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EXHIBIT 10.33
[LOGO]
OFFICE LEASE
XXXXXXX STREET PARTNERS, LTD.,
A CALIFORNIA LIMITED PARTNERSHIP
"LANDLORD"
SEEKER SOFTWARE, INC.
A DELAWARE CORPORATION
"TENANT"
Dated for reference purposes as of:
August 7, 1997
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TABLE OF CONTENTS
Page
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BASIC LEASE TERMS
1. PREMISES AND COMMON AREAS LEASED.........................................4
2. TERM.....................................................................7
3. POSSESSION...............................................................8
4. MONTHLY BASIC RENT.......................................................8
5. RENTAL ADJUSTMENT........................................................8
6. SECURITY DEPOSIT.........................................................8
7. USE.....................................................................11
8. PAYMENTS AND NOTICES....................................................12
9. BROKERS.................................................................12
10. HOLDING OVER............................................................12
11. TAXES ON TENANT'S PROPERTY..............................................13
12. CONDITION OF PREMISES...................................................13
13. ALTERATIONS.............................................................13
14. REPAIRS.................................................................15
15. LIENS...................................................................16
16. ENTRY BY LANDLORD.......................................................16
17. UTILITIES AND SERVICES..................................................17
18. INDEMNIFICATION.........................................................18
19. DAMAGE TO TENANT'S PROPERTY.............................................19
20. INSURANCE...............................................................19
21. DAMAGE OR DESTRUCTION...................................................21
22. EMINENT DOMAIN..........................................................22
23. DEFAULTS AND REMEDIES...................................................22
24. ASSIGNMENT AND SUBLETTING...............................................24
25. QUIET ENJOYMENT.........................................................26
26. SUBORDINATION...........................................................26
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27. ESTOPPEL CERTIFICATE....................................................26
28. BUILDING PLANNING.......................................................26
29. RULES AND REGULATIONS...................................................27
30. CONFLICT OF LAWS........................................................27
31. SUCCESSORS AND ASSIGNS..................................................27
32. SURRENDER OF PREMISES...................................................27
33. PROFESSIONAL FEES.......................................................27
34. PERFORMANCE BY TENANT...................................................27
35. MORTGAGE AND SENIOR LESSOR PROTECTION...................................28
36. DEFINITION OF LANDLORD..................................................28
37. WAIVER..................................................................28
38. IDENTIFICATION OF TENANT................................................28
39. PARKING AND TRANSPORTATION..............................................29
40. OFFICE AND COMMUNICATIONS SERVICES......................................30
41. TERMS AND HEADINGS......................................................30
42. EXAMINATION OF LEASE ...................................................30
43. TIME ...................................................................31
44. PRIOR AGREEMENT; AMENDMENTS.............................................31
45. SEPARABILITY............................................................31
46. RECORDING...............................................................31
47. LIMITATION ON LIABILITY ................................................31
48. RIDERS .................................................................31
49. SIGNS ..................................................................31
50. MODIFICATION FOR LENDER.................................................31
51. ACCORD AND SATISFACTION.................................................31
52. FINANCIAL STATEMENTS....................................................32
53. TENANT AS CORPORATION...................................................32
54. NO PARTNERSHIP OR JOINT VENTURE.........................................32
55. AMERICANS WITH DISABILITIES ACT.........................................32
56. HAZARDOUS MATERIALS.....................................................32
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57. ARBITRATION OF DISPUTES.................................................35
58. NOTICES.................................................................36
RIDER NO. 1 TO OFFICE LEASE.................................................37
EXHIBITS
A. OUTLINE OF FLOOR PLAN OF PREMISES.......................................40
B. SITE PLAN...............................................................41
C. WORK LETTER AGREEMENT...................................................42
D. SAMPLE FORM OF NOTICE OF LEASE COMMENCEMENT.............................46
E. SAMPLE FORM OF TENANT ESTOPPEL CERTIFICATE..............................47
F. RULES AND REGULATIONS ..................................................49
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0000 XXXXXXX XXXXXX
BASIC LEASE TERMS
This Office Lease (the "Lease") is made and entered into as of the date
hereinafter set forth between Landlord and Tenant (as such parties are
hereinafter defined). For and in consideration of the payment of all rent to be
paid by Tenant hereunder (including, but not limited to, Tenant's Percentage
Share of Operating Expense and Tenant's Percentage Share of Real Property Taxes
[as hereinafter defined] and of the covenants and agreements hereinafter set
forth to be kept and performed by Tenant, Landlord hereby leases to Tenant the
Premises for the Term beginning on the Commencement Date (as such terms are
hereinafter defined), at the rent and subject to and upon all of the terms and
agreements hereinafter set forth.
The Standard Office Lease Provisions ("Standard Provisions") attached
hereto are incorporated herein by this reference.
1. Landlord: XXXXXXX STREET PARTNERS, LTD.,
A CALIFORNIA LIMITED PARTNERSHIP.
2. Landlord's Address: Copy To:
XXXXXXX STREET PARTNERS, LTD. XXXXXXX STREET PARTNERS, LTD.
Attn: Xxxx X. Xxxxxxxxx Attn: Building Manager
0000 Xxxxx Xxxx Xxxxxx 0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000 Suite 1475
Xxxxxxx, Xxxxxxxxxx 00000
3. Tenant:
SEEKER SOFTWARE, INC., A DELAWARE CORPORATION.
4. Tenant's Address: Copy To:
SEEKER SOFTWARE, INC.
0000 XXXXXXX XXXXXX, XXXXX 0000
XXXXXXX, XX 00000
ATTN:
5. Addresses:
(a) Office Building (b) Multi-Story Parking
and Basement Garage: Facility:
0000 Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx
00000 94612
6. Suite Number: 1600
7. Floor(s) upon which the Premises are located: 16TH FLOOR
8. Premises: Those certain premises defined in Subparagraph 1(a) of
the Standard Provisions.
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9. Site: The parcel or parcels of real property defined in Subparagraph
1(a) of the Standard Provisions.
10. Rentable Square Feet within Premises: FOR THE PURPOSES OF THE
CALCULATION OF MONTHLY BASIC RENT:
MONTHS 1 THROUGH 6 APPROXIMATELY 8,809 RENTABLE SF
THEREAFTER APPROXIMATELY 11,982 RENTABLE SF
11. Landlord's Work: [Intentionally Deleted]
12. Tenant Improvement Allowance: $19.34 PER RENTABLE SQUARE FOOT OF
PREMISES AS MORE PARTICULARLY DEFINED IN EXHIBIT "C".
13. Estimated Commencement Date: OCTOBER 1, 1997
14. Commencement Date: The earlier of the following: (i) the date upon
which the Certificate of Occupancy (or approval for occupancy is given by the
Building Inspector) is issued for the Premises; or (ii) the date upon which the
Landlord's Work has been substantially completed as determined by Landlord's
architect or space planner.
15. Expiration Date: FOUR (4) YEARS FOLLOWING THE COMMENCEMENT DATE.
16. Monthly Basic Rent: YEAR 1 $1.80/RENTABLE SF
YEAR 2 $1.85/RENTABLE SF
YEAR 3 $1.90/RENTABLE SF
YEAR 4 $1.95/RENTABLE SF
17. Operating Expense Stop: THE ACTUAL OPERATING EXPENSES INCURRED IN
CALENDAR YEAR 1998. THE OPERATING EXPENSES WILL BE ADJUSTED FOR THE LARGER OF
ACTUAL LEASING LEVELS OR NINETY-FIVE PERCENT (95%) LEASING LEVELS.
18. Real Property Taxes Stop: THE ACTUAL REAL PROPERTY TAXES INCURRED IN
CALENDAR YEAR 1998. THE BUILDING IS CURRENTLY 100% ASSESSED.
19. Tenant's Percentage Share: APPROXIMATELY 2.63%
20. Security Deposit: TWO (2) MONTH'S BASIC RENT PAYABLE AT LEASE
EXECUTION AS SECURITY DEPOSIT, PLUS THE PREPAYMENT OF THE MONTHLY BASIC RENT FOR
THE INITIAL SIX (6) MONTHS OF THE LEASE TERM ALL PAYABLE AT LEASE EXECUTION.
21. Permitted Use:General Office Use including without limitation,
software development and all legally related uses appropriate for a Class A
office building.
22. Brokers: XXX MYERSIECK OF COLLIERS XXXXXXX INTERNATIONAL IS
RECOGNIZED AS TENANT'S BROKER IN THIS TRANSACTION AND WILL BE PAID A COMMISSION
BY THE LANDLORD PURSUANT TO A LEASING COMMISSION AGREEMENT. LANDLORD IS
REPRESENTED BY XXXX XXXXXXXX AND XXXXX XXXX OF XXXXX & XXXXX AND WILL BE PAID A
COMMISSION BY THE LANDLORD PURSUANT TO A LISTING SERVICES AGREEMENT.
23. Landlord's Construction Representative: XXXXX XXXXXXXX
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24. Tenant's Construction Representative: XXXX XXXXXX
00. Parking: 24 standard automobile parking spaces in the Multi-Story
Parking Facility. ALL PARKING IS OFFERED AT PREVAILING MARKET RATES.
CURRENT MONTHLY RATES: 2353 XXXXXXX VALET PARK$100.00
2353 XXXXXXX SELF PARK
$83.00**
**(PAY FOR 4 MONTHS, GET ONE
MONTH FREE) RATES INCLUDE CITY
OF OAKLAND PARKING TAXES.
26. Riders: 1 through 1 inclusive, which Riders are attached to this
Lease and are incorporated herein by this reference.
27. Lease Year: A period of 12 consecutive calendar months commencing on
the Commencement Date or any anniversary of the Commencement Date.
28. Basement Garage: That certain basement garage defined in
subparagraph 2(a) of the Standard Provisions.
29. Multi-Story Parking Facility: That certain multi-story parking
facility defined in Subparagraph l(a) of the Standard Provisions.
30. Exhibits: A through F inclusive, which Exhibits are attached to this
Lease and are incorporated herein by this reference.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
this 7th day of August, 1997.
TENANT: LANDLORD:
SEEKER SOFTWARE, INC. XXXXXXX STREET PARTNERS, LTD.
a Delaware corporation a California limited partnership
By:_________________________________ By: CHASKOW FOUR ASSOCIATES, LTD.
a California limited partnership
Its:________________________________ its general partner
Print Name:_________________________ By: CHASKOW FOUR,
a California limited partnership
its general partner
By:_________________________________ By: XXXXXX HOLDINGS, INC.
a California corporation
Its:________________________________ its general partner
Print Name:_________________________ By: ________________________________
Xxxx X. Xxxxxxxxx
Vice President
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2101 XXXXXXX
STANDARD OFFICE LEASE PROVISIONS
The following Standard Office Lease Provisions are attached to and are
made a part of that certain Office Lease between Xxxxxxx Street Partners, Ltd.,
a California limited partnership, as Landlord, and Seeker Software, Inc., a
Delaware corporation, as Tenant, dated as of this 7th day of August, 1997.
1. PREMISES AND COMMON AREAS LEASED.
(a) Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord, the premises contained within the suite designated in the Basic
Lease Terms, outlined on the Floor Plan attached hereto and marked Exhibit "A"
(the "Premises"), of that certain twenty story office building ("Office Tower")
and basement garage ("Basement Garage") located at 0000 Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx, "Multi-Story Parking Facility" (exclusive of the YMCA facility)
located at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx. Said Office Tower and the
Basement Garage are collectively referred to as the "Building" and are located
on the parcels of real property (the "Site") described in the legal descriptions
and outlined on the site plans attached hereto and marked Exhibit "X-x". The
Multi-Story Parking Facility is located on the parcels of real property (the
"Parking Site") described in the legal descriptions and outlined on the site
plans attached hereto and marked Exhibit "B-2". The Building, Site, Multi-Story
Parking Facility and Parking Site are collectively referred to as the
"Property". The Premises are to be improved by Landlord with the Landlord's Work
described in Exhibit "C" attached hereto and incorporated herein by this
reference. Said Premises being agreed, for the purposes of this Lease, to have
the number of rentable square feet designated in Paragraph 10 of the Basic Lease
Terms.
The parties hereto agree that said letting and hiring is upon and
subject to the terms, covenants and conditions herein set forth and Tenant
covenants as a material part of the consideration for this Lease to keep and
perform each and all of said terms, covenants and conditions by it to be kept
and performed and that this Lease is made upon the condition of such
performance.
(b) Tenant shall have the nonexclusive right to use in common
with other tenants in the Building and subject to the Rules and Regulations
referred to in Paragraph 30 below, the following areas ("Common Areas")
appurtenant to the Premises.
(i) The common entrances, lobbies, restrooms, elevators,
stairways and accessways, and passageways and serviceways thereto, any the
common pipes, conduits, wires and appurtenant equipment serving the Premises;
(ii) Parking areas (subject to the provisions of Xxxxxxxxx
00 xxxxxxxxxxx), xxxxxxxx, sidewalks, walkways, and driveways appurtenant to the
Building.
(c) Landlord shall make all commercially reasonable efforts to
avoid any action under the provisions of this paragraph which would materially
or unreasonably interfere with Tenant's access to or use of the Premises:
(i) To install, use, maintain, repair and replace pipes,
ducts, conduits, wires and appurtenant meters and equipment for service to other
parts of the Building above the ceiling surfaces, below the floor surfaces,
within the walls and in the central core areas, and to relocate any pipes,
ducts, conduits, wires, and appurtenant meters and equipment included in the
Premises which are located in the Premises or located elsewhere outside the
Premises, and to expand the Building;
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(ii) To make changes to the Common Areas, including,
without limitation, changes in the location, size, shape and number of
driveways, entrances, loading and unloading areas, ingress, egress, direction of
traffic, landscaped areas and walkways and, subject to Paragraph 40, parking
spaces and parking areas;
(iii) To close temporarily any of the Common Areas for
maintenance purposes so long as reasonable access to the Premises remains
available;
(iv) To use the Common Areas while engaged in making
additional improvements, repairs or alterations to the Building, or any portion
thereof,
(v) To do and perform such other acts and make such other
changes in, to or with respect to the Site, Common Areas and Building as
Landlord may, in the exercise of sound business judgment, deem to be
appropriate.
2. TERM.
The term of this Lease shall be for the period commencing on the
Commencement Date, and ending on the Expiration Date designated in Paragraph 15
of the Basic Lease Terms; unless the term hereby demised shall be sooner
terminated as hereinafter provided. The Commencement Date shall be determined in
accordance with the provisions of Paragraph 14 of the Basic Lease Terms and such
date shall be specified in Landlord's Notice of Lease Commencement ("Notice"),
in the form of Exhibit "D" which is attached hereto and is incorporated herein
by this reference, and shall be served upon Tenant as provided in Paragraph 8,
after Landlord delivers or tenders possession of the Premises to Tenant. The
Notice shall be binding upon Tenant unless Tenant objects to the Notice in
writing, served upon Landlord as provided for in Paragraph 8 hereof, within five
(5) business days of Tenant's receipt of the Notice.
3. POSSESSION.
Landlord shall deliver possession of the Premises to Tenant on the
Commencement Date regardless of whether Landlord has completed Landlord's Work
by the Commencement Date. If Landlord has not completed Landlord's Work by the
Commencement Date, Landlord shall provide Tenant, upon the Commencement Date,
with a list of incomplete and/or corrective items, which list shall be approved
and acknowledged by Tenant and which items Landlord shall complete and/or
correct promptly thereafter. Landlord and Tenant agree that if Landlord has not
completed Landlord's Work by the Commencement Date, this Lease shall not be void
or voidable, nor shall Landlord be liable to Tenant for any loss or damage
resulting therefrom; provided, however, in the event any portion of the Premises
is rendered unusable (meaning Tenant is unable to conduct its normal course of
business for physical reasons) by Tenant as a result of Landlord's completion of
Landlord's Work after the Commencement Date, rent shall be abated, commencing on
the Commencement Date, in proportion to the portion of the Premises rendered
unusable, until the portion is again usable by Tenant. Notwithstanding the
forgoing, if Landlord is unable to deliver Premises to Tenant by December 31,
1997 due to delays caused solely by Landlord, Tenant shall have the right to
terminate the Lease.
4. MONTHLY BASIC RENT.
Tenant agrees to pay Landlord as Monthly Basic Rent for the Premises the
Monthly Basic Rent designated in Paragraph 16 of the Basic Lease Terms (subject
to adjustment as hereinafter provided) in advance on the first day of each and
every calendar month during said term. In the event the term of this Lease
commences or ends on a day other than the first day of a calendar month, then
the rental for the first and last months of the Term shall be prorated in the
proportion that the number of days this Lease is in effect during the
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first and last months of the Term bears to thirty (30), and such rental shall be
paid at the commencement of such periods. In addition to said Monthly Basic
Rent, Tenant agrees to pay the amount of the rental adjustments as and when
hereinafter provided in this Lease. Said Monthly Basic Rent, additional rent,
and rental adjustments shall be paid to Landlord, without any prior demand
therefor and without any deduction or offset whatsoever in lawful money of the
United States of America, which shall be legal tender at the time of payment, at
the address of Landlord designated in Paragraph 2 of the Basic Lease Terms or to
such other person or at such other place as Landlord may from time to time
designate in writing. Further, all charges to be paid by Tenant hereunder,
including, without limitation, payments for real property taxes, insurance,
repairs, and parking shall be considered additional rent for the purposes of
this Lease, and the word "rent" in this Lease shall include such additional rent
unless the context specifically or clearly implies that only the Monthly Basic
Rent is referenced.
5. RENTAL ADJUSTMENT.
(a) For the purposes of this Paragraph 5, the following terms are
defined as follows:
Tenant's Percentage Share: Tenant's Percentage Share shall mean
that portion of the total rentable area of the Building (exclusive of parking
areas and based on 456,187 rentable square feet the Building) occupied by Tenant
as set forth as a percentage in Paragraph 19 of the Basic Lease Terms. In the
event the Premises are either reduced or expanded, Tenant's Percentage Share
shall be adjusted to reflect that portion of the total rentable area of the
Building (exclusive of parking areas) occupied by Tenant as fairly determined by
Landlord.
Operating Expense Stop: The meaning given in Paragraph 17 of the
Basic Lease Terms shall apply.
Real Property Taxes Stop: The meaning given in Paragraph 18 of
the Basic Lease Terms shall apply.
Operating Expenses: Operating Expenses shall consist of all
direct costs of operation and maintenance of the Building, the Common Areas and
the Site, as determined by standard accounting practices, calculated assuming
the Building is at least ninety-five percent (95%) leased including the
following costs by way of illustration, but not limitation: water and sewer
charges; the net cost and expense of insurance for which Landlord is responsible
hereunder or which Landlord or any first mortgagee with a lien affecting the
Premises reasonably deems necessary in connection with the operation of the
Building; utilities; janitorial services; security; labor; utilities surcharges,
or any other costs levied, taxed or assessed or imposed by, or at the direction
of, or resulting from statutes or regulations or interpretations thereof,
promulgated by any federal, state, regional, municipal or local government
authority in connection with the use, occupancy, or the collection of revenue of
the Building or the Premises; the cost (amortized on a straight line basis over
the useful life of the applicable capital item together with interest at the
prime rate as quoted in the Wall Street Journal from time to time plus 2% on the
unamortized balance) of (i) any capital improvements made to the Building by the
Landlord after the first year of the term of the Lease that reduce other
Operating Expenses, or made to the Building by Landlord after the date of the
Lease that are required under any governmental law or regulation that was not
applicable to the Building at the time it was constructed, or (ii) replacement
of any building equipment reasonably necessary to enable Landlord to operate the
Building at the same quality levels as prior to the replacement; costs incurred
in the management of the Building if any (including supplies, wages and salaries
of employees used in the management, operation and maintenance of the Building,
and payroll taxes and similar governmental charges with respect thereto,
Building management office rental if said office is located in the Building, and
Landlord's and the property manager's reasonable management fees);
air-conditioning; waste disposal; heating; ventilating; elevator maintenance;
supplies; materials; equipment; tools; except as expressly excluded below,
repair and maintenance of the structural portions of the Building; the plumbing,
heating, ventilating, air-conditioning and
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electrical systems installed or furnished by Landlord; and maintenance, costs of
upkeep and operations of the Basement Garage and common areas; rental of
personal property used in maintenance; costs and expenses of gardening and
landscaping; maintenance of signs (other than Tenant owned signs); audit or
verification fees; and costs and expenses of repairs, resurfacing, repairing,
maintenance, painting, lighting, cleaning, refuse removal, security and similar
items, including appropriate reserves (other than repairs that are capital in
nature, except to the extent expressly permitted hereunder). Operating Expenses
shall not include depreciation, amortization and other non-cash charges (except
as expressly permitted above); real estate brokers' commissions or leasing
agents and other costs related to leasing the Building; interest expense on
Building financing; ground rent; franchise taxes, taxes imposed on (or measured
by) Landlord's income (other than Real Property Taxes and business and parking
taxes imposed by the City and County), and other taxes that do not constitute
Real Property Taxes including, without limitation, estate, succession,
inheritance, profit, capital gains, capitol stock, transfer and income taxes
imposed upon Landlord or the Building; all costs related to renovating or
otherwise altering, improving, decorating or redecorating space for tenants or
other occupants of the Building, or incurred in renovating or otherwise
altering, improving, decorating or redecorating vacant rentable space of the
Building; the cost (including attorneys' fees and disbursements) of any
judgment, settlement, or arbitration award resulting from tort liability; the
cost of defects in the construction, design, or equipping of the Building or the
Building systems (including electrical, plumbing, heating, ventilation, and air
conditioning systems) or with respect to any of the structural components of the
Building; the cost of or expenditures for any repairs in accordance with
Articles 21 and 22 of this Lease (except as provided for in Article 21(e) ; any
Operating Expense related to the Multi-Story Parking Facility or any other
parking facility other than the Basement Garage; attorneys' fees and expenses
which are not related to the operation of the Building; losses covered by
insurance or that are required to be insured against or that are capital in
nature (except as expressly permitted above); expenses reimbursed to Landlord
from Tenant or other tenants of the Building; improvements, alterations,
additions, changes, equipment, replacements, repairs and other items that
constitute capital expenses under generally accepted accounting principles
(except as expressly permitted above); costs of repair, abatement, removal or
clean-up of any Hazardous Materials; and any costs or expenses that are incurred
to make any of Landlord's representations or warranties under this Lease true or
correct.
