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Exhibit 10.15
LEASE AGREEMENT
THIS LEASE, made this 25th day of November, 1996 between XXXX
XXXXXXXXX, Trustee, or his Successor Trustee, UTA dated 7/20/77 (ARRILLAGA
FAMILY TRUST) as amended, and XXXXXXX X. XXXXX, Trustee, or his Successor
Trustee, UTA dated 7/20/77 (XXXXXXX X. XXXXX SEPARATE PROPERTY TRUST) as
amended, hereinafter called Landlord, and VERSANT OBJECT TECHNOLOGY CORPORATION,
a California corporation, hereinafter called Tenant.
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby hires and takes from
Landlord those certain premises (the "Premises") outlined in red on Exhibit "A",
attached hereto and incorporated herein by this reference thereto more
particularly described as follows:
All of that certain 54,492+ square foot, one-story building to be
constructed by Landlord and to be located at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000 ("Building"). Said Premises and exclusive parking appurtenant
thereto are more particularly shown within the area outlined in Red on Exhibit A
attached hereto. The entire parcel, of which the Premises is a part, is shown
within the area outlined in Green on Exhibit A attached hereto. The interior of
the Building leased hereunder shall be constructed by Landlord as set forth in
the related Construction Agreement of even date herewith. The improved interior
configuration is shown in Red on Exhibit B to be attached hereto.
The word "Premises" as used throughout this lease is hereby defined to
include the nonexclusive use of landscaped areas, sidewalks and driveways in
front of or adjacent the Premises, and the nonexclusive use of the area directly
underneath or over such sidewalks and driveways. The gross leasable area of the
Building shall be measured from outside of exterior walls to outside of exterior
walls, and shall include any atriums, covered entrances or egresses and covered
loading areas.
Said letting and hiring is upon and subject to the terms, covenants and
conditions hereinafter set forth and Tenant covenants as a material part of the
consideration for this Lease to perform and observe each and all of said terms,
covenants and conditions. This Lease is made upon the conditions of such
performance and observance.
1. USE Tenant shall use the Premises only in conformance with applicable
governmental laws, regulations, rules and ordinances for the purpose of
general office, light manufacturing, research and development, and storage
and other uses necessary for Tenant to conduct Tenant's business, provided
that such uses shall be in accordance with all applicable governmental
laws and ordinances, and for no other purpose. Tenant shall not do or
permit to be done in or about the Premises nor bring or keep or permit to
be brought or kept in or
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about the Premises anything which is prohibited by or will in any way
increase the existing rate of (or otherwise affect) fire or any
insurance covering the Premises or any part thereof, or any of its
contents, or will cause a cancellation of any insurance covering the
Premises or any part thereof, or any of its contents. Tenant shall not
do or permit to be done anything in, on or about the Premises which
will in any way obstruct or interfere with the rights of other tenants
or occupants of the Premises or neighboring premises or injure or annoy
them, or use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises. No sale
by auction shall be permitted on the Premises. Tenant shall not place
any loads upon the floors, walls, or ceiling which endanger the
structure, or place any harmful fluids or other materials in the
drainage system of the building, or overload existing electrical or
other mechanical systems. No waste materials or refuse shall be dumped
upon or permitted to remain upon any part of the Premises or outside of
the building in which the Premises are a part, except in trash
containers placed inside exterior enclosures designated by Landlord for
that purpose or inside of the building proper where designated by
Landlord. No materials, supplies, equipment, finished products or
semifinished products, raw materials or articles of any nature shall be
stored upon or permitted to remain outside the Premises. Tenant shall
not place anything or allow anything to be placed near the glass of any
window, door partition or wall, which may appear unsightly from outside
the Premises. No loudspeaker or other device, system or apparatus which
can be heard outside the Premises shall be used in or at the Premises
without the prior written consent of Landlord. Tenant shall not commit
or suffer to be committed any waste in or upon the Premises. Tenant
shall indemnify, defend and hold Landlord harmless against any loss,
expense, damage, reasonable attorneys' fees, or liability arising out
of failure of Tenant to comply with any applicable law, governing
Tenant's use of the Premises. Tenant shall comply with any covenant,
condition, or restriction ("CC&R's") affecting the Premises. The
provisions of this paragraph are for the benefit of Landlord only and
shall not be construed to be for the benefit of any tenant or occupant
of the Premises.
2. TERM(1)
A. The term of this Lease shall be for a period of TEN (10) years
(unless sooner terminated as hereinafter provided) and,
subject to Paragraphs 2B and 3, shall commence on the 1st day
of June 1997 and end on the 31st day of May 2007.
B. Possession of the Premises shall be deemed tendered and the
term of the Lease shall commence when the first of the
following occurs:
(a) One day after Certificate of Occupancy is granted by
the proper governmental agency, or, if the
governmental agency having jurisdiction over the area
in which
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(1)It is agreed in the event said Lease commences on a date other than the first
day of the month the term of the Lease will be extended to account for the
number of days in the partial month. The Basic Rent during the resulting partial
month will be pro-rated (for the number of days in the partial month) at the
Basic Rent rate scheduled for the projected commencement date as shown in
Paragraph 39.
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the Premises are situated does not issue certificates
of occupancy, then the same number of days after
certification by Landlord's architect or contractor
that Landlord's construction work has been completed;
or
(b) Upon the occupancy of the Premises by any of Tenant's
or operating personnel; or
(c) When the Tenant Improvements have been substantially
completed for Tenant's use and occupancy, in
accordance and compliance with Exhibit B of this
Lease Agreement and the related Construction
Agreement; or
(d) As otherwise agreed in writing.
3. POSSESSION If Landlord, for any reason whatsoever, cannot deliver
possession of said premises to Tenant at the commencement of the said
term, as hereinbefore specified, this Lease shall not be void or
voidable; no obligation of Tenant shall be affected thereby; nor shall
Landlord or Landlord's agents be liable to Tenant for any loss or
damage resulting therefrom; but in that event the commencement and
termination dates of the Lease, and all other dates affected thereby
shall be revised to conform to the date of Landlord's delivery of
possession, as specified in Paragraph 2B, above. The above is, however,
subject to the provision that the period of delay of delivery of the
Premises shall not exceed 140 days from the commencement date herein
(except those delays caused by Acts of God, strikes, war, utilities,
governmental bodies, weather, unavailable materials, and delays beyond
Landlord's control shall be excluded in calculating such period) in
which instance Tenant, at its option, may by written notice to
Landlord, terminate this Lease.
4. RENT
A. Basic Rent. Tenant agrees to pay to Landlord at such place as
Landlord may designate without deduction, offset, prior
notice, or demand, and Landlord agrees to accept as Basic Rent
for the leased Premises the total sum of ELEVEN MILLION TWO
HUNDRED SEVENTY NINE THOUSAND EIGHT HUNDRED FORTY FOUR AND
NO/100 Dollars ($11,279.844.00) in lawful money of the United
States of America, payable as follows:
See Paragraph 39 for Basic Rent Schedule
B. Time for Payment. Full monthly rent is due in advance on the
first day of each calendar month. In the event that the term
of this Lease commences on a date other than the first day of
the calendar month, on the date of commencement of the term
hereof Tenant shall pay to Landlord as rent for the period
from such date of commencement to the first day of the next
succeeding calendar month that proportion of the monthly rent
hereunder which the number of days between such date of
commencement and the first day of the next succeeding calendar
month bears to thirty (30). In the event that the term of this
Lease for any reason ends on a date other than the last day of
a calendar month, on the first day of the last calendar month
of the term hereof Tenant shall pay to Landlord as rent for
the period from said first day of said last calendar month to
and including the last day of the term hereof that proportion
of the monthly rent hereunder which the number of days between
said first day of said last calendar month and the last day of
the term hereof bears to thirty (30).
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C. Late Charge. Notwithstanding any other provision of this
Lease, if Tenant is in default in the payment of rental as set
forth in this Paragraph 4 when due, or any part thereof,
Tenant agrees to pay Landlord, in addition to the delinquent
rental due, a late charge for each rental payment in default
ten (10) days. Said late charge shall equal ten percent (10%)
of each rental payment so in default.
D. Additional Rent. Beginning with the commencement date of the
term of this Lease, Tenant shall pay to Landlord or to
Landlord's designated agent in addition to the Basic Rent and
as Additional Rent the following:
(a) All Taxes relating to the Premises as set forth in
Paragraph 9, and
(b) All insurance premiums relating to the Premises, as
set forth in Paragraph 12, and
(c) All charges, costs and expenses, which Tenant is
required to pay hereunder, together with all interest
and penalties, costs and expenses including
reasonable attorneys' fees and legal expenses, that
may accrue thereto in the event of Tenant's failure
to pay such amounts, and all damages, reasonable
costs and expenses which Landlord may incur by reason
of default of Tenant or failure on Tenant's part to
comply with the terms of this Lease. In the event of
nonpayment by Tenant of Additional Rent, Landlord
shall have all the rights and remedies with respect
thereto as Landlord has for nonpayment of rent, and
(d) all prorated costs and expenses related to the
Ardenwood Property Owners' Associations as set forth
in Paragraph 49.
The additional Rent due hereunder shall be paid to
Landlord or Landlord's agent (i) within five days for taxes
and insurance and within thirty days for all other Additional
Rent items after presentation of invoice from Landlord or
Landlord's agent setting forth such Additional Rent and/or
(ii) at the option of Landlord, Tenant shall pay to Landlord
monthly, in advance, Tenant's prorated share of an amount
estimated by Landlord to be Landlord's approximate average
monthly expenditure for such Additional Rent items, which
estimated amount shall be reconciled within 120 days of the
end of each calendar year or more frequently if Landlord
elects to do so at Landlord's sole and absolute discretion, as
compared to Landlord's actual expenditure for said Additional
Rent items, with Tenant paying to Landlord, upon demand, any
amount of actual expenses expended by Landlord in excess of
said estimated amount, or Landlord refunding to Tenant
(providing Tenant is not in default in the performance of any
of the terms, covenants and conditions of this Lease) any
amount of estimated payments made by Tenant in excess of
Landlord's actual expenditures for said Additional Rent items.
Upon request, by Tenant, Landlord shall provide reasonable
detail supporting such invoices.
The respective obligations of Landlord and Tenant
under this paragraph shall survive the expiration or other
termination of the term of this Lease, and if the term hereof
shall expire or shall otherwise terminate on a day other than
the last day of a calendar year, the actual Additional Rent
incurred for the calendar year in which the term
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hereof expires or otherwise terminates shall be determined and
settled on the basis of the statement of actual Additional
Rent for such calendar year and shall be prorated in the
proportion which the number of days in such calendar year
preceding such expiration or termination bears to 365.
E. Fixed Management Fee. Beginning with the Commencement Date
of the Term of this Lease, Tenant shall pay to Landlord, in
addition to the Basic Rent and Additional Rent, a fixed
monthly management fee ("Management Fee") equal to 2% of the
Basic Rent due for each month during the Lease Term.
F. Place of Payment of Rent and Additional Rent. All Basic
Rent hereunder and all payments hereunder for Additional Rent
shall be paid to Landlord at the office of Landlord at
Xxxxx/Xxxxxxxxx, File 1504, box 60000, Xxx Xxxxxxxxx, XX
00000, or to such other person or to such other place as
Landlord may from time of time designate in writing.
