EXHIBIT 10.22
CHARLESTON BUSINESS PARK
STANDARD NNN LEASE -- Multi-Tenant Business Park
WITNESSETH
This lease ("Lease") is entered into by and between Limar Realty Corp. #17, a
California corporation ("Landlord") and Docent, Inc., a Delaware corporation
("Tenant"). For and in consideration of the payment of rents and the performance
of the covenants herein set forth by Tenant, Landlord does lease to Tenant and
Tenant accepts the Premises described below subject to the agreements herein
contained.
1. BASIC LEASE TERMS
a. DATE OF LEASE: September 22, 1999
b. TENANT: Docent, Inc.
Address (of the Premises): 0000 Xxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, XX
00000
Address (for Notices): (Please provide if other than Premises.)
c. LANDLORD: Limar Realty Corp. #17
Address (for Notices): 0000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxxx
d. TENANT'S USE OF PREMISES: General office use and research and
development for software and media products, sale and storage of
software products and customer training.
e. PREMISES AREA: "Temporary Premises": 0000 Xxxxxxxxxx
Xxxx = 12,000 Rentable Square Feet
"Original Premises": 0000 Xxxxxxxxxx
Xxxx = 12,200 Rentable Square Feet
"Expansion Premises": 0000 Xxxxxxxxxx
Xxxx = 13,800 Rentable Square Feet
The Temporary Premises, Original Premises,
and Expansion Premises are sometimes
collectively and/or individually referred to
herein as the Premises, provided however,
that the Premises shall only refer to space
actually delivered to Tenant pursuant to
this Lease.
f. BUILDING: 0000-0000 Xxxxxxxxxx Xxxx and/or 0000
Xxxxxxxxxx Xxxx as/when occupied by Tenant,
as the case may be
g. BUSINESS PARK: Charleston Business Park
h. INSURING PARTY: Landlord is the "Insuring Party" unless
otherwise stated herein.
i. TERM (inclusive): Commencement Date: See (P)29.
Expiration Date: See (P)30.
Number of Months from Temporary Premises
Commencement Date to Expiration Date of the
Original Premises and the Expansion
Premises: 68 (assumes 10/1/99 Temporary
Premises Commencement Date)
j TENANT'S SHARE OF BUILDING: See (P)31
k. TENANT'S SHARE OF BUSINESS PARK: See (P)31.
l. TENANT'S NUMBER OF NON-RESERVED PARKING SPACES: See (P)32.
m. INITIAL BASE RENT See (P)33.
n. BASE RENT ADJUSTMENT: See (P)34.
o. PREPAID BASE RENT: As to the Temporary
Premises = $30,000.00
p. SECURITY DEPOSIT: See (P)36.
q. BROKER(S): Cornish & Xxxxx Commercial
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r. EXHIBITS: Exhibits lettered "A" through "D" are attached hereto and
made a part hereof.
2. PREMISES, PARKING AND COMMON AREAS
a. Premises. The Premises as described in (P) 1. and Exhibit A, are a
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portion of a building, herein sometimes referred to as the
"Building" identified in (P) 1. The Premises, the Building, the
Common Areas, the ;land upon which the same are located, along with
all other buildings and improvements thereon or thereunder, are
herein collectively referred to as the "Business Park" as described
in (P) 1. and Exhibit B Landlord hereby leases to Tenant and Tenant
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leases from Landlord for the Term (as defined below), at the rental,
and upon all of the conditions set forth herein, the real property
referred to in the Basic Lease Terms, (P) 1 as the "Premises",
including rights to the Common Areas as hereinafter specified.
Subject to any additional work Landlord has agreed herein to do,
Tenant hereby accepts the Premises in their condition existing as of
the date of the execution hereof, subject to all applicable zoning,
municipal, county and state laws, ordinances and regulations
governing and regulating the use of the Premises, and accepts this
Lease subject thereto and to all matters disclosed thereby and by
any exhibits attached hereto. Tenant agrees with the square footage
specified for the Premises in (P) 1. and will not hereafter
challenge such determination and agreement. The rental payable by
Tenant pursuant to this Lease is not subject to revision in the
event of any discrepancy in the rentable square footage for the
Premises.
b Vehicle Parking. So long as Tenant is not in default, and subject to
the Rules and Regulations attached hereto as Exhibit C, and as
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established by Landlord from time to time, Tenant shall be entitled
to use the number of parking spaces set forth in (P) 1. If Tenant
commits, permits or allows any of the prohibited activities
described in the Lease or the Rules and Regulations then in effect,
then Landlord shall have the right, without notice, in addition to
such other rights and remedies that it may have, to remove or tow
away the vehicle involved and charge the cost to Tenant, which cost
shall be immediately payable upon demand by Landlord. Landlord shall
have the right following reasonable notice to Tenant, at any time
during the Lease Term, to implement a parking plan for the Business
Park whereby one or more of the tenants in the Business Park will be
allocated a designated portion of the Common Areas for the exclusive
parking by such tenant provided there is no disproportionate
reduction to the number of spaces allocated to Tenant In the event
Landlord elects to implement such parking plan for tenant(s)
representing at least 25% of the square footage in the Business
Park, Landlord shall provide Tenant with the exclusive right to park
in a designated portion of the Common Areas (which designated
portion shall be approximately located on all or a portion of the
Common Areas identified on Exhibit "A" attached hereto).
c. Common Areas -- Definition. The term "Common Areas" is defined as
all areas and facilities outside the Premises and within the
exterior boundary line of the Business Park that are provided and
designated by the Landlord from time to time for the general
non-exclusive use of Landlord, Tenant and of other tenants of the
Business Park and their respective employees, suppliers, shippers,
customers and invitees, including but not limited to common
entrances, lobbies, corridors, stairways and stairwells, public
restrooms, elevators, parking areas to the extent not otherwise
prohibited by this Lease, loading and unloading areas, trash areas,
roadways, sidewalks, walkways, parkways, ramps, driveways,
landscaped areas and decorative walls.
d. Common Areas - Rules and Regulations. Tenant agrees to abide by and
conform to the Rules and Regulations attached hereto as Exhibit C
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with respect to the Business Park and Common Areas, and to cause its
employees, suppliers, shippers, customers and invitees to so abide
and conform. Landlord, or such other person(s) as Landlord may
appoint, shall have the exclusive control and management of the
Common Areas and shall have the right, from time to time, to
reasonably modify, amend and enforce said rules and regulations.
Landlord shall not be responsible to Tenant for the non-compliance
with said rules and regulations by other tenants, their agents,
employees and invitees, Following a written request from Tenant,
Landlord shall use commercially reasonable efforts to enforce the
rules and regulations against other tenants of the Building subject
to the terms of each tenant's lease.
e. Building and Common Areas -- Changes. Landlord shall have the right,
in Landlord's reasonable discretion, from time to time:
1) To make changes to the Building interior and exterior and
Common Areas, including, without limitation, changes in the
location, size, shape, number and appearance thereof,
including but not limited to the lobbies, windows, stairways,
air shafts, elevators, restrooms, driveways, entrances,
parking spaces, parking areas, loading and unloading areas,
ingress, egress, direction of traffic. decorative walls,
landscaped areas and walkways;
2) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains
available;
3) To designate other land and improvements outside the
boundaries of the Business Park to be a part of the Common
Areas, provided that such other land and improvements have a
reasonable and functional relationship to the Business Park;
4) To add additional buildings and improvements to the Common
Areas;
5) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Business Park or
any portion thereof; and
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6) To do and perform such other acts and make such other changes
in, to or with respect to the Common Areas and Business Park
as Landlord may, in the exercise of sound business judgment
deem to be appropriate. Landlord's rights pursuant to this (P)
2.e. shall be subject to the condition that exercise of any
such rights shall not unreasonably interfere with Tenant's use
of the Premises or disproportionately decrease the number of
Tenant's parking spaces.
f. Acceptance; Quiet Enjoyment. Landlord represents that it is the fee
simple owner of the Premises and has full right and authority to
make this Lease. Landlord hereby leases the Premises to Tenant and
Tenant hereby accepts the same from Landlord, in accordance with the
provisions of this Lease. Landlord covenants that Tenant shall have
peaceful and quiet enjoyment of the Premises during the Term (as
defined below) of this Lease. Tenant covenants that it will not
interfere with other tenants' quiet enjoyment of their premises.
3. TERM. The term ("Term") of this Lease is for the period that commences at
12:01 a.m. on the Temporary Premises Commencement Date and expires at
11:59 p.m. on the Expiration Date of the Original Premises and the
Expansion Premises. If Landlord, for any reason, cannot deliver possession
of the Temporary Premises to Tenant on or before the Temporary Premises
Commencement Date, this Lease shall not be void or voidable, nor shall
Landlord be liable to Tenant for any loss or damage resulting from such
delay, In that event, however, there shall be an abatement of Base Rent
(as defined below) and additional rent covering the period between the
Temporary Premises Commencement Date and the date when Landlord delivers
possession to Tenant, and all other terms and conditions of this Lease
shall remain in full force and effect. If a delay in possession is caused
by Tenant's failure to perform any obligation in accordance with this
Lease, the Term shall commence as of the Temporary Premises Commencement
Date, and the abatement of Base Rent and additional rent shall continue
only until the date Landlord would have delivered possession but not for
Tenant's failure.
4. RENT
a. Base Rent. Tenant shall pay Landlord in lawful money of the United
States, without notice, demand. offset or deduction, rent in the
amount(s) set forth in (P) 1. which shall be payable in advance on
the first day of each and every calendar month ("Base Rent")
provided, however, the first month's Base Rent is due and payable
upon execution of this Lease. Unless otherwise specified in writing
by Landlord, all installments of Base Rent shall be payable to Limar
Realty Corp. #17, Department #44294, X.X. Xxx 00000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000-0000. Base Rent for any partial month at the
beginning or end of this Lease will be prorated in accordance with
the number of days in the subject month.
For purposes of Section 467 of the Internal Revenue Code. the
parties to this Lease hereby agree to allocate the stated Base Rent
provided herein to the periods which correspond to the actual Base
Rent payments as provided under the terms and conditions of this
Agreement.
b. Cost of Living Adjustment. As to the Original Premises (See (P)
34.b.), the Base Rent shall be subject to increase on April 1 in the
years of 2000. 2001, 2002 and 2003. The base for computing the
increase is the Consumer Price Index All Urban Consumers for the
CMSA referenced in (P) 34.b.1) (1982-84 base year = 100), published
by the United States Department of Labor, Bureau of Labor Statistics
("Index"), which is in effect on the ninetieth (90th) day preceding
April 1, 1999 ("Beginning Index"). The Index ("Adjustment Index")
published and in effect on the ninetieth (90th) day preceding each
annual anniversary ("Annual Anniversary") of April 1, 1999 is to be
used in determining the amount of the increase from one year to the
next. Beginning with the Base Rent due on and after the first
anniversary, the Base Rent shall be increased to equal the product
achieved by multiplying the Base Rent amount by a fraction, the
numerator of which will be the Adjustment Index and the denominator
of which will be the Beginning Index. If there is a decline from one
Annual Anniversary to the next in the Adjustment Index. the Base
Rent due during the subsequent lease year shall equal the Base Rent
due during the then present lease year (i.e., there shall be no
decrease in Base Rent). Notwithstanding the foregoing provisions of
this (P) 4.b.), each Base Rent adjustment shall be subject to a
minimum adjustment in accordance with the Floor Limit if specified
in (P) 34.b.1) and a maximum adjustment in accordance with the
Ceiling Limit if specified in (P) 34.b.1).
If the Index is changed so that the base year differs from 1982-84 =
100, the Index shall be converted in accordance with the conversion
factor published by the United States Department of Labor, Bureau of
Labor Statistics, If the Index is discontinued or revised during the
Term, such other government index or computation with which it is
replaced shall be used in order to obtain substantially the same
result as, in Landlord's reasonable opinion, would be obtained if
the Index had not been discontinued or revised.
c. Step Increase. The Base Rent shall be increased periodically to the
amounts and at the times set forth in (P) 34.
d. Rent Without Offset and Late Charge. All Rent shall be paid without
prior demand or notice and without any deduction or offset
whatsoever. All Rent shall be paid in lawful currency of the United
States of America. Tenant acknowledges that late payment by Tenant
to Landlord of any Rent will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of such cost being
extremely difficult and impracticable to ascertain. Such costs
include, without limitation, processing and accounting charges and
late charges that may be imposed on Landlord by the terms of any
encumbrance or note secured by the Premises. Therefor, if any Rent
is not received by Landlord within five (5) days of its due date,
Tenant
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shall pay to Landlord a late charge equal to six percent (6%) of
such overdue payment. Landlord and Tenant hereby agree that such
late charge represents a fair and reasonable estimate of the costs
that Landlord will incur by reason of any such late payment and that
the late charge is in addition to any and all remedies available to
the Landlord and that the assessment and/or collection of the late
charge shall not be deemed a waiver of any other default.
Additionally, all such delinquent Rent or other sums, plus this late
charge, shall bear interest from the due date thereof at the lesser
of ten percent (10%) per annum or the maximum legal interest rate
permitted by law. Any payments of any kind returned for insufficient
funds will be subject to an additional handling charge of $25.00,
and thereafter for the remainder of the Term hereof, Landlord may
require Tenant to pay all future payments of Rent or other sums due
by cashier's check.
e. Prepaid Base Rent. Upon the execution of this Lease, Tenant shall
pay to Landlord the Prepaid Base Rent set forth in (P) 1., and such
Prepaid Base Rent shall be applied toward the Base Rent due for the
first month of the Term for which Rent is due.
f Rent. The term "Rent" as used in this Lease shall refer to Base
Rent, Prepaid Base Rent, Real Property Taxes, Operating Expenses,
Insurance Costs, repairs and maintenance costs, utilities, late
charges and other similar charges payable by Tenant pursuant to this
Lease either directly to Landlord or otherwise.
