Exhibit 10.8
THIS LEASE, dated December 3 , 2001, (which date is to be used for
reference purposes only) is made and entered into by and between Maple Plaza,
Ltd., a California limited partnership, having an office at c/o Realtech
Development & Construction Company, 0000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, ("Landlord") and STATMON TECHNOLOGIES CORP., a
Delaware corporation______________________("Tenant").
ARTICLE 1
SUMMARY OF BASIC TERMS
1.01 PURPOSE. This Article defines certain terms used in this Lease,
subject, however, to qualifications and exceptions set forth elsewhere herein.
1.02 LAND. The term "Land" means that certain real property in the City
of Xxxxxxx Hills, County of Los Angeles, State of California, owned by the
Landlord.
1.03 BUILDING. The term "Building" means that certain office building
complex constructed on the Land and having the name of Maple Plaza (a portion of
which has the street address of 000 Xxxxx Xxxxx Xxxxx, Xxxxxxx Xxxxx,
Xxxxxxxxxx), including all parking garages, outside plazas, atria, lobbies,
office and commercial spaces, landscaping, water elements, fine art and the
Land.
1.04 PREMISES. The term "Premises" means the space on floor(s) 1st of
the Building, known as Suite(s) 120 and located substantially as shown on the
floor plan(s) attached hereto as Exhibit A, subject to relocation to other
floor(s) pursuant to Article 22 (if applicable).
1.05 LEASE TERM. The phrase "Lease Term" means the term of this Lease,
which shall be (i) a period of 3 years and -0- months commencing as set forth in
Subsection 2.02(a), plus a stub period of a partial month as necessary in order
for the Lease Term to end on the last day of a month (the "Initial Term"), plus
(ii) the period(s) of any renewal option(s) which Tenant duly exercises, unless
the Lease Term is earlier terminated pursuant to any of the provisions of this
Lease or law.
1.06 INITIAL BASIC RENT. The phrase "Initial Basic Rent" means the sum
of $77,583.00 per annum, as described more fully in Article 3.
1.07 TENANT'S SHARE. The phrase "Tenant's Share" shall mean .837
percent.
1.08 SECURITY DEPOSIT. The phrase "Security Deposit" means a security
deposit in the amount of $6,465.25, to be held and used by Landlord as provided
in Article 5.
1.09 TENANT'S PARKING. The phrase "Tenant's Parking" signifies
nonexclusive parking for 7 automobiles in the parking garage of the Building as
provided in Section 25.01.
1.10 TENANT'S BROKER. The phrase "Tenant's Broker" means First Property
Realty Corportion, whose address and telephone number are:
Address: 0000 Xxxxxxx Xxxx Xxxx, Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
1.11 PRIOR ADDRESS. The address of Tenant prior to the Commencement Date
(as hereinafter defined) is:
Address: 000 X. Xxxxxx Xxxxx #000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
1.12 TENANT'S IDENTITY. Tenant is
[X] a corporation incorporated in the State of Delaware
1.13 PERMITTED USE. The phrase "Permitted Use" means General Office and
related business purposes of the original Tenant named herein in keeping with
the class and character of the Building as a first class office building.
1.14 RENTABLE AREA OF THE PREMISES. The phrase "Rentable Area of the
Premises" means 2,351 square feet. Excepting only those adjustments made
pursuant to Subsection 2.01(b).
1.15 RENT COMMENCEMENT DATE. The phrase "Rent Commencement Date" shall
mean: December 10, 2001.
1.16 LEASE DATE. The phrase "Lease Date" shall mean that date upon which
this Lease is fully executed by both Landlord and Tenant.
ARTICLE 2
DEMISE, TERM AND OCCUPANCY
2.01 DEMISE.
(a) Demise and Reservation. Landlord hereby leases the Premises to
Tenant, and Tenant hereby hires the Premises from Landlord, reserving however to
Landlord all of the rights, interests and estates in the Premises, Building, and
Land not granted to Tenant by this Lease.
(b) Determination of Rentable Area of the Premises. The number of square
feet set forth in Section 1.14 for the Rentable Area of the Premises shall be
conformed to that determined by Landlord's space planner as soon as practicable
after receipt from Landlord of the final floor plan for the Premises. If the
Rentable Area of the Premises is so determined to be other than as set forth in
Section 1.14, or if there occurs a change in the size of the Premises, then all
amounts, sums and/or percentages based upon the Rentable Area of the Premises
shall be equitably prorated in accordance therewith. After the Rentable Area of
the Premises has been determined as provided herein, the parties shall execute
an addendum to this Lease setting forth the Rentable Area of the Premises, and
the amounts, suns and/or percentages based thereon and adjusted as set forth
above. The failure of either party to execute such addendum shall not affect the
validity or enforceability of this Lease nor excuse the payment of Rents by
Tenant. The number of square feet of Rentable Area of the Premises as determined
by Landlord's space planner shall for all purposes of this Lease conclusively be
deemed to be the Rentable Area of the Premises, and Tenant shall be responsible
for payment of all Rents and performance of all obligations based upon or
calculated from the Rentable Area of the Premises as so determined.
2.02 COMMENCEMENT.
(a) Lease Term. The lease Term (i) shall commence on the date (the
"Commencement Date") that is the earlier to occur of (A) the Rent Commencement
Date (if Subsection 2.03(b) applies to this Lease) or the Occupancy Date (if
Subsection 2.03(c) applies to this Lease), and (B) the date Tenant first
occupies any part of the Premises, with Landlord's consent, for the purpose, of
commencing business, and (ii) shall end at noon on the earlier of the last day
of the Lease Term (the "Expiration Date") or such earlier termination of this
Lease. After the Commencement Date, upon Landlord's request, Tenant shall
promptly complete and execute a copy of the form attached hereto as Exhibit B.
(b) Obliqations and Duties. Tenant shall be bound, as of the Lease Date,
by all obligations and duties under this Lease, except as otherwise specifically
provided herein. Failure of Tenant to fulfill any such obligation and/or duty
before any other such obligation and duty becomes binding shall not preclude
Landlord from obtaining any remedy available hereunder, at law, or in equity.
2.03 PREPARATION OF PREMISES.
(a) Preparation Work. The Premises shall be prepared for Tenant's
occupancy in accordance with the Work Letter for Tenant Improvements attached
hereto as Exhibit C (the "Work Letter").
(b) Tenant Constructs Improvements. This Subsection 2.03(b) shall form a
part of this Lease only if Tenant is to construct the tenant improvements under
the Work Letter. If so, the Occupancy Date shall be the date that is the earlier
to occur of (i) the Rent Commencement Date, or (ii) the date Tenant, or anyone
claiming under or through Tenant, first occupies any part of the Premises, with
Landlord's consent, for the purpose of constructing the tenant improvements
under the Work Letter, notwithstanding that minor incorrect or incomplete
details of construction or mechanical adjustments, pertaining only to the Base
Building Work (as defined in the Work Letter), which do not materially interfere
with Tenant's performance of Tenant's Work (as defined in the Work Letter)
remain to be performed (such details and adjustments are referred to as
"Punch-List Items"). Tenant shall be deemed to have accepted the Premises and to
have found them to be in satisfactory condition, except for any Punch-List
Items, on the Occupancy Date. On or before the Occupancy Date, Tenant shall
submit a punch list to Landlord, describing the Punch-List Items with reasonable
specificity and detail, and Landlord shall provide Tenant with reasonable and
timely access to the Premises to allow Tenant to so perform. Landlord shall
correct all Punch-List Items on the punch list of which it is reasonable to
require correction by Landlord and shall do so with reasonable diligence in a
manner consistent with Tenant's construction of the tenant improvements under
the Work Letter.
(c) Landlord Constructs Improvements. This Subsection 2.03(c) shall form
a part of this Lease only if Landlord is to construct the tenant improvements
under the Work Letter. If so, the Occupancy Date shall be the date on which (i)
Landlord has substantially completed the work it is obligated to perform
pursuant to the Work Letter; and the same shall be deemed substantially
completed notwithstanding the fact that certain items, such as minor details of
construction,
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mechanical adjustment or decoration, which do not materially interfere with
Tenant's use of the Premises (i.e., the "Punch-List Items"), remain to be
performed, and (ii) access to the Premises is available to Tenant. However, if
completion of either of the above requirements for establishing the Occupancy
Date is delayed due to (iii) any act or omission of Tenant or any of its
employees, agents or contractors, including, but not limited to, delays due to
changes in or additions to Landlord's Work (as defined in the Work Letter)
requested by Tenant or delays by Tenant in the submission of plans, drawings,
specifications or other information, the approval of working drawings or
estimates, or the giving of necessary authorizations or approvals regarding
tenant improvements, or (iv) the inclusion in Landlord's Work of any Tenant's
Work (as defined in the Work Letter), or a shortage or unavailability of
materials required for Tenant's Work, then the Occupancy Date shall be deemed to
have been the date that said two requirements would have been completed but for
such delay. Landlord shall give Tenant at least 15 days' notice in advance of
Landlord's estimate of the Occupancy Date. Any variance between the date so
estimated and the actual Occupancy Date shall be of no consequence, and Landlord
shall not incur any liability on account of such variance. Tenant shall be
deemed to have accepted the Premises and to have found them to be in
satisfactory condition, except for any Punch-List Items, on the Occupancy Date.
Within 10 days after the Occupancy Date, Tenant shall submit a punch list to
Landlord, describing the Punch-List Items with reasonable specificity and
detail. Landlord shall correct all Punch-List Items on the punch list of which
it is reasonable to require correction by Landlord.
ARTICLE 3
RENT
3.01 RENTS. Commencing on the Commencement Date and thereafter during the Lease
Term, Tenant shall pay to Landlord the following rents for the Premises (the
"Rents"): (a) a basic rent per annum (the "Basic Rent") in the amount of the
Initial Basic Rent, adjusted periodically as set forth in Section 3.04, which
shall be due and payable in equal monthly installments in advance on the first
day of each and every calendar month during the Lease Term, and (b) additional
charges ("Additional Charges") consisting of all other sums of money payable by
Tenant under the provisions of this Lease. The first installment of Basic Rent
shall be due and payable upon execution of this Lease.
3.02 PAYMENT. Tenant shall pay the Rents when due, without notice or demand, and
without any abatement, deduction or setoff, except for abatements expressly
provided for elsewhere in this Lease. Tenant shall pay the Rents in lawful money
of the United States, to Landlord at its office in the Building or to such other
person or place as Landlord may designate from time to time. If Tenant pays
Rents by chock, the checks must clear within five business days.
3.03 PRORATION. Any Rents, the amount of which is determined in part by the
length of a period of time, shall be prorated as and when appropriate on the
basis of a 30-day month or a 360-day year.
3.04 ADJUSTMENTS OF BASIC RENT.
(a) Specific Adjustments. During the Lease Term, the Basic Rent shall be
adjusted as follows:
(i) Effective as of the 13th month following the Rent
Commencement Date and continuing until the 2nd anniversary of the Rent
Commencement Date, the Basic Rent shall be $84,636.00 per annum.
(ii) Effective as of the 2nd anniversary of the Rent
Commencement Date and continuing until the 3rd anniversary of the Rent
Commencement Date, the Basic Rent shall be $91,689.00 per annum.
In addition to the adjusted Basic Rent, Tenant shall continue to pay Additional
Charges on account of all other sums of money payable by Tenant under the
provisions of this Lease, including but not limited to sums payable on account
of Taxes and Costs of Operation as provided for in Section 4.02 hereof.
