EXHIBIT 10.10
XXXXXX CORPORATE PARK
OFFICE LEASE
BETWEEN
THE XXXXXXX FAMILY TRUST DATED OCTOBER 30, 1989
("LANDLORD")
AND
BRIDGEBANK N.A.,
a federally chartered national bank
("TENANT")
TABLE OF CONTENTS
PAGE
ARTICLE 1 TERM................................................................1
ARTICLE 2 POSSESSION..........................................................2
ARTICLE 3 RENT................................................................3
ARTICLE 4 RENTAL ADJUSTMENT...................................................4
ARTICLE 5 SECURITY DEPOSIT....................................................8
ARTICLE 6 USE.................................................................9
ARTICLE 7 NOTICES............................................................10
ARTICLE 8 BROKERS............................................................10
ARTICLE 9 HOLDING OVER; SURRENDER............................................11
ARTICLE 10 TAXES ON TENANT'S PROPERTY........................................11
ARTICLE 11 CONDITION OF PREMISES.............................................12
ARTICLE 12 ALTERATIONS.......................................................12
ARTICLE 13 REPAIRS...........................................................13
ARTICLE 14 LIENS.............................................................15
ARTICLE 15 ENTRY BY LANDLORD AND RESERVED RIGHTS OF LANDLORD.................15
ARTICLE 16 UTILITIES AND SERVICES............................................16
ARTICLE 17 BANKRUPTCY........................................................17
ARTICLE 18 INDEMNIFICATION...................................................17
ARTICLE 19 DAMAGE TO TENANT'S PROPERTY.......................................18
ARTICLE 20 TENANT'S INSURANCE................................................18
ARTICLE 21 DAMAGE OR DESTRUCTION.............................................20
ARTICLE 22 EMINENT DOMAIN....................................................23
ARTICLE 23 DEFAULTS AND REMEDIES.............................................24
ARTICLE 24 ASSIGNMENT AND SUBLETTING.........................................27
ARTICLE 25 SUBORDINATION; MORTGAGEE PROTECTION...............................28
ARTICLE 26 ESTOPPEL CERTIFICATE..............................................29
ARTICLE 27 SIGNAGE...........................................................30
ARTICLE 28 RULES AND REGULATIONS.............................................31
ARTICLE 29 CONFLICT OF LAWS..................................................31
ARTICLE 30 SUCCESSORS AND ASSIGNS............................................31
ARTICLE 31 SURRENDER OF PREMISES.............................................31
ARTICLE 32 ATTORNEYS' FEES...................................................31
ARTICLE 33 PERFORMANCE BY TENANT.............................................32
ARTICLE 34 MORTGAGEE PROTECTION..............................................32
ARTICLE 35 DEFINITION OF LANDLORD............................................32
ARTICLE 36 WAIVER............................................................32
ARTICLE 37 IDENTIFICATION OF TENANT..........................................33
ARTICLE 38 PARKING...........................................................33
ARTICLE 39 TERMS AND HEADINGS................................................34
ARTICLE 40 EXAMINATION OF LEASE..............................................34
ARTICLE 41 TIME..............................................................34
TABLE OF CONTENTS
PAGE
ARTICLE 42 PRIOR AGREEMENT: AMENDMENTS......................................34
ARTICLE 43 SEPARABILITY......................................................34
ARTICLE 44 RECORDING.........................................................34
ARTICLE 45 CONSENTS..........................................................35
ARTICLE 46 LIMITATION ON LIABILITY...........................................35
ARTICLE 47 RIDERS............................................................35
ARTICLE 48 EXHIBITS..........................................................36
ARTICLE 49 MODIFICATION FOR LENDER; FINANCIAL INFORMATION....................36
ARTICLE 50 PROJECT PLANNING..................................................36
ARTICLE 51 HAZARDOUS MATERIALS...............................................37
ARTICLE 52 COUNTERPARTS......................................................38
ARTICLE 53 FORCE MAJEURE.....................................................38
ARTICLE 54 WAIVER OF RIGHT TO JURY TRIAL.....................................34
ARTICLE 55 OPTION TO RENEW...................................................35
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LIST OF EXHIBITS
EXHIBIT A The Premises
EXHIBIT A-1 The Project
EXHIBIT B Work Letter
EXHIBIT C Standards for Utilities and Services
EXHIBIT D Rules and Regulations
EXHIBIT E Parking Rules and Regulations
EXHIBIT F Commencement Date Memorandum
The exhibits attached hereto are incorporated into and made a part of this
Lease.
XXXXXX CORPORATE PARK
SYCAMORE TERRACE
THIS LEASE is made as of April __, 2006 for reference purposes only and
is entered into by and between THE XXXXXXX FAMILY TRUST DATED OCTOBER 30, 1989
("Landlord"), and BRIDGEBANK N.A., a federally chartered national bank
("Tenant").
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
Suite Number 135 (the "Premises") outlined on the floor plan attached hereto and
marked EXHIBIT A, the Premises being agreed, for the purposes of this Lease, to
have an area of approximately 1,639 rentable square feet and being situated on
the first floor of that certain office building located at 0000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxxxx (the "Building"), and part of a one building
complex (the "Project") more particularly described in EXHIBIT A-1 attached
hereto. The Project contains approximately sixty nine thousand five hundred
eighty eight (69,588) square feet of space.
Landlord and Tenant agree that said letting and hiring is upon and
subject to the terms, covenants and conditions herein set forth. Tenant
covenants, as a material part of the consideration for this Lease, to keep and
perform each and all of said terms, covenants and conditions for which Tenant is
liable and that this Lease is made upon the condition of such performance.
Prior to the commencing of the term of this Lease, Landlord shall cause
the Premises to be improved by the Tenant Improvements described in the Work
Letter marked EXHIBIT B attached hereto. Except as expressly provided to the
contrary in this Lease, Landlord shall not be required to make any expenditure,
incur any obligation, or incur any liability of any kind whatsoever in
connection with the Lease or the ownership, construction, maintenance, operation
or repair of the Premises or the Project.
ARTICLE 1
TERM
1.1 COMMENCEMENT DATE. The term of this Lease shall be for FORTY-ONE
(41) MONTHS unless sooner terminated as hereinafter provided, commencing on the
date which is the earlier of:
(a) the date on which the Premises are Substantially Complete
(as hereinafter defined); or
(b) the date that Tenant opens for business in the Premises;
(or, at Landlord's election, upon the first day of the first
full month following the earlier to occur of (a) or (b) above).
The Premises shall be deemed to be "Substantially Complete" on
the earliest of the date on which: (1) Landlord files or causes to be filed with
the City of Pleasanton (the "City"), if required, and delivers to Tenant an
architect's notice of substantial completion, or similar written notice that the
Premises are substantially complete (and the Tenant Improvements have been
substantially completed), (2) Tenant first occupies all or any portion of the
Premises, or (3) a certificate of occupancy (or a reasonably substantial
equivalent such as a signoff from a building inspector or a temporary
certificate of occupancy) is issued for the Premises.
1.1.1 The date that the Lease commences in accordance with
this Article 1 shall be referred to herein as the "Commencement Date". If either
of the events described in Paragraph 1.1 (a) or (b) occurs on the first day of a
month, that date shall be the Commencement Date of this Lease.
1.1.2 On and after the Commencement Date, the Lease shall
continue in full force and effect for the period of time specified as the Term
or until this Lease is terminated as otherwise provided herein. As soon as the
Commencement Date is determined, Tenant shall execute a Commencement Date
Memorandum in the form attached hereto as Exhibit F acknowledging, among other
things, the (a) Commencement Date, (b) scheduled termination date of this Lease
and (c) Tenant's acceptance of the Premises. The Tenant's failure to execute the
Commencement Date Memorandum shall not affect Tenant's liability hereunder.
1.1.3 Reference in this Lease to a "Lease Year" shall mean
each successive twelve month period commencing with the Commencement Date.
1.1.4 Landlord and Tenant estimate that the Commencement Date
shall be six (6) weeks after mutual execution and delivery of this Lease by
Landlord and Tenant, but such estimate is not and shall not be deemed to be a
representation or warranty by Landlord that Premises shall be ready for Tenant's
occupancy on such date.
1.1.5 Landlord shall provide Tenant with limited access to the
Premises at such times as may be designated by Landlord in light of construction
work by Landlord in the Premises for a period of approximately two (2) weeks
prior to the date which Landlord anticipates being the Commencement Date for the
sole purpose of permitting Tenant to ready the Premises for Tenant's occupancy,
so that Tenant's access does not interfere with the performance of Landlord's
work in the Premises. Tenant's access to the Premises during the period of time
prior to the Commencement Date shall be subject to all the provisions of this
Lease (including the Rules and Regulations and such other rules and regulations
as Landlord may reasonably impose), other than the payment of Rent and the
expiration date of the Lease shall not be advanced by such access by Tenant of
the Premises prior to the Commencement Date. Tenant shall not interfere with
Landlord's performance of Landlord's work in the Premises.
ARTICLE 2
POSSESSION
2.1 LEASE IN FULL FORCE AND EFFECT; TERMINATION RIGHT. Tenant agrees
that, if Landlord is unable to deliver possession of the Premises to Tenant on
the anticipated Commencement Date, this Lease shall not be void or voidable, nor
shall Landlord be liable to Tenant for any loss or damage resulting therefrom,
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but in such event the Term of this Lease shall not commence until Landlord
tenders possession of the Premises to Tenant with the Tenant Improvements
substantially completed or Tenant opens for business in the Premises. If the
Commencement Date does not commence by ninety (90) days after the anticipated
Commencement Date (the "Cut-Off Date"), Tenant may, as its sole and exclusive
remedy in connection therewith, terminate this Lease by providing Landlord
written notice thereof on or three (3) business days after the Cut-Off Date, in
which event neither Landlord nor Tenant shall have any liability hereunder and
Landlord shall return to Tenant the Security Deposit and any prepaid rents;
provided however, that any delay caused by Force Majeure (as hereinafter
defined) or Delays Caused by Tenant (as defined in the Work Letter), shall
result in a day-for-day extension of the Cut-Off Date.
2.2. ACCEPTANCE BY TENANT. Tenant has determined that the Premises are
acceptable for Tenant's use and Tenant acknowledges that neither Landlord nor
any broker or agent has made any representations or warranties in connection
with the physical condition of the Premises or their fitness for Tenant's use
upon which Tenant has relied directly or indirectly for any purpose. Except as
expressly provided to the contrary in this Lease, Landlord shall not be required
to make any expenditure, incur any obligation, or incur any liability of any
kind whatsoever in connection with this Lease or the ownership, construction,
maintenance, operation or repair of the Premises or the Project. Tenant's
possession of the Premises during the period of time, if any, prior to the
Commencement Date, shall be subject to all the provisions of this Lease and
shall not advance the expiration date. Rent shall be paid for such period at the
rate stated in Article 3, prorated on the basis of a thirty (30) day month, and
shall be due and payable to Landlord on or before the Commencement Date.
ARTICLE 3
RENT
3.1 RENT. Tenant shall pay to Landlord, in lawful money of the United
States of America, at the address of Landlord designated on the signature page
of this Lease or to such other person or at such other place as Landlord may
from time to time designate in writing, the monthly base rent (the "Base Rent")
in advance, without notice, demand, offset or deduction, on the first day of
each calendar month. Tenant shall pay the first month's Base Rent on the date
Tenant executes this Lease, and shall continue to pay the Base Rent on the first
day of each month thereafter (subject to adjustment as hereinafter provided) as
follows:
MONTHS OF TERM BASE RENT/PER MONTH
1 - 5 $0.00
6 - 17 $3,851.65
18 - 29 $3,933.60
30 - 41 $4,015.55
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If the Term commences or ends on a date other than the first or last day of a
month, Base Rent shall be prorated on the basis of a thirty (30) day month.
Tenant shall pay Landlord the Rent (as hereinafter defined) due under this Lease
without any deduction or offset whatsoever by Tenant, foreseeable or
unforeseeable.
3.2 ADDITIONAL RENT. In addition to the Base Rent, Tenant agrees to pay
as additional rental (the "Additional Rent" and together with the Base Rent, the
"Rent") the amount of rental adjustments and all other charges required by this
Lease. All sums other than the Base Rent that Tenant is obligated to pay under
this Lease will be Additional Rent, whether or not such sums are designated as
Additional Rent.
3.3 LATE CHARGE AND INTEREST. Tenant acknowledges and agrees that the
late payment of any Rent will cause Landlord to incur additional costs,
including administration and collection costs, processing and accounting
expenses, and increased debt service (the "Delinquency Costs"). If Landlord has
not received any installment of Rent when due, Tenant shall pay a late charge
(the "Late Charge") equal to seven and one-half percent (7.5%) of the delinquent
amount; provided, however, that provide that no Event of Default has occurred,
no such Late Charge shall be payable for the first time in each twenty (24)
calendar months if such installment of Rent is received within three (3)
business days after written notice from Landlord requiring payment of Rent.
Tenant agrees that the Late Charge represents a reasonable estimate of the
Delinquency Costs that will be incurred by Landlord. In addition, Tenant shall
pay interest on all delinquent amounts from the date which is three (3) business
days after written notice from Landlord requiring payment of Rent until the date
the amount is paid in full at a rate per annum (the "Applicable Interest Rate")
equal to the lesser of (a) the maximum interest rate permitted by law or (b)
five percent (5%) above the reference rate (the "Reference Rate") publicly
announced by Bank of America, NA. (or if Bank of America, NA. ceases to exist,
the largest bank then headquartered in the State of California) (the "Bank"). If
the Bank discontinues use of the Reference Rate, then the term "Reference Rate"
will mean the announced rate charged by the Bank, from time to time instead of
the Reference Rate. Landlord and Tenant agree that it is difficult to ascertain
the damage that Landlord will suffer as a result of the late payment of any Rent
and that the Late Charge and interest are the best estimates of the damage that
Landlord will suffer in the event of late payment. If a Late Charge becomes
payable for any two (2) installments of Rent within any twelve (12) month
period, then all Rent will automatically become due and payable quarterly in
advance.
ARTICLE 4
RENTAL ADJUSTMENT
4.1 RENTAL ADJUSTMENT.
(a) For the purpose of this Lease, the following terms are defined as
follows:
(i) TENANT'S PERCENTAGE. That portion of the Project occupied
by Tenant divided by the total rentable square footage of the Project, which
result is the following: 2.355%. If the Project is less than ninety-five percent
(95%) occupied during any calendar year of the term, an adjustment shall be made
in computing the Direct Expenses for such year so that Direct Expenses shall be
computed as though the Project were ninety-five percent (95%) occupied.
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(ii) DIRECT EXPENSES BASE. The amount of annual Direct
Expenses that Landlord has included in the Base Rent, which is equal to Tenant's
Percentage of the Direct Expenses incurred by Landlord in calendar year 2006 as
adjusted pursuant to Section 4.1(a)(i) above.
(iii) DIRECT EXPENSES. The term "Direct Expenses" shall
include "Taxes" (as hereinafter defined) and "Operating Expenses" (as
hereinafter defined).
(A) "Taxes" means the sum of any and all real and
personal property taxes and assessments (excluding
those assessments described in Section 4.1(a)(iii)(C)) possessory-interest
taxes, business or license taxes or fees, service payments in lieu of such taxes
or fees, annual or periodic license or use fees, excises, transit and traffic
charges, housing fund assessments, open space charges, childcare fees, school,
sewer and parking fees or any other assessments, levies, fees, exactions or
charges, general and special, ordinary and extraordinary, unforeseen as well as
foreseen (including fees "in-lieu" of any such tax or assessment) which are
assessed, levied, charged, conferred or imposed by any public authority upon the
Project (or any real property comprising any portion thereof) or its operations,
together with all taxes, assessments or other fees imposed by any public
authority upon or measured by any Rent or other charges payable hereunder,
including any gross receipts tax or excise tax levied by any governmental
authority with respect to receipt of rental income, or upon, with respect to or
by reason of the development, possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Premises or
any portion thereof, or documentary transfer taxes upon this transaction or any
document to which Tenant is a party creating or transferring an interest in the
Premises, together with any tax imposed in substitution, partially or totally,
of any tax previously included within the aforesaid definition or any additional
tax the nature of which was previously included within the aforesaid definition,
together with any and all costs and expenses (including, without limitation,
attorneys, administrative and expert witness fees and costs) of challenging any
of the foregoing or seeking, the reduction in or abatement, redemption or return
of any of the foregoing, but only to the extent of any such reduction,
abatement, redemption or return. All references to Taxes during a particular
year shall be deemed to refer to taxes accrued during such year, including
supplemental tax bills regardless of when they are actually assessed and without
regard to when such taxes are payable. The obligation of Tenant to pay for
supplemental taxes shall survive the expiration or earlier termination of this
Lease. In no event shall Tenant or any Tenant Party (as hereinafter defined) be
entitled to file any property tax assessment appeal. Tenant's obligations for
Taxes for the last full and/or partial year(s) of the Term shall survive the
expiration or early termination of the Lease.
(B) "Operating Expenses" means the total costs and
expenses incurred by Landlord in the operation, maintenance, repair and
management of the Project, the Common Area and the Building, including, but not
limited to, (a) repairs to and maintenance of the roof (and roof membrane),
skylights and exterior walls of the Building; (b) cleaning, maintenance, repair,
replacement, utility costs and landscaping of the entrances, lobbies and other
public areas of the Building, walkways, landscaped areas, driveways necessary
5
for access to the Premises, parking areas (including sweeping, striping and
slurry coating), and other common facilities designated by Landlord from time to
time for the common use of all tenants of the Project (the "Common Area"),
common driveways, outdoor lighting, walkways, landscaping, and other costs which
are allocable to the Project or the real property of which the Premises are a
part including any costs under the terms of any recorded covenants affecting the
real property or the Project; (c) the costs and premiums relating to the
insurance maintained by Landlord with respect to the Project, including, without
limitation, Landlord's cost of any self insurance deductible or retention,
provided, however, that if Landlord obtains earthquake insurance (it being
understood that Landlord shall not be obligated hereunder to obtain the same),
then only such deductible or retention amount for such earthquake insurance in
an amount not to exceed $10,000 per year ("Earthquake Cap"); (d) service and
maintenance contracts for, and the repair and replacement of, the heating,
ventilation and air-conditioning (HVAC) systems and elevators, if any, and
maintenance, repair, replacement, monitoring and operation of the fire/life
safety system, (e) service and maintenance contracts for security, cleaning,
janitorial and landscaping services; (f) trash collection (g) all wage and labor
costs, including fringe benefits, applicable to persons engaged in the
operation, maintenance and repair of the Project as Landlord's agents or as
independent contractors; (h) capital improvements made to or capital assets
acquired for the Project after the Commencement Date that (1) are intended to
reduce Operating Expenses or (2) are reasonably necessary for the health and
safety of the occupants of the Project or (3) are required under any and all
applicable laws, statutes, codes, ordinances, orders, rules, regulations,
conditions of approval and requirements of all federal, state, county, municipal
and governmental authorities and all administrative or judicial orders or
decrees and all permits, licenses, approvals and other entitlements issued by
governmental entities, and rules of common law, relating to or affecting the
Project, the Premises or the Building or the use or operation thereof, whether
now existing or hereafter enacted, including, without limitation, the Americans
with Disabilities Act of 1990, 42 USC 12111 et seq. (the "ADA") as the same may
be amended from time to time, all Environmental Laws (as hereinafter defined),
and any CC&Rs, or any corporation, committee or association formed in connection
therewith, or any supplement thereto recorded in any official or public records
with respect to the Project or any portion thereof (collectively, "Applicable
Laws"), which capital costs, or an allocable portion thereof, shall be amortized
over the useful life of such items under generally accepted accounting
practices; and (i) any other costs incurred by Landlord related to the Project
as a whole. Operating Expenses shall also include an administrative fee to
Landlord for accounting and project management services relating to the Project
not to exceed a market amount. Operating Expenses shall also include all costs
and fees incurred by Landlord in connection with the management of this Lease
and the Premises including the cost of those services which are customarily
performed by a property management services company, whether performed
internally or through an outside management company.
