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EXHIBIT 10.3
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE ("Agreement") is made this 17th
day of December, 1998 by and between LUCENT TECHNOLOGIES INC., a Delaware
corporation, having an address at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx,
00000 ("Assignor") and BROOKTROUT TECHNOLOGY, INC., a Massachusetts corporation,
having an address at 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx, 00000
("Assignee")
WITNESSETH:
WHEREAS, Los Gatos Business Park, a general partnership, as Landlord,
and Rhetorex, Incorporated ("Rhetorex"), as Tenant, entered into a lease dated
November 16, 1995 (the "Lease"), a complete copy of which is attached hereto as
Exhibit A, in which Landlord leased to Rhetorex and Rhetorex hired from Landlord
approximately 33,290 rentable square feet (the "Premises") located at 000
Xxxxxxxx Xxx, Xxx Xxxxx, Xxxxxxxxxx (the "Building");
WHEREAS, Octel Communications Corporation ("Octel") became successor by
merger to Rhetorex;
WHEREAS, Octel assigned its right, title and interest in and to the
Lease to Assignor, parent corporation of Octel, pursuant to an Assignment and
Assumption of Lease dated March 1, 1998;
WHEREAS, in accordance with Section 21 of the Lease, Assignor desires
to assign all its right, title and interest in the Lease to Assignee, pursuant
to the acquisition by Assignee of substantially all of the former assets of
Rhetorex by Assignee, and Assignee desires to accept such assignment, on the
terms set forth herein.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is acknowledged by the parties, Assignor and Assignee agree as follows:
1. Assignor hereby assigns and transfers all of its right, title and
interest in and to the Lease to Assignee to have and to hold the same from the
18th day of December, 1998 (the "Effective Date"), for all the rest of the term
of the Lease, and subject to all the terms, covenants, conditions and provisions
therein contained.
2. Assignee accepts the Assignment and assumes and agrees to perform,
from and after the Effective Date in a direct obligation to Landlord, all of the
terms, covenants, conditions and provisions of the Lease, as though the Assignee
were the original signatory to the Lease. Assignee shall make all payments of
rent, additional rent and all other sums due under the Lease accruing from and
after the Effective Date in accordance with the terms of the
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Lease and shall send the same directly to Landlord as provided in the Lease.
Assignee agrees to look solely to Landlord for provision of services under the
Lease.
3. Assignor shall be responsible for all of the terms, covenants,
conditions, payments and provisions of the Lease prior to the Effective Date.
Assignor shall continue to be secondarily liable for all of the terms,
covenants, conditions, payments and provisions of the Lease for the remaining
term of the Lease.
4. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their personal representatives, successors and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed the instrument
the date first above written.
LUCENT TECHNOLOGIES INC.
(ASSIGNOR)
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Transaction Manager
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BROOKTROUT TECHNOLOGY, INC.
(ASSIGNEE)
By: /s/ XXXXXX X. XXXXX
---------------------------------
Name: Xxxxxx X. XxxxX
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Title: Vice President
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The undersigned hereby acknowledges, agrees and consents to the above assignment
pursuant to Section 21 of the Lease. The undersigned further agrees to look to
Assignee as Lessee under the Lease and acknowledges that the attached Lease has
not been amended and that to the best of the undersigned's knowledge, Assignor
is not in default under the Lease, nor will assignment cause the Lease to be in
default.
LOS GATOS BUSINESS PARK
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
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Title: General Manager
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LEASE
THIS LEASE is made on the 16th day of November, 1995 by and between Los
Gatos Business Park (hereinafter called "Lessor") and Rhetorex, Incorporated, a
California Corporation (hereinafter called "Lessee").
IN CONSIDERATION OF THE MUTUAL PROMISES HEREIN CONTAINED,
THE PARTIES AGREE AS FOLLOWS:
1. PREMISES. Lessor leases to Lessee, and Lessee leases from Lessor, upon
the terms and conditions herein set forth, those certain Premises
("Premises") situated in the Town of Los Gatos, County of Santa Clara,
California, as outlined in Exhibit "A" attached hereto and described as
follows: +/- 33,290 square foot building commonly known as 000 Xxxxxxxx
Xxx, Xxx Xxxxx, Xxxxxxxxxx. Lessee's pro-rata share of the building is
100%.
2. TERM. The term of this Lease shall be for five (5) years, commencing
the later of (a) February 1, 1996 and (b) the date by which all of the
following have occurred: (1) Lessor has substantially completed the
improvements set forth on Exhibit B in accordance with the terms of
this Lease (the "Improvements"); (ii) there remains no incomplete or
defective item of Improvements that would adversely affect Lessee's
intended use of the Premises: (iii) Lessor has delivered legal
possession of the Premises to Lessee; and (iv) Lessor has obtained all
approvals and permit from the appropriate governmental authorities
required to be obtained by Lessor for the legal occupancy of the
Premises (the "Commencement Date").
3. RENT. Lessee shall pay to Lessor rent for the Premises of Thirty-Four
Thousand Nine Hundred Fifty-Five and 00/100 Dollars ($34,955.00) per
month in lawful money of the United States of America, subject to
adjustment as provided in Section A of this Paragraph. Rent shall be
paid without deduction or offset, prior notice, or demand, at such
place as may be designated from time to time by Lessor as follows:
$34,955.00 shall be paid upon execution of the Lease, which sum
represents the amount of the first month's rent. A deposit of
$34,955.00 as a Security Deposit shall be made by Lessee and held by
Lessor pursuant to Paragraph 5 of this Lease, and shall be paid upon
execution of the Lease. If Lessee is not in default of this Lease, this
sum, without interest thereon, shall be applied toward the rent due for
the last month of the term of this Lease or the extended term, pursuant
to any extension of the initial term in accordance with the provisions
of this Lease. Rent shall be paid in advance on the first (1st) day of
each calendar month as follows:
Months Monthly Rent/nnn
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01-12 $34,955.00
13-24 $36,953.00
25-36 $36,952.00
37-48 $37,951.00
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49-60 $38,949.00
Rent for any period during the term hereof which is for less than one (1) full
month shall be a pro-rata portion of the monthly rent payment. Lessee
acknowledges that late payment by Lessee to Lessor of rent or any other payment
due Lessor will cause Lessor to incur costs not contemplated by this Lease, the
exact amount of such costs being extremely difficult and impracticable to fix.
Such costs include, without limitation, processing and accounting charges, and
late charges that may be imposed on Lessor by the terms of any encumbrance and
note secured by any encumbrance covering the Premises. Therefore, if any
installment of rent or other payment due from Lessee is not received by Lessor
within five (5) days following the date it is due and payable, Lessee shall pay
to Lessor an additional sum of five percent (5%) of the overdue amount as a late
charge. The parties agree that this late charge represents a fair and reasonable
estimate of the costs that Lessor will incur by reason of late payment by
Lessee. Acceptance of any late charge shall not constitute a waiver of Lessee's
default with respect to the overdue amount, nor prevent Lessor from exercising
any of the other rights and remedies available to Lessor.
If, for any reason whatsoever, Lessor cannot deliver possession of the
Premises on February 1, 1995, this Lease shall not be void or voidable, nor
shall Lessor be liable to Lessee for any loss or damage resulting therefrom.
Notwithstanding anything to the contrary in this Lease, if the Commencement Date
has not occurred on or before May 1, 1996, then, in addition to Lessee's other
rights and remedies, Lessee may terminate this Lease by written notice to
Lessor, whereupon any monies previously paid by Lessee to Lessor shall be
reimbursed to Lessee or, at Lessee's election, the date Lessee is otherwise
obligated to commence payment of rent shall be delayed by one day for each day
that the Commencement Date is delayed beyond such date. In the event that Lessor
shall permit Lessee to occupy the Premises prior to the commencement date of the
term, such occupancy shall be subject to all of the provisions of this Lease,
excluding the obligation to pay rent at the same monthly rate as that prescribed
for the first month of the Lease term.
A. COST-OF-LIVING INCREASE. Not applicable.
B. All taxes, insurance premiums, Outside Area Charges, late
charges, costs and expenses which Lessee is required to pay
hereunder, together with all interest and penalties that may
accrue thereon in the event of Lessee's failure to pay such
amounts, and all reasonable damages, costs, and attorney's fees
and expenses which Lessor may incur by reason of any default of
Lessee or failure on Lessee's part to comply with the terms of
this Lease, shall be deemed to be additional rent (hereinafter,
"Additional Rent"), and, in the event of non-payment by Lessee,
Lessor shall have all of the rights and remedies with respect
thereto as Lessor has for the non-payment of monthly installment
of rent.
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4. OPTION TO EXTEND TERM.
A. Lessee shall have the option to extend the term on all the
provisions contained in this Lease for one (1) five (5) year
period ("extended term(s)") at an adjusted rental calculated as
provided in Subparagraph B below on the condition that:
(1) Lessee has given to Lessor written notice of exercise of
that option ("option notice") at least six (6) months
before expiration of the initial term or extended term(s),
as the case may be.
(2) Lessee is not in default of the Lease on the date of giving
the option notice, and Lessee is not in default on the date
that the extended term is to commence.
B. RENT FOR OPTION PERIOD: The rent during the extended term shall
be the then current fair market monthly rent ("Fair Market Rent")
for the Premises as of the commencement date of the applicable
extended term, as determined by the agreement of the parties or,
if the parties cannot agree within sixty (60) days prior to the
commencement of such extended term, then by an appraisal. All
other terms and conditions contained in the Lease as the same may
be amended from time to time by the parties in accordance with
the provisions of the Lease, shall remain in full force and
effect and shall apply during the Option term.
If it becomes necessary to determine the fair market rental value
for the Premises by appraisal, real estate appraiser(s), all of
whom shall be members of the American Institute of Real Estate
Appraisers and have at least five (5) years experience appraising
office space located in the vicinity of the Premises and none of
whom shall have worked for either Lessor or Lessee in the five
(5) year period preceding the commencement date of the applicable
extended term, shall be appointed and shall act in accordance
with the following procedures:
1. If the parties are unable to agree on the Fair Market
within the allowed time, either party may demand an
appraisal by giving written notice to the other party,
which demand to be effective must state the name, address
and qualifications of an appraiser selected by the party
demanding an appraisal (the "Notifying Party"). Within ten
(10) days following the Notifying Party's appraisal demand,
the other party (the "Non-Notifying Party) shall either
approve the appraiser selected by the notifying party or
select a second property qualified appraiser by giving
written notice of the name, address and qualification of
said appraiser to the Notifying Party. If the Non-Notifying
Party fails to select an appraiser within the ten (10) day
period, the appraiser selected by the Notifying Party shall
be deemed selected by both parties and no other appraiser
shall be selected. If two appraisers are selected, they
shall select a third appropriately qualified appraiser. If
the two appraisers fail to select a third qualified
appraiser, the third appraiser shall be appointed
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by the then presiding judge of the county where the
Premises are located upon application by either party.
2. If only one appraiser is selected, that appraiser shall
notify the parties in simple letter form of its
determination of the Fair Market Rent for the Premises
within fifteen (15) days following his selection, which
appraisal shall be conclusively determinative and binding
on the parties as the appraised Fair Market Rent.
3. If multiple appraisers are selected, the appraisers shall
meet no later than ten (10) days following the selection of
the last appraiser. At such meeting the appraisers shall
attempt to determine the Fair Market Rent for the Premises
as of the commencement date of the extended term by the
agreement of at least two (2) of the appraisers.
4. If two (2) or more of the appraisers agree on the Fair
Market Rent for the Premises at the initial meeting, such
agreement shall be determinative and binding upon the
parties hereto and the agreeing appraisers shall, in simple
letter form executed by the agreeing appraisers, forthwith
notifying both Lessor and Lessee of the amount set by such
agreement. If multiple appraisers are selected and two (2)
appraisers are unable to agree on the Fair Market Rent for
the Premises, all appraisers shall submit to Lessor and
Lessee an independent appraisal of the Fair Market Rent for
the Premises in simple letter form within twenty (20) days
following appointment of the final appraiser. The parties
shall then determine the Fair Market Rent for the Premises
by averaging the appraisals; provided that any high or low
appraisal, differing from the middle appraisal by more than
ten percent (10%) of the middle appraisal, shall be
disregarded in calculating the average.
5. The appraisers' determination of Fair Market Rent shall be
based on rental of space of the same age, construction,
size and location as the Premises with the improvements
installed therein at Lessor's expense and shall take into
account Lessee's obligations to pay additional rent under
this Lease. In determining Fair Market Rent, the appraisers
shall not consider any alterations installed in the
Premises at Lessee's expense.
6. If only one appraiser is selected, then each party shall
pay one-half of the fees and expenses of that appraiser. If
three appraisers are selected, each party shall bear the
fees and expenses of the appraiser it selects and one-half
of the fees and expenses of the third appraiser.
5. SECURITY DEPOSIT. Lessor acknowledges that Lessee has deposited with
Lessor a Security Deposit in the sum of $34,955.00 to secure the full
and faithful performance by Lessee of each term, covenant, and
condition of this Lease. If Lessee shall at any
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time fail to make any payment or fail to keep or perform any term,
covenant, or condition on its part to be made or performed or kept
under this Lease, Lessor may, but shall not be obligated to and without
waiving or releasing Lessee from any obligation under this Lease, use,
apply, or retain the whole or any part of said Security Deposit (a) to
the extent of any sum due to Lessor; or (b) to compensate Lessor for
any loss, damage, attorneys' fees or expense sustained by Lessor due to
Lessee's default. In such event, Lessee shall, within five (5) days of
written demand by Lessor, remit to Lessor sufficient funds to restore
the Security Deposit to its original sum. No interest shall accrue on
the Security Deposit. Should Lessee comply with all the terms,
covenants, and conditions of this Lease and, at the end of the term of
this Lease, leave the Premises in the condition required by this Lease,
then said Security Deposit or any balance thereof, less any sums owing
to Lessor, shall be returned to Lessee within fifteen (15) days after
the termination of this Lease and vacancy of the Premises by Lessee.
Notwithstanding the foregoing, within thirty (30) days after the
termination of this Lease, Lessor shall return to Lessee the entire
Security Deposit except for amounts that Lessor has deducted therefrom
that are needed by Lessor to cure defaults of Lessee under this Lease
or compensate Lessor for damages for which Lessee is liable pursuant to
this Lease. Lessor can maintain the Security Deposit separate and apart
from Lessors general funds, or can co-mingle the Security Deposit with
the Lessor's general and other funds.
6. USE OF THE PREMISES. The Premises shall be used exclusively for the
purpose of general office, sales, marketing, engineering and research
and development, board repair and assembly for voice processing
software and hardware products and related materials.
Lessee shall not use or permit the Premises, or any part
thereof, to be used for any purpose or purposes other than the purpose
for which the Premises are hereby leased without Lessor's prior written
consent; and no use shall be made or permitted to be made of the
Premises, acts done, which will increase the existing fate of insurance
upon the building in which the Premises are located unless Lessee pays
the cost of any such increase or cause a cancellation of any insurance
policy covering said building, or any part thereof, nor shall Lessee
sell or permit to be kept, used, or sold, in or about the Premises, any
article which may be prohibited by the standard form of fire insurance
policies. Lessee shall not commit or suffer to be committed any waste
upon the Premises or any public or private nuisance or other act or
thing which may disturb the quiet enjoyment of any other tenant in the
building in which the premises are located; nor, without limiting the
generality of the foregoing, shall Lessee allow the Premises to be used
for any improper, immoral, unlawful, or objectionable purpose.
Lessee shall not place any harmful liquids in the drainage system
of the Premises or of the building of which the Premises form a part.
No waste materials or refuse shall be dumped upon or permitted to
remain upon any part of the Premises outside of the building proper
except in trash containers placed inside exterior enclosures designated
for that purpose by Lessor, or inside the building proper where
designated by Lessor. No materials, supplies, equipment, finished or
semi-finished products, raw materials, or articles of any nature shall
be stored upon or permitted to remain on any portion of the Premises
outside of the building proper. Lessee shall
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comply with all the covenants, conditions, and/or restrictions ("C.C. &
R.'s") affecting the Premises.
