LEASE AGREEMENT
THIS LEASE, made this 3rd day of December, 1998 between XXXX XXXXXXXXX,
Trustee, or his Successor Trustee, UTA dated 7/20/7 (XXXX XXXXXXXXX SURVIVOR'S
TRUST) as amended, and XXXXXXX X. XXXXX, Trustee, or his Successor Trustee, UTA
dated 7/20/77 (XXXXXXX X. XXXXX SEPARATE PROPERTY TRUST) as amended, hereinafter
called Landlord, and QUANTUM EFFECT DESIGN, INC., a California corporation,
hereinafter called Tenant.
W I T N E S S E T H
Landlord hereby leases to Tenant and Tenant hereby hires and takes from
Landlord those certain premises (the "Premises") outlined in red on Exhibit "A"
attached hereto and incorporated hereby by this reference thereto more
particularly described as follows:
"A portion of that certain 22,500+/- square foot, one-story building
located at 0000-0 Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx
00000, consisting of approximately 5,189+/- square feet of space. Said
Premises is more particularly shown within the area outlined in Red on
EXHIBIT A attached hereto. The entire parcel, of which the Premises is
a part, is shown within the area outlined in Green on EXHIBIT A
attached. The Premises is leased on an "as-is" basis, in its present
condition, and in the configuration as shown in Red on EXHIBIT B to be
attached hereto.
As used herein the Complex shall mean and include all of the land
outlined in Green and described in Exhibit "A", attached hereto, and all of the
buildings, improvements, fixtures and equipment now or hereafter situated on
said land.
Said letting and hiring is upon and subject to the terms, covenants and
conditions hereinafter set forth and Tenant covenants as a material part of the
consideration for this Lease to perform and observe each and all of said terms,
covenants and conditions. This Lease is made upon the conditions of such
performance and observance.
1. USE. Tenant shall use the Premises only in conformance with
applicable governmental regulations, rules and ordinances for the purpose of
general office, light manufacturing, research and development, and storage and
other uses necessary for Tenant to conduct Tenant's business, provided that such
uses shall be in accordance with all applicable governmental laws and ordinances
and for no other purpose. Tenant shall not do or permit to be done in or about
the Premises or the Complex nor bring or keep or permit to be brought or kept in
or about the Premises or the Complex anything which is prohibited by or will in
any way increase the existing rate of (or otherwise affect) fire or any
insurance covering the Complex or any part thereof, or any of its contents, or
will cause a cancellation of any insurance covering the Complex or any part
thereof, or any of its contents. Tenant shall not do or permit to be done
anything in, on or about the Premises or the Complex which will in any way
obstruct or interfere with the rights of other tenants or occupants of the
Complex or injure or annoy them, or use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor
1.
shall Tenant cause, maintain or permit any nuisance in, on or about the
Premises or the Complex. No sale by auction shall be permitted on the
Premises. Tenant shall not place any loads upon the floors, walls, or
ceiling, which endanger the structure, or place any harmful fluids or other
materials in the drainage system of the building, or overload existing
electrical or other mechanical systems. No waste materials or refuse shall be
dumped upon or permitted to remain upon any part of the Premises or outside
of the building in which the Premises are a part, except in trash containers
placed inside exterior enclosures designated by Landlord for that purpose or
inside of the building proper where designated by Landlord. No materials,
supplies, equipment, finished products or semi-finished products, raw
materials or articles of any nature shall be stored upon or permitted to
remain outside the Premises or on any portion of common area of the Complex.
No loudspeaker or other device, system or apparatus which can be heard
outside the Premises shall be used in or at the Premises without the prior
written consent of the Landlord. Tenant shall not commit or suffer to be
committed any waste in or upon the Premises. Tenant shall indemnify, defend
and hold Landlord harmless against any loss, expense, damage, attorneys'
fees, or liability arising out of failure of Tenant to comply with any
applicable law. Tenant shall comply with any covenant, condition, or
restriction (""C&R's") affecting the Premises. The provisions of this
paragraph are for the benefit of Landlord only and shall not be construed to
be for the benefit of any tenant or occupant of the Complex.
2. TERM.*
A. Subject to Paragraph 55, the term of this Lease shall be for
a period of two (2) years five (5) months (unless sooner terminated as
hereinafter provided) and, subject to Paragraphs 2(b) and 3, shall commence
on the 1st day of February, 1999 and end on the 30th of June of 2001.
B. Subject to Paragraph 55, possession of the Premises shall be
deemed tendered and the term of this Lease shall commence on February 1, 1999
or as otherwise agreed in writing.
3. POSSESSION. If Landlord, for any reason whatsoever, cannot
deliver possession of said premises to Tenant at the commencement of the said
term, as hereinbefore specified, this Lease shall not be void or voidable; no
obligation of Tenant shall be affected thereby; nor shall Landlord or
Landlord's agents be liable to Tenant for any loss or damage resulting
therefrom; but in that event the commencement and termination dates of the
Lease, and all other dates affected thereby shall be revised to conform to
the date of Landlord's delivery of possession, as specified in Paragraph 2(b)
above. The above is, however, subject to the provision that the period of
delay, of delivery of the premises shall not exceed 60 days from the
commencement date herein (except those delays caused by Acts of God, strikes,
war, utilities, governmental bodies, weather, unavailable materials, and
delays beyond Landlord's control shall
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* It is agreed in the event said Lease commences on a date other than the first
day of the month the term of the Lease will be extended to account for the
number of days in the partial month. The Basic Rent during the resulting partial
month will be pro-rated (for the number of days in the partial month) at the
Basic Rent scheduled for the projected commencement date as shown in
paragraph 43.
2.
be excluded in calculating such period) in which issuance Tenant, at its
option, may, by written notice to Landlord, terminate this Lease.
4. RENT.
A. BASIC RENT. Tenant agrees to pay to Landlord at such place
as Landlord may designate without deduction, effect, prior notice, or demand,
and Landlord agrees to accept as Basic Rent for the leased Premises the total
sum of THREE HUNDRED TWELVE THOUSAND THREE HUNDRED SEVENTY SEVEN AND 80/100
($312,377.80) Dollars in lawful money of the Untied States of America,
payable as follows:
SEE PARAGRAPHS 43 FOR BASIC RENT SCHEDULE
B. TIME FOR PAYMENT. In the event that the term of this Lease
commences on a date other than the first day of a calendar month, on the date
of commencement of the term hereof Tenant shall pay to Landlord as rent for
the period from such date of commencement to the first day of the next
succeeding calendar month that proportion of the monthly rent hereunder which
the number of days between such date of commencement and the first day of the
next succeeding calendar month bears to thirty (30). In the event the term of
this Lease for any reason ends on a date other than the last day of a
calendar month, on the first day of the last calendar month of the term
hereof Tenant shall pay to Landlord as rent for the period from said first
day of said last calendar month to and including the last day of the term
here that proportion of the monthly rent hereunder which the number of days
between said first day of said last calendar month and the first day of the
term here bears to thirty (30).
C. LATE CHARGE. Notwithstanding any other provision of this
Lease, if Tenant is in default in the payment of rental as set forth in this
Paragraph 4 when due, or any part thereof, Tenant agrees to pay Landlord, in
addition to the delinquent rental due, a late charge for each rental payment
in default ten (10) days. Said late charge shall equal ten percent (10%) of
each rental payment so in default.
D. ADDITIONAL RENT. Beginning with the commencement date of the
term of this Lease, Tenant shall pay to Landlord in addition to the Basic
Rent and as Additional Rent the following:
(a) Tenant's proportionate share of all Taxes relating to
the Complex as set forth in Paragraph 12, and
(b) Tenant's proportionate share of all insurance premiums
relating to the Complex, as set forth in Paragraph 15, and
(c) Tenant's proportionate share of expenses for the
operation, management, maintenance and repair of the Building (including
common areas of the Buildings) and Common Areas of the Complex in which the
Premises are located as set forth in Paragraph 7, and
3.
(d) All charges, costs and expenses, which Tenant is
required to pay hereunder, together with all interest and penalties, costs
and expense; including attorneys' fees and legal expenses, that may accrue
thereto in the event of Tenant's failure to pay such amounts, and all
damages, reasonable costs and expenses which Landlord may incur by reason of
default of Tenant or failure on Tenant's part to comply with the terms of
this Lease. In the event of nonpayment by Tenant of Additional Rent Landlord
shall have all the rights and remedies with respect thereto as Landlord has
for nonpayment of rent.
Landlord shall have all the rights and remedies with respect thereto
as Landlord has for nonpayment of rent. The Additional Rent due hereunder
shall be paid to Landlord or Landlord's agent (i) within five days for taxes
and insurance and within thirty days for all other Additional Rent items
after presentation of invoice from Landlord or Landlord's agent setting forth
such Additional Rent and/or (ii) at the option of Landlord, Tenant shall pay
to Landlord monthly, in advance, Tenant's pro rata share of an amount
estimated by Landlord to be Landlord's approximate average monthly
expenditure for such Additional Rent items, which estimated amount shall be
reconciled within 120 days of the end of each calendar year or more
frequently if Landlord so elects to do so at Landlord's sole and absolute
discretion, as compared to Landlord's actual expenditure for said Additional
Rent items, with Tenant paying to Landlord, upon demand, any amount of actual
expenses expended by Landlord in excess of said estimated amount, or Landlord
refunding to Tenant (providing Tenant is not in default in the performance of
any of the terms, covenants and conditions of this Lease) any amount of
estimated payments made by Tenant in excess of Landlord's actual expenditures
for said Additional Rent items.
The respective obligations of Landlord and Tenant under this
paragraph shall survive the expiration or other termination of the term of
this Lease, and if the term hereof shall expire or shall otherwise terminate
on a day other than the last day of a calendar year, the actual Additional
Rent incurred for the calendar year in which the term hereof expires or
otherwise terminates shall be determined and settled on the basis of the
statement of actual Additional Rent for such calendar year and shall be pro
rated in the proportion which the number of days in such calendar year
preceding such expiration or termination bears to 365.
E. FIXED MANAGEMENT FEE. Beginning with the Commencement Date
of the Term of this Lease, Tenant shall pay to Landlord, in addition to the
Basic Rent and Additional Rent, a fixed monthly management fee ("Management
Fee") equal to 3% of the Basic Rent due for each month during the Lease Term.
E. PLACE OF PAYMENT OF RENT AND ADDITIONAL RENT. All Basic Rent
hereunder and all payments hereunder for Additional Rent shall be paid to
Landlord at the office of Landlord at Xxxxx/Arrillaga, File 0000, Xxx 00000,
Xxx Xxxxxxxxx, XX 00000 or to such other person or to each other place as
Landlord may from time to time designate in writing.
F. SECURITY DEPOSIT. Concurrently with Tenant's execution of
this Lease, Tenant shall deposit with Landlord the sum of TWENTY TWO THOUSAND
EIGHT HUNDRED THIRTY ONE AND 60/100 ($22,831.60) Dollars. Said sum shall be
held by Landlord as a Security Deposit for the faithful performance by Tenant
of all of the terms,
4.
covenants, and conditions of this Lease to be kept and performed by Tenant
during the term hereof. If Tenant defaults with respect to any provision of
this Lease, including, but not limited to, the provisions relating to the
payment of rent and any of the monetary sums due herewith, Landlord may (but
shall not be required to) use, apply or retain all or any part of this
Security Deposit for the payment of any other amount which Landlord may spend
by reason of Tenant's default or to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of Tenant's default. If any
portion of said Deposit is so used or applied, Tenant shall, within ten (10)
days after written demand therefor, deposit cash with Landlord in the amount
sufficient to restore the Security Deposit to its original amount. Tenant's
failure to do so shall be a material breach of this Lease. Landlord shall not
be required to keep this Security Deposit separate from its general funds,
and Tenant shall not be entitled to interest on such Deposit. If Tenant fully
and faithfully performs every provision of this Lease to be performed by it,
the Security Deposit or any balance thereof shall be returned to Tenant (or
at Landlord's option, to the last assignee of Tenant's interest hereunder) at
the expiration of the Lease term and after Tenant has vacated the Premises.