5. OPERATING EXPENSES.
a. Payment by Tenant. During the Term of this Lease, Tenant shall pay
to Landlord, as additional Rent, on a monthly basis Tenant's Share
of the Operating Expenses. To the extent that Operating Expenses are
accounted for on a building by building basis, the Tenant's Share of
Building shall apply. To the extent that Operating Expenses are
accounted for on an overall Business Park basis, then Tenant's Share
of Business Park shall apply.
b Operating Expenses. The term "Operating Expenses" shall mean all
expenses, costs and disbursements (not specifically excluded from
the definition of Operating Expenses below) of every kind and nature
which Landlord shall pay or become obligated to pay because of or in
connection with the ownership, maintenance, repair and operation of
the Business Park or any portion thereof (including all Buildings
and Common Areas of the Business Park). Operating Expenses shall
include, but not be limited to, the following:
1) Wages and salaries of all employees engaged in the operation,
maintenance and security of the Business Park, including
taxes, insurance and benefits relating thereto; and the rental
cost and overhead of any office and storage space used to
provide such services.
2) All supplies and materials used in the operation, repair or
maintenance of the Business Park
3) Cost of all utilities, including surcharges, for the Business
Park, including the cost of water, power and lighting which
are not separately billed to and paid for by Tenant.
4) Cost of all maintenance and service agreements for the
Business Park and the equipment thereon, including but not
limited to, security services, exterior window cleaning,
janitorial service, engineers, gardeners and trash removal
services.
5) All Insurance Costs, as such term is defined in (P) 16.
6) Cost of repairs and general maintenance (excluding repairs and
general maintenance paid by proceeds of insurance or by Tenant
or other third parties, and alterations attributable solely to
the other tenants of the Business Park).
7) A reasonable management fee for the property management of the
Business Park.
8) The costs of any additional services not provided to the
Business Park at the Commencement Date but thereafter provided
by Landlord to all tenants in its management of the Business
Park.
9) The cost of any capital improvements to the Business Park or
any part thereof which are made during the Term hereof
amortized over the useful life of the improvement.
10) Real Property Taxes, as that term is defined in (P) 11.
11) Assessments, dues and other amounts payable pursuant to the
CC&R's described in (P) 7.c.
12) All costs to maintain, repair and replace the heating,
ventilation and air conditioning systems ("HVAC") serving the
Building and/or the Premises, including the cost of
maintenance contracts.
c. Operating Expenses shall not include:
1) Costs paid for directly by Tenant or other tenants;
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2) Principal and interest payments on loans secured by deeds of
trust recorded against the Business Park or the Building of
which the Business Park is a part;
3) Real estate sales or leasing brokerage commissions;
4) Executive salaries of off-site personnel employed by Landlord
except for the charge (or prorata share) of the property
manager of the Business Park;
5) Leasing commissions, attorneys' fees, costs, disbursements and
other expenses incurred in connection with negotiations or
disputes with tenants, or in connection with leasing,
renovating or improving space for tenants or other occupants
or prospective tenants or other occupants of the Business
Park;
6) The cost of any service sold to any tenant (including Tenant)
or other occupant for which Landlord is entitled to be
reimbursed as an additional charge or rental over and above
the basic rent and escalations payable under the lease with
that tenant;
7) Any depreciation on the Building or Business Park;
8) Expenses in connection with services or other benefits of a
type that are not provided to Tenant but which are provided
another tenant or occupant of the Building or Business Park;
9) Costs incurred due to Landlord's violation of any terms or
conditions of this Lease or any other lease relating to the
Building or Business Park;
10) Overhead profit increments paid to Landlord's subsidiaries or
affiliates for services on or to the Building or for supplies
or other materials to the extent that the cost of the
services, supplies, or materials exceeds the cost that would
have been paid had the services, supplies or materials been
provided by unaffiliated parties on a competitive basis;
11) Any compensation paid to clerks, attendants or other persons
in commercial concessions operated by Landlord;
12) Advertising and promotional expenditures;
13) Costs or repairs and other work occasioned by fire, windstorm
or other casualty of an insurable nature to the extent covered
by insurance;
14) Management costs to the extent they exceed management costs
charged for similar facilities in the area; or
15) Costs for sculpture, paintings or other objects of art (nor
insurance thereon or extraordinary security in connection
therewith).
d. Extraordinary Services. Tenant shall pay within ten (10) days of
receipt of an invoice from Landlord the cost of additional or
extraordinary services provided to Tenant and not paid or payable by
Tenant pursuant to other provisions of this Lease.
e. Impound. Landlord reserves the right, at Landlord's option, to
estimate the annual cost of Operating Expenses performed by Landlord
("Projected Operating Expenses") and to require same to be paid in
advance. Tenant shall pay to Landlord, monthly in advance as
additional Rent, one-twelfth (1/12) of the Projected Operating
Expenses.
f. Adjustment.
1) Accounting. Within ninety (90) days (or as soon thereafter as
possible) after the close of each calendar year or portion
thereof of occupancy, Landlord shall provide Tenant a
statement of such year's actual Operating Expenses compared to
the Projected Operating Expenses. If the actual Operating
Expenses are more than the Projected Operating Expenses then
Tenant shall pay Landlord, within ten (10) days of receipt of
a xxxx therefor, the difference. If the actual Operating
Expenses are less than the Projected Operating Expenses, then
Tenant shall receive a credit against future Operating
Expenses payments equal to the difference; provided, that in
the case of an overpayment for the final lease year of the
Term, Landlord shall credit the difference against any sums
due from Tenant to Landlord in accordance with the terms of
this Lease; and if no sums are due and unpaid, shall promptly
refund the net amount to Tenant.
2) Tenant's Right to Audit. Within sixty (60) days after receipt
of Landlord's statement setting forth actual Operating
Expenses (the "Statement"), Tenant shall have the right to
audit at Landlord's local offices, at Tenant's expense,
Landlord's accounts and records relating to Operating
Expenses. Such audit shall be conducted by a certified public
accountant approved by Landlord, which approval shall not be
unreasonably withheld. If such audit reveals that Landlord has
overcharged Tenant, the amount overcharged shall be paid to
Tenant within thirty (30) days after the audit is concluded.
In addition, if the Statement exceeds the actual Operating
Expenses
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which should have been charged to Tenant by more than ten
percent (10%), the cost of the audit shall be paid by
Landlord.
3) Proration. Tenant's liability to pay Operating Expenses shall
be prorated on the basis of a 365 (or 366, as the case may be)
day year to account for any fractional portion of a year
included at the commencement or expiration of the Term of this
Lease.
4) Survival. Landlord and Tenant's obligations to pay for or
credit any increase or decrease in payments pursuant to this
(P) 5. shall survive this Lease.
g. Failure to Pay. Failure of Tenant to pay any of the charges required
to be paid under this (P) 5. shall constitute a material default and
breach of this Lease and Landlord's remedies shall be as specified
in (P) 21.
6. SECURITY DEPOSIT. Upon execution of this Lease, Tenant shall deposit a
security deposit ("Security Deposit") in the amount set forth in (P) 36.
with Landlord. If Tenant is in default, Landlord can (but without any
requirement to do so) use the Security Deposit or any portion of it to
cure the default or to compensate Landlord for any damages sustained by
Landlord resulting from Tenant's default. Upon demand, Tenant shall
immediately pay to Landlord a sum equal to the portion of the Security
Deposit expended or applied by Landlord to restore the Security Deposit to
its full amount. In no event will Tenant have the right to apply any part
of the Security Deposit to any Rent due under this Lease. Landlord's
obligations with respect to the Security Deposit are those of a debtor and
not a trustee, and Landlord can commingle the Security Deposit with
Landlord's general funds. Landlord shall not be required to pay Tenant
interest on the Security Deposit. Each time the Base Rent is increased,
Tenant shall deposit additional funds with Landlord sufficient to increase
the Security Deposit to an amount which bears the same relationship to the
Base Rent as the initial Security Deposit bore to the initial Base Rent.
If Tenant is not in default at the expiration or termination of this Lease
and has fully complied with the provisions of (P) 9., (P) 13.d.6) and (P)
26., Landlord shall return the Security Deposit to Tenant.
7. USE OF PREMISES
a. Tenant's Use. Tenant shall use the Premises solely for the purposes
stated in (P) 1. and for no other purposes without obtaining the
prior written consent of Landlord. Tenant acknowledges that neither
Landlord nor any agent of Landlord has made any representation or
warranty with respect to the Premises or with respect to the
suitability of the Premises to the conduct of Tenant's business, nor
has Landlord agreed to undertake any modification, alteration or
improvement to the Premises, except as provided in writing in this
Lease. Tenant shall promptly comply with all laws, statutes,
ordinances, orders and governmental regulations now or hereafter
existing affecting the Premises. Tenant shall not do or permit
anything to be done in or about the Premises or bring or keep
anything in the Premises that will in any way increase the premiums
paid by Landlord on its insurance related to the Premises. Tenant
will not perform any act or carry on any practices that may injure
the Premises. Tenant shall not use the Premises for sleeping,
washing clothes or the preparation, manufacture or mixing of
anything that emits any objectionable odor, noises, vibrations or
lights onto such other tenants, If, in Landlord's reasonable
judgment, sound insulation is required to muffle noise produced by
Tenant on the Premises, Tenant at its own cost shall provide all
necessary insulation. Tenant shall not do anything on the Premises
which will overload any existing parking or service to the Premises.
Pets and/or animals of any type shall not be kept on or about the
Premises. Tenant covenants that it will not interfere with other
tenants' quiet enjoyment of their premises. Notwithstanding the
foregoing or anything to the contrary contained in this Lease,
Tenant shall not be responsible for compliance with any laws, codes,
ordinances or other governmental directives where such compliance is
not related specifically to Tenant's use and occupancy of the
Premises.
b. Rules and Regulations. Tenant shall comply with and use the Premises
in accordance with the Rules and Regulations attached hereto as
Exhibit C and to any reasonable modifications to such Rules and
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Regulations as Landlord may adopt from time to time. Notwithstanding
the foregoing or anything to the contrary contained in this Lease,
if any rule or regulation is in conflict with any term, covenant or
condition of this Lease, this Lease shall prevail. In addition, no
such rule or regulation, or any subsequent amendment thereto adopted
by Landlord, shall in any way materially alter, reduce or adversely
affect any of Tenant's rights or materially enlarge Tenant's
obligations under this Lease.
c. CC&R's. Tenant agrees that this Lease is subject and subordinate to
the Covenants, Conditions and Restrictions, a copy of which is
attached hereto as Exhibit D, as they may be amended from time to
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time ("CC&R's"), and further agrees that the CC&R's are an integral
part of this Lease. Throughout the Term of any extension thereof,
notwithstanding any other provision hereof, Tenant shall faithfully
and timely comply with the CC&R's and any modifications or
amendments thereto. The CC&R's may require the payment of periodic
or special dues or assessments against the Premises, Such dues and
assessments shall be included within the definition of Operating
Expenses pursuant to (P) 5.b.11), and Tenant shall pay its pro rata
share of such amounts as further set forth in (P) 5. Tenant shall
hold Landlord, its subsidiaries, shareholders, directors, officers,
agents and employees harmless and indemnify Landlord, its
subsidiaries, shareholders, directors, officers, agents and
employees against any loss, expense and damage, including attorneys'
fees and costs, arising out of the failure of Tenant to comply with
the CC&R's.
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8. EMISSIONS; STORAGE, USE AND DISPOSAL OF WASTE
a. Emissions. Tenant shall not:
1) Knowingly permit any vehicle on the Premises or in the Commons
Areas to emit exhaust which is in violation of any
governmental law, rule, regulation or requirement;
2) Discharge, emit or permit to be discharged or emitted, any
liquid, solid or gaseous matter, or any combination thereof,
into the atmosphere or on, into or under the Premises, any
building or other improvements of which the Premises are a
part, or the ground or any body of water which matter. as
reasonably determined by Landlord or any governmental entity
to be in violation of law or regulation, and does or may
pollute or contaminate the same, or is, or may become,
radioactive or does, or may, adversely affect (a) the health
or safety of persons, wherever located, whether on the
Premises or anywhere else, (b) the condition, use or enjoyment
of the Premises or any other real or personal property,
whether on the Premises or anywhere else, or (c) the Premises
or any of the improvements thereto including buildings,
foundations, pipes, utility lines, landscaping or parking
areas;
3) Produce, or permit to be produced, any intense glare, light or
heat in violation of law or regulations;
4) Create, or permit to be created, any sound pressure level
which will interfere with the quiet enjoyment of any real
property outside the Premises, or which will create a nuisance
or violate any governmental law, rule, regulation or
requirement;
5) Create, or permit to be created, any vibration that is
discernible outside the Premises; or
6) Transmit, receive or permit to be transmitted or received from
or to the Premises. any electromagnetic, microwave or other
radiation which is or may be harmful or hazardous to any
person or property in, or about the Premises, or anywhere
else.
b. Storage and Use.
1) Storage. Subject to the uses permitted and prohibited to
Tenant under this Lease, Tenant shall store in appropriate
leak proof containers all solid, liquid or gaseous matter, or
any combination thereof, which matter, if discharged or
emitted into the atmosphere, the ground or any body of water
would be in violation of law or regulation, and does or may
(a) pollute or contaminate the same, or (b) adversely affect
the (i) health or safety of persons, whether on the Premises
or anywhere else, (ii) condition, use or enjoyment of the
Premises or any real or personal property, whether on the
Premises or anywhere else, or (iii) Premises.
