EXHIBIT 10.9
LEASE AGREEMENT
THIS LEASE, made this 12th day of May 2000 between XXXX XXXXXXXXX, Trustee
or his Successor Trustee, UTA dated 7/20/77 (XXXX XXXXXXXXX SURVIVOR'S TRUST) as
amended, and XXXXXXX X. XXXXX, Trustee, or his Successor Trustee, UTA dated
7/20/77 (XXXXXXX X. XXXXX SEPARATE PROPERTY TRUST) as amended, hereinafter
called Landlord, and VIANT CORPORATION, a Delaware corporation, hereinafter
called Tenant.
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby hires and takes from
Landlord those certain premises (the "Premises") outlined in red on Exhibit "A"
attached hereto and Incorporated herein by this reference thereto more
particularly described as follows:
A portion of that certain 39,703+/- (plus or minus) square foot, one-story
building located at 000 Xxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000, consisting
of approximately 19,053+/- (plus or minus) square feet of space. Said Premises
is more particularly shown within the area outlined in Red on Exhibit A attached
hereto. The entire parcel, of which the Premises is a part, is shown within the
area outlined in Green on Exhibit A attached. The Premises is leased on an
"as-is" basis, in its present condition, and in the configuration as shown in
Red on Exhibit B attached hereto.
The word "Premises" as used throughout this lease is hereby defined to
include the nonexclusive use of landscaped areas, sidewalks and driveways in
front of or ad scent to the Premises, and the nonexclusive use of the area
directly underneath or over such sidewalks and driveways. The gross leasable
area o the building shall be measured from outside of exterior walls to outside
of exterior walls, and shall include any atriums, covered entrances or egresses
and covered building loading areas. Said letting and hiring is upon and subject
to the terms, covenants and conditions hereinafter set forth and Tenant
covenants as a material part of the consideration for this Lease to perform and
observe each and all of said terms, covenants and conditions. This Lease is made
upon the conditions of such performance and observance.
1. USE. Tenant shall use the Premises' only in conformance with applicable
governmental laws, regulations, rules and ordinances for the purpose of general
office and storage uses necessary for Tenant to conduct Tenant's business,
provided that such uses shall be in accordance with all applicable Governmental
laws and ordinances and for no other purpose. Tenant shall not do or permit to
be done in or about the Premises nor bring or keep or permit to be brought or
kept in or about the Premises anything which is prohibited by or will in any way
increase the existing rate of (or otherwise affect) fire or any insurance
covering the Premises or any part thereof, or any of its contents, or will cause
a cancellation of any insurance covering the Premises or any part thereof, or
any of Its contents. Tenant shall not do or permit to be done anything In, on or
about the Premises which will in anyway obstruct or Interfere with the rights of
other tenants or occupants of the Premises or neighboring premises or Injure or
annoy them, or use or allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose, nor shall Tenant cause, maintain or permit
any nuisance in, on or about the Premises. No sale by auction permitted on the
Premises. Tenant shall not place any loads upon the floors, walls, or ceiling
which endanger the structure, or place any harmful fluids or of materials in the
drainage system of the building, or overload existing electrical or other
mechanical systems. No waste materials or refuse shall be dumped a or permitted
to remain upon any part of the Promises or outside of the building in which the
Premises are a part, except in trash containers placed inside exterior
enclosures designated by Landlord for that purpose or inside of the building
proper where designated by Landlord. No materials, supplies, equipment, finished
products or semi-finished products, raw materials or articles of any nature
shall be stored upon or permitted to remain outside the Premises. Tenant shall
not place anything or allow anything to be placed near the glass of any window,
door partition or wall which may appear unsightly from outside the Premises. No
loudspeaker or other device, system or apparatus which can be heard outside the
Premises shall be used In or at the Premises without the prior written consent
of Landlord. Tenant shall not commit or suffer to be committed any waste in or
upon the Premises. Tenant shall Indemnify, defend and hold Landlord harmless
against any loss, expense, damage, reasonable attorney's fees, or liability
arising out of failure of Tenant to comply with any applicable law. Tenant shall
comply with any covenant, condition, or restriction ("CC&R's") affecting the
Premises. The provisions of this paragraph are for the benefit of Landlord only
and shall not be construed to be for the benefit of any tenant or occupant of
the Premises.
2. TERM*
A. Subject to Paragraph 53, the term of this Lease shall be for a
period of FIVE (5) years unless sooner terminated as hereinafter provided)
and subject to Paragraphs 2B and 3, shall commence on the 7th day of June,
2000 and end on the 30th day of June, 2005.
B. Possession of the Premises shall be deemed tendered and the term of
the Lease shall commence on June 7, 2000 or as otherwise agreed in writing.
3. POSSESSION If Landlord, for any reason whatsoever, cannot deliver
possession of Said premises to Tenant at the commencement of the said term, as
hereinbefore specified, this Lease shall not be void or voidable; no obligation
of Tenant shall be affected thereby; nor shall Landlord a Landlord's agents be
liable to Tenant for any loss or damage resulting therefrom; but M that event
the commencement and termination dates of the Lease; and all other dates
affected thereby shall be revised to conform to the date of landlord's delivery
of possession, as specified In Paragraph 28, above. The above is, however,
subject to the provision that the period of delay of delivery of the Premises
shall rat exceed 30 days from the commencement date herein (except those delays
caused by Acts of God, strikes, war, utilities governmental bodies, weather,
unavailable materials, and delays beyond Landlord's control shall be excluded in
calculating such period) in which instance Tenant, at its option, may, by
written notice to Landlord, terminate this Lease.
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* It is agreed in the event said Lease commences on a date other than the
first day of the month the term of the Lease will be extended to account for
the number of days in the partial month. The Basic Rent during the resulting
partial month will be pro-rated (for the number of days in the partial
month) at the Basic Rent rate scheduled for the projected commencement date
as shown in Paragraph 39.
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4. RENT
A. BASIC RENT Tenant agrees to pay to Landlord at such place as
Landlord may designate without deduction offset, prior notice, or demand, and
Landlord ague to accept as Bask Rent for the based Promises the tow sum of EIGHT
MILLION SIX HUNDRED EIGHTY THOUSAND FIVE HUNDRED FORTY SIX AND 80/100 Dollars s
($8,680,546.80) in lawful money of the United States of America, payable as
follows:
See Paragraph 39 for Basic Rent Schedule
B. TIME FOR PAYMENT. Full monthly rent is due in advance on the first
day of each calendar month. In the event that the term of this Lease commences
on a date other than the first day of a calendar month, on the date of
commencement of the term hereof Tenant shall pay to Landlord as rent for the
period from such date of commencement to the first day of the next succeeding
calendar month that proportion of the monthly rent hereunder which the number of
days between such date of commencement and the first day of the next succeeding
calendar month bears to thirty (30). In the event that the term of this Lease
for any reason ends on a date other than the last day of a calendar month, on
the first day of the last calendar month of the term hereof Tenant shall pay to
Landlord as rent for the period from said first day of said last calendar month
to and including the last day of the term hereof that proportion of the monthly
rent hereunder which the number of days between said first day of said last
calendar month and the last day of the term hereof bears to thirty (30).