Lessor represents and warrants to Lessee that to the best of its
knowledge (i) there are no Toxic or Hazardous materials present on, at
or under the Premises, which shall be deemed to include underlying land
and groundwater, at the time of Lessee's occupancy, (ii) no underground
storage tanks or asbestos containing materials are present on the
Premises, and (iii) no action, proceeding, or claim is pending or
threatened concerning the Premises concerning any Toxic or Hazardous
material or pursuant to any environmental Law. Lessor shall indemnify,
defend and hold harmless Lessee, its partners, directors, officers,
employees, lenders, and successors against all claims, obligations,
liabilities, demands, damages, judgements, and costs, including
reasonable attorneys' fees arising from or in connection with any prior
Toxic or Hazardous materials that existed prior to Lessee's occupancy
of the Premises or arising out of or based upon the Presence of any
Toxic or Hazardous materials on, under, in or about the Premises,
unless Lessee or Lessee's agents, employees, contractors or invitees
caused the presence of such Toxic or Hazardous materials in, on, about
or under the Premises. Lessee in turn represents to Lessor that it does
not now and will not in the future permit the use or storage on the
Premises of Toxic or Hazardous materials, excluding, however basic
janitorial, maintenance and office supplies, and materials commonly
used in connection with Lessee's business as described in paragraph 6
hereof and the substances listed on Exhibit D hereto. For purposes of
this paragraph 6 "Toxic or Hazardous Materials" shall mean any product,
substance, chemical, material or waste whose presence, nature, quality
and/or intensity or existence, use, manufacture, disposal,
transportation, spill, release or effect, either by itself or in
combination with other materials expected to be on the leased premises,
is either (i) potentially injurious to the public health, safety or
welfare, the environment, or the leased premises; (ii) regulated or
monitored by any governmental authority and pertaining to health,
safety or the environment or (iii) a basis for potential liability of
Lessee and Lessor to any governmental agency or third party under any
applicable statute or common law theory and pertaining to health,
safety or the environment. "Toxic or Hazardous Materials" shall
include, but not be limited to, hydrocarbons, petroleum, gasoline,
crude oil or any products or by-products thereof.
Lessee hereunder shall be responsible for and indemnify, and hold
Lessor and its partners, directors, officers, employees, lenders,
successors and assigns harmless from all claims, obligations,
liabilities, demands, damages, judgments and costs, including
reasonable attorneys' fees arising at any time during or in connection
with Lessee or Lessee's agents, employees, contractors or invitees
causing any materials referred to under any governmental provisions or
regulatory scheme as "hazardous" or "toxic" or which contain petroleum,
gasoline, or other petroleum product, to be brought upon, stored,
manufactured, generated, handled, disposed, or used, on, under or about
the Premises.
Lessee's and Lessor's obligations hereunder shall survive the
termination of this Lease. If, at any time during the term of this
Lease, Lessor suspects that toxic waste, spillage, or other
contaminants may be present on the Premises, Lessor may order a soils
report, or its equivalent, at Lessee's expense and Lessee shall pay
such costs within fifteen (15) days from the date of the invoice by
Lessor if it is determined that
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Lessee or Lessee's agents, employees contractors or invitees released
or caused Toxic or Hazardous materials on or about the Premises. If any
such toxic waste, spillage, or other contaminants are found upon the
Premises which were released by Lessee or Lessee's agents, employees or
invitees Lessee shall deposit with Lessor, within fifteen (15) days of
notice from Lessor to Lessee to do so, the amount necessary to remove
the substances and remedy the problem.
Lessee shall abide by all laws, ordinances, and statutes, as they
now exist or may hereafter be enacted by legislative bodies having
jurisdiction thereof, relating to its use and occupancy of the
Premises.
Notwithstanding anything to the contrary in this Lease, (i) at
the Commencement Date, the Premises shall conform to all requirements
of covenants, conditions, restrictions and encumbrances ("CC&R's"), all
underwriter's requirements, and all rules, regulations, statutes,
ordinances, laws and building codes (including the Americans with
Disabilities Act of 1990) (collectively, "Laws") applicable thereto,
including without limitation, all Laws governing Toxic or Hazardous
materials.
In addition, and notwithstanding anything to the contrary in this
Lease, if the Premises should become not reasonably suitable for
Lessee's use as a consequence of cessation of utilities or other
services required to be provided to the Premises by Lessor,
interference with access to the Premises, legal restrictions or the
presence of any Toxic or Hazardous material which is not released or
caused by Lessee, Lessee's agents, employees, contractors or invitees,
and in any of the foregoing cases the interference with Lessee's use of
the Premises persists for seven (7) consecutive calendar days, then
Lessee shall be entitled to an equitable abatement of rent to the
extent of the interference with Lessee's use of the Premises occasioned
thereby.
7. IMPROVEMENTS: Lessor will provide an allowance of $14.00 per square
foot for improvements to the Premises as specified in Exhibit "B"
attached hereto and by this reference made a part hereof. Further,
Lessor agrees to provide an additional $2.50 per square foot for
improvements, to be amortized as Additional Rent, over the term of the
Lease at a rate of Bank of America's Prime plus 2%. Said payments shall
be due and payable by Lessee on the first of each month with the
monthly rent payment. However, should Lessee exercise its Option to
Expand as referred to in Section 35 of this Lease, Lessor shall waive
the monthly amortized payment effective upon Lessee's taking occupancy
of the Expansion Space. Lessor will make reasonable efforts to complete
such improvements prior to February 15, 1996. Possession of the
promises, pursuant to Paragraph 13 of this lease, shall be deemed
tendered on the Commencement Date. Lessor shall construct the
improvements described in the plans and specifications attached to this
Lease as Exhibit B at Lessor's sole cost and expense. The improvements
shall be constructed in accordance with such attached plans and
specifications and all applicable Laws, in a good and workmanlike
manner, free of defects and using new materials and equipment of good
quality. Within thirty (30) days after the Commencement Date, Lessee
shall have the right to submit a written "punch list" to Lessor,
setting forth any defective item of construction, and Lessor shall
promptly cause such items to be corrected. The improvements shall be
constructed in accordance with the Work Letter attached hereto as
Exhibit E, except that the "Expansion Space" shall mean the "Premises".
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8. TAXES AND ASSESSMENTS.
A. Lessee shall pay before delinquency any and all taxes,
assessments, license fees, and public charges levied, assessed,
or imposed upon or against Lessee's fixtures, equipment,
furnishings, furniture, appliances, and personal property
installed or located on or within the Premises. Lessee shall
cause said fixtures, equipment, furnishings, furniture,
appliances, and personal property to be assessed and billed
separately from the real property of Lessor. If any of Lessee's
said personal property shall be assessed with Lessor's real
property, Lessee shall pay to Lessor the taxes attributable to
Lessee within ten (10) days after receipt of a written statement
from Lessor setting forth the taxes applicable to Lessee's
property.
B. All property taxes or assessments levied or assessed by or
hereafter levied or assessed by any governmental authority
against the Premises or any portion of such taxes or assessments
which accrued during the term of this Lease shall be paid by
Lessor. Lessee shall pay to Lessor Lessee's proportionate share
of such taxes or assessments by the later of (i) ten (10) days
prior to the date such taxes are due and (ii) ten (10) days of
receipt of Lessor's invoice demanding such payment. Lessee's
liability hereunder shall be prorated to reflect the commencement
and termination dates of this Lease.
Notwithstanding anything to the contrary in this Lease,
Lessee shall not be required to pay any portion of any tax or
assessment expense (i) in excess of the amount which would be
payable if such tax or assessment expense were paid in
installments over the longest possible term; or (ii) occasioned
by Lessor's failure to pay timely or perform any obligation of
Lessor, provided that Lessee has timely paid its share of said
taxes or assessments. Lessee may in good faith contest any tax or
assessment, provided that Lessee indemnifies Lessor from any loss
or liability in connection therewith.
9. INSURANCE.
A. INDEMNITY. Lessee agrees to indemnify and defend Lessor against
and hold Lessor harmless from any and all demands, claims, causes
of action, judgments, obligations, or liabilities, and all
reasonable expenses incurred in investigating or resisting the
same (including reasonable attorneys' fees) on account of or
arising from Lessee's use of said Premises.
Lessor also agrees that it shall not be released or
indemnified from and shall indemnify and defend Lessee against
and hold Lessee harmless from any and all demands, claims, causes
of action, judgements, obligations, or liabilities and all
reasonable expenses incurred in investigating or resisting the
same (including reasonable attorneys fees) on account or arising
from Lessor's use and/or ownership of said Premises, Lessor's
violation of any Law or a breach of Lessor's obligations under
this Lease.
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B. LIABILITY INSURANCE. Lessee shall, at its expense, obtain and
keep in force during the term of this Lease a policy of
comprehensive public liability insurance insuring Lessor against
any liability arising out of the condition, use, or occupancy of
the Premises. Such insurance shall be in an amount not less than
one million dollars ($1,000,000) for bodily injury or death as a
result of one occurrence, and five hundred thousand dollars
($500,000) for damage to property as a result of any one
occurrence. The insurance shall be with companies rated A or
better by Best's Rating. Lessee shall deliver to Lessor a
certificate of insurance evidencing the existence of the policy
upon the request of Lessor which (1) names Lessor as an
additional insured, (2) shall not be canceled or reduced without
thirty (30) days' prior written notice to Lessor, (3) insures
performance of the indemnity set forth in Section A of Paragraph
9, and (4) coverage is primary and any coverage by Lessor is in
excess thereto to the extent it is available from Lessee's
insurance carrier.
Lessor also agrees to maintain during the term of this
Lease a policy of comprehensive public liability insurance
protecting Lessor for interest in such Property. Such insurance
shall be in an amount not less than one million dollars
($1,000,000) for bodily injury or death as a result of one
occurrence, and five hundred thousand dollars ($500,000) for
damage to Property as a result of any one occurrence.
C. PROPERTY INSURANCE. Lessor shall obtain and keep in force during
the term of this Lease a policy or policies of "all-risk,
extended coverage" property insurance covering loss or damage to
the Premises, in the amount of the full replacement value
thereof. Lessee shall pay to Lessor its pro-rata share of the
cost of said insurance within twenty (20) days of Lessee's
receipt of Lessor's invoice demanding such payment. Lessee
acknowledges that such insurance procured by Lessor shall contain
a deductible which reduces Lessee's cost for such insurance, and,
in the event of loss or damage, Lessee shall be required to pay
to Lessor the amount of such deductible. Lessor, agrees that in
no event shall said deductible exceed $1,000 per occurrence.
Lessee agrees to maintain an All Risk Property policy
covering Lessee's owned contents and improvements.
D. EARTHQUAKE INSURANCE. Lessor does not currently carry earthquake
insurance. However, Lessor reserves the right to do so should it
become available at a commercially reasonable rate. If available,
earthquake premium rates shall not exceed 2 times the rate paid
for All Risk Property insurance.
E. Notwithstanding anything to the contrary in this Lease, the
parties hereto release each other and their respective agents,
employees, successors, assigns; and subleases from all liability
for injury to any person or damage to any property that is caused
by or results from a risk which is actually insured against or
which is required to be insured against under this Lease, without
regard to the negligence or willful misconduct of the entity so
released. Each party shall use its best efforts to cause such
insurance policy it obtains to
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provide that the insurer thereunder waives all right of recovery
by way of subrogation as required herein in connection with any
injury or damage covered by the policy. If the insurance policy
cannot be obtained with the waiver of subrogation, or if the
waiver of subrogation is available only at additional cost and
the party for whose benefit the waiver is not obtained does not
pay additional cost, then the party obtaining the insurance
immediately shall notify the other party of that fact.
10. REIMBURSABLE EXPENSES AND UTILITIES. Lessor represents that heating,
ventilation, air conditioning, water, gas, electricity, sewer and waste
pick-up utilities and services to the Premises as are reasonable and
customary for tenants engaged in Lessee's business at facilities of
comparable size and location to the Premises are available to the
Premises, and Lessor shall provide Lessee with access to the Premises
twenty-four (24) hours a day, seven (7) days a week. Lessee shall pay
for all water, gas, light, heat, power, electricity, telephone, trash
removal, landscaping, sewer charges, and all other services, including
normal, reasonable and customary property management fees, supplied to
or consumed on the Premises. In the event that any such services are
billed directly to Lessor, then Lessee shall pay Lessor for such
expenses within ten (10) days of Lessee's receipt of Lessors invoice
demanding payment.
11. REPAIRS AND MAINTENANCE.
A. Subject to provisions of paragraph 15, Lessor shall keep and
maintain in good order, condition and repair the structural
elements of the Premises including the roof, roof membrane,
paving, floor slab, foundation, exterior walls, landscaping,
irrigation and elevators. Lessor shall make such repairs,
replacements, alterations or improvements as Lessor deems
reasonably necessary with respect to such structural elements and
Lessee shall pay to Lessor, within ten days of Lessor's invoice
to Lessee therefor, Lessee's pro-rata share of such repairs,
replacements, alterations or improvements: provided however, that
replacement and improvement costs shall be amortized over the
useful-life of such replacements or improvements, and Lessee
shall be obligated to Pay on a monthly basis, as additional rent,
only the monthly-amortized amounts which coincide with the term
of the Lease, including any extensions. Notwithstanding the
foregoing, if the reason for any repair, replacement, alteration
or improvement is caused by Lessee or arises because of a breach
of Lessee's obligations under this Lease, then Lessee shall pay
100% of the costs or expense to remedy the same.
B. Except as expressly provided in Subparagraph A above, Lessee
shall, at its sole cost, keep and maintain the entire Premises
and every part thereof, including, without limitation, the
windows, window frames, plate glass, glazing, truck doors, doors,
all door hardware, interior of the Premises, interior walls and
partitions, and electrical, plumbing, fighting, heating, and air
conditioning systems in good and sanitary order, condition, and
repair. Lessee shall, at all times during the Lease term and at
his expense, have in effect a service contract
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for the maintenance of the heating, ventilating, and
air-conditioning (HVAC) equipment with an HVAC repair and
maintenance contractor approved by Lessor which provides for
periodic inspection and servicing at least once every three (3)
months during the term hereof. Lessee shall further provide
Lessor with a copy of such contract and all periodic service
reports.
Notwithstanding anything to the contrary in this Lease,
Lessor shall perform and construct, and Lessee shall have no
responsibility to perform, construct, pay directly, or to
reimburse Lessor for, any repair. maintenance or improvement (i)
necessitated by acts or omissions of Lessor or its agents,
employees or contractors, (ii) occasioned by fire, acts of God or
other casualty, subject to the provisions of Section 9, or by the
exercise of the power of eminent domain, (iii) for which Lessor
has a right of reimbursement from others, or (iv) which would be
treated as a "capital expenditures under generally accepted
accounting principles. Notwithstanding the foregoing, Lessee
shall pay for the costs set forth in (iv) as provided in Section
11.A hereof.
Should Lessee fail to maintain the Premises or make repairs
required of Lessee hereunder forthwith upon notice from Lessor,
Lessor, in addition to all other remedies available hereunder or
by law, and without waiving any alternative remedies, may make
the same, and in that event, Lessee shall reimburse Lessor as
additional rent for the cost of such maintenance or repairs on
the next date upon which rent becomes due.
Lessee hereby expressly waives the provision of Subsection
1 of Section 1932, and Sections 1941 and 1942 of the Civil Code
of California and all rights to make repairs at the expense of
Lessor, as provided in Section 942 of said Civil Code.
12. ALTERATIONS AND ADDITIONS. Lessee shall not make, any alterations,
improvements, or additions in, on, or about, or to the Premises any
part thereof, without prior written consent of Lessor and without a
valid building permit issued by the appropriate governmental authority.
Lessor retains, at his sole option, the right to retain a General
Contractor of his own choosing to perform all repairs, alterations,
improvements, or additions in, on, about, or to said Premises or any
part thereof. As a condition to giving such consent, Lessor may require
that Lessee agree to remove any such alterations, improvements, or
additions at the termination of this Lease, and to restore the Premises
to their prior condition. Any alteration, addition, or improvement to
the Premises, shall become the property of Lessor upon installation,
and shall remain upon and be surrendered with the Premises at the
termination of this Lease. Lessor can elect, however, within thirty
(30) days before expiration of the term or within five (5) days after
termination of the term, to require Lessee to remove any alterations,
additions, or improvements that Lessee has made to the Premises. If
Lessor so elects, Lessee shall restore the Premises to the condition
designated by Lessor in its election, before the last day of the term,
or within thirty (30) days after notice of election is given, whichever
is later. Alterations and additions which are not to be deemed as trade
fixtures include heating, lighting, electrical systems, air
conditioning, partitioning, electrical signs, carpeting, or any other
installation which has become an integral part of the Premises. In the
event that Lessor consents to Lessee's making any
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alterations, improvements, or additions, Lessee shall be responsible
for preparing and providing Lessor with a notice of non-responsibility,
which Lessor shall sign and return to Lessee for posting, which shall
remain posted until completion of the alterations, additions, or
improvements. Lessee's failure to post notices of non-responsibility as
required hereunder shall be a breach of this Lease.
