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EXHIBIT 10.30
LEASE AGREEMENT
This Lease, made this 30th day of April, 1999 between CHARLESTON
PROPERTIES, a California General Partnership, hereinafter called Landlord, and
INTUIT INC., a Delaware corporation, hereinafter called Tenant.
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby hires and takes from
Landlord those certain premises (the "Premises") outlined in red on Exhibit "A",
attached hereto and incorporated herein by this reference thereto more
particularly described as follows:
The entire two story Building comprising 62,905 gross square feet of
space located in Mountain View, Santa Xxxxx County, California and further
identified at the following address:
0000 Xxxxx Xxxxxx
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As used herein the Complex shall mean and include all of the land outlined in
red and described in Exhibit "B", attached hereto, and all of the buildings,
improvements, fixtures and equipment now or hereafter situated on said land.
Said letting and hiring is upon and subject to the terms, covenants and
conditions hereinafter set forth and Tenant covenants as a material part of the
consideration for this Lease to perform and observe each and all of said terms,
covenants and conditions. This Lease is made upon the conditions of such
performance and observance.
1. USE Tenant shall use the Premises only in conformance with applicable
governmental laws, regulations, rules and ordinances for the purpose of office,
sales, R & D and related uses necessary for Tenant to conduct its business,
provided such uses are permitted and conform to City zoning laws and all other
governmental laws, regulations, rules and ordinances, and for no other purpose.
Tenant shall not do or permit to be done in or about the Premises or the Complex
nor bring or keep or permit to be brought or kept in or about the Premises or
the Complex anything which is prohibited by or will in any way increase the
existing rate of (or otherwise affect) fire or any insurance covering the
Complex or any part thereof, or any of its contents, or will cause a
cancellation of any insurance covering the Complex or any part thereof, or any
of its contents. Tenant shall not do or permit to be done anything in, on or
about the Premises or the Complex which will in any way obstruct or interfere
with the rights of other tenants or occupants of the Complex or injure or annoy
them, or use or allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose, nor shall Tenant cause, maintain or permit
any nuisance in, on or about the Premises or the Complex. No sale by auction
shall be permitted on the Premises. Tenant shall not place any loads upon the
floors, walls, or ceiling, which endanger the structure, or place any harmful
fluids or other materials in the drainage system of the building, or overload
existing electrical or other mechanical systems. No waste materials or refuse
shall be dumped upon or permitted to remain upon any part of the Premises or
outside of the building in which the Premises are a part, except in trash
containers placed inside exterior enclosures designated by Landlord for that
purpose or inside of the building proper where designated by Landlord. No
materials, supplies, equipment, finished products or semi-finished products, raw
materials or articles of any nature shall be stored upon or permitted to remain
outside the Premises or on any portion of common area of the Complex. No
loudspeaker or other device, system or apparatus which can be heard outside the
Premises shall be used in or at the Premises without the prior written consent
of Landlord. Tenant shall not commit or suffer to be committed any waste in or
upon the Premises. Tenant shall indemnify, defend and hold Landlord harmless
against any loss, expense, damage, attorney's fees, or liability arising out of
failure of Tenant to comply with any applicable law whose compliance is Tenant's
obligation hereunder. Tenant shall comply with any covenant, condition, or
restriction ("CC&R's") affecting the Premises. The provisions of this paragraph
are for the benefit of Landlord only and shall not be construed to be for the
benefit of any tenant or occupant of the Complex.
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2. TERM
A. The term of this Lease shall be for a period of Ten ( 10 ) years
(unless sooner terminated as hereinafter provided) and, subject to Paragraphs
2(B) and 3, shall commence on the 12th day of July, 1999 and end on the 11th day
of July, 2009.
B. Possession of the Premises shall be deemed tendered and the term of
this Lease shall commence when the first of the following occurs:
(1) Sixty days after the date Landlord offers Tenant possession
of the Premises for the commencement of construction of Tenant improvements (if
any), provided that such date of offer shall in no event be earlier than May
12, 1999; or
(2) Upon the occupancy of the Premises by any of Tenant's
operating personnel.
In the event Landlord is unable to make the Premises available to Tenant 60 days
prior to the Lease Commencement Date as set forth in Paragraph 2A above to
permit Tenant to commence construction of desired changes within the Premises,
Tenant shall receive any and all monies received by Landlord as penalties
(hereinafter referred to as Sun Excess Rent) from Sun Microsystems (the prior
Tenant) in excess of the Basic Rent amount that Sun Microsystems would have been
obligated to pay Landlord during any holdover period. For example, if Sun
Microsystems paid Landlord 150% of Basic Rent during a holdover period, Landlord
would receive 100% of the Basic Rent and Tenant would receive the 50% Sun Excess
Rent.
C. The Lease Commencement Date for the Premises leased hereunder shall
remain as stated in paragraph 2A provided Landlord has granted Tenant access to
the Premises sixty days prior to the commencement of the Lease for the purpose
of Tenant's construction of Tenant Improvements. At such time as Landlord has
made the Premises available for the commencement of construction, Tenant or
Tenant's contractor, shall be permitted to commence construction. During this 60
day period, Tenant shall hold Landlord, and WSJ Properties (Landlord's Property
Management Company retained to manage the Complex) harmless from any loss or
damage caused by Tenant's or Tenant's contractor's construction activities
during this period. During this 60 day construction period, Tenant shall not be
obligated to pay Basic or Additional Rent on the Premises so under construction
unless Tenant elects to occupy the Premises during this 60 day period with
Tenant's operating personnel. In the event Tenant does occupy the Premises with
operating personnel, Tenant shall occupy the Premises under all the terms and
conditions of the Lease and Tenant shall pay Landlord Basic and Additional Rent
beginning with said Date of Occupancy by Tenant's operating personnel up and
until the specified Commencement Date of the term of the Lease in the following
daily amounts:
Daily Basic Rent $5,975.98
Daily Additional Rent $ 209.68 (estimated)
The Commencement Date and Termination Date of Lease for the
Premises shall not be affected by this early occupancy and shall remain as
stated.
3. POSSESSION If Landlord, for any reason whatsoever, cannot offer
possession of said Premises to Tenant at the commencement of said term, as
hereinbefore specified, this Lease shall not be void or voidable; no obligation
of Tenant shall be affected thereby; nor shall Landlord or Landlord's agents be
liable to Tenant for any loss or damage resulting therefrom (subject to the
provisions of paragraph 2B.(2) above); but in that event the commencement and
termination dates of the Lease, and all other dates affected thereby shall be
revised to conform to the date of Landlord's delivery of possession, as
specified in Paragraph 2 B, above. The above, is, however, subject to the
provision that the period of delay of delivery of the Premises shall not exceed
90 days from the commencement date herein (except those delays caused by Acts of
God, strikes, war, utilities, governmental bodies, weather, unavailable
materials, and delays beyond Landlord's control shall be excluded in calculating
such period) in which instance Tenant, at its option, may, by written notice to
Landlord, terminate this Lease. Notwithstanding anything herein to the contrary,
if Landlord has not offered possession to Tenant of the Premises by August 12,
1999 then Tenant may cancel this Lease.
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4. RENT
A. BASIC RENT. Tenant agrees to pay to Landlord at such place as
Landlord may designate without deduction, offset, prior notice, or demand, and
Landlord agrees to accept as Basic Rent for the leased Premises the total sum of
twenty-four million six hundred sixty-two thousand eight hundred twenty-eight
and 40/100 ($24,662,828.40) Dollars in lawful money of the United States of
America, payable as follows: Upon execution of this Lease, $19,519.50 which
represents the partial month's rent described in Paragraph 4.B. below, offset by
a $100,000 credit granted by Landlord to Tenant for Tenant improvements as
described in Paragraph 9. In the event the Lease Commencement Date is other than
July 12, 1999, the first month's prorated amount as calculated in Paragraph 4.B.
below shall be adjusted. The table below indicates various time periods and the
total monthly Basic Rent due during each such time period. All Basic Rent shall
be due and payable on or before the first day of each month of the lease term as
indicated.
MONTH OF LEASE TERM TOTAL MONTHLY BASIC RENT
1-12 $179,279.25
13-24 $184,657.63
25-36 $190,197.36
37-48 $195,903.28
49-60 $201,780.38
61-72 $207,833.79
73-84 $214,068.80
85-96 $220,490.86
97-108 $227,105.59
109-120 $233,918.76
B. TIME FOR PAYMENT. In the event that the term of this Lease commences
on a date other than the first day of a calendar month, on the date of
commencement of the term hereof Tenant shall pay to Landlord as rent for the
period from such date of commencement to the first day of the next succeeding
calendar month that proportion of the monthly rent hereunder which the number of
days between such date of commencement and the first day of the next succeeding
calendar month bears to thirty (30), less the $100,000 credit referenced above
(in this case, based on a July 12, 1999 Lease Commencement Date, 20 days x
$5975.98 per day = $119,519.50 - $100,000 Tenant improvement credit =
$19,519.50). In the event that the term of this Lease for any reason ends on a
date other than the last day of a calendar month, on the first day of the last
calendar month of the term hereof Tenant shall pay to Landlord as rent for the
period from said first day of said last calendar month to and including the last
day of the term hereof that proportion of the monthly rent hereunder which the
number of days between said first day of said last calendar month and the last
day of the term hereof bears to thirty (30).
C. LATE CHARGE. Notwithstanding any other provision of this Lease, if
Tenant is in default in the payment of rent as set forth in this Paragraph 4
when due, or any part thereof, Tenant agrees to pay Landlord, in addition to the
delinquent rental due, a late charge for each rental payment in default ten (10)
days. Said late charge shall equal ten (10%) percent of each rental payment so
in default. Landlord shall not assess a late charge after such 10 day period
unless Landlord thereafter notifies Tenant by telephone or fax that Tenant's
rental is delinquent and said rental remains delinquent for 48 hours after said
notice to Tenant.
D. ADDITIONAL RENT. Beginning with the commencement date of the term of
this Lease, Tenant shall pay to Landlord in addition to the Basic Rent and as
Additional Rent the following:
(1) Tenant's proportionate share of all utilities relating to the
Complex as set forth in Paragraph 11, and
(2) Tenant's proportionate share of all Taxes relating to the
Complex as set forth in Paragraph 12, and
(3) Tenant's proportionate share of all insurance premiums relating
to the Complex, as set forth in Paragraph 15, and
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(4) Tenant's proportionate share of expenses for the operation,
management, maintenance and repair of the Building (including
common areas of the Building) and Common Areas of the Complex in
which the Premises are located as set forth in Paragraph 7, and
(5) All charges, costs and expenses, which Tenant is required to pay
hereunder, together with all interest and penalties, costs and
expenses including attorney's fees and legal expenses, that may
accrue thereto in the event of Tenant's failure to pay such
amounts, and all damages, reasonable costs and expenses which
Landlord may incur by reason of default of Tenant or failure on
Tenant's part to comply with the terms of this Lease. In the
event of nonpayment by Tenant of Additional Rent, Landlord shall
have all the rights and remedies with respect thereto as
Landlord has for nonpayment of rent.
Tenant shall pay to Landlord monthly, in advance, Tenant's prorata share of an
amount estimated by Landlord in Landlord's reasonable judgement based on prior
year's expenses to be Landlord's approximate average monthly expenditure for
such Additional Rent items, which estimated amount shall be reconciled within
120 days of the end of each calendar year as compared to Landlord's actual
expenditure for said Additional Rent items, with Tenant paying to Landlord, upon
demand, any amount of actual expenses expended by Landlord in excess of said
estimated amount, or Landlord promptly refunding to Tenant (providing Tenant is
not in default beyond any applicable notice and cure period in the performance
of any of the terms, covenants and conditions of this Lease) any amount of
estimated payments made by Tenant in excess of Landlord's actual expenditures
for said Additional Rent items. Landlord shall provide Tenant reasonably
adequate supporting documentation to the reconciliation.
