EXHIBIT 10.9
LEASE
Basic Lease Information
The following Basic Lease Information is incorporated in and made a
part of the Lease to which it is attached. If there is any conflict between
the Basic Lease Information and the Lease, the Basic Lease Information shall
control.
Date (for reference
purposes only): March 24, 2000
Landlord: 000 Xxxxx Xxxx, LLC,
a California limited liability company
Tenant: Xxxxxxx-Xxxxxxx Company,
a California corporation
Guarantor: N/A
Premises (SECTION 1.1): All of the building ("BUILDING") outlined in
EXHIBIT A-1, containing approximately 81,561
rentable square feet ("RSF") of building area.
Building: Located at 000 Xxxxx Xxxx Xxxxxxx, Xxx Xxxx,
Xxxxxxxxxx consisting of a two-story building.
Project (SECTION 1.1): The land and the building outlined in EXHIBIT A-2.
Term (SECTION 2.1): Ten (10) years, or longer, pursuant to SECTION 2.1.
Anticipated Commencement
Date: July 1, 2000
Commencement Date: See SECTION 2.1
Expiration Date: See SECTION 2.1
Monthly Base Rent
(SECTION 3.1(A)): $158,340 no/100, subject to increase as
provided in SECTION 3.1(a).
Tenant's Percentage
Share (SECTION 3.1(b)): 100%
Parking (SECTION 15.8): 325 spaces
Security Deposit:
(SECTION 3.3.) One month's Base Rent.
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Rent Payment
Address (SECTION 3.7): 401 River Oaks, LLC
c/o Xxxxxxxx Xxxx Company
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxx
Permitted Use
(SECTION 4.1): General office use, distribution of
electronic hardware, research and
development activities, light manufacturing
and related sales.
Landlord's
Address (SECTION 14.1): 401 River Oaks, LLC
c/o Xxxxxxxx Xxxx Company
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxxxx 00000-0000
With a copy to:
Xxxxxxx Associate Real Estate Counsel, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Asset Management
With a copy to:
Xxxx, Xxxxxxxx, Xxxxxxxx & Xxxxxx, LLP
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Tenant's
Address (SECTION 14.1): Prior to the Commencement Date
Xxxxxxx Xxxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxxx
With a copy to:
Xxx Xxxxxx
Irell & Xxxxxxx, LLP
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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After the Commencement Date
at the Premises
Guarantor's
Address (SECTION 14.1): N/A
Landlord's Brokers
(SECTION 15.5) Xxxxx Xxxxxx, Senior Vice President
Xxxxx & Xxxxx Company
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Xxxxx Xxxxxxx, Vice President
Xxxxxxxx Xxxx Company
and
Xxxxxx Xxx, Vice President
Xxxxxxxx Xxxx Company
0000 Xxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Xxxxxx's Broker
(SECTION 15.5): Xxxx Xxxxxxx, Executive Vice President
Xxxxx Xxxxxxx, Senior Vice President
Xxxxxxx & Xxxxx Commercial
0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
EXHIBITS
Exhibit A-1 Plan(s) Outlining the Premises and the Building
Exhibit A-2 Plan(s) Outlining the Project
Exhibit B Work Letter Agreement
Schedule B-1 Description of Landlord's Work
Exhibit C Form of Memorandum Confirming Term
Exhibit D Description of Tenant's Trade Fixtures
Exhibit E Rules and Regulations
Exhibit F Option to Extend/Fair Market Rental Rate
Exhibit G Parking Rules and Regulations
Exhibit H Letter of Credit Terms
Exhibit I Method of Calculating Rentable Square Feet
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TABLE OF CONTENTS
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ARTICLE 1 Premises .......................................................................................1
1.1 Lease of Premises ..............................................................................1
1.2 Method of Calculating RSF ......................................................................1
ARTICLE 2 Term ...........................................................................................1
2.1 Term of Lease ..................................................................................1
2.2 Landlord to Complete Landlord's Work and Deliver the Premises ..................................2
2.3 Tenant to Construct Tenant Improvements ........................................................2
2.4 Entry Into Premises ............................................................................2
2.5 Memorandum Confirming Term .....................................................................3
2.6 Holding Over ...................................................................................3
ARTICLE 3 Rent ...........................................................................................3
3.1 Base Rent and Additional Rent ..................................................................3
3.2 Procedures .....................................................................................5
3.3 Security Deposit ...............................................................................7
3.4 Late Payment ...................................................................................7
3.5 Other Taxes Payable by Tenant ..................................................................8
3.6 Certain Definitions ............................................................................8
3.7 Rent Payment Address ..........................................................................10
ARTICLE 4 Use of the Premises ...........................................................................10
4.1 Permitted Use .................................................................................10
4.2 Environmental Definitions .....................................................................11
4.3 Environmental Requirements ....................................................................11
4.4 Compliance With Law ...........................................................................12
4.5 Rules and Regulations .........................................................................12
4.6 Entry by Landlord .............................................................................12
ARTICLE 5 Utilities and Services ........................................................................13
5.1 Tenant's Responsibilities .....................................................................13
5.2 Landlord's Responsibilities ...................................................................13
ARTICLE 6 Maintenance and Repairs .......................................................................13
6.1 Obligations of Landlord .......................................................................13
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6.2 Obligations of Tenant .........................................................................15
6.3 Tenant's Obligations at the End of the Term ...................................................15
ARTICLE 7 Alteration of the Premises ....................................................................15
7.1 No Alterations by Tenant ......................................................................15
7.2 Landlord's Property ...........................................................................17
ARTICLE 8 Indemnification and Insurance .................................................................18
8.1 Damage or Injury ..............................................................................18
8.2 Insurance Coverages and Amounts ...............................................................18
8.3 Insurance Requirements ........................................................................19
8.4 Subrogation ...................................................................................19
8.5 Landlord's Fire and Casualty Insurance ........................................................19
ARTICLE 9 Assignment or Sublease ........................................................................20
9.1 Prohibition ...................................................................................20
9.2 Landlord's Consent or Termination .............................................................20
9.3 Completion ....................................................................................21
9.4 Tenant Not Released ...........................................................................21
9.5 Landlord's Consent ............................................................................22
9.6 Remedies ......................................................................................22
9.7 Certain Permitted Transfers ...................................................................22
ARTICLE 10 Events of Default and Remedies.................................................................22
10.1 Default by Tenant .............................................................................23
10.2 Termination ...................................................................................24
10.3 Continuation ..................................................................................24
10.4 Remedies Cumulative ...........................................................................25
10.5 Tenant's Primary Duty .........................................................................25
10.6 Abandoned Property ............................................................................25
10.7 Landlord Default ..............................................................................25
ARTICLE 11 Damage or Destruction .........................................................................25
11.1 Restoration....................................................................................25
11.2 Termination of Lease ..........................................................................26
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11.3 Exclusive Remedy ..............................................................................26
ARTICLE 12 Eminent Domain ................................................................................27
12.1 Condemnation ..................................................................................27
12.2 Award .........................................................................................27
12.3 Temporary Use .................................................................................27
12.4 Definition of Taking ..........................................................................28
12.5 Exclusive Remedy ..............................................................................28
ARTICLE 13 Subordination and Sale ........................................................................28
13.1 Subordination .................................................................................28
13.2 Sale of the Project ...........................................................................28
13.3 Estoppel Certificate...........................................................................28
ARTICLE 14 Notices .......................................................................................29
14.1 Method ........................................................................................29
ARTICLE 15 Miscellaneous .................................................................................30
15.1 General .......................................................................................30
15.2 No Waiver .....................................................................................30
15.3 Attorneys' Fees ...............................................................................30
15.4 Exhibits ......................................................................................30
15.5 Broker(s) .....................................................................................30
15.6 Waivers of Jury Trial and Certain Damages .....................................................31
15.7 Entire Agreement ..............................................................................31
15.8 Parking .......................................................................................31
15.9 Choice of Law .................................................................................31
15.10 No Air Rights .................................................................................31
15.11 Modification of Lease .........................................................................32
15.12 Landlord's Title ..............................................................................32
15.13 Application of Payments .......................................................................32
15.14 Time of Essence ...............................................................................32
15.15 Right to Lease ................................................................................32
15.16 Force Majeure .................................................................................32
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15.17 Exculpation ...................................................................................33
15.18 No Discrimination .............................................................................33
15.19 Counterparts...................................................................................33
15.20 Roof Rights ...................................................................................33
15.21 Signage .......................................................................................33
15.22 Reasonableness ................................................................................34
15.23 No Liens on Tenant's Equipment ................................................................34
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LEASE
This Lease (together with the Basic Lease Information and EXHIBITS A
THROUGH I which are incorporated into the Lease by this reference,
collectively the "LEASE") is made as of the date specified in the Basic Lease
Information, by and between 401 River Oaks, LLC, a California limited
liability company ("LANDLORD"), and the tenant specified in the Basic Lease
Information ("TENANT"), who hereby agree as follows:
ARTICLE 1
PREMISES
1.1 LEASE OF PREMISES. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, for the term and subject to the covenants
hereinafter set forth, to all of which Landlord and Tenant hereby agree, the
space(s) described on EXHIBIT A-1 (the "PREMISES") in the Building described
on EXHIBIT A-1 as Phase I (the "BUILDING") specified in the Basic Lease
Information located on the real property specified in the Basic Lease
Information and described more specifically on EXHIBIT A-2 (the "PROJECT").
The Project includes the land and the Building in which the Premises are
located. The method by which RSF were determined is set forth in SECTION 1.2.
Landlord and Tenant stipulate that, for purposes of this Lease, the Premises
and the Building, respectively, each contains the number of RSF specified in
the Basic Lease Information and Tenant's Percentage Share specified in the
Basic Lease Information is the ratio of such RSF of the Premises to the RSF
in the Building (I.E., 100% because Tenant is leasing the entire Building).
During the term of this Lease, Tenant shall have the nonexclusive right, in
common with other tenants of the Project, to use only for their intended
purposes the common areas (such as driveways, sidewalks, parking areas,
loading areas and access roads) in the Project that are designated by
Landlord as common areas and not leased to or allocated for the exclusive use
of another tenant of the Project. Landlord shall have the right from time to
time to change the size, location, configuration, character or use of any
such common areas, construct additional improvements or facilities in any
such common areas, or close any such common areas, including as described in
SECTION 3.6(e). Tenant shall not interfere with the rights of Landlord and
other tenants of the Project to use such common areas. So long as the
Building and the New Building (defined in SECTION 3.6(e) below) are leased
entirely by Tenant and its subtenants, the common areas in the Project will
be available for their exclusive use, subject only to Landlord's right of
entry herein.
1.2 METHOD OF CALCULATING RSF. The RSF was calculated utilizing the
drip line to drip line method as further described in EXHIBIT I.
ARTICLE 2
TERM
2.1 TERM OF LEASE. The term of this Lease ( the "TERM") shall be the
TERM specified in the Basic Lease Information, which shall commence on the
earliest of (i) the date Tenant, or any person occupying any of the Premises
with Tenant's permission, commences business
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operations from the Premises or (ii) the date that the Tenant Improvements
are substantially completed or (iii) July 1, 2000 as such date may be
extended by Landlord Delay, as defined in EXHIBIT B (the "COMMENCEMENT DATE")
and, unless sooner terminated as hereinafter provided, shall end on the
earlier of (x) the expiration date of the New Building Lease (defined below)
or (y) July 1, 2012 (the "EXPIRATION DATE"). If Landlord, for any reason
whatsoever, does not deliver possession of the Premises to Tenant on or
before the Anticipated Commencement Date, this Lease shall not be void or
voidable and Landlord shall not be liable to Tenant for any loss or damage
resulting therefrom. Tenant acknowledges that (a) Tenant has inspected the
Premises and the Building or has had the Premises and the Building inspected
by professional consultants retained by Xxxxxx, (b) Tenant is familiar with
the condition of the Premises and the Building, (c) the Premises and the
Building are suitable for Tenant's purposes, (d) although Tenant has received
from Landlord the maintenance records of, has inspected the HVAC system or
has had the HVAC system inspected by professional consultants retained by
Xxxxxx, Landlord makes no representations as to the condition of such system,
and Tenant is accepting the HVAC system "as is" and (e) except for the
improvements to be constructed or installed by Landlord pursuant to EXHIBIT
B, the condition of the Premises and the Building is acceptable to Tenant.
Except for the Improvements to be constructed or installed by Landlord
pursuant to EXHIBIT B, Landlord shall have no obligation to construct or
install any improvements in the Premises or the Project or to remodel,
renovate, recondition, alter or improve the Premises or the Building in any
manner, and Tenant shall accept the Premises "AS IS" on the Commencement Date.
2.2 LANDLORD TO COMPLETE LANDLORD'S WORK AND DELIVER THE PREMISES.
Landlord shall construct or install Xxxxxxxx's Work pursuant to the Work
Letter Agreement attached as EXHIBIT B. One (1) day after receipt of the
Letter of Credit by Landlord from Tenant pursuant to SECTION 3.3 below,
Landlord shall deliver to Tenant possession of that portion of the Premises
that is not occupied by the current tenant, for the purpose of inspection and
planning of the construction of the Tenant Improvements. Landlord shall
deliver the entire Premises to Tenant for the purpose of construction of
Tenant Improvements by Tenant as provided in EXHIBIT B, no later than July 1,
2000, and Xxxxxx agrees to accept such delivery of the Premises. However, if
the Premises are not so delivered by September 1, 2000 and the delay is
caused by damage or destruction, then Tenant's obligations shall continue and
ARTICLE 11, below, shall govern. In the event that Xxxxxx has not commenced
conducting business in the Premises by September 1, 2000, on account of
Landlord Delay, the Monthly Base Rent shall be abated from and after said
date, such abatement to be to the extent and for the period of the Landlord
Delay.
2.3 TENANT TO CONSTRUCT TENANT IMPROVEMENTS. Tenant shall construct
or install the Tenant Improvements to be constructed or installed by Tenant
pursuant to the Work Letter Agreement attached as EXHIBIT B at its cost
except for those costs permitted to be paid from the Tenant Improvement
Allowance described therein. Landlord shall pay for utilities during the
construction of Tenant Improvements, but in no event beyond the Commencement
Date.
