EXHIBIT 10.2
OAK VALLEY BUSINESS CENTER
FULL SERVICE LEASE
BASIC LEASE INFORMATION
DATE: April 8, 2002
LANDLORD: OAK VALLEY BUSINESS CENTER, LLC, a California
limited liability company
c/o Basin Street Properties
0000 Xxxxxxx Xxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Phone: (000)000-0000
Fax: (000)0000000
TENANT: Q-Matrix, Inc.
a Delaware Corporation
TENANT'S ADDRESS: Q-Matrix, Inc.
0000 Xxxxx Xxxx Xxxx., Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Phone: (707)570 -0890
Fax: (707)570 -0897
PREMISES: Approximately Four Thousand Sixty Three
(4,063)rentable square feet of space and Three
Thousand Five Hundred Thirty Three (3,533) usable
square feet of space in the Building, as more
particularly shown on Exhibit A-1 attached
hereto.
BUILDING: That certain office building located within the
Project, commonly known as 475 Aviation and
consisting of approximately Forty Thousand
(40,000) rentable square feet of space.
LOT: APN: 000-000-000
PROJECT: That certain office/R&D park located in Santa
Rosa, California, and commonly referred to as
"Oak Valley Business Center".
TERM: Five (5)Years and Two (2)Months
a. Commencement Date See Section 1.3
b. Estimated commence-
ment date August 1,2002
BASE RENT:
a. Monthly Base Rent See Addendum
b. Advance Base Rent Seven Thousand One Hundred Ten Dollars and
(Paid Upon Execu- Twenty Five Cents ($7,110.25)
tion of Lease)
c. Adjustment Date of See Addendum
Monthly Base Rent
BASE YEAR 2002
TENANT'S BUILDING
PERCENTAGE SHARE: 10.16 percent (10.16%)(i. e., the rentable
square footage of the Premises/the rentable
square footage of the Building)(4,063/40,000)
TENANT PROJECT
PERCENTAGE SHARE: 4.0 percent (4.0%)(i.e., the rentable square
footage of the Premises/the rentable square
footage of the Project) (4,063/l01,563)
SECURITY DEPOSIT: Seven Thousand One Hundred Ten Dollars and Twenty
Five Cents (7,110.25)
PERMITTED USE: For use as office space and for no other use or
purpose.
PARKING SPACES: Tenant shall have the right to use Eighteen (IS)
spaces on a non-exclusive basis in the parking
areas shown on Exhibit A-2.
REAL ESTATE BROKERS:
a. Xxxxxxxx's Broker Xxxx Xxxxxxx and Xxxxx Xxxxxxx
Xxxxxx and Xxxxxx
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
b. Xxxxxx's Broker Xxxxx Xxxxxx and Xxxxx Xxxxx
Xxxxxx and Xxxxxx
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
GUARANTOR:
Name: _______________________
Address: _______________________
_______________________
EXHIBITS AND ADDENDUM
Addendum No. 1
Exhibit A-l: Diagram of Premises
Exhibit A-2: Diagram of Project
Exhibit B: Work Letter Agreement
Exhibit C: Commencement Date Memorandum
Exhibit D: Rules and Regulations
OAK VALLEY BUSINESS CENTER
FULL SERVICE LEASE
THIS OAK VALLEY BUSINESS CENTER FULL SERVICE LEASE (this "Lease") dated
as of April 8th, 2002, is entered into by and between OAK VALLEY BUSINESS CE
TER, LLC, a California limited liability company (" Landlord"), and Q-MATRIX,
INC., a Delaware Corporation ("Tenant").
1. DEFINITIONS. The following terms shall have the meanings set forth
below:
1.1. The Building. term "Building" shall have the meaning set forth in
the Basic Lease Information.
1.2. Building Common Areas. The term "Building Common Areas" shall
mean the areas and facilities within the Building provided and designated by
Landlord for the general use, convenience or benefit of Tenant and other
tenants and occupants of the Building (e. g., common stairwells, stairways,
hallways, shafts, elevators, restrooms, janitorial telephone and electrical
closets, pipes, ducts, conduits, wires and appurtenant fixtures servicing the
Building).
1.3. Commencement Date. The term "Commencement Date" shall have the
meaning set forth in the Basic Lease Information.
1.4. Common Areas. The term "Common Areas" shall mean the Building
Common Areas and the Project Common Areas.
1.5. Lot. The term "Lot" shall mean the land upon which the Building
is located, as more particularly described in the Basic Lease Information,
attached hereto,
1.6. Premises. The term "Premises" shall have the meaning set forth in
the Basic Lease Information.
1.7. The Proiect. term "Project" shall have the meaning set forth in
the Basic Lease Information.
1.8. Project Common Areas. The term "Project Common Areas" shall mean
the areas and facilities within the Project provided and designated by
Landlord for the general use, convenience or benefit of Tenant and other
tenants and occupants of the Project (e. g., walkways, traffic aisles,
accessways, utilities and communications conduits and facilities).
1.9. Rentable Area. The term "Rentable Area" shall mean the rentable
area of the Premises, Building and Project as reasonably determined by
Landlord. The parties agree that for all purposes under this Lease, the
Rentable Area of the Premises, Building and Project shall be deemed to be the
number of rentable square feet identified in the Basic Lease Information.
1.10. Tenant's Proiect Percentage Share. The term "Tenant's Project
Percentage Share" shall mean the percentage specified in the Basic Lease
Information. If the Rentable Area of the Premises or the Rentable Area of the
Project is changed, then Tenant's Project Percentage Share shall be adjusted
to a percentage equal to the Rentable Area of the Premises divided by the
Rentable Area of the Project.
1.11. Tenant's Buildinp Percentage Share. The term "Tenant's Building
Percentage Share" shall mean the percentage specified in the Basic Lease
Information. If the Rentable Area of the Premises or the Rentable Area of the
Building is changed, then Tenant's Building Percentage Share shall be adjusted
to a percentage equal to the Rentable Area of the Premises divided by the
Rentable Area of the Building.
1.12. Term. The term "Term" shall have the meaning set forth in the
Basic Lease Information.
2. Premises.
2.1. Demise. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, for the Term, at the rent and upon the conditions set
forth below, the Premises, together with the right in common to use the Common
Areas.
2.2. Condition Upon Delivery. Tenant acknowledges that it has had an
opportunity to thoroughly inspect the Premises and, subject to Landlord's
obligations under Section 9.2 and the Work Letter Agreement (if any), Tenant
accepts the Premises in its existing "as is" condition, with all faults and
defects and without any representation or warranty of any kind, express or
implied.
2.3. Reserved RiPhts. Landlord reserves the right to do the following
from time to time:
(a) Changes. To install, use, maintain, repair, replace and relocate
pipes, ducts, shafts, conduits, wires, appurtenant meters and mechanical,
electrical and plumbing equipment and appurtenant facilities for service to
other parts of the Building or Project above the ceiling surfaces, below the
floor surfaces and within the walls of the Premises and in the central core
areas of the Building and in the Building Common Areas, and to install, use,
maintain, repair, replace and relocate any pipes, ducts, shafts, conduits,
wires, appurtenant meters and mechanical, electrical and plumbing equipment
and appurtenant facilities servicing the Premises, which are located either in
the Premises or elsewhere outside of the Premises;
(b) Boundary Changes. To change the boundary lines of the Lot or the
Project;
(c) Facility Changes. To alter or relocate the Common Areas or any
facility within the Project;
(d) Parking. To designate and/or redesignate specific parking spaces
on the Lot or in the Project for the exclusive or non-exclusive use of
specific tenants on the Lot or in the Project;
(e) Services. To install, use, maintain, repair, replace, restore or
relocate public or private facilities for communications and utilities on or
under the Building and/or Project; and
(f) Other. perform such other acts and make such other changes in, to
or with respect to the Common Areas, Building and/or Project as Landlord may
reasonably deem appropriate.
2.4. Work Letter. Landlord and Tenant shall each perform the work
required to be performed by it as described in the Work Letter attached hereto
as Exhibit B. Landlord and Tenant shall each perform such work in accordance
with the terms and conditions contained therein,
3. Term.
3.1. Commencement Date. The Term shall be for the period of time
specified in the Basic Lease Information unless sooner terminated as
hereinafter provided. The Term shall commence on the Commencement Date (as set
forth in the Basic Lease Information)and shall continue in full force and
effect for the period specified as the Term or until this Lease is terminated
as otherwise provided herein. For purposes of this Lease, the first "Lease
Year" shall mean the period commencing on the Commencement Date and ending
twelve (12) months thereafter; provided, however, if the Commencement Date is
other than the first day of a calendar month, the first "Lease Year" shall
mean the period commencing on the Commencement Date and ending of the last day
of the eleventh (11th) full calendar month after the Commencement Date.
Thereafter, the term "Lease Year" shall mean a period equal to twelve full
calendar months.
3.2 Delay in Delivery. If for any reason Landlord has not delivered
to Tenant possession of the Premises by the Estimated Commencement Date, this
Lease shall remain in effect and Landlord shall not be liable to Tenant for
any loss or damage resulting therefrom.
3.3. Commencement Date Memorandum. Following the date on which
Xxxxxxxx delivers possession of the Premises to Tenant and the Commencement
Date, Landlord may prepare and deliver to Tenant a commencement date
memorandum (the "Commencement Date Memorandum")in the form of Exhibit C,
attached hereto, subject to such changes in the form as may be required to
insure the accuracy thereof. The Commencement Date Memorandum shall certify
the date on which Landlord delivered possession of the Premises to Tenant and
the dates upon which the Term commences and expires. Xxxxxx's failure to
execute and deliver to Landlord the Commencement Date Memorandum within five
(5)days after Xxxxxx's receipt of the Commencement Date Memorandum shall be
conclusive upon Tenant as to the matters set forth in the Commencement Date
Memorandum.
4. Rent.
4.1. Base Rent. For purposes of this Lease, the term "Rent" shall mean
the Base Rent, Advanced Base Rent, all additional rent, and all of the other
monetary obligations of Tenant under this Lease. Upon execution of this Lease,
Tenant shall pay to Landlord the Advanced Base Rent set forth in the Basic
Lease Information. Tenant shall pay to Landlord the Base Rent specified in the
Basic Lease Information on or before the first day of each and every
successive calendar month following the Commencement Date. If the Term
commences on other than the first day of a calendar month, the first payment
of Base Rent shall be appropriately prorated on the basis of the number of
days in such calendar month. Tenant's payment of any Advanced Base Rent shall
be credited against Xxxxxx's obligation to pay Base Rent beginning as of the
Commencement Date.
4.2. Adjustments to Base Rent. The Base Rent shall be adjusted as
provided in the Addendum attached hereto.
4.3. Additional Rent. Tenant shall pay, as additional rent, all
amounts of money required to be paid to Landlord by Tenant under this Lease in
addition to monthly Base Rent whether or not the same is designated
"additional rent." Tenant shall pay to Landlord all additional rent upon
Landlord's written request or otherwise as provided in this Lease.
4.4. Late Payment. Tenant acknowledges that late payment of Rent to
Landlord will cause Landlord to incur costs not contemplated by this Lease,
the exact amount of which is extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges, and late
charges which may be imposed on Landlord by the terms of any trust deed
covering the Premises. Accordingly, if any installment of Rent or any other
sums due from Tenant shall not be received by Landlord when due, Tenant shall
pay to Landlord a late charge in an amount equal to five percent (5%)of such
overdue amount. The parties agree that such late charge represents a fair and
reasonable estimate of the costs Landlord will incur by reason of late payment
by Xxxxxx. Acceptance of such late charge by Landlord shall not constitute a
waiver of Tenant's default with respect to such overdue amount, nor prevent
Landlord from exercising any of the other rights and remedies granted
hereunder.
4.5. In Interest. addition to the imposition of a late payment charge
pursuant to Section 4.4 above, any Rent that is not paid when due shall bear
interest from the date due until paid at the rate that is the lesser of twelve
percent (12%)per annum (the "Interest Rate")or the maximum rate permitted by
law. Payment of interest shall not excuse or cure any default hereunder by
Xxxxxx.
4.6. Payment. All payments due from Tenant to Landlord hereunder shall
be made to Landlord without deduction or offset, in lawful money of the United
States of America at Landlord's address for notices hereunder, or to such
other person or at such other place as Landlord may from time to time
designate in writing to Tenant.
5. Taxes.
5.1 Tenants Obligations. Tenant shall pay to Landlord, as additional
rent, Xxxxxx's Percentage Share of any increase in Taxes over Base Term during
each year of the Term (prorated for any partial calendar year during the
Term). The term "Base Taxes" shall mean those taxes incurred by Landlord
during the calendar year specified as the Base Year in the Basic Lease
Information.
5.2 Definition of Taxes. The term "Taxes" shall include all transit
charges, housing fund assessments, real estate taxes and all other taxes
relating to the Premises, Project and Building of every kind and nature
whatsoever, including any supplemental real estate taxes attributable to any
period during the Term; all taxes which may be levied in lieu of real estate
taxes; and all assessments, assessment bonds, levies, fees, penalties (if a
result of Tenant's delinquency)and other governmental charges (including, but
not limited to, charges for parking, traffic and any storm drainage/flood
control facilities, studies and improvements, water and sewer service studies
and improvements, and fire services studies and improvements); and all amounts
necessary to be expended because of governmental orders, whether general or
special, ordinary or extraordinary, unforeseen as well as foreseen, of any
kind and nature for public improvements, services, benefits or any other
purpose, which are assessed, based upon the use or occupancy of the Premises,
Project and/or Building, or levied, confirmed, imposed or become a lien upon
the Premises, Project and/or Building, or become payable during the Term, and
which are attributable to any period within the Term.
