Exhibit 10.2
TRIPLE NET LEASE
between
Xxxxxx-Xxxx Limited Partnership,
a California limited partnership,
as
Lessor
and
General Magic, Inc.,
a Delaware corporation,
as
Lessee
Premises:
59,293 Rentable Square Feet
at
000 X. Xxxx Xxxxxx
Xxxxxxxxx, XX
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BASIC LEASE PROVISIONS
THIS LEASE ("LEASE") is made and entered into as of the date shown below
in Section 1.01 by and between Xxxxxx-Xxxx Limited Partnership, a California
limited partnership ("LESSOR"), and General Magic, Inc., a Delaware corporation
("LESSEE").
For and in consideration of the rents reserved hereunder and the terms
and conditions hereof, the Lessor hereby rents, demises and leases to Lessee,
and Lessee takes and leases from Lessor, the following Premises all upon the
following terms and conditions:
1.01 DATE OF LEASE (ARTICLE I): For reference purposes, January 3, 2002
1.02 LESSOR (ARTICLE I): Xxxxxx-Xxxx Limited Partnership, a California
limited partnership
1.03 LESSEE (ARTICLE I): General Magic, Inc., a Delaware corporation
1.04 PREMISES (SECTION 2.02): The entire Third Floor, one-half of the
First Floor and two mechanical rooms on
the Second Floor, as depicted on Exhibit
"A" attached hereto
1.05 BUILDING: 000 X. Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx
1.06 RENTABLE AREA OF PREMISES (SECTION 2.02): An agreed 59,293 rentable
square feet
1.07 RENTABLE AREA OF BUILDING (SECTION 2.02): An agreed 116,586
rentable square feet
1.08 PROJECT (SECTION 2.01): 000-000-000 N. Xxxx Avenue, Sunnyvale,
California
1.09 LESSEE'S PROPORTIONATE SHARE (SECTION 8.02): 50.9% of the rentable
area of the Building
17.0% of the rentable
are of the Project
1.10 LEASE TERM (SECTION 3.01): Four (4) years
1.11 COMMENCEMENT DATE OF LEASE TERM (SECTION 3.01): The Lease Term
Commencement Date is July 1, 2002.
1.11.1 RENT COMMENCEMENT DATE (SECTION 4.01): The Rent Commencement Date
shall be July 1, 2002.
1.12 EXPIRATION DATE OF LEASE TERM (SECTION 3.01): June 30, 2006
1.13 OPTION TO EXTEND: One option to extend Lease Term for twenty-four
(24) months beginning July 1, 2006 and expiring, if not sooner terminated, on
June 30, 2008.
1.14 INITIAL BASE RENT (SECTION 4.01): $124,515.30 per month ($2.10 per
square foot NNN), adjusted annually as described below and on Exhibit C -
Schedule of Base Rent.
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1.15 FIRST ADJUSTMENT DATE (SECTION 4.03): On this date, the Base Rent
shall be increased to one hundred three percent (103%) of the Base Rent in
effect immediately preceding the adjustment.
1.16 SUBSEQUENT ADJUSTMENT DATES (SECTION 4.03): Annually, on each
anniversary date of the First Adjustment Date, the Base Rent shall be increased
to one hundred three percent (103%) of the Base Rent in effect immediately
preceding the adjustment.
1.17 USE (SECTION 6.01): General office, Research and Development and
network operation center.
1.18 SECURITY DEPOSIT (ARTICLE V): An amount equal to the sum of two
month's Initial Base Rent payable as follows: On July 1, 2002, Lessee shall
increase the existing Security Deposit of $78,037.20 by $46,478.10 to an amount
equal to one month's Initial Base Rent ($124,515.30). Beginning on August 1,
2002, and on the first day of each of the next five months, Lessee shall
increase the Security Deposit by an amount equal to 1/6th of one month's Initial
Base Rent ($20,752.55) so that by the first day of the seventh month of the
Lease Term, the Security Deposit shall equal two months' Initial Base Rent
($249,030.60).
1.19 PREPAID RENT: [NOT APPLICABLE].
1.20 GUARANTOR (SECTION 21.17): [NOT APPLICABLE]
1.21 LANDLORD'S NOTICE ADDRESS
(SECTION 21.06): Xxxxxx-Xxxx Limited Partnership
c/o Xxx Xxxx Company
Attn: Asset Manager
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
WITH COPY TO: Xxxxxx X. Xxxxxxx, Esq.
00 Xxxxxxx Xxxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
1.22 LESSEE'S NOTICE ADDRESS
(SECTION 21.06): General Magic, Inc.
VP of Finance & CFO
000 X. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
WITH COPY TO: General Magic, Inc.
Legal Department
000 X. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
1.23 BROKERS (SECTION 21.25): [NOT APPLICABLE] No brokers, agents or
finders involved.
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000 XXXXX XXXX XXXXXX
TRIPLE NET LEASE
ARTICLE I
PARTIES
Section 1.01. Parties. This Lease is made by and between Xxxxxx-Xxxx
Limited Partnership, a California limited partnership ("LESSOR"), and General
Magic, Inc., a Delaware corporation ("LESSEE").
ARTICLE II
PROJECT; PREMISES; COMMON AREAS
Section 2.01. Building; Project. This Lease pertains to space located in
the Building (the "BUILDING") situated on the real property located in the City
of Sunnyvale, County of Santa Xxxxx, State of California, commonly known as 000
X. Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx, more particularly described in the site
plan marked Exhibit "A" which is attached hereto and incorporated herein. Said
real property, including the land, the Building, and the two other buildings
known as 410 and 000 X. Xxxx Xxxxxx as well as all other improvements thereon,
is called "the PROJECT."
Section 2.02. Premises. Lessor hereby leases to Lessee and Lessee leases
from Lessor for the Lease Term, at the rental, and upon all of the conditions
set forth herein, that certain space identified in the Basic Lease Provisions,
located in the Building. The space leased hereunder is called "the PREMISES,"
the approximate configuration and location of the Premises is outlined on the
site plan attached. Lessor and Lessee irrevocably agree that the Rentable Area
of the Premises, Building and Project specified in the Basic Lease Provisions
shall be final and binding on the parties notwithstanding that the actual
Rentable Area as constructed may differ, provided that if the Rentable Area of
the Building or the Rentable Area of the Project is reduced or increased or if
one or more additional building(s) is added to the Project the Rentable Area of
the Building or the Project, as applicable, shall be revised by Lessor to
reflect such change and the parties shall execute an amendment to this Lease to
confirm such charge as well as any consequent charge of Lessee's proportionate
share.
Section 2.03. Common Area. As used in this Lease, the "COMMON AREA" or
"COMMON AREAS" shall include all areas and improvements within the exterior
boundaries of the Project which are now or hereafter held by Lessor for use by
itself, its authorized licensees or invitees, or which are provided by Lessor
for the common use of Lessee and other tenants and their respective employees
and invitees, or by persons otherwise entitled to occupy space in the Project,
including, without limitation, streets, driveways, truckways, covered walkways,
all canopies (both decorative and those which extend
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from exterior walls or the roof), parking lots, delivery passages, loading
docks, sidewalks, ramps, landscaped and planted areas, exterior stairways, bus
stops, retaining walls, as well as interior space consisting of elevators,
lobbies, restrooms, corridors and hallways not located within the Premises or
any tenant and janitor's closets, mechanical and telephone rooms not leased to
any tenant. Lessor may make changes at any time and from time to time in the
size, shape, location, number and extent of the Common Area and no such change
shall constitute an eviction, constructive or otherwise, or entitle Lessee to
any abatement of rent or otherwise affect Lessee's obligations under this Lease.
Lessor reserves the right to install kiosks, parking structures or other free
standing structures within the outside Common Area, and to erect or mount
antennas, satellites, or other transmission or communication devices on the roof
of the Building, and to install piping, conduit, wiring and the like above the
dropped ceiling and within the walls of the Premises, without abatement of rent
and without affecting Lessee's obligations under this Lease. Notwithstanding the
foregoing, Lessor agrees not to change the Common Area so as to materially and
unreasonably interfere with Lessee's use of the Premises.
Section 2.04 Parking. Lessor shall provide Lessee with parking spaces
within the Common Area in the ratio to space within the Building as required by
law, which is three (3) spaces per one thousand (1,000) square feet of interior
space within the Building or, if greater, Lessee's Proportionate Share of
parking at the Project, as the same shall exist from time to time. In the event
Lessor elects or is required by any law to limit or control parking at the
Premises, whether by validation of parking tickets or any other method of
assessment or as part of a transportation demand management plan "TDM," Lessee
agrees to participate in such validation or assessment program or TDM under such
reasonable rules and regulations as are from time to time established by Lessor.
ARTICLE III
LEASE TERM
Section 3.01. Lease Term. The term of this Lease (the "LEASE TERM")
shall commence on the Commencement Date (the "COMMENCEMENT DATE") as set forth
in the Basic Lease Provisions and, unless sooner terminated, shall expire on the
Expiration Date (the "EXPIRATION DATE") as set forth in the Basic Lease
Provisions.
Section 3.02. Option to Extend Term.
(a) Exercise. Lessee is given one (1) option to extend the
Lease Term ("Option to Extend") for a two (2) year period ("Extended Term")
beginning on the date immediately following the date on which the initial Lease
Term would otherwise expire, which option may be exercised only by written
notice ("Option Notice") from Lessee to Lessor given not less than six (6)
months prior to the end of the initial Lease Term ("Option Exercise Date");
provided, however, if Lessee is in material default under this Lease (beyond the
expiration of any applicable notice and cure period) on the Option Exercise Date
or on any day thereafter on or before the last day of the initial Lease Term,
the Option Notice shall be totally ineffective, and this Lease shall expire on
the last day of the initial Lease Term, if not sooner
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terminated. The right of Lessee to exercise an Option to Extend shall not be
affected by any sublease or assignment of this Lease previously entered into by
Lessee pursuant to the provisions of this Lease.
(b) Extended Term Rent. In the event Lessee exercises its
Option to Extend set forth herein, all the terms and conditions of this Lease
shall continue to apply except that the Base Rent payable by Lessee during each
Option Term shall be equal to one hundred percent (100%) of Fair Market Rent
(defined below), as determined under subparagraph (c) below. "Fair Market Rent"
shall mean the effective rate being charged (including periodic adjustments
thereto as applicable during the period of the Extended Term) for comparable
space in similar buildings in the vicinity, i.e., of a similar age and quality
considering any recent renovations or modernization, and floor plate size or, if
such comparable space is not available, adjustments shall be made in the
determination of Fair Market Rent to reflect the age and quality of the Building
and Premises as contrasted to other buildings used for comparison purposes, with
similar amenities, taking into consideration: size, location, floor level,
leasehold improvements or allowances provided or to be provided, term of the
lease, extent of services to be provided, the time that the particular rate
under consideration became or is to become effective, and any other relevant
terms or conditions applicable to both new and renewing tenants, but in no event
less than the monthly Base Rent prevailing during the last year of the initial
Lease Term or Extended Term, as applicable. Subleased space or space which is
leased pursuant to right of first refusal or options at a stipulated rent below
one hundred (100%) percent of Fair Market Value or which is subject to expansion
rights of another tenant shall not be "comparable space" and shall not be
considered.
(c) Determination of Fair Market Rent.
(i) Negotiation. If Lessee so exercises its Option to
Extend in a timely manner, the parties shall then meet in good faith to
negotiate the Base Rent for the Premises for the Extended Term, during the first
thirty (30) days after the date of the delivery by Lessee of the Option Notice
(the "Negotiation Period"). If, during the Negotiation Period, the parties agree
on the Base Rent applicable to the Premises for the Extended Term, then such
agreed amount shall be the Base Rent payable by Lessee during the Extended Term.
(ii) Arbitration. In the event that the parties are
unable to agree on the Base Rent for the Premises within the Negotiation Period,
then within ten (10) days after the expiration of the Negotiation Period, each
party shall separately designate to the other in writing an appraiser to make
this determination. Each appraiser designated shall be a member of MAI and shall
have at least ten (10) years experience in appraising commercial real property,
of similar quality and use as the Premises, in Santa Xxxxx County. The failure
of either party to appoint an appraiser within the time allowed shall be deemed
equivalent to appointing the appraiser appointed by the other party, who shall
then determine the Fair Market Rent for the Premises for the Extended Term.
Within five (5) business days of their appointment, the two designated
appraisers shall jointly designate a third similarly qualified appraiser. Within
thirty (30) days after their appointment, each of the two appointed appraisers
shall submit to the third appraiser a sealed envelope containing such appointed
appraiser's good faith determination of the Fair Market Rent for the Premises
for the Extended Term; concurrently with such delivery, each such appraiser
shall deliver a copy of his or her determination to the other appraiser. The
third appraiser shall within ten (10) days following receipt of such
submissions, then determine which of the two appraisers'
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determinations most closely reflects Fair Market Rent as defined above. The
determination most closely reflecting the third appraiser's determination shall
be deemed to be the Fair Market Rent for the Premises during the Extended Term;
the third appraiser shall have no rights to adjust, amend or otherwise alter the
determinations made by the appraiser selected by the parties, but must select
one or the other of such appraisers' submissions. The determination by such
third appraiser shall be final and binding upon the parties. Said third
appraiser shall, upon selecting the determination which most closely resembles
Fair Market Rent, concurrently notify both parties hereto. The Base Rent for the
Extended Term shall be the determination so selected. The parties shall share
the appraisal expenses equally. If the Extended Term begins prior to the
determination of Fair Market Rent, Lessee shall pay monthly installments of Base
Rent equal to one hundred five percent (105%) of the monthly installment of Base
Rent in effect for the last year of the initial Lease Term (in lieu of "holdover
rent" payable under Section 20.02). Once a determination is made, any over
payment or under payment shall be reimbursed as a credit against, or paid by
adding to, the monthly installment of Base Rent next falling due.