2) Use. In addition, without Landlord's prior written consent,
Tenant shall not use, store or permit to remain on or about
the Premises any solid, liquid or gaseous matter which is, or
may become dangerously radioactive. If Landlord does give its
consent, Tenant shall store the materials in such a manner
that no radioactivity will be detectable outside a designated
storage area and Tenant shall use the materials in such a
manner that (a) no real or personal property outside the
designated storage area shall become contaminated thereby and
(b) there are and shall be no adverse effects on the (i)
health or safety of persons, whether on the Premises or
anywhere else, (ii) condition, use or enjoyment of the
Premises or any real or personal property thereon or therein,
or (iii) Premises or any of the improvements thereto or
thereon.
3) Hazardous Materials. Subject to the uses permitted and
prohibited to Tenant under this Lease, Tenant shall store,
use, employ, transport and otherwise deal with all Hazardous
Materials (as defined below) employed on or about the Premises
in accordance with all federal, state. Or local law,
ordinances, rules or regulations applicable to Hazardous
Materials in connection with or respect to the Premises.
c. Disposal of Waste.
1) Refuse Disposal. Tenant shall not keep any trash, garbage,
waste or other refuse on the Premises except in sanitary
containers and shall regularly and frequently remove same from
the Premises. Tenant shall keep all incinerators, containers
or other equipment used for storage or disposal of such
materials in a clean and sanitary condition.
2) Sewage Disposal. Tenant shall properly dispose of all sanitary
sewage and shall not use the sewage disposal system (a) for
the disposal of anything except sanitary sewage or (b) amounts
in excess of the lesser of: (i) that reasonably contemplated
by the uses permitted under this Lease or (ii) that permitted
by any governmental entity. Tenant shall keep the sewage
disposal system serving the Premises free of all obstructions
and in good operating condition.
3) Disposal of Other Waste. Tenant shall properly dispose of all
other waste or other matter delivered to, stored upon, located
upon or within, used on, or removed from the Premises in such
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a manner that it does not, and will not, violate any law or
regulation, and adversely affect the (a) health or safety of
persons, wherever located, whether on the Premises or
elsewhere, (b) condition, use or enjoyment of the Premises or
any other real or personal property, wherever located, whether
on the Premises or anywhere else, or (c) Premises or any of
the improvements thereto or thereon including buildings,
foundations, pipes, utility lines, landscaping or parking
areas.
d. Information. Tenant shall provide Landlord with any and all
information regarding Hazardous Materials in the Premises, including
copies of all filings and reports to governmental entities at the
time they are originated, and any other information requested by
Landlord. In the event of any accident, spill or other incident
involving Hazardous Materials, Tenant shall immediately report the
same to Landlord and supply Landlord with all information and
reports with respect to the same. All information described herein
shall be provided to Landlord regardless of any claim by Tenant that
it is confidential or privileged.
e. Compliance with Law. Notwithstanding any other provision in this
Lease to the contrary, Tenant shall comply with all laws, statutes,
ordinances, regulations, rules and other governmental requirements
now or hereafter existing in complying with its obligations under
this Lease, and in particular, relating to the storage, use and
disposal of Hazardous Materials.
f. Indemnity. Tenant hereby agrees to indemnify, defend and hold
Landlord, its agents, employees. lenders, shareholders, directors,
representatives, successors and assigns harmless from and against
any and all actions, causes of action, losses, damages, costs,
claims, expenses, penalties, obligations or liabilities of any kind
whatsoever (including but not limited to reasonable attorneys' fees)
arising out of or relating to any Hazardous Materials employed,
used, transported across, or otherwise dealt with by Tenant (or
invitees, or persons or entities under the control of Tenant) in
connection with or with respect to the Premises and the Business
Park. Notwithstanding any of the provisions of this Lease, the
indemnity obligation of Tenant pursuant to this (P) 8.f. shall
survive the termination of this Lease and shall relate to any
occurrence as described in this (P) 8. occurring in connection with
this Lease. Landlord hereby agrees to indemnify, defend and hold
Tenant harmless from and against any and all actions, causes of
action, losses, damages, costs, claims, expenses, penalties,
obligations or liabilities of any kind whatsoever (including
reasonable attorneys' fees) arising out of or relating to hazardous
materials employed, used, transported to the Property, for which the
Premises are a part thereof, by Landlord, its agents or employees.
For purposes of this Lease the term "Hazardous Materials" shall mean
any hazardous, toxic or dangerous waste, substance or material,
pollutant or contaminant, as defined for purposes of the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980 (42 U.S.C. Sections 9601 et seq.), as amended, or the
Resource Conservation and Recovery Act (42 U.S.C. Sections 6901 et
seq.), as amended, or any other federal, state, or local law,
ordinance, rule or regulation applicable to the Premises, or any
substance which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic, or otherwise
hazardous, or any substance which contains gasoline, diesel fuel or
other petroleum hydrocarbons, polychlorinated biphenyls (PCB's), or
radon gas, urea formaldehyde, asbestos or lead.
9. SIGNS AND COMMUNICATIONS ANTENNAE. Tenant shall not place any sign or
communications antennae upon or adjacent to the Premises, except that
Tenant may, with Landlord's prior written consent, install (but not on the
roof) such signs as are reasonably required to indicate Tenant's company
name or logo provided such signs are in compliance with Landlord's
standard sign criteria or install communications antennae used exclusively
by Tenant provided such signs and/or communications antennae are in
compliance with all applicable governmental requirements and the CC&R's,
The installation of any sign or communications antennae on or adjacent to
the Premises by or for Tenant shall be subject to the provisions of (P)
13. (Repairs and Maintenance). Tenant shall remove any sign or
communications antennae placed on or adjacent to the Premises by Tenant
upon the expiration of the Term or sooner termination of this Lease, and
Tenant shall repair any damage or injury to the Premises caused thereby,
all at Tenant's expense. If any signs or communications antennae are not
removed, or necessary repairs not made, Landlord shall have the right to
remove the signs or communications antennae and repair any damage or
injury to the Premises at Tenant's sole cost and expense. Notwithstanding
any other provision of this Lease to the contrary, Landlord reserves all
rights to the use of the roof and the right to install and receive all
revenues' from the installation of such other signs or communications
antennae on the Premises, including the roof, as do not unreasonably
interfere with the conduct of Tenant's business within the Premises.
10. PERSONAL PROPERTY TAXES. Tenant shall pay at least ten (10) days prior to
delinquency all taxes assessed against and levied upon Tenant owned
leasehold improvements, trade fixtures, furnishings, equipment and all
personal property of Tenant contained in the Premises or elsewhere. When
possible, Tenant shall cause its leasehold improvements, trade fixtures,
furnishings, equipment and all other personal property to be assessed and
billed separately from the real property of Landlord. If any of Tenant's
said personal property shall be assessed with Landlord's real property,
Tenant shall pay Landlord the taxes attributable to Tenant within ten (10)
days prior to delinquency and otherwise after receipt of a written
statement setting forth the taxes applicable to Tenant's property.
11. REAL PROPERTY TAXES
a. Payment of Taxes. Landlord shall pay the Building's Real Property
Taxes, as defined in (P) 11.c. during the Term of this Lease.
Subject to (P) 11.b., Tenant shall promptly reimburse Landlord
according to (P) 5. for Tenant's Share of Business Park of such Real
Property Taxes paid by Landlord.
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b. Advance Payment. In. order to ensure payment when due and before
delinquency of any or all Real Property Taxes, Landlord reserves the
right, at Landlord's option, to estimate the current Real Property
Taxes applicable to the Premises, and to require each installment of
the Real Property Taxes to be paid in advance to Landlord by Tenant,
either: (i) in a lump sum amount, at least twenty (20) days prior to
the applicable delinquency date, or (ii) monthly in advance with the
payment of the Base Rent. If Landlord elects to require payment
monthly in advance, the monthly payment shall be that equal monthly
amount which, over the number of months remaining before the month
in which the applicable tax installment would become delinquent,
would provide a fund large enough to fully discharge before
delinquency the estimated installment of Real Property Taxes to be
paid. When the actual amount of the applicable tax xxxx is known,
Landlord may, but is not required to, adjust the amount of such
equal monthly advance payment so as to provide the funds needed to
pay the applicable Real Property Taxes before delinquency. If the
amounts paid to Landlord by Tenant under the provisions of this (P)
11. are insufficient to discharge the obligations of Tenant to pay
such Real Property Taxes as the same become due, Tenant shall pay to
Landlord, upon Landlord's demand, such additional sums as are
necessary to pay such obligations. All moneys paid to Landlord under
this (P) 11. may be intermingled with other moneys of Landlord and
shall not bear interest. In the event of a breach by Tenant in the
performance of the obligations of Tenant under this Lease, then any
balance of funds paid to Landlord under the provisions of this (P)
11. may, at the option of Landlord, be treated as an additional
Security Deposit under (P) 6.
c. Definition of "Real Property Taxes". As used herein, the term "Real
Property Taxes" shall include any form of real estate tax or
assessment, general, special, ordinary or extraordinary, and any
license fee, commercial rental tax, improvement bond or bonds, levy
or tax or other fee, charge, or excise which may be imposed as a
substitute for any of the foregoing (other than inheritance,
personal income or estate taxes) imposed upon the Business Park by
any authority having the direct or indirect power to tax, including
any city, county, state or federal government, or any school,
agricultural, sanitary, fire, street, drainage or other improvement
district thereof, levied against any legal or equitable interest of
Landlord in the Business Park, Landlord's right to rent or other
income therefrom, and/or Landlord's business of leasing the Business
Park. The term "Real Property Taxes" shall also include any tax.
fee. levy, assessment or charge, or any increase therein, imposed by
reason of events occurring, or changes to applicable law taking
effect, during the Term of this Lease, including but not limited to
a change in the ownership of the Business Park or in the
improvements thereon, the execution of this Lease, or any
modification, amendment or transfer thereof, and whether or not
contemplated by the parties hereto.
12. UTILITIES. Tenant shall pay for all water, gas, heat, light, power,
telephone, trash disposal and other utilities and services supplied to the
Premises, together with any taxes thereon. If any such services are not
separately metered to Tenant, Tenant shall pay a reasonable proportion, to
be determined by Landlord. of all charges jointly metered with other
premises. Notwithstanding anything to the contrary contained in this
Lease, Landlord shall use reasonable efforts to restore any service that
becomes unavailable. Should Tenant be prevented from making reasonable use
of the Premises for more than thirty (30) consecutive days because of
Landlord's failure or inability to provide services as stated herein,
Tenant shall be entitled to xxxxx the rent for each consecutive day (after
the thirty (30) day period).
13. REPAIRS AND MAINTENANCE
a. Landlord's Obligations. Landlord shall keep the Business Park,
including the foundation, exterior walls, roof of the Building and
Common Areas, and the equipment whether used exclusively for the
Premises or in common with other premises, in good condition and
repair subject to reimbursement by Tenant in accordance with (P) 5.
There shall be no abatement of Rent or liability to Tenant on
account of any injury or interference with Tenant's business with
respect to any improvements, alterations or repairs made by Landlord
to the Business Park or any part thereof. Notwithstanding anything
to the contrary contained in this Lease, Landlord agrees as its
obligation, under this Lease, to repair, maintain and replace as
necessary the building structure, support structure, foundation,
roof (structure and membrane), load bearing walls, plumbing,
electrical, HVAC, elevator, building exterior and parking grounds
subject to reimbursement pursuant to (P) 5.
b. Tenant's Obligations.
1) General. Tenant shall, at Tenant's sole cost and expense and
at all times, contract for janitorial services and supplies,
keep the Premises in good order, condition and repair,
including, without limiting the generality of the foregoing,
all equipment or facilities serving the Premises, such as
plumbing, heating, air conditioning, ventilating, electrical,
lighting facilities, boilers, fired or unfired pressure
vessels, fixtures, interior walls, ceilings, floors, windows,
window frames, interior and exterior doors and door frames,
plate glass and skylights. Tenant shall not cause or permit
any Hazardous Material to be spilled or released in, on, under
or about the Premises (including through the plumbing or
sanitary sewer system) and shall promptly, at Tenant's
expense, take all investigatory and/or remedial action
reasonably recommended, whether or not formally ordered or
required, for the cleanup of any contamination of, and for the
maintenance, security and/or monitoring of the Premises, the
elements surrounding same, or neighboring properties, that was
caused or materially contributed to by Tenant, or pertaining
to or involving any Hazardous Materials and/or storage tank
brought onto the Premises by or for Tenant or under its
control. Tenant, in keeping the Premises in good order,
condition and repair, shall exercise and perform good
maintenance practices. Tenant's obligations shall include
restorations, replacements or
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renewals when necessary to keep the Premises and all
improvements thereon or a part thereof in good order,
condition and state of repair.
2) Contracts. Tenant shall, at Tenant's sole cost and expense,
procure and maintain contracts, with copies to Landlord, in
customary form and substance for, and with contractors
specializing and experienced in, the inspection, maintenance
and service of heating, air conditioning and ventilation
equipment, if any, servicing the Premises. Tenant shall keep a
detailed preventative maintenance schedule and log showing the
frequency of maintenance on all HVAC, mechanical, electrical
and other systems servicing the Premises and provide Landlord
with a copy of same quarterly.
3) As-is Condition. Except as otherwise provided herein, the
parties affirm that Landlord, its subsidiaries, officers,
shareholders, directors, agents and/or employees have made no
representations to Tenant respecting the condition of the
Premises except as specifically stated herein.