5.3. Limitation. Nothing contained in this Lease shall require Tenant
to pay any franchise, estate, inheritance, succession or transfer tax of
Landlord, or any income, profits or revenue tax or charge upon the net income
of Landlord from all sources; provided, however, that if at any time during
the Term under the laws of the United States Govermnent or the State of
California, or any political subdivision thereof, a tax or excise on rent, or
any other tax however described, is levied or assessed by any such political
body against Landlord on account of Rent, or any portion thereof, Tenant shall
pay one hundred percent (100%)of any said tax or excise as additional rent.
5.4. Installment Election. In the case of any Taxes which may be
evidenced by improvement or other bonds or which may be paid in annual or
other periodic installments, Landlord shall elect to cause such bonds to be
issued or such assessment to be paid in installments over the maximum period
permitted by law.
5.5. Estimate of Xxxxxx's Share of Taxes. Prior to the commencement of
each calendar year during the Term, or as soon thereafter as reasonably
practicable, Landlord shall notify Tenant in writing of Landlord's estimate of
the amount of Taxes which will be payable by Tenant for the ensuing calendar
year. On or before the first day of each month during the ensuing calendar
year, Tenant shall pay to Landlord in advance, together with Base Rent,
onetwelfth (1/12th)of the estimated amount; provided, however, if Landlord
fails to notify Tenant of the estimated amount of Tenant's share of Taxes for
the ensuing calendar year prior to the end of the current calendar year,
Tenant shall be required to continue to pay to Landlord each month in advance
Tenant's estimated share of Taxes on the basis of the amount due for the
immediately prior month until ten (10)days after Landlord notifies Tenant of
the estimated amount of Tenant's share of Taxes for the ensuing calendar year.
If at any time it appears to Landlord that Xxxxxx's share of Taxes payable for
the current calendar year will vary from Landlord's estimate, Landlord may
give notice to Tenant of Landlord's revised estimate for the year, and
subsequent payments by Tenant for the year shall be based on the revised
estimate.
5.6. Annual Adiustment. Within one hundred twenty (120)days after the
close of each calendar year during the Term, or as soon after the one hundred
twenty (120)day period as reasonably practicable, Landlord shall deliver to
Tenant a statement of the adjustment to the Taxes for the prior calendar year.
If, on the basis of the statement, Tenant owes an amount that is less than the
estimated payments for the prior calendar year previously made by Tenant,
Landlord shall apply the excess to the next payment of Taxes due. If, on the
basis of the statement, Tenant owes an amount that is more than the amount of
the estimated payments made by Tenant for the prior calendar year, Tenant
shall pay the deficiency to Landlord within thirty (30)days after delivery of
the statement. The year end statement shall be binding upon Tenant unless
Tenant notifies Landlord in writing of any objection thereto within thirty
(30) days after Xxxxxx's receipt of the year end statement. In addition, if,
after the end of any calendar year or any annual adjustment of Taxes for a
calendar year, any Taxes are assessed or levied against the Premises, Project
or Building that are attributable to any period within the Term (e.g.,
supplemental taxes or escaped taxes), Landlord shall notify Tenant of its
share of such additional Taxes and Tenant shall pay such amount to Landlord
within ten (10) days after Xxxxxxxx's written request therefor.
5.7 Personal Property Taxes. Tenant shall pay or cause to be paid,
not less than ten (10) days prior to delinquency, any and all taxes and
assessments levied upon all of Tenant's trade fixtures, inventories and other
personal property in, on or about the Premises. When possible, Tenant shall
cause Xxxxxx's personal property to be assessed and billed separately from the
real or personal property of Landlord. On request by Xxxxxxxx, Tenant shall
furnish Landlord with satisfactory evidence of payment of Xxxxxx's business
personal property taxes and deliver copies of such business personal property
tax bills to Landlord.
5.8. Taxes on Tenant Improvements. Notwithstanding any other provision
hereof, Tenant shall pay to Landlord the full amount of any increase in Taxes
during the Term resulting from any and all alterations and tenant improvements
of any kind whatsoever placed in, on or about or made to the Premises,
Building or Project for the benefit of, at the request of, or by Tenant.
6. Operating Expenses.
6.1. Obligation to Pay Operating Expenses. Tenant shall pay to
Landlord as Additional Rent during the Term (i)Tenant's Building Percentage
Share of any increase in Operating Expenses attributable to the ownership,
operation, repair and/or maintenance of the Building over the Base Operating
Expenses attributable to the Building and (ii)a portion of any increase in
Operating Expenses attributable to the ownership, repair and maintenance of
the Project over the Base Operating Expenses for the Project as reasonably
determined by Landlord. Landlord has the right to allocate certain Operating
Expenses incurred in colmection with the ownership, operation, repair and/or
maintenance of the to one or more particular buildings within the Project to
the extent Landlord determines that it is reasonable to do so based upon the
nature or the expense. The term "Base Operating Expenses" shall mean those
Operating Expenses incurred by Landlord during the calendar year specified as
the Base Year in the Basic Lease Information.
6.2. Definition of Operating Expenses. The term "Operating Expenses"
shall include all expenses and costs of every kind and nature which Landlord
shall pay or become obligated to pay because of or in connection with the
ownership, operation, repair and/or maintenance of the Building, Common Areas
and/or Project, the surrounding property, and the supporting facilities,
including, without limitation: (A)property management expenses, (B)all
maintenance, janitorial and security costs, (C)costs for all materials,
supplies and equipment; (D)all costs of water, heat, gas power, electricity,
refuse collection, parking lot sweeping, landscaping, and other utilities and
services provided to the Building and the Common Areas; (E)all costs of
alterations or improvements to the Building or Common Areas made to achieve
compliance with federal, state and local law including, without limitation,
the Americans with Disabilities Act (42 U. S. C. Section 12101 et seq.), or to
reduce Operating Expenses or improve the operating efficiency of the Building
or the Project, all of which costs will be amortized over such reasonable
period as Landlord shall determine, together with interest upon the
unamortized balance at the Interest Rate or such other higher rate as may have
been paid by Landlord on funds borrowed for the purpose of making the
alterations or improvements; (F)premiums for insurance maintained by Landlord
pursuant to this Lease or with respect to the Building or the Project;
(G)costs for repairs, replacements, uninsured damage or insurance deductibles
and general maintenance of the Building, Common Areas and Project, but
excluding any repairs or replacements paid for out of insurance proceeds or by
other parties; (H)all costs incurred by Landlord for making any capital
improvements, structural repairs or modifications to the Building or Common
Areas, which costs will be amortized over such reasonable period as Landlord
shall determine, together with interest upon the unamortized balance at the
Interest Rate or such other higher rate as may have been paid by Landlord on
funds borrowed for the purpose of constructing the improvements or making the
repairs or modifications; (I)all costs of maintaining machinery, equipment and
directional signage or other markers; and (J)the share allocable to the
Building of dues and assessments payable under any reciprocal easement or
common area maintenance agreements or declarations or by any owners
associations affecting the Building or the Project. That portion of the
Operating Expenses relating to the property management expenses for the
Building and Common Areas which shall be charged to Tenant shall be an amount
equal to four percent (4%) of both Tenant's annual Base Rent and the subtotal
of Tenant's share of Operating Expenses of the Building and the Project.
6.3. Less Than Full Occupancy. If the Building or the Project are
less than ninety-five percent (95%) occupied during any year of the Term,
Operating Expenses for each such calendar year shall be adjusted to equal
Landlord's reasonable estimate of Operating Expenses as though ninety-five
percent(95%) of the total rentable area of the Building and/or the Project as
applicable had been occupied.
6.4 Estimates of Operating Expenses. Tenant shall pay to Landlord
each month at the same time and in the same manner as monthly Base Rent one-
twelfth (1/12th) of Landlord's estimate of the amount of Operating Expenses
payable by Tenant for the then-current calendar year. If at any time it
appears to Landlord that Xxxxxx's share of Operating Expenses payable for the
current calendar year will vary from Landlord's estimate, Landlord may give
notice to Tenant of Landlord's revised estimate for the calendar year, and
subsequent payments by Xxxxxx for the calendar year shall be based on the
revised estimate. Within one hundred twenty (120)days after the close of each
calendar year, or as soon after such 120-day period as practicable, Landlord
shall deliver to Tenant a statement in reasonable detail of the actual amount
of Operating Expenses payable by Tenant for such calendar year. Landlord's
failure to provide such statement to Tenant within the 120-day period shall
not act as a waiver and shall not excuse Tenant or Landlord from making the
adjustments to reflect actual costs as provided herein. If on the basis of
such statement Tenant owes an amount that is less than the estimated payments
for such calendar year previously made by Tenant, Landlord shall credit such
excess against the next payment of Operating Expenses due. If on the basis of
such statement Tenant owes an amount that is more than the estimated payments
for such calendar year previously made by Tenant, Tenant shall pay the
deficiency to Landlord within fifteen (15)days after delivery of the
statement. In addition, if, after the end of any calendar year or any annual
adjustment of Operating Expenses for a calendar year, Operating Expenses are
incurred or billed to Landlord that are attributable to any period within the
Term (e. g., sewer district flow fees), Landlord shall notify Tenant of its
share of such additional Operating Expenses and Tenant shall pay such amount
to Landlord within ten (10)days after Xxxxxxxx's written request therefor. The
obligations of Landlord and Tenant under this Section 6.4 with respect to the
reconciliation between the estimated and actual amounts of Operating Expenses
payable by Tenant for the last year of the Term shall survive the termination
of this Lease.
6.5. Payment at End of Term. Any amount payable by Tenant which would
not otherwise be due until after the termination of this Lease, shall, if the
exact amount is uncertain at the time that this Lease terminates, be paid by
Tenant to Landlord upon such termination in an amount to be estimated by
Landlord with an adjustment to be made once the exact amount is known.
7. Permitted Use.
7.1. Use and Compliance with Laws. The Premises shall be used and
occupied by Tenant solely for the Permitted Use set forth in the Basic Lease
Information. Tenant shall, at Tenant's expense, comply promptly with all
applicable federal, state and local laws, regulations, ordinances, rules,
orders, and requirements in effect during the Term relating to the condition,
use or occupancy of the Premises. Tenant shall not use or permit the use of
the Premises in any manner that will tend to create waste or a nuisance, or
that unreasonably disturbs other tenants of the Building or Project, nor shall
Tenant place or maintain any signs, antennas, awnings, lighting or plumbing
fixtures, loudspeakers, exterior decoration or similar devises on the Building
or the Project or visible from the exterior of the Premises without Landlord's
prior written consent, which consent may be withheld in Landlord's sole
discretion. Tenant shall not use any corridors, sidewalks, stairs, elevators
or other areas outside of the Premises for storage or any purpose other than
access to the Premises. Tenant shall not use, keep or permit to be used or
kept on the Premises any foul or noxious gas or substance, nor shall Tenant do
or permit to be done anything in and about the Premises, either in connection
with activities hereunder expressly permitted or otherwise, which would cause
an increase in premiums for or a cancellation of any policy of insurance
(including fire insurance)maintained by Landlord in connection with the
Premises, Building or Project or which would violate the terms of any
covenants, conditions or restrictions, the design guidelines, the sign
guidelines affecting the Building or the land on which it is located, or the
Rules (as the term is defined under Section 7.4.2 below).
7.2. Signs. Tenant shall not attach or install any sign to or on any
part of the outside of the Premises, the Building or the Project, or in the
halls, lobbies, windows or elevator banks of the Building without Landlord's
prior written consent, which consent may be withheld in Landlord's sole
discretion. Any signage so permitted shall be subject to prior approval of
and conformance with the requirements of the design review committee of the
Project and the design review agency of the city. At Tenant's expense, Tenant
shall (i) maintain all permitted signage in good condition and repair, and
(ii) upon expiration or earlier termination of this Lease, remove such signage
and shall return the Building and Project to their condition existing
immediately prior to the placement or erection of said sign or signs and in
such a condition that no discoloration or other evidence of the prior
existence of the sign appears on the Building where the sign previously was
affixed. If Tenant fails to do so, Landlord may maintain, repair or remove
such signage and restore the Building and or Project to its original condition
without notice to Tenant and at Tenant's expense, the cost of which shall be
payable by Tenant as additional rent.
7.3. Suitability. Tenant acknowledges that neither Landlord nor any
agent of Landlord has made any representation or warranty with respect to the
Premises, Building or with respect to the suitability or fitness of either for
the conduct of Tenant's business or for any other purpose.
7.4. Use of Common Areas.
7.4.1. Right to Use Common Areas. Landlord gives Tenant and its
authorized employees, agents, customers, representatives and invitees the
nonexclusive right to use the Common Areas with others who are entitled to use
the Common Areas, subject to Landlord's rights as set forth in this Section
7.4.