ARTICLE IV
RENT: SPECIAL NET LEASE
Section 4.01. Base Rent. Beginning on the Rent Commencement Date set
forth in the Basic Lease Provisions, Lessee shall pay to Lessor as Base Rent for
the Premises in advance, on the first day of each calendar month of the Lease
Term, the Base Rent amount set forth in the Basic Lease Provisions, subject to
the adjustments set forth in the Basic Lease Provisions (as further described in
Section 4.03, below). Base Rent for any period during the Lease Term hereof
which is for less than one month shall be a pro rata portion of the monthly
installment. Base Rent and Additional Rent shall be paid in lawful money of the
United States without offset, deduction, prior notice, or demand to Lessor at
the address stated herein or to such other persons or at such other places as
Lessor may designate in writing.
Section 4.02. Absolute Triple Net Lease; Additional Rent. This Lease is
what is commonly called a "NET, NET, NET LEASE," it being understood that the
Lessor shall receive the Base Rent set forth in Section 4.01 free and clear of
any and all other impositions, taxes, liens, charges or expenses of any nature.
In addition to the Base Rent reserved by Section 4.01, Lessee shall pay its
proportionate share of all insurance premiums, taxes, assessments, operating
charges, maintenance charges, and any other charges, costs and expenses which
arise or may be contemplated under any provisions of this Lease for the Building
and the entire Project, excluding management fees, and shall pay its related
Proportionate Share thereof, during the Lease Term hereof. All of such charges,
costs and expenses, and all damages, costs, and expenses which Lessor may incur
by reason of any default of Lessee, shall be deemed to be and constitute
Additional Rent, and upon the failure of Lessee to pay any Additional Rent,
Lessor shall have the same rights and remedies as otherwise provided in this
Lease for the failure of Lessee to pay rent. It is the intention of the parties
hereto that this Lease shall not be terminable for any reason by Lessee, and
that Lessee shall in no event be entitled to any abatement of or reduction in
rent payable under this Lease, except as herein expressly provided in Sections
10.03, 15.01 and 15.03. Any present or future law to the
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contrary shall not alter this agreement of the parties. Notwithstanding the
foregoing, there shall be excluded from Additional Rent the following:
(i) The cost of damage and repairs to the extent necessitated by the
negligence or willful misconduct of Lessor or of Lessor's agents,
employees, contractors or invitees;
(ii) Any cost or expense incurred by reason of the remediation or
clean-up of any contamination of the Building or the Project, or
the soils or ground water underlying the Building or the Project,
by hazardous materials or toxic substances, except to the extent
such contamination results from the activities of Lessee or its
agents, employees, contractors, invitees or visitors;
(iii) Interest, principal, points and fees on debts or amortization on
any mortgage or mortgages or any other debt instrument
encumbering the Project or any portion thereof;
(iv) Costs of any items (including, but not limited to, costs incurred
by Lessor for the repair of damage to the Project or for items
which are reimbursable under any contractor, manufacturer or
supplier warranty), to the extent Lessor has received
reimbursement for such costs;
(v) Overhead costs and profit increment paid to subsidiaries or
affiliates of Lessor for services on or for the Building or the
Project, to the extent only that the cost of such services exceed
competitive costs of such services were they not so rendered by a
subsidiary or affiliate;
(vi) Legal fees, brokerage commissions, advertising costs, or other
related expenses incurred in connection with the leasing of the
Building or the Project or with the enforcement of Lessor's title
to or interest in the Building or the Project or any part
thereof, provided, that nothing herein is meant to alter Lessee's
obligations under Section 13.04;
(vii) Executive salaries or salaries of service personnel to the extent
that such executives or service personnel perform services other
than in connection with the operation, repair or maintenance of
the Building or the Project;
(viii) Costs to repair what Lessee proves were latent defects in the
original construction of the Building;
(ix) Capital expenditures for new (as opposed to replacement)
improvements at the Project, e.g., parking garage would be a new
improvement;
(x) Lessor's general corporate overhead and general and
administrative expenses not related to the Building or Project;
(xi) Wages or any other compensation for any management employee not
working on-site full-time;
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(xii) Wages or any other compensation for management of the Building;
(xiii) Any leasing or legal costs associated with other tenants;
(xiv) Costs for which Lessor has received reimbursement from insurers;
(xv) Interest or any other charges due on debt;
(xvi) Mortgage payments;
(xvii) Ground lease payments;
(xviii) Promotional or advertising costs; and
(xix) Taxes or assessments on land or improvements other than the
Project.
Section 4.03. Adjustment of Base Rent. Beginning on the first day of the
13th full calendar month and on each anniversary date thereafter during the
Lease Term ("ADJUSTMENT DATE"), Base Rent shall increase automatically and
without notice as provided for in the Basic Lease Provisions. Lessee thereafter
shall pay the monthly installments of Base Rent due under this Lease at the
increased rate until the next Adjustment Date.
ARTICLE V
SECURITY DEPOSIT
Section 5.01. Security Deposit. Lessee shall deposit with Lessor, upon
execution of this Lease, the Security Deposit set forth in the Basic Lease
Provisions as security for Lessee's faithful performance of Lessee's obligations
hereunder. If Lessee fails to timely pay rent or other amounts due hereunder, or
otherwise fails to timely observe or perform any provision of this Lease on
Lessee's part to be observed or performed after any applicable cure period set
forth in Section 14, below (or immediately if Lessor is legally prevented from
giving a default notice by court order, including, without limitation, the
automatic stay in a bankruptcy proceeding, without regard to any such notice or
cure period), Lessor may, without waiving or releasing Lessee from any
obligation under this Lease, and without waiving Lessor's right to treat such
failure as a default hereof or any other right or remedy with respect thereto,
use, apply, or retain all or any portion of said Security Deposit for the
payment of any such rent or other amount or for the payment of any other sum to
which Lessor may become obligated by reason of Lessee's failure to timely
observe or perform any such provision of this Lease, or to so compensate Lessor
for any loss or damage which Lessor may suffer thereby, including, without
limitation, damages described in California Civil Code Section 1951.2 and
including any attorneys' fees Lessor incurs in connection with drawing on the
letter of credit. If Lessor so uses or applies all or any portion of said
Security Deposit, Lessee shall within five (5) business days after written
demand therefor deposit cash with Lessor in an amount sufficient to restore said
Security Deposit to the full amount hereinabove stated and Lessee's failure to
do so shall be a
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material breach of this Lease. The Security Deposit shall be returned to Lessee
(or, at Lessee's option, to the last assignee, if any, of Lessee's interest
hereunder) at the expiration of the Lease Term, less any amount Lessor is
allowed to retain pursuant to this Section 5.01.
Section 5.02. No Trust Created. No trust relationship is created herein
between Lessor and Lessee with respect to the Security Deposit, and Lessor may
commingle it, use it in ordinary business, transfer or assign it, or use it in
any combination of those ways. No interest shall be paid or payable with respect
to the Security Deposit. In the event of termination of Lessor's interest in
this Lease, Lessor shall transfer or credit said Security Deposit to Lessor's
successor in interest, whereupon Lessee agrees that Lessor shall be released
automatically from all liability for the return of the Security Deposit or any
accounting therefore.
ARTICLE VI
USE
Section 6.01. Use. The Premises shall be used and occupied only for the
use stated in the Basic Lease Provisions and for no other use, in compliance
with the Rules and Regulations attached hereto as Exhibit "B" and incorporated
herein, and in compliance with such additional reasonable rules and regulations
that may be imposed by Lessor from time to time on the Premises, Building or the
Project and which Lessee has received at least ten (10) days prior notice of
such new rule and regulation. Lessee shall not use nor permit the use of the
Premises, Building or Project in any manner that will create or tend to create
waste or a nuisance or disturb or tend to disturb any other tenants or occupants
of the Building or Project or injure or tend to injure the reputation,
marketability or value of the Premises, Building or Project.
Section 6.02. Compliance with Law.
(a) Lessee shall, at Lessee's sole cost and expense, comply promptly with
all applicable laws, statutes, ordinances, rules, regulations, orders,
covenants, and restrictions of record in effect during the Lease Term or any
part of the Lease Term hereof, concerning the Premises or the use by Lessee of
the Premises, including, without limitation, the obligation to alter or maintain
the Premises in compliance and conformity with all laws relating to the
condition, use or occupancy of the Premises during the Lease Term, whether the
cost or expense is foreseeable or not or substantial or unsubstantial. Lessee at
its expense shall take all steps required to cause the Premises to be kept,
maintained, used, and occupied in compliance with the Americans With
Disabilities Act, as such Act may be amended from time to time. Lessee shall not
place any loads upon the floors, walls, or ceilings in excess of the maximum
designed load determined by the Lessor or which may endanger the structure of
the Premises or the Building.
(b) By executing this Lease, Lessee acknowledges that it has reviewed and
satisfied itself as to its compliance, or intended compliance, with the
applicable zoning and permit laws, hazardous waste requirements, and all other
statutes, laws, or ordinances relevant to the uses stated in Section 6.01,
above.
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(c) Notwithstanding anything to the contrary in this Section 6.02
Lessee's obligations under this Section 6.02 shall not include (i) making any
alterations to the Premises which are legally required to be made under a law
not affecting the Premises prior to the Commencement Date except to the extent
such alterations are required due to Lessee's particular use of the Premises or
alterations to the Premises made by or on behalf of Lessee or (ii) any
remediation of Hazardous Materials, except to the extent that the need for same
arises from an act or omission of Lessee, its employees, agents, contractors,
invitees or visitors.
Section 6.03. Rules and Regulations. Lessee shall at all times comply
with the Rules and Regulations attached hereto as Exhibit "B" and incorporated
herein, and comply with such amendments, modifications, and additions thereto
that may reasonably be imposed by Lessor from time to time on the Premises,
Building or Project and which Lessee has received at least ten (10) days prior
notice of such new rules and regulations. Such Rules and Regulations may
include, but are not limited to, provisions governing the management, safety,
care and cleanliness of the Premises, Building or Project, and the parking of
vehicles and the preservation of good order in the Project, for the convenience
of other occupants and tenants of the Project. The violation of any such Rules
and Regulations shall be deemed a material breach of this Lease if Lessee fails
to cure such breach within the cure period provided in Section 14.01, below.
Lessor shall not be liable to Lessee for the failure of any other tenant,
lessee, occupant, invitee or visitor to comply with such Rules and Regulations.
Section 6.04. Condition of Premises.
(a) Lessee is now, has been and will be on the Commencement Date in
possession of the Premises, and Lessee warrants to Lessor that the Premises are
and shall be in good condition on the Commencement Date, and all Alterations by
Lessee were built substantially in accordance with approved plans therefor, in a
workmanlike manner, and that the Premises on the Commencement Date will be in
conformance with all requirements of statutes, ordinances, laws, building codes,
regulations, rules, CC&Rs, insurance underwriting and the Americans with
Disability Act which are applicable to the Premises on the Commencement Date. In
the event that it is determined that any of these warranties has been violated,
then it shall be the obligation of Lessee, after delivery of written notice from
Lessor setting forth with specificity the nature of the violation, to promptly,
at Lessee's sole cost, rectify such violation.
(b) Lessee hereby accepts the Premises in their condition existing as of
the Commencement Date, subject to all zoning, municipal, county, state, and
other applicable laws governing and regulating the use of the Premises, and any
covenants or restrictions of record, and hereby accepts this Lease subject
thereto. Lessee acknowledges that neither Lessor nor Lessor's agent has made any
representation or warranty at all as to the present or future suitability of the
Premises for the conduct of Lessee's business nor any representation or warranty
as to any other aspect of the Premises or Project.
(c) Lessee hereby confirms that it has examined and inspected the
Premises, and accepts them in their "AS IS" condition. Lessor makes no warranty
of any kind concerning the Premises, the Building or Project of which they are a
part, including any warranty concerning latent defects, any warranty of fitness
for use and any other express or implied warranty (including any warranty of
merchantability).
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(d) Notwithstanding anything to the contrary in this Section 6.04
Lessee's obligations under this Section 6.04 shall not include (i) making any
alterations to the Premises which are legally required to be made under a law
not affecting the Premises prior to the Commencement Date except to the extent
such alterations are required due to Lessee's particular use of the Premises or
alterations to the Premises made by or on behalf of Lessee or (ii) any
remediation of Hazardous Materials, except to the extent that the need for same
arises from an act or omission of Lessee, its employees, agents, contractors,
invitees or visitors.
ARTICLE VII
HAZARDOUS OR TOXIC MATERIALS
Section 7.01. Covenants and Indemnities. Lessee shall not itself, nor
allow or permit any agent, contractor, or other person or entity acting on its
behalf or any vendor, guest, invitee or visitor of Lessee to, bring, allow, use,
or permit upon the Premises, Building or Project, or generate or create at or
emit or dispose from the Premises, Building or Project, any toxic or hazardous
materials or waste other than in small quantities customarily used in its
respective businesses conducted at the Project ("TOXIC MATERIALS"). Lessee shall
comply, at its sole cost, with all laws pertaining to such Toxic Materials.
Lessee shall indemnify and hold Lessor harmless from any claims, liabilities,
costs, or expenses incurred or suffered by Lessor arising from such bringing,
allowing, using, permitting, generating, creating, or emitting or disposing of
Toxic Materials by Lessee or any agent, or other person or entity acting on its
behalf or any vendor, guest, invitee or visitor of Lessee. Said indemnification
and hold harmless obligations include, without limitation, all of the following:
(i) claims, liabilities, costs or expenses resulting from or based upon
administrative, judicial (civil or criminal), or other action, legal or
equitable, brought by any private or public person under common law or any
Federal, State, County or Municipal law, ordinance or regulation, (ii) claims,
liabilities, costs, or expenses pertaining to the cleanup or containment of
Toxic Materials, the identification of the pollutants in the Toxic Materials,
the identification of the scope of any environmental contamination, the removal
of pollutants from soils, the provision of an alternative public drinking water
source, or the long term monitoring of ground water and surface waters, and
(iii) all costs of defending such claims. All hold harmless and indemnity
obligations hereunder shall survive the expiration or termination of this Lease.
Section 7.02. Definition. As used in this Lease, "TOXIC MATERIALS"
includes, without limitation, any toxic or hazardous gaseous, liquid, or solid
materials or waste, or any material or substance having characteristics of
ignitability, corrosivity, reactivity, inflammability, or extraction procedure
toxicity, or substances or materials which are listed on any of the
Environmental Protection Agency's lists of hazardous wastes or in CERCLA or RCRA
(42 U.S.C. '9601 et seq. and '6901 et seq., respectively) or which are
identified in Sections 66680 through 66685 of Title 22 of the California Code of
Regulations, as the same may be amended from time to time.
