EXHIBIT 10.7
LEASE AMENDMENT NUMBER ONE to Lease dated March 10, 1999, between XXXXXXX
PROPERTIES, L.P., a California limited partnership, as Landlord, and Multilink
Technology Corporation, a California corporation, as Tenant, for the Premises
commonly known as 0000 Xxxxx Xxxx Xxxx., Xxxxx Xxxxxx, Xxxxxxxxxx 00000.
Effective April 23, 1999, the above-described Lease shall be modified as follows
for Tenant's expansion into Xxxxx 000 xxx Xxxxx 000:
TERM; The term for Suites 330 and 335 shall commence May 15, 1999, or when the
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improvements are substantially completed, whichever is earlier, and shall be
coterminous with the initial Garden Level space, which is September 30, 2000.
RENTABLE AREA. The rentable area shall include that portion of the 3/rd/ floor
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designated as Suite 330 (approximately 2,361 rentable square feet) and Suite
335 (approximately 2,635 rentable square feet) as shown cross hatched on the
attached Exhibit B. Tenant's total rentable square area shall be increased to
9,677 rentable square feet.
BASIC MONTHLY RENTAL.
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The base rental amount for Suite 330 is as follows:
Commencement Date - September 30, 2000 $4,840.05 per month ($2.05/rsf)
The base rental amount for Suite 335 is as follows
Commencement Date - September 30, 2000 $5,401.75 per month ($2.05/rsf)
IMPROVEMENTS.
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Tenant agrees to Lease Suite 330 in its "as is" condition, except for the
following: Landlord agrees at Landlord's sole cost and expense to remove panic
hardware on the three (3) exterior corridor doors and install building standard
hardware; remove two (2) sets of interior doors and frame the doorways; remove
the display walls, patch and paint walls; remove the vertical blinds and replace
with building standard mini blinds on exterior windows; remove two (2) white
boards; remove verticals blinds along west wall.
Tenant agrees to lease Suite 335 in its "as is" condition, except for the
following: Landlord agrees at Landlord's sole cost and expense to install
additional electrical wall outlet every six (6) feet in the open area of the
suite; touch up paint as required; install suite door frame.
OPTION TO RENEW. Tenant shall, provided this Lease is in full force and effect
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and Tenant is not and has not been in default under any of the terms and
conditions of this Lease, have one (1) option to renew this Lease for a term of
six (6) months for the Premises (Suite 330, Suite 335, and Garden Level Suite)
in "as is" condition and on the same terms and conditions set forth in this
Lease, except as modified by the terms, covenants and conditions set forth
below:
(1) If Tenant elects to exercise such option, then Tenant shall provide
Landlord with written notice no later than 5:00 p.m. (Pacific Standard
Time) on the date which is six (6) months prior to the expiration of
the then current term of this Lease. If Tenant fails to provide such
notice, Tenant shall have no further or additional right to
extend or renew the term of this Lease.
(2) The Base Rent in effect at the expiration of the then current term of
this Lease shall be increased to $2.22 per square foot, per month.
(3) Tenant's right to exercise any option to renew under this Paragraph
shall be conditioned upon Tenant occupying the entire Premises and the
same not being occupied by any assignee, subtenant or license other
than Tenant or its affiliate at the time of exercise of any option and
commencement of the renewal term. Tenant's exercise of any option to
renew shall constitute a representation by Tenant to Landlord that as
of the date of exercise of the option and the commencement of the
applicable renewal term, Tenant does not intend to seek to assign this
Lease in whole or in part, or sublet all or any portion of the
Premises.
(4) Any exercise by Tenant of any option to renew under this Paragraph
shall be irrevocable. If requested by Landlord, Tenant agrees to
execute a lease amendment or, at Landlord's option, a new lease
agreement on Landlord's then standard lease form for the Building,
reflecting the foregoing terms and conditions, prior to the
commencement of the renewal term. The option to renew granted under
this Paragraph is not transferable; the parties hereto acknowledge and
agree that they intend that the option to renew this Lease under this
Paragraph shall be "personal" to the specific Tenant named in this
Lease and that in no event will any assignee or subleasee have any
rights to exercise such option(s) to renew
SECURITY DEPOSIT. Security deposit shall increase by $10,241.80 to reflect the
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inclusion of Suites 330 ($4,840.05) and 335 ($5,401.75).
PARKING. Tenant shall be allowed an additional twenty (20) parking spaces at the
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prevailing market rate. Ten (10) unreserved surface parking spaces at the
prevailing market rate of $60/month/space, not including taxes; and Four (4)
reserved tandem spaces (8 spaces total) at the prevailing market rate of
$60/month/space, not including taxes; and Two (2) single reserved spaces at the
prevailing market rate of $120/month/space, not including taxes.
[LOGO OF XXXXXXX PROPERTIES]
[LOGO OF SANTA XXXXXX BUSINESS PARK]
0000 XXXXX XXXX XXXXXXXXX
XXXXX 000
Xxxxx Xxxxxx, Xxxxxxxxxx
RENTABLE SQ. FT. 2,361
[PLAN APPEARS HERE]
0000 XXXXX XXXX XXXX.
Xxxxx Xxxxxx, xxxxxxxxxx
Building W
SUITE 335
RENTABLE SQ. FT.: 2,664
[PLAN APPEARS HERE]
IN WITNESS WHEREOF, the parties hereto have signed and sealed this Lease
Amendment Number One as dated below.
LANDLORD: XXXXXXX PROPERTIES, L.P.,
a California limited partnership
By: Xxxxxxx Properties, Inc.,
a Maryland corporation
Its: General Partner
By /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
Vice President
Date 5/19/99
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TENANT: MULTILINK TECHNOLOGY CORPORATION
a California corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------
Its: President
---------------------------
Date: 4/30/99
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EXHIBIT B
[SITE PLAN APPEARS HERE]
Site Plan - Santa Xxxxxx Business Park
BASIC LEASE INFORMATION
OFFICE GROSS
LEASE DATE: March 10, 1999
(same as date in first paragraph of Lease)
TENANT: Multilink Technology Corporation, a California Corporation
TENANT'S NOTICE ADDRESS: 0000 Xxxxx Xxxx Xxxxxxxxx
Xxxxx Xxxxxx, XX 00000
TENANT'S BILLING ADDRESS: 0000 Xxxxx Xxxx Xxxxxxxxx
Xxxxx Xxxxxx, XX 00000
TENANT CONTACT: Xx. Xxxxxxx Xxxxxxxxxx PHONE NUMBER: 310/000-0000
FAX NUMBER: 31O/581-6449
LANDLORD: Xxxxxxx Properties, L.P., a California limited partnership
LANDLORD'S NOTICE ADDRESS: 0000 Xxxxx Xxxx Xxxx., Xxxxx 000
Xxxxx Xxxxxx, XX 00000
LANDLORD'S REMITTANCE ADDRESS: X.X. Xxx 00000
Xxxxxxxxxx 00000
Xxx Xxxxxxx, XX 00000-0000
Project Description: A project commonly known as Santa Xxxxxx Business Park consisting of
approximately 19 buildings as further shown on Exhibit B and attached hereto.
Building Description: A three story office building located at 0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx
Xxxxxx as further shown on Exhibit B and attached hereto.
Premises: Approximately 4,681 rentable square feet on the Garden level located in the
above described building as shown on Exhibit B and attached hereto.
Permitted Use: General office use, as well as other legally permitted uses.
Occupancy Density: Four (4) individuals/1,000 rentable square feet.
Parking Density: Tenant may rent up to 15 unreserved surface parking or in the parking
structure located in the west campus of the Santa Xxxxxx Business Park.
Parking and Parking Charge: 15 non-exclusive spaces at $66.00 per space/per month plus applicable
municipal city tax per space (this rate is market adjusted and may vary).
Scheduled Term Commencement Date: April 1, 1999
Scheduled Length of Term: 18 months
Scheduled Term Expiration Date: September 30, 2000
Rent:
Base Rent: Months 1-18 4/1/99-9/30/2000: $8,893.9 (1.90 FSG/month)
Base Year for Operating Expenses: 1999
Security Deposit: $ 8,893.90
Tenant's Proportionate Share:
Of Building: 3.29%
The foregoing Basic Lease Information is incorporated into and made a part of
this Lease. Each reference in this Lease to any of the Basic Lease Information
shall mean the respective information above and shall be construed to
incorporate all of the terms provided under the particular Lease paragraph
pertaining to such information. In the event of any conflict between the Basic
Lease Information and the Lease, the latter shall control.
LANDLORD TENANT
Xxxxxxx Properties, L.P., Multilink Technology Corporation
a California limited partnership a California Corporation
By: Xxxxxxx Properties, Inc.,
a Maryland corporation, By: /s/ Xxxxxxx Nottenberg
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its general partner Xxxxxxx Nottenberg
Its: President
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx
Its: Vice President
TABLE OF CONTENTS
Page
Basic Lease Information............................................... 1
Table of Contents..................................................... 2
1. Premises.............................................................. 4
2. Possession and Lease Commencement..................................... 4
3. Term.................................................................. 4
4. Use................................................................... 4
5. Rules and Regulations................................................. 5
6. Rent.................................................................. 5
7. Operating Expenses.................................................... 5
8. Insurance and Indemnification......................................... 7
9. Waiver of Subrogation................................................. 8
10. Landlord's Repairs and Maintenance.................................... 9
11. Tenant's Repairs and Maintenance...................................... 9
12. Alterations........................................................... 9
13. Signs................................................................. 9
14. Inspection/Posting Notices............................................ 10
15. Services and Utilities................................................ 10
16. Subordination......................................................... 11
17. Financial Statements.................................................. 11
18. Estoppel Certificate.................................................. 11
19. Security Deposit...................................................... 11
20. Limitation of Tenant's Remedies....................................... 11
21. Assignment and Subletting............................................. 11
22. Authority of Tenant................................................... 12
23. Condemnation.......................................................... 12
24. Casualty Damage....................................................... 13
25. Holding Over.......................................................... 13
26. Default............................................................... 13
27. Liens................................................................. 14
28. Substitution.......................................................... 15
29. Transfers by Landlord................................................. 15
30. Right of Landlord to Perform Tenant's Covenants....................... 15
31. Waiver................................................................ 15
32. Notices............................................................... 15
33. Attorney's Fees....................................................... 16
34. Successors and Assigns................................................ 16
35. Force Majeure......................................................... 16
36. Surrender of Premises................................................. 16
37. Parking .............................................................. 16
38. Miscellaneous......................................................... 16
39 Additional Provisions................................................. 17
40. Jury Trial Waiver..................................................... 17
Signatures............................................................ 18
Exhibits:
Exhibit A.............................................Rules and Regulations
Exhibit B...................................Site Plan, Property Description
Exhibit C............................Tenant Improvements and Specifications
Additional Exhibits as Required
3
LEASE
THIS LEASE is made as of the 10/th/ day of March 1999, by and between Xxxxxxx
Properties, L.P., a California limited partnership (hereinafter called
"Landlord"), and Multilink Technology Corporation, a California Corporation
(hereinafter called "Tenant").
1. PREMISES
Landlord leases to Tenant and Tenant leases from Landlord, upon the terms and
conditions hereinafter set forth, those premises (the "Premises") outlined in
red on Exhibit B and described in the Basic Lease Information. The Premises
shall be all or part of a building (the "Building") and of a project (the
"Project"), which may consist of more than one building and additional
facilities, as described in the Basic Lease Information. The Building and
Project are outlined in blue and green respectively on Exhibit B. Landlord and
Tenant acknowledge that the number of buildings and additional facilities which
constitute the Project may change from time to time, which may result in an
adjustment in Tenant's Proportionate Share, as defined in the Basic Lease
Information, as provided in Paragraph 7.A.
2. POSSESSION AND LEASE COMMENCEMENT
A. Existing Improvements. If this Lease pertains to a Premises in which the
interior improvements have already been constructed ("Existing Improvements"),
the provisions of this Paragraph 2.A. shall apply and the term commencement date
("Term Commencement Date") shall be the earlier of the date on which: (1) Tenant
takes possession of some or all of the Premises; or (2) Landlord notifies Tenant
that Tenant may occupy the Premises. If for any reason Landlord cannot deliver
possession of the Premises to Tenant on the scheduled Term Commencement Date,
Landlord shall not be subject to any liability therefor, nor shall Landlord be
in default hereunder nor shall such failure affect the validity of this Lease,
and Tenant agrees to accept possession of the Premises at such time as Landlord
is able to deliver the same, which date shall then be deemed the Term
Commencement Date. Tenant shall not be liable for any Rent (defined below), for
any period prior to the Term Commencement Date. Tenant acknowledges that Tenant
has inspected and accepts the Premises in their present condition, "as is," and
as suitable for, the Permitted Use (as defined below), and for Tenant's intended
operations in the Premises. Tenant agrees that the Premises and other
improvements are in good and satisfactory condition as of when possession was
taken. Tenant further acknowledges that no representations as to the condition
or repair of the Premises nor promises to alter, remodel or improve the Premises
have been made by Landlord or any agents of Landlord unless such are expressly
set forth in this Lease. Upon Landlord's request, Tenant shall promptly execute
and return to Landlord a "Start-Up Letter" in which Tenant shall agree, among
other things, to acceptance of the Premises and to the determination of the Term
Commencement Date, in accordance with the terms of this Lease, but Tenant's
failure or refusal to do so shall not negate Tenant's acceptance of the Premises
or affect determination of the Term Commencement Date. Landlord represents that
all building systems (HVAC, plumbing, electrical, etc.) are in good working
order (within premises at lease) and will be responsible for primary repair of
all latent defects.
3. TERM
The term of this Lease (the "Term") shall commence on the Term Commencement
Date and continue in full force and effect for the number of months specified
as the Length of Term in the Basic Lease Information or until this Lease is
terminated as otherwise provided herein. If the Term Commencement Date is a
date other than the first day of the calendar month, the Term shall be the
number of months of the Length of Term in addition to the remainder of the
calendar month following the Term Commencement Date.
4. USE
A. General. Tenant shall use the Premises for the permitted use specified in
the Basic Lease Information ("Permitted Use") and for no other use or purpose.
Tenant shall control Tenant's employees, agents, licensees, contractors,
assignees and subtenants (collectively, "Tenant's Parties") in such a manner
that Tenant and Tenant's Parties cumulatively do not exceed the occupant density
(the "Occupancy Density") or the parking density (the "Parking Density")
specified in the Basic Lease Information at any time. Tenant shall pay the
Parking Charge specified in the Basic Lease Information as Additional Rent (as
hereinafter defined) hereunder. So long as Tenant is occupying the Premises,
Tenant and Tenant's Parties shall have the nonexclusive right to use, in common
with other parties occupying the Building or Project, the parking areas,
driveways and other common areas of the Building and Project, subject to the
terms of this Lease and such rules and regulations as Landlord may from time to
time prescribe. Landlord reserves the right, without notice or liability to
Tenant, and without the same constituting an actual or constructive eviction, to
alter or modify the common areas from time to time, including the location and
configuration thereof, and the amenities and facilities which Landlord may
determine to provide from time to time.
B. Limitations. Tenant shall not permit any odors, smoke, dust, gas,
substances, noise or vibrations to emanate from the Premises or from tiny
portion of the common areas as a result of Tenant's or any Tenant's Party's use
thereof, nor take any action which would constitute a nuisance or would disturb,
obstruct or endanger any other tenants or occupants of the Building or Project
or elsewhere, or interfere with their respective premises or common areas.
Storage outside the Premises of materials, vehicles or any other items is
prohibited. Tenant shall not use or allow the Premises to be used for any
immoral, improper or unlawful purpose, nor shall Tenant cause or maintain or
permit any nuisance in, on or about the Premises. Tenant shall not commit or
suffer the commission of an waste in,
4
on or about the Premises. Tenant shall not allow any sale by auction upon the
Premises, or place any loads upon the floors, walls or ceilings which could
endanger the structure, or place any harmful substances in the drainage system
of the Building or Project. No waste, materials or refuse shall be dumped upon
or permitted to remain outside the Premises. Landlord shall not be responsible
to Tenant for the non-compliance by any other tenant or occupant of the Building
or Project with any of the above-referenced rules or any other terms or
provisions of such tenant's or occupant's lease or other contract, however,
Landlord agrees to make reasonable efforts to provide Tenant with the quiet
enjoyment of the Premises.
