NET LEASE AGREEMENT
(Single Tenant)
For and in consideration of the rentals, covenants, and conditions
hereinafter set forth, Landlord hereby leases to Tenant, and Tenant hereby rents
from Landlord, the herein described Premises for the term, at the rental and
subject to and upon all of the terms, covenants and agreements set forth in this
Net Lease Agreement, including Landlord's right to recover the Premises pursuant
to Paragraph 24 below ("Lease"):
1. SUMMARY OF LEASE PROVISIONS.
1.1 Tenant: Career Central Corporation, a California
corporation ("Tenant").
1.2 Landlord: Oakmead Investments, a California general
partnership ("Landlord").
1.3 Effective Date of Lease, for reference purposes only:
March 22, 2000.
1.4 Premises: That certain real property and building situated
thereon located in the City of Sunnyvale, County of Santa Xxxxx, State of
California, shown cross-hatched on the site plan attached hereto as Exhibit "A",
and commonly referred to as 0000 X. Xxxxxx Xxxxxx.
1.5 Term: Seven (7) years. (Paragraph 3)
1.6 Scheduled Commencement Date: May 1, 2000, subject
to the provisions of Paragraph 3 below. (Paragraph 3)
1.7 Ending Date: April 30, 2007, subject to the
provisions of Paragraph 3 below. (Paragraph 3)
1.8 Rent:
May 1, 2000 through April 30, 2001 $146,828 per month
May 1, 2001 through April 30, 2002 150,832 per month
May 1, 2002 through April 30, 2003 154,837 per month
May 1, 2003 through April 30, 2004 158,841 per month
May 1, 2004 through April 30, 2005 162,846 per month
May 1, 2005 through April 30, 2006 166,850 per month
May 1, 2006 through April 30, 2007 170,855 per month
(Paragraph 4)
Receipt of the first month's Rent is hereby acknowledged by Landlord.
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1.9 Use of Premises: Office, sales, research and development,
shipping, receiving and storage. (Paragraph 6)
1.10 Security Deposit: $170,855. (Paragraph 5)
1.11 Addresses for Notices:
To Landlord:
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000-0000
To Tenant: After the Commencement Date to the Premises;
prior to the Commencement Date to:
0000 Xxxx Xxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Chief Executive Officer
1.12 SUMMARY PROVISIONS IN GENERAL. Parenthetical references
in this Paragraph 1 to other paragraphs in this Lease are for convenience of
reference, and designate some of the other Lease paragraphs where applicable
provisions are set forth. All of the terms and conditions of each such
referenced paragraph shall be construed to be incorporated within and are made a
part of each of the above referring Summary of Lease Provisions. In the event of
any conflict between any Summary of Lease Provision as set forth above and the
balance of the Lease, the latter shall control.
2. PROPERTY LEASED.
2.1 PREMISES. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord, upon the terms and conditions herein set forth,
that certain real property and building ("Premises") referred to in Paragraph
1.4 above, shown cross-hatched on the site plan attached hereto as Exhibit "A".
Tenant shall have the exclusive right to use all parking spaces on the Premises.
2.2. IMPROVEMENTS. The Premises are currently leased and
occupied by Xxxxxx Corporation ("Xxxxxx") pursuant to a lease (the "Xxxxxx
Lease") expiring on March 31, 2000. Pursuant to the terms of the Xxxxxx Lease,
Xxxxxx is to vacate the Premises on or before March 31, 2000. Landlord will
exert reasonably diligent efforts to cause such timely vacation but Landlord
does not warrant that such vacation will occur nor does Landlord warrant the
condition of the Premises upon the vacation by Xxxxxx. Tenant has heretofore
inspected the Premises and is satisfied with the condition thereof and the
level of maintenance performed by Xxxxxx with respect thereto. Landlord will
make no improvement, renovation, or refurbishment of the Premises prior to or
as a condition precedent to the Commencement Date. Tenant covenants and agrees
that by not later than nine (9) months following the
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Commencement Date, Tenant at Tenant's cost and expense, will complete at
least one-half of the improvements to the Premises in accordance with the
Improvement Agreement attached hereto as Exhibit "C" and by not later than
eighteen (18) months following the Commencement Date Tenant, at Tenant's cost
and expense, will complete the balance of the improvements to the Premises in
accordance with the Improvement Agreement attached hereto as Exhibit "C".
Tenant will expend not less than $1,334,800 for said improvements.
2.3 ACCEPTANCE OF PREMISES. By taking possession of the
Premises, Tenant shall be deemed to have accepted the Premises as being in
good and sanitary order, condition and repair and to have accepted the
Premises in their condition existing as of the date Tenant takes possession of
the Premises, subject to all applicable laws, covenants, conditions,
restrictions, easements and other matters of public record and the rules and
regulations from time to time promulgated by Landlord governing the use of the
Premises. Tenant acknowledges that neither Landlord nor Landlord's agents have
made any representation or warranty as to the suitability of the Premises for
the conduct of Tenant's business, the condition of the Premises, or the use or
occupancy which may be made thereof and Tenant has independently investigated
and is satisfied that the Premises are suitable for Tenant's intended use and
that the Premises meets all governmental requirements for such intended use.
3. TERM.
3.1 COMMENCEMENT DATE. The term of this Lease ("Lease Term")
shall be for the period specified in Paragraph 1.5 above, commencing on the
later of May 1, 2000 or the date on which Landlord has delivered possession of
the Premises to Tenant. In the event the Commencement Date occurs on any date
other than May 1, 2000, the Ending Date, rent adjustment dates and similar
dates shall be adjusted to reflect the actual Commencement Date.
3.2 DELAY OF COMMENCEMENT DATE. Landlord shall not be liable
for any damage or loss incurred by Tenant for Landlord's failure for whatever
cause to deliver possession of the Premises by the Commencement Date nor shall
this Lease be void or voidable on account of such failure to deliver
possession of the Premises; provided that if Landlord does not deliver
possession of the Premises to Tenant by the date which is sixty (60) days from
the date this Lease is executed by both parties, Tenant shall have the right
to terminate this Lease by written notice delivered to Landlord within five
(5) days thereafter, and Landlord and Tenant shall be relieved of their
respective obligations hereunder.
3.3 EARLY OCCUPANCY. If Tenant takes possession of the
Premises at any time after April 1, 2000 and prior to the Commencement Date,
Tenant shall do so subject to all of the terms and conditions hereof and shall
pay the Additional Rent (but not Rent) provided for herein.
3.4 TENANT TO PHYSICALLY OCCUPY PREMISES. Tenant shall, no
later than thirty (30) days after the Commencement Date, go into actual
physical occupancy of the Premises; provided, however, the date of Tenant's
physical occupancy of the Premises shall in no event
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extend the Commencement Date, the Lease Termination date or the date the
payment of Rentals hereunder commences. Time is of the essence.
4. RENT.
4.1 RENT. Tenant shall pay to Landlord as rent for the
Premises ("Rent"), in advance, on the first day of each calendar month,
commencing on the date specified in Paragraph 1.6 and continuing throughout
the Lease Term the Rent set forth in Paragraph 1.8 above. Rent shall be
prorated, based on thirty (30) days per month, for any partial month during
the Lease Term. Rent shall be payable without deduction, offset, prior notice
or demand in lawful money of the United States to Landlord at the address
herein specified for purposes of notice or to such other persons or such other
places as Landlord may designate in writing.
4.2 LATE CHARGE. Tenant hereby acknowledges that late payment
by Tenant to Landlord of Rent will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges which may be imposed on Landlord by
the terms of any mortgage or deed of trust covering the Premises. Accordingly,
Tenant shall pay to Landlord, as Additional Rent (as defined in Paragraph 4.3
below), without the necessity of prior notice or demand, a late charge equal
to five percent (5%) of any installment of Rent which is not received by
Landlord within ten (10) days after the due date for such installment. The
parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of late payment by Tenant.
In no event shall this provision for a late charge be deemed to grant to
Tenant a grace period or extension of time within which to pay any installment
of Rent or prevent Landlord from exercising any right or remedy available to
Landlord upon Tenant's failure to pay such installment of Rent when due,
including without limitation the right to terminate this Lease. In the event
any installment of Rent is not received by Landlord by the thirtieth (30th)
day after the due date for such installment, such installment shall bear
interest at the annual rate set forth in Paragraph 34 below, commencing on the
thirty-first (31st) day after the due date for such installment and continuing
until such installment is paid in full.
4.3 ADDITIONAL RENT. All taxes, charges, costs and expenses
and other sums which Tenant is required to pay hereunder (together with all
interest and charges that may accrue thereon in the event of Tenant's failure
to pay the same), and all damages, costs and expenses which Landlord may incur
by reason of any Default by Tenant shall be deemed to be additional rent
hereunder ("Additional Rent"). Additional Rent shall accrue commencing on the
Commencement Date. In the event of nonpayment by Tenant of any Additional
Rent, Landlord shall have all the rights and remedies with respect thereto as
Landlord has for the nonpayment of Rent. The term "Rentals" as used in this
Lease shall mean Rent and Additional Rent.
5. SECURITY DEPOSIT. Concurrently with Tenant's execution of this
Lease, Tenant shall deposit with Landlord a security deposit ("Security
Deposit") in the amount set forth in Paragraph 1.10 above. The Security
Deposit shall be held by Landlord as security for the faithful performance by
Tenant of each and every term, covenant and condition of this Lease
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applicable to Tenant; and not as prepayment of Rent. If Tenant shall at any
time fail to keep or perform any term, covenant or condition of this Lease
applicable to Tenant, including, without limitation, the payment of Rentals
or those provisions requiring Tenant to repair damage to the Premises caused
by Tenant or to surrender the Premises in the condition required pursuant to
Paragraph 35 below, Landlord may, but shall not be obligated to and without
waiving or releasing Tenant from any obligation under this Lease, use, apply
or retain the whole or any part of the Security Deposit reasonably necessary
for the payment of any amount which Landlord may spend by reason of Tenant's
default or as necessary to compensate Landlord for any loss or damage which
Landlord may suffer by reason of Tenant's default. In the event Landlord uses
or applies any portion of the Security Deposit, Tenant shall, within five (5)
days after written demand by Landlord, remit to Landlord sufficient funds to
restore the Security Deposit to its original sum. Failure by Tenant to so
remit funds shall be a Default by Tenant. Should Tenant comply with all of
the terms, covenants and conditions of this Lease applicable to Tenant, the
balance of the Security Deposit shall be returned to Tenant within fourteen
(14) days after Lease Termination and surrender of the Premises by Tenant;
provided, however, if any portion of the Security Deposit is to be applied to
repair damages to the Premises caused by Tenant or Tenant's agents, to clean
the Premises, or to remove alterations and restore the Premises pursuant to
Paragraph 13.2 below, then the balance of the Security Deposit shall be
returned to Tenant no later than thirty (30) days after the date Landlord
receives possession of the Premises.
6. USE OF PREMISES.
6.1 PERMITTED USES Tenant shall use the Premises only in
conformance with applicable Laws for the purposes set forth in Paragraph 1.9
above, and for no other purpose without the prior written consent of Landlord.
Any change in use of the Premises without the prior written consent of
Landlord shall be a Default by Tenant. Tenant and Tenant's agents shall comply
with the provisions of any Declaration of Covenants, Conditions, and
Restrictions affecting the Premises.
6.2 TENANT TO COMPLY WITH LEGAL REQUIREMENTS. Tenant shall,
at its sole cost, promptly comply with any rule, regulation, order, law,
statute, ordinance or any other requirement of any governmental or
quasi-governmental authority now or hereafter in effect (collectively,
"Laws") relating to or affecting the use, occupational safety, occupancy or
condition of the Premises now in force, or which may hereafter be in force,
including without limitation those relating to utility usage and load or
number of permissible occupants or users of the Premises, whether or not the
same are now contemplated by the parties; with the provisions of all recorded
documents affecting the Premises insofar as the same relate to or affect the
use, occupational safety, occupancy, or condition of the Premises; and with
the requirements of any board of fire underwriters (or similar body now or
hereafter constituted) relating to or affecting the use, occupational safety,
occupancy or condition of the Premises. Tenant's obligations pursuant to this
Paragraph 6.2 shall tinclude without limitation maintaining or restoring the
Premises and making structural (if required in connection with Tenant's
improvements made pursuant to Exhibit "C" and/or if required due solely to
Tenant's specific use of the Premises) and non-structural alterations and
additions in compliance and conformity with all Laws and recorded documents
relating to the use, occupational safety, occupancy or condition of the
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Premises during the Lease Term; provided, however, that Landlord shall make
any alteration or addition required to bring the Premises into compliance
with legal requirements in effect at the time the Premises, or any
improvements installed therein by Landlord, respectively, were originally
constructed. At Landlord's option, Landlord may make the required alteration,
addition or change, and Tenant shall pay the cost thereof as Additional Rent.
With respect to any alterations or additions as may be hereafter required due
to a change in Laws and unrelated to Tenant's specific use of the Premises,
Tenant shall be required to pay in monthly installments a pro rata portion of
the cost thereof, which amount shall be determined by multiplying the total
cost by a fraction, the numerator of which is the number of months remaining
in the Lease Term at the time of the alteration or addition, and the
denominator of which is the number of months in the useful life of the
alteration or addition. Tenant shall obtain prior to taking possession of the
Premises any permits, licenses or other authorizations required for the
lawful operation of its business at the Premises. The judgment of any court
of competent jurisdiction or the admission of Tenant in any action or
proceeding against Tenant, regardless of whether Landlord is a party thereto
or not, that Tenant has violated such Law or recorded document relating to
the use, occupational safety, occupancy or condition of the Premises shall be
conclusive of the fact of such violation by Tenant. Any alterations or
additions undertaken by Tenant pursuant to this Paragraph 6.2 shall be
subject to the requirements of Paragraph 13.1 below.
6.3 PROHIBITED USES. Tenant and Tenant's agents shall not
commit or suffer to be committed any waste upon the Premises. Tenant and
Tenant's agents shall not do or permit anything to be done in or about the
Premises which will unreasonably obstruct or interfere with the rights of any
occupants of neighboring property, or injure or annoy them. Tenant shall not
conduct or permit any auction or sale open to the public to be held or
conducted on or about the Premises. Tenant and Tenant's agents shall not use
or allow the Premises to be used for any unlawful purpose or any purpose not
permitted by this Lease, nor shall Tenant or Tenant's agents cause, maintain,
or permit any nuisance in, on or about the Premises. Tenant and Tenant's
agents shall not do or permit anything to be done in or about the Premises nor
bring or keep anything in the Premises which will cause a cancellation of any
insurance policy covering the Premises or any part thereof or any of its
contents, nor shall Tenant or Tenant's agents keep, use or sell or permit to
be kept, used or sold in or about the Premises any articles which may be
prohibited by a standard form policy of fire insurance. In the event the rate
of any insurance upon the Premises or any part thereof or any of its contents
is increased because of the acts or omissions of Tenant or Tenant's agents,
Tenant shall pay, as Additional Rent, the full cost of such increase; provided
however this provision shall in no event be deemed to constitute a waiver of
Landlord's right to any other rights or remedies of Landlord in connection
with such increase. Tenant and Tenant's agents shall not place any loads upon
the floor, walls or ceiling of the Premises which would endanger the Premises
or the structural elements thereof, nor place any harmful liquids in the
drainage system of the Premises. No waste materials or refuse shall be dumped
upon or permitted to remain upon any part of the Premises except in enclosed
trash containers. No materials, supplies, equipment, finished products (or
semi-finished products), raw materials, or other articles of any nature shall
be stored upon, or be permitted to remain on, any portion of the Premises.
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Tenant shall not allow any activity which in the reasonable opinion of
Landlord is detrimental to the operation of other buildings located upon real
property owned by Landlord adjacent to the Premises, including but not limited
to any picketing, work stoppage, or other concerted activity. Landlord shall
have the right to require Tenant, at Tenant's own expense and within a
reasonable period of time, to use Tenant's best efforts to terminate or
control any such picketing, work stoppage or other concerted activity to the
extent necessary to eliminate any interference with the operation or such
tenants. Failure by Tenant to use its best efforts to do so shall be a Default
by Tenant. Nothing contained in this paragraph shall be construed as placing
Landlord in an employer-employee relationship with any of Tenant's employees
or with any other employees who may be involved in such activity.
