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EXHIBIT 10.6
SUBLEASE
This Sublease ("Sublease") is made this 14TH day of NOVEMBER, 1998 by and
between ASCII OF AMERICA, INC., a CALIFORNIA corporation ("Sublandlord") and
COMMTOUCH, INC., a CALIFORNIA corporation ("Subtenant").
RECITALS
A. Sublandlord, as Tenant, is leasing from XXXXXXXXXX TOWERS, PHASE
I ("Landlord") those certain premises located at 0000 XXXXXXX XXXXXX, XXXXX
000, XXXXX XXXXX, Xxxxxxxxxx ("Premises") pursuant to that certain lease dated
JANUARY 13, 1996 ("Master Lease"). Subtenant acknowledges having received and
reviewed a copy of the Master Lease.
B. Sublandlord desires to lease to Subtenant and Subtenant desires to
lease from Sublandlord a portion of the Premises consisting of approximately
3,275 square feet (the "Sublease Premises") as shown on Exhibit A attached
hereto, on the terms and conditions set forth in this Sublease.
NOW, THEREFORE, the parties hereto agree as follows:
1. PREMISES
Sublandlord leases to Subtenant and Subtenant hires from
Sublandlord the Premises, together with the appurtenances thereto.
2. INCORPORATION OF MASTER LEASE
This Sublease is subject to all of the terms and conditions of the
Master Lease and Subtenant hereby accepts, assumes and agrees to perform all
the obligations of Sublandlord as Tenant under the Master Lease and all of the
terms and conditions of this Sublease (with each reference therein to Landlord
and Tenant to be deemed to refer to Sublandlord and Subtenant, respectively),
excepting only paragraphs: 2, 4 (a), 4(c), 4(d), 4(e), 5(a) 54 AND 55.
Subtenant shall not commit or permit to be committed on the Sublease Premises
any act or omission which shall violate any term or condition of the Master
Lease. In the event of the termination for any reason of Sublandlord's interest
as Tenant under the Master Lease, then this Sublease shall terminate therewith
without any liability of Sublandlord to Subtenant; except that if this Sublease
terminates as a result of a default of one of the parties hereto, whether under
this Sublease, the Master Lease, or both, the defaulting party shall be liable
to the non-defaulting party for all damages suffered by the non-defaulting
party resulting from such termination.
3. TERM
The term of this Sublease shall be for a period of FORTY-TWO (42)
MONTHS commencing on JANUARY 1, 1999 and ending on JUNE 30, 2002. In the event
Sublandlord is unable to deliver possession of the Sublease Premises at the
commencement of the term, Sublandlord shall not be liable for any damage caused
thereby, nor shall this Sublease be void or voidable nor shall the term hereof
be extended by such delay; provided, however, that Subtenant shall not be
liable for rent until such time as Sublandlord offers to deliver possession of
the Sublease Premises to Subtenant. Notwithstanding the foregoing, should the
Premises be undelivered by January 15, 1999, then Subtenant shall have the
right, but not the obligation, to terminate this Sublease Agreement and all
deposits and prepaid rent shall be returned within five (5) business days.
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4. USE
Subtenant shall use the Sublease Premises for GENERAL OFFICE USES AND
for no other purpose.
5. RENTAL
(a) Subtenant shall pay to Sublandlord as rent for the Sublease
Premises, in advance, on the first day of each calendar month of the term of
this Sublease, without deduction, offset, prior written notice or demand; in
lawful money of the United States, the sum of TEN THOUSAND FOUR HUNDRED EIGHTY
AND NO/100 DOLLARS ($10,480.00). Of this sum, SEVEN THOUSAND TWO HUNDRED FIVE
AND NO/100 DOLLARS ($7,205.00) shall be payable and subject to fixed increases
of ONE HUNDRED SIXTY THREE AND 75/100 DOLLARS ($163.75) as defined in the
attached rent schedule "I" (Addendum). Approximately THREE THOUSAND TWO HUNDRED
SEVENTY FIVE AND NO/100 DOLLARS ($3,275.00) shall be applied to Subtenant's
estimated pro-rata share of direct expenses as defined in Master Lease
Xxxxxxxxx 0, Xxx-Xxxxxxxxx (b), and reconciled with Sublandlord's annual
reconciliation on a pro-rata basis. If the commencement and/or termination date
is not the first day of the month, a prorated monthly installment shall be paid
at the then current rate for the fractional month during which the Sublease
commences and/or terminates.
(b) Sublandlord acknowledges receipt from Subtenant, on the
execution hereof, the sum of TEN THOUSAND FOUR HUNDRED EIGHTY AND NO/100
DOLLARS ($10,480.00) to be applied against rent for the first full month of the
term.
(c) Concurrently with Subtenant's execution of this Sublease,
Subtenant shall deposit with Sublandlord the sum of ELEVEN THOUSAND AND NO/100
DOLLARS ($11,000.00) as a non-interest bearing security deposit for Subtenant's
performance under this Sublease. In the event Subtenant has performed all of
the terms and conditions of this Sublease throughout the term, the amount paid
as security deposit shall be returned to Subtenant upon Subtenant vacating the
Premises, after first deducting any sums owing to Sublandlord.
6. SURRENDER AT END OF TERM
Subtenant agrees to surrender the Sublease Premises on expiration or
earlier termination of the term hereof, in good condition and repair,
reasonable wear and tear excepted.
7. LANDLORD'S WRITTEN CONSENT
This Sublease is conditioned upon and effective only upon obtaining
the written consent of Landlord.
8. NOTICES
All notices and demands of any kind required to be given by
Sublandlord or Subtenant hereunder shall be in writing and effective
twenty-four (24) hours after depositing same in the United States mail, postage
prepaid, and addressed to Sublandlord or Subtenant, as the case may be, at the
address set forth below their respective signature or at such other address as
they may designate from time to time.
9. INSURANCE
Insurance requirements pertaining to Sublandlord as Tenant under
paragraph 11 of the Master Lease shall also apply to Subtenant.
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10. BROKER
Upon execution of this Sublease, Sublessor shall pay Xxxxx Xxxxxx
Associates, a licensed real estate broker, fees set forth in a separate
agreement between Sublessor and Broker for brokerage services rendered by
Broker to Sublessor in this transaction. Contingent on lease becoming effective.
SUBLANDLORD: SUBTENANT:
ASCII OF AMERICA, INC., COMMTOUCH, INC.,
a California corporation a California corporation
By: /s/ XXXX CHIDAMBARAM By: /s/ XXXXXX XXXXXX
------------------------------ -------------------------------
Name: Xxxx Chidambaram Name: Xxxxxx Xxxxxx
---------------------------- -----------------------------
Title: President Title: Chief Executive Officer
--------------------------- ----------------------------
Date: December 4, 1998 Date: 12/1/98
---------------------------- -----------------------------
By: By:
------------------------------ -------------------------------
Name: Name:
---------------------------- -----------------------------
Title: Title:
--------------------------- ----------------------------
Date: Date:
---------------------------- -----------------------------
Address: Address:
-------------------------- ---------------------------
---------------------------------- -----------------------------------
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ADDENDUM TO THE SUBLEASE DATED NOVEMBER 14, 1998 BY AND BETWEEN ASCII OF
AMERICA, INC. AS SUBLESSOR, AND COMMTOUCH, INC., A CALIFORNIA CORPORATION AS
SUBLESSEE FOR THE APPROXIMATELY 3,275 RENTABLE SQUARE FEET OF PROPERTY FURTHER
DESCRIBED AS SUITE 730 AT 0000 XXXXXXX XXXXXX, XXXXX XXXXX, XXXXXXXXXX.
I. RENTAL SCHEDULE*
Period Price/SF Rent/Month
------ -------- ----------
01/01/99 - 06/30/99 $3.20 $10,480.00
07/01/99 - 06/30/00 $3.25 $10,643.75
07/01/00 - 06/30/01 $3.30 $10,807.50
07/01/01 - 06/30/02 $3.35 $10,971.25
* Lessee shall share any other expenses described in Master Lease on a pro
rata basis.
II. CONDITION OF PREMISES
Sublessee shall take the space on an "as is" basis subject to the carpet
being vacuumed and the space being left in a clean and tenantable
condition.
III. OPTIONS TO EXPAND
Sublessee shall have two (2) options to expand into the adjoining Suite
740 (as shown on Exhibit A) of approximately 1,555 square feet during the
term of the sublease at the same terms and conditions as the original
transaction. The first option shall be exercisable on January 1, 2000 and
if not exercised, the second option shall be exercisable on January 1,
2001. Options require Sublessee to notify Sublessor in writing at least
120 days prior to the exercise date. Both parties agree that these notices
therefore must be dated October 1, 1999 and October 1, 2000 or prior.
IV. ADDITIONAL PARKING
Sublandlord hereby assigns its two additional underground parking cards
to Subtenant, at Subtenant's sole cost.
V. FUNDING CONTINGENCY
This sublease is conditional upon Sublessee receiving additional funding
of approximately $3M by December 24, 1998. Should funding not be received
by this date, then Sublandlord shall have the right, but not the
obligation, to terminate this agreement and all deposits, and prepaid rent
shall be returned within five (5) business days.
[INIT]
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APPROXIMATELY 3,275 RENTABLE SQUARE FEET
SUITE 730
EXHIBIT A
[SUITE 730 DIAGRAM]
Approx. 1,555 Sq. Ft. = Suite 740
Approx. 3,275 Sq. Ft.
[MAP]
o AVAILABLE NOW
o $3.20 PSF Fully Serviced
o Sublease Term through 6/30/02
o Longer Term Available Through Landlord
o Full Athletic Club
o Conference Facility
o Indoor Lap Pool and Jacuzzi
o Aerobics Classes
o Underground Parking
o Private Helipad
o 24-Hour Security
o On-Site Management
[INIT]
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LANDLORD'S CONSENT TO SUBLEASE
THIS CONSENT ("Consent") is given by XXXXXXXXXX TOWERS, PHASE-I,
("Landlord") to that certain Sublease dated November 14th, 1998 (the
"Sublease") by and between ASCII OF AMERICA, INC. a California corporation
("Sublandlord") and COMMTOUCH, INC., a California corporation ("Subtenant"),
subject to the following terms and conditions:
1. All capitalized terms not otherwise defined herein shall have the
meaning ascribed to them in the Sublease.
2. Landlord is not a party to the Sublease and has no obligations or
duties to Subtenant or Sublandlord under the Sublease and any provisions
therein purporting to obligate and/or bind Landlord or limit Landlord's rights
under the Master Lease in any way are deemed null and void. Notwithstanding any
provision to the contrary in the Sublease, Subtenant shall have no greater
rights than Sublandlord has as Tenant under the Master Lease.
3. This Consent shall only apply to this Sublease and shall not be
deemed to be a consent to any other or further sublease or a waiver of any of
the provisions of the Master Lease.
4. By consenting to the Sublease, Landlord waives none of its rights
against the Sublandlord as Tenant under the Master Lease. The Sublease is and
shall remain at all times subject to and subordinate in all respects to the
Lease.
5. This Consent shall not modify or amend or be deemed to modify or amend
the Lease in any way, or to impose on Landlord any obligation to provide notice
to, or obtain consent from, Subtenant with respect to amendments, defaults,
waivers or any other matters pertaining to the Master Lease or to the Premises
covered by the Master Lease. Any waiver by Landlord of its rights shall be made
only in writing and signed by Landlord.
6. Upon the expiration or earlier termination of the Master Lease, the
Sublease shall automatically and without notice or demand, terminate and
Subtenant agrees promptly to surrender the Sublease Premises to Landlord upon
such termination without compensation from Landlord.
7. This Consent shall not be effective until receipt by Landlord of a
counterpart or counterparts of this Consent duly executed by Sublandlord and
Subtenant, each acknowledging its agreement to the terms and conditions
specified in this Consent.
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Landlord:
XxXXXXXXXX TOWERS, PHASE-I
a California limited partnership
By: XxXxxxxxxx Group (MTI),
a California general partnership
a General Partner
By: /s/ XXXX X. XXXXXXXXXX
-------------------------------
Xxxx X. XxXxxxxxxx, as Trustee
under the Xxxx X. XxXxxxxxxx
and Xxxx XxXxxxxxxx Inter
Vivos Trust Agreement dated
February 17, 1982,
a General Partner
EACH OF THE UNDERSIGNED HEREBY ACKNOWLEDGE THAT IT HAS READ AND UNDERSTANDS THE
TERMS AND CONDITIONS SPECIFIED IN THE FOREGOING CONSENT AND AGREES TO ALL SUCH
TERMS AND CONDITIONS.
SUBLANDLORD: SUBTENANT:
ASCII OF AMERICA, INC. COMMTOUCH, INC.
a California corporation a California corporation
By: /s/ Xxxx Chidambaram By: /s/ Xxxxxx Xxxxxx
--------------------------- --------------------------
Name: Xxxx Chidambaram Name: Xxxxxx Xxxxxx
------------------------- --------------------------
Title: President Title: President
------------------------ -------------------------
Date: December 10, 1998 Date:
------------------------- --------------------------
By: By:
--------------------------- --------------------------
Name: Name:
------------------------- --------------------------
Title: Secretary Title: Secretary
------------------------ -------------------------
Date: Date:
------------------------- --------------------------
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EXHIBIT
XxXXXXXXXX TOWERS, PHASE I
AND
ASCII OF AMERICA, INC.