Notwithstanding anything to the contrary in this Lease: (i)
Lessee may construct non-structural alterations, additions and
improvements that do not affect the HVAC or electrical systems, do not
penetrate the roof membrane or any structural element ("Alterations")
in the Premises without Lessor's Prior approval, if the cost of such
work does riot exceed Twenty-Five Thousand Dollars ($25,000): (ii)
Alterations constructed in the Premises by Lessee and Lessee's trade
fixtures, furniture, equipment and other personal property installed in
the Premises ("Lessee's Property") shall at all items be and remain
Lessee's property, and Lessee shall be entitled to all depreciation,
amortization and other tax benefits with respect thereto; (iii) Lessor
shall have no lien or other interest whatsoever in any item of Lessee's
property, and shall execute any document reasonably necessary to waive
any lien or interest in Lessee's property; and (iv) upon request,
Lessor shall advise Lessee in writing whether it reserves the right to
require Lessee to remove any alterations from the Premises upon
termination of this Lease.
Notwithstanding anything to the contrary herein, during the term
hereof, any alteration, addition, or change of any sort through all or
any portion of the Premises or of the building of which the Premises
form a part, is required by law, regulation, ordinance, or order of any
public agency, then if such legal requirement is not imposed because of
Lessee's specific use of the Premises and is not "triggered" by
Lessee's alterations or Lessee's application for a building permit or
any other governmental approval (in which instance Lessee shall be
responsible for 100% of the cost of such improvement), Lessor shall be
responsible for constructing such improvement and Lessee shall be
responsible for its proportional share of the cost for said improvement
amortized over the useful life of such improvement that coincides with
the remaining Lease term including any extensions.
13. ACCEPTANCE OF THE PREMISES AND COVENANT TO SURRENDER. By entry and
taking possession of the Premises pursuant to this Lease, Lessee
accepts the Premises as being in good and sanitary order, condition,
and repair, and accepts the Premises in their condition existing as of
date of such entry, and Lessee further accepts any tenant improvements
to be constructed by Lessor, if any, as being completed in accordance
with the plans and specifications for such improvements. Lessor shall
pass on to Lessee any warranties or guaranties it receives regarding
the construction of the improvements outlined on Exhibit B. On the
Commencement Date, the Premises shall be in good condition and repair
and the roof shall be watertight.
Lessee agrees on the last day of the term hereof, or on sooner
termination of this Lease, to surrender the Premises, together with all
alterations, additions, and improvements which may have been made in,
to, or on the Premises by Lessor or Losses, unto Lessor in good and
sanitary order, condition, and repair, excepting for such wear and tear
as would be normal for the period of the Lessee's occupancy casualties,
condemnation, Toxic or Hazardous materials (other than those released
or
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caused to be present by Lessee, Lessee's agents, employees, contractors
or invitees in or about the Premises) and Alterations with respect to
which Lessor has not reserved the right to require removal. Lessee, on
or before the end of the term or sooner termination of this Lease,
shall remove all its personal property and trade fixtures from the
Premises, and all property not so removed shall be deemed abandoned by
Lessee. Lessee further agrees that at the end of the term or sooner
termination of this Lease, Lessee, at its sole expense, shall have the
carpets steam cleaned, the walls and columns painted, the flooring
waxed, any damaged ceiling be replaced, the windows cleaned, the drapes
cleaned, and any damaged doors replaced if necessary to restore the
Premises to its original condition, normal wear and tear excepted.
If the Premises are not surrendered at the end of the term or
sooner termination of this Lease, Lessee shall indemnify Lessor against
loss or liability resulting from delay by Lessee in so surrendering the
Premises, including, without limitation, any claims made by any
succeeding tenant founded on such delay.
14. DEFAULT. Notwithstanding anything to the contrary in this Lease, Lessee
shall not be deemed to be in breach of or in default under this Lease
and Lessor shall not be entitled to cure any breach by Lessee or
exercise any remedy under this Lease, nor shall any late charge or
interest be imposed on account of (i) Lessee's failure to pay any sum
due to Lessor under this Lease, unless Lessee's failure to pay
continues for five (5) days after Lessee's receipt of written notice of
delinquency from Lessor, or (ii) Lessee's failure to perform any other
covenant of this Lease, unless failure to perform such covenant
continues for thirty (30) days after Lessee's actual receipt of written
notice, or such longer time as may reasonably required to cure the
default. In the event of any breach of this Lease by the Lessee, or an
abandonment of the Premises by the Lessee, the Lessor has the option of
(1.) removing all persons and property from the Premises and
repossessing the Premises, in which case any of the Lessee's property
which the Lessor removes from the Premises may be stored in a public
warehouse or elsewhere at the cost of, and for the account of, Lessee;
or (2.) allowing the Lessee to remain in full possession and control of
the Premises. If the Lessor chooses to repossess the Premises, the
Lease will automatically terminate in accordance with the provisions of
the California Civil Code, Section 19512. In the event of such
termination of the Lease, the Lessor may recover from the Lessee: (1.)
the worth at the time of award of the unpaid rent which had been earned
at the time of termination, including interest at Bank of America's
Prime rate plus 3%; (2.) the worth at the time of award of the amount
by which the unpaid rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss that the
Lessee proves could have been reasonably avoided, including interest at
Bank of America's Prime rate plus 3%; (3.) 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 such rental loss
that the Lessee proves could be reasonably avoided; and (4.) any other
amount necessary to compensate the Lessor for all the detriment
proximately caused by the Lessee's failure to perform his obligations
under the Lease or which, in the ordinary course of things, would be
likely to result therefrom. "The worth at the time of award," as used
in (1.) and (2.) of this Paragraph, is to be computed by allowing
interest at Bank of America's Prime rate plus 3%. "The worth
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at the time of award," as used in (3.) of this Paragraph, is to be
computed by discounting the amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award, plus one percent
(1%).
If the Lessor chooses not to repossess the Premises, but allows
the Lessee to remain in full possession and control of the Premises,
then, in accordance with provisions of the California Civil Code,
Section 1951.4, the Lessor may treat the Lease as being in full force
and effect, and may collect from the Lessee all rents as they become
due through the termination date of the Lease, as specified in the
Lease. For the purpose of this paragraph, the following do not
constitute a termination of Lessee's right to possession: (1.) acts of
maintenance or preservation, or efforts to relet the property; (2.) the
appointment of a receiver on the initiative of the Lessor to protect
his interest under this Lease.
Lessee shall be liable immediately to Lessor for all costs Lessor
incurs in reletting the Premises, including, without limitation,
brokers' commissions, expenses of remodeling the Premises required by
the reletting, and like costs. Reletting can be for a period shorter or
longer than the remaining term of this Lease. Lessee shall pay to
Lessor the rent due under this Lease on the dates the rent is due, less
the rent Lessor receives from any reletting. No act by Lessor allowed
by this Section shall terminate this Lease unless Lessor notifies
Lessee that Lessor elects to terminate this Lease. After Lessee's
default and for as long as Lessor does not terminate Lessee's right to
possession of the Premises, if Lessee obtains Lessor's consent, Lessee
shall have the right to assign of sublet its interest in this Lease,
but Lessee shall not be released from liability. Lessor's consent to a
proposed assignment or subletting shall not be unreasonably withheld.
If Lessor elects to relet the Premises as provided in this
Paragraph, rent that Lessor receives from reletting shall be applied to
the payment of: (1.) any indebtedness from Lessee to Lessor other than
rent due from Lessee; (2.) all costs, including for maintenance,
incurred by Lessor in reletting; (3.) rent due and unpaid under this
Lease. After deducting the payments referred to in this Paragraph, any
sum remaining from the rent Lessor receives from reletting shall be
held by Lessor and applied in payment of future rent as rent becomes
due under this Lease. In no event shall Lessee be entitled to any
excess rent received by Lessor. If, on the date rent is due under this
Lease, the rent received from reletting is less than the rent due on
that date, Lessee shall pay to Lessor, in addition to the remaining
rent due, all costs, including for maintenance, Lessor incurred in
reletting that remain after applying the rent received from the
reletting, as provided in this Paragraph.
Lessor, at any time after the notice and cure periods set forth
herein, can cure the default at Lessee's cost. If Lessor at any time,
by reason of Lessee's default, pays any sum or does any act that
requires the payment of any sum, the sum paid by Lessor shall be due
immediately from Lessee to Lessor at the time the sum is paid, and if
paid at a later date shall bear interest at Bank of America's Prime
rate plus 3% from the date the sum is paid by Lessor until Lessor is
reimbursed by Lessee. The sum, together with interest on it, shall be
additional rent.
Rent not paid when due shall bear interest at Bank of America's
Prime rate plus 3%.
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In addition to Lessee's other rights and remedies under this
Lease, if Lessor is in default of the Lease and has not cured such
default within thirty (30) days after Lessor's actual receipt of
written notice, or such longer time as may reasonably be required to
cure the default, then Lessee shall have the right to cure the default
and to demand reimbursement by Lessor of the cost of such cure.
15. DESTRUCTION. In the event the Premises are destroyed in whole or in
part from any cause, Lessor may, at its option, (1.) rebuild or restore
the Premises to their condition prior to the damage or destruction or
(2.) terminate the Lease.
If Lessor does not give Lessee notice in writing within thirty
(30) days from the destruction of the Premises of its election either
to rebuild and restore the Premises, or to terminate this Lease, Lessor
shall be deemed to have elected to rebuild or restore them, in which
event Lessor agrees, at its expense, promptly to rebuild or restore the
Premises to its condition prior to the damage or destruction. If Lessor
estimates that it cannot or does not complete the rebuilding or
restoration within one hundred fifty (150) days following the date of
destruction (such period of time to be extended for delays caused by
the fault or neglect of Lessee of because of acts of God, acts of
public agencies, labor disputes, strikes, fires, freight embargoes,
rainy or stormy weather, inability to obtain materials, supplies or
fuels, acts of contractors or subcontractors, or delay of the
contractors or subcontractors due to such causes or other contingencies
beyond control of Lessor), then Lessee shall have the right to
terminate this Lease by giving fifteen (16) days prior written notice
to Lessor. Lessor's obligation to rebuild or restore shall not include
restoration of Lessee's trade fixtures, equipment, merchandise, or any
improvements, alterations, or additions made by Lessee to the Premises.
Notwithstanding anything to the contrary in this Lease, Lessor shall
not have the right to terminate this Lease if damage to or destruction
of the Premises results from a casualty ordinarily covered by insurance
required to be carried by Lessor under this Lease. If the Premises are
damaged by any peril and Lessor does not elect to terminate this Lease
or is not entitled to terminate this Lease pursuant to its terms, then
within thirty (30) days thereof, Lessor shall furnish Lessee with a
written opinion of Lessor's architect or construction consultant as to
when the restoration work required of Lessor may be completed.
Lessee shall be entitled to a reduction in rent while such repair
is being made in proportion that the area of the Premises rendered
untenantable by such damage bears to the total area of the Premises.
Unless this Lease is terminated pursuant to the foregoing
provisions, this Lease shall remain in full force and effect. Lessee
hereby expressly waives the provisions of Section 1932, Subdivision 2,
and Section 1933, Subdivision 4, of the California Civil Code.
In the event that the building in which the Premises are situated
is damaged or destroyed to the extent of not less than thirty-three and
one-third percent (331/3%) of the replacement cost thereof, Lessor may
elect to terminate this Lease, whether the Premises be injured or not.
16. CONDEMNATION. If any part of the Premises shall be taken for any public
or quasi-public use, under any statute or by right of eminent domain,
or private purchase
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in lieu thereof, and a part thereof remains, which is susceptible of
occupation hereunder, this Lease shall, as to the part so taken,
terminate as of the date title shall vest in the condemnor or
purchaser, and the rent payable hereunder shall be adjusted so that the
Lessee shall be required to pay for the remainder of the term only such
portion of such rent as the value of the part remaining after taking
such bears to the value of the entire Premises prior to such taking.
Lessor and Lessee shall have the option to terminate this Lease in the
event that such taking causes a reduction in rent payable hereunder by
fifty percent (50%) or more. If all of the Premises or such part
thereof be taken so that there does not remain a portion susceptible
for occupation hereunder, as reasonably necessary for Lessee's conduct
of its business as contemplated in this Lease, this Lease shall
thereupon terminate. If a part of all of the Premises be taken, all
compensation awarded upon such taking shall go to the Lessor, and the
Lessee shall have no claim thereto, and the Lessee hereby irrevocably
assigns and transfers to the Lessor any right to compensation or
damages to which the Lessee may become entitled during the term hereof
by reason of the purchase or condemnation of all or a part of the
Premises, except that Lessee shall have the right to file its own claim
to recover its share of any award or consideration for (1.) moving
expenses; (2.) loss or damage to Lessee's trade fixtures, furnishings,
equipment, and other personal property; and (3.) business goodwill;
(4.) the Lease bonus value (the difference between the rent and fair
market value rent); (5.) the value of the condemned improvements Lessee
has the right to remove from the Premises; (6.) the unamortized value,
allocable to the remainder of the term of this Lease, of any
improvements installed at Lessee's expenses, which are not removable.
Each party waives the provisions of the Code of Civil Procedure,
Section 1266.130, allowing either party to petition the Superior Court
to terminate this Lease in the event of a partial taking of the
Premises.
17. FREE FROM LIENS. Lessee shall (1.) pay for all labor and services
performed for materials used by or furnished to Lessee, or any
contractor employed by Lessee with respect to the Premises, and (2.)
indemnify, defend, and hold Lessor and the Premises harmless and free
from any liens, claims, demands, encumbrances, or judgments created or
suffered by reason of any labor or services performed for materials
used by or furnished to Lessee or any contractor employed by Lessee
with respect to the Premises, and (3.) give notice to Lessor in writing
five (5) days prior to employing any laborer or contractor to perform
services related, or receiving materials for use upon the Premises, and
(4.) shall prepare and provide Lessor with a notice of
non-responsibility, which Lessor shall sign and return to Lessee for
posting, on behalf of Lessor, a notice of non-responsibility in
accordance with the statutory requirements of the California Civil
Code, Section 3904, or any amendment thereof. In the event an
improvement bond with a public agency in connection with the above is
required to be posted, Lessee agrees to include Lessor as an additional
obligee.
18. COMPLIANCE WITH LAWS. Subject to Section 12, Lessee shall, at its own
cost, comply with and observe all requirements of all municipal,
county, state, and federal authority now in force, or which may
hereafter be in force, pertaining to the use and occupancy of the
Premises.
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19. SUBORDINATION. Lessee agrees that this Lease shall, at the option of
Lessor, be subjected and subordinated to any mortgage, deed of trust,
or other instrument of security, which has been or shall be placed on
the land and building, or land or building of which the Premises form a
part, and this subordination is hereby made effective without any
further act of Lessee or Lessor. The Lessee shall, at any time
hereinafter, on demand, execute any instruments, releases, or other
documents that may be required by any mortgagee, mortgagor, trustor, or
beneficiary under any deed of trust, for the purpose of subjecting or
subordinating this Lease to the lien of any such mortgage, deed of
trust, or other instrument of security. Failure of Lessee to execute
and deliver any such documents or instruments shall be a breach of
Lessee's obligations under this Lease.
Notwithstanding anything to the contrary in this Lease, prior to
the Commencement Date, Lessor shall obtain from The Union Labor Life
Insurance Company a written agreement in substantially the form
attached hereto as Exhibit F. Further, as a condition to the
subordination of Lessee's leasehold interest to a future around lease
or instrument of security. Lessor shall obtain from any such ground
lessors or lenders a written recognition agreement in form
substantially similar to such form.
20. ABANDONMENT. Lessee shall not vacate or abandon the Premises at any
time during the term; and if Lessee shall abandon, vacate, or surrender
said Premises, or be dispossessed by process of law, or otherwise, any
personal property belonging to Lessee and left on the Premises shall be
deemed to be abandoned, at the option of Lessor, except such property
as may be mortgaged to Lessor, provided, however, that Lessee shall not
be deemed to have abandoned or vacated the Premises so long as Lessee
continues to pay all rents as and when due, and otherwise performs
pursuant to the terms and conditions of this Lease. Notwithstanding
anything to the contrary in this Lease, any property of Lessee
remaining in the Premises after the expiration or earlier termination
of this Lease shall be treated in accordance with California Civil Code
Section 1980, et seq.
21. ASSIGNMENT AND SUBLETTING. Lessee's interest in this Lease is not
assignable, by operation of law or otherwise, nor shall Lessee have the
right to sublet the Premises, transfer any interest of Lessee's
therein, or permit any use of the Premises by another party, without
the prior written consent of Lessor to such assignment, subletting, or
transfer of use.
