LEASE AGREEMENT
THIS LEASE, made this 14th day of September, 1994 between XXXX
XXXXXXXXX, Trustee, or his Successor Trustee, UTA dated 7/20/77, (XXXX
XXXXXXXXX SEPARATE PROPERTY TRUST) as amended, and XXXXXXX X. XXXXX, Trustee,
or his Successor Trustee, UTA dated 7/20/77 (XXXXXXX X. XXXXX SEPARATE
PROPERTY TRUST) as amended, hereinafter called Landlord, and QUANTUM EFFECT
DESIGN, INC., a California corporation, hereinafter called Tenant.
W I T N E S S E T H
Landlord hereby leases to Tenant and Tenant hereby hires and takes
from Landlord those certain premises (the "Premises") outlined in red on
Exhibit "A" attached hereto and incorporated hereby by this reference thereto
more particularly described as follows:
A portion of that certain 45,000-plus or minus- square foot, two-story
building located at 0000-0 Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxxx,
Xxxxxxxxxx 00000, consisting of approximately 15,218-plus or minus-
square feet of space. Said Premises is more particularly shown within
the area outlined in Red on EXHIBIT A. The entire parcel, of which the
Premises is a part, is shown within the area outlined in Green on
EXHIBIT A attached hereto. The Premises is leased on an "as-is" basis,
in its present condition, and in the configuration as shown in Red on
EXHIBIT B to be attached hereto.
As used herein the Complex shall mean and include all of the land
outlined in Green and described in Exhibit "A," attached hereto, and all of
the buildings, improvements, fixtures and equipment now or hereafter situated
on said land.
Said letting and hiring is upon and subject to the terms, covenants
and conditions hereinafter set forth and Tenant covenants as a material part
of the consideration for this Lease to perform and observe each and all of
said terms, covenants and conditions. This Lease is made upon the conditions
of such performance and observance.
1. USE. Tenant shall use the Premises only in conformance with
applicable governmental regulations, rules and ordinances for the purpose of
general office, light manufacturing, research and development, and storage
and other uses necessary for Tenant to conduct Tenant's business, provided
that such uses shall be in accordance with all applicable governmental laws
and ordinances and for no other purpose. Tenant shall not do or permit to be
done in or about the Premises or the Complex nor bring or keep or permit to
be brought or kept in or about the Premises or the Complex anything which is
prohibited by or will in any way increase the existing rate of (or otherwise
affect) fire or any insurance covering the Complex or any part thereof, or
any of its contents, or will cause a cancellation of any insurance covering
the Complex or any part thereof, or any of its contents. Tenant shall no do
or permit to be done anything in, on or about the Premises or the Complex
which will in any way obstruct or interfere with the rights of other tenants
or occupants of the Complex or injure or annoy them, or use or allow the
Premises to be used for any improper, immoral, unlawful or objectionable
purpose, nor
1.
shall Tenant cause, maintain or permit any nuisance in, on or about the
Premises or the Complex. No sale by auction shall be permitted on the
Premises. Tenant shall not place any loads upon the floors, walls, or
ceiling, which endanger the structure, or place any harmful fluids or other
materials in the drainage system of the building, or overload existing
electrical or other mechanical systems. No waste materials or refuse shall be
dumped upon or permitted to remain upon any part of the Premises or outside
of the building in which the Premises are a part, except in trash containers
placed inside exterior enclosures designated by Landlord for that purpose or
inside of the building proper where designated by Landlord. No materials,
supplies, equipment, finished products or semi-finished products, raw
materials or articles of any nature shall be stored upon or permitted to
remain outside the Premises or on any portion of common area of the Complex.
No loudspeaker or other device, system or apparatus which can be heard
outside the Premises shall be used in or at the Premises without the prior
written consent of the Landlord. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises. Tenant shall indemnify, defend
and hold Landlord harmless against any loss, expense, damage, attorneys'
fees, or liability arising out of failure of Tenant to comply with any
applicable law. Tenant shall comply with any covenant, condition, or
restriction ("C&R's") affecting the Premises. The provisions of this
paragraph are for the benefit of Landlord only and shall not be construed to
be for the benefit of any tenant or occupant of the Complex.
2. TERM.*
A. The term of this Lease shall be for a period of three
(3) years six (6) months sixteen (16) days (unless sooner terminated as
hereinafter provided) and, subject to Paragraphs 2(B) and 3, shall commence
on the 15th day of November, 1994 and end on the 31st of May of 1998.
B. Possession of the Premises shall be deemed tendered and
the term of this Lease shall commence when the first of the following occurs:
(a) One day after a Certificate of Occupancy is granted by
the proper governmental agency, or, if the governmental agency having
jurisdiction over the area in which the Premises are situated does not issue
certificates of occupancy, then the same number of days after certification
by Landlord's architect or contractor that Landlord's construction work has
been completed; or
(b) Upon the occupancy of the Premises by any of Tenant's
operating personnel; or
(c) When the Tenant Improvements have been substantially
completed for Tenant's use and occupancy, in accordance and compliance with
Exhibit B of this Lease Agreement; or
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* It is agreed in the event said Lease commences on a date other than the
first day of the month the term of the Lease will be extended to account for
the number of days in the partial month. The Basic Rent during the resulting
partial month will be pro-rated (for the number of days in the partial month)
at the Basic Rent scheduled for the projected commencement date as shown in
paragraph 43.
2.
(d) As otherwise agreed in writing.
3. POSSESSION. If Landlord, for any reason whatsoever, cannot
deliver possession of said premises to Tenant at the commencement of the said
term, as hereinbefore specified, this Lease shall not be void or voidable; no
obligation of Tenant shall be affected thereby; nor shall Landlord or
Landlord's agents be liable to Tenant for any loss or damage resulting
therefrom; but in that event the commencement and termination dates of the
Lease, and all other dates affected thereby shall be revised to conform to
the date of Landlord's delivery of possession, as specified in Paragraph 2(b)
above. The above is, however, subject to the provision that the period of
delay of delivery of the premises shall not exceed 60 days from the
commencement date herein (except those delays caused by Acts of God, strikes,
war, utilities, governmental bodies, weather, unavailable materials, and
delays beyond Landlord's control shall be excluded in calculating such
period) in which issuance Tenant, at its option, may, by written notice to
Landlord, terminate this Lease.
4. RENT.
A. BASIC RENT. Tenant agrees to pay to Landlord at such
place as Landlord may designate without deduction, offset, prior notice, or
demand, and Landlord agrees to accept as Basic Rent for the leased Premises
the total sum of FIVE HUNDRED TWENTY ONE THOUSAND TWO HUNDRED FOUR AND 13/100
($521,204.13) Dollars in lawful money of the United States of America,
payable as follows:
SEE PARAGRAPH 43 FOR BASIC RENT SCHEDULE.
B. TIME FOR PAYMENT. In the event that the term of this
Lease commences on a date other than the first day of a calendar month, on
the date of commencement of the term hereof Tenant shall pay to Landlord as
rent for the period from such date of commencement to the first day of the
next succeeding calendar month that proportion of the monthly rent hereunder
which the number of days between such date of commencement and the first day
of the next succeeding calendar month bears to thirty (30). In the event the
term of this Lease for any reason ends on a date other than the last day of a
calendar month, on the first day of the last calendar month of the term
hereof Tenant shall pay to Landlord as rent for the period from said first
day of said last calendar month to and including the last day of the term
here that proportion of the monthly rent hereunder which the number of days
between said first day of said last calendar month and the first day of the
term hereof bears to thirty (30).
C. LATE CHARGE. Notwithstanding any other provision of this
Lease, if Tenant is in default in the payment of rental as set forth in this
Paragraph 4 when due, or any part thereof, Tenant agrees to pay Landlord, in
addition to the delinquent rental due, a late charge for each rental payment
in default ten (10) days. Said late charge shall equal ten percent (10%) of
each rental payment so in default.
D. ADDITIONAL RENT. Beginning with the commencement date of
the term of this Lease, Tenant shall pay to Landlord in addition to the Basic
Rent and as Additional Rent the following:
3.
(a) Tenant's proportionate share of all Taxes relating to
the Complex as set forth in Paragraph 12, and
(b) Tenant's proportionate share of all insurance
premiums relating to the Complex, as set forth in Paragraph 15, and
(c) Tenant's proportionate share of expenses for the
operation, management, maintenance and repair of the Building (including
common areas of the Building) and Common Areas of the Complex in which the
Premises are located as set forth in Paragraph 7, and
(d) All charges, costs and expenses, which Tenant is
required to pay hereunder, together with all interest and penalties, costs
and expenses; including attorneys' fees and legal expenses, that may accrue
thereto in the event of Tenant's failure to pay such amounts, and all
damages, reasonable costs and expenses which Landlord may incur by reason of
default of Tenant or failure on Tenant's part to comply with the terms of
this Lease. In the event of nonpayment by Tenant of Additional Rent, Landlord
shall have all the rights and remedies with respect thereto as Landlord has
for nonpayment of rent.
The Additional Rent due hereunder shall be paid to Landlord
or Landlord's agent (i) within five days for taxes and insurance and within
thirty (30) days for all other additional Rent items after presentation of
invoice from Landlord or Landlord's agent setting forth such Additional Rent
and/or (ii) at the option of Landlord, Tenant shall pay to Landlord monthly,
in advance, Tenant's pro rata share of an amount estimated by Landlord to be
Landlord's approximate average monthly expenditure for such Additional Rent
items, which estimated amount shall be reconciled within 120 days of the end
of each calendar year or more frequently if Landlord so elects to do so at
Landlord's sole and absolute discretion, as compared to Landlord's actual
expenditure for said Additional Rent items, with Tenant paying to Landlord,
upon demand, any amount of actual expenses expended by Landlord in excess of
said estimated amount, or Landlord refunding to Tenant (providing Tenant is
not in default in the performance of any of the terms, covenants and
conditions of this Lease) any amount of estimated payments made by Tenant in
excess of Landlord's actual expenditures for said Additional Rent items.
The respective obligations of Landlord and Tenant under this
paragraph shall survive the expiration or other termination of the term of
this Lease, and if the term hereof shall expire or shall otherwise terminate
on a day other than the last day of a calendar year, the actual Additional
Rent incurred for the calendar year in which the term hereof expires or
otherwise terminates shall be determined and settled on the basis of the
statement of actual Additional Rent for such calendar year and shall be pro
rated in the proportion which the number of days in such calendar year
preceding such expiration or termination bears to 365.
E. PLACE OF PAYMENT OF RENT AND ADDITIONAL RENT. All Basic
Rent hereunder and all payments hereunder for Additional Rent shall be paid
to Landlord at the office of Landlord at Xxxxx/Arrillaga, File 0000, Xxx
00000, Xxx Xxxxxxxxx, XX 00000 or to such other person or to each other place
as Landlord may from time to time designate in writing.
4.
F. SECURITY DEPOSIT. Concurrently with Tenant's execution
of this Lease, Tenant shall deposit with Landlord the sum of TWENTY FIVE
THOUSAND EIGHT HUNDRED SEVENTY AND 60/100 ($25,870.60) Dollars. Said sum
shall be held by Landlord as a Security Deposit for the faithful performance
by Tenant of all of the terms, covenants, and conditions of this Lease to be
kept and performed by Tenant during the term hereof. If Tenant defaults with
respect to any provision of this Lease, including, but not limited to, the
provisions relating to the payment of rent and any of the monetary sums due
herewith, Landlord may (but shall not be required to) use, apply or retain
all or any part of this Security Deposit for the payment of any other amount
which Landlord may spend by reason of Tenant's default or to compensate
Landlord for any other loss or damage which Landlord may suffer by reason of
Tenant's default. If any portion of said Deposit is so used or applied,
Tenant shall, within ten (10) days after written demand therefor, deposit
cash with Landlord in the amount sufficient to restore the Security Deposit
to its original amount. Tenant's failure to do so shall be a material breach
of this Lease. Landlord shall not be required to keep this Security Deposit
separate from its general funds, and Tenant shall not be entitled to interest
on such Deposit. If Tenant fully and faithfully performs every provision of
this Lease to be performed by it, the Security Deposit or any balance thereof
shall be returned to Tenant (or at Landlord's option, to the last assignee of
Tenant's interest hereunder) at the expiration of the Lease term and after
Tenant has vacated the Premises. In the event of termination of Landlord's
interest in this Lease, Landlord shall transfer said Deposit to Landlord's
successor in interest whereupon Tenant agrees to release Landlord from
liability for the return of such Deposit or the accounting therefor.
5. RULES AND REGULATIONS AND COMMON AREA. Subject to the terms and
conditions of this Lease and such Rules and Regulations as Landlord may from
time to time prescribe, Tenant and Tenant's employees, invitees and customers
shall, in common with other occupants of the Complex in which the Premises
are located, and their respective employees, invitees and customers, and
others entitled to the use thereof, have the nonexclusive right to use the
access roads, parking areas, and facilities provided and designated by
Landlord for the general use and convenience of the occupants of the Complex
in which the Premises are located, which areas and facilities are referred to
herein as "Common Area." This right shall terminate upon the termination of
this Lease. Landlord reserves the right from time to time to make changes in
the shape, size, location, amount and extent of Common Area. Landlord further
reserves the right to promulgate such reasonable rules and regulations
relating to the use of the Common Area, and any part or parts thereof, as
Landlord may deem appropriate for the best interests of the occupants of the
Complex. The Rules and Regulations shall be binding upon Tenant upon delivery
of a copy of them to Tenant, and Tenant shall abide by them and cooperate in
their observance. Such Rules and Regulations may be amended by landlord from
time to time, with or without advance notice, and all amendments shall be
effective upon delivery of a copy to Tenant. Landlord shall not be
responsible to Tenant for the non-performance by any other tenant or occupant
of the Complex of any of said Rules and Regulations.