(C) Tenant acknowledges that the Premises are subject
to assessments levied to secure bonds sold by the City of Pleasanton pursuant to
Consolidated Reassessment District 1993-1. Such Assessments shall be Landlord's
responsibility throughout the term of this Lease. Tenant hereby consents to the
formation of any other districts formed for maintenance, utilities, landscaping,
lighting, special service zones, fire district, water xxxxxxxx, xxxx xxxxxxxxxx,
0
traffic mitigation, sports facilities or other improvements in the Project or
Xxxxxx Corporate Park and to the re-financing of any assessment districts,
provided that if payment of any of the foregoing is customarily charged to
tenants as a part of operating expenses, the same shall be part of Operating
Expenses herein. Tenant hereby waives any right of notice and protest in
connection with the formation and continued existence of the assessment
districts. Tenant shall execute all documents, including, but not limited to,
petitions and formal waivers of notice and protest of formation, evidencing such
consent and waiver upon request of Landlord or the City of Pleasanton. (D)
Notwithstanding anything to the contrary contained herein, for purposes of this
Lease, the terms "Operating Expenses", "Taxes", and "Direct Expenses" shall not
include the following: (i) costs (including permit, license, and inspection
fees) incurred in renovating, improving, decorating, painting, or redecorating
vacant space or space for other tenants within the Project; (ii) costs incurred
because Landlord or another tenant actually violated the terms and conditions of
any lease for premises within the Project; (iii) legal and auditing fees (other
than those fees reasonably incurred in connection with the maintenance and
operation of all or any portion the Project), leasing commissions, advertising
expenses, and other costs incurred in connection with the leasing of any portion
of the Project; (iv) depreciation of the Building or any other improvements
situated within the Project; (v) any items for which Landlord is actually
reimbursed by insurance or by direct reimbursement by any other tenant of the
Project; (vi) costs of repairs or other work necessitated by fire, windstorm or
other casualty and/or costs of repair or other work necessitated by the exercise
of the right of eminent domain to the such loss or taking is covered by
insurance or a condemnation award, as applicable; (vii) any interest or payments
on any financing for the Building or the Project, interest and penalties
incurred as a result of Landlord's late payment of any invoice (provided that
Tenant pays Tenant's Share of Operating Expenses to Landlord when due as set
forth herein), and any bad debt loss, rent loss or reserves for same; (viii)
costs associated with the investigation and/or remediation of Hazardous
Materials (hereafter defined) present in, on or about any portion of the
Project; (ix) Landlord's cost for the repairs and maintenance of the structure
and foundations; (x) overhead and profit increment paid to Landlord or to
subsidiaries or affiliates of Landlord for goods and/or services in the Project
to the extent the same exceeds the costs of such by unaffiliated third parties
on a competitive basis; or any costs included in Operating Expenses representing
an amount paid to a person, firm, corporation or other entity related to
Landlord which is in excess of the amount which would have been paid in the
absence of such relationship; (xi) any payments under a ground lease or master
lease; and (xii) any capital expenses, including, without limitation, costs for
the repairs and maintenance of the roof, except as set forth in Section
4.1(a)(iii)(B)(h) above.
(b) PAYMENT OF DIRECT EXPENSES.
(i) If Tenant's Percentage of the Direct Expenses paid or
incurred by Landlord for any calendar year exceeds the Direct Expenses Base
included in Tenant's rent, then Tenant shall pay such excess as Additional Rent.
7
(ii) In addition, for each year after the first calendar year,
or portion thereof, Tenant shall pay Tenant's Percentage of Landlord's estimate
of the amount by which Direct Expenses for that year shall exceed the Direct
Expenses Base (the "Landlord's Estimate"). This estimated amount shall be
divided into twelve equal monthly installments. Tenant shall pay to Landlord
without offset or deduction, concurrently with the regular monthly Base Rent
payment next due following the receipt of such statement, an amount equal to one
monthly installment multiplied by the number of months from January in the
calendar year in which said statement is submitted to the month of such payment,
both months inclusive. Subsequent installments shall be payable concurrently
with the regular monthly Base Rent payments for the balance of that calendar
year and shall continue until the next calendar year's statement is rendered.
(iii) As soon as possible after the end of each calendar year,
Landlord shall provide Tenant with a statement showing the amount of Tenant's
Percentage of Direct Expenses, the amount of Landlord's Estimate actually paid
by Tenant and the amount of the Direct Expenses Base. Thereafter, Landlord shall
reconcile the above amounts and shall either xxxx Tenant for the balance due
(payable on demand by Landlord) or credit any overpayment by Tenant towards the
next monthly installment of Landlord's Estimate falling due, as the case may be.
For purposes of making these calculations, in no event shall Tenant's Percentage
of the Direct Expenses be deemed to be less than the Direct Expenses Base.
(c) Tenant's obligation to pay Tenant's Percentage of Direct Expenses
shall survive the expiration or termination of this Lease. Tenant's Percentage
of Direct Expenses shall be paid by Tenant when due even though the Term has
expired and/or Tenant has vacated the Premises, when the final determination is
made of Tenant's Percentage of Direct Expenses for the year in which this Lease
terminates, Tenant shall immediately pay any increase due over the estimated
expenses paid and, conversely, any overpayment made in the event said expenses
decrease shall be rebated by Landlord to Tenant.
ARTICLE 5
SECURITY DEPOSIT
Upon execution of this Lease, Tenant shall deposit with Landlord the
sum of Four Thousand Fifteen and 55/100 Dollars ($4,015.55) (the "Security
Deposit"). The Security Deposit shall be held by Landlord as security for the
full and faithful performance by Tenant of all of Tenant's obligations
hereunder. If Tenant defaults with respect to any provision of this Lease,
including but not limited to the provisions relating to the payment of Rent,
Landlord may, but shall not be required to, use, apply or retain all or any part
of this Security Deposit for the payment of any Rent or any other sum in
default, or for the payment of any other amount which Landlord may spend or
become obligated to spend by reason of Tenant's default or to compensate
Landlord for any other loss or damage which Landlord may suffer by reason of
Tenant's default. If any portion of the Security Deposit is so used or applied,
Tenant shall, upon demand, deposit cash with Landlord in an amount sufficient to
restore the Security Deposit to its original amount. Tenant's failure to do so
shall be a material breach of this Lease. Landlord shall not be required to keep
the Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on the Security Deposit. If Tenant shall fully and
faithfully perform all of its obligations under this Lease, and if Tenant is not
in default under this Lease, the Security Deposit or any balance thereof shall
8
be returned to Tenant (or, at Landlord's option, to the last assignee of
Tenant's interests hereunder) after the expiration of the Term and after
Landlord after such time as any amount due from Tenant in accordance with
Article 4 hereof has been determined and paid in full.
ARTICLE 6
USE
Tenant shall use the Premises for general office use (including a loan
office) consistent with the character of a first class office building and shall
not use or permit the Premises to be used for any other purpose without
Landlord's prior written consent. Nothing contained herein shall be deemed to
give Tenant any exclusive right to such use in the Project. Tenant shall not use
or occupy the Premises in violation of law or of the certificate of occupancy
issued for the Building or Project, and shall, upon written notice from
Landlord, discontinue any use of the Premises which is declared by any
governmental authority having jurisdiction to be a violation of law or of said
certificate of occupancy. Tenant shall comply with any direction of any
governmental authority having jurisdiction which shall, by reason of the nature
of Tenant's use or occupancy of the Premises, impose any duty upon Tenant or
Landlord with respect to the Premises or with respect to the use or occupation
thereof. Tenant shall not do or permit to be done anything which will invalidate
or increase the cost of any fire, extended coverage or any other insurance
policy covering the Building and/or Project and/or property located therein and
shall comply with all rules, orders, regulations and requirements of the
Insurance Service Offices, formerly known as the Pacific Fire Rating Bureau or
any other organization performing a similar function. Tenant shall promptly,
upon demand, reimburse Landlord for any additional premium charged for such
policy by reason of Tenant's failure to comply with the provisions of this
Article. Tenant shall not do or permit anything to be done in or about the
Premises which will in any way obstruct or interfere with the rights of other
tenants or occupants of the Project, or injure or annoy them, or use or allow
the Premises to be used for any improper, immoral, unlawful or objectionable
purpose, nor shall Tenant cause, maintain or permit any nuisance in, on or about
the Premises. Tenant shall not commit or suffer to be committed any waste in or
upon the Premises. Tenant acknowledges that Landlord has recorded covenants,
conditions and restrictions against the Premises on February 18, 1987 as
Instrument Number 87/046032 in the Official Records of Alameda County, as
amended by that certain First Amendment to Declaration of Covenants, Conditions
and Restrictions of Xxxx Center Pleasanton on October 5, 1993 as Instrument
Number 93366552, as further amended by that certain Second Amendment to
Declaration of Easement and Maintenance Agreement on July 31, 1997 as Instrument
Number 97191415, as further amended by that certain Third Amendment to
Declaration of Covenants, Conditions and Restrictions on November 17, 2000 as
Instrument Number 2000341937, as further amended by that certain Fourth
Amendment to Declaration of Covenants, Conditions and Restrictions on August 17,
2000 as Instrument Number 2000341939 (as amended, the "CC&Rs"). Landlord
represents that the CC&Rs do not prohibit the use of the Premises for use as
general office space. Tenant's use of the Premises shall be subject to and
Tenant shall comply with the CC&Rs, as the same may be amended from time to
time, and all Applicable Laws. Tenant acknowledges that there have been and may
be from time to time recorded easements and/or declarations granting or
declaring easements for parking, utilities, fire or emergency access, and other
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matters. Tenant's use of the Premises shall be subject to and Tenant shall
comply with any and all such easements and declarations. Tenant's use of the
Premises shall be subject to such guidelines as may from time to time be
prepared by Landlord or the Xxxxxx Corporate Park Owner's Association in their
sole discretion. Tenant acknowledges that governmental entities with
jurisdiction over the Premises may, from time to time promulgate laws, rules,
plans and regulations affecting the use of the Premises, including, but not
limited to, traffic management plans and energy conservation plans. Tenant's use
of the Premises shall be subject to and Tenant shall comply with any and all
such laws, rules, plans, and regulations. Tenant, at its sole cost, shall comply
with any and all federal, state or local environmental, health and/or
safety-related laws, regulations, standards, decisions of courts, ordinances,
rules, codes, orders, decrees, directives, guidelines, permits or permit
conditions, currently existing and as amended, enacted, issued or adopted in the
future which are or become applicable to Tenant, the Premises, the Building, the
Common Area or the Project ("Environmental Laws"). If Tenant does store, use or
dispose of any "Hazardous Materials" (as hereinafter defined), Tenant shall
notify Landlord in writing at least ten (10) days prior to their first
appearance on the Premises. As used herein, "Hazardous Materials" means any
chemical, substance, material, controlled substance, object, condition, waste,
living organism or combination thereof, whether solid, semi solid, liquid or
gaseous, which is or may be hazardous to human health or safety or to the
environment due to its radioactivity, ignitability, corrosivity, reactivity,
explosivity, toxicity, carcinogenicity, mutagenicity, phytotoxicity,
infectiousness or other harmful or potentially harmful properties or effects,
including, without limitation, tobacco smoke, petroleum and petroleum products,
asbestos, radon, polychlorinated biphenyls (PCBs), refrigerants (including those
substances defined in the Environmental Protection Agency's "Refrigerant
Recycling Rule," as amended from time to time) and all of those chemicals,
substances, materials, controlled substances, objects, conditions, wastes,
living organisms or combinations thereof which are now or become in the future
listed, defined or regulated in any manner by any Environmental Law based upon,
directly or indirectly, such properties or effects.
ARTICLE 7
NOTICES
Any notice required or permitted to be given hereunder must be in
writing and may be given by personal delivery or by mail, and if given by mail
shall be deemed sufficiently given if sent by registered or certified mail
addressed to Tenant at the Project and to Tenant at 00 Xxxxxxx Xxxxxxxxx, Xxx
Xxxx, Xxxxxxxxxx 00000, or to Landlord at its address set forth at the end of
this Lease. Either party may specify a different address for notice purposes by
written notice to the other except that the Landlord may in any event use the
Premises as Tenant's address for notice purposes.
ARTICLE 8
BROKERS
Tenant warrants that it has had no dealings with any real estate broker
or agent in connection with the negotiation of this Lease, except Colliers
International and Cornish & Xxxxx Commercial, whose commissions shall be payable
by Landlord. Tenant warrants that it knows of no other real estate broker or
agent who is or might be entitled to a commission in connection with the Lease.
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If Tenant has dealt with any other person or real estate broker with respect to
leasing or renting space in the Project, Tenant shall be solely responsible for
the payment of any fee due said person or firm and Tenant shall hold Landlord
free and harmless against any liability in respect thereto, including attorneys'
fees and costs.
ARTICLE 9
HOLDING OVER; SURRENDER
9.1 HOLDING OVER. If Tenant holds over the Premises or any part thereof
after expiration of the Term, such holding over shall, at Landlord's option,
constitute a month-to-month tenancy, at a rent equal to one hundred fifty
percent (150%) of the Base Rent in effect immediately prior to such holding over
and shall otherwise be on all the other terms and conditions of this Lease. The
provisions of this Section 9.1 shall not be construed as Landlord's permission
for Tenant to hold over. Acceptance of Rent by Landlord following expiration or
termination shall not constitute a renewal of this Lease or extension of the
Term except as specifically set forth above. If Tenant fails to surrender the
Premises upon expiration or earlier termination of this Lease, Tenant shall
indemnify and hold Landlord harmless from and against all loss or liability
resulting from or arising out of Tenant's failure to surrender the Premises,
including, but not limited to, any amounts required to be paid to any tenant or
prospective tenant who was to have occupied the Premises after the expiration or
earlier termination of this Lease and any related attorneys' fees and brokerage
commissions.
9.2 SURRENDER. Upon the termination of this Lease or Tenant's right to
possession of the Premises, Tenant will surrender the Premises broom clean,
together with all keys, in good condition and repair, reasonable wear and tear
excepted. Tenant shall patch and fill all holes within the Premises. Tenant
shall also remove all alterations or improvements made by it, or made by
Landlord at Tenant's request or direction, to the Premises (which removal shall
include restoration if and to the extent necessary to return the Premises to its
condition at the Commencement Date, reasonable wear and tear excluded),
excluding, however the Tenant Improvements, unless requested not to do so by
Landlord. In no event may Tenant remove from the Premises any mechanical or
electrical systems or any wiring or any other aspect of any systems within the
Premises. Conditions existing because of Tenant's failure to perform
maintenance, repairs or replacements shall not be deemed "reasonable wear and
tear."
ARTICLE 10
TAXES ON TENANT'S PROPERTY
(a) Tenant shall be liable for and shall pay, at least ten (10) days
before delinquency, all taxes levied against any personal property or trade
fixtures placed by Tenant in or about the Premises. If any such taxes on
Tenant's personal property or trade fixtures are levied against Landlord or
Landlord's property or if the assessed value of the Premises is increased by the
inclusion therein of a value placed upon such personal property or trade
fixtures of Tenant and if Landlord, after written notice to Tenant, pays the
taxes based upon such increased assessment, which Landlord shall have the right
to do regardless of the validity thereof, but only under proper protest if
requested by Tenant, Tenant shall, upon demand, repay to Landlord the taxes so
levied against Landlord, or the portion of such taxes resulting from such
increase in the assessment.
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(b) If the Tenant Improvements in the Premises, whether installed,
and/or paid for by Landlord or Tenant and whether or not affixed to the real
property so as to become a part thereof, are assessed for real property tax
purposes at a valuation higher than the valuation at which Tenant Improvements
conforming to Landlord's "Project Standard," in other space in the Project are
assessed, then the real property taxes and assessment levied against the Project
by reason of such excess assessed valuation shall be deemed to be taxes levied
against personal property of Tenant and shall be governed by the provisions of
Section 10(a), above. If the records of the County Assessor are available and
sufficiently detailed to serve as a basis for determining whether said Tenant
Improvements are assessed at a higher valuation than Landlord's Project
Standard, such records shall be binding on both the Landlord and the Tenant. If
the records of the County Assessor are not available or sufficiently detailed to
serve as a basis for making said determination, the actual cost of construction
shall be used.
ARTICLE 11
CONDITION OF PREMISES
Tenant acknowledges that neither Landlord nor any agent of Landlord has
made any representation or warranty with respect to the Premises or the Project
or with respect to the suitability of either for the conduct of Tenant's
business. The taking of possession of the Premises by Tenant shall conclusively
establish that the Premises and the Project were in satisfactory condition at
such time.
ARTICLE 12
ALTERATIONS
(a) Tenant shall make no alterations, additions or improvements in or
to the Premises without Landlord's prior written consent, and then only by
contractors or mechanics approved by Landlord. Tenant agrees that there shall be
no construction or partitions or other obstructions which might interfere with
Landlord's free access to mechanical installations or service facilities of the
Building or Project or interfere with the moving of Landlord's equipment to or
from the enclosures containing said installations or facilities. All such work
shall be done at such times and in such manner as Landlord may from time to time
designate. Tenant covenants and agrees that all work done by Tenant shall be
performed in full compliance with all laws, rules, orders, ordinances,
regulations and requirements of all governmental agencies, offices, and boards
having jurisdiction, and in full compliance with the rules, regulations and
requirements of the Insurance Service Offices formerly known as the Pacific Fire
Rating Bureau, and of any similar body. Before commencing any work which shall
exceed Fifty Thousand and No/100 Dollars ($50,000), Tenant shall give Landlord
at least ten days written notice of the proposed commencement of such work and
shall, if required by Landlord, secure at Tenant's own cost and expense, a
completion and lien indemnity bond, satisfactory to Landlord, for said work.