In the event of termination of Landlord's interest in this Lease, Landlord
shall transfer said Deposit to Landlord's successor in interest whereupon
Tenant agrees to release Landlord from liability for the return of such
Deposit or the accounting therefor.
5. RULES AND REGULATIONS AND COMMON AREA. Subject to the terms and
conditions of this Lease and such Rules and Regulations as Landlord may from
time to time prescribe, Tenant and Tenant's employees, invitees and customers
shall, in common with other occupants of the Complex in which the Premises are
located, and their respective employees, invitees and customers, and others
entitled to the use thereof, have the nonexclusive right to xxx the access
roads, parking areas, and facilities provided and designated by Landlord for the
general use and convenience of the occupants of the Complex in which the
Premises are located, which areas and facilities are referred to herein as
"Common Area." This right shall terminate upon the termination of this Lease.
Landlord reserves the right from time to time to make changes in the shape,
size, location, amount and extent of Common Area. Landlord further reserves the
right to promulgate such reasonable rules and regulations relating to the use of
the Common Area, and any part or parts thereof, as Landlord may deem appropriate
for the best interests of the occupants of the Complex. The Rules and
Regulations shall be binding upon Tenant upon delivery of a copy of them to
Tenant, and Tenant shall abide by them and cooperate in their observance. Such
Rules and Regulations may be amended by landlord from time to time, with or
without advance notice, and all amendments shall be effective upon delivery of a
copy to Tenant. Landlord shall not be responsible to Tenant for the
non-performance by any other tenant or occupant of the Complex of any of said
Rules and Regulations.
Landlord shall operate, manage and maintain the Common Area. The manner
in which the Common Area shall be maintained and the expenditures for such
maintenance shall be at the discretion of Landlord.
6. PARKING. Tenant shall have the right to use with other tenants or
occupants of the Complex 16 parking spaces in the common parking areas of the
Complex. Tenant agrees, that Tenant, Tenant's employees, agents, representatives
and/or invitees shall not use parking spaces in excess of said 16 spaces
allocated to Tenant hereunder. Landlord shall have the right,
5.
at Landlord's sole discretion, to specifically designate the location of
Tenant's parking spaces within the common parking areas of the Complex in the
event of a dispute among the tenants occupying the building and/or Complex
referred to herein, in which event Tenant agrees that Tenant, Tenant's
employees, agents, representatives and/or invitees shall not use any parking
spaces other than those parking spaces specifically designated by Landlord
for Tenant's use. Said parking spaces, if specifically designated by Landlord
to Tenant, may be relocated by Landlord at any time, and from time to time,
Landlord reserves the right, at Landlord's sole discretion, to rescind any
specific designation of parking spaces, thereby returning Tenant's parking
spaces to the common parking area. Landlord shall give Tenant written notice
of any change in Tenant's parking spaces. Tenant shall not, at any time,
park, or permit to be parked, any trucks or vehicles adjacent to the loading
areas so as to interfere in any way with the use of such areas, nor shall
Tenant at any time park, or permit the parking of Tenant's trucks or other
vehicles or the trucks and vehicles of Tenant's suppliers or others, in any
portion of the common area not designated by Landlord for such use by Tenant.
Tenant shall not park nor permit to be parked, any inoperative vehicles or
equipment on any portion of the common parking area or other common areas of
the Complex. Tenant agrees to assume responsibility for compliance by its
employees within the parking provision contained herein. If Tenant or its
employees park in other than such designated parking areas, then Landlord may
charge Tenant, as an additional charge, and Tenant agrees to pay, ten
($10.00) Dollars per day for each day or partial day each such vehicle is
parked in any area other than that designated. Tenant hereby authorizes
Landlord at Tenant's sole expense to tow away from the Complex any vehicle
belonging to Tenant or Tenant's employees parked in violation of this
provision, or to attach violation stickers or notices to such vehicles.
Tenant shall use the parking areas for vehicle parking only, and shall not
use the parking areas for storage.
7. EXPENSES OF OPERATION, MANAGEMENT, AND MAINTENANCE OF THE COMMON
AREAS OF THE COMPLEX AND BUILDING IN WHICH THE PREMISES ARE LOCATED. As
Additional Rent and in accordance with Paragraph 4D of this Lease, Tenant shall
pay to Landlord Tenant's proportionate share (calculated on a square footage or
other equitable basis as calculated by Landlord) of all expenses of operation,
management, maintenance and repair of the Common Areas of the Complex including,
but not limited to, license, permit, and inspection fees; security; utility
charges associated with exterior landscaping and lighting (including water and
sewer charges); all charges incurred in the maintenance and replacement of
landscaped areas, lakes, parking lots and paved areas (including repairs,
replacement, resealing and restriping), sidewalks, driveways, maintenance,
repair and replacement of all fixtures and electrical, mechanical, and plumbing
systems; structural elements and exterior surfaces of the buildings, salaries
and employee benefits of personnel and payroll taxes applicable thereto;
supplies, materials, equipment and tools; the cost of capital expenditures which
have the effect of reducing operating expenses, provided, however, that in the
event Landlord makes such capital improvements, Landlord may amortize its
investment in said improvements (together with interest at the rate of fifteen
(15%) percent per annum on the unamortized balance) as an operating expense in
accordance with standard account practices, provided, that such amortization is
not at a rate greater than the anticipated savings in the operating expenses.
6.
"Additional Rent" as used herein shall not include Landlord's debt
repayments; interest on charges; expenses directly or indirectly incurred by
Landlord for the benefit of any other tenant; cost of the installation of
partitioning or any other tenant improvements; cost of attracting tenants;
depreciation; interest, or executive salaries.
As Additional Rent and in accordance with paragraph 4D of this Lease,
Tenant shall pay its proportionate share (calculated on a square footage or
other equitable basis as calculated by Landlord) of the cost of operation
(including common utilities, management, maintenance, and repair of the building
(including common areas such as lobbies, restroom, janitor's closets, hallways,
elevators, mechanical and telephone rooms, stairwells, entrances, spaces above
the ceilings and janitorization of said common areas) in which the Premises are
located. The maintenance items herein referred to include, but are not limited
to, all windows, window frames, plate glass, glazing, truck doors, main plumbing
systems of the building such as water and rain lines, sinks, toilets, faucets,
drains, showers and water fountains), main electrical systems (such as panels
and conduits), heating and air conditioning systems (such as compressors, fans,
air handlers, ducts, boilers, heaters), store fronts, roofs, downspouts,
building common area interiors (such as wall coverings, window coverings, floor
coverings and partitioning), ceilings, building exterior doors, skylights (if
any) automatic fire extinguishing systems, and elevators; license, permit, and
inspection fees; security, salaries and employee benefits of personnel and
payroll taxes applicable thereto; supplies, materials, equipment and tools; the
cost of capital expenditures which have the effect of reducing operating
expenses, provided, however that in the event Landlord makes such capital
improvements, Landlord may amortize its investment in said improvements
(together with interest at the rate of fifteen percent (15%) per annum on the
unamortized balance) as an operating expense in accordance with standard
accounting practices, provided, that such amortization is not at a rate greater
than the anticipated savings in the operating expenses. Tenant hereby waives all
rights under, and benefits of, subsection 1 of Section 1932 and Sections 1941
and 1942 of the California Civil Code and under any similar law, statute or
ordinance now or hereafter in effect.
8. ACCEPTANCE AND SURRENDER OF PREMISES. By entry hereunder, Tenant
accepts the Premises as being in good and sanitary order, condition and repair
and accepts the building and improvements included in the Premises in their
present condition and without representation or warranty by Landlord as to the
condition of such building or as to the use or occupancy which may be made
thereof. Any exceptions to the foregoing must be by written agreement executed
by Landlord and Tenant. Tenant agrees on the last day of the Lease term, or on
the sooner termination of this Lease, to surrender the Premises promptly and
peaceably to Landlord in good condition and repair (damage by Acts of God, fire,
normal wear and tear excepted), with all interior walls painted, or cleaned so
that they appear freshly painted, and repaired and replaced, if damaged; all
floors cleaned and waxed; all carpets cleaned and shampooed; the air
conditioning and heating equipment serviced by a reputable and licensed service
firm and in good operating condition (provided the maintenance of such equipment
has been Tenant's responsibility during the term of this Lease) together with
all alterations, additions, and improvements which may have been made in, to, or
on the Premises (except movable trade fixtures installed at the expense of
Tenant) except that Tenant shall ascertain from Landlord within thirty (30) days
before the end of the term of this Lease whether Landlord
7.
desires to have the Premises or any part or parts thereof restored to their
condition and configuration as when the Premises were delivered to Tenant and
if Landlord shall so desire, then Tenant shall restore said Premises or such
part or parts thereof before the end of this Lease at Tenant's sole cost and
expense. Tenant, on or before the end of the term or sooner termination of
this Lease, shall remove all of Tenant's personal property and trade fixtures
from the Premises, and all property not so removed on or before the end of
the term or sooner termination of this Lease shall be deemed abandoned by
Tenant and title to same shall thereupon pass to Landlord without
compensation to Tenant. Landlord may, upon termination of this Lease, remove
all moveable furniture and equipment so abandoned by Tenant, at Tenant's sole
cost, and repair any damage caused by such removal at Tenant's sole cost. If
the Premises be not surrendered at the end of the term or sooner termination
of this Lease, Tenant shall indemnify Landlord against loss or liability
resulting from the delay by Tenant in so surrendering the Premises including,
without limitation, any claims made by any succeeding tenant founded on such
delay. Nothing contained herein shall be construed as an extension of the
term hereof or as a consent of Landlord to any holding over by Tenant. The
voluntary or other surrender of this Lease or the Premises by Tenant or a
mutual cancellation of this Lease shall not work as a merger and, at the
option of Landlord, shall either terminate all or any existing subleases or
subtenancies or operate as an assignment to Landlord of all or any such
subleases or subtenancies.
9. ALTERATIONS AND ADDITIONS. Tenant shall not make, or suffer to be
made, any alteration or addition to the Premises, or any part thereof, without
the written consent of Landlord first hand and obtained by Tenant, but at the
cost of Tenant, and any addition to, or alteration of, the Premises, except
moveable furniture and trade fixtures, shall at once become a part of the
Premises and belong to Landlord. Landlord reserves the right to approve all
contractors and mechanics proposed by Tenant to make such alterations and
additions. Tenant shall retain title to all moveable furniture and trade
fixtures placed in the Premises. All heating, lighting, electrical, air
conditioning, floor to ceiling partitioning, drapery, carpeting, and floor
installations made by Tenant, together with all property that has become an
integral part of the Premises, shall not be deemed trade fixtures. Tenant agrees
that it will not proceed to make such alteration or additions, without having
obtained consent from Landlord to do so, and until five (5) days from the
receipt of such consent, in order that Landlord may post appropriate notices to
avoid any liability to contractors or material suppliers for payment for
Tenant's improvements. Tenant will at all times permit such notices to be posted
and to remain posted until the completion of work. Tenant shall, if required by
Landlord, secure at Tenant's own cost and expense, a completion and lien
indemnity bond, satisfactory to Landlord, for such work. Tenant further
covenants and agrees that any mechanic's lien filed against the Premises or
against the Premises or against the complex for work claimed to have been done
for, or materials claimed to have been furnished to Tenant, will be discharged
by Tenant, by bond or otherwise, within thirty (30) days after the filing
thereof, at the cost of expense of Tenant. Any exceptions to the foregoing must
be made in writing and executed by both Landlord and Tenant.
