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EXHIBIT 10.47
STANDARD FORM LEASE
PARTIES: This Lease, executed in duplicate at Cupertino, California, on December
31st, 1996, by and between Xxxx & Xxxx Enterprises, Inc., a California
Corporation, and Cisco Systems, Inc., a California Corporation, hereinafter
called respectively Lessor and Lessee, without regard to number or gender.
USE: Witnesseth: That Lessor hereby leases to Lessee, and Lessee hires from
Lessor, for the purpose of conducting therein office, research and development,
light manufacturing, and warehouse activities, and any other legal activity; and
for no other purpose without obtaining the prior written consent of Lessor.
PREMISES: The real property with appurtenances as shown on Exhibit A (the
"Premises") situated in the City of Santa Xxxxx, County of Santa Xxxxx, State of
California, and more particularly described as follows:
65,780 square feet of building, including all improvements thereto, as
shown on Exhibit A.1 including the right to use all parking available
at the Premises. The address for the Premises is 0000 Xxxxxxx Xxxxx
Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx. Lessee's pro-rata share of the building
is 100%.
TERM: The term shall be for thirty-six (36) months unless extended pursuant to
Section 35 of this Lease (the "Lease Term"), commencing on the February 1, 1997
(the "Commencement Date") and ending on the date that is thirty-six (36) months
thereafter.
RIGHT TO TERMINATE: If Lessor is unable to deliver possession of the Premises to
Lessee by April 1, 1997, Lessee shall have the right to terminate this Lease by
providing written notice to Lessor no later than April 15, 1997.
RENT: Base rent shall be payable in monthly installments as follows:
Months 1 through 36 $75,647
Base rent as scheduled above shall be payable in advance on or before the first
day of each calendar month during the Lease Term. The term "Rent," as used
herein, shall be deemed to be and to mean the base monthly rent and all other
sums required to be paid by Lessee pursuant to the terms of this Lease. Rent
shall be paid in lawful money of the United States of America, without offset or
deduction, and shall be paid to Lessor at such place or places as may be
designated from time to time by Lessor. Rent for any period less than a calendar
month shall be a pro rata portion of the monthly installment. Upon execution of
this Lease, Lessee shall deposit with Lessor the first month's base rent.
SECURITY DEPOSIT: Lessee shall deposit with Lessor the sum of Seventy-Five
Thousand Six Hundred Forty-Seven Dollars ($75,647) (the "Security Deposit").
The Security Deposit shall be held by Lessor as security for the faithful
performance by Lessee of all of the terms, covenants, and conditions of this
Lease applicable to Lessee. If Lessee commits a default as provided for herein,
including but not limited to a default with respect to the provisions contained
herein relating to the condition of the Premises, Lessor may (but shall not be
required to) use, apply or retain all or any part of the Security Deposit for
the payment of any amount which Lessor may spend by reason of default by Lessee.
If any portion of the Security Deposit is so used or applied, Lessee shall,
within ten days after written demand therefor, deposit cash with Lessor in an
amount sufficient to restore the Security Deposit to its original amount.
Lessee's failure to do so shall be a default by Lessee. Any attempt by Lessee to
transfer or encumber its interest in the Security Deposit shall be null and
void. Upon execution of this Lease, Lessee shall deposit with Lessor the
Security Deposit. Notwithstanding the above, Lessor agrees to waive the
requirement for Lessee to make a security deposit provided Lessee's
shareholder's equity exceeds $50 million. If at any time during this Lease,
Lessee's shareholder's equity is less than $50 million, Lessee shall deposit
with Lessor the Security Deposit referenced above within ten days after the
issuance of Lessee's financial statements indicating the reduction in
shareholder's equity below $50 million. If Lessee fails to make the Security
Deposit as required, Lessee shall be deemed to be in default per Section 14.1
(a) of this Lease.
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LATE CHARGES: Lessee hereby acknowledges that a late payment made by Lessee to
Lessor of Rent and other sums due hereunder will cause Lessor to incur costs not
contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges, which may be imposed on Lessor
according to the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of Rent or any other sum due from Lessee is not
received by Lessor or Lessor's designee within ten (10) days after such amount
is due, Lessee shall pay to Lessor a late charge equal to five (5%) percent of
such overdue amount. The parties hereby agree that such late charge represents a
fair and reasonable estimate of the costs Lessor will incur by reason of late
payments made by Lessee. Acceptance of such late charges by Lessor shall in no
event constitute a waiver of Lessee's default with respect to such overdue
amount, nor shall it prevent Lessor from exercising any of the other rights and
remedies granted hereunder. No more than once per calendar year, such late
charge shall not be due and payable from Lessee if an installment of Rent or any
other sum due from Lessee is not received by Lessor or Lessor's designee within
said ten (10) day period after such amount is due if Lessee delivers payment of
such overdue amount within five (5) business days after Lessor's delivery of
notice to Lessee that such overdue amount has not been received by Lessor.
QUIET ENJOYMENT: Lessor covenants and agrees with Lessee that upon Lessee paying
Rent and performing its covenants and conditions under this Lease, Lessee shall
and may peaceably and quietly have, hold and enjoy the Premises for the Lease
Term, subject, however, to the rights reserved by Lessor hereunder. Lessor
warrants that it has the full right and authority to execute and perform the
obligations of Lessor under this Lease and to grant the leasehold estate demised
herein.
IT IS FURTHER MUTUALLY AGREED BETWEEN THE PARTIES AS FOLLOWS:
1. POSSESSION: Possession shall be deemed tendered and rent shall commence on
the Commencement Date.
2. LESSEE'S IMPROVEMENTS: Subject to Lessor's obligation set forth in the first
sentence of Section 2.1, Lessor is delivering the Premises to Lessee in an "AS
IS" physical and operating condition. Lessee agrees, at its sole cost and
expense, to improve the entire building to the standard of a typical Cisco
Systems building including carpeting, drop ceiling, VAV HVAC system, and open
office electrical. Lessee shall not be responsible for the cost of restoration
or improvements to the exterior of the building, foundation, exterior walls,
roof membrane, or roof structure unless such costs are a result of Lessee's
application for modifications to the Premises or actual modifications to the
Premises made by Lessee or Lessee's Agents or the acts or omissions of Lessee or
Lessee's Agents. As part of Lessee's initial improvements, Lessee shall be
permitted to reconfigure parking.
2.1 ACCEPTANCE OF PREMISES AND COVENANTS TO SURRENDER: Lessor
represents that the Premises are in good order and repair considering age, and
complies with all requirements for occupancy as of the last remodel by the
former Lessee. Lessor has agreed to this Lease based on a total interior remodel
by Lessee. Lessee agrees on the last day of the Lease Term, or on the sooner
termination of this Lease, to surrender the Premises to Lessor in Good Condition
and Repair. Good Condition and Repair ("Good Condition and Repair") shall not
mean original condition, but shall mean that the Premises are in a commercially
acceptable condition for surrender by a reasonable lessee. The interior walls of
all office and warehouse areas, the floors of all office and warehouse areas,
all suspended ceilings and any carpeting are to be cleaned and in Good Condition
and Repair. Lessee also agrees to surrender unto Lessor all alterations,
additions, and improvements which may have been made in, to, or on the Premises
by Lessee. Lessee, on or before the end of the Lease Term or sooner termination
of this Lease, shall remove all its personal property and trade fixtures from
the Premises, and all such property not so removed shall be deemed to be
abandoned by Lessee. Lessee shall reimburse Lessor for all disposition costs
incurred by Lessor relative to Lessee's abandoned property. If the Premises are
not surrendered at the end of the Lease Term or earlier termination of this
Lease, Lessee shall indemnify Lessor against loss or liability resulting from
any delay caused by Lessee in surrendering the Premises including, without
limitation, any claims made by any succeeding Lessee founded on such delay.
