EXHIBIT 10.9
STANDARD INDUSTRIAL LEASE
Lease Preparation Date: June 4, 1996
Lessor: Public Storage Properties XVIII, Inc., A California Corporation
_____________________________________________________________________________
Lessee: Copper Mountain Communications, Inc., A California Corporation
Trade Name:___________________________________________________________________
1. Lease Terms
1.01 Premises: The Premises referred to in this Lease contain
approximately 9,943 rentable/square feet and are located on Exhibit "A" as
described in Exhibit "Al" attached. The address of the leased Premises is 0000
Xxxx Xxxx., Xxxxx X000, X000, B202, B203, B204 San Diego, CA 92121
______________________________________________________________________________
1.02 Project: The Project consists of approximately 57,015 rentable/square
feet.
1.03 Lessee's Notice Address: Lessee's Notice Address is the address of
the leased Premises as defined in paragraph 1.01 unless otherwise specified
here: same as 1.01 above
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1.04 Lessor's Notice Address: Lessor's Notice Address is: 0000 Xxxx Xxxx.,
Xxxxx X000 Xxx Xxxxx, XX 00000
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1.05 Lessee's Permitted Use: General offices for design, light assembly
manufacturing, marketing and related research and development for communications
equipment manufacture.
1.06 Lease Term: The Lease Term commences on June 8, 1996 and ends on June
7, 1999 (36 months, and -0- days).
1.07 Base Monthly Rent: $4,573.78 in lawful money of the United States of
America.
1.08 Security Deposit: $13,721.34 in lawful money of the United States
of America.
1.09 Lease Documentation Fee: $ waived in lawful money of the United
States of America.
1.10 Proportionate Share: Xxxxxx's Proportionate Share is .1743
1.12 Lessee is entitled to unassigned vehicle parking spaces subject to
the provisions of section 10 of this Lease.
2. Demise and Possession
2.01 Lessor leases to Lessee and Lessee leases from Lessor the Premises
described in subsection 1.01. By entering the Premises, Xxxxxx acknowledges that
it has examined the Premises and accepts the Premise in their present condition
subject to any additional work Lessor has agreed to do as stated on Exhibit B.
(1)
2.02 If for any reason Lessor cannot deliver possession of the Premises on
the date the Lease commences, Lessor shall not be subject to any liability nor
shall the validity of this Lease be affected. If Lessee has not caused such
delay there shall be a proportionate reduction of the Base Monthly Rent covering
the period between the commencement of the Lease Term and the date when Lessor
can deliver possession. However, either Lessor or Lessee, unless it is the cause
of the delay, has the right to cancel this Lease by written notification if
possession of the Premises is not delivered within ninety (90) days of the date
the Lease Term commences.
2.01 REFER TO ADDENDUM I.
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3 BASE MONTHLY RENT
3.0l Base Monthly Rent: On the first day of each calendar month of the
Lease Term, Lessee will pay, without deduction or offset, prior notice or
demand, Base Monthly Rent at the place designated by Lessor. However, the first
month's rent is due and payable upon execution of this Lease. In the event that
the Term of this Lease commences or ends on a day other than the first day of a
calendar month, a prorated amount of Base Monthly Rent shall be due upon
execution and it will be calculated using a thirty (30) day month.
3.02 Cost of Living Adjustment: The Base Monthly Rent is subject to
increase on the expiration of the twelve (12th) calendar month after (a) Lessee
has taken possession of the Premises or, (b) to Lease Term commences, whichever
occurs earlier, and on the expiration of each twelve (12th) month thereafter
("Adjustment Date"). In no event, however, will the amount of Base Monthly Rent
for one twelve (12) month period be less than the Base Monthly Rent for the
preceding twelve (12) month period. STIPULATED BASE RENTAL INCREASES (See below)
A. At the same time the Base Monthly Rent is adjusted, the Security
Deposit will also be adjusted to equal the new Base Monthly Rent amount and the
deficiency is due concurrently with the next payment of Base Monthly Rent.
B. If after this Lease is executed, the Index is discontinued or
revised, Lessor reserves the right to use a conversion factor formula or table
as may be published by the Bureau of Labor Statistics or a different Index in
order to obtain substantially the same result.
3.03 Any installment of rent or any other charge payable which is not paid
within five (5) days after it becomes due will be considered past due and Lessee
will pay to Lessor as Additional Rent a late charge equal to ten percent (10%)
of such installment or the sum of twenty-five dollars ($25.00), whichever is
greater, for each month or fractional month transpiring from the date due until
paid. A twenty-five dollar ($25.00) handling charge will be paid by Lessee to
Lessor for each returned check and, thereafter, Xxxxxx will pay all future
payments of rent or other charges due by money order or cashier's check.
3.04 The amount of the Base Monthly Rent includes projected construction
of Lessee's improvement as indicated on Exhibit "B" attached. In the event that
Lessee requests Lessor to construct additional improvements and/or final
construction costs exceed original estimates, Lessor may increase the Base
Monthly Rent according to the terms and conditions outlined on Exhibit "B", or
elsewhere in this Lease.
4. COMMON AREAS
4.01 Definitions:
"ENTIRE PREMISES": The Premises, the Project (of which the Premises are a
part), the Common Areas, the land upon which the Project and the Common Areas
are located, along with all other improvements and facilities thereon are
collectively referred to as the "Entire Premises"
"COMMON AREAS": "Common Area" is defined as all areas and facilities outside
the Premises and within the exterior boundary line of the Entire Premises that
are provided and designated by Lessor for the non-exclusive use of Lessor,
Lessee and other lessees of the Project and their respective employees, agents,
customers and invitees. Common Areas include, but are not limited to all
parking areas, loading and unloading areas, trash areas, roadways, sidewalks,
walkways, parkways, driveways, corridors, landscaped areas and any restrooms
used in common by lessees.
4.02 Lessee, its employees, agents, customers and invitees have the non-
exclusive right (in common with other lessees, Lessor, and any other person
granted use by Lessor) to use of the Common Areas. Xxxxxx agrees to abide by and
conform to, and to cause its employees, agents, customers and invitees to abide
by and conform to all rules and regulations established by Lessor subject to
provisions of section 26 and the Rule and Regulations attached to this Lease.
STIPULATED RENTAL INCREASES: JUNE 8, 1997 - JUNE 7, 1998 $4772.64
JUNE 8, 1998 - JUNE 7, 1999 $4971.50
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4.03 Lessor has the right, in its sole discretion, from time to time, to:
1) make changes to the Common Areas, including without limitation, changes in
the location, size, shape and number of driveways, entrances, parking spaces,
parking areas, ingress, egress, direction of driveways, entrances, corridors,
parking areas and walkways; 2) close temporarily any of the Common Areas for
maintenance purposes so long as reasonable access to the Premises remains
available; 3) add additional buildings and improvements to the Common Areas; 4)
use the Common Areas while engaged in making additional improvements, repairs or
alterations to the Entire Premises or any portion thereof; do and perform any
other acts or make any other changes in, to or with respect to the Common Areas
and Entire Premises as Lessor may, in the exercise of sound business judgment,
deem to be appropriate.
5. Additional Rent
5.01 All charges payable by Lessee other than Base Monthly Rent are called
"Additional Rent". Unless this lease provides otherwise, Additional Rent is to
be paid with the next monthly installment of Base Monthly Rent and is subject to
the provisions of 3.03. The term "rent" whenever used in this Lease means Base
Monthly Rent and Additional Rent.
5.02 Operating Costs
A. "Operating Costs" are all costs and expenses of ownership, operation,
maintenance, repair and insurance incurred by Lessor including, but not limited
to, the following: all supplies, materials, labor and equipment, used in or
related to the operation and maintenance of the Common Areas; all utilities,
including but not limited to, water, electricity, gas, heating, lighting, sewer,
waste disposal related to the maintenance or operation of the Common Areas; all
air-conditioning and ventilating costs related to the maintenance or operation
of the Entire Premises; all Lessor's costs in managing, maintaining, repairing,
operating and insuring the Entire Premises, including, for example, clerical,
supervisory, and janitorial staff; all maintenance, management and service
agreements, including but not limited to, janitorial, security, trash removal
related to the maintenance or operation of the Entire Premises; all legal and
accounting costs and fees for licenses and permits related to the ownership and
operation of the Entire Premises; all insurance premiums and costs of fire,
casualty, and liability coverage, rent abatement and earthquake insurance and
any other type of insurance related to the Entire Project; all operation,
maintenance and repair costs to the Common Areas, including but not limited to,
sidewalks, walkways, parkways, parking areas, loading and unloading areas, trash
areas, roadways, driveways, corridors, and landscaped area, including for
example, costs of resurfacing and restriping parking areas; all maintenance and
repair costs of building exteriors (including painting), restrooms used in
common by lessee and signs and directories of the Entire Premises; amortization
(along with reasonable financing charges) of capital improvements made to the
Common Areas which may be required by any government authority or which will
improve the operating efficiency of the Entire Premises; a five percent (5%)
fee for Lessor's supervision of the Common Areas (five percent (5%) of the
total above mentioned costs and expenses incurred in a calendar year). Operating
Costs will not include depreciation of the Entire Premises.
B. Lessee shall pay to Lessor Lessee's Proportionate Share of the
Operating Costs as indicated in subsection 1.10. Such payment shall be paid by
Lessee with and in addition to the monthly payment of Base Monthly Rent. Lessee
shall, if Lessor so elects, pay to Lessor on a monthly basis, in advance, the
amount which Lessor reasonably estimates to be Xxxxxx's Proportionate Share of
the Operating Costs. In the event of such election by Xxxxxx, Lessor shall
periodically determine Xxxxxx's share of the actual Operating Costs, and in the
event that the amount which Xxxxxx has paid to Lessor on account of the
estimated Operating Costs is less than his share of such actual Operating costs,
Lessee shall pay such difference to Lessor on the next rent payment date. In the
event that Xxxxxx has paid to Lessor more than his share of such actual
Operating Costs, the amount of such difference shall be credited against
Xxxxxx's payments of Operating Costs next due.
C. Failure by Lessor to provide Lessee with a statement by April 1st of
each year shall not constitute a waiver by Lessor of its right to collect
Xxxxxx's share of Operating Costs. ln addition, if for any reason Lessor should
not elect to xxxx Xxxxxx for lump sum Operating Costs or estimates for a
particular calendar year, Xxxxxx's right to charge Lessee for such expenses in
subsequent years is not waived.