6.4 HAZARDOUS MATERIALS. Neither Tenant nor Tenant's agents
shall permit the introduction, placement, use, storage, manufacture,
transportation, release or disposition (collectively "Release") of any
Hazardous Material(s) (defined below) on or about any portion of the Premises
in violation of Laws without the prior written consent of Landlord, which
consent may be withheld in the sole and absolute discretion of Landlord
without any requirement of reasonableness in the exercise of that discretion.
Notwithstanding the immediately preceding sentence to the contrary, Tenant may
use de minimis quantities of the types of materials which are technically
classified as Hazardous Materials but commonly used in domestic or office use
to the extent not in an amount, which, either individually or cumulatively,
would be a "reportable quantity" under any applicable Law. Tenant covenants
that, at its sole cost and expense, Tenant will comply with all applicable
Laws with respect to the Release of such permitted Hazardous Materials in
violation of Laws. Any Release beyond the scope allowed in this paragraph
shall be subject to Landlord's prior consent, which may be withheld in
Landlord's sole and absolute discretion, and shall require an amendment to the
Lease in the event Landlord does consent which shall set forth the materials,
scope of use, indemnification and any other matter required by Landlord in
Landlord's sole and absolute discretion. Tenant shall indemnify, defend and
hold Landlord and Landlord's agents harmless from and against any and all
claims, losses, damages, liabilities, or expenses arising in connection with
the Release of Hazardous Materials by Tenant, Tenant's agents, employees,
contractors, subcontractors, or invitees, in violation of Laws. Tenant's
obligation to defend, hold harmless and indemnify pursuant to this
Paragraph 6.4 shall survive Lease Termination.
As used in this Lease, the term "Hazardous Materials" means any
chemical, substance, waste or material which has been or is hereafter
determined by any federal, state or local governmental authority to be capable
of posing risk of injury to the environment, including without limitation,
those substances included within the definitions of "hazardous substances,"
"hazardous materials," "toxic substances," or "solid waste" under the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
the Resource Conservation and Recovery Act of 1976, and the Hazardous
Materials Transportation Act, as amended, and in the regulations promulgated
pursuant to said laws; those substances defined as "hazardous wastes" in
section 25117 of the California Health & Safety Code, or as "hazardous
substances" in section 25316 of the California Health & Safety Code, as
amended, and in the regulations promulgated pursuant to said laws; those
substances listed in the United States Department of Transportation Table (49
CFR 172.101 and amendments thereto) or designated by the Environ-
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mental Protection Agency (or any successor agency) as hazardous substances
(SEE, E.G., 40 CFR Part 302 and amendments thereto); such other substances,
materials and wastes which are or become regulated or become classified as
hazardous or toxic under any Laws, including without limitation the
California Health & Safety Code, Division 20, and Title 26 of the California
Code of Regulations; and any material, waste or substance which is
(i) petroleum, (ii) asbestos, (iii) polychlorinated biphenyls,
(iv) designated as a "hazardous substance" pursuant to section 311 of the
Clean Water Act of 1977, 33 U.S.C. sections 1251 ET SEQ. (33 U.S.C. ` 1321)
or listed pursuant to section 307 of the Clean Water Act of 1977 (33 U.S.C. `
1317), as amended; (v) flammable explosives; (vi) radioactive materials; or
(vii) radon gas.
7. TAXES.
7.1 PERSONAL PROPERTY TAXES. Tenant shall cause Tenant's trade
fixtures, equipment, furnishings, furniture, merchandise, inventory,
machinery, appliances and other personal property installed or located on the
Premises (collectively the "personal property") to be assessed and billed
separately from the Premises. Tenant shall pay before delinquency any and all
taxes, assessments and public charges levied, assessed or imposed upon or
against Tenant's personal property. If any of Tenant's personal property shall
be assessed with the real property comprising the Premises, Tenant shall pay
to Landlord, as Additional Rent, the amounts attributable to Tenant's personal
property within ten (10) days after receipt of a written statement from
Landlord setting forth the amount of such taxes, assessments and public
charges attributable to Tenant's personal property. Tenant shall comply with
the provisions of any Law which requires Tenant to file a report of Tenant's
personal property located on the Premises.
7.2 OTHER TAXES PAYABLE SEPARATELY BY TENANT. Tenant shall pay
(or reimburse Landlord, as Additional Rent, if Landlord is assessed), ten (10)
days prior to delinquency any and all taxes, levies, assessments or surcharges
payable by Landlord or Tenant (other than Landlord's net income, succession,
transfer, gift, franchise, estate or inheritance taxes, and Taxes, as that
term is defined in Paragraph 7.3(a) below, payable as an Operating Expense),
whether or not now customary or within the contemplation of the parties
hereto, whether or not now in force or which may hereafter become effective,
including but not limited to taxes:
(a) Upon, allocable to, or measured by the area of the
Premises or the Rentals payable hereunder, including without limitation any
gross income, gross receipts, excise, or other tax levied by the state, any
political subdivision thereof, city or federal government with respect to the
receipt of such Rentals;
(b) Upon this transaction or any document to which Tenant is a
party creating or transferring an interest or an estate in the Premises; or
(c) Imposed as a means of controlling or abating the use of
energy or any natural resource (including without limitation gas, electricity
or water), including, without limitation, any parking taxes, levies or charges
or vehicular regulations imposed by any governmental agency. Tenant shall also
pay, prior to delinquency, all privilege, sales, excise,
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use, business, occupation, or other taxes, assessments, license fees or
charges levied, assessed or imposed upon Tenant's business operations
conducted at the Premises.
In the event any such taxes are payable by Landlord and it shall not be
lawful for Tenant to reimburse Landlord for such taxes, then the Rentals
payable hereunder shall be increased to net Landlord the same net Rental after
imposition of any such tax upon Landlord as would have been payable to
Landlord prior to the imposition of any such tax.
7.3 COMMON TAXES.
(a) DEFINITION OF TAXES. The term "Taxes" as used in this
Lease shall collectively mean (to the extent any of the following are not
paid by Tenant pursuant to Paragraphs 7.1 and 7.2 above) all real estate
taxes and general and special assessments (including, but not limited to,
assessments for public improvements or benefit); personal property taxes;
taxes based on vehicles utilizing parking areas on the Premises; taxes
computed or based on rental income or on the square footage of the Premises
(including without limitation any municipal business tax but excluding
federal, state and municipal net income taxes); environmental surcharges;
excise taxes; gross receipts taxes; water and sewer taxes, levies,
assessments and other charges in the nature of taxes or assessments
(including, but not limited to, assessments for public improvements or
benefit); and all other governmental, quasi-governmental or special district
impositions of any kind and nature whatsoever; regardless of whether any of
the foregoing are now customary or within the contemplation of the parties
hereto and regardless of whether resulting from increased rate and/or
valuation, or whether extraordinary or ordinary, general or special,
unforeseen or foreseen, or similar or dissimilar to any of the foregoing and
which during the Lease Term are laid, levied, assessed or imposed upon
Landlord and/or become a lien upon or chargeable against the Premises under
or by virtue of any present or future laws, statutes, ordinances,
regulations, or other requirements of any governmental, quasi-governmental or
special district authority whatsoever. The term "environmental surcharges"
shall include any and all expenses, taxes, charges or penalties imposed by
the Federal Department of Energy, Federal Environmental Protection Agency,
the Federal Clean Air Act, or any regulations promulgated thereunder, or
imposed by any other local, state or federal governmental agency or entity
now or hereafter vested with the power to impose taxes, assessments or other
types of surcharges as a means of controlling or abating environmental
pollution or the use of energy or any natural resource in regard to the use,
operation or occupancy of the Premises. The term "Taxes" shall include (to
the extent the same are not paid by Tenant pursuant to Paragraphs 7.1 and 7.2
above), without limitation, all taxes, assessments, levies, fees, impositions
or charges levied, imposed, assessed in lieu of or equivalent to any Taxes
set forth in this Paragraph 7.3(a). In the event any such Taxes are payable
by Landlord and it shall not be lawful for Tenant to reimburse Landlord for
such Taxes, then the Rentals payable hereunder shall be increased to net
Landlord the same net Rental after imposition of any such Tax upon Landlord
as would have been payable to Landlord prior to the imposition of any such
Tax.
(b) OPERATING EXPENSES. All Taxes which are levied or assessed
or which become a lien upon the Premises or which become due or accrue during
the Lease Term shall be
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an Operating Expense, and Tenant shall pay as Additional Rent each month
during the Lease Term 1/12th of such Taxes, based on Landlord's estimate
thereof, pursuant to Paragraph 12 below. Taxes during any partial tax fiscal
year(s) within the Lease Term shall be prorated according to the ratio which
the number of days during the Lease Term or of actual occupancy of the
Premises by Tenant, whichever is greater, during such year bears to 365.
8. INSURANCE; INDEMNITY; WAIVER.
8.1 INSURANCE BY LANDLORD.
(a) Landlord shall, during the Lease Term, procure and keep in
force the following insurance, the cost of which shall be an Operating
Expense, payable by Tenant pursuant to Paragraph 12 below:
(i) PROPERTY INSURANCE. "All risk" property
insurance, including, without limitation, coverage for earthquake and flood;
boiler and machinery (if applicable); sprinkler damage; vandalism; malicious
mischief; full coverage plate glass insurance; and demolition, increased cost
of construction and contingent liability from change in building laws on the
Premises, including any improvements or fixtures constructed or installed on
the Premises by Landlord and by Tenant pursuant to Exhibit "C". Such insurance
shall be in the full amount of the replacement cost of the foregoing, with
reasonable deductible amounts, which deductible amounts shall be an Operating
Expense, payable by Tenant pursuant to Paragraph 12. Such insurance shall also
include rental income insurance, insuring that one hundred percent (100%) of
the Rentals (as the same may be adjusted hereunder) will be paid to Landlord
for a period of up to twelve (12) months if the Premises are destroyed or
damaged. Such insurance shall not cover any other leasehold improvements
installed in the Premises by Tenant at its expense, or Tenant's equipment,
trade fixtures inventory, fixtures or personal property located on or in the
Premises;
(ii) LIABILITY INSURANCE. Comprehensive general
liability (lessor's risk) insurance against any and all claims for personal
injury, death or property damage occurring in or about the Premises. Such
insurance shall have a combined single limit of not less than Three Million
Dollars ($3,000,000) per occurrence and Five Million Dollars ($5,000,000)
aggregate; and
8.2 INSURANCE BY TENANT. Tenant shall, during the Lease Term,
at Tenant's sole cost and expense, procure and keep in force the following
insurance:
(a) PERSONAL PROPERTY INSURANCE. "All risk" property
insurance, including, without limitation; boiler and machinery (if
applicable); sprinkler damage; vandalism; malicious mischief; and demolition,
increased cost of construction and contingent liability from changes in
building laws on all leasehold improvements installed in the Premises by
Tenant at its expense other than those constructed pursuant to Exhibit "C" and
on all equipment, trade fixtures, inventory, fixtures and personal property
located on or in the Premises, including improvements or fixtures hereinafter
constructed or installed on the Premises. Such insurance shall be in an
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amount equal to the full replacement cost of the aggregate of the foregoing
and shall provide coverage comparable to the coverage in the standard ISO all
risk form, when such form is supplemented with the coverages required above.
(b) LIABILITY INSURANCE. Commercial general liability
insurance against any and all claims for personal injury, death or property
damage occurring in or about the Premises, or arising out of Tenant's or
Tenant's agents' use or occupancy of the Premises or Tenant's operations on
the Premises. Such insurance shall have a combined single limit of not less
than Three Million Dollars ($3,000,000) per occurrence and Five Million
Dollars ($5,000,000) aggregate. Such insurance shall contain a cross-liability
(severability of interests) clause and an extended ("broad form") liability
endorsement, including blanket contractual coverage. Such liability insurance
shall be primary and not contributing to any insurance available to Landlord,
and Landlord's insurance (if any) shall be in excess thereto. Such insurance
shall specifically insure Tenant's performance of the indemnity, defense and
hold harmless agreements contained in Paragraph 8.4, although Tenant's
obligations pursuant to Paragraph 8.4 shall not be limited to the amount of
any insurance required of or carried by Tenant under this Paragraph 8.2(b).
Tenant shall be responsible for insuring that the amount of insurance
maintained by Tenant is sufficient for Tenant's purposes.
(c) OTHER. Such other insurance as required by law, including,
without limitation, workers' compensation insurance.
(d) FORM OF THE POLICIES. The policies required to be
maintained by Tenant pursuant to Paragraphs 8.2(a), (b), and (c) above shall
be with companies, on forms, reasonably satisfactory to Landlord, shall
include Landlord and the beneficiary or mortgagee of any deed of trust or
mortgage encumbering the Premises as additional insureds, and shall provide
that such parties may, although additional insureds recover for any loss
suffered by Tenant's negligence. Certified copies of policies or certificates
of insurance shall be delivered to Landlord prior to the Commencement Date or
the Early Occupancy Date, if any; a new policy or certificate shall be
delivered to Landlord at least thirty (30) days prior to the expiration date
of the old policy. Tenant shall have the right to provide insurance coverage
which it is obligated to carry pursuant to the terms hereof in a blanket
policy, provided such blanket policy expressly affords coverage to the
Premises and to Tenant as required by this Lease. Tenant shall obtain a
written obligation on the part of Tenant's insurer(s) to notify Landlord and
any beneficiary or mortgagee of a deed of trust or mortgage encumbering the
Premises and/or the real property in writing of any delinquency in premium
payments and at least thirty (30) days prior to any cancellation or
modification of any policy. Tenant's policies shall provide coverage on an
occurrence basis and not on a claims made basis. In no event shall the limits
of any policies maintained by Tenant be considered as limiting the liability
of Tenant under this Lease.
8.3 FAILURE BY TENANT TO OBTAIN INSURANCE. If Tenant does not
take out the insurance required pursuant to Paragraph 8.2 or keep the same in
full force and effect, Landlord may, after notice to Tenant and the failure of
Tenant to obtain the same within ten (10) days of said notice, but shall not
be obligated to, take out the necessary insurance and pay the premium
therefor, and Tenant shall repay to Landlord, as Additional Rent, the amount
so paid promptly
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upon demand. In addition, Landlord may recover from Tenant and Tenant agrees
to pay, as Additional Rent, any and all reasonable expenses (including
attorneys' fees) and damages which Landlord may sustain by reason of the
failure of Tenant to obtain and maintain such insurance, it being expressly
declared that the expenses and damages of Landlord shall not be limited to
the amount of the premiums thereon.
8.4 INDEMNIFICATION Tenant shall indemnify, hold harmless, and
defend Landlord (except for Landlord's or its Agents negligence or willful
misconduct) against all claims, losses, damages, expenses or liabilities for
injury or death to any person or for damage to or loss of use of any property
arising out of any occurrence in, on or about the Premises, to the extent
caused or contributed to by Tenant or Tenant's agents, or arising out of any
occurrence in, upon or at the Premises or on account of the use, condition,
occupational safety or occupancy of the Premises by Tenant or Tenant's agents,
employees, contractors, subcontractors or invitees. Tenant's indemnification,
defense and hold harmless obligations under this Lease shall include and apply
to attorneys' fees, investigation costs, and other costs actually incurred by
Landlord. Tenant shall further indemnify, defend and hold harmless Landlord
from and against any and all claims, losses, damages, liabilities or expenses
arising from any breach or default in the performance of any obligation on
Tenant's part to be performed under the terms of this Lease. The provisions of
this Paragraph 8.4 shall survive Lease Termination with respect to any damage,
injury, death, breach or default occurring prior to such termination.
8.5 CLAIMS BY TENANT. Landlord shall not be liable to Tenant,
and Tenant waives all claims against Landlord, for injury or death to any
person, damage to any property, or loss of use of any property in the Premises
by and from all causes, including without limitation, any defect in the
Premises and/or any damage or injury resulting from fire, steam, electricity,
gas, water or rain, which may leak or flow from or into any part of the
Premises, or from breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures, whether the damage or injury results from conditions arising upon
the Premises or from other sources. Tenant or Tenant's agents shall
immediately notify Landlord in writing of any known defect in the Premises.
The provisions of this Paragraph 8.5 shall not apply to any damage or injury
caused by Landlord's willful misconduct, negligence or breach of this Lease.
