EXHIBIT 10.17
OFFICE LEASE
THIS LEASE is made on the 17th day of April, 1992, by and between 0000
Xxxxxxx Xxxxx Xxxxxxxxx Joint Venture, (hereinafter called "Landlord") and
Stellar Corporation, a California corporation, d/b/a Xxxxxxxx Personnel Services
(hereinafter called "Tenant").
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES
AGREE AS FOLLOWS:
1. Premises. Landlord leases to Tenant and Tenant leases from Landlord, upon
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the terms and conditions herein set forth, those certain Premises
("Premises") situated at 0000 Xxxxxxx Xxxxx Xxxxxxxxx, in the City of San
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Xxxx, County of Santa Clara, California (the "Project") as outlined in
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Exhibit "A", attached hereto and described as follows: Xxxxx 000 containing
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approximately 5094 net rentable square feet of office space on the 3rd
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floor (approximately 4,548 usable square feet plus a twelve percent (12%)
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load). The Building of which the Premises is a part contains approximately
84,812 net rentable square feet. Landlord shall, within ten (10) days after
full execution of this Lease, deliver to Tenant an architect's certificate
verifying the useable square footage in the Premises. The term Project
shall mean and include the parking lot and all other common areas located
on the Project which Tenant shall have the right to use in common with all
other Tenants of the Project.
2. Term.
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A. Commencement Date: The term of this Lease shall commence on June 1,
1992 or five (5) days after Landlord notifies Tenant of "substantial
completion" of Tenant's improvements whichever event first occurs. The
term "substantial completion" shall be deemed to have occurred once
(a) the Tenant improvements have been completed, except for minor
punchlist items which, by their omission or installation would not
materially interfere with the conduct of Tenant's business, and (b)
all signoffs in connection with governmental approvals for the Tenant
improvements have been obtained to permit immediate occupancy of the
Premises.
B. Termination Date: The term of the Lease shall end thirty-nine (39)
months from the Commencement Date, unless sooner terminated pursuant
to any provision hereof.
3. Rent.
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A. Basic Rent. Tenant shall pay to Landlord Basic Rent for the Premises
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in the amounts set forth below per month in lawful money of the
United States of America. Rent shall be paid without deduction or
offset, prior notice, abatement,
or demand, at such place as may be designated from time to time by
Landlord as follows:
Rent Schedule: Months 01-03: No rent - Early Occupancy Period
Months 04-21: $7,895.70 Rent for the fourth month of the Lease Terms
shall be due and payable by Tenant upon execution of this Lease by
Tenant.
Months 22-39: $8,150.40
Total Payments: $288,829.80
Tenant's obligation to pay Rent shall commence on the Commencement
Date of this Lease and Rent shall be paid in advance on the
Commencement Date and on the first (1st) day of each succeeding
calendar month until the end of the term. Rent for any period during
the term hereof which is for less than one (1) full month shall be a
pro-rata portion of the monthly Rent payment. Tenant acknowledges
that late payment by Tenant to Landlord of Rent or any other payment
due Landlord will cause Landlord to incur costs not contemplated by
this Lease, the exact amount of such costs being extremely difficult
and impracticable to fix. Such costs include, without limitation,
processing and accounting charges, and late charges that may be
imposed on Landlord by the terms of any encumbrance and note secured
by any encumbrance covering the Premises. Therefore, if any
installment of Rent or other payment due from Tenant is not received
by Landlord within seven (7) days following written notice that the
rent is due and payable, Tenant shall pay to Landlord, in addition to
the Rent due and in addition to interest thereon as provided in
Paragraph 14, an additional sum of five percent (5%) of the overdue
amount as a late charge. The parties agree that this late charge and
interest represents a fair and reasonable estimate of the costs that
Landlord will incur by reason of late payment by Tenant. Acceptance
of any late charge shall not constitute a waiver of Tenant's default
with respect to the overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies available to
Landlord.
B. Additional Rent; Increases in Operating Expenses and Taxes. For
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purposes of this Lease, the parties agree to the following:
(a) "Base Operating Expenses and Taxes" shall be the amount of actual
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operating expenses for calendar year 1992, adjusted to reflect
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95% of full occupancy for the Building for the full 1992 calendar
year.
(b) Tenant's proportionate share of Operating Expenses and Taxes is
agreed to be 6.0%.
(c) "Operating Expenses shall mean all direct costs of operating,
maintaining and managing the Building and Property (including
parking areas)
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including, but not limited to, all charges paid or expenses
incurred by Landlord for repairs, maintenance, utilities, water,
capital improvements required to meet changed government
regulations as a result of Tenant's particular use of the
Premises, cleaning and janitorial services, security services,
modifications or additional capital improvements or replacement
of existing building systems or equipment to reduce the Operating
Expenses which shall be amortized at the prime rate of interest
of Bank of America, N.A. plus two percent (2%) over the useful
life of the improvement or equipment and included in Operating
Expenses (to the extent of the cost savings realized) and
replacement of capital improvements or building sewer equipment
existing as of the Commencement Date when required because of
normal wear and tear, maintenance of landscaping (including
necessary plant replacements), glazing, plumbing systems,
electrical systems, a fitness center, heating and air
conditioning systems, automatic fire extinguishing systems,
conference centers, roofs, down spouts, elevators, common area
interiors, ceilings, Building exterior and common area doors,
rubbish removal, property and liability insurance, licenses,
permits and inspections, reasonable legal expenses (excluding
legal fees associated with collecting past due rent from tenants
in the Building or negotiating leases with tenants in the
Building) and property management fees, costs and expenses
payable to parties not affiliated with Landlord for maintaining
and operating a management or tenant relations office in the
Building not greater than one hundred (100) rentable square feet
in size, and the reasonable cost of contesting the validity or
applicability of any government enactments that may affect
Operating Expenses.
(d) "Taxes" shall mean all Real Property Taxes as hereafter defined
in Paragraph 6 and all other taxes which are paid by Landlord and
reimbursed by Tenant under this Lease.
If the aggregate Operating Expenses and Taxes for the 1993 Calendar
Year adjusted to reflect 95% of full occupancy for the Building and
each calendar year thereafter during the Lease term, exceeds the Base
Operating Expenses and Taxes, Tenant shall pay Landlord, as Additional
Rent, Tenant's proportionate share of this increase ("Increase'). In
no event shall Landlord be liable to Tenant or will Rent be reduced
based on the decreased cost of Operating Expenses and Taxes in
relation to Base Operating Expenses and Taxes.
Tenant's proportionate share of Increases in Operating Expenses and
Taxes shall be Additional Rent and shall be paid to Landlord, except
as otherwise provided in this Lease, as follows: prior to the
commencement of each calendar year or within a reasonable period
thereafter, Landlord shall estimate, in advance, Tenant's
proportionate share of such Increase for the following calendar year
and Landlord shall notify Tenant of such estimate in writing.
Commencing on the first day of
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the first month of the calendar year for which Landlord has notified
Tenant of the estimated Increase, and on the first day of every month
thereafter in such year, Tenant shall pay to Landlord, as Additional
Rent, one-twelfth (1/12th) of the Tenant's estimated proportionate
share of the yearly Increase. Within ninety (90) days of the end of
each calendar year for which Tenant has made estimated payments,
Landlord shall furnish Tenant a statement with respect to such year,
showing actual charges for the past calendar year and the total
payments made by Tenant on the basis of Landlord's estimate. Upon
request by Tenant to Landlord, Landlord shall allow Tenant to review
Landlord's records with respect to Operating Expenses at all
reasonable times. If Tenant's actual proportionate share of the
Increase exceeds the payments made by Tenant based on Landlord's
estimate, Tenant shall pay the deficiency to Landlord within ten (10)
days of Tenant's receipt of Landlord's statement. If the total
payments by Tenant based on Landlord's estimate exceeds Tenant's
actual proportionate share of the Increase, Tenant's excess payment
shall be credited toward future payments by Tenant of Basic Rent or
Additional Rent or refunded to Tenant within ten (10) days of
Landlord's statement to Tenant if no future Basic Rent or Additional
Rent is, in Landlord's judgment, to become due. All Lease provisions
with respect to late charges and interest on unpaid Rent shall be
applicable to Additional Rent, as well as to Basic Rent and all other
monetary amounts due from Tenant under this Lease.
C. Monetary Obligations as Rent. All monetary amounts payable by Tenant
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to Landlord under this Lease including but not limited to Basic and
Additional Rent, Security Deposit, and amounts paid by Landlord to
cure Tenant's default(s) shall be deemed "Rent" hereunder.
D. Operating Expense Exclusions and Limitations. Notwithstanding anything
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to the contrary in this Lease, Operating Expenses shall not include,
and Tenant shall have no liability for, the following expense items:
(a) the construction costs, purchase price or depreciation of the
Property, Building and Premises, and any additions thereto or
expansions thereof, including, without limitation, the cost of
tools, equipment and material purchased in connection therewith,
and the cost to repair defects therein.
(b) costs incurred for the repair, maintenance or replacement of the
structural components of the Property, Building or Premises,
including, without limitation, beams, columns, foundations,
footings, structural slabs and the roof.
(c) coats incurred for the repair, maintenance or replacement of the
Property, Building or Premises, or any portion, to the extent of:
(a) the proceeds of insurance which Landlord is required to
maintain under the Lease or actually maintains (whichever is
greater), including any deductibles which
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exceed $25,000 and self-insured amounts, unless such costs are
attributable to Tenant's or Tenant's guests', employees',
agents'), or invitees' negligence or willful misconduct, (b) any
reimbursement which Landlord is entitled to receive therefor
under any warranties or from any third party (other than on
account of a lessee's proportionate share of Operating Expenses),
or (c) the negligence or willful misconduct of Landlord or its
agents, employees, contractors or invitees.
(d) rentals and related expenses incurred in leasing air conditioning
systems, elevators or other equipment that may be classified as
capital expenditures under generally accepted accounting
principles, except for rentals and related expenses incurred in
connection with the rental of such equipment in order to make
repairs or keep permanent systems in operation while repairs are
being made, and except for the rental of equipment that is not
affixed to the Property and which is used in the maintenance or
repair of the Property or Building or the provision of other
services required to be furnished by Landlord under this Lease.
(e) rentals and other payments by Landlord under any ground lease or
other lease underlying this Lease, and interest, principal,
points and fees on debt or amortization of any deed of trust,
mortgage or other debt instrument encumbering all or any portion
of the Property or Building.
(f) expenses and penalties (including, without limitation, attorneys
fees) incurred due to Landlords violation of (a) any lease of
premises, or (b) any deed of trust, mortgage or ground lease, or
(c) any law, rule, regulation, code, permit or private
restriction, in each case, affecting or applicable to the
Property, the Building or any portion thereof.
(g) leasing commissions, attorneys' fees, tenant improvement costs
and other costs and expenses incurred in connection with the
leasing, or the improvement for leasing, of any premises.
(h) any cost incurred in furnishing items or services other than to
all tenants of the Property or Building generally.
(i) advertising, marketing, media and promotional expenditures
regarding the Property or Building, and costs of signs in or on
the Property or Building identifying the owner, lender or any
contractor thereof.
(j) in the event a parking charge is imposed for use of the parking
areas serving the Property or Buildings, costs incurred for the
maintenance, repair and operation of such parking areas.
(k) in no event shall management and administration fees include any
salaries, benefits or other compensation paid to personnel who
are not engaged full
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time or part time, as the case may be, in connection with the
maintenance, operation or management of the Property; Landlord's
general and administrative overhead expenses; costs of
automobiles and travel expenses; professional, civic or
recreational memberships; costs of seminars, conventions,
educational programs and the like; or charitable contributions.
Salaries of part-time personnel shall be included in Operating
Expenses only to the extent of, and in proportion to, such
person's engagement in the maintenance, operation or management
of the Property.
All maintenance and other on-going service contracts for the
Property shall be competitively bid; Landlord shall accept the lowest
responsible bidder conforming to Landlord's requirements.
The aggregate sum of all Operating Expenses upon which the
tenants' proportionate share is determined for a particular Lease year
shall not exceed the aggregate sum of such cost items which are
actually incurred by Landlord for the year in question. No cost item
shall be included more than once or allocated under more than one
expense category.
