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Exhibit 10.15
OFFICE LEASE
By and Between
50 WEST SAN XXXXXXXX ASSOCIATES,
a California limited partnership
("Landlord")
and
ABOVENET, a California Corporation
("Tenant")
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TABLE OF CONTENTS
Page
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ARTICLE 1
SUMMARY OF LEASE PROVISIONS ....................................... 1
1.1 Tenant .................................................. 1
1.2 Landlord ................................................ 1
1.3 Lease Date (for reference purposes only) ................ 1
1.4 Premises ................................................ 1
1.5 Improvement Allowance ................................... 1
1.6 Term .................................................... 1
1.7 Commencement Date ....................................... 1
1.8 Termination Date ........................................ 1
1.9 Monthly Base Rent ....................................... 1
1.10 [Intentionally Omitted] ................................. 1
1.11 [Intentionally Omitted] ................................. 1
1.12 Tenant's Allowed Parking Spaces ......................... 1
1.13 Use of Premises ......................................... 1
1.14 Security Deposit ........................................ 1
1.15 Addresses for Notices ................................... 2
1.16 Summary Provisions in General ........................... 2
ARTICLE 2
DEMISE ............................................................ 2
2.1 Demise of Premises ...................................... 2
2.2 Rentable Area ........................................... 2
2.3 Ground Lease ............................................ 2
2.4 Tenant's Improvements ................................... 2
ARTICLE 3
TERM .............................................................. 4
3.1 Term .................................................... 4
3.2 Lease Termination ....................................... 4
3.3 Lease Year; Calendar Year ............................... 4
3.4 Option to Extend Lease Term ............................. 4
ARTICLE 4
POSSESSION ........................................................ 5
4.1 "As Is" Condition ....................................... 5
ARTICLE 5
RENT .............................................................. 5
5.1 Base Rent ............................................... 5
5.2 Late Charges ............................................ 5
5.3 Additional Rent ......................................... 6
5.4 [Intentionally Omitted] ................................. 6
5.5 Rent Deposit ............................................ 7
ARTICLE 6
[Intentionally Omitted]
ARTICLE 7
USE OF PREMISES ................................................... 10
7.1 Permitted Uses .......................................... 10
7.2 Limitations ............................................. 10
7.3 Compliance with Law ..................................... 10
7.4 Signs; Directory ........................................ 10
ARTICLE 8
THE COMMON AREA ................................................... 11
8.1 Tenant's Nonexclusive Right to Use ...................... 11
8.2 Landlord's Control ...................................... 11
ARTICLE 9
REPAIRS AND MAINTENANCE ........................................... 12
9.1 Tenant's Obligations .................................... 12
9.2 Landlord's Obligations .................................. 12
9.3 Tenant's Negligence ..................................... 12
ARTICLE 10
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ALTERATIONS AND ADDITIONS ......................................... 12
10.1 Restrictions ............................................ 12
10.2 Alterations Required By Law ............................. 13
10.3 Liens ................................................... 13
10.4 Landlord's Improvements ................................. 14
ARTICLE 11
ASSIGNMENT AND SUBLETTING ......................................... 14
11.1 In General .............................................. 14
11.2 Voluntary Assignment and Subletting ..................... 14
11.3 Involuntary Transfer .................................... 16
11.4 Hypothecation ........................................... 17
11.5 Binding on Successors ................................... 17
ARTICLE 12
INSURANCE AND INDEMNITY ........................................... 17
12.1 Tenant's Liability Insurance ............................ 17
12.2 Subrogation ............................................. 17
12.3 Tenant's Indemnity ...................................... 15
12.4 Release of Liability .................................... 18
12.5 Tenant's Personal Property Insurance .................... 18
ARTICLE 13
SERVICES AND UTILITIES ............................................ 18
13.1 Landlord's Obligations .................................. 18
13.2 Tenant's Obligations .................................... 19
ARTICLE 14
PERSONAL PROPERTY TAXES ........................................... 19
14.1 Taxes on Tenant's Property............................... 19
14.2 Taxes on Improvements ................................... 19
ARTICLE 15
DAMAGE TO PREMISES ................................................ 20
15.1 Definition of Terms ..................................... 20
15.2 Insured Casualty ........................................ 20
15.3 Uninsured Casualty ...................................... 20
15.4 Tenant's Election ....................................... 20
15.5 Continuance of Lease .................................... 21
15.6 Damage or Destruction Near End of Lease Term ............ 21
15.7 Termination of Lease .................................... 21
15.8 Abatement of Rentals .................................... 21
15.9 Liability for Personal Property ......................... 21
15.10 Waiver of Civil Code Remedies ........................... 21
ARTICLE 16
DEFAULT AND REMEDIES .............................................. 21
16.1 Events of Default ....................................... 21
16.2 Remedies ................................................ 22
16.3 Attorneys' Fees ......................................... 24
16.4 Landlord's Default ...................................... 24
ARTICLE 17
CONDEMNATION ...................................................... 24
17.1 Landlord's Right to Terminate ........................... 24
17.2 Tenant's Right to Terminate ............................. 24
17.3 Temporary Taking ........................................ 25
17.4 Restoration and Abatement of Rent ....................... 25
17.5 Division of Condemnation Award .......................... 25
ARTICLE 18
SUBORDINATION TO MORTGAGES ........................................ 25
18.1 Subordination ........................................... 25
18.2 Subordination Agreements ................................ 25
18.3 Approval by Mortgagees .................................. 26
18.4 Attornment .............................................. 26
ARTICLE 19
GENERAL PROVISIONS ................................................ 26
19.1 Authority to Sign ....................................... 26
19.2 Intentionally Omitted ................................... 26
19.3 Rules and Regulations ................................... 26
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19.4 Holding Over ............................................ 26
19.5 Entry by Landlord ....................................... 27
19.6 Non-Discrimination ...................................... 27
19.7 Estoppel Certificate .................................... 27
19.8 Transfer of Landlord's Interest ......................... 28
19.9 Interest ................................................ 28
19.10 Parking ................................................. 28
19.11 Limitation on Landlord's Liability ...................... 29
19.12 Waiver .................................................. 29
19.13 Notices ................................................. 29
19.14 Joint and Several Obligation ............................ 29
19.15 Headings ................................................ 30
19.16 Time .................................................... 30
19.17 Successors and Assigns .................................. 30
19.18 Recordation ............................................. 30
19.19 Quiet Possession ........................................ 30
19.20 Prior Agreements ........................................ 30
19.21 Inability to Perform .................................... 30
19.22 Attorneys' fees ......................................... 30
19.23 Severability ............................................ 30
19.24 Cumulative Remedies ..................................... 30
19.25 Choice of Law ........................................... 30
19.26 Brokers ................................................. 30
19.27 Exhibits ................................................ 31
EXHIBIT A - FLOOR PLAN OF PREMISES
EXHIBIT B - [INTENTIONALLY OMITTED]
EXHIBIT C - [INTENTIONALLY OMITTED]
EXHIBIT D - STANDARDS FOR UTILITIES AND SERVICES
EXHIBIT E - RULES AND REGULATIONS
EXHIBIT F - PARKING RULES AND REGULATIONS
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OFFICE LEASE
For and in consideration of the rentals, covenants and conditions hereinafter
set forth, Landlord hereby leases to Tenant, and Tenant hereby rents from
Landlord, the herein described Premises for the term, at the rental and subject
to and upon all of the terms, covenants and agreements set forth in this Office
Lease ("Lease").
ARTICLE 1
SUMMARY OF LEASE PROVISIONS
1.1 Tenant: AboveNet, a California corporation ("Tenant").
1.2 Landlord: 50 West San Xxxxxxxx Associates, a California limited
partnership ("Landlord").
1.3 Lease Date (for reference purposes only): May 15, 1996.
1.4 Premises: An area consisting of one thousand nine hundred
eight-six (1986) rentable square feet and one thousand seven
hundred thirty-four (1734) usable square feet in that certain
building located at 00 Xxxx Xxx Xxxxxxxx Xxxxxx, Xxxxx #0000,
Xxx Xxxx, Xxxxxxxxxx, otherwise known as Fairmont Plaza, (the
"Building") , which area is on the tenth (10th) floor of the
Building. (ARTICLE 2.)
1.5 Improvement Allowance: None
1.6 Term: 60 months. (ARTICLE 3.)
1.7 Commencement Date: June 1, 1996. (ARTICLE 3.)
1.8 Termination Date: May 31, 2001. (ARTICLE 3.)
1.9 Monthly Base Rent: For each month of the following Lease Years
and subject to increase upon exercise of the Expansion Option:
Lease Year Monthly Rate
First Lease Year $1.00 per rentable sq foot
Second Lease Year $1.25 "
Third Lease Year $1.50 "
Fourth Lease Year $2.10 "
Fifth Lease Year $2.10 "
1.10 Base Year for Operating Expenses: 1996 (ARTICLE 6.)
1.11 Tenant's Percentage Share: .0062%, calculated as a fraction, the
numerator of which is 1986 (the net rentable area of the
Premises) and the denominator of which is 323,065 (the net
rentable area of the Building). (ARTICLE 6.)
1.12 Tenant shall be entitled, but not obligated, to rent up to a
total number of twelve (12) parking spaces allocated: Four (4)
non-reserved parking space located within the On-Site Parking
Facilities and Eight (8) non-reserved parking spaces located
within the Off-Site Parking Facilities. (ARTICLE 19.)
1.13 Use of Premises: General office uses in support of providing
equipment service to Internet access and service providers
(ARTICLE 7.) and computer related services
1.14 Security Deposit: None
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1.15 Addresses for Notices:
To Landlord: 00 Xxxx Xxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
To Tenant: 00 Xxxx Xxx Xxxxxxxx Xxxxxx,
Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxx
1.16 Summary Provisions in General. The parenthetical references in
this Article 1 to other Articles in this Lease are for convenience of reference
and designate some of the other Lease Articles where applicable provisions are
set forth. All of the terms and conditions of each such referenced Article shall
be construed to be incorporated within and made a part of each of the above
referenced Summary of Lease Provisions. In the event of any conflict between any
Summary of Lease Provision as set forth above and the balance of the Lease, the
latter shall control.
ARTICLE 2
DEMISE
2.1 Demise of Premises. Upon the terms, covenants and conditions set
forth herein, Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the premises set forth in Section 1.4 (the "Premises"). A floor plan
of the Premises is attached hereto as Exhibit "A." The real property upon which
the Building is situated is hereinafter referred to as the "Property."
2.2 Rentable Area. The actual "usable area" of the Premises and the
actual "rentable area" of the Premises is set forth in Section 1.4 above. The
rentable area of the Premises shall be utilized to calculate the Base Rent set
forth in Section 1.9 above and to make all other calculations under this Lease
in which rentable area is a factor. For the purposes of this Lease, the Premises
and the Building have been measured in accordance with the Building Owners and
Managers Association Standard of Measurement ANSI Z65.1-1980 (the "BOMA
Standard"). Tenant acknowledges that the rentable area of the Premises consists
of the usable area of the Premises, together with an allocation of certain
Building common areas and services areas equal to fourteen and one half percent
(14.5%) of the usable area of the Premises.
2.3 Ground Lease. Tenant hereby acknowledges that Landlord's
interest in the Property consists of the leasehold interest under that certain
Block 1 Office Parcel Ground Lease entered into by and between the Redevelopment
Agency of the City of San Xxxx (the "Agency"), as landlord, and Landlord, as
tenant, on or about December 4, 1986, as amended and restated in that certain
Ground Lease dated April 30, 1990 (the "Ground Lease"). Tenant also hereby
acknowledges that Tenant's rights and interests in the Premises are subject and
subordinate to the terms and provisions of the Ground Lease.
2.4 Tenant Improvements.
2.4.1 Landlord Obligations. The parties hereto acknowledge
that the Premises have been previously improved for the benefit of a prior
tenant. Prior to the Commencement Date (defined below), Landlord, at its sole
cost, shall repaint the Premises and provide for not less than ____ electrical
outlets within locations in the Premises to be specified by Tenant. Other than
the aforesaid repainting and installation of outlets, Landlord shall have no
other obligation to refurbish, modify, or otherwise improve the Premises for the
benefit of Tenant.
2.4.2 Tenant's Right to Install. Tenant shall have the right,
at any time during the Lease Term and at its sole cost and expense, to install
and connect within the Building a
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telco equipment riser from any basement level "demarc" location of any
telecommunication provider servicing the Building to the Premises and/or to
either of the existing telephone "closets" on the 10th floor of the Building;
provided, however, the specific location(s) of the aforesaid riser shall be
subject to the prior approval of Landlord. Tenant shall also have the right, at
any time during the Lease Term and at its sole cost and expense, to install
within the mechanical room on the l0th floor of the Building a separate heat
pump to provide 24 hour computer room cooling for the Premises, which pump shall
be connected to the Building's condenser water system; provided, however, the
specific location(s) of the aforesaid pump shall be subject to the prior
approval of Landlord and the installation thereof shall be subject Landlord's
supervision and technical criteria. Tenant's installation of the telco riser and
the heat pump, as provided herein, shall be carried out in accordance with and
subject to the provisions of Article 10 hereof.
2.5 Cancellation by Landlord. Landlord shall have the right to
cancel this Lease, subject to the following:
(a) Landlord shall have the right to give Tenant written
notice cancelling this Lease, within thirty (30) days following the occurrence
of any of the following:
(i) KPMG Peat Marwick, or its successors or
assignees, (collectively, "Peat") exercises any option Peat has to Lease all or
any portion of the Premises;
(ii) Peat surrenders to Landlord that portion of the
tenth (10) floor of the Building which Peat is occupying as of the Commencement
Date; or,
(iii) Tenant exercises its right to cancel that
certain lease entered into by and between Landlord and Tenant with respect to
portions of the eighteenth floor (18th) of the Building (the "Other Lease");
(b) In the event Landlord gives Tenant notice within the
time and in the manner provided for in (a) above, then this Lease shall be
terminated on the date which is ninety (90) days following the date Tenant
receives Landlord's cancellation notice;
(c) If Tenant has received a cancellation notice from
Landlord, then Tenant, prior to the scheduled date of termination and at its
sole cost and expense, shall remove any and all improvements, fixtures, and
equipment installed by Tenant in the Premises and repair any and all damage to
the Premises (as well as to any other parts of the Building) resulting from
either the installation or removal of Tenant's improvements, fixtures, and
equipment; provided, however, Landlord's cancellation notice may provide a
request that Tenant's improvement and fixtures (but not Tenant's movable
equipment) remain on the Premises following the termination, in which event
Tenant shall leave such items;
(d) Upon the date of termination (as set forth in (c)
above), Landlord and Tenant shall have no further rights or obligations under
the Lease (nor shall Tenant have any other rights with respect to the Premises),
except that Tenant shall remain liable to Landlord with respect to (i) any
indemnity obligations as set forth in Article 12 below or elsewhere in this
Lease, (ii) any and all costs which may be incurred to remove items and repair
the Premises if Tenant has not complied with (c) above , and (iii) any damages
with respect to any default by Tenant under this Lease occurring after the
sending of its notice of cancellation but prior to the date of termination.
