LEASE AGREEMENT
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DATE:
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November
13, 2006
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LANDLORD:
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ADAPTEC,
INC., a Delaware corporation
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TENANT:
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TECHNOCONCEPTS,
INC., a Nevada corporation
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PREMISES:
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000 Xxxxx Xxxxxxxx Xxxx. (Xxxxxxxx 0), Xxxxxxxx, Xxxxxxxxxx 00000 |
TABLE
OF CONTENTS
Paragraph
Page
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1.
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Fundamental
Lease Provisions
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3
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2.
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Premises
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4
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3.
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Use
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5
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4.
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Rent
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6
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5.
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Term
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8
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6.
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Possession
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8
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7.
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Common
Areas
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8
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8.
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Parking
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9
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9.
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Expenses
of Operation and Maintenance of the Complex
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9
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10.
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Acceptance
and Surrender of Premises
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10
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11.
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Alterations
and Additions
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10
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12.
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Maintenance
and Repair of the Premises
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11
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13.
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Utility
and Other Services Provided by Xxxxxxxx
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00
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00.
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Xxxxxxxx/Xxxxxx
Xxxx
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00
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00.
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Taxes
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13
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16.
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Tenant's
Insurance
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14
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17.
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Casualty
Insurance; Waiver of Subrogation
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14
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18.
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Indemnification;
Exemption of Landlord from Liability
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15
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19.
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Compliance
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15
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20.
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Liens
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16
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21.
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Assignment
and Subletting
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16
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22.
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Subordination
and Mortgages
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17
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23.
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Entry
by Landlord
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17
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24.
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Tenant's
Default
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17
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25.
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Landlord’s
Remedies and Rights
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18
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26.
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Destruction
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19
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27.
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Eminent
Domain
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19
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28.
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Sale
or Conveyance by Landlord
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20
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29.
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Attornment
to Lender or Third Party
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20
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30.
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Holding
Over
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20
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31.
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Certificate
of Estoppel
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20
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32.
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Construction
Changes
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21
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33.
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Right
of Landlord to Perform
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21
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34.
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Attorney's
Fees
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21
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35.
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Waiver
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21
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36.
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Notices
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21
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37.
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Examination
of Lease
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22
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38.
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Default
by Landlord
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22
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39.
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Authority
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22
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40.
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Limitation
of Liability
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22
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41.
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Brokers
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22
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42.
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Signs
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22
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43.
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Hazardous
Materials
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23
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44.
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Interest
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24
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45.
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Furniture
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24
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46.
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Miscellaneous
and General Provisions
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24
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Page 1
of 32 -
Addenda
and Exhibits
Exhibit
A
-- Floor Plan of the Building
Exhibit
B
-- Tenant Improvement Space Plan / Furniture Layout
Exhibit
C
-- Commencement Date Memorandum
Exhibit
D
-- Rules & Regulations
Exhibit
E
-- Site Plan of the Complex
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Page 2
of 32 -
FULL
SERVICE GROSS
DATED:
NOVEMBER 13, 2006
LANDLORD: ADAPTEC,
INC., a Delaware corporation
TENANT:
TECHNOCONCEPTS, INC., a Nevada corporation
1. FUNDAMENTAL
LEASE
PROVISIONS.
A. PREMISES:
Approximately 6,709 square feet of leasable area in the building, commonly
referred to as Suite 100 (5,460 rentable square feet) and the adjacent “Lab
Space” (1,249 rentable square feet) and shown on the site plan attached as
Exhibit
A
(the
“Premises”), which building (“Building”) contains approximately 44,928 leasable
square feet. The Building is located on a parcel of land in the County of
Alameda, State of California, with a common address of 000 Xxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000. The Building is located within a complex
that consists of multiple buildings, together with related driveways, parking
areas, and related fixtures and improvements (the “Complex”). A site plan of the
Complex is attached hereto as Exhibit
E.
B. LEASE
TERM: The period commencing on the Commencement Date (as defined in Paragraph
1.C) and expiring twenty-five (25) months thereafter. (Paragraph 5)
C. COMMENCEMENT
DATE: November 1, 2006 (Paragraphs 4.A and 5, Exhibit C)
D. BASIC
RENT: (Paragraph 4.A):
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Months
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Basic
Rent/RSF/Month
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Basic
Rent/Total/Month
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1
-
13
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$0.5915
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$3,968.69
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14
- 25
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$0.7156
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$4,800.89
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E. OPERATING
EXPENSES: Operating Expenses for the Premises are currently estimated at
$0.34/RSF/month, but shall be subject to annual reconciliation in accordance
with Paragraph 9. (Paragraphs 4.E and 9)
F. UTILITY
COSTS. Utility Costs for the Premises are currently estimated at $0.20/RSF/mo,
which amounts shall be reconciled annually to actual expenditures by Landlord
in
accordance with Paragraph 13. (Paragraphs 4.E and 13)
G. ADDITIONAL
RENT: Estimated Utility
Costs and Operating Expenses, plus costs and expenses under Paragraphs 12,
13,
14, 15 and 16 and elsewhere in this Lease. (Paragraph 4.E)
H. TENANT'S
SHARE: Fourteen and Ninety-three one hundredths percent (14.93%) (Paragraph
4.E)
I. PREPAID
RENT: $7,591.23 for the first month of the Lease Term (an amount equal to One
(1) month’s Basic Rent, plus one (1) month’s Estimated Operating Expenses).
(Paragraph 4.H)
J. BASIC
RENT ADJUSTMENT: N/A. (Paragraph 4.B)
K. SECURITY
DEPOSIT: $8,423.82 (an amount equal to last month’s Basic Rent, plus one (1)
month’s Estimated Operating Expenses) (Paragraph 4.G)
L. PERMITTED
USE: general office use, research and development, lab testing of electronic
devices, and all legally related uses. (Paragraph 3)
M. NUMBER
OF
PARKING SPACES: 3.5:1000 in common with other Complex occupants.
(Paragraph 8)
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Page 3
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N. ADDRESSES
FOR NOTICES AND PAYMENT OF RENT (Paragraphs 4.F and 36):
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To
Landlord:
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Adaptec,
Inc.
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000
Xxxxx Xxxxxxxx Xxxxxxxxx, XX 00
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Xxxxxxxx,
XX 00000
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Attn:
Xxxxxx X. Xxxxxx
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Fax:
(000) 000-0000
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With
Copy to:
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Silicon
Valley Law Group
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00
Xxxxx Xxxxx, Xxxxx 000
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Xxx
Xxxx, XX 00000
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Attn:
Xxxx Xxxxxxxxxx
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Fax:
(000) 000-0000
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To
Tenant:
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00000
Xxxxxxx Xxxx, Xxxxx 000
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|||
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Xxxxxxx
Xxxx, XX 00000
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Attn:
Chief Financial Officer
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Fax:
(000) 000-0000
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| M. |
TENANT'S
BROKER: N/A. (Paragraph 41)
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LANDLORD’S
BROKER: N/A. (Paragraph 41)
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N.
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ADDENDA
AND EXHIBITS: The following addenda and exhibits are added hereto
and
included as part of this Lease:
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Exhibit
A
-- Floor Plan of the Building
Exhibit
B
-- Tenant Improvement Space Plan / Furniture Layout
Exhibit
C
-- Commencement Date Memorandum
Exhibit
D
-- Rules & Regulations
Exhibit
E
-- Site Plan of the Complex
Each
reference in this Lease to any of the provisions in this Paragraph 1 shall
be
construed to incorporate all of the terms of each such provision. In the event
of any conflict between this Paragraph 1 and the balance of the Lease, the
balance of the Lease shall control.
2. PREMISES.
A. Premises.
Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord for the Lease
Term, at the Rent and upon the terms and conditions hereinafter set forth,
that
certain space ("Premises") within the Building as described in Paragraph 1.A.
Said letting and hiring is upon and subject to the terms, covenants and
conditions hereinafter set forth, and Tenant covenants as a material part of
the
consideration for this Lease to perform and observe each and all of said terms,
covenants and conditions. This Lease is made upon the condition of such
performance and observance.
B. Improvements.
Landlord
agrees, at Landlord’s sole cost and expense, to provide for the design,
construction drawings, all necessary permits and approvals, and alterations
to
demise the Lab Space as reflected on the space plan attached as Exhibit
B hereto
and incorporated by reference, including:
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(1)
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the
addition of one door with keyed entry from the corridor to access
the lab
room;
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(2)
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physical
separation of rooms to create individual lab
spaces;
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(3)
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installation
of one interior access door with keyed entry from the window line
storage
space into the storage space adjacent to
it;
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(3)
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provide
data physical connectivity (but no services) from the demark to the
Premises; Tenant shall be required to contract and pay for "hook-up
and
services" to the Premises. Landlord shall make available up to 8
pairs of
existing cabling to Tenant for the Premises that runs from the Building
1
demark to the Room 1146 and then to the Premises (for data) and up
to 8
pairs of existing phone connections from Room 1146 to existing telephone
punch down Room 1152. Tenant acknowledges that Room Nos. 1146 and
1152 are
supported by house air conditioning only and there is no 24 X 7 air
conditioning to these rooms. Any additional cabling or re-routing
of
existing cabling shall be done by Tenant and all costs associated
with
same shall be borne by Tenant;
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Page 4
of 32 -
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(4)
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re-ducting
of the existing 5 ton A/C unit to act as ancillary support to the
Lab
Space. The Tenant Improvements shall be constructed by Landlord in
a good
workmanlike manner, and in compliance with all laws, rules, regulations,
permit requirements, codes and ordinances. The Tenant Improvements
shall
be deemed substantially complete when Landlord notifies Tenant in
writing
that the Tenant Improvements (if any) are substantially completed
in
accordance with Exhibit
B,
subject only to "punch list" items that do not materially diminish
the
usefulness of the Premises. Landlord shall have no obligation to
make any
improvement or alteration to the Premises except as specifically
and
expressly agreed to in writing by Landlord, and all other improvements
or
alterations required by Tenant for Tenant’s use and occupancy of the
Premises (including without limitation the installation of satellite
dishes on the roof of the Building) shall be Tenant’s sole responsibility
at Tenant’s sole cost, in accordance with Paragraph 11 and other
applicable provisions of this Lease; and
|
| (5) | removal of the cubical furniture located in Room 1110. |
C. Square
Footage.
Landlord
and Tenant conclusively agree that the statements of rentable square footage
contained herein shall be deemed to be correct and binding upon the parties
for
all purposes under this Lease, even if subsequent measurements determine that
one or more of such figures is incorrect. Notwithstanding the foregoing, Tenant
may, at Tenant’s sole cost and expense, cause the Premises to be remeasured by
an architect and if the actual square footage of the Premises differs from
the
square footage set forth herein by greater than five (5%) percent, Landlord
and
Tenant shall adjust the Rent accordingly. If, pursuant to the foregoing
sentence, no adjustment of Rent is made on or before the thirtieth (30th) day
after the Commencement Date, Tenant waives its right to such an
adjustment.
3. USE.
A. Limitations
on Use. Tenant
shall obtain any necessary permits and/or variances, at Tenant’s sole cost and
expense. To Landlord’s Knowledge (as defined in Paragraph 46.K), as of the
Commencement Date, the Premises and the Building meet all applicable codes
for
operation of the Building and contemplated use of the Premises as office space,
including zoning, life safety, O.S.H.A. and Americans With Disabilities Act
of
1990 (the "ADA"). Tenant shall use the Premises only in conformance with
applicable governmental laws, regulations, rules and ordinances, including
without limitation the ADA, and solely for the purpose specified in Paragraph
1.L and for no other purpose without the prior written consent of Landlord,
which consent may be withheld and/or conditioned by Landlord in its sole and
absolute discretion. Notwithstanding the previous sentence, nothing in this
Lease Agreement shall be construed, and Tenant shall not be required, to pay
the
costs of any alterations or upgrades to the Building required under the ADA
or
equivalent state statutes (collectively, “ADA Improvements”), except to the
extent that such ADA Improvements are “triggered” by (i) Tenant’s specific or
unique use or occupancy of the Premises; or (ii) Tenant’s application for a
building permit or any other governmental approval, in which event such ADA
Improvements will be completed by Tenant at Tenant’s sole cost and expense.
Except as provided by the preceding sentence, all such alterations or upgrades
shall be preformed by the Landlord at the Landlord’s sole cost and expense, with
the result that Tenant’s quiet enjoyment of the premises shall not be
interrupted. Tenant shall not do or permit its employees, agents, contractors
and invitees (the “Tenant’s Related Parties”) to do in or about the Premises or
the Complex nor bring or keep or permit Tenant’s Related Parties to bring or
keep in or about the Premises or the Complex anything which is prohibited by
or
will in any way increase the existing rate of (or otherwise affect) fire or
any
insurance covering the Premises or the Complex or any part thereof, or any
of
its contents, or will cause a cancellation of any insurance covering the
Premises or the Complex or any part thereof, or any of its contents. Tenant
shall not do or permit Tenant’s Related Parties to do anything in, on or about
the Premises or the Complex which will in any way obstruct or interfere with
the
rights of other tenants or occupants of the Complex or injure or annoy them,
or
use or allow the Premises or Complex to be used for any improper, immoral,
unlawful or objectionable purpose, nor shall Tenant cause, maintain or permit
any nuisance in, on or about the Premises or the Complex. Tenant shall not
operate any equipment within the Premises which will (i) materially damage
the
Building or the Common Area, (ii) overload existing electrical systems or other
mechanical equipment servicing the Building, (iii) impair the efficient
operation of the sprinkler system or the heating ventilating or air conditioning
(“HVAC”) equipment within or servicing the Building, or (iv) damage, overload or
corrode the sanitary sewer system. Any dust, fumes, or waste products generated
by Tenant’s use of the Premises shall be contained and disposed so that they do
not (i) create an unreasonable fire or health hazard, (ii) damage the Premises,
or (iii) result in the violation of any Laws. No sale by auction shall be
permitted on the Premises or in the Complex of any kind, including, without
limitation, any public or private auction, fire sale, going-out-of-business
sale, distress sale or other liquidation sale. Tenant shall not place any loads
upon the floors, walls, or ceiling, which endanger the structure, or place
any
harmful fluids or other materials in the drainage system of the Building
therein, or overload existing electrical or other mechanical
systems.
