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EXHIBIT 10.7
LEASE
BETWEEN
THE TRAVELERS INSURANCE COMPANY,
a Connecticut corporation, as Landlord,
and
ACADEMIC SYSTEMS CORPORATION,
a California corporation, as Tenant
000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx
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TABLE OF CONTENTS
Page
----
1. Basic Terms ............................................. 1
2. Effect of Reference to Basic Terms ...................... 3
3. Lease of Premises ....................................... 3
4. Completion by Landlord................................... 3
5. Term .................................................... 3
6. Use of Premises ......................................... 3
7. Rent .................................................... 4
8. Security Deposit......................................... 6
9. Insurance and Indemnification ........................... 7
10. Damage by Fire or Other Casualty; Casualty Insurance .... 10
11. Condemnation ............................................ 12
12. Non-Abatement of Rent ................................... 13
13. Repairs and Maintenance ................................. 13
14. Utilities and Services .................................. 14
15. Governmental Regulations ................................ 17
16. Directory: Signs ........................................ 17
17. Alterations and Additions ............................... 17
18. Landlord's Right of Entry ............................... 18
19. Quiet Enjoyment ......................................... 18
20. Assignment and Subletting ............................... 19
21. Subordination ........................................... 20
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22. Tenant's Certificate .................................... 21
23. Surrender ............................................... 21
24. Defaults - Remedies ..................................... 21
25. Bankruptcy or Insolvency; Assumption; Adequate Protection 24
26. Interpretation .......................................... 27
27. Definition of Landlord; Landlord's Liability ............ 28
28. Notices ................................................. 28
29. Brokerage ............................................... 28
30. Intentionally Omitted ................................... 28
31. Guarantee ............................................... 28
32. Hazardous Substances .................................... 28
33. Environmental ........................................... 30
34. Parking ................................................. 30
35. Right of First Offering ................................. 30
36. Option to Extend Term ................................... 31
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ATTACHMENTS
Exhibit "A" - Floor Plans
Exhibit "B" - Description of Property
Exhibit "C" - Tenant Improvement Work Agreement
Exhibit "D" - First Amendment to Lease
Exhibit "E" - Cleaning and Janitorial Services
Exhibit "F" - Rules and Regulations
Exhibit "G" - Tenant Estoppel Certificate
Schedule One-A - Building Standards for Tenant
Improvement Work
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AGREEMENT OF LEASE
OFFICE BUILDING
THIS AGREEMENT OF LEASE, made as of the 1st day of July, 1996, by and between
THE TRAVELERS INSURANCE COMPANY, a Connecticut corporation (hereinafter called,
"Landlord"), and ACADEMIC SYSTEMS CORPORATION, a California corporation
(hereinafter called, "Tenant").
WITNESSETH:
1. Basic Terms.
(a) Address of Landlord:
THE TRAVELERS INSURANCE COMPANY
0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx
or such other address as may from time to time be designated by Landlord in
writing.
(b) Address of Tenant:
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
or such other address as may from time to time be designated by Tenant in
writing.
(c) Premises: Suite Nos. 1111, 1120 and 1200, consisting of a total of
approximately 14,164 rentable square feet of area in the Building as
shown on Exhibit "A" attached hereto.
(d) Building: The Building in which the Premises are located, the common
address of which is 000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000.
The legal description of the parcel of land on which the Building is
situated is attached hereto as Exhibit "B."
(e) Property: The Building, the parcel of land upon which the Building
is situated and any other improvements thereon.
(f) Guarantor(s): None.
(g) Lease Term: The term of this Lease shall be for a period of 5 years,
commencing on July 1, 1996 (the "Commencement Date"), and ending on June
30,
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2001 (the "Expiration Date"), unless this Lease shall be sooner
terminated as set forth herein.
(h) Rent: All sums, moneys, payments, costs and expenses required to be
paid by Tenant to Landlord pursuant to this Lease.
(i) Minimum Annual Rent:
July 1, 1996 - June 30, 1997 = $331,437.60*
July 1, 1997 - June 30, 1998 = $348,434.40**
July 1, 1998 - June 30, 1999 = $356,932.80***
July 1, 1999 - June 30, 2000 = $365,431.20****
July 1, 2000 - June 30, 2001 = $373,929.60*****
(j) Monthly Rent Installment:
July 1, 1996 - June 30, 1997 = $27,619.80*
July 1, 1997 - June 30, 1998 = $29,036.20**
July 1, 1998 - June 30, 1999 = $29,744.40***
July 1, 1999 - June 30, 2000 = $30,452.60****
July 1, 2000 - June 30, 2001 = $31,160.80*****
(k) Base Annual Operating Costs or Base Year: 1996
(l) Tenant's Share of Annual Operating Costs: 8.00%
(m) Security Deposit: $25,000 (of which $15,000 shall be credited from
the security deposit paid to Landlord by Tenant pursuant to its previous
lease of the Premises).
(n) Permitted Uses: General and administrative office, software and
multimedia development, and customer support.
(o) Broker: M.H. Realty Advisors.
(p) Tenant Improvement Plans Due: August 1, 1996.
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* Based upon $1.95 per rentable square foot per month
** Based upon $2.05 per rentable square foot per month
*** Based upon $2.10 per rentable square foot per month
**** Based upon $2.15 per rentable square foot per month
***** Based upon $2.20 per rentable square foot per month
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2. Effect of Reference to Basic Terms. Each reference in this Lease to any of
the Basic Terms contained in Paragraph 1 shall be construed to incorporate into
such reference all of the definitions set forth in Paragraph 1.
3. Lease of Premises. Landlord, in consideration of the Rent to be paid and the
covenants and agreements to be performed by Tenant, does hereby lease unto
Tenant the Premises, as designated in Item (c) of Basic Terms, constructed in
accordance with the lease plans and specifications showing interior improvements
to be constructed by Landlord as set forth on Exhibit "C" attached hereto,
together with the non-exclusive right and easement to use the parking areas and
other common facilities in or on the Building and the Property (including
without limitation the driveways, sidewalks, loading and parking areas, lobbies,
and hallways) which may from time to time be furnished by Landlord in common
with Landlord and the tenants and occupants (their agents, employees, customers
and invitees) of the Building. Tenant agrees that Tenant's consent shall not be
required for any additions, reductions or modifications of such common area
facilities including the construction of free-standing buildings on any portions
of the common areas. Tenant acknowledges and agrees that Landlord shall have the
right to make reasonable rules and regulations governing the location and use of
all parking areas and common facilities, and Tenant shall be governed thereby.
4. Completion by Landlord. The Premises shall be completed in accordance with
the plans and specifications attached hereto or as described in the Tenant
Improvement Work Agreement attached hereto as Exhibit "C" (hereinafter called
the "Tenant Improvement Work Agreement"). If the Plans (as defined in the Tenant
Improvement Work Agreement) have not been attached upon execution hereof, Tenant
shall submit same no later than the date specified in Item (p) of Basic Terms.
The Tenant Improvement Work Agreement attached hereto as Exhibit "C" contains a
schedule of Building standard finishes and tenant allowances. Tenant will be
responsible for all costs resulting from any additional work not provided for on
Exhibit "C", including but not limited to architectural and engineering charges,
which costs shall be paid by Tenant on or before occupancy of the Premises, or
as otherwise provided on Exhibit "C".
5. Term. The Lease Term shall commence on the Commencement Date, as designated
in Item (g) of Basic Terms. Unless sooner terminated, the Lease Term shall end
without the necessity for notice from either party to the other at 12:01 a.m.
local time on the Expiration Date designated in Item (g) of Basic Terms. Tenant
shall complete and furnish to Landlord, on or before occupancy of the Premises,
the First Amendment to Lease attached hereto as Exhibit "D", which shall
acknowledge the actual Commencement Date and Expiration Date of the Lease.
6. Use of Premises. Tenant shall occupy the Premises throughout the Lease Term
and shall use the same for and only for the non-residential purpose or purposes
set forth in Item (n) of Basic Terms and for no other purposes whatsoever
without the prior written consent of Landlord. Tenant shall not use or occupy
the Premises for any unlawful purpose or in any manner that will constitute
waste, nuisance or unreasonable annoyance to Landlord or other tenants of the
Building. Tenant shall comply with all present and future laws, ordinances
(including, without limitation, all applicable zoning ordinances, environmental
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laws, rules, regulations, and ordinances, land use requirements and the
Americans with Disabilities Act of 1990, as subsequently amended ("ADA")),
regulations, and orders of the United States of America, the State of
California, the County of Santa Xxxxx, the City of Mountain View, and any other
public or quasi-public authority having jurisdiction over the Premises,
concerning the use, occupancy and condition of the Premises and all machinery,
equipment and furnishings therein.
7. Rent. Tenant shall pay the following amount to Landlord at such place as
Landlord designates.
(a) Minimum Annual Rent. Tenant shall pay the Minimum Annual Rent
designated in Item (i) of Basic Terms in equal monthly installments, as
designated in Item (j) of Basic Terms, in advance, on the first day of
each calendar month during the Lease Term; provided, however, that the
Monthly Rent Installment for the first full month shall be paid upon the
signing of this Lease. In addition, Tenant shall pay Landlord without
setoff the Additional Rent as hereinafter set forth. Unless otherwise
specifically provided, all sums shall be paid to Landlord at the address
designated in Item (a) of Basic Terms or at such other address as
Landlord shall designate in writing to Tenant.
(b) Additional Rent. Tenant shall pay additional rent ("Additional
Rent") in an amount equal to Tenant's share of the increase in Annual
Operating Costs (defined below) over the Base Annual Operating Costs
designated in Item (k) of Basic Terms (if the Basic Terms set forth a
Base Year rather than Base Annual Operating Costs, the Base Annual
Operating Costs shall equal the amount of Annual Operating Costs for the
Base Year).
As used herein, the term "Annual Operating Costs" shall mean the costs
to Landlord of operating and maintaining the Property during each
calendar year of the Lease Term. Such costs shall include by way of
example rather than limitation: all real estate taxes and assessments,
general or special, ordinary or extraordinary, imposed upon the Property
(including all improvements thereto), all insurance premiums, fees,
impositions, costs for repairs, replacements, maintenance, service
contracts, management fees, governmental permits, overhead expenses,
costs of furnishing water, sewer, gas, fuel, electricity and other
utility services, janitorial service, trash removal, and the costs of
any other items attributable to operating or maintaining any or all of
the Property excluding any costs which under generally accepted
accounting principles are capital expenditures; provided, however, that
Annual Operating Costs shall also include the annual amortization (over
the anticipated useful life) of the cost of a capital improvement, plus
any interest or financing charges thereon, falling within any of the
following categories:
(i) a labor-saving or energy-saving device or improvement that
eliminates any other component of Annual Operating Costs or
which reduces any such Annual Operating Costs from the costs
that would have been incurred had such device or improvement not
been installed;
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(ii) an installation or improvement required by reason of any
law, ordinance or regulation, including, without limitation,
ADA; or
(iii) an installation or improvement that directly enhances
safety of tenants in the Building generally.
If Landlord shall receive an abatement of any real estate taxes or assessments
imposed upon the Property, Landlord shall credit to Annual Operating Costs an
amount equal to Tenant's share of the proceeds of such abatement, after
deducting Landlord's cost in obtaining the same. If, due to a future change in
the method of taxation, any other tax, however designated, is imposed in
substitution for or in addition to real estate taxes, then such other tax shall
be included within Annual Operating Costs. The cost of all goods, services,
labor and materials supplied or furnished by Landlord at the request of Tenant
solely for the benefit of Tenant and/or the Premises shall not be included
within Annual Operating Costs and shall be paid by Tenant promptly upon being
billed therefor.
Prior to each calendar year, Landlord shall estimate the amount of Additional
Rent due for such year, and Tenant shall pay Landlord one-twelfth (1/12) of such
estimate on the first day of each month during such year. Such estimate may be
revised by Landlord whenever it obtains information relevant to making such
estimate more accurate. After the end of each calendar year, Landlord shall
deliver to Tenant a report setting forth the actual Annual Operating Costs for
such calendar year and a statement of the amount of Additional Rent that Tenant
has paid and is payable for such year. Within thirty (30) days after receipt of
such report, Tenant shall pay to Landlord the amount of Additional Rent due for
such calendar year minus any payments of Additional Rent made by Tenant for such
year. If Tenant's estimated payments of Additional Rent exceed the amount due
Landlord for such calendar year, Landlord shall apply such excess as a credit
against Tenant's other obligations under this Lease or promptly refund such
excess to Tenant if the Lease Term has already expired, provided Tenant is not
then in default hereunder, in either case without interest to Tenant.
(c) Payment of Rent. The following provisions shall govern the payment of Rent:
(i) all Rent shall be paid to Landlord without offset or deduction and
the covenant to pay Rent shall be independent of every other covenant in
this Lease;
(ii) if during all or any portion of any year the Property is not fully
rented and occupied, Landlord may elect to make an appropriate
adjustment of Annual Operating Costs for such year to determine the
Annual Operating Costs that would have been paid or incurred by Landlord
had the Property been fully rented and occupied for the entire year and
the amount so determined shall be deemed to have been the Annual
Operating Costs for such year;
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(iii) any sum due from Tenant to Landlord that is not paid when due
shall bear interest from the date due until the date paid at the annual
rate of twelve percent (12%) per annum, but in no event higher than the
maximum rate permitted by law (the "Default Rate"); and in addition,
Tenant shall pay Landlord a late charge for any Rent payment that is
paid more than five (5) days after its due date equal to five percent
(5%) of such payment;
(iv) if changes are made to this Lease, changing the number of square
feet contained in the Premises or the Building, Landlord shall make an
appropriate adjustment to Tenant's Share of the Annual Operating Costs;
(v) in the event of the termination of this Lease prior to the
determination of any Additional Rent, Tenant's agreement to pay any such
sums and Landlord's obligation to refund any such sums (provided Tenant
is not in default hereunder) shall survive the termination of this
Lease;
(vi) no adjustment to the Rent by virtue of the operation of any Rent
adjustment provisions in this Lease shall result in the payment by
Tenant in any year of less than the Minimum Annual Rent shown on the
Basic Terms;
(vii) Landlord may at any time change the fiscal year pertaining to the
Property;
(viii) each amount owed to Landlord under this Lease for which the date
of payment is not expressly fixed shall be due on the same date as the
Rent is due hereunder; and
(ix) if Landlord fails to give Tenant an estimate of Additional Rent
prior to the beginning of any calendar year, Tenant shall continue to
pay Additional Rent at the rate for the previous calendar year until
Landlord delivers such estimate.
8. Security Deposit. At the time of signing this Lease, Tenant shall deposit
with Landlord the sum set forth in Item (m) of Basic Terms, to be retained by
Landlord as cash security for the faithful performance and observance by Tenant
of the covenants, agreements and conditions of this Lease. Notwithstanding
anything to the contrary contained in any law or statute now existing or
hereafter passed:
(i) Tenant shall not be entitled to any interest whatever on the cash
security;
(ii) Landlord shall not be obligated to hold the cash security in trust
or in a separate account; and
(iii) Landlord shall have the right to commingle the cash security with
its other funds.
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Landlord may use, apply or retain the whole or any part of the cash security to
the extent required for the payment of any Minimum Annual Rent, any Additional
Rent or any other sums payable hereunder as to which Tenant is in default or to
the extent required for the reimbursement to Landlord of any sum which Landlord
may expend or may be required to expend by reason of Tenant's default with
respect to any of the covenants, agreements or conditions of this Lease. If
Tenant shall fully and faithfully comply with all of the covenants, agreements
and conditions of this Lease, the cash security shall be returned to Tenant
after the date fixed as the expiration of the Lease Term and surrender of the
Premises to Landlord. If the Premises are sold to a bona fide purchaser,
Landlord shall have the right to transfer the aforesaid cash security to such
purchaser, by which transfer Landlord shall be released from all liability for
the return thereof, and Tenant shall look solely to the new landlord for the
return thereof.
9. Insurance and Indemnification.
(a) Insurance by Landlord. Landlord shall at all times during the Lease
Term carry a policy of insurance or shall be self-insured, covering the
Building, including the Premises, against loss or damage by fire or
other casualty (namely, the perils against which insurance is afforded
by a standard fire insurance policy and extended coverage endorsement
including, without limitation, rental interruption coverage for all
leased space in the Building); provided, however, that Landlord shall
not be responsible for, and shall not be obligated to insure against,
any loss of or damage to any personal property of Tenant, or which
Tenant may have in the Building or the Premises or any trade fixtures
installed by or paid for by Tenant on the Premises or any additional
improvements which Tenant may construct on the Premises, and Landlord
shall not be liable for any loss or damage to such property, regardless
of cause, including the negligence or wilful misconduct of Landlord and
its employees, agents, contractors, customers and invitees. If the
tenant finish improvements installed by Landlord for Tenant which are in
excess of those provided for in Exhibit "C" or any alterations or
improvements made by Tenant pursuant to Paragraph 17 hereof result in an
increase of the premiums charged during the Lease Term on the casualty
insurance carried by Landlord on the Building, then the cost of such
increase in insurance premiums shall be borne by Tenant, who shall
reimburse Landlord for the same after being separately billed therefor.
