COMMERCIAL LEASE
(GENERAL FORM)
1. PARTIES.
This Lease is made and entered into this 1st day of May, 1998 by and between
X. X. Xxxxxxx (hereinafter referred to as "Landlord") and Clontech Laboratories,
Inc., A California Corporation (hereinafter referred to as "Tenant").
2. PREMISES.
Landlord hereby leases to Tenant and Tenant hereby leases from landlord, on
the terms and conditions hereinafter set forth that certain real property and
the building and other improvements located thereon situated in the City of Palo
Alto, County of Santa Xxxxx, State of CA, commonly known as 0000 Xxxxxx Xxx and
described as all the land and improvements thereon, consisting of a building of
9,575 sq. ft. with appurtenances being identified as APN-127-15-013 (said real
property is hereinafter called the "Premises").
3. TERM.
The term of this Lease shall be for (5) years, commencing on May 1, 1998
and ending on April 31, 2003, unless sooner terminated as hereinafter provided.
4. RENT.
Tenant shall pay Landlord as rent for the Premises the following sums per
month, in advance on the first day of each month during the term of this Lease:
During the first _____________ year of the term of this Lease, the sum of
$9,575.00 (nine thousand five hundred seventy-five dollars) dollars per month
During the first __________ year through the ___________ year of the term of this Lease, the sum of See Addendum
(E.G. 5TH) (E.G. 10TH) -------------------
( ) dollars per month
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During the first ___________ year through the ___________ year of the term of this Lease, the sum of See Addendum
(E.G. 15TH) (E.G. 20TH) -------------------
( ) dollars per month
---------------------------------------------------------------------- -------------------------
Tenant shall pay to Landlord upon the execution of this Lease the sum of _______
______________________________ ($9,575.00) dollars as rent for May rent 1998.
Rent for any period during the term of this Lease which is for less than one (1)
month, shall be a pro rata portion of the monthly installment. Rent shall be
payable without notice or demand and without any deduction, off-set, or
abatement in lawful money of the United States to the Landlord at the address
stated herein for notices or to such other persons or such other places as the
Landlord may designate to Tenant in writing.
5. SECURITY DEPOSIT.
Tenant shall deposit with landlord upon the execution of this Lease the sum
of ($9,575.000 To be annually increased) dollars as a security deposit for the
Tenant's faithful performance of the provisions of this Lease. If Tenant fails
to pay rent or other charges due hereunder, or otherwise defaults with respect
to any provision of this Lease, Landlord may use the security deposit, or any
portion of it, to cure the default or compensate Landlord for all damages
sustained by Landlord resulting from Tenant's default. Tenant shall immediately
on demand pay to landlord the sum equal to that portion of the security deposit
expended or applied by Landlord which was provided for in this paragraph so as
to maintain the security deposit in the sum initially deposited with Landlord.
Landlord shall not be required to keep the security deposit separate from its
general account nor shall Landlord be required to pay Tenant any interest on the
security deposit. If Tenant performs all of Tenant's obligations under this
Lease, the security deposit or that portion thereof which has not previously
been applied by the Landlord, shall be returned to Tenant within fourteen (14)
days after the expiration of the term of this Lease, or after Tenant has vacated
the Premises, whichever is later.
6. USE.
Tenant shall use the Premises only for research and development in
biotechnology, light manufacturing and other related activities and for no other
purpose without the Landlord's prior written consent.
Tenant shall not do, bring or keep anything in or about the Premises that
will cause a cancellation of any insurance covering the Premises or the building
in which the Premises are located. If the rate of any insurance carried by the
Landlord is increased as a result of tenant's use, Tenant shall pay to Landlord
within ten (10) days after written demand from Landlord, the amount of any such
increase. Tenant shall comply with all laws concerning the Premises or Tenant's
use of the Premises, including without limitation, the obligation at Tenant's
cost to alter, maintain, or restore the Premises in compliance and conformity
with all laws relating to the condition, use, or
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occupancy of the Premises by Tenant during the term of this Lease. Tenant shall
not use or permit the use of the Premises in any manner that will tend to create
waste or a nuisance or, if there shall be more than one tenant of the building
containing the Premises, which shall unreasonably disturb any other tenant.