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Page 5
of 32 -
B. Outside
Areas. No
waste
materials or refuse shall be dumped upon or permitted to remain upon any part
of
the Premises or outside of the Premises, except in trash containers placed
inside exterior enclosures designated by Landlord for that purpose or inside
of
the Building proper where designated by Landlord. No materials, supplies,
equipment, finished products or semi-finished products, raw materials or
articles of any nature shall be stored upon or permitted to remain outside
the
Premises. No loudspeaker or other device, system or apparatus which can be
heard
outside the Premises shall be used in or at the Premises without the prior
written consent of Landlord. Tenant shall not commit or suffer to be committed
any waste in or upon the Premises.
C. Compliance
with Rules and Regulations. Tenant
shall comply with any covenants, conditions, or restrictions ("CC&R's")
affecting the Premises, as the same may hereafter be amended from time to time,
as well as the rules and regulations promulgated by Landlord (the "Rules and
Regulations"), a copy of such Rules and Regulation is attached as Exhibit
D.
Landlord reserves the right to reasonably amend such Rules and Regulations
from
time to time as Landlord may deem appropriate, which amendment shall be binding
upon Tenant upon delivery of a copy thereof to Tenant, provided that in the
event of a conflict between this Lease and the Rules and Regulations, this
Lease
shall prevail. Tenant shall use reasonable efforts to cause Tenant’s Related
Parties to cooperate in observance of such Rules and Regulations, as the same
may be amended from time to time. The provisions of this Paragraph are for
the
benefit of Landlord only and shall not be construed to be for the benefit of
any
tenant or occupant of the Complex. Landlord shall not be responsible for the
violation by any other tenant or occupant of the Complex of the Rules and
Regulations.
4. RENT
A. Basic
Rent. Tenant
agrees to pay to Landlord the sum set forth in Paragraph 1.D hereof as "Basic
Rent", in lawful money of the United States of America, without deduction,
offset, prior notice, or demand, on the first day of every calendar month of
the
Lease Term, and Landlord agrees to accept such sum as Basic Rent for the
Premises.
B. Prepaid
Rent.
Concurrently with Tenant's execution of this Lease, Tenant shall pay to Landlord
the sum specified in Paragraph 1.I as prepaid Rent for the months designated
therein.
C. Partial
Months. In
the event that the Lease Term commences on a date other than the first day
of a
calendar month, on the Commencement Date Tenant shall pay to Landlord as Basic
Rent for the period from such Commencement Date to the first day of the first
full calendar month that proportion of the monthly Basic Rent hereunder which
the number of days between such Commencement Date and the first day of the
next
succeeding calendar month bears to thirty (30), and such partial first month
shall not be counted when computing the number of months in the term of this
Lease. In the event that the Lease Term is terminated for any reason on a date
other than the last day of a calendar month, on the first day of the last
calendar month of the Lease Term Tenant shall pay to Landlord as Basic Rent
for
the period from said first day of said last calendar month to and including
the
last day of the Lease Term that proportion of the monthly Basic Rent hereunder
which the number of days between said first day of said last calendar month
and
the last day of the term hereof bears to thirty (30).
D. Late
Charge. Tenant
acknowledges that late payment by Tenant to Landlord of Rent (as defined below)
under this Lease will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of which is extremely difficult or impracticable to
determine. Notwithstanding any other provision of this Lease, if Tenant is
delinquent in the payment of Rent as set forth in this Paragraph 4, or any
part
thereof, Tenant agrees to pay Landlord, in addition to the delinquent Rent
due,
a late charge for each Rent payment which is not received by Landlord within
ten
(10) days after due date for such payment, it being understood that postmarking
a payment by such deadline shall not be sufficient to meet this requirement.
Said late charge shall be ten percent (10%) of the delinquent Rent
payment.
E. Additional
Rent.
Beginning with the Commencement Date, Tenant shall pay to Landlord in addition
to the Basic Rent and as Additional Rent the following additional
amounts:
| (1) |
Operating
Expenses in the amounts set forth in Paragraphs 1.E and 9, and
|
| (2) |
Utility
Costs in the amounts set forth in Paragraphs 1.F and 13, and
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Page 6
of 32 -
(3) All
charges, costs and expenses that Tenant is required to pay under this Lease,
together with all interest and penalties, costs and expenses including without
limitation attorneys' fees and legal expenses, that may accrue thereto in the
event of Tenant's failure to pay such amounts, and all damages, reasonable
costs
and expenses which Landlord may incur by reason of default of Tenant or failure
on Tenant's part to comply with the terms of this Lease. In the event of
nonpayment by Tenant of Additional Rent, Landlord shall have all the rights
and
remedies with respect thereto as Landlord has for nonpayment of Basic Rent.
The
Additional Rent due hereunder shall be paid to Landlord or Landlord's agent,
at
the option of Landlord, directly to the designated recipient thereof, as and
when such amounts are due, in accordance with statements or invoices presented
to Tenant. The obligations of Tenant under this Paragraph shall survive the
expiration or other termination of this Lease.
In
the
event of nonpayment by Tenant of Additional Rent, Landlord shall have all the
rights and remedies with respect thereto as Landlord has for nonpayment of
Basic
Rent. The Additional Rent due hereunder shall be paid to Landlord or Landlord's
agent, at the option of Landlord, directly to the designated recipient thereof,
as and when such amounts are due, in accordance with statements or invoices
presented to Tenant. The obligations of Tenant under this Paragraph shall
survive the expiration or other termination of this Lease.
F. Place
of Payment of Rent.
All
Basic Rent hereunder and all payments hereunder for Additional Rent shall be
paid to Landlord at the address of Landlord as specified in Paragraph 1.N or
such other place as Landlord may from time to time designate in writing. It
shall be Tenant’s responsibility to ensure that all Rent payments are mailed or
sent in time for Landlord to receive them by the specified deadline, and
Landlord shall not be responsible for any delays in delivery of payments by
mail
or otherwise.
G. Security
Deposit.
Concurrently with the execution of this Lease, Tenant shall deposit with
Landlord the sum specified in Paragraph 1.K hereof, as security for the
performance by Tenant of its obligations under this Lease, and not as prepayment
of rent (the "Security Deposit"). Landlord may from time to time apply such
portion of the Security Deposit as is necessary for the following purposes.
(i)
to remedy any default by Tenant in the payment of Rent; (ii) to repair damage
to
the Premises caused by Tenant; (iii) to clean the Premises upon the expiration
or sooner termination of the Lease; and/or (iv) to remedy any other default
of
Tenant to the extent permitted by Law, including, without limitation, on account
of damages owing to Landlord under Section 25, and, in this regard, Tenant
hereby waives any restriction on the uses to which the Security Deposit may
be
put contained in California Civil Code Section 1950.7. In the event the Security
Deposit or any portion thereof is so used, Tenant agrees to pay to Landlord
promptly upon demand an amount in cash sufficient to restore the Security
Deposit to the full original amount. Landlord shall not be deemed a trustee
of
the Security Deposit, may use the Security Deposit in business, and shall not
be
required to segregate it from its general accounts. Tenant shall not be entitled
to any interest on the Security Deposit. If Landlord transfers the Premises
during the Lease Term, Landlord may pay the Security Deposit to any transferee
of Landlord's interest in conformity with the provisions of California Civil
Code Section 1950.7 and/or any successor statute, in which event the
transferring Landlord will be released from all liability for the return of
the
Security Deposit. If Tenant performs every provision of this Lease to be
performed by Tenant, the unused portion of the Security Deposit shall be
returned to Tenant (or the last assignee of Tenant's interest under this Lease)
within thirty (30) days following the expiration or sooner termination of this
Lease and the surrender of the Premises by Tenant to Landlord in accordance
with
the terms of this Lease; provided, however, if this Lease is terminated
following an Event of Default, the unpaid portion of the Security Deposit,
if
any, shall be returned to Tenant two (2) weeks after final determination of
all
damages due Landlord, and, in this respect, the provisions of California Civil
Code Section 1950.7 are hereby waived by Tenant.
H. Prepaid
Rent. Concurrently
with Tenant's execution of this Lease, Tenant shall pay to Landlord the sum
specified in Paragraph 1.I as prepaid Rent for the months designated
therein.
I. Definition
of Rent.
The term
"Rent" as used in this Lease shall mean Basic Rent, Additional Rent, and any
and
all other sums, however designated, required to be paid by Tenant under this
Lease, whether payable to Landlord or third parties.
J. Additional
Rights of Landlord.
In
addition to any late payment or interest charges payable to Landlord hereunder
and any other rights or remedies that Landlord may have under this Lease or
applicable law, all of which rights and remedies shall be cumulative, Tenant,
as
a material part of the consideration for this Lease, hereby agrees as
follows:
(1) If
Tenant
makes any payment under this Lease by check and such check is dishonored or
otherwise returned unpaid to Landlord due to insufficient funds, then Landlord,
at its option, may require Tenant to make all future payments under this Lease
by cashier's check or wire transfer in accordance with wiring instructions
given
to Tenant by Landlord.
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Page 7
of 32 -
(2) If
Landlord fails to receive any payment that Tenant is required to make under
this
Lease when due and Landlord thereafter, and prior to receiving such payment,
proceeds to serve a "3-Day Notice" or similar notice to Tenant as permitted
under Section 1162 of the California Code of Civil Procedure, then in each
such
instance, and regardless of whether Tenant thereafter makes such payment, Tenant
shall pay to Landlord, upon demand, as Additional Rent, an administrative charge
in the amount of $250. Tenant acknowledges that such charge constitutes
liquidated damages and not a penalty and represents a reasonable estimate of
the
additional administrative costs that Landlord will incur in serving such
notice.
(3) If
Landlord fails to receive any payment that Tenant is required to make under
this
Lease within ten (10) days after the due date for such payment, and such
delinquency occurs on three (3) separate occasions, then Landlord, at its
election, exercisable by one or more written notices to Tenant at any time
after
the third such delinquency, may require any or all of the following: (i) that
all future payments of Basic Rent be paid three (3) months in advance; and
(ii)
that the Security Deposit specified in Paragraph 1.K be immediately increased
by
one hundred percent (100%), in which event Tenant shall, within ten (10) days
after written demand therefor, deposit such additional amount in cash with
Landlord.
5. TERM. The
term
of this Lease (the “Lease Term”) shall be for the period of time specified in
Paragraph 1.B (unless sooner terminated as provided for in this Lease) and
shall
commence on the commencement date ("Commencement Date") described in Paragraph
1.C. Within 10 days following the Commencement Date, Tenant will execute and
deliver to Landlord a certificate substantially in the form of Exhibit
C.
6. POSSESSION. If
for
any reason Landlord cannot deliver possession of the Premises to Tenant on
or
before December 1, 2006 (“Possession Date”), Landlord shall not be subject to
any liability therefore, nor shall Landlord or Landlord’s agents be liable to
Tenant for any loss or damage resulting therefrom, and such failure shall not
affect the validity of this Lease or the obligations of Tenant hereunder, but,
in such case, Tenant shall not be obligated to pay Basic Rent or Additional
Rent
until the possession of the Premises has been delivered. Notwithstanding the
foregoing, the period of delay shall not exceed 45 days from the Possession
Date
(except those delays caused by Acts of God, strikes, war, governmental bodies,
and weather shall be excluded in calculating such period), in which instance
Tenant, at its option, may, by written notice to Landlord within ten (10) days
after the end of the 45-day period, terminate this Lease and the parties shall
have no further liability thereafter accruing under this Lease after Landlord
has returned the Prepaid Rent and Security Deposit (subject to Landlord’s rights
under Paragraph 4.G) to Tenant.
7. COMMON
AREAS.
A. Use.
Subject
to the terms and conditions of this Lease and any Rules and Regulations, Tenant
shall have the non-exclusive right in common with other occupants of the
Building and/or Complex, to use the access roads, parking areas, and facilities
provided and designated by Landlord for the general use and convenience of
the
occupants of the Building and/or the Complex, which areas and facilities are
referred to herein as "Common Areas". This right shall terminate upon the
termination of this Lease. Tenant shall be entitled to utilize oil change
facilities, ATM machines, dry cleaning services, film developing and other
concierge services, all on a pay as you go basis, so long as the same services
continue to be offered to Landlord’s employees and Tenant has access to the
areas in the Complex where such services are offered. Any rights to use other
amenities including the fitness equipment and cafeteria will be detailed under
a
separate license agreement.
B. Control
by Landlord.
Landlord
shall at all times have exclusive control of the Common Areas. Landlord shall
have the right, exercisable in its sole and absolute discretion and without
the
same constituting an actual or constructive eviction and without entitling
Tenant to any abatement of Rent, to: (i) temporarily close the Common Areas
to perform necessary maintenance; (ii) change the shape, size, location and
extent of the Common Areas; (iii) make changes to the Common Areas, including,
without limitation, changes in the location of driveways, entrances,
passageways, doors and doorways, elevators, stairs, restrooms, exits, parking
spaces, parking areas or sidewalks; or (iv) remove unauthorized persons
from the Complex. Tenant shall keep the Common Areas clear of all obstructions
created or permitted by Tenant. In exercising any such rights regarding the
Common Areas, (i) Landlord shall make a reasonable effort to minimize any
disruption to Tenant’s business, and (ii) Landlord shall not exercise its rights
to control the Common Areas in a manner that would materially interfere with
Tenant’s use of the Premises without first obtaining Tenant’s consent, which
consent shall not be unreasonably withheld, conditioned or delayed.
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Page 8
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C. Services
Room.
Tenant
is informed and acknowledges that the telephone and computer services to the
Premises (by way of cables from the existing Furniture) are cabled to a services
room within the Common Area of the Building (the “Services Room”) referred to as
Room Nos. 1146, 1152 and 1254. Pursuant to the terms of Subparagraph 13.C (Other
Services), Tenant shall have the right to install its telecommunications
equipment in the Services Room. Since all tenants of the Building shall have
the
right to install equipment in the Services Room, access to the Services Room
shall be granted to Tenant by phoning the Facilities Hotline (during business
hours) or on-site security personnel (after normal business hours) or any other
reasonable notification procedure established by Landlord to grant such
access.