3.05 PARTIAL PAYMENT. No payment by Tenant or receipt or acceptance by Landlord
of a lesser amount than the correct Basic Rent or Additional Charges due shall
be deemed to be other than a payment on account, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment be deemed
an accord and satisfaction, and Landlord may accept such check or payment,
irrespective of any such endorsement or statement, without prejudice to
Landlord's right to recover the balance, treat such partial payment as a default
or pursue any other remedy provided in this Lease or at law.
3.06 LATE CHARGE. Tenant hereby acknowledges that the late payment of Rents will
cause Landlord to incur damages,
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including administrative costs, loss of use of the overdue funds and other
costs, the exact amount of which would be impractical and extremely difficult to
ascertain. Landlord and Tenant therefore agree that if Landlord does not receive
a payment of Rents within ten (10) days after the date that such payment is due,
Tenant shall pay to Landlord, as Additional Charges, a late charge of ten cents
for each dollar so overdue. Acceptance of the late charge by Landlord shall not
cure or waive Tenant's default, nor prevent Landlord from exercising, before or
after such acceptance, any of the rights and remedies for a default provided by
this Lease or at law. Payment of the late charge is not an alternative means of
performance of Tenant's obligation to pay Rents at the times specified in this
Lease.
ARTICLE 4
OPERATING EXPENSE ADJUSTMENTS
4.01 OPERATING EXPENSE DEFINITIONS. For the purpose of this Article, the
following terms shall have the meanings herein ascribed to them:
(a) Costs of Operation. "Costs of Operation" shall mean, in any Lease
Year, and subject to the adjustment set forth in Subsection 4.01(c), all
expenses, costs and disbursements of every kind and nature paid or incurred by
or on behalf of Landlord with respect to or for the operation, maintenance and
management of the Building. Without in any way limiting the generality of the
foregoing, Costs of Operation shall include the following:
(i) Wages, including all fringe benefits of every nature and
kind, Workers' Compensation, and payroll taxes of employees of Landlord at the
level of building manager and below engaged in the operation, maintenance and
management of the Building;
(ii) Costs of goods, tools, supplies and services supplied or
used in or with respect to the operation, maintenance and management of the
Building, including without limitation the cost of insurance premiums; cleaning,
painting, janitorial, trash removal, security and other services; legal,
accounting and other consultants' fees; operation of elevators and security
systems; heating, cooling, air conditioning and ventilating; hot and cold water,
gas, electricity, sewer and other utilities; maintenance of and repairs to the
Building, and to any equipment, machinery or apparatus, therein; window
cleaning; service agreements on equipment; licenses, permits and inspections;
depreciation on personal property, toots and moveable equipment used in the
repair, maintenance or operation of the Building; contesting the validity or
applicability of any law if a successful contest would reduce Costs of
Operation; maintenance and repairs of the structural components, building
systems, and finish work relating to the parking garage; and of the landscaping,
signs, plazas, furnishings, water elements, sidewalks, streets and walkways in
or adjacent to the Building;
(iii) Management fees and other costs and expenses paid to
Landlord's managing agent; or, if Landlord acts as the managing agent, a sum in
lieu thereof which does not exceed the then-prevailing rates for management fees
for other first-class office buildings in Xxxxxxx Hills;
(iv) Costs of capital improvements and replacements which are
intended to reduce Costs of Operations or which are required by law, and which
are made after completion of the Building shell and amortized (with interest at
prevailing rates) over the useful life of such improvements;
(v) Rentals paid by Landlord with respect to machinery,
equipment, tools, materials, facilities or systems for the normal management,
maintenance or operation of the Building;
(vi) All expenses and costs incurred by Landlord as a result of
or in order to comply,with laws, including without limitation laws pertaining to
energy or natural resource conservation or environmental protection, and all
charges, taxes, surcharges, assessments or penalties imposed by any government
agency or public utility as a means of conserving or controlling the consumption
of water, gas, electricity, energy, natural resources, or other products or
services; and
(vii) All of the following: (A) all taxes, general and special
assessments, duties, charges, and levies of every kind, character and
description whatsoever, levied, imposed or charged upon or against the Building
or any part hereof or the various estates in the Building or any part thereof or
upon Landlord with respect thereto, except as set forth in Section 9.05; (B) all
taxes levied, imposed or charged on real and personal property used in the
operation, maintenance or management of the Building; (C) all taxes levied,
imposed or charged against or measured by or based upon the rent payable by
lessees and occupants of the Building or the value of the Building or any part
thereof; (D) all taxes imposed or charged in the future in lieu there of or for
which Landlord is liable with respect to the Building; (E) all sales,' use, and
utility taxes and other similar amounts which are expensed by Landlord in
connection with the Building; and (F) costs and expenses incurred by Landlord in
contesting the amount, validity or applicability of any of the foregoing; but
not including Landlord's income, franchise, gift, estate, inheritance, transfer,
excise or excess-profits taxes to the extent that any such income, franchise,
gift, estate, inheritance, transfer, excise or excess-profits taxes are not
levied in whole or partial substitution for any other taxes; recoveries through
protest, appeals or other actions taken by Landlord, after deduction of all
costs and expenses, including legal and other professional fees and costs, shall
be deducted for the year of receipt.
(b) Costs of Operation -- Exclusions. Costs of Operation shall exclude
the following:
(i) Costs incurred by Landlord with respect to goods and
services supplied to lessees and occupants of the Building to the extent that
such lessees and occupants directly reimburse Landlord for such costs other than
as provided in this Article 4;
(ii) Costs incurred by Landlord for the repair of damage to the
Building to the extent that Landlord is reimbursed by insurance proceeds;
(iii) Costs incurred by Landlord with respect to the
installation of tenant improvements made for tenants in the Building;
(iv) Depreciation (other than on personal property, tools and
moveable equipment as described in Clause (ii) of Subsection 4.01(a) above),
interest and principal on mortgages encumbering the Building or the Land;
(v) Landlord's direct out-of-pocket costs for labor and
materials for the operation of the parking garage:
(vi) Costs incurred in connection with the leasing of space in
the Building and the renewal or enforcement of existing leases, including
leasing commissions and brokerage fees, legal fees, tenant improvements costs
and allowances and advertising expenses, except advertising expenses related to
public relations or community activities;
(vii) Costs of purchasing line art works (except that graphics,
signs and conventional decoration shall not be excluded); and
(viii) Costs and expenses otherwise includable in Costs of
Operation, to the extent that the Landlord is reimbursed or paid from other
sources for such costs and expense.
(c) Costs of Operation - Adjustments. If more or less than 95 percent of
the Rentable Area of the Building is occupied and fully serviced during any
period in a Lease Year, then the Costs of Operation for such Lease Year shall be
adjusted to what the Costs of Operation would have been if 95 percent of the
Rentable Area of the Building had been occupied and fully serviced throughout
such Lease Year.
(d) Lease Year. "Lease Year" shall mean any calendar year that overlaps
the Lease Term as to any period.
4.02 ADJUSTMENT OF RENTS.
(a) Costs of Operation. Tenant shall pay, as Additional Charges, an
amount equal to the amount, if any, by which the product of Costs of Operation
multiplied by Tenant's Share exceeds the Costs if Operation for 2002. Tenant
shall pay such Additional Charges in the following manner: commencing as of
January I of the Lease Year, on or before the first day of each calendar month.
Tenant shall pay Landlord one-twelfth (1/12) of the amount of the Additional
Charges, as reasonably estimated by Landlord, due from Tenant for the Lease Year
pursuant to Subsection 4.02(a), as shown by a statement provided by Landlord to
Tenant ("Landlord's statement"). There shall be a final adjustment at the end of
each Lease Year, to reflect actual Costs of Operation for said Lease Year.
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(b) Revised Estimates. Quarterly during the Lease Year, if Landlord has
received evidence indicating an increase in Costs of Operation over that set
forth in Landlord's statement, Landlord may revise its estimates of Costs of
Operation for the Lease Year. The amounts of Additional Charges on account of
Costs of Operation, and the installment payments with respect thereto, shall
then be adjusted as necessary to assure that, as nearly as possible, Tenant
shall have paid Tenant's Share of Additional Charges on account of Costs of
Operation, based on the revised estimates, by the end of the Lease Year.
(c) Final Statement. As soon as practicable after the end of each Lease
Year, Landlord shall present Tenant with a final statement ("Landlord's final
statement") of actual Costs of Operation for such Lease Year. Within five days
of presentation of Landlord's final statement, Tenant shall pay Landlord, as
Additional Charges, any amount due for Tenant's Share of Costs of Operation. Any
credit due Tenant for overpayment of Tenant's Share of Costs of Operation shall
be credited against the monthly installments of Basic Rent next coming due
(except that Landlord shall refund to Tenant the amount of any such credit for
the final Lease Year in the Lease Term). Tenant shall have 30 days after
presentation of Landlord's final statement within which to object in writing to
the accuracy of Landlord's final statement; after expiration of said 30-day
period, Landlord's final statement shall be conclusive and binding on Tenant.
Until resolution thereof, objection by Tenant shall not excuse or xxxxx Tenant's
obligation to make the payments required by this Section 4.02.
ARTICLE 5
SECURITY DEPOSIT
5.01 SECURITY DEPOSIT. Concurrently with Tenant's execution of this Lease,
Tenant shall deposit the Security Deposit with Landlord. Said sum shall be held
by Landlord as security for the faithful performance by Tenant of all the terms,
covenants, and conditions of this Lease to be kept and performed by Tenant
hereunder. If Tenant defaults with respect to any provision of this Lease,
including, but not limited to the provisions relating to the payment of Rents,
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 Rents 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, direct or indirect, which Landlord may suffer by reason of Tenant's
default. It any portion of said deposit is so used or applied, then Tenant
shall, within five (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 default under 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 shall fully and faithfully perform every provision of this Lease to be
performed by it, the security deposit or any balance thereof shall be returned
to Tenant (or, at Landlord's option, to the last assignee of Tenant's interest
hereunder) within thirty (30) days following expiration of the Lease Term. If a
termination of Landlord's interest in this Lease occurs, then Landlord shall
transfer said deposit to Landlord's successor in interest.
ARTICLE 6
USE AND COMPLIANCE WITH LAW
6.01 USE. Tenant shall use and occupy the Premises for the Permitted Use and for
no other purpose whatsoever, and shall obtain and maintain all licenses and
permits required therefor by law.