In the event that the Building is less than ninety-five (95%)
leased, the portion of the Operating Expenses considered variable expenses shall
be adjusted proportionately from their actual amounts to what they would have
been if the Building was 95% leased for the period. Variable costs shall
include: utility costs, janitorial costs, the cost of paper supplies and trash
disposal costs.
Real Property Taxes: Real Property Taxes shall be calculated
assuming the Building is at least ninety-five percent (95%) occupied for any
period during which the Building is less than ninety-five percent (95%) occupied
and shall include any form of assessment, license fee, license tax, business
license fee, commercial rental tax, levy, charge, penalty, tax or similar
imposition, imposed by any authority having the direct power to tax, including
any city, county, state or federal government, or any school, agricultural,
lighting, drainage or other improvement or special assessment district thereof,
as against any legal or equitable interest of Landlord in the Building and/or
the Site of which the Building and Premises form a part, including, but not
limited to, the following:
(i) Any tax on Landlord's "right" to rent or "right" to
other income from the Premises or as against Landlord's business of leasing the
Premises;
(ii) Any assessment, tax, fee, levy or charge in
substitution, partially or totally, of any assessment, tax, fee, levy or charge
previously included within the definition of real estate tax, it being
acknowledged by Tenant and Landlord that Proposition 13 was adopted by the
voters of the State of California in the June, 1978 Election and that
assessments, taxes, fees, levies and charges may be imposed by governmental
agencies for such services as fire protection, street, sidewalk and road
maintenance, refuse removal and for other
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governmental services formerly provided without charge to property owners or
occupants. It is the intention of Tenant and Landlord that all such new or
adjusted assessments, taxes, fees, levies and charges be included within the
definition of "Real Property Taxes" for the purposes of this Lease;
(iii) Any assessment, tax, fee, levy or charge allocable
to or measured by the area of the Premises or the rent payable hereunder,
including, without limitation, any gross income tax or excise tax levied by the
State, city or federal government, or any political subdivision thereof, with
respect to the receipt of such rent, or upon or with respect to the possession,
leasing, operating, management, maintenance, alteration, repair, use or
occupancy by Tenants of the Premises, or any portion thereof,
(iv) [Intentionally Deleted]
(v) Any assessment, tax, fee, levy or charge by any
governmental agency related to any transportation plan, fund or system
instituted within the geographic area of which the Building is a part;
(vi) Reasonable legal, consultants' and other professional
fees, costs and disbursements incurred in connection with proceedings to
contest, determine or reduce real property taxes;
(vii) Any personal property taxes levied on or
attributable to personal property used in connection with the entire Building,
or Common Areas.
Notwithstanding any provision of this Subparagraph 5(a)
expressed or implied to the contrary, "Real Property Taxes" shall not include
Landlords federal or state income, franchise, inheritance or estate taxes.
(b) [Intentionally Deleted)
(c) As soon as reasonably practicable, during each calendar year
during the term of this Lease after the first calendar year of the term of this
Lease, Landlord shall deliver to Tenant statements wherein Landlord shall
estimate the Operating Expenses and Real Property Taxes for the current calendar
year (individually, the "Estimated Operating Expense Statement" and the
"Estimated Real Property Taxes Statement" and sometimes referred to collectively
as the "Estimated Statement"), and the amount by which Tenant's Percentage Share
of the (i) Operating Expenses on account of the operation or maintenance of the
Building is in excess of the Operating Expense Stop and (ii) Real Property Taxes
on account of Tenant's occupation of the Building is in excess of the Real
Property Taxes Stop. Provided, however, if Landlord determines that Tenant's
Percentage Share of the Operating Expenses or Real Property Taxes for such
current calendar year is greater than that set forth in the applicable Estimated
Statement, then Landlord may deliver on the first day of June, September, or
December, as appropriate, a revised Estimated Statement and Tenant shall pay to
Landlord, within ten (10) business days of the delivery of such revised
Estimated Statement, the difference between such revised Estimated Statement for
such item and the original Estimated Statement for such item for the portion of
the current calendar year which has then expired, and Tenant shall pay during
the balance of such current calendar year through February of the succeeding
calendar year a fraction of the balance of such difference as would fully
amortize such excess over the remaining months of the then current calendar year
through and including February of the succeeding calendar year.
(d) If Tenant's Percentage Share of the Operating Expenses or
Real Property Taxes estimated in the applicable Estimated Statement exceeds the
Operating Expense Stop or Real Property Taxes Stop then such excess amount shall
be divided into twelve (12) equal monthly installments and Tenant shall pay to
Landlord, concurrently with the regular monthly rent payment next due following
the receipt of such statement, an amount equal to one (1) monthly installment
multiplied by the number of months from January in
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the calendar year in which said statement is submitted to the month of such
payment, both months inclusive. Subsequent installments shall be paid
concurrently with the regular monthly rent payments for the balance of the
calendar year and shall continue until the next calendar year's Estimated
Statement is rendered.
(e) As soon as reasonably practicable during each succeeding
calendar year during the term of this Lease, Landlord shall deliver to Tenant a
statement ("Actual Statement") wherein Landlord shall state the actual Operating
Expenses and Real Property Taxes for the preceding calendar year. If the Actual
Statement reveals a greater increase in Tenant's Percentage Share of Operating
Expenses and/or Tenant's Percentage Share of Real Property Taxes than was
estimated by Landlord in any Estimated Statement delivered as provided herein,
then within twenty (20) business days following receipt of the Actual Statement
from Landlord, Tenant shall pay a lump sum equal to said total increase over the
Operating Expense Stop and/or Real Property Taxes Stop, less the total of the
monthly installments of increases set forth on the Estimated Statement which
were paid in the previous calendar year.
(f) If, in any calendar year, Tenant's Percentage Share of
Operating Expenses and/or Real Property Taxes is less than the preceding
calendar year, then upon receipt of Landlord's Actual Statement, any overpayment
made by Tenant on the monthly installment basis provided above shall be credited
toward the next monthly rent falling due and the monthly installment of Tenant's
Percentage Share of Operating Expenses and/or Real Property Taxes to be paid
pursuant to the then current Estimated Statement shall be adjusted to reflect
such lower expenses or real property taxes for the most recent calendar year, or
if this Lease has been terminated, such excess shall be credited against any
amount which Tenant owes Landlord pursuant to this Lease, and if such amounts
have been paid, Landlord shall promptly pay such excess to Tenant. Any delay or
failure by Landlord in delivering any estimate or statement pursuant to this
Paragraph shall not constitute a waiver of its right to require an increase in
rent nor shall it relieve Tenant of its obligations pursuant to this Paragraph,
except that Tenant shall not be obligated to make any payments based on such
estimate or statement until ten (10) business days after receipt of such
estimate or statement.
(g) In the event Tenant shall dispute the amount set forth in the
Actual Statement described above; Tenant shall have the right not later than
sixty (60) calendar days following receipt of such Actual Statement to review
Landlord's books and records and such review shall be conducted during the hours
and at the location in the Bay Area designated by Landlord. Tenant shall have
the right not later than ten (10) business days following such review to cause
Landlord's books and records with respect to the preceding calendar year to be
audited by a certified public accountant mutually acceptable to Landlord and
Tenant. If such audit discloses an amount payable by Landlord such amount shall
be credited to Tenant as provided in Subparagraph 5(f) above. If such audit
discloses an amount payable by Tenant to Landlord, Tenant shall pay a lump sum
equal to such amount upon receipt of the results of the audit. If such audit
discloses a liability for further refund by Landlord to Tenant in excess of ten
percent (10%) of the payments previously made by Tenant for such calendar year,
the cost of such audit shall be borne by Landlord; otherwise the cost of such
audit shall be borne by Tenant. If Tenant fails to request an audit within ten
(10) business days following such review, such Actual Statement shall be
conclusively binding upon Landlord and Tenant.
(h) Even though the term has expired and Tenant has vacated the
Premises, when the final determination is made of Tenant's Percentage Share of
Operating Expenses and Tenant's Percentage Share of Real Property Taxes for the
year in which this Lease terminates, and subject to Tenant's audit rights
described above, Tenant shall within twenty (20) business days following the
receipt of the final determination, pay any increase due over the estimated
expense paid and conversely any overpayments made in the event said expenses
decrease immediately shall be rebated by Landlord to Tenant.
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6. SECURITY DEPOSIT.
Tenant has deposited with Landlord the Security Deposit designated in
Paragraph 20 of the Basic Lease Terms. Said deposit shall be held by Landlord as
security 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, Landlord may
(but shall not be required to) use, apply or retain all or any part of this
Security Deposit for the payment of any rent or any other sum in default, or for
the payment of any other amount which Landlord may spend or become obligated to
spend by reason of Tenant's default or to compensate Landlord for any 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
demand therefor, deposit cash with Landlord in an amount sufficient to restore
the Security Deposit to its original amount and Tenant's failure to do so shall
be a 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 Security Deposit. If Tenant shall fully and
faithfully perform every provision of this Lease to be performed by it, the
Security Deposit or any balance thereof shall be returned to Tenant (or at
Landlord's option, to the last assignee of Tenant's interests hereunder) at the
expiration of the Lease term, provided that Landlord may retain the Security
Deposit until such time as any amount due from Tenant in accordance with
Paragraph 4 and 5 hereof has been determined and paid in full. Should Landlord
sell its interest in the Premises during the term hereof or if Landlord deposits
with purchaser thereof the then unappropriated funds deposited by Tenant as
aforesaid, thereupon Landlord shall be discharged from any further liability
with respect to such Security Deposit.
7. USE.
Tenant shall use the Premises for general office purpose including
without limitation software development, and purposes incident thereto, and
shall not use or permit the Premises to be used for any other purpose without
the prior written consent of the Landlord, not to be unreasonably withheld or
delayed). Tenant shall not use or occupy the premises in violation of any
recorded covenants, conditions and restrictions affecting the Site or of any law
or of the Certificate of Occupancy or temporary Certificate of Occupancy issued
for the Building of which the Premises are a part, and shall, upon five (5) days
written notice from Landlord, discontinue any use of the Premises which is
declared by any governmental authority having jurisdiction to be a violation of
any recorded covenants and restrictions affecting the Site or of any law or of
said Certificate of Occupancy or temporary Certificate of Occupancy. Tenant may
not offer shared tenant services, such as but not limited to word processing, to
any unaffiliated tenant in the Building without Landlord's prior written
consent, which consent may be withheld by Landlord at its sole and absolute
discretion. Tenant shall comply with any direction of any governmental authority
having jurisdiction which shall, by reason of the nature of Tenant's use or
occupancy of the Premises, impose any duty upon Tenant or Landlord with respect
to the Premises or with respect to the use or occupation thereof Tenant shall
only be responsible for costs relating to compliance with laws to the extent
caused by Tenant's unique and specific use of the Premises or Tenant's
alterations. Tenant shall not do or knowingly permit anything to be done in or
about the Premises which will in any way obstruct or interfere with the rights
of other tenants or occupants of the Building, or injure or annoy them, or use
or knowingly allow the Premises to be used for any improper, immoral, unlawful
or objectionable purpose, nor shall Tenant cause, maintain or knowingly permit
any nuisance in, or about the Premises. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises and shall keep the Premises in first
class repair and appearance. Landlord reserves the right to prescribe the weight
and position of all safes, files and heavy equipment which Tenant desires to
place in the Premises so as to distribute properly the weight thereof. Tenant
shall be responsible for the cost of all structural engineering required to
determine the structural load of all safes, files and heavy equipment which
Tenant desires to place in the Premises.
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8. PAYMENTS AND NOTICES.
All rents and other sums payable by Tenant to Landlord hereunder shall
be paid to Landlord at the address designated by Landlord in Paragraph 2 of the
Basic Lease Terms above or at such other places as Landlord may hereafter
designate in writing. Any notice required or permitted to be given hereunder
must be in writing and may be given by personal delivery by a recognized
national overnight courier, or by mail, and if given by mail shall be deemed
sufficiently given if sent by registered or certified mail addressed to Tenant
at the Building of which the Premises are a part or if delivered personally to
Tenant at the Premises or to Landlord at both of the addresses designated in
Paragraph 2 of the Basic Lease Terms and shall be deemed delivered upon the
actual receipt of notice. Either party may by written notice to the other
specify a different address for notice purposes. If more than one person or
entity constitutes the "Tenant" under this Lease, service of any notice upon any
one of said persons or entities shall be deemed as service upon all of said
persons or entities.
9. BROKERS.
The parties recognize that the brokers who negotiated this Lease are the
brokers whose names are stated in Paragraph 22 of the Basic Lease Terms, and
agree that Landlord shall be solely responsible for the payment of brokerage
commissions to said brokers, and that Tenant shall have no responsibility
therefor. As part of the consideration for the granting of this Lease, Tenant
represents and warrants to Landlord that to Tenant's knowledge no other broker,
agent or finder negotiated or was instrumental in negotiating or consummating
this Lease and that Tenant knows of no other real estate broker, agent or finder
who is, or might be, entitled to a commission or compensation in connection with
this Lease. Any broker, agent or finder of Tenant whom Tenant has failed to
disclose herein shall be paid by Tenant. Tenant shall hold Landlord harmless
from all damages and indemnify Landlord for all said damages paid or incurred by
Landlord resulting from any claims that may be asserted against Landlord by any
broker, agent or finder undisclosed by Tenant herein.
10. HOLDING OVER.
(a) With Landlord's Consent: If Tenant, with Landlord's written
consent, remains in possession of all or any portion of the Premises after the
Expiration Date or earlier termination (collectively "Termination") of this
lease and if Landlord and Tenant have not executed a written agreement as to the
terms of such holding over, then Tenant's continued occupancy shall be a tenancy
from month to month. With respect to such month to month tenancy, the monthly
rent payable shall be for the first thirty (30) days equal to one hundred and
twenty-five percent (125%) of the Monthly Basic Rent in effect immediately prior
to Expiration Date or earlier termination together with additional rent in the
form of such other payments required of Tenant under the provisions of this
lease including, without limitation, the provisions of Section 5 of this Lease.
Thereafter, the monthly rent payable shall be equal to one hundred and
seventy-five percent (175%) of the Monthly Basic Rent in effect immediately
prior to Expiration Date or earlier termination together with additional rent in
the form of such other payments required of Tenant under the provisions of this
lease including, without limitation, the provisions of Section 5 of this Lease.
(b) Without Landlord's Consent: If Tenant remains in possession
all or any portion of the Premises after the Termination of this Lease without
Landlord's consent, Tenant shall be deemed a tenant at sufferance only. Landlord
and Tenant agree that as to such tenancy at sufferance, the fair market rental
value of the Premises shall be deemed to be One Hundred and Seventy-Five percent
(175%) of the Monthly Basic Rent in effect immediately prior to Termination
together with additional rent in the form of such other payments required of
Tenant under the provisions of this Lease including, without limitation, the
provisions of Section 5 of this Lease (the "Sufferance Xxxx). Tenant shall be
obligated to pay the Sufferance Rent to Landlord until the Premises are
delivered back into Landlord's possession and control. The provisions of this
paragraph are in
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addition to and do not affect Landlord's right of re-entry or any other rights
of Landlord conferred by this Lease or provided by law.
(c) Compliance with Tenant's Obligations as Defined by this
Lease: In the event Tenant remains in possession all or any portion of the
Premises after the Termination of this Lease, with or without Landlord's
consent, such possession by Tenant shall obligate Tenant to satisfy each, all
and every one of the Tenant's obligations under the provisions of this Lease for
the duration of such occupancy the provisions of this Lease shall remain in
effect for the duration of the month to month tenancy.
(d) Indemnity: If Tenant fails to surrender the Premises upon the
Termination of this Lease or remains in possession of the Premises for any
period without Landlord's written consent, Tenant shall indemnify and hold
Landlord harmless from all expense (including reasonable attorneys fees), loss
and liability including without limitation, any claim made by any succeeding
tenant founded on or resulting from such failure to surrender.
11. TAXES ON TENANT'S PROPERTY.
Tenant shall be liable for and shall pay prior to delinquency: (1) all
taxes levied against any personal property or trade fixtures placed by Tenant in
or about the Premises; and (2) any improvements installed in the Premises by
Landlord in excess of the allowance as specified in paragraph 12 of the Basic
Lease Terms; and (3) any Changes (as defined in Section 13 of this Lease. The
matters referred to as items (1), (2) and (3) in the preceding sentence are
collectively referred to as the "Taxable Items". If any such taxes on the
Taxable Items are levied against Landlord or Landlord's property or if the
assessed value of the Premises is increased by the inclusion of a value placed
upon all or any portion of the Taxable Items, Landlord, after written notice to
Tenant, shall have the right, but not the obligation to pay any taxes levied
upon the Taxable Items without regard to the validity of the levy. If Landlord
pays the taxes based upon such assessments and/or increased assessments, Tenant
shall, upon demand, repay to Landlord the taxes levied against Landlord or the
portion of such taxes resulting from such increase in the assessment together
with interest at the rate of two per cent higher than the Bank of America
Reference Rate from the date of advancement until the date of repayment. Tenant,
at Tenant's sole cost and expense, shall have the right to bring suit in
Landlord's name in any court of competent jurisdiction to recover the amount of
any such taxes paid by Landlord. Landlord shall cooperate with respect to such
suit. Tenant will hold Landlord harmless from all cost, loss and expense in
connection with the suit.
12. CONDITION OF PREMISES.
Tenant acknowledges that, except as set forth in this Lease, neither
Landlord nor any agent of Landlord has made any representation or warranty with
respect to the Premises or the Building or with respect to the suitability of
either for the conduct of Tenant's business. The taking of possession of the
Premises by Tenant shall conclusively establish that the Premises and the
Building were at such time in satisfactory condition.
13. ALTERATIONS.
(a) Tenant may, at any time and from time to time during the term
of this Lease, at its sole cost and expense, make alterations, additions,
installations, substitutions, improvements and decorations (hereinafter
collectively called "Changes") in and to the Premises, excluding structural
changes, on the following conditions, and providing such Changes will not result
in a violation of or require a change in the Certificate of Occupancy or
temporary Certificate of Occupancy applicable to the Premises;
(i) The outside appearance, character or use of the
Building shall not be affected, and no Changes shall weaken or impair the
structural strength or, in the reasonable opinion of Landlord,
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materially lessen the value of the Building or create the potential for unusual
expenses to be incurred by Landlord or any future tenant of the Premises upon
the removal of Changes and the restoration of the Premises upon the termination
of this Lease;
(ii) No part of the Building outside of the Premises shall
be physically affected;
(iii) The proper functioning of any of the mechanical,
electrical, sanitary and other service systems or installations of the Building
("Service Facilities") shall not be adversely affected and there shall be no
construction which might materially interfere with Landlord's free access to the
Service Facilities or materially interfere with the moving of Landlord's
equipment to or from the enclosures containing the Service Facilities;
(iv) In performing the work involved in making such
Changes, Tenant shall be bound by and observe all of the conditions and
covenants contained in this Paragraph;
(v) All work shall be done at such times and in such
manner as Landlord from time to time may reasonably designate;
(vi) Tenant shall not be permitted to install and make
part of the Premises or Building any materials, fixtures or articles which are
subject to liens, conditional sales, contracts or chattel mortgages.
(vii) Unless approved in writing by Landlord in accordance
with Section 13(I) below, at the date upon which the term of this Lease shall
end, or the date of any earlier termination of this Lease, Tenant shall on
Landlord's written request restore the Premises to their condition prior to the
making of any Changes permitted by this Paragraph 13, reasonable wear and tear,
casualty and condemnation excepted.
(b) Before proceeding with any Change (exclusive of changes to
items constituting Tenant's personal property) either in excess of $25,000 or
that may effect the structural integrity of or the mechanical systems in the
Building, Tenant shall submit to Landlord plans and specifications for the work
to be done, which shall require Landlord's written approval not to be
unreasonably withheld, conditioned or delayed. Landlord shall have seven (7)
working days to review the proposed Changes and either approve the Changes as
submitted or state its reasons for not approving such Changes.
(c) If the proposed Change requires approval by or notice to the
lessor of a superior lease or the holder of a mortgage, no Change shall be
proceeded with until such approval has been received, or such notice has been
given, as the case may be, and all applicable conditions and provisions of said
superior lease or mortgage with respect to the proposed Change or alteration
have been met or complied with at Tenant's expense; and Landlord, if it approves
the Change, will request such approval or give such notice, as the case may be.
(d) After Landlord's written approval has been sent to Tenant and
the approval by or notice to the lessor of a superior lease or the holder of a
superior mortgage has been received or given, as the case may be, Tenant shall
enter into an agreement for the performance of the work to be done pursuant to
this Paragraph 13 with Landlord's contractor if the work impacts Building
systems or the cost is in excess of $15,000, otherwise by a contractor chosen by
Tenant and reasonably approved by Landlord. All costs and expenses incurred in
connection with Changes shall be paid by Tenant within seven (7) business days
after each billing by Landlord or any such contractor or contractors. Tenant
shall in all cases comply with the provisions of Paragraph 15 hereof in
performing hereunder. If Landlord approves the construction of specific interior
improvements in the Premises by other contractors chosen by Tenant from a list
prepared by Landlord at Tenant's request, then Tenant's contractors shall obtain
on behalf of Tenant and at Tenant's sole cost and expense, (i) all necessary
governmental
19
permits and certificates for the commencement and prosecution of Tenant' s
Changes and for final approval thereof upon completion, and (ii) a completion
and lien indemnity bond, or other surety, satisfactory to Landlord, for the
Changes. In the event Tenant shall request any changes in the work to be
performed after the submission of the plans referred to in this Paragraph 13,
such additional changes shall be subject to the same approvals and notices as
the changes initially submitted by Tenants.