If Lessee is a partnership, a withdrawal or change, voluntary,
involuntary, or by operation of law, of any partner(s) owning fifty
percent (50%) or more of the partnership, of the dissolution of the
partnership, shall be deemed as a voluntary assignment.
If Lessee consists of more than one person, a purported
assignment, voluntary, involuntary, or by operation of law, from one
person to the other or from a majority of persons to the others, shall
be deemed a voluntary assignment.
Notwithstanding anything to the contrary in this Lease, Lessee,
without Lessor's prior written consent and without being subject to any
of the provisions of this section, may sublet the Premises or assign
this Lease to: (i) a subsidiary, affiliate,
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franchise, division or corporation controlled by or under common
control with Lessee; (ii) a successor corporation related to Lessee by
merger, consolidation, non-bankruptcy reorganization or government
action or (iii) a purchaser of substantially all of Lessee's assets. A
sale of Lessee's capital stock shall not be deemed an assignment,
subletting or other transfer of this Lease or the Premises requiring
Lessor's consent.
In the event of any subletting or transfer which is consented to,
or not consented to, by Lessor, a subtenant or transferee agrees to pay
monies or other consideration, whether by increased rent or otherwise,
in excess of or in addition to those provided for herein, then all of
such excess or additional monies or other consideration (after first
deducting therefrom from the costs to Lessee to effectuate the
assignment or sublease, including, the unamortized costs of any
alterations installed in the Premises at Lessee's expense, leasing
commissions and remodeling costs) shall be paid solely to Lessor, and
this shall be one of the conditions to obtaining Lessor's consent.
Lessee immediately and irrevocably assigns to Lessor, as security
for Lessee's obligations under this Lease, all rent from any subletting
of all or a part of the Premises as permitted by this Lease, and
Lessor, as assignee, may collect such rent and apply it toward Lessee's
obligations under this Lease; except that, until the occurrence of an
act of default by the Lessee, Lessee shall have the right to collect
such rent.
A consent to one assignment, subletting, occupation, or use by
another party shall not be deemed to be a consent to any subsequent
assignment, subletting, occupation, or use by another party. Any
assignment or subletting without such consent shall be void and shall,
at the option of the Lessor, terminate this Lease. Lessor's waiver or
consent to any assignment or subletting hereunder shall not relieve
Lessee from any obligation under this Lease unless the consent shall so
provide. If Losses requests Lessor to consent to a proposed assignment
or subletting, Lessee shall pay to Lessor, whether or not consent is
ultimately given, Lessor's reasonable attorneys' fees incurred in
conjunction with each such request.
22. PARKING CHARGES. Lessee agrees to pay upon demand, based on its percent
of occupancy of the entire Premises, its pro-rata share of any parking
charges, surcharges, or any other cost hereafter levied or assessed by
local, state, or federal governmental agencies in connection with the
use of the parking facilities serving the Premises, including, without
limitation, parking surcharge imposed by or under the authority of the
Federal Environmental Protection Agency.
23. INSOLVENCY OR BANKRUPTCY. Either (1.) the appointment of a receiver to
take possession of all or substantially all of the assets of Lessee, or
(2.) a general assignment by Lessee for the benefit of creditors, or
(3.) any action taken or suffered by Lessee under any insolvency or
bankruptcy act, if any such receiver, assignment or action is not
released or discharges within sixty (60) days, shall constitute a
breach of this Lease by Lessee. Upon the happening of any such event,
this Lease shall terminate ten (10) days after written notice of
termination from Lessor to Lessee. This section is to be applied
consistent with the applicable state and federal law in effect at the
time such event occurs.
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24. LESSOR LOAN OR SALE. Lessee agrees promptly following request by Lessor
to (1.) execute and deliver to Lessor any documents, including estoppel
certificates presented to Lessee by Lessor, (a.) certifying that this
Lease is unmodified and in full force and effect, or, if modified,
stating the nature of such modification and certifying that this Lease,
as so modified, is in full force and effect and the date to which the
rent and other charges are paid in advance, if any, and (b.)
acknowledging that there are not, to Lessee's knowledge, any uncured
defaults on the part of Lessor hereunder, or stating the nature of any
defaults, and (c.) evidencing the status of the Lease as may be
required either by a lender making a loan to Lessor, to be secured by
deed of trust or mortgage covering the Premises, or a purchaser of the
Premises from Lessor, and (2.) to deliver to Lessor the current
publicly available financial statements of Lessee with an opinion of a
certified public accountant, including a balance sheet and profit and
loss statement, for the current fiscal year and the two immediately
prior fiscal years, all prepared in accordance with Generally Accepted
Accounting Principles consistently applied. Lessee's failure to deliver
an estoppel certificate within five (5) business days following such
request shall constitute a default under this Lease and shall be
conclusive upon Lessee that this Lease is in full force and effect and
has not been modified except as may be represented by Lessor. Failure
of Lessee to execute and deliver any such estoppel certificates within
the five (5) business days shall be a breach of Lessee's obligations
under this Lease.
The Provisions of this section shall be reciprocal and, within
ten (10) days after request by Lessee, Lessor shall execute a similar
estoppel in favor of Lessee.
25. SURRENDER OF LEASE. The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, shall not work a merger nor
relieve Lessee of any of Lessee's obligations under this Lease, and
shall, at the option of Lessor, terminate all or any existing Subleases
or Subtenancies, or may, at the option of Lessor, operate as an
assignment to him of any or all such Subleases or Subtenancies.
26. ATTORNEYS' FEES. If, for any reason, any suit be initiated to enforce
any provision of this Lease, the prevailing party shall be entitled to
legal costs, expert witness expenses, and reasonable attorneys' fees,
as fixed by the court.
27. NOTICES. All notices to be given to Lessee may be given in writing,
personally, or by depositing the same in the United States mail,
certified or registered, postage prepaid, and addressed to Lessee at
the said Premises, whether or not Lessee has departed from, abandoned,
or vacated the Premises and the address set forth below, or at such
other address as Lessee may have theretofore specified by notice
delivered in accordance herewith. Any notice or document required or
permitted by this Lease to be given Lessor shall be addressed to Lessor
at the address set forth below, or at such other address as it may have
theretofore specified by notice delivered in accordance herewith:
LESSOR: Los Gatos Business Park
000 Xxxxx Xxxx, Xxxxx 00
Xxxx Xxxx, Xxxxxxxxxx 00000
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LESSEE: Rhetorex, Inc.
000 Xxxxxxxx Xxx
Xxx Xxxxx, XX 00000
AND TO: Octel Communications Corporation
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attn: Director of Real Estate and Facilities
Notices given hereunder shall be deemed to have been given (i) on
the third business day after mailing if such notice or report was
deposited in the United States mail, certified or registered, postage
Prepaid and (ii) when delivered if given by personal delivery.
28. TRANSFER OF SECURITY. If any security be given by Lessee to secure the
faithful performance of all or any of the covenants of this Lease on
the part of Lessee, Lessor may transfer and/or deliver the security, as
such, to the purchaser of the reversion, in the event that the
reversion be sold, and thereupon Lessor shall be discharged from any
further liability in reference thereto, upon the written assumption by
such transferee of lessors obligations under this Lease.
29. WAIVER. The waiver by Lessor or Lessee of any breach of any term,
covenant, or condition, herein contained shall not be deemed to be a
waiver of such term, covenant, or condition, or any subsequent breach
of the same or any other term, covenant, or condition herein contained.
The subsequent acceptance of rent hereunder by lessor shall not be
deemed to be a waiver of any preceding breach by Lessee of any term,
covenant, or condition of this Lease, other than the failure of Lessee
to pay the particular rental so accepted, regardless of Lessor's
knowledge of such preceding breach at the time of acceptance of such
rent.
30. HOLDING OVER. Any holding over after the expiration of the term or any
extension thereof, with the consent of lessor, shall be construed to be
a tenancy from month-to-month, at a rental of one and one-quarter (1
1/4) times the previous month's rental rate per month, and shall
otherwise be on the terms and conditions herein specified, so far as
applicable.
31. COVENANTS, CONDITIONS, AND RESTRICTIONS. Attached hereto, marked
Exhibit "C" and by this reference incorporated as if set out in full,
are Covenants, Conditions, and Restrictions pertaining to Los Gatos
Business Park. As a condition to this Lease, Lessee agrees to abide by
all of said Covenants, Conditions, and Restrictions. Moreover, such
reasonable rules and regulations as may be hereafter adopted by Lessor
for the safety, care, and cleanliness of the Premises and the
preservation of good order thereon, are hereby expressly made a part
hereof, and Lessee agrees to obey all such rules and regulations, so
long as any new rules and regulations do not increase Lessee's
obligations or decrease Lessee's rights under this Lease or
unreasonably interfere with Lessee's use of the Premises.
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32. LIMITATION ON LESSORS LIABILITY. If Lessor is in default of this Lease,
and, as a consequence, Lessee recovers a money judgment against Lessor,
the judgment shall be satisfied only out of the proceeds of sale
received on execution of the judgment and levy against the right,
title, and interest of Lessor in the Premises, or in the building,
other improvements, and land of which the Premises are part, and out of
rent or other income from such real property receivable by Lessor or
out of the consideration, received by Lessor from the sale or other
disposition of all or any part of Lessors right, title, and interest in
the Premises or in the building, other improvements, and land of which
the Premises are part. Neither Lessor nor any of the partners
comprising the partnership designated as Lessor shall be personally
liable for any deficiency. The foregoing limitation shall not apply,
however, to any losses, costs, claim or damages arising from or
relating to the failure of a successor or assignee of Lessor to assume
liability for the defaults or obligations of Lessor as it pertains to
the security deposit and any prepaid rent which accrued prior to the
date of an assignment or other transfer of Lessor's interest in the
Premises.
33. QUIET POSSESSION. Lessor covenants that Lessee, on paying the rent and
performing the covenants aforesaid, shall and may peacefully and
quietly have, hold and enjoy the demised Premises for the term
aforesaid.
34. MISCELLANEOUS.
A. Time is of the essence of this Lease and of each and all of its
provisions.
B. The term "building" shall mean the building in which the Premises
are situated.
C. Lessee shall have the exclusive right to make reasonable use of
any driveways, sidewalks, and parking areas located on the parcel
of land on which the building is situated.
D. Lessee shall have the exclusive right to use all of the parking
spaces on the land on which the Premises are located, which shall
in no event be less than 108 parking spaces. Lessee's such
reasonable use of parking areas shall not exceed that percent of
the total parking areas which is equal to the ratio which floor
space of the Premises bears to floor space of the building.
E. The term "assign" shall include the term "transfer."
F. The invalidity or unenforceability of any provision of this Lease
shall not affect the validity or enforceability of the remainder
of this Lease.
G. All parties hereto have equally participated in the preparation
of this Lease.
H. The headings and titles to the Paragraphs of this Lease are not a
part of this Lease and shall have no effect upon the construction
or interpretation of any part thereof
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I. Lessor has made no representation(s) whatsoever to Lessee
(express or implied) except as may be expressly stated in writing
in this Lease instrument.
J. This instrument contains all of the agreements and conditions
made between the parties hereto, and may not be modified orally
or in any other manner than by agreement in writing, signed by
all of the parties hereto or their respective successors in
interest.
K. It is understood and agreed that the remedies herein given to
Lessor shall be cumulative, and the exercise of any one remedy by
Lessor shall not be to the exclusion of any other remedy.
L. The covenants and conditions herein contained shall, subject to
the provisions as to assignment, apply to and bind the heirs,
successors, executors, and administrators, and assigns of all the
parties hereto; and all of the parties hereto shall jointly and
severally be liable hereunder.
M. This Lease has been negotiated by the parties hereto and the
language hereof shall not be construed for or against either
party.
N. All exhibits to which reference is made are deemed incorporated
into this Lease, whether covenants or conditions, on the part of
Lessee shall be deemed to be both covenants and conditions.
O. Whenever this Lease requires an approval, consent, designation,
determination or judgment by either Lessor or Lessee, such
approval, consent, designation, determination or judgment shall
not be unreasonably withheld or delayed, and in exercising any
right or remedy hereunder, each party shall at all times act
reasonably and in good faith.
P. Any expenditure by a party permitted or required under this
Lease, for which such party is entitled to demand and does demand
reimbursement from the other party, shall be limited to the fair
market value of the goods and services involved, shall be
reasonably incurred and shall be substantiated by documentary
evidence available for inspection and review by the other party
or its representative during normal business hours.
Q. If either Lessor or Lessee shall bring any action or legal
proceeding to enforce, protect or establish any term or covenant
of this Lease, the prevailing party shall be entitled to recover
its reasonable attorneys' fees, court costs and experts' fees as
may be fixed by the court. "Prevailing party" as used herein
includes a party who dismisses an action for recovery hereunder
in exchange for sums allegedly due, performance of covenants
allegedly breached or consideration substantially equal to the
relief sought in the action.
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R. Lessee shall be entitled to install, at Lessee's sole cost and
expense, a monument sign in front of the Premises so long as said
signage complies with the Town of Los Gatos requirements and Los
Gatos Business Park standards.
S. Notwithstanding anything to the contrary in this Lease, Lessor
and Lessor's agents, except in the case of emergency, shall
provide Lessee with twelve (12) hours notice prior to entry of
the Premises. Any entry by Lessor and Lessor's agents shall not
impair Lessee's operations more than reasonably necessary, and
Lessee shall have the right to have an employee accompany Lessor
at all times that Lessor is Present on the Premises.
35. OPTION TO EXPAND. Lessor hereby represents and warrants that (i) it is
the landlord under the lease for the premises consisting of
approximately 14,700 square feet of space ("Expansion Space"), located
in a building known as 000 Xxxxxxxx Xxx, Xxx Xxxxx, Xxxxxxxxxx, and
more particularly described on Exhibit A hereto, (ii) the expiration
date of the lease of Expansion Space is August 31, 1997, and (iii) the
Expansion Space Lease does not contain any extension or renewal right
and Lessor agrees not to extend or renew said lease provided Lessee has
given notice of its intent to exercise its Option to Expand.
Lessor hereby grants to Lessee the option to expand the Premises
under this Lease to include Expansion Space, which option may be
exercised in Lessee's sole discretion. Lessee may exercise said option
to expand the Premises as follows:
(a) Provided Lessee does not receive a notice as set forth in
Section 36(b) below, Lessee may exercise its option to expand the
Premises by giving Lessor written notice of its' intention to exercise
the option no later than December 31, 1996. If Lessee delivers such a
notice, Lessee agrees to provide Lessor with a final space plan for the
Expansion Space (to be attached as Exhibit D) no later than February 1,
1997.
If Lessee has exercised its option to lease Expansion Space under
this Section 35(a) the Premises under this Lease shall expand to
include Expansion Space on the date (the "Expansion Space Effective
Date") which is the later of October 15, 1997, and the date by which
all of the following have occurred: (1) Lessor has substantially
completed the improvements set forth on Exhibit E in accordance with
the terms of this Lease (the "Improvements"); (ii) there remains no
incomplete or defective item of improvements that would adversely
affect Lessee's intended use of the Expansion Space (iii) Lessor has
delivered legal possession of the Expansion Space to Lessee; and (iv)
Lessor has obtained all approvals and permit from the appropriate
governmental authorities required to be obtained by Lessor for the
legal occupancy of the Expansion Space; and (v) all representations and
warranties of Lessor under Section 6 of this Lease Shall be true,
complete and correct with respect to Expansion Space; and (vi) the
Expansion Space has been vacated by the previous tenant.
Notwithstanding the foregoing, provided Lessee has given notice of its
intent to exercise its option under this Section 35(a), if all of the
foregoing have not occurred for any reason whatsoever on or before May
1, 1998, then, in addition to Lessee's other rights and remedies,
Lessee may terminate the Expansion Option with respect to the Expansion
Space by written notice to Lessor, or, at Lessee's election, the date
Lessee
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is otherwise obligated to commence payment of rent for the Expansion
Space shall be delayed by one day for each day that the Expansion Space
Effective Date is delayed beyond such date.