C. LATE CHARGE. Notwithstanding any other provision of this Lease, If
Tenant is in default in the payment of rental as set forth in this Paragraph 4
when due, or any part thereof, Tenant agrees to pay Landlord, in addition to the
delinquent rental due, a late charge for each rental payment in default ten (10)
days. Said late charge shall equal ten percent (10%) of each rental payment so
in default
D. ADDITIONAL RENT. Beginning with the commencement date of the term of
this Lease. Tenant shall pay to Landlord or to Landlord's designated agent in
addition to the Basic Rent and as Additional Rent the following:
(a) All Taxes relating to the Premises as set forth in Paragraph 9, and
(b) All insurance premiums and deductibles relating to the Premise, as
set forth in Paragraph 12, and
(c) All charges, costs and expenses, which Tenant is required to pay
hereunder, together with all interest and penalties, costs expenses including
reasonable attorneys' fees and legal expenses, that may accrue thereto In the
event of Tenant's fall failure to pay such amounts, and all damages, reasonable
costs and expenses which Landlord may incur by reason of default of Tenant or
failure on Tenant's part to comply with the terms of this Lease. In the event of
nonpayment by Tenant of Additional Rent, Landlord shall have all the rights and
remedies with respect thereto as Landlord has for nonpayment of rent.
The Additional Rent due hereunder shall be paid to Landlord or Landlord's
agent (i) within five days for taxes and insurance and within thirty days for
all other Additional Rent items after presentation of invoice from Landlord or
Landlord's agent setting forth such Additional
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Rent and/or (ii) at the option of Landlord, Tenant shall pay to Landlord
monthly, In advance, Tenant's pro rata share of an amount estimated by Landlord
to be Landlord's approximate average monthly expenditure for such Additional
Rent items, which estimated amount shall be reconciled within 120 days of the
end of each calendar year or more frequently, if Landlord elects to do so at
Landlord's sole and absolute discretion as compared to Landlord's actual
expenditure for said Additional Rent items, with Tenant paying to Landlord, upon
demand, any amount of actual expenses expended by Landlord in excess of said
estimated amount, or Landlord crediting to Tenant (providing Tenant is not in
clef cult In the performance of any of the terms, covenants and conditions of
this Lease) any amount of estimated payments made by Tenant in excess of
Landlord's actual expenditures for said Additional Rent Items.
The respective obligations of Landlord and Tenant under this paragraph
shall survive the expiration or other termination of the term of this Lease, and
if the term hereof shall expire or shall otherwise terminate on a day other than
the last day of a calendar year, the actual Additional Rent incurred for the
calendar year in which the term hereof expires or otherwise terminates shall be
determined and settled on the basis of the statement of actual Additional Rent
for such calendar year and shall be prorated in the proportion which the number
of days in such calendar year preceding such expiration or termination bears to
365.
E. FIXED MANAGEMENT FEE. Beginning with the Commencement Date of the
Term of this Lease, Tenant shall pay to Landlord, in addition to the Basic Rent
and Additional Rent, a fixed monthly management fee ("Management Fee") equal to
3% of the Basic Rent due for each moth during the Lease Term.
F. PLACE OF PAYMENT OF RENT AND ADDITIONAL RENT. All Basic Rent
hereunder and all payments hereunder for Additional Rent shall be paid to
Landlord at the office of Landlord at Xxxxx/Arrilaga, File 1504, Xxx 00000, Xxx
Xxxxxxxxx, XX 00000, or to such other person or to such other place as Landlord
may from time to time designate in writing.
G. SECURITY DEPOSIT. Concurrently with Tenant's execution of this
Lease, Tenant shall deposit with Landlord the sum of THREE HUNDRED FOUR THOUSAND
EIGHT HUNDRED FORTY-EIGHT AND NO/100 Dollars ($304,848.00). Said sum shall be
held by Landlord as a Security Deposit for the faithful performance by Tenant of
all of the terms, covenants, and conditions of this Lease to be kept and
performed by Tenant during the term hereof. If Tenant defaults with respect to
any provision of this Lease, including, but not limited to, the provisions
relating to the payment of rent and any of the monetary sums due herewith,
Landlord may (but shall not be required to) use, apply or retain all or any part
of this Security Deposit for the payment of any other amount which Landlord may
spend by reason of Tenant's default or to compensate Landlord for any other loss
or damage which Landlord may suffer by reason of Tenant's default If any portion
of said Deposit I: so used or applied, Tenant shall, within ten (10) days after
written demand therefor, deposit cash with Landlord in the amount sufficient to
restore the Security Deposit to its original amount. Tenant's failure to do so
shall be a material breach of this Lease. Landlord shall not be required to keep
this Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on such Deposit. If Tenant fully and faithfully performs
every provision of this Lease to be performed by it, the Security Deposit or any
balance thereof shall be returned to Tenant (or at Landlord's option, to the
last assignee of Tenant's interest hereunder) at the expiration or other earlier
termination of
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the Lease term and after Tenant has vacated the Premises. In the event of
termination of Landlord's interest in this Lease, Landlord shall transfer said
Deposit to Landlord's successor in Interest whereupon Tenant agrees to release
Landlord from liability for the return of such Deposit or the accounting
therefor.
5. ACCEPTANCE AND SURRENDER OF PREMISES By entry hereunder, Tenant accepts the
Premises as being in good and sanitary order, condition and repair and accepts
the building and Improvements included In the Premises In their present
condition and without representation or warranty by Landlord as to the condition
of such building or as to the use or occupancy which may be made thereof. Any
exceptions to the foregoing must be by written agreement executed by Landlord
and Tenant. Tenant agrees on the last day of the Lease term, or on the sooner
termination of this Lease, to surrender f Premises promptly and peaceably to
Landlord in good condition and repair (damage by Acts of God, fire, normal wear
and tear excepted), with all Interior walls painted, or cleaned so that they
appear freshly painted, and repaired and replaced, If damaged; all floors
cleaned and waxed; all carpets cleaned and shampooed; all broken, marred or
nonconforming acoustical ceiling tiles replaced; all windows washed; the
air-conditioning and heating systems serviced by a reputable and licensed
service firm and In good operating condition and repair; the plumbing and
electrical systems and lighting In good order and repair, Including replacement
of any burned out or broken light bulbs or ballasts; the lawn and shrubs in good
condition including the replacement of any dead or damaged plantings; the
sidewalk, driveways and parking areas in good order, condition and repair,
together with all alterations, additions, and improvements which may have been
made In, to, or on the Premises (except moveable trade fixtures Installed at the
expense of Tenant) except that Tenant shall ascertain from Landlord within
thirty (30) days before the end of the term of this Lease whether Landlord
desires to have the Premises or any part or parts thereof restored to their
condition and configuration as when the Premises were delivered to Tenant and N
Landlord shall so desire, then Tenant shall restore said Premises or such part
or parts thereof before the end of this Lease at Tenant's sole cost and expense.