2.4 ENTRY INTO PREMISES. Tenant may enter the Premises upon delivery
thereof as provided in SECTION 2.2 in order to commence construction of the
Tenant Improvements, to install its furniture, trade fixtures and equipment
and to prepare for commencement of business operations therein, provided that
same can be accomplished by Tenant in a manner which will not interfere with,
or delay, Landlord in the completion of the Landlord's Work; any such delay
or interference by Tenant shall constitute a Tenant Delay. Landlord shall not
be responsible for, and Tenant is required to obtain insurance covering, any
loss (including theft), damage or destruction to any work or material
installed or stored by Tenant, or by any contractor or
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individual involved in the construction of the Tenant Improvements, or for
any injury to Tenant or Tenant's employees, agents, contractors, licensees,
directors, officers, partners, trustees, visitors or invitees or to any other
person to the extent caused by Xxxxxx's entry prior to the Commencement Date.
Landlord shall have the right to post appropriate notices of
non-responsibility and to require Tenant to provide Landlord with evidence
that Tenant has fulfilled its obligation to provide insurance pursuant to
this Lease. All terms and conditions of this Lease shall apply to Tenant's
early entry into the Premises except for the payment of Base Rent, CAM
Expenses, Property Taxes and Insurance pursuant to SECTION 3.1 below which
will not occur until the Commencement Date.
2.5 MEMORANDUM CONFIRMING TERM. Landlord and Tenant each shall,
promptly after the Commencement Date has been determined, execute and deliver
to the other a Memorandum Confirming Term in the form of EXHIBIT C attached
hereto, which shall set forth the actual Commencement Date and the Expiration
Date for this Lease, but the term of this Lease shall commence and end in
accordance with this Lease whether or not the Memorandum Confirming Term is
executed.
2.6 HOLDING OVER. If, with the written consent of Landlord, Xxxxxx
holds possession of the Premises after the Expiration Date, Tenant shall
become a tenant from month to month under this Lease; but the Base Rent
during such month to month tenancy shall be equal to one hundred fifty
percent (150%) of the Base Rent in effect at the expiration of the term of
this Lease. Landlord and Tenant each shall have the right to terminate such
month to month tenancy by giving at least thirty (30) days' written notice of
termination to the other at any time, in which event such tenancy shall
terminate on the termination date set forth in such termination notice. If
Tenant, without the written consent of Landlord, holds possession of the
Premises without the written consent of Landlord, Tenant shall pay rent as
set forth in the first sentence of this SECTION 2.6 and shall be responsible
to Landlord for all damages incurred by Landlord as a result of such holdover
and attorneys' fees and costs pursuant to SECTION 15.4 of this Lease. Nothing
in this Lease shall be deemed to expressly, or by implication, grant Tenant
the right to hold over in the Premises, and Landlord's consent to any
holdover shall occur only if Landlord, in the exercise of its sole and
absolute discretion, agrees to such holdover pursuant to a separate written
agreement signed by both Landlord and Xxxxxx.
ARTICLE 3
RENT
3.1 BASE RENT AND ADDITIONAL RENT. Tenant shall pay to Landlord the
following amounts as rent for the Premises:
(a) During the term of this Lease, beginning with the Commencement
Date, Tenant shall pay to Landlord as Base Rent each month the amount of
Monthly Base Rent specified below:
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MONTHLY BASE RENT MONTHLY PERIODS BEGINNING
WITH COMMENCEMENT DATE
$158,340.00 Months 1-12
$164,673.60 Months 13-24
$171,260.54 Months 25-36
$178,110.97 Months 37-48
$185,235.40 Months 49-60
$192,644.82 Months 61-72
$200,350.61 Months 73-84
$208,364.64 Months 85-96
$216,699.22 Months 97-108
$225,367.19 Months 109-120
$234,381.88 Months 121-132 (if applicable)
$243,757.16 Months 133-144 (if applicable)
Should the Commencement Date occur other than on the first day of a
month, then the Monthly Base Rent for the partial month shall be at the rate
of $158,340 prorated for such partial month, which shall be paid on the
Commencement Date. On the Commencement Date, Tenant shall pay to Landlord
$158,340.00 representing Monthly Base Rent for the first month of the Term.
(b) During each calendar year (or part thereof) during the Term,
Tenant shall pay to Landlord, as additional monthly rent ("ADDITIONAL MONTHLY
RENT") estimated by Landlord as described in SECTION 3.2:
(i) Tenant's Percentage Share specified in the Basic Lease
Information of all CAM Expenses paid or incurred by Landlord in such
year;
(ii) Tenant's Percentage Share specified in the Basic Lease
Information of the total dollar amount of all Property Taxes paid or
incurred by Landlord in such year; and
(iii) Tenant's Percentage Share specified in the Basic
Lease Information of the total dollar amount of all Insurance Costs
paid or incurred by Landlord in such year.
(c) Throughout the Term, Tenant shall pay, as additional rent, all
other amounts of money and charges required to be paid by Tenant under this
Lease ("ADDITIONAL RENT"), whether or not such amounts of money or charges
are designated Additional Rent. As used in this Lease,
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"RENT" shall mean and include all Base Rent, Additional Monthly Rent and
Additional Rent payable by Tenant in accordance with this Lease.
3.2 PROCEDURES. The Additional Monthly Rent payable by Tenant
pursuant to SECTION 3.1(b) hereof (CAM Expenses, Property Taxes and Insurance
Costs) shall be calculated and paid in accordance with the following
procedures:
(a) On or before the Commencement Date, or as soon thereafter as
practicable, and on or before the first day of each subsequent calendar year
during the term of this Lease, or as soon thereafter as practicable. Landlord
shall give Tenant written notice of Xxxxxxxx's estimate of the amounts
payable under SECTION 3.1(b) hereof for the balance of the first calendar
year after the Commencement Date or for the ensuing calendar year, as the
case may be, which estimates shall be prepared in a commercially reasonable
manner. Tenant shall pay such estimated amounts to Landlord in equal monthly
installments, in advance, on or before the Commencement Date and on or before
the first day of each month during such balance of the first calendar year
after the Commencement Date or during such ensuing calendar year, as the case
may be. If such notice is not given for any calendar year, Tenant shall
continue to pay on the basis of the prior year's estimate until the month
after such notice is given, and subsequent payments by Tenant shall be based
on Landlord's current estimate. If, at any time, Landlord determines that the
amounts payable under SECTION 3.1(b) hereof for the current calendar year
will vary from Landlord's estimate, Landlord may, by giving written notice to
Tenant, revise Landlord's estimate for such year, and subsequent payments by
Tenant for such year shall be based on such revised estimate.
(b) By each April 1 during the Term beginning with April 1, 2001, or
a reasonable time thereafter, Landlord shall give Tenant a written statement
of the amounts payable by Tenant under SECTION 3.1(b) hereof for the prior
such calendar year certified by Landlord. If such statement shows a total
amount owing by Tenant that is less than the estimated payments for such
calendar year previously made by Tenant, Landlord shall credit the excess to
the next monthly installments of the amounts payable by Tenant under SECTION
3.1(b) hereof (or, if the Term has ended, Landlord shall refund the excess to
Tenant with such statement). If such statement shows a total amount owing by
Tenant that is more than the estimated payments for such calendar year
previously made by Tenant, Tenant shall pay the deficiency to Landlord within
thirty (30) days after delivery of such statement. Failure by Landlord to
give any notice or statement to Tenant under this SECTION 3.2 shall not waive
Landlord's right to receive, or Tenant's obligation to pay, the amounts
payable by Tenant under SECTION 3.1(b) hereof.
(c) In the event that Tenant disputes the amount of CAM Expenses,
Property Taxes and Insurance Costs (collectively, "OPERATING COSTS") set
forth in any annual statement delivered by Landlord, then subject to the
terms and conditions below, Tenant shall have the right to provide notice to
Landlord that it intends to inspect and copy Xxxxxxxx's accounting records
for the calendar year covered by such statement during normal business hours
("TENANT REVIEW") and shall sign an agreement with Landlord whereby Tenant
agrees not to disclose the results of such (and the information obtained in
connection with such) audit to anyone other than Tenant's employees and/or
attorneys, who shall also sign an agreement to keep such information
confidential. If Xxxxxx retains a third part), to inspect Landlord's
accounting records (a "THIRD PARTY AUDITOR"), then as a condition precedent
to an), such inspection. Tenant shall deliver to Landlord a copy of Tenant's
written agreement with such Third Party Auditor, which agreement shall
include provisions which state that (i) Landlord is an intended third-party
beneficiary of
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such agreement and (ii) such Third Party Auditor shall maintain in strict
confidence any and all information obtained in connection with the Tenant
Review and shall not disclose such information to any person or entity other
than to the management personnel of Tenant and its attorneys. Any Tenant
Review shall take place in Xxxxxxxx's office at the Project or at such other
location as Landlord may reasonably designate in Northern California, and
Landlord will provide Tenant with reasonable accommodations for such Tenant
Review and reasonable use of such available office equipment, but may charge
Tenant for telephone calls, faxes, and photocopies. Tenant shall provide
Landlord with not less than two (2) weeks' prior written notice of its desire
to conduct such Tenant Review. In connection with the foregoing review,
Landlord shall furnish Tenant with such reasonable supporting documentation
relating to the subject statement as Tenant may reasonably request. In no
event shall Tenant have the right to conduct such Tenant Review if (a) an
Event of Default by Tenant is then in existence under this Lease with respect
to any of Tenant's monetary obligations, including, without limitation, the
payment by Tenant of Tenant's Percentage Share of Operating Costs described
in the statement which is the subject of Tenant's Review, which payment, at
Tenant's election, may be made under protest or (b) if any amount invoiced by
Landlord to Tenant remains unpaid, but Tenant may make such payment to
Landlord under protest. In the event that following Xxxxxx's Review, Xxxxxx
and Landlord continue to dispute the amount of Operating Costs shown on
Landlord's statement and Landlord and Xxxxxx are unable to resolve such
dispute, then subject to the last paragraph of this clause (c), either
Landlord or Tenant may initiate a legal action to resolve the dispute. If the
resolution of the parties' dispute with regard to Xxxxxx's Percentage Share
of Operating Costs shown on the statement, pursuant to the judgment of a
court or otherwise, reveals an error in the calculation of Xxxxxx's
Percentage Share of those Operating Costs to be paid for such calendar year,
the parties' sole remedy shall be for the parties to make appropriate
payments or reimbursements, as the case may be, to each other as are
determined to be owing. Any such payments shall be made within thirty (30)
days following the resolution of such dispute. Tenant shall be responsible
for all costs and expenses associated with Tenant's Review, and Tenant shall
be responsible for all reasonable audit fees, attorneys' fees and related
costs of Tenant relating to a resolution of the issue (collectively, the
"COSTS"). However, if the parties' final resolution of the dispute involves
the overstatement of Operating Costs by Landlord for such calendar year in
excess of five percent (5%), then Landlord shall be responsible for all
Costs. An overcharge by Landlord of Operating Costs shall not entitle Tenant
to terminate this Lease, and Landlord shall not be obligated to make a refund
to Tenant until thirty (30) days after the final resolution of the dispute.
Subject to the terms set forth below, this provision shall survive the
termination of this Lease to allow the parties to enforce their respective
rights hereunder.
In the event that, within six (6) months following receipt of any
particular annual statement, Tenant or Landlord shall fail to either (i)
fully and finally settle any dispute with respect to such statement or (ii)
file and serve a complaint in a court of competent jurisdiction to resolve
the dispute, then Tenant shall have no further right to conduct a Tenant
Review with respect to such statement or to dispute the amount of Tenant's
Percentage Share of Operating Costs set forth in the applicable statement.
(d) If the term of this Lease commences or ends on a day other than
the first or last day of a calendar year, respectively, the amounts payable
by Tenant under SECTION 3.1(b) hereof applicable to the calendar year in
which such term commences or ends shall be prorated according to the ratio
which the number of days during the term of this Lease in such calendar year
bears to three hundred sixty-five (365). Termination of this Lease shall not
affect the
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obligations of Landlord and Tenant pursuant to SECTION 3.2(b) hereof to be
performed after such termination.
3.3 SECURITY DEPOSIT. Upon signing this Lease, Tenant shall deliver
to Landlord (a) an amount equal to the Base Rent for the first month of the
term of this Lease for which the Base Rent is to be paid, which amount
Landlord shall apply to the Base Rent for such first month, and (b) the
amount of the security deposit specified in the Basic Lease Information. (The
amounts in clauses (a) and (b), above, plus any amounts added thereto as
provided in this Lease, are referred to herein as the "SECURITY DEPOSIT").
The Security Deposit shall be held by Landlord as security for the
performance by Tenant of all of the covenants of this Lease to be performed
by Xxxxxx, and Tenant shall not be entitled to interest thereon. If Tenant
fails to perform any of the covenants of this Lease to be performed by
Xxxxxx, then Landlord shall have the right, but no obligation, to apply the
Security Deposit, or so much thereof as may be necessary, to cure any such
failure by Tenant, without prior notice to Tenant. If Landlord applies the
Security Deposit or any part thereof to cure any such failure by Tenant, then
Tenant shall immediately pay to Landlord the sum necessary to restore the
Security Deposit to the full amount required by this SECTION 3.3. If Tenant
does not do so, Landlord may restore the Security Deposit by sums drawn on
the Letter of Credit, as described and defined below, in which case Tenant
shall restore the Letter of Credit to its original amount within ten (10)
days after such a draw. Landlord shall return any unapplied portion of the
Security Deposit to Tenant within sixty (60) days after termination of this
Lease. Upon termination of the original Landlord's or any successor owner's
interest in the Premises, the original Landlord or such successor owner shall
be released from further liability with respect to the Security Deposit upon
the original Landlord's or such successor owner's transferring the Security
Deposit to the new owner.
Tenant shall also deliver to Landlord a letter of credit in the form
and amount required by and pursuant to EXHIBIT H ("LETTER OF CREDIT"). If by
thirty (30) days after the date hereof Xxxxxx has not delivered the Letter of
Credit in the form and amount as required by EXHIBIT H, Tenant shall have
committed an Event of Default. Xxxxxxxx and any successor in interest of
Xxxxxxxx shall have the right to transfer the Letter of Credit to a successor
in interest, and be released from further liability with respect thereto, in
the same manner as with respect to the Security Deposit.
