Exhibit 10.6.1
OFFICE LEASE
PARTIES
1. THIS LEASE, dated for reference purposes only, June 24, 1994, is made
by and between MENLO STATION DEVELOPMENT, a general partnership (herein
"Landlord") and BEINCORPORATED (herein "Tenant").
PREMISES
2. Landlord leases to Tenant and Tenant hires from Landlord for the term,
at the rental and upon the conditions in this Office Lease (herein "Lease") the
space consisting of the entire third floor of approximately Ten Thousand Six
Hundred Seventy Five (10,675) square feet (herein "Premises") of the building
commonly known as 800 E1 Camino Real, Menlo Park, San Mateo County, California
and located substantially as shown on Exhibit A attached hereto, reserving and
excepting to Landlord the use of the roof, exterior walls, stairways, elevators,
utility closets, bathrooms, and other common areas and area beneath and above
the Premises together with the right from time to time to install, maintain,
use, repair and replace pipes, ducts, conduits and wires leading through the
Premises in locations which will not materially interfere with Tenant's use
thereof and which serve other parts of the building and/or other tenants
therein.
Except for the painting of the interior of the Premises by Landlord, at
Landlord's sole cost and expense, it is understood and agreed that the Premises
are being leased "AS-IS" Any additional tenant improvements including, but not
limited to, all heating ventilating, and air conditioning distribution within
the Premises, all electrical systems within the Premises, suspended ceilings,
interior walls and partitions, and floor, window and wall coverings shall be
done by Tenant at Tenant's sole cost and expense. No such work shall be
commenced without Landlord's written consent as set forth herein. Landlord
shall clean the carpets in the Premises prior to occupancy.
it is understood and agreed that the Ten Thousand Six Hundred Seventy Five
(10,675) square feet area set forth above shall be used for all rent calculation
purposes, and that neither party shall have a claim against the other for any
non material variance of that figure.
TERM
3. (a) The term of the Lease shall be a period of twenty four (24)
months, commencing upon the date of commencement set forth in paragraph 3(b)
hereof, expiring (unless sooner terminated) at midnight on the last day of the
twenty fourth (24th) full calendar month thereafter, herein called the "lease
term" or "term".
(b) The term of this Lease shall commence on August 1, 1994.
Tenant shall give Landlord ten (10) days prior written notice of
Tenant's intention to take possession of the Premises and Tenant shall deliver
to Landlord the insurance certificates required by Paragraph 18 hereof prior to
taking possession of the Premises. Tenant shall, prior to opening the Premises
for business, provide to Landlord a copy of its business license issued by the
City of Menlo Park.
(c) Notwithstanding said commencement date, if for any reason
Landlord cannot deliver possession of the Premises to Tenant on said date,
Landlord shall not be subject to any liability therefor, nor shall such failure
affect the validity of this Lease or the obligations of Tenant hereunder or
extend the term hereof, but in such case Tenant shall not be obligated to pay
rent until possession is tendered to Tenant; provided however, that if Landlord
shall not have delivered possession of the Premises by September 1, 1994, Tenant
may, at Tenant's option, by written notice to Landlord within ten (10) days
thereafter, cancel this Lease, in which event the parties shall be discharged
from all obligations hereunder.
(d) Landlord shall permit Tenant to occupy the Premises or a portion
thereof commencing July 1, 1994 for the purpose of installing Tenant's
improvements, fixtures, furniture and equipment and such occupancy shall be
subject to all the provisions of this Lease. Landlord shall also permit Tenant
to use and occupy the Premises for the purposes described herein on or after
July 15, 1994 so long as Tenant pays the prorata share of the Direct Expenses
described in
1.
Paragraph 6(b) below. Said early possession shall not advance the commencement
or termination dates set forth above.
RENEWAL
4. (a) In the event Tenant shall not then be in default hereunder and
shall have made all previous rental payments in a timely manner (no more than
one payment in each calendar year being delinquent), Tenant shall have the
right, not earlier than eight (8) months prior to the date of the expiration of
the term of this Lease and not later than five (5) months prior to the date of
the expiration of the term of this Lease, to renew the term of this Lease for a
further term of twelve (12) months from the date of expiration of the term of
this Lease.
(b) Such election shall be made by Tenant by serving upon Landlord a
notice in writing to the effect that Tenant elects to renew and extend the term
of this Lease for such extended term.
(c) In the event Tenant shall elect to renew this Lease and shall
serve notice of such election, and upon the expiration of the term of this
Lease, a memorandum of such renewal shall be executed between the parties,
whereby Landlord shall let unto Tenant, and the Tenant shall hire from Landlord,
the Premises for the term of twelve (12) months from the date of expiration of
the term of this Lease.
(d) The base rental for the Premises during the extended term shall
be $18,681.00 per month. All other terms and conditions of the original lease
agreement shall apply to the extended term.
HOLDOVER
5. (a) Holding over after the expiration of the term or extended term,
of this Lease, or any oral extension thereof, with the consent of Landlord shall
be a tenancy from month to month at the rental rate payable during the last
month of the stated term hereof. All other provisions of this Lease except any
relating to the term and any option to extend or expand shall be applicable to
the month to month tenancy.
(b) If Tenant remains in possession without Landlord's consent after
a valid termination of the Lease in accordance with the provisions of this
lease, by lapse of time or otherwise, Tenant shall pay Landlord for each day of
such retention one-fifteenth (1/15th) of the amount of the monthly rental for
the last month prior to such termination and Tenant shall also pay all costs,
expenses and damages sustained by Landlord by reason of such retention,
including, without limitation, claims made by a succeeding tenant resulting from
Tenant's failure to surrender the Premises.
RENT
6. (a) During the initial term hereof, Tenant agrees to pay to Landlord
as minimum base rent for the Premises the following sums:
Months Monthly Base Rent
------ -----------------
1 - 12 $ 12,250.00 ($1.15/sq.ft. NNN)
13 - 24 $ 18,681.00 ($1.75/sq.ft. NNN)
Rent for the first month of this Lease in the amount of Twelve Thousand Two
Hundred Fifty Dollars ($12,250.00) shall be paid on execution of this Lease and
delivered to Landlord together with the security deposit referred to in
Paragraph 9(a). Said rental shall be paid, without prior notice or demand and
without deduction or offset, in lawful money of the United States of America at
000 X0 Xxxxxx Xxxx, Xxxxx 000, Xxxxx Xxxx, Xxxxxxxxxx 00000 or at such other
place as Landlord may from time to time designate in writing.
(b) As additional rent Tenant shall pay to Landlord a proportionate
share (as defined below) of direct expenses incurred by Landlord in the
administration, operation and maintenance of the building of which Premises are
a part (herein "Direct Expenses"). Tenant's proportionate share shall be the
same percentage of Direct Expenses as the total number of leasable square feet
in the Premises bears to the total number of leasable square feet in the
building of which the Premises are a part. It is agreed that Tenant's
proportionate share is 26.69% of the total. Landlord reserves the right to
reallocate Direct Expenses equitably among the tenants to take into
consideration vacancies, excessive usage by one or more tenant, and
2.
direct payment by a tenant for a maintenance item as set forth below. In no
event, however, shall real property taxes, casualty insurance and similar fixed
costs items attributable to vacant space be allocated to any tenant.