(b) If the current tenant in Expansion Space is unable to
fulfill its obligations of its Lease through the expiration date
(August 31, 1997) and is in default (after applicable notice and cure
periods) under its Lease, Lessor shall notify Lessee in writing of its
intent to evict the tenant. Lessee shall have five (5) business days to
notify Lessor of its intent to exercise its option to lease Expansion
Space. No response shall be deemed a rejection of the offer of
Expansion Space. If Lessee has exercised its option to lease Expansion
Space as set forth in this subsection (b), Lessee shall provide Lessor
with a final space plan (to be attached as Exhibit E) within twenty
(20) business days following Lessors notice. If Lessee has exercised
its option to lease Expansion Space as set forth in this subsection (b)
the Premises under this Lease shall expand to include Expansion Space
on the date (the "Expansion Space Effective Date") which is the later
of ninety (90) days after Lessor's notice to Lessee of its intent to
evict tenant, and the date by which all of the following have occurred:
(i) Lessor has substantially completed the improvements set forth on
Exhibit B in accordance with the terms of this Lease (the
"improvements"); (ii) there remains no incomplete or defective item of
improvements that would adversely affect Lessee's intended use of the
Expansion Space; (iii) Lessor has delivered legal possession of the
Expansion Space to Lessee; and (iv) Lessor has obtained all approvals
and permit from the appropriate governmental authorities required to be
obtained by Lessor for the legal occupancy of the Expansion Space; and
(v) all representations and warranties of Lessor under Section 6 of
this Lease shall be true, complete and correct with respect to
Expansion Space, and (vi) the Expansions Space has been vacated by the
previous tenant. Notwithstanding the foregoing, provided Lessee has
given notice of its intent to exercise its option under this Section
35(b), if all of the foregoing have not occurred for any reason
whatsoever within nine (9) months of the date in which Lessee delivered
its notice of intent, to exercise its option under this Section 35(b),
then, in addition to Lessee's other rights and remedies, Lessee may
terminate the Expansion Option with respect to the Expansion Space by
written notice to Lessor, or, at Lessee's election, the date Lessee is
otherwise obligated to commence payment of rent for the Expansion Space
shall be delayed by one day for each day that the Expansion Space
Effective Date is delayed beyond such date. Provided Lessee has given
Lessor notice of its intent to exercise its option under this Section
35(b), Lessor shall use commercially reasonable efforts to evict and
cause the current tenant to vacate the Expansion Space as quickly as
reasonably possible.
(c) If Lessee exercises its option to lease Expansion Space,
Lessor shall provide Lessee with an allowance of $220,500 for mutually
agreeable tenant improvements to be installed by Lessors contractor in
accordance with the work letter attached hereto as Exhibit E.
(d) Effective as of the Expansion Space Effective Date, this
Lease shall be modified as follows:
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(i) The monthly rent payable under this Lease shall be
increased to include Expansion Space at the same amount per rentable
square foot as the amount per rentable square foot of the existing
Premises. Lessor and Lessee acknowledge that the rentable square
footage of the existing Premises is as follows:
Months 01-12 following the Commencement Date of this Lease: $1.05 p.s.f.
Months 13-24 following the Commencement Date of this Lease: $1.08 p.s.f.
Months 25-36 following the Commencement Date of this Lease: $1.11 p.s.f.
Months 37-48 following the Commencement Date of this Lease: $1.14 p.s.f.
Months 49-60 following the Commencement Date of this Lease: $1.17 p.s.f.
(ii) The term of this Lease shall be extended so that the
expiration date of this Lease is the seventh (7th) anniversary of the
Expansion Space Effective Date. Monthly rent during any extended term
of this Lease shall be payable in accordance with the following
schedule:
Months 61-72 following the Commencement Date of this Lease: $1.20 p.s.f.
Months 73-84 following the Commencement Date of this Lease: $1.23 p.s.f.
Months 85-96 following the Commencement Date of this Lease: $1.26 p.s.f.
Months 97-108 following the Commencement Date of this Lease: $1.29 p.s.f.
Months 109-120 following the Commencement Date of this Lease: $1.32 p.s.f.
The foregoing table shall on no event be deemed to extend the
term of this Lease beyond the date which is the seventh (7th)
anniversary of the Expansion Space Effective Date.
(iii) Lessee shall have the right-to use its pro-rata share
of the building's 76 parking spaces.
(iv) Except as expressly provided in Sections 35 and 36
hereof, all of the terms a conditions of this Lease shall remain in
full force and effect with respect to the addition of the Expansion
Space, and this Lease shall not be modified as a result of the addition
of the Expansion Space.
36. OPTION TO EXTEND TERM AFTER LESSEE'S EXERCISE OF THE OPTION FOR THE
EXPANSION SPACE.
A. Notwithstanding anything to the contrary in this Lease, provided
that the Premises have expanded to include the Expansion Space as
set forth in Section 35 hereof, at the end of the term of the
Lease (as extended as provided in Section 35(d)(ii) hereof),
Lessee shall have the option to extend the term on all the
provisions contained in this Lease for one (1) five (5) year
period ("extended term(s)") at an adjusted rental calculated as
provided in Subparagraph B below on the condition that:
1. Lessee has given to Lessor written notice of exercise of
that option ("option notice") at least six (6) months
before expiration of the initial term or extended term(s),
as the case may be.
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2. Lessee is not in default of the Lease on the date of giving
the option notice, and Lessee is not in default on the date
that the extended term is to commence.
B. RENT FOR OPTION PERIOD: The rent during the extended term shall
be the then current fair market monthly rent ("Fair Market Rent")
for the Premises as of the commencement date of the applicable
extended term, as determined by the agreement of the parties or,
if the parties cannot agree within sixty (60) days prior to the
commencement of such extended term, then by an appraisal. All
other terms and conditions contained in the Lease and this
Addendum, as the same may be amended from time to time by the
parties in accordance with the provisions of the Lease, shall
remain in full force and effect and shall apply during the Option
term.
If it becomes necessary to determine the fair market rental
value for the Premises by appraisal, real estate appraiser(s),
all of whom shall be members of the American institute of Real
Estate Appraisers and have at least five (5) years experience
appraising office space located in the vicinity of the Premises
and none of whom shall have worked for either Lessor or Lessee in
the five (5) year period preceding the commencement date of the
applicable extended term, shall be appointed and shall act in
accordance with the following procedures:
1. If the parties are unable to agree on the Fair Market
within the allowed time, either party may demand an
appraisal by giving written notice to the other party,
which demand to be effective must state the name, address
and qualifications of an appraiser selected by the party
demanding an appraisal (the "Notifying Party"). Within ten
(10) days following the Notifying Party's appraisal demand,
the other party (the (the "Non-Notifying Party") shall
either approve the appraiser selected by the notifying
party or select a second property qualified appraiser by
giving written notice of the name, address and
qualification of said appraiser to the Notifying Party. If
the Non-Notifying Party falls to select an appraiser within
the ten (10) day period, the appraiser selected by the
Notifying Party shall be deemed selected by both parties
and no other appraiser shall be selected. If two appraisers
are selected, they shall select a third appropriately
qualified appraiser. If the two appraisers fall to select a
third qualified appraiser, the third appraiser shall be
appointed by the then presiding judge of the county where
the Premises are located upon application by either party.
2. It only one appraiser is selected, that appraiser
shall notify the parties in simple letter form of its
determination of the Fair Market Rent for the Premises
within fifteen (15) days following his selection, which
appraisal shall be conclusively determinative and binding
on the parties as the appraised Fair Market Rent.
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3. If multiple appraisers are selected, the appraisers
shall meet no later than ten (10) days following the
selection of the last appraiser. At such meeting the
appraisers shall attempt to determine the Fair Market Rent
for the Premises as of the commencement date of the
extended term by the agreement of at least two (2) of the
appraisers.
4. If two (2) or more of the appraisers agree on the Fair
Market Rent for the Premises at the initial meeting, such
agreement shall be determinative and binding upon the
parties hereto and the agreeing appraisers shall, in simple
letter form executed by the agreeing appraisers, forthwith
notifying both Lessor and Lessee of the amount set by such
agreement. If multiple appraisers are selected and two (2)
appraisers are unable to agree on the Fair Market Rent for
the Premises, all appraisers shall submit to Lessor and
Lessee an independent appraisal of the Fair Market Rent for
the Premises in simple letter form within twenty (20) days
following appointment of the final appraiser. The parties
shall then determine the Fair Market Rent for the Premises
by averaging the appraisals; provided that any high or low
appraisal, differing from the middle appraisal by more than
ten percent (10%) of the middle appraisal, shall be
disregarded in calculating the average.
5. The appraisers' determination of Fair Market Rent
shall be based on rental of space of the same age,
construction, size and location as the Premises with the
improvements installed therein at Lessor's expense and
shall take into account Lessee's obligations to pay
additional rent under this Lease. In determining Fair
Market Rent, the appraisers shall not consider any
alterations installed in the Premises at Lessee's expense.
6. If only one appraiser is selected, then each party
shall pay one-half of the fees and expenses of that
appraiser. If three appraisers are selected, each party
shall bear the fees and expenses of the appraiser it
selects and one-half of the fees and expenses of the third
appraiser.
37. RIGHT OF FIRST REFUSAL.
A. Lessor hereby represents and warrants to Lessee that (i) it is the
landlord under the lease for the premises consisting of approximately
10,584 square feet of space (the "Refusal Space"), located in a
building known as 000-X Xxxxxxxx Xxx, Xxx Xxxxx, Xxxxxxxxxx, and more
particularly described on Exhibit A hereto, (ii) the expiration date of
the lease of the Refusal Space (the "Refusal Space Lease") is January
24, 1998, and (iii) the Refusal Space Lease does not contain any
extension or renewal rights.
B. If, at any time during the term, as extended, the Refusal Space
shall become vacant or Lessor shall solicit or receive a bona fide
offer in writing ("Offer") from an unrelated third party to lease all
or any portion of the Refusal Space, Lessee shall have
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a right of first refusal ("Right of First Refusal") to lease the
Refusal Space upon the same terms and conditions as set forth in the
Offer, except that the term shall be deemed to be coterminous with the
term of the Lease, provided Lessee has exercised its option to lease
the Expansion Space. Lessor, promptly following Lessor's receipt of the
Offer, shall deliver written notice to Lessee specifying the terms and
conditions contained in the Offer. Lessee shall exercise its Right of
First Refusal by providing Lessor with written notice of its exercise
within five (5) business days after the date of the receipt of Lessor's
notice regarding the Offer. If Lessee exercises its Right of First
Refusal within the five (5) business day period, Lessor and Lessee
promptly shall execute an amendment to the Lease relating to the
Refusal Space, which includes the terms and conditions set forth in the
Offer, except as set forth above. If Lessee fails to provide Lessor
with its written notice of exercise within the five (5) business day
period, then Lessee shall be deemed to have elected not to exercise its
Right of First Refusal with respect to the particular Offer at issue.
38. RIGHT OF FIRST OFFER. If Lessor determines to lease any space in the
project owned by Lessor and known as Los Gatos Business Park (the
"Offer Space"), then Lessor shall notify Lessee of the terms on which
Lessor is willing to lease the Offer Space. If Lessee, within five (5)
business days after receipt of Lessor's written notice indicates in
writing its agreement to lease the Offer Space on the terms stated in
Lessor's notice, Lessor and Lessee promptly shall execute an amendment
to the Lease relating to the Offer Space, which includes the terms and
conditions set forth in Lessor's notice, except that the term shall be
deemed to be coterminous with the term of the Lease. If Lessee does not
indicate in writing its agreement to lease the Offer Space on the terms
contained in Lessor's notice within said five (5) business day period,
then Lessor thereafter shall have the right to lease the Offer Space to
a third party on the same terms stated in Lessor's notice. Lessee's
Right of First Offer as set forth herein shall be subject to existing
expansion and renewal rights, rights of first refusal and rights of
first offer of other tenants in the project, existing as of this date.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease on the
date first above-written.
LESSOR: LESSEE:
Los Gatos Business Park Rhetorex, Inc.
By:________________________________ By:___________________________________
Date:______________________________ Date:_________________________________
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EXHIBIT A
[Map of Xxxxxxxx Way]
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EXHIBIT B
The Final Plans, approved by Lessee and Lessor, shall be attached to
the Lease as Exhibit B upon completion of the drawings.
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EXHIBIT E
EXPANSION SPACE WORK LETTER
1. Lessor shall construct the Improvements to the Expansion Space
(the "Improvements") in accordance with the preliminary plans prepared by Lessee
and approved by Lessor (the "Preliminary Plans") in accordance with the terms of
this work letter. The parties shall confer and negotiate in good faith to reach
agreement on the Preliminary Plans.
2. Lessor shall cause three (3) subcontractors for each trade to bid
for construction of the Improvements. If Lessee so desires, Lessee may also
select a qualified subcontractor to bid the work. All bids will be opened
together with Lessor selecting the subcontractors to construct the Improvements
(the "General Contractor"), subject to reasonable approval of Lessee.
3. Lessor shall cause to be prepared, as quickly as possible, final
plans, specifications and working drawings of the Improvements ("Final Plans"),
as well as an estimate of the total cost for the Improvements ("Cost Estimate")
all of which conform to or represent logical evolutions of or developments from
the Preliminary Plans. The Final Plans and Cost Estimate shall be delivered to
Lessee Immediately upon completion. Within five (5) business days after receipt
thereof, Lessee shall (a) approve the Final Plans and Cost Estimate, or (b)
deliver to Lessor the specific written changes to such plans that are necessary,
in Lessee's opinion, to conform such plans to the Preliminary Plans or to reduce
costs. If Lessee desires changes, Lessor shall not unreasonably withhold its
approval of such changes and the parties shall confer and negotiate in good
faith to reach agreement on modifications to the Final Plans, and the Cost
Estimate as a consequence of such change. As soon as approved by Lessor and
Lessee, Lessor shall submit the Final Plans to all appropriate governmental
agencies and thereafter Lessor shall use its best efforts to obtain required
governmental approvals as soon as practical.
4. After the Final Plans have been approved by Lessor and Lessee as
provided above, neither party shall have the right to require extra work or
change orders with respect to the construction of the Improvements without the
prior written consent of the other, which consent shall not be unreasonably
withhold or delayed. All change orders shall specify any change in the Cost
Estimate as a consequence of the change order.
5. Lessor shall thereafter commence construction of the Improvements
and shall diligently prosecute such construction to completion.
6. When the Improvements are complete, Lessor shall deliver
possession of the Expansion Space to Lessee.
7. Notwithstanding anything to the contrary in the Lease, effective
upon delivery of the Expansion Space to Lessee, Lessor does hereby warrant that
(a) the construction of the
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Improvements was performed In accordance with all rules, regulations, codes,
statutes, ordinances and laws of all governmental and quasi-governmental
authorities, in accordance with the Final Plans, and in a good and workmanlike
manner, (b) all material and equipment installed therein conformed to the Final
Plans and was of good quality, (c) the electrical, plumbing, and mechanical
systems servicing are in working order and in good condition, and (d) the roof
is in good condition and water tight.
8. The cost of the Improvements shall not include (and Lessee shall
have no responsibility for and the Allowance shall not be used for) the
following: a) costs Incurred to remove Hazardous Materials from the Expansion
space prior to Lessee taking occupancy of the Expansion Space or the surrounding
area; (b) costs Incurred as a consequence of delay (unless the delay is caused
by Lessee), construction defects or default by a contractor, (c) costs
recoverable by Lessor upon account of warranties and Insurance; (d) costs
Incurred as a result of alterations to the Expansion Space by the existing
tenant therein after the date of execution of the Lease; restoration costs in
excess of Insurance proceeds as a consequence of casualties.
9. In such event that the cost of the Improvements exceeds the
Allowance, Lessee shall pay to Lessor the amount of any such overage prior to
Lessors delivery of the Expansion Space to Lessee.
10. So long as such occupancy does not Interfere with Lessors
construction of the Improvements, Lessee shall have the right to occupy the
Expansion Space prior to the completion of the Improvements for the purpose of
installing its equipment, data, telecommunications system and trade fixtures.
Such occupancy shall be subject to all of the terms of the Lease except the
obligation to pay rent.
11. Within thirty (30) days after the delivery of the Expansion Space,
Lessee shall have the right to submit a written "punch list" to Lessor, setting
forth any defective term of construction, and Lessor shall promptly cause such
items to be corrected at Lessor's sole cost and expense.