(e) All Changes and the performance thereof shall at all times
comply with (i) all laws, rules, order, ordinances, directions, regulations and
requirements of all governmental authorities, agencies, offices, departments,
bureaus and boards having jurisdiction thereof, (ii) all rules, order,
directions, regulations and requirements of the Pacific Fire Rating Bureau, or
of any similar insurance body or bodies, and (iii) all rules and regulations of
Landlord, and Tenant shall cause Changes to be performed in compliance therewith
and in good and first class workmanlike manner, using materials and equipment at
least equal in quality and class to the original installations of the building.
Changes shall be performed in such manner as not to materially interfere with
the occupancy of any other tenant in the Building nor delay, or impose any
additional expense upon Landlord in construction, maintenance or operation of
the Building, and shall be performed by contractors or mechanics approved by
Landlord and submitted to Tenant pursuant to this Paragraph, who shall
coordinate their work in cooperation with any other work being performed with
respect to the Building. Throughout the performance of Changes, Tenant, at its
expense, shall carry, or cause to be carried, workmen's compensation insurance
in statutory limits, and general liability insurance for any occurrence in or
about the Building, of which Landlord and its managing agent shall be named as
parties insured, in such limits as Landlord may reasonably prescribe, with
insurers reasonably satisfactory to Landlord all in compliance with Paragraph
20(b) hereof,
(f) Tenant further covenants and agrees that any mechanic's lien
filed against the Premises or against the Building for work claimed to have been
done for, or materials claimed to have been furnished to Tenant, will be
discharged by Tenant, by bond or otherwise, within ten (10) days after the
notice of the filing thereof, at the cost and expense of Tenant. All
alterations, decorations, additions or improvements upon the Premises, made by
either party, including (without limiting the generality of the foregoing) all
wallcovering, built-in cabinet work, paneling and the like, shall, unless
Landlord elects otherwise, become the property of Landlord, and shall remain
upon, and be surrendered with the Premises, as a part thereof, at the end of the
term, hereof, except that Landlord may by written notice to Tenant, given at
least thirty (30) days prior to the end of the term, require Tenant to remove
all Changes installed by Tenant, and Tenant shall repair any damage to the
Premises arising from such removal or, at Landlord's option, shall pay to the
Landlord all of Landlord's actual reasonable costs of such removal and repair,
unless approved in writing by Landlord in accordance with Section 13(i) below.
(g) All articles of personal property and all business and trade
fixtures, machinery and equipment, furniture and movable partitions owned by
Tenant or installed by Tenant at its expense in the Premises shall be and remain
the property of Tenant and may be removed by Tenant at any time during the lease
term provided Tenant is not in default hereunder, and provided further that
Tenant shall repair any damage caused by such removal. If Tenant shall fail to
remove all of its effects from said Premises upon termination of this Lease for
any cause whatsoever, Landlord shall choose, and store said effects without
liability to Tenant for loss thereof, and Tenant agrees to pay Landlord upon
demand any and all expenses incurred in such removal, including court costs and
reasonable attorney's fees and storage charges on such effects for any length of
time that the same shall be in Landlord's possession.
(h) Landlord reserves the right at any time and from time to time
without the same constituting an actual or constructive eviction and without
incurring any liability to Tenant therefor or otherwise affecting Tenant's
obligations under this Lease, to make such changes, alterations, additions,
improvements, repairs or replacements in or to the Site or the Building
(including the Premises if required so to do by any law or regulation) and the
fixtures and equipment thereof, as well as in or to the street entrances, halls,
passages and
20
stairways thereof, provided Tenant's access to or use of the Premises is not
materially affected thereby, to change the name by which the Building is
commonly known, as Landlord may deem reasonably necessary or desirable. Nothing
contained in this Paragraph 13 shall be deemed to relieve Tenant of any duty,
obligation or liability of Tenant with respect to making any repair, replacement
or improvement or complying with any law, order or requirement of any government
or other authority and nothing contained in this Paragraph 13 shall be deemed or
construed to impose upon Landlord any obligation, responsibility or liability
whatsoever, for the care, supervision or repair of the Building or any part
thereof other than as otherwise provided in this Lease.
(i) At the time Tenant elects to make any Changes to the
Premises, Tenant shall have the right to notify Landlord in writing of the
proposed Changes and to request that Landlord notify Tenant whether Landlord
will require Tenant to remove the Changes upon expiration or earlier termination
of this Lease. Landlord agrees that if it receives the such written notice from
Tenant, Landlord will notify Tenant in writing, within ten (10) business days
after receiving Tenant's notice as to whether Landlord will waive its rights
herein to require Tenant to remove said Changes upon the expiration or earlier
termination of this Lease.
14. REPAIRS.
(a) By entry hereunder, Tenant accepts the Premises as being in
good and sanitary order, condition and repair. Tenant shall, when and if needed
or whenever requested by Landlord to do so, at Tenant's sole cost and expense,
maintain and make all repairs to the interior of the Premises and every part
thereof, to keep, maintain and preserve the Premises in first class condition,
excepting ordinary wear and tear, and repair. Any such maintenance and repairs
shall be performed by Landlord's contractor, or at Landlord's option, by such
contractor or contractors as Tenant may choose from an approved list to be
submitted by Landlord. All costs and expenses incurred in such maintenance and
repair shall be paid by Tenant within seven (7) business days after billing by
Landlord or such contractor or contractors unless such repair is necessitated by
the act, neglect, fault or omission of any duty of Landlord, its agents,
servants or employees. Tenant shall upon the expiration or sooner termination of
the term hereof surrender the Premises to Landlord in the same condition as when
received, reasonable wear and tear, casualty and condemnation excepted and
subject to Section 13(i) above. Except as set forth in Exhibit "C" herein,
Landlord shall have no obligation to alter, remodel, improve, repair, decorate
or paint the Premises or any part thereof and the parties hereto affirm that
Landlord has made no representations to Tenant respecting the condition of the
Premises or the Building except as specifically herein set forth.
(b) Landlord shall repair and maintain the structural portions of
the Building, including the basic plumbing, heating, ventilating, air
conditioning and electrical systems installed or furnished by Landlord, unless
such maintenance and repairs are caused in part or in whole by the act, neglect,
fault of or omission of any duty by Tenant, its agents, servants, employees or
invitees, in which case Tenant shall pay to Landlord as additional rent, the
actual reasonable cost of such maintenance and repairs. Landlord shall not be
liable for any failure to make any such repairs, or to perform any maintenance
unless such failure shall persist for an unreasonable time after written notice
of the need of such repairs or maintenance is given to Landlord by Tenant.
Except as provided in Paragraph 21 hereof there shall be no abatement of rent
and no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or in or to
fixtures, appurtenances and equipment therein unless such repair is necessitated
by the act, neglect, fault or omission of any duty of Landlord or its agents,
servants or employees, in which case, if Tenant is unable to use the Premises,
or any portion of it, during the period of such repairs, rent shall be abated in
proportion to the portion of the Premises rendered unusable until Tenant is
again able to use the entire Premises . Tenant shall maintain and repair at its
sole cost and expense, and with maintenance contractors approved by Landlord,
all special non-base building facilities installed by or on behalf of Tenant
including but not limited to lavatory, shower, toilet, washbasin and kitchen
facilities and special heating and air conditioning systems, including all
plumbing connected to said facilities or systems,
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15. LIENS.
Tenant shall not permit any mechanic's, materialmen's, or other liens to
be filed against the Multi-Story Parking Facility or the Site or any portion
thereof of which the Premises form a part nor against the Tenant's leasehold
interest in the Premises. Landlord shall have the right at all reasonable times
to post and keep posted on the Premises any notices which it deems necessary for
protection from such liens. If any such liens are filed, Landlord may, without
waiving its rights and remedies based on such breach of Tenant and without
releasing Tenant from any of its obligations, cause such liens to be released by
any means it shall deem proper, including payment in satisfaction of the claim
giving rise to such lien. Tenant shall pay to Landlord at once, upon notice by
Landlord, any sum paid or expense incurred by Landlord to remove such liens,
together with interest at the prime rate as quoted in the Wall Street Journal
from time to time plus 4% from the date of such payment by Landlord.
16. ENTRY BY LANDLORD.
Landlord reserves the right to enter the Premises for purposes of
inspection, maintenance, repair and alteration of the Premises and the Building.
Landlord further reserves the right to enter the Premises to show them to
prospective purchasers or, during the last twelve months of the lease, to
prospective tenants. Except in the case of an emergency, Landlord will restrict
its entry to normal business hours and will provide such advanced notice of the
intended entry as is reasonably possible under the circumstances. Landlord shall
make commercially reasonable efforts to perform all such inspections, showings,
maintenance and repairs expeditiously and shall make commercially reasonable
efforts to minimize interference with Tenant's normal business operations.
Tenant agrees that Landlord and Landlord's manager shall retain a key to all
doors (excluding doors to safes and vaults) in the Premises to facilitate such
access as Landlord may require. Tenant shall not change or add any locks to any
doors in the Premises without Landlord's advance permission. Should Tenant
violate the provisions of the preceding sentence, Landlord shall have the right
to use such means as may be required to gain entry to the Premises and Tenant
shall be responsible for all costs, expenses and repairs required as a result.
No entry by Landlord pursuant to the provisions of this Lease shall be deemed or
construed as a violation of Tenant's right of quiet enjoyment, an eviction of
Tenant or a violation of any other right claimed by Tenant.
17. UTILITIES AND SERVICES.
(a) Landlord agrees, during the Lease term, to furnish to the
Premises during those hours set forth in the Rules and Regulations as defined in
Exhibit "F" hereof, as may be amended in writing by Landlord from time to time
during the term of this Lease and delivered to Tenant, (i) electrical current in
amounts described below, which amounts Landlord and Tenant have specifically
considered and hereby acknowledge as representing the normal demands of general
office space and hereby conclusively deem to represent a reasonable quantity of
electric current for normal lighting and fractional horsepower office machines
for the use as described herein: (ii) heating, ventilation and air conditioning
("HVAC") in amounts consistent with amounts provided for general office space
which, by way of illustration, shall be considered to be HVAC necessary to
provide adequate heating, cooling and ventilation for up to one (1) person per
175 rentable square feet during normal business hours (as more fully described
in the Rules and Regulations) assuming the absence of heat generating equipment
or devices and the absence of an excessive concentration of equipment or devices
which individually would generate a normal amount of heat but together generate
an excessive amount of heat; (iii) standard janitorial service (including
washing of windows with reasonable frequency as determined by Landlord),
generally consistent with janitorial service furnished in other first-class
office buildings in the City of Oakland; (iv) water in reasonable quantities,
reasonableness being determined with reference to the typical usage of office
tenants within the Building for the use as described herein, for lavatory and
drinking purposes not in the Premises and (v) passenger elevator service by
non-attended automatic elevators.
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(b) In its use of the Premises, Tenant shall strictly adhere to
all of the following electric demand and consumption levels:
(i) Tenant's use of electricity shall be consistent with
other tenants in the Building and shall not exceed that of other typical office
tenants in the Oakland Central Business District.
(ii) Except as approved by the Landlord, the Tenant shall
at no time permit the electrical current used in the Premises to violate any
restrictions imposed by any governmental authority, including the requirements
with respect to lighting devices set forth in the California Administrative
Code, Title 24, Part 6, Division T-20, Chapter 2, Subchapter 4.
(iii) If at any time after the Commencement Date, Tenant
requires additional electrical capacity, such additional capacity may result in
the imposition of additional rent to Tenant pursuant to Subparagraph (e) below,
if such additional electrical capacity is available and Landlord in its
reasonable discretion agrees to provide same.
(c) Landlord makes no guarantees or representations to Tenant
that the level of HVAC provided to the Premises pursuant to Subparagraph (a)
above will be adequate for Tenant's business purposes. If (i) Tenant's business
use, or (ii) Tenant's occupancy of the Premises (if such occupancy exceeds one
person per one hundred seventy-five (175) square feet of rentable area),
requires additional HVAC above the level provided for general office space in
the Building or affects the HVAC level otherwise maintained in the Building,
Landlord shall have the right in its sole discretion to install any machinery
and equipment that Landlord reasonably deems necessary to provide Tenant with
additional HVAC or to restore the 14VAC level otherwise maintained in the
Building, including, without limitation, modifications or alterations to the
Building's HVAC system or the installation of a separate HVAC system to service
the Premises.
(d) Landlord shall not be liable for, and Tenant shall not be
entitled to any abatement or reduction of rent by reason of Landlord's failure
to furnish any of the foregoing when such failure is caused by accident,
breakage, repairs, strikes, lockouts or other labor disturbances of any
character, or for any other causes beyond Landlords reasonable control.
(e) If Tenant requires or utilizes more water, HVAC or
electricity than is permitted by the standards set forth above, then such
amounts will conclusively be deemed to be excess usage. Landlord may at its
option (i) require Tenant to pay, as additional rent, the reasonable actual
cost, incurred by Landlord to provide such excess usage, including but not
limited to, any and all costs incurred in connection with the purchase,
installation, operation and maintenance of additional systems and transformers
and any other equipment required to handle such extraordinary capacity and any
and all fees required to governmental authorities resulting from such
extraordinary capacity, or (ii) Landlord shall install separate meter(s) for the
Premises, at Tenant's sole expense, and Tenant shall pay all charges of the
utility providing service.
(f) Landlord may charge as additional rent such reasonable fees
or charges established by Landlord for any additional or unusual janitorial
services required because of the carelessness of Tenant, the nature of Tenant's
business (including the operation of Tenant's business other than from 8:00 a.m.
to 6:00 p.m., Monday through Friday) and the removal of any refuse or rubbish
from the Premises except for discarded material placed in wastepaper baskets and
left for emptying as an incident to Landlord's normal cleaning of the Premises.
Landlord shall have no responsibility for providing janitorial service to any
portion of the Premises used for preparing, selling or consuming food or
beverages, for storage, for a mail room, or for a bathroom, shower, or similar
function. Tenant shall also be responsible for the cost of maintaining
non-standard improvements including but not limited to metallic trim, wood floor
covering, glass panels, partitions, kitchens and executive washrooms in the
Premises.
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(g) Tenant specifically undertakes to install within the Premises
and maintain at Tenant's cost such non-base building standard fire protection
and life safety equipment as required by any governmental authority or insurer,
and if so required, Tenant shall appoint one of Tenant's personnel to coordinate
with the fire protection facilities and personnel of Landlord. With respect to
fire extinguishers, Landlord shall be responsible for the maintenance of fire
extinguishers in the Common Areas only. Tenant shall maintain all fire
extinguishers installed in the Premises by or on behalf of the Tenant.
(h) Landlord shall furnish and replace all Building Standard
Lamps, as defined herein, only. For the purpose of this Lease, Building Standard
Lamps shall be defined as four foot (4') long fluorescent tubes installed in the
building standard 2'x 4', 2-lamp and 3-lamp fixtures. Landlord shall, as an
Operating Expense of the Building, replace non-Building Standard Lamps furnished
at the sole cost of the Tenant.
(i) Without the prior written consent of Landlord, which Landlord
may refuse in its sole discretion, Tenant shall connect no equipment, apparatus,
machine, or other device to any of the Building's systems that would exceed the
design capacity of such systems. Tenant may connect standard office machines
which consume comparable amounts of electricity to the electrical system in the
Premises but only through electrical outlets in the Premises which have been
installed in accordance with the local building codes.
(j) Without the prior written consent of Landlord, which Landlord
may refuse in Landlord's sole discretion, Tenant shall not place or install in
the Premises any machine, equipment, storage, or shelving the weight of which
exceeds the normal load bearing capacity of the floors of the Building. If
Landlord consents to the placement or installation of any such machine,
equipment, storage, or shelving in the Premises which exceeds such weight
allowance, Tenant at its sole expense shall reinforce the floor of the Premises
in the area of such placement or installation, pursuant to plans and
specifications approved by Landlord and otherwise in compliance with Paragraph
13, to the extent necessary to assure that no damage to the Premises or the
Building or weakening of any structural supports will be caused.
18. INDEMNIFICATION.
(a) Tenant's Indemnity. To the fullest extent permitted by law
Tenant hereby agrees to defend, indemnify and hold Landlord harmless against and
from any and all claims arising from Tenant's use of the Premises or the conduct
of its business or from any activity, work, or thing done, permitted or suffered
by Tenant, its agents, contractors, employees or invitees (collectively "Tenant
and its Agents") in or about the Premises or elsewhere, and hereby agrees to
further indemnify and hold harmless Landlord against and from any and all claims
arising from any breach or default in the performance of any obligation on
Tenant's part to be performed under the terms of this Lease, or arising from any
act, neglect, fault or omission of Tenant, or of its agents, employees or
invitees, and from and against all costs, attorneys' fees, expenses and
liabilities incurred in or about such claim or any action or proceeding brought
thereon; [and in case any action or proceeding brought against Landlord by
reason of any such claim] except for Landlord's willful misconduct or negligence
of Landlord or its agents or employees in connection with the Premises, Building
or Site. Tenant, as a material part of the consideration to Landlord, hereby
assumes all risk of damage to property or injury to persons in, upon or about
the Premises caused by the condition of the Premises except that which is caused
by the failure of Landlord to observe any of the terms and conditions of this
Lease and such failure has persisted for an unreasonable period of time after
written notice of such failure.
(b) Landlord's Indemnity. To the fullest extent permitted by law
Landlord hereby agrees to defend, indemnify and hold Tenant harmless against and
from any and all claims arising from Landlord's conduct of its business or from
any activity, work, or thing done, permitted or suffered by Landlord, its
agents, contractors, employees or invitees (collectively Landlord and its
Agents) in or about the Premises, Building or Site , and hereby agrees to
further indemnify and hold harmless Tenant against and from any and all claims
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arising from any breach or default in the performance of any obligation on
Landlord's part to be performed under the terms of this Lease, or arising from
any act, neglect, fault or omission of Landlord, or of its agents, employees or
invitees, and from and against all costs, attorneys' fees, expenses and
liabilities incurred in or about such claim or any action or proceeding brought
thereon; [and in case any action or proceeding brought against Tenant by reason
of any such claim] except for Tenant's willful misconduct or negligence of
Tenant or its agents or employees in connection with the Premises, Building or
Site.
19. DAMAGE TO TENANT'S PROPERTY.
Notwithstanding any other provision of this Lease, Landlord and its
Agents shall have no liability for any injury or damage to Tenant's personal
property resulting from any cause including but not limited to; fire, explosion,
falling plaster, steam, gas, electricity, water or rain which may leak from any
part of the Property or from the pipes, appliances or plumbing works located
within any structure constructed upon the Property or from the roof, street or
sub-surface or from any other place or resulting from dampness or any other
patent or latent cause whatsoever. Landlord and its agents shall have no
liability to Tenant for interference with the light or other rights or benefits
associated with the use of the Premises or the Property. Tenant shall give
prompt notice to Landlord in case of fire or accidents on or in the Property or
of defects in the Property, any structure located upon the Property and all
fixtures and equipment located within the Property.
20. INSURANCE.
(a) Tenant's Insurance. During the term of this lease and any
extension of the term, Tenant at his sole cost and expense shall, obtain,
maintain and keep in full force and effect, the insurance described below with
respect to the Property.
(i) Property insurance covering the risks of physical
damage or loss as provided under the Standard Causes of Loss Form, or other
equivalent form, upon property of every description and kind located in or upon
the Property: (1) owned by Tenant; (2) for which Tenant is legally liable; (3)
installed by or on behalf of Tenant including, without limitation, furniture,
fittings, installations, including tenant improvements and betterments, fixtures
and any other personal property; and (4) all improvements installed by Landlord
within the Premises which are in excess of the allowance as specified in
paragraph 12 of the Basic Lease Terms. All insurance acquired by Tenant pursuant
to the provisions of this paragraph shall be in an amount not less than ninety
percent (90%) of the full replacement cost of the items described as (1) through
(4) above, inclusive. Notwithstanding any other provision of this Lease, in
event of a dispute as to the amount which comprises full replacement cost,
Landlord's decision shall be conclusive.
(ii) A policy of Commercial General Liability Insurance
coverage including personal injury, bodily injury, broad form property damage,
premises/operations, owner's protective coverage, blanket contractual liability,
products and completed operations liability, host liquor liability and
owned/non-owned auto liability, in an amount not less than $2,000,000 per
occurrence. The policy shall name Landlord, Landlord's managing agent and all
lenders secured by the Property ("Lenders") as additional insureds, and shall
also be endorsed to contain the following provision:
"Insurance afforded by this policy for Landlord's benefit
and protection shall be primary with respect to all claims, losses or
liabilities arising out Tenant's use of the Premises or from Tenant's operation.
Any insurance carried by Landlord shall be excess and non contributing."
(iii) Loss of income and extra expense insurance in such
amounts as will reimburse Tenant for direct or indirect loss of earnings
attributable to all perils commonly insured against by prudent tenants or
attributable to prevention of access to the Premises or to the Building as a
result of such perils.
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(iv) Worker's compensation insurance and other insurance
to comply with all applicable regulations.
(v) Any other form or forms of insurance as Landlord may
reasonably require from time to time in form, in amounts and for insurance risks
against which a prudent tenant would protect itself.
(b) Qualified Insurers. All insurance policies required pursuant
to the provisions of this Section shall be maintained with insurers with a
Best's rating of A-VI or better, unless otherwise approved in writing by the
Landlord and in form satisfactory from time to time to Landlord. Tenant will
cause Landlord to receive certificates of insurance on the Landlord's standard
form, or, at Landlord's option, certified copies of each insurance policy and
endorsement (collectively the "Insurance Certifications"). Tenant will deliver
the Insurance Certifications to Landlord as soon as practicable after placing
the required insurance, but in no event later than ten (10) business days after
the Commencement Date. Each insurance policy obtained by Tenant shall include an
endorsement requiring the insurer to notify Landlord and the Lenders in writing
at least thirty (30) days prior to any material change, reduction in coverage,
cancellation, or other termination of the policy.