Landlord's estimate of the 1999 expense and Tenant's payment for such
Additional Rent as of the commencement of the term of this lease shall be six
thousand two hundred ($6,200.00) Dollars per month Any payments required to be
made by Tenant for Additional Rent shall be made by check or instrument separate
from that check or instrument used by Tenant to make any payments for Basic Rent
pursuant to paragraph 4 A.
For purposes of calculating Tenant's proportionate share of
Additional Rent Expenses for the Complex it is hereby mutually
agreed the proportionate share is 100% because Tenant leases the
entire building and the parcel of land upon which it is located.
Landlord's monthly estimate for Additional Rent items described
in this paragraph 4D (excluding taxes) for calendar year 1999 is
$6,200 per month (approximately 62,905 x $.10). The following
represents a line item breakdown of Landlord's estimate of
monthly expenses (expressed in dollars per square foot per
month):
Exterior maintenance and landscape $ 0.035
Insurance (including earthquake insurance) 0.045
Management 0.02
Utilities (Tenant pays directly) -0-
Janitorial (Tenant pays directly) -0-
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Total $ 0.100
Landscape water for the Complex shall be paid directly by
Tenant.
Taxes shall be billed separately and prorated for periods of
occupancy and shall be due December 1st and April 1st of each
calendar year. Landlord's estimate for the 1999-2000 Tax year
(July 1, 1999 - June 30, 2000) for the Complex is as follows:
Parcel #116-02-058-00
$58,910.72
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Tenant shall have the right, during normal business hours and at
Tenant's own expense, to audit Landlord's records concerning
Additional Rent items. In the event a discrepancy of greater
than 3% of Tenant's correct share of costs is discovered,
Landlord shall pay the cost of Tenant's out of pocket costs to
third parties and shall credit or refund to Tenant the amount of
the discrepancy. If the audit indicates Tenant owes Landlord an
additional amount, Tenant shall pay the additional amount
promptly. If the audit indicates that Landlord owes Tenant
money, Landlord shall promptly refund such amount to Tenant.
The respective obligations of Landlord and Tenant under this paragraph
shall survive the expiration or other termination of the tern of this Lease, and
if the term hereof shall expire or shall otherwise terminate on a day other than
the last day of a calendar year, the actual Additional Rent incurred for the
calendar year in which the term hereof expires or otherwise terminates shall be
determined and settled on the basis of the statement of actual Additional Rent
for such calendar year and shall be prorated in the proportion which the number
of days in such calendar year preceding such expiration or termination bears to
365.
E. PLACE OF PAYMENT OF RENT AND ADDITIONAL RENT. All Basic Rent
hereunder and all payments hereunder for Additional Rent shall be paid to
Landlord at the office of Landlord at 0000 Xxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx
00000, or to such other person or to such other place as Landlord may from time
to time designate in writing.
F. F. SECURITY DEPOSIT. (NONE)
5. RULES AND REGULATIONS AND COMMON AREA Subject to the terms and
conditions of this Lease and such Rules and Regulations as Landlord may from
time to time prescribe, Tenant and Tenant's employees, invitees and customers
shall, in common with other occupants of the Complex in which the Premises are
located, and their respective employees, invitees and customers, and others
entitled to the use thereof, have the non-exclusive right to use the access
roads, parking areas, and facilities provided and designated by Landlord for the
general use and convenience of the occupants of the Complex in which the
Premises are located, which areas and facilities are referred to herein as
"Common Area". This right shall terminate upon the termination of this Lease.
Landlord reserves the right from time to time to make reasonable changes in the
shape, size, location, amount and extent of Common Area. All such changes shall
not unreasonably affect Tenant's access or use of the Premises and shall not
diminish Tenant's parking rights. Landlord further reserves the right to
promulgate such reasonable rules and regulations relating to the use of the
Common Area, and any part or parts thereof, as Landlord may deem appropriate for
the best interests of the occupants of the Complex. The Rules and Regulations
shall be binding upon Tenant upon delivery of a copy of them to Tenant, and
Tenant shall abide by them and cooperate in their observance. Such Rules and
Regulations may be reasonably amended by Landlord from time to time, with or
without advance notice, and all amendments shall be effective upon delivery of a
copy to Tenant. Landlord shall not be responsible to Tenant for the
non-performance by any other tenant or occupant of the Complex of any of said
Rules and Regulations.
Landlord shall operate, manage and maintain the Common Area. The Common
Area shall be maintained in a first class manner and the expenditures for such
maintenance shall be at the discretion of Landlord.
6 PARKING Landlord hereby acknowledges that Tenant shall have the right to
restripe the Complex parking lot at Tenant's own expense. Any restriping shall
be in compliance will all applicable codes and regulations and Landlord shall
cooperate with Tenant in this effort. Tenant shall have the right to use all
parking spaces in the common parking areas of the Complex. Tenant agrees that
Tenant, Tenant's employees, agents, representatives and/or invitees shall not
use parking spaces outside of the Complex parking allocated to Tenant hereunder.
Tenant shall not, at any time, park, or permit to be parked, any trucks or
vehicles adjacent to the loading areas so as to interfere in any way with the
use of such areas, nor shall Tenant at any time park, or permit the parking of
Tenant's trucks or other vehicles or the trucks and vehicles of
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Tenant's suppliers or others, in any portion of the common area not designated
by Landlord for such use by Tenant. Tenant shall not park nor permit to be
parked, any inoperative vehicles or equipment on any portion of the common
parking area or other common areas of the Complex. Tenant agrees to assume
responsibility for compliance by its employees with the parking provision
contained herein. Tenant hereby authorizes Landlord at Tenant's sole expense to
tow away from the Complex any vehicle belonging to Tenant or Tenant's employees
parked in violation of these provisions, or to attach violation stickers or
notices to such vehicles. Tenant shall use the parking areas for vehicle parking
only, and shall not use the parking areas for storage.
7. EXPENSES OF OPERATION, MANAGEMENT AND MAINTENANCE OF THE COMMON AREAS OF
THE COMPLEX, PREMISES AND BUILDING IN WHICH THE PREMISES ARE LOCATED As
Additional Rent and in accordance with Paragraph 4 D of this Lease, Tenant shall
pay to Landlord Tenant's proportionate share (calculated on a square footage or
other equitable basis as calculated by Landlord) of all expenses of operation,
management, maintenance and repair of the Common Areas of the Complex including,
but not limited to, license, permit and inspection fees; security; utility
charges associated with exterior landscaping and lighting (including water and
sewer charges); all charges incurred in the maintenance of landscaped areas,
lakes, parking lots, sidewalks, driveways; maintenance, repair and replacement
of all fixtures and electrical, mechanical and plumbing systems; structural
elements and exterior surfaces of the buildings; salaries and employee benefits
of personnel and payroll taxes applicable thereto; supplies, materials,
equipment and tools; the cost of capital expenditures which have the effect of
reducing operating expenses, provided, however, that in the event Landlord makes
such capital improvements, Landlord shall amortize its investment in said
improvements (together with interest at the rate of fifteen (15%) percent per
annum on the unamortized balance) as an operating expense in accordance with
standard accounting practices, provided, that such amortization is not at a rate
greater than the anticipated savings in the operating expenses.
Further, Landlord hereby represents and covenants that with respect to direct
maintenance of the Premises only WSJ's overhead shall be included in these costs
and no profit component is or will be built into the cost of the services or
materials provided by any of Landlord's subsidiaries or affiliates who are under
contract to provide services and materials to the Premises (including without
limitation WSJ Properties). Excluded as reimbursable costs from Tenant to
Landlord are the following:
1. any fines, costs, penalties or interest resulting from the
negligence or willful misconduct of the Landlord or its agents,
contractors, or employees;
2. any costs of any services sold or provided to tenants or other
occupants for which Landlord or Managing Agent is entitled to be
reimbursed by such tenants or other occupants;
3. acquisition costs for sculptures, paintings, or other objects of
art; and
4. costs for which Landlord has been compensated by a management
fee; for example, accounting costs necessary to operate the
Complex and report its financial status to the Landlord.
"Additional Rent" as used herein shall not include Landlord's debt
repayments; interest on charges; expenses directly or indirectly incurred by
Landlord for the benefit of any other tenant; cost for the installation of
partitioning or any other tenant improvements; cost of attracting tenants;
depreciation; interest, or executive salaries.
Tenant agrees to contract and pay directly for five-day janitorial
service for the leased Premises and Landlord agrees to maintain the Complex in a
first-class manner.
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8. ACCEPTANCE AND SURRENDER OF PREMISES By entry hereunder, Tenant accepts
the Premises as being in good and sanitary order, condition and repair and
accepts the building and improvements included in the Premises in their present
condition and without representation or warranty by Landlord as to the condition
of such building or as to the use or occupancy which may be made thereof except
as otherwise provided herein. Any exceptions to the foregoing must be by written
agreement executed by Landlord and Tenant. Tenant agrees on the last day of the
Lease term, or on the sooner termination of this Lease, to surrender the
Premises promptly and peaceably to Landlord in good condition and repair (damage
by Acts of God, fire or normal wear and tear excepted), with all interior walls
painted, or cleaned so that they appear freshly painted, and repaired and
replaced, if damaged; all floors cleaned and waxed; all carpets cleaned and
shampooed; the air conditioning and heating equipment serviced by a reputable
and licensed service firm and in good operating condition (provided the
maintenance of such equipment has been Tenant's responsibility during the term
of this Lease) together with all alterations, additions and improvements which
may have been made in, to, or on the Premises (except movable trade fixtures
installed at the expense of Tenant) except that subject to Paragraph 9 of this
Lease, Landlord shall notify Tenant at the same time as Landlord provides its
consent to such alterations, additions, or improvements which exceed $15,000 in
construction costs, whether Landlord desires to have the Premises or any part or
parts thereof restored to their condition and configuration as the Premises
existed prior to such alteration, addition, or improvement and if Landlord shall
so desire, then Tenant shall restore said Premises or such part or parts thereof
before the end of this Lease at Tenant's sole cost and expense. In no event
shall Tenant be required to restore the cafeteria portion of the Premises to
office space or any other usage. Tenant, on or before the end of the term or
sooner termination of this Lease, shall remove all of Tenant's personal property
and trade fixtures from the Premises, and all property not so removed on or
before the end of the term or sooner termination of this Lease shall be deemed
abandoned by Tenant and title to same shall thereupon pass to Landlord without
compensation to Tenant. Landlord may, upon termination of this Lease, remove all
moveable furniture and equipment so abandoned by Tenant, at Tenant's sole cost,
and repair any damage caused by such removal at Tenant's sole cost. If the
Premises be not surrendered at the end of the term or sooner termination of this
Lease, Tenant shall indemnify Landlord against loss or liability resulting from
the delay by Tenant in so surrendering the Premises including, without
limitation, any claims made by any succeeding tenant founded on such delay.
Nothing contained herein shall be construed as an extension of the term hereof
or as a consent of Landlord to any holding over by Tenant. The voluntary or
other surrender of this Lease or the Premises by Tenant or a mutual cancellation
of this Lease shall not work as a merger and, at the option of Landlord, shall
either terminate all or any existing subleases or subtenancies or operate as an
assignment to Landlord of all or any such subleases or subtenancies.
