Exhibit 10.16
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT ("Sublease") is dated as of the 23rd day of
February, 1999, by and between ELECTRONICS FOR IMAGING, INC., a Delaware
corporation ("Sublessor"), and KEYNOTE SYSTEMS, INC., a California
corporation ("Sublessee").
A. Sublessor, as Tenant, and The Xxxxxx and Xxx Xxxx Revocable
Trust, as Landlord ("Master Landlord"), previously entered into that certain
Agreement of Lease, dated July 30, 1992 ("Original Lease"), which has been
amended by that certain First Addendum to Lease dated July 30, 1992 ("First
Addendum"), that certain Second Addendum to Lease dated April 1, 1993
("Second Addendum"), that certain Third Addendum to Lease dated May 20, 1993
("Third Addendum"), that certain Fourth Addendum to Lease dated May 25, 1993
("Fourth Addendum"), that certain Fifth Addendum to Lease dated July 12, 1994
("Fifth Addendum"), that certain Sixth Addendum to Lease dated January 19,
1995 ("Sixth Addendum"), and that certain Seventh Addendum to Lease dated
December 4, 1996 ("Seventh Addendum") (collectively, the "Master Lease").
Under the Master Lease, Sublessor leases from Master Landlord approximately
forty-nine thousand seven hundred seventy-nine (49,779) rentable square feet
("Master Premises") on the first and second floors of the building located at
0000 Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx ("Building"). A copy of the Master
Lease is attached hereto as EXHIBIT A. Capitalized terms used but not
defined herein shall have the meanings given them under the Master Lease.
B. Sublessor desires to sublease a portion of the Master Premises to
Sublessee, and Sublessee desires to sublease a portion of the Master Premises
from Sublessor, on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Sublessor and Sublessee agree
as follows:
1. SUBLEASE PREMISES. Upon and subject to the terms and conditions
of this Sublease, Sublessor hereby subleases to Sublessee and Sublessee
hereby subleases from Sublessor that portion of the Master Premises
identified on the floor plan attached hereto as EXHIBIT B ("Sublease
Premises") and incorporated herein by this reference. The Sublease Premises
are located on the second floor of the Building. Sublessor and Sublessee
hereby stipulate that the Sublease Premises contain twenty-four thousand
eight hundred eighty-nine (24,889) rentable square feet ("RSF") , which is
approximately fifty percent (50%) of the Master Premises.
1.1 AS-IS. The Sublease Premises shall be delivered to
Sublessee in "AS-IS AND WITH ALL FAULTS" condition and without any
representations or warranties, express or implied, with respect thereto by
Sublessor or any of Sublessor's directors, officers, shareholders, employees,
agents or representatives ("Sublessor's Representatives") ; provided,
however, that Sublessor shall clean the carpets in the Sublease Premises upon
Sublessor vacating the Sublease Premises and shall deliver the Sublease
Premises to Sublessee in a "broom-clean" condition. Specifically, neither
Sublessor nor any of Sublessor's Representatives has made, or hereby
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makes, any representation or warranty concerning the compliance of the
Sublease Premises or the Building with the American with Disabilities Act, 42
U.S.C. Section 12101 et. seq. ("ADA"), Title 24 of the California
Administrative Code ("Title 24") or any other similar federal, state or local
laws, statutes, ordinances, codes, regulations, rules, orders, actions,
policies or decrees pertaining to the accessibility of business
establishments to persons with disabilities.
2. TERM. Although it is anticipated that the term of this Sublease
shall commence upon April 1, 1999 ("Scheduled Commencement Date") , the term
of this Sublease shall formally commence on the earlier of: (i) the date on
which Sublessee takes possession of the Sublease Premises if such date is
prior to the Scheduled Commencement Date; (ii) the Scheduled Commencement
Date if on such date the term has not already commenced and Sublessor tenders
possession of the Sublease Premises to Sublessee on or prior to the Scheduled
Commencement Date; and (iii) such date subsequent to the Scheduled
Commencement Date on which Sublessor tenders possession of the Sublease
Premises to Sublessee if on such date the term has not already commenced (the
earlier date being the "Commencement Date"). The term of this Sublease shall
end on June 30, 2000 ("Expiration Date"), unless sooner terminated pursuant
to this Sublease.
2.1 POSSESSION. Notwithstanding any provision of this
Sublease, if for any reason Sublessor cannot deliver possession of the
Sublease Premises to Sublessee on the Scheduled Commencement Date, Sublessor
shall not be subject to any liability therefor, nor shall such failure affect
the validity of this Sublease or the obligations of Sublessee hereunder or
extend the term hereof, but in such case Sublessee shall not be obligated to
pay rent until possession of the Sublease Premises is tendered to Sublessee.
If Sublessor has not delivered possession of the Sublease Premises to
Sublessee within sixty (60) days after the Scheduled Commencement Date,
Sublessee may, at its election, by notice in writing to Sublessor within ten
(10) days after such sixty (60) day period, cancel this Sublease, in which
event Sublessor shall return all sums deposited by Sublessee with Sublessor,
and neither party shall have any further liability to the other and both
parties shall be discharged from all obligations hereunder. If Sublessee
occupies the Sublease Premises prior to the Scheduled Commencement Date, such
occupancy shall be subject to this Sublease, and Sublessee shall commence
paying Rent upon such occupancy pursuant to Section 4 below. Any such early
occupancy shall not advance the Expiration Date.
2.2 NO RENEWAL, EXTENSION OR EXPANSION RIGHTS. To the extent
that Sublessor has not previously exercised such rights, Sublessor and
Sublessee shall not exercise any renewal, extension or expansion rights
pertaining to the Sublease Premises under the Master Lease.
3. USE. The Sublease Premises shall be used and occupied by
Sublessee solely in a manner and for the uses permitted under the Master
Lease and for no other purpose. Sublessee, at its sole cost and expense,
shall promptly comply with all federal, state and local laws, statutes,
ordinances, codes, regulations, rules, orders, actions, policies or decrees
now or hereinafter in effect ("Laws"), including, without limitation, the
ADA, Title 24 and similar Laws pertaining to the accessibility of business
establishments to persons with disabilities. Sublessee shall not do or
permit to be done in or about the Sublease Premises or Building, nor bring or
keep anything
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therein, which will in any way increase the existing rate of or affect any
fire or other insurance upon the Building or the Sublease Premises or any of
its contents, or cause cancellation of any insurance policy covering the
Building or the Sublease Premises or any part thereof. Sublessee shall
comply with the provisions of Section 28 of the Original Lease and shall
defend, indemnify and hold Master Landlord and Sublessor harmless pursuant
thereto. Sublessee shall not use or permit the use of the Sublease Premises
in any manner that will tend to create waste or a nuisance or which will tend
to disturb other tenants of the Building.
4. RENT.
4.1 BASE RENT. Beginning on the Commencement Date and
continuing thereafter during the term of this Sublease, Sublessee shall pay
to Sublessor a base rent of Seventy-Three Thousand Nine Hundred Twenty and
33/100 Dollars per month ($73,920.33/month) ("Base Rent").
4.2 ADDITIONAL RENT. In addition to Base Rent, beginning on
the Commencement Date and continuing thereafter during the term of this
Sublease, Sublessee shall pay to Sublessor an amount equal to Six Thousand
Four Hundred Seventy-One and 14/100 Dollars per month ($6,471.14/month)
("Additional Rent") as Sublessee's contribution towards any Project Taxes and
Operating Expenses in excess of Base Year Project Taxes and Operating
Expenses (as those terms are defined under the Master Lease) payable by
Sublessor under the Master Lease and any over-standard electrical charges
payable by Sublessor under Section 4 of the Seventh Addendum. In
clarification of the immediately preceding sentence, the Six Thousand Four
Hundred Seventy-One and 14/100 Dollars per month ($6471.14/month) is the
full, entire and only amount that Sublessee shall be required to pay to
anyone with respect to Project Taxes and operating Expenses during the term
of this Sublease. In addition, Sublessee shall reimburse Sublessor for any
late fees, charges or penalties, after-hour services fees or charges, or
other fees, charges or penalties imposed under the Master Lease with respect
to the Sublease Premises (other than excess Project Taxes and Operating
Expenses and over-standard electrical charges imposed under Section 4 of the
Seventh Addendum), except to the extent such are due solely to the fault of
Sublessor, and any electrical service charges due to after-hours services.
Except as provided in Section 4.4 below, Additional Rent shall be payable
monthly. Base Rent, Additional Rent and any other rental items payable by
Sublessee to Sublessor under this Sublease are collectively referred to
herein as "Rent".
4.3 PRORATIONS. The Rent for any period during the term of
this Sublease which is less than one month shall be a prorata portion of the
Rent for such month.
4.4 PAYMENT OF RENT. Except as otherwise specifically provided
in this Sublease, Rent shall be payable in lawful money without demand,
offset, deduction, counterclaim or setoff, in monthly installments, in
advance, on the first day of each month during the term of this Sublease.
All Rent is to be paid to Sublessor at its office at the address set forth in
Section 19.1 below, or at such other place as Sublessor may designate by
notice to Sublessee. To the extent any Rent is payable on account of items
which are not payable monthly by Sublessor to Master Landlord under the
Master Lease, such amounts shall be paid to Sublessor as
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and when such items are payable by Sublessor to Master Landlord under the
Master Lease unless otherwise provided herein. Upon written request by
Sublessee, Sublessor agrees to provide Sublessee with copies of any
statements or invoices received by Sublessor from Master Landlord pursuant to
the terms of the Master Lease.
4.5 ADVANCE RENT. Concurrently with the execution of this
Sublease, Sublessee shall pay to Sublessor the sum of Eighty Thousand Three
Hundred Ninety-One and 47/100 Dollars ($80,391.47) ("Advance Rent") , which
Advance Rent shall be applied by Sublessor toward the Base Rent for the first
month of the Sublease.
5. SECURITY DEPOSIT. In addition to the Advance Rent and within
seven (7) days after the execution of this Sublease, Sublessee shall deliver
to Sublessor an unconditional and irrevocable letter of credit in favor of
Sublessor, drawn upon Silicon Valley Bank in a form reasonably acceptable to
Sublessor, for the principal sum of One Hundred Sixty Thousand Seven Hundred
Eighty-Two Dollars ($160,782) ("Deposit") as security for Sublessee's
faithful performance of Sublessee's obligations hereunder. If Sublessee
faithfully performs all of Sublessee's obligations under this Sublease, then
on or after April 1, 2000, Sublessee may elect to reduce the principal amount
of the letter of credit to Eighty Thousand Three Hundred Ninety-One Dollars
($80,391). Upon Sublessee exercising such right, the term "Deposit" shall
mean such reduced principal amount. If any letter of credit held by
Sublessor will expire prior to the Expiration Date, and it is not extended or
a new letter of credit is not substituted within thirty (30) days prior to
the expiration date of the letter of credit then held by Sublessor, then
Sublessor shall be entitled to draw the entire amount of the letter of credit
then held by Sublessor and hold such funds in accordance with this Section 5
until the Expiration Date. At any time that Sublessee fails to pay Rent or
any other amounts due hereunder, or otherwise defaults with respect to any
provision of this Sublease or the Master Lease, Sublessor shall be entitled
to draw the entire amount of any letter of credit then held by Sublessor and
use, apply or retain all or any portion of the Deposit for the payment of
such amounts or for the payment of any other amount to which Sublessor may
become obligated by reason of Sublessee's default, or to compensate Sublessor
for any loss or damage which Sublessor may suffer thereby. If Sublessor so
uses or applies all or any portion of the Deposit, Sublessee shall within ten
(10) days after written demand therefor deposit cash with Sublessor in an
amount sufficient to restore the Deposit to the full amount hereinabove
stated and Sublessee's failure to do so shall be a material breach of this
Sublease. Sublessor shall not be required to keep the Deposit separate from
its general accounts. If Sublessee faithfully performs all of Sublessee's
obligations hereunder, any letter of credit then held by Sublessor pursuant
to this Section 5 or if Sublessor has drawn upon such letter of credit
pursuant to this Section 5, the Deposit, or so much thereof as has not been
previously applied by Sublessor, shall be returned, without payment of
interest or other increment for its use, to Sublessee at the expiration of
the term hereof and after Sublessee has vacated the Sublease Premises. No
trust relationship is created herein between Sublessor and Sublessee with
respect to said letter of credit or Deposit.
6. PARKING. Sublessee shall have the non-exclusive right to use
fifty percent (50%) of the reserved and non-reserved parking spaces available
for use by Sublessor under the Master Lease.
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7. SIGNS. To the extent Sublessee desires to erect, install or
utilize any signs, it shall do so only in accordance with the Master Lease
and at its sole cost and expense. Further, to the extent that any exterior
or public area signage available under the Master Lease is of a limited
nature, such signage shall be shared equally between the Sublease Premises
and the remainder of the Master Premises; provided, however, that under no
circumstances shall Sublessor be obligated to remove or modify Sublessor's
existing monument signage located at the intersection of the driveway to the
Building and Campus Drive prior to Sublessor vacating all of the Master
Premises.
8. MASTER LEASE.
8.1 INCORPORATION OF MASTER LEASE. To the extent applicable to
the Sublease Premises, the Master Lease is incorporated into this Sublease in
its entirety as if fully set forth herein, except that the following
provisions thereto are expressly excluded in their entirety from the
Sublease: (i) Sections 2, 3, 20 and 31 of, and Exhibit B to, the Original
Lease; (ii) Sections 1, 3, 7, 8, 20, 21, 22, 23 and 24 of the First Addendum;
(iii) Sections 20 and 22 of, and Exhibit B to, the Third Addendum; (iv)
Sections 20 and 22 of, and Exhibit B to, the Fourth Addendum; (v) Sections 20
and 22 of the Fifth Addendum; (vi) Sections 20 and 22 of the Sixth Addendum;
and (vii) Sections 3 and 4 of the Seventh Addendum. Notwithstanding the
immediately preceding sentence, if Sublessee "holds-over", then in addition
to those provisions of the Master Lease incorporated pursuant to the
immediately preceding sentence, the following provisions shall be
incorporated into this Sublease as if fully set forth herein and Sublessee
shall be solely responsible for all amounts payable by Sublessor to Master
Landlord under the Master Lease: (a) Sections 3 and 20 of the Original
Lease; (b) Sections 7 and 8 of the First Addendum; (c) Section 20 of each of
the Third Addendum, Fourth Addendum, Fifth Addendum and Sixth Addendum; and
(d) Sections 3 and 4 of the Seventh Addendum. If any provision of this
Sublease expressly conflicts with any provision of the Master Lease as
incorporated herein, the terms of this Sublease shall govern. Sublessee
shall assume and perform for the benefit of Sublessor and Master Landlord the
Tenant's obligations under the Master Lease provisions incorporated herein to
the extent that the provisions are applicable to the Sublease Premises.
Whenever the Master Lease requires the approval or consent of Master
Landlord, Sublessee shall be required to obtain the approval or consent of
both Sublessor and Master Landlord. Whenever the Master Lease requires
Tenant to submit, exhibit to, supply or provide Master Landlord with
evidence, certificates, or any other matter or thing, Sublessee shall submit,
exhibit to, supply or provide, as the case may be, the same to both Master
Landlord and Sublessor. In any such instance, Sublessor shall reasonably
determine if such evidence, certificate or other matter or thing shall be
satisfactory. Sublessee acknowledges that it has reviewed the Master Lease
and is familiar with the terms and conditions thereof. Neither Sublessor nor
Sublessee shall do or permit to be done anything which would constitute a
violation or breach of any of the terms or conditions of the Master Lease, or
which would cause the Master Lease to be terminated or forfeited.
8.2 DIRECT PERFORMANCE. At any time and on reasonable prior
notice to Sublessee, Sublessor may elect to require Sublessee to perform its
obligations under this
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Sublease directly to Master Landlord, in which event Sublessee shall promptly
send to Sublessor copies of all notices and other communications between
Sublessee and Master Landlord.
9. PERFORMANCE BY SUBLESSOR/STATUS OF MASTER LANDLORD.
Notwithstanding any other provision of the Master Lease or this Sublease,
Sublessee acknowledges and agrees that performance by Sublessor is
conditioned in all cases upon Master Landlord's performance of its
corresponding obligations under the Master Lease, and performance by Master
Landlord shall be deemed performance by Sublessor. Sublessor does not assume
the obligations of the Master Landlord under the Master Lease. Sublessor
shall not be liable to Sublessee for any default or other failure of the
Master Landlord under the Master Lease. Despite any default or other failure
by Master Landlord under the Master Lease, this Sublease shall remain in full
force and effect, and Sublessee' shall pay all Rent and other amounts due
under this Sublease without any abatement, deduction, counterclaim or offset;
provided, however, in the event of a default by Master Landlord under the
Master Lease involving the failure to provide utilities, elevator services,
HVAC services or other base-building services which renders the Sublease
Premises not useable for commercial purposes, Sublessee shall be entitled to
xxxxx Rent during the period that the Sublease Premises are so rendered not
useable for commercial purposes. With respect to work, services, repairs,
repainting, restoration, the provision of utilities, elevator or HVAC
services, or the performance of other obligations required of Master Landlord
under the Master Lease, Sublessor's sole obligation with respect thereto
shall be to request the same from Master Landlord, upon written request by
Sublessee. Sublessee shall contact Master Landlord first to obtain the
desired service or item and shall only contact Sublessor if Master Landlord
fails to perform pursuant to the Master Lease.
10. FURNITURE. As further consideration for and as a condition
precedent to this Sublease, Sublessee agrees to purchase from Sublessor, and
Sublessor agrees to sell to Sublessee, One Hundred Twenty-Nine (129) cubicles
currently located in the Sublease Premises and the in-place wiring therefor
(collectively, the "Cubicles") for the amount of Seventy-Seven Thousand Four
Hundred Dollars ($77,400) (129 cubicles * $600 per cubicle), which amount
shall be due and payable one (1) day prior to the Commencement Date. The
Cubicles are part of a Harpers cubicle system, a typical cubicle of which is
comprised of two (2) corner sections and one (1) straight section, a chair, a
pencil drawer and two overhead files, and is wired for four CAT 5 (data) and
one split CAT 3 (voice) connections. Sublessee acknowledges that neither
Sublessor nor Sublessor's Representatives have made, or hereby makes, any
representation or warranty, written or oral, statutory, express or implied,
as to any matter whatsoever, with respect to the Cubicles, including, without
limitation, the design, quality, capacity, material, workmanship, operation,
condition, merchantability or fitness for a particular purpose.
11. ALTERATIONS. Sublessee shall be solely responsible for all
costs and expenses associated with any improvements and alterations to the
Sublease Premises (collectively, "Alterations"). All Alterations shall be
subject to Sublessor's prior written approval, which approval shall not be
unreasonably withheld. Sublessee shall give Master Landlord at least ten
(10) days prior written notice before undertaking any Alterations to enable
Master Landlord, in its sole discretion, to post and record notices of
nonresponsibility. Sublessee shall, at all times, keep the Sublease Premises
and the Building free and clear of all mechanic's or
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materialman's liens relating to or arising from any Sublessee Alterations.
If any mechanic's or materialman's lien arising from Sublessee's Alterations
is filed and/or recorded against the Sublease Premises or the Building,
Sublessee shall cause such lien to be released and removed within ten (10)
days of such filing and/or recording, either by satisfaction or by the
posting of a release bond in the amount required by statute, and if Sublessee
fails to do so, then Master Landlord or Sublessor may do so at Sublessee's
sole cost and expense. Sublessee acknowledges that it is not authorized to
undertake any Alterations in or to the Sublease Premises except as permitted
under this Sublease and the Master Lease and that it must deliver the
Sublease Premises to Sublessor on the Expiration Date in the condition
required under the Master Lease.
12. ASSIGNMENT AND SUBLETTING. Sublessee shall not assign the
Sublease or sublease all or any portion of the Sublease Premises without the
prior written consent of Sublessor, which consent shall not be unreasonably
withheld. Sublessor may grant its consent on reasonable conditions,
including, without limitation, those set forth in the Master Lease. Any such
assignment or subletting without Sublessor's reasonable consent shall be void
and, at the option of Sublessor, Sublessor may terminate the Sublease. No
assignment or sublease shall release Sublessee from any of its obligations
hereunder. If the consent of the Sublessor to an assignment or subletting is
obtained, Sublessor shall promptly contact the Master Landlord to request the
Master Landlord's consent pursuant to the Master Lease.
13. INDEMNIFICATION. Sublessee agrees to defend, indemnify and hold
Master Landlord, Sublessor and their respective trustees, directors,
officers, shareholders, employees, agents and representatives harmless from
and against all claims, damages, liabilities, losses, actions, causes of
action, judgments, costs and expenses, including, without limitation,
reasonable attorneys' fees (collectively, "Claims"), arising out of or
relating to (i) any breach by Sublessee under this Sublease, (ii) Sublessee's
use of the Sublease Premises, the Building, the Cubicles or any common areas,
(iii) the conduct of Sublessee's business therein, or (iv) any act or
omission of Sublessee or Sublessee's directors, officers, employees, agents,
representatives, licensees, contractors or invitees in or about the Sublease
Premises or the Building; provided, however, that Sublessee shall not be
required to so indemnify, defend or hold harmless (a) Sublessor to the extent
such Claims are directly caused by the negligence or willful misconduct of
Sublessor, or (b) Master Landlord to the extent such Claims are directly
caused by the negligence or willful misconduct of Master Landlord. The
foregoing indemnification and defense obligations shall survive the
expiration or earlier termination of this Sublease.