Tenant, on or before the end of the term or sooner termination of this Lease,
shall remove all of Tenant's personal property and trade fixtures from the
Premises, and all property not so removed on or before the end of the term or
sooner termination of this Lease shall be deemed abandoned by Tenant and title
to same shall thereupon pass to Landlord without compensation to Tenant.
Landlord may, upon termination of this Lease, remove all moveable furniture and
equipment so abandoned by Tenant, at Tenant's sole cost, and repair any damage
caused by such removal at Tenant's sole cost. B the Premises be not surrendered
at the end of the term or sooner termination of this Lease, Tenant shall
indemnify Landlord against loss or liability resulting from the delay by Tenant
in so surrendering the Premises including, without limitation, any claims made
by any succeeding tenant founded on such delay. Nothing contained herein shall
be construed as an extension of the term hereof or as a consent of landlord to
any holding over by Tenant. The voluntary or other surrender of this Lease or
the Premises by Tenant or a mutual cancellation of this Lease shall not work as
a merger and, at the option of Landlord, shall either terminate all or any
existing subleases or subtenancies or operate as an assignment to Landlord of
all or any such subleases or subtenancies.
6. ALTERATIONS AND ADDITIONS Tenant shall not make, or suffer to be made, any
alteration or addition to the Premises, or any part thereof, without the written
consent of Landlord first had and obtained by Tenant (such consent not to be
unreasonably withheld), but at
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the cost of Tenant, and any addition to, or alteration of, the Premises, except
moveable furniture and trade fixtures, shall at once become a part of the
Premises and belong to Landlord. Landlord reserves the right to approve all
contractors and mechanics proposed by Tenant to make such alterations and
additions. Tenant shall retain title to all moveable furniture and trade
fixtures placed in the Premises. All heating, lighting, electrical,
air-conditioning, floor to ceiling partitioning, drapery, carpeting, and floor
installations made by Tenant, together with all property that has become an
Integral part of the Premises, shall not be loomed trade fixtures. Tenant agrees
that It will not proceed to make such alteration or additions, without having
obtained consent from Landlord to do so, and until five (5) days from the
receipt of such consent, in order that Landlord may post appropriate notices to
avoid any liability to contractors or material suppliers for payment for
Tenant's Improvements. Tenant will at all times permit such notices to be posted
and to remain posted until the completion of work. Tenant shall, if required by
Landlord, secure at Tenant's own cost and expense, a completion and lien
Indemnity bond, satisfactory to Landlord, for such work. Tenant further
covenants and agrees that any mechanic's lien filed against the Premises for
work claimed to have been done for, or materials claimed to have n furnished to
Tenant, will be discharged by Tenant by bond or otherwise, within ten (10) days
after the filing thereof, at the coat and expense of Tenant. Any exceptions to
the foregoing must be made in writing and executed by both Landlord and Tenant.
7. TENANT MAINTENANCE. Tenant shall, at its sole cost and expense keep and
maintain the Premises (including appurtenances) and every pan thereof in a high
standard of maintenance and repair, and in good and sanitary condition. Tenant's
maintenance and repair responsibilities herein referred to include, but are not
limited to janitorization, plumbing systems within the Premises (such as water
and drain lines, sinks), electrical systems within the non-common areas of the
Premises (such as outlets, lighting fixtures lamps, bulbs, tubes, ballasts),
heating and air-conditioning controls within the non-common areas of the
Premises (such as mixing boxes, thermostats, time clocks, supply and return
grills), all interior improvements within the non-common areas of the premises
including but not limited to: wall coverings. window coverings. acoustical
ceilings. vinyl tile. carpeting. partitioning, doors (both interior and
exterior, including closing mechanisms. latches. locks). and all other interior
improvements of any nature whatsoever. Tenant agrees to provide carpet xxxxxxx
under all rolling chain or to otherwise be responsible for wear and tear of the
carpet caused by such rolling chairs if such wear and tear exceeds that caused
by normal foot traffic in surrounding areas. Areas of excessive wear shall be
replaced at Tenant's sole expense upon tease termination.
8. UTILITIES.
[DELETED]
9. TAXES
A. As Additional Rent arid in accordance with Paragraph 4D of this
Lease, Tenant Small pay to Landlord, or If Landlord so directs, directly to the
Tax Collector, all Real Property Taxes relating to the Premises. In the event
the Premises leased hereunder consist of only a portion of the entire tax
parcel, Tenant shall pay to Landlord Tenant's proportionate share of such real
estate taxes allocated to the leased Premises by square footage or other
reasonable basis as calculated and determined by Landlord. If ft tax billing
pertains 100 DEG.% to the leased Premises,
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and Landlord chooses to have Tenant pay said real estate taxes directly to the
Tax Collector, then in such event ft shall be the responsibility of Tenant to
obtain the tax and assessment bills and pay, prior to delinquency, the
applicable real property taxes and assessments pertaining to the leased
Premises, and failure to receive a xxxx for taxes and/or assessments shall not
provide a basis for cancellation of or nonresponsibility for payment of
penalties for nonpayment or late payment by Tenant. The term "Real Property
Taxes" as used herein, shall mean (i) all taxes, assessments, levies and other
charges of any kind or nature whatsoever, general and special, foreseen and
unforeseen (including all installments of principal and interest required to pay
any general or special assessments for public improvements and any increases
resulting from reassessments caused by any change in ownership of the Premises)
now or hereafter imposed by any governmental or quasi-governmental authority or
special district having the direct or indirect power to tax or levy assessments,
which are levied or assessed against, or with respect to the value, occupancy or
use of, all or any portion of the Premises (as now constructed or as may at any
time hereafter be constructed, altered or otherwise changed) or Landlord's
interest therein; any improvements located within the Premises (regardless of
ownership); the fixtures, equipment and other property of Landlord, real or
personal, that are an integral part of and located in the Premises; or parking
areas, public utilities, or energy within the Premises; (ii) all charges, levies
or fees imposed by reason of environmental regulation or other governmental
control of the Premises; and (iii) all costs and fees (including reasonable
attorneys' fees) incurred by Landlord In reasonably contesting any Real Property
Tax and in negotiating with public authorities as to any Real Property Tax, If
at any time during the term of this Lease the taxation or assessment of the
Premises prevailing as of the commencement date of thin Lease shall be altered
so that In lieu of or In addition to any Real Property Tax described above there
shall be levied, assessed or imposed (whether by reason of a change in the
method of taxation or assessment, creation of a new tax or charge, or any other
cause) an alternate or additional tax or charge (i) on the value, use or
occupancy of the Premises or Landlord's Interest therein or (ii) on or measured
by the gross receipts, Income or rentals from the Premises, on Landlord's
business of leasing the Premises, or computed in any manner with respect to the
operation of the Premises, then any such tax or charge, however designated,
shall be included within the meaning of the term "Real Property Taxes" for
purposes of this Lease. If any Real Property Tax is based upon property a rents
unrelated to the Promises, then only that part of such Real Property Tax that is
fairly allocable to the Premises shall be Included within the meaning of the
term "Real Property Taxes". Notwithstanding the foregoing, the term "Real
Property Taxes" shall not include estate, Inheritance, gift or franchise taxes
of Landlord or the federal or state net income tax imposed oil Landlord's Income
from all sources. The term "Real Estate Taxes" shall also include supplemental
taxes related to the period of Tenant's Lease whenever levied, including any
such taxes that may be levied after the Lease Term has expired.