2.6 Cancellation by Tenant. Tenant shall have the right to cancel
this Lease, subject to the following:
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(a) Tenant shall give Landlord written notice of its
election to cancel the Lease not earlier than January 1, 1997 nor later than
December 1, 1997.
(b) Tenant may not exercise its cancellation right if Tenant
is in default in the performance of any of the terms and conditions of this
Lease or of the Other Lease, which default continues after the expiration of any
grace period and the giving of any notice, as provided in Article 16 below or in
the Other Lease. Any notice of cancellation given by Tenant while Tenant is in
default shall be of no force and effect. The period of exercise of any
cancellation shall not be extended for any period in which Tenant is in default.
(c) In the event Tenant gives Landlord notice within the
time and in the manner provided for in (a) above, then this Lease shall be
terminated on the date which is the later of (i) ninety (90) days following the
date Landlord receives Tenant's cancellation notice, or (ii) the date Tenant, at
its sole cost and expense, removes any and all improvements, fixtures, and
equipment installed by Tenant in the Premises and repairs any and all damage to
the Premises (as well as to any other parts of the Building) resulting from
either the installation or removal of Tenant's improvements, fixtures, and
equipment; provided, however, following Tenant's notice of cancellation,
Landlord may provide written notice to Tenant requesting that Tenant's
improvement and fixtures (but not Tenant's movable equipment) remain on the
Premises following the termination, in which event Tenant shall leave such
items;
(d) Upon the date of termination (as set forth in (c)
above), Landlord and Tenant shall have no further rights or obligations under
the Lease (nor shall Tenant have any other rights with respect to the Premises),
except that Tenant shall remain liable to Landlord with respect to (i) any
indemnity obligations as set forth in Article 12 below or elsewhere in this
Lease and (ii) any damages with respect to any default by Tenant under this
Lease occurring after the sending of its notice of cancellation but prior to the
date of termination.
ARTICLE 3
TERM
3.1 Term. This Lease shall extend for the term stated in Section 1.6
above (the "Lease Term") , commencing on June 1, 1996 (the "Commencement Date").
3.2 Lease Termination. This Lease shall terminate on May 31, 1996
(the "Termination Date"), unless earlier terminated as provided elsewhere in
this Lease.
3.3 Lease Year; Calendar Year. The term "Lease Year" shall mean each
successive twelve (12) calendar month period of the Lease Term, commencing on
the Commencement Date. The term "Calendar Year" shall mean each successive
twelve (12) calendar month period from January through December.
3.4 Option to Extend Lease Term. Landlord hereby grants to Tenant
one (1) option ("Option") to extend the Lease Term with respect to the Premises
on the following terms and conditions:
(a) The Option shall give Tenant the right to extend the
Lease Term for an additional ten (10) years (the "Extended Term");
(b) Tenant shall give Landlord written notice of its
exercise of the Option no later than one hundred eighty (180) days, nor earlier
than three hundred sixty (360), prior to the Termination Date;
(c) Tenant may not extend the Lease Term pursuant
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to this Section 3.4 if Tenant is in default in the performance of any of the
terms and conditions of this Lease and/or the Other Lease, which default
continues after the expiration of any grace period and the giving of any notice,
as provided in Article 16 below or in the Other Lease. Any notice of exercise of
the Option given by Tenant while Tenant is in default shall be of no force and
effect. The period of exercise of the Option shall not be extended for any
period in which Tenant is unable to exercise an Option by reason of Tenant's
default. If Tenant is in default on the date that the Extended Term is to
commence, then Landlord may elect to terminate this Lease pursuant to Section
16.2.1, notwithstanding any notice given by Tenant of the exercise of the
Option.
(d) All terms and conditions of this Lease shall apply
during the Extended Term, except that Base Rent for the Extended Term shall be
determined in accordance with Section 5.1.2 below;
(e) Once Tenant delivers notice of its exercise of the
Option, Tenant may not withdraw such exercise and, subject to the provisions of
this Section 3.4, such notice shall operate to extend the Lease Term. Upon the
extension of the Lease Term pursuant to this Section 3.4, the term "Lease Term"
as used in this Lease shall thereafter include the Extended Term and the
Termination Date shall be the expiration date of the Extended Term.
ARTICLE 4
POSSESSION
4.1 "As is" Condition. Subject to Landlord's obligation to repaint
and install electrical plugs (as set forth in Section 2.4 above), on the
Commencement Date, Landlord shall be deemed to have delivered possession of the
Premises to Tenant and Tenant shall be deemed to have accepted the Premises in
its "As Is" condition.
ARTICLE 5
RENT
5.1 Base Rent.
5.1.1 Initial Lease Term. Beginning on the Commencement Date,
Tenant agrees to pay to Landlord the base rent set forth in Section 1.9 above
(the "Base Rent") on or before the first day of each calendar month during the
Lease Term (including the Extended Term). Base Rent for any period during the
Lease Term which is for less than one (1) month shall be prorated based upon a
thirty (30) day month. Base Rent shall be paid to Landlord without demand,
deduction, or offset, in lawful money of the United States of America, at
Landlord's address set forth in Section 1.15 above or such other place as
Landlord may from time to time designate in writing.
5.1.2 Extended Term. If Tenant elects to extend the Lease Term
pursuant to Section 3.4 above, Base Rent for the Extended Term shall be an
amount equal to the then fair market rental value of the Premises in relation to
market conditions as of the first day of such Extended Term. "Fair market
rental value" shall be determined as follows:
(a) Mutual Agreement. After timely receipt by
Landlord of Tenant's notice of exercise of the Option, Landlord and Tenant shall
have a period of thirty (30) days in which to agree on the fair market rental
value of the Premises. If Landlord and Tenant agree on the fair market rental
value for the Premises, then they shall immediately execute an amendment to this
Lease stating such agreed upon fair market rental value as the Base Rent for the
Extended Term. If Landlord and Tenant are unable to so agree upon the fair
market rental value for the Premises, the provisions of Subsection (b) below
shall apply.
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(b) Appraisal. Within five (5) days after the
expiration of the thirty (30) day period described in (a) above, each party, at
its cost and by giving notice to the other party, shall appoint an M.A.I. real
estate appraiser, with at least five (5) years full-time commercial appraisal
experience in Santa Xxxxx County, to appraise and set the fair market rental
value of the Premises. If a party does not appoint an appraiser within five (5)
days after the other party has given notice of the name of its appraiser, the
single appraiser appointed shall be the sole appraiser and shall set the fair
market rental value. The cost of such sole appraiser shall be borne equally by
the parties. If two appraisers are appointed by the parties as provided in this
Section 5.1.2 (b), the two appraisers shall meet promptly and attempt to set the
fair market rental value. If they are unable to agree within twenty (20) days
after the last appraiser has been appointed, then the two appraisers shall
attempt to select a third appraiser meeting the qualifications stated in this
Section 5.1.2(b) within ten (10) days after the last day the two appraisers are
given to set the fair market rental value. If they are unable to agree on the
third appraiser, either of the parties to this Lease, by giving ten (10) days
notice to the other party, may apply to the presiding judge of the Superior
Court of Santa Xxxxx County for the selection of a third appraiser who meets the
qualifications stated above. Each of the parties shall bear one-half (1/2) of
the cost of appointing the third appraiser and of paying the third appraiser's
fee. The third appraiser, however selected, shall be instructed to select which
of the two appraisals submitted by the parties' respective appraisers more
closely represents the fair market rental value for the Premises, which
selection shall be the fair market rental value of the Premises. In establishing
the fair market rental value, the appraiser or appraisers shall consider the
reasonable market rental value for the use of the Premises permitted in this
Lease (which shall include, but not be limited to, considerations of rental
rates for comparable space with comparable tenant improvements, cost of living
or other rental adjustments, and/or the relative strength of the tenants)
without regard to (i) the Base Rent applicable to the initial Lease Term, and
(ii) any alterations, additions or improvements to the Premises paid for by
Tenant. In addition to the foregoing, Landlord and Tenant shall instruct the
appraiser or appraisers to determine the fair market rental value of the
Premises on a full service basis; i.e., the fair market rental value shall be
inclusive of Tenant's Percentage Share of Operating Expenses projected for the
first Lease Year of the Extended Term.
5.2 Late Charges. If any installment of Base Rent or any other sum
due from Tenant under this Lease shall not be received by Landlord or Landlord's
designee within ten (10) days from when the same is due, then there shall become
automatically due (without notice or demand from Landlord), and Tenant shall pay
to Landlord, a late charge equal to ten percent (10%) of each overdue amount.
The parties hereby agree that such late charge represents a fair and reasonable
estimate of the cost which Landlord will incur by reason of the late payment by
Tenant. Acceptance of such late charges by the Landlord shall in no event
constitute a waiver of a Default by Tenant with respect to such overdue amount,
nor prevent Landlord from exercising any of the other rights and remedies
granted or implied pursuant to the terms of this Lease.
5.3 Additional Rent. All sums which Tenant is required to pay
hereunder, including, without limitation, the amounts and charges set forth in
Article 6 and in Section 13.2, with any and all late charges and, pursuant to
Section 19.9 below, interest that may accrue thereon), and all damages, costs
and expenses which Landlord may incur by reason of any default by Tenant shall
be additional rent hereunder ("Additional Rent"). In the event of nonpayment by
Tenant of any Additional Rent, Landlord shall have all of the rights and
remedies with respect thereto as Landlord has for the nonpayment of Base Rent.
The term "Rentals" as used in this Lease shall mean Base Rent and Additional
Rent.
5.4 [Intentionally Omitted]
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5.5 Rent Deposit. Upon execution of this Lease, Tenant shall deposit
with Landlord an amount equal to Nineteen Hundred Eighty-six Dollars ($1986.00)
as a deposit for the Base Rent due for the first month of the Lease Term.
ARTICLE 6
TENANT'S PERCENTAGE SHARE OF EXCESS OPERATING EXPENSES
6.1 Definition of Operating Expenses. The term "Operating Expenses"
shall mean:
(a) All costs, expenses and fees paid or incurred by
Landlord for the operation, maintenance, repair and management of the Premises,
Building, Common Area (defined below), and Property which shall include, without
limitation, the costs and expenses with respect to the following: services
supplied to the Premises, Building and Common Area; security protection; water;
HVAC; sewage, trash removal; fuel; electricity; heat; lighting systems; fire
protection; storm drainage and sanitary sewer systems; materials; supplies;
tools; equipment; rental of equipment; service agreements on equipment; Building
insurance and other insurance (in such amounts and providing such coverage as
determined in Landlord's sole discretion); maintenance and repair of all
intrabuilding phone and network cabling; maintenance and repair of the roof of
the Building and the structural parts of the Building; outside contractors
employed in connection with the operation, maintenance, repair, and management
of the Premises, Building and Common Area; fees for licenses and permits
required for the operation of the Building and Common Area; contesting or
complying with rules, regulations and orders of governmental authorities,
including any required alterations and repairs required in connection therewith;
accounting and legal fees; management fees and the fair rental value of the
management office maintained in the Building by the property manager;
maintenance, repair and operation of all parking areas and facilities for the
Building; compliance with any obligations of Landlord under the Ground Lease to
maintain, repair, and insure any "common areas," as said term is defined in the
Ground Lease; maintenance, repair and operation of the public plaza in front of
the Building; compliance with any "Allocable Share Agreement" with respect to
the Silicon Valley Financial Center Project to which Landlord may be a party;
the maintenance, repair or operation of any other public or nonpublic areas or
improvements, whether or not such areas or improvements are contiguous or
adjacent to the Building or the Property; capital improvements to the Building
which actually reduce or eliminate other Operating Expenses (provided, however,
costs for such capital improvements shall only be included within Operating
Expenses to the extent of any actual reduction or elimination of other Operating
Expenses); capital costs incurred as a result of complying with any laws of
general applicability to the Building, the Property and/or the Premises; and,
(b) All real estate taxes; personal property taxes (except
as provided in Section 14.1 below); taxes computed or based on rental income or
on square footage of the Premises or the Building (other than federal, state and
municipal net income taxes); environmental surcharges; water and sewer taxes;
any taxes which may be due pursuant to Health and safety Code Section 33673;
subject to Section 14.2 below, all taxes and assessments levied, assessed or
imposed on the Interior Improvements and any alterations made by Tenant to the
Premises; and all other governmental impositions of any kind and nature
whatsoever, regardless of whether now customary or within the contemplation of
the parties hereto and regardless of whether resulting from increased rate
and/or valuation, or whether extraordinary or ordinary, general or special,
unforeseen or foreseen, or similar or dissimilar to any of the foregoing which
during the Lease Term are laid, levied, assessed or imposed or become a lien
upon or chargeable against the Premises, Building, Common Area and/or Property.
Notwithstanding anything to the contrary in the definition of
"Operating Expenses," Operating Expenses shall not include the
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following:
(i) any Ground Lease rentals;
(ii) all expenditures required by Landlord's failure
to comply with laws enacted on or before the Commencement Date;
(iii) any cost to the extent reimbursed to Landlord
from any source (including insurance or condemnation proceeds);
(iv) costs, including permit, license and inspection
costs, incurred with respect to the installation of tenant improvements made for
other tenants or occupants in the Building or incurred in renovating or
otherwise improving, decorating, painting or redecorating vacant space for other
(or prospective) tenants or occupants of the Building;
(v) depreciation on the Building, the Property or
any equipment or machinery;
(vi) leasing commissions, attorneys' fees and other
costs and expenses incurred in connection with negotiations or disputes with
present or prospective other tenants or occupants of the Building, or in
connection with any financing or refinancing negotiations with lenders and/or
the Agency, as ground lessor; and,
(vii) except as to the amounts described in the last
eight (8) lines of subsection (a) above, costs incurred by Landlord for
alterations which are considered capital improvements and replacements under
generally accepted accounting principles, consistently applied.
In the event any Operating Expense constitutes a capital expenditure (as
determined in accordance with generally accepted accounting principles), the
subject capital expenditure (together with interest equal to any interest
actually paid by Landlord, to the extent that the capital expenditure in
question has been financed by Landlord) shall be amortized on a monthly basis
over the maximum useful life of the item for which the expenditure was made, and
only the amortized amount allocable to a Calendar Year shall be included as an
Operating Expense for such year.
