LEASE
DATED APRIL 20,1998
BY AND BETWEEN
XXXXXX XX ASSOCIATES, L.P.
as Landlord
and
IMEDIA CORPORATION
as Tenant
AFFECTING PREMISES COMMONLY KNOWN AS
000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx
MOUNTAIN VIEW TECHNOLOGY PARK
SUMMARY OF BASIC LEASE TERMS
1. Definitions
1.1 General
1.2 Additional Rent
1.3 Address for Notices
1.4 Agents
1.5 Agreed Interest Rate
1.6 Base Monthly Rate
1.7 Building
1.8 Commencement Date
1.9 Common Area
1.10 Common Operating Expenses
1.11 CPI
1.12 Effective Date
1.13 Event of Tenant's Default
1.14 Hazardous Materials
1.15 Insured and Uninsured Peril
1.16 Law
1.17 Lease
1.18 Lease Term
1.19 Lender
1.20 Permitted Use
1.21 Premises
1.22 Project
1.23 Private Restrictions
1.24 Real Property Taxes
1.25 Scheduled Commencement Date
1.26 Security Instrument
1.27 Summary
1.28 Tenant's Alterations
1.29 Tenant's Share
1.30 Trade Fixtures
2. Demise, Construction and Acceptance
2.1 Xxxxxx of Premises
2.2 Commencement Date
2.3 Constructions of Improvements
2.4 Delivery and Acceptance of Possession
2.5 Early Occupancy
3. Rent
3.1 Base Monthly Rent
3.2 Additional Rent
3.3 Payment of Rent
3.4 Late Charge and Interest on Rent in Default
3.5 Security Deposit
4. Use of Premises
4.1 Limitations on Use
4.2 Compliance with Regulations
4.3 Outside Areas
4.4 Signs
4.5 Parking
4.6 Rules and Regulations
5. Trade Fixtures and Alterations
5.1 Trade Fixtures
5.2 Tenant's Alterations
5.3 Alterations Required by Law
5.4 Amortization of Certain Capitol Improvements
5.5 Mechanic's Liens
5.6 Taxes on Tenant's Property
6. Repair and Maintenance
6.1 Tenant's Obligation to Maintain
6.2 Landlord's Obligation to Maintain
6.3 Control of Common Area
7. Waste Disposal and Utilities
7.1 Waste Disposal
7.2 Hazardous Materials
7.3 Utilities
7.4 Compliance with Governmental Regulations
8. Common Operating Expenses
8.1 Tenant's Obligation to Reimburse
8.2 Common Operating Expenses Defined
8.3 Real Property Taxes Defined
9. Insurance
9.1 Tenants Insurance
9.2 Landlord's Insurance
9.3 Tenant's Obligation to Reimburse
9.4 Release and Waiver of Subrogation
10. Limitation on Landlord's Liability and Indemnity
10.1 Limitation of Landlord's Liability
10.2 Limitation on Tenant's Recourse
10.3 Indemnification of Landlord
11. Damage to Premises
11.1 Landlord's Duty to Restore
11.2 Landlord's Right to Terminate
11.3 Tenant's Right to Terminate
11.4 Abatement of Rent
12. Condemnation
12.1 Landlord's Termination Right
12.2 Tenant's Termination Right
12.3 Restoration and Abatement of Rent
12.4 Temporary Taking
12.5 Division of Condemnation Award
13. Default and Remedies
13.1 Events of Tenant's Default
13.2 Landlord's Remedies
13.3 Waiver
13.4 Limitation on Exercise of Rights
13.5 Waiver by Tenant of Certain Remedies
14. Assignment and Subletting
14.1 Transfer by Tenant
14.2 Transfer by Landlord
15. General Provisions
15.1 Landlord's Right to Enter
15.2 Surrender of the Premises
15.3 Holding Over
15.4 Subordination
15.5 Mortgagee Protection and Attornment
15.6 Estoppel Certificates and Financial Statements
15.7 Reasonable Consent
15.8 Notices
15.9 Attorneys' Fees
15.10 Corporate Authority
15.11 Miscellaneous
15.12 Termination by Exercise of Right
15.13 Brokerage Commissions
15.14 Force Majeure
15.15 Entire Agreement
SUMMARY OF BASIC LEASE TERMS
SECTION TERMS
(LEASE REFERENCE)
A. Lease Reference Date: April 20, 1998
(Introduction)
B. Landlord: Xxxxxx XX Associates, L.P.
(Introduction)
C. Tenant: Imedia Corporation
(Introduction)
D. Premises: That area consisting of
approximately 9,400 square
feet of gross leasable area,
the address of which is 000
Xxxxx Xxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx, and which is
shown on Exhibit A.
E. Project: The land and improvements
shown on
(1.22) Exhibit A consisting of
seven buildings, the
aggregate gross leasable
area of which is 134.866
square feet.
F. Building: The building in which the
Premises are
(1.7) located containing 23,800
square feet of gross
leasable area.
G. Tenant's Share: 39.5%
H. Tenant's Allocated Parking Stalls: 33
stalls
(4.5)
I. Scheduled Commencement Date: May 15,
1998
(1.26)
J. Lease Term: Sixty (60) calendar months
(1.18)
K. Base Monthly Rent -
(3.1)
Time Period Monthly Rent
Months 1 - 12 $17.860
Months 13 - 24 $18,330
Months 25 - 36 $18,800
Months 37 - 48 $19,270
Months 49 - 60 $19.740
L. Prepaid Rent: $17,390
(3.4)
M. Security Deposit: #364.730
(3.6)
N. Permitted Use: General office, software
development
(4.1) and light manufacturing
O. Tenant's Liability Insurance Minimum:
$3,000,000
(9.1)
P. Landlord's Address: 000 Xxxx Xxxxxx,
00xx Xxxxx
(1.3) Xxx Xxxxxxxxx, XX
00000
Q. Tenant's Address: 188
Embaracadero
(1.3) Xxx Xxxxxxxxx, XX
00000
R. Retained Real Estate Brokers:
Cornish &
Xxxxx
(15.13) Commercial
S. Lease: This Lease includes the
summary of the Basic
(1.17) Lease Terms, the Lease, and the
following exhibits: Exhibit A
(site plan of the Project
containing description of the
Premises), Exhibit B (Improvement
Agreement), Exhibit C (Approved
Specifications), Exhibit D
(commencement Memorandum), Exhibit
E (sign criteria), Exhibit F (form
of subordination agreement) and
Exhibit G (Hazardous Materials
questionnaire), and:
The foregoing Summary is hereby incorporated into and made a part
of this Lease. Each reference in this Lease to any term of the Summary
shall mean the respective information set forth above and shall be
construed to incorporate all of the terms provided under the particular
paragraph pertaining to such information. In the event of any conflict
between the Summary and the Lease, the Summary shall control.
LEASE
THIS LEASE is dated as of the lease reference date
specified in Section A of the Summary and is made by and between the
party identified as Landlord in Section B of the Summary and the party
identified as Tenant in Section C of the Summary.
1. Definitions.
1.1. General. Any initially capitalized term that is
given a special meaning by this Article 1. the Summary, or by any other
provision of this Lease (including the exhibits attached hereto) shall
have such meaning when used in this Lease or any addendum or amendment
hereto unless otherwise clearly indicated by the context.
1.2 Additional Rent. The term "Additional Rent" is
defined in 3.2.
1.3 Address for Notices. The term "Address for Notices"
shall mean the addresses set forth in Sections P and Q of the Summary.
1.4. Agents. The term "Agents" shall mean the following:
(i) with respect to Landlord or Tenant, the agents, employees,
contractors, and invitees of such party; and (ii) in addition with
respect to Tenant, Tenant's subtenants and their respective agents,
employees, contractors, and invitees.
1.5 Agreed Interest Rate. The term "Agreed Interest Rate"
shall mean that interest rate determined as of the time it is to be
applied that is equal to the lesser of (i) five percent (5%) in excess
of the reference rate (or prime rate) of the Bank of America, N.T. & S.
A. as it may be adjusted from time to time, or (ii) the maximum
interest rate permitted by law.
1.6 Base Monthly Rent. The term "Base Monthly Rent"
shall mean the fixed monthly rent payable by Tenant pursuant to 3.1
which is specified in Section K of the Summary.
1.7 Building. The term "Building" shall mean the building
in which the Premises are located which Building is identified in
Section F of the Summary, the gross leasable area of which is referred
to herein as the "Building Gross Leasable Area."
1.8 Commencement Date: The term "Commencement Date" is
the date the Lease Term commences, which term is defined in 2.2.
1.9 Common Area. The term "Common Area" shall mean all
areas and facilities within the Project that are not designated by
Landlord for the exclusive use of Tenant or any other lessee or other
occupant of the Project, including the parking areas, access and
perimeter roads, pedestrian sidewalks, landscaped areas, trash
enclosures, recreation areas and the like.
1.10 Common Operating Expenses: The Term "Common
Operating Expenses" is defined in 8.2.
1.11 CPI. The term "CPI" shall refer to the Consumer
Price Index, All Urban Consumers, Subgroup "All Items," for the San
Francisco-Oakland-San Xxxx metropolitan area (base year 1982-84 equals
100), which is presently being published monthly by the United States
Department of Labor, Bureau of Labor Statistics. However, if this
Consumer Price Index is changed so that the base year is altered from
that used as the Commencement Date, the Consumer Price Index shall be
converted in acorance with the conversion factor published by the
United States Department of Labor, Bureau of Labor Statistics to obtain
the same results that would have been obtained had the base year not
been changed. If no conversion factor is available, or if the Consumer
Price Index is otherwise changed, revised or discontinued for any
reason, there shall be substituted in lieu thereof and the term
"Consumer Price Index" shall thereafter refer to the most nearly
comparable official price index of the United States government in
order to obtain substantially the same result as would have been
obtained had the original Consumer Price Index not been discontinued,
revised or changed, which alternative index shall be selected by
Landlord and shall be subject to Tenant's written approval.
1.12 Effective Date. The term "Effective Date" shall mean
the date the last signatory to this Lease whose execution is required
to make it binding on the parties hereto shall have executed this
Lease.
1.13 Event of Tenant's Default. The term "Event of
Tenant's Default" is defined in 13.1.
1.14 Hazardous Materials. The terms "Hazardous Materials"
and "Hazardous Materials Laws" are defined in 7.2E.
1.15 Insured and Uninsured Peril. The terms "Insured
Peril" and "Uninsured Peril" are defined in 11.2E.
1.16 Law. The term "Law" shall man any judicial decision,
statute, constitution, ordinance, resolution, regulation, rule,
administrative order, or other requirement of any municipal, county,
state, federal or other government agency or authority having
jurisdiction over the parties to this Lease or the Premises, or both,
in effect either at the Effective Date or any time during the Lease
Term.
1.17 Lease. The term "Lease" shall mean the Summary and
all elements of this Lease identified in Section S of the Summary, all
of which are attached hereto and incorporated herein by this reference.
1.18 Lease Term. The term "Lease Term" shall mean the
term of this Lease which shall commence on the Commencement Date and
continue for the period specified in Section J of the Summary.
1.19 Lender. The term "Lender" shall mean any
beneficiary, mortgagee, secured party, lessor, or other holder of any
Security Instrument.
1.20 Permitted Use. The term "Permitted Use" shall mean
the use specified in Section N of the Summary.
1.21 Premises. The term "Premises" shall mean that
building area described in Section D of the Summary that is within the
Building.
1.22 Project. The term "Project" shall mean that real
property and the improvements thereon which are specified in Section E
of the Summary, the aggregate gross leasable area of which is referred
to herein as the "Project Gross Leasable Area."
1.23 Private Restrictions. The term "Private
Restrictions" shall mean all recorded covenants, conditions and
restrictions, private agreements, reciprocal easement agreements, and
any other recorded instruments affecting the use of the Premises which
are recorded after the Effective Date and are approved by Tenant.
1.24 Real Property Taxes. The term "Real Property Taxes"
is defined in 8.3.
1.25 Scheduled Commencement Date. The term "Scheduled
Commencement Date" shall mean the date specified in Section I of the
Summary.
1.26 Security Instrument. The term "Security Instrument"
shall mean any underlying lease, mortgage or deed of trust which now or
hereafter affects the Project, and any renewal, modification,
consolidation, replacement or extension thereof.
1.27 Summary: The term "Summary" shall mean the Summary
of Basic Lease Terms executed by Landlord and Tenant that is part of
this Lease.
1.28 Tenant's Alterations. The term "Tenant's
Alterations" shall mean al improvements, additions, alterations, and
fixtures installed in the Premises by Tenant at its expense which are
not Trade Fixtures.
1.29 Tenant's Share. The term "Tenant's Share" shall mean
the percentage obtained by dividing Tenant's Gross Leasable Area by the
Building Gross Leasable Area, which as of the Effective Data is the
percentage identified in Section G of the Summary.
