WATERGATE OFFICE LEASE
WATERGATE TOWER ASSOCIATES,
A California Limited Partnership,
Landlord
And
SCOPUS TECHNOLOGY, INC.,
A California Corporation,
Tenant
TABLE OF CONTENTS
PARTIES; BASIC LEASE PROVISIONS; DEFINED TERMS
Parties
Basic Lease Provisions
Defined Terms
PREMISES; COMMON AREAS; TENANT PARKING
Demise of Premises
Condition of Premises
Common Areas
Tenant Parking
TERM
Period
Term Commencement
Delayed Occupancy
Holding Over
BASE RENT; SECURITY DEPOSIT; OPERATING COSTS; TAXES
Base Rent
Security Deposit
Operating Costs
Taxes Payable By Tenant
Late Charges and Interest
USES
Authorized
Suitability
Insurance
Laws
Nuisance
Rules and Regulations
SERVICES AND UTILITIES
Basic Services by Landlord
Additional Heating and Air Conditioning
Special Apparatuses
Interruption in Services
Tenant's Other Utilities
TENANT'S ALTERATIONS; PROTECTION AGAINST LIENS
Xxxxxxxx's Consent Required
Removal of Tenant's Alterations
Protection Against Liens
MAINTENANCE AND REPAIRS
Xxxxxxxx's Obligations
Xxxxxx's Obligations
INDEMNITY AND EXEMPTIONS OF LANDLORD
Indemnity
Exemption of Landlord From Liability
INSURANCE
Tenant's Insurance
Landlord's Insurance
Subrogation Waiver
ASSIGNMENT AND SUBLETTING
Landlord's Consent Required
Tenant's Application
Required Provisions
Bonus Rent
Fees for Review
No Release of Tenant
Assumption of Obligations
Deemed Transfers
Landlord's Option to Recapture
SUBORDINATION AND ATTORNMENT
Subordination
Attornment
Nonmaterial Amendments
DEFAULT BY TENANT
Acts Constituting Default
Landlord's Remedies
DEFAULT BY LANDLORD
Existence of Default
Mortgagee's Right To Cure
Judgment Against Landlord
CONDEMNATION
Termination Due To Taking
Award For Taking
No Termination Due To Taking
DAMAGE AND DESTRUCTION
Partial Damage - Insured
Partial Damage - Uninsured
Total Destruction
Landlord's Obligations
Waiver by Tenant
DEFINITIONS
"Base Rent"
"Base Year"
"Basic Lease Provisions"
"Bonus Rent"
"Building"
"Commencement Date"
"Common Areas"
"Environmental Damages"
"Environmental Requirements"
"Expiration Date"
"Hazardous Materials"
"Increased Operating Costs'
"Landlord's Work"
"Lease Date"
"Mortgagee"
"Office Complex"
"Operating Costs"
"Overdue Rates"
"Parking Charge"
"Parking Facilities"
"Premises"
"Rules and Regulations"
"Security Deposit"
"Scope of Work"
"Subsequent Year"
"Substantial Completion"
"Taking"
"Tenant Parking"
"Tenant's Share"
"Term"
MISCELLANEOUS PROVISIONS
Estoppel Certificates
Surrender of Premises
Light and Air
Waiver
Attorneys' Fees
Notices
Merger
Substituted Premises
Headings
Time and Applicable Law
Successors and Assigns
Entry by Landlord
Entire Agreement
Severability
Signs
Execution by Landlord
Brokers
Name of building
Nonrecordability of Lease
Construction
Inability to Perform
Authority
Quiet Enjoyment
EXTRA PARKING PERMITS
LETTER OF CREDIT/SECURITY DEPOSIT
RIGHT TO NEGOTIATE LEASE OF ADDITIONAL SPACE
Grant of Right
Notice of Space Requirement
Exercise of Negotiation Right
Limitation of Right
22. TERMINATION OF EXISTING LEASE
WATERGATE OFFICE LEASE
1. PARTIES BASIC LEASE PROVISIONS; DEFINED TERMS
1.1 Parties. This Watergate Office Lease ("Lease") is entered
into in the City of Emeryville, County of Alameda, State of California,
between Watergate Tower Associates, a California limited partnership
("Landlord"), and Scopus Technology, Inc,, a California corporation
("Tenant").
1.2 Basic Lease Provisions. The following Basic Lease Provisions
constitute an integral part of this Lease, and each reference in this
Lease to the Basic Lease Provisions shall mean the provisions set forth
in this Paragraph 1.2. Section references in this Paragraph 1.2 are to
the section in which the particular Basic Lease Provision is first
discussed. In the event of any conflict between the Basic Lease
Provisions and the remainder of the Lease, the latter shall control.
Lease Date: August 24, 1994
Address of Landlord: 0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Address of Tenant: Before Lease Execution:
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
After Lease Execution;
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Section 2:
Premises: Suite 700
Building: Watergate Tower 0
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Premises Rentable Area: 18,539 square feet
Premises Usable Area: 16,406 square feet
Building Rentable Area: 215,978 square feet
Tenant Parking: Forty-nine (49)
Extra Parking: Permits Sixteen (16)
permits subject to Section
19, hereinbelow
Parking Charge: $25.00 per permit
Section 3:
Term: Five (5) years
Commencement Date: October 16, 1994
Expiration Date: October 15, 1999
Section 4:
Base Rent:
October 16, 1994 - October 31, 1994:
$9,722.22
November 1, 1994 - November 30, 1994:
$18,836.80 per month
December 1, 1994 - December 31, 1994:
$23,636.80 per month
January 1, 1995 - September 30, 1995:
$27,577.40 per month
October 1, 1995 - September 30, 1997:
$31,516.34 per month
October 1, 1997 - October 15, 1999:
$32,443.25 per month
Security Deposit: $32,443.25, subject to Section 20 hereinbelow
Base Year: 1995
Tenant's Share: 8.58 percent
1.3 Defined Terms. Words and phrases which are capitalized in this
Lease (other than words which are capitalized solely to donate the
beginning of sentences) are defined terms. The definitions of such words
and phrases are set forth in Section 17 of this Lease.
2. PREMISES COMMON AREAS; TENANT PARKING
2.1 Demise of Premices. on and subject to the terms, covenants and
conditions set forth in this Lease, Landlord demises the Premises to
Tenant and Tenant rents and hires the Premises from Landlord. The usable
and rentable area of the Premises, and the rentable area of the Building,
for all purposes under this Lease, are stipulated to be as specified in
the Basic Lease Provisions. Landlord shall not be liable to Tenant, nor
shall Tenant have any claim against Landlord or defense to the
enforcement of this Lease, if it is determined that the actual rentable
or usable area of the Premises or the rentable area of the Building
differs from that specified in the Basic Lease Provisions.
2.2 Condition of Premises. Except as otherwise expressly provided
in a Scope of Work executed by Landlord and Tenant concurrently with
their execution of this Lease, Tenant shall accept the Premises in an "as
is" condition on the date the Term commences and Landlord shall have no
obligation to improve, alter, remodel or otherwise modify the Premises
prior to Xxxxxx's occupancy. Landlord shall construct or install in the
Premises only the improvements specified in the Scope of Work, The Scope
of Work, if any, will be attached as Exhibit B to this Lease, and ,
subject to events of force majeure and Tenant delays, Landlord shall
cause the Substantial Completion of Landlord's Work pursuant to the Scope
of Work on or before the Commencement Date.
2.3 Common Areas, During the Term, Tenant shall have the
nonexclusive right to use of the Common Areas for their intended and
usual purpose. However, the manner in which the Common Areas are
maintained shall be at the sole reasonable discretion of landlord and use
thereof shall be subject to the Rules and Regulations. Landlord reserves
the right to make alterations, additions or deletions to, or to change
the location of elements of the Common Areas, Building Or Office Complex,
and to use the roof, exterior walls and the area above and beneath the
Premises, together with the right to install, use, maintain and replace
equipment, machinery, pipes, conduits and wiring through the Premises,
which serve other parts of the Building or Office Complex, in a manner
and in locations which do not unreasonably interfere with Xxxxxx's use of
or access to the Premises.
2.4 Tenant Parking. Tenant shall have the right to obtain the
number of parking permits designated as Tenant Parking in the Basic Lease
Provisions, and each such permit shall authorize Tenant or its employees
to park one passenger automobile in the Parking Facilities. Issuance of
such parking permits shall be subject to Tenant's payment of the Parking
Charge for each permit specified in the Basic Lease Provisions, which
Parking Charge shall be payable on the first day of each calendar month
during the Term and may be increased by Landlord at any time, and from
time to time, during the Term upon not less than thirty (30) days' prior
written notice to Tenant. Tenant and its employees shall at all times
observe such terms and conditions and charges as may be established by
Landlord from time to time concerning the operation and use of the
Parking Facilities. Tenant's employees shall not be entitled to park in
areas located in the Parking Facilities designated by Landlord for
reserved parking or for use by visitors to the Office Complex.
3. TERM
3.1 Period. The Term shall be for the period specified in the Basic
Lease Provisions. The Term shall commence on the Commencement Date end
shall end on the Expiration Date, as such dates are determined under
Paragraph 3.2 below, unless sooner terminated pursuant to any provision
of this Lease.
3.2 Term Commencement. The anticipated Commencement Date and the
corresponding Expiration Date are specified in the Basic Lease
Provisions. However, the actual Commencement Date shall be the earlier of
(a) the date Tenant first occupies any part of the Premises, or (b) the
date of Substantial Completion of the Landlord's Work or (c) the date
established by Landlord in the event of a delay by Xxxxxx, as provided in
Paragraph 3.3(b) below; and the Expiration Date shall be adjusted so that
the period between the actual Commencement Date and the Expiration Date
is equal to the Term specified in the Basic Lease Provisions. If the
actual Commencement I-ease Date and the Expiration Date differ from those
inserted in the Base Lease Provisions as of the Lease Date, then promptly
after the Commencement Date Landlord and Tenant shall execute a written
acknowledgment of the Commencement Date and the Expiration Late, and
attach it as Exhibit C to this Lease,
3.3 Delayed Occupancy.
(a) Landlord shall Substantially Complete any Landlord's
Work on or before the Commencement Date specified in the Basic Lease
Provisions, provided, however, that the Commencement Date for purposes of
Landlord's obligation with respect to Landlord's Work shall be extended
one (1) day for each day (i) that the Lease is not fully executed by
August 22, 1994, (ii) that Tenant causes a delay in Landlord's Work, and
(iii) that an event of force majeure delays Landlord's Work. However,
this Lease shall not be void or voidable, nor shall Landlord or its
agents or contractors have any liability to Tenant, by reason of
Landlord's failure to substantially complete Landlord's Work by the
Commencement Date specified in the Basic Lease Provisions, or by reason
of Landlord's failure to deliver possession of the Premises due to any
other cause beyond Landlord's reasonable control, arid postponement of
Tenant's rental obligation prior to delivery of possession of the
Premises shall be Tenant's exclusive remedy and in sole satisfaction of
all claims Tenant might otherwise have by reason of Landlord's failure to
deliver the Premises by the Commencement Date specified in the Basic
Lease Provisions. Notwithstanding the foregoing, if the Premises are not
Substantially Completed on or before the termination date under the
Existing Lease (as defined in Section 22) or the date Tenant's right to
occupy a portion of its existing space on the ninth floor of the Building
under a certain sublease with Preferred Health Network ("Sublease")
expires, provided such delay in Landlord's Work has not been caused by
Tenant and the termination of the Existing Lease or the Sublease, as the
case may be, does not result from Tenant's default, Tenant shall have the
right to continue to occupy its entire existing space on the ninth floor
of the Building on the same terms and conditions as the Existing Lease.
(b) Time is of the essence in connection with the
delivery to Landlord of each and every drawing, plan, specification,
schedule or other item required to be given by Tenant to Landlord or to
be approved by Tenant pursuant to the schedule in and provisions of the
Scope of Work. Accordingly, notwithstanding any contrary provision of
this Lease, if Landlord is delayed in the Substantial Completion of
Landlord's Work as a result of (i) Tenant's failure to approve plans,
specifications, changes, cost estimates and other items within the time
limits specified therefor in the Scope of Work, or (ii) any change by
Tenant in said plans, specifications, or other items after the expiration
of such time limits, or ;iii) any default by Tenant relating to its
obligations hereunder or under the Scope of Work, then, in any or all
such instances and without limitation as to any other right or remedy
available to Landlord, Landlord may under clause (c) of Paragraph 3.2
determine in its sole reasonable discretion that the actual Commencement
Date is the date that Substantial Completion of Landlord's Work would
have occurred but for such delay.
