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EXHIBIT 10.11
SIGNATURE CENTER
OFFICE LEASE
BETWEEN
PRINCIPAL LIFE INSURANCE COMPANY,
an Iowa corporation
("LANDLORD")
AND
BRIGHTSTAR INFORMATION TECHNOLOGY GROUP,
A DELAWARE CORPORATION
("TENANT")
November 11, 1998
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TABLE OF CONTENTS
ARTICLE PAGE
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1 TERM...................................................................................................1
2 POSSESSION.............................................................................................2
3 BASIC RENT.............................................................................................2
4 RENTAL ADJUSTMENT......................................................................................3
5 SECURITY DEPOSIT.......................................................................................5
6 USE....................................................................................................5
7 NOTICES................................................................................................6
8 BROKERS................................................................................................7
9 HOLDING OVER...........................................................................................7
10 TAXES ON TENANT'S PROPERTY............................................................................7
11 CONDITION OF PREMISES.................................................................................8
12 ALTERATIONS...........................................................................................8
13 REPAIRS...............................................................................................9
14 LIENS................................................................................................10
15 ENTRY BY LANDLORD....................................................................................10
16 UTILITIES AND SERVICES...............................................................................11
17 BANKRUPTCY...........................................................................................11
18 INDEMNIFICATION......................................................................................12
19 DAMAGE TO TENANT'S PROPERTY..........................................................................12
20 TENANT'S INSURANCE...................................................................................13
21 DAMAGE OR DESTRUCTION................................................................................14
22 EMINENT DOMAIN.......................................................................................15
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TABLE OF CONTENTS
ARTICLE PAGE
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23 DEFAULTS AND REMEDIES................................................................................16
24 ASSIGNMENT AND SUBLETTING............................................................................18
25 SUBORDINATION........................................................................................20
26 ESTOPPEL CERTIFICATE.................................................................................20
27 SIGNAGE..............................................................................................21
28 RULES AND REGULATIONS................................................................................22
29 CONFLICT OF LAWS.....................................................................................22
30 SUCCESSORS AND ASSIGNS...............................................................................22
31 SURRENDER OF PREMISES................................................................................22
32 ATTORNEYS' FEES......................................................................................22
33 PERFORMANCE BY TENANT................................................................................23
34 MORTGAGEE PROTECTION.................................................................................23
35 DEFINITION OF LANDLORD...............................................................................23
36 WAIVER...............................................................................................24
37 IDENTIFICATION OF TENANT.............................................................................24
38 PARKING..............................................................................................24
39 TERMS AND HEADINGS...................................................................................25
40 EXAMINATION OF LEASE.................................................................................25
41 TIME.................................................................................................25
42 PRIOR AGREEMENT AMENDMENTS...........................................................................25
43 SEPARABILITY.........................................................................................25
44 RECORDING............................................................................................26
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TABLE OF CONTENTS
ARTICLE PAGE
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45 CONSENTS.............................................................................................26
46 LIMITATION ON LIABILITY..............................................................................26
47 RIDERS...............................................................................................27
48 EXHIBITS.............................................................................................27
49 MODIFICATION FOR LENDER..............................................................................27
50 PROJECT PLANNING.....................................................................................27
51 OPTION TO RENEW.......................................................................................28
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LIST OF EXHIBITS
EXHIBIT A The Premises
EXHIBIT A-1 The Building
EXHIBIT B Tenant Improvements
EXHIBIT C Standards for Utilities and Services
EXHIBIT D Rules and Regulations
EXHIBIT E Parking Rules and Regulations
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SIGNATURE CENTER
THIS LEASE is made as of the 11TH DAY OF NOVEMBER, 1998, by
and between PRINCIPAL LIFE INSURANCE COMPANY, an Iowa corporation ("Landlord"),
and BRIGHTSTAR INFORMATION TECHNOLOGY GROUP, A DELAWARE CORPORATION ("Tenant").
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord SUITE NUMBER 200 (the "Premises") outlined on the floor plan attached
hereto and marked EXHIBIT A, the Premises being agreed, for the purposes of this
Lease, to have an area of approximately 5,611 RENTABLE SQUARE FEET and being
situated on the SECOND floor that certain office building located at 0000
XXXXXXX XXXX, XXXXXXXXXX, XXXXXXXXXX (the "Building"), and part of a two
building complex (the "Project") more particularly described in EXHIBIT A-1
attached hereto. The building contains approximately NINETY SIX THOUSAND, TWO
HUNDRED SIXTY FOUR (96,264) rentable square feet of space. Tenant acknowledges
that Landlord may elect to sell one or more of the buildings within the Project
and that upon any such sale Tenant's pro-rata share of those Direct Expenses
allocated to the outside areas of the Project may be adjusted accordingly.
The parties hereto agree that said letting and hiring is upon
and subject to the terms, covenants and conditions herein set forth. Tenant
covenants, as a material part of the consideration for this Lease to keep and
perform each and all of said terms, covenants and conditions for which Tenant is
liable and that this Lease is made upon the condition of such performance.
Prior to the commencing of the term of this Lease the Premises
shall be improved by the Tenant Improvements described in the Work Letter marked
EXHIBIT B attached hereto.
ARTICLE 1
TERM
The term of this Lease shall be for FIVE YEARS, unless sooner
terminated as hereinafter provided, commencing upon the earlier of:
(i) Substantial completion of the Tenant Improvements
described in the Work Letter (subject to the provisions of Paragraph 7 of the
Work Letter) and the tender of possession of the Premises to Tenant or
(ii) The date that Tenant opened for business in the Premises,
and ending on the last day of the last month in the term of this Lease, unless
such term shall be sooner terminated as hereinafter provided. As soon as the
commencement date is determined, the parties shall enter into an amendment of
this Lease setting forth the precise commencement and termination dates of this
Lease. Failure to enter into such an amendment, however, shall not affect
Tenant's liability hereunder. Reference in this Lease to a "Lease Year" shall
mean each successive twelve month period commencing with the commencement date.
Landlord and Tenant estimate that the commencement date shall be APPROXIMATELY
JANUARY 1, 1999.
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ARTICLE 2
POSSESSION
Tenant agrees that, if Landlord is unable to deliver
possession of the Premises to Tenant on the scheduled commencement of the term
of this Lease, this Lease shall not be void or voidable, nor shall Landlord be
liable to Tenant for any loss or damage resulting therefrom, but in such event
the Term of this Lease shall not commence until Landlord tenders possession of
the Premises to Tenant with the Tenant Improvements substantially completed. If
Landlord completes construction of the Tenant Improvements prior to the date
scheduled in the Work Letter, Landlord shall deliver possession of the Premises
to Tenant upon such completion and the term of this Lease shall thereupon
commence.
ARTICLE 3
BASIC RENT
(a) Tenant agrees to pay Landlord Basic Rent for the Premises
(subject to adjustment as hereinafter provided) as follows:
Months of Term Basic Rent/Per Month
-------------- --------------------
01 - 12 $13,185.85
13 - 24 $13,466.40
25 - 36 $13,746.95
37 - 48 $14,027.50
49 - 60 $14,308.05
The Basic Rent shall be paid monthly, in advance on the first (1st) day of each
calendar month during the term, commencing on the first (1st) month of the Lease
term and continuing on the first day of each month thereafter, except that the
first (1st) month's rent shall be paid on execution hereof. If Tenant's
obligation to pay rent commences or ends on a day other than the first day of a
calendar month, then the rental for such period shall be prorated in the
proportion that the number of days this Lease is in effect during such period
bears to thirty. In addition to the Basic Rent, Tenant agrees to pay as
additional rental the amount of rental adjustments and other charges required by
this Lease. All rental shall be paid to Landlord, without prior demand and
without any deduction or offset, in lawful money of the United States of
America, at the address of Landlord designated on the signature page of this
Lease or to such other person or at such other place as Landlord may from time
to time designate in writing. Tenant agrees that if Tenant's right to possession
is terminated by Landlord because of Tenant's breach of the Lease, Landlord may,
at its option, (2) recover from Tenant, in addition to any damages due Landlord
under the terms and conditions of this Lease, rent for the term of this Lease at
the rental rate provided above.
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(b) Late Charges. In the event Tenant fails to pay any
installment of rent WITHIN 10 DAYS OF when due or in the event Tenant fails to
make any other payment for which Tenant is obligated under this Lease when due,
then Tenant shall pay to Landlord a late charge equal to 5% of the amount due to
compensate Landlord for the extra costs incurred as a result of such late
payment.
ARTICLE 4
RENTAL ADJUSTMENT
(a) For the purpose of this Article 4, the following terms are
defined as follows:
(i) Tenant's Percentage. That portion of the Building
occupied by Tenant divided by the total rentable square footage of the Building,
which result is the following: 5.83%.
(ii) Direct Expenses Base. TENANT'S DIRECT EXPENSES
BASE SHALL BE The amount of the annual Direct Expenses which Landlord has
included in Annual Basic Rent, which amount is TENANT'S PERCENTAGE of the ACTUAL
Direct Expenses for 1999. IF THE PROJECT IS LESS THAN NINETY FIVE PERCENT (95%)
OCCUPIED DURING ANY CALENDAR YEAR OF THE TERM, AN ADJUSTMENT SHALL BE MADE IN
COMPUTING THE DIRECT EXPENSES FOR SUCH YEAR SO THAT DIRECT EXPENSES SHALL BE
COMPUTED AS THOUGH THE PROJECT WERE NINETY FIVE PERCENT (95%) OCCUPIED.
(iii) Direct Expenses. The term "Direct Expenses" shall
include:
(A) All real and personal property taxes and
assessments imposed by any governmental authority or agency on the Building and
the land on which the Building is located (including a pro-rata portion of any
taxes levied on any common areas); any assessments levied in lieu of taxes; any
non-progressive tax on or measured by gross rentals received from the rental of
space in the Building; and any other costs levied or assessed by, or at the
direction of, any federal, state, or local government authority in connection
with the use or occupancy of the Premises or the parking facilities serving the
Premises; any tax on this transaction or any document to which Tenant is a party
creating or transferring an interest in the Premises, and any expenses,
including cost of attorneys or experts, reasonably incurred by Landlord in
seeking reduction by the taxing authority of the above-referenced taxes, less
tax refunds obtained as a result of an application for review thereof; but shall
not include any net income, franchise, capital stock, estate or inheritance
taxes.
(B) Operating costs consisting of costs incurred
by Landlord in maintaining and operating the Building, exclusive of costs
required to be capitalized for federal income tax purposes, and including
(without limiting the generality of the foregoing) the following: costs of
utilities, supplies and insurance, cost of services of independent contractors,
managers and other suppliers, the fair rental value of the management office,
cost of compensation (including employment taxes and fringe benefits) of all
persons who perform regular and recurring duties connected with the management,
operation, maintenance, and repair of the Building, its equipment, parking
facilities and the common areas, including, without limitation, engineers,
janitors, foremen, floor waxers, window washers, watchmen and
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gardeners, but excluding persons performing services not uniformly available to
or performed for substantially all Building tenants; cost of maintaining,
repairing and replacing landscaping, sprinkler systems, concrete walkways, paved
parking areas, signs, and site lighting.
(C) Amortization of such capital improvements as
Landlord may have installed: (a) for the purpose of reducing operating costs,
(b) to comply with governmental rules and regulations promulgated after
completion of the Building, (c) for the purpose of replacing existing capital
items and improvements, and (d) any costs required by the CC&R's, as defined in
Article 6, affecting the Premises or by any corporation, committee or
association formed in connection therewith, provided that such cost together
with interest at the maximum rate allowed by law shall be amortized over such
reasonable period as Landlord shall determine, and only the monthly amortized
cost shall be included in Direct Expenses.