9. ALTERATIONS AND ADDITIONS Tenant shall not make, or suffer to be made,
any alteration or addition to the Premises, or any part thereof, without the
written consent of Landlord first had and obtained by Tenant, but at the cost of
Tenant, and any addition to, or alteration of, the Premises, except moveable
furniture and trade fixtures, shall at once become a part of the Premises and
belong to Landlord. If Landlord consents to the making of any alteration,
addition, or improvement to or of the Premises by Tenant, the same shall be made
at Tenant's sole cost and expense. Subject to Paragraph 17 below, any
modifications to the building or building systems required by governmental code
or otherwise as a result of Tenant's alterations, additions or improvements
shall be made at Tenant's sole cost and expense. Tenant shall retain title to
all moveable furniture and trade fixtures placed in the Premises. All heating,
lighting, electrical, airconditioning, partitioning, drapery, carpeting and
floor installations made by Tenant, together with all property that has become
an integral part of the Premises, shall not be deemed trade fixtures. Tenant
agrees that it will not proceed to make any alterations or additions, without
having obtained consent from Landlord to do so, and until five (5) days from the
receipt of such consent, in order that Landlord may post appropriate notices to
avoid any liability to contractors or material suppliers for payment for
Tenant's improvements. Tenant will at all times permit such notices to be posted
and to remain posted until the completion of work. Tenant shall, if required by
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Landlord, secure at Tenant's own cost and expense, a completion and lien
indemnity bond, reasonably satisfactory to Landlord, for such work in
excess of $100,000. Tenant further covenants and agrees that any
mechanic's liens filed against the Premises or against the Complex for
work claimed to have been done for, or materials claimed to have been
furnished to Tenant, will be discharged by Tenant, by bond or otherwise,
within ten (10) days after the filing thereof, at the cost and expense
of Tenant. Any exceptions to the foregoing must be made in writing and
executed by both Landlord and Tenant.
Landlord shall lease the premises to Tenant in an "as-is" condition, and other
than Landlord's repair obligation per paragraph 47 and Landlord's code
compliance obligation per paragraph 17, all cost of construction including
demolition, architectural, drawings, permitting fees, etc, shall be paid by
Tenant. Notwithstanding anything herein to the contrary, Landlord agrees to
grant Tenant a $100,000 allowance, in the form of a credit against the first
month's Basic Rent, towards improvements Tenant may wish to make to the
Premises.
Notwithstanding anything herein to the contrary, upon Landlord's
approval of Tenant's initial Tenant Improvements to be installed and paid for by
Tenant (except for the $100,000 allowance as described above), Tenant shall not
be required to restore the initial build-out to the configuration and condition
in existence as of the date Landlord first delivers possession of the Premises
to Tenant. Should Tenant elect to install a ceiling and lighting system that is
other than a standard 2 x 2 or 2 x 4 T-Bar grid and 2 x 2 or 2 x 4 drop-in
parabolic lens with fluorescent bulb fixtures Landlord may, in its sole
discretion determined at the time Landlord approves the plans, require
restoration to the existing ceiling system and similar light fixtures. If Tenant
makes no changes to the Premises at the outset and uses the Premises in an as-is
condition, and later makes substantial renovations or improvements, then, at
Landlord's option, any future restoration required shall be to the original
condition and configuration as first delivered to Tenant. At the time any
subsequent alterations are requested, Landlord shall notify Tenant of any
restoration requirements per this paragraph 9. Landlord shall not have the right
to approve or disapprove or to require restoration in the event any changes
subsequent to the initial build-out of any building meet the following criteria:
1) The total cost of construction is less than $15,000.
2) The changes do not in any way affect exiting or fire corridors,
restrooms, building entrances, lobbies, building systems or
structure. Landlord's granting approval to Tenant to make
changes herein described without the obligation to restore is in
reliance upon Tenant's making commercially reasonably
alterations and Tenant agrees not to use this subparagraph to
circumvent Landlord's right to require Tenant to restore the
premises under paragraph 9.
Tenant shall have the right to employ a general contractor of its
choosing for any modifications desired to be made to the Premises leased
hereunder. However, Tenant hereby agrees in the event Tenant elects to make
subsequent modifications to the Premises to consider the WSJ Properties
Construction Division a preferred vendor and Tenant hereby acknowledges that it
is Landlord's strong preference to have WSJ Properties Construction Division
perform any modifications to the Premises. Although Tenant shall consider WSJ
Properties Construction Division a preferred vendor, Tenant shall be under no
obligation to select WSJ Properties and Tenant further acknowledges WSJ is a
completely separate entity from Landlord and any disputes relating to
construction performed by WSJ for Tenant shall be resolved directly between WSJ
and Tenant.
10. TENANT MAINTENANCE Tenant shall at its sole cost and expense, keep and
maintain the interior of the Premises (including appurtenances) and every part
thereof in a high standard of maintenance and repair, and in good and sanitary
condition. Tenant's maintenance and repair responsibilities herein referred to
include, but are not limited to, all windows, window frames, plate glass,
glazing, truck doors, plumbing systems (such as water and drain lines, sinks,
toilets, faucets, drains, showers and water fountains), electrical systems (such
as panels, conduits, outlets, lighting fixtures, lamps, bulbs, tubes, ballasts),
heating and air-conditioning systems (such as compressors, fans, air handlers,
ducts, mixing boxes, thermostats, time clocks, boilers, heaters, supply and
return grills), store fronts, roofs, downspouts, all interior improvements
within the Premises including but not limited to the kitchen and cafeteria and
all related equipment, wall coverings, window coverings, carpet, floor
coverings, partitioning, ceilings,
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doors (both interior and exterior, including closing mechanisms,
latches, locks, skylights (if any), automatic fire extinguishing
systems, and elevators and all other interior improvements of any nature
whatsoever. Tenant agrees to provide carpet xxxxxxx under all rolling
chairs or to otherwise be responsible for wear and tear of the carpet
caused by such rolling chairs if such wear and tear exceeds that caused
by normal foot traffic in surrounding areas. Areas of excessive wear
shall be replaced at Tenant's sole expense upon Lease termination.
Tenant hereby waives all rights under, and benefits of, subsection 1 of
Section 1932 and Section 1941 and 1942 of the California Civil Code and
under any similar law, statute or ordinance now or hereafter in effect.
Tenant specifically agrees to maintain the interior and exterior of the
Premises, all mechanical equipment and plumbing and electrical systems
in a first-class manner. Copies of all maintenance contracts entered
into by Tenant shall be supplied to Landlord on a regular basis. In the
event the Premises are damaged and Landlord has elected to rebuild the
Premises, as set forth in paragraph 24 below, then Tenant shall be
excused from maintaining the Premises during the period of rebuilding.
11. UTILITIES OF THE BUILDING IN WHICH THE PREMISES ARE LOCATED
Tenant shall pay promptly, as the same become due, all charges for water, gas,
electricity, telephone, telex and other electronic communications service, sewer
service, waste pick-up and any other utilities, materials or services furnished
directly to or used by Tenant on or about the Premises during the term of this
Lease, including, without limitation, any temporary or permanent utility
surcharge or other exactions whether or not hereinafter imposed. Landlord shall
not be liable for and Tenant shall not be entitled to any abatement or reduction
of rent by reason of any interruption or failure of utility services to the
Premises when such interruption or failure is caused by accident, breakage,
repair, strikes, lockouts, or other labor disturbances or labor disputes of any
nature, or by any other cause, similar or dissimilar, beyond the reasonable
control of Landlord.
12. TAXES A. As Additional Rent and in accordance with paragraph 4D of this
Lease, Tenant shall pay to Landlord Tenant's proportionate share of all Real
Property Taxes, which prorata share shall be allocated to the leased Premises by
square footage or other equitable basis, as calculated by Landlord. The term
"Real Property Taxes", as used herein, shall mean (i) all taxes, assessments,
levies and other charges of any kind or nature whatsoever, general and special,
foreseen and unforeseen (including all installments of principal and interest
required to pay any general or special assessments for public improvements and
any increases resulting from reassessments caused by any change in ownership of
the Complex) now or hereafter imposed by any governmental or quasi-governmental
authority or special district having the direct or indirect power to tax or levy
assessments, which are levied or assessed against, or with respect to the value,
occupancy or use of, all or any portion of the Complex (as now constructed or as
may at any time hereafter be constructed, altered, or otherwise changed) or
Landlord's interest therein; any improvements located within the Complex
(regardless of ownership); the fixtures, equipment and other property of
Landlord, real or personal, that are an integral part of and located in the
Complex; or parking areas, public utilities, or energy within the Complex; (ii)
all charges, levies or fees imposed by reason of environmental regulation or
other governmental control of the Complex; and (iii) all costs and fees
(including attorney's fees) incurred by Landlord in contesting any Real Property
Tax and in negotiating with public authorities as to any Real Property Tax. In
the event said contesting results in a refund of Real Property Taxes, Tenant
shall be credited with the appropriate proportionate share of said refund
reflecting Tenant's period of occupancy. If at any time during the term of this
Lease the taxation or assessment of the Complex prevailing as of the
commencement date of this Lease shall be altered so that in lieu of or in
addition to any Real Property Tax described above there shall be levied,
assessed or imposed (whether by reason of a change in the method of taxation or
assessment, creation of a new tax or charge, or any other cause) an alternate or
additional tax or charge (i) on the value, use or occupancy of the Complex or
Landlord's interest therein or (ii) on or measured by the gross receipts, income
or rentals from the Complex, on Landlord's business of leasing the Complex, or
computed in any manner with respect to the operation of the Complex, then any
such tax or charge, however designated, shall be included within the meaning of
the term "Real Property Taxes" for purposes of this Lease. If any Real Property
Tax is based upon property or rents unrelated to the Complex, then only that
part of such Real Property Tax that is
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fairly allocable to the Complex shall be included within the meaning of the term
"Real Property Taxes". Notwithstanding the foregoing, the term "Real Property
Taxes" shall not include estate, inheritance, gift or franchise taxes of
Landlord or the federal or state net income tax imposed on Landlord's income
from all sources.
B. TAXES ON TENANT'S PROPERTY
(1) Tenant shall be liable for and shall pay ten days before delinquency, taxes
levied against any personal property or trade fixtures placed by Tenant in or
about the Premises. If any such taxes on Tenant's personal property or trade
fixtures are levied against Landlord or Landlord's property or if the assessed
value of the Premises is increased by the inclusion therein of a value placed
upon such personal property or trade fixtures of Tenant and if Landlord, after
written notice to Tenant, pays the taxes based on such increased assessment,
which Landlord shall have the right to do regardless of the validity thereof,
but only under proper protest if requested by Tenant, Tenant shall upon demand,
as the case may be, repay to Landlord the taxes so levied against Landlord, or
the proportion of such taxes resulting from such increase in the assessment;
provided that in any such event Tenant shall have the right, in the name of
Landlord and with Landlord's full cooperation, to bring suit in any court of
competent jurisdiction to recover the amount of any such taxes so paid under
protest, and any amount so recovered shall belong to Tenant.
(2) If the Tenant improvements in the Premises, whether installed, and/or paid
for by Landlord or Tenant and whether or not affixed to the real property so as
to become a part thereof; are assessed for Real Property Tax purposes at a
valuation higher than the valuation at which standard office improvements in
other space in the Complex are assessed, then the Real Property Taxes and
assessments levied against Landlord or the Complex by reason of such excess
assessed valuation shall be deemed to be taxes levied against personal property
of Tenant and shall be governed by the provisions of 12A(i), above. If the
records of the County Assessor are available and sufficient detailed to serve as
a basis for determining whether said Tenant improvements are assessed at a
higher valuation than standard office improvements in other space in the
Complex, such records shall be binding on both the Landlord and the Tenant. If
the records of the County Assessor are not available or sufficiently detailed to
serve as a basis for making said determination, the actual cost of construction
shall be used.
