leased Premises' improvements, including
without limitation, the carpet, wall covering, doors and woodwork, become
damaged or are destroyed through negligence, carelessness or misuse by Tenant,
its agents, employees, licensees or invitees, then the cost of the necessary
repairs, replacements or alterations shall be borne by Tenant, who shall
promptly pay the same on demand to Landlord as Additional Rent. Landlord shall
have the exclusive right, but not the obligation, to make any repairs
necessitated by such damage.
At its sole cost and expense, Tenant shall repair or replace any damage or
injury done to the Building, or any part of the Building, caused by Tenant,
Tenant's agents, employees, licensees or invitees which Landlord elects not to
repair. Tenant shall not darnage or injure the Building or the Leased Premises
and shall maintain the Leased Premises in a clean, attractive condition and in
good repair. If Tenant fails to keep the Leased Premises in such good order,
condition and repair as required under this Lease to Landlord's satisfaction,
Landlord may restore the Leased Premises to such good order and condition and
make such repairs without liability to Tenant for any loss or damage that may
accrue to Tenant's Property or business by reason of the same, Tenant shall pay
to Landlord the cost of repairs and of restoring the Leased Premises to good
order and condition, plus an additional charge of fifteen percent (15%) upon
billing by Landlord. Upon the Termination Date, Tenant shall surrender and
deliver up the Leased Premises to Landlord in the same condition as existed at
the Commencement Date, excepting only ordinary wear and tear and damage arising
from any cause not required to be repaired by Tenant.
Section 9. Tenant's Equipment and Installations; Excess Utilities
Except for desk or table mounted typewriters, calculating machines, personal
computers, and other similar office equipment, Tenant shall not install any
fixtures, equipment, facilities or other improvements without Landlord's
specific prior written consent. Tenant shall not, without Landlord's prior
written consent, use heat generating machines other than normal fractional
horsepower office machines, or equipment or lighting, other than building
standard lights in the Leased Premises, which may affect the temperature
otherwise maintained by the air conditioning system or increase the electricity
or water normally furnished for the Leased Premises. If such consent is given,
Landlord shall have the right to install supplementary air conditioning units or
other facilities in the Leased Premises, and the cost thereof, including the
cost of installation, operation and maintenance, increased wear and tear on
existing equipment and other similar charges, shall by paid by Tenant to
Landlord upon billing by Landlord. Said costs shall include the cost of
electrical metering or surveying necessary to determine the additional operating
cost attributable to the supplementary equipment. Landlord shall also have the
right to impose reasonable additional charges (payable by Tenant to Landlord
upon billing) by reason of Tenant's off- hours or additional use of utilities or
services, for the use of non-standard machines,
equipment or lighting, and because of the carelessness of Tenant or the nature
of Tenant's business. Tenant shall not, without Landlord's prior written
consent, install additional lighting or equipment requiring electric current to
be supplied to the Leased Premises in excess of the building standard. If such
consent is given, Tenant shall pay to Landlord upon billing for the cost of such
excess consumption.
Section 10. Force Majeure
Landlord shall not be liable for, and Tenant shall not be entitled to any
reduction of the Base Rent or Additional Rent by reason of, Landlord's failure
to furnish any of the services or utilities described in this Lease whether such
failure is caused by acts of God, accident, breakage, repairs, strikes, lockouts
or other labor disturbances or disputes of any character, interruption of
service by suppliers thereof, unavailability of materials or labor, or by any
other cause, similar or dissimilar, beyond the reasonable control of Landlord,
or by rationing or restrictions on the use of said services and utilities due to
energy shortages or other causes, or the making of repairs, alterations or
improvements to the Leased Premises or Building, whether or not any of the above
result from acts or omissions of Landlord. Furthermore, Landlord shall not be
liable under any circumstances for a loss of or injury to Tenant's Property or
for injury to or interference with Tenant's business, including without
limitation, loss of profits, however occurring, and Tenant shall not be relieved
of its obligation to pay the full Base Rent or Additional Rent by reason of the
same.
Section 11. Mechanic's and Materialman's Liens
11.1 Tenant shall not suffer or permit any mechanic's or materialman's lien to
be filed against the Leased Premises or any portion of the Building by reason of
work, labor, services, or materials supplied or claimed to have been supplied to
Tenant. Nothing in this Lease shall be deemed or construed in any way as
constituting the consent or request of Landlord, expressed or implied, by
inference or otherwise, for any contractor, subcontractor, laborer or
materialman to perform any labor or to furnish any materials or to make any
specific improvement, alteration or repair of or to the Leased Premises or any
portion of the Building, nor of giving Tenant any right, power or authority to
contract for, or permit the rendering of, any services or the furnishing of any
materials that could give rise to the filing of any mechanic's or materialman's
lien against the Leased Premises or any portion of the Building. Landlord shall
have the right at all times to post and keep posted on the Leased Premises any
notices which it deems necessary for protection from such liens.
11.2 If any such mechanic's or materialman's lien shall at any time be filed
against the Leased Premises or any portion of the Building as the result of any
act or omission of Tenant, Tenant covenants that it shall, within ten (10) days
after Tenant has notice of the claim for lien, procure the discharge thereof by
payment or by giving security or in such other manner as may be required or
permitted by law or which shall otherwise satisfy Landlord. If Tenant fails to
take such action, Landlord, in addition to any other right or remedy it may
have, may take such action as may be necessary to protect its interests. Any
amounts paid by Landlord in connection with such action and all reasonable legal
and other expenses of Landlord incurred in connection with the same, including
attorney's fees and costs, court costs and other necessary disbursements shall
be repaid by Tenant to Landlord on billing by Landlord as Additional Rent.
Section 12. Insurance
12.1 Landlord may maintain during the Term a commercial (comprehensive)
liability insurance policy (written on an occurrence, not claims made, basis)
including coverage for contractual liability, public liability and property
damage in a commercially reasonable amount, as determined by Landlord, covering
the Building. Landlord may maintain during the Term a policy of insurance
insuring the Building against loss or damage due to fire and other casualties
covered by a standard "all risk" coverage policy. Such coverage in such amounts
as Landlord may from time to time determine may include the risks of lightning,
vandalism and malicious mischief, and, at the option of Landlord, the risks of
earthquakes and additional hazards, a rental loss endorsement and one or more
loss payee endorsements in favor of the holders of any mortgages or deeds of
trust encumbering the interest of Landlord in the Building or the ground or
underlying lessors. The parties acknowledge that the premiums for insurance
specified in Section 12.1 are Operating Expenses, as defined in Section 5.
12.2 At its own expense, Tenant shall maintain during the Term a commercial
(comprehensive) liability insurance policy (written on an occurrence, not claims
made, basis),including~ ,/ coverage for contractual liability public liability
and property damage in the amount of Four Million and 00/100 Dollars
($4,000,000.00) Per person and per occurrence for personal injuries or deaths of
persons occurring in or about the Leased Premises.
12.3 At its own expense, Tenant shall maintain during the Term "all risk"
casualty insurance for the full replacement value of all Alterations and all of
Tenant's Property and other items in the Premises.
12.4 At its own expense, Tenant shall maintain during the Term workers'
compensation insurance and all such other insurance as may be required by
applicable Laws.