3.4 Holding Over. Tenant shall not be entitled to remain in
possession of the Premises after the Expiration Date or after earlier
termination of this Lease, except with Xxxxxxxx's prior written consent.
Any such continuance of possession with Xxxxxxxx's consent shall
constitute a month-to-month tenancy on all of the terms and conditions of
this Lease, except that the Base Rent shall be 150% of the Base Rent in
effect as of the Expiration Date or the earlier termination date. Any
such continuance in possession without Xxxxxxxx's consent (or after such
consent has been withdrawn upon thirty (30) days' notice to Tenant) shall
constitute an unlawful detention of the Premises; and Tenant shall
indemnify, defend and hold Landlord harmless from all claims, losses or
liability resulting from Xxxxxxxx's inability to timely deliver
possession of the Premises to any succeeding tenant.
4. BASE RENT; SECURITY DEPOSIT; OPERATING COSTS; TAXES
4.1 Base Rent. Tenant shall pay to Landlord as monthly Base Rent
for the Premises, in advance, without deduction, setoff, prior notice or
demand, the sum specified in the Basic Lease Provisions. The first
month's Base Rent shall be paid upon Xxxxxx's execution of this Lease,
and the Base Rent for each calendar month thereafter during the Term
shall be paid on the first day of each such calendar month. If the
Commencement Date occurs ors a day other than the first day of a calendar
month, the Base Rent payable for the first calendar month of the Term
shall be prorated on the basis which the number of days of the Term in
the first month bears to the total number of days in such month; and, in
such case, Tenant shall pay such prorated Base Rent to Landlord on the
Commencement Date, and the first month's Base Rent paid upon execution of
this Lease shall be credited against the Base Rent for the second
calendar month. If the Term ends on a day other than the last day of a
calendar month, the Base Rent payable for the last calendar month of the
Term shall be prorated on the basis which the number of days of the Term
in the last calendar month tears to the total number of days in such
month.
4.2 Security Deposit.
(a) Upon Tenant's execution of this Lease, Tenant shall
deposit with Landlord the sum specified as the Security Deposit in the
Basic Lease Provisions, which shall be held by Landlord as security for
the faithful performance by Tenant of all of the terms, covenants, and
conditions of this Lease, it being expressly understood and agreed that
the Security Deposit is not an advance deposit for rent or a measure of
Landlord's damages in case of Tenant's default. If at any time Tenant's
Base Rent is increased, the Security Deposit shall also be increased by
the same percentage Ds the increase in Base Rent and Tenant shall, within
ten (101 days after receipt of notice of such increase in Base Rent,
deposit cash with Landlord in an amount sufficient to affect such
adjustment.
(b) The Security Deposit may be retained, used or
applied by Landlord to remedy any default by Tenant, to repair damage
caused by Tenant to any part of the Premises or the Building, and to
clean the Premises upon expiration or earlier termination of this Lease,
as well as to reimburse Landlord for any 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 the Security Deposit is so used or applied, Tenant
shall, within ten 110) days after written demand therefor, deposit cash
with Landlord in an amount sufficient to restore the Security Deposit to
the full amount required hereunder, and Xxxxxx's failure to do so shall
be a material breach of this Lease. Landlord shall not be required to
keep the Security Deposit separate from its general funds, and Tenant
shall not be entitled to interest on, or any other compensation for,
Xxxxxxxx's retention of the Security Deposit. Tenant may not elect to
apply any portion of the Security Deposit toward payment of Base Rent or
any other amounts payable by Tenant under this Lease, although Landlord
may elect to do so in the event Tenant is in default or is insolvent, If
Tenant shall fully and faithfully perform every provision of this Lease
to be performed by it, the Security Deposit or any balance thereof shall
be returned to Tenant at Tenant's last known address (or, at Landlord's
option, to the last assignee of -tenant's interest hereunder) within
thirty (30) days after the Term has ended and Xxxxxx has vacated the
Premises.
4.3 Operating Costs. Tenant shall pay to Landlord Xxxxxx's Share
of the Increased Operating Costs as follows:
(a) Landlord shall submit to Tenant before January 1 of
each Subsequent Year, or as soon thereafter as Landlord has sufficient
data, a reasonably detailed statement showing the estimated Increased
Operating Costs for such Subsequent Year, which determination shall be
made by Landlord based upon experience with actual costs and
projections. At the first monthly Base Rent payment date following the
submittal of such statement and at each succeeding monthly rent payment
date thereafter during the Subsequent Year, Tenant shall pay to Landlord
an amount equal to one-twelfth (1112th) of the Increased Operating
Costs. If Landlord does not submit said statement to Tenant prior to
January 1 of any Subsequent Year, Tenant shall continue to pay Tenant's
Share of the Increased Operating Costs at the then existing rate until
such statement is submitted and, thereafter, at the monthly Base Rent
payment date next following the submittal of such statement Tenant shall
pay Tenant's Share of the Increased Operating Costs based on the rate
set forth in such statement plus, if the new rate is greater than the
old rate, the difference accrued from January 1 of such Subsequent Year.
Landlord may revise such estimated Increased Operating Costs at the end
of any calendar quarter.
(b) On or before March 31 of the second and each
succeeding Subsequent Year or as soon thereafter as Landlord has
sufficient data, Landlord shall submit to Tenant a reasonably detailed
statement showing the actual Building Operating Costs paid or incurred by
Landlord during the previous calendar year. If Xxxxxx's Share of the
actual Increased Operating Costs is less than the amount of Tenant's
Share of the estimated Increased Operating Costs for the previous
Subsequent Year theretofore paid by Xxxxxx, Landlord shall credit such
difference against the next Increased Operating Costs payments coming
due. If Xxxxxx's Share of the actual Increased Operating Costs is more
than the amount of Tenant's Share of the estimated Increased Operating
Costs for such previous Subsequent Year theretofore paid by Tenant,
Tenant shall pay to Landlord the full amount of such difference at the
monthly Base Rent payment date next following the submittal of such
statement to Tenant.
(c) If the Expiration Date or the date of earlier
termination of this Lease is other than December 31, the Operating Costs
for both the Base Year and the last Subsequent Year shall be prorated
based on what the number of days in the Term in the last Subsequent Year
bears to 365; and any amounts owed or to be credited pursuant to
Paragraph shall be paid at the time in the last Subsequent Year, or in
the calendar year immediately following the last Subsequent Year, that
such amount is calculated pursuant to Paragraph 4.3(c).
4.4 Taxes Payable By Tenant, Tenant shall pay before delinquency
any and all taxes levied or assessed and which become payable by Tenant
(or directly or indirectly by Landlord) during the Term (excluding,
however, state and .federal personal or corporate income taxes measured
by the income of Landlord from all sources, capital stock taxes, and
estate and inheritance taxes, collectively, "Landlord's Taxes"), whether
or not now customary or within the contemplation of the parties hereto,
which are based upon, measured by or otherwise calculated with respect
to: (a) the gross or net rental income of Landlord under this Lease,
including, without limitation, any gross receipts tax levied by any
taxing authority as a supplemental tax, or any other gross income tax or
excise tax levied by any taxing authority with respect to the receipt of
the rental payable hereunder as a supplemental tax, but specifically
excluding Xxxxxxxx's Taxes; (b1 the value of Tenant's equipment,
furniture, fixtures or other personal property located in the Premises;
(c1 the possession, lease, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises or any
portion thereof; (d) the value of any leasehold improvements, alterations
or additions made in or to the Premises, regardless of whether title to
such improvements, alterations or additions shall be in Tenant or
Landlord; or (e) this transaction or any document to which Tenant is a
party creating or transferring an interest or an estate in the Premises.
4.5 Late Charges and Interest. Ail amounts payable under this Lease
shall be paid in lawful money of the United States of America. Any amount
of Base Rent, Xxxxxx's Share of Increased Operating Costs, Parking
Charges or any other amount payable under this Lease which is not paid
within ten (1 0) days after it is due shall be subject to a late charge
of 5% of the amount unpaid, Any amount due to Landlord that is not paid
when due shall bear interest at the Overdue Rate, except that no interest
shall accrue for the month in which a late charge is assessed. Tenant's
failure to perform any monetary obligations under this Lease shall have
the same consequences as Tenant's failure to pay Base Rent.
5. USES
5.1 Authorized. Tenant shall use the Premises solely for general
office purposes and for no other purpose. Tenant shall not use or permit
or suffer the Premises or any part thereof to be used for any purpose
other than the purpose expressly authorized herein.
5.2 Suitability, Xxxxxx acknowledges that neither Landlord nor any
agent of Landlord has made any representation or warranty with respect to
the Premises, the Building or the Office Complex, or with respect to the
suitability of same for the conduct of Xxxxxx's business, except as
expressly provided in this Lease. Xxxxxx's acceptance of possession of
the Premises shall conclusively establish that the foregoing were at such
time in satisfactory condition.
5.3 Insurance. Tenant shall not do or suffer anything to be done in
or about the Premises, nor shall Tenant bring or allow anything to be
brought into the Premises, which will in any way increase the rate of any
fire insurance or other insurance upon the Building or its contents,
cause a cancellation of said insurance or otherwise affect said insurance
in any manner: provided, however, that Xxxxxx's business as a computer
software vendor, in particular Tenant's proposed electrical usage as
shown on the Final Plans, shall be deemed to comply with this Section
5.3,
5.4 Laws. Tenant shall not do or suffer anything to be done in or
about the Premises which will in any way conflict with any law, statute,
ordinance or other governmental rule, regulation or requirement now in
force or which may be subsequently enacted or promulgated. Tenant shall,
at its sole cost and expense, promptly comply with each and all of said
governmental measures and also with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted to deal
with the condition, use or occupancy of the Premises, excluding
structural changes not related to or affected by Tenant's alterations,
additions or improvements. Without limiting the generality of the
foregoing, Tenant will maintain throughout the Term a copy of the most
current list of chemicals known to the State of California to cause
cancer or reproductive toxicity, as published by the State Health and
Welfare Agency in accordance with the Safe Drinking Water and Toxic
Enforcement Act of 1986 ("Proposition 65"). Tenant will monitor the
chemicals Tenant maintains on the Premises and will comply with both the
warning requirements and the discharge prohibitions of Proposition 65 for
all chemicals on the Premises that appear on such list. The judgment of
any court of competent jurisdiction or the admission 8f Tenant in any
judicial action, regardless of whether Landlord is a party thereto, that
Xxxxxx has violated any of said governmental measures or requirements
shall be conclusive of that fact as between Landlord and Tenant.
5.5 Nuisance. Tenant shall not place or permit to be placed on any
floor a load exceeding the floor load which such floor was designed to
carry. Tenant also shall not do or suffer anything to be done in or about
the Premises which will in any way obstruct or interfere with the rights
of other tenants or occupants of the Building or injure or annoy said
tenants or occupants, nor shall Tenant use or suffer the Premises to be
used for any unlawful purposes, In no event shall Tenant cause or permit
any nuisance in or about the Premises, and no loudspeakers or similar
devices shall be used without the prior written approval of Landlord,
which approval may be withheld in Landlord's sole discretion. Tenant
shall not commit or suffer to be committed any waste in or upon 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 Building.