Tenant hereby accepts the Premises in their condition existing as of the
date that Tenant possesses the Premises, subject to all applicable zoning,
municipal, county and state laws, ordinances, regulations governing or
regulating the use of the Premises and accepts this Lease subject thereto and to
all matters disclosed thereby. Tenant hereby acknowledges that neither the
Landlord nor the Landlord's agent has made any representation or warranty to
Tenant as to the suitability of the Premises for the conduct of Tenant's
business.
7. TAXES.
(a) Real Property Taxes.
Tenant shall pay all real property taxes and general assessments levied and
assessed against the Premises during the term of this Lease.
If it shall be Tenant's obligation to pay such real property taxes and
assessments hereunder, Landlord shall use its best efforts to cause the Premises
to be separately assessed from other real property owned by the Landlord. If
Landlord is unable to obtain such a separate assessment, the assessor's
evaluation based on the building and other improvements that are a part of the
Premises shall be used to determine the real property taxes. If this evaluation
is not available, the parties shall equitably allocate the property taxes
between the building and other improvements that are a part of the Premises and
all buildings and other improvements included in the tax xxxx. In making the
allocation, the parties shall reasonably evaluate the factors to determine the
amount of the real property taxes so that the allocation of the building and
other improvements that are a part of the Premises will not be less than the
ratio of the total number of square feet of the building and other improvements
that are a part of the Premises bears to the total number of square feet in all
buildings and other improvements included in the tax xxxx.
Real property taxes attributable to land in the Premises shall be
determined by the ratio that the total number of square feet in the Premises
bears to the total number of square feet of land included in the tax xxxx.
(b) Personal Property Taxes.
Tenant shall pay prior to the delinquency all taxes assessed against and
levied upon the trade fixtures, furnishings, equipment and other personal
property of Tenant contained in the Premises. Tenant shall endeavor to cause
such trade fixtures, furnishings and equipment and all other personal property
to be assessed and billed separately from the property of the Landlord. If any
of Tenant's said personal property shall be assessed with Landlord's property,
Tenant shall pay to Landlord the taxes attributable to Tenant within ten (10)
days after the receipt of a written statement from Landlord setting forth the
taxes applicable to Tenant's property.
8. UTILITIES.
Tenant shall make all arrangements and pay for all water, gas, heat, light,
power, telephone and other utility services supplied to the Premises together
with any taxes thereon and for all connection charges. If any such services are
not separately metered to Tenant, the Tenant shall pay a reasonable proportion,
to be determined by Landlord, of all charges jointly metered with other
premises.
9. MAINTENANCE AND REPAIRS
(a) Tenant's Obligations.
Subject to the provisions of sub-paragraph (a) above and Article 12, Tenant
at Tenant's sole cost and expense shall keep in good order, condition and repair
the premises and every part thereof including, without limitation, all Tenant's
personal property, fixtures, signs, store fronts, plate glass, show windows,
doors, interior walls, interior ceiling, and lighting facilities.
If Tenant fails to perform Tenant's obligation as stated herein, Landlord
may at its option (but shall not be required to), enter the Premises, after ten
(10) days prior written notice to Tenant, put the same in good order, condition
and repair, and the costs thereof together with interest thereon at the rate of
ten percent (10%) per annum shall become due and payable as additional rental to
Landlord together with Tenant's next rental installment.
10. ALTERATIONS AND ADDITIONS.
(a) Tenant shall not, without the Landlord's prior written consent. make
any alterations, improvements or additions in or about the Premises except for
non-structural work which does not exceed $1,000.00 in cost. As a condition to
giving any such consent, the Landlord may require the Tenant to remove any such
alterations, improvements, or additions at the expiration of the term, and to
restore the Premises to their prior condition by giving Tenant thirty (30) days
written notice prior to the expiration of the term that Landlord requires Tenant
to remove any such alterations, improvements, or additions that Tenant has made
to the Premises. If Landlord so elects, Tenant at its sole cost shall restore
the Premises to the condition designated by Landlord in its election before the
last day of the term of the Lease.
Before commencing any work relating to the alterations, additions, or
improvements affecting the
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Premises, Tenant shall notify Landlord in writing of the expected date of the
commencement of such work so that Landlord can post and record the appropriate
notices of non-responsibility to protect Landlord from any mechanic's liens,
materialmen liens, or any other liens. In any event, Tenant shall pay, when
due, all claims for labor and materials furnished to or for Tenant at or for use
in the Premises. Tenant shall not permit any mechanic's liens or materialmen's
liens to be levied against the Premises for any labor or material furnished to
Tenant or claimed to have been furnished to Tenant or Tenant's agents or
contractors in connection with work of any character performed or claimed to
have been performed on the Premises by or at the direction of Tenant. Tenant
shall have the right to assess the validity of any such lien if, immediately on
demand by Landlord, Tenant procures and records a lien release bond meeting the
requirements of California Civil Code Section 3143 and shall provide for the
payment of any sum that the claimant may recover on the claim (together with the
costs of suit, if it is recovered in the action).