1.30 Trade Fixtures. The term "Trade Fixtures" shall mean
(i) Tenant's inventory, furniture, signs, and business equipment, and
(ii) anything affixed to the Premises by Tenant at its expense for
purposes of trade, manufacture, ornament or domestic use (except
replacement of similar work or material originally installed by
Landlord) which can be removed without material injury to the Premises
unless such thing has, by the manner in which it is affixed, become an
integral part of the Premises.
2. Demise, Construction, and Acceptance.
2.1 Demise of Premises. Landlord hereby leases to Tenant,
and Tenant leases from Landlord, for the Lease Term upon the terms and
conditions of this Lease, the Premises for Tenant's own use in the
conduct of Tenant's business together with (i) the non-exclusive right
to use the number of Tenant's Allocated Parking Stalls within the
Common Area (subject to the limitations set forth in 4.5, and (ii) the
non-exclusive right to use the Common Area for ingress to and egress
from the Premises. Landlord reserves the use of the exterior walls,
the roof and the area beneath and above the Premises, together with the
right to install, maintain, use, and replace ducts, wires, conduits and
pipes leading through the Premises in locations which will not
materially interfere with Tenant's use of the Premises.
2.2 Commencement Date. The Scheduled Commencement Date
shall be an estimate of the actual commencement Date, and the term of
this Lease shall begin on the first to occur of the following, which
shall be the "Commencement Date": (i) the date Landlord offers to
deliver possession of the Premises to Tenant following substantial
completion of al improvements to be constructed by Landlord pursuant to
2.3 except for punchlist items which do not prevent Tenant from using
the Premises for the Permitted Use and such work as Landlord is
required to perform but cannot complete until Tenant performs necessary
portions of construction work it has elected or is required to do; or
(ii) the date Tenant enters into occupancy of the Premises.
Notwithstanding the foregoing, if the date described in the foregoing
item (i) (the "Delivery Date") is delayed as a result of any Tenant
Delay, defined below, then the Delivery Date shall be deemed to be the
date on which the Delivery Date would have occurred but for such Tenant
Delay, as reasonably determined by Landlord. The term "Tenant Delay"
shall mean any delay in the completion of construction fo improvements
by Landlord pursuant to 2.3 caused by any action or omission of
Tenant, or Tenant's employees, agents, contractors, including without
limitation, the following: (i) Tenant's failure to furnish information
to Landlord for the preparation of plans and drawings for such
construction; (ii) Tenant's request for special materials, finishes or
installations which are not readily available, (iii) Tenant's failure
to reasonably approve plans and working drawings in accordance with the
terms of Exhibit B and Exhibit C; (iv) Tenant's change requests
pursuant to Exhibit B and Exhibit C; and (v) interference with
Landlord's work caused by Tenant or Tenant's employees, agents or
contractors.
2.3 Construction of Improvements. Prior to the
Commencement Date, Landlord shall construct certain improvements that
shall constitute or become part of the Premises if required by, and
then in accordance with, the terms of Exhibit B and Exhibit C.
2.4 Delivery and Acceptance of Possession. If Landlord is
unable to deliver possession of the Premises to Tenant on or before the
Scheduled Commencement Date for any reason whatsoever, this Lease shall
not be void or voidable for a period of ninety (90) days thereafter,
and Landlord shall not be liable to Tenant for any loss or damage
resulting therefrom. Tenant shall accept possession and enter into
good faith occupancy of the entire Premises and commence the operation
of its business therein within thirty (30) days after the Commencement
Date. Tenant acknowledges that it has had an opportunity to conduct,
and has conducted, such inspections of the Premises as it deems
necessary to evaluate its condition. Tenant agrees to accept
possession of the Premises in its then existing condition, "as is;"
provided, however, Tenant may notify Landlord in writing within thirty
(30) days after Tenant takes possession of the Premises of any defects
in the Premises claimed by Tenant. Except for defects stated in such
notice, Tenant shall be conclusively presumed to have accepted the
Premises in the condition existing on the ate Tenant first takes
possession, and to have waived all claims relating to the condition of
the Premises. Except as to improvements to be constructed by Landlord
pursuant to 2.3, Landlord makes no representation that the Premises as
of the date hereof and as of the commencement Date does or will comply
with the Americans with Disabilities Act of 1990 (42 U.S.C. Sections
12101 - 12213), or any regulations promulgated thereunder (the "ADA").
At the time Landlord delivers possession of the Premises to Tenant,
Landlord and Tenant shall together execute a commencement memorandum in
the form attached as Exhibit D, appropriately completed. Landlord
shall have no obligation to deliver possession, nor shall Tenant be
entitled to take occupancy, of the Premises until such commencement
memorandum has been executed, and Tenant's obligation to pay Base
Monthly Rent and Additional Rent shall not be excused or delayed
because of Tenant's failure to exercise such commencement memorandum.
2.5 Early Occupancy. If Tenant enters or permits its
contractors to enter the Premises prior to the Commencement Date with
the written permission of Landlord, it shall do so upon all of the
terms of this Lease (including its obligations regarding indemnity and
insurance) except those regarding the obligation to pay rent, which
shall commence on the Commencement Date.
3. Rent.
3.1 Base Monthly Rent. Commencing on the Commencement
Date and continuing throughout the Lease Term, Tenant shall pay to
Landlord the Base Monthly Rent set forth in Section K of the Summary.
3.2 Additional Rent. Commencing on the Commencement date
and continuing throughout the Lease Term, Tenant shall pay the
following as additional rent (the "Additional Rent"): (i) any late
charges or interest due Landlord pursuant to 3.4; (ii) Tenant's Share
of common Operating Expenses as provided in 8.1; (iii) Landlord's
share of any Subrent received by Tenant upon certain assignments and
sublettings as required by 14.1; (iv) any legal fees and costs due
Landlord pursuant to 15.9; and (v) any other charges due Landlord
pursuant to this Lease.
3.3 Payment of Rent. Concurrently with the execution of
this Lease by both parties, Tenant shall pay to Landlord the amount set
forth in Section L of the Summary as prepayment of rent for credit
against the first installment(s) of Base Monthly Rent. All rent
required to be paid in monthly installments shall be paid in advance on
the first day of each calendar month during the Lease Term. If Section
K of the Summary provides that the Base Monthly Rent is to be increased
during the Lease Term and if the date of such increase does not fall on
the first day of a calendar month, such increase shal become effective
on the first day of the next calendar month. All rent shall be paid in
lawful money of the United States, without any abatement, deduction or
offset whatsoever (except as specifically provided in 11.4 and 12.3),
and without any prior demand therefor. Rent shall be paid to Landlord
at its address set forth in Section P of the Summary, or at such other
place as Landlord may designate from time to time. Tenant's obligation
to pay Base Monthly Rent and Tenant's Share of Common Operating
Expenses shall be prorated at the commencement and expiration of the
Lease Term.
3.4 Late Charge and Interest on Rent in Default. If any
Base Monthly Rent or Additional Rent is not received by Landlord from
Tenant within five (5) days after the due date for such payment, then
Tenant shall immediately pay to Landlord a late charge equal to five
percent (5%) of such delinquent rent as liquidated damages for Tenant's
failure to make timely payment. In no event shall this provision for a
late charge be deemed to grant to Tenant a grace period or extension of
time within which to pay any rent or prevent Landlord from exercising
any right or remedy available to Landlord upon Tenant's failure to pay
any rent due under this Lease in a timely fashion, including any right
to terminate this Lease pursuant to 13.2B. If any rent remains
delinquent for a period in excess of 30 days then, in addition to such
late charge, Tenant shall pay to Landlord interest on any rent that is
not paid when due tat the Agreed Interest Rate following the date such
amount became due until paid.
3.5 Security Deposit
A. On the Effective Date, Tenant shall deposit with
Landlord the amount set forth in Section M of the Summary as security
for the performance by Tenant of its obligations under this Lease, and
not as prepayment of rent (the "Security Deposit"). At Tenant's
option, the Security Deposit may be in the form of an irrevocable
standby letter of credit ("L-C"). Landlord may from time to time apply
such portion of the Security Deposit as is reasonably 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 termination of the lease; and (iv) to remedy
any other default of Tenant to the extent permitted by Law 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 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.
B. So long as there has not occurred any Event of
Tenant's Default under this Lease, the Security Deposit shall be
reduced by $30,082 on the first anniversary of the Commencement Date
and on each anniversary thereafter (each, a "Reduction Date"). If the
Security Deposit is in the form of cash, Landlord shall pay to Tenant
the excess amount of the
Security Deposit within fifteen (15) days after the Reduction Date or
if the Security Deposit is in the form of an L-C, then Tenant may, not
less than fifteen (15) days after the Reduction Date, replace the L-C
with an L-C in an amount equal to the reduced amount of the Security
Deposit.
C. If at any time Tenant elects to deposit an L-C as
the Security Deposit, the L-C shall be issued by a bank reasonably
acceptable to Landlord, shall be issued for a term of at least twelve
(12) months and shall be in a form and with such content reasonably
acceptable to Landlord. Tenant shall either replace the expiring L-C
with an L-C in an amount equal to the original L-C or renew the
expiring L-C, in any event no later than thirty (30) days prior to the
expiration of the term of the L-C then in effect. If Tenant fails to
deposit a replacement L-C or renew the expiring L-C, Landlord shall
have the right to draw upon the expiring L-C for the full amount
thereof and hold the same as the Security Deposit; provided, however,
that if Tenant provides a replacement L-C that meets the requirements
of this 3.6C, then Landlord shall return to Tenant promptly in cash
the amount of the L-C that had been drawn upon by Landlord. If
Landlord draws upon the L-C as a result of an Event of Tenant's Default
and Tenant subsequently provides a replacement L-C, Landlord shall
return to Tenant promptly in cash that amount of the L-C that had been
drawn upon by Landlord and not used. The L-C shall not be mortgaged,
assigned or encumbered in any manner whatsoever by Tenant without the
prior written consent of Landlord. The use, application or retention
of the L-C, or any portion thereof, by Landlord shall not prevent
Landlord from exercising any other right or remedy provided by this
Lease or by Law, it being intended that Landlord shall not first be
required to proceed against the L-C, and such use, application or
retention shall not operate as a limitation on any recovery to which
Landlord may otherwise be entitled. The L-C shall be payable at sight
upon presentation of a signed statement by a duly appointed
representative of Landlord certifying that an Event of Tenant's Default
under the Lease exists and continues Landlord shall return the L-C (or
cash held by Landlord as the Security Deposit) to Tenant on the
expiration of the Lease provided no Event of Tenant's Default then
exists and continues.
4. Use of Premises
4.1 Limitation on Use. Tenant shall use the Premises
solely for the Permitted Use specified in Section N of the Summary.
Tenant shall not do anything in or about the Premises which will (i)
cause structural injury to the Building, or (ii) cause damage to any
part of the Building except to the extent reasonably necessary for the
installation of Tenant's Trade Fixtures and Tenant's Alterations, and
then only in a manner which has been first approved by Landlord in
writing. 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. Tenant shall not
attach, hang or suspend anything from the ceiling, roof, walls or
columns of the Building or set any load on the floor in excess of the
load limits for which such items are designated not operate hard wheel
forklifts within the Premises. 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 Law. Except as approved by Landlord, Tenant shall not change the
exterior of the Building or install any equipment or antennas on or
make any penetrations of the exterior or roof or the Building. Tenant
shall not commit any waste in or about the Premises, and Tenant shall
keep the Premises in a neat, clean, attractive and orderly condition,
free of any nuisances. If Landlord designates a standard window
covering for use throughout the Building, Tenant shall use this
standard window covering to cover all windows in the Premises. Tenant
shall not conduct on any portion of the Premises or the Project any
sale of any kind, including any public or private auction, fire sale,
going out-of-business sale, distress sale or other liquidation sale.
4.2 Compliance with Regulations. Tenant shall not use
the Premises in any manner which violates any Laws or Private
Restrictions which affect the Premises. Tenant shall abide by and
promptly observe and comply with al Laws and Private Restrictions.
Tenant shall not use the Premises in any manner which will cause a
cancellation of any insurance policy covering Tenant's Alterations or
any improvements installed by Landlord at its expense or which poses an
unreasonable risk of damage or injury to the Premises. Tenant shall
not sell, or permit to be kept, used, or sold in or about the Premises
any article which may be prohibited by the standard form of fire
insurance policy. Tenant shall comply with all reasonable requirements
of any insurance company, insurance underwriter, or Board of Fire
Underwriters which are necessary to maintain the insurance coverage
carried by either Landlord or Tenant pursuant to this Lease.
4.3 Outside Areas. No materials, supplies, tanks or
containers, equipment, finished products or semi-finished products, raw
materials, inoperable vehicles or articles of any nature shall be
stored upon or permitted to remain outside of the Premises except in
fully fenced and screened areas outside the Building which have been
designed for such purpose and have been approved in writing by Landlord
for such use by Tenant
4.4 Signs. Tenant shall not place on any portion of
the Premises any sign, placard, lettering in or on windows, banner,
displays or other advertising or communicative material which is
visible from the exterior of the Building without the prior written
approval of Landlord. all such approved signs shall strictly conform
to all Laws, Private Restrictions, and Landlord's sign criteria
attached as Exhibit E and shall be installed at the expense of Tenant.