E. Tax Exclusions. Notwithstanding anything to the contrary in the Lease,
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"Taxes" (paragraph 3(B)(d) and "Real Property Taxes" (paragraph 6(B))
shall not include, and Tenant shall have no liability for the
following charges: (1) interest or penalties imposed as a result of
Landlord's failure to pay taxes or assessments when due; (2) any
taxes, fees, assessments, levies or similar impositions that are
charged or assessed other than with respect to the Premises, Building
or Property; (3) increases in real estate taxes resulting from new
construction (other than of the Tenant Improvements) or related to
Tenant's use of the Premises; (4) Landlord's estate, gift, transfer,
franchise or income taxes; or (5) any tax for which Landlord has the
right to reimbursement from any other tenant or occupant of the
Building or Property. All assessments which can be paid by Landlord or
installments shall be included as a reimbursable expense item as if
paid over the maximum number of installments permitted, regardless of
when Landlord actually pays such assessments.
4. Security Deposit. Landlord acknowledges that Tenant has deposited with
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Landlord a Security Deposit in the sum of Seven Thousand, Eight Hundred
Ninety-Five and 70/100 Dollars ($7,895.70) to secure the full and faithful
performance by Tenant of each term, covenant, and condition of this Lease.
If Tenant shall at any time fail to make any payment of Basic Rent or
Additional Rent or any other monetary amount due hereunder, or fail to keep
or perform any term, covenant, or condition on its part to be made or
performed or kept under this Lease, Landlord may, but shall not be
obligated to and without waiving or releasing Tenant from any obligation
under this Lease, use, apply, or retain the whole or any part of said
Security Deposit (a) to the extent of any sum due to Landlord; or (b) to
make any required payment on Tenant's behalf; or (c) to compensate
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Landlord for any loss, damage, attorneys' fees or expense sustained by
Landlord due to Tenant's default. In such event, Tenant shall, within ten
(10) days of written demand by Landlord, remit to Landlord sufficient funds
to restore the Security Deposit to its original sum. Tenant's failure to do
so shall be a material breach of this Lease. No interest shall accrue on
the Security Deposit. Should Tenant comply with all the terms, covenants
and conditions of this Lease and at the end of the term of this Lease leave
the Premises in the condition required by this Lease, then said Security
Deposit or any balance thereof, less the sums owing to Landlord, shall be
returned to Tenant (or, at Landlord's option, to the last assignee of
Tenant's interest hereunder) after the termination of this Lease and
vacancy of the Premises by Tenant. Tenant shall not have the right to apply
this Security Deposit or any part thereof toward the payment of any Rent
due hereunder. Landlord can maintain the Security Deposit separate and
apart from Landlord's general funds, or can commingle the Security Deposit
with Landlord's general and other funds.
5. Use of the Premises. The Premises shall be used exclusively for the purpose
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of general office use for a permanent and temporary employment placement
agency and all other legally related uses associated therewith. Tenant
shall not use, or permit the Premises, or any part thereof, to be used, for
any purpose other than the purpose for which the Premises are hereby
leased; and no use shall be made or permitted to be made of the Premises,
nor acts done, which will increase the existing rate of insurance upon the
Building in which the Premises are located, or cause a cancellation of any
insurance policy covering said Building, or any part thereof, nor shall
Tenant sell or permit to be kept, used or sold, in or about the Premises,
any article which may be prohibited by the standard form of fire insurance
policies. Tenant shall not commit, or suffer to be committed, any waste
upon the Premises, or any public or private nuisance, or other act or thing
which may injure, or disturb the quiet enjoyment of any occupant of
neighboring properties or other tenant in the Building or on the Property
in which the Premises are located; nor, without limiting the generality of
the foregoing, shall Tenant allow the Premises to be used for any unlawful
purpose. Tenant shall not place any harmful liquids in the drainage system
of the Premises or of the Building of which the Premises forms a part.
Tenant shall not place any loads upon the floors, walls, ceilings or roof
which might endanger the structure nor overload any electrical, mechanical,
or other systems. No waste materials or refuse shall be dumped upon or
permitted to remain upon any part of the Premises outside the Building
except in trash containers placed inside exterior enclosures approved for
that purpose by Landlord, or inside the Building proper where designated by
Landlord. No materials or articles of any nature shall be stored upon or
permitted to remain outside of the Building proper. 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
(including the common areas and hallways of the Building). No loudspeaker
or other device, system, or apparatus which can be heard outside the
Premises shall be used in or at the Premises without the prior written
consent of Landlord. Tenant covenants and agrees that no diminution of
light, air or view by any structure which may be hereafter erected, whether
or not by Landlord, or use of the Building by any other occupants or use of
neighboring buildings or areas by others shall in any way affect this
Lease, entitle Tenant to any reduction of Rent
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hereunder, or result in any liability of Landlord to Tenant. Tenant shall
comply with all Rules and Regulations affecting the Premises which are
attached as Exhibit B.
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The term "Hazardous Material" means any hazardous or toxic substance,
material or waste, the storage, use, or disposition of which is or becomes
regulated by any local governmental authority, the State of California or
the United States government. The term "Hazardous Material" includes,
without limitation, any material or substance which is (i) defined as a
"hazardous waste," "extremely hazardous waste" or "restricted hazardous
waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section
25140 of the California Health and Safety Code, Division 20, Chapter 6.5
(Hazardous Waste Control Law), (ii) defined as a "hazardous substance"
under Section 25136 of the California Health and Safety Code, Division 20,
Chapter 6.8 (Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous Substance Account Act),
(iii) defined as a "hazardous material" "hazardous substance," or
"hazardous waste" under Section 25501 of the California Health and Safety
Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans
and Inventory), (iv) defined as a "hazardous substance" under Section 25281
of the California Health and Safety Code, Division 20, Chapter 6.7
(Underground Storage of Hazardous Substances), (v) petroleum, (vi)
asbestos, (vii) listed under Article 9 or defined as hazardous or extremely
hazardous pursuant to Article 11 of Title 22 of the California
Administrative Code, Division 4, Chapter 20, (viii) designated as a
"hazardous substance" pursuant to Section 311 of the Federal Water
Pollution Control Act (33 U.S.C. Section 1317), (ix) defined as a
"hazardous waste" pursuant to Section 1004 of the Federal Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C.
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Section 6903), (x) defined as a "hazardous substance" pursuant to Section
101 of the Comprehensive Environmental Response Compensation and Liability
Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601) or (xi) listed
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or defined as "hazardous waste," "hazardous substance," or other similar
designation by any regulatory scheme of the State of California or the
United States Government. Tenant, at its sole cost shall comply with all
laws and regulations relating to the storage, use and disposal of Hazardous
Materials by the Tenant on the Premises. If Tenant does store, use or
dispose of any Hazardous Materials on the Premises other than customary
office supplies, Tenant shall notify Landlord, in writing, at least five
(5) days prior to their first appearance on the Premises. Tenant shall be
solely responsible for and shall defend, indemnify and hold Landlord, and
Landlord's partners, officers, employees, successors, assigns and agents
harmless from and against all claims, demands, damages, costs and
liabilities, including attorneys' fees and costs, arising out of or in
connection with the storage, use, or disposal of Hazardous Materials by
Tenant, its agents, employees, contractors, or sublessees.
If the presence of Hazardous Materials on the Premises caused or permitted
by Tenant, its agents, employees, contractors, or sublessees results in or
is likely to result in contamination or deterioration of water or soil
resulting in a level of contamination greater than the safe levels
established by any governmental agency having jurisdiction over such
contamination or if any investigation of conditions, or any clean up,
remedial removal or restoration work is required by any federal, state or
local governmental
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agency or political subdivision ("Governmental Agency") because of the
level of Hazardous Material in the soil or ground water or on the Premises
caused or permitted by Tenant, its agents, employees, contractors, or
sublessees, Tenant shall promptly, and at its sole cost, take any and all
action necessary to investigate and clean up such contamination. At any
time prior to the expiration of the Lease Term, Tenant shall have the right
to conduct appropriate tests of waste and soil and to deliver to Landlord
the results of such tests to demonstrate that no contamination has occurred
as a result of Tenant's use of the Premises. Tenant shall further be solely
responsible for, and shall defend, indemnify and hold Landlord and
Landlord's partners, officers, employees, successors, assigns and agents
harmless from and against, all claims, demands, damages, costs and
liabilities, including attorneys' fees and costs, arising out of or in
connection with any removal, clean-up and restoration work and materials
required hereunder to return the Premises, the Property of which the
Premises are a part, or the surrounding properties to its condition
existing prior to the appearance of the Hazardous Materials caused or
permitted by Tenant, its agents, employees, contractors, or sublessees.
If Landlord has good cause to believe that the Premises or the Property
which the Premises are a part, have or may become contaminated by Hazardous
Materials, Landlord may cause tests to be performed, including xxxxx to be
installed on the Property, and may cause the soil or ground water to be
tested to detect the presence of Hazardous Materials by the use of such
tests as are then customarily used for such purposes. If Tenant so
requests, Landlord shall supply Tenant with copies of such test results.
The cost of such tests of the installation, maintenance, repair and
replacement of such xxxxx shall be paid by Landlord, unless contamination
is found and it is determined by Landlord's environmental consultant that
Tenant caused such contamination, in which event Tenant shall pay such
costs.
To Landlord's current actual knowledge, without independent investigation,
the Premises, Building and Property are free from Hazardous Materials.
Landlord hereby indemnifies and agrees to hold Tenant harmless from
liability for Hazardous Materials compliance, clean-up or testing to the
extent, and only to the extent, such compliance, clean-up or testing are
not required because of or attributable to the acts of Tenant. Tenant shall
have the right with prior written approval of Landlord at any time during
the Lease term to conduct its own test of the soil and/or ground water
underlying the Property by using such xxxxx so long as each of the
following conditions are satisfied: (i) such tests are conducted by Tenant
at its own expense, (ii) it repairs any damage to such xxxxx caused by such
test; (iii) it holds Landlord, and Landlord's partners, officers,
employees, assigns, successors and agents harmless from any cost, liability
or claims including reasonable attorneys' fees, from its tests including
mechanic's liens, as well as contamination to the Property or surrounding
properties, including the soil and groundwater thereunder, and (iv) it
timely delivers copies of the results of such test to Landlord.
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The termination of the Lease shall not terminate the parties' rights and
obligations under this Paragraph and the parties hereto expressly agree
that the provisions contained herein shall survive the termination of
Tenant's leasehold estate.
Tenant shall abide by all laws, ordinances and statutes, as they now exist
or may hereafter be enacted by legislative bodies having jurisdiction
thereof, relating to its particular use and occupancy of the Premises.
The provisions of this Paragraph are for the benefit of the Landlord and
Tenant only and shall not be construed to be for the benefit of any other
person or occupant of the Premises.
6. Taxes and Assessments.
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A. Tenant shall pay before delinquency any and all taxes, assessments,
license fees and public charges levied, assessed or imposed upon or
against Tenant's fixtures, equipment, furnishings, furniture,
appliances and personal property installed or located on or within the
Premises. Tenant shall cause said fixtures, equipment, furnishings,
furniture, appliances and personal property to be assessed and billed
separately from the real property of Landlord. If any of Tenant's said
personal property shall be assessed with Landlord's real property,
Tenant shall pay to Landlord the taxes attributable to Tenant within
ten (10) days after receipt of a written statement from Landlord
setting forth the taxes applicable to Tenant's property or ten (10)
days prior to delinquency, whichever is later.
B. All Real Property Taxes shall be paid by Landlord and shall be
included in Operating Expenses described in Paragraph 3 above. The
term "Real Property Taxes," as used herein, shall mean and include:
(i) all taxes, assessments, levies and other charges of any kind or
nature whatsoever, general and special, foreseen and unforeseen
(including without limitation, 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 Premises or otherwise) now or hereafter
imposed by any governmental or quasi-governmental authority or special
district having the direct or indirect power to tax or levy
assessments, which are levied or assessed against, or with respect to
the value, occupancy, or use of all or any portion of the Premises (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 Premises (regardless of ownership);
the fixtures, equipment and other property of Landlord, real or
personal, that are an integral part of and located in the Premises;
and landscaping areas, walkways, parking areas, public utilities, or
energy within the Premises; and (ii) all costs and fees (including
reasonable attorneys' fees) incurred by Landlord or Tenant in
reasonably 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
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assessment of the Premises 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 Premises or Landlord's interest therein or (ii) on or
measured by the gross receipts, income or Rentals from the Premises,
on Landlord's business of leasing the Premises, or based on parking,
employment, production or the like at the Premises, or computed in
manner with respect to the operation of the Premises, then any such
tax or charge, however designated, shall be included within the
meaning of the term "Real Property Taxes" for purposes of this Lease.