In the event that the Building is less than ninety-five Percent (95%)
occupied during any Calendar Year, or in the event all of the Building is not
provided with Building standard services during any Calendar Year, an adjustment
shall be made in computing Operating Expenses for such Calendar Year so that the
Operating Expenses shall be computed as though the Building had been ninety-five
percent (95%) occupied or ninety-five percent (95%) of the Building had been
supplied with Building standard services during such year. For the purposes of
the aforesaid adjustment, any required projections of Operating Expenses shall
be reasonably determined by Landlord. The "Tenant's Percentage Share" set forth
in the lease of each tenant of the Building shall be prima facie evidence of
each such tenant's percentage of occupancy of the Building for the purposes of
such projection. Such adjusted Operating Expenses shall be used as the basis for
determining Tenant's share of Excess Operating Expenses under Section 6.2 below.
6.2 Determination of Tenant's Percentage Share of Excess Operating
Expenses. Commencing in the Calendar Year 1997, Tenant shall pay, in accordance
with Section 6.3 below, Tenant's Percentage Share of an amount equal to the
excess of (a) the Operating Expenses paid by Landlord in the Calendar Year in
question, over (b) the Operating Expenses paid by Landlord during the Base Year
for Operating Expenses (the aforesaid excess to be paid by Tenant is referred to
in this Lease as "Tenant's Percentage Share of Excess Operating Expenses").
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6.3 Payment of Tenant's Percentage Share of Excess Operating
Expenses. Tenant's Percentage Share of Excess Operating Expenses shall be paid,
as Additional Rent, in monthly installments on the first day of each month, in
advance, without deduction, offset or prior demand, as follows:
(a) At any time prior to the end of the Base Year for
Operating Expenses, Landlord may give Tenant written notice of Landlord's
estimate of the amount, if any, of Tenant's Percentage Share of Excess Operating
Expense for the following Calendar Year. An amount equal to one-twelfth (1/12)
of the aforementioned estimate shall be payable monthly by Tenant as aforesaid,
commencing on the first day of the calendar month of the following Calendar Year
and continuing until receipt of any notice of adjustment from Landlord given
pursuant to subsections (b) or (c) below.
(b) Prior to or during the last calendar month of each
subsequent Calendar Year during the Lease Term or as soon as practicable
thereafter, Landlord may give Tenant written notice of Landlord's estimate of
the amount of Tenant's Percentage Share of Excess Operating Expenses for the
next succeeding Calendar Year. An amount equal to one-twelfth (1/12) of the
aforesaid estimate shall be payable monthly by Tenant as aforesaid, commencing
on the first day of the calendar month following Landlord's notice and
continuing throughout the Lease Term, subject to further adjustments following
receipt of any notice of increase from Landlord given pursuant to this
subsection (b) or subsection (c) below.
(c) Landlord may at any time during any Calendar Year of the
Lease Term adjust estimates of Tenant's Percentage Share of Excess Operating
Expense to reflect current expenditures and, following written notice to Tenant
of such revised estimate, subsequent payments by Tenant shall be based upon such
revised estimate.
(d) Within one hundred eighty (180) days after the end of
each Calendar Year during the Lease Term or after the Termination Date or as
soon thereafter as practicable, Landlord will furnish to Tenant a statement of
the actual Operating Expenses paid or incurred by Landlord during the preceding
Calendar Year, and thereupon within ten (10) days an adjustment will be made by
payment to Landlord or repayment by Landlord (which repayment may be made by
credit to Rentals becoming due, as Landlord shall determine), as the case may
require, to the end that Landlord shall receive the entire amount of Tenant's
Percentage Share of Excess Operating Expenses and no more. Such statements shall
be binding upon Landlord and Tenant. Failure by Landlord to submit to Tenant
such operating statement within the one hundred eighty (180) day period does not
relinquish Landlord's right to xxxx and collect such expenses from Tenant.
Tenant at its expense shall have the right at any reasonable time within twelve
(12) months after the end of a Calendar Year to audit Landlord's books and
records relating to Operating Expenses for any Calendar Year, or at Landlord's
sole discretion, Landlord will provide such audit prepared by a certified public
accountant. If the Termination Date shall be on a day other than the last day of
a Calendar Year, the amount of any adjustment to be made pursuant to this
subsection (d) for the Calendar Year in which the Termination Date falls shall
be prorated on the basis which the number of days from the commencement of such
Calendar Year to and including such Termination Date bears to three hundred
sixty-five (365). The termination of this Lease shall not affect the
obligations of Landlord and Tenant pursuant to this subsection (d).
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ARTICLE 7
USE OF PREMISES
7.1 Permitted Uses. Tenant shall use and occupy the Premises only
for the purposes set forth in Section 1.13 above. Tenant shall continuously and
without interruption use the Premises for such purpose throughout the entire
Lease Term. Tenant shall not use or permit the Premises to be used for any other
purpose without the prior written consent of Landlord.
7.2 Limitations. Tenant shall not do or permit anything to be done
in or about the Premises nor bring or keep anything therein which will in any
way damage the Building or any part thereof, cause an increase in the existing
rate of any fire or other insurance upon the Building or any of its contents, or
cause the cancellation of any insurance policy covering the Building or any part
thereof or any of its contents. Tenant shall not use or operate any equipment,
machinery or apparatus within the Premises which will (a) injure, vibrate or
shake the Premises or the Building, (b) overload or damage existing
intra-building cabling (including, without limitation, fiber optic lines,
connections and related equipment), electrical systems or other utilities or
equipment servicing the Premises or Building, or (c) impair the efficient
operation of the sprinkler system (if any) or the heating, ventilating and air
conditioning equipment within or servicing the Premises or the Building. All
noise, noises or odors generated by Tenant's use of the Premises shall be
muffled or contained in such a manner that they do not interfere with the
businesses of other tenants within the Building. Tenant shall not change the
exterior of the Building or install any equipment, antenna, machinery or other
device on or make any penetrations of the exterior or roof of the Building.
Tenant shall not do or permit anything to be done in or about the Premises which
will in any way obstruct or interfere with the rights of Landlord, or other
tenants or occupants of the Building, or injure or annoy them, or use or allow
the Premises to be used for any improper, immoral, unlawful or objectionable
purpose, nor shall Tenant cause, maintain or permit any nuisance in, on or about
the Premises. Tenant shall not commit or suffer to be committed any waste in or
upon the Premises.
7.3 Compliance with Law. Tenant shall not use the Premises or permit
anything to be done in or about the Premises or Building which will in any way
conflict with any law, statute, ordinance or governmental rule or regulation now
in force or which may hereafter be enacted or promulgated. Tenant shall, at its
sole cost and expense, promptly comply (a) with all laws, statutes, ordinances
and governmental rules, regulations or requirements now in force or which may
hereafter be in force (including, without limitation, any and all laws relating
to the operation and maintenance of the specialized equipment and fixtures
installed in the Premises by Tenant), and (b) with the requirements of any board
of fire insurance underwriters or other similar bodies now or hereafter
constituted; provided, however, Tenant shall not be required to make structural
changes not related to or affected by Tenant's improvements or its use or
occupancy of the Premises. The judgment of any court of competent jurisdiction
or the admission of Tenant in any action against Tenant, whether Landlord be a
party thereto or not, that Tenant has violated any law, statute, ordinance or
governmental rule, regulation or requirement, shall be conclusive of that fact
as between the Landlord and Tenant.
7.4 Signs; Directory
7.4.1 Placement of Signs. Landlord, at Landlord's expense,
shall place signage with Tenant's name in the elevator lobby of the tenth (l0th)
floor of the Building and at the entrance to the Premises. The aforesaid signage
will be comprised of Building standard lettering and materials.
Tenant shall not inscribe, paint, affix, place or permit to be placed
any other sign, advertisement, notice, logo or placard
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anywhere in the Common Areas, or in the Building, or anywhere in the Premises
which is visible from any Common Area or from outside of the Building without
the prior written consent of Landlord, which consent may be withheld in
Landlord's sole discretion. If Tenant installs any signage or other such items
without Landlord's consent, Tenant, at its sole expense, shall remove the same
promptly upon request by Landlord to do so and shall repair any damage arising
therefrom. If Tenant fails to do so, Landlord may cause such removal and repair
to be performed on Tenant's behalf at Tenant's expense, and the cost thereof
shall be Additional Rent hereunder.
7.4.2 Building Directory. Tenant shall be named in the
Building directory. Additional names may be placed in or removed from the
directory at the discretion of Landlord but at the sole expense of Tenant.
Landlord reserves the right to limit the number of names to be placed on the
directory for each tenant of the Building.
ARTICLE 8
THE COMMON AREA
8.1 Tenant's Nonexclusive Right, to Use. The "Common Area" shall
mean those portions of the Building and Property, and all those facilities
within the boundaries of the Property and within the Building, which are
intended for the nonexclusive use of Tenant in common with other tenants and
authorized users, including, but not limited to, entrances, lobbies, halls,
corridors, service areas and the subterranean parking garage under the Building.
Landlord hereby grants to Tenant and Tenant's agents, employees, invitees,
guests and customers the nonexclusive right to use the Common Area in common
with Landlord, Landlord's agents, and with other tenants and authorized users of
the Building, subject to the provisions of this Lease.
8.2 Landlord's Control. Landlord shall at all times during the Term
of this Lease have exclusive control of the Common Area. In this connection,
Landlord shall have the right, without the same constituting an actual or
constructive eviction, and without entitling Tenant to any abatement of Rentals
or other sums payable hereunder to:
(a) Temporarily close any part of the Common Area to
whatever extent required in the reasonable judgment of Landlord's counsel to
prevent a dedication thereof or the accrual of any prescriptive rights therein;
(b) Temporarily close any part of the Common Area to,
perform maintenance or for any other reason deemed sufficient by Landlord in its
reasonable judgment;
(c) Change the shape, size, location and extent of
improvements on the Common Area;
(d) Eliminate or add any improvements;
(e) Select a person to maintain and operate any of the
Common Area at any time Landlord determines that the best interests of the
Property will be served by having the Common Area maintained and operated by
that person;
(f) Make reasonable changes to the Common Area including, by
way of illustration and not limitation, changes in the location of driveways,
entrances, passageways, doors and doorways, elevators, stairs, common restrooms,
exits, parking spaces, parking areas, sidewalks, traffic flow patterns and the
site of the Common Area (but in no event decrease the number of Tenant's Allowed
Parking Spaces as set forth in Section 1.12 above); and/or
(g) Change the name or, the address of the Building.
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The use of the Common Area shall be subject to such reasonable
regulations and changes therein as Landlord shall make from time to time. Tenant
shall keep the Common Area free and clear of all obstructions created or
permitted by Tenant.
ARTICLE 9
REPAIRS AND MAINTENANCE
9.1 Tenant's Obligations. By taking possession of the Premises,
Tenant shall be deemed to have accepted the Premises as being in good, sanitary
order, condition and repair. Subject to Section 9.2 below, Tenant shall, at
Tenant's sole cost and expense, keep the Premises and every part thereof in good
condition and repair, ordinary wear and tear excepted. Tenant shall upon the
expiration or sooner termination of the Lease Term surrender the Premises to the
Landlord in good condition, ordinary wear and tear expected. Landlord shall have
no obligation whatsoever to alter, remodel, improve, repair, decorate or paint
the Premises or any part thereof and the parties hereto affirm that Landlord has
made no representations to Tenant respecting the condition of the Premises or
the Building except as specifically herein set forth.
9.2 Landlord's Obligations. Except as otherwise provided in Section
9.3 below and without regard to responsibility for payment, Landlord shall
repair and maintain, in reasonably good condition, the following: (a) the
structural parts of the Building (including foundation, load-bearing and
exterior walls, subflooring and roof); (b) the Common Area, including all
landscaped areas and all parking areas and facilities for the Building; (c) all
electrical, plumbing, sewage and other utility lines and equipment, including
HVAC servicing the Building, which has been installed or furnished by Landlord;
and (d) all exterior windows. Landlord shall not be liable for any failure to
make any such repairs or to perform any maintenance unless such failure shall
persist for an unreasonable time after proper written notice of the need for
such repairs or maintenance is given to Landlord by Tenant. There shall be no
abatement of rent (unless Landlord receives rental loss insurance proceeds and
then only to the extent such proceeds are received and retained by Landlord),
and there shall be no liability of Landlord by reason of any injury to or
interference with Tenant's business (excluding personal injury or property
damage) arising from the making of any repairs, alterations or improvements in
or to any portion of the Building or the Premises or in or to fixtures,
appurtenances and equipment therein. Tenant waives the right to make repairs at
Landlord's expense under any law, statute or ordinance now or hereafter in
effect.
9.3 Tenant's Negligence. Anything in this Article 9 to the contrary
notwithstanding, Tenant shall pay for all damage to the Premises or the Building
caused by the negligence or willful misconduct of Tenant, its agents, employees,
assignees, sublessees, contractors, or invitees or by the failure of Tenant to
promptly discharge its obligations under this Lease or otherwise comply with the
terms hereof.
ARTICLE 10
ALTERATIONS AND ADDITIONS
10.1 Restrictions. Tenant shall not make or suffer to be made any
alterations, additions or improvements to or of the Premises or any part thereof
without the prior written consent of Landlord. Landlord's consent to any
proposed alterations may be conditioned on Landlord's receipt, review and
approval of the plans and specifications for the proposed alterations, and of
such other items relating to the proposed alterations as Landlord may request.
Any alterations, additions or improvements to or of the Premises, including, but
not limited to, wall coverings, carpeting, paneling and built-in cabinet work,
but excepting movable furniture and trade fixtures, shall on the expiration of
the Lease Term, or earlier termination of this Lease, become a part of the
Building and belong to the Landlord and, unless required to be removed as
specified below, shall be surrendered with the Premises. In the
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event Landlord consents to the making of any alterations, additions or
improvements to the Premises by Tenant, the same shall be made by Tenant at
Tenant's sole cost and expense, and any contractor or person selected by Tenant
to make the same must first be approved of in writing by the Landlord. All
construction undertaken by Tenant shall be done in accordance with all laws and
in a good and workmanlike manner using new materials of good quality. Tenant
shall not commence construction of any alterations, additions or improvements to
the Premises which have been approved by Landlord until:
(a) All required governmental approvals and permits have
been obtained;
(b) All insurance requirements of this Lease have be
satisfied;
(c) Tenant shall have given Landlord at least ten (10) days
prior written notice of its intent to commence construction;
(d) Tenant shall have fully complied with any conditions
which Landlord has imposed in connection with its approval of Tenant's
alterations;
(e) Tenant shall have notified Landlord by telephone of the
commencement of construction on the day it commences; and
(f) If requested by Landlord, Tenant shall have obtained
contingent liability and broad form builders risk insurance in an amount
satisfactory to Landlord if there are any perils relating to the proposed
construction not covered by insurance carried pursuant to Article 12 below.