8.6 MUTUAL WAIVER OF SUBROGATION. Notwithstanding anything in
this Lease to the contrary, Landlord hereby releases Tenant, and Tenant hereby
releases Landlord, and their respective officers, agents, employees and
servants, from any and all claims or demands of damages, loss, expense or
injury to the Premises, or to the furnishings, fixtures, equipment, inventory
or other property of either Landlord or Tenant in, about or upon the Premises,
which is caused by or results from perils, events or happenings which are the
subject of insurance required to be carried by the respective parties pursuant
to this Paragraph 8 or in force at the time of any such loss, whether due to
the negligence of the other party or its agents and regardless of cause or
origin; provided, however, that such waiver shall be effective only to the
extent permitted by the insurance covering such loss, to the extent such
insurance is not prejudiced thereby, and to the extent insured against.
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9. UTILITIES. Tenant shall pay during the Lease Term and prior to
delinquency all charges for water, gas, light, heat, power, electricity,
telephone or other communication service, janitorial service, trash pick-up,
sewer and all other services supplied to or consumed on the Premises
(collectively the "Services") and all taxes, levies, fees or surcharges
therefor. Tenant shall arrange for Services to be supplied to the Premises and
shall contract for all of the Services in Tenant's name prior to the
Commencement Date. The Commencement Date shall not be delayed by reason of any
failure by Tenant to so contract for Services. In the event that any of the
Services cannot be separately billed or metered to the Premises, or if any of
the Services are not separately metered as of the Commencement Date, the cost
of such Services shall be an Operating Expense and Tenant shall pay such cost
to Landlord, as Additional Rent, as provided in Paragraph 12 below, except
that Tenant's proportionate share of such Services shall be the percentage
obtained by dividing the gross leasable square footage contained in the
Premises by the total gross leasable square footage located in all buildings
utilizing such Services. The lack or shortage of any Services due to any cause
whatsoever shall not affect any obligation of Tenant hereunder, and Tenant
shall faithfully keep and observe all the terms, conditions and covenants of
this Lease and pay all Rentals due hereunder, all without diminution, credit
or deduction.
10. REPAIRS AND MAINTENANCE.
10.1 LANDLORD'S RESPONSIBILITIES.
Subject to the provisions of Paragraph 15 below, Landlord shall maintain in
reasonably good order and repair the structural roof and roof surface,
structural and exterior walls (including painting thereof) and foundations of
the Premises, and the exterior landscaping and parking areas of the Premises,
except for any repairs required because of the wrongful act of Tenant or
Tenant's agents, which repairs shall be made at the expense of Tenant and as
Additional Rent. In addition, Landlord may elect at any time, at its option,
to maintain the heating and air conditioning systems of the Premises. Tenant
shall give prompt written notice to Landlord of any known maintenance work
required to be made by Landlord pursuant to this Paragraph 10.1. The costs of
repairs and maintenance which are the obligation of Landlord hereunder or
which Landlord elects to perform hereunder shall be an Operating Expense and
Tenant shall pay such costs to Landlord as Additional Rent, as provided in
Paragraph 12 below.
To the extent any labor dispute in which Tenant is involved or of which
Tenant is the object interferes with the performance of Landlord's duties
hereunder, Landlord shall be excused from the performance of such duties and
Tenant hereby waives any and all claims against Landlord for damages or losses
in regard to such duties.
10.2 TENANT'S RESPONSIBILITIES. Except as expressly provided
in Paragraph 10.1 above, Tenant shall, at its sole cost, maintain the entire
Premises and every part thereof, including without limitation, windows,
skylights, window frames, plate glass, freight docks, doors and related
hardware, interior walls and partitions, and the electrical, plumbing,
lighting, heating and air conditioning systems (unless Landlord has elected to
keep and maintain the heating and air conditioning systems pursuant to
Paragraph 10.1 above) in good order, condition
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and repair. If Landlord has not elected to keep and maintain the heating and
air conditioning systems, Tenant shall deliver to Landlord, every six (6)
months during the Lease Term, a certificate of maintenance or its equivalent,
signed by a licensed HVAC repair and maintenance contractor and stating that
the heating and air conditioning systems servicing the Premises have been
inspected, serviced and are in good order, condition and repair. Tenant's
failure to deliver said certificate or its equivalent shall be a Default by
Tenant. If Tenant fails to make repairs or perform maintenance work required
of Tenant hereunder within thirty (30) days after notice from Landlord
specifying the need for such repairs or maintenance work, Landlord or
Landlord's agents may, in addition to all other rights and remedies available
hereunder or by law and without waiving any alternative remedies, enter into
the Premises and make such repairs and/or perform such maintenance work. If
Landlord makes such repairs and/or performs such maintenance work, Tenant
shall reimburse Landlord upon demand and as Additional Rent, for the cost of
such repairs and/or maintenance work. Landlord shall have no liability to
Tenant for any damage, inconvenience or interference with the use of the
Premises by Tenant or Tenant's agents as a result of Landlord performing any
such repairs or maintenance. Tenant shall reimburse Landlord, on demand and
as Additional Rent, for the cost of damage to the Premises caused by Tenant
or Tenant's agents. Tenant expressly waives the benefits of any statute now
or hereafter in effect (including without limitation the provisions of
subsection 1 of Section 1932, Section 1941 and Section 1942 of the California
Civil Code and any similar law, statute or ordinance now or hereafter in
effect) which would otherwise afford Tenant the right to make repairs at
Landlord's expense (or to deduct the cost of such repairs from Rentals due
hereunder) or to terminate this Lease because of Landlord's failure to keep
the Premises in good and sanitary order.
11. EXTERIOR AREA.
11.1 IN GENERAL. 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 agents shall have the nonexclusive right to use
during the Lease Term the access roads, sidewalks, parking and landscaped
areas of the Premises. Neither Tenant nor Tenant's agents shall at any time
park or permit the parking of their vehicles in any portion of the Premises
not designated by Landlord as a parking area.
Landlord reserves the right to promulgate such reasonable rules and
regulations relating to the use of all or any portion of the Premises and to
amend such rules and regulations from time to time, with or without advance
notice, as Landlord may deem appropriate. Any amendments to the rules and
regulations shall be effective as to Tenant, and binding on Tenant, upon
delivery of a copy of such rules and regulations to Tenant. Tenant and
Tenant's agents shall observe such rules and regulations and any failure by
Tenant or Tenant's agents to observe and comply with the rules and regulations
shall be a Default by Tenant.
Landlord furthermore reserves the right, after having given Tenant
reasonable notice, to have any vehicles owned by Tenant or Tenant's agents
which are parked in violation of the provisions of this Paragraph 11.1 or in
violation of Landlord's rules and regulations relating to parking, to be towed
away at Tenant's cost.
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12. OPERATING EXPENSES.
12.1 DEFINITION. "Operating Expense" or "Operating Expenses"
as used in this Lease shall mean and include all items identified in other
paragraphs of this Lease as an Operating Expense and the total cost paid or
incurred by Landlord for the operation, maintenance, repair, and management of
the Premises, which costs shall include, without limitation: the cost of
Services and utilities supplied to the Premises (to the extent the same are
not separately charged or metered to Tenant); water; sewage; fuel;
electricity; lighting systems; professional management fee (not to exceed
three percent (3%) of the Premises' Rent); fire protection systems; storm
drainage and sanitary sewer systems; HVAC including air conditioning (to the
extent the heating and air conditioning systems in the Premises are not
maintained by Tenant at Tenant's sole cost and expense); repairing the roof
surface); property and liability insurance covering the Premises and any other
insurance carried by Landlord pursuant to Paragraph 8 above; cleaning,
sweeping, striping, resurfacing of parking and driveway areas; cleaning the
parking area following storms or other severe weather; cleaning and repairing
of sidewalks, curbs, stairways; costs related to irrigation systems; the cost
of complying with Laws, including, without limitation, maintenance,
alterations and repairs required in connection therewith; costs related to
landscape maintenance; and the cost of contesting the validity or
applicability of any governmental enactments which may affect Operating
Expenses. The specific examples of Operating Expenses stated in this Paragraph
12.1 are in no way intended to and shall not limit the costs comprising
Operating Expenses, nor shall such examples be deemed to obligate Landlord to
incur such costs or to provide such services or to take such actions except as
Landlord may be expressly required in other portions of this Lease, or except
as Landlord, in its sole discretion, may elect.
12.2 PAYMENT OF OPERATING EXPENSES BY TENANT. Tenant shall pay
the Operating Expenses to Landlord as Additional Rent and without deduction or
offset. Payment of Operating Expenses by Tenant shall be made by whichever of
the following methods is from time to time designated by Landlord, and
Landlord may change the method of payment at any time. Operating Expenses
actually incurred or paid by Landlord but not theretofore billed to Tenant, as
invoiced by Landlord, shall be payable by Tenant within thirty (30) days after
receipt of Landlord's invoice, but not more often than once each calendar
month. Alternatively, Tenant's payment of Operating Expenses shall be based
upon Landlord's estimate of Operating Expenses and shall be payable in equal
monthly installments in advance on the first day of each calendar month
commencing with the month following receipt of Landlord's estimate (and
subject to Landlord's right to change the method of payment). Within ninety
(90) days after the end of each calendar year (or at Lease Termination)
Landlord shall furnish Tenant a statement showing the actual Operating
Expenses for the period to which Landlord's estimate pertains and shall
concurrently either xxxx Tenant for the balance due (payable upon demand by
Landlord) or credit Tenant's account for the excess previously paid.
13. ALTERATIONS.
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13.1 IN GENERAL. Tenant shall not make, or permit to be made,
any alterations, changes, enlargements, improvements or additions
(collectively "Alterations") in, on, about or to the Premises, or any part
thereof, including Alterations required pursuant to Paragraph 6.2, without the
prior written consent of Landlord and without acquiring and complying with the
conditions of all permits required for such Alterations by any governmental
authority having jurisdiction thereof. The term "Alterations" as used in this
Paragraph 13 shall also include all heating, lighting, electrical (including
all wiring, conduit, outlets, drops, xxxx ducts, main and subpanels), air
conditioning, and fixed wall partitioning in the Premises made by Tenant,
regardless of how affixed to the Premises. As a condition to the giving of its
consent, Landlord may impose such requirements as Landlord may reasonably deem
necessary, including without limitation, the manner in which the work is done;
a right of approval of the contractor by whom the work is to be performed; the
requirement that Tenant post a completion bond in an amount and form
satisfactory to Landlord; and the requirement that Tenant reimburse Landlord,
as Additional Rent, for Landlord's actual costs incurred in reviewing any
proposed Alteration, whether or not Landlord's consent is granted. In the
event Landlord consents to the making of any Alterations by Tenant, the same
shall be made by Tenant at Tenant's sole cost and expense, in accordance with
the plans and specifications approved by Landlord. Tenant shall give written
notice to Landlord five (5) days prior to employing any laborer or contractor
to perform services related to, or receiving materials for use upon the
Premises, and prior to the commencement of any work of improvement on the
Premises. Any Alterations to the Premises made by Tenant shall be made in
accordance with applicable Laws and in a first-class workmanlike manner. In
making any such Alterations, Tenant shall, at Tenant's sole cost and expense,
file for and secure and comply with any and all permits or approvals required
by any governmental departments or authorities having jurisdiction thereof and
any utility company having an interest therein. In no event shall Tenant make
any structural changes to the Premises or make any changes to the Premises
which would weaken or impair the structural integrity of the Premises.
13.2 REMOVAL UPON LEASE TERMINATION. At the time Tenant
requests Landlord's consent, Tenant shall request a decision from Landlord in
writing as to whether Landlord will require Tenant, at Tenant's expense, to
remove any such Alterations and restore the Premises to their prior condition
at Lease Termination. In the event Tenant fails to earlier obtain Landlord's
written decision as to whether Tenant will be required to remove any
Alteration, then no less than ninety (90) nor more than one hundred twenty
(120) days prior to the expiration of the Lease Term, Tenant by written notice
to Landlord shall request Landlord to inform Tenant whether or not Landlord
desires to have any Alterations made to the Premises by Tenant removed at
Lease Termination. Following receipt of such notice, Landlord may elect to
have all or a portion of Tenant's Alterations removed from the Premises at
Lease Termination, and Tenant shall, at its sole cost and expense, remove at
Lease Termination such Alterations designated by Landlord for removal and
repair all damage to the Premises arising from such removal. In the event
Tenant fails to so request Landlord's decision or fails to remove any
Alterations designated by Landlord for removal, Landlord may remove any
Alterations made to the Premises by Tenant and repair all damage to the
Premises arising from such removal, and may recover from Tenant all costs and
expenses incurred thereby. Tenant's obligation to pay such costs and expenses
to Landlord shall survive Lease Termination. Unless Landlord elects to have
Tenant remove (or, upon Tenant's failure to obtain Landlord's decision,
Landlord
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removes) any such Alterations, all such Alterations, except for moveable
furniture and trade fixtures of Tenant not affixed to the Premises, shall
become the property of Landlord upon Lease Termination (without any payment
therefor) and remain upon and be surrendered with the Premises at Lease
Termination.
13.3 LANDLORD'S IMPROVEMENTS. All fixtures, improvements or
equipment which are installed, constructed on or attached to the Premises by
Landlord shall be a part of the realty and belong to Landlord.
14. DEFAULT AND REMEDIES.
14.1 EVENTS OF DEFAULT. The term "Default by Tenant" as used
in this Lease shall mean the occurrence of any of the following events:
(a) Tenant's failure to pay when due any Rentals;
(b) Tenant's abandonment of the Premises;
(c) Commencement and continuation for at least thirty (30)
days of any case, action or proceeding by, against or concerning Tenant under
any federal or state bankruptcy, insolvency or other debtor's relief law,
including without limitation, (i) a case under Title 11 of the United States
Code concerning Tenant, whether under Chapter 7, 11, or 13 of such Title or
under any other Chapter, or (ii) a case, action or proceeding seeking Tenant's
financial reorganization or an arrangement with any of Tenant's creditors;
(d) Voluntary or involuntary appointment of a receiver,
trustee, keeper, or other person who takes possession for more than thirty
(30) days of substantially all of Tenant's assets regardless of whether such
appointment is as a result of insolvency or any other cause;
(e) Execution of an assignment for the benefit of creditors of
substantially all assets of Tenant available by law for the satisfaction of
judgment creditors;
(f) Commencement of proceedings for winding up or dissolving
(whether voluntary or involuntary) the entity of Tenant, if Tenant is a
corporation or a partnership;
(g) Levy of a writ of attachment or execution on Tenant's
interest under this Lease, if such writ continues for a period of thirty (30)
days;
(h) Transfer or attempted Transfer of this Lease or the
Premises by Tenant contrary to the provisions of Paragraph 24 below; or
(i) Breach by Tenant of any term, covenant, condition,
warranty, or other provision contained in this Lease or of any other
obligation owing or due to Landlord.
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14.2 REMEDIES. Upon any Default by Tenant, Landlord shall have
the following remedies, in addition to all other rights and remedies provided
by law, to which Landlord may resort cumulatively, or in the alternative:
14.2.1 TERMINATION. Upon any Default by Tenant,
Landlord shall have the right (but not the obligation) to give written notice
to Tenant of such default and terminate this Lease and Tenant's right to
possession of the Premises if (i) such default is in the payment of Rentals
and is not cured within three (3) days after any such notice, or, (ii) with
respect to the defaults referred to in subparagraphs 14.1(b), (e), (f), (h)
and (i), such default is not cured within thirty (30) days after any such
notice (or if a default under subparagraphs 14.1(b) or (i) cannot be
reasonably cured within thirty (30) days, if Tenant does not commence to cure
the default within the thirty (30) day period or does not diligently and in
good faith prosecute the cure to completion), or, (iii) with respect to the
defaults specified in subparagraphs 14.1(c) (d) and (g), such default is not
cured within the respective time periods specified in those subparagraphs.