If any Real Property Tax is based in part upon property or rents
unrelated to the Premises, then only that part of such Real Property
Tax that is fairly allocable to the Premises shall be included within
the meaning of the term "Real Property Taxes."
7. Insurance.
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A. Indemnity. Tenant agrees to indemnify and defend (with counsel of
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Tenant's choosing acceptable to Landlord) Landlord against and hold
Landlord and Landlord's partners, employees, officers, assigns and
successors harmless from any and all demands, claims, causes of
action, judgments, obligations or liabilities, and all reasonable
expenses incurred in investigating or resisting the same (including
reasonable attorneys' fees), on account of, or arising out of Tenant's
use or occupancy of the Premises. This Lease is made on the express
condition that Landlord shall not be liable for, or suffer loss by
reason of, injury to person or property, from whatever cause, in any
way connected with the Tenant's use or occupancy of the Premises
specifically including, without limitation, any liability for injury
to the person or property of Tenant, its agents, officers, employees,
licensees and invitees. Such indemnification shall not apply to
liabilities arising from the negligence or willful misconduct of
Landlord or Landlord's employees, agents, contractors and invitees.
B. Liability and Worker's Compensation Insurance. Tenant shall, at the
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Tenant's expense, obtain and keep in force during the term of this
Lease a policy of Worker's Compensation Insurance and a policy of
comprehensive public liability insurance insuring Landlord and Tenant,
with cross-liability endorsements, against any liability arising out
of the condition, use or occupancy of the Premises and all areas
appurtenant thereto, including parking areas. Such insurance shall be
in an amount satisfactory to Landlord of not less than $2,000,000 for
bodily injury or death as a result of any one occurrence, and
$1,000,000 for damage to property as a result of any one occurrence.
The insurance shall be with companies authorized to do business in the
State of California and companies of Best's Rating Guide of A+9 or
better. Tenant shall deliver to Landlord prior to possession, a
certificate of insurance evidencing the existence of the policy
11
required hereunder, and such certificate shall certify that the policy
(1) names Landlord as an additional insured; (2) shall not be canceled
or coverage reduced without thirty (30) days prior written notice to
Landlord; (3) insures performance of the indemnity set forth in
Subparagraph A. above; and (4) the coverage is primary and any
coverage by Landlord is in excess thereto.
Landlord shall, at all times during the term hereof, maintain in
effect a policy of public liability and property damage insurance
insuring against any liability (including bodily injury or property
damage) arising on or about the Property with policy limits determined
by Landlord in its sole discretion so long as such policy rates do not
exceed commercially reasonable rates paid by Landlords of similar
properties in Santa Xxxxx County, California. Such insurance costs
shall be included in Operating Expenses described in Paragraph 3
above.
C. Insurance of Personal Property, Fixtures and Equipment/Business
---------------------------------------------------------------
Interruption Insurance. Tenant shall at all times during the term
----------------------
hereof, and at its cost and expense, maintain in effect policies of
insurance covering: its personal property, inventory, fixtures and
equipment located on the Premises, in an amount not less than one
hundred percent (100%) of their actual replacement value, providing
protection against any peril included within the classification "Fire
and Extended Coverage," together with insurance against sprinkler
damage, vandalism and malicious mischief. The proceeds of such
insurance, so long as this Lease remains in effect, shall be used to
repair or replace the personal property, inventory, fixtures, and
equipment so insured. In addition, Tenant shall reimburse Landlord, as
a part of Operating Expenses, for the cost of a policy of business
interruption insurance coverage insuring that 100% of the monthly
Basic Rent will be paid to Landlord for a period of not less than one
(1) year if the Premises are destroyed or rendered inaccessible by a
risk insured against by a policy of standard fire and extended
coverage insurance, with vandalism, sprinkler damage, and malicious
mischief endorsements.
D. Property Insurance. Landlord shall obtain and keep in force during the
------------------
term of this Lease a policy or policies of insurance coverage
including fire, extended coverage, earthquake and flood, for loss or
damage to the Premises, in the amount of the full replacement value
thereof. Such insurance costs shall be included in Operating Expenses
described in Paragraph 3 above.
E. Mutual Waiver of Subrogation. The parties hereto release each other
----------------------------
and their respective authorized representatives, partners, officers,
agents, employees and servants, from any and all claims, demands,
loss, expense, or injury to any person or to the Premises or Building
or to the furnishings, fixtures, or equipment, caused by or resulting
from perils, events or happenings which are the subject of insurance
in force at the time of such loss. Each party shall cause each
insurance policy obtained by it to provide that the insurance company
waives all right of recovery by way of subrogation against either
party in connection with any
12
damage covered by any policy. Neither party shall be liable to the
other for any damage caused by fire or any of the risks insured
against under any insurance policy in effect as required by this
Lease.
8. Operation, Management, Services and Utilities. All expenses of operation
---------------------------------------------
and management of the Premises and the Building or Property of which the
Premises are a part, including, but not limited to, water, gas, light,
heat, power, electricity, telephone, trash pick-up, property management
services, landscaping, janitorial services, sewer charges, pest control,
security charges, and all other services supplied to or consumed on the
Premises or the Building or Property of which the Premises are a part shall
be included in Operating Expenses described in Paragraph 3 above, except to
the extent HVAC charges are directly billed to Tenant for after hours
usage. 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 or other services to the Premises during the Lease term unless
such interruption or failure continues unabated for seventy-two (72) hours
and is caused by Owner's negligence or willful misconduct. Utilities and
services shall be provided in accordance with the Standards for Utilities
and Services set forth in Exhibit "C" which is attached hereto and
-----------
incorporated herein. The parties agree to the terms and provisions set
forth in the Standards and to any reasonable or necessary modifications or
additions thereto.
9. Repair and Maintenance.
-----------------------
A. Subject to provisions of Xxxxxxxxx 00, Xxxxxxxx shall keep and
maintain the roof, paving, structural elements, landscaping,
irrigation, and exterior walls of the Building and Property in good
order and repair. Landlord shall also keep and maintain in good order
and repair the windows, window frames, doors, hardware, and interior
walls and the electrical, plumbing, lighting, heating, and air
conditioning systems, lavatories, elevators, parking lot and all other
common areas. Such expenses shall be included in Operating Expenses
for purposes of Paragraph 3 above. If, however, any repairs or
maintenance are required because of an act or omission of Tenant, or
its agents, employees or invitees which creates an undue burden on
such items or systems listed above, Tenant shall pay to Landlord upon
demand one hundred percent (100%) of the costs of such repair or
maintenance. If such costs are covered by insurance carried by
Landlord, Landlord shall make a claim under the policy of insurance,
Tenant shall pay any deductible (and any portion of such costs not
covered by insurance) and Landlord shall credit Tenant for such costs
to the extent proceeds from such insurance are actually received by
Landlord. In the event such costs are not covered by insurance because
Landlord failed to obtain such insurance as required under this Lease,
Tenant shall be required to pay only that portion of such costs which
would not have been covered by insurance in any event.
13
B. Except as expressly provided in Subparagraph A above, Tenant shall, at
its sole cost, keep and maintain the interior of the Premises, in good
and sanitary order, condition and repair.
Should Tenant fail to maintain the Premises as required of Tenant
hereunder forthwith upon notice from Landlord, Landlord, in addition
to all other remedies available hereunder or by law, and without
waiving any alternative remedies, may make the same, and in that
event, Tenant shall reimburse Landlord for the cost of such
maintenance or repairs as Additional Rent, at Landlord's election on
demand or on the next date upon which Basic Rent becomes due.
Tenant hereby expressly waives the provisions of Subsection 1 of
Section 1932, and Sections 1941 and 1942 of the Civil Code of
California and all rights to make repairs at the expense of Landlord,
as provided in Section 1942 of said Civil Code.
10. Alterations and Additions. Tenant shall not make, or suffer to be made, any
-------------------------
alterations, improvements or additions in, on, or about, or to the Premises
or any part thereof (except for non-structural alterations costing less
than $10,000 which shall not require Landlord's prior written consent
provided such work does not interfere with the rights of other tenants of
the Building), without the prior written consent of Landlord and without a
valid building permit issued by the appropriate governmental authority. In
any event, Tenant hereby covenants and agrees to deliver written notice to
Landlord at least ten (10) days prior to such commencement of any
construction to allow Landlord to post notices of non-responsibility as
outlined in this Section. Landlord retains, at its sole option, the right
to perform all repairs, alterations, improvements or additions in, on,
about, or to said Premises or any part thereof. As a condition to giving
such consent, Landlord may require that Tenant agree to remove any such
alterations, improvements or additions at the termination of this Lease,
and to restore the Premises to their prior condition. Any alteration,
addition or improvements to the Premises, except movable furniture and
trade fixtures shall become the property of Landlord upon installation
(unless Landlord indicates at the time Landlord grants consent that such
shall be removed before the last day of the term of the Lease, as the same
may be extended), and shall remain upon and be surrendered with the
Premises at the termination of this Lease. If Landlord so elects, Tenant
shall restore the Premises to the condition existing prior to installation
of the alteration, addition or improvement before the last day of the term,
as the same may be extended. Alterations and additions which are deemed as
trade fixtures include computers, Halon fire systems, telephone systems and
furniture. In the event Tenant makes any alterations, improvements, or
additions to the Premises, Landlord shall have the right to enter the
Premises during Tenant's business hours and after reasonable prior notice,
to post such notices of non-responsibility, which shall remain posted until
completion of the alterations, additions or improvements. Tenant's failure
to notify Landlord as set forth herein in order to allow Landlord to post
such notices of non-responsibility shall be a breach of this Lease and
Tenant shall indemnify Landlord from and against all claims, losses,
damages, and/or liability resulting therefrom,
14
including reasonable attorney's fees. If, during the term hereof, any
alteration, addition or change of any sort through all or any portion of
the Premises is required by law, regulation, ordinance or order of any
public agency as a result of Tenant's particular use, Tenant, at its sole
cost and expense, shall promptly make the same.
11. Acceptance of the Premises and Covenant to Surrender. By entry and taking
----------------------------------------------------
possession of the Premises pursuant to this Lease, 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
condition existing as of the date of such entry subject to Landlord's
punchlist obligation and to latent defects and without representation or
warranty by Landlord as to the use or occupancy which may be made thereof.
Landlord has received no notice that the Premises do not comply with any
applicable law.
Tenant agrees on the last day of the term hereof, or on sooner termination
of this Lease, to surrender the Premises, together with all alterations,
additions and improvements which may have been made in, to, or on the
Premises by Landlord or Tenant (except those which Landlord has agreed may
be removed by Tenant), unto Landlord in good and sanitary order, condition
and repair, excepting for such wear and tear as would be normal for the
period of Tenant's occupancy and damage by casualty events or Landlord's
failure to perform its obligations under the Lease unless such failure was
directly attributable to an act of Tenant or Tenant's employees, agents,
contractors or invitees in which event such act would not excuse Tenant
from delivering the Premises as set forth herein. Tenant, on or before the
end of the term or sooner termination of this Lease, shall remove all its
personal property and trade fixtures from the Premises, and all property
not so removed shall be deemed to be abandoned by Tenant and title to the
same shall thereupon pass to Landlord without compensation to Tenant.
Landlord may, upon termination of this Lease, remove, store and/or sell all
moveable personal property and trade fixtures 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, then 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. No act or conduct of
Landlord, whether consisting of the acceptance of the keys to the demised
Premises, or otherwise, shall be deemed to be or constitute an acceptance
of the surrender of the demised Premises by Tenant prior to the expiration
of the term hereof as provided in this Lease, and such acceptance of the
surrender by Tenant shall only flow from and must be evidenced by a written
acknowledgment of acceptance of surrender signed by Landlord. The voluntary
or other surrender of this Lease of 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 existing subleases or operate as an
assignment to Landlord of all such subleases. After 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
15
the cloud or encumbrance created by this Lease from the real property of
which Tenant's Premises are a part.
12. Events of Default. The occurrence of any of one or more of the following
-----------------
events shall constitute a default hereunder by Tenant:
A. The abandonment of the Premises by Tenant. Abandonment is herein
defined to include, but is not limited to, any absence by Tenant from
the Premises for five (5) days or longer while in default of any
provision of this Lease.
B. The failure by Tenant to make any payment of Rent, or other payment
required to be made by Tenant hereunder, within seven (7) days after
written notice that the same is due and unpaid.