LEASE
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SUMMARY OF LEASE
XXXXXXXXXX TOWERS, PHASE I
1. DATE OF LEASE: 1/13/96
2. LANDLORD: XxXxxxxxxx Towers, Phase I
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
3. TENANT: ASCII of America, Inc.,
a California corporation
4. PREMISES: 0000 Xxxxxxx Xxxxxx, Suites 730 and 740
Xxxxx Xxxxx, Xxxxxxxxxx 00000
5. SQUARE FEET: 4,830 sq. ft.
6. PERMITTED USE: General office
7. TERM: Five (5) years
(a) SCHEDULED COMMENCEMENT DATE: July 1, 1997
(b) SCHEDULED EXPIRATION DATE: June 30, 2002
8. RENT:
(a) BASIC RENT: $ 9,080.40 per month (Lease months 1-12) $2.75
$ 9,321.90 per month (Lease months 13-24) $2.80
$ 9,563.40 per month (Lease months 25-36) $2.85
$ 9,804.90 per month (Lease months 37-48) $2.90
$10,046.40 per month (Lease months 49-60) $2.95
(b) TENANT'S ESTIMATED SHARE OF
COMMON AREA CHARGES: $ 4,202.10 per month
9. SECURITY DEPOSIT: $14,248.50
10. PARKING SPACES PROVIDED: Seventeen (17)
11. OTHER IMPORTANT PROVISIONS: Tenant Improvement Allowance
Early Access
THIS SUMMARY OF LEASE IS INTENDED TO SUMMARIZE CERTAIN KEY PROVISIONS IN THE
ATTACHED LEASE. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE
PROVISIONS OF THIS SUMMARY AND THE LEASE, THE PROVISIONS OF THE LEASE SHALL
GOVERN.
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TABLE OF CONTENTS
ITEM PAGE
---- ----
1. USE
2. TERM
3. POSSESSION
4. MONTHLY RENT
5. ADJUSTMENT OF BASIC RENT AND DIRECT EXPENSES
6. RESTRICTION ON USE
7. COMPLIANCE WITH LAWS
8. ALTERATIONS
9. REPAIR AND MAINTENANCE
10. LIENS
11. INSURANCE
12. UTILITIES AND SERVICE
13. TAXES AND OTHER CHARGES
14. ENTRY BY LANDLORD
15. COMMON AREA; PARKING
16. DAMAGE BY FIRE; CASUALTY
17. INDEMNIFICATION
18. ASSIGNMENT AND SUBLETTING
19. DEFAULT
20. LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT
21. EMINENT DOMAIN
22. NOTICE AND COVENANT TO SURRENDER
23. TENANT'S QUITCLAIM
24. HOLDING OVER
25. SUBORDINATION
26. CERTIFICATE OF ESTOPPEL
27. SALE BY LANDLORD
28. ATTORNMENT TO LENDER OR THIRD PARTY
29. DEFAULT BY LANDLORD
30. CONSTRUCTION CHANGES
31. MEASUREMENT OF PREMISES
32. ATTORNEY FEES
33. SURRENDER
34. WAIVER
35. EASEMENTS; AIRSPACE RIGHTS
36. RULES AND REGULATIONS
37. NOTICES
38. NAME
39. GOVERNING LAW; SEVERABILITY
40. DEFINITIONS
41. TIME
42. INTEREST ON PAST DUE OBLIGATIONS; LATE CHARGE
43. ENTIRE AGREEMENT
44. CORPORATE AUTHORITY
45. RECORDING
46. REAL ESTATE BROKERS
47. EXHIBITS AND ATTACHMENTS
48. ENVIRONMENTAL MATTERS
49. SIGNAGE
50. SUBMISSION OF LEASE
51. PREMISES TAKEN "AS IS"
52. ADDITIONAL RENT
53. LANDLORD'S OPTION TO RELOCATE PREMISES
54. TENANT IMPROVEMENT ALLOWANCE
55. EARLY ACCESS
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XxXXXXXXXX TOWERS
OFFICE LEASE
THIS LEASE is made this 13th day of January, 1996 by and between
XxXXXXXXXX TOWERS, PHASE I, a California limited partnership ("Landlord"), and
ASCII OF AMERICA, INC., a California corporation ("Tenant").
W I T N E S S E T H :
Landlord leases to Tenant and Tenant leases from Landlord those certain
premises outlined in red on Exhibit A (the "Premises"), which Premises are
commonly known as 0000 Xxxxxxx Xxxxxx, Suites 730 and 740, Santa Clara,
California and, which Landlord and Tenant hereby agree consists of
approximately four thousand eight hundred thirty (4,830) square feet on the
seventh floor. As used herein the term "Project" shall mean and include all of
the land as outlined in red on Exhibit B and all the buildings, improvements,
fixtures and equipment now or hereafter situated on said land.
Tenant covenants, as a material part of the consideration of this
lease, to perform and observe each and all of the terms, covenants and
conditions set forth below, and this lease is made upon the condition of such
performance and observance.
1. USE. Subject to the restrictions contained in paragraph 6,
Tenant shall use the Premises for general office use and shall not use or
permit the Premises to be used for any other purpose.
2. TERM. The term shall be for five (5) years and, subject to
paragraph 3, shall commence on the date (the "Lease Commencement Date") that is
the later of (i) July 1, 1997 or (ii) twenty-one (21) days after the date that
Landlord is able to permit Tenant early occupancy as provided in paragraph 55
of this lease and shall terminate five (5) years after the Lease Commencement
Date.
3. POSSESSION
(a) If Landlord for any reason cannot deliver possession of the
Premises to Tenant by the scheduled commencement date set forth in paragraph 2,
this lease shall not be void or voidable, Landlord shall not be liable to
Tenant for any loss or damage on account thereof and Tenant shall not be liable
for rent until Landlord delivers possession of the Premises to Tenant. The
expiration date of the term shall be extended by the same number of days that
Tenant's possession of the Premises was delayed from that set forth in
paragraph 2. If the term commences on a date other than specified in paragraph
2 above, then the parties shall immediately execute an amendment to this lease
stating the actual date of commencement and the revised expiration date.
(b) Tenant's inability or failure to take possession of the
Premises when delivery is tendered by Landlord shall not delay the commencement
of the term of this lease or Tenant's obligation to pay rent. Tenant
acknowledges that Landlord shall incur significant expenses upon the execution
of this lease, even if Tenant never takes possession of the Premises, including
without limitation brokerage commissions and fees, legal fees and other
professional fees. Tenant acknowledges that all of said expenses shall be
included in measuring Landlord's damages should Tenant breach the terms of this
lease.
4. MONTHLY RENT
(a) Basic Rent. Tenant shall pay to Landlord as basic rent for
the premises, in advance and subject to adjustment as provided in paragraph 5,
the sum of Nine Thousand Eighty and 40/100 Dollars ($9,080.40) on or before the
first day of the first full calendar month of the term and on or before the
first day of each and every successive calendar month. Basic rent for any
partial month shall be payable in advance and shall be prorated based on the
actual number of days during the lease term occurring in such month divided by
the total number of days in such month.
(b) Direct Expenses. In addition to the above basic rent Tenant
shall pay to Landlord as additional rent, subject to adjustment and
reconciliation as provided in paragraph 5(b) of this lease, the sum of Four
Thousand Two Hundred Two and 10/100 Dollars ($4,202.10) on or before the first
day of the first full calendar month of the term and on the first day of each
and every successive calendar month, said sum representing Tenant's estimated
payment of its proportionate share of direct expenses as provided for in
paragraph 5(b) to this lease. Payment for direct expenses for any partial month
shall be payable in advance and shall be prorated based on the actual number of
days during he lease term occurring in each month divided by the total number
of days in such month.
(c) Manner and Place of Payment. All payments of basic rent and
direct expenses shall be paid to Landlord, without deduction or offset, in
lawful money of the United States of America, at the office of Landlord at 0000
Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx, 00000, or to such other
person or place as Landlord may from time to time designate in writing.
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(d) First Month's Rent. Concurrently with Tenant's execution of this
lease, Tenant shall deposit with Landlord the sum of Thirteen Thousand Two
Hundred Eighty-two and 50/100 Dollars ($13,282.50) to be applied against the
basic rent and direct expenses for the first lease month of the term.
(e) Security Deposit. Concurrently with Tenant's execution of this
lease, Tenant shall deposit with Landlord the sum of Fourteen Thousand Two
Hundred Forty-Eight and 50/100 Dollars ($14,246.50), which sum shall be held by
Landlord as a security deposit for the faithful performance by Tenant of all of
the terms, covenants and conditions of this lease to be kept and performed by
Tenant. If defaults with respect to any provision of this lease, including but
not limited to the provisions relating to the payment of basic rent and direct
expenses, Landlord may (but shall not be required to) use, apply or retain all
or any part of this security deposit for the payment of any amount which
Landlord may spend by reason of Tenant's default or to compensate Landlord for
any other loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of said deposit is so used, Tenant shall, within ten
(10) days after written demand therefor, deposit cash with Landlord in the
amount sufficient to restore the security deposit to its original amount;
Tenant's failure to do so shall be a material breach of this lease.
Landlord shall not be required to keep this security deposit separate
from its general funds and Tenant shall not be entitled to interest on such
deposit. If Tenant is not in default at the expiration or termination of this
lease, the security deposit or any balance thereof shall be returned to Tenant
after Tenant has vacated the Premises. In the event of termination of
Landlord's interest in this lease, Landlord shall transfer said deposit to
Landlord's successor in interest, and Tenant agrees that Landlord shall
thereupon be released from liability for the return of such deposit or any
accounting therefor.
5. ADJUSTMENT OF BASIC RENT AND DIRECT EXPENSES
(a) Adjustments to Basic Rent
The basic rent provided for in paragraph 4(a) shall be adjusted
periodically and the monthly basic rent for each period shall be as set forth
below:
Lease months 1-12 $ 9,080.40 per month
Lease months 13-24 $ 9,321.90 per month
Lease months 25-36 $ 9,563.40 per month
Lease months 37-48 $ 9,804.90 per month
Lease months 49-60 $10,046.40 per month
(b) Adjustments to Direct Expenses. Tenant's proportionate share of
direct expenses shall be two and forty-eight one-hundredths percent (2.48%) of
all direct expenses as defined below.
Tenant shall be required to pay to Landlord, as additional rent in
accordance with paragraph 4(b) of this lease, Tenant's proportionate share of
direct expenses for each calendar year (or portion thereof) during the term of
this lease. Tenant's estimated share of the monthly direct expenses payable by
Tenant during the calendar year in which the term commences is set forth in
paragraph 4(b) of this lease. A written estimate of Tenant's monthly share of
direct expenses for each succeeding calendar year shall be delivered to Tenant
prior to the commencement of each such succeeding calendar year (or as soon as
practicable thereafter). Tenant shall pay to Landlord in accordance with
paragraph 4(b) of this lease its monthly share of direct expenses as estimated
by Landlord. Landlord reserves the right to revise such written estimate during
a calendar year if Landlord's actual or projected direct expenses shows an
increase or decrease in excess of ten percent (10%) from that of an earlier
written estimate delivered to Tenant, and if Landlord elects to revise the
earlier estimate, Landlord shall deliver the revised estimate to Tenant,
together with an explanation of the reasons therefor, and Tenant shall revise
its payments accordingly. Statements of the actual direct expenses for the
calendar year in which the term commences and for each succeeding calendar year
(herein called "statement of actual direct expenses") shall be delivered to
Tenant within one hundred twenty (120) days following the expiration of each
such calendar year (or as soon as practicable thereafter). If the statement of
actual direct expenses for any such calendar year shows that Tenant's
proportionate share of actual direct expenses for the year is in excess of the
aggregate amount Tenant has paid as direct expenses for that calendar year,
Tenant shall pay such excess to Landlord within ten (10) days after receipt of
the statement of actual direct expenses. If Tenant fails to pay such excess
amount due within said ten (10) day period, Tenant shall pay an additional ten
percent (10%) of the amount due as a penalty. In the event that any statement
of actual direct expenses shall show that Tenant has paid Landlord an aggregate
amount in excess of the actual direct expenses for the preceding calendar year
and Tenant is not in default in the performance or observance of any of the
terms, covenants or conditions of this lease at the time such statement of
actual direct expenses is delivered, Landlord shall, at its option, promptly
either refund such excess to Tenant or credit the amount thereof to the monthly
direct expenses next becoming due from Tenant. The respective obligations of
Landlord and Tenant under this paragraph shall survive the expiration or other
termination of this lease.