C. Compliance with Regulations. Tenant shall at its sole cost and expense
strictly comply with all existing or future applicable municipal, state and
federal and other governmental statutes, rules, requirements, regulations, laws
and ordinances, including zoning ordinances and regulations, and covenants,
casements and restrictions of record governing and relating to the use,
occupancy or possession of the Premises, to Tenant's use of the common areas, or
to the use, storage, generation or disposal of Hazardous Materials (hereinafter
defined) (collectively "Regulations"). Tenant shall at its sole cost and
expense obtain any and all licenses or permits necessary for Tenant's use of the
Premises. Tenant shall at its sole cost and expense promptly comply with the
requirements of any board of fire underwriters or other similar body now or
hereafter constituted. Tenant shall not do or permit anything to be done in, on,
under or about the Project or bring or keep anything which will in any way
increase the rate of any insurance upon the Premises, Building or Project or
upon any contents therein or cause a cancellation of said insurance or otherwise
affect said insurance in any manner. Tenant shall indemnify, defend (by counsel
reasonably acceptable to Landlord), protect and hold Landlord harmless from and
against any loss, cost, expense, damage, attorneys' fees or liability arising
out of the failure of Tenant to comply with any Regulation. Tenant's obligations
pursuant to the foregoing indemnity shall survive the expiration or earlier
termination of this Lease. Landlord represents the compliance of Premises,
Building and Project with all such regulations that have been notice to Landlord
by the Governing Authority as of the Term Commencement Date.
D. Hazardous Materials. AS used in this Lease, "Hazardous Materials" shall
include, but not be limited to, hazardous, toxic and radioactive materials and
those substances defined as "hazardous substances," "hazardous materials,"
"hazardous wastes," "toxic substances," or other similar designations in any
Regulation. Tenant shall not cause, or allow any of Tenant's Parties to cause,
any Hazardous Materials to be handled, used, generated, stored, released or
disposed of in, on, under or about the Premises, the Building or the Project or
surrounding land or environment in violation of any Regulations. Tenant must
obtain Landlord's written consent prior to the introduction of any Hazardous
Materials onto the Project. Notwithstanding the foregoing, Tenant may handle,
store, use and dispose of products containing small quantities of Hazardous
Materials for "general office purposes" (such as toner for copiers) to the
extent customary and necessary for the Permitted Use of the Premises; provided
that Tenant shall always handle, store, use, and dispose of any such Hazardous
Materials in a safe and lawful manner and never allow such Hazardous Materials
to contaminate the Premises, Building, or Project or surrounding land or
environment. Tenant shall immediately notify Landlord in writing of any
Hazardous Materials' contamination of any portion of the Project of which Tenant
becomes aware, whether or not caused by Tenant. Landlord shall have the right
upon notice to tenant, at all reasonable times to inspect the Premises and to
conduct tests and investigations to determine whether Tenant is in compliance
with the foregoing provisions, the costs of all such inspections, tests and
investigations to be borne by Tenant. Tenant shall indemnify, defend (by counsel
reasonably acceptable to Landlord), protect and hold Landlord harmless from and
against any and all claims, liabilities, losses, costs, loss of rents, liens,
damages, injuries or expenses (including attorneys' and consultants' fees and
court costs), demands, causes of action, or judgments arising out of or
related to the use, generation, storage, release, or disposal of Hazardous
Materials by Tenant or any of Tenant's Parties in, on, under or about the
Premises, the Building or the Project or surrounding land or environment, which
indemnity shall include without limitation, damages for personal or bodily
injury, property damage, damage to the environment or natural resources
occurring on or off the Premises, losses attributable to diminution in value or
adverse effects on marketability, the cost of any investigation, monitoring,
government oversight, repair, removal, remediation, restoration, abatement, and
disposal, and the preparation of any closure or other required plans, whether
such action is required or necessary prior to or following the expiration or
earlier termination of this Lease. Neither the consent by Landlord to the use,
generation, storage, release or disposal of Hazardous Materials nor the strict
compliance by Tenant with all laws pertaining to Hazardous Materials shall
excuse Tenant from Tenant's obligation of indemnification pursuant to this
Paragraph 4.D. Tenant's obligations pursuant to the foregoing indemnity shall
survive the expiration or earlier termination of this Lease.
5. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the building rules and
regulations attached hereto as Exhibit A and any other rules and regulations and
any non-discriminatory modifications or additions thereto which Landlord may
from time to time prescribe in writing for the purpose of maintaining the proper
care, cleanliness, safety, traffic flow and general order of the Premises or the
Building or Project. Tenant shall cause Tenant's Parties to comply with such
rules and regulations. Landlord shall not be responsible to Tenant for the non-
compliance by any other tenant or occupant of the Building or Project with any
of such rules and regulations, any other tenant's or occupant's lease or any
Regulations.
6. RENT
A. Base Rent. Tenant shall pay to Landlord and Landlord shall receive, without
notice or demand throughout the Term, Base Rent as specified in the Basic Lease
Information, payable in monthly installments in advance on or before the first
day of each calendar month, in lawful money of the United States, without
deduction or offset whatsoever, at the Remittance Address specified in the Basic
Lease Information or to such other place as Landlord may from time to time
designate in writing. Base Rent for the first full month of the Term shall be
paid by Tenant upon Tenant's execution of this Lease. If the obligation for
payment of Base Rent commences on a day other than the first day of a month,
then Base Rent shall be prorated and the prorated installment shall be paid on
the first day of the calendar month next succeeding the Term Commencement Date.
The Base Rent payable by Tenant hereunder is subject to adjustment as provided
elsewhere in this Lease, as applicable. As used herein, the term "Base Rent"
shall mean the Base Rent specified in the Basic Lease Information as it may be
so adjusted from time to time.
B. Additional Rent. All monies other than Base Rent required to be paid by
Tenant hereunder, including, but not limited to, Tenant's Proportionate Share
of Operating Expenses, as specified in Paragraph 7 of this Lease, charges to be
paid by Tenant under Paragraph 15, the interest and late charge described in
Paragraphs 26.C. and D., and any monies spent by Landlord pursuant to Paragraph
30, shall be considered additional rent ("Additional Rent"). "Rent" shall mean
Base Rent and Additional Rent.
7. OPERATING EXPENSES
A. Operating Expenses. In addition to the Base Rent required to be paid
hereunder, beginning with the expiration of the Base Year specified in the Basic
Lease Information (the "Base Year"), Tenant shall pay as Additional Rent,
Tenant's Proportionate Share of the Building and/or Project (as applicable), 2s
defined in the Basic Lease Information, of increases in Operating Expenses
(defined below) over the Operating Expenses incurred by Landlord during the Base
Year (the "Base Year Operating Expenses"), in the manner set forth below. Tenant
shall pay the applicable Tenant's Proportionate Share of each such Operating
Expenses. Landlord and Tenant acknowledge that if the number of buildings
which constitute the Project increases or decreases, or if physical changes
are made to the Premises, Building or Project or the configuration of any
thereof, Landlord may at its discretion reasonably adjust Tenant's Proportionate
Share of the Building or Project to reflect the change. Landlord's determination
of Tenant's Proportionate Share of the Building and of the Project shall be
conclusive so long as it is reasonably and consistently applied. "Operating
Expenses" shall mean all expenses and costs of every kind and nature which
Landlord shall pay or become obligated to pay, because of or in connection with
the ownership, management, maintenance, repair, preservation, replacement and
operation of the Building or Project and its supporting facilities and such
5
additional facilities now and in subsequent years as may be determined by
Landlord to be necessary or desirable to the Building and/or Project (as
determined in a reasonable manner) other than those expenses and costs which are
specifically attributable to Tenant or which are expressly made the financial
responsibility of Landlord or specific tenants of the Building or Project
pursuant to this Lease. Operating Expenses shall include, but are not limited
to, the following:
(1) Taxes. All real property taxes and assessments, possessory interest
taxes, sales taxes, personal property taxes, business or license taxes or
fees, gross receipts taxes, service payments in lieu of such taxes or fees,
annual or periodic license or use fees, excises, transit charges, and other
impositions, general and special, ordinary and extraordinary, unforeseen as
well as foreseen, of any kind (including fees "in-lieu" of any such tax
or assessment) which are now or hereafter assessed, levied, charged,
confirmed, or imposed by any public authority upon the Building or Project,
its operations or the Rent (or any portion or component thereof), or any
tax, assessment or fee imposed in substitution, partially or totally, of
any of the above. Operating Expenses shall also include any taxes,
assessments, reassessments, or other fees or impositions with respect to
the development, leasing, management, maintenance, alteration, repair, use
or occupancy of the Premises, Building or Project or any portion thereof,
including, without limitation, by or for Tenant, and all increases therein
or reassessments thereof whether the increases or reassessments result from
increased rate and/or valuation (whether upon a transfer of the Building
or Project or any portion thereof or any interest therein or for any other
reason). Operating Expenses shall not include inheritance or estate taxes
imposed upon or assessed against the interest of any person in the Project,
or taxes computed upon the basis of the net income of any owners of any
interest in the Project. If it shall not be lawful for Tenant to reimburse
Landlord for all or any part of such taxes, the monthly rental payable to
Landlord under this Lease shall be revised to net Landlord the same net
rental after imposition of any such taxes by Landlord as would have been
payable to Landlord prior to the payment of any such taxes.
(2) Insurance. All insurance premiums and costs, including, but not
limited to, any deductible amounts, premiums and other costs of insurance
reasonably incurred by Landlord, including for the insurance coverage set
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forth in Paragraph 8.A. herein.
(3) Common Area Maintenance.
(a) Repairs, replacements, and general maintenance of and for the
Building and Project and public and common areas and facilities of and
comprising the Building and Project, including, but not limited to,
the roof and roof membrane, windows, elevators, restrooms, conference
rooms, health club facilities, lobbies, mezzanines, balconies,
mechanical rooms, building exteriors, alarm systems, pest
extermination, landscaped areas, parking and service areas, driveways,
sidewalks, loading areas, fire sprinkler systems, sanitary and storm
sewer lines, utility services, heating/ventilation/air conditioning
systems, electrical, mechanical or other systems, telephone equipment
and wiring servicing, plumbing, lighting, and any other items or areas
which affect the operation or appearance of the Building or Project,
which determination shall be at Landlord's discretion, except for:
those items expressly made the financial responsibility of Landlord
pursuant to Paragraph 10 hereof; those items to the extent paid for by
the proceeds of insurance; and those items attributable solely or
jointly to specific tenants of the Building or Project.
(b) Repairs, replacements, and general maintenance shall include the
cost of any capital improvements made to or capital assets acquired
for the Project or Building that in Landlord's discretion may reduce
any other Operating Expenses, (but limited to the extent of such
---------------------------------
reasonably anticipated savings) including present or future repair
------------------------------
work are reasonably necessary for the health and saftey of the
occupants of the Building or Project, or are required to comply with
any Regulation, such costs or allocable portions thereof to be
amortized over such reasonable period as Landlord shall determine,
together with interest on the unamortized balance at the publicly
announced "prime rate" charged by Xxxxx Fargo Bank, N.A. (San
Francisco) or its successor at the time such improvements or capital
assets are constructed or acquired, plus two (2) percentage points, or
in the absence of such prime rate, then at the U.S. Treasury six-month
market note (or bond, if so designated) rate as published by any
national financial publication selected by Landlord, plus four (4)
percentage points, but in no event more than the maximum rate
permitted by law, plus reasonable financing charges.
(c) Payment under or for any casement, license, permit, operating,
agreement, declaration, restrictive covenant or instrument relating to
the Building or Project.
(d) All reasonable expenses and rental related to services and costs
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of supplies, materials and equipment used in operating, managing and
maintaining the Premises, Building and Project, the equipment therein
and the adjacent sidewalks, driveways, parking and service areas,
including, without limitation, expenses related to service agreements
regarding security, fire and other alarm systems, janitorial services,
window cleaning, elevator maintenance, Building exterior maintenance,
landscaping and expenses related to the administration, management and
operation of the Project, including without limitation salaries, wages
and benefits and management office rent.
(e) The cost of supplying any services and utilities which benefit
all or a portion of the Premises, Building or Project, including
without limitation services and utilities provided pursuant to
Paragraph 15 hereof.
(f) Legal expenses and the cost of audits by certified public
accountants; provided, however, that legal expenses chargeable as
Operating Expenses shall not include the cost of negotiating leases,
collecting rents, evicting tenants nor shall it include costs incurred
in legal proceedings with or against any third party, including any
--------------------------
tenant or to enforce the provisions of any lease.
(g) A management and accounting cost recovery fee equal to five
percent (5%) of the sum of the Project's base rents and Operating
Expenses to the extent not included in such base rents (other than
such management and accounting fee).
If the rentable area of the Building and/or Project is not fully occupied during
any fiscal year of the Term as determined by Landlord, an adjustment may be made
in Landlord's discretion in computing the Operating Expenses for such year so
that Tenant pays an equitable portion of all variable items (e.g., utilities,
janitorial services and other component expenses that are affected by variations
in occupancy levels) of Operating Expenses, as reasonably determined by
Landlord; provided, however, that in no event shall Landlord be entitled to
collect in excess of one hundred percent (100%) of the total Operating
Expenses from all of the tenants in the Building or Project, as the case may be,
and in no instance shall Tenant pay more than its proportionate share of
------------------------------------------------------------------------
operating expenses.
------------------
Operating Expenses shall not include the cost of providing tenant improvements
or other specific costs incurred for the account of, separately billed to and
paid by specific tenants of the Building or Project, the initial construction
cost of the Building, or debt service on any mortgage or deed of trust recorded
with respect to the Project other than pursuant to Paragraph 7.A.(3)(b) above.
Additional exclusions from operating expenses:
---------------------------------------------
1. Costs of repairing major and/or latent defects in construction.
-----------------------------------------------------------------
2. Costs for which Landlord is reimbursed by any other tenant of occupant of
----------------------------------------------------------------------------
the Building or Project.
-----------------------
6
3. Fines penalties and interest on late payments.
---------------------------------------------
4. Expenses in connection with services and/or other benefits which are not
------------------------------------------------------------------------
offered to Tenant or are provided to Tenant at a direct charge but which
------------------------------------------------------------------------
are provided to another tenant of the Project without separate charge.
---------------------------------------------------------------------
5. Costs arising from Landlord's political or charitable contributions.
-------------------------------------------------------------------
6. Costs, other than those incurred in ordinary maintenance and repair, for
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sculpture, paintings, fountains or other objects of art.
-------------------------------------------------------
7. Costs to remove or otherwise remediate Hazardous Materials or comply with
-------------------------------------------------------------------------
laws relating to Hazardous Materials.
------------------------------------
8. Reserves for future expenses beyond current year anticipated expenses.
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9. Repairs or replacements to any utility systems which are dedicated to the
-------------------------------------------------------------------------
use of a single tenant.
----------------------
Notwithstanding anything herein to the contrary, in any instance wherein
Landlord, reasonably deems Tenant to be responsible for any amounts greater than
Tenant's Proportionate Share, Landlord shall have the right to reasonably
----------
allocate such costs.
---- -
The above enumeration of services and facilities shall not be deemed to impose
an obligation on Landlord to make available or provide such services or
facilities except to the extent if any that Landlord has specifically agreed
elsewhere in this Lease to make the same available or provide the same. Without
limiting the generality of the foregoing, Tenant acknowledges and agrees that it
shall be responsible for providing adequate security for its use of the
Premises, the Building and the Project and that Landlord shall have no
obligation or liability with respect thereto, except to the extent if any that
Landlord has specifically agreed elsewhere in this Lease to provide the same.
B. Payment of Estimated Operating Expenses. "Estimated Operating Expenses" for
any particular year shall mean Landlord's estimate of the Operating Expenses for
such fiscal year made with respect to such fiscal year as hereinafter provided.