Landlord shall operate, manage and maintain the Common Area. The
manner in which the Common Area shall be maintained and the expenditures for
such maintenance shall be at the discretion of Landlord.
5.
6. PARKING. Tenant shall have the right to use with other tenants or
occupants of the Complex 55 parking spaces in the common parking areas of the
Complex. Tenant agrees, that Tenant, Tenant's employees, agents,
representatives and/or invitees shall not use parking spaces in excess of
said 55 spaces allocated to Tenant hereunder. Landlord shall have the right,
at Landlord's sole discretion, to specifically designate the location of
Tenant's parking spaces within the common parking areas of the Complex in the
event of a dispute among the tenants occupying the building and/or Complex
referred to herein, in which event Tenant agrees that Tenant, Tenant's
employees, agents, representatives and/or invitees shall not use any parking
spaces other than those parking spaces specifically designated by Landlord
for Tenant's use. Said parking spaces, if specifically designated by Landlord
to Tenant, may be relocated by Landlord at any time, and from time to time,
Landlord reserves the right, at Landlord's sole discretion, to rescind any
specific designation of parking spaces, thereby returning Tenant's parking
spaces to the common parking area. Landlord shall give Tenant written notice
of any change in Tenant's parking spaces. Tenant shall not, at any time,
park, or permit to be parked, any trucks or vehicles adjacent to the loading
areas so as to interfere in any way with the use of such areas, nor shall
Tenant at any time park, or permit the parking of Tenant's trucks or other
vehicles or the trucks and vehicles of Tenant's suppliers or others, in any
portion of the common area not designated by Landlord for such use by Tenant.
Tenant shall not park nor permit to be parked, any inoperative vehicles or
equipment on any portion of the common parking area or other common areas of
the Complex. Tenant agrees to assume responsibility for compliance by its
employees within the parking provision contained herein. If Tenant or its
employees park in other than such designated parking areas, then Landlord may
charge Tenant, as an additional charge, and Tenant agrees to pay, ten
($10.00) Dollars per day for each day or partial day each such vehicle is
parked in any area other than that designated. Tenant hereby authorizes
Landlord at Tenant's sole expense to tow away from the Complex any vehicle
belonging to Tenant or Tenant's employees parked in violation of this
provision, or to attach violation stickers or notices to such vehicles.
Tenant shall use the parking areas for vehicle parking only, and shall not
use the parking areas for storage.
7. EXPENSES OF OPERATION, MANAGEMENT, AND MAINTENANCE OF THE COMMON
AREAS OF THE COMPLEX AND BUILDING IN WHICH THE PREMISES ARE LOCATED. As
Additional Rent and in accordance with Paragraph 4D of this Lease, Tenant
shall pay to Landlord Tenant's proportionate share (calculated on a square
footage or other equitable basis as calculated by Landlord) of all expenses
of operation, management, maintenance and repair of the Common Areas of the
Complex including, but not limited to, license, permit, and inspection fees;
security; utility charges associated with exterior landscaping and lighting
(including water and sewer charges); all charges incurred in the maintenance
of landscaped areas, lakes, parking lots, sidewalks, driveways, maintenance,
repair and replacement of all fixtures and electrical, mechanical, and
plumbing systems; structural elements and exterior surfaces of the buildings;
salaries and employee benefits of personnel and payroll taxes applicable
thereto; supplies, materials, equipment and tools; the cost of capital
expenditures which have the effect of reducing operating expenses, provided,
however, that in the event Landlord makes such capital improvements, Landlord
may amortize its investment in said improvements (together with interest at
the rate of fifteen (15%) percent per annum on the unamortized balance) as an
operating expense in accordance with standard account practices,
6.
provided, that such amortization is not at a rate greater than the
anticipated savings in the operating expenses.
"Additional Rent" as used herein shall not include Landlord's debt
repayments; interest on charges; expenses directly or indirectly incurred by
Landlord for the benefit of any other tenant; cost of the installation of
partitioning or any other tenant improvements; cost of attracting tenants;
depreciation; interest, or executive salaries.
As Additional Rent and in accordance with paragraph 4D of this
Lease, Tenant shall pay its proportionate share (calculated on a square
footage or other equitable basis as calculated by Landlord) of the cost of
operation (including common utilities, management, maintenance, and repair of
the building (including common areas such as lobbies, restroom, janitor's
closets, hallways, elevators, mechanical and telephone rooms, stairwells,
entrances, spaces above the ceilings and janitorization of said common areas)
in which the Premises are located. The maintenance items herein referred to
include, but are not limited to, all windows, window frames, plate glass,
glazing, truck doors, main plumbing systems of the building (such as water
and rain lines, sinks, toilets, faucets, drains, showers and water
fountains), main electrical systems (such as panels and conduits), heating
and air conditioning systems (such as compressors, fans, air handlers, ducts,
boilers, heaters), store fronts, roofs, downspouts, building common area
interiors (such as wall coverings, window coverings, floor coverings and
partitioning), ceilings, building exterior doors, skylights (if any)
automatic fire extinguishing systems, and elevators; license, permit, and
inspection fees; security, salaries and employee benefits of personnel and
payroll taxes applicable thereto; supplies, materials, equipment and tools;
the cost of capital expenditures which have the effect of reducing operating
expenses, provided, however that in the event Landlord makes such capital
improvements, Landlord may amortize its investment in said improvements
(together with interest at the rate of fifteen percent (15%) per annum on the
unamortized balance) as an operating expense in accordance with standard
accounting practices, provided, that such amortization is not at a rate
greater than the anticipated savings in the operating expenses. Tenant hereby
waives all rights under, and benefits of, subsection 1 of Section 1932 and
Sections 1941 and 1942 of the California Civil Code and under any similar
law, statute or ordinance now or hereafter in effect.
8. ACCEPTANCE AND SURRENDER OF PREMISES. By entry hereunder, Tenant
accepts the Premises as being in good and sanitary order, condition and
repair and accepts the building and improvements included in the Premises in
their present condition and without representation or warranty by Landlord as
to the condition of such building or as to the use or occupancy which may be
made thereof. Any exceptions to the foregoing must be by written agreement
executed by Landlord and Tenant. Tenant agrees on the last day of the Lease
term, or on the sooner termination of this Lease, to surrender the Premises
promptly and peaceably to Landlord in good condition and repair (damage by
Acts of God, fire, normal wear and tear excepted), with all interior walls
painted, or cleaned so that they appear freshly painted, and repaired and
replaced, if damaged; all floors cleaned and waxed; all carpets cleaned and
shampooed; the air conditioning and heating equipment serviced by a reputable
and licensed service firm and in good operating condition (provided the
maintenance of such equipment has been Tenant's responsibility during the
term of this Lease) together with all alterations,
7.
additions, and improvements which may have been made in, to, or on the
Premises (except movable trade fixtures installed at the expense of Tenant)
except that Tenant shall ascertain from Landlord within thirty (30) days
before the end of the term of this Lease whether Landlord desires to have the
Premises or any part or parts thereof restored to their condition and
configuration as when the Premises were delivered to Tenant and if Landlord
shall so desire, then Tenant shall restore said Premises or such part or
parts thereof before the end of this Lease at Tenant's sole cost and expense.
Tenant, on or before the end of the term or sooner termination of this Lease,
shall remove all of Tenant's personal property and trade fixtures from the
Premises, and all property not so removed on or before the end of the term or
sooner termination of this Lease shall be deemed abandoned by Tenant and
title to same shall thereupon pass to Landlord without compensation to
Tenant. Landlord may, upon termination of this Lease, remove all moveable
furniture and equipment so abandoned by Tenant, at Tenant's sole cost, and
repair any damage caused by such removal at Tenant's sole cost. If the
Premises be not surrendered at the end of the term or sooner termination of
this Lease, Tenant shall indemnify Landlord against loss or liability
resulting from the delay by Tenant in so surrendering the Premises including,
without limitation, any claims made by any succeeding tenant founded on such
delay. Nothing contained herein shall be construed as an extension of the
term hereof or as a consent of Landlord to any holding over by Tenant. The
voluntary or other surrender of this Lease or the Premises by Tenant or a
mutual cancellation of this Lease shall not work as a merger and, at the
option of Landlord, shall either terminate all or any existing subleases or
subtenancies or operate as an assignment to Landlord of all or any such
subleases or subtenancies.
9. ALTERATIONS AND ADDITIONS. Tenant shall not make, or suffer to be
made, any alteration or addition to the Premises, or any part thereof,
without the written consent of Landlord first had and obtained by Tenant, but
at the cost of Tenant, and any addition to, or alteration of, the Premises,
except moveable furniture and trade fixtures, shall at once become a part of
the Premises and belong to Landlord. Landlord reserves the right to approve
all contractors and mechanics proposed by Tenant to make such alterations and
additions. Tenant shall retain title to all moveable furniture and trade
fixtures placed in the Premises. All heating, lighting, electrical, air
conditioning, floor to ceiling partitioning, drapery, carpeting, and floor
installations made by Tenant, together with all property that has become an
integral part of the Premises, shall not be deemed trade fixtures. Tenant
agrees that it will not proceed to make such alteration or additions, without
having obtained consent from Landlord to do so, and until five (5) days from
the receipt of such consent, in order that Landlord may post appropriate
notices to avoid any liability to contractors or material suppliers for
payment for Tenant's improvements. Tenant will at all times permit such
notices to be posted and to remain posted until the completion of work.
Tenant shall, if required by Landlord, secure at Tenant's own cost and
expense, a completion and lien indemnity bond, satisfactory to Landlord, for
such work. Tenant further covenants and agrees that any mechanic's lien filed
against the Premises or against the Complex for work claimed to have been
done for, or materials claimed to have been furnished to Tenant, will be
discharged by Tenant, by bond or otherwise, within thirty (30) days after the
filing thereof, at the cost and expense of Tenant. Any exceptions to the
foregoing must be made in writing and executed by both Landlord and Tenant.
8.
10. TENANT MAINTENANCE. Tenant shall, at its sole cost and expense,
keep and maintain the Premises (including appurtenances) and every part
thereof in a high standard of maintenance and repair, and in good and
sanitary condition. Tenant's maintenance and repair responsibilities herein
referred to include, but are not limited to, janitorization, plumbing systems
within the non-common areas of the Premises (such as water and drain lines,
sinks), electrical systems within the non-common areas of the Premises (such
as outlets, lighting fixtures, lamps, bulbs, tubes, ballasts), heating and
air conditioning controls within the non-common areas of the Premises (such
as mixing boxes, thermostats, time clocks, supply and return grills), all
interior improvements within the premises including but not limited to: wall
coverings, window coverings, acoustical ceilings, vinyl tile, carpeting,
partitioning, doors (both interior and exterior, including closing
mechanisms, latches, locks), and all other interior improvements of any
nature whatsoever. Tenant agrees to provide carpet xxxxxxx under all rolling
chairs or to otherwise be responsible for wear and tear of the carpet caused
by such rolling chairs if such wear and tear exceeds that caused by normal
foot traffic in surrounding areas. Areas of excessive wear shall be replaced
at Tenant's sole expense upon Lease termination. See Paragraph 51.
11. UTILITIES OF THE BUILDING IN WHICH THE PREMISES ARE LOCATED. As
Additional Rent and in accordance with paragraph 4 D of this Lease. Tenant
shall pay its proportionate share (calculated on a square footage or other
equitable basis as calculated by Landlord) of the cost of all utility charges
such as water, gas, electricity, telephone, telex and other electronic
communications service, sewer service, waste-pick-up and any other utilities,
materials or services furnished directly to the building in which the
Premises are located, including, without limitation, any temporary or
permanent utility surcharge or other exactions whether or not hereinafter
imposed.
Landlord shall not be liable for and Tenant shall not be entitled to
any abatement or reduction of rent by reason of any interruption or failure
of utility services in the Premises when such interruption or failure is
cause by accident, breakage, repair, strikes, lockouts, or other labor
disturbances or labor disputes of any nature, or by any other cause, similar
or dissimilar, beyond the reasonable control of Landlord.
Provided that Tenant is not in default in the performance or
observance of any of the terms, covenants or conditions of this Lease to be
performed or observed by it, Landlord shall furnish to the Premises between
the hours of 8:00 a.m. and 6:00 p.m. Monday through Fridays (holidays
excepted) and subject to the rules and regulations of the complex
hereinbefore referred to, reasonable quantities of water, gas and electricity
suitable for the intended use of the Premises and heat and air conditioning
required in Landlord's judgment for the comfortable use and occupation of the
Premises for such purposes. Tenant may, from time to time, have its staff and
equipment operate within the Premises on a twenty-four (24) hour-a-day, seven
(7) day-a-week schedule, and Tenant may operate equipment which requires
excess electricity; however, Tenant shall pay for any extra utilities used by
Tenant. Tenant agrees that at all times it will cooperate fully with Landlord
and abide by all regulations and requirements that Landlord may prescribe for
the proper functioning and protection of the building heating, ventilating,
and air conditioning systems. Whenever heat generating machines, equipment,
or any other devices (including exhaust fans) are used in the Premises by
Tenant which affect the temperature or otherwise
9.
maintained by the air conditioning system, Landlord shall have the right to
install supplementary air conditioning units in the Premises and the cost
thereof, including the cost of installation and the cost of operation and
maintenance thereof, shall be paid by Tenant to Landlord upon demand by
Landlord. Tenant will not, without the written consent of Landlord, use any
apparatus or device in the premises (including, without limitation),
electronic data processing machines or machines using current in excess of
110 Volts which will in any way increase the amount of electricity, gas,
water or air conditioning usually furnished or supplied to premises being
used as general office space, or connect with electric current (except
through existing electrical outlets in the Premises), or with gas or water
pipes any apparatus or device for the purposes of using electric current,
gas, or water. If Tenant shall require water, gas, or electric current in
excess of that usually furnished or supplied to premises being used as
general office space, Tenant shall first obtain the written consent of
Landlord, which consent shall not be unreasonably withheld and Landlord may
cause an electric current, gas or water meter to be installed in the Premises
in order to measure the amount of electric current, gas or water consumed for
any such excess use. The cost of any such meter and of the installation,
maintenance and repair thereof, all charges for such excess water, gas and
electric current consumed (as shown by such meters and at the rates then
charged by the furnishing public utility); and any additional expense
incurred by Landlord in keeping account of electric current, gas, or water so
consumed shall be paid by Tenant, and Tenant agrees to pay Landlord therefor
promptly upon demand by Landlord.