Unless the Landlord requires their removal as set forth above, all
alterations, improvements or additions which are made on the Premises by the
Tenant shall become the property of the Landlord and remain upon and be
surrendered with the Premises at the expiration of the term. Notwithstanding
the provisions of this paragraph, Tenant's trade fixtures, furniture, equipment
and other machinery, other than that which is affixed to the Premises so that it
cannot be removed without material or structural damage to the Premises, shall
remain the property of the Tenant and removed by Tenant at the expiration of the
term of this Lease.
11. INSURANCE; INDEMNITY.
(a) Fire Insurance.
Tenant at its cost shall maintain during the term of this Lease on the
Premises a policy or policies of standard fire and extended coverage insurance
to the extent of at least ninety (90%) percent of full replacement value
thereof. Said insurance policies shall be issued in the names of Landlord and
Tenant, as their interests may appear.
Tenant at its cost shall maintain during the term of this Lease on all
its personal property, Tenant's improvements, and alterations in or about the
Premises, a policy of standard fire and extended coverage insurance, with
vandalism and malicious mischief endorsements, to the extent of their full
replacement value. The proceeds from any such policy shall be used by Tenant
for the replacement of personal property or the restoration of Tenant's
improvements or alterations.
(b) Liability Insurance.
Tenant at its sole cost and expense shall maintain during the term of
this Lease public liability and property damage insurance with a single combined
liability limit of five hundred thousand ($500,000.00) dollars, and property
damage limits of not less that one hundred thousand ($100,000.00) dollars,
insuring against all liability of Tenant and its authorized representatives
arising out of and in Connection with Tenant's use or occupancy of the Premises,
Both public liability insurance and property damage insurance shall insure
performance by Tenant of the indemnity provisions in Sub-paragraph (d) below,
but the limits of such insurance shall not, however, limit the liability of
Tenant hereunder. Both Landlord and Tenant shall be named as additional
insureds, and the policies shall contain cross-liability endorsements. If
Tenant shall fail to procure and maintain such insurance the Landlord may, but
shall not be required to, procure and maintain same at the expense of Tenant and
the cost thereof, together with interest thereon at the rate of ten (10%)
percent per annum, shall become due and payable as additional rental to Landlord
together with Tenant's next rental installment.
(c) Waiver of Subrogation.
Tenant and Landlord each waives any and all rights of recovery against
the other, or against the officers, employees, agents, and representatives of
the other, for loss of or damage to such waiving party or its property or the
property of others under its control, where such loss or damage is insured
against under any insurance policy in force at the time of such loss or damage.
Each party shall cause each insurance policy obtained by it hereunder 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 such policy.
(d) Hold Harmless.
Tenant shall indemnify and hold Landlord harmless from and against any
and all claims arising from Tenant's use or occupancy of the Premises or from
the conduct of its business or from any activity, work, or things which may be
permitted or suffered by Tenant in or about the Premises including all damage,
costs, attorney's fees, expenses and liabilities incurred in the defense of any
claim or action or proceeding arising therefrom. Except for Landlord's willful
or grossly negligent conduct, Tenant hereby assumes all risk of damage to
property or injury to person in or about the Premises from any cause, and Tenant
hereby waives all claims in respect thereof against Landlord.
(e) Exemption of Landlord from Liability.
Except for Landlord's willful or grossly negligent conduct, Tenant
hereby agrees that Landlord shall not be
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liable for any injury to Tenant's business or loss of income therefrom or for
damage to the goods, wares, merchandise, or other property of Tenant, Tenant's
employees, invitees, customers or any other person in or about the Premises; nor
shall Landlord be liable for injury to the person of Tenant. Tenant's
employees, agents, contractors, or invitees, whether such damage or injury is
caused by or results from fire, steam, electricity, gas, water or rain, or from
the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air-conditioning, or lighting fixtures, or from any other
cause, whether such damage results from conditions arising upon the Premises or
upon other portions of the building in which the Premises are a part, or from
any other sources or places. Landlord shall not be liable to Tenant for any
damages arising from any act or neglect of any other tenant, if any, of the
building in which the Premises are located.
