EXHIBIT 10.6
STANDARD OFFICE LEASE-GROSS
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
[LOGO HERE] OMA Job No.
0000-0000-000
FFS # 10235.966
1. Basic Lease Provisions ("Basic Lease Provisions")
1.1 Parties: This Lease, dated, for reference purposes only, December
23, 1996, is made by and between OMA Del Aire Properties, a California general
partnership, (herein called "Lessor") and SiRF Technology, Inc., a California
corporation, doing business under the name of (herein called "Lessee").
1.2 Premises: Suite Number(s) 240 second floor, consisting of
approximately 2,820 feet more or less, as defined in paragraph 2 and as shown on
Exhibit "A" hereto ("the "Premises").
1.3 Building: Commonly described as being located at 0000 Xxxxxxx
Xxxxxxxxx Xxxxx, in the City of Los Angeles, County of Los Angeles, State of
California, as more particularly described in Exhibit A hereto, and as defined
in paragraph 2.
1.4: Use: General Office Purposes, subject to paragraph 6.
1.5 Term: Three (3) Years commencing as provided in paragraph 48
("Commencement Date") and ending as provided in paragraph 48, as defined in
paragraph 3.
1.6 Base Rent: $4,371.00 per month, payable on the 1st day of each
month, per paragraph 4.1 commencing on the Commencement Date
1.7 (Intentionally omitted)
1.8 Rent Paid Upon Execution: $4,371.00 for the first month of the
Term.
1.9 Security Deposit: $4.371.00
1.10 Lessee's Share of Operating Expense Increase: 4.2 % as defined
in paragraph 4.2.
2. Premises, Parking and Common Areas.
2.1 Premises: The Premises are a portion of a building, herein
sometimes referred to as the "Building" identified In paragraph 1.3 of the Basic
Lease Provisions. "Building" shall include adjacent parking structures used in
connection therewith. The Premises, the Building, the Common Areas, the land
upon which the same are located, along with all other buildings and improvements
thereon or thereunder, are herein collectively referred to as the "Office
Building Project." Lessor hereby leases to Lessee and Lessee leases from Lessor
for the term, at the rental, and upon all of the conditions set forth herein,
the real property referred to in the Basic Lease Provisions, paragraph 1.2. as
the "Premises," including rights to the Common Areas as hereinafter specified.
2.2 Vehicle Parking: So long as Lessee is not in default and subject
to the rules and regulations attached hereto, and as established by Lessor from
time to time, Lessee shall be entitled to rent and use 16 unreserved surface
parking spaces in the Office Building Project at the monthly rate applicable
from time to time for monthly parking as set by Lessor and/or its licensee.
2.2.1 If Lessee commits, permits or allows any of the prohibited
activities described in the Lease or the rules then in effect, then Lessor shall
have the right, without notice, in addition to such other rights and remedies
that it may have, to remove or tow away the vehicle involved and charge the cost
to Lessee, which cost shall be immediately payable upon demand by Lessor.
2.2.2 The monthly parking rate per parking space will be $ 35.00
per month at the commencement of the term of this Lease. Monthly parking fees
shall be payable one month in advance prior to the first day of each calendar
month.
2.3 Common Areas-Definition. The term "Common Areas" is defined as
all areas and facilities outside the Premises and within the exterior boundary
line of the Office Building Project that are provided and designated by the
Lessor from time to time for the general non-exclusive use of Lessor, Lessee and
of other lessees of the Office Building Project and their respective employees.
suppliers, shippers, customers and invitees, including but not limited to common
entrances, lobbies, corridors, stairways and stairwells, public restrooms,
elevators, escalators, parking areas to the extent not otherwise prohibited by
this Lease, loading and unloading areas, trash areas, roadways, sidewalks,
walkways, parkways, ramps, driveways, landscaped areas and decorative walls.
2.4 Common Areas-Rules and Regulations. Lessee agrees to abide by and
conform to the rules and regulations attached hereto as Exhibit B with respect
to the Office Building Project and Common Areas, and to cause its employees,
suppliers, shippers, customers, and invitees to so abide and conform. Lessor or
such other person(s) as Lessor may appoint shall have the exclusive control and
management of the Common Areas and shall have the right, from time to time, to
modify, amend and enforce said rules and regulations. Lessor shall not be
responsible to Lessee for the non-compliance with said rules and regulations by
other lessees, their agents, employees and invitees of the Office Building
Project.
2.5 Common Areas-Changes. Lessor shall have the right, in Lessor's
sole discretion, from time to time:
(a) To make changes to the Building interior and exterior and
Common Areas, including, without limitation, changes in the location, size,
shape, number, and appearance thereof, including but not limited to the lobbies,
windows, stairways, air shafts, elevators, escalators, restrooms, driveways,
entrances, parking spaces, parking areas, loading and unloading areas, ingress,
egress, direction of traffic, decorative walls, landscaped areas and walkways;
provided, however, Lessor shall at all times provide the parking facilities
required by applicable law.
(b) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains available;
(c) To designate other land and improvements outside the
boundaries of the Office Building Project to be a part of the Common Areas,
provided that such other land and improvements have a reasonable and functional
relationship to the Office Building Project;
(d) To add additional buildings and improvements to the Common
Areas;
(e) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Office Building Project, or any
portion thereof;
(f) To do and perform such other acts and make such other
changes in, to or with respect to the Common Areas and Office Building Project
as Lessor may, in the exercise of sound business judgment deem to be
appropriate.
3. Term.
3.1 Term. The term and Commencement Date of this Lease shall be as
specified in paragraph 1.5 of the Basic Lease Provisions.
3.2 Delay in Possession. Notwithstanding said Commencement Date, if
for any reason Lessor cannot deliver possession of the Premises to Lessee on
said date and subject to paragraph 3.2.2, Lessor shall not be subject to any
liability therefor, nor shall such failure affect the validity of this Lease or
the obligations of Lessee hereunder or extend the term hereof; but in such case,
Lessee shall not be obligated to pay rent or perform any other obligation of
Lessee under the terms of this Lease, except as may be otherwise provided in
this Lease, until possession of the Premises is tendered to Lessee, as
hereinafter defined; provided, however, that if Lessor shall not have delivered
possession of the Premises within sixty (60) days following said Commencement
Date, as the same may be extended under the terms of a Work Letter executed by
Lessor and Lessee, Lessee may, at Lessee's
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option, by notice in writing to Lessor within ten (10) days thereafter, cancel
this Lease, in which event the parties shall be discharged from all obligations
hereunder; provided, however, that, as to Lessee's obligations, Lessee first
reimburses Lessor for all costs incurred for Non-Standard Improvements and, as
to Lessor's obligations, Lessor shall return any money previously deposited by
Lessee (less any offsets due Lessor for Non-Standard Improvements); and provided
further, that if such written notice by Lessee is not received by Lessor within
said ten (10) day period, Lessee's right to cancel this Lease hereunder shall
terminate and be of no further force or effect.
3.2.1 Possession Tendered-Defined. Possession of the Premises
shall be deemed tendered to Lessee ("Tender of Possession") when (1) the
improvements to be provided by Lessor under this Lease are substantially
completed, (2) the Building utilities are ready for use in the Premises, (3)
Lessee has reasonable access to the Premises, and (4) ten (10) days shall have
expired following advance written notice to Lessee of the occurrence of the
matters described in (1), (2) and (3), above of this paragraph 3.2.1.
3.2.2 Delays Caused by Lessee. There shall be no abatement of
rent, and the sixty (60) day period following the Commencement Date before which
Lessee's right to cancel this Lease accrues under paragraph 3.2, shall be deemed
extended to the extent of any delays caused by acts or omissions of Lessee,
Lessee's agents, employees and contractors.
3.3 Early Possession. If Lessee occupies the Premises prior to said
Commencement Date, such occupancy shall be subject to all provisions of this
Lease, such occupancy shall not change the termination date, and Lessee shall
pay rent for such occupancy.
3.4 Uncertain Commencement. In the event commencement of the Lease
term is defined as the completion of the improvements, Lessee and Lessor shall
execute an amendment to this Lease establishing the date of Tender of Possession
(as defined in paragraph 3.2.1) or the actual taking of possession by Lessee,
whichever first occurs, as the Commencement Date.
4. Rent.
4.1 Base Rent. Subject to adjustment as hereinafter provided in
paragraph 4.3, and except as may be otherwise expressly provided in this Lease,
Lessee shall pay to Lessor the Base Rent for the Premises set forth in paragraph
1.6 of the Basic Lease Provisions, without offset or deduction. Lessee shall pay
Lessor upon execution hereof the advance Base Rent described in paragraph 1.8 of
the Base Lease Provisions. Rent for any period during the term hereof which is
for less than one month shall be prorated based upon the actual number of days
of the calendar month involved. Rent shall be payable in lawful money of the
United States to Lessor at the address stated herein or to such other persons or
at such other places as Lessor may designate in writing.
4.2 Operating Expense Increase. Lessee shall pay to Lessor during the
term hereof, in addition to the Base Rent, Lessee's Share, as hereinafter
defined, of the amount by which all Operating Expenses, as hereinafter defined,
for each Comparison Year exceeds the amount of all Operating Expenses for the
Base Year, such excess being hereinafter referred to as the "Operating Expense
Increase," in accordance with the following provisions:
(a) "Lessee's Share" is defined, for purposes of this Lease, as
the percentage set forth in paragraph 1.10 of the Basic Lease Provisions, which
percentage has been determined by dividing the approximate square footage of the
Premises by the total approximate square footage of the rentable space contained
in the Office Building Project. It is understood and agreed that the square
footage figures set forth in the Basic Lease Provisions are approximations which
Lessor and Lessee agree are reasonable and shall not be subject to revision
except in connection with an actual change in the size of the Premises or a
change in the space available for lease in the Office Building Project.
(b) "Base Year" is defined as the calendar year in which the
Lease term commences.
(c) "Comparison Year" is defined as each calendar year during
the term of this Lease subsequent to the Base Year; provided, however, Lessee
shall have no obligation to pay a share of the Operating Expense Increase
applicable to the first twelve (12) months of the Lease Term (other than such as
are mandated by a governmental authority, as to which government mandated
expenses Lessee shall pay Lessee's Share, notwithstanding they occur during the
first twelve (12) months). Lessee's Share of the Operating Expense Increase for
the first and last Comparison Years of this Lease Term shall be prorated
according to that portion of such Comparison Year as to which Lessee is
responsible for a share of such increase.
(d) "Operating Expenses" is defined, for purposes of this Lease,
to include all costs, if any, incurred by Lessor in the exercise of its
reasonable discretion, for:
(i) The operation, repair, maintenance, and replacement,
in neat, clean, safe, good order and condition, of the Office Building Project,
including but not limited to, the following:
(aa) The Common Areas, including their surfaces,
coverings, decorative items, carpets, drapes and window coverings, and including
parking areas, loading and unloading areas, trash areas, roadways, sidewalks,
walkways, stairways, parkways. driveways, landscaped areas, striping, bumpers,
irrigation systems, Common Area lighting facilities, building exteriors and
roofs, fences and gates;
(bb) All heating, air conditioning, plumbing,
electrical systems, life safety equipment telecommunication and other equipment
used in common by, or for the benefit of, lessees or occupants of the Office
Building Project, including elevators and escalators, tenant directories, fire
detection systems including sprinkler system maintenance and repair.
(ii) Trash disposal, janitorial and security services;
(iii) Any other service to be provided by Lessor that is
elsewhere in this Lease stated to be an "Operating Expense";
(vi) The cost of the premiums for the liability and
property insurance policies to be maintained by Lessor under paragraph 8 hereof;
(v) The amount of the real property taxes to be paid by
Lessor under paragraph 10.1 hereof;
(vi) The cost of water, sewer, gas, electricity, and other
publicly mandated services to the Office Building Project;
(vii) Labor, salaries and applicable fringe benefits and
costs, materials, supplies and tools, used in maintaining and/or cleaning the
Office Building Project and accounting and a management fee attributable to the
operation of the Office Building Project;
(viii) Replacing and/or adding improvements mandated by any
governmental agency and any repairs or removals necessitated thereby amortized
over its useful life according to Federal income tax regulations or guidelines
for depreciation thereof (including interest on the unamortized balance as is
then reasonable in the judgment of Lessor's accountants);
(ix) Replacements of equipment or improvements that have a
useful life for depreciation purposes according to Federal income tax guidelines
of five (5) years or less, as amortized over such life.
(e) Operating Expenses shall not include the costs of
replacements of equipment or improvements that have a useful life for Federal
income tax purposes in excess of five (5) years unless it is of the type
described in paragraph 4.2(d)(viii), in which case their cost shall be included
as above provided.
(f) Operating Expenses shall not include any expenses paid by
any lessee directly to third parties, or as to which Lessor is otherwise
reimbursed by any third party, other tenant, or by insurance proceeds.
(g) Lessee's Share of Operating Expense Increase shall be
payable by Lessee within ten (10) days after a reasonably detailed statement of
actual expenses is presented to Lessee by Lessor. At Lessor's option, however,
an amount may be estimated by Lessor from time to time in advance of Lessee's
Share of the Operating Expense Increase for any Comparison Year, and the same
shall be payable monthly or quarterly as Lessor shall designate, during each
Comparison Year of the Lease term, on the same day as the Base Rent is due
hereunder. In the event that Lessee pays Lessor's estimate of Lessee's Share of
Operating Expense Increase as aforesaid, Lessor shall deliver to Lessee within
sixty (60) days after the expiration of such Comparison Year a reasonably
detailed statement showing Lessee's Share of the actual Operating Expense
Increase incurred during such year. If Lessee's payments under this paragraph
4.2(g) during said Comparison Year exceed Lessee's Share as indicated on said
statement, Lessee shall be entitled to credit the amount of such overpayment
against Lessee's Share of Operating Expense Increase next falling due. If
Lessee's payments under this paragraph during said Comparison Year were less
than Lessee's Share as indicated on said statement, Lessee shall pay to Lessor
the amount of the deficiency within ten (10) days after delivery by Lessor to
Lessee of said statement. Lessor and Lessee shall forthwith adjust between them
by cash payment any balance determined to exist with respect to that portion of
the last Comparison Year for which Lessee is responsible as to Operating Expense
Increases, notwithstanding that the Lease term may have terminated before the
end of such Comparison Year.
4.3 (Intentionally omitted)
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5. Security Deposit. Lessee shall deposit with Lessor upon execution
hereof the security deposit set forth in paragraph 1.9 of the Basic Lease
Provisions as security for Lessee's faithful performance of Lessee's obligations
hereunder. If Lessee fails to pay rent or other charges due hereunder, or
otherwise defaults with respect to any provision of this Lease, Lessor may use,
apply or retain all or any portion of said deposit for the payment of any rent
or other charge in default for the payment of any other sum to which Lessor may
become obligated by reason of Lessee's default, or to compensate Lessor for any
loss or damage which Lessor may suffer thereby. If Lessor so uses or applies all
or any portion of said deposit, Lessee shall within ten (10) days after written
demand therefor deposit cash with Lessor in an amount sufficient to restore said
deposit to the full amount then required by Lessee. If the monthly Base Rent
shall, from time to time, increase during the term of this Lease, Lessee shall,
at the time of such increase, deposit with Lessor additional money as a security
deposit so that the total amount of the security deposit held by Lessor shall at
all times bear the same proportion to the then current Base Rent as the initial
security deposit bears to the initial Base Rent set forth in paragraph 1.6 of
the Basic Lease Provisions. Lessor shall not be required to keep said security
deposit separate from its general accounts. If Lessee performs all of Lessee's
obligations hereunder, said deposit, or so much thereof as has not heretofore
been applied by Lessor, shall be returned, without payment of interest or other
increment for its use, to Lessee (or, at Lessor's option, to the last assignee,
if any, of Lessee's interest hereunder) at the expiration of the term hereof,
and after Lessee has vacated the Premises. No trust relationship is created
herein between Lessor and Lessee with respect to said Security Deposit.
6. Use.
6.1 Use. The Premises shall be used and occupied only for the purpose
set forth in paragraph 1.4 of the Basic Lease Provisions and for no other
purpose.