10. TENANT MAINTENANCE. Tenant shall, at its sole cost and expense,
keep and maintain the Premise (including appurtenances) and every part thereof
in a high standard of maintenance and repair, and in good and sanitary
condition. Tenant's maintenance and repair responsibilities herein referred to
include, but are not limited to, janitorization, plumbing systems
8.
within the non-common areas of the Premises (such as water and drain lines,
sinks), electrical systems within the non-common areas of the Premises (such
as outlets, lighting fixtures, lamps, bulbs, tubes, ballasts), heating and
air conditioning controls within the non-common areas of the Premises (such
as mixing boxes, thermostats, time clocks, supply and return grills), all
interior improvements within the premises including but not limited to: wall
coverings, window coverings, acoustical ceilings, vinyl tile, carpeting,
partitioning, doors (both interior and exterior, including closing
mechanisms, latches, locks), and all other interior improvements of any
nature whatsoever. Tenant agrees to provide carpet xxxxxxx under all rolling
chairs or to otherwise be responsible for wear and tear of the carpet caused
by such rolling chairs if such wear and tear exceeds that caused by normal
foot traffic in surrounding areas. Areas of excessive wear shall be replaced
at Tenant's sole expense upon Lease termination. See Paragraph 51.
11. UTILITIES OF THE BUILDING IN WHICH THE PREMISES ARE LOCATED. As
Additional Rent and in accordance with paragraph 4 D of this Lease, Tenant shall
pay its proportionate share (calculated on a square footage or other equitable
basis as calculated by Landlord) of the cost of all utility charges such as
water, gas, electricity, telephone, telex and other electronic communications
service, sewer service, waste-pick-up and any other utilities, materials or
services furnished directly to the building in which the Premises are located,
including, without limitation, any temporary or permanent utility surcharge or
other exactions whether or not hereinafter imposed.
Landlord shall not be liable for and Tenant shall not be entitled to
any abatement or reduction of rent by reason of any interruption or failure of
utility services in the Premises when such interruption or failure is caused by
accident, breakage, repair, strikes, lockouts, or other labor disturbances or
labor disputes of any nature, or by any other cause, similar or dissimilar,
beyond the reasonable control of Landlord.
Provided that Tenant is not in default in the performance or observance
of any of the terms, covenants or conditions of this Lease to be performed or
observed by the Landlord shall furnish to the Premises between the hours of 8:00
a.m. and 6:00 p.m. Monday through Fridays (holidays excepted) and subject to the
rules and regulations of the complex hereinbefore referred to, reasonable
quantities of water, gas and electricity suitable for the intended use of the
Premises and heat and air conditioning required in Landlord's judgment for the
comfortable use and occupation of the Premises for such purposes. Tenant may,
from time to time, have its staff and equipment operate within the Premises on a
twenty-four (24) hour-a-day, seven (7) day-a-week schedule, and Tenant shall pay
for any extra utilities used by Tenant. Tenant agrees that at all times it will
cooperate fully with Landlord and abide by all regulations and requirements that
Landlord may prescribe for the proper functioning and protection of the building
heating, ventilating, and air conditioning systems. Whenever heat generating
machines, equipment, or any other devices (including exhaust fans) are used in
the Premises by Tenant which affect the temperature or otherwise maintained by
the air conditioning system, Landlord shall have the right to install
supplementary air conditioning units in the Premises and the cost thereof,
including the cost of installation and the cost of operation and maintenance
thereof, shall be paid by Tenant to Landlord upon demand by Landlord. Tenant
will not, without the written consent of Landlord, use any apparatus or device
in the premises (including, without limitation),
9.
electronic data processing machines or machines using current in excess of
110 Volts which will in any way increase the amount of electricity, gas,
water or air conditioning usually furnished or supplied to premises being
used as general office space, or connect with electric current (except
through existing electrical outlets in the Premises), or with gas or water
pipes any apparatus or device for the purposes of using electric current,
gas, or water. If Tenant shall require water, gas, or electric current in
excess of that usually furnished or supplied to premises being used as
general office space. Tenant shall first obtain the written consent of
Landlord, which consent shall not be unreasonably withheld and Landlord may
cause an electric current, gas or water meter to be installed in the Premises
in order to measure the amount of electric current, gas or water consumed for
any such excess use. The cost of any such meter and of the installation,
maintenance and repair thereof, all charges for such excess water, gas and
electric current consumed (as shown by such meters and at the rates then
charged by the furnishing public utility); and any additional expense
incurred by Landlord in keeping account of electric current, gas, or water so
consumed shall be paid by Tenant, and Tenant agrees to pay Landlord therefor
promptly upon demand by Landlord.
12. TAXES.
A. As Additional Rent and in accordance with paragraph 4 D of
this Lease, Tenant shall pay to Landlord Tenant's proportionate share of all
Real Property Taxes, which pro rata share shall be allocated to the leased
Premises by square footage or other equitable basis, as calculated by
Landlord. The term "Real Property Taxes," as used herein, shall mean (i) all
taxes, assessments, levies and other charges of any kind or nature
whatsoever, general and special, foreseen and unforeseen (including all
installments of principal and interest required to pay any general or special
assessments for public improvements and any increases resulting from
reassessments caused by any change in ownership of the Complex) now or
hereafter imposed by a governmental or quasi-governmental authority or
special district having the direct or indirect power to tax or levy
assessments, which are levied or assessed against, or with respect to the
value, occupancy or use of, all or any portion of the Complex (as now
constructed or as may at any time hereafter be constructed, altered, or
otherwise changed) or Landlord's interest therein; any improvements located
within the Complex (regardless of ownership); the fixtures, equipment and
other property of Landlord, real or personal, that are an integral part of
and located in the Complex; or parking areas, public utilities, or energy
within the Complex; (ii) all charges levies or fees imposed by reason of
environmental regulation or other governmental control of the Complex; and
(iii) all costs and fees (including attorneys' fees) incurred by Landlord in
contesting any Real Property Tax and in negotiating with public authorities
as to any Real Property Tax. If at any time during the term of this Lease the
taxation or assessment of the complex prevailing as of the commencement date
of this Lease shall be altered so that in lieu of or in addition to any Real
Property Tax described above there shall be levied, assessed or imposed
(whether by reason of a change in the method of taxation or assessment,
creation of a new tax or charge, or any other cause) an alternate or
additional tax or charge (i) on the value, use or occupancy of the Complex or
Landlord's interest therein or (ii) on or measured by the gross receipts,
income or rentals for the Complex, on Landlord's business of leasing the
Complex, or computed in any manner with respect to the operation of the
Complex, then any such tax or charge, however designated, shall be included
within the meaning of the term "Real
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Property Taxes" for purposes of this Lease. If any Real Property Tax is based
upon property or rents unrelated to the Complex, then only that part of such
real Property Tax that is fairly allocable to the Complex shall be included
within the meaning of the term "Real Property Taxes." Notwithstanding the
foregoing, the term "Real Property Taxes" shall not include estate,
inheritance, gift or franchise taxes of Landlord or the federal or state net
income tax imposed on Landlord's income from all sources.
B. TAXES ON TENANT'S PROPERTY.
(a) Tenant shall be liable for and shall pay ten
days before delinquency, taxes levied against any personal property or
trade fixtures placed by Tenant in or about the Premises. If any such taxes
on Tenant's personal property or trade fixtures are levied against Landlord
or Landlord's property or if the assessed value of the Premises is increased
by the inclusion therein of a value placed upon such personal property or
trade fixtures of Tenant and if Landlord, after written notice to Tenant,
pays the taxes based on such increased assessment, which Landlord shall have
the right to do regardless of the validity thereof, but only under proper
protest is requested by Tenant. Tenant shall upon demand, as the case may be,
repay to Landlord the taxes so levied against Landlord, or the proportion of
such taxes resulting from such increase in the assessment; provided that in
any such event Tenant shall have the right, in the name of Landlord and with
Landlord's full cooperation, to bring suit in any court of competent
jurisdiction to recover the amount of any such taxes so paid under protest,
and any amounts so recovered shall belong to Tenant.
(b) If Tenant improvements in the Premises, whether
installed, and/or paid for by Landlord or Tenant and whether or not affixed
to the real property so as to become a part thereof, are assessed for real
property tax purposes at a valuation higher than the valuation at which
standard office improvements in other space in the Complex are assessed, then
the real property taxes and assessments levied against Landlord or the
Complex by reason of such excess assessed valuation shall be deemed to be
taxes levied against personal property of Tenant and shall be governed by the
provisions of 12Ba above. If the records of the County Assessor are available
and sufficiently detailed to serve as a basis for determining whether said
Tenant improvements are assessed at a higher valuation than standard office
improvements in other space in the Complex, such records shall be binding on
both the Landlord and the Tenant. If the records of the County Assessor are
not available or sufficiently detailed to serve as a basis for making said
determination, the actual cost of construction shall be used.
13. LIABILITY INSURANCE. Tenant, at Tenant's expense, agrees to keep in
force during the term of this Lease a policy of commercial general liability
insurance with a combined single limit coverage of not less than Two Million
Dollars ($2,000,000) per occurrence for injuries to or death of persons
occurring in, on or about the Premises or the Complex, and property damage. The
policy or policies affecting such insurance, certificates of insurance of which
shall be furnished to Landlord, shall name Landlord as additional insureds, and
shall insure any liability of Landlord, contingent or otherwise, as respects
acts or omissions of Tenant, its agents, employees or invitees or otherwise by
any conduct or transactions of any of said persons in or about or concerning the
Premises, including any failure of Tenant to observe or
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perform any of its obligations hereunder; shall be issued by an insurance
company admitted to transact business in the State of California; and shall
provide that the insurance effected thereby shall not be canceled, except
upon thirty (30) days prior written notice to Landlord. If, during the term
of this Lease, in the considered opinion of Landlord's Lender, insurance
advisor, or counsel, the amount of insurance described in this paragraph 13
is not adequate, Tenant agrees to increase said coverage to such reasonable
amount as Landlord's Lender, insurance advisor, or counsel shall deem
adequate.
14. TENANT'S PERSONAL PROPERTY INSURANCE AND WORKMANS COMPENSATION
INSURANCE. Tenant shall maintain a policy or policies of fire and property
damage insurance in "all risk" form with a sprinkler leakage endorsement
insuring the personal property, inventory, trade fixtures, and leasehold
improvements within the leased Premises for the full replacement value thereof.
The proceeds from any of such policies shall be used for the repair or
replacement of such items so insured. Tenant shall also maintain a policy or
policies of xxxxxxx'x compensation insurance and any other employee benefit
insurance sufficient to comply with all laws.