Tenant further covenants and agrees that any mechanic's lien filed against the
Premises or against the Building or Project for work claimed to have been done
for, or materials claimed to have been furnished to, Tenant will be discharged
by Tenant, by bond or otherwise, within ten days after the filing thereof, at
the cost and expense of Tenant. All alterations, additions or improvements upon
the Premises made by either party, including (without limiting the generality of
the foregoing) all wallcovering, built-in cabinet work, paneling and the like,
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shall, unless Landlord elects otherwise, become the property of Landlord, and
shall remain upon, and be surrendered with the Premises, as a part thereof, at
the end of the term hereof, except that Landlord may, by written notice to
Tenant, require Tenant to remove all partitions, counters, railings and the like
installed by Tenant, and Tenant shall repair all damage resulting from such
removal or, at Landlord's option, shall pay to Landlord all costs arising from
such removal. It is expressly agreed that Tenant shall not be required to remove
any of the Tenant Improvements. If Tenant requests, in writing, at the time
Tenant requests permission to perform alterations, whether Landlord will require
the removal of such alterations upon expiration of the Lease Term and so long as
Tenant's written request for such consent specifies that if Landlord consents to
such alterations at such time, then Tenant shall not be required to remove such
alterations upon the expiration or termination of the Lease Term, Landlord shall
indicate in writing at the time of granting any consent to alterations, which
alterations or part thereof shall be removed by Tenant at the end of the Term
upon expiration or termination of this Lease and any failure to do so shall be
deemed that Landlord acknowledges and agrees that such consent to alterations
shall not require Tenant to remove such alterations upon surrender of the
Premises by expiration or termination of this Lease.
(b) All articles of personal property and all business and trade
fixtures, machinery and equipment, furniture and movable partitions owned by
Tenant or installed by Tenant at its expense in the Premises shall be and remain
the property of Tenant and may be removed by Tenant at any time during the lease
term when Tenant is not in default hereunder. If Tenant shall fail to remove all
of its effects from the Premises upon termination of this Lease for any cause
whatsoever, Landlord may, at its option, remove the same in any manner that
Landlord shall choose, and store said effects without liability to Tenant for
loss thereof. In such event, Tenant agrees to pay Landlord upon demand any and
all expenses incurred in such removal, including court costs and attorneys' fees
and storage charges on such effects for any length of time that the same shall
be in Landlord's possession. Landlord may, at its option, without notice, sell
said effects, or any of the same, at private sale and without legal process, for
such price as Landlord may obtain and apply the proceeds of such sale upon any
amounts due under this Lease from Tenant to Landlord and upon the expense
incident to the removal and sale of said effects.
ARTICLE 13
REPAIRS
13.1 TENANT. By entry hereunder, Tenant accepts the Premises as being
in good and sanitary order, condition and repair. Subject to Article 21 below,
Tenant, at Tenant's sole cost and expense, shall keep, maintain and preserve the
Premises in the condition and repair received by Tenant on the Commencement
Date, and shall, when and if needed, and except as otherwise expressly set forth
herein, at Tenant's sole cost and expense, make all repairs to the Premises and
every part thereof, including, without limitation, Tenant's trade fixtures,
installations, equipment and other personal property items within the Premises.
All such repairs, maintenance and replacements by Tenant shall be performed in a
good and workmanlike manner. Tenant shall, upon the expiration or sooner
termination of the Term hereof, surrender the Premises to Landlord in the same
condition as when received, usual and ordinary wear and tear excepted. Except as
otherwise expressly set forth herein, Landlord shall have no obligation to
alter, remodel, improve, repair, decorate or paint the Premises or any part
thereof. Tenant acknowledges, agrees and affirms that Landlord has made no
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representations to Tenant respecting the condition of the Premises or the
Project. Without limiting the foregoing, Tenant shall, at Tenant's sole expense,
be responsible for repairing any area damaged by Tenant, Tenant's agents,
employees, invitees and visitors. All repairs and replacements by Tenant shall
be made and performed: (a) at Tenant's cost and expense and at such time and in
such manner as Landlord may reasonably designate, (b) by contractors or
mechanics approved by Landlord, which approval shall not be unreasonably
withheld, (c) so that same shall be at least equal in quality, value and utility
to the original work or installation as of the Commencement Date, (d) in a
manner and using equipment and materials that will not interfere with or impair
the operations, use or occupation of the Building or any of the mechanical,
electrical, plumbing or other systems in the Building or the Project, and (e) in
accordance with the Rules and Regulations attached hereto as EXHIBIT D and all
Applicable Laws. In the event Tenant fails, in the reasonable judgment of
Landlord, to maintain the Premises in accordance with the obligations under the
Lease, Landlord shall have the right, but not the obligation, to enter the
Premises and perform such maintenance, repairs or refurbishing at Tenant's sole
cost and expense (including a sum for overhead to Landlord equal to five percent
(5%) of the cost of the maintenance, repairs or refurbishing). Tenant shall
maintain written records of maintenance and repairs, as required by any
Applicable Law, and shall use certified technicians to perform such maintenance
and repairs, as so required. Tenant shall promptly deliver to Landlord, upon
request, full and complete copies of all service or maintenance contracts
entered into by Tenant for the Premises. Tenant shall make repairs required
under this Section 13.1 upon the first to occur of: (a) Tenant first becomes
aware of the need for such repairs, (b) a prudent tenant would have become aware
of the need for such repairs, and (c) receipt of written notice of the need for
such repairs.
13.2 LANDLORD. Anything contained in Section 13.1 above to the contrary
notwithstanding, as items of Operating Expenses, Landlord shall repair and
maintain the structural portions of the Building, including the foundations and
roof structure. Landlord shall repair and maintain the basic plumbing,
elevators, life safety systems and other building systems, heating, ventilating,
air conditioning and electrical systems installed or furnished by Landlord, and
perform roof repair and maintenance to the Premises. Landlord shall not be
liable for any failure to make any such repairs or to perform any maintenance
unless such failure shall persist for an unreasonable time after written notice
of the need of such repairs or maintenance is given to Landlord by Tenant.
Landlord shall not be required to make any repair resulting from (i) any
alteration or modification to the Building or to mechanical equipment within the
Building performed by, or on behalf of, Tenant or to special equipment or
systems installed by, or on behalf of, Tenant, (ii) the installation, use or
operation of Tenant's property, fixtures and equipment, (iii) the moving of
Tenant's property in or out of the Building or in and about the Premises, (iv)
Tenant's use or occupancy of the Premises in violation of Section 6 of this
Lease or in a manner not contemplated by the parties at the time of the
execution of this Lease, (v) the acts or omissions of Tenant or any employees,
agents, customers, visitors, invitees, licensees, contractors, assignees or
subtenants of Tenant (individually, a "Tenant Party" and collectively, "Tenant's
Parties"), (vi) fire and other casualty, except as provided by Section 21 of
this Lease or (vii) condemnation, except as provided in Section 22 of this
Lease. Landlord shall have no obligation to make repairs under this Section 13.2
until a reasonable time after (a) Landlord first becomes aware of the need for
such repairs, or (b) receipt of written notice from Tenant of the need for such
14
repairs, whichever is earlier. There shall be no abatement of Rent during the
performance of such work. Except for the initial Tenant Improvements, if any,
provided for in the Work Letter, Landlord shall have no obligation during the
Term of this Lease to remodel, repair, improve, decorate or paint any part of
the Premises or to clean, repair or replace carpeting or window coverings.
Landlord shall not be liable to Tenant for injury or damage that may result from
any defect in the construction or condition of the Premises, nor for any damage
that may result from interruption of Tenant's use of the Premises during any
repairs by Landlord. Tenant waives any right to repair the Premises, the
Building and/or the Common Area at the expense of Landlord under any Applicable
Laws including without limitation Sections 1941 and 1942 of the California Civil
Code.
ARTICLE 14
LIENS
Tenant shall not permit any mechanic's, materialmen's or other liens to
be filed against the Building or Project, nor against Tenant's leasehold
interest in the Premises. Landlord shall have the right at all reasonable times
to post and keep posted on the Premises any notices which it deems necessary for
protection from such liens. If any such liens are filed, Landlord may, without
waiving its rights and remedies based on such breach of Tenant and without
releasing Tenant from any of its obligations, cause such liens to be released by
any means it shall deem proper, including payments in satisfaction of the claim
giving rise to such lien. Tenant shall pay to Landlord at once, upon notice by
Landlord, any sum paid by Landlord to remove such liens, together with interest
at the maximum rate per annum permitted by law from the date of such payment by
Landlord.
ARTICLE 15
ENTRY BY LANDLORD AND RESERVED RIGHTS OF LANDLORD
Landlord shall at any and all times after not less than twenty-four
(24) hours prior written notice to Tenant (except in the case of an emergencies)
have the right to enter the Premises for any lawful reason and/or to undertake
the following, without limitation: to inspect the Premises; to supply janitorial
service and any service to be provided by Landlord to Tenant hereunder; to show
the Premises to prospective purchasers or tenants; to post notices of
nonresponsibility, to alter, improve or repair the Premises or any other portion
of the Building or Project; to install, use, maintain, repair, alter, relocate
or replace any pipes, ducts, conduits, wires, equipment or other facilities in
the Common Areas or the Building or Project; to grant easements on the Project,
dedicate for public use portions thereof and record covenants, conditions and
restrictions affecting the Project and/or amendments to existing CC&Rs which do
not unreasonably interfere with Tenant's use of the Premises; change the name of
the Building or Project; affix reasonable signs and displays; and, during the
last nine (9) months of the Term, place signs for the rental of and show the
Premises to prospective tenants, all without being deemed guilty of any eviction
of Tenant and without abatement of Rent. Landlord may, in order to carry out any
of the foregoing purposes, erect scaffolding and other necessary structures
where required by the character of the work to be performed. Tenant hereby
waives any claim for damages for any injury or inconvenience to or interference
with Tenant's business, any loss of occupancy or quiet enjoyment of the
Premises, and any other loss in, upon and about the Premises. Landlord shall at
15
all times have and retain a key with which to unlock all doors in the Premises.
Landlord shall have the right to use any and all means which Landlord may deem
proper to open said doors in an emergency in order to obtain entry to the
Premises. Any entry to the Premises obtained by Landlord by any of said means,
or otherwise, shall not be construed or deemed to be a forcible or unlawful
entry into the Premises, or any eviction of Tenant from the Premises or any
portion thereof, and any damages caused on account thereof shall be paid by
Tenant. It is understood and agreed that no provision of this Lease shall be
construed as obligating Landlord to perform any repairs, alterations or
decorations except as otherwise expressly agreed herein by Landlord.
ARTICLE 16
UTILITIES AND SERVICES
Provided that Tenant is not in default under this Lease, Landlord
agrees to furnish or cause to be furnished to the Premises the utilities and
services described in the Standards for Utilities and Services, attached hereto
as EXHIBIT C, subject to the conditions and in accordance with the standards set
forth therein. Landlord's failure to furnish any of the foregoing items when
such failure is caused by:
(i) Accident, breakage, or repairs (except as otherwise set
forth in this Article 16),
(ii) Strikes, lockouts or other labor disturbance or labor
dispute of any character,
(iii) Governmental regulation, moratorium or other
governmental action,
(iv) Inability despite the exercise of reasonable diligence
to obtain electricity, water or fuel, or by
(v) Any other cause beyond Landlord's reasonable control
(except as otherwise set forth in this Article 16),
shall not result in any liability to Landlord. Except as otherwise set forth in
this Article 16, Tenant shall not be entitled to any abatement or reduction of
rent by reason of such failure, no eviction of Tenant shall result from such
failure and Tenant shall not be relieved from the performance of any covenant or
agreement in this Lease because of such failure. In the event of any failure,
stoppage or interruption thereof, Landlord shall diligently attempt to resume
service promptly. In the event failure or interruption of the utilities services
are primarily caused by a grossly negligent act on the part of Landlord or its
employees, agents or contractors, Tenant's rent shall xxxxx each day after the
fifth (5th) consecutive day (counting only those days that Tenant would have
otherwise been open and operating from the Premises and only for those days
which Tenant cannot operate from the Premises as a result of the interruption,
cessation or interference with such utility service) that such failure or
interruption continues.
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ARTICLE 17
BANKRUPTCY
If Tenant shall file a petition in bankruptcy under any provision of
the Bankruptcy Code as then in effect, or if Tenant shall be adjudicated a
bankrupt in involuntary bankruptcy proceedings and such adjudication shall not
have been vacated within thirty days from the date thereof, or if a receiver or
trustee shall be appointed of Tenant's property and the order appointing such
receiver or trustee shall not be set aside or vacated within thirty days after
the entry thereof, or if Tenant shall assign Tenant's estate or effects for the
benefit of creditors, or if this Lease shall, by operation of law or otherwise,
pass to any person or persons other than Tenant, then in any such event Landlord
may terminate this Lease, if Landlord so elects, with or without notice of such
election and with or without entry or action by Landlord. In such case,
notwithstanding any other provisions of this Lease, Landlord, in addition to any
and all rights and remedies allowed by law or equity, shall, upon such
termination, be entitled to recover damages in the amount provided in Article 23
hereof. Neither Tenant nor any person claiming through or under Tenant or by
virtue of any statute or order of any court shall be entitled to possession of
the Premises but shall surrender the Premises to Landlord. Nothing contained
herein shall limit or prejudice the right of Landlord to recover damages by
reason of any such termination equal to the maximum allowed by any statute or
rule of law in effect at the time when, and governing the proceedings in which,
such damages are to be proved; whether or not such amount is greater, equal to,
or less than the amount of damages recoverable under the provisions of this
Article 17.
ARTICLE 18
INDEMNIFICATION
(a) Except to the extent of Landlord's liability set forth in Article
18(b) below, Tenant shall indemnify, protect, defend (by counsel reasonably
acceptable to Landlord) and hold harmless Landlord and Landlord's affiliated
entities, and each of their respective members, managers, partners, directors,
officers, employees, shareholders, lenders, agents, contractors, successors and
assigns from and against any and all claims, judgments, causes of action,
damages, penalties, costs, liabilities, and expenses, including all costs,
attorneys' fees, expenses and liabilities incurred in the defense of any such
claim or any action or proceeding brought thereon, arising at any time during or
after the Term as a result (directly or indirectly) of or in connection with (a)
any default in the performance of any obligation on Tenant's part to be
performed under the terms of this Lease, or (b) Tenant's use of the Premises,
the conduct of Tenant's business or any activity, work or things done, permitted
or suffered by Tenant or any Tenant Party in or about the Premises, the
Building, the Common Area or other portions of the Project. The foregoing
indemnity obligation shall include, without limitation, any claim by any Tenant
Party for any injury or illness caused or alleged to be caused in whole or in
part by any furniture, carpeting, draperies, stoves or any other materials on
the Premises. Tenant, as a material part of the consideration to Landlord,
hereby assumes all risk of damage to property or injury to person in, upon or
about the Premises from any cause whatsoever. The obligations of Tenant under
this Article 18 shall survive the termination of this Lease with respect to any
claims or liability arising prior to such termination.
17
(b) Landlord shall indemnify, protect, defend (by counsel reasonably
acceptable to Tenant) and hold harmless Tenant and Tenant's affiliated entities,
and each of their respective members, managers, partners, directors, officers,
employees, shareholders, lenders, agents, contractors, successors and assigns
from and against any and all losses based on third party claims, judgments,
causes of action, damages, penalties, costs, liabilities, and expenses,
including all costs, reasonable attorneys' fees, expenses and liabilities
incurred in the defense of any such claim or any action or proceeding brought
thereon, arising at any time during the Term as a result of or in connection
with any activity permitted or suffered by Landlord in or about the Building,
the Common Area or other portions of the Project, but excluding the Premises, in
each case to the extent caused by the gross negligence or willful misconduct of
Landlord. Under no circumstances shall Landlord be liable for punitive or
consequential damages. The obligations of Landlord and Tenant under this Article
18 shall survive the termination of this Lease with respect to any claims or
liability arising prior to such termination.
ARTICLE 19
DAMAGE TO TENANT'S PROPERTY
Landlord or its agents shall not be liable for (i) any damage to any
property entrusted to employees of the Project, (ii) loss or damage to any
property by theft or otherwise, (iii) any injury or damage to property resulting
from fire, explosion, falling plaster, steam, gas, electricity, water or rain
which may leak from any part of the Project or from the pipes, appliances or
plumbing work therein or from the roof, street or sub-surface or from any other
place or resulting from dampness or from any other cause whatsoever. Landlord or
its agents shall not be liable for interference with light or other incorporeal
hereditaments, nor shall Landlord be liable for any damage caused by latent
defect in the Premises or in the Project. Tenant shall give prompt notice to
Landlord in case of fire or accidents in the Premises or in the Project or of
defects therein or in the fixtures or equipment.
ARTICLE 20
INSURANCE
(a) Tenant shall, during the term hereof and any other period of
occupancy, at its sole cost and expense, keep in full force and effect the
following insurance:
(i) Standard form property insurance insuring against the
perils of fire, extended coverage, vandalism, malicious mischief, special
extended coverage ("All-Risk") and sprinkler leakage. This insurance policy
shall be upon all property owned by Tenant, for which Tenant is legally liable
or that was installed at Tenant's expense, and which is located in the Project
including, without limitation, furniture, fittings, installations, fixtures
(other than Tenant improvements installed by Landlord), and any other personal
property in an amount not less than ninety percent (90%) of the full replacement
cost thereof. In the event that there shall be a dispute as to the amount which
comprises full replacement cost, the decision of Landlord or any mortgagees of
Landlord shall be conclusive. This insurance policy shall also be upon direct or
indirect loss of Tenant's earnings attributable to Tenant's inability to use
fully or obtain access to the Premises or Project in an amount as will properly
reimburse Tenant. Such policy shall name Landlord and any mortgagees of Landlord
as insured parties, as their respective interests may appear.
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(ii) Commercial General Liability Insurance insuring Tenant
against any liability arising out of the lease, use, occupancy or maintenance of
the Premises and all areas appurtenant thereto. Such insurance shall be in the
amount of $2,000,000 Combined Single Limit for injury to, or death of one or
more persons in an occurrence, and for damage to tangible property (including
loss of use) in an occurrence, with such liability amount to be adjusted from
year to year to reflect increases in the Consumer Price Index. The policy shall
insure the hazards of premises and operation, independent contractors,
contractual liability (covering the Indemnity contained in Section 18 hereof)
and shall (1) name Landlord as an additional insured, and (2) contain a cross
liability provision, and (3) contain a provision that "the insurance provided
the Landlord hereunder shall be primary and non-contributing with any other
insurance available to the Landlord."
(iii) Workers' Compensation and Employer's Liability insurance
(as required by state law).
(iv) Rental loss insurance in an amount equal to all unpaid
Rent which would be due for a period of eighteen (18) months under the Lease.
The amount of such rental loss insurance shall be increased from time to time
during the Term as and when the Rent increases (including estimated increases in
Additional Rent as reasonably determined by Landlord).