12.5 All insurance required of Tenant shall: (a) as to any liability policies,
name Landlord, and any other party which Landlord so specifies, as additional
insureds; (b) specifically cover the liability assumed by Tenant under this
Lease; (c) be issued by an insurance company which has a general policy holder's
rating of not less than "A", and a financial rating of not less than Class "X",
in the most current edition of Best's Insurance Reports, and which is licensed
to do business in the State of California; (d) be primary insurance as to all
claims thereunder; (e) provide that said insurance shall not be canceled or
coverage changed unless thirty (30) days' prior written notice shall have been
given to Landlord, any other named insured and the holders of any mortgages or
deeds of trust referred to above; and (f) shall not eliminate cross-liability
and shall contain a severability of interest clause. Tenant shall deliver
certificates thereof to Landlord on or before the Commencement Date and at least
thirty days before the expiration dates thereof. In the event Tenant shall fail
to procure such insurance, or to deliver such certificates, Landlord may,
without waiving any of its rights or remedies, procure such policies for the
account of Tenant, and the cost thereof shall be paid by Tenant as Additional
Rent upon billing by Landlord. Tenant's compliance with the provisions of this
Section 12 shall in no way limit Tenant's liability under any of the other
provisions of this Lease. The limits of insurance required to be maintained by
Tenant shall not be a limitation on any obligation of Tenant, including Tenant's
indemnification obligations under Section 21 below. Not more frequently than
once every two years, Landlord may require Tenant to increase the amount of
liability insurance coverage if, in the opinion of Landlord's lender or
insurance consultant, the amount of such coverage is not then adequate.
12.6 Landlord and Tenant shall have their respective insurance companies issuing
property damage insurance waive any rights of subrogation that such companies
may have against Landlord or Tenant, as the case may be, so long as the
insurance carried by Landlord and Tenant, respectively, is not invalidated
thereby. As long as such waivers of subrogation are contained in their
respective insurance policies, Landlord and Tenant hereby waive any right that
either may have against the other on account of any loss or damage to their
respective property to the extent such loss or damage is insured under policies
of insurance for fire and all risk coverage, theft, public liability, worker's
compensation or other similar insurance.
Section 13. Quiet Enjoyment
Provided Tenant has performed all its obligations under this Lease, including
but not limited to the payment of Rent and all other sums due, Tenant shall
peaceably and quietly hold and enjoy the Leased Premises for the Term, without
hindrance by Landlord, subject to the provisions and conditions set forth in
this Lease.
Section 14. Alterations
14.1 Tenant shall not make or allow to be made any alterations, physical
additions, or improvements in or to the Leased Premises (collectively,
"Alteratinfzs") without first obtaining Landlord's written consent in each
instance, which consent may be given or withheld in Landlord's sole discretion.
At the time of said request, Tenant shall submit to Landlord plans and
specifications of the proposed Alterations. Landlord shall have a period of not
less than sixty (60) days in which to review and approve or disapprove said
plans. Tenant shall pay upon demand the reasonable costs of Landlord's review of
such plans and specifications, not to exceed One Thousand Dollars ($1,000.00).
The contractor or person selected by Tenant to make Alterations must be approved
in writing by Landlord prior to commencement of any work. Such contractor or
person shall carry insurance in forms and amounts reasonably satisfactory to
Landlord and shall at all times be subject to Landlord's rules and regulations
while in the Building. All Alterations shall be performed in full compliance
with plans and specifications approved by Landlord, all applicable Laws and the
requirements of the Board of Underwriters, Fire Rating Bureau or similar body.
All Alterations shall be performed at Tenant's sole cost and expense (including
reasonable costs for Landlord's supervision), at such time and in such manner as
Landlord may designate, and shall be promptly completed in a good and
workmanlike manner. Tenant shall pay to Landlord its review and supervision
costs upon billing by Landlord. Landlord's approval of the plans, specifications
and working drawings for Tenant's Alterations shall create no responsibility or
liability on the part of Landlord for their completeness, design sufficiency, or
compliance with all applicable Laws.
14.2 In addition to, and not in limitation of, the sixty (60) day period
Landlord has to review Tenant's plans and specifications for the Alterations,
Tenant shall give to Landlord at least fifteen (15) business days' prior written
notice of commencement of construction of any Alterations. Landlord shall have
the right to require that (a) any contractor hired by Tenant shall, prior to
commencing work in the Leased Premises, provide Landlord with a performance bond
and labor and materials payment bond in the amount of the contract price for the
work, naming Landlord and Tenant (and any other persons designated by Landlord)
as co-obligees, and that (b) any such contractor employ such labor as necessary
to avoid any delay in or interruption to the progress of work undertaken in the
Leased Premises or elsewhere in the Building due to union picket lines. Tenant's
contractors shall not use any portion of the common areas of the Building for
performance of the work unless Landlord's written consent is first obtained. The
granting or withholding of such consent shall be at Landlord's sole discretion.
14.3 All Alterations, whether made by Tenant or Landlord or at either's expense,
including, without limitation, all Tenant Improvement Work and all carpeting and
fixtures of any kind, shall become a part of the Building immediately upon
installation in the Leased Premises, and shall be and remain the property of
Landlord, except for trade fixtures, office supplies and moveable furniture and
furnishings placed on the Premises by Tenant that are removable without damage
to the Building or the Leased Premises, which shall be subject to Section 16.
Notwithstanding any other provisions of this Lease, upon Landlord's written
request made within thirty (30) days prior to the expiration or termination of
this Lease, Tenant at Tenant's sole cost and expense shall promptly remove any
Alterations or Tenant Improvement Work (if any), designated by Landlord to be
removed, and promptly repair any damage to the Premises or the Building
resulting from such removal.
14.4 Tenant shall be responsible for the entire cost of the Alterations,
including any cost or expense of Landlord, relating to the interior of the
Leased Premises, on account of the need to comply with the ADA (as defined in
Section 33) or other Laws. Under no circumstances shall Landlord be responsible
to Tenant or any third party for determining whether the Alterations comply with
all applicable Laws, including the ADA, regardless of whether Tenant must obtain
Landlord's approval of the Alterations or the plans and specifications therefor
as a condition to making them.
14.5 Should any construction, alteration, addition, improvements or decoration
of the Leased Premises, or moving into or out of Building, by Tenant interfere
with harmonious labor relations at the Building, all such work shall be halted
immediately by Tenant until such time as construction can proceed without such
interference.
Section 15. Furniture, Fixtures and Personal Property
15.1 Tenant, at its sole cost and expense, may remove its trade fixtures, of
flee supplies and moveable office furniture and equipment not attached to the
Building or Leased Premises ("Tenant's Property") provided:
(a) such removal is made prior to the Termination Date;
(b) no Event of Default exists at the time of such removal, and
(c) Tenant promptly repairs all damage to the Premises or the Building caused
by such removal.
15.2 If Tenant does not remove Tenant's Property prior to the Termination Date
(unless prior arrangements have been made with Landlord and Landlord has agreed
in writing to permit Tenant to leave any items of Tenant's Property in the
Leased Premises for an agreed period), then, in addition to its other remedies
at law or in equity, Landlord shall have the right to have such items removed
and stored at Tenant's sole cost and expense and all damage to the Building or
the Leased Premises resulting
from said removal shall be repaired at Tenant's cost. Any such items not removed
prior to the Termination Date, shall, at Landlord's option, subject to
applicable Laws, become the property of Landlord upon the Termination Date, and
Tenant shall not have any further rights with respect thereto or reimbursement
therefor.