* G. Security Deposit. Currently with Tenant's execution of
this Lease, Tenant shall deposit with Landlord the sum of TWO
HUNDRED TWELVE THOUSAND FIVE HUNDRED EIGHTEEN AND 80/100
Dollars ($212,518.80). Said sum shall be held by Landlord as a
Security Deposit for the faithful performance by Tenant of all
of the terms, covenants, and conditions of this Lease to be
kept and performed by Tenant during the term hereof. If Tenant
defaults with respect to any provision of this Lease,
including, but not limited to, the provisions relating to the
payment of rent and any of the monetary sums due herewith,
after passage of the applicable notice an cure period,
Landlord may (but shall not be required to) use, apply or
retain all or any part of this Security Deposit for the
payment of any other amount which Landlord may spend by reason
of Tenant's default or to compensate Landlord for any other
loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of said Deposit is so used or applied,
Tenant shall, within ten (10) days after written demand
therefor, deposit cash with Landlord in the amount sufficient
to restore the Security Deposit to its original amount.
Tenant's failure to do so shall be a material breach of this
Lease. Landlord shall not be required to keep this Security
Deposit separate from its general funds, and Tenant shall not
be entitled to interest on such Deposit. If Tenant fully and
faithfully performs every provision of this Lease to be
performed by it, the Security Deposit or any balance thereof
shall be returned to Tenant (or at Landlord's option, to the
last assignee of Tenant's interest hereunder) at the
expiration of the Lease term and after Tenant has vacated the
Premises. In the event of termination of Landlord's interest
in this Lease, Landlord shall transfer said Deposit to
Landlord's successor in interest whereupon Tenant agrees to
release Landlord from liability for the return of such Deposit
or the accounting therefor.
5. ACCEPTANCE AND SURRENDER OF PREMISES BY entry hereunder, Tenant accepts the
Premises as being in good and sanitary order, condition and repair and accepts
the building and improvements included in the Premises in their present
condition and without
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*$106,259.40 Cash due upon Lease execution.
$106,259.40 Promissory Note due June 1, 1998.
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representation or warranty by Landlord as to the condition of such building or
as to the use or occupancy which may be made thereof. Any exceptions to the
foregoing must be by written agreement executed by Landlord and Tenant. Tenant
agrees on the last day of the Lease term, or on the sooner termination of this
Lease, to surrender the Premises promptly and peaceably to Landlord in good
condition and repair (damage by Acts of God, fire, normal wear and tear
excepted), with all interior walls painted, or cleaned so that they appear
freshly painted, and repaired and replaced, if damaged; all floors cleaned and
waxed; all carpets cleaned and shampooed; all broken, marred or nonconforming
acoustical ceiling tiles replaced; all windows washed; the air-conditioning and
heating systems serviced by a reputable and licensed service firm and in good
operating condition and repair; the plumbing and electrical systems and lighting
in good order and repair, including replacement of any burned out or broken
light bulbs or ballasts; together with all alterations, additions, and
improvements which may have been made in, to, or on the Premises (except
moveable trade fixtures installed at the expense of Tenant) except that, subject
to Paragraph 6 below, Tenant shall ascertain from Landlord within thirty (30)
days before the end of the term of this Lease whether Landlord desires to have
the Premises or any part or parts thereof restored to their condition and
configuration as when the Premises were delivered to Tenant and if Landlord
shall so desire, then Tenant shall restore said Premises or such part or parts
thereof before the end of this Lease at Tenant's sole cost and expense, (which
written consent will specify whether Landlord shall require removal of said
alterations and/or additions), Tenant, on or before the end of the term or
sooner termination of this Lease, shall remove all of Tenant's personal property
and trade fixtures from the Premises, and all property not so removed on or
before the end of the term or sooner termination of this Lease shall be deemed
abandoned by Tenant and title to same shall thereupon pass to Landlord without
compensation to Tenant. Landlord may, upon termination of this Lease, remove all
moveable furniture and equipment so abandoned by Tenant, at Tenant's sole cost,
and repair any damage caused by such removal at Tenant's sole cost. If the
Premises be not surrendered at the end of the term or sooner termination of this
Lease, Tenant shall indemnify Landlord against loss or liability resulting from
the delay by Tenant in so surrendering the Premises including, without
limitation, any claims made by any succeeding tenant founded on such delay.
Nothing contained herein shall be construed as an extension of the term hereof
or as consent of Landlord to any holding over by Tenant. The voluntary or other
surrender of this Lease or the Premises by Tenant or a mutual cancellation of
this Lease shall not work as a merger and, at the option of Landlord, shall
either terminate all or any existing subleases or subtenancies or operate as an
assignment to Landlord of all or any such subleases or subtenancies.
6. ALTERATIONS AND ADDITIONS Tenant shall not make, or suffer to be made, any
alteration or addition to the Premises, or any part thereof, without the written
consent of Landlord first had and obtained by Tenant, (which written consent
will specify whether Landlord shall require removal of said alterations and/or
additions), (such consent not to be unreasonably withheld), but at the cost of
Tenant, and any addition to, or alteration of, the Premises, except moveable
furniture and trade fixtures, shall at once become a part of the Premises and
belong to Landlord. Landlord reserves the right to approve all contractors and
mechanics proposed by Tenant to make such alterations and additions. Tenant
shall retain title to all moveable furniture and trade fixtures placed in the
Premises. All heating, lighting, electrical, air-conditioning, floor to ceiling
partitioning, drapery, carpeting, and floor installations made by Tenant,
together with
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all property that has become an integral part of the Premises, shall not be
deemed trade fixtures. Tenant agrees that it will not proceed to make such
alteration or additions, without having obtained consent from Landlord to do so,
and until five (5) days from the receipt of such consent, in order that Landlord
may post appropriate notices to avoid any liability to contractors or material
suppliers for payment for Tenant's improvements. Tenant will at all times permit
such notices to be posted and to remain posted until the completion of work.
Tenant shall, if required by Landlord, secure at Tenant's own cost and expense,
a completion and lien indemnity bond, satisfactory to Landlord, for such work.
Tenant further covenants and agrees that any mechanic's lien filed against the
Premises for work claimed to have been done for, or materials claimed to have
been furnished to Tenant, will be discharged by Tenant, by bond or otherwise,
within ten (10) days after the filing thereof, at the cost and expense of
Tenant. Any exceptions to the foregoing must be made in writing and executed by
both Landlord and Tenant.
7. TENANT MAINTENANCE Tenant shall, at its sole cost and expense, keep and
maintain the Premises (including appurtenances) and every part thereof in a high
standard of maintenance and repair, or replacement, and in good and sanitary
condition. Tenant's maintenance and repair responsibilities herein referred to
include, but are not limited to, janitorization, all windows (interior and
exterior), window frames, plate glass and glazing (destroyed by accident or act
of third parties), truck doors, plumbing systems (such as water and drain lines,
sinks, toilets, faucets, drains, showers and water bulbs, tubes and fountains),
electrical systems (such as panels, conduits, outlets, lighting fixtures, lamps,
bulbs and ballasts), heating and air-conditioning systems (such as compressors
fans air handlers, ducts, mixing boxes, thermostats, time clocks, boilers,
heaters, supply and return grills), structural elements and exterior surfaces of
the building, store fronts, roofs, downspouts, all interior improvements within
the premises including but not limited to wall coverings, window coverings,
carpet, floor coverings, partitioning, ceilings, doors (both interior and
exterior), including closing mechanisms, latches, locks, skylights (if any),
automatic fire extinguishing systems, and elevators and all other interior
improvements of any nature whatsoever. Tenant agrees to provide carpet xxxxxxx
under all rolling chairs or to otherwise be responsible for wear and tear of the
carpet caused by such rolling chairs if such wear and tear exceeds that caused
by normal foot traffic in surrounding areas. Areas of excessive wear shall be
replaced at Tenant's sole expense upon Lease termination. Tenant hereby waives
all rights under, and benefits of, Subsection 1 of Section 1932 and 1941 and
1942 of the California Civil Code and under any similar law, statute or
ordinance now or hereafter in effect. In the event any of the above maintenance
responsibilities apply to any other tenant(s) of Landlord where there is common
usage with other tenant(s), such maintenance responsibilities and charges shall
be allocated to the leased Premises by square footage or other equitable basis
as calculated and determined by Landlord.
8. UTILITIES Tenant shall pay promptly, as the same become due, all charges for
water, gas, electricity, telephone, telex and other electronic communication
service, sewer service, waste pick-up and any other utilities, materials or
services furnished directly to or used by Tenant on or about the Premises during
the term of this Lease, including, without limitation, any temporary or
permanent utility surcharge or other exactions whether or not hereinafter
imposed. In the event the above charges apply to any other tenant(s) or Landlord
where there is common usage with
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other tenant(s), such charges shall be allocated to the leased Premises by
square footage or other equitable basis as calculated and determined by
Landlord.
Landlord shall not be liable for and Tenant shall not be entitled to
any abatement or reduction of rent by reason of any interruption or failure of
utility services to the Premises when such interruption or failure is caused by
accident, breakage, repair, strikes, lockouts, or other labor disturbances or
labor disputes of any nature, or by any other cause, similar or dissimilar,
beyond the reasonable control of Landlord.
9. TAXES
A. As Additional rent and in accordance with Paragraph 4D of this
Lease, Tenant shall pay to Landlord, or if Landlord so directs, directly to the
Tax Collector, all Real Property taxes relating to the Premises. In the event
the Premises leased hereunder consist of only a portion of the entire tax
parcel, Tenant shall pay to Landlord Tenant's proportionate share of such real
estate taxes allocated to the leased Premises by square footage or other
reasonable basis as calculated and determined by Landlord. If the tax billing
pertains 100% to the leased Premises, and Landlord chooses to have Tenant pay
said real estate taxes directly to the Tax Collector, then in such event it
shall be the responsibility of Tenant to obtain the tax and assessment bills and
pay, prior to delinquency, the applicable real property taxes and assessments
pertaining to the leased Premises, and failure to receive a xxxx for taxes
and/or assessments shall not provide a basis for cancellation of or
nonresponsibility for payment of penalties for nonpayment or late payment by
Tenant. The term "Real Property Taxes", as used herein, shall mean (i) all
taxes, assessments, levies and other charges of any kind or nature whatsoever,
general and special, foreseen and unforeseen (including all installments of
principal and interest required to pay any general or special assessments for
public improvements and any increases resulting from reassessments caused by any
change in ownership of the Premises) now or hereafter imposed by any
governmental or quasi-governmental authority or special district having the
direct or indirect power to tax or levy assessments, which are levied or
assessed against, or with respect to the value, occupancy or use of, all or any
portion of the Premises (as now constructed or as may at any time hereafter be
constructed, altered, or otherwise changed) or Landlord's interest therein; any
improvements located within the Premises (regardless of ownership); the
fixtures, equipment and other property of Landlord, real or personal, that are
an integral part of and located in the Premises; or parking areas, public
utilities, or energy within the Premises; (ii) all charges, levies or fees
imposed by reason of environmental regulation or other governmental control of
the Premises; and (iii) all costs and fees (including reasonable attorney's
fees) incurred by Landlord in reasonably contesting any Real Property Tax and in
negotiating with public authorities as to any Real Property Tax. If at any time
during the term of this Lease the taxation or assessment of the Premises
prevailing as of the commencement date of this Lease shall be altered so that in
lieu of or in addition to any Real Property Tax described above there shall be
levied, assessed or imposed (whether by reason of a change in the method of
taxation or assessment, creation of a new tax or charge, or any other cause) an
alternate or additional tax or charge (i) on the value, use or occupancy of the
Premises or Landlord's interest herein or (ii) on or measured by the gross
receipts, income or rentals from the Premises, on Landlord's business of leasing
the Premises, or computed in any manner with respect to the operation of the
Premises, then any such tax or charge, however designated, shall be included
within the meaning of the term "Real Property Taxes" for purposes of this Lease.