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EXHIBIT F
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT made as of the
____ day of November, 1994, by and between THE UNION LABOR LIFE INSURANCE
COMPANY, having an address at 000 Xxxxxxxxxxxxx Xxxxxx, Xxxxxxxxxx X.X. 00000
("Lender") and ______________________ having an address at _______________
("Lessee")
WITNESSETH:
WHEREAS, Los Gatos Business Park, a California limited partnership
("Lessor") is the owner of the fee estate in that certain property located in
Los Gatos, California more particularly know as 000-000 Xxxxxxxx Xxx (the
"Property"); and
WHEREAS, Lessor and Lessee have entered into a lease dated
_____________ (the "Lease"), covering a portion of the Property (the "Leased
Premises"); and
WHEREAS, Lessor proposes to borrow certain sums from Lender, such loan
to be evidenced by a promissory note and secured by, INTER ALIA, a deed of trust
encumbering the Leased Premises (the "Deed of Trust"); and
WHEREAS, to induce Lender to make the loan to Lessor, Lessee has agreed
to subordinate the Lease to the Deed of Trust, and Lender has agreed that the
Lease shall remain in force and effect on the terms, and conditions hereinafter
set forth, notwithstanding any foreclosure or other proceedings for enforcement
of the Deed of Trust.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. The Lease and any extension, renewal, replacement or modification
thereof and all of the right, title and interest of Lessee in and to the Leased
Premises and the rights of Lessee under the Lease now are, and shall at all
times continue to be subject and subordinate to the lien and security interest
of the Deed of Trust and to each renewal, extension, modification or replacement
thereof, with the same force and effect as if the Deed of Trust had been
executed, delivered and recorded prior to the execution and delivery of the
Lease.
2. So long as Lessee is not in default in the payment of rents or in
this performance of any of the other terms, covenants or conditions of the Lease
requiring performance on the part of Lessee, (a) Lender will not join Lessee as
a party defendant in any action or proceeding for the purpose of terminating any
ownership, possession, interest or estate of Lessor because of any default under
the Deed of Trust. Unless Lessee is deemed a necessary party by the court, in
which event Lessee may be so named but such naming shall not otherwise be in
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derogation of the rights of Lessee set forth in this Agreement, and (b) the
Lease and the rights of Lessee thereunder shall not be divested by a sale on the
Deed of Trust or on the obligation secured by the Deed of Trust or the exercise
of any other right or remedy available to Lender against Lessor.
3. If the Property or any portion thereof which includes the Leased
Premises shall be transferred to and owned by Lender or any assignee of Lender,
or any purchaser at judicial sale or any transferee under an action in lieu
thereof, by reason of foreclosure or other remedial proceedings brought by
Lender or any assignee of Lender, or by any transferee or purchaser, or by any
other similar manner, or if the interest of Lessor is terminated or assigned by
any action of the Lender and Lessee is not in default in the Payment of rent or
in the performance of any of the other terms, covenants or conditions of the
Lease requiring performance on the part of Lessee, Lessee's rights shall not be
terminated thereby; rather, Lessee shall be bound by Lender or any such
assignee, purchaser or transferee (hereinafter referred to collectively as
"Successor Landlord") under all or the terms, covenants and conditions of the
Lease for the balance of the term thereof remaining, with the same force and
effect as if the Successor Landlord were the lessor under the Lease with the
Lease remaining in full force and effect, provided, however, that the Successor
Landlord shall not be:
(a) liable for any act or omission of any prior landlord, or for
the return of any security deposit unless actually received by the Successor
Landlord; or
(b) subject to any offsets or defenses which Lessee may have
against any prior landlord; or
(c) bound by any payment of rent which Lessee may have paid for
more than the then current month to any prior landlord, or bound by any
amendment, modification, extension or supplement of the Lease, made without the
written consent of Lender; or
(d) obligated to repair, replace, rebuild or restore the Leased
Premises, or any part thereof, in the event, of total or substantially total
damage or destruction beyond such repair, replacement, rebuilding or restoration
of the Leased Premises as can reasonable be accomplished from the net proceeds
of insurance actually received by, or made available to, Successor Landlord for
such purposes; or
(e) obligated to repair, replace, rebuild or restore the Leased
Premises, or any part thereof, in this event of partial condemnation beyond such
repair, replacement, rebuilding or restoration of the Leased Premises as can
reasonably be accomplished from the net proceeds of any award actually received
by, or made available to, Successor Landlord, as consequential damages allocable
to the part of the Leased Premises not taken; or
(f) obligated to make any capital improvements to the Leased
Premises, or to construct, erect or complete any construction or renovation of
all or any portion of the
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improvements at the Leased Premises, which Lessor may have agreed to make but
has not commenced or completed; or
(g) personally liable under the Lease, and the liability of the
Successor Landlord under the Lease shall be limited to the extent of the
interest of the Successor Landlord in the Property.
4. In the event of any occurrence referred to in Paragraph 3 hereof,
Tenant agrees to attorn to the Successor Landlord on the terms set forth in
Paragraph 3 hereof, said attornment to be effective and self operative upon
notice from the Successor Landlord without the execution of any further
instruments on the part of either of the parties hereto.
5. This Agreement shall remain in effect throughout the term of the
Lease, including all option periods, if any.
6. Lessee agrees to notify Lender of any default of the landlord
under the Lease which would entitle Lessee to cancel the Lease or xxxxx the rent
payable under the Lease, and agrees that, notwithstanding any provision of the
Lease, no notice of cancellation of the Lease shall be effective unless Lender
has received said notice and has failed within thirty (30) days of the date
thereof to cure any default, or if such default cannot be cured by Lender within
thirty (30) days, has failed to commence and to diligently prosecute the curing
of any default which gave rise to such right of cancellation or abatement.
7. The provisions of this Agreement shall be self-operative and no
further instrument shall be necessary to effect the aforementioned continuation,
attornment, recognition and subordination. Nevertheless, in confirmation
thereof, Lessee shall execute and deliver, upon request of Lender or any other
party to whom Lessee has agreed to attorn, an appropriate certificate to confirm
such continuation, attornment, recognition and subordination.
8. All notices, demands, consents, approvals and other communications
(collectively, "Notices") hereunder shall be in writing and shall be sent by
hand, or by telecopy (with a duplicate copy sent by ordinary mail, postage
prepaid), or by postage prepaid, certified or registered mail, return receipt
requested, or by reputable overnight courier service, postage prepaid, addressed
to the party to be notified as set forth below:
If to Lender, The Union Labor Life insurance Company
Mortgage and Real Estate Department
000 Xxxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx X. Xxxxxxx
Telecopy No: 000-000-0000
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with a copy to, Manatt, Xxxxxx & Xxxxxxxx
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Telecopy No: 000-000-0000
if to Lessee, _____________________________
_____________________________
_____________________________
Attn:________________________
Telecopy No.:________________
with a copy to, _____________________________
_____________________________
_____________________________
Attn:________________________
Telecopy No.:________________
Notices shall be deemed given when delivered by hand or when a legible copy is
received by telecopier (with receipt being verified by telephone confirmation),
or if mailed, five (5) business days after mailing (or one business day for
overnight courier service), with failure to accept delivery constituting
delivery for this purpose. Any party hereto may change the addresses for Notices
set forth above by giving at least ten (10) days, prior Notice of such change in
writing to the other party as aforesaid and otherwise in accordance with these
provisions.
9. This Agreement shall begin upon and shall inure to the benefit of
Lender and Lessee, and their respective transferees, successors and assigns.
10. This Agreement may not be changed, waived, modified or discharged
orally, but only by an instrument in writing executed by the party against whom
enforcement of any change, waiver, modification or discharge is sought.
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be
duly executed as of the date first set fort above.
THE UNION LABOR LIFE INSURANCE COMPANY
By:___________________________________
Title:________________________________
By:___________________________________
Title:________________________________
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00
XXXXXXX X
XXX XXXXX XXXXXXXX XXXX
XXXXXXXXX, CONDITIONS AND RESTRICTIONS
RHETOREX, INC.
000 Xxxxxxxx Xxx
AGREED & ACCEPTED:
_________________ __________
Lessee Date
_________________ __________
Lessor Date
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LOS GATOS BUSINESS PARK
THIS DECLARATION is made on this 2nd day of February, 1976, by LOS
GATOS BUSINESS PARK, A LIMITED PARTNERSHIP organized under the laws of the State
of California.
The property described in Exhibit "A" is subject to this Declaration
and will be known as LOS GATOS BUSINESS PARK.
LOS GATOS BUSINESS PARK is being developed as a planned industrial
complex which will provide employment t opportunities for the residents of the
County of Santa Xxxxx and the surrounding area. This Declaration is designed to
complement local government and municipal regulations. Except where the LOS
GATOS BUSINESS PARK RESTRICTIONS conflict with such local government and
municipal regulations, said Restrictions shall be binding upon all owners,
lessees, licensees, occupants, users of the property subject to these
Restrictions, and their successors in interest as set forth in this Declaration.
It is assumed that the users of industrial sites in the LOS GATOS BUSINESS PARK
will be motivated to preserve these qualities through mutual cooperation and by
enforcing not only the letter but the spirit of this Declaration.
ARTICLE I - DEFINITIONS
Unless the context otherwise specifies or requires, the terms defined
in this Article I shall, for all purposes of this Declaration, have the meanings
herein specified.
Section 1 - "ARCHITECT": The term "Architect" shall mean a person
holding a certificate to practice architecture in the State of California under
authority of Division 3, Chapter 3 of the Business and Professions Code of the
State of California.
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Section 2 - "BENEFICIARY": The term "Beneficiary" shall mean a
mortgagee under a mortgage, as well as a beneficiary under a deed of trust.
Section 3 - "DECLARATION": The term "Declaration" shall man the
COVENANTS, CONDITIONS AND RESTRICTIONS FOR LOS GATOS BUSINESS PARK.
Section 4 - "DEED OF TRUST": The term "Deed of Trust" or "Trust Deed"
shall mean a mortgage as well as a deed of trust.
Section 5 - "FILE": The term "File" shall mean, with reference to any
subdivision map, record of survey or parcel map, the filing of said map in the
Office of the Recorder of the County of Santa Xxxxx, State of California.
Section 6 - "GRANTOR": The term "Grantor" shall mean LOS GATOS BUSINESS
PARK, a LIMITED PARTNERSHIP; and to the extent provided in Article VII - Section
I below, its successors and assigns.
Section 7 - "IMPROVEMENTS": The term "Improvements" shall include
buildings out-buildings, roads, driveways, parking areas, fences, screening
walls and barriers, retaining walls, stairs, decks, xxxxxx, windbreaks,
plantings, planted trees and shrubs, poles, signs, loading areas and all other
structures or landscaping improvements of every type and kind.
Section 8 - "MORTGAGEE": The term "Mortgagee" shall mean a beneficiary
under, or a holder of a deed of trust as well as a mortgagee under a mortgage.
Xxxxxxx 0 - "XXX XXXXX XXXXXXXX XXXX": The term "LOS GATOS BUSINESS
PARK" shall mean all of the real property now or hereafter made subject to this
Declaration.
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Section 10 "LOS GATOS BUSINESS PARK RESTRICTIONS": The term "Los Gatos
Business Park Restrictions" shall mean the covenants, conditions and
restrictions set forth in this Declaration, as it may from time to time be
amended or supplemented.
Section 11 - "OWNER": The term "Owner" shall mean and refer to any
person having any estate in any site, excluding any person who holds such
interest as security for the payment of an obligation, but including any
mortgagee or other security holder in actual possession of any lot, by
foreclosure or otherwise, and any person taking title from any such security
holder.
Section 12 - "RECORD" - "RECORDED": The term "Record" or "Recorded"
shall mean, with respect to any document, the recordation of said document in
the Office of the County Recorder of the County of Santa Xxxxx, State of
California.
Section 13 - "SIGN": The term "Sign" shall mean any structure, device
or contrivance, electric or non-electric, and all parts thereof which are
erected or used for advertising purposes upon or within which any poster, xxxx,
bulletin, printing, lettering, painting, device or other advertising of any kind
whatsoever is used, placed, posted, tacked, nailed, pasted, or otherwise
fastened or affixed to ground or improvements.
Section 14 - "SITE": The term "Site" shall mean all contiguous land
under one ownership.
Section 15 - "STREETS": The term "Streets" shall mean any street,
highway or other thoroughfare within or adjacent to the property and shown on
any recorded subdivision or parcel map, or record of survey, whether designated
thereon as street, xxxxxxxxx, xxxxx, xxxxx, xxxx, xxxxxxx, way, land, circle or
otherwise.
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Section 16 - "VISIBLE FROM NEIGHBORING PROPERTY": The term "Visible
From Neighboring Property" shall mean, with respect to any given object, that
such object is or would be visible to a person six (6) feet tall, standing on
any part of such neighboring property at an elevation no greater than the
elevation of the base of the object being viewed.
Section 17 - "LOT": The term "lot" shall mean the fractional part of
blocks as divided and sub-divided on subdivision or parcel maps of the Official
Records of the Recorder of Santa Xxxxx County, California, as they from time to
time become current.
ARTICLE II - PROPERTY SUBJECT TO THE LOS GATOS BUSINESS PARK RESTRICTIONS
Section 1 - GENERAL DECLARATION CREATING LOS GATOS BUSINESS PARK:
Grantor hereby declares that all of the real property located in the Town of Los
Gatos County of Santa Xxxxx, State of California, described in Exhibit "A".
which is attached hereto and incorporated herein by this reference is and shall
be, conveyed, hypothecated, encumbered, leased, occupied, built upon or
otherwise used, improved or transferred in whole or in part subject to the LOS
GATOS BUSINESS PARK RESTRICTIONS, meaning the covenants, conditions and
restrictions set forth in this Declaration. All of said restrictions are
declared and agreed to be in furtherance of a general plan for the subdivision,
improvement and sale of said real property and are established for the purpose
of enhancing and perfecting the value, desirability and attractiveness of said
real property and every part thereof. All of the LOS GATOS BUSINESS PARK
RESTRICTIONS shall run with all of said real property for all purposes and shall
be binding upon and inure to the benefit of Grantor and all owners, lessees,
licensees, occupants and their successor in interest as set forth in this
Declaration.
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Section 2 - ADDITION OF OTHER REAL PROPERTY BY GRANTOR:
A. GRANTOR'S POWER: Grantor may at any time during the pendency of
this Declaration add all or a portion of any land now or hereafter owned by
Grantor to the property which is covered by this Declaration, and upon recording
of a notice of addition of real property containing at least the provisions set
forth in Section 2B of this Article 11, the provisions of this Declaration
specified in said notice shall apply to such added land in the same manner as if
it were originally covered by this Declaration. Thereafter, to the extent this
Declaration is made applicable thereto, the rights, powers and responsibilities
of Grantor and the owners, lessees, licensees and occupants of parcels within
such added land shall be the same as in the case of the land described in
Exhibit "A".
B. NOTICE OF ADDITION OF LAND: The notice of addition of real
property referred to in Section 2A above shall contain at least the following
provisions:
(1) A reference to this Declaration stating the date of
recording hereof and the book or books of the records of Santa Xxxxx County,
California, and the page numbers where this Declaration is recorded;
(2) A statement that the provisions of this Declaration, or some
specified part thereof, shall apply to such added real property;
(3) A legal description of such added real property; and
(4) Such other or different covenants, conditions and
restrictions as Grantor shall, in its discretion, specify to regulate and
control the use, occupant and improvement of such added real property.
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ARTICLE III - REGULATION OF MOMENTS
Section 1 - APPROVAL OF PLANS:
A. APPROVAL REQUIRED: No improvement shall be erected, placed,
altered, maintained or permitted to remain on any land subject to this
Declaration until final plans and specifications shall have been submitted to
and approved in writing by Grantor. Such final plans and specifications shall be
submitted in writing in duplicate over the authorized signature of the owner,
lessee, licensee or other occupant of the site or his authorized agent. Such
plans and specifications shall be in such form and shall contain such
information as may be required by the Grantor, but in any event shall include:
(1) A site development plan of the lot showing the nature,
grading scheme, kind, shape, materials and location with respect to the
particular lot (including proposed front, rear and side setback lines) of all
structures, the location thereof with reference to structures on adjoining
portions of the property, and the number and location of all parking spaces and
driveways on the lot;
(2) A landscaping plan for the particular lot;
(3) A signing and lighting plan; and
(4) A building elevation plan showing dimensions, materials and
exterior color scheme and be in no less detail than required by the appropriate
governmental authority for the issuance of a building permit. Changes in
approved plans which materially affect building size, placement or external
appearance must be similarly submitted to and approved by Grantor.