15. PROPERTY INSURANCE. Landlord shall purchase and keep in force and
as Additional Rent and in accordance with Paragraph 4D of this Lease, Tenant
shall pay to Landlord (or Landlord's agent if so directed by Landlord) Tenant's
proportionate share (calculated on a square footage or other equitable basis as
calculated by Landlord) of the deductibles on insurance claims and the cost of
policy or policies of insurance covering loss or damage to the Premises and
Complex in the amount of the full replacement value thereof, providing
protection against those perils included within the classification of "all
risks" insurance and flood and/or earthquake insurance, if available, plus a
policy of rental income insurance in the amount of one hundred percent (100%) of
twelve (12) months Basic Rent, plus sums paid as Additional Rent. If such
insurance cost is increased due to Tenant's use of the Premises or the Complex,
Tenant agrees to pay to Landlord the full cost of such increase. Tenant shall
have no interest in nor any right to the proceeds of any insurance procured by
Landlord for the Complex.
Landlord and Tenant do each hereby respectively release the other, to
the extent of insurance coverage of the releasing party, from any liability for
loss or damage caused by fire or any of the extended coverage casualties
included in the releasing party's insurance policies, irrespective of the cause
of such fire or casualty; provided, however, that if the insurance policy of
either releasing party prohibits such waiver, then this waiver shall not take
effect until consent to such waiver is obtained. If such waiver is so
prohibited, the insured party affected shall promptly notify the other party
thereof.
16. INDEMNIFICATION. Landlord shall not be liable to Tenant and Tenant
hereby waives all claims against Landlord for any injury to or death of any
person or damage to or destruction of property in or about the Premises or the
Complex by or from any cause whatsoever, including, without limitation, gas,
fire, oil, electricity or leakage of any character from the roof, walls,
basement or other portion of the Premises or the Complex but excluding, however
the willful misconduct or negligence of Landlord, its agents, servants,
employees,
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invitees, or contractors of which negligence Landlord has knowledge and
reasonable time to correct. Except as to injury to persons or damage to
property to the extent arising from the willful misconduct or the negligence
of Landlord, its agents, servants, employees, invitees, or contractors,
Tenant shall hold Landlord harmless from and defend Landlord against any and
all expenses, including reasonable attorneys' fees, in connection therewith,
arising out of any injury to or death of any person or damage to or
destruction of property occurring in, on or about the Premises, or any part
thereof, from any cause whatsoever.
17. COMPLIANCE. Tenant, at its sole cost and expense, shall promptly
comply with all laws, statutes, ordinances and governmental rules,
regulations or requirements now or hereafter in effect; with the requirements
of any board of fire underwriters or other similar body now or hereafter
constituted; and with any direction or occupancy certificate issued pursuant
to law by any public officer; provided, however, that no such failure shall
be deemed a breach of the provisions if Tenant, immediately upon
notification, commences to remedy or rectify said failure. The judgment of
any court of competent jurisdiction or the admission of Tenant in any action
against Tenant, whether Landlord be a party thereto or not, that Tenant has
violated any such laws, statute, ordinance or governmental rule, regulation,
requirements, direction or provisions, shall be conclusive of that fact as
between Landlord and Tenant. This paragraph shall not be interpreted as
requiring Tenant to make structural changes or improvements, except to the
extent such changes or improvements are required as a result of Tenant's use
of the Premises. Tenant shall, at its sole cost and expense, comply with any
and all requirements pertaining to said Premises, of any insurance
organization or company, necessary for the maintenance of reasonable fire and
public liability insurance covering the Premises.
18. LIENS. Tenant shall keep the Premises and the Complex free from
any liens arising out of any work performed, materials furnished or
obligation incurred by Tenant. In the event that Tenant shall not, within ten
(10) days following the imposition of such lien, cause the same to be
released of record, Landlord shall have, in addition to all other remedies
provided herein and by law, the right, but no obligation, to cause the same
to be released by such means as it shall deem proper, including payment of
the claim giving rise to such lien. All sums paid by Landlord for such
purpose, and all expenses incurred by it in connection therewith, shall be
payable to Landlord by Tenant on demand with interest at the prime rate of
interest as quoted by the Bank of America.
19. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, transfer, or
hypothecate the leasehold estate under this Lease, or any interest therein,
and shall not sublet the Premises, or any part thereof, or any right or
privilege appurtenant thereto, or suffer any other person or entity to occupy
or use the Premises, or any portion thereof, without, in each case, the prior
written consent of Landlord which consent will not be unreasonably withheld.
As a condition for granting this consent to any assignment, transfer or
subletting, Landlord shall require Tenant to pay to Landlord, as additional
rent, all rents and/or additional consideration due Tenant from its
assignees, transferees, or subtenants in excess of the Rent payable by Tenant
to landlord hereunder for the assigned, transferred, and/or subleased space.
Tenant shall, by thirty (30) days written notice, advise Landlord of its
intent to assign or transfer Tenant's interest in the Lease or sublet the
Premises or any portion thereof for any part of the term hereof. Within
thirty
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(30) days after receipt of said written notice, Landlord may, in its
sole discretion, elect to terminate this Lease as to the portion of the
Premises described in Tenant's notice on the date specified in Tenant's
notice by giving written notice of such election to terminate. If no such
notice to terminate is given to Tenant within said thirty (30) day period,
Tenant may proceed to locate an acceptable sublessee, assignee, or other
transferee for presentment to Landlord for Landlord's approval, all in
accordance with the terms, covenants, and conditions of this paragraph 19. If
Tenant intends to sublet the entire Premises and Landlord elects to terminate
this Lease, this Lease shall be terminated on the date specified in Tenant's
notice. If, however, this Lease shall terminate pursuant to the foregoing
with respect to less than all the Premises, the rent, as defined and reserved
hereinabove shall be adjusted on a pro rata basis to the number of square
feet retained by Tenant, and this Lease as so amended shall continue in full
force and effect. In the event Tenant is allowed to assign, transfer or
sublet the whole or any part of the Premises, with the prior written consent
of Landlord, no assignee, transferee or subtenant shall assign or transfer
this Lease, either in whole or in part, or sublet the whole or any part of
the Premises, without also having obtained the prior written consent of
Landlord which consent shall not be unreasonably withheld. A consent of
Landlord to one assignment, transfer, hypothecation, subletting, occupation
or use by any other person shall not release Tenant from any of Tenant's
obligations hereunder or be deemed to be a consent to any subsequent similar
or dissimilar assignment, transfer, hypothecation, subletting, occupation or
use by any other person. Any such assignment, transfer, hypothecation,
subletting, occupation or use without such consent shall be voided and shall
constitute a breach of this Lease by Tenant and shall, at the option of
Landlord exercised by written notice to Tenant, terminate this Lease. The
leasehold estate under this Lease shall not, nor shall any interest therein,
be assignable for any purpose by operation of law without the written consent
of Landlord which consent shall not be unreasonably withheld. As a condition
to its consent, Landlord shall require Tenant to pay all expenses in
connection with the assignment, and Landlord shall require Tenant's assignee
or transferee (or other assignees or transferees) to assume in writing all of
the obligations under this Lease and for Tenant to remain liable to Landlord
under this Lease.
20. SUBORDINATION AND MORTGAGES. In the event Landlord's title or
leasehold interest is now or hereafter encumbered by a deed of trust, upon the
interest of Landlord in the land and buildings in which the demised Premises are
located, to secure a loan from a lender (hereinafter referred to as "Lender") to
Landlord, Tenant shall, at the request of Landlord or Lender, execute in writing
an agreement subordinating its rights under this Lease to the lien of such deed
of trust, or, if so requested, agreeing that the lien of Lender's deed of trust
shall be or remain subject and subordinate to the rights of Tenant under this
Lease. Notwithstanding any such subordination, Tenant's possession under this
Lease shall not be disturbed if Tenant is not in default and so long as Tenant
shall pay all rent and observe and perform all of the provisions set forth in
this Lease.
21. ENTRY BY LANDLORD. Landlord reserves, and shall at all reasonable
times after at least 24 hours notice (except in emergencies) have the right to
enter the Premises to inspect them: to perform any services to be provided by
Landlord hereunder, to submit the Premises to prospective purchasers, mortgagers
or tenants; to post notices of nonresponsbility; and to alter, improve or repair
reasonably required by the character of the work to be performed;
14.
provided, however that the business of Tenant shall be interfered with to the
least extent that is reasonably practical. For each of the foregoing
purposes, any entry to the Premises obtained by Landlord by any of said
means, or otherwise, shall not under any circumstances be construed or deemed
to be a forcible or unlawful entry into or a detainer of the Premises or an
eviction, actual or constructive, of Tenant from the Premises or any portion
thereof. Landlord shall also have the right at any time to change the
arrangement or location of entrances or passageways, doors and doorways, and
corridors, elevators, stairs, toilets or other public parts of the Complex
and to change the name, number or designation by which the Complex is
commonly known, and none of the foregoing shall be deemed an actual or
constructive eviction of Tenant, or shall entitle Tenant to any reduction of
rent hereunder.
22. BANKRUPTCY AND DEFAULT. The commencement of a bankruptcy action or
liquidation action or reorganization action or insolvency action or an
assignment of or by Tenant for the benefit of creditors, or any similar action
undertaken by Tenant, or the insolvency of Tenant, shall, at Landlord's option,
constitute a breach of this Lease by Tenant. If the trustee or receiver
appointed to serve during a bankruptcy, liquidation, reorganization, insolvency
or similar action elects to reject Tenant's unexpired Lease, the trustee or
receiver shall notify Landlord in writing of its election within thirty (30)
days after an order for relief in a liquidation action or within thirty (30)
days after the commencement of any action.
Within thirty (30) days after court approval of the assumption of this
Lease, the trustee or receiver shall cure (or provide adequate assurance to the
reasonable satisfaction of Landlord that the trustee or receiver shall cure) any
and all previous defaults under the unexpired Lease and shall compensate
Landlord for all actual pecuniary loss and herein, includes, but shall not be
limited to: (i) assurance of source and payment of rent, and other consideration
due under this Lease; (ii) assurance that the assumption or assignment of this
Lease will not breach substantially any provision, such as radius, location,
use, or exclusivity provision, in any agreement relating to the above described
Premises.
Nothing contained in this section shall affect the existing right of
Landlord to refuse to accept an assignment upon commencement of or in connection
with a bankruptcy, liquidation, reorganization or insolvency action or an
assignment of Tenant for the benefit of creditors or other similar act. Nothing
contained in this Lease shall be construed as giving or granting or creating an
equity in the demised Premises to Tenant. In no event shall the leasehold estate
under this Lease, or any interest therein, be assigned by voluntary or
involuntary bankruptcy proceeding without the prior written consent of Landlord.
In no event shall this Lease or any rights or privileges hereunder be an asset
of Tenant under any bankruptcy, insolvency or reorganization proceedings.
The failure to perform or honor any covenant, condition or
representation made under this Lease shall constitute default hereunder by
Tenant upon expiration of the appropriate grace period hereinafter provided.