If any Real Property Tax is based upon property or rents
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unrelated to the Premises, then only that part of such Real Property Tax that is
fairly allocable to the Premises shall be included within the meaning of the
term "Real Property Taxes". Notwithstanding the foregoing, the term "Real
Property Taxes" shall not include estate, inheritance, gift or franchise taxes
of Landlord or the federal or state net income tax imposed on Landlord's income
from all sources. See Paragraph 49
B. Taxes on Tenant's Property Tenant shall be liable for and shall pay
ten days before delinquency, taxes levied against any personal property or trade
fixtures placed by Tenant in or about the Premises. If any such taxes on
Tenant's personal property or trade fixtures are levied against Landlord or
Landlord's property or if the assessed value of the Premises is increased by the
inclusion therein of a value placed upon such personal property or trade
fixtures of Tenant and if Landlord, after written notice to Tenant, pays the
taxes based on such increased assessment, which Landlord shall have the right to
do regardless of the validity thereof, but only under proper protest if
requested by Tenant. Tenant shall upon demand, as the case may be, repay to
Landlord the taxes so levied against Landlord, or the proportion of such taxes
resulting from such increase in the assessment; provided that in any such event
Tenant shall have the right, in the name of Landlord and with Landlord's full
cooperation, to bring suit in any court of competent jurisdiction to recover the
amount of such taxes so paid under protest, and any amount so recovered shall
belong to Tenant.
10. LIABILITY INSURANCE Tenant, at Tenant's expense, agrees to keep in
force during the term of this Lease a policy of commercial general insurance
with combined single limit coverage of not less than Two Million Dollars
($2,000,000) for bodily injury and property damage occurring in, on or about the
Premises, including parking and landscaped areas. Such insurance shall be
primary and noncontributory as respects any insurance carried by Landlord. The
policy or policies effecting such insurance shall name Landlord as additional
insureds, and shall insure any liability of Landlord, contingent or otherwise,
as respects acts or omissions of Tenant, its agents, employees or invitees or
otherwise by any conduct or transactions of any of said persons in or about or
concerning the Premises, including any failure of Tenant to observe or perform
any of its obligations hereunder; shall be issued by an insurance company
admitted to transact business in the State of California; and shall provide that
the insurance effected thereby shall not be canceled, except upon thirty (30)
day's prior written notice to Landlord. A certificate of insurance of said
policy should be delivered to Landlord. If, during the term of this Lease, in
the considered reasonable opinion of Landlord's Lender, insurance advisor, or
counsel, the amount of insurance described in Paragraph 10 is not adequate,
Tenant agrees to increase said coverage to such reasonable amount as Landlord's
Lender, insurance advisor, or counsel shall deem adequate.
11. TENANT'S PERSONAL PROPERTY INSURANCE AND XXXXXXX'X COMPENSATION
INSURANCE Tenant shall maintain a policy or policies of fire and property damage
insurance in "all risk" form with a sprinkler leakage endorsement insuring the
personal property, inventory, trade fixtures, and leasehold improvements within
the leased Premises for the full replacement value thereof. The proceeds from
any of such policies shall be used for the repair or replacement of such items
so insured.
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Tenant shall also maintain a policy or policies of xxxxxxx'x compensation
insurance an and any other employee benefit insurance sufficient to comply with
all laws.
12. PROPERTY INSURANCE Landlord shall purchase an keep in force, and as
Additional Rent and in accordance with Paragraph 4D of this Lease, Tenant shall
pay to Landlord (or Landlord's agent if so directed by Landlord) Tenant's
proportionate share (allocated to the leased Premises by square footage or other
equitable basis as calculated and determined by Landlord) of the deductibles on
insurance claim and the cost of, policy or policies of insurance covering loss
or damage to the Premises (excluding routine maintenance and repairs and
incidental damage or destruction caused by accidents or vandalism for which
Tenant is responsible under Paragraph 7) in the amount of the full replacement
value thereof, providing protection against those perils included within the
classification of "all risks" insurance and flood and/or earthquake insurance,
if available, plus a liability policy and a policy of rental income insurance in
the amount of one hundred (100%) percent of twelve (12) months Basic Rent, plus
sums paid as Additional Rent. If such insurance cost is increased due to
Tenant's use of the Premises, Tenant agrees to pay to Landlord the full cost of
such increase. Tenant shall have no interest in nor any right to the proceeds of
any insurance procured by Landlord for the Premises. Landlord and Tenant do each
hereby respectively release the other, to the extent of insurance coverage of
the releasing party, from any liability for loss or damage caused by fire or any
of the extended coverage casualties included in the releasing party's insurance
coverage policies, irrespective of the cause of such fire or casualty; provided,
however, that if the insurance policy of either releasing party prohibits such
waiver, then this waiver shall not take effect until consent to such waiver is
obtained. If such waiver is so prohibited, the insured party affected shall
promptly notify the other party thereof.
13. INDEMNIFICATION Landlord shall not be liable to Tenant and Tenant
hereby waives all claims against Landlord for any injury to or death of any
person or damage to or destruction of property in or about the Premises by or
from any cause whatsoever, including, without limitation, gas, fire, oil,
electricity or leakage of any character from the roof, walls, basement or other
portion of the Premises but excluding, however, the willful misconduct or
negligence of Landlord, its agents, servants, employees, invitees, or
contractors of which negligence Landlord has knowledge and reasonable time to
correct. Except as to injury to persons or damage to property to the extent
arising from the willful misconduct or the negligence of Landlord, its agents,
servants, employees, invitees, or contractors. Tenant shall hold Landlord
against any and all expenses, including reasonable attorneys' fees, in
connection therewith, arising out of any injury to or death of any person or
damage to or destruction of property occurring in, on or about the Premises, or
any part thereof, from any cause whatsoever.
14. COMPLIANCE Tenant, at its sole cost and expense, shall promptly comply
with all laws, statutes, ordinances and governmental rules, regulations or
requirements now or hereafter in effect, pertaining to said Premises, with the
requirements of any board of fire underwriters or other similar body now or
hereafter constituted; and with any direction or occupancy certificate issued
pursuant to law by any public officer; provided, however, that no such failure
shall be deemed a breach of the provisions if Tenant, immediately upon
notification, commences to remedy or rectify said failure. The judgment of any
court of competent jurisdiction or the
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admission of Tenant in any action against Tenant, whether Landlord be a party
thereto or not, that Tenant has violated any such law, statute, ordinance or
governmental rule, regulation, requirement, direction or provision, shall be
conclusive of that fact as between Landlord and Tenant. Tenant shall, at its
sole cost and expense, comply with any and all requirements pertaining to said
Premises, of any insurance organization or company, necessary for the
maintenance of reasonable fire and public liability insurance covering
requirements pertaining to said Premises, of any insurance organization or
company, necessary for the maintenance of reasonable fire and public liability
insurance covering the Premises.
15. LIENS TENANT shall keep the Premises free from any liens arising out of
any work performed, materials furnished or obligation incurred by Tenant. In the
event that Tenant shall not, within ten (10) days following the imposition of
such lien, cause the same to be released of record, Landlord shall have, in
addition to all other remedies provided herein and by law, the right, but no
obligation, to cause the same to be released by such means as it shall deem
proper, including payment of the claim giving rise to such lien. All sums paid
by Landlord for such purpose, and all expenses incurred by it in connection
therewith, shall be payable to Landlord by Tenant on demand with interest at the
prime rate of interest as quoted by the Bank of America.
16. ASSIGNMENT AND SUBLETTING Tenants shall not assign, transfer, or
hypothecate the leasehold estate under this Lease, or any interest therein, and
shall not sublet the Premises, or any part thereof, or any right or privilege
appurtenant thereto, or suffer any other person or entity to occupy or use the
Premises, or any portion thereof, without, in each case, the prior written
consent of Landlord which consent will not be unreasonably withheld. As a
condition for granting this consent to any assignment transfer, or subletting,
Landlord may require that Tenant agrees to pay Landlord, as additional rent,
fifty percent (50%) of all rents or additional consideration ("Excess Rent")
received by Tenant from its assignees, transferees, or subtenants in excess of
the rent payable by Tenant to Landlord hereunder, provided, however, that before
sharing such Excess Rent, Tenant shall first be entitled to recover from such
Excess Rent the amount of any reasonable leasing commissions paid by Tenant to
third parties not affiliated with Tenant. Tenant shall, by thirty (30) days
written notice, advise Landlord of its intent to assign or transfer Tenant's
interest in the Lease or sublet the Premises or any portion thereof for any part
of the term hereof. Within thirty (30) days after receipt of said written
notice, Landlord may, in its sole discretion, elect to terminate this Lease as
to the portion of the Premises described in Tenant's notice on the date
specified in Tenant's notice by giving written notice of such election to
terminate. Notwithstanding the above, Landlord shall not have a right to
terminate said Lease in the event of a sublease, unless Tenant subleases more
than forty percent (40%) of said Leased Premises. If no such notice to terminate
is given to Tenant within said thirty (30) days period, Tenant may proceed to
locate an acceptable sublessee, assignee, or other transferee for presentment to
Landlord for Landlord's approval, all in accordance with the terms, covenants,
and conditions of this paragraph 16. If Tenant intends to sublet the entire
Premises and Landlord elects to terminate this Lease, this Lease shall be
terminated on the date specified in Tenant's notice. If, however, this Lease
shall terminate pursuant to the foregoing with respect to less than all the
Premises, the rent, as defined and reserved hereinabove shall be adjusted on a
pro rata basis to the number of square feet retained by Tenant, and this Lease
as so amended shall continue in full force and effect. In the event Tenant is
allowed to assign, transfer or sublet the
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whole or any part of the Premises, with prior written consent of Landlord, no
assignee, transferee or subtenant shall assign or transfer this Lease, either in
whole or in part, or sublet the whole or any part of the Premises, without also
having obtained the prior written consent of Landlord. As of the date of this
Lease, Landlord represents that there are no direct loans outstanding on the
Premises leased hereunder. A consent of Landlord to one assignment, transfer,
hypothecation, subletting, occupation or use by any other person shall not
release Tenant from any of Tenant's obligations hereunder or be deemed to be a
consent to any subsequent similar or dissimilar assignment, transfer,
hypothecation, subletting, occupation or use by any other person. Any such
assignment, transfer, hypothecation, subletting, occupation or use without such
consent shall be void and shall constitute a breach of this Lease by Tenant and
shall, at the option of Landlord exercised by written notice to Tenant,
terminate this Lease. The leasehold estate under this Lease shall not, nor shall
any interest herein, be assignable for any purpose by operation of law without
the written consent of Landlord. As a condition to its consent, Landlord may
require Tenant to pay all expenses in connection with the assignment, and
Landlord may require Tenant's assignee or transferee (or other assignees or
transferees) to assume in writing all of the obligations under this Lease and
for Tenant to remain liable to Landlord under the Lease. See Xxxxxxxxx 00
00. SUBORDINATION AND MORTGAGES In the event Landlord's title or leasehold
interest is now or hereafter encumbered by a deed of trust, upon the interest of
Landlord in the land and buildings in which the demised Premises are located, to
secure a loan from a lender (hereinafter referred to as "Lender") to Landlord,
Tenant Shall, at the request of Landlord or Lender, execute in writing an
agreement subordinating its rights under this Lease to the lien of such deed of
trust, or, if so requested, agreeing that the lien of Lender's deed of trust
shall be or remain subject and subordinate to the rights of Tenant under this
Lease and provided Lender executes a reasonable non-disturbance agreement.
Notwithstanding any such subordination, Tenant's possession under this Lease
shall not be disturbed if Tenant is not in default and so long as Tenant shall
pay all rent and observe and perform all of the provisions set forth in this
Lease and any such subordination agreement shall so reflect.