6.2 Compliance with Law.
(a) Lessor warrants to Lessee that the Premises, in the state
existing on the date that the Lease term commences, but without regard to
alterations or improvements made by Lessee or the use for which Lessee will
occupy the Premises, does not violate any covenants or restrictions of record,
or any applicable building code, regulation or ordinance in effect on such Lease
term Commencement Date. In the event it is determined that this warranty has
been violated, then it shall be the obligation of the Lessor, after written
notice from Lessee, to promptly, at Lessor's sole cost and expense, rectify any
such violation.
(b) Except as provided in paragraph 6.2(a) Lessee shall, at
Lessee's expense, promptly comply with all applicable statutes, ordinances,
rules, regulations, orders, covenants and restrictions of record, and
requirements of any fire insurance underwriters or rating bureaus, now in effect
or which may hereafter come into effect, whether or not they reflect a change in
policy from that now existing, during the term or any part of the term hereof,
relating in any manner to the Premises and the occupation and use by Lessee of
the Premises. Lessee shall conduct its business in a lawful manner and shall not
use or permit the use of the Premises or the Common Areas in any manner that
will tend to create waste or a nuisance or shall tend to disturb other occupants
of the Office Building Project.
6.3 Condition of Premises.
(a) Lessor shall deliver the Premises to Lessee in a clean
condition on the Lease Commencement Date (unless Lessee is already in
possession) and Lessor warrants to Lessee that the plumbing, lighting, air
conditioning, and heating system in the Premises shall be in good operating
condition. In the event that it is determined that this warranty has been
violated, then it shall be the obligation of Lessor, after receipt of written
notice from Lessee setting forth with specificity the nature of the violation,
to promptly, at Lessor's sole cost, rectify such violation.
(b) Except as otherwise provided in this Lease, Lessee hereby
accepts the Premises and the Office Building Project in their condition existing
as of the Lease Commencement Date or the date that Lessee takes possession of
the Premises, whichever is earlier, subject to all applicable zoning, municipal,
county and state laws, ordinances and regulations governing and regulating the
use of the Premises, and any easements, covenants or restrictions of record, and
accepts this Lease subject thereto and to all matters disclosed thereby and by
any exhibits attached hereto. Lessee acknowledges that it has satisfied itself
by its own independent investigation that the Premises are suitable for its
intended use, and that neither Lessor nor Lessor's agent or agents has made any
representation or warranty as to the present or future suitability of the
Premises, Common Areas, or Office Building Project for the conduct of Lessee's
business.
7. Maintenance, Repairs, Alterations and Common Area Services.
7.1 Lessor's Obligations. Lessor shall keep the Office Building
Project, including the Premises, interior and exterior walls, roof, and common
areas, and the equipment whether used exclusively for the Premises or in common
with other premises, in good condition and repair; provided, however, Lessor
shall not be obligated to paint, repair of replace wall coverings, or to repair
or replace any improvements that are not ordinarily a part of the Building or
are above then Building standards. Except as provided in paragraph 9.5, there
shall be no abatement of rent or liability of Lessee on account of any injury or
interference with Lessee's business with respect to any improvements,
alterations or repairs made by Lessor to the Office Building Project or any part
thereof. Lessee expressly waives the benefits of any statute now or hereafter in
effect which would otherwise afford Lessee the right to make repairs at Lessor's
expense or to terminate this Lease because of Lessor's failure to keep the
Premises in good order, condition and repair.
7.2 Lessee's Obligations.
(a) Notwithstanding Lessor's obligation to keep the Premises
in good condition and repair, Lessee shall be responsible for payment of the
cost thereof to Lessor as additional rent for that portion of the cost of any
maintenance and repair of the Premises, or any equipment (wherever located) that
serves only Lessee or the Premises, to the extent such cost is attributable to
causes beyond normal wear and tear. Lessee shall be responsible for the cost of
painting, repairing or replacing wall coverings, and to repair or replace any
Premises improvements that are not ordinarily a part of the Building or that are
above then Building standards. Lessor may, at its option, upon reasonable
notice, elect to have Lessee perform any particular such maintenance or repairs
the cost of which is otherwise Lessee's responsibility hereunder.
(b) On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the Premises to Lessor in the same condition
as received, ordinary wear and tear excepted, clean and tree of debris. Any
damage or deterioration of the Promises shall not be deemed ordinary wear and
tear if the same could have been prevented by good maintenance practices by
Lessee. Lessee shall repair any damage to the Promises occasioned by the
installation or removal of Lessee's trade fixtures, alterations, furnishings and
equipment. Except as otherwise stated in this Lease, Lessee shall leave the air
lines, power panels, electrical distribution systems, lighting fixtures, air
conditioning, window coverings, wall coverings, carpets, wall panelling,
ceilings and plumbing on the Premises and in good operating condition.
7.3 Alterations and Additions.
(a) Lessee shall not, without Lessor's prior written consent
make any alterations, improvements, additional Utility Installations or repairs
in, on or about the Premises, or the Office Building Project. As used in this
paragraph 7.3 the term "Utility Installation" shall mean carpeting, window and
wall coverings, power panels, electrical distribution systems, lighting
fixtures, air conditioning, plumbing, and telephone and telecommunication wiring
and equipment. At the expiration of the term, Lessor may require the removal of
any or all of said alterations, improvements, additions or Utility
Installations, and the restoration of the Premises and the Office Building
Project to their prior condition, at Lessee's expense. Should Lessor permit
Lessee to make its own alterations, improvements, additions or Utility
Installations, Lessee shall use only such contractor as has been expressly
approved by Lessor, and Lessor may require Lessee to provide Lessor, at Lessee's
sole cost and expense, a lien and completion bond in an amount equal to one and
one-half times the estimated cost of such improvements, to insure Lessor against
any liability for mechanic's and materialmen's liens and to insure completion of
the work. Should Lessee make any alterations, improvements, additions or Utility
Installations without the prior approval of Lessor, or use a contractor not
expressly approved by Lessor, Lessor may, at any time during the term of this
Lease, require that Lessee remove any part or all of the same.
(b) Any alterations, improvements, additions or Utility
Installations in or about the Premises or the Office Building Project that
Lessee shall desire to make shall be presented to Lessor in written form, with
proposed detailed plans. If Lessor shall give its consent to Lessee's making
such alteration, improvement, addition or Utility Installation, the consent
shall be deemed conditioned upon Lessee acquiring a permit to do so from the
applicable governmental agencies, furnishing a copy thereof to Lessor prior to
the commencement of the work, and compliance by Lessee with all conditions of
said permit in a prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or
materials furnished or alleged to have been furnished to or for Lessee at or for
use in the Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Premises, the Building or the Office Building
Project, or any interest therein.
(d) Lessee shall give Lessor not less than ten (10) days'
notice prior to the commencement of any work in the Premises by Lessee, and
Lessor shall have the right to post notices of non-responsibility in or on the
Premises or the Building as provided by law. If Lessee shall, in good faith,
contest the validity of any such lien, claim or demand, then Lessee shall, at
its sole expense defend itself and Lessor against the same and shall pay and
satisfy
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any such adverse judgment that may be rendered thereon before the enforcement
thereof against the Lessor or the Premises, the Building or the Office Building
Project, upon the condition that if Lessor shall require, Lessee shall furnish
to Lessor a surety bond satisfactory to Lessor in an amount equal to such
contested lien claim or demand indemnifying Lessor against liability for the
same and holding the Premises, the Building and the Office Building Project free
from the effect of such lien or claim. In addition, Lessor may require Lessee to
pay Lessor's reasonable attorneys' fees and costs in participating in such
action if Lessor shall decide it is to Lessor's best interest so to do.
(e) All alterations, improvements, additions and Utility
Installations (whether or not such Utility Installations constitute trade
fixtures of Lessee), which may be made to the Premises by Lessee, including but
not limited to, floor coverings, panelings, doors, drapes, built-ins, moldings,
sound attenuation, and lighting and telephone or communication systems, conduit,
wiring and outlets, shall be made and done in a good and workmanlike manner and
of good and sufficient quality and materials and shall be the property of Lessor
and remain upon and be surrendered with the Premises at the expiration of the
Lease term, unless Lessor requires their removal pursuant to paragraph 7.3(a).
Provided Lessee is not in default, notwithstanding the provisions of this
paragraph 7.3(e), Lessee's personal property and equipment, other than that
which is affixed to the Premises so that it cannot be removed without material
damage to the Premises or the Building, and other than Utility Installations,
shall remain the property of Lessee and may be removed by Lessee subject to the
provisions of paragraph 7.2.
(f) Lessee shall provide Lessor with as-built plans and
specifications for any alterations, improvements, additions or Utility
Installations.
7.4 Utility Additions. Lessor reserves the right to install new or
additional utility facilities throughout the Office Building Project for the
benefit of Lessor or Lessee, or any other lessee of the Office Building Project,
including, but not by way of limitation, such utilities as plumbing, electrical
systems, communication systems, and fire protection and detection systems, so
long as such installations do not unreasonably interfere with Lessee's use of
the Premises.
8. Insurance; Indemnity.
8.1 Liability Insurance-Lessee. Lessee shall, at Lessee's expense,
obtain and keep in force during the term of this Lease a Policy of Comprehensive
General Liability insurance utilizing an Insurance Services Office standard form
with Broad Form General Liability Endorsement (GLO404), or equivalent, in an
amount of not less than $2,000,000 per occurrence of bodily injury and property
damage combined or in a greater amount as reasonably determined by Lessor and
shall insure Lessee with Lessor as an additional insured against liability
arising out of the use, occupancy or maintenance of the Premises. Compliance
with the above requirement shall not, however, limit the liability of Lessee
hereunder.
8.2 Liability Insurance-Lessor. Lessor shall obtain and keep in force
during the term of this Lease a policy of Combined Single Limit Bodily Injury
and Broad Form Property Damage Insurance, plus coverage against such other risks
Lessor deems advisable from time to time, insuring Lessor, but not Lessee,
against liability arising out of the ownership, use, occupancy or maintenance of
the Office Building Project in an amount not less than $5,000,000.00 per
occurrence.
8.3 Property Insurance-Lessee. Lessee shall, at Lessee's expense,
obtain and keep in force during the term of this Lease for the benefit of
Lessee, replacement cost fire and extended coverage insurance, with vandalism
and malicious mischief, sprinkler leakage and earthquake sprinkler leakage
endorsements, in an amount sufficient to cover not less than 100% of the full
replacement cost, as the same may exist from time to time, of all of Lessee's
personal property, fixtures, equipment and tenant improvements.
8.4 Property Insurance-Lessor. Lessor shall obtain and keep in force
during the term of this Lease a policy or policies of insurance covering loss or
damage to the Office Building Project Improvements, but not Lessee's personal
property, fixtures, equipment or tenant improvements, in the amount of the full
replacement cost thereof, as the same may exist from time to time, utilizing
Insurance Services Office standard form, or equivalent, providing protection
against all perils included within the classification of fire, extended
coverage, vandalism, malicious mischief, plate glass, and such other perils as
Lessor deems advisable or may be required by a lender having a lien on the
Office Building Project. In addition, Lessor shall obtain and keep in force,
during the term of this Lease, a policy of rental value insurance covering a
period of one year, with loss payable to Lessor, which insurance shall also
cover all Operating Expenses for said period. Lessee will not be named in any
such policies carried by Lessor and shall have no right to any proceeds
therefrom. The policies required by these paragraphs 8.2 and 8.4 shall contain
such deductibles as Lessor or the aforesaid lender may determine. In the event
that the Premises shall suffer an insured loss as defined in paragraph 9.1(f)
hereof, the deductible amounts under the applicable insurance policies shall be
deemed an Operating Expense. Lessee shall not do or permit to be done anything
which shall invalidate the insurance policies carried by Lessor. Lessee shall
pay the entirety of any increase in the property insurance premium for the
Office Building Project over what it was immediately prior to the commencement
of the term of this Lease if the increase is specified by Lessor's insurance
carrier as being caused by the nature of Lessee's occupancy or any act or
omission of Lessee.
8.5 Insurance Policies. Lessee shall deliver to Lessor copies of
liability insurance policies required under paragraph 8.1 or certificates
evidencing the existence and amounts of such insurance within seven (7) days
after the Commencement Date of this Lease. No such policy shall be cancellable
or subject to reduction of coverage or other modification except after thirty
(30) days prior written notice to Lessor. Lessee shall, at least thirty (30)
days prior to the expiration of such policies, furnish Lessor with renewals
thereof.
8.6 Waiver of Subrogation. Lessee and Lessor each hereby release and
relieve the other, and waive their entire right of recovery against the other
for direct or consequential loss or damage arising out of or incident to the
perils covered by property insurance carried by such party whether due to the
negligence of Lessor or Lessee or their agents, employees, contractors and/or
invitees. If necessary all property insurance policies required under this Lease
shall be endorsed to so provide.
8.7 Indemnity. Lessee shall indemnity and hold harmless Lessor and
its agents, Lessor's master or ground lessor, partners and lenders, from and
against any and all claims for damage to the person or property of anyone or any
entity arising from Lessee's use of the Office Building Project, or from the
conduct of Lessee's business or from any activity, work or things done,
permitted or suffered by Lessee in or about the Premises or elsewhere and shall
further indemnity and hold harmless Lessor from and against any and all claims,
costs and expenses arising from any breach or default in the performance of any
obligation on Lessee's part to be performed under the terms of this Lease, or
arising from any act or omission of Lessee, or any of Lessee's agents,
contractors, employees, or invitees, and from and against all costs, attorney's
fees, expenses and liabilities incurred by Lessor as the result of any such use,
conduct, activity, work, things done, permitted or suffered, breach, default or
negligence, and in dealing reasonably therewith, including but not limited to
the defense or pursuit of any claim or any action or proceeding involved
therein; and in case any action or proceeding be brought against Lessor by
reason of any such matter, Lessee upon notice from Lessor shall defend the same
at Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor
shall cooperate with Lessee in such defense. Lessor need not have first paid any
such claim in order to be so indemnified. Lessee, as a material part of the
consideration to Lessor, hereby assumes all risk of damage to property of Lessee
or injury to persons, in, upon or about the Office Building Project arising from
any cause and Lessee hereby waives all claims in respect thereof against Lessor.
8.8 Exemption of Lessor from Liability. Lessee hereby agrees that
Lessor shall not be liable for injury to Lessee's business or any loss of income
therefrom or for loss of or damage to the goods, wares, merchandise or other
property of Lessee, Lessee's employees, invitees, customers, or any other person
in or about the Premises or the Office Building Project, nor shall Lessor be
liable for injury to the person of Lessee, Lessee's employees, agents or
contractors, whether such damage or injury is caused by or results from theft,
fire, steam, electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures, or from any other cause, whether said
damage or injury results from conditions arising upon the Premises or upon other
portions of the Office Building Project, or from other sources or places, or
from new construction or the repair, alteration or improvement of any part of
the Office Building Project, or of the equipment, fixtures or appurtenances
applicable thereto, and regardless of whether the cause of such damage or injury
of the means of repairing the same is inaccessible, Lessor shall not be liable
for any damages arising from any act or neglect of any other lessee, occupant or
user of the Office Building Project, nor from the failure of Lessor to enforce
the provisions of any other lease of any other lessee of the Office Building
Project.
8.9 No Representation of Adequate Coverage. Lessor makes no
representation that the limits or forms of coverage of insurance specified in
this paragraph 8 are adequate to cover Lessee's property or obligations under
this Lease.
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Damage" shall mean if the Promises are damaged or
destroyed to any extent.
(b) "Premises Building Partial Damage" shall mean if the
Building of which the Premises are a part is damaged or destroyed to the extent
that the cost to repair is less than fifty percent (50%) of the then Replacement
Cost of the building.
(c) "Premises Building Total Destruction" shall mean if the
Building of which the Premises are a part is damaged or destroyed to the extent
that the cost to repair is fifty percent (50%) or more of the then Replacement
Cost of the Building.
(d) "Office Building Project Buildings" shall mean all of the
buildings on the Office Building Project site.