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B. BASIS FOR APPROVAL: Approval shall be based, among other things,
on adequacy of site dimensions, adequacy of structural design, conformity and
harmony, of external design with neighboring structures, effect of location and
use of proposed improvements on neighboring sites, proper facing of main
elevation with respect to nearby streets, adequacy of screening of mechanical
air conditioning or other roof top installations, and conformity of the plans
and specifications to the purpose and general plan and intent of this
Declaration. No plans will be approved which do not provide for the underground
installation of power, electrical, telephone and other utility lines from the
property line to buildings. No plans will be approved which provide for
buildings covering more than fifty percent (50%) of the lot areas. Grantor shall
not arbitrarily or unreasonably withhold its approval of such plans and
specifications. Grantor shall have the right to disapprove any plans and
specifications submitted hereunder, including but not limited to any of the
following:
(1) Failure to comply with any of the Restrictions;
(2) Failure to include information in such plans and
specifications as may have been reasonably requested by Grantor;
(3) Objection to the exterior design, appearance of materials of
any proposed structure;
(4) Objection on the ground of incompatibility of any proposed
structure or use with existing structures or uses upon other lots or other
properties in the vicinity;
(5) Objection to the location of any proposed structure upon any
lot with reference to other lots in the vicinity;
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(6) Objection to the grading plan for any lot;
(7) Objection to the color scheme, finish, proportions, style or
architecture, height, bulk or appropriateness of any structure;
(8) Objection to the number or size of parking spaces, or to the
design of the parking area;
(9) Any other matter, which in the judgment of the Grantor,
would render the proposed structure or structures or use inharmonious with the
general plan for improvement of the property or with structures located upon
other lots or other properties in the vicinity.
C. APPROVAL: Upon approval by the Grantor of any plans and
specifications submitted hereunder, a copy of such plans and specifications as
approved, shall be deposited for permanent record with the Grantor, and a copy
of such plans and specifications bearing such approval, in writing, shall be
returned to the applicant submitting the same.
D. RESULT OF AN ACTION: If Grantor fails either to approve or
disapprove such plans and specifications within sixty (60) days after the same
have been submitted to it, it shall be conclusively presumed that Grantor has
disapproved said plans and specifications; provided, however, that if within
said sixty (60) day period Grantor gives written notice of the fact that more
time is required for the approval of such plans and specifications, there shall
be no presumption that the same are disapproved until the expiration of a
reasonable period of time as set forth in said notice.
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E. PROCEEDING WITH WORK: Upon receipt of approval from Grantor
pursuant to this Section the Owner or lessee to whom the same is given shall as
soon as practicable, satisfy all conditions thereof and diligently proceed with
the commencement and completion of all approved construction, refinishing,
altered and excavations. In all cases work shall be commenced within one (1)
year from the date of such approval. If there is a failure to comply with this
paragraph then the approval given pursuant to this Section shall be deemed
revoked unless Grantor upon request made prior to the expiration of said one (1)
year period extends the time for commencing work.
F. COMPLETION OF WORK: In any event, reconstruction, refinishing or
alteration of any such improvement shall be completed within two (2) years after
the commencement thereof except for so long as such completion is rendered
impossible or would result in great hardship due to strikes, fire, national
emergencies, natural calamities or other supervening forces beyond the control
of the Owner, lessee, licensee or occupant or his agents. Failure to comply with
this paragraph shall constitute a breach of the LOS GATOS BUSINESS PARK
RESTRICTIONS and subject the defaulting party or parties to all enforcement
procedures set forth in this Declaration and any other remedies provided by law
or in equity.
G. LIABILITY: Grantor shall not be liable for any damage, loss or
prejudice suffered or claimed on account of:
(1) The approval or disapproval of any plans, drawings and
specification whether or not defective;
(2) The construction or performance of any work, whether or not
pursuant to approved plans, drawings and specifications; or
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(3) The development of any property within the LOS GATOS
BUSINESS PARK.
H. REVIEW FEE: An architectural review fee shall be paid to Grantor
at such time as plans and specifications are submitted for approval based on the
following schedule;
(1) When the plans submitted are prepared by an architect, the
architectural review fee shall be Two Hundred Fifty Dollars ($250.00);
(2) In all other cases the architectural review fee shall be
Five Hundred Dollars ($500.00).
I. CONSTRUCTION WITHOUT APPROVAL: If any improvement shall be
altered, erected, placed or maintained upon any lot, or any new use commenced on
any lot, otherwise than in accordance with the approval by the Grantor pursuant
to the provisions of this Section, such alteration, erection, maintenance or use
shall be deemed to have been undertaken in violation of this Section and without
the approval required herein, and upon written notice from the Grantor, any such
structure so altered, erected, placed or maintained upon any lot in violation
hereof shall be removed or re-altered, and any such use shall be terminated so
as to extinguish such violation. If within fifteen (15) days after the notice of
such violation the Owner of the lot upon which such violation exists shall not
have taken reasonable steps toward the removal or termination of the same,
Grantor shall have the right, through its agents and employees, to enter upon
such lot, subject to any security controls imposed by the Government of the
United States (or any agency thereof) with respect to any operation being
conducted thereon, and to take such steps as may be necessary to extinguish
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such violation. Grantor or any such agent shall not thereby be deemed to have
trespassed upon such lot and shall be subject to no liability to the Owner or
occupant of such lot for such entry and any action taken in connection with the
removal of any violation. The cost of any abatement or removal hereunder shall
be a binding personal obligation of such mortgagee upon the lot in question. The
lien provided in this Section shall not be valid as against a bona-fide
purchaser (or bona-fide mortgagee) of a lot in question unless a suit to enforce
said lien shall have been filed in a court of record in Santa Xxxxx County,
California, prior to the recordation among the land records of Santa Xxxxx
County, California, of the deed (or mortgage) conveying the lot in question to
such purchaser (or subjecting the same to such mortgage).
Section 2 - LIMITATIONS ON IMPROVEMENTS:
A. MINIMUM SETBACK LINES: No improvements of any kind, and no part
thereof, shall be placed closer than permitted by Grantor to an interior
property line. No improvements of any kind, and no part thereof, shall be placed
closer than twenty-five (25) feet from a property line fronting streets.
B. EXCEPTIONS TO SETBACK REQUIREMENTS: The following structures and
improvements are specifically excluded from the foregoing setback requirements:
(1) Roof overhang subject to the specific approval of Grantor in
writing, provided it does not extend more than six (6) feet into the setback
area;
(2) Steps and walks;
(3) Paving and associated curbing except that vehicle parking
area shall not be permitted to extend within street setback area.
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(4) Fences, except that no fence shall be placed within the
street setback area unless specific approval is given by Grantor in writing;
(5) Landscaping;
(6) Planters, not to exceed three (3) feet in height, unless
specific written approval is given by Grantor;
(6) Signs identifying the owner, lessee or occupant subject to
the specific approval of Grantor in writing;
(7) Lighting facilities, subject to the specific approval of
Grantor in writing.
C. LANDSCAPING: Every site on which a building shall have been placed
shall be landscaped in accordance with plans and specifications submitted to and
approve by Grantor pursuant to Section 1 above. Landscaping as approved by
Grantor shall be installed within thirty (30) days of occupancy or completion of
the building, whichever occurs first, unless Grantor approves in writing another
completion date. After completion such landscaping shall be maintained in a
sightly and well-kept condition. The area of each site between any street and
any minimum setback line as defined by paragraphs A and B of this Section shall
be landscaped with an effective combination of street trees, trees, ground cover
and shrubbery. All other areas fronting on a street that are not utilized for
parking or driveways shall be landscaped in a similar manner. All areas of each
site not fronting on a street and not used for parking or storage shall be
landscaped utilizing ground cover and/or shrub and tree materials. Undeveloped
areas proposed for future expansion shall be maintained in a weed-free condition
and shall be landscaped if required by Grantor. Unpaved
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areas between the street curb line and the property line adjoining any street
shall be landscaped and maintained by Owner. An underground automatic landscape
irrigation system shall be provided by the owner over all landscaped areas.
Areas used for parking shall be landscaped, be or fenced in such a manner as to
screen said areas from view from adjacent streets Such screening shall extend at
least forty two (42) inches above the high point of the finished pavement in
said parking area. Plant materials used for this purpose shall consist of lineal
or grouped masses of shrubs and/or trees.
If, in the opinion and sole discretion of the Grantor, the required
landscape is not maintained in a sightly and well-kept condition, the Grantor
shall have the right, through its agents and employees, to enter onto any site
and to take such steps as may be necessary to maintain the landscaping in a
sightly and well-kept condition. Grantor, or any such agent or employee, shall
not thereby be deemed to have trespassed upon such site and shall be subject to
no liability to the owner or occupant of such site for such entry and any action
taken in connection with such necessary maintenance. The cost of any such
maintenance hereunder shall be a binding personal obligation of such Owner, as
well as a lien (enforceable in the same manner as a mortgage) upon the site in
question. The lien provided in this Section shall not be valid as against a
bona-fide purchaser (or bona-fide mortgagee) of a site in question unless a suit
to enforce said lien shall have been filed in a court of record in Santa Xxxxx
County, California, prior to the recordation among the land records of Santa
Xxxxx County, California, of a deed (or mortgage) conveying the site in question
to such purchaser (or subjecting the same to such mortgage).
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D. SIGNS:
(1) No sign shall be permitted on any site unless approved by
Grantor in writing. No sign shall be approved other than those identifying the
name, business and products of the person or firm occupying the premises and
those offering the premises for sale or for lease;
(2) The location of signs shall be governed by the setback
requirements set forth in Article III-Section 2 unless Grantor gives permission
for a non-conforming location;
E. PARKING AREAS:
(1) Adequate off-street parking shall be provided to accommodate
all parking needs for employee, visitor and company vehicles on the site. The
intent of this provision is to eliminate the need for any on-street parking;
provided that this provision does not prohibit on-street parking of public
transportation vehicles.
(2) On-Site: Required off-street parking shall be provided on
the site of the use served, or on a contiguous site, or within six hundred (600)
feet of this subject site. Where parking is provided on other than the site
concerned, a recorded document shall be filed with the Grantor and signed by the
Owners of the alternate site stipulating to the permanent reservation of the use
of the site for said parking.
(3) Paved Areas: Parking areas shall be paved so as to provide
dust-free, all-weather surfaces. Each parking space provided shall be designated
by lines painted on the paved surfaces and shall be adequate in area, and all
parking areas shall
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provide, in addition to parking spaces, adequate driveways and space for the
movement of vehicles.
(4) Parking Plan: The number of parking spaces required for each
site, and the specific location of the same, shall be designated in plans for
each site which have been submitted and approved in the manner set forth herein.
In determining the number of parking spaces and the location thereof of each
site, Grantor shall consider the exact nature of the use proposed for the site;
the anticipated number and manner of employment of persons on the site; the
nature and location of proposed structures on the site; and such other matters
as Grantor shall deem relevant.
(5) Limitation: No parking spaces shall be located on, and no
parking shall be permitted by the Grantor within designated street setback
areas.
F. STORAGE AND LOADING AREAS:
(1) Unless specifically approved by Grantor in writing, no
materials, supplies or equipment, including company-owned or operated trucks and
motor vehicles shall be stored in any area on a site except inside a closed
building, or behind a visual barrier screening such areas so that they are not
visible from the neighboring properties or public streets. Any storage areas
screened by visual barriers shall be located on the rear portions of the site,
unless approved by Grantor in writing. No storage areas shall extend into
setback lines as established herein unless approved by Grantor in writing.
(2) All provisions for vehicle loading shall be provided on the
site with on-street vehicle loading not permitted.
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(3) No loading dock, trucking or railroad activity shall be
permitted between the structure and any street, and no loading areas shall
encroach into setback areas unless specifically approved by Grantor.
(4) Loading dock areas shall be set back and screened so as not
to be visible from neighboring properties and streets, but in any event, the
docks shall not be closer than forty-five (45) feet from a property line
fronting any street unless specifically approved by Grantor in writing. ARTICLE
IV - REGULATION OF OPERATIONS AND USES
Section 1 - PERMITTED USES: Unless otherwise specifically prohibited
herein, any industrial operation and use will be permitted, provided Grantor
specifically consents to such use in writing, if it is performed or carried out
entirely within a building that is so designed and constructed that the enclosed
operations and uses do not cause or produce a nuisance to adjacent sites such
as, but not limited to vibration, sound, electro-mechanical disturbances and
radiation, electro-magnet disturbances, radiation, air or water pollution, dust,
emission of odorous, toxic and non-toxic matter. Certain activities which cannot
be carried on within a building may be permitted, provided Grantor specifically
consents to such activity in writing and further provided such activity is
screened so as not to be visible from neighboring properties and streets. All
lighting is to be shielded from adjacent sites.
Section 2 - RESTRICTIONS AND PROHIBITED USES:
A. PROHIBITED USES: The following operations and uses shall not be
permitted on any property subject to these restrictions:
(1) Residential of any type;
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(2) Trailer courts or recreation vehicle campgrounds;
(3) Hotels or motels;
(4) Junk yards or recycling facilities;
(5) Drilling for and/or the removal of oils gas or other
hydrocarbon substances (except that this provision shall not be deemed to
prohibit the entry of subject property below a depth of five hundred (500) feet
for such purposes);
(6) Commercial excavation of building or construction materials,
except in the course of approved construction as provided by Article III-Section
1 above;
(7) Distillation of bones;
(8) Dumping, disposal, incineration or reduction of garbage,
sewage, offal, dead animals or refuse;
(9) Fat rendering;
(10) Stockyard or xxxxxxxxx of animals;
(11) Refining of petroleum or of its products;
(12) Smelting of iron, tin, zinc, or other ores;
(13) Cemeteries;
(14) Jail or honor farms;
(15) Labor or migrant worker camps;
(16) Truck terminals;
(17) Petroleum storage yards.
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B. NUISANCES: No nuisance shall be permitted to exist or operate upon
any site so as to be offensive or detrimental to any property in the vicinity
thereof or to its occupants. A "nuisance" shall include but not be limited to
any of the following conditions:
(1) Dirt, Dust and Waste Discharge: No use of the property will
be permitted which emits dust, sweepings, dirt or cinders into the atmosphere,
or discharges liquid, solid wastes or other harmful matter into any stream,
river or other body of water which, in the opinion of the Grantor may adversely
affect the health, safety, comfort of, or intended property use by persons
within the area. Nor shall waste or any substance or materials of any kind be
discharged into any public sewer serving the property, or any part thereof, in
violation of any regulations of any public body having jurisdiction.
(2) Fumes, Gases, Odors, Etc.: No fumes, odors, gases, vapors,
acids or other substances shall be permitted to escape or be discharged into the
atmosphere which, in the opinion of Grantor, may be detrimental to the health,
safety or welfare of persons, or may interfere with the comfort of, persons
within the area, or which may be harmful to property or vegetation.
(3) Glare or Heat: Any operation producing intense glare or heat
shall be performed only within an enclosed or screened area and then only in
such manner that the glare or heat emitted will not be discernible from any
exterior lot line.
(4) Noise: At no point outside of any property plane shall the
sound pressure level of any machine, device, or any combination of same, from
any individual plant or operation exceed the decibel levels in the designated
preferred octave bands shown below:
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OCTAVE BAND MAXIMUM SOUND PRESSURE
CENTER FREQUENCY LEVELS (DB) AT BOUNDARY
(HZ) PLANE OF LOT
31.5 78
63 72
125 65
250 59
500 55
1000 52
2000 50
4000 48
8000 47
A-scale levels for monitoring purposes are equivalent to 60 dB(A). The maximum
permissible noise levels for the octave bands shown above are equal to an NC-50
Noise Criterion curve when plotted on the preferred frequency scale. Noise from
motor vehicles and other transportation facilities are exempted. The operation
of signalling devices and other equipment having impulsive or non-continuous
sound characteristics shall have the following corrections applied:
CORRECTIONS
Pure tone content -5dB
Impulsive character -5dB
Duration for non-continuous
sounds in daytime only,
1 min/hr -5dB
10 sec/10 min -10dB
2 sec/10 min -15dB
The reference level for the dB values listed above is the pressure of 0.0002
microbar or 0.0002 dyne/em.
(5) Smoke and Particulate Matter: Visible emissions of smoke
will not be permitted (outside any building) which exceed Ringlemann No. 1 on
the Ringlemann
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Chart of the United States Bureau of Mines, other than the exhausts emitted by
motor vehicles or other transportation facilities. This requirement shall also
be applicable to the disposal of trash and waste materials. Wind-borne dust,
sprays and mists originating in plants will not be permitted.
(6) Vibration: Buildings and other structures shall be
constructed and machinery and equipment installed and insulated on each site so
that the ground vibration inherently and recurrently generated is not
perceptible without instruments at any point along any of the exterior lot
lines.