5.6 Rules and Regulations. Tenant shall comply with the Rules and
Regulations for the Building, together with all modifications and
additions thereto adopted by Landlord from time to time. If there is any
conflict between the Rules and Regulations and the provisions of this
Lease, the provisions of this Lease shall prevail. Subject to Xxxxxx's
right to quiet enjoyment of the Premises under Section 18.23, Landlord
shall not be responsible to Tenant for the nonperformance of any of the
Rules and Regulations by any other tenants or occupants of the Building,
6. SERVICES AND UTILITIES
6.1 Basic Services by Landlord. Provided Tenant is not in default
under this Lease, and subject to the provisions elsewhere in this Lease
and to the Rules arid Regulations of the Building, Landlord shall furnish
the Premises with: (a) water, sewage and electricity suitable in
Landlord's judgment for the intended use of the Premises and for the
operation of Tenant's business as a computer software vendor, provided
Xxxxxx's electrical usage does not exceed Xxxxxx's proposed usage as
shown on the Final Plans; (b) heat and air conditioning between 8:00 a.m.
and 5:00 p.m. on days other than Saturdays, Sundays arid generally
recognized holidays, in an amount reasonably required in Landlord's
judgment for the comfortable occupation of the Premises; (c) elevator
service, which shall mean service by non-attended automatic elevators or
elevators with attendants, either or both, at the option of Landlord; and
(d) daily janitorial service (five nights per week) similar to that which
is provided in comparable office buildings in the Oakland/Emeryville
area. Landlord shall maintain the Common Areas in a clean and orderly
manner and in a good state of repair,
6.2 Additional Heating and Air Conditioning. Landlord shall use
reasonable efforts to provide additional or after-hours heating or air
conditioning at Tenant's request, provided Tenant pays to Landlord the
cost of such services as determined solely by Landlord based upon
Landlord's reasonable estimates of the costs of such additional services,
plus a reasonable charge (not to exceed ten percent (10%) of the cost of
such services) for Landlord's overhead expense. Tenant shall keep all
draperies closed when necessary because of the sun's position and at all
times reasonably cooperate with Landlord and abide by all the regulations
and requirements which Landlord may prescribe from time to time for the
proper functioning and protection of the heating, ventilating and air
conditioning systems. Whenever heat-generating machines or equipment or
lighting used in the Premises by Tenant affect the temperature otherwise
maintained by the air conditioning system, Landlord shall have the right
to install any machinery and equipment Landlord deems reasonably
necessary to restore the temperature balance in any affected part of the
Building, including but not limited to modifications to the Building's
air conditioning system or installation of supplementary air conditioning
units. Tenant shall pay the cost thereof, including installation and any
additional costs of operation and maintenance occasioned thereby, to
Landlord upon demand.
6.3 Special Apparatus. Tenant shall not, except with Xxxxxxxx's
prior written consent, which consent may be withheld in Landlord's sole
discretion, either: (a) use any apparatus or device in the Premises which
will increase the amount of cooling, ventilation, electricity or water
supplied to the Premises beyond that provided as part of Landlord's Work;
or (b) connect with electric current or water pipes any device or
apparatus for the purpose of using electrical current or water, except as
such connections now exist or as may be provided for in the Scope of
Work. If Landlord consents to the use and/or connection of any apparatus
or device described in clauses (a) and (b) above, Landlord may install
meters or similar monitoring devices to measure the amount of utilities
consumed by such apparatus or devices and Tenant shall pay for the cost
of all work and materials required for the installation, maintenance and
use of such meters and monitoring devices. If Landlord elects not to
install a special meter or monitoring device, Landlord shall determine
the amount of additional utilities and resources consumed by such
apparatus tar device based upon Landlord's reasonable estimates and best
judgment, and such determination, made in good faith by Landlord, shall
be conclusive on Tenant. Tenant shall pay to Landlord promptly upon
demand the cost of any excess use of utilities and resources based on the
rates charged by the local public utility company or other supplier
furnishing same, plus any additional expense incurred by Landlord in
keeping account of the foregoing and administering same.
6.4 Interruption In Service. Landlord shall use diligent efforts to
remedy any interruption in the furnishing of services and utilities.
However, Landlord shall not be in default under this Lease or liable for
any damages directly or indirectly arising from, nor shall the rent be
abated except as provided below by reason of, any failure to provide or
any reduction in any of the above services or utilities if such failure
or reduction is caused by the making of repairs or improvements to the
Premises or the Building, the installation of equipment, acts of God or
the elements, labor disturbances of any character, or any other events or
conditions whatsoever beyond the reasonable control of Landlord, or
rationing or restrictions on the use of said services and utilities due
to energy shortages or other causes, whether or not any of the above
result from acts or omissions of Landlord. Furthermore, Landlord shall be
entitled to cooperate voluntarily in a reasonable manner with the efforts
of national, state or local governmental bodies or utilities suppliers in
reducing energy or other resources consumption. The failure of Landlord
to provide the utilities and services specified in this Section B shall
not constitute a constructive or other eviction of Tenant. If any
interruption in the furnishing of utilities or services to the Premises
materially, adversely affects Tenant's use and occupancy of the Premises,
Tenant shall be entitled to an abatement of Base Rent in proportion to
the interference with Xxxxxx's use and occupancy, only if, and to the
extent that, such interruption continues for more than thirty (30) days.
6.5 Tenant's Other Utilities. Tenant shall pay prior t0
delinquency for all telephone and all other materials and services not
expressly required to be provided by Landlord, which may be furnished to
or used in, on or about the Premises during the Term.
7. TENANT'S ALTERATIONS; PROTECTION AGAINST LIENS
7.1 Landlord's Consent Required, Tenant shall not make or permit to
be made any alterations, additions or improvements to the Premises or any
part thereof, without first obtaining Landlord's written consent. When
applying for such consent, Tenant shall, if required by Landlord, furnish
complete plans and specifications for such alterations, additions or
improvements. All alterations, additions or improvements to the Premises
shall be performed by contractors selected and supervised by Landlord for
Xxxxxx's account and at Tenant's sole cost and expense. Within ten (101
days after receipt of a written statement from Landlord, Tenant shall
reimburse Landlord for all reasonable costs arising in connection with
Xxxxxxxx's approval of plans and specifications and supervision of
contractors. Landlord shall have the right to require that any contractor
performing alterations, improvements or additions to the Premises shall,
prior to commencement of any work, provide Landlord with a performance
bond and labor and materials payment bond in the amount of the contract
price for the work, naming Landlord and Tenant (and any other persons
designated by Landlord as co-obligees). All alterations, additions,
fixtures and improvements, including without limitation all improvements
made pursuant to a Scope of Work, whether temporary or permanent in
character, made in or upon the Premises either by Landlord or Tenant,
shall at once belong to Landlord and become part of the Premises and
shall remain on the Premises without compensation of any kind to Tenant,
unless Landlord requires their removal under Paragraph 7.2 below. Tenant
shall carry insurance as required by Section 10 covering any
improvements, alterations or additions to the Premises made or paid for
by Tenant except for Landlord's Work described in the Scope of Work, it
being understood and agreed that none of such alterations, additions or
improvements shall be insured by Landlord nor shall Landlord be required
under any provision of this Lease to repair, reconstruct or reinstall any
such alterations, additions or improvements. Movable furniture and
equipment which are removable without material damage to the Building or
the Premises shall remain the property of Tenant.
7.2 Removal of Tenant's Alterations. Notwithstanding any contrary
provision in this Lease, Tenant shall, upon Xxxxxxxx's written request
made prior to or within thirty (30i days following the Expiration xxxx or
the earlier termination of this Lease, promptly remove any alterations,
additions, fixtures or improvements designated by Landlord to be removed
and repair any damage to the Premises resulting from such removal.
Landlord may, in connection with any such removal which might in
Landlord's judgment involve damage to the Promises, require that such
removal be performed by a bonded contractor or other person for whom a
bond satisfactory to Landlord has been furnished covering the cost of
repairing the anticipated damage.
7.3 Protection Against Liens. Tenant shall keep the Premises, the
Building and the Common Areas free from any liens arising out of work
performed, materials furnished, or obligations incurred by Tenant and
shall indemnify, hold harmless and defend Landlord from any liens and
encumbrances arising out of any work performed or materials furnished by
or at the direction of Tenant, In the event that Tenant shall not,
within twenty (201 days following written notice of the imposition of
any such lien, cause such lien to be released of record by payment or
posting of a proper bond, Landlord shall have, in addition to all other
remedies provided in this Lease and by law, the right, but no
obligation, to cause the same to be released by such means as Landlord
shall deem proper, including payment of the claim giving rise to such
lien. All such sums paid by Xxxxxxxx and all expenses incurred by it in
connection therewith, including attorneys' fees and costs, shall be
payable by Tenant upon demand with interest at the Overdue Rate from the
date such sums are paid or expenses incurred by Landlord. Landlord shall
have the right at all times to post and keep posted on the Premises any
notices permitted or required by law, or which Landlord shall deem
proper, for the protection of Landlord and the Premises, and any other
party having an interest therein, from mechanics' and materialmen's
liens, and Tenant shall give to Landlord at least ten (101 business days'
prior written notice of the day of commencement of any work relating to
alterations, additions or improvements in or to the Premises.
8. MAINTENANCE AND REPAIRS
8.1 Landlord's Obligations. Subject to Sections 15 and 16, Landlord
shall maintain in good order, condition and repair the structural
portions of the Building including the exterior walls, underflooring and
roof, the basic heating, ventilating, air conditioning, plumbing,
electrical, arid fire detection and security systems, and all other
portions of the Premises not the obligation of Tenant or any other tenant
in the Building. However, if any such maintenance or repair becomes
necessary in whole or in part because of wrongful acts or omissions by
Tenant or Tenant's employees, agents, invitees or customers, or because
of a breaking and entering, Tenant shall pay the entire cost thereof upon
demand. Landlord shall not be liable to Tenant, and rent shall not be
abated, for any failure by Landlord to maintain and repair areas which
are being used in connection with construction of improvements, or for
any failure to make any repairs or perform any maintenance unless such
failure shall continue for an unreasonable time after written notice of
the need therefor is given to Landlord by Tenant. Landlord shall also not
be liable under any circumstances for loss of profits or for injury to or
interference with Xxxxxx's business arising from or in connection with
the making of or the failure of Landlord to make any repairs,
maintenance, alterations or improvements in order to make any repairs,
maintenance, alterations or improvements in or to any portion of the
Building or the Common Areas or in or to fixtures, appurtenances and
equipment therein. Notwithstanding the foregoing. if Landlord fails to
make any repairs or perform any maintenance within a reasonable time
after written notice of the need therefor from Tenant to Landlord, Tenant
may, after giving Landlord at least ten (10) days' prior written notice
of its intent to do so, make necessary repairs or perform necessary
maintenance, provided, however, (a) Tenant's work does not affect
structural elements of the Building or Building systems, and (b) so long
as Landlord is diligently attempting to make the necessary repairs or
perform the necessary maintenance, Tenant shall have no right of
"self-help."
8.2 Tenant's Obligation,
(a) Tenant shall maintain the Premises in good order,
condition and repair including the interior surfaces of the ceilings,
walls and floors, all doors, interior windows, and all special plumbing
pipes, valves and fixtures, electrical wiring, panels, switches, and all
other fixtures and equipment installed for the use of the Premises by or
on behalf of Tenant, including, without limitation, the "PBX Switchboard
Area" and "Computer Labs" shown on the Final Plans (as defined in the
Scope of Work. Tenant expressly waives the benefit of any statute,
ordinance or judicial decision now or hereafter in effect which would
otherwise afford Tenant the right to make repairs at Landlord's expense
or to terminate this Lease because of Landlord's failure to keep the
Premises in good order, condition and repair,
(b) Upon the Expiration Date or the earlier termination
of this Lease, Tenant shall surrender the Premises in the same condition
as received, except for ordinary wear and tear and damage by fire,
earthquake, acts of God or the elements, not caused by wrongful act or
omission of Tenant or Tenant's agents, and shall promptly remove or cause
to be removed, at Tenant's expense, from the Premises and the Building
any signs, notices and displays placed by Tenant.
(c) Tenant shall repair any damage to the Premises or
the Building caused by or in connection with the removal of any articles
of personal property, business or trade fixtures, machinery, equipment,
cabinetwork, furniture, movable partitions or permanent improvements or
additions, including without limitation, repairing the floor and patching
and painting the walls where required by Landlord to Landlord's
reasonable satisfaction, but excluding any damage caused by reasonable
use. Tenant shall indemnify Landlord against any loss or liability
resulting from delay by Xxxxxx in so surrendering the Premises, including
without limitation, any claims made by any succeeding tenant reasonably
founded on such delay.
(d) Tenant shall do all acts required to comply with all
applicable laws, ordinances, regulations and rules of any public
authority relating to Tenant's use and occupancy of the Premises.
(e) If Tenant fails to maintain the Premises in good
order, condition and repair, or to comply with applicable laws,
ordinances, regulations or rules, Landlord shall give Tenant written
notice to do such acts as are reasonably required to satisfy its
obligations under this paragraph. If Tenant fails to promptly commence
such work and diligently prosecute it to completion, Landlord shall have
the right after first giving Tenant at least ten (10) days' written
notice (except in an emergency), but no obligation, to do such acts and
expend such funds as are reasonably required to perform such work. Any
amount so expended by Landlord shall be paid by Tenant promptly after
demand with interest at the Overdue Rate from the date of such work.
