0
XXXXXXX 00.0
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STANDARD NNN LEASE -- BUSINESS PARK MULTI-TENANT
WITNESSETH
This lease ("Lease") is entered into by and between Limar Realty Corp. #24, a
California corporation ("Landlord") and Vina Technology, Inc. a California
corporation ("Tenant"). For and in consideration of the payment of rents and the
performance of the covenants herein set forth by Tenant, Landlord does lease to
Tenant and Tenant accepts the Premises described below subject to the agreements
herein contained.
1. BASIC LEASE TERMS
a. DATE OF LEASE: February 25, 1997
b. TENANT: Vina Technology, Inc. a California
corporation
Address (of the Premises): 00000 Xxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxxx
Address (for Notices): (Please provide if other than the
Premises.)
c. LANDLORD: Limar Realty Corp. #24
1730 El Camino Real
Address (for Notices): Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
d. TENANT'S USE OF PREMISES: General Office, Research & Development
e. PREMISES AREA: 13,517 Rentable Square Feet
f. BUILDING: Building 6; 42701 - 00000 Xxxxxxxx
Xxxxx,
Xxxxxxx, Xxxxxxxxxx
g. BUSINESS PARK: Durham Business Park
h. INSURING PARTY: Landlord is the "Insuring Party" unless otherwise
stated herein.
i. TERM (inclusive): Commencement Date: Approximately
May 1, 1997
("Commencement Date") (see P. 29.).
Expiration Date: April 30, 2000
("Expiration Date")
Number of Months: Approximately
Thirty-Six (36) months
j. TENANT'S SHARE OF BUILDING: 31.71% (13,517 r.sq.ft./42,624
r.sq.ft.)
k. TENANT'S SHARE OF BUSINESS PARK: 5.95% (13,517
r.sq.ft./227,266 r.sq.ft.)
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l. TENANT'S NUMBER OF PARKING SPACES: 4 non-reserved spaces per
1,000 rentable square feet.
m. INITIAL BASE RENT: Twelve Thousand One Hundred Sixty Five and
30/100 Dollars ($12,165.30) per month
n. BASE RENT ADJUSTMENT:
1) Cost of Living. Intentionally deleted.
2) Step Increase. The step adjust____________________________
---------------- ----------
5/1/98 - 4/30/99 $12,841.15
5/1/99 -4/30/00 $13,517.00
o. TOTAL TERM BASE RENT (exclusive of any adjustments due to %13.):
$462,281.40 (Assumes exactly a 36
month term).
p. PREPAID BASE RENT: $12,165.30 in payment of the first month's
rent.
q. SECURITY DEPOSIT: $36,495.90
r. BROKER(S): CPS (Landlord) and Xxxxx & Xxxxx (Tenant)
s. EXHIBITS: Exhibits lettered "A" through "D" are attached hereto
and made a part hereof.
2. PREMISES, PARKING AND COMMON AREAS
a. Premises. The Premises as described in q1. and Exhibit A, are a
portion of a building, herein sometimes referred to as the
"Building" identified in P. 1. The Premises, the Building, the
Common Areas, the land upon which the same are located, along
with all other buildings and improvements thereon or thereunder,
are herein collectively referred to as the "Business Park" as
described in P. 1. and Exhibit B. Landlord hereby leases to
Tenant and Tenant leases from Landlord for the Term (as defined
below), at the rental, and upon all of the conditions set forth
herein, the real property referred to in the Basic Lease Terms,
P. 1. as the "Premises", including rights to the Common Areas as
hereinafter specified. Subject to any additional work Landlord
has agreed herein to do, Tenant hereby accepts the Premises in
their condition existing as of the date of the execution hereof,
subject to all applicable zoning, municipal, county and state
laws, ordinances and regulations governing and regulating the
use of the Premises, and accepts this Lease subject thereto and
to all matters disclosed thereby and by any exhibits attached
hereto. Tenant agrees with the square footage specified for the
Premises in 11. and will not hereafter challenge such
determination and
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agreement. The rental payable by Tenant pursuant to this Lease
is not subject to revision in the event of any discrepancy in
the rentable square footage for the Premises.
b. Vehicle Parking. So long as Tenant is not in default, and
subject to the Rules and Regulations attached hereto as Exhibit
C, and as established by Landlord from time to time, Tenant
shall be entitled to use the number of parking spaces set forth
in P. 1. If Tenant commits, permits or allows any of the
prohibited activities described in the Lease or the Rules and
Regulations then in effect, then Landlord shall have the right,
without notice, in addition to such other rights and remedies
that it may have, to remove or tow away the vehicle involved and
charge the cost to Tenant, which cost shall be immediately
payable upon demand by Landlord. Landlord shall xxxx five (5)
spaces for visitor parking.
c. Common Areas - Definition. The term "Common Areas" is defined as
all areas and facilities outside the Premises and within the
exterior boundary line of the Business Park that are provided
and designated by the Landlord from time to time for the general
non-exclusive use of Landlord, Tenant and of other tenants of
the Business Park and their respective employees, suppliers,
shippers, customers and invitees, including but not limited to
common entrances, lobbies, corridors, stairways and stairwells,
public restrooms, elevators, parking areas to the extent not
otherwise prohibited by this Lease, loading and unloading areas,
trash areas, roadways, sidewalks, walkways, parkways, ramps,
driveways, landscaped areas and decorative walls.
d. Common Areas - Rules and Regulations. Tenant agrees to abide by
and conform to the Rules and Regulations attached hereto as
Exhibit C with respect to the Business Park and Common Areas,
and to cause its employees, suppliers, shippers, customers and
invitees to so abide and conform. Landlord, or such other
person(s) as Landlord may appoint, shall have the exclusive
control and management of the Common Areas and shall have the
right, from time to time, to modify, amend and enforce said
rules and regulations. Landlord shall not be responsible to
Tenant for the non-compliance with said rules and regulations by
other tenants, their agents, employees and invitees.
e. Building and Common Areas - Changes. Landlord shall have the
right, in Landlord's sole discretion, from time to time:
1) To make changes to the Building interior and exterior
and Common Areas, including, without limitation, changes
in the location, size, shape, number and appearance
thereof, including but not limited to the lobbies,
windows, stairways, air shafts, elevators, restrooms,
driveways, entrances, parking spaces, parking areas,
loading and unloading areas, ingress, egress, direction
of traffic, decorative walls, landscaped areas and
walkways;
2) To close temporarily any of the Common Areas for
maintenance purposes so long as reasonable access to the
Premises remains available;
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3) To designate other land and improvements outside the
boundaries of the Business Park to be a part of the
Common Areas, provided that such other land and
improvements have a reasonable and functional
relationship to the Business Park;
4) To add additional buildings and improvements to the
Common Areas;
5) To use the Common Areas while engaged in making
additional improvements; repairs or alterations to the
Business Park or any portion thereof; and
6) To do and perform such other acts and make such other
changes in, to or with respect to the Common Areas and
Business Park as Landlord may, in the exercise of sound
business judgment, deem to be appropriate.
f. Acceptance; Quiet Enjoyment. Landlord represents that it is the
fee simple owner of the Premises and has full right and
authority to make this Lease. Landlord hereby leases the
Premises to Tenant and Tenant hereby accepts the same from
Landlord, in accordance with the provisions of this Lease.
Landlord covenants that Tenant shall have peaceful and quiet
enjoyment of the Premises during the Term (as defined below) of
this Lease.
3. TERM
a. Term. The term ("Term") of this Lease is for the period that
commences at 12:01 a.m. on the Commencement Date and expires at
11:59 p.m. on the Expiration Date. If Landlord, for any reason,
cannot deliver possession of the Premises to Tenant on or before
the Commencement Date, this Lease void or voidable, nor shall
Landlord be liable to Tenant for any loss or damage resulting
from such that event, however, there shall be an abatement of
Base Rent (as defined below) covering between the Commencement
Date and the date when Landlord delivers possession to Tenant
terms and conditions of this Lease shall remain in full force
and effect, provided, however, that cannot deliver possession of
the Premises to Tenant, this Lease shall be void. If a delay in
possession is caused by Tenant's failure to perform any
obligation in accordance with this Lease, the commence as of the
Commencement Date, and there shall be no reduction of Base Rent
b Commencement Date and the time Tenant takes possession.
b. Possession. If, with the written consent of Landlord, Tenant
totally or partially occupies the P to the Commencement Date,
the obligation to pay Base Rent shall be abated for the period
of possession. Tenant shall not be obligated to pay Base Rent
until such time as the improvement be provided by Landlord have
been substantially completed. Tenant shall, however, in such an
obligated to perform any and all other obligations imposed on
Tenant pursuant to this Leas Commencement Date. No delay in
substantial completion of the improvements to be con Landlord
shall affect the Commencement Date or Expiration Date.
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4. RENT
a. Base Rent. Tenant shall pay Landlord in lawful money of the
United States, without notice, demand or deduction, rent in the
amount(s) set forth in P. 1. which shall be payable in advance
on the first and every calendar month ("Base Rent") provided,
however, the first month's Base Rent is due a upon execution of
this Lease. Unless otherwise specified in writing by Landlord,
all installments of Base Rent shall be payable to Limar Realty
Corp. #24, Department #44292, X.X. Xxx 00000, Xxx Xxxxxxxxx
00000-0000. Base Rent for any partial month at the beginning or
end of this Lease will be accordance with the number of days in
the subject month. If the Term of this Lease contains abatement
period, Tenant hereby agrees that if Tenant breaches the Lease
and/or abandons the Premises before the end of the Term, or if
Tenant's right to possession is terminated by Landlord because
breach of the Lease, Landlord may, at its option, (1) void the
rental abatement period; or (2) re Tenant, in addition to any
damages due Landlord under the terms and conditions of the
Lease, prorated for the entirety of the rental abatement period
at a rental rate equivalent to two (2) time Rent at such time of
proration.
For purposes of Section 467 of the Internal Revenue Code, the
parties to this Lease hereby agree the stated Base Rent provided
herein to the periods which correspond to the actual Base Rent
payments as provided under the terms and conditions of this
Agreement.
b. Step Increase. The Base Rent shall be increased periodically to
the amounts and at the times set forth P. 1.
c. Rent Without Offset and Late Charge. All Rent shall be paid
without prior demand or notice any deduction of offset
whatsoever. All Rent shall be paid in lawful currency of the
United States of America. Tenant acknowledges that late payment
by Tenant to Landlord of any Rent will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of such
cost being extremely difficult and impracticable to ascertain.