13. LIABILITY INSURANCE Tenant, at Tenant's expense, agrees to keep in force
during the term of this Lease a policy of comprehensive public liability
insurance with limits in the amount of $1,000,000/1,000,000 for injuries to or
death of persons occurring in, on or about the Premises or the Complex, and
property damage insurance with limits of $500,000. The policy or policies
affecting such insurance, certificates of which shall be furnished to Landlord,
shall name Landlord as additional insured, and shall insure any liability of
Landlord, contingent or otherwise, as respects acts or omissions of Tenant, its
agents, employees or invitees or otherwise by any conduct or transactions of any
of said persons in or about or concerning the Premises, including any failure of
Tenant to observe or perform any of its obligations hereunder; shall be issued
by an insurance company admitted to transact business in the State of
California; and shall provide that the insurance effected thereby shall not be
canceled, except upon thirty (30) days' prior written notice to Landlord. If,
during the term of this Lease, in the reasonable opinion of Landlord's Lender,
insurance advisor or counsel, the amount of insurance described in this
paragraph 13 is not adequate, Tenant agrees to increase said coverage to such
reasonable amount as Landlord's Lender, insurance advisor or counsel shall deem
adequate. Landlord shall carry a reasonable amount of liability insurance.
14. TENANT'S PERSONAL PROPERTY INSURANCE AND WORKER'S COMPENSATION INSURANCE
Tenant shall maintain a policy or policies of fire and property damage insurance
in "all risk" form with a sprinkler leakage endorsement insuring the personal
property, inventory, trade fixtures and leasehold improvements within the leased
Premises for the full replacement value thereof. The proceeds from any of such
policies shall be used for the repair or replacement of such items so insured.
Tenant shall also maintain a policy or policies of worker's compensation
insurance and any other employee benefit insurance sufficient to comply with all
laws.
15. PROPERTY INSURANCE Landlord shall purchase and keep in force and, as
Additional Rent and in accordance with Paragraph 4D of this Lease,
Tenant shall pay to Landlord Tenant's proportionate share (calculated on
a square footage or other equitable basis as calculated by Landlord) of
the cost of policy or policies of insurance covering loss or damage to
the Premises
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and Complex in the amount of the full replacement value thereof,
providing protection against those perils included within the
classification of "all risks" insurance and flood and/or earthquake
insurance, if available, plus a liability policy and a policy of rental
income insurance in the amount of one hundred (100%) percent of twelve
(12) months Basic Rent, plus sums paid as Additional Rent. If such
insurance cost is increased due to Tenant's use of the Premises or the
Complex, Tenant agrees to pay to Landlord the full cost of such
increase. Tenant shall have no interest in nor any right to the proceeds
of any insurance procured by Landlord for the Complex.
Landlord and Tenant do each hereby respectively release the other, to
the extent of insurance coverage of the releasing party, from any
liability for loss or damage caused by fire or any of the extended
coverage casualties included in the releasing party's insurance
policies, irrespective of the cause of such fire or casualty; provided,
however, that if the insurance policy of either releasing party
prohibits such waiver, then this waiver shall not take effect until
consent to such waiver is obtained. If such waiver is so prohibited, the
insured party affected shall promptly notify the other party thereof.
16. INDEMNIFICATION Landlord shall not be liable to Tenant and Tenant hereby
waives all claims against Landlord for any injury to or death of any person or
damage to or destruction of property in or about the Premises or the Complex by
or from any cause whatsoever, including, without limitation, gas, fire, oil,
electricity or leakage of any character from the roof, walls, basement or other
portion of the Premises or the Complex but excluding, however, the negligence or
willful misconduct of Landlord, its agents, servants, employees, invitees, or
contractors of which negligence Landlord has knowledge and reasonable time to
correct. The requirement of knowledge and reasonable time to correct shall not
apply to direct negligent acts by Landlord or Landlord's agents, servants,
employees, invitees, or contractors. Except as to injury to persons or damage to
property the principal cause of which is the negligence or willful misconduct of
Landlord, its agents, servants, employees, invitees, or contractors, Tenant
shall hold Landlord harmless from and defend Landlord against any and all
expenses, including reasonable attorney's fees, in connection therewith, arising
out of any injury to or death of any person or damage to or destruction of
property occurring in, on or about the Premises, or any part thereof, from any
cause whatsoever.
17. COMPLIANCE Tenant, at its sole cost and expense, shall promptly comply
with all laws, statutes, ordinances and governmental rules, regulations or
requirements now or hereafter in effect; with the requirements of any board of
fire underwriters or other similar body now or hereafter constituted; and with
any direction or occupancy certificate issued pursuant to law by any public
officer; provided, however, that no such failure shall be deemed a breach of
these provisions if Tenant, immediately upon notification, commences to remedy
or rectify said failure. The judgement of any court of competent jurisdiction or
the admission of Tenant in any action against Tenant, whether Landlord be a
party thereto or not, that Tenant has violated any such law, statute, ordinance
or governmental rule, regulation, requirement, direction or provision, shall be
conclusive of that fact as between Landlord and Tenant. This paragraph shall not
be interpreted as requiring Tenant to make structural changes or improvements,
except to the extent such changes or improvements are required as a result of
Tenant's use of the Premises. Tenant shall, at its sole cost and expense, comply
with any and all requirements pertaining to said Premises, of any insurance
organization or company, necessary for the maintenance of reasonable fire and
public liability insurance covering the Premises.
With respect to all applicable local, state and federal regulations and
codes including without limitation the Americans with Disabilities Act and Title
XXIV of the California Energy Code, as of the commencement of the lease term
for the Premises, Landlord at Landlord's sole cost and expense shall make all
modifications to the exterior of the Premises such as parking lots, stairways,
walkways, etc. to bring the exterior of the Premises leased hereunder into
compliance. Commencing as of the date Landlord offers possession of the Premises
to Tenant, Landlord shall at Landlord's sole cost and expense make any
governmentally required modifications to the restrooms to bring them into
compliance with all applicable codes. Landlord's compliance obligations with
respect to the restrooms set forth in this paragraph 17 shall also include
replacing fixtures and finishes as necessary. Landlord's sole obligation with
respect to compliance is therefore limited to any governmentally required
modifications to the Bathrooms within the Premises and any governmentally
required modifications to the exterior. All other costs and obligations
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with respect to compliance shall rest solely with Tenant. All such interior
modifications shall be completed diligently prior to the Lease Commencement Date
referenced in Paragraph 2A above. All exterior modifications to be made by
Landlord shall be diligently constructed to completion.
18. LIENS Tenant shall keep the Premises and the Complex free from any liens
arising out of any work performed, materials furnished or obligation incurred by
Tenant. In the event that Tenant shall not, within ten (10) days following the
imposition of such lien, cause the same to be released of record, Landlord shall
have, in addition to all other remedies provided herein and by law, the right,
but no obligation, to cause the same to be released by such means as it shall
deem proper, including payment of the claim giving rise to such lien. All sums
paid by Landlord for such purpose, and all expenses incurred by it in connection
therewith, shall be payable to Landlord by Tenant on demand with interest at the
prime rate of interest as quoted by the Bank of America.
19. ASSIGNMENT AND SUBLETTING Tenant shall not assign, transfer or
hypothecate the leasehold estate under this Lease, or any interest therein, and
shall not sublet the Premises, or any part thereof, or any right or privilege
appurtenant thereto, or suffer any other person or entity to occupy or use the
Premises, or any portion thereof, without, in each case, the prior written
consent of Landlord which consent will not be unreasonably withheld. Tenant
agrees to pay to Landlord, as additional rent, 50% of all rents (after Tenant
deducts all costs of subleasing) or additional consideration received by Tenant
from its assignees, transferees or subtenants excluding the permitted assignees
described in the last sentence of this paragraph in excess of the rent payable
by Tenant to Landlord hereunder. Tenant shall, by thirty (30) days' written
notice, advise Landlord of its intent to assign or transfer Tenant's interest in
the Lease or sublet the Premises or any portion thereof for any part of the term
hereof. In the event Tenant is allowed to assign, transfer or sublet the whole
or any part of the Premises, with the prior written consent of Landlord, no
assignee, transferee or subtenant shall assign or transfer this Lease, either in
whole or in part, or sublet the whole or any part of the Premises, without also
having obtained the prior written consent of Landlord. A consent of Landlord to
one assignment, transfer, hypothecation, subletting, occupation or use by any
other person shall not release Tenant from any of Tenant's obligations hereunder
or be deemed to be a consent to any subsequent similar or dissimilar assignment,
transfer, hypothecation, subletting, occupation or use by any other person. Any
such assignment, transfer, hypothecation, subletting, occupation or use without
such consent shall be void and shall constitute a breach of this Lease by Tenant
and shall, at the option of Landlord exercised by written notice to Tenant,
terminate this Lease. The leasehold estate under this Lease shall not, nor shall
any interest therein, be assignable for any purpose by operation of law without
the written consent of Landlord. As a condition to its consent, Landlord may
require Tenant to pay all reasonable expenses in connection with the assignment,
and Landlord may require Tenant's assignee or transferee (or other assignees or
transferees) to assume in writing all of the obligations under this Lease and
for Tenant to remain liable to Landlord under the Lease. Notwithstanding the
foregoing, without the prior consent of Landlord, Tenant shall have the right
(i) to assign this Lease to an affiliate or subsidiary of Tenant or (ii) to
merge with another corporation or entity or (iii) to enter into an acquisition
of another corporation or be acquired by another corporation, in each case
provided that Landlord is promptly provided with notice thereof and Tenant
remains fully liable for the full performance of Tenant's obligation under the
Lease; provided, however, that in the event Tenant merges into another entity or
is wholly acquired by another entity (in each case, the "Successor Entity"), and
provided Tenant ceases to exist and the Successor Entity is at least as well
capitalized as Tenant and has at least the same overall financial wherewithal as
Tenant had prior to such merger or acquisition, it shall be the Successor Entity
(not Tenant) who shall be fully liable hereunder as the successor tenant.
20. SUBORDINATION AND MORTGAGES In the event Landlord's title or leasehold
interest is now or hereafter encumbered by a deed of trust, upon the interest of
Landlord in the land and buildings in which the demised Premises are located, to
secure a loan from a lender (hereinafter referred to as "Lender") to Landlord,
Tenant shall, at the request of Landlord or Lender, execute in writing an
agreement subordinating its rights under this Lease to the lien of such deed of
trust, or, if so requested, agreeing that the lien of Lender's deed of trust
shall be or remain subject and subordinate to the rights of Tenant under this
Lease. Tenant hereby irrevocably appoints Landlord the attorney in fact of
Tenant to execute, deliver and record any such instrument or instruments for and
in the name and on behalf of Tenant. Notwithstanding any such subordination,
Tenant's possession under this Lease shall not be disturbed if
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Tenant is not in default and so long as Tenant shall pay all rent and observe
and perform all of the provisions set forth in this Lease and any such
subordination agreement shall so reflect. Tenant agrees to send to any
mortgagees and/or deed of trust holders, by registered mail, a copy of any
notice of default served by Tenant upon the Landlord, provided that prior to
such notice, Tenant has been notified, in writing (by way of notice of
assignment of rents or otherwise) of the addresses of such mortgages and/or deed
of trust holders. Tenant further agrees that if Landlord shall have failed to
cure such default within the time provided for in this Lease, any such
mortgagees and/or deed of trust holders shall have an additional thirty (30)
days within which to cure such default, or if such default is not reasonably
susceptible of cure within that time, then such additional time as may be
reasonably necessary if within such (30) days, any mortgagee and/or deed of
trust holder has commenced and is diligently pursuing the remedies necessary to
cure such default, (including but not limited to commencement of foreclosure
proceedings), in which event this Lease shall not be terminated when such
remedies are being diligently pursued. Landlord further represents that there
are no outstanding loans on the Premises leased hereunder. In the event Landlord
borrows in the future and uses the Premises leased hereunder as security,
Landlord shall so notify Tenant.