12. TAXES.
A. As Additional Rent and in accordance with paragraph 4 D
of this Lease, Tenant shall pay to Landlord Tenant's proportionate share of
all Real Property Taxes, which pro rata share shall be allocated to the
leased Premises by square footage or other equitable basis, as calculated by
Landlord. The term "Real Property Taxes," as used herein, shall mean (i) all
taxes, assessments, levies and other charges of any kind or nature
whatsoever, general and special, foreseen and unforeseen (including all
installments of principal and interest required to pay any general or special
assessments for public improvements and any increases resulting from
reassessments caused by any change in ownership of the Complex) now or
hereafter imposed by any governmental or quasi-governmental authority or
special district having the direct or indirect power to tax or levy
assessments, which are levied or assessed against, or with respect to the
value, occupancy or use of, all or any portion of the Complex (as now
constructed or as may at any time hereafter be constructed, altered, or
otherwise changed) or Landlord's interest therein; any improvements located
within the Complex (regardless of ownership); the fixtures, equipment and
other property of Landlord, real or personal, that are an integral part of
and located in the Complex; or parking areas, public utilities, or energy
within the Complex; (ii) all charges, levies or fees imposed by reason of
environmental regulation or other governmental control of the Complex; and
(iii) all costs and fees (including attorneys' fees) incurred by Landlord in
contesting any Real Property Tax and in negotiating with public authorities
as to any Real Property Tax. If at any time during the term of this Lease the
taxation or assessment of the complex prevailing as of the commencement date
of this Lease shall be altered so that in lieu of or in addition to any Real
Property Tax described above there shall be levied, assessed or imposed
(whether by reason of a change in the method of taxation or assessment,
creation of a new tax or charge, or any other cause) an alternate or
additional tax or charge (i) on the value,
10.
use or occupancy of the Complex or Landlord's interest therein or (ii) on or
measured by the gross receipts, income or rentals for the Complex, on
Landlord's business of leasing the Complex, or computed in any manner with
respect to the operation of the Complex, then any such tax or charge, however
designated, shall be included within the meaning of the term "Real Property
Taxes" for purposes of this Lease. If any Real Property Tax is based upon
property or rents unrelated to the Complex, then only that part of such real
Property Tax that is fairly allocable to the Complex shall be included within
the meaning of the term "Real Property Taxes." Notwithstanding the foregoing,
the term "Real Property Taxes" shall not include estate, inheritance, gift or
franchise taxes of Landlord or the federal or state net income tax imposed on
Landlord's income from all sources.
B. TAXES ON TENANT'S PROPERTY.
(a) Tenant shall be liable for and shall pay ten days
before delinquency, taxes levied against any personal property or trade
fixtures placed by Tenant in or about the Premises. If any such taxes on
Tenant's personal property or trade fixtures are levied against Landlord or
Landlord's property or if the assessed value of the Premises is increased by
the inclusion therein of a value placed upon such personal property or trade
fixtures of Tenant and if Landlord, after written notice to Tenant, pays the
taxes based on such increased assessment, which Landlord shall have the right
to do regardless of the validity thereof, but only under proper protest if
requested by Tenant. Tenant shall upon demand, as the case may be, repay to
Landlord the taxes so levied against Landlord, or the proportion of such
taxes resulting from such increase in the assessment; provided that in any
such event Tenant shall have the right, in the name of Landlord and with
Landlord's full cooperation, to bring suit in any court of competent
jurisdiction to recover the amount of any such taxes so paid under protest,
and any amounts so recovered shall belong to Tenant.
(b) If Tenant improvements in the Premises, whether
installed, and/or paid for by Landlord or Tenant and whether or not affixed
to the real property so as to become a part thereof, are assessed for real
property tax purposes at a valuation higher than the valuation at which
standard office improvements in other space in the Complex are assessed, then
the real property taxes and assessments levied against Landlord or the
Complex by reason of such excess assessed valuation shall be deemed to be
taxes levied against personal property of Tenant and shall be governed by the
provisions of 12Ba above. If the records of the County Assessor are available
and sufficiently detailed to serve as a basis for determining whether said
Tenant improvements are assessed at a higher valuation than standard office
improvements in other space in the Complex, such records shall be binding on
both the Landlord and the Tenant. If the records of the County Assessor are
not available or sufficiently detailed to serve as a basis for making said
determination, the actual cost of construction shall be used.
13. LIABILITY INSURANCE. Tenant, at Tenant's expense, agrees to keep
in force during the term of this Lease a policy of comprehensive public
liability insurance with limits in the amount of $500,000/$1,000,000 for
injuries to or death of persons occurring in, on or about the Premises or the
Complex, and property damage insurance with limits of $500,000. The policy or
policies affecting such insurance, certificates of insurance of which shall
be furnished
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to Landlord, shall name Landlord as additional insureds, and shall insure any
liability of Landlord, contingent or otherwise, as respects acts or omissions
of Tenant, its agents, employees or invitees or otherwise by any conduct or
transactions of any of said persons in or about or concerning the Premises,
including any failure of Tenant to observe or perform any of its obligations
hereunder; shall be issued by an insurance company admitted to transact
business in the State of California; and shall provide that the insurance
effected thereby shall not be canceled, except upon thirty (30) days prior
written notice to Landlord. If, during the term of this Lease, in the
considered opinion of Landlord's Lender, insurance advisor, or counsel, the
amount of insurance described in this paragraph 13 is not adequate, Tenant
agrees to increase said coverage to such reasonable amount as Landlord's
Lender, insurance advisor, or counsel shall deem adequate.
14. TENANT'S PERSONAL PROPERTY INSURANCE AND WORKMANS COMPENSATION
INSURANCE. Tenant shall maintain a policy or policies of fire and property
damage insurance in "all risk" form with a sprinkler leakage endorsement
insuring the personal property, inventory, trade fixtures, and leasehold
improvements within the leased Premises for the full replacement value
thereof. The proceeds from any of such policies shall be used for the repair
or replacement of such items so insured. Tenant shall also maintain a policy
or policies of xxxxxxx'x compensation insurance and any other employee
benefit insurance sufficient to comply with all laws.
15. PROPERTY INSURANCE. Landlord shall purchase and keep in force
and as Additional Rent and in accordance with Paragraph 4D of this Lease,
Tenant shall pay to Landlord (or Landlord's agent) Tenant's proportionate
share (calculated on a square footage or other equitable basis as calculated
by Landlord) of the cost of policy or policies of insurance covering loss or
damage to the Premises and Complex in the amount of the full replacement
value thereof, providing protection against those perils included within the
classification of "all risks" insurance and flood and/or earthquake
insurance, if available, plus a policy of rental income insurance in the
amount of one hundred percent (100%) of twelve (12) months Basic Rent, plus
sums paid as Additional Rent. If such insurance cost is increased due to
Tenant's use of the Premises or the Complex, Tenant agrees to pay to Landlord
the full cost of such increase. Tenant shall have no interest in nor any
right to the proceeds of any insurance procured by Landlord for the Complex.
Landlord and Tenant do each hereby respectively release the other,
to the extent of insurance coverage of the releasing party, from any
liability for loss or damage caused by fire or any of the extended coverage
casualties included in the releasing party's insurance policies, irrespective
of the cause of such fire or casualty; provided, however, that if the
insurance policy of either releasing party prohibits such waiver, then this
waiver shall not take effect until consent to such waiver is obtained. If
such waiver is so prohibited, the insured party affected shall promptly
notify the other party thereof.
16. INDEMNIFICATION. Landlord shall not be liable to Tenant and
Tenant hereby waives all claims against Landlord for any injury to or death
of any person or damage to or destruction of property in or about the
Premises or the Complex by or from any cause
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whatsoever, including, without limitation, gas, fire, oil, electricity or
leakage of any character from the roof, walls, basement or other portion of
the Premises or the Complex but excluding, however the willful misconduct or
negligence of Landlord, its agents, servants, employees, invitees, or
contractors of which negligence Landlord has knowledge and reasonable time to
correct. Except as to injury to persons or damage to property to the extent
arising from the willful misconduct or negligence of Landlord, its agents,
servants, employees, invitees, or contractors, Tenant shall hold Landlord
harmless from and defend Landlord against any and all expenses, including
reasonable attorneys' fees, in connection therewith, arising out of any
injury to or death of any person or damage to or destruction of property
occurring in, on or about the Premises, or any part thereof, from any cause
whatsoever.
17. COMPLIANCE. Tenant, at its sole cost and expense, shall promptly
comply with all laws, statutes, ordinances and governmental rules,
regulations or requirements now or hereafter in effect; with the requirements
of any board of fire underwriters or other similar body now or hereafter
constituted; and with any direction or occupancy certificate issued pursuant
to law by any public officer; provided, however, that no such failure shall
be deemed a breach of the provisions if Tenant, immediately upon
notification, commences to remedy or rectify said failure. The judgment of
any court of competent jurisdiction or the admission of Tenant in any action
against Tenant, whether Landlord be a party thereto or not, that Tenant has
violated any such laws, statute, ordinance or governmental rule, regulation,
requirements, direction or provisions, shall be conclusive of that fact as
between Landlord and Tenant. This paragraph shall not be interpreted as
requiring Tenant to make structural changes or improvements, except to the
extent such changes or improvements are required as a result of Tenant's use
of the Premises. Tenant shall, at its sole cost and expense, comply with any
and all requirements pertaining to said Premises, of any insurance
organization or company, necessary for the maintenance of reasonable fire and
public liability insurance covering the Premises.
18. LIENS. Tenant shall keep the Premises and the Complex free from
any liens arising out of any work performed, materials furnished or
obligation incurred by Tenant. In the event that Tenant shall not, within ten
(10) days following the imposition of such lien, cause the same to be
released of record, Landlord shall have, in addition to all other remedies
provided herein and by law, the right, but no obligation, to cause the same
to be released by such means as it shall deem proper, including payment of
the claim giving rise to such lien. All sums paid by Landlord for such
purpose, and all expenses incurred by it in connection therewith, shall be
payable to Landlord by Tenant on demand with interest at the prime rate of
interest as quoted by the Bank of America.
19. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, transfer, or
hypothecate the leasehold estate under this Lease, or any interest therein,
and shall not sublet the Premises, or any part thereof, or any right or
privilege appurtenant thereto, or suffer any other person or entity to occupy
or use the Premises, or any portion thereof, without, in each case, the prior
written consent of Landlord which consent will not be unreasonably withheld.
As a condition for granting this consent to any assignment, transfer or
subletting, Landlord may require that Tenant agrees to pay to Landlord, as
additional rent, all rents or additional consideration received by Tenant
from its assignees, transferees, or subtenants in excess of the
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rent payable by Tenant to Landlord hereunder. Tenant shall, by thirty (30)
days written notice, advise Landlord of its intent to assign or transfer
Tenant's interest in the Lease or sublet the Premises or any portion thereof
for any part of the term hereof. Within thirty (30) days after receipt of
said written notice, Landlord may, in its sole discretion, elect to terminate
this Lease as to the portion of the Premises described in Tenant's notice on
the date specified in Tenant's notice by giving written notice of such
election to terminate. If no such notice to terminate is given to Tenant
within said thirty (30) day period, Tenant may proceed to locate an
acceptable sublessee, assignee, or other transferee for presentment to
Landlord for Landlord's approval, all in accordance with the terms,
covenants, and conditions of this paragraph 19. If Tenant intends to sublet
the entire Premises and Landlord elects to terminate this Lease, this Lease
shall be terminated on the date specified in Tenant's notice. If, however,
this Lease shall terminate pursuant to the foregoing with respect to less
than all the Premises, the rent, as defined and reserved hereinabove shall be
adjusted on a pro rata basis to the number of square feet retained by Tenant,
and this Lease as so amended shall continue in full force and effect. In the
event Tenant is allowed to assign, transfer or sublet the whole or any part
of the Premises, with the prior written consent of Landlord, no assignee,
transferee or subtenant shall assign or transfer this Lease, either in whole
or in part, or sublet the whole or any part of the Premises, without also
having obtained the prior written consent of Landlord which consent shall not
be unreasonably withheld. A consent of Landlord to one assignment, transfer,
hypothecation, subletting, occupation or use by any other person shall not
release Tenant from any of Tenant's obligations hereunder or be deemed to be
a consent to any subsequent similar or dissimilar assignment, transfer,
hypothecation, subletting, occupation or use by any other person. Any such
assignment, transfer, hypothecation, subletting, occupation or use without
such consent shall be voided and shall constitute a breach of this Lease by
Tenant and shall, at the option of Landlord exercised by written notice to
Tenant, terminate this Lease. The leasehold estate under this Lease shall
not, nor shall any interest therein, be assignable for any purpose by
operation of law without the written consent of Landlord which consent shall
not be unreasonably withheld. As a condition to its consent, Landlord may
require Tenant to pay all expenses in connection with the assignment, and
Landlord may require Tenant's assignee or transferee (or other assignees or
transferees) to assume in writing all of the obligations under this Lease and
for Tenant to remain liable to Landlord under this Lease.