Such costs include, without limitation, processing and
accounting charges and late c may be imposed on Landlord by the
terms of any encumbrance or note secured by the Premises.
Therefore, if any Rent is not received by Landlord within seven
(7) days of its due date, Tenant shall pay to Landlord a late
charge equal to ten percent (10%) of such overdue payment.
Landlord and Tenant hereby agree that such late charge
represents a fair and reasonable estimate of the costs that
Landlord will incur by reason of any such late payment and that
the late charge is in addition to any and all remedies available
to the Landlord and that the assessment and/or collection of the
late charge shall not be deemed a waiver of any other default.
Additionally, all such delinquent Rental other sums, plus this
late charge, shall bear interest from the due date thereof at
the lesser of ten percent (10%) per annum or the maximum legal
interest rate permitted by law. Any payments of any kind
returned for insufficient funds will be subject to an additional
handling charge of $25.00, and
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thereafter, Landlord may require Tenant to pay all future
payments of Rent or other sums due by cashier's check.
d. Rent. The term "Rent" as used in this Lease shall refer to Base
Rent, prepaid rent, Real Property Taxes, Operating Expenses,
repairs and maintenance costs, insurance, utilities, late
charges and other similar charges payable by Tenant pursuant to
this Lease either directly to Landlord or otherwise.
5. SECURITY DEPOSIT. Upon execution of this Lease, Tenant shall deposit a
security deposit ("Security Deposit") in the amount set forth in P. l.
with Landlord. If Tenant is in default, Landlord can use the Security
Deposit or any portion of it to cure the default or to compensate
Landlord for any damages sustained by Landlord resulting from Tenant's
default. Upon demand, Tenant shall immediately pay to Landlord a sum
equal to the portion of the Security Deposit expended or applied by
Landlord to restore the Security Deposit to its full amount including
any interest which would have been earned on the portion of the Security
Deposit expended or applied by the Landlord, from the date of such
expense or application. In no event will Tenant have the right to apply
any part of the Security Deposit to any Rent due under this Lease. If
Tenant is not in default at the expiration or termination of this Lease,
Landlord shall return the Security Deposit to Tenant within thirty (30)
days of lease expiration or termination. Landlord's obligations with
respect to the Security Deposit are those of a debtor and not a trustee,
and Landlord can commingle the Security Deposit with Landlord's general
funds. Landlord shall not be required to pay Tenant interest on the
Security Deposit. Landlord shall be entitled to immediately endorse and
cash Tenant's Security Deposit; however, such endorsement and cashing
shall not constitute Landlord's acceptance of this Lease. In the event
Landlord does not accept this Lease, Landlord shall return said Security
Deposit. Each time the Base Rent is increased, Tenant shall deposit
additional funds with Landlord sufficient to increase the Security
Deposit to an amount which bears the same relationship to the Base Rent
as the initial Security Deposit bore to the initial Base Rent.
6. USE OF PREMISES
a. Tenant's Use. Tenant shall use the Premises solely for the
purposes stated in P. 1. and for no other purposes without
obtaining the prior written consent of Landlord. Tenant
acknowledges that neither Landlord nor any agent of Landlord has
made any representation or warranty with respect to the Premises
or wit the suitability of the Premises to the conduct of
Tenant's business, nor has Landlord agreed to undertake any
modification, alteration or improvement to the Premises, except
as provided in writing in this Lease. Tenant shall promptly
comply with all laws, statutes, ordinances, orders and
governmental regulations affecting the Premises. Tenant shall
not do or permit anything to be done in or about the Premises or
bring or keep anything in the Premises that will in any way
increase the premiums paid by Landlord on its insurance related
to the Premises. Tenant will not perform any act or carry on any
practices that may injure the Premises. Tenant shall not use the
Premises for sleeping, washing clothes, cooking or the
preparation, manufacture or mixing of anything that emits any
objectionable odor, noises, vibrations or lights onto such other
tenants. If, in Landlord's reasonable
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judgment, sound insulation is required to muffle noise produced
by Tenant on the Premises, Tenant at its own cost shall provide
all necessary insulation. Tenant shall not do anything on the
Premises which will overload any existing parking or service to
the Premises. Pets and/or animals of any type shall not be kept
on or about the Premises.
b. CC&R's. Tenant agrees that this Lease is subject and subordinate
to the Covenants, Conditions and Restrictions, a copy of which
is attached hereto as Exhibit D, as they may be amended from
time to time ("CC&R's"), and further agrees that the CC&R's are
an integral part of this Lease. Throughout the term or any
extension thereof, notwithstanding any other provision hereof,
Tenant shall faithfully and timely assume and perform all
obligations of Landlord and/or Tenant under the CC&R's and any
modifications or amendments thereto, including the payment of
any periodic or special dues or assessments Premises. Such dues
and assessments shall be included within the definition of
Operating Expenses pursuant to P. 13.b.11), and Tenant shall pay
such amounts as further set forth in P. 13. Tenant shall hold
Landlord, its subsidiaries, directors, officers, agents and
employees harmless and indemnify Landlord, its subsidiaries,
directors, officers, agents and employees against any loss,
expense and damage ( attorneys' fees and costs, arising out of
the failure of Tenant to perform or comply with the CC&R's.
c. Rules and Regulations. Tenant shall comply with and use the
Premises in accordance with the Regulations attached hereto as
Exhibit C and to any reasonable modifications to such Rules and
as Landlord may adopt from time to time.
7. EMISSIONS; STORAGE, USE AND DISPOSAL OF WASTE
a. Emissions. Tenant shall not:
1) Permit any vehicle on the Premises or in the Commons
Areas to emit exhaust which is in violation of any
governmental law, rule, regulation or requirement;
2) Discharge, emit or permit to be discharged or emitted,
any liquid, solid or gaseous matter, or any combination
thereof, into the atmosphere or on, into or under the
Premises, any building or other improvements of which
the Premises are a part, or the ground or any body of
water which matter, as reasonably determined by Landlord
or any governmental entity, does or may pollute or
contaminate the same, or is, or may become, radioactive
or does, or may, adversely affect (a) the health or
safety of persons, wherever located, whether on the
Premises or anywhere else, (b) the condition, use or
enjoyment of the Premises or any other real or personal
property, whether on the Premises or anywhere else, or
(c) the Premises or any of the improvements thereto
including buildings, foundations, pipes, utility lines,
landscaping or parking areas;
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3) Produce, or permit to be produced, any intense glare,
light or heat;
4) Create, or permit to be created, any sound pressure
level which will interfere with the quiet enjoyment of
any real property outside the Premises, or which will
create a nuisance or violate any governmental law, rule,
regulation or requirement;
5) Create, or permit to be created, any vibration that is
discernible outside the Premises;
6) Transmit, receive or permit to be transmitted or
received, any electromagnetic, microwave or other
radiation which is or may be harmful or hazardous to any
person or property in, or about the Premises, or
anywhere else.
b. Storage and Use.
1) Storage. Subject to the uses permitted and prohibited to
Tenant under this Lease, Tenant shall store in
appropriate leak proof containers all solid, liquid or
gaseous matter, or any combination thereof, which
matter, if discharged or emitted into the atmosphere,
the ground or any body of water, does or may (a) pollute
or contaminate the same, or (b) adversely affect the (i)
health or safety of persons, whether on the Premises or
anywhere else, (ii) condition, use or enjoyment of the
Premises or any real or personal property, whether on
the Premises or anywhere else, or (iii) Premises.
2) Use. In addition, without Landlord's prior written
consent, Tenant shall not use, store or permit to remain
on or about the Premises any solid, liquid or gaseous
matter which is, or may become radioactive. If Landlord
does give its consent, Tenant shall store the materials
in such a manner that no radioactivity will be
detectable outside a designated storage area and Tenant
shall use the materials in such a manner that (a) no
real or personal property outside the designated storage
area shall become contaminated thereby and (b) there are
and shall be no adverse effects on the (i) health or
safety of persons, whether on the Premises or anywhere
else, (ii) condition, use or enjoyment of the Premises
or any real or personal property thereon or therein, or
(iii) Premises or any of the improvements thereto or
thereon.
3) Hazardous Materials. Subject to the uses permitted and
prohibited to Tenant under this Lease, Tenant shall
store, use, employ, transport and otherwise deal with
all Hazardous Materials (as defined below) employed on
or about the Premises in accordance with all federal,
state, or local law, ordinances, rules or regulations
applicable to Hazardous Materials in connection with or
respect to the Premises.
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c. Disposal of Waste.
1) Refuse Disposal. Tenant shall not keep any trash,
garbage, waste or other refuse on the Premises except in
sanitary containers and shall regularly and frequently
remove same from the Premises. Tenant shall keep all
incinerators, containers or other equipment used for
storage or disposal of such materials in a clean and
sanitary condition.
2) Sewage Disposal. Tenant shall properly dispose of all
sanitary sewage and shall not use the sewage disposal
system (a) for the disposal of anything except sanitary
sewage or (b) amounts in excess of the lesser of: (i)
that reasonably contemplated by the uses permitted under
this Lease or (ii) that permitted by any governmental
entity. Tenant shall keep the sewage disposal system
free of all obstructions and in good operating
condition.