As used in this lease, "direct expenses" shall include, but not be limited
to, (i) real property taxes, assessments, and other costs identified as direct
expenses in paragraph 13; (ii) insurance premiums and other costs identified as
direct expenses in paragraph 11, (iii) the cost of all utilities and services
including water, gas and sewer charges, electricity, heat, air conditioning,
refuse collection, and janitorial services identified as direct expenses in
paragraph 12; (iv) the costs of operating and maintaining the Common Area
identified as direct expenses in paragraph 15, including, but not limited to,
the landscaping, elevators, parking lots, paving, sidewalks, health club
facilities (including the pool, spa, showers, locker rooms, exercise rooms and
exercise equipment) and security and exterminator services; (v) the costs and
expenses of maintaining and repairing the Project identified as direct expenses
in paragraph 9, including, but not limited to, mechanical, electrical,
plumbing, and sewage systems, windows, glazing, gutters, downspouts, heating
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and ventilating and air conditioning systems, walls, floorcoverings and the cost
of maintenance contracts and supplies, materials, equipment and tools used in
connection therewith; (vi) the cost of alterations identified as direct expenses
in paragraph 8; (vii) amortization of such capital improvements having a useful
life greater than one year as Landlord may have installed for the purpose of
reducing operating costs and/or to comply with all laws, rules and regulations
of federal, state, county, municipal and other governmental authorities now or
hereafter in effect (Tenant's share of such capital improvement shall equal
Tenant's proportionate share of the fraction of the cost of such capital
improvement equal to the remaining term of the lease over the useful life of
such capital improvement); (viii) wages, salaries, employee benefits (including
union benefits) and related expenses of all on-site and off-site personnel
directly engaged in the operation, management and maintenance of the Project (or
the building in which the Premises are located), payroll taxes applicable
thereto and all costs incurred to maintain a management office in or near the
Project (including, without limitation, rental payments therefor or the
reasonable rental value of the space so occupied); (ix) a management cost
recovery as determined by Landlord equal to three percent (3%) of the sum of the
basic rent and the aggregate of all other direct expenses for the Project; (x)
supplies, materials, equipment and tools used or required in connection with the
operation and maintenance of the Project; (xi) licenses, permits and inspection
fees; (xii) a reasonable reserve for repairs and replacement of equipment used
in the maintenance and operation of the Project; and (xiii) all other costs
which Landlord shall pay or become obligated to pay because of or in connection
with the ownership, maintenance and operation of the Project and such additional
facilities now and in subsequent years as may be determined by Landlord to be
necessary to the Project; provided, however, that direct expenses shall not
include any such costs or expenses to the extent they are billed or metered
directly to Xxxx'x Restaurant, (or, if not separately billed or metered, the
extent they contribute to the restaurant's allocable share of such costs and
expenses, as determined by Landlord). Notwithstanding anything above to the
contrary, direct expenses shall not include leasing commissions paid to any real
estate broker, salesman or agent.
6. RESTRICTION ON USE. Tenant shall not do or permit to be done in or
about the Premises or the Project, nor bring or keep or permit to be brought or
kept in or about the Premises or Project, anything which is prohibited by or
will in any way increase the existing rate of, or otherwise affect, fire or any
other insurance covering the Project or any part thereof, or any of its
contents, or will cause a cancellation of any insurance covering the Project or
any part thereof, or any of its contents. Tenant shall not do or permit to be
done anything in or about the Premises or the Project which will constitute
waste or which will in any way obstruct or interfere with the rights of other
tenants or occupants of the Project or injure or annoy them, or use or allow the
Premises to be used for any unlawful purpose, nor shall Tenant cause, maintain
or permit any nuisance on or about the Premises or the Project. No loudspeaker
or other device, system or apparatus which can be heard outside the Premises
shall be used in or at the Premises without the prior written consent of
Landlord. Tenant shall not use the Premises for sleeping, washing clothes,
cooking or in any manner that will cause or emit any objectionable odor, noise
or light into the adjoining premises or Common Area. Tenant shall not do
anything on the Premises that will cause damage to the Project and Tenant shall
not overload the floor capacity of the Premises or the Project. No machinery,
apparatus or other appliance shall be used or operated in or on the Premises
that will in any manner injure, vibrate or shake the Premises. Landlord shall be
the sole judge of whether such odor, noise, light or vibration are such as to
violate the provisions of this paragraph 6. No waste materials or refuse shall
be dumped upon or permitted to remain upon any part of the Premises or the
Project except in trash containers placed inside exterior enclosures designated
for that purpose by Landlord, or where otherwise designated by Landlord; and no
toxic or hazardous materials shall be disposed of through the plumbing or sewage
system. No materials, supplies, equipment, finished products or semi-finished
products, raw materials or articles of any nature shall be stored or permitted
to remain outside of the building proper. No retail sales shall be made on the
Premises.
7. COMPLIANCE WITH LAWS. Tenant shall, in connection with its use and
occupation of the Premises, at its sole cost and expense, promptly observe and
comply with (i) all laws, statutes, ordinances and governmental rules,
regulations and requirements of federal, state, county, municipal and other
governmental authorities, now or hereafter in effect, which shall impose any
duty upon Landlord or Tenant with respect to the use, occupancy or alteration of
the Premises, (ii) with the requirements of any board of fire underwriters or
other similar body now or hereafter constituted and (iii) with any direction or
occupancy certificate issued pursuant to law by any public authority; provided,
however, that no such failure shall be deemed a breach of those provisions if
Tenant, immediately upon notification, commences to remedy or rectify said
failure. The judgment of any court of competent jurisdiction or the admission of
Tenant in any action against Tenant (whether or not Landlord is a party
thereto), that Tenant has violated any such law, statute, ordinance or
governmental rule, regulation, requirement, direction or provision, shall be
conclusive of that fact as between Landlord and Tenant. This lease shall remain
in full force and effect notwithstanding any loss of use or other effect on
Tenant's enjoyment of the Premises by reason of any governmental laws, statutes,
ordinances, rules, regulations and requirements now or hereafter in effect.
8. ALTERATIONS. Tenant shall not make or suffer to be made any
alteration, addition or improvement to or of the Premises or any part thereof
(collectively referred to herein as "alterations") without (i) the prior written
consent of Landlord, (ii) a valid building permit issued by the appropriate
governmental authority and (iii) otherwise complying with all applicable laws,
regulations and requirements of governmental agencies having jurisdiction and
with the rules, regulations and requirements of any board of fire underwriters
or similar body. Landlord's consent to any alteration shall not create on the
part of Landlord or cause Landlord to incur any responsibility or liability for
such alteration's compliance with all laws, rules and regulations of federal,
state, county, municipal and other governmental authorities. Any alteration made
by Tenant (excluding moveable furniture and trade fixtures not attached to the
Premises) shall at once become a part of the Premises and belong to Landlord.
Without limiting the foregoing, all heating, lighting, electrical (including all
wiring, conduit, outlets, drops, xxxx ducts, main and subpanels), air
conditioning, partitioning, drapery, window covering and carpet installations
made by Tenant, regardless of how attached to the Premises, shall be and become
part of the Premises and belong to Landlord upon installation and shall not be
deemed trade fixtures and, subject to Landlord's right to require removal and
restoration as specified herein, shall remain upon and be surrendered with the
Premises at the termination of the lease.
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If Landlord consents to the making of any alteration by Tenant, the
same shall be made by Tenant at its sole risk, cost and expense and only after
Landlord's written approval of any contractor or person selected by Tenant for
that purpose, and the same shall be made at such time and in such manner as
Landlord may from time to time designate. Tenant shall, if required by
Landlord, secure at Tenant's cost a completion and lien indemnity bond for such
work. Upon the expiration or sooner termination of the term, Landlord may, at
its sole option, require Tenant, at Tenant's sole cost and expense, to promptly
remove any such alteration made by Tenant and designated by Landlord to be
removed, repair any damage to the Premises caused by such removal and restore
the Premises to their condition prior to Tenant's alteration. Any moveable
furniture and equipment or trade fixtures remaining on the Premises at the
expiration or other termination of the term shall become the property of the
Landlord; provided, however, in addition to all other remedies available to
Landlord at law or in equity, Landlord may (i) require Tenant to remove same or
(ii) remove same at Tenant's cost, and Tenant shall be liable to Landlord for
all damages incurred by Landlord related thereto.
If during the term any alteration, addition or change of the Premises
is required by law, regulation, ordinance or order of any public authority,
Tenant, at its sole cost and expense, shall promptly make the same. If during
the term any alterations, additions or changes to the Common Area or to the
Project in which the Premises is located is required by law, regulation,
ordinance or order of any public or quasi-public authority, and it is
impractical, in Landlord's judgment, for the affected Tenants to individually
make such alterations, additions or changes Landlord shall make such
alterations, additions or changes and the cost thereof shall be a direct
expense and Tenant shall pay its percentage share of such cost to Landlord as
provided in paragraphs 4 and 5.
9. REPAIR AND MAINTENANCE. Subject to paragraph 16, Landlord shall
maintain and keep in good repair the Common Area, as defined in paragraph 40,
and the mechanical, electrical, plumbing and sewage systems, windows, window
frames, plate glass glazing, elevators, gutters and downspouts, structural
elements and the heating, ventilating and air conditioning systems (excepting
special air conditioning of Tenant's computer room(s) as set forth below);
provided, however, that Landlord shall not be required to perform repairs made
necessary by the negligence or abuse of such improvements or property by Tenant
or its employees, agents, subtenants or permittees. The cost of all maintenance
and repairs made by Landlord pursuant to this paragraph 9, including without
limitation maintenance contracts and supplies, materials, equipment and tools
used in such repairs and maintenance, shall be direct expenses and Tenant shall
pay its percentage share of such cost to Landlord as provided in paragraphs 4
and 5.
By entry hereunder Tenant accepts the Premises and being in good and
sanitary order, condition and repair. Subject to paragraphs 16 and 21, and
excepting repairs and maintenance required by this paragraph 9 to be made by
Landlord, Tenant at its cost shall keep the Premises and every part thereof in
good and sanitary order, condition and repair, and Tenant shall be solely
responsible for the cost and maintenance of, and electricity supplied to, any
special air conditioning for Tenant's computer facilities. Further, Tenant
shall repair (or, at the option of Landlord, reimburse Landlord if Landlord
elects to repair) damage to improvements or other property located on or about
the Project where such repairs are made necessary by the negligence of, or
abuse of such improvement or other property by, Tenant or its employees,
agents, subtenants or permittees. Tenant waives all rights and benefits under
California Civil Code Sections 1932(1), 1941, and 1942 and under any similar
law, statute or ordinance now or hereafter in effect.
10. LIENS. Tenant shall keep the Premises and the Project free from any
liens arising out of any work performed, materials furnished or obligations
incurred by Tenant, its agents, employees or contractors. Upon Tenant's receipt
of a preliminary twenty (20) day notice filed by a claimant pursuant to
California Civil code Section 3097, Tenant shall immediately provide Landlord
with a copy of such notice. Should any lien be recorded against the Project,
Tenant shall give immediate notice of such lien to Landlord. In the event that
Tenant shall not, within ten (10) days following the imposition of such lien,
cause the same to be released of record, Landlord shall have, in addition to
all other remedies provided herein and by law, the right, but no obligation, to
cause the same to be released by such means as it shall deem proper, including
payment of the claim giving rise to such lien. All sums paid by Landlord for
such purposes and all expenses (including attorney fees) incurred by it in
connection therewith, shall be payable to Landlord by Tenant on demand with
interest at the rate of twelve percent (12%) per annum or the maximum rate
permitted by law, whichever is less. Landlord shall have the right at all times
to post and keep posted on the Premises any notices permitted or required by
law, or which Landlord shall deem proper for the protection of Landlord, the
Premises and the Project and any other party having an interest therein, from
mechanics' and materialmen's liens and like liens. Tenant shall give Landlord
at least fifteen (15) days' prior notice of the date of commencement of any
construction on the Premises in order to permit the posting of such notices. In
the event Tenant is required to post an improvement bond with a public agency
in connection with any work performed by Tenant on or to the Premises, Tenant
shall include Landlord as an additional obligee.
11. INSURANCE. Tenant, at its sole cost and expense, shall keep in force
during the term (i) commercial general liability and property damage insurance
with a combined single limit of at least $2,000,000 per occurrence insuring
against personal or bodily injury to or death of persons occurring in, on or
about the Premises or Project and any and all liability of the insureds with
respect to the Premises or arising out of Tenant's maintenance, use or
occupancy of the Premises and all areas appurtenant thereto, (ii) direct
physical loss-special insurance covering the leasehold improvements in the
Premises and all of Tenant's equipment, trade fixtures, appliances, furniture,
furnishings, and personal property from time to time located in, on or about
the Premises, with coverage in the amount of the full replacement cost thereof,
and (iii) Worker's Compensation Insurance as required by law, together with
employer's liability coverage with a limit of not less than $1,000,000 for
bodily injury for each accident and for bodily injury by disease for each
employee. Tenant's commercial general liability and property damage insurance
and Tenant's Workers Compensation Insurance shall be endorsed to provide that
said insurance shall not be cancelled or reduced except upon at least thirty
(30) days prior written notice to Landlord. Further, Tenant's commercial
general liability and property damage insurance shall be primary and shall be
endorsed to provide that Landlord and XxXxxxxxxx Management Corporation, and
their respective partners, officers, directors and employees and such other
persons or entities as directed from time to time by Landlord shall be named as
additional insureds for all liability using ISO Bureau Form
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CG20111185 (or a successor form) or such other endorsement form reasonably
acceptable to Landlord; shall contain a severability of interest clause and a
cross-liability endorsement; shall be endorsed to provide that the limits and
aggregate apply per location using ISO Bureau Form CG25041185 (or a successor
form) or such other endorsement form reasonably acceptable to Landlord; and
shall be issued by an insurance company admitted to transact business in the
State of California and rated A+VIII or better in Best's Insurance Reports (or
successor report). The deductibles for all insurance required to be maintained
by Tenant hereunder shall be satisfactory to Landlord. The commercial general
liability insurance carried by Tenant shall specifically insure the performance
by Tenant of the indemnification provisions set forth in paragraph 17 of this
lease provided, however, nothing contained in this paragraph 11 shall be
construed to limit the liability of Tenant under the indemnification provisions
set forth in said paragraph 17. If Landlord or any of the additional insureds
named on any of Tenant's insurance, have other insurance which is applicable to
the covered loss on a contributing, excess or contingent basis, the amount of
the Tenant's insurance company's liability under the policy of insurance
maintained by Tenant shall not be reduced by the existence of such other
insurance. Any insurance carried by Landlord or any of the additional insureds
named on Tenant's insurance policies shall be excess and non-contributing with
the insurance so provided by Tenant.