7.4.2. Rules. All Common Areas shall be subject to the exclusive
control and management of Landlord and Landlord shall have the right to
establish, modify, amend and enforce reasonable rules and regulations with
respect to the Common Areas. Tenant acknowledges receipt of a copy of the
current rules and regulations (the "Rules")attached hereto as Exhibit D, and
agrees that they may, from time to time, be modified or amended by Landlord in
a commercially reasonable manner. Tenant agrees to abide by and conform with
the Rules; to cause its concessionaires and its and their employees and agents
to abide by the Rules; and to use its best efforts to cause its customers,
invitees and licensees to abide by the Rules.
7.4.3. Use. Landlord shall have the right to close temporarily
any portion of the Common Areas for the purpose of discouraging use by parties
who are not tenants or customers of tenants; to use portions of the Common
Areas while engaged in making additional improvements or repairs or
alterations to the Property; to use or permit the use of the Common Areas by
others to whom Landlord may grant or have granted such rights; and to do and
perform such acts in, to, and with respect to, the Common Areas as in the use
of good business judgment Landlord shall determine to be appropriate for the
Project.
7.4.4. Change in Common Areas. Landlord shall have the
unqualified right to increase or reduce the Common Areas, provided the Project
meets the parking requirement under Section 7.6 below.
7.4.5. Recycling. Tenant shall cooperate with Landlord and other
tenants in the Project in recycling waste paper, cardboard or such other
materials identified under any trash recycling program that may be established
in order to reduce trash collection costs.
7.5. Environmental Matters.
7.5.1. Hazardous Materials. The term "Hazardous Materials" as
used herein means any petroleum products, asbestos, polychlorinated biphenyls,
P. C. B.'s, or chemicals, compounds, materials, mixtures or substances that
are now or hereafter defined or listed in, or otherwise classified as a
"hazardous substance", "hazardous material", "hazardous waste", "extremely
hazardous waste", "infectious waste", "toxic substance", "toxic pollutant" or
any other formulation intended to define, list or classify substances by
reason of deleterious properties such as ignitability, corrosivity,
reactivity, carcinogenicity or toxicity pursuant to any federal, state or
local environmental law, regulation, ordinance, resolution, order or decree
relating to industrial hygiene, environmental protection or the use, analysis,
generation, manufacture, storage, release, disposal or transportation of the
same (" Hazardous Materials Laws").
7.5.2 Tenant's Covenants. Except for ordinary office supplies
and janitorial cleaning materials which is common business practices are
customarily and lawfully used, stored and disposed of in small quantities,
Tenant shall not use, manufacture, store, release, dispose or transport any
Hazardous Materials in, on, under or about the Premises, the Building or the
Project without giving prior written notice to the Landlord and obtaining
Landlord's prior written consent, which consent Landlord may withhold in its
sole discretion. Tenant shall at is own expense procure, maintain in effect,
and comply with all conditions of any and all permits, licenses, and other
governmental and regulatory approvals required in connection with Tenant's
generation, use, storage, disposal and transportation of Hazardous Materials.
Except as discharged into the sanitary sewer in strict accordance and
conformity with all applicable Hazardous Materials Laws, Tenant shall cause
any and all Hazardous Materials removed from the Premises to be removed and
transported solely by duly licensed haulers to duly licensed facilities for
final disposal of such materials and wastes, Tenant shall not maintain or
install in, on, under or about the Premises, the Building or the Project any
above or below ground storage tanks, clarifiers or sumps, nor any xxxxx for
the monitoring of ground water, soils or subsoils.
7.5.3. Notice. Tenant shall immediately notify Landlord in
writing of: (a)any enforcement, cleanup, removal or other governmental or
regulatory action instituted, completed or threatened pursuant to any
Hazardous Materials Law; (b)any claim made or threatened by any person or
entity against Tenant or the Premises relating to damage, contribution, cost,
recovery, compensation, loss or injury resulting from or claimed to result
from any Hazardous Materials; and (c)any reports, information, inquiries or
demands made, ordered, or received by or on behalf of Tenant which arise out
of or in connection with the existence or potential existence of any Hazardous
Materials in, on, under or about the Premises, the Building or the Project,
including, without limitation, any complaints, notices, warnings, asserted
violations, or mandatory or voluntary informational filings with any
governmental agency in connection therewith, and immediately supply Landlord
with copies thereof.
7.5.4. Indemnity. Tenant shall indemnify, defend (by counsel
reasonably acceptable to Landlord), protect and hold harmless Landlord, and
each of Landlord's officers, directors, partners, employees, affiliates, joint
venturers, members, trustees, owners, shareholders, principals, agents,
representatives, lenders, successors and assigns, from and against any and all
claims, liabilities, damages, fines, penalties, forfeitures, losses, cleanup
and remediation costs or expenses (including attorneys'fees)or death of or
injury to any person or damage to any property whatsoever, arising from or
caused in whole or in part, directly or indirectly, by (i)Tenant's use,
analysis, generation, manufacture, storage, release, disposal, or
transportation of Hazardous Materials by Xxxxxx and Tenant's agents,
employees, contractors, licensees or invitees to, in, on, under, about or from
the Premises, the Building or the Project, or (ii)Tenant's failure to comply
with any Hazardous Materials Law. Tenant's obligations hereunder shall
include, without limitation, and whether foreseeable or unforeseeable, all
costs of any required or necessary repair, cleanup, detoxification or
decontamination of the Premises, the Building, or the Project and the
preparation and implementation of any closure, remedial action or other
required plans in connection therewith, and shall survive the expiration or
earlier termination of this Lease.
7.5.5. Landlord's Rights. Landlord shall have the right to enter
the Premises at all times upon reasonable prior notice for the purposes of
ascertaining compliance by Tenant with all applicable Hazardous Materials
Laws; provided, however, that in the instance of an emergency no notice shall
be required. Landlord shall have the option to declare a default of this Lease
for the release or discharge of Hazardous Materials by Tenant or Tenant's
employees, agents, contractors, or invitees on the Premises, Building or
Project in violation of law or in deviation from prescribed procedures in
Tenant's use or storage of Hazardous Materials. If Tenant fails to comply with
any of the provisions under this Section 7.5, Landlord shall have the right
(but not the obligation)to remove or otherwise cleanup any Hazardous Materials
from the Premises, the Building or the Project. In such case, the costs of any
Hazardous Materials investigation, removal or other cleanup (including,
without limitation, transportation, storage, disposal and attorneys'fees and
costs)will be additional rent due under this Lease, whether or not a court has
ordered the cleanup, and will become due and payable on demand by Landlord.
7.6. Parking. Landlord grants to Tenant and Tenant's customers,
suppliers, employees and invitees during the Term the right to use in the
parking areas designated on Exhibit A-2 the number of parking spaces stated in
the Basic Lease Information on a nonexclusive basis for the use of motor
vehicles, subject to rights reserved to Landlord as specified in this Section
7.6. Landlord reserves the right to grant similar nonexclusive rights to
other tenants; to promulgate rules and regulations relating to the use of the
including parking area; to make changes in the parking layout from time to
time; and to do and perform any other acts in and to these areas and
improvements as Landlord determines to be advisable. Xxxxxx agrees not to
overburden the parking facilities and to abide by and conform with the rules
and regulations and to cause its employees and agents to abide by and conform
to the rules and regulations. Upon request, Tenant shall provide Landlord
with license plate numbers of all vehicles driven by its employees and to
cause Tenant's employees to park only in spaces specifically designated for
tenant parking. Landlord shall have the unqualified right to rearrange or
reduce the number of parking spaces; provided, however, the ratio of the
number of parking spaces available to Tenant will be no less than three and
one-half (3.5) spaces per 1,000 usable square feet of the Premises.
8. Services.
8.1. Utilities. Landlord shall furnish the Premises with electricity
for lighting fixtures and office machines, water, heat and air conditioning
and daily janitorial service on normal business days. Landlord shall have the
right, at Tenant's sole cost and expense, to install separate metering for
electricity and water to the Premises. In addition, Tenant shall reimburse
Landlord within ten (10)days after Xxxxxxxx's written request for the cost of
providing heat and air conditioning to the Premises in excess of that required
for normal office use or during other than usual business hours and the cost
of providing power to the Premises for other than normal desk-top office
equipment.
8.2. No Liability. Landlord shall not be in default hereunder or be
liable for any damages or personal injuries to any person directly or
indirectly resulting from, nor shall there be any Rent abatement by reason of,
any interruption or curtailment whatsoever in utility services.
9. Maintenance and Repairs.
9.1. Tenant's Repairs and Maintenance. Tenant shall, at Tenant's
expense, maintain every part of the Premises in good order, condition and
repair, including without limitation, (i)all interior surfaces, ceilings,
walls, door frames, window frames, floors, carpets, draperies, window
coverings and fixtures, (ii)all windows, doors, locks and closing devices,
entrances, plate glass, and signs, (iii)all plumbing and sewage pipes,
fixtures and fittings, (iv)all phone lines, electrical wiring, equipment,
switches, outlets and light bulbs, (v)any fire detection, fire sprinkler or
extinguisher equipment, (vi)all of Tenant's personal property, improvements
and alterations, and (vii)all other fixtures and special items installed by or
for the benefit of, or at the expense of Tenant. Tenant shall, at its expense,
cause to be maintained in good operating condition and repair, all heating,
ventilating, and air conditioning equipment installed in the Premises and, at
Landlord's election, all heating, ventilating and air conditioning equipment
exclusively serving the Premises. If requested by Landlord, Tenant shall keep
in force a preventive maintenance contract with a qualified maintenance
company acceptable to Landlord covering all heating, ventilating and air
conditioning equipment and shall annually provide Landlord with a copy of this
contract. Tenant shall not enter onto the roof area of the Building, except
for the purpose of maintaining the heating, ventilating, and air conditioning
equipment to the extent Tenant is required to do so under the terms of this
Lease. Tenant shall repair any damage to the roof area caused by its entry.
Tenant shall be responsible for its own janitorial service. Landlord shall
incur no expense (nor have any obligation)of any kind whatsoever in connection
with the maintenance of the Premises.
9.2. Landlord's Repairs and Maintenance. Landlord shall keep in good
condition and repair the foundation, roof structure, exterior walls and other
structural parts of the Building, and all other portions of the Building not
the obligation of Tenant or any other tenant in the Building. Tenant expressly
waives the benefits of any statute, including Civil Code Sections 1941 and
1942, which would afford Tenant the right to make repairs at Landlord's
expense or to terminate this Lease due to Landlord's failure to keep the
Building in good order, condition and repair. Landlord shall have no liability
to Tenant for any damage, inconvenience or interference with the use of the
Premises by Xxxxxx as the result of Landlord performing any such maintenance
and repair work.
9.3. Failure to Repair or Maintain. In the event Tenant fails to
perform Tenant's obligations under this Section 9.3, Landlord may, but shall
not be required to, give Tenant notice to do such acts as are reasonably
required to so maintain the Premises. If Tenant shall fail to commence such
work and diligently prosecute it to completion, then Landlord shall have the
right (but not the obligation) to do such acts and expend such funds at the
expense of Tenant as are reasonably required to perform such work. Any
amounts so expended by Landlord will be additional rent due under this Lease,
and such amounts will become due and payable on demand by Landlord. Landlord
shall have no liability to Tenant for any such damages, inconvenience or
interference with the use of the Premises by Xxxxxx as a result of performing
such work.
9.4 Surrender of Premises. Upon the expiration or earlier
termination of this Lease, Tenant shall surrender the Premises to Landlord in
good condition and repair, ordinary wear and tear expected. The term
"ordinary wear and tear" as used herein shall mean wear and tear which
manifests itself solely through normal intensity of use and passage of time
consistent with the employment of commercially prudent measures to protect
finishes as components from damage and excessive wear, the application of
regular and appropriate preventative maintenance practices and procedures,
routine cleaning and servicing, waxing, polishing, adjusting, repair,
refurbishment and replacement at a standard of appearance and utility and as
often as appropriate for Class A corporate and professional office occupancies
in the Santa Xxxx office market. The term "ordinary wear and tear" would thus
encompass the natural fading of painted surfaces, fabric and materials over
time, and carpet wear caused by normal foot traffic. To the extent that such
wear and tear exceeds the normal Class A office occupancy standards of the
Santa Xxxx office market, such would be considered items of deferred
maintenance indicative of a degradation of the improvements. The term
"ordinary wear and tear" shall not include any damage or deterioration that
could have been prevented by Xxxxxx's employment of ordinary prudence, care
and diligence in the occupancy and use of the Premises and the performance of
all of its obligations under this Lease. Items not considered reasonable wear
and tear hereunder include the following for which Tenant shall bear the
obligation for repair and restoration (except to the extent caused by the
gross negligence or willful misconduct of Landlord or its employees or
agents)(i)excessively soiled, stained, worn or marked surfaces or finishes;
(ii)damage, including holes in building surfaces (e. g., cabinets, doors,
walls, ceilings and floors)caused by the installation or removal of Tenant's
trade fixtures, furnishings, decorations, equipment, alterations, utility
installations, security systems, communications systems (including cabling,
wiring and conduits), displays and signs; and (iii)damage to any component,
fixture, hardware, system or component part thereof within the Premises, and
any such damage to the Building or Project, caused by Tenant or its agents,
contractors or employees, and not fully recovered by Landlord from insurance
proceeds. Tenant, at its sole cost and expense, agrees to repair any damages
to the Premises caused by or in connection with the removal of any articles of
personal property, business or trade fixtures, signs, machinery, equipment,
cabinetwork, furniture, moveable partitions or permanent improvements or
additions, including without limitation thereto, repairing the floor and
patching and painting the walls where required by Landlord to Landlord's
reasonable satisfaction. Tenant shall indemnify Landlord against any loss or
liability resulting from delay by Xxxxxx in so surrendering the Premises,
including without limitation, any claims made by any succeeding tenant
resulting from such delay.