(D) DIRECT EXPENSE EXCLUSIONS: TENANT SHALL NOT
BE LIABLE FOR (I) ANY LATENT DEFECTS, OR (II) INTEREST OR PENALTIES DUE TO THE
FAULT OF LANDLORD.
(E) TENANT MAY AUDIT LANDLORD'S BOOKS AND
RECEIPTS AND IF DIRECT EXPENSES HAVE BEEN OVERCHARGED TENANT SHALL RECEIVE A
CREDIT FOR SUCH OVERCHARGE AND FOR THE COST OF THE AUDIT IF SUCH OVERCHARGE
EXCEEDS 5% OF THE ACTUAL AMOUNT OF TENANT'S PERCENTAGE OF DIRECT EXPENSES.
(b) Payment of Direct Expenses.
(i) If Tenant's Percentage of the Direct Expenses paid or
incurred by Landlord for any calendar year exceeds the Direct Expenses Base
included in Tenant's rent, then Tenant shall pay such excess as additional rent.
(ii) In addition, for each year after the first calendar
year, or portion thereof, Tenant shall pay Tenant's Percentage of Landlord's
estimate of the amount by which Direct Expenses for that year shall exceed the
Direct Expenses Base ("Landlord's Estimate"). This estimated amount shall be
divided into twelve equal monthly installments. Tenant shall pay to Landlord,
concurrently with the regular monthly rent payment next due following the
receipt of such statement, an amount equal to one monthly installment multiplied
by the number of months from January in the calendar year in which said
statement is submitted to the month of such payment, both months inclusive.
Subsequent installments shall be payable concurrently with the regular monthly
rent payments for the balance of that calendar year and shall continue until the
next calendar year's statement is rendered.
(iii) As soon as possible after the end of each calendar
year, Landlord shall provide Tenant with a statement showing the amount of
Tenant's Percentage of Direct Expenses, the amount of Landlord's Estimate
actually paid by Tenant and the amount of the Direct Expenses Base. Thereafter,
Landlord shall reconcile the above amounts and shall either xxxx Tenant for the
balance due
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(payable on Idemand by Landlord) or credit any overpayment by Tenant towards the
next monthly installment of Landlord's Estimate falling due, as the case may be.
For purposes of making these calculations, in no event shall Tenant's Percentage
of the Direct Expenses be deemed to be less than the Direct Expenses Base.
(c) Even though the term has expired and Tenant has vacated
the Premises, when the final determination is made of Tenant's Percentage of
Direct Expenses for the year in which this Lease terminates, Tenant shall
immediately pay any increase due over the estimated expenses paid and,
conversely, any overpayment made in the event said expenses decrease shall be
rebated by Landlord to Tenant.
ARTICLE 5
SECURITY DEPOSIT
Tenant shall deposit with Landlord the sum of FOURTEEN
THOUSAND, THREE HUNDRED, EIGHT AND 05/100THS DOLLARS ($14,308.05), equal to one
months rent. Said sum shall be held by Landlord as security for the faithful
performance by Tenant of all of Tenant's obligations hereunder. If Tenant
defaults with respect to any provision of this Lease, including but not limited
to the provisions relating to the payment of rent, Landlord may (but shall not
be required to) use, apply or retain all or any part of this security deposit
for the payment of any rent or any other sum in default, or for the payment of
any other amount which Landlord may spend or become obligated to spend by reason
of Tenant's default or to compensate Landlord for any other loss or damage which
Landlord may suffer by reason of Tenant's default. If any portion of the deposit
is so used or applied, Tenant shall, upon demand, deposit cash with Landlord in
an amount sufficient to restore the security deposit to its original amount.
Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep this security deposit separate from its general
funds, and Tenant shall not be entitled to interest on such deposit. If Tenant
shall fully and faithfully perform all of its obligations under this Lease, the
security deposit or any balance thereof shall be returned to Tenant (or, at
Landlord's option, to the last assignee of Tenant's interests hereunder) at the
expiration of the Lease term, provided that Landlord may retain the security
deposit until such time as any amount due from Tenant in accordance with Article
4 hereof has been determined and paid in full.
ARTICLE 6
USE
Tenant shall use the Premises for GENERAL OFFICE and shall
not use or permit the Premises to be used for any other purpose without the
prior written consent of Landlord. Nothing contained herein shall be deemed to
give Tenant any exclusive right to such use in the Building. Tenant shall not
use or occupy the Premises in violation of law or of the certificate of
occupancy issued for the Building or Project, and shall, upon written notice
from Landlord, discontinue any use of the Premises which is declared by any
governmental authority having jurisdiction to be a violation of law or of said
certificate of occupancy. Tenant shall comply with any direction of any
governmental authority having jurisdiction which shall, by reason of the nature
of Tenant's use or occupancy of the Premises, impose any duty upon Tenant or
Landlord with respect to the Premises or with respect to the use or occupation
thereof. Tenant's shall not
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do or permit to be done anything which will invalidate or increase the cost of
any fire, extended coverage or any other insurance policy covering the Building
and/or Project and/or property located therein and shall comply with all rules,
orders, regulations and requirements of the Insurance Service Offices, formerly
known as the Pacific Fire Rating Bureau or any other organization performing a
similar function. Tenant shall promptly, upon demand, reimburse Landlord for any
additional premium charged for such policy by reason of Tenant's failure to
comply with the provisions of this Article. Tenant shall not do or permit
anything to be done in or about the Premises which will in any way obstruct or
interfere with the rights of other tenants or occupants of the Building, or
injure or annoy them, or use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall Tenant cause, maintain or
permit any nuisance in, on or about the Premises. Tenant shall not commit or
suffer to be committed any waste in or upon the Premises. Tenant acknowledges
that Landlord has recorded covenants, conditions and restrictions against the
Premises on June 30, 1983 as Instrument Number 83/115477 in the Official Records
of Alameda County (the "CC&Rs"), and further amended via Certification of
Amendment dated April 18, 1985 Instrument Number 85/07539 and Second
Certification of Amendment dated October 11, 1989 Instrument Number 89/277713.
Tenant's use of the Premises shall be subject to and Tenant shall comply with
the CC&R's, as the same may be amended from time to time. Tenant acknowledges
that there have been and may be from time to time recorded easements and/or
declarations granting or declaring easements for parking, utilities, fire or
emergency access, and other matters. Tenant's use of the Premises shall be
subject to and Tenant shall comply with any and all such easements and
declarations. Tenant's use of the Premises shall be subject to such guidelines
as may from time to time be prepared by Landlord or the Xxxxx Center- Pleasanton
Owner's Association in their sole discretion. Tenant acknowledges that
governmental entities with jurisdiction over the Premises may, from time to time
promulgate laws, rules, plans and regulations affecting the use of the Premises,
including, but not limited to, traffic management plans and energy conservation
plans. Tenant's use of the Premises shall be subject to and Tenant shall comply
with any and all such laws, rules, plans, and regulations. Tenant, at its sole
cost, shall comply with all laws relating to the storage, use and disposal of
hazardous, toxic or radioactive matter, including those materials identified in
Sections 66680 through 66685 of Title 33 of the California Administrative Code,
Division 4, Chapter 30 ("Title 22") as they may be amended from time to time
(collectively "Toxic Materials"). If Tenant does store, use or dispose of any
Toxic Materials, Tenant shall notify Landlord in writing at least ten (10) days
prior to their first appearance on the Premises.
Any notice required or permitted to be given hereunder must be
in writing and may be given by personal delivery or by mail, and if given by
mail shall be deemed sufficiently given if sent by registered or certified mail
addressed to Tenant at the Building, or to Landlord at its address set forth at
the end of this Lease. Either party may specify a different address for notice
purposes by written notice to the other except that the Landlord may in any
event use the Premises as Tenant's address for notice purposes.
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ARTICLE 8
BROKERS
Tenant warrants that it has had no dealings with any real
estate broker or agent in connection with the negotiation of this Lease, except
XXXX XXXXXXXXXXXX OF COLLIERS INTERNATIONAL, whose commission shall be payable
by Landlord, and that it knows of no other real estate broker or agent who is or
might be entitled to a commission in connection with the Lease. If Tenant has
dealt with any other person or real estate broker with respect to leasing or
renting space in the Building, Tenant shall be solely responsible for the
payment of any fee due said person or firm and Tenant shall hold Landlord free
and harmless against any liability in respect thereto, including attorneys' fees
and costs.
ARTICLE 9
HOLDING OVER
If Tenant holds over after the expiration or earlier
termination of the term hereof without the express written consent of Landlord,
Tenant shall become a Tenant at sufferance only, at a rental rate equal to one
hundred fifty percent (150%) of the rent in effect upon the date of such
expiration (subject to adjustment as provided in Paragraph 4 hereof and prorated
on a daily basis), and otherwise subject to the terms, covenants and conditions
herein specified, so far as applicable. Acceptance by Landlord of rent after
such expiration or earlier termination shall not result in a renewal of this
Lease. The foregoing provisions of this Article 9 are in addition to and do not
affect Landlord's right of re-entry or any rights of Landlord hereunder or as
otherwise provided by law. If Tenant fails to surrender the Premises upon the
expiration of this Lease despite demand to do so by Landlord, Tenant shall
indemnify and hold Landlord harmless from all loss or liability, including
without limitation, any claim made by any succeeding tenant founded on or
resulting from such failure to surrender and any attorneys' fees and costs.
ARTICLE 10
TAXES ON TENANT'S PROPERTY
(a) Tenant shall be liable for and shall pay, at least ten
days before delinquency, all taxes levied against any personal property or trade
fixtures placed by Tenant in or about the Premises. If any such taxes on
Tenant's personal property or trade fixtures are levied against Landlord or
Landlord's property of if the assessed value of the Premises is increased by the
inclusion therein of a value placed upon such personal property or trade
fixtures of Tenant and if Landlord, after written notice to Tenant, pays the
taxes based upon such increased assessment, which Landlord shall have the right
to do regardless of the validity thereof, but only under proper protest if
requested by Tenant, Tenant shall, upon demand, repay to Landlord the taxes so
levied against Landlord, or the portion of such taxes resulting from such
increase in the assessment.
(b) If the Tenant Improvements in the Premises, whether
installed, and/or paid for by Landlord or Tenant and whether or not affixed to
the real property so as to become a part thereof, are
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assessed for real property tax purposes at a valuation higher than the valuation
at which Tenant Improvements conforming to Landlord's "Building Standard," in
other space in the Building are assessed, then the real property taxes and
assessment levied against the Building by reason of such excess assessed
valuation shall be deemed to be taxes levied against personal property of Tenant
and shall be governed by the provisions of Paragraph 10(a), above. If the
records of the County Assessor are available and sufficiently detailed to serve
as a basis for determining whether said Tenant Improvements are assessed at a
higher valuation than Landlord's Building Standard, such records shall be
binding on both the Landlord and the Tenant. If the records of the County
Assessor are not available or sufficiently detailed to serve as a basis for
making said determination, the actual cost of construction shall be used.
ARTICLE 11
CONDITION OF PREMISES
Tenant acknowledges that neither Landlord nor any agent of
Landlord has made any representation or warranty with respect to the Premises or
the Building or with respect to the suitability of either for the conduct of
Tenant's business. The taking of possession of the Premises by Tenant shall
conclusively establish that the Premises and the Building were in satisfactory
condition at such time.