14. INSURANCE. During the entire term of this Sublease, Sublessee
shall, at its sole cost and expense, procure and maintain all insurance
required under Section 9 of the Original Lease; provided, however, that
comprehensive general liability insurance described in Section 9 of the
Original Lease shall have a combined single limit for bodily injury and/or
property damage liability of not less than Two Million Dollars ($2,000,000)
per occurrence. Sublessee shall name Sublessor and Master Landlord as
additional insureds under all such insurance policies.
14.1 WAIVER OF SUBROGATION. Sublessee shall obtain from its
insurer a waiver of all rights of subrogation that the insurer of Sublessee
might have against Sublessor under all policies of insurance maintained by
Sublessee at any time during the Sublease term insuring or
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covering the Sublease Premises or the Building or any improvements, fixtures,
equipment, furnishings or other property, including, without limitation,
salable goods, merchandise, and inventory, if any, in, on or about the
Sublease Premises or Building.
15. CONSENT OF LANDLORD. The Master Lease requires Sublessor to
obtain the written consent of Master Landlord to this Sublease. Sublessor
shall solicit Master Landlord's consent to this Sublease promptly following
the execution and delivery of this Sublease by Sublessor and Sublessee. In
the event Master Landlord's written consent to this Sublease has not been
obtained within thirty (30) days after the execution thereof on terms
reasonably acceptable to Sublessee, then this Sublease may be terminated by
either party hereto upon notice to the other, and upon such termination all
documents and deposits delivered hereunder shall be promptly returned and
neither party hereto shall have any further rights against or obligations or
liabilities to the other party hereto.
16. DEFAULT BY SUBLESSEE. Upon any default by Sublessee under this
Sublease, Sublessor shall have all rights and remedies available to Master
Landlord under the Master Lease in the event of a similar default on the part
of Sublessor thereunder, and all rights and remedies at law or in equity.
Notwithstanding any other provision of this Sublease, Sublessee shall, with
respect to the Sublease Premises, cure any default by Sublessee under this
Sublease within the period allowed to Tenant under the Master Lease even if
such time period is shorter than the period otherwise allowed under this
Sublease due to the fact that notice of default from Sublessor to Sublessee
is given after the corresponding notice of default from Master Landlord to
Sublessor.
17. TERMINATION OF THE LEASE. If for any reason the term of the
Master Lease shall terminate prior to the Expiration Date, this Sublease
shall automatically be terminated and Sublessor shall not be liable to
Sublessee by reason thereof unless said termination shall have been caused by
the default of Sublessor under the Master Lease.
18. BROKERS. Sublessor and Sublessee represent and warrant to each
other that no brokers were involved in connection with the negotiation or
consummation of this Sublease other than BT Commercial ("Sublessee's
Broker"), as Sublessee's representative, and Colliers Xxxxxxx International
("Colliers") , as Sublessor's representative. Except as to Colliers and
Sublessee's Broker, each party agrees to defend, indemnify, and hold the
other harmless from and against any and all Claims arising out of or relating
to any broker, agent, finder or other such person or entity claiming by,
through or under the acts or agreements of such indemnifying party.
Sublessor shall pay to Colliers a commission due pursuant to Sublessor's
separate written agreement with Colliers. Colliers shall pay fifty percent
(50%) of such commission to Sublessee's Broker.
19. MISCELLANEOUS PROVISIONS.
19.1 NOTICES. Any notice, demand or request which may be
permitted, required or desired to be given in connection with this Sublease
shall be given in writing and directed to Sublessor and Sublessee as follows:
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If to Sublessor: Electronics for Imaging, Inc.
000 Xxxxxxxx Xxx
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
With a copy to: Xxxxxxx & Xxxxxx LLP
Spear Street Tower
Xxx Xxxxxx Xxxxx
Xxxxxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Sublessee- Keynote Systems, Inc.
0 X. 0xx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Facsimile No.: (000) 000-0000
With a copy to: Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Notices shall be either (i) personally delivered (including delivery by
Federal Express or other courier service) to the offices set forth above, in
which case they shall be deemed delivered on the date of delivery to said
offices; (ii) sent by facsimile, in which case they shall be deemed delivered
on the date sent if a business day or otherwise on the next following
business day, provided, however, that any notices sent by facsimile shall
also be sent by overnight courier on the same day; or (iii) sent by certified
mail, return receipt requested, in which case they shall be deemed delivered
on the date shown on the receipt unless delivery is refused or delayed by the
addressee, in which event they shall be deemed delivered on the date of
refusal or delay of delivery by the addressee. The addresses and addressees
may be changed by giving notice of such change in the manner provided for
above.
19.2 ENTIRE AGREEMENT; INTERPRETATION. This Sublease
(including all exhibits attached hereto, except those sections of the Master
Lease excluded under Section 8.1 above) constitutes the entire understanding
between the parties with respect to the transaction contemplated herein, and
all prior or contemporaneous agreements, understandings, representations and
statements, whether oral or written, are superseded by this Sublease. In the
event of a conflict between the wording actually set forth in this document
and the provisions of the Master Lease incorporated herein by reference
pursuant to Section 8.1 above, the wording actually set forth in this
document shall control and take precedence.
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19.3 TIME OF ESSENCE. Time is of the essence in this Sublease.
19.4 APPLICABLE LAW. This Sublease shall be governed by and
construed pursuant to the laws of the State of California.
19.5 ATTORNEYS' FEES. In the event of any litigation
(including, without limitation, any litigation in a bankruptcy proceeding)
between the parties with respect to the Sublease Premises, this Sublease, the
performance of the parties' obligations hereunder or the effect of a
termination of this Sublease, or any other matter related thereto, the
prevailing party shall be entitled to its reasonable costs and expenses
incurred in connection with such litigation, including reasonable attorneys'
fees.
19.6 RECORDING. Neither Sublessor or Sublessee shall record
this Sublease or a memorandum hereof without the consent of the other.
19.7 EXAMINATION OF SUBLEASE. SUBMISSION OF THIS INSTRUMENT
FOR EXAMINATION OR SIGNATURE BY SUBLESSEE DOES NOT CONSTITUTE A RESERVATION
OF OR OPTION FOR SUBLEASE, AND IT IS NOT EFFECTIVE AS A SUBLEASE OR OTHERWISE
UNTIL EXECUTION BY AND DELIVERY TO BOTH SUBLESSOR AND SUBLESSEE AND CONSENTED
TO BY MASTER LANDLORD IN ACCORDANCE WITH THE TERMS OF THE MASTER LEASE.
19.8 COUNTERPARTS. This Sublease may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
19.9 MASTER LEASE. Sublessor represents and warrants to
Sublessee that, as of the date first written above, it has neither received
nor given notice of a default under the Master Lease and Sublessor does not
have actual, personal knowledge of any events that would over the passage of
time constitute a default by Master Landlord under the Master Lease.
(Signatures On Next Page]
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IN WITNESS WHEREOF, Sublessor and Sublessee have executed
this Sublease as of the date first written above.
SUBLESSOR: ELECTRONICS FOR IMAGING, INC.,
a Delaware corporation
By:
--------------------------
Xxxx X. Xxxxxxxx
Vice-President
SUBLESSEE: KEYNOTE SYSTEMS, INC.,
a California corporation
By:
--------------------------
Xxxx Xxxxxx
Chief Financial Officer
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Master Landlord hereby consents to the foregoing Sublease, upon the
following express terms and conditions:
1. The Sublease is subject and subordinate to the Master
Lease and to all of the terms, covenants, conditions, provisions and
agreements contained in the Master Lease.
2. Pursuant to Section 5 of the Master Lease, (a) Sublessor
shall pay to Master Landlord, throughout the term of the Sublease, fifty
percent (50%) of all amounts collected by Sublessor under the Sublease which
are in excess of the amounts required to be paid by Sublessor under the
Master Lease with respect to the Sublease Premises; and (b) Sublessor shall
promptly reimburse Master Landlord for the actual costs incurred by Master
Landlord in connection with the review and processing of the Sublease,
including, without limitation, Master Landlord's reasonable attorneys, fees.
3. Any improvements or alterations to the Sublease Premises
shall require the prior written approval of Master Landlord pursuant to the
terms of the Master Lease.
MASTER LANDLORD: THE XXXXXX AND XXX XXXX
REVOCABLE TRUST
By:
----------------------------------
Its:
---------------------------------
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LIST OF EXHIBITS
Exhibit A Master Lease
Exhibit B Floor Plan
EXHIBIT A
TO
SUBLEASE AGREEMENT
MASTER LEASE
A copy of the Master Lease is attached hereto.
AGREEMENT OF LEASE
THIS LEASE is made on the 30th day of July, 1992, between The Xxxxxx and
Xxx Xxxx Revocable Trust ("LANDLORD") and Electronics For Imaging, a California
corporation ("TENANT").
1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, upon the terms and conditions hereinafter set forth, those
premises (hereinafter "premises") constituting approximately 32,863 rentable
square feet and 31,254 useable square feet as shown on Exhibit "A" attached
hereto, of which 25,000 rentable square feet and 24,264 useable square feet are
located on the first floor and 7,863 rentable square feet and 6,990 useable
square feet oh the second floor of that building commonly known as 0000 Xxxxxx
Xxxxx (hereinafter "the building"). The building is located on that real
property commonly known as 0000 Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx (hereinafter
"the Project"), which includes the building, parking area, arcade, landscaping
and related improvements.
2. TERM. The term of this lease shall be fifty (50) months and shall
commence on the 1st day of November, 1992, and end on the 31st day of December,
1996, inclusive, provided, however that in the event Landlord is unable to
deliver possession of the premises to Tenant upon the date above specified for
the commencement of the term of this lease, neither Landlord nor its agents
shall be liable for any damage caused thereby, nor shall this lease thereby
become void or voidable, and the term herein specified shall in such case
commence upon the date of delivery of possession of the premises to Tenant and
shall terminate fifty (50) months thereafter.
In such event Tenant shall not be liable for any rent until such time as
Landlord shall deliver possession of said premises to Tenant.
3. RENT. Tenant agrees to pay to Landlord as rent for the premises the
sum of Forty-Seven Thousand Three Hundred Twenty-Two Dollars ($47,322.00) per
month in advance on the 1st day of the term of this lease (subject to
Paragraph 36 hereof) and on the 1st day of each calendar month thereafter during
the term, except that if the lst day of the term shall not be the 1st day of the
month, the rental for the portion of the term occurring in the first and last
calendar months of the term shall be appropriately prorated. All installments
of rent shall be paid at the office of Landlord, or at such other place as may
be designated in writing from time to time by Landlord, in lawful money of the
United States and without deduction or offset for any cause whatsoever except as
otherwise specifically provided herein. The rental for which provision is
hereinabove made shall be subject to adjustment as provided in Paragraph 20
hereof, or other covenants and conditions hereinafter set forth.
Notwithstanding the foregoing, no such rent shall be due for the first five (5)
months of the lease term.
All other sums which are to be paid to Landlord by Tenant pursuant to the
terms of this lease shall be deemed additional rent, and shall be paid by Tenant
to Landlord within ten (10) days after receipt by Tenant of a billing therefor
or at such other time as is specifically provided in this lease.
4. USE. The premises are to be used for general office purposes and
for no other business or purpose. No use shall be made or permitted to be made
of the premises, nor acts done in or about the premises, which will in any way
conflict with any law, ordinance, rule or regulation, permit, occupancy
certificate, or other entitlement affecting the use or occupancy of the
premises, now or hereafter in effect, or which will increase the existing rate
of insurance upon the Project or cause a cancellation of any insurance policy
covering the 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 policy. Tenant shall at its
own expense comply with all present and future laws, ordinances, orders, rules,
regulations, and/or requirements of all governmental authorities pertaining to
Tenant's particular use or occupancy of the premises, or Tenant's activities
therein. 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
obstruct or disturb the quiet enjoyment of any other tenant in the Project, nor
shall Tenant, without the written consent of Landlord, use any apparatus,
machinery or device in or about the premises which shall cause any substantial
noise or vibration, or which shall substantially increase the amount of
electricity or water, if any, agreed to be furnished or supplied under this
lease. Tenant shall not install or use heat-generating machines, excess
lighting, or other equipment which may affect the temperature otherwise
maintained by the air conditioning equipment, without the prior written consent
of Landlord. Tenant may install the usual office machines and equipment, such as
electrical typewriters, adding machines, teletypewriters and similar equipment.
Notwithstanding the foregoing, Tenant may install and operate at the premises
computers and related equipment, subject to the provisions of this lease
respecting use of the premises and installation of alterations and trade
fixtures.
5. ASSIGNMENT. Tenant shall not directly or indirectly sell, assign,
mortgage, encumber or transfer this lease, sublet the premises or any part
thereof or allow any other person (excepting Tenant's agents and employees)
to occupy the premises or any portion thereof, without the prior written
consent of Landlord; provided that Tenant shall not be required to obtain
Landlord's consent to use of the Premises by Tenant's invitees and customers
so long as such invitees and customers are not subtenants or assignees of
Tenant. Any such proposed, attempted or consummated sale, assignment,
mortgage, encumbrance, transfer, subletting, occupancy or other prohibited
act described in the preceding sentences is herein collectively called a
"transfer" and the person or entity who or which is the proposed or actual
recipient of a "transfer" is herein collectively called a "transferee." This
prohibition against transfers does not include the transfer of the Tenant's
stock through any public exchange. As used herein, a "transfer" shall not
include a transfer of this lease in connection with a merger, consolidation
or nonbankruptcy reorganization of Tenant's business, or a transfer to a
subsidiary, affiliate, division or corporation controlled by or under common
control with Tenant or a purchaser of substantially all of the assets of
Tenant located at the premises, so long as the transferee agrees in writing
to be bound by all of the terms of this lease and has a net worth equal to or
greater than that of Tenant at the time of the proposed transfer (with
Tenant's net worth measured as of the commencement date of this lease) , the
use proposed by the transferee is permitted pursuant to Paragraph 4 above and
is otherwise consistent with the first class office nature of the building;
and no such transfer shall result in Tenant being released or discharged from
any liability under this lease. Tenant shall give Landlord written notice of
any proposed transfer. Said notice shall
2
state the proposed commencement date of the desired transfer, all material
terms of the proposed transfer, the name and address of the proposed
transferee, and Tenant shall deliver to Landlord with said notice a true and
complete copy of all agreements relating to the proposed transfer together
with current complete financial statements of the proposed transferee.
Thereafter, Tenant shall immediately furnish Landlord with any other
information concerning the proposed transferee as Landlord shall reasonably
request.
Landlord shall not unreasonably refuse or delay its consent to Tenant's
transfer of the premises. Landlord may grant its consent on reasonable
conditions, including but not limited to (i) Landlord's approval of the proposed
transferee's financial status; (ii) Landlord's approval of the proposed tenant
improvement plan, including any modifications affecting the HVAC system; (iii) a
condition that the proposed tenant improvements are to be made in a manner
reasonably satisfactory to Landlord, and (iv) a condition that Landlord shall be
entitled to receive fifty percent (50%) of the amount by which the rent received
by Tenant from a transferee exceeds the rental required hereunder.
Any transfer hereunder by Tenant shall not result in Tenant being released
or discharged from any liability under this lease other than as specifically set
forth above. As a condition to Landlord's prior written consent as provided for
in this paragraph, the transferee(s) shall agree in writing to comply with and
be bound by all of the terms, covenants, conditions, provisions and agreements
of this lease, and Tenant shall deliver to Landlord, promptly after execution,
an executed copy of each sublease and an agreement of said compliance by each
transferee. Tenant shall not agree to any modification of such sublease,
including any further transfer, without Landlord's prior written consent.
If Landlord consents to any such subletting or assignment, Tenant shall pay
to Landlord the amount of all Landlord's actual costs of processing such
proposed transfer (including, without limitation, reasonable attorney's fees).
Consent to any transfer shall not constitute consent to any subsequent
transfer. If Tenant makes any transfer without the prior written consent of
Landlord, Landlord may collect rent from the transferee and apply such rent
against amounts owing hereunder without waiving its rights hereunder, and
consent of Landlord shall not be deemed or presumed from such conduct. Landlord
may, at its option, terminate this lease in the event of any transfer of this
lease which does not comply with the provisions of this paragraph.
6. REPAIRS AND ALTERATIONS. Subject to any punchlist items prepared in
accordance with Exhibit B and to any latent defects discovered within one year
after delivery (provided that nothing herein shall be construed to require
Landlord to correct any item in the premises damaged by Tenant's misuse
thereof), Tenant agrees by taking possession of the premises as herein set forth
that such premises are then in a tenantable and good condition and conform with
the requirements of this lease, that Tenant will take good care of the premises,
and that the same will not be altered or changed without the written consent of
the Landlord. Tenant shall promptly notify Landlord of any damage to or defect
in any part of the premises, or in any equipment or utility system serving the
premises, of which Tenant becomes aware and which
3
may cause or result in death or injury to any person or damage to property
notwithstanding that Landlord may have no obligation with respect thereto.
As part of the consideration for rental hereunder, Tenant agrees that all
alterations, improvements, repairs or maintenance of the premises shall,
except as otherwise herein agreed, be made by contractors reasonably
acceptable to Landlord, at Tenant's expense, and Tenant hereby waives the
provisions of Subdivision (1) of Section 1932 and of Sections 1941 and 1941.1
of the Civil Code of California, and all rights to make repairs at Landlord's
expense under the provisions of Section 1942 and 1942.1 of said Civil Code or
any other provision of law. Unless otherwise provided by written agreement,
all alterations, improvements and changes that may be permitted by Landlord
shall at the termination of the lease become the property of Landlord and
shall remain upon and be surrendered with the premises, provided however,
that at Landlord's option Tenant shall, at Tenant's expense, when
surrendering the premises, remove the same and restore the premises to their
original condition at the commencement of this lease, provided that Landlord
shall have so notified Tenant at the time Landlord consented to such
alterations, improvements or changes. All damage or injury done to the
premises by Tenant, or by any persons who may be in or around the premises
with the consent of Tenant, shall be paid for by Tenant. Tenant shall, at the
termination of this lease by the expiration of time or otherwise, surrender
and deliver up the premises to Landlord in as good condition as when received
by Tenant from Landlord, reasonable wear and tear excepted. Tenant shall pay
for all damage to the building, the Project, or appurtenant areas or
equipment, as well as all damage to tenants or occupants thereof or their
property caused by Tenant or by Tenant's agents, contractors, invitees or
representatives. Subject to Tenant's express repair obligations set forth
herein, Landlord shall maintain and keep the Project in good condition,
provided that Landlord shall be entitled to treat the costs thereof as
"Operating Expenses" to the extent permitted under Paragraph 20(e)(2) of this
lease. Landlord agrees to reasonably cooperate with Tenant in enforcing any
warranties applicable to systems and equipment Tenant is obligated to repair
and maintain hereunder.
7. TRADE FIXTURES. Subject to the provisions of Paragraphs 4 and 6
hereof, Tenant may install and maintain its trade fixtures on the premises,
provided that such fixtures, by reason of the manner in which they are affixed,
do not become an integral part of the building or premises. Tenant, if not in
default hereunder, may at any time or from time to time during the term hereof,
or upon the expiration or termination of this lease, alter or remove any such
trade fixtures so installed by Tenant. If not so removed by Tenant on or before
the expiration or termination of this lease, Tenant, upon the request of
Landlord, shall remove the same. Any damage to the premises caused by any such
installation, alteration or removal of such trade fixtures shall be promptly
repaired at the expense of the Tenant.
8. SERVICES. Landlord shall furnish the premises with a reasonable
amount of water and electricity suitable for general office uses including a
normal complement of electrical office equipment, daily janitor service except
on Saturdays, Sundays and public holidays, window washing with reasonable
frequency, replacement of fluorescent tubes and light bulbs, toilet room
supplies, and elevator service consisting of non-attended automatic elevators.
Such heat and air-conditioning as may be required for the comfortable occupation
of the premises will be provided during the hours of 7:30 AM to 6:00 PM daily
except Saturdays, Sundays and public holidays. During other hours' Landlord
shall provide reasonable heat and air-conditioning upon
4
twenty-four (24) hours, notice by Tenant to Landlord, and Tenant, upon
presentation of a xxxx therefor, shall pay Landlord for such service on an
hourly basis at the then prevailing rate as established by Landlord. The
current hourly rate is Thirty Dollars ($30.00) per hour. This rate shall be
reviewed and may be subject to adjustment annually.
If in the reasonable judgment of Landlord any equipment or device used on
the premises (other than the usual office machines permitted pursuant to
Paragraph 4 hereof) will result in unusual electrical (e.g., 24-hour, on-line
computer functions) or water use, Landlord may either (i) estimate the amount of
Tenant's excess usage and charge Tenant a surcharge based on the current actual
utility rates for the building, or (ii) cause a special meter to be installed on
the premises to measure the amount of electric current or water consumed for
such equipment or device. Tenant shall pay all expenses directly related to any
such meters, including without limitation, the expense of such meters and of
installation, maintenance and repair thereof, for all such electric current or
water so consumed (at the rates then in effect by the utility furnishing same
utilizing the average rate for the building), and for the expense of keeping
account of the electric current or water so consumed. If Landlord does not
install such separate meter until after the use of such equipment or device has
commenced, Tenant shall pay the actual expense of electric current or water
consumed prior to installation of the meter as reasonably estimated by Landlord
on the basis of actual use determined after installation of the meter. Landlord
may install supplemental air conditioning units in the premises or otherwise
provide supplemental air conditioning if any heat-generating equipment or
devices are installed or used on the premises, and all expenses of such
supplemental air conditioning (including without limitation installation,
operation, repair and maintenance, separate metering, if any, and accounting for
such expenses), determined in the reasonable judgment of Landlord, shall be paid
by Tenant. Landlord shall not be liable for direct or indirect or consequential
damage or damages for (i) personal discomfort, inconvenience, illness, injury or
death of Tenant, its employees, agents, invitees, clients, licensees, guests,
customers or any other persons whatsoever, nor (ii) injury or damage to
property, by reason of the operation or non-operation of any of the
above-referenced equipment or systems, or for any interruption, reduction, or
cessation of the supply, quality or character of any utility or other service,
unless caused by the gross negligence or willful misconduct of Landlord. Tenant
shall be solely responsible for providing appropriate protections (including
data storage back-up devices) against loss of its computer data or other
electronic data.