Upon termination of this Lease and Tenant's right to possession of the
Premises, Landlord shall have the right to recover from Tenant:
(a) The worth at the time of award of the
unpaid Rentals which had been earned at the time of termination;
(b) The worth at the time of award of the
amount by which the Rentals which would have been earned after termination
until the time of award exceeds the amount of such rental loss that Tenant
proves could have been reasonably avoided;
(c) The worth at the time of award
(computed by discounting at the discount rate of the Federal Reserve Bank of
San Francisco at the time of award plus one percent) of the amount by which
the Rentals for the balance of the Lease Term after the time of award exceed
the amount of such rental loss that Tenant proves could be reasonably avoided;
(d) Any other amounts necessary to
compensate Landlord for all detriment proximately caused by the Default by
Tenant or which in the ordinary course of events would likely result,
including without limitation the following:
(i) Expenses in retaking
possession of the Premises;
(ii) Expenses for cleaning,
repairing or restoring the Premises;
(iii) Any unamortized real estate
brokerage commission paid in connection with this Lease;
(iv) Expenses for removing,
transporting, and storing any of Tenant's property left at the Premises
(although Landlord shall have no obligation to remove, transport, or store any
such property);
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(v) Expenses of reletting the
Premises, including without limitation, brokerage commissions allocable to the
remainder of the Lease Term and attorneys' fees;
(vi) Attorneys' fees and court
costs; and
(vii) Costs of carrying the Premises
such as repairs, maintenance, taxes and insurance premiums, utilities and
security precautions (if any).
(c) The "worth at the time of award" of the
amounts referred to in subparagraphs (a) and (b) of this Paragraph 14.2.1 is
computed by allowing interest at an annual rate equal to the greater of: ten
percent (10%); or five percent (5%) plus the rate established by the Federal
Reserve Bank of San Francisco, as of the twenty-fifth (25th) day of the month
immediately preceding the Default by Tenant, on advances to member banks under
Sections 13 and 13(a) of the Federal Reserve Act, as now in effect or
hereafter from time to time amended, not to exceed the maximum rate allowable
by law.
14.2.2 CONTINUANCE OF LEASE. Upon any Default by
Tenant and unless and until Landlord elects to terminate this Lease pursuant
to Paragraph 14.2.1 above, this Lease shall continue in effect after the
Default by Tenant and Landlord may enforce all its rights and remedies under
this Lease, including without limitation, the right to recover payment of
Rentals as they become due. Neither efforts by Landlord to mitigate damages
caused by a Default by Tenant nor the acceptance of any Rentals shall
constitute a waiver by Landlord of any of Landlord's rights or remedies,
including the rights and remedies specified in Paragraph 14.2.1 above.
15. DAMAGE OR DESTRUCTION.
15.1 DEFINITION OF TERMS. For the purposes of this Lease, the
term: (a) "Insured Casualty" means damage to or destruction of the Premises
from a cause required to be or actually insured against, for which the
insurance proceeds are paid or will be made available to Landlord are
sufficient to rebuild or restore the Premises under then-existing building
codes to the condition existing immediately prior to the damage or
destruction; and (b) "Uninsured Casualty" means damage to or destruction of
the Premises from a cause not required to be or actually insured against, or
from a cause requried to be or actually insured against but for which the
insurance proceeds are not paid or will not be made available to Landlord.
15.2 INSURED CASUALTY.
15.2.1 REBUILDING REQUIRED. In the event of an
Insured Casualty where the extent of damage or destruction is less than fifty
percent (50%) of the then full replacement cost of the Premises, Landlord
shall rebuild or restore the Premises to the condition existing immediately
prior to the damage or destruction, provided that there exist no governmental
codes or regulations that would preclude Landlord's ability to so rebuild or
restore.
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15.2.2 LANDLORD'S ELECTION. In the event of an
Insured Casualty where the extent of damage or destruction is equal to or
greater than fifty percent (50%) of the then full replacement cost of the
Premises, Landlord may, at its option and at its sole discretion, rebuild or
restore the Premises to the condition existing immediately prior to the damage
or destruction, or terminate this Lease. Landlord shall notify Tenant in
writing within sixty (60) days after the event of damage or destruction of
Landlord's election to either rebuild or restore the Premises or terminate
this Lease.
15.2.3 CONTINUANCE OF LEASE. If Landlord is
required to rebuild or restore the Premises pursuant to Paragraph 15.2.1 or if
Landlord elects to rebuild or restore the Premises pursuant to Paragraph
15.2.2, this Lease shall remain in effect and Tenant shall have no claim
against Landlord for compensation for inconvenience or loss of business during
any period of repair or restoration.
15.3 UNINSURED CASUALTY.
15.3.1 LANDLORD'S ELECTION. In the event of an
Uninsured Casualty, Landlord may, at its option and at its sole discretion (i)
rebuild or restore the Premises as soon as reasonably possible at Landlord's
expense in which event this Lease shall continue in full force and effect or
(ii) terminate this Lease, in which event Landlord shall give written notice
to Tenant within sixty (60) days after the event of damage or destruction of
Landlord's election to terminate this Lease as of the date of the event of
damage or destruction, and if the damage or destruction.
15.3.2 TENANT'S ABILITY TO CONTINUE LEASE. If
Landlord elects to terminate this Lease and if there exist no governmental
codes or regulations that would preclude Landlord's ability to so repair or
restore, then Tenant may nevertheless cause the Lease to continue in effect by
(i) notifying Landlord in writing within thirty (30) days after Landlord's
notice of termination of Tenant's agreement to pay all costs of rebuilding or
restoring not covered by insurance, and (ii) providing Landlord with
reasonable security for or assurance of such payment. Tenant shall pay to
Landlord in cash no later than thirty (30) days prior to the date of
commencement of construction the reasonable estimated cost of rebuilding or
restoring. In the event Tenant fails to pay such cost to Landlord by the date
specified, Landlord may immediately terminate the Lease and recover from
Tenant all costs incurred by Landlord in preparation for construction. If the
actual cost of rebuilding or restoring exceeds the estimated cost of such
work, Tenant shall pay the difference to Landlord in cash upon notification by
Landlord of the final cost. If the cost of rebuilding or restoring is less
than the estimated cost of such work, Tenant shall be entitled to a refund of
the difference upon completion of the rebuilding or restoring and
determination of final cost.
15.4 TENANT'S ELECTION. Notwithstanding anything to the
contrary contained in this Paragraph 15, Tenant may elect to terminate this
Lease in the event the Premises are damaged or destroyed and, in the
reasonable opinion of Landlord's architect or construction consultants, the
restoration of the Premises cannot be substantially completed within one
hundred eighty (180) days after the event of damage or destruction. Tenant's
election shall be
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made by written notice to Landlord within thirty (30) days after Tenant
receives from Landlord the estimate of the time needed to complete repair or
restoration of the Premises. If Tenant does not deliver said notice within
said thirty (30) day period, Tenant may not later terminate this Lease even
if substantial completion of the rebuilding or restoration occurs subsequent
to said one hundred eighty (180) day period, provided that Landlord is
proceeding with diligence to rebuild or restore the Premises. If Tenant
delivers said notice within said thirty (30) day period, this Lease shall
terminate as of the date of the event of damage or destruction.
15.5 DAMAGE OR DESTRUCTION NEAR END OF LEASE TERM.
Notwithstanding anything to the contrary contained in this Paragraph 15, in
the event the Premises are damaged or destroyed in whole or in part
(regardless of the extent of damage) from any cause during the last twelve
(12) months of the Lease Term and cannot be restored within ninety (90) days
of the occurrence, Landlord may, at Landlord's option, terminate this Lease
as of the date of the event of damage or destruction by giving written notice
to Tenant of Landlord's election to do so within thirty (30) days after the
event of such damage or destruction. For purposes of this Paragraph 15.5, if
Tenant has been granted an option to extend or renew the Lease Term pursuant
to another provision of this Lease, then the damage or destruction shall be
deemed to have occurred during the last twelve (12) months of the Lease Term
if Tenant fails to exercise its option to extend or renew within twenty (20)
days after the event of damage or destruction.
15.6 TERMINATION OF LEASE. If the Lease is terminated
pursuant to this Paragraph 15, the unused balance of the Security Deposit
shall be refunded to Tenant. The current Rent shall be proportionately
reduced during the period following the event of damage or destruction until
the date on which Tenant surrenders the Premises, based upon the extent to
which the damage or destruction interferes with Tenant's business conducted
in the Premises. All other Rentals due hereunder shall continue unaffected
during such period.
15.7 ABATEMENT OF RENTALS. If the Premises are to be rebuilt
or restored pursuant to this Paragraph 15, the then current Rentals shall be
proportionately reduced during the period of repair or restoration, based
upon the extent to which the making of repairs interferes with Tenant's
business conducted in the Premises.
15.8 LIABILITY FOR PERSONAL PROPERTY. In no event shall
Landlord have any liability for, nor shall it be required to repair or
restore, any injury or damage to any Alterations to the Premises made by
Tenant, trade fixtures, equipment, merchandise, furniture, or any other
property installed by Tenant or at the expense of Tenant. If Landlord or
Tenant do not elect to terminate this Lease pursuant to this Paragraph 15,
Tenant shall be obligated to promptly rebuild or restore the Alterations to
the condition existing immediately prior to the damage or destruction in
accordance with the provisions of Paragraph 13.1.
15.9 WAIVER OF CIVIL CODE REMEDIES. Landlord and Tenant
acknowledge that the rights and obligations of the parties upon damage or
destruction of the Premises are as set forth herein; therefore Tenant hereby
expressly waives any rights to terminate this Lease upon damage or
destruction of the Premises, except as specifically provided by this Lease,
including without limitation any rights pursuant to the provisions of
subdivision 2 of Section 1932 and
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subdivision 4 of Section 1933 of the California Civil Code, as amended from
time to time, and the provisions of any similar law hereinafter enacted,
which provisions relate to the termination of the hiring of a thing upon its
substantial damage or destruction.
16. CONDEMNATION.
16.1 DEFINITION OF TERMS. For the purposes of this Lease, the
term: (a) "Taking" means a taking of the Premises or damage related to the
exercise of the power of eminent domain and includes, without limitation, a
voluntary conveyance, in lieu of court proceedings, to any agency, authority,
public utility, person or corporate entity empowered to condemn property; (b)
"Total Taking" means the Taking of the entire Premises or so much of the
Premises as to prevent or substantially impair the use thereof by Tenant for
the uses herein specified; (c) "Partial Taking" means the Taking of only a
portion of the Premises which does not constitute a Total Taking; (d) "Date
of Taking" means the date upon which the title to the Premises or a portion
thereof, passes to and vests in the condemnor or the effective date of any
order for possession if issued prior to the date title vests in the
condemnor; (e) "Award" means the amount of any award made, consideration
paid, or damages ordered as a result of a Taking.
16.2 RIGHTS. The parties agree that in the event of a Taking
all rights between them or in and to an Award shall be as set forth herein.
16.3 TOTAL TAKING. In the event of a Total Taking during the
Lease Term: (a) the rights of Tenant under this Lease and the leasehold
estate of Tenant in and to the Premises shall cease and terminate as of the
Date of Taking; (b) Landlord shall refund to Tenant any prepaid Rent and the
unused balance of the Security Deposit; (c) Tenant shall pay Landlord any
Rentals due Landlord under the Lease, prorated as of the Date of Taking; (d)
Tenant shall receive from the Award those portions of the Award attributable
to trade fixtures of Tenant; (e) the remainder of the Award shall be paid to
and be the property of Landlord.
16.4 PARTIAL TAKING. In the event of a Partial Taking during
the Lease Term: (a) the rights of Tenant under the Lease and the leasehold
estate of Tenant in and to the portion of the Premises taken shall cease and
terminate as of the Date of Taking; (b) from and after the Date of Taking the
Rent shall be an amount equal to the product obtained by multiplying the then
current Rent by the quotient obtained by dividing the fair market value of
the Premises immediately after the Taking by the fair market value of the
Premises immediately prior to the Taking; (c) Tenant shall receive from the
Award the portions of the Award attributable to trade fixtures of Tenant; and
(d) the remainder of the Award shall be paid to and be the property of
Landlord. Each party waives the provisions of California Code of Civil
Procedure Section 1265.130 allowing either party to petition the Superior
Court to terminate this Lease in the event of a Partial Taking.
17. LIENS.
17.1 PREMISES TO BE FREE OF LIENS. Tenant shall pay for all
labor and services performed for, and all materials used by or furnished to
Tenant, Tenant's agents, or any
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contractor employed by Tenant with respect to the Premises. Tenant shall
indemnify, defend and hold Landlord harmless from and keep the Premises free
from any liens, claims, demands, encumbrances, or judgments, including all
costs, liabilities and attorneys' fees with respect thereto, created or
suffered by reason of any labor or services performed for, or materials used
by or furnished to Tenant or Tenant's agents or any contractor employed by
Tenant with respect to the Premises. Landlord shall have the right, at all
times, to post and keep posted on the Premises any notices permitted or
required by law, or which Landlord shall deem proper, for the protection of
Landlord and the Premises , and any other party having an interest therein,
from mechanics' and materialmen's liens, including without limitation a
notice of nonresponsibility. In the event Tenant is required to post an
improvement bond with a public agency in connection with any work performed
by Tenant on or to the Premises, Tenant shall include Landlord as an
additional obligee.
17.2 NOTICE OF LIEN, BOND. Should any claims of lien be filed
against, or any action be commenced affecting, the Premises, Tenant's
interest in the Premises, Tenant shall give Landlord notice of such lien or
action within ten (10) days after Tenant receives notice of the filing of the
lien or the commencement of the action. In the event that Tenant shall not,
within thirty (30) days following the imposition of any such lien, cause such
lien to be released of record by payment or posting of a proper bond,
Landlord shall have, in addition to all other remedies provided herein and by
law, the right, but not the obligation, to cause the same to be released by
such means as Landlord shall deem proper, including payment of the claim
giving rise to such lien or posting of a proper bond. All such sums paid by
Landlord and all expenses incurred by Landlord in connection therewith,
including attorneys' fees and costs, shall be payable to Landlord by Tenant
as Additional Rent on demand.
18. LANDLORD'S RIGHT OF ACCESS TO PREMISES. Landlord reserves and
shall have the right and Tenant and Tenant's agents shall permit Landlord and
Landlord's agents to enter the Premises at any reasonable time for the
purpose of (i) inspecting the Premises, (ii) performing Landlord's
maintenance and repair responsibilities set forth herein, (iii) posting
notices of non-responsibility, (iv) placing upon the Premises at any time
"For Sale" signs, (v) placing on the Premises ordinary "For Lease" signs at
any time within ninety (90) days prior to Lease Termination, or at any time
Tenant is in Default hereunder, or at such other times as agreed to by
Landlord and Tenant, (vi) protecting the Premises in the event of an
emergency, and (vii) exhibiting the Premises to prospective purchasers,
lenders or tenants. In the event of an emergency, Landlord shall have the
right to use any and all reasonable means which Landlord may deem proper to
gain access to the Premises. Any entry to the Premises by Landlord or
Landlord's agents in accordance with this Paragraph 18 or any other provision
of this Lease 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 of Tenant from the Premises or any portion thereof nor give Tenant
the right to xxxxx the Rentals payable under this Lease. Tenant hereby waives
any claims for damages for any injury or inconvenience to or interference
with Tenant's business, any loss of occupancy or quiet enjoyment of the
Premises, and any other loss occasioned by Landlord's or Landlord's agents'
entry into the Premises as permitted by this Paragraph 18 or any other
provision of this Lease.
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19. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS. Except as
otherwise expressly provided herein, if Tenant shall at any time fail to make
any payment or perform any other act required to be made or performed by
Tenant under this Lease, Landlord may upon twenty (20) days written notice to
Tenant, but shall not be obligated to and without waiving or releasing Tenant
from any obligation under this Lease, make such payment or perform such other
act to the extent that Landlord may deem desirable, and in connection
therewith, pay expenses and employ counsel. All sums so paid by Landlord and
all penalties, interest and costs in connection therewith shall be due and
payable by Tenant as Additional Rent upon demand.
20. LENDER REQUIREMENTS.
20.1 SUBORDINATION. This Lease, at Landlord's option, shall
be subject and subordinate to the lien of any mortgages or deeds of trust
(including all advances thereunder, renewals, replacements, modifications,
supplements, consolidations, and extensions thereof) in any amount(s)
whatsoever now or hereafter placed on or against or affecting the Premises or
Landlord's interest or estate therein, without the necessity of the execution
and delivery of any further instruments on the part of Tenant to effectuate
such subordination. If any mortgagee or beneficiary shall elect to have this
Lease prior to the lien of its mortgage or deed of trust, and shall give
written notice thereof to Tenant, this Lease shall be deemed prior to such
mortgage or deed of trust, whether this Lease is dated prior or subsequent to
the date of such mortgage or deed of trust or the date of the recording
thereof.