ARTICLE 12
ALTERATIONS
(a) Tenant shall make no alterations, additions or
improvements in or to the Premises without Landlord's prior written consent,
WHICH SHALL NOT BE UNREASONABLY WITHHELD PROVIDED HOWEVER THAT LANDLORD'S
CONSENT SHALL NOT BE REQUIRED FOR ANY ALTERATIONS, ADDITIONS OR IMPROVEMENTS IN
OR TO THE PREMISES THAT (I) DO NOT COST MORE THAN $2,500 PER WORK OF IMPROVEMENT
AND (II) DO NOT EFFECT ANY STRUCTURAL OR EXTERIOR PORTION OF THE BUILDING OR THE
BUILDING'S ELECTRICAL, PLUMBING OR HVAC SYSTEMS, EXCEPT THAT LANDLORD'S CONSENT
SHALL IN ANY EVENT BE REQUIRED FOR ANY DEMOLITION OF ANY ALTERATION, ADDITION OR
IMPROVEMENT IN OR TO THE PREMISES. ALL WORK SHALL BE PERFORMED BY CONTRACTORS OR
MECHANICS APPROVED BY LANDLORD AND SHALL BE DONE IN A GOOD AND XXXXXXX LIKE
MANNER. Tenant agrees that there shall be no construction or partitions or other
obstructions which might interfere with Landlord's free access to mechanical
installations or service facilities of the Building or interfere with the moving
of Landlord's equipment to or from the enclosures containing said installations
or facilities. All such work shall be done at such times and in such manner as
Landlord may from time to time designate. Tenant covenants and agrees that all
work done by Tenant shall be performed in full compliance with all laws, rules,
orders, ordinances, regulations and requirements of all governmental agencies,
offices, and boards having jurisdiction, and in full compliance with the rules,
regulations and requirements of the Insurance Service Offices formerly known as
the Pacific Fire Rating Bureau, and of any similar body. Before commencing any
work, Tenant shall give Landlord at least ten days written notice of the
proposed commencement of such work and shall, if required by Landlord, secure at
Tenant's own cost and expense, a completion and lien indemnity bond,
satisfactory to Landlord, for said work. Tenant further covenants and agrees
that any mechanic's lien filed against the Premises or against the Building for
work claimed to have been done for, or
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materials claimed to have been furnished to, Tenant will be discharged by
Tenant, by bond or otherwise, within ten days after the filing thereof, at the
cost and expense of Tenant. All alterations, additions or improvements upon the
Premises made by either party, including (without limiting the generality of the
foregoing) all wallcovering, built-in cabinet work, paneling and the like,
shall, unless Landlord elects otherwise, become the property of Landlord, and
shall remain upon, and be surrendered with the Premises, as a part thereof, at
the end of the term hereof, except that Landlord may, by written notice to
Tenant, GIVEN TO TENANT AT THE TIME THAT LANDLORD GRANTS ITS CONSENT TO ANY
ALTERATIONS, ADDITIONS OR IMPROVEMENTS, SPECIFY THAT TENANT SHALL BE REQUIRED TO
REMOVE SUCH ALTERATIONS, ADDITIONS OR IMPROVEMENTS AT THE EXPIRATION OR SOONER
TERMINATION OF THIS LEASE, AND IN SUCH EVENT Tenant shall repair all damage
resulting from such removal or, at Landlord's option, shall pay to Landlord all
costs arising from such removal.
(b) All articles of personal property and all business and
trade fixtures, machinery and equipment, furniture and movable partitions owned
by Tenant or installed by Tenant at its expense in the Premises shall be and
remain the property of Tenant and may be removed by Tenant at any time during
the lease term when Tenant is not in default hereunder. If Tenant shall fail to
remove all of its effects from the Premises upon termination of this Lease for
any cause whatsoever, Landlord may, at its option, remove the same in any manner
that Landlord shall choose, and store said effects without liability to Tenant
for loss thereof. In such event, Tenant agrees to pay Landlord upon demand any
and all expenses incurred in such removal, including court costs and attorneys'
fees and storage charges on such effects for any length of time that the same
shall be in Landlord's possession. Landlord may, at its option, without notice,
sell said effects, or any of the same, at private sale and without legal
process, for such price as Landlord may obtain and apply the proceeds of such
sale upon any amounts due under this Lease from Tenant to Landlord and upon the
expense incident to the removal and sale of said effects.
ARTICLE 13
REPAIRS
(a) By entry hereunder, Tenant accepts the Premises as being
in good and sanitary order, condition and repair. Tenant shall keep, maintain
and preserve the Premises in first class condition and repair, and shall, when
and if needed, at Tenant's sole cost and expense, make all repairs to the
Premises and every part thereof. Tenant shall, upon the expiration or sooner
termination of the term hereof, surrender the Premises to Landlord in the same
condition as when received, usual and ordinary wear and tear excepted. Landlord
shall have no obligation to alter, remodel, improve, repair, decorate or paint
the Premises or any part thereof. The parties hereto affirm that Landlord has
made no representations to Tenant respecting the condition of the Premises or
the Building except as specifically herein set forth.
(b) Anything contained in Paragraph 13(a) above to the
contrary notwithstanding, Landlord shall repair and maintain the structural
portions of the Building, including the foundations, building shell, and roof
structure, all at Landlord's expense. At Tenant's expense to be prorated through
operating costs, Landlord shall repair and maintain the basic plumbing,
elevators, life safety systems and other building
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systems, heating, ventilating, air conditioning and electrical systems installed
or furnished by Landlord, and perform roof repair and maintenance to the
Premises. Landlord shall not be liable for any failure to make any such repairs
or to perform any maintenance unless such failure shall persist for an
unreasonable time after written notice of the need of such repairs or
maintenance is given to Landlord by Tenant. Except as provided in Article 21
hereof, there shall be no abatement of rent and no liability of Landlord by
reason of any injury to or interference with Tenant's business arising from the
making of any repairs, alterations or improvements in or to any portion of the
Building or the Premises or in or to fixtures, appurtenances and equipment
therein.
Tenant waives the right to make repairs at Landlord's expense under any law,
statute or ordinance now or hereafter in effect.
ARTICLE 14
LIENS
Tenant shall not permit any mechanic's, materialmen's or other
liens to be filed against the Building or Project, nor against Tenant's
leasehold interest in the Premises. Landlord shall have the right at all
reasonable times to post and keep posted on the Premises any notices which it
deems necessary for protection from such liens. If any such liens are filed,
Landlord may, without waiving its rights and remedies based on such breach of
Tenant and without releasing Tenant from any of its obligations, cause such
liens to be released by any means it shall deem proper, including payments in
satisfaction of the claim giving rise to such lien. Tenant shall pay to Landlord
at once, upon notice by Landlord, any sum paid by Landlord to remove such liens,
together with interest at the maximum rate per annum permitted by law from the
date of such payment by Landlord.
ARTICLE 15
ENTRY BY LANDLORD
Landlord reserves and shall at any and all times have the
right to enter the Premises to inspect the same, to supply janitorial service
and any service to be provided by Landlord to Tenant hereunder, to show the
Premises to prospective purchasers or tenants, to post notices of
nonresponsibility, to alter, improve or repair the Premises or any other portion
of the Building or Project, all without being deemed guilty of any eviction of
Tenant and without abatement of rent. Landlord may, in order to carry out such
purposes, erect scaffolding and other necessary structures where reasonably
required by the character of the work to be performed, provided that the
business of Tenant shall be interfered with as little as is reasonably
practicable. Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss in, upon and about the
Premises. Landlord shall at all times have and retain a key with which to unlock
all doors in the Premises, excluding Tenant's vaults and safes. Landlord shall
have the right to use any and all means which Landlord may deem proper to open
said doors in an emergency in order to obtain entry to the Premises. Any entry
to the Premises obtained by Landlord by any of said means, or otherwise, shall
not be construed or deemed to be a forcible or unlawful entry into the Premises,
or any eviction of
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Tenant from the Premises or any portion thereof, and any damages caused on
account thereof shall be paid by Tenant. It is understood and agreed that no
provision of this Lease shall be construed as obligating Landlord to perform any
repairs, alterations or decorations except as otherwise expressly agreed herein
by Landlord.
ARTICLE 16
UTILITIES AND SERVICES
Provided that Tenant is not in default under this Lease,
Landlord agrees to furnish or cause to be furnished to the Premises the
utilities and services described in the Standards for Utilities and Services,
attached hereto as EXHIBIT C, subject to the conditions and in accordance with
the standards set forth therein. Landlord's failure to furnish any of the
foregoing items when such failure is caused by:
(i) Accident, breakage, or repairs,
(ii) Strikes, lockouts or other labor disturbance or labor
dispute of any character,
(iii) Governmental regulation, moratorium or other
governmental action,
(iv) Inability despite the exercise of reasonable diligence to
obtain electricity, water or fuel, or by
(v) Any other cause beyond Landlord's reasonable control,
shall not result in any liability to Landlord. In addition, Tenant shall not be
entitled to any abatement or reduction of rent by reason of such failure, no
eviction of Tenant shall result from such failure and Tenant shall not be
relieved from the performance of any covenant or agreement in this Lease because
of such failure. In the event of any failure, stoppage or interruption thereof,
Landlord shall diligently attempt to resume service promptly.
ARTICLE 17
BANKRUPTCY
If Tenant shall file a petition in bankruptcy under any
provision of the Bankruptcy Code as then in effect, or if Tenant shall be
adjudicated a bankrupt in involuntary bankruptcy proceedings and such
adjudication shall not have been vacated within thirty days from the date
thereof, or if a receiver or trustee shall be appointed of Tenant's property and
the order appointing such receiver or trustee shall not be set aside or vacated
within thirty days after the entry thereof, or if Tenant shall assign Tenant's
estate or effects for the benefit of creditors, or if this Lease shall, by
operation of law or otherwise, pass to any person or persons other than Tenant,
then in any such event Landlord may terminate this Lease, if Landlord so elects,
with or without notice of such election and with or without entry or action by
Landlord. In such case, notwithstanding any other provisions of this Lease,
Landlord, in addition to any and all rights and remedies allowed by law or
equity, shall, upon such termination, be entitled to recover damages in the
amount provided in Paragraph 23(b) hereof. Neither Tenant nor any person
claiming through or under Tenant or by
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virtue of any statute or order of any court shall be entitled to possession of
the Premises but shall surrender the Premises to landlord. Nothing contained
herein shall limit or prejudice the right of Landlord to recover damages by
reason of any such termination equal to the maximum allowed by any statute or
rule of law in effect at the time when, and governing the proceedings in which,
such damages are to be proved; whether or not such amount is greater, equal to,
or less than the amount of damages recoverable under the provisions of this
Article 17.
ARTICLE 18
INDEMNIFICATION
Tenant shall indemnify, defend and hold Landlord harmless from
all claims arising from Tenant's use of the Premises or the conduct of its
business or from any activity, work, or thing done, permitted or suffered by
Tenant in or about the Premises. Tenant shall further indemnify, defend and hold
Landlord harmless from all claims arising from any breach or default in the
performance of any obligation to be performed by Tenant under the terms of this
Lease, or arising from any act, neglect, fault or omission of Tenant or of its
agents or employees, and from and against all costs, attorneys' fees, expenses
and liabilities incurred in or about such claim or any action or proceeding
brought thereon. In case any action or proceeding shall be brought against
Landlord by reason of any such claim, Tenant upon notice from Landlord shall
defend the same at Tenant's expense by counsel approved in writing by Landlord.
Tenant, as a material part of the consideration to Landlord, hereby assumes all
risk of damage to property or injury to person in, upon or about the Premises
from any cause whatsoever except that which is caused by THE NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE LANDLORD, ITS AGENTS OR EMPLOYEES OR BY the failure of
Landlord to observe any of the terms and conditions of this Lease where such
failure has persisted for an unreasonable period of time after written notice of
such failure. Tenant hereby waives all its claims in respect thereof against
Landlord.