3) Disposal of Other Waste. Tenant shall properly dispose
of all other waste or other matter delivered to, stored
upon, located upon or within, used on, or removed from,
the Premises in such a manner that it does not, and will
not, adversely affect the (a) health or safety of
persons, wherever located, whether on the Premises or
elsewhere, (b) condition, use or enjoyment of the
Premises or any other real or personal property,
wherever located, whether on the Premises or anywhere
else, or (c) Premises or any of the improvements thereto
or thereon including buildings, foundations, pipes,
utility lines, landscaping or parking areas.
d. Information. Tenant shall provide Landlord with any and all
information regarding Hazardous Materials in the Premises,
including copies of all filings and reports to governmental
entities at the time they are originated during the Term hereof,
and any other information requested by Landlord. In the event of
any accident, spill or other incident involving Hazardous
Materials, Tenant shall immediately report the same to Landlord
and supply Landlord with all information and reports with
respect to the same. All information described herein shall be
provided to Landlord regardless of any claim by Tenant that it
is confidential or privileged.
e. Compliance with Law. Notwithstanding any other provision in this
Lease to the contrary, Tenant shall comply with all laws,
statutes, ordinances, regulations, rules and other governmental
requirements in complying with its obligations under this Lease,
and in particular, relating to the storage, use and disposal of
Hazardous Materials.
f. Indemnity. Tenant hereby agrees to indemnify, defend and hold
Landlord, its agents, employees, lenders, directors,
representatives, successors and assigns harmless from and
against any and all actions, causes of action, losses, damages,
costs, claims, expenses, penalties, obligations or liabilities
of any kind whatsoever (including but not limited to reasonable
attorneys' fees) arising out of or relating
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to any Hazardous Materials employed, used, transported across,
or otherwise dealt with by Tenant (or invitees, or persons or
entities under the control of Tenant) in connection with or with
respect to the Premises and the Business Park. Notwithstanding
any other provision of this Lease, the indemnity obligation of
Tenant pursuant to this P. 17.f. shall survive the termination
of this Lease and shall relate to any occurrence as described in
this P. 7. occurring in connection with this Lease. For purposes
of this Lease the term "Hazardous Materials" shall mean any
hazardous, toxic or dangerous waste, substance or material,
pollutant or contaminant, as defined for purposes of the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (42 U.S.C. Sections 9601 et seq.), as amended, or
the Resource Conservation and Recovery Act (42 U.S.C. Section
9601 et seq.), as amended, or any other federal, state, or local
law, ordinance, rule or regulation applicable to the Premises,
or any substance which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic, or
otherwise hazardous, or any substance which contains gasoline,
diesel fuel or other petroleum hydrocarbons, polychlorinated
biphenyis (PCB's), or radon gas, urea formaldehyde, asbestos or
lead.
8. SIGNS. Tenant shall not place any sign upon the Premises or the Business
Park, except that Tenant may, with Landlord's prior written consent,
install (but not on the roof such signs as are reasonably required to
advertise Tenant's own business provided such signs are in compliance
with all applicable governmental requirements and the CC&R's. The
installation of any sign on the Premises by or for Tenant shall be
subject to the provisions of P. 12. (Repairs and Maintenance). Landlord
reserves all rights to the use of the roof and the right to install, and
all revenues from the installation of, such advertising signs on the
Premises, including the roof, as do not unreasonably interfere with the
conduct of Tenant's business.
9. PERSONAL PROPERTY TAXES. Tenant shall pay prior to delinquency all taxes
assessed against and levied upon Tenant owned leasehold improvements,
trade fixtures, furnishings, equipment and all personal property of
Tenant contained in the Premises or elsewhere. When possible, Tenant
shall cause its leasehold improvements, trade fixtures, furnishings,
equipment and all other personal property to be assessed and billed
separately from the real property of Landlord. If any of Tenant's said
personal property shall be assessed with Landlord's real property,
Tenant shall pay Landlord the taxes attributable to Tenant within ten
(10) days after receipt of a written statement setting forth the taxes
applicable to Tenant's property.
10. REAL PROPERTY TAXES
a. Payment of Taxes. Landlord shall pay the Building's Real
Property Taxes, as defined in P. 10.c., during the Term of this
Lease. Subject to 10.b., Tenant shall promptly reimburse
Landlord according to P. 13. for Tenant's Share of Business Park
of such Real Property Taxes paid by Landlord.
b. Advance Payment. In order to ensure payment when due and before
delinquency of any or all Real Property Taxes, Landlord reserves
the right, at Landlord's
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option, to estimate the current Real Property Taxes applicable
to the Premises, and to require each installment of the Real
Property Taxes to be paid in advance to Landlord by Tenant,
either: (i) in a lump sum amount, at least twenty (20) days
prior to the applicable delinquency date, or (ii) monthly in
advance with the payment of the Base Rent. If Landlord elects to
require payment monthly in advance, the monthly payment shall be
that equal monthly amount which, over the number of months
remaining before the month in which the applicable tax
installment would become delinquent, would provide a fund large
enough to fully discharge before delinquency the estimated
installment of Real Property Taxes to be paid. When the actual
amount of the applicable tax xxxx is known, Landlord may, but is
not required to, adjust the amount of such equal monthly advance
payment so as to provide the funds needed to pay the applicable
Real Property Taxes before delinquency. If the amounts paid to
Landlord by Tenant under the provisions of this P. 10. are
insufficient to discharge the obligations of Tenant to pay such
Real Property Taxes as the same become due, Tenant shall pay to
Landlord, upon Landlord's demand, such additional sums as are
necessary to pay such obligations. All moneys paid to Landlord
under this P. 10. may be intermingled with other moneys of
Landlord and shall not bear interest. In the event of a breach
by Tenant in the performance of the obligations of Tenant under
this Lease, then any balance of funds paid to Landlord under the
provisions of this P. 10. may, at the option of Landlord, be
treated as an additional Security Deposit under %5.
c. Definition of "Real Property Taxes". As used herein, the term
"Real Property Taxes" shall include any form of real estate tax
or assessment, general, special, ordinary or extraordinary, and
any license fee, commercial rental tax, improvement bond or
bonds, levy or tax or other fee, charge, or excise which may be
imposed as a substitute for any of the foregoing (other than
inheritance, personal income or estate taxes) imposed upon the
Business Park by any authority having the direct or indirect
power to tax, including any city, county, state or federal
government, or any school, agricultural, sanitary, fire, street,
drainage or other improvement district thereof, levied against
any legal or equitable interest of Landlord in the Business
Park, Landlord's right to rent or other income therefrom, and/or
Landlord's business of leasing the Business Park. The term "Real
Property Taxes" shall also include any tax, fee, levy,
assessment or charge, or any increase therein, imposed by reason
of events occurring, or changes in applicable law taking effect,
during the Term of this Lease, including but not limited to a
change in the ownership of the Business Park or in the
improvements thereon, the execution of this Lease, or any
modification, amendment or transfer thereof, and whether or not
contemplated by the parties hereto.
11. UTILITIES. Tenant shall pay for all water, gas, heat, light, power,
telephone, trash disposal and other utilities and services supplied to
the Premises, together with any taxes thereon. If any such services are
not separately metered to Tenant, Tenant shall pay a reasonable
proportion, to be determined by Landlord, of all charges jointly metered
with other premises.
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12. REPAIRS AND MAINTENANCE
a. Landlord's Obligations. Landlord shall keep the Business Park,
including the foundation, exterior walls, roof, and common area
of the Building, and the equipment whether used exclusively for
the Premises or in common with other premises, in good condition
and repair subject to reimbursement by Tenant in accordance with
113. There shall be no abatement of Rent or liability to Tenant
on account of any injury or interference with Tenant's business
with respect to any improvements, alterations or repairs made by
Landlord to the Business Park or any part thereof.
b. Tenant's Obligations.
1) General. Tenant shall, at Tenant's sole cost and expense
and at all times, contract for janitorial services and
supplies, keep the Premises in good order, condition and
repair, including, without limiting the generality of
the foregoing, all equipment or facilities serving the
Premises (excepting only those portions of the Building
to be maintained by Landlord, as provided in P. 13.b.
below), such as plumbing, electrical, lighting
facilities, boilers, fired or unfired pressure vessels,
fixtures, interior walls, ceilings, floors, windows,
window frames, interior and exterior doors and door
frames, plate glass, and skylights. Tenant shall not
cause or permit any Hazardous Material to be spilled or
released in, on, under or about the Premises (including
through the plumbing or sanitary sewer system) and shall
promptly, at Tenant's expense: take all investigatory
and/or remedial action reasonably recommended, whether
or not formally ordered or required, for the cleanup of
any contamination of, and for the maintenance, security
and/or monitoring of the Premises, the elements
surrounding same, or neighboring properties, that was
caused or materially contributed to by Tenant, or
pertaining to or involving any Hazardous Materials
and/or storage tank brought onto the Premises by or for
Tenant or under its control. Tenant, in keeping the
Premises in good order, condition and repair, shall
exercise and perform good maintenance practices.
Tenant's obligations shall include restorations,
replacements or renewals when necessary to keep the
Premises and all improvements thereon or a part thereof
in good order, condition and state of repair.
2) Contracts. Tenant shall, at Tenant's sole cost and
expense, procure and maintain contracts, with copies to
Landlord, in customary form and substance for, and with
contractors specializing and experienced in, the
inspection, maintenance and service of heating, air
conditioning and ventilation equipment, if any,
servicing the Premises. Tenant shall keep a detailed
preventative maintenance schedule and log showing the
frequency of maintenance on all HVAC, mechanical,
electrical and other systems servicing the Premises and
provide Landlord with a copy of same quarterly.
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3) As-is Condition. The parties affirm that Landlord, its
subsidiaries, officers, directors, agents and/or
employees have made no representations to Tenant
respecting the condition of the Premises except as
specifically stated herein.
4) Americans with Disabilities Act. Tenant acknowledges
that as of the Commencement Date, the Premises may not
comply with the Americans with Disabilities Act of 1990
("ADA"), and that Landlord shall have no obligation with
respect to any such failure of the Premises to so
comply. Tenant shall, at its cost, at any time during
the Term as required by any applicable governmental
agency having jurisdiction over the Premises, make such
modifications and alterations to the Premises as may be
required in order to fully comply with the provisions of
the ADA, as from time to time amended, and any and all
regulations issued pursuant to or in connection with the
ADA in such a manner as to satisfy the applicable
governmental agency or agencies requiring remediation.
Tenant shall at least thirty (30) days prior to the
commencement of any construction in connection with
satisfaction of the ADA, give written notice to Landlord
of its intended commencement of construction together
with sufficient details so as to reasonably disclose to
Landlord the nature of the proposed construction, copies
of any notices received by Tenant from applicable
governmental agencies in connection with the ADA and
such other documents or information as Landlord may
reasonably request. In any event, notwithstanding
anything to the contrary contained in this Lease, prior
to the termination of the Term, Tenant shall, at its
cost, make such modifications and alterations to the
Premises as may be required to comply fully with the ADA
as from time to time amended and any and all regulations
issued thereunder. Tenant shall give the Landlord thirty
(30) days prior written notice as described above in
connection with any such construction. Any and all
construction required to so comply with the ADA shall be
completed by Tenant prior to the expiration of the Term.
c. Compliance with Governmental Regulations. Tenant shall, at its
own cost and expense, promptly and properly observe and comply
with all present and future orders, regulations, directions,
rules, laws, ordinances, and requirements of all governmental
authorities (including but not limited to state, municipal,
county and federal governments and their departments, bureaus,
boards and officials) arising from the use or occupancy of, or
applicable to, the Premises or privileges appurtenant to or in
connection with the enjoyment of the Premises. Tenant shall also
comply with all such rules, laws, ordinances and requirements at
the time Tenant makes any alteration, addition or change to the
Premises.
d. Miscellaneous.