Upon the expiration or sooner termination (including a cancellation by
Landlord or Tenant pursuant to Article 2) of the Lease Term, Tenant shall,
unless otherwise requested by Landlord, at Tenant's sole cost and expense,
forthwith and with all due diligence remove any alterations, additions, or
improvements made by Tenant, designated by Landlord to be removed, and Tenant
shall repair any damage to the Premises caused by such removal.
10.2 Alterations Recruited By Law. Tenant shall, upon Landlord's
consent and subject to the provisions of Section 10.1 above, make any additional
alterations, additions or improvements of any sort, whether structural or
otherwise, to the Premises that are required by any law in connection with:
(a) Tenant's use of any specialized equipment, fixtures,
cabling, and/or components, and any change of use of the Premises,
(b) Tenant's application for any permit or governmental
approval, or
(c) Tenant's construction or installation of any leasehold
improvements or trade fixtures pursuant to Section 10.1 (and Section 2.4) above.
10.3 Liens. Tenant shall keep the Premises, the Building and the
Property free from any liens arising out of any work performed, materials
furnished or obligations incurred by Tenant. Landlord may require, at Landlord's
sole option, Tenant to provide to Landlord a lien and completion bond in an
amount equal to one and one-half (1-1/2) times the estimated cost of any
improvements, additions, or alterations in the Premises, to insure Landlord
against any liability for mechanics, and materialmen's liens and to insure
completion of the work. Any lien filed against the Premises, Building, or
Property for any work claimed to have been done for, or materials claimed to
have been furnished to, Tenant shall be released or discharged by Tenant, at its
sole cost, within
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ten (10) days of such filing. In the event Landlord acts to remove any lien
filed against the Premises, Tenant shall, upon demand and as Additional Rent,
reimburse Landlord for any costs and expenses expended in connection therewith,
which costs shall include an administrative fee equal to fifteen percent (15%)
of the amount of the lien so removed by Landlord.
10.4 Landlord's Improvements. All fixtures, improvements or equipment
which are installed or constructed on or attached to the Property or Building by
Landlord at its expense shall become a part of the Building and belong to
Landlord.
ARTICLE 11
ASSIGNMENT AND SUBLETTING
11.1 In General. Tenant shall not voluntarily sell, assign or
transfer all or any part of Tenant's interest in this Lease or in the Premises
or any part thereof, sublease all or any part of the Premises, or permit all or
any part of the Premises to be used by any person or entity other than Tenant or
Tenant's employees, except as specifically provided in this Article 11.
11.2 Voluntary Assignment and Subletting.
11.2.1 Notice to Landlord. Tenant shall, by written notice,
advise Landlord of Tenant's desire on a stated date (which date shall not be
less than thirty (30) days nor more than ninety (90) days after the date of
Tenant's notice) to assign this Lease or to sublet all or any part of the
Premises for any part of the Lease Term. Tenant's notice shall state the name,
legal composition and address of the proposed assignee or subtenant, and Tenant
shall provide the following information to Landlord with said notice a true and
complete copy of the proposed assignment agreement or sublease; a financial
statement of the proposed assignee or subtenant certified as true and correct by
such assignee or subtenant and prepared in accordance with generally accepted
accounting principles within one (1) year prior to the proposed effective date
of the assignment or sublease; the actual use of the proposed assignee's or
subtenant's business to be carried on at the Premises; the payments to be made
or other consideration to be given on account of the assignment or sublease; a
current financial statement of Tenant; and such other pertinent information as
may be requested by Landlord, all in sufficient detail to enable Landlord to
evaluate the proposed assignment or sublease and the prospective assignee or
subtenant. Tenant's notice shall not be deemed to have been served or given
until such time as Tenant has provided Landlord with all information reasonably
requested by Landlord pursuant to this Section 11.2. Tenant shall immediately
notify Landlord of any modification to the proposed terms of such assignment or
sublease. Tenant may withdraw its notice at any time prior to the exercise by
Landlord of its rights pursuant to Section 11.2.2 below.
11.2.2 Landlord's Option. Within thirty (30) days of Landlord's
receipt of a notice of Tenant's intention to transfer its interest in this Lease
and/or the Premises to a third party, Landlord shall have the right to acquire
from Tenant the interest, or any portion thereof, in this Lease and/or the
Premises that Tenant proposes to transfer, on the same terms and conditions as
the proposed transfer.
11.2.3 Landlord's Consent. If Landlord does not exercise the
right set forth in Section 11.2.2 above within thirty (30) days after receipt of
Tenant's notice or if a proposed sublease is not subject to the provisions of
Section 11.2.2 above, Landlord shall not unreasonably withhold its consent to
the proposed assignment or subletting, on the terms and conditions specified in
said notice. Without otherwise limiting the criteria upon which Landlord may
withhold its consent to any proposed assignment or sublease, if Landlord
withholds its consent where Tenant is in default at the time of the giving of
Tenant's notice or at any time thereafter, or where the net worth of the
proposed
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assignee or subtenant (according to generally accepted accounting principles) is
less than net worth of Tenant at the time this Lease is executed, such
withholding of consent shall be presumptively reasonable. Any and all rent to be
paid by an assignee or subtenant, including, but not limited to, any rent in
excess of the Rentals to be paid under this Lease (prorated in the event that a
sublease or less than the entire Premises) ("Excess Rent"), shall be paid by
Tenant directly to Landlord, as Additional Rent, at the time and place specified
in this Lease. For the purposes of this Article 11, the term "rent" shall
include any consideration of any kind received, or to be received, by Tenant
from an assignee or subtenant, if such sums are related to Tenant's interest in
this Lease or in the Premises, including, but not limited to, key money, bonus
money and payments (in excess of the fair market value thereof) for Tenant's
assets, fixtures, trade fixtures, inventory, accounts, goodwill, equipment,
furniture, general intangibles and any capital stock or other equity ownership
interest of Tenant.
Any assignment or subletting without Landlord's consent shall be
voidable at Landlord's option and shall constitute a Default by Tenant.
Landlord's consent to any one assignment or sublease shall not constitute a
waiver of the provisions of this Article 11 as to any subsequent assignment or
sublease nor a consent to any subsequent assignment or sublease; further,
Landlord's consent to an assignment or sublease shall not release Tenant from
Tenant's obligations under this Lease, and Tenant shall remain Jointly and
severally liable with the assignee or subtenant.
11.2.4 Assumption of Obligations. In the event Landlord
consents to any assignment, such consent shall be conditioned upon the assignee
expressly assuming and agreeing to be bound by each of Tenant's covenants,
agreements and obligations contained in this Lease, pursuant to a written
assignment and assumption agreement in a form approved by Landlord. In the event
Landlord consents to a proposed assignment or sublease, such assignment or
sublease shall be valid and the assignee or subtenant shall have the right to
take possession of the Premises only if an executed original of the assignment
or sublease is delivered to Landlord, and such document contains the same terms
and conditions as stated in Tenant's notice to Landlord given pursuant to
Section 11.2.1 above, except for any such modifications to which Landlord has
consented in writing.
11.2.5 Collection of Rent. Tenant hereby irrevocably gives to
and confers upon Landlord, as security for Tenant's obligations under this
Lease, the right, power and authority to collect all rents from any assignee or
subtenant of all or any part of the Premises as permitted by this Section 11.2,
or otherwise, and Landlord, as assignee of Tenant, or a receiver for Tenant
appointed on Landlord's application, may collect such rent and apply it toward
Tenant's obligations under this Lease; provided, however, that until the
occurrence of any Default by Tenant or except as provided by the provisions of
Section 11.2.3 above, Tenant shall have the right to collect such rent. Upon the
occurrence of any Default by Tenant, Landlord may at any time without notice in
Landlord's own name xxx for or otherwise collect such rent, including rent past
due and unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable attorneys' fees, toward Tenant's obligations
under this Lease. Landlord's collection of such rents shall not constitute an
acceptance by Landlord of attornment by such subtenants; in the event of a
Default by Tenant, Landlord shall have all rights provided by this Lease and by
law, and Landlord may, upon re-entry and taking possession of the Premises,
eject all parties in possession or eject some and not others, or eject none, as
Landlord shall determine in Landlord's sole discretion. "Rent" shall not include
any revenue or income received by Tenant from any third party pursuant to any
"co-location" agreement or any other agreement or arrangement whereby such party
compensates Tenant for use of or connection to Tenant's equipment located on the
Premises.
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11.2.6 No Bonus Value. It is the intent of the parties hereto
that this Lease shall confer upon Tenant only the right to use and occupy the
Premises and to exercise such other rights as are conferred upon Tenants by this
Lease. The parties agree that this Lease is not intended to have a bonus value,
nor to serve as a vehicle whereby Tenant may profit by a future assignment or
sublease of this Lease or the right to use or occupy the Premises as a result of
any favorable terms contained herein or any future changes in the market for
leased space. It is the intent of the parties that any such bonus value that may
attach to this Lease shall be, and remain, the exclusive property of Landlord.
Items of revenue or income excluded from "rent" in the last sentence of 11.2.5
above shall be retained by Tenant and shall not be regarded as "bonus value"
under this Lease.
11.2.7 Corporate Transfers. Any dissolution, merger,
consolidation or other reorganization of Tenant, any sale or transfer (or
cumulative sales or transfers) of fifty percent (50%) or more of the capital
stock of Tenant, or any sale (cumulative sale) of all the assets of Tenant shall
be deemed an assignment of this Lease requiring the prior consent of Landlord;
provided, however, the sale or transfer of all or any of the capital stock of
the corporation which comprises Tenant, the capital stock of which is now or
hereinafter becomes publicly traded, shall not be deemed an assignment of this
Lease.
11.2.8 Reimbursement of Fees. Tenant shall reimburse Landlord
for its legal fees incurred in connections with Landlord's review of a proposed
assignment or sublet, which reimbursement shall not exceed Seven Hundred and
Fifty dollars ($750.00) per each proposed transfer.
11.2.9 Reasonable Provisions. Tenant expressly agrees that the
provisions of this Section 11.2 are not unreasonable standards or conditions for
purposes of Section 1951.4(b)(2) of the California Civil Code, as amended from
time to time.
11.3 Involuntary Transfer. No interest of Tenant in this Lease shall
be assignable by operation of law, including, without limitation, the transfer
of this Lease by testacy or intestacy. Each of the following acts shall be
considered an involuntary assignment:
(a) If Tenant is or becomes bankrupt or insolvent, makes an
assignment for the benefit of creditors, or a proceeding under the Bankruptcy
Act is instituted in which Tenant is the bankrupt; or, if Tenant is a
partnership or consists of more than one person or entity, if any partner of the
partnership or other person or entity is or becomes bankrupt or insolvent, or
makes an assignment for the benefit of creditors;
(b) Levy of a writ of attachment or execution on this Lease;
(c) Appointment of a receiver with authority to take
possession of the Premises in any proceeding or action to which Tenant is a
party; or
(d) Foreclosure of any lien affecting Tenant's interest in
the Premises, which lien was not consented to by Landlord pursuant to Section
11.4 below.
An involuntary assignment shall constitute a Default by Tenant and Landlord
shall have the right to terminate this Lease, in which case this Lease shall not
be treated as an asset of Tenant. In the event the Lease is not terminated, the
provisions of Section 11.2.3 above, regarding rents paid by an assignee or
subtenant and Section 11.2.6 above, shall apply. If a writ of attachment or
execution is levied on this Lease, or if any involuntary proceeding in
bankruptcy is brought against Tenant or a receiver is appointed, Tenant shall
have sixty (60) days in which to cause the attachment or execution to be
removed, the involuntary proceeding dismissed,
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or the receiver removed.
11.4 Hypothecation. Tenant shall not hypothecate, mortgage or
encumber Tenant's interest in this Lease or in the Premises or otherwise use
this Lease as a security device in any manner without the consent of Landlord,
which consent Landlord may withhold in its absolute discretion. Consent by
Landlord to any such hypothecation or creation of a lien or mortgage shall not
constitute consent to an assignment or other transfer of this Lease following
foreclosure of any permitted lien or mortgage.
11.5 Binding on Successors. The provisions of this Article 11
expressly apply to all heirs, successors, sublessees, assignees and transferees
of Tenant.
ARTICLE 12
INSURANCE AND INDEMNITY
12.1 Tenant's Liability Insurance. Tenant shall, at Tenant's expense,
obtain and keep in force during the term of this Lease a policy of comprehensive
public liability insurance, with liability limits of not less than One Million
Dollars ($1,000,000) combined single limit coverage per occurrence and with an
extended liability endorsement providing contractual liability (which shall
include coverage for Tenant's indemnity set forth in Section 12.3 below) and
broad form property damage coverage, insuring Landlord and Tenant against any
liability arising out of the ownership, use, occupancy or maintenance of the
Premises, the Building, the Common Area and all areas appurtenant thereto. The
limit of said insurance shall not, however, limit the liability of the Tenant
hereunder. Landlord may periodically during the Lease Term, but not more
frequently than once each twelve (12) months, increase the minimum liability
limits specified in this Section 12.1 to an amount equal to the then prevailing
minimum liability limits required by landlords of other similar properties in
Santa Xxxxx County of similar size and use. In the event Landlord and Tenant
agree to increase the rentable area of the Premises, Landlord may increase the
minimum liability limits set forth in this Section 12.1 in order to assure that
Tenant's activities in the Premises, as increased, are adequately insured.
Tenant may carry said insurance under a blanket policy, providing, however, said
insurance by Tenant shall be primary insurance (not requiring contribution from
any insurance carried by Landlord) and shall have a Landlord's protective
liability endorsement attached thereto. If Tenant shall fail to procure and
maintain said insurance, Landlord may, but shall not be required to, procure and
maintain same, but at the expense of Tenant. The insurance required hereunder
shall name Landlord as an additional insured and shall be in companies rated A+,
AAA, or better in "Best's Insurance Guide." Tenant shall deliver to Landlord
prior to occupancy of the Premises copies of policies of liability insurance
required herein or certificates evidencing the existence and amounts of such
insurance with loss payable clauses, satisfactory to Landlord. No policy shall
be cancelable or subject to reduction of coverage except after thirty (30) days,
prior written notice to Landlord.
12.2 Subrogation. Landlord hereby releases Tenant, and Tenant hereby
releases Landlord, and their respective officers, agents, employees and
servants, from any and all claims or demands of damages, loss, expense or injury
to the Premises, the Building, the Common Area, or the Property, or to the
furnishings, fixtures, equipment, inventory or other property of either Landlord
or Tenant in, about or upon the Premises, the Building, the Common Area, or the
Property which is caused by or results from perils, events or happenings which
are the subject of insurance carried by the respective parties and in force at
the time of any such loss, whether due to the negligence of the other party or
its agents and regardless of cause or origin; provided, however, that such
waiver shall be effective only to the extent permitted by the insurance covering
such loss and to the extent such insurance is not prejudiced thereby.