Landlord shall have no liability to Tenant for any damage, inconvenience
or interference with the use of the Premises by Xxxxxx as a result of
performing any such work.
9. INDEMNITY AND EXEMPTIONS OF LANDLORD
9.1 Indemnity. Except as set forth herein, Tenant shall indemnify,
hold harmless, and defend Landlord against arty and all claims of
liability for any death or injury to any person or damage to any property
whatsoever occurring in, on or about the Premises or any part thereof, or
occurring in, on or about any of the Common Areas, to the extent such
injury or damage is cause by the act, negligence, fault or omission of
any duty with respect to the same by Tenant, its agents, contractors,
employees, invitees or customers. Tenant shall further indemnify, hold
harmless and defend Landlord from and against any and all claims, actions
and liabilities arising from (a) any breach or default in the performance
of any obligation on Tenant's part to be performed under this Lease, or
(b) arising from any act or negligence of Tenant, or any of its agents,
contractors, invitees or employees, or (c) any Environmental Damages
arising from the presence of Hazardous Materials upon, within or about
the Premises due to any act or omission of Tenant or any of its agents,
contractors, invitees or employees, or Id) violation of any Environmental
Requirements pertaining to the Premises or the activities therein, and
(e) from and against all costs, attorneys' fees, expenses and liabilities
incurred in the defense of any such claim, action or liability, and any
proceeding brought thereon. In case any action or proceeding be brought
against Landlord by reason of any such claim, Tenant, upon notice from
Landlord, shall defend the same at Tenant's expense by counsel reasonably
satisfactory to Landlord; provided, however, that Tenant shall not be
liable for damage to property or death or injury to persons) occasioned
by the gross negligence or intentional misconduct of Landlord or its
agents or employees unless covered by insurance Tenant is required to
provide.
9.2 Exemption of Landlord From Liability. Tenant hereby assumes all
risk of damage to property or injury to persons in, upon or about the
Premises from any cause other than the active negligence or intentional
misconduct of Landlord and its agents or employees. Without limiting the
generality of the foregoing, Landlord shall not be liable for injury or
damage which may be sustained by the person, goods, wares, merchandise or
property of Tenant, its employees, invitees or customers, or any other
person in or about the Premises caused by or resulting from fire, steam,
electricity, gas, water or rain, which may leak or flow from or into any
part of the Premises, or from the breakage, leakage, obstruction or other
defects of the pipes, sprinklers, wires, appliances, plumbing, heating,
air conditioning or lighting fixtures of the same, whether the damage or
injury results from conditions arising upon the Premises or upon other
portions of the Building from other sources. Landlord shall not be liable
for any damages arising from any act or omission of any other tenant or
occupant of the Building except to the extent caused by the gross
negligence or intentional misconduct of Landlord.
10. INSURANCE
10.1 Tenant's Insurance.
(a) At all times during the Term Tenant shall maintain
in effect policies of casualty insurance covering (i) all alterations,
additions or improvements in, on or to the Premises as may be made or
paid for by Tenant (except for Landlord's Work described in the Scope of
Work), and (11) al( trade fixtures, merchandise and other personal
property from time to time in, on or upon the Premises, in an amount not
less than their actual replacement cost, providing protection against any
peril included within the classification of "Fire and Extended Coverage"
together with insurance against sprinkler damage, vandalism and malicious
mischief, including cost of debris removal and demolition. Replacement
cost for purposes hereof shall be determined by mutual agreement, or
failing such agreement, by an accredited appraiser selected by Landlord,
with the cost of such appraisal to be borne by Tenant. The proceeds of
such insurance shall be used for the repair or replacement of the
property so insured. Upon termination of this Lease following a casualty
as set forth in Section 16, the proceeds under clause (i) above shall be
paid to Landlord, and the proceeds under clause (ii) above shall be paid
to Tenant.
(b) At all times during the Term Tenant shall maintain
in effect workers' compensation insurance and comprehensive public
liability and property damage insurance adequate to protect Landlord
against liability for injury to or death of any person or loss or injury
to any property in connection with the activities of Tenant in, on or
about the Premises or with the use, operation or condition of the
Premises. Such insurance at all times shall afford combined single limit
coverage in an amount of not less than Two Million Dollars ($2,000,000).
The limits of such insurance shall not limit the liability of Tenant
under this Lease. All public liability and property damage policies shall
contain a provision that Landlord, although named as an insured, shall
nevertheless be entitled to recovery under said policies for any loss
occasioned to it, its servants, agents or employees by reason of Tenant's
negligence.
(c) All insurance required to be carried by Tenant
hereunder shall be issued by responsible insurance companies acceptable
to Landlord and any Mortgagee. All policies of insurance provided for in
this Lease shall be issued by insurance companies licensed to do business
in the State of California, with general policy holder's rating of not
less than "A" and a financial rating of not less than "Class X" as rated
in the most current available "Best's Insurance Reports,' Each policy
shall name Landlord and at Landlord's request any Mortgagee as an
additional insured, as their respective interests may appear, and a
duplicate original of all policies or certificates evidencing the
existence and amounts of such insurance shall be delivered to Landlord by
Tenant at least ten (10) days prior to Tenant's occupancy of the
Premises. All policies of insurance delivered to Landlord must contain a
provision that the company writing said policy will give Landlord thirty
(30) days' written notice in advance of any cancellation or lapse of or
any change in such insurance. All public liability, property damage and
other casualty insurance policies shall be written as primary policies,
not contributing with, and not in excess of coverage which Landlord may
carry. Tenant shall furnish Landlord with renewals or "binders" of any
such policy at least thirty (301 flays prior to the expiration thereof.
If Tenant does not procure and maintain such insurance, Landlord may (but
shall not be required to) obtain such insurance on Tenant's behalf and
charge Tenant the premiums therefor which shall be payable upon demand,
and no such action by Landlord shall constitute a waiver of Tenant's
default hereunder. Tenant may carry such insurance under a blanket
policy, provided such blanket policy expressly affords the coverage
required by this Lease by a Landlord's protective liability endorsement
or otherwise.
(d) Every five (5) years during the Term or whenever
Tenant materially improves or alters the Premises, Tenant shall increase
the policy limits for the insurance to be carried by Tenant under this
Section 10 to such amounts as Landlord reasonably determines are
appropriate.
10.2 Landlord's Insurance. At all times during the Term Landlord
shall maintain in effect a policy or policies of insurance covering the
Building in an amount not less than ninety percent 190%) of full
replacement cost (exclusive of the cost of excavations, foundations,
footings and all tenant improvements constructed at the request or cost
of Tenant, but inclusive of the cost of building standard tenant
improvements) from time to time during the Term, providing protection
against any peril generally included in the classification "Fire and
Extended Coverage" together with insurance against sprinkler damage,
vandalism and malicious mischief. Landlord's obligation to carry the
insurance provided for herein may be brought within the coverage of any
blanket policy or policies of insurance carried and maintained by
Landlord. In addition to the coverage required by this paragraph,
Landlord shall be entitled to procure (and include the premiums therefor
in Operating Costs) such other types of insurance and in such amounts as
Landlord may deem to be necessary or appropriate.
10.3 Subrogation Waiver. Landlord and Tenant each hereby waive any
and all rights of recovery against the other or against the officers,
partners, employees, agents and representatives of the other, on account
of loss or damage of such waiving party or its property, or the property
of others under its control, to the extent that such loss or damage is
insured against under any fire and extended coverage insurance policy
which either may have in force at the time of such loss or damage. Tenant
shall, upon obtaining the policies of insurance required under this
Lease, give notice to its insurance carriers) that the foregoing mutual
waiver of subrogation is contained in this Lease. The waivers set forth
herein shall be required and effective only to the extent such waivers
are available from each party's insurer without additional premium; if an
extra charge is incurred to obtain such waiver, it shall be paid by the
party in whose favor the waiver runs within fifteen (15) days after
written notice from the other party, and, if not so paid, such other
party's waiver under this paragraph shall be neither required nor
effective.
11. ASSIGNMENT AND SUBLETTING
11.1 Landlord's Consent Required. Tenant shall not sell, assign,
mortgage, pledge, hypothecate, encumber or otherwise transfer this Lease
or any interest therein, and shall not sublet the Premises or any part
thereof, or suffer or permit the Premises or any part thereof to be
occupied by any other person (the agents, employees, and invitees of
Tenant excepted), without the prior written consent of Landlord in each
instance; and any attempt to do so without such consent shall be voidable
and, at Landlord's election, shall constitute a noncurable default under
this Lease. No interest of Tenant in this Lease or the Premises shall be
assignable by operation of law. Subject to the terms and conditions
contained in this section, Landlord shall not unreasonably withhold its
consent to a voluntary assignment of this Lease or a subletting of the
Premises.
11.2 Tenant's Application If Tenant desires at any time to assign
this Lease or to sublet the Premises or any portion thereof, Tenant shall
submit to Landlord at least thirty (30) days prior to the proposed
effective date of the assignment or sublease, in writing: (a) a notice of
intent to assign or sublease, setting forth the proposed effective date
thereof; (b) the name of the proposed assignee or subtenant; (c) the
nature of the proposed assignee's or subtenant's business to be carried
on in the Premises; (d) the terms and provisions of the proposed
assignment or sublease; and (e) such financial information as Landlord
may request concerning the proposed assignee or subtenant, including
recent financial statements and bank references. At the time of Xxxxxx's
application to assign the Lease, Tenant may also request Landlord in
writing to be released from liability under this Lease, which request may
or may not be granted in Xxxxxxxx's sole discretion.
11.3 Required Provisions. All assignment or sublease agreements
shall (a) contain such terms as are described in Tenant's notice under
Paragraph 11.2 above or as otherwise agreed by Landlord, (b) prohibit
further assignments or subleases except with Xxxxxxxx's written consent,
(c) impose the same obligations and conditions on the assignee or
sublessee as are imposed on Tenant by this Lease (except as to rent and
term or as otherwise agreed by Landlord), (d) be expressly subject and
subordinate to each and every provision of this Lease, (e) have a term
that expires on or before the Expiration Date, and (f) provide that
Tenant and/or the assignee or sublessee shall pay Landlord the amount of
any additional costs or expenses incurred by Landlord for repairs,
maintenance or otherwise as a result of any change in the nature of
occupancy caused by the assignment or sublease.
11.4 Bonus Rent. Landlord shall be entitled to receive all Bonus
Rent payable in connection with any assignment or sublease. Within
fifteen (15) days after written request by Landlord, Tenant shall
provide and certify to Landlord all financial information required for
the calculation of Bonus Rent.
11.5 Fees for Review. If Landlord retains the services of an
attorney to review any aspect of the proposed assignment or sublease
transaction, Tenant shall pay to Landlord all attorneys' fees reasonably
incurred by Landlord in connection therewith, Tenant shall pay such
attorneys' fees to Landlord within thirty (30) days after written
request therefor.
11.6 No Release of Tenant. Unless Landlord has specifically
released Tenant in writing from all obligations under the Lease, no
consent of landlord to any assignment or subletting by Tenant shall
relieve Tenant of the obligations to be performed by Tenant under this
Lease, whether accruing before or after such assignment, or subletting,
and notwithstanding any subsequent modification, extension or renewal of
this Lease made with or without Tenant's consent. The consent by Landlord
to any assignment, transfer or subletting shall not relieve Tenant from
the obligations to obtain Landlord's express prior written consent to any
subsequent or other transfer or subletting. The acceptance by Landlord of
payment from any other person shall not be deemed to be a waiver by
Landlord of any provision of this Lease or to be a consent to any
transfer or sublease, or to be a release of Tenant from any obligation
under this Lease. If the Premises or any part thereof is sublet or
occupied by any person other than Tenant, Landlord may, after default by
Tenant, collect the rent from any such transferee, subtenant or occupant
and apply the net amount collected to the rent reserved herein, and no
such action by Landlord shall be deemed a consent to such transfer,
sublease or occupancy.
11.7 Assumption of Obligations. Each assignee of Tenant shall
assume all obligations of Tenant under this Lease and shall be and remain
liable jointly and severally with Tenant (unless Landlord has
specifically released Tenant in writing from all obligations under the
Lease) for the payment of the rent and the performance of all the terms,
covenants, conditions and agreements herein contained on Tenant's part to
be performed for the Term. No assignment shall be binding on Landlord
unless the assignee or Tenant delivers to Landlord a counterpart of the
assignment instrument in recordable form which contains a covenant of
assumption by the transferee satisfactory in substance and form to
Landlord, consistent with the requirements of this section.