Landlord's obligations hereunder are subject to adoption by Landlord of
energy conservation measures required by any governmental entity, and Tenant
shall cooperate in effectuating such energy conservation measures upon
request of Landlord including without limitation those measures specified in
the Project Rules and Regulations.
9. INSURANCE. Notwithstanding any other provision of this lease,
Tenant at its expense shall maintain the following insurance coverages:
(a) worker's compensation insurance as may be required by law; (b)
comprehensive general liability insurance issued by an insurer reasonably
satisfactory to Landlord, with a combined single liability limit for bodily
injury and property damage of not less than One Million Dollars ($1,000,000)
per occurrence, or such greater amount as an institutional mortgagee of
Landlord may reasonably require from time to time, insuring against all
liability of Tenant and its authorized representatives arising out of and
5
in connection with Tenant's use or occupancy of the premises; and (c) "all
risk" property insurance on Tenant's personal property and fixtures and all
Tenant's improvements to the premises. Tenant's property policies shall not
provide for deductible amounts in excess of $1,000 without the prior written
consent of Landlord. At the request of Landlord, the liability insurance
shall include products liability coverage. All such insurance shall insure
performance by Tenant of the indemnity and hold harmless provisions of
Paragraph 10 hereof. Landlord shall be named as an additional insured with
Tenant on such liability policy, and such policy shall include
cross-liability endorsements. Tenant's liability policy of insurance shall
be primary and noncontributory to any insurance carried by Landlord. At the
commencement of the lease term, and annually on renewal of such insurance,
Tenant shall deliver to Landlord an original certificate of such insurance
from the insurer, which certificate shall show the coverages required by this
lease (including, without limitation, that Tenant's insurance is primary and
noncontributory with respect to any insurance of Landlord), that Landlord
shall be an additional insured, and shall provide that such policy shall not
be cancelled or modified without thirty (30) days prior written notice by the
insurer to Landlord. If Tenant fails to obtain such insurance or to furnish
such certificate as required in this lease, Landlord may, but shall not be
obligated to, obtain such insurance at the expense of Tenant, and Tenant
shall promptly pay such expense to Landlord.
Landlord may, without diminishing or affecting in any way Tenant's
obligations to maintain insurance as herein provided, maintain any insurance
coverage on the building, the Project, or the premises deemed appropriate by
Landlord in its sole discretion, including without limitation lessor's risk
or comprehensive general liability insurance, worker's compensation
insurance, extended coverage, fire or casualty insurance, with replacement
cost riders, flood or earthquake insurance, rental or business interruption
insurance, and such insurance may provide for such deductible amounts in
amounts deemed appropriate by Landlord. Except as otherwise expressly
provided herein or required by law, Landlord shall have no obligation to
maintain such insurance. Notwithstanding any contribution by Tenant to
Landlord for insurance premiums as part of the operating expenses as may be
required in this lease, no insurable interest is conferred upon Tenant under
any policies carried by Landlord, and Tenant shall have no right to receive
any proceeds of insurance from policies carried by Landlord. If Tenant
desires to receive indemnity by way of insurance for any property, work or
thing whatever, Tenant shall insure same for its own account and shall not
look to Landlord for reimbursement or recovery in the event of loss or damage
from any cause, whether or not Landlord has insured same and recovered
therefor.
Each party hereby waives its right of recovery against the other for any
losses which are or are required to be insured against under this Paragraph,
regardless of cause or origin, including negligence of the other party hereto,
and covenants that no insurer shall hold any right of subrogation against such
other party. Each party shall advise insurers of the foregoing, and such waiver
shall be a part of each policy maintained by each party which applies to the
premises or Tenant's use and occupancy of any part thereof.
10. HOLD HARMLESS AND NONLIABILITY OF LANDLORD. Inasmuch as Tenant has
agreed to carry the insurance-specified in Paragraph 9, the parties agree that
Landlord
6
shall not be liable for, and Tenant hereby waives all claims against Landlord
with respect to or arising out of, any death or injury or damage that may
result to any person or property in or about the premises, or the Project,
from any cause whatsoever, including but not limited to injury or damage
resulting from any defects in the Project or any equipment located therein,
or from the acts or omissions of any persons, including cotenants, or any
acts or omissions of Landlord, except insofar as such injury or damage may
result from the negligence or willful misconduct of Landlord or its employees
agents, contractors, licensees or invitees. In addition, Landlord shall not
be liable for any loss or damage for which Tenant is required to insure
pursuant to Paragraph 9, nor for any loss or damage resulting from any
construction, alterations or repairs performed by Tenant or its contractors,
agents or employees.
Tenant agrees to indemnify and hold Landlord harmless against all claims,
and the expense of defending against such claims, for death or for injury or
damage to persons or property occurring in or about the premises or occurring
outside the premises to the extent such death, injury or damage results from the
act, failure to act, negligence or other fault of Tenant or its agents,
employees, contractors, licensees or invitees. Tenant further agrees to
indemnify and hold harmless Landlord against any and all claims by or on behalf
of any person, firm or corporation, arising from the conduct of any work done by
or for Tenant in or about or from transactions of Tenant concerning the
premises, and will further indemnify and hold Landlord harmless against and from
any and all claims arising from any breach or default on the part of the Tenant
to be performed pursuant to the terms of this lease. Tenant shall also
indemnify and hold harmless Landlord against all costs, reasonable counsel fees,
expenses and liabilities incurred in connection with any such claims or actions
or proceedings brought thereon. If any action or proceeding is brought against
Landlord by reason of an such claims or liability, Tenant agrees to defend such
action or proceeding at Tenant's sole expense by counsel reasonably satisfactory
to Landlord. The provisions of this Paragraph 10 shall survive the expiration
or termination of this lease.
Should Landlord, without fault on Landlord's part, be made a party to any
litigation instituted by or against Tenant, or by or against any person holding
under or using the premises by license of Tenant, or for the foreclosure of any
lien for labor or material furnished to or for Tenant or any such other person
or otherwise arising out of or resulting from any act or transaction of Tenant
or of any such other person, Tenant shall pay to Landlord the amount of any
judgment rendered against Landlord or the premises or any part thereof, and all
costs and expenses, including reasonable attorneys' fees, incurred by Landlord
in or in connection with such litigation.
11. DESTRUCTION. If the premises or the building wherein the same are
situated shall be destroyed by fire or other casualty, or be so damaged thereby
that they are untenantable and cannot be rendered tenantable within one hundred
eighty (180) days from the date of such destruction or damage in the reasonable
opinion of the Landlord, Landlord shall so notify Tenant in writing within
thirty (30) days after the date of such destruction or damage, and either
Landlord or Tenant may terminate this lease by giving written notice to the
other within thirty (30) days after the date of the first notice. If neither
party elects to terminate this lease, or if the damage or destruction shall not
be such as to permit termination of the lease as above provided,
7
Landlord shall with due diligence, to the extent of any insurance proceeds
received by Landlord, or to the extent of insurance proceeds which would have
been received by Landlord but for Landlord's failure to maintain the
insurance required of Landlord pursuant to this Lease, repair said premises,
and a proportionate reduction shall be made in the rent herein corresponding
to the time during which and to the portion of the premises of which Tenant
shall be deprived of possession, as reasonably determined by Landlord. The
provisions of Subdivision 2 of Section 1932 of the California Civil Code, and
of Subdivision 4 of Section 1933 of that Code, shall not apply to this lease,
and Tenant waives the benefits of such provisions. In repairing the
premises, Landlord may use designs, plans and specifications other than those
used in the original construction, and may alter or relocate any or all of
the building, including the premises, provided that the premises as altered
or relocated shall be in all material respects reasonably comparable to the
premises as defined herein. Leasehold improvements installed in the premises
by Landlord at its expense shall be repaired and rebuilt by Landlord, subject
to the same requirements applicable to the premises under this paragraph.
12. NOTICES. All notices, demands, requests, consents, or approvals
("notices" hereafter) which are required or authorized to be given by
Landlord or Tenant pursuant to this lease or by law, or which Landlord or
Tenant may desire to give to the other, shall be in writing. All notices to
Landlord shall be addressed to Pell Development Company, 000 Xxxxx Xxxxx
Xxxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxxxx 00000 or such other address as
Landlord may from time to time request, and shall be personally delivered to
an employee of Landlord or served by mail. All notices to Tenant shall be
addressed to Tenant at the premises, and shall be delivered to the premises,
personally or by messenger or air courier, or served by mail addressed to the
premises, whether or not Tenant has departed from, abandoned, or vacated the
premises, or to such other address as Tenant may from time to time designate
in writing. Tenant waives the provisions of Section 1162 of the California
Code of Civil Procedure, provided that any notice to Tenant under Section
1161 of the California Code of Civil Procedure is given in compliance with
this Paragraph. All notices served by mail shall be deposited in the United
States mail, first class postage prepaid (or, at the option of, the party
giving the notice, may be by certified or registered mail, postage prepaid),
addressed as herein provided, and shall be effective (a) on the third day
after being deposited in the mail, as determined by the postmark, or if there
is no postmark then by other competent evidence, or (b) when received if
earlier or if otherwise served.
13. INSOLVENCY OR RECEIVERSHIP. Either (a) the appointment of a
receiver to take possession of all, or substantially all, of the assets of
Tenant, which appointment is not dissolved for a period of thirty (30) days
thereafter, (b) a general assignment by Tenant for the benefit of creditors,
(c) any action taken or suffered by Tenant under any insolvency or bankruptcy or
reorganization act, which action remains undischarged for a period of thirty
(30) days, (d) the attachment, execution or other judicial seizure of Tenant's
interest in this lease or in any substantial amount of Tenant's assets located
on the premises, which such seizure is not discharged for a period of thirty
(30) days thereafter; or (e) an admission by Tenant in writing of its inability
to pay its debts as they become due, shall constitute a breach of this lease by
Tenant.
14. DEFAULT.
8
(a) EVENTS OF DEFAULT. The occurrence of any of the following
shall constitute an event of default on the part of Tenant: (1) failure of
Tenant to pay rent or other payments when due hereunder, such failure continuing
for a period of five (5) days after Landlord gives Tenant written notice of such
failure; provided, however, that Landlord shall not be required to provide such
notice more than twice in any 12-month period during the term of this lease, the
third such nonpayment constituting default without requirement of notice;
(2) vacation or abandonment by Tenant of the premises; (3) transfer of Tenant's
interest in this lease, or any part thereof without the consent of Landlord as
provided in Paragraph 5 hereof; (4) occurrence of a breach of this lease under
Paragraph 13 hereof, relating to the financial condition of Tenant; (5) failure
of Tenant to cure a breach of an obligation under this lease which results in a
nuisance to other tenants in the Project or to Landlord, or presents a hazard to
persons or property, within 48 hours after notice of such breach; (6) failure of
Tenant to perform any other obligation, covenant, or agreement under this lease,
other than those matters specified above, such failure continuing for thirty
(30) days after notice of such failure (or such longer period as is reasonably
necessary to remedy such default, provided that Tenant shall, within such thirty
(30) day period commence and thereafter continuously and diligently pursue such
remedy at all times until such default is cured). Any notice by Landlord under
this Paragraph shall be sufficient if it informs Tenant of the general nature of
Tenant's failure to perform Tenant's obligations hereunder. If Tenant fails to
perform any obligation hereunder at a time when Tenant is entitled to no cure
periods, Landlord shall be entitled to exercise the remedies herein provided for
default without written notice to Tenant or an opportunity to Tenant to cure
such default.
(b) REMEDIES. Upon the occurrence of an event of default under
Paragraph 14(a) of this lease, Landlord shall have the following rights and
remedies, which shall be cumulative, and any other remedies provided by law:
Without prejudice to any of the remedies that Landlord may have
under this lease, or at law or equity by reason of Tenant's default, Landlord
may (i) terminate this lease and avail itself of all the rights and remedies of
the Landlord provided by section 1951.2 of the Civil Code of the State of
California, or successor Code section; (ii) elect to have the lease continue in
effect for so long as Landlord does not terminate Tenant's right to possession,
in which case Landlord may enforce all of its rights and remedies under this
lease, including (but without limitation) the right to recover all unpaid
rental, including adjustments pursuant to paragraph 20 hereof, as it becomes
due, and Landlord, without terminating this lease, may exercise all of the
rights and remedies of a Landlord under section 1951.4 of the Civil Code of the
State of California or any successor Code section; (iii) enter the premises and
remove therefrom all persons and property, store such property in a public
warehouse or elsewhere at the cost of and for the account of Tenant, and sell
such property and apply the proceeds therefrom pursuant to applicable California
law, and (iv) have a receiver appointed for Tenant, upon application by
Landlord, to take possession of the premises and to apply any rental collected
from the premises and to exercise all other rights and remedies granted to
Landlord pursuant to subparagraph (iii) above. Acts of maintenance and
preservation or efforts to lease the premises or the appointment of a receiver
upon application of Landlord to protect its interest under the lease shall not
be construed as a termination of Tenant's right to possession of the premises
under Section 1951.4 of the California Civil Code, or any successor law thereto,
nor shall any such act be construed as an
9
election on Landlord's part to terminate this lease unless a written notice
of such intention be given to Tenant or unless the termination thereof be
decreed by a court of competent jurisdiction.
If Landlord elects to terminate this lease after Tenant's default, Landlord
may recover all amounts provided in Section 1951.2 of the California Civil Code
(including, without limitation, the costs and expenses of recovering the
premises, the reasonable costs and expenses of subletting or re-letting the
premises including reasonable attorneys' fees and any real estate commissions
actually paid or incurred, provided that, any commission paid to a company owned
by Landlord shall not exceed the prevailing market rate for such commission, and
any costs and expenses of repairs or alterations for such sub-letting or
re-letting) with interest thereon at the rate herein provided, and any
additional amounts which may now or hereafter be authorized by law.
If Landlord subleases the premises, then upon each such subletting, Tenant
shall immediately pay to Landlord (in addition to any other amounts due
hereunder) all reasonable costs and expenses of such subletting, including
without limitation reasonable attorneys' fees and any real estate commissions
actually paid or incurred (provided that any commission paid to a company owned
by Landlord shall not exceed the prevailing market rate for such commissions)
and any costs and expenses of such alterations and repairs, and the present
worth of the amount, if any, by which the unpaid rentals and other amounts due
hereunder for any portion of the balance of the term of this lease included in
the period of such subletting exceed the rentals reserved in such sublease
(computing present worth by assuming the legal rate of interest), less the
amount, if any, of said rental loss which Tenant proves could have been
reasonably avoided, with interest on all such sums at the rate herein provided.
Rents received by Landlord from such re-letting shall be applied; first, to the
payment of any unpaid sums due to Landlord from Tenant under the preceding
sentence hereof; second, to the payment of any indebtedness, other than monthly
rent, due hereunder from Tenant to Landlord (including interest on defaulted
payments hereunder); third, to the payment of rent due and unpaid hereunder and
the residue, if any, shall be held by Landlord and applied in payment of future
rent or other obligations as the same may become due and payable hereunder. If
rentals received from such a subletting during any month are less than rentals
and other payments to be paid during or prior to that month by Tenant hereunder,
Tenant shall pay any such deficiency to Landlord. Any such deficiency shall be
calculated and paid monthly.
Landlord shall have the right to cure any default of Tenant at Tenant's
expense. Tenant shall pay to Landlord immediately upon demand all costs
incurred by Landlord in curing any such default. No such cure by Landlord shall
constitute a waiver by Landlord of the default of Tenant or prevent Landlord
from exercising the other remedies herein provided for default by Tenant.
(c) LATE CHARGES. Tenant acknowledges that late payment by Tenant
to Landlord of rent or other sums due hereunder will cause Landlord to incur
costs not contemplated by this lease, including without limitation processing
and accounting charges, administrative expense, and additional interest expense
or late charges to Landlord resulting from late payment by Landlord of payments
due on obligations of Landlord, whether or not secured by an encumbrance on the
premises. Tenant acknowledges that the exact amount of such damages
10
would be extremely difficult and impractical to ascertain, and that the
expense of attempting to ascertain the exact amount of such damages would be
an additional cost not contemplated by this lease. Accordingly, in the event
that Tenant shall fail to pay any installment of rent or any sum due
hereunder within ten (10) days after the later of the date such amount is due
or the effective date of any notice required to be given by Landlord in
connection therewith, and without regard to whether Landlord exercises any
remedy herein provided for default by Tenant, Tenant shall pay to Landlord as
additional rent a late charge equal to four percent (4%) of each such
installment or other sum. Landlord and Tenant agree that the late charge
herein provided is a reasonable estimate of the damages which Landlord shall
incur by reason of late payment by Tenant. Landlord's acceptance of any late
charge shall not constitute a waiver of Tenant's default with respect to the
overdue amount if Tenant fails to pay such amount within any applicable grace
period provided in this lease, nor shall such acceptance prevent Landlord
from exercising any rights or remedies herein provided for default by Tenant.
(d) OTHER. In addition to the foregoing, and regardless of
whether Landlord has exercised any remedies for default hereunder, if an event
of default has occurred under Paragraph 14(a) hereof and is continuing at the
time Tenant purports to exercise a right or option granted hereunder, Tenant
shall have no right to exercise any right of first refusal, option to extend the
term of this lease or option to expand the premises granted to Tenant hereunder
or in any other agreement relating to the premises, the building or the Project,
and any attempt to exercise such a right or option shall be void and of no
effect whatsoever, provided, however, that Tenant's right to possession of the
premises, and Tenant's rights to sublet the premises or assign its lease
pursuant to the provisions of Paragraph 5 hereof, shall not be deemed terminated
unless Landlord terminated the lease by written notice as herein provided. Any
period provided herein for the exercise by Tenant of any such right or option
hereunder shall not be tolled, extended, or otherwise affected to the benefit of
Tenant by reason of any such disability of Tenant hereunder regardless of any
attempt by Tenant to exercise such right or option hereunder while such an event
of default exists hereunder. Any defaulted payments hereunder shall bear
interest at 3% per annum plus the greater of (i) the Federal Reserve Bank rate,
specified in Article 15, Section 1 of the California Constitution, prevailing on
the 25th day of the month preceding execution of this lease (it being understood
that this lease is not a contract to make a loan or forbearance), or (ii) such
Federal Reserve Bank rate prevailing on the 25th day of the month preceding the
date such defaulted payment was due hereunder, regardless of whether Landlord
exercises any remedies hereunder.
Tenant hereby waives all claims for damages that may be caused by
Landlord's re-entering and taking possession of the premises or removing and
storing the property of Tenant as authorized in this paragraph, and will hold
Landlord harmless against all loss, costs or damages occasioned thereby, and no
such re-entry shall be considered or construed to be a forcible entry.
15. REMOVAL OF PROPERTY. [Intentionally deleted].
16. WAIVER. No provision of this lease shall be deemed waived by
Landlord or Tenant except by a writing signed by Landlord or Tenant. The waiver
by Landlord or Tenant of
11
any breach of any term, covenant, or condition herein contained shall not be
deemed to be a waiver of such term, covenant, or condition or of any
subsequent breach of the same or any other 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. No
endorsement on any check or other form of payment or statement in any
communication accompanying any payment shall be deemed an accord or
satisfaction, and Landlord or Tenant may accept any payment without prejudice
to any rights Landlord or Tenant may have at law or under this lease. Any
consent by Landlord or Tenant to any act or omission by Tenant or Landlord
for which Landlord's or Tenant's consent is required hereunder shall not be
deemed to be a consent to any subsequent act or omission of the same or
different nature, nor shall any such consent be deemed to be a waiver of the
requirement of Landlord's or Tenant's consent for any subsequent act or
omission of the same or different nature.
17. ATTORNEYS' FEES. If Tenant or Landlord shall bring any action for
any relief against the other, declaratory or otherwise, arising out of this
lease or Tenant's occupancy of the premises, including any suit by Landlord for
the recovery of rent or possession of the premises, the losing party shall pay
to the prevailing party a reasonable sum for attorneys' fees incurred in
bringing such suit, and/or enforcing any judgment granted therein, all of which
shall be deemed to have accrued upon the commencement of such action and shall
be paid whether or not such action is prosecuted to judgment. Any judgment or
order entered in such action shall contain a specific provision providing for
the recovery of attorneys' fees and costs incurred in enforcing such judgment.
For the purposes of this section, attorneys' fees shall include, without
limitation, fees incurred in the following: (1) postjudgment motions;
(2) contempt proceedings; (3) garnishment, levy, and debtor and third party
examinations; (4) discovery; and (5) bankruptcy litigation.