C. The failure by Tenant to observe or perform any of the express
covenants or provisions of this Lease to be observed or performed by
Tenant, other than as specified in A. or B. above, where such failure
shall continue for a period of thirty (30) days after written notice
thereof from Landlord to Tenant; provided, however, that any such
notice shall be in lieu of, and not in addition to, any notice
required under California Code of Civil Procedure Section 1161;
provided further, that if the nature of Tenant's default is such that
more than thirty (30) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant shall commence
such cure within said thirty (30) day period and thereafter diligently
prosecute such cure to completion.
D. An assignment or subletting of this Lease without the consent of
Landlord, including, without limitation, an involuntary assignment as
defined in Paragraph 21 to the extent Landlord's consent is required
pursuant to Paragraph 21.
E. Chronic delinquency by Tenant in the payment of Rent, or any other
periodic payments required to be paid by Tenant under this Lease.
"Chronic delinquency" shall mean failure by Tenant to pay Rent, or any
other payments required to be paid by Tenant under this Lease within
three (3) days after written notice thereof for any three (3) months
(consecutive or nonconsecutive) during any twelve (12) month period.
In the event of a Chronic delinquency, at Landlord's option, Landlord
shall have the right, in addition to all other remedies under this
Lease and at law, to require that Rent be paid by Tenant quarterly, in
advance. This provision shall not limit in any way nor be construed as
a waiver of the rights and remedies of Landlord provided herein or by
law in the event of even one instance of delinquency.
13. Remedies for Default. In the event of any breach of this Lease by the
--------------------
Tenant, or an abandonment of the Premises by the Tenant, the Landlord has
the option of (1) removing all persons and property from the Premises and
repossessing the Premises in accordance with law, in which case any of the
Tenant's property which the Landlord removes from
16
the Premises may be stored in a public warehouse or elsewhere at the cost
of, and for the account of Tenant, or (2) keeping the Lease in effect and
allowing the Tenant to remain in full possession and control of the
Premises. If the Landlord chooses to repossess the Premises, the Lease will
automatically terminate in accordance with the provisions of California
Civil Code, Section 1951.2. In the event of such termination of the Lease,
the Landlord may recover from the Tenant: (1) the worth at the time of
award of the unpaid Rent which had been earned at the time of termination;
(2) the worth at the time of award of the amount by which the unpaid Rent
which would have been earned after termination until the time of award
exceeds the amount of such Rental loss that the Tenant proves could have
been reasonably avoided; (3) the worth at the time of award of the amount
by which the unpaid Rent for the balance of the term after the time of
award exceeds the amount of such Rental loss that the Tenant proves could
be reasonably avoided; and (4) any other amount necessary to compensate the
Landlord for all the detriment proximately caused by the Tenant's failure
to perform its obligations under the Lease or which, in the ordinary course
of things, would be likely to result therefrom. "The worth at the time of
the award", as used in (1) and (2) of this paragraph, is to be computed by
allowing interest at the maximum rate an individual is permitted by law to
charge. "The worth at the time of the award," as referred to in (3) of this
paragraph, is to be computed by discounting the amount at the discount rate
of the Federal Reserve Bank of San Francisco at the time of the award, plus
one percent (1%).
If Landlord elects to relet the Premises as provided in this Paragraph,
Rent that Landlord receives from reletting shall be applied to the payment
of:
First, any indebtedness from Tenant to Landlord other than Rent due from
Tenant;
Second, all costs, including for maintenance, incurred by Landlord in
reletting;
Third, Rent due and unpaid under this Lease. After deducting the payments
referred to in this Paragraph, any sum remaining from the Rent Landlord
receives from reletting shall be held by Landlord and applied in payment of
future Rent as Rent becomes due under this Lease. In no event shall Tenant
be entitled to any excess Rent received by Landlord. If, on the date Rent
is due under this Lease, the Rent received from reletting is less than Rent
due on that date, Tenant shall pay to Landlord, in addition to the
remaining Rent due, all costs including for maintenance, Landlord incurred
in reletting that remain after applying the Rent received from the
reletting, as provided in this Paragraph.
If the Landlord chooses not to repossess the Premises, but allows the
Tenant to remain in full possession and control of the Premises, in
accordance with provisions of California Civil Code, Section l951.4, the
Landlord may treat the Lease as being in full force and effect, and may
collect from the Tenant all Rents as they become due through the
termination date of the Lease, an specified in the Lease. For the purpose
of this Paragraph, the following do not constitute a termination of
Tenant's right to possession:
A. Acts of maintenance or preservation, or efforts to relet the Premises;
17
B. The appointment of a receiver on the initiative of the Landlord to
protect its interest under this Lease.
After Tenant's default and for as long as Landlord does not terminate
Tenant's right to possession of the Premises, if Tenant obtains
Landlord's consent, Tenant shall have the right to assign or sublet
its interest in this Lease, but Tenant shall not be released from
liability. Landlord's consent to a proposed assignment or subletting
shall not be unreasonably withheld.
Landlord at any time after Tenant commits a default, can cure the
default at Tenant's cost. If Landlord at any time, by reason of
Tenant's default, pays any sum or does any act that requires the
payment of any sum, the sum paid by Landlord shall be due on demand
from Tenant to Landlord, and if paid at a later date, bear interest at
the maximum rate an individual is permitted by law to charge from the
date the sum is paid by Landlord until Landlord is reimbursed by
Tenant. The sum, together with interest on it, shall be Additional
Rent.
Any Rent not paid when due shall bear interest at the maximum rate an
individual is permitted by law to charge from the tenth day that such
Rent is due and unpaid until paid and shall be subject to the late
charge set forth in Paragraph 3 above.
14. Destruction. In the event the Premises are destroyed in whole or in part
-----------
from any cause, Landlord may, at its option:
A. Rebuild or restore the Premises to their condition prior to the damage
or destruction; or
B. Terminate the Lease if the Premises are substantially damaged.
If Landlord does not give Tenant notice in writing sixty (60) days
from the destruction of the Premises of its election to either rebuild
and restore the Premises, or to terminate this Lease, and provided
that insurance proceeds are sufficient to rebuild or restore the
Premises, 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 substantially its condition
prior to the damage or destruction. If Landlord does not complete the
rebuilding or restoration within one hundred eighty (180) days
following the date of destruction, (such period of time to be extended
for delays caused by the fault or neglect of Tenant or because of acts
of God, acts of public agencies, labor disputes, strikes, fires,
freight embargoes, rainy or stormy weather, inability to obtain
materials, supplies or fuels, or delay of the contractors or
subcontractors due to such causes or other contingencies beyond the
control of Landlord), then Tenant shall have the right to terminate
this Lease by giving fifteen (15) days prior written notice to
Landlord. Landlord's obligation to rebuild or restore shall not
include restoration of Tenant's trade fixtures, equipment,
merchandise, or any improvements, alterations or additions made by
Tenant to the Premises, but shall
18
include those improvements and alterations made by Landlord for the
benefit of Tenant.
In the event the Premises are substantially damaged, Tenant shall have
the right to terminate this Lease by providing Landlord with written
notice on or before sixty (60) days from the date of substantial
damage. For purposes of this paragraph, the term "substantially
damaged" shall mean that twenty-five percent (25%) of the net rentable
square footage of the Premises are rendered unusable by Tenant as a
result of damage to the Premises or Building.
Unless this Lease is terminated pursuant to the foregoing provisions,
this Lease shall remain in full force and effect. Tenant hereby
expressly waives the provisions of Section 1932, Subdivision 2, and
Section 1933, Subdivision 4, of the California Civil Code.
In the event the Lease is not terminated, there shall be an abatement
or reduction of Rent between the date of destruction and the date of
substantial completion of restoration, based on the extent to which
the destruction and restoration interferes with Tenant's use of the
Premises.
In the event that the Building in which the Premises are situated is
damaged or destroyed to the extent of not less than fifty percent
(50%) of the replacement cost thereof, Landlord may elect to terminate
this Lease, whether the Premises be injured or not.
15. Condemnation. If any part of the Premises shall be taken for any public or
------------
quasi-public use, under any statute or by right of eminent domain, or
private purchase in lieu thereof, and a part thereof remains, which is
susceptible of occupation hereunder, this Lease shall, as to the part so
taken, terminate as of the date title shall vest in the condemnor or
purchaser, and the Rent payable hereunder shall be adjusted so that the
Tenant shall be required to pay for the remainder of the term only such
portion of such Rent as the value of the part remaining after such taking
bears to the value of the entire Premises prior to such taking. Tenant
shall have the option to terminate this Lease in the event that such taking
causes a reduction in the net rentable square feet of the Premises by
twenty-five percent (25%) or more. If all of the Premises or such part
thereof be taken so that there does not remain a portion susceptible for
occupation hereunder, as reasonably necessary for Tenant's conduct of its
business as contemplated in this Lease, this Lease shall thereupon
terminate. If a part or all of the Premises be taken, all compensation
awarded upon such taking shall go to the Landlord, and the Tenant shall
have no claim thereto, and the Tenant hereby irrevocably assigns and
transfers to the Landlord any right to compensation or damages to which the
Tenant may become entitled during the term hereof by reason of the purchase
or condemnation of all or a part of the Premises. Tenant shall have the
right to separately petition and to claim and recover from the condemning
authority, but not from Landlord, such compensation as may be separately
awarded or recoverable by Tenant in Tenant's own right on account of any
and all damage to
19
Tenant's business, including without limitation the loss of goodwill by
reason of any appropriation, and for or on account of any cost or loss to
which Tenant might be put in removing and relocating Tenant's merchandise,
furniture, moveable trade fixtures, and equipment. In no event, however,
shall the loss of goodwill include any diminution in the value of the
leasehold or the bonus value of this Lease. Each party waives the
provisions of Code of Civil Procedure, Section 1265.130, allowing either
party to petition the Superior Court to terminate this Lease in the event
of a partial taking of the Premises.
16. Free from Liens. Tenant shall (1) pay for all labor and services performed
---------------
or materials used by or furnished to Tenant, or any contractor employed by
Tenant with respect to the Premises, and (2) indemnify, defend and hold
Landlord and the Premises harmless and free from any liens, claims,
demands, encumbrances, or judgments created or suffered by reason of any
labor or services performed or materials used by or furnished by Tenant or
any contractor employed by Tenant with respect to the Premises, and (3)
give notice to Landlord in writing five (5) days prior to employing any
laborer or contractor to perform services related, or receiving materials
for use upon the Premises, and (4) delivers to Landlord written notice
prior to commencement of construction to allow Landlord to post a notice of
non-responsibility in accordance with the statutory requirements of
California Civil Code, Section 3094, or any amendment thereof. In the
event an improvement bond with a public agency in connection with the above
is required to be posted, Tenant agrees to include Landlord as an
additional obligee.
17. Compliance with Laws. Tenant shall, at its own cost, comply with and
--------------------
observe all requirements of all municipal, county, state and federal
authority now in force, or which may hereafter be in force, pertaining to
Tenant's use and occupancy of the Premises, including, but not limited to
all provisions of the Americans with Disabilities Act of 1990 and all
regulations promulgated thereunder, as the same may be amended; provided,
however, that the foregoing shall not be deemed to obligate Tenant to make
any alterations, improvements or additions to the Building or Property.
18. Subordination. Tenant agrees that this Lease shall, at the option of
-------------
Landlord, be subject and subordinate to any mortgage, deed of trust, or
other instrument of security, which has been or shall be placed on the land
and Building, or land or Building of which the Premises form a part, and
this subordination is hereby made effective without any further act of
Tenant or Landlord provided that this Lease and Tenant's rights hereunder
shall not be limited, altered or terminated so long as Tenant observes and
performs its obligations hereunder. The Tenant shall, at any time
hereinafter, on demand, execute any documents that may be required by a
mortgagee or beneficiary under any deed of trust, solely for the purpose of
subjecting or subordinating this Lease to the lien of any such mortgage,
deed of trust, or other instrument of security. If Tenant fails to execute
and deliver any such documents or instruments, Landlord shall have the
right to execute and deliver any such documents or instruments on behalf of
Tenant.
If this Lease is or becomes subordinate to any encumbrance now of record or
encumbrance recorded after this date affecting the Premises, then Tenant
agrees to attorn
20
to any purchaser at any foreclosure sale, or to any grantee or transferee
designated in any deed given in lieu of foreclosure and Landlord shall use
its best efforts to obtain a written agreement from such purchaser, grantee
or transferee agreeing to perform Landlord's obligations under this Lease.
However, failure to obtain such written consent shall not constitute a
breach by Landlord under this Lease. In such event, Tenant shall execute,
at Landlord's or lender's request, such recognition and attornment
agreement as lender, at its option, may require solely to confirm such
attornment.