15.3 All furnishings, fixtures, equipment, effects and property of every kind,
nature and description of Tenant and of all persons claiming by, through or
under Tenant which, during the Term or any occupancy of the Leased Premises by
Tenant or anyone claiming under Tenant, may be on the Leased Premises or
elsewhere in the Building shall be at the sole risk and hazard of Tenant. If the
whole or any part thereof is destroyed or damaged by fire, water or otherwise,
or by the leakage or bursting of water pipes, steam pipes, or other pipes, by
theft, or from any other cause, no part of said loss or damage is to be charged
to or be borne by Landlord.
Section 16. Taxes
During the Term, Tenant shall pay, prior to delinquency, all business and other
taxes, charges, notes, duties and assessments levied, and rates or fees imposed,
charged, or assessed against or in respect of Tenant's occupancy of the Leased
Premises or in respect of the trade fixtures, furnishings, equipment, and all
other personal property of Tenant contained in the Building, and shall hold
Landlord harmless from and against all payment of such taxes, charges, notes,
duties, assessments, rates, and fees. Tenant shall cause said fixtures,
furnishings, equipment, and other personal property to be assessed and billed
separately from the real and personal property of Landlord. In the event any or
all of Tenant's fixtures, furnishings, equipment, and other personal property
shall be assessed and taxed with Landlord's real property, Tenant shall pay to
Landlord Tenant's share of such taxes within ten (10) days after delivery to
Tenant by Landlord of a statement in writing setting forth the amount of such
taxes applicable to Tenant's Property.
Section 17. Assignment and Subletting
17.1 Neither Tenant nor Tenant's legal representatives nor successors in
interest by operation of law or otherwise shall assign this Lease or sublease
the Leased Premises or any part thereof or mortgage, pledge or hypothecate its
leasehold interest, nor make any attempt to do so, without Landlord's prior
written consent. Any such attempt shall be void and constitute an Event of
Default. This prohibition against assigning or subletting shall be construed to
include a prohibition against any assignment or subletting by operation of law.
The voluntary or other surrender of this Lease by Tenant or a mutual
cancellation of it shall not work a merger and shall, at the option of Landlord,
terminate all or any existing subleases or may, at the option of Landlord,
operate as an assignment to Landlord of Tenant's interest in any or all such
subleases.
17.2 The following shall constitute a prohibited assignment subject to Section
17.1: (a) a sale, transfer, pledge or hypothecation by Tenant of all or
substantially all of its assets or all or substantially all of its stock, if
Tenant's stock is publicly traded; (b) a merger of Tenant with another
corporation; (c) the sale, transfer, pledge or hypothecation of fifty percent or
more of Tenant's stock if Tenant's stock is not publicly traded; or (d) the
sale, transfer, pledge or hypothecation of fifty percent (50%) or more Tenant's
beneficial ownership interest if Tenant is a partnership, limited liability
company, or other entity; provided, however, that Landlord's consent shall not
be required for the assignment of the Lease
or subletting of the Leased Premises to a Permitted Affiliate. For purposes
hereof, the term "Permitted Affliate" means a subsidiary of Tenant with an
independent net worth as of the date of the proposed assignment or subletting
equal to or greater than the net worth of Tenant as of the date of this Lease.
17.3 Tenant shall give Landlord written notice of its desire to assign this
Lease or sublease the Leased Premises or any portion thereof. At the time of
giving such notice, Tenant shall provide Landlord with a copy of the proposed
assignment or sublease document, and such information as Landlord may reasonably
request concerning the proposed sublessee or assignee to assist Landlord in
making an informed judgment regarding the financial condition, reputation,
operation and general desirability of the proposed sublessee or assignee.
Landlord shall then have a period of thirty (30) days following receipt of such
notice within which to notify Tenant in writing of Landlord's election to:
(a) terminate this Lease as to the space so affected as of the date specified by
Tenant, in which event Tenant shall be relieved of all obligations accruing
under this Lease after the termination as to the Leased Premises or such
portion, after paying all Rent due as of the Termination Date, or
(b) permit Tenant to assign or sublet the Leased Premises or such portion, or
(c) refuse to consent to Tenant's assignment or subletting of the Leased
Premises or such portion and to continue this Lease in full force and effect as
to the entire Leased Premises.
If Landlord should fail to notify Tenant of its election within the thirty (30)
day period, Landlord shall be deemed to have elected option (c). In the event of
any approved assignment or subletting, the rights of any such assignee or
sublessee shall be subject to all of the terms, conditions and provisions of
this Lease, including without limitation restrictions on use and the covenant to
pay Rent. If Landlord approves the proposed assignment or subletting, Tenant
may, not later than ninety (90) days thereafter, enter into such assignment or
sublease with the proposed assignee or sublessee upon the terms and conditions
set forth in the notice provided to Landlord, and eighty percent (80%) of the
Excess Rent received by Tenant shall be paid to Landlord as and when received by
Tenant. "Excess Rent" means any rent or other consideration received by Tenant
in excess of (i) the Base Rent and Additional Rent payable hereunder (or the
amount thereof proportionate to the portion of the Leased Premises subject to
such sublease in the case of a sublease of a portion of the Premises) and (ii)
reasonable brokerage commissions incurred in connection with such sublease or
assignment. No such consent to or recognition of any such assignment or
subletting shall constitute a release of Tenant or any guarantor of Tenant's
performance from further performance by Tenant or such guarantor of covenants
undertaken to be performed by Tenant. Tenant and/or such guarantor shall remain
liable and responsible for all Rent and other obligations of Tenant under this
Lease. Consent by Landlord to a particular assignment, sublease or other
transaction shall not be deemed a consent to any other or subsequent
transaction. Whether or not Landlord consents to any assignment, sublease or
other transaction, Tenant shall pay Landlord an administrative fee of Five
Hundred Dollars ($500) and any reasonable attorneys' fees or accountant's fees
and costs actually incurred by Landlord in connection with such transaction. All
documents utilized by Tenant to evidence any subletting or assignment for which
Landlord's consent has been requested, shall be subject to prior approval by
Landlord or its attorney.
17.4 If this Lease is assigned to any person or entity under the United States
Bankruptcy Code, 11 U.S.C. Section 101 et. seq. (the "Bankruptcy Code"), any and
all monies or other consideration
payable or otherwise to be delivered in connection with such assignment shall be
paid or delivered to Landlord, shall be and remain the exclusive property of
Landlord, and shall not constitute property of Tenant or of the estate of Tenant
within the meaning of the Bankruptcy Code. Any such monies or other
consideration not paid or delivered to Landlord shall be held in trust for the
benefit of Landlord and shall be promptly paid or delivered to Landlord. Any
person or entity to whom this Lease is so assigned shall be deemed, without
further act or deed, to have assumed all of the obligations arising under this
Lease as of the date of such assignment. Upon demand therefor, any such assignee
shall execute and deliver to Landlord an instrument confirming such assumption.
In no event shall Tenant have any right to sublet or assign if there exists any
Event of Default or circumstances which, with notice or passage of time,
would constitute an Event of Default.
17.5 Subject to the above, any consents required by Landlord under this Section
18 shall not be unreasonably withheld or untimely delayed. In considering a
proposed assignment or sublease, it shall not be unreasonable for Landlord to
consider (a) whether a proposed use is compatible with the tenant mix in the
Building, (b) the extent of Alterations required, (c) financial condition,
character and reputation of the proposed sublessee or assignee, and (d) other
non-economic factors, in considering whether to give its consent.