Tenant shall have a period of five (5) days from the date of written notice from
Landlord within which to cure any default in the payment of rental or adjustment
thereto. Tenant shall have a period of thirty (30) days from the date of written
notice from landlord within which to cure any other default under this Lease;
provided, however, that if the
15.
nature of Tenant's failure is such that more than thirty (30) days is
reasonably required to cure the same, Tenant shall not be in default so long
as Tenant commences performance within such thirty (30) day period and
thereafter prosecutes the same to completion. Upon an uncured default of this
Lease by Tenant, Landlord shall have the following rights and remedies in
addition to any other rights or remedies available to Landlord at law or in
equity:
(a) The rights and remedies provided for by California Civil Code
Section 1931.2 including but not limited to, recovery of the worth at the
time of award of the amount by which the unpaid rent for the balance of the
term after the time of award exceeds the amount of rental loss for the same
period that Tenant proves could be reasonably avoided, as computed pursuant
to subsection (b) of said Section 1951.2. Any proof by Tenant under
subparagraphs (2) and (3) of Section 1951.2 of the California Civil Code of
the amount of rental loss that could be reasonably avoided shall be made in
the following manner: Landlord and Tenant shall each select a licensed real
estate broker in the business of renting property of the same type and use as
the Premises and in the same geographic vicinity. Such two real estate
brokers shall select a third licensed real estate broker, and the three
licensed real estate brokers so selected shall determine the amount of the
rental loss that could be reasonably avoided from the balance of the term of
this Lease after the time of award. The decision of the majority of said
licensed real estate brokers shall be final and binding upon the parties
hereto.
(b) The rights and remedies provided by California Civil Code
Section which allows Landlord to continue to Lease in effect and to enforce
all of its rights and remedies under this Lease, including the right to
recover rent as it becomes due, for so long as Landlord does not terminate
Tenant's right to possession; acts of maintenance or preservation, efforts to
relet the Premises, or the apportionment of a receiver upon Landlord's
initiative to protect its interest under this Lease shall not constitute a
termination of Tenant's right to possession.
(c) The right to terminate this Lease by giving notice to Tenant
in accordance with applicable law.
(d) To the extent permitted by law, the right and power to enter
the Premises and remove therefrom all persons and property, to store such
property in a public warehouse or elsewhere at the cost of and for the
account of Tenant, and to sell such property and apply such proceeds
therefrom pursuant to applicable California law, Landlord may from time to
time sublet the Premises or any part thereof for such term or terms (which
may extend beyond the term of this Lease) and at such rent and such other
terms as Landlord in its sole discretion may deem advisable, with the right
to make alterations and repairs to the Premises. Upon each subletting, (i)
Tenant shall be immediately liable to pay Landlord, in addition to
indebtedness other than rent due hereunder, the cost of such subletting,
including, but not limited to, reasonable attorneys' fees, and any real
estate commissions actually paid, and the cost of such alterations and
repairs incurred by Landlord and the amount, if any, by which the rent
hereunder for the period of such subletting (to the extent such period does
not exceed the term hereof) exceeds the amount to be paid as rent for the
Premises for such period or (ii) at the option of Landlord, rents received
form such subletting shall be applied first to payment of indebtedness other
than rent due hereunder from Tenant to Landlord; second, to the payment of
any costs of such subletting and of such
16.
alterations and repairs; third to payment of rent due and unpaid hereunder;
and the residue, if any, shall be held by Landlord and applied in payment of
future rent as the same becomes due hereunder. If Tenant has been credited
with any rent to be received by such subletting under option (i) and such
rent shall not be promptly paid to Landlord by subtenant(s), or if such
rentals received from such subletting under option (ii) during any month be
less than to be paid during the month by Tenant hereunder. Tenant shall pay
any such deficiency to landlord. Such deficiency shall be calculated and paid
monthly. For all purposes set forth in this subparagraph d, no taking
possession of the Premises by Landlord shall be construed as an election on
its part to terminate this Lease unless a written notice of such intention be
given to Tenant. Notwithstanding any such subletting without termination,
Landlord may at any time hereafter elect to terminate this Lease for such
previous breach.
(e) The right to have a receiver appointed for Tenant upon
application by Landlord, to take possession of the Premises and to apply any
rental collected from the Premises and to exercise all other rights and
remedies granted to Landlord pursuant to subparagraph d above.
23. ABANDONMENT. Tenant shall not vacate or abandon the Premises at any
time during the term of this Lease and if Tenant shall abandon, vacate or
surrender said Premises, or be dispossessed by the process of law, or otherwise,
any personal property belonging to Tenant and left on the Premises shall be
deemed to be abandoned, at the option of Landlord, except such property as may
be mortgaged to Landlord.
24. DESTRUCTION. In the event the Premises are destroyed in whole or in
part from any cause, except for routine maintenance and repairs and incidental
damage and destruction caused by vandalism and accidents for which Tenant is
responsible for under Xxxxxxxxx 00, Xxxxxxxx may, at its option:
(a) Rebuild or restore the Premises to their condition prior
to the damage or destruction, or
(b) Terminate this Lease (providing that the Premises is damaged
to the extent of 33-1/3% of the replacement cost).
If Landlord does not give Tenant notice in writing within thirty (30)
days from the destruction of the Premises of its election to either rebuild or
restore them, or to terminate this Lease, Landlord shall be deemed to have
elected to rebuild or restore them, in which event Landlord agrees, at its
expense, promptly to rebuild or restore the Premises to their condition prior to
the damage or destruction. Tenant shall be entitled to a reduction in rent while
such repair is being made in the proportion that the area of the Premises
rendered untenantable by such damage bears to the total area of the Premises. If
Landlord initially estimates that the rebuilding or restoration will exceed 180
days or if Landlord does not complete the rebuilding or restoration within one
hundred eighty (180) days following the date of destruction (such period of time
to be extended for delays caused by the fault or neglect of Tenant or because of
Acts of God, acts of subcontractors, or delay of the contractors or
subcontractors due to such causes or other contingencies beyond the control of
Landlord), then Tenant shall have the right to
17.
terminate this Lease by giving fifteen (15) days prior written notice to
Landlord. Notwithstanding anything herein to the contrary, Landlord's
obligation to rebuild or restore shall be limited to the building and
interior improvements constructed by Landlord as they existed as of the
commencement date of the Lease and shall not include restoration of Tenant's
trade fixtures, equipment, merchandise, or any improvements, alterations or
additions made by Tenant to the Premises, which Tenant shall forthwith
replace or fully repair at Tenant's sole cost and expense provided this Lease
is not cancelled according to the provisions above.
Unless this Lease is terminated pursuant to the foregoing provisions,
this Lease shall remain in full force and effect. Tenant hereby expressly waives
the provisions of Section 1932, Subdivision 2, in Section 1933, Subdivision 4 of
the California Civil Code.
In the event that the building in which the Premises are situated is
damaged or destroyed to the extent of not less then 33-1/3% of the replacement
cost thereof, Landlord may elect to terminate this Lease, whether the Premises
be injured or not. Notwithstanding anything to the contrary herein, Landlord may
terminate this Lease in the event of an uninsured event or if insurance proceeds
are insufficient to cover 100% of the rebuilding costs net of the deductible.
25. EMINENT DOMAIN. If all or any part of the Premises shall be taken
by any public or quasi-public authority under the power of eminent domain or
conveyance in lieu thereof, this Lease shall terminate as to any portion of the
Premises so taken or conveyed on the date when title vests in the condemnor, and
Landlord shall be entitled to any and all payment, income, rent, award, or any
interest therein whatsoever which may be paid or made in connection with such
taking or conveyance, and Tenant shall have no claim against Landlord or
otherwise for the value of any unexpired term of this Lease. Notwithstanding the
foregoing paragraph, any compensation specifically awarded Tenant for loss of
business, Tenant's personal property, moving cost or loss of goodwill, shall be
and remain the property of Tenant.
If (i) any action or proceeding is commenced for such taking of the
Premises or any part thereof, or if Landlord is advised in writing by any entity
or body having the right or power of condemnation of its intention to condemn
the premises or any portion thereof, or (ii) any foregoing events occur with
respect to the taking of any space in the Complex not leased hereby, or if any
such spaces so taken or conveyed in lieu of such taking and Landlord shall
decide to discontinue to use and operation of the Complex, or decide to
demolish, alter or rebuild the Complex, then, in any such events Landlord shall
have the right to terminate this Lease by giving Tenant written notice thereof
within sixty (60) days of the date of receipt of said written advice, or
commencement of said action or proceeding, or taking conveyance, which
termination shall take place as of the first to occur of the last day of the
calendar month next following the month in which such notice is given or the
date on which title to the Premises shall vest in the condemnor.
In the event of such a partial taking or conveyance of the Premises, if
the portion of the Premises taken or conveyed is so substantial that the Tenant
can no longer reasonably conduct its business, Tenant shall have the privilege
of terminating this Lease within sixty (60) days form the date of such taking or
conveyance, upon written notice to Landlord of its intention so to do,
18.
and upon giving of such notice this Lease shall terminate on the last day of
the calendar month next following the month in which such notice is given,
upon payment by Tenant of the rent from the date of such taking or conveyance
to the date of termination.
If a portion of the Premises be taken by condemnation or conveyance in
lieu thereof and neither Landlord nor Tenant shall terminate this Lease as
provided herein, this Lease shall continue in full force and effect as to the
part of the Premises not so taken or conveyed, and the rent herein shall be
apportioned as of the date of such taking or conveyance so that thereafter the
rent to be paid by Tenant shall be in the ratio that the area of the portion of
the Premises not so taken or conveyed bears to the total area of the Premises
prior to such taking.
26. SALE OR CONVEYANCE BY LANDLORD. In the event of a sale or
conveyance of the Complex or any interest therein, by an owner of the reversion
then constituting Landlord, the transferor shall thereby be released from any
further liability upon any of the terms, covenants or conditions (express or
implied) herein contained in favor of Tenant, and in such event, insofar as such
transfer is concerned. Tenant agrees to look solely to the responsibility of the
successor in interest of such transferor in and to the Complex and this Lease.
This Lease shall not be affected by any such sale or conveyance, and Tenant
agrees to attorn to the successor in interest of such transferor.
27. ATTORNMENT TO LENDER OR THIRD PARTY. In the event the interest of
Landlord in the land and buildings in which the leased Premises are located
(whether such interest of Landlord is a fee title interest or a leasehold
interest) is encumbered by deed of trust, and such interest is acquired by the
lender or any third party through judicial foreclosure or by exercise of a power
of sale at private trustee's foreclosure sale, Tenant hereby agrees to attorn to
the purchaser at any such foreclosure sale and to recognize such purchaser as
the Landlord under this Lease. In the event the lien of the deed of trust
securing the loan from a Lender to Landlord is prior and paramount to the Lease,
this Lease shall nonetheless continue in full force and effect for the remainder
of the unexpired term hereof, at the same rental herein reserved and upon all
the other terms, conditions and covenants herein contained.
28. HOLDING OVER. Any holding over by Tenant after expiration or other
termination of the term of this Lease with the written consent of Landlord
delivered to Tenant shall not constitute a renewal or extension of the Lease or
give Tenant any rights in or to the Leased Premises except as expressly provided
in this Lease. Any holding over after the expiration or other termination of the
term of this Lease, with the consent of Landlord, shall be construed to be a
tenancy from month to month, on the same terms and conditions herein specified
insofar as applicable except that the monthly Basic Rent shall be increased to
an amount equal to one hundred fifty percent (150%) of the monthly Basic Rent
required during the last month of the Lease term.
29. CERTIFICATE OF ESTOPPEL. Tenant shall at any time upon not less
than ten (10) days' prior written notice from Landlord execute, acknowledge and
deliver to Landlord a statement in writing (i) certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modification and certifying that this Lease, as so modified, is
19.
in full force and effect) and the date to which the rent and other charges
are paid in advance, if any, and (ii) acknowledging that there are not, to
Tenant's knowledge, any uncured defaults on the part of Landlord hereunder,
or specifying such defaults, if any, are claimed. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrancer of the
Premises. Tenant's failure to deliver such statement within such time shall
be conclusive upon Tenant that this Lease is in full force and effect,
without modification except as may be represented by Landlord; that there are
no uncured defaults in Landlord's performance, and that not more than one
month's rent has been paid in advance.