(c) Insurance Proceeds on Termination. In the event of damage to
or destruction of the Property entitling Landlord to terminate this Lease
pursuant to Paragraph 21 of this Lease, if the Premises have also been damaged,
and if Landlord terminates this Lease, Tenant will immediately pay to Landlord
all of its insurance proceeds, if any, relating to the Landlord's Work and
alterations made by Landlord (but not to Tenant's trade fixtures, equipment,
furniture or other personal property of Tenant) in the Premises. Upon
termination of this Lease, Tenant will deliver to Landlord, in accordance with
the provisions of this Lease, the Landlord's Work, the alterations and the
Premises.
(d) Landlord's Insurance. Throughout the term of this Lease,
Landlord shall insure the Building (excluding any property which Tenant is
obligated to insure pursuant to the provisions of Subparagraph 20(a) above),
which insurance shall be an Operating Expense of the Property and the Site,
against damage by fire and other perils insured under the standard Special
Causes of Loss Form, or other equivalent form, and Commercial General Liability
and Umbrella Liability in such reasonable amounts with such reasonable
deductibles as would be carried by a prudent owner of a similar Class A office
building in Northern California. Landlord may take out and carry any other form
or forms of insurance as it may reasonably determine advisable. In the event
that earthquake insurance is required and not included in Tenant's base year
expenses, the base year expenses shall be adjusted to reflect earthquake
insurance. Notwithstanding any contribution by Tenant to the cost of insurance
premiums, with respect to the Building or any alterations of the Premises, as
provided herein, Tenant acknowledges that it has no right to receive any
proceeds from any such insurance policies carried by Landlord. Landlord shall
use such insurance proceeds in the repair and reconstruction of the Building and
the Premises unless the provisions of Subparagraph 20(c) above shall apply.
Landlord will not carry insurance of any kind on Tenant's furniture or
furnishings, or on any fixtures, equipment, improvements or appurtenances of
Tenant under this Lease; or on any tenant improvements constructed in the
Premises by Landlord in excess of the allowance as specified in paragraph 12 of
the Basic Lease Terms; and Landlord shall not be obligated to repair any damage
thereto or replace the same.
(e) Conditional Waiver. Landlord and Tenant hereby release each
other and their respective Agents from any and all claims or demands of damage,
loss, expense or injury to the Premises, the Property, the furnishings and
fixtures and equipment or inventory or other property of either Landlord or
Tenant in, about or upon the Property, which is caused by or results from perils
or events which are the subject of insurance carried by the parties in force at
the time of such loss; provided, however, that such waiver shall be effective
only to the extent permitted by the insurance covering such loss and to the
extent insurance coverage is not prejudiced thereby. Each party shall cause each
insurance policy it obtains to provide that the insurer waives all right of
recovery by way of subrogation against either party in connection with damage
covered by such policy.
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(f) Compliance with Policy Requirements. Tenant agrees that it
will not keep, use, sell or offer for sale in or upon the Premises any article
which may be prohibited by any insurance policy in force from time to time
covering the Property or any portion of the Property or any personal property
located within the Property (collectively the "Insured Property"). Tenant shall
not do or permit to be done anything which will invalidate or increase the cost
of any insurance covering the "Insured Property" and shall comply with all
rules, orders, regulations and requirements of the Pacific Fire Rating bureau or
any other organization performing a similar function. In the event Tenant's
occupancy or conduct of business in or on the Premises, whether or not Landlord
has consented to the same, results in any increase in premiums for the insurance
carried from time to time by Landlord with respect to the Insured Property,
Tenant shall pay any such increase in premiums as additional rent within ten
(10) days after being billed therefor by Landlord. In determining whether
increased premiums are a result of Tenant's use or occupancy of the Premises, a
schedule issued by the organization computing the insurance rate on the Insured
Property or the Landlord's Work showing the various components of such rate,
shall be conclusive evidence of the several items and charges which make up such
rate. Tenant shall promptly comply with all requirements of the insurance
authority or of any insurer now or hereafter in effect relating to the Insured
Property.
(g) Cure of Matters Negatively Impacting Insurance Coverage. If
any insurance policy carried by Landlord, as provided by Subparagraph 20(d)
above, shall be canceled or cancellation shall be threatened or the coverage
thereunder reduced or threatened to be reduced, in any way by reason of the use
or occupation of the Premises or any part thereof by Tenant or by any assignee
or sub-tenant or Tenant or by anyone permitted by Tenant to be upon the Premises
and, if Tenant fails to remedy the condition giving rise to cancellation,
threatened cancellation or reduction of coverage within forty-eight (48) hours
after notice thereof, Tenant shall be in default of its obligations hereunder
and Landlord may, at its option, either terminate this Lease or enter upon the
Premises and attempt to remedy such condition and Tenant shall forthwith pay the
cost thereof to Landlord as additional rent. Landlord shall not be liable for
any damage or injury caused to any property of Tenant or of others located in
the Premises as a result of such entry. In the event that Landlord shall be
unable to remedy such condition, then Landlord shall have all of the remedies
provided for in this Lease in the event of a default by Tenant. In no event
shall Landlord be obligated to attempt to remedy such default.
(h) Ownership. Nothing in this Section shall be construed as
affecting the ownership or right to possession of fixtures, personal property,
the Landlord's Work or other tenant improvements constructed in the Premises by
Landlord in excess of the allowance as specified in paragraph 12 of the Basic
Lease Terms.
21. DAMAGE OR DESTRUCTION.
(a) In the event the Building and/or the Premises or any insured
alterations are damaged by fire or other perils covered by Landlord's extended
coverage insurance to an extent not exceeding twenty-five percent (25%) of the
full insurable value thereof and if the damage thereto is such that the Building
and/or the Premises and any insured alterations may be repaired, reconstructed
or restored within a period of one-hundred eighty (180) days from the date of
the happening of such casualty and Landlord will receive insurance proceeds
sufficient to cover the cost of such repairs, Landlord shall commence and
proceed diligently with the work or repair, reconstruction and restoration and
the Lease shall continue in full force and effect. If such work or repair,
reconstruction and restoration is such as to require a period longer than
one-hundred eighty (180) days or exceeds twenty-five (25%) of the full insurable
value thereof, or if said insurance proceeds will not be sufficient to cover the
cost of such repairs, Landlord either may elect to so repair, reconstruct or
restore the Building and/or Premises and any insured alterations and the Lease
shall continue in full force and effect or Landlord may elect not to repair,
reconstruct or restore the Building and/or Premises and any insured alterations
and the Lease shall in such event terminate, provided, however, if the Premises
are damaged to the extent that costs to repair exceed 50% or more of the
replacement cost of the Building, either Landlord or Tenant may terminate this
Lease. Under any of the conditions of this Subparagraph 21(a), Landlord shall
give written notice to Tenant of its intention
27
within thirty (30) days from the date of such event of damage or destruction. In
the event Landlord elects not to restore said Building and/or Premises and any
insured alterations, this Lease shall be deemed to have terminated as of the
date of such partial destruction. Notwithstanding the foregoing, if such work or
repair, reconstruction and restoration is such as to require a period longer
than one-hundred eighty (180), Landlord or Tenant may terminate this Lease.
(b) Upon any termination of this Lease under any of the
provisions of this Paragraph 21, the parties shall be released thereby without
further obligation to the other from the date possession of the Premises is
surrendered to Landlord except for items which have theretofore accrued and are
then unpaid.
(c) In the event of repair, reconstruction and restoration by
Landlord as herein provided, the rent provided to be paid under this Lease shall
be abated proportionately with the degree to which Tenant's use of the Premises
is impaired during the period of such repair, reconstruction or restoration.
Tenant shall not be entitled to any compensation or damages for loss in the use
of the whole or any part of the Premises and/or any inconvenience or annoyance
occasioned by such damage, repair, reconstruction or restoration.
(d) Tenant shall not be released from any of its obligations
under this Lease except to the extent and upon the conditions expressly stated
in this Paragraph 21. Notwithstanding anything to the contrary contained in this
Paragraph 21, should Landlord be delayed or prevented from repairing or
restoring the damaged Premises within six (6) months after the occurrence of
such damage or destruction by reason of acts of God, war, governmental
restrictions, inability to procure the necessary labor or materials, or other
cause beyond the control of Landlord, Landlord shall be relieved of its
obligation to make such repairs or restoration and Tenant shall be released from
its obligations under this Lease as of the end of said six (6) months period.
(e) It is hereby understood that if Landlord is obligated to or
elects to repair or restore as herein provided, (i) Landlord shall be obligated
to make repairs or restoration only of those portions of the Building and the
Premises which were originally provided at Landlord's expense or which were
insured by either party and approved by Landlord and the proceeds of such
insurance have been received by Landlord, and the repair and restoration of
items not provided at Landlord's expense shall be the obligation of Tenant and
(ii) the deductible amount required to be paid in connection with the recovery
of proceeds under any insurance policy covering the Building and/or the Premises
shall be included as an Operating Expense of the Site to the extent such damage
or destruction occurs to the exterior and/or structural portion of the Building
and/or the Common Areas, as reasonably determined by Landlord. To the extent
such damage or destruction occurs to the Premises, as reasonably determined by
Landlord, Tenant shall reimburse Landlord for such deductible amount.
(f) In the event that damage in excess of the deductible amount
of insurance is due to any cause other than fire or other peril covered by
extended coverage insurance, Landlord may elect to terminate this Lease.
(g) Notwithstanding anything to the contrary contained in this
Xxxxxxxxx 00, Xxxxxxxx shall not have any obligations whatsoever to repair,
reconstruct or restore the Premises when the damage resulting from any casualty
covered under this Paragraph 21 occurs during the last twelve (12) months of the
term of this Lease or any extension hereof.
(h) The provisions of California Civil Code SS 1932, Subsection
2, and SS 1933, Subsection 4, arc hereby waived by Tenant.
(i) In the event it becomes necessary for Landlord to terminate
the Lease in accordance with the terms of this Section 21, Landlord's treatment
of Tenant shall be consistent with the treatment of other tenants in the
Building.
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22. EMINENT DOMAIN.
(a) In case the whole of the Premises, the Building or the Site
or such part of the Premises, Building or the Site as shall substantially
interfere with Tenant's use and occupancy thereof, shall be taken for any public
or quasi-public purpose by any lawful power or authority by exercise of the
right of appropriation, condemnation or eminent domain, or sold to prevent such
taking, either party shall have the right to terminate this Lease effective as
of the date possession is required to be surrendered to said authority. Tenant
shall not assert any claim against Landlord or the taking authority for any
compensation because of such taking, and Landlord shall be entitled to receive
the entire amount of any award without deduction for any estate or interest of
Tenant. In the event the amount of property or the type of estate taken shall
not substantially interfere with the conduct of Tenant's business, Landlord
shall be entitled to the entire amount of the award without deduction for any
estate or interest of Tenant, and Landlord at his option may terminate this
Lease; provided, however, Landlord's treatment of Tenant shall be consistent
with the treatment of other tenants in the Building. If Landlord does not so
elect, Landlord shall promptly proceed to restore the Premises to Substantially
their same condition prior to such partial taking, and a proportionate allowance
shall be made to Tenant for the rent corresponding to the time during which, and
to the part of the Premises of which, Tenant shall be so deprived on account of
such taking and restoration. Tenant shall have the right to terminate this Lease
if Landlord fails to restore the Premises within ninety (90) days. Nothing
contained in this Paragraph 22 shall be deemed to give Landlord any interest in
any award separately made to Tenant for the taking of personal property and
trade fixtures belonging to Tenant or for moving costs incurred by Tenant in
relocating Tenant's business or for interference with Tenant's business.
(b) In the event of taking of the Premises or any part thereof
for temporary use, (i) this Lease shall be and remain unaffected thereby and
rent shall be abated only for the portion of the Premises affected, and (ii)
Tenant shall be entitled to receive for itself such portion or portions of any
award made for such use with respect to the period of the taking which is within
the term, provided that if such taking shall remain in force at the expiration
or earlier termination of this Lease, Tenant shall then pay to Landlord a sum
equal to the reasonable cost of performing Tenant's obligations under Paragraph
14 with respect to surrender of the Premises and upon such payment shall be
excused from such obligations. For purpose of this Subparagraph 22(b), a
temporary taking shall be defined as a taking for a period of fifty (50) days or
less.
(c) Tenant waives the provisions of California Code of Civil
Procedure Section 1265.130.
23. DEFAULTS AND REMEDIES.
1. Default Conditions. Each of the following events constitutes a
default and breach of this Lease by Tenant:
(a) Tenant's failure to pay any rent or charges required to be
paid by Tenant under this Lease where such failure continues for five (5) days
after written notice from Landlord to Tenant of such failure to perform (the
notice period respecting the existence of a default shall not modify the
obligation to pay a late charge provided for below);
(b) Tenant's failure to promptly and fully perform any other
covenant, condition or agreement contained in this Lease where such failure
continues for 10 Days after written notice from Landlord to Tenant of such
failure to perform with respect to the payment of money or 30 Days after written
notice from Landlord to Tenant of such failure to perform with respect to
failures to perform of a non monetary nature;
(c) the levy of a writ of attachment or execution on this Lease
or on any of Tenant's property located in the Premises which is not stayed
within 90 days after the date upon which it is filed;
29
(d) a general assignment for the benefit of Tenant's creditors or
an arrangement, composition, extension or adjustment with Tenant's creditors,
the filing by or against Tenant of a petition for relief or other proceeding
under the federal bankruptcy laws or state or other insolvency laws, or the
assumption by any court or administrative agency, or by a receiver, trustee or
custodian appointed by either, of jurisdiction, custody or control of the
Premises or of Tenant or any substantial part of its assets or property which
remains under such control 90 days following the date of the assumption of
control.
If a non monetary default occurs which Tenant cannot reasonably cure
within the above time period but Tenant commences corrective action within that
period and prosecutes the corrective action diligently and continuously to
completion, Tenant's rights under the lease shall remain in good standing and
Tenant shall be subject to no further monetary penalty for such default.
2. Landlord's Remedies. If Tenant defaults under this Lease, in addition
to other rights or remedies Landlord may have under this Lease or the law,
Landlord may elect either of the remedies set forth in paragraphs 2.1 and 2.2 of
this Lease.
For purposes of this Paragraph (inclusive of all subparagraphs), "worth
at the time of award" of the amounts referred to in parts 2.1(i) and 2.2(ii)
shall be computed by allowing interest at the highest rate allowable by law, and
"worth at time of award" of the amount referred to in part 11.2.1(iii) shall be
computed by discounting such amount at the rate specified in California Civil
Code Section 1951.2(b) or any successor statute. In such computations, the rent
due hereunder shall include Monthly Basic Rent plus the aggregate amount of all
other rents, charges, Operating Expenses and other amounts payable by Tenant
hereunder.
2.1. Landlord, at its option, shall have the right to
immediately terminate this Lease and Tenant's right to possession of the
Premises by giving written notice to Tenant and to recover from Tenant an award
of damages equal to the sum of,
(i) the worth at the time of award of the unpaid rental
which had been earned at the time of termination,
(ii) the worth at the time of award of the amount by which
the unpaid rental which would have been earned after termination until the time
of award exceeds the amount of such rental loss that Tenant affirmatively proves
could have been reasonably avoided,
(iii) the worth at the time of award of the amount by
which the unpaid rental for the balance of the Term after the time of award
exceeds the amount of such rental loss that Tenant affirmatively proves could be
reasonably avoided, and
(iv) any other amount necessary to compensate Landlord for
all the detriment either proximately caused by Tenant's failure to perform
Tenant's obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom, and
(v) all such other amounts in addition to or in lieu of
the foregoing as may be permitted from time to time under applicable law; or;
2.2. Notwithstanding any other provision of this Lease, Landlord
has the remedy described in California Civil Code Section 1951.4 (Landlord may
continue this Lease in effect after Tenant's breach and abandonment and recover
rent as it becomes due, if Tenant has the right to sublet or assign, subject
only to reasonable limitations). Tenant agrees that this Lease confers upon
tenant the right to sublet or assign its interest in this lease subject to
reasonable limitations. Tenant acknowledges that such reasonable limitations and
the right
30
to sublet or assign as conferred by this Lease comply with the requirements
imposed by California Civil Code Section 1951.4. This right shall continue in
effect for so long as Landlord does not terminate this Lease and Tenant! s right
to possession of the Premises, in which event, Landlord shall retain the right
to enforce all rights and remedies provided by this Lease and by law, including
the right to recover all rent and other charges payable by Tenant under this
Lease as they become due.
3. Landlord's Default. Except as otherwise provided by this Lease,
Landlord's failure to perform any obligation required of Landlord (other than a
delay in delivery of possession) within 30 Days after Tenant's delivery to
Landlord of written notice, specifying the obligation Landlord has failed to
perform shall constitute a default. Notwithstanding the preceding sentence, if
the nature of the obligation is such that more than 30 Days are required for
performance, then Landlord shall not be in default if it commences performance
within such 30 Day period and diligently prosecutes the same to completion. If
Landlord has not timely commenced to cure the default (or subsequently does not
diligently pursue the cure), Tenant may perform Landlord's obligation(s) with
respect to the default and xxxx Landlord for the reasonable cost of performance.
Should Landlord dispute the claim for any reason, the matter will be resolved
pursuant to the arbitration provisions of this Lease.
24. ASSIGNMENT AND SUBLETTING.
(a) Required Approval. Without first obtaining Landlord's written
consent, Tenant shall not directly or indirectly: (1) assign this Lease in whole
or in part; (2) sublet all or any part of the Premises; (3) license the use of
all or any part of the Premises; (4) license all or any part of any business
conducted on the Premises; (5) encumber or hypothecate this Lease (items (1)
through (5) are collectively referred to as a "Transfer"). Landlord shall not
unreasonably withhold or delay Landlord's consent to any requested Transfer. As
used in this Section, "Transferee" refers to the person(s) or entity(ies)
intended to receive any use or occupancy rights to the Premises as the result of
a proposed Transfer.
(b) Request for Consent. Tenant' s request for consent to any
Transfer shall be in writing and shall include the following: (a) the name and
legal composition of the proposed Transferee; (b) the nature of the proposed
Transferee's business to be carried on in the Premises; (c) the Terms and
provisions of the proposed Transfer including, without limitation the proposed
commencement and termination dates (respectively the "Scheduled Commencement"
and the "Scheduled Termination"); and (d) such financial and other information
as Landlord may reasonably request concerning the proposed Transferee, the
proposed Transfer and any transaction contemplated to occur in connection with
the proposed Transfer. Within fifteen (15) days of receipt of such written
notice, and additional information requested by Landlord concerning the proposed
assignee's or Transferee's financial responsibility, Landlord shall elect one of
the following options and notify Tenant in writing of its election:
(i) Consent to the proposed Transfer;
(ii) Conditionally consent to the proposed Transfer,
requiring that Tenant and/or the proposed Transferee agree to specific
reasonable terms and provisions as a condition of approval of the Transfer.
(iii) Refuse to consent to the Transfer on reasonable
grounds.
(iv) Except for Transfers for a term materially less than
the remainder of the Term, elect to terminate this Lease, or in the case of a
request for approval of Transfer of a portion of the Premises, terminate this
Lease as to the portion of the Premises subject to the proposed Transfer. If
Tenant requests Landlord's consent to any Transfer of all or a portion of the
Premises, Landlord shall have the right, to be exercised by giving written
notice to Tenant within thirty (30) days of receipt by Landlord of the financial
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responsibilities information required by this Section to terminate this Lease,
in whole or as to the affected portion of the Premises, effective as of the
Scheduled Commencement.
(v) Landlord's failure to give written notice of its
approval or disapproval of the proposed subletting or assignment within such
period shall be deemed Landlord's consent to the proposed assignment or
subletting. If Landlord disapproves of any proposed assignment or subletting,
Landlord shall state the reason for the disapproval in Landlord's response to
Tenant.
(c) Voidable Transfers. Any Transfer without Landlord's prior
written consent shall be voidable at Landlord's election and shall constitute a
default under the provisions of this Lease entitling Landlord to exercise all
rights and remedies provided by this Lease for Tenant's default.
(d) Consent Does Not Constitute Waiver. Landlord's consent to any
Transfer shall not constitute a waiver of the necessity for such consent to any
subsequent Transfer by Tenant and/or by any Transferee of Tenant. The
prohibition against assignment and subletting contained in this paragraph
includes a prohibition against assignment or subletting by operation of law.
(e) Change in Tenant's Composition. Except as set forth to the
contrary in Paragraph 3 of the Rider attached hereto, in the event that Tenant
is a partnership, a withdrawal or change of partners or a change of interests of
partners or if Tenant is a corporation, other than a publicly traded
corporation, any transfer of stock which collectively modifies 50% or more of
the ownership shall constitute a Transfer requiring Landlord's advance approval.
(f) Tenant's Liability. Unless Landlord expressly agrees to the
contrary in writing, notwithstanding any approved Transfer, Tenant shall remain
fully liable on this Lease and shall not be released from the obligations
imposed upon Tenant by this Lease.
(g) Grounds for Withholding Consent to Transfer. Without limiting
other reasons or circumstances, Landlord and Tenant agree that it is reasonable
for Landlord to withhold consent to Transfer, if (i) the financial strength of
the proposed Transferee is not, in Landlord's reasonable judgment, commensurate
with the obligations of the Lease; (ii) the proposed Transferee's use would, in
Landlord's reasonable judgment, be incompatible with the then current tenants,
or the use of the rest of the Property; (iii) the proposed Transferee's use
would generate traffic, parking and/or wear and tear on the Premises or Property
materially in excess of that generated by Tenant's use; (iv) the proposed terms
of the Transfer do not expressly require compliance by the Transferee with each,
all and every one of the provisions of this Lease; or (v) the proposed
Transferee is a current tenant of the Building or a Prospective Tenant. As used
in this Section, "Prospective Tenant" means a person or entity with which
Landlord has negotiated for space in the Building within four months prior to
the date of delivery to Landlord of the request for approval of the Transfer and
any partnership, association or corporation owned 50% or more by any such
persons and/or entities with whom Landlord has negotiated with the same time
period. As used in this Section, "Property" refers to the Building and the
Multi-Story Parking Facility and the Site.