Tenant shall, prior to the commencement of the term and at least
thirty (30) days prior to any renewal date of any insurance policy required to
be maintained by Tenant pursuant to this paragraph, provide Landlord with a
completed Certificate of Insurance, using a form acceptable in Landlord's
reasonable judgment, attaching thereto copies of all endorsements required to
be provided by Tenant under this lease. Tenant agrees to increase the coverage
or otherwise comply with changes in connection with said commercial general
liability, property damage, direct physical loss and Worker's Compensation
Insurance as Landlord or Landlord's lender may from time to time require.
Landlord shall obtain and keep in force a policy of policies of
insurance covering loss or damage to the Premises and Project, in the amount of
the full replacement value thereof, providing protection against those perils
included within the classification of "all risk" insurance, with increased cost
of reconstruction and contingent liability (including demolition), plus a
policy of rental income insurance in the amount of one hundred percent (100%)
of twelve (12) months' rent (including sums paid as additional rent) and such
other insurance as Landlord or Landlord's lender may from time to time require.
Landlord may, but shall not be obligated to, obtain flood and/or earthquake
insurance. Landlord shall have no liability to Tenant if Landlord elects not to
obtain flood and/or earthquake insurance. The cost of all such insurance
purchased by Landlord, plus any charges for deferred payment of premiums and
the amount of any deductible incurred upon any covered loss within the Project,
shall be direct expenses and Tenant shall pay to Landlord its percentage share
of such costs as provided in paragraphs 4(b) and 5(b). If the cost of insurance
is increased due to Tenant's use of the Premises, then Tenant shall pay to
Landlord upon demand the full cost of such increase.
Landlord and Tenant hereby mutually waive any and all rights of
recovery against one another for real property loss or damage occurring to the
Premises or the Project, or any part thereof, or to any personal property
therein, from perils insured against under fire and extended insurance and any
other property insurance policies existing for the benefit of the respective
parties so long as such insurance permits waiver of liability and contains a
waiver of subrogation without additional premiums.
If Tenant does not take out and maintain insurance as required
pursuant to this paragraph 11, Landlord may, but shall not be obligated to, take
out the necessary insurance and pay the premium therefor, and Tenant shall repay
to Landlord promptly on demand, as additional rent, the amount so paid. In
addition, Landlord may recover from Tenant and Tenant agrees to pay, as
additional rent, any and all reasonable expenses (including attorney fees) and
damages which Landlord may sustain by reason of the failure of Tenant to obtain
and maintain such insurance, it being expressly declared that the expenses and
damages of Landlord shall not be limited to the amount of the premiums thereon.
12. UTILITIES AND SERVICE. Landlord shall furnish to the Premises and to
the Project, during reasonable hours on generally recognized business days, to
be determined by Landlord, and subject to the rules and regulations of the
Project, reasonable quantities of water, gas and electricity suitable for the
intended use of the Premises and the Project, heat and air conditioning
required in Landlord's judgment for the comfortable use and occupation of the
Premises and the Project, and refuse collection and janitorial services. Tenant
agrees that at all times it will cooperate fully with Landlord and abide by all
regulations and requirements that Landlord may prescribe for the proper
functioning and protection of the heating, ventilating and air conditioning
systems. The cost of all utilities and services furnished by Landlord to the
Premises and to the Project pursuant to this paragraph 12 shall be direct
expenses and Tenant shall pay its percentage share of such costs to Landlord
as provided in paragraphs 4 and 5.
Landlord shall not be liable for, and Tenant shall not be entitled to
any abatement or reduction of rent by reason of, Landlord's failure to furnish
any of the foregoing services when such failure is caused by accident,
breakage, repairs, strikes, lockouts or other labor disturbances or labor
disputes of any character, governmental moratoriums, regulations or other
governmental actions, or by any other cause, similar or dissimilar, beyond the
reasonable control of Landlord. In addition, Tenant shall not be relieved from
the performance of any covenant or agreement in this lease because of any such
failure, and no eviction of Tenant shall result from such failure.
Tenant will not, without the written consent of Landlord, use any
apparatus or device in the Premises (including, without limitation, electronic
data processing machines, punch card machines or machines using current in
excess of 110 volts) which will in any way increase the amount of electricity,
water or air conditioning usually furnished or supplied to Premises in the
Project being used as general office space, or connect with electric current
(except through existing electrical outlets in the Premises) or with water
pipes any apparatus or device for the purpose of using electric current or
water. If Tenant shall require water or electric current in excess of that
usually furnished or supplied to premises in the Project being used as
general office space, then Tenant shall first obtain the written consent of
Landlord, which consent shall not be unreasonably withheld, and Tenant shall
pay to Landlord promptly on demand the full cost of such excess use.
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Landlord may cause an electric current or water meter to be installed in the
Premises in order to measure the amount of electric current or water consumed
for any such excess use. The cost of any such meter and of the installation,
maintenance and repair thereof, and all charges for such excess water and
electric current consumed (as shown by meters and at the rates then charged by
the furnishing public utility) plus any additional expense incurred by Landlord
in keeping account of electric current or water so consumed, shall be paid by
Tenant, and Tenant agrees to pay Landlord therefor promptly upon demand by
Landlord. Whenever heat-generating machines or equipment are used in the
Premises by Tenant which affect the temperature otherwise maintained,
supplementary air conditioning units in the Premises and the cost thereof,
including the cost of installation and the cost of operation and maintenance
thereof, shall be paid by Tenant to Landlord, as additional rent, upon demand by
Landlord.
13. TAXES AND OTHER CHARGES. All real estate taxes and assessments and
other taxes, fees and charges of every kind or nature, foreseen or unforeseen,
which are levied, assessed or imposed upon Landlord and/or against the Premises,
building, Common Area or Project or any part thereof by any federal, state,
county, regional, municipal or other governmental or quasi-governmental or
special district authority, together with any increases therein whether
resulting from increased rate and/or valuation, shall be a direct expense and
Tenant shall pay its percentage share of such costs to Landlord as provided in
paragraphs 4 and 5. By way of illustration and not limitation, "other taxes,
fees and charges" as used herein include any and all taxes payable by Landlord
(other than state and federal personal or corporate income taxes measured by the
net income of Landlord from all sources, premium taxes, and Landlord's
franchise, estate, inheritance and gift taxes), whether or not now customary or
within the contemplation of the parties hereto, (i) upon, allocable to, or
measured by the rent payable hereunder, including, without limitation, any gross
income or excise tax levied by the local, state or federal government with
respect to the receipt of such rent, (ii) upon or with respect to the
possession, leading, operation, management, maintenance, alteration, repair, use
or occupancy by Tenant of the Premises or any part thereof, (iii) upon or
measured by the value of Tenant's personal property or leasehold improvements
located in the Premises, (iv) upon this transaction or any document to which
Tenant is a party creating or transferring an interest or estate in the
Premises, (v) upon or with respect to vehicles, parking or the number of persons
employed in or about the Project, and (vi) any tax, license, franchise fee or
other imposition upon Landlord which is otherwise measured by or based in whole
or in part upon the Project or any portion thereof. If Landlord contests any
such tax, fee or charge, the cost and expense incurred by Landlord thereby
(including, but not limited to, costs of attorneys and experts) shall also be
direct expenses and Tenant shall pay its percentage share of such costs to
Landlord as provided in paragraph 4 and 5.
In the event the Premises and any improvements installed therein by
Tenant or Landlord are valued by the assessor disproportionately higher than
those of other tenants in the building or Project or in the event alterations or
improvements are made to the Premises, Tenant's percentage share of such taxes,
assessments, fees and/or charges shall be readjusted upward accordingly and
Tenant agrees to pay such readjusted share. Such determination shall be made by
Landlord from the respective valuation assigned in the assessor's work sheet or
such other information as may be reasonably available and Landlord's
determination thereof shall be conclusive.
Tenant agrees to pay, before delinquency, any and all taxes levied or
assessed during the term hereof upon Tenant's equipment, furniture, fixtures and
other personal property located in the Premises, including carpeting and other
property installed by Tenant notwithstanding that such carpeting or other
property has become a part of the Premises. If any of Tenant's personal property
shall be assessed with the Project, Tenant shall pay to Landlord, as additional
rent, the amounts attributable to Tenant's personal property within ten (10)
days after receipt of a written statement from Landlord setting forth the amount
of such taxes, assessments and public charges attributable to Tenant's personal
property.
14. ENTRY BY LANDLORD. Landlord reserves, and shall at all reasonable
times have, the right to enter the premises (i) to inspect the Premises, (ii) to
supply services to be provided by Landlord hereunder, (iii) to show the Premises
with reasonable advance notice of not less than 24 hours to prospective
purchasers, lenders or tenants and to put "for sale" or "for lease" signs
thereon, (iv) to post notice required or allowed by this lease or by law, (v) to
alter, improve or repair the Premises and any portion of the Project, and (vi)
to erect scaffolding and other necessary structures in or through the Premises
or the Project where reasonably required by the character of the work to be
performed. Landlord shall not be liable in any manner for any inconvenience,
disturbance, loss of business, nuisance or other damage arising from Landlord's
entry and acts pursuant to this paragraph 14 and Tenant shall not be entitled to
an abatement or reduction of rent if Landlord exercises any rights reserved in
this paragraph 14. For each of the foregoing purposes, Landlord shall at all
times have and retain a key with which to unlock all of the doors in, on and
about the Premises (excluding Tenant's vaults, safes and similar areas
designated in writing by Tenant in advance), and Landlord shall have the right
to use any and all means which Landlord may deem proper to open said doors in an
emergency in order to obtain entry to the Premises. Any entry by Landlord to the
Premises pursuant to this paragraph 14 shall not under any circumstances be
construed or deemed to be a forcible or unlawful entry into or a detainer of the
Premises or an eviction, actual or constructive, of Tenant from the Premises or
any portion thereof.
15. COMMON AREA; PARKING. Subject to the terms and conditions of this
lease and such rules and regulations as Landlord may from time to time
prescribe, Tenant and Tenant's employees and invitees shall, in common with
other occupants of the Project and their respective employees and invitees and
others entitled to the use thereof, have the nonexclusive right to use those
areas of the Common Area provided and designated by Landlord for the general use
and convenience of the occupants of the Project (which areas and facilities
shall include but not be limited to common lobbies, corridors, restrooms and
showers, telephone, electrical, janitorial and mechanical rooms, elevators,
stairwells, vertical duct shafts, sidewalks, parking, refuse, landscaping and
place areas, roofs, building exteriors, electrical, mechanical and HVAC systems,
and storage areas, which areas are referred to herein as "common area". This
right shall terminate upon the termination of this lease.
Landlord reserves the right from time to time to make changes in the
shape, size, location, amount and extent of the Common Area. Landlord shall also
have the right at any time to change the name, number
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or designation by which the Project is commonly known. Landlord further
reserves the right to promulgate such rules and regulations relating to the use
of the Common Area, and any part thereof, as Landlord may deem appropriate for
the best interests of the occupants of the Project. The rules and regulations
shall be binding upon Tenant upon delivery of a copy of them to Tenant and
Tenant shall abide by them and cooperate in their observance. Such rules and
regulations may be amended by Landlord from time to time, with or without
advance notice.
Tenant shall have the nonexclusive use of seventeen (17) parking spaces
(8 on the plaza level and 9 on the lower level) in the Common Area as designated
from time to time by Landlord. Landlord reserves the right at its sole option to
assign and label parking spaces, but it is specifically agreed that Landlord is
not responsible for policing any such parking spaces. Tenant shall not at any
time park or permit the parking of Tenant's trucks or other vehicles, or the
trucks or other vehicles of others, adjacent to loading areas so as to interfere
in any way with the use of such areas; nor shall Tenant at any time park or
permit the parking of Tenant's vehicles or trucks, or the vehicles or trucks of
Tenant's suppliers or others, in any portion of the Common Area not designated
by Landlord for such use by Tenant. Tenant shall not park or permit any
inoperative vehicle or equipment to be parked on any portion of the Common Area.