30. CONSTRUCTION CHANGES. It is understood that the description of the
Premises and the location of ductwork, plumbing and other facilities therein are
subject to such minor changes as Landlord or Landlord's architect determines to
be desirable in the course of construction of the Premises, and no such changes,
or any changes in plans for any other portions of the Complex shall affect this
Lease or entitle Tenant to any reduction of rent hereunder or results in any
liability of Landlord to Tenant. Landlord does not guarantee the accuracy of any
drawings supplied to Tenant and verification of the accuracy of such drawings
rests with Tenant.
31. RIGHT OF LANDLORD TO PERFORM. All terms, covenants and conditions
of this Lease to be performed or observed by Tenant shall be performed or
observed by Tenant at Tenant's sole cost and expense and without any reduction
of rent. If Tenant shall fail to pay any sum of money, or other rent, required
to be paid by it hereunder and such failure shall continue for five (5) days
after written notice by Landlord, or shall fail to perform any other term or
covenant hereunder on its part to be performed, and such failure shall continue
for thirty (30) days after written notice thereof by Landlord, Landlord, without
waiving or releasing Tenant from any obligation of Tenant hereunder, may, but
shall not be obligated to, make any such payment or perform any such other term
or covenant on Tenant's part to be performed. All sums so paid by Landlord and
all necessary costs of such performance by Landlord together with interest
thereon at the rate of the prime rate of interest per annum as quoted by the
Bank of America from the date of such payment or performance by Landlord, shall
be paid (and Tenant covenants to make such payment) to Landlord on demand by
Landlord, and Landlord shall have (in addition to any other right or remedy of
Landlord) the same rights and remedies in the event of nonpayment by Tenant as
in the case of failure by Tenant in the payment of rent hereunder.
32. ATTORNEYS' FEES.
(a) In the event that either Landlord or Tenant should bring
suit for the possession of the Premises, for the recovery of any sum due
under this Lease, or because of the breach of any provision of this Lease, or
for any other relief against the other party hereunder, then all costs and
expenses, including reasonable attorneys' fees, incurred by the prevailing
party therein shall be paid by the other party, which obligation on the part
of the other party shall be deemed to have accrued on the date of the
commencement of such action and shall be enforceable whether or not the
action is prosecuted to judgement.
20.
(b) Should Landlord be named as a defendant in any suit brought
against Tenant in connection with or arising out of Tenant's occupancy
hereunder, Tenant shall pay to Landlord its costs and expenses incurred in
such suit, including a reasonable attorney's fee.
33. WAIVER. The waiver by either part of the other party's failure to
perform or observe any term, covenant or condition herein contained to be
performed or observed by such waiving party shall not be deemed to be a waiver
of such term, covenant or condition or of any subsequent failure to the party
failing to perform or observe the same or any other such item, covenant or
condition therein contained, and no custom or practice which may develop between
the parties hereto during the term hereof shall be deemed a waiver of, or in any
way affect, the right of either party to insist upon performance and observance
by the other party in strict accordance with the terms hereof.
34. NOTICES. All notices, demands, requests, advices or designations
which may be or are required to be given by either party to the other hereunder
shall be in writing. All notices, demands, requests, advices or designations by
Landlord to Tenant shall be sufficiently given, made or delivered if personally
served on Tenant by leaving the same at the Premises or if sent by United States
certified or registered mail, postage prepaid, addressed to Tenant at the
Premises. All notices, demands, requests, advices or designations by Tenant to
Landlord shall be sent by United States certified or registered mail, postage
prepaid, addressed to Landlord at its offices at Xxxxx/Xxxxxxxxx, 0000 Xxxxxxx
Xxxxxxx Xxxx., Xxxxx 000, Xxxxx Xxxxx, XX 00000. Each notice, request, demand,
advice or designation referred to in this paragraph shall be deemed received on
the date of the personal service or mailing thereof in the manner herein
provided, as the case may be.
35. EXAMINATION OF LEASE. Submission of this instrument for examination
or signature by Tenant does not constitute a reservation of or option for a
lease, and this instrument is not effective as a lease or otherwise until its
execution and delivery by both Landlord and Tenant.
36. DEFAULT BY LANDLORD. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord within a reasonable
time, but in no event earlier than thirty (30) days after written notice by
Tenant to Landlord and to the holder of any first mortgage or deed of trust
covering the Premises whose name and address shall have heretofore been
furnished to Tenant in writing, specifying wherein landlord has failed to
perform such obligations; provided, however, that if the nature of Landlord's
obligations is such that more than thirty (30) days are required for
performance, then Landlord shall not be in default if Landlord commences
performance within such thirty (30) day period and thereafter diligently
prosecutes the same to completion.
37. CORPORATE AUTHORITY. If Tenant is a corporation (or a partnership),
each individual executing this Lease on behalf of said corporation (or
partnership) represents and warrants that he is duly authorized to execute and
deliver this Lease on behalf of said corporation (or partnership) in accordance
with the by-laws of said corporation (or partnership in accordance with the
partnership agreement) and that this Lease is binding upon said corporation (or
21.
partnership) in accordance with its terms if Tenant is a corporation, Tenant
shall, within thirty (30) days after execution of this Lease, deliver to
Landlord a certified copy of the resolution of the Board of Directors of said
corporation authorizing or ratifying the execution of this Lease.
38. LIMITATION OF LIABILITY. In consideration of the benefits accruing
hereunder, Tenant and all successors and assigns covenant and agree that, in the
event of any actual or alleged failure, breach or default hereunder by Landlord:
(i) the sole and exclusive remedy shall be against
Landlord and Landlord's assets;
(ii) no partner of Landlord shall be sued or named as a party
in any suit or action (except as may be necessary to secure jurisdiction of the
partnership);
(iii) no service of process shall be made against any partner
of Landlord (except as may be necessary to secure jurisdiction of the
partnership);
(iv) no partner of Landlord shall be required to answer or
otherwise plead to any service of process;
(v) no judgment will be taken against any partner of
Landlord;
(vi) any judgment taken against any partner of Landlord
may be vacated and set aside at any time without hearing;
(vii) no writ of execution will ever be levied against the
assets of any partner of Landlord;
(viii) these covenants and agreements are enforceable both by
landlord and also by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements shall
be applicable to any covenant or agreement either expressly contained in this
Lease or imposed by statute or at common law.
39. MISCELLANEOUS AND GENERAL PROVISIONS.
(a) Tenant shall not, without the written consent of Landlord,
use the name of the building for any purpose other than as the address of the
business conducted by Tenant in the Premises.
(b) This Lease shall in all respects be governed by and
construed in accordance with the laws of the State of California. If any
provision of this Lease shall be invalid, unenforceable or ineffective for
any reason whatsoever, all other provisions hereof shall be and remain in
full force and effect.
22.
(c) The term "Premises" includes the space leased hereby and
any improvements now or hereafter installed therein or attached thereto. The
term "Landlord" or any pronoun used in place thereof includes the plural as
well as the singular and the successors and assigns of Landlord. The term
"Tenant" or any pronoun used in place thereof includes the plural as well as
the singular and individuals, firms, associations, partnerships and
corporations, and their and each of their respective heirs, executors,
administrators, successors and permitted assigns, according to the context
hereof, and the provisions of this Lease shall inure to the benefit of and
bind such heirs, executors, administrators, successors and permitted assigns.
The term "person" includes the plural as well as the singular and
individuals, firms, associations, partnerships and corporations. Words used in
any gender include other genders. If there be more than one Tenant the
obligations of Tenant hereunder are joint and several. The paragraph headings of
this Lease are for convenience of reference only and shall have no effect upon
the construction of any provision hereof.
(d) Time is of the essence of this Lease and of each and all of
its provisions.
(e) At the expiration or earlier termination of this Lease,
Tenant shall execute, acknowledge and deliver to Landlord, within ten (10)
days after written demand from Landlord to Tenant, any quitclaim deed or
other document required by any reputable title company, licensed to operate
in the State of California, to remove the cloud or encumbrance created by
this Lease from the real property of which Tenant's Premises are a part.
(f) This instrument along with any exhibits and attachments
hereto constitutes the entire agreement between Landlord and Tenant relative
to the Premises and this agreement and the exhibits and attachments may be
altered, amended or revoked only by an instrument in writing signed by both
Landlord and Tenant. Landlord and Tenant agree hereby that all prior or
contemporaneous oral agreements between and among themselves and their agents
or representatives relative to the leasing of the Premises are merged in or
revoked by this agreement.
(g) Neither Landlord nor Tenant shall record this Lease or a
short form memorandum hereof without the consent of the other.
(h) Tenant further agrees to execute any amendments required by
a lender to enable Landlord to obtain financing, so long as Tenant's rights
hereunder are not substantially affected.
(i) Paragraphs 43 through 55 are added hereto and are included
as a part of this lease.
(j) Clauses, plats and riders, if any, signed by Landlord and
Tenant and endorsed on or affixed to this Lease are a part hereof.
(k) Tenant covenants and agrees that no diminution or shutting
off of light, air or view by any structure which may be hereafter erected
(whether or not by landlord) shall in any
23.
way affect his Lease, entitle Tenant to any reduction of rent hereunder or
result in any liability of Landlord to Tenant.
41. BROKERS. Tenant warrants that it had dealings with only the
following real estate brokers or agents in connection with the negotiation of
this Lease: none; and that it knows of no other real estate broker or agent who
is entitled to a commission in connection with this Lease.
42. SIGNS. No sign, placard, picture, advertisement, name or notice
shall be inscribed, displayed or printed or affixed on or to any part of the
outside of the Premises or any exterior windows of the Premises without the
written consent of Landlord first had and obtained and Landlord shall have the
right to remove any such sign, placard, picture, advertisement, name or notice
without notice to and at the expense of Tenant. If Tenant is allowed to print or
affix or in any way place a sign in, on, or about the Premises, upon expiration
or other sooner termination of this Lease, Tenant at Tenant's sole cost and
expense shall both remove such sign and repair all damage in such a manner as to
restore all aspects of the appearance of the Premises to the condition prior to
the placement of said sign.
All approved signs or lettering on outside of doors shall be printed,
painted, affixed or inscribed at the expense of Tenant by a person approved of
by Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door partition or wall which may appear unsightly from
outside the Premises.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered
this Lease as of the day and year first above written.
LANDLORD: TENANT:
XXXX XXXXXXXXX SEPARATE PROPERTY TRUST QUANTUM EFFECT DESIGN, INC.,
a California corporation
By: \s\ Xxxx Xxxxxxxxx By: \s\ Xxxx X. Xxxxx
------------------------------ ----------------------------
Xxxx Xxxxxxxxx, Trustee Xxxx X. Xxxxx, Director, Human
Resources
Date: 1/26/99 Date: 1-20-99
------------------------------ ----------------------------
XXXXXXX X. XXXXX SEPARATE PROPERTY TRUST
By: \s\ Xxxxxxx X. Xxxxx
------------------------------
Xxxxxxx X. Xxxxx, Trustee
Date: 1/26/99
------------------------------
24.