B. TAXES ON TENANT'S PROPERTY Tenant shall be liable for and shall pay
ten days before delinquency, taxes levied against any personal property or trade
fixtures placed by Tenant In or about the Premises. If any such taxes on
Tenant's personal property or trade fixtures are levied against Landlord or
Landlord's property or H the assessed value of the Premises Is Increased by the
Inclusion therein of a value placed upon such personal property or trade
fixtures of Tenant and B Landlord, after written notice to Tenant, pays the
taxes based on such increased assessment, which Landlord shall have the right to
do regardless of the validity thereof, but only under proper protest if
requested by Tenant, Tenant shall upon demand as the case may be, repay to
Landlord the taxes so levied against Landlord, or the proportion of such taxes
resulting from
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such increase in the assessment; provided that in any such event Tenant shall
halt have the right, in the name of landlord and with Landlord's full
cooperation, to bring, suit in an court of competent Jurisdiction to recover the
amount of such taxes so paid under protest, and any amount so recovered shall
belong to Tenant.
10. LIABILITY INSURANCE Tenant, at tenant's, expense, agrees to keep in force
during the term of this Lease a policy of commercial general liability insurance
with combined single limit coverage of not less than Two Million Dollars
($2,000,000) per occurrence, for bodily injury and property damage occurring in,
on or about the Premises, including parking and landscaped areas. Such insurance
shall be primary and noncontributory as respects any Insurance carried by
Landlord. The policy or policies effecting such insurance shall name Landlord as
additional insureds and shall insure any liability of Landlord, contingent or
otherwise; as respects acts or omissions of Tenant; its agents, employees or
invitees or otherwise by any conduct or transactions of any of said persons in
or about or concerning the Premises, including any failure of Tenant to observe
or perform any of its obligations hereunder, shall be Issued by an insurance
company admitted to transact business in the State of California; and shall
provide that the Insurance effected thereby shall not be canceled, except upon
thirty (30) days' prior written notice to Landlord. A certificate of insurance
of said policy shall be delivered to Landlord. If, during the term of this
Lease, in the considered opinion of Landlord's Lender, insurance advisor, or
counsel, the amount of insurance described in this Paragraph 10 is not adequate,
Tenant agrees to increase said coverage to such reasonable amount as Landlord's
insurance advisor, or counsel shall deem adequate.
11. TENANT'S PERSONAL PROPERTY INSURANCE AND XXXXXXX'X COMPENSATION INSURANCE
Tenant shall maintain a policy or policies of fire and property damage insurance
in "art risk" form with a sprinkler leakage endorsement Insuring the personal
property, inventory, trade fixtures, and leasehold improvements within the
leased Premises for the full replacement value thereof. The proceeds from any of
such policies shall be used for the repair or replacement of such items so
insured.
Tenant shall also maintain a policy or policies of xxxxxxx'x compensation
insurance and any other employee benefit Insurance sufficient to comply with all
laws.
12. PROPERTY INSURANCE Landlord shall purchase and keep in force, and as
Additional Rent and in accordance with Paragraph 40 of this Lease, Tenant shall
pay to Landlord (or Landlord's agent if so directed by Landlord) Tenant's
proportionate share (allocated to the leased Premises by square footage or other
equitable basis as calculated and determined by Landlord) of the deductibles on
insurance claims and the cost of, policy or policies of Insurance covering loss
or damage to the Premises (excluding routine maintenance and repairs and
Incidental damage or destruction caused by accidents or vandalism for which
Tenant is responsible under Paragraph T) In the amount of the full replacement
value thereof, providing protection against those perils included within the
classification of "ell risks" Insurance and flood and/or earthquake Insurance,
If available, plus a policy of rental income Insurance In the amount of one
hundred (100x) percent of twelve (12) months Basic Rent, plus sums paid as
Additional Rent, if such Insurance cost Is increased due to Tenant's use of the
Premises, Tenant agrees to pay to Landlord the full 'cost of such Increase.
Tenant shall have no interest in nor any right to the proceeds of any Insurance
procured by Landlord for the Premises.
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Landlord and Tenant do each hereby respectively release the other, to the
extent of Insurance coverage of the releasing party, from any liability for loss
or damage caused by fire or any of the extended coverage casualties included in
the releasing party's insurance policies, Irrespective of the cause of such fire
or casualty; provided, however, that if the Insurance policy of either releasing
party prohibits such waiver, then this waiver shall not take effect until
consent to such waiver is obtained. If such waiver is so prohibited, the insured
party affected shall promptly notify the other party thereof.
13. INDEMNIFICATION Landlord shall not be liable to Tenant and Tenant hereby
waives all claims against landlord or any injury to or death of any person or
damage to or destruction of property in or about the Premises by or from any
cause whatsoever, Including, without limitation, gas, fire, oil, electricity
leakage of any character from the root, walls, basement or other portion of the
Premises but excluding, however, the nag xxxxx of Landlord, its agents,
servants, employees, invitees, or contractors of which negligence Landlord has
knowledge and reasonable time to correct. Except as to injury to persons or
damage to property to the extent arising from the willful misconduct or the
negligence of Landlord, its agents, servants, employees, invitees, or
contractors, Tenant shall hold Landlord harmless from and defend Landlord
against any and all expenses, including reasonable attorneys' fees, in
connection therewith, arising out of any injury to or death of any person or
damage to or destruction of property occurring in, on or about the Premises, or
any part thereof, from any cause whatsoever.
14. COMPLIANCE Tenant, at Its sole cost and expense, shall promptly comply with
a laws, statutes, ordinances an government rules, regulations or requirements
now or hereafter In effect; with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted; and with any
direction or occupancy certificate Issued pursuant to law by any public officer;
provided, however, that no such failure shall be deemed a breach of the
provisions if Tenant, immediately upon notification, commences to remedy or
rectify said failure. The judgment of any court of competent jurisdiction or the
admission of Tenant in any action against Tenant, whether Landlord be a party
thereto or not, that Tenant has violated any such law, statute, ordinance or
governmental rule, regulation, requirement, direction or provision, shall be
conclusive of that fact as between Landlord and Tenant. Tenant shall, at its
sole, cost and expense, comply with any and all requirements pertaining to said
Premises, of any insurance organization or company, necessary for the
maintenance of reasonable fire and public liability insurance covering
requirements pertaining to said Premises.