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12.3 Tenant's Indemnity. Tenant shall indemnify and hold harmless
Landlord against and from any and all claims arising from Tenant's use of the
Premises for the conduct of its business or from any activity, work, or other
thing done, permitted or suffered by the Tenant in or about the Building, and
shall further indemnify and hold harmless Landlord against and from any and all
claims arising from any breach or default in the performance of any obligation
on Tenant's part to be performed under the terms of this Lease, or arising from
any act or negligence of the Tenant, resulting from any construction activity
performed in or about the Premises, Building or adjacent properties, or any
officer, agent, employee, contractor, guest, or invitee of Tenant, and from all
and against all costs, attorneys' fees, expenses and liabilities incurred in or
about any such claim or any action or proceeding brought thereon, and, in the
event 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. Tenant, as a material
part of the consideration to Landlord, hereby assumes all risk of damage to
property or injury to any agents, employees, clients, contractors,
subcontractors, vendors, or invitees of Tenant in, upon, or about the Premises,
the Building and the Property from any cause other than Landlord's willful
misconduct or negligence, and Tenant hereby waives all claims in respect thereof
against Landlord.
12.4 Release of Liability. Landlord or its agents shall not be liable
for any injury or damage to persons or property resulting from fire, explosion,
falling plaster, steam, gas, electricity, water or rain which may leak from any
part of the Building or from the pipes, appliances or plumbing works therein or
from the roof, street or subsurface or from any other place resulting from
dampness or any other cause whatsoever, except as to any personal injury or
property damage resulting from the negligent or willful misconduct of Landlord
or its agents. Landlord or its agents shall not be liable for interference with
the light or other incorporeal hereditaments relating to the Premises, nor shall
Landlord be liable for any loss of business by Tenant, or for any latent defects
in the Premises or in the Building, except as otherwise expressly set forth in
this Lease. Tenant shall give prompt notice to Landlord in case of fire or
accidents in the Premises or in the Building, or of defects therein or in any
fixtures or equipment
12.5 Tenant's Insurance. Tenant shall, at Tenant's expense, obtain
and keep in force during the Lease Term an "All-Risk" property insurance policy,
which shall include, without limitation, coverage for earthquake, flood, boiler
and machinery damage (if applicable), sprinkler damage, vandalism and malicious
mischief, on all leasehold improvements installed in the Premises by Tenant at
its expense (if any) , and on all equipment, trade fixtures, inventory,
fixtures, furnishings and personal property located on or in the Premises. Such
insurance shall be in an amount equal to the full replacement cost of the
aggregate of the foregoing. Tenant shall also reimburse Landlord, as Additional
Rent and within ten (10) days following written demand, for any and all premiums
or additional premiums or other insurance related costs which are directly
attributable to Tenant's specific operations on the Premises or any equipment
and/or fixtures maintained or operated on the Premises.
ARTICLE 13
SERVICES AND UTILITIES
13.1 Landlord's Obligations. Provided there has not been a default by
Tenant hereunder, Landlord agrees to furnish, or cause to be furnished, to the
Premises the utilities and services described in the Standards for Utilities and
Services, attached hereto as Exhibit "D," subject to the conditions and in
accordance with the standards set forth therein. Landlord's failure to provide
Tenant any utilities or services by reason of accidents, breakdowns, strikes or
other labor disturbances, governmental action, or other causes beyond the
control of Landlord shall not
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result in liability to Landlord. Furthermore, Tenant shall not be entitled to
any abatement or reduction of Rentals, nor shall Tenant be relieved of the
obligation to perform any of its obligations hereunder, by reason of such
failure by Landlord. This Section shall not release Landlord from any duty to
repair, restore, replace or maintain the Premises which Landlord may have
pursuant to the terms of this Lease.
13.2 Tenant's Obligations. Tenant shall pay for the following;
(a) All telephone service and all other utilities and
services which may be furnished to or used in or about the Premises during the
Lease Term, which utilities and services are not expressly required to be
provided, or otherwise paid, for by Landlord;
(b) All Excess Utility Charges. "Excess Utility Charges"
shall mean all charges incurred by Landlord and/or the Building with respect to
HVAC and electrical power use which is consumed on the Premises during regular
Building hours (as set forth in subsection (b) of Exhibit "D") and which are in
excess of normal Building consumption (as reasonably determined by Landlord) ;
(c) All After-Hour Charges. "After-Hour Charges" shall mean
HVAC and electrical charges with respect to usage on the Premises after regular
Building hours, which After-Hour Charges shall be imposed at Landlord's standard
after-hour charge, as established by Landlord from time to time; provided,
however, Landlord may impose a higher After-Hour Charge to Tenant if Tenant's
base use of HVAC and Electrical is excess of normal Building consumption (as
reasonably determined by Landlord.
Tenant shall pay the items in (a) above directly to the service provider
prior to delinquency and shall pay the items in (b) and (c) above within ten
(10) days following a receipt of a statement or invoice from Landlord.
ARTICLE 14
PERSONAL PROPERTY TAXES
14.1 Taxes on Tenant's Property. Tenant shall pay, or cause to be
paid, before delinquency, any and all taxes levied or assessed which become
payable during the term hereof upon any improvements installed at Tenant's
expense, equipment, furniture, fixtures and personal property. In the event any
or all of the Tenant's improvements, equipment, furniture, fixtures and personal
property shall be assessed and taxed with the Building, Tenant shall pay to
Landlord its share of such taxes within ten (10) days after delivery to Tenant
by Landlord a statement in writing setting forth the amount of such taxes
applicable to Tenant's property.
14.2 Taxes on Improvements. If the Tenant Improvements and/or any
other improvements made to the Premises, whether installed and/or paid for by
Landlord or Tenant and whether or not affixed to the Property so as to become a
part thereof, are assessed for real property tax purposes at a valuation higher
than the valuation at which other tenant improvements conforming to Landlord's
normal standards for the Building in other space in the Building are assessed,
then the real property taxes and assessments levied against the Building by
reason of such excess assessed valuation shall be deemed to be taxes levied
against personal property of Tenant and shall be governed by the provisions of
Section 14.1 above. If the records of the County Assessor are available and
sufficiently detailed to serve as a basis for determining whether improvements
in the Premises are assessed at a higher valuation than Landlord's normal
standards, as aforesaid, such records shall be binding on both Landlord and
Tenant. If the records of the County Assessor are not available or sufficiently
detailed to serve as a basis for making said determination, the actual cost of
constructing the interior improvements in the Premises shall be used.
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ARTICLE 15
DAMAGE TO PREMISES
15.1 Definition of Terms. For the purposes of this Lease, the term:
(a) "Insured Casualty" means damage to or destruction of the Premises from a
cause actually insured against, for which the insurance proceeds paid or made
available to Landlord are sufficient to rebuild or restore the Premises under
then-existing building codes to the condition existing immediately prior to the
damage or destruction; and (b) "Uninsured Casualty" means damage to or
destruction of the Premises from a cause not actually insured against, or from a
cause actually insured against but for which the insurance proceeds paid or made
available to Landlord are for any reason insufficient to rebuild or restore the
Premises under then-existing building codes to the condition existing
immediately prior to the damage or destruction, or from a cause actually
insured against but for which the insurance proceeds are not paid or made
available to Landlord within sixty (60) days of the event of damage or
destruction.
15.2 Insured Casualty.
15.2.1 Rebuilding Required. In the event of an Insured Casualty
where the extent of damage or destruction is less than twenty-five percent (25%)
of the then full replacement cost of the Premises or the Building, Landlord
shall rebuild or restore the Premises or the Building substantially to the
condition existing immediately prior to the damage or destruction, provided the
damage or destruction was not a result of a negligent or willful act of Tenant
and that there exist no governmental codes or regulations that would interfere
with Landlord's ability to so rebuild or restore.
15.2.2 Landlord's Election. In the event of an Insured Casualty
where the extent of damage or destruction is equal to or greater than
twenty-five percent (25%) of the then full replacement cost of the Premises or
the Building, Landlord may rebuild or restore the Premises or the Building
substantially to the condition existing immediately prior to the damage or
destruction, or terminate this Lease. Landlord shall notify Tenant in writing
within sixty (60) days from the event of damage or destruction of Landlord's
election to either rebuild or restore the Premises or terminate this Lease.
15.3 Uninsured Casualty. In the event of an Uninsured Casualty,
Landlord may (i) rebuild or restore the Premises as soon as reasonably possible
at Landlord's expense (unless the damage or destruction was caused by a
negligent or willful act of Tenant, in which event Tenant shall pay all costs of
rebuilding or restoring), in which event this Lease shall continue in full force
and effect or (ii) terminate this Lease, in which event Landlord shall give
written notice to Tenant within sixty (60) days after the event of damage or
destruction of Landlord's election to terminate this Lease as of the date of the
event of damage or destruction, and if the damage or destruction was caused by a
negligent or willful act of Tenant, Tenant shall be liable therefor to Landlord.
15.4 Tenant's Election. Notwithstanding anything to the contrary
contained in this Article 15, Tenant may elect to terminate this Lease in the
event the Premises are damaged or destroyed and, in the reasonable opinion of
Landlord's architect or construction consultants, the restoration of the
Premises cannot be substantially completed within one hundred twenty (120) days
after the event of damage or destruction. Tenant's election shall be made by
written notice to Landlord within ten (10) days after Tenant receives from
Landlord the estimate of the time needed to complete repair or restoration of
the Premises. If Tenant does not deliver said notice within said ten (10) day
period, Tenant may not later terminate this Lease even if substantial completion
of the rebuilding or restoration occurs subsequent to said one hundred twenty
(120) day period, provided that Landlord is proceeding with diligence to rebuild
or restore the Premises. If Tenant delivers
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said notice within said ten (10) day period, this Lease shall terminate as of
the date of the event of damage or destruction.
15.5 Continuance of Lease. If Landlord is required or elects to
rebuild or restore the Premises pursuant to this Article 15, this Lease shall
remain in effect and Tenant shall have no claim against Landlord for
compensation for inconvenience or loss of business during any period of repair
or restoration.
15.6 Damage or Destruction Near End of Lease Term. Not withstanding
anything to the contrary contained in this Article 15, in the event the Premises
are damaged or destroyed in whole or in part (regardless of the extent of
damage) from any cause during the last twelve (12) months of the Lease Term,
Landlord may, at Landlord's option, terminate this Lease as of the date of the
event of damage or destruction by giving written notice to Tenant of Landlord's
election to do so within thirty (30) days after the event of such damage or
destruction. For purposes of this Section 15.6, if Tenant has been granted an
option to extend or renew the Lease Term pursuant to another provision of this
Lease, then the damage or destruction shall be deemed to have occurred during
the last twelve (12) months of the Lease Term if Tenant fails to exercise its
option to extend or renew within twenty (20) days of the event of damage or
destruction.
15.7 Termination of Lease. If the Lease is terminated pursuant to
this Article 15, the unused balance of the Security Deposit shall be refunded to
Tenant. Rentals shall be proportionately reduced during the period following the
event of damage or destruction until the date on which Tenant surrenders the
Premises, based upon the extent to which the damage or destruction interferes
with Tenant's business conducted in the Premises, as reasonably determined by
Landlord.
15.8 Abatement of Rentals. If the Premises are to be rebuilt or
restored pursuant to this Article 15, the then current Rentals shall be
proportionately reduced during the period of repair or restoration, based upon
the extent to which the making of repairs interferes with Tenant's business
conducted in the Premises, as reasonably determined by Landlord.
15.9 Liability for Personal Property. In no event shall Landlord have
any liability for, nor shall it be required to repair or restore, any injury or
damage to any improvements, alterations or additions to the Premises made by
Tenant, trade fixtures, equipment, merchandise, furniture, or any other property
installed by, Tenant or at the expense of Tenant. If Landlord or Tenant do not
elect to terminate this Lease pursuant to this Article 15, Tenant shall be
obligated to promptly rebuild or restore the same to the condition existing
immediately prior to the damage or destruction in accordance with the provisions
of Article 10 above.
15.10 Waiver of Civil Code Remedies. Landlord and Tenant acknowledge
that the rights and obligations of the parties upon damage or destruction of the
Premises are as set forth herein; therefore Tenant hereby expressly waives any
rights to terminate this Lease upon damage or destruction of the Premises,
except as specifically provided by this Lease, including without limitation any
rights pursuant to the provisions of Subdivision 2 of Section 1932 and
Subdivision 4 of Section 1933 of the California Civil Code, as amended from time
to time, and the provisions of any similar law hereinafter enacted, which
provisions relate to the termination of the hiring of a thing upon its
substantial damage or destruction.
ARTICLE 16
DEFAULT AND REMEDIES
16.1 Events of Default. Tenant shall be in default of this Lease upon
the occurrence of any of the following events:
(a) Tenant's failure to pay any Rentals within five
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(5) days from when the same is due, as provided in this Lease;
(b) Commencement and continuation for at least thirty (30) days of any
case, action or proceeding by, against or concerning Tenant under any federal or
state bankruptcy, insolvency or other debtor's relief law, including without
limitation, (i) a case under Title 11 of the United States Code concerning
Tenant, whether under Chapter 7, 11, or 13 of such Title or under any other
Chapter, or (ii) a case, action or proceeding seeking Tenant's financial
reorganization or an arrangement with any of Tenant's creditors;
(c) The occurrence of any of the following and the continuation
thereof for at least thirty (30) days:
(i) Voluntary appointment of a receiver, trustee, keeper or other
person who takes possession of substantially all of Tenant's assets or of any
asset used in Tenant's business on the Premises, regardless of whether such
appointment is as a result of insolvency or any other cause;
(ii) Involuntary appointment of a receiver, trustee, keeper or
other person who takes possession for more than thirty (30) days of
substantially all of Tenant's assets or of any asset used in Tenant's business
on the Premises, regardless of whether such appointment is as a result of
insolvency or any other cause;
(iii) Execution of an assignment for the benefit of creditors of
substantially all assets of Tenant available by law for the satisfaction of
judgment creditors;
(iv) Commencement of proceedings for winding up or dissolving
(whether voluntary or involuntary) the entity of Tenant, if Tenant is a
corporation or a partnership;
(v) Levy of a writ of attachment or execution on Tenant's
interest under this Lease, if such writ is not being contested and continues for
a period of ten (10) days;
(d) Transfer of this Lease or the Premises by Tenant contrary to the
provisions of Article 11 above;
(e) Breach by Tenant of any term, covenant, condition, warranty, or
other provision contained in this Lease (which shall incorporate all exhibits
attached hereto) or of any other obligation owing or due to Landlord, where
such breach continues for a period of thirty (30) days following written notice
from Landlord (or if such breach cannot be reasonably cured within thirty (30)
days, Tenant does not commence to cure the default within the aforesaid thirty
(30) day notice period and/or does not diligently and in good faith prosecute
the cure to completion after such period); or,
(f) Breach or default by Tenant of any of the terms or provisions of
the Other Lease (as defined in Section 2.5(b) above) and such breach or default
has not been cured following the giving of any notice and/or within any cure
period provided for in the Other Lease.