20.2 SUBORDINATION AGREEMENTS. Tenant shall execute and
deliver without charge therefor, such further instruments evidencing
subordination of this Lease to the lien of any mortgages or deeds of trust
affecting the Premises as may be required by Landlord within ten (10)
business days following Landlord's request therefor; provided that such
mortgagee or beneficiary under such mortgage or deed of trust agrees in
writing that this Lease shall not be terminated in the event of any
foreclosure if Tenant is not in default under this Lease. Failure of Tenant
to execute such instruments evidencing subordination of this Lease shall
constitute a Default by Tenant hereunder.
20.3 ATTORNMENT. In the event of foreclosure or the exercise
of the power of sale under any mortgage or deed of trust made by Landlord and
covering the Premises, Tenant shall attorn to the purchaser upon any such
foreclosure or sale and recognize such purchaser as the Landlord under this
Lease, provided such purchaser expressly agrees in writing to be bound by the
terms of the Lease, including, but not limited to, the quiet enjoyment
provisions of Paragraph 39.
20.4 ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS.
(a) DELIVERY BY TENANT. Tenant shall, within ten (10)
business days following request by Landlord therefor and without charge,
execute and deliver to Landlord any and all documents, estoppel certificates,
and current financial statements of Tenant requested by Landlord in
connection with the sale or financing of the Premises, or requested by any
lender making a loan affecting the Premises and/or real property. Landlord
may require that Tenant in
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any estoppel certificate shall (i) certify that this Lease is unmodified and
in full force and effect (or, if modified, state the nature of such
modification and certify that this Lease, as so modified, is in full force
and effect) and has not been assigned, (ii) certify the date to which Rentals
are paid in advance, if any, (iii) acknowledge that there are not, to
Tenant's knowledge, any uncured defaults on the part of Landlord hereunder,
or specify such defaults if claimed, (iv) evidence the status of this Lease
as may be required either by a lender making a loan to Landlord to be secured
by a deed of trust or mortgage covering the Premises and/or real property or
a purchaser of the Premises from Landlord, (v) warrant that in the event any
beneficiary of any security instrument encumbering the Premises and/or real
property forecloses on the security instrument or sells the Premises pursuant
to any power of sale contained in such security instrument, such beneficiary
shall not be liable for the Security Deposit unless received by such
beneficiary, (vi) certify the date Tenant entered into occupancy of the
Premises and that Tenant is conducting business at the Premises, (vii)
certify that all improvements to be constructed on the Premises by Landlord
have been substantially completed except for punch list items which do not
prevent Tenant from using the Premises for its intended use, and (viii)
certify such other matters relating to the Lease and/or Premises as may be
reasonably requested by a lender making a loan to Landlord or a purchaser of
the Premises from Landlord. Any such estoppel certificate may be conclusively
relied upon by any prospective purchaser or encumbrancer of the Premises. Any
financial statements of Tenant shall include an opinion of a certified public
accountant (if available) and a balance sheet and profit and loss statement
for the most recent fiscal year, all prepared in accordance with generally
accepted accounting principles consistently applied. All such financial
statements shall be kept confidential.
(b) NONDELIVERY BY TENANT. Tenant's failure to deliver an
estoppel certificate as required pursuant to Paragraph 20.5(a) above shall be
conclusive upon Tenant that (i) this Lease is in full force and effect,
without modification except as may be represented by Landlord and has not
been assigned, (ii) there are now no uncured defaults in Landlord's
performance, (iii) no Rentals have been paid in advance except those that are
set forth in this Lease, (iv) no beneficiary of any security instrument
encumbering the Premises shall be liable for the Security Deposit in the
event of a foreclosure or sale under such security instrument unless received
by such beneficiary, (v) the improvements to be constructed on the Premises
by Landlord have been substantially completed except for punch list items
which do not prevent Tenant from using the Premises for its intended use, and
(vi) Tenant has entered into occupancy of the Premises on such date as may be
represented by Landlord and is open and conducting business at the Premises.
Tenant's failure to deliver any financial statements, estoppel certificates
or other documents as required pursuant to Paragraph 20.5(a) above shall be a
Default by Tenant.
21. HOLDING OVER. This Lease shall terminate without further
notice at the expiration of the Lease Term. It is the desire of Landlord
either to enter into a new lease with Tenant for the Premises prior to the
expiration of the Lease Term, or to have Tenant vacate the Premises pursuant
to Paragraph 35 below. Therefore, any holding over by Tenant after Lease
Termination shall not constitute a renewal or extension of the Lease Term,
nor give Tenant any rights in or to the Premises except as expressly provided
in this Lease. Any holding over after Lease Termination with the consent of
Landlord shall be construed to be a tenancy from month to month, at one
hundred fifty percent (150%) of the monthly Rent for the month preceding
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Lease Termination in addition to all Additional Rent payable hereunder, and
shall otherwise be on the terms and conditions herein specified insofar as
applicable. If Tenant remains in possession of the Premises after Lease
Termination without Landlord's consent Tenant shall indemnify, defend and
hold Landlord harmless from and against any loss, damage, expense, claim or
liability resulting from Tenant's failure to surrender the Premises,
including without limitation, any claims made by any succeeding tenant based
on delay in the availability of the Premises.
22. NOTICES. Any notice required or desired to be given under
this Lease shall be in writing, and all notices shall be given by personal
delivery or mailing. All notices personally given on Tenant may be delivered
to any corporate officer of Tenant if Tenant is a corporation, or on any one
signatory party if more than one party signs this Lease on behalf of Tenant;
any notice so given shall be binding upon all signatory parties as if served
upon each such party personally. Any notice given pursuant to this Paragraph
22 shall be deemed to have been given when personally delivered, or if
mailed, when seventy-two (72) hours have elapsed from the time when such
notice was deposited in the United States mail, certified or registered mail
and postage prepaid, addressed to the party at the last address given for
purposes of notice pursuant to the provisions of this Paragraph 22. At the
date of execution of this Lease, the addresses of Landlord and Tenant are set
forth in Paragraph 1.11 above.
23. ATTORNEYS' FEES. In the event either party hereto shall bring
any action or legal proceeding for damages for an alleged breach of any
provision of this Lease, to recover Rentals, to enforce an indemnity defense
or hold harmless obligation, to terminate the tenancy of the Premises, or to
enforce, protect, interpret, or establish any term, condition, or covenant of
this Lease or right or remedy of either party, the prevailing party shall be
entitled to recover, as a part of such action or proceeding, reasonable
attorneys' fees and court costs, including attorneys' fees and costs for
appeal, as may be fixed by the court or jury.
24. ASSIGNMENT, SUBLETTING AND HYPOTHECATION.
24.1 IN GENERAL. Tenant shall not voluntarily sell, assign or
transfer all or any part of Tenant's interest in this Lease or in the
Premises or any part thereof, sublease all or any part of the Premises, or
permit all or any part of the Premises to be used by any person or entity
other than Tenant or Tenant's employees, except as specifically provided in
this Paragraph 24.
24.2 VOLUNTARY ASSIGNMENT AND SUBLETTING.
(a) NOTICE TO LANDLORD. Tenant shall, by written notice,
advise Landlord of Tenant's desire on a stated date (which date shall not be
less than twenty (20) days nor more than ninety (90) days after the date of
Tenant's notice) to assign this Lease or to sublet all or any part of the
Premises for any part of the Lease Term. Tenant's notice shall state the
name, legal composition and address of the proposed assignee or subtenant,
and Tenant shall provide the following information to Landlord with said
notice: a true and complete copy of the proposed assignment agreement or
sublease; a financial statement of the proposed assignee or subtenant
prepared in accordance with generally accepted accounting principles within
one year prior to
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the proposed effective date of the assignment or sublease; the nature of the
proposed assignee's or subtenant's business to be carried on in the Premises;
the payments to be made or other consideration to be given on account of the
assignment or sublease; a current financial statement of Tenant; and such
other pertinent information as may be reasonably requested by Landlord, all
in sufficient detail to enable Landlord to evaluate the proposed assignment
or sublease and the prospective assignee or subtenant. Tenant's notice shall
not be deemed to have been served or given until such time as Tenant has
provided Landlord with all information reasonably requested by Landlord
pursuant to this Paragraph 24.2. Tenant shall immediately notify Landlord of
any modification to the proposed terms of such assignment or sublease. Tenant
may withdraw its notice at any time.
(b) LANDLORD'S CONSENT. Within twenty (20) days after receipt
of Tenant's notice, Landlord shall not unreasonably withhold its consent to
the proposed assignment or subletting, on the terms and conditions specified
in said notice. Without otherwise limiting the criteria upon which Landlord
may withhold its consent to any proposed assignment or sublease, if Landlord
withholds its consent where Tenant is in Default at the time of the giving of
Tenant's notice or at any time thereafter, or where the net worth of the
proposed assignee or subtenant (according to generally accepted accounting
principles) is less than the net worth of Tenant at the time this Lease is
executed, such withholding of consent shall be presumptively reasonable.
Seventy-five percent (75%) of any rent in excess of the Rentals to be paid
under this Lease (prorated in the event of a sublease of less than the entire
Premises), shall be paid directly to Landlord, as Additional Rent, at the
time and place specified in this Lease. For the purposes of this Paragraph
24, the term "rent" shall include any consideration of any kind received, or
to be received, by Tenant from an assignee or subtenant, if such sums are
related to Tenant's interest in this Lease or in the Premises, including, but
not limited to key money, bonus money, and payments (in excess of the fair
market value thereof) for Tenant's assets, fixtures, trade fixtures,
inventory, accounts, goodwill, equipment, furniture, general intangibles, and
any capital stock or other equity ownership interest of Tenant. Any
assignment or subletting without Landlord's consent shall be voidable at
Landlord's option, and shall constitute a Default by Tenant. Landlord's
consent to any one assignment or sublease shall not constitute a waiver of
the provisions of this Paragraph 24 as to any subsequent assignment or
sublease nor a consent to any subsequent assignment or sublease; further,
Landlord's consent to an assignment or sublease shall not release Tenant from
Tenant's obligations under this Lease, and Tenant shall remain jointly and
severally liable with the assignee or subtenant.
(c) ASSUMPTION OF OBLIGATIONS. In the event Landlord consents
to any assignment, such consent shall be conditioned upon the assignee
expressly assuming and agreeing to be bound by each of Tenant's covenants,
agreements and obligations contained in this Lease, pursuant to a written
assignment and assumption agreement in a form approved by Landlord.
Landlord's consent to any assignment or sublease shall be evidenced by
Landlord's signature on said assignment and assumption agreement or on said
sublease or by a separate written consent. In the event Landlord consents to
a proposed assignment or sublease, such assignment or sublease shall be valid
and the assignee or subtenant shall have the right to take possession of the
Premises only if an executed original of the assignment or sublease is
delivered to Landlord, and such document contains the same terms and
conditions as stated in
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Tenant's notice to Landlord given pursuant to Paragraph 24.2(a) above, except
for any such modifications to which Landlord has consented in writing.
24.3 COLLECTION OF RENT. Tenant hereby irrevocably gives to
and confers upon Landlord, as security for Tenant's obligations under this
Lease, the right, power and authority to collect all rents from any assignee
or subtenant of all or any part of the Premises as permitted by this
Paragraph 24, or otherwise, and Landlord, as assignee of Tenant, or a
receiver for Tenant appointed on Landlord's application, may collect such
rent and apply it toward Tenant's obligations under this Lease; provided,
however, that so long as no Default by Tenant exists or except as provided by
the provisions of Paragraph 24.2(b) above, Tenant shall have the right to
collect such rent. During the period of any Default by Tenant, Landlord may
at any time without notice in Landlord's own name xxx for or otherwise
collect such rent, including rent past due and unpaid, and apply the same,
less costs and expenses of operation and collection, including reasonable
attorneys' fees, toward Tenant's obligations under this Lease. Landlord's
collection of such rents shall not constitute an acceptance by Landlord of
attornment by such subtenants; in the event of a Default by Tenant, Landlord
shall have all rights provided by this Lease and by law, and Landlord may,
upon re-entry and taking possession of the Premises, eject all parties in
possession or eject some and not others, or eject none, as Landlord shall
determine in Landlord's sole discretion.
24.4 CORPORATIONS AND PARTNERSHIPS. If Tenant is a
partnership, any withdrawal or substitution (whether voluntary, involuntary,
or by operation of law and whether occurring at one time or over a period of
time) of any partner(s) owning fifty percent (50%) or more (cumulatively) of
the partnership, any assignment(s) of fifty percent (50%) or more
(cumulatively) of any interest in the capital or profits of the partnership,
or the dissolution of the partnership shall be deemed an assignment of this
Lease requiring the prior written consent of Landlord. If Tenant is a
corporation, any dissolution, merger, consolidation or other reorganization
of Tenant, any sale or transfer (or cumulative sales or transfers) of the
capital stock of Tenant in excess of fifty percent (50%), or any sale (or
cumulative sales) of all of the assets of Tenant shall be deemed an
assignment of this Lease requiring the prior written consent of Landlord. Any
such withdrawal or substitution of partners or assignment of any interest in
or dissolution of a partnership tenant, and any such sale of stock or assets
of a corporate tenant without the prior written consent of Landlord shall be
a Default by Tenant hereunder. The foregoing notwithstanding, the sale or
transfer of any or all of the capital stock of a corporation, the capital
stock of which is now or hereafter becomes publicly traded, shall not be
deemed an assignment of this Lease.
24.5 REASONABLE PROVISIONS. Tenant expressly agrees that the
provisions of this Paragraph 24 are not unreasonable standards or conditions
for purposes of Section 1951.4(b)(2) of the California Civil Code, as amended
from time to time, under bankruptcy laws, or for any other purpose.
24.6 ATTORNEY'S FEES. Tenant shall pay, as Additional Rent,
Landlord's actual and reasonable attorneys' fees for reviewing,
investigating, processing and/or documenting any requested assignment or
sublease, whether or not Landlord's consent is granted.
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24.7 INVOLUNTARY TRANSFER. No interest of Tenant in this
Lease shall be assignable, involuntarily or by operation of law, including,
without limitation, the transfer of this Lease by testacy or intestacy. Each
of the following acts shall be considered an involuntary assignment:
(a) If Tenant is or becomes bankrupt or insolvent, makes an
assignment for the benefit of creditors, or a proceeding under any bankruptcy
law is instituted in which Tenant is the bankrupt; or, if Tenant is a
partnership or consists of more than one person or entity, if any partner of
the partnership or other person or entity is or becomes bankrupt or
insolvent, or makes an assignment for the benefit of creditors;
(b) Levy of a writ of attachment or execution on this Lease;
(c) Appointment of a receiver with authority to take
possession of the Premises in any proceeding or action to which Tenant is a
party; or
(d) Foreclosure of any lien affecting Tenant's interest in
the Premises, which lien was not consented to by Landlord pursuant to
Paragraph 24.9. An involuntary assignment shall constitute a Default by
Tenant and Landlord shall have the right to terminate this Lease, in which
case this Lease shall not be treated as an asset of Tenant. In the event the
Lease is not terminated, the provisions of Paragraph 24.2(c) regarding rents
paid by an assignee or subtenant and Paragraph 24.4 shall apply. If a writ of
attachment or execution is levied on this Lease, or if any involuntary
proceeding in bankruptcy is brought against Tenant or a receiver is
appointed, Tenant shall have sixty (60) days in which to cause the attachment
or execution to be removed, the involuntary proceeding dismissed, or the
receiver removed.
24.8 HYPOTHECATION. Tenant shall not hypothecate, mortgage or
encumber Tenant's interest in this Lease or in the Premises or otherwise use
this Lease as a security device in any manner without the consent of
Landlord, which consent Landlord may withhold in its sole and absolute
discretion. Consent by Landlord to any such hypothecation or creation of a
lien or mortgage shall not constitute consent to an assignment or other
transfer of this Lease following foreclosure of any permitted lien or
mortgage.
24.9 BINDING ON SUCCESSORS. The provisions of this Paragraph
24 expressly apply to all heirs, successors, sublessees, assignees and
transferees of Tenant.