6.02 PROHIBITED USES. Tenant shall not at any time use or occupy or allow any
person to use or occupy the Premises, or do or permit anything to be done or
kept in the Premises, in any manner which (a) violates any certificate of
occupancy in force of the Premises or for the Building; (b) causes or is likely
to cause damage to the Building, the Premises or any equipment, facilities or
other systems therein; (c) constitutes a violation of any law, license, or
permit, or is considered a hazardous or toxic substance, material, or waste
under California or federal law; (d) violates a requirement or condition of the
standard fire insurance policy issued for office buildings in the City of
Xxxxxxx Hills; (e) impairs the character, reputation, image or appearance of the
Building as a first-class office building; (f) impairs the proper and economic
maintenance, operation and repair of the Building or its equipment, facilities
or systems; (g) constitutes a nuisance, annoyance or inconvenience to other
lessees or occupants of the Building, or interferes with or disrupts the use or
occupancy of any area of the Building (other than the Premises) by other lessees
or occupants; (h) interferes with the transmission or reception of microwave,
television, radio or other communications signals by antennae located on the
roof of the Building or elsewhere in the Building; (i) constitutes an unlawful,
immoral or objectionable occurrence or condition; or (j) results in repeated
demonstrations, bomb threats or other events which require evacuation of the
Building or otherwise disrupt the use, occupancy or quiet enjoyment of the
Building by other lessees and occupants. Tenant shall not use or allow another
person to use any part of the Premises for a restaurant or bar; the storage,
manufacture or sale of food, beverages, liquor, tobacco in any form or drugs
(except that Tenant may maintain vending machines for the use of its officers,
employees and invitees and except that Tenant's officers and employees may bring
food, beverages, tobacco and medicine onto the Premises for their personal and
lawful consumption); the business of photocopying or offset printing (but Tenant
may use part of the Premises for photocopying or offset printing in connection
with its own business); medical or dental offices or laboratories; a typing or
stenography business; a xxxxxx, beauty or manicure shop; a school or classroom;
the manufacture, retail sale or auction of merchandise, goods, or property of
any kind; cooking (except that Tenant may maintain one or more coffee or lunch
rooms and/or kitchens for the exclusive use of Tenant's officers, employees and
invitees); lodging or sleeping; or for immoral purposes. No noise, vibration,
smoke, gasses or odor shall be permitted to escape from the Premises.
6.03 COMPLIANCE BY TENANT. Tenant shall, at Tenant's expense, comply with all
laws that impose any obligation, order or duty on Landlord or Tenant, arising
from or related to (a) Tenant's use of the Premises; (b) the manner of conduct
of Tenant's business or operation of its installations, equipment or other
property therein; (c) any cause or condition created by or at the instance of
Tenant; or (d) breach of any Tenant's obligations hereunder; and Tenant shall
pay all the costs, expenses, fines, penalties and damages, including attorneys'
fees and costs, which may be imposed upon Landlord by reason of or arising out
of Tenant's failure to fully and promptly comply with and observe the provisions
of this Section. Where Tenant's compliance as required by this Section
necessitates actions by Tenant for which another provision of this Lease
requires Landlord's consent, Tenant shall obtain Landlord's consent pursuant to
such other provision before taking such actions.
ARTICLE 7
INSURANCE
7.01 USE OF PREMISES. Tenant shall not violate, or permit the violation of, any
condition, standard for use in California, imposed by any insurance policy
covering or relating to the Building, and shall not do, or permit anything to be
done, or keep or permit anything to be kept in the Promises (a) which might
subject Landlord to any liability or responsibility for personal injury or death
or property damage, or (b) which might increase any insurance rate with respect
to the Building over the rate which would otherwise then be in effect, or (c)
which might result in insurance companies of good standing refusing to insure
the Building in amounts satisfactory to Landlord, or (d) which might result in
the cancellation of any policy covering or relating to the Building or the
assertion of any defense by the insurer in whole or in part to claims under any
such policy.
7.02 CASUALTY INSURANCE. During the Lease Term, Landlord shall maintain All Risk
Coverage insurance, covering the Building and insuring the Building in the
amount of its full replacement value, with loss of rents coverage, and the
amount of any deductible shall be determined by Landlord but shall not exceed
that which is commercially reasonable for a first-class office building. During
the Lease Term, Tenant shall maintain, at Tenant's expense, All Risk Coverage
insurance covering Tenant's Property, and insuring Tenant's Property in the
amount of its full replacement value.
7.03 LIABILITY INSURANCE. During the Lease Term. Landlord shall maintain public
liability insurance covering the Building and insuring against all hazards and
risks customarily insured against by persons operating first-class office
buildings. Tenant, at its expense, shall maintain at all times during the
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Lease Term public liability insurance with respect to the Premises, their use
and occupancy by Tenant and the conduct or operation of business therein, with
combined single-limit coverage of not less than $2,000,000. Landlord may from
time to time increase the policy amount to be maintained by Tenant under this
Section as Landlord deems necessary in order to maintain adequate liability
coverage.
7.04 WAIVER OF SUBROGATION. Landlord and Tenant shall each secure an appropriate
clause in, or an endorsement upon, each insurance policy required by this
Article, pursuant to which the insurance company waives subrogation or permits
the insured, prior to any loss, to agree with a third party to waive any claim
it might have against said third party without invalidating the coverage under
the insurance policy. On Tenant's policies, the waiver of subrogation or
permission for waiver of any claim shall extend to Landlord, Landlord's
Affiliates and its and their agents and employees. On Landlord's policies, the
waiver of subrogation or permission for waiver of any claim shall extend to
Tenant and its agents and employees. Each party hereby releases the above-named
persons with respect to any claim (including a claim for negligence) which it
might otherwise have against them for injury, loss, damage or destruction
occurring during the Lease Term and covered by the policies required of Tenant
or Landlord under this Article.
7.05 POLICY REQUIREMENTS. Landlord, Landlord's Affiliates and its and their
agents and employees, and any lessor or mortgagee whose name and address shall
have been furnished to Tenant shall be designated as additional insured parties
on any insurance policy required by this Article. Tenant shall deliver to
Landlord fully paid-for policies or certificates of insurance for the insurance
coverage required by this Article, in form satisfactory to Landlord, issued by
the insurance company or its authorized agent, at least 20 days before the
Commencement Date. All policies shall provide that they cannot be cancelled or
modified unless Landlord, and any other additional insured party, are given at
least 30 days' prior written notice of such cancellation or modification.
7.06 PREMIUM INCREASE. If, by reason of any action or omission by Tenant in
default of any of its obligations under this Lease, or by reason of any Tenant
Work installed in the Premises, the premiums on Landlord's insurance on the
Building are higher than they otherwise would be, Tenant shall reimburse
Landlord, on demand, as Additional Charges, for that part of the premiums
attributable to the default by Tenant or the Tenant Work.
ARTICLE 8
ALTERATIONS
8.01 CONDITIONS. With Landlord's prior approval, which shall not be unreasonably
withheld. Tenant may from time to time, at its expense, make such alterations
("Alterations") in and to the Premises as Tenant may reasonably consider
necessary or as may be required by law, license, or permit for the conduct of
its business in the Premises, provided and upon the conditions that (a) the
Alterations do not affect the outside appearance of the Building or the
appearance of the common areas of the Building and are not visible from the
outside of the Building or from the common areas of the Building; (b) the
Alterations are non-structural and do not impair the strength of the Building;
(c) the Alterations are to the interior of the Premises and do not affect any
part of the Building outside of the Premises; (d) the Alterations do not affect
the proper functioning of the mechanical, electrical, sanitary and other service
systems of the Building, or increase the usage of such systems by Tenant; (e)
before proceeding with any Alteration, Tenant shall submit to Landlord, for
Landlord's approval, plans and specifications for the work to be done, and
Tenant shall not proceed with such work until it obtains Landlord's approval,
which shall not be unreasonably withheld; (f) Tenant shall pay to Landlord upon
demand the reasonable direct, out-of-pocket costs and expenses actually incurred
by Landlord in. reviewing Tenant's plans and specifications and inspecting the
Alterations to determine whether they are being performed in accordance with the
approved plans and specifications and in compliance with law, including, without
limitation, the fees of any architect, engineer or attorney employed by Landlord
for such purpose; (g) before proceeding with any Alteration which is reasonably
estimated to cost more than $10,000 (exclusive of the costs of items
constituting Tenant's Property, as defined in Section 9.02), Tenant shall
comply with the requirements of Section 8.04; (h) not less than 15 days, nor
more than 20 days prior to commencement of the Alterations, Tenant shall notify
Landlord of the work commencement date, in order that Landlord may post notices
of nonresponsibility about the Premises; (i) Tenant shall obtain and maintain
such insurance therefor as is acceptable to Landlord; and (j) Tenant shall fully
and promptly comply with and observe the rules and regulations of Landlord then
in force with respect to the making of Alterations.
8.02 PERFORMANCE. Tenant shall obtain all necessary governmental permits and
certificates, at Tenant's sole cost and expense, for the commencement and
prosecution of Alterations and for final approval of the Alterations upon
completion. If Landlord does not perform the Alterations as contractor. Tenant
shall retain at its sole expense a reputable contractor, selected from
Landlord's list of acceptable contractors and then independently approved by
Landlord for the specific Alterations, to perform the Alterations in compliance
with the permits and certificates and applicable law. Alterations shall be
diligently performed in a good and workmanlike manner, using new materials and
equipment at least equal in quality and class to the better of '(i) the original
installations of the Building, or (ii) the prevailing Building standards
established by Landlord. Any Alterations in the mechanical, electrical,
sanitary, heating, ventilating, air-conditioning or other systems of the
Building shall be performed only by contractors designated by Landlord.
Alterations shall be performed in a manner that does not interfere with, delay,
or impose additional expense on Landlord in the construction, maintenance,
repair or operation of the Building; and if any additional expense is incurred
by Landlord as a result of Alterations, Tenant shall reimburse Landlord for the
additional expense upon demand, as Additional Charges.
8.03 LIENS. Tenant shall keep the Premises and the Building free from any liens
arising out of any work performed. materials furnished, or obligations incurred
by or on behalf of Tenant. Landlord may require, at Landlord's sole option, that
Tenant shall provide to 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 in the Premises
which Tenant desires to make to insure Landlord against any liability for
mechanics' and materialmen's liens and to insure completion of the work.
8.04 SECURITY FOR PERFORMANCE. When required by Section 8.01 and/or Section
10.02, Tenant shall obtain and deliver to Landlord a performance bond and a
labor and materials payment bond for the benefit of Landlord, issued by a
corporate surety licensed to do business in California, each in an amount equal
to 125 percent of the estimated cost of the Alterations and in form satisfactory
to Landlord.
8.05 MISCELLANEOUS. Landlord reserves the right to perform the Alterations as
contractor. In that event, Tenant need not comply with Subsection 8.01(g) and
Landlord shall perform the Alterations for the price plus contractor's overhead
and profit set forth in the contractor's bid which Tenant would have accepted,
and Tenant shall pay to Landlord the amount of the Bid Price as and when the Bid
Price is required to be paid under the bid. Any bid obtained by Tenant and the
contractor making the bid shall satisfy the criteria specified in Sections 6.06
and 8.02. Tenant agrees that the review and approval by Landlord of Tenant's
plans and specifications for Alterations are solely for Landlord's benefit.
Landlord shall have no duty toward Tenant, nor shall Landlord be deemed to have
made any representation or warranty to Tenant with respect to the safety,
adequacy, correctness, efficiency or compliance with law of the plans and
specifications, the Alterations or their design, or any other matter regarding
the Alterations.
ARTICLE 9
LANDLORD'S AND TENANTS PROPERTY
9.01 FIXTURES. All fixtures, equipment (other than communications and office
equipment referred to in Section 9.02), improvements and appurtenances
("Fixtures") attached to or built into the Premises at the Commencement Date or
during the Lease Term, including Alterations, shall become and remain a part of
the Premises and the property of Landlord, regardless of whether the Fixtures
were installed by Tenant or at Tenant's expense, and shall not be removed by
Tenant.
9.02 TENANT'S PROPERTY. All communications and office equipment, whether or not
attached to or built into the Premises, which are installed in the Premises by
or for the account of Tenant, without expense to Landlord, and which can be
removed without substantial damage to the Premises or the
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Building, and all furniture, furnishings and other articles of movable personal
property owned by Tenant (or leased from any person except Landlord) and located
in the Premises shall remain the property of Tenant ("Tenant's Property") and
may be removed by Tenant at any time during the Lease Term if Tenant is not in
default under this Lease at the time of removal. If any of Tenant's Property is
installed, relocated, or removed, Tenant shall repair, at its sole expense, any
damage to the Premises or to the Building resulting from the installation,
relocation, or removal of Tenant's Property.