19. Abandonment. Tenant shall not vacate nor abandon the Premises at any time
-----------
during the term; and if Tenant shall abandon, vacate said Premises, or be
dispossessed by 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; provided, however, that Tenant shall
not be deemed to have abandoned or vacated the Premises so long as Tenant
continues to pay all Rents and other sums due under this Lease from Tenant
as and when due, and otherwise performs pursuant to the terms and
conditions of this Lease.
20. Assignment and Subletting.
-------------------------
A. Landlord's Consent Required. Tenant shall not, either voluntarily or
---------------------------
by operation of law, sell, encumber, pledge or otherwise transfer all
or any part of Tenant's leasehold estate hereunder or permit the
Premises to be occupied by anyone other than Tenant or Tenant's
employees, or sublet the Premises or any portion thereof, without
Landlord's prior written consent in each instance, which consent may
not unreasonably be withheld by Landlord. In exercising its reasonable
discretion, Landlord may consider all commercially relevant factors
involved in the leasing, subleasing or assignment of the space,
including, but not limited to, the following: (i) the credit
worthiness and financial stability of the prospective assignee or
sublessee; (ii) the compatibility of the prospective assignee or
sublease with Landlord, its property manager, and other tenants in the
Building; (iii) the references from prior landlords of such
prospective sublessee or assignee; (iv) the past history of such
sublessee or assignee with respect to involvement in litigation and
bankruptcy proceedings; (v) whether the proposed use of the Premises
by the prospective sublessee or assignee falls within the use
permitted under Paragraph 5; (vi) whether said sublessee or assignee
and the proposed use of the Premises is likely to have an adverse
impact on pedestrian and vehicular traffic and parking facilities, and
(vii) the anticipated use, storage, generation, treatment and disposal
of Hazardous Materials by such prospective sublessee or assignee. The
presence of one negative factor enumerated above shall be deemed
reasonable justification for Landlord's withholding consent. Tenant
shall provide Landlord with prior notice of any proposed assignment or
sublease as provided in Xxxxxxxxx 00X. Consent by Landlord to one or
more assignments of this Lease or to one or more subletting of the
Premises shall not operate to exhaust Landlord's rights under this
Paragraph. All Rent received by Tenant from its subtenants in excess
of the Rent payable by Tenant to Landlord under this Lease and after
deducting the reasonable costs and expenses incurred by Tenant in
effecting such sublease or
21
assignment shall be paid to Landlord. Any sublease or assignment
permitted herein, shall automatically terminate Tenant's option(s), if
any, to extend the term of this Lease and such options shall not be
available to any assignee, sublessee or other transferee. Landlord's
consent and the other restrictions set forth in this subparagraph
shall not apply to an assignment or subletting to any corporation
which results from a merger, consolidation or other reorganization in
which Tenant is not the surviving corporation, so long as the
surviving corporation has a net worth at the time of such assignment
or sublet equal to or greater than the net worth of Tenant at the time
of execution of this Lease and further provided the corporation's use
of the Premises complies with the use provisions of this Lease.
Landlord's consent and the other restrictions of this subparagraph A
also shall not apply to any assignment or subletting to any
corporation which controls, is controlled by or is under common
control with Tenant by means of an ownership interest of more than
fifty percent (50%).
B. Notice to Landlord. If Tenant desires at any time to assign this Lease
------------------
or to sublet the Premises or any portion thereof, it shall first
notify Landlord of its desire to do so and shall submit in writing to
Landlord (i) the name of the proposed sublessee or assignee; (ii) the
nature of the proposed sublessee's or assignee's business to be
carried on in the Premises; (iii) the terms and provisions of the
proposed sublease or assignment; and (iv) such reasonable financial
information concerning the proposed sublessee or assignee as Landlord
may need to make a prudent and considered decision.
C. Tenant Not Released. No subletting or assignment, even with the
-------------------
written consent of Landlord, shall relieve Tenant of its obligation to
pay the Rent and perform all of the other obligations to be performed
by Tenant hereunder. Tenant shall indemnify and hold Landlord harmless
from any and all claims, damages, liability and expenses, including
reasonable attorneys' fees and costs arising out of any claims by
brokers or others for commissions or finder's fees with respect to any
subletting or assignment by Tenant. The acceptance of Rent by Landlord
from any other person shall not be deemed to be a waiver by Landlord
of any provision of this Lease or to be a consent to any assignment or
subletting. Tenant immediately and irrevocably assigns to Landlord, as
security for Tenant's obligations under this Lease, all Rent from any
subletting, and Landlord, as assignee for Tenant or receiver for
Tenant appointed on Landlord's application may collect such Rent and
apply it toward Tenant's obligations under this Lease, except that,
until the occurrence of any act of default by Tenant, Tenant shall
have the right to collect such Rent.
D. Involuntary Assignment. No interest of Tenant in this Lease shall be
----------------------
assignable by operation of law. Without limiting the foregoing, each
of the following acts shall be considered an involuntary assignment:
(a) Transfer of this Lease by testacy or intestacy;
22
(b) If Tenant is or becomes bankrupt or insolvent, makes an
assignment for the benefit of creditors, or institutes a
proceeding under the Bankruptcy Act in which Tenant is the
bankrupt; or, if Tenant is a partnership or consists of more than
one person or entity, if any general partner of the partnership
or other person or entity is or becomes bankrupt or insolvent, or
makes an assignment for the benefit of creditors;
(c) The appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or
of Tenant's interests in this Lease, where possession is not
restored to Tenant within sixty (60) days so long as no monetary
default exists under this Lease; or
(d) The attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or
of Tenant's interest in this Lease, where seizure is not
discharged within sixty (60) days so long as no monetary default
exists under this Lease.
An involuntary assignment shall constitute a default by Tenant
and Landlord shall have the right to elect to terminate this
Lease, in which case this Lease shall not be treated as an asset
of Tenant.
E. Tenant to Reimburse for Expenses. Tenant agrees to reimburse Landlord
--------------------------------
as Additional Rent upon demand for Landlord's reasonable costs and
attorney's fees not to exceed $1,500 incurred in conjunction with the
processing, investigation and documentation of any requested
assignment, subletting, transfer, involuntary assignment change of
ownership or hypothecation of this Lease or Tenant's interest in and
to the Premises, regardless of whether any request actually results in
a permitted assignment, sublease, or other transfer.
21. Parking. Any parking charges, surcharges, or any other cost hereafter
-------
levied or assessed by local, state or federal governmental agencies in
connection with the use of the parking facilities serving the Premises,
including, without limitation, any parking surcharge imposed by or under
the authority of the Federal Environmental Protection Agency shall be
included in Operating Expenses in Paragraph 3 above. Each tenant, its
agents, officers, employees and invitees, shall have the non-exclusive
right (in conjunction with the use of the part of the Building leased to
such tenant) to make reasonable use of any driveways, sidewalks and parking
area located on the Property on which the Building is situated, except such
parking areas as may from time to time be leased for exclusive use by other
tenant(s). Tenant's such reasonable use of parking area shall not exceed
that percent of the total parking area which is equal to Tenant's
proportionate share of expenses set forth in Paragraph 3, subparagraph C
above. Tenant shall have the right to use, in common with all other tenants
of the Building four (4) parking spaces per every one thousand (1,000)
square feet of net rentable space leased by Tenant. Landlord shall maintain
the parking lot in a good and clean well lighted condition.
23
22. Insolvency or Bankruptcy. Either (a) the appointment of a receiver to take
------------------------
possession of all or substantially all of the assets of Tenant, which is
not dismissed within sixty (60) days, so long as Tenant is not in monetary
default or (b) a general assignment by Tenant for the benefit of creditors,
or (c) any action taken or suffered by Tenant under any insolvency or
bankruptcy act, which is not dismissed within sixty (60) days so long as
Tenant is not in monetary default shall constitute a breach of this Lease
by Tenant. Upon the happening of any such event, this Lease shall terminate
ten (10) days after written notice of termination from Landlord to Tenant.
This section is to be applied consistent with applicable state and federal
law in effect at the time such event occurs.
23. Landlord Loan or Sale. Tenant agrees, promptly following request by
---------------------
Landlord, to (a) execute and deliver to Landlord any estoppel certificates
presented to Tenant by Landlord, (i) certifying that this Lease is
unmodified and in full force and effect, (or, if modified, stating the
nature of such modification and certifying that this Lease, as so modified,
is in full force and effect) and the date to which the Rent and other
charges are paid in advance, if any, and (ii) acknowledging that there are
not, to Tenant's knowledge, any uncured defaults on the part of Landlord
hereunder or specifying those known to Tenant, and (iii) evidencing the
status of the Lease as may be required either by a lender making a loan to
Landlord, to be secured by deed of trust or mortgage covering the Premises,
or a purchase of the Premises from Landlord, and (b) to deliver to Landlord
the current financial statements of Tenant, including a balance sheet and
profit and loss statement, for the most recent fiscal year completed and
prepared in the ordinary cause of Tenant's business using prudent business
accounting practices consistently applied. Landlord agrees not to disclose
such financial statements except to lenders considering loans utilizing the
Property as collateral or purchasers interested in purchasing the Property
who, in each case have agreed to maintain such financial statements in
confidence. Tenant's failure to deliver an estoppel certificate within ten
(10) days following such request shall constitute a default under this
Lease and shall be conclusive upon Tenant that this Lease is in full force
and effect and has not been modified except as may be represented by
Landlord, and that there are no uncured defaults in Landlord'" performance.
If Tenant fails to deliver the estoppel certificate within the ten (10)
days, Landlord shall have the right to execute and deliver the certificate
to any third party on behalf of Tenant.
24. Surrender of Lease. The voluntary or other surrender of this Lease by
------------------
Tenant, or a mutual cancellation thereof, shall not work a merger nor
relieve Tenant of any of Tenant's obligations under this Lease, and shall,
at the option of Landlord, terminate all or any existing subleases or
subtenancies, or may, at the option of Landlord, operate as an assignment
to Landlord of any or all such subleases or subtenancies.
25. Attorney's Fees. If, for any reason, any suit be initiated to enforce any
---------------
provision of this Lease, the prevailing party shall be entitled to legal
costs, expert witnesses expenses and reasonable attorney's fees as fixed by
the Court.
24
26. Notices. All notices to be given to Tenant may be given in writing,
-------
personally or by depositing the same in the United States mail, postage
prepaid, and addressed to Tenant at the said Premises, whether or not
Tenant has departed from, abandoned or vacated the Premises. Any notice or
document required or permitted by this Lease to be given Landlord shall be
addressed to Landlord at the address set forth below, or at such other
address as it may have theretofore specified by notice delivered in
accordance herewith:
Landlord: 0000 Xxxxxxx Xxxxx Xxxxxxxxx Joint Venture
c/o Cushman & Xxxxxxxxx
Bank of America Center
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
with copy to: Hutton1GSH Qualified Properties 80
Shearson Xxxxxx Brothers Plaza
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
X.X., X.X. 00000
Attn: Xx. Xxxxxxx Xxxxxxxxx
Tenant: Stellar Corporation d/b/a
Xxxxxxxx Personnel Services
0000 Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
A notice shall be deemed to be given (i) on the third day after mailing if
such notice was deposited in the United States mail, certified or
registered, postage prepaid, addressed to the party as indicated herein and
(ii) in all other cases when actually received at the party's address.
either party may change its address by giving notice of the same in
accordance with this paragraph.
27. Waiver. The waiver by Landlord or Tenant of any breach of any term,
------
covenant or condition herein contained shall not be deemed to be a waiver
of any subsequent breach of such term, covenant, or condition herein
contained. The subsequent acceptance of Rent hereunder by Landlord shall
not be deemed to be a waiver of any preceding breach by Tenant of any term,
covenant, or condition of this Lease, other than the failure of Tenant to
pay the particular Rental so accepted, regardless of Landlord's knowledge
of such preceding breach at the time of acceptance of such Rent.
28. Holding Over. Any holding over after the expiration of the term or any
------------
extension thereof, with the consent of Landlord, shall be construed to be a
tenancy from month-to-month, at a Rental of one and one-half times the
monthly Rental due for the last month of the term
25
of the Lease, and shall otherwise be on the terms and conditions herein
specified so far as applicable.
29. Rules and Regulations. As a condition to this Lease, Tenant agrees to
---------------------
abide by all of the Rules and Regulations for the Building which Rules and
Regulations are attached hereto as Exhibit B. Moreover, Tenant agrees to
---------
abide by any reasonable changes to such Rules and Regulations as may be
adopted by Landlord for the safety, care and cleanliness of the Building
and/or Premises and the preservation of good order thereon, are hereby
expressly made a part hereof, and Tenant agrees to obey all such rules and
regulations.