8. PARKING. Subject
to the terms and conditions of this Lease and subject to the Rules and
Regulations, Tenant shall have the non-exclusive right, in common with other
tenants or occupants of the Complex, to use the common parking areas of the
Complex. Neither Tenant nor Tenant's employees, agents, representatives and/or
invitees shall use parking spaces in excess of said number of spaces allocated
to Tenant hereunder. Landlord shall have the right (but not the obligation),
at
Landlord's sole discretion, to designate the specific location of Tenant's
parking spaces within the common parking areas of the Complex. Landlord shall
also have the right to implement a system of parking charges, vouchers, fines
or
other parking control fees to be paid by Tenant and/or the users of the Complex,
if so required by any governmental agency having jurisdiction over the Complex
or if required to meet parking programs mandated by government.
Tenant
shall not, at any time, park, or permit to be parked, any trucks or vehicles
adjacent to the loading areas so as to interfere in any way with the use of
such
areas, nor shall Tenant at any time park, or permit the parking of Tenant's
trucks or other vehicles or the trucks and vehicles of Tenant's suppliers or
others, in any portion of the common area not designated by Landlord for such
use by Tenant. Tenant shall not park nor permit to be parked, any inoperative
vehicles or equipment on any portion of the parking area or outside areas of
the
Complex, or use the same for storage. Tenant agrees to assume responsibility
for
compliance by its employees with the parking provisions contained herein.
Tenant
hereby authorizes Landlord at Tenant's sole expense to tow away from the Complex
any vehicle belonging to Tenant or Tenant's employees parked in violation of
these provisions, or to attach violation stickers or notices to such vehicles
and levy fines for such violations. Landlord shall have no obligation to Tenant
to police the parking areas or enforce any private or public parking
restrictions, which enforcement shall be at Landlord's sole and absolute
discretion.
9. EXPENSES
OF OPERATION AND MAINTENANCE OF THE COMPLEX.
As
Additional Rent and in accordance with Paragraph 4.E., Tenant shall pay to
Landlord the amounts set forth in Paragraph 1.E as the estimated cost of
Tenant's Share of all expenses of operation, management, maintenance and repair
of the Building (including Common Areas of the Building) and of the exterior
Common Areas (collectively,
the “Operating Expenses”). Without limiting the generality of the foregoing,
Operating Expenses shall include, but not be limited to, exterior landscape,
common utilities including water, sewer, gas and electricity, common trash
services, pest control, security support and badge programming and property
management, repair and maintenance of the security hardware, repair and
maintenance of the parking areas, repair, maintenance and replacement of roof
and roof membrane, foundation, exterior walls and other building structural
components, exterior glass and windows, fire protection, fire sprinkler systems
and fire extinguishers, interior and exterior doors, plumbing systems, drainage
systems, electrical systems, ballast and lamp replacement, and mechanical and
HVAC systems (excluding Supplemental HVAC, as described in Paragraph 12). HVAC
shall be supplied to the Premises between the hours of 7 AM and 6 PM, Monday
through Friday, and 9 AM to 1 PM on Saturday, excluding national holidays.
Annually, Landlord shall reconcile the actual Operating Expenses as compared
to
the estimated payments made throughout the preceding calendar year. There shall
be an adjustment between Landlord and Tenant for any over or under payment
of
such Operating Expenses for the preceding calendar year, with payment to
Landlord or credit to Tenant against the next installment of Rent (or refund
following the expiration of the Lease Term), as the case may require, within
ten (10) days after Landlord’s delivery of such reconciliation to
Tenant.
Detail
of
estimated Operating Expenses as of the date of this Lease is as
follows:
[REMAINDER
OF PAGE INTENTIONALLY BLANK]
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Page 9
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|
Item:
|
Estimate
for Operating Expenses
(Cost/rsf/mo)
|
|
Real
Estate Taxes
|
$0.150
|
|
Insurance
|
$0.025
|
|
CAM
(exterior)
|
$0.010
|
|
Furniture
|
$0.000
|
|
Management
Fee
|
$0.025
|
|
Concierge/Fitness
Center
|
$0.000
|
|
Roof/HVAC
maintenance
|
$0.060
|
|
Plumbing/light
bulbs/ballasts
|
$0.020
|
|
Security
|
$0.010
|
|
Janitorial/Waste
Pick-Up
|
$0.040
|
|
Total
|
$0.340
|
10. ACCEPTANCE
AND SURRENDER OF PREMISES. Landlord
shall deliver the Premises to Tenant with the plumbing, electrical and
mechanical systems in good working order and repair. Subject to Paragraphs
26
(Destruction) and 27 (Eminent Domain), Tenant agrees on the last day of the
Lease Term, or on the sooner termination of this Lease, to surrender the
Premises promptly and peaceably to Landlord in good condition and repair (normal
wear and tear excepted), with all interior walls painted, or cleaned so that
they appear freshly painted, and repaired and replaced, if damaged; all floors
cleaned and waxed; all carpets cleaned and shampooed together with all
alterations, additions, and improvements which may have been made in, to, or
on
the Premises (except movable trade fixtures installed at the expense of Tenant);
provided, however, that Tenant shall ascertain from Landlord within thirty
(30)
days before the end of the Lease Term whether Landlord desires to have the
Premises or any part or parts thereof restored to their condition and
configuration as when the Premises were delivered to Tenant and if Landlord
shall so desire, then Tenant shall restore said Premises or such part or parts
thereof before the end of this Lease at Tenant's sole cost and expense. Tenant,
on or before the end of the Lease Term or sooner termination of this Lease,
shall remove all of Tenant's personal property and trade fixtures from the
Premises, and all property not so removed on or before the end of the Lease
Term
or sooner termination of this Lease shall be deemed abandoned by Tenant and
title to same shall thereupon pass to Landlord without compensation to Tenant.
Landlord may, upon termination of this Lease, remove all moveable furniture
and
equipment so abandoned by Tenant, at Tenant's sole cost, and repair any damage
caused by such removal at Tenant's sole cost. If the Premises are not
surrendered at the end of the term or sooner termination of this Lease, Tenant
shall indemnify Landlord against loss or liability resulting from the delay
by
Tenant in so surrendering the Premises including, without limitation,
consequential damages to Landlord caused, in whole or in part, by such delay.
Nothing contained herein shall be construed as an extension of the term hereof
or as a consent of Landlord to any holding over by Tenant. The voluntary or
other surrender of this Lease or the Premises by Tenant or a mutual cancellation
of this Lease shall not work as a merger and, at the option of Landlord, shall
either terminate all or any existing subleases or operate as an assignment
to
Landlord of all or any such subleases.
11. ALTERATIONS
AND ADDITIONS.
Tenant
shall not make, or suffer to be made, any alteration or addition to the Premises
or the Building, or any part thereof, or make any installations (of satellite
dishes or other equipment or fixtures) on the roof or other exterior portions
of
the Building, without the prior written consent of Landlord. All work with
respect to any alteration, addition or exterior installation shall be done
in a
good and workmanlike manner, shall be under the supervision of a competent
architect or competent licensed structural engineer approved by Landlord, and
shall be made in accordance with all applicable laws, ordinances, codes and
regulations related thereto and the plans and specifications with respect
thereto shall be approved in writing by Landlord before commencement of work.
Landlord's approval of Tenant's plans and specification shall create no
responsibility or liability on the part of Landlord for their completeness,
design sufficiency or compliance with governmental laws, rules or
regulations.
Tenant
agrees that it will not proceed to make such alterations, additions or
installations without having obtained consent from Landlord to do so, and until
ten (10) days after the receipt of such consent, in order that Landlord may
post
appropriate notices to avoid any liability to contractors or material suppliers
for payment for Tenant's improvements. Tenant will at all times permit such
notices to be posted and to remain posted until the completion of work. Tenant
further covenants and agrees that any mechanic's lien filed against the Premises
or against the Complex for work claimed to have been done for, or materials
claimed to have been furnished to, Tenant will be discharged by Tenant, by
bond
or otherwise, within ten (10) days after the imposition thereof, at the cost
and
expense of Tenant. Any exceptions to the foregoing must be made in writing
and
executed by both Landlord and Tenant. Upon completion of the work, Tenant shall
file a Notice of Completion as permitted by law in the Office of the County
Recorder where the Premises is located.
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Page 10
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Any
addition to, or alteration of, the Premises, except moveable equipment and
trade
fixtures owned by Tenant, shall at once become a part of the Premises and belong
to Landlord. Tenant shall retain title to all moveable equipment, satellite
dishes and trade fixtures placed in or upon the Premises or the Building by
Tenant. All heating, lighting, electrical, air conditioning, floor to ceiling
partitioning, drapery, carpeting, and floor installations made by Tenant,
together with all property that has become an integral part of the Premises,
shall not be deemed trade fixtures.
12. MAINTENANCE
AND REPAIR OF THE PREMISES.
So long
as no Event of Default (as defined in Paragraph 24) has occurred, which remains
uncured beyond the applicable cure period (if any) set forth in this Lease,
Landlord shall, subject to reimbursement from Tenant in accordance with
Paragraph 9, maintain and repair the Premises and the Building in good condition
and state of repair, except to the extent of any non insured damage (or
deductible portion of any insured damage) (subject to Paragraph 17(B)) that
is
the result of the negligence or willful act of Tenant or Tenant’s Related
Parties, in which case Tenant shall be liable for the repair at Tenant's sole
cost and expense. Landlord shall have no obligation to make repairs under this
Paragraph (except for routine preventative maintenance) until a reasonable
time
after receipt of notice from Tenant of the need for such repairs. Landlord
shall
provide on-call facilities maintenance support (“Facilities Hotline”) for
responding to Tenant’s maintenance, repair and emergency facilities needs. The
Facilities Hotline shall be attended by Landlord’s employees Monday-Friday from
8:00 AM to Noon and from 1:00 PM to 5:00 PM, with emergency response available
24 hours a day via communication through the on-site security personnel.
Response times to Tenant shall be consistent with those response times for
Landlord’s employees and other Complex tenants and Landlord reserves the right
to modify or cancel the provision of the Facilities Hotline at any time and
for
any reason at Landlord’s sole discretion, upon thirty (30) days written notice.
In no event shall any payments owed by Tenant under this Lease be abated on
account of Landlord's failure to make repairs under this Paragraph.
Notwithstanding the foregoing, in the event of a necessary repair to the
Premises which, if not repaired, has the potential for causing damage to
property or injury to persons, and Landlord has not responded to Tenant’s
request for such repair within one (1) hour, then Tenant shall have the right
to
contact the service provider designated by Landlord to complete such repair,
which services shall be billed directly to Landlord. Landlord shall provide
to
Tenant a list of its designated service providers prior to the Commencement
Date. Tenant
hereby waives all statutory rights to make repairs for or at the expense of
Landlord.
Notwithstanding
the foregoing, Tenant acknowledges and agrees that Tenant shall be solely
responsible for the maintenance and repair of the dedicated 5-ton HVAC unit,
which unit shall be available for service 24 hours a day, 7 days a week, and
shall support the Lab Space (the “Supplemental HVAC”). During the Lease Term,
Tenant shall be required to contract for and maintain a maintenance and service
contract for such Supplemental HVAC unit with a provider approved by Landlord,
and shall provide Landlord with a copy of such contract within thirty (30)
days
after the Commencement Date and at such other times as Landlord
requests.
13. UTILITY
AND OTHER SERVICES PROVIDED BY LANDLORD.
A. Janitorial
Services. Landlord
shall provide, during the Lease Term, janitorial services to the common areas
and the Premises consistent with the specifications followed by Landlord in
its
owned/occupied buildings. Such janitorial services shall include, but not be
limited to, vacuuming and trash removal. Tenant’s Share of the cost of
janitorial service shall be paid to Landlord in accordance with Paragraph 9
of
this Lease.
B. Utilities.
As
Additional Rent and in accordance with Paragraph 4.E., Tenant shall pay to
Landlord the amounts set forth in Paragraph 1.F as the estimated cost of water,
gas, electricity, sewer service, and waste pick-up for the Premises, Tenant’s
Share of the Common Areas within the Building and Tenant’s share of the parking
areas surrounding the Building (collectively, the “Utility Costs”). Annually,
Landlord shall reconcile the actual expenses for Utility Costs as compared
to
the estimated payments made throughout the preceding calendar year. There shall
be an adjustment between Landlord and Tenant for any over or under payment
of
such Utility Costs for the preceding calendar year, with payment to Landlord
or
credit to Tenant against the next installment of Rent (or refund following
the
expiration of the Lease Term), as the case may require, within ten (10)
days after Landlord’s delivery of such reconciliation to Tenant.
Tenant
is
informed and acknowledges that electricity to the Building is not separately
metered to each premises. In order to comply with the requirements of the City
of Milpitas and for life safety purposes, Tenant acknowledges that the Building
is equipped with a master switch for electrical current to the entire Building.
In emergency situations, Tenant acknowledges and agrees that emergency personnel
may, for life safety purposes, cut off electricity to the entire
Building.
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Page 11
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If
at any
time the Building is not at least 85% occupied or Landlord is not supplying
utilities (as described in this subparagraph) to at least 85% of the rentable
areas of the Building during an entire calendar year, then Landlord may adjust
actual Utility Costs to Landlord's estimate of that amount which would have
been
paid or incurred by Landlord as Utility Costs s had the Building been 85%
occupied or serviced, and the Utility Costs as so adjusted shall be deemed
to be
the actual Utility Costs for such calendar year.
C. Other
Services.
Tenant
shall pay, directly to the provider of such services, as the same shall become
due, all charges for telephone, telex and other electronic communications
service, and any other utilities, materials or services (including engineering
and/or space planning/coordination) furnished directly to or used by Tenant
on
or about the Premises during the Lease Term. Tenant shall pay for any and all
telecommunication or other utility system modifications or additions which
it
may require and which Landlord expressly agrees to provide pursuant to the
terms
of this Lease or any subsequent written agreement; provided, however, that
nothing in this Lease shall require Landlord to provide, modify or install
any
utility system or utility system component for Tenant's use except to the extent
that the same is required by law or by an express written agreement between
Landlord and Tenant.