(v) Tenant shall obtain and maintain loss of income and extra
expense insurance in amounts as will reimburse Tenant for direct or indirect
loss of earnings attributable to all peril commonly insured against by prudent
lessees in the business of Tenant or attributable to prevention of access to the
Premises as a result of such perils.
(vi) Any other form or forms of insurance as Tenant or
Landlord or any mortgagees of Landlord may reasonably require from time to time
in form, in amounts and for insurance risks against which a prudent tenant would
protect itself.
(b) Landlord shall maintain "all risks" coverage as broad as the
current ISO Special Form policy, covering the buildings within the Project, in
an amount of not less than the replacement cost thereof. Landlord shall also
maintain Commercial General Liability insurance with a $1 million per single
occurrence and $2 million per aggregate limit.
(c) All policies shall be written in a form satisfactory to Landlord
and shall be taken out with insurance companies holding a General Policyholders
Rating of "A" and a Financial Rating of "X" or better, as set forth in the most
current issue of Bests Insurance Guide. Within ten (10) days after the execution
of this Lease, Tenant shall deliver to Landlord copies of policies or
certificates evidencing the existence of the amounts and forms of coverage
satisfactory to Landlord. No such policy shall be cancelable or reducible in
coverage except after thirty (30) days prior written notice to Landlord. Tenant
shall, within ten days prior to the expiration of such policies, furnish
Landlord with renewals or "binders" thereof, or Landlord may order such
insurance and charge the cost thereof to Tenant as additional rent. If Landlord
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obtains any insurance that is the responsibility of Tenant under this section,
Landlord shall deliver to Tenant a written statement setting forth the cost of
any such insurance and showing in reasonable detail the manner in which it has
been computed. The failure of any insurance policy to include such waiver clause
or endorsement shall not affect the validity of this Lease.
(d) Landlord and Tenant each hereby waive on behalf of any insurer
providing insurance to such party required to be carried hereunder, any right of
subrogation which such insurer might otherwise acquire against the other party
or the shareholders, partners, officers, directors, or employees of either party
by virtue of losses to Landlord or Tenant. Each party hereto also expressly
waives any and every claim which arises or may arise in such party's favor
against the other party and such party's shareholders, partners, officers, and
employees during the Lease Term for any and all loss of or damage to any of such
party's property, located within or upon or constituting a part of, the Premises
or Building, which loss or damage is caused by a peril required by this Lease to
be covered by the insurance of the party incurring the loss or, if greater, to
the extent of the recovery under an insurance policy covering the party
incurring the loss. Inasmuch as the mutual waivers in this Section 20(d) will
preclude the assignment of any claim by way of subrogation (or otherwise) to an
insurance company (or any other party), each party shall promptly give to each
insurance company which has issued to such party policies of property insurance,
written notice of the terms of the mutual waivers of subrogation and to have
such insured policies properly endorsed, if necessary, to provide for the waiver
of subrogation and to prevent the invalidation of the insurance coverages by
reason of such waiver.
ARTICLE 21
DAMAGE OR DESTRUCTION
21.1 CASUALTY. If the Premises or Building should be damaged or
destroyed by fire or other casualty, Tenant shall give immediate written notice
to Landlord. Within thirty (30) days after receipt from Tenant of such written
notice, Landlord shall notify Tenant whether the necessary repairs can
reasonably be made: (a) within sixty (60) days; (b) in more than sixty (60) days
but in less than one hundred fifty (150) days; or (c) in more than one hundred
fifty (150) days, in each case after the date of the issuance of permits for the
necessary repair or reconstruction of the portion of the Building or Premises
which was damaged or destroyed.
21.1.1 LESS THAN 60 DAYS. If the Premises or Building should
be damaged only to such extent that rebuilding or repairs can reasonably be
completed within sixty (60) days after the issuance of permits for the necessary
repair or reconstruction of the portion of the Building or Premises which was
damaged or destroyed, this Lease shall not terminate and, provided that
insurance proceeds are available to pay for the full repair of all damage,
Landlord shall repair the Premises, except that Landlord shall not be required
to rebuild, repair or replace Tenant's Property which may have been placed in,
on or about the Premises by or for the benefit of Tenant. If Tenant is required
to vacate all or a portion of the Premises during Landlord's repair thereof, the
Base Rent payable hereunder shall be abated proportionately on the basis of the
size of the area of the Premises that is damaged (i.e., the number of square
feet of floor area of the Premises that is damaged compared to the total square
footage of the floor area of the Premises) from the date Tenant vacates all or a
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portion of the Premises that was damaged only to the extent rental abatement
insurance proceeds are received by Landlord and only during the period the
Premises are unfit for occupancy.
21.1.2 GREATER THAN 60 DAYS. If the Premises or Building
should be damaged only to such extent that rebuilding or repairs can reasonably
be completed in more than sixty (60) days but in less than one hundred fifty
(150) days after the issuance of permits for the necessary repair or
reconstruction of the portion of the Building or Premises which was damaged or
destroyed, then Landlord shall have the option of: (a) terminating the Lease
effective upon the occurrence of such damage, in which event the Base Rent shall
be abated from the date Tenant vacates the Premises; or (b) electing to repair
the Premises, provided insurance proceeds are available to pay for the full
repair of all damage (except that Landlord shall not be required to rebuild,
repair or replace Tenant's Property). If Tenant is required to vacate all or a
portion of the Premises during Landlord's repair thereof, the Base Rent payable
hereunder shall be abated proportionately on the basis of the size of the area
of the Premises that is damaged (i.e., the number of square feet of floor area
of the Premises that is damaged compared to the total square footage of the
floor area of the Premises) from the date Tenant vacates all or a portion of the
Premises that was damaged only to the extent rental abatement insurance proceeds
are received by Landlord and only during the period the Premises are unfit for
occupancy. In the event that Landlord should fail to substantially complete such
repairs within one hundred fifty (150) days after the issuance of permits for
the necessary repair or reconstruction of the portion of the Building or
Premises which was damaged or destroyed (such period to be extended for delays
caused by Tenant or because of any items of Force Majeure (as hereinafter
defined), and Tenant has not reoccupied the Premises, Tenant shall have the
right, as Tenant's exclusive remedy, within ten (10) days after the expiration
of such one hundred fifty (150) day period, and provided that such repairs have
not been substantially completed within such ten (10) day period, to terminate
this Lease by delivering written notice to Landlord as Tenant's exclusive
remedy, whereupon all rights of Tenant hereunder shall cease and terminate
thirty (30) days after Landlord's receipt of such notice.
21.1.3 GREATER THAN 150 DAYS. If the Premises or Building
should be so damaged that rebuilding or repairs cannot be completed within one
hundred fifty (150) days after the issuance of permits for the necessary repair
or reconstruction of the portion of the Building or Premises which was damaged
or destroyed, either Landlord or Tenant may terminate this Lease by giving
written notice within ten (10) days after notice from Landlord specifying such
time period of repair; and this Lease shall terminate and the Rent shall be
abated from the date Tenant vacates the Premises. In the event that neither
party elects to terminate this Lease, Landlord shall commence and prosecute to
completion the repairs to the Building or Premises, provided insurance proceeds
are available to pay for the repair of all damage (except that Landlord shall
not be required to rebuild, repair or replace Tenant's Property). If Tenant is
required to vacate all or a portion of the Premises during Landlord's repair
thereof, the Base Rent payable hereunder shall be abated proportionately on the
basis of the size of the area of the Premises that is damaged (i.e., the number
of square feet of floor area of the Premises that is damaged compared to the
total square footage of the floor area of the Premises), from the date Tenant
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vacates all or a portion of the Premises that was damaged only to the extent
rental abatement insurance proceeds are received by Landlord and only during the
period that the Premises are unfit for occupancy.
21.1.4 CASUALTY DURING THE LAST YEAR OF THE LEASE TERM.
Notwithstanding any other provisions hereof, if the Premises or the Building
shall be damaged within the last year of the Lease Term, and if the cost to
repair or reconstruct the portion of the Building or the Premises which was
damaged or destroyed shall exceed $25,000, then, irrespective of the time
necessary to complete such repair or reconstruction, Landlord shall have the
right, in its sole and absolute discretion, to terminate the Lease effective
upon the occurrence of such damage, in which event the Rent shall be abated from
the date Tenant vacates the Premises. Notwithstanding any other provisions
hereof, if the Premises shall be damaged within the last year of the Lease Term,
and if the cost to repair or reconstruct the portion of the Premises which was
damaged or destroyed shall exceed $25,000, then, irrespective of the time
necessary to complete such repair or reconstruction, Tenant shall have the
right, in its sole and absolute discretion, to terminate the Lease effective
upon the occurrence of such damage, in which event the Rent shall be abated from
the date Tenant vacates the Premises. The foregoing right shall be in addition
to any other right and option of Landlord under this Article 21.
21.2 UNINSURED CASUALTY. If the Lease is not terminated, as set forth
above, Tenant shall be responsible for and shall pay to Landlord Tenant's share
of any deductible or retention amount payable under the property insurance for
the Building (but for earthquake insurance retention or deductible, subject to
the Earthquake Cap). In the event that the Premises or any portion of the
Building is damaged to the extent Tenant is unable to use the Premises and such
damage is not covered by insurance proceeds received by Landlord or in the event
that the holder of any indebtedness secured by the Premises requires that the
insurance proceeds be applied to such indebtedness or the Premises cannot be
restored within sixty (60) days of the issuance of permits for the necessary
repair or reconstruction, then Landlord shall have the right at Landlord's
option, in Landlord's sole and absolute discretion, either (i) to repair such
damage as soon as reasonably possible at Landlord's expense, or (ii) to give
written notice to Tenant within thirty (30) days after the date of the
occurrence of such damage of Landlord's intention to terminate this Lease as of
the date of the occurrence of such damage. In the event Landlord elects to
terminate this Lease, Tenant shall have the right within ten (10) days after
receipt of such notice to give written notice to Landlord of Tenant's commitment
to pay the cost of repair of such damage, in which event this Lease shall
continue in full force and effect, and Landlord shall make such repairs as soon
as reasonably possible subject to the following conditions: Tenant shall deposit
with Landlord Landlord's estimated cost of such repairs not later than five (5)
business days prior to Landlord's commencement of the repair work. If the cost
of such repairs exceeds the amount deposited, Tenant shall reimburse Landlord
for such excess cost within ten (10) business days after receipt of an invoice
from Landlord. Any amount deposited by Tenant in excess of the cost of such
repairs shall be refunded within thirty (30) days of Landlord's final payment to
Landlord's contractor. If Tenant does not give such notice within the ten (10)
day period, or fails to make such deposit as required, Landlord shall have the
right, in Landlord's sole and absolute discretion, to immediately terminate this
Lease to be effective as of the date of the occurrence of the damage. If Tenant
is reasonably required to vacate all or a portion of the Premises during
Landlord's repair thereof, the Base Rent and Additional Rent payable hereunder
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shall be abated proportionately on the basis of the size of the area of the
Premises that is damaged (i.e., the number of square feet of floor area of the
Premises that is damaged compared to the total square footage of the floor area
of the Premises), from the date Tenant vacates all or a portion of the Premises
that was damaged only during the period that such portion of the Premises are
unfit for occupancy. In any event, if the repairs cannot be completed within one
hundred fifty (150) days after such damage, Tenant may terminate this Lease by
giving written notice within ten (10) days after notice from Landlord specifying
such time period of repair; and this Lease shall terminate and the Rent shall be
abated from the date Tenant vacates the Premises.
21.3 WAIVER. With respect to any damage or destruction which Landlord
is obligated to repair or may elect to repair, Tenant waives all rights to
terminate this Lease pursuant to rights otherwise presently or hereafter
accorded by law, including without limitation any rights granted under Section
1932, subdivision 2, and Section 1933, of the California Civil Code.
ARTICLE 22
EMINENT DOMAIN
22.1 TOTAL CONDEMNATION. If all of the Premises is condemned by eminent
domain, inversely condemned or sold under threat of condemnation for any public
or quasi-public use or purpose ("Condemned"), this Lease shall terminate as of
the earlier of the date the condemning authority takes title to or possession of
the Premises, and Rent shall be adjusted to the date of termination.
22.2 PARTIAL CONDEMNATION. If any portion of the Premises or the
Building is Condemned and such partial condemnation materially impairs Tenant's
ability to use the Premises for Tenant's business as reasonably determined by
Tenant, Landlord shall have the option in Landlord's sole and absolute
discretion of either (i) relocating Tenant to comparable space within the
Project which is reasonably acceptable to Tenant or (ii) terminating this Lease
as of the earlier of the date title vests in the condemning authority or as of
the date an order of immediate possession is issued and Rent shall be adjusted
to the date of termination. If such partial condemnation does not materially
impair Tenant's ability to use the Premises for the business of Tenant, Landlord
shall promptly restore the Premises to the extent of any condemnation proceeds
recovered by Landlord, excluding the portion thereof lost in such condemnation,
and this Lease shall continue in full force and effect except that after the
date of such title vesting or order of immediate possession Rent shall be
adjusted as reasonably determined by Landlord.
22.3 AWARD. If the Premises are wholly or partially Condemned, Landlord
shall be entitled to the entire award paid for such condemnation, and Tenant
waives any claim to any part of the award from Landlord or the condemning
authority; provided, however, Tenant shall have the right to recover from the
condemning authority such compensation as may be separately awarded to Tenant.
No condemnation of any kind shall be construed to constitute an actual or
constructive eviction of Tenant or a breach of any express or implied covenant
of quiet enjoyment. Tenant hereby waives the effect of Sections 1265.120 and
1265.130 of the California Code of Civil Procedure.
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22.4 TEMPORARY CONDEMNATION. In the event of a temporary condemnation
not extending beyond the Term, this Lease shall remain in effect, Tenant shall
continue to pay Rent and Tenant shall receive any award made for such
condemnation except damages to any of Landlord's property. If a temporary
condemnation that materially impairs Tenant's ability to use the Premises for
Tenant's business and is for a period which extends beyond the Term, this Lease
shall terminate, at Tenant's election, as of the date of initial occupancy by
the condemning authority and any such award shall be distributed in accordance
with the preceding section.
22.5 RENT ABATEMENT. During any period in which Tenant's ability to use
the Premises for Tenant's business is materially impaired as a result of a
condemnation, the Base Rent and Additional Rent payable hereunder shall be
abated proportionately on the basis of the size of the area of the Premises that
is damaged (i.e., the number of square feet of floor area of the Premises that
is damaged compared to the total square footage of the floor area of the
Premises), from the date Tenant vacates all or a portion of the Premises that
was condemned only during the period that such portion of the Premises are unfit
for occupancy.
ARTICLE 23
DEFAULTS AND REMEDIES
23.1 EVENT OF DEFAULT. The occurrence of any one or more of the
following events shall constitute a default (an "Event of Default") hereunder by
Tenant:
(i) The vacation or abandonment of the Premises by Tenant.
Abandonment is herein defined to include, but is not limited to, any absence by
Tenant from the Premises for five (5) business days or longer.
(ii) The failure by Tenant to make any payment of rent or
additional rent or any other payment required to be made by Tenant hereunder, as
and when due.
(iii) The failure by Tenant to observe or perform any of the
express or implied covenants or provisions of this Lease to be observed or
performed by Tenant, other than as specified in Section 23.1(a)(i) or (ii)
above.
(iv) (1) The making by Tenant of any general assignment for
the benefit of creditors; (2) the filing by or against Tenant of a petition to
have Tenant adjudged a bankrupt or 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 thirty (30) days); (3) 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 thirty (30) days; or (4) 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 thirty days.
(v) The making of any material misrepresentation or omission
by Tenant or any successor in interest of Tenant in any materials delivered by
or on behalf of Tenant to Landlord or Landlord's lender pursuant to this Lease.
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(vi) The occurrence of an Event of Default set forth in any of
the foregoing clauses (iv) or (v) with respect to any guarantor of this Lease,
if applicable.
(vii) At the option of Landlord, in its sole and absolute
discretion, if Tenant occupies any other space in the Project (the "Other
Premises", provided that the Premises and the Other Premises are both owned by
Landlord at the time of the default), whether by lease, sublease or assignment
(in any case, an "Occupancy Agreement"), the occurrence of an Event of Default
hereunder shall also be a default or event of default under the Occupancy
Agreement and a default or event of default under such Occupancy Agreement shall
be an Event of Default hereunder.
(viii) Any failure of Tenant or any guarantor of this Lease
to comply with the terms of Section 49(b) hereof.
23.2. REMEDIES.
23.2.1 TERMINATION. In the event of the occurrence of any
Event of Default, Landlord shall have the right to give a written termination
notice to Tenant pursuant to California Code of Civil Procedure Section 1161, et
seq. and, on the date specified in such notice, this Lease shall terminate
unless on or before such date all arrears of Rent and all other sums payable by
Tenant under this Lease and all costs and expenses incurred by or on behalf of
Landlord hereunder shall have been paid by Tenant and all other Events of
Default at the time existing shall have been fully remedied to the satisfaction
of Landlord.
23.2.2 REPOSSESSION. Following termination, without prejudice
to other remedies Landlord may have, Landlord may (i) peaceably re-enter the
Premises upon voluntary surrender by Tenant or remove Tenant therefrom and any
other persons occupying the Premises, using such legal proceedings as may be
available; (ii) repossess the Premises or relet the Premises or any part thereof
for such term (which may be for a term extending beyond the Term), at such
rental and upon such other terms and conditions as Landlord in Landlord's sole
discretion shall determine, with the right to make reasonable alterations and
repairs to the Premises; and (iii) remove all personal property therefrom.
23.2.3 UNPAID RENT/SUMS EXPENDED BY LANDLORD. Landlord shall
have all the rights and remedies of a landlord provided by Applicable Law,
including the right to recover from Tenant: (a) the worth, at the time of award,
of the unpaid Rent that had been earned at the time of termination, (b)the
worth, at the time of award, of the amount by which the unpaid Rent that would
have been earned after the date of termination until the time of award exceeds
the amount of loss of rent that Tenant proves could have been reasonably
avoided, (c) the worth, at the time of award, of the amount by which the unpaid
Rent for the balance of the Term after the time of award exceeds the amount of
the loss of rent that Tenant proves could have been reasonably avoided, (d) all
unamortized free rent, if any, (e) any and all unamortized sums expended by
Landlord for tenant improvements and leasing commissions, and (f) any other
amount, and court costs, necessary to compensate Landlord for all detriment
proximately caused by Tenant's default. The phrase "worth, at the time of
award," as used in (a) and (b) above, shall be computed at the Applicable
Interest Rate, and as used in (c) above, shall be computed by discounting such
25
amount at the discount rate of the Federal Reserve Bank of San Francisco at the
time of award plus one percent (1%). The items referenced in (d) and (e) shall
be amortized on a straight line basis over the length of the Term of this Lease.