9.03 REMOVAL AT TERMINATION. Prior to the expiration of the Lease Term,
or immediately upon any earlier termination of this Lease, Tenant, at its
expense, shall remove from the Premises all of Tenant's Property (except such
items thereof which are the property of Landlord or as Landlord has expressly
permitted to remain, which shall become the property of Landlord), and Tenant
shall repair any damage to the Premises or the Building resulting from the
installation, relocation, or removal of Tenant's Property.
9.04 ABANDONMENT. Landlord, at its option, may consider items of Tenant's
Property that remain in the Premises after the expiration of the Lease Term, or
any earlier termination of this Lease, to have been abandoned, and in that event
such items may be retained by Landlord as its property or disposed of by
Landlord, without accountability, in such manner as Landlord shall determine,
and at Tenant's expense.
9.05 TAXES ON TENANT'S PROPERTY AND NON-STANDARD TENANT IMPROVEMENTS.
(a) TENANT'S PROPERTY. At least 10 days prior to delinquency, Tenant
shall pay all taxes levied or assessed upon Tenant's Property. If the assessed
value of the Building, the Premises, or property of Landlord is increased by the
inclusion of a value placed upon Tenant's Property, Tenant shall pay to
Landlord, upon demand as Additional Charges, the taxes levied against Landlord
on account of the included value of Tenant's Property.
(b) TENANT'S WORK. Tenant shall pay to Landlord, upon demand, as
Additional Charges, such portion of all real estate taxes levied or assessed
against Landlord which are attributable to that portion of the value of tenant
improvements installed in the Premises in excess of an amount equal to that of
Building standard improvements. For the purposes of calculating the amount
payable by Tenant pursuant to this Subsection 9.05(b), the value of tenant
improvements installed in the Premises shall be deemed to be equal to the cost
of such tenant improvements, including any fees paid to Landlord in connection
therewith, and including any Alterations performed pursuant to Section 8.01.
ARTICLE 10
REPAIRS AND MAINTENANCE
10.01 LANDLORD'S OBLIGATIONS. Landlord shall keep and maintain the Building's
exterior walls, glass, roof and foundation and the public portions of the
Building and the Building systems and facilities serving the Premises and the
Base Building Work (as defined in the Work Letter) located in the Premises and,
if Tenant constructed the tenant improvements under the Work Letter, the
improvements and fixtures described in Paragraphs 3.3. 3.4 and 3.5 of the Work
Letter, in proper working order, condition and repair, unless provided otherwise
herein. However, Landlord shall have no obligation to perform any repairs unless
Landlord has knowledge of the need for such repairs or until Tenant has notified
Landlord in writing of the need for such repairs, describing the needed repairs
in reasonable detail.
10.02 TENANT'S OBLIGATIONS. Tenant shall, at its sole cost and expense
throughout the Lease Term, take good care of the Premises, the Fixtures and
Tenant's Property except as provided otherwise in Sections 10.01 and 13.01.
Tenant shall be responsible for all repairs, maintenance and replacement of
doors, interior glass, and wall and floor coverings in the Premises and
improvements in the Premises described as Tenant's Work in the Work Letter
(excluding, if Tenant constructed the tenant improvements, the HVAC and life
safety system described in Paragraphs 3.3, 3.4 and 3.5 of the Work Letter, and
excluding the extent to which such responsibility is covered by insurance
proceeds received by Landlord under policies held by Landlord in accordance with
Section 7.02) and for the repair and maintenance of all water fountains, sinks
and sanitary and electrical fixtures and equipment in the Premises.
Tenant shall be responsible for all maintenance and repairs, interior and
exterior, structural and nonstructural, ordinary and extraordinary, of the
Premises, the Building and the Building's facilities and systems, made
necessary, in whole or in part, by (a) the performance or existence of Tenant's
Work (as defined in the Work Letter) or Alterations; (b) the installation, use
or operation of Tenant's Property in the Premises; (c) the moving of Tenant's
Property in or out of the Building; or (d) any act, omission, misuse or neglect
by Tenant or its officers, partners, employees, agents, contractors or invitees.
All Tenant repair work shall be subject to all of the provisions of Article 8
regarding Alterations. Landlord shall perform or cause to be performed, at
Tenant's expense, any other repairs of the Building and its facilities and
systems for which Tenant is responsible. Tenant shall reimburse Landlord on
demand, as Additional Charges, for the costs of such repairs.
10.03 EXCULPATION OF LANDLORD FOR REPAIRS. Except as otherwise expressly
provided in this Lease, Landlord shall have no liability to Tenant, and Tenant's
covenants and obligations under this Lease shall not be reduced or abated in any
manner whatsoever by reason of any inconvenience, annoyance, interruption or
injury to business arising from Landlord making any maintenance, repairs,
alterations, additions or improvements in or to any portion of the Building or
the Premises or in or to the fixtures, equipment or appurtenances of the
Building or the Premises, which Landlord is required or permitted to make by
this Lease, or which are required by law, or which Landlord deems appropriate,
excepting any direct (but not consequential) damages to the extent caused by the
negligence or willful misconduct of Landlord or its employees. Landlord shall
have the right to erect scaffolding and barricades in the Premises and the
Building for purposes of such repairs, provided that such structures do not
unreasonably impair access to the Premises. Tenant waives any rights it may have
under California Civil Code Sections 1941 and 1942, and any other provisions of
law now or hereafter in force, regarding the duties of a lessor to repair leased
premises or the rights of lessees to make repairs if the lessor fails to do so.
10.04 NOTICES. Tenant shall give prompt notice to Landlord of (a) any occurrence
in or about the Premises for which Landlord might be liable; (b) any fire or
other casualty in the Premises; (c) any damage to or defect in the Premises,
including the Fixtures, for the repair of which Landlord might be responsible;
and (d) any damage to or defect in any part or appurtenance of the Building's
sanitary, electrical, heating, ventilating, air-conditioning, elevator or other
systems located in or passing through the Premises.
ARTICLE 11
UTILITIES AND SERVICES
11.01 BASIC UTILITIES AND SERVICES. Landlord shall furnish to the Premises
during "Business Hours," which are the periods from 8:00 a.m. to 6:00 p.m.
Monday through Friday and 9:00 a.m. to 2:00 p.m. Saturday, except for New Year's
Day, Presidents' Day, Memorial Day, Independence Day, Labor Day, Thanksgiving,
Christmas, and such other holidays as are generally observed in the City of
Xxxxxxx Hills by the closing of businesses, and subject to the rules and
regulations from time to time established by Landlord, (a) heating, air
conditioning and ventilation in amounts reasonably required for the use and
occupancy of the Premises; (b) freight and passenger elevator service; (c)
electricity in amounts required for normal lighting by the Building's standard
overhead fluorescent fixtures, and for normal office machines; and (d) hot and
cold water in amounts required for normal lavatory, coffee room and drinking
purposes. Subject to the provisions of Section 11.02 regarding charges for
additional use, passenger elevator service, electricity and water will be
available 24 hours a day, every day of the year. Landlord shall provide heating,
air conditioning, ventilation, and freight elevator service at other than
Business Hours by arrangement with Tenant, provided that Tenant is not then in
default of this Lease and provided that Tenant pays Landlord's usual charges for
such overtime use. Landlord shall provide janitorial service Monday through
Friday, except for the holidays listed above, generally consistent with that
furnished in other first-class office buildings in Xxxxxxx Hills, and window
washing at intervals determined by Landlord. Tenant shall neither contract for,
nor employ any labor in connection with, the maintenance, cleaning or other
servicing of the Premises without the prior written consent of Landlord.
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11.02 ADDITIONAL TENANT USE. At the Commencement Date, and from time to time
thereafter, Landlord may impose a reasonable charge, as Additional Charges, and
establish reasonable rules and regulations for (a) the use by Tenant of heating,
air conditioning, ventilation, or freight elevators at any time other than
during Business Hours; (b) the use by Tenant of heating, air conditioning,
ventilation, water or electricity in amounts exceeding the amounts Landlord has
undertaken to provide in Section 11.01; and (c) the use of any additional or
unusual janitorial or cleaning services required because of any non-building
standard improvements in the Premises (including glass or fragile surfaces), the
carelessness of Tenant, the nature of Tenant's business (including the operation
of Tenant's business (other than during Business Hours), or for the removal of
any refuse and rubbish unusual in kind or amount. If Tenant consumes excess
electricity. Landlord, or its electrical consultant, may install, at Tenant's
expense, a meter to measure the electricity consumed on the Premises.
11.03 TEMPERATURE MAINTENANCE. Landlord makes no representation with respect to
the adequacy or fitness of the air-conditioning or ventilation equipment in the
Building to maintain temperatures which may be required for, or because of, any
condition other than normal office equipment, normal electrical loads, or normal
occupancy of the Premises, and Landlord shall have no liability for loss or
damage in connection therewith.
11.04 EXCULPATION OF LANDLORD FOR UTILITIES. Landlord shall not be liable for
any failure to furnish any services or utilities when such failure is caused by
acts of God, war, civil disobedience, vandalism, accidents, breakage, repairs,
strikes, lockouts, other labor disputes, alterations or improvements to the
Premises or the Building, the inability to obtain an adequate supply of fuel,
water, electricity, labor or other supplies, or for any other condition beyond
Landlord's reasonable control, including, without limitation, any governmental
energy conservation program, and Tenant shall not be entitled to any damages nor
shall such failure xxxxx or suspend Tenant's obligation to pay the Rents or
constitute or be construed as a constructive or other eviction of Tenant.
Neither Landlord's actions nor its failure to act shall entitle Tenant to any
damages, xxxxx or suspend Tenant's obligation to pay the Rents, or constitute or
be construed as a constructive or other eviction of Tenant.
11.05 SECURITY. Landlord shall institute reasonable security measures for the
Building, but Landlord makes no warranty, representation, or guaranty that such
measures will adequately protect persons or property from loss or injury.
11.06 ACCESS. Landlord, the cleaning contractor and their employees shall have
access to the Premises after 5:30 p.m. and before 8:00 a.m. and shall have the
right to use, without charge therefor, all light, power and water in the
Premises reasonably required to clean the Premises.
11.07 DIRECTORY LISTING. Landlord, at Tenant's request, shall maintain listings
of the name of Tenant (and the names of any of Tenant's officers and employees)
on the Building directory located in the ground floor lobby, provided that the
names so listed shall not use more than two lines of such directory for every
1,000 square feet of Rentable Area of the Premises (rounded to the nearest full
line). The reasonable charge of Landlord for any changes in such listings shall
be paid by Tenant to Landlord as Additional Charges.
ARTICLE 12
RIGHTS OF LANDLORD
12.01 RESERVATION FROM PREMISES. Except for the space within the inside surfaces
of all walls, hung ceilings, floors, windows and doors bounding the Premises,
Landlord reserves from the Premises all of the Building, including, without
limitation, the roof, exterior Buildings walls, core corridor walls and doors,
any terraces or roofs adjacent to the Premises, the space between hung ceilings
and the slab above and any space in or adjacent to the Premises used for shafts,
stacks, pipes, conduits, fan rooms, ducts, electric, telephonic or other
utilities, sinks or other Building facilities, and the use thereof, as well as
access thereto through the Premises for the purposes of operation, maintenance,
decoration and repair of the Premises or the Building. Landlord reserves the
right, and Tenant shall permit Landlord, to install, erect, use and maintain
pipes, ducts and conduits in and through the Premises; provided, that Landlord
shall disguise, conceal or camouflage the pipes, ducts and conduits.