3.4 LATE PAYMENT. Tenant acknowledges that the late payment by
Tenant of any monthly installment of Base Rent or additional monthly rent
will cause Landlord to incur costs and expenses, the exact amount of which is
extremely difficult and impractical to fix. Such costs and expenses will
include administration and collection costs and processing and accounting
expenses. Therefore, if any monthly installment of Base Rent or Additional
Monthly Rent is not received by Landlord within five (5) days after such
installment is due, Tenant shall immediately pay to Landlord a late charge
equal to five percent (5%) of such delinquent installment. Landlord and
Tenant agree that such late charge represents a reasonable estimate of such
costs and expenses and is fair reimbursement to Landlord. In no event shall
such late charge be deemed to grant to Tenant a grace period or extension of
time within which to pay any sum otherwise due or prevent Landlord from
exercising any right or enforcing any remedy available to Landlord upon
Tenant's failure to pay each installment of rent due under this Lease when
due, including the right to terminate this Lease and recover all damages from
Tenant. All amounts of money payable by Tenant to Landlord hereunder, if not
paid when due, shall bear interest from the due date (and disregarding the
five (5) day period applicable to late charges) until paid at the lower of
the highest rate permitted by law and two percent (2%) over the rate
designated in the
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Wall Street Journal as the Prime Rate at the time such amounts first become
due, adjusted monthly ("INTEREST RATE"), and Tenant shall pay such interest
to Landlord on written demand in addition to the late charge, which late
charge (as contrasted with interest) will not be due unless Tenant is late in
making such payment by more than five (5) days.
3.5 OTHER TAXES PAYABLE BY TENANT. Tenant shall reimburse Landlord
upon written demand for all taxes, assessments, excises, levies, fees and
charges, including all payments related to the cost of providing facilities
or services, whether or not now customary or within the contemplation of
Landlord and Tenant, that are payable by Landlord and levied, assessed,
charged, confirmed or imposed by any public or government authority upon, or
measured by, or reasonably attributable to (a) the cost or value of Tenant's
furniture, trade fixtures, equipment and other personal property located in
the Premises or the cost or value of any improvements made in or to the
Premises by or for Tenant, regardless of whether title to such improvements
is vested in Tenant or Landlord, (b) any rent payable under this Lease,
including any gross income tax or excise tax levied by any public or
government authority with respect to the receipt of any such rent so long as
such tax is a tax on rent, (c) the possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy by Tenant of
the Premises, or (d) this transaction or any document to which Tenant is a
party creating or transferring an interest or an estate in the Premises. Such
taxes, assessments, excises, levies, fees and charges shall not include net
income (measured by the income of Landlord from all sources or from sources
other than solely rent) or franchise taxes of Landlord, unless levied or
assessed against Landlord in whole or in part in lieu of, as a substitute
for, or as an addition to any such taxes, assessments, excises, levies, fees
and charges. All taxes, assessments, excises, levies, fees and charges
payable by Tenant under this SECTION 3.5 shall be deemed to be, and shall be
paid as, additional rent.
3.6 CERTAIN DEFINITIONS. As used in this Lease, certain words are
defined as follows:
(a) "CAM EXPENSES" shall mean all costs and expenses paid or
incurred by Landlord in connection with the ownership, management, operation,
maintenance or repair of the Premises, the Building and the Project or
providing services in accordance with this Lease, including but not limited
to the following, to the extent that each relates to the ownership,
management, operation, maintenance and repair of the Premises, the Building
and the Project; permit and inspection fees; electricity, gas, fuel, steam,
heat, light, power, water, sewer and other utilities; management fees equal
to three percent (3%) of net revenues (net revenues being gross revenues less
(a) the management fee and (b) that portion of amortized Capital Costs
attributable to the year in question) attributable to the Building and
related expenses; security, guard (although Landlord shall be under no
obligation to provide security or guard services), extermination, water
treatment, garbage and waste disposal, rubbish removal, janitorial services,
plumbing and other services; maintenance of the fire suppression systems;
landscape maintenance; supplies, tools, materials and equipment; accounting
and other professional fees and expenses; painting the exterior of the
Project; maintaining and repairing the exterior walls and roof membrane, the
parking and loading areas, the sidewalks, landscaping and common areas, and
the other parts of the Project; costs and expenses required by or resulting
from compliance with any laws, ordinances, rules, regulations or orders
applicable to the Project; Capital Costs; annual interest on any portion of
unpaid Capital Costs which are amortized, as provided below, at an interest
rate equal to the rate specified in SECTION 3.4; and costs and expenses of
contesting by appropriate proceedings any matter concerning managing,
operating, maintaining or repairing the Project, or the validity or
applicability of any law, ordinance, rule,
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regulation or order relating to the Project, or the amount or validity of any
Property Taxes. CAM Expenses shall not include Property Taxes, Insurance
Costs or charges payable by Tenant pursuant to SECTION 3.5 hereof,
depreciation on the Project; the cost of Landlord's work undertaken by
Landlord pursuant to EXHIBIT B; costs of tenants' improvements, real estate
brokers' commissions, interest or principal on debt of Landlord; or
restoration work necessitated by fire or other casualty damage to the extent
of net insurance proceeds received by Landlord with respect thereto; interest
payments payable by Landlord to Tenant pursuant to SECTION 6.1(b);or the
cost of maintaining and repairing (except for damage by casualty) the roof
(other than the roof membrane), the foundation or structural portions of the
Building. Landlord shall include in CAM Expenses for any particular year only
that portion of Capital Costs (other than Capital Costs which are incurred as
a result of Tenant's activities in the Premises) which are properly allocable
to such year in accordance with an amortization schedule therefor permitted
under general accepted accounting principles.
(b) "PROPERTY TAXES" shall mean all taxes, assessments, excises,
levies, fees and charges (and any tax, assessment, excise, levy, fee or
charge levied wholly or partly in lieu thereof or as a substitute therefor or
as an addition thereto) of every kind and description, general or special,
ordinary or extraordinary, foreseen or unforeseen, secured or unsecured,
whether or not now customary or within the contemplation of Landlord and
Tenant, that are levied, assessed, charged, confirmed or imposed by any
public or government authority on or against, or otherwise with respect to,
the Project or any part thereof or any personal property used in connection
with the Project. Property Taxes shall include any gross receipts tax but
shall not include net income (measured by the income of Landlord from all
sources or from sources other than solely rent) or franchise taxes of
Landlord, unless levied or assessed against Landlord in whole or in part in
lieu of, as a substitute for, or as an addition to any Property Taxes.
Property Taxes shall not include charges payable by Tenant pursuant to
SECTION 3.5 hereof. To the extent all or any of the Property Taxes are
assessed collectively on the Project, Landlord shall allocate the Property
Taxes in a fair a reasonable manner to the Building.
(c) "INSURANCE COSTS" shall mean all premiums and other charges for
all property, earthquake, flood, loss of rental income, business
interruption, liability and other insurance relating to the Project carried
by Landlord.
(d) "CAPITAL COSTS" refers to costs relating to the Premises or the
Project which are required to be capitalized, rather than expensed, in
accordance with generally accepted accounting principles.
(e) "NEW BUILDING LEASE" means the lease being entered into
concurrently herewith between Landlord and Tenant with respect to that
portion of the Project as shown on EXHIBIT A-2 and marked "DEVELOPMENT SITE"
or "PARCEL II," also referred to herein as the "NEW BUILDING". No Capital
Costs or other expenses incurred by Landlord in creating the Development Site
or constructing the planned improvements thereon shall be included within CAM
Expenses and, beginning with the date hereof, CAM Expenses, Property Taxes
and Insurance Costs shall be fairly allocated by Landlord between the
Development Site, for which Tenant shall have no responsibility except as
provided in the New Building Lease, and the balance of the Project (other
than the Development Site), for which Tenant will continue to have full
responsibility as provided above. However, to the extent Landlord provides
services or incurs costs included within the categories of CAM Expenses
and/or Insurance Costs or incurs Property Taxes that pertain both to the
Development Site and to the Premises, such costs shall be allocated by
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Landlord to the Premises and the Development Site and included in CAM
Expenses, Insurance Costs and Property Taxes allocable to the Premises in a
fair manner.
3.7 RENT PAYMENT ADDRESS. Tenant shall pay all Base Rent and
additional monthly rent under SECTION 3.1 hereof to Landlord, in advance, on
or before the first day of each and every calendar month during the term of
this Lease. Tenant shall pay all rent to Landlord without notice, demand,
deduction or offset, in lawful money of the United States of America, at the
address for the payment of rent specified in the Basic Lease Information, or
to such other person or at such other place as Landlord may from time to time
designate in writing.
ARTICLE 4
USE OF THE PREMISES
4.l PERMITTED USE. Tenant shall use the Premises only for the
Permitted Use of the Premises specified in the Basic Lease Information and
for the following uses which may be located be outside of the Building, in
locations approved by Landlord and with such fencing, berming, screening or
other protective measures that Landlord may require: (a) to build and use a
chemical storage area; (b) to use and maintain tanks for liquid nitrogen and
liquid carbon dioxide; (c) to use and maintain equipment for the
recirculation of water; (d) to use and maintain HVAC equipment for the clean
room being built by Tenant; (e) to use and maintain charging stations as well
as storage for forklifts; (f) to use and maintain an air compressor and its
attached piping; and (g) to use and maintain piping and electrical lines to
link the Building and the New Building. Landlord may require the removal of
any alterations to the Premises made by Tenant to accommodate such Permitted
Uses pursuant to ARTICLE 7, below. Tenant shall not do or permit to be done
in, on or about the Premises, nor bring or keep or permit to be brought or
kept therein, anything which is prohibited by or will in any way conflict
with any law, ordinance, rule, regulation or order now in force or which may
hereafter be enacted, or which is prohibited by any insurance policy carried
by Landlord for the Project, or will in any way increase the existing rate
of, or disallow any fire rating or sprinkler credit, or cause a cancellation
of, or reduce the coverage of any insurance for the Project. If Tenant causes
any increase in the premium for any insurance covering the Project carried by
Landlord, Tenant shall pay to Landlord, on written demand as Additional Rent,
the entire amount of such increase. Tenant shall not do or permit anything to
be done in or about the Premises which will in any way obstruct or interfere
with the rights of Landlord or other tenants of the Project, or injure or
annoy them. Tenant shall not use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable activity, nor shall Tenant
cause, maintain or permit any nuisance in, on or about the Premises or commit
or suffer to be committed any waste in, on or about the Premises. Tenant
shall not store any materials, equipment or vehicles outside the Premises
(except during the construction of the New Building and until Tenant occupies
the New Building and commences business, but in no event later than August
31,2001, and in a manner that minimizes the duration and any objectionable
appearance of any such storage) and agrees that no washing of any type
(including washing vehicles) shall take place in or outside the Premises.
Tenant shall not receive, store or otherwise handle any product or material
that is explosive or highly inflammable except in the ordinary course of
Tenant's business and in conformity with law and any requirements of
insurance policies covering the Project. Tenant shall not install any signs
on the Premises except as permitted in the Work Letter Agreement and SECTION
15.21 hereof. Tenant shall, at Tenant's expense, remove all such signs prior
to or upon termination of this Lease, repair any damage
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caused by the installation or removal of such signs, and restore the Premises
to the condition that existed before installation of such signs.
4.2 ENVIRONMENTAL DEFINITIONS. As used in this Lease, "HAZARDOUS
MATERIAL" shall mean any substance that is (a) defined under any
Environmental Law as a hazardous substance, hazardous waste, hazardous
material, pollutant or contaminant, (b) a petroleum hydrocarbon, including
crude oil or any fraction or mixture thereof, (c) hazardous, toxic,
corrosive, flammable, explosive, infectious, radioactive, carcinogenic or a
reproductive toxicant, or (d) otherwise regulated pursuant to any
Environmental Law. As used in this Lease, "ENVIRONMENTAL LAW" shall mean all
federal, state and local laws, statutes, ordinances, regulations, rules,
judicial and administrative orders and decrees, permits, licenses, approvals,
authorizations and similar requirements of all federal, state and local
governmental agencies or other governmental authorities pertaining to the
protection of human health and safety or the environment, now existing or
later adopted during the term of this Lease. As used in this Lease,
"PERMITTED ACTIVITIES" shall mean the lawful activities of Tenant that are
part of the ordinary course of Tenant's business in accordance with the
Permitted Use specified in the Basic Lease Information. As used in this
Lease, "PERMITTED MATERIALS" shall mean the materials that do not constitute
Hazardous Materials and which are otherwise handled by Tenant in the ordinary
course of conducting Permitted Activities.
4.3 ENVIRONMENTAL REQUIREMENTS. Tenant hereby agrees that: (a)
Tenant shall conduct, or permit to be conducted, on the Premises only
activities which are Permitted Activities; (b) Tenant shall not use, store or
otherwise handle, or permit any use, storage or other handling of, any
Hazardous Material; (c) Tenant shall obtain and maintain in effect all
permits and licenses required pursuant to any Environmental Law for Tenant's
activities on the Premises, and Tenant shall at all times comply with all
applicable Environmental Laws; (d) Tenant shall not engage in the storage,
treatment or disposal on or about the Premises of any Hazardous Material
except for any temporary accumulation of waste generated in the course of
Permitted Activities; (e) Tenant shall not install any aboveground or
underground storage tank or any subsurface lines for the storage or transfer
of any Hazardous Material; (f) Tenant shall not cause or permit to occur any
release of any Hazardous Material or any condition of pollution or nuisance
on or about the Premises, whether affecting surface water or groundwater,
air, the land or the subsurface environment; (g) Tenant shall promptly remove
from the Premises any Hazardous Material introduced, or permitted to be
introduced, onto the Premises by Tenant; and (h) if any release of a
Hazardous Material to the environment, or any condition of pollution or
nuisance, occurs on or about or beneath the Premises as a result of any act
or omission of Tenant or its agents, officers, employees, contractors,
invitees or licensees, Tenant shall, at Tenant's sole cost and expense,
promptly undertake all remedial measures required to clean up and xxxxx or
otherwise respond to the release, pollution or nuisance in accordance with
all applicable Environmental Laws. Landlord and Landlord's representatives
shall have the right, but not the obligation, to enter the Premises at any
reasonable time for the purpose of inspecting the Premises in order to
determine Tenant's compliance with the requirements of this Lease and
applicable Environmental Law. If Landlord gives written notice to Tenant that
Xxxxxx's use, storage or handling of any Hazardous Material on the Premises
may not comply with this Lease or applicable Environmental Law, Tenant shall
correct any such violation within five (5) days after Xxxxxx's receipt of
such notice from Landlord, but nothing herein shall be construed to allow
Tenant to use, store or handle Hazardous Materials in the Premises. Tenant
shall indemnify and defend Landlord against and hold Landlord harmless from
all claims, demands, actions, judgments, liabilities, costs, expenses,
losses, damages, penalties, fines and obligations
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of any nature (including reasonable attorneys' fees and disbursements
incurred in the investigation, defense or settlement of claims) that Landlord
may incur as a result of, or in connection with, claims arising from the
presence, use, storage, transportation, treatment, disposal, release or other
handling, on or about or beneath the Premises, of any Hazardous Material
introduced or permitted on or about or beneath the Premises by any act or
omission of Tenant or its agents, officers, employees, contractors, invitees
or licensees. Tenant shall not be responsible nor shall Tenant be liable for
the existence of Hazardous Materials on the Premises on the Commencement
Date. The liability of Tenant under this SECTION 4.3 shall survive the
termination of this Lease with respect to acts or omissions that occur before
such termination.