20. SUBORDINATION AND MORTGAGES. In the event Landlord's title or
leasehold interest is now or hereafter encumbered by a deed of trust, upon
the interest of Landlord in the land and buildings in which the demised
Premises are located, to secure a loan from a lender (hereinafter referred to
as "Lender") to Landlord, Tenant shall, at the request of Landlord or Lender,
execute in writing an agreement subordinating its rights under this Lease to
the lien of such deed of trust, or, if so requested, agreeing that the lien
of Lender's deed of trust shall be or remain subject and subordinate to the
rights of Tenant under this Lease. Notwithstanding any such subordination,
Tenant's possession under this Lease shall not be disturbed if Tenant is not
in default and so long as Tenant shall pay all rent and observe and perform
all of the provisions set forth in this Lease.
21. ENTRY BY LANDLORD. Landlord reserves, and shall at all
reasonable times after at least 24 hours notice (except in emergencies) have
the right to enter the Premises to
14.
inspect them: to perform any services to be provided by Landlord hereunder,
to submit the Premises to prospective purchasers, mortgagers or tenants; to
post notices of nonresponsibility; and to alter, improve or repair the
premises and any portion of the Complex, all without abatement of rent; and
may erect scaffolding and other necessary structures in or through the
Premises where reasonably required by the character of the work to be
performed; provided, however that the business of Tenant shall be interfered
with to the least extent that is reasonably practical. For each of the
foregoing purposes, any entry to the Premises obtained by Landlord by any of
said means, or otherwise, shall not under any circumstances be construed or
deemed to be a forcible or unlawful entry into or a detainer of the Premises
or an eviction, actual or constructive, of Tenant from the Premises or any
portion thereof. Landlord shall also have the right at any time to change the
arrangement or location of entrances or passageways, doors and doorways, and
corridors, elevators, stairs, toilets or other public parts of the Complex
and to change the name, number or designation by which the Complex is
commonly known, and none of the foregoing shall be deemed an actual or
constructive eviction of Tenant, or shall entitle Tenant to any reduction of
rent hereunder.
22. BANKRUPTCY AND DEFAULT. The commencement of a bankruptcy action
or liquidation action or reorganization action or insolvency action or an
assignment of or by Tenant for the benefit of creditors, or any similar
action undertaken by Tenant, or the insolvency of Tenant, shall, at
Landlord's option, constitute a breach of this Lease by Tenant. If the
trustee or receiver appointed to serve during a bankruptcy, liquidation,
reorganization, insolvency or similar action elects to reject Tenant's
unexpired Lease, the trustee or receiver shall notify Landlord in writing of
its election within thirty (30) days after an order for relief in a
liquidation action or within thirty (30) days after the commencement of any
action.
Within thirty (30) days after court approval of the assumption of
this Lease, the trustee or receiver shall cure (or provide adequate assurance
to the reasonable satisfaction of Landlord that the trustee or receiver shall
cure) any and all previous defaults under the unexpired Lease and shall
compensate Landlord for all actual pecuniary loss and herein, includes, but
shall not be limited to: (i) assurance of source and payment of rent, and
other consideration due under this Lease; (ii) assurance that the assumption
or assignment of this Lease will not breach substantially any provision, such
as radius, location, use, or exclusivity provision, in any agreement relating
to the above described Premises.
Nothing contained in this section shall affect the existing right of
Landlord to refuse to accept an assignment upon commencement of or in
connection with a bankruptcy, liquidation, reorganization or insolvency
action or an assignment of Tenant for the benefit of creditors or other
similar act. Nothing contained in this Lease shall be construed as giving or
granting or creating an equity in the demised Premises to Tenant. In no event
shall the leasehold estate under this Lease, or any interest therein, be
assigned by voluntary or involuntary bankruptcy proceeding without the prior
written consent of Landlord. In no event shall this Lease or any rights or
privileges hereunder be an asset of Tenant under any bankruptcy, insolvency
or reorganization proceedings.
15.
The failure to perform or honor any covenant, condition or
representation made under this Lease shall constitute default hereunder by
Tenant upon expiration of the appropriate grace period hereinafter provided.
Tenant shall have a period of five (5) days from the date of written notice from
Landlord within which to cure any default in the payment of rental or adjustment
thereto. Tenant shall have a period of thirty (30) days from the date of written
notice from landlord within which to cure any other default under this Lease;
provided, however, that if the nature of Tenant's failure is such that more than
thirty (30) days is reasonably required to cure the same, Tenant shall not be in
default so long as Tenant commences performance within such thirty (30) day
period and thereafter prosecutes the same to completion. Upon an uncured default
of this Lease by Tenant, Landlord shall have the following rights and remedies
in addition to any other rights or remedies available to Landlord at law or in
equity;
(a) The rights and remedies provided for by California Civil
Code Section 1951.2 including but not limited to, recovery of 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 rental loss for the
same period that Tenant proves could be reasonably avoided, as computed
pursuant to subsection (b) of said Section 1951.2. Any proof by Tenant under
subparagraphs (2) and (3) of Section 1951.2 of the California Civil Code of
the amount of rental loss that could be reasonably avoided shall be made in
the following manner: Landlord and Tenant shall each select a licensed real
estate broker in the business of renting property of the same type and use as
the Premises and in the same geographic vicinity. Such two real estate
brokers shall select a third licensed real estate broker, and the three
licensed real estate brokers so selected shall determine the amount of the
rental loss that could be reasonably avoided from the balance of the term of
this Lease after the time of award. The decision of the majority of said
licensed real estate brokers shall be final and binding upon the parties
hereto.
(b) The rights and remedies provided by California Civil
Code Section which allows Landlord to continue to Lease in effect and to
enforce all of its rights and remedies under this Lease, including the right
to recover rent as it becomes due, for so long as Landlord does not terminate
Tenant's right to possession; acts of maintenance or preservation, efforts to
relet the Premises, or the appointment of a receiver upon Landlord's
initiative to protect its interest under this Lease shall not constitute a
termination of Tenant's right to possession.
(c) The right to terminate this Lease by giving notice to
Tenant in accordance with applicable law.
(d) To the extent permitted by law, the right and power to
enter the Premises and remove therefrom all persons and property, to store
such property in a public warehouse or elsewhere at the cost of and for the
account of Tenant, and to sell such property and apply such proceeds
therefrom pursuant to applicable California law. Landlord may from time to
time sublet the Premises or any part thereof for such term or terms (which
may extend beyond the term of this Lease) and at such rent and such other
terms as Landlord in its sole discretion may deem advisable, with the right
to make alterations and repairs to the Premises. Upon each subletting, (i)
Tenant shall be immediately liable to pay Landlord, in addition to
indebtedness other than rent due hereunder, the cost of such subletting,
including, but not limited to,
16.
reasonable attorneys' fees, and any real estate commissions actually paid,
and the cost of such alterations and repairs incurred by Landlord and the
amount, if any, by which the rent hereunder for the period of such subletting
(to the extent such period does not exceed the term hereof) exceeds the
amount to be paid as rent for the Premises for such period or (ii) at the
option of Landlord, rents received from such subletting shall be applied
first to payment of indebtedness other than rent due hereunder from Tenant to
Landlord; second, to the payment of any costs of such subletting and of such
alterations and repairs; third to payment of rent due and unpaid hereunder;
and the residue, if any, shall be held by Landlord and applied in payment of
future rent as the same becomes due hereunder. If Tenant has been credited
with any rent to be received by such subletting under option (i) and such
rent shall not be promptly paid to Landlord by subtenant(s), or if such
rentals received from such subletting under option (ii) during any month be
less than to be paid during the month by Tenant hereunder, Tenant shall pay
any such deficiency to landlord. Such deficiency shall be calculated and paid
monthly. For all purposes set forth in this subparagraph d, no taking
possession of the Premises by Landlord shall be construed as an election on
its part to terminate this Lease unless a written notice of such intention be
given to Tenant. Notwithstanding any such subletting without termination,
Landlord may at any time hereafter elect to terminate this Lease for such
previous breach.
(e) The right to have a receiver appointed for Tenant upon
application by Landlord, to take possession of the Premises and to apply any
rental collected from the Premises and to exercise all other rights and
remedies granted to Landlord pursuant to subparagraph d above.
23. ABANDONMENT. Tenant shall not vacate or abandon the Premises at
any time during the term of this Lease (except that Tenant may vacate so long
as it pays rent, provides an on-site security guard during normal business
hours from Monday through Friday, and otherwise performs its obligations
hereunder) and if Tenant shall abandon, vacate or surrender said Premises, or
be dispossessed by the process of law, or otherwise, any personal property
belonging to Tenant and left on the Premises shall be deemed to be abandoned,
at the option of Landlord, except such property as may be mortgaged to
Landlord.
24. DESTRUCTION. In the event the Premises are destroyed in whole or
in part from any cause, except for routine maintenance and repairs and
incidental damage and destruction caused by vandalism and accidents for which
Tenant is responsible for under Xxxxxxxxx 00, Xxxxxxxx may, at its option:
(a) Rebuild or restore the Premises to their condition prior
to the damage or destruction, or
(b) Terminate this Lease (providing that the Premises is damaged
to the extent of 33-1/3% of the replacement cost).
If Landlord does not give Tenant notice in writing within thirty
(30) days from the destruction of the Premises of its election to either
rebuild or restore them, or to terminate this Lease, Landlord shall be deemed
to have elected to rebuild or restore them, in which event Landlord agrees,
at its expense, promptly to rebuild or restore the Premises to their
condition
17.
prior to the damage or destruction. However, Tenant shall be responsible for
paying one hundred percent (100%) of the insurance deductible, provided the
damage is exclusive to Tenant's Leased Premises; if the damage is
non-exclusive to Tenant's Leased Premises and Tenant did not cause said
damage, Tenant shall pay its pro-rata share of the deductible. Tenant shall
be entitled to a reduction in rent while such repair is being made in the
proportion that the area of the Premises rendered untenantable by such damage
bears to the total area of the Premises. If Landlord initially estimates that
the rebuilding or restoration will exceed one hundred eighty (180) days or if
Landlord does not complete the rebuilding or restoration within one hundred
eighty (180) days following the date of destruction (such period of time to
be extended for delays caused by the fault or neglect of Tenant or because of
Acts of God, acts of subcontractors, or delay of the contractors or
subcontractors due to such causes or other contingencies beyond the control
of Landlord), then Tenant shall have the right to terminate this Lease by
giving fifteen (15) days prior written notice to Landlord. Notwithstanding
anything herein to the contrary, Landlord's obligation to rebuild or restore
shall be limited to the building and interior improvements constructed by
Landlord as they existed as of the commencement date of the Lease and shall
not include restoration of Tenant's trade fixtures, equipment, merchandise,
or any improvements, alterations or additions made by Tenant to the Premises,
which Tenant shall forthwith replace or fully repair at Tenant's sole cost
and expense provided this Lease is not cancelled according to the provisions
above.
Unless this Lease is terminated pursuant to the foregoing
provisions, this Lease shall remain in full force and effect. Tenant hereby
expressly waives the provisions of Section 1932, Subdivision 2, in Section
1933, Subdivision 4 of the California Civil Code.
In the event that the building in which the Premises are situated is
damaged or destroyed to the extent of not less than 33-1/3% of the
replacement cost thereof, Landlord may elect to terminate this Lease, whether
the Premises be injured or not. In the event the destruction of the Premises
is caused by Tenant and Landlord elects not to rebuild as provided for
herein, Tenant shall still pay the deductible portion of Landlord's insurance
proceeds.
25. EMINENT DOMAIN. If all or any part of the Premises shall be
taken by any public or quasi-public authority under the power of eminent
domain or conveyance in lieu thereof, this Lease shall terminate as to any
portion of the Premises so taken or conveyed on the date when title vests in
the condemnor, and Landlord shall be entitled to any and all payment, income,
rent, award, or any interest therein whatsoever which may be paid or made in
connection with such taking or conveyance, and Tenant shall have no claim
against Landlord or otherwise for the value of any unexpired term of this
Lease. Notwithstanding the foregoing paragraph, any compensation specifically
awarded Tenant for loss of business, Tenant's personal property, moving cost
or loss of goodwill, shall be and remain the property of Tenant.
If (i) any action or proceeding is commenced for such taking of the
Premises or any part thereof, or if Landlord is advised in writing by any
entity or body having the right or power of condemnation of its intention to
condemn the premises or any portion thereof, or (ii) any foregoing events
occur with respect to the taking of any space in the Complex not leased
hereby, or if any such spaces so taken or conveyed in lieu of such taking and
Landlord shall decide to
18.
discontinue the use and operation of the Complex, or decide to demolish,
alter or rebuild the Complex, then, in any such events Landlord shall have
the right to terminate this Lease by giving Tenant written notice thereof
within sixty (60) days of the date of receipt of said written advice, or
commencement of said action or proceeding, or taking conveyance, which
termination shall take place as of the first to occur of the last day of the
calendar month next following the month in which such notice is given or the
date on which title to the Premises shall vest in the condemnor.
In the event of such a partial taking or conveyance of the Premises,
if the portion of the Premises taken or conveyed is so substantial that the
Tenant can no longer reasonably conduct its business, Tenant shall have the
privilege of terminating this Lease within sixty (60) days from the date of
such taking or conveyance, upon written notice to Landlord of its intention
so to do, and upon giving of such notice this Lease shall terminate on the
last day of the calendar month next following the month in which such notice
is given, upon payment by Tenant of the rent from the date of such taking or
conveyance to the date of termination.
If a portion of the Premises be taken by condemnation or conveyance
in lieu thereof and neither Landlord nor Tenant shall terminate this Lease as
provided herein, this Lease shall continue in full force and effect as to the
part of the Premises not so taken or conveyed, and the rent herein shall be
apportioned as of the date of such taking or conveyance so that thereafter
the rent to be paid by Tenant shall be in the ratio that the area of the
portion of the Premises not so taken or conveyed bears to the total area of
the Premises prior to such taking.