1) Landlord and Tenant shall each do all acts required to
comply with all applicable laws, ordinances and rules of
any public authority relating to their respective
maintenance obligations as set forth herein.
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2) Tenant expressly waives the benefits of any statute now
or hereafter in effect which would otherwise afford the
Tenant the right to make repairs at Landlord's expense
or to terminate this Lease because of Landlord's failure
to keep the Premises and the Business Park in good
order, condition and repair. Specifically, Tenant waives
the provisions of California Civil Code Sections 1941
and 1942 with respect to Landlord's obligations for
Tenant tenantability of the Premises and Tenant's right
to make repairs and deduct the expenses of such repairs
from Rent.
3) Tenant shall not place a load upon any floor of the
Premises which exceeds the load per square foot which
such floor was designed to carry, as determined by
Landlord or Landlord's structural engineer. The cost of
any such determination made by Landlord's structural
engineer shall be paid for by Tenant upon demand.
4) Except as otherwise expressly provided in this Lease,
Landlord shall have no liability to Tenant nor shall
Tenant's obligations under this Lease be reduced or
abated in any manner whatsoever by reason of any
inconvenience, annoyance, interruption or injury to
business arising from Landlord making any repairs or
changes which Landlord is required to make or is
permitted to make by this Lease or by any tenant's lease
or is required by law to make in or to any portion of
the Premises. Landlord shall nevertheless use reasonable
efforts to minimize any interference with Tenant's
business in the Premises.
5) Tenant shall give Landlord prompt notice of any damage
to or defective condition in any part or appurtenance of
the Premises' mechanical, electrical, plumbing, HVAC or
other systems serving, located in or passing through the
Premises. Upon request by Landlord, Tenant shall provide
Landlord with evidence reasonably acceptable to Landlord
of service contracts on such systems.
6) Upon the expiration or early termination of this Lease,
Tenant shall return the Premises to Landlord clean and
in the same condition as on the date Tenant took
possession, except for normal wear and tear and the
provisions of P. 14 hereof. Any damage to the Premises,
including any structural damage, resulting from Tenant's
use or from the removal of Tenant's fixtures,
furnishings and equipment shall be repaired by Tenant at
Tenant's expense.
7) Landlord may, at Landlord's option, choose to perform
any of the Tenant's obligations in this P. 12. The cost
of any such Tenant's obligations so performed by
Landlord shall be at Tenant's sole cost and expense.
Tenant shall reimburse Landlord for any such costs
incurred by Landlord in the performance of such Tenant's
obligations within ten (10) days of receipt of a billing
from Landlord.
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8) If a major portion of the HVAC system needs to be replaced
or if the cost to comply with governmental regulations
applies to the entire Building or entire Business Park and
would, in Landlord's judgment, customarily be deemed a
capital expenditure, Landlord shall perform such work and
amortize the cost thereof (with 10% annual interest) over
its useful life and Tenant shall pay the amortization
payment as additional Rent for the balance of the lease
term.
13. OPERATING EXPENSES
a. Payment by Tenant. During the Term of this Lease, Tenant shall
pay to Landlord, as additional Rent, on a monthly basis Tenant's
Share of the Operating Expenses. If Operating Expenses are
accounted for on a building by building basis, the Tenant's
Share of Building shall apply. If Operating Expenses are
accounted for on an overall Business Park basis, then Tenant's
Share of Business Park shall apply.
b. Operating Expenses. The term "Operating Expenses" shall mean all
expenses, costs and disbursements (not specifically excluded
from the definition of Operating Expenses below) of every kind
and nature which Landlord shall pay or become obligated to pay
because of or in connection with the ownership, maintenance,
repair and operation of the Business Park or any portion thereof
(including all Buildings and Common Areas of the Business Park).
Landlord shall make all allocations in a reasonable and
customary manner in accordance with generally accepted
accounting principles. Operating Expenses shall include, but not
be limited to, the following:
1) Wages and salaries of all employees engaged in the
operation, maintenance and security of the Business
Park, including taxes, insurance and benefits relating
thereto; and the rental cost and overhead of any office
and storage space used to provide such services.
2) All supplies and materials used in the operation, repair
or maintenance of the Business Park.
3) Cost of all utilities, including surcharges, for the
Business Park, including the cost of water, power and
lighting which are not separately billed to and paid for
by Tenant.
4) Cost of all maintenance and service agreements for the
Business Park and the equipment thereon, including but
not limited to, security services, exterior window
cleaning, janitorial service, engineers, gardeners and
trash removal services.
5) All Insurance Costs, as such term is defined in P. 16.
6) Cost of repairs and general maintenance (excluding
repairs and general maintenance paid by proceeds of
insurance or by Tenant or other third
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parties, and alterations attributable solely to the
other tenants of the Business Park).
7) A reasonable management fee for the property management
of the Business Park.
8) The costs of any additional services not provided to the
Business Park at the Commencement Date but thereafter
provided by Landlord in its management of the Business
Park.
9) The cost of any capital improvements to the Business
Park or any part thereof which are made during the Term
hereof.
10) Real Property Taxes, as that term is defined. in P. 10.
11) Assessments, dues and other amounts payable pursuant to
the CC&R's described in P. 6.b.
12) All costs to maintain, repair and replace the heating,
ventilation and air conditioning ("HVAC") systems
serving the Building and/or the Premises, including the
cost of maintenance contracts.
c. Operating Expenses shall not include:
1) Costs paid for directly by Tenant;
2) Principal and interest payments on loans secured by
deeds of trust recorded against the Business Park or the
Building of which the Business Park is a part;
3) Real estate sales or leasing brokerage commissions; or
4) Executive salaries of off-site personnel employed by
Landlord except for the charge (or pro rata share) of
the property manager of the Business Park.
d. Extraordinary Services. Tenant shall pay within ten (10) days of
receipt of an invoice from Landlord the cost of additional or
extraordinary services provided to Tenant and not paid or
payable by Tenant pursuant to other provisions of this Lease.
e. Impound. Landlord reserves the right, at Landlord's option, to
estimate the annual cost of Operating Expenses performed by
Landlord ("Projected Operating Expenses") and to require same to
be paid in advance. Tenant shall pay to Landlord, monthly in
advance as additional Rent, one-twelfth (1/12) of the Projected
Operating Expenses.
f. Adjustment.
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1) Accounting. Within ninety (90) days (or as soon
thereafter as possible) after the close of each calendar
year or portion thereof of occupancy, Landlord shall
provide Tenant a statement of such year's actual
Operating Expenses showing the actual Operating Expenses
compared to the Projected Operating Expenses. If the
actual Operating Expenses are more than the Projected
Operating Expenses then Tenant shall pay Landlord,
within ten (10) days of receipt of a xxxx therefor, the
difference. If the actual Operating Expenses are less
than the Projected Operating Expenses, then Tenant shall
receive a credit against future Operating Expenses
payments equal to the difference; provided, that in the
case of an overpayment for the final lease year of the
Term, Landlord shall credit the difference against any
sums due from Tenant to Landlord in accordance with the
terms of this Lease; and if no sums are due and unpaid,
shall promptly refund the net amount to Tenant.
2) Proration. Tenant's liability to pay Operating Expenses
shall be prorated on the basis of a 365 (or 366, as the
case may be) day year to account for any fractional
portion of a year included at the commencement or
expiration of the Term of this Lease.
3) Survival. Landlord and Tenant's obligations to pay for
or credit any increase or decrease in payments pursuant
to this P. 13. shall survive this Lease.
g. Failure to Pay. Failure of Tenant to pay any of the charges
required to be paid under this P. 13. shall constitute a
material default and breach of this Lease and Landlord's
remedies shall be as specified in P. 21.
h. Operating Expense Audit. Within twelve (12) months of receipt of
any billing statement ("Statement"), and upon thirty (30) days
prior written notice, Tenant shall have the right to examine, to
copy and to have an audit conducted of all books and records of
Landlord at Landlord's office pertaining to the Operating
Expenses for the period covered by the Statement. If Tenant
disputes the inclusion or amount of any item or items in any
such Statement, the Parties will use good faith efforts to
settle such dispute within thirty (30) days after notice of the
dispute. In the event that such dispute is not settled within
this time period, the dispute shall be resolved by a firm of
real estate audit professionals ("Audit Professionals") mutually
acceptable to Landlord and Tenant. Audit Professionals shall
mean for the purposes of this P. 13.h. an independent firm of
Certified Public Accountants with experience in real estate
expense reviews. If Landlord and Tenant cannot agree on Audit
Professionals within fifteen (15) days, then Landlord and Tenant
shall each, within fifteen (15) days, select one (1) independent
firm of Audit Professionals, and such two (2) Audit
Professionals shall together select a third firm of Audit
Professionals, which third firm shall be the Audit Professionals
who shall resolve the dispute. The Audit Professionals shall be
entitled to review all records relating to the disputed items.
The determination of the Audit Professionals shall be final and
binding upon both
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Landlord and Tenant. The expenses of the Audit Professionals
shall be borne by Tenant unless said audit discloses an overall
overstatement of gross Operating Expenses of five percent (5%)
or more for the period being audited, in which case Landlord
shall pay the audit expenses. If the Audit Professionals
determine that Tenant has made an over-payment or under-payment,
then the payment procedures in P. 13 f.1) shall be followed.
14. ALTERATIONS. Tenant shall not make any alterations to the Premises or
the Business Park without Landlord's prior written consent. If Landlord
gives its consent to such alterations, Landlord may post notices in
accordance with the laws of the state in which the Premises are located.
All alterations made by Tenant, whether or not subject to the approval
of Landlord, shall be performed by Tenant and its contractors in a first
class workmanlike manner and permits and inspections shall be obtained
from all required governmental entities. Any alterations made shall
remain on and be surrendered with the Premises upon expiration or
termination of this Lease, except that Landlord may, within thirty (30)
days before or thirty (30) days after expiration of the Term, elect to
require Tenant to remove some or all of the alterations which Tenant may
have made to the Premises. If Landlord so elects, Tenant shall at its
own cost restore the Premises to the condition designated by Landlord in
its election, before the last day of the Term or within thirty (30) days
after notice of its election is given, whichever is later. Should
Landlord consent in writing to Tenant's alteration of the Premises,
Tenant shall contract with a contractor approved by Landlord for the
construction of such alterations, shall secure all appropriate
governmental approvals and permits, and shall complete such alterations
with due diligence in compliance with plans and specifications approved
by Landlord. Tenant shall pay all costs for such construction and shall
keep the Premises free and clear of all mechanics' liens which may
result from construction by Tenant. Provided, however, Landlord hereby
consents to the Tenant's Improvements outlined on Exhibit Al hereto and
will not require Tenant to remove these improvements at the expiration
or termination of the Lease. With respect to future alterations or
improvements, Tenant may request Landlord to determine, as part of their
approval process, whether or not they will require said alteration or
improvement to be removed at the expiration or termination of the Lease.