The annual cost of all such insurance maintained by Landlord shall be
considered as a part of the Annual Operating Costs of the Property.
(b) Insurance by Tenant. Tenant shall, at all times during the Lease
Term, at Tenant's cost, obtain and keep in effect the following
insurance insuring Tenant, Landlord and all mortgagees and any other
person or entity designated by Landlord as having an interest in the
Property (as their interests may appear):
(i) Insurance upon all property situated in the Premises owned
by Tenant or for which Tenant is legally liable and on fixtures
and improvements installed in the Premises by or on behalf of
Tenant. Such policy shall be for an amount of not less than 100%
of the full replacement cost with coverage against at least fire
with standard extended coverage, vandalism, malicious
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mischief, sprinkler leakage and water damage. If there is a
dispute as to the replacement cost amount, the decision of
Landlord shall be conclusive;
(ii) Business interruption insurance in an amount sufficient to
reimburse Tenant for direct or indirect loss of earnings
attributable to prevention of access to the Building or Premises
as a result of such perils;
(iii) Commercial general liability insurance including legal
liability and contractual liability insurance coverage with
respect to the Building and the Premises. The coverage is to
include activities and operations conducted by Tenant and any
other person in the Premises and Tenant any other person
performing work on behalf of Tenant and those for whom Tenant is
by law responsible in any other part of the Building. Such
insurance shall be written on a comprehensive basis with
inclusive limits of not less than $2,000,000 for each occurrence
for bodily injury and property damage or such higher limits as
Landlord, acting reasonably, may require from time to time. The
limit of said insurance shall not, however, limit the liability
of Tenant hereunder. Landlord shall be named on all liability
policies maintained by Tenant;
(iv) Worker's compensation insurance for all Tenant's employees
working in the Premises in an amount sufficient to comply with
applicable laws or regulations; and
(v) Any other form of insurance as Tenant, Landlord or its
mortgagee, may reasonably require from time to time. Such
insurance shall be in form, amount and for the risks which a
prudent Tenant would insure.
All policies of insurance maintained by Tenant shall be in a form
acceptable to Landlord; issued by an insurer acceptable to Landlord and
licensed to do business in the state in which the Property is located;
and require at least thirty (30) days written notice to Landlord of
termination or material alteration and waive, to the extent available,
any right of subrogation against Landlord. All policies shall provide
that the interests of Landlord, its mortgagee or those named insured
designated by Landlord shall not be invalidated because of any breach or
violation of any warranties, representations, declarations or conditions
contained in the policies. All policies must contain a severability of
interest clause, a cross-liability clause and shall be primary and shall
not provide for contribution of any other insurance available to
Landlord, its mortgagee, or those named insured designated by Landlord.
All policies required to be obtained by Tenant shall provide that the
interests of Landlord and any other additional insureds or loss payees
designated by Landlord shall not be invalidated due to any breach or
violation of any warranties, representations or declarations contained
in such policies or the applications therefor. If requested by Landlord,
Tenant shall, upon the Commencement Date designated in Item (g) of Basic
Terms, and thereafter within fifteen (15) days prior to the expiration
date of each such policy, promptly deliver to Landlord certified copies
or other written evidence of such policies and written evidence
satisfactory to Landlord that all premiums have been paid and all
polices are in effect. If Tenant fails to secure or maintain any
insurance
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coverage required by Landlord, or should insurance secured not be
approved by Landlord and such failure or approval not be corrected
within forty-eight (48) hours after written notice from Landlord,
Landlord may, without obligation, purchase such required insurance
coverage at Tenant's expense. Tenant shall promptly reimburse Landlord
for any monies so expended as Additional Rent.
(c) Tenant's Contractor's Insurance. Tenant shall require any contractor
of Tenant permitted to perform work in, on or about the Premises to
obtain and maintain the following insurance coverage at no expense to
Landlord:
(i) Commercial general liability insurance, including a broad
form general liability endorsement, in the amount of $1,000,000,
naming Landlord and Tenant as insured;
(ii) Worker's compensation insurance for all contractor's
employees working in the Premises in an amount sufficient to
comply with applicable laws or regulations;
(iii) Employers liability insurance in an amount not less than
$100,000; and
(iv) Any other insurance as Tenant, Landlord or its mortgagee
may reasonably require from time to time.
(d) Indemnification. Tenant, at Tenant's sole cost and expense, shall
indemnify and hold harmless Landlord from all loss, claim, demand,
damage, liability or expense, including attorneys' fees, resulting from
any injury to or death of any person or any loss of or damage to any
property caused by or resulting from any act, omission or negligence of
Tenant or any officer, employee, agent, contractor, licensee, guest,
invitee or visitor of Tenant in or about the Premises or the Building,
but the foregoing provision shall not be construed to make Tenant
responsible for loss, damage, liability or expense resulting from
injuries to third parties caused by any act, omission or negligence of
Landlord or of any officer, employee, agent, contractor, invitee or
visitor of Landlord. Landlord shall not be liable for any loss or damage
to person, property or Tenant's business sustained by Tenant, or other
persons, which may be caused by the Building or the Premises, or any
appurtenances thereto, being out of repair or by the bursting or leakage
of any water, gas, sewer or steam pipe, or by theft or by any act of
neglect of any tenant or occupant of the Building, or any other person.
(e) Waiver of Subrogation. Landlord and Tenant each agree that neither
Landlord nor Tenant (and their successors and assignees) will have any
claim against the other for any loss, damage or injury which is covered
by insurance carried by either party and for which recovery from such
insurer is made, notwithstanding the negligence of either party in
causing the loss. This release shall be valid only if the insurance
policy in question expressly permits waiver of subrogation or if the
insurer agrees in writing that such waiver of subrogation will not
affect coverage under said policy.
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Each party agrees to use its best efforts to obtain such an agreement
from its insurer if the policy does not expressly permit a waiver of
subrogation.
(f) Increase of Premiums. Tenant will not do anything or fail to do
anything which will cause the cost of Landlord's insurance to increase
or which will prevent Landlord from procuring policies (including but
not limited to public liability) from companies and in a form
satisfactory to Landlord. If any breach of this Paragraph 9(f) by Tenant
shall cause the rate of fire or other insurance to be increased, Tenant
shall pay the amount of such increase as Additional Rent promptly upon
being billed therefor.
(g) Tenant's Additional Insurance. Landlord makes no representation that
the limits of liability specified to be carried by Tenant under the
terms of this Lease are adequate to protect Tenant against Tenant's
undertaking under this Paragraph 9, and in the event Tenant believes
that any such insurance coverage called for under this Lease is
insufficient, Tenant shall provide, at its own expense, such additional
insurance as Tenant deems adequate.
10. Damage by Fire or Other Casualty; Casualty Insurance.
(a) Obligation to Repair or Rebuild. If the Premises or Building shall
be damaged or destroyed by fire or other casualty, Tenant shall promptly
notify Landlord of any damage or destruction to the Premises, and
Landlord, subject to the mortgagee's consent and to the conditions set
forth in this Paragraph 10, shall repair, rebuild or replace such damage
and restore the Premises and/or the Building, subject to subparagraph
(f) below, to substantially the same condition in which they were
immediately prior to such damage or destruction; provided, however, that
Landlord shall only be obligated to restore such damage which is covered
by the fire and other extended coverage insurance policies.
(b) Commencement and Completion of Work. The work shall be commenced
promptly and completed with due diligence, taking into account the time
required by Landlord to effect a settlement with, and procure insurance
proceeds from, the insurer, and for delays beyond Landlord's reasonable
control.
(c) Application of Proceeds. The net amount of any insurance proceeds
(excluding proceeds received pursuant to the rental interruption
coverage obtained by Landlord in accordance with Paragraph 9(a) hereof),
recovered by reason of the damage or destruction of the Building in
excess of the cost of adjusting the insurance claim and collecting the
insurance proceeds (such excess amount being hereinafter called the "net
insurance proceeds") shall be applied towards the reasonable cost of
restoration. If, in Landlord's sole opinion, the net insurance proceeds
will not be adequate to complete such restoration, Landlord shall have
the right to terminate this Lease and all the unaccrued obligations of
the parties hereto by sending a written notice of such termination to
Tenant, the notice to specify a termination date no less than ten (10)
days after its transmission; provided, however, that if the damage
relates only to the Premises and occurs prior to the last two (2) years
of the Lease Term,
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Tenant, subject to subparagraph (f) below, may require Landlord to
withdraw the notice of termination by agreeing to pay the cost of
restoration in excess of the net insurance proceeds and by giving
Landlord adequate security for such payment prior to the termination
date specified in Landlord's notice of termination. If the net insurance
proceeds are more than adequate, the amount by which the net insurance
proceeds exceed the cost of restoration-will be retained by Landlord.
(d) Tenant's Fixtures and Improvements. Landlord's obligation or
election to restore the Premises under this Paragraph 10 shall not
include the repair, restoration or replacement of the fixtures,
improvements, alterations, furniture or any other property owned,
installed, made by, or in the possession of Tenant.
(e) Abatement of Rent. Tenant will receive an abatement of its Minimum
Annual Rent and Additional Rent to the extent and during the time the
Premises are rendered untenantable due to casualty, such Rent to xxxxx
in such proportion as the part of the Premises thus destroyed or
rendered untenantable bears to the total Premises while such repairs are
being made. If the Premises are so slightly damaged by such fire or
other casualty as not to be rendered untenantable, Landlord shall make
the repairs it deems necessary with reasonable promptness and the
payment of Rent shall not be affected thereby. Landlord shall be the
sole judge as to whether such destruction or damage has caused the
Building or the Premises to be untenantable or whether the same cannot
be rendered tenantable within the one hundred fifty (150) day period set
forth in subparagraph (f) below. Tenant shall, at its own cost and
expense, remove such of its furniture and furnishings and other
belongings from the Premises as Landlord shall require in order to
repair and restore the Premises.
(f) Landlord's Option Not to Restore. Notwithstanding the foregoing
provisions, if there is substantial destruction of the Building, or if,
in the sole judgment of Landlord, such damage cannot be repaired and the
Premises cannot be made tenantable within one hundred fifty (150) days
of such damage, Landlord shall have the option not to restore, and may
elect to terminate this Lease by sending notice as referred to in
subparagraph (c) above, without giving Tenant the right to cause the
notice of termination to be withdrawn. Landlord shall notify Tenant in
writing within forty-five (45) days after the date of such damage or
destruction of Landlord's estimate of the period of time required to
repair and restore the Premises to tenantable condition. If such period
of time exceeds one hundred and fifty (150) days, Tenant shall also have
the right to terminate this Lease by written notification to Landlord of
such termination within fifteen (15) days of delivery of Landlord's
notice to Tenant.
(g) Tenant Waiver. Unless this Lease is terminated pursuant to the
foregoing provisions, this Lease shall remain in full force and effect.
Tenant hereby expressly waives the provisions of Section 1932,
Subdivision 2, and Section 1933, Subdivision 4, of the California Civil
Code.
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11. Condemnation.
(a) Termination.
(i) If all of the Premises are covered by a condemnation; or
(ii) If any part of the Premises is covered by a condemnation
and the remainder thereof is insufficient for the reasonable
operation therein of Tenant's business; or
(iii) If any of the Property is covered by a condemnation and,
in Landlord's sole opinion, it would be impractical or the
condemnation proceeds are insufficient to restore the remainder
of the Property; then, in any such event, this Lease shall
terminate and all obligations hereunder shall cease as of the
date upon which possession is taken by the condemnor and the
Rent herein reserved shall be apportioned and paid in full by
Tenant to Landlord to that date and all Rent prepaid for periods
beyond that date shall forthwith be repaid by Landlord to
Tenant.
(b) Partial Condemnation. If there is a partial condemnation and this
Lease has not been terminated pursuant to subparagraph (a) hereof,
Landlord shall restore the Building and the improvements which are part
of the Building to a condition and size as nearly comparable as
reasonably possible to the condition and size thereof immediately prior
to the date upon which possession shall have been taken by the
condemnor. If the condemnation proceeds are more than adequate to cover
the cost of restoration and Landlord's expenses in collecting the
condemnation proceeds, any excess proceeds shall be retained by
Landlord. If there is a partial condemnation and this Lease has not been
terminated by the date upon which the condemnor shall have obtained
possession, the obligations of Landlord and Tenant under this Lease
shall be unaffected by such condemnation except that there shall be an
equitable abatement of the Minimum Annual Rent in direct proportion to
the amount of the Premises so taken.
(c) Award. In the event of a condemnation affecting Tenant, Tenant shall
have the right to make a separate claim against the condemnor for
removal and relocation costs and expenses and the taking of Tenant's
tangible property; provided and to the extent, however, that such claims
or payments do not reduce the sums otherwise payable by the condemnor to
Landlord. Except as aforesaid, Tenant hereby waives all claims against
Landlord and against the condemnor, and Tenant hereby assigns to
Landlord all claims against the condemnor including, without limitation,
all claims for leasehold damages and diminution in value of Tenant's
leasehold interest.
(d) Temporary Taking. If the condemnor should take only the right to
possession of the Premises for a fixed period of time or for the
duration of an emergency or other temporary condition, then,
notwithstanding anything hereinabove provided, this Lease shall continue
in full force and effect without any abatement of Rent, but the amounts
payable by the condemnor with respect to any period of time prior to the
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expiration or sooner termination of this Lease shall be paid by the
condemnor to Landlord and the condemnor shall be considered a subtenant
of Tenant. Landlord shall apply the amount received from the condemnor
applicable to the Rent due hereunder net of costs to Landlord for the
collection thereof, or as much thereof as may be necessary for the
purpose, toward the amount due from Tenant as Rent for that period; and
Tenant shall pay to Landlord any deficiency between the amount thus paid
by the condemnor and the amount of the Rent, or Landlord shall credit to
future Rent due from Tenant any excess of the amount of the award over
the amount of the Rent.
(e) Waiver. Each party waives the provisions of California Code of Civil
Procedure, Section 1265.130 allowing either party to petition the
Superior Court to terminate this Lease in the event of a partial taking.
12. Non-Abatement of Rent. Except as otherwise expressly provided as to damage
by fire or by any other casualty in subparagraph (e) of Paragraph 10 and,
conditionally, as to condemnation in subparagraphs (a) and (b) of Paragraph 11,
there shall be no abatement or reduction of the Minimum Annual Rent, Additional
Rent or other sums payable hereunder for any cause whatsoever, and this Lease
shall not terminate, and Tenant shall not be entitled to surrender or abandon
the Premises.
13. Repairs and Maintenance.
(a) Tenant's Obligations. Tenant, at its sole cost and expense and
throughout the Lease Term and any renewals or extensions thereof, shall
keep and maintain the Premises in a neat, safe and orderly condition and
shall make all necessary non-structural repairs thereto. Tenant shall
not use or permit the use of any portion of the common areas for other
than their intended use. Upon the expiration of the Lease Term, Tenant
shall yield and deliver up the Premises in like condition as when taken,
reasonable use and wear thereof and repairs required to be made by
Landlord excepted. Anything hereinabove to the contrary notwithstanding,
from and after the date Tenant has taken occupancy of the Premises, any
repairs, additions or alterations to the Premises which are required by
OSHA or ADA shall be promptly made by Tenant, at its sole expense, and
any such repairs, additions and/or alternations made by Tenant shall be
subject to the provisions of this Paragraph 13 and Paragraph 17 hereof.
(b) Landlord's Obligations. Landlord, subject to subparagraph (c) below,
throughout the Lease Term and any renewals or extensions thereof, shall
make all necessary structural repairs to the Building and any necessary
repairs to the mechanical, HVAC, electrical and plumbing systems in or
servicing the Premises, excluding repairs to any such systems or
components thereof which are not of the same type and nature as those
provided by Landlord as part of the Building standard improvements;
provided, however, that Landlord shall have no responsibility to make
any repairs unless and until Landlord receives written notice of the
need for such repair. Except as otherwise provided herein, the cost of
all such repairs shall be borne by Landlord and included as part of
Annual Operating Costs. Tenant shall at
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once report in writing to Landlord any defective condition known to
Tenant which Landlord is required to repair. Failure to so report shall
make Tenant responsible for damages resulting from such defective
condition. Landlord shall not be liable for any failure to make repairs
or to perform any maintenance unless such failure shall persist for an
unreasonable time after written notice of the need for such repairs or
maintenance is received by Landlord from Tenant. Landlord shall keep
repaired and maintain all common areas of the Property and any
sidewalks, parking areas, curbs and access ways adjoining the Property
in a clean and orderly condition.