30. Limitation on Landlord's Liability. If Landlord is in default of this
----------------------------------
Lease, and as a consequence Tenant recovers a money judgment against
Landlord, the judgment shall be satisfied only out of the proceeds of sale
received on execution of the judgment and levy against the right, title,
and interest of Landlord in the Premises, or in the Building, other
improvements, and land of which the Premises are part, and out of Rent or
other income from such real property receivable by Landlord or out of the
consideration received by Landlord from the sale or other disposition of
all or any part of Landlord's right, title, and interest in the Premises or
in the Building, other improvements, and land of which the Premises are
part. The partners comprising the partnership or officers of the
corporation designated as Landlord shall not be personally liable for any
deficiency. The provisions of this paragraph shall not apply to limit the
individual liability of Landlord or its partners, officers, agents or
employees for their willful misconduct.
31. Sale of Transfer of Premises. If Landlord sells or transfers all or any
----------------------------
portion of the Premises, or Building or Property of which the Premises are
a part, Landlord, on consummation of the sale or transfer, shall be
released from any liability thereafter accruing under this Lease. Landlord
shall use its best efforts to obtain from the new transferee an agreement
in writing whereby the transferee agrees to perform all of Landlord's
obligations under the Lease. However, failure to obtain such writing shall
not constitute a breach by Landlord under this Lease. If any security
deposit or prepaid Rent has been paid by Tenant, Landlord agrees to
transfer the security deposit or prepaid Rent to Landlord's successor,
other than any portion of the security deposit applied or retained to
compensate Landlord for any loss or damage which Landlord may have suffered
as a result of Tenant's default, and thereupon, Landlord shall be
discharged from any further liability in reference thereto.
32. Landlord's Right 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 required to be paid by
it hereunder or shall fail to perform or observe any other term hereunder
on its part to be performed or observed, Landlord may, at its option,
without waiving or releasing Tenant from any obligation of Tenant
hereunder, make any such payment or perform or observe any such other term
or act on Tenant's part to be performed or observed. All sums so paid by
Landlord and all reasonably necessary costs of such performance or
observation by Landlord together with interest thereon from the
26
date incurred at the maximum rate an individual is permitted by law to
charge, shall be paid by Tenant to Landlord as Additional Rent on demand,
in which event and as to the same Landlord shall have the same rights and
remedies against Tenant as in the case of nonpayment of Rent hereunder.
33. Landlord's Right of Entry. Landlord (and/or its representatives) shall
-------------------------
have the right, at all reasonable times during Tenant's business hours and
after not less than 24 hours prior notice (except in the case of an
emergency for which no notice or time restriction applies), to enter the
Premises to place "For Lease" (only during the last 6 months of the Lease
Term) or "For Sale" signs on the Premises to show the Premises to
prospective tenants, purchasers or lenders, to post notices; to inspect, or
perform its maintenance, repair and other obligations under this Lease, and
in connection therewith to erect scaffolding and other necessary structures
in or near the Premises; provided that such entry and all activities of
Landlord in or about the Premises shall be done in a manner so as to cause
the least practicable interference with Tenant's use of the Premises; no
materials, equipment or tools shall be stored in the Premises; all debris
shall be removed daily; and Landlord shall indemnify Tenant against all
damage and injury resulting therefrom (other than the direct interference
with Tenant's operations). Landlord shall also have the right to enter the
Premises in those emergency situations which could involve potential injury
to persons or loss of property. All of the above shall be without abatement
of Rent and any such entry shall not be construed as a forcible or unlawful
entry, or a detainer, or an actual or constructive eviction of Tenant from
the Premises.
34. Signs. No sign, placard, picture, advertisement, name or notice shall be
------
inscribed, displayed, printed or affixed on or to any part of the outside
of the Premises or any exterior windows of the Premises or any interior
windows visible from common areas of the Building without the prior written
consent of Landlord, and Landlord shall have the right to remove the same
without notice to and at the expense of Tenant. If Tenant is allowed to
display a sign on or about the Premises, then at Landlord's option upon
expiration or other sooner termination of this Lease, Tenant shall at
Tenant's sole cost both remove such sign, repair all damage caused thereby
and restore the appearance of the Premises to its condition prior to the
placement of said sign. All approved signs (or lettering on outside doors)
shall be done at the expense of Tenant by a person approved of by Landlord.
35. Force Majeure. Neither Landlord nor Tenant shall be deemed in default of
-------------
the obligations under this Lease if performance is delayed or becomes
impossible because of delays caused by the fault or neglect of the other
party or because of acts of God, war (whether declared or undeclared),
earthquake, fire, labor strike, acts of public agencies, embargoes, stormy
or other adverse weather, riot, civil commotion, insurrection, blockade,
inability to obtain materials, supplies or fuels and such other
contingencies beyond the control of the performing party. Upon such an
event, the time for performance, shall be extended to reasonably allow
prompt performance, but in no event shall such extension be greater than
one hundred twenty (120) days beyond the original date for performance, in
which case, the party to whom the obligation is owed may
27
terminate this Lease by giving notice to the other party. This Paragraph 35
shall not be applicable to the payment of Rent or other monetary sums under
this Lease.
36. Miscellaneous.
-------------
A. Time is of the essence of this Lease, and each and all of its
provisions.
B. The term "Building" shall mean the building in which the Premises are
situated, and which is located at 0000 Xxxxxxx Xxxxx Xxxxxxxxx, Xxx
Xxxx, XX.
C. The term "Property" shall mean the real property on which the Premises
are situated and which is described on Exhibit A attached hereto.
D. The term "assign" shall include the term "transfer."
E. The invalidity or unenforceability of any provision of this Lease shall
not affect the validity or enforceability of the remainder of this
Lease.
F. All parties hereto have equally participated in the preparation of the
Lease.
G. The headings and title to the paragraphs of this Lease are not a part
of this Lease and shall have no effect upon the construction or
interpretation of any part thereof.
H. Landlord has made no representation(s) whatsoever to Tenant (express or
implied) except as may be expressly stated in writing in this Lease
instrument.
I. This instrument contains all of the agreement and conditions made
between the parties hereto, and may not be modified orally or in any
other manner than by agreement in writing, signed by all of the parties
hereto or their respective successors in interest.
J. It is understood and agreed that the remedies herein given to Landlord
shall be cumulative, and the exercise of any one remedy by Landlord
shall not be to the exclusion of any other remedy.
K. The covenants and conditions herein contained shall, subject to the
provisions as to assignment, apply to and bind the heirs, successors,
executors, administrators and assigns of all the parties hereto; and
all of the parties hereto shall jointly and severally be liable
hereunder.
L. This Lease has been negotiated by the parties hereto and the language
hereof shall not be construed for or against either party.
M. All exhibits to which reference is made are deemed incorporated into
this Lease, whether or not actually attached.
28
N. All provisions, whether covenants or conditions, on the part of
Landlord or Tenant shall be deemed to be both covenants and conditions.
O. This Lease shall in all respects be governed by, and construed and
enforced in accordance with the laws of the State of California.
37. Option Period.
-------------
A. So long as Tenant is not in default under this Lease, either at the
time of exercise or at the time the extended term commences, Tenant
shall have the option to extend the initial term of this Lease for one
(1) additional period of 3 years (the "option period") on the same
terms, covenants, and conditions of this lease, except that the
monthly rent during the option period will be determined pursuant to
paragraph 37.(B) and Tenant's proportionate share of Operating
Expenses and Taxes shall be recalculated if Tenant has taken
additional space in the Building. If Tenant elects to extend the Lease
Term, Tenant shall exercise its option by giving Landlord written
notice ("option notice") at least one hundred eighty (180) days prior
to the expiration of the initial term of this Lease. In the event
Tenant elects to extend the term of this Lease, Landlord shall, at its
sole cost and expense repaint the Premises and steam clean all carpets
in the Premises.
During the option period, the base year for purposes of calculating
adjustments to Operating Expenses shall be the actual operating
expenses for calendar year 1995 or calendar year 1992, whichever is
greater.
B. Option Period Basic Rent. The Basic Rent for he option period will be:
------------------------
Years 1-3 Monthly Rent $8,405.10
38. Tenant Right of First Refusal.
-----------------------------
So long as Tenant is not in default under this Lease, Tenant shall have the
right of first refusal and the right to lease Suite 340 of the Building
(approximately 1,000 square feet) as set forth below:
A. Expansion must take into account proper and legal exiting and code
restrictions for the expansion space.
B. The term for the expansion space shall be coterminous with the Term of
the Lease provided there is a minimum of one year remaining on the
Term.
C. Provided there is not less than 12 months remaining on the Lease term,
Landlord shall carpet the expansion suite to match the carpet in the
Premises.
D. In the event of a bonafide offer or letter of intent from a third
party tenant to lease the expansion space, Landlord shall notify
Tenant of such offer and Tenant shall have five (5) business days to
respond. If Tenant elects to exercise its right of first
29
refusal, Tenant shall agree to the effective rental rate and all
material terms of the third party offer or letter of intent except the
term which shall be as set forth in subparagraph (b) above. Any
increase in the cost of the tenant improvement. presented in the
bonafide offer or letter of intent and the actual cost of such tenant
improvements shall be amortized over the remaining lease term and paid
by Tenant as Additional Rent. Any decrease in the cost of the tenant
improvements presented in the bonafide offer or letter of intent and
the actual cost of such tenant improvements shall be amortized over
the remaining lease term and the Basic Rent shall be reduced over the
term of the Lease by such amortized amount.
If Tenant fails to respond to such third party offer or letter of
intent within five (5) business days, or if Tenant rejects such offer
or letter of intent, Landlord may proceed to lease such space to the
third party for the ensuing ninety (90) day period. If no lease is
signed within such ninety (90) day period or any of the material terms
of the third party offer are changed, Landlord shall present the offer
again to Tenant for Tenant's acceptance or refusal.
In the event Tenant elects to expand, an addendum to Lease will be
prepared stating new rent, improvements, term and security deposit
increase.
39. Tenant Improvements. Landlord shall, at Landlord's sole expense, provide a
-------------------
turn-key buildout of the Premises to accommodate Tenant's desired
configuration subject to acceptance of construction drawings by Landlord
and Tenant and further subject to all existing building codes, ordinances
and regulations currently in effect and obtaining building permits from the
City of San Xxxx.
When the final floor plan and specification for the Premises have been
agreed upon, they will be attached as Exhibit A-1 to this Lease. Landlord
agrees to improve the subject space in accordance with Exhibit A-1 as so
attached. Landlord represents and warrants that (i) all work to be
performed shall be performed in accordance with applicable laws, (ii) all
work to be performed shall be done in a good and workmanlike manner; (iii)
all materials shall be commercial grade approved by Tenant; (iv) Tenant
shall have the right to approve final drawings, material qualities, finish
schedules, and color boards; (v) Tenant shall have the right to inspect
work in progress (at Tenant's own risk) and to submit change orders. Tenant
shall pay any cost increase due to its requested change orders and shall
assume the responsibility for any delays caused by such change orders; (vi)
Tenant shall have the right to provide Landlord with a punchlist for all
items which remain to be completed after substantial completion and such
items shall be completed within thirty (30) days after Landlord receives
such list.
40. Brokerage Commission. Landlord warrants that it has dealt only with J.R.
--------------------
Xxxxxxx - Colliers International and Xxxxxxx & Xxxxxxxxx, Inc.
(collectively "Broker") pursuant to the terms of a separate leasing
commission agreement and shall be solely responsible for the payment of any
commission due thereunder. Each party hereto represents and warrants to the
other that it has not had any dealing with any real estate
30
brokers, leasing agents or salesmen (other than Broker) or incurred any
obligations for the payment of a real estate brokerage commission or
finder's fee which would be earned or due and payable by reason of the
execution of this Lease and each party agrees to indemnify, defend, and
hold harmless the other party from any claim for any commission or fees
which result from the actions of indemnifying party Tenant agrees and
acknowledges that Landlord shall pay a brokerage commission in connection
with exercising its right of first refusal or option to extend this Lease
only if Tenant acknowledges J.R. Xxxxxxx - Colliers International as
----
Tenant's broker of record at the time when the renewal or expansion occurs;
which commission shall be in an amount and on terms which are in accordance
with the Schedule of Commissions set forth in Landlord's listing agreement
with Xxxxxxx & Xxxxxxxxx. In the event Tenant is represented by any other
broker other than J.R. Xxxxxxx - Colliers International in connection with
exercising its right of first refusal or option to extend this Lease,
Tenant shall be solely responsible for the payment of any commission due to
such other broker.