(e) "Office Building Project Buildings Total Destruction" shall
mean if the Office Building Project Buildings are damaged or destroyed to the
extent that the cost of repair is fifty percent (50%) or more of the then
Replacement Cost of the Office Building Project Buildings.
(f) "Insured Loss" shall mean damage or destruction which was
caused by an event required to be covered by the insurance described in
paragraph 8. The fact that an Insured Loss has a deductible amount shall not
make the loss an uninsured loss.
(g) "Replacement Cost" "shall mean the amount of money
necessary to be spent in order to repair or rebuild the damaged area to the
condition that existed immediately prior to the damage occurring, excluding all
improvements made by lessees, other than those installed by Lessor at Lessee's
expense.
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9.2 Premises Damage: Premises Building Partial Damage.
(a) Insured Loss: Subject to the provisions of paragraphs 9.4
and 9.5, if at any time during the term of this Lease there is damage which is
an Insured Loss and which falls into the classification of either Premises
Damage or Premises Building Partial Damage, then Lessor shall, as soon as
reasonably possible and to the extent the required materials and labor are
readily available through usual commercial channels, at Lessor's expense repair
such damage (but not Lessee's fixtures, equipment or tenant improvements
originally paid for by Lessee) to its condition existing at the time of the
damage, and this Lease shall continue in full force and effect.
(b) Uninsured Loss: Subject to the provisions of paragraphs 9.4
and 9.5, if at any time during the term of this Lease there is damage which is
not an Insured Loss and which falls within the classification of Premises Damage
or Premises Building Partial Damage, unless caused by a negligent or willful act
of Lessee (in which event Lessee shall make the repair at Lessee's expense),
which damage prevents Lessee from making any substantial use of the Premises.
Lessor may at Lessor's option either (i) repair such damage as soon as
reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or (ii) give written notice to Lessee within
thirty (30) days after the date of the occurrence of such damage of Lessor's
intention to cancel and terminate this Lease as of the date of the occurrence of
such damage, in which event this Lease shall terminate as of the date of the
occurrence of such damage.
9.3 Premises Building Total Destruction; Office Building Project
Total Destruction. Subject to the provisions of paragraphs 9.4 and 9.5, if at
any time during the term of this Lease there is damage, whether or not it is an
Insured Loss, which falls into the classifications of either (i) Premises
Building Total Destruction, or (ii) Office Building Project Total Destruction,
then Lessor may at Lessor's option either (i) repair such damage or destruction
as soon as reasonably possible at Lessor's expense (to the extent the required
materials are readily available through usual commercial channels) to its
condition existing at the time of the damage, but not Lessee's fixtures,
equipment or tenant improvements, and this Lease shall continue in full force
and effect, or (ii) give written notice to Lessee within thirty (30) days after
the date of occurrence of such damage of Lessor's intention to cancel and
terminate this Lease, in which case this Lease shall terminate as of the date of
the occurrence of such damage.
9.4 Damage Near End of Term.
(a) Subject to paragraph 9.4(b), if at any time during the last
twelve (12) months of the term of this Lease there is substantial damage to the
Premises, Lessor may at Lessor's option cancel and terminate this Lease as of
the date of occurrence of such damage by giving written notice to Lessee of
Lessor's election to do so within 30 days after the date of occurrence of such
damage.
(b) Notwithstanding paragraph 9.4(a), in the event that Lessee
has an option to extend or renew this Lease, and the time within which said
option may be exercised has not yet expired, Lessee shall exercise such option,
if it is to be exercised at all, no later than twenty (20) days after the
occurrence of an Insured Loss falling within the classification of Premises
Damage during the last twelve (12) months of the term of this Lease. If Lessee
duly exercises such option during said twenty (20) day period, Lessor shall, at
Lessor's expense, repair such damage, but not Lessee's fixtures, equipment or
tenant improvements, as soon as reasonably possible and this Lease shall
continue in full force and effect. If Lessee fails to exercise such option
during said twenty (20) day period, then Lessor may at Lessor's option terminate
and cancel this Lease as of the expiration of said twenty (20) day period by
giving written notice to Lessee of Lessor's election to do so within ten (10)
days after the expiration of said twenty (20) day period, notwithstanding any
term or provision in the grant of option to the contrary.
9.5 Abatement of Rent; Lessee's Remedies.
(a) In the event Lessor repairs or restores the Building or
Premises pursuant to the provisions of this paragraph 9, and any part of the
Premises are not usable (including loss of use due to loss of access or
essential services), the rent payable hereunder (including Lessee's Share of
Operating Expense Increase) for the period during which such damage, repair or
restoration continues shall be abated, provided (1) the damage was not the
result of the negligence of Lessee, and (2) such abatement shall only be to the
extent the operation and profitability of Lessee's business as operated from the
Premises is adversely affected. Except for said abatement of rent, if any,
Lessee shall have no claim against Lessor for any damage suffered by reason of
any such damage, destruction, repair or restoration.
(b) If Lessor shall be obligated to repair or restore the
Premises or the Building under the provisions of this Paragraph 9 and shall not
commence such repair or restoration within ninety (90) days after such
occurrence, or if Lessor shall not complete the restoration and repair within
six (6) months after such occurrence, Lessee may at Lessee's option cancel and
terminate this Lease by giving Lessor written notice of Lessee's election to do
so at any time prior to the commencement or completion, respectively, of such
repair or restoration. In such event this Lease shall terminate as of the date
of such notice.
(c) Lessee agrees to cooperate with Lessor in connection with
any such restoration and repair, including but not limited to the approval
and/or execution of plans and specifications required.
9.6 Termination-Advance Payments. Upon termination of this Lease
pursuant to this paragraph 9, an equitable adjustment shall be made concerning
advance rent and any advance payments made by Lessee to Lessor. Lessor shall, in
addition, return to Lessee so much of Lessee's security deposit as has not
theretofore been applied by Lessor.
9.7 Waiver. Lessor and Lessee waive the provisions of any statute
which relate to termination of leases when leased property is destroyed and
agree that such event shall be governed by the terms of this Lease.
10. Real Property Taxes.
10.1 Payment of Taxes. Lessor shall pay the real property tax, as
defined in paragraph 10.3, applicable to the Office Building Project subject to
reimbursement by Lessee of Lessee's Share of such taxes in accordance with the
provisions of paragraph 4.2, except as otherwise provided in paragraph 10.2.
10.2 Additional Improvements. Lessee shall not be responsible for
paying any increase in real property tax specified in the tax assessor's records
and work sheets as being caused by additional improvements placed upon the
Office Building Project by other lessees or by Lessor for the exclusive
enjoyment of any other lessee. Lessee shall, however, pay to Lessor at the time
that Operating Expenses are payable under paragraph 4.2(c) the entirety of any
increase in real property tax if assessed solely by reason of additional
improvements placed upon the Premises by Lessee or at Lessee's request.
10.3 Definition of "Real Property Tax". As used herein, the term "real
property tax" shall include any form of real estate tax or assessment, general,
special, ordinary or extraordinary, and any license fee, commercial rental tax,
improvement bond or bonds, levy or tax (other than inheritance, personal income
or estate taxes) imposed on the Office Building Project or any portion thereof
by any authority having the direct or indirect power to tax, including any city,
county, state or federal government or any school, agricultural, sanitary, fire,
street, drainage or other improvement district thereof, as against any legal or
equitable interest of Lessor in the Office Building Project or in any portion
thereof, as against Lessor's right to rent or other income therefrom, and as
against Lessor's business of leasing the Office Building Project. The term "real
property tax" shall also include any tax, fee, levy, assessment or charge (i) in
substitution of, partially or totally, any tax, fee, levy, assessment or charge
hereinabove included within the definition of "real property tax," or (ii) the
nature of which was hereinbefore included within the definition of "real
property tax," or (iii) which is imposed for a service or right not charged
prior to June 1, 1978, or, if previously charged, has been increased since June
1, 1978, or (iv) which is imposed as a result of a change in ownership, as
defined by applicable local statutes for property tax purposes, of the Office
Building Project or which is added to a tax or charge hereinbefore included
within the definition of real property tax by reason of such change of
ownership, or (v) which is imposed by reason of this transaction, any
modifications or changes hereto, or any transfers hereof.
10.4 Joint Assessment. If the improvements or property, the taxes for
which are to be paid separately by Lessee under paragraph 10.2 or 10.5 are not
separately assessed, Lessee's portion of that tax shall be equitably determined
by Lessor from the respective valuations assigned in the assessor's work sheets
or such other information (which may include the cost of construction) as may be
reasonably available. Lessor's reasonable determination thereof, in good faith,
shall be conclusive.
10.5 Personal Property Taxes.
(a) Lessee shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment and all other
personal property of Lessee contained in the Premises or elsewhere.
(b) If any of Lessee's said personal property shall be
assessed with Lessor's real property, Lessee shall pay to Lessor the taxes
attributable to Lessee within ten (10) days after receipt of a written statement
setting forth the taxes applicable to Lessee's property.
11. Utilities.
11.1 Services Provided by Lessor. Lessor shall provide heating,
ventilation, air conditioning, and janitorial service as reasonably required,
reasonable amounts of electricity for normal lighting and office machines, water
for reasonable and normal drinking and lavatory use, and replacement light bulbs
and/or fluorescent tubes and ballasts for standard overhead fixtures.
11.2 Services Exclusive to Lessee. Lessee shall pay for all water,
gas, heat, light, power, telephone and other utilities and services specially or
exclusively supplied and/or metered exclusively to the Premises or to Lessee,
together with any taxes thereon. If any such services are not separately metered
to the Premises, Lessee shall pay at Lessor's option, either Lessee's Share or a
reasonable proportion to be determined by Lessor of all charges jointly metered
with other premises in the Building.
11.3 Hours of Service. Said services and utilities shall be provided
during generally accepted business days and hours or such other days or hours as
may hereafter be set forth. Utilities and services required at other times shall
be subject to advance request and reimbursement by Lessee to Lessor of the cost
thereof.
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11.4 Excess Usage by Lessee. Lessee shall not make connection to the
utilities except by or through existing outlets and shall not install or use
machinery or equipment in or about the Premises that uses excess water, lighting
or power, or suffer or permit any act that causes extra burden upon the
utilities or services, including but not limited to security services, over
standard office usage for the Office Building Project. Lessor shall require
Lessee to reimburse Lessor for any excess expenses or costs that may arise out
of a breach of this subparagraph by Lessee. Lessor may, in its sole discretion,
install at Lessee's expense supplemental equipment and/or separate metering
applicable to Lessee's excess usage or loading
11.5 Interruptions. There shall be no abatement of rent and Lessor shall
not be liable in any respect whatsoever for the inadequacy, stoppage,
interruption or discontinuance of any utility or service due to riot, strike,
labor dispute, breakdown, accident, repair or other cause beyond Lessor's
reasonable control or in cooperation with governmental request or directions.
12. Assignment and Subletting.
12.1 Lessor's Consent Required. Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Lessee's interest in the Lease or in the Premises,
without Lessor's prior written consent, which Lessor shall not unreasonably
withhold. Lessor shall respond to Lessee's request for consent hereunder in a
timely manner and any attempted assignment, transfer, mortgage, encumbrance or
subletting without such consent shall be void, and shall constitute a material
default and breach of this Lease without the need for notice to Lessee under
paragraph 13.1. "Transfer" within the meaning of this paragraph 12 shall
include the transfer or transfers aggregating: (a) if Lessee is a corporation,
more than twenty-five percent (25%) of the voting stock of such corporation, or
(b) if Lessee is a partnership, more than twenty-five percent (25%) of the
profit and loss participation in such partnership.
12.2 Lessee Affiliate. Notwithstanding the provisions of paragraph 12.1
hereof, Lessee may assign or sublet the Premises, or any portion thereof,
without Lessor's consent, to any corporation which controls, is controlled by or
is under common control with Lessee, or to any corporation resulting from the
merger or consolidation with Lessee, or to any person or entity which acquires
all the assets of Lessee as a going concern of the business that is being
conducted on the Premises, all of which are referred to as "Lessee Affiliate";
provided that before such assignment shall be effective, (a) said assignee shall
assume, in full, the obligations of Lessee under this Lease and (b) Lessor shall
be given written notice of such assignment and assumption. Any such assignment
shall not, in any way, affect or limit the liability of Lessee under the terms
of this Lease even if after such assignment or subletting the terms of this
Lease are materially changed or altered without the consent of Lessee, the
consent of whom shall not be necessary.
12.3 Terms and Conditions Applicable to Assignment and Subletting.
(a) Regardless of Lessor's consent, no assignment or subletting
shall release Lessee of Lessee's obligations hereunder or alter the primary
liability of Lessee to pay the rent and other sums due Lessor hereunder
including Lessee's Share of Operating Expense Increase, and to perform all other
obligations to be performed by Lessee hereunder.
(b) Lessor may accept rent from any person other than Lessee pending
approval or disapproval of such assignment.
(c) Neither a delay in the approval or disapproval of such
assignment or subletting, nor the acceptance of rent, shall constitute a waiver
or estoppel of Lessor's right to exercise its remedies for the breach of any of
the terms or conditions of this paragraph 12 or this Lease.
(d) If Lessee's obligations under this Lease have been guaranteed by
third parties, then an assignment or sublease, and Lessor's consent
thereto,shall not be effective unless said guarantors give their written consent
to such sublease and the terms thereof.
(e) The consent by Lessor to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting by Lessee or to
any subsequent or successive assignment or subletting by the sublessee.
However, Lessor may consent to subsequent sublettings and assignments of the
sublease or any amendments or modifications thereto without notifying Lessee or
anyone else liable on the Lease or sublease and without obtaining their consent
and such action shall not relieve such persons from liability under this Lease
or said sublease; however, such persons shall not be responsible to the extent
any such amendment or modification enlarges or increases the obligations of the
Lessee or sublessee under this Lease or such sublease.
(f) In the event of any default under this Lease, Lessor may proceed
directly against Lessee, any guarantors or any one else responsible for the
performance of this Lease, including the sublessee, without first exhausting
Lessor's remedies against any other person or entity responsible therefor to
Lessor, or any security held by Lessor or Lessee.
(g) Lessor's written consent to any assignment or subletting of the
Promises by Lessee shall not constitute an acknowledgement that no default then
exists under this Lease of the obligations to be performed by Lessee nor shall
such consent be deemed a waiver of any then existing default, except as may be
otherwise stated by Lessor at the time.
(h) The discovery of the fact that any financial statement relied
upon by Lessor in giving Its consent to an assignment or subletting was
materially false shall, at Lessor's election, render Lessor's said consent null
and void.
12.4 Additional Terms and Conditions Applicable to Subletting. Regardless
of Lessor's consent, the following terms and conditions shall apply to any
subletting by Lessee of all or any part of the Premises and shall be deemed
included in all subleases under this Lease whether or not expressly incorporated
therein:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's
interest in all rentals and income arising from any sublease heretofore or
hereafter made by Lessee, and Lessor may collect such rent and income and apply
same toward Lessee's obligations under this Lease; provided. however, that
until a default shall occur in the performance of Lessee's obligations under
this Lease, Lessee may receive, collect and enjoy the rents accruing under such
sublease. Lessor shall not, by reason of this or any other assignment of such
sublease to Lessor nor by reason of the collection of the rents from a
sublessee, be deemed liable to the sublessee for any failure of Lessee to
perform and comply with any of Lessee's obligations to such sublessee under such
sublease. Lessee hereby irrevocably authorizes and directs any such sublessee,
upon receipt of a written notice from Lessor stating that a default exists in
the performance of Lessee's obligations under this Lease, to pay to Lessor the
rents due and to become due under the sublease. Lessee agrees that such
sublessee shall have the right to rely upon any such statement and request from
Lessor, and that such sublessee shall pay such rents to Lessor without any
obligation or right to inquire as to whether such default exists and
notwithstanding any notice from or claim from Lessee to the contrary. Lessee
shall have no right or claim against said sublessee or Lessor for any such rents
so paid by said sublessee to Lessor.