12.02 ENTRY BY LANDLORD. Landlord and its agents shall have the right to enter
or pass through the Premises at reasonable times (a) to examine the Premises and
to show them to actual and prospective lenders, mortgagees, purchasers, and
lessees of the Building and (b) to make repairs, alterations, additions and
improvements in the Premises, the Building or Building facilities and equipment.
Any entry by Landlord shall be made on reasonable advance oral notice, except in
emergency situations. In exercising its rights under this Section, Landlord
shall take reasonable mleasures to avoid unnecessary interference with Tenant's
use and occupancy of the Premises. Landlord shall have a pass key to the
Premises and shall be allowed to bring materials and equipment into the Premises
as required in connection with repairs, alterations, additions and improvements,
without any liability to Tenant and without any reduction of Tenant's covenants
and obligations, and may do so (but shall not be obligated to do so) on an
overtime basis.
12.03 TEMPORARY OBSTRUCTIONS OF LIGHT OR VIEW; CLOSURES. If at any time any
windows of the Premises are temporarily darkened or the light or view therefrom
obstructed by reason of any repairs, improvements, maintenance or cleaning in or
about the Building, or if any part of the Building, other than the Premises, is
temporarily or permanently closed or inoperable, the same shall be without
liability to Landlord and without any reduction or diminution of Tenant's
obligations under this Lease.
12.04 EXHIBITING THE PREMISES. During a period of 18 months prior to the
expiration of the Lease Term, Landlord and its agents may exhibit the Premises
to prospective tenants during normal business hours, on reasonable advance
written or oral notice to Tenant.
12.05 ENTRY PRIOR TO END OF TERM. If, during the last month of the Lease Term,
Tenant has removed all or substantially all of Tenant's Property from the
Premises, Landlord may, without notice to Tenant, immediately enter the Premises
and alter, renovate and decorate the same, without liability to Tenant and
without reducing or otherwise affecting Tenant's covenants and obligations
hereunder.
12.06 BUILDING NAME AND ADDRESS. Landlord reserves the right at any time,
without notice or liability to Tenant, to change the Building's name or address.
12.07 ALTERATIONS OF BUILDING. Landlord reserves the right, at any time, without
incurring any liability to Tenant therefor and without affecting or reducing any
of Tenant's covenants and obligations hereunder, to make such changes,
alterations, additions and improvements in or to the Building and its systems
and equipment, as well as in or to street entrances, doors, halls, passages,
elevators, escalators and stairways, and other public parts of the Building, as
Landlord shall deem necessary or desirable. However, Landlord shall not
materially interfere with Tenant's use of the Premises.
12.08 OTHER RIGHTS. The enumeration of rights of Landlord in this Article is
(not all-inclusive, and shall not be construed to preclude or limit other rights
reserved to Landlord by this Lease or by law.
ARTICLE 13
DAMAGE OR DESTRUCTION
13.01 ABATEMENT. If the Premises are damaged by fire or other perils covered by
extended coverage insurance, but subject to Landlord's rights under Section
13.02, Landlord agrees to forthwith repair same to the extent of insurance
proceeds actually received by Landlord, and this Lease shall remain in full
force and effect, except that Tenant shall be entitled to a proportionate
reduction of the Basic Rent from the date of damage and while such repairs are
being made, such proportionate reduction to be based upon the extent to which
the damage and making of such repairs shall materially interfere with the
conduct of Tenant's business within the Premises. If the damage is due to the
fault or neglect of Tenant or any officer, agent, employee, invitee, or
principal of Tenant, there shall be no such abatement. Tenant, for all purposes
under this Lease, hereby waives the provisions of California Civil Code xx.xx.
1932 and 1933 and those of any law of similar import now or hereafter enacted.
13.02 RECONSTRUCTION. If the Premises are damaged by fire or other perils
covered by fire and extended coverage insurance and such is not the result of
the act or omission of Tenant or any officer, agent, employee, guest, invitee,
or principal of Tenant, then Landlord shall forthwith repair the same, provided
the extent of the destruction be less than ten percent (10%) of the then full
replacement cost of the Promises. If such
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destruction of the Premises is to an extent of ten percent (10%) or more of the
full replacement cost, then Landlord shall have the option: (a) to repair or
restore such damage, in which case this Lease shall continue in full force and
effect, but the Basic Rent shall be proportionately reduced as set forth in
Section 13.01; or (b) to give notice to Tenant at any time within sixty (60)
days after such damage, in which case this Lease shall terminate as of the date
specified in such notice, which date shall be no more than thirty (30) days
after the giving of such notice, and all interest of Tenant in the Premises
shall terminate on said date, and all Rents shall be paid up to the date of said
such termination.
ARTICLE 14
EMINENT DOMAIN
14.01 TAKING. If more than twenty-five percent (25%) of the Premises is taken or
appropriated by any public or quasi-public authority under the power of eminent
domain, either party hereto shall have the right, at its option, within sixty
(60) days after said taking, to terminate this Lease upon thirty (30) days
written notice. If any portion of the Premises is taken and neither party elects
to terminate as herein provided, then the Basic Rent thereafter to be paid shall
be equitably reduced. If any material part of the Building other than the
Premises is taken or appropriated, then within sixty (60) days of said taking,
Landlord may terminate this Lease upon written notice to Tenant. If any taking
or appropriation whatsoever occurs, then Landlord shall be entitled to any and
all awards and/or settlements which may be given, and Tenant shall have no claim
against Landlord for the value of any unexpired term of this Lease or any
portion of Tenant's leasehold estate.
ARTICLE 15
SURRENDER OF PREMISES
15.01 SURRENDER. On the last day of the Lease Term, or upon any earlier
termination of this Lease, or upon any re-entry by Landlord upon the Premises.
Tenant shall quit and surrender the Premises to Landlord "broom-clean" and in
good order, condition and repair, ordinary wear and tear excepted and also
excepting any damage or destruction caused by fire or other casualty which
Tenant is not obligated by this Lease to repair. Upon expiration of the Lease
Term or earlier termination of this Lease, all of Tenant's right, title and
interest in the Premises or the Building, including any possessory interest,
shall cease.
15.02 ACCEPTANCE OF SURRENDER. Prior to expiration of the Lease Term or earlier
termination of this Lease, no act or thing done by Landlord or its agents shall
be deemed an acceptance of surrender of the Premises, and no agreement to accept
such surrender shall be valid unless in writing and signed by Landlord.
15.03 NO MERGER. The surrender of this Lease by Tenant or the termination of
this Lease prior to expiration of the Lease Term shall not constitute a merger,
and, at the option of Landlord, shall operate as an assignment to Landlord of
any subleases of the Premises.
15.04 NO HOLDING OVER. There shall be no holding over by Tenant after expiration
of the Lease Term, and the failure by Tenant to deliver possession of the
Premises to Landlord shall be an unlawful detainer.
ARTICLE 16
DEFAULT BY TENANT
16.01 DEFAULT. The occurrence of any of the following shall constitute a
material default and breach of this Lease by Tenant:
(a) Tenant's failure to pay Basic Rent or Additional Charges when due;
(b) Tenant's failure to take possession of the Premises within 15 days
after tendered by Landlord, or Tenant's abandonment or vacation of the Premises;
(c) Tenant's failure to observe and perform any other provisions of this
Lease to be observed or performed by Tenant, where such failure continues for 15
days after written notice thereof by Landlord to Tenant; provided, however, that
if the nature of such failure is such that it cannot reasonably be cured within
such 15-day period, Tenant shall not be deemed to be in default under this
Subsection 16.01(c) if Tenant commences to cure such failure within that period
and thereafter diligently proceeds to completion;
(d) Tenant's making any general assignment for the benefit of creditors;
the filing by or against Tenant of a petition to have Tenant adjudged a bankrupt
or of a petition for reorganization or arrangement under any law relating to
bankruptcy (unless, in the case of a petition filed against Tenant, the same is
dismissed within 60 days); the appointment of a trustee or 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 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 within 30 days;
(e) Tenant's failure to observe or perform according to the provisions
of Article 8 or Section 6.03 where such failure continues for more than 24 hours
after notice from Landlord;
(f) The committing of waste on the Premises; or
(g) The hypothecation or assignment of this Lease or subletting of the
Premises, or attempts at such actions, in violation of Article 19.
(h) Tenant's failure to supply any estoppel certificate required of
Tenant under this Lease.
16.02 TERMINATION OF LEASE. If any such default by Tenant occurs, then in
addition to any other remedies available to Landlord at law or in equity,
Landlord shall have the immediate option to terminate this Lease and all rights
of Tenant hereunder by giving Tenant a notice of termination. It Landlord so
terminates this Lease, then Landlord may recover from Tenant:
(a) The worth at the time of award of any unpaid rent which had been
earned at the time of such termination; plus
(b) The worth at the time of award of the amount by which the unpaid
rent which would have been earned after termination until the time of award
exceeds the amount of such rental loss Tenant proves could have been reasonably
avoided; plus
(c) The worth at the time of award of the amount by which the unpaid
rent for the balance of the terms after the time of award exceeds the amount of
such rental loss that Tenant proves could be reasonably avoided; plus
(d) Any other amount necessary to compensate Landlord for the detriment
proximately caused by Tenant's failure to perform its obligations under this
Lease or which in the ordinary course of things would be likely to result
therefrom; plus
(e) Such other amounts in addition to or in lieu of the foregoing as may
be permitted from time to time by applicable California law.
As used in subparagraphs (a) and (b) above, the "worth at the time of award" is
computed by allowing interest from the date of termination until the time of
award at the maximum rate allowable under state or federal law, or, if no such
maximum rate applies, at the rate of 18 percent per annum. As used in
subparagraph (c) above, the "worth at the time of award" is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus one percent (1%).
16.03 REENTRY BY LANDLORD. If any such default by Tenant occurs, Landlord shall
also have the right, with or without terminating this Lease, to reenter the
Premises and remove all persons and property; the removed property may be stored
in a public warehouse or elsewhere at the cost of and for the account of Tenant.
16.04 ELECTION TO TERMINATE. No reentry or taking possession of the Premises by
Landlord pursuant to Section 16.03 shall be construed as an election to
terminate this Lease unless a written notice of such intention be given to
Tenant or unless the termination thereof be decreed by a court of competent
jurisdiction.
16.05 REDEMPTION RIGHTS. Tenant, on behalf of itself and any and all persons
claiming through or under Tenant, hereby waives and surrenders all right and
privilege which it might have, under any law, to redeem the Premises or to have
a continuance of this Lease after being dispossessed or ejected
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from the Premises by process of law or under the terms of this Lease or after
the termination of this Lease.
16.06 APPLICATION OF RENT PAYMENTS. Tenant waives all rights that it may have
under present or future law to designate the items to which any payments made by
Tenant are to be credited. Tenant agrees that Landlord may apply any payments
made by Tenant to such items as Landlord sees fit, irrespective of any
designation or request by Tenant as to the items to which such payments should
be credited.
16.07 COUNTERCLAIMS. Tenant shall not interpose any counterclaim of any kind in
any action or proceeding commenced by Landlord to recover possession of the
Premises except those that would be waived by law due to Tenant's failure to so
interpose. Tenant may assert any counterclaim in a separate action or
proceeding.