(c) Interference with Use of Premises No Release from Obligations. In
the event that Landlord shall deem it necessary, or be required by any
governmental authority, to repair, alter, remove, reconstruct or improve
any part of the Premises or the Building (unless the same result from
Tenant's act, neglect, default or mode of operation, in which event
Tenant shall make all such repairs, alterations and improvements), then
the same shall be made by Landlord with reasonable dispatch, and should
the making of such repairs, alterations or improvements cause any
interference with Tenant's use of the Premises, such interference shall
not relieve Tenant from the performance of its obligations hereunder,
nor shall such interference be deemed an actual or constructive eviction
or partial eviction or result in an abatement of Rent. Notwithstanding
the foregoing, Tenant shall, at its own cost and expense, make all
repairs and provide all maintenance in connection with any alterations,
additions or improvements made by Tenant pursuant to Paragraph 17
hereof.
14. Utilities and Services.
(a) Utilities and Services Furnished by Landlord. Provided Tenant is not
in default hereunder, Landlord agrees to furnish or cause to be
furnished to the Premises, the utilities and services described below,
subject to the conditions and in accordance with the standards set forth
in this Paragraph 14:
(i) Landlord shall provide automatic elevator facilities Monday
through Friday from 8 a.m. to 6 p.m., and on Saturdays from 9
a.m. to 1 p.m. At least one elevator shall be available for use
at all other times;
(ii) Landlord shall furnish heat or air conditioning Monday
through Friday from 7 a.m. to 6 p.m. Tenant acknowledges that
there has been installed in the Premises a separate HVAC system
("Separate HVAC") which services the Premises exclusively, and
that another Separate HVAC may subsequently be installed.
Landlord shall provide Tenant with a periodic statement
designating Tenant's utility consumption with respect to such
separate HVAC system (as shown by the meters installed to
register such consumption at the rates then charged by the
furnishing public utility), and Tenant shall pay to Landlord the
amount designated on each such statement promptly upon demand
therefor as a direct expense of Tenant. Tenant, at Tenant's sole
cost and expense, shall carry out throughout the Term of the
Lease an ongoing program of regular and preventative maintenance
of such separate HVAC system in the Premises
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pursuant to an HVAC maintenance contract to be approved by
Landlord, such program to include the periodic replacement of
HVAC filters in accordance with manufacturers' specifications
and the monitoring of HVAC settings (i.e., relative humidity and
percentage of outside air) to ensure compliance with the
specifications of the equipment manufacturers and the design of
the HVAC system. Upon reasonable advance notice from Landlord,
Tenant shall make available to Landlord Tenant's records
evidencing such maintenance efforts by Tenant;
(iii) Landlord shall furnish to the Premises, subject to
interruptions beyond Landlord's control, such electricity as is
required for the use of the office lighting and electrical
outlets in use as of the Commencement Date;
(iv) Landlord shall furnish water for drinking, cleaning and
lavatory purposes only;
(v) Landlord shall provide cleaning and janitorial services to
the Premises, as described in Exhibit "E" attached hereto and
made a part hereof; and
(vi) Landlord shall provide the following security measures for
the Building:
- A uniformed lobby guard twelve (12) hours a day,
Monday through Friday and eight (8) hours a day on
Saturday and Sunday; and
- A card access system for entry into the lobby and
parking garage 24 hours a day, 365 days a year.
(b) Special and Additional Usage. Landlord may impose a reasonable
charge for any utilities and services, including without limitation, air
conditioning, electricity, and water, provided by Landlord by reason of:
(i) any use of the Premises at any time other than the hours set
forth above;
(ii) any use beyond what Landlord agrees herein to furnish; or
(iii) special electrical, cooling and ventilating needs created
by Tenant's telephone equipment, computers, electronic data
processing equipment and other similar equipment or uses.
Landlord, at its option, may require installation of additional
metering devices, at Tenant's expense, for the purpose of
metering Tenant's utility consumption.
(c) Cooperation; Payment of Charges; Approval of Special Equipment
Usage. Tenant agrees to cooperate fully at all times with Landlord and
to abide by all regulations and requirements which Landlord may
prescribe for the use of the above utilities and services. Tenant agrees
to pay any charge imposed by Landlord pursuant
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to subparagraph (b) above and any failure to pay any excess costs as
described above shall constitute a breach of the obligation to pay Rent
under this Lease and shall entitle Landlord to the rights herein granted
for such breach. Tenant's use of electricity shall at no time exceed the
capacity of the service to the Premises or the electrical risers or
wiring installation.
(d) Failure, Stoppage or Interruption of Service: No Release from
Obligations. 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 services when such failure is
caused by accident, breakage, repairs, riots, strikes, lockouts or other
labor disturbance or labor dispute of any character, governmental
regulation, moratorium or other governmental action, inability by
exercise of reasonable diligence to obtain electricity, water or fuel,
or by any other cause beyond Landlord's immediate control or for
stoppages or interruptions of any such services for the purpose of
making necessary repairs or improvements. Failure, stoppage or
interruption of any such service shall not be construed as an actual or
constructive eviction or as a partial eviction against Tenant, or
release Tenant from the prompt and punctual performance by Tenant of the
covenants contained herein. Notwithstanding anything hereinabove to the
contrary, Landlord reserves the right from time to time to make
reasonable and nondiscriminatory modifications to the above standards
for utilities and services.
(e) Limitation and Unavailability of Service. Anything hereinabove to
the contrary notwithstanding, Landlord and Tenant agree that Landlord's
obligation to furnish heat, electricity, air conditioning and/or water
to the Premises shall be subject to and limited by all laws, rules, and
regulations of any governmental authority affecting the supply,
distribution, availability, conservation or consumption of energy,
including, but not limited to, heat, electricity, gas, oil and/or water.
Landlord shall abide by all such governmental laws, rules and
regulations and, in so doing, Landlord shall not be in default in any
manner whatsoever under the terms of this Lease, and Landlord's
compliance therewith shall not affect in any manner whatsoever Tenant's
obligation to pay the full Rent set forth in this Lease.
(f) Lighting Fixtures and Lamps. Tenant shall purchase and use only such
electrical lighting fixtures and lamps as may be approved by Landlord in
writing.
(g) Load Bearing Capacity. 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 reserves the
right to prescribe in a reasonable manner the weight and position of all
safes and heavy installations which Tenant wishes to place in the
Premises so as to properly distribute the weight thereof. Any cost of
structural analysis shall be borne by Tenant.
(h) Unreasonable Noise or Vibration. Business machines and mechanical
equipment belonging to Tenant which cause unreasonable noise or
vibration that may be transmitted to the structure of the Building or to
any leased space to such a degree as to be objectionable to Landlord or
to any tenants in the Building shall be placed
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and maintained by Tenant, at Tenant's expense, on vibration eliminators
or other devices sufficient to eliminate such unreasonable noise or
vibration.
15. Governmental Regulations. Tenant shall not violate any laws, ordinances,
notices, orders, rules, regulations or requirements, including, without
limitation, those pertaining to environmental matters and ADA, of any federal,
state or municipal government or any department, commission, board or office
thereof, or of the National Board of Fire Underwriters or any other body
exercising similar functions, relating to the Premises or to the use or manner
of use of the Property, nor shall Tenant perform any acts or carry on any
practices which may injure the Property or the Premises or be a nuisance,
disturbance or menace to any other tenants of the Building. Upon breach of this
Xxxxxxxxx 00, Xxxxxxxx shall have the right to terminate this Lease forthwith
and to re-enter and repossess the Premises, but Landlord's right to damages
shall survive.
16. Directory; Signs. Landlord will place Tenant's name and suite number on the
Building standard directory. Except for signs which are located wholly within
the interior of the Premises and which are not visible from the exterior of the
Premises, and except for signs on office doors with size, design, lettering and
text approved by Landlord, no signs shall be placed, erected, maintained or
painted by Tenant at any place upon the Premises or the Property.
17. Alterations and Additions. Except for interior, non-structural, cosmetic
alterations and improvements to the Premises or any part thereof, not visible
from the exterior of the Premises and requiring an expenditure by Tenant in any
single instance of an amount not to exceed One Thousand Dollars ($1,000), Tenant
shall not make any alterations, additions, changes or repairs (hereinafter
referred to as "Alterations and Additions") to the Premises without obtaining in
each instance Landlord's prior written consent. All Alterations and Additions
shall be performed by Landlord or Landlord's contractors, or shall be performed
by Landlord or Landlord's contractors, shall be performed under Landlord's
regulation. In the event Alterations and Additions are not performed by Landlord
or Landlord's contractors, Tenant shall pay to Landlord a reasonable fee, as
determined by Landlord, for its regulation of such Alterations and Additions.
All Alterations and Additions shall remain upon and be surrendered with the
Premises unless, prior to or upon the expiration or termination of this Lease,
Landlord shall give written notice to Tenant to remove the same, in which event
Tenant will remove such Alterations and Additions within ten (10) days after the
expiration or termination of this Lease, and repair and restore any damage to
the Premises caused by the installation or removal thereof. If Tenant does not
remove said Alterations and Additions within said ten (10) day period, Landlord
may remove the same and Tenant shall pay the cost of such removal to Landlord
upon demand. Tenant hereby agrees to protect, defend, indemnify and hold
harmless Landlord, its agents and employees, with regard to the Premises and the
Property, from any and all liabilities of every kind and description which may
arise out of or be connected in any way with said Alterations or Additions. Any
mechanic's lien filed against the Premises or the Property or any notice which
is received by either Landlord or Tenant for work claimed to have been furnished
to Tenant, and performed other than by Landlord or Landlord's contractors, shall
be released and discharged within ten (10) days after such filing or receipt,
whichever is applicable, at Tenant's expense. Alterations and Additions
permitted to be performed other than by Landlord or Landlord's
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contractors shall be performed in a manner so as not to annoy or disturb other
tenants or occupants of the Building, and shall be performed only during such
hours and under such conditions as shall be designated by Landlord. Upon
completion of Alterations and Additions performed other than by Landlord or
Landlord's contractors, Tenant shall furnish Landlord with contractors'
affidavits and full and final waivers of lien and receipted bills covering all
labor and materials expended and used. All Alterations and Additions shall
comply with all insurance requirements and with all applicable laws, statutes,
ordinances and regulations. All Alterations and Additions shall be constructed
in a good and workmanlike manner and only first-class material shall be used.
The performance of any Alterations and Additions to the Premises by either
Landlord or Landlord's contractors on behalf of Tenant shall not be deemed or
construed by the parties hereto, or by any third party, as creating the
relationship of principal and agent or of partnership, or of joint venture, by
and between the parties hereto, it being understood and agreed that no provision
contained in this Paragraph 17 or elsewhere in this Lease nor any acts of the
parties hereto shall be deemed to create any relationship other than the
relationship of Landlord and Tenant.
18. Landlord's Right of Entry.
(a) Right of Entry; No Release from Obligations. Tenant shall permit
Landlord and the authorized representatives of Landlord and of any
mortgagee or any prospective mortgagee to enter the Premises at all
reasonable times upon reasonable notice (except in case of emergency),
for the purpose of:
(i) inspecting the Premises; or
(ii) making any necessary repairs thereto or to the Property and
performing any work therein.
During the progress of any work on the Premises or the Property,
Landlord will attempt not to inconvenience Tenant, but shall not be
liable for inconvenience, annoyance, disturbance, loss of business or
other damage to Tenant by reason of making any repair or by bringing or
storing materials, supplies, tools and equipment in the Premises during
the performance of any work, and the obligations of Tenant under this
Lease shall not be thereby affected in any manner whatsoever.
(b) Sales; Mortgagee; Prospective Tenants. Landlord shall have the right
at all reasonable times to enter and to exhibit the Premises for the
purpose of sale or mortgage, and, during the last nine (9) months of the
Lease Term, to enter and to exhibit the Premises to any prospective
tenant.
19. Quiet Enjoyment. Tenant, upon paying the Minimum Annual Rent, Additional
Rent and other charges herein provided for, and observing and keeping all
covenants, agreements and conditions of this Lease on its part to be kept, shall
quietly have and enjoy the Premises during the Lease Term without hindrance or
molestation by anyone claiming by or through Landlord, subject, however, to the
exceptions, reservations and conditions of this Lease. Landlord hereby reserves
the right to prescribe, at its sole discretion, reasonable rules and regulations
(herein called the "Rules and Regulations") having uniform applicability to all
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similarly situated tenants of the Building and governing the use and enjoyment
of the Premises and the remainder of the Property; provided that the Rules and
Regulations shall not materially interfere with Tenant's use and enjoyment of
the Premises in accordance with the provisions of this Lease for the permitted
uses. Tenant shall adhere to the Rules and Regulations and shall cause its
agents, employees, invitees, visitors and guests to do so. A copy of the Rules
and Regulations in effect on the date hereof is attached hereto as Exhibit "F".
20. Assignment and Subletting. Tenant for itself, its successors and assigns,
expressly covenants that it shall not by operation of law or otherwise assign,
sublet, hypothecate, encumber or mortgage this Lease, or any part thereof, or
permit the Premises to be used by others without the prior written consent of
Landlord in each instance, which consent shall not be unreasonably withheld. Any
attempt by Tenant to assign, sublet, encumber or mortgage this Lease shall be
null and void. The consent by Landlord to any assignment, mortgage,
hypothecation, encumbrance, subletting or use of the Premises by others, shall
not constitute a waiver of Landlord's right to withhold its consent to any other
or further assignment, subletting, mortgage, encumbrance or use of the Premises
by others. Without the prior written consent of Landlord, this Lease and the
interest therein of any assignee of Tenant herein, shall not pass by operation
of law or otherwise, and shall not be subject to garnishment or sale under
execution in any suit or proceeding which may be brought against or by Tenant or
any assignee of Tenant. The absolute and unconditional prohibitions contained in
this Paragraph 20 and Tenant's agreement thereto are material inducements to
Landlord to enter into this Lease with Tenant and any breach thereof shall
constitute a material default hereunder permitting Landlord to exercise all
remedies provided for herein or by law or in equity on a default of Tenant. If
Tenant requests Landlord's consent to an assignment of this Lease or subletting
of all or any part of the Premises, Tenant shall submit to Landlord: (1) the
name of the proposed assignee or subtenant; (2) the terms of the proposed
assignment or subletting together with a conformed or photostatic copy of the
proposed assignment or sublease; (3) the nature of business of the proposed
assignee or subtenant's business and its proposed use of the Premises; (4) such
information as to its financial responsibility and general reputation as
Landlord may require; and (5) a summary of plans and specifications for revising
the floor layout of the Premises.
Upon the receipt of such information from Tenant, Landlord shall have the
option, to be exercised in writing within thirty (30) days after such receipt,
to cancel and terminate this Lease if the request is to assign this Lease or to
sublet all of the Premises or, if the request is to sublet a portion of the
Premises only, to cancel and terminate this Lease with respect to such portion,
in each case as of the date set forth in Landlord's notice of exercise of such
option.
If Landlord shall cancel this Lease, Tenant shall surrender possession of the
Premises, or the portion of the Premises which is the subject of the request, as
the case may be, on the date set forth in such notice in accordance with the
provisions of this Lease relating to surrender of the Premises. If this Lease
shall be canceled as to a portion of the Premises only, the Minimum Annual Rent
and all Additional Rent payable by Tenant hereunder shall be abated
proportionately according to the ratio that the number of square feet in the
portion of space surrendered (as computed by Landlord) bears to the rentable
area of the Premises.
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If Landlord shall fail to exercise its option to cancel and terminate this Lease
with respect to all or part of the Premises as above provided, Landlord shall
not thereby be deemed to have consented to the proposed assignment or
subletting.
If Landlord shall consent to a sublease or an assignment pursuant to the request
from Tenant, Tenant shall cause to be executed by its assignee or subtenant an
agreement to perform faithfully and to assume and be bound by all of the terms,
covenants, conditions, provisions and agreements of this Lease for the period
covered by the assignment or sublease and to the extent of the space sublet or
assigned. An executed counterpart of each sublease or assignment and assumption
of performance by the sublessee or assignee, in form and substance approved by
Landlord, shall be delivered to Landlord within five (5) days prior to the
commencement of occupancy set forth in such assignment or sublease; no such
assignment or sublease shall be binding on Landlord until Landlord has received
such counterpart as required herein.