23.2.4 CONTINUATION. Even though an Event of Default may have
occurred, this Lease shall continue in effect for so long as Landlord does not
terminate Tenant's right to possession; and Landlord may enforce all of
Landlord's rights and remedies under this Lease, including the remedy described
in California Civil Code Section 1951.4 ("lessor" may continue the Lease in
effect after "lessee's" breach and abandonment and recover Rent as it becomes
due, if "lessee" has the right to sublet or assign, subject only to reasonable
limitations) to recover Rent as it becomes due. Landlord, without terminating
this Lease, may, during the period Tenant is in default, enter the Premises and
relet the same, or any portion thereof, to third parties for Tenant's account
and Tenant shall be liable to Landlord for all costs Landlord incurs in
reletting the Premises, including, without limitation, brokers' commissions,
expenses of remodeling the Premises and like costs. Reletting may be for a
period shorter or longer than the remaining Term. Tenant shall continue to pay
the Rent on the date the same is due. No act by Landlord hereunder, including
acts of maintenance, preservation or efforts to lease the Premises or the
appointment of a receiver upon application of Landlord to protect Landlord's
interest under this Lease, shall terminate this Lease unless Landlord notifies
Tenant that Landlord elects to terminate this Lease. In the event that Landlord
elects to relet the Premises, the rent that Landlord receives from reletting
shall be applied to the payment of, first, any indebtedness from Tenant to
Landlord other than Base Rent and Additional Rent; second, all costs, including
maintenance, incurred by Landlord in reletting; and, third, Base Rent and
Additional Rent under this Lease. After deducting the payments referred to
above, any sum remaining from the rental Landlord receives from reletting shall
be held by Landlord and applied in payment of future Rent as Rent becomes due
under this Lease. In no event shall Tenant be entitled to any excess rent
received by Landlord. If, on the date Rent is due under this Lease, the rent
received from the reletting is less than the Rent due on that date, Tenant shall
pay to Landlord, in addition to the remaining Rent due, all costs, including
maintenance, which Landlord incurred in reletting the Premises that remain after
applying the rent received from reletting as provided hereinabove. So long as
this Lease is not terminated, Landlord shall have the right to remedy any
default of Tenant, to maintain or improve the Premises, to cause a receiver to
be appointed to administer the Premises and new or existing subleases and to add
to the Rent payable hereunder all of Landlord's reasonable costs in so doing,
including without limitation attorney's fees and costs, with interest at the
Applicable Interest Rate from the date of such expenditure. Landlord shall have
no duty to relet the Premises so long as it has other unleased space available
in the Project.
23.2.5 CUMULATIVE. Each right and remedy of Landlord provided
for herein or now or hereafter existing at law, in equity, by statute or
otherwise shall be cumulative and shall not preclude Landlord from exercising
any other rights or remedies provided for in this Lease or now or hereafter
existing at law or in equity, by statute or otherwise. No payment by Tenant of a
lesser amount than the Rent nor any endorsement on any check or letter
accompanying any check or payment as Rent shall be deemed an accord and
satisfaction of full payment of Rent; and Landlord may accept such payment
without prejudice to Landlord's right to recover the balance of such Rent or to
pursue other remedies.
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ARTICLE 24
ASSIGNMENT AND SUBLETTING
24.1 Tenant shall not voluntarily assign or encumber its interest in
this Lease or in the Premises, or sublease all or any part of the Premises, or
allow any other person or entity to occupy or use all or any part of the
Premises, without first obtaining Landlord's prior written consent. Any sublease
shall be in a form reasonably approved by Landlord. Any assignment, encumbrance
or sublease without Landlord's prior written consent shall be voidable, at
Landlord's election, and shall constitute a default and at the option of the
Landlord shall result in a termination of this Lease. No consent to assignment,
encumbrance, or sublease shall constitute a further waiver of the provisions of
this section. Tenant shall notify Landlord in writing of Tenant's intent to
sublease, encumber or assign this Lease and Landlord shall, within fifteen (15)
business days of receipt of such written notice, elect one of the following:
(a) Consent to such proposed assignment, encumbrance or
sublease;
(b) Refuse such consent, which refusal shall be on reasonable
grounds; or
(c) Recapture the entire Premises, or at Lender's election,
such part as Tenant desires to sublease or assign, in the sole and absolute
discretion of Landlord.
24.2 As a condition for granting its consent to any assignment,
encumbrance or sublease, twenty (20) days prior to any anticipated assignment or
sublease Tenant shall give Landlord and Landlord's lender written notice (the
"Assignment Notice"), which shall set forth the name, address and business of
the proposed assignee or sublessee, information (including references)
concerning the character, ownership, and financial condition of the proposed
assignee or sublessee, and the Assignment Date, any ownership or commercial
relationship between Tenant and the proposed assignee or sublessee, and the
consideration of all other material terms and conditions of the proposed
assignment or sublease, all in such detail as Landlord shall reasonably require.
If Landlord reasonably requests additional detail, the Assignment Notice shall
not be deemed to have been received until Landlord receives such additional
detail, and Landlord may withhold consent to any assignment or sublease until
such additional detail is provided to it. Further, Landlord may require that the
sublessee or assignee remit directly to Landlord on a monthly basis, all monies
due to Tenant by said assignee or sublessee.
24.3 The consent by Landlord to any assignment or subletting shall not
be construed as relieving Tenant or any assignee of this Lease or sublessee of
the Premises from obtaining the express written consent of Landlord to any
further assignment or subletting or as releasing Tenant or any assignee or
sublessee of Tenant from any liability or obligation hereunder whether or not
then accrued. Regardless of whether or not Landlord shall consent to an
assignment or sublease, Tenant shall pay Landlord all of Landlord's attorneys'
fees and administrative costs incurred in connection with evaluating the
Assignment Notice immediately upon demand. This section shall be fully
applicable to all further sales, hypothecations, transfers, assignments and
27
subleases of any portion of the Premises by any successor or assignee of Tenant,
or any sublessee of the Premises.
24.4 As used in this section, the subletting of substantially all of
the Premises for substantially all of the remaining term of this Lease shall be
deemed an assignment rather than a sublease. The assignment, sale or transfer of
a twenty-five (25%) interest in Tenant shall be deemed an assignment requiring
Landlord's consent hereunder.
Notwithstanding the foregoing, Landlord shall consent to the
assignment, sale or transfer if the Assignment Notice states that Tenant desires
to assign the Lease to any entity into which Tenant (i) wholly owns or controls
Tenant; (ii) is wholly owned or controlled by Tenant; (iii) is under common
ownership or control with Tenant; or (iv) into which Tenant or any of the
foregoing parties is merged, consolidated or reorganized, or to which all or
substantially all of Tenant's assets or any such other party's assets are sold
(a "Permitted Transferee"), provided that the assignee first executes,
acknowledges and delivers to Landlord an agreement whereby the assignee agrees
to be bound by all of the covenants and agreements in this Lease which Tenant
has agreed to keep, observe or perform, that the assignee agrees that the
provisions of this section shall be binding upon it as if it were the original
Tenant hereunder and that the assignee shall have a net worth (determined in
accordance with generally accepted accounting principles consistently applied)
immediately after such assignment which is at least equal to the lesser of: (i)
Five Million and No/100 Dollars ($5,000,000) or (ii) the net worth (as so
determined) of Tenant: (1) at the commencement of this Lease or (2) immediately
before such assignment; whichever is greater.
24.5 Except as provided above, Landlord's consent to any sublease shall
not be unreasonably withheld. A condition to such consent shall be delivery by
Tenant to Landlord of a true copy of the sublease as reasonably approved by
Landlord. If for any proposed assignment or sublease Tenant receives rent or
other consideration, either initially or over the term of the assignment or
sublease, in excess of the Rent called for hereunder (as such Rent is adjusted
pursuant to Section 24.1), or, in case of the sublease of a portion of the
Premises, in excess of such rent fairly allocable to such portion, after
appropriate adjustments to assure that all other payments called for hereunder
are taken into account, Tenant shall pay to Landlord as Additional Rent
hereunder seventy five percent (75%) of the excess of each such payment of rent
or other consideration received by Tenant promptly after its receipt. Landlord's
waiver or consent to any assignment or subletting shall not relieve Tenant from
any obligation under this lease. The parties intend that the preceding sentence
shall not apply to any sublease rentals respecting a portion of the Premises
that during the entire term of this Lease was not occupied by Tenant for its own
use, but was always subleased by Tenant and/or kept vacant. For the purpose of
this section, the Rent for each square foot of floor space in the Premises shall
be deemed equal.
ARTICLE 25
SUBORDINATION; MORTGAGEE PROTECTION
25.1 SUBORDINATION. This Lease shall be subject and subordinate to all
ground leases, master leases and the lien of all mortgages and deeds of trust
which now or hereafter affect the Premises or the Project or Landlord's interest
therein, the CC&Rs and all amendments thereto, all without the necessity of
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Tenant's executing further instruments to effect such subordination. If
requested, Tenant shall execute and deliver to Landlord within ten (10) days
after Landlord's request whatever documentation that may reasonably be required
to further effect the provisions of this section including, without limitation,
a Subordination, Nondisturbance and Attornment Agreement in such form as may be
required by Landlord's lender. Should any holder of a mortgage or deed of trust
request that this Lease and Tenant's rights hereunder be made superior, rather
than subordinate, to the mortgage or deed of trust, then Tenant will, within ten
(10) days after written request, execute and deliver such agreement as may be
required by such holder in order to effectuate and evidence such superiority of
the Lease to the mortgage or deed of trust.
25.2 ATTORNMENT. Tenant hereby agrees that Tenant will recognize as its
landlord under this Lease and shall attorn to any person succeeding to the
interest of Landlord in respect of the land and the buildings governed by this
Lease upon any foreclosure of any mortgage upon such land or buildings or upon
the execution of any deed in lieu of foreclosure in respect to such deed of
trust. If requested, Tenant shall execute and deliver an instrument or
instruments confirming its attornment as provided for herein; provided, however,
that no such beneficiary or successor- in-interest shall be bound by any payment
of Base Rent for more than one (1) month in advance, or any amendment or
modification of this Lease made without the express written consent of such
beneficiary where such consent is required under applicable loan documents.
25.3 MORTGAGEE PROTECTION. Tenant agrees to give Landlord's lender or
any holder of any mortgage or deed of trust secured by the Project, by
registered or certified mail or nationally recognized overnight delivery
service, a copy of any notice of default served upon the Landlord by Tenant,
provided that, prior to such notice, Tenant has been notified in writing (by way
of service on Tenant of a copy of assignment of rents and leases or otherwise)
of the address of such lender or such holder of a mortgage or deed of trust.
Tenant further agrees that if Landlord shall have failed to cure such default
within thirty (30) days after such notice to Landlord (or if such default cannot
be cured or corrected within that time, then such additional time as may be
necessary if Landlord has commenced within such thirty (30) day period and is
diligently pursuing the remedies or steps necessary to cure or correct such
default), then Landlord's lender or the holder of any mortgage or deed of trust
shall have an additional sixty (60) days within which to cure or correct such
default (or if such default cannot be cured or corrected within that time, then
such additional time as may be necessary if such holder of any mortgage or deed
of trust has commenced within such sixty (60) day period and is diligently
pursuing the remedies or steps necessary to cure or correct such default).
Notwithstanding the foregoing, in no event shall Landlord's lender or any holder
of any mortgage or deed of trust have any obligation to cure any default of the
Landlord.
ARTICLE 26
ESTOPPEL CERTIFICATE
(a) Within ten (10) business days following any written
request which Landlord or Landlord's lender may make from time to time, Tenant
shall duly execute (and if required by Landlord or Landlord's lender, have such
signature acknowledged) and deliver to Landlord and Landlord's lender, an
estoppel certificate in the form then in use by Landlord or its lender. Landlord
and Tenant intend that any statement delivered pursuant to this Article 26 may
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be relied upon by any mortgagee, beneficiary, purchaser or prospective purchaser
of the Building or Project or any interest therein.
(b) Tenant's failure to deliver such statement within such
time shall be an Event of Default hereunder and shall conclusive upon Tenant:
(i) That this Lease is in full force and effect, without
modification except as may be represented by Landlord,
(ii) That there are no uncured defaults in Landlord's
performance,
(iii) That not more than one month's rental has been paid in
advance; and
(iv) That Tenant has no right of offset, counterclaim or
deduction against Rent hereunder.
(b) Within ten (10) business days following any written request which
Tenant may make from time to time (but not more than once every six (6) months),
Landlord shall duly execute and deliver to Tenant, an estoppel certificate in
the form reasonably approved by Landlord. Landlord and Tenant intend that any
statement delivered pursuant to this Article 26(b) may be relied upon by any
mortgagee, beneficiary, purchaser or prospective purchaser of the Tenant's
business or interest therein.
(c) If Landlord's lender should require that this Lease be amended
(other than in the description of the Premises, the Term, the Permitted Use, the
Rent or as will substantially, materially and adversely affect the rights of
Tenant), Landlord shall give written notice thereof to Tenant, which notice
shall be accompanied by a Lease supplement embodying such amendments. Tenant
shall, within ten (10) days after the receipt of Landlord's notice, execute and
deliver to Landlord the tendered Lease supplement.
ARTICLE 27
SIGNAGE
Landlord shall provide for Tenant the opportunity to have Tenant's name
placed upon the Building lobby directory sign, and at Tenant's entrance to the
Premises. Tenant shall have no other right to maintain a Tenant identification
sign in any other location in, on or about the Premises, the Building, the
Project, or Xxxxxx Corporate Park and shall not display or erect any Tenant
identification sign, display or other advertising material that is visible from
the exterior of the Building. The size, design, color and other physical aspects
of the Tenant identification sign shall be subject to Landlord's written
reasonable approval prior to installation. The cost of the installation of the
sign, and its maintenance and removal expense, shall be at Tenant's sole
expense. If Tenant fails to maintain its sign or if Tenant fails to remove its
sign upon termination of this Lease, Landlord may do so at Tenant's expense and
Tenant's reimbursement to Landlord for such amounts shall be deemed additional
rent. All signs shall comply with rules and regulations set forth by Landlord as
may be modified from time to time.
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ARTICLE 28
RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the "Rules and
Regulations," a copy of which is attached hereto and marked EXHIBIT D, and all
reasonable and nondiscriminatory modifications thereof and additions thereto
from time to time put into effect by Landlord. Landlord shall not be responsible
to Tenant for the violation or non-performance by any other tenant or occupant
of the Project of any of said Rules and Regulations.
ARTICLE 29
CONFLICT OF LAWS
This Lease shall be governed by and construed pursuant to the laws of
the State of California.
ARTICLE 30
SUCCESSORS AND ASSIGNS
Except as otherwise provided in this Lease, all of the covenants,
conditions and provisions of this Lease shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
ARTICLE 31
SURRENDER OF PREMISES
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Landlord, operate as an assignment to it of any or all subleases and
subtenancies.
ARTICLE 32
ATTORNEYS' FEES
(a) If Landlord should bring suit for possession of the Premises, for
the recovery of any sum due under this Lease, or because of the breach of any
provisions of this Lease, or for any other relief against Tenant hereunder, or
in the event of any other litigation between the parties with respect to this
Lease, then all costs and expenses, including reasonable attorneys' fees,
incurred by the prevailing party therein shall be paid by the other party, which
obligation on the part of the other party shall be deemed to have accrued on the
date of the commencement of such action and shall be enforceable whether or not
the action is prosecuted to judgment.
(b) If Landlord is named as a defendant in any suit brought against
Tenant in connection with or arising out of Tenant's occupancy hereunder, Tenant
shall pay to Landlord its costs and expenses incurred in such suit, including
reasonable attorneys' fees.
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ARTICLE 33
PERFORMANCE BY TENANT
All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent. If Tenant shall fail to pay any sum
of money owed to any party other than Landlord, for which it is liable hereunder
or if Tenant shall fail to perform any other act on its part to be performed
hereunder and such failure shall continue for ten days after notice thereof by
Landlord, Landlord may, without waiving or releasing Tenant from obligations of
Tenant, but shall not be obligated to, make any such payment or perform any such
other act to be made or performed by Tenant. All sums so paid by Landlord and
all necessary incidental costs together with interest thereon at the maximum
rate permissible by law, from the date of such payment by Landlord, shall be
payable to Landlord on demand. Tenant covenants to pay any such sums and
Landlord shall have (in addition to any other right or remedy of Landlord) all
rights and remedies in the event of the non-payment thereof by Tenant as are set
forth in Article 23 hereof.
ARTICLE 34
MORTGAGEE PROTECTION
In the event of any default on the part of Landlord, Tenant will give
notice by registered or certified mail to any beneficiary of a deed of trust or
mortgage covering the Premises whose address shall have been furnished to
Tenant, and shall offer such beneficiary or mortgagee a reasonable opportunity
to cure the default, including time to obtain possession of the Premises by
power of sale or a judicial foreclosure, if such should prove necessary to
effect a cure.
ARTICLE 35
DEFINITION OF LANDLORD
The term "Landlord", as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner or owners, at the time in question, of the fee title of
the Premises or the lessees under any ground lease, if any. In the event of any
transfer, assignment or other conveyance or transfers of any such title,
Landlord herein named (and in case of any subsequent transfers or conveyances,
the then grantor) shall be automatically freed and relieved from and after the
date of such transfer, assignment or conveyance of all liability as respects the
performance of any covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed. Without further agreement, the transferee
of such title shall be deemed to have assumed and agreed to observe and perform
any and all obligations of Landlord hereunder, during its ownership of the
Premises. Landlord may transfer its interest in the Premises without the consent
of Tenant and such transfer or subsequent transfer shall not be deemed a
violation on Landlord's part of any of the terms and conditions of this Lease.
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ARTICLE 36
WAIVER
The waiver by either party of any breach of any term, covenant or condition
herein contained shall not be deemed to be a waiver of any subsequent breach of
the same or any other term, covenant or condition herein contained, nor shall
any custom or practice which may grow up between the parties in the
administration of the terms hereof be deemed a waiver of or in any way affect
the right of either party to insist upon the performance by the other party in
strict accordance with said terms. The subsequent acceptance of Rent hereunder
by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant
or any term, covenant or condition of this Lease, other than the failure of
Tenant to pay the particular rent so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such rent.
Without limiting the generality of the foregoing, the acceptance of Rent
hereunder by Landlord shall not be a waiver of any preceding breach by Tenant of
any provision hereof, other than the failure of Tenant to pay the particular
Rent so accepted. Tenant agrees and acknowledges that the foregoing provides
actual and sufficient knowledge to Tenant, pursuant to California Code of Civil
Procedure Section 1161.1(c), that acceptance of a partial rent payment by
Landlord does not constitute a waiver of any of Landlord's rights under said
Section 1161.1(c).