ARTICLE 19
DAMAGE TO TENANT'S PROPERTY
Notwithstanding the provisions of Article 18 to the contrary,
Landlord or its agents shall not be liable for (i) any damage to any property
entrusted to employees of the Building, (ii) loss or damage to any property by
theft or otherwise, (iii) any injury or damage to persons or property resulting
from fire, explosion, falling plaster, steam, gas, electricity, water or rain
which may leak from any part of the Building or from the pipes, appliances or
plumbing work therein or from the roof, street or sub-surface or from any other
place or resulting from dampness or (iv) any other cause whatsoever. Landlord or
its agents shall not be liable for interference with light or other incorporeal
hereditaments, nor shall Landlord be liable for any latent defect in the
Premises or in the Building. Tenant shall give prompt notice to Landlord in case
of fire or accidents in the Premises or in the Building or of defects therein or
in the fixtures or equipment.
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ARTICLE 20
TENANT'S INSURANCE
(a) Tenant shall, during the term hereof and any other period
of occupancy, at its sole cost and expense, keep in full force and effect the
following insurance:
(i) Standard form property insurance insuring against
the perils of fire, extended coverage, vandalism, malicious mischief, special
extended coverage ("All-Risk") and sprinkler leakage. This insurance policy
shall be upon all property owned by Tenant, for which Tenant is legally liable
or that was installed at Tenant's expense, and which is located in the Project
including, without limitation, furniture, fittings, installations, fixtures
(other than Tenant improvements installed by Landlord), and any other personal
property in an amount not less than ninety percent of the full replacement cost
thereof. In the event that there shall be a dispute as to the amount which
comprises full replacement cost, the decision of Landlord or any mortgagees of
Landlord shall be conclusive. This insurance policy shall also be upon direct or
indirect loss of Tenant's earnings attributable to Tenant's inability to use
fully or obtain access to the Premises or Building in an amount as will properly
reimburse Tenant. Such policy shall name Landlord and any mortgagees of Landlord
as insured parties, as their respective interests may appear.
(ii) Comprehensive General Liability Insurance insuring
Tenant against any liability arising out of the lease, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto. Such insurance
shall be in the amount of $2,000,000 Combined Single Limit for injury to, or
death of one or more persons in an occurrence, and for damage to tangible
property (including loss of use) in an occurrence, with such liability amount to
be adjusted from year to year to reflect increases in the Consumer Price Index.
The policy shall insure the hazards of premises and operation, independent
contractors, contractual liability (covering the Indemnity contained in
Paragraph 18 hereof) and shall (1) name Landlord as an additional insured, and
(2) contain a cross liability provision, and (3) contain a provision that "the
insurance provided the Landlord hereunder shall be primary and non-contributing
with any other insurance available to the Landlord."
(iii) Workers' Compensation and Employer's Liability
insurance (as required by state law).
(iv) Any other form or forms of insurance as Tenant or
Landlord or any mortgagees of Landlord may reasonably require from time to time
in form, in amounts and for insurance risks against which a prudent tenant would
protect itself.
(b) All policies shall be written in a form satisfactory to
Landlord and shall be taken out with insurance companies holding a General
Policyholders Rating of "A" and a Financial Rating of "X" or better, as set
forth in the most current issue of Bests Insurance Guide. Within ten days after
the execution of this Lease, Tenant shall deliver to Landlord copies of policies
or certificates evidencing the
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existence of the amounts and forms of coverage satisfactory to Landlord. No such
policy shall be cancelable or reducible in coverage except after thirty days
prior written notice to Landlord. Tenant shall, within ten days prior to the
expiration of such policies, furnish Landlord with renewals or "binders"
thereof, or Landlord may order such insurance and charge the cost thereof to
Tenant as additional rent. If Landlord obtains any insurance that is the
responsibility of Tenant under this section, Landlord shall deliver to Tenant a
written statement setting forth the cost of any such insurance and showing in
reasonable detail the manner in which it has been computed.
ARTICLE 21
DAMAGE OR DESTRUCTION
(a) In the event the Building and/or the Premises is damaged
by fire or other perils covered by Landlord's insurance, Landlord shall have the
following rights and obligations:
(i) In the event of total destruction, at Landlord's
option, as soon as reasonably possible thereafter, commence repair,
reconstruction and restoration of the Building and/or the Premises and prosecute
the same diligently to completion, in which event this Lease shall remain in
full force and effect; or within ninety days after such damage, elect not to so
repair, reconstruct or restore the Building and/or the Premises, in which event
this Lease shall terminate. In either event, Landlord shall give Tenant written
notice of its intention within said ninety day period. In the event Landlord
elects not to restore the Building and/or the Premises, this Lease shall be
deemed to have terminated as of the date of such total destruction.
(ii) In the event of a partial destruction of the
Building and/or the Premises, to an extent not exceeding twenty-five percent of
the full insurable value thereof, and if the damage thereto is such that the
Building and/or the Premises may be repaired, reconstructed or restored within a
period of ninety days from the date of the happening of such casualty and if
Landlord will receive insurance proceeds sufficient to cover the cost of such
repairs, then Landlord shall commence and proceed diligently with the work of
repair, reconstruction and restoration and this Lease shall continue in full
force and effect. If such work of repair, reconstruction and restoration shall
require a period longer than ninety days or exceeds twenty-five percent of the
full insurable value thereof, or if said insurance proceeds will not be
sufficient to cover the cost of such repairs, then Landlord either may elect to
so repair, reconstruct or restore and the Lease shall continue in full force and
effect or Landlord may elect not to repair, reconstruct or restore and the Lease
shall then terminate. Under any of the conditions of this Subparagraph
21(a)(ii), Landlord shall give written notice to Tenant of its intention within
said ninety day period. In the event Landlord elects not to restore the Building
and/or the Premises, this Lease shall be deemed to have terminated as of the
date of such partial destruction.
(b) Upon any termination of this Lease under any of the
provisions of this Article 21, the parties shall be released without further
obligation to the other from the date possession of the Premises is surrendered
to Landlord except for items which have therefore accrued and are then unpaid.
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(c) In the event of repair, reconstruction and restoration by
Landlord as herein provided, the rental payable under this Lease shall be abated
proportionately with the degree to which Tenant's use of the Premises is
impaired during the period of such repair, reconstruction or restoration. Tenant
shall not be entitled to any compensation or damages for loss in the use of the
whole or any part of the Premises and/or any inconvenience or annoyance
occasioned by such damage, repair, reconstruction or restoration.
(d) Tenant shall not be released from any of its obligations
under this Lease except to the extent and upon the conditions expressly stated
in this Article 21. Notwithstanding anything to the contrary contained in this
Article 21, if Landlord is delayed or prevented from repairing or restoring the
damaged Premises within one year after the occurrence of such damage or
destruction by reason of acts of God, war, governmental restrictions, inability
to procure the necessary labor or materials, or other cause beyond the control
of Landlord, Landlord shall be relieved of its obligation to make such repairs
or restoration and Tenant shall be released from its obligation under this Lease
as of the end of said one year period.
(e) If damage is due to any cause other than fire or other
peril covered by extended coverage insurance, Landlord may elect to terminate
this Lease.
(f) If Landlord is obligated to or elects to repair or restore
as herein provided, Landlord shall be obligated to make repair or restoration
only of those portions of the Building and the Premises which were originally
provided at Landlord's expense, and the repair and restoration of items not
provided at Landlord's expense shall be the obligation of Tenant.
(g) Notwithstanding anything to the contrary contained in this
Article 21, Landlord shall not have any obligation whatsoever to repair,
reconstruct or restore the Premises when the damage resulting from any casualty
covered under this Article 21 occurs during the last twelve months of the term
of this Lease or any extension hereof.
(h) The provisions of California Civil Code 1932, Subsection
2, and 1933, Subsection 4, which permit termination of a lease upon destruction
of the Leased Premises, are hereby waived by Tenant; and the provisions of this
Article shall govern in case of such destruction.
ARTICLE 22
EMINENT DOMAIN
In case all of the Premises, or such part thereof as shall
substantially interfere with Tenant's use and occupancy thereof, shall be taken
for any public or quasi-public purpose by any lawful power or authority by
exercise of the right of appropriation, condemnation or eminent domain, or sold
to prevent such taking, either party shall have the right to terminate this
Lease effective as of the date possession is required to be surrendered to said
authority. Tenant shall not assert any claim against Landlord or the taking
authority for any compensation because of such taking, and Landlord shall be
entitled to receive the
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entire amount of any award without deduction for any estate or interest of
Tenant. In the event the amount of property or the type of estate taken shall
not substantially interfere with the conduct of Tenant's business, Landlord
shall be entitled to the entire amount of the award without deduction for any
estate or interest of Tenant, Landlord shall restore the Premises to
substantially their same condition prior to such partial taking, and a
proportionate allowance shall be made to Tenant for the rent corresponding to
the time during which, and to the part of the Premises of which, Tenant shall be
so deprived on account of such taking and restoration. Nothing contained in this
Paragraph shall be deemed to give Landlord any interest in any award made to
Tenant for the taking of personal property and fixtures belonging to Tenant OR
MOVING COSTS INCURRED BY TENANT.
ARTICLE 23
DEFAULTS AND REMEDIES
(a) The occurrence of any one or more of the following events
shall constitute a default hereunder by Tenant:
(i) The vacation or abandonment of the Premises by
Tenant. Abandonment is herein defined to include, but is not limited to, any
absence by Tenant from the Premises for five business days or longer AND THE
NON-PAYMENT OF RENT, ADDITIONAL RENT OR ANY OTHER PAYMENT REQUIRED while in
default of any provision of this Lease.
(ii) The failure by Tenant to make any payment of
rent or additional rent or
any other payment required to be made by Tenant hereunder, as and when due,
where such failure shall continue for a period of three days after written
notice thereof from Landlord to Tenant; provided however, that any such notice
shall be in lieu of, and not in addition to, any notice required under
California Code of Civil Procedure Section 1161 regarding unlawful detainer
actions.
(iii) The failure by Tenant to observe or perform any
of the express or implied covenants or provisions of this Lease to be observed
or performed by Tenant, other than as specified in Subparagraph 23(a)(i) or (ii)
above, where such failure shall continue for a period of ten days after written
notice thereof from Landlord to Tenant. Any such notice shall be in lieu of, and
not in addition to, any notice required under California Code of Civil Procedure
Section 1161 regarding unlawful detainer actions. If the nature of Tenant's
default is such that more than ten days are reasonably required for its cure,
then Tenant shall not be deemed to be in default if Tenant shall commence such
cure within said ten-day period and thereafter diligently prosecute such cure to
completion, which completion shall occur not later than sixty days from the date
of such notice from Landlord.
(iv) (1) The making by Tenant of any general assignment
for the benefit of creditors; (2) the filing by or against Tenant of a petition
to have Tenant adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant, the same is dismissed within thirty days); (3)
the appointment of a trustee or receiver to take possession of substantially all
of Tenant's assets located at the Premises or of Tenant's
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interest in this Lease, where possession is not restored to Tenant within thirty
days; or (4) the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease where such seizure is not discharged within thirty days.
(b) In the event of any such default by Tenant, in addition to
any other remedies available to Landlord at law or in equity, Landlord shall
have the immediate option to terminate this Lease and all rights of Tenant
hereunder. In the event that Landlord shall elect to so terminate this Lease
then Landlord may recover from Tenant:
(i) the worth at the time of award of any unpaid rent
which had been earned at the time of such termination; plus
(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 rental loss that Tenant proves could
have been reasonably avoided; plus
(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 rental loss that Tenant proves could be reasonably
avoided; plus
(iv) any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform Tenant's
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom. As used in Subparagraph 23(b)(i) and (ii) above, the
"worth at the time of award" is computed by allowing interest at the maximum
rate permitted by law. As used in Subparagraph 23(b)(iii) above, the "worth at
the time of award" is 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.