25. SUCCESSORS. Subject to the provisions of Paragraph 24 above
and Paragraph 30.2(a) below, the covenants, conditions, and agreements
contained in this Lease shall be binding on the parties hereto and on their
respective heirs, successors and assigns.
26. LANDLORD DEFAULT; MORTGAGE PROTECTION. Landlord shall not be
in default under this Lease unless Tenant shall have given Landlord written
notice of the breach and, within thirty (30) days after notice, Landlord has
not cured the breach or, if the breach is such that it cannot reasonably be
cured under the circumstances within thirty (30) days, has not commenced
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and thereafter diligently prosecuted the cure to completion. Any money
judgment obtained by Tenant based upon Landlord's breach of this Lease shall
be satisfied only out of the proceeds of the sale or disposition of
Landlord's interest in the Premises (whether by Landlord or by execution of
judgment). In the event of any default on the part of Landlord under this
Lease, Tenant shall give notice by registered or certified mail to any
beneficiary of a deed of trust or any mortgagee of a mortgage affecting the
Premises whose address shall have been furnished to Tenant, and shall offer
such beneficiary or mortgagee a reasonable opportunity to cure the default,
including time to obtain possession of the Premises by receivership if such
should prove necessary to effect a cure.
27. EXHIBITS. All exhibits attached to this Lease shall be deemed
to be incorporated herein by the individual reference to each such exhibit,
and all such exhibits shall be deemed to be a part of this Lease as though
set forth in full in the body of the Lease.
28. SURRENDER OF LEASE NOT MERGER. The voluntary or other
surrender of this Lease by Tenant, or a mutual cancellation thereof, shall
not work a merger and shall, at the option of Landlord, terminate all or any
existing subleases or subtenants, or may, at the option of Landlord, operate
as an assignment to Landlord of any or all such subleases or subtenants.
29. WAIVER. The waiver by either party of any breach of any term,
covenant or condition herein contained (or the acceptance by either party of
any performance after the time the same shall become due) shall not be deemed
to be a waiver of such term, covenant or condition or any subsequent breach
thereof or of any other term, covenant or condition herein contained, unless
otherwise expressly agreed to in writing. The acceptance by Landlord of any
sum less than that which is required to be paid by Tenant shall be deemed to
have been received only on account of the obligation for which it is paid (or
for which it is allocated by Landlord, in Landlord's absolute discretion, if
Tenant does not designate the obligation as to which the payment should be
credited), and shall not be deemed an accord and satisfaction notwithstanding
any provisions to the contrary written on any check or contained in any
letter of transmittal. The acceptance by Landlord of any sum tendered by a
purported assignee or transferee of Tenant shall not be deemed a consent by
Landlord to any assignment or transfer of Tenant's interest herein. No custom
or practice which may arise between the parties hereto in the administration
of the terms of this Lease shall be construed as a waiver or diminution of
either party's right to demand performance in strict accordance with the
terms of this Lease.
30. GENERAL.
30.1 CAPTIONS AND HEADINGS. The captions and paragraph
headings used in this Lease are for convenience of reference only. They shall
not be construed to limit or extend the meaning of any part of this Lease, and
shall not be deemed relevant in resolving any question of interpretation or
construction of any paragraph of this Lease.
30.2 DEFINITIONS.
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(a) LANDLORD. The term Landlord as used in this Lease, so
far as the covenants or obligations on the part of Landlord are concerned,
shall be limited to mean and include only the owner at the time in question
of the fee title to the Premises. In the event of any transfer(s) of such
interest, the Landlord herein named (and in case of any subsequent transfers
or conveyances, the then grantor) shall have no further liability under this
Lease to Tenant except as to matters of liability which have accrued and are
unsatisfied as of the date of such transfer, it being intended that the
covenants and obligations contained in this Lease on the part of Landlord
shall be binding on Landlord and its successors and assigns only during and
in respect of their respective periods of ownership of the fee; provided that
any funds in the possession of Landlord or the then grantor and as to which
Tenant has an interest, less any deductions permitted by law or this Lease,
shall be turned over to the grantee. The covenants and obligations contained
in this Lease on the part of Landlord shall, subject to the provisions of
this Paragraph 30.2(a), be binding upon each Landlord and such Landlord's
heirs, personal representatives, successors and assigns only during its
respective period of ownership. Except as provided in this Paragraph 30.2(a),
this Lease shall not be affected by any transfer of Landlord's interest in
the Premises, and Tenant shall attorn to any transferee of Landlord provided
that all of Landlord's obligations hereunder are assumed in writing by such
transferee.
(b) AGENTS. For purposes of this Lease and without otherwise
affecting the definition of the word "agent" or the meaning of an "agency",
the term "agents" shall be deemed to include the agents, employees, officers,
directors, servants, invitees, contractors, successors, representatives
subcontractors, guests, customers, suppliers, partners, affiliated companies,
and any other person or entity related in any way to the respective party,
Tenant or Landlord.
(c) INTERPRETATION OF TERMS. The words "Landlord" and
"Tenant" as used herein shall include the plural as well as the singular.
Words in the neuter gender include the masculine and feminine and words in
the masculine or feminine gender include the neuter.
30.3 COPIES. Any executed copy of this Lease shall be deemed
original for all purposes.
30.4 TIME OF ESSENCE. Time is of the essence as to each and
every provision in this Lease requiring performance within a specified time,
except as to the conditions relating to the delivery of possession of the
Premises to Tenant.
30.5 SEVERABILITY. In case any one or more of the provisions
contained herein shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Lease, but this Lease shall be
construed as if such invalid, illegal or unenforceable provision had not been
contained herein.
30.6 GOVERNING LAW. This Lease shall be construed and
enforced in accordance with the laws of the State of California.
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30.7 JOINT AND SEVERAL LIABILITY. If Tenant is more than one
person or entity, each such person or entity shall be jointly and severally
liable for the obligations of Tenant hereunder. If Tenant is a husband and
wife, the obligations hereunder shall extend to their sole and separate
property as well as community property.
30.8 CONSTRUCTION OF LEASE PROVISIONS. Although printed
provisions of this Lease were prepared by Landlord, this Lease shall not be
construed either for or against Tenant or Landlord, but shall be construed in
accordance with the general tenor of the language to reach a fair and
equitable result.
30.9 TENANT'S FINANCIAL STATEMENTS. Tenant hereby warrants
that all financial statements delivered by Tenant to Landlord are true,
correct, and complete, and prepared in accordance with generally accepted
accounting principles. Tenant acknowledges and agrees that Landlord is
relying on such financial statements in accepting this Lease, and that a
breach of Tenant's warranty as to such financial statements shall constitute
a Default by Tenant.
31. SIGNS. Tenant shall not place or permit to be placed any sign
or decoration on the exterior of the Premises or that would be visible from
the exterior of the Premises, without the prior written consent of Landlord,
which consent may be withheld in Landlord's reasonable discretion. In no
event shall any such sign revolve, rotate, move or create the illusion of
revolving, rotating or moving. Tenant, upon written notice by Landlord, shall
immediately remove any of Tenant's signs or decorations that are visible from
the exterior of the Premises or that Tenant has placed or permitted to be
placed on the exterior of the Premises without the prior written consent of
Landlord. If Tenant fails to so remove such sign or decoration within thirty
(30) days after Landlord's written notice, Landlord may enter the Premises
and remove such sign or decoration and Tenant shall pay Landlord, as
Additional Rent upon demand, the cost of such removal. All signs placed on
the Premises by Tenant shall comply with all recorded documents affecting the
Premises, including but not limited to any Declaration of Conditions,
Covenants and Restrictions: the sign criteria attached hereto as Exhibit "E",
if applicable (as the same may be amended from time to time); and applicable
statutes, ordinances, rules and regulations of governmental agencies having
jurisdiction thereof. At Landlord's option, Tenant shall at Lease Termination
remove any sign which it has placed on the Premises, and shall, at its sole
cost, repair any damage caused by the installation or removal of such sign.
32. LANDLORD NOT A TRUSTEE. Landlord shall not be deemed to be a
trustee of any funds paid to Landlord by Tenant (or held by Landlord for
Tenant) pursuant to this Lease, including without limitation the Security
Deposit. Landlord shall not be required to keep any such funds separate from
Landlord's general funds. Any funds held by Landlord pursuant to this Lease
shall not bear interest.
33. INTEREST. Any payment due from Tenant to Landlord, except for
Rent received by Landlord within thirty (30) days after the same is due,
shall bear interest from the date due until paid, at an annual rate equal to
the greater of: ten percent (10%); or five percent (5%) plus the rate
established by the Federal Reserve Bank of San Francisco, as of the
twenty-fifth (25th) day of the month immediately preceding the due date, on
advances to member banks under Sections
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13 and 13(a) of the Federal Reserve Act, as now in effect or hereafter from
time to time amended. In addition, Tenant shall pay all costs and attorneys'
fees incurred by Landlord in the collection of such amounts.
34. SURRENDER OF PREMISES. On the last day of the Lease Term or
upon the sooner termination of this Lease, Tenant shall, to the reasonable
satisfaction of Landlord, surrender the Premises to Landlord in good
condition (reasonable wear and tear excepted) with all originally painted
interior walls washed, or re-painted if marked or damaged and other interior
walls cleaned and repaired or replaced, all carpets cleaned and in good
condition, the air conditioning, ventilating and heating equipment inspected,
serviced and repaired by a reputable and licensed service firm (unless
Landlord has elected to maintain heating and air conditioning systems
pursuant to Paragraph 10.1 above), and all floors cleaned and waxed. Tenant
shall remove all of Tenant's personal property and trade fixtures from the
Premises, and all property not so removed shall be deemed abandoned by
Tenant. Furthermore, Tenant shall immediately repair all damage to the
Premises caused by any such removal. If the Premises are not so surrendered
at Lease Termination, Tenant shall indemnify, defend and hold Landlord
harmless from and against any loss, damage, expense, claim or liability
resulting from delay by Tenant in so surrendering the Premises including,
without limitation, any claims made by any succeeding tenant or losses to
Landlord due to lost opportunities to lease to succeeding tenants.
35. NO PARTNERSHIP OR JOINT VENTURE. Nothing in this Lease shall
be construed as creating a partnership or joint venture between Landlord,
Tenant, or any other party.
36. ENTIRE AGREEMENT. Any agreements, warranties, or
representations not expressly contained herein shall in no way bind either
Landlord or Tenant, and Landlord and Tenant expressly waive all claims for
damages by reason of any statement, representation, warranty, promise or
agreement, if any, not contained in this Lease. This Lease supersedes and
cancels any and all previous negotiations, arrangements, brochures,
agreements and understandings, whether written or oral, between Landlord and
its agents and Tenant and its agents with respect to the Premises, or this
Lease. This Lease, including the Addendum of even date, constitutes the
entire agreement between the parties hereto and no addition to, or
modification of, any term or provision of this Lease shall be effective until
and unless set forth in a written instrument signed by both Landlord and
Tenant.
37. SUBMISSION OF LEASE. Submission of this instrument for
Tenant's examination or execution does not constitute a reservation of space
nor an option to lease. This instrument shall not be effective until executed
by both Landlord and Tenant. Execution of this Lease by Tenant shall
constitute an offer by Tenant to lease the Premises, which offer shall be
deemed accepted by Landlord when this Lease is executed by Landlord and
delivered to Tenant.
38. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant
that so long as Tenant is not in Default under this Lease, Tenant shall and
may peaceably and quietly have, hold and enjoy the Premises for the Lease
Term, subject, however, to the terms of this Lease and of any mortgages or
deeds of trust affecting the Premises and/or the real property, and the
rights reserved by Landlord hereunder. Any purchaser upon any foreclosure or
exercise of the
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power of sale under any mortgage or deed of trust made by Landlord and
covering the Premises to whom Tenant attorns pursuant to Paragraph 20.4 above
shall be bound by the terms of this Paragraph 39.
39. AUTHORITY The undersigned parties hereby warrant that they
have proper authority and are empowered to execute this Lease on behalf of
the Landlord and Tenant, respectively. If Tenant is a corporation (or
partnership), Tenant represents that each individual executing this Lease on
behalf of said corporation (or partnership) is duly authorized to execute and
deliver this Lease on behalf of said corporation in accordance with a duly
adopted resolution of the Board of Directors of said corporation or in
accordance with the by-laws of said corporation (or on behalf of said
partnership in accordance with the partnership agreement of such
partnership), and that this Lease is binding upon said corporation (or
partnership) in accordance with its terms. If Tenant is a corporation, Tenant
shall upon 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. In the event Tenant should fail to
deliver such resolution to Landlord upon execution of this Lease, Landlord
shall not be deemed to have waived its right to require delivery of such
resolution, and at any time during the Lease Term Landlord may request Tenant
to deliver the same, and Tenant agrees it shall thereafter promptly deliver
such resolution to Landlord. If Tenant is a corporation, Tenant warrants that:
(a) Tenant is a valid and existing corporation;
(b) Tenant is qualified to do business in California; and
(c) The signers of this Lease are properly authorized to
execute this Lease.
40. OPTIONS TO EXTEND LEASE TERM.
40.1 GRANT OF OPTION. Landlord hereby grants to Tenant two
(2) options (collectively the "Options", and individually the "First Option"
and the "Second Option") to extend the initial Term of the Lease ("Initial
Term") for an additional five (5) years each (collectively the "Option
Terms", and individually the "First Option Term" and the "Second Option
Term") upon and subject to the terms and conditions set forth in this Lease.
Tenant shall have no right to extend the Initial Term except as provided
herein. The First Option shall be exercised, if at all, by Tenant's delivery
of written notice of exercise to Landlord no later than six (6) months nor
earlier than twelve (12) months prior to the expiration date of the Initial
Term. The Second Option shall be effective only if Tenant has exercised the
First Option. The Second Option shall be exercised, if at all, by Tenant's
delivery of written notice of exercise to Landlord no later than six (6)
months nor earlier than twelve (12) month prior to the expiration of the
First Option Term. The Rent to be paid during each Option Term shall be the
Prevailing Market Rental, as hereinafter defined. As used herein, the term
"Prevailing Market Rental" shall mean the rental and all other monetary
payments and escalations that Landlord could obtain from a third party tenant
which might desire to lease the Premises for the relevant Option Term, taking
into account the age of the Premises, the size of the Premises, the type and
quality of tenant improvements, the location and floor levels of the
Premises, the quality of construction of the
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Premises, the services provided under the terms of the Lease, the rental and
brokers commissions then being paid for the renewal of leases of space
comparable to the Premises in the City of Sunnyvale and all other factors
that would be relevant to a third party in determining the rental such party
would be willing to pay to lease the Premises for the relevant Option Term;
provided, however, in no event shall the Prevailing Market Rental be less
than the Rent payable by Tenant to Landlord at the expiration of the Initial
Term or First Option Term, as applicable. If Tenant is in Default under any
of the terms, covenants, or conditions of this Lease either at the time
Tenant exercises the relevant Option or at any time thereafter prior to the
commencement date of the relevant Option Term (the "First Option Commencement
Date" or "Second Option Commencement Date", as applicable), then in each
case, Tenant's exercise of the relevant Option shall be of no force and
effect and Tenant shall have no rights hereunder to extend the Initial Term
or First Option Term, as applicable. The rights granted pursuant to this
Article 41 are personal to Career Central, Inc. and are not assignable to any
other person except in conjunction with an assignment made pursuant to
Paragraph 12 of the Addendum.
40.2 DETERMINATION OF PREVAILING MARKET RENTAL. On or
before five (5) days after Tenant provides Landlord with notice of Tenant's
exercise of the relevant Option, Landlord and Tenant shall commence
negotiations to agree upon the Prevailing Market Rental applicable thereto.
If Landlord and Tenant are unable to reach agreement on the Prevailing Market
Rental within ten (10) days after the date negotiations commence, then the
Prevailing Market Rental shall be determined as follows:
(a) If Landlord and Tenant are unable to agree on the
Prevailing Market Rental within said ten (10) day period, then, within
fifteen (15) days thereafter, Landlord and Tenant shall each simultaneously
submit to the other in a sealed envelope its good faith estimate of the
Prevailing Market Rental. If the higher of such estimates is not more than
one hundred five percent (105%) of the lower of such estimates, then the
Prevailing Market Rental shall be the average of the two estimates; provided,
however, in no event shall the Prevailing Market Rental be less than the Rent
payable by Tenant to Landlord at the expiration of the Initial Term or First
Option Term, as applicable.