18. ENTRY BY LANDLORD Landlord reserves, and shall at all reasonable times
during business hours and after at least 24 hours notice (except in emergencies)
have, the right to enter the Premises to inspect them; to perform any services
to be provided by Landlord hereunder; to make repairs or provide any services to
a contiguous tenant(s); to submit the Premises to prospective purchasers,
mortgages or tenants; to post notices of nonresponsibility; and to alter,
improve or repair the Premises or other parts of the building, all without
abatement of rent, and may erect scaffolding and other necessary structures in
or through the Premises where reasonably required by the character of the work
to be performed; provided, however that the business of Tenant shall be
interfered with to the least extent that is reasonably practical. Any entry to
the Premises by Landlord for the purposes provided for herein shall not under
any circumstances be construed or deemed to be a forcible or unlawful entry into
or a detainer of the Premises or an eviction, actual or constructive, of Tenant
from the Premises or any portion thereof. Landlord shall use its best efforts to
minimize its interference with Tenant's business operations during such
entrance.
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19. BANKRUPTCY AND DEFAULT The commencement of a bankruptcy action or
liquidation action or reorganization action or insolvency action or an
assignment of or by Tenant for the benefit of creditors, or any similar action
undertaken by Tenant, or the insolvency of Tenant, shall, at Landlord's option,
constitute a breach of this Lease by Tenant. If the trustee or receiver
appointed to serve during a bankruptcy, liquidation, reorganization, insolvency
or similar action elects to reject Tenant's unexpired Lease, the trustee or
receiver shall notify Landlord in writing of its election within thirty (30)
days after an order for relief in a liquidation action or within (30) days after
the commencement of any action.
Within thirty (30) days after court approval of the assumption of this
Lease, the trustee or receiver shall cure (or provide adequate assurance to the
reasonable satisfaction of Landlord that the trustee or receiver shall cure) any
and all previous defaults under the unexpired Lease and shall compensate
Landlord for all actual pecuniary loss and shall provide adequate assurance of
future performance under said Lease to the reasonable satisfaction of Landlord.
Adequate assurance of future performance, as used herein, includes, but shall
not be limited to: (i) assurance of source and payment of rent, and other
consideration due under this Lease; (ii) assurance that the assumption or
assignment of this Lease will not breach substantially and provision, such as
radius, location, use, or exclusivity provision, in any agreement relating to
the above described Premises.
Nothing contained in this section shall affect the existing right of
Landlord to refuse to accept an assignment upon commencement of or in connection
with a bankruptcy, liquidation, reorganization or insolvency action or an
assignment of Tenant for the benefit of creditors or other similar act. Nothing
contained in this Lease shall be construed as giving or granting or creating
equity in the demised Premises to Tenant. In no event shall the leasehold estate
under this Lease, or any interest therein, be assigned by voluntary or
involuntary bankruptcy proceeding without the prior written consent of Landlord.
In no event shall this Lease or any rights or privileges hereunder be an asset
of Tenant under any bankruptcy, insolvency or reorganization proceedings.
The failure to perform or honor any covenant, condition or
representation made under this Lease shall constitute default hereunder by
Tenant upon expiration of the appropriate grace period hereinafter provided.
Tenant shall have a period of five (5) days from the date of written notice from
Landlord within which to cure any default in the payment of rental or adjustment
thereto. Tenant shall have a period of thirty (30) days from the date of written
notice from Landlord within which to cure any other default under this Lease;
provided, however, that if the nature of Tenant's failure is such that more than
thirty (30) days is reasonably required to cure the same. Tenant shall not be in
default so long as Tenant commences performance within I such thirty (30) day
period and thereafter prosecutes the same to completion. Upon an uncured default
of this Lease by Tenant, Landlord shall have the following rights and remedies
in addition to any other rights or remedies available to Landlord at law or in
equity:
(a) The rights and remedies provided for by California Civil Code
Section 1951.2, including but not limited to, recovery of the worth at the time
of award of the amount by which the unpaid rent for the balance of the term
after the time of award exceeds the amount of rental loss for the same period
that Tenant proves could be reasonably avoided, as computed pursuant to
subsection (b) of said Section 1951.2. Any proof by Tenant under subparagraphs
(2) and (3) of Section 1951.2 of the California Civil Code of the amount of
rental loss that could be reasonably avoided shall be made in the following
manner: Landlord and Tenant shall each select
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a licensed real estate broker in the business of renting property of the same
type and use as the Premises and in the same geographic vicinity. Such two real
estate brokers shall select a third licensed real estate broker, and the three
licensed real estate brokers so selected shall determine the amount of the
rental loss that could be reasonably avoided from the balance of the term of
this Lease after the time of award. The decision of the majority of said
licensed real estate brokers should be final and binding upon the parties
hereto.
(b) The rights and remedies provided by California Civil Code Section
which allows Landlord to continue the Lease in effect and to enforce all of its
rights and remedies under this Lease, including the right to recover rent as it
becomes due, for so long as Landlord does not terminate Tenant's rights to
possession; acts of maintenance or preservation, efforts to relet the Premises,
or the appointment of a receiver upon Landlord's initiative to protect its
interest under this Lease shall not constitute a termination of Tenant's right
to possession.
(c) The right to terminate this Lease by giving notice to Tenant in
accordance with applicable law.
(d) To the extent permitted by law, the right and power, to enter the
Premises and remove therefrom all persons and property, to store such property
in a public warehouse or elsewhere at the cost of and for the account of Tenant,
and to sell such property and apply such proceeds therefrom pursuant to
applicable California law. Landlord, may from time to time sublet the Premises
or any part thereof for such term or terms (which may extend beyond the term of
this Lease) and at such rent and such other terms as Landlord in its reasonable
sole discretion may deem advisable, with the right to make alterations and
repairs to the Premises. Upon each subletting, (i) Tenant shall be immediately
liable to pay Landlord, in addition to indebtedness other than rent due
hereunder, the reasonable cost of such subletting, including, but not limited
to, reasonable attorney's fees, and any real estate commissions actually paid,
and the cost of such reasonable alterations and repairs incurred by Landlord and
the amount, if any, by which the rent hereunder for the period of such
subletting (to the extent such period does not exceed the term hereof) exceeds
the amount to be paid as rent for the Premises for such period or (ii) at the
option of Landlord, rents received from such subletting shall be applied first
to payment of indebtedness other than rent due hereunder from Tenant to
Landlord; second, to the payment of any costs of such subletting and of such
alterations and repairs; third to payment of rent due and unpaid hereunder; and
the residue, if any, shall be held by Landlord and applied in payment of future
rent as the same becomes due hereunder. If Tenant has been credited with any
rent to be received by such subletting under option (i) and such rent shall not
be promptly paid to Landlord by the subtenant(s), or if such rentals received
from such subletting under option (ii) during any month be less than that to be
paid during that month by Tenant hereunder, Tenant shall pay any such deficiency
to Landlord. Such deficiency shall be calculated and paid monthly. No taking
possession of the Premises by Landlord shall be construed as an election on its
part to terminate this Lease unless a written notice of such intention is given
to Tenant. Notwithstanding any such subletting without termination, Landlord may
at any time hereafter elect to terminate this Lease for such previous breach.
(e) The right to have a receiver appointed for Tenant upon application
by Landlord, to take possession of the Premises and to apply any rental
collected from the Premises and to exercise all other rights and remedies
granted to Landlord pursuant to subparagraph d. above.
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20. ABANDONMENT Tenant shall not vacate or abandon the Premises at any time
during the term of this Lease (except that Tenant may vacate so long as it pays
rent, provides an on-site security guard during normal business hours form
Monday through Friday, and otherwise performs its obligations hereunder) and if
Tenant shall abandon, vacate or surrender said Premises, or be dispossessed by
the process of law, or otherwise, any personal property belonging to Tenant and
left on the Premises shall be deemed to be abandoned, at the option of Landlord,
except such property as may be mortgaged to Landlord.
21. DESTRUCTION In the event the Premises are destroyed in whole or in part
from any cause, except for routine maintenance and repairs and incidental damage
and destruction caused from vandalism and accidents for which Tenant is
responsible under Xxxxxxxxx 0, Xxxxxxxx may, at its option:
(a) Rebuild or restore the Premises to their condition prior to the
damage or destruction, or
(b) Terminate this Lease. (providing that the Premises are damaged to
the extent of 33 1/3% of the replacement cost).
If Landlord does not give Tenant notice in writing within (30) days
from the destruction of the Premises of its election to either rebuild and
restore them, or to terminate this Lease, Landlord shall be deemed to have
elected to rebuild or restore them, in which event Landlord agrees, at its
expense, except for any deductible, which is the responsibility of Tenant,
promptly to rebuild or restore the Premises to their condition prior to the
damage or destruction. Tenant shall be entitled to a reduction in rent while
such repair is being made in proportion that the area of the Premises rendered
untenantable by such damage bears to the total area of the Premises. If Landlord
initially estimates that the rebuilding or restoration will exceed 180 days, or
if Landlord does not commence repairs within 90 days or complete the rebuilding
or restoration within one hundred eighty (180) days following the date of
destruction (such period of time to be extended for delays caused by the fault
or neglect of Tenant or because of Acts of God, acts of public agencies, labor
disputes, strikes, fires, freight embargoes, rainy or stormy weather, inability
to obtain materials, supplies or fuels, acts of contractors, or subcontractors,
or delay of the contractors or subcontractors due to such causes or other
contingencies beyond the control of Landlord), or if the damage exceeds 33 1/3%
and occurs during the last twelve months of the initial Lease Term or any
extended Term, then Tenant shall have the right to terminate this Lease by
giving fifteen (15) days prior written notice to Landlord. Notwithstanding
anything herein to the contrary, Landlord's obligation to rebuild or restore
shall be limited to the building and interior improvements constructed by
Landlord as they existed as of the commencement date of the Lease and shall not
include restoration of Tenant's trade fixtures, equipment, merchandise, or any
improvements, alterations or additions made by Tenant to the Premises, which
Tenant shall forthwith replace or fully repair at Tenant's sole cost and expense
provided this Lease is not cancelled according to the provisions above.
Unless this Lease is terminated pursuant to the foregoing provisions,
this Lease shall remain in full force and effect. Tenant hereby expressly waives
the provisions of Section 1932, Subdivision 2, in Section 1933, Subdivision 4 of
the California Civil Code.
In the event that the building in which the Premises are situated is
damaged or destroyed to the extent of not less than 33 1/3% of the replacement
cost thereof, Landlord may elect to terminate this Lease, whether the Premises
be injured or not. Notwithstanding anything to the
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contrary herein, Landlord may terminate this Lease in the event of an uninsured
event or if insurance proceeds are insufficient to cover one hundred percent of
the rebuilding costs net of the deductible; provided however, Tenant shall have
the right to elect, in its discretion, to contribute such excess funds to permit
Landlord to repair the Premises.
22. EMINENT DOMAIN Landlord shall contest any eminent domain assertion if
Landlord, in its sole and absolute discretion, believes it's prudent to do so.
If all or any part of the Premises shall be taken by any public or quasi-public
authority under the power of eminent domain or conveyance in lieu thereof, this
Lease shall terminate as to any portion of the Premises so taken or conveyed on
the date when title vests in the condemnor, and Landlord shall be entitled to
any and all payment, income, rent, award, or any interest therein whatsoever
which may be paid or made in connection with such taking or conveyance, and
Tenant shall have no claim against Landlord or otherwise for the value of any
unexpired term of this Lease. Notwithstanding the foregoing paragraph, any
compensation specifically awarded Tenant for loss of business; Tenant's personal
property, moving cost or loss of goodwill shall be and remain the property of
Tenant.