The term "Default by Tenant," as used in this Lease, shall mean and refer
to all of the events described in this Section 16.1.
16.2 Remedies. Upon any Default by Tenant, Landlord shall have the
following remedies, in addition to all other rights and remedies provided by
law, to which Landlord may resort cumulatively, or in the alternative:
16.2.1 Termination. Upon any Default by Tenant, Landlord shall have
the right (but not the obligation), by giving written notice, to terminate this
Lease and Tenant's right to possession of the Premises. The parties agree that
any notice given
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by Landlord to Tenant pursuant to this Section 16.2.1 shall be sufficient notice
for purposes of California Code of Civil Procedure Section 1161 and Landlord
shall not be required to give any additional notice in order to be entitled to
commence an unlawful detainer proceeding. In no event shall this Lease be
terminated unless and until Landlord expressly indicates in writing that this
Lease has terminated. Any exercise by Landlord of its right to terminate this
Lease shall not be construed as a termination of the Other Lease, which Other
Lease may only be terminated pursuant to the terms and provisions thereof. Upon
termination of this Lease, Landlord shall have the right to recover from Tenant:
(a) The worth at the time of award of the unpaid Rentals which had
been earned at the time of termination;
(b) The worth at the time of award of the amount by which the rentals
which would have been earned after termination until the time of award exceeds
the amount of such rental loss that Tenant proves could have been reasonably
avoided;
(c) The worth at the time of award (computed by discounting at the
discount rate of the Federal Reserve Bank of San Francisco at the time of award
plus one percent) of the amount by which the Rentals for the balance of the
Lease Term after the time of award exceed the amount of such rental loss that
Tenant proves could be reasonably avoided;
(d) Any other amounts necessary to compensate Landlord for all
detriment proximately caused by the Default by Tenant or which in the ordinary
course of events would likely result, including without limitation the
following:
(i) Expenses in retaking possession of the Premises;
(ii) Expenses for cleaning, repairing or restoring the Premises;
(iii) Any unamortized real estate brokerage commission paid in
connection with this Lease;
(iv) Expenses for removing, transporting and storing any of
Tenant's property left at the Premises (although Landlord shall have no
obligation to remove, transport, or store any such property);
(v) Expenses of reletting the Premises, including without
limitation, brokerage commissions and attorneys' fees;
(vi) Attorneys' fees and court costs; and
(vii) Costs of carrying the Premises such as repairs,
maintenance, taxes and insurance premiums, utilities and security precautions
(if any).
The "worth at the time of award" of the amounts referred to in subsections
(a) and (b) of this Section 16.2.1 is computed by allowing interest at an annual
rate equal to the greater of: ten percent (10%); or five percent (5%) plus the
rate established by the Federal Reserve Bank of San Francisco, as of the
twenty-fifth (25th) day of the month immediately preceding the Default by
Tenant, on advances to member banks under Sections 13 and 13(a) of the Federal
Reserve Act, as now in effect or hereafter from time to time amended, not to
exceed the maximum rate allowable by law.
16.2.2 Continuance of Lease. Upon Default by Tenant and unless and
until Landlord elects to terminate this Lease pursuant to Section 16.2.1 above,
this Lease shall continue in
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effect after the Default by Tenant and Landlord may enforce all rights and
remedies under this Lease, including without limitation, the right to recover
payment of Rentals as they become due. Neither efforts by Landlord to mitigate
damages caused by a Default by Tenant nor the acceptance of any Rentals shall
constitute a waiver by Landlord of any of Landlord's rights or remedies,
including the rights and remedies specified in this Section 16.2.
16.2.3 Reletting Premises. Upon Default by Tenant, Landlord may, at
Landlord's election, re-enter the Premises, and without terminating this Lease,
and at any time and from time to time, relet the Premises or any part or parts
thereof for the account and in the name of Tenant or otherwise. Landlord may, at
Landlord's election, eject Tenant or any of Tenant's subtenants, assignees or
other person claiming any right in or through this Lease. Tenant shall
nevertheless pay to Landlord on the due dates specified in this Lease all sums
required to be paid by Tenant under this Lease, plus Landlord's expenses, less
the proceeds of any sublease or reletting. The expenses allowed Landlord shall
include without limitation costs paid to retake possession of the Premises
(including attorneys' fees), costs to place the Premises in its original
condition, ordinary wear and Xxxx excepted, costs to secure new tenants
(including brokers' commissions and attorneys' fees) and costs to fulfill all of
Tenant's covenants and conditions hereunder to the end of the Lease Term. No act
by or on behalf of Landlord under this Section 16.2.3 shall constitute a lease
termination unless Landlord gives Tenant written notice of termination as
provided in Section 16.2.1 above. Notwithstanding any prior reletting without
termination, Landlord may later elect to terminate this Lease because of a
default by Tenant.
16.3 Attorneys' Fees. Tenant shall pay reasonable fees and costs of
attorneys engaged by Landlord in collection of Rentals or to enforce any of
Landlord's rights and remedies under this Article 16 and applicable law.
16.4 Landlord's Default, Landlord shall not be in default under this Lease
unless Tenant shall have given Landlord written notice of the breach and, within
thirty days after notice, Landlord has not cured the breach or, if the breach is
such that it cannot reasonably be cured under the circumstances within thirty
days, Landlord has not commenced diligently to prosecute the cure to completion.
In the event of any default on the part of Landlord under this Lease, Tenant
shall give notice by registered mail to any beneficiary or mortgagee of a deed
of trust or mortgage encumbering the Premises, Building and/or Property whose
address shall have been furnished to it, and shall offer such beneficiary or
mortgagee a reasonable opportunity to cure the default, including time to obtain
possession of the Premises by power of sale or judicial foreclosure, if such
should prove necessary to affect a cure.
ARTICLE 17
CONDEMNATION
17.1 Landlord's Right to Terminate. Landlord shall have the option to
terminate this Lease if, as a result of a taking by means of the exercise of the
power of eminent domain (including a voluntary sale or transfer by Landlord to a
condemnor under threat of condemnation) all or any material portion of the
Property and/or all or any material portion of the Building is so taken. Any
such option to terminate by Landlord shall be exercised within a reasonable time
period, to be effective as of the date possession is taken by the condemnor. For
purposes hereof, a "material portion" of the Property shall mean (a) any taking
of ten percent (10%) or more of the land area of the Property, (b) any taking
which results in the loss of ten percent (10%) or more of the then available
parking spaces on the Property, or (c) any taking of ten percent (10%) or more
of the rentable area of the Building.
17.2 Tenant's Right to Terminate. Tenant shall have the option to terminate
this Lease if, as the result of any taking by
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means of the exercise of the power of eminent domain (including any voluntary
sale or transfer by Landlord to a condemnor under threat of condemnation), (a)
all of the Premises is so taken; or (b) such portion of the Premises is taken
such that the remaining portion of the Premises cannot, in the reasonable
judgment of the Tenant, be utilized for the continuing operation of Tenant's
business therein. Tenant shall exercise such option within thirty (30) days of
notice of such taking. Such exercise by Tenant shall be effective on the date
that possession of the condemned portion of the Premises is taken by the
condemnor.
17.3 Temporary Taking. If any portion of the Premises is temporarily taken
for one (1) year or less, this Lease shall remain in effect. If any portion of
the Premises is temporarily taken by condemnation for a period which either
exceeds one (1) year or which extends beyond what would have been the expiration
of the Lease Term without such taking, then Landlord and Tenant shall each
independently have the option to terminate this Lease, effective on the date
possession is taken by the condemnor.
17.4 Restoration and Abatement of Rent. If any part of the Premises or the
Common Area is taken by condemnation and this Lease is not terminated as
provided above, then Landlord shall restore the Premises and Tenant Improvements
constructed by Landlord to an architecturally complete unit to the extent that
proceeds received by Landlord from the condemnation are sufficient therefor.
Thereafter, except in the case of a temporary taking, as of the date possession
is taken by the condemnor, the monthly Base Rent (but not any Additional Rent)
shall be reduced in the same proportion that the rentable area of that part of
the Premises so taken (less any addition thereto by reason of any
reconstruction) bears to the original rentable area of the Premises.
17.5 Division of Condemnation Award. Any award made for any condemnation of
the Property or Premises shall belong to and be paid to Landlord, and Tenant
hereby assigns to Landlord all of its right, title and interest in any such
award; provided, however, that Tenant shall be entitled to receive any
condemnation award that is made directly to Tenant (a) for the taking of
personal property or trade fixtures belonging to Tenant; (b) for the
interruption of Tenant's business or its moving costs; (c) for the loss of
Tenant's goodwill; or (d) for any temporary taking where this Lease is not
terminated as a result of such taking. The rights of Landlord and Tenant
regarding any condemnation shall be determined as provided in this Article, and
each party hereby waives the provisions of Section 1265.130 of the California
Code of Civil Procedure, and the provisions of any similar law hereinafter
enacted, allowing either party to petition the Superior Court to terminate this
Lease in the event of a partial taking of the Premises.
ARTICLE 18
SUBORDINATION TO MORTGAGES
18.1 Subordination. This Lease shall be subject and subordinate to the lien
of any mortgages or deeds of trust (including all advances thereunder, renewals,
replacements, modifications, supplements, consolidations and extensions thereof)
in any amount whatsoever now or hereinafter placed on or against or affecting
the Premises, the Building or the Property, or Landlord's interest or estate
therein (collectively "Mortgages") which subordination shall be effective
without the necessity of execution and delivery of any further instruments on
the part of Tenant. Any mortgagee under a Mortgage ("Mortgagee") shall have the
right to elect to have this Lease prior to their interest, whether this Lease is
dated prior or subsequent to the date, or the date of recordation, of such
Mortgage.
18.2 Subordination Agreements. Tenant shall execute and deliver, without
charge therefor, such further documents and instruments evidencing the
subordination of this Lease to any Mortgage as may be required by Landlord
within ten (10) days
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following Landlord's request therefor; provided that Tenant shall not be
required to execute a subordination to any Mortgage unless the Mortgagee
thereunder agrees in writing that this Lease shall not be terminated in the
event of any foreclosure if Tenant is not then in default under this Lease.
Failure of Tenant to execute instruments evidencing subordination of this Lease
to a Mortgage shall constitute a Default by Tenant hereunder.
18.3 Approval by Mortgagees. Tenant hereby acknowledges that the provisions
of this Lease may be subject to the approval of any financial institution that
may make a loan secured by a Mortgage. If the financial institution shall
require, as a condition of such financing, any modifications of this Lease in
order to protect its security interest in the Premises, including, without
limit, modifications of the provisions relating to the damage to and/or
destruction of the Premises, Tenant agrees to execute the appropriate
amendments; provided, however, that no modifications shall substantially change
the size, location or dimension of the Premises or increase the rentals payable
by Tenant hereunder. If Tenant refuses to execute any such amendment, Landlord
may, in Landlord's discretion, terminate this Lease.
18.4 Attornment. In the event of a foreclosure or the exercise of a power
of sale under any Mortgage, Tenant shall attorn to the purchaser upon any such
foreclosure or sale and recognize such purchaser as the Landlord under this
Lease, provided that such purchaser agrees to comply with the terms hereof.
ARTICLE 19
GENERAL PROVISIONS
19.1 Authority to Sign. If Tenant signs as a corporation or a partnership,
each of the persons executing this Lease on behalf of Tenant does hereby
covenant and warrant that Tenant is a duly authorized and existing entity, that
Tenant has and is qualified to do business in the State of California, that
Tenant has full right and authority to enter into this Lease and that each and
both of the persons signing on behalf of Tenant are authorized to do so. Upon
Landlord's request, Tenant shall provide evidence reasonably satisfactory to
Landlord confirming the foregoing covenants and warranties.
19.2 Intentionally Omitted.
19.3 Rules and Regulations. Tenant shall observe and comply with the rules
and regulations attached hereto as Exhibit "E." Landlord shall have the right
from time to time to promulgate amendments and additional rules and regulations
for the care and orderly management of the Building, and for the safety of its
tenants and invitees, provided that such amendments and additional rules and
regulations are reasonable and nondiscriminatory. Upon delivery of a copy of
such amendments and additional rules and regulations to Tenant, Tenant shall
comply with the rules and regulations. A violation by Tenant of any such rules
and regulations, including any amendments thereof, shall constitute a default by
Tenant under this Lease. If there is a conflict between the rules and
regulations and any of the provisions of this Lease, the provisions of this
Lease shall prevail. Landlord shall not be responsible to Tenant for the
nonperformance of any such rules and regulations by any other tenants or
occupants of the Building.
19.4 Holding Over. If Tenant remains in possession of the Premises or any
part thereof after the Termination Date with the express written consent of
Landlord, such occupancy shall be a tenancy from month to month at a Base Rent
in an amount equal to the one hundred fifty percent (150%) of the last monthly
Base Rent payable hereunder, plus Additional Rent and all other charges payable
hereunder, and upon all the terms hereof applicable to a month to month tenancy.
If Tenant remains in possession of the Premises after the Termination Date
without Landlord's consent, Tenant shall indemnify Landlord against any loss or
liability
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resulting from Tenant's failure to surrender the Premises, including, without
limitation, any claims made by any succeeding tenants based on delay in the
availability of the Premises.
19.5 Entry by Landlord. Landlord reserves and shall at any and all times
have the right, without abatement of Rentals, to enter the Premises inspect the
same, to submit said Premises to prospective purchasers or tenants, to post
notices of nonresponsibility, and to alter, improve or repair the Premises and
any portion of the Building of which the Premises are a part that Landlord may
deem necessary or desirable. Landlord may erect scaffolding and other necessary
structures where reasonably required by the character of the work to be
performed, always providing that the entrance to the Premises shall not be
blocked thereby. With respect to the foregoing, Landlord shall use its best
reasonable efforts to not unreasonably interfere with Tenant's business;
provided, however, Landlord shall not be liable to Tenant for any interference
with Tenant's use of the Premises. Tenant hereby waives any claim for damages
(excluding personal injury or property damage resulting from the negligent or
willful misconduct of Landlord) or for any injury or inconvenience to or
interference with Tenant's business, any loss of occupancy or quiet enjoyment of
the Premises and any other loss occasioned thereby. For each of the aforesaid
purposes, Landlord shall at all times have and retain a key with which to unlock
all of the doors in, upon and about the Premises, excluding Tenant's vaults,
safes and files, and Landlord shall have the right to use any and all means
which Landlord may deem proper to open said doors in an emergency, in order to
obtain entry to the Premises without liability to Tenant except for any failure
to exercise due care for Tenant's property. Any entry to the Premises obtained
by Landlord by any of said means, or otherwise, shall not under any
circumstances be construed or deemed to be a forcible or unlawful entry into, or
a detainer of, the Premises, or an eviction of Tenant from the Premises or any
portion thereof.