Tenant shall maintain such signs in good condition and repair.
4.5 Parking. Tenant is allocated and shall have the
non-exclusive right to use not more than the number of Tenant's
Allocated Parking Stalls contained within the Project described in
Section H of the Summary for its use and the use of Tenant's Agents,
the location of which may be designated from time to time by Landlord.
Tenant shall not at any time use more parking spaces than the number so
allocated to Tenant or park its vehicles or the vehicles of others in
any portion of the Project not designated by Landlord as a non-
exclusive parking area. Tenant shall not have the exclusive right to
use any specific parking space. Landlord reserves the right, after
having given Tenant reasonable notice, to have any vehicles owned by
Tenant or Tenant's Agents utilizing parking spaces in excess of the
parking spaces allowed for Tenant's use to be towed away at Tenant's
cost. All trucks and delivery vehicles shall be (i) parked at the rear
of the Building, (ii) loaded and unloaded in a manner which does not
interfere with the business of other occupants of the Project, and
(iii) permitted to remain on the Project, only so long as is reasonably
necessary to complete loading and unloading. In the event Landlord
elects or is required by any Law to limit or control parking in the
Project, whether by validation of parking tickets or any other method
of assessment, Tenant agrees to participate in such validation or
assessment program under such reasonable rules and regulations as are
from time to time established by Landlord. Landlord shall have no
obligation to monitor or enforce any rules regarding the use of parking
stalls in the Project.
4.6 Rules and Regulations. Landlord may from time to
time promulgate reasonable and nondiscriminatory rules and regulations
applicable to all occupants of the Project for the care and orderly
management of the Project and the safety of its tenants and invitees.
Such rules and regulations shall be binding upon Tenant upon delivery
of a copy thereof to Tenant, and Tenant agrees to abide by such rules
and regulations. If there is a conflict between the rules and
regulations and any of the provisions of this Lease, the provisions of
this Lease shall prevail. Landlord shall not be responsible for the
violation by any other tenant of the Project of any such rules and
regulations.
5. Trade Fixtures and Alterations
5.1 Trade Fixtures. Throughout the Lease Term, Tenant
may provide and install, and shall maintain in good condition, any
Trade Fixtures requires in the conduct of its business in the Premises.
All Trade Fixtures shall remain Tenant's property.
5.2 Tenant's Alterations. Construction by Tenant of
Tenant's Alterations shall be governed by the following:
A. Tenant shall not construct any Tenant's
Alterations or otherwise alter the Premises without Landlord's prior
written approval. Tenant shall not construct any Tenant's Alterations
until Landlord has approved in writing the plans and specifications
therefor, and such Tenant's Alterations shall be constructed
substantially in compliance with such approved plans and specifications
by a licensed contractor first approved by Landlord. Tenant shall pay
to Landlord on demand all costs and expenses incurred by Landlord in
connection with the review of such plans and specifications. All
Tenant's Alterations construction by Tenant shall be constructed by a
licensed contractor in accordance with all Laws using new materials of
good quality.
B. Tenant shall not commence construction of any
Tenant's Alterations until(i) al required governmental approvals and
permits have been obtains, (ii) all requirements regarding insurance
imposed by this Lease have been satisfied, (iii) Tenant has given
Landlord at least five days' prior written notice of its intention to
commence such construction, and (iv) if reasonably requested by
Landlord, Tenant has obtained contingent liability and broad form
builders' risk insurance in an amount reasonable satisfactory to
Landlord if there are any perils relating to the proposed construction
not covered by insurance carried pursuant to Article 9.
C. All Tenant's Alterations shall remain the
property of Tenant during the Lease Term but shall not be altered or
removed from the Premises. At the expiration or sooner termination of
the Lease Term, all Tenant's Alterations shall be surrendered to
Landlord as part of the realty and shall then become Landlord's
property, and Landlord shall have no obligation to reimburse Tenant for
al or any portion of the value or cost thereof; provided, however, that
if Landlord requires Tenant to remove any Tenant's Alterations, Tenant
shall so remove such Tenant's Alterations prior to the expiration or
sooner termination of the Lease Term. Notwithstanding the foregoing,
Tenant shall not be obligated to remove any Tenant's Alterations with
respect to which the following is true: (i) Tenant was required, or
elected, to obtain the approval of Landlord to the installation of the
Leasehold Improvement in question; (ii) at the time Tenant requested
Landlord's approval, Tenant requested of Landlord in writing that
Landlord inform Tenant of whether or not Landlord would require Tenant
to remove such Leasehold Improvement at the expiration of the Lease
Term; and (iii) at the time Landlord granted its approval, it did not
inform Tenant that it would require Tenant to remove such Leasehold
Improvement at the expiration of the Lease Term.
5.3 Alterations Required by Law. Tenant shall make any
alteration, addition or change of any sort to the Premises that is
required by any Law because of (i) Tenant's particular use or change of
use of the Premises; (ii) Tenant's application for any permit or
governmental approval; or (iii) Tenant's construction or installation
of any Tenant's Alterations or Trade Fixtures. Any other alteration,
addition, or change required by Law which is not the responsibility of
Tenant pursuant to the foregoing shall be made by Landlord (subject to
Landlord's right to reimbursement from Tenant specified in 5.4).
5.4 Amortization of Certain Capital Improvements. Tenant
shall pay Additional Rent in the event Landlord reasonably elects or is
required to make any of the following kinds of capital improvements to
the Project and the cost thereof is not reimbursable as a Common
Operating Expense: (i) capital improvements required to be constructed
in order to comply with any law (excluding any Hazardous Materials Law)
not in effect or applicable to the Project as of the Effective Date,
(ii) modification of exiting or construction of additional capital
improvements or building service equipment for the purpose of reducing
the consumption of utility services or Common Operating Expenses of the
Project; (iii) replacement of capital improvements or building service
equipment existing as of the Effective Date when required because of
normal wear and tear; and (iv) restoration of any part of the Project
that has been damaged by any peril to the extent the cost thereof is
not covered by insurance proceeds actually recovered by landlord up to
a maximum amount per occurrence of ten percent (10%) of the then
replacement cost of the Project. The amount of Additional Rent Tenant
is to pay with respect to each such capital improvement shall be
determined as follows:
A. All costs paid by Landlord to construct such
improvements (including financing costs) shall be amortized over the
useful life of such improvement (as reasonably determined by Landlord
in accordance with generally accepted accounting principles) with
interest on the unamortized balance at the then prevailing market rate
Landlord would pay if it borrowed funds to construct such improvements
from an institutional lender, and Landlord shall inform Tenant of the
monthly amortization payment required to so amortize such costs, and
shall also provide Tenant with the information upon which such
determination is made.
B. As Additional Rent, Tenant shall pay at the same
time the Base Monthly Rent is due an amount equal to Tenant's Share of
that portion of such monthly amortization payment fairly allocable to
the Building (as reasonably determined by Landlord) for each month
after such improvements are completed until the first to occur of (i)
the expiration of the Lease Term (as it may be extended), or (ii) the
end of the term over which such costs were amortized.
5.5 Mechanic's Liens. Tenant shall keep the Project free
from any liens and shall pay when due all bills arising out of any work
performed, materials furnished, or obligations incurred by Tenant or
Tenant's Agents relating to the Project. If any claims of lien is
recorded (except those caused by Landlord or Landlord's Agents), Tenant
shall bond against or discharge the same within ten (10) days after the
same has been recorded against the Project. Should any lien be filed
against the Project or any action be commenced affecting title to the
Project, the party receiving notice of such lien or action shall
immediately give the other party written notice thereof.
5.6 Taxes on Tenant's Property. Tenant shall pay before
delinquency any and all taxes, assessments, license fees and public
charges levied, assessed or imposed against Tenant or Tenant's estate
in this Lease or the property of Tenant situated within the Premises
which become due during the Lease Term. If any tax or other charge is
assessed by any governmental agency because of the execution of this
Lease, such tax shall be paid by Tenant. On demand by Landlord, Tenant
shal furnish Landlord with satisfactory evidence of these payments.
6. Repair and Maintenance.
6.1 Tenant's Obligation to Maintain. Except as otherwise
provided in 6.2, 11.1, and 12.3, Tenant shall be responsible for the
following during the Lease Term:
A. Tenant shall clean and maintain in good order,
condition, and repair and replace when necessary the Premises and every
part thereof, through regular inspections and servicing, including, but
not limited to: (i) all plumbing and sewage facilities (including all
sinks, toilets, faucets and drains), and all ducts, pipes, vents or
other parts of the HVAC or plumbing system; (ii) all fixtures, interior
walls, floors, carpets and ceilings; (iii) all windows, doors,
entrances, plate glass, showcases and skylights (including cleaning
both interior and exterior surfaces); (iv) all electrical facilities
and all equipment (including all lighting fixtures, lamps, bulbs,
tubes, fans, vents, exhaust equipment and systems); (v) any automatic
fire extinguisher equipment in the Premises.
B. With respect to utility facilities serving the
Premises (including electrical wiring and conduits, gas lines, water
pipes, and plumbing and sewage fixtures and pipes), Tenant shall be
responsible for the maintenance and repair of any such facilities which
serve only the Premises, including all such facilities that are within
the walls or floor, or on the roof of the Premises, and any part of
such facility that is not within the Premises, but only up to the point
where such facilities join a main or other junction (e.g., sewer main
or electrical transformer) from which such utility services are
distributed to other parts of the Project as well as to the Premises.
Tenant shall replace any damaged or broken glass in the Premises
(including all interior and exterior doors and windows) with glass of
the same kind, size and quality. Tenant shall repair any damage to the
Premises (including exterior doors and windows) caused by vandalism or
any unauthorized entry.
C. Tenant shall maintain continuously throughout the
Lease Term a service contract for the washing of all windows (both
interior and exterior surfaces) in the Premises with a contractor
approved by Landlord, which contract provides for the periodic washing
of all such windows at least once every sixty (60) days during the
Lease Term. Tenant shall furnish Landlord with a copy of such service
contract, which shall provide it they may not be canceled or changed
without at least thirty (30) days' prior written notice to Landlord.
D. All repairs and replacements required of Tenant
shall be promptly made with new materials of like kind and quality. If
the work affects the structural parts of the Building or if the
estimated cost of any item of repair or replacement is in excess of the
Permitted Tenant's Alterations Limit, the Tenant shall first obtain
Landlord's written approval of the scope of the work, plans therefor,
materials to be used, and the contractor.
6.2 Landlord's Obligation to Maintain.
A. Landlord shall repair, maintain and operate the
Common Area and repair and maintain the roof, exterior and structural
parts of the building(s) located on the Project so that the same are
kept in good order and repair. If there is central HVAC or other
building service equipment and/or utility facilities serving portions
of the Common Area and/or both the Premises and other parts of the
Building, Landlord shall maintain and operate (and replace when
necessary) such equipment. Landlord shall not be responsible for
repairs required by an accident, fire or other peril or for damage
caused to any part of the Project by any act or omission of Tenant or
Tenant's Agents except as otherwise required by Article 11. Landlord
may engage contractors of its choice to perform the obligations
required of it by this Article, and the necessity of any expenditure to
perform such obligations shall be at the sole discretion of Landlord.
B. Landlord shall also (i) maintain, repair and replace
when necessary all HVAC equipment which services only the Premises, and
shall keep the same in good condition through regular inspection and
servicing, and (ii) maintain continuously throughout the Lease Term a
service contract for the maintenance of al such HVAC equipment with a
licensed HVAC repair and maintenance contractor, which contract shall
provide for the periodic inspection and servicing of the HVAC equipment
at least once every ninety (90) days during the Lease Term.
6.3 Control of Common Area. Landlord shall at all times
have exclusive control of the Common Area. Landlord shall have the
right, without the same constituting an actual or constructive eviction
and without entitling Tenant to any abatement of rent, to: (i) close
any part of the Common Area to whatever extent required in the opinion
of Landlord's counsel to prevent a dedication thereof or the accrual of
any prescriptive rights therein; (ii) temporarily close the Common Area
to perform maintenance or for any other reason deemed sufficient by
Landlord; (iii) change the shape, size, location and extent of the
Common Area; (iv) eliminate from or add to the Project any land or
improvement, including multi-deck parking structures; (v) make changes
to the Common Area including, without limitation, changes in the
location of driveways, entrances, passageways, doors and doorways,
elevators, stairs, restrooms, exits, parking spaces, parking areas,
sidewalks or the direction of the flow of traffic and the site of the
Common Area; (vi) remove unauthorized persons from the Project; and/or
(vii) change the name or address of the Building or Project. Tenant
shall keep the Common Area clear of al obstructions created or
permitted by Tenant. If in the opinion of Landlord unauthorized
persons are using any of the Common Area by reason of the presence of
Tenant in the Building, Tenant, upon demand of Landlord, shall restrain
such unauthorized use by appropriate proceedings. In exercising any
such rights regarding the Common Area, (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 Area
in a manner that would materially interfere with Tenant's use of the
Premises without first obtaining Tenant's consent. Landlord shall have
no obligation to provide guard services or other security measures for
the benefit of the Project. Tenant assumes all responsibility for the
protection of Tenant and Tenant's Agents from acts of third parties;
provided, however, that nothing contained herein shall prevent
Landlord, as its sole option, from providing security measures for the
Project.