If Landlord shall give its consent to any assignment of this Lease or to any
sublease, Tenant shall in consideration therefor pay to Landlord as Additional
Rent the following amounts less the actual expenses incurred by Tenant in
connection with such assignment or subletting including legal fees, brokerage
commissions and costs of making alterations, as the case may be:
(i) In the case of an assignment, an amount equal to all sums
and other considerations paid to Tenant by the assignee for or
by reason of such assignment; and
(ii) In the case of a sublease, any rents, additional charge or
other consideration payable under the sublease to Tenant by the
subtenant which is in excess of the Minimum Annual Rent and all
Additional Rent accruing during the term of the sublease in
respect of the subleased space (at the rate per square foot
payable by Tenant hereunder) pursuant to the terms hereof.
The sums payable as set forth above shall be paid to Landlord as
Additional Rent as and when paid by the assignee or subtenant to
Tenant.
In no event shall any assignment or subletting to which Landlord
may consent, release or relieve Tenant from its obligations to
fully observe or perform all of the terms, covenants and
conditions of this Lease on its part to be observed or
performed.
21. Subordination. Landlord reserves the right to subject and subordinate this
Lease at all times to the lien of any first mortgage now or hereafter placed
upon Landlord's interest in the Premises, the Building and/or the Property, and
to any second mortgage with the consent of the first mortgagee, and Tenant shall
execute and deliver any and all documents necessary to evidence such
subordination. Tenant hereby irrevocably appoints Landlord the attorney-in-fact
of Tenant to execute and deliver any such instrument or instruments for and in
the name of Tenant as may be necessary to effect such subordination; provided,
however, no default by Landlord under any such mortgage(s) shall affect Tenant's
rights hereunder so
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long as Tenant is not in default under this Lease. Tenant shall, in the event
any proceedings are brought for the foreclosure of any such mortgage(s), attorn
to the purchaser upon any such foreclosure or sale and recognize such purchaser
as Landlord under this Lease.
22. Tenant's Certificate. Tenant, at any time and from time to time and within
ten (10) days after Landlord's written request, shall execute, acknowledge and
deliver to Landlord a written instrument in recordable form certifying that this
Lease is unmodified and in full force and effect (or, if there have been
modifications, that it is in full force and effect as modified and stating the
modifications); stating that the improvements required by Paragraph 4 hereof
have been completed; certifying that Tenant has accepted possession of the
Premises; stating the date on which the Lease Term commenced and the dates to
which Minimum Annual Rent, Additional Rent and other charges have been paid in
advance, if any; stating that to the best knowledge of the signer of such
instrument Landlord is not in default of this Lease (or if there are defaults
alleged by Tenant, setting forth in detail the nature of such alleged defaults);
stating any other fact or certifying any other condition reasonably requested by
Landlord or required by any mortgagee or prospective mortgagee or purchaser of
the Property or any interest therein; and stating that it is understood that
such instrument may be relied upon by any mortgagee or prospective mortgagee or
purchaser of the Property or any interest therein or by any assignee of
Landlord's interest in this Lease or by any assignee of any mortgagee. The
foregoing instrument shall be addressed to Landlord and to any mortgagee,
prospective mortgagee, purchaser or other party specified by Landlord. Said
instrument shall be in the form of Exhibit "G" attached hereto.
23. Surrender.
(a) Condition of Premises. Subject to the terms of Paragraph 13, at the
expiration or earlier termination of the Lease Term, Tenant shall
promptly yield up, clean and neat, and in the same condition, order and
repair in which they are required to be kept throughout the Lease Term,
the Premises and all improvements, alterations and additions thereto,
and all fixtures and equipment servicing the Building, ordinary wear and
tear excepted.
(b) Holding Over. If Tenant, or any person claiming through Tenant,
shall continue to occupy the Premises after the expiration or earlier
termination of the Lease Term or any renewal thereof, such occupancy
shall be deemed to be under a month-to-month tenancy under the same
terms and conditions set forth in this Lease; except, however, that the
Monthly Rent Installment for each month during such continued occupancy
shall be one hundred fifty percent (150%) multiplied by the amount set
forth in Item (j) of Basic Terms. Anything to the contrary
notwithstanding, any holding over by Tenant without Landlord's prior
written consent shall constitute a default hereunder and shall be
subject to all the remedies set forth in Paragraph 24 hereof.
24. Defaults - Remedies.
(a) Default. The occurrence of any of the following shall constitute a
default (a "Default") by Tenant under this Lease:
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(i) Tenant fails to pay any Rent when due and such failure is
not cured within five (5) days after notice from Landlord;
(ii) Tenant fails to perform any other provision of this Lease
and such failure is not cured within thirty (30) days (or
immediately if the failure involves a hazardous condition) after
notice from Landlord;
(iii) the leasehold interest of Tenant is levied upon or
attached under process of law,
(iv) Tenant or any guarantor of this Lease dies or dissolves;
(v) Tenant abandons or vacates the Premises; or
(vi) any voluntary or involuntary proceedings are filed by or
against Tenant or any guarantor of this Lease under any
bankruptcy, insolvency or similar laws and, in the case of any
involuntary proceedings, are not dismissed within thirty (30)
days after filing.
(b) Termination. If a Default occurs, Landlord shall have the right at
any time to give a written termination notice to Tenant and, on the date
specified in such notice, Tenant's right to possession shall terminate
and this Lease shall terminate. Upon such termination, Landlord shall
have the right to recover from Tenant:
(i) The worth at the time of award of all unpaid Rent which had
been earned at the time of termination;
(ii) The worth at the time of award of the amount by which all
unpaid Rent which would have been earned after termination until
the time of award exceeds the amount of such rental loss that
Tenant proves could have been reasonably avoided;
(iii) The worth at the time of award of the amount by which all
unpaid Rent for the balance of the term of this Lease after the
time of award exceeds the amount of such rental loss that Tenant
proves could be reasonably avoided; and
(iv) All other amounts necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform
all of Tenant's obligations under this Lease or which in the
ordinary course of things would be likely to result therefrom.
The "worth at the time of award" of the amounts referred to in
clauses (i) and (ii) above shall be computed by allowing
interest at the maximum annual interest rate allowed by law for
business loans (not primarily for personal, family or household
purposes) not exempt from the usury law at the time of
termination or, if there is no such maximum annual interest
rate, at the rate of
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twelve percent (12%) per annum. The "worth at the time of award"
of the amount referred to in clause (iii) above shall be
computed by discounting such amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of award plus
one percent (1%). For the purpose of determining unpaid Rent
under clauses (i), (ii) and (iii) above, the Rent reserved in
this Lease shall be deemed to be the total Rent payable by
Tenant under this Lease.
(c) No Termination. Even though Tenant has breached this Lease, this
Lease shall continue in effect for so long as Landlord does not
terminate Tenant's right to possession, and Landlord shall have the
right to enforce all its rights and remedies under this Lease, including
the right to recover all Rent as it becomes due under this Lease. Acts
of maintenance or preservation or efforts to relet the Premises or the
appointment of a receiver upon initiative of Landlord to protect
Landlord's interest under this Lease shall not constitute a termination
of Tenant's right to possession unless written notice of termination is
given by Landlord to Tenant.
(d) Landlord's Right to Pay and Perform. All agreements and covenants to
be performed or observed by Tenant under this Lease shall be at Tenant's
sole cost and expense and without any abatement of Rent. If Tenant fails
to pay any sum of money to be paid by Tenant or to perform any other act
to be performed by Tenant under this Lease, Landlord shall have the
right, but shall not be obligated, and without waiving or releasing
Tenant from any obligations of Tenant, to make any such payment or to
perform any such other act on behalf of Tenant in accordance with this
Lease. All sums so paid by Landlord and all necessary incidental costs
shall be deemed Additional Rent hereunder and shall be payable by Tenant
to Landlord on demand, together with interest on all such sums from the
date of expenditure by Landlord on demand, together with interest on all
such sums from the date of expenditure by Landlord to the date or
repayment by Tenant at the maximum annual interest rate allowed by law
or, if there is no such maximum annual interest rate, at the rate of
twelve (12%) per annum. Landlord shall have, in addition to all other
rights and remedies of Landlord, the same rights and remedies in the
event of the nonpayment of such sums plus interest by Tenant as in the
case of default by Tenant in the payment of Rent.
(e) Personal Property. If Tenant vacates, abandons or surrenders the
Premises, or is dispossessed by process of law or otherwise, any movable
furniture, equipment, trade fixtures or personal property belonging to
Tenant and left in the Premises shall be deemed to be abandoned at the
option of Landlord, and Landlord shall have the right to sell or
otherwise dispose of such personal property in any commercially
reasonable manner.
(f) Jury Trial. Landlord and Tenant waive trial by jury in the event of
any action, proceeding or counterclaim brought by either Landlord or
Tenant against the other in connection with this Lease.
(g) Non-Waiver. No waiver by Landlord of any breach by Tenant or any of
Tenant's obligations, agreements or covenants herein shall be a waiver
of any
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subsequent breach or of any obligation, agreement or covenant, nor shall
any forbearance by Landlord to seek a remedy for any breach by Tenant be
a waiver by Landlord of any rights and remedies with respect to such or
any subsequent breach.
(h) Rights and Remedies Cumulative. No right or remedy herein conferred
upon or reserved to Landlord is intended to be exclusive of any other
right or remedy provided herein or by law, but each shall be cumulative
and in addition to every other right or remedy given herein or now or
hereafter existing at law or in equity or by statute.
(i) Rights of Mortgagee. In the event of any default by act or omission
by Landlord which would give Tenant the right to terminate this Lease or
to claim a partial or total eviction, Tenant shall not exercise any such
right until it has notified in writing the holder of any mortgage which
at the time shall be a mortgage lien on all or any portion of the
Property (if the name and address of such holder shall previously have
been furnished by written notice to Tenant) of such default, and until a
reasonable period for curing such default shall have elapsed following
the giving of such notice, during which period the holder shall have
failed to commence and continue to cure such default or to cause the
same to be remedied or cured.
25. Bankruptcy or Insolvency; Assumption; Adequate Protection. The following
shall apply in the event of the bankruptcy or insolvency of Tenant:
(a) If a petition is filed by, or an order for relief is entered against
Tenant under Chapter 7 of the Bankruptcy Code and the trustee of Tenant
elects to assume this Lease for the purpose of assigning it, the
election or assignment, or both, may be made only if all of the terms
and conditions of subparagraphs (b) and (d) below are satisfied. If the
trustee fails to elect to assume this Lease for the purpose of assigning
it within sixty (60) days after his appointment, this Lease will be
deemed to have been rejected. To be effective, an election to assume
this Lease must be in writing and addressed to Landlord and, in
Landlord's business judgment, all of the conditions hereinafter stated,
which Landlord and Tenant acknowledge to be commercially reasonable,
must have been satisfied. Landlord shall then immediately be entitled to
possession of the Premises without further obligation to Tenant or the
trustee, and this Lease will be canceled. Landlord's right to be
compensated for damages in the bankruptcy proceeding, however, shall
survive.
(b) If Tenant files a petition for reorganization under Chapters 11 or
13 of the Bankruptcy Code or a proceeding that is filed by or against
Tenant under any other Chapter of the Bankruptcy Code is converted to a
Chapter 11 or 13 proceeding and Tenant's trustee or Tenant as a
debtor-in-possession fails to assume this Lease within sixty (60) days
from the date of the filing of the petition or the conversion, the
trustee or the debtor-in-possession will be deemed to have rejected this
Lease. To be effective, an election to assume this Lease must be in
writing and addressed to Landlord and, in Landlord's business judgment,
all of the following conditions, which Landlord and Tenant acknowledge
to be commercially reasonable, must have been satisfied:
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(i) The trustee or the debtor-in-possession has cured or has
provided to Landlord adequate assurance, as defined below, that:
(1) The trustee will cure all monetary defaults under
this Lease within ten (10) days from the date of the
assumption; and
(2) The trustee will cure all non-monetary defaults
under this Lease within thirty (30) days from the date
of the assumption.
(ii) The trustee or the debtor-in-possession has compensated
Landlord, or has provided to Landlord adequate assurance, as
defined below, that within ten (10) days from the date of the
assumption Landlord will be compensated for any pecuniary loss
it incurred arising from the default of Tenant, the trustee, or
the debtor-in-possession as recited in Landlord's written
statement of pecuniary loss sent to the trustee or the
debtor-in-possession.
(iii) The trustee or the debtor-in-possession has provided
Landlord with adequate assurance of the future performance, as
defined below, of each of Tenant's obligations under the Lease;
provided, however, that:
(1) The trustee or debtor-in-possession will also
deposit with Landlord, as security for the timely
payment of Rent, an amount equal to three (3) months'
Monthly Rent Installments and other monetary charges
accruing under this Lease.
(2) If not otherwise required by the terms of this
Lease, the trustee or the debtor-in-possession will also
pay in advance, on each day that the Minimum Annual Rent
is payable, one-twelfth (1/12) of Tenant's annual
obligations this Lease for Annual Operating Costs.
(3) From and after the date of the assumption of this
Lease, the trustee or the debtor-in-possession will pay
the Minimum Annual Rent payable under this Lease in
advance in equal monthly installments on each day that
the Minimum Annual Rent is payable.
(4) The obligations imposed upon the trustee or the
debtor-in-possession will continue for Tenant after the
completion of bankruptcy proceedings.
(iv) Landlord has determined that the assumption of this Lease
will not:
(1) Breach any provision in any other lease, mortgage,
financing agreement, or other agreement by which
Landlord is bound relating to the Property; or
(2) Disrupt, in Landlord's judgment, the tenant mix of
the Building or any other attempt by Landlord to provide
a specific variety of
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tenants in the Building that, in Landlord's judgment,
would be most beneficial to all of the tenants of the
Building and would enhance the image, reputation, and
profitability of the Building.
For purposes of this Paragraph 25, "adequate assurance" means
that:
(1) Landlord will determine that the trustee or the
debtor-in-possession has, and will continue to have,
sufficient unencumbered assets after the payment of all
secured obligations and administrative expenses to
assure Landlord that the trustee or the
debtor-in-possession will have sufficient funds to
fulfill Tenant's obligations under this Lease and to
keep the Premises properly staffed with sufficient
employees to conduct a fully operational, actively
promoted business on the Premises; and
(2) An order will have been entered segregating
sufficient cash payable to Landlord and/or a valid and
perfected first lien and security interest will have
been granted in property of Tenant, trustee, or
debtor-in-possession that is acceptable for value and
kind to Landlord, to secure to Landlord the obligation
of the trustee or debtor-in-possession to cure the
monetary or nonmonetary defaults under this Lease within
the time periods set forth above.
For the purposes of this Paragraph 25, "adequate assurance of
future performance" means that Landlord has ascertained that
each of the following conditions has been satisfied:
(1) The assignee has submitted a current financial
statement, audited by a certified public accountant,
that shows a net worth and working capital in amounts
determined by Landlord to be sufficient to assure the
future performance by the assignee of Tenant's
obligations under this Lease;
(2) If requested by Landlord, the assignee will obtain
guarantees, in form and substance satisfactory to
Landlord from one or more persons who satisfy Landlord's
standards of creditworthiness;
(3) Landlord has obtained all consents or waivers from
any third party required under any lease, mortgage,
financing arrangement, or other agreement by which
Landlord is bound, to enable Landlord to permit the
assignment; and
(4) When, pursuant to the Bankruptcy Code, the trustee
or the debtor-in-possession is obligated to pay
reasonable use and occupancy charges for the use of all
or part of the Premises, the charges will not be less
than the Minimum Annual Rent and Additional Rent and
other monetary obligations of Tenant included herein as
Rent.
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(c) In the event that this Lease is assigned by a trustee appointed for
Tenant or by Tenant as debtor-in-possession under the provisions of
subparagraph (b) above and, thereafter, Tenant is either adjudicated a
bankrupt or files a subsequent petition for arrangement under Chapter 11
of the Bankruptcy Code, then Landlord may terminate, at its option, this
Lease and all Tenant's rights under it, by giving written notice of
Landlord's election to terminate.
(d) If the trustee or the debtor-in-possession has assumed the Lease,
under the terms of subparagraph (a) or (b) above, and elects to assign
Tenant's interest under this Lease or the estate created by that
interest to any other person, that interest or estate may be assigned
only if Landlord acknowledges in writing that the intended assignee has
provided adequate assurance, as defined in this Paragraph 25, of future
performance of all of the terms, covenants, and conditions of this Lease
to be performed by Tenant.