4) Americans with Disabilities Act. Tenant acknowledges that as
of the Commencement Date. the Premises may not comply with the
Americans with Disabilities Act of 1990 ("ADA"). and that
Landlord shall have no obligation with respect to any such
failure of the Premises to so comply Tenant shall, at its
cost, at any time during the Term as required by any
applicable governmental agency having jurisdiction over the
Premises, make such modifications and alterations to the
Premises as may be required in order to fully comply with the
provisions of the ADA, as from time to time amended, and any
and all regulations issued pursuant to or in connection with
the ADA in such a manner as to satisfy the applicable
governmental agency or agencies requiring remediation. Tenant
shall at least thirty (30) days prior to the commencement of
any construction in connection with satisfaction of the ADA,
give written notice to Landlord of its intended commencement
of construction together with sufficient details so as to
reasonably disclose to Landlord the nature of the proposed
construction, copies of any notices received by Tenant from
applicable governmental agencies in connection with the ADA
and such other documents or information as Landlord may
reasonably request. In any event, notwithstanding anything to
the contrary contained in this Lease, prior to the termination
of the Term, Tenant shall, at its Cost, make such
modifications and alterations to the Premises as may be
required to comply fully with the ADA as from time to time
amended and any and all regulations issued thereunder. Tenant
shall give the Landlord thirty (30) days prior written notice
as described above in connection with any such construction.
Any and all construction required to so comply with the ADA
shall be completed by Tenant prior to the expiration of the
Term.
c. Compliance with Governmental Regulations. Tenant shall, at its own
cost and expense, promptly and properly observe and comply with all
present and future orders, regulations, directions, rules, laws,
ordinances, and requirements of all governmental authorities
(including but not limited to state, municipal. county and federal
governments and their departments, bureaus, boards and officials)
arising from the use or occupancy of, or applicable to, the Premises
or privileges appurtenant to or in connection with the enjoyment of
the Premises. Tenant shall also comply with all such rules, laws,
ordinances and requirements at the time Tenant makes any alteration,
addition or change to the Premises Notwithstanding anything to the
contrary contained in this Lease, Tenant shall not be responsible
for compliance with any laws, codes, ordinances or other
governmental directives where such compliance is not related
specifically to Tenant's use and occupancy of the Premises.
d. Miscellaneous.
1) Landlord and Tenant shall each do all acts required to comply
with all applicable laws, ordinances and rules of any public
authority relating to their respective maintenance obligations
as set forth herein.
2) Tenant expressly waives the benefits of any statute now or
hereafter in effect which would otherwise afford the Tenant
the right to make repairs at Landlord's expense or to
terminate this Lease because of Landlord's failure to keep the
Premises and the Business Park in good order, condition and
repair, Specifically, Tenant waives the provisions of
California Civil Code Sections 1941 and 1942 with respect to
Landlord's obligations for Tenant tenantability of the
Premises and Tenant's right to make repairs and deduct the
expenses of such repairs from Rent.
3) Tenant shall not place a load upon any floor of the Premises
which exceeds the load per square foot which such floor was
designed to carry, as determined by Landlord or Landlord's
structural engineer.
4) Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant nor shall Tenant's
obligations under this Lease be reduced or abated in any
manner whatsoever o by reason of any inconvenience, annoyance,
interruption or injury to business arising from Landlord
making any repairs or changes which Landlord is required to
make or is permitted to make by this Lease or by any tenant's
lease or is required by law to make in or to any portion of
the Premises. Landlord shall nevertheless use reasonable
efforts to minimize any interference with Tenant's business in
the Premises.
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5) Tenant shall give Landlord prompt notice of any damage to or
defective condition in any part or appurtenance of the
Premises' mechanical, electrical, plumbing, HVAC or other
systems serving, located in or passing through the Premises.
Upon request by Landlord, Tenant shall provide Landlord with
evidence reasonably acceptable to Landlord of a service
contract on the HVAC systems.
6) Upon the expiration or early termination of this Lease, Tenant
shall return the Premises to Landlord clean and in the same
condition as on the date Tenant took possession, except for
normal wear and tear. Any damage to the Premises, including
any structural damage, resulting from Tenant's use or from the
removal of Tenant's fixtures, furnishings and equipment shall
be repaired by Tenant prior to the end of the Term at Tenant's
expense.
7) Landlord may, at Landlord's option, choose to perform any of
the Tenant's obligations in this (P) 13 The cost of any such
Tenant's obligations so performed by Landlord shall be at
Tenant's sole cost and expense. Tenant shall reimburse
Landlord for any such COSTS incurred by Landlord in the
performance of such Tenant's obligations within thirty (30)
days of receipt of a billing from Landlord.
14. ALTERATIONS. Tenant shall not make any alterations to the Premises or the
Business Park without Landlord's prior written consent which shall not be
unreasonably withheld. If Landlord gives its consent to such alterations,
Landlord may post notices in accordance with the laws of the state in
which the Premises are located. All alterations made by Tenant, whether or
not subject to the approval of Landlord, shall be performed by Tenant and
its contractors in a first class workmanlike manner and permits and
inspections shall be obtained from all required governmental entities. Any
alterations made shall remain on and be surrendered with the Premises upon
expiration or termination of this Lease, except that Landlord may, within
thirty (30) days before or thirty (30) days after expiration of the Term,
elect to require Tenant to remove some or all of the alterations which
Tenant may have made to the Premises. If Landlord so elects, Tenant shall
at its own cost restore the Premises to the condition designated by
Landlord in its election, before the last day of the Term or within thirty
(30) days after notice of its election is given, whichever is later.
Should Landlord consent in writing to Tenant's alteration of the Premises,
Tenant shall contract with a contractor approved by Landlord for the
construction of such alterations. shall secure all appropriate
governmental approvals and permits, and shall complete such alterations
with due diligence in compliance with plans and specifications approved by
Landlord. Tenant shall pay all costs for such construction and shall keep
the Premises free and clear of all mechanics' liens which may result from
construction by Tenant. Notwithstanding anything in this Lease to the
contrary:
a. Tenant shall not be required to remove any improvement or fixture
installed by Tenant in, on or about the Premises pursuant to
Tenant's repair obligation under this Lease, and Tenant shall not be
required to remove any alterations, improvements, additions or
utility installations for which Tenant has obtained Landlord's
consent, unless Landlord has indicated, at the time of granting such
consent, that such removal will be required.
b. Tenant shall be entitled to remove Tenant's furniture, equipment,
trade fixtures and other personal property at the expiration of the
term, provided Tenant repairs all damages caused by such removal.
c. Tenant shall be entitled to make alterations and utility
installations in, on, under or about the Premises without consent of
Landlord, so long as the cost of such alteration or utility
installation does not (i) exceed the sum of $2,500; (ii) affect the
structural or exterior portions of the Building or adversely affect
the Building electrical, plumbing or HVAC systems; or (iii) involve
the removal or relocation of any walls. Tenant shall, however,
provide Landlord fifteen (15) days prior advance written notice and
copies of a description of the alteration along with building permit
plans(s) and specifications to enable Landlord to post any desired
notices of non-responsibility.
15. RELEASE AND INDEMNITY. As material consideration to Landlord, Tenant
agrees that Landlord shall not be liable to Tenant for any damage to
Tenant or Tenant's property from any cause, except for damages resulting
from Landlord's gross negligence or willful misconduct, and Tenant waives
all claims against Landlord for damage to persons or property arising for
any reason, except for damage resulting directly from Landlord's breach of
its express obligations under this Lease which Landlord has not cured
within a reasonable time after written notice of such breach from Tenant.
Tenant shall indemnify and hold Landlord harmless from all damages
including attorneys' fees and costs arising out of any damage to any
person or property occurring in, on or about the Premises or Tenant's use
of the Premises or Tenant's breach of any term of this Lease.
16. INSURANCE
a. Payment For Insurance. Regardless of whether the Landlord or Tenant
is the Insuring Party, Tenant shall pay its proportionate share of
all insurance required under this (P) 16. ("Insurance Costs") either
directly or by reimbursement to Landlord as specified in this (P)
16. Premiums for policy periods commencing prior to or extending
beyond the Lease Term shall be prorated to correspond to the Lease
Term. Payment shall be made by Tenant to Landlord within thirty (30)
days following receipt of an invoice for any amount due.
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b. Liability Insurance.
1) Carried by Tenant. Whether or not Tenant is the Insuring
Party, Tenant shall obtain and keep in force during the Term
of this Lease a commercial general liability policy of
insurance protecting Tenant and Landlord (as an additional
insured) against claims for bodily injury, personal injury and
property damage based upon, involving or arising out of the
ownership, use, occupancy or maintenance of the Premises and
all areas appurtenant thereto. Such insurance shall be on an
occurrence basis providing single limit coverage in an amount
not less than $5,000,000 per occurrence with an "Additional
Insured-Managers or Landlords of Premises" endorsement and
contain an "Amendment of the Pollution Exclusion" for damage
caused by heat, smoke or fumes from a hostile fire. The policy
shall not contain any intra-insured exclusions as between
insured persons or organizations, but shall include coverage
for liability assumed under this Lease as an "insured
contract" for the performance of Tenant's indemnity
obligations under this Lease. The limits of said insurance
required by this Lease or as carried by Tenant shall not,
however, limit the liability of Tenant nor relieve Tenant of
any obligation hereunder. All insurance to be carried by
Tenant shall be primary to and not contributory with any
similar insurance carried by Landlord. whose insurance shall
be considered excess insurance only. All insurance coverage
required pursuant to this (P) 16. which is to name Landlord as
a named insured shall also name Landlord's subsidiaries,
directors, agents, officers and employees as named insureds.
2) Carried by Landlord. In the event Landlord is the Insuring
Party Landlord shall also maintain liability insurance as
described in (P) 16.b.1), in addition to, and not in lieu of
the insurance required to be maintained by Tenant. In the
event Tenant is the Insuring Party, Landlord shall in addition
carry Landlord's Risk Coverage and insure the Premises on
Landlord's umbrella policy and Tenant shall reimburse Landlord
the cost thereof. Tenant shall not be named as an additional
insured therein under any insurance obtained by Landlord in
accordance with this (P) 16.b.2).
c. Property Insurance - Building, Improvements and Rental Value.
1) Building and Improvements. The Insuring Party shall obtain and
keep in force during the Term of this Lease a policy or
policies in the name of Landlord, with loss payable to
Landlord and to the holders of any mortgages, deeds of trust
or ground leases on the Business Park ("Lender(s)"), insuring
loss or damage to the Business Park. The amount of such
insurance shall be equal to the full replacement cost of the
Business Park, as the same shall exist from time to time, or
the amount required by Lender(s), but in no event more than
the commercially reasonable and available insurable value
thereof if, by reason of the unique nature or age of the
improvements involved, such latter amount is less than full
replacement cost. Such policy or policies shall insure against
all risks of direct physical loss or damage (including Boiler
and Machinery coverage and the perils of flood and earthquake)
(if available at a commercially reasonable cost), including
coverage for any additional costs resulting from debris
removal and reasonable amounts of coverage for the enforcement
of any ordinance or law regulating the reconstruction or
replacement of any undamaged sections of the Business Park
required to be demolished shall also contain an agreed
valuation provision in lieu of any coinsurance clause, waiver
of subrogation and inflation guard protection causing an
increase in the annual property insurance coverage amount by a
factor of not less than the adjusted U.S. Department of Labor
Consumer Price Index for All Urban Consumers for the city
nearest to where the Business Park is located. If such
insurance coverage has a deductible clause, then Tenant shall
be liable for its proportionate share of such deductible
amount not to exceed $10,000.00. Even if Landlord is the
Insuring Party, Tenant's personal property shall be insured by
Tenant under (P) 16.d. rather than by Landlord.
2) Rental Value. The Insuring Party shall, in addition, obtain
and keep in force during the term of this Lease a policy or
policies in the name of Landlord, with loss payable to
Landlord and Lender(s), insuring the loss of the full rental
and other charges payable by Tenant to Landlord under this
Lease for one (1) year (including all Real Property Taxes,
Insurance Costs and any scheduled Rent increases). Said
insurance shall provide that in the event the Lease is
terminated by reason of an insured loss, the period of
indemnity for such coverage shall be extended beyond the date
of the completion of repairs or replacement of the Premises,
to provide for one full year's loss of Rent from the date of
any such loss, Said insurance shall contain an agreed
valuation provision in lieu of any coinsurance clause, and the
amount of coverage shall be adjusted annually to reflect the
projected Rent, Real Property Taxes, Insurance Costs and other
expenses, if any, otherwise payable by Tenant, for the next
twelve (12) month period. Tenant shall be liable for any
deductible amount in the event of such loss.
3) Adjacent Premises. If the Premises are part of a larger
building, or if the Premises are part of a group of buildings
owned by Landlord which are adjacent to the Premises, the
Tenant shall pay for any increase in the premiums for the
property insurance of such building or buildings if said
increase is caused by Tenant's acts, omissions, use or
occupancy of the Premises.