18. TAXES PAYABLE BY TENANT. Tenant shall pay, before delinquency, all
taxes levied against, imposed upon, measured by, or resulting from or with
respect to (a) any personal property or trade fixtures placed by Tenant in or
about the premises; (b) any improvements ("Special Improvements") to the
premises in excess of building standard improvements, whether owned by Landlord
or Tenant; (c) the possession, lease, operation, management, maintenance,
alteration, improvement, repair, use or occupancy of the premises or any portion
thereof by Tenant (provided that this clause shall not be construed to require
Tenant to make payments in duplication of amounts payable pursuant to
Paragraph 20 hereof); (d) this transaction or any document to which Tenant is a
party creating or transferring any interest or estate in the premises; (e) the
cost and expenses of contesting the amount or validity of any of the foregoing
taxes. If any such taxes are levied against Landlord or Landlord's property,
and if Landlord pays the same, which Landlord shall have the right to do
regardless of the validity of such levy, or if the assessed value of Landlord's
property is increased by the inclusion therein of a value placed upon such
personal property, trade fixtures or Special Improvements of Tenant, and if
Landlord pays the taxes based upon such increased assessment, which Landlord
shall have the right to do regardless of the validity thereof, Tenant shall,
upon demand, repay to Landlord the taxes so levied against Landlord, or the
proportion of such taxes resulting from such increase
12
in the assessment, as the case may be. In the event that it shall not be
lawful for Tenant so to reimburse Landlord, the rent payable to Landlord
under this lease shall be revised to yield to Landlord the same net rent from
the premises after imposition of any such tax upon Landlord as would have
been received by Landlord from the premises prior to the imposition of such
tax. The amount of any tax upon Tenant's personal property attached to the
premises, trade fixtures or Special Improvements which is included in the
property tax assessment for the building shall be determined on the basis of
the records of the County Assessor if such records are sufficiently detailed
to allow such determination, and if not, then the amount shall be determined
on the basis of the actual cost of construction or installation thereof.
Notwithstanding the foregoing, Tenant shall have the right to contest the
imposition or assessment of any such taxes by appropriate legal procedures,
provided that unless the taxing authority agrees to suspend Tenant's
obligation to pay such amounts during the pendency of such contest, Tenant
shall not be relieved of the obligation to pay, or reimburse Landlord for,
any such taxes during the pendency of such contest, and Tenant shall
indemnify and hold Landlord harmless from any liability, cost, damage or
expense arising out of such contest.
19. LIENS. Tenant shall keep the premises, building, and the Project,
free from any liens arising out of any work performed, materials furnished or
obligations incurred by Tenant.
20. RENTAL ADJUSTMENT. The monthly rental provided in Paragraph 3 shall
be subject to adjustment as follows:
(a) Landlord shall bear all Project Taxes and Operating Expenses
through and including the Base Year, which is calendar year 1993. If Project
Taxes and Operating Expenses in any subsequent year of the lease term exceed the
Base Year Project Taxes and Operating Expenses, Tenant shall pay to Landlord
with respect to each such year, Tenant's Share of such excess.
(b) Tenant shall pay its share of any such excess in the following
manner: After the first calendar year following the Base Year (hereinafter
referred to, together with each successive calendar year of the lease term, as
the "Comparison Year"), Landlord shall calculate the actual Project Taxes and
Operating Expenses and Tenant's share of the excess amount over the Base Year
Project Taxes and operating Expenses. Landlord shall notify Tenant of the total
amount of its share of the excess. Tenant shall pay to Landlord the full amount
of its share of the excess for the first Comparison Year within thirty (30) days
after its receipt of the invoice. One-twelfth (1/12th) of Tenant's share of the
excess for the first Comparison Year shall be added to the monthly rental
payments required to be made by Tenant in the Second Comparison Year as an
estimated amount of Tenant's share of the excess for such Comparison Year, and
any installments which would have been payable in the months preceding
Landlord's notice to Tenant shall be payable within thirty (30) days after
Landlord's notice. The procedure outlined above shall be repeated in each
successive Comparison Year, provided that the total amount of monthly payments
made by Tenant in any Comparison Year shall be deducted from its share of the
excess amount for such Comparison Year, with the balance to be paid by Tenant
within thirty (30) days after its receipt of the reconciliation statement for
such Comparison Year, or with any overpayment by Tenant to be credited against
the next installment of rent due under the lease,
13
and further provided that Tenant shall pay the same installment amount in
each Comparison Year as in the prior year until such amount is adjusted by
Landlord in the reconciliation statement for the prior Comparison Year.
(c) Landlord shall, as soon as practicable after the close of
any calendar year for which rental was increased under Subparagraph 20(a)
hereof, deliver to Tenant a written statement summarizing actual Project
Taxes and Operating Expenses for such calendar year and showing Tenant's
Share of any excess over the Base Year Project Taxes and Operating Expenses.
If Tenant disputes the amount set forth in such statement, Tenant shall have
the right, by written request made not later than thirty (30) days following
receipt of such statement, to cause Landlord's books and records with respect
to such calendar year to be audited by independent certified public
accountants mutually acceptable to Landlord and Tenant. Prior to any such
audit, Tenant shall pay to Landlord a deposit equal to the full amount of any
unpaid amount in dispute. Notwithstanding the foregoing, Tenant may elect to
deposit such disputed amount with a neutral escrowholder by so notifying
Landlord provided that in such event, the audit must be concluded, and
Landlord and Tenant shall each cause the escrowholder to release any amounts
determined to be owed to Tenant or Landlord, respectively, no later than
sixty (60) days following the original due date for the disputed amount. All
amounts held in such escrow account shall bear interest at the highest
available rate for short-term deposits for the benefit of Tenant, unless such
audit reveals that the amount in dispute is in fact owing to Landlord, in
which case such interest shall be for the benefit of Landlord. The amounts
payable under Subparagraph 20(b) by Landlord to Tenant or Tenant to Landlord,
as the case may be, shall be appropriately adjusted on the basis of such
audit. If such audit discloses a liability for further refund by Landlord to
Tenant in excess of five percent (5%) of the amount determined by Landlord
pursuant to this subparagraph 20(c) hereof as Tenant's Share of actual excess
Project Taxes and Operating Expenses for such calendar year, the cost of such
audit and the escrowholder's fee shall be borne by Landlord; otherwise the
cost of such audit and the escrowholder's fee shall be borne by Tenant.
Tenant shall pay all reasonable expenses of Landlord in connection with any
inspection or audit of Landlord's books and records hereunder (including
without limitation accounting or legal fees incurred by Landlord in
connection therewith), unless under the terms of this subparagraph 20(c)
Landlord is required to pay the cost of an audit for the calendar year
covered by Tenant's inspection or audit. If Tenant shall not request an
audit in accordance with the provisions of this subparagraph 20(c) within
ninety (90) days of receipt of Landlord's statement, such statement shall be
conclusively binding upon Tenant.
(d) Tenant's obligation under this Paragraph 20 for any fraction
of a calendar year at the end of the lease term shall be determined by prorating
Tenant's obligation hereunder on the basis which the number of days in such
fractional calendar year in the lease term bears to 365. If the lease term
terminates during a calendar year, additional rent payable hereunder, as
pro-rated, shall be due and payable when determined notwithstanding the
termination of this lease. If this lease shall be terminated by Landlord
pursuant to the default provisions of Paragraph 14, Tenant's liability under
this Paragraph 20 shall immediately be due and payable, based upon Landlord's
reasonable current projection as to likely excess actual Project Taxes and
Operating Expenses if the same are not yet then ascertainable with certainty,
with any such
14
projection and payment by Tenant subject to subsequent adjustment when the
actual applicable Project Taxes and operating Expenses can be determined.
For purposes of this Paragraph 20, Project Taxes and Operating Expenses for
any year (including the Base Year) during which the Project is not fully
occupied shall be calculated by projection as if the Project were 95%
occupied during the entire calendar year.
(e) For the purposes of this paragraph the following definitions
shall apply:
(1) "Project Taxes" shall include (a) all real estate
taxes, possessory interest taxes, personal property taxes levied upon, measured
by, or assessed to Landlord in connection with the Project other than taxes
covered by Paragraph 18, and any other taxes, charges and assessments
(including, without limitation, any taxes, charges or assessments for public
improvements, services or benefits, transit development fees, housing funds,
education funds, street highway or traffic fees, environmental charges, fees or
penalties imposed as a means of controlling or abating environmental degradation
or energy use (provided, however, that Project Taxes shall not include charges
based on the presence of Hazardous Substances), and taxes, charges or
assessments upon or measured by or for parking facilities) which are levied with
respect to or in connection with the Project, and any improvements, fixtures and
equipment and all other property of Landlord, real or personal, located in or
around the Project and used in connection with the operation of the Project; and
(b) any other tax, charge, assessment, fee or governmental imposition or charge
of every kind or nature whatsoever assessed to Landlord in connection with the
Project, any part thereof, or the premises (other than estate taxes, inheritance
taxes, or net income taxes payable against nonrental as well as rental income)
whether or not in addition to or in lieu of such real estate and possessory
interest or personal property taxes, whether or not now customary or within the
contemplation of the parties hereto, ordinary or extraordinary, foreseen or
unforeseen, or similar or dissimilar to any of the foregoing, including by way
of illustration but not limitation any and all taxes, impositions, charges, fees
or assessments upon, allocable to, or measured by the area of the premises or
the Project or on the rent payable hereunder or the rent payable on the premises
or the Project or any portion thereof, including without limitation any gross
income tax, excise tax or value added tax, levied by any governmental or
quasi-governmental entity with respect to the Project, any part thereof, or such
rent; and (c) the reasonable cost and expenses of contesting the amount or
validity of any of the foregoing taxes. In the event that it shall not be lawful
for Tenant to reimburse Landlord for Tenant's Share of any tax, as defined
herein, the rent payable to Landlord under this lease shall be revised to yield
to Landlord the same net rent from the premises after imposition of any such tax
upon Landlord as would have been received by Landlord hereunder prior to the
imposition of such tax. Notwithstanding anything to the contrary in this
paragraph, Tenant shall not be responsible for any increase in real property
taxes arising from any sale or transfer of the Project, or any interest therein,
or in Landlord, during the first five (5) years commencing with the commencement
of this lease. Tenant shall be responsible for Tenant's share of any increases
in real property taxes occasioned by changes in the existing real property tax
laws or regulations, or the enactment of any new real property tax laws or
regulations, after the date hereof.
(2) "Operating Expenses" shall mean all costs and expenses
of ownership, operation and maintenance of the Project (excluding depreciation
on the buildings
15
and improvements, all amounts paid on loans of Landlord, real estate brokers'
commissions, and expenses capitalized for federal income tax purposes except
as specified herein) including by way of illustration but not limited to:
utilities; supplies; insurance; business license, permit, inspection and
other authorization fees, charges, exactions and taxes; special charges or
assessments for services provided to the Project, including without
limitation sewer, water, fire or police protection; cost of services of
independent contractors (including without limitation accounting and legal
services and property management fees); cost of compensation (including
employment taxes and fringe benefits) of all persons who perform regular and
recurring duties connected with day-to-day operation, maintenance and repair
of the buildings, their equipment and the adjacent walks, malls, arcades,
atriums, balconies, roof gardens, parking area and landscaped areas,
including without limitation janitorial, scavenger, gardening and
landscaping, security, operating engineer, elevator, painting, plumbing,
electrical, carpentry, heating, ventilation, air-conditioning, window
washing, signing and advertising (but excluding persons performing services
not uniformly available to or performed for substantially all Project
tenants); maintenance and repair expenses, including but not limited to
capital expenditures required to meet changed government regulations and
governmental regulations for environmental protection or energy conservation,
and rental expenses for personal property to the extent used in the
maintenance, operation and repair of the Project; Landlord's reasonable
administration expense; and the reasonable cost of contesting the validity,
amount, or applicability of any governmental enactments or other expenses
which may affect Operating Expenses.
(3) "Tenant's Share" is agreed to be forty-three and 30/100
percent (43.3%).
21. SUBORDINATION. Tenant agrees that this lease shall be subject and
subordinate to any mortgage, deed of trust or like encumbrance heretofore or
hereafter placed upon the Project or the premises by Landlord or its successors
in interest, to secure the payment of monies loaned, interest thereon and/or
other obligations, and this lease also shall be subject and subordinate to any
ground lease or underlying lease heretofore or hereafter affecting the Project.
Notwithstanding the foregoing, in the event that, subsequent to the execution of
this lease, a new mortgage, deed of trust or like encumbrance on the premises is
created, or a ground lease or underlying lease to which this lease shall be
subordinate is entered into, then this lease shall be subject and subordinate to
such encumbrance or lease only if Landlord obtains from such mortgagor or lessor
a written agreement in form acceptable to such mortgagor or lessor, providing
substantially that Tenant's rights under this lease shall not be affected by any
foreclosure or deed in lieu of foreclosure of, or sale under such encumbrances
for so long as Tenant performs its obligations under this lease (or, in the case
of a ground lease or underlying lease, Tenant's rights shall not be affected by
any termination of such lease for so long as Tenant performs its obligations
under this lease). Tenant agrees to execute and deliver, upon demand of
Landlord, any and all instruments reasonably desired by Landlord, subordinating
in the manner requested by Landlord, this lease to such mortgage, deed of trust,
like encumbrance, ground lease, or underlying lease. On or before the
commencement date of this Lease, Landlord shall deliver to Tenant a recordable
non-disturbance agreement in favor of Tenant, in commercially reasonable form,
executed by Bank of America with respect to its mortgage lien encumbering the
Project.
16
22. OFFSET STATEMENT. Within ten (10) business days after request
therefor by Landlord, or in the event of any sale, assignment or
hypothecation of the premises and/or the Project or any portion thereof, by
Landlord, Tenant agrees to deliver in recordable form a certificate to any
proposed mortgagee, trust deed beneficiary or purchaser, or to Landlord, in
form reasonably satisfactory to the addressee, certifying as to (a) the date
of this lease and any amendments thereto, (b) the date upon which this lease
term commenced and will end, (c) the fact that this lease, as so amended is
in full force and effect and has not been modified except as stated, (d)
whether any rentals are then prepaid or unpaid hereunder, (e) whether any
defaults then exist hereunder, (f) whether Tenant claims any offsets or
defenses to any obligation imposed hereunder and (g) any other information
reasonably requested of Tenant. If Tenant is provided with a proposed form
of such certificate, and fails to execute same within ten (10) business days
after receipt thereof, Tenant agrees that such failure shall, at Landlord's
option, constitute an event of default under this lease. Tenant acknowledges
that any proposed mortgagee, trust deed beneficiary, or purchaser, or
Landlord, may rely on the truth of statements set forth in such certificate
as executed by Tenant.
23. ATTORNMENT. In the event of a termination of all or any part of
Landlord's interest in the building or the Project due to sale or other
disposition, or from any cause whatsoever or in the event of the foreclosure
of or exercise of a power of sale under any mortgage or deed of trust made by
Landlord covering the premises, Tenant shall attorn to and recognize as
Landlord hereunder, Landlord's assignee or successor in interest or the
purchaser at such foreclosure or sale in lieu thereof, as the case may be, on
condition that such assignee, successor or purchaser does not disturb
Tenant's possession under this lease (so long as no event of default exists
under Paragraph 14(a) hereof). Any such sale, disposition, or other
termination of Landlord's interest in the building or Project shall operate
to release Landlord from any liability thereafter arising under any of the
covenants or conditions of this lease, express or implied, in favor of
Tenant, and in such event Tenant agrees to look solely to the responsibility
of Landlord's successor in interest under this lease, as limited by Paragraph
29 hereof.
24. CONDEMNATION. Should the whole or any part of the premises be
condemned and taken by any competent authority for any public or quasi-public
use or purpose, or should Landlord receive written notice of any threatened
condemnation or taking, Landlord shall promptly notify Tenant in writing.
All awards payable on account of such condemnation and taking shall be
payable to Landlord, and Tenant hereby waives all interest in or claim to
said awards, or any part thereof; provided, however, that nothing contained
herein shall be deemed to give Landlord any interest in or require Tenant to
assign to the Landlord any award made payable to Tenant and specifically
designated as compensation for the taking of personal property and fixtures
belonging to Tenant and removable by Tenant at the expiration of the term of
the lease or for the interruption of or damage to Tenant's business or for
any costs or expenses of relocating Tenant's business. If the whole of the
premises shall be so condemned and taken, then this lease shall terminate
effective on the earlier of thirty (30) days after Landlord's delivery of a
notice to Tenant to such effect or the date upon which the condemning
authority takes possession. If a part only of the premises is condemned and
taken and the remaining portion thereof is not suitable for the purposes of
which Tenant had leased said premises, either Landlord or Tenant may
terminate this lease upon thirty days' notice to the other, which notice must
be
17
served on the other within ten (10) business days of Landlord's delivery of
the notice of condemnation to Tenant. If by such condemnation and taking a
part only of the premises is taken, and the remaining part thereof is
suitable for the purposes for which Tenant has leased said premises, this
lease shall continue, but the rental shall be reduced in an amount
proportionate to the value of the portion taken as it related to the total
value of the premises.
25. WAIVER OF REDEMPTION, HOLDING OVER. Tenant hereby waives for
Tenant and all those claiming under Tenant, all right now or hereafter
existing to redeem the leased premises after termination of Tenant's right of
occupancy by notice of termination by Landlord pursuant to Paragraph 14
hereof or by order or judgment of any court or by any legal process or writ.
If Tenant holds over after the term hereof, with or without the express or
implied consent of Landlord, such tenancy shall be from month to month only,
and not a renewal hereof or an extension for any further term, and in such
case the rent shall be increased to any amount which Landlord may specify in
a written notice to Tenant (but not exceeding 125% of the rent payable
hereunder immediately before expiration of the term), and all other payments
provided herein shall be payable in the amount and at the times specified in
this lease. Such month to month tenancy shall be subject to every other
term, covenant, and agreement contained herein except as to the term of this
lease.
26. ENTRY AND INSPECTION; CONFIDENTIALITY.
(a) Landlord and its agents shall have the right to enter into
and upon the premises at all reasonable times upon at least 24 hours oral
notice (which shall not be required in the case of emergency), for the
purpose of inspecting the same, or for the purpose of showing same to
prospective purchasers, mortgagees, or tenants, or for the purpose of
protecting the interest therein of Landlord or to post notices of
non-responsibility, or to make alterations or additions, to the premises or
to any other portion of the building in which the premises are situated,
including the erection of scaffolding or other mechanical devices, or to
provide any service provided by Landlord to Tenant hereunder, including
window cleaning and janitor service, without any rebate of rent to Tenant for
any loss of occupancy or quiet enjoyment of the premises, or damage, injury
or inconvenience thereby occasioned, provided that in all situations other
than an emergency Landlord shall exercise its rights hereunder in a manner
that will not unreasonably interfere with Tenant's use of the premises. For
each of the aforesaid purposes, Landlord shall at all times have and retain a
key with which to unlock all of the doors in, upon, and about the premises,
excluding Tenant's vaults and safes, or special security areas (designated in
a writing signed by Tenant and Landlord in advance), and Landlord shall have
the right to use any and all means which Landlord may deem necessary or
proper to open said doors in an emergency, without liability of Landlord to
Tenant, in order to obtain entry to any portion of the premises, and any
entry to the premises, or portions thereof obtained by Landlord by any of
said means, shall not under any circumstances be construed or deemed to be a
forcible or unlawful entry into, or a detainer of, the premises, or an
eviction, actual or constructive, of Tenant from the premises or any portions
thereof. Landlord shall make reasonable efforts to minimize any interference
with Tenant's use and enjoyment of the premises in making any such entry. In
connection with any such entry to the premises, Tenant may require that
Landlord or its agent or
18
contractor be accompanied by Tenant, provided that Tenant shall be available
for such accompaniment in accordance with Landlord's or its agent's or
contractor's schedule.
(b) Landlord acknowledges that Tenant's operations at the
premises will include the development, application and marketing of
confidential and proprietary trade secrets. If Tenant provides Landlord
written notice describing in reasonably sufficient detail certain areas
within the premises as secure areas, Landlord agrees to enter such areas only
after advance notice to Tenant and subject to accompaniment by Tenant, except
that such notice and accompaniment shall not be required in cases of
emergency, or upon expiration or earlier termination of this lease. Landlord
agrees to not disclose such confidential and/or proprietary information about
Tenant and its business; provided, however, that Landlord shall not be
precluded from making any disclosure compelled by a court or other
governmental entity.
(c) Subject to events of force majeure, acts of God, riot, war,
public disturbance, casualties, events beyond Landlord's control, and to the
necessity to limit or restrict access as may be required from time to time
for safety, repair or maintenance, Tenant shall have access to the premises
24 hours per day, seven days a week.
27. BUILDING PLANNING. Landlord shall have the right at any time,
without the same constituting an actual or constructive eviction and without
incurring any liability to Tenant therefor, to change the arrangement and/or
location of entrances or passageways doors and doorways, and corridors,
elevators, stairs, toilets, or other public parts of the building and the
Project, and to change the name, number or designation by which the building
or the Project is commonly known.
28. HAZARDOUS SUBSTANCES. Landlord represents and warrants to Tenant
that to the best of its knowledge as of the date of this lease, there are no
Hazardous Substances located in, on or under the building or the Project
other than as disclosed to Tenant in writing; provided that, for purposes of
the foregoing representation and warranty, "Hazardous Substances" shall mean
those substances which are as of the date of this lease regulated by local,
state or federal law or regulation requiring removal or other remediation,
warning or restrictions on use, generation, storage, disposal or
transportation to the extent those substances are present in quantities which
are deemed hazardous by such laws or regulations. For purposes of the
remainder of this Paragraph 28, "Hazardous Substances" shall mean those
substances which are now or hereafter regulated by local, state or federal
law or regulation requiring removal or other remediation, warning or
restrictions on use, generation, storage, disposal or transportation to the
extent those substances are present in quantities which are deemed hazardous
by such laws or regulations. Landlord shall indemnify and hold Tenant
harmless from and against all claims, costs, damages and liabilities,
including attorneys' fees and costs, arising out of or in connection with the
presence of any Hazardous Substances in, on or under the building or the
Project to the extent such presence is caused by Landlord or such presence
existed prior to the date of this lease. Landlord's obligations hereunder
shall survive the termination of this lease.