Landlord shall operate, manage and maintain the Common Area. The manner in
which the Common Area shall be operated, managed and maintained and the
expenditures for such operation, management and maintenance shall be at the
sole discretion of Landlord. The cost of such maintenance, operation and
management of the Common Area, together with the costs of security and
exterminator services and salaries and employee benefits (including union
benefits) of on-site and accounting personnel engaged in such maintenance and
operations management, shall be a direct expense and Tenant shall pay to
Landlord its percentage share of such cost as provided in paragraphs 4 and 5.
16. DAMAGE BY FIRE; CASUALTY. In the event the Premises are damaged by any
casualty which is covered under an insurance policy required to be maintained by
Landlord pursuant to paragraph 11, Landlord shall be entitled to the use of all
insurance proceeds and shall repair such damage as soon as reasonably possible
and this lease shall continue in full force and effect.
In the event the Premises are damaged by any casualty not covered under an
insurance policy required to be maintained pursuant to paragraph 11, Landlord
may, at Landlord's option, either (1) repair such damage, at Landlord's expense,
as soon as reasonably possible, in which event this lease shall continue in full
force and effect, or (ii) give written notice to Tenant within thirty (30) days
after the date of the occurrence of such damages of Landlord's intention to
cancel and terminate this lease as of the date of the occurrence of the damages;
provided, however, that if such damage is caused by an act or omission by Tenant
or its agent, servants or employees, then Tenant shall repair such damage
promptly at its sole cost and expense. In the event Landlord elects to terminate
this lease pursuant hereto, Tenant shall have the right within ten (10) days
after receipt of the required notice to notify Landlord in writing of Tenant's
intention to repair such damage at Tenant's expense, without reimbursement from
Landlord, in which event this lease shall continue in full force and effect and
Tenant shall proceed to make such repairs as soon as reasonably possible. If
Tenant does not give such notice within the ten (10) day period, this lease
shall be cancelled and terminated as of the date of the occurrence of such
damage. Under no circumstances shall Landlord be required to repair any injury
or damage to (by fire or other cause), or to make any restoration or replacement
of, any of Tenant's personal property, trade fixtures or property leased from
third parties, whether or not the same is attached to the Premises.
If the Premises are totally destroyed during the term from any cause
(including any destruction required by any authorized public authority), whether
or not covered by the insurance required under paragraph 11, this lease shall
automatically terminate as of the date of such total destruction; provided,
however, that if the Premises can reasonably and lawfully be repaired or
restored within twelve (12) months of the date of destruction to substantially
the condition existing prior to such destruction and if the proceeds of the
insurance payable to the Landlord by reason of such destruction are sufficient
to pay the cost of such repair or restoration, then the said insurance proceeds
shall be so applied, Landlord shall promptly repair and restore the Premises and
this lease shall continue, without interruption, in full force and effect. If
the Premises are totally destroyed during the last twelve (12) months of the
term, Landlord may at Landlord's option cancel and terminate this lease as of
the date of occurrence of such damage by giving written notice to Tenant of
Landlord's election to do so within thirty (30) days after the occurrence of
such damage.
If the Premises are partially or totally destroyed or damaged and Landlord
or Tenant repair them pursuant to this lease, the rent payable hereunder for the
period during which such damage and repair continues shall be abated only in
proportion to the square footage of the Premises rendered untenantable to Tenant
by such damage or destruction. Tenant shall have no claim against Landlord for
any damage, loss or expense suffered by reason of any such damage, destruction,
repair or restoration. The parties waive the provisions of California Civil Code
Sections 1932(2) and 1933(4) (which provisions permit the termination of a lease
upon destruction of the leased premises), and hereby agree that the provisions
of this paragraph 16 shall govern in the event of such destruction.
17. INDEMNIFICATION. Landlord shall not be liable to Tenant and Tenant
hereby waives all claims against Landlord for any injury to or death of any
person to or destruction of property in or about the Premises or the Project by
or from any cause whatsoever except the failure of Landlord to perform its
obligations under the lease where such failure has persisted for an unreasonable
period of time after notice of such failure. Without limiting the foregoing,
Landlord shall not be liable to Tenant for any injury to or death of any person
or damages to or destruction of property by reason of, or arising from, any
latent defect in the Premises or Project or the act or negligence of any other
tenant of the Project. Tenant shall immediately notify Landlord of any defect in
the Premises or Project.
Except as to injury to persons or damage to property the principal cause of
which is the failure by Landlord to observe any of the terms and conditions of
this lease, Tenant shall hold Landlord
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harmless from and indemnify and defend Landlord against any claim, liability,
loss, damage or expense (including attorney fees) arising out of any injury to
or death of any person or damage to or destruction of property occurring in, on
or about the Premises from any cause whatsoever or on account of the use,
condition, occupational safety or occupancy of the Premises. Tenant shall
further hold Landlord harmless from and indemnify and defend Landlord against
any claim, liability, loss, damage or expense (including attorney fees) arising
(i) from Tenant's use of the Premises or from the conduct of its business or
from any activity or work done, permitted or suffered by Tenant or its agents
or employees in or about the Premises or Project, (ii) out of the failure of
Tenant to observe or comply with Tenant's obligation to observe and comply with
laws or other requirements as set forth in paragraph 7, (iii) by reason of
Tenant's use, handling, storage, or disposal of toxic or hazardous materials or
waste, (iv) by reason of any labor or service performed for, or materials used
by or furnished to, Tenant or any contractor engaged by Tenant with respect to
the Premises, or (v) from any other act, neglect, fault or omission of Tenant
or its agents or employees.
The provisions of this paragraph 17 shall survive the
expiration or earlier termination of this lease.
18. ASSIGNMENT AND SUBLETTING. Tenant shall not voluntarily assign,
encumber or otherwise transfer its interest in this lease or in the Premises,
or sublease all or any part of the Premises, or allow any other person or
entity to occupy or use all or any part of the Premises, without first
obtaining Landlord's written consent, which consent shall not be unreasonably
withheld, and otherwise complying with the requirements of this paragraph 18.
Any assignment, encumbrance or sublease without Landlord's consent, shall
constitute a default.
If Tenant desires to sublet or assign all or any portion of the
Premises, Tenant shall give Landlord written notice thereof, specifying the
projected commencement date of the proposed sublet or assignment (which date
shall be not less than thirty (30) days or more than ninety (90) days after the
date of Landlord's receipt of such notice), the portions of the Premises
proposed to be sublet or assigned, the terms and conditions of the proposed
assignment or sublease (including the rent to be paid by the proposed assignee
or subtenant) and the name, address and telephone number of the proposed
assignee or subtenant. Tenant shall further provide Landlord with such other
information concerning the proposed assignee or subtenant, as requested by
Landlord. For a period of thirty (30) days after Landlord's receipt of Tenant's
written notice, Landlord shall have the option, exercisable by delivering
written notice to Tenant, to terminate this lease as of the date specified in
Landlord's written notice to Tenant, which date shall not be less than thirty
(30) days nor more than ninety (90) days after the date of Landlord's written
notice to Tenant. If Landlord exercises its option to terminate this lease as
provided in the foregoing sentence, Landlord may, if it so elects, enter into a
new lease for the Premises or any portion thereof with the proposed assignee or
subtenant or any other third party on such terms as Landlord and such proposed
assignee or subtenant or other third party may agree; in such event, Tenant
shall not be entitled to any portion of the profit, if any, which Landlord may
realize on account of such termination and reletting.
If Landlord does not elect to terminate this lease as provided
hereinabove in this paragraph 18 and if Landlord consents in writing to the
proposed assignment or sublet, Tenant shall be free to assign or sublet all or a
portion of the Premises subject to the following conditions: (i) any sublease
shall be on the same terms set forth in the notice given to Landlord; (ii) no
sublease shall be on the same terms set forth in the notice given to Landlord;
(ii) no sublease shall be valid and not subtenant shall take possession of the
sublet premises until an executed counterpart of such sublease has been
delivered to Landlord; (iii) no subtenant shall have a further right to sublet;
(iv) any sums or other economic consideration received by Tenant as a result of
such assignment or sublet (except rental or other payments received which are
attributable to the amortisation over the term of this lease of the cost of
leasehold improvement constructed for such assignees or subtenant, and brokerage
fees) whether denominated rentals or otherwise, which exceed, in the aggregate,
the total sums which Tenant is obligated to pay Landlord under this lease
(prorated to reflect obligations allocable to that portion of the Premises
subject to such sublease), shall be payable to Landlord as additional rent under
this lease without affecting or reducing any other obligations of Tenant
hereunder; (v) no sublet or assignment shall release Tenant of Tenant's
obligation or alter the primary liability of Tenant to pay the rent and to
perform all other obligations to be performed by Tenant hereunder; and (vi) any
assignee or subtenant must expressly agree to assume and perform all of the
covenants and conditions of Tenant under this lease. Tenant shall pay to
Landlord promptly upon demand as additional rent, Landlord's actual attorneys'
fees and other costs incurred for reviewing, processing or documenting any
requested assignment or sublease, whether or not Landlord's consent is granted.
Tenant shall not be entitled to assign this lease or sublease all or any part of
the Premises (and any attempt to do so shall be voidable by Landlord) during any
period in which Tenant is in default under this lease.
If Tenant is a partnership, a withdrawal or change, voluntary
or involuntary or by operation of law, of any general partner or the
dissolution of the partnership shall be deemed an assignment of this lease
subject to all the conditions of this paragraph 18. If Tenant is a corporation
any dissolution, merger, consolidation or other reorganization of Tenant or the
sale or other transfer of a controlling percentage of the capital stock of
Tenant or the sale of more than fifty percent (50%) of the value of Tenant's
assets shall be an assignment of this lease subject to all the conditions of
this paragraph 18. The term "controlling percentage" means the ownership of,
and the right to vote, stock possessing more than 50% of the total combined
voting power of all classes of Tenant's capital stock issued, outstanding and
entitled to vote. This paragraph shall not apply if Tenant is a corporation the
stock of which is traded through an exchange.
The acceptance of rent by Landlord from any other person shall
not be deemed to be a waiver by Landlord of any provision hereof. Consent to
one assignment or sublet shall not be deemed consent to any subsequent
assignment or sublet. In the event of default by any assignee of Tenant or any
successor of Tenant in the performance of any of the terms hereof, Landlord may
proceed directly against Tenant without the necessity of exhausting remedies
against such assignee or successor. Landlord may consent to subsequent
assignments or sublets of this lease or amendments or modifications to this
lease with assignees of Tenant, without notifying Tenant, or any successor of
Tenant, and without obtaining its or their consent thereto and such action
shall not relieve Tenant of liability under this lease.
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No interest of Tenant in this lease shall be assignable by 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: (i) if Tenant is or becomes bankrupt or insolvent, makes an
assignment for the benefit of creditors or institutes a proceeding 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; (ii) if a writ of attachment or
execution is levied on this lease; or (iii) 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.
Tenant immediately and irrevocably assigns to Landlord, as security
for Tenant's obligations under this lease, all rent from any subletting of all
or a part of the Premises as permitted by this lease, and Landlord, as assignee
and as attorney-in-fact for Tenant, or a receiver of Tenant appointed on
Landlord's application, may collect such rent and apply it toward Tenant's
obligations under this lease; except that, until the occurrence of an act or
default by Tenant, Tenant shall have the right to collect such rent, subject to
promptly forwarding to Landlord any portion thereof to which Landlord is
entitled pursuant to this paragraph 18.
19. DEFAULT. The occurrence of any of the following shall constitute a
default by Tenant: (i) failure of Tenant to pay any rent or other sum payable
hereunder within three (3) days of when due; (ii) abandonment of the Premises
(Tenant's failure to occupy and conduct business in the Premises for fourteen
(14) consecutive days shall constitute an abandonment of the Premises); (iii)
failure of Tenant to deliver to Landlord any instrument, assurance, financial
statement, subordination agreement or certificate of estoppel required under
this Lease within the time period specified for such performance if the failure
continues for five (5) days after written notice of the failure from Landlord
to Tenant; or (iv) failure of Tenant to perform any other obligation under this
lease if the failure to perform is not cured within thirty (30) days after
written notice thereof has been given to Tenant (provided that if such default
cannot reasonably be cured within thirty (30) days, Tenant shall not be in
default if Tenant commences to cure such failure to perform within the thirty
(30) day period and diligently and in good faith continues to cure the failure
to perform). The notice referred to in clauses (iii) and (iv) above shall
specify the failure to perform and the applicable lease provision and shall
demand that Tenant perform the provisions of this lease within the applicable
period of time. No notice shall be deemed a forfeiture or termination of this
lease unless Landlord so elects in the notice. No notice shall be required the
event of abandonment or vacation of the Premises.