7. Waste Disposal and Utilities
7.1 Waste Disposal. Tenant shall stores its waste either
inside the Premises or within outside trash enclosures that are fully
fenced and screened in compliance with all Private Restrictions, and
designed for such purpose. All entrance to such outside trash
enclosures shall be kept closed, and waste shall be stored in such
manner as not to be visible from the exterior of such outside
enclosures. Tenant shall cause all of its waste to be regularly
removed from the Premises at Tenant's sole cost. Tenant shall keep all
fire corridors and mechanical equipment rooms in the Premises free and
clear of all obstructions at all times.
7.2 Hazardous Materials. Landlord and Tenant agree as
follows with respect to the existence or use of Hazardous Materials on
the Project:
A. Any handling, transportation, storage, treatment,
disposal or use of Hazardous Materials by Tenant and Tenant's Agents
after the Effective Date in or about the Project shall strictly comply
with all applicable Hazardous Materials Laws Tenant shall indemnify,,
defend upon demand with counsel reasonably acceptable to Landlord, and
hold harmless Landlord from and against any liabilities, losses,
claims, damages, lost profits, consequential damages, interest,
penalties, fines, monetary sanctions, attorneys' fees, experts' fees,
court costs, remediation costs, investigation costs, and other expenses
which result from or arise in any manner whatsoever out of the use,
storage, treatment, transportation, release, or disposal of Hazardous
Materials on or about the Project by Tenant or Tenant's Agents after
the Effective Date.
B. If the presence of Hazardous Materials on the
Project caused or permitted by Tenant or Tenant's Agents after the
Effective Date results in contamination or deterioration of water or
soil resulting in a level of contamination greater than the levels
established as acceptable by any governmental agency having
jurisdiction over such contamination, then Tenant shall promptly take
any and all action necessary to investigate and remediate such
contamination if required by Law or as a condition to the issuance or
continuing effectiveness of any governmental approval which relates to
the use of the Project or any part thereof. Tenant shall further be
solely responsible for, and shall defend, indemnify and hold Landlord
and its Agents harmless from and against, all claims, costs, and
liabilities, including attorneys' fees and costs, arising out of or in
connection with any investigation and remediation required hereunder to
return the Project to its condition existing prior to the appearance of
such Hazardous Materials.
C. Landlord and Tenant shall each given written notice
to the other as soon as reasonably practicable of (i) any communication
received from any governmental authority concerning Hazardous Materials
which relates to the Project, and (ii) any contamination of the Project
by Hazardous Materials which constitutes a violation of any Hazardous
Materials Law. Tenant may use small quantities of household chemicals
such as adhesives, lubricants, and cleaning fluids in order to conduct
its business at the Premises and such other Hazardous Materials as are
necessary for the operation of Tenant's business of which Landlord
receives notice prior to such Hazardous Materials being brought onto
the Premises and which Landlord consents in writing may be brought onto
the Premises. At any time during the Lease Term, Tenant shall, within
five (5) days after written request therefor received from Landlord,
disclose in writing all Hazardous Materials that are being used by
Tenant on the Project, the nature of such use, and the manner of
storage and disposal.
D. Landlord may cause testing xxxxx to be installed
on the Project, and may cause the ground water to be tested to detect
the presence of Hazardous Material by the use of such tests as are then
customarily used for such purposes. If Tenant so requests, Landlord
shall supply Tenant with copies of such test results. The cost of such
tests and the installation, maintenance, repair and replacement of such
xxxxx shall be paid by Tenant if such tests disclose the existence of
facts which give rise to liability of Tenant pursuant to its indemnity
given in 7.2A and/or 7.2B.
E. As used herein, the term "Hazardous Material," means
any hazardous or toxic substance, material or waste which is or becomes
regulated by any local governmental authority, the State of California
or the United States Government. The term "Hazardous Material,'
includes, without limitation, petroleum products, asbestos, PCB's, and
any material or substance which is (i) listed under Article 9 or
defined as hazardous or extremely hazardous pursuant to Article 11 of
Title 22 of the California Administrative Code, Division 4, Chapter 20,
(ii) defined as a "hazardous waste" pursuant to Section 1004 of the
Federal Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.
(42 US.C. 6903), or (iii) defined as a "hazardous substance" pursuant
to Section 101 of the Comprehensive Environmental Response;
Compensation and Liability Act, 42 U.S.C. 9601 et seq. (42 U.S.C.
9601). As used herein, the term "Hazardous Material Law" shall mean
any statute, law, ordinance, or regulation of any
governmental body or agency (including the U.S. Environmental
Protection Agency, the California Regional Water Quality Control Board,
and the California Department of Health Services) which regulates the
use, storage, release or disposal of any Hazardous Material.
F. The obligation of Landlord and Tenant under this
7.2 shall survive the expiration of earlier termination of the Lease
Term. The rights and obligations of Landlord and Tenant with respect
to issues relating to Hazardous Materials are exclusively established
by this 7.2. In the event of any inconsistency between any other part
of this Lease and this 7.2, the terms of this 7.2 shall control.
7.3 Utilities. Tenant shall promptly pay, as the same
become due, all charges for water, gas, electricity, telephone, sewer
service, waste pickup and any other utilities, materials or services
furnished directly to or used by Tenant on or about the Premises during
the Lease Term, including, without limitation, (i) meter, use and/or
connection fees, hook-up fees or standby fee (excluding any connection
fees or hook-up fees which relate to making the existing electrical,
gas, and water service available to the Premises as of the Commencement
Date), and (ii) penalities for discontinued or interrupted service. If
any utility service is not separately metered to the Premises, then
Tenant shall pay its pro rata share of the cost of such utility service
with all others served by the service not separately metered. However,
if Landlord determines that Tenant is using a disproportionate amount
of any utility service not separately metered, then Landlord at its
election may (i) periodically charge Tenant, as Additional Rent, a sum
equal to Landlord's reasonable estimate of the cost of Tenant's excess
use of such utility service, or (ii) install a separate meter (at
Tenant's expense) to measure the utility service supplied to the
Premises.
7.4 Compliance with Governmental Regulations. Landlord
and Tenant shall comply with all rules, regulations and requirements
promulgated by national, state or local governmental agencies or
utility suppliers concerning the use of utility services, including any
rationing, limitation or other control. Tenant shall not be entitled
to terminate this Lease nor to any abatement in rent by reason of such
compliance.
8. Common Operating Expenses.
8.1 Tenant's Obligation to Reimburse. As Additional Rent,
Tenant shall pay Tenant's Share (specified in Section G of the Summary)
of all Common Operating Expenses; provided, however, if the Project
contains more than one building, then Tenant shall pay Tenant's Share
of all Common Operating Expenses fairly allocable to the Building,
including (i) all Common Operating Expenses paid with respect to the
maintenance, repair, replacement and use of the Building, and (ii) a
proportionate share (based on the Building Gross Leasable Area as a
percentage of the Project Gross Leasable Area) of all Common Operating
Expenses which relate to the Project in general and which are not
fairly allocable to any one building that is part of the Project.
Tenant shall pay such share of the actual Common Operating Expenses
incurred or paid by Landlord but not theretofore billed to Tenant
within ten (10) days after receipt of a written xxxx therefor from
Landlord, on such periodic basis as Landlord shall designate, but in no
event more frequently than once a month. Alternatively, Landlord may
from time to time require that Tenant pay Tenant's Share of Common
Operating Expenses in advance in estimated monthly installments, in
accordance with the following: (i) Landlord shall deliver to Tenant
Landlord's reasonable estimate of the Common Operating expenses it
anticipates will be paid or incurred for the Landlord's fiscal year in
question; (ii) during such Landlord's fiscal year Tenant shall pay such
share of the estimated Common Operating Expenses in advance in monthly
installments as required by Landlord due with the installments of Base
Monthly Rent; and (iii) within 90 days after the end of each Landlord's
fiscal year, or such later date selected by Landlord, Landlord shall
furnish to Tenant a statement in reasonable detail of the actual common
Operating Expenses paid or incurred by landlord during the just ended
Landlord's fiscal year and thereupon there shall be an adjustment
between Landlord and Tenant, with payment to Landlord or credit by
Landlord against the next installment of Base Monthly Rent, as the case
may require, within ten (10) days after delivery by Landlord tio Tenant
of said statement, so that Landlord shall receive the entire amount of
Tenant's Share of all Common Operating Expenses for such Landlord's
fiscal year and no more. Tenant shall have the right at its expense,
exercisable upon reasonable prior written notice to Landlord, to
inspect at Landlord's office during normal business hours Landlord's
books and records as they relate to common Operating Expenses. Such
inspection must be within sixty (60) days of Tenant's receipt of
Landlord's annual statement for the same, and shall be limited to
verification of the charges contained in such statement. Tenant may
not withhold payment of such xxxx pending completion of such
inspection.
8.2 Common Operating Expenses Defined. The term "Common
Operating Expenses' shall mean the following:
A. All costs and expenses paid or incurred by Landlord
in doing the following (including payments to independent contractors
providing services related to the performance of the following): (i)
maintaining, cleaning, repairing and resurfacing the roof (including
repair of leaks) and the exterior surfaces (including painting) of all
buildings located on the Project; (ii) maintenance of the liability,
fire and property damage insurance covering the Project carried by
Landlord pursuant to 9.2 (including the prepayment of premiums for
coverage of up to one year); (iii) maintaining, repairing, operating
and replacing when necessary HVAC equipment, utility facilities and
other building service equipment; (iv) providing utilities to the
Common Area (including lighting, trash removal and water for
landscaping irrigation); (v) complying with all applicable Laws and
Private Restrictions; (vi) operating, maintaining, repairing, cleaning,
painting, restriping and resurfacing the Common Area; (vii) replacement
or installation of lighting fixtures, directional or other signs and
signals, irrigation systems, trees, shrubs, ground cover and other
plant materials, and all landscaping in the Common Area; and (viii)
providing security;
B. The following costs: (i) Real Property Taxes as
defined in 8.3; (ii) the amount of any "deductible" paid by Landlord
with respect to damage caused by an Insured Peril, (iii) the cost to
repair damage caused by an Uninsured Peril up to maximum amount in any
12-month period equal to two percent (2%) of the replacement cost of
the buildings or other improvements damaged; (iv) legal, accounting and
other professional service for the Project, including costs, fees and
expenses of contesting the validity or applicability of any law;
ordinance, rule, regulation or order relating to the Project; and (v)
that portion of all compensation (including benefits and premiums for
workers' compensation and other insurance) paid to or on behalf of
employees of Landlord but only to the extent they are involved in the
performance of the work described by 8.2A that is fairly allocable to
the Project;
C. Fees for management services rendered by either
Landlord or a third party manager engaged by Landlord (which may be a
party affiliated with Landlord), except that the total amount charged
for management services and included in Tenant's Share of Common
Operating Expenses shall not exceed the monthly rate of five percent
(5%) of the Base Monthly Rent.;
D. All additional costs and expenses incurred by
landlord with respect to the operation, protection, maintenance, repair
and replacement of the Project which would be considered a current
expense (and not a capital expenditure) pursuant to generally accepted
accounting principles; provided, however, that Common Operating
Expenses shall not include any of the following: (i) payments on any
loans or ground leases affecting the Project; (ii) depreciation of any
buildings or any major systems of building service equipment within the
Project; (iii) leasing commissions; (iv) the cost of tenant
improvements installed for the exclusive use of other tenants of the
Project; and (v) any cost incurred in complying with Hazardous
Materials Laws, which subject is governed exclusively by 7.2.