Landlord shall have the right from time to time to revise its fiscal year and
interim accounting periods so long as the periods as so revised are reconciled
with prior periods in a reasonable manner. During the last month of each fiscal
year during the Term, or as soon thereafter as practicable, Landlord shah give
Tenant written notice of the Estimated Operating Expenses for the ensuing fiscal
year. Tenant shall pay Tenant's Proportionate Share of the difference between
Estimated Operating Expenses and Base Year Operating Expenses with installments
of Base Rent for the fiscal year to which the Estimated Operating Expenses
applies in monthly installments on the first day of each calendar month during
such year, in advance. Such payment shall be construed to be Additional Rent for
all purposes hereunder. If at any time during the course of the fiscal year,
Landlord determines that Operating Expenses are projected to vary from the
then Estimated Operating Expenses by more than five percent (5%), Landlord may,
by written notice to Tenant, revise the Estimated Operating Expenses for the
balance of such fiscal year, and Tenant's monthly installments for the remainder
of such year shall be adjusted so that by the end of such fiscal year Tenant has
paid to Landlord Tenant's Proportionate Share of the revised difference between
Estimated Operating Expenses and Base Year Operating Expenses for such year,
such revised installment amounts to be Additional Rent for all purposes
hereunder.
C. Computation of Operating Expense Adjustment. "Operating Expense Adjustment"
shall mean the difference between Estimated Operating Expenses and actual
Operating Expenses for any fiscal year, over Base Year Operating Expenses,
determined as hereinafter provided. Within one hundred twenty (120) days after
the end of each fiscal year, or as soon thereafter as practicable, Landlord
shall deliver to Tenant a statement of actual Operating Expenses for the fiscal
year just ended, accompanied by a computation of Operating Expense Adjustment.
If such statement shows that Tenant's payment based upon Estimated Operating
Expenses is less than Tenant's Proportionate Share of actual increases in
Operating Expenses over the Base Year Operating Expenses, then Tenant shall pay
to Landlord the difference within thirty (30) days after receipt of such
----------------
statement, such payment to constitute Additional Rent for all purposes
hereunder. If such statement shows that Tenant's payments of Estimated Operating
Expenses exceed Tenant's Proportionate Share of actual increases in Operating
Expenses over the Base Year Operating Expenses, Landlord shall pay to Tenant the
difference within twenty (20) days after delivery of such statement to Tenant.
If this Lease has been terminated or the Term hereof has expired prior to the
date of such statement, then the Operating Expense Adjustment shall be paid by
the appropriate party within thirty (30) days after the date of delivery of the
----------------
statement. Tenant's obligation to pay increases in Operating Expenses over the
Base Year Operating Expenses shall commence on January 1 of the year succeeding
the Base Year. Should this Lease terminate at any time other than the last day
of the fiscal year, Tenant's Proportionate Share of the Operating Expense
Adjustment shall be prorated based on a month of 30 days and the number of
calendar months during such fiscal year that this Lease in effect. Tenant shall
in no event be entitled to any credit if Operating Expenses in any year are less
than Base Year Operating Expenses. Notwithstanding anything to the contrary
contained in Paragraph 7.A or 7.B, Landlord's failure to provide any notices or
statements within the time periods specified in those paragraphs shall in no way
excuse Tenant from its obligation to pay Tenant's Proportionate Share of
increases in Operating Expenses.
D). Gross Lease. This shall be a gross Lease; however, it is intended that Base
Rent shall be paid to Landlord absolutely net of all costs and expenses other
than Operating Expenses each year equal to Tenant's Proportionate Share of Base
Year Operating Expenses, except as otherwise specifically provided to the
contrary in this Lease. The provisions for payment of increases in Operating
Expenses and the Operating Expense Adjustment are intended to pass on to Tenant
and reimburse Landlord for all costs and expenses of the nature described in
Paragraph 7.A. incurred in connection with the ownership, management,
maintenance, repair, preservation, replacement and operation of the Building
and/or Project and its supporting facilities and such additional facilities, in
excess of the Base Year Operating Expenses, now and in subsequent years as may
be determined by Landlord to be necessary or desirable to the Building and/or
Project.
E. Tenant Audit. If Tenant shall dispute the amount set forth in any statement
provided by Landlord under Paragraph 7.B. or 7.C. above, Tenant shall have the
right, not later than forty-five (45) days following receipt of such statement
---------------
and upon the condition that Tenant shall first deposit with Landlord the full
amount in dispute, to cause Landlord's books and records with respect to
Operating Expenses for such fiscal year to be audited by certified public
accountants selected by Tenant and subject to Landlord's reasonable right of
approval. The Operating Expense Adjustment shall be appropriately adjusted on
the basis of such audit. If such audit discloses a liability for a refund in
excess of five percent (5%) of Tenant's Proportionate Share of the Operating
---- -
Expenses previously reported, the cost of such audit shall be borne by Landlord;
otherwise the cost of such audit shall be paid by Tenant. If Tenant shall not
request an audit in accordance with the provisions of this Paragraph 7.E. within
forty-five (45) days after receipt of Landlord's statement provided pursuant to
---------------
Paragraph 7.B or 7.C., such statement shall be final and binding for all
purposes hereof.
8. INSURANCE AND INDEMNIFICATION
A. Landlord's Insurance. All insurance maintained by Landlord shall be for the
sole benefit of Landlord and under Landlord's sole control
(1) Property Insurance. Landlord agrees to maintain property insurance
insuring the Building against damage or destruction due to risk including
fire, vandalism, and malicious mischief in an amount not less than the
replacement cost thereof, in the form and with deductibles and
endorsements as selected by Landlord. At its election, Landlord may instead
(but shall
7
have no obligation to) obtain "All Risk" coverage, and may also obtain
earthquake, pollution, and/or flood insurance in amounts selected by
Landlord.
2) Optional Insurance. Landlord, at Landlord's option, may also (but
shall have no obligation to) carry insurance against loss of rent, in an
amount equal to the amount of Base Rent and Additional Rent that Landlord
could be required to xxxxx to all Building tenants in the event of
condemnation or casualty damage for a period of twelve (12) months.
Landlord may also (but shall have no obligation to) carry such other
insurance as Landlord may deem prudent or advisable, including, without
limitation, liability insurance in such amounts and on such terms as
Landlord shall determine. Landlord shall not be obligated to insure, and
shall have no responsibility whatsoever for any damage to, any furniture,
machinery, goods, inventory or supplies, or other personal property or
fixtures which Tenant may keep or maintain in the Premises, or any
leasehold improvements, additions or alterations within the Premises.
B. Tenant's Insurance.
(1) Property Insurance. Tenant shall procure at Tenant's sole cost and
expense and keep in effect from the date of this Lease and at all times
until the end of the Term, insurance on all personal property and fixtures
of Tenant and all improvements, additions or alterations made by or for
Tenant to the Premises on an "All Risk" basis, insuring such property for
the full replacement value of such property.
(2) Liability Insurance. Tenant shall procure at Tenant's sole cost and
expense and keep in effect from the date of this Lease and at all times
until the end of the Term Commercial General Liability insurance covering
bodily injury and property damage liability occurring in or about the
Premises or arising out of the use and occupancy of the Premises and the
Project, and any part of either, and any areas adjust thereto, and the
business operated by Tenant or by any other occupant of the Premises. Such
insurance shall include contractual liability insurance coverage insuring
all of Tenant's indemnity obligations under this Lease. Such coverage shall
have a minimum combined single limit of liability of at least Two Million
Dollars ($2,000,000.00), and a minimum general aggregate limit of Three
Million Dollars ($3,000,000.00), with an "Additional Insured - Managers or
Lessors of Premises Endorsement." All such policies shall be written to
apply to all bodily injury (including death), property damage or loss,
personal and advertising injury and other covered loss, however occasioned,
occurring during the policy term, shall be endorsed to add Landlord and any
party holding an interest to which this Lease may be subordinated as an
additional insured, and shall provide that such coverage shall be "primary"
and non-contributing with any insurance maintained by Landlord, which shall
be excess insurance only. Such coverage shall also contain endorsements
including employees as additional insureds if not covered by Tenant's
Commercial General Liability Insurance. All such insurance shall provide
for the severability of interests of insureds; and shall be written on an
"occurrence" basis, which shall afford covered for all claims based on
acts, omissions, injury and damage, which occurred or arose (or the onset
of which occurred or arose) in whole or in during the policy period.
(3) Workers' Compensation and Employers' Liability Insurance. Tenant shall
carry Workers' Compensation Insurance as required by any Regulation,
throughout the Term at Tenant's sole cost and expense. Tenant shall also
carry Employers Liability Insurance in amounts not less than One Million
Dollars ($1,000,000) each accident for bodily injury by accident; One
Million Dollars ($1,000,000) policy limit for bodily injury by disease; and
One Million Dollars ($1,000,000) each employee for bodily injury by
disease, throughout the Term at Tenant's sole cost and expense.
(4) General Insurance Requirements. All coverages described in this
Paragraph 8.B. shall be endorsed to (i) provide Landlord with thirty (30)
days' notice of cancellation or change in terms; and (ii) waive all rights
of subrogation by the insurance carrier against Landlord. If at any time
during the amount or coverage of insurance which Tenant is required to
carry under this Paragraph 8.B. is, in Landlord's reasonable judgment,
materially less than the amount or type of insurance coverage typically
carried by owners or tenants of properties located in the general area in
which the Premises are located which are similar to and operated for
similar purposes as the Premises or if Tenant's use of the Premises should
change with or without Landlord's consent, Landlord shall have the right to
require Tenant to increase the amount or change the types of insurance
coverage required under this Paragraph 8.B. All insurance policies required
to be carried by Tenant under this Lease shall be written by companies
rated A X or better in "Best's Insurance Guide" and authorized to do
business in the State of California. In any event deductible amounts under
all insurance policies required to be carried by Tenant under this Lease
shall not exceed Five Thousand Dollars ($5,000.00) per occurrence. Tenant
shall deliver to Landlord on or before the Term Commencement Date, and
thereafter at least thirty (30) days before the expiration dates of the
expired policies, certified copies of Tenant's insurance policies, or a
certificate evidencing the same issued by the insurer thereunder; and, if
Tenant shall fail to procure such insurance, or to deliver such policies or
certificates, Landlord may, at Landlord's option and in addition to
Landlord's other remedies in the event of a default by Tenant hereunder,
procure the same for the account of Tenant, and the cost thereof shall be
paid to Landlord as Additional Rent.
C. Indemnification. Tenant shall indemnify, defend by counsel reasonably
acceptable to Landlord, protect and hold Landlord harmless from and against any
and all claims, liabilities, losses, costs, loss of rents, liens, damages,
injuries or expenses, including reasonable attorneys' and consultants' fees and
court costs, demands, causes of action, or judgments, directly or indirectly
arising out of or related to: (1) claims of injury to or death of persons or
damage to property occurring or resulting from the use or occupancy of the
Premises, Building or Project by Tenant or Tenant's Parties, (2) claims arising
from work or labor performed, or for materials or supplies furnished to or at
the request or for the account of Tenant in connection with performance of any
work done for the account of Tenant within the Premises or Project; (3) claims
arising from any breach or default on the part of Tenant in the performance of
any covenant contained in this Lease; and (4) claims arising from the negligence
or willful misconduct of Tenant or Tenant's Parties. The foregoing indemnity by
---------------------
Tenant shall not be applicable to claims to the extent arising from the
negligence or willful misconduct of Landlord. Landlord shall not be liable to
Tenant and Tenant hereby waives all claims against Landlord for any injury or
damage to any person or property in or about the Premises, Building or Project
by or from any cause whatsoever (other than Landlord's negligence or willful
misconduct) and, without limiting the generality of the foregoing, whether
caused by water leakage of any character from the roof, walls, basement or other
portion of the Premises, Building or Project, or caused by gas, fire, oil or
electricity in, on or about the Premises, Building or Project. The provisions of
this Paragraph shall survive the expiration or earlier termination of this
Lease.
9. WAIVER OF SUBROGATION
To the extent permitted by law and without affecting the coverage provided by
insurance to be maintained hereunder or any other rights or remedies, Landlord
and Tenant each waive any right to recover against the other for: (a) damages
for injury to or death of persons; (b) damages to property, including personal
property; (c) damages to the Premises or any part thereof; and (d) claims
arising by reason of the foregoing due to hazards covered by insurance
maintained or required to be maintained pursuant to this Lease to the extent of
proceeds recovered therefrom, or proceeds which would have been recoverable
therefrom in the case of the failure of any party to maintain any insurance
coverage required to be maintained by such party pursuant to this Lease. This
provision is intended to waive fully, any rights and/or claims arising by reason
of the foregoing, but only to the extent that any of the foregoing damages
and/or claims referred to above are covered or would be covered, and only to the
extent of such coverage, by insurance actually carried or required to be
maintained pursuant to this Lease by either Landlord or Tenant. This provision
is also intended to waive fully, and for the benefit of each party, any rights
and/or claims which might give rise to a right of subrogation on any insurance
carrier. Subject to all qualification of this Paragraph
8
9. Landlord waives its rights as specified in this Paragraph 9 with respect to
any subtenant that it has approved pursuant to Paragraph 21 but only in exchange
for the written waiver of such rights to be given by such subtenant to Landlord
upon such subtenant taking possession of the Premises or a portion thereof. Each
party shall cause each insurance policy obtained by it to provide that the
insurance company waives all right of recovery by way of subrogation against
either party in connection with any damage covered by any policy.
10. LANDLORD'S REPAIRS AND MAINTENANCE
Landlord shall at Landlord's expense maintain in good repair, reasonable wear
and tear excepted, the roof, foundations, and exterior walls of the Building.
The term "exterior walls" as used herein shall not include windows, glass or
plate glass, doors, special store fronts or office entries. Any damage caused by
or repairs necessitated by any negligence or act of Tenant or Tenant's Parties
may be repaired by Landlord at Landlord's option and Tenant's expense. Tenant
shall immediately give Landlord written notice of any defect or need of repairs
in such components of the Building for which Landlord is responsible, after
which Landlord shall have a reasonable opportunity and the right to enter the
Premises at all reasonable times to repair same. Landlord's liability with
respect to any defects, repairs, or maintenance for which Landlord is
responsible under any of the provisions of this Lease shall be limited to the
cost of such repairs or maintenance, and there shall be no abatement of rent and
no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of repairs, alterations or
improvements in or to any portion of the Premises, the Building or the Project
or to fixtures, appurtenances or equipment in the Building, except as provided
in Paragraph 24. By taking possession of the Premises, Tenant accepts them "as
is," as being in good order, condition and repair and the condition in which
Landlord is obligated to deliver them and suitable for the Premises Use and
Tenant's intended operations in the Premises, whether or not any notice of
acceptance is given.
11. TENANT'S REPAIRS AND MAINTENANCE
Tenant shall at all times during the Term at Tenant's expense maintain all
parts of the Premises and such portions of the Building as are within the
exclusive control of Tenant in a first-class, good, clean and secure condition
and promptly make all necessary repairs and replacements, as determined by
Landlord, with materials and workmanship of the same character, kind and quality
as the original. Notwithstanding anything to the contrary contained herein,
Tenant shall, at its expense, promptly repair any damage to the Premises or the
Building or Project resulting from or caused by any negligence of Tenant or
Tenant's Parties.
