EXHIBIT 10.21
LEASE AGREEMENT
BETWEEN
XXX.XXX, INC.
as Landlord
and
OPTI, INC.
as Tenant
1. Subleased Premises. 1
2. Term. 2
3. Master Lease. 2
4. Voluntary Termination of Master Lease. 6
5. Insurance. 7
6. Brokerage. 7
7. Notices. 8
9. Successors And Assigns. 8
10. Entire Agreement. 9
11. Time of Essence. 9
12. Consent of Master Landlord. 9
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease Agreement" or "Lease") is dated as of the
Thirtieth day of November, 1999, by and between XXX.XXX, INC., a Delaware
corporation, (hereinafter called "Landlord") and OPTI, INC., a California
corporation (hereinafter called "Tenant").
A. Landlord is the tenant of that certain building commonly known as 3393
Octavius, Santa Clara, California (the "Building"), pursuant to that certain
Lease Agreement dated July 19, 1995, and as amended, between Landlord and
XXX.XXX (formerly known as First Virtual Corporation), as tenant, and Xxxx
Xxxxxxxxx, Trustee, or his Sucessor Trust UTA dated 7/20/77, of the Xxxx
Xxxxxxxxx Survivor's Trust (previously known as the "Xxxx Xxxxxxxxx Separate
Property Trust") and Xxxxxxx X. Xxxxx, Trustee, or his Successor Trustee UTA
7/20/77, the Xxxxxxx X. Xxxxx Separate Property Trust (Xxxxxxx X. Xxxxx Separate
Property Trust") (hereinafter called "Master Landlord"), as landlord, and
collectively amended by Amendment Xx. 0, Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0, and
Amendment No. 4. Said Lease Agreement, the redacted provisions of which are
attached hereto as Exhibit A, is hereinafter called the "Master Lease". All
capitalized terms not defined herein shall be as defined in the Master Lease.
B. The parties desire to set forth in this Lease the terms, conditions and
provisions based upon which Tenant shall lease the Subleased Premises
(hereinafter defined) from Landlord.
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. Subleased Premises.
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord the
following described premises:
That portion of the Second Floor (Suite 102) of the Building,
consisting of approximately Twelve Thousand square feet (hereinafter
called the "Subleased Premises"), together with the nonexclusive right
of ingress and egress to and from the Subleased Premises in and over
the Common Areas of the Complex.
Landlord and Tenant agree that the Subleased Premises for all purposes of
this Lease Agreement comprise a total of 12,000 rentable square feet.
2. Term.
The term of this Lease shall commence on December 1, 1999 and end on
December 31, 2000.
3. Master Lease.
(a) Tenant hereby acknowledges that it has read those provisions of
the Master Lease attached as Exhibit A hereto and understands same. This Lease
is and shall be at all times subject and subordinate to all of the terms,
conditions and provisions of the Master Lease. Without limiting the generality
of the foregoing, it is understood that any termination of the Master Lease
prior to the end of the term of this Lease shall terminate this Lease without
further liability of Landlord. It is further expressly understood that this
Lease grants Tenant no options, whether to extend the term of this Lease or
otherwise, regardless of whether Landlord has been granted such options under
the Master Lease.
(b) All of the terms and provisions of the Master Lease, except (i) as
provided in
4
subsections (d), (e) and (f) below or (ii) those set forth in any of the
provisions of the Master Lease which have been omitted from the redacted copy
of the Master Lease attached as Exhibit A hereto, are incorporated into and made
a part of this Lease, and the rights and obligations of the parties under the
Master Lease are hereby imposed upon the parties hereto with respect to the
Subleased Premises, Landlord being substituted for "Landlord" in the Master
Lease, and Tenant being substituted for "Tenant" in the Master Lease. It is
further understood that where reference is made in the Master Lease to the
"Premises," the same shall mean the Subleased Premises as defined herein; and
where reference is made to the "Lease," the same shall mean this Lease.
(c) Tenant hereby assumes and agrees to perform for Landlord's
benefit, during the term of this Lease, all of Landlord's obligations as the
tenant under the Master Lease with respect to the Subleased Premises, except as
otherwise provided in clause (ii) of Section 3(b) above. Tenant agrees to save,
defend and indemnify Landlord against and hold Landlord free and harmless from
all loss, liability, judgments, costs, damages, claims or demands, including
reasonable attorneys' fees arising out of Tenant's failure to comply with or
perform any of Tenant's obligations so assumed. Tenant shall not commit or
permit to be committed any act or omission which violates any term or condition
of the Master Lease.
(d) The following Sections of the Master Lease are not incorporated
into the Lease Agreement herein:
Lease Agreement: 2, 12, 19, 34, 41, 43, 44, 46 and 48.
Amendment NO. 1.
Amendment NO. 2 to Lease: l, 2, 3, 4, 5, 6, 7, 8, and 11
5
Amendment NO. 3 to Lease: 1, 2, 3, 4, 5 and 6.
Amendment to NO. 4 to Lease: 1, 2, 3, 4 are not incorporated
herein.
(e) The following Sections of the Master Lease are incorporated, but
modified as follows:
4A. Commencing on the December 1, 1999 and continuing throughout the
term of this Lease, Tenant shall pay rent Basic Rent to Landlord. Tenant shall
pay to Landlord monthly base rent in the amount of Twenty-Six Thousand Four
Hundred and No/One-Hundredths Dollars ($26,400.00), provided that Basic Rent
shall be increased effective as of the (a) May 1, 2000 to Twenty-Eight Thousand
Three Hundred Twenty and No/One Hundredths Dollars ($28,320).
4D; 7; 11; 12. Tenant shall pay to Landlord its proportionate share
of any Additional Rent paid by Landlord to Master Landlord ("Proportionate
Share"). Tenant's Proportionate Share of Additional Rent is Six Thousand No/One-
Hundredths Dollars ($6,000.00) per month.
4E. All Basic Rent and all other payments hereunder for Additional
Rent shall paid to the Landlord at 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx
00000.
4F. Upon execution of this Lease, Tenant shall deposit with Landlord
the Sum of Sixty Thousand Seven Hundred Twenty and No/One-Hundreths Dollars
($60,720.00) as the first and last months rent, plus the first's month
Additional Rent and the Sum of Twenty-Six Thousand Four Hundred and No/One-
Hundreths Dollars ($26,400.00) as a Security Deposit.
6. Tenant shall have the right to use 45 unreserved Parking
Spaces.
16. Tenant indemnity shall include Master Landlord as well as
Landlord.
28. In the event of any holdover by Tenant, with the consent of
Landlord, the monthly Basic Rent shall be Twenty-Eight Thousand Three Hundred
Twenty and No/One Hundredths Dollars ($28,320) and the Additional Rent of Six
Thousand and No/One Hundredths Dollars ($6,000.00) per month.
(f) The provisions of the Master Lease set forth in Exhibit A include
express covenants made by Master Landlord and describe Master Landlord's duties
in connection with the operation of the premises within which the Subleased
Premises are located. Notwithstanding Section 3(b) above, Landlord is not
obligated to perform Master Landlord's obligations or duties under the Master
Lease with respect to services, maintenance, construction, repair, restoration,
or compliance with law relating to any part or all of the Premises, the Building
and/or the Project. In addition, Landlord shall not be liable for Master
Landlord's breach of any provision of the Master Lease or for any
misrepresentation by Master Landlord. If Master Landlord fails to perform,
Tenant shall notify Landlord, and Landlord will promptly notify Master Landlord
and demand performance. If Master Landlord continues to fail to perform,
Landlord will cooperate with Tenant in seeking any recourse from Master Landlord
which may be reasonably needed to enforce the obligations of Master Landlord
insofar as such obligations may pertain to the Subleased Premises, and Landlord
will provide such cooperation at Landlord's expense, subject in all events to
each the following limitations: (i) the term "cooperation" shall not require
Landlord to make any economic payments or concessions to Master Landlord or
alter in any way Landlord's rights or obligations
as tenant under the Master Lease; (ii) "cooperation" shall not require Landlord
to initiate or prosecute any administrative or judicial action against Master
Landlord unless either (aa) Master Landlord's breach has caused or will cause
------
loss by Tenant of possession of the Subleased Premises or other circumstances
that substantially interfere or will likely substantially interfere with
Tenant's ability to carry on its business operations in the Subleased Premises,
or (bb) Tenant pays all costs and expenses actually incurred by Landlord in
--
initiating and prosecuting such action, including without limitation all
attorney's fees and expenses, which costs and expenses shall be reimbursed by
Tenant within twenty (20) days after Landlord's invoice therefor.
(g) So long as Tenant performs and complies with its obligations
hereunder, Landlord will perform and comply with those of its obligations as
tenant under the Master Lease which Tenant has not agreed to perform hereunder.
Landlord agrees to defend and indemnify Tenant against and hold Tenant free and
harmless of and from all loss, liability, judgments, costs, damages, claims, or
demands, including reasonable attorneys fees, arising out of Landlord's breach
of its obligations as set forth in the preceding sentence.
* 4. Voluntary Termination of Master Lease.
If the Master Landlord and Tenant jointly and voluntarily elect, for any
reason whatsoever, to terminate the Master Lease prior to the scheduled Master
Lease termination date, then this Sublease (if then still in effect) shall
terminate concurrently with the termination of the Master Lease. Subtenant
expressly acknowledges and agrees that (1) the voluntary termination of the
Master Lease by Landlord and Tenant and the resulting termination of this
Sublease shall not give Subtenant any right or power to make any legal or
equitable claim against Landlord, including without limitation any claim for
interference with contract or
8
interference with prospective economic advantage, and (2) Subtenant hereby
waives any and all rights it may have under law or at equity against Landlord to
challenge such an early termination of the Sublease, and unconditionally
releases and relieves Landlord, and its officers, directors, employees and
agents, from any and all claims, demands, and/or causes of action whatsoever
(collectively, "Claims"), whether such matters are known or unknown, latent or
apparent, suspected or unsuspected, foreseeable or unforeseeable, which
Subtenant may have arising out of or in connection with any such early
termination of this Sublease. Subtenant knowingly and intentionally waives any
and all protection which is or may be given by Section 1542 of the California
Civil Code which provides as follows: "A general release does not extend to
claims which the creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him must have materially
affected his settlement with debtor.
The term of this Sublease is therefore subject to early termination.
Subtenant's initials here below evidence (a) Subtenant's consideration of and
agreement to this early termination provision, (b) Subtenant's acknowledgement
that, in determining the net benefits to be derived by Subtenant under the terms
of this Sublease, Subtenant has anticipated the potential for early termination,
and (c) Subtenant's agreement to the general waiver and release of Claims above.
Initials: illegible^^ Initials: illegible^^
----------- -------------
Subtenant Tenant
5. Insurance.
(a) During the term of this Lease, Tenant shall maintain the insurance
specified in Article 13 and 14 of the Master Lease, and the Commercial General
Liability insurance therein provided
9
shall name Landlord and Master Landlord as additional insureds.
(b) A certificate of each policy to be maintained by Tenant shall be
deposited with Landlord at the commencement of the term of this Lease and, on
renewal of the policy, not less than twenty (20) days before expiration of the
term of the policy.
6. Brokerage.
Each party warrants and represents to the other that such party has not
retained the services of any real estate broker, finder or any other person
whose services would form the basis for any claim for any commission or fee in
connection with this Lease or the transactions contemplated hereby. Each party
agrees to save, defend, indemnify and hold the other party free and harmless
from any breach of its warranty and representation as set forth in the preceding
sentence, including the other party's attorneys fees.
7. Notices.
All notices, approvals, consents, and other communications ("Notices")
to be given under this Lease must be in writing and may be given by any method
of delivery which provides evidence or confirmation of receipt including but not
limited to personal delivery, express courier (such as Federal Express), and
prepaid certified or registered mail with return receipt requested, but
excluding telecopy. Notices shall be deemed to have been given and received on
the earlier of actual receipt, refusal to accept delivery, or three (3) business
days after the day of deposit into prepaid registered or certified U.S. mail.
10
Notices shall be given and/or addressed to the respective parties at the
following addresses:
If to Landlord: Xx. Xxxxxx Xxxx
XXX.XXX, INC.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
If to Tenant: OPTI, INC.
Xx. Xxxx Xxxxxxx
0000 Xxxxxxxx Xxxxx,
Xxxxx Xxxxx, XX 00000 Suite #102
Either party may change the address of such party set forth above by
giving notice of such change to such other party in conformance with the
provisions of this Section 7.
8. Assignment and Subletting.
Tenant may assign or sublet the Premises so long as any assignment or
transfer is approved by the Master Landlord.
9. Successors And Assigns.
Subject in all events to Section 8, above, the provisions of this
Lease shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
10. Entire Agreement.
This Lease constitutes the final expression, and the complete and
exclusive statement of the terms, of the agreement between the parties
pertaining to the subject matter contained herein and supersede all prior and
contemporaneous agreements, representations and understandings of the parties.
11. Time of Essence.
It is expressly understood and agreed that time is of the essence of
each and every provision of this Lease.
12. Consent of Master Landlord.
(a) If Tenant desires to take any action which requires the consent of
Master Landlord pursuant to the terms of the Master Lease, including, without
limitation, the making of any alterations, then notwithstanding anything to the
contrary herein, (a) Landlord, independently, shall have the same rights of
approval or disapproval as Master Landlord has under the Master Lease, (b)
Tenant shall not take any such action until it obtains the consent of both
Landlord and Master Landlord, and (c) Tenant shall request that Landlord obtain
Master Landlord's consent on Tenant's behalf, unless Landlord agrees that Tenant
may contact Master Landlord directly with respect to the specific action for
which Master Landlord's consent is required. Any consent required of Landlord
conclusively shall be deemed reasonably withheld, if consent also is required of
the Master Landlord, and Master Landlord withholds its consent.
(b) This Lease is subject to the consent of Master Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease effective
as of the date first hereinabove written.
LANDLORD: XXX.XXX, INC.
a Delaware Corporation
By /s/ Xxxxxx Xxxx
---------------
10
Xxxxxx Xxxx
Title: Chief Financial Officer
TENANT:
OPTI, INC.
a California Corporation
By /s/ Xxxxxxx Xxxxxxx
-------------------
Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
EXHIBIT A
Master Lease
LEASE AGREEMENT
THIS LEASE, made this 19th day of July, 1996 between XXXX XXXXXXXXX,
---- ---- ---------------
Trustee, or his Successor Trustee, UTA dated 7/20/77 (XXXX XXXXXXXXX SEPARATE
-------------------------
PROPERTY TRUST) as amended, and XXXXXXX X. XXXXX, Trustee, or his Successor
----------------
Trustee,UTA dated 7/20/77 (XXXXXXX X. XXXXX SEPARATE PROPERTY TRUST) as amended,
--------------------------------------------------------------------
hereinafter called Landlord, and FIRST VIRTUAL CORPORATION, a California
---------------------------------------
corporation, hereinafter called Tenant.
-----------
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby hires and takes from
Landlord those certain premises (the "Premises") outlined in red on Exhibit "A",
attached hereto and incorporated herein by this reference thereto more
particularly described as follows:
A portion of that certain 48,000+ or - square foot, two-story building
located at 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx
00000, consisting of approximately 12,690+ or - square feet of space
on the second floor. Said Premises is more particularly shown within
the area outlined in Red on Exhibit A. The entire parcel, of which the
---------
Premises is a part, is shown within the area outlined in Green on
Exhibit A attached hereto. The Premises is leased on an "as-is" basis,
---------
in its present condition, and in the configuration as shown in Red on
Exhibit B attached hereto.
---------
As used herein the Complex shall mean and include all of the land outlined in
Green and described in Exhibit "A", attached hereto, and all of the buildings,
improvements, fixtures and equipment now or hereafter situated on said land.
Said letting and hiring is upon and subject to the terms, covenants and
conditions hereinafter set forth and Tenant covenants as a material part of the
consideration for this Lease to perform and observe each and all of said terms,
covenants and conditions. This Lease is made upon the conditions of such
performance and observance.
1. USE Tenant shall use the Premises only in conformance with applicable
governmental laws, regulations, rules and ordinances for the purpose of
general office, light manufacturing, research and development, and storage and
------------------------------------------------------------------------------
other uses necessary for Tenant to conduct Tenant's business, provided that such
--------------------------------------------------------------------------------
uses shall be in accordance with all applicable governmental laws and
---------------------------------------------------------------------
ordinances and for no other purpose. Tenant shall not do or permit to be done in
----------
or about the Premises or the Complex nor bring or keep or permit to be brought
or kept in or about the Premises or the Complex anything which is prohibited by
or will in any way increase the existing rate or (or otherwise affect) fire or
any insurance covering the Complex or any part thereof, or any of its contents,
or will cause a cancellation of any insurance covering the Complex or any part
thereof, or any of its contents. Tenant shall not do or permit to be done
anything in, on or about the Premises or the Complex which will in any way
obstruct or interfere with the rights of other tenants or occupants of the
Complex or injure or annoy them, or use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises or the Complex. No
sale by auction shall be permitted on the Premises. Tenant shall not place any
loads upon the floors, walls, or ceiling, which endanger the structure, or place
any harmful fluids or other materials in the drainage system of the building, or
overload existing electrical or other mechanical systems. No waste materials or
refuse shall be dumped upon or permitted to remain upon any part of the Premises
or outside of the building in which the Premises are a part, except in trash
containers placed inside exterior enclosures designated by Landlord for that
purpose or inside of the building proper where designated by Landlord. 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
outside the Premises or on any portion of common area of the Complex. No
loudspeaker or other device, system or apparatus which can be heard outside the
Premises shall be used in or at the Premises without the prior written consent
of Landlord. Tenant shall not commit or suffer to be committed any waste in or
upon the Premises. Tenant shall indemnify, defend and hold Landlord harmless
against any loss, expense, damage, attorneys' fees, or liability arising out of
failure of Tenant to comply with any applicable law. Tenant shall comply with
any covenant, condition, or restriction ("CC&R's") affecting the Premises. The
provisions of this paragraph are for the benefit of Landlord only and shall not
be construed to be for the benefit of any tenant or occupant of the Complex.