D. Interruption
of Service. Except
as
provided in Paragraph 18 of this Lease, Landlord shall not be liable for, and
Tenant shall not be entitled to, any abatement or reduction of Rent or other
compensation by reason of any interruption or failure of utility services to
the
Premises under this Paragraph 13, including, but not limited to,
interruption due to emergency situations or as necessary to install or repair
facilities anywhere in the Building.
E. Reservation
of Rights.
Landlord
reserves the right to change providers of any and all services at its sole
discretion.
14. SECURITY/COMMON
AREA. During
the Lease Term, Tenant shall be entitled to use all existing security hardware,
as currently located in the Building and the Premises (the “Security System”),
and shall be granted access to the Premises via the exterior badge readers
24X7.
The Security System shall at all times remain the property of Landlord, and
may
be used by Tenant during the Lease Term without additional charge. Any new
equipment installations with respect to the Security System will constitute
accessions and shall become part of the Security System and shall be owned
by
Landlord. Such installations shall be paid for by Tenant and Tenant shall use
Landlord’s normal installation vendor for all such service so long as the cost
of such services provided by Landlord’s vendor are reasonable and customary.
Landlord shall be responsible for fire extinguisher maintenance, storm water
runoff filing, Premises door checks, monitoring cameras and alarms, responding
to alarm calls (to the same degree that Landlord currently responds to alarm
calls in areas occupied by its own employees and other Complex tenants), and
maintenance of badging system as well as issuance of employee/contractor badges
at a cost of $10.00 per new or replacement badge issued; provided, however,
the
initial supply of security badges for Tenant’s existing employees as of the
Commencement Date shall be free of charge. Landlord’s Security Command Center
will provide passport photo service to Tenant’s employees and building to car
escort so long as it is offering that same service to Landlord’s employees.
Notwithstanding anything to the contrary in this Lease, Landlord makes no
warranty or representation of any kind whatsoever with regard to the Security
System or the services provided under this Paragraph 14, including without
limitation their quality, adequacy, efficacy or appropriateness. Landlord’s
provision of the Security System is subject to the terms of Section 18 of this
Lease. Landlord may, at Landlord’s election, for any reason or for no reason
whatsoever, make modifications to the Security System, monitoring process and/or
terminate the provision of the Security System at any time upon thirty (30)
days
written notice to Tenant. Should modifications/termination be made by Landlord,
Operating Expenses shall be adjusted accordingly.
The
Security System (and badges to operate the same) shall secure building perimeter
access only. Tenant acknowledges that doors accessing the Premises from the
Common Area as well as doors to offices within the Premises shall be secured
with keyed locks only. Landlord shall provide Tenant with a reasonable number
of
keys to all such locks, which keys must be returned to Landlord by Tenant at
the
expiration or earlier termination of the Lease.
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Page 12
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15. TAXES.
A. Taxes
Payable by Landlord.
Landlord
shall pay for any and all real property taxes and assessments levied or imposed
against the Premises, Building and/or Complex. Tenant’s Share of such real
property taxes and assessments shall be paid to Landlord in accordance with
Paragraph 9 of this Lease.
This
obligation shall survive the expiration or earlier termination of this Lease,
and if any Real Property Taxes are imposed by the County Assessor or other
governmental authority for the period of time constituting the Lease Term,
whether or not Landlord is billed for the same during the Lease Term, Tenant
shall pay Tenant’s Share of such Real Property Taxes when they are ultimately
billed. The term "Real Property Taxes," as used herein, shall mean (i) all
taxes, assessments, levies and other charges of any kind or nature whatsoever,
general and special, foreseen and unforeseen (including all installments of
principal and interest required to pay any general or special assessments for
public improvements and any increases resulting from reassessments caused by
any
new improvements or any change in ownership of the Complex) now or hereafter
imposed by any governmental or quasi-governmental authority or special district
having the direct or indirect power to tax or levy assessments, which are levied
or assessed against, or with respect to the value, occupancy or use of, all
or
any portion of the Complex (as now constructed or as may at any time hereafter
be constructed, altered, or otherwise changed) or Landlord's interest therein;
any improvements located within the Complex (regardless of ownership); the
fixtures, equipment and other property of Landlord, real or personal, that
are
an integral part of and located in the Complex; or parking areas, public
utilities, or energy within the Complex; (ii) all charges, levies or fees
imposed by reason of environmental regulation or other governmental control
of
the Complex (excluding investigation and remediation costs); and (iii) all
costs
and fees (including attorneys' fees) incurred by Landlord in contesting any
Real
Property Tax and in negotiating with public authorities as to any Real Property
Tax. If at any time during the term of this Lease the taxation or assessment
of
the Complex prevailing as of the commencement date of this Lease shall be
altered so that in lieu of or in addition to any Real Property Tax described
above there shall be levied, assessed or imposed (whether by reason of a change
in the method of taxation or assessment, creation of a new tax or charge, or
any
other cause) an alternate or additional tax or charge (i) on the value, use
or
occupancy of the Complex or Landlord's interest therein or (ii) on or measured
by the gross receipts, income or rentals from the Complex, on Landlord's
business of leasing the Complex, or computed in any manner with respect to
the
operation of the Complex, then any such tax or charge, however designated,
shall
be included within the meaning of the term "Real Property Taxes" for purposes
of
this Lease. If any Real Property Tax is based upon property or rents unrelated
to the Complex, then only that part of such Real Property Tax that is fairly
allocable to the Complex shall be included within the meaning of the term "Real
Property Taxes." Notwithstanding the foregoing, the term "Real Property Taxes"
shall not include estate, inheritance, gift or franchise taxes of Landlord,
tax
penalties imposed for the late payment of Real Property Taxes, or the federal
or
state net income tax imposed on Landlord's income from all sources, in excess
of
the amount which would be payable if such tax or assessment expenses were paid
in installments over the longest permitted term. If any such taxes shall cover
any period of time prior to or after the expiration or termination of this
Lease, Tenant's Share of such taxes shall be prorated to cover only that portion
of the tax xxxx applicable to the period that this Lease is in effect, and
Landlord shall reimburse Tenant for any overpayment.
B. Taxes
Payable by Tenant. Tenant
shall be liable for and shall pay ten (10) days before delinquency, taxes levied
against any personal property or trade fixtures placed by Tenant in or about
the
Premises. If any such taxes on Tenant's personal property or trade fixtures
are
levied against Landlord or Landlord's property or if the assessed value of
the
Premises is increased by the inclusion therein of a value placed upon such
personal property or trade fixtures of Tenant and if Landlord, after written
notice to Tenant, pays the taxes based on such increased assessment, which
Landlord shall have the right to do regardless of the validity thereof (but
only
under proper protest if requested by Tenant), Tenant shall upon demand, as
the
case may be, repay to Landlord the taxes so levied against Landlord, or the
proportion of such taxes resulting from such increase in the assessment;
provided that in any such event Tenant shall have the right, in the name of
Landlord and with Landlord's full cooperation (but without cost to Landlord),
to
bring suit in any court of competent jurisdiction to recover the amount of
any
such taxes so paid under protest, and any amount so recovered shall belong
to
Tenant.
If
the
tenant improvements in the Premises (other than the initial Tenant Improvements
detailed in Section 2.C), whether installed, and/or paid for by Landlord or
Tenant and whether or not affixed to the real property so as to become a part
thereof, are assessed for real property tax purposes at a valuation higher
than
the valuation at which standard office improvements in other space in the
Complex are assessed, then the real property taxes and assessments levied
against Landlord or the Complex by reason of such excess assessed valuation
shall be deemed to be taxes levied against personal property of Tenant and
shall
be paid by Tenant within ten (10) days after Landlord delivers a demand
therefore. If the records of the County Assessor are available and sufficiently
detailed to serve as a basis for determining whether said Tenant improvements
are assessed at a higher valuation than standard office improvements in other
space in the Complex, such records shall be binding on both the Landlord and
the
Tenant. If the records of the County Assessor are not available or sufficiently
detailed to serve as a basis for making said determination, the actual cost
of
construction shall be used.
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Page 13
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16. TENANT’S
INSURANCE.
A. Liability
Insurance.
Tenant,
at Tenant’s expense, agrees to obtain and keep in force during the term of this
Lease a policy of commercial general liability insurance against any and all
claims for personal injury, death, property damage, or other liabilities related
to the condition, use or occupancy of Premises, or to Tenant’s operations on the
Premises, including an extended liability endorsement providing contractual
liability and broad form property damage coverage for full actual replacement
cost. Such insurance shall also contain a cross-liability clause.
Notwithstanding such cross-liability clause, Tenant’s obligations pursuant to
the indemnity set forth in Paragraphs 18 and 43 shall not be limited to the
amount of any insurance required of, or otherwise carried by, Tenant. Such
liability insurance shall be written with limits of not less than One Million
Dollars ($1,000,000) per occurrence and One Million Dollars ($1,000,000) annual
aggregate. Certificates evidencing the issuance of such insurance policies
shall
be furnished to Landlord prior to Tenant’s occupancy of the Premises. The policy
or policies affecting such insurance shall name Landlord and the beneficiary
or
mortgagee of any deed of trust or mortgage affecting the Complex as additional
insureds, and shall insure any liability of Landlord, contingent or otherwise,
with respect to any act or omission of Tenant, its agents, employees or invitees
or otherwise; shall be issued by an insurance company admitted and licensed
to
transact business in the State of California having a rating of A or better
in
“Best’s Insurance Guide”; shall provide that the insurance effected thereby
shall not be subject to cancellation, lapse or change, except upon thirty (30)
days’ prior written notice to Landlord; and shall not have a deductible in
excess of such amount as is approved by Landlord. Said liability insurance
shall
be primary and not contributing to any insurance available to Landlord, and
Landlord’s insurance shall be in excess thereto. If during the Lease Term, in
the reasonable opinion of Landlord’s lender or insurance advisor, the amount of
commercial general liability insurance described in this Paragraph 16 is not
adequate, Tenant agrees to increase said coverage to such reasonable amount
as
Landlord’s lender or insurance advisor shall deem adequate.
B. Personal
Property Insurance And Worker’s Compensation.
Tenant shall maintain a policy or policies of fire and property damage insurance
in “special perils” form with a sprinkler leakage endorsement insuring the
Furniture and Tenant’s personal property, inventory, trade fixtures, and any
improvements, additions or alterations made by or on behalf of Tenant within
the
Premises for the full replacement value thereof and not subject to a
co-insurance clause. The proceeds from any of such policies shall be used for
the repair or replacement of such items so insured. Tenant shall also maintain
a
policy or policies of worker’s compensation insurance and any other employee
benefit insurance sufficient to comply with all laws.
17. CASUALTY
INSURANCE; WAIVER OF SUBROGATION.
A. Property
Insurance.
Landlord
shall purchase and keep in force, a policy or policies of casualty insurance
covering loss or damage to the Premises, Building and related Common Area
improvements, providing protection against those perils covered by "special
perils" insurance, and including such other casualty endorsements as Landlord
may elect. Landlord may also maintain at Landlord's election, or if required
by
Landlord's lender from time to time, earthquake and/or flood damage insurance,
worker's compensation insurance, sprinkler leakage insurance and rental income
insurance. Tenant’s Share of such insurance costs shall be paid to Landlord in
accordance with Paragraph 9 of this Lease. If the cost of such insurance is
increased due to Tenant's use of the Premises or the Complex, Tenant agrees
to
pay to Landlord the full cost of such increase. Tenant shall have no interest
in
nor any right to the proceeds of any insurance procured by Landlord as described
in this Paragraph 17.
B. Waiver
of Subrogation. Notwithstanding
anything to the contrary in this Lease, each party hereby releases the other
party, and its partners, officers, agents, employees, and servants, from any
and
all claims, demands, loss, expense, or injury to the Premises or to the
furnishings, fixtures, equipment, inventory, or other property in, about, or
upon the Premises, which is caused by or results from perils, events, or
happenings which are the subject of fire or other casualty insurance in force
at
the time of such loss (or which would have been in force had the parties carried
the insurance required hereunder) irrespective of any negligence on the part
of
the released party which may have contributed to or caused such loss; subject
to
the following limitations: (i) the party being released shall not be released
from any liability to the extent that such damages are not covered by the
insurance recovery obtained by the releasing party, and (ii) the party being
released shall be responsible for reimbursing the releasing party for any
deductible owed as a result of such damages. Each party shall use commercially
reasonable efforts to obtain, if needed, appropriate endorsements to its
policies of insurance with respect to the foregoing releases; provided, however,
that failure to obtain such endorsements shall not affect the releases
hereinabove given. The provisions of the Paragraph shall not limit the
indemnity, hold harmless and/or defense provisions elsewhere in this
Lease.
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18. INDEMNIFICATION;
EXEMPTION OF LANDLORD FROM LIABILITY.
A. Indemnification
by Tenant. Except
as
otherwise expressly prohibited by law, Tenant shall, at its sole cost and
expense, indemnify, protect, defend (with counsel reasonably acceptable to
Landlord) and hold harmless Landlord, its partners, shareholders, officers,
directors, attorneys, agents, beneficiaries, employees, affiliates, contractors,
and Landlord’s related entities (collectively, "Landlord's Related Parties")
from and against all liabilities, obligations, damages, penalties, claims,
costs, charges, expenses, causes of action and/or judgments, including
reasonable attorneys' fees, which may arise in any manner due to injury, death
or property loss caused by, arising out of or in connection with (i) Tenant’s
use or occupancy of the Premises; (ii) the conduct of Tenant’s business; (iii)
any negligent or willful act of Tenant or Tenant's partners, shareholders,
officers, directors, attorneys, agents, beneficiaries, employees, affiliates,
contractors, and Tenant’s related
entities; and/or (iv) any breach by Tenant under this Lease; provided, however,
Tenant shall have no obligation to defend or indemnify Landlord from claims
which are caused by the negligence of Landlord or Landlord's Related Parties.
This indemnity shall survive the expiration or earlier termination of this
Lease. In no event shall Landlord be liable for consequential damages,
opportunity costs or lost profits incurred or suffered by Tenant as a result
of
any such claims.