Section 18. Fire and Casualty
18.1 Tenant shall promptly notify Landlord of any damage to the Leased Premises
resulting from fire or any other casualty. Subject to the remaining provisions
of this Section 19, if the Leased Premises or the Building are damaged by fire
or other casualty insured against by Landlord's fire and all risk coverage
insurance policy, and sufficient proceeds (apart from any applicable deductible)
are made available to Landlord to fully cover the cost of repair, Landlord shall
promptly undertake such repairs, so long as such repairs can, in Landlord's
reasonable opinion, be made within one hundred-eighty (180) days after the date
of such damage and this Lease shall remain in full force and effect. If (a) such
repairs cannot, in Landlord's reasonable opinion, be made within one hundred
eighty (180) days after the date of such damage, or (b) insufficient proceeds
are made available to Landlord to fully cover the cost of repair, or (c) the
casualty is not covered by insurance policies Landlord is required to carry
pursuant to Section 12.1, then Landlord may elect, by written notice to Tenant
given within sixty (60) days after the date of such damage, to either: (i)
restore or repair such damage, in which event this Lease shall continue in full
force and effect, or (ii) terminate this Lease as of a date specified in such
notice, which date shall not be less than thirty (30) nor more than sixty (60)
days after the date such notice is given. In calculating the cost of repair,
Landlord shall be entitled to take into account the cost of bringing the
damaged, destroyed or remaining portions of the Leased Premises and the Building
into compliance with any then-applicable Laws (including ADA Requirements).
18.2 If such fire or other casualty shall have damaged the Leased Premises, and
if such damage is not the result of the negligence or willful misconduct of
Tenant or any persons claiming by, through or under Tenant or any of their
employees, agents, contractors, invitees or licensees, then during the period a
portion of the Leased Premises is rendered unusable by such damage Tenant shall
be entitled to a reduction in the Base Rent and Additional Rent in the
proportion that the Rentable Area of the Leased Premises rendered unusable as a
result of such damage bears to the total Rentable Area of the
Leased Premises. If any damage to the Leased Premises is due to the negligence
or willful misconduct of Tenant or any of the other parties described in the
preceding sentence, then there shall be no abatement of the Base Rent or
Additional Rent by reason of such damages, except to the extent Landlord is
reimbursed for such abatement of the Base Rent or Additional Rent pursuant to
any rental insurance policies Landlord has chosen to obtain pursuant to Section
12.1.
18.3 Notwithstanding any other provision of this Lease, Landlord shall not be
required to repair any injury or damage to or to make any repairs to or
replacements of any Alterations or any other improvements installed in the
Leased Premises by or for Tenant, other than the Tenant Improvements, and Tenant
shall, at Tenant's sole cost and expense, repair and restore all such
Alterations and improvements in the same condition as existed prior to such
event. Except as provided in Section 19.2, Tenant shall not be entitled to any
compensation or damages from Landlord for damage to any Alterations, or Tenant's
Property, for loss of use of the Premises or any part thereof, for any damage to
or interference with Tenant's business, loss of profits, or for any disturbance
to Tenant caused by any casualty or the restoration of the Leased Premises
following such casualty.
18.4 The provisions of this Lease, including this Section 19, constitute an
express agreement between Landlord and Tenant with respect to any and all damage
to, or destruction of, all or any part of the Leased Premises, the Building or
any other portion of the Real Property, and any statute or regulation of the
State of California, including without limitation, Sections 1932(2) and 1933(4)
of the California Civil Code, with respect to any rights or obligations
concerning damage or destruction in the absence of an express agreement between
the parties and any other statute or regulation, now or subsequently in effect,
shall have no application to this Lease or any damage or destruction to all or
any part of the Leased Premises, the Building or any other portion of the Real
Property. Tenant hereby specifically waives all rights to terminate this Lease
under said Civil Code sections or any similar laws.
18.5 If the Building or the Leased Premises are damaged to any extent during the
last twelve months of the Term, Landlord may elect to terminate this Lease by
written notice to the other within thirty (30) days after the damage occurs.
Section 19. Condemnation
19.1 If more than fifty percent (50%) of the Rentable Area ofthe Leased Premises
is taken under power of eminent domain or sold, transferred or conveyed in lieu
thereof, either Landlord or Tenant shall have the right to terminate this Lease
as of the earliest of the date of vesting of title or the date possession is
taken by the condemning authority. Such right shall be exercised by giving of
written notice to the other party on or before said date. If any part of the
Building other than the Leased Premises is taken under power of eminent domain
or sold, transferred or conveyed in lieu thereof, Landlord may terminate this
Lease at its option as of the earlier of the date of vesting of title or the
date possession is taken by the condemning authority. In either of such events,
Landlord shall receive the entire award which may be made in such taking or
condemnation, and Tenant hereby assigns to Landlord any and all rights of Tenant
now or hereafter arising in or to the same whether or not attributable to the
value of the unexpired portion of this Lease; provided, however, that nothing
contained herein shall be deemed to give Landlord any interest in or to require
Tenant to assign to Landlord any award made to Tenant for the taking of Tenant's
Property or for the interruption of or damage to Tenant's business or for
Tenant's moving expenses.
19.2 In the event of a taking of any portion which is less than fifty percent
(50%) of the Rentable Area of the Leased Premises, or a sale, transfer, or
conveyance in lieu thereof, or if this Lease is not terminated by Landlord or
Tenant as provided above, then this Lease shall automatically terminate as to
the portion of the Leased Premises so taken as of the earlier of the date of
vesting of title or the date possession is taken by the condemning authority,
and the Base Rent as well as the Additional Rent shall be apportioned according
to the ratio that the remaining Rentable Area of the Leased Premises bears to
the total original Rentable Area of the Leased Premises. Tenant hereby waives
any and all rights it might otherwise have pursuant to Section 1265.130 of
California Code of Civil Procedure or any similar provisions of Laws now or
hereafter in effect.
19.3 In the event of temporary taking of all or any portion of the Leased
Premises for a period of ninety (90) days or less, then this Lease shall not
terminate but the Base Rent and the Additional Rent shall be abated for the
period of such taking in proportion to the ratio that the remaining Rentable
Area of the Premises bears to the total Rentable Area of the Leased Premises.
Landlord shall be entitled to receive the entire award made in connection with
any such temporary taking.
Section 20. Indemnification
20.1 Landlord shall not be liable to Tenant for and Tenant hereby waives all
claims against Landlord for damage to any property or injury, illness or death
of any person in, upon, or about the Leased Premises, the Building or the Real
Property arising at any time and from any cause whatsoever except to the extent
caused by the gross negligence or willful misconduct of Landlord or its
employees or agents. Without limiting the generality of the foregoing, Landlord
shall not be liable for any damage or damages of any nature whatsoever to
persons or property caused by explosion, fire, theft, breakage or the misconduct
of third parties, by sprinkler, drainage or plumbing systems, by failure for any
cause to supply adequate drainage, by the interruption of any public utility or
service, by steam, gas, water, rain or other substances leaking, issuing or
flowing into any part of the Leased Premises, by the existence of asbestos or
other hazardous or toxic substances in the Building or the Premises as more
particularly described in Section 32, by natural occurrence, acts of a public
enemy, riot, strike, insurrection, war, court order, requisition or order of
governmental body or authority, or for any damage or inconvenience which may
arise through repair, maintenance or alteration of any part of the Building, or
by anything done or omitted to be done by any tenant, occupant or person in the
Building. In addition, Landlord shall not be liable for any loss or damage for
which Tenant is required to insure or for any loss or damage resulting from any
construction, alterations or repair by Landlord or by others.