16.08 PERFORMANCE BY LANDLORD. If Tenant shall default in the performance of any
of Tenant's obligations under this Lease, and the default continues for 15 days
after Landlord gives Tenant notice of the default, and Tenant has not commenced
diligently to cure such default, Landlord, without thereby waiving or curing
such default, may (but shall not be obligated to) perform the defaulted
obligation for the account and at the expense of Tenant. Landlord may perform
Tenant's defaulted obligation without notice in a case of emergency, also at
Tenant's sole cost and expense.
16.09 PAYMENT OF LANDLORD'S EXPENSE. Any expenses incurred by Landlord in
connection with any performance by it for the account of Tenant under Section
16.08, and all costs and expenses, including reasonable attorneys' fees (whether
or not legal proceedings are instituted), involved in collecting Rents or
enforcing the obligations of Tenant under this Lease, including the cost and
expense of instituting and prosecuting legal proceedings or recovering
possession of the Premises after default by Tenant or upon expiration or sooner
termination of this Lease, shall be due and payable by Tenant as Additional
Charges.
16.10 POST-JUDGMENT INTEREST. The amount of any judgment obtained by Landlord
against Tenant in any legal proceeding arising out of a default by Tenant under
this Lease shall bear interest until paid at the maximum rate allowed by law,
or, if no such maximum rate prevails, at the rate of 18 percent per annum.
Notwithstanding California Civil Code ss. 3287 to the contrary, if any damages
were certain or ascertainable by calculation, then such interest shall accrue
from the day that the right to such damages vested in Landlord, and if any claim
is unliquidated, such interest shall accrue from the day such claim arose.
16.11 NO WAIVERS. The failure of Landlord to insist, in any one or more
instances, upon the strict performance by Tenant of any of Tenant's obligations
under this Lease, or to exercise any right or remedy given Landlord upon a
default by Tenant, shall not be construed as a waiver or relinquishment for the
future, and the obligations of Tenant and Landlord's rights and remedies upon a
default shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. The receipt by Landlord of Rents with
knowledge of a breach by Tenant of any obligaiton of this Lease shall not be
deemed a waiver of such breach.
16.12 REMEDIES NOT EXCLUSIVE. The rights and remedies provided to Landlord in
this Article are not exclusive, and Landlord may exercise any other right or
remedy it may have pursuant to this Lease, at law or in equity.
16.13 QUARTERLY PAYMENTS. Landlord reserves the right to collect, quarterly in
advance, any and all amounts owed by Tenant under this Lease after Tenant has
defaulted hereunder, as defined in this Article and notwithstanding the
subsequent cure of any or all of such defaults, three or more times in any
consecutive twelve month period. Tenant shall begin such payments on the first
day of the calendar month immediately following notice from Landlord of the
exercise of such right. Tenant shall pay all intra-quarterly upward adjustments
within ten days of notice of same from Landlord, and Landlord shall credit
Tenant's next quarterly payment with all intra-quarterly downward adjustments.
Such right may be exercised by Landlord in Landlord's absolute discretion, and
shall not be construed as an obligation of Landlord.
ARTICLE 17
SUBORDINATION AND ATTORNMENT
17.01 OPERATION. Upon request of Landlord, Tenant shall subordinate, in writing,
its rights hereunder to the lien of any mortgage or deed of trust, given to any
person, now or hereafter in force against the Building or the Premises, and to
all advances made or hereafter to be made upon the security thereof. If any
proceedings are brought for foreclosure, or if the power of sale under any
mortgage or deed of trust made by Landlord covering the Building or the Premises
is exercised, then Tenant shall attorn to the purchaser upon any such
foreclosure or sale and recognize such purchaser as Landlord under this Lease.
The provisions of this Article 17 to the contrary notwithstanding, and so long
as Tenant is not in default hereunder, this Lease shall remain in full force and
effect for the full term hereof.
ARTICLE 18
QUIET ENJOYMENT
18.01 QUIET ENJOYMENT. So long as Tenant timely pays all the Rents and performs
all of Tenant's other obligations hereunder within the time periods permitted
under this Lease, Tenant shall peaceably and quietly have, hold and enjoy the
Premises during the Lease Term without hindrance, ejection or molestation by
Landlord or any person lawfully claiming through or under Landlord, subject,
nevertheless, to the provisions of this Lease and to any mortgages. This
covenant is a covenant running with the land, and is not a personal covenant of
Landlord.
ARTICLE 19
ASSIGNMENTS AND SUBLEASES
19.01 CONSENT. Tenant shall not assign or sublease the Premises without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld, except that Landlord shall have the unfettered right to withhold such
approval of any proposed assignee or sublessee (the "Proposed Assignee"), (a) on
the basis of the Proposed Assignee's character and/or reputation, (b) if the
Proposed Assignee has negotiated with Landlord or Landlord's agent for a tenancy
in the Building within the previous six months, (c) if the Proposed Assignee (or
an affiliate thereof) is then a tenant of the Building, or (d) if the Proposed
Assignee's proposed use of the Premises is not consistent with the Permitted
Use. If the Proposed Assignee is approved by Landlord, any amounts collected by
Tenant in excess of all Rents otherwise owed under this Lease (but not including
amounts equal to the fair market value of personal property sold or leased by
Tenant to the Proposed Assignee in connection with the assignment/sublease of
the Premises) shall be paid to Landlord as Additional Charges. Landlord reserves
the right to collect rent directly from the Proposed Assignee, and such
collection shall not waive any obligation of Tenant under this Lease. No
assignment or sublease of this Lease shall serve to release Tenant from any
obligation under this Lease.
19.02 OFFER TO LANDLORD. Notwithstanding Section 19.01 to the contrary, if
Tenant desires to assign or sublease the Premises, Tenant shall first offer the
Premises to Landlord under terms and conditions at least as favorable to
Landlord as those that would be offered to the Proposed Assignee. Landlord shall
have not less than 60 days in which to accept said offer. If Landlord accepts
said offer, Landlord and Tenant shall promptly execute documentation, acceptable
to Landlord, to effect an assignment/sublease of the Premises to Landlord under
said terms and conditions. If Landlord does not accept said offer, then Tenant
shall have the rights described in Section 19.01. Any proposal made to a
Proposed Assignee that is (a) materially more favorable to the Proposed Assignee
than that offered Landlord, or (b) that is accepted by the Proposed Assignee
more than 60 days after the earlier of (i) Landlord's rejection of the offer to
Landlord, and (ii) Landlord's 60-day acceptance period described above, (c)
shall be null and void and shall require a new offer to Landlord under the terms
set forth in this Section 19.02.
19.03 CONSTRUCTIVE ASSIGNMENT. Any dissolution of Tenant, and any transaction or
group of transactions that causes one or more persons, not previously
controlling Tenant, to control Tenant (either alone or with other controlling
persons), is hereby deemed to be an assignment of this Lease, and shall be
subject to the terms of this Article 19. In the case of a partnership,
controlling persons are deemed to be each general partner thereof, and in the
case of a corporation.
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controlling persons are deemed to be each shareholder of the corporation owning
shares sufficient in number to impose said shareholder's will over that of other
shareholders of the corporation.
ARTICLE 20
NOTICES
20.01 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. All notices and demands shall be sufficient if sent by United States
Mail, postage prepaid, addressed to the party to be notified at its address at
the Building (except that prior to the Commencement Date, Tenant's address for
such purposes shall be as set forth in Section 1.11), or to such other person or
place as such party may from time to time designate by notice to the other.
ARTICLE 21
ESTOPPEL CERTIFICATES
21.01 ESTOPPEL CERTIFICATES. Within 10 days after a request by Landlord or
Tenant, the other party shall execute an estoppel certificate, in form
satisfactory to the requesting party, and shall deliver such certificate to whom
the requesting party or any mortgagee shall direct, which (a) certifies that
this Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified, and
slating the modifications); (b) states the expiration date of the Lease Term and
that there are no agreements to extend or renew the Lease Term or to permit any
holding over (or if there are any such agreements, describes them and specifies
the periods of extension or renewal); (c) certifies the dates through which
Rents have been paid; (d) states whether or not, to the knowledge and belief of
the certifying party, the requesting party is in default in performance of any
of its obligations under this Lease, and specifies each default of which it has
knowledge; (e) states whether or not, to the knowledge and belief of Tenant, any
event has occurred which, with the giving of notice or passage of time, or both,
would constitute a default by Landlord and, if such an event has occurred,
specifies each such event; (f) states whether Tenant is entitled to any credits,
offsets, defenses or deductions against payment of Rents, and, if so, describes
them; and (g) states such other information as Landlord and/or a mortgagee shall
reasonably request.
ARTICLE 22
RELOCATION OF PREMISES
22.01 BUILDING PLANNING. If Landlord requires the Premises for use in
conjunction with another suite or for any other reasons connected with the
Building planning program, Landlord, upon notifying Tenant in writing, shall
have the right to move Tenant to another space in the Building, at Landlord's
sole cost and expense, and the terms and conditions of this Lease shall remain
in full force and effect, except that the Premises shall be in a new location.
If the new space does not meet with Tenant's reasonable approval, however,
Tenant may cancel this Lease upon giving Landlord thirty (30) days' notice
within ten (10) days after receipt of Landlord's notification. If Tenant refuses
to permit Landlord to so move Tenant to such new location, then Landlord shall
have the right to cancel and terminate this Lease effective immediately.
ARTICLE 23
BROKER
23.01 BROKER. Tenant covenants, warrants and represents that no broker except
Tenant's Broker was instrumental in bringing about or consummating this Lease
and that Tenant had no conversations or negotiations with any broker except
Tenant's Broker concerning the leasing of the Premises. Tenant agrees to
indemnify, defend and hold Landlord harmless against and from any claims for any
brokerage commissions or finder's fees by persons other than Tenant's Broker,
and all costs, expenses and liabilities incurred in connection with such claims,
including attorneys' fees.
ARTICLE 24
EXCULPATION AND INDEMNIFICATION
24.01 EXCULPATION. Neither Landlord, nor Landlord's Affiliates, nor any partner,
director, officer, agent or employee of Landlord or Landlord's Affiliates, nor
mortgagee or any director, officer, other agent or employee of such mortgagee,
shall be liable to Tenant or its partners, directors, officers, contractors,
agents, employees, invitees, sublessees or licensees (collectively, "Tenant's
Agents"), for any loss, injury or damage to Tenant or to any other person, or to
its or their property, irrespective of the cause of such injury, damage or loss,
except to the extent caused by or resulting from the negligence or willful
misconduct of Landlord or its employees in the operation or maintenance of the
Premises or the Building. Further, neither Landlord, nor Landlord's Affiliates,
nor any partner, director, officer, agent or employee of Landlord or Landlord's
Affiliates, nor mortgagee or any director, officer, other agent or employee of
such mortgagee, shall be liable (a) for any such damage caused by other lessees
or persons in or about the Building, or caused by operations in construction of
any private, public or quasi-public work, or (b) for consequential damages
arising out of any loss of the use of the Premises or any equipment or
facilities therein by Tenant or any person claiming through or under Tenant.