12. ASSIGNMENT AND SUBLETTING.
Tenant shall not voluntarily or by operation of law assign, transfer,
sublet, mortgage, or otherwise transfer or encumber all or any part of Tenant's
interest in this Lease or in the Premises without Landlord's prior written
consent which consent shall not be unreasonably withheld. Any attempted
assignment, transfer, mortgage, encumbrance, or subletting without such consent
shall be void and shall constitute a breach of this Lease. If Tenant is a
corporation, any dissolution, merger, consolidation or other reorganization of
Tenant, or the sale or other transfer of a controlling percentage of tile
capital stock of Tenant, or the sale of at least fifty-one (51%) percent of the
value of the assets of Tenant, shall be deemed a voluntary assignment. The
phrase "controlling percentage" means the ownership of, and the right to vote,
stock possessing at least fifty-one (51%) percent of the total combined voting
power of all classes of Tenant's capital stock issued, outstanding, and entitled
to vote for the election of directors. This paragraph shall not apply to
corporations the stock of which is traded through an exchange or over the
counter.
Regardless of Landlord's consent, no subletting or assignment shall
release Tenant or Tenant's obligation to pay the rent and to perform all other
obligations to be performed by Tenant hereunder for the term of this Lease. The
acceptance of rent by Landlord from any other person shall not be deemed a
waiver by Landlord of any provision hereof. Consent to one assignment or
subletting shall not be deemed consent to any subsequent assignment or
subletting.
13. DEFAULT.
(a) Events of Default.
The occurrence of any one or more of tile following events shall
constitute a default and breach of this Lease by Tenant:
(1) Failure to pay rent when due, if the failure continues for five
(5) days after written notice has been given to Tenant.
(2) Failure to perform any other provision of this Lease if the
failure to perform is not cured within thirty (30) days after written notice
thereof has been given to Tenant by Landlord. If the default cannot reasonably
be cured within said thirty (30) day period, Tenant shall not be in default
under this Lease if Tenant commences to cure the default within the thirty (30)
day period and diligently prosecutes the same to completion.
(3) The making by Tenant of any general assignment. or general
arrangement for the benefit of creditors; the filing by or against Tenant of a
petition to have Tenant adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy unless the same is dismissed
within sixty (60) days; the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in the Lease, where possession is not restored to Tenant
within thirty (30) days; or the attachment, execution or other judicial seizure
of substantially all of Tenant's assets located at the Premises or of Tenant's
interest in the Lease, where such seizure is not discharged within thirty (30)
days.
Notices given under this paragraph shall specify the alleged default
and the applicable lease provisions, and shall demand that Tenant perform the
provisions of this Lease or pay the rent that is in arrears as the case may be,
within the applicable period of time. No such notice shall be deemed a
forfeiture or a termination of this Lease unless Landlord so elects in the
notice.
(b) Landlord's Remedies.
The Landlord shall have the following remedies if Tenant commits a
default under this Lease. These remedies are not exclusive but are cumulative
and in addition to any remedies now or hereafter allowed by law.
Landlord can continue this Lease in full force and effect, and the
Lease will continue in effect so long as Landlord does not terminate Tenant's
right to possession, and the Landlord shall have the right to collect rent when
due. During the period that Tenant is in default, Landlord can enter the
Premises and relet them, or any part of them, to third parties for Tenant's
account. Tenant shall be liable immediately to the Landlord for all costs the
Landlord incurs in reletting the Premises, including, without limitation,
brokers' commissions, expenses of remodeling the Premises required by the
reletting, and like costs. Reletting can be for a period shorter or longer than
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the remaining term of this Lease. Tenant shall pay to Landlord the rent due
under this Lease on the dates the rent is due, less the rent Landlord receives
from any reletting. No act by Landlord allowed by this paragraph shall
terminate this Lease unless Landlord notifies Tenant that Landlord elects to
terminate this Lease. After Tenant's default and for so long as Landlord has
not terminated Tenant's right to possession of the Premises, if Tenant obtains
Landlord's consent, Tenant shall have the right to assume or sublet its interest
in the Lease, but Tenant shall not be released from liability. Landlord's
consent to the proposed assignment or subletting shall not be unreasonably
withheld.