(h) Reasonable Limitations. Tenant expressly agrees that the
provisions of this Lease respecting subletting, assignment and any Transfer are
subject only to reasonable limitations in compliance with the requirements of
California Civil Code Section 1951.4.
(i) Landlords Fees and Expenses. Tenant shall pay Landlord's
reasonable and out-of-pocket processing costs and attorneys' fees incurred in
reviewing and processing all requests for approval of a proposed Transfer
whether or not Landlord consents to the proposed Transfer.
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(j) Excess Rents. Tenant shall pay Landlord 50% of all Excess
Rent received by Tenant directly or indirectly in connection with any Transfer
respecting this Lease. As used in this Lease, "Excess Rent" means, subject to
the adjustments provided below and allocated on a pro rata basis in the event of
a Transfer of a portion of the Premises, in the case of an assignment, all
consideration received and, in the case of a sublease or license, all
consideration received in excess of rents and charges reserved under this Lease.
The adjustments allowed pursuant to the provisions of this paragraph are: the
cost of broker's commissions paid by Tenant with regard to the Transfer, legal
fees incurred by Tenant respecting the Transfer, the unamortized portions of
improvements made in the subleased area by Tenant for Tenant's use during the
original tenancy (except those paid for by Landlord or by any Allowance from
Landlord for such improvements) and other expenses reasonably incurred by Tenant
in effectuating the Transfer including improvements constructed by Tenant for
the Transferee as a condition of the Transfer). Notwithstanding the foregoing
language, no broker's commissions, legal fees and other expenses so charged
against receipts from the Transfer may exceed the fair market value for such
services and all such services shall be strictly related to the Transfer.
Tenant shall not receive any adjustment for its moving or
relocation expenses and may not deduct them from compensation received. Tenant
shall submit an accounting of all such expenses to Landlord within 60 days of
the effective date of the Transfer. Such accounting shall be certified as
accurate by a Certified Public Accountant or signed and certified as accurate by
Tenant. All amortization of improvements shall be calculated in a manner which
complies with generally accepted United States accounting practices consistently
applied. Landlord shall have the right to dispute any charges included in the
accounting. In the event of any such dispute, Tenant shall, upon Landlord's
request, provide reasonable documentation to substantiate all disputed items.
(k) Transferee's Direct Patent. Landlord may require that the
Transferee remit directly to Landlord on a monthly basis, all moneys due to
Tenant by said Transferee. Landlord's imposition of such a requirement shall not
relieve Tenant of any responsibilities or obligations under the provisions of
this Lease, nor shall it obligate Landlord to undertake collection actions on
Tenant's behalf. Landlord shall pay to Tenant any moneys remaining from the
Transferee's payments after deducting all moneys due to Landlord under the terms
of this Lease.
(l) Restriction on Exercise of Options. To the extent Tenant
possesses any option or options to expand into additional space within the
Building or to extend the term of this Lease, such options may not be exercised
nor will the time limits in which Tenant must exercise such options be extended,
so long as any portion of the Premises are subject to a Transfer, whether or not
Landlord has consented to the Transfer. Except with respect to the transferees
described in Section 3 of the Rider attached hereto, but specifically excluding
the transferees described in Subsection 3(c) of the Rider attached hereto, no
Transferee shall acquire the right to extend the term of this Lease or to expand
into additional space unless Landlord expressly consents in writing to the
Transferee's acquisition of such right.
(m) Restoration of Premises. Notwithstanding anything to the
contrary in paragraphs 13 or 24, Landlord, at its sole discretion, may require
Tenant, at Tenant's sole expense, to restore the Premises to the condition and
configuration that existed in the Premises prior to any approved Transfer,
normal wear and tear excepted unless approved otherwise in writing by Landlord.
25. QUIET EMPLOYMENT.
Landlord covenants and agrees with Tenant that upon Tenant paying the
rent required under this Lease and paying all other charges and performing all
of the covenants and provisions aforesaid on Tenant's part to be observed and
performed under this Lease, Tenant shall and may peaceably and quietly have,
hold and enjoy the Premises in accordance with this Lease.
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26. SUBORDINATION.
Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, and at the election of
Landlord or any first mortgagee with a lien on the Building or any ground lessor
with respect to the Building, this Lease shall be subject and subordinate at all
times to: (a) all ground leases or underlying leases which may now exist or
hereafter be executed affecting the Building or the Site, (b) the lien of any
mortgage or deed of trust which may now exist or hereafter be executed in any
amount for which the Building, Site, ground leases or underlying leases, or
Landlords interest or estate in any of said items is specified as security.
Notwithstanding the foregoing, Landlord shall have the right to subordinate or
cause to be subordinated any such ground leases or underlying leases or any such
liens to this Lease. In the event that any ground lease or underlying lease
terminates for any reason or any mortgage or deed of trust is foreclosed or a
conveyance in lieu of foreclosure is made for any reason, Tenant shall, if
requested by the ground lessor, mortgagee or beneficiary, as applicable attorn
and become the Tenant of the successor in interest to Landlord and in such event
Tenant's right to possession of the Premises shall not be disturbed if Tenant is
not in default and so long as Tenant shall pay the rent and all other amounts
required to be paid to Landlord pursuant to the terms hereof and observe and
perform all of the provisions of this Lease, unless the Lease is otherwise
terminated pursuant to its terms. Tenant covenants and agrees to execute and
deliver, upon demand by Landlord and in the form requested by Landlord and
reasonably acceptable to Tenant, any additional documents evidencing the
priority or subordination of this Lease with respect to any such ground leases
or underlying leases or the lien of any such mortgage or deed of trust. Should
Tenant fail to sign and return any such documents within ten (10) business days
of receipt of a second notice thereof, Tenant shall be in default, and Landlord
may, at Landlord's option, terminate this Lease provided written notice of such
termination is received by Tenant prior to Landlord's receipt of such documents.
27. ESTOPPEL CERTIFICATE.
(a) Within ten (10) days following any written request which
either party may make from time to time, the other party shall execute and
deliver to the requesting party a statement, in a form substantially similar to
the form of Exhibit "E" attached hereto, certifying (i) the Commencement Date of
this Lease; (ii) the fact that this Lease is unmodified and in full force and
effect (or, if there have been modifications hereto, that this Lease is in full
force and effect, as modified, and stating the date and nature of such
modifications); (iii) the date to which the rental and other sums payable under
this Lease have been paid; and (iv) the fact that there are no current defaults
under this Lease by either Landlord or Tenant except as specified in Tenant's
statement;. Landlord and Tenant intend that any statement delivered pursuant to
this Paragraph 28 may be relied upon by any mortgagee, beneficiary, purchaser or
prospective purchaser of the Building or any interest therein.
(b) The non-requesting party's failure to deliver such statement
within such time shall be conclusive upon such party (i) that this Lease is in
full force and effect, without modification except as may be represented by the
requesting party; (ii) that there are no uncured defaults in the requesting
party's performance; and (iii) that not more than one (1) month's rent has been
paid in advance. In the event that Landlord is the requesting party, Tenant's
failure to deliver said statement to Landlord within ten (10) working days of
receipt of a second notice thereof shall constitute a default under this Lease,
and Landlord may, at Landlord's option, terminate the Lease, provided written
notice of such termination is received by Tenant prior to Landlord's receipt of
said statement.
28. BUILDING PLANNING.
In the event Landlord requires the Premises for use in conjunction with
another suite or for other reasons connected with the Building planning program,
upon notifying Tenant in writing a minimum of sixty (60) days in advance,
Landlord shall have the right to move Tenant to other space in the Building of
which the Premises forms
34
a part, provided such space is comparable in size and design to the Premises,
can in Tenant's reasonable determination, accommodate Tenant's permitted use
hereunder, and is located on floors 12 through 20 of the Building, at Landlord's
sole cost and expense, including all of Tenant's moving expenses, telephone
installation, electrical wiring and cabling, and stationary reprinting charges,
and the terms and conditions of the original Lease shall remain in full force
and effect, save and excepting that a revised Exhibit "A" shall become part of
this Lease and shall reflect the location of the New space and the Basic Lease
Terms shall be amended to include and state all correct data as to the new
space.
29. RULES AND REGULATIONS.
Tenant shall faithfully observe and comply with the "Rules and
Regulations", a copy of which is attached hereto and marked Exhibit "F", and all
reasonable and nondiscriminatory modifications thereof and additions thereto
from time to time put into effect by Landlord. Landlord shall not be responsible
to Tenant for the violation or non-performance by any other tenant or occupant
of the Building of any of said Rules and Regulations.
30. CONFLICT OF LAWS.
This Lease shall be governed by and construed pursuant to the laws of
the State of California.
31. SUCCESSORS AND ASSIGNS.
Except as otherwise provided in this Lease, all of the covenants,
conditions and provisions of this Lease shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
32. SURRENDER OF PREMISES.
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Landlord, operate as an assignment to it of any or all subleases or
subtenancies. Upon the expiration or termination of this Lease, Tenant shall
peaceably surrender the Premises and all alterations and additions thereto broom
clean, in good order, repair and condition, reasonable wear and tear, casualty
and condemnation excepted, and shall comply with the provisions of Subparagraphs
13(f) and 13(g). The delivery of keys to any employee of Landlord or to
Landlord's agent or any employee thereof shall not be sufficient to constitute a
termination of this Lease or a surrender of the Premises.
33. PROFESSIONAL FEES.
(a) Should either party bring suit against the other with respect
to matters arising from or growing out of this Lease, then all costs and
expenses, including without limitation, its actual reasonable professional fees
and expenses such as appraisers', accountants' and attorneys' fees and expenses,
incurred by the prevailing party therein shall be paid by the other party, which
obligation on the part of the other party shall be deemed to have accrued on the
date of the commencement of such action and shall be enforceable whether or not
the action is prosecuted to judgment.
(b) 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 without limitation, its reasonable actual professional fees such
as appraisers', accountants' and attorneys' fees and expenses. As used in this
paragraph, references to "suit" include arbitration proceedings as well as
actions commenced in court.
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34. PERFORMANCE BY TENANT.
All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenants sole cost and
expense and without any abatement of rent. Tenant acknowledges that the late
payment by Tenant to Landlord of any sums due under this Lease will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of such
cost being extremely difficult and impractical to fix. Such costs include,
without limitation, processing and accounting charges, and late charges that may
be imposed on Landlord by the terms of any encumbrance and note secured by an
encumbrance covering the Premises or the Building of which the Premises are a
part. Therefore, if any monthly installment of Monthly Basic Rent is not
received by Landlord within five (5) days following the due date therefor, and
if Tenant fails to pay any other sum of money due hereunder and such failure
continues for five (5) days after notice thereof by Landlord, Tenant shall pay,
as additional rent, as liquidated damages for Landlords costs an amount equal to
four percent (4%) of the overdue amount, plus such overdue amount shall bear
interest at the lesser of fifteen percent (15%) or the maximum rate permissible
by law, calculated from the date the monthly installment of Annual Basic Rent is
due until the date of payment to Landlord. Landlord's acceptance of any late
charge or interest shall not constitute a waiver of Tenant's default with
respect to the overdue amount or prevent Landlord from exercising any of the
other rights and remedies available to Landlord under this Lease or any law now
or hereafter in effect. Further, in the event such late charge is imposed by
Landlord for two (2) consecutive months for whatever reason, Landlord shall have
the option to require that, beginning with the first payment of rent due
following the imposition of the second consecutive late charge, rent shall no
longer be paid in monthly installments but shall be payable three (3) months in
advance.
35. MORTGAGE AND SENIOR LESSOR PROTECTION.
No act or failure to act on the part of Landlord which would entitle
Tenant under the terms of this Lease, or by law, to be relieved of Tenant's
obligations hereunder or to terminate this Lease, shall result in a release of
such obligations or a termination of this Lease unless (a)Tenant has given in
accordance with Section 58, which notice is concurrent with notice to Landlord,
to any beneficiary of a deed of trust or mortgage covering the Premises and to
the Lessor under any master or ground Lease covering the Building, the Site or
any interest therein whose identity and address shall have been furnished to
Tenant, and (b)Tenant offers such beneficiary, mortgagee or Lessor a reasonable
opportunity to cure the default, including time to obtain possession of the
Premises by power of sale or of judicial foreclosure, if such should prove
necessary to effect a cure.
36. DEFINITION OF LANDLORD.
The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner or owners, at the time in question, of the fee title to,
or a lessee's interest in a ground lease of the Site or master lease of the
Building. In the event of any transfer, assignment or other conveyance or
transfers of any such title or interest, Landlord herein named (and in case of
any subsequent transfers or conveyances, the then grantor) shall be
automatically freed and relieved from and after the date of such transfer,
assignment or conveyance of all liability as respects the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed and, without further agreement, the transferee of
such title or interest shall be deemed to have assumed and agreed to observe and
perform any and all obligations of Landlord hereunder, during its ownership of
the Premises. Landlord may transfer its interest in the Premises without the
consent of Tenant and such transfer or subsequent transfer shall not be deemed a
violation on Landlord's part of any of the terms and conditions of this Lease.
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37. WAIVER.
The failure of Landlord to seek redress for violation of, or to insist
upon strict performance of, any term, covenant or condition of this Lease or the
Rules and Regulations attached hereto as Exhibit "F", shall not be deemed a
waiver of such violation or prevent a subsequent act which would have originally
constituted a violation from having all the force and effect of an original
violation, nor shall the failure of Landlord to enforce any of said Rules and
Regulations against any other tenant of the Building be deemed a waiver of any
such Rule or Regulation, nor shall any custom or practice which may become
established between the parties in the administration of the terms hereof be
deemed a waiver of, or in any way affect, the right of Landlord to insist upon
the performance by Tenant in strict accordance with said terms. The subsequent
acceptance of rent hereunder by Landlord shall not be deemed to be a waiver of
any preceding breach by Tenant of any term, covenant or condition of this Lease,
other than the failure of Tenant to pay the particular rent so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such rent.
38. IDENTIFICATION OF TENANT.
Unless the provisions of Paragraph 53 hereinbelow are applicable to this
Lease, then if more than one person executes this Lease as Tenant, (a) each of
them is jointly and severally liable for the keeping, observing and performing
of all of the terms, covenants, conditions, provisions and agreements of this
Lease to be kept, observed and performed by Tenant, and (b) the term "Tenant" as
used in this Lease shall mean and include each of them jointly and severally and
the act of or notice from, or notice or refund to, or the signature of, any one
or more of them, with respect to the tenancy or this Lease, including, but not
limited to, any renewal, extension, expiration, termination or modification of
this Lease, shall be binding upon each and all of the persons executing this
Lease as Tenant with the same force and effect as if each and all of them had so
acted or so given or received such notice or refund or so signed.
39. PARKING AND TRANSPORTATION.
(a) Provided no event of default has occurred and is continuing
hereunder, Tenant shall have the right to lease the number of parking spaces
designated in Paragraph 25 of the Basic Lease Terms. Parking rates for the
parking designated in Paragraph 25 of the Basic Lease Terms shall be Landlord's
prevailing market rates then in effect for the applicable parking facility.
Landlord, in the exercise of its sound business judgment, shall have the right
to change the mode of parking in both the Basement Garage and the Multi-Store
Parking Facility at any time. Tenant shall not use more parking spaces than said
number. In the event Landlord has not assigned specific spaces to Tenant, Tenant
shall not use any spaces which have been so specifically assigned by Landlord to
other tenants or for such other uses as visitor parking or which have been
designated by governmental entities with competent jurisdiction as being
restricted to certain uses.
(i) Tenant shall not permit or allow any vehicles that
belong to or are controlled by Tenant or Tenant's employees, suppliers,
shippers, customers, or invitees to be loaded, unloaded, or parking in areas
other than those designated by Landlord for such activities.
(ii) If Tenant permits or allows any of the prohibited
activities described in this Paragraph 40, then Landlord shall have the right,
without notice, in addition to such other rights and remedies that it may have,
to remove or tow away the vehicle involved and charge the cost to Tenant, which
cost shall be immediately payable upon demand by Landlord.
(iii) Landlord reserves the right at any time to relocate
such spaces and to substitute an equivalent number of parking spaces in a
parking structure or subterranean parking facility or in a surface parking area
reasonably equivalent to the affected parking area and within a reasonable
distance of the Premises
37
or to change or modify the manner or mode of parking, including, but not limited
to, changing any reserved spaces to valet parking and or re-striping such
spaces.
(iv) Tenant shall submit a written notice in a form
reasonably specified by Landlord, containing the names, home and office
addresses and telephone numbers of those persons who are authorized by Tenant to
use the parking spaces on a monthly basis (the "Authorized Users") and shall use
its best efforts to identify each automobile by make, model and license number.
Such notice shall be served upon Landlord prior to the beginning of the term of
this Lease. Such notice, as amended from time to time, is hereafter referred to
as the "Parking Notice". No person whose name and address is not contained in
the Parking Notice shall have any right to park an automobile in the area of the
Building parking facilities designated for monthly parking and no person whether
or not his name is included in the Parking Notice shall have any right to park
an automobile not identified in the Parking Notice without (in either case)
paying the parking charge then applicable for daily parking in the Building
parking facilities and parking in the area designated for daily parking.
(v) Tenant and Authorized Users shall comply with all
rules and regulations as set forth in the Parking Rules and Regulations portion
of Exhibit "F" hereto. Landlord reserves the right to modify, add to, or delete
from time to time such Parking Rules and Regulations as it deems reasonably
necessary for the operation of said parking. Landlord may refuse to permit any
person who violates with unreasonable frequency the Parking Rules and
Regulations to parking in the Building Garage and Multi-Story Parking Facility,
and any violation of the rules shall subject the car to removal. Tenant agrees
to use its reasonable best efforts to acquaint all Authorized Users and visitors
with the Parking Rules and Regulations.
(vi) All responsibility for damage to cars is assumed by
Authorized Users. Tenant shall repair or cause to be repaired at its sole cost
and expense any and all damage to the Basement Garage and Multi-Store Parking
Facility or any part thereof caused by Tenant or its Authorized Users or
resulting from vehicles of Authorized Users.
(b) Tenant agrees that it will use its reasonable best efforts to
cooperate in programs which may be undertaken by Landlord independently, or in
cooperation with local municipalities or governmental agencies or other property
owners in the vicinity of the Building, to reduce peak levels of commuter
traffic. Such programs may include, but shall not be limited to, carpools,
vanpools and other ride sharing programs, public and private transit, and
flexible work hours.
(c) Tenant shall be entitled to the number of standard automobile
parking spaces designated in Paragraph 25 of the Basic Lease Terms. In the event
that any of the spaces Tenant is entitled to are not purchased by the Tenant for
four (4) consecutive months, Tenant shall have no further rights to these spaces
and Landlord may offer these spaces to other parties as it so chooses.
(d) Tenant's parking rights hereunder shall extend to any
permitted assignee or sublessee of this Lease.
40. OFFICE AND COMMUNICATIONS SERVICES.
(a) Landlord has advised Tenant that certain office and
communications services may be offered to tenants of the building by a
concessionaire under contract or license to Landlord ("Provider"). Tenant shall
be permitted to contract with Provider for the provision of any or all of such
services on such terms and conditions as Tenant and Provider may agree. Tenant
shall also be permitted to obtain office and communications services from any
other reputable person or entity in the business of providing the same (herein
called an "Alternate Provider"), provided that Landlord shall not be required
thereby to make any alterations in or to any part of the Building or the use of
any facilities or equipment of the Building, and provided further that no such
38
services provided by an Alternate Provider, or any equipment or facilities used
or to be used in connection therewith, shall be incompatible in any respect
with, or shall interfere with or otherwise impair or adversely affect, the
operation, reliability or quality of the Building systems or any services,
equipment or facilities used or operated by Provider or any tenant in the
Building.
(b) Tenant acknowledges and agrees that: (i) Landlord has made no
warranty or representation to Tenant with respect to the availability of any
such services, whether provided by Provider or any Alternate Provider, or the
quality, reliability or suitability thereof; (ii) neither Provider nor any
Alternate Provider is acting as the agent or representative of Landlord in the
provision of such services, and Landlord shall have no liability or
responsibility for any failure or inadequacy of such services, or any equipment
or facilities used in the furnishing thereof, or any act or omission of Provider
or any Alternate Provider, or their agents, employees, representatives, officers
or contractors: (iii)Landlord shall have no responsibility or liability for the
installation, alteration, repair, maintenance, furnishing, operation, adjustment
or removal of any such services, equipment or facilities; and (iv)any contract
or other agreement between Tenant and Provider or any Alternate Provider shall
be independent of this Lease, the obligations of Tenant hereunder, and the
rights of Landlord hereunder, and, without limiting the foregoing, no default or
failure of Provider or any Alternate Provider with respect to any such services,
equipment or facilities, or under any contract or agreement relating thereto,
shall have any effect on this Lease or give to Tenant any offset or defense to
the fall and timely performance of its obligations hereunder, or entitle Tenant
to any abatement of rent or additional rent or any other payment required to be
made by Tenant hereunder, or constitute any actual or constructive eviction of
Tenant, or otherwise give rise to any claim of any nature against Landlord.
(c) The Landlord shall maintain, as an Operating Expense of the
Building, the vertical telephone riser cables terminating at the Building
telephone room located in the central core on each floor. All telephone cabling
from the Building telephone room located in the central core on each floor to
the Premises and within the Premises shall be maintained at the Tenant's expense
regardless of who paid for the initial installation. Landlord shall have no
responsibility for the maintenance of any dedicated data cabling or special
wiring installations installed for the exclusive use of a tenant in the
Building.
41. TERMS AND HEADINGS.
The words "Landlord" and "Tenant" as used herein shall include the
plural as well as the singular. Words used in any gender include other genders.
If there be more than one Tenant, i.e., if two or more persons or entities are
jointly referred to in this Lease as "Tenant", the obligations hereunder imposed
upon Tenant shall be joint and several. The Paragraph headings of this Lease are
not a part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
42. EXAMINATION OF LEASE.
Submission of this instrument for examination or signature by Tenant
does not constitute a reservation of or option for Lease, and it is not
effective as a Lease or otherwise until execution by and delivery to both
Landlord and Tenant.