24.02 INDEMNITY. Tenant shall defend, indemnify and hold harmless Landlord,
Landlord's Affiliates, all mortgagees, and its and their respective partners,
directors, officers, agents and employees from and against any and all direct
and/or consequential claims, demands, liability, loss, damage, costs and
expenses arising from or in connection with: (a) the conduct or management of
the Premises or of Tenant's business therein, or any work or act whatsoever
done, or any condition created by Tenant or Tenant's Agents in or about the
Premises or the Building during the Lease Term or during the period of time, if
any, prior to the Commencement Date that Tenant may have been given access to
the Premises; (b) any act, omission or negligence of Tenant or Tenant's Agents;
(c) any accident, injury or damage whatsoever (except to the extent caused by
Landlord's negligence or willful misconduct) occurring in or about the Premises;
and (d) any breach or default by Tenant in the full and prompt payment and
performance of Tenant's obligations under this Lease; together with all costs,
expenses and liabilities incurred in connection with each claim, action or
proceeding brought thereon, including, without limitation, all reasonable
attorneys' fees and expenses. Upon Landlord's demand before or after the
expiration or earlier termination of the Lease Term, Tenant shall perform such
acts, and shall execute such agreements, as are reasonably necessary to assure
Landlord (and such other persons as Landlord deems necessary) of Tenant's
obligation to abide by the provisions of this Section 24.02 and Article 15. If
an action or proceeding is brought against any of the persons indemnified under
this Section for a matter covered by this indemnity, Tenant, upon notice from
the indemnified person, shall defend such action or proceeding by counsel
reasonably satisfactory to Landlord and the indemnified person.
24.03 SATISFACTION OF REMEDIES. Neither Landlord, nor Landlord's Affiliates, nor
any successor to Landlord's interest, including any Successor Landlord, shall be
personally liable for the performance of Landlord's obligations under this
Lease. Tenant shall took only to Landlord's estate and property in the Land and
the Building (or the proceeds thereof), and to no other property or assets of
Landlord or Landlord's Affiliates, for the satisfaction of Tenant's remedies
under this Lease, or for the collection of a judgment (or other judicial
process) requiring the payment of money by Landlord or Landlord's Affiliates.
The covenants and agreements contained in this Section 24.03 shall be
enforceable by Landlord, Landlord's Affiliates, and its and their respective
successors and assigns.
24.04 TRANSFERS OF LANDLORD'S INTEREST. The covenants and agreements of Landlord
under this Lease shall not be binding on any person at any time holding the
interest of Landlord (including the original named Landlord) subsequent to the
transfer of that person's interest in the Building. In the event of such a
transfer, the covenants and agreements of Landlord shall thereafter be binding
upon the transferee of Landlord's interest. If Landlord's interest in the
Building or the Land shall be sold, assigned or otherwise transferred to any
person, including any transfer upon the exercise of any remedy provided in a
mortgage or at law or equity, that person, and each person thereafter succeeding
to its interest in the Building or the Land, shall not be (a) liable for any act
or omission of Landlord under this Lease occurring prior to such sale,
assignment or other transfer; (b) subject to any offset, defense or counterclaim
accruing prior to such sale, assignment or other transfer; (c) bound by any
payment prior to such sale, assignment or other transfer of Basic Rent or
Additional Charges for more than one month in advance; and (d) liable for the
return of the Security Deposit except to the extent that the Security Deposit
has been paid over to such person.
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ARTICLE 25
PARKING
25.01 TENANT'S PARKING. Tenant shall have the right to use Tenant's Parking for
the unreserved and unassigned parking of standard size or smaller automobiles
used by Tenant, its officers and employees. Such right is subject to (a)
Tenant's notice to Landlord, on or before the first anniversary of the Rent
Commencement Date, of Tenant's election to so use a number of parking spaces up
to that amount allotted to Tenant in Section 1.09, and (b) Tenant's timely
payment to Landlord or the operator of the Building parking garage of the
prevailing fee for parking charged to lessees and occupants of the Building. To
the extent that Tenant fails to so elect or to so pay, Landlord shall not be
obligated to allot parking spaces to Tenant as Tenant's Parking. Landlord may
designate the location of Tenant's Parking, and may from time to time relocate
all or any portion of Tenant's Parking. The use of Tenant's Parking shall be
governed by the rules and regulations adopted from time to time by Landlord or
the operator of the parking garage. Tenant's business visitors shall have the
right to park in the parking garage only to the extent that parking space is
available and subject to the payment of the prevailing fee for parking charged
to visitors to the Building.
ARTICLE 26
MISCELLANEOUS
26.01 MEMORANDUM OF LEASE. Tenant shall not record this Lease. However, at the
request of Landlord, Tenant shall promptly execute, acknowledge and deliver to
Landlord a memorandum of lease with respect to this Lease sufficient for
recording.
26.02 ENTIRE AGREEMENT. This Lease contains all of the agreements and
understandings related to the leasing of the Premises and the respective
obligations of Landlord and Tenant in connection therewith. Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon, any warranties, representations, promises or statements,
except those that are expressly set forth in this Lease, including any riders
and all exhibits hereto. All prior agreements and understandings between the
parties have merged into this Lease, which alone fully and completely expresses
the agreement of the parties.
26.03 AMENDMENTS. No agreement shall be effective to amend, change, modify,
waive, release, discharge, terminate or effect an abandonment of this Lease, in
whole or in part, unless such agreement is in writing, refers expressly to this
Lease and is signed by Landlord and Tenant. Material modifications to this Lease
must also be approved by any mortgagee who has such right under its mortgage.
26.04 SUCCESSORS. Except as otherwise expressly provided herein, the obligations
of this Lease shall bind and benefit the successors and assigns of the parties
hereto; provided, however, that no assignment, sublease or other transfer in
violation of the provisions of Article 19 shall operate to vest any rights in
any putative assignee, sublessee or transferee of Tenant.
26.05 FORCE MAJEURE. Neither Landlord nor Tenant shall have any liability
whatsoever to the other on account of (a) the inability to fulfill, or delay in
fulfilling, any of its obligations under this Lease by reason of war, civil
disobedience, strike, other labor trouble, governmental preemption of priorities
or other controls in connection with a national or other public emergency, or
shortages of fuel, supplies or labor resulting therefrom, or any other cause,
whether similar or dissimilar to the above, beyond its reasonable control; or
(b) any failure or defect in the supply, quantity or character of electricity or
water furnished to the Premises, by reason of any requirement, act or omission
of the public utility or others furnishing the Building with electricity or
water, or for any other reason, whether similar or dissimilar to the above,
beyond Landlord's reasonable control. If this Lease specifies a time period for
performance of an obligation, that time period shall be extended by the period
of any delay in such performance caused by any of the events of force majeure
described above.
26.06 POST-TERMINATION OBLIGATIONS. Upon the expiration of the Lease Term or
earlier termination of this Lease, neither party shall have any further
obligation or liability to the other except as otherwise expressly provided in
this Lease, and except for such obligations as by their nature or under the
circumstances can only be, or, by the provisions of this Lease, may be,
performed after such expiration or earlier termination. However, any liability
for a payment of Rents shall survive the expiration or earlier termination of
this Lease.
26.07 EXCAVATIONS. If an excavation is made upon land adjacent to or under the
Building, or is authorized to be made, then, at the request of Landlord, Tenant
shall afford persons performing the excavation and shoring license to enter the
Premises for the purpose of doing such work as those persons may deem necessary
or desirable to preserve and protect the Building from injury or damage and to
support the Building. Tenant shall have no claim for damages or liability
against Landlord or such persons, and Tenant's obligations under this Lease
shall not be reduced or otherwise affected.
26.08 Definitions. For the purposes of this Lease, the following terms shall
have the following meanings:
(a) Including. "Including" and "include" shall be interpreted in the
merely descriptive and non-exclusive sense unless the contrary is explicitly set
forth thereat.
(b) Landlord. "Landlord" shall mean the Landlord herein named or any
successor in interest, but only for the time that any such person owns the
Building or a lease of the Building in accordance with and subject to the
provisions of Section 24.04.
(c) Landlord's Affiliates. "Landlord's Affiliates" shall mean BHAM,
Ltd., Fortune Funding Company, Housing Affiliates, Inc., HAI Corp., and Realtech
Leasing and Management Co.
(d) Laws. "Laws," "provisions of law," and words of similar import shall
mean laws, statutes, ordinances, building and fire codes, rules, regulations,
judgments, rulings, decrees, orders and directives of any or all of the federal,
state, county and city governments and all departments, subdivisions, bureaus,
courts, agencies or offices thereof, and of any other governmental, public or
quasi-public authorities having jurisdiction over the Building or the Premises,
and the direction of any public officer pursuant to law, whether now or
hereafter in force. References to specific statutes include successor statutes
of similar purpose and import.
(e) Mortgaqe. "Mortgage" shall include a mortgage, a deed to secure
debt, or a deed of trust, and "holder of a mortgage" or "mortgagee" or words of
similar import shall include a mortgagee of a mortgage, a grantee of a deed to
secure debt, or a beneficiary of a deed of trust.
(f) Person. "Person" shall mean any natural person or persons, a
partnership, a corporation, and any other form of business or legal association
or entity.
(g) Rentable Area of the Building. "Rentable Area of the Building" shall
mean 280,867 square feet.
(h) Tenant. "Tenant" shall mean the Tenant herein named or any assignee
or other successor in interest (immediate or remote) of the Tenant herein named,
who at the time in question is the owner of the Tenant's estate and interest
granted by this Lease; but the foregoing shall not be construed to permit any
sublease or assignment of this Lease in violation of Article 19, or to relieve
the Tenant herein named or any assignee or other successor in interest (whether
immediate or remote) of the Tenant herein named from the full and prompt
payment, performance and observance of the covenants, obligations and conditions
to be paid, performed and observed by Tenant under this Lease. The Tenant herein
named and all assignees and other successors in interest shall remain liable for
all such covenants, obligations and conditions as principals and not as
guarantors.
26.09 LIGHT AND AIR. No diminution or shutting off of light, air or view by any
structure that may be erected on lands in the vicinity of the Building shall in
any manner affect this Lease or the obligations of Tenant hereunder, or impose
any liability on Landlord.
26.10 GOVERNING LAW. This Lease shall be governed by and construed in accordance
with the laws of the State of California.
26.11 INVALIDITY. If any provision of this Lease or the application thereof to
any person or circumstance shall, for any reason and to any extent, be invalid
or unenforceable, the remainder of this Lease shall not be affected, and said
provision and the application of said provision to other persons or
circumstances shall be enforced to the greatest extent permitted by law.
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26.12 CAPTIONS. The captions, headings and title of this Lease, along with
tables of contents or indexes of defined terms, if any, are solely for
convenience of reference and shall not affect the interpretation of this Lease.
26.13 PRESUMPTIONS. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party drafting a
document. It shall be construed neither for nor against Landlord or Tenant, but
shall be given a reasonable interpretation in accordance with the plain meaning
of its terms and the intent of the parties.
26.14 INDEPENDENT COVENANTS. Each covenant, agreement, obligation or other
provision of this Lease on Tenant's part to be performed shall be deemed and
construed as a separate and independent covenant of Tenant, not dependent on any
other provision of this Lease.
26.15 NUMBER AND GENDER. All terms and words used in this Lease, regardless of
the number of gender in which they are used, shall be deemed to include any
other number and any other gender as the context may require.
26.16 TIME IS OF THE ESSENCE. Time is of the essence of this Lease and of each
provision hereof in which a time of performance is established.
26.17 JOINT AND SEVERAL LIABILITY. If, at any time during the Lease Term, Tenant
comprises more than one person, all such persons shall be jointly and severally
liable for payment of Rents and for performance of every obligation of Tenant
under this Lease.
26.18 EXHIBITS. All exhibits and any riders appended to this Lease are
incorporated herein and by this reference made a part hereof.