41. Lease Guaranty. This obligations of Tenant under this Lease are and shall
--------------
be unconditionally and irrevocably personally guaranteed by Xxxxxx Xxxx
pursuant to the terms of that certain Guaranty of Lease of even date with
this Lease.
42. No Competitors. Landlord agrees that it will not lease any other space in
--------------
the Building to any permanent or temporary employment agencies. Tenant
acknowledges and agrees that Haldane, a current tenant in the Building is
not considered to be a competitor of Tenant.
31
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the
date first above written.
LANDLORD: TENANT:
0000 XXXXXXX XXXXX XXXXXXXXX STELLAR CORPORATION., a
JOINT VENTURE, a California California corporation d/b/a
General Partnership XXXXXXXX PERSONNEL SERVICES
By: XXXXXX/GSH QUALIFIED By: /s/ Xxxxxx Xxxx
PROPERTIES 80, a Virginia ------------------------------
Limited Partnership, Its XXXXXX XXXX, President
Managing General Partner
By: XXXXXX REAL ESTATE SERVICES,
INC., a Delaware Corporation,
Its Managing General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------
XXXXXXX XXXXXXXXX
Its: Vice President
The land referred to herein is described as follows:
All that certain real property in the City of San Xxxx, County of Santa Xxxxx,
State of California, described as follows:
Beginning at the point of intersection of the Westerly line of that certain
1.102 acre tract of land described as Parcel Four in the deed from Xxxxx & Price
Construction Co., A Partnership, et al, to the State of California, dated August
2, 1961, recorded August 24, 1961 in Book 5275 of Official Records, Page 108,
Santa Xxxxx County Records, with a line which is parallel with and distant
Southerly at right angles 15 feet from the Southerly line of Stevens Creek Road;
thence from said point of beginning along the said Westerly line of the 1.102
acre tract for the three following courses and distances: South 08 deg. 46' 27"
East 342.49 feet, South 02 deg. 51' 19" East 100.14 feet and South 0 deg. 07'
40" West 71.22 feet to the Southwesterly corner thereof in the Northeasterly
line of that certain 8.802 acre tract of land described as Parcel Three in the
deed to said State of California above referred to; thence North 55 deg. 58' 41"
West along the said Northeasterly line of said 8.802 acre tract of land
described as Parcel three in the deed to said State of California above referred
to, for a distance of 848.88 feet; thence along an arc of a curve to the right,
tangent to the preceding course, with radius of 20.00 feet, through a central
angle of 146 deg. 35' 44" for an arc distance of 51.17 feet; thence North 0 deg.
37' 03" East 5.00 feet to a point on a line which is parallel with and distant
Southerly at right angles 15 feet from the Southerly line of said Stevens Creek
Road; thence along last said parallel line South 89 deg. 22' 57" East 640 feet,
more or less, to the point of beginning.
EXHIBIT A
EXHIBIT B
RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be installed
or displayed on any part of the outside or inside of the Building outside
of the Premises without the prior written consent of the Landlord. Landlord
shall have the right to remove, at Tenant's expense and without notice, any
sign installed or displayed in violation of this rule. All approved signs
or lettering on doors and walls shall be printed, painted, affixed or
inscribed at the expense of Tenant by a person chosen by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades, screens or
hanging plants or other similar objects attached to or used in connection
with any window or door of the Premises, Tenant shall immediately
discontinue such use. No awning shall be permitted on any part of the
Premises. Tenant shall not place anything against or near glass partitions
or doors or windows which may appear unsightly from outside the Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exits, entrances,
elevators, or stairways of the Building. The halls, passages, exits,
entrances, elevators, and stairways are not open to the general public.
Landlord shall in all cases retain the right to control and prevent access
thereto of all persons whose presence in the judgment of Landlord would be
prejudicial to the safety, character, reputation and interest of the
Building and its tenants; provided that nothing herein contained shall be
construed to prevent such access to persons with whom any tenant normally
deals in the ordinary course of its business, unless such persons are
engaged in illegal activities. No tenant and no employee or invitee of any
tenant shall go upon the roof of the Building.
4. The directory of the Building will be provided exclusively for the display
of the name and location of Tenants only, and Landlord reserves the right
to exclude any other names therefrom.
5. All cleaning and janitorial services for the Building and the Premises
shall be provided exclusively through Landlord, and except with the written
consent of Landlord, no person or persons other than those approved by
Landlord shall be employed by Tenant or permitted to enter the Building for
the purpose of cleaning the same. Tenant shall not cause any unnecessary
labor by carelessness or indifference to the good order and cleanliness of
the Premises.
6. Landlord will furnish Tenant, free of charge, with two keys to each door
lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and
Tenant shall not alter any lock or install a new additional lock or bolt on
any door of its Premises. Tenant, upon the termination of its tenancy,
shall deliver to Landlord the keys of all doors which have been furnished
to Tenant, and in the event of loss of any keys so furnished, shall pay
Landlord therefor.
1
7. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall comply with all applicable building codes in their
installation.
8. Tenant shall not place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which
is allowed by law. Landlord shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the Building. Heavy objects shall, if considered necessary by
Landlord, stand on such platforms as determined by Landlord to be necessary
to properly distribute the weight. Business machines and mechanical
equipment belonging to Tenant, which cause noise or vibration that may be
transmitted to the structure of the Building or to any space therein to
such a degree as to be objectionable to Landlord or to any tenants in the
Building, shall be placed and maintained by Tenant, at Tenant's expense, on
vibration eliminators or other devices sufficient to eliminate noise or
vibration. The persons employed to move such equipment in or out of the
Building must be acceptable to Landlord. All damage done to the Building
by maintaining or moving such equipment or other property shall be repaired
at the expense of Tenant.
9. Tenant shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment.
Tenant shall not use or permit to be used in the Premises any foul or
noxious gas or substance, or permit or allow the Premises to be occupied or
used in a manner offensive or objectionable to Landlord or other occupants
of the Building by reason of noise, odors or vibrations. Tenant shall not
allow or keep any animals or pets of any kind on the Premises, except for
seeing-eye dogs which are for the direct purpose of aiding and assisting
the visually impaired.
10. Tenant shall not use any method of heating other than that supplied by
Landlord.
11. Tenant shall not waste electricity, water or air-conditioning and agrees to
cooperate fully with Landlord's reasonable requests to assure the most
effective operation of the Building's heating and air-conditioning and to
comply with any governmental energy-saving rules, laws or regulations of
which Tenant has actual notice, and shall refrain from attempting to adjust
controls other than room thermostats installed for Tenant's use. Tenant
shall keep doors to exterior corridors closed.
12. Landlord reserves the right to exclude from the Building between the hours
of 6:00 P.M. and 7:30 A.M. and at all hours on Saturdays, Sundays and legal
holidays, any person who, in Landlord's sole opinion, has no legitimate
business in the Building. Landlord shall in no event be liable for any
damages for any error with regard to the admission to, or exclusion from,
the Building of any person. In the event of invasion, mob, riot, public
excitement or other similar circumstances (as determined by Landlord in its
sole opinion) Landlord reserves the right to prevent access to the Building
during the continuance of the same by such action as Landlord may deem
appropriate, including locking doors.
2
13. Tenant shall see that the doors of the Premises are closed and locked and
that all water faucets and water apparatus are shut off before Tenant or
Tenant's employees leave the Premises, so as to prevent waste or damage. In
the event of any default or carelessness in this regard, Tenant shall be
liable for all injuries sustained by Landlord and other tenants or
occupants of the Building. Tenant shall keep the doors to the Building
corridors closed at all times except for ingress and egress.
14. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein.
The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees
or invitees, shall have caused it.
15. Except with the prior written consent of Landlord, Tenant shall neither
sell, nor permit the sale at retail of, newspapers, magazines, periodicals,
theater tickets or any other goods or merchandise to the general public in
or on the Premises, nor shall Tenant carry on, or permit to allow any
employee or other person to carry on, the business of stenography,
typewriting or any similar business in or from the Premises as a service or
accommodation to occupants of any other portion of the Building, nor shall
the Premises be used for any business or activity other than that
specifically provided for in the Lease.
16. Tenant shall not install any radio or television antenna, loudspeaker or
other devices on the roof or exterior walls of the Building without written
approval by Landlord. Tenant shall not interfere with radio or television
broadcasting or reception from or in the Building or elsewhere.
17. Tenant shall not xxxx, drive nails, screw or drill into the partitions,
woodwork or plaster or in any way deface the Premises or any part thereof
without the consent of Landlord. Tenant shall not affix any floor covering
to the floor of the Premises in any manner except as approved by Landlord.
Tenant shall repair any damage resulting from non-compliance with this
rule.
18. Tenant shall not install, maintain or operate upon the Premises any vending
machine (except for those vending machines indicated on the final approved
plan for the tenant improvements referred in paragraph 41 of the Lease)
without the written consent of Landlord.
19. Canvassing, soliciting and distribution of handbills or any other written
material, and peddling in the Building are prohibited, and each tenant
shall cooperate to prevent same.
20. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the influence
of liquor or drugs.
21. Tenant shall store all its trash and garbage within its Premises. Tenant
shall not place in any trash box or receptacle any material which cannot be
disposed of in the ordinary and
3
customary manner of trash and garbage disposal. All garbage and refuse
disposal shall be made in accordance with directions issued from time to
time by Landlord.
22. Tenant shall not allow a "fire sale" or bankruptcy sale or any auction to
be held on the Premises or allow the Premises to be used for the storage of
merchandise held for sale to the general public or for manufacturing of any
kind.
23. Tenant shall not use in any space or in the public halls of the Building
any hand truck except those equipped with rubber tires and side guards or
such other material-handling equipment as Landlord may approve. Tenant
shall not bring any other vehicles of any kind, other than bicycles, into
the Building.
24. Without the written consent of Landlord, Tenant shall not use the name of
the Building in connection with or in promoting or advertising the business
of Tenant except as Tenant's address.
25. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
26. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
27. The requirements of Tenant will be attended to only upon appropriate
application to the office of the Building by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of
their regular duties unless under special instructions from Landlord, and
no employee of Landlord will admit any person (Tenant or otherwise) to any
office without specific instructions from Landlord.
28. Tenant shall not park its vehicles in any parking areas designated by
Landlord as areas for parking by visitors to the Building. Tenant shall not
store vehicles in the Building parking areas nor park any vehicles in the
Building parking areas other than automobiles, motorcycles, motor driven or
non-motor driven bicycles or four-wheel trucks.
29. Landlord may waive any one or more of these Rules and Regulations for the
benefit of Tenant or any other tenant, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations in favor of Tenant
or any other tenant, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all of the tenants of the
Building.
30. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of premises in the Building. In the
event of any conflict, between the terms of any lease and these Rules and
Regulations, the terms of the lease shall control.
4
31. Landlord reserves the right to make such other and reasonable and uniform
Rules and Regulations as, in its judgment, may from time to time be needed
for safety and security, for care and cleanliness of the Building and for
the preservation of good order therein. Tenant agrees to abide by all such
Rules and Regulations hereinabove stated and any such additional rules and
regulations which are adopted.
32. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and
guests.
5
MEMORANDUM OF COMMENCEMENT DATE
-------------------------------
Landlord: 0000 Xxxxxxx Xxxxx Xxxxxxxxx Joint Venture
Tenant: Stellar Corporation, a California corporation,
d/b/a Xxxxxxxx Personnel Services
Premises: Approximately 3,094 net rentable square feet of office space on
the 3rd floor of that Building commonly known as 0000 Xxxxxxx
Xxxxx Xxxxxxxxx, Xxx Xxxx, Xxxxxxxxxx.
Addendum Date: April 17, 1992
Pursuant to Article 2 of the above referenced lease, the Commencement Date is
hereby established as June 5, 1992.