43. TIME.
Time is of the essence with respect to the performance of every
provision of this Lease in which time or performance is a factor.
44. PRIOR AGREEMENT; AMENDMENTS.
39
This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease, and no prior agreement
or understanding, oral or written, express or implied, pertaining to any such
matter shall be effective for any purpose. No provision of this Lease may be
amended or added to except by an agreement in writing signed by the parties
hereto or their respective successors in interest. The parties acknowledge that
all prior agreements, representations and negotiations are deemed superseded by
the execution of this Lease to the extent they are not incorporated herein.
45. SEPARABILITY.
Any provision of this Lease which shall prove to be invalid, void or
illegal in no way affects, impairs or invalidates any other provision hereof,
and such other provisions shall remain in full force and effect.
46. RECORDING
Neither Landlord nor Tenant shall record this Lease nor a short form
memorandum thereof without the consent of the other and if such recording
occurs, it shall be at the sole cost and expense of the party requesting the
recording.
47. LIMITATION ON LIABILITY.
The obligations of Landlord under this Lease do not constitute personal
obligations of the individual partners, directors, officers or shareholders of
Landlord, and Tenant shall not seek recourse against the individual partners,
directors, officers or shareholders of Landlord or any of their personal assets
for satisfaction of any liability in respect to this Lease. The individual
directors and officers of Tenant shall not be personally liable for the
obligations of Tenant under this Lease and Landlord shall not seek recourse
against the individual officers and directors of Tenant or their personal assets
for satisfaction of any liability of Tenant hereunder.
48. RIDERS.
Clauses, plats and riders, if any, signed by Landlord and Tenant and
affixed to this Lease are a part hereof.
49. SIGNS.
Tenant shall not place any sign upon the Premises or the Building
without Landlord's prior written consent not to be unreasonably withheld,
conditioned or delayed with respect to the Premises. Landlord may at any time
place on or about the Building any ordinary "For Sale" signs and Landlord may at
any time during the last one hundred eighty (180) days of the Term hereof place
on or about the Premises any ordinary "For Lease" signs, all without rebate of
rent or liability to Tenant.
50. MODIFICATION FOR LENDER.
[INTENTIONALLY DELETED]
51. ACCORD AND SATISFACTION.
No payment by Tenant or receipt by Landlord of a lesser amount than the
rent payment herein stipulated shall be deemed to be other than on account of
the rent, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent be deemed an accord and satisfaction
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such rent or pursue any other remedy provided in
this Lease. Tenant agrees that each of the foregoing covenants and agreements
shall
40
be applicable to any covenant or agreement either expressly contained in this
Lease or imposed by an statute or at common law.
52. FINANCIAL STATEMENTS.
At any time during the term of this Lease, but not more than one (1)
time per annum, Tenant shall, upon ten (10) days prior written notice from
Landlord, provide Landlord with a current financial statement and financial
statements of the two (2) years prior to the current financial statement year as
reasonably available, in a form customarily prepared by Tenant. Such statement
shall be prepared in accordance with generally accepted accounting principles
and, if such is the normal practice of Tenant, shall be audited by an
independent certified public accountant. Landlord shall not retain copies of
financial statements.
53. TENANT AS CORPORATION.
If Tenant executes this Lease as a corporation, then Tenant and the
persons executing this Lease on behalf of Tenant represent and warrant that the
individuals executing this Lease on Tenant's behalf are duly authorized to
execute and deliver this Lease on its behalf in accordance with a duly adopted
resolution of the board of directors of Tenant, a copy of which is to be
delivered to Landlord on execution hereof, and in accordance with the By-Laws of
Tenant and that this Lease is binding upon Tenant in accordance with its terms.
54. NO PARTNERSHIP OR JOINT VENTURE.
Nothing in this Lease shall be deemed to constitute Landlord and Tenant
as partners or joint venturers. It is the express intent of the parties hereto
that their relationship with regard to this Lease be and remain that of Landlord
and Tenant.
55. AMERICANS WITH DISABILITIES ACT.
Landlord shall be responsible for compliance with the American with
Disabilities Act ("ADA") in all Common Areas of the Building. Landlord shall be
responsible for making the Premises comply with ADA during the initial buildout
of the Premises. Commencing on the Commencement Date, it shall be the Tenant's
responsibility for compliance with ADA within the boundaries of the Premises.
56. HAZARDOUS MATERIALS.
(a) Tenant's Obligations.
(i) Restrictions on Hazardous Materials. Tenant, its
agents, servants, employees, officers, directors, invitees, guests, clients,
contractors and their respective representatives (hereafter collectively
referred to as "Agents" shall not cause or knowingly permit "Hazardous Material"
(as defined below) to be brought upon, used, handled, disposed of transported,
kept, manufactured, generated or stored (hereafter collectively "Handled" or
"Handling") in, on, or about the Property without Landlord's prior written
consent. As used in this Section, "Property" refers to the Building and the
Multi-Story Parking Facility and the Site.
As used in this lease, "Hazardous Material" includes,
without limitation, (1) petroleum or petroleum products; (2) hydrocarbon
substances of any kind; (3) asbestos in any form; (4) fomaldehyde; (5)
radioactive substances; (6) industrial solvents; (7) flammables; (8) explosives;
(9) leakage from underground storage tanks; (10) substances defined as
"hazardous substances", "hazardous material", or "toxic substances" in (A) the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986 or as
otherwise amended, 42 U.S.C. Section 9601, et seq., (B)
41
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq. and
any amendments thereto, or (C) the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, et seq. and any amendments thereto; (11) those substances
defined as "hazardous wastes", "extremely hazardous wastes" or "restricted
hazardous wastes" in Sections 25115, 25117, and 25122.7 or listed pursuant to
Section 25140 of the California Health & Safety Code and any amendments thereto;
(12) those substances defined as "hazardous substances" in Section 25316 of the
California Health & Safety Code and any amendments thereto; (13) those
substances defined as "hazardous material", "hazardous wastes" or "hazardous
substances" in Section 25501 and Section 25501.1 of the California Health &
Safety Code and any amendments thereto; (14) those substances defined as
"hazardous substances" under Section 25281 of the California Health & Safety
Code and any amendments thereto; (15) those substances causing "pollution" or
"contamination" or constituting "hazardous substances" within the meaning of (A)
the Clean Water Act, 33 U.S.C. Section 1251 et seq. and any amendments thereto,
(B) the Xxxxxx-Cologne Water Quality Control Act, Section 13050 of the
California Water Code and any amendments thereto, and (C) the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq.; (16) such chemicals as are identified
on the list published from time to time as provided in Chapter 6.6 of the
California Health and Safety Code, as amended, as causing cancer or reproductive
toxicity; (17) polychlorinated biphenyls (PCBs) set forth in the Federal Toxic
Substance Control Act, as amended, 15 U.S.C. Section 2601 et seq.; (18) "toxic
air contaminant" as defined in California Health and Safety Code Section 39655;
(19) the wastes, substances, materials, contaminants and pollutants identified
pursuant to or set forth in the Regulations adopted or judicial or
administrative orders, decisions or decrees promulgated pursuant to any of the
foregoing laws; and (20) all receptacles and containers for any and all
materials referred to above. The foregoing list of definitions and statutes is
intended to be illustrative and not exhaustive and such list shall be deemed to
include all definitions, rules, regulations and laws applicable to the subject
matter of this paragraph as such rules, laws, regulations and definitions may be
amended, modified, or changed from time to time. Notwithstanding the foregoing,
"Hazardous Materials" shall not include reasonable and customary amounts of
cleaning and maintenance materials normally used in the operation and
maintenance of an office building provided they are stored and used in
accordance with applicable laws, provided however, that Tenant shall be
responsible for the cleanup and remediation of such materials.
(ii) Applicable Regulations. If any Hazardous Material is
Handled in, on, about or under the Property by Tenant and/or its Agents, Tenant
shall bear all financial and other responsibility for ensuring that the Handling
of such Hazardous Material complies with all Regulations respecting the Handling
of such Hazardous Material and with the highest standards prevailing in the
industry for Handling of such Hazardous Material. Without limiting Tenant's
other obligations as set forth in this Lease, Tenant shall, at its own cost and
expense, procure, maintain in effect and comply with all conditions and
requirements of any and all permits, licenses and other governmental and
regulatory approvals or authorizations required under any and all applicable
Regulations relating to the Handling of such Hazardous Material. Tenant will
provide Landlord copies of all permits, licenses, or other regulatory approvals
or authorizations within five days of receipt thereof. As used in this Section,
"Regulation" includes all laws, statutes, regulations and requirements adopted
by duly constituted public authorities now in force or hereafter adopted
together with all orders, judgments, decrees and rules promulgated by any local,
regional, state or federal governmental agency, court, judicial or
quasi-judicial body or legislative or quasi-legislative body which relates to
matters of the environment, health, industrial hygiene or safety.
(iii) Restoration. If, as a result of actions caused or
permitted by Tenant and/or its Agents, the presence of Hazardous Material in,
on, about or under the Property or any adjoining property results in any
contamination of the Property or the surrounding environment. Tenant shall
promptly take, at its sole cost and expense, all actions required to restore the
Property and/or the other affected properties to their precontamination
condition ("Restoration"). Notwithstanding the foregoing, Tenant shall undertake
no Restoration respecting the Property without first obtaining Landlord's
written approval. Tenant shall carry out any approved Restoration in compliance
with all Regulations. Tenant shall not undertake any Restoration, nor enter into
any settlement agreement, consent decree or other compromise with respect to any
claims, relating to any Hazardous
42
Material in any way connected with the Property without first notifying
Landlord of Tenant's intention to do so and affording Landlord ample opportunity
to appear, intervene or otherwise appropriately assert and protect Landlord's
interests.
(iv) Removal. Upon the termination of this Lease for any
reason, Tenant shall remove from the Property all Hazardous Material Handled by
Tenant and/or its Agents and shall cause such Hazardous Material to be stored,
treated, transported and/or disposed of in compliance with all applicable
Regulations. Any Hazardous Material which Tenant removes from the Property shall
be removed solely by duly licensed haulers and transported to and disposed of at
duly licensed facilities for the final disposal of such Hazardous Material.
Tenant shall deliver to Landlord copies of all manifests and other documentation
relating to the Handling of any Hazardous Material reflecting its legal and
proper removal, storage, treatment, transportation and/or disposal. Tenant
shall, at its sole cost and expense, repair any and all damage to the Property
resulting from Tenant and/or its Agents' removal of Hazardous Material. Tenant's
obligation to pay rent shall continue until Tenant completes such removal and
effects such repairs.
(v) Tenant's Written Confirmation. Tenant shall, from time
to time throughout the term of this Lease, execute such certificates or other
documents as Landlord may request concerning Tenant's best knowledge and belief
regarding the presence of Hazardous Material in, on, about or under the
Property.
(vi) Tenant's Duty to Notify Landlord. Tenant shall notify
Landlord in writing immediately on becoming aware of: (1) any action threatened,
instituted or completed by any governmental or regulatory agency or private
person with respect to the Property or any adjoining property relating to
Hazardous Material; (2) any claim threatened or made by any person or entity
against Tenant, Landlord, the Property or any adjoining landowner or property
for personal injury, compensation or any other matter relating to Hazardous
Material; and (3) any reports made by or to any governmental or regulatory
agency with respect to the Property or any adjoining property relating to
Hazardous Material, including without limitation, any complaints, notices or
asserted violations. Tenant shall supply to Landlord within five Days after
Tenant first receives or sends the same, copies of all claims, reports,
complaints, notices, warnings, asserted violations or other documents relating
in any way to the Property.
(b) Landlord's Rights. Landlord and its Agents and
representatives shall have the right to communicate, verbally or in writing,
with any governmental or regulatory agency or any environmental consultant on
any matter with respect to the Property relating to Hazardous Material. Landlord
shall be entitled to copies of any and all notices, inspection reports or other
documents issued by or to any such governmental or regulator agency or
consultant with respect to the Property relating to Hazardous Material.
(c) Tenant's Duty to Indemnify. If the Handling by Tenant and/or
its Agents of Hazardous Material on or about the Property results in
contamination of the Property and/or the surrounding environment, or if any
lender or governmental agency requires an investigation to determine whether
there has been any contamination of the Property or any adjoining property as a
result of Tenant and/or its Agents Handling of Hazardous Material, then Tenant
shall indemnify, defend and hold Landlord all partners or other affiliates of
Landlord, and all directors, officers, shareholders, employees, Agents,
contractors, attorneys and/or partners of any of the foregoing harmless from any
and all claims, damages, penalties, fines, costs, liabilities and losses
(including, without limitation, diminution in value of the Property, damages for
the loss or restriction on use of rental or usable space or of any other amenity
of the Property, damages arising from any adverse impact on marketing of space
in the Property, other consequential damages and sums paid in settlement of
claims, attorneys' fees, consultants' fees and experts' fees) which arise during
or after the lease term as a result of such contamination. Tenant's
indemnification of Landlord includes, without limitation, costs incurred in
connection with removal or Restoration required by any governmental or
regulatory agency and/or private persons because of the presence of Hazardous
Material in the soil or ground water in, on, about or under the Property or any
43
adjoining property as a result of the acts of Tenant and/or its Agents and any
and all reasonable legal fees and expenses incurred by Landlord with respect to
such claims, demands, investigations and responses.
(d) Right of Entry. If contamination of the Property by Hazardous
Material occurs or if any lender or governmental agency requires an
investigation to determine whether there has been any contamination of the
Property or any adjoining property, Landlord and its Agents shall have the
right, at any reasonable time following notice to Tenant and from time to time
to enter upon the Premises to perform monitoring, testing or other analyses, and
to review all applicable documents, notices, correspondence or other materials.
If contamination resulted from the conduct of Tenant and/or its Agents, Tenant
shall pay all costs and expenses reasonably incurred by Landlord in connection
with such investigation, monitoring, and testing. Such sums shall be due and
payable by Tenant when Landlord delivers its invoice to Tenant for such charges.
(e) Allocation of Responsibilities. ALL LIABILITIES ARISING FROM
THE HANDLING OF HAZARDOUS MATERIAL IN, ON, UNDER, AND/OR ABOUT THE PROPERTY OR
ANY ADJOINING PROPERTY BY TENANT AND/OR ITS AGENTS, SHALL REMAIN TENANT'S SOLE
RESPONSIBILITY. NOTWITHSTANDING ANYTHING IN THIS LEASE, NO ACT BY LANDLORD OR
ITS AGENTS SHALL BE CONSTRUED TO TRANSFER TO LANDLORD ANY OBLIGATIONS, DUTIES,
LIABILITIES OR RESPONSIBILITIES PERTAINING TO TENANT'S COMPLIANCE WITH ANY
REGULATION RELATING TO THE HANDLING OF HAZARDOUS MATERIALS. NOTWITHSTANDING THE
EXPIRATION OR TERMINATION OF THIS LEASE AND NOTWITHSTANDING ANY OTHER PROVISION
OF THIS LEASE, TENANT SHALL RETAIN ALL LIABILITY AND RESPONSIBILITY FOR
COMPLIANCE WITH REGULATIONS CONCERNING TENANT AND ITS AGENT'S HANDLING OF
HAZARDOUS MATERIAL. TENANT SHALL INDEMNIFY, DEFEND AND HOLD LANDLORD AND ITS
AGENTS, REPRESENTATIVES, PARTNERS, EMPLOYEES, SUCCESSORS AND ASSIGNS HARMLESS
FROM ALL SUCH COSTS AND EXPENSES AS MAY BE ASSOCIATED WITH SUCH COMPLIANCE.
(f) Inspections. Tenant warrants that Tenant will cooperate as
reasonably necessary and not interfere with completion of any and all
governmental inspections of the Property as required by applicable Regulation.
Tenant shall provide to Landlord a copy of the reports for each such inspection
within 15 Days of Tenant's receipt of such reports.
(g) Survival. Tenant's and Landlord's covenants, agreements and
indemnities set forth in this Section shall survive the expiration or
termination of this Lease and shall not be affected by any investigation, or
information obtained as a result of any investigation, by or on behalf of
Landlord or any prospective Tenant.
(h) Landlord's Obligations.
(i) Restrictions on Hazardous Material. Landlord shall not
cause or permit Hazardous Material to be Handled on, about or under the Property
except in compliance with all Regulations respecting such Hazardous Material.
(ii) Compliance With Regulations. If any Hazardous
Material is Handled on or about the Property by Landlord, Landlord shall bear
all financial and other responsibility for ensuring that the Handling of such
material complies with all Regulations respecting such Hazardous Material and
with the highest standards prevailing in the industry for the Handling of such
Hazardous Material.
(iii) Restoration. If, as a result of Landlord's Handling
Hazardous Material upon the Property or any adjoining property, prior to or
during the Term, any contamination of the Property occurs,
44
Landlord shall promptly take all actions as are necessary to return the Property
and/or the surrounding environment to their pre-contamination condition.
(iv) Duty to Notify Tenant. Landlord shall notify Tenant
in writing within ten days of becoming aware of: (1) any enforcement, cleanup,
remediation or other action threatened, instituted or completed by any
governmental or regulatory agency or private person with respect to the Property
relating to Hazardous Material; (2) any claim threatened or made against
Landlord with respect to the Property, Tenant or the Property for personal
injury, compensation or any other matter relating to Hazardous Material; and (3)
any reports made by or to any governmental or regulatory agency respecting the
Property, any complaints, notices or asserted violations in connection
therewith. Landlord shall also supply to Tenant copies of all claims, reports,
complaints, notices, warnings, asserted violations or other documents relating
to the foregoing.
(v) Landlord's Indemnity of Tenant. If, as a result of
Landlord's or its Agent's acts, the presence of Hazardous Material on the
Property results in contamination of the Property, or if any contamination of
the Property exists as of the date of the commencement of this lease, then
Landlord shall indemnify, defend and hold Tenant, its Agents and representatives
harmless from and against any and all claims, damages, penalties, fines, costs,
liabilities and losses, damages for the loss of or restriction on the use of
space or of any other amenity of the Property and sums paid in settlement of
claims, attorneys' fees, consultants' fees and experts' fees) paid by Tenant as
a result of such contamination.
(vi) Landlord represents and warrants that as of the date
hereof, (which warranty and representation shall be deemed to be remade as of
the Commencement Date) to the best of Landlord's knowledge, no known Hazardous
Materials exist on, under or about the Property.
57. ARBITRATION OF DISPUTES.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS LEASE, THE PROVISIONS OF
THIS SECTION APPLY TO ALL DISPUTES ARISING OUT OF THE LEASE SAVE AND EXCEPT
UNLAWFUL DETAINER PROCEEDINGS; NOTHING IN THIS AGREEMENT SHALL BE INTERPRETED TO
REQUIRE LANDLORD TO SUBMIT UNLAWFUL DETAINER PROCEEDINGS TO ARBITRATION. IF A
CONTROVERSY, CLAIM OR DISPUTE OTHER THAN UNLAWFUL DETAINER PROCEEDINGS AND
ISSUES RAISED IN CONNECTION THEREWITH (COLLECTIVELY "DISPUTE") BETWEEN THE
PARTIES ARISES OUT OF THIS LEASE, THE DISPUTE SHALL BE SUBMITTED TO BINDING
ARBITRATION TO BE CONDUCTED UNDER THE COMMERCIAL ARBITRATION RULES OF THE
AMERICAN ARBITRATION ASSOCIATION; JUDGMENT ON THE ARBITRATOR'S AWARD MAY BE
ENTERED IN ANY COURT OF COMPETENT JURISDICTION. CALIFORNIA CODE OF CIVIL
PROCEDURE SECTION 1283.05 SHALL APPLY TO SUCH ARBITRATION.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISIONS DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU
ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A
COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR
JUDICIAL RIGHTS TO DISCOVERY AND APPEAL UNLESS THOSE RIGHTS ARE SPECIFICALLY
INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION YOU MAY BE COMPELLED TO ARBITRATE
UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO
THIS ARBITRATION PROVISION IS VOLUNTARY.
45
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION
TO NEUTRAL ARBITRATION.
MJ GD
------- -------
Initial Initial
58. NOTICES.
All notices or demands of any kind required or desired to be given
hereunder shall be in writing and mailed postage prepaid by certified or
registered mail, return receipt requested, by personal delivery, or by overnight
delivery via a nationally recognized courier, to the appropriate address
indicated in Paragraph 2 of the Basic Lease Terms or at such other place or
places as either Landlord or Tenant may, from time to time, designate in a
written notice given to the other. Notice shall be deemed to be delivered four
(4) days after the date of mailing thereof, or upon earlier receipt, if sent by
certified or registered mail, upon delivery or attempted delivery, if sent by
personal delivery, and one (1) business day after delivery to a nationally
recognized courier, if sent by overnight delivery.
TENANT: LANDLORD:
SEEKER SOFTWARE, INC. XXXXXXX STREET PARTNERS, LTD.
a Delaware corporation a California limited partnership
By: /s/ Xxx Xxxxxx By: CHASKOW FOUR ASSOCIATES, LTD.
------------------------------- a California limited partnership
its general partner
Its: President and CEO
Print Name: Xxxx Xxxxxx By: CHASKOW FOUR
a California limited partnership
its general partner
By: By: XXXXXX HOLDINGS, INC.
-------------------------------- a California limited partnership
its general partner
Its:
-------------------------------
Print Name: By: /s/Xxxx Xxxxxxxxx
------------------------ ---------------------------------
Xxxx X. Xxxxxxxxx
Vice President
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RIDER NO. 1 TO OFFICE LEASE
This Rider No. 1 To Office Lease ("Rider No. 1") is made and entered
into by and between Xxxxxxx Street Partners, Ltd., a California limited
partnership ("Landlord") and Seeker Software, Inc. a Delaware corporation
("Tenant"), and is dated as of the date set forth on the cover page of the
Office Lease between Landlord and Tenant ("Lease") of which Rider No. 1 is
attached. The promises, covenants, agreements and declarations made and set
forth herein are intended to have the same force and effect as if set forth at
length in the body of the Lease. To the extent that the provisions of this Rider
are inconsistent with the terms and conditions of the Lease, the terms and
conditions hereof shall control.