5.03 Taxes
A. "Real Property Taxes" are: (i) any fee, license fee, license tax,
business license fee, commercial rental tax, levy, charge, assessment, penalty
or tax imposed by any taxing authority against the Property; (ii) any tax or fee
on Lessor's right to receive, or the receipt of, rent or income from the
Property or against Landlord's business of leasing the Property, (iii) any tax
or charge for fire protection, streets, sidewalks, road maintenance, refuse or
other services provided to the Property by any governmental agency; (iv) any tax
imposed upon this transaction, or based upon a reassessment of the Project due
to a change in ownership or transfer of all or part of Xxxxxx's interest in the
Property; and (v) any charge or fee replacing, substituting for, or in addition
to any tax previously included within the definition of real property tax. Real
Property Taxes do not, however, include Lessor's federal or state income,
franchise, inheritance or estate taxes.
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B. Lessee shall pay to Lessor Lessee's Proportionate Share of the Real
Property Taxes as indicated in subsection 1.10. Such payment shall be paid by
Lessee with and in addition to the monthly payment of Base Monthly Rent. Lessee
shall, if Lessor so elects, pay to Lessor on a monthly basis, in advance, the
amount which Lessor reasonably estimates to be Lessee's Proportionate Share of
the Real Property Taxes. In the event of such election by Xxxxxx, Lessor shall
periodically determine Xxxxxx's share of the actual Real Property Taxes, and in
the event that the amount which Xxxxxx has paid to Lessor on account of the Real
Property Taxes is less than his share of such actual Real Property Taxes, Lessee
shall pay such difference to Lessor on the next rent payment date. In the event
that Xxxxxx has paid to Lessor more than his share of such actual Real Property
Taxes, the amount of such difference shall be credited against Xxxxxx's payment
of Real Property Taxes next due.
C. Personal Property Taxes: Lessee will pay all taxes charged against
trade fixtures, furnishings, equipment or any other personal property belonging
to Xxxxxx. Lessee will have personal property taxes billed separately from the
Project. If any of Xxxxxx's personal property is taxed with the Project, Lessee
will pay Lessor the taxes for the personal property upon demand by Xxxxxx.
5.04 Based on Lessee's Proportionate Share defined in subsection 1.10,
Xxxxxx agrees to pay as Additional Rent to Lessor its share of any parking
charges, utility surcharges, occupancy taxes, or any other costs resulting from
the statutes or regulations, or interpretations thereof, enacted by any
governmental authority in connection with the use or occupancy of the Project or
the parking facilities serving the Project, or any part thereof.
6. Security Deposit
6.01 If Lessee defaults with respect to any provision of this Lease,
Lessor may retain, use or apply all or any part of the Security Deposit to
compensate Lessor for any loss or damage suffered by Xxxxxx's default including
but not limited to, the payment of Base Monthly Rent, Additional Rent or other
rental sums due, and for payment of amounts Lessor is obligated to spend by
reason of Lessee's default. If any portion is so retained, used or applied,
Lessee, upon demand, will deposit with Lessor an amount sufficient to restore
the deposit to its original amount, as adjusted per subsection 3.02. Lessor will
not be required to keep the Security Deposit separate from its general funds,
and Xxxxxx will not be entitled to interest on it. If Xxxxxx fully and
faithfully performs every provision of this Lease, the Security Deposit or a
balance thereof will be returned to Lessee within the time frame permitted by
law. In no event will Lessee have the right to apply any part of the Security
Deposit to any rents payable under this Lease.
7. Lease Documentation Fee
8. Use of Premises; Quiet Conduct
8.01 The Premises may be used and occupied only for Xxxxxx's Permitted Use
as shown in subsection 1.05 and for no other purpose, without obtaining Xxxxxx's
prior written consent. Lessee will comply with all covenants, conditions and
restrictions affecting the Premises. Lessee will promptly comply with all laws,
ordinances, orders and regulations affecting the Premises. Lessee will not
perform any act or carry on any practices that may injure the Project or the
Premises or be a nuisance or menace, or disturb the quiet enjoyment of other
lessees, in the Project including but not limited to equipment which causes
vibration, use or storage of chemicals, heat or noise which is not properly
insulated, or anything which causes noxious or unpleasant odors. Lessee will not
cause, maintain or permit any outside storage on or about the Premises. In
addition, Lessee will not allow any condition or thing to remain on or about the
Premises which diminishes the appearance or aesthetic qualities of the Premises
and/or the Project or the surrounding property. The keeping of a dog or other
animal on or about the Premises is prohibited. (1)
9. Tenant Improvements
9.01 Tenant Improvements to be performed in the Premises, if any, will be
performed in accordance with the terms and provisions entitled "Lessor's Work"
contained in "Exhibit B" attached. Thereafter during the Lease Term, Lessor
will be under no obligation to alter, change, decorate or improve the Premises.
10. Parking
10.01 Lessee and Lessee's customers, suppliers, employees, and invitees
have the non-exclusive right to park in common with other lessees in the parking
facilities as designated by Lessor. Xxxxxx agrees not to overburden the parking
facilities and agrees to cooperate with Xxxxxx and other lessees in the use of
the parking facilities. Lessor reserves the right to, on an equitable basis,
assign specific spaces with or without charge to Lessee as Additional Rent, make
changes in the parking layout from time to time, and to establish reasonable
time limits on parking.
8.01 REFER TO ADDENDUM I.
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11. Utilities
11.01 Lessee will pay for all gas, heat, light, power, electricity, or
other services metered, chargeable to or provided to the Premises. Lessor
reserves the right to install separate meters for any such utility.
11.02 Lessor will not be liable or deemed in default to Lessee nor will
there be any abatement of rent for any interruption or reduction of utilities or
services not caused by any act of Lessor or any act reasonably beyond Lessor's
control. Xxxxxx agrees to comply with energy conservation programs implemented
by Lessor by reason of enacted laws or ordinances.
11.03 Lessee will contract and pay for all telephone and such other
services for the Premises subject to the provisions of subsection 12.03.
12. Alterations, Xxxxxxxx's Liens
12.01 Lessee will not make any alterations to the interior of the Premises,
without Xxxxxx's prior written consent which will not be unreasonably withheld.
If Lessor gives its consent, no such alterations will proceed without Lessor's
prior written approval of (i) Xxxxxx's contractor, (ii) certificates of
insurance by Xxxxxx's contractor for public liability and automobile liability
and property damage insurance with limits not less than $1,000,000/$250,000/
$500,000 respectively endorsed to show Lessor as an additional insured and for
worker's compensation as required and (iii) detailed plans and specification for
such work. In addition, before alterations may begin, valid building permits or
other permits or licenses required must be furnished to Lessor, and, once the
alterations begin, Lessee will diligently and continuously pursue their
completion. At Lessor's option, any alterations may become part of the realty
and belong to Lessor. If requested by Lessor, Lessee will pay, prior to the
commencement of construction, an amount determined by Lessor necessary to cover
the costs of demolishing such alterations and/or the cost of returning the
Premises to its condition prior to such alterations. As a further condition to
giving such consent, Lessor may require Lessee to provide Lessor, at Xxxxxx's
sole cost and expense, a payment and performance bond in form acceptable to
Lessor, in a principal amount not less than one and one-half times the estimated
costs of such alterations, to ensure Lessor against any liability for mechanic's
and materialmen's liens and to ensure completion of work and such bond will
continue in force for a period no less than 131 days after the completion of
such work.
12.02 Notwithstanding anything in subsection 12.01, Lessee may, with
written consent of Lessor, install trade fixtures, equipment, and machinery in
conformance with the ordinances of the applicable city and county, and they may
be removed upon termination of this Lease provided the Premises are not damaged
by their removal.
12.03 All private telephone systems and/or other related
telecommunications equipment and lines may not be installed without Lessor's
prior written consent. In addition, if Lessor gives consent all equipment must
be installed within Lessee's Premises and, upon termination of this Lease
removed and the Premises restored to the same condition as before such
installation.
12.04 Lessee will pay all costs for alterations and will keep the
Premises, the Project and the underlying property free from any liens arising
out of work performed for, materials furnished to, or obligation incurred by
Lessee as outlined in the applicable parts of subsection 12.01 above.
12.05 Lessor will have the right to construct or permit construction of
tenant improvements in or about the Project for existing and new lessees and to
alter any public areas in and around the Project. Notwithstanding anything which
may be contained in this Lease, Xxxxxx understands this right of Xxxxxx and
agrees that such construction will not be deemed to constitute a breach of this
Lease by Xxxxxx and Xxxxxx waives any such claim which it might have arising
from such construction.
13. Fire Insurance; Hazards and Liability Insurance
13.01 Except as expressly provided as Xxxxxx's Permitted Use, subsection
1.05, or as otherwise consented to by Lessor in writing, Lessee shall not do or
permit anything to be done within or about the Premises which will increase the
existing rate of insurance on the Project or shall, at its sole cost and
expense, comply with any requirements pertaining to the Premises or any
insurance organization insuring the Project and Project-related apparatus.
Xxxxxx agrees to pay to Lessor, as Additional Rent, any increases in premiums on
policies resulting from Xxxxxx's Permitted Use or other use consented to by
Lessor which increases Lessor's premiums or requires extended coverage by Lessor
to insure the Premises.
13.02 Lessee, at all times during the term of this Lease and at Xxxxxx's
sole expense, will maintain a policy of standard fire and extended coverage
insurance with "all risk" coverage on all Lessee's improvements and alterations
in or about the Premises and on all personal property and equipment to the
extent of at least ninety percent (90%) of their full replacement value. The
proceeds from this policy will be used by Xxxxxx for the replacement of personal
property and equipment and the restoration of Xxxxxx's improvements and/or
alterations. This policy will contain an express waiver, in favor of Xxxxxx, of
any right of subrogation by the insurer.
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13.03 Lessee, at all times during the term of this Lease and at Xxxxxx's
sole expense, will maintain a policy of comprehensive general liability coverage
with limits of not less than $1,000,000 combined single loss for bodily injury
and property damage insuring against all liability of Lessee and its authorized
representatives arising out of or in connection with Xxxxxx's use or occupancy
of the Premises. This policy of insurance will name Lessor as an additional
insured and will include an express waiver of subrogation by the insurer in
favor of Xxxxxx and will release Lessor from claims for damage to any person, to
the Premises, and to the Project, and to Xxxxxx's personal property, equipment,
improvements and alterations in or on the Premises of the Project, caused by or
resulting from risks which are to be insured against by Lessee under this Lease.