The failure or refusal of any assignee t0 execute such instrument of
assumption shall not release or discharge the assignee from its liability
to Landlord hereunder. Landlord shall have no obligation whatsoever to
perform directly any duty to or respond directly to any request from any
sublessee, it being the obligation of Tenant to administer the terms of
its subleases; provided, however, Landlord shall remain liable to Tenant
to perform all of Landlord's obligations under this Lease.
11.8 Deemed Transfers. If Tenant is a privately held corporation,
or is an unincorporated association or partnership, the transfer,
assignment or hypothecation of any stock or interest in such
corporation, association or partnership in the aggregate from the Lease
Date in excess of fifty percent (50%) shall be deemed an assignment or
transfer within the meaning of this section.
Tenant may assign this Lease or sublet the Premises or any part thereof
without Landlord's prior written consent to any corporation which
controls Tenant, is controlled by Tenant, or is under common control with
Tenant or to any entity resulting from any reorganization, merger or the
sale of substantially all of Tenant's stock, provided Tenant gives
Landlord at least thirty (301 days' prior written notice of such
subletting or assignment; and such subletting or assignment shall not
release or discharge Tenant from any liability under this Lease.
11.9 Landlord's Option t Recapture. Landlord reserves the option,
to be exercised by giving notice to Tenant within fifteen (151 days after
receipt of Xxxxxx's notice of intent to assign of sublease to recapture
the portion of the Premises described in Xxxxxx's notice for the
remainder of the Term, and to terminate this Lease with respect to such
recaptured Premises. The effective date of such recapture and termination
shall be as specified in Landlord's notice of exercise of its recapture
option, but shall not be less than thirty (301 days nor more than sixty
(601 days after the delivery of such notice. The option to recapture
reserved to Landlord hereunder shall also arise in the event Tenant
shall, voluntarily or involuntarily, sell, assign, mortgage, pledge,
encumber or otherwise transfer this Lease or any interest herein, or
sublet the Premises or any portion thereof, or suffer or permit the
Premises to be occupied by any third person (the agents, employees,
invitees and customers of Tenant excepted), without first obtaining the
written consent of Landlord and in such event the recapture option shall
apply to the portion of the Premises so affected and be exercisable but
Landlord at any time after the occurrence of the event for which
Xxxxxxxx's consent was required by not obtained by Xxxxxx. If this Lease
is terminated pursuant to Landlord's recapture option with respect to
only a portion of the Premises, the Base Rent required under this Lease
and Tenant's Share shall be adjusted proportionately based on the
rentable square footage retained by Tenant and the rentable square
footage of the Premises leased by Tenant immediately prior to such
recapture and cancellation, and Landlord and Tenant shall thereupon
execute an amendment of this Lease in accordance therewith. If Landlord
so recaptures a portion of the Premises, it shall construct and erect at
is sole cost such partitions as may be required in Landlord's and
Tenant's reasonable judgment to sever the space retained by Xxxxxx from
the space recaptured by Landlord; provided, however, that Tenant shall
bear the cost of painting, covering or otherwise decorating the surfaces
of such partitions which face the remaining Premises. Landlord may,
without limitation, lease the recaptured portion of the Premises to the
proposed subtenant or assignee, on the same or different terms as were
proposed by Xxxxxx, without liability to Tenant.
12. SUBORDINATION AND ATTORNMENT
12.1 Subordination. Upon the written request of Landlord or any
Mortgagee, Tenant will in writing subordinate its rights under this Lease
to the lien of any mortgage or deed of trust now or hereafter in force
against the Premises, the Building or the underlying land and to all
advances made or hereafter to be made upon the security thereof, and to
all extensions, modifications and renewals thereunder. Tenant shall also,
upon Xxxxxxxx's request, subordinate its rights hereunder t0 any ground
or underlying lease which may now exist or hereafter be executed
affecting the Building and/or the underlying land. Tenant shall have the
right to condition its subordination upon the execution and delivery of
an attornment and nondisturbance agreement, as described in Paragraph
12.2, between the Mortgagee or the lessor under any such ground or
underlying lease and Tenant Tenant shall not subordinate its rights
hereunder to any lien other than that of a first mortgage or first deed
of trust, except with the prior written consent of the Mortgagee holding
such first mortgage or deed of trust.
12.2 Attornment. Upon the written request of the Landlord or any
Mortgagee or any lessor under a ground or underlying lease, Tenant shall
attorn to any Mortgagee or lessor, provided such Mortgagee or lessor
agrees that if Tenant is not in default under this Lease, Tenant's
possession of the Premises in accordance with the terms of this Lease
shall not be disturbed, Such agreement shall provide, among other things,
(a) that this Lease shall remain in full force and effect, (b) that
Tenant pay rent to said Mortgagee or lessor from the date of said
attornment, (c) that said Mortgagee or lessor shall not be responsible to
Tenant under this Lease except for obligations accruing subsequent to the
date of such attornment, and (d) that Tenant, in the event of foreclosure
or a deed in lieu thereof or a termination of the ground or underlying
lease, will enter into a new lease with the Mortgagee, lessor or other
person having or acquiring title on the same terms and conditions as this
Lease and for the balance of the Term.
12.3 Nonmaterial Amendments. If any lender should require any
modification of this Lease as a condition of loans secured by a lien on
the Premises, the Building or the land underlying the Building, or if any
such modification is required as a condition to a ground or underlying
lease, Tenant will not unreasonably withhold its approval or execution of
any such modifications, promptly after request by Landlord provided no
such modification shall relate to the rent payable hereunder, the length
of the Term or otherwise materially change the rights or obligations of
Landlord or Tenant.
13. DEFAULT BY TENANT
13.1 Acts Constituting Default. In addition to the events specified
as a default elsewhere in this Lease, the failure of Tenant to perform
each covenant made under this Lease, or any abandonment of the Premises
by Tenant, shall constitute a default hereunder. However, Landlord shall
not commence any action to terminate Xxxxxx's right of possession as a
consequence of a default until any period of grace with respect thereto
has elapsed; provided, that any such period of grace shall be in lieu of
and not in addition to the period during which Tenant may cure such
default following the delivery of notice pursuant to California Code of
Civil Procedure Section 1 161.
(a) Subject to the limitation expressed in Paragraph
13.1(c), Tenant shall have a period of three (3) days from the date of
written notice from Landlord within which to cure any default in the
payment of any monetary obligations of Tenant under this Lease.
(b) Tenant shall have a period of fifteen (15) days from
the date of written notice from Landlord within which to cure any other
default under this Lease which is capable of being cured; provided,
however, that with respect to any default which cannot reasonably be
cured within fifteen (15) days, the default shall not be deemed to be
uncured if Tenant commences to cure within five (5) days from Landlord's
notice and thereafter prosecutes diligently and continuously to
completion all acts required to cure the default.
(c) There shall be no period of grace with respect to
any default by Tenant which is not capable of being cured. Landlord and
Tenant stipulate that the following defaults are not capable of being
cured by Tenant: (i) any default which is specified in this Lease as
being incurable; (ii) any unauthorized sale, assignment, mortgage,
pledge, hypothecation, encumbrance or other transfer of this Lease or any
interest herein, or any unauthorized subletting of all or any portion of
the Premises; (iii) the commission of waste by Tenant; (iv) the failure
of Tenant to pay rent or any other monetary obligation of Tenant
hereunder on the due date thereof where such failure occurs on more than
three (3) consecutive occasions or more than six (61 occasions during any
twelve (12) month period; and (v) any other default which is recognized
under California law as being incurable.
13.2 Landlord's Remedies. If Tenant fails to cure a default, or in
the event of a default which is not capable of being cured by Tenant,
Landlord shall have the following rights and remedies in addition to any
other rights and remedies available to Landlord at law or in equity:
(a) Landlord shall have all rights and remedies
provided by California Civil Code Section 1951.2 (or any successor
statute), 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;
(b) Landlord shall have rights and remedies provided by
California Civil Code Section 1951,4 (or any successor statute), which
allows Landlord to continue this 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
Xxxxxx's right to possession. Acts of maintenance or preservation,
efforts to relet the Premises, or the appointment of a receiver upon the
Landlord's initiative to protect its interest under this Lease shall not
constitute a termination of Tenant's right to possession; and
(c) Landlord shall have the right, but not the
obligation, to make any payment or perform any act on Tenant's part as
may be required to cure Tenant's default, without waiving its rights
based upon such default by Tenant and without releasing Tenant from any
of its obligations. All sums so paid and all costs incurred by Landlord,
together with interest thereon at the Overdue Rate from the date of such
payment or the incurrence of such cost by Landlord, whichever occurs
first, shall be paid to Landlord on demand.
14. DEFAULT BY LANDLORD
14.1 Existence of Default. Landlord shall not be deemed to be in
default in the performance of any obligation under this Lease unless and
until it has failed to perform such obligation within twenty (20) days
after receipt of written notice by Tenant to Landlord specifying such
failure; provided, however, that if the nature of the Landlord's default
is such that more than twenty (20) days are required for its cure, then
Landlord shall not be deemed to be in default if it commences such cure
within the twenty (20) day period and thereafter diligently prosecutes
such cure to completion,
14.2 Mortagaee's Right To Cure. Tenant shall give any Mortgagee a
copy, by registered mail, of any notice of default served upon Landlord,
provided that Tenant previously has been notified in writing (by way of
Notice of Assignment of Rents and Leases, or otherwise), of the address
of such Mortgagee. If Landlord fails to cure such default within the time
provided in this Lease, any such Mortgagee shall have an additional
forty-five (45) days within which to cure such default by Landlord, or if
such default cannot be cured within that time, then such additional time
as may be necessary if within that forty-five (45) day period the
Mortgagee has commenced and is pursuing the remedies necessary to cure
such default (including but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure), in which event this Lease
shall not be terminated while such remedies are being so pursued.
14.3 Judgment Against Landlord. If Xxxxxx recovers any judgment
against Landlord for a default by Landlord under this Lease, the
judgment shall be satisfied only out of the interest of Landlord in the
Building and neither Landlord nor any of its partners, officers,
employees or agents shall be personally liable for any such default or
for any deficiency.
15. CONDEMNATION
15.1 Termination Due To Taking. If ail or any part of the Premises
are the subject of a Taking, either Landlord or Tenant may, by written
notice given to the other within thirty (30) days of receipt of notice of
such Taking, elect to terminate this Lease as of the date possession is
transferred pursuant to the Taking; provided, however, that before Tenant
may terminate this Lease for a Taking, such 'faking must be of such an
extent and nature as to substantially impede Tenant's use of the
Premises, If any pan of the Building other than the Premises shall be the
subject of a Taking, Landlord may elect to Terminate this Lease. If there
is a Taking of all or a part of the Parking Facilities and the parking
rights granted to Tenant under Paragraph 2.4 are substantially reduced
thereby, Landlord shall have the right to provide replacement parking to
compensate for such reduction within other parking areas serving the
Office Complex. 1f such replacement parking is not provided, then for a
period of thirty (30) days after Landlord notifies Tenant that such
replacement parking cannot be provided, Tenant shall have the right to
terminate this Lease, effective at a time specified by Tenant not to
exceed thirty (30) days from the date of the notice.
15.2 No Termination Due To Taking. If a partial Taking of the
Premises does not result in a termination of this Lease, Base Rent,
Tenant's Share of Increased Operating Costs and Tenant's parking rights
shall be reduced in proportion to what the area of the Premises taken
bears to the area of the Premises immediately prior to the Taking. No
temporary taking of the Premises or any part of the Building shall
terminate this Lease, except at Landlord's election, or give Tenant any
right to any abatement of Base Rent or Increased Operating Costs, except
that Base Rent and Operating Costs shall be reduced in accordance with
the preceding sentence during that portion of any temporary Taking of
the Premises lasting more than thirty (301 days. Each party hereto
waives the provisions of California Code of Civil Procedure Section
1265.130 (or any successor statute) allowing either party to file a
petition to terminate this Lease for a partial Taking.
15.3 Award For Taking. No award for any partial or entire Taking
shall be apportioned, and Tenant hereby assigns to Landlord any and all
rights of Tenant to any portion of the award for a Taking. However,
nothing contained herein shall be deemed to give Landlord any interest
in or to require Tenant to assign to Landlord any award made to Tenant
for taking of personal property belonging to Tenant.