12. ALTERATIONS
A. Tenant shall not make, or allow to be made, any alterations, physical
additions, improvements or partitions, including without limitation the
attachment of any fixtures or equipment, in, about or to the Premises
("Alterations") without obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld with respect to proposed Alterations
which: (a) comply with all applicable Regulations; (b) are, in Landlord's
reasonable opinion, compatible with the Building or the Project and its
----------
mechanical, plumbing, electrical,heating/ventilation/air conditioning systems,
and will not cause the Building or Project or such systems to be required to be
modified to comply with any Regulations (including, without limitation, the
Americans With Disabilities Act); and (c) will not interfere with the use and
occupancy of any other portion of the Building or Project by any other tenant or
its invitees. Specifically, but without limiting the generality of the
foregoing, Landlord shall have the right of written consent for all plans and
specifications for the proposed Alterations, construction means and methods, all
appropriate permits and licenses, any contractor or subcontractor to be employed
on the work of Alterations, and the time for performance of such work, and may
impose reasonable rules and regulations for contractors and subcontractors
----------
performing such work. Tenant shall also supply to Landlord any documents and
information reasonably requested by Landlord in connection with Landlord's
consideration of a request for approval hereunder. Tenant shall cause all
Alterations to be accomplished in a first-class, good and workmanlike manner,
and to comply with all applicable Regulations and Paragraph 27 hereof. Tenant
shall at Tenant's sole expense, perform any additional work required under
applicable Regulations due to the Alterations hereunder. No review or consent by
Landlord of or to any proposed Alteration or additional work shall constitute a
waiver of Tenant's obligations under this Paragraph 12, nor constitute any
warranty or representation that the same complies with all applicable
Regulations, for which Tenant shall at all times be solely responsible. Tenant
shall reimburse Landlord for all reasonable out of pocket costs which Landlord
------------------------
may incur in connection with granting approval to Tenant for any such
Alterations, including any costs or expenses which Landlord may incur in
electing to have outside architects and engineers review said plans and
specifications, and shall pay Landlord an administration fee of five percent of
the cost of the Alterations as Additional Rent hereunder. All such Alterations
shall remain the property of Tenant until the expiration or earlier termination
of this Lease, at which time they shall be and become the property of Landlord;
provided, however, that Landlord may, if Landlord has made predetermined request
------------------------------------------
(at the time of the approval of the installation), require that Tenant, at
-------------------------------------------------
Tenant's expense, remove any or all Alterations made by Tenant and restore the
Premises by the expiration or earlier termination of this Lease, to their
condition existing prior to the construction of any such Alterations. All such
removals and restoration shall be accomplished in a first-class and good and
workmanlike manner so as not to cause any damage to the Premises or Project
whatsoever. If Tenant fails to remove such Alterations or Tenant's trade
fixtures or furniture or other personal property, Landlord may keep and use them
or remove any of them and cause them to be stored or sold in accordance with
applicable law, at Tenant's sole expense. In addition to and wholly apart from
Tenant's obligation to pay Tenant's Proportionate Share of Operating Expenses,
Tenant shall be responsible for and shall pay prior to delinquency any taxes or
governmental service fees, possessory interest taxes, fees or charges in lieu of
any such taxes, capital levies, or other charges imposed upon, levied with
respect to or assessed against its fixtures or personal property, on the value
of Alterations within the Premises, and on Tenant's interest pursuant to this
Lease, or any increase in any of the foregoing based on such Alterations. To the
extent that any such taxes are not separately assessed or billed to Tenant,
Tenant shall pay the amount thereof as invoiced to Tenant by Landlord.
Notwithstanding the foregoing, at Landlord's option (but without obligation),
all or any portion of the Alterations shall be performed by Landlord for
Tenant's account and Tenant shall pay Landlord's estimate of the cost thereof
(including a reasonable charge for Landlord's overhead and profit) prior to
commencement of the work. In addition, at Landlord's election and
notwithstanding the foregoing, however, Tenant shall pay to Landlord the cost of
removing any such Alterations and restoring the Premises to their original
condition such cost to include a reasonable charge for Landlord's overhead and
profit as provided above, and such amount may be deducted from the Security
Deposit or any other sums or amounts held by Landlord under this Lease.
B. In compliance with Paragraph 27 hereof, at least then (10) business days
before beginning construction of any Alteration, Tenant shall give Landlord
written notice of the expected commencement date of that construction to permit
Landlord to post and record a notice or non-responsibility. Upon substantial
completion of construction, if the law so provides, Tenant shall cause a timely
notice of completion to be recorded in the office of the recorder of the county
in which the Building is located.
13. SIGNS
Tenant shall not place, install affix, paint or maintain any signs, notices,
graphics or banners whatsoever or any window decor which is visible in or from
public view or corridors, the common areas or the exterior of the Premises or
the Building, in or on any exterior window or window fronting upon any common
areas or service area without Landlord's prior written approval which Landlord
shall have the right to withhold in it absolute and sole discretion; provided
that Tenant's name shall be included in any Building-standard door and directory
signage, if any, in accordance with Landlord's Building signage program,
including without limitation, payment by Tenant of any fee charged by Landlord
for maintaining such signage, which fee shall constitute Additional Rent
hereunder. Any installation of signs, notices graphics or banners on or about
the Premises or Project approved by Landlord shall be subject to any Regulations
and to any other requirements imposed by Landlord. Tenant shall remove all such
signs or graphics by the expiration or nay earlier termination of this
9
Lease. Such installations and removals shall be made in such manner as to avoid
injury to or defacement of the Premises, Building or Project and any other
improvements contained therein, and Tenant shall repair any injury or defacement
including without limitation discoloration caused by such installation or
removal.
14. INSPECTION/POSTING NOTICES
After reasonable notice, except in emergencies where no such notice shall be
required, Landlord and Landlord's agents and representatives, shall have the
right to enter the Premises to inspect the same, to clean, to perform such work
as may be permitted or required hereunder, to make repairs, improvements or
alterations to the Premises, Building or Project or to other tenant spaces
therein, to deal with emergencies, to post such notices as may be permitted or
required by law to prevent the perfection of liens against Landlord's interest
in the Project or to exhibit the Premises to prospective tenants, purchasers,
encumbrances or to others, or for any other purpose as Landlord may deem
necessary or desirable; provided, however, that Landlord shall use reasonable
efforts not to unreasonably interfere with Tenant's business operations. Tenant
shall not be entitled to any abatement of Rent by reason of the exercise of any
such right of entry. Tenant waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss occasioned thereby.
Landlord shall at all times have and retain a key with which to unlock all of
the doors in, upon and about the Premises, excluding Tenant's vaults and safes
or special security areas (designated in advance), and Landlord shall have the
right to use any and all means which Landlord may deem necessary or proper to
open said doors in an emergency, in order to obtain entry to any portion of the
Premises, and any entry to the Premises or portions thereof obtained by Landlord
by any of said means, or otherwise, shall not be construed to be a forcible or
unlawful entry into, or a detainer of, the Premises, or an eviction, actual or
constructive, of Tenant from the Premises or any portions thereof. At any time
within six (6) months prior to the expiration of the Term or following any
earlier termination of this Lease or agreement to terminate this Lease, Landlord
shall have the right to erect on the Premises, Building and/or Project a
suitable sign indicating that the Premises are available for lease.
15. SERVICES AND UTILITIES
A. Subject to the provisions elsewhere herein contained and to the rules and
regulations of the Building, Landlord shall furnish to the Premises during
ordinary business hours of generally recognized business days, to be determined
by Landlord (but exclusive, in any event, of Saturdays, Sundays and legal
holidays), water for lavatory and drinking purposes and electricity, head and
air conditioning as usually furnished or supplied for use of the Premises for
reasonable and normal office use as of the date Tenant takes possession of the
Premises as determined by Landlord (but not including above-standard or
continuous cooling for excessive hear-generating machines, excess lighting or
equipment), janitorial services during the times and in the manner that such
services are, in Landlord's judgement; customarily furnished in comparable
office buildings in the immediate market area, and elevator service, which shall
mean service either by nonattended automatic elevators or elevators with
attendants, or both, at the option of Landlord. Landlord shall have no
obligation to provide additional or after-hours electricity, heating or air
conditioning, but if Landlord elects to provide such services at Tenant's
request, Tenant shall pay to Landlord a reasonable charge for such services as
determined by Landlord. Tenant agrees to keep and cause to be kept closed all
window covering when necessary because of the sun's position, and Tenant also
agrees at all times to cooperate fully with Landlord and to abide by all of the
regulations and requirements which Landlord may prescribe for the proper
functioning and protection of electrical, heating, ventilating and air
conditioning systems. Wherever heat-generating machines, excess lighting or
equipment are used in the Premises which affect the temperature otherwise
maintained by the air conditioning system, Landlord reserves the right to
install supplementary air conditioning units in the Premises and the cost
thereof, including the cost of installation and the cost of operation and
maintenance thereof, shall be paid by Tenant to Landlord upon demand by
Landlord.
B. Tenant shall not without written consent of Landlord use any apparatus,
equipment or device in the Premises, including without limitation, computers,
electronic data processing machines, copying machines, and other machines, using
excess lighting or using electric current, water, or any other resource in
excess of or which will in any way increase the amount of electricity, water, or
any other resource being furnished or supplied for the use of the Premises for
reasonable and normal office use, in each case as of the date Tenant
takes possession of the Premises as determined by Landlord, or which will
require additions or alterations to or interfere with the Building power
distribution systems; nor connect with electric current, except through existing
electrical outlets in the Premises or water pipes, any apparatus, equipment or
device for the purpose of using electrical current, water, or any other
resource. If Tenant shall require water or electric current or any other
resource in excess of that being furnished or supplied for the use of the
Premises as of the date Tenant takes possession of the Premises as determined by
Landlord, Tenant shall first procure the written consent of Landlord which
Landlord may refuse, to the use thereof, and Landlord may cause a special meter
to be installed in the Premises so as to measure the amount of water, electric
current or other resource consumed for any such other use. Tenant shall pay
directly to Landlord as an addition to and separate from payment of Operating
Expenses the cost of all such additional resources, energy, utility service and
meters (and of installation, maintenance and repair thereof and of any
additional circuits or other equipment necessary to furnish such additional
resources, energy, utility or service). Landlord may add to the separate or
metered charge a recovery of additional expense incurred in keeping account of
the excess water, electric current or other resource so consumed. Landlord shall
not be liable for any damages directly or indirectly resulting from nor shall
the Rent or any monies owed Landlord under this Lease herein reserved be abated
by reason of: (a) the installation, use or interruption of use of any equipment
used in connection with the furnishing of any such utilities or services, or any
change in the character or means of supplying or providing any such utilities or
services or any supplier thereof; (b) the failure to furnish or delay in
furnishing any such utilities or services when such failure or delay is caused
by acts of God or the elements, labor disturbances of any character, or any
other accidents or other conditions beyond the reasonable control of Landlord or
because of any interruption of service due to Tenant's use of water, electric
current or other resource in excess of that being supplied or furnished for the
use of the Premises as of the date Tenant takes possession of the Premises; (c)
the inadequacy, limitation, curtailment, rationing or restriction on use of
water, electricity, gas or any other form of energy or any other service or
utility whatsoever serving the Premises or Project, whether by Regulation or
otherwise; or (d) the partial or total unavailability of any such utilities or
services to the Premises or the Building, whether by Regulation or otherwise;
nor shall any such occurrence constitute an actual or constructive eviction of
Tenant. Landlord shall further have not obligation to protect or preserve any
apparatus, equipment or device installed by Tenant in the Premises, including
without limitation by providing additional or after-hours heating or air
conditioning. Landlord shall be entitled to cooperate voluntarily and in a
reasonable manner with the efforts of national, state or local governmental
agencies or utility suppliers in reducing energy or other resource consumption.
The obligation to make services available hereunder shall be subject to the
limitations of any such voluntary, reasonable program. In addition, Landlord
reserves the right to change the supplier or provider of any such utility or
service from time to time. Tenant shall have no right to contract with or
otherwise obtain any electrical or other such service for or with respect to the
Premises or Tenant's operations therein from any supplier or provider of
such service. Tenant shall cooperate with Landlord and any supplier or provider
of such services designated by Landlord from time to time to facilitate the
delivery of such services to Tenant at the Premises and to the Building and
Project, including without limitation allowing Landlord and Landlord's suppliers
or providers, and their respective agents and contractors, reasonable access to
the Premises for the purpose of installing, maintaining, repairing, replacing or
upgrading such service or any equipment or machinery associated therewith. The
---
rent for a pro-rata portion of the premises obviously and directly affected by
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an occurrence or event that is the Landlord's responsibility for maintenance,
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for five days or greater with a written notice provided to Landlord, will be
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abated beginning the sixth day until remedied.
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10
C. Tenant shall pay, upon demand, for all utilities furnished to the Premises,
or if not separately billed to or metered to Tenant, Tenant's Proportionate
Share of all charges jointly serving the Project in accordance with Paragraph 7.
All sums payable under this Paragraph 15 shall constitute Additional Rent
hereunder.
16. SUBORDINATION
Without the necessity of any additional document being executed by Tenant for
the purpose of effecting a subordination, this Lease shall be and is hereby
declared to be subject and subordinate at all times to: (a) all ground leases or
underlying leases which may now exist or hereafter be executed affecting the
Premises and/or the land upon which the Premises and Project are situated, or
both; and (b) any mortgage or deed of trust which may now exist or be placed
upon the Building, the Project and/or the land upon which the Premises or the
Project are situated, or said ground leases or underlying leases, or Landlord's
interest or estate in any of said items which is specified as security.
Notwithstanding the foregoing, Landlord shall have the right to subordinate or
cause to be subordinated any such ground leases or underlying leases or any such
liens to this lease. If any ground lease or underlying lease terminates for any
reason or any mortgage or deed of trust is foreclosed or a conveyance in lieu of
foreclosure is made for any reason, Tenant shall, notwithstanding any
subordination, attornment to and become the Tenant of the successor in interest
to Landlord provided that Tenant shall not be disturbed in its possession under
this Lease by such successor in interest so long as Tenant is not in default
under this Lease. Within ten (10) business days after request by Landlord,
--------
Tenant shall execute and deliver any additional documents evidencing Tenant's
attornment or the subordination of this Lease with respect to any such ground
leases or underlying leases or any such mortgage or deed of trust, in the form
requested by Landlord or by any ground landlord, mortgagee, or beneficiary under
a deed of trust, subject to such nondisturbance requirement. If requested in
writing by Tenant, Landlord shall use commercially reasonable efforts to obtain
a subordination, nondisturbance and attornment agreement for the benefit of
Tenant reflecting the foregoing from any ground landlord, mortgagee or
beneficiary, at Tenant's expense, subject to such other terms and conditions as
the ground landlord, mortgagee or beneficiary may require.
17. FINANCIAL STATEMENTS
Landlord will be provided with full and complete financial statements
representing recent reports for the entity signing this lease.
18. ESTOPPEL CERTIFICATE
Tenant agrees from time to time, within ten (10) business days after request of
Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating that this Lease is in full force and effect, that this Least
has not been modified (or stating all modifications, written or oral, to this
Lease), the date to which Rent has been paid, the unexpired portion of this
Lease, that them are no current defaults by Landlord or Tenant under this Lease
(or specifying any such defaults), that the leasehold estate granted by this
Lease is the sole interest of Tenant in the Premises and/or the land at which
the Premises are situated, and such other matters pertaining to this Lease as
may be reasonably requested by Landlord or any mortgagee, beneficiary, purchaser
or prospective purchaser of the Building or Project or any may be relied upon by
any mortgagee, beneficiary, purchaser or prospective purchaser of the Building
or Project or any interest therein. Landlord and Tenant intend that any
statement delivered pursuant to this Paragraph may be relied upon by any
mortagee, beneficiary, purchaser or prospective purchaser of the Building or
Project or any interest therein. The parties agree that Tenant's obligation to
furnish such estoppel certificates in a timely fashion is a material inducement
for Landlord's execution of thus Lease, and shall be an event of default
(without any xxxx period that might be provided under Paragraph 26.A(3) of this
Lease) if Tenant fails to fully comply or makes any material misstatement in any
such certificate.
19. SECURITY DEPOSIT
Tenant agrees to deposit with Landlord upon execution of this Lease, a security
deposit as stated in the Basic Lease Information (the "Security Deposit"), which
sum shall be held and owned by Landlord, without obligation to pay interest, as
security for the performance of Tenant's covenants and obligations under this
Lease. The Security Deposit is not an advance rental deposit or a measure of
damages incurred by Landlord in case of Tenant's default. Upon the occurrence of
any event of default by Tenant, Landlord may from time to time, without
prejudice to any other remedy provided herein or by law, use such fund as a
credit to the extent necessary to credit against any arrears of Rent or other
payments due to Landlord hereunder, and any other damage, injury, expense or
liability caused by such event of fault, and Tenant shall pay to Landlord, on
demand, the amount so applied in order to restore the Security Deposit to its
original amount. Although the Security Deposit shall be deemed the property of
Landlord, any remaining balance of such deposit shall be returned by Landlord to
Tenant at such time after termination of this Lease that all of Tenant's
obligations under this Lease have been fulfilled, reduced by such amounts as may
be required by Landlord to remedy defaults on the part of Tenant in the payment
of Rent or other obligations of Tenant under this Lease, to repair damage to the
Premises, Building or Project caused by Tenant or any Tenant's Parties and to
clean the Premises. Landlord may use and commingle the Security Deposit with
other funds of Landlord.