13.04 All insurance required to be provided by Lessee under this Lease will
(a) be issued by an insurance company authorized to do business in the state in
which the Premises are located and which is satisfactory to Lessor, (b) be
primary and noncontributing with any insurance carried by Lessor, and (c)
contain an endorsement requiring at least thirty (30) days prior written notice
of cancellation to Lessor before cancellation or change in coverage, scope
or limit of any policy. Lessee will deliver a certificate of insurance or a copy
of the policy to Lessor within thirty (30) days of execution of the Lease and
will provide evidence of renewed insurance coverage at each anniversary, prior
to the expiration of any current policies. Lessee's failure to provide evidence
of this coverage to Lessor may, in Xxxxxx's sole discretion, constitute a
default under this Lease. (1)
14. Indemnification and Waiver of Claim
14.01 Lessee waives all claims against Lessor for damage to any property
in or about the Premises and for injury to any persons, including death
resulting therefrom, regardless of cause or time of occurrence. Lessee will
defend, indemnify and hold Lessor harmless from and against any and all claims,
actions, proceedings, expenses, damages and liabilities, including attorneys'
fees, arising out of, connected with, or resulting from any use of the Premises
by Lessee, its employees, agents, visitors or licensees, except for any damage
or injury which is the direct result of intentional acts by Lessor, its
employees, agents, visitors or licensees.
15. Repairs
15.01 Lessee shall, at its sole expense, keep and maintain the Premises
and every part thereof (excepting air-conditioning, common use equipment,
exterior walls and roofs, which Lessor agrees to repair unless damages are due
to the neglect or intentional acts of Lessee or its agents, employees, visitors,
or licensees), including interior windows, skylights, doors, any store fronts
and the interior of the Premises, in good and sanitary order, condition and
repair. Lessee will, also, at its sole cost keep and maintain all utilities,
fixtures, plumbing and mechanical equipment used by Lessee in good order and
repair and furnish all expendables (light bulbs [unless provided by Lessor],
paper goods, soaps, etc.) used in the Premises. The standard for comparison and
need of repair will be the condition of the Premises at the time of commencement
of this Lease and all repairs will be made by a licensed and bonded contractor
approved by Lessor.
15.02 Lessee will not make repairs to the Premises at the cost of Lessor
whether by deduction of rent or otherwise or vacate the Premises or terminate
the Lease with abatement or termination of rent because repairs are not made. If
during the Term, any alteration, addition or change to the Premises is required
by legal authorities, Lessee, at its sole expense, shall promptly make the same.
Lessor reserves the right to make any such repairs not repaired or maintained in
good condition by Xxxxxx and Xxxxxx shall reimburse Lessor for all such costs
upon demand. If such repairs have not been made within 30 days of notice to
repair by Lessor to Lessee, Lessor may make such repairs and such costs of
repairs shall be at Lessee's expense. Failure to pay expenses within 30 days of
presentation, shall be deemed a breach of this Lease. (2)
16. Auction, Signs, Landscaping
16.01 Lessee will not conduct or permit to be conducted any sale by auction
on the Premises. Lessor will have the right to control landscaping and approve
the placement, size, and quality of signs. Lessee shall comply with the terms
and conditions regarding sign criteria set forth in Exhibit "C" attached. Lessee
will not make alterations or additions to the landscaping and will not place
signs which are visible from the outside of any buildings of the Project without
prior written consent of Lessor. Lessor will have the right in its sole
discretion to withhold its consent. Any signs not in conformity with this Lease
may be removed by Lessor at Xxxxxx's expense.
(1) CONTINUED ON ADDENDUM I, SECTION 13.05.
(2) 15.02 REFER TO ADDENDUM I
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17. Entry By Lessor
17.01 Lessee will permit Lessor and Lessor's agents to enter the Premises
at all reasonable times for the purpose of inspecting the same, or for the
purpose of maintaining the Project, or for the purpose of making repairs,
alterations or additions to any portion of the Project, including the erection
and maintenance of such scaffolding, canopies, fences and props as may be
required, or for the purpose of posting notices of nonresponsibility for
alterations, additions or repairs, or for the purpose of showing the Premises to
prospective tenants during the last six months of the Lease Term, or placing
upon the Project any usual or ordinary "for sale" signs, without any rebate of
rents and without any liability to Lessee for any loss of occupation or quiet
enjoyment of the Premises thereby occasioned. Lessee will permit Lessor at any
time within sixty (60) days prior to the expiration of this Lease, to place upon
the Premises any usual or ordinary "to let" or "to lease" signs. For each of the
above purposes, Lessor will at all times have and retain a key with which to
unlock all of the doors in, upon and about the Premises, excluding Xxxxxx's
vaults and safes. Lessee will not alter any lock or install a new or additional
lock or any bolt on any door of the Premises without the prior written consent
of Lessor, which will not be unreasonably withheld. If Lessor gives its consent,
Lessee will furnish Lessor with a key and Lessor retains the right to charge
Lessee for restoring any altered doors to their condition prior to the
installation of the new or additional locks.
18. Abandonment
18.01 Lessee will not or abandon the Premises at any time during the Lease
Term or permit the Premises to remain unoccupied for a period longer than
fifteen (15) consecutive days during the Lease Term. If Xxxxxx abandons, or
surrenders the Premises, or is dispossessed by process of law, or otherwise, any
personal property belonging to Xxxxxx left in or about the Premises will, at the
option of Lessor be deemed abandoned and may be disposed of by Lessor in the
manner provided for by the laws of the state in which the Premises are located.
19. Destruction
19.01 Should the Premises or the building on the Premises be partially
destroyed by any cause not the fault of Lessee (or any person in or about the
Premises with the consent, expressed or implied, of Lessee), this Lease will
continue in full force and effect and Lessor, at Lessor's own cost and expense,
will promptly commence the work of repairing and restoring the Premises to their
prior condition providing that the work can be accomplished under all applicable
government laws and regulations within sixty (60) working days from the date of
damage at a cost not exceeding twenty-five percent (25%) of the total
replacement cost of the Premises. Within thirty (30) days of the occurrence of
partial destruction, Lessor may terminate this Lease as of the date of the
occurrence if nine (9) months or less remain in the Lease Term.
19.02 Should the Premises or the building in which the Premises are a part
be so far destroyed by any cause not the fault of Lessee (or any person in or
about the Premises with the consent, expressed or implied, of Lessee) that they
cannot be repaired or restored to their former condition within sixty (60) days
of the date of damage or at a cost exceeding twenty-five percent (25%) of the
total replacement cost of the Premises, Lessor may at Lessor's options either:
A. Continue this Lease in full force and effect by repairing and
restoring, at Xxxxxx's own cost and expense, the Premises to their former
condition; or
B. Terminate this Lease by giving Xxxxxx written notice of such
termination.
19.03 Should the Premises be partially or totally destroyed by any cause
of Lessee, or any person in or about the Premises with the consent, expressed or
implied, of Lessee, this Lease will remain in full force and effect and Xxxxxx
shall immediately commence work to repair the damage and diligenty pursue its
completion.
19.04 Any insurance proceeds received by Lessor because of the total or
partial destruction of the Premises or the building on the Premises will be the
sole property of Lessor, free from any claims of Lessee, and may be used by
Lessor for whatever purposes Lessor may desire.
19.05 Should Lessor elect to repair and restore the Premises to their
former condition, or should Lessor be required to restore the Premises to their
former condition, there will be a proportional abatement in the amount of rent
payable during the period of repair and restoration as long as Lessee (or any
person in or about the Premises with the consent, expressed or implied, of
Lessee) is not the cause of the total or partial destruction. The rent due under
the terms of the Lease will be reduced between the date of destruction and the
date of completion of restoration and repairs based on the extent to which
destruction interferes with Xxxxxx's use of the Premises.
-7-
20. Assignment, Subletting and Transfers of Ownership
20.01 Lessee will not directly or indirectly, voluntarily or by operation
of law, assign, sell, mortgage, encumber, convey, or otherwise Transfer all or
any part of Lessee's Leasehold estate, or permit the Premises to be occupied by
anyone other than Lessee and Xxxxxx's employees or sublet the Premises or any
portion thereof (collectively called "Transfer") without Lessor's prior written
consent. If Lessee desires at any time to Transfer this Lease, Lessee shall
first give written notice to Lessor of its desire to do so, which notice shall
contain (a) the identity of the proposed Transferee, (b) the terms and
provisions of the proposed Transfer, (c) the nature of the proposed Transferee's
business to be carried on in the Premises, (d) a detailed summary of the
business background and financial condition of the proposed Transferee, and (e)
such financial information as deemed necessary by Lessor to evaluate any
proposed Transfer. All of the foregoing information shall be provided to Lessor
by Xxxxxx at least sixty (60) days in advance of Xxxxxx's proposed Transfer
date.
20.02 Lessor will not unreasonably withhold its consent to any proposed
Transfer except that such consent need not be granted if: (a) in the reasonable
judgment of Lessor the Transferee is of a character or is engaged in a business
which is not in keeping with the standards of the Lessor for the Project; (b) in
the reasonable judgment of Lessor any purpose for which the Transferee intends
to use the Premises is not in keeping with the standards of Lessor for the
Project; provided in no event may any purpose for which Transferee intends to
use the Premises be in violation of this Lease; (c) the portion of the Premises
subject to the Transfer is not regular in shape with appropriate means of
entering and exiting, including adherence to any local, county or other
governmental codes, or is not otherwise suitable for the normal purposes
associated with such a Transfer; (d) the proposed Transferee be at least as
financially responsible as Lessee was expected to be at the time of the
execution of this Lease or (e) Tenant is in default under this Lease, (1) see
below.
20.03 In the event Lessor consents to a Transfer, Lessee will pay Lessor
the excess, if any, of the rent and other charges reserved in the Transfer over
the allocable portion of the rent and other charges hereunder for that portion
of the Premises subject to the Transfer. For the purpose of this section, the
rent reserved in the Transfer will be deemed to include any lump sum payment or
other consideration given to Lessee in consideration for the Transfer. Lessee
will pay or cause the Transferee to pay to Lessor this additional rent together
with the monthly installments of rent due.
20.04 Any consent to any Transfer which may be given by Lessor, or the
acceptance of any rent, charges or other consideration by Lessor from Lessee or
any third party, will not constitute a waiver by Lessor of the provisions of
this Lease or a release of Lessee from the full performance by it or the
covenants stated herein; and any consent given by Lessor to any Transfer will
not relieve Lessee (or any transferee of Lessee) from the above requirements for
obtaining the written consent of Lessor to any subsequent Transfer.
20.05 If a default under this Lease should occur while the Premises or any
part of the Premises are assigned, sublet or otherwise transferred, Lessor, in
addition to any other remedies provided for within this Lease or by law, may at
its option collect directly from the Transferee all rent or other consideration
becoming due to Lessee under the Transfer and apply these monies against any
sums due to Lessor by Lessee; and Xxxxxx authorizes and directs any Transferee
to make payments of rent or other consideration direct to Lessor upon receipt of
notice from Lessor. No direct collection by Lessor from any Transferee should be
construed to constitute a novation or a release of Lessee or any guarantor of
Lessee from the further performance of its obligations in connection with this
Lease.