Notwithstanding the foregoing, if (i) Lessee notifies Lessor at least six (6)
months before the end of the Lease Term, (ii) Lessee provides Lessor with a date
certain that Lessee will be vacating the Premises, and (iii) the hold over
requested is for a period of six (6) months or
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less, Lessee shall not be liable for any consequential damages which may result
from the holdover provided the above conditions are met by Lessee, including any
claims pursuant to the foregoing indemnity.
3. USES PROHIBITED: Lessee shall not commit, or suffer to be committed, any
waste upon the Premises, or any nuisance, or other act or thing which may
disturb the quiet enjoyment of any other tenant in or around the buildings in
which the subject Premises are located or allow any sale by auction upon the
Premises, or allow the Premises to be used for any improper, immoral, unlawful
or objectionable purpose, or place any loads upon the floor, walls, or ceiling
which may endanger the structure, or use any machinery or apparatus which will
in any manner vibrate or shake the Premises or the building of which it is a
part, or place any harmful liquids in the drainage system of the building.
Lessee shall not store any materials, including, without limitation, waste
materials or refuse, outside the building proper, except in fully screened or
fenced areas designed for such purpose, which have been approved in writing by
Lessor for such use, subject to any required city approvals. No waste materials
or refuse shall be dumped upon or permitted to remain upon any part of the
Premises outside of the building proper. No materials, supplies, equipment,
finished products or semi-finished products, raw materials or articles of any
nature shall be stored upon or permitted to remain on any portion of the
Premises outside of the building structure, unless approved by the local, state
federal or other applicable governing authority. Lessor consents to Lessee's use
of materials which are incidental to the normal, day-to-day operations of any
office user, such as copier fluids, cleaning materials, etc., but this does not
relieve Lessee of any of its obligations not to contaminate the Premises or
related real property or violated any Hazardous Materials Laws.
4. ALTERATIONS AND ADDITIONS: Lessee shall not make, or suffer to be made, any
alteration or addition to said Premises, or any part thereof in excess of
$15,000 after completion of Lessee's initial improvements, without the express,
advance written consent of Lessor; any addition or alteration to said Premises,
except movable furniture and trade fixtures, shall become at once a part of the
realty and belong to Lessor at the end of the Lease Term or earlier termination
of this Lease. Alterations and additions which are not deemed as trade fixtures
shall include HVAC systems, lighting systems, electrical systems, partitioning,
carpeting, or any other installation which has become an integral part of the
Premises. Lessee agrees that it will not proceed to make such alterations or
additions until all required government permits have been obtained and after
having obtained consent from Lessor to do so, until five (5) days from the
receipt of such consent, so that Lessor may post appropriate notices to avoid
any liability to contractors or material suppliers for payment for Lessee's
improvements. Lessee shall at all times permit such notices to be posted and to
remain posted until the completion of work. At the end of the Lease Term or
earlier termination of this Lease, Lessee shall remove and shall be required to
remove its special tenant improvements and all related equipment installed by
Lessee at or during the Lease Term and Lessee shall return the Premises to the
condition that existed before the installation of the special tenant
improvements. Notwithstanding the above, Lessor agrees to allow any reasonable
standard Cisco System building alterations and improvements as provided for in
Section 2 to remain at the end of the Lease Term or earlier termination of this
Lease.
5. MAINTENANCE OF PREMISES: Lessee shall at its sole cost and expense keep and
maintain the interior of the Premises, including, but not limited to, all
lighting systems, temperature control systems, plumbing systems, and all window
washing, exterior and interior, in Good Condition and Repair, including any
required replacements. Lessee shall maintain all wall surfaces and floor
coverings in Good Condition and Repair, free of holes, gouges, or defacements.
Lessee shall keep and maintain in Good Condition and Repair including
replacements, at Lessee's expense, the following:
1. The exterior of the building, any appurtenances and every part
thereof, including but not limited to, glazing, sidewalks, parking
areas, electrical systems, HVAC systems, elevator systems, roof, and
painting of exterior walls.
2. The HVAC by a service contract with a licensed air conditioning and
heating contractor which contract shall provide for a minimum of
bi-monthly maintenance of all air conditioning and heating equipment at
the Premises including HVAC repairs or
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replacements which are either excluded from such service contract or
any existing equipment warranties.
3. The landscaping by a landscape contract to water, maintain, trim and
replace, when necessary, any shrubbery and landscaping on the Premises.
4. The roof membrane shall be maintained at the expense of Lessor by a
service contract with a licensed reputable roofing contractor which
contract shall provide for a minimum of semi-annual maintenance,
cleaning storm gutters, drains and removing debris and trimming
overhanging trees, repair of the roof, and application of a finish coat
every five years at the Premises. Notwithstanding the terms above
related to the roof, Lessee's total obligation shall be $7,000 per year
to cover any maintenance, repairs, and roof amortization costs.
5. Extermination services.
6. Fire monitoring services.
Lessee hereby waives any and all rights to make repairs at the expense of Lessor
as provided in Section 1942 of the Civil Code of the State of California, and
all rights provided for by Section 1941 of said Civil Code.
Lessor shall be responsible for any structural defects in the Premises including
the roof structure (not membrane), exterior walls and foundation during the
Lease Term.
6. HAZARD INSURANCE: Lessee shall not use, or permit said Premises, or any part
thereof, to be used, for any purpose other than that for which said Premises are
hereby leased; and no use shall be made or permitted to be made of the Premises,
nor acts done, which may cause a cancellation of any insurance policy covering
said building, or any part thereof, nor shall Lessee sell or permit to be kept,
used or sold, in or about said Premises, any article which may be prohibited by
a standard form fire and extended form insurance policy. Lessee shall, at its
sole cost and expense, comply with any and all requirements, pertaining to said
Premises, of any insurance organization or company, necessary for the
maintenance of reasonable fire and general liability insurance, covering said
building and appurtenances. Lessee agrees to purchase and keep in force fire and
extended coverage insurance covering loss or damage to the Premises in an amount
equal to the full replacement cost of said Premises as determined by Lessor,
with proceeds payable to Lessor. For purposes of this Lease, the full
replacement cost of the building shall not be less than $4,900,000. Lessee
acknowledges that the insurance referenced above does not include coverage for
Lessee's personal property. In the event of a loss per the insurance provisions
of this paragraph, Lessee shall be responsible for all deductibles. Lessee
agrees to pay the full cost of said insurance. Lessee shall provide all of the
policies of insurance required in this Lease provided the policies meet the
minimum standards of Lessor ("Lessor's Insurance Standards") as follows and are
paid in full by Lessee: (a) certificates evidencing the insurance required under
this Lease shall be deposited with Lessor thirty (30) days prior to the
Commencement Date, and upon each renewal of such policies, shall be effective
not less than thirty (30) days prior to the expiration date of the term of such
coverage, (b) shall be in a form reasonably satisfactory to Lessor and shall
provide all of the coverage required in this Lease, (c) shall be carried with
companies with a Best Rating of AVIII minimum, (d) shall specifically provide
that such policies shall not be subject to cancellation, reduction of coverage
or other change except after at least thirty (30) days' prior written notice to
Lessor, (e) shall name Lessor, a lender with a security interest in the Premises
identified to Lessee by Lessor, as additional insureds by endorsement to policy
to the extent of the full replacement cost of the Premises, (f) shall provide
the insurance proceeds are payable to Lessor, and (g) shall provide that Lessee
assumes the responsibilities set forth in Section 19 with regard to maintaining
insurance.