(b) No sublease entered into by Lessee shall be effective unless and
until it has been approved in writing by Lessor. In entering into any sublease,
Lessee shall use only such form of sublessee as is satisfactory to Lessor, and
once approved by Lessor, such sublease shall not be changed or modified without
Lessor's prior written consent. Any sublease shall, by reason of entering into
a sublease under this Lease, be deemed, for the benefit of Lessor, to have
assumed and agreed to conform and comply with each and every obligation herein
to be performed by Lessee other than such obligations as are contrary to or
inconsistent with provisions contained in a sublease to which Lessor has
expressly consented in writing.
(c) In the event Lessee shall default in the performance of its
obligations under this Lease, Lessor at its option and without any obligation to
do so, may require any sublessee to attorn to Lessor, in which event Lessor
shall undertake the obligations of Lessee under such sublease from the time of
the exercise of said option to the termination of such sublease; provided,
however, Lessor shall not be liable for any prepaid rents or security deposit
paid by such sublessee to Lessee or for any other prior defaults of Lessee under
such sublease.
(d) No sublessee shall further assign or sublet all or any part of
the Premises without Lessor's prior written consent.
(e) With respect to any subletting to which Lessor has consented,
Lessor agrees to deliver a copy of any notice of default by Lessee to the
sublessee. Such sublessee shall have the right to cure a default of Lessee
within three (3) days after service of said notice of default upon such
sublessee, and the sublessee shall have a right of reimbursement and offset from
and against Lessee for any such defaults cured by the sublessee.
12.5 Lessor's Expenses. In the event Lessee shall assign or sublet the
Premises or request the consent of Lessor to any assignment or subletting or if
Lessee shall request the consent of Lessor for any act Lessee proposes to do
then Lessee shall pay Lessor's reasonable costs and expenses incurred in
connection therewith, including attorneys', architects', engineers' or other
consultants' fees.
12.6 Conditions to Consent. Lessor reserves the right to condition any
approval to assign or sublet upon Lessor's determination that (a) the proposed
assignee or sublessee shall conduct a business on the Premises of a quality
substantially equal to that of Lessee and consistent with the general character
of the other occupants of the Office Building Project and not in violation of
any exclusives or rights then held by other tenants, and (b) the proposed
assignee or sublessee be at least as financially responsible as Lessee was
expected to be at the time of the execution of this Lease or of such assignment
or subletting, whichever is greater.
13. Default; Remedies.
13.1 Default. The occurrence of any one or more of the following events
shall constitute a material default of this Lease by Lessee:
(a) The vacation or abandonment of the Premises by Lessee. Vacation
of the Premises shall include the failure to occupy the Premises for a
continuous period of sixty (60) days or more, whether or not the rent is paid.
(b) The breach by Lessee of any of the covenants, conditions or
provisions of paragraphs 7.3(a), (b) or (d) (alterations), 12.1 (assignment or
subletting), 13.1(a) (vacation or abandonment), 13.1(e) (insolvency), 13.1(f)
(false statement), 16(a) (estoppel certificate), 30(b) (subordination), 33
(auctions), or 41.1 (easements), all of which are hereby deemed to be material,
non-curable defaults without the necessity of any notice by Lessor to Lessee
thereof.
(c) The failure by Lessee to make any payment of rent or any other
payment required to be made by Lessee hereunder, as and when due, where such
failure shall continue for a period of three (3) days after written notice
thereof from Lessor to Lessee. In the event that Lessor serves Lessee with a
Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes
such Notice to Pay Rent or Quit shall also constitute the notice required by
this subparagraph.
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(d) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Lessee other than those referenced in subparagraphs (b) and (c), above, where
such failure shall continue for a period of thirty (30) days after written
notice thereof from Lessor to Lessee; provided, however, that if the nature of
Lessee's noncompliance is such that more than thirty (30) days are reasonably
required for its cure, then Lessee shall not be deemed to be in default if
Lessee commenced such cure within said thirty (30) day period and thereafter
diligently pursues such cure to completion. To the extent permitted by law, such
thirty (30) day notice shall constitute the sole and exclusive notice required
to be given to Lessee under applicable Unlawful Detainer statutes.
(e) (i) The making by Lessee of any general arrangement or general
assignment for the benefit of creditors: (i) Lessee becoming a "debtor" as
defined in 11 U.S.C. (S)101 or any successor statute thereto (unless, in the
case of a petition filed against Lessee, the same is dismissed within sixty (60)
days; (iii) the appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where possession is not restored to Lessee within thirty
(30) days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where such seizure is not discharged within thirty (30)
days. In the event that any provision of this paragraph 13.1(e) is contrary to
any applicable law, such provision shall be of no force or effect.
(f) The discovery by Lessor that any financial statement given to
Lessor by Lessee, or its successor in interest or by any guarantor of Lessee's
obligation hereunder, was materially false.
13.2 Remedies. In the event of any material default or breach of this
Lease by Lessee, Lessor may at any time thereafter, with or without notice or
demand and without limiting Lessor in the exercise of any right or remedy which
Lessor may have by reason of such default:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall terminate and
Lessee shall immediately surrender possession of the Premises to Lessor. In
such event Lessor shall be entitled to recover from Lessee all damages incurred
by Lessor by reason of Lessee's default including, but not limited to, the cost
of recovering possession of the Premises: expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorneys' fees,
and any real estate commission actually paid; the worth at the time of award by
the court having jurisdiction thereof of the amount by which the unpaid rent for
the balance of the term after the time of such award exceeds the amount of such
rental loss for the same period that Lessee proves could be reasonably avoided;
that portion of the leasing commission paid by Lessor pursuant to paragraph 15
applicable to the unexpired term of this Lease.
(b) Maintain Lessee's right to possession in which case this Lease
shall continue in effect whether or not Lessee shall have vacated or abandoned
the Premises. In such event Lessor shall be entitled to enforce all of Lessor's
rights and remedies under this Lease, including the right to recover the rent as
it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the state wherein the Premises are
located. Unpaid installments of rent and other unpaid monetary obligations of
Lessee under the terms of this Lease shall bear interest from the date due at
the maximum rate then allowable by law.
13.3 Default by Lessor. Lessor shall not be in default unless Lessor
fails to perform obligations required of Lessor within a reasonable time, but in
no event later than thirty (30) days after written notice by Lessee to Lessor
and to the holder of any first mortgage or deed of trust covering the Premises
whose name and address shall have theretofore been furnished to Lessee in
writing, specifying wherein Lessor has failed to perform such obligation;
provided, however, that if the nature of Lessor's obligation is such that more
than thirty (30) days are required for performance then Lessor shall not be in
default if Lessor commences performance within such 30-day period and thereafter
diligently pursues the same to completion.
13.4 Late Charges. Lessee hereby acknowledges that late payment by
Lessee to Lessor of Base Rent, Lessee's Share of Operating Expense Increase or
other sums due hereunder will cause Lessor to incur costs not contemplated by
this Lease, the exact amount of which will be extremely difficult to ascertain.
Such costs include, but are not limited to, processing and accounting charges,
and late charges which may be imposed on Lessor by the terms of any mortgage or
trust deed covering the Office Building Project. Accordingly, if any
installment of Base Rent, Operating Expense Increase, or any other sum due from
Lessee shall not be received by Lessor or Lessor's designee within ten (10) days
after such amount shall be due, then, without any requirement for notice to
Lessee, Lessee shall pay to Lessor a late charge equal to 6% of such overdue
amount. The parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason of late payment by
Lessee. Acceptance of such late charge by Lessor shall in no event constitute a
waiver of Lessee's default with respect to such overdue amount, nor prevent
Lessor from exercising any of the other rights and remedies granted hereunder.
14. Condemnation. If the Premises or any portion thereof or the Office
Building Project are taken under the power of eminent domain, or sold under the
threat of the exercise of said power (all of which are herein called
"condemnation"), this Lease shall terminate as to the part so taken as of the
date the condemning authority takes title or possession, whichever first occurs;
provided that if so much of the Premises or the Office Building Project are
taken by such condemnation as would substantially and adversely affect the
operation and profitability of Lessee's business conducted from the Premises,
Lessee shall have the option, to be exercised only in writing within thirty (30)
days after Lessor shall have given Lessee written notice of such taking (or in
the absence of such notice, within thirty (30) days after the condemning
authority shall have taken possession), to terminate this Lease as of the date
the condemning authority takes such possession. If Lessee does not terminate
this Lease in accordance with the foregoing, this Lease shall remain in full
force and effect as to the portion of the Premises remaining, except that the
rent and Lessee's Share of Operating Expense Increase shall be reduced in the
proportion that the floor area of the Premises taken bears to the total floor
area of the Premises. Common Areas taken shall be excluded from the Common
Areas usable by Lessee and no reduction of rent shall occur with respect thereto
or by reason thereof. Lessor shall have the option in its sole discretion to
terminate this Lease as of the taking of possession by the condemning authority,
by giving written notice to Lessee of such election within thirty (30) days
after receipt of notice of a taking by condemnation of any part of the Premises
or the Office Building Project. Any award for the taking of all or any part of
the Premises or the Office Building Project under the power of eminent domain or
any payment made under threat of the exercise of such power shall be the
property of Lessor, whether such award shall be made as compensation for
diminution in value of the leasehold or for the taking of the fee, or as
severance damages; provided, however, that Lessee shall be entitled to any
separate award for loss of or damage to Lessee's trade fixtures, removable
personal property and unamortized tenant improvements that have been paid for by
Lessee. For that purpose the cost of such improvements shall be amortized over
the original term of this Lease excluding any options. In the event that this
Lease is not terminated by reason of such condemnation, Lessor shall to the
extent of severance damages received by Lessor in connection with such
condemnation, repair any damage to the Premises caused by such condemnation
except to the extent that Lessee has been reimbursed therefor by the condemning
authority, Lessee shall pay any amount in excess of such severance damages
required to complete such repair.
15. Broker's Fee.
(a) The brokers involved in this transaction are The Xxxxxx Company as
"listing broker" and The Xxxxxx Company as "cooperating broker," licensed real
estate broker(s). A "cooperating broker" is defined as any broker other than the
listing broker entitled to a share of any commission arising under this Lease.
Upon execution of this Lease by both parties, Lessor shall pay to said brokers
jointly, or in such separate shares as they may mutually designate in writing, a
fee as set forth in a separate agreement between Lessor and said broker(s).
(b) (Intentionally omitted)
(c) (Intentionally omitted)
(d) Lessee and Lessor each represent and warrant to the other that
neither has had any dealings with any person, firm, broker or finder (other than
the person(s), if any, whose names are set forth in paragraph 15(a), above) in
connection with the negotiation of this Lease and/or the consummation of the
transaction contemplated hereby, and no other broker or other person, firm or
entity is entitled to any commission or finder's fee in connection with said
transaction and Lessee and Lessor do each hereby indemnify and hold the other
harmless from and against any costs, expenses, attorneys' fees or liability for
compensation or charges which may be claimed by any such unnamed broker, finder
or other similar party by reason of any dealings or actions of the indemnifying
party.
16. Estoppel Certificate.
(a) Each party (as "responding party") shall at any time upon not less
than ten (10) days' prior written notice from the other party ("requesting
party") execute, acknowledge and deliver to the requesting party a statement in
writing (i) certifying that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and certifying
that this Lease, as so modified. is in full force and effect) and the date
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to which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to the responding party's knowledge, any
uncured defaults on the part of the requesting party, or specifying such
defaults if any are claimed. Any such statement may be conclusively relied upon
by any prospective purchaser or encumbrances of the Office Building Project or
of the business of Lessee
(b) At the requesting party's option, the failure to deliver such
statement within such time shall be a material default of this Lease by the
party who is to respond, without any further notice to such party, or it shall
be conclusive upon such party that (i) this Lease is in full force and effect,
without modification except as may be represented by the requesting party, (ii)
there are no uncured defaults in the requesting party's performance, and (iii)
if Lessor is the requesting party, not more than one month's rent has been paid
in advance.
(c) If Lessor desires to finance, refinance, or sell the Office Building
Project, or any part thereof, Lessee hereby agrees to deliver to any lender or
purchaser designated by Lessor such financial statements of Lessee as may be
reasonably required by such lender or purchaser. Such statements shall include
the past three (3) years' financial statements of Lessee. All such financial
statements shall be received by Lessor and such lender or purchaser in
confidence and shall be used only for the purposes herein set forth.
17. Lessor's Liability. The term "Lessor" as used herein shall mean only the
owner or owners, at the time in question, of the fee title or a lessee's
interest in a ground lease of the Office Building Project, and except as
expressly provided in paragraph 15, in the event of any transfer of such title
or interest, Lessor herein named (and in case of any subsequent transfers then
the grantor) shall be relieved from and after the date of such transfer of all
liability as respects Lessor's obligations thereafter to be performed, provided
that any funds in the hands of Lessor or the then grantor at the time of such
transfer, in which Lessee has an interest, shall be delivered to the grantee.
The obligations contained in this Lease to be performed by Lessor shall, subject
as aforesaid, be binding on Lessor's successors and assigns, only during their
respective periods of ownership.
18. Severability. The invalidity of any provision of this Lease as determined
by a court of competent jurisdiction shall in no way affect the validity of any
other provision hereof.
19. Interest on Past-due Obligations. Except as expressly herein provided, any
amount due to Lessor not paid when due shall bear interest at the maximum rate
then allowable by law or judgments from the date due. Payment of such interest
shall not excuse or cure any default by Lessee under this Lease; provided,
however, that interest shall not be payable on late charges incurred by Lessee
nor on any amounts upon which late charges are paid by Lessee.
20. Time of Essence. Time is of the essence with respect to the obligations to
be performed under this Lease.
21. Additional Rent. All monetary obligations of Lessee to Lessor under the
terms of this Lease, including but not limited to Lessee's Share of Operating
Expense Increase and any other expenses payable by Lessee hereunder shall be
deemed to be rent.
22. Incorporation of Prior Agreements; Amendments. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
or contemporaneous agreement or understanding pertaining to any such matter
shall be effective. This Lease may be modified in writing only, signed by the
parties in interest at the time of the modification. Except as otherwise stated
in this Lease, Lessee hereby acknowledges that neither the real estate broker
listed in paragraph 15 hereof nor any cooperating broker on this transaction nor
the Lessor or any employee or agents of any of said persons has made any oral or
written warranties or representations to Lessee relative to the condition or use
by Lessee of the Premises or the Office Building Project and Lessee acknowledges
that Lessee assumes all responsibility regarding the Occupational Safety Health
Act, the legal use and adaptability of the Promises and the compliance thereof
with all applicable laws and regulations in effect during the term of this
Lease.
23. Notices. Any notice required or permitted to be given hereunder shall be
in writing and may be given by personal delivery or by certified or registered
mail, and shall be deemed sufficiently given if delivered or addressed to Lessee
or to Lessor at the address noted below or adjacent to the signature of the
respective parties, as the case may be. Mailed notices shall be deemed given
upon actual receipt at the address required, or forty-eight hours following
deposit in the mail, postage prepaid, whichever first occurs. Either party may
by notice to the other specify a different address for notice purposes except
that upon Lessee's taking possession of the Premises, the Premises shall
constitute Lessee's address for notice purposes. A copy of all notices required
or permitted to be given to Lessor hereunder shall be concurrently transmitted
to such party or parties at such addresses as Lessor may from time to time
hereafter designate by notice to Lessee.
24. Waivers. No waiver by Lessor of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Lessee of
the same or any other provision. Lessor's consent to, or approval of, any act
shall not be deemed to render unnecessary the obtaining of Lessor's consent to
or approval of any subsequent act by Lessee. The acceptance of rent hereunder
by Lessor shall not be a waiver of any preceding breach by Lessee of any
provision hereof, other than the failure of Lessee to pay the particular rent so
accepted, regardless of Lessor's knowledge of such preceding breach at the time
of acceptance of such rent.
25. Recording. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a "short form" memorandum of this
Lease for recording purposes.
26. Holding Over. If Lessee, with Lessor's consent, remains in possession of
the Premises or any part thereof after the expiration of the term hereof, such
occupancy shall be a tenancy from month to month upon all the provisions of this
Lease pertaining to the obligations of Lessee, except that the rent payable
shall be two hundred percent (200%) of the rent payable immediately preceding
the termination date of this Lease, and all Options, if any, granted under the
terms of this Lease shall be deemed terminated and be of no further effect
during said month to month tenancy.
27. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
28. Covenants and Conditions. Each provision of this Lease performable by
Lessee shall be deemed both a covenant and a condition.
29. Binding Effect; Choice of Law. Subject to any provisions hereof
restricting assignment or subletting by Lessee and subject to the provisions of
paragraph 17, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the State
where the Office Building Project is located and any litigation concerning this
Lease between the parties hereto shall be initiated in the county in which the
Office Building Project is located.
30. Subordination.
(a) This Lease, and any Option or right of first refusal granted hereby,
at Lessor's option, shall be subordinate to any ground lease, mortgage, deed of
trust, or any other hypothecation or security now or hereafter placed upon the
Office Building Project and to any and all advances made on the security thereof
and to all renewals, modifications, consolidations, replacements and extensions
thereof. Notwithstanding such subordination, Lessee's right to quiet possession
of the Premises shall not be disturbed if Lessee is not in default and so long
as Lessee shall pay the rent and observe and perform all of the provisions of
this Lease, unless this Lease is otherwise terminated pursuant to its terms. If
any mortgagee, trustee or ground lessor shall elect to have this Lease and any
Options granted hereby prior to the lien of its mortgage, deed of trust or
ground lease, and shall give written notice thereof to Lessee, this Lease and
such Options shall be deemed prior to such mortgage, deed of trust or ground
lease, whether this Lease or such Options are dated prior or subsequent to the
date of said mortgage, deed of trust or ground lease or the date of recording
thereof.
(b) Lessee agrees to execute any documents required to effectuate an
attornment, a subordination, or to make this Lease or any Option granted herein
prior to the lien of any mortgage, deed of trust or ground lease, as the case
may be. Lessee's failure to execute such documents within ten (10) days after
written demand shall constitute a material default by Lessee hereunder without
further notice to Lessee or, at Lessor's option, Lessor shall execute such
documents on behalf of Lessee as Lessee's attorney-in-fact. Lessee does hereby
make, constitute and irrevocably appoint Lessor as Lessee's attorney-in-fact and
in Lessee's name, place and stead, to execute such documents in accordance with
this paragraph 30(b).
31. Attorneys' Fees.
31.1 If either party named herein bring an action to enforce the terms
hereof or declare rights hereunder, the prevailing party in any such action,
trial or appeal thereon, shall be entitled to his reasonable attorneys' fees to
be paid by the losing party as fixed by the court in the same or a separate
suit, and whether or not such action is pursued to decision or judgment.
31.2 The attorneys' fee award shall not be computed in accordance with
any court fee schedule, but shall be such as to fully reimburse all attorneys'
fees reasonably incurred in good faith.
31.3 Lessor shall be entitled to reasonable attorneys' fees and all other
costs and expenses incurred in the preparation and service of notice of default
and consultations in connection therewith, whether or not a legal transaction is
subsequently commenced in connection with such default.
32. Lessor's Access.
32.1 Lessor and Lessor's agents shall have the right to enter the
Premises at reasonable times for the purpose of inspecting the same, performing
any services required of Lessor, showing the same to prospective purchasers,
lenders, or lessees, taking such safety measures, erecting such scaffolding or
other necessary structures, making such alterations, repairs, improvements or
additions to the Premises or to the Office Building Project as Lessor may
reasonably deem necessary or desirable and the erecting, using and maintaining
of utilities, services, pipes and conduits through the Premises and/or other
premises as long as there is no material adverse effect to Lessee's use of the
Premises. Lessor may at any time place on or about the Premises or the Building
any ordinary "For Sale" signs and Lessor may at any time during the last 120
days of the term hereof place on or about the Premises any ordinary "For Lease"
signs.
32.2 All activities of Lessor pursuant to this paragraph shall be without
abatement of rent, nor shall Lessor have any liability to Lessee for the same.
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32.3 Lessor shall have the right to retain keys to the Premises and to
unlock all doors in or upon the Premises other than to files, vaults and safes
and in the case of emergency to enter the Premises by any reasonably appropriate
means, and any such entry shall not be deemed a forceable or unlawful entry or
detainer of the Premises or an eviction. Lessee waives any charges for damages
of injuries or interference with Lessee's property or business in connection
therewith.
33. Auctions. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises or the Common Areas
without first having obtained Lessor's prior written consent. Notwithstanding
anything to the contrary in this Lease, Lessor shall not be obligated to
exercise any standard of reasonableness in determining whether to grant such
consent. The holding of any auction on the Premises or Common Areas in
violation of this paragraph shall constitute a material default of this Lease.
34. Signs. Lessee shall not place any sign upon the Premises or the Office
Building Project without Lessor's prior written consent. Under no circumstances
shall Lessee place a sign on any roof of the Office Building Project.
35. Merger. The voluntary or other surrender of this Lease by Lessee, or a
mutual cancellation thereof, or a termination by Lessor, shall not work a
merger, and shall, at the option of Lessor, terminate all or any existing
subtenancies or may, at the option of Lessor, operate as an assignment to Lessor
of any or all of such subtenancies.
36. Consents. Except for paragraphs 33 (auctions) and 34 (signs) hereof,
wherever in this Lease the consent of one party is required to an act of the
other party such consent shall not be unreasonably withheld or delayed.
37. Guarantor. In the event that there is a guarantor of this Lease, said
guarantor shall have the same obligations as Lessee under this Lease.
38. Quiet Possession. Upon Lessee paying the rent for the Premises and
observing and performing all of the covenants, conditions and provisions on
Lessee's part to be observed and performed hereunder, Lessee shall have quiet
possession of the Premises for the entire term hereof subject to all of the
provisions of this Lease. The individuals executing this Lease on behalf of
Lessor represent and warrant to Lessee that they are fully authorized and
legally capable of executing this Lease on behalf of Lessor and that such
execution is binding upon all parties holding an ownership interest in the
Office Building Project.
39. Options.
39.1 Definition. As used in this paragraph the word "Option" has the
following meaning: (1) the right or option to extend the term of this Lease or
to renew this Lease or to extend or renew any lease that Lessee has on other
property of Lessor; (2) the option of right of first refusal to lease the
Premises or the right of first offer to lease the Premises or the right of first
refusal to lease other space within the Office Building Project or other
property of Lessor or the right of first offer to lease other space within the
Office Building Project or other property of Lessor; (3) the right or option to
purchase the Premises or the Office Building Project, or the right of first
refusal to purchase the Premises or the Office Building Project or the right of
first otter to purchase the Premises or the Office Building Project, or the
right or option to purchase other property of Lessor, or the right of first
refusal to purchase other property of Lessor or the right of first offer to
purchase other property of Lessor.
39.2 Options Personal. Each Option granted to Lessee in this Lease is
personal to the original Lessee and may be exercised only by the original Lessee
while occupying the Premises who does so without the intent of thereafter
assigning this Lease or subletting the Premises or any portion thereof, and may
not be exercised or be assigned, voluntarily or involuntarily, by or to any
person or entity other than Lessee; provided, however, that an Option may be
exercised by or assigned to any Lessee Affiliate as defined in paragraph 12.2 of
this Lease. The Options, if any, herein granted to Lessee are not assignable
separate and apart from this Lease, nor may any Option be separated from this
Lease in any manner, either by reservation or otherwise.
39.3 Multiple Options. In the event that Lessee has any multiple options
to extend or renew this Lease a later option cannot be exercised unless the
prior option to extend or renew this Lease has been so exercised.
39.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary, (i) during
the time commencing from the date Lessor gives to Lessee a notice of default
pursuant to paragraph 13.1(c) or 13.1(d) and continuing until the noncompliance
alleged in said notice of default is cured, or (ii) during the period of time
commencing on the day after a monetary obligation to Lessor is due from Lessee
and unpaid (without any necessity for notice thereof to Lessee) and continuing
until the obligation is paid, or (iii) in the event that Lessor has given to
Lessee three or more notices of default under paragraph 13.1(c), or paragraph
13.1(d), whether or not the defaults are cured, during the 12 month period of
time immediately prior to the time that Lessee attempts to exercise the subject
Option, (iv) if Lessee has committed any non-curable breach, including without
limitation those described in paragraph 13.1(b), or is otherwise in default of
any of the terms, covenants or conditions of this Lease.
(b) The period of time within which an Option may be exercised shall
not be extended or enlarged by reason of Lessee's inability to exercise an
Option because of the provisions of paragraph 39.4(a).
(c) All rights of Lessee under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding Lessee's due and
timely exercise of the Option, if, after such exercise and during the term of
this Lease, (i) Lessee fails to pay to Lessor a monetary obligation of Lessee
for a period of thirty (30) days after such obligation becomes due (without any
necessity of Lessor to give notice thereof to Lessee), or (ii) Lessee fails to
commence to cure a default specified in paragraph 13.1(d) within thirty (30)
days after the date that Lessor gives notice to Lessee of such default and/or
Lessee fails thereafter to diligently prosecute said cure to completion, or
(iii) Lessor gives to Lessee three or more notices of default under paragraph
13.1(c), or Paragraph 13.1(d), whether or not the defaults are cured, or (iv) if
Lessee has committed any non-curable breach, including without limitation those
described in paragraph 13.1(b), or is otherwise in default of any of the terms,
covenants and conditions of this Lease.
40. Security Measures-Lessor's Reservations.
40.1 Lessee hereby acknowledges that Lessor shall have no obligation
whatsoever to provide guard service or other security measures for the benefit
of the Premises or the Office Building Project. Lessee assumes all
responsibility for the protection of Lessee, its agents, and invitees and the
property of Lessee and of Lessee's agents and invitees from acts of third
parties. Nothing herein contained shall prevent Lessor, at Lessor's sole
option, from providing security protection for the Office Building Project or
any part thereof, in which event the cost thereof shall be included within the
definition of Operating Expenses, as set forth in paragraph 4.2(b).
40.2 Lessor shall have the following rights:
(a) To change the name, address or title of the Office Building
Project or building in which the Premises are located upon not less than 90 days
prior written notice;
(b) To, at Lessee's expense, provide and install Building standard
graphics on the door of the Premises and such portions of the Common Areas as
Lessor shall reasonably deem appropriate;
(c) To permit any lessee the exclusive right to conduct any business
as long as such exclusive does not conflict with any rights expressly given
herein;
(d) To place such signs, notices or displays as Lessor reasonably
deems necessary or advisable upon the roof, exterior of the buildings or the
Office Building Project or on pole signs in the Common Areas;
40.3 Lessee shall not:
(a) Use a representation (photographic or otherwise) of the Building
or the Office Building Project or their name(s) in connection with Lessee's
business;
(b) Suffer or permit anyone, except in emergency, to go upon the
roof of the Building.
41. Easements.
41.1 Lessor reserves to itself the right, from time to time, to grant
such easements, rights and dedications that Lessor deems necessary or desirable,
and to cause the recordation of Parcel Maps and restrictions, so long as such
easements, rights, dedications, Maps and restrictions do not unreasonably
interfere with the use of the Premises by Lessee. Lessee shall sign any of the
aforementioned documents upon request of Lessor and failure to do so shall
constitute a material default of this Lease by Lessee without the need for
further notice to Lessee.
41.2 The obstruction of Lessee's view, air, or light by any structure
erected in the vicinity of the Building, whether by Lessor or third parties,
shall in no way affect this Lease or impose any liability upon Lessor.
42. Performance Under Protest. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one party to the other under the provisions
hereof, the party against whom the obligation to pay the money is asserted shall
have the right to make payment "under protest" and such payment shall not be
regarded as a voluntary payment, and there shall survive the right on the part
of said party to institute suit for recovery of such sum. If it shall be
adjudged that there was no legal obligation on the part of said party to pay
such sum or any part thereof, said party shall be entitled to recover such sum
or so much thereof as it was not legally required to pay under the provisions of
this Lease.
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43. Authority. If Lessee is a corporation, trust, or general limited
partnership, Lessee, and each individual executing this Lease on behalf of such
entity represent and warrant that such individual is duly authorized to execute
and deliver this Lease on behalf of said entity. If Lessee is a corporation,
trust or partnership, Lessee shall, within thirty (30) days after execution of
this Lease, deliver to Lessor evidence of such authority satisfactory to Lessor
44. Conflict. Any conflict between the printed provisions, Exhibits or Addenda
of this Lease and the typewritten or handwritten provisions, it any, shall be
controlled by the typewritten or handwritten provisions.
45. No Offer. Preparation of this Lease by Lessor or Lessor's agent and
submission of same to Lessee shall not be deemed an offer to Lessee to lease.
This Lease shall become binding upon Lessor and Lessee only when fully executed
by both parties.
46. Lender Modification. Lessee agrees to make such reasonable modifications
to this Lease as may be reasonably required by an institutional lender in
connection with the obtaining of normal financing or refinancing of the Office
Building Project.
47. Multiple Parties. If more than one person or entity is named as either
Lessor or Lessee herein, except as otherwise expressly provided herein, the
obligations of the Lessor or Lessee herein shall be the joint and several
responsibility of all persons or entities named herein as such Lessor or Lessee,
respectively.
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OMA Job No. 0000-0000-000
SiRF Technology, Inc.
48. Commencement and Expiration Dates. The Term of this Lease shall commence
---------------------------------
on date upon which Lessor substantially completes construction of the Lessor's
Work (as hereinafter defined in paragraph 49) and delivers the Premises to
Lessee (the applicable date being referred to herein as the "Commencement
Date"), and shall expire at 5:00 p.m. on the last day of the thirty-sixth (36th)
full calendar month following such Commencement Date (the applicable date being
referred to herein as the "Expiration Date"). Once the Commencement Date has
been determined, Lessor and Lessee shall execute an amendment to this Lease
confirming the Commencement Date and the Expiration Date.
49. Lessor's Work. Notwithstanding anything herein to the contrary, prior to
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the Commencement Date, Lessor shall, at Lessor's sole cost and expense, re-paint
and re-carpet the Premises with Lessor's building standard materials (subject to
Lessee's selection of colors from Lessor's standard color collection)
(collectively, the "Lessor's Work").
50. Additional Provisions Regarding Condition of Premises. Notwithstanding
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anything to the contrary set forth in this Lease, Lessee hereby accepts the
Premises in its condition existing upon Lessee's acceptance of possession of the
Premises, AS IS, without representation or warranty of any kind from Lessor.
Lessee further acknowledges that, except for Lessor's Work, Lessor has no
obligation to make any repairs, modifications or improvements of any kind or
nature to the Premises.
51. Additional Operating Expense Provisions.
----------------------------------------
51.1 The cost of Lessor's performing the maintenance obligations described
in Paragraph 7.1, as well as the cost of operating, repairing and maintaining
the Building, the roof, and any other utilities or equipment, wherever situated,
that are for the common use of the tenants of the Building or Office Building
Project are Operating Expenses within the meaning of Paragraph 4.2.
51.2 "Lessee's Share" as set forth in Paragraphs 1.10 and 4.2(a) is
Lessee's share of Operating Expense Increase applicable only to the Building in
which the Premises are located. The percentage set forth in Paragraph 4.2(a)
has been determined by dividing the approximate rentable square footage of the
Premises by the total approximate rentable square footage contained in the
Building.
51.3 Office Building Project expenses shall be reasonably allocated by
Lessor among the buildings in the Office Building Project on the basis of the
rentable square feet in the various buildings located within the Office Building
Project.
51.4 Lessor and Lessee shall promptly adjust between them by appropriate
cash payment any balance determined to exist with respect to Lessee's Share of
Operating Expense Increase after the end of the calendar year in which this
Lease terminates, prorating for any partial year involved.
52. Additional Provisions Regarding Assignment and Subletting.
---------------------------------------------------------
52.1 Lessor may accept any form of rent from any person other than Lessee
pending approval or disapproval of an assignment, and neither a delay in the
approval or disapproval of such assignment, nor the acceptance of any form of
rent, shall constitute a waiver or estoppel of Lessor's right to exercise its
remedies for the default or breach by Lessee in the observance of any of the
terms, covenants or conditions of this Lease.