15. RELEASE AND INDEMNITY. As material consideration to Landlord, Tenant
agrees that Landlord shall not be liable to Tenant for any damage to
Tenant or Tenant's property from any cause, except for damages resulting
from Landlord's gross negligence or willful misconduct, and Tenant
waives all claims against Landlord for damage to persons or property
arising for any reason, except for damage resulting directly from
Landlord's breach of its express obligations under this Lease which
Landlord has not cured within a reasonable time after written notice of
such breach from Tenant. Tenant shall indemnify and hold Landlord
harmless from all damages including attorneys' fees and costs arising
out of any damage to any per-son or property occurring in, on or about
the Premises or Tenant's use of the Premises or Tenant's breach of any
term of this Lease.
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16. INSURANCE
a. Payment For Insurance. Regardless of whether the Landlord or
Tenant is the Insuring Party, Tenant shall pay for all insurance
required under this 116. ("Insurance Costs"). Premiums for
policy periods commencing prior to or extending beyond the Lease
Term shall be prorated to correspond to the Lease Term. Payment
shall be made by Tenant to Landlord within ten (10) days
following receipt of an invoice for any amount due.
b. Liability Insurance.
1) Carried by Tenant. Whether or not Tenant is the Insuring
Party, Tenant shall obtain and keep in force during the
Term of this Lease a commercial general liability policy
of insurance protecting Tenant and Landlord (as an
additional insured) against claims for bodily injury,
personal injury and property damage based upon,
involving or arising out of the ownership, use,
occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be on an
occurrence basis providing single limit coverage in an
amount not less than $2,000,000.00 per occurrence with
an "Additional Insured-Managers or Landlords of
Premises" endorsement and contain an "Amendment of the
Pollution Exclusion" for damage caused by heat, smoke or
fumes from a hostile fire. The policy shall not contain
any intra-insured exclusions as between insured persons
or organizations, but shall include coverage for
liability assumed under this Lease as an "insured
contract" for the performance of Tenant's indemnity
obligations under this Lease. The limits of said
insurance required by this Lease or as carded by Tenant
shall not, however, limit the liability of Tenant nor
relieve Tenant of any obligation hereunder. All
insurance to be carried by Tenant shall be primary to
and not contributory with any similar insurance carried
by Landlord, whose insurance shall be considered excess
insurance only. All insurance coverage required pursuant
to this P. 16. which is to name Landlord as a named
insured shall also name Landlord's subsidiaries,
directors, agents, officers and employees as named
insureds.
2) Carried by Landlord. In the event Landlord is the
Insuring Party, Landlord shall also maintain liability
insurance as described in P. 16.b.1), in addition to,
and not in lieu of the insurance required to be
maintained by Tenant. In the event Tenant is the
Insuring Party, Landlord shall in addition carry
Landlord's Risk Coverage and insure the Premises on
Landlord's umbrella policy. Tenant shall not be named as
an additional insured therein under any insurance
obtained by Landlord in accordance with this P. 16.b.2).
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c. Property Insurance - Building, Improvements and Rental Value.
1) Building and Improvements. The Insuring Party shall
obtain and keep in force during the Term of this Lease a
policy or policies in the name of Landlord, with loss
payable to Landlord and to the holders of any mortgages,
deeds of trust or ground leases on the Business Park
("Lender(s)"), insuring loss or damage to the Business
Park. The amount of such insurance shall be equal to the
full replacement cost of the Business Park, as the same
shall exist from time to time, or the amount required by
Lender(s), but in no event more than the commercially
reasonable and available insurable value thereof if, by
reason of the unique nature or age of the improvements
involved, such latter amount is less than full
replacement cost. Such policy or policies shall insure
against all risks of direct physical loss or damage
(including the perils of flood and earthquake),
including coverage for any additional costs resulting
from debris removal and reasonable amounts of coverage
for the enforcement of any ordinance or law regulating
the reconstruction or replacement of any undamaged
sections of the Business Park required to be demolished
shall also contain an agreed valuation provision in lieu
of any coinsurance clause, waiver of subrogation and
inflation guard protection causing an increase in the
annual property insurance coverage amount by a factor of
not less than the adjusted U.S. Department of Labor
Consumer Price Index for All Urban Consumers for the
city nearest to where the Business Park is located. If
such insurance coverage has a deductible clause, then
Tenant shall be liable for such deductible amount. Even
if Landlord is the Insuring Party, Tenant's personal
property shall be insured by Tenant under P. 16.d.
rather than by Landlord.
2) Rental Value. The Insuring Party shall, in addition,
obtain and keep in force during the term of this Lease a
policy or policies in the name of Landlord, with loss
payable to Landlord and Lender(s), insuring the loss of
the full rental and other charges payable by Tenant to
Landlord under this Lease for one (1) year (including
all Real Property Taxes, Insurance Costs and any
scheduled Rent increases). Said insurance shall provide
that in the event the Lease is terminated by reason of
an insured loss, the period of indemnity for such
coverage shall be extended beyond the date of the
completion of repairs or replacement of the Premises, to
provide for one full years loss of Rent from the date of
any such loss. Said insurance shall contain an agreed
valuation provision in lieu of any coinsurance clause,
and the amount of coverage shall be adjusted annually to
reflect the projected Rent, Real Property Taxes,
Insurance Costs and other expenses, if any, otherwise
payable by Tenant, for the next twelve (12) month
period. Tenant shall be liable for any deductible amount
in the event of such loss.
3) Adjacent Premises. If the Premises are part of a larger
building, or if the Premises are part of a group of
buildings owned by Landlord which are
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adjacent to the Premises, the Tenant shall pay for any
increase in the premiums for the property insurance of
such building or buildings if said increase is caused by
Tenant's acts, omissions, use or occupancy of the
Premises.
4) Tenant's Improvements. If the Landlord is the Insuring
Party, the Landlord shall not be required to insure
Tenant's personal property and leasehold improvements
unless the item in question has become the property of
Landlord under the terms of this Lease. If Tenant is the
Insuring Party, the policy carried by Tenant under this
P. 16.c. shall insure Tenant's personal property and
leasehold improvements.
d. Tenant's Property Insurance. Subject to the requirements of
P. 16.e., Tenant at its cost shall either by separate policy, or
at Landlord's option, by endorsement to a policy already
carried, maintain insurance coverage on all of Tenant's personal
property and Tenant owned leasehold improvements in, on or about
the Premises similar in coverage to that carried by the Insuring
Party under P. 16.c. Such insurance shall be full replacement
cost coverage with a deductible of not to exceed $10,000 per
occurrence. The proceeds from any such insurance shall be used
by Tenant for the replacement of personal property or the
restoration of Tenant owned leasehold improvements. Tenant shall
be the Insuring Party with respect to the insurance required by
this P. 16.d. and shall provide Landlord with written evidence
that such insurance is in force.
e. Insurance Policies. Insurance required per this P. 16. shall be
with companies duly licensed to transact business in the state
where the Premises are located, and maintaining during the
policy term a "General Policyholders Rating" of at least A- X,
or such other minimal rating as may be required by Lender(s) as
set forth in the most current issue of "Best's Insurance Guide."
Tenant shall not do or permit to be done anything which shall
invalidate the insurance policies referred to in this P. 16.
Tenant shall cause to be delivered to Landlord certified copies
of policies of such insurance or certificates evidencing the
existence and amounts of such insurance with the insureds and
loss payable clauses as required by this Lease. No such policy
shall be cancelable or subject to modification except after
thirty (30) days prior written notice to Landlord. Tenant shall
at least thirty (30) days prior to the expiration of such
policies, furnish Landlord with evidence of renewals or
"insurance binders" evidencing renewal thereof, or Landlord may
order such insurance and charge the cost thereof to Tenant,
which amount shall be payable by Tenant to Landlord upon demand.
If the Insuring Party shall fail to procure and maintain the
insurance required to be carried by the Insuring Party under
this P. 16., the other Party may, but shall not be required to,
procure and maintain the same, but at Tenant's expense.
f. Mutual Waiver. Notwithstanding anything to the contrary
contained in this Lease, to the extent that this release and
waiver does not invalidate or impair their respective insurance
policies, the parties hereto release each other and their
respective agents, employees, officers, directors, shareholders,
successors,
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assignees and subtenants from all liability for injury to any
person or damage to any property that is caused by or results
from a risk which is actually insured against pursuant to the
provisions of this Lease without regard to the negligence or
willful misconduct of the parties so released. Each party shall
use its best efforts to cause each insurance policy it obtains
to provide that the insurer thereunder waives all right of
recovery by way of subrogation as required herein in connection
with any injury or damage covered by the policy. If such
insurance policy cannot be obtained with such waiver of
subrogation, or if such waiver of subrogation is only available
at additional cost and the party for whose benefit the waiver is
not obtained does not pay such additional costs after reasonable
notice, then the party obtaining such insurance shall promptly
notify the other party of the inability to obtain insurance
coverage with the waiver of subrogation.