20.06 Any Transfer without the Lessor's consent shall be void and shall,
at the option of Lessor, terminate this Lease.
20.07 If Lessee requests a consent of Lessor to any Transfer, then Lessee
shall, upon demand, pay Lessor an administrative fee of One Hundred Fifty
Dollars ($150.00) plus any attorneys' fees reasonably incurred by Lessor in
connection with such request.
21. Breach By Lessee
21.01 Lessee will be in breach of this Lease if at any time during the
term of this Lease (and regardless of the pendency of any bankruptcy,
organization, receivership, insolvency or other proceedings in law, in equity or
before any administrative tribunal which have or might have the effect of
preventing Lessee from complying with the terms of this Lease):
X. Xxxxxx fails to make payment of any installment of Base Monthly Rent,
Additional Rent, or of any other sum herein specified to be paid by Xxxxxx, and
such failure is not cured within three (3) days after Lessor's written notice to
Lessee of such failure of payment, which notice shall be in lieu of and not in
addition to any notice required by statute; or
B. Lessee fails to observe or perform any of its other covenants,
agreements or obligations hereunder, and such failure is not cured within ten
(10) days after Lessor's written notice to Lessee of such failure, which notice
shall be in lieu of and not in addition to any notice required by statute
provided, however, that if the nature of Lessee's obligation is such that more
than ten (10) days are required for performance, then Lessee will not be in
breach if Lessee commences performance within such ten (10) day period and
thereafter diligently prosecutes the same to completion; or
(1) BEYOND NOTICE AND THE EXPIRATION OF ANY APPLICABLE CURE PERIOD.
-8-
C. Lessee becomes insolvent, makes a transfer in fraud of its creditors,
makes a transfer for the benefit of its creditors, voluntarily files for
bankruptcy, is adjudged bankrupt or insolvent in proceedings filed against
Lessee, a receiver, trustee, or custodian is appointed for all or substantially
all of Xxxxxx's assets, fails to pay its debts as they become due, convenes a
meeting of all or a portion of its creditors, or performs any acts of bankruptcy
or insolvency, including the selling of its assets to pay creditors, or
indicates a general inability to pay its obligations hereunder; or
X. Xxxxxx has abandoned the Premises as defined in section 18 above.
22. Remedies of Lessor
22.01 Termination of Lease After Breach: If Lessee breaches this Lease and
abandons the Premises before the end of the term, or if its right to possession
is terminated by Lessor because of Xxxxxx's breach of this Lease, then this
Lease may be terminated by Lessor at its option. On such termination Lessor may
recover from Lessee, in addition to the remedies permitted by law:
A. The worth at the time of award of the unpaid rents which had been
earned at the time of termination;
B. The worth at the time of award of the amount by which the unpaid rents
which would have been earned after termination until the time of award exceeds
the amount of such rental loss that Lessee proves could have been reasonably
avoided;
C. The worth at the time of award of the amount by which the unpaid rents
for the balance of the Lease Term after the time of award exceeds the amount of
such rental loss for such period that Xxxxxx proves could be reasonably avoided;
and
D. Any other amount necessary to compensate Lessor for all the damage
proximately caused by Xxxxxx's breach of its obligations under this Lease, or
which in the ordinary course of events would be likely to result therefrom. The
damage proximately caused by Xxxxxx's breach will include, without limitation,
(i) expenses for cleaning, repairing or restoring the Premises, (ii) expenses
for altering, remodeling or otherwise improving the Premises for the purpose of
reletting, (iii) brokers' fees and commissions, advertising costs and other
expenses of reletting the Premises, (iv) costs of carrying the Premises such as
taxes, insurance premiums, utilities and security precautions, (v) expenses in
retaking possession of the Premises, (vi) attorneys' fees and court costs, (vii)
any unearned brokerage commissions paid in connection with this Lease and (viii)
reimbursement of any previously waived Base Rent or Additional Rent.
22.02 Continuation of Lease After Breach: Notwithstanding the foregoing,
in the event Lessee has breached this Lease and abandoned the Premises, this
Lease, at Lessor's option, will continue in full force and effect so long as
Lessor does not terminate Lessees' right to possession of the Premises, and in
such event Lessor may enforce all of its rights and remedies under this Lease,
including the right to recover rent as it becomes due. For purposes of this
subsection 22.03, the following acts by Lessor will not constitute the
termination of Xxxxxx's right to possession of the premises:
A. Acts of maintenance or preservation or efforts to relet the Premises,
including, but not limited to, alterations, remodeling, redecorating, repairs,
replacements and/or painting as Lessor shall consider advisable for the purpose
of reletting the Premises or any part thereof; or
B. The appointment of a receiver upon the initiative of Lessor to protect
Xxxxxx's interest under this Lease or in the Premises.
22.03 In the event of bankruptcy, Lessee assigns to Lessor all its rights,
title and interest in the Premises as security for its obligations and covenants
set forth in this Lease.
22.04 Definitions and Incidental Rights
A. The "worth at the time of award" of the amounts referred to in
subsection 22.01A, and subsection 22.01B, will be computed by allowing interest
at the rate of ten percent (10%) per annum, The "worth at the time of award" of
the amount referred to above in subsection 22.01C will be computed by
discounting the amount at the discount rate of the Federal Reserve Bank of San
Francisco in effect at the time of award, plus one percent (1%).
B. Any efforts by Lessor to lessen the damages caused by Xxxxxx's breach
of this Lease will not waive Lessor's right to recover the damages set forth
above.
C. Nothing herein will be construed to affect other provisions of this
Lease regarding Xxxxxx's right to indemnification from Lessee for liability
arising prior to the termination of this Lease for personal injuries or property
damage.
-9-
D. No right or remedy conferred upon or reserved to Lessor in this Lease
is intended to be exclusive of any other right or remedy granted to Lessor by
statute or common law, and each and every such right and remedy will be
cumulative.
23. Surrender of Lease Not Merger
23.01 The voluntary or other surrender of this Lease by Xxxxxx, or a
mutual cancellation thereof, will not work a merger and will, at the option of
Lessor, terminate all or any existing transfers, or may, at the option of
Lessor, operate as an assignment to it of any or all of such transfers.
24. Attorneys Fees / Collection Charges
24.01 In the event of any legal action or proceeding between the parties
hereto, actual attorneys' fees and expenses of the prevailing party in any such
action or proceeding will be added to the judgment therein. Should Lessor be
named as defendant in any suit brought against Xxxxxx in connection with or
arising out of Xxxxxx's occupancy hereunder, Lessee will pay to Lessor its costs
and expenses incurred in such suit, including actual attorneys' fees.
24.02 If Lessor utilizes the services of any attorney at law for the
purpose of collecting any rent due and unpaid by Xxxxxx after three (3) days'
written notice to Lessee of such nonpayment of rent or in connection with any
other breach of this Lease by Xxxxxx, Xxxxxx agrees to pay Lessor actual
attorneys' fees as determined by Lessor for such services, regardless of the
fact that no legal action may be commenced or filed by Lessor.
25. Condemnation
25.01 If twenty-five percent (25%) or more of the Premises is taken for
any public or quasi-public purpose by any lawful government power or authority,
by exercise of the right of appropriation, reverse condemnation, condemnation or
eminent domain, or sold to prevent such taking, the Lessee or the Lessor may at
its option terminate this Lease as of the effective date thereof. Lessee will
not because of such taking assert any claim against the Lessor or the taking
authority for any compensation because of such taking, and Lessor will be
entitled to receive the entire amount of any award without deduction for any
estate of interest of Xxxxxx. If less than twenty-five percent (25%) of the
Premises is taken, Lessor at its option may terminate this Lease. If Lessor does
not so elect, Lessor will promptly proceed to restore the Premises to
substantially its same condition prior to such partial taking, allowing for any
reasonable effects of such taking, and a proportionate allowance will be made to
Lessee for the rent corresponding to the time during which, and to the part of
the Premises which, Lessee is deprived on account of such taking and
restoration.
26. Rules and Regulations
26.01 Lessee will faithfully observe and comply with the Rules and
Regulations printed on or attached to this Lease and Lessor reserves the right
to modify and amend them as it deems necessary. Lessor will not be responsible
to Lessee for the nonperformance by any other lessee or occupant of the Project
of any of said Rules and Regulations.
26.02 Violation of any such Rules and Regulations shall be deemed a
material breach of the Lease by Xxxxxx.
27. Estoppel Certificate
27.01 Lessee will execute and deliver to Lessor, within ten (10) days of
receiving written notice, a statement in writing certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modification) and the date to which rent and other charges are paid in
advance, if any, and acknowledging that there are not, to Xxxxxx's knowledge,
any uncured defaults on the part of Lessor hereunder or specifying such defaults
if they are claimed. Any such statement may be conclusively relied upon by any
prospective purchaser or encumbrancer of the Premises. Lessee's failure to
deliver such statement within such time shall be conclusive upon Lessee that (1)
this Lease is in full force and effect, without modification except as may be
represented by Lessor; (2) there are no uncured defaults in Lessor's
performance; and (3) no than one (1) month's rent has been paid in advance./(1)/
Initial: X.X.
------------
28. Sale By Lessor
28.01 In the event of a sale or conveyance by Lessor of the Project the
same shall operate to release Lessor from any liability upon any of the
covenants or conditions, expressed or implied, herein contained in favor of
Xxxxxx, and in such event Xxxxxx agrees to look solely to the responsibility of
the successor in interest of Xxxxxx in and to this Lease. This Lease will not be
affected by any such sale, and Xxxxxx agrees to attorn to the purchaser or
assignee.
Initial: X.X.
------------
(1) SECTION 27.02 CONTINUED ON ADDENDUM I.
-10-
29. Notices
29.01 All notices, statements, demands, requests, consents, approvals,
authorizations, offers, agreements, appointments or designations under this
Lease by either party to the other will be in writing and will be considered
sufficiently given and served upon the other party if sent by certified mail,
return receipt requested, postage prepaid, and addressed as indicated in
subsection 1.03 and subsection 1.04.
30. Waiver
30.01 The failure of Lessor to insist in any one or more cases upon the
strict performance of any term, covenant or condition of this Lease will not be
construed as a waiver of a subsequent breach of the same or any other covenant,
term or condition; nor shall any delay or omission by Lessor to seek a remedy
for any breach of this Lease be deemed a waiver by Lessor of its remedies or
rights with respect to such a breach.