(b) If the matter is not resolved by the exchange of
estimates as provided in subparagraph (a) above, then either Landlord or
Tenant may, by written notice to the other on or before five (5) days after
the exchange of such estimates, require that the disagreement be resolved by
arbitration. Within seven (7) days after such notice, the parties shall
select as an arbitrator a mutually acceptable MAI appraiser with experience
in real estate activities, including at least ten (10) years' experience in
appraising office space in the County of Santa Clara, California. If the
parties cannot agree on an appraiser, then, within a second period of seven
(7) days, each party shall select an independent MAI appraiser meeting the
aforementioned criteria and, within a third period of seven (7) days, the two
appointed appraisers shall select a third appraiser meeting the
aforementioned criteria. If one party shall fail to make such appointment
within said second seven (7) day period, then the appraiser chosen by the
other party shall be the sole arbitrator.
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41. RIGHT TO NEGOTIATE.
41.1 GRANT OF RIGHT. Landlord currently owns the real
property and 59,885 square foot building located at 000 Xxxxxxxx Xxxxx,
Xxxxxxxxx, XX (the "Lakeside Building"). The Lakeside Building is currently
leased by Landlord to Xxxxxx Corporation which lease is scheduled to
terminate on September 30, 2002, subject to two (2) five (5) year options to
renew. If at any time during the term of this lease and provided that no
Event of Default by Tenant then exists, the Lakeside Building becomes or will
become available for lease, Landlord will notify Tenant in writing
("Landlord's Lease Notice"), and Tenant shall have the one-time right to
negotiate a lease of Lakeside Building on terms acceptable to Landlord and
Tenant in their respective absolute discretion. The right granted pursuant to
this Article 42 is personal to Career Central, Inc. and is not assignable to
any other person except in conjunction with an assignment made pursuant to
Paragraph 12 of the Addendum and shall not be binding on any
successor-in-interest of Landlord as to the Lakeside Building. If Landlord
and Tenant have not executed a lease on or before thirty (30) days following
Landlord's Lease Notice, then neither party shall have any further
obligations hereunder, and Landlord may negotiate with and accept offers from
third parties for the lease of all or a portion of the Lakeside Building on
such terms and conditions as Landlord may determine.
41.2 COUNTERPARTS. This Lease may be executed in multiple
counterparts, and any executed counterpart shall be deemed an original for
all purposes.
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IN WITNESS WHEREOF, the parties have executed this Lease effective as
of the date set forth below.
LANDLORD: TENANT:
OAKMEAD INVESTMENTS, a California CAREER CENTRAL CORPORATION, a
general partnership California corporation
By: /s/ Xxxxx Xxxx By: /s/ Xxxxxxx Xxxxx
------------------------------ ---------------------------------
Title: Partner Title: CEO
--------------------------- ------------------------------
DATE: By: /s/ Xxxxxxx Xxxxx
---------------------------- ---------------------------------
Title: CFO
------------------------------
DATE 3/22/00
--------------------------------
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EXHIBITS
A. Site Plan Paragraph 1.4 (Premises [building and exterior] shown
cross-hatched and outlined in red pursuant
to Paragraph 2.1)
B. Legal Description Paragraph 2.1
C. Improvement Agreement Paragraph 2.2
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EXHIBIT "A"
SITE PLAN
[To be Attached]
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EXHIBIT "B"
LEGAL DESCRIPTION
[To be Attached]
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EXHIBIT "C"
IMPROVEMENT AGREEMENT
This Improvement Agreement supplements the Net Lease Agreement (the
"Lease") dated this 22nd day of March, 2000, executed concurrently herewith by
and between Landlord and Tenant, covering certain premises described in the
Lease (the "Premises"). All terms not defined herein shall have the same meaning
as set forth in the Lease.
42. PLANS AND DRAWINGS FOR PREMISES
42.1 SPACE PLANS
Tenant shall, within ten (10) days of the Commencement Date,
cause its architect ("Tenant's Architect") to furnish for Landlord's approval
preliminary space plans sufficient to convey the architectural design of the
Premises (including special uses of the Premises to be specified by Tenant),
including, preliminary partition layout and reflective ceiling plans for
Tenant's leasehold improvements ("Space Plans"). If Landlord shall disapprove of
any part of the Space Plans, Landlord shall, within five (5) business days after
receipt thereof, advise Tenant in writing of Landlord's reasonable objections
thereto. Landlord and Tenant shall thereafter negotiate in good faith to revise
the Space Plans to remove Landlord's objections. After Landlord and Tenant have
reached such agreement, Tenant shall furnish to Landlord for review and approval
a revision of the Space Plans incorporating the revisions agreed to by Landlord
and Tenant. Landlord and Tenant shall each indicate their approval of the Space
Plans by initialing the same. Tenant shall pay all costs of preparation of the
Space Plans and other fees charged by Tenant's Architect directly to Tenant's
Architect.
42.2 WORKING DRAWINGS
Tenant's architect shall prepare from the approved Space Plans
complete architectural plans, drawings and specifications and complete
engineered mechanical, structural and electrical Working Drawings for (i) all of
the Premises showing the demising plan, finish schedule of building standard
items (i.e. carpeting and other floor coverings), and Tenant's design work
desired by Tenant therefor, and (ii) any internal or external communications or
special utility facilities which will require conduits or other improvements
(collectively "Final Working Drawings and Specifications"; the work shown
thereon being called the "Tenant's Work"), all in such form and in such detail
as may be reasonably required by Landlord. The Final Working Drawings and
Specifications shall be prepared by Tenant's architect and engineer and the
engineering work on the mechanical and electrical plans shall be performed by
Tenant's engineers. Tenant's architect and engineer shall furnish all services
necessary for the preparation of the Final Working Drawings and Specifications
and for securing approval by Landlord and for securing such approvals as, by
reason of the nature of the Tenant's Work, shall be required from any
governmental authority having jurisdiction or compliance deemed necessary by
Landlord including without limitation ACM (asbestos containing material),
hazardous wastes or materials, OSHA, CAL-OSHA, life-safety, sprinklers and the
like. Landlord shall reasonably approve or
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disapprove of the Final Working Drawings and Specifications within five (5)
business days after receipt thereof. If Landlord shall disapprove of any part
of the Final Working Drawings and Specifications, Landlord shall advise
Tenant of such disapproval, and the reasons therefor within said five (5)
business day period, and Landlord and Tenant shall thereafter negotiate in
good faith to remove Landlord's reasonable objections. Tenant shall then
submit to Landlord for Landlord's approval, a redesign of the Final Working
Drawings and Specifications incorporating the revisions agreed to by the
parties, which Landlord shall approve or disapprove in accordance with the
foregoing procedure. Final Working Drawings and Specifications shall comply
with all conditions set forth in Paragraph 1.3 below. Unless otherwise
specified in the Final Working Drawings and Specifications, Tenant shall use
building standard materials as determined by Landlord.
42.3 REQUIREMENTS OF FINAL WORKING DRAWINGS AND SPECIFICATIONS
The Final Working Drawings and Specifications shall: (i) be
subject to Landlord's reasonable approval; (ii) comply with all applicable laws
and ordinances, and the rules and regulations of all governmental authorities
having jurisdiction; (iii) comply with all ACM, hazardous waste, American with
Disabilities Act, OSHA, CAL-OSHA, life-safety, and sprinkler rules, regulations,
ordinances or laws; (iv) comply with all applicable insurance regulations for
the Building; (v) include locations and complete and exact dimensions, and (vi)
identify the improvements to be removed by Tenant upon termination of the Lease.
43. PAYMENT FOR WORK
43.1 Tenant shall provide the Tenant's Work pursuant to the mutually
approved Final Working Drawings and Specifications prepared by the Tenant's
Architect. The ownership and removal of Tenant's Work shall be determined as
provided in Section 9.3 of the Lease. Any and all improvements, compliance or
the like to any common areas, including without limitation, handicapping
requirements, Americans with Disabilities Act, ACM work, OSHA, CAL-OSHA,
life-safety, hazardous material work and corridors required as a result of the
work shown by the Final Working Drawings and Specifications or Tenant's specific
use of the Premises shall be paid by Tenant.
43.2 At such time as Landlord and Tenant have approved the Final
Working Drawings and Specifications, Tenant shall request a bid or bids for the
installation of the Tenant's Work from a contractor or contractors reasonably
acceptable to Landlord selected by Tenant. Tenant will accept the bid as
determined by Tenant. The bid from the contractor selected by Tenant shall be
used for purposes of preparing the Work Cost Estimates pursuant to Subparagraph
2.3 hereof. Tenant shall use reasonable efforts to obtain from Tenant's
contractor a one (1) year warranty against defects or repairs required for the
Tenant's Work.
43.3 Prior to the commencement of any Tenant's Work, Tenant shall
submit to Landlord, for Landlord's review, a written estimate of Work Cost as
hereinafter defined on all Tenant's Work which written estimate shall be based
on the Final Working Drawings and Specifications.
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44. CONSTRUCTION
44.1 Following the Early Occupancy Date and Landlord's receipt of the
Work Cost Statement, Tenant's contractor shall commence and diligently proceed
with the construction of all of the Tenant's Work, all at Tenant's sole cost and
expense, subject to delays beyond the reasonable control of Tenant or its
contractor or contractors. Tenant shall use its good faith effort to meet such
schedule as the same may be modified or amended.
45. WORK COST
"Work Cost" means: (i) governmental agency plan check, permit and other
fees; (ii) sales and other taxes; (iii) Title 24 fees; (iv) inspection costs;
(v) the actual costs and charges for material and labor, contractor's profit and
general overhead incurred by Tenant for the Tenant's Work; (vi) costs to comply
with all applicable laws, statutes, building codes and regulations relating to
Tenant's specific use of the Premises or the Tenant's Work (vii) all other costs
to be expended by Tenant in the construction of the Tenant's Work, (viii) cost
of fixtures and equipment installed in the Premises as part of the Tenant's
Work, and (x) costs of Tenant's construction manager. All Work Cost shall be
paid by Tenant on a timely basis.
46. TIMELINE.
Landlord and Tenant acknowledge the following tentative schedule as may
be amended by mutual agreement for completion of the Final Plans and
Specifications and construction of the Tenant's Work:
From the Effective Date of Lease:
30 days Preliminary Space Plans
60 days Preliminary Working Drawings
90 days Final Working Drawings and Permits
270 days Completion of one-half of Tenant's Work
540 days Completion of balance of Tenant's Work
47. INDEMNITY
For all Tenant's Work which Tenant constructs or installs or causes
to be constructed or installed in the Premises, Tenant shall and shall cause,
Tenant's Contractor and subcontractors, agents, employees and representatives
or each of them agree to save, indemnify and hold harmless Landlord against
any and all liability, claims, mechanics liens, judgments, or demands,
including demands arising from injuries to or death of persons (Tenant's
employees, employees of Tenant's Contractor(s) and employees of all
Subcontractors and Sub-subcontractors of Tenant's Contractor included) and
damage to property, or any other loss, loss of rent, damage, or expense,
arising directly or indirectly out of the obligations herein undertaken or
out of the operations conducted by Tenant and/or its Contractor(s),
Subcontractors or Sub-subcontractors, and will make good to and reimburse
Landlord for any expenditures, including actual attorneys' fees, which
Landlord may
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incur by reason of such matters and, if requested by Owner will defend any
such suits at the sole cost and expense of Tenant; provided, however, that
the foregoing indemnity shall not apply to any liability or damages to the
extent caused by the negligence, willful misconduct of or breach of this
Lease by Landlord.
48. INSURANCE
Tenant shall, at its sole expense, be responsible for the securing of
insurance by the Tenant's Contractor(s) and for the maintenance of same by the
Tenant's Contractor(s) until completion and final acceptance of the work.
Certificates of Insurance affording evidence of same shall be obtained from the
Tenant's Contractor(s) by the Tenant and delivered to the Landlord prior to the
commencement of any work by the Tenant's Contractor. The required insurance
coverage is as follows:
48.1 Worker's Compensation and Employers' Liability Insurance including
coverage under the U.S. Longshoremen's and Harborworkers' Act and affording 30
days written notice of cancellation to Contractor. The Employers' Liability
minimum limits required are as follows:
Bodily Injury by accident $100,000 each accident
-------
Bodily Injury by disease $500,000 policy limit
-------
Bodily Injury by disease $100,000 each employee
-------
48.2. General Liability Insurance on an Occurrence basis for an amount
of $5,000,000 for each occurrence and including the following coverage:
a) Premises and Operations coverage with X, C and U exclusions
deleted, if applicable.
b) Owners and Contractors Protective coverage.
c) Products and Completed Operations coverage.
d) Blanket Contractual coverage, including both oral and
written contracts.
e) Personal Injury coverage.
f) Broad Form Property Damage coverage, including completed
operations.
g) An endorsement naming Landlord and Landlord's Mortgagee as
additional insureds.
h) An endorsement affording 30 days written notice to
Contractor in event of cancellation or material reduction in
coverage.
i) An endorsement providing that such insurance as is afforded
under policy of Tenant's Contractor(s) is primary insurance as
respects the Owner and that any
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other insurance maintained by Owner is excess and
noncontributing with the insurance required hereunder.
No endorsement limiting or excluding a required coverage is permitted.
CLAIMS-MADE COVERAGE IS NOT ACCEPTABLE.
48.3 Business Auto Liability Insurance for an amount of $2,000,000
combined single limit for bodily injury and/or property damage liability
including:
a) Owned Autos,
b) Hired or Borrowed Autos,
c) Nonowned Autos, and
d) An endorsement affording 30 days written notice of
cancellation to Landlord in event of cancellation or material
reduction in coverage.
A certificate and endorsements affording evidence of the above requirements must
be delivered to Landlord before Tenant's Contractor performs any work at or
prepares or delivers materials to the site of construction.
Tenant shall require its Contractor(s) to require its subcontractors to provide
insurance where Tenant's Contractor(s) would be required to carry insurance
under this insurance section and to be responsible for obtaining the appropriate
certificates or other evidence of insurance.
Tenant's Contractor(s) shall maintain all of the foregoing insurance coverage in
force until the work under this agreement is fully completed and accepted except
as to 2c, (Products and Completed Operation Coverage), which is to be maintained
for one (1) year following completion of the Tenant's Work and acceptance by
Landlord and Tenant.
All insurance, except Workers' Compensation, maintained by Tenant's Contractor
and its subcontractors shall preclude subrogation claims by the insurer against
anyone insured thereunder. The requirements for the foregoing insurance shall
not derogate from the provisions for indemnification of Landlord by Tenant under
the "indemnity" paragraph of this agreement.
If the Tenant fails to secure and maintain the required insurance from Tenant(s)
Contractors, the Landlord shall have the right (without any obligation to do so,
however) to secure same in the name and for the account of the Tenant's
Contractor(s) in which event the Tenant shall pay the cost thereof and shall
furnish upon demand, all information that may be required in connection
therewith. Further, such failure to secure and maintain the required insurance
shall constitute a default under the Lease and Landlord shall be entitled to
immediately have all tenant improvement work cease.
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49. MISCELLANEOUS
(a) Tenant and Tenant's contractors shall abide by all safety and
construction rules and regulations which Landlord may reasonably establish in
performing the Tenant's Work. Entry by Tenant's contractors shall be deemed to
be under all the terms, covenants, provisions and conditions of said Lease
except the covenant to pay rent and additional rent. All Tenant's materials,
work, installations and decorations of any nature brought upon or installed in
the Premises shall be at Tenant's risk, and neither Landlord nor any party
acting on Landlord's behalf shall be responsible for any damage thereto or loss
or destruction thereof.
(b) Tenant shall be liable for any extra expenses incurred by reason of
faulty work done by Tenant or its contractors, or by reason of delays caused by
such work, or by reason of cleanup which fails to comply with Landlord's rules
and regulations.
(c) Tenant's contractors shall not post any signs other than those
required by law in connection with the construction on any part of the Project
or Premises.
50. INCORPORATION.
This Work Letter Agreement is hereby incorporated into this Lease
executed between Landlord and Tenant concurrently herewith.