20.2 Tenant shall defend, with counsel approved by Landlord, indemnify and save
harmless, Landlord, any partner, trustee, stockholder, of ricer, director,
employee or beneficiary of Landlord, holders of mortgages or deed to trust
covering the Leased Premises or the Building and any other party having an
interest therein ( "Indemnif ed Parties ") from and against any and all
liabilities, losses damages, costs, expenses (including reasonable attorneys'
fees and expenses), causes of action, suits, claims, demands or judgments of any
nature (a) to which any Indemnified Party is subject because of its estate or
interest in the Leased Premises, the Building or the Real Property, or (b)
arising from (i) injury to or death of any person, or damage to or loss of
property, on the Leased Premises, the Building or the Real Property, or on
adjoining sidewalks, streets or ways, or connected with the use, condition or
occupancy of any thereof (except to the extent caused by the gross negligence or
willful misconduct of
Landlord or its agents or employees), (ii) any violation by Tenant in the
observance or performance of its obligations under this Lease, or (iii) any act,
fault, omission, negligence or other misconduct of Tenant or its agents,
contractors, licenses, sublessees or invitees. Tenant shall use and occupy the
Leased Premises and other facilities of the Building at its own risk, and hereby
releases the Indemnified Parties from any and all claims for any damage or
injury to the fullest extent permitted by Law.
20.3 The provisions of this Section 21 shall survive the expiration or sooner
termination of this
Lease.
Section 21. Default by Tenant
21.1 The term "Event of Default" refers to the occurrence of any one or more of
the following:
(a) failure of Tenant to pay when due any Base Rent, Additional Rent or any
other monetary sum required to be paid hereunder (a "Monetary Default");
(b) failure of Tenant, after ten (10) days written notice, to observe and
perform any other of Tenant's obligations, covenants or agreements under this
Lease; provided, however, that if such nonmonetary default cannot reasonably be
cured within ten ( 10) days, then the default shall not be deemed to be uncured
if Tenant commences to cure the default promptly, and in any event within ten
(10) days from Landlord's notice, and continues to diligently complete the cure
within a reasonable time;
(c) if Tenant, or any guarantor of Tenant's obligations under this Lease (a
"Guarantor',), admits in writing that it cannot meet its obligations as they
become due; or is declared insolvent according to any law; or assignment of
Tenant's or Guarantor's property is made for the benefit of creditors; or a
receiver or trustee is appointed for Tenant or Guarantor or its property; or the
interest of Tenant or Guarantor under this Lease is levied on under execution or
other legal process; or any petition is filed by or against Tenant or Guarantor
to declare Tenant bankrupt or to delay, reduce or modify Tenant's debts or
obligations; or any petition is filed or other action taken to reorganize or
modify Tenant's or Guarantor's capital structure, if Tenant is a corporation or
other entity; provided that, any involuntary levy, execution, legal process or
petition filed against Tenant or Guarantor shall not constitute an Event of
Default provided Tenant or Guarantor shall vigorously contest the same by
appropriate proceedings and shall remove or vacate the same within sixty days
from the date of its creation, service or filing;
(d) the abandonment of the Leased Premises by Tenant, which shall mean that
Tenant has vacated the Leased Premises for ten (10) consecutive days, whether or
not Tenant is in Monetary Default; or that Tenant, in the judgment of Landlord,
is vacating the Leased Premises by removing furniture and fixtures;
(e) the discovery by Landlord that any financial statement given by Tenant or
any of its assignees, subtenants or successors-in-interests, or Guarantors, was
materially false; or
(f) if Tenant or any Guarantor shall die, cease to exist as a corporation or
partnership or be otherwise dissolved or liquidated or become insolvent, or
shall make a transfer in fraud of creditors.
21.2 Upon the occurrence of any Event Default by Tenant, Landlord may at any
time thereafter, without limiting Landlord in the exercise of any right or
remedy which Landlord may have under this Lease, at law or in equity by reason
of such Event of Default:
(a) Terminate this Lease and recover from Tenant as provided by California Civil
Code Section 1951.2: (i) the worth at the time of award of the unpaid Rent and
other amounts which had been earned at the time of termination; (ii) the worth
at the time of award of the amount by which the unpaid Rent which would have
been earned after termination until the time of award exceeds the amount of such
Rent loss that Tenant proves could have been reasonably avoided; (iii) the worth
at the time of award of the amount by which the unpaid Rent for the balance of
the Term after the time of award exceeds the amount of such Rent loss that
Tenant proves could be reasonably avoided; and (iv) any other amount necessary
to compensate Landlord for all the detriment proximately caused by Tenant's
failure to perform its obligations under this Lease or which, in the ordinary
course of things, would be likely to result therefrom. The "worth at the time of
award" of the amount referred to in (iii) shall be computed by discounting such
amount at the discount rate of the Federal Reserve Bank of San Francisco at the
time of award plus one percent (1%). For purposes of computing unpaid Rent which
would have accrued and become payable under this Lease pursuant to the
provisions of this subsection (a), unpaid Rent shall consist of the sum of the
unpaid Base Rent and the Additional Rent as reasonably estimated by Landlord for
the balance of the Term; or
(b) Continue this Lease in effect and enforce all of its rights and remedies
under this Lease, as provided by California Civil Code Section 1951.4, including
the right to recover Base Rent and Additional Rent as they become due, for so
long as Landlord does not terminate Tenant's right to possession; provided,
however, if Landlord elects to exercise its remedies described in this
subsection (b) and Landlord does not terminate this Lease, and if Tenant
requests Landlord's consent to an assignment of this Lease or a sublease of the
Leased Premises, Landlord shall not unreasonably withhold its consent to such
assignment or sublease. Acts of maintenance or preservation, efforts to relet
the Leased Premises, or the appointment of a receiver upon Landlord's initiative
to protect its interest under this Lease, shall not constitute a termination of
Tenant's right to possession; or
(c) With or without terminating this Lease, to reenter the Leased Premises and
remove all persons and property from the Leased Premises. Such property may be
removed and stored in a public warehouse or elsewhere at the cost of and for the
account of Tenant. No such reentry shall constitute an election to terminate
this Lease unless a written notice of such intention is given to Tenant or
unless the termination thereof is decreed by a court of competent jurisdiction.
In addition to its other rights under this Lease, Landlord shall have the right,
even though tenant is in default and has abandoned the Leased Premises, (i) to
maintain this Lease in effect and not terminate Tenant's right to possession,
and (ii) to enforce its rights and remedies under this Lease, including the
right to recover Base Rent and Additional Rent as they become due under this
Lease.
21.3 If Tenant fails to make any payment or cure any Event of Default hereunder
within the time permitted, Landlord, without being under any obligation to do so
and without thereby waiving such Event of Default, may make the payment and/or
remedy the Event of Default for the account of Tenant (and enter the Leased
Premises for such purpose), and Tenant shall pay Landlord, upon demand, all
reasonable costs, expenses and disbursements plus fifteen percent (15%) overhead
cost, incurred by Landlord in connection with such payment or cure.