ARTICLE 37
IDENTIFICATION OF TENANT
If more than one person executes this Lease as Tenant:
(i) Each of them is jointly and severally liable for the
keeping, observing and performing of all of the terms, covenants, conditions,
provisions and agreements of this Lease to be kept, observed and performed by
Tenant, and
(ii) The term "Tenant" as used in this Lease shall mean and
include each of them jointly and severally. The act of or notice from, or notice
to refund to, or the signature of any one or more of them, with respect to the
tenancy of this Lease, including, but not limited to any renewal, extension,
expiration, termination or modification of this Lease, shall be binding upon
each and all of the persons executing this Lease as Tenant with the same force
and effect as if each and all of them had so acted or so given or received such
notice or refund or so signed.
ARTICLE 38
PARKING
The use by Tenant, its employees and invitees, of the parking
facilities of the Project shall be on the terms and conditions set forth in
EXHIBIT E attached hereto and by this reference incorporated herein and shall be
subject to such other agreement between Landlord and Tenant as may hereinafter
be established. Tenant, its employees and invitees shall use no more than four
(4) non-exclusive parking spaces per one thousand (1,000) square feet of leased
space. Tenant's use of the parking spaces shall be confined to the Project. If,
in Landlord's reasonable business judgment, it becomes necessary, Landlord shall
exercise due diligence to cause the creation of cross-parking easements and such
other agreements as are necessary to permit Tenant, its employees and invitees
to use parking spaces on the properties and buildings of Xxxxxx Corporate Park,
which are separate legal parcels from the Project. Tenant acknowledges that
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other tenants of the Project and the tenants of the other buildings, their
employees and invitees, may be given the right to park at the Project.
ARTICLE 39
TERMS AND HEADINGS
The words "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular. Words used in any gender include other genders.
The section headings of this Lease are not a part of this Lease and shall have
no effect upon the construction or interpretation of any part hereof.
ARTICLE 40
EXAMINATION OF LEASE
Submission of this instrument for examination or signature by Tenant
does not constitute a reservation of or option for lease, and it is not
effective as a lease or otherwise until execution by and delivery to both
Landlord and Tenant.
ARTICLE 41
TIME
Time is of the essence with respect to the performance of every
provision of this Lease in which time or performance is a factor.
ARTICLE 42
PRIOR AGREEMENT: AMENDMENTS
This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease, and no prior agreement
or understanding pertaining to any such matter shall be effective for any
purpose. No provisions of this Lease may be amended or added to except by an
agreement in writing signed by the parties hereto or their respective successors
in interest.
ARTICLE 43
SEPARABILITY
Any provision of this Lease which shall prove to be invalid, void or
illegal in no way affects, impairs or invalidates any other provision hereof,
any such other provisions shall remain in full force and effect.
ARTICLE 44
RECORDING
Neither Landlord nor Tenant shall record this Lease nor a short form
memorandum thereof without the consent of the other.
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ARTICLE 45
CONSENTS
Unless otherwise specified herein, whenever the consent of either party
is required hereunder such consent shall not be unreasonably withheld. Tenant
shall pay Landlord within thirty (30) days of written demand all of Landlord's
reasonable third party out of pocket fees and expenses incurred in connection
with evaluating any request by Tenant (or on behalf of Tenant) for any Landlord
consent.
ARTICLE 46
LIMITATION ON LIABILITY
In consideration of the benefits accruing hereunder, Tenant and all
successors and assigns covenant and agree that, in the event of any actual or
alleged failure, breach or default hereunder by Landlord:
(a) The sole and exclusive remedy shall be against the Landlord's
interest in the Project;
(b) No partner, member, shareholder, officer, agent or employee of
Landlord shall be sued or named as a party in any suit or action (except as may
be necessary to secure jurisdiction of Landlord);
(c) No service or process shall be made against any partner, member,
shareholder, officer, agent or employee of Landlord (except as may be necessary
to secure jurisdiction of Landlord);
(d) No partner, member, shareholder, officer, agent or employee of
Landlord shall be required to answer or otherwise plead to any service of
process;
(e) No judgment will be taken against any partner, member, shareholder,
officer, agent or employee of Landlord;
(f) Any judgment taken against any partner, member, shareholder,
officer, agent or employee of Landlord may be vacated and set aside at any time
nunc pro tunc;
(g) No writ of execution will ever be levied against the assets of any
partner, officer, agent or employee of Landlord;
(h) These covenants and agreements are enforceable both by Landlord and
also by any partner, officer, agent or employee of Landlord.
ARTICLE 47
RIDERS
Clauses, plats and riders, if any, signed by Landlord and Tenant and
affixed to this Lease are a part hereof.
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ARTICLE 48
EXHIBITS
All Exhibits attached hereto are incorporated into this Lease.
ARTICLE 49
MODIFICATION FOR LENDER; FINANCIAL INFORMATION
(a) If, in connection with obtaining construction, interim or permanent
financing for the Project the lender shall request reasonable modifications in
this Lease as a condition to such financing, Tenant will not unreasonably
withhold, delay or defer its consent thereto, provided that such modifications
do not increase the obligations of Tenant hereunder or materially adversely
affect the leasehold interest hereby created or Tenant's rights hereunder.
(b) Prior to the date hereof, Tenant has delivered certain Financial
Information (as hereinafter defined) to Landlord and Landlord has relied to a
material extent on such financial information in agreeing to lease the Premises
to Tenant. Tenant represents, warrants, certifies and covenants to Landlord
that: (i) all of the financial information (other than future projections, if
any) (collectively, "Financial Information") delivered by Tenant to Landlord
prior to the date hereof is true, correct and complete in all material respects
as of the date of such Financial Information; (ii) the Financial Information
accurately represents the financial condition of the Tenant as of the date of
such Financial Information; (iii) if Tenant delivered unaudited Financial
Information to Landlord, then Tenant does not have any audited financial
statements for the three (3) calendar and/or fiscal years preceding the date
hereof; (iv) the Financial Information was prepared using generally accepted
accounting principles consistently applied; and (v) Tenant has delivered to
Landlord all material information in Tenant's possession and/or control
concerning the financial condition of Tenant. Unless the same is publicly
available on line, Tenant shall at its own cost and expense, upon any written
request by Landlord (not to exceed one (1) request every calendar quarter),
deliver to Landlord true, correct and complete copies of Tenant's then most
recent Financial Information, and if available, such Financial Information
delivered to Landlord shall have been audited. Any failure by Tenant to deliver
its then most recent financial Information within ten (10) business days (which
shall be in lieu of any grace period set forth herein, if any) after a written
request by Landlord to Tenant or if any Financial Information delivered by
Tenant to Landlord is not true, correct and complete as of the date of such
Financial Information shall in either case be an Event of Default by Tenant
hereunder. Tenant agrees and acknowledges that notwithstanding anything to the
contrary set forth in this Lease, under no circumstances shall Tenant be
afforded any notice and/or cure rights with regards to any Financial Information
that is not true, correct and complete in all material respects as of the date
of the Financial Information. The foregoing provisions of this Section 49(b)
shall also apply to any guarantor of this Lease.
ARTICLE 50
PROJECT PLANNING
If Landlord requires the Premises for use in conjunction with another
suite or for other reasons connected with the Project planning program, upon
notifying Tenant in writing, Landlord shall have the right to relocate Tenant to
36
other space in the Project, so long as the same is located on the first floor,
at Landlord's sole cost and expense (which shall include the costs of relocating
the Tenant, including, without limitation, new letterhead and other stationary
and moving expenses), and the terms and conditions of the original Lease shall
remain in full force and effect, except that a revised EXHIBIT A reflecting the
location of the new space shall be attached to and become a part of this Lease.
However, if the new space does not meet with Tenant's approval, Tenant shall
have the right to terminate this Lease effective thirty (30) days after written
notice to Landlord, which notice shall be given within ten (10) days after
receipt of Landlord's notification.
ARTICLE 51
HAZARDOUS MATERIALS
Tenant shall not cause nor permit, nor allow any Tenant Party to cause
or permit, any Hazardous Materials to be brought upon, stored, manufactured,
generated, blended, handled, recycled, treated, disposed or used on, under or
about the Premises, the Building, the Common Area or the Project, except for
routine office and janitorial supplies in usual and customary quantities stored,
used and disposed of in accordance with all applicable Environmental Laws.
Tenant and Tenant's Parties shall comply with all Environmental Laws and
promptly notify Landlord in writing of the violation of any Environmental Law or
presence of any Hazardous Materials, other than office and janitorial supplies
as permitted above, on the Premises. Landlord shall have the right to enter upon
and inspect the Premises and to conduct tests, monitoring and investigations. If
such tests indicate the presence of any environmental condition caused or
exacerbated by Tenant or any Tenant Party or arising during Tenant's or any
Tenant Party's occupancy, Tenant shall reimburse Landlord for the cost of
conducting such tests. The phrase "environmental condition" shall mean any
adverse condition relating to any Hazardous Materials or the environment,
including surface water, groundwater, drinking water supply, land, surface or
subsurface strata or the ambient air and includes air, land and water
pollutants, noise, vibration, light and odors. In the event of any such
environmental condition caused or exacerbated by Tenant or a Tenant Party,
during the term of this Lease, Tenant shall promptly take any and all steps
necessary to rectify the same to the satisfaction of the applicable agencies and
Landlord, or shall, at Landlord's election, reimburse Landlord, upon demand, for
the cost to Landlord of performing rectifying work. The reimbursement shall be
paid to Landlord in advance of Landlord's performing such work, based upon
Landlord's reasonable estimate of the cost thereof; and upon completion of such
work by Landlord, Tenant shall pay to Landlord any shortfall within thirty (30)
days after Landlord bills Tenant therefore or Landlord shall within thirty (30)
days refund to Tenant any excess deposit, as the case may be. Tenant shall
indemnify, protect, defend (by counsel acceptable to Landlord) and hold harmless
Landlord and Landlord's affiliated entities, and each of their respective
members, managers, partners, directors, officers, employees, shareholders,
lenders, agents, contractors, along with the successors and assigns of the
foregoing, (individually and collectively, "Indemnitees") from and against any
and all claims, judgments, causes of action, damages, penalties, fines, taxes,
costs, liabilities, losses and expenses arising at any time during or after the
Term as a result (directly or indirectly) of or in connection with (a) Tenant
and/or any Tenant Party's breach of this Article 51 or (b) the presence of
Hazardous Materials on, under or about the Premises or other property as a
result (directly or indirectly) of Tenant's and/or any Tenant Party's
37
activities, or failure to act, in connection with the Premises. This indemnity
shall include, without limitation, the cost of any required or necessary repair,
cleanup or detoxification, and the preparation and implementation of any
closure, monitoring or other required plans, whether such action is required or
necessary prior to or following the termination of this Lease. Neither the
written consent by Landlord to the presence of Hazardous Materials on, under or
about the Premises, nor the strict compliance by Tenant with all Environmental
Laws, shall excuse Tenant from Tenant's obligation of indemnification pursuant
hereto. Tenant's obligations pursuant to the foregoing indemnity shall survive
the expiration or termination of this Lease.
ARTICLE 52
COUNTERPARTS
This Lease may be executed in two or more fully or partially executed
counterparts, any one or more of which may be executed and delivered by
facsimile transmission, each of which will be deemed an original binding the
signer thereof against the other signing parties, but all counterparts together
will constitute one and the same instrument.
ARTICLE 53
FORCE MAJEURE
As used herein, a "Force Majeure" event shall mean any acts of God,
inability to obtain labor, strikes, lockouts, lack of materials, governmental
restrictions, enemy actions, civil commotion, fire, earthquake, unavoidable
casualty or other similar causes beyond Landlord's control. It is expressly
agreed that Landlord shall not be obliged to settle any strike to avoid a Force
Majeure event from continuing.
ARTICLE 54
WAIVER OF RIGHT TO TRIAL BY JURY
EACH PARTY TO THIS LEASE HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING HEREUNDER WHETHER SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW EXISTING OR HEREAFTER ARISING,
AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL
BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS LEASE MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF ANY RIGHT THEY
MIGHT OTHERWISE HAVE TO TRIAL BY JURY. NOTWITHSTANDING THE FOREGOING TO THE
CONTRARY, IN THE EVENT THAT THE JURY TRIAL WAIVER CONTAINED HEREIN SHALL BE HELD
OR DEEMED TO BE UNENFORCEABLE, EACH PARTY HERETO HEREBY EXPRESSLY AGREES TO
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SUBMIT TO JUDICIAL REFERENCE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE
SECTIONS 638 THROUGH 645.1 ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING
HEREUNDER FOR WHICH A JURY TRIAL WOULD OTHERWISE BE APPLICABLE OR AVAILABLE.
PURSUANT TO SUCH JUDICIAL REFERENCE, THE PARTIES AGREE TO THE APPOINTMENT OF A
SINGLE REFEREE AND SHALL USE THEIR BEST EFFORTS TO AGREE ON THE SELECTION OF A
REFEREE. IF THE PARTIES ARE UNABLE TO AGREE ON A SINGLE A REFEREE, A REFEREE
SHALL BE APPOINTED BY THE COURT UNDER CALIFORNIA CODE OF CIVIL PROCEDURE
SECTIONS 638 AND 640 TO HEAR ANY DISPUTES HEREUNDER IN LIEU OF ANY SUCH JURY
TRIAL. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE APPOINTED REFEREE SHALL HAVE
THE POWER TO DECIDE ALL ISSUES IN THE APPLICABLE ACTION OR PROCEEDING, WHETHER
OF FACT OR LAW, AND SHALL REPORT A STATEMENT OF DECISION THEREON; PROVIDED,
HOWEVER, THAT ANY MATTERS WHICH WOULD NOT OTHERWISE BE THE SUBJECT OF A JURY
TRIAL WILL BE UNAFFECTED BY THIS WAIVER AND THE AGREEMENTS CONTAINED HEREIN. THE
PARTIES HERETO HEREBY AGREE THAT THE PROVISIONS CONTAINED HEREIN HAVE BEEN
FAIRLY NEGOTIATED ON AN ARMS-LENGTH BASIS, WITH BOTH SIDES AGREEING TO THE SAME
KNOWINGLY AND BEING AFFORDED THE OPPORTUNITY TO HAVE THEIR RESPECTIVE LEGAL
COUNSEL CONSENT TO THE MATTERS CONTAINED HEREIN. ANY PARTY TO THIS LEASE MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY AND THE AGREEMENTS CONTAINED HEREIN REGARDING THE APPLICATION OF
JUDICIAL REFERENCE IN THE EVENT OF THE INVALIDITY OF SUCH JURY TRIAL WAIVER.
ARTICLE 55
OPTION TO RENEW
(a) Subject to the terms of this Article 55 and provided that no
monetary Event of Default has occurred, Tenant shall have one (1) option to
extend ("Renewal Option") the Term of this Lease for THIRTY SIX (36) MONTHS
commencing upon the expiration of the initial Term of the Lease ("Extension
Term"). In the event Tenant elects to exercise its option to extend the Lease
Term by the Extension Term, as provided hereunder, Tenant shall provide Landlord
irrevocable written notice of such election, no earlier than two hundred seventy
(270) days and no later than one hundred eighty (180) days prior to the
then-existing expiration date of the Term of this Lease. Except for Base Rent,
the terms and conditions of this Lease during the Extension Term shall be
identical to the terms and conditions of this Lease. Base Rent shall be
determined as set forth in Article 55(b) below.
(b) Base Rent for the Extension Term shall be adjusted to one hundred
percent (100%) of the fair market rental value ("FMV"), as determined herein. In
the event Tenant timely exercises the Renewal Option, Landlord shall, within
twenty (20) days after receipt of Tenant's notice exercising the Renewal Option,
39
notify Tenant of Landlord's good faith determination of the Base Rent for the
Extension Term (the "Landlord's Option Rent Response"). Tenant shall accept or
reject Landlord's Option Rent Response by notice to Landlord within ten (10)
business days following receipt of Landlord's Option Rent Response. If Tenant
fails to object to Landlord's Option Rent Response within such time period, then
Landlord's determination of FMV set forth in the Landlord's Option Rent Response
shall be conclusive and binding. If Tenant does not accept Landlord's Option
Rent Response, then Landlord and Tenant shall attempt to agree upon the Base
Rent for the Extension Term ("Option Rent"), using their good faith efforts. If
Landlord and Tenant fail to reach agreement on the Option Rent within ten (10)
business days following Tenant's receipt of Landlord's Option Rent Response,
then within five (5) business days after demand by either Landlord or Tenant,
each party shall simultaneously present to the other and certify to each other
such party's final offer regarding the Option Rent for the Extension Term (each,
a "Last Offer"). If the parties fail to agree on the Option Rent within ten (10)
business days following Tenant's receipt of Landlord's Option Rent Response,
such Last Offers shall be submitted to arbitration by Landlord and/or Tenant
(the "Arbitration Demand") in accordance with Article 55(b)(i) through
(b)(viii), below and in accordance with the then existing Rules for Commercial
Arbitration of the American Arbitration Association, or its successor.
(i) Landlord and Tenant shall each appoint one (1) arbitrator
(each, an "Original Arbitrator") who shall be a real estate broker with at least
ten (10) years experience in the leasing of commercial office properties in
Pleasanton, California. Original Arbitrators shall be appointed within fifteen
(15) days after the Arbitration Demand.
(ii) The two Original Arbitrators so appointed shall within
ten (10) days of the date of the appointment of the last appointed arbitrator
agree upon and appoint a third arbitrator ("Neutral Arbitrator"; and together
with the Original Arbitrators, the "Arbitration Panel"). The Neutral Arbitrator
shall be an appraiser certified as an "MAI" or "ASA" appraiser who has had at
least five (5) years experience within the previous ten (10) years as a real
estate appraiser of commercial office properties in Pleasanton, California. For
purposes hereof, an "MAI" appraiser means an individual who holds an MAI
designation conferred by, and is an independent member of, the American
Institute of Real Estate Appraisers (or its successor organization, or in the
event there is no successor organization, the organization and designation most
similar), and an "ASA" appraiser means an individual who holds the Senior Member
designation conferred by, and is an independent member of, the American Society
of Appraisers (or its successor organization, or, in the event there is no
successor organization, the organization and designation most similar).
(iii) The sole role of the Arbitration Panel shall be to
determine the FMV for the Extension Term. In determining the FMV, the
Arbitration Panel shall take into account the following: (A) the Arbitration
Demand; and (B) the annual rent per rentable square foot that Landlord has
accepted in other current similar transactions in the Project and what the
Landlord has accepted in other current similar transactions in the properties
owned by Landlord and adjoining the Project, and what a willing, comparable,
renewal, non-equity tenant would pay, and what a willing comparable landlord in
the Pleasanton area would accept at arms length, in either case, giving
appropriate consideration to all economic benefits achievable by Landlord, such
as monthly Base Rent (including periodic adjustments), Additional Rent in the
form of Direct Expense reimbursements, and any and all monetary or non-monetary
40
concessions including, without limitation, (x) a then-current base year and (y)
any Renewal Concessions (as hereinafter defined), if any, that may be given in
the market place to a comparable renewal tenant, as is chargeable for a similar
use of comparable space for a comparable term in a comparable office building in
a comparable location in the Pleasanton area. As used herein, the term Renewal
Concessions shall mean the following: (a) rental abatement concessions, if any,
provided in connection with such comparable space; and (b) tenant improvements
or allowances provided or to be provided for such comparable space, taking into
account, and deducting the value of, the existing improvements in the Premises,
such value to be based upon the age, quality and layout of the improvements and
such value to be based upon the age, quality and layout of the improvements and
the extent to which the same can be utilized by Tenant based upon the fact that
the precise tenant improvements existing in the Premises are specifically
suitable to Tenant; provided, however, that in calculating the FMV, no
consideration shall be given to any period of rent abatement given such tenants
in connection with the construction of improvements in such comparable space.