16. DAMAGE AND DESTRUCTION
16.1 Partial Damage - Insured. If the Premises or the Building are
damaged by a risk covered under fire and extended coverage insurance
insuring Landlord, then Landlord shall restore such damage provided
insurance proceeds are available to Landlord to pay ninety percent (90%)
or more of the cost of restoration, and provided such restoration by
Landlord can be completed within eight (8) months after the commencement
of work in the opinion of a licensed architect or engineer appointed by
Landlord. 1n such event this Lease shall continue in full force and
effect, except that Tenant shall, so long as the damage is not due to the
act or omission of Tenant, be entitled to an equitable reduction of Bass
Rent and Tenant's Share of Increased Operating Costs while such
restoration takes place, such reduction to be based upon the extent to
which the damage or restoration efforts materially interfere with
Xxxxxx's use of the Premises.
16.2 Partial Damage - Uninsured. If the Premises or the Building
are damaged by a risk not covered by such insurance or if the insurance
proceeds available to Landlord are less than eighty percent (80%) of the
cost of restoration, or if the restoration cannot be completed within
eight (8) months after the commencement of work in the opinion of the
licensed architect or engineer appointed by Landlord, then Landlord shall
have the option either to (a) repair or restore such damage, this Lease
continuing in full force and effect, with the Base Rent and Tenant's
Share of Increased Operating Costs to be equitably reduced as provided in
Paragraph 16.1, or (b) give notice to Tenant at any time within ninety
(90) days after such damage terminating this Lease as of a date to be
specified in such notice, which date shall be not less than thirty (30)
nor more than sixty (60) days after the giving of such notice. If such
notice is given, this Lease shall expire and any interest of Tenant in
the Premises shall terminate on the date specified in such notice. The
Base Rent and Xxxxxx's Share of Increased Operating Costs during the
period prior to the termination shall be reduced as provided in Paragraph
16.1 and paid up through the date of termination.
16.3 Total Destruction. if the Premises are totally destroyed or in
Landlord's judgment the Premises cannot be restored as required herein
under applicable laws and regulations, notwithstanding the availability
of insurance proceeds, this Lease shall be terminated effective as of the
date of the damage.
16.4 Landlord's Obligations. Any restoration by Landlord pursuant
to Paragraphs 16.1 or 16.2 shall be commenced as soon as reasonably
possible after the date of damage and prosecuted diligently to completion
at the earliest possible date. Landlord shall not be required to carry
insurance of any kind on Tenant's property and shall not be required to
repair any injury or damage thereto by fire or other causes, or to make
any restoration or replacement of any paneling, decorations, partitions,
ceilings, floor covering, office fixtures or any other improvements or
property installed in the Premises by or at the direct or indirect
expense of Tenant and Tenant shall be required to restore or replace same
in the event of damage. Tenant shall have no claim against Landlord for
any loss suffered by reason of any such damage, destruction, repair or
restoration. Notwithstanding anything to the contrary contained in this
section, Landlord shall have no obligation to repair, reconstruct or
restore the Premises with respect to damage or destruction as described
in this section occurring during the last twelve (12) months of the Term.
16.5 Waiver by Xxxxxx. Tenant shall have no right to terminate this
Lease as a result of any statutory provisions now or hereafter in effect
pertaining to the damage and destruction of the Premises or the Building,
except as expressly provided herein, and Tenant expressly waives the
provisions of California Civil Code Sections 1932(2) and 1933(4) with
respect to any damage or destruction of the Premises.
17. DEFINITIONS
17.1 "Rase Rent" means the monthly rent payable pursuant to
Paragraph 4.1, and as specified in the Basic Lease Provisions.
17.2 "Base Year" means the calendar year specified in the Basic
Lease Provisions.
17.3 "Basic Lease Provisions" means the
provisions contained in Paragraph 1.2 of this Lease.
17.4 "Bonus Rent" means the excess of (a) all consideration
received by Tenant from an assignment of this Lease or a sublease of all
or any portion of the Premises over (b) the Base Rent, Increased
Operating Costs and other charges payable by Tenant to Landlord under
this Lease (prorated, in the case of a sublease of less than all of the
Premises, to reflect obligations allocable to only the portion of the
Premises so sublet). In determining the total consideration under the
foregoing clause la), Tenant shall be entitled to exclude therefrom
reasonable leasing commissions paid by Tenant to any unaffiliated third
party, payments attributable to the amortization of the cost of
improvements Tenant must make to the Premises at its cost to ready same
for the assignee or sublessee, and other reasonable, out-of-pocket costs
paid by Tenant which are directly related to Tenant's obtaining the
assignment or sublease.
17.5 "Building" means the highrise office building described in the
Basic Lease Provisions, the parcels of land on which such office building
is situated, all other improvements situated on the land, and all rights
and easements appurtenant thereto. Except where the context requires
otherwise, references to the "Building" shall include the Common Areas
and the Parking Facilities serving the Building and other buildings in
the Office Complex.
17.6 "Commencement Date" means the date determined pursuant to
Paragraph 3.2 of this Lease for the commencement of the Term.
17.7 "Common Areas" means areas within the Building (including
common corridors and hallways, stairwells, elevators, restrooms, lobbies
and other public areas) and within the Office Complex which are available
for nonexclusive use by Tenant and other tenants of the Building or the
Office Complex.
17.7 "Common Areas" means areas within the Building (including
common corridors and hallways, stairwells, elevators, restrooms, lobbies
and other public areas) and within the Office Complex which are available
for nonexclusive use by Tenant and other tenants of the Building or the
office Complex.
17.8 "Environmental Damages" means all claims, judgments, damages,
losses, penalties, fines, liabilities, strict costs and expenses of
defense of any claim and of any settlement or judgment, including without
limitation reasonable attorneys' fees and consultants' fees, any of which
are incurred at any time as a result of the existence of "Hazardous
Material" upon, about, beneath the Premises or migrating or threatening
to migrate to or from the Premises, or the existence of a violation of
"Environmental Requirements" pertaining to the Premises including,
without limitation: (a) damages for personal injury, or injury to
property or natural resources occurring upon or off of the Premises,
foreseeable or unforeseeable, including, without limitation, lost
profits, consequential damages, interest and penalties including but not
limited to claims brought by or on behalf of employees of Tenant, with
respect to which Tenant waives any immunity to which it may be entitled
under any industrial or worker's compensation laws; (b) diminution in the
value of the premises, and damages for the loss of or restriction on the
use of or adverse impact on the marketing of rentable or usable space of
any amenity of the Premises; (c) fees incurred for the services of
attorneys, consultants, contractors, experts, laboratories and all other
costs incurred in connection with the investigation or remediation of
such "Hazardous Materials" or violation of "Environmental Requirements"
including, but not limited to, the preparation of any feasibility studies
or reports or the performance of any cleanup, remedial, removal,
containment, restoration or monitoring work required by any federal,
state or local governmental agency or political subdivision, or
reasonably necessary to make full economic use of the Premises or any
other property or otherwise expended in connection with such conditions,
and including without limitation any attorneys' fees, costs and expenses
incurred in enforcing this agreement or collecting any sums due
hereunder; and (d) liability to any third person or governmental agency
to indemnify such person or agency for costs expended in connection with
the items referenced in subparagraph (c) herein.
17.9 "Environmental Requirements" means all applicable present and
future statutes, regulations, rules, ordinances, codes, licenses,
permits, orders, approvals, plans, authorizations, concessions,
franchises and similar items, of all governmental agencies, departments,
commissions, boards, bureaus or instrumentalities of the United States,
states and political subdivisions thereof and all applicable judicial and
administrative and regulatory decrees, judgments and orders relating to
the protection of human health, or the environment, including, without
limitation: (a) all requirements, including but not limited to, those
pertaining to reporting, licensing, permitting, investigation and
remediation of emissions, discharges, releases or threatened releases of
"Hazardous Materials," chemical substances, pollutants, contaminants or
hazardous or toxic substances, materials or wastes whether solid, liquid
or gaseous in nature, into the air, surface water, groundwater or land,
or relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of chemical substances,
pollutants, contaminants or hazardous or toxic substances, materials, or
wastes, whether solid, liquid or gaseous in nature; and (b) all
requirements pertaining to the protection of the health and safety of
employees or the public.
17.10 "Expiration Date" means the scheduled date on which the Term
will expire as determined pursuant to Paragraph 3.2 of this Lease.
17.11 "Hazardous Materials" means any substance (a) the presence of
which requires investigation or remediation under any federal, state or
local statute, regulation, ordinance, order, action or policy; or (b)
which is or becomes defined as a "hazardous waste" or "hazardous
substance" under any federal, state or local statute, regulation or
ordinance or amendments thereto; or (c) which is toxic, explosive,
corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic,
or otherwise hazardous and is or becomes regulated by any governmental
authority, agency, department, commission, board, agency or
instrumentality of the United States, the State of California or any
political subdivision thereof; or (d) the presence of which on the
Premises causes or threatens to cause a nuisance upon the Premises or to
adjacent properties or poses or threatens to pose a hazard to the
Premises or the health or safety of persons on or about the Premises; or
(e) without limitation, which contains gasoline, diesel fuel or other
petroleum hydrocarbons; or (f) which contains polychlorinated bipheynols
(PCBs), asbestos or urea formaldehyde foam insulation.
17.12 "Increased Operating Costs" means the amount by which the
Operating Costs during any Subsequent Year exceed the Operating Costs
for the Base Year.
17.13 "Landlord's Work" means the work, if any, to be performed by
Landlord to ready the Premises for Tenant's occupancy, as specified in
the Scope of Work.
17.14 "Lease Date" means the date specified in the Basic Lease
Provisions, which shall be the effective date of execution of this Lease
by Landlord and Tenant unless otherwise provided in this Lease.
17.15 "Mortgagee" means the holder of any mortgage or deed of trust
secured by the Building or the Premises or any portion thereof.
17.16 "Office Complex" means the development comprised of the three
office buildings commonly known as Watergate Towers I, II and III,
addressed, respectively, as 0000 Xxxxxx Xxxxxx, 0000 Xxxxxx Xxxxxx xxx
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx.
17.17 "Operating Costs" means all actual costs of ownership,
operation, maintenance, repair and management of the Building, including
the Building's share of all such costs of the Parking Facilities and the
Common Areas which are shared with other buildings in the Office Complex
to be based on Landlord's reasonable allocation among the buildings. If
during the Base Year or any Subsequent Year the Building is less than
ninety-five percent (95%) occupied, those Operating Costs which vary
based on the level of occupancy shall be adjusted upward to reflect, in
Landlord's reasonable judgment, the Operating Costs that would apply
during such year if the Building were at least ninety-five percent (95%)
occupied.