Paragraphs 43 through 55 to Lease Agreement dated December 3, 1998, By and
Between the Xxxx Xxxxxxxxx Survivor's Trust and the Xxxxxxx X. Xxxxx Separate
Property Trust, as Landlord, and QUANTUM EFFECT DESIGN, INC., a California
corporation, as Tenant for 5,189+/- Square Feet of Space Located at 0000-0 Xxxxx
Xxxx., Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx.
43. BASIC RENT. In accordance with Paragraph 4(A) herein, the total
aggregate sum of THREE HUNDRED TWELVE THOUSAND THREE HUNDRED SEVENTY SEVEN AND
80/100 DOLLARS ($312,377.80), shall be payable as follows:
On February 1, 1999, the sum of TEN THOUSAND THREE HUNDRED
SEVENTY EIGHT AND NO/100 DOLLARS ($10,378.00) shall be due, and a like sum due
on the first day of each month thereafter, through and including January 1,
2000.
On February 1, 2000, the sum of TEN THOUSAND EIGHT HUNDRED
NINETY SIX AND 90/100 DOLLARS ($10,896.90) shall be due, and a like sum due on
the first day of each month thereafter, through and including January 1, 2001.
On February 1, 2001, the sum of ELEVEN THOUSAND FOUR HUNDRED
FIFTEEN AND 80/100 DOLLARS ($11,415.80) shall be due, and a like sum due on the
first day of each month thereafter, through and including June 1, 2001; or until
the entire aggregate sum of THREE HUNDRED TWELVE THOUSAND THREE HUNDRED SEVENTY
SEVEN AND 80/100 DOLLARS ($312,377.80) has been paid.
44. "AS-IS" BASIS. It is hereby agreed that the Premises leased
hereunder is leased strictly on an "as-is" basis and in its present condition,
and in the configuration as shown on Exhibit B attached hereto, and by reference
made a part hereof. It is specifically agreed between the parties that Landlord
shall not be required to make, nor be responsible for any cost, in connection
with any repair, restoration, and/or improvement to the Premises in order for
this Lease to commence, or thereafter, throughout the Term of this Lease.
Notwithstanding anything to the contrary within this Lease, Landlord makes no
warranty or representation of any kind or nature whatsoever as to the condition
or repair of the Premises, nor as to the use or occupancy which may be made
thereof.
45. CONSENT. Whenever the consent of one party to the other is required
hereunder, such consent shall not be unreasonably withheld.
46. CHOICE OF LAW; SEVERABILITY. This Lease shall in all respects be
governed by and construed in accordance with the laws of the State of
California. If any provisions of this Lease shall be invalid, unenforceable, or
ineffective for any reason whatsoever, all other provisions hereof shall be and
remain in full force and effect.
47. AUTHORITY TO EXECUTE. The parties executing this Lease Agreement
hereby warrant and represent that they are properly authorized to execute this
Lease Agreement and bind the parties on behalf of whom they execute this Lease
Agreement and to all of the terms, covenants and conditions of this Lease
Agreement as they relate to the respective parties hereto.
25.
48. ASSESSMENT CREDITS. The demised property herein may be subject to a
special assessment levied by the City of Santa Xxxxx as part of an Improvement
District. As a part of said special assessment proceedings (if any), additional
bonds were or may be sold and assessments were or may be levied to provide for
construction contingencies and reserve funds. Interest shall be earned on such
funds created for contingencies and on reserve funds which will be credited for
the benefit of said assessment district. To the extent surpluses are created in
said district through unused contingency funds, interest earnings or reserve
funds, such surpluses shall be deemed the property of Landlord. Notwithstanding
that such surpluses may be credited on assessments otherwise due against the
Leased Premises, Tenant shall pay to Landlord, as additional rent if, and at the
time of any such credit of surpluses, an amount equal to all such surpluses so
credited. For example: if (i) the property is subject to an annual assessment of
$1,000.00, and (ii) a surplus of $200.00 is credited towards the current year's
assessment which reduces the assessment amount shown on the property tax xxxx
from $1,000.00 to $800.00, Tenant shall, upon receipt of notice from Landlord,
pay to Landlord said $200.00 credit as Additional Rent.
49. ASSIGNMENT AND SUBLETTING (CONTINUED).
A. Notwithstanding the foregoing, Landlord and Tenant agree
that it shall not be unreasonable for Landlord to refuse to consent to a
proposed assignment, sublease or other transfer ("Proposed Transfer") if the
Premises or any other portion of the Property would become subject to
additional or different Government Requirements as a direct or indirect
consequence of the Proposed Transfer and/or the Proposed Transferee's use and
occupancy of the Premises and the Property. However, Landlord may, in its
sole discretion, consent to such a Proposed Transfer where Landlord is
indemnified by Tenant and (i) Subtenant or (ii) Assignee, in form and
substance satisfactory to Landlord's counsel, by Tenant and/or the Proposed
Transferee from and against any and all costs, expenses, obligations and
liability arising out of the Proposed Transfer and/or the Proposed
Transferee's use and occupancy of the Premises and the Property.
B. Any and all sublease agreement(s) between Tenant and any and
all subtenant(s) (which agreements must be consented to by Landlord, pursuant
to the requirements of this Lease) shall contain the following language:
"If Landlord and Tenant jointly and voluntarily elect, for any reason
whatsoever, to terminate the Master Lease prior to the scheduled Master Lease
termination date, then this Sublease (if then still in effect) shall terminate
concurrently with the termination of the Master Lease. Subtenant expressly
acknowledges and agrees that (1) the voluntary termination of the Master Lease
by Landlord and Tenant and the resulting termination of this Sublease shall not
give Subtenant any right or power to make any legal or equitable claim against
Landlord, including without limitation any claim for interference with contract
or interference with prospective economic advantage, and (2) Subtenant hereby
waives any and all rights it may have under law or at equity against Landlord to
challenge such an early termination of the Sublease, and unconditionally
releases and relieves Landlord, and its officers, directors, employees and
agents, from any and all claims, demands, and/or causes of action whatsoever
(collectively, "Claims"), whether such matters are known or unknown, latent or
apparent, suspected or
26.
unsuspected, foreseeable or unforeseeable, which Subtenant may have arising
out of or in connection with any such early termination of this Sublease.
Subtenant knowingly and intentionally waives any and all protection which is
or may be given by Section 1542 of the California Civil Code which provides
as follows: "A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his settlement
with debtor.
The term of this Sublease is therefore subject to early termination.
Subtenant's initials here below evidence (a) Subtenant's consideration of and
agreement to this early termination provision, (b) Subtenant's acknowledgment
that, in determining the net benefits to be derived by Subtenant under the terms
of this Sublease, Subtenant has anticipated the potential for early termination,
and (c) Subtenant's agreement to the general waiver and release of Claims above.
Initials: Initials:
---------------------- ---------------------
Subtenant Tenant
50. BANKRUPTCY AND DEFAULT. Paragraph 22 is modified to provide that
with respect to non-monetary defaults not involving Tenant's failure to pay
Basic Rent or Additional Rent, Tenant shall not be in default of any
non-monetary obligation if (i) more than thirty (30) days is required to cure
such non-monetary default, and (ii) Tenant commences cure of such default as
soon as reasonably practicable after receiving written notice of such default
from Landlord and thereafter continuously and with due diligence prosecutes such
cure to completion.
51. ABANDONMENT. Paragraph 23 is modified to provide that Tenant shall
not be in default under the Lease if it leaves all or any part of Premises
vacant so long as (i) Tenant is performing all of its other obligations under
the Lease including the obligation to pay Basic Rent and Additional Rent, (ii)
Tenant provides on-site security during normal business hours for those parts of
the Premises left vacant, (iii) such vacancy does not materially and adversely
affect the validity or coverage of any policy of insurance carried by Landlord
with respect to the Premises, and (iv) the utilities and bearing and ventilation
system are operated and maintained to the extent necessary to prevent damage to
the Premises or its systems.
52. HAZARDOUS MATERIALS. Landlord and Tenant agree as follows with
respect to the existence or use of "Hazardous Materials" (as defined herein) on,
in, under or about the Premises and real property located beneath said Premises
and the common areas of the Complex (hereinafter collectively referred to as the
"Property"):
A. As used herein, the term "Hazardous Materials" shall mean
any material, waste, chemical, mixture or byproduct which is or hereafter is
defined, listed or designated under Environmental Laws (defined below) as a
pollutant, or as a contaminant, or as a toxic or hazardous substance, waste
or material, or any other unwholesome, hazardous, toxic, biohazardous, or
radioactive material, waste, chemical, mixture or byproduct, or which is
listed, regulated or restricted by any Environmental Law (including, without
limitation, petroleum hydrocarbons or any distillates or derivatives or
fractions thereof, polychlorinated biphenyls, or asbestos). As used herein,
the term "Environmental Laws" shall mean any applicable Federal,
27.
State of California or local government law (including common law), statute,
regulation, rule, ordinance, permit, license, order, requirement, agreement,
or approval, or any determination, judgment, directive, or order of any
executive or judicial authority at any level of Federal, State of California
or local government (whether now existing or subsequently adopted or
promulgated) relating to pollution or the protection of the environment,
ecology, natural resources, or public health and safety.
B. Tenant shall obtain Landlord's written consent, which may be
withheld in Landlord's discretion, prior to the occurrence of any Tenant's
Hazardous Materials Activities (defined below); provided, however, that
Landlord's consent shall not be required for normal use in compliance with
applicable Environmental Laws of customary household and office supplies
(Tenant shall first provide Landlord with a list of said materials use), such
as mild cleaners, lubricants and copier toner. As used herein, the term
"Tenant's Hazardous Materials Activities" shall mean any and all use,
handling, generation, storage, disposal, treatment, transportation, release,
discharge, or emission of any Hazardous Materials on, in, beneath, to, from,
at or about the Property, in connection with Tenant's use of the Property, or
by Tenant or by any of Tenant's agents, employees, contractors, vendors,
invitees, visitors or its future subtenants or assignees. Tenant agrees that
any and all Tenant's Hazardous Materials Activities shall be conducted in
strict, full compliance with applicable Environmental Laws at Tenant's
expense, and shall not result in any contamination of the Property or the
environment. Tenant agrees to provide Landlord with prompt written notice of
any spill or release of Hazardous Materials at the Property during the term
of the Lease of which Tenant becomes aware, and further agrees to provide
Landlord with prompt written notice of any violation of Environmental Laws in
connection with Tenant's Hazardous Materials Activities of which Tenant
becomes aware. If Tenant's Hazardous Materials Activities involve Hazardous
Materials other than normal use of customary household and office supplies,
Tenant also agrees at Tenant's expense: (i) to install such Hazardous
Materials monitoring, storage and containment devices as Landlord reasonably
deems necessary (Landlord shall have no obligation to evaluate the need for
any such installation or to require any such installation); (ii) provide
Landlord with a written inventory of such Hazardous Materials, including an
update of same each year upon the anniversary date of the Commencement Date
of the Lease ("Anniversary Date"); and (iii) on each Anniversary Date, to
retain a qualified environmental consultant, acceptable to Landlord, to
evaluate whether Tenant is in compliance with all applicable Environmental
Laws with respect to Tenant's Hazardous Materials Activities. Tenant, at its
expense, shall submit to Landlord a report from such environmental consultant
which discusses the environmental consultant's findings within two (2) months
of each Anniversary Date. Tenant, at its expense, shall promptly undertake
and complete any and all steps necessary, and in full compliance with
applicable Environmental Laws, to fully correct any and all problems or
deficiencies identified by the environmental consultant, and promptly provide
Landlord with documentation of all such corrections.