4) Tenant's Improvements. If the Landlord is the Insuring Party,
the Landlord shall not be required to insure Tenant's personal
property and leasehold improvements unless the item in
question has become the property of Landlord under the terms
of this Lease. If Tenant is the Insuring Party,
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the policy carried by Tenant under this (P) 16.c. shall insure
Tenant's personal property and leasehold improvements.
d. Tenant's Property Insurance. Subject to the requirements of (P)
16.e., Tenant at its cost shall either by separate policy, or at
Landlord's option, by endorsement to a policy already carried,
maintain insurance coverage on all of Tenant's personal property and
Tenant owned leasehold improvements in, on or about the Premises
similar in coverage to that carried by the Insuring Party under (P)
16.c. Such insurance shall be full replacement cost coverage with a
deductible of not to exceed $10,000 per occurrence. The proceeds
from any such insurance shall be used by Tenant for the replacement
of personal property or the restoration of Tenant owned leasehold
improvements. Tenant shall be the Insuring Party with respect to the
insurance required by this (P) 16.d. and shall provide Landlord with
written evidence that such insurance is in force.
e. Insurance Policies. If Tenant is the Insuring Party, insurance
required per this (P) 16. shall be with companies duly licensed to
transact business in the state where the Premises are located, and
maintaining during the policy term a "General Policyholders Rating"
of at least A- X, or such other minimal rating as may be required by
Lender(s) as set forth in the most current issue of "Best's
Insurance Guide." Tenant shall not do or permit to be done anything
which shall invalidate the insurance policies referred to in this
(P) 16. If Tenant is the Insuring Party, Tenant shall cause to be
delivered to Landlord certified copies of policies of such insurance
or certificates evidencing the existence and amounts of such
insurance with the insureds and loss payable clauses as required by
this Lease. No such policy shall be cancelable or subject to
modification except after thirty (30) days prior written notice to
Landlord. Tenant shall at least thirty (30) days prior to the
expiration of such policies, furnish Landlord with evidence of
renewals or "insurance binders" evidencing renewal thereof, or
Landlord may order such insurance and charge the cost thereof to
Tenant, which amount shall be payable by Tenant to Landlord upon
demand. If the Insuring Party shall fail to procure and maintain the
insurance required to be carried by the Insuring Party under this
(P) 16., the other Party may, but shall not be required to, procure
and maintain the same, but at Tenant's expense.
f. Mutual Waiver. Notwithstanding anything to the contrary contained in
this Lease, to the extent that this release and waiver does not
invalidate or impair their respective insurance policies, the
parties hereto release each other and their respective agents,
employees, officers, directors, shareholders, successors, assignees
and subtenants from all liability for injury to any person or damage
to any property that is caused by or results from a risk which is
actually insured against pursuant to the provisions of this Lease
without regard to the negligence or willful misconduct of the
parties so released. Each party shall use its best efforts to cause
each insurance policy it obtains to provide that the insurer
thereunder waives all right of recovery by way of subrogation as
required herein in connection with any injury or damage covered by
the policy. If such insurance policy cannot be obtained with such
waiver of subrogation, or if such waiver of subrogation is only
available at additional cost and the party for whose benefit the
waiver is not obtained does not pay such additional costs after
reasonable notice, then the party obtaining such insurance shall
promptly notify the other party of the inability to obtain insurance
coverage with the waiver of subrogation.
17. DAMAGE AND DESTRUCTION
a. Damage - Restoration Required. In the event that the Building
containing the Premises is damaged by fire or other casualty which
is covered under insurance pursuant to the provisions of (P) 16.
above, Landlord shall restore such damage provided that: (i) the
destruction of the Building containing the Premises does not exceed
sixty percent (60%) of the then replacement value of the Building
containing the Premises; (ii) the insurance proceeds are available
(inclusive of any deductible amounts) to pay one hundred percent
(100%) of the cost of restoration; and (iii) in the reasonable
judgment of Landlord, the restoration can be completed within two
hundred and seventy (270) days after the date of the damage or
casualty under the laws and regulations of the state, federal,
county and municipal authorities having jurisdiction. The pro rata
portion of the deductible amount of any insurance coverage for
damage to the Premises shall be paid by Tenant. If such conditions
apply so as to require Landlord to restore such damage pursuant to
this (P) 17.a., this Lease shall continue in full force and effect,
unless otherwise agreed to in writing by Landlord and Tenant. Tenant
shall be entitled to a proportionate reduction of Rent while such
restoration takes place, such proportionate reduction to be based on
the extent to which the damage and restoration efforts interfere
with Tenant's business in the Premises. Tenant's right to a
reduction of Rent hereunder shall be Tenant's sole and exclusive
remedy in connection with any such damage.
b. Damage - Restoration Not Required. In the event that the Building
containing the Premises is damaged by a fire or other casualty and
Landlord is not required to restore such damage in accordance with
the provisions of (P) 17.a. immediately above, Landlord shall have
the option to either (i) repair or restore such damage, with the
Lease continuing in full force and effect, but Rent to be
proportionately abated as provided in (P) 17.a. above; or (ii) give
notice to Tenant at any time within thirty (30) days after the
occurrence of such damage terminating this Lease as of a date to be
specified in such notice which date shall not be less than thirty
(30) nor more than sixty (60) days after the date on which such
notice of termination is given. In the event of the giving of such
notice of termination, this Lease shall expire and all interest of
Tenant in the Premises shall terminate on the date so specified in
such notice and the Rent, reduced by any proportionate reduction in
Rent as provided for in (P) 17.a. above, shall be paid to the date
of such termination. Notwithstanding the foregoing, if Tenant
delivers to Landlord the funds necessary to make up the shortage (or
absence) in insurance proceeds and the restoration can be completed
in a two hundred seventy (270) day period, as reasonably determined
by Landlord, and the destruction of the
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Building containing the Premises does not exceed sixty percent (60%)
of the then replacement value, Landlord shall restore the Premises
as provided in (P) 17.a. above.
c. End of Term Casualty. Notwithstanding the provisions of (P) 17.a.
and (P) 17.b. above, either Landlord or Tenant may terminate this
Lease if the Building containing the Premises is damaged by fire or
other casualty, Landlord's reasonably estimated cost of restoration
of the Building containing the Premises exceeds ten percent (10%) of
the then replacement value of the Building containing the Premise's
and such damage or casualty occurs during the last twelve (12)
months of the Term of this Lease (or the Term of any renewal option,
if applicable) by giving the other notice thereof at any time within
thirty (30) days following the occurrence of such damage or
casualty. Such notice shall specify the date of such termination
which date shall not be less than thirty (30) nor more than sixty
(60) days following the date on which such notice of termination is
given. In the event of the giving of such notice of termination,
this Lease shall expire and all interest of Tenant in the Premises
shall terminate on the date so specified in such notice and the Rent
shall be paid to the date of such termination.
d. Termination by Tenant. In the event that the destruction to the
Building containing the Premises cannot be restored as required
herein under applicable laws and regulations within two hundred ten
(210) days of the damage or casualty, notwithstanding the
availability of insurance proceeds, Tenant shall have the right to
terminate this Lease by giving the Landlord notice thereof within
thirty (30) days of date of the occurrence of such casualty
specifying the date of termination which shall not be less than
thirty (30) days nor more than sixty (60) days following the date on
which such notice of termination is given. In the event of the
giving of such notice of termination, this Lease shall expire and
all interest of Tenant in the Premises shall terminate on the date
so specified in such notice and the Rent, reduced by any
proportionate reduction in Rent as provided for in (P) 17a. above,
shall be paid to the date of such termination.
e. Restoration. Landlord agrees that, in any case in which Landlord is
required to, or otherwise agrees to restore the Building containing
the Premises, Landlord shall proceed with due diligence to make all
appropriate claims and applications for the proceeds of insurance
and to apply for and obtain all permits necessary for the
restoration of the Building containing the Premises. Landlord shall
use reasonable efforts to enforce any and all provisions in any
mortgage, deed of trust or other encumbrance on the Building
containing the Premises requiring Landlord and Lender to permit
insurance proceeds to be used for restoration. Landlord shall
restore the Premises at least equal to the condition existing prior
to the date of the damage if permitted by applicable law. Landlord
shall not be required to restore alterations made by Tenant,
Tenant's improvements, Tenant's trade fixtures and Tenant's personal
property, such excluded items being the sole responsibility of
Tenant to restore provided, however, that Landlord shall, to the
extent of available insurance proceeds, restore Tenant Improvements
to the Premises made by Tenant such as interior offices, lab and
production improvements and other like improvements.
f. Waiver. Tenant waives the provisions of Civil Code (S) 1932(2) and
Civil Code (S) 1933(4) with respect to any destruction of the
Premises.
18. CONDEMNATION
a. Definitions. The following definitions shall apply: (1)
"Condemnation" means (a) the exercise of any governmental power of
eminent domain, whether by legal proceedings or otherwise by
condemnor, or (b) the voluntary sale or transfer by Landlord to any
condemnor either under threat of condemnation or while legal
proceedings for condemnation are proceeding; (2) "Date of Taking"
means the date the condemnor has right to possession of the property
being condemned; (3) "Award" means all compensation, sums or
anything of value awarded, paid or received on a total or partial
Condemnation; and (4) "Condemnor" means any public or quasi-public
authority, or. private corporation or individual, having power of
Condemnation.
b. Obligations to be Governed by Lease. If during the Term of the Lease
there is any taking of all or any part of the Building containing
the Premises, the rights and obligations of the parties shall be
determined strictly pursuant to this Lease. Each party waives the
provisions of Code of Civil Procedure (S) 1265.130 allowing either
party to petition the Superior Court to terminate this Lease in the
event of a partial condemnation of the Premises.
c Total or Partial Taking. If the Building containing the Premises are
totally taken by Condemnation, this Lease shall terminate on the
Date of Taking. If any portion of the Building containing the
Premises is taken by Condemnation, this Lease shall remain in
effect, except that Tenant can elect to terminate this Lease if the
remaining portion of the Premises is rendered unsuitable for
Tenant's continued use of the Premises. If Tenant elects to
terminate this Lease, Tenant must exercise its right to terminate by
giving notice to Landlord within thirty (30) days after the nature
and extent of the Condemnation have been finally determined. If
Tenant elects to terminate this Lease, Tenant shall also notify
Landlord of the date of termination, which date shall not be earlier
than thirty (30) days nor later than ninety (90) days after Tenant
has notified Landlord of its election to terminate; except that this
Lease shall terminate on the Date of Taking if the Date of Taking
falls on a date before the date of termination as designated by
Tenant. If any portion of the Premises is taken by Condemnation and
this Lease remains in full force and effect, on the Date of Taking
the Base Rent shall be reduced by an amount in the same ratio as the
total number of square feet in the Premises taken bears to the total
number of square feet in the Premises immediately before the Date of
Taking. Any Award for the taking of all or any part of the Premises
under the power of eminent domain or any payment made under threat
of the exercise of such power shall be the property of
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Landlord, whether such Award shall be made as compensation for
diminution in value of the leasehold or for the taking of the fee,
or as severance damages; provided, however, that Tenant shall be
entitled to any compensation separately awarded to Tenant for
Tenant's relocation expenses and/or loss of Tenant's trade fixtures.
19. ASSIGNMENT OR SUBLEASE
a. Tenant shall not assign or encumber its interest in this Lease or
the Premises or sublease all or any part of the Premises or allow
any other person or entity (except Tenant's authorized
representatives, employees, invitees or guests) to occupy or use all
or any part of the Premises without first obtaining Landlord's
consent, which consent shall not be unreasonably withheld. Any
assignment, encumbrance or sublease without Landlord's prior written
consent shall be voidable and at Landlord's election, shall
constitute a default. If Tenant is a partnership, a withdrawal or
change, voluntary, involuntary or by operation of law of any
partner, or the dissolution of the partnership, shall be deemed a
voluntary assignment. If Tenant consists of more than one person, a
purported assignment, voluntary or involuntary or by operation of
law from one person to the other shall be deemed a voluntary
assignment. If Tenant is a corporation, any dissolution, merger,
consolidation or other reorganization of Tenant, or sale or other
transfer of a controlling percentage of the capital stock of Tenant,
or the sale of at least fifty percent (50%) of the value of the
assets of Tenant shall be deemed a voluntary assignment.
Notwithstanding the sentence immediately above, if the Tenant is a
corporation, the Tenant shall be entitled to assign this Lease
without Landlord's prior written consent to: (i) a successor
corporation related to Tenant by merger consolidation or
non-bankruptcy reorganization, provided that the surviving
Corporation in connection with any such assignment shall have a
minimum net worth as of the date of the assignment at least equal to
that of Tenant immediately prior to completion of the subject
merger, consolidation or reorganization, (ii) a purchaser of
substantially all of Tenant's assets, provided that immediately
following such purchase, such purchaser shall have a net worth at
least equal to that of Tenant immediately prior to the completion of
the subject purchase, or (iii) a sale or transfer of a controlling
percentage of the capital stock of Tenant if (1) such sale or
transfer occurs in direct connection with any bona fide financing
for the benefit of Tenant or (2) at such time Tenant becomes a
publicly traded corporation (a transferee described in (i), (ii) or
(iii) shall be referred to as a "Permitted Transferee"). In
connection with any assignment as described in the sentence
immediately above, Landlord shall be entitled to require an increase
in the Security Deposit to the extent that such increase should be
commercially reasonable in Landlord's reasonable discretion given
the financial condition of Tenant and the assignee following such
event. Tenant shall give Landlord at least sixty (60) days prior
written notice of any intended transfer to a Permitted Transferee
and in connection with such transfer shall provide to Landlord
copies of any documents or other information as Landlord may
reasonably request. Unless otherwise expressly agreed in writing by
Landlord, no assignment shall relieve Tenant of any of its
obligations pursuant to this Lease. All Rent received by Tenant from
its subtenants in excess of the Rent payable by Tenant to Landlord
under this Lease applicable to the portion of the Premises
subleased, after deducting therefrom the commercially reasonable
brokerage commissions, moving allowance to subtenants, Tenant
Improvements made at request of subtenants and attorneys' fees
incurred by Tenant in negotiating and documenting the sublease,
shall be deemed "Bonus Rent" and 75% of the Bonus Rent shall be
promptly paid to Landlord or, as the case may be, 75% of any sums
(determined in the same manner as Bonus Rent) to be paid by an
assignee to Tenant in consideration of the assignment of this Lease
shall be promptly paid to Landlord. There shall be no deemed "Bonus
Rent" in the event of a Permitted Transfer. If Tenant requests
Landlord to consent to a proposed assignment or subletting, Tenant
shall pay to Landlord, whether or not consent is ultimately given,
an amount equal to Landlord's reasonable attorneys' fees and costs
incurred in connection with such request. Each request for consent
to an assignment or subletting shall be in writing, and shall be
accompanied by information as may be relevant to Landlord's
determination as to the financial and operational responsibility and
stability of the proposed assignee or sublessee and the
appropriateness of the proposed use by such assignee or sublessee.