20. LIMITATION OF TENANT'S REMEDIES
The obligations and liability of Landlord to Tenant for any default by Landlord
under the terms of this Lease are not personal obligations of Landlord or of the
individual or other partners of Landlord or its or their partners, directors,
officers, or shareholders, and Tenant agrees to look solely to Landlord's
interest in the Project for the recovery of any amount from Landlord, and shall
not look to other assets of Landlord nor seek recourse against the assets of the
individual or other partners of Landlord or its or their partners, directors,
officers or shareholders. Any lien obtained to enforce any such judgment and any
levy of execution thereon shall be subject and subordinate to any lien, mortgage
or deed of trust on the project. Under no circumstances shall Tenant have the
right to offset against or recoup Rent or other payments due and to become due
to Landlord, hereunder except as expressly provided in Paragraph 23.B below,
which Rent and other payments shall be absolutely due and payable hereunder in
accordance with the terms hereof.
21. ASSIGNMENT AND SUBLETTING
A. (1) General. This Lease has been negotiated to be and is granted as
-- an accommodation to Tenant. Accordingly, this Lease is personal to Tenant,
and Tenant's rights granted hereunder do not include the right to assign
this Lease or sublease the Premises, or to receive any excess, either in
installments or lump sum, over the Rent which is expressly reserved by
Landlord as hereinafter provided, except as otherwise expressly hereinafter
provided. Tenant shall not assign or pledge this Lease or sublet the
Premises or any part thereof, whether voluntarily or by operation of law,
or permit the use or occupancy of the Premises or any part thereof by
anyone other than Tenant, or suffer or permit any such assignment, pledge,
subleasing or occupancy, without Landlord's prior written consent except
as provided herein. If Tenant desires to assign this Lease or sublet any or
all of the Premises, Tenant shall give Landlord written notice (the
"Transfer Notice") at least thirty (30) days prior to the anticipated
-----------
effective date of the proposed assignment or sublease, which shall contain
all of the information reasonably requested by Landlord to address
Landlord's decision criteria specified hereinafter. Landlord shall then
have a period of fifteen (15) days following receipt of the Transfer
------------
Notice to notify Tenant in writing that Landlord elects either: (i) to
terminate this Lease as to the space so affected as of the date so
requested by Tenant; or (ii) to consent to the proposed assignment or
sublease,
11
subject, however, to Landlord's prior written consent of the proposed
assignee or subtenant and of any related documents or agreements associated
with the assignment or sublease. If Landlord should fail to notify Tenant
in writing of such election within said period, Landlord shall be deemed to
have waived option (i) above, but written consent by Landlord of the
proposed assignee or subtenant shall still be required. Landlord's consent
to a proposed assignment or sublease shall not be unreasonably withheld.
Consent to any assignment or subletting shall not constitute consent to any
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subsequent transaction to which this paragraph 21 applies. A transfer of
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this lease to an affiliate that owns more than or is owned more than 51% by
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the Tenant will not require approval as described above, but will require
---------------------------------------------------------------------------
written notice prior to a thirty (30) day period before the transfer.
--------------------------------------------------------------------
(2) Conditions of Landlord's Consent. Without limiting the other instances in
which it may be reasonable for Landlord to withhold Landlord's consent to
an assignment or subletting, Landlord and Tenant acknowledge that it shall
be reasonable for Landlord to withhold Landlord's consent in the following
instances: if the proposed assignee does not agree to be bound by and
assume the obligations of Tenant under this Lease in form and substance
satisfactory to Landlord; the use of the Premises by such proposed assignee
or subtenant would not be a Permitted Use or would violate any exclusivity
or other arrangement which Landlord has with any other tenant or occupant
or any Regulation or would increase the Occupancy Density or Parking
Density of the Building or Project, or would otherwise result in an
undesirable tenant mix for the Project as determined by Landlord; the
proposed assignee or subtenant is not of sound financial condition as
determined by Landlord in Landlord's sole discretion; the proposed assignee
or subtenant is a governmental agency; the proposed assignee or subtenant
does not have a good reputation as a tenant of property or a good business
reputation; the proposed assignee or subtenant is a person with whom
Landlord is negotiating to lease space in the Project or is a present
tenant of the Project; the assignment or subletting would entail any
Alterations which would lessen the value of the leasehold improvements in
the Premises or use of any Hazardous Materials or other noxious use or use
which may disturb other tenants of the Project. Failure by or refusal of
Landlord to consent to a proposed assignee or subtenant shall not cause a
termination of this Lease. Upon a termination under Paragraph 2l.A.(1)(i),
Landlord may lease the Premises to any party, including parties with whom
Tenant has negotiated an assignment or sublease, without incurring any
liability to Tenant. At the option of Landlord, a surrender and termination
of this Lease shall operate as an assignment to Landlord of some or all
subleases or subtenancies. Landlord shall exercise this option by giving
notice of that assignment to such subtenants on or before the effective
date of the surrender and termination. In connection with each request for
assignment or subletting, Tenant shall pay to Landlord Landlord's standard
fee for approving such requests, as well as all costs reasonably incurred
----------
by Landlord or any mortgagee or ground lessor in approving each such
request and effecting any such transfer, including, without limitation,
reasonable attorneys' fees. Landlord costs will not exceed $500.00 if
-----------------------------------------
complete and accurate information is provided within the one submission of
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all documents.
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B. Bonus Rent. Any Rent or other consideration realized by Tenant under any
such sublease or assignment in excess of the Rent payable hereunder, after
amortization of a reasonable brokerage commission incurred by Tenant, shall be
divided and paid, fifty percent (50%) to Tenant, fifty percent (50%)
----- --- ----- ---
to Landlord. In any subletting or assignment undertaken by Tenant, Tenant shall
diligently seek to obtain the maximum rental amount available in the marketplace
for comparable space available for primary leasing.
C. Corporation. If Tenant is a corporation, a transfer of corporate shares by
sale, assignment, bequest, inheritance, operation of law or other disposition
(including such a transfer to or by a receiver or trustee in federal or state
bankruptcy, insolvency or other proceedings) resulting in a change in the
present control of such corporation or any of its parent corporations by the
person or persons owning a majority of said corporate shares shall constitute an
assignment for purposes of this Lease.
D. Unincorporated Entity. If Tenant is a partnership, joint venture,
unincorporated limited liability company or other unincorporated business form,
a transfer of the interest of persons, firms or entities responsible for
managerial control of Tenant by sale, assignment, bequest, inheritance,
operation of law or other disposition, so as to result in a change in the
present control of said entity and/or of the underlying beneficial interests of
said entity and/or a change in the identity of the persons responsible for the
general credit obligations of said entity shall constitute an assignment for all
purposes of this Lease.
E. Liability. No assignment or subletting by Tenant, permitted or otherwise,
shall relieve Tenant of any obligation under this Lease or alter the primary
liability of the Tenant named herein for the payment of Rent or for the
performance of any other obligations to be performed by Tenant, including
obligations contained in Paragraph 25 with respect to any assignee or subtenant.
Landlord may collect rent or other amounts or any portion thereof from any
assignee, subtenant, or other occupant of the Premises, permitted or otherwise,
and apply the net rent collected to the Rent payable hereunder, but no such
collection shall be deemed to be a waiver of this Paragraph 21, or the
acceptance of the assignee, subtenant or occupant as tenant, or a release of
Tenant from the further performance by Tenant of the obligations of Tenant under
this Lease. Any assignment or subletting which conflicts with the provisions
hereof shall be void.
22. AUTHORITY
Landlord represents and warrants that it has full right and authority to enter
into this Lease and to perform all of Landlord's obligations hereunder and that
all persons signing this Lease on its behalf are authorized to do. Tenant and
the person or persons, if any, signing on behalf of Tenant, jointly and
severally represent and warrant that Tenant has full right and authority to
enter into this Lease, and to perform all of Tenant's obligations hereunder, and
that all persons signing this Lease on its behalf are authorized to do so.
23. CONDEMNATION
A. Condemnation Resulting in Termination. If the whole or any substantial part
of the Premises should be taken or condemned for any public use under any
Regulation, or by right of eminent domain, or by private purchase in lieu
thereof, and the taking would prevent or materially interfere with the Permitted
Use of the Premises, either party shall have the right to terminate this Lease
at its option. If any material portion of the Building or Project is taken or
condemned for any public use under any Regulation, or by right of eminent
domain, or by private purchase in lieu thereof, Landlord may terminate this
Lease at its option. In either of such events, the Rent shall be abated during
the unexpired portion of this Lease, effective when the physical taking of said
Premises shall have occurred.
B. Condemnation Not Resulting in Termination. If a portion of the Project of
which the Premises are a part should be taken or condemned for any public use
under any Regulation, or by right of eminent domain, or by private purchase in
lieu thereof, and the taking prevents or materially interferes with the
Permitted Use of the Premises, and this Lease is not terminated as provided in
Paragraph 23.A. above, the Rent payable hereunder during the unexpired portion
of this Lease shall be reduced, beginning on the date when the physical taking
shall occurred, to such amount as may be fair and reasonable under all of the
circumstances, but only after giving Landlord credit for all sums received or to
be received by Tenant by the condemning authority. Notwithstanding anything to
the contrary contained in this Paragraph, if the temporary use or occupancy of
any part of the Premises shall be taken or appropriated under power of eminent
domain during the Term, this Lease shall be and remain unaffected by such taking
or appropriation and Tenant shall continue to pay in full all Rent payable
hereunder by Tenant during the Term; in the event of any such temporary
appropriation or taking, Tenant shall be entitled to receive that portion of any
award which represents compensation for the use of or occupancy of the Premises
during the Term, and Landlord shall be entitled to receive that portion of any
award which represents the cost of restoration of the Premises and the use and
occupancy or the Premises.
12
C. Award. Landlord shall be entitled to (and Tenant shall assign to Landlord)
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 any sums paid by
virtue of such proceedings, whether or not attributable to the value of any
unexpired portion of this Lease, except as expressly provided in this Lease.
Notwithstanding the foregoing, any compensation specifically and separately
awarded Tenant for Tenant's personal property and moving costs, shall be and
remain the property of Tenant.
D. Waiver of CCP(S)1265.130 Each party waives the provisions of California
Civil Code Procedure Section 1265.130 allowing either party to petition the
superior court to terminate this Lease as a result of a partial taking.
24. CASUALTY DAMAGE
A. General. If the Premises or Building should be damaged or destroyed by
fire, tornado, or other casualty (collectively, "Casualty"), Tenant shall give
immediate written notice thereof to Landlord. Within thirty (30) days after
Landlord's receipt of such notice, Landlord shall notify Tenant whether in
Landlord's estimation material restoration of the Premises can reasonably be
made within ninety (90) days from the date of such notice and receipt of
-----------
required permits for such restoration. Landlord's determination shall be binding
on Tenant.
B. Within 180 Days. If the Premises or Building should be damaged by
Casualty to such extent that material restoration can in Landlord's estimation
be reasonably completed within ninety (90) days after the date of such notice
-----------
and receipt of required permits for such restoration, this Lease shall not
terminate. Provided that insurance proceeds are received by Landlord to fully
repair the damage, Landlord shall proceed to rebuild and repair the Premises in
the manner determined by Landlord, except that Landlord shall not be required to
rebuild, repair or replace any part of the Alterations which may have been
placed on or about the Premises by Tenant. If the Premises are untenantable in
whole or in part following such damage, the Rent payable hereunder during the
period in which they are untenantable shall be abated proportionately, but only
to the extent of rental abatement insurance proceeds received by Landlord during
the time and to the extent the Premises are unfit for occupancy.
C. Greater than 180 Days. If the Premises or Building should be damaged by
Casualty to such extent that rebuilding or repairs cannot in Landlord's
estimation be reasonably completed within ninety (90) days after the date of
-----------
such notice and receipt of required permits for such rebuilding or repair, then
Landlord shall have the option of either: (1) terminating this Lease effective
upon the date of the occurrence of such damage, in which event the Rent shall be
abated during the unexpired portion of this Lease; or (2) electing to rebuild or
repair the Premises diligently and in the manner determined by Landlord.
Landlord shall notify Tenant of its election within thirty (30) days after
Landlord's receipt of notice of the damage or destruction. Notwithstanding the
above, Landlord shall not be required to rebuild, repair or replace any part of
any Alterations which may have been placed, on or about the Premises by Tenant.
If the Premises are untenantable in whole or in part following such damage, the
Rent payable hereunder during the period in which they are untenantable shall be
abated proportionately, but only to the extent of rental abatement insurance
proceeds received by Landlord during the time and to the extent the Premises are
unfit for occupancy.
D. Tenant's Fault. Notwithstanding anything herein to the contrary, if the
Premises or any other portion of the Building are damaged by Casualty resulting
from the fault, negligence, or breach of this Lease by Tenant or any of Tenant's
Parties, Base Rent and Additional Rent shall not be diminished during the repair
of such damage and Tenant shall be liable to Landlord for the cost and expense
of the repair and restoration of the Building caused thereby to the extent such
cost and expense is not covered by insurance proceeds.
E. Insurance Proceeds. Notwithstanding anything herein to the contrary, if the
Premises or Building are damaged or destroyed and are not fully covered by the
insurance proceeds received by Landlord or if the holder of any indebtedness
secured by a mortgage or deed of trust covering the Premises requires that the
insurance proceeds be applied to such indebtedness, then in either cast Landlord
shall have the right to terminate this Lease by delivering written notice of
termination to Tenant within thirty (30) days after the date of notice to
Landlord that said damage or destruction is not fully covered by insurance or
such requirement is made by any such holder, as the case may be, whereupon this
Lease shall terminate.
F. Waiver. This Paragraph 24 shall be Tenant's sole and exclusive remedy in
the event of damage or destruction to the Premises or the Building. As a
material inducement to Landlord entering into this Lease, Tenant hereby waives
any rights it may have under Sections 1932, 1933(4), 1941 or 1942 of the Civil
Code of California with respect to any destruction of the Premises, Landlord's
obligation for tenantability of the Premises and Tenant's right to make repairs
and deduct the expenses of such repairs, or under any similar law, statute or
ordinance now or hereafter in effect.
G. Tenant's Personal Property. In the event of any damage or destruction of
the Premises or the Building, under no circumstances shall Landlord be required
to repair any injury or damage to, or make any repairs to or replacements of,
Tenant's personal property.
25. HOLDING OVER
Unless Landlord expressly consents in writing to Tenant's holding over, Tenant
shall be unlawfully and illegally in possession of the Premises, whether or not
Landlord accepts any rent from Tenant or any other person while Tenant remains
in possession of the Premises without Landlord's written consent. If Tenant
shall retain possession of the Premises or any portion thereof without
Landlord's consent following the expiration of this Lease or sooner termination
for any reason, then Tenant shall pay to Landlord for each day of such retention
150% the amount of daily rental as of the last month prior to the date of
---
expiration or earlier termination. Tenant shall also indemnify, defend, protect
and hold Landlord harmless from any loss, liability or cost, including
consequential and incidental damages and reasonable attorneys fees, incurred by
Landlord resulting from delay by Tenant in surrendering the Premises, including,
without limitation, any claims made by the succeeding tenant founded on such
delay. Acceptance of Rent by Landlord following expiration or earlier
termination of this Lease, or following demand by Landlord for possession of the
Premises, shall not constitute a renewal of this Lease, and nothing contained in
this Paragraph 25 shall waive Landlord's right of reentry or any other right.
Additionally, if upon expiration or earlier termination of this Lease, or
following demand by Landlord for possession of the Premises, Tenant has not
fulfilled its obligation with respect to repairs and cleanup of the Premises or
any other Tenant obligations as set forth in this Lease, then Landlord shall
have the right to perform any such obligations as it deems necessary at Tenant's
sole cost and expense, and any time required by Landlord to complete such
obligations shall be considered a period of holding over and the terms of this
Paragraph 25 shall apply. The provisions of this Paragraph 25 shall survive
any expiration or earlier termination of this Lease.