Notwithstanding the foregoing, but without limiting Tenant's
liability under this SECTION 4.3, Tenant shall be entitled to store for use
and use at the Premises supplies and equipment employed for general office
use and the Hazardous Materials listed on the Hazardous Materials Plan dated
December 17, 1999 provided to Landlord prior to the date hereof and initialed
by the parties. All of such Hazardous Materials shall be purchased, used,
stored and disposed of in accordance with applicable Environmental Laws at
Tenant's sole cost. Tenant shall notify Landlord of the kind and amounts of
the Hazardous Materials used if they differ from the materials listed in the
Hazardous Materials Plan. If Tenant wishes to store for use and use a
Hazardous Material that is not listed in the Hazardous Material Plan,
Landlord shall have the right to disapprove of the use of such Hazardous
Material; provided, that Landlord will not unreasonably withhold its approval
if the Hazardous Material proposed to be used is similar in kind, toxicity
and function to a Hazardous Material listed in the Hazardous Materials Plan
provided to Landlord. Tenant may use, store or handle small amounts of office
supplies for the photocopy machine, white-out and the like, on or about the
Premises.
4.4 COMPLIANCE WITH LAW. Tenant shall, at Tenant's sole cost and
expense, promptly comply with all laws, ordinances, rules, regulations,
orders and other requirements of any government or public authority now in
force or which may hereafter be in force, with all requirements of any board
of fire underwriters or other similar body now or hereafter constituted, and
with all directions and certificates of occupancy issued pursuant to any law
by any governmental agency or officer, insofar as any thereof relate to or
are required by the condition, use or occupancy of the Premises or the
operation, use or maintenance of any personal property, trade fixtures,
machinery, equipment or improvements in the Premises, but Tenant shall not be
required to make structural changes unless structural changes are related to
or required by Xxxxxx's acts or use of the Premises or by improvements made
by or for Tenant.
4.5 RULES AND REGULATIONS. Tenant shall faithfully observe and fully
comply with all rules and regulations (the "RULES AND REGULATIONS") from time
to time made in writing by Landlord for the safety, care, use and cleanliness
of the Project or the common areas of the Project and the preservation of
good order therein. If there is any conflict, this Lease shall prevail over
the Rules and Regulations.
4.6 ENTRY BY LANDLORD. Landlord shall have the right to enter the
Premises at any time to (a) inspect the Premises, (b) exhibit the Premises to
prospective purchasers, lenders or tenants, (c) determine whether Tenant is
performing all of Tenant's obligations, (d) supply any service to be provided
by Landlord, (e) post notices of nonresponsibility, and (f) make any repairs
to the Premises, or make any repairs to any adjoining space or utility
services, or make any repairs, alterations or improvements to any other
portion of the Project, provided all such work shall be done as promptly as
reasonably practicable and so as to cause as little interference to Tenant as
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reasonably practicable. Tenant waives all claims for damages for any injury
or inconvenience to or interference with Xxxxxx's business, any loss of
occupancy or quiet enjoyment of the Premises or any other loss occasioned by
such entry if such entry complies with the provisions of this Lease.
ARTICLE 5
UTILITIES AND SERVICES
5.1 TENANT'S RESPONSIBILITIES. Tenant shall contract and pay for the
maintenance, operation and repair of all of the Premises and for the
provision of all services and utilities which Tenant desires in the Premises,
including, but not limited to, heating, ventilation, and air conditioning
("HVAC"), electricity, water, telephone, lights and window washing. The
standard of maintenance, operation and repair which Tenant shall meet shall
be the standard which a prudent, institutional owner of real estate would
require for premises similar to the Premises, in Landlord's reasonable
judgment. Landlord may require Tenant to enter into maintenance contracts
with service providers to maintain and repair all building systems; each of
said contracts and the providers shall be subject to Landlord's approval,
although Landlord shall have no responsibility or liability with respect to
the performance of such service providers. Tenant shall pay in arrears,
directly to the appropriate supplier before delinquency, for all telephone
services supplied to the Premises as well as any other service or utility,
together with all taxes, assessments, surcharges and similar expenses
relating to such utilities and services. If any such utilities or services
are jointly metered with the Premises and another part of the Project,
Landlord shall determine Tenant's share of the cost of such jointly metered
utilities and services based on Landlord's estimate of usage, and Tenant
shall pay as Additional Rent Tenant's share of the cost of such jointly
metered utilities and services to Landlord within ten (10) days after receipt
of Landlord's written statement for such cost. Landlord shall not be in
default under this Lease or be liable for any damage or loss directly or
indirectly resulting from, nor shall the rent be abated or a constructive or
other eviction be deemed to have occurred by reason of, any interruption of
any such utilities and services, or any limitation, curtailment, rationing or
restriction on use of water, electricity, gas or any resource or form of
energy or other service serving the Premises or the Project.
5.2 LANDLORD'S RESPONSIBILITIES. Landlord shall provide access for
all utilities and services to the Building.
ARTICLE 6
MAINTENANCE AND REPAIRS
6.1 OBLIGATIONS OF LANDLORD.
(a) Landlord shall maintain, and keep in good repair and operating
condition, reasonable wear and tear excepted, the structural portion of the
roof( (excluding the membrane), the structural components of the Building,
the foundation and landscaping, only. All other maintenance and repair of the
Building and the Premises shall be Tenant's responsibility pursuant to
SECTION 5.1. Tenant shall give Landlord written notice of the need for any
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maintenance or repair for which Landlord is responsible, after which Landlord
shall have a reasonable opportunity to perform the maintenance or make the
repair, and Landlord shall not be liable for any failure to do so unless such
failure continues for an unreasonable time after Xxxxxx gives such written
notice to Landlord. Landlord's liability with respect to any maintenance or
repair for which Landlord is responsible shall be limited to the cost of the
maintenance or repair. Any damage to any part of the Project for which
Landlord is responsible that is caused by Tenant or any agent, officer,
employee, contractor, licensee or invitee of Tenant shall be repaired by
Landlord at Tenant's expense and Tenant shall pay to Landlord, upon billing
by Landlord, as Additional Rent, the cost of such repairs incurred by
Landlord to the extent such repairs are not covered by insurance carried by
Landlord pursuant to this Lease.
(b) TENANT'S RIGHT TO MAKE REPAIRS. Notwithstanding paragraph (a)
above, if Xxxxxx provides written notice to Landlord of Landlord's failure to
repair or replace any portion of the Building or the Premises which Landlord
is required to repair or replace hereunder and Landlord fails to repair
within a reasonable period of time, given the circumstances, after the
receipt of such notice, but in any event not later than twenty-one (21) days
after receipt of such notice (plus such additional time as is reasonably
required under the circumstances, assuming that Landlord began work within
such twenty-one (21) day period), then Tenant may proceed to make the repair
or replacement upon delivery of an additional ten (10) business days' notice
to Landlord specifying that Tenant is doing so if such repair or replacement
was not made by Landlord within such ten (10) business day period (or
commenced to be made and thereafter pursued diligently to completion). In the
event Tenant makes the repair or replacement, and such work will affect the
structure of the Building and/or the Building systems, Tenant shall use only
those contractors used by Landlord in the Building for work on such structure
of the Building or Building systems unless such contractors are unwilling or
unable to perform, or timely and competitively perform, such work, in which
event Tenant may utilize the services of any other qualified contractor which
normally and regularly performs similar work in comparable buildings.
If Tenant makes such a repair or replacement that is otherwise
Landlord's responsibility pursuant to SECTION 6.1(a) (excluding
landscaping), following Xxxxxxxx's refusal to do so, Tenant shall be entitled
to prompt reimbursement by Landlord of Tenant's reasonable costs and expenses
in doing so plus interest thereon at the Interest Rate as defined in SECTION
3.4 of the Lease. Furthermore, if Landlord does not deliver a detailed
written objection to Tenant within thirty (30) days after receipt of an
invoice by Tenant of its costs of taking action which Xxxxxx claims should
have been taken by Landlord, and if such invoice from Tenant sets forth a
reasonably particularized breakdown of its costs and expenses in connection
with taking such action on behalf of Landlord, then Tenant shall be entitled
to deduct, from rent payable by Tenant under the Lease, the amount set forth
in such invoice. If, however, Xxxxxxxx delivers to Tenant, within thirty (30)
days after receipt of Tenant's invoice, a written objection to the payment of
such invoice, setting forth with reasonable particularity Landlord's reasons
for its claim that such action did not have to be taken by Landlord pursuant
to the terms of the Lease or that the charges are excessive (in which case
Landlord shall pay the amount it contends would not have been excessive),
then Tenant shall not then be entitled to such deduction from rent, but as
Xxxxxx's sole remedy, Tenant may proceed to claim a default by Landlord.
Notwithstanding the foregoing, Tenant shall have the right to make
repairs or replacements which Landlord is otherwise required to make
hereunder, and to recover up to $25,000 of the cost thereof as provided in
the preceding paragraph, without written notice to Landlord, if each of the
following conditions is met: (i) such repairs or replacements must be
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made immediately in order to avoid imminent danger to life or significant
property damage, (ii) the need for such repairs or replacements became known
to Tenant in such a time frame that written notice to Landlord is not
practical and (iii) Tenant gives such notice to Landlord as is practical in
the circumstances.
6.2 OBLIGATIONS OF TENANT. Tenant shall, at all times during the
term of this Lease and at Tenant's sole cost and expense, maintain and repair
the Premises and every part thereof (except only the parts for which Landlord
is expressly made responsible under this Lease) and all equipment, trade
fixtures and improvements therein and keep all of the foregoing clean and in
good order and operating condition, ordinary wear and tear excepted. Tenant
shall not damage the Premises or disturb the integrity and support provided
by the floor and ceiling slabs and each wall within the Premises. Landlord
shall, at Xxxxxx's expense (to the extent such repairs are not covered by
insurance carried by Landlord pursuant to this Lease), repair any damage to
the Premises caused by Tenant or any agent, officer, employee, contractor,
licensee or invitee of Tenant. Tenant shall take good care of the Premises
and keep the Premises free from dirt, rubbish, waste and debris at all times.
Tenant shall not overload the floors in the Premises or exceed the
load-bearing capacity of the floors in the Premises. Tenant hereby waives the
benefit of California Civil Code SECTIONS 1932, 1941 AND 1942 and of any
similar law, statute or ordinance now or hereafter in effect.
6.3 TENANT'S OBLIGATIONS AT THE END OF THE TERM.
(a) Tenant shall, at the end of the Term, surrender to Landlord the
Premises and all alterations, additions and improvements therein or thereto
existing on the date hereof in the same condition as when received, ordinary
wear and tear excepted. In the event of any damage to the Premises on account
of the removal of any movable furniture, equipment, trade fixtures,
computers, office machines or other personal property, as permitted by
SECTION 7.2, Tenant shall repair such damage at its expense prior to the end
of the Term.
(b) SECTION 7.2 contains the agreement of Landlord and Tenant with
respect to the removal of Alterations to the Premises constructed after the
date hereof.
ARTICLE 7
ALTERATION OF THE PREMISES
7.1 NO ALTERATIONS BY TENANT. Tenant shall not make any alterations,
additions, deletions or improvements in or to the Premises or any part
thereof (collectively, "ALTERATIONS"), including attaching any trade fixtures
or equipment thereto, without Xxxxxxxx's prior written consent which shall
not be unreasonably withheld. However, Tenant may make Alterations (other
than those involving the removal or deletion of improvements) which comply
with the Design Criteria and without Landlord's consent if the total cost of
each Alteration does not exceed twenty five thousand dollars ($25,000.00).
Without Landlord's consent, in no event shall the total cost of Alterations
in any calendar year exceed one hundred thousand dollars ($100,000.00) or
affect Building systems, the structure or roof of the Building or the
exterior aesthetics of the Building. All Alterations in or to the Premises
for which Landlord's consent is required (except improvements made by
Landlord pursuant to EXHIBIT B, if any) shall be made by Tenant at Tenant's
sole cost and expense as follows:
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(a) Tenant shall submit to Landlord, for Landlord's written
approval, complete plans and specifications for all Alterations to be done by
Tenant. Such plans and specifications shall be prepared by responsible
licensed architect(s) and engineer(s), shall comply with all applicable
codes, laws, ordinances, rules and regulations, shall not affect the
structure or the structural integrity of the Building or any systems,
components or elements of the Building or Project, shall demonstrate that the
exterior appearance of the Building will not be affected by such Alterations,
shall be in a form sufficient to secure the approval of all government
authorities with jurisdiction over the Project, shall not interfere with any
other tenant's normal and customary business office operations and shall not
affect the aesthetics of the exterior of the Building (individually and
collectively, the "DESIGN CRITERIA").
(b) Tenant shall obtain all required permits for the Alterations.