15. LIENS Tenant shall keep the Premises free from any Yens arising out of any
work performed, materials furnished or obligation Incurred by Tenant. In this
event that Tenant shall not, within ten (10) days following the Imposition of
such lien, cause the same to be released of record, Landlord shall have, in
addition to all other remedies provided herein and by law, the right, but no
obligation, to cause the same to be released by such means as it shall deem
proper, including payment of the claim giving rise to such lien. All sums paid
by Landlord for such purpose, and all expenses Incurred by it In connection
therewith, shall be payable to Landlord by Tenant on demand with Interest at the
prime rate of Interest as quoted by the Bank of America.
16. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, transfer, or
hypothecate the leasehold estate under this Lease, or any interest therein, and
shall not sublet the Premises or any put thereof, or any right or privilege
appurtenant thereto, or suffer any other person or entity
9
to occupy or use the Premises, or any portion thereof, without, in each case,
the prior written notice of Landlord which content will not be unreasonably
withheld. As a condition for granting this consent any assignment, transfer, or
subletting, Landlord shall require that (i) the sublease be a triple net
sublease and that the basic rent due under any such sublease be no less than the
then current market rent with annual increases at the then prevailing market
rent, (ii) that the sublease shall not provide for subtenant to have an option
to extend the term of the sublease or an option to expand the sublet space, and
(iii) Tenant to pay to Landlord, as Additional Rent, seventy-five percent (75%)
of all rents and/or additional consideration due Tenant from its assignees,
transferees, or subtenants in excess of the Rent payable to Tenant to Landlord
hereunder for the assigned, transferred and/or subleased space ("Excess Rent").
Tenant shall, by thirty (30) days written notice, advise Landlord or its intent
to assign or transfer Tenant's interest in the lease or sublet the Premises or
any portion thereof for any part of the term hereof. Within thirty (30) days
after receipt of said written notice, Landlord may, in its sole discretion,
elect to terminate this Lease as to the portion of the Premises described in
Tenant's notice on the date specified in Tenant's notice by giving written
notice of such election to terminate. If no such notice to terminate is given to
Tenant within said thirty (30) day period, Tenant may proceed to locate an
acceptable sublessee, assignee, or other transferred for presentment to Landlord
for Landlord's approval, all in accordance with the terms, covenants, and
conditions of this paragraph 16. If Tenant intends to sublet the entire Premises
and Landlord elects to terminate this Lease, this Lease shall be terminated on
the date specified in Tenant's notice. If, however, this Lease shall terminate
pursuant to the foregoing with respect to less than all the Premises, the rent,
as defined and reserved hereinabove shall be adjusted on a pro rata basis to the
number of square feet retained by Tenant, and this Lease as so amended shall
continue in full force and effect. In the event Tenant is allowed to assign,
transfer or sublet the whole or any part of the Premises, with the prior written
consent of Landlord, no assignee, transferee or subtenant shall assign or
transfer this Lease, either in whole a in part, a sublet the whole or any part
of the Premises, without also having obtained the prior written consent of
Landlord, a consent of Landlord to one assignment. transfer, hypothecation.
subletting, occupation or use by any other person shall not release Tenant from
any of Tenant's obligations hereunder or be deemed to be a consent to any
subsequent similar or dissimilar assignment. transfer, hypothecation,
subletting, occupation or use by any other person. Any such assignment,
transfer, hypothecation, subletting, occupation or use without such consent
shall be void and shall constitute a breach of this Lease by Tenant and shall,
at the option of Landlord exercised by written notice to Tenant, terminate this
Lease. The leasehold estate under this Lease shall not, nor shall any interest
therein, be assignable for any purpose by operation of law without consent of
Landlord. As a condition to its consent, Landlord quire Tenant to pay ail
expenses in connection with the assignment, and Landlord shall require Tenant's
assignee or transferee (or other assignees or transferees) to assume in writing
all of the obligations under this Lease and rot Tenant to remain liable to
Landlord under the Lease. Notwithstanding the above, in no event will Landlord
consent to a sub-sublease.
17. SUBORDINATION AND MORTGAGES In the event Landlord's title a leasehold
interest is now or hereafter encumbered by a deed of trust; upon the interest of
Landlord in the land and buildings in which the demised Premises are located, to
secure a loan from a lender (hereinafter referred to as "Lender") to Landlord,
Tenant shall, at the request of Landlord or Lender, execute In writing an
agreement subordinating its rights under this Lease to the lien of such deed of
trust, or, it so requested, agreeing that the Den of Lenders deed of trust shall
be or remain subject and subordinate to the rights of Tenant under this Lease.
Notwithstanding any
10
such subordination, Tenant's possession under this Lease shall not be disturbed
if Tenant is not in default and so long as Tenant shall pay all rent and observe
and perform all of the provisions set forth in this Lease.
18. ENTRY BY LANDLORD Landlord reserves; and shall at all reasonable times
after at least 24 hours notice (except in emergencies) have the right to enter
the Premises to inspect them; to perform any services to be provided by Landlord
thereunder; to make repairs or provide any services to a contiguous tenant(s);
to submit the Premises to prospective purchasers, mortgagers or tenants; to post
notices of nonresponsibility; and to after, improve or repair the Premises or
other parts of the building, all without abatement of rent, and may erect
scaffolding and other necessary structures in or through the Premises where
reasonably required by the character of the work to be performed; provided,
however that the business of Tenant shall be interfered with to the least extent
that is reasonably practical. Any entry to the Premises by Landlord for the
purposes provided for therein shall not under any circumstances be construed or
deemed to be a forcible or unlawful entry into or a detainer of the Premises or
an eviction, actual or constructive, of Tenant from the Premises or any portion
thereof.
19. BANKRUPTCY AND DEFAULT The commencement of a bankruptcy action or
liquidation action or reorganization action or Insolvency action or an
assignment of or by Tenant for the benefit of creditors, or any similar action
undertaken by Tenant, a the insolvency of Tenant, shall, at Landlord's option,
constitute a breach of this Lease by Tenant. If the trustee or receiver
appointed to serve during a bankruptcy, liquidation, reorganization, Insolvency
or similar action elects to reject Tenant's unexpired Lease, the trustee or
receiver shall notify Landlord in writing of its election within thirty (30)
days after an order for relief In a liquidation action or within thirty (30)
days after the commencement of any action.
Within thirty (30) days after court approval of the assumption of this
Lease, the trustee or receiver shall cure (or provide adequate assurance to the
reasonable satisfaction of Landlord that the trustee or receiver shall cure) any
and all previous defaults under the unexpired Lease and shall compensate
Landlord for all actual pecuniary loss and shall provide adequate assurance of
future performance undersold Lease to the reasonable satisfaction of Landlord.