B. Exemption
of Landlord from Liability. Except
for the active or gross negligence or willful misconduct of Landlord or
Landlord’s Related Parties, Landlord
and Landlord's Related Parties shall not be liable for, and Tenant waives,
all
claims for loss or damage to Tenant's business or damage or injury to person
or
property sustained by Tenant or any person claiming by, through, or under
Tenant, resulting from any accident or occurrence in, on or about the Premises,
or any other part of the Complex, including, without limitation, claims for
loss, theft or damage resulting from: (i) any Furniture or other equipment
or
appurtenances being in disrepair;
(ii)
injury done or occasioned by wind or weather; (iii) any defect in or failure
to
operate, for whatever reason, any Furniture or other equipment or facilities
in
or about the Building or the Complex; (iv) broken glass; (v) any act, omission
or negligence of other users or occupants of the Building or Complex, or the
public; or (vi) any other cause of any nature. To the maximum extent permitted
by law, Tenant agrees to use and occupy the Premises and the Furniture at
Tenant's own risk. In no event shall Landlord be liable for consequential
damages, opportunity costs or lost profits incurred or suffered by Tenant as
a
result of any such claims.
C. Indemnification
by Landlord. Landlord
hereby agrees to indemnify, defend, and hold harmless Tenant and Tenant’s
Related Parties from and against any and all liabilities, obligations, damages,
penalties, claims, costs, charges and expenses, including reasonable attorneys'
fees, which may arise in any manner due to injury, death or property loss caused
by, arising out of or in connection with, the negligence or willful misconduct
of Landlord or Landlord’s Related Parties or any breach by Landlord of this
Lease. This indemnity shall survive the expiration or earlier termination of
this Lease.
19. COMPLIANCE.
Tenant,
at its sole cost and expense, shall promptly comply with all laws, statutes,
ordinances and governmental rules, regulations or requirements now or hereafter
in effect; with the requirements of any board of fire underwriters or other
similar body now or hereafter constituted; and with any direction or occupancy
certificate issued pursuant to law by any public officer; provided, however,
that no such failure shall be deemed a breach of these provisions if Tenant,
immediately upon notification, commences to remedy or rectify said failure.
The
judgment of any court of competent jurisdiction
or the
admission by Tenant in any action against Tenant, whether Landlord be a party
thereto or not, that Tenant has violated any such law, statute, ordinance or
governmental
rule,
regulation, requirement, direction or provision, shall be conclusive of that
fact as between Landlord and Tenant. This Paragraph shall not be interpreted
as
requiring Tenant to make structural changes or structural improvements, except
to the extent such changes or improvements are required as a result of Tenant's
use or alteration of the Premises. Tenant shall, at its sole cost and expense,
comply with any and all requirements pertaining to said Premises, of any
insurance organization or company, necessary for the maintenance of reasonable
fire and public liability insurance covering the Premises.
20. LIENS.
Tenant shall keep the Premises and the Complex free from any liens arising
out
of any work performed, materials furnished or obligation incurred by Tenant.
In
the event that Tenant shall not, within ten (10) days following the imposition
of such lien, cause the same to be released of record, by bond or otherwise,
Landlord shall have, in addition to all other remedies provided herein and
by
law, the right, but not the obligation, to cause the same to be released by
such
means as it shall deem proper, including payment of the claim giving rise to
such lien. All sums paid by Landlord for such purpose, and all expenses incurred
by it in connection therewith, shall be payable to Landlord by Tenant on demand
with interest thereon as specified in Paragraph 44 below.
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21. ASSIGNMENT
AND SUBLETTING.
A. Restriction
on Transfers.
Tenant
shall not voluntarily or by operation of law assign, transfer, or hypothecate
the leasehold estate under this Lease, or any interest herein, and shall not
sublet the Premises, or any part thereof, or any right or privilege appurtenant
thereto, or any portion thereof (in any case, a “Transfer”), including, but not
limited to, the parking spaces to be used in connection with Tenant's occupancy,
or suffer any other person or entity to occupy or use the Premises, without,
in
each case the prior written consent of Landlord, which consent shall not be
unreasonably withheld. Any attempt to do so without such prior consent shall
be
wholly void and shall constitute a default by Tenant under this Lease. A
transfer of control of Tenant (as described in Paragraph 21.D), shall constitute
a Transfer. In the event Landlord consents to any Transfer, such consent shall
not constitute a waiver of any of the restrictions of this Paragraph 21 and
the
same shall apply to each successive Transfer hereunder, if any. In no event
shall Landlord's consent to a Transfer affect the continuing primary liability
of Tenant (which, following assignment, shall be joint and several with the
assignee), or relieve Tenant of any of its obligations hereunder without an
express written release being given by Landlord. In the event that Landlord
consents to a Transfer under this Paragraph 21, such Transfer shall not be
effective until the assignee or sublessee shall assume all of the obligations
of
this Lease on the part of Tenant to be performed or observed and whereby the
assignee or sublessee shall agree that the provisions contained in this Lease
shall, notwithstanding such Transfer, continue to be binding upon it with
respect to all future Transfers. Such assignment or sublease agreement shall
be
duly executed and a fully executed copy thereof shall be delivered to Landlord,
and Landlord may, at Landlord’s election, collect Rent due hereunder directly
from the assignee or sublessee. Collection of Rent directly from an assignee
or
sublessee shall not constitute a consent or a waiver of the necessity of consent
to such assignment or subletting, nor shall such collection constitute a
recognition of such assignee or sublessee as the Tenant hereunder or a release
of Tenant from the performance of all of its obligations hereunder.
B. Profits
on a Transfer. In
the
event that Tenant shall make a permitted Transfer hereunder of all or any
portion of the Premises (the "Transfer Space"), then the following shall apply:
Tenant shall pay Landlord monthly, as Additional Rent, at the same time as
the
monthly installment of Basic Rent required hereunder, one hundred percent (100%)
of the "Profit" paid by the transferee pursuant to the terms reserved in the
agreement of Transfer, assignment or sublease. For purposes of this paragraph,
"Profit" shall mean any consideration of any kind received, or to be received,
by Tenant as a result of the Transfer, if such sums are related to Tenant’s
interest in this Lease or in the Premises which are in excess of the applicable
Basic Rent and Additional Rent payable under this Lease (prorated if a portion
of the Premises is subleased), after deducting and paying therefrom Tenant's
reasonable attorneys' fees and broker's commissions incurred in connection
with
the Transfer; provided, however, as a condition to deducting such costs and
expenses, Tenant shall provide to Landlord evidence of the costs incurred and
any other information reasonably acceptable to Landlord to document such
expenditures and such expenditures shall be amortized over the term of the
Transfer on a straight-line basis. Tenant also shall furnish to Landlord upon
request from Landlord a complete statement setting forth in detail the
computation of all Profit derived and to be derived from such Transfer, such
computation to be made in accordance with generally accepted accounting
principles. Tenant agrees that Landlord or its authorized representatives shall
be given access at all reasonable times to the books and records of Tenant
relating to the calculation of such Profit, and Landlord shall have the right
to
make copies thereof.
C. Recapture
Right.
In lieu
of giving or withholding consent pursuant to Paragraph 21.A above, Landlord
may,
at its option, terminate this Lease (or in the case of a proposed subletting
or
assignment of a portion of the Premises, elect to terminate this Lease as
respects that portion) and release Tenant from any liability under this Lease
for Basic Rent and Additional Rent (as to that portion of the Premises involved)
accruing after the effective date of such termination ("Landlord's Recapture
Right"), subject to the following provisions. Landlord
shall exercise Landlord's Recapture Right, if at all, by giving Tenant notice
of
such exercise not later than thirty (30) days after Tenant notifies Landlord
that Tenant desires to assign the Lease or sublease the Premises (whether or
not
Tenant has located a specific proposed transferee). If Landlord fails to
exercise Landlord's Recapture Right within said thirty (30) day period, such
right shall be of no further force or effect with respect to the transaction
in
question.
Landlord
and Tenant agree and acknowledge that Landlord's Recapture Right as set forth
above is intended to permit Landlord to maintain control over the leasing of
space in the Premises, to protect its interest in the Premises and to prevent
such interest from being impaired. Tenant understands the nature of this right
and has approved the recapture provisions in consideration for Landlord's
agreement to release Tenant from liability for future Rent due with respect
to
the recaptured portion of the Premises pursuant to the provisions of this
Section.
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D. Certain
Transactions Permitted.
Notwithstanding the foregoing, and provided that Tenant notifies Landlord and
complies with the other applicable provisions of this Xxxxxxxxx 00, Xxxxxxxx
agrees that a Transfer to a Tenant Affiliate (defined below) shall not require
Landlord’s prior consent. As used herein, “Tenant Affiliate” means an entity
that assumes in writing the terms of this Lease, and controls, is controlled
by
or is under common control with Tenant or in the event of a merger or
consolidation either (a) Tenant is the surviving entity, or (b) after giving
effect to the merger, the surviving entity has assets and net worth at least
as
great as that of Tenant at the time Tenant executed this Lease. As used in
this
Lease, a party shall be deemed to “control” another party only if the first
party owns more than fifty percent (50%) of the stock or other beneficial
interests of the second party. A public offering of Tenant’s stock shall not be
deemed a “Transfer.”
E. Costs;
Acknowledgment of Reasonableness.
Tenant
agrees to reimburse Landlord for Landlord's reasonable expenses (including
reasonable attorneys' fees and costs) incurred in connection with processing
and
documentation associated with any consents requested by Tenant under this
Paragraph 21. Tenant agrees that the provisions of this Paragraph 21 are not
unreasonable standards or conditions for any purpose, including for purposes
of
the California Civil Code Section 1951.4(b).
22. SUBORDINATION
AND MORTGAGES.
If
Landlord's title or leasehold interest in the Premises is now or hereafter
encumbered by the lien of any mortgage or deed of trust to secure a loan from
a
lender (hereinafter referred to as a "Lender") to Landlord, Tenant shall, at
the
request of Landlord or Lender, execute in writing an agreement with Lender
in a
form reasonably acceptable to Tenant subordinating its rights under this Lease
to the lien of such mortgage or deed of trust, or, if so requested, agreeing
that the lien of Lender's mortgage or deed of trust shall be or remain subject
and subordinate to the rights of Tenant under this Lease; provided, however,
that such agreement contains a provision to the effect that notwithstanding
any
such subordination, Tenant's possession under this Lease shall not be disturbed
if Tenant is not in default and so long as Tenant shall pay all Rent and fully
and faithfully observe and perform all of the provisions set forth in this
Lease. Tenant’s failure to execute any such document or instrument within
fifteen (15) days after written demand therefore shall constitute an Event
of
Default. Tenant acknowledges that upon receipt from a lender of a "Demand to
Pay
Rent to Party other than Landlord" under Section 2938 of the California Civil
Code, Tenant shall be required to pay all Rents to the Lender as they become
due.
23. ENTRY
BY LANDLORD.
At all reasonable times after 24 hours prior notice (except in emergencies,
in
which case no notice is required) Landlord shall have, the right to enter the
Premises to inspect them; to perform any services to be provided by Landlord
hereunder; to submit the Premises to prospective purchasers, lenders, or tenants
and to post "For Rent" or "For Sale" or other signs relative to the same; to
post notices of nonresponsibility; and to alter, improve or repair the Premises,
all without abatement of Rent; and may erect scaffolding and other necessary
structures in or through the Premises where reasonably required by the character
of the work to be performed; provided, however that Landlord shall endeavor
not
to unreasonably interfere with Tenant's use of the Premises. For each of the
foregoing purposes, Landlord shall at all times have and retain a key with
which
to unlock all of the doors in an emergency. Any entry to the Premises obtained
by Landlord by any of said means, or otherwise, shall not under any
circumstances be construed or deemed to be a forcible or unlawful entry into
or
a detainer of the Premises or an eviction, actual or constructive, of Tenant
from the Premises or any portion thereof. Landlord shall also have the right
at
any time to change the arrangement or location of entrances or passageways,
doors and doorways, corridors, elevators, stairs, toilets or other public parts
of the Complex and to change the name, number or designation by which the
Complex is commonly known, and none of the foregoing shall be deemed an actual
or constructive eviction of Tenant, or shall entitle Tenant to any damages
or
reduction of Rent hereunder.
24. TENANT'S
DEFAULT.
The
occurrence of any of the following shall be an "Event of Default" (sometimes
referred to herein as a "default") by Tenant and a material breach of this
Lease:
(1) Tenant
shall fail to make any payment owed by Tenant under this Lease, as and when
due,
and such failure is not cured within five (5) days after Tenant receives written
notice from Landlord specifying such failure, unless Landlord is legally
prohibited from issuing a notice of default, in which event no grace period
shall apply. At Landlord's election, any such notice shall be concurrent with,
and not in addition to, any notice required under Section 1161 of the California
Code of Civil Procedure;
(2) Tenant
shall fail to observe, keep or perform any of the terms, covenants, agreements
or conditions under this Lease that Tenant is obligated to observe or perform,
other than that described in subsection (1) above, for a period of thirty (30)
days after Tenant receives written notice from Landlord of said failure;
provided, however, that if the nature of Tenant's default is such that more
than
thirty (30) days are reasonably required for its cure, then Tenant shall not
be
deemed to be in default under this Lease if Tenant shall commence the cure
of
such default within said thirty (30) day period and diligently prosecute the
same to completion within such time period as is reasonably needed but not
to
exceed ninety (90) days from the date of Landlord's notice. Notwithstanding
the
foregoing, if Landlord is legally prohibited from issuing a notice of default,
then no grace period shall apply. At Landlord's election, any such notice from
Landlord shall be concurrent with, and not in addition to, any notice required
under Section 1161 of the California Code of Civil Procedure. Notwithstanding
the foregoing, the following shall constitute an event of default without any
additional notice or lapse of time: (i) failure to provide an estoppel
certificate as required under Paragraph 31(i.e., within ten (10) days following
written notice from Landlord), or (ii) failure to provide an agreement for
the benefit of a Lender under Paragraph 22 (i.e., within fifteen (15) days
following written notice from Landlord);
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(3) Tenant
shall (i) make any general arrangement or assignment for the benefit of
creditors; (ii) become a "debtor" as defined in 11 U.S.C. Section 101 or any
successor statute thereto (unless, in case of a petition filed against Tenant,
the same is dismissed within 60 days); (iii) suffer the appointment of a trustee
or receiver to take possession of substantially all of Tenant's assets located
at the Premises or of Tenant's interest in this Lease, where possession is
not
restored to Tenant within 30 days; or (iv) suffer the attachment, execution
or
other judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where such seizure is not
discharged within 30 days. The provisions of this subparagraph 24(3) shall
also
apply to any Guarantor of this Lease. However, in the event that any provision
of this subparagraph is contrary to any applicable law, such provision shall
be
of no force or effect; or
(4) Tenant
shall vacate or abandon the Premises at any time during the Lease Term (except
that Tenant may vacate so long as it pays Rent, provides an on site security
guard during normal business hours from Monday through Friday, and otherwise
performs its obligations hereunder).