Landlord elects to relet the Premises as provided in this paragraph,
any rent that Landlord receives from such reletting shall apply from to the
payment of any indebtedness from Tenant to Landlord other than the rent due from
Tenant to Landlord; secondly, to all costs, including maintenance, incurred by
Landlord in such reletting; and third, to any rent due and unpaid under this
Lease. After deducting the payments referred to in this paragraph, any sum
remaining from the rent Landlord receives from such reletting shall be held by
Landlord and applied in payment of future rent as rent becomes due under this
Lease. In no event shall tenant be entitled to any excess rent received by
Landlord. If, on the date rent is due under this Lease, the rent received from
the reletting is less than the rent due on that date. Tenant shall pay to
Landlord, in addition to the remaining rent due, all costs, including
maintenance, that Landlord shall have incurred in reletting that remain after
applying the rent received from reletting as provided in this paragraph.
Landlord can, at its option, terminate Tenant's right to possession of
the Premises at any time. No act by Landlord other than giving written notice
to Tenant shall terminate this Lease. Acts of maintenance, efforts to relet the
Premises, or the appointment of a receiver on Landlord's initiative to protect
Landlord's interest in this Lease shall not constitute a termination of Tenant's
right to possession. In the event of such termination. Landlord has the right
to recover from Tenant:
(1) The worth, at the time of the award, of the unpaid rent that had
been earned at the time of the termination of this Lease;
(2) 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 the termination of
this Lease until the time of the award exceeds the amount of the loss of rent
that Tenant proves could have been reasonably avoided;
(3) 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 the award exceeds the
amount of the loss of rent that Tenant proves could have been reasonably
avoided; and
(4) Any other amount, including court costs, necessary to compensate
Landlord for all detriment proximately caused by Tenant's default.
"The worth at the time of the award," as used in (1) and (2) of this
paragraph is to be computed by allowing interest at the maximum rate an
individual is permitted by law to charge. "The worth at the time of the award,"
as referred to in (3) of this paragraph is to be computed by discounting the
amount at the discount rate of the Federal Reserve Bank of San Francisco at the
time of the award, plus one (1%) percent.
If Tenant is in default under the terms of this Lease, Landlord shall
have the additional right to have a receiver appointed to collect rent and
conduct Tenant's business. Neither the filing of a petition for the appointment
of a receiver nor the appointment itself shall constitute an election by
Landlord to terminate this Lease.
Landlord at any time after Tenant commits a default, can cure the
default at Tenant's cost and expense. If Landlord at any time, by reason of
Tenant's default, pays any sum or does any act that requires the payment of any
sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord
at the time the sum is paid, and if paid at a later date shall bear interest at
the maximum rate an individual is permitted by law to charge from the date the
sum is paid by Landlord until Landlord is reimbursed by Tenant. The sum,
together with interest thereon, shall be considered additional rent.
14. SIGNS.
Tenant shall not have the right to place, construct or maintain any
sign, advertisement, awning, banner, or other exterior decorations on the
building or other improvements that are a part of the Premises without
Landlord's prior, written consent, which consent shall not be unreasonably
withheld.
15. EARLY POSSESSION.
In the event that the Landlord shall permit Tenant to occupy the
Premises prior to the commencement date of the term at this Lease, such
occupancy shall be subject to all the provisions of this Lease. Said early
possession shall not advance the termination date of this Lease.
16. SUBORDINATION.
This Lease, at Landlord's option, shall be subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation for security now or
hereafter placed upon the real property of which the Premises are a part and
5.
to any and all advances made on the security thereof and to all renewal,
modifications, and extensions thereof. Notwithstanding any such subordination,
Tenant's right to quiet possession of the Premises shall not be disturbed if
Tenant is not in default and so long as Tenant shall pay the rent and observe
and perform all the other provisions of this Lease, unless this Lease is
otherwise terminated pursuant to its terms. If any mortgagee, trustee, or
ground lessor shall elect to have this Lease prior to the lien of its mortgage
or deed of trust or ground lease, and shall give written notice thereof to
Tenant, this Lease shall be deemed prior to such mortgage, deed of trust or
ground lease, whether this Lease is dated prior to or subsequent to the date of
such mortgage, deed of trust or ground lease, or the date of recording thereof.
Tenant agrees to execute any documents requiring to effect such subordination or
to make this Lease prior to the lien of any mortgage, deed of trust, or ground
lease, as the case may be, and failing to do so within ten (10) days after
written demand from Landlord does hereby make, constitute and irrevocably
appoint Landlord as Tenant's attorney in fact and its Tenant's name, place and
stead to do so.