52.2 Each request for consent to an assignment or subletting shall be in
writing, accompanied by information relevant to Lessor's determination as to the
financial and operational responsibility and appropriateness of the proposed
assignee or sublessee, including but not limited to the intended use and/or
required modification of the Premises, if any, together with a non-refundable
deposit of $500 or ten per cent (10%) of the current monthly Base Rent,
whichever is greater, on account of Lessor's reasonable costs, fees and expenses
in processing the request for consent. Lessee agrees to provide Lessor with
such other or additional information and/or documentation as may be reasonably
requested by Lessor under all of the relevant circumstances.
52.3 Any assignee of, or sublessee under, this Lease shall, by reason of
accepting such assignment or entering into such sublease, be deemed, for the
benefit of Lessor, to have assumed and agreed to conform and comply with each
and every term, covenant, condition and obligation herein to be observed or
performed by Lessee during the term of said assignment or sublease, other than
such obligations as are contrary to or inconsistent with provisions of an
assignment or sublease to which Lessor has specifically consented in writing.
52.4 An assignment, transfer, mortgage or other encumbrance
(collectively, "assignment") or subletting of Lessee's interest in this Lease
without Lessor's specific prior written consent shall, at Lessor's option, be a
curable default after notice per Paragraph 13.1(b), or a noncurable breach
without the necessity of any notice and grace period. If Lessor elects to treat
such unconsented to assignment or subletting as non-curable, Lessor shall have
the right to either: (i) terminate this Lease, or (ii) upon thirty (30) days
written notice ("Lessor's Notice"), increase the monthly Base Rent to fair
market rental value or one hundred ten per cent
Initials:
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11 /s/ AEW
(110%) of the Base Rent then in effect, whichever is greater. Pending
determination of the new fair market rental value, Lessee shall pay the amount
set in Lessor's Notice, with any overpayment credited against the next
instalment(s) of Base Rent coming due, and any underpayment for the period
retroactively to the effective date of the adjustment being due and payable
immediately upon the determination thereof. Further, in the event of such
breach and market value adjustment, (i) the purchase price of any option to
purchase the Premises held by Lessee shall be subject to similar adjustment to
market price or one hundred ten percent (110 %) of the price previously in
effect, whichever is greater, (ii) any index-oriented rental or price adjustment
formulas contained in this Lease shall be deemed appropriately adjusted to
require that the base index be, or be determined with reference to, the index
applicable to the time of such market value adjustment, and (iii) any fixed
rental adjustments scheduled during the remainder of the Lease term shall be
increased in the same ratio as the new market rental bears to the Base Rent in
effect immediately prior to the market value adjustment.
53. Work By Lessee. Any alterations, additions or improvements to be
--------------
constructed or installed by Lessee at any time shall be installed by Lessee or
its contractors in compliance with the following:
(a) No such work shall proceed without (i) Lessee's contractor
providing labor and materials bond(s) satisfactory to Lessor, (ii) Lessor's
prior written approval of Lessee's contractor, (iii) the furnishing to Lessor by
Lessee's contractor of a Certificate of Insurance from an approved company in an
amount of not less than $1,000,000 combined single limits for public liability
and automobile liability, endorsed to show Lessor as an additional insured, and
(iv) detailed plans and specifications for such work submitted to and approved
by Lessor, which approval Lessor shall not unreasonably withhold or delay.
(b) All such work shall be done in conformity with a valid building
permit when required, a copy of which shall be furnished to Lessor before the
work is commenced, and any work not acceptable to the applicable Department of
Building and Safety, or not reasonably satisfactory to Lessor, shall be promptly
replaced at Lessee's expense. Notwithstanding any failure by Lessor to object
to any such work, Lessor shall have no responsibility therefor.
(c) All work by Lessee or its contractors shall be scheduled through
Lessor.
(d) Lessee shall reimburse Lessor for any extra expense incurred by
Lessor by reason of faulty work done by Lessee or its contractors, or by reason
of delays caused by such work, or by reason of inadequate cleanup.
(e) Lessee or its contractors will in no event be allowed to install
plumbing, mechanical, electrical wiring or fixtures, acoustical or integrated
ceilings, or partitions, unless approved in writing by Lessor.
(f) All work shall be diligently and continuously pursued to its
completion and be done in a good and workmanlike manner of good and sufficient
materials.
(g) All data processing and other special electrical equipment shall
be installed only under the supervision of Lessor or its electrical contractor.
54. Incomplete Common Areas. It is specifically acknowledged by Lessee that
-----------------------
portions of the Building and common areas may not be completed on or prior to
the Commencement Date, without liability of Lessor to Lessee, and without any
abatement or reduction in rent.
55. Lessor's Right to Relocate Premises. Lessor shall have the right to
-----------------------------------
relocate the Premises to another part of the Building in which the Premises are
located in accordance with the following:
(a) The new Premises shall be substantially the same in size,
dimensions, configuration, decor, and nature as the Premises described in this
Lease, and/or shall be placed in that condition by Lessor at its cost.
(b) The physical relocation of the Premises shall be accomplished by
Lessor at its cost.
(c) Lessor shall give Lessee at least thirty (30) days' notice of
Lessor's intention to relocate the Premises.
(d) The physical relocation of the Premises shall take place on a
weekend and shall be completely accomplished before the Monday following the
weekend in which the relocation takes place. If the physical relocation has not
been completed in that time, Base Rent shall xxxxx in full from the time the
physical relocation commences to the time it is completed.
(e) All costs incurred by Lessee as a result of the relocation,
including, without limitation, costs incurred in changing addresses on
stationery, business cards, directories, advertising, and other such items,
shall be paid by Lessor, in a sum not to exceed $5,000.00.
(f) Lessor shall have the right to relocate the Premises no more
than one (1) time during the term of this Lease.
/s/ DKH Initials:
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/s/ SK
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12 /s/ AEW
(g) If the relocated Premises are smaller than the Premises as they
existed before the relocation, Base Rent and Lessee's Share shall be reduced to
a sum computed by multiplying the Base Rent specified in Paragraph 4 by a
fraction, the numerator of which shall be the total number of square feet in the
relocated premises, and the denominator of which shall be the total number of
square feet in the Premises before relocation.
(h) The parties shall immediately execute an amendment to this Lease
stating the relocation of the Premises and the reduction of Base Rent and
Lessee's Share, if any.
56. Hazardous Substance Conditions-Remediation/Lease Termination.
------------------------------------------------------------
56.1 Definitions. The term "Hazardous Substance Condition", as used in
this Lease, shall mean any condition involving a Hazardous Substance, the
remediation of which may be required by the governmental authority having
jurisdiction thereof under applicable Federal, state or local law.
56.2 A "Hazardous Substance" as used in this Lease is defined as any
product, substance, chemical, material or waste (including hydrocarbons,
petroleum, gasoline, crude oil or any products, by-products or fractions
thereof) whose presence, nature, quantity and/or intensity of existence, use,
manufacture, disposal, transportation, spill, release or effect, either by
itself or in combination with other material or materials in, on or about the
Premises or Office Building Project: (a) is or becomes potentially injurious to
the public health, safety or welfare, the environment, the Office Building
Project or the Premises, (b) is or becomes regulated or monitored by any
governmental authority, or (c) may, under applicable statutory or common law
theory, such as nuisance (public or private), waste, trespass, negligence,
strict liability or tort, be a basis for Lessor's liability to third parties.
56.3 Lessee Responsibility. Lessee shall be solely responsible for the
remediation of Hazardous Substance Conditions to the extent caused or materially
contributed to by Lessee and Lessee shall indemnify, protect and defend Lessor,
the Office Building Project and the Premises from the effects thereof.
56.4 Remediation Cost Limit. Should a Hazardous Substance Condition be
discovered in, on or under the Premises or Office Building Project during the
term of the Lease which is required by a governmental authority having
jurisdiction thereof to be remediated, and which was not caused or materially
contributed to by Lessee, and which, according to Lessor's best estimate, would
cost no more than $100,000 to fully remediate ("Lessor's Remediation Cost
Limit"), Lessor agrees to remedy same at its expenses as soon as reasonably
possible.
56.5 Lessor's Right to Terminate. Should a Hazardous Substance Condition
that was not caused or materially contributed to by Lessee be discovered in, on
or under the Premises or Office Building Project during the term of this Lease
the full remediation of which would cost more than Lessor's Remediation Cost
Limit, Lessor shall promptly advise Lessee thereof and Lessor may, at Lessor's
option, either (a) remediate said Hazardous Substance Condition as soon as
reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or (b) give written notice to Lessee of
Lessor's intention to terminate this Lease. Lessor shall advise Lessee of its
election within thirty (30) days after Lessor's discovery of such Hazardous
Substance Condition. In the event Lessor elects to give such notice of Lessor's
intention to terminate this Lease, Lessee shall have the right within ten (10)
days after receipt of such notice to give written notice to Lessor of Lessee's
commitment to pay (without reimbursement from Lessor) the cost of remediating
the Hazardous Substance Condition in excess of Lessor's Remediation Cost Limit
in which event this Lease shall continue in full force and effect, and Lessor,
after receipt from Lessee of the funds required to cover said excess cost, or
adequate assurance thereof from Lessee, shall proceed to make such remediation
as soon as reasonably possible. If Lessee does not give such notice and funds
or assurance within said ten (10) day period, this Lease shall terminate thirty
(30) days following the date the initial written notice was given by Lessor to
Lessee.
56.6 Lessee Remedies. Lessee's remedies with respect to Hazardous
Substance Conditions not caused or materially contributed to by Lessee are
limited to those set forth in this Paragraph 56.
57. Inducement Recapture in Event of Breach. Any agreement by Lessor for free
---------------------------------------
or abated rent or other charges applicable to the Premises, or for the giving or
paying by Lessor to or for Lessee of any cash or other bonus, inducement or
consideration for Lessee's entering into this Lease, all of which concessions
are hereinafter referred to as "Inducement Provisions," shall be deemed
conditioned upon Lessee's full and faithful performance of all of the terms,
covenants and conditions of this Lease to be performed or observed by Lessee
during the term hereof as the same may be extended. Upon the occurrence of a
breach of this Lease by Lessee, as defined in Paragraph 13.1 and the failure of
Lessee to cure such breach within the applicable cure period, if any, any such
Inducement Provision shall automatically be deemed deleted from this Lease and
of no further force or effect, and any rent, other charge, bonus, inducement or
consideration theretofore abated, given or paid by Lessor under such an
Inducement Provision shall be immediately due and payable by Lessee to Lessor as
additional rent due under this Lease at the time such breach is established per
Paragraph 13.1 and recoverable by Lessor, notwithstanding any subsequent cure of
said breach by Lessee.
58. Option to Extend. Lessor hereby grants to Lessee the option to extend the
----------------
Original Term of this Lease for an additional five (5) year period (the "Option
Period") commencing upon the expiration of the Original Term of this Lease upon
each and all of the following terms and conditions:
Initials:
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13
(a) Lessee gives to Lessor, and Lessor actually receives, on a date
that is prior to the date upon which the Option Period would commence (if such
option is exercised) by at least six (6) but not more than nine (9) months, a
written notice of the exercise of the option to extend this Lease for said
additional term, time being of the essence. If said notification of the
exercise of said option is not so given and received, this option shall
automatically expire;
(b) The provisions of Paragraph 39, including the provision relating
to default of Lessee set forth in Paragraph 39.4 of this Lease are conditions of
this option;
(c) All of the terms and conditions of this Lease except where
specifically modified by this option shall apply;
(d) Any prior Lessee that has not been expressly released from
liability under this Lease, and any guarantor of the Lessee's performance
hereunder, expressly reaffirms in writing the extension of their liability with
respect to this Lease for this Option Period; and
(e) The monthly Base Rent for each month of the Option Period shall be
equal to ninety-five percent (95%) of the Prevailing Market Rent for the
Premises as of 120 days prior to the commencement of the Option Period, but in
no event either less than the Base Rent previously in effect.
59. Calculation of Prevailing Market Rent.
-------------------------------------
59.1 The term "Prevailing Market Rent" as used in Paragraph 58 above is
defined to mean the fair market rent of the Premises according to comparable
properties in the general area. In determining fair market monthly rent it shall
be assumed that:
(a) The Premises are in excellent condition and repair and there shall
be no deduction for depreciation, obsolescence or deferred maintenance.
(b) The Premises would be leased for the period of the option being
exercised by a tenant with the credit standing of Lessee, as the same exists at
that time.
(c) The Premises would be leased on the same terms of this Lease
insofar as the obligations for repair, maintenance, insurance and real estate
taxes existed as of the expiration of the prior Lease term of this Lease.
(d) No deduction shall be given nor consideration given to allowances
for real estate brokerage commissions.
(e) The Premises will be used for their highest and best use.
59.2 Using the above assumptions, the Prevailing Market Rent shall be
determined by Lessor and submitted to Lessee ("Lessor's Submission") within the
twenty (20) day period following commencement of the last 120 days of the
Original Term of this Lease. If Lessee disagrees with the Prevailing Market
Rent in Lessor's Submission, Lessee shall, within twenty (20) days after receipt
of Lessor's Submission, submit to Lessor in writing Lessee's judgment as to the
Prevailing Market Rent ("Lessee's Judgment"). If after consultation together
and within ten (10) days following Lessee's submission of Lessee's Judgment to
Lessor, Lessee and Lessor cannot agree on the amount of the Prevailing Market
Rent, then in that event, Lessee shall designate a qualified real estate broker
in the area (the "Lessee Broker") to determine the Prevailing Market Rent, the
cost thereof to be paid by Lessee. The Lessee Broker shall determine the
Prevailing Market Rent and submit same to Lessor within twenty (20) days after
the submission of Lessee's Judgment to Lessor. If the Prevailing Market Rent
determined by the Lessee Broker is the same as Lessor's Submission, said figure
shall be the Prevailing Market Rent. Notwithstanding the foregoing, in the
event Lessor and Lessee cannot agree on the amount of the Prevailing Market Rent
within thirty (30) days following Lessee's submission of Lessee's Judgement to
Lessor, then either Lessor or Lessee, at their respective option, may elect to
rescind the option granted hereunder by written notice thereof to the other
party within forty-five (45) days following Lessee's submission of Lessee's
Judgement to Lessor, in which event neither party shall have any further
liability or obligation under the option granted hereunder.
59.3 If the Prevailing Market Rent determined by the Lessee Broker is
greater than Lessor's Submission, the Prevailing Market Rent shall be in the
amount of Lessor's Submission.
59.4 If the determination of Prevailing Market Rent of the Lessee Broker
is less than Lessor's Submission and if after consultation together and within
ten (10) days following Lessee's submission of the Lessee Broker's determination
to Lessor, the Lessee Broker and Lessor cannot agree upon the amount of the
Prevailing Market Rent, then, in that event, said Lessee Broker and the Lessor
shall jointly agree upon and designate four other qualified, impartial real
estate brokers ("Other Brokers"). If Lessor and the Lessee Broker cannot
jointly agree upon and designate the Other Brokers within ten (10) days, then in
that event the other Brokers shall be designated by the then President of the
American Industrial Real Estate Association.
59.5 The names of the Other Brokers shall be written on separate slips of
paper, sealed and placed in a container. A disinterested party shall, at
random, select the name of one of the Other Brokers, the person
Initials:
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14
whose name is selected being referred to as the "Chosen Broker." The Chosen
Broker shall be selected within 80 days following commencement of the last 120
days of the prior term.
59.6 The Chosen Broker shall determine the Prevailing Market Rent, in
accordance with the provisions of this Paragraph 59 and that decision shall be
binding upon the Parties hereto; provided, however, that the Prevailing Market
Rent shall be no greater than Lessor's Submission and no less than the rent
suggested by the Lessee in Lessee's Judgment.
59.7 The costs and fees of the Chosen Broker shall be shared equally by
Lessor and Lessee.
59.8 The determination of the Prevailing Market Rent by the Chosen Broker
shall be completed no later than the expiration of the prior Lease term.