If any action or proceeding is commenced for such taking of the
Premises or any part thereof, or if Landlord is advised in writing by any entity
or body having the right or power of condemnation of its intention to condemn
the premises or any portion thereof, then Landlord shall have the right to
terminate this Lease by giving Tenant written notice thereof within sixty (60)
days of the date of receipt of said written advice, or commencement of said
action or proceeding, or taking conveyance, which termination shall take place
as of the first to occur of the last day of the calendar month next following
the month in which such notice is given or the date on which title to the
Premises shall vest in the condemnor.
In the event of such a partial taking or conveyance of the Premises, if
the portion of the Premises taken or conveyed is so substantial that the Tenant
can no longer reasonably conduct its business, Tenant shall have the privilege
of terminating this Lease within sixty (60) days from the date of such taking or
conveyance, upon written notice to Landlord of its intention so to do, and upon
giving of such notice this Lease shall terminate on the lst day of the calendar
month next following the month in which such notice is given, upon payment by
Tenant of the rent from the date of such taking or conveyance to the date of
termination.
If a portion of the Premises be taken by condemnation or conveyance in
lieu thereof and neither Landlord nor Tenant shall terminate this Lease as
provided herein, this Lease shall continue in full force and effect as to the
part of the Premises not so taken or conveyed, and the rent herein shall be
apportioned as of the date of such taking or conveyance so that thereafter the
rent to be paid by Tenant shall be in the ratio that the area of the portion of
the Premises not so taken or conveyed bears to the total area of the Premises
prior to such taking.
23. SALE OR CONVEYANCE BY LANDLORD In the event of a sale or conveyance of
the Premises or any interest therein, by any owner of the reversion then
constituting Landlord, the transfer or shall thereby be released from any
further liability upon any of the terms, covenants or conditions (express or
implied) herein contained in favor of Tenant, and in such event, insofar as such
transfer is concerned, Tenant agrees to look solely to the responsibility of the
successor in interest of such transferor in and to the Premises and this Lease.
This Lease
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shall not be affected by any such sale or conveyance, and Tenant agrees to
attorn to the successor in interest of such transferor.
24. ATTORNMENT TO LENDER OR THIRD PARTY Subject to Tenant's receipt of an
executed non-disturbance agreement pursuant to Paragraph 17 of this Lease, in
the event the interest of Landlord in the land and buildings in which the leased
Premises are located (whether such interest of Landlord is a fee title interest
or a leasehold interest) is encumbered by deed of trust, and such interest is
acquired by the lender or any third party through judicial foreclosure or by
exercise of a power of sale at private trustee's foreclosure sale, Tenant hereby
agrees to attorn to the purchaser at any such foreclosure sale and to recognize
such purchaser as the Landlord under this Lease. In the event the lien of the
deed of trust securing the loan from a Lender to Landlord is prior and paramount
to the Lease, this Lease shall nonetheless continue in full force and effect for
the remainder of the unexpired term hereof, at the same rental herein reserved
and upon all of the other terms, conditions and convenants herein contained.
25. HOLDING OVER Any holding over by Tenant after expiration or other
termination of the term of this Lease with the written consent of Landlord
delivered to Tenant shall not constitute a renewal or extension of the Lease or
give Tenant any rights in or to the leased Premises except as expressly provided
in this Lease. Any holding over after the expiration or other termination of the
term of this Lease, with the consent of Landlord, shall be construed to be a
tenancy from month to month, on the same terms and conditions herein specified
insofar as applicable except that the monthly Basic Rent shall be increased to
an amount equal to one hundred fifty (150%) percent of the monthly Basic Rent
required during the last month of the Lease term.
26. CERTIFICATE OF ESTOPPEL Tenant shall at any time upon not less than
then (10) days prior written notice to Landlord execute, acknowledge and deliver
to Landlord a statement in writing (i) certifying that this Lease is unmodified
and in full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full force
and effect) and the date to which the rent and other charges are paid in
advance, if any, and (ii) acknowledging there are not, to Tenant's knowledge,
any uncured defaults on the part of Landlord hereunder, or specifying such
defaults, if any, are claimed. Any such statement may be conclusively relied
upon by any prospective purchaser or encumbrance of the Premises. Tenant's
failure to deliver such statement within such time shall be conclusive upon
Tenant that this Lease is in full force and effect, without modification except
as may be represented by Landlord; that there are no uncured defaults in
Landlord's performance, and that not more than one month's rent has been paid in
advance.
27. CONSTRUCTION CHANGES LANDLORD shall endeavor to construct the Premises
leased hereunder pursuant to Exhibit B to the Lease; however, it is understood
that the description of the Premises and the location of ductwork, plumbing and
other facilities therein are subject to such minor changes as Landlord or
Landlord's architect determines to be desirable in the course of construction of
the Premises, and no such changes shall affect this Lease or entitle Tenant to
any reduction of rent hereunder or result in any liability of Landlord to
Tenant.
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Landlord does not guarantee the accuracy of any drawings supplied to Tenant and
verification of the accuracy of such drawings rests with Tenant.
28. RIGHT OF LANDLORD TO PERFORM All terms, covenants and conditions of
this Lease to be performed or observed by Tenant shall be performed or observed
by Tenant at Tenant's sole cost and expense and without any reduction of rent.
If Tenant shall fail to pay any sum of money, or other rent, required to be paid
by it hereunder or shall fail to perform any other term or covenant hereunder on
its part to be performed, and such failure shall continue for five (5) days
after written notice thereof by Landlord, Landlord, without waiving or releasing
Tenant from any obligation of Tenant hereunder, may, but shall not be obliged
to, make any such payment or perform any such other term or covenant on Tenant's
part to be performed. All sums so paid by Landlord and all necessary costs of
such performance by Landlord together with interest thereon at the rate of the
prime rate of interest per annum as quoted by the Bank of America from the date
of such payment on performance by Landlord, shall be paid (and Tenant covenants
to make such payment) to Landlord on demand by Landlord, and Landlord shall have
(in addition to any other right or remedy of Landlord) the same rights and
remedies in the event of nonpayment by Tenant as in the case of failure by
Tenant in the payment of rent hereunder.
29. ATTORNEYS' FEES
A. In the event that either Landlord or Tenant should bring suit for the
possession of the Premises, for the recovery of any sum due under this Lease, or
because of the breach of any provision of this Lease, or for any other relief
against the other party hereunder, then all costs and expenses, including
reasonable attorneys' fees incurred by the prevailing party therein shall be
paid by the other party, which obligation on the part of the other party shall
be deemed to have accrued on the date of the commencement of such action and
shall be enforceable whether or not the action is prosecuted to judgment.
B. Should Landlord be named as a defendant in any suit brought against
Tenant in connection with or arising out of Tenant's occupancy hereunder, Tenant
shall pay to Landlord its costs and expenses incurred in such suit, including a
reasonable attorney's fee subject to the provisions of Paragraph 13.
30. WAIVER The wavier by either party of the other party's failure to
perform or observe any term, covenant or condition herein contained to be
performed or observed by such waiving party shall not be deemed to be a waiver
of such term, covenant or condition or of any subsequent failure of the party
failing to perform or observe the same or any other such term, covenant or
condition therein contained, and no custom or practice which may develop between
the parties hereto during the term hereof shall be deemed a waiver of, or in any
way affect, the right of either party to insist upon performance and observance
by the other party in strict accordance with the terms hereof.
31. NOTICES All notices, demands, requests, advices or designations which
may be or are required to be given by either party to the other hereunder shall
be in writing. All notices, demands, requests, advices or designations by
Landlord to Tenant shall be sufficiently given, made or delivered if personally
served on Tenant by leaving the same at the Premises of if sent
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by United States certified or registered mail, postage prepaid, addressed to
Tenant at the Premises. All notices, demands, requests, advices or designations
by Tenant to Landlord shall be sent by United States certified or registered
mail, postage prepaid, addressed to Landlord at its offices at Xxxxx/Xxxxxxxxx,
0000 Xxxxxxx Xxxxxxx Xxxx., Xxxxx 000, Xxxxx Xxxxx, XX 00000. Prior to Tenant's
occupancy of the Premises, all notices by Landlord to Tenant shall be sent to
Tenant's current offices at 0000 Xxxxxx Xxxx, Xxxxx Xxxx, XX 00000. Each notice,
request, demand, advice or designation referred to in this paragraph shall be
deemed received on the date of the personal service or, mailing thereof in the
manner herein provided, as the case may be.
32. EXAMINATION OF LEASE Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option for a lease,
and this instrument is not effective as a lease or otherwise until its execution
and delivery by both Landlord and Tenant.
33. DEFAULT BY LANDLORD Landlord shall not be in default unless Landlord fails
to perform obligations required of Landlord within a reasonable time, but in no
event earlier than (30) days after written notice by Tenant to Landlord and to
the holder of any first mortgage or deed of trust covering the Premises whose
name and address shall have heretofore been furnished to Tenant in writing,
specifying wherein Landlord has failed to perform such obligations; provided,
however, that if the nature of Landlord's obligations is such that more than
thirty (30) days are required for performance, then Landlord shall not be in
default if Landlord commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion.
34. CORPORATE AUTHORITY If Tenant is a corporation (or a partnership), each
individual executing this Lease on behalf of said corporation (or partnership)
represents and warrants that he is duly authorized to execute and deliver this
Lease on behalf of said corporation (or partnership) in accordance with the
by-laws of said corporation (or partnership in accordance with the partnership
agreement) and that this Lease is binding upon said corporation (or partnership)
in accordance with its terms. If Tenant is a corporation, Tenant shall, within
thirty (30) days after execution of this Lease, deliver to Landlord a certified
copy of the resolution of the Board of Directors of said corporation authorizing
or ratifying the execution of this Lease.
35. BASIC RENT ADJUSTMENT
(Deleted)
36. LIMITATION OF LIABILITY In consideration of the benefits accruing hereunder.
Tenant and all successors and assigns covenant and agree that, in the event of
any actual or alleged failure, breach or default hereunder by Landlord:
(a) the sole and exclusive remedy shall be against Landlord's
interest in the Premises leased herein;
(b) no partner of Landlord shall be sued or named as a party in
any suit or action (except as may be necessary to secure
jurisdiction of the partnership);
(c) no service of process shall be made against any partner of
Landlord (except as may be necessary to secure jurisdiction of
the partnership);
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(d) no partner of Landlord shall be required to answer or
otherwise plead to any service of process
(e) no judgment will be taken against any partner of Landlord;
(f) any judgment taken against any partner of Landlord may be
vacated and set aside at any time without hearing;
(g) no writ of execution will ever be levied against the assets of
any partner of Landlord;
(h) these covenants and agreements are enforceable both by
Landlord and also by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements shall
be applicable to any covenant or agreement either expressly contained in this
Lease or imposed by statute or at common law.
37. SIGNS No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside of
the Premises or any exterior windows of the Premises without the written consent
of Landlord first had and obtained and Landlord shall have the right to remove
any such sign, placard, picture, advertisement, name or notice without notice to
and at the expense of Tenant. If Tenant is allowed to print or affix or in any
way place a sign in, on, or about the Premises, upon expiration or other sooner
termination of this Lease, Tenant at Tenant's sole cost and expense shall both
remove such sign and repair all damage in such a manner as to restore all
aspects of the appearance of the Premises to the condition prior to the
placement of said sign.
All approved signs or lettering on outside doors shall be printed,
painted, affixed or inscribed at the expense of Tenant by a person approved of
by Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door partition or wall, which may appear unsightly from
outside the Premises.