ARTICLE VIII
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MAINTENANCE, REPAIRS AND ALTERATIONS; PARKING FEES
Section 8.01. Maintenance - Premises. Throughout the Lease Term, Lessee
agrees to keep and maintain all improvements and appurtenances in or serving
only the Premises, including all sewer connections, plumbing, electrical,
lighting, heating and cooling systems located within the Premises, appliances,
fixtures, wiring, and glass, in the same good order, condition and repair as
they are in on the Commencement Date, or may be put in during the Lease Term,
reasonable use and wear excepted. Lessee hereby expressly waives the provisions
of any law permitting repairs by a tenant at the expense of a landlord,
including, without limitation, all rights Lessee may have under Sections 1941
and 1942 of the California Civil Code. Lessee agrees to keep the Premises clean
and in sanitary condition as required by the health, sanitary and police
ordinances and regulations of any political subdivision having jurisdiction.
Lessee further agrees to keep the interior of the Premises, such as the windows,
floors, walls, ceilings, doors, showcases and fixtures, and all of Lessee's
personal property therein, clean and neat in appearance and to remove all trash
and debris which may be found in or around the Premises. If Lessee refuses or
neglects to commence such repairs and/or maintenance required under this Lease,
or Lessee does not diligently prosecute the same to completion within five (5)
days after written notice thereof, then Lessor may enter the Premises and cause
such repairs and/or maintenance to be made. Lessee agrees that upon demand, it
shall pay to Lessor the cost of any such repairs, together with accrued interest
from the date of payment at the prime rate plus two percent (2%), with the prime
rate being the prime commercial lending rate then in effect at Bank of America.
Notwithstanding anything to the contrary above, if Lessee fails to perform any
of its obligations under this Section 8.01, Lessor may elect to enter into a
maintenance contract with a third party for the provision of all or a part of
Lessee's maintenance obligations provided that such third party is a first class
contractor and the contract is at market rates. Upon such election, Lessee shall
be relieved from its obligations to perform only those maintenance obligations
covered by the maintenance contract, and Lessee shall bear its proportionate
share of the costs of such maintenance contract which shall be paid in advance
on a monthly basis with Lessee's rent payments.
Section 8.02. Maintenance - Building and Common Areas.
(a) Lessor shall be responsible for maintaining in good order,
condition, and repair, the foundations, exterior walls (excluding the interior
surface of exterior walls), outside windows, plate glass and doors (other than
plate glass and doors located within a tenant's premises), outside downspouts
and gutters, roof, roof membrane and, to the extent installed by Lessor,
plumbing, HVAC, and electrical and lighting facilities and equipment and
telecommunication cabling, wiring and risers servicing the Building and/or the
Common Areas; provided, however, that Lessee shall pay the cost of any repairs
occasioned by any act or omission of Lessee or of Lessee's agents, contractors,
visitors, or invitees. Lessee shall have the obligation to notify Lessor, in
writing, of any repairs or maintenance to the Common Areas which may be
required, and Lessor shall have a reasonable time to make such repairs.
(b) Lessee shall pay to Lessor, as Additional Rent, in the manner and at
the time provided below, Lessee's Proportionate Share, of all costs and expenses
incurred by Lessor in the operation, maintenance and repair of the Building and
the Common Areas of the Building and Project during the Lease Term, subject to
the exclusions provided in Section 4.02. Such costs and expenses shall include,
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without limiting the generality of the foregoing, all maintenance, pest control,
security (if provided), gardening, landscaping, cost of public liability,
property damage, vandalism and malicious mischief, earthquake, and other
insurance deemed necessary by Lessor, real property taxes, property management
costs and Lessee's Proportionate Share of Common Area expenses, advertising,
painting, lighting, cleaning, trash removal, depreciation of equipment, fire
protection, and similar items.
(c) To the extent any replacement is deemed a capital expenditure under
generally accepted accounting principals as applied in good faith by Lessor's
accountant, the portions of such capital expenditure, together with interest
thereon at the Agreed Rate, for any single replacement item at the Building in
excess of Ten Thousand Dollars ($10,000) or at the Project Common Areas in
excess of Fifty Thousand Dollars ($50,000.00) shall be amortized over the
remaining Lease Term for the useful life of such replacement item within the
numerator being the number of months remaining in the Lease Term and the
denominator being the number of months of the "useful life" of the improvements.
Lessee shall be obligated for such amortized portion of any such expenditure in
equal monthly installments due and payable with each installment of Base Rent.
Lessor shall utilize accounting practices commonly utilized in the commercial
real estate industry in determining useful life.
Section 8.03. Impounds.
(a) Lessee shall pay to Lessor, in addition to any other payments
required under this Lease, a monthly advance installment, payable at the same
time as the monthly Base Rent, as estimated by Lessor, for all common area
expenses and other applicable costs, other than rent, which are payable by
Lessee under the terms of this Lease. Lessor shall furnish to Lessee a written
estimate of the monthly (or yearly) expenses payable hereunder, which may be
adjusted by Lessor as necessary from time to time, which shall form the basis
for the monthly impound. Within ninety (90) days after the end of each lease
year (or calendar year, at the option of Lessor), Lessor shall furnish to Lessee
a statement showing the actual expenses incurred during such period, and the
parties shall, within thirty (30) days after the date of such statement, make
any payment necessary to adjust the estimated payments made by Lessee to
Lessee's actual proportionate share of such expenses for such period. All moneys
paid to Lessor under this Article may be intermingled with other moneys of
Lessor and shall not bear interest. In the event of a default in the obligations
of Lessee to perform under this Lease, then any balance remaining from funds
paid to Lessor hereunder may, at the option of Lessor, be applied to the payment
of any monetary default of Lessee in lieu of being applied to the payment of
such expenses.
(b) In the sole discretion of Lessor, in lieu of impounding, Lessor may
choose from time to time, to xxxx Lessee monthly for Lessee's Proportionate
Share of the expenses payable hereunder, which Proportionate Share may be based
upon the previous month's actual costs and expenses. Lessee shall pay such
proportionate share within fifteen (15) days of receipt of said billing
statement from Lessor.
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(c) Nothing herein shall be read to permit Lessor to xxxx for the same
cost or expense twice, i.e., it cannot be billed under both (a) and (b) above or
to require Lessee to pay any actuals for a prior month and estimates for the
current month in the conversion month.
Section 8.04. Alterations and Additions. No alterations, changes,
improvements or additions shall be made to the Premises ("ALTERATIONS") by
Lessee without the prior written consent of Lessor, which Lessor will either
grant or withhold, in its reasonable discretion, by reply given within fourteen
(14) days after receipt of request therefor, provided, that, if Lessor fails to
give consent within said fourteen (14) days, consent shall be deemed to have
been withheld, provided that Lessee shall be permitted to make Alterations which
do not collectively require the expenditure of more than $50,000 in any twelve
(12) month period without Lessor's consent (but otherwise subject to all
provisions of this Section 8.04) if such Alterations do not affect the Building
structural components or systems or affect the exterior appearance of the
Premises, Building or Project. As a condition to any such consent, Lessee agrees
to remove any such Alterations at the expiration of the Lease Term and to
restore the Premises to their prior condition at Lessor's election to be given
at any time on or before thirty (30) days prior to the Expiration Date or within
the thirty (30) days after any date of sooner termination provided that Lessee
may request, as part of its request for consent that Lessor elects whether it
will require removal of the Alteration(s) under construction and Lessor will
notify Lessee of such election in the grant of consent if granted. As a further
condition to giving such consent to any Alteration which itself, or in
conjunction with related Alterations, exceeds Fifty Thousand Dollars ($50,000)
in cost, Lessor may require Lessee to provide Lessor, at Lessee's sole cost and
expense, with a lien and completion bond in an amount equal to one and one-half
(1/2) times the estimated cost of such Alterations, to insure Lessor against any
liability for mechanic's and materialmen's liens and to insure completion of the
work. All Alterations to be made to the Premises shall be under the supervision
of a competent California licensed architect or competent California licensed
structural engineer and made in accordance with plans and specifications which
have been furnished to and approved by Lessor prior to commencement of work.
Lessee agrees to advise Lessor in writing, and at least ten (10) days in
advance, of the date upon which any Alterations will commence in order to permit
Lessor to post a notice of non-responsibility. All Alterations shall be
constructed in good and workmanlike manner in accordance with all ordinances and
laws relating thereto. Any Alterations to or on the Premises shall be deemed the
property and responsibility of Lessee during the Lease Term, but remain for the
benefit of and become the property of Lessor as of the end of the Lease Term,
unless Lessor requires the removal by giving Lessee written notice specified
above. As a further condition to such consent, and whether or not consent is
given, Lessee shall reimburse Lessor upon demand for any reasonable
architectural, engineering, attorney or other professional or consultant fee
incurred by Lessor in connection with consideration of Lessee's request for
consent.
Section 8.05. This section has been intentionally deleted.
Section 8.06. This section has been intentionally deleted.
Section 8.07. Plumbing. Lessee shall not use the plumbing facilities for
any purpose other than that for which they were constructed. The expense of any
breakage, stoppage or other damage relating to the plumbing and resulting from
the introduction by Lessee, its agents, employees, invitees or
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trespassers of foreign substances into the plumbing facilities shall be borne by
Lessee and paid to Lessor within five (5) days after demand.
Section 8.08. Tenant Improvements and Lessor's Work. No Tenant Improvements to
the Premises are to be provided by Lessor. Within six (6) months after the
execution of this Lease by Lessee, Lessor shall install an elevator cab in the
Building's existing unused elevator shaft at its sole cost and expense.
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ARTICLE IX
INSURANCE
Section 9.01. Property/Rental Insurance - Premises. During the Lease
Term of this Lease, Lessor shall keep the Premises, Building or Project insured
against loss or damage by fire and those risks normally included in the Lease
Term "all risk" including (a) flood coverage, (b) earthquake coverage at the
election of Lessor, (c) coverage for loss of rents, both Base Rent and
Additional Rent, for an eighteen (18) month period, and (d) boiler and machinery
coverage if the Lessor deems such coverage necessary. Any deductibles shall be
paid by Lessee provided that to the extent any deductible is in excess of
$10,000.00, the excess shall be treated as a capital expenditure pursuant to
Section 8.02(c). The amount of such insurance shall be not less than one hundred
percent (100%) of the replacement value of the Premises, Building or Project.
Any recovery received from said insurance policy shall be paid to Lessor or to
any lender with whom Lessor has a right to same. Lessee, in addition to the rent
and other charges provided herein, agrees to pay to Lessor its Proportionate
Share of the premiums for all such insurance. The insurance premiums shall be
paid in accordance with Article VIII. Lessor has disclosed to Lessee's
satisfaction the type of insurance policies currently carried by Lessor and
described above, as well as the associated premiums and deductibles thereof.
Section 9.02. Property Insurance - Fixtures and Inventory. During the
Lease Term, Lessee shall, at its sole expense, maintain insurance with "all
risk" coverage on any fixtures, leasehold improvements, furnishings,
merchandise, equipment, or personal property in or on the Premises, whether in
place as of the date hereof or installed hereafter, for the full replacement
value thereof, and Lessor shall not have any responsibility nor pay any costs
for maintaining any types of such insurance. Any deductibles shall be paid by
Lessee.
Section 9.03. Lessor's Liability Insurance. During the Lease Term,
Lessor shall maintain a policy or policies of comprehensive general liability
insurance insuring Lessor (and such others as designated by Lessor) against
liability for bodily injury, death and property damage on or about the Premises,
Building or Project (including the Common Areas of the Building and Project),
with combined single limit coverage in an amount to be determined by Lessor in
its sole discretion, provided that, if ownership of the Building should change
during the Lease Term, Lessee's Proportionate Share of such premiums shall not
be increased by any premium increase to the extent it results from the Building
no longer being insured under a blanket policy. Lessee, in addition to the rent
and other charges provided herein, agrees to pay to Lessor its Proportionate
Share of the premiums for all such insurance. The insurance premiums shall be
paid in accordance with Article VIII.
Section 9.04. Lessee's Liability Insurance. During the Lease Term,
Lessee shall, at its sole expense, maintain for the mutual benefit of Lessor and
Lessee, comprehensive general liability and property damage insurance against
claims for bodily injury, death or property damage occurring in or about the
Premises or arising out of the use or occupancy of the Premises, with combined
single limit coverage of not less than Two Million Dollars ($2,000,000). The
limits of such insurance shall not limit the liability of Lessee. Lessee shall
furnish to Lessor prior to the Commencement Date, and at least thirty
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(30) days prior to the expiration date of any policy, certificates indicating
that the liability insurance required by Lessee above is in full force and
effect; that Lessor has been named as an additional insured; and that all such
policies will not be canceled unless thirty (30) days' prior written notice of
the proposed cancellation has been given to Lessor. The insurance shall be with
insurers approved by Lessor and with policies in form satisfactory to Lessor,
provided however, that such approval shall not be unreasonably withheld. Said
policies shall provide that Lessor, although an additional insured, may recover
for any loss suffered by Lessor by reason of Lessee's negligence and shall
include a broad form liability endorsement.
Section 9.05. Waiver of Subrogation. Lessor hereby releases Lessee, and
Lessee hereby releases Lessor, and their respective officers, agents, employees
and servants, from any and all claims or demands of damages, loss, expense, or
injury to the Premises, Building or Project, or to the furnishings and fixtures
and equipment, or inventory or other property of either Lessor or Lessee in, or
about or upon the Premises, Building or Project, which is caused by or results
from perils, events or happenings which are the subject of the casualty
insurance carried by the respective parties and in force at the time of any such
loss to the extent of proceeds received; provided, however, that such waiver
shall be effective only to the extent permitted by the insurance covering such
loss and to the extent such insurance is not prejudiced thereby. Each party
shall cause each insurance policy obtained by it to provide that the insurance
company waives all right of recovery by way of subrogation against either party
in connection with any damage covered by any policy.