Lessor and Lessee hereby waive any rights each may have against the other
related to any loss or damage caused to Lessor or Lessee as the case may be, or
to the Premises or its contents, and which may arise from any risk generally
covered by fire and extended coverage insurance. Lessee shall provide that the
insurance policies insuring the property or the personal property include a
waiver of any right of subrogation which said insurance company may have against
Lessor or Lessee, as the case may be. Lessee shall maintain in full
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force and effect, a policy of rental loss insurance, in an amount equal to the
amount of Rent payable by Lessee commencing on the date of loss during the next
ensuing one (1) year, as reasonably determined by Lessor with proceeds payable
to Lessor ("Loss of Rents Insurance"). Lessee shall pay for the full cost of the
Loss of Rents Insurance. The proceeds payable to Lessor from the Loss of Rents
Insurance coverage shall not be less than $1,020,000 per year payable monthly.
7. ABANDONMENT: Lessee shall not vacate or abandon the Premises at any time
during the Lease Term; and if Lessee shall abandon, vacate or surrender said
Premises, or be dispossessed by process of law, or otherwise, any personal
property belonging to Lessee and left on the Premises shall be deemed to be
abandoned, at the option of Lessor. Notwithstanding the above, the Premises
shall not be considered vacated or abandoned if Lessee maintains the Premises in
Good Condition and Repair, provides security and is not in default.
8. FREE FROM LIENS: Lessee shall keep the subject Premises and the property in
which the subject Premises are situated, free from any and all liens including
but not limited to liens arising out of any work performed, materials furnished,
or obligations incurred by Lessee. However, the Lessor shall allow Lessee to
contest a lien claim, so long as the claim is discharged prior to any
foreclosure proceeding being initiated against the property and provided Lessee
provides Lessor a bond if the lien exceeds $5,000.
9. COMPLIANCE WITH GOVERNMENTAL REGULATIONS: Lessee shall, at its sole cost and
expense, comply with all of the requirements of all local, municipal, state and
federal authorities now in force, or which may hereafter be in force, pertaining
to the Premises, and shall faithfully observe in the use of the Premises all
local and municipal ordinances and state and federal statutes now in force or
which may hereafter be in force. Except as stated above, Lessee shall not be
required to pay for the construction of any single improvement required under
this Section in excess of $25,000, unless such improvement (i) is required to
comply with Lessee's particular use of the Premises, (ii) is required as a
result of Lessee or Lessee's Agents application for modifications to the
Premises or (iii) is required as a result of actual modifications to the
Premises made by Lessee or Lessee's Agents; if such improvement is not required
due to Lessee's particular use of the Premises or is not required as a result of
Lessee or Lessee's Agents application for modifications to the Premises or
actual modifications to the Premises by Lessee or Lessee's Agents and such
improvement cost exceeds $25,000, such improvement cost shall be amortized over
the estimated useful life of the improvement, not to exceed 15 years at Xxxxx
Fargo prime rate plus one percent (1%). Lessee shall pay to Lessor the amortized
costs of such improvement on a monthly basis over the Lease Term.
10. LESSEE'S INSURANCE: Lessee, as a material part of the consideration to be
rendered to Lessor, hereby waives all claims against Lessor and Lessor's Agents
for damages to goods, wares and merchandise, and all other personal property in,
upon or about said Premises, and for injuries to persons in, upon or about said
Premises, from any cause arising at any time, and Lessee will hold Lessor and
Lessor's Agents exempt and harmless from any damage or injury to any person, or
to the goods, wares and merchandise and all other personal property of any
person, arising from the use or occupancy of the Premises by Lessee, or from the
failure of Lessee to keep the Premises in good condition and repair, as herein
provided. Lessee shall secure and keep in force a standard policy of commercial
general liability insurance and property damage policy covering the Premises,
including parking areas, insuring the Lessee. A certificate of said policy
naming Lessor as an additional insured shall be delivered to Lessor and will
have a combined single limit for both bodily injury, death and property damage
in an amount not less than two million dollars ($2,000,000) and shall self
insure for a minimum of three million dollars ($3,000,000). The limits of said
insurance shall not, however, limit the liability of Lessee hereunder. The
certificate of Lessee's insurance shall require the insurer to notify Lessor 30
days in advance in writing before any cancellation thereof. Lessee shall obtain,
at Lessee's sole cost and expense, a policy of fire and extended coverage
insurance including coverage for direct physical loss special form, and a
sprinkler leakage endorsement insuring the personal property of Lessee. The
proceeds from any personal property damage policy shall be payable to Lessee.
Lessee shall, at its sole cost and expense, comply with all of the insurance
requirements of all local, municipal, state and federal authorities now in
force, or which may hereafter be in force, pertaining to Lessee's use and
occupancy of the said Premises.
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10.1 LESSEE'S SELF-INSURANCE: Notwithstanding the insurance provisions of this
Lease to the contrary, Lessee shall have the right to self-insure with respect
to any of the insurance required under this Lease and Lessor agrees to waive the
above liability insurance requirements provided (i) Lessee is a publicly traded
U.S. Corporation whose stock is traded on a nationally recognized exchange, (ii)
Lessee has not assigned this Lease, (iii) Lessee maintains a minimum net worth
of at least one hundred million dollars ($100,000,000) according to its most
recent audited financial statements, (iv) Lessee governs and manages its
self-insurance program in a manner consistent with programs managed by prudent
businesses whose stock is publicly traded on nationally recognized exchanges;
and (v) applicable law(s) do not prohibit or render unenforceable
indemnification of Lessor for Lessor's own negligence. Upon request, Lessee
shall supply to Lessor from time to time with evidence reasonably satisfactory
to Lessor of Lessee's net worth and the satisfaction of the conditions set forth
above. If Lessee elects to self-insure, Lessee shall be responsible for losses
or liabilities which would have been assumed by insurance companies which would
have issued the insurance required by Lessee under this Lease in conformance
with Lessor's Insurance Standards plus any deductibles and Lessee shall accept
Lessor's tender of defense for any claims within the scope of Lessee's indemnity
obligations as if Lessor and Lessor's lender, if any, were named as additional
insureds on any liability policy maintained by Lessee meeting Lessor's Insurance
Standards. Lessee will notify Lessor in advance of any period for which Lessee
intends to self-insure and shall provide Lessor with satisfactory evidence that
it complies with the requirements set forth herein in order to give Lessor an
opportunity to confirm the satisfaction of the conditions set forth herein. For
so long as Lessee self-insures, Lessee, for applicable periods, shall and does
hereby indemnify and hold harmless Lessor, its partners, agents, employees and
representatives for and against all costs, damages, or expenses (including
reasonable attorneys' fees) incurred or paid by Lessor as a result of any claim
customarily covered by a broad-form policy of commercial general liability
insurance and property damage provided by such policy(ies) meet Lessor's
Insurance Standards as defined in Section 6, including a contractual liability
endorsement.