In addition to the above, the occurrence of any of the following
events shall also constitute a default by Tenant: (i) Tenant fails to pay its
debts as they become due or admits in writing its inability to pay its debts,
or makes a general assignment for the benefit of creditors (for purposes of
determining whether Tenant is not paying its debts as they become due, a debt
shall be deemed overdue upon the earliest to occur of the following: thirty
(30) days from the date a statement therefor has been rendered; the date on
which any action or proceeding therefor is commenced; or the date on which a
formal notice of default or demand has been sent); (ii) Tenant fails to
furnish to Landlord a schedule of Tenant's aged accounts payable within ten
(10) days after Landlord's written request; (iii) any financial statements
given to Landlord by Tenant, any assignee of Tenant, subtenant of Tenant, any
guarantor or successor in interest of Tenant (including, without limitation,
any schedule of Tenant's aged accounts payable) are materially false; or (iv)
any financial statement or other financial information furnished by Tenant
pursuant to the provisions of this lease or at the request of Landlord
evidences that either Tenant's net worth or its net assets are at least
twenty-five percent (25%) less than the net worth or net assets shown in either
the immediately prior financial statement or the financial statement of Tenant
furnished at the time of execution of this lease, and Tenant fails to furnish
promptly to Landlord, after notice from Landlord to Tenant, an additional
security deposit in cash equivalent to the aggregate of the basic rent and
direct expense, (without regard to any rent abatement) payable hereunder for
the twelve (12) full calendar months immediately preceding such notice. At any
time during the term of this lease Landlord, at Landlord's option, shall have
the right to receive from Tenant, upon Landlord's request, a current annual
balance sheet for Landlord's review.
In the event of a default by Tenant, then Landlord, in addition to
any other rights and remedies of Landlord at law or in equity, shall have the
right either to terminate Tenant's right to possession of the Premises (and
thereby terminate this lease) or, from time to time and without termination of
this lease, to relet the Premises or any part thereof for the account and in
the name of Tenant for such term and on such terms and conditions as Landlord
in its sole discretion may deem advisable, with the right to make alterations
and repairs to the Premises.
Should Landlord elect to keep this lease in full force and effect,
Landlord shall have the right to enforce all of Landlord's rights and remedies
under this lease, including but not limited to the right to recover and to
relet the Premises and such other rights and remedies as Landlord may have
under California Civil Code Section 1951.4 (or successor Code section) or any
other California statute. If Landlord relets the Premises, then Tenant shall
pay to Landlord, as soon as ascertained, the costs and expenses incurred by
Landlord in such reletting and in making alterations and repairs. Rentals
received by Landlord from such reletting shall be applied (i) to the payment of
any indebtedness due hereunder, other than basic rent and direct expenses, from
Tenant to Landlord; (ii) to the payment of the cost of any repairs necessary to
return the Premises to good condition, normal wear and tear excepted, including
the cost of alterations and the cost of storing any of Tenant's property left
on the Premises at the time of reletting; and (iii) to the payment of basic
rent or direct expenses due and unpaid hereunder. The residue, if any, shall be
held by Landlord and applied in payment of future rent or damages in the event
of termination as the same may become due and payable hereunder and the
balance, if any at the end of the term of this lease, shall be paid to Tenant.
Should the basic rent and direct expenses received from time to time from such
reletting during any month be less than that agreed to be paid during that
month by Tenant hereunder, Tenant shall pay such deficiency to Landlord. Such
deficiency shall be calculated and paid monthly. No such reletting of the
Premises by Landlord shall be construed as an election
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on its part to terminate this lease unless a notice of such intention is given
to Tenant or unless the termination hereof is decreed by a court of competent
jurisdiction. Notwithstanding any such reletting without termination, Landlord
may at any time thereafter elect to terminate this lease for such previous
breach, provided it has not been cured.
Should Landlord at any time terminate this lease for any breach, in
addition to any remedy it may have, it shall have the immediate right of entry
and may remove all persons and property from the Premises and shall have all the
rights and remedies of a landlord provided by California Civil Code Section
1951.2 or any successor code section. Upon such termination, in addition to all
its other rights and remedies, Landlord shall be entitled to recover from Tenant
all damages it may incur by reason of such breach, including the cost of
recovering the Premises and including (i) the worth at the time of award of the
unpaid rent which had been earned at the time of termination; (ii) the worth at
the time of award of the amount by which the unpaid rent which would have been
earned after termination until the time of award exceeds the amount of such
rental loss that Tenant proves could have been reasonably avoided; (iii) the
worth at the time of the award of the amount by which the unpaid rent for the
balance of the term after the time of award exceeds the amount of such rental
loss that Tenant proves could be reasonably avoided; (iv) any other amount
necessary to compensate Landlord for all the detriment proximately caused by
Tenant's failure to perform its obligations under this lease or which in the
ordinary course of events would be likely to result therefrom. The "worth at the
time of award" of the amounts referred to in (i) and (ii) above is computed by
allowing interest at the rate of twelve percent (12%) per annum. The "worth at
the time of award" of the amount referred to in (iii) above shall be computed by
discounting such amount at the discount rate at the federal reserve bank of San
Francisco at the time of award plus one percent (1%). Tenant waives the
provisions of Section 1179 of the California Code of Civil Procedures (which
Section allows Tenant to petition a court of competent jurisdiction for relief
against forfeiture of this lease). Property removed from the Premises may be
stored in a public or private warehouse or elsewhere at the sole cost and
expense of Tenant. In the event that Tenant shall not immediately pay the cost
of storage of such property after the same has been stored for a period of
thirty (30) days or more, Landlord may sell any or all thereof at a public or
private sale in such manner and at such time and place that Landlord, in its
sole discretion, may deem proper, without notice to or demand upon Tenant.
20. LANDLORD'S RIGHTS TO CURE TENANT'S DEFAULT. Landlord, at any time
after Tenant commits a default, may, but shall not be obligated to, cure the
default at Tenant's cost. If Landlord at any time, by reason of Tenant's
default, pays any sum or does any act that requires the payment of any sum, the
sum paid by Landlord shall be due immediately from Tenant to Landlord and shall
bear interest at the rate of twelve percent (12%) per annum or the maximum rate
permitted by law, whichever is less, from the date the sum is paid by Landlord
until Landlord is reimbursed by Tenant. Amounts due Landlord hereunder shall be
additional rent.
21. EMINENT DOMAIN. If all or any part of the Premises shall be taken by
any public or quasi-public authority; under the power of eminent domain or
conveyance in lieu thereof, this lease shall terminate as to any portion of the
Premises so taken or conveyed on the date when title vests in the condemnor, and
Landlord shall be entitled to any and all payments, income, rent, award or any
interest therein whatsoever which may be paid or made in connection with such
taking or conveyance. Tenant shall have no claim against Landlord or otherwise
for the value of any unexpired term of this lease. Notwithstanding the
foregoing, Tenant shall be entitled to any compensation for depreciation to and
cost of removal of Tenant's equipment and fixtures and any compensation for its
relocation expenses necessitated by such taking, but in each case only to the
extent the condemning authority makes a separate award therefor or specifically
identifies a portion of the award as being therefor. Each party waives the
provisions of Section 1245.130 of the California Code of Civil Procedure (which
section allows either party to petition the Superior Court to terminate this
lease in the event of a partial taking of the Premises).
If any action or proceeding is commenced for such taking of the Premises or
any portion thereof or of any other space in the Project, or if Landlord is
advised in writing by any entity or body having the right of power of
condemnation of its intention to condemn the Premises or any portions thereof or
of any other space in the Project, and Landlord shall decide to discontinue the
use and operation of the Project or decide to demolish, alter or rebuild the
Project, then Landlord shall have the right to terminate this lease by giving
Tenant written notice thereof within sixty (60) days of the earlier of the date
of Landlord's receipt of such notice of intention to condemn or the commencement
of said action or proceeding. Such termination shall be effective as of the last
day of the calendar month next following the month in which such notice is given
or the date on which title shall vest in the condemnor, whichever occurs first.
In the event of a partial taking, or conveyance in lieu thereof, of the
Premises and fifty percent or more of the number of square feet in the Premises
are taken, then Tenant may terminate this lease. Any election by Tenant to so
terminate shall be by written notice given to Landlord within sixty (60) days
from the date of such taking or conveyance and shall be effective on the last
day of the calendar month next following the month in which such notice is given
or the date on which title shall vest in the condemnor, whichever occurs first.
If a portion of the Premises is taken by power of eminent domain or
conveyance in lieu thereof and neither Landlord nor Tenant terminates this lease
as provided above, then this lease shall continue in full force and effect as to
the part of the Premises not so taken or conveyed and all payments or rent shall
be apportioned as of the date of such taking or conveyance so that thereafter
the amounts to be paid by Tenant shall be in the ratio that the area of the
portion of the Premises not so taken bears to the total area of the Premises
prior to such taking.
22. NOTICE AND COVENANT TO SURRENDER. On the last day of the term or on
the effective date of any earlier termination, Tenant shall surrender to
Landlord the Premises in its condition existing as of the commencement of the
term and, except as otherwise provided by Landlord pursuant to the terms of
paragraph 8 of this lease, all of the improvements and alterations made to the
Premises in their condition existing as of the date of completion of
construction and/or installation (normal wear and tear excepted), with all
originally painted interior walls washed or repainted if marked or damaged,
interior vinyl covered walls cleaned and
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repaired or replaced if marked or damaged, all carpets shampooed and cleaned,
and all floors cleaned and waxed; all to the reasonable satisfaction of
Landlord. On or prior to the last day of the term or the effective date of any
earlier termination, Tenant shall remove all of Tenant's personal property and
trade fixtures, together with improvements or alterations that Tenant is
obligated to remove pursuant to the provisions of paragraph 8 of this lease,
from the Premises, and all such property not removed shall be deemed abandoned.
In addition, on or prior to the expiration or earlier termination of this
lease, Tenant shall remove, at Tenant's sole cost and expense, all telephone,
other communication, computer and any other cabling and wiring of any sort
installed in the space above the suspended ceiling of the Premises or anywhere
else in the Premises and shall promptly repair any damage to the suspended
ceiling, lights, light fixtures, walls and any other part of the Premises
resulting from such removal.
If the Premises are not surrendered as required in this paragraph 22,
Tenant shall indemnify Landlord against all loss, liability and expense
(including, but not limited to, attorney fees) resulting from the failure by
Tenant in so surrendering the Premises, including, without limitation, any
claims made by any succeeding tenants. It is agreed between Landlord and
Tenant that the provisions of this paragraph 22 shall survive termination of
this lease.
23. TENANT'S QUITCLAIM. At the expiration or earlier termination of this
lease, Tenant shall execute, acknowledge and deliver to Landlord, within ten
(10) days after written demand from Landlord to Tenant, any quitclaim deed or
other document required to remove the cloud or encumbrance created by this
lease from the real property of which the Premises are a part. This obligation
shall survive said expiration or termination.
24. HOLDING OVER. Any holding over after the expiration or termination of
this lease with the written consent of Landlord shall be construed to be a
tenancy from month-to-month at the monthly rent agreed upon by Landlord and
Tenant, but in no event less than the monthly rent payable under this lease for
the last lease month before the date of such expiration or termination. All
provisions of this lease, except (i) as modified by the preceding sentence and
(ii) those provisions pertaining to the term, expansion rights and any option
to extend, shall apply to the month-to-month tenancy.
If Tenant shall retain possession of the Premises or any part thereof
without Landlord's written consent following the expiration or sooner
termination of this lease for any reason, then Tenant shall pay to Landlord for
each day of such retention one hundred fifty percent (150%) of the amount of the
daily rental in effect during the last lease month prior to the date of such
expiration or termination. The term "daily rental" as used in the preceding
sentence shall mean the monthly rental divided by thirty. Tenant shall also
indemnify and hold Landlord harmless from any loss, liability and expense
(including, but not limited to, attorneys fees) resulting from delay by Tenant
in surrendering the Premises, including without limitation any claims made by
any succeeding tenant founded on such delay. Acceptance of rent by Landlord
following expiration or termination shall not constitute a renewal of this
lease, and nothing contained in this paragraph shall waive Landlord's right of
re-entry or any other right. Tenant shall be only a Tenant at sufferance,
whether or not Landlord accepts any rent from tenant, while Tenant is holding
over without Landlord's written consent.
The provisions of this paragraph 24 are in addition to, and do not
affect, Landlord's right of re-entry or other rights hereunder or provided by
law. Nothing in this paragraph 24 shall be construed as implied consent by
Landlord to any holding over by Tenant. Landlord expressly reserves the right
to require Tenant to surrender possession of the Premises to Landlord as
provided in this Lease on expiration or other termination of this Lease. The
provisions of this paragraph 24 shall not be considered to limit or constitute
a waiver of any other rights or remedies of Landlord provided in this Lease or
at law. The provisions of this paragraph 24 shall survive the expiration or
early termination of this lease.
25. SUBORDINATION. In the event Landlord's title or leasehold interest is
now or hereafter encumbered in order to secure a loan to Landlord, Tenant
shall, at the request of Landlord or the lender, execute in writing an
agreement subordinating its rights under this lease to the lien of such
encumbrance, or, if so requested, agreeing that the lien of lender's
encumbrance shall be or remain subject and subordinate to the rights of Tenant
under this lease. Tenant hereby irrevocably appoints Landlord the
attorney-in-fact of Tenant to execute, deliver and record any such instrument
or instruments for and in the name and on behalf of Tenant. Notwithstanding any
such subordination, Tenant's possession under this lease shall not be disturbed
if Tenant is not in default and so long as Tenant shall pay all amounts due
hereunder and otherwise observe and perform all provisions of this lease. In
addition, if in connection with any such loan the lender shall request
reasonable modifications in this lease as a condition to such financing, Tenant
will not unreasonably withhold, delay or defer its consent thereof, provided
that such modifications do not increase the obligations of Tenant hereunder or
materially adversely affect the leasehold interest hereby created or Tenant's
rights hereunder.
26. CERTIFICATE OF ESTOPPEL. Tenant shall, within five (5) calendar days
after request thereof, execute and deliver to Landlord, in recordable form, a
certificate stating that the lease is unmodified and in full force and effect,
or in full force and effect as modified and stating the modifications. The
certificate shall also state the amount of the monthly rent, the date to which
monthly rent has been paid in advance, the amount of the security deposit
and/or prepaid monthly rent, and, if the request is made by Landlord, shall
include such other items as Landlord or Landlord's lender may reasonably
request. Failure to deliver such certificates within such time shall constitute
a conclusive acknowledgement by Tenant that the lease is in full force and
effect and has not been modified except as may be represented by Landlord in
the certificate. Any such certificate requested by Landlord may be conclusively
relied upon by any prospective purchaser or encumbrancer of the Premises or
Project. If Tenant fails to execute and deliver to the Landlord a completed
certificate as required by this paragraph 26, Tenant hereby appoints the
Landlord as his attorney-in-fact to execute and deliver such certificate for
and on behalf of the Tenant. Further, within five (5) calendar days following
written request made from time to time by Landlord, Tenant shall furnish to
Landlord current financial statements of Tenant.
27. SALE BY LANDLORD. In the event the original Landlord hereunder, or
any successor owner of the Project or Premises, shall sell or convey the
Project or Premises, all liabilities and obligations on the part
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of the original Landlord, or such successor owner, under this lease accruing
thereafter shall terminate, and thereupon all such liabilities and obligations
shall be binding upon the new owner. Tenant agrees to attorn to such new owner
and to look solely to such new owner for performance of any and all such
liabilities and obligations.
28. ATTORNMENT TO LENDER OR THIRD PARTY. In the event the interest of
Landlord in the land and buildings in which the Premises are located (whether
such interest of Landlord is a fee title interest or a leasehold interest) is
encumbered by deed of trust, and such interest is acquired by a lender or any
other third party through judicial foreclosure or by exercise of a power or
sale at a private trustee's foreclosure sale, Tenant hereby agrees to release
Landlord of any obligation arising on or after any such foreclosure sale and
to attorn to the purchaser at any such foreclosure sale and to recognize such
purchaser as the Landlord under this lease.
29. DEFAULT BY LANDLORD. Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord within a reasonable time, but
in no event earlier than thirty (30) days after written notice by Tenant to
Landlord and to the holder of any first mortgage or deed of trust covering the
Premises specifying wherein Landlord has failed to perform such obligations;
provided, however, that if the nature of Landlord's obligations is such that
more than thirty (30) days are required for performance, then Landlord shall
not be in default if Landlord commences performance within such thirty (30) day
period and thereafter diligently prosecutes the same to completion.
If Landlord is in default of this lease, Tenant's sole remedy shall
be to institute suit against Landlord in a court of competent jurisdiction and
Tenant shall have no right to offset any sums expended by Tenant as a result of
Landlord's default against future rent and other sums due and payable pursuant
to this lease. If Landlord is in default of this lease, and as a consequence
Tenant recovers a money judgment against Landlord, the judgment shall be
satisfied only out of the proceeds of sale received on execution of the
judgment and levy against the right, title and interest of Landlord in the
Project of which the Premises are a part, and out of rent or other income from
such real property receivable by Landlord or out of the consideration received
by Landlord from the sale or other disposition of all or any part of Landlord's
right, title and interest in the Project of which the Premises are a part.
Neither Landlord nor any of the partners, comprising the partnership designated
as Landlord shall be personally liable for any deficiency.
30. CONSTRUCTION CHANGES. It is understood that the description of the
Premises and the location of ductwork, plumbing and other facilities therein
are subject to such changes as Landlord or Landlord's architect determines to
be desirable in the course of construction of the Premises and/or the
improvements constructed or being constructed therein, and no such change nor
any change in plans for any other portions of the Project, shall affect this
lease or entitle Tenant to any reduction of rent hereunder or result in any
liability of Landlord to Tenant.
31. MEASUREMENT OF PREMISES. Tenant understands and agrees that any
reference to square footage of the Premises is approximate only and includes
all interior partitions and columns, one-half of exterior walls, and one-half
of the partitions separating the Premises from the rest of the Project,
Tenant's proportionate share of the Common Area and, if applicable, 25% of the
area of the balcony adjoining the Premises. Tenant waives any claim against
Landlord regarding the accuracy of any such measurement and agrees that there
shall not be any adjustment in basic rent or direct expenses or other amounts
payable hereunder by reason of inaccuracies in such measurement.
32. ATTORNEY FEES. If either party commences an action against the other
party arising out of or in connection with this lease, the prevailing party
shall be entitled to have and recover from the losing party all expenses of
litigation, including, without limitation, travel expenses, attorney fees,
expert witness fees, trial and appellate court costs, and deposition and
transcript expenses. If either party becomes a party to any litigation
concerning this lease or concerning the Premises or the Project, by reason of
any act or omission of the other party or its authorized representatives, the
party that causes the other party to become involved in this litigation shall
be liable to the other party for all expenses of litigation, including, without
limitation, travel expenses, attorney fees, expert witness fees, trial and
appellate court costs, and deposition and transcript expenses.
33. SURRENDER. The voluntary or other surrender of this lease or the
Premises by Tenant, or a mutual cancellation of this lease, shall not work a
merger, and at the option of Landlord shall either terminate all or any
existing subleases or subtenancies or operate as an assignment to Landlord of
all or any such subleases or subtenancies.
34. WAIVER. No delay or omission in the exercise of any right or remedy
of Landlord on any default by Tenant shall impair such right or remedy or be
construed as a waiver. The receipt and acceptance by Landlord of delinquent
rent or other payments shall not constitute a waiver of any other default and
acceptance of partial payments shall not be construed as a waiver of the
balance of such payment due. No act or conduct of Landlord, including, without
limitation, the acceptance of keys to the Premises, shall constitute an
acceptance of the surrender of the Premises by Tenant before the expiration of
the term. Only a written notice from Landlord to Tenant shall constitute
acceptance of the surrender of the Premises and accomplish a termination of
this 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 this
lease.
35. EASEMENTS; AIRSPACE RIGHTS. Landlord reserves the right to alter the
boundaries of the Project and grant easements and dedicate for public use
portions of the Project without Tenant's consent, provided that no such grant
or dedication shall interfere with Tenant's use of the Premises or otherwise
cause Tenant to incur cost or expense. From time to time, and upon Landlord's
demand, Tenant shall execute, acknowledge and
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Persons: one or more human beings, or legal entities or other
artificial persons, including, without limitation, partnerships, corporations,
trusts, estates, associations and any combination of human being and legal
entities.
Provisions: any term, agreement, covenant, condition, clause,
qualification, restriction, reservation or other stipulation in the lease that
defines or otherwise controls, establishes or limits the performance required
or permitted by either party.
Rent: basic rent, direct expenses, additional rent, and all other
amounts payable by Tenant to Landlord required by this lease or arising by
subsequent actions of the parties made pursuant to this lease.
Words used in any gender include other genders. If there be more than
one Tenant, the obligations of Tenant hereunder are joint and several. All
provisions, whether covenants or conditions, on the part of Tenant shall be
deemed to be both covenants and conditions. The paragraph headings are for
convenience of reference only and shall have no effect upon the construction or
interpretation of any provision hereof.
41. TIME. Time is of the essence of this lease and of each and all of its
provisions.
42. INTEREST ON PAST DUE OBLIGATIONS; LATE CHARGE. Any amount due from
Tenant to Landlord hereunder which is not paid when due shall bear interest at
the rate of ten percent (10%) per annum from when due until paid, unless
otherwise specifically provided herein, but the payment of such interest shall
not excuse or cure any default by Tenant under this lease. In addition, Tenant
acknowledges that late payment by Tenant to Landlord of basic rent or direct
expenses or of any other amount due Landlord from Tenant will cause Landlord to
incur costs not contemplated by this lease, the exact amount of such costs
being extremely difficult and impractical to fix. Such costs include, without
limitation, processing and accounting charges, and late charges that may be
imposed on Landlord; e.g., by the terms of any encumbrance and note secured by
any encumbrance covering the Premises. Therefore, if any such payment due from
Tenant is not received by Landlord when due, Tenant shall pay to Landlord an
additional sum of five percent (5%) of the overdue payment as a late charge.
The parties agree that this late charge represents a fair and reasonable
estimate of the costs that Landlord will incur by reason of late payment by
Tenant. Acceptance of any late charge shall not constitute a waiver of Tenant's
default with respect to the overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies available to Landlord. No
notice to Tenant of failure to pay shall be required prior to the imposition of
such interest and/or late charge. Any interest and late charge imposed pursuant
to this paragraph shall be and constitute additional rent payable by Tenant to
Landlord.
43. ENTIRE AGREEMENT. This lease, including any exhibits and attachments,
constitutes the entire agreement between Landlord and Tenant relative to the
Premises and this lease and the exhibits and attachments may be altered,
amended or revoked only by an instrument in writing signed by both Landlord and
Tenant. Landlord and Tenant agree hereby that all prior or contemporaneous oral
agreements between and among themselves or their agents or representatives
relative to the leasing of the Premises are merged in or revoked by this lease.
44. CORPORATE AUTHORITY. If Tenant is a corporation, each individual
executing this lease on behalf of the corporation represents and warrants that
he is duly authorized to execute and deliver this lease on behalf of the
corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation and that this lease is binding upon said
corporation in accordance with its terms. If Tenant is a corporation, Tenant
shall deliver to Landlord, within ten (10) days of the execution of this lease,
a copy of the resolution of the Board of Directors of Tenant authorizing the
execution of this lease and naming the officers that are authorized to execute
this lease on behalf of Tenant, which copy shall be certified by Tenant's
secretary as correct and in full force and effect.
45. RECORDING. Neither Landlord nor Tenant shall record this lease or a
short form memorandum hereof without the consent of the other.
46. REAL ESTATE BROKERS. Each party represents and warrants to the other
party that it has not had dealings in any manner with any real estate broker,
finder or other person with respect to the Premises and the negotiation and
execution of this lease except Xxxxx Xxxxxx Associates. Except for the
commissions and fees to be paid to Xxxxx Xxxxxx Associates as provided in this
paragraph, each party shall indemnify and hold harmless the other party from all
damage, loss, liability and expense (including attorneys' fees and related
costs) arising out of or resulting from any claims for commissions or fees that
have been or may be asserted against the other party by any broker, finder or
other person with whom Tenant or Landlord, respectively, has dealt, or
purportedly has dealt, in connection with the Premises and the negotiation and
execution of this lease. Landlord shall pay broker leasing commissions to Xxxxx
Xxxxxx Associates in connection with the Premises and the negotiation and
execution of this lease, to the extent agreed to between Landlord and Xxxxx
Xxxxxx Associates. Landlord and Tenant agree that Landlord shall not be
obligated to pay any broker leasing commissions, consulting fees, finder fees or
any other fees or commissions arising out of or relating to any extended term of
this lease or to any expansion or relocation of the Premises at any time.
47. EXHIBITS AND ATTACHMENTS. All exhibits and attachments to this lease
are a part hereof.
48. ENVIRONMENTAL MATTERS.
A. TENANT'S COVENANTS REGARDING HAZARDOUS MATERIALS.
(1) Hazardous Materials Handling. Tenant, its agents, invitees,
employees, contractors, sublessees, assigns and/or successors shall not use,
store, dispose, release or otherwise cause to be present or permit the use,
storage, disposal, release or presence of Hazardous Materials (as defined
below) on or about the Premises or Project. As used herein "Hazardous
Materials" shall mean any petroleum or pretroleum by-products, flammable
explosives, asbestos, urea formaldehyde, radioactive materials or waste and
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any "hazardous substance", "hazardous waste", "hazardous materials", "toxic
substance" or "toxic waste" as those terms are defined under the provisions of
the California Health and Safety Code and/or the provisions of the
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.
Section 9601 et seq.), as amended by the Superfund Amendments and
Reauthorization Act of 1996 (42 U.S.C. Section 9601 et seq.), or any other
hazardous or toxic substance, material or waste which is or becomes regulated
by any local governmental authority, the State of California or any agency
thereof, or the United States Government or any agency thereof.
(2) NOTICES. Tenant shall immediately notify Landlord in writing of:
(i) any enforcement, cleanup, removal or other governmental or regulatory action
instituted, completed or threatened pursuant to any law, regulation or ordinance
relating to the industrial hygiene, environmental protection or the use,
analysis, generation, manufacture, storage, presence, disposal or transportation
of any Hazardous Materials (collectively "Hazardous Materials Laws"); (ii) any
claim made or threatened by any person against Tenant, the Premises, Project or
buildings within the Project relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from or claimed to result from any
Hazardous Materials; and (iii) any reports made to any environmental agency
arising out of or in connection with any Hazardous Materials in, on or removed
from the Premises, Project or buildings within the Project, including any
complaints, notices, warnings, reports or asserted violations in connection
therewith. Tenant shall also supply to Landlord as promptly as possible, and in
any event within five (5) business days after Tenant first receives or sends the
same, with copies of all claims, reports, complaints, notices, warnings or
asserted violations relating in any way to the Premises, Project or buildings
within the Project or Tenant's use thereof. Tenant shall promptly deliver to
Landlord copies of hazardous waste manifests reflecting the legal and proper
disposal of all Hazardous Materials removed from the Premises.
B. INDEMNIFICATION OF LANDLORD. Tenant shall indemnify, defend (by
counsel acceptable to Landlord), protect, and hold Landlord, and each of
Landlord's partners, employees, agents, attorneys, successors and assigns, free
and harmless from and against any and all claims, liabilities, penalties,
forfeitures, losses or expenses (including attorneys' fees) for death of or
injury to any person or damage to any property whatsoever (including water
tables and atmosphere), arising from or caused in whole or in part, directly or
indirectly, by (i) the presence in, on, under or about the Premises, Project or
buildings within the Project or discharge in or from the Premises, Project or
buildings within the Project of any Hazardous Materials or Tenant's use,
analysis, storage, transportation, disposal, release, threatened release,
discharge or generation of Hazardous Materials to, in, on, under, about or from
the Premises, Project or buildings within the Project, or (ii) Tenant's failure
to comply with any Hazardous Materials Laws whether knowingly, unknowingly,
intentionally or unintentionally. Tenant's obligations hereunder shall include,
without limitation, and whether forseeable or unforseeable, all costs of any
required or necessary repair, cleanup or detoxification or decontamination of
the Premises, Project or buildings within the Project, and the preparation and
implementation of any closure, remedial action or other required plans in
connection therewith. In addition, Tenant shall reimburse Landlord for (i)
losses in or reductions to rental income resulting from Tenant's use, storage or
disposal of Hazardous Materials, (ii) all costs of refitting or other
alterations to the Premises, Project or buildings within the Project required as
a result of Tenant's use, storage, or disposal of Hazardous Materials including,
without limitation, alterations required to accommodate an alternate use of the
Premises, Project or buildings within the Project, and (iii) any diminution in
the fair market value of the Premises, Project or buildings within the Project
caused by Tenant's use, storage, or disposal of Hazardous Materials. For
purposes of this paragraph 48, any acts or omissions of Tenant, or by employees,
agents, assignees, contractors or subcontractors of Tenant or others acting for
or on behalf of Tenant (whether or not they are negligent, intentional, willful
or unlawful) shall be strictly attributable to Tenant.
c. SURVIVAL. The provisions of this paragraph 48 shall survive the
expiration or earlier termination of the term of this lease.
49. SIGNAGE. Tenant shall not, without obtaining the prior written consent
of Landlord, install or attach any sign or advertising material on any part of
the outside of the Premises, or on any part of the inside of the Premises which
is visible from the outside of the Premises, or in the halls, lobbies, windows
or elevators of the building in which the Premises are located or on or about
any other portion of the Common Area or Project. If Landlord consents to the
installation of any sign or other advertising material, the location, size,
design, color and other physical aspects thereof shall be subject to Landlord's
prior written approval and shall be in accordance with any sign program
applicable to the Project. In addition to any other requirements of this
paragraph 49, the installation of any sign or other advertising material by or
for Tenant must comply with all applicable laws, statutes, requirements, rules,
ordinances and any C.C. & R.'s or other similar requirements. With respect to
any permitted sign installed by or for Tenant, Tenant shall maintain such sign
or other advertising material in good condition and repair and shall remove such
sign or other advertising material on the expiration or earlier termination of
the term of this lease. The cost of any permitted sign or advertising material
and all costs associated with the installation, maintenance and removal thereof
shall be paid for solely by Tenant. If Tenant fails to properly maintain or
remove any permitted sign or other advertising material, Landlord may do so at
Tenant's expense. Any cost incurred by Landlord in connection with such
maintenance or removal shall be deemed additional rent and shall be paid by
Tenant to Landlord within ten (10) days following notice from Landlord. Landlord
may remove any unpermitted sign or advertising material without notice to Tenant
and the cost of such removal shall be additional rent and shall be paid by
Tenant within ten (10) days following notice from Landlord. Landlord shall not
be liable to Tenant for any damage, loss or expense resulting from Landlord's
removal of any sign or advertising material in accordance with this paragraph
49. The provisions of this paragraph 49 shall survive the expiration or earlier
termination of this lease.
50. SUBMISSION OF LEASE. The submission of this lease to Tenant for
examination or signature by Tenant is not an offer to lease the Premises to
Tenant, nor an agreement by Landlord to reserve the Premises for Tenant.
Landlord will not be bound to Tenant until this lease has been duly executed
and delivered by both Landlord and Tenant.
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51. PREMISES TAKEN "AS IS". Tenant is leasing the Premises from Landlord
"as is" in their condition existing as of the date hereof. Landlord shall have
no obligation to alter or improve the Premises.
52. ADDITIONAL RENT. All costs, charges, fees, penalties, interest and
any other payments (including Tenant's reimbursement to Landlord of costs
incurred by Landlord) which Tenant is required to make to Landlord pursuant to
the terms and conditions of this lease and any amendments to this lease shall
be and constitute additional rent payable by Tenant to Landlord when due as
specified in this lease and any amendments to this lease.
54. TENANT IMPROVEMENT ALLOWANCE. Landlord hereby grants to Tenant a
tenant improvement allowance of up to Twenty-One Thousand Two Hundred Fifty-Two
Dollars ($21,252) ("Allowance") to reimburse Tenant for the cost of tenant
improvements ("Tenant Improvements") which Tenant installs in the Premises
during the first six (6) months of the term of the Lease, subject to the
following terms and conditions:
(a) The Tenant Improvements shall be deemed alterations to the
Premises and subject to the terms and conditions of paragraph 8 of the Lease.
(b) The Tenant Improvements for which Tenant seeks reimbursement
shall be completed within six (6) months after the Lease Commencement Date.
(c) All outstanding claims for labor, materials and fixtures
relating to the Tenant Improvements shall have been paid in full by Tenant and
Tenant shall have obtained lien releases from all contractors and materialmen,
in form satisfactory to Landlord.
(d) The Tenant Improvements shall have been constructed in
accordance with all applicable laws.
(e) Tenant shall not be in default under the Lease.
Tenant shall not be entitled to any portion of the Allowance which is
not required to be disbursed in accordance with the foregoing requirements and
Tenant shall not be entitled to any credit against rent or any other payment
due Landlord under the Lease. No disbursement of any portion of the Allowance
shall be required until all of the conditions specified in items (a) through
(e) have been satisfied.
55. EARLY ACCESS. Tenant acknowledges that the Premises are currently
occupied by a third party pursuant to a lease which is scheduled to expire on
June 6, 1996. Upon obtaining possession of the Premises, Landlord shall provide
Tenant with limited access to the Premises for purposes of commencing
installation of the Tenant Improvements. Tenant's access to the Premises
pursuant to this paragraph shall be subject to all the terms and conditions of
this lease, including the insurance obligations specified in paragraph 11, and
as a condition precedent to Tenant's right to such access to the Premises,
Tenant shall provide Landlord with proof that Tenant has satisfied said
insurance requirements. Such limited access to the Premises shall not
accelerate the commencement or termination dates of this lease specified in
paragraph 2(a) hereof and Tenant shall not be obligated to pay basic rent or
direct expenses until the commencement of the term; provided, however, if
Tenant or any of Tenant's operating personnel commences operation of business
in the Premises, such operations shall accelerate the Lease Commencement Date
and the lease term shall commence on the date that such business operations are
commenced.
[Signature on Next Page]
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IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered
this lease on the date first above written.
Landlord: Tenant:
--------- -------
XxXXXXXXXX TOWERS, PHASE I ASCII OF AMERICA, INC.,
a California limited partnership a California corporation
By: XxXxxxxxxx Group, a
California general partnership,
General Partner
By: /s/ SIGNATURE By: /s/ SIGNATURE
------------------------------ ---------------------------
Xxxx X. XxXxxxxxxx, as Trustee
under the Xxxx X. XxXxxxxxxx Name: Printed Name
and Xxxx XxXxxxxxxx Inter Vivos -------------------------
Trust Agreement dated February
17, 1982, a General Partner Title: President
------------------------
Date: Date: 1-13-97
------------------------- -------------------------
By: /s/ S XXXXXXX
---------------------------
Name: S XXXXXXX
-------------------------
Title: Secretary
------------------------
Date: 1-13-97
-------------------------
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deliver to Landlord, in accordance with Landlord's instructions, any and all
documents, instruments, maps or plate necessary to effectuate Tenant's
covenants hereunder.
This lease confers no rights either with regard to the subsurface of
or airspace above the land on which the Project is located or with regard to
airspace above the building of which the Premises are a part. Tenant agrees
that no diminution or shutting off of light or view by a structure which is or
may be erected (whether or not by Landlord) on property adjacent to the
building of which the Premises are a part or to property adjacent thereto,
shall in any way affect this lease, or entitle Tenant to any reduction of rent,
or result in any liability of Landlord to Tenant.
36. RULES AND REGULATIONS. Landlord shall have the right from time to time
to promulgate reasonable rules and regulations for the safety, care and
cleanliness of the Premises, the Project, and the Common Area, or for the
preservation of good order. On delivery of a copy of such rules and regulations
to Tenant, Tenant shall comply with the rules and regulations, and a violation
of any of them shall constitute a default by Tenant under this lease. If there
is a conflict between the rules and regulations and any of the provisions of
this lease, the provisions of this lease shall prevail. Such rules and
regulations may be amended by Landlord from time to time with or without
advance notice.
37. NOTICES. Except for legal process which may also be served as
provided by law or as provided herein, all notices, demands, requests, consents
and other communications ("Notices") which may be given or are required to be
given by either party to the other shall be in writing and shall be deemed
given to and received by the party intended to receive such Notice (i) when
hand delivered, (ii) three (3) days after such Notice shall have been
deposited, postage prepaid, to the United States Mail, certified return receipt
requested, properly addressed to the address specified herein, or (iii) date of
delivery if sent to the address specified herein by reputable overnight courier
(e.g. Federal Express or other comparable service), as evidenced by such
courier's records.
Prior to the commencement date, all such Notices from Landlord to
Tenant shall be served or addressed to Tenant at 0000 Xxxxxxxxxx Xxxxx, Xxxxx
000, Xxx Xxxx, Xxxxxxxxxx 00000. On or after the commencement date all such
Notices from Landlord to Tenant shall be addressed to Tenant at the Premises.
All such Notices by Tenant to Landlord shall be sent to Landlord at
its offices at 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx 00000.
Either party may change its address by notifying the other of such
change.
38. NAME. Tenant shall not use the name of the Project for any purpose
other than as the address of the business conducted by Tenant in the Premises
without the prior written consent of Landlord.
39. GOVERNING LAW; SEVERABILITY. This lease shall in all respects be
governed by and construed in accordance with the laws of the State of
California. If any provision of this lease shall be held or rendered invalid,
unenforceable or ineffective for any reason whatsoever, all other provisions
hereof shall be and remain in full force and effect.
40. DEFINITIONS. As used in this lease, the following words and phrases
shall have the following meanings:
AUTHORIZED REPRESENTATIVE: any officer, agent, employee or
independent contractor retained or employed by either party, acting within
authority given him by that party.
COMMON AREA: those areas of the Project provided and designated by
Landlord for the general use and convenience of the occupants of the Project,
including but not limited to common lobbies, corridors, restrooms, elevators,
stairwells, conference rooms, parking areas, sidewalks, landscaped grounds, the
restaurant and sundries building, helipad, health club facilities (including but
not necessarily limited to the pool, spa, showers, locker rooms and exercise
rooms); together with telephone, electrical, janitorial and mechanical rooms,
mail rooms and storage areas, vertical duct shafts, building roofs and exterior
walls, the space occupied by the mechanical, plumbing, electrical and HVAC
systems, and all other areas of the Project not constituting leasable premises.
ENCUMBRANCE: any deed of trust, mortgage or other written security
device or agreement affecting the Premises or the Project that constitutes
security for the payment of a debt or performance of an obligation, and the
note or obligation secured by such deed of trust, mortgage or other written
security device or agreement.
LEASE MONTH: the period of time determined by reference to the day of
the month in which the term commences and continuing to one day short of the
same numbered day in the next succeeding month; e.g., the tenth day of one month
to and including the ninth day in the next succeeding month.
LENDER: the beneficiary, mortgagee or other holder of an encumbrance,
as defined above.
LIEN: a charge imposed on the Premises by someone other than Landlord,
by which the Premises are made security for the performance of an act. Most of
the liens referred to in this lease are mechanic's liens.
MAINTENANCE: repairs, replacement, repainting and cleaning.
MONTHLY RENT: the sum of the monthly payments of basic rent and
direct expenses.
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