31. Lessee's Intent, Holding Over
31.01 Lessee will give Lessor, ninety (90) days prior to the expiration of
the Lease Term, written notification of Xxxxxx's intent to either remain in or
vacate the Premises on the Lease Expiration Date. If Lessee does not notify
Lessor by the date specified herein, Lessor deems that Lessee will vacate the
Premises by the Lease Expiration Date and Lessor will have no further
obligation.
31.02 Any holding over after the expiration or termination of the term of
this Lease, or after any notice given by Lessor to Lessee terminating this
Lease, such possession by Xxxxxx will be deemed to be a month-to-month tenancy
terminable on thirty (30) day notice at any time by either party. All provisions
of this Lease, except those pertaining to term and rent, will apply to the
month-to-month tenancy. Lessee will pay Base Monthly Rent in an amount equal to
150% of rent for the last full calendar month during the regular term.
32. Project Plan
32.01 In the event Lessor requires the Premises for use in conjunction
with another suite or for other reasons connected with the Project planning
program, Lessor, upon notifying Lessee in writing, shall have the right to move
Lessee to space in the Project of which the Premises forms a part, at Lessor's
sole cost and expense (excluding private telephone systems which Lessee must
bear the cost of moving and installing), and the terms and conditions of the
original Lease will remain in full force and effect excepting that the Premises
will be in a new location. However if the new space does not meet with Xxxxxx's
approval, Lessee will have the right to cancel this Lease upon giving Lessor
thirty (30) days' notice within ten (10) days of receipt of Lessor's
notification. Should Lessee elect to cancel the Lease as provided in this
paragraph, the effective expiration date will equal the projected move-in date
of the suite Lessor wishes Lessee to move to as indicated in Lessor's written
notification to Xxxxxx.
33. Default of Lessor / Limitation of Liability
33.01 In the event of any default by Lessor hereunder, Xxxxxx agrees to
give notice of such default, by registered mail, to Lessor at Lessor's Notice
Address as stated in subsection 1.04 and to offer Lessor a reasonable
opportunity to cure the default.
33.02 In the event of any actual or alleged failure, breach or default
hereunder by Xxxxxx, Xxxxxx's sole and exclusive remedy will be against Xxxxxx's
interest in the Project, and no partner of Lessor will be sued, be subject to
service of process, or have a judgment obtained against him in connection with
any alleged breach or default, and no writ of execution will be levied against
the assets of any partner of Lessor. The covenants and agreements are
enforceable by Xxxxxx and also by any partner of Xxxxxx.
34. Release of Partners of Lessor
34.01 lf Lessee has any claim against Lessor under or arising out of this
Lease, Xxxxxx's sole recourse shall be against the assets of Lessor and Xxxxxx
further waives any and all right to assert any claim against, or obtain any
damages from, the partners, employees, officers, directors or agents of Lessor.
35. Expansion Clause
35.01 If during the Lease Term, Xxxxxx executes a lease within the Project
for space larger than the present Premises with a lease term at least equal to
that which remains on this Lease or one (1) year, whichever is greater, with a
Base Monthly Rent amount at least equal to the present Base Monthly Rent of this
Lease, this Lease shall be terminated upon the commencement date of the lease
for such substitute space. Notwithstanding the above-stated, Xxxxxx shall remain
obligated to pay for any adjustments in rent pursuant to sections 3, 4 and 5 due
Lessor as a result of Xxxxxx's tenancy hereunder and this obligation shall
survive the termination of this Lease pursuant to this section 35.
Initial: X.X
---------
-11-
36. Subordination
36.01 Without the necessity of any additional document being executed by
Xxxxxx for the purpose of effecting a subordination, and at the election of
Lessor or any mortgagee with a lien on the Project or any ground lessor with
respect to the Project, this Lease will be subject and subordinate at all time
to (a) all ground leases or underlying leases which may now exist or hereafter
be executed affecting the Project, and (b) the lien of any mortgage or deed of
trust which may now exist or hereafter be executed in any amount for which the
Project, ground leases or underlying leases, or Lessor's interest or estate in
any of said items is specified as security. 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,
Lessee will, notwithstanding any subordination, attorn to and become the Lessee
of the successor in interest to Lessor, at the option of such successor in
interest. Lessee covenants and agrees to execute and deliver upon demand by
Xxxxxx and in the form requested by Xxxxxx any additional documents evidencing
the priority or subordination of this Lease with respect to any such ground
lease or underlying leases or the lien of any such mortgage or deed of trust.
Lessee hereby irrevocably appoints Lessor as attorney-in-fact of Xxxxxx to
execute, deliver and record any such document in the name and on behalf of
Xxxxxx. /(1)/
37. Miscellaneous Provisions
37.01 Whenever the singular number is used in this Lease and when required
by the context, the same will include the plural, and the masculine gender will
include the feminine and neuter genders, and the word "person" will include
corporation, firm, partnership, or association. If there be more than one
Xxxxxx, the obligations imposed upon Lessee under this Lease will be joint and
several.
37.02 The headings or titles to paragraphs of this Lease are not a part of
this Lease and will have no effect upon the construction or interpretation of
any part of this Lease.
37.03 This instrument contains all of the agreements and conditions made
between the parties to this Lease and may not be modified orally or in any other
manner than by an agreement in writing signed by all parties to this Lease.
Xxxxxx acknowledges that neither Lessor nor Lessor's agents have made any
representation or warranty as to the suitability of the Premises to the conduct
of Xxxxxx's business. Any agreements, warranties or representations not
expressly contained herein will in no way bind either Lessor or Lessee, and
Lessor and Lessee expressly waive all claims for damages by reason of any
statement, representation, warranty, promise or agreement, if any, not contained
in this Lease.
37.04 Time is of the essence of each term and provision of this Lease.
37.05 Except as otherwise expressly stated, each payment required to be
made by Xxxxxx is in addition to and not in substitution for other payments to
be made by Lessee.
37.06 Subject to section 20, the terms and provisions of this Lease are
binding upon and inure to the benefit of the heirs, executors, administrators,
successors and assigns of Xxxxxx and Xxxxxx.
37.07 All covenants and agreements to be performed by Lessee under any of
the terms of this Lease will be performed by Xxxxxx at Xxxxxx's sole cost and
expense and without any abatement of rent.
37.08 In consideration of Xxxxxx's covenants and agreements hereunder,
Lessee hereby covenants and agrees not to disclose any terms, covenants or
conditions of this Lease to any other party without the prior written consent of
Xxxxxx.
38. Deposit Agreement
38.01 Lessor and Xxxxxx hereby agree that Lessor will be entitled to
immediately endorse and cash Lessee's good faith rent and the Security Deposit
check(s) accompanying this Lease. It is further agreed and understood that such
action will not guarantee acceptance of this Lease by Xxxxxx, but, in the event
Lessor does not accept this Lease, such deposits will be refunded in full to
Lessee. This Lease will be effective only after Xxxxxx has received a copy fully
executed by Xxxxxx.
39. Governing Law
39.01 This Lease is governed by and construed in accordance with the laws
of the state in which the Premises are located, and venue of any suit will be in
the county where the Premises are located.
40. Severability
40.01 If any provision of this Lease is found to be unenforceable, all
other provisions shall remain in full force and effect.
(1) SECTION 36.02 CONTINUED ON ADDENDUM I.
Initial: X.X.
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-12-
41. Landlord's Lien
41.01 LESSOR HEREUNDER WILL HAVE THE BENEFIT OF, AND THE RIGHT TO, ANY AND
ALL LANDLORD'S LIENS PROVIDED UNDER THE LAW BY WHICH THIS LEASE IS GOVERNED.
42. Special Provisions
42.01 Special provisions of this Lease number 43 through * are attached
---
hereto and made a part hereof. If none, so state in the following space:
* see attached
------------------------------------
IN WITNESS WHEREOF, Xxxxxx and Xxxxxx have executed this Lease as of the day
and year indicated by Xxxxxx's execution date as written below.
Individuals signing on behalf of a Lessee warrant that they have the
authority to bind their principals. In the event that Lessee is a corporation,
Xxxxxx shall deliver to Lessor, concurrently with the execution and delivery of
this Lease, a certified copy of corporate resolutions adopted by Lessee
authorizing said corporation to enter into and perform the Lease and authorizing
the execution and delivery of the Lease on behalf of the corporation by the
parties executing and delivering this Lease. THIS LEASE, WHETHER OR NOT EXECUTED
BY XXXXXX, IS SUBJECT TO ACCEPTANCE BY XXXXXX, ACT1NG ITSELF OR BY ITS AGENT
ACTING THROUGH ITS PRES1DENT AND VICE PRES1DENT AT ITS HOME OFFICE.
AND REGIONAL MANAGER
LESSOR Public storage Properties XVIII, Inc LESSEE Copper Mountain
Communications, Inc.,
A California Corporation A California Corporation
________________________________________ ___________________________________
BY: PS COMMERCIAL PROPERTIES GROUP, INC.
AGENT FOR OWNER
By: /s/ Xxxxxxxx Xxxxxx-Regional Manager By: /s/ Xxx Xxxxxx - President
-------------------------------------- --------------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
XXXXXXXX XXXXXX - REGIONAL MANAGER XXX XXXXXX - PRESIDENT
----------------------------------------- -----------------------------------
Title Title
Date 6-26-96 Date 6/4/96
------------------------------------- -------------------------------
EXECUTION DATE
By_______________________________________ By_________________________________
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
_________________________________________ ___________________________________
Title Title
Date_____________________________________ Date_______________________________
ExecutioN Date
-13-
SPECIAL PROVISIONS
to Standard Industrial Lease
---------------------------------
(insert title of lease)
Dated May 31 19 96
----------, --
by and between
Public Storage Properties XVIII, Inc., A California ("Lessor")
--------------------------------------------------------
Corporation
and Copper Mountain Communications, Inc., A California ("Lessee")
--------------------------------------------------------
Corporation
43. HAZARDOUS MATERIALS
--
43.01 Compliance with Law.
-- -------------------
Lessee, at Lessee's expense, shall comply with all laws, rules,
orders, ordinances, directions, regulations and requirements of federal, state,
county and municipal authorities pertaining to Lessee's use of the Premises and
with the recorded covenants, conditions and restrictions, regardless of when
they become effective, including, without limitation, all applicable federal,
state, and local laws, regulations or ordinances pertaining to air and water
quality, Hazardous Materials (as hereinafter defined), waste disposal, air
emissions and other environmental matters, all zoning and other land use
matters, and utility availability, and with any direction of any public officer
or officers, pursuant to law, which shall impose any duty upon Lessor or Lessee
with respect to the use or occupation of the Premises.