If, in determining the FMV, a tenant improvement allowance is granted under item
(b) above, Landlord may, at Landlord's sole option, elect any of a portion of
the following: (1) to grant some or all of the Renewal Concessions to Tenant in
the form as described above (i.e., as an improvement allowance), or (2) to
adjust the rental rate component of the FMV to be an effective rental rate which
takes into consideration the total dollar value of such Renewal Concession (in
which case to the extent the Renewal Concession is evidenced in the effective
rental rate, it shall not be granted to Tenant).
(iv) If either Landlord or Tenant fails to appoint an Original
Arbitrator within fifteen (15) days after the other party's Arbitration Demand,
then the first appointed Original Arbitrator shall select a Last Offer to serve
as the Option Rent for the Extension Term using the same criteria applicable in
case of a Neutral Arbitrator under Article 55 (b)(iii) above.
(v) If the two (2) Original Arbitrators fail to agree upon and
appoint a Neutral Arbitrator, or if both parties fail to appoint an Original
Arbitrator, then the Neutral Arbitrator shall be appointed by the American
Arbitration Association, or a successor entity.
(vi) The cost of an Original Arbitrator shall be borne by the
appointing party. The cost of the Neutral Arbitrator and other customary costs
payable to third parties initially shall be paid by Landlord and Tenant equally.
(vii) If the actual FMV of the Premises as determined by the
Arbitration Panel is greater than Landlord's determination or differs from
Landlord's determination of FMV as set forth in the Last Offer by five percent
(5%) or less, the costs of arbitration pursuant to this Article shall be paid by
Tenant. If the actual FMV of the Premises as determined by the Arbitration Panel
is less than Landlord's determination of FMV as set forth in the Last Offer by
greater than five (5%), the costs of arbitration shall be paid by Landlord.
(viii) In the event that the Option Rent has not been determined
pursuant to the terms hereof prior to the commencement of the Extension Term,
Tenant shall be required to pay the Option Rent at the lesser of Landlord's Last
Offer or one hundred fifty percent (150%) of the Base Rent in effect at the end
of the immediately preceding Renewal Term. Upon the final determination of the
41
Option Rent, the payments made by Tenant shall be reconciled with the actual
amounts of Option Rent due, and the appropriate party shall make any
corresponding payment to the other party.
(c) Notwithstanding anything to the contrary set forth herein, Tenant
shall have no right to exercise the Renewal Option (or if the Renewal Option is
exercised, but the following conditions are not satisfied, then the exercise of
the Renewal Option shall be void) if: (i) the net worth (determined in
accordance with generally accepted accounting principles consistently applied)
of the Tenant at the time it desires to exercise the Renewal Option or as of the
commencement date of the Extension Term is less than Five Million and No/100
Dollars ($5,000,000). Tenant shall be required, as a condition precedent to the
Renewal Option being validly exercised, to provide evidence (which shall be
reasonably acceptable to Landlord) that the foregoing conditions have been
satisfied.
(d) No later than thirty (30) days prior to the commencement of the
Extension Term, Tenant shall deposit with Landlord an amount, that when taken
together with the Security Deposit, equals the Base Rent due for the last month
of the Extension Term ("Additional Deposit") if such amount has then been
determined and if not promptly upon such determination. Upon the commencement of
the Extension Term, the term "Security Deposit" shall automatically include the
"Additional Deposit" and the Additional Deposit shall be held pursuant to the
terms of Article 5 hereof. If Tenant fails to deposit the Additional Deposit as
and when required hereunder, Tenant's exercise of the Renewal Option shall be
null and void and the Term of the Lease shall expire naturally expire.
(e) Notwithstanding anything to the contrary contained herein, the
Renewal Option in this Article 55 is personal to the originally named Tenant
above, shall be exercisable only by originally named Tenant above and may not be
assigned (other than to a Permitted Transferee) or exercised by any assignee
(other than a Permitted Transferee), sublessee or transferee of the originally
named Tenant's interest in the Lease (other than the Permitted Transferee), or
any successor in interest to the originally named Tenant above (other than a
Permitted Transferee), nor may it be exercised if any portion of the Premises is
sublet, or if the originally named Tenant above (or a Permitted Transferee) is
not occupying 100% of the Premises or if any monetary Event of Default shall
have occurred, unless Landlord, in its sole and absolute discretion, elects to
waive the same.
[SIGNATURE PAGE ATTACHED]
42
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first above written.
LANDLORD:
THE XXXXXXX FAMILY TRUST DATED
OCTOBER 30, 1989 ADDRESS
XXXXXXX FAMILY TRUST DATED OCTOBER 30, 1989 Streamline Property Management
By:________________________________________ 0000 Xxxxxxxxxx Xxxxx
Name: Xxxxx Xxxxxxx Suite 205
Its: Trustee Xxxxxxxxxx, XX 00000
000-000-0000
000-000-0000 (Facsimile)
TENANT:
BRIDGEBANK N.A., a federally chartered
national bank ADDRESS
By:________________________________________ Prior to Commencement Date:
Its:_______________________________________ 00 Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxx, XX 00000
After Commencement Date:
At the Premises
and
00 Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxx, XX 00000
43
EXHIBIT A
OUTLINE OF TENANT'S FLOOR PLAN
[See Attached]
EXHIBIT A-1
THE PROJECT
The land referred to in this commitment is situated in the County of ALAMEDA,
State of California, and is described as follows:
All that certain real property situated in the City of Pleasanton, County of
Alameda, State of California, described as follows:
PARCEL ONE:
Xxxxxx 0, Xxxxxx Map 4979, filed February 27, 1987, in Book 168, Pages 4 and 5
of Maps, Alameda County Records.
EXCEPTING THEREFROM that portion thereof described in the Deed recorded August
30, 1988, Series No. 88-219991, Official Records, pursuant to Lot Line
Adjustment No. 87-10.
ALSO EXCEPTING THEREFROM all subsurface waters, without the right of surface
entry, as described in the Quit Claim Deed to the City of Pleasanton, a
municipal corporation, recorded September 10, 1987, Series N. 87-249703,
Official Records.
RESERVING THEREFROM
A non-exclusive easement for ingress and egress of motor vehicles over portions
of Parcel 3 of Parcel Map 4979, filed February 27, 1987, in Book 168 of Parcel
Maps, pages 4 & 5, Alameda County Records, as described in the instrument
entitled "Declaration of Easement and Maintenance Agreement" recorded February
25, 1991, as Instrument No. 91-51502, Alameda County Records as modified by
instrument recorded April 3, 1991, Instrument No. 91-84344, Alameda County
Records, February 22, 1996, Instrument No. 96-43365, Alameda County Records,
July 31, 1997, Series No. 97191414, Official Records and November 17, 2000,
Series 2000-341939, Official Records said easement being appurtenant to Parcels
1 and 2 of Parcel Map 7339, filed May 19, 1999, in Book 244 of Maps, Pages 52
and 53, Alameda County Records and Parcel A, Parcel Map 5388, filed October 27m
1988, Book 182 of Maps, Pages 36 and 37, Alameda County Records.
A non-exclusive easement for ingress and egress of motor vehicles over portions
of Parcel 3 of Parcel Map 4979, filed February 27, 1987, in Book 168, Pages 4
and 5, of Maps, Alameda County Records as described in the instrument entitled
"Declaration of Easement and Maintenance Agreement recorded February 25, 1991,
as Series No. 91-51503, Official Records as modified by instruments recorded
April 3, 1991, Series No. 91-84345, July 31, 1997, Series No. 97191413, Official
Records, and November 17, 2000, Series No. 2000-341938,Official Records said
easement being appurtenant to Parcels 1 and 2 of Parcel Map 4979, filed February
27, 1987, in Book 168, Pages 4 and 5 of Maps, Alameda County Records.
PARCEL TWO:
A non-exclusive easement for ingress and egress over and across that portion of
Parcel A, Parcel Map 5388, filed October 27, 1988 in Book 182, Pages 36 and 37
of Maps, Alameda County Records, and Parcels 1 and 2, of Parcel Map 7339, filed
May 19, 1999, in Book 244 of Maps, Pages 52 and 53, Alameda County Records as
described in the Declaration of Easement and Maintenance Agreement recorded
February 25, 1991, Series No. 91-051502, Official Recorded modified by
instruments recorded April 3, 1991, Series No. 91-84344, Official Records,
February 22, 1996, Series No. 96-43365, Official Records, July 31, 1997, Series
No. 97-191414, Official Records and November 17, 2000, Series No. 2000-341939,
Official Records.
PARCEL THREE:
A non-exclusive easement appurtenant to Parcel One for ingress and egress of
motor vehicles over portions of Parcels 1 and 2 of Parcel Map 4979, filed
February 27, 1987, in Book 168, Pages 4 and 5 of Maps, Alameda County Records as
described in the instrument entitled "Declaration of Easement and Maintenance
Agreement" recorded February 25, 1991, as Series No. 91-51503, Official Records
as modified by instruments recorded April 3, 1991, Series No. 91-84345, July 31,
1997, Series No. 97-191413, and November 17, 2000, Series No. 2000-341938,
Official Records.
PARCEL FOUR:
A non-exclusive easement for pedestrian and vehicular ingress and egress over
and across those portions of Parcels 1 and 2 of Parcel Map 4979, filed February
27, 1987, in Book 168, Pages 4 and 5, of Maps, Alameda County Records, Parcels 1
and 2, Parcel Map 5568, filed October 26, 1989, in Book 187, Pages 50 and 51 of
Maps, Alameda County records, Parcel A of Parcel Map 5388, filed October 27,
1988, in Book 182 of Maps, Pages 36 and 37, Alameda County Records and Parcels 1
and 2 of Parcel Map 7339, filed May 19, 1999, in Book 244 of Maps, Pages 52 and
53, Alameda County Records as described in the instrument entitled "Declaration
of Reciprocal Access Easement Agreement" recorded August 16, 2001, Instrument
No. 2001-305639, Alameda County Records.
Commonly known as: 0000 Xxxx Xxxxxx Xxxxxxx
XXX: 946-4557-020-03
EXHIBIT B
WORK LETTER
This work letter ("Work Letter") shall set forth the terms and
conditions relating to the construction of the tenant improvements ("Tenant
Improvements") by Landlord in the Premises.
SECTION 1: CONSTRUCTION OF TENANT IMPROVEMENTS BY LANDLORD
1.1 Landlord and Tenant hereby acknowledge and agree that the Work
Letter has been prepared jointly by both parties, that the Work Letter sets
forth the details of all improvements to be constructed by Landlord in the
Premises prior to the Commencement Date and that Landlord shall not be required
to perform any improvements to the Premises other than the Tenant Improvements.
1.2 Landlord shall select such general contractors and/or
subcontractors as Landlord determines are appropriate in Landlord's sole and
absolute discretion for the construction of the Tenant Improvements. Tenant
shall cooperate with Landlord in the construction and supervision of the Tenant
Improvements and shall not interfere with the same.
1.3 All Tenant Improvements shall be deemed Landlord's property under
the terms of the Lease and shall revert to Landlord upon termination of the
Lease for any reason, it being understood and agreed that Tenant shall have no
ownership interest whatsoever in the Tenant Improvements.
SECTION 2: PROCEDURES FOR APPROVAL OF PLANS
2.1 Landlord and Tenant hereby acknowledge the following: (a) that each
intends that this Work Letter be comprised of construction plans and
specifications, drawings and details for build-out of the Premises in one (1)
phase (the "Working Drawings"), (b) that, as of the date of this Lease, the
initial plans and specifications ("Plans and Specifications") attached hereto as
SCHEDULE 1 set forth the preliminary agreement between Landlord and Tenant
concerning the Tenant Improvements; (c) that, as of the date of this Lease, the
Working Drawings are not complete, and (d) that the performance of the Tenant
Improvements cannot proceed in a timely manner for the mutual benefit of
Landlord and Tenant unless this Lease is executed and delivered by the parties
hereto and until Working Drawings are prepared and approved by Landlord and
Tenant.
2.2 Landlord agrees that so long as Tenant is not in default under the
Lease and performs its obligations under Section 2.4 of this Work Letter,
Landlord shall deliver to Tenant the materials which Landlord considers to be
the Working Drawings, based upon the Plans and Specifications. Within five (5)
business days after Tenant receives the Working Drawings, Tenant shall approve
in writing or deliver to Landlord any specific changes to, deletions from or
additions to the Working Drawings (the "Change") which (i) Tenant considers to
be necessary in order for such materials to comply with the Plans and
Specifications and (ii) are consistent with the terms of Section 2.3 below.
Landlord shall have five (5) business days to review the Change and either
approve or disapprove of such Change pursuant to the terms set forth in Section
2.3 below. In the event Landlord approves any Change, Landlord shall revise the
Working Drawings to include the approved Change and deliver the revised Working
Drawings to Tenant. Within five (5) business days after Tenant receives the
revised Working Drawings, Tenant shall approve the same and provide Landlord
with written evidence of such.
2.3 In the event that Tenant requests any Change to the Working
Drawings prior to Landlord commencing performance of the Tenant Improvements,
Landlord shall incorporate in the Working Drawings such Change provided that the
Change, in the aggregate, (i) does not create a Design Problem (as hereinafter
defined), (ii) does not constitute a deviation from the scope of the
improvements or a material deviation from the standards of the improvements, as
described in this Work Letter and/or as set forth in the Plans and
Specifications and/or as set forth in the Working Drawings (or as further
refined or otherwise made more specific in subsequent Working Drawings), (iii)
is reasonably approved by Landlord, and/or (iv) does not require Landlord to
amend its application for a building permit (if one was filed) or requires
Landlord to file a building permit (if none was required to be filed prior to
the making of such Change). "Design Problem" shall mean any (i) damage to or
material adverse effect on the structural components of the Building; (ii)
damage to or material adverse impact (such as an impact which will prevent, or
impair in any material respect, meeting the design criteria for any such system)
on the operation of any systems serving the Building and/or Premises; (iii)
non-compliance with any applicable laws, rules and regulations and/or the CC&Rs;
(iv) material adverse effect on the exterior appearance of the Premises; or (v)
unreasonable and material interference with the intended normal and customary
business operations of other tenants at the Project.
2.4 Tenant agrees to respond to any written request from Landlord for
information required to complete the Working Drawings or Tenant's approval of
materials prepared to be incorporated into the Working Drawings within five (5)
business days from the date of any such request. Time shall be of the essence as
to each of the timing provisions in this Work Letter. To the extent that Tenant
shall fail to respond in writing with any such Change within five (5) business
days after receiving each respective set of Working Drawings, the Working
Drawings as delivered to Tenant, shall be deemed approved by Landlord and Tenant
as constituting the Work Letter for all purposes under the Lease.
2.5 Upon approval in writing by both Landlord and Tenant of the Working
Drawings, such materials shall constitute the final Working Drawings (the "Final
Working Drawings") and shall be deemed to be attached to and incorporated in the
Lease as SCHEDULE 2 to this Work Letter. The Final Working Drawings shall be not
be changed without Landlord's approval, in Landlord's sole and absolute
discretion. Subject to the provisions of Paragraph 2.6 below, the procedures set
forth in Paragraph 2.2 shall apply until Final Working Drawings have been
achieved.
SECTION 3: COMPLETION OF WORK
3.1 Landlord makes no representations or warranties of any kind with
respect to the construction of the Tenant Improvements.
3.2 Landlord shall not be responsible to Tenant for any loss of or
damage to any Tenant's property installed or left in the Premises or such other
space within the Project during the completion of the Tenant Improvements. prior
to completion of Tenant's Work or at any time thereafter during the entire Lease
Term.
3.3 Any additional costs and expenses incurred by Landlord arising by
reason of any failure of Tenant to comply with the provisions of this Work
Letter and/or any modifications to the Final Working Drawings, including,
without limitation, increased fees which Landlord may be required to pay for
architectural, engineering and other similar services, any additional
construction costs, including costs of change orders, and any and all other
costs, expenses and/or damages incurred or suffered by Landlord by reason
thereof, including any delays in Landlord's construction of the Premises caused
by Tenant's failure to comply with the provisions of this Work Letter, shall be
at the sole cost and expense of Tenant.
3.4 Tenant shall, at Tenant's sole cost and expense, obtain all
permits, licenses and other approvals required for Tenant's particular use of
the Premises (however, Landlord shall obtain all permits to construct the Tenant
Improvements as set forth herein).
3.5 Tenant shall designate to Landlord in writing the name of one
individual representative ("Tenant's Representative") who, subject to the
reasonable need for substitution, will work with Landlord's representative
("Landlord's Representative") throughout the period of design, engineering and
construction of all Tenant Improvements to the Premises.
3.6 The term "Delays Caused By Tenant" shall mean any delay that the
Landlord may encounter in the performance of Landlord's obligations under the
Lease because of any act or omission of any nature by Tenant or its agents or
invitees, including, without limitation, delays resulting from changes in or
additions to the Final Working Drawings requested by Tenant or of the Tenant
Improvements requested by Tenant, including delays by Tenant in the submission
of information requested by Landlord or giving authorizations or approvals
requested by Landlord, delays due to the postponement of any Tenant Improvements
at the request of Tenant, or delays due to the failure of the Landlord to
approve, for reasonable reasons, any information provided by Tenant which is
incomplete or unacceptable, or delays caused by the concurrent installation of
Tenant's fixtures, or delays caused in any other way, directly or indirectly, by
Tenant, its agents or invitees, or delays due to the failure of Tenant to pay
when due, the amounts required by Tenant pursuant to this Work Letter. Tenant
shall pay all incremental construction and related costs and expenses incurred
by Landlord which result from Delays Caused By Tenant, including without
limitation increases in the cost of labor or materials. Landlord shall inform
Tenant of any delays which Landlord reasonably expects will occur as a result of
changes in or additions to the Final Working Drawings or of the Tenant
Improvements requested by Tenant.
Schedule 1
Initials Plans and Specifications
[See Attached]
Schedule 2
Final Working Drawings
[To be Attached when Completed in accordance with Section 2.5]
EXHIBIT C
STANDARDS FOR UTILITIES AND SERVICES
The following Standards for Utilities and Services are in effect.
Landlord reserves the right to adopt nondiscriminatory modifications and
additions hereto:
As long as Tenant is not in default under any of the terms, covenants,
conditions, provisions, or agreements of this Lease, Landlord shall:
(a) On Monday through Friday, except holidays, from 7 A.M. to 6 P.M.