Tenant shall engage responsible licensed contractor(s) and subcontractor(s)
to perform all work. The contractor(s) shall be subject to Landlord's
consent, which shall not be withheld unreasonably. Tenant shall perform all
work in accordance with the plans and specifications approved by Landlord, in
a good and workmanlike manner, in full compliance with all applicable laws,
codes, ordinances, rules and regulations, and free and clear of any
mechanics' liens and in full compliance with the construction rules and
regulations adopted by Landlord from time to time. Tenant shall pay for all
work (including the cost of all utilities, permits, fees, taxes, and property
and liability insurance premiums in connection therewith) required to make
the Alterations. Tenant shall pay to Landlord all direct costs, and shall
reimburse Landlord for all expenses, incurred by Landlord in connection with
the review, approval and monitoring of any alterations made by Tenant. In
addition, Tenant shall pay Landlord a construction management fee of four
(4%) percent of the hard cost of the Alterations, additions and/or
improvements, such fee to be paid in installments as the work progresses.
Under no circumstances shall Landlord be liable to Tenant for any damage,
loss, cost or expense incurred by Tenant on account of design of any work,
construction of any work, or delay in completion of any work. All work of the
Alterations, regardless of whether Xxxxxxxx's consent is required, shall be
scheduled through and be subject to the reasonable monitoring by Landlord and
shall be performed in accordance with any reasonable conditions or
regulations imposed by Landlord. All work of Alterations shall be in
compliance with the Union Requirement described in SECTION 13 of the Work
Letter Agreement.
(c) Tenant shall give written notice to Landlord of the date on
which the work of any Alterations will be commenced at least ten (10)
business days prior to such date. Tenant shall keep the Premises and the
Project free from mechanics', materialmen's and all other liens arising out
of any work performed, labor supplied, materials furnished or other
obligations incurred by Tenant. Tenant shall promptly and fully pay and
discharge all claims on which any such lien could be based. Tenant shall have
the right to contest the amount or validity of any such lien, provided Xxxxxx
gives prior written notice of such contest to Landlord, prosecutes such
contest by appropriate proceedings in good faith and with diligence, and,
upon request by Xxxxxxxx, furnishes such bond as may be required by law or
such security as Landlord may require to protect the Premises and the Project
from such lien. Landlord shall have the right to post and keep posted on the
Premises any notices that may be provided by law or which Landlord may deem
to be proper for the protection of Landlord, the Premises and the Project
from such liens, and to take any other action Landlord deems necessary to
remove or discharge liens or encumbrances at the expense of Tenant.
(d) In connection with any work performed by Xxxxxx in accordance
with this SECTION 7.1, upon completion of any such work, at Landlord's
request, Xxxxxx agrees to prepare
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and Landlord shall execute if factually correct, and Tenant shall cause a
Notice of Completion to be recorded in the County Recorder's Office in
accordance with SECTION 3093 of the Civil Code of the State of California or
any successor statute. On completion of the work, Tenant shall deliver to
Landlord both a hard copy and if available, copy on CAD Diskette of the "as
built" plan and specifications (including working drawings) for all
Alterations. Promptly following the completion of any Alterations, Tenant
shall deliver to Landlord a copy of any signed-off permits, inspection cards
or other documentation, if any is required and available given the nature of
the Alteration, evidencing governmental approval of completion of the work.
No monitoring or supervision by Landlord of Alterations shall constitute
Landlord's approval of the work so performed.
7.2 LANDLORD'S PROPERTY. All Alterations, and Tenant Improvements
constructed pursuant to EXHIBIT B, whether temporary or permanent in
character, made in or to the Premises by Landlord or Tenant shall become part
of the Project and Landlord's property, except as provided below, without
compensation to Tenant. As to Alterations, upon termination of this Lease,
Landlord shall have the right, at Landlord's option, by giving written notice
to Tenant at any time before or within sixty (60) days after such
termination, to remove specific Alterations identified in such notice, repair
all damage caused by any such removal, and restore the Premises to the
condition .in which the Premises existed before such Alterations were made.
As to the Tenant Improvements, Landlord, at the time of its approval of
Tenant Improvements pursuant to EXHIBIT B, shall have the option to require
Tenant, in writing, to remove such Tenant Improvements upon termination of
this Lease. Such option shall not apply to the following Tenant Improvements
made pursuant to EXHIBIT B a "clean room" approximately fifteen thousand
(15,000) square feet in size, standard central electric wiring, standard
interior walls and partitions erected to separate the general office and
light manufacturing facilities located in the Building and improvements made
that are customary for a general office use. In the case of any removal
required by this SECTION 7.2. Tenant shall pay to Landlord, upon billing by
Landlord, the cost of such removal, repair and restoration (including a
reasonable charge for Landlord's overhead and profit) of Alterations and/or
Tenant Improvements with respect to which Landlord may require and has
required removal. All movable furniture, equipment, trade fixtures,
computers, office machines and other personal property shall remain the
property of Tenant. Upon termination of this Lease, Tenant shall, at Tenant's
expense, remove all such movable furniture, equipment, trade fixtures,
computers, office machines and other personal property from the Project and
repair all damage caused by any such removal. Termination of this Lease shall
not affect the obligations of Tenant pursuant to this SECTION 7.2 to be
performed after such termination.
Tenant acknowledges that except as described in EXHIBIT D hereto,
there are no trade fixtures in the Premises and Tenant does not contemplate
installing any in the Premises. Tenant may install trade fixtures from time
to time upon compliance with this ARTICLE 7 and upon receiving Xxxxxxxx's
written consent, which Xxxxxxxx agrees it will not withhold unreasonably.
Tenant may update the description in EXHIBIT D with similar items, otherwise,
Landlord's consent is required.
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ARTICLE 8
INDEMNIFICATION AND INSURANCE
8.1 DAMAGE OR INJURY. Landlord shall not be liable to Tenant, and
Tenant hereby waives all claims against Landlord, for any damage to or loss
or theft of any property or for any bodily or personal injury, illness or
death of any person in, on or about the Premises, the Building or the Project
arising at any time and from any cause whatsoever, except to the extent
caused by the gross negligence or willful misconduct of Landlord. Tenant
shall indemnify and defend Landlord against and hold Landlord harmless from
all claims, demands, liabilities, damages, losses, costs and expenses,
including reasonable attorneys' fees and disbursements, arising from or
related to (i) any use or occupancy of the Premises or any condition of the
Premises, (ii) any default in the performance of Tenant's obligations under
this Lease, (iii) any damage to any property (including property of employees
and invitees of Tenant), or (iv) any bodily or personal injury, illness or
death of any person (including employees and invitees of Tenant), in each
case which occurs in, on or about the Premises or any part thereof arising at
any time and from any cause whatsoever (except to the extent caused by the
gross negligence or willful misconduct of Landlord), or which occurs in, on
or about any other part of the Project to the extent caused by any act or
omission of Tenant or its agents, officers, employees, contractors, invitees
or licensees. This SECTION 8.1 shall survive the termination of this Lease
with respect to any damage, bodily or personal injury, illness or death
occurring prior to such termination.
8.2 INSURANCE COVERAGES AND AMOUNTS. Tenant shall, at all times
during the term of this Lease and at Tenant's sole cost and expense, obtain
and keep in force the insurance coverages and amounts set forth in this
SECTION 8.2. Tenant shall maintain commercial general liability insurance,
including contractual liability for the obligations of Tenant in this Lease,
broad form property damage liability, fire, legal liability, premises and
completed operations, and medical payments, with limits not less than one
million dollars ($1,000,000) per occurrence and two million dollars
($2,000,000) in the aggregate, insuring against claims for bodily injury,
personal injury and property damage arising from the use, occupancy or
maintenance of the Premises and the Project. The policy shall contain an
exception to any pollution exclusion which insures damage or injury arising
out of heat, smoke or fumes from a hostile fire. Tenant shall maintain
business auto liability insurance with limits not less than one million
dollars ($1,000,000) per accident covering owned, hired and non-owned
vehicles used by Tenant. Tenant shall maintain umbrella excess liability
insurance on a following form basis in excess of the required commercial
general liability, business auto and employers liability insurance with
limits not less than five million dollars ($5.000,000) per occurrence and
aggregate. Tenant shall carry workers' compensation insurance for all of its
employees in statutory limits in the state in which the Project is located
and employers' liability insurance which affords not less than five hundred
thousand dollars ($500,000) for each coverage. Tenant shall maintain all risk
property insurance for all personal property of Tenant and improvements,
trade fixtures and equipment constructed or installed by Tenant or Landlord
(including Tenant Improvements and subsequent Alterations) in the Premises in
an amount not less than the full replacement cost, which shall include
business income and extra expense coverage with limits not less than one
hundred percent (100%) of rent for a period of twelve (12) months. If
required by Landlord, Tenant shall maintain boiler and machinery insurance
against loss or damage from an accident from the equipment in the Premises in
an amount determined by Landlord and plate glass insurance
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coverage against breakage of plate glass in the Premises. Any deductibles
selected by Tenant shall be the sole responsibility of Tenant.
8.3 INSURANCE REQUIREMENTS. All insurance and all renewals thereof
shall be issued by companies with a rating of at least "A-" "VIII" or better
in the current edition of Best's Insurance Reports and be licensed to do and
doing business in the state in which the Project is located. Each policy
shall expressly provide that the policy shall not be canceled or materially
altered without thirty (30) days' prior written notice to Landlord and shall
remain in effect notwithstanding any such cancellation or alteration until
such notice shall have been given to Landlord and such period of thirty (30)
days shall have expired. All liability insurance (except employers'
liability) shall name Landlord and any other parties designated by Landlord
(including any investment manager, asset manager or property manager) as an
additional insured, shall be primary and noncontributing with any insurance
which may be carried by Landlord, shall afford coverage for all claims based
on any act, omission, event or condition that occurred or arose (or the onset
of which occurred or arose) during the policy period, and shall expressly
provide that Landlord, although named as an insured, shall nevertheless be
entitled to recover under the policy for any loss, injury or damage to
Landlord. All property insurance shall name Landlord as loss payee as
respects Landlord's interest in any improvements and betterments. Tenant
shall deliver certificates of insurance, acceptable to Landlord, to Landlord
at least ten (I0) days before the Commencement Date and at least ten (I0)
days before expiration of each policy. If Tenant fails to insure or fails to
furnish any such insurance certificate, Landlord shall have the right from
time to time to effect such insurance for the benefit of Tenant or Landlord
or both of them, and Tenant shall pay to Landlord on Written demand, as
additional rent, all premiums paid by Landlord.
8.4 SUBROGATION. Tenant waives on behalf of all insurers under all
policies of property insurance now or hereafter carried by Tenant insuring or
covering the Premises, or any portion or any contents thereof, or any
operations therein, all rights of subrogation which any such insurer might
otherwise, if at all, have to any claims of Tenant against Landlord. Landlord
waives on behalf of all insurers under all policies of property insurance now
or hereafter carried by Landlord insuring or covering the Project, or any
portion or any contents thereof, or any operations therein, all rights of
subrogation which any such insurer might otherwise, if at all, have to any
claims of Landlord against Tenant. Tenant shall procure from each of the
insurers under all policies of property insurance now or hereafter carried by
Tenant insuring or covering the Premises, or any portion or any contents
thereof, or any operations therein, a waiver of all rights of subrogation
which the insurer might otherwise, if at all, have to any claims of Tenant
against Landlord as required by this SECTION 8.4.
8.5 LANDLORD'S FIRE AND CASUALTY INSURANCE. Landlord shall insure
the Building and the Project against loss or damage due to fire and other
casualties covered within the classification of fire and extended coverage,
vandalism coverage and malicious mischief, sprinkler leakage, water damage
and special extended coverage. Such coverage shall be in such amounts, from
such companies, and on such other terms and conditions, as Landlord may from
time to time reasonably determine, provided that such coverage shall (i) be
for full replacement of the Building and the Project in compliance with all
then existing applicable laws, (ii) provide for rent continuation insurance
equal to not less than twelve (12) months' rent; and (iii) be with companies
and have policies meeting the criteria set forth in SECTION 8.3 in this
Lease. No insurance carried by Landlord shall cover Tenant's trade fixtures,
equipment or personal property, any Alterations or Tenant Improvements. At
the sole option of Landlord, such
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insurance coverage may include the risks of earthquakes and/or flood damage
and additional hazards, a rental loss endorsement and one or more loss payee
endorsements in favor of the holders or any mortgages or deeds of trust
encumbering the interest of Landlord in the Building or the Project.
ARTICLE 9
ASSIGNMENT OR SUBLEASE
9.1 PROHIBITION. Tenant shall not directly or indirectly, without
the prior written consent of Landlord (which consent shall not be
unreasonably withheld), assign this Lease or any interest herein or sublease
the Premises or any part thereof, or permit the use or occupancy of the
Premises by any person or entity other than Tenant, except as provided in
SECTION 9.7. Tenant may hypothecate this Lease to an institutional lender
upon prior notice to Landlord and without releasing Tenant of its obligations
herein. In the event Tenant hypothecates this Lease to an institutional
lender pursuant to this SECTION 9.1, Landlord agrees that it will negotiate
in good faith with such lender a commercially reasonable Subordination,
Non-Disturbance and Attornment Agreement which is satisfactory to Landlord;
all costs of such negotiation (including reasonable attorneys' fees) shall be
paid by Tenant. This Lease shall not, nor shall any interest herein, be
assignable as to the interest of Tenant involuntarily or by operation of law
without the prior written consent of Landlord. Subject to SECTION 9.7, for
purposes of this Lease, any of the following transfers on a cumulative basis
shall constitute an assignment of this Lease, of which Tenant shall provide
written notice to Landlord; if Tenant is a corporation, the transfer of more
than forty-nine percent (49%) of the stock of the corporation; if Tenant is a
partnership, the transfer of more than forty-nine percent (49%) of the
capital or profits interest in the partnership; and if Tenant is a trust, the
transfer of more than forty-nine (49%) of the beneficial interest under the
trust. However, if Tenant is a corporation with equity securities registered
under Section 12 of the Securities Exchange Act of 1934, then a transfer of
such securities shall not be deemed an assignment of this Lease for which
Xxxxxxxx's consent is required. Any of the foregoing acts without such prior
written consent of Landlord shall be void and shall, at the option of
Landlord, constitute a default that entitles Landlord to terminate this
Lease. Tenant agrees that the instrument by which any assignment or sublease
to which Landlord consents is accomplished shall expressly provide that the
assignee or subtenant will perform all of the covenants to be performed by
Tenant under this Lease (in the case of a sublease, only insofar as such
covenants relate to the portion of the Premises subject to such sublease) as
and when performance is due after the effective date of the assignment or
sublease and that Landlord will have the right to enforce such covenants
directly against such assignee or subtenant. Any purported assignment or
sublease without an instrument containing the foregoing provisions shall be
void. Tenant shall in all cases remain liable for the performance by any
assignee or subtenant of all such covenants.