2. TERM
A. The term of this Lease shall be for a period of THREE (3) years
----- ---
SEVENTEEN (17) days (unless sooner terminated as hereinafter provided) and,
subject to Paragraphs 2(B) and 3, shall commence on the 15th day of August,
---- ------
1995 and end the 31st day August, of 1998.
---- ---- ------ --
B. Possession of the Premises shall be deemed tendered and the term of this
Lease shall commence when the first of the following occurs:
(a) One day after a Certificate of Occupancy is granted by the proper
governmental agency, or, if the governmental agency having jurisdiction over the
area in which the Premises are situated does not issue certificates of
occupancy, then the same number of days after certification by Landlord's
architect or contractor that Landlord's construction work has been completed; or
(b) Upon the occupancy of the Premises by any of Tenant's operating personnel;
or
(c) When the Tenant Improvements have been substantially completed for
------------------------------------------------------------------
Tenant's use and occupancy, in accordance and compliance with Exhibit B of this
-------------------------------------------------------------------------------
Lease Agreement; or
-------------------
(d) As otherwise agreed in writing.
3. POSSESSION If Landlord, for any reason whatsoever, cannot deliver possession
of said premises to Tenant at the commencement of the said term, as hereinbefore
specified, this Lease shall not be void or voidable; no obligation of Tenant
shall be affected thereby; nor shall Landlord or Landlord's agents be liable to
Tenant for any loss or damage resulting therefrom; but in that event the
commencement and termination dates of the Lease, and all other dates affected
thereby shall be revised to conform to the date of Landlord's delivery of
possession, as specified in Paragraph 2(b), above. The above is, however,
subject to the provision that the period of delay, of delivery of the premises
shall not exceed 30 days from the commencement date herein (except those delays
--
caused by Acts of God, strikes, war, utilities, governmental bodies, weather,
unavailable materials, and delays beyond Landlord's control shall be excluded in
calculating such period) in which instance Tenant, at his option, may, by
written notice to Landlord, terminate this Lease.
* It is agreed in the event said Lease commences on a date other than the first
day of the month the term of the Lease will be extended to account for the
number of days in the partial month. The Basic Rent during the resulting partial
month will be pro-rated (for the number of days in the partial month) at the
Basic Rent scheduled for the projected commencement date as shown in Paragraph
43.
page 1 of 8
4. RENT
A. Basic Rent. Tenant agrees to pay to Landlord at such place as Landlord may
designate without deduction, offset, prior notice, or demand, and Landlord
agrees to accept as Basic Rent for the leased Premises the total sum of FOUR
-----
HUNDRED EIGHTY SIX THOUSAND SIX HUNDRED FORTY ONE AND 03/100-----------
------------------------------------------------------------------------
($486,641.03-----------------------) Dollars in lawful money of the United
---------------------------------
States of America, payable as follows:
See Paragraph 43 for Basic Rent Schedule
B. Time for Payment. In the event that the term of this Lease commences on a
date other than the first day of a calendar month, on the date of commencement
of the term hereof Tenant shall pay to Landlord as rent for the period from such
date of commencement to the first day of the next succeeding calendar month that
proportion of the monthly rent hereunder which the number of days between such
date of commencement and the first day of the next succeeding calendar month
bears to thirty (30). In the event that the term of this Lease for any reason
ends on a date other than the last day of a calendar month, on the first day of
the last calendar month of the term hereof Tenant shall pay to Landlord as rent
for the period from said first day of said last calendar month to and including
the last day of the term hereof that proportion of the monthly rent hereunder
which the number of days between said first day of said last calendar month and
the last day of the term hereof bears to thirty (30).
C. Late Charge. Notwithstanding any other provision of this Lease, if Tenant is
in default in the payment of rental as set forth in this Paragraph 4 when due,
or any part thereof, Tenant agrees to pay Landlord, in addition to the
delinquent rental due, a late charge for each rental payment in default ten (10)
days. Said late charge shall equal ten (10%) percent of each rental payment so
in default.
D. Additional Rent. Beginning with the commencement date of the term of this
Lease, Tenant shall pay to Landlord in addition to the Basic Rent and as
Additional Rent the following:
(a) Tenant's proportionate share of all Taxes relating to the Complex as set
forth in Paragraph 12, and
(b) Tenant's proportionate share of all insurance premiums relating to the
Complex, as set forth in Paragraph 15, and
(c) Tenant's proportionate share of expenses for the operation, management,
maintenance and repair of the Building (including common areas of the
Building) and Common Areas of the Complex in which the Premises are
located as set forth in Paragraph 7, and
(d) All charges, costs and expenses, which Tenant is required to pay
hereunder, together with all interest and penalties, costs and expenses
including attorneys' fees and legal expenses, that may accrue thereto in
the event of Tenant's failure to pay such amounts, and all damages,
reasonable costs and expenses which Landlord may incur by reason of
default of Tenant or failure on Tenant's part to comply with the terms of
this Lease. In the event of nonpayment by Tenant of Additional Rent,
Landlord shall have all the rights and remedies with respect thereto as
Landlord has for nonpayment of rent.
The Additional Rent due hereunder shall be paid to Landlord or Landlord's agent
(I) within five days for taxes and insurance and within thirty (30) days for all
other Additional Rent items after presentation of invoice from Landlord or
Landlord's agent setting forth such Additional Rent and/or (ii) at the option of
Landlord. Tenant shall pay to Landlord monthly, in advance, Tenant's prorata
share of an amount estimated by Landlord to be Landlord's approximate average
monthly expenditure for such Additional Rent items, which estimated amount shall
be reconciled within 120 days of the end of each calendar year or more
frequently if Landlord so elects to do so at Landlord's sole and absolute
discretion, as compared to Landlord's actual expenditure for said Additional
Rent items, with Tenant paying to Landlord, upon demand, any amount of actual
expenses expended by Landlord in excess of said estimated amount, or Landlord
refunding to Tenant (providing Tenant is not in default in the performance of
any of the terms, covenants and conditions of this Lease) any amount of
estimated payments made by Tenant in excess of Landlord's actual expenditures
for said Additional Rent items.
The respective obligations of Landlord and Tenant under this paragraph shall
survive the expiration or other termination of the term of this Lease, and if
the term hereof shall expire or shall otherwise terminate on a day other than
the last day of a calendar year, the actual Additional Rent incurred for the
calendar year in which the term hereof expires or otherwise terminates shall be
determined and settled on the basis of the statement of actual Additional Rent
for such calendar year and shall be prorated in the proportion which the number
of days in such calendar year preceding such expiration of termination bears to
365.
E. Place of Payment of Rent and Additional Rent. All basic Rent hereunder and
all payments hereunder for Additional Rent shall be paid to Landlord at the
office of Landlord at Xxxxx/Xxxxxxxxx, File 1504, Xxx 00000, Xxx Xxxxxxxxx, XX
--------------------------------------------------------
94160
-----
or to such other person or to such other place as Landlord may from time to
time designate in writing.
F. Security Deposit. Concurrently with Tenant's execution of this Lease,
Tenant shall deposit with Landlord the sum or TWENTY SEVEN THOUSAND NINE HUNDRED
----------------------------------
EIGHTEEN AND NO/100 ($27,918.00) Dollars. Said sum shall be held by Landlord as
------------------- ---------
a Security Deposit for the faithful performance by Tenant of all of the terms,
covenants, and conditions of this Lease to be kept and performed by Tenant
during the term hereof. If Tenant defaults with respect to any provisions of
this Lease, including, but not limited to, the provisions relating to the
payment of rent and any of the monetary sums due herewith, Landlord may (but
shall not be required to) use, apply or retain all or any part of this Security
Deposit for the payment of any other amount which Landlord may spend by reason
of Tenant's default or to compensate Landlord for any other loss or damage which
Landlord may suffer by reason of Tenant's default. If any portion of said
Deposit is so used or applied, Tenant shall, within ten (10) days after written
demand therefor, deposit cash with Landlord in the amount sufficient to restore
the Security Deposit to its original amount. Tenant's failure to do so shall be
a material breach of this Lease. Landlord shall not be required to keep this
Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on such Deposit. If Tenant full and faithfully performs
every provision of this Lease to be performed by it, the Security Deposit or any
balance thereof shall be returned to Tenant (or at Landlord's option, to the
last assignee of Tenant's interest hereunder) at the expiration of this Lease
term and after Tenant has vacated the Premises. In the event of termination of
Landlord's interest in this Lease, Landlord shall transfer said Deposit to
Landlord's successor in interest whereupon Tenant agrees to release Landlord
from liability for the return of such deposit or the accounting therefor.
5. RULES AND REGULATIONS AND COMMON AREA Subject to the terms and conditions
of this Lease and such Rules and Regulations as Landlord may from time to time
prescribe, Tenant and Tenant's employees, invitees and customers shall, in
common with other occupants of the Complex in which the Premises are located,
and their respective employees, invitees and customers, and others entitled to
the use thereof, have the non-exclusive right to use the access roads, parking
areas, and facilities provided and designated by Landlord for the general use
and convenience of the occupants of the Complex in which the Premises are
located, which areas and facilities are referred to herein as "Common Area".
This right shall terminate upon the termination of this Lease. Landlord reserves
the right from time to time to make changes in the shape, size location, amount
and extent of Common Area. Landlord further reserves the right to promulgate
such reasonable rules and regulations relating to the use of the Common Area,
and any part or parts thereof, as Landlord may deem appropriate for the best
interests of the occupants of the Complex. The Rules and Regulations shall be
bringing upon Tenant upon delivery of a copy of them to Tenant, and Tenant shall
abide by them and cooperate in their observance. Such Rules and Regulations may
be amended by Landlord from time to time, with or without advance notice, and
all amendments shall be effective upon delivery of a copy to Tenant. Landlord
shall not be responsible to Tenant for the non-performance by any other tenant
or occupant of the Complex of any of said Rules and Regulations.
Landlord shall operate, manage and maintain the Common Area. The manner in
which the Common Area shall be maintained and the expenditures for such
maintenance shall be at the discretion of Landlord.
page 2 of 8
6. PARKING Tenant shall have the right to use with other tenants or
occupants of the Complex 51 parking spaces in the common parking areas of the
--
Complex. Tenant agrees, that Tenant, Tenant's employees, agents, representatives
and/or invitees shall not use parking spaces in excess of said 51 spaces
--
allocated to Tenant hereunder. Landlord shall have the right, at Landlord's sole
discretion, to specifically designate the location of Tenant's parking spaces
within the common parking areas of the Complex in the event of a dispute among
the tenants occupying the building and/or Complex referred to herein, in which
event Tenant agrees that Tenant, Tenant's employees, agents, representatives
and/or invitees shall not use any parking spaces other than those parking spaces
specifically designated by Landlord for Tenant's use. Said parking spaces, if
specifically designated by Landlord to Tenant, may be relocated by Landlord at
any time, and from time to time. Landlord reserves the right, at Landlord's sole
discretion, to rescind any specific designation of parking spaces, thereby
returning Tenant's parking spaces to the common parking area. Landlord shall
give Tenant written notice of any change in Tenant's parking spaces. Tenant
shall not, at any time, park, or permit the parking of Tenant's trucks or other
vehicles adjacent to the loading areas so as to interfere in any way with the
use of such areas, nor shall Tenant at any time park, or permit the parking of
Tenant's trucks or other vehicles or the trucks and vehicles of Tenant's
suppliers or others, in any portion of the common area not designated by
Landlord for such use by Tenant. Tenant shall not park nor permit to be parked
any inoperative vehicles or equipment on any portion of the common parking area
or other common areas of the Complex. Tenant agrees to assume responsibility for
compliance by its employees with the parking provision contained herein. If
Tenant or its employees park in other than such designated parking areas, then
Landlord may charge Tenant, as an additional charge, and Tenant agrees to pay,
ten ($10.00) Dollars per day for each day or partial day each such vehicle is
parked in any area other than that designated. Tenant hereby authorizes Landlord
at Tenant's sole expense to tow away from the Complex any vehicle belonging to
Tenant or Tenant's employees parked in violation of these provisions, or to
attach violation stickers or notices to such vehicles. Tenant shall use the
parking areas for vehicle parking only, and shall not use the parking areas for
storage.
7. EXPENSES OF OPERATION, MANAGEMENT, AND MAINTENANCE OF THE COMMON AREAS OF
THE COMPLEX AND BUILDING IN WHICH THE PREMISES ARE LOCATED. As Additional
Rent and in accordance with Paragraph 4D of this Lease, Tenant shall pay to
Landlord Tenant's proportionate share (calculated on a square footage or other
equitable basis as calculated by Landlord) of all expenses of operation,
management, maintenance and repair of the Common Areas of the Complex including,
but not limited to, license, permit and inspection fees; security; utility
charges associated with exterior landscaping and lighting (including water and
sewer charges); all charges incurred in the maintenance of landscaped areas,
lakes, parking lots, sidewalks, driveways; maintenance, repair and replacement
of all fixtures and electrical, mechanical, and plumbing systems; structural
elements and exterior surfaces of the buildings; salaries and employee benefits
of personnel and payroll taxes applicable thereto; supplies, materials,
equipment and tools; the amortized cost of capital expenditures which have the
effect of reducing operating expenses, provided, however, that in the event
Landlord makes such capital improvements, Landlord may amortize its investment
in said improvements (together with interest at the rate of fifteen (15%)
percent per annum on the unamortized balance) as an operating expense in
accordance with standard accounting practices, provided, that such amortization
is not at a rate greater than the reasonably anticipated savings in the
operating expenses.
"Additional Rent" as used herein shall not include Landlord's debt repayments;
interest on charges; expenses directly or indirectly incurred by Landlord for
the benefit of any other tenant; cost for the installation of partitioning or
any other tenant improvements; cost of attracting tenants; depreciation;
interest, or executive salaries.
As Additional Rent and in accordance with paragraph 4 D of this Lease, TENANT
shall pay its proportionate share (calculated on a square footage or other
equitable basis as calculated by Landlord) of the cost of operation (including
common utilities), management, maintenance, and repair of the building
(including common areas such as lobbies, restrooms, janitor's closets, hallways,
elevators, mechanical and telephone rooms, stairwells, entrances, spaces above
the ceilings and janitorization of said common areas) in which the Premises are
located. The maintenance items herein referred to include, but are not limited
to, all windows, window frames, plate glass, glazing, truck doors, main plumbing
systems of the building (such as water and drain lines, sinks, toilets, faucets,
drains, showers and water (fountains), main electrical systems (such as panels
and conduits), heating and airconditioning systems (such as compressors, fans,
air handlers, ducts, boilers, heaters), store fronts, roofs, downspouts,
building common area interiors (such as wall coverings, window coverings, floor
coverings and partitioning), ceilings, building exterior doors, skylights (if
any), automatic fire extinguishing systems, and elevators; license, permit, and
inspection fees; security; salaries and employee benefits of personnel and
payroll taxes applicable thereto; supplies, materials, equipment and tools; the
cost of capital expenditures which have the effect of reducing operating
expenses, provided, however, that in the event Landlord makes such capital
improvements, Landlord may amortize its investment in said improvements
(together with interest at the rate of fifteen (15%) percent per annum on the
unamortized balance) as an operating expense in accordance with standard
accounting practices, provided, that such amortization is not at a rate greater
than the anticipated savings in the operating expenses, Tenant hereby waives all
rights under, and benefits of, subsection 1 of Section 1932 and Sections 1941
and 1942 of the California Civil Code and under any similar law, statute or
ordinance now or hereafter in effect.