26. DEFAULT
A. Events of Default. The occurrence of any of the following shall constitute
an event of default on the part of Tenant:
(i) Abandonment. Abandonment or vacation of the Premises for a
continuous period in excess of five (5) days. Tenant waives any right to
notice Tenant may have under Section 1951.3 of the Civil Code of the
State of California, the terms of this Paragraph 26.A. being deemed such
notice to Tenant as required by said Section 1951.3.
(2) Nonpayment of Rent: Failure to pay any installment of Rent or
any other amount due and payable hereunder within seven (7) business days
-----------------------
of the date when said payment is due, as to which time is of the
--
essence.
13
(3) Other Obligations. Failure to perform any obligation, agreement or
covenant under this Lease other than those matters specified in
subparagraphs (1) and (2) of this Paragraph 26.A., such failure continuing
for fifteen (15) days after written notice of such failure, as to which
time is of the essence.
(4) General Assignment. A general assignment by Tenant for the benefit
of creditors.
(5) Bankruptcy. The filing of any voluntary petition in bankruptcy by
Tenant, or the filing of an involuntary petition by Tenant's creditors,
which involuntary petition remains undischarged for a period of thirty (30)
days. If under applicable law, the trustee in bankruptcy or Tenant has the
right to affirm this Lease and continue to perform the obligations of
Tenant hereunder, such trustee or Tenant shall, in such time period as may
be permitted by the bankruptcy court having jurisdiction, cure all defaults
of Tenant hereunder outstanding as of the date of the affirmance of this
Lease and provide to Landlord such adequate assurances as may be necessary
to ensure Landlord of the continued performance of Tenant's obligations
under this Lease.
(6) Receivership. The employment of a receiver to take possession of
substantially all of Tenant's assets or Tenant's leasehold of the Premises,
if such appointment remains undismissed or undischarged for a period of
thirty (30) days after the order therefor.
-----------
(7) Attachment. The attachment, execution or other judicial seizure
of all or substantially all of Tenant's assets or Tenant's leasehold of the
Premises, if such attachment or other seizure remains undismissed or
undischarged for a period of thirty (30) days after the levy thereof.
-----------
(8) Insolvency. The admission by Tenant in writing of its inability to
pay its debts as they become due.
B. Remedies Upon Default.
(1) Termination. In the event of the occurrence of any event of
default, Landlord shall have the right to give a written termination notice
to Tenant, and on the date specified in such notice, Tenant's right to
possession shall terminate, and this Lease shall terminate unless on or
before such date all Rent in arrears and all costs and expenses incurred by
or on behalf of Landlord hereunder shall have been paid by Tenant and all
other events of default of this Lease by Tenant at the time existing shall
have been fully remedied to the satisfaction of Landlord. At any time after
such termination, Landlord may recover possession of the Premises or any
part thereof and expel and remove therefrom Tenant and any other person
occupying the same, including any subtenant or subtenants notwithstanding
Landlord's consent to any sublease, by any lawful means, and again
repossess and enjoy the Premises without prejudice to any of the remedies
that Landlord may have under this Lease, or at law or equity by any reason
of Tenant's default or of such termination. Landlord hereby reserves the
right, but shall not have the obligation, to recognize the continued
possession of any subtenant. The delivery or surrender to Landlord by or on
behalf of Tenant of keys, entry codes, or other means to bypass security at
the Premises shall not terminate this Lease.
(2) Continuation After Default. Even though an event of default may
have occurred, this Lease shall continue in effect for so long as Landlord
does not terminate Tenant's right to possession under Paragraph 26.B.(l)
hereof, and Landlord may enforce all of Landlord's rights and remedies
under this Lease and at law or in equity, including without limitation, the
right to recover Rent as it becomes due, and Landlord, without terminating
this Lease, may exercise all of the rights and remedies of a landlord under
Section 1951.4 of the Civil Code of the State of California or any
successor code section. Acts of maintenance, preservation or efforts to
lease the Premises or the appointment of a receiver under application of
Landlord to protect Landlord's interest under this Lease or other entry by
Landlord upon the Premises shall not constitute an election to terminate
Tenant's right to possession.
C. Damages After Default. Should Landlord terminate this Lease pursuant to the
provisions of Paragraph 26.B.(1) hereof, Landlord shall have the rights and
remedies of a Landlord provided by Section 1951.2 of the Civil Code of the State
of California, or any successor code sections. Upon such termination, in
addition to any other rights and remedies to which Landlord may be entitled
under applicable law or at equity, Landlord shall be entitled to recover from
Tenant: (1) the worth at the time of award of the unpaid Rent and other amounts
which had been earned at the time of termination, (2) the worth at the time of
award of the amount by which the unpaid Rent and other amounts that would have
been earned after the date of termination until the time of award exceeds the
amount of such Rent loss that Tenant proves could have been reasonably avoided;
(3) the worth at the time of award of the amount by which the unpaid Rent and
other amounts for the balance of the Term after the time of award exceeds the
amount of such Rent loss that the Tenant proves could be reasonably avoided; and
(4) any other amount and court costs necessary to compensate Landlord for all
detriment proximately caused by Tenant's failure to perform Tenant's obligations
under this Lease or which, in the ordinary course of things, would be likely to
result therefrom. The "worth at the time of award" as used in (1) and (2) above
shall be computed at the Applicable Interest Rate (defined below). The "worth at
the time of award" as used in (3) above shall be computed by discounting such
amount at the Federal Discount Rate of the Federal Reserve Bank of San Francisco
at the time of award plus one percent (1%). If this Lease provides for any
periods during the Term during which Tenant is not required to pay Base Rent or
if Tenant otherwise receives a Rent concession, then upon the occurrence of an
event of default, Tenant shall owe to Landlord the full amount of such Base Rent
or value of such Rent concession, plus interest at the Applicable Interest Rate,
calculated from the date that such Base Rent or Rent concession would have been
payable.
D. Late Charge. In addition to its other remedies, Landlord shall have the
right without notice or demand to add to the amount of any payment required to
be made by Tenant hereunder, and which is not paid and received by Landlord on
or before the first day of each calendar month, an amount equal to five percent
(5%) of the delinquency for each month or portion thereof that the delinquency
remains outstanding to compensate Landlord for the loss of the use of the amount
not paid and the administrative costs caused by the ????, the parties agreeing
that Landlord's damage by virtue of such delinquencies would be extremely
difficult and impracticable to compute and the amount stated herein represents
a reasonable estimate thereof. Any waiver by Landlord of any late charges or
failure to claim the same shall not constitute a waiver of other late charges or
any other remedies available to Landlord.
E. Interest. Interest shall accrue on all sums not paid when due hereunder at
the lesser of twelve percent (12%) per annum or the maximum interest rate
------ -----
allowed by law ("Applicable Interest Rate") from the due date until paid.
F. Remedies Cumulative. All rights, privileges and election or remedies of the
parties are cumulative and not alternative, to the extent permitted by law and
except as otherwise provided herein.
27. LIENS
Tenant shall at all times keep the Premises and the Project free from liens
arising out of or related to work or services performed, materials or supplies
furnished or obligations incurred by or on behalf of Tenant or in connection
with work made, suffered or done by or on behalf of Tenant in or on the Premises
or Project. If Tenant shall not, within ten (10) days following the imposition
of any such lien, cause the
14
same to be released of record by payment or posting of a proper bond, Landlord
shall have, in addition to all other remedies provided herein and by law, the
right, but not the obligation, to cause the same to be released by such means as
Landlord shall deem proper, including payment of the claim giving rise to such
lien. All sums paid by Landlord on behalf of Tenant and all expenses incurred by
Landlord in connection therefor shall be payable to Landlord by Tenant on demand
with interest at the Applicable Interest Rate as Additional Rent. Landlord shall
have the right at all times to post and keep posted on the Premises any notices
permitted or required by law, or which Landlord shall deem proper, for the
protection of Landlord, the Premises, the Project and any other party having an
interest therein, from mechanics' and materialmen's liens, and Tenant shall give
Landlord not less than ten (10) business days prior written notice of the
commencement of any work in the Premises or Project which could lawfully give
rise to a claim for mechanics' or materialmen's liens to permit Landlord to post
and record a timely notice of non-responsibility, as Landlord may elect to
proceed or as the law may from time to time provide, for which purpose, if
Landlord shall so determine, Landlord may enter the Premises. Tenant shall not
remove any such notice posted by Landlord without Landlord's consent, and in any
event not before completion of the work which could lawfully give rise to a
claim for mechanics' or materialmen's liens.
29. TRANSFERS BY LANDLORD
In the event of a sale or conveyance by Landlord of the Building or a
foreclosure by any creditor of Landlord, the same shall operate to release
Landlord from any liability upon any of the covenants or conditions, express or
implied, herein contained in favor of Tenant, to the extent required to be
performed after the passing of title to Landlord's successor-in-interest. In
such event, Tenant agrees to look solely to the responsibility of the successor-
in-interest of Landlord under this Lease with respect to the performance of the
covenants and duties of "Landlord" to be performed after the passing of title to
Landlord's successor-in-interest. This Lease shall not be affected by any such
sale and Tenant agrees to attorn to the purchaser or assignee. Landlord's
successor(s)-in-interest shall not have liability to Tenant with respect to the
failure to perform any of the obligations of "Landlord," to the extent required
to be performed prior to the date such successor(s)-in-interest became the owner
of the Building.
30. RIGHT OF LANDLORD TO PERFORM TENANT'S COVENANTS
All covenants and agreements to be performed by Tenant under any of the terms of
this Lease shall be performed by Tenant at Tenant's sole cost and expense and
without any abatement of Rent. If Tenant shall fail to pay any sum of money,
other than Base Rent, required to be paid by Tenant hereunder or shall fail to
perform any other act on Tenant's part to be performed hereunder, including
Tenant's obligations under Paragraph 11 hereof, and such failure shall continue
for fifteen (15) days after notice thereof by Landlord, in addition to the other
rights and remedies of Landlord, Landlord may make any such payment and perform
any such act on Tenant's part. In the case of an emergency, no prior
notification by Landlord shall be required. Landlord may take such actions
without any obligation and without releasing Tenant from any of Tenant's
obligations. All sums so paid by Landlord and all incidental costs incurred by
Landlord and interest thereon at the Applicable Interest Rate, from the date of
payment by Landlord, shall bc paid to Landlord on demand as Additional Rent.
31. WAIVER
If either Landlord or Tenant waives the performance of any term, covenant or
condition contained in this Lease, such waiver shall not be deemed to be a
waiver of any subsequent breach of the same or any other term, covenant or
condition contained herein, or constitute a course of dealing contrary to the
expressed terms of this Lease. The acceptance of Rent by Landlord shall not
constitute a waiver of any preceding breach by Tenant of any term, covenant or
condition of this Lease, regardless of Landlord's knowledge of such preceding
breach by the time Landlord accepted such Rent. Failure by Landlord to enforce
any of the terms, covenants or conditions of this Lease for any length of time
shall not be deemed to waive or decrease the right of Landlord to insist
thereafter upon strict performance by Tenant. Waiver by Landlord of any term,
covenant or condition contained in this Lease may only be made by a written
document signed by Landlord, based upon full knowledge of the circumstances.
32. NOTICES
Each provision of this Lease or of any applicable governmental laws, ordinances,
regulations and other requirements with reference to sending, mailing, or
delivery of any notice or the making of any payment by Landlord or Tenant to the
other shall be deemed to be complied with when and if the following steps are
taken:
A. Rent. All Rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at Landlord's Remittance Address set
forth in the Basic Lease Information, or at such other address as Landlord may
specify from time to time by written notice delivered in accordance herewith.
Tenant's obligation to pay Rent and any other amounts to Landlord under the
terms of this Lease shall not be deemed satisfied until such Rent and other
amounts have been actually received by Landlord.
B. Other. All notices, demands, consents and approvals which may or are
required to be given by either party to the other hereunder shall be in writing
and either personally delivered, sent by commercial overnight courier, mailed,
certified or registered, postage prepaid or sent by facsimile with confirmed
receipt (and with an original sent by commercial overnight courier), and in each
case addressed to the party to be notified at the Notice Address for such party
as specified in the Basic Lease Information or to such other place as the party
to be notified may from time to time designate by at least fifteen (15) days
notice to the notifying party. Notices shall be deemed served upon receipt or
refusal 13 accept delivery. Tenant appoints as its agent to receive the service
of all default notices and notice of commencement of unlawful detainer
proceedings the person in charge of or apparently in charge of occupying the
Premises at the time, and, if there is no such person, then such service may be
made by attaching the same on the main entrance of the Premises.
C. Required Notices. Tenant shill immediately notify Landlord in writing of
any notice of a violation or a potential or alleged violation of any Regulation
that relates to the Premises or the Project, or of any inquiry, investigation,
enforcement or other action that is instituted or threatened by any governmental
or regulatory agency against Tenant or any other occupant of the Premises, or
any claim that is instituted or threatened by any third party that relates to
the Premises or the Project.
15
33. ATTORNEYS' FEES
If Landlord places the enforcement of this Lease, or any part thereof, or the
collection of any Rent due, or to become due hereunder, or recovery of
possession of the Premises in the hands of an attorney, Tenant shall pay to
Landlord, upon demand, Landlord's reasonable attorneys' fees and court costs,
whether incurred without trial, at trial, appeal or review. In any action which
Landlord or Tenant brings to enforce its respective rights hereunder, the
unsuccessful party shall pay all costs incurred by the prevailing party
including reasonable attorneys' fees, to be fixed by the court, and said costs
and attorneys' fees shall be a part of the judgment in said action. (This is a
----------
mutual right)
-------------
34. SUCCESSORS AND ASSIGNS
This Lease shall be binding upon and inure to the benefit of Landlord, its
successors and assigns, and shall be binding upon and inure to the benefit of
Tenant, its successors, and to the extent assignment is approved by Landlord as
provided hereunder, Tenant's assigns.
35. FORCE MAJEURE
If performance by a party of any portion of this Lease is made impossible by any
prevention, delay, or stoppage caused by strikes, lockouts, labor disputes, acts
of God, inability to obtain services, labor, or materials or reasonable
substitutes for those items, government actions, civil commotions, fire or other
casualty, or other causes beyond the reasonable control of the party obligated
to perform, performance by that party for a period equal to the period of that
prevention, delay, or stoppage is excused. Tenant's obligation to pay Rent,
however, is not excused by this Paragraph 35.
36. SURRENDER OF PREMISES
Tenant shall, upon expiration or sooner termination of this Lease, surrender the
Premises to Landlord in the same condition as existed on the date Tenant
originally took possession thereof, including, but not limited to, all interior
walls cleaned, all holes in walls repaired, all carpets shampooed
and cleaned, and all floors cleaned, waxed, and free of any Tenant-introduced
marking or painting, all to the reasonable satisfaction of Landlord. Tenant
shall remove all of its debris from the Project. At or before the time of
surrender, Tenant shall comply with the terms of Paragraph 12.A. hereof with
respect to Alterations to the Premises and all other matters addressed in such
Paragraph. If the Premises are not so surrendered at the expiration or sooner
termination of this Lease, the provisions of Paragraph 25 hereof shall apply.
All keys to the Premises or any part thereof shall bc surrendered to Landlord
upon expiration or sooner termination of the Term. Tenant shall give written
notice to Landlord at least thirty (30) days prior to vacating the Premises and
shall meet with Landlord for a joint inspection of the premises at the time
of vacating, but nothing contained herein shall be construed as an extension of
the Term or as a consent by Landlord to any holding over by Tenant. In the event
of Tenant's failure to give such notice or participate in such joint inspection,
Landlord's inspection at or after Tenant's vacating the Premises shall
conclusively be deemed correct for purposes of determining Tenant's
responsibility for repairs and restoration. Any delay caused by Tenant's failure
to carry out its obligations under this Paragraph 36 beyond the term hereof,
shall constitute unlawful and illegal possession of Premises under Paragraph 25
hereof.