Adequate assurance of future performance, as used herein, includes, but shall
not be limited to: (i) assurance of source and payment of rent, and other
consideration due under this Lease; (ii) assurance that the assumption or
assignment of this Lease will not breach substantially any provision, such as
radius, location, use, or exclusivity provision, in any agreement relating to
the above described Premises.
Nothing contained in this section shall affect the existing right of
Landlord to refuse, to accept an assignment upon commencement of or in
connection with a bankruptcy, liquidation, reorganization or insolvency action
or an assignment of Tenant for the benefit of creditors or other similar act
nothing contained in this Lease shall be construed as giving or granting or
creating an equity in the demised Premises to Tenant. In no event shall the
leasehold estate under this Lease, or any interest therein, be assigned by
voluntary or involuntary bankruptcy proceeding without the prior written consent
of Landlord. In no event shall this Lease or any rights or privileges hereunder
be an asset of Tenant under any bankruptcy, insolvency or reorganization
proceedings.
11
The failure to perform or honor any covenant, condition or representation
made under this Lease shall constitute a default hereunder by Tenant upon
expiration of the appropriate grace period hereinafter provided. Tenant shall
have a period of five (5) days from the date of written notice from Landlord
within which to cure any default in the payment of rental or adjustment thereto.
Tenant shall have a period of thirty (30) days from the date of written notice
from Landlord within which to cure any other default under this Lease. Upon an
uncured default of this Lease by Tenant, Landlord shall have the following
rights and remedies in addition to achy other rights or remedies available to
Landlord at law or in equity:
(a) The rights and remedies provided for by California Civil Code
Section 1951.2, including but not limited to, recovery of the worth at the time
of award of the amount by which the unpaid rent for the balance of the term
after the time of award exceeds the amount of rental loss for the same period
that Tenant proves could be reasonably avoided, as computed pursuant to
subsection (b) of said Section 1951.2. Any proof by Tenant under subparagraphs
(2) and (3) of Section 1951.2 of the California Civil Code of the amount of
rental loss that could be reasonably avoided shall be made In the following
manner. Landlord and Tenant shall each select a licensed real estate broker In
the business of renting property of the same type and use as the Premises and In
the same geographic vicinity. Such two real estate brokers shall select a third
licensed real estate broker, and the three licensed real estate brokers so
selected 'shall determine the amount of the rental loss that could be reasonably
avoided from the balance of the term of this Lease after the time of award. The
decision of the majority of said licensed real estate brokers shall be final and
binding upon the parties hereto.
(b) The rights and remedies provided by California Civil Code Section
which allows Landlord to continue the Lease in effect and to enforce all of its
'rights and remedies under this Lease, including the right to recover rent as it
becomes due for so long as Landlord does not terminate Tenant's right to
possession; acts of maintenance or preservation efforts to relet the Premises,
or the appointment of a receiver upon Landlord's initiative to protect its
interest under this Lease shall not constitute a termination of Tenant's right
to possession.
(c) The right to terminate this Lease by giving notice to Tenant in
accordance with applicable law.
(d) To the extent permitted by law, the right and power to enter the
Premises and remove therefrom all persons and property to store such property in
a public warehouse or elsewhere at the coat of and for the account of Tenant,
and to sell such property and apply such proceeds therefrom pursuant to
applicable California law. Landlord may from time to time sublet the Premises or
any part thereof for such term or terms (which may extend beyond the term of
this Lease) and at such rent and such other terms as Landlord in its reasonable
sole discretion may deem advisable, with the right to make alterations and
repairs to the Premises. Upon each subletting, (i) Tenant shall be immediately
liable to pay Landlord, in addition to indebtedness other than rent due
hereunder, the reasonable cost of such subletting, including, but not limited
to, reasonable attorneys' fees, and any real estate commissions actually paid
and the cost of such reasonable alterations and repairs incurred by Landlord and
the amount, if any, by which the rent hereunder for the period - of such
subletting (to the extent such period does not exceed the term hereof) exceeds
the amount to be paid as rent for the Premises for such period or (ii) at the
option of landlord, rents received from such subletting shall be applied first
to payment
12
of indebtedness other than rent due hereunder from Tenant to Landlord; second,
to the payment of any costs of such subletting and of such alterations: and
repairs; third to payment of rent due and unpaid hereunder, and the residue, if
any, shall be held by Landlord and applied in payment of future rent as the same
becomes due hereunder. If Tenant has been credited with any rent to be received
by such subletting under option (i) and such rent shall not be promptly paid to
Landlord by the subtenant(s), or it such rentals received from such subletting
under option (ii) during any month be less than that to be paid during that
month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord.
Such deficiency shall be calculated and paid monthly. No taking possession of
the Premises: by Landlord, shall be construed as an election on its part to
terminate this Lease unless a written notice of such intention be given to
Tenant. Notwithstanding any such subletting without termination, Landlord may at
any time hereafter elect to terminate this Lease for such previous breach.
(e) The right to have a receiver appointed for Tenant upon application
by Landlord, to take possession of the Premises and to apply any rental
collected from the Premises and to exercise all other rights and remedies
granted to landlord pursuant to subparagraph (d) above.
20. ABANDONMENT. Tenant shall not vacate or abandon the Premises at any time
during the term of this Lease, and if Tenant shall abandon, vacate or surrender
said Premises, or be dispossessed by the process of law, or otherwise, any
personal property belonging to Tenant and left on the Premises shall be deemed
to be abandoned, at the option of Landlord, except such property as may be
mortgaged to Landlord.
21. DESTRUCTION. In the event the Premises are destroyed in whole or in part
from any cause, except for routine maintenance and repairs and incidental damage
and destruction caused from vandalism and accidents for which Tenant is
responsible under Paragraph Landlord may, at its option:
(a) Rebuild or restore the Premises to their condition prior to the
damage or destruction, or
(b) TERMINATE THIS LEASE. (providing that the Premises is damaged to the
extent of 33 1/3% of the replacement cost). If Landlord does not give Tenant
notice in writing within thirty (30) days from the destruction of the Premises
of its election to either rebuild and restore them, or to terminate this Lease,
Landlord shall be deemed to have elected to rebuild or restore them, in which
event Landlord agrees, at its expense, except for any deductible, which is the
responsibility of Tenant, promptly to rebuild or restore the Premises to their
condition prior to the damage or destruction Tenant shall be entitled to a
reduction in rent from the date of such damage or destruction, provided Tenant
is not using any portion of such damaged area, while such repair is being made
in a proportion that the area of the Premises rendered untenable a such damage
bears to the total area of the Premises. If Landlord does not complete the
rebuilding or restoration within one hundred eighty (180) days following the
date of destruction (such period of time to be extended for delays caused by the
fault or neglect of Tenant or because of Acts of God, acts of public agencies,
labor disputes, strikes, fires, freight embargos, rainy or stormy weather,
inability to obtain materials, supplies or fuels, acts of contractors or
subcontractors, or delay of the contractors or subcontractors due to such causes
or other contingencies beyond the control of Landlord), then Tenant shall have
the right to terminate this Lease by giving fifteen
13
(15) days prior written notice to Landlord. Notwithstanding anything herein to
the contrary, Landlord's obligation to rebuild or restore shall be limited to
the building and interior improvements constructed by Landlord as they existed
as of the commencement date of the Lease and shall not include restoration of
Tenant's trade fixtures, equipment, merchandise, or any improvements,
alterations or additions made by Tenant to the Premises, which Tenant shall
forthwith replace or fully repair at Tenant's sole cost and expense provided
this Lease is not cancelled according to the provisions above.