Section 9.06. Indemnification. Except in the case of Lessor's own
negligence or intentional misconduct, Lessee agrees to defend, indemnify, and
hold harmless Lessor from and against any and all claims, actions, damages,
losses, liability and expense arising from or out of any occurrence in, upon or
at the Premises, or the occupancy or use by Lessee of the Premises or the
Project or any part hereof, or caused wholly or in part by acts or omissions of
Lessee, its agents, contractors, employees, servants, licensees, or
concessionaires or by anyone permitted to be on the Premises or the Project by
Lessee. In case Lessor shall be made a party to any litigation commenced by or
against Lessee other than an action brought by Lessee against Lessor under this
Lease or an action based on Lessor's negligence or intentional misconduct, then
Lessee shall defend (with counsel reasonably acceptable to Lessor), protect and
hold Lessor harmless from all claims, liabilities, costs and expenses, and shall
pay all costs, expenses and reasonable legal fees incurred by Lessor in
connection with such litigation. This provision shall survive the expiration or
earlier termination of this Lease.
Section 9.07. Lessor's Disclaimer.
(a) Lessor shall not be liable to Lessee and Lessee hereby waives any
claim for any loss, injury or other damage to any person or property (including
Lessee or Lessee's property), in or about the Premises or the Project from any
cause (including defects in the Project or in any equipment in the Premises and
any active or passive negligence of Lessor or its employees, agents or
contractors), provided, that this disclaimer and waiver shall not apply to any
gross or negligent or willful misconduct of Lessor. Lessee hereby waives all
such claims against Lessor for such loss, injury or damage and the cost and
expense of defending against claims relating to same.
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(b) In no event shall Lessor be liable to Lessee for any punitive or
consequential damages or damages for loss of business by Lessee.
Section 9.08. Plate Glass Replacement. If any plate glass or other glass
in a door or wall of the Premises (other than interior doors or walls) is
damaged or broken by any cause other than Lessor's negligence or intentional
misconduct, then Lessor shall replace the same and Lessee shall reimburse Lessor
an amount equal to Lessor's cost of replacement within ten (10) days after
Lessor's demand for same, provided that such amount shall not exceed the
deductible then in effect on Lessor's insurance policy, if any, covering the
damaged glass. Nothing herein shall be construed to require Lessor to carry
plate glass insurance.
Section 9.09. Worker's Compensation Insurance. Lessee shall, at its sole
expense, maintain and keep in force during the Lease Term a policy or policies
of Worker's Compensation insurance or any other employee benefit insurance
sufficient to comply with all applicable laws, statutes, ordinances and
governmental rules, regulations or requirements.
ARTICLE X
DAMAGE OR DESTRUCTION
Section 10.01. Right to Terminate on Substantial Damage or Uninsured
Peril. Lessor shall have the right to terminate this Lease on ten (10) days
advance written notice to Lessee if, during the Lease Term, either the Premises
are substantially damaged or portions of the Project other than the Premises are
damaged and the damage, or repair thereof, of such portions of the Project other
than the Premises threaten the structural elements of the Premises. For the
purpose of this Section, substantial damage shall mean either (i) damage that
cannot be substantially repaired and restored under applicable laws within one
(1) year of the date of the occurrence, or (ii) damage the estimated cost of
repairs of which exceeds twenty-five percent (25%) of the then estimated
replacement cost of the Premises or (iii) damage to the Project severe enough so
that Lessor's lender elects to apply the proceeds to the payment of debt secured
by the Project. Lessee shall have the right to terminate this Lease if during
the Lease Term the Premises are damaged and the damage cannot be substantially
repaired and restored within eighteen (18) months after the date of occurrence
only by giving a ten (10) days advance written notice to Lessor within ten (10)
business days after receipt of Lessor's notice. The determination in good faith
by Lessor of the estimated time and cost of repair of any damage and of the
estimated replacement costs shall be conclusive for the purposes of this
Section. Lessor shall also have the right to terminate this Lease if any portion
of the Premises or portion(s) of the Project other than the Premises, is damaged
by an uninsured peril unless Lessee, within ten (10) business days of receipt
from Lessor, delivered with Lessor's notice of election to terminate, of an
estimate of costs and expenses of repair and replacement necessitated by such
damage from a California licensed contractor, agrees in writing to reimburse
Lessor for the actual and reasonable costs and expenses Lessor incurs in
performing such repair and replacement. Lessor's election to terminate as
provided above shall be by written notice to Lessee delivered within sixty (60)
days of the occurrence of such damage.
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Section 10.02. Repairs by Lessor. If Lessor is not entitled or shall not
elect to terminate this Lease pursuant to Section 10.01, Lessor shall, as soon
as is reasonably practicable upon receipt of insurance proceeds paid in
connection with any casualty, proceed to repair or rebuild the Premises or the
Project, on substantially, the same plan and design as existed immediately
before such damage or destruction occurred to the extent reasonably permitted by
law and will proceed expeditiously to complete such restoration, subject to such
delays as may be reasonably attributable to governmental restrictions or failure
to obtain materials or labor, or other causes beyond the control of Lessor.
Lessee, and not Lessor, shall be liable for the repair and replacement of all
fixtures, leasehold improvements, furnishings, merchandise, equipment and
personal property with respect to the Premises, utilizing proceeds from the
insurance referenced, although Lessee's duties hereunder are not limited by the
amount of such proceeds in Section 9.02.
Section 10.03. Reduction of Rent During Repairs. If the Premises are
damaged by casualty and Lessor commences to repair or restore them, Lessee shall
continue the operation of its business in the Premises to the extent reasonably
practicable from the standpoint of prudent business management, and the Base
Rent and Additional Rent then prevailing for the period that repairs are being
made shall, in the amount of rental loss insurance proceeds received by Lessor,
be reduced. Lessee shall have no claim against Lessor for any business loss or
other damages suffered by Lessee by reason of any such damage, destruction,
repair, or restoration. Upon completion by Lessor of such repair or restoration,
Lessee shall promptly refixture the Premises to the condition prior to the
casualty, and shall reopen for business to the extent closed by the casualty.
Section 10.04. Right to Terminate During Last Year of the Term.
Notwithstanding anything to the contrary herein, if fifty percent (50%) or more
of the Premises are damaged by casualty (not involving the negligence or
intentional misconduct of Lessee, its employees, agents, contractors, invitees
or visitors) during the last year of the Lease Term, Lessor and Lessee shall
each have the right to terminate this Lease on thirty (30) days advance notice
to the other, only if such notice is given within ten (10) days after the date
on which such damage occurs.
ARTICLE XI
TAXES
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Section 11.01. Real Property Taxes. Lessee shall pay the real property
tax, as defined in Section 11.02, applicable to the Premises, Building or
Project during the Lease Term. All such payments shall be made within the later
of (i) ten (10) days after delivery by Lessor of notice of the amount due, or
(ii) thirty (30) days prior to delinquency. If any such taxes paid by Lessee
shall cover any period of time prior to or after the expiration of the Lease
Term, Lessee's share of such taxes shall be equitably pro-rated to cover only
the period of time within the tax fiscal year during which this Lease shall be
in effect, and Lessor shall reimburse Lessee to the extent required. If Lessee
shall fail to pay any such taxes, Lessor shall have the right to pay the same,
in which case Lessee shall repay such amount to Lessor with Lessee's next rent
installment together with interest at the prime rate plus two percent (2%), with
the prime rate being the prime commercial lending rate then in effect at the
Bank of America.
Section 11.02. Definition of "Real Property Tax". As used in this Lease,
the term "REAL PROPERTY TAX" shall include any form of real estate tax or
assessment, general, special, supplemental, escaped, ordinary or extraordinary,
and any license, fee, including any fee or charge related to energy usage,
pollution control or reduction, vehicle usage or parking, commercial rental tax,
excise tax, improvement bond or bonds (including, without limitation, Xxxxx-Xxxx
bonds), levy or tax (other than inheritance, personal income, corporate income,
franchise or estate taxes) imposed on the Premises, Building or Project by any
authority having the direct or indirect power to tax, including any improvement
district thereof, as against any legal or equitable interest of Lessor in the
Premises, Building or Project, as against Lessor's right to rent or other income
therefrom, and as against Lessor's business of leasing the Premises, Building or
Project and shall include any fee, license, tax or assessment whether or not
foreseeable which is in addition to or in lieu of all real property taxes
existing today.
Section 11.03. Joint Assessment. If the Premises are not separately
assessed, then Lessee's liability for said taxes shall be an equitable
proportion of the real property taxes for all of the land and improvements
included within the tax parcel assessed. Lessor shall determine the Lessee's
Proportionate Share of such taxes in good faith; for this purpose, an allocation
of such taxes based on the Lessee's Proportionate Share of Common Area expenses
shall be deemed to be in good faith. Lessee shall reimburse Lessor said
proportionate amount at least ten (10) days prior to the delinquency date of the
real property tax.
Section 11.04. Personal Property Taxes.
(a) Lessee shall pay prior to delinquency all taxes, assessments,
license fees, and other governmental charges assessed against and levied upon
trade fixtures, furnishings, equipment and all other personal property
(including intangibles) of Lessee contained in the Premises or elsewhere. When
possible, Lessee shall cause said trade fixtures, furnishings, equipment and all
other personal property to be assessed and billed separately from the real
property of Lessor.
(b) If any of Lessee's said personal property shall be assessed with
Lessor's real property, Lessee shall pay Lessor the taxes attributable to Lessee
within ten (10) days after receipt of a written statement setting forth the
taxes applicable to Lessee's property.
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(c) If Lessee shall fail to pay any such taxes, Lessor shall have the
right to pay the same, in which case Lessee shall repay such amount to Lessor
with Lessee's next rent installment together with interest at the prime rate
plus two percent (2%), with the prime rate being the prime commercial lending
rate then charged by the Bank of America.
ARTICLE XII
UTILITIES AND SERVICES
Section 12.01. Payment by Lessee. Lessee shall pay throughout the Lease
Term the cost of water, gas, heating, cooling, sewer, telephone, electricity,
garbage, air conditioning and ventilation, janitorial service, and all other
materials and utilities supplied to the Premises. If any such services are not
separately metered to Lessee, Lessee shall pay its Proportionate Share of all
charges which are jointly metered, the determination to be made by Lessor in
good faith. Payment shall be made by Lessee in accordance with the payments for
Common Area expenses set forth in Article VIII.
Section 12.02. Lessor Not Liable For Service Interruptions. Lessor shall
not be liable in damages or otherwise for any failure or interruption of any
utility or service being furnished to the Premises, and no such failure or
interruption shall entitle Lessee to terminate this Lease or shall otherwise
affect Lessee's obligations under this Lease. Lessor shall be entitled to
cooperate voluntarily, and Lessee agrees to cooperate, with the efforts of
governmental authorities or utility suppliers in reducing energy or other
resource consumption.
Section 12.03. Lessee's Excessive Use. Lessor shall have the right to
contract for all electricity supplied to the Building and to utilize the
existing electrical meter at the Building for that purpose. Lessee shall
cooperate with Lessor to accomplish the foregoing. If Lessee uses heat
generating machines or equipment in the Premises which affect the temperature
otherwise maintained by the HVAC system, Lessor reserves the right to install
supplementary air-conditioning units in the Premises and the cost thereof,
including the cost of installation, operation and maintenance and the cost of
cooling energy to the Premises in excess of that required for normal office use,
shall be paid by Lessee to Lessor upon demand. Lessee shall not, without the
written consent of Lessor, use any apparatus or device in the Premises,
including, without limitation, electronic data processing machines, or machines
using in excess of one hundred twenty (120) volts, which consumes more
electricity than is usually furnished or supplied for the use of the Premises as
office space, as determined by Lessor. Lessee shall not connect any apparatus
with electric current except through existing electrical outlets in the
Premises. Lessee shall not consume water, gas or electric current in excess of
that usually furnished or supplied for the use of the Premises as office space
(as determined by Lessor), without first procuring the written consent of
Lessor, which Lessor may refuse, and in the event of consent, Lessor shall have
the right to install a water, gas or electrical current meter in the Premises to
measure the amount of water, gas or electric current consumed. The cost of any
such meter and of its installation, maintenance and repair shall be paid for by
the Lessee and Lessee agrees to pay to Lessor promptly upon demand for all such
water, gas and electric current consumed as shown by said meters, at the rates
charged for such services by the local public utility plus any additional
expense incurred in keeping account of such consumption. If a separate meter is
not installed, the excess cost for
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such water, gas and electric current shall be established by an estimate made by
a utility company or electrical engineer hired by Lessor at Lessee's expense.
Lessor has determined that Lessee's current electrical consumption is excessive
and hereby consents to the excess electrical usage presently consumed by Lessee
at the time this Lease is executed, but Lessor reserves its rights to separately
meter or otherwise establish the cost of excess utilities consumption which is
not otherwise paid by Lessee directly to the utility provider(s) and to xxxx
Lessee for the cost of same and Lessee shall pay such cost within ten (10) days
after Lessor delivers the xxxx for same, provided, that, Lessor will use
commercially reasonable efforts to establish a metering or monitoring system for
Lessee's electrical usage which is the least expensive alternative method which
accomplishes Lessor's needs in a practical fashion.
ARTICLE XIII
ASSIGNMENT AND SUBLETTING
Section 13.01. Lessor's Consent Required. Except as provided in Section
13.02, Lessee shall not voluntarily or by operation of law assign, transfer,
mortgage, sublet, license or otherwise transfer, encumber, or pledge
("TRANSFER") all or any part of Lessee's interest in this Lease or in the
Premises, without Lessor's prior written consent which Lessor shall not
unreasonably withhold or delay. Lessee must request Lessor's consent in writing.
Any attempted Transfer without such consent shall be void, and shall constitute
a material breach of this Lease.
Section 13.02. Lessee Affiliate. Upon written notice to Lessor and
delivery of a copy fully executed transfer documents, Lessee may assign or
sublet the Premises, or any portion thereof, without the consent of Lessor, to
any corporation which controls, is controlled by, or is under common control
with Lessee, or to any corporation resulting from the merger or consolidation
with Lessee, or to any person or entity which acquires all, or substantially all
of the assets of Lessee as a going concern of the business that is being
conducted on the Premises (each, a "LESSEE AFFILIATE"), provided that said
assignee assumes, in full, the obligations of Lessee under this Lease and any
such assignment shall not, in any way, affect or limit the liability of Lessee
under the terms of this Lease. Notwithstanding the foregoing, Lessee may not,
and Lessee agrees that it shall not, assign or sublet the Premises, or any
portion thereof, to a Lessee Affiliate if such Lessee Affiliate is insolvent, is
the subject of a receivership, or is the subject of any proceeding in any U.S.