8.3 Real Property Taxes Defined. The term "Real Property
Taxes" shall mean 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 existing or future general or special assessments
for public improvements, services or benefits, and any increases
resulting from reassessments resulting from a change in ownership, new
construction, or any other cause), 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 Project (as now constructed or as may
at any time hereafter be constructed, altered, or otherwise changed) or
Landlord's interest therein, the fixtures, equipment and other property
of Landlord, real or personal, that are an integral xxx of and located
on the Project, the gross receipts, income, or rentals from the
Project, or the use of parking areas, public utilities, or energy
within the Project, or Landlord's business of leasing the Project. If
at any time during the Lease Term the method of taxation or assessment
of the Project prevailing as of the Effective Date 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 Project or Landlord's
interest therein, or (ii) on or measured by the gross receipts, income
or rentals from the Project, on Landlord's business of leasing the
Project, or computed in any manner with respect to the operation of the
Project, 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 Project, then only that part of such
Real Property Tax that is fairly allocable to the Project 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,
transfer, gift or franchise taxes of Landlord or the federal or state
net income tax imposed on Landlord's income from all sources:
9. Insurance.
9.1 Tenant's Insurance. Tenant shall maintain insurance
complying with all of the following:
A. Tenant shall procure, pay for and keep in full force
and effect the following:
(1) Commercial general liability insurance,
including property damage, against liability for personal injury,
bodily injury, death and damage to property occurring in or about, or
resulting from an occurrence in or about, the Premises with combined
single limit coverage of not less than the amount of Tenant's Liability
Insurance Minimum specified in Section O of the Summary, which
insurance shall contain a "contractual liability" endorsement insuring
Tenant's performance of Tenant's obligation to indemnify Landlord
contained in 10.3;
(2) Fire and property damage insurance in so-called
"all risk" form insuring Tenant's Trade Fixtures and Tenant's
Alterations for the full actual replacement cost thereof;
(3) Such other insurance that is either (i)
required by any Lender, or (ii) reasonably required by Landlord and
customarily carried by tenants of similar property in similar
businesses..
B. Where applicable and required by Landlord, each
policy of insurance required to be carried by Tenant pursuant to this
9.1: (i) shall name Landlord and such other parties in interest as
Landlord reasonably designates as additional insured; (ii) shall be
primary insurance which provides that the insurer shall be liable for
the full amount of the loss up to and including the total amount of
liability set forth in the declarations without the right of
contribution from any other insurance coverage of Landlord; (iii) shall
be in a form satisfactory to Landlord; (iv) shall be carried with
companies reasonably acceptable to Landlord; (v) shall provide that
such policy shall not be subject to cancellation, lapse or change
except after at least thirty (30) days prior written notice to Landlord
so long as such provision of thirty (30) days notice is reasonably
obtainable, but in any event not less than ten (10) days prior written
notice; (vi) shall not have a "deductible" in excess of such amount as
is approved by Landlord; (vii) shall contain a cross liability
endorsement; and (viii) shall contain a "severability" clause. If
Tenant has in full force and effect a blanket policy of liability
insurance with the same coverage for the Premises as described above,
as well as other coverage premises and properties of Tenant, or in
which Tenant has some interest, such blanket insurance shall satisfy
the requirements of this 9.1.
C. A copy of each paid-up policy evidencing the
insurance required to be carried by Tenant pursuant to this 9.1
(appropriately authenticated by the insurer) or a certificate of the
insurer, certifying that such policy has been issued, providing the
coverage required by this 9.1, and containing the provisions specified
herein, shall be delivered to Landlord prior to the time Tenant or any
of its Agents enters the Premises and upon renewal of such policies,
but not less than five (5) days prior to the expiration of the term of
such coverage. Landlord may, at any time, and from time to time,
inspect and/or copy any and all insurance policies required to be
procured by Tenant pursuant to this 9.1. If Landlord or any Lender
reasonably determines at any time that the amount of coverage required
for any policy of insurance Tenant is to obtain pursuant to this 9.1
is not adequate, then Tenant shall increase such coverage for such
insurance to such amount as such Lender or insurance advisor reasonably
deems adequate, not to exceed the level of coverage for such insurance
commonly carried by comparable businesses similarly situated.
9.2 Landlord's Insurance. Landlord shall have the
following obligations and options regarding insurance:
A. Landlord shall maintain a policy or policies of fire
and property damage insurance in so-called "at-risk" form insuring
Landlord (and such others as Landlord may designate) against loss of
rents for a period of not less than twelve (12) months and from
physical damage to the Project with coverage of not less than the full
replacement cost thereof. Landlord may so insure the Project
separately, or may insure the Project with other property owned by
Landlord which Landlord elects to insure together under the same policy
or policies. Such fire and property damage insurance (i) may be
endorsed to cover loss caused by such additional perils against which
Landlord may elect to insure, including earthquake and/or flood, and to
provide such additional coverage as Landlord reasonably requires, and
(ii) shall contain reasonable "deductibles" which, in the case of
earthquake and flood insurance, may be up to ten percent (10%) of the
replacement value of the property insured or such higher amount as is
then commercially reasonable. Landlord shall not be required to cause
such insurance to cover any Trade Fixtures or Tenant's Alterations of
Tenant.
B. Landlord may maintain a policy or policies of
commercial general liability insurance insuring Landlord (or such
others as are designated by Landlord) against liability for personal
injury, bodily injury, death and damage to property occurring or
resulting from an occurrence in, on or about the Project, with combined
single limit coverage in such amount as Landlord from time to time
determines is reasonably necessary for its protection.
9.3 Tenant's Obligation to Reimburse. If Landlord's
insurance rates for the Building are increased at any time during the
Lease Term as a result of the nature of Tenant's use of the Premises,
Tenant shall reimburse Landlord for the full amount of such increase
immediately upon receipt of a xxxx from Landlord therefor.
9.4 Release and Waiver of Subrogation. The parties hereto
release each other, and their respective Agents, from any liability for
injury to any person or damage to property that is caused by or results
from any risk insured against under any valid and collectible insurance
policy carried by either of the parties which contains a waiver of
subrogation by the insurer and is in force at the time of such injury
or damage; subject to the following limitations: (i) the foregoing
provision shall not apply to the commercial general liability insurance
described by subparagraphs 9.1A and 9.2B; (ii) such release shall
apply to liability resulting from any risk insured against or covered
by self-insurance maintained or provided by Tenant to satisfy the
requirements of 9.1 to the extent permitted by this Lease; and (iii)
Tenant shall not be released from any such liability to the extent any
damages resulting from such injury or damage are not covered by the
recovery obtained by Landlord from such insurance, but only if the
insurance in question permits such partial release in connection with
obtaining a waiver of subrogation from the insurer. This release shall
be in effect only so long as the applicable insurance policy contains a
clause to the effect that this release shall not affect the right of
the insured to recover under such policy. Each party shall use
reasonable efforts to cause each insurance policy obtained by it to
provide that the insurer waives al right of recovery by way of
subrogation against the other party and its agents and employees in
connection with any injury or damage covered by such policy. Howeer,
if any insurance policy cannot be obtained with such a waiver of
subrogation, or if such waiver of subrogation is only available at
additional cost and the party for whose benefit the waiver is to be
obtained does not pay such addition cost, then the party obtaining such
insurance shall notify the other party of that fact and thereupon shall
be relieved of the obligation to obtain such waiver of subrogation
rights from the insurer with respect to the particular insurance
involved.
10. Limitation on Landlord's Liability and Indemnity
10.1 Limitation on Landlord's Liability. Landlord shall
not be liable to Tenant, nor shall Tenant be entitled to terminate this
Lease or to any abatement of rent (except as expressly provided
otherwise herein), for any injury to Tenant or Tenant's Agents, damage
to the property of Tenant or Tenant's Agents, or loss to Tenant's
business resulting from any cause, including without limitation any:
(i) failure, interruption or installation of any HVAC or other utility
system or service, (ii) failure to furnish or delay in furnishing any
utilities or services when such failure or delay is caused by fire or
other peril, the elements, labor disturbances of any character, or any
other accidents or other conditions beyond the reasonable control of
Landlord, (iii) limitation, curtailment, rationing or restriction on
the use of water or electricity, gas or any other form of energy or any
services or utility serving the Project; (iv) vandalism or forcible
entry by unauthorized persons or the criminal act of any person; or (v)
penetration of water into or onto any portion of the Premises or the
Building through roof leaks or otherwise. Notwithstanding the foregoing
but subject to 9.4, (a) Landlord shall be liable for any such injury,
damage or loss which is proximately caused by Landlord's willful
misconduct or gross negligence, and (b) if the failure or interruption
of any HVAC or other utility services continues for more than thirty
(30) consecutive days and such failure or interruption Tenant from
using the Premises, then commencing upon the expiration of such thirty
(30) day period, Base Monthly Rate shall xxxxx until beneficial use of
the Premises is restored.
10.2 Limitation on Tenant's Recourse: If Landlord is a
corporation, trust, partnership, joint venture, unincorporated
association or other form of business entity: (i) the obligations of
Landlord shall not constitute personal obligations of the officers,
directors, trustees, partners, joint venturers, members, owners,
stockholders, or other principals or representatives of such business
entity; and (ii) Tenant shall not have recourse to the assets of such
officers, directors, trustees, partners, joint venturers, members,
owners, stockholders, principals or representatives except to the
extent of their interest in the Project. Teantn shall have recourse
only to the interest of Landlord in the Project for the satisfaction of
the obligations of Landlord and shall not have recourse to any other
assets of Landlord for the satisfaction of such obligations.
10.3 Indemnification of Landlord. Tenant shall hold
harmless, indemnify and defend Landlord, and its employees, agents and
contractors, with competent counsel reasonably satisfactory to Landlord
(and Landlord agrees to accept counsel that any insurer requires be
used), from all liability, penalties, losses, damages, costs, expenses,
causes of action, claims and/or judgements arising by reason fo any
death, bodily injury, personal injury or property damage resulting from
(i) any cause or causes whatsoever (other than the willful misconduct
or gross negligence of Landlord) occurring in or about the Premises
during the Lease Term, (ii) the negligence or willful misconduct of
Tenant or its Agents, wherever the same may occur, or (iii) an Event of
Tenant's Default. The provisions of this 10.3 shall survive the
expiration or sooner termination of this Lease.
11. Damage to Premises
11.1 Landlord's Duty to Restore. If the Premises are
damaged by any peril after the Effective Date, Landlord shall restore
the Premises (including the improvements to be constructed by Landlord
pursuant to 2.3) unless the Lease is terminated by Landlord pursuant
to 11.2 or by Tenant pursuant to 11.3. All insurance proceeds
available from the fire and property damage insurance carried by
Landlord pursuant to 9.2 shall be paid to and become the property of
Landlord. If this Lease is terminated pursuant to either 11.2 or
11.3, then all insurance proceeds available from insurance carried by
Tenant which covers loss to property that is Landlord's property or
would become Landlord's property on termination of this Lease shall be
paid to and become the property of Landlord. If this Lease is not so
terminated, then upon receipt of the insurance proceeds (if the loss is
covered by insurance) and the issuance of all necessary governmental
permits, Landlord shall commence restoration of the Premises, to the
extent then allowed by Law, to substantially the same condition in
which the Premises were immediately prior to such damage. Landlord's
obligation to restore shall be limited to the Premises and interior
improvements constructed by Landlord as they existed as of the
Commencement Date, excluding any Tenant's Alterations, Trade Fixtures
and/or personal property constructed or installed by Tenant in the
Premises. Tenant shall forthwith replace or fully repair all Tenant's
Alterations installed by Tenant and existing at the time of such damage
or destruction, and all insurance proceeds received by Tenant from the
insurance carried by it pursuant to 9.1A(2) shall be used for such
purpose.
11.2 Landlord's Right to Terminate. Landlord shall have
the right to terminate this Lease in the event any of the following
occurs, which right may be exercised only by delivery to Tenant of a
written notice of election to terminate within thirty (30) days after
the date of such damage:
A. Either the Project or the Building is damaged by an
Insured Peril to such an extent that the estimated cost to restore
exceeds thirty-three percent (33%) of the then actual replacement cost
thereof;
B. Either the Project or the Building is damaged by
an Uninsured Peril to such an extent that the estimated cost to restore
exceeds two percent (2%) of the then actual replacement cost thereof;
provided, however, that Landlord may not terminate this Lease pursuant
to this 11.2B if one or more tenants of the Project agree in writing
to pay the amount by which the cost to restore the damage exceeds such
amount and subsequently deposit such amount with Landlord within thirty
(30) days after Landlord has notified Tenant of its election to
terminate this Lease;
C. The Premises are damaged by any peril within twelve
(12) months of the last day of the Lease Term to such an extent that
the estimated cost to restore equals or exceeds an amount equal to six
(6) times the Base Monthly Rent then due; or
D. Either the Project or the Building is damaged by any
peril and, because of the Laws then in force, (i) cannot be restored at
reasonable cost to substantially the same condition in which it was
prior to such damage, or (ii) cannot be used for the same use being
made thereof before such damage if restored as required by this
Article.
As used herein, the following terms shall have the following meanings:
(i) the term "Insured Peril" shall mean a peril actually insured
against for which the insurance proceeds actually received by Landlord
are sufficient (except for any "deductible" amount specified by such
insurance) to restore the Project under then existing building codes to
the condition existing immediately prior to the damage, and (ii) the
term "Uninsured Peril" shall mean any peril which is not an Insured
Peril. Notwithstanding the foregoing, if the "deductible" for
earthquake or flood insurance exceeds two percent (2%) of the
replacement cost of the improvements insured, such peril shall be
deemed an "Uninsured Peril."