43.02 Use of Hazardous Materials
-- --------------------------
(1) Lessee shall (1) not cause or permit any Hazardous Material to be
brought upon, kept or used in or about the Premises or the Project by Lessee,
its agents, employees, contractors or invitees without the prior written consent
of Lessor, which Lessor shall not unreasonably withhold as long as Lessee
demonstrates to Lessor's reasonable satisfaction that such Hazardous Material is
necessary or useful to Lessee's business and will be used, kept and stored in a
manner that complies with all laws regulating any such Hazardous Material so
brought upon or used or kept in or about the Premises. If Lessee breaches the
obligations stated in the preceding sentence, or if the presence of Hazardous
Material on the Premises or the Project caused or permitted by Lessee results in
contamination of the Premises or the Project, or if contamination of the
Premises or the Project by Hazardous Material otherwise occurs for which Lessee
is legally liable to Lessor for damage resulting therefrom, then Lessee shall
indemnify, defend and hold Lessor harmless from any and all claims, judgements,
damages, penalties, fines, costs, liabilities or losses (including, without
limitation, diminution in value of the Premises or the Project, damages for the
loss or restriction on use of rentable or usable space or of any amenity of the
Premises or the Project, damages arising from any adverse impact on marketing of
space, and sums paid in settlement of claims, attorneys' fees, consultant fees
and expert fees) which arise during or after the Lease term as a result of such
contamination.
This indemnification of Lessor by Lessee includes, without limitation, costs
incurred in connection with any investigation of site conditions or any clean-
up, remedial, removal or restoration work required by any federal, state or
local governmental agency or political subdivision because of Hazardous Material
present in the soil or ground water on or under the Premises or the Project.
Without limiting the foregoing, if the presence of any Hazardous Material on the
Premises or the Project caused or permitted by Lessee result in any
contamination of the Premises or the Project, Lessee shall promptly take all
actions at its sole expense as are necessary to return the Premises and the
Project to the condition existing prior to the introduction of any such
Hazardous Material to the Premises or the Project; provided that Lessor's
approval of such actions shall first be obtained, which approval shall not
unreasonably withheld so long as such actions would not potentially have any
material adverse long-term or short-term effect on the Premises or the Project.
The foregoing indemnity shall survive the expiration or earlier termination of
this Lease.
(2) Definition of "Hazardous Material". As used herein, the term "Hazardous
----------------------------------
Material" means any hazardous or toxic substance, material or waste, including,
but not limited to, those substances, materials or wastes listed in the United
States Department of Transportation Hazardous Material Table (49 CFR 172.101) or
by the Environmental Protection Agency as hazardous substances (40 CFR Part 302)
and amendments thereto, or such substances, materials and wastes that are or
become regulated under any applicable local, state or federal law.
(3) Disclosure. At the commencement of this Lease, and on January 1 of each
----------
year thereafter (each such date being hereafter called "Disclosure Dates"),
including January 1 of the year after the termination of this Lease, Lessee
shall disclose to Lessor the names and amounts of all Hazardous Materials, or
any combination thereof, which were stored, used or disposed of on or about the
Premises, or which Lessee intends to store, use or dispose of on or about the
Premises.
(4) Inspection. Lessor and its agents shall have the right, but not the
----------
duty, to inspect the Premises and the Project at any time to determine whether
Lessee is complying with the terms of this Lease. If Lessee is not incompliance
with this Lease, Lessor shall have the right to immediately enter upon the
Premises and the Project to remedy any contamination caused by Xxxxxx's failure
to comply notwithstanding any other provision of this Lease. Lessor shall use
its best efforts to minimize interference with Xxxxxx's business but shall not
be liable for any interference caused thereby.
(5) Default. Any default under this Paragraph shall be a material default
-------
enabling Lessor to exercise any of the remedies set forth in this Lease.
SPECIAL PROVISION
44 USE CLAUSE
Tenant has negotiated the use clause contained in section 1.05 of this
lease. Tenant hereby agrees that the use clause as so written is deemed to be
reasonable for all purposes. Tenant hereby further agrees that this use clause
is enforceable for all purposes and specifically waives all challenges to this
clause now and in the future. The purpose for which this use clause is deemed to
be reasonable and enforceable include, but are not limited to, any and all
future changes tenant may request in the use of the premises, and any and all
circumstances relating to breach of lease, and/or mitigation of damages, and/or
assignment, and/or subletting.
45 SMOKING
Smoking of any kind is strictly prohibited at all times at any
location on this property, except in the designated smoking area which is
located as follows:
Outside the perimeter of building only.
The designated smoking area may be relocated by Lessor at its sole discretion at
any time during the term of the lease.
SPECIAL PROVISION # 46
--------
Estimated Operating Costs and Property Taxes
Pursuant to Provision 5, "Additional Rent", of this Lease, Lessee shall pay to
Lessor on a monthly basis, in advance, in addition to Lessee's monthly base
rent, the amount of Lessee's Proportionate Share of Operating Cost and Property
Taxes as defined and calculated in accordance with the provisions of Section
5.02, "Operating Cost", and Section 5.03, "Taxes", under this Lease,
respectively. Lessee's initial Proportionate Share of Operating Costs and Real
Property Taxes are estimated by Lessor to be equal to Two thousand eighty-eight
-------------------------
and 03/100 dollars per month
-------------------------------------------------------------------------------
_______________________________________ ($ 2088.03 ).
* Operating Expenses capped at 10% each year.
SPECIAL PROVISION 47.00
-----
Tenant Financing: Subject to the terms and conditions of this lease as first
----------------
written above, Lessor agrees that Lessee shall have the right, at its
discretion, to mortgage, hypothecate or convey a security interest in Xxxxxx's
equipment and personal property within the Premises as security for its
obligations under any equipment lease or other financing arrangement related to
the conduct of Lessee's business, provided that such equipment and personal
property is not at any time attached to the Premises, and Lessor is not required
to execute any documentation or perform any act in connection therewith.
ADDENDUM I
This addendum is in conjunction with the Standard Industrial Lease dated June 4,
1996 by and between Public Storage Properties XVIII, Inc., A California
Corporation, Lessor and Copper Mountain Communications Inc. A California
Corporation, Lessee.
2.01 DEMISE AND POSSESSION
Upon delivery of premises Lessee has thirty (30) days to notify Lessor of
any malfunction or of any breakdown of the HVAC unit(s), excluding air balances,
which at all times shall be the sole responsibility of Lessee. Upon delivery of
the premises Lessee has three (3) days to notify Lessor of any burned out light
bulbs which Lessor will correct. Based on Xxxxxx's knowledge of the property
and Xxxxxx's understanding of the ADA as it may apply to the property, Lessor
has no knowledge of any current non-compliance with ADA requirements.
8.01 USE OF PREMISES; QUIET CONDUCT
Notwithstanding any of the foregoing, Lessee shall not be responsible for
making any structural changes to the Premises in order to bring the Premises
into compliance with any laws, codes, ordinances, orders or regulations, unless
(1) such structural changes are necessitated as a direct result of Lessee's
particular use of the Premises or (ii) the requirements for such changes are
triggered as a direct result of any action by Lessee or its agents, employees,
contractors or invitees on the Property.
13.05 FIRE INSURANCE; HAZARDS AND LIABILITY INSURANCE
Lessee and Lessor each hereby release and relieve the other, and waive
their entire right of recovery against the other for lose or damage arising out
of or incident to the perils insured against under paragraph 13, which perils
occur in on, or about the Premises, whether due to the negligence of Lessor or
Lessee or their agents, employees, contractors and /or invitees, Lessee and
Lessor shall upon obtaining the policies of insurance requires hereunder, give
notice to the insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this lease.
15.02 REPAIRS
Notwithstanding any of the foregoing, Lessee shall not be responsible for
making any structural changes to the Premises in order to bring the Premises
into compliance with any laws, codes, ordinances, orders or regulations, unless
(1) such structural changes are necessitated as a direct result of Lessee's
particular use of the Premises or (ii) the requirements for such changes are
triggered as a direct result of any action by Lessee or its agents, employees,
contractors or invitees on the Premises.
27.02 ESTOPPEL CERTIFICATE
Upon written request by Lessee to Lessor specifically referencing this
section 27.02, Lessor will within ten (10) days of receiving written notice
provide the same certificate required of Lessee under section 27.01. Lessor's
failure to deliver such statement within such time shall be conclusive upon
Lessor that (1) this Lease is in full force and effect, without modification
except as may be represented by Lessor (2) there are no uncured defaults in
Lessee's performance; and (3) not more than one (1) month's rent has been paid
in advance.
36.02 SUBROGATION
Upon written request by Lessee to Lessor specifically referencing this
section 36.02, Lessor will within ten (10) days of receiving written notice
request a non-disturbance statement from any lender. The cost of preparing and
executing any such document shall be paid by Xxxxxx and Lessor shall have no
obligation to do anything other than request such documentation and shall not
have any obligation or liability to Lessee or any other party if such
documentation cannot be obtained.
EXHIBIT A
[FLOORPLAN OF XXXX BOULEVARD APPEARS HERE]
--------------------------------------------------------------------------------
PS BUSINESS CENTER . SORRENTO MESA II
6540, 6640, 0000, XXXX XXXXXXXXX, XXX XXXXX, XX 00000
--------------------------------------------------------------------------------
Page 1 of 2
Project #01813/01819
SORRENTO MESA II/XXXX II
6540/6640/0000 Xxxx Xxxx.
San Diego, CA 92121
EXHIBIT A
LEGAL DESCRIPTION
LOTS 2 AND 3 OF LUSK INDUSTRIAL PARK UNIT NO. 5, IN THE CITY OF SAN DIEGO,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 10700,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 16, 1983.
EXCEPT THEREFROM ALL COAL, OIL, GAS, PETROLEUM AND OTHER HYDROCARBON SUBSTANCES
IN AND UNDER SUCH PROPERTY, GRANTOR, ITS SUCCESSORS AND ASSIGNS, RETAINING THE
EXCLUSIVE TITLE AND RIGHT TO REMOVE SAID SUBSTANCES, TOGETHER WITH SOLE RIGHT TO
NEGOTIATE AND CONCLUDE LEASES AND AGREEMENT WITH RESPECT TO ALL SUCH SUBSTANCES
UNDER THE PROPERTY, AND TO USE THOSE PORTIONS OF THE PROPERTY WHICH UNDERLIE A
PLANE PARALLEL TO, AND 500 FEET BELOW, THE PRESENT SURFACE OF THE PROPERTY FOR
THE PURPOSE OF PROSPECTING FOR, DEVELOPING AND/OR EXTRACTING SUCH SUBSTANCES
FROM THE PROPERTY BY MEANS OF XXXXX DRILLED INTO OR THROUGH SAID PORTIONS OF THE
PROPERTY FROM DRILL SITES LOCATED ON OTHER PROPERTY, IT BEING EXPRESSLY
UNDERSTOOD AND AGREED. THAT GRANTOR, ITS SUCCESSOR AND ASSIGNS SHALL HAVE NO
RIGHT TO ENTER UPON THE SURFACE OF THE PROPERTY OR ANY PORTION THEREOF ABOVE THE
LEVEL OF THE AFORESAID PLANE, AS RESERVED BY XXXX/MIRA MESA, A LIMITED
PARTNERSHIP, IN A DEED RECORDED FEBRUARY 18, 1984, RECORDER'S FILE NO. 84-
058807.