11. ADVERTISEMENTS AND SIGNS: Lessee shall not place or permit to be placed, in,
upon or about the Premises any unusual or extraordinary signs, or any signs not
approved by the city, local, state, federal or other applicable governing
authority. Lessee shall not place, or permit to be placed upon the Premises, any
signs, advertisements or notices without the written consent of the Lessor, and
such consent shall not be unreasonably withheld. A sign so placed on the
Premises shall be so placed upon the understanding and agreement that Lessee
will remove same at the end of the Lease Term or earlier termination of this
Lease and repair any damage or injury to the Premises caused thereby, and if not
so removed by Lessee, then Lessor may have the same removed at Lessee's expense.
12. UTILITIES: Lessee shall pay for all water, gas, heat, light, power,
telephone and other utilities supplied to the Premises. Any charges for sewer
usage, PG&E, and telephone service to the Premises or related fees shall be the
obligation of Lessee and paid for by Lessee. If any such services are not
separately metered to Lessee, Lessee shall pay a reasonable proportion of all
charges which are jointly metered, the determination to be made by Lessor acting
reasonably and on any equitable basis. Lessee and Lessor agree that Lessor shall
not be liable to Lessee for any disruption in any of the utility services to the
Premises.
13. ATTORNEY'S FEES: In case suit should be brought for the possession of the
Premises, for the recovery of any sum due hereunder, because of the breach of
any other covenant herein, or to enforce, protect, or establish any term,
conditions, or covenant of this Lease or the right of either party hereunder,
the losing party shall pay to the Prevailing Party reasonable attorney's fee
which shall be deemed to have accrued on the commencement of such action and
shall be enforceable whether or not such action is prosecuted to judgment. The
term "Prevailing Party" shall mean the party that received substantial relief
requested, whether by settlement, dismissal, summary judgment, judgment, or
otherwise.
14.1 DEFAULT: The occurrence of any of the following shall constitute a default
and breach of this Lease by Lessee: a) Any failure by Lessee to pay Rent or to
make any other payment required to be made by Lessee hereunder when due if not
cured within ten (10) days after written notice thereof by Lessor to Lessee; b)
The abandonment or vacation of the Premises by Lessee except as provided in
Section 7; c) A failure by Lessee to observe and perform any other provision of
this Lease to be observed or performed by Lessee, where such failure continues
for thirty days after written notice thereof by Lessor to Lessee; provided,
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however, that if the nature of such default is such that the same cannot be
reasonably cured within such thirty (30) day period, Lessee shall not be deemed
to be in default if Lessee shall, within such period, commence such cure and
thereafter diligently prosecute the same to completion; d) The making by Lessee
of any general assignment for the benefit of creditors; the filing by or against
Lessee of a petition to have Lessee adjudged a bankrupt or of a petition for
reorganization or arrangement under any law relating to bankruptcy; e) the
appointment of a trustee or receiver to take possession of substantially all of
Lessee's assets or Lessee's interest in this Lease, or the attachment, execution
or other judicial seizure of substantially all of Lessee's assets located at the
Premises or of Lessee's interest in this Lease.
14.2 SURRENDER OF LEASE: In the event of any such default by Lessee, then in
addition to any other remedies available to Lessor at law or in equity, Lessor
shall have the immediate option to terminate this Lease before the end of the
Lease Term and all rights of Lessee hereunder, by giving written notice of such
intention to terminate. In the event that Lessor terminates this Lease due to a
default of Lessee, then Lessor may recover from Lessee: 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 unpaid Rent which would
have been earned after termination until the time of award exceeding the amount
of such rental loss that the Lessee proves 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 Lease Term after the time of award exceeds the amount of
such rental loss that the Lessee proves could have been reasonably avoided; plus
d) any other amount necessary to compensate Lessor for all the detriment
proximately caused by Lessee's failure to perform his obligations under this
Lease or which in the ordinary course of things would be likely to result
therefrom; and e) at Lessor's election, such other amounts in addition to or in
lieu of the foregoing as may be permitted from time to time by applicable
California law. As used in (a) and (b) above, the "worth at the time of award"
is computed by allowing interest at the rate of Xxxxx Fargo's prime rate plus
two percent (2%) per annum. As used in (c) above, the "worth at the time of
award" 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%).
14.3 RIGHT OF ENTRY AND REMOVAL: In the event of any such default by Lessee,
Lessor shall also have the right, with or without terminating this Lease, to
re-enter the Premises and remove all persons and property from the Premises;
such property may be removed and stored in a public warehouse or elsewhere at
the cost of and for the account of Lessee.
14.4 ABANDONMENT: In the event of the vacation or abandonment, except as
provided in Section 7, of the Premises by Lessee or in the event that Lessor
shall elect to re-enter as provided in paragraph 14.3 above or shall take
possession of the Premises pursuant to legal proceeding or pursuant to any
notice provided by law, and Lessor does not elect to terminate this Lease as
provided in paragraph 14.2 above, then Lessor may from time to time, without
terminating this Lease, either recover all Rent as it becomes due or relet the
Premises or any part thereof for such term or terms and at such rental rates and
upon such other terms and conditions as Lessor, in its sole discretion, may deem
advisable with the right to make alterations and repairs to the Premises. In the
event that Lessor elects to relet the Premises, then Rent received by Lessor
from such reletting shall be applied; first, to the payment of any indebtedness
other than Rent due hereunder from Lessee to Lessor; second, to the payment of
any cost of such reletting; third, to the payment of the cost of any alterations
and repairs to the Premises; fourth, to the payment of Rent due and unpaid
hereunder; and the residue, if any, shall be held by Lessor and applied to the
payment of future Rent as the same may become due and payable hereunder. Should
that portion of such Rent received from such reletting during any month, which
is applied by the payment of Rent hereunder according to the application
procedure outlined above, be less than the Rent payable during that month by
Lessee hereunder, then Lessee shall pay such deficiency to Lessor immediately
upon demand therefor by Lessor. Such deficiency shall be calculated and paid
monthly. Lessee shall also pay to Lessor, as soon as ascertained, any costs and
expenses incurred by Lessor in such reletting or in making such alterations and
repairs not covered by the rentals received from such reletting.
14.5 NO IMPLIED TERMINATION: No re-entry or taking possession of the Premises by
Lessor pursuant to 14.3 or 14.4 of this Article 14 shall be construed as an
election to terminate this Lease unless a written notice of such intention is
given to Lessee or unless the termination thereof is decreed by a court of
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competent jurisdiction. Notwithstanding any reletting without termination by
Lessor because of any default by Lessee, Lessor may at any time after such
reletting elect to terminate this Lease for any such default.
15. SURRENDER OF LEASE: The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, shall not work a merger, and shall, at
the option of Lessor, terminate all or any existing subleases or sub tenancies,
or may, at the option of Lessor, operate as an assignment to him of any or all
such subleases or subtenancies.