11.3 Tenant's Right to Terminate. If the Premises are
damaged by any peril and Landlord does not elect to terminate this
Lease or is not entitled to terminate this Lease pursuant to 11.2,
then as soon as reasonably practicable, Landlord shall furnish Tenant
with the written opinion of Landlord's architect or construction
consultant as to when the restoration work required of Landlord may be
completed. Tenant shall have the right to terminate this Lease in the
event any of the following occurs, which right may be exercised only by
delivery to Landlord of a written notice of election to terminate
within fifteen (15) days after Tenant receives from Landlord the
estimate of the time needed to complete such restoration.
A. The Premises are damaged by any peril and, in the
reasonable opinion of Landlord's architect or construction consultant,
the restoration of the Premises cannot be substantially completed
within two hundred seventy (270) days after the date of such damage.
B. The Premises are damaged by any peril within twelve
(12) months of the last day of the Lease Term and, in the reasonable
opinion of Landlord's architect or construction consultant, the
restoration of the Premises cannot be substantially completed within
ninety (90) days after the date of such damage and such damage renders
unusable more than 30% of the Premises.
11.4 Abatement of Rent. In the event of damage to the
Premises which does not result in the termination of this Lease, the
Base Monthly Rent and the Additional Rent shall be temporarily abated
during the period of restoration in proportion to the degree to which
Tenant's use of the Premises is impaired by such damage. Tenant shall
not be entitled to any compensation or damaged from Landlord for loss
of Tenant's business or property or for any inconvenience or annoyance
caused by such damage or restoration. Tenant hereby waives the
provisions of California Civil Code Sections 1932(2) and 1933(4) and
the provisions of any similar law hereinafter enacted.
12. Condemnation.
12.1 Landlord's Termination Right. Landlord shall have
the right to terminate this Lease if, as a result of a taking by means
of the exercise of the power of eminent domain (including a voluntary
sale or transfer by Landlord to a condemnor under threat of
condemnation), (i) all or any part of the Premises is so taken, (ii)
more than 10% of the Building Leasable Area is so taken, or (iii) more
than 50% of the Common Area is so taken. Any such right to terminate
by Landlord must be exercised within a reasonable period of time, to be
effective as of the date possession is taken by the condemnor.
12.2 Tenant's Termination Right. Tenant shall have the
right to terminate this Lease if, as a result of any taking by means of
the exercise of the power of eminent domain (including any voluntary
sale or transfer by Landlord to any condemnor under threat of
condemnation), (i) ten percent (10%) or more of the Premises is so
taken and that part of the Premises that remains cannot be restored
within a reasonable period of time and thereby made reasonably suitable
for the continued operation of the Tenant's business, or (ii) there is
a taking affecting the Common Area and, as a result of such taking,
Landlord cannot provide parking spaces within reasonable walking
distance of the Premises equal in number to at least eighty percent
(80%) of the number of spaces allocated to Tenant by 2.1, whether by
rearrangement of the remaining parking areas in the Common Area
(including construction of multi-deck parking structures or restriping
for compact cars where permitted by Law) or by alternative parking
facilities on other land. Tenant must exercise such right within a
reasonable period of time, to be effective on the date that possession
of that portion of the Premises of Common Area that is condemned is
taken by the condemnor.
12.3 Restoration and Abatement of Rent. If any part of
the Premises or the Common Area is taken by condemnation and this Lease
is not terminated, then Landlord shall restore the remaining portion of
the Premises and Common Area and interior improvements constructed by
Landlord as they existed as of the Commencement Date, excluding any
Tenant's Alterations, Trade Fixtures and/or personal property
constructed or installed by Tenant. Thereafter, except in the case of
a temporary taking, as of the date possession is taken the Base Monthly
Rent shall be reduced in the same proportion that the floor area of
that part of the Premises so taken (less any addition thereto by reason
of any reconstruction) bears to the original floor area of the
Premises.
12.4 Temporary Taking. If any portion of the Premises is
temporarily taken for one year or less, this Lease shall remain in
effect. If any portion of the premises is temporarily taken by
condemnation for a period which exceeds one (1) year or which extends
beyond the natural aspiration of the Lease Term, and such taking
materially and adversely affects Tenant's ability to use the Premises
for the Permitted Use, then Tenant shall have the right to terminate
this Lease, effective on the date possession is taken by the condemnor.
12.5 Division of Condemnation Award. Any award made as a
result of any condemnation of the Premises or the Common Area shall
belong to and be paid to Landlord, and Tenant hereby assigns to
Landlord all of its right, title and interest in any such award;
provided, however, that Tenant shall be entitled to receive any
condemnation award that is made directly to Tenant for the following so
long as the aware made to Landlord is not thereby reduced; (i) for the
taking of personal property or Trade Fixtures belonging to Tenant, (ii)
for the interruption of Tenant's business or its moving costs, (iii)
for loss of Tenant's goodwill; or (iv) for any temporary taking where
this Lease is not terminated as a result of such taking. The rights of
Landlord and Tenant regarding any condemnation shall be determined as
provided in this Article, and each party hereby waives the provisions
of California Code of Civil Procedure Section 1265.130 enacted allowing
either party to petition the Superior Court to terminate this Lease in
the event of a partial taking of the Premises.
13. Default and Remedies.
13.1 Events of Tenant's Default. Tenant shall be in
default of its obligations under this Lease if any of the following
events occurs (an "Event of Tenant's Default"):
A. Tenant shall have failed to pay Base Monthly Rent or
Additional Rent when due, and such failure is not cured within five (5)
days after delivery of written notice from Landlord specifying such
failure to pay; or
B. Tenant shall have failed to perform any term,
covenant, or condition of this Lease except those requiring the payment
of Base Monthly Rent or Additional Rent, and Tenant shall have failed
to cure such breach within thirty (30) days after written notice from
Landlord specifying the nature of such breach where such breach could
reasonable be cured within said thirty-day period, or if such breach
could not be reasonably cured within said 30-day period, Tenant shall
have failed to commence such cure within said thirty-day period and
thereafter continue with due diligence to prosecute such cure to
completion within such time period as is reasonable needed but not to
exceed ninety (90) days from the date of Landlord's notice; or
C. Tenant shall have sublet the Premises or assigned
its interest in the Lease in violation of the provisions in Article 14;
or
D. Tenant shall have abandoned the Premises or left the
Premises substantially vacant; or
E. The occurrence of the following: (i) the making
by Tenant of any general arrangements or assignments for the benefit of
creditors; (ii) Tenant becomes a "debtor" as defined in 11 U.S.C. 101
or any successor statute thereto (unless, in the case of a petition
filed against Tenant, the same is dismissed within sixty (60) days);
(iii) 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 thirty (30 ) days; or (iv) 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 thirty (30) days; provided, however,
in the event that any provision of this Section 13.E is contrary to any
applicable Law, such provision shall be of no force or effect; or
F. Tenant shall have failed to deliver documents
required of it pursuant to 15.4 or 15.6 within the time periods
specified therein.
13.2 Landlord's Remedies. If an Event of Tenant's Default
occurs, Landlord shall have the following remedies, in addition to all
other rights and remedies provided by any Law or otherwise provided in
this Lease, to which Landlord may resort cumulatively or in the
alternative:
A. Landlord may keep this Lease in effect and enforce
by an action at law or in equity all of its right and remedies under
this Lease, including (i) the right to recover the rent and other sums
as they become due by appropriate legal action, (ii) the right to make
payments required of Tenant or perform Tenant's obligations and be
reimbursed by Tenant for the cost thereof with interest at the Agreed
Interest Rate from the date the sum is paid by Landlord until Landlord
is reimbursed by Tenant, and (iii) the remedies of injunctive relief
and specific performance to compel Tenant to Perform its obligations
under this Lease. Notwithstanding anything contained in this Lease, in
the event of a breach of an obligation by Tenant which results in a
condition which poses an imminent danger to safety of persons or damage
to property, an unsightly condition visible from the exterior of the
Building, or a threat to insurance coverage, then if Tenant does not
cure such breach within three (3) days after delivery to it of written
notice from Landlord identifying the breach, Landlord may cure the
breach of Tenant and be reimbursed by Tenant for the cost thereof with
interest at the Agreed Interest Rate from the date the sum is paid by
Landlord until Landlord is reimbursed by Tenant.
B. Landlord may enter the Premises and release them to
third parties for Tenant's account for any period, whether shorter or
loner than the remaining Lease Term. Tenant shall be liable
immediately to Landlord for all costs Landlord incurs in releasing the
Premises, including brokers' commissions, expenses of altering and
preparing the Premises required by the releasing. Tenant shall pay to
Landlord the rent and other sums due under this Lease on the Date the
rent is due, less the rent and other sums Landlord received from any
releasing. No act by Landlord allowed by this subparagraph shall
terminate this Lease unless Landlord notifies Tenant in writing that
Landlord elects to terminate this Lease. Notwithstanding any releasing
without termination, Landlord may later elect to terminate this Lease
because of the default by Tenant.
C. Landlord may terminate this Lease by giving
Tenant written notice of termination, in which event this Lease shall
terminate on the date set forth for termination in such notice. Any
termination under this 13.2C shall not relieve Tenant from its
obligation to pay sums then due Landlord or from any claim against
Tenant for damages or rent previously accrued or then accruing. In no
event shall any one or more of the following actions by Landlord, in
the absence of a written election by Landlord to terminate this Lease,
constitute a termination of this Lease: (i) appointment of a receiver
or keeper in order to protect Landlord's interest hereunder; (ii)
consent to any subletting of the Premises or assignment of this Lease
by Tenant, whether pursuant to the provisions hereof or otherwise; or
(iii) any other action by Landlord or Landlord's Agents intended to
mitigate the adverse effects of any breach of this Lease by Tenant,
including without limitation any action taken to maintain and preserve
the Premises or any action taken to relet the Premises or any portions
thereof to the extent such actions to not affect a termination of
Tenant's right to possession of the Premises.
D. In the event Tenant breaches this Lease and
abandons the Premises, this Lease shall not terminate unless Landlord
gives Tenant written notice of its election to so terminate this Lease.
No act by or on behalf of Landlord intended to mitigate the adverse
effect of such breach, including those described by 13.C, shall
constitute a termination of Tenant's right to possession unless
Landlord gives Tenant written notice of termination. Should Landlord
not terminate this Lease by giving Tenant written notice, Landlord may
enforce all its rights and remedies under this Lease, including the
right to recover the rent as it becomes due under the Lease as provided
in California Civil Code Section 1951.4.
E. In the event Landlord terminates this Lease,
Landlord shall be entitled, at Landlord's election, to damages in an
amount as set forth in California Civil Code Section 1951.2 as in
effect on the effective date. For purposes of computing damages
pursuant to California Civil Code Section 1951.2, (i) an interest rate
equal to the Agreed Interest Rate shall be used where permitted, and
(ii) the term "rent" includes Base Monthly Rent and Additional Rent.
Such damages shall include:
(1) The worth at the time of award of the amount by
which the unpaid rent for the balance of the term after the time of
award exceeds the amount of such rental loss that Tenant proves could
be reasonable avoided, computed by discontinuing such amount at
the discount rate of the Federal Reserve Bank of San Francisco at the
time of award plus one percent (1%); and
(2) Any other amount necessary to compensate
Landlord for all detriment proximately caused by Tenant's failure to
perform Tenant's obligations under this Lease, or which in the ordinary
course of things would be likely to result therefrom, including the
following: (i) expenses for cleaning, repairing or restoring the
Premises; (ii) expenses for altering, remodeling or otherwise improving
the Premises for the purpose of reletting, including installation of
leasehold improvements (whether such installation be funded by a
reduction of rent, direct payment or allowance to a new tenant, or
otherwise); (iii) broker's fees, advertising costs and other expenses
of reletting the Premises; (iv) costs of carrying the Premises, such as
taxes, insurance premiums, utilities and security precuations; (v)
expenses in retaking possession of the Premises; and (vi) attorneys'
fees and court costs incurred by Landlord in retaking possession of the
Premises and in releasing the Premises or otherwise incurred as a
result of Tenant's default.
F. Nothing in this 13.2 shall limit Landlord's right
to indemnification from Tenant as provided in 7.2 and 10.3. Any
notice given by Landlord in order to satisfy the requirements of
13.1A or 13.1B above shall also satisfy the notice requirements of
California Code of Civil Procedure Section 1161 regarding unlawful
detainer proceedings.
13.3 Waiver. One party's consent to or approval of any
act by the other party requiring the first party's consent or approval
shall not be deemed to waive or render unnecessary the first party's
consent to or approval of any subsequent similar act by the other
party. The receipt by Landlord of any rent or payment with or without
knowledge of the breach of any other provision hereof shall not be
deemed a waiver of any such breach unless such waiver is in writing and
signed by Landlord. No delay or omission in the exercise of any right
or remedy accruing to either party upon any breach by the other party
under this Lease shall impair such right or remedy or be construed as a
waiver of any such breach theretofore or thereafter occurring. The
waiver by either party of any breach of any provision of this Lease
shall not be deemed to be a waiver of any subsequent breach of the same
or of any other provisions herein contained.