Initial: (illegible)
---------------
8. ACCEPTANCE AND SURRENDER OF PREMISES By entry hereunder, Tenant accepts
the Premises as being in good and sanitary order, condition and repair and
accepts the building and improvements included in the Premises in their present
condition and without representation or warranty by Landlord as to the condition
of such building or as the use or occupancy which may be made thereof. Any
exceptions to the foregoing must be by written agreement executed by Landlord
and Tenant. Tenant agrees on the last day of the Lease term, or on the sooner
termination of this Lease, to surrender the Premises promptly and peaceably to
Landlord in good condition and repair (damage by Acts of God, fire, normal wear
and tear excepted), with all interior walls painted, or cleaned so that they
appear freshly painted, and repaired and replaced, if damaged; all floors
cleaned and waxed; all carpets cleaned and shampooed; the airconditioning and
heating equipment serviced by a reputable and licensed service firm and in good
operating condition (providing the maintenance of such equipment has been
Tenant's responsibility during the term of the Lease) together with all
alterations, additions, and improvements which may have been made in, to or on
the Premises (except movable trade fixtures installed at the expense of Tenant)
except that Tenant shall ascertain from Landlord within thirty (30) days before
the end of the term of this Lease whether Landlord desires to have the Premises
or any part or parts thereof restored to their condition and configuration as
when the Premises were delivered to Tenant and if Landlord shall so desire, then
Tenant shall restore said Premises or such part or parts thereof before the end
of this Lease at Tenant's sole cost and expense. Tenant, on or before the end
of the term of sooner termination of this Lease, shall remove all of Tenant's
personal property and trade fixtures from the Premises, and all property not so
removed on or before the end of the term or sooner termination of this Lease
shall be deemed abandoned by Tenant and title to same shall thereupon pass to
Landlord without compensation to Tenant. Landlord may, upon termination of this
Lease, remove all movable furniture and equipment so abandoned by Tenant, at
Tenant's sole cost, and repair any damage caused by such removal at Tenant's
sole cost. If the Premises be not surrendered at the end of the term or sooner
termination of this Lease, Tenant shall indemnify Landlord against loss or
liability resulting from the delay by Tenant in so surrendering the Premises
including, without limitation, any claims made by any succeeding tenant found on
such delay. Nothing contained herein shall be construed as an extension of the
term hereof or as a consent of Landlord to any holding over by Tenant. The
voluntary or other surrender of this Lease or the Premises by Tenant or a mutual
cancellation of this Lease shall not work as a merger and, at the option of
Landlord, shall either terminate all or any existing subleases or subtenancies
or operate as an assignment to Landlord of any such subleases or subtenancies.
9. ALTERATIONS AND ADDITIONS Tenant shall not make, or suffer to be made, any
alteration or addition to the Premises, or any part thereof, without the written
consent of Landlord first had and obtained by Tenant, but at the cost of Tenant,
and any addition to, or alteration of, the Premises, except moveable furniture
and trade fixtures, shall at once become a part of the Premises and belong to
the Landlord. Landlord reserves the right to reasonably approve all contractors
and mechanics proposed by Tenant to make such alterations and additions. Tenant
shall retain title to all moveable furniture and trade fixtures placed on the
Premises. All heating, lighting, electrical, airconditioning, floor to ceiling
partitioning, drapery, carpeting, and floor installations made by Tenant,
together with all property that has become an integral part of the Premises,
shall not be deemed trade fixtures. Tenant agrees that it will not proceed to
make such alteration or additions, without having obtained consent from Landlord
to do so, and until five (5) days from the receipt of such consent, in order
that Landlord may post appropriate notices to avoid any liability to contractors
or material suppliers for payment for Tenant's improvements. Tenant will at all
times permit such notices to be posted and to remain posted until the completion
of work. Tenant shall, if required by Landlord, secure at Tenants own cost and
expense, a completion and lien indemnity bond, satisfactory to Landlord, for
such work. Tenant further covenants and agrees that any mechanics lien filed
against the Premises or against the Complex for work claimed to have been done
for, or materials claimed to have been furnished to Tenant, will be discharged
by Tenant, by bond or otherwise, within ten (10) days after the filing thereof,
at the cost and expense of Tenant. Any exceptions to the foregoing must be made
in writing and executed by both Landlord and Tenant.
10. TENANT MAINTENANCE Tenant shall, at its sole cost and expense, keep and
maintain the Premises (including appurtenances) and every part thereof in a high
standard of maintenance and repair, and in good and sanitary condition. Tenants
maintenance and repair responsibilities herein referred to include, but are not
limited to, janitorization, plumbing systems within the non-common areas of the
Premises (such as water and drain lines), electrical systems within the non-
common areas of the Premises (such as outlets, lighting fixtures, lamps, bulbs,
tubes, ballasts), heating and airconditioning controls within the non-common
areas of the Premises (such as mixing boxes, thermostats, time clocks, supply
and return grills), all interior improvements within the premises including but
not limited to: wall coverings, window coverings, acoustical ceilings, vinyl
tile, carpeting, partitioning, ceilings, doors (both interior and exterior,
including closing mechanisms, latches, locks) and all other interior
improvements of any nature whatsoever. Tenant agrees to provide carpet xxxxxxx
under all rolling chairs or to otherwise be responsible for wear and tear of the
carpet caused by such rolling chairs if such wear and tear exceeds that caused
by normal foot traffic in surrounding areas. Areas of excessive wear shall be
replaced at Tenants sole expense upon Lease termination.
Initial: (illegible)
---------------
page 3 of 8
11. UTILITIES OF THE BUILDING IN WHICH THE PREMISES ARE LOCATED. As Additional
Rent and in accordance with paragraph 4 D of this Lease, Tenant shall pay its
proportionate share (calculated on a square footage or other equitable basis as
calculated by Landlord) of the cost of all utility charges such as water, gas,
electricity, telephone, telex and other electronic communications service, sewer
service, waste pick-up and other utilities, materials or services furnished
directly to the building in which the Premises are located, including, without
limitation, any temporary or permanent utility surcharge or other exactions
whether or not herein after imposed.
Landlord shall not be liable for and Tenant shall not be entitled to any
abatement or reduction of rent by reason of any interruption or failure of
utility services in the Premises when such interruption or failure is caused by
accident, breakage, repair, strikes, lockouts, or other labor disturbances or
labor disputes of any nature, or by any other cause, similar or dissimilar,
beyond the reasonable control of Landlord.
Provided that Tenant is not in default in the performance or observance of any
of the terms, covenants or conditions of this Lease to be performed or observed
by it, Landlord shall furnish to the Premises between the hours of 8:00AM and
6:00PM, Mondays through Fridays (holidays excepted) and subject to the rules and
regulations of the Complex hereinbefore referred to, reasonable quantities of
water, gas and electricity suitable for the intended use of the Premises and
heat and airconditioning required in Landlord's judgment for the comfortable use
and occupation of the Premises for such purposes. Tenant agrees that at all
times it will cooperate fully with Landlord and abide by all regulations and
requirements that Landlord may prescribe for the proper functioning and
protection of the building heating, ventilating and airconditioning systems.
Whenever heat generating machines, equipment, or any other devices (including
exhaust fans) are used in the Premises by TENANT which affect the temperature or
otherwise maintained by the airconditioning system, Landlord shall have the
right to install supplementary airconditioning units in the Premises and the
cost thereof, including the cost of installation and the cost of operation and
maintenance thereof, shall be paid by Tenant to Landlord upon demand by
Landlord. Tenant will not, without the written consent of Landlord, use any
apparatus or device in the Premises (including, without limitation), electronic
data processing machines or machines using current in excess of 110 Volts which
will in any way increase the amount of electricity, gas, water or
airconditioning usually furnished or supplied to premises being used as general
office space, or connect with electric current (except through existing
electrical outlets in the Premises), or with gas or water pipes any apparatus or
device for the purposes of using electric current, gas, or water. IF Tenant
shall require water, gas, or electric current in excess of that usually
furnished or supplied to premises being used as general office, space, Tenant
shall first obtain the written consent of Landlord, which consent shall not be
unreasonably withheld and Landlord may cause an electric current, gas, or water
meter to be installed in the Premises in order to measure the amount of electric
current, gas or water consumed for any such excess use. The cost of any such
meter and of the installation, maintenance and repair thereof, all charges for
such excess water, gas and electric current consumed (as shown by such meters
and at the rates then charged by the furnishing public utility); and any
additional expense incurred by Landlord in keeping account of electric current,
gas, or water so consumed shall be paid by Tenant, and Tenant agrees to pay
Landlord therefor promptly upon demand by Landlord.
12. TAXES A. As Additional Rent and in accordance with Paragraph 4 D of this
Lease, Tenant shall pay to Landlord Tenants proportionate share of all Real
Property Taxes, which prorata share shall be allocated to the leased Premises by
square footage or other equitable basis, as calculated by Landlord. The term
"Real Property Taxes", as used herein, shall mean (i) all taxes, assessments,
levies and other charges of any other kind or nature whatsoever, general and
special, foreseen and unforeseen (including all installments of principal and
interest required to pay any general or special assessments for public
improvements and any increases resulting from reassessments caused by any change
in ownership of the Complex) now or hereafter imposed by any governmental or
quasi-governmental authority or special district having the direct or indirect
power to tax or levy assessments, which are levied or assessed against, or with
respect to the value, occupancy or use of, all or any portion of the Complex (as
now constructed or as may at any time hereafter be constructed, altered or
otherwise changed) or Landlord's interest therein; any improvements located
within the Complex (regardless of ownership); the fixtures, equipment and other
property of Landlord, real or personal, that are an integral part of and located
in the Complex; or parking areas, public utilities, or energy within the
Complex; (ii) all charges, levies or fees imposed by reason of environmental
regulation or other governmental control of the Complex and (iii) all costs and
fees (including reasonable attorneys fees) incurred by Landlord in contesting
any Real Property Tax and in negotiating with public authorities as to any Real
Property Tax. If at any time during the term of this Lease the taxation or
assessment of the Complex prevailing as of the commencement date of this Lease
shall be altered so that in lieu of or in addition to any Real Property Tax
described above there shall be levied, assessed or imposed (whether by reason of
a change in the method of taxation or assessment, creation of a new tax or
charge, or any other cause) an alternate or additional tax or charge (i) on the
value, use or occupancy of the Complex or Landlord's interest therein or (ii) on
or measured by the gross receipts, income or rentals from the Complex, on
Landlord's business of leasing the Complex, or computed in any manner with
respect to the operation of the Complex, then any such tax or charge, however
designated, shall be included within the meaning of the term "Real Property
Taxes" for purposes of this Lease. If any Real Property Tax is based upon
property or rents unrelated to the Complex, then only that part of such real
Property Tax that is fairly allocable to the Complex shall be included within
the meaning of the term "Real Property Taxes". Notwithstanding the foregoing,
the term "Real Property Taxes" shall not include estate, inheritance, gift or
franchise taxes of Landlord or the federal or state net income tax imposed on
Landlord's income from all sources
B. Taxes on Tenant's Property
(a) Tenant shall be liable for and shall pay ten days before delinquency,
taxes levied against any personal property or trade fixtures placed by Tenant in
or about the Premises. If any such taxes on Tenant's personal property or trade
fixtures are levied against Landlord or Landlord's property or if the assessed
value of the Premises is increased by the inclusion therein of a value placed
upon such personal property or trade fixtures of Tenant and if Landlord, after
written notice to Tenant, pays the taxes based on such increased assessment,
which Landlord shall have the right to do regardless of the validity thereof,
but only under proper protest if requested by Tenant, Tenant shall upon demand,
as the case may be, repay to Landlord the taxes so levied against Landlord, or
the proportion of such taxes resulting from such increase in the assessment;
provided that in any such event Tenant shall have the right, in the name of
Landlord and with Landlord's full cooperation, to bring suit in any court of
competent jurisdiction to recover the amount of any such taxes so paid under
protest, and any amount so recovered shall belong to Tenant.
(b) if the Tenant improvements in the Premises, whether installed, and/or paid
for by Landlord or Tenant and whether or not affixed to the real property so as
to become a part thereof, are assessed for real property tax purposes at a
valuation higher than the valuation at which standard office improvements in
other space in the Complex are assessed, then the real property taxes and
assessments levied against Landlord or the Complex by reason of such excess
assess valuation shall be deemed to be taxes levied against personal property of
Tenant and shall be governed by the provisions of 12Ba, above. If the records of
the County Assessor are available and sufficiently detailed to serve as a basis
for determining whether said Tenant improvements are assessed at higher
valuation than standard office improvements in other space in the Complex, such
records shall be binding on both the Landlord and the Tenant. If the records of
the County Assessor are not available or sufficiently detailed to serve as a
basis for making said determination, the actual cost of construction shall be
used.
13. LIABILITY INSURANCE Tenant at Tenant's expense, agrees to keep in force
during the term of the Lease a policy of commercial general liability insurance
with combined single limit coverage of not less than Two Million Dollars
($2,000,000) for injuries to or death of persons occurring in, on or about the
Premises or the Complex, and property damage. The policy or policies affecting
such insurance, certificates of insurance of which shall be furnished to
Landlord, shall name Landlord as additional insureds, and shall insure any
liability of Landlord, contingent or otherwise, as respects acts or omissions of
Tenant, its agents, employees or invitees or otherwise by any conduct or
transactions of any of said persons in or about or concerning the Premises,
including any failure of Tenant to observe or perform any of its obligations
hereunder, shall be issued by an insurance company admitted to transact business
in the State of California; and shall provide that the insurance effected
thereby shall not be canceled, expect upon thirty (30) days' prior written
notice to Landlord. If during the term of this Lease, in the considered opinion
of Landlord's Lender, or insurance advisor, or counsel, the amount of insurance
described in this paragraph 13 is not adequate, Tenant agrees to increase said
coverage of such reasonable amount as Landlord's Lender, insurance advisor, or
counsel shall deem adequate.
14. TENANT'S PERSONAL PROPERTY INSURANCE AND XXXXXXX'X COMPENSATION INSURANCE
Tenant shall maintain a policy or policies of fire and property damage insurance
in "all risk" form with a sprinkler leakage endorsement insuring the personal
property, inventory, trade fixtures, and leasehold improvements within the
leased Premises for the full replacement value thereof. The proceeds from any
of such policies shall be used for the repair or replacement of such items so
insured.
Tenant shall also maintain a policy or policies of xxxxxxx'x compensation
insurance and any other employees benefit insurance sufficient to comply with
all laws.
15. PROPERTY INSURANCE Landlord shall purchase and keep in force and as
Additional Rent and in accordance with Paragraph 4D of Lease, Tenant shall pay
to Landlord (or Landlord's agent if so directed by Landlord) Tenant's
proportionate share (calculated on a square footage or other equitable basis as
calculated by Landlord) of the deductibles on insurance claims and the cost of
policy or policies of insurance covering loss or damage to the Premises and
Complex in the amount of the full replacement value thereof, providing
protection against those perils included within the classification of "all
risks" insurance and flood and/or earthquake insurance, if available, plus a
policy of rental income insurance in the amount of one hundred (100%) percent of
twelve (12) months Basic Rent, plus sums paid as Additional Rent. If such
insurance cost is increased due to Tenant's use of the Premises of the Complex,
Tenant agrees to pay to Landlord the full cost of such increase. Tenant shall
have no interest in nor any right to the proceeds of any insurance procured by
Landlord for the Complex.
Landlord and Tenant do each hereby respectively release the other, to the
extent of the insurance coverage of the releasing party, from any liability for
loss or damage caused by fire or any of the extended coverage casualties
included in the releasing party's insurance policies, irrespective of the cause
of such fire or casualty; provided, however, that if the insurance policy of
either releasing party prohibits such waiver, then this waiver shall not take
effect until consent to such waiver is obtained. If such waiver is so
prohibited, the insured party affected shall promptly notify the other party
thereof.
Initial: (Illegible)
-------------
page 4 of 8
16. INDEMNIFICATION Landlord shall not be liable to Tenant and Tenant hereby
waives all claims against Landlord for any injury to or death of any person or
damage to or destruction of property in or about the Premises or the Complex by
or from any cause whatsoever, including, without limitation, gas, fire, oil,
electricity or leakage of any character from the roof, walls, basement or other
portion of the Premises or the Complex but excluding, however, the willful
misconduct or negligence of Landlord, its agents, servants, employees, invitees,
or contractors of which negligence Landlord has knowledge and reasonable time to
correct. Except as to injury to persons or damage to property to the extent
arising from the willful misconduct or the negligence of Landlord, its agents,
servants, employees, invitees, or contractors. Tenant shall hold Landlord
harmless from and defend Landlord against any and all expenses, including
reasonable attorney's fees, in connection therewith, arising out of any injury
to or death of any person or damage to or destruction of property occurring in,
on or about the Premises, or any part thereof, from any cause whatsoever.
17. COMPLIANCE Tenant, at its sole cost and expense, shall promptly comply with
all laws, statutes, ordinances and governmental rules, regulations or
requirements now or hereafter in effect; with the requirements of any board of
fire underwriters or other similar body now or hereafter constituted; and with
any direction or occupancy certificate issued pursuant to law by any public
officer; provided, however, that no such failure shall be deemed a breach of the
provisions if Tenant, immediately upon notification, commences to remedy or
rectify said failure. The judgment of any court of competent jurisdiction or the
admission of Tenant in any action against Tenant, whether Landlord be a party
thereto or not, that Tenant has violated any such law, statute, ordinance or
governmental rule, regulation, requirement, direction or provision shall be
conclusive of that fact as between Landlord and Tenant. This paragraph shall not
be interpreted as requiring Tenant to make structural changes or improvements,
except to the extent such changes or improvements are required as a result of
Tenants use of the Premises. Tenant 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
public liability insurance covering the Premises.
18. LIENS Tenant shall keep the Premises and the Complex free from any liens
arising out of any work performed, materials furnished or obligation incurred by
Tenant. In the event that Tenant shall not, within ten (10) days following the
imposition of such lien, cause the same to be released of record. Landlord shall
have, in addition to all other remedies provided herein and by law, the right,
but no obligation, to cause the same to be released by such means as it shall
deem proper, including payment of the claim giving rise to such lien. All sums
paid by Landlord for such purpose, and all expenses incurred by it in connection
therewith, shall be payable to Landlord by Tenant on demand with interest at the
prime rate of interest as quoted by the Bank of America.