TENANT:
CAREER CENTRAL CORPORATION
a California corporation
By: /s/ Xxxxxxx Xxxxx
--------------------------
Its: CEO
-------------------------
By: /s/ Xxxxxxx Xxxxx
--------------------------
Its: CFO
-------------------------
LANDLORD:
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XXXXXXX XXXXXXXXXX,
a California general partnership
By: /s/ Xxxxx Xxxx
---------------------------
Its: Partner
---------------------------
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FIRST ADDENDUM TO LEASE
THIS FIRST ADDENDUM TO LEASE (this "Addendum") is made by and between
OAKMEAD INVESTMENTS, a California general partnership ("Landlord"), and CAREER
CENTRAL, INC., a California corporation ("Tenant"), to be a part of that certain
Net Lease Agreement of even date herewith between Landlord and Tenant (the
"Lease") concerning the approximately 66,000 rentable square foot building (the
"Building") located at 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx (the
"Premises"). All terms with initial capital letters used herein as defined terms
shall have the meanings ascribed to them in the Lease unless specifically
defined herein. Landlord and Tenant agree that, notwithstanding anything to the
contrary in the Lease, the Lease is hereby modified and supplemented as follows:
1. CONDITION. Landlord warrants and represents that, as of the
Commencement Date, (i) the Premises will be in good and clean operating
condition and repair, (ii) the electrical, mechanical, HVAC, plumbing, sewer
and other systems serving the Premises and the Building will be in good
operating condition and repair, and (iii) the roof of the Building will be in
good condition and water tight. Landlord shall, promptly after receipt of
notice from Tenant, remedy any non-compliance with such warranty at
Landlord's sole cost and expense.
2. RULES AND REGULATIONS. Tenant shall not be required to comply
with any rule or regulation of Landlord unless the same does not unreasonably
interfere with Tenant's use of, access to, or parking at the Premises, and
does not materially increase the obligations or decrease the rights of Tenant
under the Lease.
3. HAZARDOUS MATERIALS. To the actual knowledge of Landlord, (a) no
Hazardous Material is present in the Building or the Premises or the soil,
surface water or groundwater thereof, (b) no underground storage tanks are
present on the Premises, and (c) no action, proceeding or claim is pending or
threatened regarding the Building or the Premises concerning any Hazardous
Material or pursuant to any environmental Law. Under no circumstance shall
Tenant be liable for any losses, costs, claims, liabilities or damages of any
type and nature arising out of or in connection with any Hazardous Material
present at any time in, on or about the Building, the Premises, or the soil,
air, improvements, groundwater or surface water thereof, or the violation of
any environmental law, rules, regulation, code or ordinance ("Law"), except
to the extent that any of the foregoing actually results from the release or
emission of Hazardous Material by Tenant or Tenant's agents, employees,
invitees, contractors and/or subcontractors in violation of applicable
environmental Laws.
4. TAXES. "Taxes" shall not include and Tenant shall not be required
to pay any tax or assessment expense or any increase therein (i) levied on
Landlord's rental income, unless such tax or assessment expense is imposed in
lieu of real property taxes; (ii) in excess of the amount which would be
payable if such tax or assessment expense were paid in installments over the
longest possible term; (iii) imposed on land and improvements other than the
Project; or (iv) attributable to Landlord's net income, inheritance, gift,
transfer, estate or state taxes. Tenant shall not be required to pay any
Taxes more than thirty (30) days prior to delinquency.
5. INDEMNITY. Landlord shall not be released or indemnified from any
losses, costs, claims, liabilities, or damages arising from the negligence or
willful misconduct of Landlord or its Agents or any breach of Landlord's
obligations or representations under the Lease.
6. REPAIRS AND MAINTENANCE. Landlord shall perform and construct, and
Tenant shall have no responsibility to perform or construct, any repair,
maintenance or improvements (a) necessitated by the acts or omissions of
Landlord or its Agents, employees, contractors or invitees, (b) occasioned by
fire, acts of God or other casualty or by the exercise of the power of
eminent domain, (c) for which Landlord has a right of reimbursement from
others, (d) which could be treated as a "capital expenditure" under generally
accepted accounting principles, (e) to the heating, ventilating, air
conditioning, electrical, water, sewer, and plumbing systems serving the
Premises or the Building, and (f) to any portion of the Building or the
Premises outside of the interior walls of the Premises. Tenant shall,
however, pay for its share of the repairs described in clauses (d), (e) and
(f) to the extent such costs are properly included as Operating Expenses. In
performing all repair and maintenance, Landlord shall use its best efforts to
minimize any disruption to Tenant.
7. OPERATING EXPENSES. "Operating Expenses" shall not include and
Tenant shall in no event have any obligation to perform or to pay directly,
or to reimburse Landlord for, all or any portion of the following repairs,
maintenance, improvements, replacements, premiums, claims, losses, fees,
charges, costs and expenses (collectively, "Costs"): (a) Costs occasioned by
the act, omission or violation of any Law by Landlord, or its Agents,
employees or contractors; (b) Costs occasioned by fire, acts of God, or other
casualties or by the exercise of the power of eminent domain; (c) Costs
incurred in connection with the violation by Landlord of the terms and
conditions of any lease or other agreement; (d) insurance costs for coverage
not customarily paid by tenants of similar projects in the vicinity of the
Premises, costs of earthquake insurance (unless Landlord is required to carry
earthquake insurance by an institutional lender holding a first mortgage or
deed of trust encumbering the Premises, in which case the commercially
reasonable premium for such insurance shall be an Operating Expense, provided
that such lender is generally requiring that all of its borrowers then carry
earthquake insurance on the lender's collateral in the San Francisco Bay
Area), flood or pollution insurance, insurance deductibles in excess of
$10,000, and co-insurance payments; (e) Costs incurred in connection with the
presence of any Hazardous Material, except to the extent caused by the
release of the Hazardous Material in question by Tenant, or its agents,
employees, invitees, contractors or subcontractors; (f) Costs in the nature
of depreciation, amortization or other expense reserves; (g) Costs to repair,
replace, restore or maintain the structural portions of the Building
(including structural roofs) unless such Costs are incurred due to the
negligence or willful misconduct of Tenant; (h) compensation for any employee
of Landlord or any compensation retained by Landlord or its affiliates for
management and administration of the Premises in excess of the reasonable
management fee which would be charged by an unaffiliated professional
management service for operation of comparable projects in the vicinity; and
(i) Costs which could properly be capitalized under generally accepted
accounting principals, except to the extent amortized over the useful life of
the capital item in question. Tenant shall have the right to audit Operating
Expenses and Taxes from time to time. If the results of such audit disclose
that Tenant has overpaid Operating Expenses or Taxes by more than five
percent (5%) of the accurate amount of Operating Expenses and Taxes payable
by Tenant, then Landlord shall pay the cost of such audit.
8. ALTERATIONS. Tenant may construct non-structural alterations,
additions and improvements ("Alterations") in the Premises without Landlord's
prior approval, if the cost of any such project does not exceed Twenty-Five
Thousand Dollars ($25,000). Landlord shall not have the right to require that
Tenant provide any payment or performance bonds for any Alterations unless
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the cost of any such project exceeds One Hundred Thousand Dollars ($100,000).
Alterations and Tenant's trade fixtures, furniture, equipment and other
personal property installed in the Premises ("Tenant's Property") shall at
all times be and remain Tenant's property. Except for Alterations which
cannot be removed without structural injury to the Premises, at any time
Tenant may remove Tenant's Property from the Premises, provided that Tenant
repairs all damage caused by such removal. Landlord shall have no right to
require Tenant to remove any Alterations unless it notifies Tenant at the
time it consents to such Alteration that it shall require such Alteration to
be removed. Landlord shall have no security interest or lien on any item of
Tenant's Property. Within ten (10) business days following Tenant's request,
Landlord shall execute documents reasonably acceptable to Tenant to evidence
Landlord's waiver of any right, title, lien or interest in Tenant's Property
and giving any lenders holding a security interest or lien on Tenant's
Property reasonable rights of access to the Premises to remove such Tenant's
Property, provided that such lenders repair any damage caused by such removal.
9. DAMAGE; CONDEMNATION. Landlord shall not have the right to
terminate the Lease and shall repair and restore the Premises if the damage
to the Premises is relatively minor (e.g., repair or restoration would cost
less than ten percent (10%) of the replacement cost of the Premises).
Whenever Rent is to be abated under the Lease, all Rent and Additional Rent
shall be equitably abated based upon the extent to which Tenant's use of the
Premises is diminished. Upon any Taking, Tenant shall have the right
separately to claim recovery for Tenant's reasonable costs of relocation.
10. RIGHT OF ACCESS. Landlord shall not exercise any rights of access
to the Premises, including under Section 18 of the Lease, if such exercise
would unreasonably interfere with Tenant's use of, access to, or parking at
the Premises or materially increase the obligations or decrease the rights of
Tenant under the Lease. Landlord shall use its best efforts to minimize any
disruption to Tenant and shall comply with Tenant's reasonable security
measures.
11. SUBORDINATION. The subordination of Tenant's rights and interest
under the Lease to any mortgage or deed of trust shall be contingent upon
Tenant's having received from any such mortgagee or beneficiary of any deed
of trust a written recognition agreement in a commercially reasonable form
providing that Tenant's rights and interest shall not be disturbed in the
event of any foreclosure of any such mortgage or deed of trust. Prior to the
Commencement Date, Landlord shall use reasonable efforts to deliver to Tenant
such a written recognition agreement from any mortgagee or beneficiary of any
deed of trust currently encumbering the Premises.
12. ASSIGNMENT AND SUBLETTING.
(a) Tenant may, without Landlord's prior written consent, without
giving rise to any right of Landlord to terminate the Lease as to any of the
Premises, and without payment of any amount to Landlord, sublet the Premises
or assign the Lease to (a) a subsidiary, affiliate, division or corporation
controlling, controlled by or under common control with Tenant, (b) a
successor corporation related to Tenant by merger, consolidation,
nonbankruptcy reorganization, or government action, or (c) a purchaser of
substantially all of Tenant's assets located in the Premises. Neither the
sale or transfer of Tenant's capital stock, including, without limitation, a
transfer in connection with the merger, consolidation or nonbankruptcy
reorganization of Tenant and any sale through any private or public offering,
nor the pledge of or grant of a security interest in any of the Tenant's
capital stock, nor the reincorporation of Tenant, shall be deemed an
assignment, subletting or other transfer of the Lease or the Premises. Tenant
may also, subject to Landlord's consent
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(which shall not be unreasonably withheld or delayed), but without giving
rise to any right of Landlord to terminate the Lease as to any of the
Premises and without payment of any amount to Landlord, sublet up to
forty-five percent (45%) of the Premises to a single subtenant for a term not
longer than twenty-one (21) months from the Commencement Date.
(b) Rent received by Tenant from any assignee or subtenant (other
than an assignee or subtenant pursuant to transactions described in paragraph
12 (a) above) shall be determined by deducting from the gross amounts thereof
all brokerage commissions and other marketing expenses paid or payable by
Tenant in connection with such assignment or sublease and all costs of
alterations and improvements to the Premises in connection with such sublease
or assignment.
13. SURRENDER. Tenant's obligations with respect to the surrender of
the Premises shall be fulfilled if Tenant surrenders possession of the
Premises in the condition existing at the Commencement Date (plus the
improvements constructed by Tenant pursuant to EXHIBIT "C" to the Lease),
excepting ordinary wear and tear, acts of God, casualties, condemnation,
Hazardous Materials (other than those released by Tenant), and Alterations or
other interior improvements which Tenant is not required to remove at the
termination of the Lease. Under no circumstance shall Tenant be required to
remove any of Tenant's improvements constructed at the Premises pursuant to
such EXHIBIT "C".
14. OPTIONS TO EXTEND. Prevailing Market Rental shall be determined by
taking into account Tenant's obligations to pay Operating Expenses and Taxes
as provided in the Lease. If the Prevailing Market Rental is to be determined
by arbitration, then, if only one appraiser is selected, that appraiser shall
notify the parties in simple letter form of its determination of the
Prevailing Market Rental within fifteen (15) business days following his/her
selection, which appraisal shall be conclusive and binding on the parties as
the Prevailing Market Rental. If multiple appraisers are selected, the
appraisers shall meet not later than fifteen (15) business days following the
selection of the last appraiser. At such meeting, the appraisers shall
attempt to determine the Prevailing Market Rental as of the termination date
of the Lease by agreement of at least two (2) of the appraisers. If two (2)
or more of the appraisers agree on the Prevailing Market Rental at the
initial meeting, such agreement shall be determinative and binding upon the
parties and the agreeing appraisers shall, in simple letter form executed by
the agreeing appraisers, forthwith notify both Landlord and Tenant of the
amount set by such agreement. If multiple appraisers are selected and two (2)
appraisers are unable to agree on the Prevailing Market Rental, then all
appraisers shall submit to Landlord and Tenant an independent appraisal of
the Prevailing Market Rental within twenty (20) business days following
appointment of the final appraiser. The parties shall then determine the
Prevailing Market Rental by averaging the appraisals, provided that any high
or low appraisal, differing from the middle appraisal by more than ten
percent (10%) of the middle appraisal, shall be disregarded.
15. TENANT WORK.
(a) Landlord shall cooperate reasonably with Tenant in providing
Tenant, Tenant's Architect, and Agents reasonable access to the Premises and
to Landlord's records regarding the construction of the Premises to
facilitate Tenant's preparation of Space Plans and Final Plans for Tenant's
Work. Landlord shall not unreasonably object to Tenant's Space Plans. If,
however, Landlord and Tenant are unable to agree upon the Space Plan within
twenty (20) days after the Commencement Date, then Tenant shall have the
right to terminate the Lease, whereupon
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Landlord shall refund to Tenant the security deposit under the Lease and all
Rentals previously paid by Tenant under the Lease to the extent allocable to
periods after the date of such termination.
(b) Promptly after the approval of the Space Plan, Tenant shall
cause proposed final plans ("Final Plans") and a work cost estimate ("Work
Cost Estimate") to be prepared based upon the preliminary Space Plan. Tenant
shall deliver to Landlord copies of the Final Plans and the Work Cost
Estimate promptly after completion. Within ten (10) days after receipt
thereof, Landlord shall either approve the Final Plans or deliver to Tenant
specific written changes required by Landlord to such plans; provided,
however, that Landlord shall not withhold its approval of such plans
unreasonably and shall not in any event withhold such approval if such
proposed Final Plans conform to the preliminary Space Plan. Landlord shall
not unreasonably withhold, condition or delay Landlord's approval of Tenant's
contractor or of any changes in the approved Final Plans requested by Tenant.
(c) Tenant shall have no responsibility for the following costs
associated with Tenant's Work: (i) costs incurred to remove Hazardous
Materials present at the Premises or the Building as of the Commencement
Date; (ii) costs recoverable by Landlord on account of warranties or
insurance; and (iii) construction management or other general overhead costs
incurred by Landlord.
16. APPROVALS. Whenever the Lease requires an approval, consent,
designation, determination, selection or judgment by either Landlord or
Tenant, such approval, consent, designation, determination, selection or
judgment and any conditions imposed thereby shall be reasonable and shall not
be unreasonably withheld or delayed and, in exercising any right or remedy
hereunder, each party shall at all times act reasonably and in good faith.
17. REASONABLE EXPENDITURES. Any expenditure by a party permitted or
required under the Lease, for which such party is entitled to demand and does
demand reimbursement from the other party, shall be limited to the fair market
value of the goods and services involved, shall be reasonably incurred, and
shall be substantiated by documentary evidence available for inspection and
review by the other party or its representative during normal business hours.
18. MEMORANDUM OF LEASE. Upon Tenant's request, Landlord shall execute,
acknowledge and deliver to Tenant a memorandum of the Lease which may be
recorded by Tenant in the Official Records of Santa Xxxxx County, California.
Upon the expiration of the term of the Lease, Tenant shall, upon Landlord's
request, execute, acknowledge and deliver to Landlord a quitclaim deed regarding
the Premises.
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IN WITNESS WHEREOF, the parties have executed this Addendum.
LANDLORD: TENANT:
OAKMEAD INVESTMENTS, CAREER CENTRAL, INC.,
a California general partnership a California corporation
By: /s/ Xxxxx Xxxx By: /s/ Xxxxxxx Xxxxx
----------------------------- ----------------------------
Name: Xxxxx Xxxx Name: Xxxxxxx Xxxxx
--------------------------- --------------------------
Title: Partner Title: CEO
--------------------------- --------------------------
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