Unless this Lease is terminated pursuant to the foregoing provisions, this
Lease shall remain in full force and effect. Tenant hereby expressly waives the
provisions of Section 1932, Subdivision 2, in Section 1933, Subdivision 4 of the
California Civil Code.
In the event that the building in which the Premises are situated is
damaged or destroyed to the extent of not less than 33,hx of the replacement
cost thereof, Landlord may elect to terminate this tease, whether the Premises
be injured or not, notwithstanding anything to the contrary herein, Landlord may
terminate this Lease in the event of an uninsured event, or if insurance
proceeds are insufficient to cover one hundred percent of the rebuilding costs
net of the deductible.
22. EMINENT DOMAIN If all or any part of the Premises shall be taken by any
public or quasi-public authority under the power of eminent domain or conveyance
in lieu thereof, this Lease shall terminate as to any portion of the Premises so
taken or conveyed on the date when title vests in the condemnor, and Landlord
shall be entitled to any arid all payment, income, rent, award, or any interest
therein whatsoever which may be paid or made in connection with such taking or
conveyance, and Tenant shall have no claim against Landlord or otherwise for the
value of any unexpired term of this Lease. Notwithstanding the foregoing
paragraph, any compensation specifically awarded Tenant for loss of business,
Tenant's personal property, moving cost or loss of goodwill, shall be and remain
the property of Tenant.
If any action or proceeding is commenced for such taking of the Premises or
any part thereof, or if Landlord is advised in writing by any entity or body
having the right or power of condemnation of its intention to condemn the
premises or any portion thereof, than Landlord shall have the right to terminate
this Lease by giving Tenant written notice thereof within sixty (60) days of the
date of receipt of said written advice, or commencement of said action or
proceeding, or taking conveyance, which termination shall take place as of the
first to occur of the last day of the calendar month next following the month in
which such notice is given or the date on which title to the Premises shall vest
in the condemnor.
In the event of such a partial taking or conveyance of the Premises, if the
portion of the Premises taken or conveyed is so substantial that the Tenant can
no longer reasonably conduct its business, Tenant shall have the privilege of
terminating this Lease within sixty (60) days from the date of such taking or
conveyance, upon written notice to Landlord of its intention so to do, and upon
giving of such notice this Lease shall terminate on the last day of the calendar
month next following the month in which such notice is given, upon payment by
Tenant of the rent from the date of such taking or conveyance to the date of
termination. '
14
If a portion of the Premises be taken by condemnation or conveyance in lieu
thereof and neither Landlord nor Tenant shall terminate this Lease as provided
herein, this Lease shall continue in full force and effect as to the part of the
Premises not so taken or conveyed, and the rent herein shall be apportioned as
of the date of such taking or conveyance so that thereafter the rent to be paid
by Tenant shall be in the ratio that the area of the portion of the Premises not
so taken or conveyed bears to the total area of the Premises prior to such
taking.
23. SALE OR CONVEYANCE BY LANDLORD In the event of a sale or conveyance of the
Premises or any interest therein, by any owner of the reversion than
constituting Landlord, the transferor shall thereby be released from any further
liability upon any of the terms, covenants or conditions (express or implied)
herein contained in favor of Tenant, and in such event, insofar as such transfer
is concerned, Tenant agrees to look solely to the responsibility of the
successor in interest of such transferor in and to the Premises and this Lease.
This Lease shall not be affected by any such sale or conveyance, and Tenant
agrees to attorn to the successor in interest of such transferor.
24. ATTORNMENT TO LENDER OR THIRD PARTY In the event the interest of Landlord
in the land and buildings in which the leased Premises are located (whether such
interest of Landlord is a fee title interest or a leasehold interest) is
encumbered by dead of trust, and such interest is acquired by the lender or any
third party through judicial foreclosure or by exercise of a power of sale at
private trustee's foreclosure sale, Tenant hereby agrees to attorn to the
purchaser at any such foreclosure sale and to recognize such purchaser as the
Landlord under this .Lease. In the event the lion of the deed of trust securing
the loan from a tender to Landlord is prior and paramount to the Lease, this
Lease shall nonetheless continue in full force and effect for the remainder of
the unexpired term hereof, at the same rental herein reserved and upon all the
other terms, conditions and covenants herein contained.
25. HOLDING OVER Any holding over by Tenant after expiration or other
termination of the term of this Lasso with the written consent of Landlord
delivered to Tenant shall not constitute a renewal or extension of the Lease or
give Tenant any rights in or to the leased Premises except as expressly provided
in this Lease. Any holding over after the expiration or other termination of the
term of this Lease, with the consent of landlord, shall be construed to be a
tenancy from month to month, on the same terms and conditions herein specified
insofar as applicable except that the monthly Basic Rent shall be increased to
an amount equal to one hundred fifty (150%) percent of the monthly Basic Rent
required during the last month of the Lease term.
26. CERTIFICATE OF ESTOPPEL Tenant shall at any time upon not less than ten
(10) days prior written notice: Landlord execute, acknowledge and deliver to
Landlord 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 to modified, is in full force
and effect) and the date to which the rent and other charges are paid in
advance, if any, and (ii) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder, or specifying
such defaults, if any, are claimed. Any such statement may be conclusively
relied upon by any prospective purchaser or encumbrancer of the Premises.
Tenant's failure to deliver such statement within such time shall be conclusive
upon Tenant that this Lease is in full force and effect, without modification
except as may be represented by
15
Landlord: that there are no uncured defaults in Landlords performance, and that
not more than one month's rent has been paid in advance.
27. CONSTRUCTION CHANGES It is understood that the description of the Premises
and the location of ductwork, plumbing and other facilities therein are subject
to such minor changes as Landlord or Landlord's architect determines to be
desirable in the course of construction of the Premises, and no such changes
shall affect this Lease or entitle Tenant to any reduction of rent hereunder or
result in any liability of Landlord to Tenant. Landlord does not guarantee the
accuracy of any drawings supplied to Tenant and verification of the accuracy of
such drawings rests with Tenant.