19.6 Non-Discrimination. Tenant hereby covenants by and for itself, its
heirs, executors, administrators and assigns, and all persons claiming under or
through it, and this Lease is made and accepted upon and subject to the
following conditions:
"That there shall be no discrimination against or
segregation of any person or group of persons on account of
race, color, creed, religion, sex, age, handicap, marital
status, ancestry or national origin in the leasing,
subleasing, transferring, use, occupancy, tenure or
enjoyment of the Premises herein leased, nor shall the
Tenant itself, or any person claiming under or through it,
establish or permit any such practice or practices of
discrimination or segregation with reference to the
selection, location, number, use or occupancy of Tenants,
lessee, subtenants, sublessees or vendees in the Premises
herein leased."
19.7 Estoppel Certificate. Tenant shall at any time and from time to time
upon not less than ten (10) days' prior written notice from Landlord execute,
acknowledge and deliver to Landlord a statement in writing (a) certifying that
this Lease is unmodified and in full force and effect (or, if modified, stating
the nature of such modification and certifying that this Lease as so modified,
is in full force and effect), and the date to which the Base Rent and other
charges are paid in advance, if any, and (b) acknowledging that there are not,
to Tenant's knowledge, any uncured defaults on the part of the Landlord
hereunder, or specifying such defaults if any are claimed. Any such statement
may be relied upon by any prospective purchaser or encumbrancer of all or any
portion of the Property of which the Premises are a part. Tenant's failure to
deliver such statement to Landlord within the time period herein
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specified shall be a material breach of this Lease.
19.8 Transfer of Landlord's Interest. In the event of a sale or conveyance
by the Landlord herein named (and in case of any subsequent transfers or
conveyances, the then grantor) of Landlord's interest in the Premises, Building
or Property other than a transfer for security purposes only, the Landlord
herein named (and in case of any subsequent transfers or conveyances, the then
grantor) shall be relieved, from and after the date of such transfer, of all
obligations and liabilities accruing thereafter on the part of Landlord.
Following such sale or conveyance by Landlord (or the then grantor), Tenant
agrees to look solely to the responsibility of the successor-in-interest of
Landlord in and to this Lease. This Lease shall not be affected by any such sale
or conveyance and Tenant agrees to attorn to the purchaser or assignee.
19.9 Interest. Any installment of Base Rent or any other sum due from
Tenant under this Lease which is received by Landlord after thirty (30) days
from when the same is due shall bear interest from said thirtieth (30th) day
until paid, at an annual rate equal to the greater of: (i) ten percent (10%); or
(ii) five percent (5%) plus the rate established by the Federal Reserve Bank of
San Francisco, as of the twenty-fifth (25th) day of the month immediately
preceding the due date, on advances to member banks under Sections 13 and 13(a)
of the Federal Reserve Act, as now in effect or hereafter from time to time
amended. Payment of such interest shall not excuse or cure any Default by
Tenant. In addition, Tenant shall pay all costs and attorneys' fees incurred by
Landlord in collection of such amounts.
19.10 Parking.
19.10.1 Parking Areas. The "parking areas" for the Building are
comprised of the On-Site Parking Facilities and the Off-Site Parking Facilities.
"On-Site Parking Facilities" shall mean and refer to the subterranean parking
facilities located below the Building, which facilities are owned and operated
by Landlord pursuant to its rights under the Ground Lease. "Off-Site Parking
Facilities" shall mean and refer to such parking facilities located not more
than four blocks from the Building, which facilities will be operated by
Landlord or Landlord's designee pursuant to an operation agreement with the
Agency.
19.10.2 Tenant's Rights. Subject to the parking rules and regulations
set forth in Exhibit "F" attached hereto, Tenant shall have the right to lease
up to the number of parking spaces within parking facilities for the Building
specified in Section 1.12 above ("Tenant's Allowed Parking Spaces") on a
nonexclusive basis. Tenant shall, prior to the Commencement Date, notify
Landlord of the actual number of Tenant's Allowed Parking Spaces it intends to
lease. Thereafter, Tenant may reduce or increase the number of Tenant's Allowed
Parking Spaces actually leased by providing Landlord written notice thereof,
which reduction or increase shall become effective in the calendar month
immediately following such notice.
19.10.3 Parking Fees. Tenant shall, on a monthly basis, pay to
Landlord, for the number of Tenant's Allowed Parking Spaces actually leased by
Tenant pursuant to Section 19.10.2 above, the currently scheduled parking fees
for the parking areas for the Building which are in effect from time to time. As
of the date of execution of this Lease, the fees for unreserved parking spaces
located in the On-Site Parking Facilities is equal to Seventy-five Dollars ($75)
per space and for parking spaces located in the Off-Site Parking Facilities,
Fifty-five Dollars ($55) per space. The parking fees to be paid by Tenant for
Tenant's Allowed Parking Spaces shall be determined by Landlord and may be
adjusted by Landlord at any time during the Lease Term to conform to changes in
applicable market rates as reasonably determined by Landlord, from time to time.
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19.10.4 Landlord's Right to Relocate Parking. Landlord reserves the
right to relocate the Off-Site Parking Facilities during the term of the Lease
in order to accommodate the course of construction of additional phases of the
Silicon Valley Financial Center. Landlord shall also have the right to
temporarily or permanently relocate and redesignate Tenant's spaces in the
On-site Parking Facilities to other areas located in the On-Site Parking
Facilities in order to provide parking facilities for all tenants of the
Building.
19.11 Limitation on Landlord's Liability. Tenant, for itself and its
successors and assigns, hereby agrees that in the event of any actual, or
alleged, breach or default by Landlord under this Lease that:
(a) Tenant's sole and exclusive remedy against Landlord shall be as
against Landlord's interest in the Building;
(b) No partner of Landlord shall be sued or named as a party in a suit
or action (except as may be necessary to secure jurisdiction of the
partnership);
(c) No service of process shall be made against any partner of
Landlord (except as may be necessary to secure jurisdiction of the partnership);
(d) No partner of Landlord shall be required to answer or otherwise
plead to any service of process;
(e) No judgment will be taken against any partner of Landlord;
(f) Any judgment taken against any partner of Landlord may be vacated
and set aside at any time nunc pro tunc;
(g) No writ of execution will ever be levied against the assets of any
partner of Landlord;
(h) The covenants and agreements of Tenant set forth in this Section
19.11 shall be enforceable by Landlord and any partner of Landlord.
19.12 Waiver. The waiver by Landlord of any terms, covenant or condition
herein contained shall not be deemed to be a waiver of such term, covenant or
condition on any subsequent breach of the same or any other term, covenant or
condition herein contained. The subsequent acceptance of Rentals hereunder by
Landlord shall not be deemed to be a waiver of any preceding breach by Tenant
of any term, covenant or condition of this Lease, other than the failure of the
Tenant to pay the particular Rentals so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such Rentals.
19.13 Notices. All notices and demands which may or are to be required or
permitted to be given by either party to the other hereunder shall be in writing
and shall be served by personal service or mailing. All notices and demands
which are mailed shall be sent by United States first class mail (registered or
certified, return receipt requested), addressed to the addresses set forth in
Article I hereof, if sent prior to Tenant's taking possession of the Premises,
or at the Premises if sent subsequent to Tenant's taking possession of the
Premises, or at any place where Tenant or any agent, employee, or officer can be
found, if sent subsequent to Tenant's vacating, deserting, abandoning or
surrendering the Premises or to such other place as either party may designate
to each other in accordance with the provisions of this Article 19.13. Any
notice given pursuant to this Section 19.11 shall be deemed served when
delivered by personal service, or as of seventy-two (72) hours after the deposit
thereof in the United States mail.
19.14 Joint and Several Obligation. If there be more than one (1) person
executing this Lease as "Tenant" or as a general
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partner of Tenant, then each such person shall be jointly and severally liable
for each and every duty and obligation arising on the part of "Tenant" under
this Lease. In addition to Landlord's other rights and remedies as set forth
herein and as provided by law, Landlord shall have the right in the event of a
breach or Default by Tenant under this Lease, to proceed against any one or all
of the persons executing this Lease as Tenant.
19.15 Headings. The headings and titles to the Articles, Sections and
Subsections of this Lease are not part of this Lease and shall have no effect
upon the construction or interpretation of any part hereof.
19.16 Time. Time is of the essence of this Lease and each and all of its
provisions in which performance is a factor.
19.17 Successors and Assigns. The covenants and conditions herein
contained, subject to the provisions as to assignment, apply to and bind the
heirs, successors, executors, administrators and assigns of the parties hereto.
19.18 Recordation. Neither Landlord nor Tenant shall record this Lease or a
short form memorandum hereof without the prior written consent of the other
party.
19.19 Quiet Possession. Upon Tenant paying the Rentals required hereunder
and observing and performing all of the covenants, conditions and provisions on
Tenant's part to be observed and performed hereunder, Tenant shall have quiet
possession of the Premises for the entire term hereof, subject to all the
provisions of this Lease.
19.20 Prior Agreements. This Lease contains all of the agreements of the
parties hereto with respect to any matter covered or mentioned in this Lease,
and no prior agreements or understandings, written or oral, pertaining to any
such matters shall be effective for any purpose. No provision of this Lease may
be amended or added to except by an agreement in writing signed by the parties
hereto or their respective successors in interest. This Lease shall not be
effective or binding upon any party until fully executed by both parties hereto.
19.21 Inability to Perform. This Lease and the obligations of the Tenant
hereunder shall not be affected or impaired because the 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 strike, labor troubles, acts of God,
or any other cause beyond the reasonable control of the Landlord.
19.22 Attorneys' fees. In the event of any action or proceeding brought by
either party against the other under this Lease the prevailing party shall be
entitled to recover all costs and expenses including the fees of its attorneys
in such action or proceeding in such amount as the Court may adjudge reasonable
as attorneys' fees.
19.23 Severability. Any provision of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other
provision hereof and such other provisions shall remain in full force and
effect.
19.24 Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
19.25 Choice of Law. This Lease shall be governed by the laws of the State
of California.
19.26 Brokers. Tenant warrants that it has had no dealings with any real
estate brokers or agents in connection with the negotiation of this Lease to
whom a commission or finder's fee is payable.
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19.27 Exhibits. All Exhibits, Amendments, or Addendum attached hereto, and
all terms and conditions contained therein, are incorporated into, and shall
become part of, this Lease.
The parties hereto have executed this Lease on the dates specified
immediately adjacent to their respective signatures.
LANDLORD:
50 WEST SAN XXXXXXXX ASSOCIATES,
a California limited partnership
By: SFG SAN XXXX COMPANY, LLC, an
Indiana limited liability
company
By: XXXXXX XXXXX & ASSOCIATES,
INC.
its Manager
Dated:____________________________ By:____________________________
Name:_____________________
Title :___________________
TENANT:
AboveNet, a California corporation
Dated:____________________________ /s/ XXXXXXX XXXX
------------------------------------
By: Xxxxxxx Xxxx, president
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EXHIBIT "A"
FLOOR PLAN OF PREMISES
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EXHIBIT "B"
[Intentionally Omitted)
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EXHIBIT "C"
[Intentionally Omitted]
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EXHIBIT "D"
STANDARDS FOR UTILITIES AND SERVICES
The following Standards for Utilities and Services are in effect. Landlord
reserves the right to adopt nondiscriminatory modifications and additions
hereto:
As long as Tenant is not in default under any of the terms, covenants,
conditions, provisions or agreements of this Lease, Landlord shall:
(a) Provide nonattended automatic elevator facilities Monday through
Friday, except holidays, from 7;30 a.m. to 6:00 p.m. and Saturdays from 7:30
a.m. to Noon, and have one elevator available at all other times. Should
Landlord determine that additional security is required in order to monitor
Tenant's usage of the freight or passenger elevators, Tenant shall reimburse
Landlord (determined as additional rent) for the costs of such additional
services.
(b) on Monday through Friday, except holidays, from 8:00 a.m. to 8:00 p.m.,
Saturdays from 9:00 a.m. to 1:00 p.m. (and at other times for a reasonable
hourly additional charge to be fixed by Landlord), ventilate the Premises and
furnish air conditioning or heating on such days and hours, when in the judgment
of Landlord it may be required for the comfortable occupancy of the Premises.
The aforesaid hours shall, for the purposes of Section 13.2, comprise the
"regular building hours". The air conditioning system achieves maximum cooling
when the window coverings are closed. Landlord shall not be responsible for room
temperatures if Tenant does not keep all window coverings in the Premises closed
whenever the system is in operation. Tenant agrees to cooperate fully at all
times with Landlord and to abide by all regulations and requirements which
Landlord may prescribe for the proper function and protection of said air
conditioning system. Tenant agrees not to connect any apparatus, device conduit
or pipe to the Building chilled and hot water air conditioning supply lines.
Tenant further agrees that neither Tenant nor its servants, employees, agents,
visitors, licensees or contractors shall at any time enter the mechanical
installations or facilities of the Building or adjust, tamper with, touch or
otherwise in any manner affect said installations or facilities. The cost of
maintenance and service calls to adjust and regulate the air conditioning system
shall be charged to Tenant if the need for maintenance work results from either
Tenant's adjustment of room thermostats or Tenant's failure to comply with its
obligations under this section, including keeping window coverings closed as
needed. Such work shall be charged at hourly rates equal to then-current
journeymen's wages for air conditioning mechanics.
(c) Furnish to the Premises, on Monday through Friday, except holidays,
from 8:00 a.m. to 8:00 p.m., Saturdays from 9:00 a.m. to 1:00 p.m. electric
current as required by the Building standard office lighting and fractional
horsepower office business machines in an amount not to exceed .025 KWH per
square foot per normal business day. Tenant agrees, should its electrical
installation or electrical consumption be in excess of the aforesaid quantity or
extend beyond normal business hours, shall be reimbursed by Tenant to Landlord
as Excess Utility Charges and/or After-Hour Charges pursuant to Section 13.2 of
the Lease. Tenant agrees not to use any apparatus or device in, or upon, or
about the Premises which may in any way increase the amount of such services
usually furnished or supplied to said Premises, and Tenant further agrees not to
connect any apparatus or device with wires, conduits or pipes, or other means by
which such services are supplied, for the purpose of using additional or unusual
amounts of such services without written consent of Landlord. Should Tenant use
the same to excess, the refusal on the part of Tenant to pay upon demand of
Landlord the amount established by Landlord for such excess charge shall
constitute a breach of the obligation to pay rent under this
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Lease and shall entitle Landlord to the rights therein granted for such breach.