Direct Expenses shall include, without limitation, real property taxes
and assessments (general and special), in lieu real property taxes, rent taxes,
gross receipt taxes (whether assessed against the Landlord or assessed against
the Tenant and collected by Landlord, or both, water and sewer charges,
insurance (including earthquake and rental loss) premiums, utilities, janitorial
services, trash removal, labor, costs incurred in the management of the building
including salaries and employer taxes thereon, air conditioning and heating
operation and maintenance, elevator maintenance, supplies, materials, equipment
and tools, including maintenance, cost and upkeep of all parking and common
areas and the landscaping therein. Direct Expenses shall not include
depreciation on the building, capital improvements or replacements, loan
payments or real estate broker's commissions. Landlord agrees to use its best
efforts to secure all services, materials and supplies at competitive prices
commensurate with level of maintenance and service provided similar buildings in
the area. It is further agreed that management of the building shall include,
but not be limited to, rent collection, preparation and review of operating
budgets, supervision of maintenance employees, and negotiation of maintenance
and supply contracts. The costs of management shall be charged on an hourly
basis and not on a percentage of rental revenue basis.
Landlord estimates that Direct Expenses during the remainder of the
first calendar year of the Lease term hereunder will be Six Thousand Seven
Hundred Twenty Five and 25/100 Dollars ($6,725.25) per month. Accordingly,
during the remainder of 1994, Tenant shall pay to Landlord Six Thousand Seven
Hundred Twenty Five and 25/100 Dollars ($6,725.25) per month on account of
Tenant's additional rent attributable to Direct Expenses. It is agreed that
should Landlord's estimates of Direct Expenses set forth above change between
the date this Lease is executed and the date the term of this Lease commences,
that Landlord shall have the right to alter said estimate by giving written
notice to Tenant no later than ten (10) days after Landlord receives Tenant's
certificate required by Paragraph 3(b) above. Said estimates shall also be
adjusted should Tenant contract directly for any items of maintenance or
supplies included in the estimates for Direct Expenses. Landlord, however,
shall have the right to approve the contract to insure that the maintenance
schedule proposed and the contractor are acceptable. Landlord shall not
unreasonably withhold its consent.
On or before December 1st of each year, Landlord shall estimate the
projected Direct Expenses (per month) for the following calendar year and notify
the Tenant thereof. Commencing January 1 of the following calendar year and
monthly thereafter for the remainder of the year, Tenant shall pay to Landlord
its projected proportionate share of the Direct Expenses.
Annually, on the first day of March of each calendar year (or as soon
thereafter as Landlord can reasonably make the determination), Landlord shall
determine and provide Tenant with an itemized statement of the actual amount of
Direct Expenses incurred by Landlord during the twelve month period ending on
December 31st of the previous year. If Tenant's cumulative total of monthly
payments on account of Direct Expenses is less than Tenant's proportionate share
of the actual Direct Expenses during the particular twelve month period, Tenant
shall pay the difference to Landlord within thirty (30) days after the date of
Landlord's statement. If Tenant's proportionate share of actual Direct Expenses
is less than the cumulative total of Tenant's monthly payments on account of
Direct Expenses during any such twelve month period, the difference shall be
credited against amounts thereafter becoming due from Tenant for subsequent
payments on account of Direct Expenses or will be paid within thirty (30) days
after the date of Landlord's statement.
7. Intentionally Omitted.
LATE CHARGES
8. Tenant agrees that all rental or other payments not paid within ten
(10) calendar days of the due date shall be considered delinquent and agrees to
pay a late charge equal to ten percent (10%) of the delinquent payment. Rent
mailed and bearing a U. S. Postal Service postmark of the fifth (5th) of a month
shall not be considered delinquent. Additionally, any delinquent payments not
paid within thirty (30) days of the original due date shall bear interest at
3.
the lower of the maximum rate then allowed by law or two points over the
reference ("prime") rate charged by the San Francisco Main Branch of the Bank of
America.
SECURITY DEPOSIT
9. (a) Tenant has deposited with Landlord the sum of Eighteen Thousand
Six Hundred Eighty One Dollars ($18,681.00) to be held by Landlord as security
for the faithful performance by Tenant of all the terms, covenants and
conditions of this Lease. If Tenant defaults with respect to any material
provision of this Lease, including, but not limited to the provisions relating
to the payment of rent, Landlord may (but shall not be required to) use, apply
or retain all or any part of this security deposit for the payment of any rent
or any other sum in default, or for the payment of any amount which Landlord may
spend or become obligated to spend by reason of Tenant's default, or to
compensate Landlord for any other loss or damage which Landlord may suffer by
reason of Tenant's default. If any portion of said deposit is so used or
applied, Tenant shall, within five business (5) days after written demand
therefor, deposit cash with Landlord in an amount sufficient to restore the
security deposit to its original amount and Tenant's failure to do so shall be a
material breach of this Lease. Landlord shall not be required to keep this
security deposit separate from its general funds, and Tenant shall not be
entitled to interest on such deposit. If Tenant elects to renew this Lease,
Tenant shall increase the security deposit to an amount equal to the monthly
rental of the extended term of this Lease.
(b) If Landlord's interest in this Lease is terminated Landlord shall
transfer said deposit to Landlord's successor in interest.
USE OF PREMISES
10. (a) Tenant shall use the Premises for general office purposes and
shall not use or permit the Premises to be used for any other purpose without
the prior written consent of Landlord, which consent shall not be unreasonably
withheld.
(b) Tenant shall not do or permit anything to be done in or about the
Premises nor bring or keep anything therein which will:
(i) increase the existing rate of or affect any fire or other
insurance upon the building or any of its contents, or
(ii) cause cancellation of any insurance policy covering said
building or any part thereof or any of its contents, or
(iii) in any way obstruct or interfere with the rights of other
tenants or occupants of the building or injure or annoy them.
Tenant shall not use or allow the Premises to be used for any
improper, immoral, or unlawful 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. Landlord agrees to
impose the restrictions contained in this subparagraph (b) of Paragraph 10 in
all its leases for the building of which the Premises are a part.
COMPLIANCE WITH LAW
11. Tenant shall not use the Premises or permit anything to be done in or
about the Premises 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 with all laws, statutes, ordinances, and governmental rules, regulations
or requirements now in force or which may hereafter be in force except that
Tenant shall not be required to make structural changes not related to or
affected by Tenant's improvements or acts. Tenant shall also comply with the
requirements of any board of fire insurance underwriters or other similar bodies
now or hereafter constituted relating to or affecting the condition, use or
occupancy of the Premises, excluding structural changes not related to or
affected by Tenant's improvements or acts. 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.
4.
ALTERATIONS AND ADDITIONS
12. (a) Tenant shall not make or allow any alterations, additions or
improvements of or to the Premises without Landlord's prior written consent,
which consent shall not be unreasonably withheld. Any such alterations,
additions or improvements, including, but not limited to, wall covering,
paneling and built-in cabinet work, but excepting movable furniture, vaults,
safes and other trade fixtures, shall become a part of the realty, shall belong
to Landlord and shall be surrendered with the Premises at expiration or
termination of the Lease. If Landlord consents to any such alterations,
additions or improvements by Tenant, they shall be made by Tenant at Tenant's
sole cost and expense, and any contractor or person selected by Tenant to
perform the work shall first be approved of, in writing, by Landlord, which
approval shall not be unreasonably withheld. Landlord further reserves the
right to require all plans for structural improvements and alterations to be
prepared or approved by its project structural engineer. No such work shall be
allowed to commence until three (3) days have elapsed from the date of
Landlord's consent. Upon expiration, or sooner termination, of the term hereof,
Tenant shall, upon written demand by Landlord given at least thirty (30) days
prior to the end of the term, promptly remove any alterations, additions or
improvements made by Tenant and designated by Landlord to be removed. Landlord
shall not make any unreasonable demands for such removal. Tenant agrees to
remove its vaults, safes and files upon termination of this Lease and return the
Premises to Landlord with either the slab floor ready for floor covering or with
such floor covering in place as Landlord may approve. In no event, however,
shall Tenant be required to install any floor covering on termination of this
Lease. Such removal and repair of any damage to the Premises caused by such
removal shall be at Tenant's sole cost and expense.