10. Alterations.
10.1. Consent Required. Tenant shall not make any alterations,
improvements or additions (each, an "Alteration")in, on or about the Premises
without Landlord's prior written consent, except that Tenant may make
Alterations without Landlord's prior written consent where (i)the reasonably
estimated cost of the Alteration and together with the cost of any other
Alteration made during the immediately preceding twelve (12)months does not
exceed $5,000, and (ii)such Alterations do not affect or involve the
structural integrity, roof membrane, exterior areas, building systems or
water-tight nature of the Premises, Building or Project. In requesting
Xxxxxxxx's consent, Tenant shall, at Tenant's sole cost, submit to Landlord
complete drawings and specifications describing the Alteration and the
identity of the proposed contractor.
10.2. Conditions.
10.2.1. Notice. Before commencing any work relating to
Alterations, Tenant shall notify Landlord of the expected date of commencement
thereof and of the anticipated cost thereof. Landlord shall then have the
right at any time and from time to time to post and maintain on the Premises
such notices as Landlord reasonably deems necessary to protect the Premises
and Landlord from mechanics'liens or any other liens.
10.2.2. Liens. Tenant shall pay when due all claims for labor or
materials furnished to Tenant for use in the Premises. Tenant shall not permit
any mechanics'liens or any other liens to be levied against the Premises for
any labor or materials furnished to Tenant in connection with work performed
on the Premises by or at the direction of Tenant. Tenant shall indemnify,
hold harmless and defend Landlord (by counsel reasonably satisfactory to
Landlord) from any liens and encumbrances arising out of any work performed or
materials furnished by or at the direction of Xxxxxx. In the event that
Tenant shall not, within five (5) days following the imposition of any such
lien, cause such lien to be released of record by payment or posting of a
proper bond, Landlord shall have, in addition to all other remedies provided
herein by law, the right, but not the 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 such sums paid by Xxxxxxxx and all expenses
incurred by it in connection therewith, including attorneys' fees and costs,
shall be payable to Landlord by Tenant on demand with interest at the Interest
Rate.
10.2.3. Compliance with Laws. All Alterations in or about the
Premises performed by or on behalf of Tenant shall be done in a first-class,
workmanlike manner, shall not unreasonably lessen the value of leasehold
improvements in the Premises, and shall be completed in compliance with all
applicable laws, ordinances, regulations and orders of any govermnental
authority having jurisdiction thereover, as well as the requirements of
insurers of the Premises and the Building.
10.2.4. Labor Disputes. Upon Landlord's request, Tenant shall
remove any contractor, subcontractor or material supplier from the Premises
and the Building if the work or presence of such person or entity results in
labor disputes in or about the Building or Project or damage to the Premises,
Building or Project.
10.2.5. Americans with Disabilities Act. Landlord, at Xxxxxxxx's
sole discretion, may refuse to grant Tenant permission for Alterations which
require, because of application of Americans with Disabilities Act or other
laws, substantial improvements or alterations to be made to the Common Areas,
10.2.6. End of Term. Landlord, by written notice, may require
that Tenant, at Tenant's expense, remove any Alterations prior to or upon the
expiration of this Lease, and restore the Premises to their condition prior to
such Alterations. Unless Landlord requires their removal, as provided above,
all Alterations made to the Premises shall become the property of Landlord and
remain upon and be surrendered with the Premises upon the expiration of this
Lease; provided, however, that Tenant's machinery, equipment, and trade
fixtures, other than any which may be affixed to the Premises so that they
cannot be removed without material damage to the Premises, shall remain the
property of Tenant and may be removed by Tenant subject to the provisions of
Section 9.4 above.
11. Insurance and Indemnity.
11.1. Insurance. Tenant shall obtain and maintain during the Term the
following insurance:
11.1.1. Commercial General Liability Insurance. Commercial
general liability insurance (occurrence form)having a combined single limit of
not less than $2,000,000 per occurrence and $2,000,000 aggregate per location,
if Tenant has multiple locations, providing coverage for, among other things,
blanket contractual liability, premises, product/completed operations and
personal injury coverage (in a form, with a deductible amount, and with
carriers reasonably acceptable to Landlord).
11.1.2. Automobile Liability Insurance. Comprehensive automobile
liability insurance having a combined single limit of not less than Two
Million Dollars ($2,000,000)per occurrence, and insuring Tenant against
liability for claims arising out of ownership, maintenance or use of any
owned, hired, borrowed or non-owned automobiles;
11.1.3. Workers' Compensation and Employer's Liability Insurance.
Workers'compensation insurance having limits not less than those required by
state statute and federal statute, if applicable, and covering all persons
employed by Tenant in the conduct of its operations on the Premises (including
the all states endorsement and, if applicable, the volunteers endorsement),
together with employer's liability insurance coverage in the amount of at
least Two Million Dollars ($2,000,000);
11.1.4. Property Insurance. "Special Form" property insurance (or
its equivalent if "Special Form" property insurance is not available),
including vandalism and malicious mischief, boiler and machinery comprehensive
form, if applicable, and endorsement for earthquake sprinkler damage, each
covering damage to or loss of Tenant's personal property, fixtures and
equipment, including electronic data processing equipment ("EDP Equipment"),
media and extra expense, and all alterations, additions and improvements made
by or at the request of Tenant to the Premises other than those tenant
improvements owned by Landlord (and coverage for perils insured against in the
so-called "EDP Form." If the property of Xxxxxx's invitees is to be kept in
the Premises, warehouser's legal liability or bailee customers insurance for
the full replacement cost of such property;
11.1.5. Business Income/Extra Expense Insurance. Business income
with extra expense insurance (form CP 0030 or equivalent) in an amount not
less than the annual Base Rent and Additional Rent payable by Tenant hereunder
for the then current calendar year, with a minimum fifty percent
(50%)coinsurance percentage, the agreed value option and building ordinance
(Form CP 153 1 or equivalent). Any boiler and machinery policies or
endorsements obtained shall also include these same provisions and coverages;
and
11.1.6. Additional Insurance. Any such other insurance as
Landlord or Landlord's lender may reasonably require.
11.2. General. The insurance carrier shall be authorized to do
business in the State of California, with a policyholders and financial rating
of at least A: IX Class status as rated in the most recent edition of Best's
Key-Rating guide. Tenant's comprehensive general liability insurance policy
shall be endorsed to provide that (i)it may not be canceled or altered in such
a manner as to adversely affect the coverage afforded thereby without thirty
(30)days' prior written notice to Landlord, (ii)Landlord is designated as an
additional insured, (iii)the insurer acknowledges acceptance of the mutual
waiver of claims by Landlord and Tenant pursuant to Section 10.2(b)below, and
(iv)such insurance is primary with respect to Landlord and that any other
insurance maintained by Landlord is excess and noncontributing with such
insurance. If, in the opinion of Xxxxxxxx's lender or in the commercially
reasonable opinion of Xxxxxxxx's insurance adviser, the specified amounts of
coverage are no longer adequate, such coverage shall, within thirty
(30)days'written notice to Tenant, be appropriately increased. Prior to the
commencement of the Term, Tenant shall deliver to Landlord a duplicate of such
policy or a certificate thereof to Landlord for retention by it with
endorsements. At least thirty (30)days prior to the expiration of such policy
or any renewal or modification thereof, Tenant shall deliver to Landlord a
replacement or renewal binder, followed by a duplicate policy or certificate
within a reasonable time thereafter. If Tenant fails to obtain such insurance
or to furnish Landlord any such duplicate policy or certificate as herein
required, Landlord may, at its election, without notice to Tenant and without
any obligation to do so, procure and maintain such coverage and Tenant shall
reimburse Landlord on demand as additional rent for any premium so paid by
Landlord.
11.3. Waiver of Claims. Landlord waives all claims against Xxxxxx and
Xxxxxx's officers, directors, partners, employees, agents and representatives
for loss or damage to the extent that such loss or damage is insured against
under any valid and collectable insurance policy insuring Landlord or would
have been insured against but for any deductible amount under any such policy.
Tenant waives all claims against Landlord and Xxxxxxxx's officers, directors,
partners, employees, affiliates, joint venturers, members, trustees, owners,
shareholders, principals, agents, representatives, successors and assigns, for
loss or damage to the extent such loss or damage is insured against under any
valid and collectable insurance policy insuring Tenant or required to be
maintained by Tenant under this Lease, or would have been insured against but
for any deductible amount under any such policy. The insuring party shall,
upon obtaining the policies of insurance required under this Lease, give
notice to the insurance carrier or carriers that the foregoing mutual waiver
of subrogation is contained in this Lease. Xxxxxx agrees that in the event of
a sale, assignment or transfer of the Premises by Landlord, this waiver of
subrogation shall continue in favor of the original Landlord and any
subsequent Landlord.
11.4. Landlord's Insurance. During the Term, Landlord shall keep the
Building insured against loss or damage by (i)fire, with extended coverage and
vandalism, malicious mischief and special extended perils (all
risk)endorsements or their equivalents, in amounts not less than one hundred
percent (100%)of the replacement cost of the Building and structures insured,
and (ii)flood, in the maximum amount provided for by FEMA under its flood loss
insurance program, with loss payable thereunder to Landlord and to any
authorized encumbrancer of Landlord (with standard mortgage loss payable
clause) in accordance with their respective interests. Landlord may maintain
rent insurance, for the benefit of Landlord, equal to at least one year's Base
Rent hereunder. If this Lease is terminated as a result of damage by fire,
casualty or earthquake, all insurance proceeds shall be paid to and retained
by Landlord, subject to the rights of any authorized encumbrancer of Landlord.
11.5 Earthquake. Tenant acknowledges that Xxxxxxxx does not, at the
time of the signing of this Lease, insure the Building for earthquake damage.
Landlord may, when Landlord deems the premiums to be reasonable, insure the
Building fully or partially for earthquake damage. At such time, the premium
for earthquake insurance will be added to the Operating Expenses for purposes
of determining additional rent.
11.6. Indemnity. Tenant waives all claims against Landlord for any
injury to Xxxxxx's business or loss of income there from, damage to any
property or injury to or death of any person in, on, or about the Premises,
the Building, or any other portion of the Project arising at any time and from
any cause, unless caused by the active negligence or willful misconduct of
Landlord or its agents, employees or contractors. Tenant shall indemnify,
defend (by counsel reasonably satisfactory to Landlord)and hold harmless
Landlord, and Landlord's officers, directors, partners, employees, affiliates,
joint venturers, members, trustees, owners, shareholders, principals, agents,
representatives, successors and assigns, from and against all claims, costs,
damages, actions, indebtedness and liabilities (except such as may arise from
the active negligence or willful misconduct of Landlord, and Xxxxxxxx's
officers, directors, partners, employees, affiliates, joint venturers,
members, trustees, owners, shareholders, principals, agents, representatives,
successors and assigns)arising by reason of any death, bodily injury, personal
injury, property damage or any other injury or damage in connection with
(i)any condition or occurrence in or about or resulting from any condition or
occurrence in or about the Premises during the Term, or (ii)any act or
omission of Tenant, or Tenant's agents, representatives, officers, directors,
shareholders, partners, employees, successors and assigns, wherever it occurs.
The foregoing indemnity obligation of Tenant shall include reasonable
attorneys'fees, and all other reasonable costs and expenses incurred by
Landlord from the first notice that any claim or demand is to be made. The
provisions of this Section 11.6 shall survive the termination or expiration of
this Lease with respect to any damage, injury, or death occurring prior to
such expiration or termination.
12. Damage or Destruction.
12.1. Xxxxxxxx's Obligation to Rebuild. Subject to the provisions of
Sections 12.2, 12.3 and 12.4 below, if, during the Term, the Premises are
totally or partially destroyed. from any insured casualty, Landlord shall,
within ninety (90)days after the destruction, commence to restore the Premises
to substantially the same condition as they were in immediately before the
destruction and prosecute the same diligently to completion. Such destruction
shall not terminate this Lease. Landlord's obligation shall not include repair
or replacement of Tenant's alterations or Tenant's equipment, furnishings,
fixtures and personal property. If the existing laws do not permit the
Premises to be restored to substantially the same condition as they were in
immediately before destruction, and Landlord is unable to get a variance to
such laws to permit the commencement of restoration of the Premises within the
90-day period, then either party may terminate this Lease by giving written
notice to the other party within thirty (30)days after expiration of the
90-day period.
12.2. Right to Terminate. Landlord shall have the option to terminate
this Lease if the Premises or the Building is destroyed or damaged by fire or
other casualty, regardless of whether the casualty is insured against under
this Lease, if Landlord reasonably determines that (i)there are insufficient
insurance proceeds made available to Landlord to pay all of the costs of the
repair or restoration or (ii)the repair or restoration of the Premises or the
Building cannot be completed within one hundred eighty (1 SO)days after the
date of the casualty. If Landlord elects to exercise the right to terminate
this Lease as a result of a casualty, Landlord shall exercise the right by
giving Tenant written notice of its election to terminate this Lease within
forty-five (45) days after the date of the casualty, in which event this Lease
shall terminate fifteen (15)days after the date of the notice. If Landlord
does not exercise its right to terminate this Lease, Landlord shall promptly
commence the process of obtaining all of the necessary permits and approvals
for the repair or restoration of the Premises or the Building as soon as
practicable and thereafter prosecute the repair or restoration of the Premises
or the Building diligently to completion and this Lease shall continue in full
force and effect.