21.4 Nothing contained in this Section 21 shall limit or prejudice the right of
Landlord to prove and obtain as liquidated damages in any bankruptcy,
insolvency, receivership, reorganization or dissolution proceeding, an amount
equal to the maximum allowed by applicable Law, whether or not such amount is
greater, equal to or less than the amounts recoverable, either as damages or
Rent, referred to in any of the preceding provisions of this Section 21.
Notwithstanding anything contained in this Section 21 to the contrary, any such
proceeding or action involving bankruptcy, insolvency, reorganization,
arrangement, assignment for the benefit of creditors, or appointment of a
receiver or trustee, shall be considered to be an Event of Default only when
such proceeding, action or remedy shall be taken or brought by or against the
then holder of the leasehold estate under this Lease or the guarantor under a
Guaranty of this Lease.
21.5 In connection with an Event of Default, Tenant shall also be liable and
shall pay to Landlord, in addition to any sums provided to be paid above,
broker's fees incurred by Landlord in connection with reletting the whole or any
part of the Leased Premises, the costs of removing and storing Tenant's or other
occupants' property, the costs of repairing, altering, remodeling, or otherwise
putting the Leased Premises into condition acceptable to a new tenant or
tenants, and all reasonable expenses incurred by Landlord in enforcing or
defending Landlord's rights and/or remedies, including reasonable attorneys'
fees whether suit was actually filed or not.
21.6 Landlord is entitled to accept, receive, in check or money order, and
deposit any payment made by Tenant for any reason or purpose or in any amount
whatsoever, and apply them at Landlord's option to any obligation of Tenant, and
such amounts shall not constitute payment of any amount owed except that to
which Landlord has applied them. No endorsement or statement on any check or
letter of Tenant shall be deemed an accord and satisfaction or recognized for
any purpose whatsoever. The acceptance of any such check or payment shall be
without prejudice to Landlord's rights to recover any and all amounts owed by
Tenant and shall not be deemed to cure any other default nor prejudice
Landlord's rights to pursue any other available remedy.
21.7 Landlord shall not be in default unless Landlord fails to perform
obligations required of Landlord within thirty (30) days after written notice
thereof from Tenant to Landlord, and after the notice and other requirements of
Section 35 have been met; provided that, if such default cannot reasonably be
cured within thirty (30) days then Landlord shall not be in default if it
commences to cure the default within the thirty (30) day period and continues
diligently to complete the cure within a reasonable time. Any such notice of
default shall specify the obligation Landlord has allegedly failed to perform,
and shall identify the Lease provision containing such obligation. If, by reason
of the occurrence of any of the events specified in Section 10 hereof, Landlord
is unable to fulfill or is delayed in fulfilling any of Landlord's obligations
under this Lease or any collateral instrument, no such inability or delay shall
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any
abatement or diminution of Base Rent or Additional Rent, or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Landlord
or its agents by reason of inconvenience or annoyance to Tenant or by reason of
injury to or interruption of Tenant's business, loss of profits, or otherwise.
Tenant hereby waives and releases its right to terminate this Lease under
Section 1932(1) of the California Civil Code or under any similar law, statute
or ordinance now or later in effect.
Section 22. Lien for Rent
To secure the payment of all Rent and the faithful performance of all the other
covenants of this Lease to be performed by Tenant, Tenant hereby gives to
Landlord an express contract lien on and first security interest in and to all
property, equipment, machinery, trade fixtures, chattels and merchandise
("Lien") which may be placed in the Leased Premises and also upon all proceeds
of any insurance which may accrue to Tenant by reason of damage to or
destruction of any such property, and agrees that this
Lease shall constitute a security agreement with respect thereto. All exemption
laws are hereby waived by Tenant. This Lien is given in addition to any
statutory liens and shall be cumulative thereto. Tenant agrees to execute from
time to time at the request of Landlord WCC-l Financing Statements referencing
this security agreement in a form satisfactory to Landlord, and to file
originals of such statements with the clerk of the cities or towns where (a) the
Leased Premises are located, and (b) Tenant maintains its principal business
office or residence, or wherever else such statements would ordinarily be filed
to
protect creditor's rights under California law. In addition to all other rights
of Landlord under this Lease, upon Tenant's default, Landlord shall have all of
the remedies of a secured party with respect to said
property, equipment, machinery, trade fixtures, chattels and merchandise.
Section 23. Right to Relocate
Notwithstanding anything in this Lease to the contrary, Landlord in all cases
shall retain the right and power to relocate Tenant, upon thirty (30) days'
written notice, within the Building to space which is comparable in size and
location and suited to Tenant's use, such right and power to be exercised
reasonably. Landlord shall not be liable or responsible for any claims, damages
or liabilities in connection with such relocation. Landlord's reasonable
exercise of such right and power shall include, but not be limited to, a
relocation to consolidate the Rentable Area occupied in order to provide
Landlord's services more efficiently or a relocation to provide contiguous
vacant space for a prospective tenant. If Landlord shall exercise said option,
the substituted premises shall thereafter be deemed the "Leased Premises" under
this Lease, and a new amended Exhibit A showing the new Leased Premises will be
substituted for the original Exhibit A.
Section 24. Attorneys' Fees
If either party commences litigation against the other in connection with this
Lease, the parties hereby waive any right to a trial by jury. In the event of
such litigation, the prevailing party shall be entitled to recover from the
other party such costs and reasonable attorneys' fees as may have been incurred.
The "prevailing party" shall be the party who receives substantially the result
sought, whether by settlement, dismissal or judgment and shall be conclusively
determined by the court. Further, if for any reason Landlord consults legal
counsel or otherwise incurs any costs or expenses as a result of its rightful
attempt to enforce the provisions of this Lease, even though no litigation is
commenced, or if commenced is not pursued to final judgment, Tenant shall pay to
Landlord, in addition to all other
amounts for which Tenant is obligated, all of Landlord's reasonable costs and
expenses incurred in connection with any such acts, including reasonable
attorneys fees.
Section 25. Non-Waiver
Neither acceptance of any payment by Landlord from Tenant nor failure by
Landlord to complain of any action, non-action, or default of Tenant shall
constitute a waiver of any of Landlord's rights. No action of Landlord shall be
deemed to be an acceptance of a surrender of this Lease by Tenant, including
without limitation, the acceptance of keys from Tenant, unless stated in a
written agreement or other written document signed by Landlord. Time is of the
essence with respect to the performance of every obligation of Tenant under this
Lease. Waiver by Landlord of any right in connection with any Event of Default
shall not constitute a waiver of such right or remedy or any other right or
remedy arising in connection with either a subsequent Event of Default with
respect to the same obligation or any other obligation. No right or remedy of
Landlord or covenant, duty, or obligation of Tenant shall be deemed waived by
Landlord unless such waiver is in writing, signed by Landlord or Landlord's duly
authorized agent.
Section 26. Rules and Regulations
Tenant shall comply with the rules and regulations set forth in Exhibit B.
Landlord shall have the right at all times to change such rules and regulations
or to amend them in any manner as may be deemed advisable by Landlord, all of
which changes and amendments shall be sent by Landlord to Tenant in writing.
Tenant shall thereafter comply with the changed or amended rules and
regulations. Landlord shall have no liability to Tenant for any failure of any
other tenants of the Building to comply with such rules and regulations.
Section 27. Assignment by Landlord
Landlord shall have the right to transfer, in whole or in part, all its rights
and obligations under this Lease and in the Leased Premises and the Building.