(b) Neither Tenant nor Landlord shall be allowed nor shall Landlord
allow any other tenant to place any name or sign on any portion of the building
exterior. Provided however, Landlord may permit Tenant and other tenants to
place painted business names or signs approved by Landlord on the glass portion
of the ground floor of the building, and further provided that Landlord shall
not allow the building to be named for any tenant but reserves the right to name
the project of which the building is a part and to place the street address on
the building in a reasonable and customary manner. Tenant shall have the right
to install a building standard sign on the left half of the third line of the
building monument sign at Tenant's sole cost and expense. All exterior signs
shall be located at locations approved by the City of Menlo Park.
LIENS
13. Tenant shall keep the Premises and the property in which the Premises
are situated free from any liens arising out of any work performed, materials
furnished or obligations incurred by Tenant. Landlord may require Tenant to
provide Landlord, at Tenant's sole cost and expense, 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 by Tenant, to insure Landlord against
liability for mechanics' and materialmen's liens and to insure completion of the
work. Landlord shall also have the right to post and maintain on the Premises
such notices of nonresponsibility as may be required by law to protect
Landlord's rights herein.
REPAIRS
14. (a) By taking possession of the Premises, Tenant shall be deemed to
have accepted the Premises as being in good sanitary order, condition and
repair. Tenant shall at Tenant's sole cost and expense, keep the Premises and
every part thereof in good condition and repair except for damage from causes
beyond the reasonable control of Tenant and ordinary wear and tear. Tenant shall
upon the expiration or sooner termination of this Lease surrender the Premises
to the Landlord in good condition, ordinary wear and tear and damage from causes
beyond the reasonable control of the Tenant excepted. Except for the repainting
of the interior of the Premises to match the previously repainted exterior,
unless specifically provided in an addendum to this Lease, Landlord shall have
no obligation 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.
(b) Notwithstanding the above provisions of Paragraph 14(a), Landlord
shall repair and maintain the structural portions of the building, including,
but not limited to, the plumbing, air conditioning, heating and electrical
systems, installed or furnished by Landlord, in accordance with the applicable
laws, statutes, ordinances, and rules and regulations of
5.
governmental agencies having jurisdiction over Landlord, unless such maintenance
and repairs are caused in part or in whole by the act, neglect, fault or
omission of any duty by the Tenant, its agents, servants, employees or invitees,
in which case Tenant shall pay to Landlord the reasonable cost of such
maintenance and repairs. Tenant shall give Landlord written notice of any
required repairs or maintenance. Landlord shall not be liable for any failure to
repair or to perform any maintenance unless such failure shall persist for an
unreasonable time after written notice. Except as provided in Paragraph 23
hereof, there shall be no abatement of rent and no liability of Landlord by
reason of any injury to or interference with Tenant's business arising from the
making of any necessary repairs, alterations or improvements to any portion of
the building or the Premises or to fixtures, appurtenances and equipment
therein, provided Landlord has acted reasonably in the performance of such work.
Tenant waives the right to make repairs at Landlord's expense under any law,
statute or ordinance now or hereafter in effect.
ASSIGNMENT AND SUBLETTING
15. (a) Tenant shall not, voluntarily or by operation of law, assign, or
transfer Tenant's interest under this Lease or in the Premises nor sublease all
or any part of the Premises or allow any other person or entity (except Tenant's
employees, agents and invitees) to occupy or use all or any part of the Premises
without the prior written consent of Landlord. Landlord's consent shall not be
unreasonably withheld. Without in any way limiting Landlord's right to refuse to
give consent under this Paragraph 15, Landlord's refusal to give consent shall
not be deemed unreasonably withheld if:
(i) The character, reputation and financial responsibility of
the proposed new Tenant or sub-tenant is not reasonably satisfactory in
Landlord's judgment, or in any event, not at least equal to those possessed
by Tenant or represented to be possessed by Tenant as of the date of the
execution of this Lease and/or the date of the requested consent. In
connection with any such assignment or subletting Tenant shall deliver to
Landlord certified financial statements of Tenant and the new proposed
tenant or sub-tenant showing their then financial condition as required
hereunder.
(ii) The proposed new tenant or sub-tenant fails to agree in
writing to assume and be bound by all the terms and provisions of this
Lease.
(b) Additionally, as a condition to Landlord's consent to an
assignment or subletting it is hereby agreed that there shall be paid to
Landlord the following: To the extent any rental or other payments under such
sublease or assignment exceed the base rental payments payable under the terms
of this Lease plus the assignment or subleasing commissions, and other costs of
assigning or subleasing, and tenant improvement costs, all amortized over the
initial term of the sublease or remainder of the lease term, 100% of such excess
(the total of such excess is referred to herein as "Excess Payments") shall be
paid to Landlord as such Excess Payments become due and payable under the terms
of the assignment or subletting.
(c) If Tenant hereunder is a corporation or at any time becomes a
corporation which, under the then current laws of the State of California, is
not deemed a public corporation, or is an unincorporated association or
partnership, the transfer, or assignment directly or indirectly of any stock or
interest in such corporation, association or partnership in the aggregate in
excess of forty-nine percent (49%) during the term hereof shall be deemed an
assignment within the meaning and provisions of Paragraph 15. Tenant shall
immediately report in writing any such transfer or assignment of any stock or
interest to Landlord.
(d) In the event Tenant proposes to transfer, assign, or sublet any
of Tenant's interests herein or enter into any license or concession agreement
or effectuate any change of ownership, Tenant shall thirty (30) days prior to
the proposed transaction supply to Landlord the following in writing:
(i) The name and address of the proposed assignee, transferee,
or sub-lessee.
(ii) All details as to the proposed assignment, subletting or
change of ownership including without limitation all of the terms and
conditions thereof including all sums or considerations to be paid.
(iii) A financial statement certified by an officer dated within
thirty (30) days of the date of notification of the proposed transferee,
assignee, sub-lessee, or the
6.
person or persons or entities which will be involved in the proposed or
change of ownership.
(iv) Within ten (10) days of any assignment or sub-lease Tenant
shall deliver to Landlord true, correct and complete copies of all
agreements, assignments, subleases and material documents pertaining
thereto, including any sales agreements.
Anything contained in this Paragraph 15 to the contrary
notwithstanding, no transfer, assignment, sub-letting of any of Tenant's
interests herein shall be effective unless all of the above provisions are
complied with within the time limits provided.
(e) Any additional documentation reasonably required by Landlord
shall be prepared and executed by Tenant and its assignee or sub-lessee or
transferee as part of the assignment or subletting or transfer before it shall
be effected.
(f) Anything contained herein to the contrary notwithstanding,
regardless of whether or not Lessor's consent is required, no sub-letting or
assignment or transfer of any of Tenant's interests hereunder shall be deemed to
release Tenant or any guarantor from any liability under the terms of this
Lease, nor, after any such consent shall Landlord's failure to give Tenant or
guarantor notice of default under any of the terms and conditions of this Lease
release Tenant or guarantor from any liability hereunder. A consent to one
assignment, subletting, occupation or use shall not be deemed a consent to any
subsequent assignment, subletting, occupation or use. Any such purported
assignment, subletting, or permission to occupy or use without such consent from
Landlord shall be void and shall, at the option of Landlord, constitute a
default under this Lease.