Tenant, at its sole cost, shall comply with all laws relating to its
storage, use, generation, transportation, disposal and release of Hazardous
Substances. If Tenant does store, use, generate,
19
transport or dispose of any Hazardous Substances, Tenant shall notify
Landlord in writing at least ten (10) days prior to their first appearance on
the premises; provided, however, that Tenant shall not have to give such
notice with regard to incidental quantities of any such Hazardous Substances
present in products stored, used or otherwise brought onto the premises for
general office and/or janitorial purposes. Tenant shall be solely
responsible for and shall defend, indemnify and hold Landlord and its agents,
employees and representatives harmless from and against all claims, costs,
damages and liabilities, including attorneys, fees and costs, arising out of
or in connection with Tenant's, or Tenant's agents, contractors or employees,
storage, use, generation, transport, disposal or release of Hazardous
Substances, including, without limitation, any such claims, costs, damages
and liabilities, including attorneys' fees and costs, arising out of or in
connection with any investigation, testing, removal, clean-up, remediation
and/or restoration services, work, equipment and materials necessary to
remove or otherwise satisfactorily remediate the contamination and any
related problems actually caused by Tenant's, or Tenant's agents, contractors
or employees, use, storage, generation, transportation, disposal or release
of Hazardous Substances in, on or around the premises or the Project; but it
is understood and agreed that Tenant shall not be responsible, and Landlord
releases Tenant from liability for, Hazardous Substances contamination in, on
or around the premises, including without limitation investigation, testing,
remediation and/or restoration costs related thereto, that is not actually
caused by the storage, use, generation, transport, disposal or release of
Hazardous Substances by Tenant or Tenant's agents, contractors or employees.
Tenant's obligations hereunder shall survive the termination of this lease.
If at any time during or after the term of this lease, as it may be extended,
Tenant becomes aware of any inquiry, investigation, administrative
proceeding, or judicial proceeding Joy any governmental agency regarding the
storage, use or disposition of any Hazardous Substances by Tenant or its
agents, contractors or employees on or about the premises or the Project,
Tenant shall within five (5) days after first learning of such inquiry,
investigation or proceeding give Landlord written notice advising Landlord of
same. Landlord and Tenant agree that this Paragraph 28 is intended to
delineate the parties' respective rights and obligations regarding the
presence of Hazardous substances in, on or around the premises or the Project
and that other provisions of this lease shall not be construed to expand, or
limit, such rights or obligations.
29. LIMITATION ON LANDLORD'S LIABILITY. In the event of any actual or
alleged failure, breach or default by Landlord hereunder pertaining to the
premises, the building, or the Project, Tenant shall give Landlord written
notice of such default and Landlord shall not be deemed in default hereunder
unless Landlord fails to cure such default within thirty (30) days after
receipt of such written notice (or such longer period as is reasonably
necessary to remedy such default, provided that Landlord shall, within such
thirty (30) day period, commence and thereafter diligently pursue such remedy
until such default is cured). If Landlord fails to cure such default in the
applicable time period, Tenant may elect to cure such default, and Landlord
shall reimburse Tenant the reasonable costs of such cure within thirty (30)
days after its receipt of documentation of such costs. If Landlord fails to
make such payment when due, Tenant may deduct the amount of such costs from
its monthly base rental payment, provided that the amount of the deduction in
any one month shall not exceed fifty percent (50%) of the base rental amount
due for such month, and provided further that Tenant shall not be entitled to
exercise such deduction right with respect to base monthly rental payments
for more than four months in any
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twelve month period during the term of this Lease. In consideration of the
benefits accruing to Tenant hereunder, Tenant agrees for itself and its
successors and assigns that in the event of any such failure, breach or
default or of any damage to Tenant from any act or omission of Landlord
pertaining to the premises or the Project, the sole and exclusive remedy of
Tenant shall be against Landlord's interest in the Project, that any judgment
obtained against Landlord, or any person who owns an interest in the building
or land shall be satisfied solely by execution of the judgment and levy
against the right, title and interest of Landlord or such person in the
Project, and rentals therefrom. Neither Landlord, nor any such person who
owns any interest whatsoever in the Project, shall be personally liable for
any deficiency after such execution and levy. Notwithstanding the foregoing,
Tenant shall have recourse against Landlord for any loss incurred by Tenant
as a result of Landlord's failure to carry the insurance required under this
lease, or the failure of an assignee of Landlord to whom Landlord has sold or
transferred its interest in the Project to assume liability for the defaults
or obligations of Landlord which accrued prior to the date of such sale or
transfer.
30. SUCCESSORS AND ASSIGNS. Subject to the provisions hereof relating
to assignment, mortgaging, pledging and subletting, this lease is intended to
and does bind the heirs, executors, administrators, successors and assigns of
any and all of the parties hereto.
31. SECURITY. Tenant has deposited with Landlord the sum of
Forty-Seven Thousand Three Hundred Twenty-Two Dollars ($47,322.00) as the
Security Deposit for the full and faithful performance of every provision of
this lease to be performed by Tenant. Title to the Security Deposit has been
transferred to Landlord subject only to Tenant's right to the return of the
security Deposit as set forth below. If Tenant defaults with respect to any
provision of this lease, Tenant's right to the return of the Security Deposit
shall terminate to the extent of any payments then past due hereunder, and
Landlord may apply all or any part of the Security Deposit for the payment of
any rent or other sum in default, the repair of such damage to the premises
or the payment of any other amount which Landlord may spend or become
obligated to spend by reason of Tenant's default or to compensate Landlord
for any other loss or damage which Landlord may suffer by reason of Tenant's
default to the full extent permitted by law. If any portion of the Security
Deposit is so applied, Tenant shall, within five (5) days after written
demand therefor, deposit cash with Landlord in an amount sufficient to
restore the Security Deposit to its original amount. Landlord shall not be
required to keep the Security Deposit separate from its general funds, and
Tenant shall not be entitled to interest on the Security Deposit. If Tenant
is not otherwise in default, the Security Deposit or any balance thereof
shall be returned to Tenant at its last address known to Landlord within
thirty (30) days of termination of the lease.
32. PARKING. Landlord agrees that Tenant shall be provided on a
non-exclusive basis and at no additional cost with 112 non-reserved
automobile parking spaces. Such number of parking spaces shall be subject to
pro rata adjustment if a lesser or greater area shall hereafter be contained
in the definition of the premises subject to this lease. Said parking spaces
shall be located in the parking area which is part of the Project. Landlord
shall keep the parking area clean, lighted and in good repair. Landlord shall
not oversubscribe parking at the Project. Landlord may designate certain
parking areas as Visitors' Parking, to be reserved for guests
21
and/or visitors of the Project, and Tenant and Tenant's employees shall not
park in areas designated for Visitors' Parking. Additionally, Landlord
agrees that Tenant shall be provided on an exclusive basis and at no
additional cost with fifteen (15) reserved automobile parking spaces. Said
reserved parking spaces shall be properly marked by Landlord as "Reserved."
The location of the reserved parking stalls is identified in Exhibit C.
Landlord shall have no policing or enforcing responsibilities with respect to
the reserved spaces.
33. SUITE AND BUILDING IDENTIFICATION. Landlord will provide, at
Landlord's expense, Tenant's name plate and suite number on Tenant's suite
door using building standard design and materials and shall provide lobby
directory signage for Tenant and a reasonably limited number of key employees
in building standard design. Tenant shall be permitted monument signage at
the front of the building at Tenant's sole expense, subject to Landlord's
reasonable approval and provided that Tenant shall be responsible for
compliance with applicable codes and regulations.
34. RULES AND REGULATIONS. The rules and regulations attached to this
lease, as well as such reasonable rules and regulations as may be hereafter
adopted by Landlord for the safety, care and cleanliness of the premises and
the operation of the Project, and the preservation of good order thereon, are
hereby expressly made a part hereof, and Tenant agrees to comply with them.
Landlord shall not be liable to any person, including Tenant, for the failure
of any other tenant or person to observe such rules and regulations.
35. TIME. Time is of the essence of this lease.
36. LEASE EXAMINATION AND EXECUTION. Tenant acknowledges that
submission of this lease for examination by Tenant does not constitute a
reservation or option for lease, and that this lease is not and shall not be
effective until (a) Tenant has delivered to Landlord at least three originals
of this lease, fully executed by Tenant, accompanied by payment to Landlord
of a sum equal to the sum of (i) one month's rent hereunder, which shall be
applied toward Tenant's rental obligations under Paragraph 3 hereof upon
commencement of this lease, and (ii) the amount of the security deposit
provided in Paragraph 31 hereof; and (b) Landlord has delivered to Tenant at
least one fully executed original of this lease. Tenant, and each person
executing this lease on behalf of Tenant, represent and warrant that this
lease is duly executed by Tenant, and that the persons executing this lease
on behalf of Tenant are duly authorized so to do and to bind Tenant to the
obligations set forth in this lease. Landlord, and each person executing
this lease on behalf of Landlord, represent and warrant that this lease is
duly executed by Landlord, and that the persons executing this lease on
behalf of Landlord are duly authorized so to do and to bind Landlord to the
obligations set forth in this lease.
37. MISCELLANEOUS. This lease shall constitute the entire agreement
of the parties pertaining to the premises and all prior agreements and
representations of the parties (except representations of Tenant concerning
its financial condition), whether written or oral, shall be superseded by
this lease. This lease may not be amended or modified except by written
agreement duly executed by the parties hereto. This lease shall be
interpreted as follows: (a) according to the fair meaning of the language
without strict construction against either party;
22
(b) under the laws of the state of California; (c) by disregarding captions,
which shall have no significance except convenience; (d) by substituting
appropriate gender where required; and (e) by substituting the plural for the
singular, and vice versa, where the context requires. If any provision of
this lease is found to be unenforceable or otherwise invalid, such
unenforceable provision shall be deemed separable and the remaining
provisions of this lease shall remain in full force and effect. Landlord's
and Tenant's covenants shall survive termination of this lease where
reasonably appropriate to accomplish the purpose thereof. Tenant, at its
sole cost and expense, may cause to be prepared a memorandum of lease to be
executed by the parties, in form reasonably acceptable to Landlord, which may
be recorded by Tenant in the Official Records of San Mateo County,
California. Upon the expiration or earlier termination of this lease, Tenant
shall cause to be prepared and recorded in the Official Records of San Mateo
County, California, at its sole cost and expense, a quitclaim deed to be
executed by Tenant, in form reasonably acceptable to Landlord.
38. EXHIBITS. Exhibit A hereto, Exhibit B hereto, Exhibit C hereto,
the Rules and Regulations attached hereto as Exhibit D, and any other Exhibit
or Addendum which is initialed or signed by Landlord and Tenant and attached
hereto shall be considered a part of this lease for all purposes.
39. BROKERS. Landlord and Tenant each warrants that it ha s had no
dealings with any real estate brokers or agents in connection with the
negotiation of this lease excepting only Cornish and Xxxxx Commercial and The
CAC Group and it knows of no other real estate broker or agent who is
entitled to a commission in connection with this lease.
40. NO LIGHT, AIR OR VIEW EASEMENT. Any diminution or shutting off of
light, air or view by any structure which is now or may hereafter be erected
on lands adjacent to the Project shall in no way affect this lease or impose
any liability on Landlord. Noise, dust or vibration or other incidents to
new construction of improvements on lands adjacent to the Project, whether or
not by Landlord, shall in no way affect this lease or impose any liability on
Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have executed these presents the
day and year first above written.
LANDLORD: TENANT:
THE XXXXXX AND XXX XXXX ELECTRONICS FOR IMAGING,
REVOCABLE TRUST a California corporation
By: By:
------------------------------ ------------------------------
Its: Its:
------------------------- --------------------------
By: By:
------------------------------ ------------------------------
Its: Its:
------------------------- --------------------------
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EXHIBIT A
[CAMPUS DRIVE FLOOR MAPS]
FIRST ADDENDUM TO LEASE
THIS FIRST ADDENDUM TO LEASE ("First Addendum") is dated for reference
purposes as of July 30, 1992, and is made between The Xxxxxx and Xxx Xxxx
Revocable Trust ("Landlord") and Electronics for Imaging ("Tenant") to be a
part of that certain Agreement of Lease, of even date herewith, between
Landlord and Tenant (herein the "Lease Form") concerning 32,863 rentable
square feet of space (the "Premises") located at 0000 Xxxxxx Xxxxx (xxx
"Xxxxxxx"), Xxx Xxxxx, Xxxxxxxxxx. Landlord and Tenant agree that the Lease
Form is modified and supplemented by this First Addendum.
1. COMMENCEMENT DATE. Notwithstanding anything to the contrary in
the Lease Form:
A. The Lease shall commence (the "Commencement Date") on the
later of November 1, 1992, and the first to occur of (i) the date by which
all of the following have occurred: (a) Landlord has substantially completed
the tenant improvements described in EXHIBIT B to the Lease Form (the "Tenant
Improvements") in accordance with such EXHIBIT B, (b) Landlord has delivered
possession of the Premises to Tenant; and (c) Landlord has obtained all
approvals and permits from the appropriate governmental authorities required
for the legal occupancy of the Premises for general office use, or (ii) the
date by which the conditions specified in part (i) hereof would have been
satisfied but for Tenant Delay, as defined in EXHIBIT B.
B. If the Commencement Date has not occurred for any reason
other than Tenant Delay on or before November 1, 1992, then in that event
Tenant shall not be liable for any rent until such time as Landlord shall
deliver possession of said premises to Tenant. If the Commencement Date has
not occurred for any reason other than Tenant Delay, as defined in EXHIBIT B
by February 1, 1993, then Tenant may terminate this Lease by written notice
to Landlord, whereupon any monies previously paid by Tenant to Landlord shall
be reimbursed to Tenant.
2. RENT. Notwithstanding anything to the contrary in the Lease Form,
all base rent and additional rent shall be equitably prorated to reflect the
commencement and termination dates of the Lease.
3. ACCEPTANCE OF PREMISES. Notwithstanding anything to the contrary
in the Lease Form:
A. Tenant's acceptance of the Premises shall not be deemed a
waiver of Tenant's right to have defects caused by Landlord or Landlord's
contractor in the Tenant Improvements or the Premises repaired at Landlord's
expense.
B. Landlord warrants and represents that as of the Commencement
Date the Premises will be in good condition and repair and the electrical,
mechanical, HVAC, plumbing,
elevator and other systems serving the Premises and the Building will be in
good condition and repair.
4. COMPLIANCE WITH LAWS. Notwithstanding anything to the contrary in
the Lease Form, at the Commencement Date, the Premises and the Project shall
conform to all requirements of applicable covenants, conditions, restrictions
and encumbrances ("CC&R's"), all underwriter's requirements, and all rules,
regulations, statutes, ordinances, laws and building codes (collectively,
"Laws") applicable thereto.
5. USE OF PREMISES. Notwithstanding anything to the contrary in the
Lease Form, to Landlord's knowledge, as of the Commencement Date, Landlord
represents and warrants that Tenant's use of the Premises, as described in
Paragraph 4 of the Lease Form, is permitted by all Laws, CC&R's, and fire
underwriter's requirements and that electricity, water, janitorial, heating,
ventilating, air conditioning and other services, at the levels generally
provided for office uses in comparable buildings in the vicinity of the
Premises, will be available to the Premises at all times during the Lease
term, subject to Paragraph 8 of the Lease Form, and subject to events beyond
Landlord's control.
6. ALTERATIONS ADDITIONS AND IMPROVEMENTS. Notwithstanding anything
to the contrary in the Lease Form:
A. NONSTRUCTURAL. Provided that Tenant shall deliver to
Landlord a copy of all final plans, specifications and working drawings for
any such work at least ten (10) days before commencing such work, Tenant may
construct nonstructural alterations, additions and improvements
("Alterations") in the Premises without Landlord's prior approval which (i)
do not affect any area outside the Premises, (ii) do not affect the
Building's structure, equipment, services or systems, or the outside
appearance or use of the Premises or Building, and (iii) does not cost more
than Twenty-Five Thousand Dollars ($25,000). If Landlord's consent is
required for an Alteration and Landlord does not notify Tenant in writing of
its approval or disapproval within fifteen (15) days following Tenant's
written request for approval (provided Tenant's request must specify that
failure to respond shall be deemed approval), then Landlord shall be deemed
to have approved the proposed Alteration. Tenant shall insure that all work
done by Tenant or its contractors, agents or employees complies with all
Laws, and Tenant shall obtain all necessary permits and approvals, at
Tenant's cost, copies and/or other acceptable documentation of which shall be
provided to Landlord prior to commencement of any work.
B. REMOVAL. Upon Tenant's written request, Landlord shall
advise Tenant in writing whether it reserves the right to require Tenant to
remove any Alterations from the Premises upon termination of the Lease.
C. TENANT'S PROPERTY. All Alterations, trade fixtures and
personal property installed in the Premises at Tenant's expense ("Tenant's
Property") shall at all times remain Tenant's property and Tenant shall be
entitled to all depreciation, amortization and other tax benefits with
respect thereto. Except for Alterations which cannot be removed without
structural injury to the Premises, at any time Tenant may remove Tenant's
Property from the Premises, provided Tenant repairs all damage caused by such
removal.
2
X. XXXX WAIVER. Landlord shall have no lien or other interest
whatsoever in any item of Tenant's Property, or any portion thereof or
interest therein located in the Premises or elsewhere, and Landlord hereby
waives all such liens and interests. Within ten (10) business days after
receipt of Tenant's written request (and acceptable documents), Landlord
shall execute documents reasonably necessary to evidence Landlord's waiver of
any right, title, lien or interest in Tenant's Property located in the
Premises.
E. INSURANCE. Tenant shall have no obligation to insure any
property in the Premises, other than as required in the Lease Form, from fire
or any other casualty and Tenant shall be entitled to all insurance proceeds
and condemnation awards and settlements payable with respect to Tenant's
Property.
F. SALE OF TENANT'S PROPERTY. Landlord shall provide Tenant
with at least five (5) days prior written notice of any sale of Tenant's
Property by Landlord.
7. REPAIRS AND MAINTENANCE. Notwithstanding anything to the contrary
in the Lease Form:
A. Landlord shall perform and construct, and (except to the
extent any such performance, repair, maintenance or improvement is an
obligation of Tenant under the Lease Form or this Addendum, or is required
due to the act or omission of Tenant, its agents, contractors, employees,
invitees or licensees, or due to a breach of this Lease by Tenant) Tenant
shall have no responsibility to perform or construct, any repair, maintenance
or improvement (i) necessitated by the acts or omissions of Landlord or its
agents, employees or contractors, (ii) required as a consequence of any
violation of Law or construction defect in the Premises or the Project as of
the Commencement Date caused by Landlord or its contractors, and (iii) to the
heating, ventilating, air conditioning, electrical, water, sewer, and
plumbing systems serving the Premises or the Project. Tenant's obligation,
if any, to reimburse Landlord for the costs of such repairs, maintenance and
improvements shall be governed by the other provisions of this Lease. Tenant
shall not be required to perform or construct any repair, maintenance or
improvement necessitated by the acts or omissions of any other occupant of
the Project or its agents, employees or contractors.
B. CAPITAL IMPROVEMENTS. If any of Tenant's obligations under
the Lease (as modified by this First Addendum) require Tenant to pay all or
any portion of any charge which could be treated as a capital improvement
under generally accepted accounting principles, then Tenant shall pay its
share of such expense as follows:
1. The cost of such improvement shall be amortized over
the useful life of the improvement (as reasonably determined by Landlord)
with interest on the unamortized balance at the then prevailing market rate
Landlord would pay if it borrowed funds to construct such improvements from
an institutional lender, and Landlord shall inform Tenant of the monthly
amortization payment required to so amortize such costs, and shall also
provide Tenant with the information upon which such determination is made.
3
2. Tenant shall pay Tenant's Share of such amortization
payment for each month after such improvement is completed until the first to
occur of (i) the expiration of the Lease term or (ii) the end of the term
over which such costs were amortized, which amount shall be due at the same
time the base monthly rent is due.
8. EXPENSES. Notwithstanding anything to the contrary in the Lease
Form:
"Operating Expenses" shall be defined to exclude the following
repairs, maintenance, improvements, replacements, premiums, claims, losses,
fees, charges, costs and expenses (collectively, "Costs"), nor shall any
portion of any Tenant Improvement allowance be applied to such costs:
A. LOSSES CAUSED BY OTHERS. Costs incurred with respect to
repairs required due to the negligent act or omission or violation of Law by
Landlord, any other occupant of the Project, or their respective agents,
employees or contractors.
B. CASUALTIES. Costs occasioned by fire, acts of God, or other
casualties to the extent such costs are covered by, or are required to be
covered by, Landlord's insurance specified in this lease.
C. CAPITAL IMPROVEMENTS. Costs relating to repairs,
alterations, improvements, equipment and tools which would properly be
capitalized under generally accepted accounting principles, except to the
extent that (i) the foregoing reduces Operating Expenses and (ii) such Cost
is amortized in an annual amount equal to the amortization of such costs over
the useful life of the capital item in question.