21. ENTRY BY LANDLORD Landlord reserves, and shall during normal business
hours have, the right to enter the Premises to inspect them; to perform any
services to be provided by Landlord hereunder; to submit the Premises to
prospective purchasers, mortgagers or tenants; to post notices of
nonresponsibility; and to alter, improve or repair the Premises and any portion
of the Complex, all without abatement of rent; and may erect scaffolding and
other necessary structures in or through the Premises where reasonably required
by the character of the work to be performed; provided, however, that the
business of Tenant shall be interfered with to the least extent that is
reasonably practical. For each of the foregoing purposes, Landlord shall at all
times have and retain a key with which to unlock all of the doors in an
emergency in order to obtain entry to the Premises, and any entry to the
Premises obtained by Landlord by any of said means, or otherwise, shall not
under any circumstances be construed or deemed to be a forcible or unlawful
entry into or a detainer of the Premises or an eviction, actual or constructive,
of Tenant from the Premises or any portion thereof. Landlord shall also have the
right at any time to change the arrangement or location of entrances or
passageways, doors and doorways, and corridors, elevators, stairs, toilets or
other public parts of the Complex and to change the name, number or designation
by which the Complex is commonly known, and none of the foregoing shall be
deemed an actual or constructive eviction of Tenant, or shall entitle Tenant to
any reduction of rent hereunder, and no such changes shall unreasonably
interfere with Tenant's use of or access to the building leased hereunder.
22. BANKRUPTCY AND DEFAULT The commencement of a bankruptcy action or
liquidation action or reorganization action or insolvency action or an
assignment of or by Tenant for the benefit of creditors, or any similar action
undertaken by Tenant, or the insolvency of Tenant, shall, at Landlord's option,
constitute a breach of this Lease by Tenant. If the trustee or receiver
appointed to serve during a bankruptcy, liquidation, reorganization, insolvency
or similar action elects to reject Tenant's unexpired Lease, the trustee or
receiver shall notify Landlord in writing of its election within thirty (30)
days after an order for relief in a liquidation action or within thirty (30)
days after the commencement of any action.
Within thirty (30) days after court approval of the assumption of this
Lease, the trustee or receiver shall cure (or provide adequate assurance to the
reasonable satisfaction of Landlord that the trustee or receiver shall cure) any
and all previous defaults under the unexpired Lease and shall compensate
Landlord for all actual pecuniary loss and shall provide adequate assurance of
future performance under said Lease to the reasonable satisfaction of Landlord.
Adequate assurance of future performance, as used herein, includes, but shall
not be limited to: (i) assurance of source and payment of rent, and other
consideration due under this Lease; (ii) assurance that the assumption or
assignment of this Lease will not breach substantially any provision, such as
radius, location, use, or exclusivity provision, in any agreement relating to
the above described Premises.
Nothing contained in this section shall affect the existing right of
Landlord to refuse to accept an assignment upon commencement of or in connection
with a bankruptcy, liquidation, reorganization or insolvency action or an
assignment of Tenant for the benefit of creditors or other similar act. Nothing
contained in this Lease shall be construed as giving or granting or creating an
equity in the demised Premises to Tenant. In no event shall the leasehold estate
under this Lease, or any interest therein, be
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assigned by voluntary or involuntary bankruptcy proceeding without the prior
written consent of Landlord. In no event shall this Lease or any rights or
privileges hereunder be an asset of Tenant under any bankruptcy, insolvency or
reorganization proceedings.
The failure to perform or honor any covenant, condition or
representation made under this Lease shall constitute a default hereunder by
Tenant upon expiration of the appropriate grace period hereinafter provided.
Tenant shall have a period of five (5) days from the date of written notice from
Landlord within which to cure any default in the payment of rental or
adjustments thereto. Tenant shall have a period of twenty (20) days from the
date of written notice from Landlord within which to commence to cure any other
default under this Lease and Tenant shall diligently prosecute the cure to
completion. Upon an uncured default of this Lease by Tenant, Landlord shall have
the following rights and remedies in addition to any other rights or remedies
available to Landlord at law or in equity:
(a) The rights and remedies provided for by California Civil Code
Section 1951.2, including but not limited to, recovery of the worth at the time
of award of the amount by which the unpaid rent for the balance of the term
after the time of award exceeds the amount of rental loss for the same period
that Tenant proves could be reasonably avoided, as computed pursuant to
subsection (b) of said Section 1951.2. Any proof by Tenant under subparagraphs
(2) and (3) of Section 1951.2 of the California Civil Code of the amount of
rental loss that could be reasonably avoided shall be made in the following
manner: Landlord and Tenant shall each select a licensed real estate broker in
the business of renting property of the same type and use as the Premises and in
the same geographic vicinity. Such two real estate brokers shall select a third
licensed real estate broker, and the three licensed real estate brokers so
selected shall determine the amount of the rental loss that could be reasonably
avoided from the balance of the term of this Lease after the time of award. The
decision of the majority of said licensed real estate brokers shall be final and
binding upon the parties hereto.
(b) The rights and remedies provided by California Civil Code which
allows Landlord to continue the Lease in effect and to enforce all of its rights
and remedies under this Lease, including the right to recover rent as it becomes
due, for so long as Landlord does not terminate Tenant's right to possession;
acts of maintenance or preservation, efforts to relet the Premises, or the
appointment of a receiver upon Landlord's initiative to protect its interest
under this Lease shall not constitute a termination of Tenant's right to
possession.
(c) The right to terminate this Lease by giving notice to Tenant in
accordance with applicable law.
(d) The right and power, as attorney-in-fact for Tenant, to enter the
Premises and remove therefrom all persons and property, to store such property
in a public warehouse or elsewhere at the cost of and for the account of Tenant
and to sell such property and apply such proceeds therefrom pursuant to
applicable California law. Landlord, as attorney-in-fact for Tenant, may from
time to time sublet the Premises or any part thereof for such term or terms
(which may extend beyond the term of this Lease) and at such rent and such other
terms as Landlord in its sole discretion may deem advisable, with the right to
make alterations and repairs to the Premises. Upon each subletting, (i) Tenant
shall be immediately liable to pay Landlord, in addition to indebtedness other
than rent due hereunder, the cost of such subletting, including, but not limited
to, reasonable attorney's fees, and any real estate commissions actually paid,
and the cost of such alterations and repairs incurred by Landlord and the
amount, if any, by which the rent hereunder for the period of such subletting
(to the extent such period does not exceed the term hereof) exceeds the amount
to be paid as rent for the Premises for such period or (ii) at the option of
Landlord, rents received from such subletting shall be applied first to payment
of indebtedness other than rent due hereunder from Tenant to Landlord; second,
to the payment of any costs of such subletting and of such alterations and
repairs; third to payment of rent due and unpaid hereunder; and the residue, if
any, shall be held by Landlord and applied in payment of future rent as the same
becomes due hereunder. If Tenant has been credited with any rent to be received
by such subletting under option (i) and such rent shall not be promptly paid to
Landlord by the subtenant(s), or if such rentals received from such subletting
under option (ii) during any month be less than that to be paid during that
month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord.
Such deficiency shall be calculated and paid monthly. For all purposes set forth
in this subparagraph (d), Landlord is hereby irrevocably appointed
attorney-in-fact for Tenant, with power of substitution. No taking possession of
the Premises by Landlord, as attorney-in-fact for Tenant, shall be construed as
an election on its part to terminate this Lease unless a written notice of such
intention be given to Tenant. Notwithstanding any such subletting without
termination, Landlord may at any time hereafter elect to terminate this Lease
for such previous breach.
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(e) The right to have a receiver appointed for Tenant upon application
by Landlord, to take possession of the Premises and to apply any rental
collected from the Premises and to exercise all other rights and remedies
granted to Landlord as attorney-in-fact for Tenant pursuant to subparagraph (d)
above.
23. ABANDONMENT Tenant shall not vacate or abandon the Premises at any time
during the term of this Lease; and if Tenant shall abandon, vacate or surrender
said Premises, or be dispossessed by the process of law, or otherwise, any
personal property belonging to Tenant and left on the Premises shall be deemed
to be abandoned, at the option of Landlord, except such property as may be
mortgaged to Landlord.
24. DESTRUCTION
In the event the Premises are damaged or destroyed in whole or in part
from any cause, Landlord shall, within fifteen (15) days of the event of such
damage or destruction, notify Tenant in writing as to the approximate length of
time necessary for Landlord to reconstruct the Premises to substantially its
former condition. If such estimate exceeds one hundred eighty (180) days from
the date of damage or destruction, Tenant shall have the option, within ten (10)
days of receipt of Landlord's notice, to terminate this Lease. If Tenant does
not exercise its option to terminate, or if Tenant is not entitled to terminate
under this paragraph, Landlord shall promptly, at its sole expense, rebuild or
restore the Premises to substantially the condition existing prior to the date
of damage or destruction. Tenant shall be entitled to a reduction in rent while
such repair is being made in the proportion that the area of the Premises
rendered untenantable by such damage bears to the total area of the Premises. If
Landlord does not complete the rebuilding or restoration within one hundred
eighty (180) days following the date of destruction (such period of time to be
extended for delays caused by the fault or neglect of Tenant or because of Acts
of God, acts of public agencies, labor disputes, strikes, fires, freight
embargoes, rainy or stormy weather, inability to obtain materials, supplies or
fuels), then Tenant shall have the right to terminate this Lease by giving
fifteen (15) days prior written notice to Landlord. Notwithstanding anything
herein to the contrary, Landlord's obligation to rebuild or restore shall be
limited to the building and interior improvements constructed by Landlord as
they existed as of the commencement date of the Lease and the initial Tenant
Improvements installed at the commencement of the term, but shall not include
restoration of Tenant's trade fixtures, equipment, merchandise or any subsequent
improvements, alterations or additions made by Tenant to the Premises, which
Tenant shall forthwith replace or fully repair at Tenant's sole cost and expense
provided this Lease is not canceled according to the provisions above. Unless
this Lease is terminated pursuant to the foregoing provisions, this Lease shall
remain in full force and erect. Tenant hereby expressly waives the provisions of
Section 1932, Subdivision 2, and Section 1933, Subdivision 4 of the California
Civil Code.
Notwithstanding anything to the contrary set forth above, in the event
the damage or destruction of the Premises (i) occurs during the last two years
of the term (unless any applicable extension option has been exercised) and (ii)
has rendered at least 33% of the Premises unusable by Tenant, Landlord shall
have the option during the aforementioned fifteen (15) day period to elect not
to rebuild the Premises by so notifying Tenant or to elect to terminate this
Lease by so notifying Tenant.
25. EMINENT DOMAIN If all or any part of the Premises shall be taken by any
public or quasi-public authority under the power of eminent domain or conveyance
in lieu thereof, this Lease shall terminate as to any portion of the Premises so
taken or conveyed on the date when title vests in the condemnor, and Landlord
shall be entitled to any and all payment, income, rent, award or any interest
therein whatsoever which may be paid or made in connection with such taking or
conveyance, and Tenant shall have no claim against Landlord or otherwise for the
value of any unexpired term of this Lease. Notwithstanding the foregoing
paragraph, any compensation specifically awarded Tenant for loss of business,
Tenant's personal property, moving cost or loss of goodwill, shall be and remain
the property of Tenant.
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If (i) any action or proceeding is commenced for such taking of the
Premises or any part thereof, or if Landlord is advised in writing by any entity
or body having the right or power of condemnation of its intention to condemn
the Premises or any portion thereof, or (ii) any of the foregoing events occur
with respect to the taking of any space in the Complex not leased hereby, or if
any such space is so taken or conveyed in lieu of such taking and Landlord shall
decide to discontinue the use and operation of the Complex, or decide to
demolish, alter or rebuild the Complex, then in any of such events Landlord
shall have the right to terminate this Lease by giving Tenant written notice
thereof within sixty (60) days of the date of receipt of said written advice, or
commencement of said action or proceeding, or taking or conveyance, which
termination shall take place as of the first to occur of the last day of the
calendar month next following the month in which such notice is given or the
date on which title to the Premises shall vest in the condemnor.