26. SALE OR CONVEYANCE BY LANDLORD. In the event of a sale or
conveyance of the Complex or any interest therein, by an owner of the
reversion then constituting Landlord, the transferor shall thereby be
released from any further liability upon any of the terms, covenants or
conditions (express or implied) herein contained in favor of Tenant, and in
such event, insofar as such transfer is concerned. Tenant agrees to look
solely to the responsibility of the successor in interest of such transferor
in and to the Complex and this Lease. This Lease shall not be affected by any
such sale or conveyance, and Tenant agrees to attorn to the successor in
interest of such transferor.
27. ATTORNMENT TO LENDER OR THIRD PARTY. In the event the interest
of Landlord in the land and buildings in which the leased Premises are
located (whether such interest of Landlord is a fee title interest or a
leasehold interest) is encumbered by deed of trust, and such interest is
acquired by the lender or any third party through judicial foreclosure or by
exercise of a power of sale at private trustee's foreclosure sale, Tenant
hereby agrees to attorn to the purchaser at any such foreclosure sale and to
recognize such purchaser as the Landlord under this Lease. In the event the
lien of the deed of trust securing the loan from a Lender to Landlord is
prior and paramount to the Lease, this Lease shall nonetheless continue in
full force and effect for the remainder of the unexpired term hereof, at the
same rental herein reserved and upon all the other terms, conditions and
covenants herein contained.
28. HOLDING OVER. Any holding over by Tenant after expiration or
other termination of the term of this Lease with the written consent of
Landlord delivered to Tenant
19.
shall not constitute a renewal or extension of the Lease or give Tenant any
rights in or to the Leased Premises except as expressly provided in this
Lease. Any holding over after the expiration or other termination of the term
of this Lease, with the consent of Landlord, shall be construed to be a
tenancy from month to month, on the same terms and conditions herein
specified insofar as applicable except that the monthly Basic Rent shall be
increased to an amount equal to one hundred fifty percent (150%) of the
monthly Basic Rent required during the last month of the Lease term.
29. CERTIFICATE OF ESTOPPEL. Tenant shall at any time upon not less
than ten (10) days' prior written notice to Landlord execute, acknowledge and
deliver to Landlord a statement in writing (i) certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature
of such modification and certifying that this Lease, as so modified, is in
full force and effect) and the date to which the rent and other charges are
paid in advance, if any, and (ii) acknowledging that there are not, to
Tenant's knowledge, any uncured defaults on the part of Landlord hereunder,
or specifying such defaults, if any, are claimed. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer of the
Premises. Tenant's failure to deliver such statement within such time shall
be conclusive upon Tenant that this Lease is in full force and effect,
without modification except as may be represented by Landlord; that there are
no uncured defaults in Landlord's performance, and that not more than one
month's rent has been paid in advance.
30. CONSTRUCTION CHANGES. It is understood that the description of
the Premises and the location of ductwork, plumbing and other facilities
therein are subject to such minor changes as Landlord or Landlord's architect
determines to be desirable in the course of construction of the Premises, and
no such changes, or any changes in plans for any other portions of the
Complex shall affect this Lease or entitle Tenant to any reduction of rent
hereunder or results in any liability of Landlord to Tenant. Landlord does
not guarantee the accuracy of any drawings supplied to Tenant and
verification of the accuracy of such drawings rests with Tenant.
31. RIGHT OF LANDLORD TO PERFORM. All terms, covenants and
conditions of this Lease to be performed or observed by Tenant shall be
performed or observed by Tenant at Tenant's sole cost and expense and without
any reduction of rent. If Tenant shall fail to pay any sum of money, or other
rent, required to be paid by it hereunder or shall fail to perform any other
term or covenant hereunder on its part to be performed, and such failure
shall continue for five (5) days after written notice thereof by Landlord,
Landlord, without waiving or releasing Tenant from any obligation of Tenant
hereunder, may, but shall not be obligated to, make any such payment or
perform any such other term or covenant on Tenant's part to be performed. All
sums so paid by Landlord and all necessary costs of such performance by
Landlord together with interest thereon at the rate of the prime rate of
interest per annum as quoted by the Bank of America from the date of such
payment or performance by Landlord, shall be paid (and Tenant covenants to
make such payment) to Landlord on demand by Landlord, and Landlord shall have
(in addition to any other right or remedy of Landlord) the same rights and
remedies in the event of nonpayment by Tenant as in the case of failure by
Tenant in the payment of rent hereunder.
20.
32. ATTORNEYS' FEES.
(a) In the event that either Landlord or Tenant should bring
suit for the possession of the Premises, for the recovery of any sum due
under this Lease, or because of the breach of any provision of this Lease, or
for any other relief against the other party hereunder, then all costs and
expenses, including reasonable attorneys' fees, incurred by the prevailing
party therein shall be paid by the other party, which obligation on the part
of the other party shall be deemed to have accrued on the date of the
commencement of such action and shall be enforceable whether or not the
action is prosecuted to judgement.
(b) Should Landlord be named as a defendant in any suit brought
against Tenant in connection with or arising out of Tenant's occupancy
hereunder, Tenant shall pay to Landlord its costs and expenses incurred in
such suit, including a reasonable attorney's fee.
33. WAIVER. The waiver by either part of the other party's failure
to perform or observe any term, covenant or condition herein contained to be
performed or observed by such waiving party shall not be deemed to be a
waiver of such term, covenant or condition or of any subsequent failure to
the party failing to perform or observe the same or any other such item,
covenant or condition therein contained, and no custom or practice which may
develop between the parties hereto during the term hereof shall be deemed a
waiver of, or in any way affect, the right of either party to insist upon
performance and observance by the other party in strict accordance with the
terms hereof.
34. NOTICES. All notices, demands, requests, advices or designations
which may be or are required to be given by either party to the other
hereunder shall be in writing. All notices, demands, requests, advices or
designations by Landlord to Tenant shall be sufficiently given, made or
delivered if personally served on Tenant by leaving the same at the Premises
or if sent by United States certified or registered mail, postage prepaid,
addressed to Tenant at the Premises. All notices, demands, requests, advices
or designations by Tenant to Landlord shall be sent by United States
certified or registered mail, postage prepaid, addressed to Landlord at its
offices at Xxxxx/Xxxxxxxxx, 0000 Xxxxxxx Xxxxxxx Xxxx., Xxxxx 000, Xxxxx
Xxxxx, XX 00000. Each notice, request, demand, advice or designation referred
to in this paragraph shall be deemed received on the date of the personal
service or mailing thereof in the manner herein provided, as the case may be.
35. EXAMINATION OF LEASE. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of or
option for a lease, and this instrument is not effective as a lease or
otherwise until its execution and delivery by both Landlord and Tenant.
36. DEFAULT BY LANDLORD. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord within a
reasonable time, but in no event earlier than thirty (30) days after written
notice by Tenant to Landlord and to the holder of any first mortgage or deed
of trust covering the Premises whose name and address shall have heretofore
been furnished to Tenant in writing, specifying wherein landlord has failed
to perform such obligations; provided, however, that if the nature of
Landlord's obligations is such that more than
21.
thirty (30) days are required for performance, then Landlord shall not be in
default if Landlord commences performance within such thirty (30) day period
and thereafter diligently prosecutes the same to completion.
37. CORPORATE AUTHORITY. If Tenant is a corporation (or a
partnership), each individual executing this Lease on behalf of said
corporation (or partnership) represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of said corporation
(or partnership) in accordance with the by-laws of said corporation (or
partnership in accordance with the partnership agreement) and that this Lease
is binding upon said corporation (or partnership) in accordance with its
terms if Tenant is a corporation, Tenant shall, within thirty (30) days after
execution of this Lease, deliver to Landlord a certified copy of the
resolution of the Board of Directors of said corporation authorizing or
ratifying the execution of this Lease.
38. LIMITATION OF LIABILITY. In consideration of the benefits
accruing hereunder, Tenant and all successors and assigns covenant and agree
that, in the event of any actual or alleged failure, breach or default
hereunder by Landlord:
(i) the sole and exclusive remedy shall be against Landlord
and Landlord's assets;
(ii) no partner of Landlord shall be sued or named as a party
in any suit or action (except as may be necessary to secure jurisdiction of
the partnership);
(iii) no service of process shall be made against any partner
of Landlord (except as may be necessary to secure jurisdiction of the
partnership);
(iv) no partner of Landlord shall be required to answer or
otherwise plead to an service of process;
(v) no judgment will be taken against any partner of Landlord;
(vi) any judgment taken against any partner of Landlord may be
vacated and set aside at any time without hearing;
(vii) no writ of execution will ever be levied against the
assets of any partner of Landlord;
(viii) these covenants and agreements are enforceable both by
landlord and also by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements
shall be applicable to any covenant or agreement either expressly contained
in this Lease or imposed by statute or at common law.
22.
39. MISCELLANEOUS AND GENERAL PROVISIONS.
(a) Tenant shall not, without the written consent of Landlord,
use the name of the building for any purpose other than as the address of the
business conducted by Tenant in the Premises.
(b) This Lease shall in all respects be governed by and
construed in accordance with the laws of the State of California. If any
provision of this Lease shall be invalid, unenforceable or ineffective for
any reason whatsoever, all other provisions hereof shall be and remain in
full force and effect.
(c) The term "Premises" includes the space leased hereby and any
improvements now or hereafter installed therein or attached thereto. The term
"Landlord" or any pronoun used in place thereof includes the plural as well
as the singular and the successors and assigns of Landlord. The term "Tenant"
or any pronoun used in place thereof includes the plural as well as the
singular and individuals, firms, associations, partnerships and corporations,
and their and each of their respective heirs, executors, administrators,
successors and permitted assigns, according to the context hereof, and the
provisions of this Lease shall inure to the benefit of and bind such heirs,
executors, administrators, successors and permitted assigns.
The term "person" includes the plural as well as the singular and
individuals, firms, associations, partnerships and corporations. Words used
in any gender include other genders. If there be more than one Tenant the
obligations of Tenant hereunder are joint and several. The paragraph headings
of this Lease are for convenience of reference only and shall have no effect
upon the construction of any provision hereof.
(d) Time is of the essence of this Lease and of each and all of
its provisions.
(e) At the expiration or earlier termination of this Lease,
Tenant shall execute, acknowledge and deliver to Landlord, within ten (10)
days after written demand from Landlord to Tenant, any quitclaim deed or
other document required by any reputable title company, licensed to operate
in the State of California, to remove the cloud or encumbrance created by
this Lease from the real property of which Tenant's Premises are a part.
(f) This instrument along with any exhibits and attachments
hereto constitutes the entire agreement between Landlord and Tenant relative
to the Premises and this agreement and the exhibits and attachments may be
altered, amended or revoked only by an instrument in writing signed by both
Landlord and Tenant. Landlord and Tenant agree hereby that all prior or
contemporaneous oral agreements between and among themselves and their agents
or representatives relative to the leasing of the Premises are merged in or
revoked by this agreement.
(g) Neither Landlord nor Tenant shall record this Lease or a
short form memorandum hereof without the consent of the other.
23.
(h) Tenant further agrees to execute any amendments required by
a lender to enable Landlord to obtain financing, so long as Tenant's rights
hereunder are not substantially affected.
(i) Paragraphs 43 through 51 are added hereto and are included
as a part of this lease.
(j) Clauses, plats and riders, if any, signed by Landlord and
Tenant and endorsed on or affixed to this Lease are a part hereof.
(k) Tenant covenants and agrees that no diminution or shutting
off of light, air or view by any structure which may be hereafter erected
(whether or not by Landlord) shall in any way affect his Lease, entitle
Tenant to any reduction of rent hereunder or result in any liability of
Landlord to Tenant.
41. BROKERS. Tenant warrants that it had dealings with only the
following real estate brokers or agents in connection with the negotiation of
this Lease: none; and that it knows of no other real estate broker or agent
who is entitled to a commission in connection with this Lease.
42. SIGNS. No sign, placard, picture, advertisement, name or notice
shall be inscribed, displayed or printed or affixed on or to any part of the
outside of the Premises or any exterior windows of the Premises without the
written consent of Landlord first had and obtained and Landlord shall have
the right to remove any such sign, placard, picture, advertisement, name or
notice without notice to and at the expense of Tenant. If Tenant is allowed
to print or affix or in any way place a sign in, on, or about the Premises,
upon expiration or other sooner termination of this Lease, Tenant at Tenant's
sole cost and expense shall both remove such sign and repair all damage in
such a manner as to restore all aspects of the appearance of the Premises to
the condition prior to the placement of said sign.
All approved signs or lettering on outside of doors shall be
printed, painted, affixed or inscribed at the expense of Tenant by a person
approved of by Landlord. Tenant shall not place anything or allow anything to
be placed near the glass of any window, door partition or wall which may
appear unsightly from outside the Premises.
Paragraphs 43 through 51 to Lease Agreement dated September 14, 1994, By and
Between the Xxxx Xxxxxxxxx and Xxxxxxx X. Xxxxx Separate Property Trusts, as
Landlord, and Quantum Effect Design, Inc., a California corporation, as
Tenant for 15,218+/- Square Feet of Space Located at 0000-0 Xxxxx Xxxx.,
Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx.
43. BASIC RENT. In accordance with Paragraph 4(A) herein, the total
aggregate sum of FIVE HUNDRED TWENTY ONE THOUSAND TWO HUNDRED FOUR AND 13/100
DOLLARS ($521,204.13), shall be payable as follows:
24.
On November 15, 1994, the sum of FOUR THOUSAND FIVE HUNDRED
THIRTY THREE AND 33/100 DOLLARS ($4,533.33) shall be due, representing the
rental for the period November 15, 1994 through November 30, 1994.