26.19 SUBMISSION OF LEASE. The submission of this Lease to Tenant or its broker,
agent or attorney for review or signature does not constitute an offer to Tenant
to lease the Premises or the granting of an option to do so. This instrument
shall have no binding force or effect until its execution and delivery by both
Landlord and Tenant.
26.20 LABOR HARMONY. Tenant shall not use (and upon notice from Landlord shall
cease using) contractors, services, workmen, labor, materials or equipment that,
in Landlord's reasonable judgment, would disturb labor harmony with the
workforce or trades engaged in performing other work, labor or services in or
about the Building.
26.21 RULES AND REGULATIONS. Tenant shall observe and comply with the Rules and
Regulations for the Building set forth in Exhibit D hereto, and any reasonable
amendments and additions thereto as Landlord may adopt from time to time for the
management, safety, security, care, cleanliness and good order of the Building
(the "Rules and Regulations"). Landlord shall not be responsible or liable to
Tenant for violations of the Rules and Regulations by other lessees and
occupants of the Building.
26.22 INSOLVENCY. At any time during the Lease Term that (a) Landlord reasonably
believes that Tenant is insolvent, is not generally discharging its liabilities
as they become due or is (or will be) otherwise unable to pay the full amount of
Rents as said Rents become due hereunder, and (b) Tenant (i) is not obligated to
pay the full amount of Basic Rent as set forth in Section 3.01, which lack of
obligation is permitted by an abatement clause of this Lease or other agreement
between Landlord and Tenant, and/or (ii) is entitled to the benefit of an
allowance from Landlord for the purpose of constructing tenant improvements in
the Premises, then Landlord may, but is not obligated to, (c) terminate this
Lease upon thirty days' notice thereof to Tenant, (d) demand, by notice thereof
to Tenant, that Tenant pay the full amount of Basic Rent as provided in this
Lease irrespective of any abatement clause hereof or other agreement between
Landlord and Tenant, (e) terminate, by notice thereof to Tenant, the continued
and future benefit to Tenant of any allowance for the construction of tenant
improvements in the Premises, thereby obligating Tenant to complete said
improvements at its sole cost and expense, or (f) exercise any combination of
the rights permitted to Landlord in this Section 26.22 as may be appropriate
under the circumstances. Notwithstanding the foregoing, if Landlord exercises
any of the rights permitted to it in this Section 26.22 (except if Landlord
terminates this Lease pursuant thereto) and Tenant thereafter fully performs all
of its obligations under this Lease (as modified by the exercise of such rights)
throughout the twelve months following Landlord's exercise of such rights, then
Landlord shall refund to Tenant the benefit that would have inured to Tenant but
for this Section 26.22. Such refund shall be made over a period of time
equivalent in length to that over which Tenant would have received such benefit
but for this Section 26.22, and equal to the dollar amount of such benefit
without regard for interest or the time-value of money.
26.23 TERMINATION. No termination or expiration of this Lease shall serve to
release Tenant from any obligation that relates to one or more periods prior to
such termination or expiration, or from any obligation that by its nature,
arises on or after such termination or expiration.
ARTICLE 27
RIDER
27.01 RIDER TO LEASE. This Lease is modified and amended by the terms of the
Rider attached hereto. In the event that the printed terms of the Rider conflict
with the printed terms of this Lease, the printed terms of the Rider shall
prevail. Typewritten and handwritten modifications and amendments to the Rider
and to this Lease, when initialled by Landlord and by Tenant, shall prevail in
any conflict with printed terms, whether in the Rider or in this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the
date first above written.
TENANT:
STATMON TECHNOIOGIES CORP.,
a Delaware corporation
By /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Its CEO
-------------------------------------
By
------------------------------------------
Its
--------------------------------------
DATED: , 19
-------------------------- ----
LANDLORD:
MAPLE PLAZA, LTD., a California limited partnership
By BHAM, Ltd., a California limited partnership,
General Partner
By Housing Affiliates, Inc., a California corporation,
General Partner
By /s/ [ILLEGIBLE]
-----------------------------------------
Its CFO
-------------------------------------
DATED: December 4, 2001
-------------------------------------
-13-
EXHIBIT B
MEMORANDUM OF LEASE COMMENCEMENT
This Memorandum of Lease Commencement is made as of December 20, 2001
by MAPLE PLAZA, LTD. a California limited partnership ("Landlord"), having an
office at c/o Realtech Development & Construction Company, 0000 Xxxxxxx Xxxx
Xxxx, Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx and Statmon Technologies Corp., a
Delaware corporation ("Tenant"), having an office at 000 Xxxxx Xxxxx Xxxxx,
Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx. Landlord and Tenant agree to and
acknowledge the following matters:
1. Landlord and Tenant have entered into a lease dated as of December
3, 2001 (the "Lease"), covering office space in Suite 120, located at 000 Xxxxx
Xxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, as more particularly described in
the Lease.
2. All terms defined in the Lease shall have the same meaning when used
in this Memorandum of Lease Commencement.
3. The Commencement Date of the Lease is December 10, 2001 and the
Expiration Date of the Lease is December 31, 2004.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum
of Lease Commencement as of the day and year first above written.
TENANT: LANDLORD:
Statmon Technologies Corp. MAPLE PLAZA, LTD.,
a Delaware corporation a California limited partnership
By BHAM, Ltd.,
a California limited partnership,
General Partner
By /s/ Xxxxxxxx Xxxxxx By Housing Affiliates, Inc.,
--------------------------------- a California corporation,
Its CEO General Partner
-----------------------------
By /s/ [ILLEGIBLE]
-------------------------------
Its Pres.
---------------------------
B-1 Exhibit B
RIDER TO LEASE
BETWEEN
MAPLE PLAZA, LTD. (LANDLORD)
AND
STATMON TECHNOLOGIES CORP. (TENANT)
RENTAL ABATEMENT. Section 3.07 is hereby added to the Lease.
3.07 RENTAL ABATEMENT. Notwithstanding anything in this Article 3 to the
contrary, Tenant shall receive a rental abatement of Nineteen Thousand Three
Hundred Ninety-Five and 75/100 Dollars ($19,395.75) which shall be applied
against first rents due. Tenant shall pay all other amounts due under the Lease
in full.
ARTICLE 17 - SUBORDINATION AND ATTORNMENT. Article 17 of the Lease is hereby
amended to read in its entirety as follows:
17.01 SUBORDINATION. This Lease, and all rights of Tenant under it, are
subordinate to all present and future leases of all or any part of the Building
or the Land (except for leases of office or commercial space by other occupants
of the Building); existing and future mortgages (as "mortgage" is defined in
Section 26.08) encumbering the Building, the Land or any of such leases,
including mortgages also covering other real property; all past and future
advances made under such mortgages, all renewals, modifications, replacements
and extensions of such leases and such mortgages and spreaders and
consolidations of such mortgages; unless the mortgagee under any such mortgage
elects that this Lease shall be superior to his mortgage pursuant to Section
17.02. Notwithstanding the foregoing to the contrary, no such subordination to
any future mortgage shall occur hereunder until such future mortgagee delivers a
reasonably acceptable non-disturbance agreement to Tenant. This Section shall be
self-operative and no further instrument of subordination shall be required. In
confirmation of subordination, however, Tenant shall promptly execute,
acknowledge and deliver to Landlord a any instrument that Landlord or the
mortgagee under any such mortgage or any of their respective successors in
interest may reasonably request to evidence such subordination. If Tenant fails
to execute, acknowledge or deliver any such instrument within 10 business days
after request therefor, such failure shall constitute a default under this
Lease. Tenant hereby irrevocably appoints Landlord as tenant's attorney-in-fact,
coupled with an interest, to execute, acknowledge and deliver any such
instrument for and on behalf of Tenant in the event of such a default by Tenant,
but exercise by Landlord of such power-of-attorney shall not cure the default.
17.02 ELECTION TO SUBORDINATE. By written notice to Tenant, any mortgagee
may elect to subordinate its mortgage to this Lease.
17.03 NOTICE AND CURE OF LANDLORD'S DEFAULT. If any act or omission of
Landlord would give Tenant the right, immediately or after lapse of a period of
time, to cancel or terminate this Lease, or to claim a partial or total
eviction, Tenant shall not exercise such right (a) until it has given written
notice of the act or omission to Landlord, and any mortgagee which has provided
its address to Tenant which notice shall specifically refer to this Section
17.03 and shall describe Landlord's default, if any, with reasonable specificity
and detail, specifying the section of this Lease as to which Landlord is in
default, and (b) until a reasonable, period for remedying the act or omission
shall have elapsed following the giving of such notice and following the time
during which each mortgagee would be entitled under its mortgage to remedy the
act or omission (which reasonable period shall in no event be shorter than the
period during which Landlord would be entitled under this Lease or otherwise,
after similar notice, to effect such remedy). If, within said reasonable period,
such mortgagee gives Tenant notice of its intention to remedy the act or
omission, and thereafter diligently commences the required remedial action and
pursues it to completion, Tenant shall have no right to terminate this Lease on
account of the act or omission of Landlord.
17.04 ATTORNMENT. Any mortgagee who succeeds to the rights of landlord
under this Lease, whether through exercise of remedies in a mortgage or by
operation of law, is in this Section called a "Successor Landlord." Upon the
Successor Landlord's request and after delivery of a reasonably acceptable
nondisturbance agreement to Tenant, Tenant shall attorn to and recognize the
Successor Landlord as Tenant's landlord under this Lease and shall promptly
execute and deliver any instrument that such Successor Landlord may reasonably
request to evidence the attornment. Tenant hereby irrevocably appoints Landlord
or the Successor Landlord as Tenant's attorney-in-fact, coupled with an
interest, to execute, acknowledge and deliver the instrument of attornment on
behalf of Tenant. Upon attornment, this Lease shall continue in full force and
effect and as a direct lease between the Successor Landlord and Tenant, upon all
of the terms, conditions and covenants as are set forth in this Lease, subject
to the provisions of Section 24.04.
17.05 REQUIREMENTS OF MORTGAGEE. If any mortgagee requires modification of
this Lease, Tenant shall, at Landlord's request, promptly execute and deliver to
Landlord instruments effecting the modifications that the mortgage requires,
provided that such modifications do not adversely affect in a material respect
any of Tenant's rights under this Lease or materially and adversely increase any
of Tenant's obligations under this Lease or increase any monetary obligations of
Tenant.
EXHIBIT C. WORK LETTER FOR TENANT IMPROVEMENTS. With regard to tenant
improvements, Landlord agrees to provide, at Landlord's expense, a general suite
clean-up to include new "building standard" paint, carpet and base. Any
additional tenant improvement cost shall be the responsibility of and at the
sole cost of the Tenant.
CALIFORNIA CIVIL CODE SECTION 1951.4. "The lessor has the remedy described in
California Civil Code Section 1951.4 (lessor may continue lease in effect after
lessee's breach and abandonment and recover rent as it becomes due, if lessee
has right to sublet or assign, subject only to reasonable limitations)."
In the event that the printed terms of this Rider conflict with the printed
terms of the Lease, the printed terms of this Rider shall prevail.
TENANT: STATMON TECHNOLOGIES CORP.,
a Delaware corporation
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------
Its: CEO
------------------------------
Dated: 12/4/01
--------------------------------
LANDLORD: MAPLE PLAZA, LTD.,
A California limited partnership
By BHAM, LTD., a California limited partnership,
General Partner
By Housing Affiliates, Inc., a California corporation,
General Partner
By: /s/ ILLEGIBLE
-----------------------------------
Its: CFO
------------------------------
Dated: 12/4/01
--------------------------------