HOLD HARMLESS
16. (a) Tenant shall indemnify Landlord against and hold Landlord and
Landlord's property harmless from any and all liability, claims, loss, damages,
or expense, including counsel fees and costs, arising by reason of the death or
injury of any person, including Tenant or any person who is an employee, agent,
or customer of Tenant, or by reason of damage to or destruction of any property,
including property owned by Tenant or any person who is an employee, agent, or
customer of Tenant, caused or allegedly caused by:
(i) Any cause whatsoever while such person or property is in or
on said Premises or in any way connected with said Premises or with any
personal property on said Premises;
(ii) Some condition of said Premises for which Tenant is
responsible or for which Landlord is responsible and Landlord has not been
given notice thereof and reasonable time to correct;
(iii) Some act or omission on said Premises of Tenant or any
person in, on, or about said premises with the permission of Tenant; or
(iv) Any matter connected with Tenant's occupation and use of
said Premises, including, but not limited to any claims or damages related
to the use, storage, or disposal of hazardous wastes, toxic substances, or
related materials ("hazardous materials"). Hazardous materials shall
include, but not be limited to, substances defined as "hazardous
substances", "hazardous materials", or "toxic substances" in the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended; the Hazardous Materials Transportation Act; the Resource
Conservation and Recovery Act; and those substances defined as "hazardous
wastes" in Section 25117 of the California Health and Safety Code; in the
regulations adopted and publications promulgated pursuant to such laws; and
in the Hazardous Material Storage Ordinance of the City of Menlo Park, if
any, as amended. Landlord warrants to Tenant that to its best knowledge no
such hazardous materials are currently present in the Premises and hereby
agrees to indemnify Tenant from any liability for such hazardous materials
that might later be discovered to have existed in the Premises as of the
date of execution of this Lease.
(b) Tenant hereby assumes all risk of damage to property or injury to
persons, in, upon or about the Premises, from any cause other than Landlord's
negligence or misconduct, and Tenant hereby waives all claims in respect to such
injury or damage against Landlord.
7.
Landlord and its agents shall not be liable for any damage to property entrusted
to employees of the building, nor for loss or damage to any property by theft or
otherwise, nor from any injury to or damage to persons or property resulting
from any cause whatsoever, unless caused by or due to the negligence of
Landlord, its agents, or employees.
(c) If any action or proceeding is brought by reason of any such
claim as defined in Paragraph 16(a) and (b) above in which Landlord is named as
a party, Tenant shall defend Landlord therein at Tenant's expense by counsel
reasonably satisfactory to Landlord.
(d) Landlord and its agents and employees shall not be liable for
interference with the light or other incorporeal hereditaments, or loss of
business by Tenant. Notwithstanding the above, Landlord agrees that it will not
construct or cause to be constructed any structure adjacent to and connected
with the building of which the Premises are a part. Tenant shall give prompt
notice to Landlord in case of fire, or accidents in the premises or in the
buildings or of alleged defects in the building, fixtures or equipment.
RELEASE FROM LIABILITY/WAIVER OF SUBROGATION
17. If their respective insurers permits, and when any required special
endorsements are obtained, Landlord and Tenant hereby mutually waive their
respective rights of recovery against each other for any loss insured by fire,
extended coverage and other property insurance and public liability policies
existing for the benefit of the respective parties.
INSURANCE
18. (a) Tenant shall, at Tenant's expense, obtain and keep in force
during the term of this Lease a policy of comprehensive public liability
insurance insuring Landlord and Tenant against claims occurring in, on or about
the Premises and all areas appurtenant thereto. The limit of said insurance
shall not, however, limit the liability of Tenant hereunder. Tenant may carry
said insurance under a blanket policy, providing however, said insurance by
Tenant shall name Landlord as an additional insured. If Tenant fails to procure
and maintain said insurance, Landlord may, but shall not be required to, procure
and maintain same, but at the expense of Tenant. Insurance required hereunder,
shall be in companies rated A+, Class X 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 amount of such insurance with loss payable clauses satisfactory to
Landlord. No policy shall be cancellable or subject to reduction of coverage
except after fifteen (15) days prior written notice to Landlord. The minimum
acceptable amount of comprehensive liability insurance is $3,000,000 against
claims in any occurrence, and property damage insurance in an amount of not less
than $1,000,000 per occurrence, or combined single limit of $4,000,000
comprehensive liability and property damage insurance. The above stated minimum
levels of coverage are subject to amendment by Landlord upon ninety (90) days
written notice should the economic conditions, in the discretion of Landlord,
warrant adjustment thereof.
(b) Landlord shall carry and maintain, during the entire term,
including extensions hereof fire and all risk insurance insuring the Premises
and the building of which they are a part for their full replacement cost. Said
insurance policy or policies shall cover at least the following risks: fire,
smoke damage, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, malicious mischief, vandalism, aircraft, earthquake and sprinkler
leakage. Additionally, such policy or policies shall have a loss of rents
endorsement. Landlord may, at its option, also maintain a general liability
policy in a minimum amount of One Million Dollars ($1,000,000.00). The premiums
for such policy or policies shall be included in the Direct Expenses referred to
in Paragraph 6(b). Any loss payable under such insurance shall be payable to
Landlord and any Lender holding an encumbrance on the Premises. The proceeds
from any such policy or policies for damages to the Premises shall be used for
the repair of the Premises except as set forth in Paragraph 23.
SERVICES AND UTILITIES
19. (a) If Tenant is not in default hereunder, Landlord shall furnish to
the Premises during the hours of 6:30 a.m. to 8:00 p.m., Monday through Friday,
8:00 a.m. to 4:00 p.m. on Saturdays, holidays excepted, electricity for normal
lighting and fractional horsepower office machines, heat and air conditioning
required in Landlord's judgment for the comfortable use and occupation of the
Premises, and janitorial service. Landlord reserves the right to reallocate
utility charges to Tenant and other tenants of the building of which the
Premises are a
8.
part if Landlord determines the allocation provided in Paragraph 6(b) is
substantially unfair considering the usage Df the Premises by Tenant and the
usage of other space in the building by other tenants. Landlord shall maintain
and light the common stairs, common entries, and toilet rooms in the building.
Landlord shall not be liable for and Tenant shall not be entitled to, any
reduction of rental by reason of Landlord's failure to furnish any of the
foregoing when such failure is caused by accident, breakage, repairs, strikes,
lockout or other labor disturbances or labor disputes of any character, or by
any other cause, similar or dissimilar, beyond the reasonable control of
Landlord. Landlord shall not be liable for a loss of or injury to property,
however occurring, through or in connection with or incidental to furnishing or
its failure to furnish any of the foregoing for reasons beyond its control.
Wherever heat generating machines or equipment are used in the Premises which
affect the temperature otherwise maintained by the air conditioning system,
Landlord reserves the right to install supplementary air conditioning units in
the Premises and the cost thereof, including the cost of installation, and the
cost of operation and maintenance thereof shall be paid by Tenant to Landlord
upon demand by Landlord.
(b) Tenant will not, without written consent of Landlord, use any
apparatus or device in the Premises, including, but without limitation thereto,
electronic data processing machines, punch card machines, and machines using in
excess of 120 volts, which will increase the amount of electricity usually
furnished or supplied for the use of the Premises as general office space.