38. MISCELLANEOUS AND GENERAL PROVISIONS
A. Use of Building Name. Tenant shall not, without the written
consent of Landlord, use the name of the building for any
purpose other than as the address of the business conducted by
Tenant in the Premises.
B. Choice of Law; Severability. This Lease shall in all respects
be governed by and construed in accordance with the laws of
the State of California. If any provision of this Lease shall
be invalid, unenforceable or ineffective for any reason
whatsoever, all other provisions hereof shall be and remain in
full force and effect.
C. Definition of Terms. The term "Premises" includes the space
leased hereby and any improvements now or hereafter installed
therein or attached thereto. The term "Landlord" or any
pronoun used in place thereof includes the plural as well as
the singular and the successors and assigns of Landlord. The
term "Tenant" or any pronoun used in place thereof includes
the plural as well as the singular and individuals, firms,
associations, partnerships and corporations, and their and
each of their respective heirs, executors, administrators,
successors and permitted assigns, according to the context
hereof, and the provisions of this Lease shall inure to the
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benefit of and bind such heirs, executors, administrators,
successors and permitted assigns.
The term "person" includes the plural as well as the singular
and individuals, firms, associations, partnerships and corporations.
Words used in any gender include other genders. If there be more than
one Tenant the obligations of Tenant hereunder are joint and several.
The paragraph headings of this Lease are for convenience of reference
only and shall have no effect upon the construction or interpretation
of any provision hereof.
D. Time of Essence. Time is of the essence of this Lease and of each and
all of its provisions.
E. Quitclaim. At the expiration or earlier termination of this Lease,
Tenant shall execute, acknowledge and deliver to Landlord, within ten
(10) days after written demand from Landlord to Tenant, any quitclaim
deed or other document required by any reputable title company,
licensed to operate in the State of California, to remove the cloud or
encumbrance created by this Lease from the real property of which
Tenant's Premises are a part.
F. Incorporation of Prior Agreements; Amendments. This instrument along
with any exhibits and attachments hereto, including the Construction
Letter of even date, hereof, constitutes the entire agreement between
Landlord and Tenant relative to the Premises and this agreement and the
exhibits and attachments may be altered, amended or revoked only by an
instrument in writing signed by both Landlord and Tenant. Landlord and
Tenant agree hereby that all prior or contemporaneous oral agreements
between and among themselves and their agents or representatives
relative to the leasing of the Premises are merged in or revoked by
this agreement.
G. Recording. Neither Landlord nor Tenant shall record this Lease or a
short form memorandum hereof without the consent of the other.
H. Amendments for Financing. Tenant further agrees to execute any
amendments required by a lender to enable Landlord to obtain financing,
so long as Tenant's rights hereunder are not substantially affected.
I. Additional Paragraphs. Paragraphs 39 through 54 are added hereto and
are included as part of this lease.
J. Clauses, Plats and Riders. Clauses, plats and riders, if any, signed by
Landlord and Tenant and endorsed on or affixed to this Lease are a part
hereof.
K. Diminution of Light, Air or View. Tenant covenants and agrees that no
diminution or shutting off of light, air or view by any structure which
may be hereafter erected (whether or not by Landlord) shall in any way
affect this Lease, entitle Tenant to any reduction of rent hereunder or
result in any liability of Landlord to Tenant
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Paragraphs 39 through 54 to Lease Agreement Dated November 25, 1996, By
and Between the Arrillaga Family Trust and the Xxxxxxx X. Xxxxx
Separate Property Trust, as Landlord, and Versant Object Technology
Corporation, a California corporation, as Tenant for 54,492+ Square
Feet of Space Located at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx.
39. BASIC RENT Subject to Paragraphs 2A, 2B and 3 and in accordance with
Paragraph 4A herein, the total aggregate sum of ELEVEN MILLION TWO HUNDRED
SEVENTY NINE THOUSAND EIGHT HUNDRED FORTY FOUR AND NO/100 DOLLARS
($11,279,844.00), shall be payable as follows:
On June 1, 1997, the sum of EIGHTY ONE THOUSAND SEVEN HUNDRED THIRTY
EIGHT AND NO/100 DOLLARS ($81,738.00) shall be due, and a like sum due on the
first day of each month thereafter, through and including May 1, 1998.
On June 1, 1998, the sum of EIGHTY FOUR THOUSAND FOUR HUNDRED SIXTY TWO
AND 60/100 DOLLARS ($84,462.60) shall be due, and a like sum due on the first
day of each month thereafter, through and including May 1, 1999.
On June 1, 1999, the sum of EIGHTY SEVEN THOUSAND ONE HUNDRED EIGHTY
SEVEN AND 20/100 DOLLARS ($87,187.20) shall be due, and a like sum due on the
first day of each month thereafter, through and including May 1, 2000.
On June 1, 2000, the sum of EIGHTY NINE THOUSAND NINE HUNDRED ELEVEN
AND 80/100 DOLLARS ($89,911.80) shall be due, and a like sum due on the first
day of each month thereafter, through and including May 1, 2001.
On June 1, 2001, the sum of NINETY TWO THOUSAND SIX HUNDRED THIRTY SIX
AND 40/100 DOLLARS ($92,636.40) shall be due, and a like sum due on the first
day of each month thereafter, through and including May 1, 2002.
On June 1, 2002, the sum of NINETY FIVE THOUSAND THREE HUNDRED SIXTY
ONE AND NO/100 DOLLARS ($95,361.00) shall be due, and a like sum due on the
first day of each month thereafter, through and including May 1, 2003.
On June 1, 2003, the sum of NINETY EIGHT THOUSAND EIGHTY FIVE AND
60/100 DOLLARS ($98,085.60) shall be due, and a like sum due on the first day of
each month thereafter, through and including May 1, 2004.
On June 1, 2004, the sum of ONE HUNDRED THOUSAND EIGHT HUNDRED TEN
AND 20/100 DOLLARS ($100,810.20) shall be due, and a like sum due on the first
day of each month thereafter, through and including May 1, 2005.
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On June 1, 2005, the sum of ONE HUNDRED THREE THOUSAND FIVE HUNDRED
THIRTY FOUR AND 80/100 DOLLARS ($103,534.80) shall be due, and a like sum due on
the first day of each month thereafter, through and including May 1, 2006.
like sum due on the first
On June 1, 2006, the sum of ONE HUNDRED SIX THOUSAND TWO HUNDRED FIFTY NINE
AND 40/100 DOLLARS ($106,259.40) shall be due, and a like sum due on the first
day of each month thereafter, through and including May 1, 2007; or until the
entire aggregate sum of ELEVEN MILLION TWO HUNDRED SEVENTY NINE THOUSAND EIGHT
HUNDRED FORTY FOUR AND NO/100 DOLLARS ($11,279,844.00) has been paid.
40. CONSENT: Whenever the consent of one party to the other is required
hereunder, such consent shall not be unreasonably withheld.
41. AUTHORITY TO EXECUTE. The parties executing this Lease Agreement hereby
warrant and represent that they are properly authorized to execute this Lease
Agreement and bind the parties on behalf of whom they execute this Lease
Agreement and to all of the teens, covenants and conditions of this Lease
Agreement as they relate to the respective parties hereto.
42. EXPENSES OF OPERATION, MANAGEMENT AND MAINTENANCE OF THE DRIVEWAY, PARKING
LOT AND LANDSCAPED AREAS OF THE PARCEL, ON WHICH THE PREMISES ARE LOCATED: It is
understood by Landlord and Tenant that the areas outlined in Orange on Exhibit A
attached hereto are considered Common Areas; said Common Areas are limited to
the cave way entrance; the fountain (if any) and landscaping included in said
Common Areas. Landlord shall maintain, repair and replace as needed said
improvements within the Common Areas and Tenant shall pay its pro-rata share of
the total costs for all such work completed in the Common Areas; unless,
however, Tenant is responsible for damage to the same which has resulted in said
repairs and/or replacement, in which case Tenant shall pay one hundred percent
(100%) of said costs. Landlord shall also maintain on behalf of Tenant, the
non-Common Area landscape areas, asphalt paved areas (including the Parking Lot)
and sidewalks on the Premises and Tenant shall pay one hundred percent (100%) of
those costs. The cost incurred in both the Common Areas and non-Common Areas
include, but are not limited to license, permit and inspection fees; utility
charges associated with exterior landscaping and lighting, all charges incurred
in the maintenance, repair and replacement as necessary of the: landscaped
areas, fountains (if any), parking lots, parking lot lighting, sidewalks,
driveways, maintenance, repair and replacement of all fountains (if any) and
fountain related fixtures and electrical, mechanical and plumbing systems;
supplies, materials, equipment and tools; the cost of capital expenditures which
have the effect of reducing operating expenses, provided, however, that in the
event Landlord makes such capital improvements, Landlord may amortize its
investment in said improvements (together with interest at the rate of fifteen (
15%) percent per annum on the unamortized balance) as an operating expense in
accordance with standard accounting practices, provided, that such amortization
is not at a rate greater than the anticipated savings in the operating expenses.
Tenant hereby waives all rights hereunder, and benefits of,
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subsection 1 of Section 1932 and Sections 1941 and 1942 of the California Civil
Code and under any similar law, statute or ordinance now or hereafter in effect.
Said costs for Tenant shall pay services provided by Landlord as Additional Rent
in accordance with Paragraph 4D of the Lease.
43. ADDITIONAL RENT CONTINUED: Notwithstanding anything to the contrary in
Paragraph 4D, the following items shall be excluded from "Additional Rent":
1. Leasing commissions, attorney's fees, costs, disbursements, and
other expenses incurred in connection with negotiations with other tenants, or
disputes between Landlord and other tenants, or in connection with leasing,
renovating, or improving space outside the Leased Premises for other current or
prospective tenants or other current or prospective occupants of the Complex.
2. The cost of any service sold to any other tenant or other occupant
for which Landlord is entitled to be reimbursed as an additional charge or
rental over and above the basic rent and escalations payable under the lease
with said other tenant or other occupant.
3. Any costs for which Landlord is reimbursed by others.
4. Any costs, fines, or penalties incurred due to violations by
Landlord of any governmental rule or authority.
44. ASSIGNMENT OF WARRANTIES: During the Term of the Lease, Landlord hereby
assigns to Tenant all of Landlord's Contractor's warranties and shall cooperate
with Tenant in enforcing any of such warranties except that Landlord shall not
be required to pay any legal fees or incur any expenses in this regard.
45. ASSESSMENT CREDITS: The demised property herein may be subject to a
special assessment levied by the City of Fremont as part of an Improvement
District. As a part of said special assessment proceedings (if any), additional
bonds were or may be sold and assessments were or may be levied to provide for
construction contingencies and reserve funds. Interest shall be earned on such
funds created for contingencies and on reserve funds, which will be credited for
the benefit of, said assessment district. To the extent surpluses are created in
said district through unused contingency funds, interest earnings or reserve
funds, such surpluses shall be deemed the property of Landlord. Notwithstanding
that such surpluses may be credited on assessments otherwise due against the
Leased Premises, Tenant shall pay to Landlord, as additional rent if, and at the
time of any such credit of surpluses, an amount equal to all such surpluses so
credited For example: if (i) the property is subject to an annual assessment of
$1,000.00, and (ii) a surplus of $200.00 is credited towards the current year's
assessment which reduces the assessment amount shown on the property tax xxxx
from $1,000.00 to $800.00, Tenant shall, upon receipt) of notice from Landlord,
pay to Landlord said $200.00 credit as Additional Rent.