Section 28. Liability of Landlord
The obligations of Landlord under this Lease shall be binding upon Landlord and
its successors and assigns and any future owner of the Building only with
respect to events occurring during its and their respective ownership of the
Building. In addition, Tenant shall look solely to Landlord's interest in the
Building for recovery of any judgment against Landlord arising in connection
with this Lease, it being agreed that neither Landlord nor any successor or
assign of Landlord nor any future owner of the Building, nor any trustee,
director, of ricer, employee, beneficiary, partner, shareholder, or agent of any
of the foregoing shall ever be personally liable for any such judgment.
Section 29. Subordination and Attornment
At Landlord's option, this Lease shall be subordinate to any mortgage, deed of
trust (now or subsequently placed upon the Building or the Real Property),
ground lease, declaration of covenants (subsequently placed upon the Building or
the Real Property) regarding maintenance and use of any
areas contained in any portion of the Building or the Real Property, and to any
and all advances made under any mortgage or deed of trust and to all renewals,
modifications, consolidations, replacements and extensions of the same. With
respect to any of the above documents, Tenant agrees that no documentation other
than this Lease shall be required to evidence the subordination. Any holder of a
mortgage or deed of trust may elect, by written notice to Tenant, to make this
Lease superior to the lien of its mortgage or deed of trust, in which case this
Lease shall automatically be deemed prior to such mortgage or deed of trust,
whether this Lease is dated earlier or later than the date of the mortgage or
deed of trust or the date the same was recorded. Tenant shall execute such
documents as may be required to evidence the subordination or to make this Lease
prior to the lien of any mortgage or deed of trust, as the case may be. By
failing to do so within five days after written demand, Tenant does hereby make,
constitute and irrevocably appoint Landlord as Tenant's attorney-in-fact to do
so. This power of attorney is coupled with an interest. Tenant hereby attorns to
all successor owners of the Building, whether or not such ownership is acquired
as a result of a sale through foreclosure of a deed of trust or mortgage, or
otherwise. Additionally, at such time or times as Landlord may request, upon not
less than five days' prior written request by Landlord, Tenant shall sign and
deliver to Landlord a certificate stating whether this Lease is in full force
and effect; whether any amendments or modifications exist; whether there are any
Events of Default or circumstances that, with notice or the passage of time may
become an Event of Default; and such other information and agreements as may be
reasonably requested. Any such statement delivered pursuant to this Section 29
may be relied upon by Landlord and by any prospective purchaser of all or any
portion of Landlord's interest, or a holder or prospective holder of any
mortgage or deed of trust encumbering the Building. Tenant's failure to deliver
such statement within such time shall constitute an Event of Default and shall
conclusively be deemed to be an admission by Tenant of the matters set forth in
the request for an estoppel certificate.
Section 30. Holding Over
In the event Tenant, or any party claiming under Tenant, retains possession of
the Leased Premises after the Termination Date, the possession shall be an
unlawful detainer. No tenancy or interest shall result from such possession, and
such parties shall be subject to immediate eviction and removal. Tenant or any
such party shall pay Landlord, as Rent for the period of such holdover, an
amount equal to two hundred percent (200%) of the Rent otherwise provided for in
this Lease during the time of holdover. Tenant also shall be liable for any and
all damages sustained by Landlord as a result of such holdover. Tenant shall
vacate the Leased Premises and deliver the Leased Premises to Landlord
immediately upon Tenant's receipt of notice from Landlord to so vacate. The Rent
during such holdover period shall be payable to Landlord on demand. No holding
over by Tenant, whether with or without Landlord's consent, shall operate to
extend this Lease.
Section 31. Signs
No sign, symbol or identifying marks shall be put upon the Building or the Real
Property, or in the halls, elevators, staircases, entrances, parking areas or
upon the doors or walls, without Landlord's prior written approval, which may be
given or withheld in Landlord's sole discretion Should such approval be granted,
the signs or lettering shall conform in all respects to the sign and/or
lettering criteria established by Landlord. Landlord, at Landlord's sole cost
and expense, reserves the right to change the door plaques as Landlord deems
reasonably desirable.
Section 32. Hazardous Substances
With respect to Tenant's use of the Building, Tenant at all times, at its own
cost and expense, shall comply with all Laws relating to the use, analysis,
production, storage, sale, disposal or transportation of any hazardous materials
("Hazardous Substance Laws',), including, without limitation, oil or petroleum
products or their derivatives, solvents, PCB's, explosive substances, asbestos,
radioactive materials or waste, and any other toxic, ignitable, reactive,
corrosive, infectious, contaminating or pollution materials ("Hazardous
Substances',) which now or in the future are subject to any governmental
regulation.
Tenant shall not use, generate, store or dispose of any Hazardous Substances in
or on the Leased Premises or the Building (except to the extent and in the
quantities any such Hazardous Substances are commonly used for general office
purposes and then only in strict accordance with all Hazardous Substance Laws).
Except in emergencies or as otherwise required by Law, Tenant shall not take any
remedial action in response to the presence or release of any Hazardous
Substances on or about the Building without first giving written notice of the
same to Landlord. Tenant shall not enter into any settlement agreement, consent
decree or other compromise with respect to any claims relating to any Hazardous
Substances in any way connected with the Building without first notifying
Landlord of Tenant's intention to do so and affording Landlord the opportunity
to participate in any such proceedings.
Landlord shall have the right at all reasonable times to (a) inspect the Leased
Premises, (b) conduct tests and investigations to determine whether Tenant is in
compliance with the above provisions, and (c) request lists of all Hazardous
Substances used, stored or located on the Leased Premises by Tenant. All costs
and expenses incurred by Landlord in connection with any environmental
investigation shall be paid by Landlord (and may be included in Operating
Expenses), except that if any such environmental investigation shows that Tenant
has failed to comply with the provisions of this Section, or that the Building
or the Real Property (including surrounding soil and any underlying or adjacent
groundwater) have become contaminated due to the operations or activities in any
way attributable to Tenant, then all of the costs and expenses of such
investigation shall be paid by Tenant. Tenant's indemnity under Section 20 shall
specifically extend to all liability, including all foreseeable and
unforeseeable consequential damages, directly or indirectly arising out of the
use, generation, disposal or storage of Hazardous Substances by Tenant,
including without limitation the costs of any required repair, cleanup or
detoxification and the preparation of any closure or other required plans,
whether such action is required or necessary prior to or following the
termination of this Lease, to the full extent that such action is proximately
caused by the use, generation, storage, or disposal of Hazardous Substances by
Tenant. Neither the written consent by Landlord to the use, generation, disposal
or storage of Hazardous Substances by Tenant nor the strict compliance by Tenant
with all Hazardous Substances Laws shall excuse Tenant from its indemnity
obligation.
In the event Tenant's occupancy or conduct of business in or on the Leased
Premises, whether or not Landlord has consented to the same, results in any
increase in premiums for the insurance carried from time to time by Landlord
with respect to the Building, Tenant shall pay any such increase in premiums
upon billing by Landlord. In determining whether increased premiums are a result
of Tenant's use or occupancy of the Leased Premises, a schedule issued by the
organization computing the insurance rate on the Building showing the various
components of such rate shall be conclusive evidence of the
several items and charges which make up such rate. Tenant shall promptly comply
with all reasonable requirements of the insurance authority or of any insurer
now or later in effect relating to the Leased Premises.