17. SURRENDER.
On the last day of the term hereof, or on any sooner termination,
Tenant shall surrender the Premises to Landlord in good condition, broom clean,
ordinary wear and tear accepted. Tenant shall repair any damage to the Premises
occasioned by its use thereof, or by the removal of Tenant's trade fixtures.
furnishings and equipment which repair shall include the patching and filling of
holes and repair of structural damage. Tenant shall remove all of its personal
property and fixtures on the Premises prior to the expiration of the term of
this Lease and if required by Landlord pursuant to Article 10(a) above, any
alterations, improvements or additions made by Tenant to the Premises. If
Tenant fails to surrender the Premises to Landlord on the expiration of the
Lease as required by this paragraph, Tenant shall hold Landlord harmless from
all damages resulting from Tenant's failure to vacate the Premises, including,
without limitation, claims made by any succeeding tenant resulting from Tenant's
failure to surrender the Premises.
18. HOLDING OVER.
If the Tenant, with the Landlord's consent, remains in possession of
the Premises alter the expiration or termination of the term of this Lease, such
possession by Tenant shall be deemed to be a tenancy from month to-month at a
rental in the amount of the last monthly rental plus all other charges payable
hereunder, upon all the provisions of this Lease applicable to month-to-month
tenancy.
19. BINDING ON SUCCESSORS AND ASSIGNS.
The terms, conditions and covenants of this Lease shall be binding
upon and shall inure to the benefit of each of the parties hereto, their heirs,
personal representatives, successors and assigns.
20. NOTICES.
Whenever under this Lease a provision is made for any demand, notice
or declaration of any kind, it shall be in writing and served either personally
or sent by registered or certified United States mail, postage prepaid,
addressed at the addresses set forth below:
TO LANDLORD AT: X.X. Xxxxxxx TENANT AT: Clontech Labs, Inc.
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00000 Xx Xxxx Xx. 0000 X. Xxxxxx Xxxxxx
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Xxx Xxxxx Xxxxx, XX 00000 Xxxx Xxxx, XX 00000
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Such notices shall be deemed to be received within forty-eight {48) hours from
the time of mailing, if mailed as provided for in this paragraph.
21. LANDLORD'S RIGHT TO INSPECTION.
Landlord and Landlord's agent shall have the right to enter the
Premises at reasonable times for the purpose of inspecting same, showing the
same to prospective purchasers or lenders, and making such alterations, repairs,
improvements or additions to the Premises or to the building of which the
Premises are a part as Landlord may deem necessary or desirable. Landlord may
at any time place on or about the Premises any ordinary "For Sale" signs and
Landlord may at any time during the last one hundred twenty (120) days of the
term of this Lease place on or about the Premises any ordinary "For Sale or
Lease" signs, all without rebate of rent or liability to Tenant.
22. CHOICE OF LAW.
This Lease shall be governed by the laws of the state where the
Premises are located.
23. ATTORNEY'S FEES.
If either Landlord or Tenant becomes a party to any litigation or
arbitration concerning this Lease, the Premises, or the building or other
improvements in which the Premises are located, by reason of any act or omission
of the other party or its authorized representatives, and not by reason of any
act or omission of the party that becomes a party to that litigation or any act
or omission of its authorized representatives, the party that causes the other
party to become involved in the litigation shall be liable to that party for
reasonable attorney's fees and court costs incurred by it in the litigation.
If either party commences an action against the other party arising
out of or in connection with this Lease,
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the prevailing party shall be entitled to have and recover from the losing party
reasonable attorney's fees and costs of suit.
24. LANDLORD'S LIABILITY.
The term 'Landlord" as used in this Lease shall mean only the owner or
owners at the time in question of the fee title or a Lessee's interest in a
ground lease of the Premises, and in the event of any transfer of such title or
interest, Landlord herein named (and in case of any subsequent transfers to the
then successor) shall be relieved from and after the date of such transfer of
all liability in respect to Landlord's obligations thereafter to be performed.
The obligations contained in this Lease to be performed by Landlord shall be
binding upon the Landlord's successors and assigns, only during their respective
periods of ownership.
25. WAIVERS.
No waiver by Landlord of any provision hereof shall be deemed a waiver
of any other provision hereof or of any subsequent breach by Tenant of the same
or any other provision. Landlord's consent to or approval of any act shall not
be deemed to render unnecessary the obtaining of Landlord's consent to or
approval of any subsequent act by Tenant. The acceptance of rent hereunder by
Landlord shall not be a waiver of any preceding breach by Tenant of any
provision hereof, other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of its acceptance of such rent.