25. LANDLORD'S
REMEDIES AND RIGHTS
A. Termination
of Lease.
In case
of an Event of Default by Tenant, Landlord shall have the right, in addition
to
all other rights available to Landlord under this Lease or now or hereafter
permitted by law or in equity, to terminate this Lease by providing Tenant
with
a notice of termination. Upon termination, Landlord may recover any damages
proximately caused by Tenant's failure to perform under this Lease, or which
are
likely in the ordinary course of business to be incurred, including any amount
expended or to be expended by Landlord in an effort to mitigate damages, as
well
as any other damages which Landlord is entitled to recover under any statute
now
or hereafter in effect. Landlord's damages include, without limitation, the
following:
(1) the
worth
at the time of the award of any unpaid Rent which had been earned at the time
of
termination;
(2) the
worth
at the time of the award of the amount by which the unpaid Rent which would
have
been earned after termination until the time of the award exceeds the amount
of
the loss of such Rent that Tenant proves could have been reasonably avoided;
and
(3) the
worth
at the time of the award of the amount by which the unpaid Rent for the balance
of the term after the time of the award exceeds the amount of the loss of such
Rent that Tenant proves could have been reasonably avoided.
As
used
in subparagraphs (1) and (2) above, the "worth at the time of award" shall
be
determined by allowing interest at the maximum rate of interest permitted by
applicable law. As used in subparagraph (3), the "worth at the time of award"
shall be determined by discounting to present value such amount at one percent
(1%) more than the discount rate of the Federal Reserve Bank in San Francisco
in
effect at the time of the award. Other
than the foregoing, in no event shall Tenant be liable for consequential
damages, opportunity costs, or lost profits suffered by Landlord as a result
of
any such claims.
B. Continuation
of Lease.
In
accordance with California Civil Code Section 1951.4 (or any successor statute),
Tenant acknowledges that in the event Tenant has breached this Lease and
abandoned the Premises, this Lease shall continue in effect for so long as
Landlord does not terminate Tenant's right to possession, and Landlord may
enforce all its rights and remedies under this Lease, including the right to
recover the 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.
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C. Right
of Entry.
In case
of an Event of Default by Tenant, Landlord shall also have the right, with
or
without terminating this Lease, to enter the Premises and remove all persons
and
personal property from the Premises, such property being removed and stored
in a
public warehouse or elsewhere at Tenant's sole cost and expense for at least
thirty (30) days, and after such thirty (30) day period, Landlord shall have
the
right to discard or otherwise dispose of such property in accordance with
California law. No removal by Landlord of any persons or property in the
Premises shall constitute an election to terminate this Lease. Such an election
to terminate may only be made by Landlord in writing, or decreed by an
arbitrator or a court of competent jurisdiction. Landlord's right of entry
shall
include the right to remodel the Premises and relet the Premises. All costs
incurred in such entry and reletting shall be paid by Tenant. Rents collected
by
Landlord from any other tenant that occupies the Premises shall be offset
against the amounts owed to Landlord by Tenant. Tenant shall be responsible
for
any amounts not recovered by Landlord from any other tenant which occupies
the
Premises. Any payments made by Tenant shall be credited to the amounts owed
by
Tenant in the sole order and discretion of Landlord, irrespective of any
designation or request by Tenant. No entry by Landlord shall prevent Landlord
from later terminating this Lease by written notice.
D. Remedies.
Tenant
hereby waives, for itself and all persons claiming by, through or under Tenant,
all rights and privileges which it might have under any present or future law
to
redeem the Premises or to continue this Lease after being legally dispossessed
or ejected from the Premises. The rights and remedies of Landlord set forth
in
this Lease are not exclusive, and Landlord may exercise any other right or
remedy available to it under this Lease, at law or in equity.
26. DESTRUCTION.
In the event the Premises are destroyed in whole or in part from any cause,
except damage and destruction caused from vandalism or accident for which Tenant
is responsible for under Xxxxxxxxx 00, Xxxxxxxx may, at its
option:
(a) Rebuild
or restore the Premises to their condition prior to the damage or destruction,
or
(b) Terminate
this Lease, provided that the Premises is damaged to the extent of twenty
percent (20%) of the replacement cost thereof or to any extent if (i) the damage
is not covered by insurance, and/or (ii) the damage occurs during the last
twelve (12) months of the Lease Term.
Landlord
shall give Tenant notice in writing within thirty (30) days from the destruction
of the Premises of its election to either rebuild and restore them, or to
terminate this Lease. In the event Landlord agrees to rebuild or restore the
Premises, Landlord shall do so promptly at its expense. Unless such damage
is
caused by Tenant or Tenant's agents, employees or contractors, Tenant shall
be
entitled to a reduction in Rent while such repair is being made in the
proportion that the area of the Premises rendered untenantable by such damage
bears to the total area of the Premises. If Landlord initially estimates that
the rebuilding or restoration will exceed 180 days or if Landlord does not
complete the rebuilding or restoration within one hundred eighty (180) days
following the date of destruction (such period of time to be extended for delays
caused by the fault or neglect of Tenant or because of Acts of God, acts of
public agencies, labor disputes, strikes, fires, freight embargoes, rainy or
stormy weather, inability to obtain materials, supplies or fuels, acts of
contractors or subcontractors, or delay of the contractors or subcontractors
due
to such causes or other contingencies beyond the control of Landlord), then
Tenant shall have the right to terminate this Lease by giving thirty (30) days
prior written notice to Landlord. Notwithstanding anything herein to the
contrary, Landlord's obligation to rebuild or restore shall not include
restoration of Tenant's trade fixtures, equipment (including telecommunication
equipment, whether or not located within the Premises), merchandise, or any
improvements, alterations, or additions made by Tenant to the Premises, which
Tenant shall forthwith replace or fully repair at Tenant's sole cost and expense
provided this Lease is not cancelled according to the provisions
above.
Unless
this Lease is terminated pursuant to the foregoing provisions, this Lease shall
remain in full force and effect. Tenant hereby expressly waives any statutory
rights of termination which may arise by reason of any partial or total
destruction of the Premises.
In
the
event the damage or destruction of the Premises is caused by Tenant or Tenant's
employees, agents or independent contractors, Tenant shall pay the deductible
portion of Landlord’s insurance proceeds.
27. EMINENT
DOMAIN.
If all or any part of the Premises shall be taken by any public or quasi-public
authority under the power of eminent domain or conveyance in lieu thereof,
this
Lease shall terminate as to any portion of the Premises so taken or conveyed
on
the date when title vests in the condemnor, and Landlord shall be entitled
to
any and all payment, income, rent, award, or any interest therein whatsoever
which may be paid or made in connection with such taking or conveyance, and
Tenant shall have no claim against Landlord or otherwise for the value or any
unexpired term of this Lease. Notwithstanding the foregoing Paragraph, any
compensation specifically awarded to Tenant for loss of business, Tenant's
personal property, moving cost or loss of goodwill, shall be and remain the
property of Tenant.
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If
(i) any action or proceeding is commenced for such taking of the Premises
or any part thereof, or if Landlord is advised in writing by any entity or
body
having the right or power of condemnation of its intention to condemn the
Premises or any portion thereof, or (ii) any of the foregoing events occur
with respect to the taking of any other space in the Complex, or (iii) any
such
spaces are taken or conveyed in lieu of such taking, Landlord shall have the
right to terminate this Lease by giving Tenant written notice thereof within
sixty (60) days of the date of receipt of said written advice, or commencement
of said action or proceeding, taking or conveyance, which termination shall
take
place as of the first to occur of the last day of the calendar month next
following the month in which such notice is given or the date on which title
to
the Premises shall vest in the condemnor.
In
the
event of a partial taking or conveyance of the Premises, if the portion of
the
Premises taken or conveyed is so substantial that the Tenant can no longer
reasonably conduct its business, Tenant shall have the privilege of terminating
this Lease within sixty (60) days from the date of such taking or conveyance,
upon written notice to Landlord of its intention to do so, and upon giving
of
such notice this Lease shall terminate on the last day of the calendar month
next following the month in which such notice is given, upon payment by Tenant
of the Rent from the date of such taking or conveyance to the date of
termination.
If
a
portion of the Premises shall be taken by condemnation or conveyance in lieu
thereof and neither Landlord nor Tenant terminate this Lease as provided herein,
this Lease shall continue in full force and effect as to the part of the
Premises not so taken or conveyed, and the Rent herein shall be apportioned
as
of the date of such taking or conveyance so that thereafter the Rent to be
paid
by Tenant shall be in the ratio that the area of the portion of the Premises
not
so taken or conveyed bears to the total area of the Premises prior to such
taking.
28. SALE
OR CONVEYANCE BY LANDLORD.
In the
event of a sale or conveyance of the Complex or any interest therein, by any
owner of the reversion then constituting Landlord, the transferor shall thereby
be released from any further liability upon any of the terms, covenants or
conditions (express or implied) herein contained in favor of Tenant, and in
such
event, insofar as such transfer is concerned, Tenant agrees to look solely
to
the responsibility of the successor in interest of such transferor in and to
the
Complex and this Lease. After the date of any such transfer, the term “Landlord”
as used herein shall mean the applicable transferee of such interest in the
Premises. This Lease shall not be affected by any such sale or conveyance,
and
Tenant agrees to attorn to the successor in interest of such
transferor.
29. ATTORNMENT
TO LENDER OR THIRD PARTY.
In the
event the interest of Landlord in the Complex is encumbered by mortgage or
deed
of trust, and such interest is acquired by the lender or any third party through
judicial foreclosure, non-judicial foreclosure, or conveyance in lieu thereof,
Tenant hereby agrees to attorn to such purchaser or transferee and to recognize
such purchaser or transferee as the landlord under this Lease. In the event
the
lien of the deed of trust securing the loan from a lender to Landlord is prior
and paramount to the Lease, this Lease shall nonetheless continue in full force
and effect for the remainder of the unexpired term hereof, at the same rental
herein reserved and upon all the other terms, conditions and covenants herein
contained.
30. HOLDING
OVER.
Tenant
shall have no right to holdover possession of the Premises after the expiration
or termination of this Lease without the prior written consent of Landlord,
in
Landlord’s sole and absolute discretion. If, however, Tenant retains possession
of any part of the Premises after the Lease Term, Tenant shall become a tenant
at sufferance only, for the entire Premises upon all of the terms of this Lease
as might be applicable to such tenancy, except that Tenant shall pay Basic
Rent
and Additional Rent at a rate equal to two hundred percent (200%) of the Basic
Rent and Additional Rent payable under this Lease immediately prior to such
holdover, computed on the basis of a thirty day month for each day of the
holdover period. In addition, upon demand, Tenant shall pay to Landlord (i)
all
other amounts due and payable under this Lease, plus (ii) any and all other
damages, costs, expenses, and fees (including without limitation attorneys’
fees) incurred or suffered by Landlord as a result of such holdover by Tenant.
No acceptance of Rent or other payments under these holdover provisions shall
operate as a waiver of Landlord’s right to regain possession or any other of
Landlord’s remedies.
31. CERTIFICATE
OF ESTOPPEL.
Tenant
shall, within ten (10) days after written notice from Landlord, at any time,
execute, acknowledge and deliver to Landlord a statement in writing (i)
certifying that this Lease is unmodified and in full force and effect (or,
if
modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date to which the
rent and other charges are paid in advance, if any; (ii) acknowledging that
there are not, to Tenant’s knowledge, any uncured defaults on the part of
Landlord hereunder, or specifying such defaults, if any are claimed; and (iii)
certifying to such other matters concerning the Premises, the Lease or Tenant's
tenancy as Landlord may request. Any such statement may be conclusively relied
upon by any prospective purchaser or encumbrancer of the Premises. Tenant’s
failure to deliver such statement within such time shall be conclusive upon
Tenant that this Lease is in full force and effect, without modification except
as may be represented by Landlord, that there are no uncured defaults in
Landlord’s performance, and that not more than one month’s Rent has been paid in
advance.
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32. CONSTRUCTION
CHANGES.
It is
understood that the description of the Premises and the location of ductwork,
plumbing and other facilities therein are subject to such minor changes as
Landlord or Landlord's architect determines to be desirable in the course of
construction of the Premises, and no such changes, or any changes in plans
for
any other portions of the Premises or the Complex shall affect this Lease or
entitle Tenant to any reduction of Rent hereunder or result in any liability
of
Landlord to Tenant. Landlord does not guarantee the accuracy of any drawings
supplied to Tenant and verification of the accuracy of such drawings rests
with
Tenant.
33. RIGHT
OF LANDLORD TO PERFORM.
All terms, covenants and conditions of this Lease to be performed or observed
by
Tenant shall be performed or observed by Tenant at Tenant's sole cost and
expense and without any reduction of Rent. If Tenant shall fail to pay Rent,
required to be paid by it hereunder, or shall fail to perform any other term
or
covenant required to be performed by it hereunder, and such failure shall
continue for five (5) days after written notice thereof from Landlord, Landlord,
without waiving or releasing Tenant from any obligation of Tenant hereunder,
may, but shall not be obligated to, make any such payment or perform any such
other term or covenant on Tenant's part to be performed. All sums so paid by
Landlord and all necessary costs of such performance by Landlord together with
interest thereon at the rate of interest specified in Paragraph 44 below, shall
be paid to Landlord on demand as Additional Rent, and Landlord shall have (in
addition to any other right or remedy of Landlord) the same rights and remedies
in the event of nonpayment by Tenant of Rent hereunder.
34. ATTORNEY'S
FEES.