16. TAXES: Lessee shall pay and discharge punctually and when the same shall
become due and payable without penalty, all real estate taxes, personal property
taxes, taxes based on vehicles utilizing parking areas in the Premises, taxes
computed or based on rental income (other than federal, state and municipal net
income taxes), environmental surcharges, privilege taxes, excise taxes, business
and occupation taxes, school fees or surcharges, gross receipts taxes, sales
and/or use taxes, employee taxes, occupational license taxes, water and sewer
taxes, assessments (including, but not limited to, assessments for public
improvements or benefit), assessments for local improvement and maintenance
districts, and all other governmental impositions and charges of every kind and
nature whatsoever, regardless of whether now customary or within the
contemplation of the parties hereto and regardless of whether resulting from
increased rate and/or valuation, or whether extraordinary or ordinary, general
or special, unforeseen or foreseen, or similar or dissimilar to any of the
foregoing (all of the foregoing being hereinafter collectively called "Tax" or
"Taxes") which, at any time during the Lease Term, shall be applicable or
against the Premises, or shall become due and payable and a lien or charge upon
the Premises under or by virtue of any present or future laws, statutes,
ordinances, regulations, or other requirements of any governmental authority
whatsoever. The term "Environmental Surcharge" shall include any and all
expenses, taxes, charges or penalties imposed by the Federal Department of
Energy, Federal Environmental Protection Agency, the Federal Clean Air Act, or
any regulations promulgated thereunder, or any other local, state or federal
governmental agency or entity now or hereafter vested with the power to impose
taxes, assessments or other types of surcharges as a means of controlling or
abating environmental pollution or the use of energy (i) generally imposed on
similar properties in a wide geographic area without regard to whether the
properties subject to the tax are contaminated by Hazardous Materials and which
is part of a comprehensive plan imposed by a governmental unit or (ii) imposed
with respect to the Premises as the result of the presence of Hazardous
Materials for which Lessee is required to indemnify Lessor under Section 33
below or to undertake remediation pursuant to Section 33.5 below. The term "Tax"
shall include, without limitation, all taxes, assessments, levies, fees,
impositions or charges levied, imposed, assessed, measured, or based in any
manner whatsoever (i) in whole or in part on the Rent payable by Lessee under
this Lease, (ii) upon or with respect to the use, possession, occupancy,
leasing, operation or management of the Premises, (iii) upon this transaction or
any document to which Lessee is a party creating or transferring an interest or
an estate in the Premises, (iv) upon Lessee's business operations conducted at
the Premises, (v) upon, measured by or reasonably attributable to the cost or
value of Lessee's equipment, furniture, fixtures and other personal property
located on the Premises or the cost or value of any leasehold improvements made
in or to the Premises by or for Lessee, regardless of whether title to such
improvements shall be in Lessor or Lessee, or (vi) in lieu of or equivalent to
any Tax set forth in this Section 16. In the event any such Taxes are payable by
Lessor and it shall not be lawful for Lessee to reimburse Lessor for such Taxes,
then the Rent payable thereunder shall be increased to net Lessor the same net
rent after imposition of any such Tax upon Lessor as would have been payable to
Lessor prior to the imposition of any such Tax. It is the intention of the
parties that Lessor shall be free from all such Taxes and all other governmental
impositions and charges of every kind and nature whatsoever. However, nothing
contained in this Section 16 shall require Lessee to pay any Federal or State
income, franchise, estate, inheritance, succession, transfer or excess profits
tax imposed upon Lessor. If any general or special assessment is levied and
assessed against the Premises, Lessor agrees to use its best reasonable efforts
to cause the assessment to become a lien on the Premises securing repayment of a
bond sold to finance the improvements to which the assessment relates which is
payable in installments of principal and interest over the maximum term allowed
by law. It is understood and agreed that Lessee's obligation under this
paragraph will be prorated to reflect the Commencement Date and the end of the
Lease Term. It is further understood that if Taxes cover the Premises and Lessee
does not occupy the entire Premises, the Taxes will be allocated to the portion
of the Premises occupied by Lessee based on a pro-rata square footage or other
equitable basis. Notwithstanding the above, Lessee shall have no obligation for
taxes until
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due or any personal property taxes attributable to sculptures or other objects
of art installed by Lessor on the Premises or reserves for future taxes.
Subject to any limitations or restrictions imposed by any deeds of trust or
mortgages now or hereafter covering or affecting the Premises, Lessee shall have
the right to contest or review the amount or validity of any Tax by appropriate
legal proceedings but which is not to be deemed or construed in any way as
relieving, modifying or extending Lessee's covenant to pay such Tax at the time
and in the manner as provided in this Section 16. However, as a condition of
Lessee's right to contest, if such contested Tax is not paid before such contest
and if the legal proceedings shall not operate to prevent or stay the collection
of the Tax so contested, Lessee shall, before instituting any such proceeding,
protect the Premises and the interest of Lessor and of the beneficiary of a deed
of trust or the mortgagee of a mortgage affecting the Premises against any lien
upon the Premises by a surety bond, issued by an insurance company acceptable to
Lessor and in an amount equal to one and one-half (1 1/2) times the amount
contested or, at Lessor's option, the amount of the contested Tax and the
interest and penalties in connection therewith. Any contest as to the validity
or amount of any Tax, whether before or after payment, shall be made by Lessee
in Lessee's own name, or if required by law, in the name of Lessor or both
Lessor and Lessee. Lessee shall defend, indemnify and hold harmless Lessor from
and against any and all costs or expenses, including attorneys' fees, in
connection with any such proceedings brought by Lessee, whether in its own name
or not. Lessee shall be entitled to retain any refund of any such contested Tax
and penalties or interest thereon which have been paid by Lessee. Nothing
contained herein shall be construed as affecting or limiting Lessor's right to
contest any Tax at Lessor's expense. In the event Lessor receives the refund of
any such contested Taxes, Lessor shall refund such amount to Lessee within
thirty (30) days after such refund in received by Lessor during the Lease Term.
17. NOTICES: Unless otherwise provided for in this Lease, any and all written
notices or other communication (the "Communication") to be given in connection
with this Lease shall be given in writing and shall be given by certified mail,
"return receipt requested", fully prepaid, in a sealed envelope addressed to
the intended recipient as follows:
(a) to the Lessor at: 00000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxx
Fax No: (000) 000-0000
(b) to the Lessee at: Cisco Systems, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Vice President, Worldwide Real
Estate and Workplace Resources
and for xxxxxxxx and notices of nonpayment to:
U.S. Bills/Rents
P.O. Box 641570
MS Lease
Xxx Xxxx, Xxxxxxxxxx 00000
or such other addresses or individual as may be designated by a Communication
given by a party to the other parties as aforesaid. Any Communication given by
certified mail shall be conclusively deemed to have been made on the day on
which delivery is made or refused.
18. ENTRY BY LESSOR: Lessee shall permit Lessor and its agents to enter into and
upon said Premises at all reasonable times subject to 24 hours advance written
notice to Lessee, except in emergency situations in which case no notice
required, using the minimum amount of interference and inconvenience to Lessee
and Lessee's business, subject to any security regulations of Lessee, for the
purpose of inspecting the same or for
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the purpose of maintaining the building in which said Premises are situated, or
for the purpose of making repairs, alterations or additions to any other portion
of said building, including the erection and maintenance of such scaffolding,
canopies, fences and props as may be required, without any rebate of Rent and
without any liability to Lessee for any loss of occupation or quiet enjoyment of
the Premises; and shall permit Lessor and his agents, at any time within ninety
(90) days prior to the end of the Lease Term, to place upon said Premises any
usual or ordinary "For Sale" or "For Lease" signs and exhibit the Premises to
prospective tenants at reasonable hours. Notice for entry under this Section 18
can be made telephonically to Lessee's designated representative at the
Premises.