19. ASSIGNMENT AND SUBLETTING Tenant shall not assign, transfer, or
hypothecate the leasehold estate under this Lease, or any interest therein, and
shall not sublet the Premises, or any part thereof, or any right or privilege
appurtenant thereto, or suffer any other person or entity to occupy or use the
Premises, or any portion thereof, without, in each case, the prior written
consent of Landlord which consent will not be unreasonably withheld. As a
condition for granting this consent to any assignment, transfer, or subletting,
Landlord may require that Tenant agrees to pay to Landlord, as additional rent,
all rents or additional consideration received by Tenant from its assignees,
transferees, or subtenants in excess of the rent payable by Tenant to Landlord
hereunder. Tenant shall, by thirty (30) days written notice, advise Landlord of
its intent to assign or transfer Tenant's interest in the Lease or sublet the
Premises or any portion thereof for any part of the term hereof. Within thirty
(30) days after receipt of said written notice, Landlord may, in its sole
discretion, elect to terminate this Lease as to the portion of the Premises
described in Tenant's notice on the date specified in Tenant's notice by giving
written notice of such election to terminate. If no such notice to terminate is
given to Tenant within said thirty (30) day period, Tenant may proceed to locate
an acceptable sublessee, assignee, or other transferee from presentment to
Landlord for Landlord's approval, all in accordance with the terms, covenants,
and conditions of this paragraph 19. If Tenant intends to sublet the entire
Premises and Landlord elects to terminate this Lease, this Lease shall be
terminated on the date specified in Tenant's notice. If, however, this Lease
shall terminate pursuant to the foregoing with respect to less than all the
Premises, the rent, as defined and reserved hereinabove shall be adjusted on a
pro rata basis to the number of square feet retained by Tenant, and this Lease
as so amended shall continue in full force and effect. In the event Tenant is
allowed to assign, transfer or sublet the whole or any part of the Premises,
with the prior written consent of Landlord, no assignee, transferee or subtenant
shall assign or transfer this Lease, either in whole or in part, or sublet the
whole or any part of the Premises, without also having obtained the prior
written consent of Landlord which consent shall not be unreasonably withheld. A
consent of Landlord to one assignment, transfer, hypothecation, subletting,
occupation or use by any other person shall not release TENANT from any of
Tenant's obligations hereunder or be deemed to be a consent to any subsequent
similar or dissimilar assignment, transfer, hypothecation, subletting,
occupation or use by any other person. Any such assignment, transfer,
hypothecation, subletting, occupation or use without such consent shall be void
and shall constitute a breach of this Lease by Tenant and shall, at the option
of Landlord exercised by written notice to Tenant, terminate this Lease. The
leasehold estate under this Lease shall not, nor shall any interest therein, be
assignable for any purpose by operation of law without the written consent of
Landlord which consent shall not be unreasonably withheld. As a condition to its
consent, Landlord may require Tenant to pay all expenses in connection with the
assignment, and Landlord may require Tenant's assignee or transferee (or other
assignees or transferees) to assume in writing all of the obligations under this
Lease and for Tenant to remain liable to Landlord under the Lease.
20. SUBORDINATION AND MORTGAGES In the event Landlord's title or leasehold
interest is now or hereafter encumbered by a deed of trust, upon the interest of
Landlord in the land and buildings in which the demised Premises are located, to
secure a loan from a lender (hereinafter referred to as "Lender") to Landlord,
Tenant shall, at the request of Landlord or Lender, execute in writing an
agreement subordinating its rights under this Lease to the lien of such deed of
trust, or, if so requested, agreeing that the lien of Lender's deed of trust
shall be or remain subject and subordinate to the rights of Tenant under this
Lease. Notwithstanding any such subordination, Tenant's possession under this
Lease shall not be disturbed if Tenant is not in default and so long as Tenant
shall pay all rent and observe and perform all of the provisions set forth in
this Lease.
21. ENTRY BY LANDLORD Landlord reserves, and shall at all reasonable times
after at least 24 hours notice (except in emergencies) have, the right to enter
the Premises to inspect them; to perform any services to be provided by Landlord
hereunder; to submit the Premises to prospective purchasers, mortgagers or
tenants; to post notices of nonresponsibility; and to alter, improve or repair
the Premises and any portion of the Complex, all without abatement of rent; and
may erect scaffolding and other necessary structures in or through the Premises
where reasonably required by the character of the work to be performed;
provided, however that the business of Tenant shall be interfered with to the
least extent that is reasonably practical. For each of the foregoing purposes,
any entry to the Premises obtained by Landlord by any of said means, or
otherwise, shall not under any circumstances be construed or deemed to be a
forcible or unlawful entry into or a detainer of the Premises or an eviction,
actual or constructive, of Tenant from the Premises or any portion thereof.
Landlord shall also have the right at any time to change the arrangement or
location of entrances or passageways, doors and doorways, and corridors,
elevators, stairs, toilets or other public parts of the Complex and to change
the name, number or designation by which the Complex is commonly known, and none
of the foregoing shall be deemed an actual or constructive eviction of Tenant,
or shall entitle Tenant to any reduction of rent hereunder.
22. BANKRUPTCY AND DEFAULT The commencement of a bankruptcy action or
liquidation action or reorganization action or insolvency action or an
assignment of or by Tenant for the benefit of creditors, or any similar action
undertaken by Tenant, or the insolvency of Tenant, shall, at Landlord's option,
constitute a breach of this Lease by Tenant. If the trustee or receiver
appointed to serve during a bankruptcy, liquidation, reorganization, insolvency
or similar action elects to reject Tenant's unexpired Lease, the trustee or
receiver shall notify Landlord in writing of its election within thirty (30)
days after an order for relief in a liquidation action or within thirty (30)
days after the commencement of any action.
Within thirty (30) days after court approval of the assumption of this Lease,
the trustee or receiver shall cure (or provide adequate assurance to the
reasonable satisfaction of Landlord that the trustee or receiver shall cure)any
and all previous defaults under the unexpired Lease and shall compensate
Landlord for all actual pecuniary loss and shall provide adequate assurance of
future performance under said Lease to the reasonable satisfaction of Landlord.
Adequate assurance of future performance, as used herein, includes, but shall
not be limited to: (i) assurance of source and payment of rent, and other
consideration due under this Lease; (ii) assurance that the assumption or
assignment of this Lease will not breach substantially any provision, such as
radius, location, use, or exclusivity provision, in any agreement relating to
the above described Premises.
Nothing contained in this section shall affect the existing right of Landlord
to refuse to accept an assignment upon commencement of or in connection with a
bankruptcy, liquidation, reorganization or insolvency action or an assignment of
Tenant for the benefit of creditors or other similar act. Nothing contained in
this Lease shall be construed as giving or granting or creating an equity in the
demised Premises to Tenant. In no event shall the leasehold estate under this
Lease or any interest therein, be assigned by voluntary or involuntary
bankruptcy proceeding without the prior written consent of Landlord. In no event
shall this Lease or any rights or privileges hereunder be an asset of Tenant
under any bankruptcy, insolvency or reorganization proceedings.
The failure to perform or honor any covenant, condition or representation made
under this Lease shall constitute a default hereunder by Tenant upon expiration
of the appropriate grace period hereinafter provided. Tenant shall have a period
of five (5) days from the date of written notice from Landlord within which to
cure any default in the payment of rental or adjustment thereto. Tenant shall
have a period of thirty (30) days from the date of written notice from Landlord
within which to cure any other default under this Lease; provided, however, that
if the nature of Tenant's failure is such that more than thirty (30) days is
reasonably required to cure the same, Tenant shall not be in default so long as
Tenant commences performance within such thirty (30) day period and thereafter
prosecutes the same to completion. Upon an uncured default of this Lease by
Tenant, Landlord shall have the following rights and remedies in addition to any
other rights or remedies available to Landlord at law or in equity.
(a). The rights and remedies provided for by California Civil Code Section
1951.2, including but not limited to, recovery of 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 rental loss for the same period that Tenant
proves could be reasonably avoided, as computed pursuant to subsection (b) of
said Section 1951.2. Any proof by Tenant under subparagraphs (2) and (3) of
Section 1951.2 of the California Civil Code of the amount of rental loss that
could be reasonably avoided shall be made in the following manner: Landlord and
Tenant shall each select a licensed real estate broker in the business of
renting property of the same type and use as the Premises and in the same
geographic vicinity. Such two real estate brokers shall select a third licensed
real estate
page 5 of 8
broker, and the three licensed real estate brokers so selected shall determine
the amount of the rental loss that could be reasonably avoided from the balance
of the term of this Lease after the time of award. The decision of the majority
of said licensed real estate brokers shall be final and binding upon the parties
hereto.
(b) The rights and remedies provided by California Civil Code Section which
allows Landlord to continue the Lease in effect and to enforce all of its rights
and remedies under this Lease, including the right to recover rent as it becomes
due, for so long as Landlord does not terminate Tenant's right to possession;
acts of maintenance or preservation, efforts to relet the Premises, or the
appointment of a receiver upon Landlord's initiative to protect its interest
under this Lease shall not constitute a termination of Tenant's right to
possession.
(c) The right to terminate this Lease by giving notice to Tenant in accordance
with applicable law.
(d) The right and power; to the extent permitted by law, to enter the Premises
and remove all persons and property, to store such property in a public
warehouse or elsewhere at the cost of and for the account of Tenant and to sell
such property and apply such proceeds therefrom pursuant to applicable
California law. Landlord, may from time to time sublet the Premises or any part
thereof for such term or terms (which may extend beyond the term of this Lease)
and at such rent and such other terms as Landlord in its sole discretion may
deem advisable, with the right to make alterations and repairs to the Premises.
Upon each subletting, (i) Tenant shall be immediately liable to pay Landlord, in
addition to indebtedness other that rent due hereunder, the cost of such
subletting, including, but not limited to, reasonable attorney's fees, and any
real estate commissions actually paid, and the costs of such alterations and
repairs incurred by Landlord and the amount, if any, by which the rent hereunder
for the period of such subletting (to the extent such period does not exceed the
term hereof) exceeds the amount to be paid as rent for the Premises for such
period or (ii) at the options of Landlord, rents received from such subletting
shall be applied first to payment of indebtedness other than rent due hereunder
from Tenant to Landlord; second, to the payment of any costs of such alterations
and repairs; third to payment of rent due and unpaid hereunder; and the residue,
if any, shall be held by Landlord and applied in payment of future rent as the
same becomes due hereunder. If Tenant has been credited from such subletting
under option (ii) during any months be less than that to be paid during that
month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord.
Such deficiency shall be calculated and paid monthly. For all purposes set forth
in this subparagraph 4. No taking possession of the Premises by Landlord, shall
be construed as an election on its part to terminate this Lease unless a written
notice of such intention be given to Tenant. Notwithstanding any such subletting
without termination. Landlord may at any time hereafter elect to terminate this
Lease for such previous breach.
(e). The right to have a receiver appointed for Tenant upon application by
Landlord, to take possession of the Premises and to apply any rental collected
from the Premises and to exercise all other rights and remedies granted to
Landlord pursuant to subparagraph d, above.
23. ABANDONMENT Tenant shall not vacate or abandon the Premises at any time
during the term of this Lease (except that Tenant may vacate so long as it pays
rent, provides an on-site security guard during normal business hours from
Monday through Friday, and otherwise performs its obligations hereunder), and if
Tenant shall abandon, vacate or surrender said Premises, or be dispossessed by
the process of law, or otherwise, any personal property belonging to Tenant and
left on the Premises shall be deemed to be abandoned, at the option of Landlord,
except such property as may be mortgaged to Landlord.
24. DESTRUCTION In the event the Premises are destroyed in whole or in part from
any cause, except for routine maintenance and repairs and incidental damage and
destruction caused from vandalism and accidents for which Tenant is responsible
for under Xxxxxxxxx 00, Xxxxxxxx may, at its option:
(a) Rebuild or restore the Premises to their condition prior to the damage or
destruction, or
(b) Terminate this Lease. (providing that the Premises is damaged to the
extent of 33 1/3% of the replacement cost)
If Landlord does not give Tenant notice in writing within thirty (30) days
from the destruction of the Premises of its election to either rebuild and
restore them and the estimated time required to rebuild or restore or to
terminate this Lease, Landlord shall be deemed to have elected to rebuild or
restore them, in which event Landlord agrees, at its expense, promptly to
rebuild or restore the Premises to their condition prior to the damage or
destruction. Tenant shall be entitled to a reduction in rent while such repair
is being made in the proportion that the area of the Premises rendered
untenantable by such damage bears to the total area of the Premises. If Landlord
initially estimates that the rebuilding or restoration will exceed 180 days or
if Landlord does not complete the rebuilding or restoration within on hundred
eighty (180) days following the date of destruction (such period of time to be
extended for delays caused by the fault or neglect of Tenant or because of Acts
of God, acts of public agencies, labor disputes, strikes, fires, freight
embargoes, rainy or stormy weather, inability to obtain materials, supplies or
fuels, acts of contractors or subeontractors or delay of the contractors or
subeontractors due to such causes or other contingencies beyond the control of
Landlord), then Tenant shall have the right to terminate this Lease by giving
fifteen (15) days prior written notice to Landlord. Notwithstanding anything
herein to the contrary, Landlord's obligation to rebuild or restore shall be
limited to the building and interior improvements constructed by Landlord as
they existed as of the commencement date of the Lease and shall not include
restoration of Tenant's trade fixtures, equipment, merchandise, or any
improvements, alterations or additions made by Tenant to the Premises, which
Tenant shall forth replace or fully repair at Tenant's sole cost and expense
provided this Lease is not cancelled according to the provisions above.
Unless this Lease is terminated pursuant to the foregoing provisions, this
Lease shall remain in full force and effect. Tenant hereby expressly waives the
provisions Section 1932, Subdivision 2, in Section 1933, Subdivision 4 of the
California Civil Code.
In the event that the building in which the Premises are situated is damaged
or destroyed to the extent of not less than 33 1/3% of the replacement cost
thereof, Landlord may elect to terminate this Leas, whether the Premises be
injured or not.
25. EMINENT DOMAIN If all or any part of the Premises shall be taken by any
public or quasi-public authority under the power of eminent domain or conveyance
in lieu thereof, this Lease shall terminate as to any portion of the Premises so
taken or conveyed on the date when title vests in the condemnor, and Landlord
shall be entitled to any and all payment, income, rent, award, or any interest
therein whatsoever which may be paid or made in connection with such taking or
conveyance, and Tenant shall have no claim against Landlord or otherwise for the
value of any unexpired term of this Lease. Notwithstanding the foregoing
paragraph, any compensation specifically awarded to Tenant for loss of business,
Tenant's personal property, moving cost or loss of good will, shall be and
remain the property of Tenant.
If (i) any action or proceeding is commenced for such taking of the Premises
or any part thereof, or if Landlord is advised in writing by any entity or body
having the right or power of condemnation of its intention to condemn the
premises or any portion thereof, or (ii) any of the foregoing events occur with
respect to the taking of any space in the Complex not leased hereby, or if any
such spaces so taken or conveyed in lieu of such taking and Landlord shall
decide to discontinue the use and operation of the Complex, or decide to
demolish, alter or rebuild the Complex, then, in any of such events Landlord
shall have the right to terminate this Lease by giving Tenant written notice
thereof within sixty (60) days of the date of receipt of said written advice, or
commencement of said action or proceeding, or taking conveyance, which
termination shall take place as of first to occur of the last day of the
calendar month next following the month in which such notice is given or the
date on which title to the Premises shall vest in the condemnor.
In the event of such a partial taking or conveyance of the Premises, if the
portion of the Premises taken or conveyed is so substantial that the Tenant can
no longer reasonably conduct its business, Tenant shall have the privilege of
terminating this Lease within sixty (60) days from the date of such taking or
conveyance, upon written notice to Landlord of its intention so to do, and upon
giving of such notice this Lease shall terminate on the last day of the calendar
month next following the month in which such notice is given, upon payment by
Tenant of the rent from the date of such taking or conveyance to the date of
termination.
If a portion of the Premises be taken by condemnation or conveyance in lieu
thereof and neither Landlord nor Tenant shall terminate this Lease as provided
herein, this Lease shall continue in full force and effect as to the part of the
Premises not so taken or conveyed, and the rent herein shall be apportioned as
of the date of such taking or conveyance so that thereafter the rent to be paid
by Tenant shall be in the ratio that the area of the portion of the Premises not
so taken or conveyed bears to the total area of the Premises prior to such
taking.
26. SALE OR CONVEYANCE BY LANDLORD In the event of a sale or conveyance of the
Complex or any interest therein, by any owner of the reversion then constituting
Landlord, the transferor shall thereby be released from any further liability
upon any of the terms, covenants or conditions (express or implied) herein
contained in favor of Tenant, and in such event, insofar as such transfer is
concerned, Tenant agrees to look solely to the responsibility of the successor
in interest of such transferor in and to the Complex and this Lease. This Lease
shall not be affected by any such sale or conveyance, and Tenant agrees to
attorn to the successor in interest of such transferor.
27. ATTORNMENT TO LENDER OR THIRD PARTY In the event the interest of Landlord in
the land and buildings in which the leased Premises are located (whether such
interest of Landlord is a fee title interest or a leasehold interest) is
encumbered by deed of trust, and such interest is acquired by the lender or any
third party through judicial foreclosure or by exercise of a power of sale at
private trustee's foreclosure sale. Tenant hereby agrees to attorn to the
purchaser at any such foreclosure sale and to recognize such purchaser as the
Landlord under this Lease. In the event the lien of the deed of trust securing
the loan from a Lender to Landlord is prior and paramount to the Lease, this
Lease shall nonetheless continue in full force and effect for the remainder of
the unexpired term hereof, at the same rental herein reserved and upon all the
other terms, conditions and covenants herein contained.