D. REIMBURSED EXPENSES. Costs for which Landlord actually
receives reimbursement from others, provided that Landlord shall use
commercially reasonable efforts to obtain such reimbursements to which it is
entitled.
E. REAL ESTATE TAXES. Taxes, assessments, all other
governmental levies, and any increases in the foregoing occasioned by or
relating to (i) construction of improvements for other occupants of the
Project, and (ii) a change of ownership of any interest of Landlord in the
Project during the term of the Lease, as extended pursuant to the terms
hereof, if (a) to any person or entity affiliated with or related to
Landlord, or the beneficiaries, partners, officers, shareholders or directors
which comprise Landlord, or (b) in connection with Landlord's estate planning.
F. CONSTRUCTION DEFECTS. Costs to correct any construction
defect in the Premises or the Project (except for defects in work or items
installed by Tenant or its contractors) or to correct a violation by Landlord
of any CC&R's, underwriter's requirement or Law applicable to the Premises or
the Project on the Commencement Date.
G. UTILITIES OR SERVICES. Costs (i) arising from the
disproportionate use of any utility or service supplied by Landlord to any
other occupant of the Project, or (ii) associated with utilities and services
of a type not provided to Tenant.
4
H. INTERIOR IMPROVEMENTS. The cost of any renovation,
improvement, painting or redecorating of space for other tenants of the
Project.
I. LEASING EXPENSES. Fees, commissions, attorneys' fees, Costs
or other disbursements incurred in connection with negotiations or disputes
with any other occupant of the Project. Costs arising from the violation by
Landlord or any occupant of the Project (other than Tenant) of the terms and
conditions of any lease or other agreement.
J. RESERVES. Depreciation, amortization, or other expense
reserves, except to the extent amortization is otherwise expressly permitted
by this lease.
K. MORTGAGES. Interest, charges and fees incurred on debt,
payments on mortgages and rent under ground leases.
L. INSURANCE. Increases in insurance costs after the
Commencement Date caused by the activities of another occupant of the
Project, and co-insurance payments. Deductibles in excess of $5,000 for the
insurances carried by Landlord hereunder. Premiums for earthquake and flood
damage insurance, unless such insurance is required by an institutional
lender providing financing for the building or Project, but in no event shall
Tenant be required to pay in excess of Tenant's Share of $20,000 annually as
its share of such insurance.
M. HAZARDOUS SUBSTANCES. Costs incurred to investigate the
presence of any Hazardous Substance (defined in the Lease Form), Costs to
respond to any claim of Hazardous Substance contamination or damage, Costs to
remove any Hazardous Substance from the Project and any judgments or other
Costs incurred in connection with any Hazardous Substance exposure or
releases, except to the extent caused by the storage, use, release, transport
or disposal of the Hazardous Substance in question by Tenant.
N. MANAGEMENT. Any fee in excess of the management fee which
would be charged by an independent professional management service for
operation of comparable projects in the vicinity.
O. DUPLICATION. Costs and expenses for which Tenant reimburses
Landlord directly or which Tenant pays directly to a third party.
9. INDEMNITY. Notwithstanding anything to the contrary in the Lease
Form (but subject to the last paragraph of Paragraph 9 and to Paragraph 29
thereof):
A. NEGLIGENCE OR MISCONDUCT. Tenant shall neither release
Landlord from, nor indemnify Landlord with respect to: (i) the negligence or
willful misconduct of Landlord or its agents, employees, or contractors, or
(ii) a breach of Landlord's obligations or representations under this Lease.
B. LANDLORD'S INDEMNIFICATION. Except to the extent of Tenant's
negligence or willful misconduct, Landlord shall indemnify, defend, protect and
hold harmless Tenant from all losses, costs, claims and damages, including
reasonable attorneys' fees and expenses to the
5
extent the foregoing results from the negligence or willful misconduct of
Landlord or its agents, employees, contractors, licensees or invitees, or the
breach by Landlord of Landlord's obligations or representations under this
Lease.
10. COMMON AREAS. Notwithstanding anything to the contrary in the
Lease Form, if Landlord is permitted to alter any common area of the Project,
such alteration shall not unreasonably interfere with Tenant's use of or
access to the Premises or Tenant's parking rights.
11. RULES AND REGULATIONS. Notwithstanding anything to the contrary
in the Lease Form, Tenant shall comply with all new nondiscriminatory rules
or regulations which do not unreasonably interfere with Tenant's use of or
access to the Premises or Tenant's parking rights.
12. REASONABLE EXPENDITURES. Notwithstanding anything to the contrary
in the Lease Form, any expenditure by a party permitted or required under the
Lease, for which such party is entitled to demand and does demand
reimbursement from the other party, shall be limited to the fair market value
of the goods and services involved, shall be reasonably incurred, and shall
be substantiated by documentary evidence available for inspection and review
by the other party or its representative during normal business hours.
13. SURRENDER. Notwithstanding anything to the contrary in the Lease
Form, Tenant's obligation to surrender the Premises shall be fulfilled if
Tenant surrenders possession of the Premises in the condition existing at the
commencement of the Lease, ordinary wear and tear, acts of God, casualties,
condemnation, Hazardous Substances (other than those stored, used or disposed
of by Tenant in or about the Premises or Project or for which Tenant is
otherwise responsible), and interior improvements which Landlord has not
stated in writing must be removed at the termination of the Lease excepted.
14. DAMAGE OR DESTRUCTION. Notwithstanding anything to the contrary
in the Lease Form:
A. LANDLORD'S INSURANCE. Landlord shall carry the following
insurance: All risk, extended coverage property and casualty insurance for
the full replacement value of the Project and comprehensive general liability
insurance in the amount of $1,000,000 per occurrence. Landlord's casualty
insurance shall contain a "building ordinance" endorsement with respect to
reconstruction costs arising out of changes in applicable building codes.
B. UNINSURED CASUALTY. Subject to the parties' rights to
terminate this Lease pursuant to the first sentence of Paragraph 11 of the
Lease Form, in the case of damage which is relatively minor (e.g., repair or
restoration would take fewer than ninety (90) days and would cost less than
five percent (5%) of the replacement cost of the Building), or if Tenant
agrees to pay the cost of repair in excess of a pre-agreed base amount,
Landlord shall, at Landlord's cost (provided that Tenant shall be responsible
for any repairs required due to the act or omission, or negligence or other
fault of Tenant, its agents, contractors, employees, invitees or licensees)
repair such damage regardless of whether insurance proceeds are available to
make such repairs.
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C. TENANT'S RIGHT TO TERMINATE. Landlord shall notify Tenant
within fifteen (15) business days following any damage to or destruction of
the Premises (or the Building if such damage or destruction interferes with
Tenant's use of the Premises) the length of time Landlord reasonably
estimates to be necessary for repair or restoration. Tenant shall have the
right to terminate the Lease provided in Paragraph 11 of the Lease Form.
D. CONSTRUCTION STANDARD. In repairing the Premises, Landlord
may use designs, plans and specifications other than those used in the
original construction, and may alter or relocate the premises, provided that
the premises as altered or relocated shall be in all material respects
reasonably comparable to the premises as defined herein.
15. EMINENT DOMAIN. Notwithstanding anything to the contrary in the
Lease Form, Tenant shall be entitled to pursue with and receive from the
condemning authority a separate award for a portion of the condemnation
proceeds (whether by award or payment under threat of condemnation) based on:
(i) the Lease bonus value (the difference between the Lease rent and fair
market value rent); (ii) the value of the condemned improvements Tenant has
the right to remove from the Premises; (iii) the unamortized value, allocable
to the remainder of the Lease term, of any improvements installed at Tenant's
expense, which are not removable; (iv) Tenant's moving cost; (v) loss to
Tenant's goodwill as a consequence of the condemnation; and (vi) Tenant's
trade fixtures.
16. QUIET POSSESSION. Notwithstanding anything to the contrary in the
Lease Form, Tenant shall peacefully have, hold and enjoy the Premises,
subject to the other terms of this Lease, provided that Tenant pays the rent
and performs all of Tenant's covenants and agreements contained in this
Lease. This covenant and the other covenants of Landlord contained in this
Lease shall be binding upon Landlord and its successors only with respect to
breaches occurring during its and their respective ownerships of Landlord's
interest hereunder.
17. OFFSET STATEMENTS, RECIPROCAL OBLIGATION. Notwithstanding
anything to the contrary in the Lease Form, Section 22 of the Lease Form
shall be deemed to impose a reciprocal obligation on Landlord for the benefit
of Tenant.
18. LANDLORD'S DEFAULT. If Landlord's failure to perform any of its
obligations under the Lease results in a condition which is causing or
threatens to cause immediate damage to Tenant's personnel or property, then
Landlord shall repair such condition as soon as possible after receiving
notice from Tenant.
19. EFFECT OF ADDENDUM. Each term used herein with initial capital
letters shall have the meaning ascribed to such term in the Lease Form unless
specifically otherwise defined herein. In the event of any inconsistency
between this First Addendum and the Lease Form, the terms of this First
Addendum shall prevail. As used herein, the term "Lease" shall mean the
Lease Form, this First Addendum and all riders, exhibits, rules, regulations,
covenants, conditions and restrictions referred to in the Lease Form or this
First Addendum.
20. OPTION TO EXTEND. Notwithstanding anything to the contrary in the
Lease Form:
7
X. XXXXX OF OPTION. Landlord hereby grants to Tenant two
consecutive option(s) (the "Extension Option(s)") to extend the term of this
Lease, each for an additional term of three (3) years, commencing when the
then-existing term expires, upon the terms and conditions set forth in this
Paragraph.
B. EXERCISE OF EXTENSION OPTIONS. Tenant must exercise such
Extension Option(s) by giving Landlord written notice of its intention not
less than nine (9) months prior to the expiration of the then-existing term
of this Lease. If Tenant fails to exercise its first extension option, it
shall be deemed to have waived the second such option.
C. EXTENDED TERM RENT. If the Extension Option(s) are timely
exercised, in accordance herewith, the base rent for the Premises shall be
based upon the then current fair market monthly rent ("Fair Market Rent") for
the Premises as of the commencement date of the applicable extended term, as
determined by the agreement of the parties or, if the parties cannot agree by
the date which is seven (7) months prior to the commencement of such extended
term, then by an appraisal. The base rent for the Premises during each
extended term shall equal one hundred percent (100%) of Fair Market Rent, if
such Fair Market Rent is less than the base rent payable by Tenant for the
month immediately prior to commencement of such extended term. Otherwise,
base rent during such extended term shall equal the greater of ninety-five
percent (95%) of Fair Market Rent or One and 44/100 Dollars ($1.44) per
rentable square foot of the Premises. All other terms and conditions
contained in the Lease and this First Addendum, as the same may be amended
from time to time by the parties in accordance with the provisions of the
Lease, shall remain in full force and effect and shall apply during the
extension term(s). Landlord shall be at no expense (other than applicable
leasing commissions, if any) in connection with Tenant's election to extend
the Lease term (including without limitation not being obligated to pay for
additional tenant improvements in connection with such extended term) and
Tenant shall accept the Premises during the extended term in their
then-existing condition. Notwithstanding the foregoing, if Tenant exercises
its first renewal option, Landlord, at Landlord's sole expense, shall touch
up the walls of the leased Premises, as needed, and shampoo the carpet. If
Tenant properly exercises its second renewal option, Landlord, at Landlord's
sole expense, shall repaint and recarpet the leased Premises at its sole
expense.
D. APPRAISAL. If it becomes necessary to determine the fair
market rental value for the Premises by appraisal, real estate brokers
(referred to hereafter as "appraisers"), all of whom shall be licensed real
estate brokers who have at least five (5) years experience appraising and/or
leasing office space located in the vicinity of the Premises shall be
appointed and shall act in accordance with the following procedures:
(i) If the parties are unable to agree on the Fair
Market Rent within the allowed time, either party may demand an appraisal by
giving written notice to the other party, which demand to be effective must
state the name, address and qualifications of an appraiser selected by the
party demanding an appraisal (the "Notifying Party"). Within ten (10) days
following the Notifying Party's appraisal demand, the other party (the
"Non-Notifying Party") shall either approve the appraiser selected by the
notifying party or select a second properly qualified appraiser by giving
written notice of the name, address and qualification of said
8
appraiser to the Notifying Party. If the Non-Notifying Party fails to select
an appraiser within the ten (10) day period, the appraiser selected by the
Notifying Party shall be deemed selected by both parties and no other
appraiser shall be selected. If two appraisers are selected, they shall
select a third appropriately qualified appraiser. If the two appraisers fail
to select a third qualified appraiser, the third appraiser shall be appointed
by the then presiding judge of the county where the Premises are located upon
application by either party.
(ii) If only one appraiser is selected, that appraiser
shall notify the parties in simple letter form of its determination of the
Fair Market Rent for the Premises within fifteen (15) days following his
selection, which appraisal shall be conclusively determinative and binding on
the parties as the appraised Fair Market Rent.
(iii) If multiple appraisers are selected, the appraisers
shall meet not later than ten (10) days following the selection of the last
appraiser. At such meeting the appraisers shall attempt to determine the Fair
Market Rent for the Premises as of the commencement date of the extended term
by the agreement of at least two (2) of the appraisers.
(iv) If two (2) or more of the appraisers agree on the
Fair Market Rent for the Premises at the initial meeting, such agreement
shall be determinative and binding upon the parties hereto and the agreeing
appraisers shall, in simple letter form executed by the agreeing appraisers,
forthwith notify both Landlord and Tenant of the amount set by such
agreement. If multiple appraisers are selected and two (2) appraisers are
unable to agree on the Fair Market Rent for the Premises, all appraisers
shall submit to Landlord and Tenant an independent appraisal of the Fair
Market Rent for the Premises in simple letter form within twenty (20) days
following appointment of the final appraiser. The parties shall then
determine the Fair Market Rent for the Premises by averaging the appraisals;
provided that any high or low appraisal, differing from the middle appraisal
by more than ten percent (10%) of the middle appraisal, shall be disregarded
in calculating the average.
(v) The appraisers' determination of Fair Market Rent
shall be based on rental of space of the same age, construction, size and
location as the Premises, taking into account the improvements installed
therein at Landlord's expense and Tenant's obligations to pay additional rent
under this Lease. In determining Fair Market Rent, the appraisers shall not
consider any alterations installed in the Premises at Tenant's expense.
(vi) If only one appraiser is selected, then each party
shall pay one-half of the fees and expenses of that appraiser. If three
appraisers are selected, each party shall bear the fees and expenses of the
appraiser it selects and one-half of the fees and expenses of the third
appraiser.
(vii) If the process described above for selection of Fair
Market Rent has not resulted in a determination of such rent by the
commencement of the applicable lease term, then Tenant shall continue to pay
rent in the amounts then payable under this Lease prior to the commencement
of the applicable extended term, until the appraiser(s) reach a decision,
with an appropriate rental adjustment and other adjustments for any
overpayment or underpayment of
9
rent or other amounts if the above described process subsequently results in
a different rate for the Fair Market Rent than is then payable hereunder.
21. PHASE TWO EXPANSION. Tenant shall further lease from Landlord the
additional space (the "Phase Two Space") located on the second floor of the
Building consisting of 2,536 rentable square feet and 2,255 useable square
feet as shown on EXHIBIT "A" to the Lease Form as the "Phase Two Space".
Landlord shall, at Landlord's sole expense, construct the improvements to the
Phase Two Space described in the Final Plans. Landlord shall construct such
improvements in accordance with EXHIBIT "B" to the Lease Form, except that
Landlord estimates that such improvements shall be substantially complete by
February 1, 1993. As of the later of February 1, 1993 or the first to occur
of (i) the date by which all of the events described in clause (i) of
Subparagraph 1(A) of this First Addendum have occurred with respect to such
improvements and the Phase Two Space, or (ii) the date by which the events
specified in such part (i) would have occurred but for Tenant Delay(s) as
defined in EXHIBIT B, the Phase Two Space shall be deemed a portion of the
Premises, base monthly rent for the Premises shall be increased to Fifty
Thousand Nine Hundred Seventy-Four Dollars ($50,974.00), and the Tenant's
Share shall equal 46.64%. Promptly thereafter, Landlord and Tenant shall
execute an amendment to this Lease confirming the effective date of such
expansion of the Premises to include the Phase Two Space. The expansion of
the Premises to include the Phase Two Space shall further be subject to
Subparagraph 1(B) of this First Addendum, except that "May 1, 1993," shall be
substituted for "February 1, 1993."
22. OPTIONS TO EXPAND. Notwithstanding anything to the contrary in
the Lease Form:
X. XXXXX OF EXPANSION OPTIONS. Landlord hereby grants to
Tenant options (the "Expansion options") to lease all of the remaining space
(the "Expansion Space") on the second floor of the Building on the terms and
conditions described in this Paragraph.
B. LANDLORD REPRESENTATIONS. Landlord represents that the
Expansion Space is subject only to the following interests, and the Expansion
options shall be subject only to such interests:
1. Xxxxxxx & Xxxxxxx currently leases 2,912 rentable
square feet (the "Xxxxxxx Space") with a lease expiration date of July 31,
1993.
2. Concrete Form Contractors currently leases 8,203
rentable square feet with a lease expiration date of July 31, 1993, but such
tenant has an option to extend its lease term for an additional two years
thereafter.
3. Lincoln National Life currently leases 3,418
rentable square feet with a lease expiration date of March 31, 1995, but such
tenant has an option to cancel such lease effective March 31, 1993.
4. Kensington Microware currently has a right of first
refusal to lease all the space on the second floor of the Building.
10
C. EXERCISE OF EXPANSION OPTIONS. Landlord shall comply with
all terms and conditions of Kensington Microware's right of first refusal. In
the event that Kensington Microware does not exercise such right of first
refusal with respect to any portion of the Expansion Space, Landlord shall
promptly thereafter give Tenant written notice of the availability of such
Expansion Space, which notice shall specify the date that such Expansion
Space will become available for Tenant's occupancy. Such notice shall be
given to Tenant at least six (6) months prior to the availability date of the
Concrete Form Construction space, at least five (5) months prior to the
availability date of the Lincoln National Life Space, and at least three (3)
months prior to the availability of the Xxxxxxx & Xxxxxxx space. Tenant must
exercise its Expansion Option with respect to such available Expansion Space
by giving Landlord notice thereof within eight (8) business days after
Tenant's receipt of Landlord's notice of availability thereof.
D. EFFECT OF EXERCISE. If Tenant exercises an Expansion Option
with respect to any Expansion Space, this Lease shall be amended as follows:
1. Such Expansion Space shall be measured in accordance
with applicable BOMA measurement standards and included within the Premises,
except that the Base Year for determining Operating Expenses and Project
Taxes with respect to such Expansion Space shall be the calendar year next
following inclusion of such Expansion Space within the Premises.
2. The Tenant's Share shall be increased to equal a
fraction (expressed as a percentage), the numerator of which equals the total
rentable square feet of the Premises (including such Expansion Space) and the
denominator of which equals the total rentable square feet of the Building.
3. Base monthly rent for any Expansion Space other than
the Xxxxxxx Space shall equal the Fair Market Rent of such Expansion Space as
determined by agreement of the parties or, if the parties cannot agree within
twenty (20) days of Tenant's exercise of the Expansion Option, by the
appraisal procedure described in Subparagraph 20(D) of this First Addendum
(taking into account the tenant improvement allowance provided in Paragraph
22.D.4). If such appraisal process has not resulted in a final determination
of Fair Market Rent by the commencement date of the term respecting
applicable Expansion Space, then the rate then payable with respect to the
remainder of the Premises, shall be used until such final determination, with
an appropriate adjustment for any overpayments or underpayments of rent or
other amounts if the appraisal results in a determination of Fair Market Rent
different from such amounts then payable with respect to the remainder of the
Premises. Base monthly rent for the Xxxxxxx Space shall be at the same base
monthly rental rate per square foot of rentable space payable by Tenant under
this Lease for the initial Premises at the time the Xxxxxxx Space is included
within the Premises.
4. Landlord shall provide to Tenant an allowance for
tenant improvements to such Expansion Space in an amount equal to Fifteen
Dollars ($15.00) per rentable square foot of the applicable Expansion Space.
11
5. Such amendment of the Lease shall be effective, as
to the applicable Expansion space, as of the earlier of (a) the date Tenant
takes possession of such Expansion Space, or (b) the occurrence of all of the
events described in clause (i) of subparagraph I(A) of this First Addendum
with respect to such Expansion Space and any tenant improvements to be made
by Landlord to such Expansion Space, or (c) the date by which such events
described in clause (i) would have occurred but for Tenant Delay, as defined
in EXHIBIT B. Promptly thereafter, Landlord and Tenant shall execute an
amendment to this Lease confirming the effective date of such expansion, the
base monthly rent for the entire Premises (including such Expansion Space),
the amount of Tenant's improvement allowance for the applicable Expansion
Space, and the Tenant's Share after such expansion.