Bankruptcy Court.
Section 13.03. No Release of Lessee. Regardless of Lessor's consent, no
Transfer shall release Lessee from Lessee's obligations or alter the primary
liability of Lessee to pay the rent and to perform all other obligations to be
performed by Lessee hereunder. The acceptance of rent by Lessor from any other
person shall not be deemed consent to any subsequent Transfer. In the event of
default by any Transferee, in the performance of any of the terms hereof, Lessor
may proceed directly against Lessee without the necessity of exhausting remedies
against said Transferee.
Section 13.04. Reimbursement of Fees and Costs. In the event Lessee
shall request the consent of Lessor to any Transfer, or if Lessee shall request
the consent of Lessor for any other act Lessee
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proposes to do, then, regardless of whether or not Lessor's consent is given,
Lessee shall pay upon demand, Lessor's costs and reasonable architect, engineer,
attorneys' or other professional or consultant fees incurred in connection
therewith.
Section 13.05. Excess Rent. None.
Section 13.06. Information to be Provided. Lessee's written request to
Lessor for consent to a Transfer shall be accompanied by (a) the name and legal
composition of the proposed Transferee; (b) the nature of the proposed
Transferee's business to be carried on in the Premises; (c) a signed copy of the
Transfer Agreement including all of the terms and provisions of the proposed
Transfer; (d) current and last three (3) years balance sheets and profit and
loss statements certified to be true and correct by an owner or officer of the
proposed Transferee unless Transferee is a publicly traded company; and (e) a
tenancy history of the Transferee including identification of Premises, rent and
current address and contact information of past landlords. Lessee shall also
provide Lessor, upon demand, any financial and other reasonable information as
Lessor may request concerning the proposed Transferee. Lessor's consent shall
not be deemed unreasonably withheld if consent is denied because Lessor
reasonably believes that the prospective Transferee may be less able than Lessee
to perform the obligations of Lessee hereunder.
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Section 13.07.Recapture.
(a) Lessor's Recapture Rights. Notwithstanding any other provision of
this Article 13.07, in the event that Lessee proposes to sublease or assign or
otherwise transfer any interest in this Lease or the Premises or any part
thereof affecting (collectively with all other such subleases, assignments, or
transfers then in effect) more than fifty percent (50%) of the square footage of
the Rentable Area of the Premises ("RECAPTURE SPACE") for more than either (i)
three years (3), or (ii) fifty percent (50%) of the then remaining Lease Term,
then Lessor shall have the option to recapture the Recapture Space by written
notice to Lessee ("RECAPTURE NOTICE") given within ten (10) business days after
Lessor receives any notice of such proposed assignment or sublease or other
transfer ("TRANSFER NOTICE"). A timely Recapture Notice terminates this Lease
for the Recapture Space, effective as of the date specified in the Transfer
Notice. If Lessor declines or fails timely to deliver a Recapture Notice, Lessor
shall have no further right under this Section 11.06 to the Recapture Space
unless it becomes available again after transfer by Lessee. Assignments or
subleases to Lessee's Affiliates shall not be subject to this Section 13.07 or
used in the calculation of Recapture Space.
(b) Consequences of Recapture. To determine the new Base Rent under this
Lease if Lessor recaptures the Recapture Space, the then current Base Rent
(immediately before Lessor's recapture) under the Lease shall be multiplied by a
fraction, numerator of which is the square feet of the Rentable Area retained by
Lessee after Lessor's recapture and the denominator of which is the total square
feet of the Rentable Area before Lessor's recapture. The Additional Rent, to the
extent that it is calculated on the basis of the square feet within the
Building, shall be reduced to reflect Lessee's proportionate share based on the
square feet of the Building retained by Lessee after Lessor's recapture. This
Lease as so amended shall continue thereafter in full force and effect. Either
party may require written confirmation of the amendments to this Lease
necessitated by Lessor's recapture of the Recapture Space. If Lessor recaptures
the Recapture Space, Lessor shall, at Lessor's sole expense, construct, paint,
and furnish any partitions required to segregate the Recapture Space from the
remaining Premises retained by Lessee as well as arrange separate metering of
utilities.
ARTICLE XIV
DEFAULTS; REMEDIES
Section 14.01. Defaults. The occurrence of any one or more of the
following events shall constitute a material breach and default of this Lease by
Lessee:
(a) The abandonment of the Premises by Lessee (abandonment shall be
defined to include, but is not limited to, any absence by the Lessee from the
Premises for ten (10) or more consecutive days, provided that absence while
Lessee is (a) actively seeking [including listing the Premises with a California
licensed real estate broker active in the Sunnyvale commercial market] a
sublessee or assignee or (b) in
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the process of altering the design or improvements within the Premises as
permitted hereunder, shall not be deemed absence for purposes of such
definition);
(b) The failure by Lessee to make any payment of rent or any other
payment required to be made by Lessee hereunder, as and when due, where such
failure shall continue for a period of five (5) days after written demand for
payment has been made;
(c) The failure by Lessee to cure, within five (5) days after notice of
the need for cure, any failure to observe or perform any other provision of this
Lease to be observed or performed by Lessee when the failure would result in or
constitute, (i) nuisance, (ii) a violation of Article XVII or Section 21.12,
(iii) a failure to keep required insurance in effect, (iv) a threat of damage to
the structural portions of the Building or the operation of Building systems or
to the safety of the Building or the Project or its occupants or invitees, or
(v) a threat to Lessor of civil or criminal liability fine or penalty.
(d) The failure by Lessee to observe or perform any of the provisions of
this Lease to be observed or performed by Lessee, other than described in
paragraphs (a), (b) or (c) above, where such failure shall continue for a period
of ten (10) days after written notice thereof (which notice may be served by
facsimile) from Lessor to Lessee; provided, however, that if the nature of
Lessee's default is such that more than ten (10) days are reasonably required
for its cure, then Lessee shall not be deemed to be in default if Lessee
commences such cure within said 10-day period and thereafter diligently
prosecutes such cure to completion within a reasonable time thereafter;
(e) (i) The making by Lessee of any general arrangement or assignment
for the benefit of creditors; (ii) Lessee becomes a "debtor" as defined in 11
U.S.C. Section 101 or any successor statute thereto; (iii) the taking or
suffering of any action by Lessee under any insolvency or bankruptcy act; (iv)
the appointment of a trustee or receiver to take possession of substantially all
of Lessee's assets located at the Premises or of Lessee's interest in this
Lease, or (v) the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, provided, however, in the event that any provisions of
this Section 14.01(e) is contrary to any applicable law, such provision shall be
of no force or effect;
(f) The discovery by Lessor that any financial statement given to Lessor
by Lessee, any assignee of Lessee, any successor in interest of Lessee or any
guarantor of Lessee's obligation hereunder, and any of them, was materially
false.
(g) The commission of waste at the Premises, Building or Project.
(h) An attempted or consummated Transfer in violation of Section 13.01.
Section 14.02. Remedies. In the event of any such material default or
breach by Lessee, Lessor may at any time thereafter, with or without notice or
demand and without limiting Lessor in the exercise of any right or remedy which
Lessor may have, cumulatively or in the alternative, by reason of such default
or breach:
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(a) Terminate Lessee's right to possession of the Premises by any lawful
means, in which case this Lease shall terminate and Lessee shall immediately
surrender possession of the Premises to Lessor. In such event Lessor shall be
entitled to recover from Lessee all damages incurred by Lessor by reason of
Lessee's default including, but not limited to, (i) the cost of recovering
possession of the Premises and reasonable attorneys' fees related thereto; (ii)
the worth, at the time of the award, of the unpaid rent that had been earned at
the time of termination of the Lease; (iii) the worth, at the time of the award,
of the amount by which the unpaid rent that would have been earned after the
date of termination of this Lease until the time of award exceeds the amount of
the loss of rent that Lessee proves could have been reasonably avoided; (iv) the
worth, at the time of the award, of the amount by which the unpaid rent for the
balance of the term after the time of award exceeds the amount of the loss of
rent that Lessee proves could have been reasonably avoided; and (v) any other
amount and court costs necessary to compensate Lessor for all detriment
proximately caused by Lessee's default, or which in the ordinary course of
things would be likely to result therefrom, including, without limitation, costs
of retaking possession of the Premises, costs of repairing, preserving,
maintaining, restoring, cleaning, or altering the Premises, and the unamortized
portion of brokers' fees or commissions and attorneys' fees incurred by Lessor
in connection with the negotiation and execution of the Lease with Lessee.
(b) Pursuant to California Civil Code Section 1951.4, maintain Lessee's
right to possession in which case this Lease shall continue in effect whether or
not Lessee shall have abandoned the Premises. In such event, Lessor shall be
entitled to enforce all of Lessor's rights and remedies under this Lease,
including the right to recover the rent as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor under
the laws or judicial decisions of the state of California. Unpaid installments
of rent and other unpaid monetary obligations of Lessee under the terms of this
Lease shall bear interest from the date due at the prime rate plus two percent
(2%), with the prime rate being the prime commercial lending rate then charged
by Bank of America.
(d) The "worth at the time of award" of the amounts referred to in parts
(ii) and (iii) of the second sentence of paragraph (a) above shall be computed
by allowing interest at the then Bank of America prime rate plus two percent
(2%). The "worth at the time of award" of the amount referred to in part (iv) of
the second sentence of paragraph (a) above shall be computed by discounting such
amount at the discount rate of the Federal Reserve Bank of San Francisco at the
time of award plus one percent (1%).
(e) All obligations to be performed by Lessee under this Lease shall be
performed by Lessee at Lessee's expense and without any reduction of Rent. If
Lessee's failure to perform an obligation continues for five (5) days after
notice to Lessee, Lessor may perform the obligation on Lessee's behalf, without
waiving Lessor's rights for Lessee's failure to perform any obligations under
this Lease and without releasing Lessee from such obligations. Within fifteen
(15) days after receiving a statement from Lessor, Lessee shall pay to Lessor
the amount of expense reasonably incurred by Lessor in performing Lessee's
obligation.
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Section 14.03. Default by Lessor, Time to Assert Claim or Defense.
Lessor shall not be in default unless Lessor fails to perform obligations
required of Lessor within a reasonable time, but in no event later than thirty
(30) days after written notice by Lessee to Lessor, specifying wherein Lessor
has failed to perform such obligation; provided, however, that if the nature of
Lessor's obligation is such that more than thirty (30) days are required for
performance then Lessor shall not be in default if Lessor commences performance
within such 30-day period and thereafter diligently prosecutes the same to
completion.
Section 14.04. Late Charges. Lessee hereby acknowledges that late
payment by Lessee to Lessor of rent and other sums due hereunder will cause
Lessor to incur costs not contemplated by this Lease, the exact amount of which
will be extremely difficult to ascertain. Such costs include, but are not
limited to, processing and accounting charges, late charges which may be imposed
on Lessor by the terms of any mortgage or trust deed covering the Premises or by
any entity supplying goods or services to the Premises, Building or Project, and
fines or other charges imposed by any taxing or other governmental authority.
Accordingly, if any installment of Base Rent or Additional Rent or any other sum
due from Lessee shall not be received by Lessor or Lessor's designated agent
within five (5) days after such amount is due and owing, Lessee shall pay to
Lessor a late charge equal to five percent (5%) of such overdue amount. The
parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Lessor will incur by reason of late payment by Lessee.
Acceptance of any such late charge by Lessor shall in no event constitute a
waiver of Lessee's default with respect to such overdue amount, nor prevent
Lessor from exercising any of the other rights and remedies granted hereunder.
In the event that a late charge is payable hereunder, whether or not collected,
for three (3) installments of Base Rent or Additional Rent in any twelve (12)
month period, then Base Rent (and any and all other sums payable hereunder,
including Lessee's Proportionate Share of Common Area expenses and estimated
payments, if any) shall automatically become due and payable quarterly in
advance, rather than monthly, notwithstanding section 4.01 or any other
provision of this Lease to the contrary.
Section 14.05. Waiver of Right to Jury Trial. Lessor and Lessee waive
their respective rights to trial by jury of any statute, common law, contract or
tort claim, defense, counterclaim, cross-complaint, or cause of action in any
action, proceeding, or hearing brought by either party against the other on any
matter arising out of or in any way connected with or related to this Lease, or
its negotiation or execution, the Premises, the Project, the relationship of
Lessor and Lessee, or Lessee's use or occupancy of the Premises, including any
claim of injury or damage or the enforcement of any remedy under any current or
future law, statute, regulation, code, or ordinance.
Section 14.06. Waiver of Rights of Redemption and Timelines of Rent
Default Notice. Lessee hereby expressly waives any and all rights (i) of relief
from forfeiture, redemption or reinstatement granted by or under any present or
future law (including, without limitation, California Code of Civil Procedure
Sections 1174 and 1179) in the event of Lessee's being evicted or dispossessed
for any cause, or in the event of Lessor's obtaining the right to possession of
the Premises, by reason of the violation by Lessee of any of the terms,
covenants, conditions, provisions or agreements of this Lease, or otherwise and
(ii) to require that Lessor serve a notice of default for unpaid rent within one
year after such rent becomes due, as provided in California Code of Civil
Procedure Section 1161, subsection 2.
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ARTICLE XV
CONDEMNATION OF PREMISES
Section 15.01. Total Condemnation. If the entire Premises, whether by
exercise of governmental power or the sale or transfer by Lessor to any
condemnor under threat of condemnation or while proceedings for condemnation are
pending, at any time during the Lease Term, shall be taken by condemnation such
that there does not remain a portion suitable for occupation, this Lease shall
then terminate as of the date transfer of possession is required. Upon such
condemnation, all rent shall be paid up to the date transfer of possession is
required, and Lessee shall have no claim against Lessor for the value of the
unexpired Term of this Lease.