Tenant shall not connect with electric current except through approved
electrical outlets in the Premises or such additional electrical outlets as may
be installed by a licensed electrical contractor in conformance with the then
applicable building codes, any apparatus or device, for the purpose of using
electric current. If Tenant requires water, gas or electric current in excess of
that usually furnished or supplied for the use of the Premises as general office
space, Tenant shall first procure the written consent of Landlord (which
Landlord may refuse) to the use thereof and Landlord may cause a separate water,
gas or electrical current meter to be installed in the Premises to measure the
amount of water, gas and electric current consumed for any such use. The cost of
installation, maintenance and repair of any such meters shall be paid by Tenant.
Tenant agrees to pay to Landlord promptly upon demand, for all such water, gas
and electric current consumed as shown by said meters, at the rates charged for
such services by the local public utility furnishing the same, plus any
additional expense incurred in keeping account of the water and electric current
so consumed. If a separate meter is not installed, such excess cost for such
water, gas and electric current will be established and adjusted from time to
time by an estimate made by a utility company or electrical engineer.
Additionally, in the event Tenant requires the air conditioning system to be
operational beyond the hours set forth in Paragraph 19(a) above, Tenant shall
maintain written records of such additional usage and shall pay to Landlord, as
additional rent, $17.50 per hour of such extra usage (said rate to be adjusted
only if there is a material increase in electric utility rates over the rates
existing as of the date of this lease).
(c) Should any supplier of utility services or governmental agencies
regulating these services render any special assessments for or restriction upon
these services, it is agreed that these assessments or restrictions will be
fairly shared by each tenant in proportion to its share of direct expenses as
set forth in Paragraph 6(b) hereof.
PROPERTY TAXES
20. Tenant shall pay before delinquency, all taxes levied or assessed and
which become payable during the term hereof upon all Tenant's leasehold
improvements, equipment, furniture, fixtures and personal property located in
the Premises, except that which has been paid for by Landlord and is the
standard of the building. If any of the Tenant's leasehold improvements,
equipment, furniture, fixtures and personal property are 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 of a statement in writing setting
forth the amount of such taxes applicable to Tenant's property.
RULES AND REGULATIONS
21. Tenant shall faithfully observe and comply with the rules and
regulations attached to this Lease, as well as such rules and regulations that
Landlord shall from time to time promulgate, which rules and regulations shall
be uniform for all tenants and occupants of the building of which the Premises
are a part. Landlord reserves the right from time to time to make all reasonable
modifications to said rules, provided such changes do not impose any new
9.
economic burdens upon Tenant. The additions and modifications to those rules
shall be binding to Tenant upon delivery of a copy of them to Tenant. Landlord
shall not be responsible to Tenant for the nonperformance of any of said rules
by any other tenants or occupants.
ENTRY BY LANDLORD
22. (a) Landlord reserves the right to enter the Premises at any
reasonable time to inspect the Premises, to provide any service for which
Landlord is obligated hereunder, to submit the Premises to prospective
purchasers or tenants, to post notice of non-responsibility, and to alter,
improve, maintain or repair the Premises and any portion of the building of
which the Premises are a part that Landlord deems necessary reasonably or
desirable, all without abatement of rent. Except in the cases of emergencies and
to post notices of nonresponsibility, Landlord shall give telephone notice
twenty four (24) hours in advance, unless Tenant waives such notice, prior to
entering the Premises. Landlord may erect scaffolding and other necessary
structures where reasonably required by the character of the work to be
performed, but shall not block entrance to the Premises nor interfere with
Tenant's business, except as reasonably required for the particular activity by
Landlord. Landlord shall not be liable in any manner for any inconvenience,
disturbance, loss of business, nuisance, interference with quiet enjoyment, or
other damage arising out of Landlord's entry on the Premises as provided in this
paragraph, except damage, if any, resulting from the negligence of Landlord or
its authorized representatives.
(b) Landlord shall retain a key with which to unlock all doors into,
within and about the Premises, excluding Tenant's vaults, safes and files. In an
emergency, Landlord shall have the right to use any means which Landlord deems
reasonably necessary to obtain entry to the Premises without liability to
Tenant, except for any failure to exercise due care for Tenant's property. Any
such entry to the Premises by Landlord shall not be construed or deemed to be
forcible or unlawful entry into or a detainer of the Premises or an eviction of
Tenant from the Premises or any portion thereof.
DESTRUCTION/RECONSTRUCTION
23. (a) If ten percent (10%) or less of the Premises and the building of
which the same are a part is damaged by an uninsured peril, Landlord shall
promptly and diligently proceed to repair and restore the same to substantially
the same condition as existed prior to such damage or destruction; provided,
however, that should such damage be caused by the act, negligence or fault or
omission of any duty with respect to the same by Tenant, its agents, servants,
employees or invitees, Tenant and not Landlord shall be so obligated to repair
and restore. If the Premises are damaged by an uninsured peril rendering more
than ten percent (10%) of the Premises unusable for the conduct of Tenant's
business, Landlord may, upon written notice, given to Tenant within thirty (30)
days after the occurrence of such damage, elect to terminate this Lease;
provided, however, Tenant may, within thirty (30) days after receipt of such
notice, elect to make any required repairs and/or restoration, in which event
this Lease shall remain in full force and effect, and Tenant shall thereafter
diligently proceed with such repairs and/or restoration.
(b) If the Premises are damaged or destroyed by fire or other insured
peril, Landlord shall promptly and diligently proceed to repair and restore the
same to substantially the same condition as existed prior to such damage or
destruction; provided, however, that Landlord shall not be obligated to repair
and restore until either the insurer acknowledges that the loss is covered by
insurance and sufficient proceeds of such insurance are available to Landlord to
pay the costs (including a reasonable allowance for contractor's profit and
overhead not to exceed ten percent (10%) of the repairs and/or restoration) or
the Tenant agrees to pay such costs to Landlord. If the existing laws do not
permit the restoration, either party can terminate this Lease immediately by
giving notice to the other party.
If the cost of restoration exceeds the amount of insurance proceeds,
and Tenant has not agreed to pay the cost of repairs and/or restoration to
Landlord, Landlord can elect to terminate this Lease by giving notice to Tenant
within fifteen (15) days after determining that the restoration cost will exceed
the insurance proceeds. In the case of destruction to the Premises, if Landlord
elects to terminate this Lease, Tenant, within fifteen (15) days after receiving
Landlord's notice to terminate, can agree to pay to Landlord the difference
between the amount of insurance proceeds and the cost of restoration in which
case Landlord shall restore the Premises. Landlord shall give Tenant
satisfactory evidence that all sums contributed by Tenant
10.
as provided in this paragraph 23 have been expended by Landlord in paying the
cost of restoration.