C. Prior to termination or expiration of the Lease, Tenant, at
its expense, shall (i) properly remove from the Property all Hazardous
Materials which come to be located at the Property in connection with
Tenant's Hazardous Materials Activities, and (ii) fully comply with and
complete all facility closure requirements of applicable Environmental Laws
regarding Tenant's Hazardous Materials Activities, including but not limited
to (x) properly restoring and
28.
repairing the Property to the extent damaged by such closure activities, and
(y) obtaining from the local Fire Department or other appropriate
governmental authority with jurisdiction a written concurrence that closure
has been completed in compliance with applicable Environmental Laws. Tenant
shall promptly provide Landlord with copies of any claims, notices, work
plans, data and reports prepared, received or submitted in connection with
any such closure activities.
D. If Landlord, in its sole discretion, believes that the
Property has become contaminated as a result of Tenant's Hazardous Materials
Activities, Landlord in addition to any other rights it may have under this
Lease or under Environmental Laws or other laws, may enter upon the Property
and conduct inspection, sampling and analysis, including but not limited to
obtaining and analyzing samples of soil and groundwater, for the purpose of
determining the nature and extent of such contamination. Tenant shall
promptly reimburse Landlord for the costs of such an investigation, including
but not limited to reasonable attorneys' fees Landlord incurs with respect to
such investigation, that discloses Hazardous Materials contamination for
which Tenant is liable under this Lease. Notwithstanding the above, Landlord
may, at its option and in its sole and absolute discretion, choose to perform
remediation and obtain reimbursement for cleanup costs as set forth herein
from Tenant. Any cleanup costs incurred by Landlord as the result of Tenant's
Hazardous Materials Activities shall be reimbursed by Tenant within thirty
(30) days of presentation of written documentation of the expense to Tenant
by Landlord. Such reimbursable costs shall include, but not be limited to,
any reasonable consultant and attorney fees incurred by Landlord. Tenant
shall take all actions necessary to preserve any claims it has against third
parties, including, but not limited to, its insurers, for claims related to
its operation, management of Hazardous Materials or contamination of the
Property. Except as may be required of Tenant by applicable Environmental
Laws, Tenant shall not perform any sampling, testing, or drilling to identify
the presence of any Hazardous Materials at the Property, without Landlord's
prior written consent which may be withheld in Landlord's discretion. Tenant
shall promptly provide Landlord with copies of any claims, notices, work
plans, data and reports prepared, received or submitted in connection with
any sampling, testing or drilling performed pursuant to the preceding
sentence.
E. Tenant shall indemnify, defend (with legal counsel
acceptable to Landlord, whose consent shall not unreasonably be withheld) and
hold harmless Landlord, its employee, assigns, successors,
successors-in-interest, agents and representatives from and against any and
all claims (including but not limited to third party claims from a private
party or a government authority), liabilities, obligations, losses, causes of
action, demands, governmental proceedings or directives, fines, penalties,
expenses, costs (including but not limited to reasonable attorneys',
consultants' and other experts' fees and costs), and damages, which arise
from or relate to: (i) Tenant's Hazardous Materials Activities; (ii) any
Hazardous Materials contamination caused by Tenant prior to the Commencement
Date of the Lease; or (iii) the breach of any obligation of Tenant under this
Paragraph 52 (collectively, "Tenant's Environmental Indemnification").
Tenant's Environmental Indemnification shall include but is not limited to
the obligation to promptly and fully reimburse Landlord for losses in or
reductions to rental income, and diminution in fair market value of the
Property. Tenant's Environmental Indemnification shall further include but is
not limited to the obligation to diligently and properly implement to
completion, at Tenant's expense, any and all environmental investigation,
removal, remediation,
29.
monitoring, reporting, closure activities, or other environmental response
action (collectively, "Response Actions"). Tenant shall promptly provide
Landlord with copies of any claims, notices, work plans, data and reports
prepared, received or submitted in connection with any Response Actions.
It is agreed that the Tenant's responsibilities related to Hazardous Materials
will survive the expiration or termination of this Lease and that Landlord may
obtain specific performance of Tenant's responsibilities under this Paragraph
52.
53. LEASE TERMS CO-TERMINOUS. It is acknowledged that (i) concurrently
with the execution of this Lease, Landlord and Tenant are also executing
Amendment No. 2 dated December 3, 1998 to Lease Agreement dated September 14,
1994 (hereinafter referred to as the "Existing Lease") affecting adjacent
property and (ii) it is the intention of the parties that the Term of this Lease
be coterminous with the Term of the Existing Leases such that the terms of both
leases expire on the same date; provided, however, the termination of this Lease
resulting from the terms and conditions stated under Paragraph 22 "Bankruptcy
and Default" (subject to Landlord's option as stated in the respective leases'
"Cross Default" Paragraph) or Paragraph 24 "Destruction" or Paragraph 25
"Eminent Domain" shall not result in a termination of the Existing Lease, unless
Landlord elects, at its sole and absolute discretion, to terminate the Existing
Lease.
54. CROSS DEFAULT. As a material part of the consideration for the
execution of this Lease by Landlord, it is agreed between Landlord and Tenant
that a default under this Lease, or a default under the Existing Lease may, at
the option of Landlord, be considered a default under both leases, in which
event Landlord shall be entitled (but in no event required) to apply all rights
and remedies of Landlord under the terms of one lease to both leases including,
but not limited to, the right to terminate one or both of said leases by reason
of a default under said Existing Lease or hereunder.
55. LEASE CONTINGENT UPON LANDLORD OBTAINING TERMINATION AGREEMENT WITH
CURRENT TENANT. This Lease is subject to and conditional upon Landlord obtaining
from Circuit City Stores, Inc. ("Circuit City"), the current tenant occupying
the Premises leased hereunder, a Termination Agreement satisfactory, to Landlord
on or before January 31, 1999. In the event Landlord is unable to obtain said
satisfactory Termination Agreement on or before January 31, 1999, this Lease
Agreement shall, at Landlord's option (a) be rescinded, or (b) the Commencement
Date hereof shall be modified to reflect the date Landlord so obtains said
satisfactory Termination Agreement and receives possession of the Premises
hereunder free and clear of Circuit City's occupancy; provided, however, that
said period of delay caused by Circuit City shall not extend beyond March 31,
1999. In the event this Lease does not commence by April 1, 1999 (subject only
to the delays covered in Paragraph 3) this Lease shall be automatically
rescinded.
30.
[SITE PLAN]
31.
[FIRST FLOOR PLAN]
AMENDMENT NO. 1
TO LEASE
THIS AMENDMENT NO. 1 is made and entered into this 16th day of
August, 1999, by and been XXXX XXXXXXXXX, Trustee, or his Successor Trustee
UTA dated 7/20/77 (XXXX XXXXXXXXX SURVIVOR'S TRUST) as amended, and XXXXXXX
X. XXXXX, Trustee, or his Successor Trustee UTA dated 7/20/77 (XXXXXXX X.
XXXXX SEPARATE PROPERTY TRUST) as amended, collectively as LANDLORD, and
QUANTUM EFFECT DESIGN, INC., a California corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated December 3, 1998 Landlord
leased to Tenant approximately 5,189+/- square feet of that certain 22,500+/-
square foot building located at 0000-0 Xxxxx Xxxx., Xxxxx 000, Xxxxx Xxxxx,
Xxxxxxxxxx, the details of which are more particularly set forth in said
December 3, 1998 Lease Agreement, and
B. WHEREAS, said Lease was amended by the Commencement Letter
dated February 5, 1999 which confirmed the February 1, 1999 Lease
Commencement Date and the June 30, 2001 Lease Termination Date, and,
C. WHEREAS it is now the desire of the parties hereto to amend the
Lease by (i) terminating said Lease effective October 31, 1999 and (ii)
amending the Aggregate Rent of said Lease Agreement as hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is
hereby acknowledged, and in consideration of the hereinafter mutual promises,
the parties hereto do agree as follows:
1. TERMINATION OF LEASE: As an accommodation to Tenant, Landlord
has agreed to the early termination of said Lease Agreement effective October
31, 1999, subject to Paragraph 2 below and the terms and conditions stated
herein. Tenant shall be responsible for relinquishing the Premises in the
condition required under Lease Paragraph 8 ("Acceptance and Surrender of
Premises") and Lease paragraph 9 ("Alterations and Additions"). Prior to
Lease Termination, Landlord and Tenant shall conduct a joint inspection of
the Premises to determine the extent of the work required by Tenant to comply
with the provisions of said Paragraphs 8 and 9 ("Restoration Work"). In lieu
of Tenant completing the required Restoration Work, Tenant agrees to pay to
Landlord a fee equal to the total of the estimates received from Landlord's
contractors for the Restoration Work ("Restoration Fee"). Said Restoration
Fee shall be paid by Tenant to Landlord within ten days after Tenant receives
Landlord's statement of said Restoration Fee. Tenant shall be responsible for
paying all Basic Rent and Additional Rent and fulfilling all Lease
obligations as contained in said Lease through the date of termination.
Notwithstanding the above, Tenant's obligations as stated in Lease Paragraphs
12 ("Taxes"), 17 ("Compliance") and 52 ("Hazardous Materials") shall survive
the Termination Date of this Lease.
2. EARLY TERMINATION OF LEASE CONTINGENT UPON LANDLORD OBTAINING
AN AGREEMENT WITH TENANT TO LEASE OTHER PREMISES: Landlord's agreement to
allow the early termination of Tenant's Lease is subject to and conditional
upon Landlord obtaining an executed agreement from Tenant to lease space
located at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx (the "New
Premises Lease") commencing the day following the early Termination Date of
Tenant's Lease. In the event Landlord is unable to obtain the executed New
Premises Lease with Tenant on or before October 31, 1999 and/or in the event
said New Premises Lease does not commence on November 1, 1999, the
Termination Date of this Lease shall be modified to reflect the date Landlord
so obtains the executed New Premises Lease and said New Premises Lease
commences. In the event Landlord does not obtain the executed New Premises
Lease with Tenant, this Lease shall continue in full force and effect through
the scheduled Lease Termination Date of June 30, 2001 and this Amendment No.
1 shall be automatically rescinded. In no event, shall Tenant's termination
date exceed the original Termination Date of (provided Tenant fully complies
with the terms and conditions in Paragraph 8, "Acceptance and Surrender of
Premises", of the Lease Agreement).
33.
3. AGGREGATE RENT: The Aggregate Basic Rent for the Lease shall be
decreased by $218,975.80 or from $312,377.80 to $93,402.00.
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and
conditions of said December 3, 1998 Lease Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this
Amendment No. 1 to Lease as of the day and year last written below.
LANDLORD: TENANT:
XXXX XXXXXXXXX SURVIVOR'S TRUST QUANTUM EFFECT DESIGN, INC.
a California corporation
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxx X. Xxxxx
------------------------------------ -----------------------------
Xxxx Xxxxxxxxx, Trustee Xxxx X. Xxxxx, Director,
Human Resources
Date: 8/30/99 XX Xxxxx
------------------------------------ ---------------------------------
Print or Type Name
Title: Director, HR
---------------------------
Date: 8/25/99
---------------------------
XXXXXXX X. XXXXX SEPARATE PROPERTY TRUST
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx, Trustee
Date: 8/26/99
------------------------------------
34.