Such information shall include a summary of the proposed use of, and
any proposed modifications to, the Premises. Tenant shall provide
Landlord with such other or additional information and/or
documentation as may reasonably be requested by Landlord. Tenant
shall, upon completion of any assignment or subletting of all or any
portion of the Premises, immediately and irrevocably assign to
Landlord as security for Tenant's obligations under the Lease. all
Rent from any such subletting or assignment. Upon a default by
Tenant, Landlord, as assignee and attorney in fact for Tenant, shall
have the right to collect all rent and other revenues collectable
pursuant to any such sublet or assignment and apply such rent and
other revenues towards Tenant's obligations under the Lease.
b. No interest of Tenant in this Lease shall be assignable by
involuntary assignment through operation of law (including without
limitation the transfer of this Lease by testacy or intestacy). Each
of the following acts shall be considered an involuntary assignment:
(a) if Tenant is or becomes bankrupt or insolvent, makes 1 an
assignment for the benefit of creditors, or institutes proceedings
under the Bankruptcy Act in which Tenant is the bankrupt; or if
Tenant is a partnership or consists of more than one person or
entity, if any partner of the partnership or other person or entity
is or becomes bankrupt or insolvent, or makes an assignment for the
benefit of creditors; or (b) if a writ of attachment or execution is
levied on this Lease: or (c) if in any proceeding or action to which
Tenant is a party, a receiver is appointed with authority to take
possession of the Premises. An involuntary assignment shall
constitute a default by Tenant and Landlord shall have the right to
elect to terminate this Lease, in which case this Lease shall not be
treated as an asset of Tenant.
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c. Notwithstanding any other provision of this Lease to the contrary,
in any event where Landlord's consent is required for (i) assignment
or (ii) sublease of more than 50% of the Premises, Landlord may, at
its option, elect to terminate the Lease instead of approving the
requested assignment or sublease. Should Landlord so elect to
terminate this Lease, all of the obligations of the parties
thereunder shall terminate on the later of sixty (60) days following
Landlord's notice to Tenant of its election hereunder, or the
effective date of the proposed assignment or subletting sought by
the Tenant, but in no event later than one hundred twenty (120) days
following the date of Landlord's election under this (P) 19.c. At
the time of termination, all obligations of both parties hereunder
shall terminate as to obligations thereafter accruing except as
otherwise expressly provided in this Lease.
20. DEFAULT. The occurrence of any of the following shall constitute a default
by Tenant: (a) a failure of Tenant to pay Rent within ten (10) days of its
due date; (b) abandonment of the Premises; or (c) failure to timely
perform any other provision of this Lease where such failure continues for
a period in excess of thirty days following notice of such failure,
provided however, that if the nature of such failure is such that it
cannot reasonably be cured within thirty days, then Tenant shall not be in
default if Tenant commences to cure such failure within thirty days and
thereafter diligently prosecutes the cure to completion. Tenant shall give
written notice to Landlord of any default by Landlord of its obligations
pursuant to this Lease asserted by Tenant (with a copy of such notice to
any lender ("Lender") against the Premises). Landlord and Landlord's
Lender shall be afforded a reasonable opportunity to cure any claimed
default by Landlord and Landlord shall not be considered in default so
long as Landlord (or Landlord's Lender) commences such cure within a
reasonable period of time and thereafter, continues to attempt to complete
such cure. Landlord, from time to time, shall provide Tenant with the name
and address of its Lender.
21. LANDLORD'S REMEDIES. Landlord shall have the following remedies if Tenant
is in default. (These remedies are not exclusive; they are cumulative and
in addition to any remedies now or later allowed by law):
a. Landlord may continue this Lease in full force and effect, and this
Lease will continue in effect so long as Landlord does not terminate
Tenant's right to possession, and Landlord shall have the right to
collect Rent when due. During the period Tenant is in default,
Landlord can enter the Premises and relet the Premises, or any part
of the Premises, to third parties for Tenant's account. Tenant shall
be liable immediately to Landlord for all costs Landlord reasonably
incurs in reletting the Premises, including without limitation,
brokers' commissions, reasonable expenses of remodeling the Premises
required by the reletting, and like costs. Reletting can be for a
period shorter or longer than the remaining Term of this Lease.
Tenant shall pay to Landlord the Rent due under this Lease on the
dates the Rent is due, less the Rent Landlord receives from any
reletting. No act by Landlord allowed by this (P) 21.a. shall
terminate this Lease unless Landlord notifies Tenant in writing that
Landlord elects to terminate this Lease After Tenant's default and
for so long as Landlord does not terminate Tenant's right to
possession of the Premises, if Tenant obtains Landlord's consent,
Tenant shall have the right to assign or sublet its interest in this
Lease, but Tenant shall not be released from liability. Landlord's
consent to such a proposed assignment or subletting shall not be
unreasonably withheld. If Landlord elects to relet the Premises as
provided in this (P) 21.a., Rent that Landlord receives from
reletting shall be applied to the payment of: first, any
indebtedness from Tenant to Landlord other than Rent due from
Tenant; second, all costs, including for maintenance incurred by
Landlord in reletting; and third, Rent due and unpaid under this
Lease. After deducting the payments referred to in this (P) 21.a.,
any sum remaining from the Rent Landlord receives from reletting
shall be held by Landlord and applied in payment of future Rent as
Rent becomes due under this Lease. In no event shall Tenant be
entitled to any excess Rent received by Landlord. If, on the date
Rent is due under this Lease, the Rent received from the reletting
is less than the Rent due on that date, Tenant shall pay to
Landlord. in addition to the remaining Rent due, all costs including
for maintenance Landlord incurred in reletting that remain after
applying the Rent received from the reletting as provided In this
(P) 21.a.; and
b. Landlord may terminate Tenant's right to possession of the Premises
at any time. No act by Landlord other than giving express written
notice thereof to Tenant shall terminate this Lease. Acts of
maintenance, efforts to relet the Premises, or the appointment of a
receiver on Landlord's initiative to protect Landlord's interest
under this Lease shall not constitute a termination of Tenant's
right to possession. Upon termination of Tenant's right to
possession, Landlord has the right to recover from Tenant: (1) the
Worth of the unpaid Rent that had been earned at the time of
termination of Tenant's right to possession: (2) the Worth of the
amount by which the unpaid Rent that would have been earned after
the date of termination until the time of award exceeds the amount
of the loss of Rent that Tenant proves could have been reasonably
avoided; (3) the Worth of the amount of the unpaid Rent that would
have been earned after the award throughout the remaining Term of
the Lease to the extent such unpaid Rent exceeds the amount of the
loss of Rent that Tenant proves could have been reasonably avoided;
and (4) any other amount including but not limited to, reasonable
expenses incurred to relet the Premises, court costs, attorneys'
fees and collection costs necessary to compensate Landlord for all
detriment proximately caused by Tenant's default. The "Worth", as
used above in (1) and (2) in this (P) 21.b. is to be computed by
allowing interest at the lesser of 18 percent per annum or the
maximum legal interest rate permitted by law. The "Worth", as used
above in (3) in this (P) 21.b., is to be computed by discounting the
amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of the award, plus one percent (1%)
22. ENTRY OF PREMISES. Landlord and/or its authorized representatives shall
have the right to enter the Premises at all reasonable times for any of
the following purposes: (a) to determine whether the Premises are in good
condition and whether Tenant is complying with its obligations under this
Lease; (b) to do any necessary maintenance and to make any restoration to
the Premises that Landlord has the right or obligation to perform: (c) to
post "for sale" signs at any time during the Term, or to post "for rent"
or "for lease" signs during the last one
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hundred eighty (180) days of the Term or during any period while Tenant is
in default; (d) to show the Premises to prospective brokers, agents,
buyers, tenants or persons interested in leasing or purchasing the
Premises. at any time during the Term; or (e) to repair, maintain or
improve the Premises and to erect scaffolding and protective barricades
around and about the Premises but not so as to prevent entry to the
Premises or to unreasonably interfere with Tenant's use of the Premises
and to do any other act or thing necessary for the safety or preservation
of the Premises. Landlord shall not be liable in any manner for any
inconvenience, disturbance loss of business, nuisance or other damage
arising out of Landlord's entry onto the Premises as provided in this (P)
22. Tenant shall not be entitled to an abatement or reduction of Rent if
Landlord exercises any rights reserved in this (P) 22. Landlord shall
conduct its activities on the Premises as provided herein in a
commercially reasonable manner that will lessen the inconvenience,
annoyance or disturbance to Tenant. Notwithstanding the provisions of this
(P) 22., Landlord shall provide Tenant with at least 24 hours prior actual
notice before entering the Premises except that in the event of an
emergency, the determination of which shall require Landlord to be
reasonable. Landlord shall use its best efforts to provide Tenant with
notice reasonable in such situation prior to performing any affirmative
duty or obligation of Tenant. In the event of any entry by Landlord onto
the Premises, Landlord shall use its best efforts not to interfere with
the conduct of Tenant's business.
23. SUBORDINATION
a. Automatic Subordination. Without the necessity of any additional
document being executed by Tenant for the purpose of effecting a
subordination, and at the election of Landlord or Landlord's Lender,
this Lease shall be subject and subordinate at all times to (i) all
ground leases or underlying leases which may now exist or hereafter
be executed affecting the Premises, (ii) the lien of any mortgage or
deed of trust which may now exist or hereafter be executed affecting
the Premises, and (iii) the lien of any mortgage or deed of trust
which may hereafter be executed in any amount for which the
Premises, ground leases or underlying leases, or Landlord's interest
or estate in any of said items is specified as security. In the
event that 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, attorn to and become the
Tenant of the successor in interest (including without limitation to
Lender) to Landlord ("Successor"). In connection with any such
termination of a ground lease or underlying lease or any foreclosure
or conveyance in lieu of foreclosure made in connection with any
mortgage or deed of trust, then so long as Tenant is not in default
pursuant to this Lease, Tenant shall not be disturbed in its
possession of the Premises or in the enjoyment of its rights
pursuant to this Lease during the Term of this Lease or any
extension or renewal thereof. Notwithstanding any subordination of
this Lease to the lien of any mortgage or deed of trust, the Lender,
at any time shall be entitled to subordinate the lien of its
mortgage or deed of trust to this Lease by filing a notice of
subordination in the County in which the Premises are located, and
Lender shall agree in connection with any such filing, that Tenant
shall not be disturbed in its possession of the Premises so long as
Tenant is not in default pursuant to this Lease. In connection with
any such filing, Tenant shall be obligated to attorn to and to
become a Tenant of any Successor.
b. Additional Subordination. From time to time at the request of
Landlord, Tenant covenants and agrees to execute and deliver within
ten (10) days following the date of written request from Landlord,
documents evidencing the priority or subordination of this Lease
with respect to any ground lease or underlying lease or the lien of
any mortgage or deed of trust in connection with the Premises. Any
and all such documents shall be in such form as is reasonably
acceptable to the Lender(s). Any subordination agreement so
requested by Landlord shall provide for Tenant to attorn to the
Successor and shall further provide that Tenant shall not be
disturbed in its possession of the Premises or in the enjoyment of
its rights pursuant to this Lease so long as Tenant is not in
default with respect to its obligations pursuant to the Lease. Any
such Subordination, Non-disturbance and Attornment Agreement shall
be recorded in the official records of the office of the County
Recorder in the County in which the Premises is located.
c. Notice from Lender. Tenant shall be entitled to rely upon any notice
given by a Lender in connection with the Premises requesting that
Tenant make all future Rent payments to such Lender, and Tenant
shall not be liable to Landlord for any payment made to such Lender
in accordance with such notice. Notwithstanding any provision to the
contrary of this Lease, a Successor shall not be (i) obligated to
recognize the payment of Rent for a period of more than one month in
advance; (ii) responsible for liabilities accrued pursuant to this
Lease prior to the date ("Succession Date" ) upon which the
Successor becomes the "Landlord" hereunder; (iii) responsible to
cure defaults of the Landlord pursuant to this Lease existing as of
the Succession Date, except for defaults of a continuing nature of
which Successor received notice (as provided in Paragraph 20) and
in. respect of which Tenant afforded Successor a reasonable cure
period following such notice; (iv) responsible for any Security
Deposit delivered by Tenant pursuant to this Lease not actually
received by the Successor; or (v) bound by any execution,
modification, termination or extension of this Lease or any grant of
a purchase option or right of first refusal or any other action
taken by the Landlord pursuant to this Lease, except in accordance
with the provisions of that certain Absolute Assignment of Leases
and Rents executed by Landlord in favor of Lender.