If Landlord elects to terminate this Lease and Tenant does not elect
to contribute toward the cost of restoration as provided herein, this Lease
shall terminate, and all of the proceeds of the insurance shall be paid to
Landlord; provided, however, that in the event such proceeds shall include any
amounts paid for damage to or destruction of property belonging to Tenant,
Landlord shall within ten (10) days of receipt, pay over such amounts to Tenant
in the following manner: Out of the gross proceeds paid by insurance to
Landlord, Landlord shall retain an amount equivalent to the current replacement
value of the building and improvements owned by Landlord; after Landlord has
been so paid from the insurance proceeds, if there remains a balance of such
insurance proceeds which represent payment for damages to or destruction of
improvements added by Tenant after the date of Tenant's occupancy of the
Premises, then, to the extent of any remaining balance of the insurance proceeds
and to the extent of Tenant's direct costs of making such added improvements,
Landlord shall be obligated to pay over to Tenant such remaining insurance
proceeds. During any such repairs or restoration described in this paragraph
23, rent shall xxxxx in proportion to the area of the Premises rendered unusable
by such damage or destruction; provided, however, that if Landlord acts
reasonably Landlord shall have no liability by reason of injury to or
interference with Tenant's business or property arising from the making of any
repairs, alterations, or improvements in or to any portion of the Premises or in
or to fixtures, appurtenances and equipment therein; and further provided, that
if the damage was caused by the fault or neglect of Tenant, its agents or
employees, there shall be no such abatement of rent. If the Premises are
destroyed or substantially damaged within one year of the end of this Lease term
or extensions thereof, Landlord or Tenant shall each have the option to cancel
the Lease, and all insurance proceeds on the real property shall be paid to
Landlord.
In the event Tenant shall have paid all or a portion of the costs of
any repairs or restorations for which Landlord subsequently receives insurance
proceeds, then to the extent that such insurance proceeds and Tenant's payments
exceed Landlord's cost of repair and/or restoration, Landlord shall reimburse
Tenant to the extent of Tenant's payments.
(c) Landlord shall not be required to repair any damage by fire or
other cause, or to make any repairs or replacements of any panels, decoration,
office fixtures, railings, floor coverings, partitions, or any other property
installed in the Premises by Tenant unless Landlord receives insurance proceeds
therefor.
DEFAULT
24. Occurrence of any of the following events shall constitute a default
and breach of this Lease by Tenant.
(a) The vacating and abandonment of the Premises by Tenant.
(b) The failure by Tenant to make any payment of rent or any other
payment required of Tenant hereunder, as and when due, if such failure continues
for three (3) days after written notice thereof by Landlord to Tenant.
(c) The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease other than described in Paragraph 24(b)
above, where such failure continues for thirty (30) days after written notice
thereof by Landlord to Tenant; provided however, that if Tenant's default is
such that more than thirty (30) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commences such cure within
said thirty (30) day period and thereafter diligently prosecutes such cure to
completion.
(d) The making by Tenant of any general assignment or general
arrangement for the benefit of creditors or the filing by or against Tenant of a
petition to have Tenant adjudged bankrupt, or a petition, or reorganization or
arrangement under any law relating to bankruptcy (unless in the case of a
petition filed against Tenant, the same is dismissed within sixty (60) days); or
the appointment of a trustee or a receiver to take possession of substantially
all of Tenant's assets located at the Premises or of Tenant's interest in this
Lease, where possession is not restored to Tenant within thirty (30) days; or
the attachment, execution or other judicial seizure of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease,
where such seizure is not discharged in thirty (30) days.
11.
REMEDIES
25. Landlord shall have the following remedies if Tenant commits a
default. These remedies are not exclusive; they are cumulative and in addition
to any remedies now or later allowed by law.
(a) Landlord may continue this Lease in full force and effect, as
long as Landlord does not terminate Tenant's right to possession, and Landlord
shall have the right to collect rent when due. During the period Tenant is in
default, Landlord may enter the Premises and relet them, or any part of them, to
third parties for Tenant's account. Tenant shall be liable to Landlord for all
costs Landlord incurs in reletting the Premises, including, without limitation,
broker's commissions and expenses of remodelling the Premises reasonably
required by the reletting. Reletting may be for a period shorter or longer than
the remaining term of the Lease. Tenant shall pay to Landlord the rent due under
this Lease as and when due, less the rent Landlord receives from any reletting.
No act by Landlord allowed by this Paragraph shall terminate this Lease unless
Landlord notifies Tenant in writing that Landlord elects to terminate Tenant's
right to possession of the Premises. If Tenant obtains Landlord's consent,
Tenant shall have the right to assign or sublet its interest in this Lease, but
Tenant shall not be released from liability. Landlord's consent to a proposed
assignment or subletting shall not be unreasonably withheld.
(b) Landlord may terminate Tenant's right to possession of the
Premises at any time. No act by Landlord other than giving written notice to
Tenant shall terminate this Lease. Acts of maintenance, efforts to relet the
Premises, or the appointment of a receiver on Landlord's initiative to protect
Landlord's interest under this Lease shall not constitute a termination of
Tenant's right to possession. On termination, Landlord has the right to recover
from Tenant:
(i) The worth, at the time of the award of the unpaid rent that
had been earned at the time of termination of this Lease;
(ii) The worth, at the time of the award of the amount by which
the unpaid rent that would have been earned after the date of termination
of this Lease until the time of award exceeds the amount of the loss of
rent that Tenant proves could have been reasonably avoided;
(iii) The worth, at the time of the award of the amount by which
the unpaid rent for the balance of the term after the time of award exceeds
the amount of the loss of rent that Tenant proves could have been
reasonably avoided; and
(iv) Any other amount, and court costs, necessary to compensate
Landlord for all detriment proximately caused by Tenant's default.
"The worth, at the time of the award", as used in (i) and (ii) of this
subparagraph, is to be computed by allowing interest at the maximum rate
allowed by law. "The worth, at the time of the award", as referred to in
(iii) of this subparagraph, is to be computed by discounting the amount at
the discount rate of the Federal Reserve Bank of San Francisco at the time
of the award, plus one percent (1%).
EMINENT DOMAIN
26. If more than twenty-five percent (25%) of the Premises is taken or
appropriated by any public or quasi-public authority under powers of eminent
domain, either party hereto shall have the right at its option, to terminate
this Lease. If less than twenty-five percent (25%) of the Premises is taken (or
neither party elects to terminate as above provided if more than twenty-five
percent (25%) is taken), the Lease shall continue, and the rental thereafter to
be paid shall continue, but the rental thereafter to be paid shall be equitably
reduced. If more than twenty five percent (25%) of the building of which the
Premises are a part is so taken or appropriated, whether or not any part of the
Premises is involved, Landlord shall have the right, at its option, to terminate
this Lease in accordance with the foregoing provision. Whether or not the Lease
is terminated by reason of any such taking or appropriation, Landlord shall be
entitled to the entire award and compensation for the taking which is paid or
made by the public or quasi-public agency, and Tenant shall have no claim
against said award; except for amounts paid directly to Tenant for its moving
expenses, interruption to its business or damage to personal property or trade
fixtures. A voluntary sale by Landlord to any public body or agency having the
12.
power of eminent domain, either under threat of condemnation or while the
condemnation proceedings are pending shall be deemed to be a taking under the
power of eminent domain for the purposes of this Paragraph.
ESTOPPEL CERTIFICATE
27. 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
modifications and certifying that this Lease as so modified, is in full force
and effect), and the date to which the rental 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
real property of which the Premises are a part.