19. DESTRUCTION OF PREMISES: In the event of a partial or complete destruction
of the Premises during the Lease Term from any cause except earthquakes, Lessee
shall forthwith repair the same under the laws and regulations of State,
Federal, County, or Municipal authorities, except that Lessee shall be entitled
to a proportionate reduction of Rent while such repairs are being made to the
extent of payments received by Lessor under the Loss of Rents Insurance
coverage.
20. ASSIGNMENT AND SUBLETTING: Lessee shall not assign this Lease, or any
interest therein, and shall not sublet the said Premises or any part thereof, or
any right or privilege appurtenant thereto, or cause any other person or entity
(a bona fide subsidiary or affiliate of Lessee excepted) to occupy or use the
Premises, or any portion thereof, without the advance written consent of Lessor.
Whether or not Lessor's consent to a sublease or assignment is required, in the
event of any sublease or assignment, Lessee shall be and shall remain primarily
liable for the performance of all conditions, covenants, and obligations of
Lessee hereunder and, in the event of a default by an assignee or sublessee,
Lessor may proceed directly against the original Lessee hereunder and/or any
other predecessor of such assignee or sublessee without the necessity of
exhausting remedies against said assignee or sublessee.
21. CONDEMNATION: If any part of the Premises shall be taken for any public or
quasi-public use, under any statute or by right of eminent domain or private
purchase in lieu thereof, and a part thereof remains which is susceptible of
occupation hereunder, this Lease shall as to the part so taken, terminate as of
the date title vests in the condemnor or purchaser, and the Rent payable
hereunder shall be adjusted so that the Lessee shall be required to pay for the
remainder of the Lease Term only that portion of Rent as the value of the part
remaining, subject to Lessee's and Lessor's mutual agreement that as a result of
such taking, the remainder of the Premises is reasonably suitable for Lessee's
continued occupancy and use of the Premises. The rental adjustment resulting
will be computed at the same Rental rate for the remaining part not taken;
however, Lessor shall have the option to terminate this Lease as of the date
when title to the part so taken vests in the condemnor or purchaser. If all of
the Premises, or such part thereof be taken so that there does not remain a
portion susceptible for occupation hereunder, this Lease shall thereupon
terminate. If a part or all of the Premises be taken, all compensation awarded
upon such taking shall be payable to the Lessor. Lessee may file a separate
claim and be entitled to any award granted to Lessee.
22. EFFECTS OF CONVEYANCE: The term "Lessor" as used in this Lease, means only
the owner for the time being of the land and building constituting the Premises,
so that, in the event of any sale of said land or building, or in the event of a
Lease of said building, Lessor shall be and hereby is entirely freed and
relieved of all covenants and obligations of Lessor hereunder, and it shall be
deemed and construed, without further agreement between the parties and the
purchaser of any such sale, or the Lessor of the building, that the purchaser or
lessor of the building has assumed and agreed to carry out any and all covenants
and obligations of the Lessor hereunder. If any security is given by Lessee to
secure the faithful performance of all or any of the covenants of this Lease on
the part of Lessee, Lessor may transfer and deliver the security, as such, to
the purchaser at any such sale of the building, and thereupon the Lessor shall
be discharged from any further liability.
23. SUBORDINATION: This Lease, in the event Lessor notifies Lessee in writing,
shall be subordinate to any ground lease, deed of trust, or other hypothecation
for security now or hereafter placed upon the real property at which the
Premises are a part and to any and all advances made on the security thereof and
to renewals, modifications, replacements and extensions thereof. Lessee agrees
to promptly execute any documents which may be required to effectuate such
subordination provided as long as Lessee is not in
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default according to the terms and conditions of this Lease, such party
requesting subordination recognizes Lessee's rights under this Lease and
Lessee's right to possession of the Premises pursuant to the terms of this
Lease, and such subordination document does not materially restrict or limit
Lessee's rights or materially increase Lessee's obligations under this Lease.
Notwithstanding such subordination, if Lessee is not in default and so long as
Lessee shall pay the Rent and observe and perform all of the provisions and
covenants required under this Lease, Lessee's right to quiet possession of the
Premises shall not be disturbed or effected by any subordination.
24. WAIVER: The waiver by Lessor of any breach of any term, covenant or
condition, herein contained shall not be construed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition therein contained. The subsequent acceptance of Rent
hereunder by Lessor shall not be deemed to be a waiver of Lessee's breach of any
term, covenant, or condition of the Lease.
25. HOLDING OVER: Any holding over after the end of the Lease Term requires
Lessor's written approval prior to the end of the Lease Term, which,
notwithstanding any other provisions of this Lease, Lessor may withhold and
shall be construed to be a tenancy at sufferance from month to month. Lessee
shall pay to Lessor monthly base rent equal to one and one-half (1.5) times the
monthly base rent installment due in the last month of the Lease Term and all
other additional rent and all other terms and conditions of the Lease shall
apply, so far as applicable. Holding over by Lessee without written approval of
Lessor shall subject Lessee to the liabilities and obligations provided for in
this Lease and by law, including, but not limited to those in Section 2.1 of
this Lease. Lessee shall indemnify and hold Lessor harmless against any loss or
liability resulting from any delay caused by Lessee in surrendering the
Premises, including without limitation, any claims made or penalties incurred by
any succeeding lessee or by Lessor. No holding over shall be deemed or construed
to exercise any option to extend or renew this Lease in lieu of full and timely
exercise of any such option as required hereunder.
26. SUCCESSORS AND ASSIGNS: The covenants and conditions herein contained shall,
subject to the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of all of the parties hereto;
and all of the parties hereto shall be jointly and severally liable hereunder.
27. ESTOPPEL CERTIFICATES: Lessee shall at any time during the Lease Term, upon
not less than ten (10) days prior written notice from Lessor, execute and
deliver to Lessor a statement in writing certifying that, this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modification) and the dates to which the Rent and other charges have been
paid in advance, if any, and acknowledging that there are not, to Lessee's
knowledge, any uncured defaults on the part of Lessor hereunder or specifying
such defaults if they are claimed. Any such statement may be conclusively relied
upon by any prospective purchaser or encumbrancer of the Premises. Lessee's
failure to deliver such a statement within such time shall be conclusive upon
the Lessee that (a) this Lease is in full force and effect, without modification
except as may be represented by Lessor; (b) there are no uncured defaults in
Lessor's performance.
28. TIME: Time is of the essence of the Lease.
29. CAPTIONS: The headings on titles to the paragraphs of this Lease are not a
part of this Lease and shall have no effect upon the construction or
interpretation of any part thereof. This instrument contains all of the
agreements and conditions made between the parties hereto and may not be
modified orally or in any other manner than by an agreement in writing signed by
all of the parties hereto or their respective successors in interest.
30. PARTY NAMES: Landlord and Tenant may be used in various places in this Lease
as a substitute for Lessor and Lessee respectively.
31. EARTHQUAKE INSURANCE: As a condition of Lessor agreeing to waive the
requirement for earthquake insurance, Lessee agrees that it will pay, as
additional Rent, an amount not to exceed Twenty-Six Thousand
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Three Hundred Dollars ($26,300) per year for earthquake insurance if Lessor
desires to obtain some form of earthquake insurance in the future, if and when
available, on terms acceptable to Lessor.