37. PARKING
So long as Tenant is occupying the Premises, Tenant and Tenant's Parties
shall have the right to use up to the number of parking spaces, if any,
specified in the Basic Lease Information on an unreserved, nonexclusive, first
come, first served basis, for passenger-size automobiles, in the parking areas
in the Project designated from time to time by Landlord for use in common by
tenants of the Building.
Tenant may request additional parking spaces from time to time and if
Landlord in its sole discretion agrees to make such additional spaces
available for use by Tenant, such spaces shall be provided on a month-to-month
unreserved and nonexclusive basis (unless otherwise agreed in writing by
Landlord), and subject to such parking charges as Landlord shall determine, and
shall otherwise be subject to such terms and conditions as Landlord may require.
Tenant shall at all times comply and shall cause all Tenant's Parties and
visitors to comply with all Regulations and any rules and regulations
established from time to time by Landlord relating to parking at the Project,
including any keycard, sticker or other identification or entrance system, and
hours of operation, as applicable.
Landlord shall have no liability for any damage to property or other items
located in the parking areas of the Project, nor for any personal injuries or
death arising out of the use of parking areas in the Project by Tenant or any
Tenant's Parties. Without limiting the foregoing, if Landlord arranges for the
parking areas to be operated by an independent contractor not affiliated with
Landlord, Tenant acknowledges that Landlord shall have no liability for claims
arising through acts or omissions of such independent contractor. In all
events, Tenant agrees to look first to its insurance carrier and to require that
Tenant's Parties look first to their respective insurance carriers for payment
of any losses sustained in connection with any use of the parking areas.
Landlord reserves the right to assign specific spaces, and to reserve
spaces for visitors, small cars, disabled persons or for other tenants or
guests, and Tenant shall not park and shall not allow Tenant's Parties to park
in any such assigned or reserved spaces. Tenant may validate visitor parking by
such method as Landlord may approve, at the validation rate from time to time
generally applicable to visitor parking. Landlord also reserves the right to
alter, modify, relocate or close all or any portion of the parking areas in
order to make repairs or perform maintenance service, or to restripe or renovate
the parking areas, or if required by casualty, condemnation, act of God,
Regulations or for any other reason deemed reasonable by Landlord.
Tenant shall pay to Landlord (or Landlord's parking contractor, if so
directed in writing by Landlord), as Additional Rent hereunder, the monthly
charges established from time to time by Landlord for parking in such parking
areas (which shall initially bc the charge specified in the Basic Lease
Information, as applicable). Such parking charges shall be payable in advance
with Tenant's payment of Basic Rent. No deductions from the monthly parking
charge shall be made for days on which the Tenant does not use any of the
parking spaces entitled to be used by Tenant.
38. MISCELLANEOUS
A. General. The term "Tenant" or any pronoun used in place thereof shall
indicate and include the masculine or feminine, the singular or plural number,
individuals, firms or corporations, and their respective successors, executors,
administrators and permitted assigns, according to the context hereof.
B. Time. Time is of the essence regarding this Lease and all of its
provisions.
C. Choice of Law. This Lease shall in all respects be governed by the laws of
the State of California.
D. Entire Agreement. This Lease, together with its Exhibits, addenda and
attachments and the Basic Lease information, contains all the agreements of the
parties hereto and supercedes any previous negotiations. There have been no
representations made by the
16
Landlord or understandings made between the parties other than those set forth
in this Lease and its Exhibits, addenda and attachments and the Basic Lease
Information.
E. Modification. This Lease may not be modified expect by a written
instrument signed by the parties hereto. Tenant accepts the area of the Premises
as specified in the Basic Lease Information as the approximate area of the
Premises for all purposes under this Lease, and acknowledges and agrees that no
other definition of the area (rentable, usable or otherwise) of the Premises
shall apply. Tenant shall in no event be entitled to a recalculation of the
square footage of the Premises, rentable, usable or otherwise, and no
recalculation, if made, irrespective of its purpose, shall reduce Tenant's
obligations under this Lease in any manner, including without limitation the
amount of Base Rent payable by Tenant or Tenant's Proportionate Share of the
Building and of the Project.
F. Severability. If, for any reason whatsoever, any of the provisions
hereof shall be unenforceable or ineffective, all of the other provisions shall
be and remain in full force and effect.
G. Recordation. Tenant shall not record this Lease or a short form
memorandum hereof.
H. Examination of Lease. Submission of this Lease to Tenant does not
constitute an option or offer to lease and this Lease is not effective otherwise
until execution and delivery by both Landlord and Tenant.
I. Accord and Satisfaction. No payment by Tenant of a lesser amount than
the total Rent due nor any endorsement on any cheek or letter accompanying any
cheek or payment of Rent shall be deemed an accord and satisfaction of full
payment of Rent, and Landlord may accept such payment without prejudice to
Landlord's right to recover the balance of such Rent or to pursue other
remedics. All offers by or on behalf of Tenant of accord and satisfaction are
hereby rejected in advance.
J. Easements. Landlord may grant easements on the Project and dedicate
for public use portions of the Project without Tenant's consent; provided that
no such grant or dedication shall materially interfere with Tenant's Permitted
Use of the Premises. Upon Landlord's request, Tenant shall execute, acknowledge
and deliver to Landlord documents, instruments, maps and plats necessary to
effectuate Tenant's covenants hereunder.
K. Drafting and Determination Presumption. The parties acknowledge that
this Lease has been agreed to by both the parties, that both Landlord and Tenant
have consulted with attorneys with respect to the terms of this Lease and that
no presumption shall be created against Landlord because Landlord drafted this
Lease. Except as otherwise specifically set forth in this Lease, with respect to
any consent, determination or estimation of Landlord required or allowed in this
Lease or requested of Landlord, Landlord's consent, determination or estimation
shall be given or made solely by Landlord in Landlord's good faith opinion,
whether or not objectively reasonable. If Landlord fails to respond to any
request for its consent within the time period, if any, specified in this Lease,
Landlord shall be deemed to have disapproved such request.
L. Exhibits. The Basic Lease Information, and the Exhibits, addenda and
attachments attached hereto are hereby incorporated herein by this reference and
made a part of this Lease as though fully set forth herein.
M. No Light, Air or View Easement. Any diminution or shutting off of
light, air or view by any structure which may be crected on lands adjacent to or
in the vicinity of the Building shall in no way affect this Lease or impose any
liability on Landlord.
N. No Third Party Benefit. This Lease is a contract between Landlord and
Tenant and nothing herein is intended to create any third party benefit.
O. Quiet Enjoyment. Upon payment by Tenant of the Rent, and upon the
observance and performance of all of the other covenants, terms and conditions
on Tenant's part to be observed and performed, Tenant shall peaceably and
quietly hold and enjoy the Premises for the term hereby demised without
hindrance or interruption by Landlord or any other person or persons lawfully or
equitably claiming by, through or under Landlord, subject, nevertheless, to all
of the other terms and conditions of this Lease. Subject to Landlord's
obligation to make reasonable efforts to enforce all applicable rules and
regulations, Landlord shall not be liable for any hindrance, interruption,
interference or disturbance by other tenants or third persons, nor shall Tenant
be released from any obligations under this Lease because of such hindrance,
interruption, interference or disturbance.
P. Counterparts. This Lease may be executed in any number of
counterparts, each of which shall be deemed an original.
Q. Multiple Parties. If more than one person or entity is named herein as
Tenant, such multiple parties shall have joint and several responsibility to
comply with the terms of this Lease.
R. Prorations. Any Rent or other amounts payable to Landlord by Tenant
hereunder for any fractional month shall be prorated based on a month of 30
days. As used herein, the term "fiscal year" shall mean the calendar year or
such other fiscal year as Landlord may deem appropriate.
39. ADDITIONAL PROVISIONS
A) Tenant, at its sole cost and expense and in compliance with all
regulations and safeguards and assuming all liability for such use, shall
be allowed to use one (at a time) compressed nitrogen cylinder in the
facility for research and development purposes. In Addition, tenant shall
be allowed to remove the vinyl tile in the two large rooms (see Exhibit D)
at its sole cost and expense and will immediately install a custom ESD
tile floor in white vinyl, at its sole cost and expense. With Landlord's
prior written approval of colors, Tenant will be allowed to paint the
walls at its sole cost and expense.
B) No other provisions.
40. JURY TRIAL WAIVER
EACH PARTY HERETO (WHICH INCLUDES ANY ASSIGNEE, SUCCESSOR HEIR OR PERSONAL
REPRESENTATIVE OF A PARTY) SHALL NOT SEEK A JURY TRIAL, HEREBY WAIVES TRIAL BY
JURY, AND HEREBY FURTHER WAlVES ANY OBJECTION TO VENUE IN THE COUNTY IN WHICH
THE BUILDING IS LOCATED, AND AGREES AND CONSENTS TO PERSONAL JURISDICTION OF THE
COURTS OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IN ANY ACTION OR
17
PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO AGAINST THE OTHER ON ANY
MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES,
OR ANY CLAIM OF INJURY OR DAMAGE, OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY
STATUTE, EMERGENCY OR OTHERWISE, WHETHER ANY OF THE FOREGOING IS BASED ON THIS
LEASE OR ON TORT LAW. EACH PARTY REPRESENTS THAT IT HAS HAD THE OPPORTUNITY TO
CONSULT WITH LEGAL COUNSEL CONCERNING THE EFFECT OF THIS PARAGRAPH 40. THE
PROVISIONS OF THIS PARAGRAPH 40 SHALL SURVIVE THE EXPIRATION OR EARLIER
TERMINATION OF THIS LEASE.
IS WITNESS WHEREOF, the parties hereto have executed this Lease as of the day
and the year first above written.
LANDLORD
Xxxxxxx Properties, L.P.,
a California limited partnership
By: Xxxxxxx Properties, Inc.,
a Maryland corporation,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Its: Vice President
Date: 3/22/99
TENANT
Multilink Technology Corporation
a California Corporation
By: /s/ Xxxxxxx Nottenberg
---------------------------------------------
Xxxxxxx Nottenberg
Its: President
Date:
EXHIBIT A
Rules and Regulations
1. Driveways, sidewalks, halls, passages, exits, entrances, elevators,
escalators and stairways shall not be obstructed by tenants or used by
tenants for any purpose other than for ingress to and egress from their
respective premises. The driveways, sidewalks, halls, passages, exits,
entrances, elevators and stairways are not for the use of the general public
and Landlord shall in all cases retain the right to control and prevent
access thereto by all persons whose presence, in the judgment of Landlord,
shall be prejudicial to the safety, character, reputation and interests of
the Building, the Project and its tenants, provided that nothing herein
contained shall be construed to prevent such access to persons with whom any
tenant normally deals in the ordinary course of such tenant's business
unless such persons are engaged in illegal activities. No tenant, and no
employees or invitees of any tenant, shall go upon the roof of any Building,
except as authorized by Landlord. No tenant, and no employees or invitees of
any tenant shall move any common area furniture without Landlord's consent.
2. No sign, placard, banner, picture, name, advertisement or notice, visible
from the exterior of the Premises or the Building or the common areas of the
Building shall be inscribed, painted, affixed, installed or otherwise
displayed by Tenant either on its Premises or any part of the Building or
Project without the prior written consent of Landlord in Landlord's sole and
absolute discretion. Landlord shall have the right to remove any such sign,
placard, banner, picture, name, advertisement, or notice without notice to
and at the expense of Tenant, which were installed or displayed in violation
of this rule. If Landlord shall have given such consent to Tenant at any
time, whether before or after the execution of Tenant's Lease, such consent
shall in no way operate as a waiver or release of any of the provisions
hereof or of the Lease, and shall be deemed to relate only to the particular
sign, placard, banner, picture, name, advertisement or notice so consented
to by Landlord and shall not be construed as dispensing with the necessity
of obtaining the specific written consent of Landlord with respect to any
other such sign, placard, banner, picture, name, advertisement or notice.
All approved signs or lettering on doors and walls shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person or vendor approved
by Landlord and shall be removed by Tenant at the time of vacancy at
Tenant's expense.
3. The directory of the Building or Project will be provided exclusively for
the display of the name and location of tenants only and Landlord reserves
the right to charge for the use thereof and to exclude any other names
therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung or
placed in, or used in connection with, any window or door on the Premises
without the prior written consent of Landlord. In any event with the prior
written consent of Landlord, all such items shall be installed inboard of
Landlord's standard window covering and shall in no way be visible from the
exterior of the Building. All electrical ceiling fixtures hung in offices or
spaces along the perimeter of the Building must be fluorescent or of a
quality, type, design, and bulb color approved by Landlord. No articles
shall be placed or kept on the window xxxxx so as to be visible from the
exterior of the Building. No articles shall be placed against glass
partitions or doors which Landlord considers unsightly from outside Tenant's
Premises.
5. Landlord reserves the right to exclude from the Building and the Project,
between the hours of 6 p.m. and 8 am. and at all hours on Saturdays, Sundays
and legal holidays, all persons who are not tenants or their accompanied
guests in the Building. Each tenant shall be responsible for all persons for
whom it allows to enter the Building or the Project and shall be liable to
Landlord for all acts of such persons.
Landlord and its agents shall not be liable for damages for any error concerning
the admission to, or exclusion from, the Building or the Project of any
person.
During the continuance of any invasion, mob, riot, public excitement or other
circumstance rendering such action advisable in Landlord's opinion, Landlord
reserves the right (but shall not be obligated) to prevent access to the
Building and the Project during the continuance of that event by any means
it considers appropriate for the safety of tenants and protection of the
Building, property in the Building and the Project.
6. All cleaning and janitorial services for the Building and the Premises shall
be provided exclusively through Landlord. Except with the written consent of
Landlord, no person or persons other than those approved by Landlord shall
be permitted to enter the Building for the purpose of cleaning the same.
Tenant shall not cause any unnecessary labor by reason of Tenant's
carelessness or indifference in the preservation of good order and
cleanliness of its Premises. Landlord shall in no way be responsible to
Tenant for any loss of property on the Premises, however occurring, or for
any damage done to Tenant's property by the janitor or any other employee or
any other person.
7. Tenant shall see that all doors of its Premises are closed and securely
locked and must observe strict care and caution that all water faucets or
water apparatus, coffee pots or other heat-generating devices are entirely
shut off before Tenant or its employees leave the Premises, and that all
utilities shall likewise be carefully shut off, so as to prevent waste or
damage. Tenant shall be responsible for any damage or injuries sustained by
other tenants or occupants of the Building or Project or by Landlord for
noncompliance with this rule. On multiple-tenancy floors, all tenants shall
keep the door or doors to the Building corridors closed at all times except
for ingress and egress.
8. Tenant shall not use any method of heating or air-conditioning other than
that supplied by Landlord. As more specifically provided in Tenant's lease
of the Premises, Tenant shall not waste electricity, water or air-
conditioning and agrees to cooperate fully with Landlord to assure the most
effective operation of the Building's heating and air-conditioning, and
shall refrain from attempting to adjust any controls other than room
thermostats installed for Tenant's use.
9. Landlord will furnish Tenant free of charge with two keys to each door in
the Premises. Landlord may make a reasonable charge for any additional keys
and Tenant shall not make or have made additional keys. Tenant shall not
alter any lock or access device or install a new or additional lock or
access device or bolt on any door of its Premises, without the prior written
consent of Landlord. If Landlord shall give its consent, Tenant shall in
each cast furnish Landlord with a key for any such lock. Tenant, upon the
termination of its tenancy, shall deliver to Landlord the keys for all doors
which have been furnished to Tenant, and in the event of loss of any keys so
furnished, shall pay Landlord therefor.
1O. The restrooms, toilets, urinals, wash bowls and other apparatus shall not be
used for any purpose other than that for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown into them. The
expense of any breakage, stoppage, or damage resulting from violation of
this rule shall be borne by the tenant who, or whose employees or invitees,
shall have caused the breakage, stoppage, or damage.
Exhibit A - Page 1
11. Tenant shall not use or keep in or on the Premises, the Building or the
Project any kerosene, gasoline, or inflammable or combustible fluid or
material.