C. CONDITION OF PROPERTY: The Owner of any site or lot shall at all
times keep the premises, buildings, improvements and appurtenances in a safe,
clean and wholesome condition and comply in all respects with all government,
health, fire and police requirements and regulations, and the Owner will remove
at his or its own expense any rubbish of any character whatsoever which may
accumulate on such site or lot. In the event such Owner fails to comply with any
or all of such specifications or requirements, the Grantor shall have the right,
privilege and license to enter upon such premises and make any and all
corrections or improvements that may be necessary to meet such standards and to
charge such Owner the expenses incurred in doing so. Grantor or any of its
agents shall not thereby be deemed to have trespassed upon such lot and shall be
subject to no liability to the Owner or occupant of such lot for such entry and
any action taken in connection with the removal of any violation. The cost of
any abatement or removal hereunder shall be a binding personal obligation on
such Owner as well as a lien (enforceable in the same manner as a mortgage) upon
the lot in question. The lien provided in this Section shall not be valid as
against a
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bona-fide purchaser (or a bona-fide mortgagee) of a lot in question unless a
suit to enforce said lien shall have been filed in a court of record in Santa
Xxxxx County, California, prior to the recordation among the land records Santa
Xxxxx County, of the deed (or mortgage) conveying the lot in question to such
purchaser, or subjecting the same to such mortgage.
D. REPAIR OF BUILDINGS: No building or structure upon any site shall
be permitted to fall into disrepair, and each such building and structure shall
at all times be kept in good condition and repair and adequately painted or
otherwise finished.
E. RIGHT OF ENTRY: During reasonable hours and subject to reasonable
security requirements, Grantor, or its authorized representative, shall have the
right to enter upon and inspect any building, site or parcel and the
improvements thereon embraced for the purpose of ascertaining whether or not the
provisions of LOS GATOS BUSINESS PARK RESTRICTIONS have been or are being
complied with and neither Grantor nor its authorized representative, shall be
deemed to have committed a trespass or other wrongful act by reason of such
entry or inspection.
F. REFUSE COLLECTION AREAS: All outdoor refuse collection areas shall
be visually screened so as not to be visible from streets, freeways and
neighboring property. No refuse collection areas shall be permitted between a
street and the front of a building.
G. IMPROVEMENTS: The Grantor reserves the sole right to grant
consents for the construction and operation of street railways, interurban,
rapid transit or other public utility facilities, freight railways, electric
light, telephone and telegraph pole lines, aboveground or underground conduits,
and gas pipes in and upon any and all streets now
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existing or hereafter established upon which any portion of the premises may now
or hereafter front or abut. The Grantor reserves and is hereby granted the
exclusive right to grant consents and to petition the proper authorities for any
and all street improvements such as grading, seeding, tree planting, sidewalks,
paving, sewer and water installation, whether it be on the surface or
sub-surface which in the opinion of the Grantor are necessary in or to the
property subject to these restrictions. The Grantor reserves the right to
approve aboveground utility lines across any property subject to these
restrictions, when such utility lines, in the opinion of the Grantor, are
necessary to the property subject to these restrictions.
Section 3 - OTHER OPERATIONS AND USES: Operations and uses which are
neither specifically prohibited nor specifically authorized by these
restrictions may be permitted in a specific case if operational plans and
specifications are submitted to and approved in writing by Grantor. Approval or
disapproval of such operational plans and specifications shall be based upon the
effect of such operations or uses on other property subject to these
restrictions or upon the occupants thereof, but shall be in the sole discretion
of Grantor.
ARTICLE V - DURATION, MODIFICATION AND REPEAL
Section 1 - DURATION OF RESTRICTIONS: The LOS GATOS BUSINESS PARK
RESTRICTIONS shall continue and remain in full force and effect at all times
with respect to all property, and each part thereof, now or hereafter made
subject thereto (subject, however, to the right to amend and repeal as provided
for herein) until January 1, 2009. However, unless within one (1) year prior to
January 1, 2009, there shall be recorded an instrument directing the terminate
of the LOS GATOS BUSINESS PARK RESTRICTIONS signed by owners of not less than
two-thirds (2/3) of the property then subject to these restrictions, based on
the
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number of square feet subject to these restrictions (excluding dedicated
streets), the LOS GATOS BUSINESS PARK RESTRICTIONS, as in effect immediately
prior to the expiration date shall be continued automatically without any
further notice for an additional period of ten (10) years and thereafter for
such periods of ten (10) years unless within one (1) year prior to the expansion
of a such period the LOS GATOS BUSINESS PARK RESTRICTIONS are terminated as set
forth above in this Section.
Section 2 - TERMINATION AND MODIFICATION: This Declaration or any
provision thereof, or any covenant, condition or restriction contained herein,
may be terminated, extended, modified or amended, as to the whole of said
property or portion thereof, with the written consent of the owners of sixty six
and two-thirds (66-2/3%) of the property subject to these restrictions, based on
the number of square feet owned as compared to the total number of square feet
subject to these restrictions (excluding dedicated streets), provided, however,
that so long as Grantor owns at least twenty five percent (25%) of the property
subject to these restrictions, or for a period of fifteen (15) years from the
effective date hereof, whichever period is longer, no such termination,
extension modification or amendment shall be effective without the written
approval of Grantor thereto. Provided further, that the provisions of Article
III and Article IV hereof shall inure to the benefit of and be enforceable
solely by Grantor, shall be capable of being amended by Grantor without the
consent of any other owner, person or entity, and shall not give any third party
any right or cause of action on account of the terms of this Declaration. No
such termination, extension, modification or amendment shall be effective until
a proper instrument in writing has been
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executed and acknowledged and recorded in the County where the land affected
thereby is situated.
ARTICLE VI - ENFORCEMENT
Section 1 - ABATEMENT AND SUIT: Violation or breach of any restriction
herein contained shall give to Grantor the right to enter upon the property or
as to which said violation or breach exists and to summarily xxxxx and remove at
the expense of the Owner, lessee or occupant thereof, any structure, thing or
condition that may be or exist thereon contrary to the intent and meaning of the
provisions hereof, or to prosecute a proceeding at law or in equity against the
person or persons who have violated or are attempting to violate any of these
restrictions to enjoin or prevent them from doing so, to cause said violation to
be remedied or to recover damages for said violation.
Section 2 - DEEMED TO CONSTITUTE A NUISANCE: The result of every action
or omission whereby any restriction herein contained is violated in whole or in
part is hereby declared to be and to constitute a nuisance, and every remedy
allowed by law or equity against an Owner, either public or private, shall be
applicable against every such result and may be exercised by Grantor.
Section 3 - ATTORNEY FEES: In any legal or equitable proceeding for the
enforcement of this Declaration or any provision hereof, whether it be an action
for damages, declaratory relief or injunctive relief, the losing party or
parties shall pay the attorney fees of the prevailing party or parties, in such
reasonable amount as may be fixed by the court in such proceedings, or in a
separate action brought for that purpose. The prevailing party shall be
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entitled to said attorney fees, even though said proceeding is settled prior to
judgment. All remedies provided herein or at law or in equity shall be
cumulative and not exclusive.
Section 4 - FAILURE TO ENFORCE NOT A WAIVER OF RIGHTS: The Grantor
shall have the right to waive or grant a variance from any requirement,
restriction or standard contained in these Restrictions. The failure of Grantor
to enforce any requirement, restriction or standard herein contained, shall in
no event be deemed to be a waiver of the right to do so thereafter, nor of the
right to enforce any other restriction.
ARTICLE VII - MISCELLANEOUS PROVISIONS
Section 1 - ASSIGNMENT OF RIGHTS AND DUTIES: Any and all of the rights,
powers and reservations of Grantor herein contained may be assigned to any
person, corporation or association which will assume the duties of Grantor
pertaining to the particular rights, powers and reservations assigned, and upon
any such person, corporation or association evidencing its consent in writing to
accept such assignment and assume such duties, he or it shall, to the extent of
such assignment, have the same rights and powers and be subject to the same
obligations and duties as are given to and assumed by Grantor herein. The term
"Grantor" as used herein includes all such assignees and their successors and
assigns. I f at any time Grantor ceases to exist and has not made such an
assignment, a successor Grantor may be appointed in the same manner as these
Restrictions may be terminated, extended, modified or amended under Article V -
Section 2. Any assignment or appointment made under this Section shall be in
recordable form and shall be recorded in the County where the land is situated.
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Section 2 - CONSTRUCTION NOISE AND ACCEPTANCE: Every person or other
entity who now or hereafter owns, occupies or acquires any right, title or
interest in or to any portion of the property made subject to these Restrictions
is and shall be conclusively deemed to have consented and agreed to every
covenant, condition and restriction contained herein, whether or not any
reference to this Declaration are contained in the instrument by which such
person or entity acquired an interest in said property.
Section 3 - WAIVER: Neither Grantor nor its successors or assigns shall
be liable to any Owner, lessee, licensee, or occupant of land subject to this
Declaration by reason of any mistake in judgment, negligence, nonfeasance,
action or inaction or for the enforcement or failure to enforce any provision of
this Declaration. Every Owner, lessee, licensee or occupant of any of said
property by acquiring his interest therein agrees that he will not bring any
action or suit against Grantor to recover any such damages or to seek equitable
relief.
Section 4 - MUTUALITY, RECIPROCITY - RUNS WITH LAND: All covenants,
conditions, restrictions and agreements contained herein are made for the
direct, mutual and reciprocal benefit of each and every part and parcel of the
property now or hereafter made subject to this Declaration, shall create mutual,
equitable servitudes upon each parcel in favor of every other parcel; shall
create reciprocal rights and obligations between the respective Owners of all
parcels and privity of contract and estate between all grantees of said parcels,
their heirs, successors and assigns; and shall, as to the owner of each parcel,
his heirs, successors and assigns, operate as covenants running with the land,
for the benefit of all other parcels, except as provided herein.
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Section 5 - RIGHTS OF MORTGAGEES: No breach of the restrictions and
other provisions contained herein, or any enforcement thereof, shall defeat or
render invalid the lien of any mortgage or deed of trust now or hereafter
executed upon land subject to these Restrictions; provided, however, that if any
portion of said property is sold under a foreclosure of any mortgage or under
the provisions of any deed of trust, any purchaser of such sale and his
successors and assigns shall hold any and all property so purchased subject to
all of the restrictions and other provisions of this Declaration.
Section 6 - PARAGRAPH HEADINGS: Paragraph headings, where used herein,
are inserted for convenience only and are not intended to be a part of this
Declaration or in any way to define, limit or describe the scope and intent of
the particular paragraphs to which they refer.
Section 7 - EFFECT OF INVALIDATION: If any provisions of this
Declaration is held to be invalid by any court, the invalidity of such provision
shall not effect the validity of. the remaining provisions hereof.
IN WITNESS WHEREOF, Grantor has executed this Declaration the day and
year first above written.
LOS GATOS BUSINESS PARK
A Limited Partnership
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx, III General Manager
Article VI, Section 4 entitled "Failure to Enforce Not a Waiver of
Rights" has been amended to read:
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The Grantor is hereby authorized and empowered to grant reasonable
variances from the provisions of this Declaration in order to overcome practical
difficulties and in order to prevent unnecessary hardship in the application of
the provisions contained herein, provided, however, that said variances shall
not materially alter or be inconsistent with the general plan and intent of this
Declaration. The failure of Grantor to enforce any requirement, restriction or
standard herein contained, shall in no event be deemed to be a waiver of the
right to do so thereafter, nor of the right to enforce any other restriction.
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LEASE GUARANTY
THIS LEASE GUARANTY is made as of the 17th day of November, 1995, by
Octel Communications Corporation, a Delaware corporation ("Guarantor"), in favor
of Los Gatos Business Park, a California limited partnership ("Lessor").
Guarantor recites as follows:
A. Lessor and Rhetorex, Incorporated, a California corporation
("Lessee"), have entered into that certain Lease (the "Lease") dated the date
hereof pursuant to which Lessor is leasing to Lessee certain premises located at
000 Xxxxxxxx Xxx, Xxx Xxxxx, Xxxxxxxxxx.
B. As a condition precedent to Lessor's execution and delivery of the
Lease, and as an inducement for Lessor to enter the Lease, Guarantor desires to
guaranty the payment of all rent under the Lease on the terms and conditions
described herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor hereby guaranties and agrees as follows:
1. Guarantor absolutely and irrevocably guaranties the payment of all
monthly rent, real estate taxes, operating expenses and other amounts referenced
under Section 3.B of the Lease which may from time to time be due and owing by
Lessee to Lessor under the Lease (the "Guaranteed Obligations"). If Lessee at
any time fails to pay any Guaranteed Obligation prior to the expiration of any
applicable cure period under the Lease, Guarantor will, upon demand from Lessor,
pay the same. This Guaranty shall be continuing and shall terminate only upon
the full and complete payment of all Guaranteed Obligations.
2. This Guaranty is a guaranty of payment and not of collection, the
obligations of Guarantor under this Guaranty are independent of the obligations
of Lessee, and Lessor may enforce this Guaranty against Guarantor without first
(a) making any effort at collection or enforcement of any Guaranteed Obligations
from or against Lessee or any other party that may be liable therefor, other
than providing any notices and cure periods required under the Lease, (b)
exercising or asserting any other right or remedy which may be available in
connection with the Guaranteed Obligations or resorting to or exhausting any
other security, guaranty or collateral held with respect to the Guaranteed
Obligations, or (c) asserting or filing any claim against the assets of Lessee,
Guarantor, or any other guarantor or any other party whatsoever. Neither failure
by Lessor to enforce any or all of its rights under the Lease or to insist upon
strict payment by Lessee of the Guaranteed Obligations, nor any grant by Lessor
of any indulgences or extensions of time to Lessee for the payment of any
Guaranteed Obligations, shall release Guarantor or in any way affect or diminish
Guarantor's obligations under this Guaranty. Guarantor expressly waives any
notice of acceptance of this Guaranty, diligence, presentment, demand, protest,
extension of time for payment of the Guaranteed Obligations, and notice of any
kind whatsoever, other than any notices and cure periods required under the
Lease.
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3. This Guaranty shall remain and continue in full force and effect
notwithstanding (a) the commencement or continuation of any action or proceeding
by, against or concerning Lessee under any federal or state bankruptcy,
insolvency or other debtor-relief law, (b) the voluntary or involuntary
appointment of a receiver, trustee, keeper or other person who takes possession
of any of Lessees assets, regardless of whether such appointment occurs as a
result of insolvency or any other cause, or (c) any assignment by Lessee for the
benefit of its creditors.
4. This Guaranty may not be amended, modified, waived, discharged or
terminated orally or by course of conduct, but only by an instrument in writing
duly executed by both Lessor and Guarantor. No waiver by Lessor of any default
of Lessee or Guarantor or any other event shall be effective unless in writing,
nor shall it operate as a waiver of any other default or of the same default on
a future occasion.
5. This Guaranty shall inure to the benefit of any person or persons,
entity or entities who now or hereafter may be entitled to the benefits or
obligated to perform the duties of Lessor under the Lease and shall be binding
upon the heirs, legal representatives, successors and assigns of Guarantor. All
rights and remedies of Lessor under this Guaranty and the Lease are cumulative
and not restrictive of any other rights or remedies available at law or in
equity.
6. Any notice required or permitted to be given hereunder shall be in
writing and shall be deemed duly given (a) when personally delivered, (b) one
day after being sent by Federal Express or similar overnight delivery service,
charges prepaid, or (c) three (3) business days after being deposited in the
U.S. Postal Service, postage prepaid, registered or certified mail, return
receipt requested (or when actually received, if earlier), and addressed as
follows: if to Lessor, at 000 Xxxxx Xxxx, Xxxxx 00, Xxxx Xxxx, Xxxxxxxxxx 00000;
if to Guarantor, at 0000 Xxxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention: Vice President of Real Estate and Facilities.
7. If either Lessor or Guarantor shall bring any action or legal
proceeding to enforce, protect or establish any term or covenant of this
Guaranty, the prevailing party shall be entitled to recover its reasonable
attorneys' fees, court costs and experts' fees as may be fixed by the court.
"Prevailing party" as used herein includes a party who dismisses an action for
recovery hereunder in exchange for sums allegedly due, performance of covenants
allegedly breached or consideration substantially equal to the relief sought in
the action.
8. The validity, effect, construction, performance and enforcement of
this Guaranty shall be governed in all respects by the laws of the State of
California (without regard to conflicts of laws). Whenever possible, each
provision of this Guaranty shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Guaranty
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Guaranty.
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IN WITNESS WHEREOF, the undersigned has executed this Guaranty, by its
duly-authorized representative, as of the day and year first above written.
OCTEL COMMUNICATIONS CORPORATION,
a Delaware corporation
By: /s/ Xxxxx Xxxxx
-----------------------------
Its: Treasurer
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