On December 1, 1994, the sum EIGHT THOUSAND FIVE HUNDRED
AND 00/100 DOLLARS ($8,500.00) shall be due, and a like sum due on the first
day of each month thereafter, through and including May 1, 1995.
On June 1, 1995, the sum TWELVE THOUSAND NINE HUNDRED
THIRTY FIVE AND 30/100 DOLLARS ($12,935.30) shall be due, and a like sum due
on the first day of each month thereafter, through and including May 1, 1998;
or until the entire aggregate sum of FIVE HUNDRED TWENTY ONE THOUSAND TWO
HUNDRED FOUR AND 13/100 DOLLARS ($521,204.13) has been paid.
44. EARLY ENTRY. Tenant and its agents and contractors shall be
permitted to enter the Premises prior to the Commencement Date for the
purpose of installing at Tenant's sole cost and expense, Tenant's trade
fixtures and equipment, telephone equipment, security systems and cabling for
computers. Such entry shall be subject to all of the terms and conditions of
this Lease, except that Tenant shall not be required to pay any Rent on
account thereof. Any entry or installation work by Tenant and its agents in
the Premises pursuant to this Paragraph 44 shall (i) be undertaken at
Tenant's SOLE RISK, (ii) not interfere with or delay Landlord's work in the
Premises, and (iii) not be deemed occupancy or possession of the Premises for
purposes of the Lease. Tenant shall indemnify, defend, and hold Landlord
harmless from any and all loss, damage, liability, expense (including
reasonable attorney's fees), claim or demand of whatsoever character, direct
or consequential, including, but without limiting thereby the generality of
the foregoing, injury to or death of persons and damage to or loss of
property arising out of the exercise by Tenant of any early entry right
granted hereunder. In the event Tenant's work in said Premises delays the
completion of the interior improvements to be provided by Landlord, if any,
or in the event Tenant has not completed the aforementioned installations by
the scheduled Commencement Date, it is agreed between the parties that this
Lease will commence on the scheduled Commencement Date of October 15, 1994
regardless of the construction status of said interior improvements.
45. "AS-IS" BASIS. Subject to Paragraphs 50 and 51, it is hereby
agreed that the Premises leased hereunder is leased strictly on an "as-is"
basis and in its present condition, and in the configuration as shown on
Exhibit B to be attached hereto, and by reference made a part hereof. Except
for those improvements as shown on Exhibit B to be attached hereto, Landlord
shall not be required to make, nor be responsible for any cost, in connection
with any repair, restoration, and/or improvement to the Premises in order for
this Lease to commence. Landlord makes no warranty or representation of any
kind or nature whatsoever as to the condition or repair of the Premises, nor
as to the use or occupancy which may be made thereof.
46. CONSENT. Whenever the consent of one party to the other is
required hereunder, such consent shall not be unreasonably withheld.
25.
47. FIRST RIGHT OF REFUSAL. Provided Tenant is not in default of any
of the terms, covenants, and conditions of this Lease Agreement, Tenant,
during the term of this Lease and subject to the provisions hereinafter
contained, shall have a First Right of Refusal to lease approximately
8,341-plus or minus- square feet of space in the condition and configuration
as shown in Red on the attached Exhibit C, consisting of the remaining second
floor space in which the Leased Premises are located (hereinafter referred to
as ("First Right Space") upon the following terms and conditions:
(a) It is understood that said First Right Space, as of the date
of this Lease, is vacant and unleased. Provided said First Right Space is
vacant and Landlord is not actively negotiating with a third party to lease
said First Right Space, Landlord agrees that Tenant shall have the right to
lease said First Right Space at the Basic Rental Rate of $.85 per square foot
per month for a period through April 30, 1998 and upon the same terms,
covenants, and conditions outlined in this September 14, 1994 Lease Agreement
between Landlord and Tenant.
(b) In the event Landlord receives an offer to lease said First
Right Space from a third party, at a rental and upon terms and conditions
which are satisfactory to Landlord, Landlord shall, prior to executing a
lease agreement with a third party for said First Right Space, offer said
First Right Space to Tenant at the same rental (notwithstanding anything to
the contrary, in no event shall Tenant's Basic Rent be less than the Basic
Rent stated above) and upon the same terms, covenants, and conditions upon
which Landlord is willing to lease to a third party for Tenant's First Right
of Refusal. Tenant shall have three (3) days after receipt of said rental and
terms and conditions in which to accept said rental and terms and conditions
in writing. In the event Tenant rejects or fails to accept said rent, terms
and conditions and execute a lease agreement for said First Right Space at
the rental and upon the terms and conditions so presented by Landlord within
said three (3) day period, Tenant shall have no further First Right of
Refusal and Landlord shall be free to execute a lease with a third party
without further obligation to Tenant with respect to said First Right Space,
and this Lease Agreement dated September 14, 1994 shall continue in full
force and effect for the full remaining term hereof, absent of this Paragraph
47.
(c) INCREASED SECURITY DEPOSIT: In the event Tenant expands the
Leased Premises to include said First Right Space pursuant to this Paragraph
47, Tenant's Security Deposit shall be increased to equal twice the Basic
Rental of the entire Leased Premises, which includes said First Right Space,
due for the last month of the Term (For Example: if the last month's Basic
Rental of the Term is $20,025.15, the revised Security Deposit shall be
$40,050.30 ($20,025.15 per month x 2)).
(d) The First Right of Refusal of Tenant under this Paragraph 47
is granted for Tenant's personal benefit and may not be assigned or
transferred by Tenant. In the event that Landlord consents to a sublease or
assignment under Paragraph 19, the first right granted herein shall be void
and of no force and effect, whether or not Tenant shall have purported to
exercise such first right option prior to such assignment or sublease.
26.
48. OPTION TO EXTEND LEASE FOR THREE (3) YEARS. Provided Tenant is
not in default (pursuant to Paragraph 22 of the Lease, i.e., Tenant has
received notice and any applicable cure period has expired without cure) in
any of the terms, covenants, and conditions of this Lease Agreement, Landlord
hereby grants to Tenant an Option to Extend this Lease Agreement for an
additional three (3) year period upon the following terms and conditions:
(a) Tenant shall give Landlord written notice of Tenant's
exercise of this Option to Extend later than April 30, 1997, in which event
the Lease shall be considered extended for an additional three (3) years upon
the same terms and conditions, absent this Paragraph 48, and subject to the
Basic Rental provisions set forth below. In the event that Tenant fails to
timely exercise Tenant's option as set forth herein in writing, Tenant shall
have no further Option to Extend this Lease, and this Lease shall continue in
full force and effect for the full remaining term hereof, absent of this
Paragraph 48.
(b) In the event Tenant timely exercises Tenant's Option to
Extend as set forth herein, Landlord shall, within fifteen (15) days after
receipt of Tenant's exercise of option, advise Tenant of the Basic Rental
required for the Extended Term of the Lease. Tenant shall have fifteen (15)
days after receipt from the Landlord of said new Basic Rental in which to
accept said new Basic Rental and enter into written documentation confirming
same. In the event Tenant fails to execute said written documentation
confirming said new Basic Rental for the Extended Term of Lease within said
fifteen (15) day period, Tenant shall have no further Option to Extend this
Lease, and this Lease shall continue in full force and effect for the full
remaining term hereof absent of this Paragraph 48, with Landlord having no
further responsibility or obligation to Tenant with respect to Tenant's
Option to Extend.
(c) The option rights of Tenant under this Paragraph 48, and the
Extended Term thereunder, are granted for Tenant's personal benefit and may
not be assigned or transferred by Tenant, either voluntarily or by operation
of law, in any manner whatsoever. In the vent that Landlord consents to a
sublease or assignment under Paragraph 19, the option granted herein and any
Extended Term thereunder shall be void and of no force and effect, whether or
not Tenant shall have purported to exercise such option prior to such
assignment or sublease.
(d) INCREASED SECURITY DEPOSIT: In the event the term of
Tenant's Lease extended pursuant to this Paragraph 48, Tenant's Security
Deposit shall be increased to equal twice the Basic Rental due for the last
month of the Extended Term (for example: if the last month's Basic Rental
during the Extended Term is $15,000.00, the revised Security Deposit shall be
$30,000.00 ($15,000.00 per month x 2)).
49. HAZARDOUS MATERIALS. Landlord and Tenant agree as follows with
respect to the existence or use of "Hazardous Materials" (as defined herein)
on, in, under or about the Premises and real property located beneath said
Premises (hereinafter collectively referred to as the "Property") and the
Complex:
As used herein, the term "Hazardous Materials" shall mean any
hazardous or toxic substance, material or waste which is or becomes subject
to or regulated by any local
27.
governmental authority, the State of California, or the United States
Government. The term "Hazardous Materials" includes, without limitation, any
material or hazardous substance which is (i) listed under Article 9 or
defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of
Title 22 of the California Administrative Code, Division 4, Chapter 30, (ii)
listed or defined as a "hazardous waste" pursuant to the Federal Resource
Conservation and Recovery Act, Section 42 U.S.C. Section 6901 et seq., (iii)
listed or defined as "hazardous substance" pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section
9601 et seq. (42 U.S.C. Section 9601), (iv) petroleum or any derivative of
petroleum, or (v) asbestos.
Subject to the terms of this Paragraph 49, Tenant shall have no
obligation to "clean up," reimburse, release, indemnify, or defend Landlord
with respect to any Hazardous Materials which Tenant (prior to and during the
term of the Lease) or other parties on the Property (during the term of this
Lease) did not store, dispose, or transport in, use, or cause to be on the
Property or the Complex in violation of applicable law.
Tenant will be 100 percent liable and responsible for: (i) any and
all "cleanup" of said Hazardous Materials contamination which Tenant, its
agents, employees, contractors, invitees or its future subtenants and/or
assignees (if any), or other parties on the Property, does store, dispose, or
transport in, use or cause to be on the Property and which Tenant, its
agents, employees, contractors, invitees or its future subtenants and/or
assignees (if any), or other parties on the Property, does store, dispose, or
transport in, use or cause to be on the Complex, and (ii) any claims,
including third party claims, resulting from such Hazardous Materials
contamination. Tenant shall indemnify Landlord and hold Landlord harmless
from any liabilities, demands, costs, expenses and damages, including,
without limitation, attorney fees incurred as a result of any claims
resulting from such Hazardous Materials contamination.
Tenant also agrees not to use or dispose of any Hazardous Materials
on the Property or the Complex without first obtaining Landlord's written
consent. In the event consent is granted by Landlord, Tenant agrees to
complete compliance with governmental regulations, and prior to the
termination of said Lease Tenant agrees to follow the proper closure
procedures and will obtain a clearance from the local fire department and/or
the appropriate city agency. If Tenant uses Hazardous Materials, Tenant also
agrees to install, at Tenant's expense, such Hazardous Materials monitoring
devices as Landlord deems reasonably necessary. It is agreed that the
Tenant's responsibilities related to Hazardous Materials will survive the
termination date of the Lease and that Landlord may obtain specific
performance of Tenant's responsibilities under this Paragraph 49.
50. PUNCH LIST. In addition to and notwithstanding anything to the
contrary in Paragraphs 8 and 45 of this Lease, Tenant shall have sixty (60)
days after the Commencement Date to provide Landlord with a written "punch
list" pertaining to latent defects in the Building and in the interior
improvements constructed by Landlord for Tenant. Landlord shall have sixty
(60) days thereafter (or longer if necessary, provided Landlord is diligently
pursuing the completion of the same) to complete the "punch list" items
without the Commencement Date of the Lease and Tenant's obligation to pay
Rental thereunder being affect. Notwithstanding the
28.
foregoing, a crack in the foundation, or exterior walls that does not
endanger the structural integrity of the building, or which is not
life-threatening, shall not be considered material, nor shall Landlord be
responsible for repair of same. This Paragraph shall be of no force and
effect if Tenant shall fail to give any such notice to Landlord within sixty
(60) days after the commencement of the term of this Lease.
51. MAINTENANCE OF THE PREMISES. In addition to, and notwithstanding
anything to the contrary in Xxxxxxxxx 00, Xxxxxxxx shall maintain the
structural shell, foundation, and roof structure (but not the interior
improvements, roof membrane, or glazing) of the building leased hereunder at
Landlord's cost and expense provided Tenant has not caused such damage, in
which event Tenant shall be responsible for 100 percent of any such costs for
repair or damage so caused by the Tenant. Notwithstanding the foregoing, a
crack in the foundation, or exterior walls that does not endanger the
structural integrity of the building, or which is not life-threatening, shall
not be considered material, nor shall Landlord be responsible for repair of
same.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered
this Lease as of the day and year first above written.
LANDLORD: TENANT:
XXXX XXXXXXXXX SEPARATE PROPERTY QUANTUM EFFECT DESIGN, INC., a California
TRUST corporation
By: \s\ Xxxx Xxxxxxxxx By: \s\ Xxxxxxx Xxxxxx
------------------- -------------------
XXXX XXXXXXXXX, Trustee
XXXXXXX X. XXXXX SEPARATE PROPERTY Title: Chief Operating Officer
TRUST ------------------------
By: \s\ Xxxxxxx X. Xxxxx Type of Print Name: Xxxxxxx Xxxxxx
--------------------- ---------------
XXXXXXX X. XXXXX, Trustee
29.
Park Square 1-3
AMENDMENT NO. 1
TO LEASE
THIS AMENDMENT NO. 1 is made and entered into this 11th day of
February, 1998, by and between XXXX XXXXXXXXX, Trustee, or his Successor
Trustee UTA dated 7/20/77 (XXXX XXXXXXXXX SURVIVOR'S TRUST) (previously known
as the "Xxxx Xxxxxxxxx Separate Property Trust") as amended, and XXXXXXX X.