In the event of such a partial taking or conveyance of the Premises, if
the portion of the Premises taken or conveyed is so substantial that the Tenant
can no longer reasonably conduct its business, Tenant shall have the privilege
of terminating this Lease within sixty (60) days from the date of such taking or
conveyance, upon written notice to Landlord of its intention so to do, and upon
giving of such notice this Lease shall terminate on the last day of the calendar
month next following the month in which such notice is given, upon payment by
Tenant of the rent from the date of such taking or conveyance to the date of
termination.
If a portion of the Premises be taken by condemnation or conveyance in
lieu thereof and neither Landlord nor Tenant shall terminate this Lease as
provided herein, this Lease shall continue in full force and effect as to the
part of the Premises not so taken or conveyed, and the rent herein shall be
apportioned as of the date of such taking or conveyance so that thereafter the
rent to be paid by Tenant shall be in the ratio that the area of the portion of
the Premises not so taken or conveyed bears to the total area of the Premises
prior to such taking.
26. SALE OR CONVEYANCE BY LANDLORD In the event of a sale or conveyance of
the Complex or any interest therein, by any owner of the reversion then
constituting Landlord, the transferor shall thereby be released from any
liability thereafter arising upon any of the terms, covenants or conditions
(express or implied) herein contained in favor of Tenant, and in such event,
insofar as such transfer is concerned, Tenant agrees to look solely to the
responsibility of the successor in interest of such transferor in and to the
Complex and this Lease. This Lease shall not be affected by any such sale or
conveyance, and Tenant agrees to attorn to the successor in interest of such
transferor.
27. ATTORNMENT TO LENDER OR THIRD PARTY In the event the interest of
Landlord in the land and buildings in which the leased Premises are located
(whether such interest of Landlord is a fee title interest or a leasehold
interest) is encumbered by deed of trust, and such interest is acquired by the
lender or any third party through judicial foreclosure or by exercise of a power
of sale at private trustee's foreclosure sale, Tenant hereby agrees to attorn to
the purchaser at any such foreclosure sale and to recognize such purchaser as
the Landlord under this Lease. In the event the lien of the deed of trust
securing the loan from a Lender to Landlord is prior and paramount to the lease,
this Lease shall nonetheless continue in full force and effect for the remainder
of the unexpired term hereof, at the same rental herein reserved and upon all
the other terms, conditions and covenants herein contained.
28. HOLDING OVER Any holding over by Tenant after expiration or other
termination of the term of this Lease with the written consent of Landlord
delivered to Tenant shall not constitute a renewal or extension of the Lease or
give Tenant any rights in or to the leased Premises except as expressly provided
in this Lease. Any holding over after the expiration or other termination of the
term of this lease, with the consent of Landlord, shall be construed to be a
tenancy from month to month, on the same terms and conditions herein specified
insofar as applicable except that the monthly Basic Rent shall be increased to
an amount equal to one hundred twenty-five (125%) percent of the monthly Basic
Rent required during the last month of the Lease term. Tenant shall have the
right, upon one year's prior written notice to Landlord, to extend the lease
termination date for this Lease up to 6 months beyond the lease expiration date
provided. The Basic Rent during this extended period shall be 125% of the
monthly Basic Rent then in effect for the month immediately prior to the Lease
expiration.
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29. CERTIFICATE OF ESTOPPEL Tenant shall at any time upon not less than ten
(10) days' prior written notice from Landlord execute, acknowledge and deliver
to Landlord a statement in writing (i) certifying that this Lease is unmodified
and in full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full force
and effect) and the date to which the rent and other charges are paid in
advance, if any, and (ii) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder, or specifying
such defaults, if any, are claimed. Any such statement may be conclusively
relied upon by any prospective purchaser or encumbrancer of the Premises.
Tenant's failure to deliver such statement within such time shall be conclusive
upon Tenant that this Lease is in full force and effect, without modifications
except as may be represented by Landlord; that there are no uncured defaults in
Landlord's performance, and that not more than one month's rent has been paid in
advance. If requested by Tenant, Landlord shall issue Tenant a certificate of
Estoppel stating whether or not Tenant is in compliance with the Lease and is
current on rental payments.
30. CONSTRUCTION CHANGES Landlord does not guarantee the accuracy of any
drawings supplied to Tenant and verification of the accuracy of such drawings
rests with Tenant.
31. RIGHT OF LANDLORD TO PERFORM All terms, covenants and conditions of this
Lease to be performed or observed by Tenant shall be performed or observed by
Tenant at Tenant's sole cost and expense and without any reduction of rent. If
Tenant shall fail to pay any sum of money, or other rent, required to be paid by
it hereunder or shall fail to perform any other term or covenant hereunder on
its part to be performed, and such failure shall continue for five (5) days
after written notice thereof by Landlord, Landlord, without waiving or releasing
Tenant from any obligation of Tenant hereunder, may, but shall not be obligated
to, make any such payment or perform any such other term or covenant on Tenant's
part to be performed. All sums so paid by Landlord and all necessary costs of
such performance by Landlord together with interest thereon at the rate of the
prime rate of interest per annum as quoted by the Bank of America from the date
of such payment of performance by Landlord, shall be paid (and Tenant covenants
to make such payment) to Landlord on demand by Landlord, and Landlord shall have
(in addition to any other right or remedy of Landlord) the same rights and
remedies in the event of non-payment by Tenant as in the case of failure by
Tenant in the payment of rent hereunder.
32. ATTORNEYS FEES
(A) In the event that Landlord should bring suit for the possession of
the Premises, for the recovery of any sum due under this Lease, or because of
the breach of any provision of this Lease, or for any other relief against
Tenant hereunder, or in the event that Tenant should bring suit against Landlord
for the recovery of any sums due hereunder or because of the breach of any
provision of this Lease or for any other relief against Landlord hereunder, then
all costs and expenses, including reasonable attorney's fees, incurred by the
prevailing party therein shall be paid by the other party, which obligation on
the part of the other party shall be deemed to have accrued on the date of the
commencement of such action and shall be enforceable whether or not the action
is prosecuted to judgement.
(B) Should Landlord be named as a defendant in any suit brought against
Tenant in connection with or arising out of Tenant's occupancy hereunder, Tenant
shall pay to Landlord its costs and expenses incurred in such suit, including a
reasonable attorney's fee, except to the extent Landlord's cost and expense were
caused by the negligence or willful misconduct of Landlord, its agents or
employees.
33. WAIVER The waiver by either party of the other party's failure to
perform or observe any term, covenant or condition herein contained to be
performed or observed by such waiving party shall not be deemed to be a waiver
of such term, covenant or condition or of any subsequent failure of the party
failing to perform or observe the same or any other such term, covenant or
condition therein contained, and no custom or practice which may develop between
the parties hereto during the term hereof shall be deemed a waiver of, or in any
way affect, the right of either party to insist upon performance and observance
by the other party in strict accordance with the terms hereof.
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34. NOTICES All notices, demands, requests, advices or designations which
may be or are required to be given by either party to the other hereunder shall
be in writing. All notices, demands, requests, advices or designations by
Landlord to Tenant shall be sufficiently given, made or delivered if personally
served on Tenant or if sent by United States certified or registered mail,
postage prepaid, addressed to Tenant at Intuit Inc., 0000 Xxxxxx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000, Attn: General Counsel. All notices, demands,
requests, advices or designations by Tenant to Landlord shall be sent by United
States certified or registered mail, postage prepaid, addressed to Landlord at
its offices at 0000 Xxx Xxxxxx, Xxxx Xxxx, XX 00000.
Each notice, request, demand advice or designation referred to in this paragraph
shall be deemed received on the date of the personal service or mailing thereof
in the manner herein provided, as the case may be.
35. EXAMINATION OF LEASE Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option for a lease,
and this instrument is not effective as a lease or otherwise until its execution
and delivery by both Landlord and Tenant. Landlord and Tenant mutually intend
that neither shall have any binding contractual obligations to the other with
respect to the matters referred to herein unless and until this instrument has
been fully executed by both parties.
36. DEFAULT BY LANDLORD Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord within a reasonable time, but
in no event earlier than thirty (30) days after written notice by Tenant to
Landlord and to the holder of any first mortgage or deed of trust covering the
Premises whose name and address shall have heretofore been furnished to Tenant
in writing, specifying wherein Landlord has failed to perform such obligations;
provided, however, that if the nature of Landlord's obligations is such than
more than thirty (30) days are required for performance, then Landlord shall not
be in default if Landlord commences performance within such thirty (30) day
period and thereafter diligently prosecutes the same to completion.
Notwithstanding anything to the contrary set forth above in this paragraph 36,
Landlord and Tenant agree that under certain "emergency circumstances", Tenant
shall have the right to perform obligations otherwise required of Landlord
without the necessity of providing Landlord (and any mortgagee) with such thirty
(30) day notice and opportunity to cure. Under such "emergency circumstances",
Tenant shall use its good faith reasonable judgement in determining a shorter
notice period for response by Landlord or determining that the matter at hand
must be resolved immediately such that notice can only be given after the fact.
For the purposes hereof, "emergency circumstances" shall mean (i) any hazardous
situation that poses a threat of damage, destruction or injury to any person or
property of a material nature or otherwise threatens the safety of employees
and/or visitors to the Premises or (ii) any other circumstance that involves a
substantial interference with the operations of Tenant's business enterprise in
the Premises, including without limitation the launching of new software
products or revisions thereto (especially to correct existing problems which
must be addressed immediately) to enable customers to perform needed financial
and tax-related functions, which is of special concern during the months
preceding April 15th of each calendar year.
37. CORPORATE AUTHORITY
If Tenant is a corporation (or a partnership) each individual executing
this Lease on behalf of said corporation (or partnership) represents and
warrants that he is duly authorized to execute and deliver this Lease on behalf
of said corporation (or partnership) in accordance with the by-laws of said
corporation (or partnership in accordance with the partnership agreement) and
that this Lease is binding upon said corporation (or partnership) in accordance
with its terms. If Tenant is a corporation, Tenant shall, within thirty (30)
days of written request by Landlord after execution of this Lease, deliver to
Landlord a certified copy of the resolution of the Board of Directors of said
corporation authorizing or ratifying the execution of this Lease.
38. BASIC RENT ADJUSTMENT (deleted)
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39. LIMITATION OF LIABILITY In consideration of the benefits accruing
hereunder, Tenant and all successors and assigns covenant and agree
that, in the event of any actual or alleged failure, breach or default
hereunder by Landlord:
(i) the sole and exclusive remedy shall be against Landlord and
Landlord's assets;
(ii) no partner of Landlord shall be sued or named as a party in any
suit or action (except as may be necessary to secure
jurisdiction of the partnership)
(iii) no service of process shall be made against any partner of
Landlord (except as may be necessary to secure jurisdiction of
the partnership)
(iv) no partner of Landlord shall be required to answer or otherwise
plead to any service of process;
(v) no judgement shall be taken against any partner of Landlord;
(vi) any judgement taken against any partner of Landlord may be
vacated and set aside at any time without hearing;
(vii) no writ of execution will ever be levied against the assets of
any partner of Landlord;
(viii) these covenants and agreements are enforceable both by Landlord
and also by any partner of Landlord.
(ix) The term, "Landlord", as used in this section, shall mean only
the owner or owners from time to time of the fee title or the
tenant's interest under a ground lease of the land described in
Exhibit "B", and in the event of any transfer of such title or
interest, Landlord herein named (and in case of any subsequent
transfers the then grantor) shall be relieved from and after the
date of such transfer of all liability as respects Landlord's
obligations thereafter to be performed, provided that any funds
in the hands of Landlord or the then grantor at the time of such
transfer, in which Tenant has an interest, shall be delivered to
the grantee. Similarly, the obligations contained in this Lease
to be performed by Landlord shall be binding on Landlord's
successors and assigns only during their respective periods of
ownership. Tenant agrees that each of the foregoing covenants
and agreements shall be applicable to any covenant or agreement
either expressly contained in this Lease or imposed by statute
or at common law.