28. HOLDING OVER Any holding over by Tenant after expiration or other
termination of the term of this Lease with the written consent of Landlord
delivered to Tenant shall not constitute a renewal or extension of the Lease or
give Tenant any rights in or to the leased Premises except as expressly provided
in this Lease. Any holding over after the expiration or other termination of the
term of this Lease, with the consent of Landlord, shall be construed to be a
tenancy from month to month, on the same terms and conditions herein specified
insofar as applicable except that the monthly Basic Rent shall be increased to
an amount equal to one hundred fifty (150%) percent of the monthly Basic Rent
required during the last month of the Lease term.
page 6 of 8
29. CERTIFICATE OF ESTOPPEL Either party shall at any time upon not less than
ten (10) days' prior written notice from the other party execute, acknowledge
and deliver to the requesting party a statement in writing (i) certifying 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) and the date to which the rent and other charges
are paid in advance, if any, and (ii) acknowledging that there are not, to the
best of such party's knowledge, and any uncured defaults on the part of the
other party hereunder, or specifying such defaults, if any, are claimed. Any
such statement may be conclusively relied upon by any prospective purchaser or
encumbrancer of the Premises. A Tenant's failure to delivery such statement
within such time shall be conclusive upon Tenant that this Lease is in full
force and effect, without modification except as may be represented by Landlord;
that there are no uncured defaults in Landlord's performance, and that not more
than one month's rent has been paid in advance.
30. CONSTRUCTION CHANGES It is understood that the description of the Premises
and the location of ductwork, plumbing and other facilities therein are subject
to such minor changes as Landlord or Landlord's architect determines to be
desirable in the course of construction of the Premises, and no such changes, or
any changes in plans for any other portions of the Complex shall affect this
Lease or entitle Tenant to any reduction of rent hereunder or result in any
liability of Landlord to Tenant. Landlord does not guarantee the accuracy of any
drawings supplied to Tenant and verification of the accuracy of such drawings
rests with Tenant.
31. RIGHT OF LANDLORD TO PERFORM All terms, covenants and conditions of this
Lease to be performed or observed by Tenant shall be performed or observed by
Tenant at Tenant's sole cost and expense and without any reduction of rent. If
Tenant shall fail to pay any sum of money, or other rent, required to be paid by
it hereunder of shall fail to perform any other term or covenant hereunder on
its part to be performed, and such failure shall continue for five (5) days
after written notice thereof by Landlord. Landlord, without waiving or releasing
Tenant from any obligations of Tenant hereunder, may, but shall not be obligated
to, make any such payment or perform any such other term or covenant on Tenant's
part to be performed. All sums so paid by Landlord and all necessary costs of
such performance by Landlord together with interest thereon at the rate of the
prime rate of interest per annum as quoted by the Bank of America from the date
of such payment or performance by Landlord, shall be paid (and Tenant covenants
to make such payment) to Landlord on demand by Landlord, and Landlord shall have
(in addition to any other right or remedy of Landlord) the same rights and
remedies in the event of nonpayment by Tenant in the case of failure by Tenant
in the payment of rent hereunder.
32. ATTORNEY'S FEES.
(A) In the event that either Landlord or Tenant should bring suit for the
possession of the Premises, for the recovery of any sum due under this Lease, or
because of the breach of any provision of this Lease, or for any other relief
against the other party hereunder, then all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing party therein shall be
paid by the other party, which obligation on the part of the other party shall
be deemed to have accrued on the date of the commencement of such action and
shall be enforceable whether or not the action is prosecuted to judgement.
(B) Should Landlord be named as a defendant in any suit brought against Tenant
in connection with or arising out of Tenant's occupancy hereunder, Tenant shall
pay to Landlord its costs and expenses incurred in such suit, including a
reasonable attorney's fee.
33. WAIVER The waiver by either party of the other party's failure to perform
or observe any term, covenant or condition herein contained to be performed or
observed by such wavering party shall not be deemed to be a waiver of such term,
covenant or condition or of any subsequent failure of the party failing to
perform or observe the same or any other such term, covenant or condition
therein contained, and no custom or practice which may develop between the
parties hereto during the term hereof shall be deemed a waiver of, or in any way
affect, the right of either party to insist upon performance and observance by
the other party in strict accordance with the terms hereof.
34. NOTICES All notices, demands, requests, advices or designations which may
be or are required to be given by either party to the other hereunder shall be
in writing. All notices, demands, requests, advices or designations by Landlord
to Tenant shall be sufficiently given, made or delivered if personally served on
Tenant by leaving the same at the Premises or if sent by United States certified
or registered mail, postage prepaid, addressed to Tenant at the Premises. All
notices demands, requests, advices or designations by Tenant to Landlord shall
be sent by the United States certified or registered mail, postage prepaid,
addressed to Landlord at its offices at
Xxxxx/Xxxxxxxxx, 0000 Xxxxxxx Xxxxxxx Xxxx., Xxxxx 000, Xxxxx Xxxxx, XX 00000.
-----------------------------------------------------------------------------
Each notice, request, demand, advice or designation referred to in this
paragraph shall be deemed received on the date of the personal service or
mailing thereof in the manner herein provided, as the case may be.
35. EXAMINATION OF LEASE Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option for a lease,
and this instrument is not effective as a lease or otherwise until its execution
and delivery by both Landlord and Tenant.
36. DEFAULT BY LANDLORD Landlord shall not be in default unless Landlord fails
to perform obligations required of Landlord within a reasonable time, but in no
event earlier than thirty (30) days after written notice by Tenant to Landlord
and to the holder of any first mortgage or deed of trust covering the Premises
whose name and address shall have heretofore been furnished to Tenant in
writing, specifying wherein Landlord has failed to perform such obligations;
provided, however, that if the nature of Landlord's obligations is such that
more than thirty (30) days are required for performance, then Landlord shall not
be in default if Landlord commences performance within such thirty (30) day
period and thereafter diligently prosecutes the same to completion.
37. CORPORATE AUTHORITY If Tenant is a corporation, (or a partnership) each
individual executing this Lease on behalf of said corporation (or partnership)
represents and warrants that he is duly authorized to execute and deliver this
Lease on behalf of said corporation (or partnership) in accordance with the by-
laws of said corporation (or partnership in accordance with the partnership
agreement) and that this Lease is binding upon said corporation (or partnership)
in accordance with its terms. If Tenant is a corporation, Tenant shall, within
thirty (30) days after execution of this Lease, deliver to Landlord a certified
copy of the resolution of the Board of Directors of said corporation authorizing
or ratifying the execution of this Lease.
39. LIMITATION OF LIABILITY In consideration of the benefits accruing
hereunder, Tenant and all successors and assigns covenant and agree that, in the
event of any actual or alleged failure, breach or default hereunder by Landlord:
(i) the sole and exclusive remedy shall be against Landlord's assets;
(ii) no partner of Landlord shall be sued or named as party in any suit or
action (except as may be necessary to secure jurisdiction of the
partnership)
(iii) no service of process shall be made against any partner of Landlord
(except as may be necessary to secure jurisdiction of the partnership)
(iv) no partner of Landlord shall be required to answer or otherwise plead to
any service of process:
(v) no judgement will be taken against any partner of Landlord;
(vi) any judgement taken against any partner of Landlord may be vacated and set
aside at any time without hearing:
(vii) no writ of execution will ever be levied against the assets of any
partner of Landlord;
(viii) these covenants and agreements are enforceable by both Landlord and also
by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements shall be
applicable to any covenant or agreement either expressly contained in this Lease
or imposed by statute or at common law.
page 7 of 8
40. MISCELLANEOUS AND GENERAL PROVISIONS
a. Tenant shall not, without the written consent of Landlord, use the name of
the building for any purpose other than as the address of the business
conducted by Tenant in the Premises.
b. This Lease shall in all respects be governed by and construed in
accordance with the laws of the State of California. If any provision of this
Lease shall be invalid, unenforceable or ineffective for any reason
whatsoever, all other provisions hereof shall be and remain in full force and
effect.
c. The term "Premises" includes the space leased hereby and any improvements
now or hereafter installed therein or attached thereto. The term "Landlord"
or any pronoun used in place thereof includes the plural as well as the
singular and the successors and assigns of Landlord. The term "Tenant" or any
pronoun used in place thereof includes the plural as well as the singular and
individuals, firms, associations, partnerships and corporations, and their
and each of their respective heirs, executors, administrators, successors and
permitted assigns.
The term "person" includes the plural as well as the singular and
individuals, firms, associations, partnerships and corporations. Words used
in any gender include other genders. If there be more than one Tenant the
obligations of Tenant hereunder are joint and several. The paragraph headings
of this Lease are for convenience of reference only and shall have no effect
upon the construction or interpretation of any provisions hereof.
d. Time is of the essence of this Lease and of each and all of its
provisions.
e. At the expiration or earlier termination of this Lease, Tenant shall
execute, acknowledge and deliver to Landlord, within ten (10) days after
written demand from Landlord to Tenant, any quitclaim deed or other document
required by any reputable title company, licensed to operate in the State of
California, to remove the cloud or encumbrance created by this Lease from the
real property of which Tenant's Premises are a part.
f. This instrument along with any exhibit and attachments hereto constitutes
the agreement between Landlord and Tenant relative to the Premises and this
agreement and the exhibits and attachments may be altered, amended or revoked
only by an instrument in writing signed by both Landlord and Tenant. Landlord
and Tenant agree hereby that all prior or contemporaneous oral agreements
between and among themselves and their agents or representatives relative to
the leasing of the Premises are merged in or revoked by this agreement.
g. Neither Landlord nor Tenant shall record this Lease or a short form
memorandum hereof without the consent of the other.
h. Tenant further agrees to execute any amendments required by a lender to
enable Landlord to obtain financing, so long as Tenant's rights hereunder are
not substantially affected.
i. Paragraphs 43 through 48 are added hereto and are included as a
-- --
part of this Lease.
j. Clauses, plats and riders, if any, signed by Landlord and Tenant and
endorsed on or affixed to this Lease are a part hereof.
k. Tenant covenants and agrees that no diminution or shutting off of light,
air or view by any structure which may be hereafter erected (whether or not
by Landlord) shall in any way affect his Lease, entitle Tenant to any
reduction of rent hereunder or result in any liability of Landlord or Tenant.
41. BROKERS Tenant warrants that it had dealings with only the following real
estate brokers or agents in connection with the negotiation of this Lease: none
----
-------------------------------------------------------------------------------
and that it knows of no other real estate broker or agent who is entitled to a
commission in connection with this Lease.
42. SIGNS No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside of
the Premises or any exterior windows of the Premises without the written consent
of Landlord first had and obtained and Landlord shall have the right to remove
any such sign, placard, picture, advertisement, name or notice to and at the
expense of Tenant. If Tenant is allowed to print or affix or in any way place a
sign in, on or about the Premises, upon expiration or other sooner termination
of this Lease, Tenant at Tenant's sole cost and expense shall both remove such
sign and repair all damage in such a manner as to restore all aspects of the
appearance of the Premises to the condition prior to the placement of said sign.
All approved signs or lettering on outside doors shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved of by
Landlord.
Tenant shall not place anything or allow anything to be placed near the glass
of any window, door partition or wall which may appear unsightly from outside
the Premises.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this Lease
as of the day and year last written below.
LANDLORD: TENANT:
XXXX XXXXXXXXX SEPARATE PROPERTY TRUST FIRST VIRTUAL CORPORATION
a California Corporation
By /s/ Xxxx Xxxxxxxxx By /s/ M. Rosetta
-------------------------- ---------------------------------
Xxxx Xxxxxxxxx, Trustee
Dated:(Illegible) Title Founding Partner
------------- ------------------------------
XXXXXXX X. XXXXX SEPARATE PROPERTY TRUST
By /s/ Xxxxxxx X. Xxxxx Type or Print Name M. Rosetta
------------------------- -----------------
Xxxxxxx X. Xxxxx, Trustee
Dated:(Illegible) Dated: 7-20-95
------------- ---------------------
page 8 of 8
Paragraphs 43 through 48 to Lease Agreement Dated July 19, 1995, By and Between
Xxxx Xxxxxxxxx and Xxxxxxx X. Xxxxx Separate Property Trusts, as Landlord, and
First Virtual Corporation, a California corporation, as Tenant for 12,690+
Square Feet of Space Located at 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxx,
Xxxxxxxxxx.
43. BASIC RENT: In accordance with Paragraph 4A herein, the total aggregate sum
----------
of FOUR HUNDRED EIGHTY SIX THOUSAND SIX HUNDRED FORTY ONE AND 03/100 DOLLARS
($486,641.03), shall be payable as follows:
On August 15, 1995, the sum of SIX THOUSAND NINE HUNDRED FIFTY NINE AND
03/100 DOLLARS ($6,959.03) shall be due, representing the rental for the period
August 15, 1995 through August 31, 1995.
On September 1, 1995, the sum of TWELVE THOUSAND SIX HUNDRED NINETY AND
NO/100 DOLLARS ($12,690.00) shall be due, and a like sum due on the first day of
each month thereafter, through and including August 1, 1996.
On September 1, 1996, the sum of THIRTEEN THOUSAND THREE HUNDRED TWENTY
FOUR AND 50/100 DOLLARS ($13,324.50) shall be due, and a like sum due on the
first day of each month thereafter, through and including August 1, 1997.
On September 1, 1997, the sum of THIRTEEN THOUSAND NINE HUNDRED FIFTY NINE
AND NO/100 DOLLARS ($13,959.00) shall be due, and a like sum due on the first
day of each month thereafter, through and including August 1, 1998; or until the
entire aggregate sum of FOUR HUNDRED EIGHTY SIX THOUSAND SIX HUNDRED FORTY ONE
AND 03/100 DOLLARS ($486,641.03) has been paid.
44. EARLY ENTRY: Tenant and its agents and contractors shall be permitted to
-----------
enter the Premises prior to the Commencement Date for the purpose of Installing
at Tenant's sole cost and expense, Tenant's trade fixtures and equipment,
telephone equipment, security systems and cabling for computers. Such entry
shall be subject to all of the terms and conditions of this Lease, except that
Tenant shall not be required to pay any Rent on account thereof. Any entry or
installation work by Tenant and its agents in the Premises pursuant to this
Paragraph 44 shall (i) be undertaken at Tenant's sole risk, (ii) not interfere
---------
with or delay Landlord's work in the Premises (if any) and (iii) not be deemed
occupancy or possession of the Premises for purposes of the Lease. Tenant shall
indemnify, defend, and hold Landlord harmless from any and all loss, damage,
liability, expense (including reasonable attorney's fees), claim or demand of
whatsoever character, direct or consequential, including, but without limiting
thereby the generality of the foregoing, injury to or death of persons and
damage to or loss of property arising out of the exercise by Tenant of any early
entry right granted hereunder. In the event Tenant's work in said Premises
delays the completion of the interior improvements to be provided by Landlord,
if any, or in the event Tenant has not completed construction of it's interior
improvements by the scheduled Commencement Date, it is agreed between the
parties that this Lease will commence on the scheduled Commencement Date of
August 15, 1995 regardless of the construction status of said interior
improvements completed or to be completed by Tenant or Landlord.
45. "AS-IS" BASIS: It is hereby agreed that the Premises leased hereunder is
------------
leased strictly on an "as-is" basis and in its present condition, and in the
configuration as shown on Exhibit B attached hereto, and by reference made a
----------
part hereof. It is specifically agreed between the parties that Landlord shall
not be required to make, nor be responsible for any cost, in connection with any
repair, restoration, and/or improvement to the Premises in order for this Lease
to commence, or thereafter, throughout the Term of this Lease. Landlord makes no
warranty or representation of any kind or nature whatsoever as to the condition
or repair of the Premises, nor as to the use or occupancy which may be made
thereof.
46. CONSENT: Whenever the consent of one party to the other is required
-------
hereunder, such consent shall not be unreasonably withheld.
9 Initial: (illegible)
----------------
Title 22 of the California Administrative Code, Division 4, Chapter 30 (ii)
"hazardous waste" pursuant to the Federal Resource Conservation and Recovery
Act, Section 42 U.S.C. Section 6901 et. seq., (iii) listed or defined as a
"hazardous substance" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq. (42 U.S.C.
Section 9601), (iv) petroleum or any derivative of petroleum, or (v) asbestos.
Subject to the terms of this Paragraph 47, Tenant shall have no obligation to
"clean up", reimburse, release, indemnify, or defend Landlord with respect to
any Hazardous Materials or wastes which Tenant (prior to and during the term of
the Lease) or other parties on the Property or Complex, as described below,
(during the term of this Lease) did not store, dispose, or transport in, use, or
cause to be on the Property or which Tenant, its agents, employees, contractors,
invitees or its future subtenants and/or assignees (if any) (during the Term of
this Lease), did not store, dispose, or transport in, use or cause to be on the
Complex in violation of applicable law.