------------
Landlord
--------
0000 XXXXXXX XXXXX XXXXXXXXX
JOINT VENTURE, a California General Partnership
By: XXXXXX/GSH QUALIFIED PROPERTIES 80,
a Virginia Limited Partnership, Its Managing
General Partner
By: XXXXXX REAL ESTATE SERVICES, INC.,
a Delaware corporation, Its Managing General
Partner
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------
XXXXXXX XXXXXXXXX
Its: Vice President
Tenant
------
STELLAR CORPORATION,
a California corporation d/b/a XXXXXXXX PERSONNEL
SERVICES
By: /s/ Xxxxxx Xxxx
------------------
XXXXXX XXXX, President
MEMORANDUM OF COMMENCEMENT DATE
-------------------------------
Landlord: 0000 Xxxxxxx Xxxxx Xxxxxxxxx Joint Venture
Tenant: Stellar Corporation, a California corporation
Premises: Expansion Area of approximately 1,205 net rentable square feet of
office space on the 3rd floor of that Building commonly known as
0000 Xxxxxxx Xxxxx Xxxxxxxxx, Xxx Xxxx, Xxxxxxxxxx.
Addendum Date: December 22, 1993
Pursuant to Article 2 of the above referenced Addendum., the Commencement Date
is hereby established as January 15, 1994.
----------------
Landlord
--------
0000 XXXXXXX XXXXX XXXXXXXXX
JOINT VENTURE, a California General Partnership
By: XXXXXX/GSH QUALIFIED PROPERTIES 80, a
Virginia Limited Partnership, Its Managing
General Partner
By: XXXXXX REAL ESTATE SERVICES, INC.,
a Delaware Corporation, Its Managing General
Partner
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------
XXXXXXX XXXXXXXXX
Its: Vice President
Tenant
------
STELLAR CORPORATION, a California
corporation
By: /s/ Xxxxxx Xxxx
------------------
XXXXXX XXXX, President
FIRST ADDENDUM TO LEASE
-----------------------
This Addendum is hereby made a part of that certain "Office Lease" (the "Lease")
dated April 17, 1992 by and between 0000 Xxxxxxx Xxxxx Xxxxxxxxx Joint Venture,
("Landlord"), and Stellar Corporation, a California corporation, ("Tenant"), for
the premises located at 0000 Xxxxxxx Xxxxx Xxxxxxxxx, Xxx Xxxx, Xxxxxxxxxx,
Suite 320. The First Addendum to Lease is dated this 22nd day of December
1993 solely as hereinafter described.
Tenant has indicated a desire to lease additional space in the building and
Landlord has agreed to lease this additional space to Tenant on the following
terms and conditions:
1. Additional Premises:
-------------------
The additional premises consists of Suite 360 containing approximately 1,205 net
rentable square feet of space on the 3rd floor (approximately 1,076 usable
square feet plus a twelve percent (12%) load factor) (the "Expansion Area").
The Expansion Area is contiguous to Suite 320, which is currently occupied by
Tenant.
Total Premises:
Original Lease 5,094 rentable sq. ft.
Addendum #1 1,205 rentable sq. ft.
Total Rentable Area 6,299 rentable sq. ft.
2. Term:
----
The term of the Lease as it applies to the Expansion Area shall commence upon
the substantial completion of the tenant improvements, now estimated to occur on
January 1, 1994, or on the date Landlord notifies Tenant that the Expansion Area
is ready for occupancy, whichever is later. Provided, however, that if Tenant
makes changes to the Construction Documents prepared by Ambiance Associates
dated November 5, 1993, Job No. 3384 as approved by Tenant which delay the
completion of the improvements, or if the Tenant, its employees, contractors,
agents, or invitees in any way delay Landlord from completing the improvements
as outlined in the Construction Documents, then the Lease term for the Expansion
Area shall commence upon the earlier of substantial completion or the date the
improvements would have been completed but for such changes or delays. The term
of the Lease for the Premises and the Expansion Area shall terminate 36 months
after the commencement of the Lease for the Expansion Space.
3. Basic Rent:
----------
The rental rate for the Original Space and the Expansion Space shall be as
follows:
Original Space: 5,094 rentable square feet
$1.55 per square foot, per month for the
remaining term of the lease
Stellar Corporation
First Addendum
Page Two
Expansion Space: 1,205 rentable square feet
Months 1-2, Free Rent
Months 3-36, $1.55 per square foot
4. Operating Expenses:
------------------
Tenant's percentage operating expenses and taxes for the Expansion Area, shall
be 1.4%. The Original Space percentage for operating expenses and taxes is
6.0%, and the total is 7.4%.
5. Tenant Improvements:
-------------------
Landlord will provide Tenant with a turnkey buildout based on Ambiance
Associates Construction Documents dated November 5, 1993, Job. No. 3384 as
approved by Tenant.
6. Recarpet and Paint:
------------------
In January 1995, Landlord will provide Tenant with an allowance of $3.51 per
square foot for the entire square footage (6,299) for repainting and recarpeting
portions of Tenant's suite due to wear and tear.
Except as expressly provided hereunder, all other terms and conditions of said
Lease, including Memorandum of Lease and Riders, shall remain in full force and
effect.
10
Stellar Corporation
First Addendum
Page Three
IN WITNESS WHEREOF, LANDLORD AND TENANT have executed this Addendum as of the
date of the first written above.
LANDLORD: TENANT:
0000 Xxxxxxx Xxxxx Xxxxxxxxx Stella Corporation, a
Joint Venture, a California California corporation
General Partnership
By: Xxxxxx/GSH Qualified Properties 80, By: /s/ Xxxxxx Xxxx
a Virginia Limited Partnership, Its -------------------------
Managing General Partner Xxxxxx Xxxx
Its: CEO
By: Xxxxxx Real Estate Services, Inc.,
a Delaware Corporation, Its
Managing General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxxxx
Vice President
MEMORANDUM OF COMMENCEMENT DATE
-------------------------------
Landlord: 0000 Xxxxxxx Xxxxx Xxxxxxxxx Joint Venture
Tenant: Xxxx-Xxxxxx and Associates, Inc., a California Corporation
Premises: Expansion Area of approximately 3,100 net rentable square feet of
office space on the 4the floor, Suite 450, of that Building
commonly known as 0000 Xxxxxxx Xxxxx Xxxxxxxxx, Xxx Xxxx,
Xxxxxxxxxx.
Addendum Date: May 17, 1995
Pursuant to Article 2 of the above referenced Addendum, the Commencement Date is
hereby established as August 16, 1995.
Landlord
--------
0000 XXXXXXX XXXXX XXXXXXXXX
JOINT VENTURE, a California General Partnership
By: QUALIFIED PROPERTIES 80, a
Virginia Limited Partnership, Its Managing
General Partner
By: REAL ESTATE SERVICES, INC.,
a Delaware Corporation, Its Managing General
Partner
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------
XXXXXXX XXXXXXXXX
Its: Vice President
Tenant
------
XXXX-XXXXXX AND ASSOCIATES, INC.,
a California Corporation
By: /s/ Xxxxx Xxxxxx
-------------------
Xxxxx Xxxxxx
Its: CFO
SIGNAGE AGREEMENT
Should any tenant who currently has building signage either vacate the building
or relinquish their rights to the signage, Xxxx-Xxxxxx and Associates, Inc. will
have the first option to install a sign on one side of the building at their
sole cost and expense.
Any signage is subject to Landlord's approval and must comply with any City
requirements and approvals.
Except as expressly provided hereunder, all other terms and conditions of said
Lease, including Amendments to the Lease, Memorandum of Lease and Riders, shall
remain in full force and effect.
LANDLORD: TENANT:
0000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxx-Xxxxxx and Associates, Inc., a
Joint Venture, a California California corporation
General Partnership
By: Qualified Properties 80, By: /s/ Xxxxx Xxxxxx
a Virginia Limited Partnership, Its ---------------------------------
Managing General Partner Xxxxx Xxxxxx
Its: CFO
By: Real Estate Services, Inc.,
a Delaware Corporation, Its
Managing General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxxxx, Vice President
SECOND ADDENDUM TO LEASE
------------------------
This Addendum is hereby made a part of that certain "Office Lease" (the "Lease")
dated April 17, 1992 by and between 0000 Xxxxxxx Xxxxx Xxxxxxxxx Joint Venture,
("Landlord"), and Xxxx-Xxxxxx And Associates, Inc., a California corporation,
successor corporation to Stellar Corporation, a California corporation,
("Tenant"), for the premises located at 0000 Xxxxxxx Xxxxx Xxxxxxxxx, Xxx Xxxx,
Xxxxxxxxxx, Suite 320. The Second Addendum to Lease is dated this 17th day of
May 1995 solely as hereinafter described.
Tenant has indicated a desire to lease additional space in the building and
Landlord has agreed to lease this additional space to Tenant on the following
terms and conditions:
1. Additional Premises:
-------------------
The additional premises consists of Suite 450 containing approximately 3,100 net
rentable square feet of space on the 4th floor (approximately 2,686 usable
square feet plus a fifteen percent (15%) load factor) (the "Expansion Area").
Total Premises:
Original Lease 5,094 rentable sq.ft.
Addendum #1 1,205 rentable sq.ft. ("1st Expansion Space")
Addendum #2 3,100 rentable sq.ft. ("2nd Expansion Space")
Total Rentable Area 9,399 rentable sq.ft.
2. Term:
----
The term of the Lease as it applies to the 2nd Expansion Space shall commence
upon the substantial completion of the tenant improvements, now estimated to
occur on July 1, 1995, or on the date of occupancy by the Tenant, whichever is
earlier. However, if Tenant makes changes to the Construction Documents which
delay the completion of the improvements, or if the Tenant, its employees,
contractors, agents, or invitees in any way delay Landlord from completing the
improvements as outlined in the Construction Documents, then the Lease term for
the 2nd Expansion Space shall commence upon the earlier of substantial
completion or the date the improvements would have been completed but for such
changes or delays.
The term of the Lease for the Premises, the 1st Expansion Space and the 2nd
Expansion Space shall terminate 36 months after the commencement of the Lease
for the 2nd Expansion Space, now estimated to occur July 1, 1995. Both parties
will execute a commencement memorandum to memorialize the commencement date of
the 2nd Expansion Space.
Stellar Corporation
Second Addendum
Page Two
3. Basic Rent:
-----------
The rental rate for the Original Space, 1st Expansion Space and the 2nd
Expansion Space shall be as follows:
Original Space and 1st Expansion Space:
6,299 rentable square feet
$1.55 per square foot, per month until 1/14/97
$1.65 per square foot per month 1/14/97 to end of term
Expansion Area:
3,100 rentable square feet
Months 1-36, $1.65 per square foot per month
4. Operating Expenses:
------------------
Tenant's percentage operating expenses and taxes for the 2nd Expansion Space,
shall be 3.7%. The operating expense base year for the Expansion Area shall be
1995.
The Original Space and 1st Expansion Area operating percentage and base year
shall remain as in the original Lease and First Amendment.
5. Tenant Improvements
-------------------
Landlord will provide Tenant with a tenant improvement allowance of up to $9.68
per square foot on the 2nd Expansion Space ($30,000) to modify the premises in
accordance with the attached floor plan utilizing building standard materials.
This allowance shall include the cost of permit and construction. Should there
be a change of the attached plan which affects the scope of work. Landlord
reserves the right to review and approve any modifications.
Except as expressly provided hereunder, all other terms and conditions of said
Lease, including First Amendment to Lease, Memorandum of Lease and Riders, shall
remain in full force and effect.
Stellar Corporation
Second Addendum
Page Three
IN WITNESS WHEREOF, LANDLORD AND TENANT have executed this Addendum as of the
date of the first written above.
LANDLORD: TENANT:
0000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxx-Xxxxxx And Associates, Inc., a
Joint Venture, a California California corporation
General Partnership
By: Qualified Properties 80, By: /s/ Xxxxxx Xxxx
a Virginia Limited Partnership, Its --------------------------------
Managing General Partner Xxxxxx Xxxx
Its: CEO
By: Real Estate Services, Inc.
a Delaware Corporation, Its
Managing General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Xxxxxxx Xxxxxxxxx
Vice President
SIGNAGE AGREEMENT
Should any tenant who currently has building signage either vacate the building
or relinquish their rights to the signage, Xxxx-Xxxxxx and Associates, Inc. will
have the first option to install a sign on one side of the building at their
sole cost and expense.
Any signage is subject to Landlord's approval and must comply with any City
requirements and approvals.
Except as expressly provided hereunder, all other terms and conditions of said
Lease, including Amendments to the Lease, Memorandum of Lease and Riders, shall
remain in full force and effect.
LANDLORD: TENANT:
0000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxx-Xxxxxx and Associates, Inc., a
Joint Venture, a California California corporation
General Partnership
By: Qualified Properties 80, By: /s/ Xxxxx Xxxxxx
a Virginia Limited Partnership, Its --------------------------------
Managing General Partner Xxxxx Xxxxxx
Its: CFO
By: Real Estate Services, Inc.,
a Delaware Corporation, Its
Managing General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxxxx, Vice President