17.17.1. Operating Costs shall include:
(a) salaries, and other compensation, including payroll
taxes, vacation, holiday and other paid absences, and welfare, retirement
and other fringe benefits, paid to employees, independent contractors or
agents of Landlord engaged in the operation, repair, management or
maintenance of the Building, including (i) elevator operators, (ii)
window cleaners, miscellaneous repair personnel, janitors, cleaning
personnel and porters, (iii) security personnel and caretakers, and (iv)
engineers, mechanics, electricians and plumbers;
(b) repairs and maintenance of the Building and the
costs of supplies, tools, materials and equipment for such repairs and
maintenance that are under generally accepted accounting principles not
capitalized;
(c) premiums and other charges incurred by Landlord for
insurance on the Building and for Landlord's employees, including (i)
fire and extended coverage insurance, and earthquake, windstorm, flood
and explosion insurance, (ii) public liability and property damage
insurance, (iii) worker's compensation insurance, (iv) boiler and
machinery insurance, sprinkler leakage, water damage and related
liability insurance, and burglary, fidelity and pilferage insurance on
equipment and materials, (v) health, accident and group life insurance,
(vi) such other insurance as is customarily carried by operators of
comparable first-class office buildings in the San Francisco Bay Area;
(d) costs incurred for inspection and servicing,
including all outside maintenance contracts necessary for the maintenance
of the Building, such as janitorial and window cleaning, rubbish removal,
exterminating, water treatment, elevator, electrical, plumbing and
mechanical equipment, and the costs of materials, tools, supplies and
equipment used for inspection and servicing of the Building;
(e) costs incurred for electricity, water, gas, fuel
and' other utilities;
(f) payroll taxes, federal taxes, state and local
unemployment taxes, and social security taxes paid for the employees of
Landlord engaged in the operation, maintenance and repair of the
Building;
(g) sales, use and excise taxes on goods and services
purchased by Landlord for use in the Building;
(h) license, permit and inspection fees;
(i) accounting and legal fees;
(j) Customary management fees not to exceed five
percent (5%) of the gross revenues of the Building;
(k) the annual amortization over its useful life, with
a reasonable salvage value on a straightline basis, of the costs of any
capital improvements made by Landlord and required by any changes in
applicable laws, rules or regulations of any governmental authority
enacted after the Building was completed;
(l) the annual amortization over its useful life, with
a reasonable salvage value on a straightline basis, of the costs of any
equipment or capital improvements made by Landlord after the Building was
completed as a labor-saving measure or to accomplish other savings in
operating, repairing, managing or maintaining the Building, but only to
the extent of the savings;
(m) the annual amortization, over its useful life on a
straight line basis, of the cost of any exterior window draperies
provided by Landlord and the carpeting in the Common Areas;
(n) any costs for substituting work, labor, materials
or services in place of any of the above items, or for any additional
work, labor, materials, services or improvements to comply with any
governmental laws, rules, regulations or other requirements applicable to
the Building enacted after the Building was completed which are
considered operating expenses under generally accepted accounting
principles;
(o) other costs reasonably necessary to maintain,
operate, repair and manage the Building in a first-class mariner and
condition;
(p) all real property taxes on the Building, the land
on which the Building is situated, and the various estates in the
Building and a proportion of the real property taxes on the land and
improvements comprising the Parking Facilities and the Common Areas
shared with other buildings in the Office Complex, based on Landlord's
reasonable allocation among the buildings using such facilities and
areas;
(q) all personal property taxes levied on property used
in the operation of the Building;
(r) all taxes of every kind and nature whatsoever
levied or assessed in lieu of or in substitution for existing or
additional real or personal property taxes on the Building, land or
personal property other than taxes covered by Paragraph 4.4, including,
but not limited to, any charge, levy, excise or assessment upon
Landlord's business of leasing the Premises or other portions of the
Building or the Parking Facilities; and
(s) the cost to Landlord of contesting the amount,
validity or applicability of any of the foregoing items.
17.17.2. Operating Costs shall exclude:
(a) leasing commissions, costs, disbursements,
attorneys' fees, accounting fees and other expenses incurred for leasing,
renovating or improving space for tenants;
(b) the cost of electricity or other services sold to
tenants for which Landlord is to be reimbursed as a charge over the rent
payable under the leases with such tenants;
(c) costs incurred because Landlord or another tenant
violated the terms of any lease of the Building;
(d) interest on debt or amortization payments on
mortgages or deeds of trust or any other debt for borrowed money, except
as herein expressly permitted;
(e) items and services for which Tenant reimburses
Landlord or pays third parties or that Landlord provides selectively to
one or more tenants of the Building other than Tenant without
reimbursement;
(f) advertising and promotional
expenses;
(g) repairs or other work needed because of fire or
other casualty insured against by Xxxxxxxx;
(h) costs incurred in operating the Parking Facilities
except to the extent the cost of operating the Parking Facilities exceeds
the revenues generated from operation thereof;
(i) nonrecurring costs incurred to remedy structural
defects in the original construction materials or insulation; and
(j) costs incurred by Landlord for alterations that are
considered capital improvements under generally accepted accounting
principles except to the extent the same are expressly permitted under
Paragraph 17.17.1
17.18 "Overdue Rate" means the lesser of; (a) eighteen percent
(18%) per annum; or (b) the maximum rate permitted under applicable
usury law.
17.19 "Parking Charge" means the monthly amount to be paid by
Tenant for each parking permit issued to Tenant pursuant to Paragraph
2.4, which amount is specified in the Basic Lease Provisions and subject
to increase.
17.20 "Parking Facilities" means the parking lot(s) and parking
structure(s) located within or adjacent to the Office Complex and
designated by Landlord as serving the Building.
17.21 "Premises" means the portion of the Building demised by this
Lease, as designated by suite number in the Basic Lease Provisions and
shown on Exhibit A to this Lease.
17.22 "Rule and Regulations" means the rules and regulations
regulating the use of the Premises, the Common Areas, Parking Facilities
and other portions of the Building promulgated by Landlord from time to
time as provided in paragraph 5.6 of this Lease.
17.23 "Security Deposit" means the amount specified in the Basic
Lease Provisions, which is to be held by Landlord to secure tenant's
performance of its obligations under this Lease as provided in paragraph
4.2
17.24 "Scope of Work" means the Scope of Work Agreement if any,
executed by Landlord and Tenant concurrently with their execution of the
Lease, which will de attached as Exhibit B to this Lease and will
establish the full extent of Landlord's Work in readying the Premises for
Xxxxxx's occupancy hereunder.
17.25 "Subsequent Year" means any calendar
year during the Term after the Base Year.
17.26 "Substantial Completion" means (a) completion, as determined
in the event of a dispute by Xxxxxxxx's architect in accordance with AIA
standards, of Landlord's Work except for such items a$ constitute a minor
defect or deficiency which can be completed or corrected after occupancy
without causing any material interference with Xxxxxx's use of the
Premises, and (b) the issuance of a certificate of occupancy by the City
of Emeryville or such other governmental authorization as may be required
for occupancy of the Premises.
17.27 "Taking" means the taking of property or any interest therein
for public or quasi public use by exercise of the power of eminent domain
or otherwise, or a taking in the nature of inverse condemnation, with or
without litigation, or a transfer of property or any interest therein
pursuant to an agreement entered into under threat of exercise of the
power of eminent domain.
17.28 "Tenant Parking" means the number of permits to park
passenger automobiles in the Parking Facilities which are to be issued to
Tenant pursuant to paragraph 2.4, and as specified in the Basic Lease
Provisions.
17.29 "Tenant's Share" means the ratio that the rentable square
footage of the Premises bears to the total rentable square footage of the
Building. If the rentable square footage of the Premises and/or the total
rentable square footage of the Building changes, Xxxxxx's Share shall be
appropriately adjusted so that it at all times reflects the proportion
which the rentable square footage of the Premises bears to the total
rentable square footage of the Building.
17.30 "Term" means the term of this Lease, including any permitted
extensions or renewals thereof.
18. MISCELLANEOUS PROVISIONS
18.1 Estoppel Certificates. Within ten (10) days following any
written request Landlord may make from time to time, Tenant without any
charge therefor, shall execute, acknowledge and deliver a statement
certifying: (a) the Commencement bate of this Lease; (b) the fact that
this Lease is unmodified and in full force and effect (or, if there have
been modifications hereto, that this Lease is in full force and effect,
as modified, and stating the date and nature of such modifications); (c)
the date to which the rent and other sums payable under this Lease have
been paid; (d) the fact that there are no current defaults under this
Lease by either Landlord or Tenant except as specified in the statement;
and (e) such other matters as may be reasonably requested by Landlord.
Landlord and Tenant intend that any statement delivered pursuant to this
paragraph may be relied upon by a mortgagee, beneficiary, purchaser or
prospective purchaser of the Building or any interest therein. Tenant's
failure to deliver any such statement within said ten (10) day period
shall constitute a material default, arid Tenant shall indemnify and hold
Landlord harmless from and against any and all liability, loss, cost,
damage and expense which Landlord may sustain or incur as a result of or
in connection with Tenant's failure or delay in delivering such
statement. If Landlord elects to sell the Building or to obtain loans
secured by a lien on the Building, Tenant, promptly after demand, shall
provide to any such purchaser or lender financial statements of Tenant
reasonably required by the purchaser or lender, The financial statements
so provided shall be kept confidential as to any parties other than the
purchaser or lender.
18.2 Surrender of Premises. A voluntary or other surrender of this
Lease by Tenant or the mutual cancellation of this Lease shall not work a
merger and shall, at the option of Landlord, terminate all or any
existing subleases or subtenancies, or may, at the option of Landlord,
operate as an assignment to it of any or all such subleases or
subtenancies.
18.3 Light and Air. No diminution of light, air or view by any
structure which may hereafter be erected (whether or not by Landlord)
shall entitle Tenant to any reduction of rent under this Lease, result in
any liability of Landlord to Tenant, or in any other way affect this
Lease.
18.4 Waiver. If either Landlord or Tenant waives the performance of
any term, covenant or condition contained in this Lease, such waiver
shall not be deemed to be a waiver of the term, covenant or condition
itself or a waiver of any subsequent breach of the same or any other
term, covenant or condition contained herein. Furthermore, the acceptance
of rent by Landlord shall not constitute a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, regardless of
Landlord's knowledge of such preceding breach at the time Landlord
accepts such rent. Failure by Landlord or Tenant to enforce any of the
terms, covenants or conditions of this Lease for any length of time shall
not be deemed to waive or to decrease the right of Landlord or Tenant, as
the case may be, to insist thereafter upon strict performance by Tenant
the other party, Waiver by Landlord or Tenant of any term, covenant or
condition contained in this Lease may only be made by a written document
signed by the party being bound.
18.5 Attorneys' Fees, In the event that any action or proceeding
(including arbitration) is brought to enforce or interpret any term,
covenant or condition of this Lease on the part of Landlord or Tenant,
the prevailing party in such action or proceeding (whether after trial or
appeal) shall be entitled to recover from the party not prevailing its
expenses therein, including reasonable attorneys' fees and all allowable
costs. If Landlord is made a party to any action or proceeding commenced
by a third party due to any actual or alleged act or omission of Tenant
or Tenant's agents, employees, contractors, invitees or subtenants,
Tenant shall indemnify and hold Landlord harmless from all costs incurred
in such action or proceeding, including reasonable attorneys' fees.
Subject to the foregoing obligation of Tenant, if Tenant is made a party
to any action or proceeding commenced by a third party due to any actual
or alleged act or omission of Landlord or Landlord's agents, employees,
contractors or invitees, Landlord shall indemnify and hold Tenant
harmless from all costs incurred in such action or proceeding, including
reasonable attorneys' fees. If Tenant requests Xxxxxxxx's consent to,
approval of or signature on any instrument or agreement which would alter
or affect Landlord's legal rights and duties, Tenant shall reimburse
Landlord upon demand for Landlord's reasonable attorneys' fees incurred
in connection with the review and evaluation of the requested action.
18.6 Notices. Any notice required or permitted under this Lease
shall be in writing and shall be delivered either personally or by
depositing same in the United States Mail, postage prepaid, registered or
certified, return receipt requested, addressed to the intended recipient
at such party's address set forth in the Basic Lease Provisions or at
such other address as such party has theretofore specified by written
notice delivered in accordance with this paragraph. Any notice delivered
by mail in the manner specified in this paragraph shall be deemed
delivered on the earlier of the third day following deposit thereof in
the United States Mail or on the delivery date shown on the return
receipt prepared in connection therewith; and any such notice specifying
a default by Tenant shall be deemed sufficient for all purposes under
California Code of Civil Procedure Sections 1161 and 1162,
notwithstanding the fact that such notice is not personally served on
Tenant or that such notice does not demand possession of the Premises as
an alternative to Tenant's curing of such default.
18.7 Merger. Notwithstanding the acquisition (if same should occur)
by the same party of the title and interests of both Landlord and Tenant
under this Lease, there shall never be a merger of the estates of
Landlord and Tenant under this Lease, but instead the separate estates,
rights, duties and obligations of Landlord and Tenant, as existing
hereunder, shall remain unextinguished and continue, separately, in full
force and effect until this Lease expires or otherwise terminates in
accordance with the express provisions herein contained.
18.8 Substituted Premises. [Intentionally deleted.]
18.9 Headings. Words used in neuter gender include the feminine and
masculine, where applicable. If there is more than one Tenant, the
obligations imposed under this Lease upon Tenant shall be joint and
several. The headings and titles to the sections and paragraphs of this
Lease are used for convenience only and shall have no effect upon the
construction or interpretation of this Lease.
18.10 Time And Applicable Law. Time is of the essence of this Lease
and all of its provisions. This Lease shall in all respects be governed
by and interpreted in accordance with the laws of the State of
California.