Tenant shall be 100 percent liable and responsible for: (i) any and all
"investigation and cleanup" of said Hazardous Materials contamination which
Tenant, its agents, employees, contractors, invitees or its future subtenants
and/or assignees (if any), or other parties on the Property, does store,
dispose, or transport in, use or cause to be on the Property, and which Tenant,
its agents, employees, contractors, invitees or its future subtenants and/or
assignees (if any) does store, dispose, or transport in, use or cause to be on
the Complex and (ii) any claims, including third party claims, resulting from
such Hazardous Materials contamination. Tenant shall indemnify Landlord and hold
Landlord harmless from any liabilities, demands, costs, expenses and damages,
including, without limitation, attorney fees incurred as a result of any claims
resulting from such Hazardous Materials contamination.
Tenant also agrees not to use or dispose of any Hazardous Materials on the
Property or the Complex without first obtaining Landlord's written consent.
Tenant agrees to complete compliance with governmental regulations regarding the
use or removal or remediation of Hazardous Materials used, stored, disposed of,
transported or caused to be on the Property or the Complex as stated above, and
prior to the termination of said Lease Tenant agrees to follow the proper
closure procedures and will obtain a clearance from the local fire department
and/or the appropriate governing agency. If Tenant uses Hazardous Materials,
Tenant also agrees to install, at Tenant's expense, such Hazardous Materials
monitoring devices as Landlord deems reasonably necessary. It is agreed that the
Tenant's responsibilities related to Hazardous Materials will survive the
termination date of the Lease and that Landlord may obtain specific performance
of Tenant's responsibilities under this Paragraph 47.
48. TERMINATION OF PREVIOUS LEASE UPON COMMENCEMENT OF THIS LEASE: It is
---------------------------------------------------------------
understood that Tenant is currently occupying approximately 4,852 (plus or
minus) square feet of space located at 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx
Xxxxx, Xxxxxxxxxx, leased under separate Lease Agreement dated February 1, 1994
between Landlord and Tenant. It is therefore agreed that upon commencement of
this Lease Agreement, said February 1, 1994 Lease Agreement shall terminate and
this Lease Agreement shall be considered the only Lease Agreement between the
parties for the Premises leased hereunder. Tenant also agrees that, upon
termination of said 4,832 (plus or minus) square fact of space, Tenant shall, if
so requested by Landlord, restore all or part of the Premises, at Landlord's
sole discretion, pursuant to Paragraph 8 ("Acceptance and Surrender of
Premises") of said February 1, 1994 Lease Agreement.
Initial: illegible
-------------
[MAP APPEARS HERE]
LEASE AGREEMENT DATED JULY 19, 1995 BY AND BETWEEN XXXX XXXXXXXXX AND XXXXXXX X.
XXXXX SEPARATE PROPERTY TRUSTS, AS LANDLORD, AND FIRST VIRTUAL CORPORATION, AS
TENANT.
AMENDMENT NO. 1
TO LEASE
THIS AMENDMENT NO. 1 is made and entered into this 7th day of November, 1997,
by and between XXXX XXXXXXXXX, Trustee, or his Successor Trustee UTA dated
7/20/77, of the Xxxx Xxxxxxxxx Survivor's Trust ("XXXX XXXXXXXXX SURVIVOR'S
TRUST") (previously known as the "Xxxx Xxxxxxxxx Separate Property Trust") as
amended, and XXXXXXX X. XXXXX, Trustee, or his Successor Trustee UTA dated
7/20/77, of the Xxxxxxx X. Xxxxx Separate Property Trust ("XXXXXXX X. XXXXX
SEPARATE PROPERTY TRUST") as amended, collectively as LANDLORD, and FIRST
VIRTUAL CORPORATION, a Delaware corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated July 19, 1995 Landlord leased to Tenant
approximately 12,690+ square feet of that certain 48,000+ square foot building
located at 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx, the details
of which are more particularly set forth in said July 19, 1995 Lease Agreement,
and
B. WHEREAS, said Lease was amended by Letter Agreement dated November 6,
1997, whereby Landlord consented to Tenant's assignment of said Lease from First
Virtual Corporation, a California corporation to First Virtual Corporation, a
Delaware corporation, and,
C. WHEREAS, it is now the desire of the parties hereto to amend the Lease by
adding a Co-terminous paragraph and a Cross Default paragraph to said Lease
Agreement as hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
l. LEASE TERMS CO-TERMINOUS: It is acknowledged that (i) concurrently with the
------------------------
execution of this Amendment, Landlord and Tenant are also executing a separate
Lease Agreement dated November 7, 1997 (hereinafter referred to as the "New
Lease") affecting property located at 0000 Xxxxx Xxxx., Xxxxx 000, Xxxxx Xxxxx,
Xxxxxxxxxx and (ii) it is the intention of the parties that the term of this
Lease be co-terminous with the term of the New Lease such that the terms of both
leases, expire on the same date; provided, however, the termination of this
Lease resulting from the terms and conditions stated under Paragraph 22
"Bankruptcy and Default" (subject to Landlord's option as stated in the
respective leases, "Cross Default" Paragraph) or Paragraph 24 "Destruction" or
Paragraph 25 "Eminent Domain" shall not result in a termination of the New Lease
unless Landlord elects, at its sole and absolute discretion, to terminate either
or both of the leases.
2. CROSS DEFAULT: As a material part of the consideration for the execution of
-------------
the New Lease by Landlord, it is agreed between Landlord and Tenant that a
default under this Lease, or a default under said New Lease may, at the option
of Landlord, be considered a default under both leases, in which event Landlord
shall be entitled (but in no event required) to apply all rights and remedies of
Landlord under the terms of one lease to both leases including, but not limited
to, the right to terminate one or both of said leases by reason of a
Initial: (Illegible)
-----------
PSII-3
default under said New Lease or hereunder.
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and conditions of said
July 19, 1995 Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment No. 1 to
Lease as of the day and year last written below.
LANDLORD: TENANT:
XXXX XXXXXXXXX SURVIVOR'S FIRST VIRTUAL CORPORATION
TRUST a Delaware corporation
By /s/ Xxxx Xxxxxxxxx By /s/ Xxxxx Xxxxxxx
------------------ ------------------------
Xxxx Xxxxxxxxx, Trustee
Date: 11/17/97 XXXXX XXXXXXX
-------- ----------------------------
Print or Type Name
XXXXXXX X. XXXXX SEPARATE Title: Facilities Operations
----------------------
PROPERTY TRUST
By /s/ Xxxxxxx X. Xxxxx Date: November 13, 1997
-------------------- ---------------------
Xxxxxxx X. Xxxxx, Trustee
Date: 11/17/97
--------
Initial:
-----
Park Sq. II-3
AMENDMENT NO. 2
TO LEASE
THIS AMENDMENT NO. 2 is made and entered into this 2nd day of April, 1998, by
and between XXXX XXXXXXXXX, Trustee, or his Successor Trustee UTA dated 7/20/77
(XXXX XXXXXXXXX SURVIVOR'S TRUST) (previously known as the "Xxxx Xxxxxxxxx
Separate Property Trust") as amended, and XXXXXXX X. XXXXX, Trustee, or his
Successor Trustee UTA dated 7/20/77 (XXXXXXX X. XXXXX SEPARATE PROPERTY TRUST)
as amended, collectively as LANDLORD, and FIRST VIRTUAL CORPORATION, a Delaware
corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated July 19, 1995 Landlord leased to
Tenant approximately 12,690+ square feet of that certain 48,000+ square foot
building located at 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx, the
details of which are more particularly set forth in said July 19, 1995 Lease
Agreement, and
B. WHEREAS, said Lease was amended by Letter Agreement dated November 6,
1997, whereby Landlord consented to Tenant's assignment of said Lease from First
Virtual Corporation, a California corporation to First Virtual Corporation, a
Delaware corporation, and,
C. WHEREAS, said Lease was amended by Amendment No. 1 dated November 7,
1997 which added a Co-terminous paragraph and a Cross-default paragraph as
related to premises leased by Tenant from Landlord at 0000 Xxxxx Xxxx., Xxxxx
Xxxxx, Xxxxxxxxxx, and
D. WHEREAS, it is now the desire of the parties hereto to amend the Lease
by (i) increasing the square footage of the Leased Premises by 9,696+ square
feet effective May 1, 1998, (ii) increasing the square footage of the Leased
Premises by 2,561+ square feet effective December 1, 1998, (iii) extending the
Lease Term for a period of four years and eight months, (iv) amending the Basic
Rent schedule and Aggregate Rent accordingly, (v) increasing the Security
Deposit required under the Lease, (vi) increasing Tenant's non-exclusive parking
spaces, (vii) amending the Management Fee charged to Tenant, (viii) amending
Lease Paragraph 19 ("Assignment and Subletting"), (ix) replacing Lease
Paragraphs 39 ("Limitation of Liability") and 47 ("Hazardous Materials"), (x)
deleting Paragraphs 1 ("Lease Terms Co-terminous") and 2 ("Cross Default") to
Amendment No. 1 dated November 7, 1997, and (xi) adding a paragraph ("Authority
to Execute") to said Lease Agreement as hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
1. INCREASED PREMISES.
------------------
A. Phase I Increased Premises. Effective May 1, 1998, the size of the Leased
--------------------------
Premises will be increased by 9,696+ square feet (the "Phase I Increased
Premises"), or from 12,690+ square feet to 22,386+ square feet of space. Total
said Premises are more particularly shown within the area outlined in Orange on
Exhibit A. The entire parcel, of which the Leased Premises is a part, is shown
---------
within the area outlined in Green on Exhibit A. The Phase I Increased Space is
---------
leased on an "as-is" basis, in its present condition and configuration, as set
forth in Blue on Exhibit B attached hereto, with the entire interior leased
---------
Premises shown in Orange on Exhibit B.
---------
B. Phase II Increased Premises. Effective December 1, 1998, the size of the
---------------------------
Leased Premises will be increased by 2,561+ square feet (the "Phase II Increased
Premises"), or from 22,386+ square feet to 24,947+ square feet of space. Total
said Premises are more particularly shown within the area outlined in Red on
Exhibit A. The entire parcel, of which the Leased Premises is a part, is shown
---------
within the area outlined in Green on Exhibit A. The Phase II Increased Space is
---------
leased on an "as-is" basis, in its present condition and configuration, as set
forth in Purple on Exhibit
-------
Initial: (illegible)
-------------
Park Sq. II-3
AMENDMENT NO. 3
TO LEASE
THIS AMENDMENT NO. 3 is made and entered into this 27th day of May, 1998, by
and between XXXX XXXXXXXXX, Trustee, or his Successor Trustee UTA dated 7/20/77
(XXXX XXXXXXXXX SURVIVOR'S TRUST) (previously known as the "Xxxx Xxxxxxxxx
Separate Property Trust") as amended, and XXXXXXX X. XXXXX, Trustee, or his
Successor Trustee UTA dated 7/20/77 (XXXXXXX X. XXXXX SEPARATE PROPERTY TRUST)
as amended, collectively as LANDLORD, and FIRST VIRTUAL CORPORATION, a Delaware
corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated July 19, 1995 Landlord leased to Tenant
approximately 12,690+ square feet of that certain 48,000+ square foot building
located at 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx, the details
of which are more particularly set forth in said July 19, 1995 Lease Agreement,
and
B. WHEREAS, said Lease was amended by Letter Agreement dated November 6,
1997, whereby Landlord consented to Tenant's assignment of said Lease from First
Virtual Corporation, a California corporation to First Virtual Corporation, a
Delaware corporation, and,
C. WHEREAS, said Lease was amended by Amendment No. 1 dated November 7, 1997
which added a Co-terminous paragraph and a Cross-default paragraph as related to
premises leased by Tenant from Landlord at 0000 Xxxxx Xxxx., Xxxxx Xxxxx,
Xxxxxxxxxx, and
D. WHEREAS, said Lease was amended by Amendment No. 2 dated April 2, 1998
which (i) increased the square footage of the Leased Premises by 9,696+ square
feet effective May 1, 1998 ("Phase I Increased Premises"), (ii) increased the
square footage of the Leased Premises by 2,561+ square feet effective December
1, 1998 ("Phase II Increased Premises"), (iii) extended the Lease Term for a
period of four years and eight months, (iv) amended the Basic Rent schedule and
Aggregate Rent accordingly, (v) increased the Security Deposit required under
the Lease, (vi) increased Tenant's non-exclusive parking spaces, (vii) amended
the Management Fee charged to Tenant, (viii) amended Lease Paragraph 19
("Assignment and Subletting"), (ix) replaced Lease Paragraphs 39 ("Limitation of
Liability") and 47 ("Hazardous Materials"), (x) deleted Paragraphs 1 ("Lease
Terms Co-terminous") and 2 ("Cross Default") to Amendment No. 1 dated November
7, 1997, and (xi) added a paragraph ("Authority to Execute") to said Lease, and
E. WHEREAS, it is now the desire of the parties hereto to amend the Lease by
(i) deleting Paragraph 1.B. of Amendment No. 2 and increasing the former "Phase
II Increased Premises" by increasing the square footage of the Leased Premises
by a total of 25,614+ square feet effective December l, 1998 to reflect Tenant
leasing one hundred percent of the Building, (ii) extending the Lease Term for a
period of two years and seven months, (iii) amending the Basic Rent schedule and
Aggregate Rent accordingly, (iv) increasing the Security Deposit required under
the Lease, (v) increasing Tenant's non-exclusive parking spaces, (vi) amending
Lease Paragraph 19 ("Assignment and Subletting"), and (vii) replacing Lease
Paragraphs 7 ("Expenses of Operation, Management, and Maintenance of the Common
Areas of the Complex and Building in which the Premises are Located"), 10
("Tenant Maintenance") and 11 ("Utilities of the Building in which the Premises
are Located") to said Lease Agreement as hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
1. PHASE II INCREASED PREMISES: Paragraph 1.B. of Amendment No. 2 dated April
---------------------------
2, 1998 ("Phase II Increased Premises") shall be deleted in its entirety and
replaced with the following:
"Effective December 1, 1998, the size of the Leased Premises will be increased
by 25,614+
Initial:
-------
Park Sq. II-3
square feet (the "Phase II Increased Premises"), or from 22,386+ square feet to
48,000+ square feet of space (one hundred percent of the Building). Total said
Premises are more particularly shown within the area outlined in Red on Exhibit
-------
A. The entire parcel, of which the Leased Premises is a part, is shown within
-
the area outlined in Green on Exhibit A. The Phase II Increased Space is leased
---------
on an "as-is" basis, in its present condition and configuration, as set forth in
Purple on Exhibit B attached hereto, with the entire interior leased Premises
---------
shown in Red on Exhibit B.
---------
It is understood between the parties that the Commencement Date for the Phase
II Increased Premises is the day immediately following the scheduled termination
date of a lease agreement between Landlord and 3Com Corporation ("3Com"). In the
event (i) 3Com fails to timely vacate the Phase II Increased Premises and
surrender same to Landlord free and clear of its occupancy by November 30, 1998
or (ii) Landlord is unable to deliver the Phase II Increased Premises on
December 1, 1998, Tenant's occupancy date for the Phase II Increased Premises
shall commence on the date immediately following the actual termination date of
the 3Com Lease."
2. TERM OF LEASE: It is agreed between the parties that the Term of said
-------------
Lease Agreement shall be extended for an additional two (2) year seven (7) month
period, and the Lease Termination Date shall be changed from April 30, 2003 to
November 30, 2005.
3. BASIC RENT SCHEDULE: The Basic Rent schedule, as shown in Paragraph 4(A)
-------------------
of the Lease Agreement, shall be amended as follows:
On December 1, 1998, the sum of NINETY SIX THOUSAND AND NO/100 DOLLARS
($96,000.00) shall be due, and a like sum due on the first day of each month
thereafter, through and including April 1, 1999.
On May 1, 1999, the sum of ONE HUNDRED THOUSAND EIGHT HUNDRED AND NO/100
DOLLARS ($100,800.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including April 1, 2000.
On May 1,2000, the sum of ONE HUNDRED FIVE THOUSAND SIX HUNDRED AND NO/100
DOLLARS ($105,600.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including April 1, 2001.
On May 1, 2001, the sum of ONE HUNDRED TEN THOUSAND FOUR HUNDRED AND NO/100
DOLLARS ($110,400.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including April 1, 2002.
On May 1, 2002, the sum of ONE HUNDRED FIFTEEN THOUSAND TWO HUNDRED AND
NO/100 DOLLARS ($115,200.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including April 1, 2003.
On May 1, 2003, the sum of ONE HUNDRED TWENTY THOUSAND AND NO/100 DOLLARS
($120,000.00) shall be due, and a like sum due on the first day of each month
thereafter, through and including April 1, 2004.
On May 1, 2004, the sum of ONE HUNDRED TWENTY FOUR THOUSAND EIGHT HUNDRED
AND NO/100 DOLLARS ($124,800.00) shall be due, and a like sum due on the first
day of each month thereafter, through and including April 1, 2005.
On May 1, 2005, the sum of ONE HUNDRED TWENTY NINE THOUSAND SIX HUNDRED AND
NO/100 DOLLARS ($129,600.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including November 1, 2005.
As a result of the increase in square feet leased, the Aggregate Rental shall
be increased by $6,565,054.00, or from $3,642,271.03 to $10,207,325.03.
4. INCREASED PARKING: Effective December 1, 1998, Tenant's nonexclusive
-----------------
parking spaces shall be increased by 102 spaces or from 90 spaces to 192 spaces.