12.3. Last Year of Term. In addition to Landlord's right to
terminate this Lease under Section 12.2., Landlord shall have the right to
terminate this Lease upon thirty (30) days' prior written notice to Tenant if
the Premises or Building is substantially destroyed or damaged during the last
twelve (12) months of the Term. Landlord shall notify Tenant in writing of
its election to terminate this Lease under this Section 12.3., if at all,
within forty-five (45) days after Landlord determines that the Premises or
Building has been substantially destroyed. If Landlord does not elect to
terminate this Lease, the repair of the Premises or Building shall be governed
by Sections 12.1, 12.2 and 12.4.
12.4 Uninsured Casualty. If the Premises are damaged from any
uninsured casualty to any extent whatsoever, Landlord may within ninety (90)
days following the date of such damage: (i) commence to restore the Premises
to substantially the same condition as they were in immediately before the
destruction and prosecute the same diligently to completion, in which event
this Lease shall continue in full force and effect; or (ii)within the 90-day
period Landlord may elect not to so restore the Premises, in which event this
Lease shall cease and terminate. In either such event, Landlord shall give
Tenant written notice of its intention within the 90-day period.
12.5. Abatement of Rent. In the event of destruction or damage to the
Premises which materially interferes with Xxxxxx's use of the Premises, if
this Lease is not terminated as above provided, there shall be an abatement or
reduction of Base Rent between the date of destruction and the date Landlord
substantially completes its reconstruction obligations, based upon the extent
to which the destruction materially interferes with Xxxxxx's use of the
Premises. All other obligations of Tenant under this Lease shall remain in
full force and effect. Except for abatement of Base Rent, Tenant shall have no
claim against Landlord for any loss suffered by Tenant due to damage or
destruction of the Premises or any work of repair undertaken as herein
provided.
12.6. Waiver. The provis*ions of California Civil Code Sections
1932(2)and 1933(4), and any successor statutes, are inapplicable with respect
to any destruction of the Premises, such sections providing that a lease
terminates upon the destruction of the Premises unless otherwise agreed
between the parties to the contrary.
13. Eminent Domain.
13.1. Condemnation. If all or any part of the Premises shall be taken
as a result of the exercise of the power of eminent domain or sold in lieu of
Condemnatory (" Condemned"), this Lease shall terminate as to the part so
taken as of the date of title vesting in such proceeding. In the case of a
partial condemnation of greater than fifty percent (50%)of the rentable area
of the Premises, either Landlord or Tenant shall have the right to terminate
this Lease as to the balance of the Premises by notice to the other within
thirty (30)days after the date of title vesting in such proceeding. In the
event of a partial condemnation of the Premises which does not result in a
termination of this Lease, the monthly Base Rent thereafter to be paid shall
be equitably reduced on a rentable square footage basis. If the continued
occupancy of Tenant is materially interfered with for any time during the
partial taking, notwithstanding the partial taking does not terminate this
Lease as to the part not so taken, the Base Rent shall proportionately xxxxx
so long as Tenant is not able to continuously occupy the part remaining and
not so taken.
13.2. Award. If the Premises are wholly or partially Condemned,
Landlord shall be entitled to the entire award paid in connection with such
condemnation, and Tenant waives any right or claim to any part thereof from
Landlord or the condemning authority. Tenant shall have the right to claim
and recover from the condemning authority, but not from Landlord, such
compensation as may be separately awarded or recoverable by Tenant in Tenant's
own right on account of any and all costs which Xxxxxx might incur in moving
Tenant's merchandise, furniture, fixtures, leasehold improvements and
equipment to a new location.
14. Assignment and Subletting.
14.1. Assignment and Subletting; Prohibition. Tenant shall not assign,
mortgage, pledge or otherwise transfer this Lease, in whole or in part (each
hereinafter referred to as an "assignment"), nor sublet or permit occupancy by
any party other than Tenant of all or any part of the Premises (each
hereinafter referred to as a "sublet" or "subletting"), without the prior
written consent of Landlord in each instance, which consent shall not be
unreasonably withheld. No assignment or subletting by Tenant shall relieve
Tenant of any obligation under this Lease, including Xxxxxx's obligation to
pay Base Rent and additional rent hereunder. Any purported assignment or
subletting contrary to the provisions of this Lease without Landlord's prior
written consent shall be void. The consent by Landlord to any assignment or
subletting shall not constitute a waiver of the necessity for obtaining
Landlord's consent to any subsequent assignment or subletting. Landlord may
consent to any subsequent assignment or subletting, or any amendment to or m
modification of this Lease with the 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 or any successor of Tenant
of any liability under this Lease. As additional rent hereunder, Xxxxxx shall
reimburse Landlord for all reasonable legal fees and other expenses incurred
by Landlord in connection with any request by Xxxxxx for consent to an
assignment or subletting.
14.2. Information to be Furnished. If Tenant desires at any time to
assign its interest in this Lease or sublet the Premises, Tenant shall first
notify Landlord of its desire to do so and shall submit in writing to
Landlord: (i)the name of the proposed assignee or subtenant; (ii)the nature of
the proposed assignee's or subtenant's business to be conducted in the
Premises; (iii)the terms and provisions of the proposed assignment or
sublease, including the date upon which the assignment shall be effective or
the commencement date of the sublease (hereinafter referred to as the
"Transfer Effective Date")and a copy of the proposed form of assignment or
sublease; and (iv)such financial information, including financial statements,
and other information as Landlord may reasonably request concerning the
proposed assignee or subtenant.
14.3. Landlord's Election. At any time within thirty (30)days after
Xxxxxxxx's receipt of the information specified in Section 14.2, Landlord may,
by written notice to Tenant, elect to (i)terminate this Lease as to the space
in the Premises that Xxxxxx proposes to sublet; (ii) terminate this Lease as
to the entire Premises (available only if Tenant proposes to assign all of its
interest in this Lease or the total amount of rentable square feet of space
that Tenant proposes to sublease, together with the aggregate amount of
rentable square feet of space in the Premises previously subleased by Tenant
or recaptured by Landlord pursuant to this Section, exceeds fifty percent
(50%)or more of the original Premises), (iii)consent to the proposed
assignment or subletting by Tenant; or (iv)withhold its consent to the
proposed assignment or subletting by Tenant.
14.4. Termination. If Landlord elects to terminate this Lease with
respect to all or a portion of the Premises pursuant to Section 14.3(i)or
(ii)above, this Lease shall terminate effective as of the later of (a)the one
hundred twentieth (120th)day after Landlord notifies Tenant in writing of its
election to terminate this Lease or (b)the Transfer Effective Date. If
Landlord terminates this Lease with respect to less than all of the Premises,
Tenant shall, at Landlord's sole election, either (i)reimburse Landlord for
all costs incurred by Landlord in partitioning the Premises to provide the
occupants of each premises commercially reasonable and secured access to their
respective premises, legal fire exits, access to bathrooms and utility rooms
and loading facilities, and in separately metering all utility services
(including heating and air conditioning zoning)servicing each premises,
including all design, permitting and construction costs, or (ii)perform, at
Tenant's sole cost and expense, all the work described in subsection (i)
relating to the partitioning of the Premises to Landlord's reasonable
satisfaction, all in accordance with plans approved by Landlord. Tenant shall
reimburse Landlord upon demand for all costs incurred by Landlord in reviewing
the plans for the partitioning work and all other related work.
14.5. Withholding Consent. Without limiting other situations in which
it may be reasonable for Landlord to withhold its consent to any proposed
assignment or sublease, Landlord and Tenant agree that it shall be reasonable
for Landlord to withhold its consent in any one (1)or more of the following
situations: (1)in Landlord's reasonable judgment, the proposed subtenant or
assignee or the proposed use of the Premises would detract from the status of
the Building as a first-class office building, generate vehicle or foot
traffic, parking or occupancy density materially in excess of the amount
customary for the Building or the Project or result in a materially greater
use of the elevator, janitorial, security or other Building services (e. g.,
HVAC, trash disposal and sanitary sewer flows)than is customary for the
Project; (2)in Landlord's reasonable judgment, the creditworthiness of the
proposed subtenant or assignee does not meet the credit standards applied by
Landlord in considering other tenants for the lease of space in the Project on
comparable terms, or Tenant has failed to provide Landlord with reasonable
proof of the creditworthiness of the proposed subtenant or assignee; (3)in
Landlord's reasonable judgment, the business history, experience or reputation
in the community of the proposed subtenant or assignee does not meet the
standards applied by Landlord in considering other tenants for occupancy in
the Project; (4) the proposed assignee or subtenant is a governmental entity,
agency or department or the United States Post Office; or (5) the proposed
subtenant or assignee is a then existing or prospective tenant of the Project.
If Landlord fails to elect either of the alternatives within the thirty (30)
day period referenced in Section 14.3, it shall be deemed that Landlord has
refused its consent to the proposed assignment or sublease.
14.6. Bonus Rental. If, in connection with any assignment or
sublease, Tenant receives rent or other consideration, either initially or
over the term of the assignment or sublease, in excess of such Rent called for
hereunder, or in case of the sublease of a portion of the Premises, in excess
of such Rent fairly allocable to such portion, Tenant shall pay to Landlord,
as additional rent hereunder, fifty percent (50%) of the excess of each such
payment of Rent or other consideration received by Tenant promptly after
Xxxxxx's receipt of such Rent or other consideration. To the extent that a
subtenant or assignee pays the leasing commissions or brokerage fees incurred
in connection with the assignment or sublease, the cost of partitioning the
Premises for multiple occupancy, or any other costs or expenses normally paid
by a landlord in connection with a lease of commercial office property located
in Santa Xxxx, or a sublandlord in connection with a sublease of office space
in Santa Xxxx, or the subtenant purchases goods or services from sublandlord
or an affiliate of sublandlord for an amount in excess of the fair market
value for such goods or services, such costs incurred or amounts expended
shall be deemed to be "other consideration" for purposes of calculating excess
Rent due to Landlord hereunder.
14.7. Scope. The prohibition against assigning or subletting contained
in this Section 14 shall be construed to include a prohibition against any
assignment or subletting by operation of law, If this Lease is assigned, or if
the underlying beneficial interest of Tenant is transferred, or if the
Premises or any part thereof is sublet or occupied by anybody other than
Tenant, Landlord may collect rent from the assignee, subtenant or occupant and
apply the net amount collected to the Rent due herein and apportion any excess
rent so collected in accordance with the terms of Section 14.6, but no such
assignment, subletting, occupancy or collection shall be deemed a waiver of
the provisions regarding assignment and subletting, or the acceptance of the
assignee, subtenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. No assignment or subletting shall affect the continuing primary
liability of Tenant (which, following assignment, shall be joint and several
with the assignee), and Tenant shall not be released from performing any of
the terms, covenants and conditions of this Lease.
14.8. Executed Counterparts. No sublease or assignment shall be valid,
nor shall any subtenant or assignee take possession of the Premises, until a
fully executed counterpart of the sublease or assignment has been delivered to
Landlord and Landlord, Tenant and the applicable assignee or subtenant have
entered into a consent to assignment or sublease in a form acceptable to
Landlord.
14.9. Transfer of a Majority Interest. If Tenant is a non-publicly
traded corporation, the transfer (as a consequence of a single transaction or
any number of separate transactions)of fifty percent (50%)or more or of a
controlling interest or the beneficial ownership interest of the voting stock
of Tenant issued and outstanding as of the Effective Date shall constitute an
assignment hereunder for which Xxxxxxxx's prior written consent is required.
If Tenant is a partnership, limited liability company, trust or an
unincorporated association, the transfer of a controlling or majority interest
therein shall constitute an assignment hereunder for which Xxxxxxxx's prior
written consent is required.
15. Default by Tenant.
15.1. Events of Default. The occurrence of any of the following events
shall constitute an event of default on the part of Tenant under this Lease:
15.1.1. Payment. A failure by Tenant to pay Rent within five
(5)days after written notice that such payment is due;
15.1.2. Bankruptcy. The bankruptcy or insolvency of Tenant, any
transfer by Xxxxxx to defraud creditors, any assignment by Tenant for the
benefit of creditors, or the commencement of any proceedings of any kind by or
against Tenant under any provision of the Federal Bankruptcy Act or under any
other insolvency, bankruptcy or reorganization act unless, in the event any
such proceedings are involuntary, Tenant is discharged from the same within
sixty (60) days thereafter; the appointment of a receiver for a substantial
part of the assets of Tenant; or the levy upon this Lease or any estate of
Tenant hereunder by any attachment or execution;
15.1.3. Abandonment or Vacation. The abandonment or vacation of
the Premises;
15.1.4. Performance of Lease Terms. Tenant's failure to perform
any of the terms, covenants, agreements or conditions of this Lease to be
observed or performed by Tenant (excluding any event of default under Section
15.1.1 above), which default has not been cured within thirty (30) days after
written notice thereof by Landlord to Tenant; provided, however, that if the
nature of the default is such that the same cannot reasonably be cured within
the 30-day period, Tenant shall not be deemed to be in default if within such
period Tenant shall commence such cure and thereafter diligently prosecute the
same to completion; and
15.1.5. Failure to Comply. Xxxxxx's failure to comply with the
provisions contained in Sections 18 and 19.