(e) Neither Tenant's interest in the Lease nor any estate of Tenant
created in the Lease will pass to any trustee, receiver, assignee for
the benefit of creditors, or any other person or entity, or otherwise by
operation of law under the laws of any state having jurisdiction of the
person or property of Tenant unless Landlord consents in writing to the
transfer. Landlord's acceptance of Rent or any other payments from any
trustee, receiver, assignee, person, or other entity will not be deemed
to have waived, or waive, the need to obtain Landlord's consent or
Landlord's right to terminate this Lease for any transfer of Tenant's
interest under this Lease without that consent.
26. Interpretation.
(a) Captions. The captions in this Lease are for convenience only and
are not a part of this Lease and do not in any way define, limit,
describe or amplify the terms and provisions of this Lease or the scope
or intent thereof.
(b) Entire Agreement. This Lease represents the entire agreement between
the parties hereto and there are no collateral or oral agreements or
understandings between Landlord and Tenant with respect to the Premises
or the Property. This Lease supersedes all prior negotiations,
agreements, informational brochures, letters, promotional information
and other statements and materials made or furnished by Landlord or its
agents. The submission of this Lease by Landlord, its attorneys or
agents, for examination or for execution by Tenant, does not constitute
a reservation of (or option for) the Premises in favor of Tenant; and
Tenant shall have no right or interest in the Premises, and Landlord
shall have no liability hereunder, unless and until this Lease is
executed and delivered by Landlord. No rights, easements or licenses are
acquired in the Property or any land adjacent to the Property by Tenant
by implication or otherwise except as expressly set forth in the
provisions of this Lease. This Lease shall not be modified in any manner
except by an instrument in writing executed by the parties. The
masculine (or neuter) pronoun, singular number, shall include the
masculine, feminine and neuter genders and the singular and plural
number.
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(c) Exhibits. Each writing or plan referred to herein as being attached
hereto as an Exhibit or otherwise designated herein as an Exhibit hereto
is hereby made a part hereof.
(d) Interest. Wherever interest is required to be paid hereunder, such
interest shall be at the rate set forth in subparagraph (c)(iv) of
Paragraph 7.
27. Definition of Landlord, Landlord's Liability. The word "Landlord" is used
herein to include the Landlord named above as well as its successors and
assigns, each of whom shall have the same rights, remedies, powers, authorities
and privileges as it would have had it originally signed this Lease as Landlord.
Any such person, whether or not named herein, shall have no liability hereunder
after it ceases to hold title to the Premises except for obligations which may
have theretofore accrued. Neither Landlord nor any principal of Landlord nor any
owner of the Property, whether disclosed or undisclosed, shall have any personal
liability with respect to any of the provisions of this Lease or the Premises,
and if Landlord is in breach or default with respect to Landlord's obligations
under this Lease or otherwise, Tenant shall look solely to the equity of
Landlord in the Property for the satisfaction of Tenant's remedies.
28. Notices. All notices, demands, requests, consents, certificates and waivers
required or permitted hereunder from either party to the other shall be in
writing and sent by United States certified mail, return receipt requested,
postage prepaid. Notices to Tenant shall be addressed to Tenant at the address
designated in Item (b) of Basic Terms or, after the Commencement Date, to the
Premises. Notices to Landlord shall be addressed to Landlord at the address
designated in Item (a) of Basic Terms, with a copy to any mortgagee or other
party designated by Landlord. Either party may at any time, in the manner set
forth for giving notices to the other, specify a different address to which
notices to it shall be sent.
29. Brokerage. Tenant represents and warrants that it has not had any dealings
with any realtors, brokers, or agents in connection with the negotiation of this
Lease other than as set forth in Item (o) of Basic Terms. Tenant shall defend,
hold harmless and indemnify Landlord from and against any claims with respect to
the negotiation or procurement of this Lease by any other realtor, broker or
agent.
30. Intentionally Omitted.
31. Guarantee. In the event a guarantee is executed in connection with this
Lease, said guarantee shall be deemed a part of this Lease.
32. Hazardous Substances. The term "Hazardous Substances, " as used in this
Lease, shall include, without limitation, flammables, explosives, radioactive
materials, asbestos, polychlorinated biphenyls (PCB's), chemicals known to cause
cancer or reproductive toxicity, pollutants, contaminants, hazardous wastes,
toxic substances or related materials, petroleum and petroleum products, and
substances declared to be hazardous or toxic under any law or regulation now or
hereafter enacted or promulgated by any governmental authority.
(a) Environmental Prohibitions. Tenant shall not cause or permit to
occur:
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(i) Any violation of any federal, state, or local law,
ordinance, or regulation now or hereafter enacted, related to
environmental conditions on, under, or about the Premises, or
arising from Tenant's use or occupancy of the Premises,
including, but not limited to, soil and ground water conditions;
or
(ii) The use, generation, release, manufacture, refining,
production, processing, storage, or disposal of any Hazardous
Substance on, under, or about the Premises, or the
transportation to or from the Premises of any Hazardous
Substance.
(b) Environmental Compliance.
(i) Tenant shall, at Tenant's expense, comply with all laws
regulating the use, generation, storage, transportation, or
disposal of Hazardous Substances (the "Laws").
(ii) Tenant shall, at Tenant's expense, make all submissions to,
provide all information required by, and comply with all
requirements of all governmental authorities (the "Authorities")
under the Laws.
(iii) If any Authority or any third party demands that a
clean-up plan be prepared and that a clean-up be undertaken
because of any deposit, spill, discharge, or other release of
Hazardous Substances that occurs during the Term of this Lease,
at or from the Premises, or which arises at any time from
Tenant's use or occupancy of the Premises, then Tenant shall, at
Tenant's expense, prepare and submit the required plans and all
related bonds and other financial assurances; and Tenant shall
carry out all work required by such clean-up plans.
(iv) Tenant shall promptly provide all information regarding the
use, generation, storage, transportation or disposal of
Hazardous Substances that is requested by Landlord. If Tenant
fails to fulfill any duty imposed under this Paragraph 32,
within a reasonable time, Landlord may do so; and in such case,
Tenant shall cooperate with Landlord in order to prepare all
documents Landlord deems necessary or appropriate to determine
the applicability of the Laws to the Premises and Tenant's use
thereof, and for compliance therewith, and, Tenant shall execute
all documents promptly upon Landlord's request. No such action
by Landlord and no attempt made by Landlord to mitigate damages,
under any Law shall constitute a waiver of any of Tenant's
obligations under this Paragraph 32.
(v) Tenant's obligations and liabilities under this Paragraph 32
shall survive the expiration or termination of this Lease.
(c) Environmental Indemnity. Tenant shall indemnify, defend, and hold
harmless Landlord and its officers, directors and shareholders from all
fines, suits, procedures,
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claims, and actions of every kind and all costs associated therewith
(including attorneys' and consultants' fees) arising out of or in any
way connected with any deposit, spill, discharge, or other release of
Hazardous Substances that occurs during the Lease Term at or from the
Premises, or which arises at any time, from Tenant's use or occupancy of
the Premises, or from Tenant's failure to provide all information, make
all submissions, and take all actions required by all Authorities under
the Laws and all other environmental laws. Tenant's obligations and
liabilities under this Paragraph 32(c) shall survive the expiration or
termination of this Lease.
33. Environmental. Tenant acknowledges that Landlord has informed Tenant that
the Building contains asbestos or asbestos-containing materials. At Tenant's
request, Landlord shall made available to Tenant (but without warranty) at the
Building during normal hours, copies of any inspection reports, tests or similar
documents in Landlord's possession respecting the existence and the location of
asbestos in or about the Building. To the extent such reports, tests or other
documents indicate any asbestos-containing materials in or about the Building,
this Paragraph 33 and such documents shall constitute notice and disclosure as
required under California Health and Safety Code Sections 25359.7, 25915.5 and
25917, as applicable with respect to the presence of asbestos or
asbestos-containing materials disclosed on such documents. As required by
California Health and Safety Code Section 25259.7 and any other provisions of
State law, Landlord shall notify Tenant, and Tenant shall notify Landlord, if
either knows or has reasonable causes to believe that any release of hazardous
substance has come to be located on or beneath the Building.
34. Parking. Landlord shall provide Tenant with sixty (60) parking spaces at the
Property, plus one additional space for each additional 500 rentable square feet
pursuant to Tenant's exercise of Tenant's right of first offer as discussed in
Paragraph 35, on a nonexclusive basis without fee or charge to Tenant, except
for Tenant's share of Annual Operating Costs with respect to the parking area.
Nothing contained herein shall be deemed to impose any liability upon Landlord
for personal injury or theft, for damage to any motor vehicle, or for loss of
property from within any motor vehicle, which is suffered by Tenant or any of
Tenant's employees, customers, service suppliers or other invitees in connection
with their use of said automobile parking area except when caused by Landlord's
gross negligence or willful misconduct. In order to assure the proper and
efficient operation and -maintenance of the automobile parking area, Tenant
agrees to comply with all nondiscriminatory rules and regulations established by
Landlord from time to time, and shall cause each of its employees, customers,
service suppliers and invitees to comply with such rules and regulations. The
rights of Tenant and Tenant's employees, customers, service suppliers and
invitees shall at all times be subject to the rights of Landlord and other
tenants in the Building to use the same in common with Tenant and Tenant's
employees, customers, service suppliers and invitees. Landlord shall have the
right to relocate the parking area to another location on the Property. Landlord
shall have the right, in Landlord's sole discretion exercisable at any time, to
impose reasonable fees and charges for parking in the parking area, provided,
however, Tenant shall continue to have sixty (60) parking spaces at the Project
on a non-exclusive basis without fee or charge to Tenant.
35. Right of First Offering. If any space on the eleventh floor of the Building
contiguous to the Premises shall become available for reletting at any time
during the Lease Term, and
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provided (i) that Tenant shall be in possession of the Premises, (ii) that this
Lease shall be in full force and effect, and (iii) that Tenant shall not be in
default under any of the terms, provisions, covenants, or conditions of this
Lease, Tenant shall have a right of first offer to lease such space for the
remaining balance of the Lease Term upon the same terms and conditions contained
in this Lease. Promptly after learning of the availability for lease of such
space, Landlord shall give Tenant written notice of same, which notice shall set
forth the date upon which such space will be made available to Tenant. Tenant
may then exercise such right of first offer by giving written notice of its
acceptance of such offer to Landlord within ten (10) business days after the
date of Landlord's notice. Tenant's failure to respond in writing notifying
Landlord that Tenant elects to lease such space within said ten (10) day period
shall extinguish Tenant's right to exercise such right of first offer with
regard to such space and shall relieve Landlord of any liability with respect to
the same. Any expansion space shall be delivered to Tenant vacant and
unoccupied, and in an "as is" condition. Landlord shall deliver the expansion
space to Tenant on the date specified by Landlord in its offer notice, but in no
event shall Landlord have any liability for the failure to deliver the expansion
space to Tenant on such date, unless another tenant shall hold over in such
expansion space, in which event Landlord shall have no liability to Tenant for a
failure to timely deliver the expansion space pursuant to this Paragraph 35 so
long as Landlord exercises reasonable diligence thereafter in removing such
hold-over tenant, nor shall any such failure impair the validity of this Lease,
extend the Lease Term, or impair any obligations of Tenant under this Lease.
36. Option to Extend Term. Subject to the provisions set forth below, Landlord
hereby grants to Tenant one (1) option (the "Extension Option") to extend the
term of this Lease for a period of three (3) years (the "Extension Term"). The
Extension Term shall commence immediately following the Expiration Date as is
set forth in Item (g) of Basic Terms. The Extension Option shall be effective
only as to that portion of the Premises directly leased by Tenant from Landlord
at the time the Extension Option is exercised, and only if Tenant is not in
default under any of the terms or conditions of this Lease at the time the
Extension Option is exercised or at any time thereafter until the Extension Term
is commenced. The Extension Option must be exercised, if at all, by written
notice from Tenant to Landlord delivered not less than four (4) months prior to
the Expiration Date. Any such notice given by Tenant to Landlord shall be
irrevocable, except as provided for in subparagraph (a)(iv) below. The Extension
Term shall be upon the terms, covenants and conditions set forth in subparagraph
(b) below. The option to extend shall be deemed personal to Tenant and may not
be assigned, except to an assignee under an assignment made pursuant to the
provisions of this Lease. If Tenant fails to exercise the Extension Option in a
timely manner as required above, said Extension Option shall terminate.
(a) If Tenant elects to exercise the Extension Option, the resulting
Extension Term shall be upon and subject to all of the terms, covenants
and conditions of this Lease, except as otherwise set forth below:
(i) Landlord shall have no obligation to do any work of
improvement or perform any services and Tenant shall accept the
Premises in an "as-is" "where-is" condition;
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(ii) Tenant shall have no further renewal option;
(iii) The Base Year for calculating Base Annual Operating Costs
shall remain the same as that set forth in Item (k) of Basic
Terms; and
(iv) The Minimum Annual Rent applicable to the Premises shall be
adjusted to one hundred percent (100%) of the Fair Market Rental
(as hereinafter defined) as of commencement of the Extension
Term, provided, however, that the Minimum Annual Rent shall in
no event be less than $2.20 per rentable square foot per month.
For purposes hereof, "Fair Market Rental" shall mean the rental
and all other monetary payments and escalations, including,
without limitation, consumer price indexing, that Landlord could
obtain from a third party desiring to lease the Premises for
said Extension Term on a "fully-serviced" basis, taking into
account the age of the Building, the size, location and floor
levels of the Premises, the quality of construction of the
Building and the Premises, the tenant improvements, the services
provided under the terms of this Lease, the rental then being
obtained for new leases of space comparable to the Premises in
the Mountain View market, and all other factors that would be
relevant to a third party desiring to lease the Premises for
said Extension Term in determining the rental such party would
be willing to pay therefor; provided, however, no allowance for
the construction of tenant improvements shall be taken into
account in determining the Fair Market Rental or for costs which
would ordinarily be incurred in leasing to a new (nonrenewal)
tenant for brokerage commissions, advertising costs, attorneys'
fees, interruption of rentals due to a change in tenants, lost
rentals during any improvement period, or similar costs. No
later than three (3) months prior to commencement of the
Extension Term, Landlord shall notify Tenant of the Fair Market
Rental as determined by Landlord. Tenant shall have thirty (30)
days (the "Tenant's Review Period") after receipt of Landlord's
notice of the new Rent within which to accept such Rent or
reasonably to object thereto in writing. In the event that
Tenant does not object in writing to Landlord's determination of
Fair Market Rental, Tenant shall be deemed to have accepted such
determination. If Tenant objects to Landlord's determination of
such new Rent, Landlord and Tenant then shall attempt for thirty
(30) days to agree upon the Fair Market Rental, using their best
good faith efforts. If Landlord and Tenant fail to reach
agreement within thirty (30) days following the Tenant's Review
Period (the "Outside Agreement Date"), then the Fair Market
Rental shall be determined by arbitration in accordance with the
following:
(A) Landlord and Tenant each shall appoint one
arbitrator who shall be a member of the American
Institute of Real Estate Appraisers (or any successor
association or body of comparable standing) and shall
have been engaged in the appraisal of commercial real
estate in the area of the Building for a period of not
less than five (5) years immediately preceding his/her
appointment.
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(B) The two (2) arbitrators so appointed shall, within
fifteen (15) days of the date of appointment of the last
appointed arbitrator, agree upon and appoint a third
arbitrator who shall be qualified under the same
criteria set forth hereinabove for the qualification of
the initial two (2) arbitrators.
(C) The three (3) arbitrators shall, within thirty (30)
days of the appointment of the third arbitrator,
determine the Fair Market Rental, and shall notify
Landlord and Tenant thereof.
(D) The decision of a majority of the three (3)
arbitrators shall be binding on Landlord and Tenant.
(E) If either Landlord or Tenant should fail to appoint
an arbitrator within fifteen (15) days after the Outside
Agreement Date, the arbitrator who is timely appointed
shall, within thirty (30) days of his/her appointment,
determine the Fair Market Rental and notify Landlord and
Tenant thereof, and such arbitrator's decision shall be
binding upon Landlord and Tenant.
(F) If a majority of the arbitrators cannot agree as to
the Fair Market Rental, then Fair Market Rental shall be
the middle determination of Fair Market Rental of the
three (3) arbitrators and the parties shall disregard
the high and low determinations of two (2) of the three
(3) arbitrators.
(G) If the two (2) arbitrators fail to agree upon and
appoint a third arbitrator within fifteen (15) days of
the appointment of the last appointed arbitrator, such
third arbitrator shall be appointed by the then
Presiding Judge of Santa Xxxxx County, California, and
neither Landlord nor Tenant shall raise any question to
such Judge's full power and authority to entertain the
application for and make such appointment.