40. BROKERS Tenant warrants that it had dealing with only the following real
estate brokers or agents in connection with the negotiation of this Lease: NONE
and that it knows of no other real estate broker or agent who is entitled to a
commission in connection with this Lease.
41. SIGNS No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed, printed or affixed on or to any part of the outside of the
Premises or any exterior windows of the Premises without the written consent of
Landlord first had and obtained and Landlord shall have the right to remove any
such sign, placard, picture, advertisement, name or notice without notice to and
at the expense of Tenant. If Tenant is allowed to print or affix or in any way
place a sign in, on, or about the Premises, then upon expiration or other sooner
termination of this Lease, Tenant at Tenant's sole cost and expense shall both
remove such sign and repair all damage in such manner as to restore all aspects
of the appearance of the Premises to the condition prior to the placement of
said sign.
All approved signs or lettering on outside doors shall be printed,
painted, affixed or inscribed at the expense of Tenant by a person approved of
by Landlord. Tenant shall not place anything or allow anything to be placed near
the glass of any window, door partition or wall which may appear unsightly from
outside the Premises.
Subject to the approval of the City of Mountain View and Landlord, whose
consent shall not be unreasonably withheld or delayed, Tenant, at Tenant's sole
cost and expense, shall have the right to install (i) a monument sign located at
the main driveway entrance to the Complex; (ii) suitable building signage
adjacent to the Premises and (iii) suitable directional signage in the common
areas and within the Premises leased hereunder. At Tenant's request, Landlord
shall promptly remove all prior tenant signage from the Premises and any common
areas adjacent thereto and said removal shall not be at Tenant's expense.
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42. FINANCIAL STATEMENTS In the event Tenant tenders to Landlord any
information on the financial stability, credit worthiness or ability of the
Tenant to pay the rent due and owing under the Lease, then Landlord shall be
entitled to rely upon the information provided in determining whether or not to
enter into this Lease Agreement with Tenant and Tenant hereby represents and
warrants to Landlord the following: (i) That all documents provided by Tenant to
Landlord are true and correct copies of the original; and (ii) Tenant has not
withheld any information from Landlord which is material to Tenant's credit
worthiness, financial condition or ability to pay the rent; and (iii) all
information supplied by Tenant to Landlord is true, correct and accurate in
every material aspect; and (iv) no part of the information supplied by Tenant to
Landlord contains misleading or fraudulent statements as to any material matter.
A default under this paragraph shall be a non-curable default on behalf
of Tenant and Landlord shall be entitled to pursue any right or remedy available
to Landlord under the terms of this Lease or available to Landlord under the
laws of the State of California.
43. HAZARDOUS MATERIALS
A. As used herein, the term "Hazardous Material" shall mean any
substance or material which has been determined by any state, federal or local
governmental authority to be capable of posing a risk of injury to health,
safety or property including all of those materials and substances designated or
defined as "hazardous" or "toxic" by (i) the Environmental Protection Agency,
the California Water Quality Control Board, the Department of Labor, the
California Department of Industrial Relations, the Department of Transportation,
the Department of Agriculture, the Consumer Product Safety Commission, the
Department of Health and Human Services, the Food and Drug Agency or any other
governmental agency now or hereafter authorized to regulate materials and
substances in the environment, or by (ii) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. 9601 et seq., as
amended; the Hazardous Materials Transportation Act, 49 U.S.C. 1801, et seq., as
amended; the Resource Conservation and Recovery Act, 42 U.S.C. 6901, et seq., as
amended; the Hazardous Waste Control Law, California Health & Safety Code 25100
et seq., as amended; Sections 66680 through 66685 of Title 22 of the California
Administration Code, Division 4, Chapter 30, as amended; and in the regulations
adopted and publications promulgated pursuant to said laws.
B. Tenant shall not cause or permit any Hazardous Material to be
improperly or illegally used, stored, discharged, released or disposed of in,
from, under or about the Premises or the Complex, or any other land or
improvements in the vicinity of the Premises or the Complex. Without limiting
the generality of the foregoing, Tenant, at its sole cost, shall comply with all
laws relating to Hazardous Materials. If the presence of Hazardous Materials on
the Premises or the Complex caused or permitted by Tenant results in
contamination of the Premises or the Complex or any soil in or about the
Premises or the Complex, Tenant, as its expense shall promptly take all actions
necessary to return the Premises or the Complex to the condition existing prior
to the appearance of such Hazardous Material. The termination of this Lease
shall not terminate or reduce the liability or obligations of Tenant under this
Section, or as may be required by law, to clean up, monitor or remove any
Hazardous Materials from the Premises or the Complex.
Tenant shall defend, hold harmless and indemnify Landlord and its agents
and employees with respect to all claims, damages and liabilities arising out of
or in connection with any Hazardous Material used, stored, discharged, released
or disposed of in, from, under or about the Premises or the Complex, where said
Hazardous Material is or was attributable to the activities of Tenant, its
agents or contractors during the Lease term and whether or not Tenant had
knowledge of such Hazardous Material, including, without limitation, any cost of
monitoring or removal, any reduction in the fair market value or fair rental
value of the Premises or the Complex and any loss, claim or demand by any third
person or entity relating to bodily injury or damage to real or personal
property.
Tenant shall not suffer any lien to be recorded against the Premises or
the Complex as a consequence of a Hazardous Material, including any so called
state, federal or local "super fund" lien related to the "clean up" of a
Hazardous Material in or about the Premises, where said Hazardous Material is or
was attributable to the activities of Tenant.
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C. In the event Hazardous Materials are discovered in or about the
Premises or the Complex, and Landlord has substantial reason to believe that
Tenant was responsible for the presence of the Hazardous Material, then Landlord
shall have the right to appoint a consultant, at Tenant's expense, to conduct an
investigation to determine whether Hazardous Materials are located in or about
the Premises or the Complex and to determine the corrective measures, if any,
required to remove such Hazardous Materials. Tenant, at its expense, shall
comply with all recommendations of the consultant, as required by law. To the
extent it is determined that Tenant was not responsible for the presence of the
Hazardous Materials, then Landlord shall reimburse Tenant for any costs incurred
by Landlord and paid by Tenant under the terms of this paragraph 43.C.
Tenant shall immediately notify Landlord of any inquiry, test,
investigation or enforcement proceeding by or against Tenant or the Premises or
the Complex concerning a Hazardous Material. Tenant acknowledges that Landlord,
as the owner of the Property, at its election, shall have the sole right, at
Tenant's expense, to negotiate, defend, approve and appeal any action taken or
order issued with regard to a Hazardous Material by an applicable governmental
authority. Provided Tenant is not in default under the terms of this Lease,
Tenant shall likewise have the right to participate in any negotiations,
approvals or appeals of any actions taken or orders issued with regard to the
Hazardous Material and Landlord shall not have the right to bind Tenant in said
actions or orders.
Landlord shall defend, hold harmless and indemnify Tenant and its agents
and employees with respect to all claims, damages and liabilities arising out of
or in connection with any Hazardous Material used, stored, discharged, released
or disposed of in, from, under or about the Premises or the Complex, where said
Hazardous Material is or was not attributable to the activities of Tenant, its
agents or contractors during the Lease term and whether or not Tenant had
knowledge of such Hazardous Material including, without limitation, any cost of
monitoring or removal, any reduction in the fair market value or fair rental
value of the Premises or the Complex and any loss, claim or demand by any third
person or entity relating to bodily injury or damage to real or personal
property.
D. It shall not be unreasonable for Landlord to withhold its consent to
any proposed assignment or subletting if (i) the proposed assignee's or
subtenant's anticipated use of the Premises involves the storage, use or
disposal of Hazardous Material; (ii) if the proposed assignee or subtenant has
been required by any prior landlord, lender or governmental authority to "clean
up" Hazardous Material; (iii) if the proposed assignee or subtenant is subject
to investigation or enforcement order or proceeding by any governmental
authority in connection with the use, disposal or storage of a Hazardous
Material.
E. Tenant shall surrender the Premises to Landlord, upon the expiration
or earlier termination of the Lease, free of Hazardous Materials which are or
were attributable to Tenant. If Tenant fails to so surrender the Premises,
Tenant shall indemnify and hold Landlord harmless from all damages resulting
from Tenant's failure to surrender the Premises as required by this paragraph,
including, without limitation, any claims or damages in connection with the
condition of the Premises including, without limitation, damages occasioned by
the inability to relet the Premises or a reduction in the fair market and/or
rental value of the Premises or the Complex by reason of the existence of any
Hazardous Materials, which are or were attributable to the activities of Tenant,
in or around the Premises or the Complex. Notwithstanding any provision to the
contrary in this Lease, if any action is required to be taken by a governmental
authority to clean-up, monitor or remove any Hazardous Materials, which are or
were attributable to the activities of Tenant, from the Premises or the Complex
and such action is not completed prior to the expiration or earlier termination
of the Lease, then at Landlord's election (i) this Lease shall be deemed renewed
for a term commencing on the expiration date of this Lease and ending on the
date the clean-up, monitoring or removal procedure is completed (provided,
however, that the total term of this Lease shall not be longer than 34 years and
11 months); or (ii) Tenant shall be deemed to have impermissibly held over and
Landlord shall be entitled to all damages directly or indirectly incurred in
connection with such holding over, including without limitation damages
occasioned by the inability to relet the Premises or a reduction in the fair
market and/or fair rental value of the Premises or the Complex by reason of the
existence of the Hazardous Material.
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F. Upon the Lease Commencement Date, Tenant shall provide to Landlord a
complete list of all chemicals, toxic waste or Hazardous Materials employed by
Tenant within the Premises. Throughout the terms of the Lease, Tenant shall
continue to update this list of chemicals, contaminants and Hazardous Materials.
Landlord hereby warrants Tenant that there is no asbestos in the building.
44. MISCELLANEOUS AND GENERAL PROVISIONS
a. Tenant shall not, without the written consent of Landlord, use the
name of the building for any purpose other than as the address of the
business conducted by Tenant in the Premises.
b. This Lease shall in all respects be governed by and construed in
accordance with the laws of the State of California. If any provision of
this Lease shall be invalid, unenforceable or ineffective for any reason
whatsoever, all other provisions hereof shall be and remain in full
force and effect.
c. The term "Premises" includes the space leased hereby and any
improvements now or hereafter installed therein or attached thereto. The
term "Landlord" or any pronoun used in place thereof includes the plural
as well as the singular and the successors and assigns of Landlord. The
term "Tenant" or any pronoun used in place thereof includes the plural
as well as the singular and individuals, firms, associations,
partnerships and corporations, and their and each of their respective
heirs, executors, administrators, successors and permitted assigns,
according to the context hereof, and the provisions of this Lease shall
inure to the benefit of and bind such heirs, executors, administrators,
successors and permitted assigns.
The term "person" includes the plural as well as the singular and
individuals, firms, associations, partnerships and corporations. Words
used in any gender include other genders. If there be more than one
Tenant the obligations of Tenant hereunder are joint and several. The
paragraph headings of this Lease are for convenience of reference only
and shall have no effect upon the construction or interpretation of any
provision hereof.
d. Time is of the essence of this Lease and of each and all of its
provisions.
e. At the expiration or earlier termination of this Lease, Tenant shall
execute, acknowledge and deliver to Landlord, within ten (10) days after
written demand from Landlord to Tenant, any quitclaim deed or other
document required by any reputable title company, licensed to operate in
the State of California, to remove the cloud or encumbrance created by
this Lease from the real property of which Tenant's Premises are a part.
f. This instrument along with any exhibits and attachments hereto
constitutes the entire agreement between Landlord and Tenant relative to
the Premises and this agreement and the exhibits and attachments may be
altered, amended or revoked only by an instrument in writing signed by
both Landlord and Tenant. Landlord and Tenant hereby agree that all
prior or contemporaneous oral agreements between and among themselves
and the agents or representatives relative to the leasing of the
Premises are merged in or revoked by this agreement.
g. Neither Landlord nor Tenant shall record this Lease or a short form
memorandum hereof without the consent of the other.
h. Tenant further agrees to execute any amendments required by a lender
to enable Landlord to obtain financing, so long as Tenant's rights
hereunder are not substantially affected.
i. Clauses, plats and riders, if any, signed by Landlord and Tenant and
endorsed on or affixed to this Lease are a part hereof.