24. ESTOPPEL CERTIFICATE; TENANT FINANCIAL STATEMENTS. Tenant, at any time and
from time to time, upon not less than ten (10) days written notice from
Landlord, will execute, acknowledge and deliver to Landlord and, at
Landlord's request, to any existing or prospective purchaser, ground
lessor or mortgagee of any part of the Premises, a certificate of Tenant
stating: (a) that Tenant has accepted the Premises, (or, if Tenant has not
done so, Tenant has not accepted the Premises and specifying the reasons
therefor); (b) the Commencement and Expiration Dates of this Lease; (c)
that this Lease is unmodified and in full force and effect (or, if there
have been modifications, that same is in full force and effect as modified
and stating the modifications); (d) whether or not to
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the best of Tenant's knowledge there are then existing any defenses
against the enforcement of any of the obligations of Tenant under this
Lease (and, if so, specifying same); (e) whether or not to the best of
Tenant's knowledge there are then existing any defaults by Landlord in the
performance of its obligations under this Lease (and, if so, specifying
same); (f) the dates, if any, to which the Rent and other charges under
this Lease have been paid; (g) whether or not there are Rent increases
during the Lease Term and if so the amount of same; (h) whether or not the
Lease contains any options or rights of first offer or first refusal; (i)
the amount of any Security Deposit or other sums due Tenant; (j) the
current notice address for Tenant; and (k) any other information that may
reasonably be required by any of such persons. It is intended that any
such certificate of Tenant delivered pursuant to this (P) 24. may be
relied upon by Landlord and any existing or prospective purchaser, ground
lessor or mortgagee of the Building containing the Premises. Tenant
agrees, at any time upon request by Landlord, to deliver to Landlord the
most recent quarterly current financial statements of Tenant with an
opinion from a certified public accountant, if available, including a
balance sheet and profit and loss statement for the most recent prior
three years, all prepared in accordance with generally accepted accounting
principles consistently applied; Landlord agrees to hold such financial
statements confidential and to share them only with prospective lenders
and purchasers of the Business Park. Other than for prospective lenders
and purchasers, Landlord shall not request financial statements more often
than twice in any calendar year.
25. WAIVER. No delay or omission in the exercise of any right or remedy by
Landlord shall impair such right or remedy or be construed as a waiver. No
act or conduct of Landlord, including without limitation, acceptance of
the keys to the Premises, shall constitute an acceptance of the surrender
of the Premises by Tenant before the expiration of the Term. Only written
notice from Landlord to Tenant shall constitute acceptance of the
surrender of the Premises and accomplish termination of the Lease.
Landlord's consent to or approval of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent act by
Tenant. Any waiver by Landlord of any Default must be in writing and shall
not be a waiver of any other Default concerning the same or any other
provision of the Lease.
26. SURRENDER OF PREMISES. Upon expiration of the Term, Tenant shall surrender
to Landlord the Premises and all tenant improvements and alterations in
the same condition as existed at the commencement date of the Old Lease
(as defined below), except for ordinary wear and tear and alterations
which Tenant has the right or is obligated to remove under the provisions
of (P) 14. herein. Tenant shall remove all personal property including,
without limitation, all wallpaper, paneling and other decorative
improvements or fixtures and shall perform all restoration made necessary
by the removal of any alterations or Tenant's personal property before the
expiration of the Term, including, for example, restoring all wall
surfaces to their condition as of the commencement date of the Old Lease.
Landlord can elect to retain or dispose of in any manner Tenant's personal
property not removed from the Premises by Tenant prior to the expiration
of the Term. Tenant waives all claims against Landlord for any damage to
Tenant resulting from Landlord's retention or disposition of Tenant's
personal property. Tenant shall be liable to Landlord for Landlord's cost
for storage, removal and disposal of Tenant's personal property.
27. HOLDOVER. If Tenant with Landlord's consent remains in possession of the
Premises after expiration of the Term or after the date in any notice
given by Landlord to Tenant terminating this Lease pursuant to (P) 17.
or (P) 18., such possession by Tenant shall be deemed to be a month to
month tenancy cancelable by either party on thirty (30) days written
notice given at any time by either party and all provisions of this Lease,
except those pertaining to Term, renewal options and Base Rent, shall
apply and Tenant shall thereafter pay monthly Base Rent computed on a per-
month basis, for each month or part thereof (without reduction for any
partial month) that Tenant remains in possession, in an amount equal to
one hundred fifty percent (150%) of the Base Rent that was in effect for
the last full calendar month immediately preceding expiration of the Term.
If Tenant holds over after the expiration or earlier termination of the
Term hereof, without the consent of Landlord, Tenant shall become a Tenant
at sufferance only with a continuing obligation to pay Rent provided that
the Base Rent shall be one hundred fifty percent (150%) of the Base Rent
that was in effect for the last full calendar month immediately preceding
expiration of the Term for the first thirty (30) days of such holdover,
and two hundred percent (200%) of such Base Rent thereafter during the
pendency of such holdover. Acceptance by Landlord of Rent after expiration
or earlier termination of the Term shall not constitute a consent to a
holdover hereunder or result in a renewal. The foregoing provisions of
this (P) 27 are in addition to and do not affect Landlord's right of
re-entry or any rights of Landlord hereunder or as otherwise provided by
law. If Tenant fails to surrender the Premises upon the expiration of this
Lease despite demand to do so by Landlord, Tenant shall indemnify and hold
Landlord harmless from all loss or liability arising out of such failure,
including without limitation, any claim made by any succeeding tenant
founded on or resulting from such failure to surrender. No provision of
this (P) 27 shall be construed as implied consent by Landlord to any
holding over by Tenant. Landlord expressly reserves the right to require
Tenant to surrender possession of the Premises to Landlord as provided in
this Lease upon expiration or other termination of this Lease. The
provisions of this (P) 27 shall not be considered to limit or constitute a
waiver of any other rights or remedies of Landlord provided in this Lease
or at law.
28. NOTICES. All notices, demands, or other communications required or
contemplated under this Lease, including any notice delivered to Tenant by
the Lender, shall be in writing and shall be deemed to have been duly
given 48 hours from the time of mailing if mailed by registered or
certified mail, return receipt requested, postage prepaid, or 24 hours
from the time of shipping by overnight carrier, or the actual time of
delivery if delivered by personal service to the parties at the addresses
specified in (P) 1. Either Tenant or Landlord may change the address to
which notices are to be given to such party hereunder by giving written
notice of such change of address to the other in accordance with the
notice provisions hereof.
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29. COMMENCEMENT DATE:
a. Temporary Premises: The term of the Lease as to the Temporary
Premises ("Temporary Premises Commencement Date") will commence upon
Landlord's substantial completion of Landlord's Tenant Improvements,
as evidenced by a temporary or permanent certificate of occupancy if
such is issued by the city of Mountain View, and delivery of
possession of the Premises to Tenant. Landlord will attempt to give
Tenant seven (7) days advance notice of the Commencement Date.
b. Original Premises: The term of the Lease as to the Original Premises
("Original Premises Commencement Date") will commence on the same
day as the Temporary Premises Commencement Date. Effective with the
Original Premises Commencement Date, that certain lease (the "Old
Lease") dated 2/23/98 by and between Limar Realty Corp. #17 as
successor in interest to 2400 Charleston Associates, LLC, and
Docent, Inc. for 0000 Xxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx is
terminated except for any obligations and liabilities which are
accrued but unsatisfied as of said date. Upon the written request of
Landlord, the parties hereto agree to execute a separate Lease
Termination Agreement to further document the termination of the Old
Lease.
c. Expansion Premises: The term of the Lease as to the Expansion
Premises ("Expansion Premises Commencement Date") will commence on
the day following substantial vacation of the Expansion Premises by
the existing tenant (Optimal) and delivery of possession of the
Premises to Tenant. Landlord will attempt to give Tenant seven (7)
days advance notice of the Commencement Date. If the Expansion
Premises is not delivered by August 1, 2000, then the Initial Base
Rental for the Temporary Premises shall be reduced to $25,200 per
month effective August 1, 2000.
30. EXPIRATION DATE:
a. Temporary Premises: The term of the Lease as to the Temporary
Premises will expire on the last day of the calendar month in which
the space is fully vacated by Tenant in conformity with the
provisions of (P) 26. above.
b. Original Premises: The term of the Lease as to the Original Premises
will expire on May 31, 2005
c. Expansion Premises: The term of the Lease as to the Expansion
Premises will expire on May 31, 2005.
31. TENANT'S SHARE OF BUILDING. Tenant's Share of Building shall at any given
time be the sum of the Tenant Share of Building for any and all premises
for which the Lease for the Premises is in effect using the percentages
given below.
Building Share Business Park Share
-------------- -------------------
a. Temporary Premises: 100.00% (12,000 sq. ft. / 12,000 sq. ft.) 10.08% (12,000 sq. ft. / 119,080 sq. ft.)
b. Original Premises: 46.92% (12,200 sq. ft. / 26,000 sq. ft.) 10.25% (12,200 sq. ft. / 119,080 sq. ft.)
c. Expansion Premises: 53.08% (13,800 sq. ft. / 26,000 sq. ft.) 11.59% (13,800 sq. ft. / 119,080 sq. ft.)
32. TENANT'S NUMBER OF NON-RESERVED PARKING SPACES. Tenant's Share of Parking
Spaces shall at any given time be the sum of the parking allowed below as
to that portion of the Premises for which the Lease is in effect:
a. Temporary Premises: 46 spaces.
b. Original Premises: 42 spaces.
c. Expansion Premises: 53 spaces.
33. INITIAL BASE RENT. The initial monthly base rent for each respective
portion of the Premises is as follows:
a. Temporary Premises = $30,000.00 per month.
b. Original Premises = $23,427.66 per month.
c. Expansion Premises = $28,980.00 per month.
34. BASE RENT ADJUSTMENT.
a. Temporary Premises: NONE, unless the Temporary Premises Expiration
Date is on or after 1/1/2001 in which case, effective 1/1/2001 and
each January 1 thereafter, the monthly Base Rent for the Temporary
Premises will increase by four percent (4%).
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b. Original Premises:
1) As to the following adjustment dates: 4/1/00, 4/1/01, 4/1/02
and 4/1/03, the cost of living provisions of (P) 4.b. apply
using the CPI Index for the CMSA of San Francisco-Oakland and
the annual floor limit ("Floor Limit") shall be an increase of
two percent (2%) and the annual ceiling limit ("Ceiling
Limit") shall be an increase of five percent (5%).
2) The Base Rent for the Original Premises shall be further
adjusted as follows:
Effective 10/1/03: $28,818.84 per month (12,200
rentable square feet x $2.3622)
Effective 1/1/04: $29,971.74 per month (12,200
rentable square feet x $2.4567)
Effective 1/1/05: $31,171.00 per month (12,200
rentable square feet x $2.5550)
c. Expansion Premises: The Base Rent for the Expansion Premises shall
be adjusted as follows:
Effective 1/1/01: $30,139.20 per month (13,800
rentable square feet @ $2.1840)
Effective 1/1/02: $31,345.32 per month (13,800
rentable square feet @ $2.2714)
Effective 1/1/03: $32,598.36 per month (13,800
rentable square feet @ $2.3622)
Effective 1/1/04: $33,902.46 per month (13,800
rentable square feet @ $2.4567)
Effective 1/1/05: $35,259.00 per month (13,800
rentable square feet @ $2.5550)
35. TENANT IMPROVEMENTS.
a. Temporary Premises: Landlord, at Landlord's sole cost and expense,
will demolish the existing tenant improvements as necessary and
provide and install new building standard tenant improvements for an
"open office" layout--namely, at least 6 private offices (which may
include 1 or more conference rooms). an equipment room to house
servers and telephone switching equipment, the existing
configuration of bathrooms, dropped ceiling and building standard
lighting, new floor covering, HVAC and sprinklers distributed in an
"open office" configuration and new paint throughout the Temporary
Premises ("Landlord's Tenant Improvements"). If Tenant requires
additional tenant improvements ("Tenant's Tenant Improvements"),
Landlord will provide and install the Tenant's Tenant Improvements.
subject to Landlord's approval of the scope of work, at Tenant's
sole cost and expense. Tenant shall be required to remove all or
part of Tenant's Tenant Improvements by the Temporary Premises
Expiration Date as specified by Landlord at the time of approval of
Tenant's Tenant Improvements.
b. Original Premises: Except as otherwise provided herein, the existing
Docent Space will be leased to Tenant in its "as is" condition
except that upon request by Tenant within the six (6) month period
preceding October 1, 2003, Landlord at its cost shall paint the
interior of the Premises and shall shampoo the carpets.
c. Expansion Premises: Except as otherwise provided herein, Landlord
shall deliver the Premises in its "as is" condition as of the
Expansion Premises Commencement Date except that Landlord at its
sole cost shall provide and install certain work in conjunction with
making the building into that of a single tenant - namely, the
partial removal of the present demising wall and in conjunction with
the removal of said wall. any needed paint touch-up and adjustments
to the HVAC, lighting and fire sprinkler systems Landlord shall be
responsible for assuring that the prior tenant in the Expansion
Premises leaves the Expansion Premises in broom clean condition with
all damage repaired except for normal wear and tear.
36. SECURITY DEPOSITS.
a. Security Deposits Required: The total Security Deposit required to
be held by Landlord at any given time is the sum of Security
Deposits for each portion of the Premises for which the Lease is
then in effect, subject to the reduction provision in (P) 36.b below
and the general provisions of (P) 6.
1) Temporary Premises Security Deposit equals $90,000.00.
2) Original Premises Security Deposit equals $67,710.00 (said
amount is held by Landlord per (P) 2.13 of the Old Lease).
3) Expansion Premises Security Deposit equals $86,940.00.
b. Security Deposit Reduction:
1) Subject to the general provisions of P. 6. and provided that
Tenant has not been in default under this Lease beyond any
applicable cure period, the Security Deposit on the Temporary
Premises shall be returned within five (5) business days of
the Temporary Premises Expiration Date.