Landlord hereby discloses to Tenant that a Phase I Environmental Site Assessment
and Limited Asbestos Survey and Hazard Assessment were performed on the Property
by Hygienetics, Inc. of Emeryville, California in 1990. Hygienetics, Inc.
supplemented the Limited Asbestos Survey in June, 1991 and March, 1995. Such
surveys and assessment revealed 13 samples of vinyl tile floor mastic, and two
samples of vinyl floor tiles, in the Building, which contained asbestos and
revealed the presence of limited quantities of hazardous and toxic substances
such as cleaning materials, lead and acid batteries in the basement and diesel
fuel storage tanks. Complete copies of the Site Assessment and Asbestos Surveys
are available for inspection in the Building management office. Except as
disclosed in the Site Assessment and Asbestos Surveys, Landlord has no actual
knowledge of Hazardous Substances in the Building that must be removed in order
for the Building to comply with Hazardous Substances Laws in effect as of the
date of this Lease. Tenant has had the opportunity, prior to execution and
delivery of this Lease, to make such further investigation and inquiry about
such matters as Tenant deems appropriate and Tenant accepts the Premises with
knowledge of the risks that may be associated with the presence of all materials
or conditions disclosed in such surveys and assessment.
Section 33. Compliance with Laws and Other Regulations
At its sole cost and expense, Tenant shall promptly comply with (a) all laws,
statutes, ordinances, decrees, orders, and governmental rules, regulations or
requirements now in force or which may later become in force, of federal, state,
county, and municipal authorities, including but not limited to ADA
Requirements, (b) with the requirements of any board of fire underwriters or
other similar body now or hereafter constituted, (c) with any occupancy
certificate issued pursuant to any law by any public officer or officers and (d)
with any covenants, conditions and restrictions encumbering the Building or the
Real Property, which impose any duty upon Landlord or Tenant, insofar as any
thereof relate to or affect the condition, use, alteration or occupancy of the
Leased Premises (collectively, "Laws").
Section 34. Governing Law; Severability
This Lease shall be construed in accordance with the laws of the State of
California. If any provision of this Lease or the application of it to any
person or circumstance shall be invalid or unenforceable to any extent, it shall
be adjusted, if possible, rather than voided, in order to achieve the intent of
the parties. In any event, the remainder of this Lease and the application of
such provision to the other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by Law. This
Lease shall be construed as though the covenants between Landlord and Tenant are
independent. Tenant hereby expressly waives the benefit of any statute to the
contrary and agrees that if Landlord fails to perform its obligations, Tenant
shall not be entitled to make any repairs or perform any acts at Landlord's
expense or to any set-off of Rent or other amounts owing to Landlord.
Section 35. Notices
All notices, demands, statements or communications (collectively, "Notices")
given or required to be given by either party to the other shall be in writing,
shall be sent by nationally recognized
overnight courier service, or United States certified or registered mail,
postage prepaid, return receipt requested, or delivered personally addressed as
follows:
TO THE LANDLORD: Xxxx Xxxxxxx Mutual Life Insurance Company
c/o LaSalle Partners Limited
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Att'n: Xxxxxxxx Xxxxx, General Manager
with a copy to: Xxxx Xxxxxxx Mutual Life Insurance Company
Att'n Investment Officer Real Estate Investment Group
000 Xxxxxxxxx Xx. Xxxxx X-00
Xxxxxx, XX 00000
TO THE TENANT: Metro Commerce Bank
0000 0xx Xxxxxx
Xxx Xxxxxx,XX 00000
Att'n: Xxxxxxx Xxxx
Any Notice will be deemed given upon the date actually received. If Tenant is
notified of the identity and address of the holder of any mortgage or deed of
trust given by Landlord, or any ground or underlying lessor, Tenant shall give
to such holder or ground or underlying lessor written notice of any default by
Landlord under the terms of this Lease by registered or certified mail, and such
holder or ground or underlying lessor shall be given a reasonable opportunity to
cure such default prior to Tenant's exercising any termination remedy available
to Tenant. Such addresses may be changed from time-totime by either party
serving notice as provided above.
Section 36. Obligations of Successors, Plurality, Gender
Except as otherwise expressly provided, this Lease shall bind and inure to the
benefit of the parties hereto, their respective heirs, legal representatives,
successors and assigns. If the rights of Tenant are owned by two or more parties
or two or more parties are designated as Tenant, then all such parties shall be
jointly and severally liable for the obligations of Tenant. Whenever the
singular or plural number, masculine or feminine or neuter gender is used, it
shall equally include the other.
Section 37. Entire Agreement
This Lease and any attached addenda or exhibits constitute the entire agreement
between Landlord and Tenant. No prior or contemporaneous written or oral
representations shall be binding. This Lease shall not be amended, changed or
extended except by written instrument signed by Landlord and Tenant.
Section 38. Section Captions
Section captions are for Landlord's and Tenant's convenience only, and neither
limit nor amplify the provisions of this Lease.
Section 39. Changes
Tenant shall consent to a modification of this Lease requested by any mortgagee
or beneficiary under a deed of trust as long as the modification does not
increase Tenant's costs or substantially change Tenant's rights and obligations.
Section 40. Authority
All rights and remedies of Landlord under this Lease, or those which may be
provided by Law, may be exercised by Landlord in its own name individually, or
in its name by its agent, and all legal proceedings for the enforcement of any
such rights or remedies, including actions for Rent, unlawful detainer, and any
other legal or equitable proceedings, may be commenced and prosecuted to final
judgment and be executed by Landlord in its own name individually or in its name
by its agent. Landlord and Tenant each represent to the other that each has full
power and authority to execute this Lease and to make and perform the agreements
contained in it. Tenant expressly stipulates that any rights or remedies
available to Landlord, either by the provisions of this Lease or otherwise, may
be enforced by Landlord in its own name individually or in its name by its agent
or principal.
Section 41. Brokerage
Landlord and Tenant hereby warrant to each other that they have had no dealings
with any real estate broker or agent in connection with the negotiation of this
Lease, excepting only the real estate brokers or agents specified in the Basic
Lease Information, and that they know of no other real estate broker or agent
who is entitled to a commission in connection with this Lease. Each party shall
defend, indemnify and hold the other party harmless from and against all claims,
actions, loss, cost, damage, expense and liability (including without limitation
reasonable attorneys' fees and court costs) with respect to any leasing
commission or equivalent compensation alleged to be owing on account of the
indemnifying party's dealings with any real estate broker or agent other than
that specified herein. Additionally, Tenant acknowledges and agrees that
Landlord shall have no obligation for payment of any brokerage fee or similar
compensation to any person with whom Tenant has dealt or may in the future deal
with respect to leasing of any additional or expansion space in the Building or
renewals or extensions of this Lease.
Section 42. Additions to Lease
Exhibits "A" and "B" are attached hereto and incorporated in this Lease for all
purposes and are hereby acknowledged by both parties to this Lease.
IN WITNESS WHEREOF, Landlord and Tenant, acting herein through duly authorized
individuals, have caused this Lease to be executed in multiple counterparts,
each of which shall have the force and effect of an original as of the date
first above written
TENANT: Metro Commerce Bank
By: /s/Xxxxxxx Xxxx
Title President:
TAX ID OR TAX EXEMPT NO. 00-0000000
LANDLORD: XXXX XXXXXXX MUTUAL LIFE INSURANCE COMPANY,
a Massachusetts corporation
By: /s/Xxxxxx X. Xxxxxxx
Its: Investment Officer