XXXXX, Trustee, or his Successor Trustee UTA dated 7/20/77 (XXXXXXX X. XXXXX
SEPARATE PROPERTY TRUST) as amended, collectively as LANDLORD, and QUANTUM
EFFECT DESIGN, INC., a California corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated September 14, 1994 Landlord
leased to Tenant approximately 15,218-plus or minus- square feet of that
certain 45,000-plus or minus- square foot building located at 0000-0 Xxxxx
Xxxx., Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx, the details of which are more
particularly set forth in said September 14, 1994 Lease Agreement, and
B. WHEREAS, said Lease was amended by the Commencement Letter dated
December 2, 1994 which changed the Commencement Date of the Lease from
November 15, 1994 to November 24, 1994, and changed the Termination Date from
May 31, 1998 to June 30, 1998, and,
C. WHEREAS, it is now the desire of the parties hereto to amend the
Lease by (i) extending the Term for three years, changing the Termination
Date from June 30, 1998 to June 30, 2001, (ii) amending the Basic Rent
schedule and Aggregate Rent accordingly, (iii) increasing the Security
Deposit required under the Lease, (iv) amending the Management Fee charged to
Tenant, (vii) amending Lease Paragraphs 13 ("Liability Insurance"), 15
("Property Insurance") and 19 ("Assignment and Subletting"), (viii) replacing
Lease Paragraphs 39 ("Limitation of Liability") and 49 ("Hazardous
Materials"), (ix) deleting Lease Paragraphs 47 ("First Right of Refusal") and
48 ("Option to Extend Lease for Three (3) Years") and (x) adding paragraphs
("Authority to Execute") and ("Assessment Credits") to said Lease Agreement
as hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is
hereby acknowledged, and in consideration of the hereinafter mutual promises,
the parties hereto do agree as follows:
1. TERM OF LEASE: It is agreed between the parties that the Term of
said Lease Agreement shall be extended for an additional three (3) year
period, and the Lease Termination Date shall be changed from June 30, 1998 to
June 30, 2001.
2. BASIC RENTAL FOR EXTENDED TERM OF LEASE: The monthly Basic Rental
for the Extended Term of Lease shall be as follows:
On July 1, 1998, the sum of THIRTY THOUSAND FOUR HUNDRED THIRTY-SIX
AND NO/100 DOLLARS ($30,436.00) shall be due, and a like sum due on the first
day of each month thereafter through and including June 1, 1999.
30.
On July 1, 1999, the sum of THIRTY-ONE THOUSAND NINE HUNDRED
FIFTY-SEVEN AND 80/100 DOLLARS ($31,957.80) shall be due, and a like sum due
on the first day of each month thereafter through and including June 1, 2000.
On July 1, 2000, the sum of THIRTY THREE THOUSAND FOUR HUNDRED
SEVENTY NINE AND 60/100 DOLLARS ($33,479.60) shall be due, and a like sum due
on the first day of each month thereafter through and including June 1, 2001.
The Aggregate Basic Rent for the Lease shall be increased by
$1,150,480.80 or from $531,589.43 to $ 1,682,070.23.
3. SECURITY DEPOSIT: Tenant's Security Deposit shall be increased by
$41,088.60, or from $25,870.60 to $66,959.20, payable upon Tenant's execution
of this Amendment No. 1.
4. MANAGEMENT FEE: Beginning July 1, 1998, Tenant shall pay to
Landlord, in addition to the Basic Rent and Additional Rent, a FIXED monthly
management fee ("Management Fee") equal to three percent (3%) of the Basic
Rent due for each month throughout the remaining Lease Term. Tenant shall
remain liable for the five percent (5%) management fee previously charged
against Additional Rent through June 30, 1998.
5. LIABILITY INSURANCE: The liability insurance requirement as
stated in Lease Paragraph 13 ("Liability Insurance") is hereby amended as
follows: "Tenant's liability insurance policy shall be a policy of commercial
general liability insurance with a combined single limit coverage of not less
than Two Million Dollars ($2,000,000.00) per occurrence for injuries to or
death of persons occurring in, on or about the Premises or Complex and
property damage.
6. PROPERTY INSURANCE: Lease Paragraph 15 ("Property Insurance") is
hereby amended to include the following: "Tenant acknowledges that as part of
the cost of insurance policies for the Premises, Tenant is responsible for
the payment of insurance deductibles on insurance claims as they relate to
the Premises".
7. ASSIGNMENT AND SUBLETTING: Lease Paragraph 19 ("Assignment and
Subletting") shall be amended to include the following language:
"Any and all sublease agreement(s) between Tenant and any and all
subtenant(s) (which agreements must be consented to by Landlord, pursuant to
the requirements of this Lease) shall contain the following language:
"If Landlord and Tenant jointly and voluntarily elect, for any reason
whatsoever, to terminate the Master Lease prior to the scheduled Master
Lease termination date, then this Sublease (if then still in effect)
shall terminate concurrently with the termination of the Master Lease.
Subtenant expressly acknowledges and agrees that (1) the voluntary
termination of the Master Lease by Landlord and Tenant and the
resulting termination of this Sublease shall not give Subtenant any
right or power to make any legal or equitable claim against Landlord,
including without limitation any claim for interference with contract
or interference with prospective economic advantage, and (2) Subtenant
hereby
31.
waives any and all rights it may have under law or at equity
against Landlord to challenge such an early termination of the
Sublease, and unconditionally releases and relieves Landlord, and its
officers, directors, employees and agents, from any and all claims,
demands, and/or causes of action whatsoever (collectively, "Claims"),
whether such matters are known or unknown, latent or apparent,
suspected or unsuspected, foreseeable or unforeseeable, which Subtenant
may have arising out of or in connection with any such early
termination of this Sublease. Subtenant knowingly and intentionally
waives any and all protection which is or may be given by Section 1542
of the California Civil Code which provides as follows: "A general
release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release,
which if suspect to exist in his favor at the time of executing the
release, him must have materially affected his settlement with debtor.
The term of this Sublease is therefore subject to early
termination. Subtenant's initials here below evidence (a) Subtenant's
consideration of and agreement to this early termination provision, (b)
Subtenant's acknowledgment that, in determining the net benefits to be
derived by Subtenant under the terms of this Sublease, Subtenant has
anticipated the potential for early termination, and (c) Subtenant's
agreement to the general waiver and release of Claims above.
Initials: Initials:
--------------- --------------
Subtenant Tenant
8. LIMITATION OF LIABILITY. Lease Paragraph 39 ("Limitation of
Liability") shall be deleted and replaced in its entirety by the following:
"39. LIMITATION OF LIABILITY. In consideration of the
benefits accruing hereunder, Tenant and all successors and assigns
covenant and agree that, in the event of any actual or alleged
failure, breach or default hereunder by Landlord:
(i) the sole and exclusive remedy shall be against Landlord's
interest in the Premises leased herein;
(ii) no partner of Landlord shall be sued or named as a party
in any suit or action (except as may be necessary to secure
jurisdiction of the partnership);
(iii) no service of process shall be made against any partner
of Landlord (except as may be necessary to secure jurisdiction of the
partnership);
(iv) no partner of Landlord shall be required to answer or
otherwise plead to any service of process;
(v) no judgment will be taken against any partner of Landlord;
(vi) any judgment taken against any partner of Landlord may be
vacated and set aside at any time without hearing;
32.
(vii) no writ of execution will ever be levied against the
assets of any partner of Landlord;
(viii) these covenants and agreements are enforceable both by
Landlord and also by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and
agreements shall be applicable to any covenant or agreement either
expressly contained in this Lease or imposed by statute or at common
law."
9. HAZARDOUS MATERIALS: Lease Paragraph 49 ("Hazardous Materials")
shall be deleted and replaced in its entirety by the following:
"49. HAZARDOUS MATERIALS: Landlord and Tenant agree as follows with
respect to the existence or use of "Hazardous Materials" (as defined
herein) on, in, under or about the Premises and real property located
beneath said Premises and the common areas of the Complex (hereinafter
collectively referred to as the "Property"):
A. As used herein, the term "Hazardous Materials" shall mean
any material, waste, chemical, mixture or byproduct which is or
hereafter is defined, listed or designated under Environmental Laws
(defined below) as a pollutant, or as a contaminant, or as a toxic or
hazardous substance, waste or material, or any other unwholesome,
hazardous, toxic, biohazardous, or radioactive material, waste,
chemical, mixture or byproduct, or which is listed, regulated or
restricted by any Environmental Law (including, without limitation,
petroleum hydrocarbons or any distillates or derivatives or fractions
thereof, polychlorinated biphenyls, or asbestos). As used herein, the
term "Environmental Laws" shall mean any applicable Federal, State of
California or local government law (including common law), statute,
regulation, rule, ordinance, permit, license, order, requirement,
agreement, or approval, or any determination, judgment, directive, or
order of any executive or judicial authority at any level of Federal,
State of California or local government (whether now existing or
subsequently adopted or promulgated) relating to pollution or the
projection of the environment, ecology, natural resources, or public
health and safety.
B. Tenant shall obtain Landlord's written consent, which may
be withheld in Landlord's discretion, prior to the occurrence of any
Tenant's Hazardous Materials Activities (defined below); provided,
however, that Landlord's consent shall not be required for normal use
in compliance with applicable Environmental Laws of customary household
and office supplies (Tenant shall first provide Landlord with a list of
said materials use), such as mild cleaners, lubricants and copier
toner. As used herein, the term "Tenant's Hazardous Materials
Activities" shall mean any and all use, handling, generation, storage,
disposal, treatment, transportation, discharge, or emission of any
Hazardous Materials on, in, beneath, to, from, at or about the
Property, in connection with Tenant's use of the Property, or by Tenant
or by any of Tenant's agents, employees, contractors, vendors,
invitees, visitors or its future subtenants or assignees. Tenant agrees
that any and all Tenant's Hazardous Materials Activities shall be
conducted in strict, full compliance with applicable Environmental Laws
at Tenant's expense, and shall not result
33.
in any contamination of the Property or the environment. Tenant
agrees to provide Landlord with prompt written notice of any spill or
release of Hazardous Materials at the Property during the term of the
Lease of which Tenant becomes aware, and further agrees to provide
Landlord with prompt written notice of any violation of Environmental
Laws in connection with Tenant's Hazardous Materials Activities of
which Tenant becomes aware. If Tenant's Hazardous Materials Activities
involve Hazardous Materials other than normal use of customary
household and office supplies. Tenant also agrees at Tenant's expense:
(i) to install such Hazardous Materials monitoring, storage and
containment devices as Landlord reasonably deems necessary (Landlord
shall have no obligation to evaluate the need for any such
installation or to require any such installation); (ii) provide
Landlord with a written inventory of such Hazardous Materials,
including an update of same each year upon the anniversary date of
the Commencement Date of thc Lease ("Anniversary Date"); and (iii) on
each Anniversary Date, to retain a qualified environmental consultant,
acceptable to Landlord, to evaluate whether Tenant is in compliance
with all applicable Environmental Laws with respect to Tenant's
Hazardous Materials Activities. Tenant, at its expense, shall submit
to Landlord a report from such environmental consultant which
discusses the environmental consultant's findings within two (2)
months of each Anniversary Date. Tenant, at its expense, shall
promptly undertake and complete any and all steps necessary, and in
full compliance with applicable Environmental Laws, to fully correct
any and all problems or deficiencies identified by the environmental
consultant, and promptly provide Landlord with documentation of all
such corrections.
C. Prior to termination or expiration of the Lease, Tenant, at
its expense, shall (i) properly remove from the Property all Hazardous
Materials which come to be located at the Property in connection with
Tenant's Hazardous Materials Activities; and (ii) fully comply with and
complete all facility closure requirements of applicable Environmental
Laws regarding Tenant's Hazardous Materials Activities, including but
not limited to (x) properly restoring and repairing the Property to the
extent damaged by such closure activities, and (y) obtaining from the
local Fire Department or other appropriate governmental authority with
jurisdiction a written concurrence that closure has been completed in
compliance with applicable Environmental Laws. Tenant shall promptly
provide Landlord with copies of any claims, notices, work plans, data
and reports prepared, received or submitted in connection with any such
closure activities.
D. If Landlord, in its sole discretion, believes that the
Property has become contaminated as a result of Tenant's Hazardous
Materials Activities, Landlord in addition to any other rights it may
have under this Lease or under Environmental Laws or other laws, may
enter upon the Property and conduct inspection, sampling and analysis,
including but not limited to obtaining and analyzing samples of soil
and groundwater, for the purpose of determining the nature and extent
of such contamination. Tenant shall promptly reimburse Landlord for the
costs of such an investigation, including but not limited to reasonable
attorneys' fees Landlord incurs with respect to such investigation,
that discloses Hazardous Materials contamination for which Tenant is
liable under this Lease. Except as may be required of Tenant by
applicable Environmental Laws, Tenant shall not perform any sampling,
testing, or drilling to identify the presence of any Hazardous
Materials at the Property, without Landlord's prior written consent
which may
34.
be withheld in Landlord's discretion. Tenant shall promptly provide
Landlord with copies of any claims, notices, work plans, data and
reports prepared, received or submitted in connection with any
sampling, testing or drilling performed pursuant to the preceding
sentence.