32. HABITUAL DEFAULT: Notwithstanding anything to the contrary contained in
Section 14 herein, Lessor and Lessee agree that if Lessee shall have defaulted
in the payment of Rent for three or more times during any twelve month period
during the Lease Term, then such conduct shall, at the option of the Lessor,
represent a separate event of default which cannot be cured by Lessee. Lessee
acknowledges that the purpose of this provision is to prevent repetitive
defaults by the Lessee under the Lease, which constitute a hardship to the
Lessor and deprive the Lessor of the timely performance by the Lessee hereunder.
33. HAZARDOUS MATERIALS
33.1 DEFINITIONS: As used in this Lease, the following terms shall have the
following meaning:
a. The term "Hazardous Materials" shall mean (i) polychlorinated
biphenyls; (ii) radioactive materials and (iii) any chemical, material
or substance now or hereafter defined as or included in the definitions
of "hazardous substance" "hazardous water", "hazardous material",
"extremely hazardous waste", "restricted hazardous waste" under Section
25115, 25117 or 15122.7, or listed pursuant to Section 25140 of the
California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous
Waste Control Law), (ii) defined as "hazardous substance" under Section
25316 of the California Health and Safety Code, Division 20, Chapter
6.8 (Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous Substances Account Act), (iii)
defined as "hazardous material", "hazardous substance", or "hazardous
waste" under Section 25501 of the California Health and Safety Code,
Division 20, Chapter 6.95 (Hazardous Materials Release, Response, Plans
and Inventory), (iv) defined as a "hazardous substance" under Section
25181 of the California Health and Safety Code, Division 20l, Chapter
6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi)
asbestos, (vii) listed under Article 9 or defined as "hazardous" or
"extremely hazardous" pursuant to Article II of Title 22 of the
California Administrative Code, Division 4, Chapter 20, (viii) defined
as "hazardous substance" pursuant to Section 311 of the Federal Water
Pollution Control Act, 33 U.S.C. 1251 et seq. or listed pursuant to
Section 1004 of the Federal Water Pollution Control Act (33 U.S.C.
1317), (ix) defined as a "hazardous waste", pursuant to Section 1004 of
the Federal Resource Conservation and Recovery Act, 42 U.S.C. 6901 et
seq., (x) defined as "hazardous substance" pursuant to Section 101 of
the Comprehensive Environmental Responsibility Compensations, and
Liability Act, 42 U.S.C. 9601 et seq., or (xi) regulated under the
Toxic Substances Control Act, 156 U.S.C. 2601 et seq.
b. The term "Hazardous Materials Laws" shall mean any local, state and
federal laws, rules, regulations, or ordinances relating to the use,
generation, transportation, analysis, manufacture, installation,
release, discharge, storage or disposal of Hazardous Material.
c. The term "Lessor's Agents" as used herein shall mean Lessor's
agents, representatives, employees, contractors, subcontractors,
directors, officers and partners.
d. The term "Lessee's Agents" as used herein shall mean Lessee's
agents, representatives, employees, contractors, subcontractors,
directors, officers, partners, invitees or any other person in or about
the Premises.
33.2 LESSEE'S RIGHT TO INVESTIGATE: Lessee shall be entitled to cause such
inspection, soils and ground water tests, and other evaluations to be made of
the Premises as Lessee deems necessary regarding (i) the presence and use of
Hazardous Materials in or about the Premises, and (ii) the potential for
exposure to Lessee's employees and other persons to any Hazardous Materials used
and stored by previous occupants in or about the Premises. Lessee shall provide
Lessor with copies of all inspections, tests and evaluations. Lessee shall
indemnify, defend, and hold Lessor harmless from any cost, claim or expense
arising from such entry by Lessee or from the performance of any such
investigation by such Lessee. Within thirty (30) days of the Commencement Date,
Lessee shall provide Lessor with the results of its Hazardous Materials
investigations which shall be used to establish a base line level for Hazardous
Materials at the Premises.
33.3 LESSOR'S REPRESENTATIONS: Lessor hereby represents and warrants to the best
of Lessor's knowledge that the Premises are, as of the date of this Lease, in
compliance with all Hazardous Material Laws.
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33.4 LESSEE'S OBLIGATION TO INDEMNIFY: Lessee, at its sole cost and expense,
shall indemnify, defend, protect and hold Lessor and Lessor's Agents harmless
from and against any and all cost or expenses, including those described under
subparagraphs i, ii and iii herein below set forth, arising from or caused in
whole or in part, directly or indirectly by:
a. Lessee's or Lessee's Agents' use, analysis, storage, transportation,
disposal, release, threatened release, discharge or generation of
Hazardous Material to, in, on, under, about or from the Premises; or
b. Lessee's or Lessee's Agents failure to comply with Hazardous
Material laws; or
c. Any release of Hazardous Material to, in, on, under, about, from or
onto the Premises caused by Lessee or Lessee's Agents or occurring
during the Lease Term, except ground water contamination from other
parcels where the source is from off the Premises not arising from or
caused by Lessee or Lessee's Agents.
The cost and expenses indemnified against include, but are not limited to the
following:
i. Any and all claims, actions, suits, proceedings, losses, damages,
liabilities, deficiencies, forfeitures, penalties, fines, punitive
damages, cost or expenses;
ii. Any claim, action, suit or proceeding for personal injury
(including sickness, disease, or death), tangible or intangible
property damage, compensation for lost wages, business income, profits
or other economic loss, damage to the natural resources of the
environment, nuisance, pollution, contamination, leaks, spills, release
or other adverse effects on the environment;
iii. The cost of any repair, clean-up, treatment or detoxification of
the Premises necessary to bring the Premises into compliance with all
Hazardous Material Laws, including the preparation and implementation
of any closure, disposal, remedial action, or other actions with regard
to the Premises, and expenses (including, without limitation,
reasonable attorney's fees and consultants fees, investigation and
laboratory fees, court cost and litigation expenses).
33.5 LESSEE'S OBLIGATION TO REMEDIATE CONTAMINATION: Lessee shall, at its sole
cost and expense, promptly take any and all action necessary to remediate
contamination of the Premises by Hazardous Materials during the Lease Term
occurring as a result of acts or omissions of Lessee or Lessee's Agents, but
Lessee shall only be obligated to remediate to levels required now or in the
future by any governmental agency having jurisdiction over such contamination.
33.6 OBLIGATION TO NOTIFY: Lessor and Lessee shall each give written notice to
the other as soon as reasonably practical of (i) any communication received from
any governmental authority concerning Hazardous Material which related to the
Premises and (ii) any contamination of the Premises by Hazardous Materials which
constitutes a violation of any Hazardous Material Laws.
33.7 SURVIVAL: The obligations of Lessee under this Section 33 shall survive the
Lease Term or earlier termination of this Lease.
33.8 CERTIFICATION AND CLOSURE: On or before the end of the Lease Term or
earlier termination of this Lease, Lessee shall deliver to Lessor a
certification executed by Lessee stating that, to the best of Lessee's
knowledge, there exists no violation of Hazardous Material Laws resulting from
Lessee's obligation in Paragraph 33. If pursuant to local ordinance, state or
federal law, Lessee is required, at the expiration of the Lease Term, to submit
a closure plan for the Premises to a local, state or federal agency, then Lessee
shall furnish to Lessor a copy of such plan.