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j. Tenant covenants and agrees that no diminution or shutting off of
light, air or view by any structure which may be hereafter erected
(whether or not by Landlord) shall in any way affect this Lease, entitle
Tenant to any reduction of rent hereunder or result in any liability of
Landlord to Tenant.
k. Landlord covenants with Tenant that upon Tenant paying the rent and
all other charges required under this Lease and performing all of
Tenant's covenants and agreements contained herein, Tenant shall
peacefully have, hold and enjoy the Premises, subject to all of the
terms and conditions of this Lease.
45. OPTIONS TO EXTEND
Provided Tenant is not in default under any of the terms, covenants or
conditions of this Lease and subject to the terms and conditions set forth
hereafter, Tenant is hereby granted the option to extend the term of the Lease
for the Premises leased hereunder for two consecutive five year periods:
a) Tenant shall notify Landlord in writing of Tenant's exercise of its
option to extend the Lease no less than 12 months prior to the lease expiration
date.
b) The Lease shall be extended for a period of five years commencing
upon the day after the Lease expiration date and shall terminate five years
later.
c) The monthly Basic Rent during each of the extended terms shall be the
Fair Market Rate with interim adjustment (if any) then being charged for
comparable space of comparable quality in the immediate Mountain View/Shoreline
area, but in no event shall the monthly Basic Rent be less than the monthly
Basic Rent for the last full month immediately preceding the commencement date
of the extended term.
d) The then current payment for Additional Rent described in paragraph
4D of the Lease shall continue to be adjusted according to paragraph 4D of the
Lease.
e) This option to extend can be exercised solely by Tenant for its sole
use of the Premises (including any permitted subtenants (except for any entities
affiliated with Tenant) which in total do not exceed 25% of the building) and
may not be transferred or assigned to any sublessee or other party, nor may this
option be exercised by Tenant if more than 25% of the building is then subleased
to a party other than Tenant or Tenant's affiliates.
46. FAIR MARKET RATE
The fair market rate shall be defined as the prevailing market rate with
interim adjustments (if any) then charged for comparable space of comparable
quality in the immediate Mountain View/Shoreline market area. Landlord and
Tenant shall attempt to agree in writing on such fair market rate. If Landlord
and Tenant do not agree on the fair market rate for the Premises by that date
which is one hundred fifty (150) days prior to the beginning of each extended
term, then Landlord and Tenant shall each select a licensed real estate broker
(the "Brokers") with a minimum five (5) years commercial leasing experience in
the Mountain View area to determine the fair market rate for the Premises. If
the Brokers are unable to agree as to the fair market rate by that date which is
one hundred twenty (120) days prior to the beginning of each extended term, then
the Brokers shall mutually select a third licensed real estate broker (the
"Arbitrator") who has the same minimum qualifications as the Brokers and who has
not previously represented either party. Each Broker shall submit to the
Arbitrator his or her determination of the fair market rate for the Premises,
and the support therefor, and the Arbitrator shall decide which Broker has most
accurately determined the fair market rate, which decision shall be final and
binding on both Landlord and Tenant. Landlord and Tenant shall each pay their
own Broker's fees and costs and shall each pay one-half (1/2) of the
Arbitrator's fees and costs.
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47. ACCEPTANCE AND SURRENDER OF PREMISES AND COST OF MAJOR REPAIRS
Notwithstanding anything in paragraphs 8 & 9 to the contrary, commencing
as of the date Landlord offers possession of the Premises to Tenant, an
independent inspection team shall be hired to make a thorough inspection of the
Premises. Tenant shall hire the inspectors subject to Landlord's reasonable
approval of the cost of the inspection and the inspector. Landlord shall pay for
the inspection. Said inspection shall be limited to and shall only include
roofs, elevators, HVAC systems, electrical systems (including lights and bulbs),
plumbing systems, locking mechanisms, exterior and roll-up doors, and glazing.
Tenant shall provide Landlord a copy of these reports. Landlord shall deliver
the buildings and all operating systems covered in the report to Tenant as of
the Lease Commencement Date referenced in Paragraph 2A above in a well
maintained condition and in good repair. Landlord shall be under no specific
obligation to upgrade any particular system and Tenant acknowledges that the
systems have been previously used. Landlord's repair of the referenced items
shall not affect the commencement date of the Lease so long as Tenant is able to
occupy and operate in the Premises without interference. Notwithstanding
anything in paragraph 7 to the contrary, Capital Expenses made by Landlord shall
not be included in the annual expenses of operation, management and maintenance
of the Building or Complex. For example, the replacement of an entire roof shall
not be deemed an expense of operation whereas the ongoing repair and maintenance
of a roof is deemed an operating expense. In addition to provisions of
paragraphs 4D and 7, if there is a single incident that requires a maintenance
expense up to $15,000, said expense shall be reimbursable by Tenant and shall be
included in the annual operating expenses. For single large maintenance expenses
between $15,000 and $20,000, such expense will be reimbursable by Tenant
(without interest) over three years with an equal amount charged per year. If a
single large maintenance expense is greater than $20,000, it shall be
reimbursable by Tenant over a 5 year period, in equal amounts reimbursable per
year.
Landlord shall lease the Premises to Tenant in an "as-is" condition, and
other than Landlord's repair obligation per this paragraph 47 and Landlord's
code compliance obligation per paragraph 17, all cost of construction including
demolition, architectural, drawings, permitting fees, etc, shall be paid by
Tenant with Landlord's contributions limited to those described in paragraph 9.
Notwithstanding anything herein to the contrary, all equipment associated with
the cafeteria (including but not limited to items such as ovens, ranges,
dishwashing equipment, walk-in coolers or freezers, etc.) shall be accepted by
Tenant in an AS-IS condition, and Landlord shall have no obligation whatsoever
with respect to the condition of this equipment.
48. CONSTRUCTION SUPERVISION. Landlord, at Landlord's sole cost and expense,
shall retain WSJ Properties Construction Division to supervise the improvements
made by Tenant's Contractor (if other than WSJ Properties) for Tenant's initial
built-out. Landlord shall approve all plans in a timely manner prior to
commencement of construction and copies of all permits and final signed-off
copies of permits shall be submitted to Landlord. Landlord shall also be named
as an additional insured on all general and subcontractor insurance policies and
shall receive lien releases from all subcontractors. In general, Landlord
requires the following:
1) The construction area must be kept clean and neat with interior
and exterior daily pick-up.
2) The construction may not unreasonably interfere with any other
tenants in the Complex.
3) Landlord shall receive copies of as-built drawings for the
improvements, including HVAC, electrical, plumbing, partitions,
reflected ceilings, finish schedules, millwork, etc. There shall
also be one reproducible set of drawings submitted to Landlord.
4) Landlord shall received a list of all finishes and suppliers.
5) ELECTRICAL
a) All electrical shall be in EMT with no M.C. Cable.
b) Any new panels and breakers to match existing and shall be
accurately labeled.
c) All fluorescent lighting shall be cool white or otherwise as
reasonably agreeable to both parties.
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6) HVAC
a) Zone boxes and controls shall match existing if available.
b) EMONDEMON meters shall be installed on all special air
conditioning units.
c) All thermostats shall be new and match existing if available.
d) Landlord shall receive a structural report for all new units
placed on the roof.
e) All roof patching shall be hot mopped not cold patched.
f) Upon completion of construction the HVAC Systems shall be air
balanced and all filters changed.
7) PLUMBING
Tenant shall not use plastic piping. All piping must be copper
galvanized or cast iron.
8) KEYS
Landlord shall be provided with the copies of any keys to
locking mechanisms for emergency purposes. Tenant shall use a
BEST lock system.
9) Tenant shall be responsible for meeting all applicable codes for
earthquake, energy, and handicap requirements directly related
to Tenant's interior improvements. Any contractor or
subcontractor must be licensed to do business in the State of
California. This Tenant responsibility shall be for all items
not defined as Landlord's responsibility in paragraph 17.
10) The general contractor and subcontractors shall use first class
construction practices and shall comply with reasonable
suggestions of the WSJ Properties Construction Supervisor.
49. CROSS DEFAULT
It is understood that Landlord and Tenant have entered into several
leases for premises in the vicinity of the Premises leased hereunder. Exhibit
"C" shows additional buildings for which Tenant has entered into leases with
Landlord. As a material part of the consideration for the execution of this
Lease by Landlord, it is agreed between Landlord and Tenant that a default under
this Lease (after any applicable notice and cure period has expired), or a
default under a lease by Tenant (after any applicable notice and cure period has
expired) for any building leased and shown on Exhibit "C" may, at the option of
Landlord, be considered a default under all leases by and between Landlord and
Tenant then in effect, in which event Landlord shall be entitled (but in no
event required) to apply all rights and remedies of Landlord under the terms of
one lease to all leases including, but not limited to, the right to terminate
one or all of said leases by reason of default under said Lease or hereunder.
50. RIGHT OF FIRST OFFER
Provided Tenant is not in default (beyond any applicable notice and cure
period) under any of the terms, covenants and conditions of this Lease,
beginning on the Commencement Date of this Lease and subject to the existing
rights of Sun Microsystems (the current tenant of the building), Landlord hereby
grants Tenant a Right of first Offer to lease the entire building located at
0000 Xxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx as shown on Exhibit D (and
hereinafter referred to as 2600 Xxxxx). Tenant's Right of first Offer shall be
upon and subject to the following terms and conditions:
a) Tenant's right to lease 2600 Xxxxx shall be the right to accept a
proposal by Landlord to lease 2600 Xxxxx, which proposal shall
include the date of availability and the terms under which Landlord
will lease the space to Tenant. The terms shall include the rent,
increases in rent, the term, the size of the premises, the tenant
improvement allowance (if any), and the like. Tenant shall have 30
calendar days in which to accept Landlord's proposal. In the event
Tenant accepts Landlord's proposal, then Landlord shall prepare a
lease substantially in the form hereof incorporating the terms of
Landlord's proposal and the same shall be executed by Landlord and
Tenant.
b) In the event Tenant does not accept the proposal by Landlord within
the time period specified above, then Landlord agrees that it will
not lease 2600 Xxxxx to another tenant on terms that are more
favorable than those proposed to Tenant without first offering the
more favorable terms to Tenant and allowing Tenant 10 business days
within which to accept the more favorable terms.
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c) In the event Tenant fails to accept the proposal from Landlord to
lease 2600 Xxxxx (and subject to b) above), then Landlord shall have
no further obligations to Tenant with respect to 2600 Xxxxx.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this Lease
as of the day and year first above written.
LANDLORD: TENANT:
CHARLESTON PROPERTIES, a INTUIT INC., a
California General Partnership Delaware Corporation
By /s/ [SIGNATURE ILLEGIBLE] By /s/ XXXX X. XXXXXXX
-------------------------------- ------------------------------------
Date: 4/30/99 Date: 4/30/99
----------------------------- ---------------------------------
APPROVED
Intuit Legal Dept.
Date April 30, 1999
-------------------
By /s/ XXXXXXX XXXXXXX
---------------------
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[FLOOR PLAN]
EXHIBIT A
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[FLOOR PLAN]
EXHIBIT B
29
[AREA MAP]
EXHIBIT C
30
[AREA MAP]
EXHIBIT D