At all times Tenant's use of electric current shall never exceed the capacity of
the feeders to the Building or the risers or wiring installation.
(d) Water will be available in public areas for drinking and lavatory
purposes.
(e) Tenant shall provide it own janitor service to the Premises, provided
that any company retained by Tenant shall be subject to Landlord's approval and
any rules and regulations established by Landlord (from time to time) . Tenant
shall assure that the Premises are to be kept clean. Tenant shall pay to
Landlord the cost of removal of any of Tenant's refuse and rubbish, to the
extent that the same exceeds the refuse and rubbish usually attendant upon the
use of the Premises as offices.
Subject to the provision of Section 13.1 and 19.5, Landlord reserves the
right to stop service of the elevator, plumbing, ventilation, air conditioning
and electric systems, when necessary, by reason of accident or emergency or for
repairs, alterations or improvements, in the judgment of Landlord desirable or
necessary to be made, until said repairs, alterations or improvements shall have
been completed, and shall further have no responsibility or liability for
failure to supply elevator facilities, plumbing, ventilating, air conditioning
or electric service, when prevented from so doing by strike or accident or by
any cause beyond Landlord's reasonable control, or by laws, rules, orders,
ordinances, directions, regulations or requirements of any federal, state,
county or municipal authority or failure of gas, oil or other suitable fuel
supply or inability by exercise of reasonable diligence to obtain gas, oil or
other suitable fuel.
Tenant shall comply with all rules, regulations and requirements
promulgated by national, state or local governmental agencies or utility
suppliers concerning the use of utility services including any rationing,
limitation or other control on the quantity of utilities consumed.
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EXHIBIT "E"
RULES AND REGULATIONS
1. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, hangings or decorations shall be attached to, hung or placed in, or
used in connection with any window or glass door on the Premises without the
prior written consent of Landlord. In any event, with the prior written consent
of Landlord, said above items shall be installed inboard of Landlord's standard
window covering and shall in no way be visible from the exterior of the
Building. No articles shall be placed or kept on the window xxxxx so as to be
visible from the exterior of the Building.
2. Tenant shall not obstruct any sidewalks, halls, passages, exits,
entrances, elevators, escalators, or stairways of the Building. The halls,
passages, exists, entrances, elevators, escalators and stairways are not open to
the general public, but are open, subject to reasonable regulation, to Tenant's
business invitees. Landlord shall in all cases retain the right to control and
prevent access thereto of all persons whose presence in the judgment of Landlord
would be prejudicial to the safety, character, reputation and interest of the
Building and its tenants; provided that nothing herein contained shall be
construed to prevent such access to persons with whom any tenant normally deals
in the ordinary course of its business, unless such persons are engaged in
illegal or unlawful activities. No tenant and no employee or invitee of any
tenant shall go upon the roof of the Building.
3. The directory of the Building will be provided exclusively for the
display of the name and location of tenants only, and Landlord reserves the
right to exclude and limit any other names therefrom.
4. All cleaning and janitorial services for the Building and the Premises
shall be provided exclusively through Landlord, and except with the written
consent of Landlord, no person or persons other than those approved by Landlord
shall be employed by Tenant or permitted to enter the Building for the purpose
of cleaning the same. Tenant shall not cause any unnecessary labor by
carelessness or indifference to the good order and cleanliness of the Premises.
Landlord shall in no event be responsible to Tenant for any loss of property on
the Premises, however occurring, or for any damage done to the effects of Tenant
by the janitor or other employee or any other person. Janitor service will not
be furnished on nights when rooms are occupied after 9:00 p.m. Window cleaning
shall be done only at regular and customary times determined by Landlord for
such services.
5. Landlord will furnish Tenant, free of charge, with two keys to each
corridor door lock in the Premises. Landlord may make a reasonable charge for
any additional keys. Tenant shall not make or have made additional keys, and
Tenant shall not alter any lock or install new additional lock or bolt on any
door of its Premises. Tenant, upon the termination of its tenancy, shall deliver
to Landlord the keys of all doors which have been furnished to Tenant, and in
the event of loss of any keys so furnished, shall pay Landlord therefor.
6. No boring or cutting for telephone, telegraph, burglar alarms, electric
wires or similar services shall be allowed without the consent of Landlord and
any such wires permitted shall be introduced at the place and in the manner
described by Landlord. The location of telephones, speakers, fire extinguishers
and all other office equipment affixed to premises occupied by tenants shall be
subject to the written approval of Landlord. Each tenant shall pay all expenses
incurred in connection with the installation of its equipment, including any
telephone, telegraph and electricity distribution equipment.
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7. The Building freight elevator(s) shall be available for use by all
tenants in the Building, subject to such reasonable scheduling as Landlord, in
its discretion, shall deem appropriate. No equipment, materials, furniture,
packages, supplies, merchandise or other property will be received in the
Building or carried in the elevators except between such hours and in such
elevators as may be designated by Landlord. Tenant's initial move in and
subsequent deliveries of bulky items, such as furniture, safes and similar items
shall, unless otherwise agreed in writing by Landlord, be made during the hours
of 6:00 p.m. to 6:00 a.m. or on Saturday or Sunday. Deliveries during normal
office hours shall be limited to normal office supplies and other small items.
No deliveries shall be made which impede or interfere with other tenants or the
operation of the Building. Landlord reserves the right to refuse the
transporting of any materials in the elevators which may be of a hazardous or
bulky nature, or be beyond the loading capacity or operational capacity of the
elevators. Tenant shall be liable for any and all repairs to the elevators due
to the improper use or misuse of the elevators by Tenant, its agents, employees
or invitees.
8. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. Landlord shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the Building. Heavy objects shall, if considered necessary by
Landlord, stand on such platforms as determined by Landlord to be necessary to
properly distribute the weight, which platforms shall be provided at Tenant's
expense. Business machines and mechanical equipment belonging to Tenant, which
cause noise or vibration that may be transmitted to the structure of the
Building or to any space therein to such a degree as to be objectionable to
Landlord or to any tenants in the Building, shall be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The persons employed to move such
equipment in or out of the Building must be acceptable to Landlord. Landlord
will not be responsible for loss of, or damage to, any such equipment or other
property from any cause, and all damage done to the Building by maintaining or
moving such equipment or other property shall be repaired at the expense of
Tenant.
9. Tenant shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited quantities
necessary for the operation or maintenance of office equipment. Tenant shall not
use or permit to be used in the Premises any foul or noxious gas or substance,-
or permit or allow the Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by reason of noise,
odors or vibrations, nor shall Tenant bring into or keep in or about the
Premises any birds or animals.
10. Tenant shall not use any method of heating or air conditioning other
than that supplied by Landlord.
11. Tenant shall not waste electricity, water or air-conditioning and
agrees to cooperate fully with Landlord to assure the most effective operation
of the Buildings heating and air conditioning and to comply with any
governmental energy-saving rules, laws or regulations of which Tenant has actual
notice, and shall refrain from attempting to adjust controls. Tenant shall keep
corridor doors closed, and shall close window coverings at the end of each
business day.
12. Landlord reserves the right to exclude from the Building between the
hours of 6 p.m. and 7 a.m. the following day, or such other hours as may be
established from time to time by Landlord, and on Saturdays, Sundays and legal
holidays, any person unless that person is known to the person or employee in
charge of the Building and has a pass or is properly identified. Tenant shall be
responsible for all persons for whom it requests passes and shall
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be liable to Landlord for all acts of such persons. Landlord shall not be liable
for damages for any error with regard to the admission to or exclusion from the
Building of any person. Landlord reserves the right to prevent access to the
Building in case of invasion, mob, riot, public excitement or other commotion by
closing the doors or by other appropriate action.
13. Tenant shall close and lock the doors of its Premises and entirely shut
off all water faucets or other water apparatus, and electricity, gas or air
outlets before tenant and its employees leave the Premises. Tenant shall be
responsible for any damage or injuries sustained by other tenants or occupants
of the Building or by Landlord for noncompliance with this rule.
14. Tenant shall not obtain for use on the Premises ice, drinking water,
food, beverage, towel or other similar services or accept barbering or
bootblacking service upon the Premises, except at such hours and under such
regulations as may be fixed by Landlord. No cooking shall be done or permitted
on the Premises except for that used by Tenant of U.L. approved equipment for
the brewing of coffee, tea and other similar beverages.
15. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees or
invitees, shall have caused it.
16. Tenant shall not sell, or permit the sale at retail of newspapers
magazines, periodicals, theater tickets or any other goods or merchandise to the
general public in or on the Premises. Tenant shall not make any room-to-room
solicitation of business from other tenants in the Building. Tenant shall not
use the Premises for any business or activity other than that specifically
provided for in Tenant's Lease.
17. Tenant shall not install any radio or television antenna, loudspeaker
or other devices on the roof or exterior walls of the Building. Tenant shall not
interfere with radio or television broadcasting or reception from or in the
Building or elsewhere. Tenant shall not install any burglar alarm, security
system, or other similar protection device without the prior written approval
of Landlord.
18. Tenant shall not xxxx, drive nails, screw or drill into the partitions,
woodwork or plaster or in any way deface the Premises or any part thereof,
except in accordance with the provisions of the Lease pertaining to alterations.
Landlord reserves the right to direct electricians as to where and how telephone
and telegraph wires are to be introduced to the Premises. Tenant shall not cut
or bore holes or wires. Tenant shall not affix any floor covering to the floor
of the Premises in any manner except as approved by Landlord. Tenant shall
repair any damage resulting from noncompliance with this rule.
19. Tenant shall not install, maintain or operate upon the Premises any
vending machines without the written consent of Landlord.
20. Canvassing, soliciting and distribution of handbills or any other
written material, and peddling in the Building are prohibited, and Tenant shall
cooperate to prevent such activities.
21. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the influence of
liquor or drugs or who is in violation of any of the Rules and Regulations of
the Building.
22. Tenant shall store all its trash and garbage within its Premises or in
other facilities provided by Landlord. Tenant shall
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not place in any, trash box or receptacle any material which cannot be disposed
of in the ordinary and customary manner of trash and garbage disposal. Tenant
shall be charged accordingly for any costs incurred in the removal of rubbish or
debris not commonly incurred in normal business activity. All garbage and refuse
disposal shall be made in accordance with directions issued from time to time by
Landlord.
23. The Premises shall not be used for the storage of merchandise held for
sale to the general public, or for lodging or for manufacturing of any kind, nor
shall the Premises be used for any improper, immoral or objectionable purpose.
No cooking shall be done or permitted on the Premises without Landlord's
consent, except that use by Tenant of Underwriters' Laboratory approved
equipment for brewing coffee, tea, hot chocolate and similar beverages or use of
microwave ovens for employee use shall be permitted, provided that such
equipment and use is in accordance with all applicable federal, state, county
and city laws, codes, ordinances, rules and regulations.
24. Tenant shall not use in any space or in the public halls of the
Building any hand truck except those equipped with rubber tires and side guards
or such other material-handling equipment as Landlord may approve. Tenant shall
not bring any other vehicles of any kind into the Building.
25. Without the written consent of Landlord, Tenant shall not use the name
of the Building in connection with or in promoting or advertising the business
of Tenant except as Tenant's address.
26. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
27. Tenant assumes any and all responsibility for protecting its Premises
from theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
28. Tenant's requirements will be attended to only upon appropriate
application to the Building management office by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of their
regular duties unless under special instructions from Landlord, and no employee
of Landlord will admit any person (Tenant or otherwise) to any office without
specific instructions from Landlord.
29. Landlord may waive any one or more of these Rules and Regulations for
the benefit of Tenant or any other tenant, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations in favor of Tenant or any
other tenant, nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all of the tenants of the Building.
30. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of Tenant's Lease of its Premises in the
Building.
31. Landlord reserves the right to make such other and reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for safety and
security, for care and cleanliness of the Building and for the preservation of
good order therein. Tenant agrees to abide by all such Rules and Regulations
hereinabove stated and any additional rules and regulations which are adopted.
32. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and guests.
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33. Tenant shall cooperate with Landlord in complying with all resolutions
and requirements established by governmental agencies relative to transportation
and transit conditions established for the Building and shall designate a
responsible employee to represent Tenant in all matters pertaining to
transportation.
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EXHIBIT "F"
PARKING RULES AND REGULATIONS
The following rules and regulations shall govern use of the parking areas
and facilities for the Building (the "Parking Areas"):
1. Tenant, shall not park or permit the parking of any vehicle under its
control in any areas designated by Landlord as parking areas for visitors to the
Building. Tenant shall not park any vehicles in the Parking Areas other than
automobiles, motorcycles, motor driven or nonmotor driven bicycles or
four-wheeled trucks.
2. Parking stickers or any other device or form of identification supplied
by Landlord as a condition of use of the Parking Areas shall remain the property
of Landlord. Such parking identification device must be displayed as requested
and may not be mutilated in any manner. The serial number of the parking
identification device may not be obliterated. Devices are not transferable and
any device in the possession of an unauthorized holder will be void.
3. No overnight or extended term storage of vehicles shall be permitted.
4. Vehicles must be parked entirely within the painted stall lines of a
single parking stall.
5. All directional signs and arrows must be observed.
6. The speed limit within all parking areas shall be 5 miles per hour.
7. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
(c) where "no parking" signs are posted;
(d) on ramps;
(e) in cross hatched areas; and
(f) in such other areas as may be designated by Landlord or Landlord's
Parking Operator.
8. Every xxxxxx is required to park and lock his own vehicle. All
responsibility for damage to vehicles is assumed by the xxxxxx.
9. Loss or theft of parking identification devices from automobiles must be
reported immediately, and a lost or stolen report must be filed by the customer
at that time. Landlord has the right to exclude any car from the Parking Areas
that does not have an identification device. Any parking identification devices
reported lost or stolen found on any unauthorized car will be confiscated and
the illegal holder will be subject to prosecution. Lost or stolen devices found
by the purchaser must be reported immediately to avoid confusion.
10. Washing, waxing, cleaning or servicing of any vehicle in any area not
specifically reserved for such purpose is prohibited.
11. Landlord reserves the right to refuse the sale of monthly stickers or
other parking identification devices to any tenant or person and/or his agents
or representatives who willfully refuse to comply with these Parking Rules and
Regulations and all
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unposted City, State or Federal ordinances, laws or agreements.
12. Landlord reserves the right to modify and/or adopt such other
reasonable and nondiscriminatory rules and regulations for the parking
facilities as it deems necessary for the operation of the parking facilities.
Landlord may refuse to permit any person who violates these rules to park in the
parking facilities, and any violation of the rules shall subject the car to
removal.
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