33.9 PRIOR HAZARDOUS MATERIALS: Lessee shall have no obligation to clean up or
to hold Lessor harmless with respect to, any Hazardous Material or wastes
discovered on the Premises which were not introduced into, in, on, about, from
or under the Premises during the Lease Term or ground water contamination from
other parcels where the source is from off the Premises not arising from or
caused by Lessee or Lessee's Agents.
34. BROKERS: Lessor and Lessee represent that they have not utilized or
contacted a real estate broker or finder with respect to this Lease other than
CPS ("CPS") and Lessee agrees to indemnify and hold Lessor harmless against any
claim, cost, liability or cause of action asserted by any broker or finder
claiming
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through Lessee other than CPS. Lessor shall at its sole cost and expense pay the
brokerage commission per Lessor's standard commission schedule to CPS in
connection with this transaction. Lessor represents and warrants that it has not
utilized or contacted a real estate broker or finder with respect to this Lease
other than CPS and Lessor agrees to indemnify and hold Lessee harmless against
any claim, cost, liability or cause of action asserted by any broker or finder
claiming through Lessor.
35. OPTION TO EXTEND: Lessor hereby grants to Lessee one (1) option to extend
the Lease Term, with the extended term to be for a period of one (1) year, on
the following terms and conditions:
(i) Lessee shall give Lessor written notice of its exercise of its
option to extend no earlier than twenty-four (24) calendar months, nor
later than six (6) calendar months before the Lease Term would end but
for said exercise. Time is of the essence.
(ii) Lessee may not extend the Lease Term pursuant to any option
granted by this section 35 if Lessee is in default as of the date of
the exercise of its option. If Lessee has committed a default by Lessee
as defined in Section 14 or 32 that has not been cured or waived by
Lessor in writing by the date that any extended term is to commence,
then Lessor may elect not to allow the Lease Term to be extended,
notwithstanding any notice given by Lessee of an exercise of this
option to extend.
(iii) All terms and conditions of this Lease shall apply during the
extended term, except that the base rent shall be $82,225.
(iv) Once Lessee delivers a notice of exercise of its options to extend
the Lease Term, Lessee may not withdraw such exercise and subject to
the provisions of this Section 35, such notice shall operate to extend
the Lease Term. Upon any extension of the Lease Term pursuant to this
Section 35, the term "Lease Term" as used in this Lease shall
thereafter include the then extended term.
(v) The option rights of Cisco Systems, Inc. granted under this Section
35 are granted for Cisco Systems, Inc.'s personal benefit and may not
be assigned or transferred by Cisco Systems, Inc. or exercised if Cisco
Systems, Inc. is not occupying the Premises at the time of exercise.
Notwithstanding the above, Lessor waives the above due to the limit of
one year on the option herein.
36. APPROVALS: Whenever in this Lease the Lessor's or Lessee's consent is
required, such consent shall not be unreasonably or arbitrarily withheld or
delayed. In the event that the Lessor or Lessee does not respond to a request
for any consents which may be required of it in this Lease within ten business
days of the request of such consent in writing by the Lessee or Lessor, such
consent shall be deemed to have been given by the Lessor or Lessee.
37. AUTHORITY: Each party executing this Lease represents and warrants that he
or she is duly authorized to execute and deliver the Lease. If executed on
behalf of a corporation, that the Lease is executed in accordance with the
by-laws of said corporation (or a partnership that the Lease is executed in
accordance with the partnership agreement of such partnership), that no other
party's approval or consent to such execution and delivery is required, and that
the Lease is binding upon said individual, corporation (or partnership) as the
case may be in accordance with its terms.
38. INDEMNIFICATION OF LESSOR: Except to the extent caused by the sole
negligence or willful misconduct of Lessor or Lessor's Agents, Lessee shall
defend, indemnify and hold Lessor harmless from and against any and all
obligations, losses, costs, expenses, claims, demands, attorney's fees,
investigation costs or liabilities on account of, or arising out of the use,
condition or occupancy of the Premises or any act or omission to act of Lessee
or Lessee's Agents or any occurrence in, upon, about or at the Premises,
including, without limitation, any of the foregoing provisions arising out of
the use, generation, manufacture, installation, release, discharge, storage, or
disposal of Hazardous Materials by Lessee or Lessee's Agents. It is understood
that Lessee is and shall be in control and possession of the Premises and that
Lessor shall in no event be responsible or liable for any injury or damage or
injury to any person whatsoever, happening on, in,
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15
about, or in connection with the Premises, or for any injury or damage to the
Premises or any part thereof. This Lease is entered into on the express
condition that Lessor shall not be liable for, or suffer loss by reason of
injury to person or property, from whatever cause, which in any way may be
connected with the use, condition or occupancy of the Premises or personal
property located herein. The provisions of this Lease permitting Lessor to enter
and inspect the Premises are for the purpose of enabling Lessor to become
informed as to whether Lessee is complying with the terms of this Lease and
Lessor shall be under no duty to enter, inspect or to perform any of Lessee's
covenants set forth in this Lease. Lessee shall further indemnify, defend and
hold harmless Lessor from and against any and all claims arising from any breach
or default in the performance of any obligation to Lessee's part to be performed
under the terms of this Lease. The provisions of Section 38 shall survive the
Lease Term or earlier termination of this Lease with respect to any damage,
injury or death occurring during the Lease Term.
39. LESSOR'S LIABILITY: If Lessee should recover a money judgment against Lessor
arising in connection with this Lease, the judgment shall be satisfied only out
of the Lessor's interest in the Premises and any proceeds from the sale or
refinance of the Premises and neither Lessor or any of its partners shall be
liable personally for any deficiency.
40. MISCELLANEOUS PROVISIONS: All rights and remedies hereunder are cumulative
and not alternative to the extent permitted by law and are in addition to all
other rights or remedies in law and in equity.
41. CHOICE OF LAW: This lease shall be construed and enforced in accordance with
the substantive laws of the State of California. The language of all parts of
this lease shall in all cases be construed as a whole according to its fair
meaning and not strictly for or against either Lessor or Lessee.
42. ENTIRE AGREEMENT: This Lease is the entire agreement between the parties,
and there are no agreements or representations between the parties except as
expressed herein. Except as otherwise provided for herein, no subsequent change
or addition to this Lease shall be binding unless in writing and signed by the
parties hereto.
IN WITNESS WHEREOF, Lessor and Lessee have executed these presents, the day and
year first above written.
LESSOR LESSEE
XXXX & XXXX ENTERPRISES, INC. CISCO SYSTEMS, INC.
By: /s/Xxxx X. Xxxx By: /s/Xxxxxx Xxxxxx for Xxxxx Bareilles
----------------------------- ---------------------------------------
signature of authorized signature of authorized
representative representative
Xxxx X. Xxxx Xxxxx Breilles
-------------------------------- ------------------------------------------
printed name printed name
G.P. Vice President, Worldwide Real Estate
-------------------------------- ------------------------------------------
title title & Workplace Resources
12/31/96 December 31, 1996
-------------------------------- ------------------------------------------
date date
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16
Exhibit A
Site Plan to be attached.
17
Exhibit A.1
Floor Plan to be attached.