(c) In the event of any such default by Tenant, Landlord shall
also have the right, with or without terminating this Lease, to re-enter the
Premises and remove all persons and property from the 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 re-entry or taking possession of the Premises by
Landlord pursuant to this Paragraph 23(c) shall be construed as 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.
(d) All rights, options and remedies of Landlord contained in
this Lease shall be constructed and held to be cumulative, and no one of them
shall be exclusive of the other, and Landlord shall have the right to pursue any
one or all of such remedies or any other remedy or relief which may be provided
by law, whether or not stated in this Lease. No waiver of any default of Tenant
hereunder shall be implied from any acceptance by Landlord of any rent or other
payments due hereunder or any omission by Landlord to take any action on account
of such default if such default persists or is repeated, and no express waiver
shall affect defaults other than as specified in said waiver. The consent or
approval of Landlord to or
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of any act by Tenant requiring Landlord's consent or approval shall not be
deemed to waive or render unnecessary Landlord's consent or approval to or of
any subsequent similar acts by Tenant.
(e) The chronic delinquency by Tenant in the payment of Basic
Rent or any other payments required to be paid by Tenant under this Lease shall
constitute a default hereunder by Tenant. "Chronic delinquency" shall mean
failure by Tenant to pay Basic Rent, or any other payments required to be paid
by Tenant under this Lease within three (3) days after written notice thereof
for any three (3) occasions (consecutive or non-consecutive) during any twelve
(12) month period. In the event of a chronic delinquency, Landlord shall have
the right, at Landlord's option, to require that Basic Rent be paid by Tenant
quarterly, in advance.
ARTICLE 24
ASSIGNMENT AND SUBLETTING
(a) Tenant shall not voluntarily assign or encumber its
interest in this Lease or in the Premises, or sublease all or any part of the
Premises, or allow any other person or entity to occupy or use all or any part
of the Premises, without first obtaining Landlord's prior written consent. Any
assignment, encumbrance or sublease without Landlord's prior written consent
shall be voidable, at Landlord's election, and shall constitute a default and at
the option of the Landlord shall result in a termination of this Lease. No
consent to assignment, encumbrance, or sublease shall constitute a further
waiver of the provisions of this paragraph. Tenant shall notify Landlord in
writing of Tenant's intent to sublease, encumber or assign this Lease and
Landlord shall, within FIFTEEN thirty days of receipt of such written notice,
elect one of the following:
(i) Consent to such proposed assignment, encumbrance or
sublease;
(ii) Refuse such consent, which refusal shall be on
reasonable grounds; or
(iii) Elect to terminate this Lease.
(b) As a condition for granting its consent to any assignment,
encumbrance or sublease, THIRTY days prior to any anticipated assignment
or sublease Tenant shall give Landlord written notice (the "Assignment Notice"),
which shall set forth the name, address and business of the proposed assignee or
sublessee, information (including references) concerning the character,
ownership, and financial condition of the proposed assignee or sublessee, and
the Assignment Date, any ownership or commercial relationship between Tenant and
the proposed assignee or sublessee, and the consideration of all other material
terms and conditions of the proposed assignment or sublease, all in such detail
as Landlord shall reasonably require. If Landlord requests additional detail,
the Assignment Notice shall not be deemed to have been received until Landlord
receives such additional detail, and Landlord may withhold consent to any
assignment or sublease until such additional detail is provided to it. Further,
Landlord may require that the sublessee or assignee remit directly to Landlord
on a monthly basis, all monies due to Tenant by said assignee or sublessee.
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(c) The consent by Landlord to any assignment or subletting
shall not be construed as relieving Tenant or any assignee of this Lease or
sublessee of the Premises from obtaining the express written consent of Landlord
to any further assignment or subletting or as releasing Tenant or any assignee
or sublessee of Tenant from any liability or obligation hereunder whether or not
then accrued. In the event Landlord shall consent to an assignment or sublease,
Tenant shall pay Landlord as Additional Rent a reasonable attorneys' and
administrative fee not to exceed $500 for costs incurred in connection with
evaluating the Assignment Notice. This section shall be fully applicable to all
further sales, hypothecations, transfers, assignments and subleases of any
portion of the Premises by any successor or assignee of Tenant, or any sublessee
of the Premises.
(d) As used in this section, the subletting of substantially
all of the Premises for substantially all of the remaining term of this Lease
shall be deemed an assignment rather than a sublease. Notwithstanding the
foregoing, Landlord shall consent to the assignment, sale or transfer if the
Assignment Notice states that Tenant desires to assign the Lease to any entity
into which Tenant is merged, with which Tenant is consolidated or which acquires
all or substantially all of the assets of Tenant, provided that the assignee
first executes, acknowledges and delivers to Landlord an agreement whereby the
assignee agrees to be bound by all of the covenants and agreements in this Lease
which Tenant has agreed to keep, observe or perform, that the assignee agrees
that the provisions of this section shall be binding upon it as if it were the
original Tenant hereunder and that the assignee shall have a net worth
(determined in accordance with generally accepted accounting principles
consistently applied) immediately after such assignment which is at least equal
to the net worth (as so determined) of Tenant at the commencement of this Lease.
(e) Except as provided above, Landlord's consent to any
sublease shall not be unreasonably withheld. A condition to such consent shall
be delivery by Tenant to Landlord of a true copy of any such sublease. If for
any proposed assignment or sublease Tenant receives rent or other consideration,
either initially or over the term of the assignment or sublease, in excess of
the rent called for hereunder, or, in case of the sublease of a portion of the
Premises, in excess of such rent fairly allocable to such portion, after
appropriate adjustments to assure that all other payments called for hereunder
are taken into account, Tenant shall pay to Landlord as additional rent
hereunder ONE-HALF (1/2) of the excess of each such payment of rent or other
consideration received by Tenant AFTER FIRST DEDUCTING ANY REASONABLE AND
CUSTOMARY BROKERAGE COMMISSION AND TENANT IMPROVEMENT EXPENSES PAID BY TENANT IN
CONNECTION WITH THE ASSIGNMENT OR SUBLEASE. SUCH EXCESS SHALL BE PAID TO
LANDLORD promptly after its receipt BY TENANT. Landlord's waiver or consent to
any assignment or subletting shall not relieve Tenant from any obligation under
this lease. The parties intend that the preceding sentence shall not apply to
any sublease rentals respecting a portion of the Premises that during the entire
term of this Lease was not occupied by Tenant for its own use, but was always
subleased by Tenant and/or kept vacant. For the purpose of this section, the
rent for each square foot of floor space in the Premises shall be deemed equal.
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ARTICLE 25
SUBORDINATION
Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any mortgagee with a lien on the Building or any ground
lessor with respect to the Building, this Lease shall be subject and subordinate
at all times to:
(i) All ground leases or underlying leases which may
now exist or hereafter be executed affecting the Building or the land upon which
the Building is situated or both,
(ii) The lien of any mortgage or deed of trust which
may now exist or hereafter be executed in any amount for which the Building,
land, ground leases or underlying leases, or Landlord's interest or estate in
any of said items is specified as security. Notwithstanding the foregoing,
Landlord shall have the right to subordinate or cause to be subordinated any
such ground leases or underlying leases or any such liens to the Lease. In the
event that any ground lease or underlying lease terminates for any reason or any
mortgage or deed of trust is foreclosed or a conveyance in lieu of foreclosure
is made for any reason, Tenant shall, notwithstanding any subordination, attorn
to and become the Tenant of the successor in interest to Landlord, at the option
of such successor in interest. Tenant covenants and agrees to execute and
deliver, upon demand by Landlord and in the form requested by Landlord, any
additional documents evidencing the priority or subordination of this Lease with
respect to any such ground leases or underlying leases or the lien of any such
mortgage or deed of trust. Tenant hereby irrevocably appoints Landlord as
attorney-in-fact of Tenant to execute, deliver and record any such document in
the name and on behalf of Tenant, and
(iii) The CC&R's as described in Article 6.
ARTICLE 26
ESTOPPEL CERTIFICATE
(a) Within ten days following any written request which
Landlord may make from time to time, Tenant shall execute and deliver to
Landlord a statement ON A FORM PROVIDED BY LANDLORD certifying:
(i) The date of commencement of this Lease;
(ii) The fact that this Lease is unmodified and in full
force and effect (or, if there have been modifications hereto, that this Lease
is in full force and effect, and stating the date and nature of such
modifications);
(iii) The date to which the rental and other sums
payable under this Lease have been paid;
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(iv) That there are no current defaults under this
Lease by either Landlord or Tenant except as specified in Tenant's statement;
and
(v) Such other matters requested by Landlord. Landlord
and Tenant intend that any statement delivered pursuant to this Article 26 may
be relied upon by any mortgagee, beneficiary, purchaser or prospective purchaser
of the Building or any interest therein.
(b) Tenant's failure to deliver such statement within such
time shall be conclusive upon Tenant:
(i) That this Lease is in full force and effect,
without modification except as may be represented by Landlord,
(ii) That there are no uncured defaults in Landlord's
performance, and
(iii) That not more than one month's rental has been
paid in advance.
ARTICLE 27
SIGNAGE
Landlord shall provide for Tenant the opportunity to have
Tenant's name placed upon the Building lobby directory sign, and at Tenant's
entrance to the Premises. Tenant shall have no other right to maintain a Tenant
identification sign in any other location in, on or about the Premises, the
Building, or Signature Center and shall not display or erect any Tenant
identification sign, display or other advertising material that is visible from
the exterior of the Building. The size, design, color and other physical aspects
of the Tenant identification sign shall be subject to Landlord's written
reasonable approval prior to installation. The cost of the installation of the
sign, and its maintenance and removal expense, shall be at Tenant's sole
expense. If Tenant fails to maintain its sign or if Tenant fails to remove its
sign upon termination of this Lease, Landlord may do so at Tenant's expense and
Tenant's reimbursement to Landlord for such amounts shall be deemed additional
rent. All signs shall comply with rules and regulations set for by Landlord as
may be modified from time to time.
TENANT SHALL HAVE THE RIGHT TO INSTALL THEIR COMPANY NAME ON THE EXISTING
MONUMENT SIGN ON HOPYARD ROAD, OR THE RIGHT TO INSTALL AN EXCLUSIVE MONUMENT
SIGN ADJACENT TO THE BUILDING'S WEST ENTRANCE, OPPOSITE THE EXISTING SIGN (X.X.
XXXXXXX). THE SIGN SIZE AND DESIGN SHALL BE IDENTICAL TO THE EXISTING SIGN.
TENANT SHALL BE RESPONSIBLE FOR THE ENTIRE COST OF INSTALLING, REPOSITIONING
EXISTING NAMES, MAINTAINING, RELOCATING, AND REMOVING THEIR NAME. IN ADDITION,
TENANT SHALL BE RESPONSIBLE FOR OBTAINING NECESSARY APPROVALS FROM THE CITY OF
PLEASANTON AS NEEDED. THE SIZE, LOCATION, MATERIALS, AND DESIGN OF SUCH SIGN
SHALL BE SUBJECT TO THE LANDLORD'S PRIOR WRITTEN CONSENT.
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ARTICLE 28
RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the "Rules and
Regulations," a copy of which is attached hereto and marked EXHIBIT D, and all
reasonable and nondiscriminatory modifications thereof and additions thereto
from time to time put into effect by Landlord. Landlord shall not be responsible
to Tenant for the violation or non-performance by any other tenant or occupant
of the Building of any of said Rules and Regulations.
ARTICLE 29
CONFLICT OF LAWS
This Lease shall be governed by and construed pursuant to the laws
of the State of California.
ARTICLE 30
SUCCESSORS AND ASSIGNS
Except as otherwise provided in this Lease, all of the
covenants, conditions and provisions of this Lease shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns.