5. SECURITY DEPOSIT: Tenant's Security Deposit shall be increased by
----------------
$139,454.40, or from $119,745.60 to $259,200.00, due on December 1, 1998.
Initial:
-------
Park Sq. II-3
6. ASSIGNMENT AND SUBLETTING: Lease Paragraph 19 ("Assignment and
-------------------------
Subletting") shall be amended to include the following language:
"Notwithstanding the foregoing, Landlord and Tenant agree that it shall not
be unreasonable for Landlord to refuse to consent to a proposed assignment,
sublease or other transfer ("Proposed Transfer") if the Premises or any other
portion of the Property would become subject to additional or different
Government Requirements as a direct or indirect consequence of the Proposed
Transfer and/or the Proposed Transferee's use and occupancy of the Premises and
the Property. However, Landlord may, in its sole discretion, consent to such a
Proposed Transfer where Landlord is indemnified by Tenant and (i) Subtenant or
(ii) Assignee, in form and substance satisfactory to Landlord's counsel, by
Tenant and/or the Proposed Transferee from and against any and all costs,
expenses, obligations and liability arising out of the Proposed Transfer and/or
the Proposed Transferee's use and occupancy of the Premises and the Property."
7. EXPENSES OF OPERATION, MANAGEMENT, AND MAINTENANCE OF THE COMMON AREAS OF
--------------------------------------------------------------------------
THE COMPLEX AND BUILDING IN WHICH THE PREMISES ARE LOCATED: Effective December
----------------------------------------------------------
1, 1998, Lease Paragraph 7 ("Expenses of Operation, Management, and Maintenance
of the Common Areas of the Complex and Building in Which the Premises Are
Located") shall be deleted In its entirety and replaced with the following:
"7. EXPENSES OF OPERATION, MANAGEMENT, AND MAINTENANCE OF THE COMMON
AREAS OF THE COMPLEX. As Additional Rent and in accordance with Paragraph 4D
of this Lease, Tenant shall pay to Landlord Tenant's proportionate share
(calculated on a square footage or other equitable basis as calculated by
Landlord) of all expenses of operation, management, maintenance and repair of
the Common Areas of the Complex including, but not limited to, license,
permit, and inspection fees; security; utility charge associated with exterior
landscaping and lighting (including water and sewer charges); all charges
incurred in the maintenance and replacement of landscaped areas, lakes,
parking lots, sidewalks, driveways; maintenance, repair and replacement of all
fixtures and electrical, mechanical, and plumbing systems; structural elements
and exterior surfaces of the buildings; salaries and employee benefits of
personnel and payroll taxes applicable thereto; supplies, materials, equipment
and tools; the amortized cost of capital expenditures which have the effect of
reducing operating expenses, provided, however, that in the event Landlord
makes such capital improvements, Landlord shall amortize its investment in
said improvements over the useful life thereof (together with interest at the
rate of fifteen percent (15%) per annum on the unamortized balance) as an
operating expense in accordance with standard accounting practices, provided,
that such amortization is not at a rate greater than the reasonably
anticipated savings in the operating expenses.
"Additional Rent" as used herein shall not include Landlord's debt repayments;
interest on charges; expenses directly or indirectly incurred by Landlord for
the benefit of any other tenant; cost for the installation of partitioning or
any other tenant improvements; cost of attracting tenants; depreciation;
interest; or executive salaries."
8. TENANT MAINTENANCE: Effective December l, 1998, Lease Paragraph 10
------------------
("Tenant Maintenance") shall be deleted in its entirety and replaced with the
following:
"10. TENANT MAINTENANCE Tenant shall, at its sole cost and expense, keep
and maintain the Premises (including appurtenances) and every part thereof in
a high standard of maintenance and repair, and in good and sanitary condition.
Tenant's maintenance and repair responsibilities herein referred to include,
but are not limited to, all windows, window frames, plate glass, glazing,
truck doors, plumbing systems (such as water and drain lines, sinks, toilets,
faucets, drains, showers, and water fountains), electrical systems (such as
panels, conduits, outlets, lighting fixtures, lamps, bulbs, tubes, ballasts),
heating and air-conditioning systems (such as compressors, fans, air handlers,
ducts, mixing boxes, thermostats, time clocks, boilers, heaters, supply and
return grills), store fronts, roofs, downspouts, all interior improvements
within the Premises including, but not limited to wall coverings, window
coverings, carpet, floor coverings, partitioning, ceilings, doors (both
interior and exterior), including closing mechanisms, latches, locks,
skylights (if any), automatic fire extinguishing systems, and elevators and
all other interior improvements of any nature whatsoever. Tenant
Initial: (Illegible)
-------------
Park Sq. II-3
agrees to provide carpet xxxxxxx under all rolling chairs or to otherwise be
responsible for wear and tear of the carpet caused by such rolling chairs if
such wear and tear exceeds that caused by normal foot traffic in surrounding
areas. Areas of excessive wear shall be replaced at Tenant's sole expense upon
Lease termination. Tenant hereby waives all rights under, and benefits of,
subsection 1 of Section 1932 and Section 1941 and 1942 of the California Civil
Code and under any similar law, statute or ordinance now or hereafter in
effect."
9. UTILITIES OF THE BUILDING IN WHICH THE PREMISES ARE LOCATED: Effective
-----------------------------------------------------------
December 1, 1998, Lease Paragraph 11 ("Utilities of The Building in Which The
Premises Are Located") shall be deleted in its entirety and replaced with the
following:
"11. UTILITIES Tenant shall pay promptly, as the same become due, all
charges for water, gas, electricity, telephone, telex and other electronic
communications service, sewer service, waste pick-up and any other utilities,
materials or services furnished directly to or used by Tenant on or about the
Premises during the Term of this Lease, including, without limitation, any
temporary or permanent utility surcharge or other exactions whether or not
hereinafter imposed.
Landlord shall not be liable for and Tenant shall not be entitled to any
abatement or reduction of Rent by reason of any interruption or failure of
utility services to the Premises when such interruption or failure is caused
by accident, breakage, repair, strikes, lockouts, or other labor disturbances
or labor disputes of any nature, or by any other cause, similar or dissimilar,
beyond the reasonable control of Landlord."
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and conditions of said
July 19, 1995 Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment No. 3 to
Lease as of the day and year last written below.
LANDLORD: TENANT:
XXXX XXXXXXXXX SURVIVOR'S FIRST VIRTUAL CORPORATION
TRUST a Delaware corporation
By /s/ Xxxx Xxxxxxxxx By /s/ Xxxxx Xxxxxxxxx
----------------------- -------------------
Xxxx Xxxxxxxxx, Trustee
Date: 6/8/98 Xxxxx Xxxxxxxxx
--------------------- -------------------
Print or Type Name
XXXXXXX X. XXXXX SEPARATE Title: President and CEO
PROPERTY TRUST --------------------
By /s/ Xxxxxxx X. Xxxxx Date: June 3, 1998
-------------------- --------------------
Xxxxxxx X. Xxxxx
Date: 6/8/98
---------------------
Initial: R.U.
--------
[MAP APPEARS HERE]
EXHIBIT A TO AMENDMENT NO. 3 DATED MAY 27, 1998 BY AND BETWEEN THE XXXX
---------
ARRILLAGA SURVIVOR'S TRUST AND THE XXXXXXX X. XXXXX SEPARATE PROPERTY TRUST, AS
LANDLORD, AND FIRST VIRTUAL CORPORATION, AS TENANT.
[SITE PLAN]
[MAP APPEARS HERE]
EXHIBIT B TO AMENDMENT NO. 3 DATED MAY 27, 1998 BY AND BETWEEN THE XXXX
---------
ARRILLAGA SURVIVOR'S TRUST AND THE XXXXXXX X. XXXXX SEPARATE PROPERTY TRUST, AS
LANDLORD, AND FIRST VIRTUAL CORPORATION, AS TENANT.
[MAP APPEARS HERE]
EXHIBIT B TO AMENDMENT NO. 3 DATED MAY 27, 1998 BY AND BETWEEN THE XXXX
---------
ARRILLAGA SURVIVOR'S TRUST AND THE XXXXXXX X. XXXXX SEPARATE PROPERTY TRUST, AS
LANDLORD, AND FIRST VIRTUAL CORPORATION, AS TENANT.
Park Sq. II-3
AMENDMENT NO. 4
TO LEASE
THIS AMENDMENT NO. 4 is made and entered into this 4th day of February, 1999,
by and between XXXX XXXXXXXXX, Trustee, or his Successor Trustee UTA dated
7/20/77 (XXXX XXXXXXXXX SURVIVOR'S TRUST) (previously known as the "Xxxx
Xxxxxxxxx Separate Property Trust") as amended, and XXXXXXX X. XXXXX, Trustee,
or his Successor Trustee UTA dated 7/20/77 (XXXXXXX X. XXXXX SEPARATE PROPERTY
TRUST) as amended, collectively as LANDLORD, and XXX.XXX, Inc. a Delaware
corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated July 19, 1995 Landlord leased to Tenant
approximately 12,690+ square feet of that certain 48,000+ square foot building
located at 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx, the details
of which are more particularly set forth in said July 19, 1995 Lease Agreement,
and
B. WHEREAS, said Lease was amended by Letter Agreement dated November 6,
1997, whereby Landlord consented to Tenant's assignment of said Lease from First
Virtual Corporation, a California corporation to First Virtual Corporation, a
Delaware corporation, and
C. WHEREAS, said Lease was amended by Amendment No. 1 dated November 7, 1997
which added a Co-terminous paragraph and a Cross-default paragraph as related to
premises leased by Tenant from Landlord at 0000 Xxxxx Xxxx., Xxxxx Xxxxx,
Xxxxxxxxxx, and
D. WHEREAS, said Lease was amended by Amendment No. 2 dated April 2, 1998
which (i) increased the square footage of the Leased Premises by 9,696+ square
feet effective May 1, 1998 ("Phase I Increased Premises"), (ii) increased the
square footage of the Leased Premises by 2,561+ square feet effective December
1, 1998 ("Phase II Increased Premises"), (iii) extended the Lease Term for a
period of four years and eight months, (iv) amended the Basic Rent schedule and
Aggregate Rent accordingly, (v) increased the Security Deposit required under
the Lease, (vi) increased Tenant's non-exclusive parking spaces, (vii) amended
the Management Fee charged to Tenant, (viii) amended Lease Paragraph 19
("Assignment and Subletting"), (ix) replaced Lease Paragraphs 39 ("Limitation of
Liability") and 47 ("Hazardous Materials"), (x) deleted Paragraphs 1 ("Lease
Terms Co-terminous") and 2 ("Cross Default") to Amendment No. 1 dated November
7, 1997, and (xi) added a paragraph ("Authority to Execute") to said Lease, and
E. WHEREAS, said Lease was amended by Amendment No. 3 dated May 27, 1998
which (i) deleted Paragraph 1.B. of Amendment No. 2 and increased the former
"Phase II Increased Premises" by increased the square footage of the Leased
Premises by a total of 25,614 + square feet effective December 1, 1998 to
reflect Tenant leasing one hundred percent of the Building, (ii) extended the
Lease Term for a period of two years and seven months, (iii) amended the Basic
Rent schedule and Aggregate Rent accordingly, (iv) increased the Security
Deposit required under the Lease, (v) increased Tenant's non-exclusive parking
spaces, (vi) amended Lease Paragraph 19 ("Assignment and Subletting"), and (vii)
replaced Lease Paragraphs 7 ("Expenses of Operation, Management, and Maintenance
of the Common Areas of the Complex and Building in which the Premises are
Located"), 10 ("Tenant Maintenance") and 11 ("Utilities of the Building in which
the Premises are Located"), and
F. WHEREAS, it is now the desire of the parties hereto to amend the Lease by
(i) acknowledging Tenant's name change from First Virtual Corporation, a
Delaware corporation to XXX.XXX, Inc., a Delaware corporation effective July 31,
1998, (ii) reducing the Basic Rent due under the Lease for a six month period
commencing January 1, 1999 and ending June 30, 1999, (iii) extending the Lease
Term by three years and seven months, and (iv) amending the Basic Rent Schedule
and Aggregate Rent under said Lease Agreement as hereinafter set forth.
Initial: (illegible)^^
---------------
Park Sq. II-3
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
1. TENANT NAME CHANGE: Pursuant to information provided to Landlord by
------------------
Tenant, it is acknowledged by Landlord that effective on or about July 31, 1998,
Tenant, "First Virtual Corporation", a Delaware corporation, has changed its'
name by Corporate Resolution to "XXX.XXX, Inc.", a Delaware corporation; the
change in name did not result in a change in ownership structure and for all
intents and purposes all the assets and liabilities of First Virtual Corporation
are now the assets and liabilities of XXX.XXX, Inc., and XXX.XXX, Inc. will be
responsible for the full performance of all terms, covenants, and conditions of
said Lease Agreement from the date of the Lease (July 19, 1995) through the
effective Termination Date of said Lease. In the event there was a change in
ownership or there is not a complete transfer of 100% of the assets and
liabilities from First Virtual Corporation to XXX.XXX, Inc. both companies agree
to be jointly and severally liable for the full terms and conditions of the
Lease Agreement from through the Termination Date of said Lease.
2. TERM OF LEASE: It is agreed between the parties that the Term of said
-------------
Lease Agreement shall be extended for an additional three (3) year seven (7)
month period, and the Lease Termination Date shall be changed from November 30,
2005 to June 30, 2009.
3. BASIC RENT SCHEDULE: As an accommodation to Tenant and in consideration of
-------------------
Tenant extending the Term of the Lease, Landlord has agreed to reduce the Basic
Rent due under the Lease for the period of January 1, 1999 through June 30, 1999
by $40,000.00 per month. The Basic Rent schedule, as shown in Paragraph 4(A) of
the Lease Agreement, shall be amended as follows:
On January 1, 1999, the sum of FIFTY SIX THOUSAND AND NO/100 DOLLARS
($56,000.00) shall be due, and a like sum due on the first day of each month
thereafter, through and including April 1, 1999.
On May 1, 1999, the sum of SIXTY THOUSAND EIGHT HUNDRED AND NO/100 DOLLARS
($60,800.00) shall be due, and a like sum due on the first day of each month
thereafter, through and including June 1, 1999.
On July 1, 1999, the sum of ONE HUNDRED FIVE THOUSAND SIX HUNDRED AND NO/100
DOLLARS ($105,600.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including April 1, 2000.
On May 1, 2000, the sum of ONE HUNDRED THIRTEEN THOUSAND TWO HUNDRED AND
NO/100 DOLLARS ($113,200.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including April 1, 2001.
On May 1, 2001, the sum of ONE HUNDRED TWENTY FOUR THOUSAND EIGHT HUNDRED AND
NO/100 DOLLARS ($124,800.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including April 1, 2003.
On May 1, 2003, the sum of ONE HUNDRED TWENTY SEVEN THOUSAND TWO HUNDRED AND
NO/100 DOLLARS ($127,200.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including April 1, 2004.
On May 1, 2004, the sum of ONE HUNDRED TWENTY NINE THOUSAND SIX HUNDRED AND
NO/100 DOLLARS ($129,600.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including April 1, 2005.
On May 1, 2005, the sum of ONE HUNDRED THIRTY TWO THOUSAND AND NO/100 DOLLARS
($132,000.00) shall be due, and a like sum due on the first day of each month
thereafter, through and including April 1, 2006.
Initial: (Illegible)^^
-------------
Park Sq. II-3
On May 1, 2006, the sum of ONE HUNDRED THIRTY SIX THOUSAND EIGHT HUNDRED AND
NO/100 DOLLARS ($136,800.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including April l, 2007.
On May 1, 2007, the sum of ONE HUNDRED FORTY ONE THOUSAND SIX HUNDRED AND
NO/100 DOLLARS ($141,600.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including April 1, 2008.
On May 1, 2008, the sum of ONE HUNDRED FORTY SIX THOUSAND FOUR HUNDRED AND
NO/100 DOLLARS ($146,400.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including April 1, 2009.
On May l, 2009, the sum of ONE HUNDRED FIFTY ONE THOUSAND TWO HUNDRED AND
NO/100 DOLLARS ($151,200.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including June 1, 2009.
The Aggregate Rental shall be increased by $6,408,000.00, or from
$10,207,325.03 to $16,615,325.03.
4. SECURITY DEPOSIT: Tenant's Security Deposit shall remain $259,200.00.
----------------
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and conditions of said
July 19, 1995 Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment No. 4 to
Lease as of the day and year last written below.
LANDLORD: TENANT:
XXXX XXXXXXXXX XXX.XXX, INC.
SURVIVOR'S TRUST a Delaware corporation
By /s/ Xxxx Xxxxxxxxx By /s/ Xxxxx Xxxxxxxxx
----------------------- ---------------------
Xxxx Xxxxxxxxx, Trustee
Date: 2/24/99 Xxxxx Xxxxxxxxx
-------------------- ---------------------
Print or Type Name
XXXXXXX X. XXXXX SEPARATE Title: Chairman
PROPERTY TRUST ---------------------
By /s/ Xxxxxxx X. Xxxxx Date: 2/23/99
---------------------- -------------
Xxxxxxx X. Xxxxx, Trustee
Date: 2/24/99 Initial: R.U. J.A.
-------- -----------
Park Sq. II-3
B attached hereto, with the entire interior leased Premises shown in Red on
-
Exhibit B.