18.11 Successors And Assigns. Each conveyance by Landlord or its
successors in interest of Xxxxxxxx's interest in the Building or the
Premises prior to the expiration or termination of this Lease shall be
subject to this Lease and shall relieve the grantor of all further
liability or obligations as Landlord, except for such liability or
obligations accruing prior to the date of such conveyance. If any
Security Deposit has been given to Landlord, Landlord shall deliver such
Security Deposit to Landlord's successors in interest, whether such
interest is acquired by sale, transfer, foreclosure, deed in lieu of
foreclosure or otherwise. Subject to the foregoing and to the provisions
of Section 16, the terms, covenants and conditions contained herein shall
be binding upon and inure to the benefit of the heirs, successors,
executors, administrators and assigns of the parties hereto.
18.12 Entry by Landlord. Landlord and its authorized representative
shall have the right to enter the Premises: (a) to inspect the Premises;
(b) to supply any service provided to Tenant hereunder: (c) to show the
Premises to prospective brokers, agents, purchasers, lenders or tenants;
(d) to post notices of non-responsibility, (e) to alter, improve or
repair the Premises and any other portion of the Building; and (f) to
erect scaffolding and other necessary structures, where required by the
work to be performed, all without reduction or abatement of rent. Tenant
hereby waives any claim for damages for any injury to or interference
with Xxxxxx's business or quiet enjoyment of the Premises or any other
loss occasioned by such entry. Landlord shall at all times have a key to
unlock all doors in and about the Premises, excluding Xxxxxx's vaults and
safes, and Landlord shall have the right to use any means which Landlord
deems proper to open said doors in an emergency, and any such entry to
the Premises shall not under any circumstances be construed or deemed to
be a forcible or unlawful entry into the Premises or a detainer of the
Premises or an eviction of Tenant from any portion of the Premises.
18.13 Entire Agreement. This Lease, together with its exhibits,
contains all the agreements of the parties hereto and supersedes any
previous negotiations. There have been no representations made by the
Landlord or understandings made between the parties other than those set
forth in this Lease and its exhibits. This Lease may not be modified
except by a written instrument duly executed by the parties hereto.
18.14 Severability. If any provision of this Lease or the
application of such provision to other persons or circumstances shall not
be affected thereby and shall be enforced to the greatest extent
permitted by law.
18.15 Signs. Tenant shall not place or permit to be placed in or
upon the Premises where visible from outside the Premises or any part of
the Building, any signs, notices, drapes, shutters, blinds or window
coatings, or displays of any type without the prior written consent of
Landlord. Landlord shall consent to the location at the cost of Tenant of
a building standard sign on or near the entrance of the Premises and
shall include Tenant in the Building directories located in the Building.
Landlord reserves the right in Xxxxxxxx's sole discretion to place and
locate on the roof and exterior of the Building and in any area of the
Building not leased to Tenant, such signs, notices, displays and similar
items as Landlord deems appropriate in the proper operation of the
Building,
18.16 Execution By Landlord. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises. This document becomes
effective and binding only upon execution and delivery hereof by Xxxxxx
and by Landlord, No act or omission of any employee or agent of Landlord
or of Landlord's broker shall alter, change or modify any of the
provisions hereof.
18.17 Brokers. Tenant shall hold Landlord harmless from all damages
(including attorneys' fees and costs) resulting from any claims that may
be asserted against Landlord by any broker, finder, or other person with
whom Xxxxxx has or purportedly has dealt, except the leasing agent for
the Building duly appointed by Landlord.
18.18 Name of Building. Tenant shall not use the name of the
Building for any purpose other than the address of the business to be
conducted by Tenant in the Premises. Tenant shall not use any picture of
the Building in its advertising, stationery or in any other manner, so as
to imply that the entire Building is leased by Xxxxxx. Landlord expressly
reserves the right at any time to change the name or street address of
the Building without in any manner being liable to Tenant therefor.
18.19 Nonrecordability of Lease. Xxxxxx agrees that in no event
shall this Lease or a memorandum hereof be recorded without Landlord's
express prior written consent, which consent Landlord may withhold in its
sole discretion.
18.20 Construction. All provisions hereof, whether covenants or
conditions, shall be deemed to be both covenants and conditions, The
definitions contained in this Lease shall be used to interpret the Lease.
All rights and remedies of Landlord and Tenant shall, except as otherwise
expressly provided, be cumulative and non-exclusive of any other remedy
at law or in equity.
18.21 Inability To Perform. This Lease and the obligations of
Tenant hereunder shall not be affected or impaired because Landlord is
unable to fulfill any of its obligations hereunder or is delayed in doing
so, if such inability or delay is caused by reason of force majeure,
strike, labor troubles, acts of God, acts of government, unavailability
of materials or labor, or any other cause beyond the control of Landlord.
18.22 Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of Tenant represents and warrants that
Tenant is qualified to do business in California and that he is duly
authorized to execute and deliver this Lease on behalf of Tenant and
shall deliver appropriate certification to that effect if requested. If
Tenant is a partnership, joint venture, or other unincorporated
association, each individual executing this Lease on behalf of Tenant
represents and warrants that he is duly authorized to execute and deliver
this Lease on behalf of Tenant and that this Lease is binding on Tenant.
Furthermore, Xxxxxx agrees that the execution of any written consent
hereunder, or any written modification or termination of this Lease, by
any general partner of Tenant or any other authorized agent of Tenant,
shall be binding on Tenant.
18.23 Quiet Enjoyment. So long as Tenant is not in default under
this Lease, Tenant shall have quiet enjoyment of the Premises for the
Term, subject to all the terms and conditions of this Lease and all liens
and encumbrances prior to this Lease.
19. EXTRA PARKING PERMITS
Tenant, provided Tenant is not in default under this Lease, shall
have the right to utilize sixteen (1 fit extra parking permits at the
then current rate for monthly parking in the parking structure so long as
there is sufficient monthly parking available to reasonably provide for
the proportionate parking requirements of all the tenants within the
Building. If, in Landlord's opinion, there is insufficient parking, then
Landlord reserves the right to revoke the extra parking permits issued.
20. LETTER OF CREDIT/SECURITY DEPOSIT
Within ten (10) days after execution of this Lease, Tenant shall
deposit with Landlord cash in the amount of $1,780.35 to increase the
cash portion of the Security Deposit held by Landlord to $13,233. 60, In
addition, Tenant shall deliver to Landlord a clean, irrevocable letter of
credit issued by a bank reasonably acceptable to Landlord in the amount
of $19,209.65. Such letter of credit shall have an expiration date not
less than one (1) year from the date of issuance and, should Tenant fail
to deliver to Landlord a renewal thereof or a new letter of credit within
thirty (30) days prior to such expiration date, Landlord shall have the
right to draw down the entire letter of credit and retain the proceeds
thereof as a cash Security Deposit. The letter of credit shall permit
partial drawings thereunder and shall be payable upon presentation of a
sight draft and a certificate from Landlord under the terms of the Lease
to draw down the funds requested in such sight draft.
21. RIGHT TO NEGOTIATE LEASE OF ADDITIONAL SPACE
21.1 Grant of Right. During the Term of this Lease and provided
Tenant is not in material default under this Lease, Tenant shall have the
right to negotiate (the "Negotiation Right") to lease additional office
space in the Building as such space becomes available. This Negotiation
Right shall arise and may be exercised only in accordance with the terms
of this section.
21.2 Notice of Space Requirement. As Tenant requires additional
space, Tenant shall notify Landlord in writing of its additional space
requirements, which notice shall state the number of square feet required
by Tenant (the "Requirement Notice"). Tenant's Negotiation Right shall
become operative upon Xxxxxxxx's receipt of Xxxxxx's Requirement Notice;
provided, however, that such Negotiation Right shell be subject to any
preexisting options, rights of refusal or rights to negotiate contained
in leases with other tenants. For purposes hereof, a right of refusal or
right to negotiate in another lease shall be deemed to preexist Tenant's
Negotiation Right where the same became operative prior to the date
Tenant delivered its Requirement Notice for additional space as set forth
in a previously delivered Requirement Notice; and such subsequent Notice
shall serve to terminate any previous Requirement Notice and Xxxxxx's
Negotiation Right.
27.3 Exercise of Negotiation Right. Where Tenant's Negotiation Right
is operative and not subject to any preexisting options, rights of
refusal or rights to negotiate in other leases, the following procedure
shall apply:
(a) At such time as office space in the Building encompassing
a square footage equal to or greater than that specified in Tenant's
Requirement Notice is available for lease, Landlord shall give Tenant
notice thereof and shall specify in such notice the additional office
space which is available and the rent and other basic economic terms on
which Landlord is willing to lease such additional office space to Tenant
(the "Offer Notice"), The rent specified in the Offer Notice will be
equal to the then fair market rental value for comparable premises in the
Building.
(b) Tenant shall have a period of five (5) business days
after receipt of the Offer Notice within which to notify Landlord in
writing of Tenant's exercise of the Negotiation Right. Should Tenant fail
to so notify Landlord within said five (5) business day period, Xxxxxx's
Negotiation Right shall lapse and Landlord shall be free to deal with the
office space described in the Offer Notice without regard thereto.
(c) if Tenant gives Landlord timely notice of Xxxxxx's
exercise of the Negotiation Right (the "Exercise Notice"), Tenant shall
specify in its Exercise Notice (i) the amount of additional office space
Tenant desires to lease (which shall not be less than the amount stated
in Tenant's Requirement Notice), (ii) whether the rent and other basic
economic terms described in the Offer Notice are acceptable to Tenant
and, if not, the rent or other basic economic terms Tenant proposes in
their place, and (iii) any additional terms or conditions Tenant desires
with respect to the lease of such additional office space. Promptly
following Xxxxxxxx's receipt of Tenant's Exercise Notice, the parties
shall meet to negotiate an amendment to this Lease to expand the Premises
to include the additional office space specified therein (the "Expansion
Amendment"). The Expansion Amendment shall incorporate the terms and
provisions of this Lease except insofar as the same are inconsistent with
the rent and other basic economic terms the parties have negotiated
pursuant to this section or are not reasonably applicable to such
expansion.
(d) if the parties fail to mutually agree upon and execute a
definitive Expansion Amendment with in twenty (20) business days after
Xxxxxx's delivery of the Exercise Notice, Xxxxxx's Negotiation Right
shall lapse and Landlord shall be free to deal with the office space
described in Xxxxxxxx's Offer Notice without regard thereto.
21.4 Limitation of Right. Nothing in this section shall be
construed to require Landlord to lease to Tenant any portion of any floor
in the Building which would leave Landlord with a remainder of such floor
that was not commercially and economically rentable to third parties.
22. TERMINATION OF EXISTING LEASE
As of the Commencement Date, Landlord shall terminate the entire
existing direct lease between Landlord and Tenant for a portion of
Tenant's premises on the ninth (9th) floor of the Building dated December
15, 1992, the Amendment to Lease dated April 30, 1993, the Second
Amendment to Lease dated December 21, 1993, and the Third Amendment to
Lease dated February 16, 1994 (collectively, "Existing Lease"),
TENANT:
TENANT:
WATERGATE TOWER ASSOCIATES,
SCOPUS TECHNOLOGY, INC.,
a California limited
partnership
a California
corporation
By: /s/ X.X. Xxxxxxx, by Xxxxxx X. Xxxx
By: /s/ X. Xxxxxx
Its: General Partner/Attorney-in-Fact
Its: Vice President, Operations
Exhibit A
Drawing of Floor Plan
Exhibit B
Scope of Work
1. Landlord shall be responsible, at its sole cost and expense, for
constructing certain tenant improvements ("Landlord's Work") in
accordance with the final plans and specifications ("Final Plans")
prepared by Xxxx Xxxxxx & Associates dated as of August 9. 1994, with
general revisions dated August 15, 1994.
2. Any Changes to Landlord's Work from the Final Plans ("Change Orders")
may be made only at Xxxxxx's written request, approved by Landlord.
Tenant shall be responsible for any delay in the Substantial Completion
of Landlord's Work and any increase in the cost of Landlord's Work as a
result of such Change Orders.
3. Tenant shall be responsible, at its sole cost and expense, for any
telephone and computer installation, including wiring, and for any other
tenant improvements not included in the Final Plans.
WATERGATE TOWER ASSOCIATES,
SCOPUS TECHNOLOGY, INC.,
a California limited
partnership
a California
corporation
By: /s/ X.X. Xxxxxxx, by Xxxxxx X. Xxxx
By: /s/ X. Xxxxxx
Its: General Partner/Attorney-in-Fact
Its: Vice President, Operations