ARTICLE 31
SURRENDER OF PREMISES
The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, shall not work a merger, and shall, at the option
of Landlord, operate as an assignment to it of any or all subleases and
subtenancies.
ARTICLE 32
ATTORNEYS' FEES
(a) If Landlord should bring suit for possession of the
Premises, for the recovery of any sum due under this Lease, or because of the
breach of any provisions of this Lease, or for any other relief against Tenant
hereunder, or in the event of any other litigation between the parties with
respect to this Lease, then all costs and expenses, including reasonable
attorneys' fees, incurred by the prevailing party therein shall be paid by the
other party, which obligation on the part of the other party shall be deemed to
have accrued on the date of the commencement of such action and shall be
enforceable whether or not the action is prosecuted to judgment.
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(b) If Landlord is named as a defendant in any suit brought
against Tenant in connection with or arising out of Tenant's occupancy
hereunder, Tenant shall pay to Landlord its costs and expenses incurred in such
suit, including reasonable attorneys' fees.
ARTICLE 33
PERFORMANCE BY TENANT
All covenants and agreements to be performed by Tenant under
any of the terms of this Lease shall be performed by Tenant at Tenant's sole
cost and expense and without any abatement of rent. If Tenant shall fail to pay
any sum of money owed to any party other than Landlord, for which it is liable
hereunder or if Tenant shall fail to perform any other act on its part to be
performed hereunder and such failure shall continue for ten days after notice
thereof by Landlord, Landlord may, without waiving or releasing Tenant from
obligations of Tenant, but shall not be obligated to, make any such payment or
perform any such other act to be made or performed by Tenant. All sums so paid
by Landlord and all necessary incidental costs together with interest thereon at
the maximum rate permissible by law, from the date of such payment by Landlord,
shall be payable to Landlord on demand. Tenant covenants to pay any such sums
and Landlord shall have (in addition to any other right or remedy of Landlord)
all rights and remedies in the event of the non-payment thereof by Tenant as are
set forth in Article 23 hereof.
ARTICLE 34
MORTGAGEE PROTECTION
In the event of any default on the part of Landlord, Tenant
will give notice by registered or certified mail to any beneficiary of a deed of
trust or mortgage covering the Premises whose address shall have been furnished
to Tenant, and shall offer such beneficiary or mortgagee a reasonable
opportunity to cure the default, including time to obtain possession of the
Premises by power of sale or a judicial foreclosure, if such should prove
necessary to effect a cure.
ARTICLE 35
DEFINITION OF LANDLORD
The term "Landlord", as used in this Lease, so far as
covenants or obligations on the part of Landlord are concerned, shall be limited
to mean and include only the owner or owners, at the time in question, of the
fee title of the Premises or the lessees under any ground lease, if any. In the
event of any transfer, assignment or other conveyance or transfers of any such
title, Landlord herein named (and in case of any subsequent transfers or
conveyances, the then grantor) shall be automatically freed and relieved from
and after the date of such transfer, assignment or conveyance of all liability
as respects the performance of any covenants or obligations on the part of
Landlord contained in this Lease thereafter to be performed. Without further
agreement, the transferee of such title shall be deemed to have assumed and
agreed to observe and perform any and all obligations of Landlord hereunder,
during its ownership of the Premises. Landlord may transfer its interest in the
Premises without the consent of Tenant and such transfer or
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subsequent transfer shall not be deemed a violation on Landlord's part of any of
the terms and conditions of this Lease.
ARTICLE 36
WAIVER
The waiver by EITHER PARTY of any breach of any term, covenant
or condition herein contained shall not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant or condition herein
contained, nor shall any custom or practice which may grow up between the
parties in the administration of the terms hereof be deemed a waiver of or in
any way affect the right of EITHER PARTY to insist upon the performance by THE
OTHER PARTY in strict accordance with said terms. The subsequent acceptance of
rent hereunder by Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant or any term, covenant or condition of this Lease, other than
the failure of Tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent.
ARTICLE 37
IDENTIFICATION OF TENANT
If more than one person executes this Lease as Tenant:
(i) Each of them is jointly and severally liable for
the keeping, observing and performing of all of the terms, covenants,
conditions, provisions and agreements of this Lease to be kept, observed and
performed by Tenant, and
(ii) The term "Tenant" as used in this Lease shall mean
and include each of them jointly and severally. The act of or notice from, or
notice to refund to, or the signature of any one or more of them, with respect
to the tenancy of this Lease, including, but not limited to any renewal,
extension, expiration, termination or modification of this Lease, shall be
binding upon each and all of the persons executing this Lease as Tenant with the
same force and effect as if each and all of them had so acted or so given or
received such notice or refund or so signed.
ARTICLE 38
PARKING
The use by Tenant, its employees and invitees, of the parking
facilities of the Building shall be on the terms and conditions set forth in
EXHIBIT E attached hereto and by this reference incorporated herein and shall be
subject to such other agreement between Landlord and Tenant as may hereinafter
be established. Tenant, its employees and invitees shall use no more than four
(4) non-exclusive parking spaces per one thousand (1,000) square feet of leased
space. Tenant's use of the parking spaces shall be confined to the Building. If,
in Landlord's reasonable business judgment, it becomes necessary, Landlord shall
exercise due diligence to cause the creation of cross-parking easements and such
other agreements as are
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necessary to permit Tenant, its employees and invitees to use parking spaces on
the properties and buildings of Signature Center, which are separate legal
parcels from the Building. Tenant acknowledges that other tenants of the
Building and the tenants of the other buildings, their employees and invitees,
may be given the right to park at the Building.
ARTICLE 39
TERMS AND HEADINGS
The words "Landlord" and "Tenant" as used herein shall include
the plural as well as the singular. Words used in any gender include other
genders. The paragraph headings of this Lease are not a part of this Lease and
shall have no effect upon the construction or interpretation of any part hereof.
ARTICLE 40
EXAMINATION OF LEASE
Submission of this instrument for examination or signature by
Tenant does not constitute a reservation of or option for lease, and it is not
effective as a lease or otherwise until execution by and delivery to both
Landlord and Tenant.
ARTICLE 41
TIME
Time is of the essence with respect to the performance of
every provision of this Lease in which time or performance is a factor.
ARTICLE 42
PRIOR AGREEMENT: AMENDMENTS
This Lease contains all of the agreements of the parties
hereto with respect to any matter covered or mentioned in this Lease, and no
prior agreement or understanding pertaining to any such matter shall be
effective for any purpose. No provisions of this Lease may be amended or added
to except by an agreement in writing signed by the parties hereto or their
respective successors in interest.
ARTICLE 43
SEPARABILITY
Any provision of this Lease which shall prove to be invalid,
void or illegal in no way affects, impairs or invalidates any other provision
hereof, any such other provisions shall remain in full force and effect.
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ARTICLE 44
RECORDING
Neither Landlord nor Tenant shall record this Lease nor a
short form memorandum thereof without the consent of the other.
ARTICLE 45
CONSENTS
Whenever the consent of either party is required hereunder
such consent shall not be unreasonably withheld.
ARTICLE 46
LIMITATION ON LIABILITY
In consideration of the benefits accruing hereunder, Tenant
and all successors and assigns covenant and agree that, in the event of any
actual or alleged failure, breach or default hereunder by Landlord:
(a) The sole and exclusive remedy shall be against the
Landlord's interest in the Building;
(b) No partner, officer, agent or employee of Landlord shall
be sued or named as a party in any suit or action (except as may be necessary to
secure jurisdiction of Landlord);
(c) No service or process shall be made against any partner,
officer, agent or employee of Landlord (except as may be necessary to secure
jurisdiction of Landlord);
(d) No partner, officer, agent or employee of Landlord shall
be required to answer or otherwise plead to any service of process;
(e) No judgment will be taken against any partner, officer,
agent or employee of Landlord;
(f) Any judgment taken against any partner, officer, agent or
employee of Landlord may be vacated and set aside at any time nunc pro tunc;
(g) No writ of execution will ever be levied against the
assets of any partner, officer, agent or employee of Landlord
(h) These covenants and agreements are enforceable both by
Landlord and also by any partner, officer, agent or employee of Landlord.
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ARTICLE 47
RIDERS
Clauses, plats and riders, if any, signed by Landlord and
Tenant and affixed to this Lease are a part hereof.
ARTICLE 48
EXHIBITS
All Exhibits attached hereto are incorporated into this Lease.
ARTICLE 49
MODIFICATION FOR LENDER
If, in connection with obtaining construction, interim or
permanent financing for the Building the lender shall request reasonable
modifications in this Lease as a condition to such financing, Tenant will not
unreasonably withhold, delay or defer its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder or materially
adversely affect the leasehold interest hereby created or Tenant's rights
hereunder.
ARTICLE 50
PROJECT PLANNING
If Landlord requires the Premises for use in conjunction with
another suite or for other reasons connected with the Project planning program,
upon notifying Tenant in writing, Landlord shall have the right to relocate
Tenant to other space in the Project, at Landlord's sole cost and expense, and
the terms and conditions of the original Lease shall remain in full force and
effect, except that a revised EXHIBIT A reflecting the location of the new space
shall be attached to and become a part of this Lease. However, if the new space
does not meet with Tenant's approval, Tenant shall have the right to terminate
this Lease effective thirty (30) days after written notice to Landlord, which
notice shall be given within ten (10) days after receipt of Landlord's
notification.
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ARTICLE 51
OPTION TO RENEW
PROVIDED THAT TENANT IS NOT IN DEFAULT, (OR BEYOND ANY TIME PERIOD DURING WHICH
TENANT MAY CURE SUCH DEFAULT) HEREUNDER EITHER AT THE TIME OF EXERCISE OR AT THE
TIME THE EXTENDED TERM COMMENCES, TENANT SHALL HAVE THE OPTION TO EXTEND THE
INITIAL FIVE (5) YEAR TERM OF THIS LEASE FOR AN EXTENDED FIVE (5) YEARS, AT FAIR
MARKET VALUE. TENANT SHALL EXERCISE ITS OPTION BY GIVING LANDLORD WRITTEN NOTICE
("OPTION NOTICE") AT LEAST ONE HUNDRED EIGHTY (180) DAYS PRIOR TO THE EXPIRATION
OF THE INITIAL TERM OF THIS LEASE.
THIS OPTION IS PERSONAL TO BRIGHTSTAR INFORMATION TECHNOLOGY GROUP AND MAY NOT
BE ASSIGNED OR TRANSFERRED TO ANY THIRD PARTY.
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IN WITNESS WHEREOF, the parties have executed this Lease as of the date first
above written.
LANDLORD: ADDRESS:
PRINCIPAL LIFE c/o PARKWAY PROPERTIES, INC.
INSURANCE COMPANY, 0000 Xxxxxxx Xxxx
an Iowa Corporation Xxxxx 000
Xxxxxxxxxx, XX 00000
BY ____________________________________________________
ITS ____________________________________________________
BY ____________________________________________________
ITS ____________________________________________________
TENANT: ADDRESS:
BRIGHTSTAR INFORMATION 0000 XXXXXXX XXXX
TECHNOLOGY GROUP, SUITE 200
A DELAWARE CORPORATION XXXXXXXXXX, XX 00000
By: ___________________________________________________
Its: ___________________________________________________
By: ___________________________________________________
Its: ___________________________________________________
35
EXHIBIT A
OUTLINE OF TENANT'S FLOOR PLAN
EXHIBIT A
PAGE 1 OF 1
36
EXHIBIT A-1
THE BUILDING
REAL PROPERTY in the City of Pleasanton, County of Alameda, State of California,
described as follows:
PARCEL ONE:
Parcel B, Parcel Map 3971, filed June 27, 1983, in Book 138 of Parcel Maps, Page
63, Alameda County Records.