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46. ASSIGNMENT AND SUBLETTING (CONTINUED):
A. In addition to and notwithstanding anything to the contrary in Paragraph
16 of this Lease, Landlord hereby agrees to consent to Tenant's assigning or
subletting said Lease and not to receive any Excess Rent (as described in
Paragraph 16) to: (i) any parent or subsidiary corporation, affiliate, or
corporation with which Tenant merges or consolidates, provided that the net
worth of said parent or subsidiary corporation, affiliate, or said corporation
has a net worth equal to or greater than the net worth of Tenant at the time of
such assignment, merger, or consolidation; or (ii) any third party or entity to
whom Tenant sells all or substantially all of its assets; provided, that the net
worth of the resulting or acquiring corporation has a net worth after the
merger, consolidation or acquisition equal to or greater than the net worth of
Tenant at the time of such merger, consolidation or acquisition. No such
assignment or subletting will release the Tenant from its liability and
responsibility under this Lease to the extent Tenant continues in existence
following such transaction. Notwithstanding the above, Tenant shall be required
to (a) give Landlord written notice prior to such assignment or subletting to
any party as described in (i) and (ii) above, and (b) execute Landlord's consent
document prepared by Landlord reflecting the assignment or subletting.
B. Any and all sublease agreement(s) between Tenant and any and all
subtenant(s) (which agreements must be consented to by Landlord, pursuant to the
requirements of this Lease) shall contain the following language:
"If Landlord and Tenant jointly and voluntarily elect, for any reason
whatsoever, to terminate the Master Lease prior to the scheduled Master Lease
termination date, then this Sublease (if then still in effect) shall terminate
concurrently with the termination of the Master Lease. Subtenant expressly
acknowledges and agrees that (1) the voluntary termination of the Master Lease
by Landlord and Tenant and the resulting termination of this Sublease shall not
give Subtenant any right or power to make any legal or equitable claim against
Landlord, including without limitation any claim for interference with contract
or interference with prospective economic advantage, and (2) Subtenant hereby
waives any and all rights it may have under law or at equity against Landlord to
challenge such an early termination of the Sublease, and unconditionally
releases and relieves Landlord, and its officers, directors, employees and
agents, from any and all claims, demands, and/or causes of action whatsoever
(collectively, "Claims"), whether such matters are known or unknown, latent or
apparent, suspected or unsuspected, foreseeable or unforeseeable, which
Subtenant may have arising out of or in connection with any such early
termination of this Sublease. Subtenant knowingly and intentionally waives any
and all protection which is or may be given by Section 1542 of the California
Civil Code which provides as follows: "A general release does not extend to
claims which the creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him must have materially
affected his settlement with debtor.
The term of this Sublease is therefore subject to early termination.
Subtenant's initials here below evidence (a) Subtenant's consideration of and
agreement to this early termination provision, ((b)) Subtenant's acknowledgment
that, in determining the net benefits to be derived
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by Subtenant under the terms of this Sublease, Subtenant has anticipated the
potential for early termination, and (c) Subtenant's agreement to the general
waiver and release of Claims above.
47. HAZARDOUS MATERIALS: Landlord and Tenant agree as follows with respect
to the existence or use of "Hazardous Materials" (as defined herein) on, in,
under or about the Premises and real property located beneath said Premises and
the common areas of the Parcel, which includes the entire parcel of land on
which the Premises are located as shown in Green on Exhibit A attached hereto
(hereinafter collectively referred to as the "Property"):
A. As used herein, the term "Hazardous Materials" shall mean any
material, waste, chemical, mixture or byproduct which is or hereafter is
defined, listed or designated under Environmental Laws ((defined below) as a
pollutant, or as a contaminant, or as a toxic or hazardous substance, waste or
material, or any other unwholesome, hazardous, toxic, biohazards, or radioactive
material, waste, chemical, mixture or byproduct, or which is listed, regulated
or restricted by any Environmental Law, / (including, without limitation,
petroleum hydrocarbons or any distillates or derivatives or fractions thereof,
polychlorinated biphenyls, or asbestos). As used herein, the term
"Environmental Laws" shall mean any applicable Federal, State of California or
local government law (including common law) statute, regulation, rule,
ordinance, permit, license, order, requirement, agreement, or approval, or any
determination, judgment, directive, or order of any executive or judicial
authority at any level of Federal, State of California or local government
(whether now existing or subsequently adopted or promulgated) relating to
pollution or the protection of the environment, ecology, natural resources, or
public health and safety.
B. Tenant shall obtain Landlord's written consent, which may be
withheld in Landlord's discretion, prior to the occurrence of any Tenant's
Hazardous Materials Activities (defined below); provided, however, that
Landlord's consent shall not be required for normal use in compliance with
applicable Environmental Laws of customary household and office supplies (Tenant
shall first provide Landlord with a list of said materials use), such as mild
cleaners, lubricants and copier toner. As used herein, the term "Tenant's
Hazardous Materials Activities" shall mean any and all use, handling,
generation, storage, disposal, treatment, transportation, discharge, or emission
of any Hazardous Materials on, in, beneath, to, from, at or about the Property,
in connection with Tenant's use of the Property, or by Tenant or by any of
Tenant's agents, employees, contractors, vendors, invitees, visitors or its
future subtenants or assignees. Tenant agrees that any and all Tenant's
Hazardous Materials Activities shall be conducted in strict, full compliance
with applicable Environmental Laws at Tenant's expense, and shall not result in
any contamination of the Property or the environment. Tenant agrees to provide
Landlord with prompt written notice of any spill or release of Hazardous
Materials at the Property during the term of the Lease of which Tenant becomes
aware, and further agrees to provide Landlord with prompt written notice of any
violation of Environmental Laws in connection with Tenant's Hazardous Materials
Activities of which Tenant becomes aware. If Tenant's Hazardous Materials
Activities involve Hazardous Materials other than normal use of customary
household and office supplies, Tenant also agrees at Tenant's expense: (i) to
install such Hazardous Materials monitoring, storage and containment devices as
Landlord reasonably deems necessary (Landlord shall have no obligation to
evaluate the need for any such installation
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or to require any such installation); (ii) provide Landlord with a written
inventory of such Hazardous Materials, including an update of same each year
upon the anniversary date of the Commencement Date of the Lease ("Anniversary
Date"); and (iii) on each Anniversary Date, to retain a qualified environmental
consultant, acceptable to Landlord, to evaluate whether Tenant is in compliance
with all applicable Environmental Laws with respect to Tenant's Hazardous
Materials Activities. Tenant, at its expense, shall submit to Landlord a report
from such environmental consultant, which discusses the environmental
consultant's findings within two (2) months of each Anniversary Date. Tenant, at
its expense, shall promptly undertake and complete any and all steps necessary,
and in full compliance with applicable Environmental Laws, to fully correct any
and all problems or deficiencies identified by the environmental consultant, and
promptly provide Landlord with documentation of all such corrections.
C. Prior to termination or expiration of the Lease, Tenant, at its
expense, shall (i) properly remove from the Property all Hazardous Materials
which come to be located at the Property in connection with Tenant's Hazardous
Materials Activities, and (ii) fully comply with and complete all facility
closure requirements of applicable Environmental Laws regarding Tenant's
Hazardous Materials Activities, including but not limited to (x) properly
restoring and repairing the Property to the extent damaged by such closure
activities, and (y) obtaining from the local Fire Department or other
appropriate governmental authority with jurisdiction a written concurrence that
closure has been completed in compliance with applicable Environmental Laws.
Tenant shall promptly provide Landlord with copies of any claims, notices, work
plans, data and reports prepared, received or submitted in connection with any
such closure activities.
D. If Landlord, in its sole discretion, believes that the Property has
become contaminated as a result of Tenant's Hazardous Materials Activities,
Landlord in addition to any other rights it may have under this Lease or under
Environmental Laws or other laws, by providing advance written notice, may enter
upon the Property and conduct inspection, sampling and analysis, including but
not limited to obtaining and analyzing samples of soil and groundwater, for the
purpose of determining the nature and extent of such contamination. Tenant shall
promptly reimburse Landlord for the reasonable costs of such an investigation,
including but not limited to reasonable attorneys' fees Landlord incurs with
respect to such investigation, that discloses Hazardous Materials contamination
for which Tenant is liable [under this Lease. Except as may be required of
Tenant by applicable Environmental Laws, Tenant shall not perform any sampling,
testing, or drilling to identify the presence of any Hazardous Materials at the
Property, without Landlord's prior written consent which may be withheld in
Landlord's discretion. Tenant shall promptly provide Landlord with copies of any
claims, notices, work plans, data and reports prepared, received or submitted in
connection with any sampling, testing or drilling performed pursuant to the
preceding sentence.
E. Tenant shall indemnify, defend (with legal counsel acceptable to
Landlord, whose consent shall not unreasonably be withheld) and hold harmless
Landlord, its employees, assigns, successors, successors-in-interest, agents and
representatives from and against any and nil claims (including but not limited
to third party claims from a private party or a government authority),
liabilities, obligations, losses, causes of action, demands, governmental
proceedings or directives, fines, penalties, expenses, costs (including but not
limited to reasonable attorneys', consultants'
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and other experts' fees and costs), and damages, which arise from or relate to:
(i) Tenant's Hazardous Materials Activities; (ii) releases or discharges of I
Hazardous Materials at the Property, which occur during the Term of this Lease,
(iii) any Hazardous Materials contamination caused by Tenant prior to the
Commencement Date of the Lease; or (iv) the breach of any obligation of Tenant
under this Paragraph 47 (collectively, "Tenant's Environmental
Indemnification"). Tenant's Environmental Indemnification shall include but is
not limited to the obligation to promptly and fully reimburse Landlord for
losses in or reductions to rental income, and diminution in fair market value of
the Property. Tenant's Environmental Indemnification shall further include but
is not limited to the obligation to diligently and properly implement to
completion, at Tenant's expense, any and all environmental investigation,
removal, remediation, monitoring, reporting, closure activities, or other
environmental response action (collectively, "Response Actions"). Tenant shall
promptly provide Landlord with copies of any claims, notices, work plans, data
and reports prepared, received or submitted in connection with any Response
Actions.
As evidenced by their initials set forth immediately below, Tenant acknowledges
that Landlord has provided Tenant with copies of the environmental reports
listed on Exhibit C ("Reports"), and Tenant acknowledges that Tenant and
Tenant's experts (if any) have had ample opportunity to review such reports and
that Tenant has satisfied itself as to the environmental conditions of the
Property and the suitability of such conditions for Tenant's intended use of the
Property. To the best of Landlord's knowledge as of the date of this Lease,
except as noted in said reports, no additional on site Hazardous Materials
contamination exist on the Property, however. Landlord shall have no obligation
to further investigate.
It is agreed that the Tenant's responsibilities related to Hazardous Materials
will survive the expiration or termination of this Lease and that Landlord may
obtain specific performance of Tenant's responsibilities under this Paragraph
47.
48. ASSOCIATION DUES: The Premises leased hereunder is part of the Ardenwood
Property Owner's Association (the "Association"), and is subject to Association
Dues to fund the cost of the Association's obligations and expenses as
authorized under said Agreement. As of the date of this Lease, Tenant's current
prorate share of the Association Dues is currently estimated at $2,468.49 per
year and is subject to adjustment as provided for by said Association Said
Association Dues are payable by Tenant to Landlord as Additional Rent on a
monthly basis throughout the Term of this Lease. Tenant understands that it will
not be a direct member of the Association.