Section 15.02. Partial Condemnation. If any portion of the Premises or
of the Project is taken by condemnation during the Lease Term, whether by
exercise of governmental power or the sale or transfer by Lessor to a condemnor
under threat of condemnation or while proceedings for condemnation are pending,
this Lease shall remain in full force and effect, except that Lessor and Lessee
each shall have the right to terminate this Lease effective on the date transfer
of possession is required if more than thirty-three percent (33%) of the total
square footage of the Premises is taken by condemnation. Lessee and Lessor may
elect to exercise their respective right to terminate this Lease pursuant to
this Section by serving written notice to the other within sixty (60) days of
their receipt of notice of condemnation. All rent shall be paid up to the date
of termination, and Lessee shall have no claim for value of any unexpired term
of this Lease. If this Lease shall not be terminated, the rent after such
partial taking shall be that percentage of the then prevailing rent specified
herein, equal to the percentage which the square footage of the untaken part of
the Premises, immediately after the taking, represents the square footage of the
entire Premises immediately before the taking. Any sums owing hereunder which
are calculated on the basis of Lessee's Proportionate Share shall also be
adjusted to reflect the decreased square footage of the Premises due to the
condemnation. If Lessee's continued use of the Premises requires alterations and
repair by reason of a partial taking, all such alterations and repair shall be
made by Lessee at Lessee's expense.
Section 15.03. Award to Lessee. In the event of any condemnation,
whether total or partial, Lessee shall have the right to claim and recover from
the condemning authority such compensation as may be separately awarded or
recoverable by Lessee for loss of its business fixtures, or equipment belonging
to Lessee immediately prior to the condemnation and out-of-pocket costs of
moving from the Premises to a new location. The balance of any condemnation
award shall belong to Lessor and Lessee shall have no further right to recover
from Lessor or the condemning authority for any additional claims arising out of
such taking.
ARTICLE XVI
ENTRY
Section 16.01.
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(a) Permitted Entry by Lessor. Lessee shall permit Lessor and its agent
to enter the Premises at all reasonable times and upon twenty-four (24) hours
prior notice (except in an emergency) for any of the following purposes: to
inspect the Premises; to maintain the Building to make such repairs,
alterations, and additions to the Premises or Building as Lessor is obligated or
may elect to make; to show the Premises and post "For Lease" signs for the
purposes of reletting during the last ninety (90) days of the Lease Term; to
show the Premises as part of a prospective sale by Lessor or to post notices of
non-responsibility. Lessor shall have such right of entry without any rebate of
rent to Lessee for any loss of occupancy or quiet enjoyment of the Premises
thereby occasioned.
(b) Access to Second Floor Premises by Lessee: The portion of the
Premises located on the Second Floor of the Building consists of two
communication equipment closets. Lessee's access to this portion of the Premises
shall be limited by compliance with the reasonable security requirements of any
tenant(s) of the Second Floor through whose premises Lessee must travel to
access the closets, which requirements do not materially impede such access.
Requirements substantially the same as those set forth in paragraph 6.2 of that
certain Amendment No. 1 and Partial Termination Agreement between ArgoSystems
and General Magic, Inc. dated April 12, 1994, shall be deemed reasonable. Either
party may relocate the equipment to within the Third Floor Premises at its sole
cost and expense on ten (10) days notice to the other.
ARTICLE XVII
ESTOPPEL CERTIFICATE
Section 17.01. Delivery by Lessee.
(a) Lessee shall within (10) days after demand from Lessor execute,
acknowledge and deliver to Lessor a statement in writing, in a form provided by
or satisfactory to Lessor, (i) certifying that this Lease is unmodified and in
full force and effect (or, if modified, stating the nature of such modification
and certifying that this Lease, as so modified, is in full force and effect) and
the date to which the rent and other charges are paid in advance, if any, (ii)
acknowledging that there are not, to Lessee's knowledge, any uncured defaults on
the part of Lessor hereunder, or specifying such defaults if any are claimed,
and (iii) setting forth, such other information as is reasonable or customary
for prospective purchasers or encumbrancers to request. Any such statement may
be conclusively relied upon by any prospective purchaser or encumbrancer of the
Premises.
(b) Lessee's failure to deliver such statement within such time shall be
conclusive upon Lessee (i) that this Lease is in full force and effect, without
modification except as may be represented by Lessor, (ii) that there are no
uncured defaults in Lessor's performance, (iii) that not more than one month's
rent has been paid in advance, and (iv) that such other information stated is
true and correct. In addition, such failure shall constitute a material default
following the cure period set forth in Section 14.01(c), above, by Lessee under
this Lease, and upon such failure Lessor shall have all of the remedies set
forth in this Lease that are available to Lessor upon Lessee's default.
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ARTICLE XVIII
LESSOR'S LIABILITY
Section 18.01. Limitation on Liability. The term "Lessor" as used herein
shall mean only the owner or owners, at the time in question, of the fee title
to the Premises. In the event of any transfer of such title or interest, Lessor
herein named (and in case of any subsequent transfers then the grantor) shall be
relieved from and after the date of such transfer of all liability as respects
Lessor's obligations thereafter to be performed. The obligations contained in
this Lease to be performed by Lessor shall, subject as aforesaid, be binding on
Lessor's successors and assigns, only during their respective periods of
ownership. The liability of Lessor for its obligations under this Lease is
limited solely to Lessor's interest in the Project or the proceeds therefrom as
the same may be encumbered from time to time, and no personal liability shall at
any time be asserted or enforceable against any other assets of Lessor or
against Lessor's partners, shareholders, members, directors, officers, managers,
employees or agents.
ARTICLE XIX
USE AND CONTROL OF COMMON AREA
Section 19.01. Right of Use. Lessee and Lessee's agents and visitors
shall be entitled to use the Common Area during the Lease Term, in common with
Lessor and with other persons authorized by Lessor from time to time to use such
area, subject to such reasonable rules and regulations relating to such use as
Lessor may from time to time establish.
Section 19.02. Lessor to Operate. Lessor shall operate, manage, equip,
light, repair, clean and maintain and replace the Common Area in such manner as
Lessor may in its sole discretion determine to be appropriate to keep the Common
Area in first class condition, provided that Lessor will use good faith efforts
to avoid material interference with Lessee's permitted use of the Premises.
Lessee shall reimburse Lessor for Lessee's proportionate share of the expenses
and costs therefor, pursuant to Article VIII. Lessor may temporarily close any
Common Area, including parking areas, if any, for repairs or alterations, to
prevent a dedication thereof or the accrual of prescriptive rights therein, or
for any other reason deemed sufficient by Lessor.
Section 19.03. Control in Lessor. Lessor shall at all times have the
sole exclusive control of the Common Areas, including the automobile parking
areas and driveways, entrances and exits, and the sidewalks and pedestrian
passageways, and may at any time from time to time during the Lease Term
restrain any use or occupancy thereof, except as authorized by the Rules and
Regulations for the use of such areas established by Lessor from time to time.
The rights of Lessee in and to the Common Areas shall at all times be subject to
the rights of Lessor, other tenants of Lessor, and other authorized users
designated by Lessor to use the same in common with Lessee, and Lessee shall
keep the Common Areas
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free and clear of any obstructions created or permitted by Lessee or resulting
from Lessee's operations. If, in the opinion of Lessor, one or more unauthorized
persons are using any of the Common Areas by reason of the presence of Lessee in
the Project, Lessee, upon demand of Lessor, shall restrain such unauthorized use
by appropriate proceedings. Nothing herein shall affect the right of Lessor at
any time to remove any such unauthorized person(s) from the Common Areas nor to
prohibit the use of any Common Areas by unauthorized person(s).
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ARTICLE XX
EXPIRATION OR TERMINATION
Section 20.01. Surrender of Possession. Upon expiration or any
termination of the Lease, Lessee agrees to deliver up and surrender to Lessor
possession of the Premises and all improvements thereon, in as good order and
condition as when possession was taken by Lessee, excepting only ordinary wear
and tear (any wear and tear which could have been avoided by first class
maintenance and repair as not "ordinary"). Upon expiration or termination of
this Lease, Lessor may reenter the Premises and remove all persons and property
therefrom. If Lessee shall fail to remove any effects which it is entitled to
remove from the Premises upon the expiration or termination of this Lease, for
any cause whatsoever, Lessor, at its option, may remove the same and store or
dispose of them, and Lessee agrees to pay to Lessor on demand any and all
expenses incurred in such removal, storage and disposition and in making the
Premises free from all dirt, litter, and debris, including all storage and
insurance charges. If the Premises are not surrendered at the end of the Lease
Term, Lessee shall indemnify and hold Lessor harmless against loss or liability
resulting from delay by Lessee in so surrendering the Premises, including,
without limitation, actual damages for lost rents.
Section 20.02. Holding Over. If Lessee, with Lessor's prior consent,
remains in possession of the Premises after expiration of the Lease Term and if
Lessor and Lessee have not executed an express written agreement as to such
holding over, then such occupancy shall be a tenancy from month to month, at a
monthly rental equivalent to one hundred fifty percent (150%) of the monthly
rental in effect immediately prior to such expiration, such payments to be made
as herein provided. In the event of such holding over all of the terms of this
Lease including the payment of all charges owing hereunder as Additional Rent
shall remain in force and effect on said month to month basis.
ARTICLE XXI
GENERAL PROVISIONS
Section 21.01. Severability. The invalidity of any provision of this
Lease as determined by a court of competent jurisdiction, shall in no way affect
the validity of any other provision hereof.
Section 21.02. Interest on Past-due Obligations. In addition to any late
charges, which are intended to defray Lessor's additional costs resulting from
late payments, any amount due to Lessor not paid when due shall bear interest at
the prime rate plus two percent (2%), with the prime being the prime commercial
lending rate then in effect at Bank of America ("AGREED RATE"). Payment of such
interest shall not excuse or cure any default by Lessee under this Lease.
Section 21.03. Time of Essence. Time is of the essence in the
performance of all obligations under this Lease.
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Section 21.04. Monetary Obligations and Rent. All monetary obligations
of Lessee to Lessor under the terms of this Lease shall be deemed to be
obligations to pay rent.
Section 21.05. Incorporation of Prior Agreements; Amendments. This
Lease, including all Exhibits and any Addenda attached hereto, and the documents
referred to herein, if any, constitute the entire agreement of the parties with
respect to any matter mentioned herein. No prior agreement or understanding
pertaining to any such matter shall be effective, and any such prior agreement
or understanding, whether oral or written, is superseded by this Lease
agreement. This Lease may be modified in writing only, signed by the parties in
interest at the time of the modification. Except as otherwise stated in this
Lease, Lessee hereby acknowledges that neither the Lessor nor any employee or
agent of the Lessor has made any oral or written warranties or representations
to Lessee relative to the condition or use by Lessee of said Premises and Lessee
acknowledges that Lessee assumes all responsibility regarding the legal use and
adaptability of the Premises. By executing this Lease, Lessee acknowledges that
it has reviewed and satisfied itself as to its compliance, or intended
compliance, with the applicable zoning and permit laws, hazardous waste
requirements, and all other statutes, laws, or ordinances relevant to the uses
stated in Section 21.05.
Section 21.06. Notices. Any notice required or permitted to be given
hereunder shall be in writing and shall be given by personal delivery or by a
nationally recognized overnight carrier such as, Federal Express or by certified
mail, return receipt requested, and if given shall be deemed sufficiently given
if addressed to Lessee or to Lessor at the address set forth in the Basic Lease
Provisions. Either party may by notice to the other specify a different address
for notice purposes, provided, that, for purposes of notices of default, the
Premises shall constitute the notice address for Lessee, and the Premises shall
constitute the Lessee's "residence" and "usual place of business" for purposes
of California Code of Civil Procedure Section 1162. A copy of all notices
required or permitted to be given to Lessor hereunder shall be concurrently
transmitted to such party or parties at such addresses as Lessor may from time
to time hereafter designate by notice to Lessee. Notice shall be considered
effective on the earlier of (i) the date confirmed by the carrier or U.S. Post
Office on which a refusal of delivery or delivery occurred, or (ii) actual
receipt by the intended recipient. "Personal delivery" means delivery by hand at
the address set forth in the Basic Lease Provisions to a person apparently
designated to receive delivery, including a receptionist at a place of business
or any person apparently 18 years of age or older at a residence.
Section 21.07. Waivers. No waiver by Lessor of any provision hereof
shall be deemed a waiver of any other provision hereof or of any subsequent
breach by Lessee of the same or any other provisions. Lessor's consent to, or
approval of, any act shall not be deemed to render unnecessary the obtaining of
Lessor's consent to or approval of any subsequent act by Lessee. The acceptance
of rent hereunder by Lessor shall not be a waiver of any preceding breach by
Lessee of any provision hereof, regardless of Lessor's knowledge of such
preceding breach at the time of acceptance of such rent.
Section 21.08. Recording. Lessee shall not record this Lease or any
memorandum thereof.
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Section 21.09. Cumulative Remedies. No Lessor remedy or election
hereunder shall be deemed exclusive but shall, wherever possible, be cumulative
with all other remedies at law or in equity.
Section 21.10. Covenants and Conditions. Each provision of this Lease
performable by Lessee shall be deemed both a covenant and a condition.
Section 21.11. Binding Effect; Governing Law. Subject to any provisions
hereof restricting assignment or subletting by Lessee and subject to the
provisions of Article XVIII, this Lease shall bind the parties, their personal
representatives, successors and assigns. This Lease shall be governed by and
construed in accordance with the laws of the State of California.
Section 21.12. Subordination of Leasehold. Lessee agrees that this Lease
is and shall be, at all times, subject and subordinate to the lien of any
mortgage or other encumbrances which Lessor may create against the Premises
including all renewals, replacements and extensions thereof; provided, however,
that regardless of any default under any such mortgage or encumbrance or any
sale of the Premises under such mortgage, so long as Lessee performs all
covenants and conditions of this Lease and continues to make all payments
hereunder, this Lease and Lessee's possession and rights hereunder shall not be
disturbed by the mortgagee or anyone claiming under or through such mortgagee
and provided further, that as to any encumbrance Lessor creates after the date
of the Lease, the mortgagee or beneficiary agrees to enter into a Subordination,
Attornment and Non-Disturbance Agreement with Lessee. Lessee agrees to execute
and deliver to Lessor, or to Lessor's designated agent, within ten (10) days
after demand, a Subordination, Attornment and Non-Disturbance Agreement in form
acceptable to any present or future lender requesting the same and which is
substantially in the form attached hereto as Exhibit D or contains such other or
different terms which are then customary in the commercial lending industry for
loans of the type being contemplated so long as the substance of the aforesaid
non-disturbance provision is also present.