26. INCORPORATION OF PRIOR AGREEMENTS.
This Lease contains all agreements of the parties with respect to any
matter mentioned herein. No prior agreement or understanding pertaining to any
such matter shall be effective. This Lease may be modified only in writing, and
signed by the parties in interest at the time of such modification
27. TIME.
Time is of the essence of this Lease.
28. SEVERABILITY.
The unenforceability, invalidity, or illegality of any provision of
this Lease shall not render the other provisions hereof unenforceable, invalid
or illegal.
29. ESTOPPEL CERTIFICATES.
Each party, within ten (10) days after notice from the other party,
shall execute and deliver to the other party a certificate stating that this
Lease is unmodified and in full force and effect, or in full force and effect as
modified, and stating the modification. The certificate shall also state the
amount of minimum monthly rent, the dates to which rent has been paid in
advance, and the amount of any security deposit or prepaid rent, if any, as well
as acknowledging that there are not, to that party's knowledge, any uncured
defaults on the part of the other party, or specifying such defaults, if any,
which are claimed. Failure to deliver such a certificate within the ten (10)
day period shall be conclusive upon the party failing to deliver the certificate
to the benefit of the party requesting the certificate that this Lease is in
full effect, that there are no uncured defaults hereunder, and has not been
modified except as may be represented by the party requesting the certificate.
30. COVENANTS AND CONDITIONS.
Each provision of this Lease performable by Tenant shall be deemed both a
covenant and a condition.
31. SINGULAR AND PLURAL.
When required by the context of this Lease, the singular shall indicate the
plural.
32. JOINT AND SEVERAL OBLIGATIONS.
"Party" shall mean Landlord and Tenant; and if more than one person or
entity is the Landlord or Tenant, the obligations imposed on that party shall be
joint and several.
33. OPTION TO EXTEND
Provided that Tenant shall not then be in default hereunder, Tenant shall
have the option to extend the term of this Lease for ______N/A_______ additional
_____N/A_______ year periods upon the same terms and conditions herein
contained, except for fixed minimum monthly rentals, upon delivery by Tenant to
Landlord of written notice of its election to exercise such option(s) at lease
ninety (90) days prior to the expiration of the original (or extended) term
hereof. The parties hereto shall have thirty (30) days after the Landlord
receives the option notice in which to agree on the minimum monthly rental
during the extended term(s). If the parties agree on the minimum monthly rent
for the extended term(s) during the period, they shall immediately execute an
amendment to this Lease stating the minimum monthly rent as set forth herein for
each extended term of this Lease. If the parties hereto are unable to agree on
the minimum monthly rent for the extended term(s) within said thirty (30) day
period, the option notice shall be of no effect and this Lease shall expire at
the end of the term. Neither party to this Lease shall have the right to have a
court or other third party set the minimum monthly rent.
7.
34. ADDENDUM.
Any addendum attached hereto and either signed or initialed by the parties
shall be deemed a part hereof and shall supersede any conflicting terms or
provisions contained in this Lease.
(1) Rent Increase: the Bay Area Consumer Price Index application to
the lease rate shall be one hundred percent (100%) and shall begin on the first
anniversary date, May 1, 1999 and every anniversary date thereafter.
(2) The Tenant at their expense will repave the parking lot behind
the buildings at 4074 and 4062 and the parking adjacent to 0000 Xxxxxx Xxx no
later than April 1, 1999.
(3) The Tenant is responsible, at their expense, for all roof repairs
and will maintain roof in good condition at all times.
(4) Tenant is responsible for all maintenance, repairs and
replacement of all units for the HAVC/AC systems at their expense.
(5) The Tenant shall provide, at all times, truck access for loading
and unloading at 000 Xxx Xxxxxxx Xx., via 4062 and 0000 Xxxxxx Xxx.
(6) First Option to renew for five (5) years at the end of the Lease,
with a six (6) month notice to review.
(7) The Lessor will allow the Lessee sub-letting privilege by waiving
the sub-let provision on the standard leasing form.
The parties hereto have executed this Lease on the date first above written.
LANDLORD: TENANT:
By: /s/ X. X. Xxxxxxx By: /s/ Xxx Xxxxxx
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By: By:
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8.