17. DAMAGE AND DESTRUCTION
a. Damage - Restoration Required. In the event that the Building
containing the Premises is damaged by fire or other casualty
which is covered under insurance pursuant to the provisions of
P. 16. above, Landlord shall restore such damage provided that:
(i) the destruction of the Building containing the Premises does
not exceed sixty percent (60%) of the then replacement value of
the Building containing the Premises; (ii) the insurance
proceeds are available (inclusive of any deductible amounts) to
pay one hundred percent (100%) of the cost of restoration; and
(iii) in the reasonable judgment of Landlord, the restoration
can be completed within two hundred and seventy (270) days after
the date of the damage or casualty under the laws and
regulations of the state, federal, county and municipal
authorities having jurisdiction. The deductible amount of any
insurance coverage for damages to the Premises shall be paid by
Tenant. If such conditions apply so as to require Landlord to
restore such damage pursuant to this P. 17.a., this Lease shall
continue in full force and effect, unless otherwise agreed to in
writing by Landlord and Tenant. Tenant shall be entitled to a
proportionate reduction of Rent while such restoration takes
place, such proportionate reduction to be based on the extent to
which the damage and restoration efforts interfere with Tenant's
business in the Premises. Tenant's right to a reduction of Rent
hereunder shall be Tenant's sole and exclusive remedy in
connection with any such damage.
b. Damage - Restoration Not Required. In the event that the
Building containing the Premises is damaged by a fire or other
casualty and Landlord is not required to restore such damage in
accordance with the provisions of P. 17.a. immediately above,
Landlord shall have the option to either (i) repair or restore
such damage, with the Lease consisting in full force and effect,
but Rent to be proportionately abated as provided in P. 17.a.
above, or (ii) give notice to Tenant any time within thirty (30)
days after the occurrence of such damage terminating this Lease
as of a date to be specified in such notice which date shall not
be less than thirty (30) nor more than sixty (60) days after the
date on which such notice of termination is given. In the event
of the giving of such notice of termination, this Lease shall
expire and all interest of Tenant in the Premises shall
terminate on the date so specified in such notice and the Rent,
reduced by any proportionate reduction in
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Rent as provided for in P. 17.a. above, shall be paid to the
date of such termination. Notwithstanding the foregoing, if
Tenant delivers to Landlord the funds necessary to make up the
shortage (or absence) in insurance proceeds and the restoration
can be completed in a two hundred seventy (270) day period, as
reasonably determined by Landlord, and the destruction of the
Building containing the Premises does not exceed sixty percent
(60%) of the then replacement value, Landlord shall restore the
Premises as provided in P. 17.a. above.
c. End of Term Casualty. Notwithstanding the provisions of P. 17.a.
and P. 17.b. above, either Landlord or Tenant may terminate this
Lease if the Building containing the Premises is damaged by fire
or other casualty (and Landlord's reasonably estimated cost of
restoration of the Building containing the Premises exceeds ten
percent (10%) of the then replacement value of the Building
containing the Premises) and such damage or casualty occurs
during the last twelve (12) months of the Term of this Lease (or
the Term of any renewal option, if applicable) by giving the
other notice thereof at any time within thirty (30) days
following tile occurrence of such damage or casualty. Such
notice shall specify the date of such termination which date
shall not be less than thirty (30) nor more than sixty (60) days
following the date on which such notice of termination is given.
In the event of the giving of such notice of termination, this
Lease shall expire and all interest of Tenant in the Premises
shall terminate on the date so specified in such notice and the
Rent shall be paid to the date of such termination.
d. Termination by Tenant. In the event that the destruction to the
Building containing the Premises cannot be restored as required
herein under applicable laws and regulations within two hundred
seventy (270) days of the damage or casualty, notwithstanding
the availability of insurance proceeds, Tenant shall have the
right to terminate this Lease by giving the Landlord notice
thereof within thirty (30) days of date of the occurrence of
such casualty specifying the date of termination which shall not
be less than thirty (30) days nor more than sixty (60) days
following the date on which such notice of termination is given.
In the event of the giving of such notice of termination, this
Lease shall expire and all interest of Tenant in the Premises
shall terminate on the date so specified in such notice and the
Rent, reduced by any proportionate reduction in Rent as provided
for in P. 17.a. above, shall be paid to the date of such
termination.
e. Restoration. Landlord agrees that, in any case in which Landlord
is required to, or otherwise agrees to restore the Building
containing the Premises, Landlord shall proceed with due
diligence to make all appropriate claims and applications for
the proceeds of insurance and to apply for and obtain all
permits necessary for the restoration of the Building containing
the Premises. Landlord shall use reasonable efforts to enforce
any and all provisions in any mortgage, deed of trust or other
encumbrance on the Building containing the Premises requiring
Landlord and Lender to permit insurance proceeds to be used for
restoration. Landlord shall restore the Premises at least equal
to the condition existing prior to the date of the damage if
permitted by applicable law.
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18. CONDEMNATION
a. Definitions. The following definitions shall apply: (1)
"Condemnation" means (a) the exercise of any governmental power
of eminent domain, whether by legal proceedings or otherwise by
condemnor, or (b) the voluntary sale or transfer by Landlord to
any condemnor either under threat of condemnation or while legal
proceedings for condemnation are proceeding-, (2) "Date of
Taking" means the date the condemnor has right to possession of
the property being condemned; (3) "Award" means all
compensation, sums or anything of value awarded, paid or
received on a total or partial Condemnation; and (4) "Condemnor"
means any public or quasi-public authority, or private
corporation or individual, having power of Condemnation.
b. Obligations to be Governed by Lease. If during the Term of the
Lease there is any taking of all or any part of the Building
containing the Premises, the rights and obligations of the
parties shall be determined strictly pursuant to this Lease.
c. Total or Partial Taking. If the Building containing the Premises
are totally taken by Condemnation, this Lease shall terminate on
the Date of Taking. If any portion of the Building containing
the Premises is taken by Condemnation, this Lease shall remain
in effect, except that Tenant can elect to terminate this Lease
if the remaining portion of the Premises is rendered unsuitable
for Tenant's continued use of the Premises. If Tenant elects to
terminate this Lease, Tenant must exercise its right to
terminate by giving notice to Landlord within thirty (30) days
after the nature and extent of the Condemnation have been
finally determined. If Tenant elects to terminate this Lease,
Tenant shall also notify Landlord of the date of termination,
which date shall not be earlier than thirty (30) days nor later
than ninety (90) days after Tenant has notified Landlord of its
election to terminate; except that this Lease shall terminate on
the Date of Taking if the Date of Taking falls on a date before
the date of termination as designated by Tenant. If any portion
of the Premises is taken by Condemnation and this Lease remains
in full force and effect, on the Date of Taking the Base Rent
shall be reduced by an amount in the same ratio. as the total
number of square feet in the Premises taken bears to the total
number of square feet in the Premises immediately before the
Date of Taking. Any Award for the taking of all or any part of
the Premises under the power of eminent domain or any payment
made under threat of the exercise of such power shall be the
property of Landlord, whether such Award shall be made as
compensation for diminution in value of the leasehold or for the
taking of the fee, or as severance damages; provided, however,
that Tenant shall be entitled to any compensation separately
awarded to Tenant for Tenant's relocation expenses and/or loss
of Tenant's trade fixtures.
19. ASSIGNMENT OR SUBLEASE
a. Tenant shall not assign or encumber its interest in this Lease
or the Premises or sublease all or any part of the Premises or
allow any other person or entity (except Tenant's authorized
representatives, employees, invitees or guests) to occupy or
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use all or any part of the Premises without first obtaining
Landlord's consent, which consent shall not be unreasonably
withheld. Any assignment, encumbrance or sublease without
Landlord's prior written consent shall be voidable and at
Landlord's election, shall constitute a default. If Tenant is a
partnership, a withdrawal or change, voluntary, involuntary or
by operation of law of any partner, or the dissolution of the
partnership, shall be deemed a voluntary assignment. If Tenant
consists of more than one person, a purported assignment,
voluntary or involuntary or by operation of law from one person
to the other shall be deemed a voluntary assignment. If Tenant
is a corporation, any dissolution, merger, consolidation or
other reorganization of Tenant, or sale or other transfer of a
controlling percentage of the capital stock of Tenant, or the
sale of at least fifty percent (50%) of the value of the assets
of Tenant shall be deemed a voluntary assignment. All Rent
received by Tenant from its subtenants in excess of the Rent
payable by Tenant to Landlord under this Lease applicable to the
portion of the Premises subleased shall be paid to Landlord, or
any sums to be paid by an assignee to Tenant in consideration of
the assignment of this Lease shall be paid to Landlord. If
Tenant requests Landlord to consent to a proposed assignment or
subletting, Tenant shall pay to Landlord, whether or not consent
is ultimately given, an amount equal to Landlord's reasonable
attorneys' fees and costs incurred in connection with such
request. Tenant shall, upon completion of any assignment or
subletting of all or any portion of the Premises, immediately
and irrevocably assign to Landlord as security for Tenant's
obligations under the Lease, all Rent from any such subletting
or assignment. Landlord, as assignee and attorney in fact for
Tenant, shall have the right to collect all rent and other
revenues collectable pursuant to any such sublet or assignment
and apply such rent and other revenues towards Tenant's
obligations under the Lease provided, however, that Landlord
shall have no right to collect such rent and other revenues
until the occurrence of an act of default under this Lease.
b. No interest of Tenant in this Lease shall be assignable by
involuntary assignment through operation of law (including
without limitation the transfer of this Lease by testacy or
intestacy). Each of the following acts shall be considered an
involuntary assignment: (a) if Tenant is or becomes bankrupt or
insolvent, makes an assignment for the benefit of creditors, or
institutes proceedings under the Bankruptcy Act in which Tenant
is the bankrupt; or if Tenant is a partnership or consists of
more than one person or entity, if any partner of the
partnership or other person or entity is or becomes bankrupt or
insolvent, or makes an assignment for the benefit of creditors;
or (b) if a writ of attachment or execution is levied on this
Lease; or (c) if in any proceeding or action to which Tenant is
a party, a receiver is appointed with authority to take
possession of the Premises. An involuntary assignment shall
constitute a default by Tenant and Landlord shall have the right
to elect to terminate this Lease, in which case this Lease shall
not be treated as an asset of Tenant.
c. Landlord may, at its option, elect to terminate the Lease
instead of approving the requested assignment or sublease.
Should Landlord so elect to terminate this Lease, all of the
obligations of the parties thereunder shall terminate on the
later
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of sixty (60) days following Landlord's notice to Tenant of its
election hereunder, or the effective date of the proposed
assignment or subletting sought by the Tenant, but in no event
later than one hundred twenty (120) days following the date of
Landlord's election under this P. 19.c. At the time of
termination, all obligations of both parties hereunder shall
terminate as to obligations thereafter accruing except as
otherwise expressly provided in this Lease. Provided that the
proposed sublessee (or assignee, as the case may be) has a Net
Worth on its most recent financial statement prepared in
accordance with generally accepted accounting principles of at
least $5,000,000, the provisions of this 119.c. shall not apply
if, at the time of the proposed sublease (or assignment, as the
case may be), Tenant engages in a transaction with the proposed
sublessee (or assignee, as the case may be) to sell (i) all or
substantially all of Tenant's assets, or (ii) a majority of
Tenant's common stock.