23. TENANT'S RIGHT OF FIRST REFUSAL TO LEASE ADDITIONAL SPACE. If at
any time during the initial or any extended term of this Lease Landlord
determines to lease any additional space not encumbered by lease, options, or
rights of refusal at the Project ("Additional Space"), then Landlord shall
notify Tenant of the terms on which Landlord is willing to lease such
Additional Space. If Tenant, within eight (8) business days after receipt of
Landlord's written notice gives Landlord notice in writing of its agreement
to lease the Additional Space on the terms stated in Landlord's notice, then
Landlord shall lease to Tenant and Tenant shall lease from Landlord the
Additional Space on the terms stated in Landlord's notice. If Tenant does
not give Landlord written notice of its agreement to lease the Additional
Space on the terms contained in Landlord's notice within said eight (8)
business day period, then Landlord shall thereafter have the right to lease
the Additional Space to a third Party, provided that the material terms
agreed to with said third party are substantially the same as the terms
stated in Landlord's notice to Tenant. If Landlord does not lease the
Additional Space within six (6) months after the expiration of said eight (8)
business day period, any further transaction shall be deemed a new
determination by Landlord to lease such Additional Space and the provisions
of this Paragraph shall again be applicable.
24. CANCELLATION. Tenant shall have the option to cancel this Lease
prior to the expiration of the initial term by giving written notice
specifying its election to so cancel this lease to Landlord no later than the
first day of the thirty-fourth (34th) month of the lease term, in which event
such cancellation shall be effective as of the end of the forty-second (42nd)
month of the term. Tenant acknowledges that if Tenant so terminates the
lease term pursuant to this paragraph, and as payment for the privilege of
terminating the lease as herein provided, Tenant shall pay to Landlord (in
addition to all other payments for rental or other payments due during the
time the lease is in effect), the amount of One Hundred Forty one Thousand
Nine Hundred Sixty-Six and no/100 Dollars ($141,966.00). Such payment shall
be made by certified or cashiers check no later than the last day of the
forty-second (42nd) month of the term.
LANDLORD: TENANT:
THE XXXXXX AND XXX XXXX REVOCABLE ELECTRONICS FOR IMAGING,
TRUST a California corporation
By: By:
------------------------------- -------------------------------
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Printed Printed
Name: Name:
----------------------------- -----------------------------
Title: Title:
----------------------------- -----------------------------
Date: Date:
----------------------------- -----------------------------
13
EXHIBIT B
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF NOVEMBER 17, 0000
XXXXXXX
XXXXXX XXXXX INVESTMENT COMPANY, AS LANDLORD,
AND
ELECTRONICS FOR IMAGING, AS TENANT ("LEASE")
CONSTRUCTION RIDER
1. Landlord shall deliver the Premises to Tenant in an "as is"
condition and Tenant shall be solely responsible for making any alterations
or improvements to the Premises in accordance with the provisions of Section
6 -"Alterations" of the Lease.
2. Landlord shall use its best efforts to deliver possession of the
Premises to Tenant on or before the Scheduled Commencement Date specified in
Section 2 - "Term; Possession" of the Lease.
3. If Landlord is unable for any reason to deliver possession of the
Premises to Tenant on or before the Scheduled Commencement Date, neither
Landlord nor its representatives shall be liable to Tenant for any damage
resulting from the delay in delivering possession to Tenant and the Lease
shall remain in full force and effect unless and until it is terminated under
the express provisions of this Paragraph. In such event, the Commencement
Date shall be the actual date of delivery of possession of the Premises to
Tenant; provided, however, that if the Commencement Date has not occurred
within one hundred twenty (120) days after the Scheduled Commencement Date,
either party, by written notice to the other party given within ten (10) days
after the expiration of such one hundred twenty (120) day period, may
terminate the Lease without any liability to the other party.
Initials:
Landlord
Tenant
EXHIBIT C
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF NOVEMBER 17, 0000
XXXXXXX
XXXXXX XXXXX INVESTMENT COMPANY, AS LANDLORD,
AND
ELECTRONICS FOR IMAGING, AS TENANT ("LEASE")
RENT RIDER
1. The Base Rent for the forty-two (42) month term of the Lease shall
be $1.30 per rentable square foot per month and commence on December 16, 1992.
2. Base Rent and other sums payable to Landlord under the Lease shall
be paid at the following address:
CAMPUS DRIVE INVESTMENT COMPANY
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
ATTN: PROPERTY MANAGER
Initials:
Landlord
Tenant
16
EXHIBIT D
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF NOVEMBER 17, 0000
XXXXXXX
XXXXXX XXXXX INVESTMENT COMPANY, AS LANDLORD,
AND
ELECTRONICS FOR IMAGING, AS TENANT ("LEASE")
BUILDING RULES
The following Building Rules are additional provisions of the foregoing
Lease to which they are attached. The capitalized terms used herein have the
same meanings as these terms are given in the Lease.
1. USE OF COMMON AREAS. Tenant will not obstruct the sidewalks,
halls, passages, exits, entrances, elevators or stairways of the Building
("Common Areas"), and Tenant will not use the Common Areas for any purpose
other than ingress and egress to and from the Premises. The Common Areas,
except for the sidewalks, are not open to the general public and Landlord
reserves the right to control and prevent access to the Common areas of any
person whose presence, in Landlord's opinion, would be prejudicial to the
safety, reputation and interests of the Building and its tenants.
2. NO ACCESS TO ROOF. Tenant has no right of access to the roof of
the Building and will not install, repair or replace any antenna, aerial,
aerial wires, fan, air-conditioner or other device on the roof of the
Building, without the prior written consent of Landlord. Any such device
installed without such written consent is subject to removal at Tenant's
expense without notice at any time. In any event Tenant will be liable for
any damages or repairs incurred or required as a result of its installation,
use, repair, maintenance or removal of such devices on the
roof and agrees to indemnify and hold harmless Landlord from any liability,
loss, damage, cost or expense, including reasonable attorneys/ fees, arising
from any activities of Tenant or of Tenant's Representatives on the roof of
the Building.
3. SIGNAGE. No sign, placard, picture, name, advertisement or notice
visible from the exterior of the Premises will be inscribed, painted, affixed
or otherwise displayed by Tenant on or in any part of the Building without
the prior written consent of Landlord. Landlord reserves the right to adopt
and furnish Tenant with general guidelines relating to signs in or on the
Building. All approved signage will be inscribed, painted or affixed at
Tenant's expense by a person approved by Landlord, which approval will not be
unreasonably withheld.
4. PROHIBITED USES. The Premises will not be used for manufacturing,
for the storage of merchandise held for sale to the general public, for
lodging or for the sale of goods to the general public. Tenant will not
permit any food preparation on the Premises except that Tenant may use
Underwriters' Laboratory approved equipment for brewing coffee, tea, hot
chocolate and similar beverages so long as such use is in accordance with all
applicable federal, state and city laws, codes, ordinances, rules and
regulations.
5. JANITORIAL SERVICES. Tenant will not employ any person for the
purpose of cleaning the Premises or permit any person to enter the Building
for such purpose other than the Landlord's janitorial service, except with
Landlord's prior written consent. Tenant will not necessitate, and will be
liable for the cost of, any undue amount of janitorial labor by reason of
Tenant's carelessness in or indifference to the preservation of good order
and cleanliness in the Premises. Janitorial service will not be furnished to
areas in the Premises on nights when such
2
areas are occupied after 9:30 p.m., unless such service is extended by
written agreement to a later hour in specifically designated areas of the
Premises.
6. KEYS AND LOCKS. Landlord will furnish Tenant, free of charge, two
keys to each door or lock in the Premises. Landlord may make a reasonable
charge for any additional or replacement keys. Tenant will not duplicate any
keys, alter any locks or install any new or additional lock or bolt on any
door of its Premises or on any other part of the Building without the prior
written consent of Landlord and, in any event, Tenant will provide Landlord
with a key for any such lock. On the termination of the Lease, tenant will
deliver to Landlord all keys to any locks or doors in the Building which have
been obtained by Tenant.
7. FREIGHT. Upon not less than twenty-four hours prior notice to
Landlord, which notice may be verbal, an elevator will be made available for
Tenant's use for transportation of freight, subject to such scheduling as
Landlord in its discretion deems appropriate. Tenant shall not transport
freight in loads exceeding the weight limitations of such elevator. Landlord
reserves the right to prescribe the weight, size and position of all
equipment, materials, furniture or other property brought into the Building,
and no property will be received in the Building or carried up or down the
freight elevator or stairs except during such hours and along such routes and
by such persons as may be designated by Landlord. Landlord reserves the
right to require that heavy objects will stand on wood strips of such length
and thickness as is necessary to properly distribute the weight. Landlord
will not be responsible for loss of or damage to any such property from any
cause, and Tenant will be liable for all damage or injuries caused by moving
or maintaining such property.
3
8. NUISANCES AND DANGEROUS SUBSTANCES. Tenant will not conduct
itself or permit its agents, employees, contractors or invitees to conduct
themselves, in the Premises or anywhere on or in the Property in a manner
which is offensive or unduly annoying to any other Tenant or Landlord's
property managers. Tenant will not install or operate any phonograph, radio
receiver, musical instrument, or television or other similar device in any
part of the Common Areas and shall not operate any such device installed in
the Premises in such manner as to disturb or annoy other tenants of the
Building. Tenant will not use or keep in the Premises or the Property any
kerosene, gasoline or other combustible fluid or material other than limited
quantities thereof reasonably necessary for the maintenance of office
equipment, or, without Landlord's prior written approval, use any method of
heating or air conditioning other than that supplied by Landlord. Tenant
will not use or keep any foul or noxious gas or substance in the Premises or
permit or suffer 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, or interfere in any way with other tenants or
those having business therein. Tenant will not bring or keep any animals in
or about the Premises or the Property.
9. BUILDING NAME AND ADDRESS. Without Landlord's prior written
consent, Tenant will not use the name of the Building in connection with or
in promoting or advertising Tenant's business except as Tenant's address.
10. BUILDING DIRECTORY. A directory for the Building will be provided
for the display of the name and location of tenants. Landlord reserves the
right to approve any additional names Tenant desires to place in the
directory and, if so approved, Landlord may assess a reasonable charge for
adding such additional names.
4
11. WINDOW COVERINGS. No curtains, draperies, blinds, shutters,
shades, awnings, screens or other coverings, window ventilators, hangings,
decorations or similar equipment shall be attached to, hung or placed in, or
used in or with any window of the Building without the prior written consent
of Landlord, and Landlord shall have the right to control all lighting within
the Premises that may be visible from the exterior of the Building.
12. FLOOR COVERINGS. Tenant will not lay or otherwise affix linoleum,
tile, carpet or any other floor covering to the floor of the Premises in any
manner except as approved in writing by Landlord. Tenant will be liable for
the cost of repair of any damage resulting from the violation of this rule or
the removal of any floor covering by Tenant or its contractors, employees or
invitees.
13. ELECTRICAL INSTALLATIONS. Landlord will direct Tenant's
electricians as to where and how telephone, telegraph and electrical wires
are to be installed. No boring or cutting for wires will be allowed without
the prior written consent of Landlord. The location of burglar alarms, smoke
detectors, telephones, call boxes and other office equipment affixed to the
Premises shall be subject to the written approval of Landlord.
14. OFFICE CLOSING PROCEDURES. Tenant will see that the doors of the
Premises are closed and locked and that all water faucets, water apparatus
and utilities are shut off before Tenant or its employees leave the Premises,
so as to prevent waste or damage. Tenant will be liable for all damage or
injuries sustained by other tenants or occupants of the Building or Landlord
resulting from Tenant's carelessness in this regard or violation of this
rule. Tenant will keep the doors to the Building corridors closed at all
times except for ingress and egress.
5
15. PLUMBING FACILITIES. 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 disposed of therein. Tenant will be liable for any
breakage, stoppage or damage resulting from the violation of this rule by the
Tenant, its employees or invitees.
16. USE OF HAND TRUCKS. Tenant will not use or permit to be used in
the Premises or in the Common Areas any hand trucks, carts or dollies except
those equipped with rubber tires and side guards or such other equipment as
Landlord may approve.
17. REFUSE. Tenant will store all its trash and garbage within the
Premises. No material will be placed in the trash boxes or receptacles if
such material may not be disposed of in the ordinary and customary manner of
removing and disposing of trash and garbage in the city in which the Building
is located without being in violation of any law or ordinance governing such
disposal. All trash and garbage removal will be only through such Common
Areas provided for such purposes and at such times as Landlord may designate.
18. SOLICITING. Canvassing, peddling, soliciting and distribution of
handbills or any other written materials in the Building are prohibited, and
Tenant will cooperate to prevent the same.
19. PARKING. Tenant will use, and will cause its agents, employees,
contractors and invitees to use, the parking spaces to which it is entitled
under the Lease in a manner consistent with Landlord's directional signs and
markings in the Parking Facility. Specifically, but without limitation, Tenant
will not park, or permit its agents, employees, contractors or invitees to park,
6
in a manner that impedes access to and from the Building or the Parking
Facility or that violates space reservations for handicapped drivers
registered as such with the California Department of Motor Vehicles. Landlord
may use such reasonable means as may be necessary to enforce the directional
signs and markings in the Parking Facility, including but not limited to
towing services, and Landlord will not be liable for any damage to vehicles
towed as a result of non-compliance with such parking regulations.
20. FIRE, SECURITY AND SAFETY REGULATIONS. Tenant will comply with
all safety, security, fire protection and evacuation measures and procedures
established by Landlord or any governmental agency.
21. RESPONSIBILITY FOR THEFT. Tenant assumes any and all
responsibility for protecting the Premises from theft, robbery and pilferage,
which includes keeping doors locked and other means of entry to the Premises
closed.
22. SALES AND AUCTIONS. Tenant will not display or sell merchandise
outside the exterior walls and doorways of the Premises nor use such areas
for storage. Tenant will not install any exterior lighting, amplifiers or
similar devices or use in or about the Premises an advertising medium which
may be heard or seen outside the Premises, including flashing lights,
searchlights, loudspeakers, phonographs or radio broadcasts. Tenant will not
conduct or permit to be conducted any sale by auction in, upon or from the
Premises or elsewhere in the Property, whether said auction be voluntary,
involuntary, pursuant to any assignment for the payment of creditors or
pursuant to any bankruptcy or other insolvency proceeding.
7
23. ENFORCEMENT. Landlord may waive any one or more of these Building
Rules for the benefit of any particular tenant or tenants, but no such waiver by
Landlord will be construed as a waiver of such Building Rules in favor of any
other tenant or tenants nor prevent Landlord from thereafter enforcing these
Building Rules against any or all of the tenants of the Building.
24. EFFECT ON LEASE. These Building Rules 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 the Lease. Violation of these Building
Rules constitutes a failure to fully perform the provisions of the Lease, as
referred to in Section 16.1 - "Events of Default".
25. ADDITIONAL AND AMENDED RULES. Landlord reserves the right to
rescind or amend these Building Rules and/or adopt any other and reasonable
rules and regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Building and for the preservation of good
order therein.
Initials:
Landlord
Tenant
8
EXHIBIT E
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF NOVEMBER 17, 0000
XXXXXXX
XXXXXX XXXXX INVESTMENT COMPANY, AS LANDLORD,
AND
ELECTRONICS FOR IMAGING, AS TENANT ("LEASE")
ADDITIONAL PROVISIONS RIDER
1. PARKING.
(a) Landlord shall provide Tenant, on an unassigned, non-exclusive
and unlabelled basis, five (5) parking spaces in the Parking Facility; provided,
however, that ten percent (10%) of such spaces may be designated by Landlord as
Building visitors' parking. If Tenant leases additional office space pursuant
to this Lease, Landlord shall provide Tenant, also on an unassigned,
non-exclusive and unlabelled basis, one (1) additional parking space in the
Parking Facility for each Two Hundred and Fifty (250) rentable square feet of
additional office space leased to Tenant. Ten percent (10%) of such additional
parking spaces may also be designated by Landlord as Building visitors' parking.
(b) The parking spaces to be made available to Tenant hereunder
may contain a reasonable mix of spaces for compact cars. Landlord shall take
reasonable actions to ensure the availability of the parking spaces leased by
Tenant, but Landlord does not guarantee the availability of those spaces at all
times against the actions of other tenants of the Building and users of the
Parking Facility. Access to the monthly parking spaces to be made available to
Tenant shall, at Landlord's option, be by card, pass, bumper sticker, decal or
other appropriate identification issued by Landlord.
(c) In the event the Parking Facility is subject of a
"Condemnation," as defined in Section 14.1 - "Definitions" of the Lease, or is
damaged or destroyed, and the Lease is not terminated, and if in such event the
available number of parking spaces in the Parking Facility is permanently
reduced, then Tenant's rights to use parking spaces hereunder will thereafter be
reduced in proportion to the reduction of the total number of parking spaces in
the Parking Facility.
(d) ASSIGNMENT AND SUBLETTING. Notwithstanding the provisions
of Section 15 - "Assignment and Subletting" hereof, Tenant shall not assign
its rights to the parking spaces or any interest therein, or sublease or
otherwise allow the use of all or any part of the parking spaces to or by any
other person, except with Landlord's prior written consent, which may be
granted or withheld by Landlord in its sole discretion. In the event of any
separate assignment or sublease of parking space rights that is approved by
Landlord, Landlord shall be entitled to receive, as Additional Rent
hereunder, one hundred percent (100%) of any profit received by Tenant in
connection with such assignment or sublease.
(e) CONDEMNATION, DAMAGE OR DESTRUCTION. In the event the Parking
Facility is the subject of a Condemnation, or is damaged or destroyed, and
this Lease is not terminated, and if in such event the available number of
parking spaces in the Parking Facility is permanently reduced, then Tenant's
rights to use parking spaces hereunder may, at the election of Landlord,
thereafter be reduced in proportion to the reduction of the total number of
parking spaces in the Parking Facility, and the Monthly Parking Rental
payable hereunder shall be reduced proportionately. In such event, Landlord
reserves the right to reduce the number of parking
2
spaces to which Tenant is entitled or to relocate some or all of the parking
spaces to which Tenant is entitled to other areas in the Parking Facility.
2. RIGHT TO TERMINATE.
Tenant shall have the right to terminate this Lease anytime after
the end of the first twelve (12) months of this Lease upon satisfaction of the
following conditions:
(i) To exercise this right, tenant shall deliver to Landlord by no
later than six (6) months prior to the termination date, written notice (the
"Termination Notice") stating in substance that Tenant is exercising its right
to terminate this Lease pursuant to this Section 2.
(ii) Tenant shall not be in default of any term or provision of
this Lease on the date it so delivers the Termination Notice or at any time
thereafter during the remaining term hereof.
If Tenant is in default, as stated in (ii) above, Landlord, at its sole option,
may cancel Tenant's right to terminate this Lease under this Section 2, in which
event this Section 2 and any Termination Notice (as hereinafter defined) shall
be cancelled and of no further force or effect.
Initials:
Landlord
Tenant
SECOND ADDENDUM TO LEASE
This Second Addendum to Lease ("Second Addendum") is dated for references
purposes April 1, 1993, and is made between the Xxxxxx Xxxx and Xxx Xxxx
Revocable Trust ("Landlord") and Electronics for Imaging ("Tenant") to be a
part of that certain Agreement of Lease ("Lease") dated July 30, 1992.
Landlord and Tenant agree that the Lease and First Addendum to Lease are
modified and supplemented by this Second Addendum as follows:
1. PREMISES. The Premises shall be increased by 2,536 rentable square feet
(2,255 useable). ("Phase II Expansion") as shown on Exhibit A to the
Lease. The total Premises shall be increased from 32,863 rentable square
feet (31,254 useable) to 35,399 rentable square feet (33,509 useable). The
total square footage on the second floor of the building shall be 10,399
rentable square feet (9,245 useable).
2. TERM. The effective date of this expansion shall be April 1, 1993.
3. RENT. Tenant agrees to pay Landlord $1.44 per rentable square foot per
month for the Phase II Expansion ($3,651.84). The base monthly rent
payable for the entire Premises (including the Phase II Expansion) shall be
Fifty Thousand Nine Hundred Seventy Four and 00/100 Dollars ($50,974.00).
20. Rental Adjustment.
(b) Tenant's Share shall be Forty Six and 64/100 percent (46.64%).
Landlord Tenant
Xxxxxx and Xxx Xxxx Revocable Trust Electronics For Imaging
By: By:
---------------------------- ---------------------------
By:
----------------------------
Date: Date:
--------------------------- -------------------------
THIRD ADDENDUM TO LEASE
This Third Addendum to Lease ("Third Addendum") is dated for references purposes
May 20, 1993, and is made between the Xxxxxx Xxxx and Xxx Xxxx Revocable Trust
("Landlord") and Electronics for Imaging ("Tenant") to be a part of that certain
Agreement of Lease dated July 30, 1992. Landlord and Tenant agree that the
Agreement of Lease and the First and Second Addendums to the Lease ("Lease") are
modified and supplemented by this Third Addendum as follows:
1. PREMISES. The Premises shall be increased by 6,145 rentable square feet
(5,487 useable) ("Added Premises"). (This is essentially the addition of
the two end sections of the space formerly occupied by Concrete Form
Constructors as shown on Exhibit A.) The total Premises shall be
increased from 35,399 rentable square feet (33,509 useable) to 41,544
rentable square feet (38,996 useable) as shown on Exhibit A. The total
square footage on the second floor of the building shall be 16,544
rentable square feet (14,737 useable).
2. TERM. The term of this Lease shall be extended from 50 months to 56
months, ending on June 30, 1997. The term for the Added Premises shall be
48 months commencing on July 1, 1993 and ending on June 30, 1997.
3. RENT. Tenant agrees to pay Landlord $1.65 per rentable square foot per
month for the Added Premises referred to in this Addendum ($10,139.25 per
month). (The base rent for all other Premises remains $1.44 per rentable
square foot.) The monthly base rent payable for the entire Premises
(including the Added Premises) shall be Sixty-One Thousand One Hundred
Thirteen and 25/100 Dollars ($61,113.25).