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2) Subject to the general provisions of P. 6. and provided that
Tenant has not been in default under this Lease beyond any
applicable cure period, the Security Deposit on the Original
Premises and Expansion Premises combined shall be subject to
reduction as follows:
a) Reduction to two (2) months Rent, upon Tenant achieving a
public equity market capitalization of at least $150
million.
b) Reduction to one (1) months Rent, upon Tenant achieving a
public equity market capitalization of at least $400
million,
37. MISCELLANEOUS PROVISIONS.
a. Time of Essence, Time is of the essence of each provision of this
Lease,
b. Successor. This Lease shall be binding on and inure to the benefit
of the parties and their successors, except as provided (P) 19.
c. Landlord's Consent. Any consent required by Landlord under this
Lease must be granted in writing and may be withheld or conditioned
by Landlord in its sole and absolute discretion unless otherwise
provided.
d. Personal Rights. Notwithstanding any other provision(s) of this
Lease to the contrary, any provisions of this Lease providing for
the renewal, extension or early termination of the Lease and/or for
the expansion of the Premises (to include without limitation rights
to negotiate, rights of first refusal, etc.) shall be (i) personal
to the original Tenant and shall not be assignable or otherwise
transferable except to a Permitted Transferee (either voluntarily or
involuntarily) to any third party for any reason whatsoever, and
(ii) conditioned upon Tenant not then being in default under this
Lease.
e. Year 2000. Notwithstanding any covenant or provision contained in
this Lease to the contrary, Landlord shall have no liability or
responsibility whatsoever to Tenant for (i) any disruption or
interruption in Tenant's business, (ii) any disruption or
interruption in Tenant's use or possession of the Premises, or (iii)
any other damage or consequence suffered or experienced by Tenant,
arising from or relating in any way to the malfunction, shut down or
other abnormal behavior of any computer or computer controlled
system which provides utilities or services to the Premises, or
controls any systems serving the Premises (whether such computer is
within the control of Landlord or otherwise) resulting from the
inability or failure of any such computer or computer controlled
system to recognize the year 2000, and distinguish said year from
the year 1900 (sometimes referred to as the "Y2K problem", or the
"failure to be year 2000 compliant").
f. Commissions. Each party represents that it has not had dealings with
any real estate broker, finder or other person with respect to this
Lease in any manner, except for the Broker(s) identified (P) 1.,
who shall be compensated by Landlord in accordance with the separate
agreement between Landlord and the Broker(s).
g. Other Charges; Legal Fees. If Landlord through no fault of its own
becomes a party to any litigation concerning this Lease or the
Premises by reason of any act or omission of Tenant or Tenant's
authorized representatives, Tenant shall be liable to Landlord for
reasonable attorneys' fees and court costs incurred by Landlord in
the litigation. Should the court render a decision which is
thereafter appealed by any party thereto, Tenant shall be liable to
Landlord for reasonable attorneys' fees and court costs incurred by
Landlord in connection with such appeal.
If either party commences any litigation against the other party or
files an appeal of a decision arising out of or in connection with
the Lease, the prevailing party shall be entitled to recover from
the other party reasonable attorneys' fees and costs of suit. If
Landlord employs a collection agency to recover delinquent charges,
Tenant agrees to pay all collection agency and attorneys' fees
charged to Landlord in addition to Rent, late charges, interest and
other sums payable under this Lease.
h. Landlord's Successors. In the event of a sale or conveyance by
Landlord of the Building containing the Premises, the same shall
operate to release Landlord from any further liability under this
Lease, including as to any Security Deposit to the extent
transferred to Landlord's successor-in-interest, and in such event
Landlord's successor in interest shall be solely responsible for all
further obligations of Landlord under this Lease.
i. Interpretation. This Lease shall be construed and interpreted in
accordance with the laws of the state in which the Premises are
located. This Lease constitutes the entire agreement between the
parties with respect to the Premises, except for such guarantees or
modifications as may be executed in writing by the parties from time
to time. When required by the context of this Lease, the singular
shall include the plural, and the masculine shall include the
feminine and/or neuter. "Party" shall mean Landlord or Tenant. If
more than one person or entity constitutes Landlord or Tenant, the
obligations imposed upon that party shall be joint and several. The
enforceability, invalidity or illegality of any provision shall not
render the other provisions unenforceable, invalid or illegal,
j. Auctions. Tenant shall not conduct, nor permit to be conducted,
either voluntarily or involuntarily, any auction upon the Premises
without first having obtained Landlord's prior written consent.
Notwithstanding
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anything to the contrary in this Lease. Landlord shall not be obligated to
exercise any standard of reasonableness in determining whether to grant such
consent.
k. Conflict. Any conflict between the printed provisions of this Lease and
the typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions.
l. Offer. Preparation of this Lease by Landlord or Landlord's agent and
submission of same to Tenant shall not be deemed an offer to lease to
Tenant. This Lease is not intended to be binding until executed by all
Parties hereto.
m. Amendments. This Lease may be modified only in writing, signed by the
Parties in interest at the time of the modification. The parties shall
amend this Lease from time to time to reflect any adjustments that are
made to the Base Rent or other Rent payable under this Lease. As long as
they do not materially change Tenant's obligations hereunder. Tenant
agrees to make reasonable non-monetary modifications to this Lease as may
be reasonably required by Lender(s) in connection with the obtaining of
normal financing or refinancing of the property of which the Premises are
a part.
n. Construction. The Landlord and Tenant acknowledge that each has had its
counsel review this Lease. and hereby agree that the normal rule of
construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this
Lease or in any amendments or exhibits hereto.
o. Captions. Article, section and paragraph captions are not a part hereof.
p. Exhibits. For reference purposes the Exhibits are listed below:
Exhibit A: The Premises
Exhibit B: Business Park
Exhibit C: Rules and Regulations
Exhibit D: Covenants, Conditions And Restrictions
LIMAR REALTY CORP. #17, a California DOCENT, INC., a Delaware corporation
corporation
By: /s/ Xxxxxxxx X. Xxxxxxxxxxxx By: /s/ Xxxx Xxxxxx
----------------------------------- ---------------------------
Name: Xxxxxxxx X. Xxxxxxxxxxxx Name: Xxxx Xxxxxx
---------------------------
Title: President Title: President & CEO
---------------------------
Date: 10/19/99 Date: 10/8/99
----------------------------------- ---------------------------
By: /s/ Xxxxxxxx X. Xxxxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
----------------------------------- ---------------------------
Name: Xxxxxxxx X. Xxxxxxxxxxxx Name: Xxxxxx X. Xxxxxx
---------------------------
Title: Secretary Title: V.P. & CFO
---------------------------
Date: 10/19/99 Date: 10/7/99
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EXHIBIT A
The Premises
------------
This Exhibit A is attached to and made a part of that certain Lease (the
"Lease") dated September 22, 1999 by and between Limar Realty Corp. #17 as
Landlord and Docent, Inc. as Tenant.
[SITE PLAN APPEARS HERE]
EXHIBIT B
The Business Park
-----------------
This Exhibit B is attached to and made a part of that certain Lease (the
"Lease") dated September 22. 1999 by and between Limar Realty Corp. #17 as
Landlord and Docent. Inc. as Tenant.
The land referred to in this report is situated in the State of
California, County of SANTA XXXXX and is described as follows:
All that certain Real Property in the City of Mountain View, County of Santa
Xxxxx, State of California, described as follows:
All of Parcel 1, as shown upon that certain Map entitled, "Parcel Map". which
Map was filed for record in the Office of the Recorder of the County of Santa
Xxxxx, State of California, on May 8, 1972 in Book 300 of Maps, at Page 43.
EXHIBIT C
Rules & Regulations
-------------------
This Exhibit C is attached to and made a part of that certain Lease dated
September 22, 1999 by and between Limar Realty Corp. #17 as Landlord and Docent,
Inc. as Tenant.
For the purpose of these Rules & Regulations the word Premises shall refer to
the Premises Tenant is leasing and the Property containing the Premises as
described in the Lease.
1. No sign, placard, picture, advertisement, name or notice (collectively,
"Signs") shall be installed or displayed on any part of the Premises
without the prior written consent of Landlord, except that Tenant may post
Signs inside the Building which are not visible from the exterior of the
Building. Landlord shall have the right to remove, at Tenant's expense and
without notice, any sign installed or displayed in violation of this rule.
All approved signs or lettering on doors and walls shall be printed,
painted, affixed or inscribed at the expense of Tenant.
2. Except as consented to in writing by Landlord, no draperies, curtains,
blinds, shades, screens or other devices shall be hung at or used in
connection with any window or exterior door or doors of the Premises and
no awning shall be permitted on any part of the Premises. Tenant shall not
place anything against or near glass partitions or doors or windows which
may appear unsightly from outside the Premises.
3. Neither Tenant nor any employee or invitee of Tenant, shall make any
structural roof or terrace penetrations.
4. Tenant shall not cause any unnecessary labor by carelessness or
indifference to the good order and cleanliness of the Premises. Landlord
shall not in any way be responsible to any Tenant for any loss of property
on the Premises, or for any damage to any Tenant's property.
5. Landlord will furnish Tenant, free of charge, with up to six (6) keys to
the Premises.
6. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's reasonable
instructions in their installation.
7. Tenant shall not place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which
is allowed by law. Landlord shall have the reasonable right to prescribe
the weight, size and position of all equipment, materials, furniture or
other property brought into the Premises. Heavy objects shall, if
considered necessary by Landlord, stand on such platforms as determined by
Landlord to be necessary to properly distribute the weight. Business
machines and mechanical equipment belonging to Tenant, which cause noise
or vibration that may be transmitted to the structure of the Premises to
such a degree as to be objectionable to Landlord, shall be placed and
maintained by Tenant, at Tenant's expense, on vibration eliminators or
other devices sufficient to eliminate noise or vibrations. Landlord will
not be responsible for loss of, or damage to, any such equipment or other
property from any cause, and all damage done to the Premises by
maintaining or moving such equipment or other property shall be repaired
at the expense of Tenant.
8. Tenant shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment.
Tenant shall not use or permit to be used in the Premises any foul or
noxious gas or substance, or permit or allow the Premises to be occupied
or used in a manner offensive or objectionable to Landlord by reason of
noise, odors or vibrations not bring or keep or permit to be brought or
kept in the Premises any animal life form, other than human, except seeing
eye dogs when in the company of their masters.
9. Tenant shall not waste electricity, water or air-conditioning and agrees
to cooperate fully with Landlord to comply with any governmental
energy-saving rules, laws or regulations of which Tenant has actual
notice.
10. Landlord reserves the right, exercisable with one hundred twenty (120)
days prior written notice but without liability to Tenant, to change the
name and street address of the Premises.
11. Tenant shall close and lock the doors of its Premises and entirely shut
off all water faucets or other water apparatus, and other equipment which
is not required to be continuously run.
12. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be
thrown therein. The expense of any breakage, stoppage or damage resulting
for the violation of this rule shall be borne by the Tenant who, or whose
employees or invitees, shall have caused it.
EXHIBIT C
Rules & Regulations
-------------------
(continued)
13. Tenant shall not sell, or permit the retail sale of newspapers, magazines,
periodicals, theater tickets or any other goods or merchandise to the
general public in or on the Premises. Tenant shall not make any
room-to-room solicitation of business from other tenants in the Business
Park. Tenant shall not use the Premises for any business or activity other
than that specifically provided for in Tenants Lease. Notwithstanding the
above, Tenant shall have the right to install vending machines for use by
Tenant, its employees and invitees.
14 Tenant shall not interfere with radio or television broadcasting or
reception from or in neighboring areas.
15. Canvassing, soliciting and distribution of handbills or any other written
materials, and peddling in the Business Park are prohibited, and Tenant
shall cooperate to prevent same.
16. Landlord reserves the right to exclude or expel from the Premises any
person who, in Landlord's judgment, is intoxicated or under the influence
of liquor or drugs or who is in violation of any of the Rules and
Regulations of the Premises or in violation of the CC&R's.
17. Tenant shall store all its trash and garbage within its Premises or in
reasonable locations specifically identified by Landlord for such
purposes. Tenant shall not place in any trash box or receptacle any
material which cannot be disposed of in the ordinary and customary manner
of trash and garbage disposal. All garbage and refuse disposal shall be
made in accordance with reasonable directions issued from time to time by
Landlord.
18. The Premises shall not be used for the storage of merchandise held for
sale to the general public, or for lodging nor shall the Premises by used
for any improper, immoral or objectionable purpose. No cooking shall be
done or permitted by any tenant on the Premises, except that use by Tenant
in its kitchen, if any, located in the Premises and Underwriters
Laboratory's approved equipment for brewing coffee, tea, hot chocolate and
similar beverages and microwaving food shall be permitted, provided that
such kitchen, equipment and use is in accordance with all applicable
federal, state, county and city laws, codes, ordinances, rules and
regulations.
19. Tenant shall not use in any part of the Premises any hand truck except
those equipped with rubber tires and side guards or such other reasonable
material-handling equipment as Landlord may approve.
20. Without the written consent of Landlord, Tenant shall not use the name of
the Business Park in connection with or in promoting or advertising the
business of Tenant except as Tenant's address.
21. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
22. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, Which includes locking doors and securing
other means of entry to the Premises closed.
23. The requirements of Tenant will be attended to only upon appropriate
application to the office of Landlord 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.
24. Tenant shall not park its vehicles in any parking areas outside the
Business Park. Tenant shall not store or abandon vehicles in the Business
Park parking areas nor park any vehicles in the Business Park parking
areas other than automobiles, motorcycles, motor driven or non-motor
driven bicycles, four-wheeled trucks, or other equipment used in the
operation of Tenant's business. Tenant, its agents, employees and invitees
shall not park any one (1) vehicle in more than one (1) parking space.
25. Landlord reserves the right to make such other reasonable Rules and
Regulations as, in its judgment, may from time to time be appropriate for
safety and security, for care and cleanliness of the Premises and for the
preservation of good order therein. Tenant agrees to abide for all such
Rules and Regulations hereinabove stated and any additional Rules and
Regulations which are adopted.
26. 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.
EXHIBIT D
Covenants, Conditions and Restrictions
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This Exhibit D is attached to and made a part of that certain Lease (the
"Lease") dated September 22, 1999 by and between Limar Realty Corp. #17 as
Landlord and Docent. Inc. as Tenant.
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EXHIBIT D
Covenants, Conditions and Restrictions
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(Continued)
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