9.2 LANDLORD'S CONSENT OR TERMINATION. If Tenant wishes to assign
this Lease or sublease all or any part of the Premises, Tenant shall give
written notice to Landlord identifying the intended assignee or subtenant by
name and address and specifying all of the terms of the intended assignment
or sublease together with a check for two thousand dollars ($2,000) to cover
the attorneys' fees and other costs to be incurred by Landlord in connection
with any such request. Tenant shall simultaneously give Landlord such
additional information concerning the intended assignee or subtenant
(including complete financial statements and a business history)
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and the intended assignment or sublease (including true copies thereof) as
Landlord requests. For a period of thirty (30) days after such written notice
is given by Xxxxxx, Landlord shall have the right, by giving written notice
to Tenant, (a) to consent in writing to the intended assignment or sublease,
(b) in the case of an assignment of this Lease or a sublease in excess of
fifty percent (50%) of the RSF of the Premises or in excess of fifty percent
(50%) of the balance of the term of this Lease, to terminate this Lease,
which termination shall be effective as of the date on which the intended
assignment or sublease would have been effective if Landlord had not
exercised such termination right or (c) to withhold its consent, provided
such consent is not unreasonably withheld. If Landlord fails to notify Tenant
of its election within such thirty (30) day period, Landlord will be deemed
to have consented to the proposed assignment or, when appropriate, the
proposed sublease.
9.3 COMPLETION. If Landlord consents in writing, Tenant may complete
the intended assignment or sublease subject to the following requirements:
(a) the assignment or sublease shall be on the same terms as set forth in the
written notice given by Tenant to Landlord, (b) no assignment or sublease
shall be valid and no assignee or subtenant shall take possession of the
Premises or any part thereof until an executed duplicate original of such
assignment or sublease, in compliance with SECTION 9.1 hereof, has been
delivered to Landlord, (c) no assignee or subtenant shall have a right
further to assign or sublease except in accordance with the provisions
contained in this Lease, including the termination right granted to Landlord,
and (d) fifty percent (50%) of the "EXCESS RENT" (as hereinafter defined)
derived from such assignment or sublease shall be paid to Landlord. Such
excess rent shall be deemed to be, and shall be paid by Tenant to Landlord
as, Additional Rent. Tenant shall pay such excess rent to Landlord
immediately as and when such excess rent becomes due and payable to Tenant.
As used in this SECTION 9.3, "EXCESS RENT" shall mean the amount by which the
total money and other economic consideration to be paid by the assignee or
subtenant as a result of an assignment or sublease, whether denominated rent
or otherwise, exceeds, in the aggregate, the total amount of rent which
Tenant is obligated to pay to Landlord under this Lease (prorated to reflect
the rent allocable to the portion of the Premises subject to such assignment
or sublease and for that portion of the Term hereof covered), less only the
reasonable costs paid by Tenant for additional improvements installed in the
portion of the Premises subject to such assignment or sublease by Tenant at
Tenant's sole cost and expense for the specific assignee or subtenant in
question and reasonable leasing commissions and reasonable attorneys' fees
paid by Tenant in connection with such assignment or sublease, without
deduction for carrying costs due to vacancy or otherwise. Such costs of
additional improvements, leasing commissions and reasonable attorneys' fees
shall be amortized without interest over the term that the excess rent is
payable.
9.4 TENANT NOT RELEASED. No assignment or sublease whatsoever shall
release Tenant from Tenant's obligations and liabilities under this Lease or
alter the primary liability of Tenant to pay all rent and to perform all
obligations to be paid and performed by Xxxxxx. No assignment or sublease
shall amend or modify this Lease in any respect, and every assignment and
sublease shall be subject and subordinate to this Lease. The acceptance of
rent by Landlord from any other person or entity shall not be deemed to be a
waiver by Landlord of any provision of this Lease. Consent to one assignment
or sublease shall not be deemed consent to any subsequent assignment or
sublease. Tenant shall pay to Landlord all direct costs and shall reimburse
Landlord for all expenses incurred by Landlord in connection with any
assignment or sublease requested by Xxxxxx. If any assignee, subtenant or
successor of Tenant defaults in the performance of any obligation to be
performed by Tenant under this Lease. Landlord may proceed directly against
Tenant without the necessity of exhausting remedies against such
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assignee, subtenant or successor. Xxxxxxxx may consent to subsequent
assignments or subleases or amendments or modifications to this Lease with
assignees, subtenants or successors of Xxxxxx, without notifying Tenant or
any successor of Xxxxxx and without obtaining any consent thereto from Tenant
or any successor of Xxxxxx, and such action shall not release Tenant from
liability under this Lease.
9.5 LANDLORD'S CONSENT. If Landlord does not elect to terminate the
Lease, Landlord shall not unreasonably withhold, condition or delay its
consent to any proposed assignment and/or subletting. The parties hereby
agree that the reasons under this Lease and under any applicable law for
Landlord to withhold consent to any proposed assignment or subleasing shall
include, but not be limited to, one or more of the following:
(a) The assignee or sublessee is of a character or reputation or
engaged in a business which is not consistent with the quality of the
Building or the Project;
(b) The assignee or sublessee intends to use the Premises for
purposes which are not permitted under this Lease;
(c) The assignee or sublessee is either a governmental agency or
instrumentality thereof unless Landlord, with respect to the Building, has
leased space to, or approved subleases with, comparable (in terms of use,
security issues, express or implied power of eminent domain, reputation,
character and size of space in the Project) governmental agencies or
instrumentalities thereof; and
(d) The assignee or sublessee is not a party of reasonable financial
worth and/or financial stability in light of the responsibilities to be
undertaken in connection with the assignment or sublease on the date consent
is requested.
9.6 REMEDIES. If Tenant assigns or sublets without Landlord's
consent, such an assignment or subleasing shall be null and void and Landlord
may exercise its rights and remedies under this Lease. If Landlord
unreasonably withholds its consent to a proposed sublease or assignment,
Tenant may seek specific performance of Landlord's obligations. If Landlord
fails to comply with any award for specific performance, then and only then
will Tenant have a right to enforce any other rights and remedies available
to Tenant under this Lease or applicable laws.
9.7 CERTAIN PERMITTED TRANSFERS. Upon at least ten (10) days' prior
notice to Landlord, Tenant shall have the right to assign its interest in
this Lease, or to sublet a portion of the Premises, without Landlord's prior
consent, to (i) a corporation which owns all or substantially all of the
outstanding voting stock of Tenant, (ii) a corporation which is wholly owned
by Tenant or (iii) a corporation which is wholly owned by the corporation
which wholly owns Tenant, or (iv) a corporation created as a result of merger
or consolidation between Tenant and a third party or (v) a corporation which
purchases all or substantially all of Tenant's assets; provided, that (vi)
the assignee or sublessee shall utilize the Premises for substantially the
same purposes for which Tenant was utilizing the Premises at the time of
transfer; and (vii) Tenant shall not be relieved of any of its obligations
under this Lease on account of such transfer. All of the other provisions of
this ARTICLE 9 shall be applicable to such assignment or subletting
(including SECTION 9.3), other than the requirement for Landlord's consent
and other than Landlord's right of recapture set forth in SECTION 9.2.
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ARTICLE 10
EVENTS OF DEFAULT AND REMEDIES
10.1 DEFAULT BY TENANT. The occurrence of any one or more of the
following events ("EVENT OF Default") shall constitute a breach of this Lease
by Xxxxxx:
(a) Tenant fails to pay any Base Rent, or any Additional Monthly
Rent, or any Additional Rent or other amount of money or charge payable by
Tenant hereunder as and when such rent becomes due and payable and such
failure continues for more than three (3) days after Xxxxxxxx gives written
notice thereof to Tenant; provided, however, that after the second such
failure in any twelve (12) month period, only the passage of three (3) days
after the due date, but not written notice, shall be required to establish an
Event of Default in the same twelve (12) month period; and provided further,
that any such notice shall be in lieu of, and not in addition to, any notice
required under California Code of Civil Procedure SECTION 1161; or
(b) Tenant fails to perform or breaches any other agreement or
covenant of this Lease to be performed or observed by Xxxxxx as and when
performance or observance is due and such failure or breach continues for
more than ten (10) days after Landlord gives written notice thereof to
Tenant; provided, however, that if, by the nature of such agreement or
covenant, such failure or breach cannot reasonably be cured within such
period often (10) days, an Event of Default shall not exist as long as Tenant
commences with due diligence and dispatch the curing of such failure or
breach within such period often (10) days and, having so commenced,
thereafter prosecutes with diligence and dispatch and completes the curing of
such failure or breach within a period of sixty (60) days after Landlord's
notice; and provided further, that any such notice shall be in lieu of, and
not in addition to, any notice required under California Code of Civil
Procedure SECTION 1161; or
(c) Tenant (i) files, or consents by answer or otherwise to the
filing against it of, a petition for relief or reorganization or arrangement
or any other petition in bankruptcy or for liquidation or to take advantage
of any bankruptcy, insolvency or other debtors' relief law of any
jurisdiction, (ii) makes an assignment for the benefit of its creditors, or
(iii) consents to the appointment of a custodian, receiver, trustee or other
officer with similar powers of Tenant or of any substantial part of Tenant's
property; or
(d) Without consent by Xxxxxx, a court or government authority
enters an order, and such order is not vacated within thirty (30) days, (i)
appointing a custodian, receiver, trustee or other officer with similar
powers with respect to Tenant or with respect to any substantial part of
Tenant's property, or (ii) constituting an order for relief or approving a
petition for relief or reorganization or arrangement or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy,
insolvency or other debtors' relief law of any jurisdiction, or (iii)
ordering the dissolution, winding-up or liquidation of Tenant; or
(e) This Lease or any estate of Tenant hereunder is levied upon
under any attachment or execution and such attachment or execution is not
vacated within thirty (30) days; or
(f) Tenant abandons the Premises;
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(g) An Event of Default occurs under the New Building Lease. This
SECTION 10.1(g) shall not apply if Landlord has sold the Building or the New
Building or if Tenant has assigned this Lease or the New Building Lease to a
third party (other than the assignees described in SECTION 9.7 above) which
is unrelated to Tenant in a transaction consented to by Landlord. This
SECTION 10.1(g) will apply at any time in the future during which the
Building and the New Building are owned by the same person or entity as long
as the Event of Default to which the first sentence of this paragraph applies
occurs during the period when both the Building and the New Building are
owned by the same person or entity; or
(h) Tenant fails to deliver to Landlord, within thirty (30) days
after the date hereof, the Letter of Credit required by EXHIBIT H.
10.2 TERMINATION. In the event of any such Event of Default by
Tenant, in addition to any other remedies available to Landlord at law or in
equity, Landlord shall have the immediate option to terminate this Lease and
all rights of Tenant hereunder and to remove Tenant from the Premises. In the
event that Landlord shall elect to so terminate this Lease then Landlord may
recover from Tenant:
(a) the worth at the time of award of any unpaid rent which had been
earned at the time of such termination; plus
(b) the worth at the time of award of the amount by which the unpaid
rent which would have been earned after termination until the time of award
exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; plus
(c) the worth at the time of award of the amount by which the unpaid
rent for the balance of the term after the time of award exceeds the amount
of such rental loss that Tenant proves could be reasonably avoided; plus
(d) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Xxxxxx's failure to perform his obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom.
As used in SUBSECTION 10.2(a) AND (b) above, the "worth at the time of award"
is computed by allowing interest at the maximum rate permitted by law per
annum. As used in SUBSECTION 10.2(c) above, the "worth at the time of award"
is computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus one percent (1%).
10.3 CONTINUATION. In the event of any such Event of Default by
Tenant, Landlord shall also have the right, with or without terminating this
Lease, to re-enter the Premises and remove all persons and property from the
Premises; such property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Tenant for such period of
time as may be required by applicable law after which time Landlord may
dispose of such property in accordance with applicable law. No re-entry or
taking possession of the Premises by Landlord pursuant to this SECTION 10.3
shall be construed as an election to terminate this Lease unless a written
notice of such intention be given to Tenant or unless the termination thereof
be decreed by a court of competent jurisdiction. In addition to its other
rights under this Lease, Landlord has the remedy described in California
Civil Code SECTION 1951.4 (Landlord may
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continue the Lease in effect after Xxxxxx's breach and abandonment and
recover the rent as it becomes due, if Xxxxxx has the right to sublet or
assign, subject only to reasonable limitations).
10.4 REMEDIES CUMULATIVE. Upon the occurrence of an Event of
Default, Landlord shall have the right to exercise and enforce all rights and
remedies granted or permitted by law. The remedies provided for in this Lease
are cumulative and in addition to all other remedies available to Landlord at
law or in equity by statute or otherwise. Exercise by Landlord of any remedy
shall not be deemed to be an acceptance of surrender of the Premises by
Xxxxxx, either by agreement or by operation of law. Surrender of the Premises
can be effected only by the written agreement of Landlord and Xxxxxx.
10.5 TENANT'S PRIMARY DUTY. All agreements and covenants to be
performed or observed by Tenant under this Lease shall be at Tenant's sole
cost and expense and without any abatement of rent. If Tenant fails to pay
any sum of money to be paid by Tenant or to perform any other act to be
performed by Tenant under this Lease, Landlord shall have the right, but
shall not be obligated, and without waiving or releasing Tenant from any
obligations of Tenant, to make any such payment or to perform any such other
act on behalf of Tenant in accordance with this Lease. All sums so paid by
Xxxxxxxx and all costs incurred or paid by Landlord shall be deemed
additional rent hereunder and Tenant shall pay the same to Landlord on
written demand, together with interest on all such sums and costs from the
date of expenditure by Landlord to the date of repayment by Xxxxxx at the
rate of ten percent (10%) per annum.
10.6 ABANDONED PROPERTY. If Tenant vacates the Premises, or is
dispossessed by process of law or otherwise, any movable furniture,
equipment, trade fixtures or personal property belonging to Tenant and left
in the Premises shall, at the option of the Landlord, be deemed to be
abandoned, and Landlord shall have the right to use, sell or otherwise
dispose of such personal property in any commercially reasonable manner.