49. TAXES CONTINUED:
A. In addition to and notwithstanding anything to the contrary contained in
Paragraph 9, it is agreed that Tenant shall have the right to request Landlord
to contest, or to have contested, the real estate taxes end/or assessments
levied against the Premises leased hereunder with the
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specific understanding and agreement that any such contest shall in no way and
in no event relieve Tenant from Tenant's responsibility to pay all real estate
taxes and assessments as they appear on the tax xxxx as they become due. In the
event any such tax contest is successful, the proportionate portion of the net
refund, once received by Landlord, relating to real estate taxes and assessments
actually paid by Tenant shall be refunded to Tenant. It is further understood
and agreed that Landlord shall in no event be responsible for any liability or
for any cost or expense incurred by Tenant by reason of Tenant's contest of
such taxes and/or assessments.
B. Notwithstanding anything within Paragraph 9, in the event prior to
the Commencement Date there is an interim or supplemental reassessment of the
Premises based upon the added value of the Improvements, then when Tenant
accepts occupancy of the Premises Tenant shall pay any interim or supplemental
taxes (but no penalties or interest in connection therewith) that have been
levied against the Premises so are attributable to the added value of the
Improvements (as defined in the Construction Letter of even date herewith)
during the period prior to Tenant's occupancy of the Premises. As of the Lease
Commencement Date, Tenant shall be responsible for paying one hundred percent
(100%) of the Real Property Taxes as provided for in Paragraph 9.
C. Notwithstanding anything within Paragraph 9, it is agreed that if
any special assessments for capital improvements are assessed, and if Landlord
has the option to either pay the entire assessment in cash or go to bond, and if
Landlord elects to pay the entire assessment in cash in lieu of going to bond,
the entire portion of the assessment assigned to Tenant's Leased Premises will
be prorated over the same period that the assessment would have been prorated
had the assessment gone to bond.
50. SUBDIVISION: Landlord an Tenant agree that the Premises and the Parcel
outlined in Green on Exhibit A attached hereto are subject to change and/or
modification once the parcel lot lines are adjusted and said revised parcel
dimensions are recorded. The parities agree that Exhibit A shall be replaced
with a revised and corrected Exhibit A-1, indicating any revisions to the site
plan, including specific parking stall locations and/or lot line adjustments.
51. ADDRESS FOR LEASED PREMISES: It is understood that (I) the current
address for the building in which the Premises are located is 0000 Xxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx, and that (ii) the address for the Premises will be
assigned by the City of Fremont (the "City") upon issuance of a building permit
for the Interior Improvements as defined herein. In the event the address
assigned to the Premises is changed by the City, said Lease shall thereafter be
amended to reflect the assigned address for the Premises leased hereunder.
52. OPTION TO EXTEND LEASE FOR FIVE (5) YEARS: Provided Tenant is not in
default (pursuant to Paragraph 19 of the Lease, i.e., Tenant has received notice
and any applicable cure period has expired without cure) in any of the terms,
covenants, and conditions of this Lease Agreement, Landlord hereby grants to
Tenant and Option to Extend this Lease Agreement for an additional five (5) year
period upon the following terms and conditions:
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A. Tenant shall give Landlord written notice of Tenant's exercise of
this Option to Extend not later that twelve (12) months prior to the scheduled
Lease Termination Date, which Termination Date is currently projected to May 31,
2007, in which event the Lease shall be considered extended for an additional
five (5) years subject to the Basic Rental set forth below and with: (i) the
terms and conditions subject to amendment by Landlord (landlord, in its sole and
absolute discretion, may, but is not required to, incorporate its current Lease
provision that are standard in Landlord's leases as of the date of Tenant's
exercise of its Option to Extend); and (ii) this Paragraph 52 deleted. In the
event that Tenant fails to timely exercise Tenant's option as set forth herein
in writing, Tenant shall have no further Option to Extend this Lease, and this
Lease shall continue in full force and effect for the full remaining term
hereof, absent this Paragraph 52.
B. In the event Tenant timely exercises Tenant's Option to Extend as
set forth herein, Landlord shall, within fifteen (15) days after receipt of
Tenant's exercise of option, advise Tenant of the Basic Rental required for the
Extended Term of the Lease. The initial monthly Basic Rent charged during the
Extended Term shall be the higher of: (I) $2.00 per square foot per month or
(ii) an amount equal to the monthly Basic Rent during the last month of the
initial Lease Term. Said initial monthly Basic Rent, once established, shall be
subject to annual adjustment during the Extended Term by, at Landlord's sole and
absolute discretion, either (a) a fixed increase of $0.50 per square foot per
month or (b) the annual increase in the Consumer Price Index. Tenant shall have
five (5) days after receipt from the Landlord of said new Basic Rental in which
to accept said new Basic Rental and enter into written documentation confirming
it. In the event Tenant fails to execute said written documentation confirming
said new Basic Rental for the Extended Term of Lease within said (5) day period,
Tenant shall have no further Option to Extend this Lease, and this Lease shall
continue in full force and effect for the full remaining term hereof absent of
this Paragraph 52, with Landlord having no further responsibility or obligation
to Tenant with respect to Tenant's Option to Extend.
C. The option rights of Tenant under this Paragraph 52, and the
Extended Term thereunder, are granted for Tenant's personal benefit and may not
be assigned or transferred by Tenant, (except to a parent or subsidiary
corporation, or corporation with which Tenant merges or consolidates or the whim
Tenant sells all or substantially all of its assets as provided for in
Paragraph 46A), either voluntarily or by operation of law, in any manner
whatsoever. In the event that Landlord consents to a sublease or assignment
under Paragraph 10, the option granted herein and any Extended Term thereunder
shall be void and of no force and effect, whether or not Tenant shall have
purported to exercise such option prior to such assignment or sublease.
D. INCREASED SECURITY DEPOSIT: In the event the Term of Tenant's Lease
is extended pursuant to this Paragraph 52, Tenant's Security Deposit shall be
increased to equal twice the Basic Rental due for the last month of the Extended
Term (For Example: if the last month's Basic Rental during the Extended Term is
$92,400.00, the revised Security Deposit shall be $184,800.00 ($92,400.00 per
month X2)).
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53. LANDLORD'S RIGHT TO TERMINATE: It is understood that the Premises to be
leased by Tenant are to be constructed by Landlord, and that Landlord is
required to obtain the necessary building permits before construction of said
Premises can commence. Therefore it is agreed that in the event Landlord cannot
obtain all the necessary building permits for said Premises within 180 days from
the date this executed Lease is received by Landlord, that Landlord can
terminate this Lease Agreement without any liability to Tenant, of any type
whatsoever, and that this Lease Agreement will be null and void as of the date
of said cancellation. Landlord agrees to use its best efforts to obtain the
required permits within the aforementioned 1 80-day period.
54. MAINTENANCE OF THE PREMISES: Notwithstanding anything to the contrary in
Xxxxxxxxx 0, Xxxxxxxx shall repair damage to the structural shell, foundation,
and roof structure (but not the interior improvements, roof membrane, or
glazing) of the building leased hereunder at Landlord's cost, Landlord shall
amortize the cost of the repair over the useful life of said repair, and Tenant
shall be responsible for paying to Landlord one hundred percent (100%) of
Tenant's pro rata share of the amortization of said COSI over the full Term
remaining in the Lease at the time the repair is made; provided Tenant has not
caused such damage, in which event Tenant shall be responsible for 100 percent
of any such costs for repair or damage so caused by the Tenant. For Example: In
the event (i) the roof purlin is repaired at a cost of $ 10,000, and (ii) said
repair purlin has a useful life of twenty years, and (iii) Tenant has one year
remaining in its Lease Term al the time said repair was made, Tenant would be
charged its prorate share of $500 ($10,000/20 years x 1 year = $500)) as
Additional Rent, in which case said amount would be due within thirty (30) days
of notice from Landlord. Tenant hereby waives all rights under, and benefits of
subsection I of Section 1932 and Sections 1941 and 1942 of the California Civil
Code and under any similar law, statute or ordinance now or hereafter in effect.
Notwithstanding the foregoing, a crack in the foundation or exterior walls that
does not endanger the structural integrity of the building, or which is not
life-threatening, shall not be considered material, nor shall Landlord be
responsible for repair of same.
In the event the Term of the Lease is extended, pursuant to Paragraph 52
("Option to Extend Lease for Five (5) Years") or by any other agreement between
Landlord and Tenant, Tenant's pro rata share of the earlier repair cost shall be
increased to include the additional amount payable IO Landlord due IO the
Extended Term of the Lease. For Example: In the event: (i) the roof purlin was
repaired as illustrated above; and (ii) Tenant exercises its Option to Extend
this Lease for an additional five year period, Tenant would be liable for an
additional payment to Landlord of $2,500 as Additional Rent. Said payment would
be due in full immediately upon Tenant's exercise of its Option to Extend.
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IN WITNESS WHEREOF, Landlord or Tenant have executed and delivered this
Lease as of the day and year last written below.
LANDLORD: TENANT:
ARRILLAGA FAMILY TRUST VERSANT OBJECT TECHNOLOGY
CORPORATION
a California corporation
By: ____________________________ By:
_____________________________________
Xxxx Xxxxxxxxx, Trustee
Date: ___________________________ Title:
_____________________________________
XXXXXXX X. XXXXX, SEPARATE Type or Print Name: ______________________________
PROPERTY TRUST
By: _____________________________ Date:
___________________________________________
Xxxxxxx X. Xxxxx, Trustee
Date: ____________________________
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MAP OF FACILITY SITE
Exhibit A To lease agreement dated November 25, 1996 by and between the
Arrillaga Family Trust and the Xxxxxxx X. Xxxxx Separate Property Trust, as
Landlord, and Versant Object Technology Corporation, as Tenant.
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PRELIMINARY PLAN
VERSANT OBJECT TECHNOLOGY
BUILDING
Exhibit B To lease agreement dated November 25, 1996 by and between the
Arrillaga Family Trust and the Xxxxxxx X. Xxxxx Separate Property Trust, as
Landlord, and Versant Object Technology Corporation, as Tenant.
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$ 106,259.40
Building: Ardenwood II-I
Date Due: June 1, 1998
PROMISSORY NOTE
THE UNDERSIGNED, Versant Object Technology Corporation, a California
corporation, , hereby promises, covenants and agrees to pay to the Arrillaga
Family Trust and the Xxxxxxx X. Xxxxx Separate Properly Trust, at Santa Clara,
California, the principal sum of ONE HUNDRED SIX THOUSAND TWO HUNDRED FIFTY NINE
AND 40/100 DOLLARS ($ 106,259.40) without interest on or before June 1, 1998.
This sum is final payment of a Security Deposit provided for in accordance with
the Lease Agreement between the parties dated November 25, 1996, for
approximately 54,492+ square feet of space located at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxx. The parties' rights to payment, nonpayment or refund of the
sum due under this Note shall be governed solely by the above Lease Agreement.
IN THE EVENT the undersigned defaults in the timely payment of this
Note, the undersigned shall xxx to holder, in addition to the principal sum due
hereunder, interest thereon at the then existing highest interest rate
chargeable by law from June 1, 1997 until this Note is paid in full.
IN THE EVENT legal action is taken to enforce the provisions of this
Note, the undersigned, does promise, covenant, and agree to pay, in addition to
the principal due hereunder and any interest accrued thereon, attorney fees
and/or court costs incurred by Holder by reason of such enforcement of the
provisions herein contained whether or not such action is prosecuted to
judgement.
THIS NOTE shall be governed and construed according to the laws of the
State of California.
IN WITNESSES WHEREOF, the undersigned have/has executed this Promissory
Note as of the 7th day of February, 1997.
VERSANT OBJECT TECHNOLOGY CORPORATION
a California corporation
By
XXXXXXX X. XXXXX
VICE PRESIDENT
Type or Print Name
Title
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