In the
event that either Landlord or Tenant should bring suit or become involved in
any
proceeding for the possession of the Premises, to enforce any provision of
this
Lease, for the recovery of any sum due under this Lease, or because of the
breach of any provision of this Lease, or for any other relief against the
other
party hereunder, then all costs and expenses, including reasonable attorneys'
fees, incurred by the prevailing party therein shall be paid by the other party,
which obligation on the part of the other party shall be deemed to have accrued
on the date of the commencement of such action or proceeding and shall be
enforceable whether or not the action or proceeding is prosecuted to judgment.
Should Landlord be named as a defendant in any suit brought against Tenant
in
connection with or arising out of Tenant's occupancy hereunder or the conduct
of
Tenant or Tenant’s agents in, upon or at the Premises, Tenant shall pay to
Landlord its costs and expenses incurred in such suit, including a reasonable
attorneys' fees.
35. WAIVER.
No covenant, term or condition or the breach thereof shall be deemed waived,
except by written consent of the party against whom the waiver is claimed,
and
any waiver of the breach of any covenant, term or condition shall not be deemed
to be a waiver of any other covenant, term or condition or any subsequent
failure of the party failing to perform or observe the same or any other such
term, covenant or condition. Acceptance by Landlord of any performance by Tenant
after the time the same shall have become due shall not constitute a waiver
by
Landlord of the breach or default of any covenant, term or condition unless
otherwise expressly agreed to by Landlord in writing.
36. NOTICES.
All notices, demands, requests, advises or designations (collectively "Notices")
which may be or are required to be given by either party to the other party
hereunder shall be in writing. All Notices shall be sufficiently given, made
or
delivered if (i) to Tenant, personally served on Tenant by leaving the same
at
the Premises, or (ii) to Landlord, if personally delivered to the address set
forth in Paragraph 1.N. Notice shall also be sufficiently given, made or
delivered if sent by (a) postage prepaid United States mail or overnight
courier, addressed as specified in Paragraph 1.N, or (b) facsimile transmission
to the numbers specified in Paragraph 1.N, with confirming copy sent by United
States mail. Each Notice referred to in this Paragraph shall be deemed received
on the date of the personal service or facsimile transmission, the next business
day after sending via overnight courier, or on the third (3rd) day after mailing
thereof by United States mail, postage prepaid, as the case may be.
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37. EXAMINATION
OF LEASE.
Submission of this instrument for examination or signature by Tenant does not
constitute a reservation of or option for a lease, and this instrument is not
effective as a lease or otherwise until its execution and delivery by both
Landlord and Tenant.
38. DEFAULT
BY LANDLORD.
Landlord shall not be in default unless Landlord fails to perform obligations
required of Landlord within a reasonable time, but in no event earlier than
thirty (30) days after written notice by Tenant to Landlord and to the holder
of
any mortgage or deed of trust covering the Premises whose name and address
shall
have previously been furnished to Tenant in writing, specifying wherein Landlord
has failed to perform such obligations; provided, however, that if the nature
of
Landlord's obligations is such that more than thirty (30) days are required
for
performance, then Landlord shall not be in default if Landlord commences
performance within such thirty (30) day period and thereafter diligently
prosecutes the same to completion.
39. AUTHORITY.
If Tenant is a corporation (or other entity) each individual executing this
Lease on behalf of said corporation (or other entity) represents and warrants
that he or she is duly authorized to execute and deliver this Lease on behalf
of
said corporation (or other entity) in accordance with the by-laws of said
corporation (or in accordance with the agreement of such other entity) and that
this Lease is binding upon said corporation (or other entity) in accordance
with
its terms. Tenant shall, within thirty (30) days after execution of this Lease,
deliver to Landlord a certified copy of the resolution of the Board of Directors
or other governing members of said corporation (or other entity) authorizing
or
ratifying the execution of this Lease.
40. LIMITATION
OF LIABILITY.
In consideration of the benefits accruing hereunder, Tenant and all successors
and assigns covenant and agree that, in the event of any actual or alleged
failure, breach or default hereunder by Landlord, the sole and exclusive remedy
and source of recovery for any judgment or award shall be against Landlord's
interest in the Premises. Tenant agrees that the foregoing covenant and
agreement shall be applicable to any covenant or agreement either expressly
contained in this Lease or imposed by statute or at common law.
41. BROKERS.
Tenant
and Landlord each warrants to the other that it has had no dealings with any
real estate broker(s) or agent(s), other than those specified in Paragraph
1.N,
and that it knows of no other real estate broker or agent who is entitled to
a
commission, in connection with this Lease. Each party shall indemnify, defend,
protect and hold harmless the other party and its agents, employees and
independent contractors from and against any and all liabilities, losses, costs,
expenses and damages (including attorneys' fees and costs) arising out of any
allegations or claim by any third party, other than the broker(s) specified
above, for a commission or fee in connection with the negotiation of this Lease
as a result of the actions of the indemnifying party. Pursuant to separate
written agreements, Landlord shall be responsible for the payment of a
commission to Landlord’s broker in connection with this Lease, and Landlord’s
broker shall be responsible for any commission or fee payable to Tenant’s
broker, and neither Landlord nor Tenant shall have any responsibility for such
payment to Tenant’s broker.
42. SIGNS.
Subject
to compliance with all applicable laws and regulations relating thereto and
approval by the City of Milpitas, Tenant shall be entitled to Tenant’s Share of
existing building directional signage and monument signage, which signage shall
be installed at Tenant’s sole cost and expense. Tenant shall be entitled to
apply vinyl lettering/logo to the Premises entry doors. Landlord shall provide
lobby directory signage at Landlord’s sole cost and expense. Except for the
foregoing, no sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside
of
the Premises or any exterior windows of the Premises unless Tenant complies
with
all applicable laws and regulations relating thereto and Tenant first obtains
the written consent of Landlord, which consent shall not be unreasonably
withheld or delayed. If Tenant violates any laws or regulations relating to
its
signs, or does not obtain Landlord's prior written consent pursuant to the
preceding sentence, Landlord shall have the right to remove any such sign,
placard, picture, advertisement, name or notice without notice to and at the
expense of Tenant.
All
approved signs or lettering shall be removed and restored upon the expiration
or
earlier termination of this Lease at Tenant’s sole cost and
expense.
Tenant
shall not place anything or allow anything to be placed near the glass of any
window, door partition or wall which may, in Landlord's judgment, appear
unsightly from outside the Premises.
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43. HAZARDOUS
MATERIALS.
A. Definitions.
As used
herein, the term “Hazardous Material” shall mean any substance or material which
has been determined by any state, federal, or local government authority to
be
capable of posing a risk of injury to health, safety or property including
all
of those materials and substances designated as hazardous or toxic by the
Environmental Protection Agency, the California Water Quality Control Board,
the
Department of Labor, the California Department of Industrial Relations, the
Department of Transportation, the Department of Agriculture, the Department
of
Human Services, the Food and Drug Agency or any other governmental agency which
regulates hazardous or toxic substances in the environment. Without limiting
the
generality of the foregoing, the term “Hazardous Material” shall include (i) all
of those materials and substances defined as “Toxic Materials” in Sections 66680
through 66685 of Title 22 of the California Administrative Code, Division 4,
Chapter 30, as the same shall be amended from time to time, or any other
federal, state or local statute, law, ordinance, resolution, code, rule,
regulation, order or decree regulating, relating to, or imposing liability
or
standards of conduct concerning, any hazardous, toxic or dangerous waste,
substance or material as now or at any time hereafter in effect, (ii) any
substance, product, waste or other material of any nature whatsoever which
may
give rise to liability under any statutory or common law theory based on
negligence, trespass, intentional tort, nuisance or strict liability or under
any reported decisions of a state or federal court, or (iii) petroleum or crude
oil other than petroleum and petroleum products which are contained within
regularly operated motor vehicles.
B. Restriction
on Use.
Except
for small quantities of products used in normal office environments (e.g.,
toner, white out), Tenant shall not cause or permit any Hazardous Material
to be
used, generated, released, discharged, transported to or from, stored, or
disposed of in or about the Premises, the Complex, or any other land or
improvements in the vicinity of the Premises or the Complex, without the prior
written consent of Landlord, which consent may be withheld in Landlord's sole
and absolute discretion. Without limiting the generality of the foregoing,
Tenant, at its sole cost and expense, shall comply with all laws relating to
the
storage, use, generation, release, transportation and disposal of Hazardous
Materials. If the presence of any Hazardous Material on the Premises caused
or
permitted by Tenant results in contamination of the Premises, the Complex,
or
any nearby premises, Tenant, at its sole cost and expense, shall promptly take
all actions necessary to return the same to the condition existing prior to
such
contamination.
C. Indemnity.
Tenant
shall indemnify, defend, protect and hold harmless Landlord and Landlord's
agents, employees and independent contractors from and against any and all
claims, judgments, damages (including, without limitation, punitive damages),
losses, penalties, fines, demands, liabilities (including strict liability),
encumbrances, liens, costs and expenses of investigation and defense of any
claim, including, without limitation, reasonable attorneys' fees and
disbursements and consultants' fees, arising out of, relating to or resulting
from any storage, use, generation, discharge, treatment, transportation, release
or disposal by Tenant, or Tenant's agents, employees or independent contractors,
of any Hazardous Material upon, about, above or beneath the Premises, the
Complex or any nearby premises. This indemnity shall survive the expiration
or
earlier termination of this Lease. Tenant shall not suffer any lien to be
recorded against the Premises or the Complex as a consequence of a Hazardous
Material, including any so-called state, federal or local “super fund” lien
related to the “clean up” of a Hazardous Material in or about the Premises, the
Complex or any other premises.
D. Notices.
Tenant
and Landlord each shall immediately notify the other of any inquiry, test,
investigation, or enforcement proceeding by or against such party or the
Premises concerning a Hazardous Material. Tenant acknowledges that Landlord,
as
the owner of the Premises, at its election, shall have the sole right, at
Tenant’s expense, to negotiate, defend, approve and appeal any action taken or
order issued with regard to a Hazardous Material released or disposed of by
Tenant or Tenant’s Related Parties by any applicable governmental authority.
Landlord shall have the right to appoint a consultant, at Tenant’s expense, to
conduct an investigation to determine whether any storage, use, generation,
discharge, treatment, transportation, release or disposal by Tenant, or Tenant’s
Related Parties, of any Hazardous Material is being conducted in an appropriate
manner and in accordance with all applicable laws. Tenant, at its expense,
shall
comply with all recommendations of the consultant.
E. Condition
upon Surrender of Premises.
Upon
the expiration or earlier termination of the Lease, Tenant, at its sole cost,
shall remove all Hazardous Materials from the Premises resulting from any
storage, use, generation, discharge, treatment, transportation, release or
disposal by Tenant, or Tenant’s Related Parties, of any Hazardous Material. If
Tenant fails to so surrender the Premises, Tenant shall, in addition to its
obligations under Paragraph 43.C above, indemnify, defend, protect and hold
harmless Landlord and Landlord's agents, employees and contractors from and
against any and all damages arising out of, related to or resulting from
Tenant’s failure to surrender the Premises as required by this Paragraph,
including without limitation any claims or damages in connection with the
condition of the Premises such as damages occasioned by the inability to relet
the Premises or a reduction in the fair market and/or rental value of the
Premises by reason of the existence of any Hazardous Material upon, about,
above
or beneath the Premises, the Complex or any nearby premises.
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F. Clean-up
Activities.
If any
action is required to be taken by a governmental authority to clean-up Hazardous
Materials from the Premises resulting from any storage, use, generation,
discharge, treatment, transportation, release or disposal by Tenant, or Tenant’s
Related Parties, of any Hazardous Material, and such action is not completed
prior to the expiration or earlier termination of the Lease, Tenant shall be
deemed to have impermissibly held over until such time as such required action
is completed, and in addition to the requirements of Xxxxxxxxx 00, Xxxxxxxx
shall be entitled to all damages directly or indirectly incurred in connection
with such holding over, including without limitation, damages occasioned by
the
inability to relet the Premises or a reduction of the fair market and/or rental
value of the Premises.
G. Exemption
of Tenant from Liability.
Notwithstanding anything in this Lease to the contrary, Tenant shall not be
responsible for the clean-up or remediation of, and shall not be required to
indemnify Landlord against, any claims, losses, liabilities or expenses
resulting form any Hazardous Materials placed on or about the Premises prior
to
the Commencement Date by parties other than Tenant or Tenant’s Related Entities,
except to the extent that such contamination has been exacerbated by Tenant
or
Tenant’s Related Entities or by Tenant’s failure to perform its obligations
under this Paragraph 43.
H. Landlord’s
Representations. To
Landlord’s Knowledge (as defined in Paragraph 46.J), the buildings contain no
Hazardous Materials or asbestos.
44. INTEREST.
Any sum
accruing to Landlord under the provisions of this Lease which shall not be
paid
by Tenant within thirty (30) days after such sum becomes due, shall bear
interest from the expiration of such 30 day period, until paid, at the rate
of
twelve percent (12%) per annum, or the maximum rate then permitted under
applicable law, whichever is less.
45. FURNITURE.
Tenant
shall be entitled to use the furniture, work stations, voice and data cabling
currently located in the Premises as shown on Exhibit B (“Furniture”). The
Furniture at all times shall remain the property of Landlord, and shall be
used
by Tenant during the Lease Term free of charge. Tenant agrees, at its sole
cost
and expense, to maintain the Furniture in good condition and repair, allowing
for reasonable wear and tear, and to insure the Furniture in accordance with
the
terms and conditions of Paragraph 16. In the event that the Furniture is damaged
during Tenant’s occupancy of the Premises beyond ordinary wear and tear, Tenant
shall, at Landlord’s option, either repair or replace such damaged Furniture at
Tenant's sole cost and expense. Any installations, replacements, and
substitutions of parts or accessories with respect to any of the Furniture
supplied by Landlord shall constitute accessions and shall become part of the
Furniture and shall be owned by Landlord. Such installations, replacements
and
substitutions shall be paid for by Tenant. Landlord shall not be under any
liability or obligation in any manner to provide service, maintenance, or
repairs for the Furniture. Upon the expiration or earlier termination of this
Lease, Tenant shall return the Furniture in the same condition and repair as
the
Furniture was delivered to Tenant, excepting only ordinary wear and
tear.
46. MISCELLANEOUS
AND GENERAL PROVISIONS.
A. Use
of Building Name.