(and other times for a reasonable additional charge to be fixed by Landlord),
ventilate the Premises and furnish air conditioning or heating on such days and
hours, when in the judgment of Landlord it may be required for the comfortable
occupancy of the Premises. The air conditioning system achieves maximum cooling
when the window coverings are closed. Landlord shall not be responsible for room
temperatures if Tenant does not keep all window coverings in the Premises closed
whenever the system is in operation. Tenant agrees to cooperate fully at all
times with Landlord, and to abide by all regulations and requirements which
Landlord may prescribe for the proper function and protection of said air
conditioning system. Tenant agrees not to connect any apparatus, device, conduit
or pipe to the Building chilled and hot water air conditioning supply lines.
Tenant further agrees that neither Tenant nor its servants, employees, agents,
visitors, licensees or contractors shall at any time enter mechanical
installations or facilities of the Building or adjust, tamper with, touch or
otherwise in any manner affect said installations or facilities. The cost of
maintenance and service calls to adjust and regulate the air conditioning system
shall be charged to Tenant if the need for maintenance work results from either
Tenant's adjustment of room thermostats or Tenant's failure to comply with its
obligations under this section, including keeping window coverings closed as
needed. Such work shall be charged at hourly rates equal to then current
journeymen's wages for air conditioning mechanics.
(b) Landlord shall furnish to Tenant after-hours heating and air
conditioning at the rate of $25.00 per hour (two-hour minimum charge) for such
after-hours use. If the actual cost to Landlord of providing such after-hours
heating and air-conditioning increases at any time during the term of this
Lease, Landlord shall have the right to increase the hourly rate charged by
Landlord for such after-hours usage upon at least 10 days prior notice to
Tenant. Landlord shall xxxx Tenant monthly for such after-hours usage and Tenant
shall pay such charges to Landlord, as additional rent, within 20 days after
receipt of Landlord's statement of such charges.
(c) Landlord shall furnish to the Premises electric current sufficient
for normal office use through the course of each day. Tenant agrees, should its
electrical installation or electrical consumption be in excess of the aforesaid
quantity, to reimburse Landlord monthly for the measured consumption at the
average cost per kilowatt hour charged to the Building during the period. If a
separate meter is not installed at Tenant's cost, such excess cost will be
established by an estimate agreed upon by Landlord and Tenant, and if the
parties fail to agree, as established by an independent licensed engineer. Said
estimates to be reviewed and adjusted quarterly. Tenant agrees not to use any
apparatus or device in, or upon, or about the premises which may in any way
increase the amount of such services usually furnished or supplied to said
Premises, and Tenant further agrees not to connect any apparatus or device with
wires, conduits or pipes, or other means by which such services are supplied,
for the purpose of using additional or unusual amounts of such services without
written consent of Landlord. Should Tenant use the same to excess, the refusal
on the part of Tenant to pay upon demand of Landlord the amount established by
Landlord for such excess charge shall constitute a breach of the obligation to
pay rent under this Lease and shall entitle Landlord to the rights therein
granted for such breach. At all times Tenant's use of electric current shall
never exceed the capacity of the feeders to the Building or the risers or wiring
installation and Tenants shall not install or use or permit the installation or
use of any computer, larger than personal computer, or electronic data
processing equipment in the Premises, without the prior written consent of
Landlord.
(d) Water will be available in public areas for drinking and lavatory
purposes only, but if Tenant requires, uses or consumes water for any purposes
in addition to ordinary drinking and lavatory purposes of which fact Tenant
constitutes Landlord to be the reasonable judge, Landlord may install a water
meter and thereby measure Tenant's water consumption for all purposes. Tenant
shall pay Landlord for the cost of the meter and the cost of the installation
thereof and throughout the duration of Tenant's occupancy, Tenant shall keep
said meter and installation equipment in good working order and repair at
Tenant's own cost and expense, in default of which Landlord may cause such meter
and equipment to be replaced or repaired and collect the cost thereof from
Tenant. Tenant agrees to pay for water consumed, as shown on said meter, as and
when bills are rendered, and on default in making such payment, Landlord may pay
such charges and collect the same from Tenant. Any such costs or expenses
incurred, or payments made by Landlord for any of the reasons or purposes
hereinabove stated shall be deemed to be additional rent payable by Tenant and
collectible by Landlord as such.
(e) Provide janitor service to the Premises, provided the same are kept
reasonably in order by Tenant, and if to be kept clean by Tenant, no one other
than persons approved by Landlord shall be permitted to enter the Premises for
such purposes. If the Premises are not used exclusively as offices (including a
loan office), they shall be kept clean and in order by Tenant, at Tenant's
expense, and to the satisfaction of Landlord, and by persons approved by
Landlord. Tenant shall pay to Landlord the cost of removal of any of Tenant's
refuse and rubbish, to the extent that the same exceeds the refuse and rubbish
usually attendant upon the use of the Premises as offices.
(f) Landlord reserves the right to stop service of the elevator,
plumbing, ventilation, air conditioning and electric systems, when necessary, by
reason of accident or emergency or for repairs, alterations or improvements, in
the judgment of Landlord desirable or necessary to be made, until said repairs,
alterations or improvements shall have been completed, and shall further have no
responsibility or liability for failure to supply elevator facilities, plumbing,
ventilating, air conditioning or electric service, when prevented from so doing
by strike or accident or by any cause beyond Landlord's reasonable control, or
by laws, rules, orders, ordinances, directions, regulations or requirements of
any federal, state, county or municipal authority or failure of gas, oil or
other suitable fuel supply or inability by exercise of reasonable diligence to
obtain gas, oil or other suitable fuel. It is expressly understood and agreed
that any covenants on Landlord's part to furnish any service pursuant to any of
the terms, covenants, conditions, provisions or agreements of this Lease, or to
perform any act or thing for the benefit of Tenant, shall not be deemed breached
if Landlord is unable to furnish or perform the same by virtue of a strike or
labor trouble or any other cause whatsoever beyond Landlord's control.
EXHIBIT D
RULES AND REGULATIONS
Sycamore Terrace Project
1. Except as specifically provided in the Lease to which these Rules
and Regulations are attached, no sign, placard, picture, advertisement, name or
notice shall be installed or displayed on any part of the outside or inside of
the Building without the prior written consent of Landlord. Landlord shall have
the right to remove, at Tenant's expense and without notice, any sign installed
or displayed in violation of this rule. All approved signs or lettering on doors
and walls shall be printed, painted, affixed or inscribed at the expense of
Tenant by a person approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades,
screens or hanging plants or other similar objects attached to or used in
connection with any window or door of the Premises, or placed on any windowsill,
which is visible from the exterior of the Premises, Tenant shall immediately
discontinue such use. Tenant shall not place anything against or near glass
partitions or doors or windows which may appear unsightly from outside the
Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits,
entrances, elevators, escalators, or stairways of the Project. The halls,
passages, exits, entrances, elevators, and stairways are not open to the general
public, but are open, subject to reasonable regulation, to Tenant's business
invitees. Landlord shall in all cases retain the right to control and prevent
access thereto of all persons whose presence in the judgment of Landlord would
be prejudicial to the safety, character, reputation and interest of the Project
and its tenants; provided that nothing herein contained shall be construed to
prevent such access to persons with whom any tenant normally deals in the
ordinary course of its business, unless such persons are engaged in illegal or
unlawful activities. No tenant and no employee or invitee of any tenant shall go
upon the roof of any building of the Project.
4. The directory of the building will be provided exclusively for the
display of the name and location of tenants only, and Landlord reserves the
right to exclude any other names therefrom.
5. All cleaning and janitorial services for the Project and the
Premises shall be provided exclusively through Landlord, and except with the
written consent of Landlord, no person or persons other than those approved by
Landlord shall be employed by Tenant or permitted to enter the Building for the
purpose of cleaning the same. Tenant shall not cause any unnecessary labor by
carelessness or indifference to the good order and cleanliness of the Premises.
6. Landlord will furnish Tenant, free of charge, with two keys to each
door lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and Tenant
shall not alter any lock or install a new additional lock or bolt on any door of
its Premises. Tenant, upon the termination of its tenancy, shall deliver to
Landlord the keys of all doors which have been furnished to Tenant, and in the
event of loss of any keys so furnished, shall pay Landlord therefor.
7. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions in
their installation.
8. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. Landlord shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the Project. Heavy objects shall, if considered necessary by
Landlord, stand on such platforms as determined by Landlord to be necessary to
properly distribute the weight, which platforms shall be provided at Tenant's
expense. Business machines and mechanical equipment belonging to Tenant, which
cause noise or vibration that may be transmitted to the structure of the
Premises or to any space therein to such a degree to be objectionable to
Landlord or to any tenants in the Project, shall be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The persons employed to move such
equipment in or out of the Premises must be acceptable to Landlord. Landlord
will not be responsible for loss of, or damage to, any such equipment or other
property from any cause, and all damage done to the Premises, by maintaining or
moving such equipment or other property shall be repaired at the expense of
Tenant.
9. Tenant shall not use or keep in the Premises any kerosene, gasoline
or inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment.
Tenant shall not use or permit to be used in the Premises any foul or noxious
gas or substance, or permit or allow the Premises to be occupied or used in a
manner offensive or objectionable to Landlord or other occupants of the Project
by reason of noise, odors or vibrations, nor shall Tenant bring into or keep in
or about the Premises any birds or animals.
10. Tenant shall not use any method of heating or air-conditioning
other than that supplied by Landlord.
11. Tenant shall not waste electricity, water or air-conditioning and
agrees to cooperate fully with Landlord to assure the most effective operation
of the Premises' heating and air-conditioning and to comply with any
governmental energy-saving rules, laws or regulations of which Tenant has actual
notice, and shall refrain from attempting to adjust controls. Tenant shall keep
corridor doors closed, and shall close window coverings at the end of each
business day.
12. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Premises.
13. Landlord reserves the right to exclude from the Project between the
hours of 6 p.m. and 7 a.m. the following day, or such other hours as may be
established from time to time by Landlord, and on Sundays and legal holidays,
any person unless that person is known to the person or employee in charge of
the Project or has a pass or is properly identified. Tenant shall be responsible
for all persons for whom it requests passes and shall be liable to Landlord for
all acts of such persons. Landlord shall not be liable for damages for any error
with regard to the admission to or exclusion from the Project of any person.
Landlord reserves the right to prevent access to the Project in case of
invasion, mob, riot, public excitement or other commotion by closing the doors
or by other appropriate action.
14. Tenant shall close and lock the doors of its Premises and entirely
shut off all water faucets or other water apparatus, and unused electricity or
gas before tenant and its employees leave the Premises. Tenant shall be
responsible for any damage or injuries sustained by other tenants or occupants
of the Project or by Landlord for noncompliance with this rule.
15. Intentionally Omitted.
16. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage of damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees or
invitees, shall have caused it.
17. Tenant shall not sell, or permit the sale at retail, of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise to the
general public in or on the Premises. Tenant shall not make any suite-to-suite
solicitation of business from other tenants in the Project. Tenant shall not use
the Premises for any business or activity other than that specifically provided
for in Tenant's Lease.
18. Tenant shall not install any radio or television antenna,
loudspeaker or other devices on the roof or exterior walls of the Premises.
Tenant shall not interfere with radio or television broadcasting or reception
from or in the Project or elsewhere.
19. Tenant shall not xxxx, drive nails, screw or drill into the
partitions, woodwork or plaster or in any way deface the Premises or any part
thereof except for non-structural cosmetic items, such as hanging pictures and
white boards or as otherwise permitted under the Lease pertaining to
alterations. Landlord reserves the right to direct electricians as to where and
how telephone and telegraph wires are to be introduced to the Premises. Tenant
shall not cut or bore holes for wires. Tenant shall not affix any floor covering
to the floor of the Premises in any manner except as approved by Landlord.
Tenant shall repair any damage resulting from noncompliance with this rule.
20. Tenant may install, maintain or operate upon the Premises vending
machines for the exclusive use of its employees.
21. Canvassing, soliciting and distributing of handbills or any other
written material, and peddling in the Project are prohibited, and Tenant shall
cooperate to prevent such activities.
22. Landlord reserves the right to exclude or expel from the Project
any person who, in Landlord's judgment, is intoxicated or under the influence of
liquor or drugs or who is in violation of any of the Rules and Regulations of
the Project.
23. Tenant shall store all its trash and garbage within its Premises or
in other facilities provided by Landlord. Tenant shall not place in any trash
box or receptacle any material which cannot be disposed of in the ordinary and
customary manner of trash and garbage disposal. All garbage and refuse disposal
shall be made in accordance with directions issued from time to time by
Landlord.
24. The Premises shall not be used for the storage of merchandise held
for sale to the general public, or for lodging or for manufacturing of any kind,
nor shall the Premises be used for any improper, immoral or objectionable
purpose. No cooking shall be done or permitted on the Premises without
Landlord's consent, except that use by Tenant of Underwriter's Laboratory
approved equipment for brewing coffee, tea, hot chocolate and similar beverages
or use of microwave ovens for employee use shall be permitted, provided that
such equipment and use is in accordance with all applicable federal, state,
county and city laws, codes, ordinances, rules and regulations.
25. Tenant shall not use in the Premises any hand truck except those
equipped with rubber tires and side guards or such other material-handling
equipment as Landlord may approve. Tenant shall not bring any other vehicles of
any kind into the Premises.
26. Without the written consent of Landlord, Tenant shall not use the
name of the Project in connection with or in promoting or advertising the
business of Tenant except as Tenant's address.
27. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
28. Tenant and its employees, guests and invitees shall not enter into
the waterways located in the Project. No object of any kind may be floated or
submerged in the waterways, and no foreign substance of any kind may be thrown
in the waterways. The expense of any breakage or damage to any mechanical
equipment related to the waterways resulting from violation of this rule or any
expense incurred restoring the waterways to their normal condition shall be
borne by the tenant who, or whose employees or invitees, shall have caused such
damage.
29. Tenant assumes any and all responsibility for protecting its
Premises from theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to the Premises closed.
30. Tenant's requirements will be attended to only upon appropriate
application to the Project management office by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of their
regular duties unless under special instructions from Landlord, and no employee
of Landlord will admit any person (Tenant or otherwise) to any office without
specific instructions from Landlord.
31. Landlord may waive any one or more of these Rules and Regulations
for the benefit of Tenant or any other tenant, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of Tenant
or any other tenant, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all of the tenants of the Project.
32. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of Tenant's lease of its Premises in the
Project.
33. Landlord reserves the right to make such other and reasonable Rules
and Regulations as, in its judgment, may from time to time be needed for safety
and security, for care and cleanliness of the Project and for the preservation
of good order therein. Tenant agrees to abide by all such Rules and Regulations
hereinabove stated and any additional rules and regulations which are adopted.
Tenant acknowledges the City of Pleasanton's Transportation Systems Management
Ordinance (TSM Ordinance, Chapter 17.24, Pleasanton Municipal Code), as said
Ordinance may be amended from time to time and shall comply if and to the extent
Tenant's compliance is required by Applicable Law.
34. Tenant shall be responsible for the observance of all of the
foregoing rules by Tenant's employees, agents, clients, customers, invitees and
guests.
EXHIBIT E
PARKING RULES AND REGULATIONS
The following rules and regulations shall govern use of the parking facilities
which are appurtenant to the Building.
1. Landlord is not responsible for any damage or for the act of
omissions of others, or for articles left in the car. Landlord
is not responsible for loss of use.
2. Tenant shall not park or permit the parking of any vehicle
under its control in any parking areas designated by Landlord
as areas for parking by visitors to the Building. Tenant shall
not leave vehicles in the parking areas overnight nor park any
vehicles in the parking areas other than automobiles,
motorcycles, motor driven or non-motor driven bicycles or
four-wheeled trucks.
3. Parking stickers or any other device or form of identification
supplied by Landlord as a condition of use of the Parking
Facilities shall remain the property of Landlord. Such parking
identification device must be displayed as requested and may
not be mutilated in any manner. The serial number of the
parking identification device may not be obliterated. Devices
are not transferable and any device in the possession of an
unauthorized holder will be void.
4. No overnight or extended term storage of vehicles shall be
permitted.
5. Vehicles must be parked entirely within the painted stall
lines of a single parking stall.
6. All directional signs and arrows must be observed.
7. The speed limit within all parking areas shall be 5 miles per
hour.
8. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
(c) where "no parking" signs are posted;
(d) on ramps;
(e) in cross hatched areas; and
(f) in such other areas as may be designated by Landlord or
Landlord's Parking Operator.
9. Every xxxxxx is required to park and lock his own vehicle. All
responsibility for damage to vehicles is assumed by the
xxxxxx.
10. Loss of theft of parking identification devices from
automobiles must be reported immediately, and a lost or stolen
report must be filed by the customer at that time. Landlord
has the right to exclude any car from the parking facilities
that does not have an identification.
11. Any parking identification devices reported lost or stolen
found on any unauthorized car will be confiscated and the
illegal holder will be subject to prosecution.
12. Lost or stolen devices found by the purchaser must be reported
immediately to avoid confusion.
13. Washing, waxing, cleaning or servicing of any vehicle in any
area not specifically reserved for such purpose is prohibited.
14. Landlord reserves the right to refuse the sale of monthly
stickers or other parking identification devices to any tenant
or person and/or his agents or representatives who willfully
refuse to comply with these Rules and Regulations and all
unposted City, State or Federal ordinances, laws or
agreements.
15. Landlord reserves the right to modify and/or adopt such other
reasonable and non-discriminatory rules and regulations for
the parking facilities as it deems necessary for the operation
of the parking facilities. Landlord may refuse to permit any
person who violates these rules to park in the parking
facilities, and any violation of the rules shall subject the
car to removal.
EXHIBIT F
COMMENCEMENT DATE MEMORANDUM
With respect to that certain lease ("Lease") dated _____________, 19
between __________________________ a ______________________ ("Tenant"), and
_________________________________, a Delaware limited liability company
("Landlord"), whereby Landlord leased to Tenant and Tenant leased from Landlord
approximately _______ rentable square feet of the building located at
___________________________ ("Premises"), Tenant hereby acknowledges and
certifies to Landlord as follows:
(1) Landlord delivered possession of the Premises to Tenant in a
Substantially Completed condition on _____________________________ ("Possession
Date");
(2) The Lease commenced on ________________________ ("Commencement
Date");
(3) The Premises contain __________ rentable square feet of space; and
(4) Tenant has accepted and is currently in possession of the Premises
and the Premises are acceptable for Tenant's use.
(5) Tenant's Share is ___________________________
(6) Base Rent Per Month is __________________
IN WITNESS WHEREOF, this Commencement Date Memorandum is executed this
day of ________________.
"Tenant"
_______________________________________
_______________________________________
By: __________________________________
Its: ____________________________
By: __________________________________
Its: ____________________________