20. DEFAULT. The occurrence of any of the following shall constitute a
default by Tenant: (a) a failure of Tenant to pay Rent within five (5)
days of its due date; (b) abandonment and vacation of the Premises
(failure to occupy and operate the Premises for sixty (60) consecutive
days shall be deemed an abandonment and vacation); or (c) failure to
timely perform any other provision of this Lease.
21. LANDLORD'S REMEDIES. Landlord shall have the following remedies if
Tenant is in default. (These remedies are not exclusive; they are
cumulative and in addition to any remedies now or later allowed by law):
a. Landlord may continue this Lease in full force and effect, and
this Lease will continue in effect so long as Landlord does not
terminate Tenant's right to possession, and Landlord shall have
the right to collect Rent when due. During the period Tenant is
in default, Landlord can enter the Premises and relet the
Premises, or any part of the Premises, to third parties for
Tenant's account. Tenant shall be liable immediately to Landlord
for all costs Landlord 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 the
remaining Term of this Lease. Tenant shall pay to Landlord the
Rent due under this Lease on the dates the Rent is due, less the
Rent Landlord receives from any reletting. No act by Landlord
allowed by this P. 21.a. shall terminate this Lease unless
Landlord notifies Tenant in writing that Landlord elects to
terminate this Lease. After Tenant's default and for so long as
Landlord does not terminate Tenant's right to possession of the
Premises, if Tenant obtains Landlord's consent, Tenant shall
have the right to assign or sublet its interest in this Lease,
but Tenant shall not be released from liability. Landlord's
consent to such a proposed assignment or subletting shall not be
unreasonably withheld. If Landlord elects to relet the Premises
as provided in this P. 21.a., Rent that Landlord receives from
reletting shall be applied to the payment of: first, any
indebtedness from Tenant to Landlord other than Rent due from
Tenant; second, all costs, including for maintenance incurred by
Landlord in reletting; and third, Rent due and unpaid under this
Lease. After deducting the payments referred to in this P.
21.a., any sum remaining from the Rent Landlord
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receives from reletting shall be held by Landlord and applied in
payment of future Rent as Rent becomes due under this Lease. In
no event shall Tenant be entitled to any excess Rent received by
Landlord. If, on the date Rent is due under this Lease, the Rent
received from the reletting is less than the Rent due on that
date, Tenant shall pay to Landlord in addition to the remaining
Rent _____ all costs including for maintenance Landlord incurred
in reletting that remain after applying the Rent received from
the reletting as provided in this P. 21.a.; and
b. Landlord may terminate Tenant's right to possession of the
Premises at any time. No act by Landlord other than giving
express written notice thereof to Tenant shall terminate this
Lease. Acts of maintenance, efforts to relet the Premises, or
the appointment of a receiver on Landlord's initiative to
protect Landlord's interest under this Lease shall not
constitute a termination of Tenant's right to possession. Upon
termination of Tenant's right to possession, Landlord has the
right to recover from Tenant: (1) the Worth of the unpaid Rent
that had been earned at the time of termination of Tenant's
right to possession; (2) the Worth of the amount by which the
unpaid Rent that would have been earned after the date of
termination until the time of award exceeds the amount of the
loss of Rent that Tenant proves could have been reasonably
avoided; (3) the Worth of the amount of the unpaid Rent that
would have been earned after the award throughout the remaining
Term of the Lease to the extent such unpaid Rent exceeds the
amount of the loss of Rent that Tenant proves could have been
reasonably avoided; and (4) any other amount, including but not
limited to, expenses incurred to relet the Premises, court
costs, attorneys' fees and collection costs necessary to
compensate Landlord for all detriment caused by Tenant's
default. The "Worth", as used above in (1) and (2) in this P.
21.b. is to be computed by allowing interest at the lesser of 18
percent per annum or the maximum legal interest rate permitted
by law. The "Worth", as used above in (3) in this P. 21.b., is
to be computed by discounting the amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of the
award, plus one percent (1%).
22. ENTRY OF PREMISES. Landlord and/or its authorized representatives shall
have the right to enter the Premises at all reasonable times with
reasonable prior notice for any of the following purposes: (a) to
determine whether the Premises are in good condition and whether Tenant
is complying with its obligations under this Lease; (b) to do any
necessary maintenance and to make any restoration to the Premises that
Landlord has the right or obligation to perform; (c) to post "for sale"
signs at any time during the Term, or to post "for rent" or "for lease"
signs during the last ninety (90) days of the Term or during any period
while Tenant is in default; (d) to show the Premises to prospective
brokers, agents, buyers, tenants or persons interested in leasing or
purchasing the Premises, at any time during the Term; or (e) to repair,
maintain or improve the Premises and to erect scaffolding and protective
barricades around and about the Premises but not so as to prevent entry
to the Premises and to do any other act or thing necessary for the
safety or preservation of the Premises. Landlord shall not be liable in
any manner for any inconvenience, disturbance, loss of business,
nuisance or other damage arising out of Landlord's entry onto the
Premises as provided in this P. 22. Tenant shall not be entitled to an
abatement or reduction of Rent if Landlord exercises any rights reserved
in this
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P. 22. Landlord shall conduct its activities on the Premises as provided
herein in a commercially reasonable manner that will lessen the
inconvenience, annoyance or disturbance to Tenant.
23. SUBORDINATION
a. Automatic Subordination. Without the necessity of any additional
document being executed by Tenant for the purpose of effecting a
subordination, and at the election of Landlord or any Lender(s)
against the Building containing the Premises, this Lease shall
be subject and subordinate at all times to (i) all ground leases
or underlying leases which may now exist or hereafter be
executed affecting the Building containing the Premises, (ii)
the lien of any mortgage or deed of trust which may hereafter be
executed affecting the Building containing the Premises, and
(iii) the lien of any mortgage or deed of trust which may
hereafter be executed in any amount for which the Premises,
ground leases or underlying leases, or Landlord's interest or
estate in any of said items is specified as security. In the
event that any ground lease or underlying lease terminates for
any reason or any mortgage or deed of trust is foreclosed or a
conveyance in lieu of foreclosure is made for any reason, Tenant
shall, notwithstanding any subordination, attorn to and become
the Tenant of the successor in interest to Landlord. In
connection with any such termination of a ground lease or
underlying lease or any foreclosure or conveyance in lieu of
foreclosure made in connection with any mortgage or deed of
trust, then so long as Tenant is not in default pursuant to this
Lease, Tenant shall not be disturbed in its possession of the
Premises or in the enjoyment of its rights pursuant to this
Lease during the Term of this Lease or any extension or renewal
thereof.
b. Additional Subordination. From time to time at the request of
Landlord, Tenant covenants and agrees to execute and deliver
within ten (10) days following the date of written request from
Landlord, documents evidencing the priority or subordination of
this Lease with respect to any ground lease or underlying lease
or the lien of any mortgage or deed of trust in connection with
the Building containing the Premises. Any and all such documents
shall be in such form as is reasonably acceptable to Tenant and
Landlord as well as the Lender(s) and other applicable party.
Any subordination agreement so requested by Landlord shall
provide for Tenant to attorn to the successor in interest to
Landlord and shall further provide that Tenant shall not be
disturbed in its possession of the Premises or in the enjoyment
of its rights pursuant to this Lease so long as Tenant is not in
default with respect to its obligations pursuant to the Lease.
Any such Subordination, Non-disturbance and Attornment Agreement
shall be recorded in the official records of the office of the
County Recorder in the County in which the Premises is located.
c. Notice from Lender. Tenant shall be entitled to rely upon any
notice given by Lender(s) in connection with the Premises
requesting that Tenant make all future Rent payments to such
Lender(s), and Tenant shall not be liable to Landlord for any
payment made to such Lender(s) in accordance with such notice.
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24. ESTOPPEL CERTIFICATE -- TENANT FINANCIAL STATEMENTS. Tenant, at any time
and from time to time, upon not less than ten (10) days written notice
from Landlord, will execute, acknowledge and deliver to Landlord and, at
Landlord's request, to any existing or prospective purchaser, ground
lessor or mortgagee of any part of the Premises, a certificate of Tenant
stating: (a) that Tenant has accepted the Premises (or, if Tenant has
not done so, Tenant has not accepted the Premises and specifying the
reasons therefor); (b) the Commencement and Expiration Dates of this
Lease; (c) that this Lease is unmodified and in full force and effect
(or, if there have been modifications, that same is in full force and
effect as modified and stating the modifications); (d) whether or not to
the best of Tenant's knowledge there are then existing any defense,
against the enforcement of any of the obligations of Tenant under this
Lease (and, if so, specifying same); (e) whether or not to the best of
Tenant's knowledge there are then existing any defaults by Landlord in
the performance of its obligations under this Lease (and, if so,
specifying same); (f) the dates, if any, to which the Rent and other
charges under this Lease have been paid; (g) whether or not there are
Rent increases during the Lease Term and if so the amount of same; (h)
whether or not the Lease contains any options or rights of first offer
or first refusal; (i) the amount of any Security Deposit or other sums
due Tenant; (j) the current notice address for Tenant; and (k) any other
information that may reasonably be required by any of such persons. It
is intended that any such certificate of Tenant delivered pursuant to
this P. 24. may be relied upon by Landlord and any existing or
prospective purchaser, ground lessor or mortgagee of the Building
containing the Premises. Tenant agrees, at any time upon request by
Landlord, to deliver to Landlord the current financial statements of
Tenant with an opinion of a certified public accountant, if available,
including a balance sheet and profit and loss statement for the most
recent prior three years all prepared in accordance with generally
accepted accounting principles consistently applied.
25. WAIVER. No delay or omission in the exercise of any right or remedy by
Landlord shall impair such right or remedy or be construed as a waiver.
No act or conduct of Landlord. including without limitation, acceptance
of the keys to the Premises, shall constitute an acceptance of the
surrender of the Premises by Tenant before the expiration of the Term.
Only written notice from Landlord to Tenant shall constitute acceptance
of the surrender of the Premises and accomplish termination of the
Lease. Landlord's consent to or approval of any act by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or render
unnecessary Landlord's consent to or approval of any subsequent act by
Tenant. Any waiver by Landlord of any Default must be in writing and
shall not be a waiver of any other Default concerning the same or any
other provision of the Lease.
26. SURRENDER OF PREMISES; HOLDING OVER. Upon expiration of the Term, Tenant
shall surrender to Landlord the Premises and all tenant improvements and
alterations in the same condition as existed at the Commencement Date,
except for ordinary wear and tear and alterations which Tenant has the
right or is obligated to remove under the provisions of P. 14. herein.