SUBORDINATION
28. Tenant agrees upon request of Landlord and any present or future
holder of any deed of trust affecting the Premises to subordinate this Lease and
its rights hereunder to the lien of any mortgage, deed of trust or other
encumbrance, together with any conditions, renewals, extensions, or replacements
thereof, now or hereafter placed, charged or enforced against the Landlord's
interest in this Lease and the leasehold estate thereby created, the Premises or
the land, building or improvements included therein or of which the Premises are
a part, and deliver (but without cost to Tenant) at any time and from time to
time upon demand by Landlord such documents as may be required to effectuate
such subordination, and in the event that Tenant shall fail, neglect or refuse
to execute and deliver any such document within ten (10) days after receipt of
written notice so to do and the receipt by Tenant of the document to be executed
by it, Tenant hereby appoints Landlord, its successors and assigns, the
attorney-in-fact of Tenant irrevocably to execute and deliver any and all such
documents for and on behalf of Tenant; provided, however, that Tenant shall not
be required to effectuate such subordination, nor shall Landlord be authorized
to effect such subordination on behalf of Tenant, unless the mortgagee or
trustee named in such mortgage, deed of trust or other encumbrance shall first
agree in writing, for the benefit of Tenant, that so long as Tenant is not in
default under any of the provisions, covenants or conditions of this Lease on
the part of Tenant to be kept and performed, that neither this Lease nor any of
the rights of Tenant hereunder shall be terminated or modified or be subject to
termination or modification, nor shall Tenant's possession of the Premises be
disturbed or interfered with, by any trustee's sale or by an action or
proceeding to foreclose said mortgage, deed of trust or other encumbrance.
In the event any proceedings are brought for foreclosure, or in the event
of the exercise of the power of sale under any mortgage or deed of trust made by
the Landlord covering the Premises, the Tenant shall attorn to the purchaser
upon any such foreclosure or sale and recognize such purchaser as the Landlord
under this Lease.
In the event that the mortgagee or beneficiary of any such mortgage or deed
of trust elects to have this Lease prior to its mortgage or deed of trust, then
and in such event upon such mortgagee or beneficiary giving written notice to
Tenant to that effect, this Lease shall be deemed prior to such mortgage or deed
of trust whether this Lease is dated or recorded prior to or subsequent to the
date of recordation of such mortgage or deed of trust.
Tenant acknowledges that this Lease is subordinate to that certain
Declaration of Covenants, Conditions and Restrictions dated March 11, 1981 and
recorded March 23, 1981 as Document No. 26228-AS in the Official Records of San
Mateo County, California.
PARKING
29. Tenant shall have the right to use in common with other Tenants or
occupants of the building parking facilities provided by Landlord for Tenants of
the building, subject to the rules and regulations, of Landlord for such parking
facilities which may be established or altered by Landlord at any time or from
time to time during the term hereof. Landlord agrees not to allocate or reserve
any other parking for any other tenant but reserves the right to impose uniform
restrictions on all or a portion of the remaining parking facilities.
13.
AUTHORITY
30. Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation, in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
Partnership Authority. If Tenant is a partnership, each individual
executing this Lease on behalf of said partnership represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
partnership and that this Lease is binding upon said partnership and its
partners in accordance with its terms.
GENERAL PROVISIONS
31. General Provisions.
(a) Clauses, plats and riders, if any, signed by the Landlord and the
Tenant and endorsed on or affixed to this Lease are a part hereof.
(b) The waiver by either party of any term, 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 terms, covenant or
condition herein contained. The subsequent acceptance of rent 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 rental so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of the acceptance of such rent.
Likewise, the subsequent payment of rent hereunder by Tenant shall not be deemed
to be a waiver of any preceding breach by Landlord of any term, covenant, or
condition of this Lease regardless of Tenant's knowledge of such preceding
breach at the time of the payment of such rent.
(c) All notices and demands which may or are required to be given by
either party to the other hereunder shall be in writing. All notices and demands
by the Landlord to the Tenant shall be sufficient if delivered in person or sent
by United States Mail, postage prepaid, addressed to the Tenant at the Premises
or to such other place as Tenant may from time to time designate in a written
notice to the Landlord. All notices and demands by the Tenant to the Landlord
shall be sufficient if delivered in person or sent by United States Mail,
postage prepaid, addressed to the Landlord at 000 X0 Xxxxxx Xxxx, Xxxxx 000,
Xxxxx Xxxx, Xxxxxxxxxx 00000 or to such other person or place as the Landlord
may from time to time designate in a notice to the Tenant. Any such notice is
effective at the time of delivery or if mailed, two (2) business days after
mailing.
(d) If there be more than one Tenant, the obligations hereunder
imposed upon Tenants shall be joint and several.
(e) The paragraph titles to the paragraphs of this Lease are not a
part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
(f) Time is of the essence of this Lease and each of its provisions
in which performance is a factor.
(g) The time in which any act provided by this Lease is to be done is
computed by excluding the first day and including the last, unless the last day
is a Saturday, Sunday, or holiday, and then it is also excluded. The term
"holiday" shall mean all holidays specified in Sections 6700 and 6701 of the
Government Code.
(h) 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.
(i) Neither Landlord nor Tenant shall record this Lease or a short
form memorandum hereof without the prior written consent of the other party.
(j) Upon Tenant paying the rent reserved hereunder and observing and
performing all of the covenants, conditions and provisions on Tenant's part to
be observed and
14.
performed hereunder, Tenant shall have quiet possession of the Premises for the
entire term hereof, subject to all the provisions of this Lease.
(k) This Lease contains all of the agreements of the parties hereto
with respect to any matter covered or mentioned in this Lease. No prior
agreements or understandings pertaining to any such matters shall be effective
for any purpose. No provision of this Lease shall be amended or added 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 on any
party until fully executed by both parties hereto.
(l) If either party shall be delayed or prevented from the
performance of any act required by this Lease by reason of acts of God, strikes,
lockouts, labor troubles, inability to procure materials, restrictive
governmental laws, or regulations or other cause, without fault and beyond the
reasonable control of the party obligated (financial inability excepted),
performance of such act shall be excused for the period of the delay; and the
period for the performance of any such act shall be extended for a period
equivalent for the period of such delay, provided, however, nothing in this
section shall excuse Tenant from the prompt payment of any rental or other
charge required of Tenant except as may be expressly provided elsewhere in this
Lease.
(m) 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
attorney's fees.
(n) In the event of any sale of the building, Landlord shall be and
is hereby entirely freed and relieved of all liability under any and all of its
covenants and obligations contained in or derived from this Lease arising out of
any act, occurrence or omission occurring after the consummation of such sale
and the purchaser, at such sale or any subsequent sale of the Premises shall be
deemed, without any further agreement between the parties or their successors in
interest or between the parties and any such purchaser, to have assumed and
agreed to carry out all of the covenants and obligations of the Landlord under
this Lease.
(o) Tenant shall not use the name of the building or of the
development in which the building is situated for any purpose other than as an
address of the business to be conducted by the Tenant in the Premises.
(p) 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 provision shall remain in full force and effect.
(q) No remedy or election hereunder shall be deemed exclusive but
shall, wherever possible, be cumulative with all other remedies at law or in
equity.
(r) This Lease shall be governed by the laws of the State of
California.
(s) Tenant shall not conduct any auction, on or at the Premises or
building without Landlord's prior written consent.
(t) Nothing contained in this Lease shall be deemed or construed by
the parties or by any third person to create the relationship of principal and
agent or of partnership or of joint venture or of any association between
Landlord and Tenant, and neither the method of computation of rent nor any other
provisions contained in this Lease nor any acts of the parties shall be deemed
to create any relationship between Landlord and Tenant other than the
relationship of Landlord and Tenant.
(u) (i) The language in all parts of this Lease shall in all cases
be simply construed according to its fair meaning and not strictly for or
against Landlord or Tenant. Unless otherwise provided in this Lease, or
unless the context otherwise requires, the following definitions and rules
of construction shall apply to this Lease.