1. Extension Options. Provided Tenant is not in default hereof, Tenant
shall have one (1) option to renew the Lease for the entire Premises for three
(3) years subject to the following terms and conditions:
A. Notice. Tenant shall give written notice to the Landlord no
less than twelve (12) months in advance of the expiration of the Term, or any
extension thereof, of its intention to exercise this Extension Option. Tenant
shall then have three (3) months to negotiate, on an exclusive basis, the terms
of the extension. Landlord and Tenant shall negotiate in good faith the terms of
the Extension Option. If the parties are unable to agree on the terms of the
extension during said three (3) month period, the initial term shall terminate
as provided for in this Lease and the parties shall have no further obligations
to one another.
B . Monthly Basic Rent. The Monthly Basic Rent for the Extension
Option term shall be the then prevailing market rates for comparable space in
the Building (but, if no comparable space exists in the Building, in similar
buildings located in downtown Oakland).
2. Expansion Option. Provided Tenant is not in default hereof, Tenant
shall have the continuing Right of First Offer to lease any available direct
space on the 14th, 15th or 16th floors of the Building, subordinated only to
other tenants with a priority right as of the date of this Lease. Tenant shall
have ten (10) working days after receipt of Landlord's written notice of
availability to exercise its Right of First Offer. This Right of First Offer
shall extend throughout the Lease Term and any extensions thereof. Terms of the
expansion premises shall be the then prevailing market conditions at the time
the space is leased. Landlord shall not be obligated to fund the cost of tenant
improvements for any expansion premises with a term of less than two (2) years.
In addition, Tenant shall have the continuing Right of First Refusal to lease
Suite 1640 as further defined on Exhibit "A" attached herewith when the space
becomes available for direct lease. Tenant shall have five (5) business days to
accept the terms of a bonafide third party offer for Suite 1640 after receiving
written notice from Landlord.
3. Special Sublease and Assignment Rights. Provided Tenant is not in
default hereof, and notwithstanding anything to the contrary contained in
section 24 of the Lease, Tenant shall have the right to assign in its entirety
or sublease all or any portion of the Premises without consent of the Landlord
to (a) any entity resulting from a merger or consolidation with Tenant or to an
entity that acquires all of the assets or stock of Tenant, or (b) any subsidiary
or affiliate of Tenant or to any entity which controls, is controlled by, or is
under common control with Tenant, and (c) any subcontractor performing duties
related to a contract with Tenant subject to the following terms and conditions:
A. In the case of an assignment, the assignee shall demonstrate
to Landlord financial strength of at least equal to that of Tenant at the time
of the assignment.
B . In the case of a sublease, the use of the sublessee shall be
reasonably the same as Tenant and falls under the classification of General
Office Use and will be subject to section 24(m) of the Lease.
46
47
C . All other assignments and subleasing shall be subject to
section 24 of the Lease.
4. Parking.
A. To the extent Landlord is operating a valet service from the
2101 Xxxxxxx Basement Garage to the Multi-Story Parking Structure, Tenant may
lease up to two (2) of the spaces allocated to the Multi-Story Parking Structure
in paragraph 25 of the Basic Lease Terms for the valet spaces from the 2101
Xxxxxxx Basement Garage to the Multi-Story Parking Structure at prevailing
market rates.
B. Notwithstanding anything to the contrary in Section 39(c) of
the Lease, on an annual basis, Landlord will offer to Tenant any available
parking in the Multi-Story Parking Facility at prevailing market rates.
C. Secured bicycle parking is available at no charge to Tenant on
the first deck of the Multi-Story Parking Facility.
5. Courtesy Shuttle. Landlord will operate a Courtesy Shuttle between
the Multi-Story Parking Facility and the Building between the hours of 7:00am.
to 9:00am on normal workdays. In addition, Landlord will operate the Courtesy
Shuttle between the Building, the 00xx Xxxxxx BART Station and the Multi-Story
Parking Facility between 4:00pm and 8:00pm on normal workdays.
6. Landlord Warranties. Landlord warrants that the Building, Site and
Multi-Story Parking Facility comply with governmental laws and regulations that
are applicable to the Building, Site and Multi-Story Parking Facility, and
except for Tenant's obligations described in Section 55 of the Lease, Landlord
shall be responsible for the costs of compliance with such laws and regulations.
7. Exclusions from Operating Expenses. Notwithstanding anything
contained in the Lease, no expenses incurred for the following shall be included
in Operating Expenses: (i) accountants' or attorneys' fees, costs and
disbursements and other expenses incurred in connection with negotiations or
disputes with tenants or other occupants or prospective tenants or other
occupants, or associated with the enforcement of any leases or the defense of
Landlord's title to or interest in the Property or any part thereof; (ii) costs
incurred due to violation by Landlord or any tenant of the terms and conditions
of any lease; (iii) overhead and profit increment paid to subsidiaries or
affiliates of Landlord, or to any party as a result of a non-competitive
selection process, for management or other services on or to the Property or for
supplies or other materials, to the extent that the costs of such services,
supplies or materials exceed the costs that would have been paid had the
services, supplies or materials been provided by unaffiliated parties on a
competitive basis; (iv) Landlord's general corporate overhead and general
administrative expenses; (v) all items and services for which Tenant or any
other tenant separately reimburses Landlord or pays third persons; (vi)
advertising and promotional expenditures; and (vii) any other expense that under
generally accepted accounting principles and practices would not be considered a
maintenance or operating expense.
8. Exclusions from Real Property Taxes. Notwithstanding anything
contained in the Lease, Real Property Taxes shall not include (i) any taxes
payable by other tenants of the Property under similar provisions of their
respective leases, and (ii) any penalties, fines, interest or charges
attributable to the late payment of any taxes by Landlord.
9. Existing Improvements. Reference is made to the improvements existing
in the Premises as of the Commencement Date plus the improvements to be
installed by Landlord pursuant to paragraph 12 of the Basic Lease Terms and
Exhibit "C" to the Lease (collectively hereinafter referred to as the "Existing
47
48
Improvements"). Notwithstanding anything to the contrary in this Lease, Tenant
shall have no obligation to remove any portion of the Existing Improvements upon
the termination of this Lease.
10. Right of Occupancy. Tenant shall have the right to occupy and use
the entire Suite 1600 Premises for the Term of the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Rider No. 1
as of the date first above written.
TENANT: LANDLORD:
SEEKER SOFTWARE, INC. XXXXXXX STREET PARTNERS, LTD.
a Delaware corporation a California limited partnership
By: ________________________________ By: CHASKOW FOUR ASSOCIATES, LTD.
a California limited partnership
Its: _______________________________ its general partner
Print Name: ________________________ By: CHASKOW FOUR,
a California limited partnership
its general partner
By: ________________________________ By: XXXXXX HOLDINGS, INC.
a California corporation
Its: _______________________________ its general partner
Print Name: ________________________ By: ________________________________
Xxxx X. Xxxxxxxxx
Vice President
48
49
EXHIBIT A
OUTLINE OF FLOOR PLAN OF PREMISES
(ATTACHED)
50
EXHIBIT B
SITE PLAN
(To Be Provided - Including 2101 Xxxxxxx and Multi-Story Parking Facility)
51
EXHIBIT "B-1"
LEGAL DESCRIPTION AND SITE PLAN
OF OFFICE BUILDING AND BASEMENT GARAGE
CITY OF OAKLAND, COUNTY OF ALAMEDA, STATE OF CALIFORNIA
PARCEL ONE:
Beginning at the point or intersection of the southern line of 21st, formerly
Walnut or 22nd, Street, with the western line of Xxxxxxx Street; running thence
southerly along said line of Xxxxxxx Street 145 feet; thence at right angles
westerly 100 feet; thence at right angles northerly 145 feet to said line of
21st Street, and thence easterly along said line of 00xx Xxxxxx is 100 feet to
the point of beginning.
Being a portion of Lots 1 and 4, Block 3, Map of the Pacific Homestead situated
in Oakland, Alameda Co., recorded July 23, 1886, in Book "W" of Deeds, Page 2,
in the office of the County Recorder of Alameda County.
PARCEL TWO:
Beginning at a point on the western line of Xxxxxxx Street distant thereon 145
feet southerly from the point of intersection thereof, with the southern line of
21st Street, formerly 22nd or Walnut Street, running thence at right angles
westerly, 100 feet; thence at right angles southerly, 137 feet, more or less, to
the northern line of Hobart Street, as now opened; thence easterly along said
northern line of Hobart Street, as now opened, 100 feet, more or less, to the
western line of Xxxxxxx Street, and thence northerly along said last named line,
125 feet to the point of beginning.
Being portions of Xxxx 0, 0 xxx 0, Xxxxx 0, Xxx of the Pacific Homestead,
situated in Oakland, Alameda Co., surveyed by X.X. Xxxxxxxx, Esq., recorded July
23), 1866, in Book "W" of Deeds, Page 2, in the office of the County Recorder of
Alameda County.
52
PARCEL THREE:
COMMENCING AT A POINT ON THE WESTERLY LINE OF XXXXXXX STREET, DISTANT THEREON,
ONE HUNDRED AND SEVENTY-FOUR (174) FEET NORTHERLY FROM THE POINT OF INTERSECTION
OF SAID LINE OF XXXXXXX STREET WITH THE NORTHERLY LINE OF LOCUST STREET, OR 23RD
STREET; RUNNING THENCE NORTHERLY ALONG SAID LINE OF XXXXXXX STREET, TWO HUNDRED
AND SIXTY-ONE (261) FEET, MORE OR LESS TO THE SOUTHERLY LINE OF TWENTY-FOURTH
STREET (FORMERLY ELM STREET) THENCE WESTERLY ALONG SAID LINE OF TWENTY-FOURTH
STREET (FORMERLY ELM STREET), ONE HUNDRED AND THREE (103) FEET OR THEREABOUTS TO
THE EASTERLY LINE OF BROADWAY STREET, THENCE SOUTHERLY ALONG SAID EASTERLY LINE
OF SAID BROADWAY STREET, TWO HUNDRED AND SIXTY-NINE AND FORTY-ONE ONE HUNDREDTHS
(269.41) FEET MORE OR LESS TO A POINT ON SAID EASTERLY LINE OF BROADWAY STREET
FROM WHICH A LINE DRAWN EASTERLY AND PARALLEL WITH SAID LOCUST OR 23RD STREET
WILL STRIKE THE POINT OF COMMENCEMENT; THENCE EASTERLY AND PARALLEL WITH SAID
LOCUST STREET OR 23RD STREET, ONE HUNDRED AND SIXTY-NINE (169) FEET AND SIX (6)
INCHES MORE OR LESS, TO THE WESTERLY LINE OF XXXXXXX STREET AND THE POINT OF
COMMENCEMENT.
BEING A PORTION OF BLOCK NO. THIRTEEN (13) AS SAID BLOCK IS LAID DOWN AND
DELINEATED UPON A CERTAIN MAP ENTITLED "MAP OF THE PACIFIC HOMESTEAD, SITUATED
IN OAKLAND, ALAMEDA CO." RECORDED JULY 23RD, 866 IN LIBER -W" OF DEEDS AT PAGES
2 AND 3 THEREOF IN 2'6 THE OFFICE OF THE COUNTY RECORDER OF SAID ALA-MEDA
COUNTY.
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EXHIBIT "B-2"
LEGAL DESCRIPTION AND SITE PLAN
OF MULTI-STORY PARKING FACILITY
CITY OF OAKLAND, COUNTY OF ALAMEDA, STATE OF CALIFORNIA
PARCEL ONE:
BEGINNING AT A POINT ON THE EASTERN LINE OF BROADWAY, WHERE THE SAME IS
INTERSECTED BY THE DIVIDING LINE BETWEEN LOTS 6 AND 7 IN BLOCK 13, AS SAID LOTS
AND BLOCK ARE SHOWN ON THE MAP HEREINAFTER REFERRED TO; WHICH SAID POINT IS
DISTANT ON SAID LINE OF BROADWAY 179.60 FEET, MORE OR LESS, NORTHERLY FROM THE
NORTHERN LINE OF 00XX, XXXXXXXX XXXXXX, XXXXXX; RUNNING THENCE EASTERLY ALONG
THE NORTHERN BOUNDARY LINE OF LOTS 7 AND 8 IN SAID BLOCK 13, AS SAID LOTS AND
BLOCK ARE SHOWN ON THE MAP HEREINAFTER REFERRED TO PARALLEL WITH SAID LINE OF
23RD STREET 59 FEET; THENCE AT RIGHT ANGLES SOUTHERLY 43 FEET; 6 INCHES; THENCE
AT RIGHT ANGLES WESTERLY 15 FEET; THENCE AT RIGHT ANGLES SOUTHERLY 43 FEET, 6
INCHES; THENCE WESTERLY ALONG THE SOUTHERN BOUNDARY LINE OF XXXX 0 XXX 0 XX
XXXXX 00, XXXXXXXX WITH SAID LINE OF 23RD STREET 66 FEET, MORE OR LESS, TO THE
EASTERN LINE OF BROADWAY; AND THENCE NORTHERLY ALONG SAID LAST NAMED LINE 89.80
FEET TO THE POINT OF BEGINNING.
BEING THAT PORTION OF LOT 7 LYING EASTERLY OF THE EASTERN LINE OF BROADWAY, AND
A PORTION OF XXX 0 XX XXXXX 00, XX XXXX XXXX XXX XXXXX ARE SHOWN ON THE "MAP OF
THE PACIFIC HOMESTEAD, SITUATED IN OAKLAND, ALAMEDA COUNTY, SURVEYED BY X.X.
XXXXXXXX, ESQ." RECORDED JULY 23, 1866, IN BOOK W" OF DEEDS AT PAGE 2 AND 3, IN
THE OFFICE OF THE COUNTY RECORDER OF ALAMEDA COUNTY.
PARCEL TWO:
BEGINNING AT A POINT ON THE WESTERN LINE OF XXXXXXX STREET, DISTANT THEREON 130
FEET, 6 INCHES, NORTHERLY FROM THE POINT OF INTERSECTION THEREOF, WITH THE
NORTHERN LINE OF 23RD STREET, FORMERLY CALLED LOCUST STREET, AS SAID STREETS ARE
SHOWN ON THE MAP HEREINAFTER REFERRED TO; RUNNING THENCE NORTHERLY ALONG SAID
LINE OF XXXXXXX STREET 43 FEET, 6 INCHES; THENCE AT RIGHT ANGLES WESTERLY 110
FEET; THENCE AT RIGHT ANGLES SOUTHERLY 43 FEET, 6 INCHES; AND THENCE AT RIGHT
ANGLES EASTERLY 110 FEET TO THE POINT OF BEGINNING. BEING A PORTION OF XXX 0 XX
XXXXX 00, XX XXXX XXX XXX XXXXX ARE SHOWN ON THE "MAP OF THE PACIFIC HOMESTEAD
SITUATED IN OAKLAND, ALAMEDA CO.," FILED JULY 23, 1866, IN BOOK "W" OF DEEDS AT
PAGES 2 AND 3, IN THE OFFICE OF THE COUNTY RECORDER OF ALAMEDA COUNTY.
54
EXHIBIT C
WORK LETTER AGREEMENT
This Work Letter Agreement supplements the Office Lease (the "Lease")
dated ) August 7, 1997 executed concurrently herewith by and between Landlord
and Tenant, covering certain premises described in the Lease (the "Premises").
All terms not defined herein shall have the same meaning as set forth in the
Lease.
1. Construction of Building.
1.1 Landlord has constructed through its contractor, the Multi
Story Parking Facility and Building. In addition, the SUITE 1600 Premises has
been improved for occupancy to the specifications of previous tenants. Tenant
agrees to accept the existing conditions of the Suite 1600 Premises and the
Tenant Improvement Allowance as further defined in Paragraph 12 of the Basic
Lease Terms (the "Allowance") shall be made available to the Tenant for the
purpose of demolishing existing improvements and constructing new improvements
at the direction of Tenant. Thereafter, Landlord shall furnish and install
within the Premises those items of general construction (the "Aggregate
Improvement") shown on the plans and specifications finally approved by Landlord
and Tenant, pursuant to Paragraph 2 below ("Final Plans") in compliance with all
applicable codes and regulations. All Building shell work and Tenant Building
Work (as defined below) shall be performed only by Landlord's contractor.
2. Construction Plans for Premises.
All plans and drawings required by this Paragraph shall be
prepared in accordance with the schedule in Paragraph 7 below.
2.1 Tenant shall furnish to Landlord for Landlord's approval
preliminary space plans sufficient to convey the architectural design of the
Premises, including preliminary partition layout and reflective ceiling plans
("Tenant's Design Development Drawings"). If Landlord shall disapprove of any
portion of Tenant's Design Development Drawings, Landlord shall advise Tenant of
such revisions, and reasons therefor, as are reasonably required by Landlord for
the purpose of obtaining approval. Tenant shall then submit to Landlord for
Landlord's approval, a redesign of Tenant's Design Development Drawings,
incorporating the revisions requested by Landlord and such modifications thereof
as are suggested by Tenant, said modifications to be subsequently approved by
Landlord prior to Tenant's submission of Final Plans.
2.2 Requirements of Tenant's Final Plans.
Tenant's Final Plans shall:
(i) Be compatible with the Building shell and with the
design, construction and equipment of the Building;
(ii) Comply with all applicable laws and ordinances, and
the rules and regulations of all governmental authorities having jurisdiction;
(iii) Comply with all applicable insurance regulations for
a fire resistive Class A Building; and
(iv) Include locations and complete dimensions.
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2.4 Changes at Tenant's Expense.
If the Final Plans or any amendment thereof or supplement
thereto shall require changes in the Building shell, the increased cost of the
Building shell work caused by such changes shall be charged against Tenant to
the extent such increases exceed the Allowance. The cost thereof shall include
all direct architectural and/or engineering fees and expenses in connection
therewith, as well as including compensation by Tenant for the costs of any
delays which arise from such changes, such costs including but not limited to
lost rent.
3. Allowance for Work.
3.1 Tenant shall receive from Landlord the Allowance set forth in
Paragraph 12 of the Basic Lease Terms, which Allowance shall be used solely for
the design and installation of the Tenant Building Work. All items of Tenant
Building Work, whether or not the cost thereof is covered by the Allowance,
shall become the property of Landlord upon expiration or earlier termination of
the Lease and shall remain on the Premises at all times during the Term of this
Lease. Tenant shall be entitled to no payment or rent reduction for any part of
the Allowance not used by Tenant.
3.2 Prior to the commencement of any Tenant Building Work,
Landlord shall submit to Tenant a written estimate of Work Cost (as hereinafter
defined) of all Tenant Building Work which written estimate shall be based on
the Final Plans. Thereupon Tenant shall either approve the estimate or
disapprove specific items and submit to Landlord revisions of Final Plans to
reflect the deletion of and/or substitution for such disapproved items.
Submission and approval of the Work Cost estimate shall proceed in accordance
with the schedule provided in Paragraph 7 below. Upon Tenant's approval of said
estimate, such approved estimate to be hereinafter known as the "Work Cost
Statement", Landlord shall have the right to purchase special installations
requiring extended material delivery lead items as set forth on the Final Plans
and to commence the construction of the items included in said Work Cost
Statement pursuant to Paragraph 4.1 hereof.
3.3 Until Tenant approves the estimate, Landlord shall be under
no obligation to perform the installation of the items of Tenant Building Work
and Tenant shall have no obligation to lease the Premises until the Tenant
Building Work has been completed.
4. Construction.
4.1 Following Tenant's approval of the estimate described in
Paragraph 3.2 Landlord shall commence and diligently proceed with the
construction of all of the Tenant Building Work, subject to delays beyond the
reasonable control of Landlord or its contractor or contractors. Promptly upon
the commencement of the Tenant Building Work, Landlord shall furnish Tenant with
a schedule setting forth the projected completion dates therefor and showing the
deadlines for any actions required to be taken by Tenant during such
construction, and Landlord may from time to time during the prosecution of the
Tenant Building Work modify or amend such schedule due to delays encountered by
Landlord. Landlord shall make a reasonable effort to meet such schedule (as the
same may be modified or amended).
4.2 As preparation of the Final Plans and construction of the
Tenant Building Work progress, Landlord shall be solely responsible for the
payment of the Work Cost up to the amount of the Allowance.
4.3 After Landlord has paid for the Work Cost up the amount of
the Allowance, Tenant shall bear the cost (in the manner described in
Subparagraph 4.4 below) of the Work Cost in excess of the Allowance, payable
directly to Landlord upon receipt of invoices from Landlord's contractor
certified by Tenant's architect.
2
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4.4 Landlord shall not be obligated to make any payment on behalf
of Tenant. Tenant shall pay Landlord for amounts due under this Exhibit "C"
within ten (10) days of billing. Should Tenant reasonably dispute the amount of
any billing, Tenant shall make payment on all portions which are not disputed.
Any unpaid portions, whether undisputed or disputed on which Landlord ultimately
prevails, shall bear interest from the due date at the annual rate of four
percent (4%) above the prime interest rate then being charged by Bank of
America, N.T. & S.A., Los Angeles Main Office, but not to exceed the maximum
legal rate permitted to be charged on the date such interest shall commence to
accrue.
5. Work Cost.
"Work Cost" means (i) all design and engineering fees incurred by
Tenant in connection with preparation of the preliminary space plans and Final
Plans, plus (ii) the actual costs and charges for material and labor,
contractor's profit and general overhead incurred by Landlord in having Tenant
Building work done, plus (iii) all the actual out-of-pocket expenditures
incurred by Landlord in obtaining and processing all required governmental
permits.
6. Decorating by Tenant.
Landlord shall, consistent with its obligation to other tenants
then in occupancy in the Building, make an elevator reasonably available to
Tenant in connection with initial decorating, furnishing and moving into the
premises. Tenant shall pay for any after-hours staffing, if so required, of the
elevator.