[FLOORPLAN APPEARS HERE]
PS BUSINESS CENTER - XXXX II
--------------------------------------------------------------------------------
0000 XXXX XXXXXXXXX
XXXXXXXX X XXXXX X000-X000
XXX XXXXX, XX 92121
4,382 R.S.F
APRIL 26, 96
N.T.S.
[FLOORPLAN APPEARS HERE]
PS BUSINESS CENTER XXXXXXXX XXXX ASSOCIATES
0000 XXXX XXXX., XXXXX X000 0000 XXXXXX XXX XXX X. #000
XXX XXXXX, XX 00000 452-9660 SAN DIEGO, CA 92108 624-0521
[FLOORPLAN APPEARS HERE]
PS BUSINESS CENTER - XXXX II
--------------------------------------------------------------------------------
0000 XXXX XXXXXXXXX
XXXXXXXX X XXXXX X000
XXX XXXXX, XX 00000
1,913 R.S.F
APRIL 26, 96
N.T.S.
[FLOORPLAN APPEARS HERE]
PS BUSINESS CENTER XXXXXXXX XXXX ASSOCIATES
0000 XXXX XXXX., XXXXX X000 0000 XXXXXX XXX XXX X. #000
XXX XXXXX, XX 00000 452-9660 SAN DIEGO, CA 92108 624-0521
[FLOORPLAN APPEARS HERE]
PS BUSINESS CENTER - XXXX II
--------------------------------------------------------------------------------
0000 XXXX XXXXXXXXX
XXXXXXXX X XXXXX X000
XXX XXXXX, XX 00000
1,824 R.S.F
APRIL 26, 96
N.T.S.
[FLOORPLAN APPEARS HERE]
PS BUSINESS CENTER XXXXXXXX XXXX ASSOCIATES
0000 XXXX XXXX., XXXXX X000 0000 XXXXXX XXX XXX X. #000
XXX XXXXX, XX 00000 452-9660 SAN DIEGO, CA 92108 624-0521
[FLOORPLAN APPEARS HERE]
PS BUSINESS CENTER - XXXX II
--------------------------------------------------------------------------------
0000 XXXX XXXXXXXXX
XXXXXXXX X XXXXX X000
XXX XXXXX, XX 00000
1,824 R.S.F.
APR1L 26, 96
N.T.S.
[FLOORPLAN APPEARS HERE]
PS BUSINESS CENTER XXXXXXXX XXXX ASSOCIATES
0000 XXXX XXXX., XXXXX X000 0000 XXXXXX XXX XXX X. #000
XXX XXXXX, XX 00000 452-9660 SAN DIEGO, CA 92108 624-0521
EXHIBIT "B"
----------
Lessee accepts premises in present condition.
Subject to the provisions of Article 9.01, Xxxxxx accepts the premises in the
condition they are in at the commencement of this lease and shall maintain said
premises in the same condition, order, and repair, excepting only reasonable
wear and tear, arising from the use under this Agreement. Xxxxxx has examined
and knows the condition of the leased premises and agrees that no
representation, except such as are contained herein, have been made to Lessee
respecting the condition of said premises. The taking possession of said
premises by Lessee shall be conclusive that the premises are in good and
satisfactory condition.
[FLOORPLAN APPEARS HERE]
TENANT SIGN CRITERIA:
Xxxx.Xxxxx:
Helvetica Medium Upper & Lower Case, if desired
Logo:
Optional - To be used in conjunction with approved type style
Materia1
Die-cut letters
Color:
Black for buildings not facing Xxxx Boulevard
White for buildings facing Xxxx Boulevard
Size:
Maximum: see illustration
Mounting Location:
To remain consistant with sign criteria for tenant signage
Note: No sign submittal will be considered if more than
40% of allowable sign area is utilized for positive copy
including all corporate logos. All sign requests must be
submitted on scaled drawings for written approval by
Xxxxxx.
----------------------------------------------------------------------------
For additional information please PS BUSINESS CENTER
contact the Property Manager located
in our Leasing Office.
----------------------------------------------------------------------------
EXHIBIT "C"
EXHIBIT "D"
-----------
RULES AND REGULATIONS
In order to promote the safety, cleanliness, and aesthetics of the business
park, the following rules and regulations are in effect which may be modified or
amended at any time by Lessor upon notice to Lessee. In the case of conflict
between these regulations and the Lease, the Lease shall be controlling.
1. Furniture, safes/moving. Safes, furniture, or bulky articles shall be
moved in and out of the complex in a manner and at such times so as not to
create an inconvenience to other tenants and is subject to direction and
approval of Lessor. Heavy articles that exceed the structural support of the
premises or exceeds fifty (50) pounds per square foot is not permitted. Any
heavy articles which exceeds load capacity of the elevator to transport it is
not permitted.
2. Windows/signs. All tenant identification signs shall be a type, size, and
color as specified by Lessor and provided at Xxxxxx's expense. No sign, picture,
or advertisement may be placed in the windows, common areas or exterior of the
building. Where Lessor provides standard window coverings, such coverings shall
not be altered, removed or replaced by Lessee. Where Lessor does not provide
standard window coverings, installation of window coverings by Lessee shall be
subject to Lessor's prior written approval.
3. Common area/roof. Sidewalks, common area hallways, stairwells, elevators,
entrances, and exits shall not be obstructed or used by Lessee for any purpose
other than normal ingress and egress. Neither Lessee nor employees or invitees
of Lessee shall go upon the roof of any building.
4. Parking. The parking areas include surface parking, parking structure,
driveways, entrances, exits, pedestrian walkways, and any other areas designated
for parking and shall be regulated and modified by Lessor with respect to
restricted areas, direction and flow of traffic, hours of use, and any other
related facilities. The parking areas shall be used solely for the parking of
passenger vehicles during normal business hours. The parking of trucks,
trailers, recreational vehicles, and campers is not permitted. No vehicle of any
type shall be stored in the parking areas at any time. In the event that a
vehicle is disabled it shall be removed within 48 hours. Maintenance of vehicles
is not permitted in the parking areas. All vehicles shall be parked in
designated parking areas in conformance with all signs and markings and shall
not be parked in areas not designated for parking, in aisles, driveways,
no-parking areas, or in any manner which impedes the flow of traffic. "For Sale"
signs or any other advertising is not permitted on or about any parked vehicle.
Lessor may implement a validation system or other proration with or without
charges to Lessee and/or other users for use of the parking area.
5. Vendors. Lessor reserves the right to prohibit personal goods and service
vendors from access to the building as are related to the safety, care, and
cleanliness of the building and the relief of any financial burden on Landlord
created by the presence of such vendors.
6. Advertising. Lessee shall not use the name of the building in connection
with promoting or advertising Xxxxxx's business except as to Lessees address.
Lessor shall have the right to prohibit the use of the name of the project or
other publicity by Xxxxxx which in Xxxxxx's opinion tends to impair the
reputation of the project or its desireablity for other Lessees. Lessee will
discontinue such publication immediately upon receipt of notice from Lessor.
7. Dangerous articles. Lessee shall not use or keep on the premises or any
part of the project any kerosene, gasoline, or inflammable or combustible fluid
or material or any article deemed extra hazardous.
Page 1 of 3
8. Nuisance. Lessee shall not keep or allow to be used any fowl or noxious gas
of substance on the premises. Nor shall Lessee occupy or use the premises in any
manner which is objectionable or offensive to other occupants by reason of odor,
noise, vibration, or interference, in any way with other tenants or those having
business therein. No animals or birds shall be brought in or kept about the
premises or any part of the project. Lessee shall maintain the leased premises
free of mice, ants, bugs, or other vermin.
9. Improper conduct. Lessor reserves the right to expel from the business park
any person who is intoxicated or under the influence of liquor or drugs or who
shall act in violation of any of these rules and regulations.
10. Janitorial service. Lessee shall not dispose any dirt or other substance
into the parking areas, landscaping, walkways, or common areas. Lessee shall not
do any act which would create additional costs to maintain the cleanliness of
the project. Lessor shall not be responsible to Lessee for loss of property on
the premises or for any damage done by the janitorial service, employee, or any
other person.
11. Building access. Lessee may have access to the building and premises
between the hours of 8:00 am and 6:00 pm Monday through Friday. Lessor reserves
the right to refuse access to the building in the case of invasion, riot, mob,
or other commotion for safety of the tenants and protection of property. Lessor
shall not be liable for damages for the admission or exclusion of any person
from the building. It Lessee uses the building after regular hours or on non-
business days, Lessee shall keep all entrance doors to the building locked
immediately after entering or leaving the building.
12. Heating/air conditioning. Lessor shall be under no obligation to provide
heating or air conditioning services to the building between the hours of 6:00
pm and 8:00 am and on non-business days. Lessee may request Lessor to provide
additional heating or air conditioning during off hours or non-business days and
should Lessor provide the additional service, Lessor may determine the costs
incurred which Lessee will pay to Lessor. Lessee shall not use any method of
heating or air conditioning other than supplied by Lessor.
13. Locks. Lessee shall not alter any lock or install new or additional lock or
bolt on any door of the premises without prior written consent of Lessor. If
Lessor shall give such consent, Lessee shall furnish a key to such lock. Upon
termination of the tenancy, Xxxxxx must return all keys of the premises to
Lessor.
14. Rest Rooms. The restrooms and facilities shall not be used for any purposes
other than those for which they were constructed. No dirt, trash, or other
foreign substances shall be disposed of therein. No person shall waste water or
tamper with faucets or fixtures. Any damage caused by Xxxxxx, his employees,
agents, or invitees shall be paid for by the Lessee.
15. Requirements of Lessee. Employees of Lessor shall not perform any work or
do anything outside of their regular duties unless under special instruction
from Lessor. Lessee shall give prompt, notice of required maintenance items, for
which Lessor is responsible within the leased premises. Lessee shall give Lessor
prompt notice of any defects in the water, sewage, gas pipes, exterior
electrical lights and fixtures, or other service equipment.
16. Solicitation. Lessee shall not disturb, solicit, or canvas any occupant of
the project and shall cooperate to prevent the same.