59.9 If for any reason the Prevailing Market Rent has not been determined
by the commencement of this Option Period, Lessee shall continue paying Base
Rent at the rate previously in effect or as specified in Lessee's Judgment,
whichever is greater, and promptly make up any deficit therein as soon as the
Prevailing Market Rent is determined.
60. Partnership Lessor. If Lessor is a partnership, the liability of Lessor,
------------------
arising under the terms of this Lease, shall be limited to the partnership
assets of Lessor.
61. Amendments to Lease. At such times as a rental adjustment is made to this
-------------------
Lease by virtue of any provision of this Lease, the parties shall execute a
written amendment to this Lease to reflect said change. Lessee agrees to make
any non-monetary modifications to this Lease that may be required by an
institutional mortgagee of Lessor.
62. Cashier's Checks. In the event that any check given to Lessor by Lessee
----------------
shall not be honored by the bank upon which it is drawn, then Lessor, at its
option may require all future payments to be made by Lessee under this Lease to
be made by Cashier's Checks. Any payment made by Lessee pursuant to a written
notice to pay under this Lease shall be made by cashier's check.
63. Subject to Ground Lease.
-----------------------
63.1 The undersigned Lessee (hereinafter in this paragraph, the
"Sublessee") hereby acknowledges that this Lease is a Sublease (hereinafter in
this paragraph, the "Sublease"), subject and subordinate to the terms of that
certain Ground Lease dated as of February 17,1988 (the "Ground Lease") by and
between OMA Del Aire Holding Corporation, a Delaware non-profit corporation, as
landlord ("Ground Lessor"), and Lessor herein (hereinafter in this paragraph,
the "Sublessor"), as tenant, and or any modifications or substitutions thereto.
63.2 If the term of the Ground Lease ends for any reason while this
Sublease is in effect, unless otherwise agreed in writing with Sublessee, Ground
Lessor may, at its option, within ninety (90) days after the termination of such
Ground Lease, either terminate this Sublease or succeed to all of the rights of
Sublessor hereunder. If Ground Lessor elects to affirm this Sublease, Sublessee
agrees that it shall attorn directly to Ground Lessor for the entire remaining
term of this Sublease.
64. Non-Discrimination/Nonsegregation. Lessee hereby covenants by and for
---------------------------------
himself, his heirs, executors, administrators and assigns, and all persons
claiming under or through him, that this Lease is made and accepted upon and
subject to the conditions that there shall be no discrimination against or
segregation of any person or group of persons on account of sex, marital status,
race, color, religion, creed, national origin or ancestry, in the leasing,
subleasing, use or enjoyment of the Premises, nor shall Lessee himself, or any
person claiming under or through him, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, sublessees, or
subtenants, in the Premises.
65. Freely Negotiated. Lessee hereby acknowledges that, notwithstanding the
-----------------
fact that portions of this Lease are pre-printed, and that this Lease was
prepared by or on behalf of Lessor, Lessee has read this Lease in its entirety
and has had the opportunity to freely negotiate any or all of the terms hereof
before executing same.
66. Exhibits. Attached hereto and incorporated herein by this reference are
--------
the following Exhibits:
1. Floor Plan showing the Premises
2. Site Plan showing the Building
3. Rules and Regulations
4. Standard Tenancy Statement
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM
AND PROVISION CONTAINED HEREIN AND BY THE EXECUTION OF THIS LEASE
Initials:
/s/ DKH
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/s/ SK
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15
SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE
THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE
COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND
LESSEE WITH RESPECT TO THE PREMISES.
IF THE PRINTED PORTION OF THIS LEASE HAS BEEN FILLED IN, IT HAS BEEN
PREPARED FOR SUBMISSION TO YOUR ATTORNEY FOR HIS OR HER APPROVAL. FURTHER,
EXPERTS SHOULD BE CONSULTED TO EVALUATE THE CONDITION OF THE PROPERTY AS TO THE
POSSIBLE PRESENCE OF ASBESTOS, STORAGE TANKS, OR HAZARDOUS SUBSTANCES. NO
REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE
ASSOCIATION OR BY THE REAL ESTATE BROKER(S) OR THEIR AGENTS OR EMPLOYEES AS TO
THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THE PRINTED PORTIONS
OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES; THE PARTIES SHALL RELY
SOLELY UPON THE ADVICE OF THEIR OWN COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES
OF THIS LEASE. IF THE SUBJECT PROPERTY IS LOCATED IN A STATE OTHER THAN
CALIFORNIA, AN ATTORNEY FROM THE STATE WHERE THE PROPERTY IS LOCATED SHOULD BE
CONSULTED.
LESSEE LESSOR
------ ------
SiRF Technology, Inc. OMA DEL AIRE PROPERTIES
a California corporation a California general partnership
By: /s/ Xxxxx X. Xxxxxxxx By: NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY, a Massachusetts
------------------------------------------------ coporation, for and on behalf of its developmental
Name: Xxxxx X. Xxxxxxxx properties account, general partner
---------------------------------------------
Title: Chief Financial Officer By: XXXXXX REAL ESTATE ADVISORS, INC., a Massachusetts
-------------------------------------------- corporation, asset manager and advisor hereunto duly
authorized
By: /s/ Xxxxxx Xxxxx
------------------------------------------------- By: see attached page
Name: Xxxxxx Xxxxx ----------------------------------
---------------------------------------------- Name: for revised signature
Title: V.P. Engr. --------------------------------
--------------------------------------------- Title: block
--------------------------------
Lessee's Address:
---------------- By:____________________________________
0000 Xxxxxxx Xxxxxxxxx #000 Xxxx:__________________________________
Xxx Xxxxxxx, XX 00000 Title: ________________________________
Lessor's Address:
-----------------
For Delivery Purposes:
0000 X. 000xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
For Mailing Purposes:
X.X. Xxx 00000
Xxxxxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
/s/ AEW
16
Lessor:
-------
OMA DEL AIRE PROPERTIES, a California partnership
By: Metropolitan Life Insurance Company, a New York
corporation, successor by merger to New England
Mutual Life Insurance Company, a Massachusetts
corporation, for and on behalf of its
Development Properties Account, general partner
By: AEW Real Estate Advisors, Limited
partnership, a Massachusetts Limited
Partnership, its asset manager and advisor
hereunto duly authorized
By: /s/ J. Xxxxxxxxxxx Xxxxx
-------------------------------
Name Printed: J. Xxxxxxxxxxx Xxxxx
---------------------
Title: Managing Director
----------------------------
/s/ AEW
STANDARD OFFICE LEASE
FLOOR PLAN
[Graphic]
(To be inserted)
EXHIBIT 1
Initials: /s/ DKH
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/s/ SK
FULL SERVICE-GROSS --------
/s/ AEW
RULES AND REGULATIONS FOR
STANDARD OFFICE LEASE
[Graphic]
Dated: December 23, 1996
-----------------
By and Between OMA Del Aire Properties and SiRF Technology, Inc.
--------------------------------------------------
GENERAL RULES
1. Lessee shall not suffer or permit the obstruction of any Common Areas,
including driveways, walkways and stairways.
2. Lessor reserves the right to refuse access to any persons Lessor in good
faith judges to be a threat to the safety, reputation. or property of the Office
Building Project and its occupants.
3. Lessee shall not make or permit any noise or odors that annoy or interfere
with other lessees or persons having business within the Office Building
Project.
4. Lessee shall not keep animals or birds within the Office Building Project,
and shall not bring bicycles. motorcycles or other vehicles into areas not
designated as authorized for same.
5. Lessee shall not make, suffer or permit litter except in appropriate
receptacles for that purpose.
6. Lessee shall not alter any lock or install new or additional locks or bolts.
7. Lessee shall be responsible for the inappropriate use of any toilet rooms,
plumbing or other utilities. No foreign substances of any kind are to be
inserted therein.
8. Lessee shall not deface the walls, partitions or other surfaces of the
premises or Office Building Project.
9. Lessee shall not suffer or permit any thing in or around the Premises or
Building that causes excessive vibration or floor loading in any part of the
Office Building Project.
10. Furniture, significant freight and equipment shall be moved into or out of
the building only with the Lessor's knowledge and consent, and subject to such
reasonable limitations, techniques and timing, as may be designated by Lessor.
Lessee shall be responsible for any damage to the Office Building Project
arising from any such activity.
11. Lessee shall not employ any service or contractor for services or work to
be performed in the Building. except as approved by Lessor.
12. Lessor reserves the right to close and lock the Building on Saturdays,
Sundays and legal holidays, and on other days between the hours of _____ P.M.
and _____ A.M. of the following day. If Lessee uses the Premises during such
periods, Lessee shall be responsible for securely locking any doors it may have
opened for entry.
13. Lessee shall return all keys at the termination of its tenancy and shall be
responsible for the cost of replacing any keys that are lost.
14. No window coverings, shades or awnings shall be installed or used by
Lessee.
15. No Lessee, employee or invitee shall go upon the roof of the Building.
16. Lessee shall not suffer or permit smoking or carrying of lighted cigars or
cigarettes in areas reasonably designated by Lessor or by applicable
governmental agencies as non-smoking areas.
17. Lessee shall not use any method of heating or air conditioning other than
as provided by Lessor.
18. Lessee shall not install, maintain or operate any vending machines upon the
Premises without Lessor's written consent.
19. The Premises shall not be used for lodging or manufacturing, cooking or
food preparation.
20. Lessee shall comply with all safety, fire protection and evacuation
regulations established by Lessor or any applicable governmental agency.
21. Lessor reserves the right to waive any one of these rules or regulations,
and/or as to any particular Lessee, and any such waiver shall not constitute a
waiver of any other rule or regulation or any subsequent application thereof to
such Lessee.
22. Lessee assumes all risks from theft or vandalism and agrees to keep its
Premises locked as may be required.
23. Lessor reserves the right to make such other reasonable rules and
regulations as it may from time to time deem necessary for the appropriate
operation and safety of the Office Building Project and its occupants. Lessee
agrees to abide by these and such rules and regulations.
PARKING RULES
1. Parking areas shall be used only for parking by vehicles no longer than full
size, passenger automobiles herein called "Permitted Size Vehicles." Vehicles
other than Permitted Size Vehicles are herein referred to as "Oversized
Vehicles."
2. Lessee shall not permit or allow any vehicles that belong to or are
controlled by Lessee or Lessee's employees. suppliers, shippers, Customers, or
invitees to be loaded, unloaded, or parked in areas other than those designated
by Lessor for such activities.
3. Parking stickers or identification devices shall be the property of Lessor
and be returned to Lessor by the holder thereof upon termination of the holder's
parking privileges. Lessee will pay such replacement charge as is reasonably
established by Lessor for the loss of such devices.
4. Lessor reserves the right to refuse the sale of monthly identification
devices to any person or entity that willfully refuses to comply with the
applicable rules, regulations, laws and/or agreements.
5. Lessor reserves the right to relocate all or a part of parking spaces from
floor to floor, within one floor, and/or to reasonably adjacent offsite
location(s), and to reasonably allocate them between compact and standard size
spaces, as long as the same complies with applicable laws, ordinances and
regulations.
6. Users of the parking area will obey all posted signs and park only in the
areas designated for vehicle parking.
7. Unless otherwise instructed, every person using the parking area is required
to park and lock his own vehicle. Lessor will not be responsible for any damage
to vehicles, injury to persons or loss of property, all of which risks are
assumed by the party using the parking area.
8. Validation, if established, will be permissible only by such method or
methods as Lessor and/or its licensee may establish at rates generally
applicable to visitor parking.
9. The maintenance, washing, waxing or cleaning of vehicles in the parking
structure or Common Areas is prohibited.
10. Lessee shall be responsible for seeing that all of its employees, agents
and invitees comply with the applicable parking rules, regulations, laws and
agreements.
11. Lessor reserves the right to modify these rules and/or adopt such other
reasonable and non-discriminatory rules and regulations as it may deem necessary
for the proper operation of the parking area.
12. Such parking use as is herein provided is intended merely as a license only
and no bailment is intended or shall be created hereby.
Initials: /s/ DKH
---------
FULL SERVICE-GROSS /s/ SK
EXHIBIT 3 --------
/s/ AEW
PAGE 1 OF 1 PAGES
[Graphic] STANDARD TENANCY STATEMENT
American Industrial Real Estate Association
TO WHOM IT MAY CONCERN:
RE Lease ("Lease") dated_____________________ by and between____________________
________________________________________________________________________________
as Lessor, and____________________________________________________, as Lessee,
concerning the premises known as:______________________________________________
("Premises"), which Lease was amended__________________________________________
and guaranteed by__________________________________________ ("Guarantor (s)")
(it will be presumed no amendments or guarantees exist unless they are specified
above).
The undersigned does hereby certify to you as follows:
1. True copies of the above referenced Lease as amended and the
guarantees, if any, are attached hereto marked Exhibit "1" (Attach a
copy of Lease, all amendments and guarantees.)
2. The Lease term commenced on_____________________________and expires
on _____________.
3. The current monthly rent and expense pass-through, if any, are as
follows:
Amount Day of Month Due Paid Up to Date
------ ---------------- ---------------
Rent $__________ __________ __________, 19__
Pass-through $__________ __________ __________, 19__
No rents or pass-throughs have been prepaid except as reflected in the Lease.
(It will be presumed that no expense pass-throughs are currently required unless
set forth above.)
4. The current amount of security deposit held by Lessor is
$____________________.
5. The Lease has not been modified, orally or in writing, since its
execution, except as hereinabove identified. The Lease as so amended is in full
force and effect and contains the entire agreement between Lessor and Lessee,
except (it will be assumed no exceptions exist unless they are specified here):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
6. The improvements and space required to be furnished by Lessor have been
furnished and completed in all respects to the satisfaction of Lessee, and all
promises of an inducement nature by Lessor have been fulfilled except (it will
be assumed no exceptions exist unless they are specified here):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
7. To the undersigned's best knowledge, there are no uncured defaults by
Lessor or Lessee under the Lease, and the undersigned is not aware of the
existence of any circumstances that would constitute a default under the Lease
if not cured within the applicable grace period after written notice by either
Lessor or Lessee to the other party, except (it will be assumed no exceptions
exist unless they are specified here):_________________________________________
________________________________________________________________________________
________________________________________________________________________________
8. There is no dispute between Lessor and Lessee concerning the Lease, the
Premises or the improvements therein or thereon, except (it will be assumed no
exceptions exist unless they are specified here):_______________________________
________________________________________________________________________________
________________________________________________________________________________
9. Lessee is in full and complete possession of the Premises and has not
assigned or sublet any portion of the Premises, except (it will be assumed no
exceptions exist unless they are specified here):_____________________________
________________________________________________________________________________
________________________________________________________________________________
10. The undersigned has no notice or knowledge of any prior sale,
transfer, assignment or encumbrance of the Lessor's or Lessee's interest in the
Lease, except (it will be presumed no exceptions exist unless they are specified
here):__________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
11. Lessee has made no alterations or additions to the Premises, except
(it will be Presumed no exceptions exist unless they are specified here):
_______________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
If alterations or additions have been made by Lessee, to the undersigned's best
knowledge, all such alterations and additions by Lessee were done in accordance
with the terms of the Lease and were in compliance with all applicable laws,
rules and regulations.
12. The guarantees of the Guarantors named above are still in full force
and effect, except (it will be assumed no exceptions exist unless they are
specified here):________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
13. Neither the Lessee, Lessor, nor Guarantor are currently the subject of
a bankruptcy proceeding, except (it will be assumed no exceptions exist unless
they are specified here):_______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
14. The undersigned is aware that buyers, lenders and others will rely
upon the statements made in this Tenancy Statement, and the undersigned has
therefore adjusted the language hereof as necessary to make it an accurate
statement of the current facts concerning the Lease. If no such adjustments
have been made, said parties may rely upon the statements in this form as
printed.
15. The person or entity signing this Tenancy Statement is[_] the Lessee,
[_] the Lessor.[_] the Guarantor.