Section 21.13. Attorneys' Fees.
(a) Lessor Made Party to Litigation. If Lessor becomes a party to any
litigation brought by someone other than Lessee and concerning this Lease, the
Premises, or the Lessee's use or occupancy thereof, based upon any real or
alleged act or omission of Lessee or its authorized agents or representative or
as a result of any occurrence at the Premises (other than an action brought
against Lessor based on Lessor's negligence or intentional misconduct, Lessee
shall reimburse Lessor within ten (10) days after demand for reasonable
attorneys' fees and court costs incurred by Lessor in the litigation.
(b) Certain Litigation Between the Parties. If any action or proceeding
in law or in equity or any arbitration proceeding is instituted by either party
for damages or possession of the Premises or both, for an alleged breach of any
obligation or for any matter arising under this Lease, to recover rent, to
terminate the tenancy of Lessee at the Premises, or to enforce, protect, or
establish any right or remedy, the prevailing party in such action or proceeding
shall be entitled to recover as part of such action or proceeding its attorneys'
fees, expert witness fees, and court costs as incurred, or as may be fixed by
the court or jury.
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Section 21.14. Auctions. Lessee shall not conduct, nor permit to be
conducted, either voluntarily or involuntarily, any auction upon the Premises
without first having obtained Lessor's prior written consent. Notwithstanding
anything to the contrary in this Lease, Lessor shall not be obligated to
exercise any standard of reasonableness in determining whether to grant such
consent.
Section 21.15. Signs. Lessee shall not place any sign upon the Premises
or the Project without Lessor's prior written consent, which consent may be
withheld in Lessor's sole discretion. If Lessor consents to the erection of any
signs, all signs shall comply with any sign criteria established by Lessor and
the City of Sunnyvale. Lessee may use as its advertised business address the
name of the Project as it appears in the Basic Lease Information. Lessee shall
not use the name of the Project for any purpose other than as the address of the
business to be conducted by Lessee at the Premises, and Lessee shall not acquire
any property or other right in or to any name which contains such name or any
part thereof. Lessee shall not use such name after termination of this Lease,
nor at any location other than the Premises. Lessor reserves the right to change
the name of the Building or Project at any time. Consent to Lessee's existing
signs is hereby granted to the extent such signs (i) comply with applicable law
on the Commencement Date and (ii) do not utilize more than Lessee's
Proportionate Share of signage permitted on the Building by the City of
Sunnyvale.
Section 21.16. Voluntary Surrender or Merger. The voluntary or other
surrender of this Lease by Lessee, or a mutual cancellation thereof, or a
termination by Lessor, shall not work a merger, and shall, at the option of
Lessor, terminate all or any existing subtenancies or may, at the option of
Lessor, operate as an assignment to Lessor of any or all of such subtenancies.
Section 21.17. Guarantor [Intentionally Omitted]
Section 21.18. Quiet Possession. Upon timely paying the Base Rent and
additional rent for the Premises and timely observing and performing all of the
covenants, conditions and provisions on Lessee's part to be observed and
performed hereunder, Lessee shall have quiet possession of the Premises for the
entire Lease Term hereof subject to all of the provisions of this Lease and all
recorded documents which are now or hereafter senior to this Lease.
Section 21.19. Joint and Several Liability. If Lessee consists of more
than one (1) person or entity, the obligations of each such person or entity
under this Lease shall be joint and several.
Section 21.20. Easements. Lessor reserves to itself the right, from time
to time, to grant such easements, rights and dedications that Lessor deems
necessary or desirable, and to cause the recordation of Parcel Maps and
restrictions, so long as such easements, rights, dedications, Maps and
restrictions do not unreasonably interfere with the use of the Premises by
Lessee. Lessee shall sign any document which Lessor requests to be signed and
which is reasonably necessary or appropriate to accomplish such guaranty or
recordation and to subordinate this Lease to same upon five (5) days written
notice of Lessor and failure to do so shall constitute a material breach of this
Lease.
Section 21.21. [Intentionally Omitted]
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Section 21.22. Delays for Cause. Except for Lessee's obligation to pay
Base Rent , Additional Rent and any other amounts of money hereunder, in any
case where either party hereto is required to do any act, delays caused by or
resulting from Acts of God, war, civil commotion, fire, flood or other casualty,
labor difficulties, shortages of labor, materials or equipment, government
regulations, unusually severe weather, or other causes beyond such party's
reasonable control shall not be counted in determining the time during which
work shall be completed, whether such time be designated by a fixed date, a
fixed time or "a reasonable time", and such time shall be deemed to be extended
by the period of such delay.
Section 21.23. Relocation of Premises. If Lessor requires that portion
of the Premises located on the 2nd Floor collectively with all of Lessee's
equipment, improvements and property located therein (the "Second Floor
Improvements") for use in conjunction with another suite or for other reasons
connected with Lessor's Project planning program, upon notifying Lessee in
writing, Lessor shall have the right to relocate the Second Floor Improvements
to another location within the Premises, at Lessor's sole cost and expense, and
the terms and conditions of the original Lease (including, without limitation,
the Rentable area of the Premises and the rent to be paid for same) shall remain
in full force and effect, except that a revised EXHIBIT "A" shall become part of
this Lease and shall illustrate the new location of the Second Floor
Improvements.
Section 21.24. Nondiscrimination. Lessee herein covenants by and for
Lessee, Lessee's heirs, executors, administrators and assigns, and all persons
claiming under or through Lessee, and this Lease is made and accepted upon and
subject to the following conditions: That there shall be no discrimination
against or segregation of any person or group of persons on account of race,
color, creed, religion, sex, marital status, ancestry, national origin, gender,
sexual orientation, height, weight or physical characteristics in the leasing,
subleasing, transferring, use, occupancy, tenure or enjoyment of the land herein
leased, nor shall the Lessee, or any person claiming under of through Lessee,
establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, sublessees, subtenants or vendees in the Premises herein
leased.
Section 21.25. Brokers. Except for any brokers listed in the Basic Lease
Information and the commission, if any, payable thereto, each party warrants and
represents tot he other party that no real estate broker or agent or finder has
been involved in securing this Lease and that no brokerage commissions or
finders fees are or will be due or payable to any person with respect to this
Lease. Each party agrees to defend, indemnify, and hold harmless the other from
and against any and all claims, liabilities or expenses, including attorneys'
fees and costs, arising out of or in connection with claims made by any broker
or individual for commissions or fees resulting from the execution of this
Lease.
Section 21.26. Security Systems. Lessor shall not be obligated to
provide or maintain any security patrol or security system. However, if Lessor
elects to provide such patrol or system, the cost thereof shall be included in
Common Area expenses as defined in Section 4.02, and Lessor shall not be
responsible or liable for the quality of any such patrol or system which may be
provided hereunder or for property damage or injury to Lessee, its employees,
invitees or others due to the failure, action or inaction of such patrol or
system.
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Section 21.27. Time is of the Essence. Time is of the essence of this
Lease and each of its provisions.
Section 21.28. Modifications Required by Lessor's Lender. If any lender
of Lessor or ground lessor of the Building or Project or both requires
modification of this Lease that will not materially and adversely change
Lessee's rights and obligations, this Lease shall be so modified and Lessee
shall execute whatever documents are required and deliver them to Lessor within
ten (10) days after the request.
Section 21.29. Joint and Several Obligations to Lessee. If more than one
individual or entity comprises Lessee, the obligations imposed on each
individual or entity that comprises Lessee under this Lease shall be joint and
several.
Section 21.30. Submission of Lease. Submission of this document for
examination or signature by the parties does not constitute an option or offer
to lease the Premises on the terms in this document or a reservation of the
Premises in favor of Lessee. This document is not effective as a Lease or
otherwise until executed and delivered by both Lessor and Lessee.
Section 21.31. Corporate Authority. If Lessee is a corporation, each
individual executing this Lease on behalf of that corporation covenants
represents and warrants that:
(a) The individual is authorized to execute and deliver this Lease on
behalf of that corporation in accordance with a duly adopted resolution of the
corporation's board of directors and in accordance with that corporation's
articles of incorporation or charter and bylaws;
(b) This Lease is binding on that corporation in accordance with its
terms;
(c) The corporation is a duly organized and legally existing corporation
in good standing in the State of California;
(d) The execution and delivery of this Lease by that corporation shall
not result in any breach of or constitute a default under any mortgage, deed of
trust, lease loan, credit agreement, partnership agreement, or other contract or
instrument to which that corporation is a party or by which that corporation may
be bound;
(e) Lessee shall, within fifteen (15) days after the date of this Lease,
deliver to Lessor either (i) a copy of a resolution of Lessee's board of
directors authorizing or ratifying the execution and delivery of this lease,
which resolution shall be duly certified by the secretary or assistant secretary
of the corporation, or (ii) other evidence reasonably satisfactory to Lessor
confirming the foregoing representation; and
(f) If Lessee fails to comply with this Section, each individual
executing this Lease on behalf of the corporation shall be personally liable for
all of Lessee's obligations under this Lease.
Section 21.32. Partnership Authority. If Lessee is a partnership, each
individual executing this Lease on behalf of the partnership represents and
warrants that:
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(a) The individual is duly authorized to execute and deliver this Lease
on behalf of the partnership in accordance with the partnership agreement, or an
amendment to the partnership agreement, now in effect;
(b) This Lease is binding on that partnership;
(c) The partnership is a duly organized and legally existing partnership
and has filed all certificates required by law;
(d) The execution and delivery of this Lease shall not result in any
breach of or constitute a default under any mortgage, deed of trust, lease,
loan, credit agreement, partnership agreement, or other contract or instrument
to which the partnership is a party or by which the partnership may be bound.
Section 21.33. Limited Liability Company Authority. If Lessee is a
limited liability company, each individual executing this Lease on behalf of
that company represents and warrants that:
(a) The individual(s) executing this Lease on behalf of the company have
full power and authority under the company's governing documents to execute and
deliver this Lease in the name of and on behalf of the company and to cause the
company to perform its obligations under this Lease;
(b) The company is a limited liability company duly organized and
validly existing under the laws of the State of California; and
(c) The company has the power and authority under applicable law and its
governing documents to execute and deliver this Lease and to perform its
obligations under this Lease.
Section 21.34. Right to Lease. Lessor reserves the absolute right to
contract with any other person or entity to be a Tenant or occupant in the
Building or Project as Lessor, in Lessor's sole business judgment, determines
best to promote the interests of the Building and Project. Lessee does not rely
on the expectation, and Lessor does not represent, that any specific lessee or
type or number of lessees will, during the Lease Term, occupy any space in the
Building or Project.
Section 21.35. Transportation Management. Lessee shall fully comply with
all current or future compulsory programs imposed by any public authority,
intended to manage parking, transportation, or traffic in and around the
Building or Project. In connection with this compliance, Lessee shall take
responsible action for the transportation planning and management of all
employees located at the Premises by working directly with Lessor, any
government transportation management organization, or other
transportation-related committees or entities. This provision includes programs
such as the following:
(a) Restrictions on the number of peak-hour vehicle trips generated by
Lessee;
(b) Encouragement of increased vehicle occupancy through
employer-sponsored financial or in-kind incentives;
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(c) Implementation of an in-house or area-wide ride-sharing program and
appointment of an employee transportation coordinator; and
(d) Flexible work shifts for employees.
-40-
Section 21.36. Exhibits to Lease.
The following list of Exhibits are hereto attached to this Lease and
made a part thereof:
Exhibit A -- Legal Description
Exhibit B -- Rules and Regulations
Exhibit C -- Schedule of Base Rent
Exhibit D -- SNDA
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED
AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS
LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND
EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES. LESSEE REPRESENTS THAT IT HAS BEEN ADVISED BY ITS LEGAL COUNSEL WITH
RESPECT TO THE NEGOTIATION AND EXECUTION OF THIS LEASE.
LESSOR: LESSEE:
XXXXXX-XXXX LIMITED PARTNERSHIP, GENERAL MAGIC, INC.
A CALIFORNIA LIMITED PARTNERSHIP A DELAWARE CORPORATION
By: /s/ Xxx Xxxx By: /s/ Xxxxx X. Russian
------------------------------- ----------------------------
Xxx Xxxx
Xxxxx X. Russian
------------------------------- ----------------------------
(please type or print name) (please type or print name)
Its: Its: VP and CFO
------------------------------ ----------------------------
Date: February 19 , 2002 Date: February 19 , 2002
----------------------- ---------------------
-00-
-00-
XXXXXXX "X" - XXXXX DESCRIPTION
ATTACHED TO AND FORMING A PART OF
TRIPLE NET LEASE
BETWEEN
XXXXXX-XXXX LIMITED PARTNERSHIP, AS LESSOR,
AND
GENERAL MAGIC, INC., AS LESSEE
[TO BE INSERTED]
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EXHIBIT "B" - RULES AND REGULATIONS
ATTACHED TO AND FORMING A PART OF
TRIPLE NET LEASE
BETWEEN
XXXXXX-XXXX LIMITED PARTNERSHIP, AS LESSOR,
AND
GENERAL MAGIC, INC., AS LESSEE
("LEASE")
RULES AND REGULATIONS
1. Subject to any different use of the exterior portion of the Premises
to which Lessor consents, as provided in the Basic Lease Provisions, Lessee and
Lessee's employees shall not in any way obstruct the sidewalks, entry passages,
pedestrian passageways, driveways, entrances and exits to the Project or the
Building, and they shall use the same only as passageways to and from their
respective work areas.
2. Any sash doors, sashes, windows, glass doors, lights and skylights
that reflect or admit light into the Common Area of the Project shall not be
covered or obstructed by the Lessee. Water closets, urinals and wash basins
shall not be used for any purpose other than those for which they were
constructed, and no rubbish, newspapers, food or other substance of any kind
shall be thrown into them. Lessee shall not xxxx, drive nails, screw or drill
into, paint or in any way deface the exterior walls, roof, foundations, bearing
walls or pillars without the prior written consent of Lessor, which consent may
be withheld in Lessor's sole discretion. The expense of repairing any breakage,
stoppage or damage resulting from a violation of this rule shall be borne by
Lessee.