Tenant shall remove all personal property including, without limitation,
all wallpaper, paneling and other decorative improvements or fixtures
and shall perform all restoration made necessary by the removal of any
alterations or Tenant's personal property before the expiration of the
Term, including, for
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example, restoring all wall surfaces to their condition as of the
Commencement Date. Landlord can elect to retain or dispose of in any
manner Tenant's personal property not removed from the Premises by
Tenant prior to the expiration of the Term. Tenant waives all claims
against Landlord for any damage to Tenant resulting from Landlord's
retention or disposition of Tenant's personal property. Tenant shall be
liable to Landlord for Landlord's cost for storage, removal and disposal
of Tenant's personal property.
If Tenant with Landlord's consent remains in possession of the Premises
after expiration of the Term or after the date in any notice given by
Landlord to Tenant terminating this Lease, such possession by Tenant
shall be deemed to be a month to month tenancy cancelable by either
party on thirty (30) days written notice given at any time by either
party and all provisions of this Lease, except those pertaining to Term,
renewal options and Base Rent shall apply and Tenant shall pay monthly
Base Rent in an amount equal to one hundred fifty percent (150%) of the
Base Rent for the last full calendar month immediately preceding
expiration of the Term.
27. NOTICES. All notices, demands, or other communications required or
contemplated under this Lease shall be in writing and shall be deemed to
have been duly given 48 hours from the time of mailing if mailed by
registered or certified mail, return receipt requested, postage prepaid,
or 24 hours from the time of shipping by overnight carrier, or the
actual time of delivery if delivered by personal service to the parties
at the addresses specified in P. 1. Either Tenant or Landlord may change
the address to which notices are to be given to such party hereunder by
giving written notice of such change of address to the other in
accordance with the notice provisions hereof.
28. TENANT IMPROVEMENTS.
a. Landlord's Improvements: Landlord shall deliver the Premises to
Tenant in its current "As Is" condition, except that Landlord
will complete the demising wall and make the appropriate
division of existing HVAC and electrical systems in order to
demise the Premises in accordance with the Plan attached as
Exhibit A. New demising wall(s) to include sound insulation.
b. (i) Tenant's Improvements: Landlord hereby grants Tenant a
Construction Allowance not to exceed Thirty Three Thousand Seven
Hundred Ninety Three Dollars ($33,793.00) for carpet, paint and
other refurbishments or improvements to be done by Tenant
("Tenant's Improvements"). The Construction Allowance is not to
be used to purchase items of personal property which will become
the property of Tenant or the installation of Tenant's furniture
and equipment, or to install cabling for telecommunications
and/or computer networks.
(ii) Landlord will reimburse Tenant for costs paid to outside
vendors or contractors for materials or services for Tenant
Improvements, up to the maximum allowance stipulated in P.
28.b.(i) above, upon Tenant's submittal to Landlord of approved
paid invoices for reimbursement. Should Tenant not use the full
Construction Allowance by December 31, 1997, Landlord shall have
no further obligation to reimburse Tenant from the Construction
Allowance except
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for approved invoices submitted to Landlord for reimbursement
prior to December 31, 1997.
(iii) All of the work to be done by Tenant under this P. 28.b.
shall be done in accordance with the provisions of P. 14.
hereof.
29. Commencement Date and Expiration Date.
a. Notwithstanding any other provision of this Lease to the
contrary, the Term of the Lease shall commence on or about May
1, 1997, but more specifically on the date that Landlord has
completed Landlord's Improvements in accordance with P. 28.a.
above. Landlord shall allow Tenant to enter the Premises to
commence the installation of Tenant's Improvements prior to the
completion of Landlord's Improvements ("Early Occupancy for
Installation of Tenant's Improvements") only to the extent that
the work relating to Tenant's Improvements does not interfere
with or delay the installation of Landlord's Improvements. All
terms and conditions of the Lease, except for the payment of
Rent, shall be in full force and effect during the Early
Occupancy for Installation of Tenant's Improvements.
b. Should the Lease commence in accordance with P. 29.a. above,
prior to May 1, 1997, Landlord will xxxxx the Rent that would
otherwise be due from the Commencement Date through April 30,
1997 Rental Abatement"), and then amortize the Rental Abatement
over the remaining thirty-six month term of the Lease,
commencing May 1, 1997, at 10% annual interest, which amount
shall be paid monthly as additional Rent.
c. Regardless of the actual Commencement Date, the Expiration Date
shall be April 30, 2000.
30. OPTION TO RENEW
x. Xxxxx of Option. Tenant shall have the right, at its option, to
extend the Lease for one (1) period of two (2) years ("Extended
Term") commencing at the expiration of the initial Term,
provided that at the time of exercise of the option and at the
time of commencement of such Extended Term, Tenant is not in
default under this Lease.
b. Exercise of Option. If Tenant decides to extend the Lease for
the Extended Term, Tenant shall give written notice to Landlord
of its. election to extend not less than nine (9) months prior
to the expiration of the initial Term. Tenant's failure to give
timely notice to Landlord of Tenant's election to extend shall
be deemed a waiver of Tenant's right to extend. The terms and
conditions applicable to the Extended Term shall be the same
terms and conditions contained in this Lease except that
Landlord shall have no obligation to provide any Tenant
Improvements and Tenant shall not be entitled to any further
option to extend. The Base Rent for the Extended Term shall be
the then market rental rate as reasonably determined by
Landlord, but in no event shall it be less than the Base Rent
prevailing immediately prior to the expiration of the initial
Term.
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Furthermore, the monthly Base Rent for the second year of the
Extended Term will reflect an increase of $0.05 per rentable
square foot over the monthly Base Rent for the first year of the
Extended Term.
31. MISCELLANEOUS PROVISIONS.
a. Time of Essence. Time is of the essence of each provision of
this Lease.
b. Successor. This Lease shall be binding on and inure to the
benefit of the parties and their successors, except as provided
in P. 19.
c. Landlord's Consent. Any consent required by Landlord under this
Lease must be granted in writing and may be withheld or
conditioned by Landlord in its sole and absolute discretion
unless otherwise provided.
d. Commissions. Each party represents that it has not had
dealings with any real estate broker, finder or other person
with respect to this Lease in any manner, except for the
Broker(s) identified in P. 1., who shall be compensated by
Landlord in accordance with the separate agreement between
Landlord and the Broker(s).
e. Other Charges; Legal Fees. If Landlord becomes a party to any
litigation concerning this Lease or the Premises by reason of
any act or omission of Tenant or Tenant's authorized
representatives, Tenant shall be liable to Landlord for
reasonable attorneys' fees and court costs incurred by Landlord
in the litigation. Should the court render a decision which is
thereafter appealed by any party thereto, Tenant shall be liable
to Landlord for reasonable attorneys' fees and court costs
incurred by Landlord in connection with such appeal.
If either party commences any litigation against the other party
or files an appeal of a decision arising out of or in connection
with the Lease, the prevailing party shall be entitled to
recover from the other party reasonable attorneys' fees and
costs of suit. If Landlord employs a collection agency to
recover delinquent charges, Tenant agrees to pay all collection
agency and attorneys' fees charged to Landlord in addition to
Rent, late charges, interest and other sums payable under this
Lease.
f. Landlord's Successors. In the event of a sale or conveyance by
Landlord of the Building containing the Premises, the same shall
operate to release Landlord from any liability under this Lease,
and in such event Landlord's successor in interest shall be
solely responsible for all obligations of Landlord under this
Lease.
g. Interpretation. This Lease shall be construed and interpreted in
accordance with the laws of the state in which the Premises are
located. This Lease constitutes the entire agreement between the
parties with respect to the Premises, except for such guarantees
or modifications as may be executed in writing by the parties
from time to time. When required by the context of this Lease,
the singular shall include the plural, and the masculine shall
include the feminine and/or neuter. "Party" shall mean Landlord
or Tenant. If more than one person or entity
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constitutes Landlord or Tenant, the obligations imposed upon
that party shall be joint and several. The enforceability,
invalidity or illegality of any provision shall not render the
other provisions unenforceable, invalid or illegal.
h. Auctions. Tenant shall not conduct, nor permit to be conducted,
either voluntarily or involuntarily any auction upon the
Premises without first having obtained Landlord's prior written
consent. Notwithstanding anything to the contrary in this Lease,
Landlord shall not be obligated to exercise any standard of
reasonableness in determining whether to grant such consent.
i. Conflict. Any conflict between the printed provisions of this
Lease and the typewritten or handwritten provisions shall be
controlled by the typewritten or handwritten provisions.
j. Offer. Preparation of this Lease by Landlord or Landlord's agent
and submission of same to Tenant shall not be deemed an offer to
lease to Tenant. This Lease is not intended to be binding until
executed by all Parties hereto.
k. Amendments. This Lease may be modified only in writing, signed
by the Parties in interest at the time of the modification. The
parties shall amend this Lease from time to time to reflect any
adjustments that are made to the Base Rent or other Rent payable
under this Lease. As long as they do not materially change
Tenant's obligations hereunder, Tenant agrees to make reasonable
non-monetary modifications to this Lease as may be reasonably
required by Lender(s) in connection with the obtaining of normal
financing or refinancing of the property of which the Premises
are a part.
l. Construction. The Landlord and Tenant acknowledge that each has
had its counsel review this Lease, and hereby agree that the
normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be
employed in the interpretation of this Lease or in any
amendments or exhibits hereto.
32. Captions. Article, section and paragraph captions are not a part hereof.
33. Exhibits. For reference purposes the Exhibits are listed below:
Exhibit A: The Premises
Exhibit Al: Initial Tenant's Improvements
Exhibit B: Business Park
Exhibit C: Rules and Regulations
Exhibit D: Covenants, Conditions And Restrictions
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LANDLORD: TENANT:
LIMAR REALTY CORP. #24, VINA TECHNOLOGY, INC.,
a California corporation a California corporation
By: /s/ Xxxxxxxx X. Xxxxxxxxxxxx By: /s/ Xxxxxxx Xxxxxxx
-------------------------------- -------------------------------------
Xxxxxxxx X. Xxxxxxxxxxxx
President Name: Xxxxxxx Xxxxxxx
-----------------------------------
Title: VP Operations
-----------------------------------
Date: 3/24/97 Date: 3/18/97
------------------------------- -----------------------------------
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