16. Additional items (it will be presumed no additional items exist unless
set forth herein):_____________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
DATE: ________________________________________, 19__
(Fill in date of execution)
______________________________________________
______________________________________________
By____________________________________________
Name Printed:_________________________________
Title:________________________________________
For this form, write: American Industrial Real Estate Association, 000 X.
Xxxxxxxx Xxxxxx, X-0, Xxx Xxxxxxx, Xxxxx. 00000
EXHIBIT "4" /s/ AEW
[Graphic of the floor plan of the second floor of Pacific Concourse
Building 30.]
[Graphic of the layout of the building complex at 0000 Xxxxxxx Xxxxxxxxx Xxxxx.]
Exhibit 2
FIRST AMENDMENT TO LEASE
------------------------
THIS FIRST AMENDMENT TO LEASE (this "First Amendment") is entered into as
or the 8th day of January, 1997, by and between, OMA DEL AIRE PROPERTIES, a
California general partnership ("Lessor") and SiRF TECHNOLOGY, INC., a
California corporation ("Lessee"), with reference to the following facts and
circumstances:
A. Lessor and Lessee have heretofore entered into that certain Standard
Office Lease - Gross dated December 23, 1996 (the "Lease"), for premises located
at 0000 Xxxxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx (the
"Premises").
X. Xxxxxx and Lessee desire to amend the Lease as hereinafter provided.
C. Capitalized terms used in this First Amendment and not otherwise
defined herein shall have the same meanings as are ascribed to such terms in the
Lease.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Lessor and Lessee hereby agree as
follows:
1. Lessee's Expansion. Notwithstanding anything in the Lease to the
------------------
contrary, in the event that Lessee shall desire to lease alternative space from
Lessor in the Building (in lieu of Lessee's current Premises) containing at
least twice the current rentable square footage of the Premises (the "Substitute
Premises") and Lessor desires to lease such Substitute Premises to Lessee,
Lessee may elect to enter into a new lease with Lessor covering the Substitute
Premises on Lessor's standard form lease for a term of not less than three (3)
years and at a rental rate equal to the then prevailing market rent for the
Substitute Premises (as mutually reasonably agreed to by Lessor and Lessee). In
the event Lessee so elects to enter into a new lease with Lessor, upon the
complete execution and delivery of such new lease, the Lease shall terminate
(subject to the terms of such new lease). Notwithstanding anything herein to the
contrary, Lessor shall have no obligation to lease any Substitute Premises to
Lessee.
/s/ AEW
2. Reaffirmation. Except as expressly modified herein, the Lease is
-------------
hereby reaffirmed and ratified by Lessor and Lessee in its entirety.
IN WITNESS WHEREOF, Lessor and Lessee have executed this First Amendment as
of the day and year first written above.
LESSEE
------
SiRF Technology, Inc.
a California corporation
By: /s/ Xxxxxx Xxxxx
----------------------
Name: Xxxxxx Xxxxx
--------------------
Title: V.P. Engineering
-------------------
LESSOR
------
OMA DEL AIRE PROPERTIES,
a California general partnership
By: NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY, a
Massachusetts corporation,
for and on behalf of its developmental
properties account, general partner
By: XXXXXX REAL ESTATE
ADVISORS, INC., a
Massachusetts corporation,
asset manager and advisor
hereunto duly authorized
By: see attached page for revised
-------------------------------
Name: signature block
-----------------------------
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
Lessor:
------
OMA DEL AIRE PROPERTIES, a California partnership
By: Metropolitan Life Insurance Company, a New York
corporation, successor by merger to New England
Mutual Life Insurance Company, a Massachusetts
corporation, for and on behalf of its Development
Properties Account, general partner
By: AEW Real Estate Advisors, Limited
partnership, a Massachusetts Limited
Partnership, its asset manager and advisor
hereunto duly authorized
By: /s/ J. Xxxxxxxxxxx Xxxxx
-------------------------------
Name Printed: J. XXXXXXXXXXX XXXXX
---------------------
Title: MANAGING DIRECTOR
----------------------------
Property ID 0688-0101
Tenant ID 06000235
THIRD AMENDMENT TO LEASE
------------------------
This THIRD AMENDMENT TO LEASE is entered into as of this 3rd day of
September, 1997 by and between OMA DEL AIRE PROPERTIES, a California general
partnership, ("Lessor") and SiRF TECHNOLOGY, INC., a California corporation
("Lessee") with reference to the following facts and circumstances:
A. Lessor and Lessee have previously entered into that certain Standard
Office Lease - Gross dated December 23, 1996, as amended by that certain First
Amendment to Lease dated as of January 8, 1997 and that certain Acceptance and
Second Amendment to Lease dated as of January 22, 1997 (as so amended, the
"Lease"), concerning those certain premises commonly referred to as 0000 Xxxxxxx
Xxxxxxxxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx (the "Original Premises").
B. In addition to the Original Premises presently occupied by Lessee,
Lessee desires to lease from Lessor, and Lessor desires to lease to Lessee,
certain additional premises (the "Expansion Premises"), which Expansion Premises
consist of a total of approximately 2,873 rentable square feet of space on the
first floor of the building located at 0000 Xxxxxxx Xxxxxxxxx Xxxxx and are
commonly known as Suite 190. The Expansion Premises are depicted on Exhibit A
---------
attached hereto and incorporated herein by this reference. The Original Premises
and the Expansion Premises are referred to hereinafter collectively as the
"Premises".
X. Xxxxxx is willing to agree to so amend the Lease upon the terms and
conditions of this Third Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Lessor and Lessee hereby agree as
follows:
1. Defined Terms. Capitalized terms used in this Third Amendment not
-------------
otherwise defined herein shall have the same definitions as are ascribed to them
in the Lease.
2. Expansion Premises. As of the Expansion Commencement Date (as
------------------
hereinafter defined in Paragraph 3), Lessor hereby leases to Lessee and Lessee
hereby leases from Lessor, the Expansion Premises upon all of the terms and
conditions of the Lease relating to Lessee's obligations thereunder. Commencing
on the Expansion Commencement Date and continuing throughout the Expansion
Premises Term (as hereinafter defined in Paragraph 3), the term "Premises," as
defined in Section 1.2 of the Lease, shall be modified to mean the Original
Premises (as it existed immediately prior to the Expansion Commencement Date)
together with the Expansion Premises.
3. Expansion Premises Term. The term of the Lease with respect to the
-----------------------
Expansion Premises shall commence on September 6, 1997 (the "Expansion
Commencement Date:"), and shall expire on December 31, 1997 (the "Expansion
Premises Term"). Upon the expiration of the Expansion Premises Term, Lessee
shall vacate and surrender the Expansion Premises in accordance with the terms
and provisions of the Lease with no rights to holdover or extend the Expansion
Premises Term.
4. Base Rent. Commencing on the Expansion Commencement Date and continuing
---------
throughout the Expansion Premises Term, the monthly Base Rent payable under the
Lease shall be increased by $4,453.15 (i.e. the amount of Base Rent attributable
to the Expansion Premises).
5. Security Deposit: The security deposit as called for under paragraph 1.9
----------------
or the Lease shall be increased by $4,453.15 to $8,824.15 to cover the Expansion
Premises .
6. Parking: Effective on the Expansion Commencement Date, and continuing
-------
through the Expansion Premises Term, Lessee shall be entitled to eleven (11)
additional parking spaces at the monthly rate of $35.00 per parking space.
7. Lessee's Share. Commencing on the Expansion Commencement Date and
--------------
continuing throughout the Expansion Premises Term, Lessee's Share of Operating
Expense Increase with respect to the Expansion Premises shall be 4.21%, which
percentage has been calculated by the ratio of the rentable square footage of
the Expansion Premises to the total rentable square footage contained in the
Building in which the Expansion Premises are located. Lessee shall continue to
be liable for Operating Expense Increases based on Lessee's Share with respect
to the Original Premises arising prior to and after the Expansion Commencement
Date.
1
8. Expansion Premises Base Year. The Base Year (as defined in Paragraph
----------------------------
4.2(b) of the Lease) with respect to the Expansion Premises only shall be deemed
to be 1997.
9. Evidence of Insurance Coverage. On the Expansion Commencement Date,
------------------------------
Lessee shall cause the insurance which Lessee is obligated to obtain and
maintain under Paragraph 8 of the Lease to be revised such that it shall also be
applicable to and cover the Premises (as increased to include the Expansion
Premises), and Lessee shall deliver evidence of such insurance coverage to
Lessor on the Expansion Commencement Date.
10. Expansion Premises Condition. The Expansion Premises are being leased
----------------------------
in an "as is" condition.
11. Acknowledgment Concerning Broker. Lessee and Lessor each hereby
--------------------------------
represent and warrant to one another that neither has had any dealings with any
person, firm, finder or broker other than The Xxxxxx Company in connection with
the negotiation of this Third Amendment and/or the consummation of the
transaction contemplated hereby. Lessee and Lessor do each hereby agree to
indemnify, protect, defend and hold the other harmless from and against
liability for compensation or charges which may be claimed by any such unnamed
broker, finder or other similar party by reason of any dealings or actions of
the indemnifying party, including any costs, expenses, and attorneys' fees
reasonably incurred with respect thereto.
12. Acknowledgments. As a material inducement for Lessor to enter into this
---------------
Third Amendment, Lessee agrees that (a) Lessor has performed all obligations
required of Lessor under the Lease; (b) no event has occurred or failed to occur
which, with the giving of notice or the passage of time, or both, would
constitute or ripen into a breach or default of the Lease by Lessor; (c) as of
the date hereof, Lessee has no offsets or counterclaims whatsoever under the
Lease (including, without limitation, with respect to all prior payments or
reimbursements of Operating Expenses made by Lessee); and (d) Lessee hereby
reaffirms as accurate and binding the provisions of the Lease regarding the size
of the Premises and the calculation of Lessee's Share.
13. Reaffirmation. Except as expressly modified herein, the Lease is hereby
-------------
reaffirmed and ratified by the parties in its entirety.
IN WITNESS WHEREOF, Lessee and Lessor have executed this Third Amendment as
of the day and year first written above.
LESSEE
------
SiRF TECHNOLOGY, INC., a California corporation
By: /s/ Xxxxxx Xxxxx
------------------------------------------
Title: VP Engr.
---------------------------------------
Date: 4 Sep 97
----------------------------------------
By:__________________________________________
Title:_______________________________________
Date:________________________________________
LESSOR
------
OMA DEL AIRE PROPERTIES, L.P., a California
limited partnership
By: Del Aire LLC, a California limited liability
company, its general partner
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Title: Vice Pres.
---------------------------------
Date: 9-15-97
----------------------------------
By: [illegible]
------------------------------------
Title: [illegible]
---------------------------------
Date: 9-15-97
----------------------------------
2
[Graphic of floor plan of the first floor of Building 10 of 0000 Xxxxxxx
Xxxxxxxxx Xxxxx, Xxx Xxxxxxx, CA.]
EXHIBIT "A"
FOURTH AMENDMENT TO LEASE
-------------------------
THIS FOURTH AMENDMENT TO LEASE (this "Fourth Amendment") is entered into as
of the 30th day of December, 1997 (the "Effective Date"), by and between, OMA
DEL AIRE PROPERTIES, L.P., a California limited partnership (successor-in-
interest to OMA Del Aire Properties, a California general partnership)
("Lessor"), and SiRF TECHNOLOGY, INC., a California corporation ("Lessee"), with
reference to the following facts and circumstances:
A. Lessor and Lessee have previously entered into that certain Standard
Office Lease - Gross dated December 23, 1996, relating to certain premises
located in the City of Los Angeles, State of California. Said lease was
subsequently amended by (i) that certain First Amendment to Lease dated as of
January 8, 1997, and (ii) that certain Acceptance and Second Amendment to Lease
dated as of January 22, 1997, (iii) that certain Third Amendment to Lease dated
as of September 3, 1997, and as so modified said lease is hereinafter referred
to as the "Existing Lease."
B. Capitalized terms used in this Fourth Amendment and not otherwise
defined herein shall have the same meanings as are ascribed to such terms in the
Existing Lease.
C. Pursuant to the terms of the Existing Lease, among other things, Lessor
leases to Lessee, and Lessee leases from Lessor (i) those certain premises
commonly known as Suite 190 of the building located at 0000 Xxxxxxx Xxxxxxxxx
Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx (the "Suite 190 Premises"), and (ii) those
certain premises commonly known as Suite 240 of the building located at 0000
Xxxxxxx Xxxxxxxxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx (the "Suite 240 Premises").
D. Concurrently herewith, Lessor and Lessee are entering into a new lease
with respect to certain premises within the Building (the "New Lease"). In
connection with the New Lease, Lessor and Lessee desire to amend the Existing
Lease to provide for, among other things, an early expiration of the term of the
Existing Lease.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Lessor and Lessee hereby agree as
follows:
1. Expiration of Term of Existing Lease.
------------------------------------
a. Subject to the satisfaction of the condition precedent set forth in
Paragraph 2 hereinbelow, effective as of the Effective Date, the Existing Lease
shall be and hereby is amended to reflect that the term of the Existing Lease
with respect to the Suite 190 Premises shall be deemed to have terminated on the
Effective Date. From and after the Effective Date, Lessee's occupancy of the
Suite 190 Premises shall be a tenancy from month to month upon all of the
provisions of the Existing Lease pertaining to the obligations of Lessee;
provided, however, that all Options granted under the terms of the Existing
Lease shall be deemed terminated and be of no further effect during said month
to month tenancy; further provided that as of the New Lease Commencement Date
(as hereinafter defined) any such month to month tenancy of the Suite 190
Premises by Lessee shall be deemed terminated.
b. Subject to the satisfaction of the condition precedent set forth in
Paragraph 2 hereinbelow, effective as of the date of the commencement of the
term of the New Lease (the applicable date being referred to herein as the "New
Lease Commencement Date"), the Existing Lease shall be and hereby is amended to
reflect that the term of the Existing Lease with respect to the Suite 240
Premises shall be deemed to have terminated on the New Lease Commencement Date.
2. Condition Precedent. The effectiveness of this Fourth Amendment is
-------------------
expressly conditioned upon Lessor and Lessee entering into a binding written
lease for the lease of certain premises within the Building commonly known as
Suite 120 concurrently with the execution and delivery of this Fourth Amendment.
3. Lessee's Security Deposit. Lessor and Lessee hereby acknowledge and
-------------------------
agree that Lessor currently holds a $8,824.15 security deposit under the
Existing Lease (the "Existing Lease Security Deposit"). Subject to all of the
terms and conditions of the Existing Lease, Lessor agrees to apply the Existing
Lease Security Deposit against Lessee's obligation to provide Lessor with a
$11,985.00 security deposit under the New Lease. After Lessor has so applied the
Existing Lease Security Deposit, Lessor shall have no obligation under the
Existing Lease to return the Existing Lease Security Deposit or any part thereof
to Lessee.
4. Ownership of Improvements. Any tenant improvements or items of personal
-------------------------
property left on the Suite 190 Premises or the Suite 240 Premises after Lessee
has vacated same shall be deemed, at Lessor's option, the property of Lessor.
1
5. Representations by Lessee. Lessee hereby represents and warrants to
-------------------------
Lessor that: (a) Lessee is the present sole owner of the lessee's interest in
the Lease; (b) Lessee has not made any assignment, sublease, transfer,
conveyance, hypothecation or other disposition of the Lease, or any interest
therein; and (c) Lessee has not suffered or created any claim, demand,
obligation, liability, action or cause of action pertaining to the Premises or
the Lease. Lessee hereby acknowledges that Lessor is entering into this Fourth
Amendment in reliance on the foregoing representations and warranties of Lessee.
6. Reaffirmation. Except as expressly modified herein, the Existing Lease
-------------
is hereby reaffirmed and ratified by Lessor and Lessee in its entirety.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Fourth Amendment
as of the day and year first written above.
LESSEE
------
SiRF Technology, Inc.
a California corporation
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
------------------------------------
Title: VP Engr.
-----------------------------------
Lessor:
------
OMA DEL AIRE PROPERTIES, L.P.
a California limited partnership
By: DEL AIRE LLC,
a California limited liability company,
its general partner
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxx
------------------------------
Title: Vice Pres.
-----------------------------
2