---------
2. INCREASED PREMISES SUBJECT TO LANDLORD'S OBTAINING TERMINATION AGREEMENT
------------------------------------------------------------------------
WITH CURRENT TENANT FOR CURRENT TENANT'S SPACE: Tenant's Lease of the Phase I
----------------------------------------------
Increased Premises and the Phase II Increased Premises (collectively the
"Increased Premises") is subject to Landlord obtaining from 3Com Corporation
("3Com"), the current tenant occupying the Increased Premises, a Termination
Agreement satisfactory to Landlord on or before April 30, 1998. In the event
Landlord is unable to obtain said satisfactory Agreement on or before April 30,
1998, and/or in the event 3Com fails to timely vacate the Phase I Increased
Premises and surrender same to Landlord free and clear of its occupancy, this
Amendment shall, at Landlord's option: a) be rescinded as relates to both the
Phase I Increased Premises and the Phase II Increased Premises, or b) the
Commencement Date of the Phase I Increased Premises hereof shall be modified to
reflect the date Landlord so obtains said satisfactory Termination Agreement and
receives possession of the Phase I Increased Premises free and clear of 3Com's
occupancy; provided, however, that said period of delay caused by 3Com shall not
extend beyond June 30, 1998. In the event Landlord cannot deliver said Phase I
Increased Premises by June 30, 1998, Paragraphs 1, 5 and 6 of this Amendment No.
2 shall be automatically rescinded and Paragraph 4 shall be amended to reflect
the deletion of the Increased Premises.
In the event 3Com fails to timely vacate the Phase II Increased Premises and
surrender same to Landlord free and clear of its occupancy by November 30, 1998,
the Commencement Date of the Phase II Increased Premises hereof shall be
modified to reflect the date Landlord so obtains said satisfactory Termination
Agreement and receives possession of the Increased Premises free and clear of
3Com's occupancy and Paragraph 4 shall be amended to reflect the change in the
Commencement Date for the Phase II Increased Premises.
3. TERM OF LEASE: It is agreed between the parties that the Term of said
-------------
Lease Agreement shall be extended for an additional four (4) year eight (8)
month period, and the Lease Termination Date shall be changed from August 31,
1998 to April 30, 2003.
4. BASIC RENT SCHEDULE: The Basic Rent schedule, as shown in Paragraph 4(A)
-------------------
of the Lease Agreement, shall be amended as follows:
On May 1, 1998, the sum of THIRTY THREE THOUSAND THREE HUNDRED FIFTY ONE AND
NO/100 DOLLARS ($33,351.00) shall be due, and a like sum due on the first day of
each month thereafter, through and including August 1, 1998.
On September l, 1998, the sum of FORTY FOUR THOUSAND SEVEN HUNDRED SEVENTY TWO
AND NO/100 DOLLARS ($44,772.00) shall be due, and a like sum due on the first
day of each month thereafter, through and including November 1, 1998.
On December 1, 1998, the sum of FORTY NINE THOUSAND EIGHT HUNDRED NINETY FOUR
AND NO/100 DOLLARS ($49,894.00) shall be due, and a like sum due on the first
day of each month thereafter, through and including April 1, 1999.
On May 1, 1999, the sum of FIFTY TWO THOUSAND THREE HUNDRED EIGHTY EIGHT AND
70/100 DOLLARS ($52,388.70) shall be due, and a like sum due on the first day of
each month thereafter, through and including April 1, 2000.
On May 1, 2000, the sum of FIFTY FOUR THOUSAND EIGHT HUNDRED EIGHTY THREE AND
40/100 DOLLARS ($54,883.40) shall be due, and a like sum due on the first day of
each month thereafter, through and including April 1, 2001.
On May 1, 2001, the sum of FIFTY SEVEN THOUSAND THREE HUNDRED SEVENTY EIGHT
AND 10/100 DOLLARS ($57,378.10) shall be due, and a like sum due on the first
day of each month thereafter, through and excluding April 1, 2002.
On May 1, 2002, the sum of FIFTY NINE THOUSAND EIGHT HUNDRED SEVENTY TWO AND
80/100 DOLLARS ($59,872.80) shall be due, and a like sum due on the first day of
each month thereafter, through and including April 1, 2003.
Initial: (illegible)
---------------
Park Sq. II-3
As a result of the increase in square feet leased, the Aggregate Rental shall
be increased by $3,155,630.00, or from $486,641.03 to $3,642,271.03.
5. INCREASED PARKING: Effective May 1, 1998, Tenant's nonexclusive parking
-----------------
spaces shall be increased by 39 spaces, or from 51 spaces to 90 spaces.
Effective December 1, 1998, Tenant's nonexclusive parking spaces shall be
increased by 10 spaces or from 90 spaces to 100 spaces.
6. SECURITY DEPOSIT: Tenant's Security Deposit shall be increased by
----------------
$91,827.60, or from $27,918.00 to $119,745.60, payable upon Tenant's execution
of this Amendment No. 2.
7. MANAGEMENT FEE: Beginning May 1, 1998, Tenant shall pay to Landlord, in
--------------
addition to the Basic Rent and Additional Rent, a fixed monthly management fee
("Management Fee") equal to three percent (3%) of the Basic Rent due for each
month throughout the remaining Lease Term. Tenant shall remain liable for the
five percent (5%) management fee previously charged against Additional Rent
through April 30, 1998.
8. ASSIGNMENT AND SUBLETTING: Lease Paragraph 19 ("Assignment and
-------------------------
Subletting") shall be amended to include the following language:
"Any and all sublease agreement(s) between Tenant and any and all subtenant(s)
(which agreements must be consented to by Landlord, pursuant to the requirements
of this Lease) shall contain the following language:
"If Landlord and Tenant jointly and voluntarily elect, for any reason
whatsoever, to terminate the Master Lease prior to the scheduled Master Lease
termination date, then this Sublease (if then still in effect) shall terminate
concurrently with the termination of the Master Lease. Subtenant expressly
acknowledges and agrees that (1) the voluntary termination of the Master Lease
by Landlord and Tenant and the resulting termination of this Sublease shall
not give Subtenant any right or power to make any legal or equitable claim
against Landlord, including without limitation any claim for interference with
contract or interference with prospective economic advantage, and (2)
Subtenant hereby waives any and all rights it may have under law or at equity
against Landlord to challenge such an early termination of the Sublease, and
unconditionally releases and relieves Landlord, and its officers, directors,
employees and agents, from any and all claims, demands, and/or causes of
action whatsoever (collectively, "Claims"), whether such matters are known or
unknown, latent or apparent, suspected or unsuspected, foreseeable or
unforeseeable, which Subtenant may have arising out of or in connection with
any such early termination of this Sublease. Subtenant knowingly and
intentionally waives any and all protection which is or may be given by
Section 1542 of the California Civil Code which provides as follows: "A
general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with debtor.
The term of this Sublease is therefore subject to early termination.
Subtenant's initials here below evidence (a) Subtenant's consideration of and
agreement to this early termination provision, (b) Subtenant's acknowledgment
that, in determining the net benefits to be derived by Subtenant under the
terms of this Sublease, Subtenant has anticipated the potential for early
termination, and (c) Subtenant's agreement to the general waiver and release
of Claims above.
Initials: Initials:
------------------- -----------------
Subtenant Tenant
In no event will Landlord consent to a sub-sublease of the Premises."
9. LIMITATION OF LIABILITY: Lease Paragraph 39 ("Limitation of Liability")
shall be
Initial: (illegible)
---------------
Park Sq. II-3
deleted and replaced in its entirety by the following:
"39. LIMITATION OF LIABILITY In consideration of the benefits accruing
-----------------------
hereunder, Tenant and all successors and assigns covenant and agree that, in
the event of any actual or alleged failure, breach or default hereunder by
Landlord:
(i) the sole and exclusive remedy shall be against Landlord's interest in the
Premises leased herein;
(ii) no partner of Landlord shall be sued or named as a party in any suit or
action (except as may be necessary to secure jurisdiction of the partnership);
(iii) no service of process shall be made against any partner of Landlord
(except as may be necessary to secure jurisdiction of the partnership);
(iv) no partner of Landlord shall be required to answer or otherwise plead to
any service of process;
(v) no judgment will be taken against any partner of Landlord;
(vi) any judgment taken against any partner of Landlord may be vacated and set
aside at any time without hearing;
(vii) no writ of execution will ever be levied against the assets of any
partner of Landlord;
(viii) these covenants and agreements are enforceable both by Landlord and
also by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements shall be
applicable to any covenant or agreement either expressly contained in this
Lease or imposed by statute or at common law."
10. HAZARDOUS MATERIALS: Lease Paragraph 47 ("Hazardous Materials") shall
be deleted and replaced in its entirety by the following:
"47. HAZARDOUS MATERIALS: Landlord and Tenant agree as follows with respect
-------------------
to the existence or use of "Hazardous Materials" (as defined herein) on, in,
under or about the Premises and real property located beneath said Premises
and the common areas of the Complex (hereinafter collectively referred to as
the "Property"):
A. As used herein, the term "Hazardous Materials" shall mean any material,
waste, chemical, mixture or byproduct which is or hereafter is defined, listed
or designated under Environmental Laws (defined below) as a pollutant, or as a
contaminant, or as a toxic or hazardous substance, waste or material, or any
other unwholesome, hazardous, toxic, biohazardous, or radioactive material,
waste, chemical, mixture or byproduct, or which is listed, regulated or
restricted by any Environmental Law (including, without limitation, petroleum
hydrocarbons or any distillates or derivatives or fractions thereof,
polychlorinated biphenyls, or asbestos). As used herein, the term
"Environmental Laws" shall mean any applicable Federal, State of California or
local government law (including common law), statute, regulation, rule,
ordinance, permit, license, order, requirement, agreement, or approval, or any
determination, judgment, directive, or order of any executive or judicial
authority at any level of Federal, State of California or local government
(whether now existing or subsequently adopted or promulgated) relating to
pollution or the protection of the environment, ecology, natural resources,
or public health and safety.
B. Tenant shall obtain Landlord's written consent, which may be withheld
in Landlord's discretion prior to the occurrence of any Tenant's Hazardous
Materials Activities (defined below); provided, however, that Landlord's
consent shall not be required for normal use in compliance with applicable
Environmental Laws of customary household and office supplies (Tenant shall
first provide Landlord with a list of said materials use), such as mild
cleaners, lubricants and copier toner. As used herein, the term "Tenant's
Hazardous Materials Activities" shall mean any and all use, handling,
generation, storage, disposal, treatment, transportation, discharge, or
emission of any Hazardous Materials on, in, beneath, to, from, at or about the
Property, in connection with Tenant's use of the Property, or by Tenant or by
any of Tenant's agents, employees, contractors, vendors, invitees, visitors or
its future subtenants or assignees. Tenant agrees that any and all Tenant's
Hazardous Materials Activities shall be conducted in strict, full compliance
with applicable Environmental Laws at Tenant's expense,
Initial: (illegible)
---------------
Park Sq. II-3
and shall not result in any contamination of the Property or the environment.
Tenant agrees to provide Landlord with prompt written notice of any spill or
release of Hazardous Materials at the Property during the term of the Lease of
which Tenant becomes aware, and further agrees to provide Landlord with prompt
written notice of any violation of Environmental Laws in connection with
Tenant's Hazardous Materials Activities of which Tenant becomes aware. If
Tenant's Hazardous Materials Activities involve Hazardous Materials other than
normal use of customary household and office supplies, Tenant also agrees at
Tenant's expense: (i) to install such Hazardous Materials monitoring, storage
and containment devices as Landlord reasonably deems necessary (Landlord shall
have no obligation to evaluate the need for any such installation or to
require any such installation); (ii) provide Landlord with a written inventory
of such Hazardous Materials, including an update of same each year upon the
anniversary date of the Commencement Date of the Lease ("Anniversary Date");
and (iii) on each Anniversary Date, to retain a qualified environmental
consultant, acceptable to Landlord, to evaluate whether Tenant is in
compliance with all applicable Environmental Laws with respect to Tenant's
Hazardous Materials Activities. Tenant, at its expense, shall submit to
Landlord a report from such environmental consultant which discusses the
environmental consultant's findings within two (2) months of each Anniversary
Date. Tenant, at its expense, shall promptly undertake and complete any and
all steps necessary, and in full compliance with applicable Environmental
Laws, to fully correct any and all problems or deficiencies identified by the
environmental consultant, and promptly provide Landlord with documentation of
all such corrections.
C. Prior to the termination or expiration of the Lease, Tenant, at its
expense, shall (i) properly remove from the Property all Hazardous Materials
which come to be located at the Property in connection with Tenant's Hazardous
Materials Activities, and (ii) fully comply with and complete all facility
closure requirements of applicable Environmental Laws regarding Tenant's
Hazardous Materials Activities, including but not limited to (x) properly
restoring and repairing the Property to the extent damaged by such closure
activities, and (y) obtaining from the local Fire Department or other
appropriate governmental authority with jurisdiction a written concurrence
that closure has been completed in compliance with applicable Environmental
Laws. Tenant shall promptly provide Landlord with copies of any claims,
notices, work plans, data and reports prepared, received or submitted in
connection with any such closure activities.
D. If Landlord, in its sole discretion, believes that the Property has
become contaminated as a result of Tenant's Hazardous Materials Activities,
Landlord in addition to any other rights it may have under this Lease or under
Environmental Laws or other laws, may enter upon the Property and conduct
inspection, sampling and analysis, including but not limited to obtaining and
analyzing samples of soil and groundwater, for the purpose of determining the
nature and extent of such contamination. Tenant shall promptly reimburse
Landlord for the costs of such an investigation, including but not limited to
reasonable attorney's fees Landlord incurs with respect to such investigation,
that discloses Hazardous Materials contamination for which Tenant is liable
under this Lease. Except as may be required of Tenant by applicable
Environmental Laws, Tenant shall not perform any sampling, testing, or
drilling to identify the presence of any Hazardous Materials at the Property,
without Landlord's prior written consent which may be withheld in Landlord's
discretion. Tenant shall promptly provide Landlord with copies of any claims,
notices, work plans, data and reports prepared, received, or submitted in
connection with any sampling, testing or drilling performed pursuant to the
preceding sentence.
E. Tenant shall indemnify, defend (with legal counsel acceptable to
Landlord, whose consent shall not unreasonably be withheld) and hold harmless
Landlord, its employees, assigns, successors, successors-in-interest, agents
and representatives from and against any and all claims (including but not
limited to third party claims from a private party or a government authority),
liabilities, obligations, losses, causes of action, demands, governmental
proceedings or directives, fines, penalties, expenses, costs (including but
not limited to reasonable attorneys', consultants' and other experts' fees and
costs), and damages, which arise from or relate to: (i) Tenant's Hazardous
Materials Activities; (ii) releases or discharges of Hazardous Materials at
the Property, which occur during the Term of this Lease, (iii) any Hazardous
Materials contamination caused by Tenant prior to the Commencement Date of the
Lease; or (iv) the breach of any obligation of Tenant under this Paragraph 47
(collectively, "Tenant's Environmental Indemnification"). Tenant's
Initial: (illegible)
---------------
Park Sq. II-3
Environmental Indemnification shall include but is not limited to the
obligation to promptly and fully reimburse Landlord for losses in or
reductions to rental income, and diminution in fair market value of the
Property. Tenants Environmental Indemnification shall further include but is
not limited to the obligation to diligently and properly implement to
completion, at Tenant's expense, any and all environmental investigation,
removal, remediation, monitoring, reporting, closure activities, or other
environmental response action (collectively, "Response Actions"). Tenant shall
promptly provide Landlord with copies of any claims, notices, work plans, data
and reports prepared, received or submitted in connection with any Response
Actions.
It is agreed that the Tenant's responsibilities related to Hazardous Materials
will survive the expiration or termination of this Lease and that Landlord may
obtain specific performance of Tenant's responsibility under this Paragraph
47."
11. DELETE INAPPLICABLE PARAGRAPHS: Effective May 1, 1998, Paragraph 1
------------------------------
("Lease Terms Co-Terminous") and Paragraph 2 ("Cross Default") to Amendment No.
1 shall be null and void and of no further force or effect.
12. AUTHORITY TO EXECUTE: The parties executing this Agreement hereby warrant
--------------------
and represent that they are properly authorized to execute this Agreement and
bind the parties on behalf of whom they execute this Agreement and to all of the
terms, covenants and conditions of this Agreement as they relate to the
respective parties hereto.
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and conditions of said
July 19, 1995 Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment No. 2 to
Lease as of the day and year last written below.
LANDLORD: TENANT:
XXXX XXXXXXXXX FIRST VIRTUAL CORPORATION
SURVIVOR'S TRUST a Delaware corporation
By /s/ Xxxx Xxxxxxxxx By /s/ Xxxxx Xxxxxxx
----------------------- ---------------------
Xxxx Xxxxxxxxx, Trustee
Date: 5/1/98 Xxxxx Xxxxxxx
-------------------- -----------------------
Print or Type Name
XXXXXXX X. XXXXX SEPARATE Title: Facilities Operations
----------------------
PROPERTY TRUST
By /s/ Xxxxxxx X. Xxxxx Date: April 29, 1998
--------------------- ------------------
Xxxxxxx X. Xxxxx, Trustee
Date: 5/7/98
------
Initial: (illegible)^^
--------------