Excepting from the above - described parcel of land all oil, gas, minerals and
other hydrocarbon substances in and under or that may be produced from a depth
below 500 feet from the surface of said land, without right of entry upon the
surface of said land for the purpose of mining, drilling, exploring or
extracting such oil, gas, minerals and other hydrocarbon substances or other use
of or rights in or to any portion of the surface of said land to a depth of 500
feet below the surface thereof, as reserved in the Deed from Xxxx-XxXxxx
Communities, Inc., to Qualified Investments, Inc., dated June 25, 1967, recorded
June 27, 1967, Series No. AZ/60836, Alameda County Records.
A.P. No. 000-0000-000
PARCEL TWO:
Parcel C, Parcel Map 3971, filed June 27, 1983, in Map Book 138, at Page 63,
Alameda County Records.
Excepting from the above - described parcel of land all oil, gas, minerals and
other hydrocarbon substances in and under or that may be produced from a depth
below 500 feet from the surface of said land, without right of entry upon the
surface of said land for the purposes of mining, drilling, exploring or
extracting such oil, gas, minerals and other hydrocarbon substances or other use
of or rights in or to any portion of the surface of said land to a depth of 500
feet below the surface thereof, as reserved in the Deed from Xxxx-XxXxxx
Communities, Inc., to Qualified Investments, Inc., dated June 25, 1967, recorded
June 27, 1967, Series No. AZ/60836, Alameda County Records.
A.P. No. 000-0000-000
EXHIBIT A-1
PAGE 1 OF 1
37
EXHIBIT B
TENANT IMPROVEMENTS
THE LANDLORD SHALL CONSTRUCT TENANT IMPROVEMENTS PER A
MUTUALLY AGREEABLE SPACE PLAN. TENANT SHALL REIMBURSE LANDLORD FOR ANY COSTS IN
EXCESS OF $39,277.00 (INCLUDING ARCHITECTURAL FEES, PERMITS, AND A 4%
CONSTRUCTION MANAGEMENT FEE). THE TENANT MAY ADD ONE CONTRACTOR, SUBJECT TO
LANDLORD'S REASONABLE APPROVAL, TO LANDLORD'S GENERAL CONTRACTORS BID LIST.
IN WITNESS WHEREOF, this Tenant Improvement Agreement is
executed as of the date first above written.
LANDLORD: ADDRESS:
PRINCIPAL LIFE c/o PARKWAY PROPERTIES, INC.
INSURANCE COMPANY, 0000 Xxxxxxx Xxxx
an Iowa Corporation Xxxxx 000
Xxxxxxxxxx, XX 00000
BY ____________________________________________________
ITS
____________________________________________________
BY
____________________________________________________
ITS
____________________________________________________
TENANT: ADDRESS:
BRIGHTSTAR INFORMATION TECHNOLOGY GROUP, 4900 HOPYARD ROAD
A DELAWARE CORPORATION XXXXX 000
XXXXXXXXXX, XX 00000
By:
_____________________________________________________
Its:
_____________________________________________________
By:
_____________________________________________________
Its:
_____________________________________________________
EXHIBIT B
PAGE 1 OF 1
38
EXHIBIT C
STANDARDS FOR UTILITIES AND SERVICES
The following Standards for Utilities and Services are in
effect. Landlord reserves the right to adopt nondiscriminatory modifications and
additions hereto:
As long as Tenant is not in default under any of the terms,
covenants, conditions, provisions, or agreements of this Lease, Landlord shall:
(a) On Monday through Friday, except holidays, from 7 A.M. to
6 P.M. (and other times for a reasonable additional charge to be fixed by
Landlord), ventilate the Premises and furnish air conditioning or heating on
such days and hours, when in the judgment of Landlord it may be required for the
comfortable occupancy of the Premises. The air conditioning system achieves
maximum cooling when the window coverings are closed. Landlord shall not be
responsible for room temperatures if Tenant does not keep all window coverings
in the Premises closed whenever the system is in operation. Tenant agrees to
co-operate fully at all times with Landlord, and to abide by all regulations and
requirements which Landlord may prescribe for the proper function and protection
of said air conditioning system. Tenant agrees not to connect any apparatus,
device, conduit or pipe to the Building chilled and hot water air conditioning
supply lines. Tenant further agrees that neither Tenant nor its servants,
employees, agents, visitors, licensees or contractors shall at any time enter
mechanical installations or facilities of the Building or adjust, tamper with,
touch or otherwise in any manner affect said installations or facilities. The
cost of maintenance and service calls to adjust and regulate the air
conditioning system shall be charged to Tenant if the need for maintenance work
results from either Tenant's adjustment of room thermostats or Tenant's failure
to comply with its obligations under this section, including keeping window
coverings closed as needed. Such work shall be charged at hourly rates equal to
then current journeymen's wages for air conditioning mechanics.
(b) Landlord shall furnish to Tenant after-hours heating and
air conditioning at the rate of $25.00 per hour (two-hour minimum charge) for
such after-hours use. If the actual cost to Landlord of providing such
after-hours heating and air-conditioning increases at any time during the term
of this Lease, Landlord shall have the right to increase the hourly rate charged
by Landlord for such after-hours usage upon at least 10 days prior notice to
Tenant. Landlord shall xxxx Tenant monthly for such after-hours usage and Tenant
shall pay such charges to Landlord, as additional rent, within 20 days after
receipt of Landlord's statement of such charges.
(c) Landlord shall furnish to the Premises, during the usual
business hours on business days, electric current sufficient for normal office
use. Tenant agrees, should its electrical installation or electrical consumption
be in excess of the aforesaid quantity or extend beyond normal business hours,
to reimburse Landlord monthly for the measured consumption at the average cost
per kilowatt hour charged to the Building during the period. If a separate meter
is not
EXHIBIT C
PAGE 1 OF 3
39
installed at Tenant's cost, such excess cost will be established by an estimate
agreed upon by Landlord and Tenant, and if the parties fail to agree, as
established by an independent licensed engineer. Said estimates to be reviewed
and adjusted quarterly. Tenant agrees not to use any apparatus or device in, or
upon, or about the premises which may in any way increase the amount of such
services usually furnished or supplied to said Premises, and Tenant further
agrees not to connect any apparatus or device with wires, conduits or pipes, or
other means by which such services are supplied, for the purpose of using
additional or unusual amounts of such services without written consent of
Landlord. Should Tenant use the same to excess, the refusal on the part of
Tenant to pay upon demand of Landlord the amount established by Landlord for
such excess charge shall constitute a breach of the obligation to pay rent under
this Lease and shall entitle Landlord to the rights therein granted for such
breach. At all times Tenant's use of electric current shall never exceed the
capacity of the feeders to the Building or the risers or wiring installation and
Tenants shall not install or use or permit the installation or use of any
computer, larger than personal computer, or electronic data processing equipment
in the Premises, without the prior written consent of Landlord.
(d) Water will be available in public areas for drinking and
lavatory purposes only, but if Tenant requires, uses or consumes water for any
purposes in addition to ordinary drinking and lavatory purposes of which fact
Tenant constitutes Landlord to be the sole judge, Landlord may install a water
meter and thereby measure Tenant's water consumption for all purposes. Tenant
shall pay Landlord for the cost of the meter and the cost of the installation
thereof and throughout the duration of Tenant's occupancy, Tenant shall keep
said meter and installation equipment in good working order and repair at
Tenant's own cost and expense, in default of which Landlord may cause such meter
and equipment to be replaced or repaired and collect the cost thereof from
Tenant. Tenant agrees to pay for water consumed, as shown on said meter, as and
when bills are rendered, and on default in making such payment, Landlord may pay
such charges and collect the same from Tenant. Any such costs or expenses
incurred, or payments made by Landlord for any of the reasons or purposes
hereinabove stated shall be deemed to be additional rent payable by Tenant and
collectible by Landlord as such.
(e) Provide janitor service to the Premises, provided the same
are kept reasonably in order by Tenant, and if to be kept clean by Tenant, no
one other than persons approved by Landlord shall be permitted to enter the
Premises for such purposes. If the Premises are not used exclusively as offices,
they shall be kept clean and in order by Tenant, at Tenant's expense, and to the
satisfaction of Landlord, and by persons approved by Landlord. Tenant shall pay
to Landlord the cost of removal of any of Tenant's refuse and rubbish, to the
extent that the same exceeds the refuse and rubbish usually attendant upon the
use of the Premises as offices.
(f) Landlord reserves the right to stop service of the
elevator, plumbing, ventilation, air conditioning and electric systems, when
necessary, by reason of accident or emergency or for repairs, alterations or
improvements, in the judgment of Landlord desirable or necessary to be made,
until said repairs, alterations or improvements shall have been completed, and
shall further have no responsibility or liability for failure to supply elevator
facilities, plumbing,
EXHIBIT C
PAGE 2 OF 3
40
ventilating, air conditioning or electric service, when prevented from so doing
by strike or accident or by any cause beyond Landlord's reasonable control, or
by laws, rules, orders, ordinances, directions, regulations or requirements of
any federal, state, county or municipal authority or failure of gas, oil or
other suitable fuel supply or inability by exercise of reasonable diligence to
obtain gas, oil or other suitable fuel. It is expressly understood and agreed
that any covenants on Landlord's part to furnish any service pursuant to any of
the terms, covenants, conditions, provisions or agreements of this Lease, or to
perform any act or thing for the benefit of Tenant, shall not be deemed breached
if Landlord is unable to furnish or perform the same by virtue of a strike or
labor trouble or any other cause whatsoever beyond Landlord's control.
(g) Landlord shall maintain and repair the riser closet on the
ground floor of the Building and shall maintain or cause the appropriate
telecommunications service company to maintain the telecommunications cabling
and wiring to the Building. The cost of such maintenance and repair shall be
included in Direct Expenses. Tenant shall be responsible for the installation,
maintenance and repair at its expense of the telecommunications cabling and
wiring from the riser closet to the Premises and shall use only Pacific Xxxx for
such purposes. Tenant shall also be responsible for the installation,
maintenance and repair of any telecommunications cabling and wiring within the
Premises but may use any telecommunications service company to perform such
work.
EXHIBIT C
PAGE 3 OF 3
41
EXHIBIT D
RULES AND REGULATIONS
Signature Center
1. Except as specifically provided in the Lease to which these
Rules and Regulations are attached, no sign, placard, picture, advertisement,
name or notice shall be installed or displayed on any part of the outside or
inside of the Building without the prior written consent of Landlord. Landlord
shall have the right to remove, at Tenant's expense and without notice, any sign
installed or displayed in violation of this rule. All approved signs or
lettering on doors and walls shall be printed, painted, affixed or inscribed at
the expense of Tenant by a person approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds,
shades, screens or hanging plants or other similar objects attached to or used
in connection with any window or door of the Premises, or placed on any
windowsill, which is visible from the exterior of the Premises, Tenant shall
immediately discontinue such use. Tenant shall not place anything against or
near glass partitions or doors or windows which may appear unsightly from
outside the Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages,
exits, entrances, elevators, escalators, or stairways of the Building. The
halls, passages, exits, entrances, elevators, and stairways are not open to the
general public, but are open, subject to reasonable regulation, to Tenant's
business invitees. Landlord shall in all cases retain the right to control and
prevent access thereto of all persons whose presence in the judgment of Landlord
would be prejudicial to the safety, character, reputation and interest of the
Building and its tenants; provided that nothing herein contained shall be
construed to prevent such access to persons with whom any tenant normally deals
in the ordinary course of its business, unless such persons are engaged in
illegal or unlawful activities. No tenant and no employee or invitee of any
tenant shall go upon the roof of any building of the Project.
4. The directory of the building will be provided exclusively
for the display of the name and location of tenants only, and Landlord reserves
the right to exclude any other names therefrom.