An event of default shall constitute a default by Tenant under this Lease. In
addition, any notice required to be given by Landlord under this Lease shall
be in lieu of, and not in addition to, any notice required under Section 1161
of the California Civil Code of Procedure. Tenant shall pay to Landlord the
amount of Two Hundred Fifty Dollars ($250.00)for each notice of default given
to Tenant under this Lease, which amount is the amount the parties reasonably
estimate will compensate Landlord for the cost of giving such notice of
default.
15.2. Remedies. In the event of any default or breach by Tenant,
Landlord may at any time thereafter, without limiting Landlord in the exercise
of any right or remedy at law or in equity which Landlord may have by reason
of such default or breach:
15.2.1. Continue Lease. Pursue the remedy described in California
Civil Code Section 195 1.4 whereby Landlord may continue this Lease in full
force and effect after Xxxxxx's breach and recover the Rent and any other
monetary charges as they become due, without terminating Tenant's right to
sublet or assign this Lease, subject only to reasonable limitations as herein
provided. During the period Tenant is in default, Landlord shall have the
right to do all acts necessary to preserve and maintain the Premises as
Landlord deems reasonable and necessary, including removal of all persons and
property from the Premises, and Landlord can enter the Premises and relet
them, or any part of them, to third parties for Xxxxxx's account. Tenant shall
be liable immediately to Landlord for all costs Landlord incurs in reletting
the Premises, including, without limitation, brokers'commissions, expenses of
remodeling the Premises required by the reletting, and like costs. Reletting
can be for a period shorter or longer than the remaining Term.
15.2.2. Perform. Pay or perform such obligation due (but shall
not be obligated to do so), if Tenant fails to pay or perform any obligations
when due under this Lease within the time permitted for their payment or
performance. In such case, the costs incurred by Landlord in connection with
the performance of any such obligation will be Additional Rent due under this
Lease and will become due and payable on demand by Landlord.
15.2.3. Terminate. Terminate Tenant's rights to possession by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default, including, without limitation, the
following: (A)the worth at the time of award of any unpaid Rent which had been
earned at the time of such termination; plus (B)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 Rent loss that
is proved could have been reasonably avoided; plus (C)the worth at the time of
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 Rent loss that is proved could be
reasonably avoided; plus (D)any other amount necessary to compensate Landlord
for all the detriment proximately caused by Xxxxxx's failure to perform its
obligations under this Lease or which in the ordinary course of events would
be likely to result therefrom; plus (E)at Landlord's election, such other
amounts in addition to or in lieu of the foregoing as may be permitted from
time to time by applicable State law. In addition, Landlord shall be entitled
to recover from Tenant the unamortized portion of any tenant improvement
allowance, free rent or other allowance provided by Landlord to Tenant and any
brokerage commission or finders fee paid or incurred by Landlord in connection
with this Lease (amortized with interest at the Interest Rate on a straight-
line basis over the original term of this Lease). Upon any such termination
of Xxxxxx's possessory interest in and to the Premises, Tenant (and at
Landlord's sole election, Xxxxxx's sublessees) shall no longer have any
interest in the Premises, and Landlord shall have the right to make any
reasonable repairs, alterations or modifications to the Premises which
Landlord in its sole discretion deems reasonable and necessary. The "worth at
the time of award" of the amounts referred to in subparagraphs (A) and (B)
above is computed by allowing interest at the maximum rate an individual is
permitted to by law to charge. The worth at the time of award of the amount
referred to in subparagraph (C) above is computed by discounting such amount
at the discount rate of the Federal Reserve Bank of San Francisco at the time
of award plus one percent (1%).
15.2.4. Additional Remedies. Pursue any other legal or equitable
remedy available to Landlord. Unpaid installments of Rent and other unpaid
monetary obligations of Tenant under the terms of this Lease shall bear
interest from the date due at the rate of ten percent (10%)per annum.
15.3. Waiver of Right of Redemption. In the event Tenant is evicted or
Landlord takes possession of the Premises by reason of any default by Tenant
hereunder, Tenant hereby waives any right of redemption or relief from
forfeiture as provided by law.
15.4. Continue. Even though Xxxxxx has breached this Lease and
abandoned the Premises, this Lease shall continue in effect for so long as
Landlord does not terminate Tenant's right to possession, and Landlord may
enforce all its rights and remedies under this Lease, including the right to
recover Rent as it becomes due under this Lease. Acts of maintenance or
preservation, efforts to relet the Premises, or the appointment of a receiver
upon initiative of Landlord to protect Xxxxxxxx's interest under this Lease,
shall not constitute a termination of Tenant's right to possession.
15.5. Tenant's Exercise Rights. In the event Tenant is in default
under any provision of this Lease then, at Landlord's sole election: (i)Tenant
shall not have the right to exercise any available right, option or election
under this Lease (" Tenant's Exercise Rights"), (ii) Tenant shall not have the
right to consummate any transaction or event triggered by the exercise of any
of Tenant's Exercise Rights, and (iii)Landlord shall not be obligated to give
Tenant any required notices or information relating to the exercise of any of
Xxxxxx's Exercise Rights hereunder.
16. Default by Landlord. Landlord shall not be in default under this
Lease unless Landlord, or the holder of any mortgage, deed of trust or ground
lease covering the Premises, fails to perform obligations required of Landlord
within a reasonable time, but in no event later than thirty (30)days after
written notice by Xxxxxx to Landlord certified mail, postage prepaid, and to
the holder of any first mortgage, deed of trust or ground lease covering the
Premises whose name and address shall have been furnished to Tenant in
writing, specifying wherein Landlord has failed to perform such obligations;
provided, however, that if the nature of Landlord's obligation is such that
more than thirty (30)days are required for performance, then Landlord shall
not be in default if Landlord or the holder of any such mortgage, deed of
trust or ground lease commences performance within such 30-day period and
thereafter diligently prosecutes the same to completion. In no event shall
Tenant be entitled to terminate this Lease by reason of Landlord's default,
and Xxxxxx's remedies shall be limited to an action for monetary damages at
law.
17. Security Deposit. Sixty (60)days after execution of this Lease,
Tenant shall deliver to Landlord cash in the amount specified as the Security
Deposit in the Basic Lease Information. The Security Deposit shall be held by
Landlord as security for the performance by Tenant of all of the provisions of
this Lease. If Tenant fails to pay Rent or other charges due hereunder, or
otherwise defaults with respect to any provision of this Lease, Landlord may
use, apply or retain all or any portion of the Security Deposit for the
payment of any Rent or other charge in default, or the payment of any other
sum to which Landlord may become obligated by reason of Tenant's default, or
to compensate Landlord for any loss or damage which Landlord may suffer
thereby. If Landlord so uses or applies all or any portion of the Security
Deposit, then within ten (IO)days after demand therefor Tenant shall deposit
cash with Landlord in an amount sufficient to restore the deposit to the full
amount thereof, and Xxxxxx's failure to do SO shall be a material breach of
this Lease. Landlord shall not be required to keep the Security Deposit
separate from its general accounts. If Xxxxxx performs all of Tenant's
obligations hereunder, the Security Deposit, or so much thereof as has not
theretofore been applied by Landlord, shall be returned to Tenant without
payment of interest for its use (or, at Xxxxxxxx's option to the last
assignee, if any, of Xxxxxx's interest hereunder) within thirty (30) days
after the expiration or earlier termination of this Lease, and after Tenant
has vacated the Premises. No trust relationship is created herein between
Landlord and Tenant with respect to the Security Deposit.
18. Estoppel Certificate.
18.1. Obligation to Execute Estoppel. Tenant shall within ten (10)
days after notice from Landlord, execute, acknowledge and deliver to Landlord
a statement certifying (i) that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect), (ii)
the amount of the Rent and the Security Deposit, (iii)the date to which the
Rent has been paid, (iv)acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder, or
specifying such defaults, if any are claimed, and (v)such other matters as may
reasonably be requested by Landlord. Any such statement may be conclusively
relied upon by Landlord an any prospective purchaser or encumbrancer of the
Building.
18.2. Failure to Execute Estoppel. Tenant's failure to deliver such
statement within such time shall be conclusive upon Tenant that (i)this Lease
is in full force and effect, without modification except as may be represented
by Landlord, (ii)there are no uncured defaults in Landlord's performance, and
(iii)not more than one month's Base Rent has been paid in advance.
18.3. Financial Statements. If Landlord desires to sell all or any
portion of its interest in the Building or the Project or to finance or
refinance the Building or the Project, Tenant agrees to deliver to Landlord
and any lender or prospective purchaser designated by Landlord such financial
statements of Tenant as may be reasonably required by Landlord or such lender
or prospective purchaser. All such financial statements shall be received by
Landlord in confidence and shall be used for the purposes herein set forth. In
addition, within ten (10)days after Xxxxxxxx's written request, Xxxxxx shall
deliver to Landlord Xxxxxx's most current quarterly and annual financial
statements audited by Xxxxxx's certified public accountant. If audited
financial statements are not available, Tenant shall deliver to Landlord
Xxxxxx's financial statements certified to be true and correct by Xxxxxx's
chief financial officer. Tenant's annual financial statements shall not be
dated more than twelve (12)months prior to the date of Landlord's request.
19. Subordination. This Lease, at Landlord's sole option, shall be
subordinate to any ground lease, mortgage, deed of trust, or any other
hypothecation for security now or hereafter placed upon the Building and to
any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements, refinancings and extensions
thereof. Notwithstanding such subordination, Xxxxxx's right to quiet
possession of the Premises shall not be disturbed if Tenant is not in default
and so long as Tenant shall pay the Rent and observe and perform all of the
provisions of this Lease, unless this Lease is otherwise terminated pursuant
to its terms. If any mortgagee, trustee or ground lessor shall elect to have
this Lease prior to the lien of its mortgage, deed of trust or ground lease,
and shall give notice thereof to Tenant, this Lease shall be deemed prior to
such mortgage, deed of trust, or ground lease, whether this Lease is dated
prior to or subsequent to the date of said mortgage, deed of trust or ground
lease or the date of recording thereof. If any mortgage or deed of trust to
which this Lease is subordinate is foreclosed or a deed in lieu of foreclosure
is given to the mortgagee or beneficiary, Tenant shall attorn to the purchaser
at the foreclosure sale or to the grantee under the deed in lieu of
foreclosure; if any ground lease to which this Lease is subordinate is
terminated, Tenant shall attorn to the ground lessor. Xxxxxx agrees to execute
any documents required to effectuate such subordination or to make this Lease
prior to the lien of any mortgage, deed of trust or ground lease, as the case
may be, or to evidence such attornment. Any such document of attornment shall
also provide that the successor shall not disturb Tenant in its use of the
Premises in accordance with this Lease.
20. Attorneys' Fees. If Landlord uses the services of an attorney in
order to secure Tenant's compliance with the terms of this Lease, Tenant shall
reimburse Landlord upon demand for any and all attorneys'fees and expenses
incurred by Landlord, whether or not formal legal proceedings are instituted
by Landlord. In any action or proceeding which Landlord or Xxxxxx brings
against the other party in order to enforce its respective rights hereunder or
by reason of the other party failing to comply with all of its obligations
hereunder, whether for declaratory or other relief, the unsuccessful party
therein agrees to pay all costs incurred by the prevailing party therein,
including reasonable attorneys' fees, to be fixed by the court, and said costs
and attorneys' fees shall be made a part of the judgment in said action. A
party shall be deemed to have prevailed in any action (without limiting the
definition of prevailing party) if such action is dismissed upon the payment
by the other party of the amounts allegedly due or the performance of
obligations which were allegedly not performed, or if such party obtains
substantially the relief sought by such party in the action, regardless of
whether such action is prosecuted to judgment.
21. Notices. All notices, consents, demands, and other communications
from one party to the other given pursuant to the terms of this Lease shall be
in writing and shall be personally delivered, delivered by courier service,
sent via facsimile (confirmation receipt required), or deposited in the United
States mail, certified or registered, postage prepaid, and addressed as
follows: To Tenant at the address specified in the Basic Lease Information or
to such other place as Tenant may from time to time designate in a notice to
Landlord; to Landlord at the address specified in the Basic Lease Information,
or to such other place and to such other parties as Landlord may from time to
time designate in a notice to Tenant. All notices shall be effective upon
delivery or refusal of delivery.
22. General Provisions.
22.1. Applicable Law. This Lease shall be governed by and construed in
accordance with the internal laws of the State of California, notwithstanding
any choice of law statutes, regulations, provisions or requirements to the
contrary.
22.2. Severability. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
22.3. Entire Agreement. This Lease, including attached Exhibits,
Addenda, and Basic Lease Information, contains all agreements and
understandings of the parties and supersedes and cancels any and all prior or
contemporaneous written or oral agreements, instruments, understandings, and
communications of the parties with respect to the subject matter herein. This
Lease, including the attached Exhibits, Addenda, and Basic Lease Information,
may be modified only in a writing signed by each of the parties. The Exhibits,
Addenda and Basic Lease Information attached to this Lease are incorporated
herein by reference.