10.7 LANDLORD DEFAULT. If Landlord defaults under this Lease, Tenant
shall give written notice to Landlord specifying such default with
particularity, and Landlord shall have thirty (30) days after receipt of such
notice within which to cure such default; provided, that if by the nature of
the obligation of which Landlord is in default the default cannot reasonably
be cured within such period of thirty (30) days, Landlord shall not be deemed
in default hereunder so long as it commences with due diligence and dispatch
the curing of such default within such period of thirty (30) days and, having
so commenced, thereafter prosecutes with diligence and dispatch and completes
the curing of such default within a period of sixty (60) days after Xxxxxx's
notice. In the event of any default by Landlord, Xxxxxx's exclusive remedy
shall be an action for damages and the provisions of SECTION 15.17 shall
apply.
ARTICLE 11
DAMAGE OR DESTRUCTION
11.1 RESTORATION. If the Building or the Premises, or any part
thereof, is damaged by fire or other casualty before the Commencement Date or
during the term of this Lease, and this Lease is not terminated pursuant to
SECTION 11.2 hereof, Landlord shall repair such damage and restore the
Building and the Premises (but not the Tenant Improvements or any Alterations
or any of Tenant's personal property, equipment or trade fixtures) to
substantially the same
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condition in which the Building and the Premises existed before the
occurrence of such fire or other casualty and this Lease shall, subject to
this SECTION 11.1, remain in full force and effect. If Landlord is obligated
or elects to make such repairs pursuant to SECTION 11.2 below, Tenant shall
pay to Landlord prior to Landlord's commencement of such repair work all
insurance proceeds received by Tenant applicable to the work which Landlord
is required or elects to perform and if such insurance proceeds, plus the
proceeds from applicable insurance which Landlord is required to carry
pursuant to SECTION 8.5, are not sufficient to allow Landlord to complete
such work, Tenant shall pay such shortfall to Landlord. All such payments
from Tenant to Landlord shall be made within ten (10) business days of demand
from Landlord. If such fire or other casualty damages the Premises or common
areas of the Building necessary for Tenant's use and occupancy of the
Premises and if such damage is not the result of the negligence or willful
misconduct of Tenant or Tenant's agents, officers, employees, contractors,
licensees or invitees, then, during the period the Premises are rendered
unusable by such damage, Tenant shall be entitled to a reduction in Base Rent
in the proportion that the area of the Premises rendered unusable by such
damage bears to the total area of the Premises (i) during the period of
Landlord's Work and until the same is substantially completed and (ii) to the
extent of any rent insurance proceeds paid to Landlord, during the period
when Tenant is repairing the damage which it is responsible to repair.
Landlord shall not be obligated to repair any damage to, or to make any
replacement of, any Alterations, movable furniture, equipment, trade
fixtures, Tenant Improvements or personal property in the Premises. Tenant
shall, at Tenant's sole cost and expense, repair and replace all such
Alterations, movable furniture, equipment, trade fixtures, Tenant
Improvements and personal property in compliance with SECTION 7 hereof.
11.2 TERMINATION OF LEASE. If the Building or the Premises, or any
part thereof, is damaged by fire or other casualty before the Commencement
Date or during the term of this Lease and (a) such fire or other casualty
occurs during the last twelve (12) months of the term of this Lease (as it
may be extended as provided in this Lease) and the repair and restoration
work to be performed by Landlord in accordance with SECTION 11.1 hereof
cannot, as reasonably estimated by Landlord, be completed within two (2)
months after the occurrence of such fire or other casualty, or (b) the
insurance proceeds received by Landlord in respect of such damage are not
adequate to pay the entire cost, as reasonably estimated by Xxxxxxxx, of the
repair and restoration work to be performed by Landlord in accordance with
SECTION 11.1 hereof (including inadequacy resulting from the requirement of
the holder of any indebtedness secured by a mortgage or deed of trust
covering the Premises that the insurance proceeds be applied to such
indebtedness, unless the application of such insurance proceeds shall be due
to a default by Landlord under the documents and instruments relating to such
indebtedness), or (c) the repair and restoration work to be performed by
Landlord in accordance with SECTION 11.1 hereof cannot, as reasonably
estimated by Landlord, be completed within one (1) year after the occurrence
of such fire or other casualty, then, in any such event, Landlord shall have
the right, by giving written notice to Tenant within sixty (60) days after
the occurrence of such fire or other casualty, to terminate this Lease as of
the date of such notice. If Landlord does not exercise the right to terminate
this Lease in accordance with this SECTION 11.2, Landlord shall repair such
damage and restore the Building and the Premises in accordance with SECTION
11.1 hereof and this Lease shall, subject to SECTION 11.1 hereof, remain in
full force and effect. A total destruction of the Building shall
automatically terminate this Lease effective as of the date of such total
destruction.
11.3 EXCLUSIVE REMEDY. This ARTICLE 11 shall be Xxxxxx's sole and
exclusive remedy in the event of damage or destruction to the Premises or the
Building, and Tenant, as a material
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inducement to Landlord entering into this Lease, irrevocably waives and
releases Xxxxxx's rights under California Civil Code SECTIONS 1932(2) and
1933(4). No damages, compensation or claim shall be payable by Landlord for
any inconvenience, any interruption or cessation of Tenant's business, or any
annoyance, arising from any damage to or destruction of all or any portion of
the Premises or the Building.
ARTICLE 12
EMINENT DOMAIN
12.1 CONDEMNATION. Landlord shall have the right to terminate this
Lease if any part of the Premises is taken by exercise of the power of
eminent domain before the Commencement Date or during the term of this Lease.
Tenant shall have the right to terminate this Lease if a substantial portion
of the Premises is taken by exercise of the power of eminent domain before
the Commencement Date or during the term of this Lease and the remaining
portion of the Premises is not reasonably suitable for Tenant's purposes. In
each such case, Landlord or Tenant shall exercise such termination right by
giving written notice to the other within thirty (30) days after the date of
such taking. If either Landlord or Tenant exercises such right to terminate
this Lease in accordance with this SECTION 12.1, this Lease shall terminate
as of the date of such taking. If neither Landlord nor Tenant exercises such
right to terminate this Lease in accordance with this SECTION 12.1, this
Lease shall terminate as to the portion of the Premises so taken as of the
date of such taking and shall remain in full force and effect as to the
portion of the Premises not so taken, and the Base Rent and Tenant's
Percentage Share shall be reduced as of the date of such taking in the
proportion that the area of the Premises so taken bears to the total area of
the Premises and an appropriate adjustment shall be made to Tenant's share of
CAM Expenses, Property Taxes and Insurance Costs incurred with respect to the
Project as a whole. If all of the Premises are taken by exercise of the power
of eminent domain before the Commencement Date or during the term of this
Lease, this Lease shall terminate as of the date of such taking.
12.2 AWARD. If all or any part of the Premises is taken by exercise
of the power of eminent domain, all awards, compensation, damages, income,
rent and interest payable in connection with such taking shall, except as
expressly set forth in this SECTION 12.2, be paid to and become the property
of Landlord, and Tenant hereby assigns to Landlord all of the foregoing.
Without limiting the generality of the foregoing, Tenant shall have no claim
against Landlord or the entity exercising the power of eminent domain for the
value of the leasehold estate created by this Lease or any unexpired term of
this Lease. Tenant shall have the right to claim and receive directly from
the entity exercising the power of eminent domain only the share of any award
determined to be owing to Tenant for the taking of improvements installed in
the portion of the Premises so taken by Tenant at Tenant's sole cost and
expense based on the unamortized cost actually paid by Tenant for such
improvements, for the taking of Tenant's movable furniture, equipment, trade
fixtures and personal property, for loss of goodwill, for interference with
or interruption of Tenant's business, or for removal and relocation expenses.
12.3 TEMPORARY USE. Notwithstanding SECTIONS 12.1 AND 12.2 hereof to
the contrary, if the use of all or any part of the Premises is taken by
exercise of the power of eminent domain during the term of this Lease on a
temporary basis for a period less than the term of this Lease remaining after
such taking, this Lease shall continue in full force and effect. Tenant shall
continue to pay all of the rent and to perform all of the covenants of Tenant
in accordance with
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this Lease, to the extent reasonably practicable under the circumstances, and
the condemnation proceeds in respect of such temporary taking shall be paid
to Tenant.
12.4 DEFINITION OF TAKING. As used herein, a "TAKING" means the
acquisition of all or part of the Building for a public use by exercise of
the power of eminent domain or voluntary conveyance in lieu thereof and the
taking shall be considered to occur as of the earlier of the date on which
possession of the Building (or part so taken) by the entity exercising the
power of eminent domain is authorized as stated in an order for possession or
the date on which title to the Building (or part so taken) vests in the
entity exercising the power of eminent domain.
12.5 EXCLUSIVE REMEDY. This ARTICLE 12 shall be Xxxxxx's sole and
exclusive remedy in the event of a taking or condemnation. Tenant hereby
waives the benefit of California Code of Civil Procedure SECTION 1265.130.
ARTICLE 13
SUBORDINATION AND SALE
13.1 SUBORDINATION. This Lease shall be subject and subordinate at
all times to the lien of all deeds of trust securing any amount or amounts
whatsoever which may now exist or hereafter be placed on or against the
Building or the Project or on or against Landlord's interest or estate
therein, all without the necessity of having further instruments executed by
Tenant to effect such subordination. Notwithstanding the foregoing, in the
event of a foreclosure of any such deed of trust or of any other action or
proceeding for the enforcement thereof, or of any sale thereunder, this Lease
shall not be terminated or extinguished, nor shall the rights and possession
of Tenant hereunder be disturbed, if no Event of Default then exists under
this Lease, and Tenant shall attorn to the person who acquires Landlord's
interest hereunder through any such deed of trust. In the event Landlord
elects to place a deed of trust on its interest in the Building or the
Project, it shall obtain for the benefit of its Lender and Tenant a
subordination, nondisturbance and attornment agreement no later than five (5)
business days after Landlord shall have executed and delivered such deed of
trust in a commercially reasonable form, reasonably acceptable to its lender,
and Xxxxxx agrees to execute, acknowledge and deliver upon demand such
agreement and further instruments evidencing such subordination of this Lease
to the lien of all such deeds of trust as may reasonably be required by
Landlord or its lender.
13.2 SALE OF THE PROJECT. If the original Landlord hereunder, or any
successor owner of the Project, sells or conveys the Project, all liabilities
and obligations on the part of the original Landlord, or such successor
owner, under this Lease accruing after such sale or conveyance shall
terminate, and the original Landlord, or such successor owner, shall
automatically be released therefrom, and thereupon all such liabilities and
obligations shall be binding upon the new owner. Xxxxxx agrees to attorn to
such new owner.
13.3 ESTOPPEL CERTIFICATE. At any time and from time to time, each
of Landlord and Tenant shall, within ten (10) days after written request by
the other, execute, acknowledge and deliver to the other a certificate
certifying: (a) that this Lease is unmodified and in full force and effect
(or, if there have been modifications, that this Lease is in lull force and
effect as modified, and stating the date and nature of each modification);
(b) the Commencement Date and the Expiration Date determined in accordance
with ARTICLE 2 hereof and the date, if any, to which all
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rent and other sums payable hereunder have been paid; (c) that no notice has
been received by the party giving the certificate of any default by the other
party hereunder which has not been cured, except as to defaults specified in
such certificate; (d) that the other party hereunder is not in default under
this Lease, except as to defaults specified in such certificate; and (e) such
other matters as may be reasonably requested by the requesting party and, in
the case of Landlord, by any actual or prospective purchaser or mortgage
lender. Any such certificate may be relied upon by the receiving party and
any actual or prospective purchaser or mortgage lender of the Project or any
part thereof. At any time and from time to time, Tenant shall, within ten
(10) days after written request by Xxxxxxxx, deliver to Landlord copies of
all current financial statements (including a balance sheet, an income
statement, and an accumulated retained earnings statement), annual reports,
and other financial and operating information and data of Tenant prepared by
Tenant in the course of Tenant's business. Unless available to the public,
Landlord shall disclose such financial statements, annual reports and other
information or data only to actual or prospective purchasers or mortgage
lenders of the Project or any part thereof, and otherwise keep them
confidential unless other disclosure is required by law.
ARTICLE 14
NOTICES
14.1 METHOD. All requests, approvals, consents, notices and other
communications given by Landlord or Tenant under this Lease shall be properly
given only if made in writing and either deposited in the United States mail,
postage prepaid, certified with return receipt requested, or delivered by
hand (which may be through a messenger or recognized delivery, courier or air
express service) and addressed as follows: if to Landlord: 401 River Oaks,
LLC, c/o Xxxxxxxx Xxxx Company, 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx
Xxxx, Xxxxxxxxxx 00000-0000, with a copy to: Xxxx, Hastings, Xxxxxxxx &
Xxxxxx LLP, 000 Xxxxxxxxxx Xxxxxx, Xxxxxx-Xxxxx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attn: Xxxxxxx X. Xxxxxxxx, or at such other place as
Landlord may from time to time designate in a written notice to Tenant; if to
Tenant: at the address of Tenant specified in the Basic Lease Information, or
at such other place as Tenant may from time to time designate in a written
notice to Landlord; and to Guarantor (if any) at the address of Guarantor
specified in the Basic Lease Information, or at such other place as Guarantor
may from time to time designate in a written notice to Landlord. Such
requests, approvals, consents, notices and other communications shall be
effective on the date of receipt (evidenced by the certified mail receipt) if
mailed or on the date of hand delivery if hand delivered. If any such
request, approval, consent, notice or other communication is not received or
cannot be delivered due to a change in the address of the receiving party of
which notice was not previously given to the sending party or due to a
refusal to accept by the receiving party, such request, approval, consent,
notice or other communication shall be effective on the date delivery is
attempted. Any request, approval, consent, notice or other communication
under this Lease may be given on behalf of a party by the attorney for such
party.