6. REPAIRS AND ALTERATIONS. Notwithstanding anything to the contrary in the
Lease or First Addendum, after proper installations by Landlord's
contractor, Tenant shall be responsible for the operation, maintenance
and repair of all equipment in the kitchen/dining facility other than
standard building plumbing, electricity and HVAC.
20. RENTAL ADJUSTMENT.
(a) The Base Year for the Added Premises shall be 1994.
(b) Tenant's Share (with the Added Premises) shall be Fifty-five and
80/100 percent (55.80%).
39. BROKERS. Landlord and Tenant each warrants that it has bad no dealings
with any real estate brokers or agents in connection with the negotiation
of the lease of the Added Premises.
The First Addendum to Lease dated for reference purposes as of July 30, 1992,
made by and between Xxxxxx and Xxx Xxxx Revocable Trust ("Landlord") and
Electronics for Imaging ("Tenant") shall be modified and Amended as follows:
1. COMMENCEMENT DATE. This entire paragraph shall not apply to the Added
Premises.
The term for the Added Premises and the payment of rent shall commence on
July 1, 1993 whether or not Landlord has substantially completed the
tenant improvements described in Exhibit B to this Third Addendum and
whether or not Tenant is able to occupy or take possession of all or any
part of the Added Premises by that date.
22. OPTIONS TO EXPAND.
D. EFFECT OF EXERCISE. All sections except Subsection 5 (see
Commencement Date above) of this paragraph shall apply to the Added
Premises including but not limited to the tenant improvement
allowance. (See Exhibit B attached hereto).
24. CANCELLATIONS. This paragraph shall be deleted.
25. MUST-TAKE OPTION. Tenant shall have a must-take option on 1,905 rentable
square feet (1,701 useable) on the second floor shown on Exhibit A. The
term on this must-take space shall commence no later than July 1,
1994. Promptly thereafter Landlord shall execute an amendment to this
Lease confirming the effective date of such expansion, the 6ase monthly
rent for the entire premises including the option space, the amount of
the tenant improvement allowance and the Tenant's share after the
must-take space is added. Landlord shall be permitted to lease this space
through July 1, 1994, however, Tenant may exercise its option in writing
prior to July 1, 1994 if the space is unoccupied.
Landlord Tenant
Xxxxxx and Xxx Xxxx Revocable Trust Electronics For Imaging
By: By:
-------------------------------- --------------------------
By:
--------------------------------
Date: Date:
-------------------------------- --------------------------
EXHIBIT A
[CHART]
EXHIBIT B TO THE THIRD ADDENDUM
TENANT IMPROVEMENTS
1. Landlord shall, construct the improvements to the Added Premises
described in, and in accordance with, those certain plans and specifications for
the Added Premises (the "Final Plans") dated 1993, by Fee, Xxxxxx, Xxxxx.
Subject to any Tenant Delays, as hereinafter defined, Landlord estimates the
construction period to substantially complete the tenant improvements to be 60
days from the date of issuance of the permit for the tenant improvements (said
completion date is hereinafter referred to as the "estimated completion date"),
and Landlord win use its best efforts and due diligence to obtain such permit at
the earliest date reasonably possible and complete the tenant improvements by
the estimated completion date. The Commencement Date for the Added Premises
shall be July 1, 1993, regardless of whether the space is substantially
completed and regardless of whether Tenant is actually able to occupy or take
possession of the Premises by that date. However, for each day of delay in the
construction fully in the control of and caused by Landlord, Tenant shall be
provided one day free rent. The free rent shall be credited to Tenant in the
first full month after occupancy by Tenant. Landlord shall provide Tenant with
access to the premises for the purpose of installing modular office cubicles,
computer and telephone wires, other cabling and kitchen equipment, no later than
three weeks prior to the estimated completion date. Landlord shall have no
responsibility for coordinating or installing such cubicles, wires, cables or
equipment. Tenant shall be solely responsible for the cost of acquisition and
installation of its telephone and computer equipment, and all of Tenant's
furnishings, personal property and kitchen equipment.
2. Landlord shall provide a $15.00 per rentable square foot allowance
for the tenant improvements. In addition Landlord shall provide an allowance of
$1.00 per rentable square foot for architectural fees. All costs exceeding these
allowances shall be paid by Tenant within ten (10) days of receipt of invoice
from Landlord. Landlord shall provide Tenant with a construction cost breakdown
for the improvements shown in the Final Plans and Tenant shall provide Landlord
with written authorization to proceed based upon that budget.
3. Tenant may by written instructions or drawings issued to Landlord
(a "Change Order Request") make changes in the Final Plans, including with
limitation, requiring additional work, directing the omission of work previously
ordered, or changing the quantity or type of any materials, equipment or
services. Promptly upon receipt of a Change Order Request Landlord will provide
Tenant with a statement in detail setting forth the cost of said change
(including a breakdown of costs attributable to labor and materials,
construction equipment exclusively necessary for the change, and preparation or
amendment to shop drawings resulting from the change) and any time delays
anticipated to result from the change, prior to Tenant's final authorization
thereof. Tenant will have two (2) business days after receipt of such statement
in which to confirm the Change Order Request and authorize in writing the work
to be performed pursuant thereto, or to withdraw such request. Change Orders
will be signed by Landlord and Tenant in advance of any Change Order work.
Landlord will not unreasonably withhold its consent to any such Change Order
provided the changes do not, in Landlord's reasonable opinion, adversely affect
the Building's structure, systems, equipment or appearance. No
changes to the Final Plans will be made except pursuant to a written Change
Order signed by Tenant. The cost of all Change Orders which adds cost over
the tenant improvements shown on the Final Plans shall be paid by Tenant
after substantial completion of such Change Order work and within ten (10)
days of its receipt of an invoice from Landlord.
4. Landlord warrants that all tenant improvements to be constructed by
Landlord as initial tenant improvements shall be constructed in a good and
workmanlike manner using materials of good quality in accordance with the Final
Plans and with an applicable laws. Within thirty (30) days after occupancy,
Tenant shall make an inspection of the premises and prepare a punchlist of items
needing additional work by Landlord. Landlord's contractor shall complete all
punchlist items reasonably identified by Tenant within thirty (30) days after
the inspection or as soon as practicable thereafter.
5. The carpet from the existing space shall be reused in all areas
except the kitchen area. There shall be adequate HVAC provided so as to prevent
odors travelling into the rest of the building from the food service,
6. Upon termination of the Lease, all of the tenant improvements shall
remain in the premises unless Landlord shall consent in writing to the removal
thereof by Tenant.
7. Tenant acknowledges that Landlord will make no independent review
of the Final Plans and that Landlord does not warrant either expressly or
impliedly, the adequacy of the Final Plans, the tenant improvements or Tenant's
equipment for Tenant's intended purpose, other than a Warranty that the tenant
improvements have been constructed according to the Final Plans in a good and
workmanlike manner, and in accordance with applicable laws
Landlord Initials
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Tenant Initials
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2
FOURTH ADDENDUM TO LEASE
This Fourth Addendum to Lease ("Fourth Addendum") is dated for references
purposes May 25, 1993, and is made between the Xxxxxx Xxxx and Xxx Xxxx
Revocable Trust ("Landlord") and Electronics for Imaging ("Tenant") to be a part
of that certain Agreement of Lease dated July 30, 1992. Landlord and Tenant
agree that the Agreement of Lease and the First, Second and Third Addendums to
the Lease ("Lease") are modified and supplemented by this Fourth Addendum as
follows:
1. PREMISES. The Premises shall be increased by 2,912 rentable square feet
(2,600 useable) ("Added Premises"). (This is essentially the addition of
the space formerly occupied by Xxxxxxx and Xxxxxxx as shown on Exhibit A
attached hereto). The total Premises shall be increased from 41,544
rentable square feet (36,109 useable) to 44,456 rentable square feet
(41,596 useable). The total square footage on the second floor of the
building shall be 19,456 rentable square feet (17,337 useable).
2. TERM. The term for the Added Premises referred to in this Addendum shall
be 47 months commencing on August 1, 1993 and ending on June 30, 1997.
3. RENT. Tenant agrees to pay Landlord $1.44 per rentable square foot per
month for the Added Premises referred to in this Addendum ($4,193.28 per
month). The base monthly rent payable for the entire Premises (including
the Added Premises) shall be Sixty-Five Thousand Three Hundred and Six
and 53/100 Dollars ($65,306.53).
20. RENTAL ADJUSTMENT.
(a) The base year for the Added Premises shall be 1994.
(b) Tenant's Share (with the Added Premises) shall be Fifty-Nine and
70/100 percent (59.70%).
39. BROKERS. Landlord and Tenant each warrants that it has had no dealings
with any real estate brokers or agents in connection with the negotiation
of the lease of the Added Premises.
The First Addendum to Lease dated for reference purposes as of July 30, 1992,
made by and between Xxxxxx and Xxx Xxxx Revocable Trust ("Landlord") and
Electronics for Imaging ("Tenant") shall be modified and Amended as follows:
1. COMMENCEMENT DATE. This entire paragraph shall not apply to the Added
Premises.
The term for the Added Premises and the payment of rent shall commence on
August 1, 1993 whether or not Landlord has substantially completed the
tenant improvements described in Exhibit B to this Fourth Addendum and
whether or not Tenant is able to occupy or take possession of all or any
part of the Added Premises by that date.
22. OPTIONS TO EXPAND.
D. EFFECT OF EXERCISE. All sections except Subsection 5 (see
Commencement Date above) of this paragraph shall apply to the Added
Premises including but not limited to the tenant improvement
allowance. (See Exhibit B attached hereto).
Landlord Tenant
Xxxxxx and Xxx Xxxx Revocable Trust Electronics For Imaging
By: By:
-------------------------------- ------------------------
By:
--------------------------------
Date: Date:
------------------------------ ------------------------
EXHIBIT A TO FOURTH ADDENDUM
[CHART]
EXHIBIT B TO THE FOURTH ADDENDUM
TENANT IMPROVEMENTS
1. Landlord shall, construct the improvements to the Added Premises
described in, and in accordance with, those certain plans and specifications
for the Added Premises (the "Final Plans") dated ____________, 1993, by Fee,
Xxxxxx, Xxxxx. Subject to any Tenant Delays, as hereinafter defined,
Landlord estimates the construction period to substantially complete the
tenant improvements to be 60 days from the date of issuance of the permit for
the tenant improvements (said completion date is hereinafter referred to as
the "estimated completion date"), and Landlord will use its best efforts and
due diligence to obtain such permit at the earliest date reasonably possible
and complete the tenant improvements by the estimated completion date. The
Commencement Date for the Added Premises shall be August 1, 1993, regardless
of whether the space is substantially completed and regardless of whether
Tenant is actually able to occupy or take possession of the Premises by that
date. However, for each day of delay in the construction fully in the
control of and caused by Landlord, Tenant shall be provided one day free
rent. The free rent shall be credited to Tenant in the first full month
after occupancy by Tenant. Landlord shall provide Tenant with access to the
premises for the purpose of installing modular office cubicles, computer and
telephone wires, other cabling and kitchen equipment, no later than three
weeks prior to the estimated completion date. Landlord shall have no
responsibility for coordinating or installing such cubicles, wires, cables or
equipment. Tenant shall be solely responsible for the cost of acquisition
and installation of its telephone and computer equipment, and all of Tenant's
furnishings, personal property and kitchen equipment.
2. Landlord shall provide a $15.00 per rentable square foot
allowance for the tenant improvements. In addition Landlord shall provide an
allowance of $1.00 per rentable square foot for architectural fees. All
costs exceeding these allowances shall be paid by Tenant within ten (10) days
of receipt of invoice from Landlord. Landlord shall provide Tenant with a
construction cost breakdown for the improvements shown in the Final Plans and
Tenant shall provide Landlord with written authorization to proceed based
upon that budget.
3. Tenant may by written instructions or drawings issued to Landlord
(a "Change Order Request") make changes in the Final Plans, including with
limitation, requiring additional work, directing the omission of work
previously ordered, or changing the quantity or type of any materials,
equipment or services. Promptly upon receipt of a Change Order Request
Landlord will provide Tenant with a statement in detail setting forth the
cost of said change (including a breakdown of costs attributable to labor and
materials, construction equipment exclusively necessary for the change, and
preparation or amendment to shop drawings resulting from the change) and any
time delays anticipated to result from the change, prior to Tenant's final
authorization thereof. Tenant will have two (2) business days after receipt
of such statement in which to confirm the Change Order Request and authorize
in writing the work to be performed pursuant thereto, or to withdraw such
request. Change Orders will be signed by Landlord and Tenant in advance of
any Change Order work. Landlord will not unreasonably withhold its consent to
any such Change Order provided the changes do not, in Landlord's reasonable
opinion, adversely affect the Building's structure, systems, equipment or
appearance. No
changes to the Final Plans will be made except pursuant to a written Change
Order signed by Tenant. The cost of all Change Orders which adds cost over
the tenant improvements shown on the Final Plans shall be paid by Tenant
after substantial completion of such Change Order work and within ten (10)
days of its receipt of an invoice from Landlord.
4. Landlord warrants that all tenant improvements to be constructed by
Landlord as initial tenant improvements shall be constructed in a good and
workmanlike manner using materials of good quality in accordance with the Final
Plans and with an applicable laws. Within thirty (30) days after occupancy,
Tenant shall make an inspection of the premises and prepare a punchlist of items
needing additional work by Landlord. Landlord's contractor shall complete all
punchlist items reasonably identified by Tenant within thirty (30) days after
the inspection or as soon as practicable thereafter.
5. Upon termination of the Lease, all of the tenant improvements shall
remain in the premises unless Landlord shall consent in writing to the removal
thereof by Tenant.
6. Tenant acknowledges that Landlord will make no independent review
of the Final Plans and that Landlord does not warrant either expressly or
impliedly, the adequacy of the Final Plans, the tenant improvements or
Tenant's equipment for Tenant's intended purpose, other than a Warranty that
the tenant improvements have been constructed according to the Final Plans in
a good and workmanlike manner, and in accordance with applicable laws.
Landlord Initials
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Tenant Initials
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FIFTH ADDENDUM TO LEASE
This Fifth Addendum to Lease ("Fifth Addendum") is dated for references
purposes July 12, 1994, and is made between the Xxxxxx Xxxx and Xxx Xxxx
Revocable Trust ("Landlord") and Electronics for Imaging ("Tenant") to be a
part of that certain Agreement of Lease dated July 30, 1992. Landlord and
Tenant agree that this Lease is modified and supplemented by this Fifth
Addendum.
1. PREMISES. The premises shall be increased by 1,905 rentable square
feet (1,701 useable square feet) ("Must-take Premises"). The total
Premises shall be increased from 44,456 rentable square feet (36,109
useable square feet) to 46,361 rentable square feet (43,279 useable
square feet).
2. TERM. The term for the Must-take Premises shall be for 36 months
commencing on July 1, 1994 and ending on June 30, 1997.
3. RENT. Tenant agrees to pay Landlord $1.65 per rentable square foot for
the Must-take Premises ($3,143.25). The total rent payable for the
entire Premises (including the Must-take Premises) shall be $68,449.78
per month.
20. RENTAL ADJUSTMENT.
(a) The base year for the Must-take Premises shall be 1994.
(3) Tenant's Share shall increase from 59.7% to 62.3%.
The First Addendum to Lease dated for reference purposes as of July 30, 1992,
made by and between Xxxxxx and Xxx Xxxx Revocable Trust ("Landlord") and
Electronics for Imaging ("Tenant") shall be modified and Amended as follows:
1. COMMENCEMENT DATE. This entire paragraph shall not apply to the Added
Premises.
22. OPTIONS TO EXPAND.
D. EFFECT OF EXERCISE.
Subsection 5 to Paragraph 22(D) shall not apply to the Must-take
Premises. (See Paragraph 2 above.)
24. CANCELLATIONS. This paragraph shall be deleted as it applies to the
Must-take Premises.
Landlord Tenant
------------------------------ ------------------------------
Xxxxxx Xxxx
2
SIXTH ADDENDUM TO LEASE
This Sixth Addendum to Lease ("Sixth Addendum") is dated for references
purposes January 19, 1995, and is made between the Xxxxxx Xxxx and Xxx Xxxx
Revocable Trust ("Landlord") and Electronics for Imaging ("Tenant") to be a
part of that certain Agreement of Lease dated July 30, 1992, and the First
through Fifth Addendums. Landlord and Tenant agree that this Lease is
modified and supplemented by this Sixth Addendum.
1. PREMISE. The premises shall be increased by 3,418 rentable square feet
(3,101 useable square feet) ("Additional Premises"). The total
Premises shall be increased from 46,361 rentable square feet (43,297
useable square feet) to 49,779 rentable square feet (46,398 useable
square feet).
2. TERM. The term for the Additional Premises shall be for 27 months
commencing on April 1, 1995 and ending on June 30, 1997. The
Commencement Date will be adjusted to the date the current tenant
vacates the space.
3. RENT. Tenant agrees to pay Landlord $1.75 per rentable square foot for
the Additional Premises ($5,981.50). The total base rent payable for
the entire Premises (including the Additional Premises) shall be
$74,431.28 per month.
20. RENTAL ADJUSTMENT.
(a) The base year for the Additional Premises shall be 1995.
(3) Tenant's Share shall increase from 62.3% to 65.6%.
The First Addendum to Lease dated for reference purposes as of July 30, 1992,
made by and between Xxxxxx and Xxx Xxxx Revocable Trust ("Landlord") and
Electronics for Imaging ("Tenant") shall be modified and Amended as follows:
1. COMMENCEMENT DATE. This entire paragraph shall not apply to the
Additional Premises.
22. OPTIONS TO EXPAND.
D. Effect of Exercise.
4. Landlord shall provide to Tenant an allowance for tenant
improvements to such Additional Premises in an amount equal to
$10.00 per useable square foot including architectural
services which shall not exceed $1.00 per useable square foot.
This allowance must be expended within the first six months of
possession and can only be used on these particular premises.
Subsection 5 to Paragraph 22(D) shall not apply to the Additional
Premises. (See Paragraph 2 above.)
24. CANCELLATIONS. This paragraph shall be deleted as it applies to the
Additional Premises.
LANDLORD TENANT
Xxxxxx and Xxx Xxxx Electronics For Imaging
Revocable Trust
------------------------------- -------------------------------
Xxxxxx Xxxx
Date: _________________________ Date: _________________________
2
SEVENTH ADDENDUM TO LEASE
This Seventh Addendum to Lease ("Seventh Addendum") is dated for reference
purposes December 4, 1906, and in made between the Xxxxxx Xxxx and Xxx Xxxx
Revocable Trust ("Landlord") and Electronics for Imaging ("Tenant") to be a
part of that certain Agreement of Lease dated July 30, 1992, and the First
through Sixth Addendum. Landlord and Tenant agree that this Lease is
modified and supplemented by this Seventh Addendum.
Landlord and Tenant are parties to the Lease pursuant to which Landlord
leased to Tenant and Tenant leased from Landlord office space. Tenant wishes
to exercise is first option to extend the Lease as set forth in the First
Addendum to Lease dated July 30,1992. The Lease is hereby amended as
follows:
1. PREMISES. The existing premises of 49,779 rentable sq. ft. and 46,398
useable sq. ft. located on the first and second floors of the building
located at 0000 Xxxxxx Xxxxx xx Xxx Xxxxx, Xxxxxxxxxx.
2. TERM. The term of the option period shall be three years commencing
July 1, 1997 and ending on June 30, 2000.
3. RENT. Tenant agrees to pay Landlord $2.60 per rentable square foot per
month for the Premises. The total Base Rent payable for the entire
Premises is $129,425.40 per month.
4. OVER-STANDARD ELECTRICAL. Landlord provides Tenant an electrical
service allowance of $.155 per rentable sq. ft. which is included in
the Base Rent.
Landlord and Tenant recognize that Tenant's electrical service shall
cost in excess of the $.155 allowance due to Tenant's heavy electrical
and air conditioning requirements. Therefore, Tenant agrees to pay for
all electrical charges over and above the monthly allowance provided
above, loss any over-standard charges to other tenants in the building
(any usage over the $.155 allowance provided to each Tenant).
Landlord shall charge Tenant $9,000.00 per month for the over-standard
electrical useage as a projected expense. This amount shall be paid
along with the monthly rent. At the end of the year, Landlord shall
prepare a PG&E invoice analysis showing the actual cost of
over-standard usage by Tenant. Landlord shall credit Tenant for any
costs in excess of the total projected sum paid by Tenant over the
year. If the amount of Tenant's credit is less than the actual cost,
then Tenant shall reimburse Landlord within thirty (30) of receipt of
an invoice. The monthly amount paid by Tenant for over-standard
electrical usage for each year shall be based on the previous year's
charges. A similar accounting between Landlord and Tenant will occur
annually.
5. Except as met forth herein, the Lease shall remain unmodified and in
full force and effect. Should there by any conflict between the terms
of the Lease and the terms of this Seventh Addendum, the terms of this
Seventh Addendum shall control.
IN WITNESS WHEREOF, the parties have executed this Seventh Addendum to
Lease as of the date first written above.
The Xxxxxx Xxxx and Xxx Xxxx Revocable Trust
--------------------------------------------
Xxxxxx Xxxx, Trustee
Electronics for Imaging, Inc.
By: ----------------------------------------
Its: ---------------------------------------
2
EXHIBIT B
TO
SUBLEASE AGREEMENT
FLOOR PLAN
A floor plan generally depicting the Sublease Premises is attached
hereto.