13.4 Limitation on Exercise of Rights. At any time that
an Event of Tenant's Default has occurred and remains uncured, (i) it
shall not be unreasonable for Landlord to deny or withhold any consent
or approval requested of it by Tenant which Landlord would otherwise be
obligated to give, and (ii) Tenant may not exercise any right to
terminate this Lease or other right granted to it by this Lease which
would otherwise be available to it.
13.5 Waiver by Tenant of Certain Remedies. Tenant waives
the provisions of Sections 1932(1), 1941 and 1942 of the California
Civil Code and any similar or successor law regarding Tenant's right to
terminate this Lease or to make repairs and deduct the expenses of such
repairs from the rent due under this Lease. Tenant hereby waives any
right of redemption or relief from forfeiture under the laws of the
State of California, or under any other present or future law,
including the provisions of Sections 1174 and 1179 of the California
Code of Civil Procedures.
14. Assignment and Subletting.
14.1 Transfer by Tenant. The following provisions shall
apply to any assignment, subletting or other transfer by Tenant or any
subtenant or assignee or other successor in interest of the original
Tenant (collectively referred to in this 14.1 as "Tenant"):
A. Tenant shall not do any of the following
(collectively referred to herein as a "Transfer"), whether voluntarily,
involuntarily or by operation of law, without the prior written consent
of Landlord, which consent shall not be unreasonably withheld or
delayed: (i) sublet all or any part of the Premises or allow it to be
sublet, occupied or used by any person or entity other than Tenant;
(ii) assign its interest in this Lease; (iii) mortgage or encumber the
Lease (or otherwise use the Lease as a security device) in any manner,
or (iv) materially amend or modify an assignment, sublease or other
transfer that has been previously approved by Landlord. Tenant shall
reimburse Landlord for all reasonable costs and attorneys' fees
incurred by Landlord in connection with the evaluation, processing,
and/or documentation of any requested Transfer, whether or not
Landlord's consent is granted. Landlord's reasonable costs shall
include the cost of any review or investigation performed by Landlord
or consultant acting on Landlord's behalf of (i) Hazardous Materials
(as defined in Section 7.2E of this Lease) used, stored, released, or
disposed of by the potential subtenant or assignee, and/or (ii)
violations of Hazardous Materials law (as defined in Section 7.2E of
this Lease) by the tenant or the proposed Subtenant or Assignee. Any
Transfer so approved by Landlord shall not be effective until Tenant
has delivered to Landlord an executed counterpart of the document
evidencing the Transfer which (i) is in a form reasonably approved by
Landlord, (ii) contains the same terms and conditions as stated in
Tenant's notice given to Landlord pursuant to 14.1B, and (iii) in the
case of an assignment of the Lease, contains the agreement of the
proposed transferee to assume all obligations of Tenant under this
Lease arising after the effective date of such Transfer and to remain
jointly and severally liable therefor with Tenant. any attempted
Transfer without Landlord's consent shall constitute an Event of
Tenant's Default and shall be voidable at Landlord's option.
Landlord's consent to any one Transfer shall not constitute a waiver of
the provisions of this 14.1 as to any subsequent Transfer or a
consent to any subsequent Transfer. No Transfer even with the consent
of Landlord, shall relieve Tenant of its personal and primary
obligation to pay the rent and to perform all of the other obligations
to be performed by Tenant hereunder. The acceptance of rent by
Landlord from any person shall not be deemed to be a waiver by Landlord
of any provision of this Lease nor to be a consent to any Transfer.
B. At least thirty (30) days before a proposed Transfer
is to become effective, Tenant shall give Landlord written notice of
the proposed terms of such Transfer and request Landlord's approval,
which notice shall include the following: (i) the name and legal
composition of the proposed transferee; (ii) a current financial
statement of the transferee, financial statements of the transferee
covering the preceding three years if the same exist, and (if
available) an audited financial statement of the transferee for a
period ending not more than one (1) year prior to the proposed
effective date of the Transfer, all of which statements are prepared in
accordance with generally accepted accounting principles: (iii) the
nature of the proposed transferee's business to be carried on in the
Premises; (iv) all consideration to be given on account of the
Transfer, (v) a current financial statement of Tenant; and (vi) an
accurately filled out response to Landlord's standard Hazardous
Materials Questionnaire. Tenant shall provide to Landlord such other
information as may be reasonably requested by Landlord within seven (7)
days after Landlord's receipt of such notice from Tenant. Landlord
shall respond in writing to Tenants request for Landlord's consent to a
Transfer within the later of (i) fifteen (15) days of receipt of such
request together with the required accompanying documentation, or (ii)
seven (7) days after landlord's receipt of all information which
Landlord reasonably requests within seven (7) days after it receives
Tenant's first notice regarding the Transfer in question. If Landlord
fails to respond in writing within said period, Landlord will be deemed
to have withheld consent to such Transfer. Tenant shall immediately
notify Landlord of any material modification to the proposed terms of
such Transfer.
C. In the event that Tenant seeks to make any Transfer,
Landlord shall have the right to terminate this Lease or, in the case
of a sublease of less than all of the Premises, terminate this Lease as
to that part of the Premises proposed to be so sublet, either (i) on
the condition that the proposed transferee immediately enter into a
direct lease of the Premises with Landlord (or, in the case of a
partial sublease, a lease for the portion proposed to be so sublet) on
the same terms and conditions contained in Tenant's notice, or (ii) so
that Landlord is thereafter free to lease the Premises (or, in the case
of a partial sublease, the portion proposed to be so sublet) to
whomever it pleases on whatever terms are acceptable to Landlord. In
the event Landlord elects to so terminate this Lease, then (i) if such
termination is conditioned upon the execution of a lease between
Landlord and the proposed transferee, Tenant's obligations under this
Lease shall not be terminated until such transferee executes a new
lease with Landlord, enters into possession and commences the payment
of rent, and (ii) if Landlord elects simply to terminate this Lease
(or, in the case of a partial sublease, terminate this Lease as to the
portion to be so sublet), the Lease shall so terminate in its entirety
(or as to the space to be so sublet) fifteen (15) days after Landlord
has notified Tenant in writing of such election. Upon such
termination, Tenant shall be released from any further obligation under
this Lease if it is terminated in its entirely, or shall be released
from any further obligation under the Lease with respect to the space
proposed to be sublet in the case of a proposed partial sublease. In
the case of a partial termination of the lease, the Base Monthly Rent
and Tenant's Share shall be reduced to an amount which bears the same
relationship to the original amount thereof as the area of that part of
the premises which remains subject to the Lease bears to the original
area of the premises. Landlord and Tenant shall execute a cancellation
and release with respect to the Lease to effect such termination.
D. If Landlord consents to a Transfer proposed by
Tenant, Tenant may enter into such Transfer, and if Tenant does so, the
following shall apply:
(1) Tenant shall not be released of its liability
for the performance of all of its obligations under the Lease.
(2) If Tenant assigns its interest in this
Lease, then Tenant shall pay to Landlord eighty percent (80%) of all
Subrent (as defined in 14.1D(5)) received by Tenant over the above
(i) the assignee's agreement to assume the obligations of Tenant under
this Lease, and (ii) all Permitted Transfer Costs related to such
assignment. In the Case of Assignment, the amount of Subrent owed to
Landlord shall be paid to Landlord on the same basis, either periodic
or in lump sum, that such Subrent is paid to Tenant by the assignee.
(3) IfTenant sublets any part of the Premises, then
with respect to the space so subleased, Tenant shall pay to Landlord
eighty percent (80%) of the positive difference, if any, between (i)
all Subrent paid by the subtenant to Tenant, less (ii) the sum of all
Base Monthly Rent and Additional Rent allocable to the space sublet and
all Permitted Transfer Costs related to such sublease. Such amount
shall be paid to Landlord on the same basis, whether periodic or in
lump sum, that such Subrent is paid to Tenant by its subtenant. In
calculating Landlord's share of any periodic payments, all Permitted
Transfer Costs shall be first recovered by Tenant.
(4) Tenant's obligations under this 14.1D
shall survive Transfer, and Tenant's lure to perform its obligations
hereunder shall be an Event of Tenant's Default. At the time Tenant
makes any payment to Landlord required by this 14.1D, Tenant shall
deliver an itemized statement of the method by which the amount of
which Landlord is entitled was calculated, certified by Tenant as true
and correct. Landlord shall have the right at reasonable intervals to
inspect Tenant's books and records relating to the payments due
hereunder. Upon request therefor, Tenant shall deliver to Landlord
copies of all bills, invoices or other documents upon which its
calculations are based. Landlord may condition its approval of any
Transfer upon obtaining a certification from both Tenant and the
proposed transferee of all Subrent and other amounts that are to be
paid to Tenant in connection with such Transfer.
(5) As used in this 14.1D, the term "Subrent"
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, including payments
from or on behalf of the transferee (in excess of the book value
thereof) for Tenant's assets, fixtures, leasehold improvements,
inventory, accounts, goodwill, equipment, furniture, and general
intangibles. As used in this 14.1D, the term "Permitted Transfer
Costs" shall mean (i) all reasonable leasing commissions paid to third
parties not affiliated with Tenant in order to obtain the Transfer in
question, (ii) all reasonable attorneys' fees incurred by Tenant with
respect to the Transfer in question and (iii) all reasonable costs
incurred in cleaning and/or painting the Premises as required by the
assignee or subtenant in connection with the Transfer.
E. If Tenant is a corporation, the following shall be
deemed a voluntary assignment of Tenant's interest in this Lease: (i)
any dissolution, merger, consolidation, or other reorganization of or
affecting Tenant, whether or not Tenant is the surviving corporation;
and (ii) if the capital stock of Tenant is not publicly traded, the
sale or transfer to one person or entity (or to any group of related
persons or entities) stock possessing more than fifty percent (50%) of
the total combined voting power of all classes of Tenant's capital
stock issued, outstanding and entitled to vote for the election of
directors. If Tenant is a partnership, any withdrawal or substitution
(whether voluntary, involuntary or by operation of law, and whether
occurring at one time or over a period of time) of any partner owning
twenty-five percent (25%) or more (cumulatively) of any interest in the
capital or profits of the partnership, or the dissolution of the
partnership, shall be deemed a voluntary assignment of Tenant's
interest in this Lease.
F. Notwithstanding anything contained in14.1, so
long as Tenant otherwise complies with the provisions of 14.1 Tenant
may enter into any of the following Transfers without first obtaining
Landlord's prior written consent, and Landlord shall not be entitled to
terminate the Lease to 14.1C or to receive any part of any Subrent
resulting therefrom that would otherwise be due it pursuant to
14.1D:
(1) Tenant may sublease all or part of the Premises
or assign its interest in this Lease to any corporation which controls,
is controlled by, or is under common control with the original Tenant
to this Lease by means of an ownership interest of more than fifty
percent (50%).;
(2) Tenant may assign its interest in the lease to
a corporation which results from a merger, consolidation or other
reorganization in which Tenant is not the surviving corporation, so
long as the surviving corporation has a net worth at the time of such
assignment that is equal to or greater than the net worth of Tenant
immediately prior to such transaction; and
(3) Tenant may assign this Lease to a corporation
which purchases or otherwise acquires all or substantially all of the
assets of Tenant, so long as such acquiring corporation has a net worth
at the time of such assignment that is equal to or greater than the net
worth of Tenant immediately prior to such transaction.
14.2 Transfer by Landlord. Landlord and its successors
in interest shall have the right to transfer their interest in this
Lease and the Project at any time and to any person or entity. In the
event of any such transfer, the Landlord originally named herein (and,
in the case of any subsequent transfer, the transferor) from the date
of such transfer, shall be automatically relieved, without any further
act by any person or entity, of all liability for the performance or
the obligations of the Landlord hereunder which may accrue after the
date of such transfer. After the date of any such transfer, the term
"Landlord" as used herein shall mean the transferee of such interest in
the Premises.
15. General Provisions.
15.1 Landlord's Right to Enter. Landlord and its Agents
may enter the Premises at any reasonable time after giving at least
twenty-four (24) hours' prior notice to Tenant (and immediately in the
case of emergency) for the purpose of: (i) inspecting the same; (ii)
posting notices of non-responsibility; (iii) supplying any service to
be provided by Landlord to Tenant; (iv) showing the Premises to
prospective purchasers, mortgagees or tenants; (v) making necessary
alterations, additions of repairs, (vi) performing Tenant's obligations
when Tenant has failed to do so after written notice from Landlord;
(vii) placing upon the Premises ordinary "for lease" signs or "for
sale" signs; and (viii) responding to an emergency. Landlord shall
have the right to use any and all means Landlord may deem necessary and
proper to enter the Premises in an emergency. Any entry into the
Premises obtained by Landlord in accordance with this 15.1 shall not
be a forcible or unlawful entry into, or a detainer of, the Premises,
or an eviction, actual or constructive, of Tenant from the Premises.