7. Schedule.
Preparation and approval of Final Plans and the Work Cost
Statement shall proceed as indicated below and each action shall be completed on
or before the date herein specified.
ACTION RESPONSIBILITY DUE DATE
------------------------------------------------------------- -------------- --------
(i) Delivery of instructions and Building background Landlord ________________
drawings to Tenant's architect.
(ii) Submission of Tenant's Design Development Tenant ________________
Drawings to Landlord. ________________
(iii) Delivery of written notice approving or disapproving Landlord ________________
Tenant's Design Development Drawings.
(iv) Submission if necessary, or redesign or Tenant's Tenant ________________
Design Development Drawings.
(v) Delivery of written notice of final approval of Landlord ________________
Tenant's Design Development Drawings.
3
57
(vi) Submission of Final Plans to Landlord Tenant ________________
(vii) Delivery of written notice approving or disapproving Landlord ________________
Final Plans.
(viii) Submission, if necessary of redesigning of Final Plans. Tenant ________________
(ix) Delivery of written notice of final approval of Final Landlord ________________
Plans.
(x) Submission of Work Cost estimate to Tenant Landlord ________________
(xi) Delivery of written notice of final approval of Work Tenant ________________
Cost Statement.
8. Delays.
It is agreed that notwithstanding the Estimated Commencement Date
provided in Paragraph 15 of the Basic Lease Terms, Tenant's obligation for the
payment of rental as defined within the Lease shall not commence until Landlord
has substantially completed all work to be performed by Landlord in this Work
Letter Agreement; provided, however, that if Landlord shall be delayed in
substantially completing said work as a result of.
(i) Tenant's failure to complete any action item on or before the
due date which is the responsibility of Tenant, or
(ii) Tenant's changes to Final Plans after the final approval
date in Subparagraph 7 (ix) above, or
(iii) Tenant's request for materials, finishes, or installations
other than Building Standard Work, or
(iv) Any delay of Tenant in making payment to Landlord for
Tenant's share of Work Costs, then the term of Lease shall nevertheless commence
and the Commencement Date shall be the date it would have been had the delay not
occurred, as Landlord reasonably shall determine.
4
58
EXHIBIT D
SAMPLE FORM OF NOTICE OF LEASE COMMENCEMENT
To: Date: __________________________________________________________________
Re: Lease dated ______________, 19__, between XXXXXXX STREET PARTNERS, LTD., A
CALIFORNIA LIMITED PARTNERSHIP ("Landlord"), and _______________, ("Tenant"),
concerning Suite ___________located at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx.
Gentlemen:
In accordance with the subject Lease, we wish to advise and/or confirm
as follows:
1. Subject to Paragraph 3 of the Lease, that the Premises have been
accepted herewith by the Tenant as being substantially complete in accordance
with the subject Lease.
2. That the Tenant has possession of the subject Premises and
acknowledges that under the provisions of the subject Lease, the term of said
Lease shall commence as of ______________ for a term of ending on
________________.
3. That in accordance with the subject Lease, rental commenced to accrue
on _____________.
4. If the commencement date of the subject Lease is other than the first
day of the month, the first billing will contain a pro rate adjustment. Each
billing thereafter, with the exception of the final billing, shall be for the
full amount of the monthly installment as provided for in said Lease.
5. Rent is due and payable in advance on the first day of each and every
month during the term of said Lease. Your rent checks should be made payable to
________________________________________________________________________________
_____________________________________________________________________________ at
________________________________________________________________________________
TENANT: LANDLORD:
___________________________________ XXXXXXX STREET PARTNERS, LTD.
___________________________________ a California limited partnership
By: _______________________________ By: CHASKOW FOUR ASSOCIATES, LTD.
a California limited partnership
Its: ______________________________ its general partner
Print Name: _______________________ By: CHASKOW FOUR,
a California limited partnership
its general partner
59
By: _______________________________ By: XXXXXX HOLDINGS, INC.
a California corporation
Its: ______________________________ its general partner
Print Name: _______________________
By: ____________________________________
Xxxx X. Xxxxxxxxx
Vice President
2
60
EXHIBIT E
SAMPLE FORM OF TENANT ESTOPPEL CERTIFICATE
The undersigned, XXXXXXX STREET PARTNERS, LTD., A CALIFORNIA LIMITED PARTNERSHIP
("Landlord"), with a mailing address c/x Xxxxxx Development Corp., 0000 Xxxxx
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, and, ("Tenant"), hereby certify to
________________________________________________________________________________
________________________________________________________________________________
_______________________________________________________ as follows:
1. Attached hereto is a true, correct and complete copy of that certain
lease dated ______________, 19_, between Landlord and Tenant (the "Lease"),
which demised premises located at 0000 Xxxxxxx, Xxxxxxx, Xxxxxxxxxx. The Lease
is now in full force and effect and has not been amended, modified or
supplemented, except as set forth in Paragraph 4 below:
2. The term of the Lease commended on _______________, 19__.
3. The term of the Lease shall expire on _______________, 19__.
4. The Lease has (Initial One)
( ) not been amended, modified, supplemented, extended, renewed
or assigned.
( ) been amended, modified, supplemented, extended, renewed or
assigned by the following described agreements, copies of which are attached
hereto:
_________________________________________________________________
_________________________________________________________________
5. Tenant has accepted and is now in possession of said premises.
6. Tenant and Landlord acknowledge that the Lease will be assigned to
and that no modification, adjustment, revision or cancellation of the Lease or
amendments thereto shall be effective unless written consent of _______________
is obtained, and that until further notice, payments under the Lease may
continue as heretofore.
7. The amount of fixed monthly rent is $ _______________.
8. The amount of security deposits (if any) is $ _____________. No other
security deposits have been made.
9. Tenant is paying the full lease rental, which has been paid in full
as of the date hereof. No rent under the Lease has been paid for more than
thirty (30) days in advance of its due date.
10. All work required to be performed by Landlord under the Lease has
been completed.
11. There are no defaults on the part of the Landlord or Tenant under
the Lease.
61
12. Tenant has no defense as to its obligations under the Lease and
claims no set-off or counterclaim against Landlord.
13. Tenant has no right to any concession (rental or otherwise) or
similar compensation in connection with renting the space it occupies, except as
provided in the Lease.
All provisions of the Lease and the amendments thereto (if any) referred
to above are hereby ratified.
The foregoing certification is made with the knowledge that
_____________ is about to fund a loan to Landlord, and that ________________ is
relying upon the representations herein made in funding such loan.
DATED: __________, 19___
TENANT: LANDLORD:
__________________________________ XXXXXXX STREET PARTNERS, LTD.
__________________________________ a California limited partnership
By: ______________________________ By: CHASKOW FOUR ASSOCIATES, LTD.
a California limited partnership
Its: _____________________________ its general partner
Print Name: ______________________ By: CHASKOW FOUR,
a California limited partnership
its general partner
By: ______________________________ By: XXXXXX HOLDINGS, INC.
a California corporation
Its: _____________________________ its general partner
Print Name: ______________________ By: _________________________________
Xxxx X. Xxxxxxxxx
Vice President
2
62
EXHIBIT F
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be
installed or displayed on any part of the outside or inside of the Building
without the prior written consent of Landlord. Landlord shall have the right to
remove, at Tenant's expense and without notice, any sign installed or displayed
in violation of this rule. All approved signs or lettering on doors, windows and
walls shall be printed, painted, affixed or inscribed at the expense of Tenant
by a person approved by Landlord, using materials of Landlord's choice and in a
style and format approved by Landlord.
2. Tenant must use Landlord's window coverings on all exterior windows.
No awning shall be permitted on any part of the Premises except as approved by
Landlord. Tenant shall not place anything against or near glass partitions or
doors or windows which may appear unsightly from outside the Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits,
entrances, elevators or stairways of the Building. The halls, passages, exits,
entrances, elevators, and stairways are not for the general public, and Landlord
shall in all cases retain the right to control and prevent access thereto of all
persons whose presence in the judgment of Landlord would be prejudicial to the
safety, character, reputation and interests of the Building and its tenants;
provided that nothing herein contained shall be construed to prevent such access
to persons with whom any tenant normally deals in the ordinary course of its
business, unless such persons are engaged in illegal activities. No tenant and
no employee or invitee of any tenant shall go upon the roof of the Building
without Landlord's consent.
4. The directory of the Building will be provided exclusively for the
display of the name and location of tenants only, and Landlord reserves the
right to exclude any other names therefrom.
5. All cleaning and janitorial services for the Building and the
Premises generally consistent with cleaning and janitorial sources furnished in
other first-class office buildings in the City of Oakland shall be provided
exclusively through Landlord, and except with the written consent of Landlord,
no person or persons other than those approved by Landlord shall be employed by
Tenant or permitted to enter the Building for the purpose of cleaning the same.
Tenant shall not cause any unnecessary labor by carelessness or indifference to
the good order and cleanliness of the Premises. Landlord shall not in any way be
responsible to any Tenant for any loss of property on the Premises, however
occurring, or for any damage to any Tenant's property by the janitor or any
other employee or any other person.
6. Landlord may make a reasonable charge for any additional keys. If
Tenant alters any lock or installs a new lock or bolt on any door of its
Premises, such lock shall comply with Building standards and Tenant will furnish
Landlord a key to the new lock. Tenant, upon the termination of its tenancy,
shall deliver to Landlord the keys of all doors which have been furnished to
Tenant, and in the event of loss of any keys so furnished, shall pay Landlord
its actual reasonable cost therefor.
7. Tenant shall not install any radio or television antenna, loudspeaker
or other device on the roof or exterior walls of the Building. Tenant shall not
interfere with radio or television broadcasting or reception from or in the
Building or elsewhere. If Tenant requires telegraphic, telephonic, burglar alarm
or similar services, it shall first obtain, and comply with, Landlord's
instructions in their installation.
63
8. Elevators shall be available for special uses by all tenants in the
Building, subject to such reasonable scheduling as Landlord in its discretion
shall deem appropriate. No equipment, materials, furniture, packages, supplies,
merchandise or other property will be received in the Building or carried in the
elevators except between such hours and in such elevators as may be designated
by Landlord. The removal of any equipment, materials, furniture, packages,
supplies, merchandise or other property from the Building must be accompanied by
a signed Building Pass authorizing the removal of same.
9. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. Landlord shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the Building. Heavy objects, if such objects are considered
necessary by Tenant, as determined by Landlord, shall stand on such platforms as
determined by Landlord to be necessary to properly distribute the weight.
Business machines and mechanical equipment belonging to Tenant, which cause
noise or vibration that may be transmitted to the structure of the Building or
to any space therein to such a degree as to be objectionable to Landlord (in its
sole discretion) or to any tenants in the Building, shall be placed and
maintained by Tenant, at Tenant's expense, on vibration eliminators or other
devices sufficient to eliminate noise or vibration. The persons employed to move
such equipment in or out of the Building must be acceptable to Landlord.
Landlord will not be responsible for loss of, or damage to, any such equipment
or other property from any cause, and all damage done to the Building or
maintaining or moving such equipment or other property shall be repaired at the
expense of Tenant.
10. Tenant shall not use or keep in the Premises any kerosene, gasoline
or inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment, with
the prior written approval of Landlord. Tenant shall not use or permit to be
used in the Premises any foul or noxious gas or substance, or permit or allow
the Premises to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors or
vibrations, nor shall Tenant bring into or keep in or about the Premises any
birds or animals, except seeing-eye dogs when accompanied by their masters.
11. Tenant shall not use any method of heating or air-conditioning other
than that supplied or approved by Landlord.
12. Tenant shall not waste electricity, water or air-conditioning and
agrees to cooperate fully with Landlord to assure the most effective operation
of the Building's heating and air-conditioning and to comply with any
governmental energy-saving rules, laws or regulations of which Tenant has actual
notice, and shall refrain from attempting to adjust controls other than room
thermostats specifically installed for Tenant's use. Tenant shall keep corridor
doors closed, and shall close window coverings at the end of each business day.
Heat and air-conditioning shall be provided during ordinary business hours of
generally recognized business days, but not less than the hours of 8:00 A.M. to
6:00 P.M. on Monday through Friday (excluding in any event Saturdays, Sundays
and legal holidays, it being understood that legal holidays shall mean and refer
to those holidays of which Landlord provides Tenant with reasonable prior
written notice which shall in any event include those holidays on which the New
York Stock Exchange is closed). Requests for overtime heating and air
conditioning must be submitted to the office of the Building by 12:00 noon the
prior day on normal weekdays and by 9:00 am on Friday for Saturday and Sunday
use and by 12:00 noon two days in advance of a holiday. Tenant agrees to pay for
said overtime services at the currently determined rate as set by Building based
on the actual cost for such services.
13. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and address of the Building.
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14. Landlord reserves the right to exclude from the Building between the
hours of 6:00 P.M. and 8:00 A.M. the following day, or such other hours as may
be established from time to time by Landlord, and on Saturdays, Sundays and
legal holidays, any person unless that person is known to the person or employee
in charge of the Building and has a pass or is properly identified. Tenant shall
be responsible for all persons for whom it requests passes and shall be liable
to Landlord for all acts of such persons. Landlord shall not be liable for
damages for any error with regard to the admission to or exclusion from the
Building of any person. Landlord reserves the right to prevent access to the
Building in case of invasion, mob, riot, public excitement or other commotion by
closing the doors or by other appropriate action.
15. Tenant shall close and lock the doors of its Premises and entirely
shut off all water faucets or other water apparatus, and, except with regard to
Tenant's computers and other equipment which requires utilities on a 24-hour
basis, all electrical appliances and equipment before Tenant and its employees
leave the Premises. Tenant shall be responsible for any damage or injuries
sustained by other tenants or occupants of the Building or by Landlord for
noncompliance with this rule.
16. [Intentionally Deleted]
17. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees or
invitees, shall have caused it.
18. Tenant shall not sell, or permit the sale at retail, of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise to the
general public in or on the Premises. Tenant shall not make any room-to-room
solicitation of business from other tenants in the Building. Canvassing,
soliciting and distribution of handbills or any other written material, and
peddling in the Building or the Site are prohibited, and each tenant shall
cooperate to prevent same. Tenant shall not use the Premises for any business or
activity other than that specifically provided for in Tenant's Lease.
19. Tenant shall not xxxx, drive nails, screw or drill into the
partitions, woodwork or plaster or in any way deface the Premises or any part
thereof, except to install normal wall hangings. Landlord reserves the right to
direct electricians as to where and how telephone and telegraph wires are to be
introduced to the Premises. Tenant shall not cut or bore holes for wires. Tenant
shall not affix any floor covering to the floor of the Premises in any manner
except as approved by Landlord. Tenant shall repair any damage resulting from
noncompliance with this rule.
20. Tenant shall not install, maintain or operate upon the Premises any
vending machine without the written consent of Landlord.
21. Landlord reserves the right to exclude or expel from the Building
any person who, in Landlord's judgment, is intoxicated or under the influence of
liquor or drugs or who is in violation of any of the Rules and Regulations of
the Building.
22. Tenant shall store all its trash and garbage within its Premises.
Tenant shall not place in any trash box or receptacle any material which cannot
be disposed of in the ordinary and customary manner of trash and garbage
disposal. All garbage and refuse disposal shall be made in accordance with
directions issued from time to time by Landlord.
23. The Premises shall not be used for the storage of merchandise held
for sale to the general public, or for lodging or for manufacturing of any kind,
nor shall the Premises be used for any improper, immoral or
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objectionable purpose. No cooking shall be done or permitted by any tenant on
the Premises, except that used by Tenant of Underwriters' Laboratory-approved
equipment for brewing coffee, tea, hot chocolate and similar beverages shall be
permitted, and the use of a microwave oven shall be permitted, provided that
such equipment and use is in accordance with all applicable federal, state,
county and city laws, codes, ordinances, rules and regulations.
24. Tenant shall not use in any space or in the public halls of the
Building any mailcarts or hand trucks except those equipped with rubber tires
and side guards or such other material handling equipment as Landlord may
approve. Tenant shall not bring any other vehicles of any kind into the
Building.
25. Without the written consent of Landlord, Tenant shall not use the
name of the Building in connection with or in promoting or advertising the
business of Tenant except as Tenant's address.
26. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
27. Tenant assumes any and all responsibility for protecting its
Premises from theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to the Premises closed.
28. The requirements of Tenant will be attended to only upon appropriate
application to the office of the Building by an authorized individual. Employees
of Landlord shall not perform any work or do anything outside of their regular
duties unless under special instructions from Landlord, and no employee of
Landlord will admit any person (Tenant or otherwise) to any office without
specific instructions from Landlord.
29. Landlord may waive any one or more of these Rules and Regulations
for the benefit of Tenant or any other tenant, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of Tenant
or any other tenant, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all of the tenants of the Building.
30. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of premises in the Building.
In the event these Rules and Regulations conflict with any provision of the
Lease, the Lease shall control.
31. Landlord reserves the right to make such other and reasonable Rules
and Regulations as, in its judgment, may from time to time be needed for safety
and security, for care and cleanliness of the Building and for the preservation
of good order therein. Tenant agrees to abide by all such Rules and Regulations
hereinabove stated and any additional rules and regulations which are adopted.
32. [Intentionally Deleted]
33.Tenant shall be responsible for the observance of all of the
foregoing rules by Tenant's employees, agents, clients, customers, invitees and
guests.
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PARKING RULES AND REGULATIONS
1. Tenant and Authorized Users shall not park vehicles in any parking
areas designated by Landlord as areas for parking by visitors to the Building.
Tenant and Authorized Users shall not leave vehicles in the Building parking
areas overnight nor park any vehicles in the Building parking areas other than
automobiles, motorcycles, motor driven or non-motor driven bicycles or
four-wheeled trucks. Landlord may, in its sole discretion, designate separate
areas for bicycles and motorcycles.
2. Cars must be parked entirely within the stall lines painted on the
floor.
3. All directional signs and arrows must be observed.
4. The speed limit shall be 5 miles per hour.
5. Parking is prohibited:
(a) In areas not striped for parking;
(b) In aisles;
(c) Where "No Parking" or "Handicap" signs are posted;
(d) On ramps;
(e) In crosshatched areas;
(f) In such other areas as may be designated by Landlord, its
agent, lessee, or licensee.
6. Parking stickers or any other device or form of identification
supplied by Landlord shall remain the property of Landlord. Such parking
identification device must be displayed as requested and may not be mutilated in
any manner. The serial number of the parking identification device may not be
obliterated. Devices are not transferable, and any device in the possession of
an unauthorized holder will be void. There will be a replacement charge to the
Tenant or Authorized User of $10.00 for loss of any magnetic parking card or
other parking identification device. Landlord acknowledges that Tenant shall be
entitled to a greater number of parking stickers or other devices or forms of
identification than parking spaces allotted to Tenant.
7. Garage managers or attendants are not authorized to make or allow any
exceptions to these Rules and Regulations.
8. Every Authorized User is requested to park and lock his own car. All
responsibility for damage to cars to be repaired is assumed by Authorized Users.
Tenant shall repair or cause to be repaired at its sole cost and expense any and
all damage to the Building parking facility or any part thereof caused by Tenant
or its Authorized Users or resulting from vehicles of Authorized Users.
9. Loss or theft of parking identification devices from automobiles must
be reported to the garage manager immediately. Any parking identification
devices found on any unauthorized car will be confiscated and the illegal holder
will be subject to prosecution. Lost or stolen devices previously reported and
then found must be reported found to the office of the garage immediately.
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10. Spaces are for the express purpose of one automobile per space.
Washing, waxing, cleaning or servicing of any vehicle by the Authorized User
and/or his agents is prohibited. Storage of vehicles for periods exceeding one
week is prohibited and said vehicles shall be subject to towing.
11. The garage management reserves the right to refuse the issuance of
monthly stickers or other parking identification devices to any Tenant,
Authorized User, or person and/or his agents or representatives who willfully
refuse to comply with the above Rules and Regulations or any City, State or
Federal ordinance, law or agreement.
12. Authorized Users shall not load or unload in areas other than those
designated by Landlord for such activities.
13. Authorized Users and unauthorized users parked in prohibited areas
are subject to towing at their own expense.
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NOTICE OF LEASE COMMENCEMENT
Date: December 31, 1998
To: Seeker Software, Inc., a Delaware corporation.
Re: First Amendment to Office Lease dated November 10, 1998 between XXXXXXX
STREET PARTNERS, LTD., a California Limited Partnership ("Landlord"), and SEEKER
SOFTWARE, INC., a Delaware corporation, ("Tenant"), concerning Suite 1640
located at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx.
IN ACCORDANCE WITH the subject First Amendment to Office Lease ("Amendment"),
Landlord and Tenant agree to the following:
1. The Premises have been accepted herewith by Tenant as being
substantially complete in accordance with the subject Amendment, and there are
no known deficiencies in construction.
2. Tenant has taken possession of the subject Premises effective
December 7, 1998.
3. Rent as set forth in the Amendment commenced on December 7, 1998.
4. If the commencement date of the subject Amendment is other than the
first day of the month, the first billing will contain a pro rata adjustment.
Each billing thereafter, with the exception of the final billing, shall be for
the full amount of the monthly installment as provided for in said Amendment.
5. Rent is due and payable in advance on the first day of each and every
month during the term of said Amendment. Checks should be made payable to:
Xxxxxxx Street Partners, LTD. X/X Xxxx xx Xxxxxxx X.X. Xxx 00000 Xxx Xxxxxxxxx,
CA 94160-3134
Landlord and Tenant hereby agree to the foregoing as of the date first written
above.
"LANDLORD" "TENANT"
XXXXXXX STREET PARTNERS, LTD., SEEKER SOFTWARE, INC.,
a California Limited Partnership a Delaware Corporation
By: CHASKOW FOUR ASSOCIATES, LTD., By: ________________________________
a California Limited Partnership,
its General Partner Print Name: ________________________
By: CHASKOW FOUR Its: _______________________________
a California Limited Partnership,
its General Partner By: ________________________________
By: Xxxxxx Holdings, Inc. Print Name:
a California Corporation,
its General Partner Its: _______________________________
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