3. No awning or shade shall be affixed or installed over or in the
windows or the exterior of the Premises except with the consent of Lessor, which
may be withheld in Lessor's discretion. Lessor hereby consents to the existing
coverings over the windows in the NOC.
4. No boring or cutting for wires shall be allowed, except with the
consent of Lessor, which consent may be withheld in Lessor's sole discretion.
Lessor hereby consents to the existing boring and cutting for wires that run
between floors and ceiling into the NOC as well as existing borings and wiring
for telecommunications.
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5. Lessee shall not do anything in the Premises, or bring or keep
anything therein, which will in any way increase or tend to increase the risk of
fire or the rate of fire insurance or which shall conflict with the regulations
of the fire department or the law or with any insurance policy on the Premises
or any part thereof, or with any rules or regulations established by any
administrative body or official having jurisdiction, and it shall not use any
machinery therein, even though its installation may have been permitted, which
may cause any unreasonable noise, jar, or tremor to the floors or walls, or
which by its weight might injure the floors of the Premises.
6. If Lessee shall require extra heavy equipment, Lessee shall notify
Lessor of such fact and shall pay the cost of structural bracing to accommodate
it. All damage done to the Premises or Project by installing, removing, or
maintaining extra heavy equipment shall be repaired at the expense of Lessee.
7. Lessee and Lessee's officers, agents and employees shall not make nor
permit nor suffer any loud, unusual or improper music or other noises on or
about the Premises which emit sound from the Premises, nor interfere in any
other way with other tenants at the Project or those having business with them,
nor bring into or keep within the Project any animal or bird or any vehicle
(other than bicycles of employees or bicycles held for sale as merchandise),
except such vehicle as Lessor may from time to time permit.
8. All freight must be moved into, within and out of the Premises only
during such hours and according to such regulations as may be posted from time
to time by Lessor.
9. No aerial, satellite dish or antenna shall be erected on the roof or
exterior walls of the Premises, or on the grounds, without in each instance, the
written consent of Lessor. Any aerial so installed without such written consent
shall be subject to removal without notice at any time. Lessor's consent will
not be unreasonably withheld or delayed. Lessee's satellite dish installations
existing as of the date of this Lease are hereby consented to.
10. All garbage, including wet garbage, refuse or trash shall be placed
by the Lessee in the receptacles provided by the Lessor for that purpose and
only during those times prescribed by the Lessor.
11. Lessee shall not burn any trash or garbage at any time in or about
the Premises or any area of the Project.
12. Lessee shall observe all reasonable security rules and regulations
issued by Lessor and comply with reasonable instructions and/or directions of
any duly authorized security personnel for the protection of the Project and all
tenants therein.
13. Any requirements of Lessee will be considered only upon written
application to Lessor at Lessor's address set forth in the Lease.
14. No waiver of any rule or regulation by Lessor shall be effective
unless expressed in writing and signed by Lessor or its authorized agent.
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15. Lessor reserves the right to exclude or expel from the Project any
person who, in the judgment of Lessor, is intoxicated or under the influence of
liquor or drugs, or who shall in any manner do any act in violation of the law
or the rules and regulations of the Project.
16. Lessor reserves the right at any time to change or rescind any one
or more of these rules or regulations or make such other and further reasonable
rules and regulations as in Lessor's judgment, may from time to time be
necessary for the operation, management, safety, care and cleanliness of the
Project and the Premises, and for the preservation of good order therein, as
well as for the convenience of other occupants and tenants of the Project.
Lessor shall not be responsible to Lessee or to any other person for the
non-observance or violation of the rules and regulations by any other tenant or
other person. Lessee shall be deemed to have read these rules and have agreed to
abide by them as a condition to its occupancy of the Premises.
17. Lessee shall abide by any additional rules or regulations which are
ordered or requested by any governmental or military authority.
18. In the event of any conflict between these rules and regulations, or
any further or modified rules and regulations from time to time issued by
Lessor, and the Lease provisions, the Lease provisions shall govern and control.
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EXHIBIT "C" -- SCHEDULE OF BASE RENT
ATTACHED TO AND FORMING A PART OF
TRIPLE NET LEASE
BETWEEN
XXXXXX-XXXX LIMITED PARTNERSHIP, AS LESSOR,
AND
GENERAL MAGIC, INC., AS LESSEE
("LEASE")
SCHEDULE OF BASE RENT FOR INITIAL LEASE TERM
RENTABLE MONTHLY ANNUAL
BEGINNING RENTAL RATE SQ. FT. BASE RENT BASE RENT
--------- ----------- -------- ------------ --------------
7/1/02 $2.100 59,293 $124,515.30 $1,494,183.60
7/1/03 $2.163 59,293 $128,250.75 $1,539,009.00
7/1/04 $2.228 59,293 $132,104.80 $1,585,257.60
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EXHIBIT "D" - SNDA
ATTACHED TO AND FORMING A PART OF
TRIPLE NET LEASE
BETWEEN
XXXXXX-XXXX LIMITED PARTNERSHIP, AS LESSOR,
AND
GENERAL MAGIC, INC., AS LESSEE
("LEASE")
SNDA
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this "AGREEMENT")
is made by and between TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a
New York corporation with offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("LENDER") and (enter TENANT NAME) a (enter STATE) [limited liability company]
[general partnership] [limited partnership] [ d/b/a/] with its principal place
of business at____ ("TENANT").
RECITALS:
A. Lender has made or is about to make a loan (together with all
advances and increases, the "LOAN") to ______, a [an] [individual] [corporation]
[ limited company] [ general partnership] [ limited partnership] ("BORROWER").
B. Borrower, as landlord, and Tenant have entered into a lease dated
_______ as amended by amendments dated __(if none, enter "none") ______ (the
"LEASE") which leased to Tenant [Suite No. ] [Floor] (the "LEASED SPACE")
located in the Property (defined below).
C. The Loan is or will be secured by the [Open-End] Mortgage, Assignment
of Leases and Rents, Fixture Filing Statement and Security Agreement recorded or
to be recorded in the official records of the County of Santa Xxxxx , State of
California (together with all advances, increases,
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amendments or consolidations, the "MORTGAGE") and the Assignment of Leases and
Rents recorded or to be recorded in such official records (together with all
amendments or consolidations, the "ASSIGNMENT"), assigning to Lender the Lease
and all rent, additional rent and other sums payable by Tenant under the Lease
(the "RENT").
D. The Mortgage encumbers the real property, improvements and fixtures
located at (enter address) North Xxxx Avenue in the City of Sunnyvale , County
of Santa Xxxxx , State of California , commonly known as (project name, if any)
, and described on Exhibit "A" (the "PROPERTY").
IN CONSIDERATION of the mutual agreements contained in this Agreement,
Lender and Tenant agree as follows:
1. The Lease and all of Tenant's rights under the Lease are and will
remain subject and subordinate to the lien of the Mortgage and all of Lender's
rights under the Mortgage and Tenant will not subordinate the Lease to any other
lien against the Property without Lender's prior consent.
2. This Agreement constitutes notice to Tenant of the Mortgage and the
Assignment and, upon receipt of notice from Lender, Tenant will pay the Rent as
and when due under the Lease to Lender or to a bank account designated by Lender
and the payments will be credited against the Rent due under the Lease.
3. Tenant does not have and will not acquire any right or option to
purchase any portion of or interest in the Property.
4. Tenant and Lender agree that if Lender exercises its remedies under
the Mortgage or the Assignment and if Tenant is not then in default under this
Agreement and if Tenant is not then in default beyond any applicable grace and
cure periods under the Lease:
(a) Lender will not name Tenant as a party to any judicial or
non-judicial foreclosure or other proceeding to enforce the Mortgage
unless joinder is required under applicable law but in such case Lender
will not seek affirmative relief against Tenant, the Lease will not be
terminated and Tenant's possession of the Leased Space will not be
disturbed;
(b) If Lender or any other entity (a "SUCCESSOR LANDLORD") acquires
the Property through foreclosure, by other proceeding to enforce the
Mortgage or by deed-in-lieu of foreclosure (a "FORECLOSURE"), Tenant's
possession of the Leased Space will not be disturbed and the Lease will
continue in full force and effect between Successor Landlord and Tenant;
and
(c) If, notwithstanding the foregoing, the Lease is terminated as a
result of a Foreclosure, a lease between Successor Landlord and Tenant
will be deemed created, with no further instrument required, on the same
terms as the Lease except that the term
-49-
of the replacement lease will be the then unexpired term of the
Lease. Successor Landlord and Tenant will execute a replacement lease at
the request of either.
5. Upon Foreclosure, Tenant will recognize and attorn to Successor
Landlord as the landlord under the Lease for the balance of the term. Tenant's
attornment will be self-operative with no further instrument required to
effectuate the attornment except that at Successor Landlord's request, Tenant
will execute instruments reasonably satisfactory to Successor Landlord
confirming the attornment.
6. Successor Landlord will not be:
(a) liable for any act or omission of any prior landlord under the
Lease occurring before the date of the Foreclosure except for repair and
maintenance obligations of a continuing nature imposed on the landlord
under the Lease;
(b) required to credit Tenant with any Rent paid more than one month
in advance or for any security deposit unless such Rent or security
deposit has been received by Successor Landlord;
(c) bound by any amendment, renewal or extension of the Lease that is
inconsistent with the terms of this Agreement or is not in writing and
signed both by Tenant and landlord;
(d) bound by any reduction of the Rent unless the reduction is in
connection with an extension or renewal of the Lease at prevailing
market terms or was made with Lender's prior consent;
(e) except for Tenant's termination rights in Article X (Damage and
Destruction) and Article XV (Condemnation of Premises) of the Lease,
bound by any reduction of the term(1) of the Lease or any termination,
cancellation or surrender of the Lease unless the reduction,
termination, cancellation or surrender occurred during the last 6 months
of the term or was made with Lender's prior consent;
(f) bound by any amendment, renewal or extension of the Lease entered
into without Lender's prior consent if the Leased Space represents 50%
or more of the net rentable area of the building in which the Leased
Space is located;
(g) Intentionally Deleted;
(h) subject to any credits, offsets, claims, counterclaims or
defenses that Tenant may have that arose prior to the date of the
Foreclosure or liable for any damages Tenant may
--------
(1) For purposes of this subparagraph "the term of the Lease" includes any
renewal term after the right to renew has been exercised.
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suffer as a result of any misrepresentation, breach of warranty or any
act of or failure to act by any party other than Successor Landlord;
(i) bound by any obligation to make improvements to the Property,
including the Leased Space, to make any payment or give any credit or
allowance to Tenant provided for in the Lease or to pay any leasing
commissions arising out of the Lease, except that Successor Landlord
will be:
(i) bound by any such obligations provided for in the
Lender-approved form lease;
(ii) bound by any such obligations if the overall economic terms
of the Lease (including the economic terms of any renewal options)
represented market terms for similar space in properties comparable to
the Property when the Lease was executed; and
(iii) bound to comply with the casualty and condemnation
restoration provisions included in the Lease provided that Successor
Landlord receives the insurance or condemnation proceeds;
or
(j) liable for obligations under the Lease with respect to any
off-site property or facilities for the use of Tenant (such as off-site
leased space or parking) unless Successor Landlord acquires in the
Foreclosure the right, title or interest to the off-site property.
7. Lender will have the right, but not the obligation, to cure any
default by Borrower, as landlord, under the Lease. Tenant will notify Lender of
any default that would entitle Tenant to terminate the Lease or xxxxx the Rent
and any notice of termination or abatement will not be effective unless Tenant
has so notified Lender of the default and Lender has had a 30-day cure period
(or such longer period as may be necessary if the default is not susceptible to
cure within 30 days) commencing on the latest to occur of the date on which (i)
the cure period under the Lease expires; (ii) Lender receives the notice
required by this paragraph; and (iii) Successor Landlord obtains possession of
the Property if the default is not susceptible to cure without possession.
8. All notices, requests or consents required or permitted to be given
under this Agreement must be in writing and sent by certified mail, return
receipt requested or by nationally recognized overnight delivery service
providing evidence of the date of delivery, with all charges prepaid, addressed
to the appropriate party at the address set forth above.
9. Any claim by Tenant against Successor Landlord under the Lease or
this Agreement will be satisfied solely out of Successor Landlord's interest in
the Property and Tenant will not seek recovery against or out of any other
assets of Successor Landlord. Successor Landlord will have no liability or
responsibility for any obligations under the Lease that arise subsequent to any
transfer of the Property by Successor Landlord.
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10. This Agreement is governed by and will be construed in accordance
with the laws of the state or commonwealth in which the Property is located.
11. Lender and Tenant waive trial by jury in any proceeding brought by,
or counterclaim asserted by, Lender or Tenant relating to this Agreement.
12. If there is a conflict between the terms of the Lease and this
Agreement, the terms of this Agreement will prevail as between Successor
Landlord and Tenant.
13. This Agreement binds and inures to the benefit of Lender and Tenant
and their respective successors, assigns, heirs, administrators, executors,
agents and representatives.
14. This Agreement contains the entire agreement between Lender and
Tenant with respect to the subject matter of this Agreement, may be executed in
counterparts that together constitute a single document and may be amended only
by a writing signed by Lender and Tenant.
IN WITNESS WHEREOF, Lender and Tenant have executed and delivered this Agreement
as of ___________, 2002.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, a New
York corporation
By:__________________________
Name: ___________________
Title: __________________
Insert Name of Tenant ,
--------------------- -----------------
a [an] [individual]__[corporation] [limited liability company] [general
partnership] [limited partnership] [d/b/a/]
-
By:_____________________________
Name:_______________________
_______________________
Title: ____________________ _______________________
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Borrower hereby consents to this Agreement, including the provisions set forth
in paragraph 2 above.
Xxxxxx-Xxxx,
a California limited partnership
By:_____________________________
Xxx Xxxx, General Partner
ACKNOWLEDGMENT
[OBSERVE ALL STATE SPECIFIC REQUIREMENTS FOR EXECUTION OF A
RECORDABLE DOCUMENT AND ADD STATE-APPROVED FORMS OF
ACKNOWLEDGEMENT]
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EXHIBIT A
Property Description
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