15.2 Surrender of the Premises: Upon the expiration or
sooner termination of this Lease, Tenant shall vacate an surrender the
Premises to Landlord broom clean and in the same condition as existed
at the Commencement Date, except for (i) reasonable wear and tear, (ii)
damage caused by any peril or condemnation, and (iii) contamination by
Hazardous Materials for which Tenant is not responsible pursuant to
7.2A or 7.2B. In this regard, reasonable wear and tear shall be
construed to mean wear and tear caused to the Premises by the natural
aging process which occurs in spite of prudent application of the best
standards for maintenance, repair and janitorial practices, and does
not include items of neglected or deferred maintenance. If Landlord so
requests, Tenant shall, prior to the expiration or sooner termination
of this Lease, (i) remove any Tenant's Alterations which Tenant is
required to remove pursuant to 5.2 and repair all damage caused by
such removal, and (ii) return the Premises or any part thereof to its
original configuration existing as of the time the Premises were
delivered to Tenant. If the Premises are not so surrendered at the
termination of this Lease, Tenant shall be liable to Landlord for all
costs incurred by Landlord in returning the Premises to the required
condition, plus interest on all costs incurred at the Agreed Interest
Rate. Tenant shall indemnify Landlord against loss or liability
resulting from delay by Tenant in so surrendering the Premises,
including, without limitation, any losses to Landlord due to lost
opportunities to lease to succeeding tenants.
15.3 Holding Over. This Lease shall terminate without
further notice at the expiration of the Lease Term. Any holding over
by Tenant after expiration of the Lease Term shall not constitute a
renewal or extension of the Lease or give Tenant any rights in or to
the Premises except as expressly provided in this Lease. Any holding
over after such expiration with the written consent of Landlord shall
be construed to be a tenancy from mouth to mouth on the same terms and
conditions herein specified insofar as applicable except that Base
Monthly Rent shall be increased to an amount equal to one hundred fifty
percent (150%) of the Base Monthly Rent payable during the last full
calendar month of the Lease Term.
15.4 Subordination. The following provisions shall govern
the relationship of this Lease to any Security Instrument:
A. The Lease is subject and subordinate to all Security
Instruments existing as of the Effective Date. However, if any Lender
so requires, this Lease shall become prior and superior to any such
Security Instrument.
B. At Landlord's election, this Lease shall become
subject and subordinate to any Security Instrument created after the
Effective Date. Notwithstanding such subordination, Tenant's right to
quiet possession of the Premises shall not be disturbed so long
as Tenant is not in default and performs all of its obligations under
this Lease, unless this Lease is otherwise terminated pursuant to its
terms.
C. Tenant shall upon request execute any document or
instrument reasonably required by any Lender to make this Lease either
prior or subordinate to a Security Instrument, which may include such
other matters as the Lender customarily and reasonably requires in
connection with such agreements, including provisions that the Lender
not be liable for (i) the return of any security deposit unless the
Lender receives it from Landlord, and (ii) any defaults on the part of
Landlord occurring prior to the time the Lender takes possession of the
Project in connection with the enforcement of its Security Instrument.
Tenant's failure to execute any such document or instrument within ten
(10) days after written demand therefor shall constitute an Event of
Tenant's Default. Tenant approves as reasonable the form of
subordination agreement attached to this Lease as Exhibit F.
15.5 Mortgagee Protection and Attornment. In the event of
any default on the part of the Landlord, Tenant will use reasonable
efforts to give notice by registered mail to any Lender whose name has
been provided to Tenant and shall offer such Lender a reasonable
Opportunity to cure the default, including time to obtain possession of
the Premises by power of sale or judicial foreclosure or other
appropriate legal proceedings, if such should prove necessary to effect
a cure. Tenant shall attorn to any purchaser of the Premises at any
foreclosure sale or private sale conducted pursuant to any Security
Instrument encumbering the Premises, or to any grantee or transferee
designated in any deed given in lieu of foreclosure.
15.6 Estoppel Certificates and Financial Statements. At
all times during the Lease Term, each party agrees, following any
request by the other party, promptly to execute and deliver to the
requesting party within ten (10) days following delivery of such
request an estoppel certificate: (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, (ii) stating the date to which
the rent and other charges are paid in advanced, if any, (iii)
acknowledging that there are not, to the certifying party's knowledge,
any uncured defaults on the part of any party hereunder or, if there
are uncured defaults, specifying the nature of such defaults, and (iv)
certifying such other information about the Lease as may be reasonably
required by the requesting party. A failure to deliver an estoppel
certificate within fifteen (15) days after delivery of a request
therefor shall be a conclusive admission that, as of the date of the
request for such statement: (i) this Lease is unmodified except as may
be represented by the requesting party in said request and is in full
force and effect, (ii) there are no uncured defaults in the requesting
party's performance, and (iii) no rent has been paid more than thirty
(30) days in advance. At any time during the Lease Term (but not more
often than once in any twelve (12) calendar month period) Tenant shall,
upon fifteen (15) days' prior written notice from Landlord, provide
Tenant's most recent financial statement and financial statements
covering the twenty-four (24) month period prior to the date of such
most recent financial statement to any existing Lender or to any
potential Lender or buyer of the Premises. Such statements shall be
prepared in accordance with generally accepted accounting principles
and, if such is the normal practice of Tenant, shall be audited by an
independent certified public accountant.
15.7 Reasonable Consent. Whenever any party's approval or
consent is required by this Lease before an action may be taken by the
other party, such approval or consent shall not be unreasonably
withheld or delayed.
15.8 Notices. Any notice required or desired to be given
regarding this Lease shall be in writing and may be given by personal
delivery, by facsimile telecopy, by courier service, or by mail. a
notice shall be deemed to have been given (i) on the third business day
after mailing if such notice was deposited in the United States mail,
certified or registered, postage prepaid, addressed to the party to be
served at its Address for Notices specified in Section P or Section Q
of the Summary (as applicable), (ii) when delivered if given by
personal delivery, and (iii) in all other cases when actually received
at the party's Address for Notices. Either party may change its
address by giving notice of the same in accordance with this 15.8,
provided, however, that any address to which notices may be sent must
be a California address.
15.9 Attorneys' Fees. In the event either Landlord or
Tenant shall bring any action or legal proceeding for an alleged breach
of any provision of this Lease, to recover rent, to terminate this
Lease or otherwise to enforce, protect or establish any term or
covenant of this Lease, the prevailing party shall be entitled to
recover as a part of such action or proceeding, or in a separate action
brought for that purpose, reasonable attorneys' fees, court costs, and
experts' fees as may be fixed by the court.
15.10. Corporate Authority. If Tenant is a corporation
(or partnership), each individual executing this Lease on behalf of
Tenant represents and warrants that he is duly authorized to execute
and deliver this Lease on behalf of such corporation in accordance with
the by-laws of such corporation (or partnership in accordance with the
partnership agreement of such partnership) and that this Lease is
binding upon such corporation (or partnership) in accordance with its
terms. Each of the persons executing this Lease on behalf of a
corporation does hereby covenant and warrant that the party for whom it
is executing this lease is a duly authorized and existing corporation,
that it is qualified to do business in California, and that the
corporation has full right and authority to enter into this Lease.
15.11 Miscellaneous. Should any provision of this Lease
prove to be invalid or illegal, such invalidity or illegality shall in
no way affect, impair or invalidate any other provision hereof, and
such remaining provisions shall remain in full force and effect. Time
is of the essence with respect to the performance of every provision of
this Lease in which time of performance is a factor. The captions used
in this Lease are for convenience only and shall not be considered in
the construction or interpretation of any provision hereof. any
executed copy of this Lease shall be deemed an original for all
purposes. This Lease shall, subject to the provisions regarding
assignment, apply to and bind the respective heirs, successors,
executors, administrators and assigns of Landlord and Tenant. "Party"
shall mean Landlord or Tenant, as the context implies. This Lease
shall be construed and enforced in accordance with the laws of the
State of California. The language in all parts of this Lease shall in
all cases be construed as a whole according to its fair meaning, and
not strictly for or against either Landlord or Tenant. When the
context of this Lease requires, the neuter gender includes the
masculine the feminine, a partnership or corporation or joint venture,
and the singular includes the plural. The terms "shall," "will" and
"agree" are mandatory. The term "may" is permissive. When a party is
required to do something by this Lease, it shall do so at its sole cost
and expense without right of reimbursement from the other party unless
a provision of this Lease expressly requires reimbursement. Landlord
and Tenant agree that (i) Tenant's Gross Leasable Area of the Premises
includes any atriums, depressed loading docks, covered entrances or
egresses, and covered loading areas, (ii) each has had an opportunity
to determine to its satisfaction the actual area of the Project and the
Premises, (iii) all measurements of area contained in this Lease are
conclusively agreed to be correct and binding upon the parties, even if
a subsequent measurement of any one of these areas determines that it
is more or less than the amount of area reflected in this Lease, and
(iv) any such subsequent determination that the area is more or less
than shown in this Lease shall not result in a change in any of the
computations of rent, improvement allowances, or other matters
described in this Lease where area is a factor. Where a party hereto
is obligated not to perform any act, such party is also obligated to
restrain any others within its control from performing said act,
including the Agents of such party. Landlord shall not become or be
deemed a partner or a joint venturer with Tenant by reason of the
provisions of this Lease.
15.12 Termination by Exercise of Right. If this Lease is
terminated pursuant to its terms by the proper exercise of a right to
terminate specifically granted to Landlord or Tenant by this Lease,
then this Lease, then this Lease shall terminate thirty (30) days after
the date the right to terminate is properly exercised (unless another
date is specified in that part of the Lease creating the right, in
which event the date so specified for termination shall prevail), the
rent and all other charges due hereunder shall be prorated as of the
date of termination, and neither Landlord nor Tenant shall have any
further rights or obligations under this Lease except for those that
have accrued prior to the date of termination or those obligations
which this Lease specifically provides are to survive termination.
This 15.12 does not apply to a termination of this Lease by Landlord
as a result of an Event of Tenant's Default.
15.13 Brokerage Commissions. Each party hereto (i)
represents and warrants to the other that it has not had any dealings
with any real estate brokers, leasing agents or salesmen, or incurred
any obligations for the payment of real estate brokerage commissions or
finder's fees which would be earned or due and payable by reason of the
execution of this Lease, other than to the Retained Real Estate Brokers
described in Section R of the Summary, and (ii) agrees to indemnify,
defend, and hold harmless the other party from any claim for any such
commission or fees which result from the actions of the indemnifying
party. Landlord shall be responsible for the payment of any commission
owned to the Retained Real Estate Brokers if there is a separate
written commission agreement between Landlord and the Retained Real
Estate Brokers for the payment of a commission as a result of the
execution of this Lease.
15.14 Force Majeure. Any prevention, delay or stoppage
due to strikes, lockouts, inclement weather, labor disputes, inability
to obtain labor, materials, fuels or reasonable substitutes therefor,
governmental restrictions, regulations, controls, action or inaction,
civil commotion, fire or other acts of God, and other causes beyond the
reasonable control of the party obligated to perform (except financial
inability) shall excuse the performance, for a period equal to the
period of any said prevention, delay or stoppage, of any obligation
hereunder except the obligation of Tenant to pay rent to any other sums
due hereunder.
15.15 Entire Agreement. This Lease constitutes the entire
agreement between the parties, and there are no binding agreements or
representations between the parties except as expressed herein. Tenant
acknowledged that neither Landlord nor Landlord's Agents has made any
legally binding representation or warranty as to any matter except
those expressly set forth herein, including any warranty as to (i)
whether the Premises may be used for Tenant's intended use under
existing Law, (ii) the suitability of the premises or the Project for
the conduct of Tenant's business, or (iii) the condition of any
improvements. There are no oral agreements between Landlord and Tenant
affecting this Lease, and this Lease supersedes and cancels any and all
previous negotiations, arrangements, brochures, agreements and
understandings, if any, between Landlord and Tenant or displayed by
Landlord to Tenant with respect to the subject matter of this Lease.
This instrument shall not be legally binding until it is executed by
both Landlord and Tenant. No subsequent change or addition to this
Lease shall be binding unless in writing and signed by Landlord and
Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed this
Lease with the intent to be legally bound thereby, to be effective as
of the Effective Date.
LANDLORD:
XXXXXX XX ASSOCIATES, L.P.,
a Delaware limited partnership
By: Xxxxxx XX Company, LLC,
a California limited liability
company
Its: General Partner
By: The Xxxxxx Group of
Companies, Inc.,
a California corporation
Its: Managing Member
By:
Xxxxxxx X. Xxxxxxxxxxx
Its: President
TENANT:
IMEDIA CORPORATION,
A California Corporation
By:
