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EXHIBIT 10.13
SECOND AMENDMENT TO LEASE
This Second Amendment to Lease ("Amendment"), dated for reference
purposes only as January 16, 1996, is made and entered into by and between
WHC-SIX REAL ESTATE LIMITED PARTNERSHIP ("Landlord"), and SEAGATE TECHNOLOGY,
INC., a Delaware corporation ("Tenant").
RECITALS
A. Landlord and Tenant are parties to that certain Lease dated April
18, 1995 ("Lease"), pursuant to which Landlord leased to Tenant, and Tenant
leased from Landlord, certain premises commonly known as Xxxxx 000, 00000
Xxxxxxx Xxxxx Xxxxxxxxx, Cupertino, California. Except as otherwise provided in
this Amendment, all capitalized terms used herein shall have the same meanings
and definitions as set forth in the Lease.
B. Landlord and Tenant desire to amend the Lease on the terms and
conditions set forth below.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which is hereby acknowledged, Landlord and Tenant hereby agree to amend the
Lease as follows:
1. Expansion Space. Commencing on the Expansion Space
Commencement Date (as defined below), Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, certain additional space located on the
second floor of the Building consisting of a rentable area of approximately
4,685 square feet ("Expansion Space"), which Expansion Space is commonly known
as Xxxxx 000, 00000 Xxxxxxx Xxxxx Xxxxxxxxx, Cupertino, California and is shown
as cross-hatched on Exhibit "A" attached to this Amendment. Except as otherwise
provided in this Amendment, commencing on the Expansion Space Commencement Date,
(i) whenever the term "Premises" is used in the Lease, such term shall include
the Expansion Space, and (ii) all terms and conditions of the Lease shall apply
to the Expansion Space as if it were part of the original Premises demised to
Tenant under the Lease.
2. Expansion Space Commencement Date.
2.1 In General. As used in this Amendment, the term
"Expansion Space Commencement Date" shall mean the earliest to occur of the
following, as reasonably determined by Landlord: (i) the date the applicable
local governmental authority (e.g., the city in which the Building is located)
approves the improvements ("Expansion Space Improvements") which Tenant is to
construct within the Expansion Space pursuant to Exhibit "B" attached to this
Amendment, as evidenced by a final signed-off building permit or certificate of
occupancy for the Expansion Space Improvements;
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(ii) the date Landlord's architect certifies that the Expansion Space
Improvements have been substantially completed (except for punch list items);
(iii) the date Tenant occupies the Expansion Space or any portion thereof for
any purpose, including the storage of Tenant's inventory (provided, however, any
entry upon the Expansion Space by Tenant pursuant to Section 2.3 below shall not
trigger the Expansion Space Commencement Date for purposes of this subsection
(iii)); or (iv) April 1, 1996.
2.2 Expansion Space Commencement Date Memorandum. When
the Expansion Space Commencement Date is determined, the parties shall execute a
Commencement Date Memorandum, in a form substantially similar to the form
attached to the Lease as Exhibit "C" (modified as necessary to relate to the
Expansion Space), setting forth the Expansion Space Commencement Date.
2.3 Early Entry. Tenant shall be permitted to enter the
Premises prior to the Expansion Space Commencement Date for the sole purposes of
constructing the Expansion Space Improvements in accordance with Exhibit "B"
attached hereto and installing Tenant's trade fixtures and equipment. Any such
entry shall be subject to and in accordance with all the terms and provisions of
this Lease (and, for purposes of such application, the term "Premises" as used
in the Lease shall be deemed to include the Expansion Space), including, without
limitation, the provisions of Section 14(a) relating to Tenant's indemnification
of Landlord.
3. Adjustments.
3.1 Square Footage. Effective as of the Expansion Space
Commencement Date, the size of the Premises shall be deemed increased by reason
of the inclusion of the Expansion Space, from approximately 39,676 rentable
square feet to approximately 44,361 rentable square feet.
3.2 Base Rent. Commencing as of the Expansion Space
Commencement Date, monthly Base Rent payable by Tenant under the Lease shall be
increased by the sum of Nine Thousand One Hundred Thirty-five Dollars and
Seventy-five Cents ($9,135.75) per month. Based upon such increase, the monthly
Base Rent payable by Tenant under the Lease commencing on the Expansion Space
Commencement Date and continuing during the balance of the initial Term shall be
increased from Seventy-three Thousand Four Hundred Dollars and Sixty Cents
($73,400.60) to Eighty-two Thousand Five Hundred Thirty-six Dollars and
Thirty-five Cents ($82,536.35). Concurrently with Tenant's execution of this
Amendment, Tenant shall pay to Landlord the sum of Nine Thousand One Hundred
Thirty-five Dollars and Seventy-five Cents ($9,135.75), which sum shall be
applied by Landlord against the monthly Base Rent payable by Tenant for the
first full calendar month following the Expansion Space Commencement Date, as
increased above. Base Rent shall
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continue to be paid subject to and in accordance with Section 4 of the Lease.
If the Expansion Space Commencement Date is a date other than
the first day of a calendar month, then the Base Rent for the calendar month
during which the Expansion Space Commencement Date occurs shall be prorated on
the basis of a thirty (30) day month, at the rate of the current monthly Base
Rent for the period (i.e., $73,400.60) during such month from the first day of
such month through and including the day immediately preceding the Expansion
Space Commencement Date, and at the rate of the increased monthly Base Rent
(i.e., $82,536.35) for the period during such month from and including the
Expansion Space Commencement Date through and including the last day of such
month.
3.3 Tenant's Percentage Share. Effective as of the
Expansion Space Commencement Date, Tenant's Percentage Share of increases in
Operating Expenses and Real Property Taxes shall be increased from 51% to 57%.
3.4 Parking Spaces. Effective as of the Expansion Space
Commencement Date, the number of non-exclusive parking spaces available to
Tenant pursuant to Section 30 of the Lease within the Building's parking
facilities shall be increased from 130 to 147.
4. Condition of the Expansion Space. Tenant agrees to accept the
Expansion Space and all areas outside of the Expansion Space in "as is"
condition as of the date that the Expansion Space is delivered by Landlord to
Tenant, and Tenant acknowledges and agrees that Landlord has made no
representation or warranty whatsoever to Tenant regarding the Expansion Space or
the suitability of the Expansion Space, Common Areas and any of the facilities
associated with the Expansion Space, for Tenant's stated or intended use. For
purposes of applying Section 19 of the Lease to the surrender of the Expansion
Space, the term "Commencement Date" as used therein shall mean the Expansion
Space Commencement Date.
5. Brokers. Each party warrants and represents to the other that
it has had no dealings with any real estate broker or agent in connection with
the negotiation of this Amendment other than Colliers Xxxxxxx International,
Inc. ("Broker") (whose commission is to be paid by Landlord pursuant to the
terms of a separate written agreement between Landlord and Broker), and that it
knows of no real estate broker or agent other than Broker who is or might be
entitled to a commission in connection with this Amendment. Each party shall
indemnify and hold harmless the other from and against any and all liabilities
or expenses arising out of claims made by any other broker or individual for
commissions or fees related to the use or alleged use of the services of any
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broker or individual by the indemnifying party. The foregoing indemnity and hold
harmless obligations shall survive the expiration or sooner termination of the
Lease.
6. General.
6.1 Effect of Amendment; Ratification. Except as
otherwise modified by this Amendment, the Lease shall remain unmodified and in
full force and effect. In the event of any conflict or inconsistency between the
terms and conditions of the Lease and the terms and conditions of this
Amendment, the terms and conditions of this Amendment shall prevail.
6.2 Attorneys' Fees. The provisions of the Lease
respecting payment of attorney's fees shall also apply to this Amendment.
6.3 Counterparts. If this Amendment is executed in
counterparts, each counterpart shall be deemed an original.
6.4 Authority to Execute Amendment. Each individual
executing this Amendment on behalf of a partnership or corporation represents
that he or she is duly authorized to execute and deliver this Amendment on
behalf of the partnership and/or corporation and that this Amendment is binding
upon the corporation or partnership in accordance with its terms.
6.5 Governing Laws. This Amendment and any enforcement of
the agreements and modifications set forth above shall be governed by and
construed in accordance with the laws of the State of California.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as
of the date first written above.
LANDLORD: TENANT:
WHC-Six Real Estate Limited Partnership, SEAGATE TECHNOLOGY, INC., a
a Delaware limited partnership Delaware corporation
By: JER WHC-SIX Services, Inc., a /s/ Xxxxxxx X. Xxxxxx
Virginia Corporation, its By:
Managing General Partner -------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------
/s/Xxxxxxx McGavir Title: Vice President, Corp.
Facilities
-----------------------------------
By:_________________________ and Real Estate
XXXXXXX MCGAVIR
Vice President
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EXHIBIT "A"
Diagram of Expansion Space
[To be attached with Expansion Space shown as cross-hatched]
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EXHIBIT "B"
WORK LETTER
(Tenant Build-Out; Tenant Improvement Allowance)
This Exhibit is attached to and made a part of that certain First
Amendment to Lease dated January 16, 1996 ("Amendment"), by and between WHC-SIX
REAL ESTATE LIMITED PARTNERSHIP, as "Landlord", and SEAGATE TECHNOLOGY, INC., as
"Tenant", for the certain Expansion Space known as Suite 200, 19925 Stevens
Creek Boulevard, Cupertino, California.
Unless otherwise defined herein, capitalized terms used in
this Work Letter shall have the same meanings as set forth in the Amendment.
(a) PLANS AND SPECIFICATIONS. Tenant shall cause the
construction of tenant improvements within the Expansion Space ("Tenant
Improvements"), all in accordance with the provisions set forth below.
Within five (5) days after its execution of the
Amendment, Tenant shall deliver to Landlord preliminary plans ("Preliminary
Plans"), to be utilized in the preparation of final working drawings and
specifications for the Tenant Improvements. Promptly (but in no event less than
five (5) business days) after its receipt of the Preliminary Plans, Landlord
shall return the same to Tenant marked and accompanied by comments and
Landlord's required revisions. Within five (5) days thereafter, Tenant shall
submit two (2) sets of revised Preliminary Plans, revised to reflect and conform
to Landlord's comments and requirements, to Landlord for its final review and
approval. Within five (5) days following Landlord's approval of the Preliminary
Plans, Tenant shall cause its architect to prepare and submit two (2) copies of
working drawings and specifications ("Working Plans") to Landlord for its review
and approval. Landlord shall advise Tenant promptly after Landlord's receipt of
the Working Plans of any required revisions. Within five (5) days thereafter,
Tenant shall submit two (2) copies of the revised Working Plans to Landlord for
its final review and approval.
Concurrently with the above review and approval
process, Tenant shall submit all plans and specifications to the City of
Cupertino ("City") and other applicable governmental agencies to obtain
governmental approvals and issuance of necessary permits and licenses to
construct the Tenant Improvements as shown on the Working Plans.
(b) CONSTRUCTION OF TENANT IMPROVEMENTS. Tenant shall
cause the construction of the Tenant Improvements to be
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carried out in compliance with the Working Plans, all applicable zoning laws and
regulations, applicable covenants, conditions and restrictions, and otherwise in
compliance with the provisions of Section 10 of the Lease. Prior to the
commencement of construction, Tenant shall obtain course of construction and
builder's "all risk" insurance in such amounts and form as Landlord requires,
liability insurance in the form and amounts required under the Lease, and such
performance bonds in form and amounts as Landlord requires.
Tenant shall cause the construction of the Tenant
Improvements to be carried out with such materials, equipment, contractors and
subcontractors as Tenant shall select, all of which shall be approved by
Landlord. Landlord hereby approves of South Bay Construction as Tenant's general
contractor for its construction of the Tenant Improvements, subject however to
such general contractor complying with all applicable requirements of this Work
Letter. Within ten (10) days after the approval of the final Working Plans in
accordance with subparagraph (a) above or as soon as is reasonably possible
thereafter, Tenant shall submit to Landlord for its review and approval (i)
copies of all proposed construction contracts between Tenant and all contractors
and between such contractors and all subcontractors for the Tenant Improvements,
together with such background information on such contractors and subcontractors
as Landlord may require; (ii) a listing of the make, model, type, grade and all
other characteristics requested by Landlord, of all materials, equipment and
fixtures which Tenant proposes to install in or use in connection with the
Tenant Improvements; and (iii) a budget setting forth in itemized fashion the
costs of all materials, equipment, fixtures, contractors, subcontractors,
laborers, permits, fees, licenses, and all other costs and expenses Tenant
proposes to incur in connection with the construction of the Tenant
Improvements, specifically also including a development review fee to be paid to
Landlord in connection with its review, oversight and related functions under
this Work Letter in an amount equal to two and one-half percent (2.5%) of the
total Allowance * (as defined below) utilized by Tenant pursuant to subparagraph
(d) below (hereafter collectively the "Tenant Improvements Costs"). All such
matters shall be subject to the approval of Landlord prior to the commencement
of construction of the Tenant Improvements, in Landlord's reasonable discretion.
Tenant shall have the responsibility to obtain all
necessary construction and building permits and licenses necessary for the
construction of the Tenant Improvements. Tenant shall cause construction of the
Tenant Improvements in a good and workmanlike manner in strict accordance with
the approved Working Plans. All Tenant Improvements Costs shall be paid for by
and shall be the sole responsibility of the Tenant (other than to the extent
reimbursed by the Allowance as set forth below), including
* PROVIDED BY LANDLORD
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without limitation all costs of utilities, services and insurance on the
Expansion Space arising out of the construction of the Tenant Improvements. All
construction of the Tenant Improvements shall be performed and completed lien
free, and Tenant hereby indemnifies and agrees to defend and hold Landlord and
the Expansion Space free and harmless from any and all claims, losses, damages,
actions and causes of action as may be incurred as a result of work performed or
materials furnished in connection with construction of the Tenant Improvements.
Landlord shall have the right to post notices of non-responsibility at such
locations as Landlord may desire prior to the commencement of construction of
the Tenant Improvements.
(c) CHANGE ORDERS. Tenant may from time to time request
and obtain change orders during the course of construction of the Tenant
Improvements, provided that:
(i) each such request shall be reasonable and in
writing signed by or on behalf of Tenant;
(ii) each such request shall not result in any
major structural change in the Building or Tenant
Improvements;
(iii) Landlord shall have the sole and absolute
right to approve or disapprove any requested change order, in
Landlord's discretion;
(iv) all costs arising out of any approved change
order, if any, shall be borne by Tenant;
(v) any resulting delay in the completion of the
Tenant Improvements arising out of such change order shall not
delay or extend the Commencement Date.
(d) ALLOWANCE. Landlord agrees to provide Tenant a tenant
improvement allowance ("Allowance") in an amount up to, but not exceeding,
Thirty-one Thousand One Hundred Two Dollars and Fifty Cents ($31,102.50) for the
construction of the Tenant Improvements; provided, however, Tenant may elect to
increase the Allowance to an amount up to, but not exceeding, Forty-one Thousand
Four Hundred Seventy Dollars ($41,470) by providing Landlord with written notice
of such election at the time Tenant submits to Landlord the budget described in
the second paragraph of subparagraph (b) above. The Allowance shall be applied
by Tenant against the Tenant Improvements Costs incurred in the construction of
the Tenant Improvements which have been approved by the Landlord in Tenant's
proposed budget pursuant to subparagraph (b) above, and the provisions for
disbursement set forth below. In no event shall any portion of the Allowance be
used for any purpose other than the approved costs in the budget
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for the Tenant Improvements Costs. Any and all costs in excess of the Allowance
required to complete the construction of the Tenant Improvements in accordance
with subparagraph (b) above shall be the sole and exclusive obligation and
responsibility of Tenant.
On or before the fifth (5th) calendar day of every
month, Tenant shall submit to Landlord for its review and approval AIA Form No.
G702 and No. G703 invoices (or comparable invoices acceptable to Landlord) for
work performed and materials furnished to the Premises in connection with the
construction of the Tenant Improvements ("Payment Request"). Each Payment
Request shall be accompanied by a certification signed by the Tenant's general
contractor and the Tenant's architect showing that the work reflected in such
Payment Request was performed in accordance with the approved Working Plans and
the terms of all approved construction contracts; and the total costs to
construct the Tenant Improvements, including change orders, and the amount
expended for such items to date and the estimated costs to complete the Tenant
Improvements. In addition, each Payment Request shall be accompanied by lien
release waivers from all contractors, subcontractors and materialmen to be paid
through such Payment Request and, with respect to completed work, final lien
release waivers, all in form and content acceptable to Landlord. Within ten (10)
business days after Landlord's approval of each such Payment Request, Landlord
shall cause to be disbursed to Tenant's general contractor an amount equal to
ninety percent (90%) of such approved Payment Request times the ratio which the
total Allowance to be utilized by Tenant bears to the total construction cost
set forth in the certifications by Tenant's general contractor and architects.
Landlord shall cause to be disbursed the ten percent (10%) retention amount, up
to the limit of the Allowance, upon the issuance of an unqualified Certificate
of Occupancy for the Expansion Space and the expiration of the period in which
liens may be filed against the Premises by any contractor, subcontractor or
materialmen furnishing goods or services thereto in connection with the Tenant
Improvements.
In the event that the Allowance (as the same may be
increased pursuant to this subparagraph (d) above) is more than Thirty-one
Thousand One Hundred Two Dollars and Fifty Cents ($31,102.50) ("Base Allowance
Amount"), then the amount by which the Allowance (as so increased) exceeds the
Base Allowance Amount shall be fully amortized over the period commencing on the
Expansion Space Commencement Date through the balance of the initial Term of the
Lease at a rate of eleven percent (11%) per annum ("Amortization Rate"), and all
such amortized amounts shall be paid by Tenant to Landlord as Rent at the time
and in the manner required for Tenant to pay monthly Base Rent as set forth in
the Lease. Upon the occurrence of any Event of Default under the Lease, Landlord
shall have the right, in addition to all other rights and remedies of Landlord,
to accelerate the remaining
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principal balance of the excess Allowance amount amortized hereunder and to
require that the entire amount thereof be immediately paid in full by Tenant.
Should Tenant fail to pay such remaining principal amount within five (5)
business days after such election by Landlord, such remaining principal amount
shall thereafter bear interest at the Amortization Rate.
(e) RIGHTS OF LANDLORD. Throughout the course of
construction of the Tenant Improvements, Landlord shall have the unconditional
right to review and inspect such construction by and through its agents and
employees, including without limitation Landlord's architect. If at any time
Landlord disapproves of the materials or workmanship of the Tenant Improvements
by Tenant, Landlord shall promptly give Tenant written notice thereof,
specifying the deficiencies or defects therein. Upon receipt of any such notice,
Tenant shall immediately commence correction of the defect or deficiency in a
manner and to a condition acceptable to Landlord. Should Tenant fail to commence
or complete any such correction as herein provided, or should Landlord deliver
to Tenant three (3) or more such notices during the course of construction of
the Tenant Improvements, Landlord shall have the immediate right to order the
discontinuance of any further construction of the Tenant Improvements by or on
behalf of Tenant, and Landlord may, but shall not be obligated to, complete the
construction of such Tenant Improvements in accordance with the Working Plans.
Should Landlord elect to complete the Tenant Improvements as herein provided,
Landlord shall be entitled to any and all funds remaining in the Allowance to
pay for the costs of completing said construction, and any additional costs
incurred in connection therewith shall be the obligation of and shall be paid by
Tenant within ten (10) days after written demand by Landlord. In addition,
Landlord shall be entitled to a construction fee for the costs of administering
and completing the Tenant Improvements in an amount equal to five percent (5%)
of all costs incurred by Landlord in completing the Tenant Improvements, which
fee shall not be part of the Allowance or the development review fee
incorporated into the Tenant Improvement Costs.
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FIRST AMENDMENT TO LEASE
I. PARTIES AND DATE.
THIS FIRST AMENDMENT TO LEASE (this "Amendment") dated as of MAY 1,
1995 is entered into by and between WHC - SIX REAL ESTATE LIMITED PARTNERSHIP
("Landlord"), and SEAGATE TECHNOLOGY, INC. A DELAWARE CORPORATION ("Tenant").
II. RECITALS.
A. Landlord and Tenant entered into that certain
Standard Form Lease dated as of APRIL 18, 1995, for the Premises known as 00000
XXXXXXX XXXXX XXXXXXXXX, XXXXX 000, XXXXXXXXX, Xxxxxxxxxx. The capitalized terms
used and not otherwise defined herein shall have the same definitions as set
forth in the Lease.
B. Landlord and Tenant desire to modify the Lease as set
forth in this Amendment, which modifications shall be deemed effective as of the
date of this Amendment as indicated above.
III. MODIFICATIONS.
Landlord and Tenant hereby agree that the Lease shall be modified
and/or supplemented as follows:
TERM: The Term of the lease shall be extended one month for a total of 61
months at the same base rent.
OUTSIDE COMMENCEMENT DATE: The Outside Commencement Date of the lease shall be
extended one month to August 1, 1995.
IV. GENERAL.
A. Effect of Amendment; Ratification: Except to the
extent the Lease is modified by this Amendment, the terms and provisions of the
Lease shall remain unmodified and in full force and effect. In the event of
conflict between the terms of the Lease and the terms of this Amendment, the
terms of this Amendment shall prevail.
B. Attorneys' Fees. The provisions of the Lease
respecting payment of attorney's fees shall also apply to this Amendment.
C. Counterparts. If this Amendment is executed in
counterparts, each counterpart shall be deemed an original.
D. Authority To Execute Amendment. Each individual
executing this Amendment on behalf of a partnership or corporation represents
that he or she is duly authorized to execute and deliver this Amendment on
behalf of the partnership and/or corporation and agrees to deliver evidence of
his or her authority to Landlord upon request by Landlord.
E. Governing Law. This Amendment and any enforcement of
the agreements and modifications set forth above shall be governed by and
construed in accordance with the laws of
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date and year first above written.
WHC-SIX Real Estate Limited Partnership, a Delaware limited partnership
By: JER WHC-SIX Services, Inc., a Virginia corporation, its Managing General
Partner
/s/ Signature Illegible
By:
---------------------
Name: Xxxxxxxx X. Xxxxxx
------------------
Title: Vice President
-----------------
"Tenant"
SEAGATE TECHNOLOGY, INC., a DELAWARE CORPORATION
------------------------------------------------
/s/ Signature Illegible
By:
---------------------
Name: X. X. Xxxxxx
------------------
Title: Sr. Vice President, Administration
----------------------------------
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BASIC LEASE INFORMATION
DATE: April 18, 1995
LANDLORD: WHC-SIX REAL ESTATE LIMITED PARTNERSHIP
TENANT: SEAGATE TECHNOLOGY, INC., a Delaware corporation
PREMISES: Xxxxx 000, 00000 Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx, XX
(approx. 39,676 rentable sq. ft.)
USE: General office use
TERM: Sixty (60) months
OUTSIDE
COMMENCEMENT DATE: July 1, 1995
BASE RENT: Months 01 - 60: $73,400.60 per month
TENANT'S PERCENTAGE
SHARE OF OPERATING
EXPENSES AND REAL
PROPERTY TAXES: Fifty-one percent (51%)
BASE YEAR: First twelve (12) months of Term
SECURITY DEPOSIT: None
ADVANCE RENT: $73,400.60
BROKER: LANDLORD: Colliers Xxxxxxx International, Inc.
TENANT: Colliers Xxxxxxx International, Inc.
CONTRACT MANAGER: X'Xxxxxxx Property Services, Inc.
ADDRESS FOR NOTICES: LANDLORD: c/o X'Xxxxxxx Property Services, Inc.
0000 Xxxxxx Xxxxx, Xxx. 000
Xxxxxx, XX 00000 Attn: J.R. Xxxxxx
CONTRACT 0000 X. Xxxxx Xx., Xxx. 000
MANAGER: Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx
TENANT: Prior to Commencement Date:
000 Xxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Following Commencement Date:
The Premises
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TENANT IMPROVEMENTS: See Exhibit B
Exhibits X, X, X, X, X, X, X and H
/s/ Signature Illegible/s/ Signature Illegible
INITIALS: ____________________________
LANDLORD TENANT
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THIS LEASE, which is effective as of the date set forth in the Basic Lease
Information, is entered into by Landlord and Tenant, as set forth in the Basic
Lease Information. Terms which are capitalized in this Lease shall have the
meanings set forth in the Basic Lease Information.
1. Premises. Landlord leases to Tenant, and Tenant leases from
Landlord, the Premises described in the Basic Lease Information, together with
the right in common to use the Common Areas of the Building and the Property
(the term "Building" shall mean that certain building shown on Exhibit "A" and
commonly known as 00000 Xxxxxxx Xxxxx Xxxxxxxxx and "Property" shall mean all of
the real property shown on Exhibit "A"). The Common Areas shall mean the areas
and facilities within the Building and the Property provided and designated by
Landlord for the general use, convenience or benefit of Tenant and other tenants
and occupants of the Building (e.g., common entrances and hallways; restrooms;
trash disposal facilities; janitorial, telephone and electrical closets; and
unreserved parking areas).
2. Term.
(a) Lease Term. The Term of this Lease shall commence on
the Commencement Date (as defined in Subsection 2(b)) and, unless terminated on
an earlier date in accordance with the terms of this Lease, shall extend for the
period (i.e., Term) specified in the Basic Lease Information.
(b) Commencement Date. The "Commencement Date" of this
Lease shall be the earliest to occur of the following, as reasonably determined
by Landlord: (i) the date the applicable local governmental authority (e.g., the
city in which the Building is located) approves the improvements
("Improvements") which Tenant is to construct pursuant to Exhibit "B", as
evidenced by a final signed-off building permit or certificate of occupancy for
the Improvements; (ii) the date Landlord's architect certifies that the
Improvements have been substantially completed (except for punch list items); or
(iii) the date Tenant occupies the Premises. Notwithstanding the foregoing, in
no event shall the Commencement Date be later than the Outside Commencement Date
set forth in the Basic Lease Information (i.e., July 1, 1995).
(c) [Intentionally Omitted.]
(d) Commencement Date Memorandum. When the Commencement
Date is determined, the parties shall execute a Commencement Date Memorandum, in
the form attached hereto as Exhibit "C", setting forth the Commencement Date and
the expiration date ("Expiration Date") of this Lease.
(e) Early Entry. Tenant is permitted to enter the
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Premises prior to the Commencement Date for the purposes of fixturing or any
purpose other than occupancy permitted by Landlord, the entry shall be subject
to all the terms and provisions of this Lease, except that the payment of Rent
shall commence as of the Commencement Date.
3. Rent.
(a) Rent. As used in this Lease, the term "Rent" shall
include: (i) the Base Rent; (ii) Tenant's Percentage Share of the total dollar
increase, if any, in the Operating Expenses paid or incurred by Landlord during
the calendar year over the Operating Expenses paid or incurred by Landlord in
the Base Year ("Base Year") specified in the Basic Lease Information; provided,
however, that if the Building are less then ninety-five percent (95%) occupied
during the Base Year, the Base Year Operating Expenses shall be adjusted to
equal Landlord's reasonable estimate of Operating Expenses for the Base Year if
ninety-five percent (95%) of the total rentable area of the Building were
occupied; (iii) Tenant's Percentage Share of the total dollar increase, if any,
in the Real Property Taxes paid or incurred by Landlord during the calendar year
over the Real Property Taxes paid or incurred during the Base Year; and (iv) all
other amounts which Tenant is obligated to pay under the terms of this Lease.
(b) Unpaid Rent. Any amount of Rent which is not paid
within five (5) business days after the date when due shall bear interest from
the date due until the date paid at the rate ("Interest Rate") which is the
lesser of twelve percent (12%) per annum or the maximum rate permitted by law.
(c) Late Payment Charges. Tenant hereby acknowledges that
late payment by Tenant to Landlord of Rent and any other sums to be paid to
Landlord hereunder after the expiration of any applicable grace period will
cause Landlord to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult to ascertain. Such costs include, but are
not limited to, processing and accounting charges and late charges which may be
imposed on Landlord by the terms of any trust deed covering the Premises.
Accordingly, if any installment of Rent of any other sums due from Tenant shall
not be received by Landlord within five (5) business days after the date when
due, Tenant shall pay to Landlord a late charge equal to six percent (6%) of
such overdue amount. The parties hereby agree that such late charges represents
a fair and reasonable estimate of the cost Landlord will incur by reason of late
payment by Tenant. Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount, nor
prevent Landlord from exercising any of the other rights and remedies granted
hereunder.
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(d) Payments. All payments due from Tenant to Landlord
shall be paid to Contract Manager (or such other entity designated by Landlord),
without prior demand or notice, deduction or offset, in lawful money of the
United States of America at Landlord's address for notices hereunder or to such
other person at such other place as Landlord may from time to time designate by
notice to Tenant.
4. Base Rent. Tenant shall pay Base Rent and all other amounts
owing under this Lease as Rent to Contract Manager (or other entity designated
by Landlord), in advance, on the first day of each calendar month of the Term,
at Contract Manager's address for notices (as set forth in the Basic Lease
Information) or at such other address as Landlord may designate. The Base Rent
shall be the amount set forth in the Basic Lease Information. Notwithstanding
the foregoing, Tenant shall pay the Base Rent for the first (1st) month of the
Term concurrently with its execution of this Lease.
5. Additional Rent - Annual Rent Adjustment/Operating Expenses.
(a) Increase in Operating Expenses. Tenant shall pay as
Rent Tenant's Percentage Share of the total dollar increase, if any, in the
Operating Expenses paid or incurred by Landlord during each twelve (12) month
period following the Base Year (each such twelve (12) month period being
hereinafter referred to as a "Lease Year") over the Operating Expenses paid or
incurred by Landlord during the Base Year.
(b) Operating Expenses. The term "Operating Expenses"
shall mean (i) all of Landlord's direct costs and expenses of operation, repair
and maintenance of the Building and the Property, including the Common Areas and
supporting facilities, as determined by Landlord in accordance with generally
accepted accounting principles or other recognized accounting principles,
consistently applied; (ii) costs, or a portion thereof, properly allocable to
the Building or Common Areas of any capital improvements made to the Building or
Common Areas by Landlord after the date of this Lease which comprise
labor-saving devises or other equipment which Landlord reasonably determines are
necessary to improve the operating efficiency of any system within the Building
or Common Areas (such as an energy management computer system); and (iii) costs
properly allocable to the Building or Common Areas of any capital improvements
made to the Building or Common Areas by Landlord after the date of this Lease
that are required under any governmental law or regulation that was not
applicable to the Building and Common Areas at the time they were constructed,
or that are reasonably required for the health and safety of tenants in the
Building. If Landlord elects to self-insure or includes the Property under
blanket insurance
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policies covering multiple properties, then the term "Operating Expenses" shall
include the portion of the cost of such self-insurance or blanket insurance
allocated by Landlord to this Property. If less than ninety-five percent (95%)
of the rentable area of the Building is occupied, Operating Expenses shall be
adjusted to equal Landlord's reasonable estimate of Operating Expenses if
ninety-five percent (95%) of the total rentable area of the Building were
occupied.
Notwithstanding the foregoing, for purposes of calculating Tenant's
Percentage Share of increases in Operating Expenses (i) in no event shall
Operating Expenses (excluding insurance costs, expenses and deductibles)
increase by more than six percent (6%) per Lease Year, and (ii) in the event the
cost of any capital improvement made by or at the direction of Landlord exceeds
the sum of Ten Thousand Dollars ($10,000), then the cost thereof in excess of
Ten Thousand Dollars ($10,000) shall be amortized over the useful life of the
improvement in question (as reasonably determined by Landlord), together with
interest upon the unamortized balance at the Interest Rate or such higher rate
as may have been paid by Landlord on funds borrowed for the purpose of
constructing the capital improvements, and the unamortized Ten Thousand Dollars
($10,000) shall be included as part of "Operating Expenses" during the year in
which the capital improvement in question was completed, and the amortized
excess amount shall be included as part of "Operating Expenses" over the useful
life of the capital improvement in question.
(c) Estimates of Increases in Operating Expenses. During
the last month of the Base Year and each Lease Year during the Term, or as soon
thereafter as practicable, Landlord shall give Tenant written notice of
Landlord's estimate of any amount of Operating Expenses in excess of the
Operating Expenses incurred in the Base Year and the amount of the increase
which will be payable for the ensuing Lease Year. On or before the first day of
each month during the ensuring Lease Year, Tenant shall pay to Landlord
one-twelfth (1/12) of the estimated amount; provided, however, that if notice is
not given in the last month described above, Tenant shall continue to pay on the
basis of the then applicable Rent until the month after the notice is given. If
at any time it appears to Landlord that the increased amount payable for the
current Lease Year will vary from Landlord's estimate by more than five percent
(5%), Landlord may give notice to Tenant of Landlord's revised estimate for the
Lease Year in question, and subsequent payments by Tenant for such Lease Year
shall be based on the revised estimate; provided, however, that Landlord shall
not give notice of a revised estimate for any Lease Year more frequently than
once a calendar quarter.
(d) Annual Adjustment. Within one hundred twenty (120)
days after the close of each Lease Year of the Term, or as soon
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after the one hundred twenty (120) day period as practicable, Landlord shall
deliver to Tenant a statement of the adjustment to the Operating Expenses for
the prior Lease Year. If, on the basis of the statement, Tenant owes an amount
that is less than the estimated payments for the Lease Year previously made by
Tenant, Landlord shall apply the excess to the next payment of increased
Operating Expenses due. If, on the basis of the statement, Tenant owes an amount
that is more than the estimated payments for the Lease Year previously made by
the Tenant, Tenant shall pay the deficiency to Landlord within thirty (30) days
after delivery of the statement. The statement of Operating Expenses shall be
presumed correct and shall be deemed final and binding upon Tenant unless (i)
Tenant in good faith objects in writing thereto within thirty (30) days after
delivery of the statement to Tenant (which writing shall state, in reasonable
detail, all of the reasons for the objection); and (ii) Tenant pays in full,
within thirty (30) days after delivery of the statement to Tenant, any amount
owed by Tenant with respect to the statement which is not in dispute. If Tenant
objects to Landlord's allocation to this Property of the cost of self-insurance
or blanket insurance, such allocation shall nonetheless be presumed correct and
shall be deemed final and binding upon Tenant unless Tenant's timely written
objection includes credible evidence that Landlord could have obtained
substantially comparable insurance coverage for this Property alone at lower
cost.
6. Additional Rent - Annual Rent Adjustments/Real Property Taxes.
(a) Increase in Real Property Taxes. Tenant shall pay as
Rent Tenant's Percentage Share of the total dollar increase, if any, in the Real
Property Taxes paid or incurred by Landlord in each Lease Year over the Real
Property Taxes paid or incurred by Landlord during the Base Year.
(b) Real Property Taxes. The term "Real Property Taxes"
shall mean any ordinary or extraordinary form of assessment or special
assessment, license fee, rent tax, levy, penalty (if a result of Tenant's
delinquency), or tax, other than net income, premium, estate, succession,
inheritance, transfer or franchise taxes, imposed by any authority having the
direct or indirect power to tax, or by any city, county, state or federal
government for any maintenance or improvement or other district or division
thereof, relating to all or any part of the property, including the Building and
Premises. The term shall include all transit charges, housing fund assessments,
real estate taxes and all other taxes relating to the Premises, Building and/or
Property, all other taxes which may be levied in lieu of real estate taxes, all
assessments, assessment bonds, levies, fees, and other governmental charges
(including, but not limited to, charges for traffic facilities, improvements,
child care, water services
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studies and improvements, and fire services studies and improvements) for
amounts necessary to be expended because of governmental orders, whether general
or special, ordinary or extraordinary, unforeseen as well as foreseen, of any
kind and nature for public improvement, services, benefits or any other purposes
which are assessed, levied, confirmed, imposed or become a lien upon the
Premises, Building or Property or become payable during the Term.
Landlord may, in its sole discretion but without obligation,
contest the amount or validity of any Real Property Taxes at any time during the
Term. In the event Tenant desires to contest the amount or validity of any Real
Property Taxes not otherwise contested by Landlord during the Term, Tenant shall
first provide Landlord with written notice of such desire. Within thirty (30)
days of such notice, Landlord shall elect to either pursue such contest itself
or permit Tenant to pursue such contest. In the event Landlord elects to permit
Tenant to pursue such contest, then, and only then, Tenant may contest the
amount or validity of the Real Property Taxes in question by appropriate
proceedings, provided that Tenant gives Landlord prior notice of any such
contest and keeps Landlord advised as to all proceedings, and provided further
that Tenant shall continue to reimburse Landlord pursuant to Section 6(d) below
for Landlord's payment of such Real Property Taxes unless such proceedings shall
operate to prevent or stay such payment and the collection of the tax so
contested. Landlord shall join in any such proceedings if any applicable laws,
statutes, ordinances or government rule, regulation or requirement shall so
require, provided that Tenant shall hold harmless, indemnify, protect and defend
Landlord from and against any liability, claim, demand, cost or expense in
connection therewith, including, but not limited to, actual attorneys' fees and
costs reasonably incurred.
(c) Acknowledgment of Parties. It is acknowledged by
Landlord and Tenant that Proposition 13 was adopted by the voters of the State
of California in the June, 1978 election, and that assessments, taxes, fees,
levies and charges may be imposed by governmental agencies for such purposes as
fire protection, street, sidewalk, road, utility construction and maintenance,
refuse removal and for other governmental services which formerly may have been
provided without charge to property owners or occupants. It is the intention of
the parties that all new and increased assessments, taxes, fees, levies and
charges due to Proposition 13 or any other cause are to be included within the
definition of Real Property Taxes for purposes of this Lease.
(d) Estimates of Increases in Real Property Taxes. During
the last month of the Base Year and each Lease Year during the Term, or as soon
thereafter as practicable, Landlord shall give Tenant written notice if Landlord
estimates that the Real
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Property Taxes will exceed the Real Property Taxes incurred in the Base Year,
and the amount of the increase which will be payable for the ensuing Lease Year.
On or before the first day of each month during the ensuring Lease Year, Tenant
shall pay to Landlord one-twelfth (12th) of the estimated amount; provided,
however, that if notice is not given in the last month described above, Tenant
shall continue to pay on the basis of the then applicable Rent until the month
after the notice is given. If at any time it appears to Landlord that the
increased amount payable for the current Lease Year will vary from Landlord's
estimate by more than five percent (5%), Landlord may give notice to Tenant of
Landlord's revised estimate for the Lease Year in question, and subsequent
payments by Tenant for such Lease Year shall be based on the revised estimate;
provided, however, that Landlord shall not give notice of a revised estimate for
any Lease Year more frequently than once a calendar quarter.
(e) Annual Adjustment. Within one hundred twenty (120)
days after the close of each Lease Year of the Term, or as soon after the one
hundred twenty (120) day period as practicable, Landlord shall deliver to Tenant
a statement of the adjustment to the Real Property Taxes for the prior Lease
Year; the statement shall be final and binding upon Landlord and Tenant. If, on
the basis of the statement, Tenant owes an amount that is less than the
estimated payments for the Lease Year previously made by Tenant, Landlord shall
apply the excess to the next payment of increased Real Property Taxes due. If,
on the basis of the statement, Tenant owes an amount that is more than the
estimated payments for the Lease Year previously made by the Tenant, Tenant
shall pay the deficiency to Landlord within thirty (30) days after delivery of
the statement.
(f) Taxes on Tenant Improvements and Personal Property.
Notwithstanding any other provision hereof, Tenant shall pay the full amount of
any increase in Real Property Taxes during the Term resulting from any and all
alterations and tenant improvements of any kind whatsoever placed in, on or
about the Premises for the benefit of, at the request of, or by Tenant. Tenant
shall pay, prior to delinquency, all taxes assessed or levied against Tenant's
personal property in, on or about the Premises. When possible, Tenant shall
cause its personal property to be assessed and billed separately from the real
or personal property of Landlord.
7. Proration of Rent. If the Commencement Date is not the first
day of the month, or if the end of the Term is not the last day of the month,
Rent shall be prorated on a monthly basis (based upon a thirty (30) day month)
for the fractional month during the month which this Lease commences or
terminates. The termination of this Lease shall not affect the obligations of
Landlord and
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Tenant pursuant to Subsections 5(d) and 6(e) which are to be performed after the
termination.
8. Condition of Premises. Tenant agrees to accept the Premises,
the Common Areas and all of the areas outside of the Premises in "as-is"
condition as of the date that possession of the Premises are delivered by
Landlord to Tenant, and acknowledges and agrees that Landlord has made no
representation or warranty whatsoever to Tenant regarding the Premises or the
suitability of the Premises, Common Areas and any of the facilities associated
with the Premises, for Tenant's stated or intended use. Notwithstanding the
foregoing, Landlord shall be responsible for making any alterations or
improvements to the Common Areas that may be required to be made by applicable
law and regulations. The cost of any such alterations or improvements shall be
borne solely by Landlord, unless the alterations or improvements in question are
made necessary due to Tenant's particular use of the Premises, in which event
Tenant shall reimburse Landlord for such costs and expenses within fifteen (15)
days following Landlord's written demand therefor.
9. Uses of Premises.
(a) Tenant shall use the Premises solely for the use set forth
in the Basic Lease Information, and Tenant shall not use the Premises for any
other purpose without obtaining the prior written consent of Landlord, which
consent shall be given or withheld in the sole and absolute discretion of
Landlord with the requirement of reasonableness in the exercise of that
discretion. Tenant shall, at its own cost and expense, comply with all laws,
rules, regulations, orders, permits, licenses and ordinances issued by any
governmental authority which relate to the condition, use or occupancy of the
Premises during the Term of this Lease. Tenant shall not use the Premises in any
manner that will constitute waste, nuisance, or unreasonable annoyance
(including, without limitation, use of loudspeakers or sound or light apparatus
that can be heard or seen outside the Premises) to other tenants in the
Building.
(b) "Hazardous Substance" shall mean the substances included
within the definitions of the term "Hazardous Substance" under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 et seq., and the California Xxxxxxxxx-Xxxxxxx-Xxxxxx
Hazardous Substance Account Act, California Health & Safety Code Section 25300
et seq., and regulations promulgated thereunder, as amended. "Hazardous Waste"
shall mean (a) any waste listed as or meeting the identified characteristics of
a "Hazardous Waste" under the Resource Conservation and Recovery Act of 1976, 42
U.S.C. Section 6901 et seq., and regulations promulgated pursuant thereto,
collectively "RCRA", or (b) any waste meeting the identified
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characteristics of "Hazardous Waste" under California Hazardous Waste Control
Law, California Health and Safety Code Section 25100 et seq., and regulations
promulgated pursuant thereto, collectively "CHWCL". "Hazardous Waste Facility"
shall mean a hazardous waste facility as defined under CHWCL.
(c) Tenant covenants that, at its sole cost and expense, it
will comply with all applicable laws, rules, regulations, orders, permits,
licenses and operating plans of any governmental authority with respect to the
use, handling, generation, transportation, storage, treatment and/or disposal of
hazardous substances or wastes, and Tenant will provide Landlord with copies of
all permits, registrations or other similar documents that authorize Tenant to
conduct any such activities in connection with its authorized use of the
Premises. Additionally, Tenant agrees to comply with the Rules and Regulations
attached hereto as Exhibit "E" (the "Rules"), the requirements of the Board of
Fire Underwriters or Landlord's insurance carrier, and to comply with covenants,
conditions and restrictions ("CC&Rs") applicable to the Building.
(d) Tenant agrees that it shall not operate on the Premises
any facility required to be permitted or licensed as a Hazardous Waste Facility
or for which interim status as such is required. Nor shall Tenant store any
Hazardous Wastes on the Premises for ninety (90) days or more.
(e) Tenant agrees to comply with all applicable laws, rules,
regulations, orders, and permits relating to underground storage tanks
(including any installation, monitoring, maintenance, closure and/or removal of
such tanks) as such tanks are defined in California Health and Safety Code,
Section 25281(u), including, without limitation, complying with California
Health and Safety Code Section 25280-25299.6 and the regulations promulgated
thereunder. Tenant shall furnish to Landlord copies of all registrations and
permits for all underground storage tanks.
(f) If applicable, Tenant shall provide to Landlord in writing
the following information and/or documentation at the Commencement Date and
within sixty (60) days of any change in the required information and/or
documentation:
(i) A list of all hazardous substances and/or wastes
that Tenant uses, handles, generates, transports, stores, treats or disposes in
connection with its operations on the Premises.
(ii) Copies of all Material Safety Data Sheets ("MSDSs")
required to be completed with respect to operations of Tenant at the Premises in
accordance with Title 8, California Code
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of Regulations Section 5194 or 42 U.S.C. Section 11021, or any amendments
thereto. In lieu of this requirement, Tenant may provide a Hazardous Materials
Inventory Sheet that details the MSDSs.
(iii) Copies of all hazardous waste manifests, as
defined in Title 22, California Code of Regulations Section 66481, that Tenant
is required to complete in all connections with its operations at the Premises.
(iv) A copy of any Hazardous Materials Management Plans
required with respect to Tenant's operations.
(v) Copies of any Contingency Plans and Emergency
Procedures required of Tenant due to its operations in accordance with Title 22,
Chapter 30, Article 20, of the California Code of Regulations, and any
amendments thereto.
(vi) Copies of any biennial reports to be furnished to
California Department of Health Services relating to hazardous substances or
wastes.
(vii) Copies of all industrial waste water discharge
permits.
(g) Tenant shall secure Landlord's prior written approval for
any proposed receipt, storage, possession, use, transfer or disposal of
"Radioactive Materials" or "Radiation", as such materials are defined in Title
17, California Code of Regulations Section 30100(w) and (z) or possessing the
characteristics of the materials so defined, which approval Landlord may
withhold in its sole and absolute discretion. The Tenant in connection with any
authorized receipt, storage, possession, use, transfer or disposal or
radioactive materials or radiation shall:
(i) Comply with all federal, state and local laws,
rules, regulations, orders, licenses and permits;
(ii) Furnish Landlord with a list of all radioactive
materials or radiation received, stored, possessed, used, transferred or
disposed; and
(iii) Furnish Landlord with all licenses, registration
materials, inspection reports, orders and permits in connection with the
receipt, storage, possession, use, transfer or disposal or radioactive materials
or radiation.
(h) Tenant shall comply with any and all applicable laws,
rules, regulations, and orders with respect to the release into the environment
of any hazardous wastes or substances or
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radiation or radioactive materials. Tenant shall notify Landlord in writing of
any unauthorized release into the environment within twenty-four (24) hours of
the time at which Tenant becomes aware of such release.
(i) Tenant shall indemnify, defend and hold Landlord
harmless from any and all claims, losses (including, but not limited to, loss of
rental income and loss due to business interruption), damages (including
diminution in value or loss of rental value following expiration or earlier
termination of the Term), liabilities, costs, legal fees, and expenses of any
sort arising out of or relating to any unauthorized release into the environment
of Hazardous Substances or Hazardous Wastes or Radioactive Materials by Tenant
or any of Tenant's agents, contractors or invitees, or Tenant's failure to
comply with Subparagraphs (a)-(h) of this section of the Lease. Tenant shall not
be responsible for any unauthorized release into the environment of Hazardous
Substances or Hazardous Wastes or Radioactive Materials by Landlord or
Landlord's agents or contractors.
(j) Tenant agrees to cooperate with Landlord in
furnishing Landlord with complete information regarding Tenant's receipt,
handling, use, storage, transportation, generation, treatment and/or disposal of
hazardous substances or wastes or radiation or radioactive materials. Upon
request, Tenant agrees to grant Landlord reasonable access at reasonable times
to the Premises to inspect Tenant's receipt, handling, use, storage,
transportation, generation, treatment and/or disposal of hazardous substances or
wastes or radiation or radioactive materials without being deemed guilty of any
disturbance of Tenant's use or possession and without being liable to Tenant in
any manner.
(k) Notwithstanding Landlord's rights of inspection and
review under this paragraph, Landlord shall have no obligation or duty to so
inspect or review, and no third party shall be entitled to rely on Landlord to
conduct any sort of inspection or review by reason of the provisions of this
paragraph.
(l) Tenant shall fully complete, execute and,
concurrently with Tenant's execution and delivery of this Lease to Landlord,
deliver to Landlord an Environmental Questionnaire and Disclosure Statement in
the form attached to this Lease as Exhibit "F." The completed Environmental
Questionnaire and Disclosure Statement shall be deemed incorporated into this
Lease for all purposes, and Landlord shall be entitled to fully rely on the
information contained therein.
(m) This Section 9 of the Lease shall survive termination
of the Lease.
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10. Alterations.
(a) Permitted Alterations. Tenant shall give Landlord not
less than ten (10) days' notice of any alteration Tenant desires to make to the
Premises. Tenant shall not make any alteration in, or about the Premises without
the prior written consent of Landlord unless the alteration does not affect the
Building structure, the exterior appearance of the Building, the roof or the
Building systems (e.g., electrical systems) and the cost of the alterations is
not in excess of Five Thousand Dollars ($5,000). Tenant shall comply with all
rules, laws, ordinances and requirements at the time Tenant makes any alteration
and shall deliver to Landlord a complete set of "as built" plans and
specifications for each alteration. Tenant shall be solely responsible for
maintenance and repair of all alterations made by Tenant. As used in this
Section, the term "alteration" shall include any alteration, addition or
improvement.
(b) Liens. If, because of any act or omission of Tenant
or anyone claiming by, through, or under Tenant, any mechanics' lien or other
lien is filed against the Premises, the Building, the Property or against other
property of Landlord (whether or not the lien is valid or enforceable), Tenant
shall, at its own expense, cause it to be discharged of record within a
reasonable time, not to exceed thirty (30) days, after the date of the filing.
In addition, Tenant shall defend and indemnify Landlord and hold it harmless
from any and all claims, losses, damages, judgments, settlements, costs and
expenses, including attorneys' fees, resulting from the lien.
(c) Ownership of Alterations. Any alteration made by
Tenant shall immediately become Landlord's property (other than removable
fixtures). Except as provided in Subsection 10(d), Landlord may require Tenant
at Tenant's sole expense and by the end of the Term, to remove any alterations
made by Tenant and to restore the Premises to its condition prior to the
alteration; provided, however, Tenant shall have no obligation to remove the
Tenant Improvements constructed by Tenant pursuant to Exhibit "B" attached to
this Lease.
(d) Request Regarding Removal Obligation. At the time
that Tenant requests Landlord's consent to any alteration, Tenant may request
that Landlord notify Tenant if Landlord will require Tenant, at Tenant's sole
expense to remove any or all of the alteration by the end of the Term, and to
restore the premises to its condition prior to the alteration.
11. Repairs.
(a) Tenant's Obligations. Tenant, at all times during the
Term and at Tenant's sole cost and expense, shall keep the
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Premises and every part thereof in good condition and repair, ordinary wear and
tear, damage thereto not caused by Tenant, by fire, earthquake, acts of God or
the elements excepted. Tenant hereby waives all right to make repairs at the
expense of Landlord or in lieu thereof to vacate the Premises as provided in
California Civil Code Section 1942 or any other law, statute or ordinance now or
hereafter in effect.
(b) Landlord's Obligations. Landlord, at all times during
the Term and at its sole cost and expense, shall keep the structural portions of
the roof, the exterior walls and the foundation of the Building in good
condition and repair, ordinary wear and tear excepted and subject to Section 12
below. Landlord shall not be required to make any repairs under this Section
11(b) unless and until Tenant has notified Landlord in writing of the need for
such repair and Landlord shall have a reasonable period of time thereafter to
commence and complete said repair, if warranted. Landlord's repair obligations
under this Section 11(b) shall be limited to the cost of effecting the repair in
question and in no event shall Landlord be liable for any costs or expenses in
excess of said amounts, including, but not limited to, any consequential
damages, opportunity costs or lost profits incurred or suffered by Tenant.
12. Damage or Destruction.
(a) Landlord's Obligations to Rebuild. If the Premises
are damaged or destroyed, Landlord shall promptly and diligently repair the
Premises unless Landlord has the option to terminate this Lease as provided
herein, and Landlord elects to terminate.
(b) Right to Terminate. Landlord and Tenant each shall
have the option to terminate this Lease if the Premises or the Building is
destroyed or damaged by fire or other casualty, regardless of whether the
casualty is insured against under this Lease, if Landlord reasonably determines
that the repair of the Premises or the Building cannot be completed within one
hundred eighty (180) days after the casualty. If a party desires to exercise the
right to terminate this Lease as a result of a casualty, the party shall
exercise the right by giving the other party written notice of its election to
terminate within thirty (30) days after the damage or destruction, in which
event this Lease shall terminate fifteen (15) days after the date of the notice.
If neither Landlord nor Tenant exercises the right to terminate this Lease,
Landlord shall promptly commence the process of obtaining necessary permits and
approvals, and shall commence repair of the Premises or the Building as soon as
practicable and thereafter prosecute the repair diligently to completion, in
which event this Lease shall continue in full force and effect.
(c) Limited Obligation to Repair. Landlord's
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obligation,should Landlord elect or be obligated to repair or rebuild, shall be
limited to the Building shell and any tenant improvements which are constructed
and paid for by Landlord pursuant to Exhibit "B." Tenant, at its option and
expense, shall replace or fully repair all trade fixtures, equipment and other
improvements installed by Tenant and existing at the time of the damage or
destruction.
(d) Abatement of Rent. In the event of any damage or
destruction to the Premises which does not result in termination of this Lease,
the Base Rent shall be temporarily abated proportionately to the degree the
Premises are untenantable as a result of the damage or destruction, commencing
from the date of the damage or destruction and continuing during the period
required by Landlord to substantially complete its repair and restoration of the
premises; provided, however, that nothing herein shall preclude Landlord from
being entitled to collect the full amount of any rent loss insurance proceeds.
Tenant shall not be entitled to any compensation or damages from Landlord for
loss of the use of the Premises, damage to Tenant's personal property or any
inconvenience occasioned by any damage, repair or restoration. Tenant hereby
waives the provisions of Section 1932, Subdivision 2, and Section 1933,
Subdivision 4, of the California Civil Code, and the provisions of any similar
law hereafter enacted.
(e) Damage Near End of Term and Extensive Damage. In
addition to the rights to termination under Subsection 12(b), either Landlord or
Tenant shall have the right to cancel and terminate this Lease as of the date of
the occurrence of destruction or damage if the Premises or the Building is
substantially destroyed or damaged (i.e., there is damage or destruction which
Landlord determines would require more than three (3) months to repair) and made
untenantable during the last twelve (12) months of the Term. Landlord or Tenant
shall give notice of its election to terminate this Lease under this Subsection
12(e) within thirty (30) days after Landlord determines that the damage or
destruction would require more than three (3) months to repair. If neither
Landlord nor Tenant elects to terminate this Lease, the repair of the damage
shall be governed by Subsection 12(a) or 12(b) as the case may be.
(f) Insurance Proceeds. If this Lease is terminated,
Landlord may keep all the insurance proceeds resulting from the damage to the
Building, except for those proceeds which specifically insured Tenant's
interests.
13. [Intentionally Omitted.]
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14. Indemnity and Insurance.
(a) Indemnity. Except for Landlord's active negligence,
Tenant shall be responsible for, and shall indemnify Landlord and its agents,
employees, contractors, officers and directors and hold them harmless from, any
and all liability for any loss, damage or injury to person or property occurring
in, on or about the Premises, and Tenant hereby releases Landlord and its
agents, employees, contractors, officers and directors from any and all
liability for the same. Tenant's obligation to indemnify Landlord and its
agents, employees, contractors, officers and directors hereunder shall include
the duty to defend against any claims asserted by reason of any loss, damage or
injury, and to pay any judgments, settlements, costs, fees and expenses,
including attorneys' fees, incurred in connection therewith.
(b) Insurance. At all times during the term of this
Lease, Tenant shall carry, at its own expense, for the protection of Tenant,
Landlord, Landlord's constituent parts and Landlord's management agents, as
their interest may appear, one or more policies of commercial general public
liability and property damage insurance, issued by one or more insurance
companies licensed to do business in California, with minimum coverages of One
Million Dollars ($1,000,000) combined single limit for injury to persons or
property damage per accident and insuring against any and all liability for
which Tenant is responsible under this Lease. The insurance policy or policies
shall name Landlord, Landlord's constituent parts and Landlord's management
agents (including, without limitation, X.X. Xxxxxx Companies and X'Xxxxxxx
Property Services, Inc.) as additional insureds, and shall provide that the
policy or policies may not be canceled on less than thirty (30) days' prior
written notice to Landlord. Tenant shall furnish Landlord with certificates
evidencing the insurance. If Tenant fails to carry the insurance and furnish
Landlord with certificates of insurance after a request to do so, Landlord shall
have the right to obtain the insurance and collect the cost thereof from Tenant
as additional Rent.
15. Assignment and Subletting.
(a) Landlord's Consent. Tenant shall not assign, sublet
or otherwise transfer all or any portion of Tenant's interest in this Lease
(collectively "sublet") without Landlord's prior written consent, which consent
shall not be unreasonably withheld. Consent by Landlord to one sublet shall not
be deemed to be a consent to any subsequent sublet.
(b) Effect of Sublet. Each sublet to which Landlord has
consented shall be by an instrument in writing, in a form satisfactory to
Landlord as evidenced by Landlord's written
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approval. Each sublessee shall agree in writing, for the benefit of Landlord, to
assume, to be bound by and to perform the terms, conditions and covenants of
this Lease to be performed by Tenant. Tenant shall not be released from personal
liability for the performance of each term, condition and covenant of this
Lease, and Landlord shall have the right to proceed against Tenant without
proceeding against the subtenant.
(c) Information to be Furnished. If Tenant desires at any
time to sublet the Premises, Tenant shall first notify Landlord of its desire to
do so and shall submit in writing to Landlord: (i) the name of the proposed
subtenant; (ii) the nature of the proposed subtenant's business to be carried on
in the Premises; (iii) the terms and provisions of the proposed sublease and a
copy of the proposed sublease form; and (iv) such financial information,
including financial statements, as Landlord may reasonably request concerning
the proposed subtenant.
(d) Landlord's Election. At any time within five (5)
business days after Landlord's receipt of the information specified in
Subsection 15(c), Landlord may, by written notice to Tenant, elect either (i) to
consent to the sublet by Tenant; or (ii) to refuse its consent to the sublet. If
Landlord fails to elect either of the alternatives within the five (5) business
day period, it shall be deemed that Landlord has refused its consent to the
sublet. If Landlord refuses its consent, Landlord shall deliver to Tenant a
statement of the basis for its refusal. Any attempted sublet without Landlord's
consent shall not be effective.
(e) Payment Upon Sublet. If Landlord consents to the
sublet, Tenant may thereafter enter into a valid sublet of the Premises or
portion thereof, upon the terms and conditions set forth in the information
furnished by Tenant to Landlord pursuant to Subsection 15(c), subject to the
condition that fifty percent (50%) of any excess of the monies due to Tenant
under the sublet ("subrent") over the Rent required to be paid by Tenant
hereunder shall be paid to Landlord. Any subrent to be paid to Landlord pursuant
hereto shall be payable to Landlord as and with the Base Rent payable to
Landlord hereunder pursuant to the terms of Section 4. The term "subrent" as
used herein shall include any consideration of any kind received, or to be
received, by Tenant from the subtenant, if the sums are related to Tenant's
interest in this Lease or in the Premises, including, without limitation, bonus
money, and payments (in excess of fair market value thereof) for Tenant's
assets, fixtures, inventory, accounts, goodwill, equipment, furniture, general
intangibles and any capital stock or other equity ownership of Tenant.
(f) Executed Counterparts. No sublet shall be valid nor
shall any subtenant take possession of the Premises until an
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executed counterpart of the sublease has been delivered to Landlord and approved
in writing.
(g) Transfer to Purchaser. A transfer of this Lease to
one or more purchasers of a majority interest in Tenant shall be deemed a sublet
under this Lease.
(h) Transfers to Affiliates. Tenant may assign this Lease
or sublet the Premises, without Landlord's consent, to any corporation which
controls, is controlled by or is under common control with Tenant, or to any
corporation resulting from the merger or consolidation with Tenant, or to any
person or entity which acquires all the assets of Tenant as going concern of the
business that is being conducted on the Premises, provided that the assignee
assumes, in full, the obligations of Tenant under this Lease.
16. Default.
(a) Tenant's Default. At the option of Landlord, a
material breach of this Lease by Tenant shall exist if any of the following
events (severally, "Event of Default"; collectively, "Events of Default") shall
occur: (i) if Tenant shall have failed to pay Rent, including Tenant's
Percentage Share of increased Operating Expenses, Tenant's Percentage Share of
increased Real Property Taxes, or any other sum required to be paid hereunder
within three (3) days after the date when due, together with interest at the
Interest Rate, from the date the amount became due through the date of payment,
inclusive; (ii) if Tenant shall have failed to perform any term, covenant or
condition of this Lease except those requiring the payment of money, and Tenant
shall have failed to cure the breach within fifteen (15) days after written
notice from Landlord if the breach could reasonably be cured within the fifteen
(15) day period; provided, however, if the failure could not reasonably be cured
within the fifteen (15) day period, then Tenant shall not be in default unless
it has failed to promptly commence and thereafter continue to make diligent and
reasonable efforts to cure the failure as soon as practicable as reasonably
determined by Landlord; (iii) if Tenant shall have assigned its assets for the
benefit of its creditors; (iv) if the sequestration of, attachment of, or
execution on, any material part of the property of Tenant or any property
essential to the conduct of Tenant's business shall have occurred, and Tenant
shall have failed to obtain a return or release of the property within thirty
(30) days thereafter, or prior to sale pursuant to any sequestration, attachment
or levy, whichever is earlier; (v) if Tenant shall have failed to continuously
and uninterruptedly conduct its business in the Premises, or shall have
abandoned or vacated the Premises; (vi) if a court shall have made or entered
any decree or order adjudging Tenant to be insolvent, or approving as property
filed a petition seeking reorganization of Tenant, or
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directing the winding up or liquidation of Tenant, and the decree or order shall
have continued for a period of thirty (30) days; (vii) if Tenant shall make or
suffer any transfer which constitutes a fraudulent or otherwise avoidable
transfer under any provision of the federal Bankruptcy Laws or any applicable
state law; or (viii) if Tenant shall have failed to comply with the provisions
of Section 24 or 26. An Event of Default shall constitute a default under this
Lease.
(b) Remedies Upon Tenant's Default. Upon an Event of
Default, Landlord shall have the following remedies, in addition to all other
rights and remedies provided by law, equity, statute or otherwise provided in
this Lease, to which Landlord may resort cumulatively or in the alternative:
(i) Landlord may continue this Lease in full
force and effect, and this Lease shall continue in full force and effect as long
as Landlord does not terminate Tenant's right to possession, and Landlord shall
have the right to collect Rent when due. During the period Tenant is in default,
Landlord may enter the Premises and relet it, or any part of it, to third
parties for Tenant's account, provided that any Rent in excess of the Rent due
hereunder shall be payable to Landlord. Tenant shall be liable immediately to
Landlord for all costs Landlord incurs in reletting the Premises, including,
without limitation, brokers' commissions, expenses of cleaning and redecorating
the Premises required by the reletting and like costs. Reletting may be for a
period shorter or longer than the remaining Term of this Lease. Tenant shall pay
to Landlord the Rent and other sums due under this Lease on the dates the Rent
is due, less the Rent and other sums Landlord receives from any reletting. No
act by Landlord allowed by this Subsection (i) shall terminate this Lease unless
Landlord notifies Tenant in writing that Landlord elects to terminate this
Lease.
(ii) Landlord may terminate Tenant's right to
possession of the Premises at any time by giving written notice to that effect.
No act by Landlord other than giving written notice to Tenant shall terminate
this Lease. Acts of maintenance, efforts to relet the Premises or the
appointment of a receiver on Landlord's initiative to protect Landlord's
interest under this Lease shall not constitute a termination of Tenant's right
to possession. On termination, Landlord shall have the right to remove all
personal property of Tenant and store it at Tenant's costs and to recover from
Tenant as damages: (a) the worth at the time of award of unpaid Rent and other
sums due and payable which had been earned at the time of termination; plus (b)
the worth at the time of award of the amount by which the unpaid Rent and other
sums due and payable which would have been payable after termination until the
time of award exceeds the amount of the Rent loss that Tenant proves could have
been reasonably avoided; plus (c) the worth at the time of award of the amount
by which the
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unpaid Rent and other sums due and payable for the balance of the Term after the
time of award exceeds the amount of the Rent loss that Tenant proves could be
reasonably avoided; plus (d) any other amount necessary to compensate Landlord
for all the 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, without limitation, any costs or
expenses incurred by Landlord: (1) in retaking possession of the Premises,
including reasonable attorneys' fees and costs therefor; (2) maintaining or
preserving the Premises for reletting to a new tenant, including repairs or
alterations to the Premises for the reletting; (3) leasing commissions; (4) any
other costs necessary or appropriate to relet the Premises; and (5) at
Landlord's election, such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time by the laws of the State of
California.
The "worth at the time of award" of the amounts referred to in
Subsections (ii)(a) and (ii)(b) is computed by allowing interest at the lesser
of twelve percent (12%) per annum or the maximum rate permitted by law, on the
unpaid Rent and other sums due and payable from the termination date through the
date of award. The "worth at the time of award" of the amount referred to in
Subsection (ii)(c) is computed by discounting the amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award, plus one percent
(1%). Tenant waives redemption or relief from forfeiture under California Code
of Civil Procedure Sections 1174 and 1179, or under any other present or future
law, if Tenant is evicted or Landlord takes possession of the Premises by reason
of any default of Tenant hereunder.
(c) Landlord's Default. Landlord shall not be deemed to
be in default in the performance of any obligation required to be performed by
Landlord hereunder unless and until Landlord has failed to perform the
obligation within thirty (30) days after receipt of written notice by Tenant to
Landlord specifying wherein Landlord has failed to perform the obligation;
provided, however, that if the nature of Landlord obligation is such that more
than thirty (30) days are required for its performance, then Landlord, shall not
be deemed to be in default if Landlord shall commence the performance within the
thirty (30) day period and thereafter shall diligently prosecute the same to
completion.
17. Landlord's Right to Perform Tenant's Covenants. If Tenant
shall at any time fail to make any payment or perform any other act on its part
to be made or performed under this Lease, Landlord may, but shall not be
obligated to, make the payment or perform any other act to the extent Landlord
may deem desirable and, in connection therewith, pay expenses and employ
counsel. Any payment or performance by Landlord shall not waive or release
Tenant from any obligations of Tenant under this Lease. All sums
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so paid by Landlord, and all penalties, interest and costs in connection
therewith, shall de due and payable by Tenant on the next day after any payment
by Landlord, together with interest thereon at the Interest Rate, from that date
to the date of payment thereof by Tenant to Landlord, plus collection costs and
attorneys' fees. Landlord shall have the same rights and remedies for the
nonpayment thereof as in the case of default in the payment of Rent.
18. [Intentionally Omitted.]
19. Surrender of Premises. By taking possession of the Premises,
Tenant shall be deemed to have accepted the Premises and the Property in good,
clean and completed condition and repair, subject to all applicable laws, codes
and ordinances. On the expiration or early termination of this Lease, Tenant
shall surrender the Premises to Landlord in its condition as of the Commencement
Date, normal wear and tear excepted. Tenant shall remove from the Premises all
of Tenant's personal property, trade fixtures and any alterations required to be
removed pursuant to Section 10. Tenant shall repair damage or perform any
restoration work required by the removal. If Tenant fails to remove any personal
property, trade fixtures or alterations after the end of the Term, Landlord may
remove the property and store it at Tenant's expense, including interest at the
Interest Rate. If the Premises are not so surrendered at the termination of this
Lease, Tenant shall indemnify Landlord against all loss or liability resulting
from delay by Tenant in so surrendering the Premises, including, without
limitation, any claims made by any succeeding tenant, losses to Landlord due to
lost opportunities to lease to succeeding tenants, and attorneys' fees and
costs.
20. Holding Over. If Tenant remains in possession of all or any
part of the Premises after the expiration of the Term or the termination of this
Lease, the tenancy shall be month-to-month only and shall not constitute a
renewal or extension for any further term. In such event, Base Rent shall be
increased in an amount equal to one hundred and twenty-five percent (125%) of
the Base Rent during the last month of the Term (including any extensions), and
any other sums due under this Lease shall be payable in the amount, and at the
times, specified in this Lease. The month-to-month tenancy shall be subject to
every other term, condition, covenant and agreement contained in this Lease and
Tenant shall vacate the Premises immediately upon Landlord's request.
21. Access to Premises. Tenant shall permit Landlord and its
agents to enter the Premises at all reasonably scheduled times upon reasonable
notice, except in the case of an emergency (in which event no notice shall be
necessary), to inspect the Premises; to post Notices of Nonresponsibility and
similar notices
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and to show the Premises to interested parties such as prospective mortgagors,
purchasers and tenant; to make necessary alterations, additions, improvements or
repairs either to the Premises, the Building, or other premises within the
Building; and to discharge Tenant's obligations hereunder when Tenant has failed
to do so within a reasonable time after written notice from Landlord. The above
rights are subject to reasonable security regulations of Tenant, and to the
requirement that Landlord shall at all times act in a manner to cause the least
possible interference with Tenant's operations.
22. Signs. The size, design, color, location and other physical
aspects of any sign in or on the Building shall be subject to the CC&Rs, Rules
and Landlord's reasonable approval prior to installation, and to any appropriate
municipal or other governmental approvals. The costs of any permitted sign, and
the costs of its installation, maintenance and removal, shall be at Tenant's
sole expense and shall be paid within ten (10) days of Tenant's receipt of a
xxxx from Landlord for the costs. Landlord will provide initial directory and
suite signage at Landlord's expense.
Tenant shall be permitted to install a monument sign on the
Project, subject to and in accordance with the terms and conditions of this
paragraph. Such monument sign shall be installed by Tenant at its sole cost and
expense and the size, design, color, location and other physical aspects of such
monument sign shall be subject to the CC&Rs, Rules and Landlord's reasonable
approval prior to installation, and to any appropriate municipal or other
governmental approvals (and Landlord makes no representation or warranty to
Tenant as to the availability of such approvals). In addition, the installation
of such monument sign shall be subject to the terms and conditions of Section 10
above. During the Term, Tenant shall, at its sole cost and expenses, be solely
responsible for the repair and maintenance of such monument sign and, upon the
expiration or sooner termination of this Lease, Tenant shall, at its sole cost
and expense, remove the monument sign and promptly repair any damage to the
Project caused by such removal.
23. Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant each hereby waives and releases the other
of and from any and all rights of recovery, claim, action or cause of action
against the other, its subsidiaries, directors, agents, officers and employees,
for any loss or damage that may occur in the Premises, the Building or the
Property; to improvements to the Building or personal property (building
contents) within the Building; or to any furniture, equipment, machinery, goods
and supplies not covered by this Lease which Tenant may bring or obtain upon the
Premises or any additional improvements which Tenant may construct on the
Premises
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by reason of fire, the elements or any other cause which is required to be
insured against under this Lease, regardless of cause or origin, including
negligence of Landlord or Tenant and their agents, subsidiaries, directors,
officers and employees, to the extent insured against under the terms of any
insurance policies carried by Landlord or Tenant and in force at the time of any
such damage, but only if the insurance in question permits such a partial
release in connection with obtaining a waiver of subrogation from the insurer.
Because this Section will preclude the assignment of any claim mentioned in it
by way of subrogation or otherwise to an insurance company or any other person,
each party to this Lease agrees immediately to give to each insurance company
written notice of the terms of the mutual waivers contained in this Section and
to have the insurance policies properly endorsed, if necessary, to prevent the
invalidation of the insurance coverages by reason of the mutual waivers
contained in this Section.
24. Subordination.
(a) Subordinate Nature. Except as provided in Subsection
(b), this Lease is subject and subordinate to all ground and underlying leases,
mortgages and deeds of trust which now or may hereafter affect the Property, the
Building or the Premises, to the CC&Rs, and to all renewals, modifications,
consolidation, replacements and extensions thereof. Within ten (10) days after
Landlord's written request therefor, Tenant shall execute any and all documents
required by Landlord, the lessor under any ground or underlying lease
("Lessor"), or the holder or holders of any mortgage or deed of trust ("Holder")
to make this Lease subordinate to the lien of any lease, mortgage or deed of
trust, as the case may be.
(b) Possible Priority of Lease. If a Lessor or a Holder
advises Landlord that it desires or requires this Lease to be prior and superior
to a lease, mortgage or deed of trust, Landlord may notify Tenant. Within seven
(7) days of Landlord's notice, Tenant shall execute, have acknowledged and
deliver to Landlord any and all documents or instruments, in the form presented
to Tenant, which Landlord, Lessor or Holder deems necessary or desirable to make
this Lease prior and superior to the lease, mortgage or deed of trust.
(c) Recognition or Attornment Agreement. If Landlord or
Holder requests Tenant to execute a document subordinating this Lease, the
document shall provide that, so long as Tenant is not in default, Lessor or
Holder shall agree to enter into either a recognition or attornment agreement
with Tenant, or a new lease with Tenant upon the same terms and conditions as to
possession of the Premises, which shall provide that Tenant may continue to
occupy the Premises so long as Tenant shall pay the Rent and
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observe and perform all the provisions of this Lease to be observed and
performed by Tenant. Tenant agrees that a document in the form of Exhibit "H"
attached hereto shall satisfy the requirements of this Section 24(c).
25. Transfer of the Property. Upon transfer of the Property and
assignment of this Lease, Landlord shall be entirely freed and relieved of all
liability under any and all of its covenants and obligations contained in or
derived from this Lease occurring after the consummation of the transfer and
assignment, and from all liability for the Security Deposit. Tenant shall attorn
to any entity purchasing or otherwise acquiring the Premises at any sale or
other proceeding.
26. Estoppel Certificates. Within ten (10) days following written
request by Landlord, Tenant shall execute and deliver to Landlord an estoppel
certificate, in the form prepared by Landlord. The certificate shall: (i)
certify that this Lease is unmodified and in full force and effect or, if
modified, state the nature of the modification and certify that this Lease, as
so modified, is in full force and effect, and the date to which the Rent and
other charges are paid in advance, if any; (ii) acknowledge that there are not,
to Tenant's knowledge, any uncured defaults on the part of Landlord hereunder,
or if there are uncured defaults on the part of the Landlord, state the nature
of the uncured default; and (iii) evidence the status of the Lease as may be
required either by a lender making a loan to Landlord to be secured by deed of
trust or mortgage covering the Premises or a purchaser of the Property from
Landlord.
27. Mortgagee Protection. In the event of any default on the part
of Landlord, Tenant will give notice by registered or certified mail to any
beneficiary of a deed of trust or mortgagee of a mortgage covering the Property
and shall offer the beneficiary or mortgagee a reasonable opportunity to cure
the default, including time to obtain possession of the Property or the Premises
by power of sale or a judicial foreclosure, if such should provide necessary to
effect a cure.
28. Attorneys' Fees. If either party shall bring any action or
legal proceeding for damages for an alleged breach of any provision of this
Lease, to recover rent or other sums due, to terminate the tenancy of the
Premises or to enforce, protect or establish any term, condition or covenant of
this Lease or right of either party, the prevailing party shall be entitled to
recover, as a part of the action or proceedings, or in a separate action brought
for that purpose, reasonable attorneys' fees and court costs as may be fixed by
the court or jury. The prevailing party shall be the party which secures a final
judgment in its favor.
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29. Brokers. Tenant warrants and represents that it has had no
dealings with any real estate broker or agent in connection with the negotiation
of this Lease, except for any broker(s) specified in the Basic Lease
Information, and that it knows of no other real estate broker or agent who is or
might be entitled to a commission in connection with this Lease. Tenant shall
indemnify and hold harmless Landlord from and against any and all liabilities or
expenses arising out of claims made by any other broker or individual for
commissions or fees resulting from this Lease.
30. Parking. Tenant shall have the right (i) to park in one
hundred thirty (130) parking spaces located within the Building parking
facilities, exclusive of covered, visitor or reserved parking areas, in common
with other tenants of the Building, subject to the Rules, and (ii) to park in
eight (8) parking spaces reserved for the exclusive use of Tenant, subject to
the Rules, the location of which exclusive parking spaces shall be as reasonably
designated by Landlord. Tenant agrees not to use in excess of its proportionate
share of parking facilities and agrees to cooperate with Landlord and other
tenants in the use of the parking facilities. Landlord reserves the right, in
its absolute discretion, to determine whether the parking facilities are
becoming crowded and to allocate and assign parking spaces among Tenant and the
other tenants. Landlord shall not be liable to Tenant, nor shall this Lease be
affected, if any parking is impaired by moratorium, initiative, referendum, law,
ordinance, regulation or order passed, issued or made by any governmental or
quasi-governmental body.
31. Utilities and Services. Provided that there has been no Event
of Default, Landlord agrees to furnish or cause to be furnished, to the Premises
the utilities and services described in the standards for Utilities and
Services, set forth in Exhibit "D", subject to the conditions and in accordance
with the standards set forth therein. Landlord shall not be liable for, and
Tenant shall not be entitled to any abatement or deduction of Rent by reason of,
no eviction of Tenant shall result from and, further, Tenant shall not be
relieved from the performance of any covenant or agreement in this Lease
because, of Landlord's failure to furnish any of the foregoing when the failure
is caused by accident, breakage, or repairs, strikes, lockouts or other labor
disturbance or labor dispute of any character, governmental regulation,
moratorium or other governmental action, inability despite the exercise of
reasonable diligence to obtain electricity, water or fuel, or by any other cause
beyond Landlord's reasonable control. In the event of any failure, stoppage or
interruption thereof, Landlord shall diligently attempt to resume service.
32. [Intentionally Omitted.]
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33. Acceptance. Delivery of this Lease, duly executed by Tenant,
constitutes an offer to lease the Premises as set forth herein, and under no
circumstances shall such delivery be deemed to create an option or reservation
to lease the Premises for the benefit of Tenant. This Lease shall become
effective and binding only upon execution hereof by Landlord and delivery of a
signed copy to Tenant. Upon acceptance of Tenant's offer to lease under the
terms hereof and receipt by Landlord of the Rent for the first month of the Term
and the Security Deposit in connection with Tenant's submission of the offer,
Landlord shall be entitled to retain the sums and apply them to damages, costs
and expenses incurred by Landlord if Tenant fails to occupy the Premises. If
Landlord reject the offer, the sums shall be returned to Tenant.
34. Use of Building Name. Tenant shall not employ the name of the
Building nor the name of the business in which the Building is located in the
name or title of its business or occupation without Landlord's prior written
consent, which consent Landlord may withhold in its sole discretion. Landlord
reserves the right to change the name of the Building without Tenant's consent
and without any liability to Landlord; provided, however, in the event that
Tenant at any time occupies one hundred percent (100%) of the Building, Tenant,
at its sole cost and expense, shall be permitted to change the name of the
Building, which change shall be effective only during such period of one hundred
percent (100%) occupancy by Tenant. Thereafter, Landlord shall again have the
right to change the name of the Building without Tenant's consent and without
any liability to Landlord.
35. Recording. Neither Landlord nor Tenant shall record this
Lease, nor a short form memorandum of this Lease, without the prior written
consent of the other.
36. Quitclaim. Upon any termination of this Lease pursuant to its
terms, Tenant, at Landlord's request, shall execute, have acknowledged and
deliver to Landlord a quitclaim deed of all Tenant's interest in the Premises,
the Building and the Property created by this Lease, provided Landlord will
prepare said quitclaim deed at its own expense and shall bear all costs in
connection with the recording of the deed.
37. Notices. Any notice or demand required or desired to be given
under this Lease shall be in writing and shall be given by hand delivery,
electronic mail (e.g., telecopy) or the United States mail. Notices which are
sent by electronic mail shall be deemed to have been given upon receipt. Notices
which are mailed shall be deemed to have been given when seventy-two (72) hours
have elapsed after the notice was deposited in the United States mail,
registered or certified, the postage prepaid, addressed to the party to be
served. As of the date of execution of this
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Lease, the addresses of Landlord and Tenant are as specified in the Basic Lease
Information. Either party may change its address by giving notice of the change
in accordance with this Section.
38. Landlord's Exculpation. In the event of default, breach or
violation by Landlord (which term includes Landlord's partners, co-venturers and
co-tenants, and officers, directors, employees, agents and representatives of
Landlord and Landlords's partners, co-venturers and co-tenants) of any of
Landlord's obligations under this Lease, Landlord's liability to Tenant shall be
limited to its ownership interest in the Building and Property or the proceeds
of a public sale of the ownership interest pursuant to the foreclosure of a
judgment against Landlord. Landlord shall not be personally liable, or liable in
any event, for any deficiency beyond its ownership interest in the Building.
39. Additional Structures. Any diminution or interference with
light, air or view by any structure which may be erected on land adjacent to the
Building shall in no way alter this Lease or impose any liability on Landlord.
40. General.
(a) Captions. The captions and headings used in this
Lease are for the purpose of convenience only and shall not be construed to
limit or extend the meaning of any part of this Lease.
(b) Time. Time is of the essence for the performance of
each term, condition and covenant of this Lease.
(c) Severability. If any provision of this Lease is held
to be invalid, illegal or unenforceable, the invalidity, illegality or
unenforceability shall not affect any other provision of this Lease, but this
Lease shall be construed as if the invalid, illegal or unenforceable provision
had not been contained herein.
(d) Choice of Law; Construction. 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.
(e) Gender; Singular, Plural. 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.
(f) Binding Effect. The covenants and agreements
contained in this Lease shall be binding on the parties hereto and
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on their respective successors and assigns (to the extent this Lease is
assignable).
(g) Waiver. The waiver of Landlord of any breach of any
term, condition or covenant of this Lease shall not be deemed to be a waiver of
the provision or any subsequent breach of the same or any other term, condition
or covenant of this Lease. The subsequent acceptance of Rent hereunder by
Landlord shall not be deemed to be a waiver of any preceding breach at the time
of acceptance of the payment. No covenant, term or condition of this Lease shall
be deemed to have been waived by Landlord unless the waiver is in writing signed
by Landlord.
(h) Entire Agreement. This Lease is the entire agreement
between the parties, and there are no agreements or representations between the
parties except as expressed herein. Except as otherwise provided herein, no
subsequent change or addition to this Lease shall be binding unless in writing
and signed by the parties hereto.
(i) Quiet Enjoyment. Landlord covenants that Tenant, upon
performing the terms, conditions and covenants of this Lease, shall have quiet
possession of the Premises as against any person claiming the same by, through
or under Landlord.
(j) [Intentionally Omitted.]
(k) Counterparts. This Lease may be executed in
counterparts, each of which shall be an original, but all counterparts shall
constitute one (1) instrument.
(1) Exhibits. The Basic Lease Information and all
exhibits attached hereto are hereby incorporated herein and made
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an integral part hereof.
IN WITNESS WHEREOF, the parties have executed this Lease effective as
of the date first above written.
LANDLORD:
WHC-SIX REAL ESTATE LIMITED
PARTNERSHIP
By: JER WHC-SIX SERVICES, INC.,
General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
Name: XXXXXXXX X. XXXXXX
---------------------
Title: VICE PRESIDENT
--------------------
TENANT:
SEAGATE TECHNOLOGY, INC.,
a Delaware corporation
By: /s/ X.X. Xxxxxx
Name: X. X. XXXXXX
---------------------
Title: Sr. Vice President, Administration
----------------------------------
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EXHIBIT A
Xxxxxx Xxxxx
00,000 Xxxxxx Xxxx
Xxxxxx Xxxxx
36,600 Square Feet
00000 XXXXXXX XXXXX XXXXXXXXX
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EXHIBIT "B"
WORK LETTER
(Tenant Build-Out; Tenant Improvement Allowance)
This Exhibit is attached to and made a part of that certain Lease dated
April 18, 1995, by and between WHC-SIX REAL ESTATE LIMITED PARTNERSHIP, as
"Landlord", and SEAGATE TECHNOLOGY, INC., as "Tenant", for the Premises known as
Suite 150, 19925 Stevens Creek Boulevard, Cupertino, California.
Unless otherwise defined herein, capitalized terms used in
this Work Letter shall have the same meanings as set forth in the Lease.
(a) PLANS AND SPECIFICATIONS. Tenant shall cause the
construction of tenant improvements to the Premises ("Tenant Improvements"), all
in accordance with the provisions set forth below.
Within five (5) days after its execution of the
Lease, Tenant shall deliver to Landlord preliminary
plans ("Preliminary Plans"), to be utilized in the preparation of final working
drawings and specifications for the Tenant Improvements. Promptly (but in no
event less than five (5) business days) after its receipt of the Preliminary
Plans, Landlord shall return the same to Tenant marked and accompanied by
comments and Landlord's required revisions. Within five (5) days thereafter,
Tenant shall submit two (2) sets of revised Preliminary Plans, revised to
reflect and conform to Landlord's comments and requirements, to Landlord for its
final review and approval. Within five (5) days following Landlord's approval of
the Preliminary Plans, Tenant shall cause its architect to prepare and submit
two (2) copies of working drawings and specifications ("Working Plans") to
Landlord for its review and approval. Landlord shall advise Tenant promptly
after Landlord's receipt of the Working Plans of any required revisions. Within
five (5) days thereafter, Tenant shall submit two (2) copies of the revised
Working Plans to Landlord for its final review and approval.
Concurrently with the above review and approval
process, Tenant shall submit all plans and specifications to the City of
Cupertino ("City") and other applicable governmental agencies to obtain
governmental approvals and issuance of necessary permits and licenses to
construct the Tenant Improvements as shown on the Working Plans.
(b) CONSTRUCTION OF TENANT IMPROVEMENTS. Tenant shall
cause the construction of the Tenant Improvements to be carried out in
compliance with the Working Plans, all applicable zoning laws and regulations,
applicable covenants, conditions and restrictions, and otherwise in compliance
with the provisions of Section 10 of the Lease. Prior to the commencement of
45
construction, Tenant shall obtain course of construction and builder's "all
risk" insurance in such amounts and form as Landlord requires, liability
insurance in the form and amounts required under the Lease, and such performance
bonds in form and amounts as Landlord requires.
Tenant shall cause the construction of the Tenant
Improvements to be carried out with such materials, equipment, contractors and
subcontractors as Tenant shall select, all of which shall be approved by
Landlord. Landlord hereby approves of South Bay Construction as Tenant's general
contractor for its construction of the Tenant Improvements, subject however to
such general contractor complying with all applicable requirements of this Work
Letter. Within ten (10) days after the approval of the final Working Plans in
accordance with subparagraph (a) above or as soon as is reasonably possible
thereafter, Tenant shall submit to Landlord for its review and approval (i)
copies of all proposed construction contracts between Tenant and all contractors
and between such contractors and all subcontractors for the Tenant Improvements,
together with such background information on such contractors and subcontractors
as Landlord may require; (ii) a listing of the make, model, type, grade and all
other characteristics requested by Landlord, of all materials, equipment and
fixtures which Tenant proposes to install in or use in connection with the
Tenant Improvements; and (iii) a budget setting forth in itemized fashion the
costs of all materials, equipment, fixtures, contractors, subcontractors,
laborers, permits, fees, licenses, and all other costs and expenses Tenant
proposes to incur in connection with the construction of the Tenant
Improvements, specifically also including a development review fee to be paid to
Landlord in connection with its review, oversight and related functions under
this Work Letter in the amount of Nineteen Thousand Eight Hundred Thirty-eight
Dollars ($19,838) (hereafter collectively the "Tenant Improvements Costs"). All
such matters shall be subject to the approval of Landlord prior to the
commencement of construction of the Tenant Improvements, in Landlord's
reasonable discretion.
Tenant shall have the responsibility to obtain all
necessary construction and building permits and licenses necessary for the
construction of the Tenant Improvements. Tenant shall cause construction of the
Tenant Improvements in a good and workmanlike manner in strict accordance with
the approved Working Plans. All Tenant Improvements Costs shall be paid for by
and shall be the sole responsibility of the Tenant (other than to the extent
reimbursed by the Allowance as set forth below), including without limitation
all costs of utilities, services and insurance on the Premises arising out of
the construction of the Tenant Improvements. All construction of the Tenant
Improvements shall be performed and completed lien free, and Tenant hereby
indemnifies and agrees to defend and hold Landlord and the Premises free and
harmless from any and all claims, losses, damages, actions and causes of action
as may be incurred as a result of work performed or materials furnished in
connection with
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construction of the Tenant Improvements. Landlord shall have the right to post
notices of non-responsibility at such locations as Landlord may desire prior to
the commencement of construction of the Tenant Improvements.
(c) CHANGE ORDERS. Tenant may from time to time request
and obtain change orders during the course of construction of the Tenant
Improvements, provided that:
(i) each such request shall be reasonable and in
writing signed by or on behalf of Tenant;
(ii) each such request shall not result in any
major structural change in the Building or Tenant Improvements;
(iii) Landlord shall have the sole and absolute
right to approve or disapprove any requested change order, in Landlord's
discretion;
(iv) all costs arising out of any approved change
order, if any, shall be borne by Tenant;
(v) any resulting delay in the completion of the
Tenant Improvements arising out of such change order shall not delay or extend
the Commencement Date.
(d) ALLOWANCE. Landlord agrees to provide Tenant a tenant
improvement allowance in the amount of Seven Hundred Ninety-three Thousand Five
Hundred Twenty Dollars ($793,520) (the "Allowance") for the construction of the
Tenant Improvements. The Allowance shall be applied by Tenant against the Tenant
Improvements Costs incurred in the construction of the Tenant Improvements which
have been approved by the Landlord in Tenant's proposed budget pursuant to
subparagraph (b) above, and the provisions for disbursement set forth below. In
no event shall any portion of the Allowance be used for any purpose other than
the approved costs in the budget for the Tenant Improvements Costs. Any and all
costs in excess of the Allowance required to complete the construction of the
Tenant Improvements in accordance with subparagraph (b) above shall be the sole
and exclusive obligation and responsibility of Tenant.
On or before the fifth (5th) calendar day of every
month, Tenant shall submit to Landlord for its review
and approval AIA Form No. G702 and No. G703 invoices (or comparable invoices
acceptable to Landlord) for work performed and materials furnished to the
Premises in connection with the construction of the Tenant Improvements
("Payment Request"). Each Payment Request shall be accompanied by a
certification signed by the Tenant's general contractor and the Tenant's
architect showing that the work reflected in such Payment Request was performed
in accordance with the approved Working Plans and the terms of all approved
construction contracts; and the total costs to construct the
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Tenant Improvements, including change orders, and the amount expended for such
items to date and the estimated costs to complete the Tenant Improvements. In
addition, each Payment Request shall be accompanied by lien release waivers from
all contractors, subcontractors and materialmen to be paid through such Payment
Request and, with respect to completed work, final lien release waivers, all in
form and content acceptable to Landlord. Within ten (10) business days after
Landlord's approval of each such Payment Request, Landlord shall cause to be
disbursed to Tenant's general contractor an amount equal to ninety percent (90%)
of such approved Payment Request times the ratio which the total Allowance bears
to the total construction cost set forth in the certifications by Tenant's
general contractor and architects. Landlord shall cause to be disbursed the ten
percent (10%) retention amount, up to the limit of the Allowance, upon the
issuance of an unqualified Certificate of Occupancy for the Premises and the
expiration of the period in which liens may be filed against the Premises by any
contractor, subcontractor or materialmen furnishing goods or services thereto in
connection with the Tenant Improvements.
(e) RIGHTS OF LANDLORD. Throughout the course of
construction of the Tenant Improvements, Landlord shall have the unconditional
right to review and inspect such construction by and through its agents and
employees, including without limitation Landlord's Architect. If at any time
Landlord disapproves of the materials or workmanship of the Tenant Improvements
by Tenant, Landlord shall promptly give Tenant written notice thereof,
specifying the deficiencies or defects therein. Upon receipt of any such notice,
Tenant shall immediately commence correction of the defect or deficiency in a
manner and to a condition acceptable to Landlord. Should Tenant fail to commence
or complete any such correction as herein provided, or should Landlord deliver
to Tenant three (3) or more such notices during the course of construction of
the Tenant Improvements, Landlord shall have the immediate right to order the
discontinuance of any further construction of the Tenant Improvements by or on
behalf of Tenant, and Landlord may, but shall not be obligated to, complete the
construction of such Tenant Improvements in accordance with the Working Plans.
Should Landlord elect to complete the Tenant Improvements as herein provided,
Landlord shall be entitled to any and all funds remaining in the Allowance to
pay for the costs of completing said construction, and any additional costs
incurred in connection therewith shall be the obligation of and shall be paid by
Tenant within ten (10) days after written demand by Landlord. In addition,
Landlord shall be entitled to a construction fee for the costs of administering
and completing the Tenant Improvements in an amount equal to five percent (5%)
of all costs incurred by Landlord in completing the Tenant Improvements, which
fee shall not be part of the Allowance or the development review fee
incorporated into the Tenant Improvement Costs.
(f) COST OF DEMISING WALL. The parties acknowledge that the Tenant
Improvements will include the construction of a
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demising wall separating that portion of the Premises located on the second
floor of the Building from the balance of the second floor of the Building.
Notwithstanding anything contained in this Exhibit to the contrary, Landlord
shall reimburse Tenant for one-half (1/2) of the construction cost paid by
Tenant with respect to the construction of such demising wall, which
reimbursement shall be made by Landlord to Tenant concurrently with Landlord's
disbursement to Tenant of the ten percent (10%) retention described in Section
(d) above. The term "Tenant Improvement Costs" as used in this Exhibit shall not
include the amount to be reimbursed by Landlord to Tenant pursuant to this
Section (d).
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EXHIBIT "C"
ACKNOWLEDGMENT OF COMMENCEMENT
This Acknowledgement is made as of ____________, 19___ with reference
to that certain Lease Agreement (hereinafter referred to as the "Lease") dated
_______________, 19___ by and between __________________________________ as
"Landlord" therein, and __________________________________ as "Tenant" therein,
for the demised premises situated at _________________________________________.
The undersigned hereby confirms the following:
1. That the Tenant accepted possession of the Premises (as described in
said Lease) on ________________, 19___, and acknowledges that the Premises are
as represented by the Landlord and in good order, condition and repair, and that
the Tenant Improvements (as defined in the Lease) have been substantially
completed by Tenant in accordance with the terms and conditions of the Lease.
2. That all conditions of said Lease to be performed by Landlord
prerequisite to the full effectiveness of said Lease have been satisfied and
that Landlord has fulfilled all of its duties of an inducement nature.
3. That in accordance with the provisions of said Lease the
commencement date of the term is _______________________, 19___, and that,
unless sooner terminated, the original term thereof expires on
_____________________, 19___.
4. That said Lease is in full force and effect and that the same
represents the entire agreement between Landlord and Tenant concerning said
Lease.
5. That there are no existing defenses which Tenant has against the
enforcement of said Lease by Landlord and no offsets or credits against rentals.
6. That the minimum rental obligation of said Lease is presently in
effect and that all rentals, charges and other obligations on the part of Tenant
under said Lease commenced to accrue on ___________________, 19___.
7. That the undersigned has not made any prior assignment,
hypothecation or pledge of said Lease or of the rents hereunder.
LANDLORD: TENANT:
By: _______________________ By:_________________________
By: _______________________ By: ________________________
Date: ______________________ Date: _______________________
50
EXHIBIT "D"
UTILITIES AND SERVICES
The standards set forth below for Utilities and Services are in effect.
Landlord reserves the right to adopt nondiscriminatory modifications and
additions hereto, which do not materially affect Tenant's rights. Landlord shall
give notice to Tenant, in accordance with provisions of this Lease, of material
modification and additions.
1. Provision By Landlord. As long as Tenant is not in default
under any of the terms of this Lease, Landlord shall:
(a) Ventilation. Ventilate the Premises and furnish
air-conditioning or heating Monday through Friday, except holidays, from 8:00
a.m. to 6:00 p.m. (and at other times for the additional charges described in
Paragraph 2) to the extent required for the comfortable occupancy of the
Premises, subject to governmental regulation. The air-conditioning system
achieves maximum cooling when the window coverings and sliding glass doors are
closed. Landlord shall not be responsible for room temperatures if Tenant does
not keep all sliding glass doors in the Premises closed whenever the system is
in operation. Tenant shall cooperate to the best of its ability at all times
with Landlord and shall abide by all reasonable regulations and requirements
which Landlord may prescribe for the proper functioning and protection of the
air-conditioning system. Tenant shall not connect any apparatus, device, conduit
or pipe to the Building's chilled and hot water air-conditioning supply lines.
Tenant and Tenant's servants, employees, agents, visitors, licensees or
contractors shall not enter at any time the mechanical installations or
facilities of the Building, or adjust, tamper with, touch or otherwise in any
manner affect the installations or facilities. If any installation of
partitions, equipment or fixtures by Tenant necessitates the re-balancing of the
climate control equipment in the Premises, the re-balancing shall be performed
by Landlord at Tenant's expense.
(b) Electricity. Subject to the provisions of Paragraph
2, furnish to the Premises electric current as required by the Building standard
office lighting and fractional horsepower office business machines in the amount
of approximately two and one-half (2.5) xxxxx per square foot. If Tenant's
electrical installation or electrical consumption is in excess of the quantity
described above, or extends beyond normal business hours, Tenant shall reimburse
Landlord monthly for the measured consumption. Tenant shall not connect any
apparatus or device with wires, conduits or pipes, or other means by which the
services are supplied, for the purpose of using additional or unusual amounts of
the services without the prior written consent
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of Landlord. At all times Tenant's use of electric current shall not exceed the
capacity of the feeders to the Building or the risers or wiring installation,
except as provided in working drawings approved by Landlord.
(c) Water. Make water available in public areas for
drinking and lavatory purposes only.
(d) Janitorial Service. Provide building standard
janitorial service to the Premises, provided the Premises are used exclusively
as offices, and are kept reasonably in order by Tenant. Tenant shall pay to
Landlord any cost incurred by Landlord for janitorial services in excess of
those generally provided for other tenants in the Building. Tenant shall pay to
Landlord the cost of removal of any of Tenant's refuse and rubbish.
2. Additional Charges. Landlord may impose a reasonable charge
for any utilities and services including air-conditioning, electric current,
water and janitorial service, required to be provided by Landlord by reason of
(i) any use of the Premises at any time other than between the hours of 8:00
a.m. and 6:00 p.m. Monday through Friday, except holidays; (ii) any use beyond
what Landlord agrees to furnish as described above; or (iii) special electrical,
cooling and ventilating needs created in certain areas by hybrid telephone
equipment, computers and other similar equipment or uses.
3. Rules and Regulations. Tenant agrees to cooperate at all times
with Landlord and to abide by all reasonable regulations and requirements which
Landlord may prescribe for the use of the utilities and services. Any failure to
pay any excess costs as described above with the next installment of Rent due
after receipt of a statement for such services shall constitute a breach of the
obligation to pay Rent under this Lease and shall entitle Landlord to the rights
granted in this Lease for a breach.
4. Stopping of Service. Landlord reserves the right to stop
services of the elevator, plumbing, ventilation, air-conditioning and electric
systems when necessary by reason of accident or emergency, or for repairs,
alterations or improvements, in the judgment of Landlord desirable or necessary
to be made, until the repairs, alterations or improvements have been completed.
Landlord shall have no responsibility or liability for failure to supply
elevator facilities, plumbing, ventilating, air-conditioning or electric service
when prevented by strike or accident or by any cause beyond Landlord's
reasonable control, or by laws, rules, orders, ordinances, directions,
regulations or requirements of any federal, state, county or municipal authority
or failure of gas, oil or other suitable fuel supply or inability by exercise of
reasonable
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diligence to obtain gas, oil or other suitable fuel. It is expressly understood
and agreed that any covenants on Landlord's part to furnish any service pursuant
to any of the terms, covenants, conditions, provisions or agreements of this
Lease, or to perform any act or thing for the benefit of Tenant, shall not be
deemed breached if Landlord is unable to furnish or perform the same by virtue
of a strike or labor trouble or any other cause whatsoever beyond Landlord's
reasonable control.
5. Notice. To the extent practical, Landlord shall attempt to
give Tenant notice of proposed shutdowns of services.
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EXHIBIT "E"
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be
installed or displayed on any part of the outside or inside of the Building
without the prior written consent of Landlord. Landlord shall have the right to
remove, at Tenant's expense and without notice, any sign installed or displayed
in violation of this rule. All approved signs or lettering on doors and walls
shall be printed, painted, affixed or inscribed at the expense of Tenant by a
person chosen by Landlord.
2. The directory of the Building will be provided exclusively for the
display of the name and location of tenants, and Landlord reserves the right to
exclude any other names therefrom. Landlord shall pay the cost of Tenant's
initial listing in the Building Directory, and Tenant shall pay the cost of any
changes by Tenant.
3. Except as consented to in writing by Landlord or in accordance with
Building standard improvements, no draperies, curtains, blinds, shades, screens
or other devices shall be hung at or used in connection with any window or
exterior door or doors of the Premises. No awning shall be permitted on any part
of the Premises. Tenant shall not place anything against or near glass
partitions or doors or windows which may appear unsightly from outside the
Premises.
4. Tenant shall not obstruct any sidewalks, halls, lobbies, passages,
exits, entrances, elevators or stairways of the Building. No tenant and no
employee or invitee of any tenant shall go upon the roof of the Building or make
any roof or terrace penetrations. Tenant shall not allow anything to be placed
on the outside terraces or balconies without the prior written consent of
Landlord.
5. All cleaning and janitorial services for the Building shall be
provided exclusively through Landlord, and, except with the written consent of
Landlord, no person or persons other than those approved by Landlord shall be
employed by Tenant or permitted to enter the Building for the purpose of
cleaning. Tenant shall not cause any unnecessary labor by carelessness or
indifference to the good order and cleanliness of the Premises. Landlord shall
not in any way be responsible to any Tenant for any loss of property on the
Premises, however occurring, or for any damage to any Tenant's property by the
janitor or any other employee or person.
6. Landlord will furnish Tenant, free of charge, with two keys to
Tenant's suite entrance. Landlord may make a reasonable
1
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charge for any additional keys and for having any locks changed. Tenant shall
not make or have made additional keys without Landlord's prior written consent,
and Tenant shall not alter any lock or install a new additional lock or bolt on
any door of its Premises without Landlord's prior written consent. Tenant shall
deliver to Landlord, upon the termination of its tenancy, the keys to all locks
for doors on the Premises, and in the event of loss of any keys furnished by
Landlord, shall pay Landlord therefor.
7. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions for
their installation.
8. The elevators shall be available for use by all tenants in the
Building, subject to reasonable scheduling as Landlord in its discretion shall
deem appropriate. No equipment, materials, furniture, packages, supplies,
merchandise or other property will be received in the Building or carried in the
elevators except between the hours, in the manner and in the elevators as may be
designated by Landlord.
9. Tenant shall not place a load upon any floor of the Premises which
exceeds the maximum load per square foot which the floor was designed to carry
and which is allowed by law. Tenant's business machines and mechanical equipment
which cause noise or vibration which may be transmitted to the structure of the
Building or to any space therein, and which is objectionable to Landlord or to
any tenants in the Building, shall be placed and maintained by Tenant, at
Tenant's expense, on vibration eliminators or other devices sufficient to
eliminate noise or vibration.
10. Tenant shall not use or keep in the Premises any toxic or hazardous
materials or any kerosene, gasoline or inflammable or combustible fluid or
material other than those limited quantities necessary for the operation or
maintenance of office equipment. Tenant shall not use or permit to be used in
the Premises any foul or noxious gas or substance, or permit or allow the
Premises to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors or
vibrations. No animal, except seeing eye dogs when in the company of their
masters, may be brought into or kept in the Building.
11. Tenant shall not use any method of heating or air-conditioning
other than that supplied by Landlord, unless Tenant receives the prior written
consent of Landlord.
12. Tenant shall cooperate fully with Landlord to assure the most
effective operation of the Building's heating and air-conditioning and to comply
with any governmental energy-saving
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rules, laws or regulations of which Tenant has actual notice. Tenant shall
refrain from attempting to adjust controls other than room thermostats installed
for Tenant's use. Tenant shall keep corridor doors and sliding glass doors
closed, and shall close window coverings at the end of each business day.
13. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
14. Landlord reserves the right to exclude any person from the Building
between the hours of 6:00 p.m. and 8:00 a.m., the following day, or any other
hours as may be established from time to time by Landlord, and on Saturdays,
Sundays and legal holidays, unless that person is known to the person or
employee in charge of the Building and has a pass or is properly identified.
Tenant shall be responsible for all persons for whom it requests passes and
shall be liable to Landlord for all acts of those persons. Landlord shall not be
liable for damages for any error in admitting or excluding any person from the
Tenant's Building. Landlord reserves the right to prevent access to the Building
by closing the doors or by other appropriate action in case of invasion, mob,
riot, public excitement or other commotion.
15. Tenant shall close and lock the doors of its Premises, shut off all
water faucets or other water apparatus and turn off all lights and other
equipment which is not required to be continuously run. Tenant shall be
responsible for any damage or injuries sustained by other tenants or occupants
of the Building or Landlord for noncompliance with this Rule.
16. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed, and no foreign substance of any kind whatsoever shall be placed
therein. The expense of any breakage, stoppage or damage resulting from any
violation of this rule shall be borne by the tenant who, or whose employees or
invitees, shall have caused it.
17. Tenant shall not install any radio or television antenna,
loudspeaker or other device on the roof or exterior walls of the Building.
Tenant shall not interfere with radio or television broadcasting or reception
from or in the Building or elsewhere.
18. Tenant shall not cut or bore holes for wires in the partitions,
woodwork or plaster of the Premises. Tenant shall not affix any floor covering
to the floor of the Premises in any manner except as approved by Landlord.
Tenant shall repair, or be responsible for the cost of repair of, any damage
resulting from noncompliance with this Rule.
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19. Tenant shall not install, maintain or operate upon the Premises any
vending machine without the prior written consent of Landlord.
20. Canvassing, soliciting and distributing handbills or any other
written material and peddling in the Building are prohibited, and each tenant
shall cooperate to prevent these activities.
21. Landlord reserves the right to exclude or expel from the Building
any person who, in Landlord's judgement, is intoxicated or under the influence
of liquor or drugs, or who is in violation of any of the Rules and Regulations
of the Building.
22. Tenant shall store all its trash and garbage within its Premises.
Tenant shall not place in any trash box or receptacle any material which cannot
be disposed of in the ordinary and customary manner of trash and garbage
disposal within the Building. All garbage and refuse disposal shall be made in
accordance with directions issued from time to time by Landlord.
23. Use by Tenant of Underwriters' Laboratory approved equipment for
brewing coffee, tea, hot chocolate and similar beverages and microwaving food
shall be permitted, provided that the equipment and use is in accordance with
all applicable federal, state, county and city laws, codes, ordinances, rules
and regulations.
24. Tenant shall not use the name of the Building in connection with or
in promoting or advertising the business of Tenant, except as Tenant's address,
without the written consent of Landlord.
25. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
Tenant shall be responsible for any increased insurance premiums attributable to
Tenant's use of the Premises, Building or Property.
26. Tenant assumes any and all responsibility for protecting its
Premises from theft and robbery, which responsibility includes keeping doors
locked and other means of entry to the Premises closed.
27. Tenant shall not use the Premises, or suffer or permit anything to
be done on, in or about the Premises, which may result in an increase to
Landlord in the cost of insurance maintained by Landlord on the Building and
Common Areas.
28. Tenant's requests for assistance will be attended
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57
to only upon appropriate application to the office of the Building by an
authorized individual. Employees of Landlord shall not perform any work or do
anything outside of their regular duties unless under special instructions from
Landlord, and no employee of Landlord will admit any person (Tenant or
otherwise) to any office without specific instructions from Landlord.
29. Tenant shall not park its vehicles in any parking areas designated
by Landlord as areas for parking by visitors to the Building or in parking
spaces reserved for others. Tenant shall not leave vehicles in the Building
parking areas overnight, nor park any vehicles in the Building parking areas
other than automobiles, motorcycles, motor driven or non-motor driven bicycles
or four- wheeled trucks. Tenant, its agents, employees and invitees shall not
park any one (1) vehicle in more than one (1) parking space.
30. The scheduling and manner of all Tenant move-ins and move-outs
shall be subject to the discretion and approval of Landlord, and move-ins and
move-outs shall take place only after 6:00 p.m. on weekdays, on weekends, or at
other times as Landlord may designate. Landlord shall have the right to approve
or disapprove the movers or moving company employed by Tenant, and Tenant shall
cause the movers to use only the entry doors and elevators designated by
Landlord. If Tenant's movers damage the elevator or any other part of the
Property, Tenant shall pay to Landlord the amount required to repair the damage.
31. Landlord may waive any one or more of these Rules and Regulations
for the benefit of Tenant or any other tenant, but no waiver by Landlord shall
be construed as a waiver of the Rules and Regulations in favor of Tenant or any
other tenant, nor prevent Landlord from thereafter enforcing the Rules and
Regulations against any or all of the tenants of the Building.
32. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of the premises in the
Building.
33. Landlord reserves the right to make other reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for safety and
security, for care and cleanliness of the Building and for the preservation of
good order therein. Tenant agrees to abide by all Rules and Regulations
hereinabove stated and any additional rules and regulations which are adopted.
34. Tenant shall be responsible for the observance of all of the
foregoing rules by Tenant's employees, agents, clients, customers, invitees and
guests.
5
58
EXHIBIT "F"
ENVIRONMENTAL QUESTIONNAIRE AND DISCLOSURE STATEMENT
The purpose of this form is to obtain information regarding the use of
hazardous substances on the premises. Prospective tenants should answer the
questions in light of their proposed operations on the premises. Existing
tenants should answer the questions as they relate to on-going operations on the
premises and should update any information previously submitted. If additional
space is needed to answer the questions, you may attach separate sheets of paper
to this form.
Your cooperation in this matter is appreciated. Any questions should be
directed to, and when completed, the form should be mailed to:
X'Xxxxxxx property Services, Inc.
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx
Phone: (000)000-0000
1. GENERAL INFORMATION
Name of Responding Company:
-------------------------------------------
Check the Applicable Status:
Prospective Tenant [ ] Existing Tenant [ ]
Mailing Address:
------------------------------------------------------
-----------------------------------------------------------------------
Contact Person and Title:
---------------------------------------------
Telephone Number: ( ) -
----- ----------
Address of Leased Premises:
-------------------------------------------
Length of Lease Term:
-------------------------------------------------
Describe the proposed operations to take place on the property,
including principal products manufactured or services to be conducted.
Existing tenants should describe any proposed changes to on-going
operations.
-----------------------------------------------------------------------
-----------------------------------------------------------------------
2. STORAGE OF HAZARDOUS MATERIALS
2.1 Will any hazardous materials be used or stored on-site?
Wastes Yes [ ] No [ ]
59
Chemical Products Yes [ ] No [ ]
2.2 Attach the list of any hazardous materials to be used or
stored, the quantities that will be on-site at any given time,
and the location and method of storage (e.g., 55 gallon drums
on concrete pad).
3. STORAGE TANKS & SUMPS
3.1 Is any above or below ground storage of gasoline, diesel, or
other hazardous substances in tanks or sumps proposed or
currently conducted on the premises?
Yes [ ] No [ ]
If yes, describe the materials to be stored, and the type,
size and construction of the sump or tank. Attach copies of
any permits obtained for the storage of such substances.
--------------------------------------------------------------
--------------------------------------------------------------
3.2 Have any of the tanks or sumps been inspected or tested for
leakage?
Yes [ ] No [ ]
If so, attach the results.
3.3 Have any spills or leaks occurred from such tanks or sumps?
Yes [ ] No [ ]
If so, describe.
--------------------------------------------------------------
--------------------------------------------------------------
3.4 Were any regulatory agencies notified of the spill or leak?
Yes [ ] No [ ]
If so, attach copies of any spill reports filed, any clearance
letters or other correspondence from regulatory agencies
relating to the spill or leak.
3.5 Have any underground storage tanks or sumps been taken out of
service or removed?
Yes [ ] No [ ]
If yes, attach copies of any closure permits and clearance
obtained from regulatory agencies relating to closure and
removal of such tanks.
60
4. SPILLS
4.1 During the past year, have any spills occurred on the
premises?
Yes [ ] No [X] N/A
If so, please describe the spill and attach the results of any
testing conducted to determine the extent of such spills.
4.2 Were any agencies notified in connection with such spills?
Yes [ ] No [ ]
If so, attach copies of any spill reports or other
correspondence with regulatory agencies.
4.3 Were any clean-up actions undertaken in connection with the
spills?
Yes [ ] No [X] N/A
If so, briefly describe the actions taken. Attach copies of
any clearance letters obtained from any regulatory agencies
involved and the results of any final soil or groundwater
sampling done upon completion of the clean-up work.
--------------------------------------------------------------
--------------------------------------------------------------
5. WASTE MANAGEMENT
5.1 Has your company been issued an EPA Hazardous Waste Generator
I.D. Number?
Yes [ ] No [X] N/A
5.2 Has your company filed a biennial report as a hazardous waste
generator?
Yes [ ] No [X] N/A
If so, attach a copy of the most recent report filed.
5.3 Attach the list of the hazardous waste, if any, generated or
to be generated at the premises, its hazard class and the
quantity generated on a monthly basis.
5.4 Describe the method(s) of disposal for each waste. Indicate
where and how often disposal will take place.
N/A
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
5.5 Indicate the name of the person(s) responsible for maintaining
copies of hazardous waste manifests completed for off-site
shipments of hazardous waste.
N/A
--------------------------------------------------------------
5.6 Is any treatment or processing of hazardous wastes currently
conducted or proposed to be conducted at the premises:
Yes [ ] No [X]
61
If yes, please describe any existing or proposed treatment
methods. ______________________
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
5.7 Attach copies of any hazardous waste permits or licenses
issued to your company with respect to its operations on the
premises.
6. WASTEWATER TREATMENT/DISCHARGE
6.1 Do you discharge wastewater to:
_____storm drain? _____sewer?
_____surface water? _____no Industrial discharge
6.2 Is your wastewater treated before discharge?
Yes [ ] No [ ] N/A No NW dischage
If yes, describe the type of treatment conducted.
--------------------------------------------------------------
6.3 Attach copies of any wastewater discharge permits issued to
your company with respect to its operations on the premises.
7. AIR DISCHARGES
7.1 Do you have any air filtration systems or stacks that
discharge into the air?
Yes [ ] No [X]
2
62
7.2 Do you operate any of the following types of equipment, or any
other equipment requiring an air emissions permit?
_____ Spray booth
_____ Dip tank
_____ Drying oven
_____ Incinerator
_____ Other (Please Describe)
_____ No Equipment Requiring Air Permits
7.3 Are air emissions from your operations monitored?
Yes [ ] No [X] Not Needed
If so, Indicate the frequency of monitoring and a description
of the monitoring results.
--------------------------------------------------------------
7.4 Attach copies of any air emissions permits pertaining to your
operations on the premises.
8. HAZARDOUS MATERIALS DISCLOSURES
8.1 Does your company handle hazardous materials in a quantity
equal to or exceeding an aggregate of 500 pounds, 55 gallons,
or 200 cubic feet?
Yes [X] No [ ]
8.2 Has your company prepared a hazardous materials management
plan ("business plan") pursuant to Orange County Fire
Department requirements?
Yes [ ] No [ ] N/A
If so, attach a copy of the business plan.
8.3 Are any of the chemicals used in your operations regulated
under Proposition 65?
Yes [ ] No [ ] N/A
If so, describe the action taken, or proposed actions to be
taken, to comply with Proposition 65 requirements.
--------------------------------------------------------------
8.4 Describe the procedures followed to comply with OSHA Hazard
Communication Standard requirements.
New employee training.
--------------------------------------------------------------
9. ENFORCEMENT ACTIONS, COMPLAINTS
9.1 Has your company ever been subject to any agency enforcement
actions, administrative orders, or consent decrees?
Yes [X] No [ ]
63
If so, describe the actions and any continuing compliance
obligations imposed as a result of these actions.
RCRA Corrective Action in Omaha, NE
--------------------------------------------------------------
9.2 Has your company ever received requests for information,
notice or demand letters, or any other Inquiries regarding its
operations?
Yes [ ] No [X]
9.3 Have there ever been, or are there now pending, any lawsuits
against the company regarding any environmental or health and
safety concerns?
Yes [ ] No [X]
9.4 Has an environmental audit ever been conducted at your
company's current facility?
Yes [ ] No [X] N/A
If so, discuss the results of the audit.
--------------------------------------------------------------
9.5 Have there been any problems or complaints from neighbors at
the company's current facility?
Yes [ ] No [ ] N/A
Seagate Technology, Inc.
-----------------------------------------------------------------------
Company
By: Xxxxxxxx X. Xxxxx
-------------------------------------------------------------------
Title: Corp. Environ. Mgr.
-----------------------------------------------
Date: 4/11/95
---------------------------------------
3
64
EXHIBIT "F"
ENVIRONMENTAL QUESTIONNAIRE AND DISCLOSURE STATEMENT
The purpose of this form is to obtain information regarding the use of
hazardous substances on the premises. Prospective tenants should answer the
questions in light of their proposed operations on the premises. Existing
tenants should answer the questions as they relate to on-going operations on the
premises and should update any information previously submitted. If additional
space is needed to answer the questions, you may attach separate sheets of paper
to this form.
Your cooperation in this matter is appreciated. Any questions should be
directed to, and when completed, the form should be mailed to:
X'Xxxxxxx property Services, Inc.
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx
Phone:(000) 000-0000
1. GENERAL INFORMATION
Name of Responding Company: Seagate Technology, Inc.
Check the Applicable Status:
Prospective Tenant [X] Existing Tenant [ ]
Mailing Address: 000 Xxxx Xxxxx, Xxxxxx Xxxxxx
Xxx 00000 XX. 00000-0000
Contact Person and Title: XXXXX XXXXXX
Telephone Number: (000) 000-0000
Address of Leased Premises: 15019925 Stevens Creek San Jose, Ca.
Length of Lease Term:
-------------------------------------------------
Describe the proposed operations to take place on the property,
including principal products manufactured or services to be conducted.
Existing tenants should describe any proposed changes to on-going
operations.
Software Design
-----------------------------------------------------------------------
65
2. STORAGE OF HAZARDOUS MATERIALS
2.1 Will any hazardous materials be used or stored on-site?
Wastes Yes [ ] No [X]
Chemical Products Yes [ ] No [X]
2.2 Attach the list of any hazardous materials to be used or
stored, the quantities that will be on-site at any given time,
and the location and method of storage (e.g., 55 gallon drums
on concrete pad).
3. STORAGE TANKS & SUMPS
3.1 Is any above or below ground storage of gasoline, diesel, or
other hazardous substances in tanks or sumps proposed or
currently conducted on the premises?
Yes [ ] No [X] None Proposed; Existing unknown.
If yes, describe the materials to be stored, and the type,
size and construction of the sump or tank. Attach copies of
any permits obtained for the storage of such substances.
--------------------------------------------------------------
--------------------------------------------------------------
3.2 Have any of the tanks or sumps been inspected or tested for
leakage?
Yes [ ] No [ ] N/A
If so, attach the results.
3.3 Have any spills or leaks occurred from such tanks or sumps?
Yes [ ] No [ ] N/A
If so, describe.
--------------------------------------------------------------
--------------------------------------------------------------
3.4 Were any regulatory agencies notified of the spill or leak?
Yes [ ] No [ ] N/A
If so, attach copies of any spill reports filed, any clearance
letters or other correspondence from regulatory agencies
relating to the spill or leak.
3.5 Have any underground storage tanks or sumps been taken out of
service or removed?
Yes [ ] No [ ] Unknown
If yes, attach copies of any closure permits and clearance
obtained from regulatory agencies relating to closure and
removal of such tanks.
66
4. SPILLS
4.1 During the past year, have any spills occurred on the
premises?
Yes [ ] No [X] N/A
If so, please describe the spill and attach the results of any
testing conducted to determine the extent of such spills.
4.2 Were any agencies notified in connection with such spills?
Yes [ ] No [ ] N/A
If so, attach copies of any spill reports or other
correspondence with regulatory agencies.
4.3 Were any clean-up actions undertaken in connection with the
spills?
Yes [ ] No [X] N/A
If so, briefly describe the actions taken. Attach copies of
any clearance letters obtained from any regulatory agencies
involved and the results of any final soil or groundwater
sampling done upon completion of the clean-up work.
--------------------------------------------------------------
--------------------------------------------------------------
5. WASTE MANAGEMENT
5.1 Has your company been issued an EPA Hazardous Waste Generator
I.D. Number?
Yes [ ] No [X] N/A
5.2 Has your company filed a biennial report as a hazardous waste
generator?
Yes [ ] No [X] N/A
If so, attach a copy of the most recent report filed.
5.3 Attach the list of the hazardous waste, if any, generated or
to be generated at the premises, its hazard class and the
quantity generated on a monthly basis.
5.4 Describe the method(s) of disposal for each waste. Indicate
where and how often disposal will take place.
N/A
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
5.5 Indicate the name of the person(s) responsible for maintaining
copies of hazardous waste manifests completed for off-site
shipments of hazardous waste.
N/A
--------------------------------------------------------------
5.6 Is any treatment or processing of hazardous wastes currently
conducted or proposed to be conducted at the premises:
Yes [ ] No [X]
67
If yes, please describe any existing or proposed treatment
methods. _____________________
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
5.7 Attach copies of any hazardous waste permits or licenses
issued to your company with respect to its operations on the
premises.
6. WASTEWATER TREATMENT/DISCHARGE
6.1 Do you discharge wastewater to:
_____ storm drain? _____ sewer?
_____ surface water? _____ no industrial discharge
6.2 Is your wastewater treated before discharge?
Yes [ ] No [ ] N/A No WW discharge
If yes, describe the type of treatment conducted.
--------------------------------------------------------------
6.3 Attach copies of any wastewater discharge permits issued to
your company with respect to its operations on the premises.
7. AIR DISCHARGES
7.1 Do you have any air filtration systems or stacks that
discharge into the air?
Yes [ ] No [X]
2
68
7.2 Do you operate any of the following types of equipment, or any
other equipment requiring an air emissions permit?
_____ Spray booth
_____ Dip tank
_____ Drying oven
_____ Incinerator
_____ Other (Please Describe)
X No Equipment Requiring Air Permits
7.3 Are air emissions from your operations monitored?
Yes [ ] No [X] Not needed
If so, indicate the frequency of monitoring and a description
of the monitoring results.
--------------------------------------------------------------
7.4 Attach copies of any air emissions permits pertaining to your
operations on the premises.
8. HAZARDOUS MATERIALS DISCLOSURES
8.1 Does your company handle hazardous materials in a quantity
equal to or exceeding an aggregate of 500 pounds, 55 gallons,
or 200 cubic feet?
Yes [X] No [ ]
8.2 Has your company prepared a hazardous materials management
plan ("business plan") pursuant to Orange County Fire
Department requirements?
Yes [ ] No [ ] N/A
If so, attach a copy of the business plan.
8.3 Are any of the chemicals used in your operations regulated
under Proposition 65?
Yes [ ] No [ ] N/A
If so, describe the actions taken, or proposed actions to be
taken, to comply with Proposition 65 requirements.
--------------------------------------------------------------
8.4 Describe the procedures followed to comply with OSHA Hazard
Communication Standard requirements.
New employee training.
9. ENFORCEMENT ACTIONS, COMPLAINTS
9.1 Has your company ever been subject to any agency enforcement
actions, administrative orders, or consent decrees?
Yes [X] No [ ]
69
If so, describe the actions and any continuing compliance
obligations imposed as a result of these actions.
RCRA Corrective Action in Omaha, NE
9.2 Has your company ever received requests for information,
notice or demand letters, or any other inquiries regarding its
operations?
Yes [ ] No [X]
9.3 Have there ever been, or are there now pending, any lawsuits
against the company regarding any environmental or health and
safety concerns?
Yes [ ] No [X]
9.4 Has an environmental audit ever been conducted at your
company's current facility?
Yes [ ] No [X] N/A
If so, discuss the results of the audit.
--------------------------------------------------------------
9.5 Have there been any problems or complaints from neighbors at
the company's current facility?
Yes [ ] No [ ] N/A
Seagate Technology, Inc.
Company
By: Xxxxxxxx X. Xxxxx
Title: Corp. Environ. Mgr.
Date: 4/11/95
3
70
EXHIBIT "G"
OPTIONS TO EXTEND TERM/RIGHT OF FIRST REFUSAL
This Exhibit is attached to and made a part of that certain Lease dated
April 18, 1995, by and between WHC-SIX REAL ESTATE LIMITED PARTNERSHIP, as
"Landlord", and SEAGATE TECHNOLOGY, INC., as "Tenant", for the Premises known as
00000 Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx. The capitalized
terms used and not otherwise defined herein shall have the same definitions as
set forth in the Lease. The provisions of this Exhibit shall supersede any
inconsistent or conflicting provisions of the Lease.
1. Options to Extend Term.
1.1 Grant of Options. Landlord hereby grants to Tenant
two (2) options (individually referred to hereinafter as the "Option" and
collectively referred to hereinafter as the "Options") to extend the Term of the
Lease for additional consecutive terms of three (3) years each (each is called
an "Extension"), on the same terms and conditions as set forth in the Lease,
except that the Base Rent shall be the amount determined as set forth below.
Each Option shall be exercised only by written notice delivered to Landlord at
least one hundred eighty (180) days before the expiration of the initial Term of
the Lease or the immediately preceding Extension, as the case may be. If Tenant
fails to deliver to Landlord written notice of the exercise of the Option within
the time period prescribed above, such Option and any succeeding Option shall
lapse and there shall be no further right to extend the Term of the Lease. Each
Option shall be exercisable by Tenant on the express conditions that (i) at the
time of the exercise of such Option, and thereafter at all times prior to the
commencement of the Extension, an Event of Default shall not have occurred and
be continuing under the Lease, and (ii) Tenant has not been ten (10) or more
days late in the payment of Rent more than a total of three (3) times during the
Term of the Lease. If Tenant properly exercises an Option, "Term", as used
herein and in the Lease, shall be deemed to include the applicable Extension,
unless specified otherwise herein or in the Lease.
1.2 Personal Options. Each Option is personal to Seagate
Technology, Inc. and shall not be assignable or transferable to any assignee of
Tenant (other than an assignee in which Seagate Technology, Inc. holds an
ownership interest of fifty-one percent (51%) or more ("Permitted Assignee")) or
any sublessee of all or any portion of the Premises. If Tenant subleases or
assigns or otherwise transfers any interest under the
1
71
Lease (other than an assignment to a Permitted Assignee) prior to the exercise
of an Option, such Option and any succeeding Option shall lapse. If Tenant
subleases or assigns or otherwise transfers any interest of Tenant under the
Lease (other than an assignment to a Permitted Assignee) after the exercise of
an Option but prior to the commencement of the applicable Extension, such Option
and any succeeding Option shall lapse and the Term of the Lease shall expire as
if such Option was not exercised.
1.3 Calculation of Base Rent. The Base Rent during each
Extension shall be increased, as of the commencement of each Extension (each is
called a "Rental Adjustment Date") to ninety-five percent (95%) of the "Fair
Market Value" of the Premises, determined in the following manner: Not later
than one hundred (100) days prior to any applicable Rental Adjustment Date,
Landlord and Tenant shall meet in an effort to negotiate, in good faith, the
Fair Market Value of the Premises as of such Rental Adjustment Date. If Landlord
and Tenant have not agreed upon the Fair Market Value of the Premises at least
ninety (90) days prior to the applicable Rental Adjustment Date, the Fair Market
Value shall be determined by the following appraisal method:
(i) If Landlord and Tenant are not able to agree upon
the Fair Market Value of the Premises within the time period described
above, then Landlord and Tenant shall attempt to agree in good faith
upon a single appraiser not later than seventy-five (75) days prior to
the applicable Rental Adjustment Date. If Landlord and Tenant are
unable to agree upon a single appraiser within such time period, then
Landlord and Tenant shall each appoint one appraiser not later than
sixty-five (65) days prior to the applicable Rental Adjustment Date,
and Landlord and Tenant shall each give written notice to the other of
such appointment at the time of such appointment. Within ten (10) days
thereafter, the two appointed appraisers shall appoint a third
appraiser. If either Landlord or Tenant fails to appoint its appraiser
and to give written notice thereof to the other party within the
prescribed time period, the single appraiser appointed shall determine
the Fair Market Value of the Premises. If both parties fail to appoint
appraisers within the prescribed time periods, then the first appraiser
thereafter selected by a party (such selection to be by written notice
thereof to such appraiser and the other party) shall determine the Fair
Market Value of the Premises. Each party shall bear the cost of its own
appraiser and the parties shall share equally the cost of the single or
third appraiser if applicable. All appraisers shall have at least five
(5) years' experience in the appraisal of commercial/industrial real
property in the area in which the Premises are located and shall be
members of professional organizations such as MAI or its equivalent.
2
72
(ii) For the purposes of such appraisal, the term
"Fair Market Value" shall mean the price that a ready and willing
tenant would pay, as of the Rental Adjustment Date, as monthly rent, to
a ready and willing landlord of property comparable to the Premises if
such property were exposed for lease on the open market for a
reasonable period of time and taking into account all of the purposes
for which such property may be used. If a single appraiser is chosen,
then such appraiser shall determine the Fair Market Value of the
Premises. Otherwise, the Fair Market Value of the Premises shall be the
arithmetic average of the two (2) of the three (3) appraisals which are
closest in amount, and the third appraisal shall be disregarded.
Landlord and Tenant shall instruct the appraiser(s) to complete their
determination of the Fair Market Value not later than thirty (30) days
prior to the applicable Rental Adjustment Date. If the Fair Market
Value is not determined prior to the applicable Rental Adjustment Date,
then Tenant shall continue to pay to Landlord the Base Rent applicable
to the Premises immediately prior to such Rental Adjustment Date until
the Fair Market Value is determined. When the Fair Market Value of the
Premises is determined, Landlord shall deliver notice thereof to
Tenant, and Tenant shall pay to Landlord, within ten (10) days after
receipt of such notice, the difference between the Base Rent actually
paid by Tenant to Landlord for the period after the Rental Adjustment
Date and the new Base Rent determined hereunder effective as of the
Rental Adjustment Date. In no event shall Base Rent be reduced below
the Base Rent applicable to the Premises immediately prior to the
applicable Rental Adjustment Date.
2. Right of First Refusal. If, during the Term, Landlord receives
a bona fide offer in writing ("Offer") from a third party to lease all or part
of the balance of the second floor of the Building (which balance is referred to
herein as the "Refusal Space"), and Landlord desires to lease that portion of
the Refusal Space that is the subject of such Offer ("Offer Space") upon the
terms and conditions set forth in the Offer, then Tenant shall have a right of
first refusal to lease the applicable Offer Space ("Right of First Refusal")
upon the same terms and conditions as set forth in the Offer. Landlord shall,
promptly following Landlord's receipt of the Offer, deliver written notice to
Tenant specifying the terms and conditions of the Offer. Tenant shall exercise
its Right of First Refusal, if at all, by providing Landlord with written notice
of exercise within three (3) business days following the date of Tenant's
receipt of Landlord's notice regarding the Offer. If Tenant exercises its Right
of First Refusal within said three (3) business day period, then Landlord and
Tenant shall execute a lease for the applicable Offer Space which includes the
terms and conditions set forth in the Offer within ten (10) business days after
the date of Tenant's exercise
3
73
of the Right of First Refusal with respect to the Offer Space in question. If
Tenant fails to provide Landlord with such written notice of exercise within
such three (3) business day period, then Tenant shall be deemed to have elected
to not exercise its Right of First Refusal with respect to the Offer Space in
question. If Tenant elects (or is deemed to have elected) not to exercise its
Right of First Refusal within three (3) business days after the date of Tenant's
receipt of Landlord's notice regarding the Offer, or if, after Tenant exercises
the Right of First Refusal, Landlord and Tenant do not execute a lease for the
applicable Offer Space which includes the terms and conditions set forth in the
Offer within ten (10) business days after the date of Tenant's exercise of the
Right of First Refusal, then Tenant's Right of First Refusal in the instance in
question shall be deemed to have been waived by Tenant, and Landlord shall be
free to lease the Offer Space in question, free and clear of Tenant's Right of
First Refusal, to a third party on terms and conditions no more favorable to
such third party than the terms and conditions set forth in the applicable
Offer.
The Right of First Refusal shall be exercisable by Tenant on the
express conditions that (i) at the time of the exercise of the Right of First
Refusal, an Event of Default shall not have occurred under the Lease, and (ii)
Tenant has not been ten (10) or more days late in the payment of Rent more than
a total of three (3) times during the Term.
The Right of First Refusal shall be personal to Seagate Technology,
Inc. and shall not be assignable or transferable to any assignee of Tenant or
any sublessee of all or any portion of the Premises. If Tenant subleases or
assigns or otherwise transfers any interest under the Lease prior to its
exercise of the Right of First Refusal, the Right of First Refusal shall
automatically terminate and be of no further force or effect.
4
74
EXHIBIT "H"
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the ________ day of
________________. 1995, by and between GENERAL ELECTRIC CAPITAL CORPORATION, a
New York corporation ("Mortgagee"), and SEAGATE TECHNOLOGY, INC., a Delaware
corporation ("Lessee").
RECITALS:
A. Mortgagee has provided an acquisition and development loan
("Loan") to WHC-SIX Real Estate Limited Partnership, Owner/Lessor ("Borrower"),
for the purpose of financing Borrower's acquisition and development of the
Stevens Creek in Santa Clara, California and described in Exhibit A attached
hereto and incorporated herein by reference (said real property and improvements
being herein called the "Project"), such Loan being secured by a First Deed of
Trust and Security Agreement dated August 4, 1994 and recorded in Instrument No.
12605749, Page _____, et seq., of the official Records of Santa Xxxxx County,
California (the "Mortgage"), constituting a lien or encumbrance on the Project;
and
B. Lessee is the holder of a leasehold estate in and to Suite 150
of the Project, consisting of approximately 39,676 rentable square feet of space
(the "Demised Premises"), under that certain Lease (the "Lease") dated April 18,
1995, executed by Borrower, as Landlord (Borrower being sometimes hereinafter
called "Lessor"), and Lessee, as Tenant; and
C. Lessee and Mortgagee desire to confirm their understandings
with respect to the Lease and Mortgage.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, Lessee and Mortgagee agree and
covenant as follows:
1. Non-Disturbance. Mortgagee agrees that it will not disturb the
possession of Lessee under the Lease upon any judicial or non-judicial
foreclosure of the Mortgage or upon acquiring title to the Project by
deed-in-lieu of foreclosure, or otherwise, if the Lease is in full force and
effect and Lessee is not then in default under the Lease, and that Mortgagee
will accept the attornment of Lessee thereafter so long as Lessee is not in
default under the Lease.
2. Attornment. If the interests of Lessor in and to the Demised
Premises are owned by Mortgagee by reason of any deed-in-lieu of foreclosure,
judicial foreclosure, sale pursuant to any power of sale or other proceedings
brought by it or by any other manner, including, but not limited to, Mortgagee's
exercise of its rights under any assignment of leases and rents, and Mortgagee
succeeds to the interest of Lessor under the Lease, Lessee shall be bound to
Mortgagee under all of the terms, covenants and conditions of the Lease for the
balance of the
75
term thereof remaining and any extension thereof duly exercised by Lessee with
the same force and effect as if Mortgagee were the Lessor under the Lease; and
Lessee does hereby attorn to Mortgagee, as its lessor, said attornment to be
effective and self-operative, without the execution of any further instruments
on the part of any of the parties hereto, immediately upon Mortgagee's
succeeding to the interest of Lessor under the Lease; provided, however, that
Lessee shall be under no obligation to pay rent to Mortgagee until Lessee
receives written notice from Mortgagee that Mortgagee has succeeded to the
interest of the Lessor under the Lease or otherwise has the right to receive
such rents. The respective rights and obligations of Lessee and Mortgagee upon
such attornment, to the extent of the then remaining balance of the term of the
Lease, shall be and are the same as now set forth therein, it being the
intention of the parties hereto for this purpose to incorporate the Lease in
this Agreement by reference, with the same force and effect as if set forth in
full herein.
3. Mortgagee's Obligations. If Mortgagee shall succeed
to the interest of Lessor under the Lease, Mortgagee, subject to the
last sentence of this Paragraph 3, shall be bound to Lessee under all
of the terms, covenants and conditions of the Lease; provided, however,
that Mortgagee shall not be:
(a) Liable for any act or omission of any prior lessor
(including Lessor); or
(b) Subject to the offsets or defenses which Lessee might have
against any prior lessor (including Lessor); or
(c) Bound by any rent or additional rent or advance rent which
Lessee might have paid for more than the current month to any prior
lessor (including Lessor), and all such rent shall remain due and
owing, notwithstanding such advance payment; or
(d) Bound by any security or advance rental deposit made by
Lessee which is not delivered or paid over to Mortgagee and with
respect to which Lessee shall look solely to Lessor for refund or
reimbursement; or
(e) Bound by any termination, amendment or modification of the
Lease made without its consent and written approval.
Neither General Electric Capital Corporation nor any other party who from time
to time shall be included in the definition of Mortgagee hereunder, shall have
any liability or responsibility under or pursuant to the terms of this Agreement
after it ceases to own an interest in the Project. Nothing in this Agreement
shall be construed to require Mortgagee to see to the Application of the
proceeds of the Loan, and Lessee's agreements set forth herein shall not be
impaired on account of any modification of the documents evidencing and securing
the Loan. Lessee acknowledges that Mortgagee is obligated only to Borrower to
make the Loan only upon the terms and subject to the conditions set forth in the
Loan Agreement between Mortgagee and Borrower pertaining to the Loan. Lessee
further acknowledges and agrees that neither Mortgagee nor any purchaser of the
Project at foreclosure sale or any grantee of the Project named in a
deed-in-lieu of foreclosure, nor any heir, legal representative, successor, or
assignee
76
of Mortgagee or any such purchaser or grantee, has or shall have any personal
liability for the obligations of Lessor under the Lease; provided, however, that
the Lessee may exercise any other right or remedy provided thereby or by law in
the event of any failure by Lessor to perform any such material obligation.
4. Subordination. The Lease and all rights of Lessee thereunder
are subject and subordinate to the Mortgage and to any deeds of trust,
mortgages, ground leases or other instruments of security which do now or may
hereafter cover the Project or any interest of Lessor therein (collectively, the
"Prior Encumbrances") and to any and all advances made on the security thereof
and to any and all increases, renewals, modifications, consolidations,
replacements and extensions of the Mortgage or of any of the Prior Encumbrances.
This provision is acknowledged by Lessee to be self-operative and no further
instrument shall be required to effect such subordination of the Lease. Lessee
shall, however, upon demand at any time or times execute, acknowledge and
deliver to Mortgagee any and all instruments and certificates that in
Mortgagee's judgment may be necessary or proper to confirm or evidence such
subordination. If Lessee shall fail or neglect to execute, acknowledge and
deliver any such instrument or certificate, Mortgagee may, in addition to any
other remedies Mortgagee may have, as agent and attorney-in-fact of Lessee,
execute, acknowledge and deliver the same and Lessee hereby irrevocably appoints
Mortgagee as Lessee's agent and attorney-in-fact for such purpose. However,
notwithstanding the generality of the foregoing provisions of this paragraph,
Lessee agrees that Mortgagee shall have the right at any time to subordinate the
Mortgage, and any such other mortgagee or ground lessor shall have the right at
any time to subordinate any such Prior Encumbrances, to the Lease on such terms
and subject to such conditions as Mortgagee or any such other mortgagee or
ground lessor, may deem appropriate in its discretion.
5. New Lease. Upon the written request of either Mortgagee or
Lessee to the other given at the time of any foreclosure, trustee's sale or
conveyance in lieu thereof, the parties agree to execute a lease of the Demised
Premises upon the same terms and conditions as the Lease between Lessor and
Lessee, which lease shall cover any unexpired term of the Lease existing prior
to such foreclosure, trustee's sale or conveyance in lieu of foreclosure.
6. Notice. Lessee agrees to give written notice to Mortgagee of
any default by Lessor or Borrower under the Lease not less than thirty (30) days
prior to terminating the Lease or exercising any other right or remedy
thereunder or provided by law. Lessee further agrees that it shall not terminate
the Lease or exercise any such right or remedy provided such default is cured
within thirty (30) days; provided, however, that if such default cannot by its
nature be cured within thirty (30) days, then Lessee shall not terminate the
Lease or exercise any such right or remedy, provided the curing of such default
is commenced within such thirty (30) days and is diligently prosecuted
thereafter. Such notices shall be delivered by certified mail, return receipt
requested to:
General Electric Capital Corporation, Attn.: Portfolio Management
One Galleria Tower, Suite 2000
00000 Xxxx Xxxx, XX 00
Xxxxxx, Xxxxx 00000
77
7. Mortgagee. The term "Mortgagee" shall be deemed to include
General Electric Capital Corporation and any of its successors and assigns,
including anyone who shall have succeeded to Lessor's interest in and to the
Lease and the Project by, through or under judicial foreclosure or sale under
any power or other proceedings brought pursuant to the Mortgage, or deed in lieu
of such foreclosure or proceedings, or otherwise.
8. Estoppel. Lessee hereby certifies, represents and warrants to
Mortgagee that:
(a) That the Lease is a valid lease and in full force and
effect. That there is no existing default in any of the terms and
conditions thereof and no event has occurred which, with the passing of
time or giving of notice or both, would constitute an event of default;
(b) That the Lease has not been amended, modified,
supplemented, extended, renewed or assigned, and represents the entire
agreement of the parties;
(c) That, except as provided in the Lease, Lessee is entitled
to no rent concessions or abatements;
(d) That Lessee shall not pay rental under the Lease for more
than one (1) month in advance. Lessee agrees that Lessee shall, upon
written notice by Mortgagee, pay to Mortgagee, when due, all rental
under the Lease;
(e) That all obligations and conditions under the Lease to be
performed to date have been satisfied, free of defenses and set-offs;
and
(f) That Lessee has not received written notice of any claim,
litigation or proceedings, pending or threatened, against or relating
to Lessee, or with respect to the Demised Premises which would affect
its performance under the Lease. Lessee has not received written notice
of any violations of any federal, state, county or municipal statues,
laws, codes, ordinances, rules, regulations, orders, decrees or
directives relating to the use or condition of the Demised Premises or
Lessee's operations thereon.
9. Modification and Successors. This Agreement may not be
modified orally or in any manner other than by an agreement, in writing, signed
by the parties hereto and their respective successors in interest. This
Agreement shall inure to the benefit of and be binding upon the parties hereto,
their successors and assigns.
10. Counterparts. This Agreement may be executed in several
counterparts, and all so executed shall constitute one agreement, binding on all
parties hereto, notwithstanding that all parties are not signatories to the
original or the same counterpart.
78
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MORTGAGEE: GENERAL ELECTRIC CAPITAL CORPORATION,
A NEW YORK CORPORATION
By:
----------------------------------
Its
-------------------, ------------
LESSEE: SEAGATE TECHNOLOGY, INC.
a Delaware corporation
By:
----------------------------------
---------------, -----------------
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
This instrument was acknowledged before me on this ____________ day of
_____________, 199___ by ____________________, ____________________ of GENERAL
ELECTRIC CAPITAL CORPORATION, a New York corporation, on behalf of said
corporation.
(SEAL) -------------------------------------------
Notary Public in and for the State of Texas
-------------------------------------------
Print name of notary
My Commission Expires:
--------------------
79
STATE OF __________ Section
Section
COUNTY OF _______ Section
This instrument was acknowledged before me on this __________ day of
__________, 199___ by ____________________, _______________ of
_________________________, a _______________, on behalf of said
_________________________.
(SEAL)
-------------------------------------
Notary Public in and for
-------------------------------------
Print name of notary
My Commission Expires:
---------------
80
EXHIBIT "A"
Legal Description
[to be attached]