Tenant
shall not, without the written consent of Landlord, use the name of the Building
for any purpose other than as the address of the business conducted by Tenant
in
the Premises.
B. Governing
Law; Partial Invalidity.
This
Lease shall in all respects be governed by and construed in accordance with
the
laws of the State in which the Premises are located. If any provision of this
Lease shall be invalid, unenforceable or ineffective for any reason whatsoever,
all other provisions hereof shall be and remain in full force and
effect.
C. Definitions;
Binding Effect.
The
term "Premises" includes the space leased hereby and any improvements now or
hereafter installed therein or attached thereto. The term "Landlord" or any
pronoun used in place thereof includes the plural as well as the singular and
the successors and assigns of Landlord. The term "Tenant" or any pronoun used
in
place thereof includes the plural as well as the singular and individuals,
firms, associations, partnerships and corporations, and their and each of their
respective heirs, executors, administrators, successors and permitted assigns,
according to the context hereof, and the provisions of this Lease shall inure
to
the benefit of and bind such heirs, executors, administrators, successors and
permitted assigns. The term "person" includes the plural as well as the singular
and individuals, firms, associations, partnerships and corporations. Words
used
in any gender include other genders. If there be more than one Tenant, the
obligations of Tenant hereunder are joint and several. The paragraph headings
of
this Lease are for convenience of reference only and shall have no effect upon
the construction or interpretation of any provision hereof.
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D. Time
of the Essence.
Time is
of the essence of this Lease and of each and all of its provisions.
E. Waiver
of Jury Trial.
LANDLORD
AND TENANT EACH ACKNOWLEDGE THAT IT IS AWARE OF ITS CHOICE WITH RESPECT TO
ITS
RIGHTS TO TRIAL BY JURY, AND HAS HAD THE ADVICE OF COUNSEL, AND, TO THE FULLEST
EXTENT PERMITTED BY LAW, EACH PARTY DOES HEREBY EXPRESSLY AND KNOWINGLY WAIVE
AND RELEASE ALL SUCH RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER (AND/OR AGAINST
ITS OFFICERS, DIRECTORS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS, OR SUBSIDIARY OR
AFFILIATED ENTITIES) ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, TENANT'S USE OR OCCUPANCY OF THE PREMISES, AND/OR
ANY
CLAIM OF INJURY OR DAMAGE. Landlord
and Tenant hereby
agree that the other party hereto shall be authorized to file this Lease with
the clerk or judge of any court of competent jurisdiction, as a written consent
to waiver of trial by jury.
F. Entire
Agreement.
All
exhibits, riders and attachments referenced in this Lease are hereby
incorporated into this Lease. This instrument along with any exhibits, riders
and attachments hereto constitutes the entire agreement between Landlord and
Tenant relative to the Premises and this agreement and the exhibits and
attachments may be altered, amended or revoked only by an instrument in writing
signed by both Landlord and Tenant. Landlord and Tenant hereby acknowledge
that
neither party has relied upon any representation concerning the Premises that
is
not set forth in this Lease and agree that all prior or contemporaneous oral
agreements between and among themselves and their agents or representatives
relative to the leasing of the Premises are merged in or revoked by this
agreement.
G. Recording
of Lease; Quitclaim.
Neither
Landlord nor Tenant shall record this Lease or a short form memorandum hereof
without the consent of the other. At the expiration or earlier termination
of
this Lease, Tenant shall execute, acknowledge and deliver to Landlord, within
ten (10) days after written demand from Landlord to Tenant, any quitclaim deed
or other document required by any reputable title company licensed to operate
in
the State of California, to remove the cloud or encumbrance created by this
Lease from the real property of which Tenant's Premises are a part.
H. Amendments
Required by Lender.
Tenant
further agrees to execute any amendments required by a lender to enable Landlord
to obtain financing, so long as such modifications are reasonable, do not
increase the obligations of Tenant hereunder, or materially adversely affect
the
leasehold estate created hereby or materially diminish Tenant’s rights
hereunder.
I. Air
Rights Retained by Landlord.
Tenant
covenants and agrees that no diminution or shutting off of light, air or view
by
any structure which may be hereafter erected (whether or not by Landlord) shall
in any way affect this Lease, entitle Tenant to any reduction of Rent hereunder
or result in any liability of Landlord to Tenant.
J. Landlord’s
Knowledge. As
used
in this Lease, the term “Landlord’s Knowledge” or words of similar import shall
mean the actual current knowledge of Xxxxxx X. Xxxxxx, without the duty of
further investigation or inquiry with respect to the matter to which such actual
knowledge pertains; provided, however, in no event shall this Lease give rise
to
any personal obligation, liability or duty on the part of Xxxxxx X. Xxxxxx,
or
any other trustee, officer, director, agent, representative or employee of
Landlord. Xxxxxx X. Xxxxxx shall not be charged with constructive or inquiry
notice or knowledge, or imputed knowledge of any agents, contractors, or
employees.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, Landlord and Tenant have executed and delivered this Lease
as
of the date first above written.
LANDLORD:
ADAPTEC,
INC.,
A
Delaware corporation
By:
_______________________________________
Xxxxxx
X.
Xxxxxx
Title:
Director of Corporate Facilities and Real Estate
TENANT:
TECHNOCONCEPTS,
INC.,
A
Nevada
corporation
By:
_______________________________________
Name:
Xxxxxxx Handelman_________________
Title:
Chief Financial Officer_______________
-
Page 26
of 32 -
EXHIBIT
A
FLOOR
PLAN OF THE BUILDING AND PREMISES
[to
be
attached]
EXHIBIT
B
TENANT
IMPROVEMENTS SPACE PLAN/FURNITURE LAYOUT
FOR
THE
PREMISES
[To
Be
Attached.]
EXHIBIT
C
COMMENCEMENT
DATE MEMORANDUM
|
Landlord:
|
ADAPTEC,
INC., a Delaware corporation
|
|
Tenant:
|
TECHNOCONCEPTS,
INC., a
____________ corporation
|
|
Premises:
|
000
Xxxxx Xxxxxxxx Xxxx. (Building 1), Suite 100, Milpitas,
California
|
For
the
Lease Agreement dated November
13 ,
2006,
the undersigned hereby certifies:
|
I.
|
That
the undersigned Tenant occupies the above-described Premises consisting
of
approximately 6,709 square feet of leasable
area.
|
|
II.
|
That
the initial Lease Term commenced on _________________
and will terminate on _________________.
|
|
III.
|
That
Tenant's obligation to pay Basic Rent in the amount of_________________
commenced on _________________
|
|
IV.
|
That
a security deposit of _________________
has been paid by Tenant to
Landlord.
|
|
V.
|
That
all tenant improvements to be constructed by Landlord are complete
and
have been accepted by Tenant, except as follows:
__________________________________________.
|
Dated
as
of
.
|
LANDLORD:
|
TENANT:
|
|
|
Adaptec,
Inc.,
|
||
|
a
Delaware corporation
|
a
Nevada corporation
|
|
|
By:
_________________________________
|
By:
_________________________________
|
|
|
Xxxxxx
X. Xxxxxx, Director of Corporate
|
||
|
Facilities
and Real Estate
|
Name:
______________________________
|
|
|
Title:
________________________________
|
||
|
Date:
____________________
|
Date:
___________________
|
|
|
By:
______________________________________
|
||
|
Name:
___________________________________
|
||
|
Title:
____________________________________
|
DO
NOT EXECUTE UNTIL THE EXACT COMMENCEMENT DATE
HAS
BEEN ESTABLISHED PURSUANT TO PARAGRAPH 5 OF THE LEASE.
EXHIBIT
C
- COMMENCEMENT DATE MEMORANDUM
EXHIBIT
D
RULES
AND
REGULATIONS
1. No
sign,
placard, picture, advertisement, name or notice shall be inscribed, displayed,
or printed or affixed on or to any part of the outside or inside common area
of
the Building without the written consent of Landlord first had and obtained
and
Landlord shall have the right to remove any such sign, placard, picture,
advertisement, name or notice without notice to and at the expense of
Tenant.
2. All
approved signs or lettering on doors shall be printed, painted, affixed or
inscribed at the expense of Tenant by a person approved of by
Landlord.
3. Tenant
shall not place anything or allow anything to be placed near the glass of any
window, door, partition or wall which may appear unsightly from outside the
Premises, provided, however, that Landlord may furnish and install a Building
standard window covering at all exterior windows. Tenant shall not without
prior
written consent of Landlord cause or otherwise sunscreen any
window.
4. The
sidewalks, halls, passages, exits, entrances, elevators and stairways shall
not
be obstructed by any of the tenants or used by them for any purpose other than
for ingress and egress from their respective premises.
5. Tenant
shall not alter any lock or install any new or additional locks outside tenant
suite or any bolts on any doors or windows of the Premises.
6. The
toilet rooms, urinals, wash bowls and other apparatus shall not be used for
any
purpose other than that for which they were constructed and no foreign substance
of any kind whatsoever shall be thrown therein and the expense of any breakage,
stoppage or damage resulting from the violation of this rule shall be borne
by
Tenant who, or whose employees or invitees shall have caused it.
7. Tenant
shall not disturb, solicit, or canvass any occupant of the Building and shall
cooperate to prevent the same.
8. Landlord
shall have the right to control and operate the public portions of the Building,
and the public facilities, and heating and air conditioning, as well as
facilities furnished for the common use of the tenants, in such manner as it
deems best for the benefit of the tenants generally.
9. Landlord
shall clean the Premises as provided in the Lease, and except with the written
consent of Landlord, no person or persons other than those approved by Landlord
will be permitted to enter the Building for such purposes. Tenant shall not
cause unnecessary labor by reason of Tenant’s carelessness and indifference in
the preservation of good order and cleanliness. All cardboard boxes must be
“broken down”, and all styrofoam chips must be bagged or otherwise contained so
as not to constitute a nuisance. Landlord shall have no responsibility
whatsoever for the theft of or damage to any property of Tenant or its employees
resulting from any acts or omissions of janitorial personnel, and Tenant hereby
waives any and all claims against Landlord therefor.
10. Landlord
shall not be responsible to Tenant or to any other person for the violation
of
these or other rules and regulations by any other tenant or other person. Tenant
shall be deemed to have read these Rules and Regulations and to have agreed
to
abide by them as a condition precedent, waivable only by Landlord, to Tenant’s
occupancy of the Premises.
11. Business
machines and mechanical equipment belonging to Tenant which cause noise or
vibration that may be transmitted to the structure of the Building, to such
a
degree as to be reasonably objectionable to Landlord or other tenants, shall
be
placed and maintained by Tenant, at Tenant’s expense, on vibration eliminators
or in noise-dampening housing or other devices sufficient to eliminate noise
or
vibration.
12. All
goods, including material used to store goods, delivered to the Premises of
Tenant shall be immediately moved into the Premises and shall not be left in
parking or receiving areas overnight.
13. Except
to
the extent (if any) that trash removal is provided by Landlord as part of Common
Area maintenance services, Tenant is responsible for the storage and removal
of
all trash and refuse. All such trash and refuse shall be contained in suitable
receptacles at locations approved by Landlord.
14. Tenant
shall not store or permit the storage or placement of goods or merchandise
in or
around the common areas surrounding the Premises. No displays or sales of
merchandise shall be allowed in the parking lots or other common
areas.
Exhibit
D
- Page 1
RULES & REGULATIONS
15. Tenant
shall not permit any animals, including but not limited to, any household pets,
to be brought or kept in or about the Premises, the Building, the Complex or
any
of the Common Areas, except for seeing-eye animals.
16. Tenant
shall not obstruct sidewalks, entrances, passages, corridors, vestibules, halls,
or stairways in and about the Complex which are used in common with other
tenants, and which are not a part of the Premises of Tenant. Tenant shall not
place objects against glass partitions or doors or windows which would be
unsightly from the Building corridors or from the exterior of the Complex and
will promptly remove any such objects upon notice from Landlord.
17. Tenant
shall not waste electricity, water or air conditioning furnished by Landlord,
if
any, and shall cooperate fully with Landlord to insure the most effective
operation of the Project’s heating and air conditioning systems consistent with
Tenant’s business operations as permitted by the Lease.
18. Tenant
assumes full responsibility for protecting its space from theft, robbery and
pilferage, which includes keeping doors locked and other means of entry to
the
Premises closed and secured after normal business hours.
19. The
Premises shall not be used for cooking (as opposed to heating of food), lodging,
sleeping or for any immoral or illegal purpose.
20. Tenant
shall observe faithfully and comply strictly with the foregoing rules and
regulations and such other and further appropriately reasonable rules and
regulations as Landlord or Landlord’s agent may from time to time adopt;
provided, however, that in the event of any inconsistency or conflict between
the rules and regulations and provisions of the Lease, the latter shall control.
Reasonable notice of any additional rules and regulations shall be given in
such
manner as Landlord may reasonably elect.
21. No
electric circuits for any purpose shall be brought into the Premises without
Landlord’s written permission specifying the manner in which same may be done.
Tenant shall not overload any utilities serving the Premises.
22. Wherever
in these Rules and Regulations the word “Tenant” occurs, it is understood and
agreed that it shall mean Tenant’s associates, employees, contractors, agents,
subtenants, and licensees. Wherever the word “Landlord” occurs, it is understood
and agreed that it shall mean Landlord’s assigns, employees, contractors, and
agents.
23. Tenant
shall, when using the common parking facilities in and around the Complex,
observe and obey all signs regarding fire lanes and no parking zones, and when
parking shall always park between the designated lines. Landlord reserves the
right to tow away, at the expense of the owner, any vehicle which is improperly
parked or parked in a no parking zone. All vehicles shall be parked at the
sole
risk of the owner, and Landlord assumes no responsibility for any damage to
or
loss of vehicles.
24. In
case
of invasion, mob, riot, public excitement, or other commotion, Landlord reserves
the right to prevent access to the Complex during the continuance of the same
by
closing the doors or otherwise, for the safety of the tenants or the protection
of the Project and the property therein. Landlord shall in no case be liable
for
damages for any error or other action taken with regard to the admission to
or
exclusion from the Complex of any person.
Exhibit
D
- Page 2
RULES & REGULATIONS
EXHIBIT
E
SITE
PLAN
OF THE COMPLEX
Landlord's
Initials:
Tenant's
Initials: _____