(ii) In this Lease the neuter gender includes the feminine and
masculine, and the singular number includes the plural, and the word
"person" includes corporation, partnership, firm, or association wherever
the context so requires.
(iii) "Shall", "will", and "agrees" are mandatory, "may" is
permissive.
15.
(iv) All references to the Term of this Lease or the Lease Term
shall include any extensions of such Term.
(v) Parties shall include the Landlord and Tenant named in this
Lease.
(vi) As used herein, the word "sublessee" shall mean and
include, in addition to a sublessee and subtenant, a licensee,
concessionaire, or other occupant or user of any portion of the leased
Premises or buildings or improvements thereon.
BROKERS
32. Each party warrants to the other that it has had no dealings with any
real estate broker or agent in connection with the negotiation of this Lease
other than Blickman Turkus Commercial Real Estate and Cornish and Xxxxx
Commercial Real Estate, and it knows of no other real estate broker or agent who
is entitled to a commission in connection with this Lease. Each party agrees to
indemnify and hold the other harmless from any cost, expense, or liability for
any compensation, commissions, or charges claimed by any other broker or agent
who alleges he is owed a compensation through it.
LIST OF EXHIBITS
33. The following is a complete list of the documents attached hereto and
made a part of this Lease:
EXHIBIT NUMBER DESCRIPTION
A Floor Plan
B Rules and Regulations
The parties hereto have executed this Lease and on the dates specified
immediately adjacent to their respective signatures.
LANDLORD:
MENLO STATION DEVELOPMENT,
a General Partnership
By THE CORTANA CORPORATION,
Managing General Partner
By /s/ Xxxxx X. Xxxxxxxxxx Date 6-10-94
------------------------- ---------------------------
By Date
------------------------- ---------------------------
TENANT:
BE INCORPORATED
By /s/ Xxxx-Xxxxx Xxxxxx Date 6-10-94
------------------------- ---------------------------
By Date
------------------------- ---------------------------
16.
EXHIBIT A
[THIRD FLOOR PLAN APPEARS HERE]
EXHIBIT B
Rules and Regulations
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside or
inside of the Building without the written consent of Landlord first had and
obtained and Landlord shall have the right to remove any such sign, placard,
picture, advertisement, name or notice without notice to and at the expense of
Tenant.
All approved signs or lettering on doors shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved of by
Landlord.
Landlord will provide and maintain an alphabetical directory board in
the ground floor lobby of the Building. It shall display only the names and
office numbers of tenants of the Building. Should Landlord permit additional
names to be listed, it reserves the right to make a reasonable charge for each
such additional name.
Tenant shall not place anything or allow anything to be placed near
the glass of any window, door, partition or wall which may appear unsightly from
outside the Premises; provided, however, that Landlord may furnish and install a
Building standard window covering at all exterior windows. Tenant shall not
without prior written consent of Landlord cause or otherwise sunscreen any
window.
2. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by any of the tenants or used by them for any
purpose other than for ingress and egress from their respective Premises.
3. Tenant shall not alter any lock or install any new or additional locks
or any bolts on any doors or windows of the Premises. Landlord will not permit
entrance to Tenant's offices by use of pass key controlled by Landlord to any
person at any time without written permission by Tenant, except employees,
contractors, or service personnel directly supervised or employed by Landlord.
4. The toilet rooms, 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 and 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.
5. Tenant shall not overload the floor of the Premises or in any way
deface the Premises or any part thereof.
6. No furniture, freight or equipment of any kind shall be brought into
the Building without the prior notice to Landlord and all moving of the same
into or out of the Building shall be done at such time and in such manner as
Landlord shall designate. Landlord shall have the right to prescribe the
weight, size and position of all safes and other heavy equipment brought into
the Building and also the times and manner of moving the same in and out of the
Building. Safes or other heavy objects shall, if considered necessary by
Landlord, stand on supports of such thickness as is necessary to properly
distribute the weight. Landlord will not be responsible for loss of or damage
to any such safe or property from any cause and all damage done to the Building
by moving or maintaining any such safe or other property shall be repaired at
the expense of Tenant.
7. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance or compression motors in the Premises, or permit or
suffer the Premises to be occupied or used in a manner offensive or
objectionable to the Landlord or other occupants of the building by reason of
noise, odors and/or vibrations, or interfere in any way with other tenants or
those having business therein, nor shall any animals or birds be brought in or
kept in or about the Premises or the Building.
8. No cooking except by microwave ovens and electric coffee makers shall
be done or permitted by any Tenant on the Premises, nor shall the Premises be
used for the storage of
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merchandise, for washing clothes, for lodging, or for any improper,
objectionable or immoral purposes.
9. Tenant shall not use or keep in the Premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied by Landlord.
10. Landlord will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires will be
allowed without the consent of the Landlord. The location of telephones, call
boxes and other office equipment affixed to the Premises shall be subject to the
approval of Landlord.
11. On Saturdays, Sundays and legal holidays, and on other days between
the hours of 7:00 p.m. and 7:00 a.m. the following day, access to the Building,
or to the halls, corridors, elevators or stairways in the Building, or to the
Premises may be refused unless the person seeking access is known to the person
or employee of the Building in charge and has a pass or is properly identified.
The Landlord shall in no case be liable for damages for any error with regard to
the admission to or exclusion from the Building of any person. In case if
invasion, mob, riot, public excitement, or other commotion, the Landlord
reserves the right to prevent access to the Building during the continuance of
the same by closing of the doors or otherwise, for the safety of the tenants and
protection of property in the Building and the Building.
12. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
the rules and regulations of the Building.
13. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of the
Landlord.
14. Tenant shall not disturb or solicit any occupant of the Building and
shall cooperate to prevent same.
15. 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.
16. Landlord shall have the right to control, operate and maintain the
public portions of the Building, and the public facilities, and heating and air
conditioning, as well as facilities furnished for the common use of the tenants,
in such manner as it deems reasonable for the benefit of the tenants generally.
17. All entrance doors in the Premises shall be left locked when the
Premises are not in use, and all doors Opening to public corridors shall be kept
closed except for normal ingress and egress from the Premises.
18. No object shall be thrown out of the windows of the Building or down
the stairways or other passages.
19. Tenant, its employees, agents, customers and invitees shall have the
right to use parking space provided by Landlord but not so as to unreasonably
interfere with the similar parking rights of other tenants in the same or
neighboring building. Landlord reserves the right to promulgate such additional
parking rules and regulations as may be necessary for operation of the Premises.
20. The Landlord shall not be liable for any damages from the stoppage of
elevators for necessary or desirable repairs or improvements, or delays of any
sort or duration in connection with the elevator service.
21. No Tenant shall employ, without the consent of Landlord, any person or
persons other than the janitor of Landlord for the purpose of cleaning Tenant's
premises. Landlord shall not, however, be liable for any damage done to or loss
of property by any Tenant caused, or allegedly caused, by the janitor or any
other cause whatsoever not specified in Tenant's lease.
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22. Any request of a Tenant for service or any other matter connected with
the Building must be made to and at the Landlord's office and not to an
individual employee of Landlord. Employees of Landlord shall perform no work or
do anything outside their regular daily duties except on order of Landlord's
office. No employee of Landlord shall admit any person, Tenant or otherwise, to
any office in the Building without specific instructions from the Landlord.
23. Landlord reserves the right to amend these rules and regulations and
to make such other and further rules and regulations for the Building as may
from time to time, in the judgment of Landlord, be required for the orderly and
safe conduct of building operations.
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