(H) The cost of arbitration shall be paid Landlord and
Tenant equally. The decision of the arbitrators may be
entered in any court having jurisdiction thereof.
If either by agreement of the parties or by determination of an
appraisal the Fair Market Rental is not finally determined by the commencement
of said Extension Term, then Tenant shall continue to pay the monthly Rent in
effect immediately prior to the commencement of said Extension Term until such
time as the Fair Market Rental is finally determined by agreement of the parties
or by an appraiser. If the Fair Market Rental as finally determined for said
Extension Term exceeds the monthly amount previously paid by Tenant for the
Extension Term, Tenant shall forthwith pay the difference to Landlord for each
of the months Tenant paid the lesser amount.
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38
IN WITNESS WHEREOF, and in consideration of the mutual entry into this Lease and
for other good and valuable consideration, and intending to be legally bound,
each party hereto has caused this Agreement of Lease to be duly executed as of
the day and year first above written.
LANDLORD:
THE TRAVELERS INSURANCE COMPANY,
a Connecticut Corporation
By [SIGNATURE ILLEGIBLE]
---------------------------------
Its: Vice President
--------------------------------
By [SIGNATURE ILLEGIBLE]
---------------------------------
Its: Assistant Secretary
--------------------------------
TENANT:
ACADEMIC SYSTEMS CORPORATION,
a California Corporation
By [SIGNATURE ILLEGIBLE]
---------------------------------
Its: VP & CFO
--------------------------------
34
39
(Landlord's Acknowledgment)
STATE OF CALIFORNIA
COUNTY OF CONTRA COSTA
On AUGUST 30, 1996 before me Xxxxxxx X. Xxxxxxxx personally appeared Xxx X.
XxXxxx & Xxxxxx X. Xxxxxxx, personally known to me to be the person(s) whose
name(s) are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacity(ies), and that by their
signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ XXXXXXX X. XXXXXXXX (seal) [SEAL]
---------------------------------
40
(Tenant Acknowledgment)
XXXXX XX XXXXXXXXXX
XXXXXX XX XXXXX XXXXX
Xx JULY 15, 1996 before me XXXXXXX X. XXXX personally appeared XXXXXXX X.
XXXXXXXX, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signatures) on
the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ XXXXXXX X. XXXX (seal)
---------------------------------
[SEAL]
41
[FLOOR PLAN]
42
[FLOOR PLAN]
43
EXHIBIT "B"
DESCRIPTION OF PROPERTY
Those parcels of land in the City of Mountain View, County of Santa Xxxxx, State
of California described as follows:
PARCEL 1:
All of lots 10, 11, 13, 14, 15, 16, 17 and 18, Block 1, Range 4 South, Map of
the Xxxxxx Addition to the Town of New Mountain View, filed September 17, 1888,
Map Book D, Page 23, Santa Xxxxx County Records.
PARCEL 2:
Portion of Block 1, Range 4 South, as shown upon that certain Map entitled, "Map
of the Xxxxxx Addition to the Town of New Mountain View," filed September 17,
1888, Map Book D. Page 23, Santa Xxxxx County Records, and more particularly
described as follows:
Beginning at a point on the westerly line of Xxxxxx Street distant thereon south
26 degrees west 214 feet from the point of intersection of the westerly line of
Xxxxxx Street with the southerly line of California Street; thence south 26
degrees west and along said westerly line of Xxxxxx Xxxxxx 00 feet; thence at
right angles north 64 degrees west and parallel with the southerly line of
California Street 150 feet; thence at right angles north 26 degrees east and
parallel with the westerly line of Xxxxxx xxxxxx 00 feet; thence at right angles
south 64 degrees east and parallel with the southerly line of California Street,
150 feet to the point of beginning
PARCEL 3:
A non-exclusive easement for ingress, egress and parking purposes over a parcel
of land described as follows:
Portion of Xxx 0, Xxxxx 0, Xxxxx 0 Xxxxx, Xxx of the Xxxxxx Addition to the Town
of New Mountain View, filed September 17, 1888, Map Book D, page 23, Santa Xxxxx
County Records, more particularly described as follows:
Beginning at point on the northwesterly line of Xxxxxx Street, distant thereon
2.00 feet southwesterly from the dividing line between Lots 8 and 9, Block 2,
Range 4 South, as said Street; Lots, Block and Range are shown upon the Map
herein referred to; thence southwesterly along the said northwesterly line of
Xxxxxx Xxxxxx, 00 feet to the dividing line between Lots 9 and 12, in said Block
2, Range 4 South; thence northwesterly along the said dividing line between Lots
9 and 12, a distance of 115 feet; thence northeasterly and parallel with the
said northwesterly line of Xxxxxx Xxxxxx, 00 feet; thence southeasterly and
parallel with the said dividing line between lots 8 and 9, a distance of 115
feet to the point Of beginning.
44
EXHIBIT "C"
TENANT IMPROVEMENT WORK AGREEMENT
This Tenant Improvement Work Agreement (this "Agreement") is made and entered
into as of the 1st day of July, 1996 by and between THE TRAVELERS INSURANCE
COMPANY, a Connecticut corporation (hereinafter "Landlord") and ACADEMIC SYSTEMS
CORPORATION, a California corporation (hereinafter "Tenant").
A. Landlord and Tenant have entered into a Lease ("Lease"), dated as of July 1,
1996, for Suite Nos. 1111, 1120 and 1200 located on the 11th and 12th
floors in the Building located at 000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx
00000 (hereinafter the "Premises").
B. Certain tenant improvement work is to be completed upon the Premises.
C. The purpose of this Agreement is to set forth the relative rights and
obligations of Landlord and Tenant with respect to space planning, engineering,
final working drawings, and the construction and installation of certain tenant
improvements upon the Premises.
NOW THEREFORE, for and in consideration of the agreement to lease the Premises,
pay rent, and the mutual covenants contained herein, the parties agree as
follows:
1. Plans and Specifications.
(a) Tenant shall cooperate with Landlord and Landlord's space
planner, architect and engineer with respect to preparation of space plans for
leasehold improvements to the Premises, which space plans shall include, without
limitation, the location of doors, partitions, electrical and telephone outlets,
plumbing fixtures, heavy floor loads and other special requirements, but
excluding design and furniture layouts, which services shall be obtained by
Tenant at Tenant's sole cost and expense. Tenant's space planner or architect
may prepare, at Tenant's sole expense, preliminary space plans. The final space
plans submitted to Tenant for approval, however, shall be prepared by Landlord's
space planner, engineer and/or architect. Tenant shall approve or object to
(with detailed revisions) the space plans in writing within ten (10) days after
receipt thereof.
(b) Based on the approved space plans, Landlord shall cause its
space planner, architect and engineer to prepare detailed plans and
specifications for construction of leasehold improvements (the "Plans").
Tenant's space planner or architect may, at Tenant's sole expense, select
finishes and coordinate the design with Landlord's space planner, engineer or
architect. The Plans, however, shall be prepared by Landlord's space planner,
architect and engineer. Tenant shall approve or object to (with detailed
revisions) the Plans in writing within ten (10) days after receipt thereof.
2. Cost of Leasehold Improvements.
(a) With reasonable promptness after approval of the Plans,
Landlord shall provide to Tenant a detailed breakdown of the estimated cost of
the leasehold improvements;
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the cost of space plans and specifications and studies; space planning,
architectural and engineering fees; governmental agency plan check, permit and
other fees; sales and use taxes; Title 24 fees; ADA compliance fees; all other
costs to be incurred by Landlord in the construction of the leasehold
improvements; and a fee for Landlord's contractor for profit, overhead and
general conditions. Within ten (10) days after receipt of the breakdown of the
cost of leasehold improvements, Tenant shall either approve same in writing or
shall provide Landlord with a detailed list of revisions to the approved Plans.
(b) Wherever practical, Landlord shall obtain, through its
general contractor, a minimum of three quotes.
(c) Tenant shall bear the cost of leasehold improvements,
subject to a leasehold improvement allowance in the amount of $106,230.00 (the
"Leasehold Improvement Allowance") which shall be credited by Landlord toward
the cost of leasehold improvements, including, at Tenant's option, carpeting and
painting, space plan fees, and other tenant improvements. In the event that such
cost of leasehold improvements exceeds the Leasehold Improvement Allowance,
Tenant shall pay such excess to Landlord by cashier's check ("Improvement
Payment"), which payment shall be made within five (5) days after Landlord's
notice to Tenant that Landlord is prepared to commence construction. In the
event that such cost of leasehold improvements is less than the Leasehold
Improvement Allowance, the unused portion thereof shall belong to Landlord.
(d) In the event Tenant fails to pay to Landlord the Improvement
Payment within five (5) days after notice by Landlord to Tenant that Landlord is
prepared to commence construction, Landlord shall not be obligated to commence
work on the tenant improvements for the Premises, and such failure to pay shall
not delay the Commencement Date of the Lease or any of Tenant's obligations
thereunder including, without limitation, Tenant's obligation to pay rent. In
the event that Tenant fails to pay to Landlord, upon Substantial Completion (as
defined in Paragraph 4) of tenant improvements for the Premises, a sum equal to
the actual cost of construction of tenant improvements in excess of Leasehold
Improvement Allowance, less any portion of the Improvement Payment previously
paid by Tenant to Landlord, such failure shall constitute a default under the
Lease and Landlord shall be entitled to all rights and remedies available under
the Lease, or at law or in equity, or otherwise, which rights shall be
cumulative. All actual sums so owing to Landlord shall constitute Additional
Rent and shall bear interest at the rate provided for late payments in the
Lease. Tenant shall be liable for all costs of enforcing the rights set forth
herein, including Landlord's reasonable attorneys' fees.
(e) To the extent that the cost of leasehold improvements
increases above the Leasehold Improvement Allowance due to the requirements of
any governmental agency, subsequent to Tenant's approval, Tenant shall pay to
Landlord the amount of such increase within five (5) days after Landlord's
written notice.
(f) In the event that Tenant requests a change in the Plans
subsequent to approval of the cost of leasehold improvements, Landlord shall
advise Tenant promptly of any increase in the estimated cost of leasehold
improvements and any delay such change would be likely to cause in the
construction of the leasehold improvements. Tenant shall
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approve or disapprove such change in writing within five (5) days after written
notice. In the event that Tenant approves such change, Tenant shall accompany
its approval with payment in the amount of any increase above the Leasehold
Improvement Allowance resulting therefrom.
3. Construction of Leasehold Improvements.
(a) Upon approval by Tenant of the cost of leasehold
improvements, and upon payment of any excess, Landlord shall cause its
contractor to proceed to secure a building permit and commence construction.
(b) Landlord shall not be liable for any direct or indirect
damages as a result of any delay in construction.
4. Substantial Completion. Substantial Completion referred to in
Paragraph 2(d) shall mean Landlord has completed all the work to be performed by
Landlord in accordance with this Agreement to such state of completion as will
allow Tenant to utilize the Premises for its intended purpose, without material
interference by reason of final completion, as determined by Landlord's space
planner, engineer or architect.
5. ADA Compliance. Any payments or actions required for the Premises to
comply with ADA pertaining to the construction of Tenant's leasehold
improvements pursuant to this Agreement shall be the sole responsibility of
Tenant. Any payments or actions required for the common areas of the Building to
comply with ADA pertaining to the construction of Tenant's leasehold
improvements pursuant to this Agreement shall be the sole responsibility of
Landlord.
6. Miscellaneous.
(a) Definitions. Defined terms not otherwise defined in this
Agreement shall have the meanings ascribed to such terms in the
Lease.
(b) Heading. The headings contained in this Agreement are for
convenience only.
(c) Force Majeure. Landlord shall not be responsible for failure
to complete Building Standard or Non-Standard work due to
reasons beyond its control including, without limitation,
strikes, natural disasters, acts of God, civil commotion, riots,
war, or governmental action.
(d) Election of Law. This Agreement shall be governed by the law
of the State of California other than such law with respect to
conflicts of law.
(e) Time is of the Essence. Time is of the essence in this
Agreement, and all deadlines shall be strictly adhered to,
unless otherwise provided herein.
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(f) Entire Agreement. This Agreement sets forth the entire
agreement of Landlord and Tenant regarding Tenant Improvements.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first hereinabove set forth.
"LANDLORD"
THE TRAVELERS INSURANCE COMPANY,
a Connecticut corporation
By:
---------------------------------
Its:
---------------------------------
"TENANT"
ACADEMIC SYSTEMS CORPORATION,
a California corporation
By:
---------------------------------
Its:
---------------------------------
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EXHIBIT "D"
FIRST AMENDMENT TO LEASE
THIS AGREEMENT, made this ________ day of ________________, 1996 by and between
THE TRAVELERS INSURANCE COMPANY, a Connecticut corporation (hereinafter referred
to as "Landlord"), and ACADEMIC SYSTEMS CORPORATION, a California corporation
(hereinafter referred to as "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant did enter into that certain Lease Agreement dated
__________ ____, 1996, for the demise of __________________________________
("Premises"), which said Premises, and any and all improvements located thereon
are more particularly described therein (hereinafter the "Lease"); and
WHEREAS, all terms defined in the Lease shall have the same meanings when
referred to herein; and,
WHEREAS, Landlord has requested that Tenant acknowledge the "Commencement Date"
of the Lease, pursuant to and in accordance with Paragraph 5 thereof, and
Landlord has further requested Tenant to acknowledge and confirm (i) its
obligations attendant upon such Commencement Date, and (ii) the "Expiration
Date" of the Lease, pursuant to and in accordance with Paragraph 5 thereof; and
WHEREAS, Tenant has agreed to acknowledge said Lease Commencement and Expiration
Dates.
NOW, THEREFORE, in consideration of the Premises and the mutual promises and
covenants herein contained, Landlord and Tenant hereby agree as follows:
1. The Commencement Date of the Lease shall be ____________________ and the
Expiration Date of the Lease shall be _________________, and such respective
dates of commencement and expiration of the Lease shall, if different from the
dates designated in Item (g) of Basic Terms of the Lease, be substituted
therefor. It is understood and agreed by Landlord and Tenant that any and all of
Tenant's covenants and obligations as by the Lease provided shall become
effective as of the said Commencement Date, including, but not limited to, the
payment of Minimum Annual Rent, Additional Rent, insurance, and any and all
other Rent as designated in Item (h) of Basic Terms of the Lease.
2. The number of square feet comprising the Premises shall be _________________
square feet, and such ___________________ square feet shall be substituted for
the approximate square footage as set forth in Item (c) of Basic Terms of the
Lease, and in each and every other Paragraph of the Lease wherein reference is
made to the approximate number of square feet comprising the Premises.
D-1
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3. All work to be performed by Landlord pursuant to Paragraph 4 of the Lease has
been substantially completed, and Tenant has accepted the performance of such
work by Landlord.
4. Except as hereby modified and amended, all other terms, provisions, covenants
and conditions of the Lease shall remain and in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have caused this First Amendment to
lease to be executed by their duly authorized representatives on the day and
year above written.
LANDLORD:
THE TRAVELERS INSURANCE COMPANY,
a Connecticut corporation
By:
---------------------------------
Its:
--------------------------------
TENANT:
ACADEMIC SYSTEMS CORPORATION,
a California corporation
By:
---------------------------------
Its:
--------------------------------
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EXHIBIT "E"
CLEANING AND JANITORIAL SERVICES
I. MAIN LOBBIES, ELEVATOR LOBBIES, STAIRWAYS, ELEVATORS
Nightly Services (Five nights per week)
1. Gather all wastepaper and place for disposal. Replace liner bags from
customer's stock or provide and back charge.
2. Dust mop tile or hard surfaced floors.
3. Vacuum all carpet.
4. Spot clean all carpet.
5. Empty and wash all ashtrays.
6. Wash entrance door glass, spot clean partition glass.
7. Dust all horizontal surfaces. Spot wash to remove spillage.
8. Vacuum all walk-on mats.
9. Clean and polish elevator doors, tracks, cab stainless or brass. Vacuum
carpet and spot clean.
10. Damp mop tile or hard surfaced floors.
11. Spray buff tile or hard surfaced floors.
12. Spot clean all wall surfaces to remove smudges and hand prints.
13. Wash and sanitize drinking fountains.
Weekly Services (One time per week)
1. Dust mop and damp mop stairways.
2. Dust down banisters and risers in stairways.
3. Xxxxxxx clean carpeted lobbies.
Monthly Services
1. Wash both sides of all interior and exterior glass (except for the
interior of glass in leased space).
Semi Annual Services (Two times per year)
1. Strip, thoroughly rinse, and apply two coats of sealer, and two coats of
finish to tile and hard surfaced floors.
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II. GENERAL OFFICE AREA
Nightly Services (Five nights per week)
1. Gather all wastepaper and place for disposal. Replace liner bags from
customer's stock or provide and back charge.
2. Empty and wash all ashtrays.
3. Dust mop all tile and hard surfaced floors.
4. Vacuum all carpeted traffic pattern areas.
5. Spot clean carpeted areas.
6. Dust desks, chairs, tables, file cabinets, and telephones.
7. Remove fingerprints from doors, light switches, and partition glass.
8. Wash all drinking fountains.
Weekly Services (One time per week)
1. Dust low and high horizontal and vertical surfaces.
2. Detail vacuum comers, edges, and hard to reach areas not vacuumed
nightly.
3. Dust mop, damp mop, and spray buff tile floors.
4. Vacuum all fabric office furniture, including chairs and couches.
Monthly Services (Every two months)
1. Refinish all tile floors with one (1) coat of floor finish.
2. Vacuum draperies and ceiling vents.
Quarterly Services
1. Wash both sides of all exterior glass.
Annual Services (Where applicable)
1. Strip, thoroughly rinse, and apply two (2) coats of sealer and two (2)
coats of finish to tile floors.
2. Wash ceiling lights to include lenses, bulbs, and pans.
III. RESTROOMS
Nightly Services (Five nights per week)
1. Clean and sanitize wash basins, toilets, and urinals.
2. Clean and polish dispensers, chrome fittings, mirrors, and entrance
doors.
3. Dust mop and wet mop floors using a disinfectant mopping soap.
4. Dust ledges and partitions.
5. Fill dispensers from stock. Towels, tissue, sanitary napkins, and hand
soap to be furnished by customer or provided and back charged.
X-0
00
0. Report any fixture not working properly to building management.
Weekly Services (One time per week)
1. Spot wash partitions, walls, and doors.
Monthly Services (One time per month)
1. Machine scrub ceramic tile floors.
2. Dust ceiling vents.
3. Hand wash all ceramic walls.
IV. LUNCHROOM
Nightly Services (Five nights per week)
1. Empty trash receptacles and damp wipe outside of container.
2. Dust mop tile or hard surfaced floors.
3. Damp mop spills from tile or hard surfaced floors.
4. Vacuum carpet and spot clean.
5. Remove spots from walls in eating area.
6. Dust chairs and counters.
7. Wash table tops to remove spillage.
8. Empty and wash ashtrays.
Weekly Services (One time per week)
1. Dust mop, damp mop, and spray buff tile or hard surfaced floors.
Semi Monthly (Six times per year)
1. Refinish all tile or hard surfaced floors with one (1) coat of floor
finish.
Annual Services (One time per year)
1. Strip, thoroughly rinse, apply two (2) coats of sealer and two (2) coats
of floor finish to tile or hard surfaced floors.
E-3
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EXHIBIT "F"
RULES AND REGULATIONS
This Exhibit "F" is attached to and made a part of that Agreement of Lease dated
July 1, 1996 (the "Lease"), between THE TRAVELERS INSURANCE COMPANY, a
Connecticut corporation ("Landlord"), and ACADEMIC SYSTEMS CORPORATION, a
California corporation ("Tenant"). Unless the context otherwise requires, the
terms used in this Exhibit that are defined in the Lease shall have the same
meaning as provided in the Lease.
The following rules and regulations have been formulated for the safety and
well-being of all tenants of the Building and to insure compliance with
governmental and other requirements. Strict adherence to these rules and
regulations is necessary to guarantee that each and every tenant will enjoy a
safe and undisturbed occupancy of its premises in the Building. Any continuing
violation of these rules and regulations by Tenant shall constitute a default by
Tenant under the Lease.
Landlord may, upon request of any tenant, waive the compliance by such tenant of
any of the following rules and regulations, provided that (i) no waiver shall be
effective unless signed by Landlord's authorized agent, (ii) any such waiver
shall not relieve such tenant from the obligation to comply with such rule or
regulation in the future unless otherwise agreed to by Landlord, (iii) no waiver
granted to any tenant shall relieve any other tenant from the obligation of
complying with these rules and regulations, unless such other tenant has
received a similar written waiver from Landlord, and (iv) any such waiver shall
not relieve such tenant from any liability to Landlord for any loss or damage
occasioned as a result of such tenant's failure to comply.
1. The sidewalks, entrances, passages, courts, elevators, vestibules, stairways,
corridors, roof, halls and other parts of the Building not exclusively occupied
by any tenant shall not be obstructed or encumbered by any tenant or used for
any purpose other than ingress and egress to and from each tenant's premises.
Landlord shall have the right to control and operate the public portions of the
Building, and the facilities furnished for common use of the tenants, in such
manner as Landlord deems best for the benefit of the tenants generally. No
tenant shall permit the visit to its premises of persons in such numbers or
under such conditions as to interfere with the use and enjoyment of the
entrances, corridors, elevators and other public portions or facilities of the
Building by other tenants.
2. No awnings or other projections shall be attached to the outside walls of the
Building without the prior written consent of Landlord. No drapes, blinds,
shades or screens shall be attached to or hung in, or used in connection with,
any window or door of the Premises, without the prior written consent of
Landlord. All awnings, projections, curtains, blinds, shades, screens and other
fixtures must be of a quality, type, design and color, and attached in the
manner approved by Landlord.
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54
3. No showcases or other articles shall be put in front of or affixed to any
part of the exterior of the Building or any tenant's premises, nor placed in the
halls, corridors or vestibules without the prior written consent of Landlord.
4. The water and wash closets and other plumbing fixtures shall not be used for
any purposes other than those for which they were constructed, and no debris,
rubbish, rags or other substances shall be thrown therein. All damage resulting
from any misuse of the fixtures shall be borne by the tenant who, or whose
servants, employees, agents, visitors or licensees, shall have caused the same.
5. There shall be no marking, painting, drilling into or defacement of the
Building or any part of any tenant's premises that is visible from public areas
of the Building. Tenants shall not construct, maintain, use or operate within
their respective premises any electrical device, wiring or apparatus in
connection with a loud speaker system or other sound system, except as
reasonably required as part of a communication system approved prior to the
installation thereof by Landlord. No such loud speaker or sound system shall be
constructed, maintained, used or operated outside the premises of any tenant.
6. No bicycles or vehicles and no animals, birds or pets of any kind shall be
brought into or kept in or about the Building or any tenant's premises, except
that this rule shall not prohibit the parking of bicycles or vehicles in areas
specifically designated therefor by Landlord. No cooking or heating of food
shall be done or permitted by any tenant on its premises except for food
prepared in portable microwave ovens, and coffee, tea, hot chocolate and
espresso machine-made beverages (provided that no odors are emitted). No tenant
shall cause or permit any unusual or objectionable odors to be produced upon or
permeate from its premises.
7. No space in the Building shall be used for the manufacture of goods for sale
in the ordinary course of business, or for the sale at auction of merchandise,
goods or property of any kind. Furthermore, the use of its premises by any
tenant shall not be changed without the prior approval of Landlord.
8. No tenant shall make any unseemly or disturbing noises or disturb or
interfere with the occupants of the Building or neighboring buildings or
premises or those having business with them, whether by the use of any musical
instrument, radio, talking machine, whistling, singing, or in any other way. No
tenant shall throw anything out of the doors or windows or into or down the
corridors or stairs of the Building.
9. No flammable, combustible or explosive fluid, chemical or substance shall be
brought into or kept upon the Premises.
10. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any tenant, nor shall any changes be made in any existing
locks or the locking mechanism therein, without Landlord's approval. The doors
leading to the corridors or main halls shall be kept closed during business
hours except as they may be used for ingress or egress. Each tenant shall, upon
the termination of its tenancy, restore to Landlord all keys of stores, offices,
storage and toilet rooms either furnished to, or otherwise procured by,
F-2
55
such tenant, and in the event of the loss of any keys so furnished, such tenant
shall pay to Landlord the replacement cost thereof. Tenant's key system shall be
separate from that for the rest of the Building.
11. Landlord reserves the right to inspect all freight to be brought into the
Building and to exclude from the Building all freight which violates any of
these rules and regulations of the Lease.
12. No tenant shall pay for any employees on its premises, except those actually
working for such tenant at the tenant's premises.
13. Landlord reserves the right to exclude from the Building at all times any
person who is not known or does not properly identify himself or herself to the
Building management or watchman on duty. Landlord may, at its option, require
all persons admitted to or leaving the Building between the hours of 6:00 p.m.
and 7:00 a.m., Monday through Friday, and at any hour on Saturdays, Sundays and
legal holidays, to register. Each tenant shall be responsible for all persons
for whom it authorizes entry in the Building, and shall be liable to Landlord
for all acts or omissions of such persons.
14. The Premises shall not, at any time, be used for lodging or sleeping or for
any immoral or illegal purposes.
15. Tenant assumes full responsibility for protecting the Premises from theft,
and each tenant, before closing and leaving the Premises at any time, shall see
that all doors and windows are closed and locked, and all lights turned off.
16. Landlord's employees shall not perform any work or do anything outside of
their regular duties, unless under special instruction from the management of
the Building. The requirements of tenants will be attended to only upon
application to Landlord, and any such special requirements shall be billed to
Tenant (and paid when the next installment of rent is due) in accordance with
the schedule of charges maintained by Landlord from time to time or at such
charge as is agreed upon in advance by Landlord and Tenant.
17. Canvassing, soliciting and peddling in the Building and on the Property are
prohibited and each tenant shall cooperate to prevent the same. Peddlers,
solicitors and beggars shall be reported to the Building manager or as Landlord
otherwise requests.
18. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards. Tenant shall be responsible to Landlord for any loss or damage
resulting from any deliveries made by or for Tenant to the Building.
19. Mats, trash or other objects shall not be placed in the public corridors of
the Building.
20. Landlord does not maintain suite finishes which are non-standard, such as
kitchens, bathrooms, wallpaper, special lights, etc. However, should the need
arise for repairs of
F-3
56
items not maintained by Landlord, Landlord will arrange for the work to be done
at Tenant's expense.
21. Drapes installed by Landlord for the use of Tenant or drapes installed by
Tenant, with Landlord's approval, which are visible from the exterior of the
Building, must be cleaned by Tenant at least once a year, without notice, at the
tenant's own expense.
22. The Building directory located in the Building lobby as provided by Landlord
shall be available to Tenant solely to display its name and location in the
Building, which display shall be as directed by Landlord.
23. Tenant shall not cause any unnecessary janitorial labor or services by
reason of Tenant's carelessness or indifference in the preservation of good
order and cleanliness.
24. Tenant shall not install linoleum, tile, carpet or other floor covering so
that the same shall be affixed to the floor of the Premises in any manner except
as approved by Landlord.
25. No furniture, packages, supplies, equipment or merchandise will be received
in the Building or carried up or down in the elevators, except between such
hours and in such elevators and other such other conditions as shall be
designated by Landlord.
26. Tenant shall not waste heat or air-conditioning and shall cooperate fully
with Landlord to assure the most effective operation of the Building's heating
and air- conditioning, and shall refrain from attempting to adjust any controls
other than room thermostats installed for Tenant's use.
27. Landlord shall have sole power and discretion to control the quantity, size,
location, and design of all tenant identification signage. No such signage shall
be erected without Landlord's written consent.
28. The loading dock area is exclusively reserved for authorized traffic and
Tenant shall not use same for temporary parking.
29. No eating, drinking, sleeping, or loitering shall be permitted in the lobby
areas.
30. Landlord may from time to time alter or amend these rules and regulations,
and Tenant shall comply with the amended rules and regulations.
F-4
57
EXHIBIT "G"
TENANT ESTOPPEL CERTIFICATE
TO: ____________________________________________________________________________
RE: Property Address: __________________________________________________________
Lease Date:_____________________________________________________________
Between:______________________________________________________, Landlord
and ____________________________________________________________, Tenant
Rentable Area Leased: __________________________________________________
Suite No. ______________________________________________________________
Floor:
The undersigned, Tenant under the above-referenced lease ("Lease"),
certifies to ___________________________________________________, the following:
1. The above-described Lease has not been canceled, modified, assigned,
extended or amended except as follows:
________________________________________________________________________
________________________________________________________________________
2. There is no prepaid rent, except $ _____________ and the amount of
security deposit is $ ____________.
3. We took possession of the Premises on _______________ and commenced
(or will commence) to pay Rent on __________________ in the amount of
$_________________. Rent was last paid on ____________________, 19 ____,
and has been paid through ___________________________.
4. The Lease terminates on _____________________________ and we have the
following renewal option(s)_________________________.
5. All work to be performed for us under the Lease has been performed as
required and has been accepted by us, except ___________________________
_______________________________________________________________________.
G-i
58
6. The Lease is: (a) in full force and effect; (b) free from default;
and (c) we have no claims against the Landlord or offsets against Rent.
7. The undersigned has received no notice of prior sale, transfer or
assignment, hypothecation or pledge of the Lease or of the Rent secured
therein other than to you, except, _____________________________________
8. That the Premises as let are being used for the purpose as described
in the Lease.
If we are a corporation, the undersigned is a duly appointed officer of
the corporation signing this certificate and is the incumbent in the office
indicated under (his)(her) name.
In any event, the undersigned individuals) (is) (are) duly authorized to
execute this certificate.
Dated this ______ day of ___________, 19__.
TENANT:
____________________________________
____________________________________
X-0
00
XXXXXXXX XXX-X
Building Standards for Tenant Improvement Work
CORRIDOR PARTITIONS:
1. Three and five-eighths inch (3-5/8") metal studs, 25 gauge, full height to
underside of structure above, at 24" O.C. five-eighths inch (5/8") type "X"
gypsum board, one (1) layer each side, full height both sides.
2. Sound insulation R-11 in stud cavity.
3. Partition finish - taped, mudded and sanded smooth to receive new finish.
TENANT SEPARATION PARTITION:
1. Five-eighths inch (5/8") type "X" gypsum board, one (1) layer each side of
two and onehalf inch (2-1/2") metal studs, 25 gauge, 24" O.C. floor to underside
of suspended acoustical ceiling.
2. Partition finish - taped, mudded and sanded to receive paint or
wall-covering.
3. 2-1/2" acoustical batt insulation in cavity and 4'-0" above ceiling grid on
either side of partition.
INTERIOR PARTITION:
1. Five-eighths inch (5/8") gypsum board, one (1) layer each side of studs, two
and one-half inch (2-1/2") metal studs, 25 gauge, 24" O.C. floor to underside of
suspended acoustical ceiling.
2. Height from floor slab to underside of suspended acoustical ceiling, verify
ceiling heights in field, (typically 8'-2").
3. Partition finish - taped, mudded and sanded to receive paint or
wall-covering.
PERIMETER BAY WALL XXXX-OUT:
1. Five-eighths inch (5/8") type "X" gypsum board installed on furring channels.
2. Partition finish - taped, mudded and sanded smooth to receive finish. Tape on
"L" metal at top edge.
Xxx-X-0
00
XXXXXX XXXXXXX:
1. One and five-eights inch (1-5/8") metal studs (verify height/condition).
Five-eighths inch (5/8") gypsum board, one (1) layer.
2. Partition finish - taped, mudded and sanded smooth to receive finish.
CORRIDOR DOOR:
1. 3'-0" x 7'-0"x 1-3/4" solid core door, B-3 birch veneer face (20 minute).
2. 3'-0" x 7'-0" KD - metal jambs (or equal) metal door frame (20 minute).
3. 4-1/2" x 4-1/2" hanger butt hinge, satin finish, 1-1/2 pair.
4. Schlage #L-9453-03A-612 Xxxxxx D series cylinder, satin finish.
5. L.C.N. #4013 door closer, satin finish, one (1) each.
6. Door floor stop, satin finish, one (1) each.
7. Schlage ASA series door strike, satin finish, one (1) each.
8. Door finish X-0 xxxxxxxx xxxxxxxx xxxxx.
0. Xxxxx # X-00X smoke seal.
ADD FOR DOUBLE CORRIDOR DOORS:
1. Xxxxx-Xxxxxxx Cor2 coordinator, paint to match jamb. Provide necessary block,
mount on tenant side.
2. Astragal, aluminum T-finish.
3. Xxxxx-Xxxxxxx FB8 flush bolt, satin finish.
INTERIOR DOOR:
1. 3'-0" x 7'-0" x 1-3/4" solid core door, B-3 birch veneer face (20 minute).
2. 3'-0" x 7'-0" KD or equal metal door frame, paint grade.
3. 4-1/2" x 4-1/2" Xxxxx butt hinge, satin finish, 1-1/2 pair.
One-A - 2
61
4. Schlage S-series - Saturn leverset, satin finish - US 10 Passage set.
5. Quality wall stop, satin finish.
6. Schlage ASA series door strike, satin finish, one (1) each.
ACOUSTICAL CEILING:
1. Xxxx ceiling grid. Verify series.
2. Xxxxxxxxx 704A, 2' x 2' x 3/4" ceiling tile.
3. 2' x 2' tegular type construction.
4. Ceiling heights to be verified in field.
5. Earthquake wires for lights.
6. Seismic bracing/compression posts.
*2' X 4' FLUORESCENT LIGHT FIXTURE:
1. 2' x 4' T-bar lay-in type with acrylic lens.
2. Cool white fluorescent energy saver tubes, three (3) each.
3. Installed and connected to existing junction box system.
4. Earthquake clips and wires.
*5. Coordinate with property management - on each tenant improvement.
DOWNLIGHTS:
1. Option 1: Prescolite - PBXTO-94S-277V; two (2) 13 PL- fluorescent lamps: 6"
aperture, clear alzak finish.
2. Option 2: Prescolite - PBXTO-70S-120V; 75 ER30 incandescent lamp with dimmer;
6" aperture, clear alzak finish. To be connected to sentry system ahead of
dimmer switches.
One-A-3
62
WALL WASHERS:
1. Option 1: Prescolite - CFW 613-612-277V; two (2) 00 xxxx xxxx xx-xxxxxxxxxxx
lamps: 6" aperture, clear alzak finish.
2. Option 2: Prescolite - PBXTA-74S-120V; 75W R30 adjustable lamp; (350 degrees
x 30 degrees) on dimmer; 6" aperture, clear alzak finish. To be connected to
sentry system ahead of dimmer switches.
EXIT LIGHT:
1. Lithonia - quantum series. Verify with architect.
LOW LEVEL EXIT LIGHT (AS REQUIRED):
1. Brandhurst, Inc., Series B-100-U-20-D-GN-AF, self luminous.
LIGHT SWITCH:
1. Switches: Leviton type, #277 volt rated.
2. Switches paired in double gang box to meet Title 24 requirements as required.
3. Ivory color.
4. Switch height at 44" A.F.F., to center line of switch.
ELECTRICAL WALL OUTLET:
1. Leviton #5320, S.I. (or equal, duplex receptacle, two (2) per office.
2. Ivory color.
3. Eight (8) outlets per circuit, 120V.
4. Mounted vertically.
5. Connected to existing junction box system.
6. Outlet height at 15" A.F.F. to center line of outlet.
7. Dedicated outlets: panel and circuit number to be placed on outlet cover.
Xxx-X-0
00
XXXXXXXXX XXXX OUTLET:
1. Pull wire and junction box (mud ring) only at tenant space (in wall only).
2. Cover plates and cabling by tenant's phone company. Color to match electrical
outlet plate.
3. Outlet ring height at 15" A.F.F. to center line of outlet, mounted
vertically.
4. All existing outlets and cabling to be abandoned in existing suites and to be
removed back to the source by tenant's vendor.
HEATING AND AIR CONDITIONING DISTRIBUTION:
1. Furnish and install low pressure distribution duct work.
2. Furnish and install supply air registers.
3. Furnish and install air grilles.
4. Furnish and install thermostats. All new thermostats to be Xxxxxx Xxxx,
direct acting-pneumatic.
5. All thermostats to be mounted with zip-it type/easy anchor attachment.
6. Balance system in accordance with engineered plans.
FIRE SPRINKLER HEADS:
1. Distribution from piping loop.
2. Semi-recessed chrome heads with flush mounted chrome escutcheon, star model
"E".
3. Horns/strobes - verify with property management.
4. Surface mounted fire extinguisher - verify type with property management.
FLOOR COVERING:
1. CARPET - "Xxxxxxxx," design series 3, over commercial grade pad (floors I &
2: 3/8" thick pad; floors 3 & above: 5/16' thick pad.). Carpet is provided from
the building standard color selection. Coordinate with property management.
One-A - 5
64
2. Carpet to be coved at exterior perimeter of the building induction unit
location. No base to be installed at this location only.
3. VINYL COMPOSITE TILE (VCT) - is provided from the building standard color
selection of one-eighths inch (1/8") thick "Congoleum" choices 12" x 12".
Building Standard Colors: (1) stone white, (2) light pebble beige, (3)
antique white, (4) xxxxxx, (5) light earth taupe, (6) mushroom.
4. RUBBER BASE - "Xxxxx" four inch (4") rubber base provided from the building
standard color selections. Straight out base used for carpet over pad, and
covered base used for (VCT) and glue down carpet.
PAINTING:
1. WALLS - Two (2) coats. Flat interior latex paint (on new walls) - "Xxxxx
Xxxxx", #0W27, bone, one (1) coat on existing walls.
2. DOOR TRIM - Two (2) coats, semi-gloss enamel paint (on new trims) - "Xxxxx
Xxxxx", #Q-5-18-T, Xxxxx thistle. One (1) coat on existing trims.
WINDOW COVERING:
1. One inch (1") aluminum mini-blinds - "Xxxxxx Xxxxxxx", Color: pearl, sized to
fit withimullion module.
Xxx-X-0
00
XXXXX XXXXXXXXX TO LEASE
This First Amendment to Lease ("Amendment") is dated as of December 1,
1996, and is entered into between THE TRAVELERS INSURANCE COMPANY, a Connecticut
corporation ("Landlord'), and ACADEMIC SYSTEMS CORPORATION, a corporation
("Tenant"), with reference to the following facts:
RECITALS
A. Landlord and Tenant are parties to that certain Office Building Lease
dated as of July 1, 1996, pursuant to which Tenant leases from Landlord certain
office space (the 'Existing Premises") commonly known as Suite Nos. III 1, 1 120
and 1200, consisting of a total of approximately 14,164 rentable square feet of
area in that certain office building located at 000 Xxxxxx Xxxxxx, Xxxxxxxx
Xxxx, Xxxxxxxxxx (the "Building").
B. Tenant wishes to expand the Existing Premises to include certain
additional office space.
C. Landlord is willing to lease such additional office space to Tenant.
NOW, THEREFORE, in consideration of the continued performance by Tenant
of its obligations under the Lease, and the performance by Tenant of its
obligations under this Amendment, Landlord hereby amends the Lease and otherwise
agrees with Tenant as follows:
AGREEMENT
1. Defined Terms.
a. As hereafter used in this Amendment, (i) "Existing Premises"
shall mean the Premises currently leased by Tenant under the Lease, prior to the
effectiveness of this Amendment, and (ii) "New Premises" shall mean the office
space commonly known as Suite 1106, on the eleventh (11th) floor of the
Building, to be leased by Tenant pursuant to this Amendment, as described below.
As hereafter used in this Amendment and in the Lease and all exhibits and
addenda thereto, "Premises" shall mean the Existing Premises and the New
Premises, collectively.
b. All capitalized terms in this Amendment without definition
shall have the respective meanings assigned thereto in the Lease.
2. New Premises. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord, upon the terms and conditions set forth in this Amendment,
that certain New Premises, commonly known as Suite 1106, on the eleventh (11th)
floor of the
66
Building, outlined on Exhibit "A" attached hereto, and consisting of
approximately 1387 rentable square feet.
3. Permitted Uses for New Premises: General and administrative office.
4. Lease Term for Existing Premises and New Premises. The lease term for
the New Premises shall commence on December 1, 1996 (the "New Premises
Commencement Date") and shall expire on June 30, 2001 (the "Expiration Date").
In no event shall Landlord or Tenant terminate the lease term for the Existing
Premises or the New Premises without simultaneously terminating the lease term
for the New Premises or the Existing Premises, respectively.
5. Basic Rent for Existing Premises and New Premises. All sums,
payments, costs and expenses required to be paid by Tenant to Landlord pursuant
to this Lease.
a. Minimum Annual Rent:
December 1, 1996 - June 30, 1997 $212,271.15*
July 1, 1997 - June 30, 1998 = $382,554.60**
July 1, 1998 - June 30, 1999 = $391,885.20***
July 1, 1999 - June 30, 2000 = $401,215.80****
July 1, 2000 - June 30, 2001 = $410,546.40*****
b. Monthly Rent installment:
December 1, 1996 - June 30, 1997 = $30,324.45*
July 1, 1997 - June 30, 1998 = $31,879.55**
July 1, 1998 - June 30, 1999 = $32,657.10***
July 1, 1999 - June 30, 2000 = $33,434.65****
July 1, 2000 - June 30, 2001 = $34,212.20*****
6. Percentage Share and Direct Expenses for Premises. Tenant's
percentage share for the Premises is 9%. Notwithstanding Section 6(b) of the
Lease, if, commencing on January 1, 1997, in any calendar year during the term
of the lease for the
* Based upon $1.95 per rentable square foot per month
** Based upon $2.05 per rentable square foot per month
*** Based upon $2.10 per rentable square foot per month
**** Based upon $2.15 per rentable square foot per month
***** Based upon $2.20 per rentable square foot per month
2
67
Premises, the Annual Operating Costs shall exceed the Base Annual Operating
Costs for calendar year 1996 determined in the manner set forth in Section 6 of
the Lease, Tenant shall pay as Additional Rent, in addition to and at the time
provided for payment of Annual Basic Rent for the Premises, such percentage
share of such excess.
7 . Security Deposit. Section 7 of the Lease is hereby amended to
provide that the security deposit in the amount of Twenty-Five Thousand Dollars
($25,000) shall be increased by Two-Thousand Seven-Hundred Four Dollars and
Sixty-Five Cents ($2,704.65) for a total security deposit for the Premises of
Twenty-Seven Thousand Seven-Hundred Four Dollars and Sixty-Five Cents
($27,704.65) (subject to adjustment pursuant to Section 7 of the Lease), which
shall be delivered to Landlord concurrent with the delivery to Landlord of an
executed original of this Amendment (the effectiveness of this Amendment being
expressly conditioned upon the delivery of such additional amount to Landlord).
8. Tenant Improvements. Tenant acknowledges and agrees that Tenant is
fully satisfied with the quality, design and condition of the New Premises and
the tenant improvements situated therein. The New Premises shall be delivered to
Tenant in an "as is" and "all faults" condition and Landlord shall have no
obligation whatsoever to alter, remodel, improve, repair, decorate or paint the
New Premises or any part thereof either prior or during the term of this Lease.
9. Parking Rights. Section 34 of the Lease and the reference to parking
in the Basic Lease Information shall be amended to provide that, effective as of
the date of this Amendment, Tenant's parking rights for the Premises shall
consist of two (2) additional unreserved spaces at no additional cost to Tenant.
10. Environmental. Tenant acknowledges that Landlord has informed Tenant
that the Building contains asbestos or asbestos-containing materials. At
Tenant's request, Landlord shall make available to Tenant (but without warranty)
at the Building during normal hours, copies of any inspection reports, tests or
similar documents in Landlord's possession respecting the existence and the
location of asbestos in or about the Building. To the extent such reports, tests
or other documents indicate any asbestoscontaining materials in or about the
Building, this Paragraph 10 and such documents shall constitute notice and
disclosure as required under California Health and Safety Code Sections 25359.7,
25915.5 and 25917, as applicable with respect to the presence of asbestos or
asbestos-containing materials disclosed on such documents. As required by
California Health and Safety Code Section 25259.7 and any other provisions of
State law, Landlord shall notify Tenant, and Tenant shall notify Landlord, if
either knows or has reasonable causes to believe that any release of any
hazardous substances has come to be located on or beneath the Building.
11. Brokers with Respect to New Premises. Landlord and Tenant each
represent and warrant to the other that neither Landlord nor Tenant has used a
broker other than M. H. Realty Advisors in connection with this Amendment or the
lease of the New
3
68
Premises. Landlord and Tenant shall each indemnify and hold harmless the other
from and against any and all losses, damages, liabilities, costs and expenses
(including, but not limited to, reasonable attorneys' fees and related costs)
resulting from any claims that may be asserted against the other by any other
real estate broker, finder, or intermediary claiming or purporting to claim
through Tenant, or Landlord, respectively.
12. Continuing Effectiveness of Lease.
a. Except as specifically modified by this Amendment, the Lease
and all of its terms, provisions, exhibits, and addenda shall remain in full
force and effect and shall establish and govern all aspects of Tenant's and
Landlord's respective rights, remedies, and obligations with respect to the
Existing Premises.
b. Except as specifically modified by this Amendment, the Lease
and all of its terms, provisions, exhibits, and addenda shall establish and
govern all aspects of Tenant's and Landlord's respective rights, remedies, and
obligations with respect to the New Premises.
13. Miscellaneous.
a. Complete Agreement. The Lease, as modified and amended by
this Amendment, together with all exhibits and addenda to the Lease, constitute
the complete agreement between the parties, and supersede any prior written or
oral agreements, writings, communications or understandings of the parties, with
respect to the subject matter hereof or thereof.
b. Counterparts. This Amendment may be executed in identical
counterpart copies, each of which shall be an original, but all of which taken
together shall constitute one and the same agreement.
C. Governing Law. THIS AMENDMENT SHALL IN ALL RESPECTS BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA.
IN WITNESS WHEREOF, this Amendment has been duly executed by Landlord
and Tenant as of the date first written above.
4
69
"TENANT"
ACADEMIC SYSTEMS CORPORATION
a California Corporation
By: [SIGNATURE ILLEGIBLE]
---------------------------------
Its:
-----------------------------
"LANDLORD"
THE TRAVELERS INSURANCE COMPANY,
a Connecticut corporation
By: /s/ XXX X. XXXXXX
---------------------------------
XXX X. XXXXXX
Its: VICE PRESIDENT
-----------------------------
By /s/ XXXX X. XXXXXX
---------------------------------
XXXX X. ANDREY
Its: ASSISTANT SECRETARY
-----------------------------
5
70
STATE OF CALIFORNIA )
)ss
COUNTY OF SANTA XXXXX )
On NOV 4, 1996 before me, XXXXXXX X. XXXX, Notary Public, personally
appeared: XXXX X. GOTTSMAS
[ ] personally known to me
[X] proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL] /s/ XXXXXXX X. XXXX
------------------------------------
Signature of Notary
My commission expires: Xxxxx-0-0000
XXXXX XX XXXXXXXXXX )
)ss
COUNTY OF _______________ )
On ______________________, 1995 before me,
______________________________________ , Notary Public,
personally appeared _________________________________
[ ] personally known to me
[ ] proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
(Seal)
------------------------------------
Signature of Notary
My commission expires:
------------------------------------
71
STATE OF CALIFORNIA )
)ss
COUNTY OF ___________________ )
On _____________________ 1995 before me,
______________________________________, Notary Public,
personally appeared __________________________________
___ personally known to me
___ proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
(SEAL)
------------------------------------
Signature of Notary
My commission expires:
--------------
STATE OF CALIFORNIA )
)ss
COUNTY OF _______________ )
On ______________________, 1995 before me,
______________________________________ , Notary Public,
personally appeared _________________________________
[ ] personally known to me
[ ] proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
(Seal)
------------------------------------
Signature of Notary
My commission expires:
------------------------------------
72
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Contra Costa
On 12/3/96 before me, Xxxxxxx Xxxxxx, Notary Public
------- ----------------------------------------------------------
DATE NAME, TITLE OF OFFICER-E.G., "XXXX XXX, NOTARY PUBLIC"
personally appeared XXX X. XXXXXX, XXXX X. XXXXXX
------------------------------------------------------------
NAME(S) OF SIGNER(S)
[X} personally known to me - OR - [ ] proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument
and acknowledged to me that he/she/they
executed the same in his/her/their
[SEAL] authorized capacity(ies), and that by
his/her/their signature(s) on the
instrument the person(s), or the entity
upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
/s/ XXXXXXX XXXXXX
------------------------------------------
SIGNATURE OF NOTARY
OPTIONAL
Though the data below is not required by law, it may prove valuable to
persons relying on the document and could prevent fraudulent reattachment of
this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
[ ] INDIVIDUAL
________________________________
[ ] CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT
____________________________
TITLE(S) ________________________________
NUMBER OF PAGES
[ ] PARTNER(S) [ ] LIMITED
[ ] GENERAL
________________________________
[ ] ATTORNEY-IN-FACT DATE OF DOCUMENT
[ ] TRUSTEE(S)
________________________________
[ ] GUARDIAN/CONSERVATOR SIGNER(S) OTHER THAN NAMED ABOVE
[ ] OTHER:______________________
____________________________
____________________________
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
__________________________________
__________________________________
00
XXXXXXXX XXX XXXXX
000 XXXXXX XX.
XXXXXXXX XXXX, XX
[GRAPHIC OF TENANT FLOOR]
"EXHIBIT A"