E. Tenant shall indemnify, defend (with legal counsel
acceptable to Landlord, whose consent shall not unreasonably be
withheld) and hold harmless Landlord, its employees, assigns,
successors, successors-in-interest, agents and representatives from and
against any and all claims (including but not limited to third party
claims from a private party or a government authority), liabilities,
obligations, losses, causes of action, demands, governmental
proceedings or directives, fines, penalties, expenses, costs (including
but not limited to reasonable attorneys', consultants' and other
experts' fees and costs), and damages, which arise from or relate to:
(i) Tenant's Hazardous Materials Activities; (ii) releases or
discharges of Hazardous Materials at the Property, which occur during
the Term of this Lease, (iii) any Hazardous Materials contamination
caused by Tenant prior to the Commencement Date of the Lease; or (iv)
the breach of any obligation of Tenant under this Paragraph 49
(collectively, "Tenant's Environmental Indemnification") Tenant's
Environmental Indemnification shall include but is not limited to the
obligation to promptly and fully reimburse Landlord for losses in or
reductions to rental income, and diminution in fair market value of thc
Property. Tenant's Environmental Indemnification shall further include
but is not limited to the obligation to diligently and properly
implement to completion, at Tenant's expense, any and all environmental
investigation, removal, remediation, monitoring, reporting, closure
activities, or other environmental response action (collectively,
"Response Actions"). Tenant shall promptly provide Landlord with copies
of any claims, notices, work plans, data and reports prepared, received
or submitted in connection with any Response Actions.
It is agreed that the Tenant's responsibilities related to Hazardous
Materials will survive the expiration or termination of this Lease and
that Landlord may obtain specific performance of Tenant's
responsibilities under this Paragraph 49."
10. FIRST RIGHT OF REFUSAL: Pursuant to Letter Agreement dated
August 2, 1995, Tenant rejected its First Right of Refusal to lease an
additional 8,341 + square feet; therefore, according to the terms of Lease
Paragraph 47 ("First Right of Refusal"), the parties hereto agree that said
Lease Paragraph 47 is deleted in its entirety and of no further force or
effect.
11. OPTION TO EXTEND LEASE FOR THREE (3) YEARS: The parties hereto
acknowledge and agree that Tenant's Option to Extend the Term of thc Lease
expired on April 30, 1997; therefore, Lease Paragraph 48 ("Option to Extend
Lease for Three (3) Years") is hereby deleted in its entirety and of no
further force or effect.
12. AUTHORITY TO EXECUTE. The parties executing this Agreement
hereby warrant and represent that they arc properly authorized to execute
this Agreement and bind the parties on behalf of whom they execute this
Agreement and to all of the terms, covenants and conditions of this Agreement
as they relate to the respective parties hereto.
35.
13. ASSESSMENT CREDITS: The demised property herein may be subject
to a special assessment levied by the City of Santa Xxxxx as part of an
Improvement District. As a part of said special assessment proceedings (if
any), additional bonds were or may be sold and assessments were or may be
levied to provide for construction contingencies and reserve funds. Interest
shall be earned on such funds created for contingencies and on reserve funds
which will be credited for the benefit of said assessment district. To the
extent surpluses are created in said district through unused contingency
funds, interest earnings or reserve funds, such surpluses shall be deemed thc
property of Landlord. Notwithstanding that such surpluses may be credited on
assessments otherwise due against the Leased Premises, Tenant shall pay to
Landlord, as additional rent if, and at the time of any such credit of
surpluses, an amount equal to all such surpluses so credited. For example: if
(i) the property is subject to an annual assessment of $1,000.00, and (ii) a
surplus of $200.00 is credited towards the current year's assessment which
reduces the assessment amount shown on the property tax xxxx from $1,000.00
to $800.00, Tenant shall, upon receipt of notice from Landlord, pay to
Landlord said $200.00 credit as Additional Rent.
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and
conditions of said September 14, 1994 Lease Agreement shall remain in full
force and effect.
IN W1TNESS WHEREOF, Landlord and Tenant have executed this
Amendment No. 1 to Lease as of the day and year last written below.
LANDLORD: TENANT:
XXXX XXXXXXXXX SURVIVOR'S TRUST QUANTUM EFFECT DESIGN, INC
a California corporation
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxx X. Xxxxx
----------------------------- -------------------------
Xxxx Xxxxxxxxx, Trustee
Date: 3/16/98 Xxxx X. Xxxxx
---------------------------- ----------------------------
Print or Type Name
XXXXXXX X. XXXXX SEPARATE Title: Director, HR
PROPERTY TRUST ----------------------
By /s/ Xxxxxxx X. Xxxxx Date: 3/10/98
----------------------------- -----------------------
Xxxxxxx X. Xxxxx, Trustee
Date: 3/13/98
---------------------------
36.
AMENDMENT NO. 2
TO LEASE
THIS AMENDMENT NO. 2 is made and entered into this 3rd day of
December, 1998, by and between XXXX XXXXXXXXX, Trustee, or his Successor
Trustee UTA dated 7/20/77 (XXXX ARR1LLAGA SURVIVOR'S TRUST) (previously known
as the "Xxxx Xxxxxxxxx Separate Property Trust") as amended, and XXXXXXX X.
XXXXX, Trustee, or his Successor Trustee UTA dated 7/20/77 (XXXXXXX X. XXXXX
SEPARATE PROPERTY TRUST) as amended, collectively as LANDLORD, and QUANTUM
EFFECT DESIGN, INC., a California corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated September 14, 1994 Landlord
leased to Tenant approximately 15,218+ square feet of that certain 45,000+
square foot building located at 0000-0 Xxxxx Xxxx., Xxxxx 000, Xxxxx Xxxxx,
Xxxxxxxxxx, the details of which are more particularly set forth in said
September 14, 1994 Lease Agreement, and
B. WHEREAS, said Lease was amended by the Commencement Letter dated
December 2, 1994 which changed the Commencement Date of the Lease from
November 15, 1994 to November 24, 1994, and changed the Termination Date from
May 31, 1998 to June 30, 1998, and,
C. WHEREAS, said Lease was amended by Amendment No. 1 dated February
11, 1998, which (i) extended the Lease Term for three years, (ii) amended the
Basic Rent schedule, Aggregate Rent and Security Deposit accordingly, (iii)
amended the Management Fee charged to Tenant, (iv) amended Lease Paragraphs
13 ("Liability Insurance"), 15 ("Property Insurance") and 19 ("Assignment and
Subletting"), (v) replaced Lease Paragraphs 39 ("Limitation of Liability")
and 49 ("Hazardous Materials"), (vi) deleted Lease Paragraphs 47 ("First
Right of Refusal") and 48 ("Option to Extend Lease for Three Years"), and
(vii) added paragraphs ("Authority to Execute") and ("Assignment Credits") to
said Lease, and,
D. WHEREAS, it is now the desire of the parties hereto to amend the
Lease by adding paragraphs ("Cross Default") and ("Lease Terms Co-Terminous")
to said Lease Agreement as hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is
hereby acknowledged, and in consideration of the hereinafter mutual promises,
the parties hereto do agree as follows:
1. LEASE TERMS CO-TERMINOUS: It is acknowledged that (i) concurrently
with the execution of this Amendment No. 2, Landlord and Tenant are also
executing a lease agreement dated December 3, 1998 (hereinafter referred to
as the "New Lease") affecting adjacent property located at 0000-0 Xxxxx
Xxxx., Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx and (ii) it is the intention of the
parties that the term of this Lease be co-terminous with the term of the New
Lease such that the terms of both leases expire on the same date; provided,
however, the termination of this Lease
37.
resulting from the terms and conditions stated under Paragraph 22 `Bankruptcy
and Default' (subject to Landlord's option as stated in the respective
leases' "Cross Default' Paragraph) or Paragraph 24 "Destruction" or Paragraph
25 "Eminent Domain" shall not result in a termination of the New Lease,
unless Landlord elects, at its sole and absolute discretion, to terminate
both of the leases.
2. CROSS DEFAULT: As a material part of the consideration for the
execution of the New Lease by Landlord, it is agreed between Landlord and
Tenant that a default under this Lease, or a default under said New Lease
may, at the option of Landlord, be considered a default under both leases, in
which event Landlord shall be entitled (but in no event required) to apply
all rights and remedies of Landlord under the terms of one lease to both
leases including, but not limited to, the right to terminate one or both of
said leases by reason of a default under said New Lease or hereunder.
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and
conditions of said September 14, 1994 Lease Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed
this Amendment No. 2 to Lease as of the day and year last written below.
LANDLORD: TENANT:
XXXX XXXXXXXXX SURVIVOR'S TRUST QUANTUM EFFECT DESIGN, INC.
a California corporation
By: /s/ Xxxx Xxxxxxxxx By: /s/ X. X. Xxxxx
--------------------------- -----------------------------------
Xxxx Xxxxxxxxx, Trustee Xxxx X. Xxxxx, Director, Human Resources
Date: 1/26/99 Date: 1/26/99
------------------------- ---------------------------------
XXXXXXX X. XXXXX SEPARATE
PROPERTY TRUST
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Xxxx X. Xxxxx, Trustee
Date: 1/26/99
-------------------------
38.
AMENDMENT NO. 3
TO LEASE
THIS AMENDMENT NO. 3 is made and entered into this 16th day of
August, 1999, by and between XXXX XXXXXXXXX, Trustee, or his Successor
Trustee UTA dated 7/20/77 (XXXX XXXXXXXXX SURVIVOR'S TRUST) (previously known
as the "Xxxx Xxxxxxxxx Separate Property Trust") as amended, and XXXXXXX X.
XXXXX, Trustee, or his Successor Trustee UTA dated 7/20/77 (XXXXXXX X. XXXXX
SEPARATE PROPERTY TRUST) as amended, collectively as LANDLORD, and QUANTUM
EFFECT DESIGN, INC., A CALIFORNIA CORPORATION, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated September 14, 1994 Landlord
leased to Tenant approximately 15,218+/- square feet of that certain
45,000+/- square foot building located at 0000-0 Xxxxx Xxxx., Xxxxx 000,
Xxxxx Xxxxx, Xxxxxxxxxx, the details of which are more particularly set forth
in said September 14, 1994 Lease Agreement, and
B. WHEREAS, said Lease was amended by the Commencement Letter dated
December 2, 1994 which changed the Commencement Date of the Lease from
November 15, 1994 to November 24, 1994, and changed the Termination Date from
May 31, 1998 to June 30, 1998, and,
C. WHEREAS, said Lease was amended by Amendment No. 1 dated February
11, 1998, which (i) extended the Lease Term for three years, (ii) amended the
Basic Rent schedule, Aggregate Rent and Security Deposit accordingly, (iii)
amended the Management Fee charged to Tenant, (iv) amended Lease Paragraphs
13 ("Liability Insurance"), 15 ("Property Insurance") and 19 ("Assignment and
Subletting"), (v) replaced Lease Paragraphs 39 ("Limitation of Liability")
and 49 ("Hazardous Materials"), (vi) deleted Lease Paragraphs 47 ("First
Right of Refusal") and 48 ("Option to Extend Lease for Three Years"), and
(vii) added paragraphs ("Authority to Execute") and ("Assignment Credits") to
said Lease, and,
D. WHEREAS, said Lease was amended by Amendment No. 2 dated December
3, 1998, which added a "Cross Default" paragraph and "Co-Terminous" paragraph
as related to Tenant's additional leased premises located at 0000-0 Xxxxx
Xxxx., Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx, and
E. WHEREAS, it is now the desire of the parties hereto to amend the
Lease by (i) deleting Paragraph 1 of Amendment No. 2 dated December 3, 1998
("Lease Terms Co-Terminous") and Paragraph 2 of Amendment No. 2 dated
December 3, 1998 ("Cross Default") and (ii) adding a paragraph ("Cross
Default") related to Tenant's additional leased premises located at 0000
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx as hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is
hereby acknowledged, and in consideration of the hereinafter mutual promises,
the parties hereto do agree as follows:
1. TERMINATION OF LEASE FOR 0000-0 XXXXX XXXX.: Subject to the terms of this
Paragraph, it is hereby acknowledged that Tenant's other existing lease with
Landlord for premises located at 0000-0 Xxxxx Xxxx., Xxxxx 000, Xxxxx Xxxxx,
Xxxxxxxxxx ("PSI-4 Lease") as referenced in Paragraph 1 of Amendment No. 2
dated December 3, 1998 ("Lease Terms Co-Terminous") and Paragraph 2 of
Amendment No. 2 dated December 3, 1998 ("Cross Default") is scheduled to
terminate effective October 31, 1999. Therefore, it is agreed between the
parties that Lease Paragraphs 46 ("Lease Terms Co-Terminous") and 47 ("Cross
Default") of this Lease shall be deleted in their entirety and be of no
further force or effect effective as of October 31, 1999. In the event said
PSI-4 Lease does not terminate on October 31, 1999, the parties hereto agree
that the provisions of Paragraph 1 and 2 of Amendment No. 2 shall continue in
full force and effect until the actual termination date of said PSI-4 Lease.
39.
2. CROSS DEFAULT: It is acknowledged that (i) concurrently with the
execution of this Amendment No. 3, Landlord and Tenant are also executing a
lease agreement dated August 18, 1998 (hereinafter referred to as the "New
Premises Lease") affecting property located 0000 Xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxx Xxxxx, Xxxxxxxxxx. As a material part of the consideration for the
execution of the New Premises Lease by Landlord, it is agreed between
Landlord and Tenant that a default under this Lease, or a default under said
New Premises Lease may, at the option of Landlord, be considered a default
under both leases, in which event Landlord shall be entitled (but in no event
required) to apply all rights and remedies of Landlord under the terms of one
lease to both leases including, but not limited to, the right to terminate
one or both of said leases by reason of a default under said New Premises
Lease or hereunder.
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and
conditions of said September 14, 1994 Lease Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this
Amendment No. 3 to Lease as of the day and year last written below.
LANDLORD: TENANT:
XXXX XXXXXXXXX SURVIVOR'S TRUST QUANTUM EFFECT DESIGN, INC.
a California corporation
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------------- -----------------------------
Xxxx Xxxxxxxxx, Trustee Xxxx X. Xxxxx, Director,
Human Resources
Date: 8/30/99 Date: 8/25/99
-------------------------------- ---------------------------
XXXXXXX X. XXXXX SEPARATE PROPERTY
TRUST
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Xxxxxxx X. Xxxxx, Trustee
Date: 8/26/99
--------------------------------
40.