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ARTICLE 15
MISCELLANEOUS
15.1 GENERAL. The words "LANDLORD" and "TENANT" as used herein shall
include the plural as well as the singular. The words "INCLUDE," "INCLUDES"
and "INCLUDING" shall be deemed to be followed by the phrase "WITHOUT
LIMITATION." If there is more than one Tenant, the obligations hereunder
imposed upon Tenant shall be joint and several. Time is of the essence of
this Lease and each and all of its provisions. This Lease shall benefit and
bind Landlord and Xxxxxx and the permitted personal representatives, heirs,
successors and assigns of Landlord and Xxxxxx. If any provision of this Lease
is determined to be illegal or unenforceable, such determination shall not
affect any other provision of this Lease and all such other provisions shall
remain in full force and effect. Tenant shall not record this Lease or any
memorandum or short form of it. This Lease shall be governed by and construed
in accordance with the laws of the state in which the Project is located.
15.2 NO WAIVER. The waiver by Landlord or Tenant of any breach of
any covenant in this Lease shall not be deemed to be a waiver of any
subsequent breach of the same or any other covenant in this Lease, nor shall
any custom or practice which may grow up between Landlord and Tenant in the
administration of this Lease be construed to waive or to lessen the right of
Landlord or Tenant to insist upon the performance by Landlord or Tenant in
strict accordance with this Lease. The subsequent acceptance of rent
hereunder by Xxxxxxxx or the payment of rent by Tenant shall not waive any
preceding breach by Tenant of any covenant in this Lease, nor cure any Event
of Default, nor waive any forfeiture of this Lease or unlawful detainer
action, other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's or Tenant's knowledge of such preceding
breach at the time of acceptance or payment of such rent.
15.3 ATTORNEYS' FEES. If there is any legal action or proceeding
between Landlord and Tenant to enforce this Lease or to protect or establish
any right or remedy under this Lease, the unsuccessful party to such action
or proceeding shall pay to the prevailing party all costs and expenses,
including reasonable attorneys' fees and disbursements, incurred by such
prevailing party in such action or proceeding and in any appeal in connection
therewith. If such prevailing party recovers a judgment in any such action,
proceeding or appeal, such costs, expenses and attorneys' fees and
disbursements shall be included in and as a part of such judgment.
15.4 EXHIBITS. EXHIBIT A (Plan Outlining the Premises and the
Project), EXHIBIT B (Work Letter Agreement), EXHIBIT C (Form of Memorandum
Confirming Term), EXHIBIT E (Rules and Regulations), EXHIBIT F (Option to
Extend/Fair Market Rental Rate), EXHIBIT G (Parking Rules and Regulations),
EXHIBIT H (Letter of Credit Terms), EXHIBIT I (Calculation of Rentable Square
Feet) and any other attachments specified in the Basic Lease Information, are
attached to and made a part of this Lease and once again incorporated into
this Lease by this reference.
15.5 BROKER(S). Tenant warrants and represents to Landlord that
Xxxxxx has negotiated this Lease directly with the real estate broker(s)
specified in the Basic Lease Information and has not authorized or employed,
or acted by implication to authorize or to employ, any other real estate
broker to act for Tenant in connection with this Lease.
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15.6 WAIVERS OF JURY TRIAL AND CERTAIN DAMAGES. Landlord and Tenant
each hereby expressly, irrevocably, fully and forever releases, waives and
relinquishes any and all right to trial by jury and any and all right to
receive punitive, exemplary and consequential damages from the other (or any
past, present or future board member, trustee, director, officer, employee,
agent, representative, or advisor of the other) in any claim, demand, action,
suit, proceeding or cause of action in which Landlord and Tenant are parties,
which in any way (directly or indirectly) arises out of, results from or
relates to any of the following, in each case whether now existing or
hereafter arising and whether based on contract or tort or any other legal
basis: this Lease; any past, present or future act, omission, conduct or
activity with respect to this Lease; any transaction, event or occurrence
contemplated by this Lease; the performance of any obligation or the exercise
of any right under this Lease; or the enforcement of this Lease. Landlord and
Tenant reserve the right to recover actual or compensatory damages, with
interest, attorneys' fees, costs and expenses as provided in this Lease, for
any breach of this Lease.
15.7 ENTIRE AGREEMENT. There are no oral agreements between Landlord
and Tenant affecting this Lease, and this Lease supersedes and cancels any
and all previous negotiations, arrangements, term sheets, brochures, videos,
CD ROMS, Web site info, offers, agreements and understandings, oral or
written, if any, between Landlord and Tenant or displayed by Landlord to
Tenant with respect to the subject matter of this Lease, the Premises or the
Project. There are no commitments, representations or assurances between
Landlord and Tenant or between any real estate broker and Tenant other than
those expressly set forth in this Lease, and all reliance with respect to any
commitments, representations or assurances is solely upon commitments,
representations and assurances expressly set forth in this Lease. This Lease
may not be amended or modified in any respect whatsoever except by an
agreement in writing signed by Landlord and Xxxxxx.
15.8 PARKING. Unless an Event of Default by Tenant is in existence
hereunder, Tenant shall be entitled to the number of unreserved parking
spaces designated in the Basic Lease Information free of charge (except that
the costs incurred by Landlord with respect to such parking, including any
parking management programs, shall be included in Operating Costs, if there
is at least one tenant (unrelated to Tenant) leasing an interest in the
Project from Landlord) for the initial term of this Lease except for any
charges imposed by governmental agencies beyond Landlord's control. If there
is at least one tenant (unrelated to Tenant) leasing an interest in the
Project from Landlord, Landlord may assign any unreserved and unassigned
parking spaces and/or make all or a portion of such spaces reserved, if it
determines in its sole discretion that it is necessary for orderly and
efficient parking. Tenant shall not use more parking spaces than said number
and shall comply with the Parking Rules and Regulations attached as EXHIBIT
K. If there is at least one tenant (unrelated to Tenant) leasing an interest
in the Project from Landlord, and in the event Landlord has not assigned
specific spaces to Tenant. Tenant shall not use any spaces which have been so
specifically assigned by Landlord to other tenants or for such other uses as
visitor parking or which have been designated by governmental entities with
competent jurisdiction as being restricted to certain uses.
15.9 CHOICE OF LAW. This Lease shall be governed by and construed
pursuant to the laws of the State of California.
15.10 NO AIR RIGHTS. No rights to any view or to light or air over
any property, whether belonging to Landlord or any other person, are granted
to Tenant by this Lease. If at any time the light or view from windows is
obstructed by reason of any repairs, improvements,
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maintenance or cleaning in or about the Project, the same shall be without
liability to Landlord and without any reduction or diminution of Tenant's
obligations under this Lease.
15.11 MODIFICATION OF LEASE. Should any current or prospective
mortgagee or ground lessor for the Building or Project require a modification
of this Lease, which modification will not cause an increased cost or expense
to Tenant or (other than in a de minimus manner) adversely change the rights
and obligations of Tenant hereunder, then and in such event, Xxxxxx agrees
that this Lease may be so modified and agrees to execute whatever documents
are reasonably required therefor and to deliver the same to Landlord within
twenty (20) days following a request therefor. At the request of Landlord or
Tenant or any mortgagee or ground lessor. Tenant and Xxxxxxxx agree to
execute a short form of Lease memorandum and deliver the same to the
requesting party within twenty (20) days following the request therefor, the
recordation of which shall be at the sole cost and expense of the party
seeking recordation.
15.12 LANDLORD'S TITLE. Xxxxxxxx's title is and always shall be
paramount to the title of Tenant.
15.13 APPLICATION OF PAYMENTS. Unless Tenant, by Notice to Landlord,
specifically restricts how such payment is to be applied, Landlord shall have
the right to apply payments received from Tenant pursuant to this Lease,
regardless of Tenant's designation of such payments, to satisfy any
obligations of Tenant hereunder, in such order and amounts as Landlord, in
its sole discretion, may elect. However, while Landlord must accept payments
made under protest, Landlord is not obligated to accept a payment made with
other restrictions, and such payment, if not accepted by Landlord, shall be
returned to Tenant within five (5) business days of demand by Xxxxxx.
15.14 TIME OF ESSENCE. Time is of the essence with respect to the
performance of every term, covenant and condition of this Lease in which time
of performance is a factor. Whenever in the Lease a payment is required to be
made by one party to the other, but a specific date for payment is not set
forth or a specific number of days within which payment is to be made is not
set forth, or the words "IMMEDIATELY," "PROMPTLY," and/or "ON DEMAND," or
their equivalent, are used to specify when such payment is due, then such
payment shall be due fifteen (15) days after the date that the party which is
entitled to such payment sends Notice to the other party demanding such
payment.
15.15 RIGHT TO LEASE. If there is at least one tenant (unrelated to
Tenant) leasing an interest in the Project from Landlord, Landlord reserves
the absolute right to effect such other tenancies in the Project as Landlord
in the exercise of its sole business judgment and shall determine to best
promote the interests of the Project.
15.16 FORCE MAJEURE. Any prevention, delay or stoppage due to
strikes, lockouts, labor disputes, acts of God, inability to obtain services,
labor, or materials or reasonable substitutes therefor, governmental actions,
civil commotions, fire, earthquake or Other casualty, and other causes beyond
the reasonable control of the party obligated to perform, except with respect
to the obligations imposed with regard to rent and other charges to be paid
by Tenant pursuant to this Lease (collectively, a "FORCE MAJEURE EVENT"),
shall excuse the performance of such party for a period equal to any such
prevention, delay or stoppage notwithstanding anything to the contrary
contained in this Lease. Therefore, if this Lease specifies a time period for
performance of an obligation of either party, that time period shall be
extended by the period of any delay in such
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party's performance caused by a Force Majeure Event, except with respect to
the Tenant's obligation to pay rent and other charges due hereunder.
15.17 EXCULPATION. The liability of Landlord to Tenant for any
default by Landlord under this Lease or arising in connection herewith or
with Landlord's operation, management, leasing, repair, renovation,
alteration or any other matter relating to the Project or the Premises shall
be limited solely and exclusively to an amount which is equal to the interest
of Landlord in the Building (including any insurance proceeds which Landlord
receives). Landlord shall have no personal liability therefor, and Tenant
hereby expressly waives and releases such personal liability on behalf of
itself and all persons claiming by, through or under Tenant. Under no
circumstances shall Tenant seek or obtain a personal money judgment against
Landlord. The limitations of liability contained in this SECTION 15.17 shall
inure to the benefit of Landlord's present and future partners,
beneficiaries, officers, directors, trustees, shareholders, agents and
employees, and their respective partners, heirs, successors and assigns.
Under no circumstances shall any present or future partner or member of
Landlord (if Landlord is a partnership or limited liability company), or
trustee or beneficiary (if Landlord or any partner of Landlord is a trust),
have any liability for the performance of Landlord's obligations under this
Lease.
15.18 NO DISCRIMINATION. Tenant covenants by and for itself and
Tenant's officers, executives, administrators, assigns and all persons
claiming under or through Tenant, that this Lease is made and accepted upon
and subject to the following conditions: there shall be no discrimination
against or segregation of any person or group of persons, on account of race,
color, creed, religion, sex, marital status, national origin or ancestry in
the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of
the Premises hereby leased, nor shall Tenant itself, or any person claiming
under or through Tenant, establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location,
number, use or occupancy of subtenants, sublessees or vendees in the Premises.
15.19 COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of
which, taken together, shall constitute one and the same instrument.
15.20 ROOF RIGHTS. As part of its Tenant Improvements, Tenant shall
have the right, at its expense, to install telecommunications equipment on
the roof of the Building for its own use, although it shall not have the
right to utilize such equipment for the use of others, with or without
compensation. The installation of such telecommunications equipment shall be
subject to the Design Criteria and all of the provisions of the Work Letter
Agreement, and such equipment may not interfere with the installation, use or
maintenance of other equipment installed on the roof of the Building by
Landlord. Should an additional tenant, which is a direct tenant of Landlord,
occupy the Building, under no circumstances shall Tenant's use of its
telecommunications equipment interfere with the ability of Landlord or other
tenants of the Project to utilize telecommunications equipment, and the
installation of such equipment shall be consistent with Landlord's plan
regarding the aesthetics of the Building. All of such telecommunications
equipment, if installed, shall be removed by Tenant at its expense on the
expiration or earlier termination of the Lease, and all damages caused by
such removal shall be paid upon demand by Tenant to Landlord.
15.21 SIGNAGE. Consistent with the Design Criteria, Tenant shall
have the right to install, at its sole cost and expense, signage on the top
of the Building and monument signage in
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front of the Building, identifying Tenant. The location, size, design and
material of each of these signs shall be subject to Landlord's consent. In
addition, subject to compliance with the Design Criteria, Tenant may
incorporate its logo and signage on the walls of the elevator lobbies of the
Building and on the entrance doors of the Building. At the expiration or
earlier termination of the Lease, all of such signage shall be removed by
Tenant at its sole cost and expense, and Tenant shall repair any damages
caused by such removal.
15.22 REASONABLENESS. Whenever the consent or approval of Landlord
or Tenant is required herein, such consent or approval shall not be
unreasonably withheld or delayed unless otherwise specified in the place
where such consent or approval is required. Whenever any act is required to
be done by Tenant to the satisfaction of Landlord or upon the request or
requirement of Landlord, Landlord shall not unreasonably request or require
such action by Tenant. Whenever Landlord's judgment is specified as the
required standard or Landlord is permitted to exercise its discretion, unless
the provision so specified permits Landlord's "sole judgment" or words to
that effect, such judgment and discretion shall be reasonably exercised.
15.23 NO LIENS ON TENANT'S EQUIPMENT. Landlord waives, releases and
relinquishes any statutory, common law or constitutional liens it may have or
at any time hereafter be entitled to assert against the telecommunications
equipment which Tenant installs in the Premises.
[END OF TEXT]
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IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have executed this Lease as
of the date specified in the Basic Lease Information.
"Landlord" "Tenant"
000 XXXXX XXXX, LLC, Xxxxxxx-Xxxxxxx Company
a California limited liability company a California corporation
By: Xxxxxxx Associates Real Estate
Counsel, Inc., a Delaware corporation, By: /s/ XXXXXX XXXXXXX
its Manager -------------------------
Name: XXXXXX XXXXXXX
----------------------
Its: VICE PRESIDENT FINANCE
-----------------------
By: /s/ XXX X. XXXXXX
----------------------------
Xxx X. Xxxxxx By:_________________________
President Name:_______________________
Its:________________________
By: /s/ XXXX X. XXXXXX
----------------------------
Xxxx X. Xxxxxx
Senior Vice President
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