12. Tenant shall not use, keep or permit to be used or kept in its Premises any
foul or noxious gas or substance. Tenant shall not allow the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Building by reason of noise, odors and/or vibrations
or interfere in any way with other tenants or those having business
therein, nor shall any animals or birds be brought or kept in or about the
Premises, the Building, or the Project.
13. No cooking shall be done or permitted by any tenant on the Premises, except
that use by the tenant of Underwriters' Laboratory (UL) approved equipment,
refrigerators and microwave ovens may be used in the Premises for the
preparation of coffee, tea, hot chocolate and similar beverages, storing
and heating food for tenants and their employees shall be permitted. All
uses must be in accordance with all applicable federal, state and city
laws, codes, ordinances, rules and regulation and the Lease.
14. Except with the prior written consent of Landlord, Tenant shall not sell,
or permit the sale, at retail, of newspapers, magazines, periodicals,
theater tickets or any other goods or merchandise in or on the Premises,
nor shall "Tenant carry on, or permit or allow any employee or other person
to carry on, the business of stenography, typewriting or any similar
business in or from the Premises for the service or accommodation of
occupants of any other portion of the Building, nor shall the Premises be
used for the storage of merchandise or for manufacturing of any kind, or
the business of a public xxxxxx shop, beauty parlor, nor shall the Premises
be used for any illegal, improper, immoral or objectionable purpose, or any
business or activity other than that specifically provided for in such
Tenant's Lease. Tenant shall not accept hairstyling, barbering, shoeshine,
nail, massage or similar services in the Premises or common areas except
as authorized by Landlord.
15. If Tenant requires telegraphic, telephonic, telecommunications, data
processing, burglar alarm or similar services, it shall first obtain, and
comply with, Landlord's instructions in their installation. The cost of
purchasing, installation and maintenance of such services shall be borne
solely by Tenant.
16. Landlord will direct electricians as to where and how telephone, telegraph
and electrical wires are to be introduced or installed. No boring or
cutting for wires will be allowed without the prior written consent of
Landlord. The location of burglar alarms, telephones, call boxes and other
office equipment affixed to the Premises shall be subject to the prior
written approval of Landlord.
17. Tenant shall not install any radio or television antenna, satellite dish,
loudspeaker or any other device on the exterior walls or the roof of the
Building, without Landlord's consent. Tenant shall not interfere with radio
or television broadcasting or reception from or in the Building, the
Project or elsewhere.
18. Tenant shall not xxxx, or drive nails, screws or drill into the partitions,
woodwork or drywall or in any way deface the Premises or any part thereof
without Landlord's consent. Tenant may install nails and screws in areas of
the Premises that have been identified for those purposes to Landlord by
Tenant at the time those walls or partitions were installed in the
Premises. Tenant shall not lay linoleum, tile, carpet or any other floor
covering so that the same shall be affixed to the floor of its Premises in
any manner except as approved in writing by Landlord. The expense of
repairing any damage resulting from a violation of this rule or the removal
of any floor covering shall be borne by the tenant by whom, or by whose
contractors, employees or invitees, the damage shall have been caused.
19. No furniture, freight, equipment, materials, supplies, packages,
merchandise or other property will be received in the Building or carried
up or down the elevators except between such hours and in such elevators as
shall be designated by Landlord.
Tenant shall not place a load upon any floor of its Premises which exceeds the
load per square foot which such floor was designed to carry or which is
allowed by law. Landlord shall have the right to prescribe the weight, size
and position of all safes, furniture or other heavy equipment brought into
the Building. Safes or other heavy objects shall, if considered necessary
by Landlord, stand on wood strips of such thickness as determined by
Landlord to be necessary to properly distribute the weight thereof.
Landlord will not be responsible for loss of or damage to any such safe,
equipment or property from any cause, and all damage done to the Building
by moving or maintaining any such safe, equipment or other property shall
be repaired at the expense of Tenant.
Business machines and mechanical equipment belonging to Tenant which cause noise
or vibration that may be transmitted to the structure of the Building or to
any space therein to such a degree as to be objectionable to Landlord or to
any tenants in the Building shall be placed and maintained by Tenant, at
Tenant's expense, on vibration eliminators or other devices sufficient to
eliminate noise or vibration. The persons employed to move such equipment
in or out of the Building must be acceptable to Landlord.
20. Tenant shall not install, maintain or operate upon its Premises any
vending machine without the written consent of Landlord.
21. There shall not be used in any space, or in the public areas of the Project
either by Tenant or others, any hand trucks except those equipped with
rubber tires and side guards or such other material handling equipment as
Landlord may approve. Tenants using hand trucks shall be required to use
the freight elevator, or such elevator as Landlord shall designate. No
other vehicles of any kind shall be brought by Tenant into or kept in or
about its Premises.
22. Each tenant shall store all its trash and garbage within the interior of
the Premises. Tenant shall not place in the trash boxes or receptacles any
personal trash or any material that may not or cannot be disposed of in the
ordinary and customary manner of removing and disposing of trash and
garbage in the city, without violation of any law or ordinance governing
such disposal. All trash, garbage and refuse disposal shall be made only
through entry-ways and elevators provided for such purposes and at such
times as Landlord shall designate. If the Building has implemented a
building-wide recycling program for tenants, Tenant shall use good faith
efforts to participate in said program.
23. Canvassing, soliciting, distribution of handbills or any other written
material and peddling in the Building and the Project are prohibited and
each tenant shall cooperate to prevent the same. No tenant shall make
room-to-room solicitation of business from other tenants in the Building or
the Project, without the written consent of Landlord.
24. Landlord shall have the right, exercisable without notice and without
liability to any tenant, to change the name and address of the Building and
the Project.
25. Landlord reserves the right to exclude or expel from the Project any
person who, in Landlord's judgment, is under the influence of alcohol or
drugs or who commits any act in violation of any of these Rules and
Regulations.
Exhibit A - Page 2
26. Without the prior written consent of Landlord, Tenant shall not use the
name of the Building or the Project or any photograph or other likeness of
the Building or the Project in connection with, or in promoting or
advertising, Tenant's business except that Tenant may include the
Building's or Project's name in Tenant's address.
27. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
28. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and
other means of entry to the Premises closed.
29. The requirements of Tenant will be attended to only upon appropriate
application at the office of the Building by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of
their regular duties unless under special instructions from Landlord, and
no employees of Landlord will admit any person (tenant or otherwise) to any
office without specific instructions from Landlord.
30. Landlord reserves the right to designate the use of the parking spaces on
the Project. Tenant or Tenant's guests shall park between designated
parking lines only, and shall not occupy two parking spaces with one car.
Parking spaces shall be for passenger vehicles only; no boats, trucks,
trailers, recreational vehicles or other types of vehicles may be parked in
the parking areas (except that trucks may be loaded and unloaded in
designated loading areas). Vehicles in violation of the above shall be
subject to tow-away, at vehicle owner's expense. Vehicles parked on the
Project overnight without prior written consent of the Landlord shall be
deemed abandoned and shall be subject to tow-away at vehicle owner's
expense. No tenant of the Building shall park in visitor or reserved
parking areas. Any tenant found parking in such designated visitor or
reserved parking areas or unauthorized areas shall be subject to tow-away
at vehicle owner's expense. The parking areas shall not be used to provide
car wash, oil changes, detailing, automotive repair or other services
unless otherwise approved or furnished by Landlord. Tenant will from time
to time, upon the request of Landlord, supply Landlord with a list of
license plate numbers of vehicles owned or operated by its employees or
agents.
31. No smoking of any kind shall be permitted anywhere within the Building,
including, without limitation, the Premises and those areas immediately
adjacent to the entrances and exits to the Building, or any other area as
Landlord elects. Smoking in the Project is only permitted in smoking areas
identified by Landlord, which may be relocated from time to time.
32. If the Building furnishes common area conferences rooms for tenant usage,
Landlord shall have the right to control each tenant's usage of the
conference rooms, including limiting tenant usage so that the rooms are
equally available to all tenants in the Building. Any common area amenities
or facilities shall be provided from time to time at Landlord's discretion.
33. Tenant shall not swap or exchange building keys or cardkeys with other
employees or tenants in the Building or the Project.
34. Tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations by Tenant's employees, agents, clients, customers,
invitees and guests.
35. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify, alter or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of any premises in the
Project.
3G. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of
any other tenant or tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all tenants of the Building.
Landlord will be non-discriminatory as to the enforcement of the rules and
--------------------------------------------------------------------------
regulations for Tenant's of comparable size (square footage) within the
-----------------------------------------------------------------------
project.
-------
37. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety
and security, for care and cleanliness of the Building and the Project and
for the preservation of good order therein. Tenant agrees to abide by all
such Rules and Regulations herein stated and any additional rules and
regulations which are adopted.
Exhibit A - Page 3
EXHIBIT B
[SITE PLAN - SANTA XXXXXX BUSINESS PARK]
EXHIBIT C
TENANT IMPROVEMENTS
-------------------
1. In consideration of the mutual covenants contained in the Lease of
which this Exhibit C is a part, Landlord agrees to perform the following initial
tenant improvement work in the Premises ("Tenant Improvements
NONE
2. All the Tenant Improvements described above shall be performed by
Landlord at its cost and expense using Building Standard materials and in the
Building Standard manner. As used herein, "Building Standard" shall mean the
standards for a particular item selected from time to time by Landlord for the
Building or such other standards as may be mutually agreed upon between Landlord
and Tenant in writing.
3. Without limiting the "as-is" provisions of the Lease, Tenant accepts
the Premises in its "as-is" condition and acknowledges that Landlord has no
obligation to make any changes or improvements to the Premises or to pay any
costs expended or to be expended in connection with any such changes or
improvements, other than the Tenant Improvements specified in Paragraph 1 of
this Exhibit C. Landlord represents that building systems are in good working
-------------------------------------------------------------
order and primary latent defect will be the responsibility of the Landlord.
--------------------------------------------------------------------------
4. Tenant shall not perform any work in the Premises (including, without
limitation, cabling, wiring, fixturization, painting, carpeting, replacements or
repairs) except in accordance with Paragraphs 12 and 27 of the Lease.
0000 XXXXX XXXX
XXXXXX XXXXX
0000 XX. FT.
[EXHIBIT D]
[PLAN APPEARS HERE]
LEASE AMENDMENT NUMBER ONE to Lease dated March 10, 1999, between XXXXXXX
PROPERTIES, L.P., a California limited partnership, as Landlord, and Multilink
Technology Corporation, a California corporation, as Tenant, for the Premises
commonly known as 0000 Xxxxx Xxxx Xxxx., Xxxxx Xxxxxx, Xxxxxxxxxx 00000.
Effective April 23, 1999, the above-described Lease shall be modified as follows
for Tenant's expansion into Xxxxx 000 xxx Xxxxx 000:
TERM: The term for Suites 330 and 335 shall commence May 15, 1999, or when the
----
improvements are substantially completed, whichever is earlier, and shall be
coterminous with the initial Garden Level space, which is September 30, 200O.
RENTABLE AREA. The rentable area shall include that portion of the 3/rd/ floor
-------------
designated as Suite 330 (approximately 2,361 rentable square feet) and Suite 335
(approximately 2,635 rentable square feet) as shown cross hatched on the
attached Exhibit B. Tenant's total rentable square area shall be increased to
9,677 rentable square feet.
BASIC MONTHLY RENTAL
--------------------
The base rental amount for Suite 330 is as follows:
Commencement Date - September 30, 2000 $4,840.05 per month (%2.05/rsf)
The base rental amount for Suite 335 is as follows
Commencement Date- September 30,200O $5,401.75 per month (%2.05/rsf)
IMPROVEMENTS,
-------------
Tenant agrees to lease Suite 330 in its "as is" condition, except for the
following: Landlord agrees at Landlord's sole cost and expense to remove panic
hardware on the three (3) exterior corridor doors and install building standard
hardware; remove two (2) sets of interior doors and frame the doorways; remove
the display walls, patch and paint walls; remove the vertical blinds and replace
with building standard mini blinds on exterior windows; remove two (2) white
boards; remove verticals blinds along west wall.
Tenant agrees to lease Suite 335 in its "as is" condition, except for the
following: Landlord agrees at Landlord's sole cost and expense to install
additional electrical wall outlet every six (6) feet in the open area of the
suite; touch up paint as required; install suite door frame.
OPTION TO RENEW, Tenant shall, provided this Lease is in full force and effect
----------------
and Tenant is not and has not been in default under any of the terms and
conditions of this Lease, have one (1) option to renew this Lease for a term of
six (6) months for the Premises (Suite 330, Suite 335, and Garden Level Suite)
in "as is" condition and on the same terms and conditions set forth in this
Lease, except as modified by the terms, covenants and conditions set forth
below:
(1) If Tenant elects to exercise such option, then Tenant shall provide
Landlord with written notice no later than 5:00 p.m. (Pacific
Standard Time) on the date which is six (6) months prior to the
expiration of the then current term of this Lease. If Tenant fails to
provide such notice, Tenant shall have no further or additional right
to extend or renew the term of this Lease.
(2) The Base Rent in effect at the expiration of the then current term of
this Lease shall be increased to $2.22 per square foot, per month.
(3) Tenant's right to exercise any option to renew under this Paragraph
shall be conditioned upon Tenant occupying the entire Premises and
the same not being occupied by any assignee, subtenant or licensee
other than Tenant or its affiliate at the time of exercise of any
option and commencement of the renewal term. Tenant's exercise of any
option to renew shall constitute a representation by Tenant to
Landlord that as of the date of exercise of the option and the
commencement of the applicable renewal term, Tenant does not intend
to seek to assign this Lease in whole or in part, or sublet all or
any portion of the Premises.
(4) Any exercise by Tenant of any option to renew under this Paragraph
shall be irrevocable. If requested by Landlord, Tenant agrees to
execute a lease amendment or, at Landlord's option, a new lease
agreement on Landlord's then standard lease form for the Building,
reflecting the foregoing terms and conditions, prior to the
commencement of the renewal term. The option to renew granted under
this Paragraph is not transferable; the parties hereto acknowledge
and agree that they intend that the option to renew this Lease
under this Paragraph shall be "personal" to the specific Tenant named
in this Lease and that in no event: will any assignee or sublessee
have any rights to exercise such option(s) to renew
SECURITY DEPOSIT. Security: deposit shall increase by $10.241.80 to reflect the
-----------------
inclusion of Suites 330 ($4,840.05) and 335 ($5,401.75).
PARKING, Tenant shall be allowed an additional twenty (20) parking spaces at
--------
the prevailing market rate. Ten (10) unreserved surface parking spaces at the
prevailing market rate of $60/month/space, not including taxes; and Four (4)
reserved tandem spaces (8 spaces total) at the prevailing market rate of
$60/month/space, not including taxes; and Two (2) single reserved spaces at the
prevailing market rate of $120/month/space, not including taxes.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this Lease
Amendment Number One as dated below.
LANDLORD: XXXXXXX PROPERTIES, L.P.,
a California limited partnership
By: Xxxxxxx Properties, Inc.,
a Maryland corporation
Its: General Partner
By: /s/ Xxxx Xxxxxxxxx
--------------------------
Xxxx Xxxxxxxxx
Vice President
Date: 05/19/99
------------------------
TENANT: MULTILINK TECHNOLOGY CORPORATION
a California corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Its: President
-------------------------
Date: 4/30/99
------------------------
EXHIBIT B
[PICTURE OF SITE PLAN-SANTA XXXXXX BUSINESS PARK APPEARS HERE]
Site Plan-Santa Xxxxxx Business Park
[LOGO OF XXXXXX PROPERTIES APPEARS HERE]
[LOGO OF SANTA XXXXXX BUSINESS PARK APPEARS HERE]
0000 XXXXX XXXX XXXXXXXXX
XXXXX 000
Xxxxx Xxxxxx, Xxxxxxxxxx
RENTABLE SQ. FT. 2,361
[SITE PLAN APPEARS HERE]
0000 XXXXX XXXX XXXX.
Xxxxx Xxxxxx, Xxxxxxxxxx
Building W
SUITE 335
RENTABLE SQ. FT.: 2,664
[SITE PLAN APPEARS HERE]