22.4. Waiver. No waiver of any provision hereof by either party shall
be deemed by the other party to be a waiver of any other provision, or of any
subsequent breach of the same provision. Landlord's or Tenant's consent to, or
approval of, any act shall not be deemed to render unnecessary the obtaining
of Landlord's or Tenant's consent to, or approval of, any subsequent act by
the other party.
22.5. Holdover. Should Tenant, or any of its successors in interest,
hold over in the Premises, or any part thereof, after the expiration of the
Term unless otherwise agreed to in writing, such holding over shall constitute
and be construed as'tenancy from month-to-month only, at a monthly rent equal
to the greater of (i)twice the Base Rent owed during the final year of the
Term, as the same may have been extended, together with the Additional Rent
due under this Lease, or (ii)fair market rent for the Premises, as reasonably
determined by Landlord. The inclusion of the preceding sentence shall not be
construed as Landlord's permission for Tenant to hold over. In addition,
Xxxxxx shall indemnify, protect, defend and hold harmless Landlord for all
losses, expenses and damages, including any consequential damages incurred by
Landlord, as a result of Tenant failing to surrender the Premises to Landlord
and vacate the Premises by the end of the Term.
22.6. Successors and Assigns. Subject to the provisions of this Lease
restricting assignment or subletting by Xxxxxx, this Lease shall bind the
parties, their personal representatives, successors and assigns.
22.7. Entry. Upon reasonable prior notice to Tenant (which notice
shall not be required in the event of an emergency), Landlord and Landlord's
representatives and agents shall have the right to enter the Premises during
regular business hours for the purpose of inspecting the same, showing the
same to prospective purchasers or lenders, and making such alterations,
repairs, improvements, or additions to the Premises, the Building or the
Common Areas as Landlord may deem necessary or desirable. Landlord may at any
time during the last nine (9) months of the Term place on or about the
Premises any ordinary "For Lease" sign. Landlord may at any time place on or
about the Premises any ordinary "For Sale" sign.
22.8. Subleases. The voluntary or other surrender of this Lease by
Xxxxxx, the mutual cancellation thereof or the termination of this Lease by
Landlord as a result of Tenant's default shall, at the option of Landlord,
terminate all or any existing substenancies or may, at the option of Landlord,
operate as an assignment to Landlord of any or all of such subtenancies.
22.9. Limitation on Liability. In the event that Landlord or any
successor owner of the Building sells or conveys the Building, then all
liabilities and obligations of Landlord or the successor owner under this
Lease accruing after the sale or conveyance shall terminate and become binding
on the new owner, and Tenant shall release Landlord from all liability under
this Lease (including, without limitation, the Security Deposit), except for
acts or omissions of Landlord occurring prior to such sale or conveyance.
Tenant expressly agrees that (i)the obligations of Landlord shall not
constitute personal obligations of the officers, directors, partners,
employees, affiliates, joint venturers, members, trustees, owners,
shareholders, or other principals, agents or representatives of Landlord ("
Member of Landlord"), and (ii)Tenant shall have recourse only to Landlord's
interest in the Building of which the Premises are a part for the satisfaction
of such obligations and not against the other assets of Landlord. In this
regard, Xxxxxx agrees that in the event of any actual or alleged failure,
breach or default by Landlord of its obligations under this Lease, that (i)no
Member of Landlord shall be sued or named as a party in any suit or action
(except as may be necessary to secure jurisdiction of Landlord), (ii)no
judgment will be taken against any Member of Landlord, and any judgment taken
against any Member of Landlord may be vacated and set aside at any time
without hearing, (iii)no writ of execution will ever be levied against the
assets of any Member of Landlord, and (iv)these agreements by Tenant are
enforceable both by Landlord and by any Member of Landlord.
22.10. Authority. If Tenant is a corporation, limited liability
company or partnership, each individual executing this Lease on behalf of
Tenant represents and warrants that he is duly authorized to execute and
deliver this Lease on behalf of the corporation, company or partnership in
accordance with, where applicable, a duly adopted resolution of the board of
directors of the corporation, the vote of the members of the limited liability
company or the vote of the partners within the partnership, and that this
Lease is binding upon the corporation, company or partnership in accordance
with its respective articles of incorporation and bylaws, operating agreement
or partnership agreement.
22.11. Time Time. is expressly declared to be of the essence of this
Lease and of each and every covenant, term, condition, and provision hereof.
22.12. Joint and Several Liability. If there is more than one party
comprising Tenant, the obligations imposed on Tenant shall be joint and
several.
22.13. Construction. The language in all parts of this Lease shall be
in all cases construed as a whole according to its fair meaning and not
strictly for nor against either Landlord or Tenant.
22.14. Definitions. As used in this Lease and whenever required by the
context thereof, each number, both singular and plural, shall include all
numbers and in each gender shall include all genders. Landlord and Tenant, as
used in this Lease or in any other instrument referred to in or made a part of
this Lease, shall likewise include both the singular and the plural, a
corporation, limited liability company, partnership, individual or person
acting in any fiduciary capacity as executor, administrator, trustee or in any
other representative capacity.
22.15. Exhibits. The Basic Lease Information, Exhibits and Addenda
attached to this Lease and incorporated herein by reference thereto.
22.16. Force Maieure. Any delay in construction, repairs, or
rebuilding any building, improvement or other structure herein shall be
excused and the time limit extended to the extent that the delay is occasioned
by reason of acts of God, labor troubles, laws or regulations of general
applicability, acts of Tenant or Tenant Delays (as the term is defined in the
Work Letter Agreement), or other occurrences beyond the reasonable control of
Landlord. Accordingly, Xxxxxxxx's obligation to perform shall be excused for
the period of the delay and the period for performance shall be extended for a
period equal to the period of such delay.
22.17. Broker's Fee. Each party represents that it has not had
dealings with any real estate broker, finder or other person, with respect to
this Lease in any manner, except the brokerage firm(s) specified in the Basic
Lease Information. Each party shall hold harmless the other party from all
damages resulting from any claim that may be asserted against the other party
by any broker, finder, or other person with whom the other party has or
purportedly has dealt. Landlord shall pay any commissions or fees that are
payable to the broker or finder specified in the Basic Lease Information, with
respect to this Lease in accordance with the provisions of a separate
commission contract.
22.18. Relocation. At any time after Xxxxxx's execution of this
Lease, Landlord shall have the right, upon thirty (30) days' prior written
notice to Tenant, to provide Tenant with reasonably similar space elsewhere in
the Project of approximately the same size as the Premises and to relocate
Tenant to said space. In the event that Landlord shall exercise such right
subsequent to Tenant's occupancy of the Premises, Landlord shall pay all
reasonable costs of moving Tenant to such new space. If Landlord moves Tenant
to such new space, then this Lease and each and all of the terms and covenants
and conditions hereof shall remain in full force and effect and thereupon be
deemed applicable to such new space, except that the new space shall be
substituted for the current space, a revised floor plan shall become part of
this Lease and shall reflect the location of the new space and Base Rent shall
be proportionately adjusted to reflect any change in the rentable square
footage of the new space as compared to the original Premises. Should Tenant
refuse to permit Landlord to move Tenant to such new space, Landlord shall
have the right to terminate this Lease by written notice to Tenant, which
termination shall be effective sixty (60)days after the date of Landlord's
original notice of relocation. Nothing contained in this Section 22.18 shall
require Landlord to offer to Tenant to substitute any similar space that
becomes available in the Project for Tenant's existing space or any other
similar space that is or becomes available in the Project if Tenant refuses to
permit Landlord to relocate Tenant to the relocation space initially proposed
by Landlord as a substitute for Xxxxxx's existing space.
22.19. Addendum. The Addendum attached hereto is incorporated herein
by reference. If no Addendum, state "none" in the following space:
IN WITNESS WHEREOF, the parties have executed this Lease on the date
first mentioned above.
"Landlord" "Tenant"
OAK VALLEY BUSINESS CENTER, Q-MATRIX, INC., a Delaware Corporation
LLC, a California limited
liability company
By: G & W Ventures, LLC, By: /s/ Xxxxx Xxxxxxxx
Managing Member Name: Xxxxx Xxxxxxxx
Its: President
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxx
Xxxxxxx X. Xxxxx Name: Xxxxx Xxxxxxx
Manager Its: VP of Operations
ADDENDUM NO. 1
BASE RENT:
LEASE YEAR FULL SERVICE
RENT/SQ. FT-./MONTH
Year 1 (months 1 and 2) Free
Year 1 (months 3-12) $1.75
Years 2-6 (2 months) See Below
At the start of the second lease year and every year of the Term thereafter,
the Base Rent shall be increased by four percent (4%).
DELAY IN DELIVERY OF PREMISES:
In the event that Xxxxxxxx does not deliver possession of the Premises to
Tenant on or before the Commencement Date, Tenant shall receive an abatement
of rent (the "Abatement Credit")as set forth in this Amendment. The Abatement
Credit will equal the product of(i)the number of days after the Commencement
Date until Landlord delivers possession of the Premises to Tenant and (ii)the
dollar amount of one (1)day's Base Rent. Thus, for each day after the
Commencement Date until delivery of the Premises to Tenant, Tenant shall
receive the dollar amount equal to one (1)day's Base Rent. Notwithstanding
anything to the contrary in the foregoing, Xxxx@shall not receive the
Abatement Credit if the actions or omissions of Tenant result in the delay of
Landlord's delivery of the Premises to Tenant.
EXHIBIT A-l
DIAGRAM OF PREMISES
EXHIBIT A-2
DIAGRAM OF PROJECT
EXHIBIT B
WORK LETTER AGREEMENT
LETTER AGREEMENT supplements that certain lease (the "Lease") dated April
8th, 2002, executed by OAK VALLEY BUSINESS CENTER, LLC, a Californi limited
liability company, as Landlord, and Q-MATRIX, INC., a Delaware Corporation, as
Tenant. All capitalized terms not otherwise defined herein shall have the same
meaning as those capitalized terms contained in the Lease.
1. Landlord shall be responsible for constructing within the Premises
the tenant improvements (the "Tenant Improvements")described in the
preliminary space plan (the "Preliminary Space Plan")attached hereto as
Exhibit A-l. The Tenant Improvements for the Premises will be more
particularly described in the plans and construction drawings (the
"Construction Drawings")as approved below. Any additional work (the "Tenant
Extra Improvements")required'under the approved Construction Drawings shall be
at Tenant's sole cost and expense.
2. Following execution of this Lease, Landlord shall arrange for
Landlord's architect to provide to Tenant the Construction Drawings for the
Tenant Improvements and Tenant Extra Improvements. The Construction Drawings
shall indicate the specific requirements of the Premises, outlining in detail
interior partitions, floor coverings, a reflected ceiling plan, plumbing
fixtures and electrical plans (setting forth the electrical requirements of
Tenant), all in conformity with the Preliminary Space Plan. The Construction
Drawings shall include full energy calculations as required by the State of
California and the city agencies.
3. Within three (3)days after receipt of the Construction Drawings,
Tenant shall either approve or disapprove of the Construction Drawings by
written notice to Landlord. If Tenant disapproves of the Construction
Drawings, Tenant shall specify in detail the changes or modifications to the
Construction Drawings required by Tenant. Any such request for changes or
modifications shall be subject to Landlord's approval. If Landlord approves of
Tenant's proposed change or modification, Landlord shall arrange for
Landlord's architect to revise the Construction Drawings and resubmit the
Construction Drawings to Tenant for its review and approval in accordance with
the procedure set forth above. Tenant acknowledges that the Construction
Drawings are subject to the approval of the appropriate government
authorities. It shall be Tenant's responsibility to ensure that the design and
function of the Tenant Improvements and Tenant Extra Improvements are suitable
for Tenant's business and needs. The improvements shall be constructed in
accordance with current building standards, laws, regulations, ordinances and
codes. Landlord shall not be required to install any Tenant Improvements or
Tenant Extra Improvements which do not conform to the Construction Drawings.
4. Landlord shall furnish and install the units and quantities of Tenant
Improvements as set forth on Exhibit A-1. The Tenant Improvements to be paid
by Landlord shall not exceed One Hundred Twenty One Thousand Eight Hundred
Ninety ($12 1,890)and shall include:
(a) The costs of the Preliminary Space Plan and final Construction
Drawings (including the cost of one revision only)and engineering costs
associated with completion of the State of California energy utilization
calculations under Title 24 legislation; and
(b) The costs of obtaining building permits and other necessary
authorizations from the city, county and the State of California.
Any additional units, quantities or costs of the Tenant Improvements
required in accordance with the approved Construction Drawings shall be deemed
Tenant Extra Improvements and shall be paid for by Tenant at the unit cost set
forth in a summary of unit costs to be provided by Landlord.
5. In no event shall the Tenant Improvements payable by Landlord include
(i) the costs of procuring or installing any trade fixtures, equipment,
furniture, furnishings, telephone or computer equipment or wiring or other
personal property ("Personal Property") or (ii) any Change Orders (as the term
is defined in Paragraph 6 below). Such items shall be paid by Tenant.
6. Following Xxxxxx's approval of the Construction Drawings, Tenant may
request changes or modifications thereto (" Change Order"), however, the cost
of any Change Order(s) shall be borne by Tenant. If Tenant shall request any
Change Order, then Landlord shall promptly give Tenant a written estimate of
(a)the cost of engineering and design services to prepare the Change Order,
(b)the cost of work to be performed pursuant to the Change Order, and (c)the
time delay expected because of such requested Change Order. Within three
(3)days after Xxxxxx's receipt of the written estimate, Tenant shall notify
Landlord in writing whether it approves the written estimate. If Tenant
approves the written estimate, then Tenant shall accompany its approval with a
check made payable to Landlord in the amount of the estimated cost of the
Change Order. Upon Xxxxxxxx's completion of the Change Order and submission of
the final cost thereof to Tenant, Tenant shall promptly pay to Landlord any
additional amounts incurred in excess of the written estimate. If such written
authorization and check are not received by Landlord, then Landlord shall not
be obligated to commence work on the Premises and Tenant shall be responsible
for any delay in the completion of the Premises in accordance with Paragraph 7
below.
7. If the Commencement Date of the Lease has not occurred on or before
the Estimated Commencement Date, and if the cause of the delay in the
occurrence of the Commencement Date is attributable to Tenant, then the Lease
shall begin on the date the Commencement Date otherwise would have occurred
but for the Tenant delays (" Tenant Delays"). Tenant Delays shall include,
without limitation, those caused by (a)Tenant's failure to approve the
Construction Drawings within the time period noted above, (b)Tenant's request
for special materials not available when needed for construction in accordance
with the construction schedule, (c)Change Orders, and (d)Xxxxxx's or Tenant's
agents'interference with Xxxxxxxx's work. All costs and expenses occasioned by
a Tenant Delay, including, without limitation, increases in labor or
materials, shall be borne by Tenant.
8. Tenant may, with Xxxxxxxx's written consent, enter the Premises prior
to the Commencement Date solely for the purpose of installing its Personal
Property and telecommunications equipment in the Premises as long as such
entry will not interfere with the orderly construction and completion of the
Premises (hereinafter, "Tenant's Work"). Tenant shall notify Landlord of its
desired time(s)of entry and shall submit for Landlord's written approval the
scope of the Tenant's Work to be performed and the name(s)of the contractor(s)
who will perform such work. Tenant agrees to indemnify, defend and hold
harmless Landlord and any mortgagee, ground lessor or beneficiary of a deed of
trust encumbering, secured by or affecting the Premises or the Building, from
and against any and all claims, actions, losses, liabilities, damages, costs
or expenses (including, without limitation, reasonable attorneys'fees and
claims for worker's compensation)of any nature whatsoever, arising out of or
in connection with the Tenant's Work (including, without limitation, claims
for breach of warranty, personal injury or property damage).
9. During the course of construction, at Tenant's expense, Tenant shall
obtain or maintain public liability and worker's compensation insurance, in
amounts acceptable to Landlord, and which name Landlord and Tenant as parties
insured from and against any and all liability for death of or injury to
person or damage to property caused in or about or by reason of the
construction of the Tenant's Work.
10. Upon substantial completion of the Premises in accordance with the
Construction Drawings, Tenant waives any right or claim against Landlord for
any cause directly or indirectly arising out of the condition of the Premises,
appurtenances thereto, improvements thereon, and equipment therein. Landlord
shall not be liable for any latent or patent defects therein, except that
Landlord warrants the Premises against latent defects for a period of one (1)
year from the date of substantial completion.
12. The Premises shall be deemed "substantially completed" as of the
date that all of the following conditions are satisfied:
(a) The Tenant Improvements have been substantially completed in
accordance with the approved Construction Drawings (except for those punch
list items referenced in Paragraph 13 below), such that Tenant can reasonably
conduct business within the Premises;
(b) A certificate of occupancy and/or finalized building permit has
been issued for the Premises; and
(c) All base building facilities shall be in good operating order
and shall comply and conform with the design specifications furnished by
Tenant; the base building includes the following items: restrooms, a first
floor lobby and elevator cabs, HVAC units on the roof which are distributed to
each floor, sprinkler systems which are distributed around each floor (but
with no drop heads), electrical equipment in the first floor electrical room
and electrical panels on each floor, and a card-key security system for access
to all Building common area exterior doors.
13. Tenant shall inspect the Premises immediately prior to occupancy and
compile and furnish Landlord with a punch list of any missing or deficient
Tenant Improvements. Landlord shall use commercially reasonable efforts to
complete the corrective work noted in the punch list in a prompt, good and
xxxxxxx-like manner. Punch list corrections shall not delay the Commencement
Date, nor shall a delay in making corrections be grounds for a delay or
reduction in any rent payments due Landlord.
14. All floor area calculations are from the center line of the
partitions and the outside line of the exterior and hall walls. No deduction
is allowed for the columns, sprinkler risers, roof drains, or air conditioning
units serving Tenant and located within the Premises.
15. Landlord shall select the manufacturer and vendor of all building
materials and equipment with respect to the Tenant Improvements and Tenant
Extra Improvements to be constructed hereunder.
16. Notwithstanding anything to the contrary contained in the Lease or
this Work Letter, Xxxxxxxx's participation in the preparation of the
Preliminary Space Plan and the Construction Drawings shall not constitute any
representation or warranty, express or implied, that the Preliminary Space
Plans or the Construction Drawings are in conformity with applicable
governmental codes, regulations or rules. Tenant acknowledges and agrees that
the Premises are intended for use by Tenant and the specification and design
requirements for the Tenant Improvements are not within the special knowledge
or experience of Landlord.
17. Tenant shall not mortgage, grant a security interest in or otherwise
encumber all or any portion of the Tenant Improvements.
"Landlord" "Tenant"
OAK VALLEY BUSINESS CENTER, Q-MATRIX, INC., a Delaware Corporation
LLC, a California limited
liability company
By: G & W Ventures, LLC, By: /s/ Xxxxx Xxxxxxxx
Managing Member Name: Xxxxx Xxxxxxxx
Its: President
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxx
Xxxxxxx X. Xxxxx Name: Xxxxx Xxxxxxx
Manager Its: VP of Operations
EXHIBIT C
COMMENCEMENT DATE MEMORANDUM
With respect to that certain lease (" Lease")dated _________________, ____,
between _______________________________, a (" Tenant"), and ______________
______________________, a (" Landlord"), pursuant to which landlord leased to
Tenant and Tenant leased from Landlord approximately rentable square feet of
space (" Premises")in the building located at ___________________________,
Tenant hereby acknowledges and certifies to Landlord as follows:
(1) The Commencement Date is ___________ and the Expiration Date is
____________,
(2) The Premises contain _________ rentable square feet of space; and
(3) Tenant has accepted and is currently in possession of the
Premises and the Premises are acceptable for Tenant's use.
IN WITNESS WHEREOF, this Commencement Date Memorandum is executed this ____
day of _______________, 20___.
"Tenant"
___________________________,
a __________________________
By: _____________________________
Name: ___________________________
Its: ____________________________
EXHIBIT D
RULES AND REGULATIONS
It is further agreed that the following rules and regulations (these "Rules
and Regulations")shall be and are hereby made a part of this Lease, and Xxxxxx
agrees that Tenant's employees and agents, or any others permitted by Tenant
to occupy or enter the Premises, will at all times abide by these Rules and
Regulations, unless otherwise specified or provided for in the Lease, to wit:
1. The driveways, entrances and exits to the Property, sidewalks,
passages, building entries, lobbies, corridors, stairways, and elevators of
the Building shall not be obstructed by Tenant, or Tenant's agents or
employees, or used for any purpose other than ingress and egress to and from
the Premises. Tenant or Tenant's agents or employees shall not loiter on the
lawn areas or other common areas of the Property.
(a) Furniture, freight equipment and supplies will be moved in or
out of the l3uilding only through the rear service entrances or other
entrances designated by Landlord and then only during such hours and in such
manner as may be reasonably prescribed by Landlord. Tenant shall cause its
movers to use only the loading facilities and entrances designated by
Landlord. In the event Tenant's movers damage any part of the Building or
Property, Tenant shall pay to Landlord the amount required to repair said
damage upon Xxxxxxxx's written request.
(b) No safe or article, the weight of which may in the opinion of
Landlord constitute a hazard to or damage to the Building or the Building's
equipment, shall be moved into the Premises without Landlord's prior written
approval, but such consent or approval shall not be unreasonably withheld,
conditioned or delayed. Landlord and Tenant shall mutually agree to the
location of such articles in the Premises. All damage done to the Property,
Building or Premises by putting in, taking out or maintaining extra heavy
equipment shall be repaired at the expense of Tenant.
(c) Landlord reserves the right to close and keep locked any and all
entrances and exits of the Building and Property and gates or doors closing
the parking areas thereof during such hours as Landlord may deem advisable for
the adequate protection of the Property and all tenants therein.
2. Except as otherwise provided for in the Lease, no sign, advertisement
or notice shall be inscribed, painted or affixed on any part of the inside or
outside of the Building unless of such color, size and style and in such place
upon or in the Building as shall be first approved in writing by Landlord. No
furniture or other materials shall be placed in front of the Building or in
any lobby or corridor without the prior written consent of Landlord. Landlord
shall have the right to remove all non permitted signs and furniture without
notice to Tenant.
3. Tenant shall not employ any person or persons other than the janitor
or cleaning contractor of Landlord for the purpose of cleaning or taking care
of the Premises without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, conditioned or delayed. Except as
otherwise provided in the Lease, Landlord shall in no way be responsible to
Tenant for any loss of property from the Premises, however occurring. The
janitor of the Building may at all times keep a pass key, and other agents of
Landlord shall at all times be allowed admittance to the Premises in
accordance with the provisions set forth in the Lease.
4. Water closets and other water fixtures shall not be used for any
purpose other than that for which the same are intended, and any damage
resulting to the same from misuse on the part of Tenant or Tenant's agents or
employees, shall be paid for by Tenant. No person shall waste water by tying
back or wedging the faucets or in any other manner.
5. No animals except see-eye dogs or other animals necessary to the
functioning of handicapped personnel shall be allowed on the lawns or
sidewalks or in the offices, halls, and corridors of the Building.
6. No persons shall disturb the occupants of this or adjoining buildings
or premises by the use of any radio, sound equipment or musical instrument or
by the making of loud or improper noises, or interfere in any way with the
other tenants or those having business with them. Should sound mitigation
measures be required due to sounds originating in the Premises, the costs of
such measures shall be paid for by Tenant.
7. Bicycles or other vehicles, other than wheel chairs, shall not be
permitted in the offices, halls, corridors and lobbies in the Building nor
shall any obstruction of sidewalks or entrances of the Building by such be
permitted.
8. Tenant shall not allow anything to be placed on the outside of the
Building, nor shall anything be thrown by Tenant or Tenant's agents or
employees, out of the windows or doors, or down the corridors, ventilation
ducts or shafts of the Building. Tenant, except in case of fire or other
emergency, shall not open any outside window.
9. No awnings shall be placed over any window or entrance.
10. All garbage, including wet garbage, refuse or trash shall be placed
by Tenant in the receptacles designated by Landlord for that purpose. Tenant
shall not burn any trash or garbage at any time in or about the leased
Premises or any area of the Property. Tenant and Xxxxxx's officers, agents,
and employees shall not throw cigar or cigarette butts or other substances or
litter of any kind in or about the Property.
11. Tenant shall not install or operate any steam or gas engine or
boiler, or other machinery or carry on any mechanical business, other than
such mechanical business which normally is identified with general use in the
Premises. Explosives or other articles of an extra hazardous nature shall not
be brought into the Building complex.
12. Any painting or decorating as may be agreed to be done by and at the
expense of Landlord shall be done during regular weekday working hours. Should
Tenant desire such work on Saturdays, Sundays, holidays or outside of regular
working hours, Tenant shall pay for the extra cost thereof, if any.
13. Tenant and Tenant's agents and employees shall park their vehicles in
areas designated from time-to-time for employee parking.
14. Tenant shall not mark, drive nails, screw, bore, or drill into, paint
or in any way deface the common area walls, exterior walls, roof, foundations,
bearing walls, or pillars without the prior written consent of Landlord. The
expense of repairing any breakage, stoppage or damage resulting from a
violation of this rule shall be borne by Tenant.
15. No waiver of any rule or regulation by Landlord shall be effective
unless expressed in writing and signed by Landlord or his authorized agent.
16. Tenant shall be responsible for cleaning up any trash blowing around
their facility that may have been left by their customers or employees.
17. In the event of any conflict between these Rules and Regulations or
any further or modified rules and regulations from time to time issued by
Landlord, and the Lease provisions, the Lease provisions shall govern and
control.
18. Landlord reserves the right at any time to change or rescind any one
or more of these Rules and Regulations, or to make such other and further
reasonable rules and regulations as in Landlord's judgment may from time to
time be necessary for the management, safety, care and cleanliness of the
Premises, and for the preservation of good order therein, as well as for the
convenience of other tenants of the Property. Landlord shall not be
responsible to Tenant or to any other person for the non-observance or
violation of these Rules and Regulations by any other tenant or person.
Tenant shall be deemed to have read these Rules and Regulations and to have
agreed to abide by them as a condition to its occupancy of the space herein
leased, and Tenant shall abide by any additional rules and regulations which
are ordered or requested by Landlord or by any governmental agency.