5. All cleaning and janitorial services for the Building and
the Premises shall be provided exclusively through Landlord, and except with the
written consent of Landlord, no person or persons other than those approved by
Landlord shall be employed by Tenant or permitted to enter the Building for the
purpose of cleaning the same. Tenant shall not cause any unnecessary labor by
carelessness or indifference to the good order and cleanliness of the Premises.
EXHIBIT D
PAGE 1 OF 5
42
6. Landlord will furnish Tenant, free of charge, with two keys
to each door lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and Tenant
shall not alter any lock or install a new additional lock or bolt on any door of
its Premises. Tenant, upon the termination of its tenancy, shall deliver to
Landlord the keys of all doors which have been furnished to Tenant, and in the
event of loss of any keys so furnished, shall pay Landlord therefor.
7. If Tenant requires telegraphic, telephonic, burglar alarm
or similar services, it shall first obtain, and comply with, Landlord's
instructions in their installation.
8. Tenant shall not place a load upon any floor of the
Premises which exceeds the load per square foot which such floor was designed to
carry and which is allowed by law. Landlord shall have the right to prescribe
the weight, size and position of all equipment, materials, furniture or other
property brought into the Building. Heavy objects shall, if considered necessary
by Landlord, stand on such platforms as determined by Landlord to be necessary
to properly distribute the weight, which platforms shall be provided at Tenant's
expense. Business machines and mechanical equipment belonging to Tenant, which
cause noise or vibration that may be transmitted to the structure of the
Premises or to any space therein to such a degree to be objectionable to
Landlord or to any tenants in the Building, shall be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The persons employed to move such
equipment in or out of the Premises must be acceptable to Landlord. Landlord
will not be responsible for loss of, or damage to, any such equipment or other
property from any cause, and all damage done to the Premises, by maintaining or
moving such equipment or other property shall be repaired at the expense of
Tenant.
9. Tenant shall not use or keep in the Premises any kerosene,
gasoline or inflammable or combustible fluid or material other than those
limited quantities necessary for the operation or maintenance of office
equipment. Tenant shall not use or permit to be used in the Premises any foul or
noxious gas or substance, or permit or allow the Premises to be occupied or used
in a manner offensive or objectionable to Landlord or other occupants of the
Building by reason of noise, odors or vibrations, nor shall Tenant bring into or
keep in or about the Premises any birds or animals.
10. Tenant shall not use any method of heating or
air-conditioning other than that supplied by Landlord.
11. Tenant shall not waste electricity, water or
air-conditioning and agrees to cooperate fully with Landlord to assure the most
effective operation of the Premises' heating and air-conditioning and to comply
with any governmental energy-saving rules, laws or regulations of which Tenant
has actual notice, and shall refrain from attempting to adjust controls. Tenant
shall keep corridor doors closed, and shall close window coverings at the end of
each business day.
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12. Landlord reserves the right, exercisable without notice
and without liability to Tenant, to change the name and street address of the
Premises.
13. Landlord reserves the right to exclude from the Building
between the hours of 6 p.m. and 7 a.m. the following day, or such other hours as
may be established from time to time by Landlord, and on Sundays and legal
holidays, any person unless that person is known to the person or employee in
charge of the Building and has a pass or is properly identified. Tenant shall be
responsible for all persons for whom it requests passes and shall be liable to
Landlord for all acts of such persons. Landlord shall not be liable for damages
for any error with regard to the admission to or exclusion from the Building of
any person. Landlord reserves the right to prevent access to the Building in
case of invasion, mob, riot, public excitement or other commotion by closing the
doors or by other appropriate action.
14. Tenant shall close and lock the doors of its Premises and
entirely shut off all water faucets or other water apparatus, and electricity,
gas or air outlets before tenant and its employees leave the Premises. Tenant
shall be responsible for any damage or injuries sustained by other tenants or
occupants of the Building or by Landlord for noncompliance with this rule.
15. Tenant shall not obtain for use on the Premises ice,
drinking water, food beverages, towel or other similar services upon the
Premises, except at such hours and under such regulations as may be fixed by
Landlord.
16. The toilet rooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage of damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees or
invitees, shall have caused it.
17. Tenant shall not sell, or permit the sale at retail, of
newspapers, magazines, periodicals, theater tickets or any other goods or
merchandise to the general public in or on the Premises. Tenant shall not make
any room-to-room solicitation of business from other tenants in the Building.
Tenant shall not use the Premises for any business or activity other than that
specifically provided for in Tenant's Lease.
18. Tenant shall not install any radio or television antenna,
loudspeaker or other devices on the roof or exterior walls of the Premises.
Tenant shall not interfere with radio or television broadcasting or reception
from or in the Building or elsewhere.
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19. Tenant shall not xxxx, drive nails, screw or drill into
the partitions, woodwork or plaster or in any way deface the Premises or any
part thereof, except in accordance with the provisions of the Lease pertaining
to alterations. Landlord reserves the right to direct electricians as to where
and how telephone and telegraph wires are to be introduced to the Premises.
Tenant shall not cut or bore holes for wires. Tenant shall not affix any floor
covering to the floor of the Premises in any manner except as approved by
Landlord. Tenant shall repair any damage resulting from noncompliance with this
rule.
20. Tenant shall not install, maintain or operate upon the
Premises any vending machines without the written consent of Landlord.
21. Canvassing, soliciting and distributing of handbills or
any other written material, and peddling in the Building are prohibited, and
Tenant shall cooperate to prevent such activities.
22. Landlord reserves the right to exclude or expel from the
Building any person who, in Landlord's judgment, is intoxicated or under the
influence of liquor or drugs or who is in violation of any of the Rules and
Regulations of the Building.
23. Tenant shall store all its trash and garbage within its
Premises or in other facilities provided by Landlord. Tenant shall not place in
any trash box or receptacle any material which cannot be disposed of in the
ordinary and customary manner of trash and garbage disposal. All garbage and
refuse disposal shall be made in accordance with directions issued from time to
time by Landlord.
24. The Premises shall not be used for the storage of
merchandise held for sale to the general public, or for lodging or for
manufacturing of any kind, nor shall the Premises be used for any improper,
immoral or objectionable purpose. No cooking shall be done or permitted on the
Premises without Landlord's consent, except that use by Tenant of Underwriter's
Laboratory approved equipment for brewing coffee, tea, hot chocolate and similar
beverages or use of microwave ovens for employee use shall be permitted,
provided that such equipment and use is in accordance with all applicable
federal, state, county and city laws, codes, ordinances, rules and regulations.
25. Tenant shall not use in the Premises any hand truck except
those equipped with rubber tires and side guards or such other material-handling
equipment as Landlord may approve. Tenant shall not bring any other vehicles of
any kind into the Premises.
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45
26. Without the written consent of Landlord, Tenant shall not
use the name of the Building in connection with or in promoting or advertising
the business of Tenant except as Tenant's address.
27. Tenant shall comply with all safety, fire protection and
evacuation procedures and regulations established by Landlord or any
governmental agency.
28. Tenant and its employees, guests and invitees shall not
enter into the waterways located in the Building. No object of any kind may be
floated or submerged in the waterways, and no foreign substance of any kind may
be thrown in the waterways. The expense of any breakage or damage to any
mechanical equipment related to the waterways resulting from violation of this
rule or any expense incurred restoring the waterways to their normal condition
shall be borne by the tenant who, or whose employees or invitees, shall have
caused such damage.
29. Tenant assumes any and all responsibility for protecting
its Premises from theft, robbery and pilferage, which includes keeping doors
locked and other means of entry to the Premises closed.
30. Tenant's requirements will be attended to only upon
appropriate application to the Building management office by an authorized
individual. Employees of Landlord shall not perform any work or do anything
outside of their regular duties unless under special instructions from Landlord,
and no employee of Landlord will admit any person (Tenant or otherwise) to any
office without specific instructions from Landlord.
31. Landlord may waive any one or more of these Rules and
Regulations for the benefit of Tenant or any other tenant, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in favor
of Tenant or any other tenant, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all of the tenants of the
Building.
32. These Rules and Regulations are in addition to, and shall
not be construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of Tenant's lease of its Premises in the
Building.
33. Landlord reserves the right to make such other and
reasonable Rules and Regulations as, in its judgment, may from time to time be
needed for safety and security, for care and cleanliness of the Building and for
the preservation of good order therein. Tenant agrees to abide by all such Rules
and Regulations hereinabove stated and any additional rules and regulations
which are adopted.
34. Tenant shall be responsible for the observance of all of
the foregoing rules by Tenant's employees, agents, clients, customers, invitees
and guests.
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46
EXHIBIT E
PARKING RULES AND REGULATIONS
The following rules and regulations shall govern use of the parking facilities
which are appurtenant to the Building.
1. All claimed damage or loss must be reported and itemized in
writing delivered to the Landlord within ten business days
after any claimed damage or loss occurs. Any claim not so made
is waived. Landlord has the option to make repairs at its
expense of any claimed damage within two business days after
filing of any claim. In all court actions the burden of proof
to establish a claim remains with Tenant. Court actions by
Tenant for any claim must be filed in the court of
jurisdiction where a claimed loss occurred within ninety days
after date of damage or loss. Landlord is not responsible for
damage by water, fire, or defective brakes, or parts, or for
the act of omissions of others, or for articles left in the
car. The total liability of Landlord is limited to $250.00 for
all damages or loss to any car. Landlord is not responsible
for loss of use.
2. Tenant shall not park or permit the parking of any vehicle
under its control in any parking areas designated by Landlord
as areas for parking by visitors to the Building. Tenant shall
not leave vehicles in the parking areas overnight nor park any
vehicles in the parking areas other than automobiles,
motorcycles, motor driven or non-motor driven bicycles or
four-wheeled trucks.
3. Parking stickers or any other device or form of identification
supplied by Landlord as a condition of use of the Parking
Facilities shall remain the property of Landlord. Such parking
identification device must be displayed as requested and may
not be mutilated in any manner. The serial number of the
parking identification device may not be obliterated. Devices
are not transferable and any device in the possession of an
unauthorized holder will be void.
4. No overnight or extended term storage of vehicles shall be
permitted.
5. Vehicles must be parked entirely within the painted stall
lines of a single parking stall.
6. All directional signs and arrows must be observed.
7. The speed limit within all parking areas shall be 5 miles per
hour.
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8. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
(c) where "no parking" signs are posed;
(d) on ramps;
(e) in cross hatched areas; and
(f) in such other areas as may be designated by Landlord
or Landlord's Parking Operator.
9. Every xxxxxx is required to park and lock his own vehicle. All
responsibility for damage to vehicles is assumed by the
xxxxxx.
10. Loss of theft of parking identification devices from
automobiles must be reported immediately, and a lost or stole
report must be filed by the customer at that time. Landlord
has the right to exclude any car from the parking facilities
that does not have an identification.
11. Any parking identification devices reported lost or stolen
found on any unauthorized car will be confiscated and the
illegal holder will be subject to prosecution.
12. Lost or stolen devices found by the purchaser must be reported
immediately to avoid confusion.
13. Washing, waxing, cleaning or servicing of any vehicle in any
area not specifically reserved for such purpose is prohibited.
14. Landlord reserves the right to refuse the sale of monthly
stickers or other parking identification devices to any tenant
or person and/or his agents or representatives who willfully
refuse to comply with these Rules and Regulations and all
unposted City, State or Federal ordinances, laws or
agreements.
15. Landlord reserves the right to modify and/or adopt such other
reasonable and non-discriminatory rules and regulations for
the parking facilities as it deems necessary for the operation
of the parking facilities. Landlord may refuse to permit any
person who violates these rules to park in the parking
facilities, and any violation of the rules shall subject the
car to removal.
EXHIBIT E
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