Page 2 of 3
17. Use of premises. The leased premises shall not be used for lodging,
sleeping, cooking, or for any immoral or illegal purpose or for any purpose
that will damage the premises or the reputation thereof. Lessee shall not use
the premises for any purpose other than that specified in the lease covering the
premises.
18. Safety. Lessee shall not do or permit any act or bring anything on the
premises which shall in any way increase rate of fire insurance on the building,
obstruct or interfere with, the right of other tenants, conflict with fire
regulations and fire laws, or conflict ordinances, established by the Board of
Health or other governmental authority.
19. Auction. No auction, public or private, will be permitted.
20. Damage. Walls, floors and ceilings shall not be defaced in any way and no
one shall be permitted to mark, paint, penetrate or in any way mar the building
surfaces, walkways, stairwells, driveways, or parking area. Pictures,
certificates, licenses, and similar items normally used in Lessee's premises
may be carefully attached to the walls by Lessee in a manner to be prescribed by
the Lessor. Upon removal of such items by Lessee, any damage to the walls or
other surfaces shall be repaired by Lessee.
21. Wiring. No electrical wiring, electrical apparatus, or additional outlets
shall be installed without the prior written approval of Lessor. Any such
installation may be removed by Lessor at Lessee's expenses. Lessee may not alter
any existing electrical outlets or overburden them beyond their designed
capacity. Lessor reserves the right to enter the leased premises, with
reasonable notice to tenant, for the purpose of installing additional electrical
wiring and other utilities for the benefit of Lessee or adjoining tenants.
Lessor will direct electricians as to where and how telephone and telegraph
wires are to be introduced. The location of telephones, call boxes, and other
equipment affixed to the premises shall be subject to the approval of Lessor.
22. Exterior. Lessee shall not place any improvement or moveable object
including antennas, awnings, outside furniture, etc. in the parking areas,
landscape areas, on the roof, or other areas outside of the leased premises.
23. General. It is understood that if Xxxxxx, his employees, agents, or
invitees violate any of these rules and regulations which results in any damage
to the property, increases costs of maintenance of the property, or incurs
expenses to reasonably enforce the rules and regulations, Lessee shall pay to
Lessor all such costs as additional rent.
Page 3 of 3
RULES AND REGULATIONS
FITNESS CENTER & CONFERENCE CENTER AGREEMENT
This supplemental agreement, dated June 4, 1996 is entered into between Public
Storage Properties XVIII, Inc., A California Corporation, hereinafter referred
to as "Lessor" and, Copper Mountain Communications, Inc., A California
Corporation, hereafter referred to as "Lessee" (which shall hereinafter refer to
and include, but not limited to, Lessee, Lessee's employees, and Lessee's
visitors) in this agreement. The Lessor and Lessee entered into a written lease,
referred to in this agreement as the "Lease", on June 8, 1996 for the Premises
located at 0000 Xxxx Xxxx., Xxxxx X000, X000, X000, B203, B204 San Diego, CA
92121
RULES AND REGULATIONS AS SET FORTH ARE PART OF THE LEASE AND LESSEE, ITS
EMPLOYEES AND VISITORS ARE OBLIGATED TO OBSERVE AND COMPLY WITH THE SAME. LESSOR
MAY MAKE REASONABLE CHANGES FROM TIME TO TIME WITHOUT PRIOR APPROVAL BY XXXXXX.
A portion of the Common Areas shall include a Fitness Center and Conference
Center, hereinafter referred to as "Centers". Use of the Centers shall be open
to Lessee during normal business hours, or such other hours as Lessor may
reasonably determine. Lessor will not provide any staff to monitor or supervise
the use of the Centers. Use of the Centers shall be solely at the risk of the
individual using the Centers facilities, and Lessor shall have no responsibility
for Lessee who shall use the Centers. In the event that Lessor suffers any loss
arising out of the use of the Centers by Xxxxxx, said Lessee shall indemnify
Lessor for any such loss. Xxxxxx agrees to abide by such reasonable rules and
regulations as Xxxxxx may promulgate from time to time concerning use of the
Centers. Lessor, at its sole discretion, shall have the right to revoke Lessee's
privileges should Lessee cause damage, abuse or violate any of the rules and
regulations in this agreement or posted within the Centers. Lessee shall also be
solely responsible to reimburse Lessor for any damage caused by Xxxxxx. Access
to the Centers shall be controlled by means selected by Lessor. The Fitness
Center's use is limited to Lessee and its employees only and may only be
accessed by Lessee's visitors when accompanied by Xxxxxx. Lessor shall have the
right to request, from time to time a list of Lessee's employees for the
purposes of controlling unauthorized access to the Centers. Lessee shall notify
Lessor when any of Lessee's employees terminate employment. Initial issuance of
keys or other devices for controlling access to the Centers shall be at no
charge to Lessee, but Lessor reserves the right to impose a reasonable charge to
replace, repair and/or maintain equipment, furniture, access devises or any
other furnishings pertinent to the Centers. Lessee is entitled to 9 Center
access cards and/or keys, if applicable.
In accordance with the paragraphs of your Lease referring to BASE MONTHLY RENT
and ADDITIONAL RENT, If Base Monthly Rent or any Additional Rent is not paid per
your Lease Agreement, Lessor, in its sole discretion, shall have the right to
suspend and/or revoke all Fitness and Conference Center privileges without
further notice and access will be terminated. If Xxxxxx's privileges are
suspended or revoked, Lessee shall still be obligated to pay their pro rata
share, and will receive no reduction or modification of common area maintenance
fees. Reinstatement of Fitness and Conference Center privileges, which is at all
times in the sole discretion of Lessor, may be requested in writing by any
suspended or revoked Lessee. In addition to any and all moneys due and owing
under the Lease, $25.00 per each person reinstated will be charged.
1. HOURS: Normal business hours for the Centers will be posted within the
Centers and shall be subject to reasonable change at the sole discretion of
Lessor. Should Lessee request use of the Center's anytime other than during
normal business hours, Lessor,
at its sole discretion, reserves the right to grant Xxxxxx's request and Xxxxxx
also reserves the right to charge Lessee $35.00 per hour for such use.
2. ACCESS: Lessee will be issued keys/, access card/s or access code/s, if
applicable, to the Fitness Center with the number to be determined by Lessor.
Lessee shall reserve in advance, on a first come first serve basis with Lessor,
the day and time they would like to reserve the Conference Center. Xxxxxx agrees
that use of their key, access card or code number by anyone other than to whom
it was issued could result in the Centers being closed to said Lessee and all
access keys, cards and codes confiscated. Lessor reserves the right to issue new
access keys, cards or codes.
3. USE OF CENTERS FACILITIES: In order to insure that the Centers are properly
maintained, Lessor reserves the right to temporarily close or limit access to
the Centers at any time during the year. Lessor may close the Centers on legal
holidays, open houses or other promotions. Xxxxxx acknowledges and agrees that
alcoholic beverages, illegal drugs, smoking and/or chewing tobacco is prohibited
in both Fitness and Conference Center's. Lessee is responsible for the disposal
of all food, trash and other items brought into or used within the Center and
Lessor shall not be responsible for the clean up during normal business hours.
4. FACILITY RULES: Lessee will, at all times, make sure that the doors to the
Fitness Center, Conference Center, Bathrooms and Showers remain closed while in
use. All users must provide their own towel and dry off before leaving the
shower area. Lockers are provided on a per visit basis and Lessor is not
responsible for lost, stolen or damaged items. Xxxxx left on lockers overnight
will be cut off and contents donated to charity or discarded. Xxxxxx
acknowledges and agrees that Lessor, its officers, agents and employees, will
not be liable for either loss or damage to Xxxxxx's property or personal
possessions within or on the Centers premises, including but not limited to the
parking facilities.
5. FITNESS CENTER: Lessee must carry a towel at all times while using the
equipment and/or machinery and will wipe clean all sweat after the use of
equipment and/or machinery. Any person using equipment or machinery shall be
familiar with the proper usage and operation prior to such use. It is the sole
duty of Lessee to check and confirm proper functioning of equipment and/or
machinery prior to any use; Lessor is not responsible for any malfunction,
disrepair, breakage, mis-use, or any claim of injury or loss therefrom. Xxxxxx
hereby agrees that they are voluntarily participating in physical exercise and
should use common sense, only the individual can monitor his or her own personal
physical feelings. Immediately stop any sports activity if you feel faint,
dizzy, nauscous, or short of breath. Lessor makes no warranties and no
representations express or implied, other than those set forth herein and Xxxxxx
acknowledges and agrees that they have not relied on any warranties or
representations other than those set in this Rules and Regulations. Lessee is
aware that participation in a sport or physical exercise may result in accidents
or injury, and Xxxxxx assumes the risk connected with the participation in a
sport or exercise represents that Lessee is in good health and suffers from no
physical impairment, disability or ailment preventing Lessee from safety,
comfort, or physical condition, or to that of others. It is advisable that
Lessee consult their physician before undertaking the use of fitness equipment
and/or machinery. Xxxxxx acknowledges that Lessor has not and will not render
any medical services including medical diagnosis of Lessee's physical
condition.
6. INDEMNIFICATION AND WAIVER OF CLAIMS: Lessee waives all claims against
Lessor for damage and/or loss to any real or personal property in or about the
Centers, Property, Project or Premises and for injury to any person, including,
but not limited to, death resulting therefrom, regardless of cause or time of
occurrence. Xxxxxx will defend, indemnify and hold Lessor harmless from and
against all claims, actions, proceedings, expenses, damages and
liabilities, including attorney's fees, arising out of, connected with, or
resulting from any use of the Centers, Property, Project and Premises including
and to any personal property in or about the Centers, Property, Project and
Premises by Xxxxxx, except for any damage or injury which is the direct result
of intentional acts by Lessor, its employees, agents visitors or licenses.
LESSOR LESSEE
Public Storage Properties XVIII Inc. Copper Mountain Communications
A California Corporation A California Corporation
___________________________________ _______________________________
By: Public Storage Commercial
Properties Group, Inc.
As Agent for Owner
By: /s/ Xxxxxxxx Xxxxxx By: /s/ Xxx Xxxxxx
---------------------------- ----------------------------
Xxxxxxxx Xxxxxx Xxx Xxxxxx
Title: Regional Manager Title: President
------------------------- -------------------------
Date: 6-26-96 Date: 6/4/96
-------------------------- --------------------------
By:____________________________
Title:_________________________
Date:__________________________
NOTE: Scheduling limitations for Corporate Conference Room
MAXIMUM HOURS per week/per tenant: 5 hours
MAXIMUM HOURS per month/per tenant: 20 hours
MAXIMUM DAY tenant may schedule in advance 30 days
Tenant may not schedule the same time consecutively throughout the month.