28. RIGHT OF LANDLORD TO PERFORM All terms, covenants and conditions of this
Lease to be performed or observed by Tenant at Tenant's sole cost and expense
and without any reduction of rent. If Tenant shall fail to pay any sum of money,
or other rent, required or observed by Tenant at Tenant's sole cost and expense
and without any reduction of rent. If Tenant shall fail to pay any sum of money,
or other rent, required to be paid by it hereunder and such failure shall
continue for five (5) days after written notice by Landlord, or shall fail to
perform any other term or covenant hereunder on its part to be performed, and
such failure shall continue for thirty (30) days after written notice thereof by
Landlord, Landlord, without waiving or releasing Tenant from any obligation of
Tenant hereunder, may, but shall not be obliged to, make any such payment or
perform any such other term or covenant on Tenants part to be performed. All
sums so paid by Landlord and all necessary costs of such performance by Landlord
together with interest thereon at the rate of the prime rate of interest per
annum as quoted by the Bank of America from the date of such payment on
performance by Landlord, shall be paid (and Tenant covenants to make such
payment) to Landlord on demand by Landlord, and Landlord shall have (in addition
to any other right or remedy of Landlord) the same rights and remedies in the
event of nonpayment by Tenant as in the case of failure by Tenant in the payment
of rent hereunder.
29. ATTORNEYS' FEES
A. In the event that either Landlord or Tenant should bring suit for
the possession of the Premises, for the recovery of any sum due under this
Lease, or because of the breach of any provision of this Lease, or for any other
relief against the other party hereunder, then all costs and expenses, including
reasonable attorneys' fees incurred by the prevailing party therein shall be
paid by the other party, which obligation on the part of the other party shall
be deemed to have accrued on the date of the commencement of such action and
shall be enforceable whether or not the action is prosecuted to judgment.
B. Should Landlord be named as a defendant in any suit brought against
Tenant in connection with or arising out of Tenant's occupancy hereunder. Tenant
shall pay to Landlord its costs and expenses incurred in such sun, including a
reasonable attorney's fee.
30. WAIVER The waiver by either party of the other party's failure to perform
or observe any term, covenant or condition herein contained to be performed or
observed by such waiving party shall not be deemed to be a waiver of such term,
covenant or
16
condition a of any subsequent failure of the party failing to perform or observe
the same or any other such term, covenant or condition therein contained, and no
custom or practice which may develop between the parties hereto during the term
hereof shall be deemed a waiver of, or in any way affect, the right of either
party to insist upon performance and observance by the other party in strict
accordance with the terms hereof.
31. NOTICES All notices, demands, requests, advices or designations which maybe
or are required to be given by either party to the other hereunder shall be in
writing. All notices, demands, requests, advices or designations by Landlord to
Tenant shall be sufficiently given, made or delivered if sent by United Stated
certified or registered mail, postage prepaid, addressed to Tenant at Viant
Corporation, Attn: Legal Department, Xxxxxxx Xxxxx, 0 Xxxxx Xxxxxx, Xxxxxx, XX
00000. All notices, demands, requests, advices or designations by Tenant to
Landlord shall be sent by United States certified or registered mail, postage
prepaid, addressed to Landlord at its offices at Xxxxx/Xxxxxxxxx, 0000 Xxxxxxx
Xxxxxxx Xxxx., Xxxxx 000, Xxxxx Xxxxx. XX 00000. Each notice, request, demand,
advice or designation referred to in this paragraph shall be deemed received on
the date of the personal service mailing thereof in the manner herein provided,
as the case may be.
32. EXAMINATION OF LEASE Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option for a lease,
and this instrument is not effective as a lease or otherwise until its execution
and delivery by both Landlord and Tenant.
33. DEFAULT BY LANDLORD Landlord shall not be in default unless Landlord fails
to perform obligations required of Landlord within a reasonable time, but in no
event earner than (30) days after written notice by Tenant to Landlord and to
the holder of any first mortgage or deed of trust covering the Premises whose
name and address shall have heretofore been furnished to Tenant in writing,
specifying wherein. Landlord has failed to perform such obligations; provided,
however, that if the nature of Landlord's obligations is such that more than
thirty (30) days are required for, performance, then Landlord shall not be in
default if Landlord commences performance within such thirty (30) day period and
thereafter diligently prosecutes the awe to completion.
34. CORPORATE AUTHORITY If Tenant is a corporation (or, a partnership), each
individual executing this Lease on behalf of said corporation (or partnership)
represents and warrants that he is duly authorized to execute and deliver this
Lease on behalf of said corporation (or partnership) in accordance with the
by-laws of said corporation (or partnership in accordance with the partnership
agreement) and that this Lease is binding upon said corporation (or partnership)
in accordance with its terms. If Tenant is a corporation, Tenant shall, within
thirty (30) days after execution of this Lease, deliver to Landlord a certified
copy of the resolution of the Board of Directors of said corporation authorizing
or ratifying the execution of this Lease.
35. [DELETED]
36. LIMITATION OF LIABILITY In consideration of the benefits accruing
hereunder. Tenant and all successors and assigns covenant and agree that, in the
event of any actual or alleged failure, breach or default hereunder by Landlord:
17
(a) the sole and exclusive remedy shall be against i Landlord's interest
in the Premises leased herein;
(b) no partner of Landlord shall be sued or named as a party in any suit
or action (except as may be necessary to secure jurisdiction of the
partnership);
(c) no service of process shall be made against any partner of Landlord
(except as may be necessary to secure jurisdiction of the partnership);
(d) no partner of Landlord shall be required to answer or otherwise
plead to any service of process;
(e) no judgment will be taken against any partner of Landlord;
(f) any judgment taken against any partner of Landlord may be vacated
and set aside at any time without hearing;
(g) no writ of execution will ever by levied against the assets of any
partner of Landlord;
(h) these covenants and agreements are enforceable both by Landlord and
also by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements shall be
applicable to any covenant or agreement either expressly contained in this Lease
or imposed by statute or at common law.
37. SIGNS No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside of
the Premises or any exterior windows of the Premises without the written consent
of Landlord first had and obtained and Landlord shall have the right to remove
any such sign, placard, picture, advertisement, name or notice without notice to
and at the expense of Tenant. If Tenant is allowed to print or aft or in any way
place a sign in, on, or about the Premises, upon expiration or other sooner
termination of this Lease. Tenant at Tenant's sole cost and expense shall both
remove such sign and repair all damage in such a manner as to restore all
aspects of the appearance of the Premises to the condition prior to the
placement of said sign.
All approved signs or lettering on outside doors shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved of by
Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door partition or wall which may appear unsightly from
outside the Premises.
38 MISCELLANEOUS AND GENERAL PROVISIONS
A. USE OF BUILDING NAME. Tenant shall not, without the written consent
of Landlord, use the name of the building for any purpose other than as the
address of the business conducted by Tenant in the Premises.
18
B. CHOICE OF LAW; SEVERABILITY. This Lease shall in all respects be
governed by and construed in accordance with the laws of the State of
California. If any provision of this Lease shall be invalid, unenforceable or
ineffective for any reason whatsoever, all other provisions hereof shall be and
remain in full force and effect.
C. DEFINITION OF TERMS. The term "Premises" includes the space leased
hereby and any improvements now or hereafter installed therein or attached
thereto. The term "Landlord" or any pronoun used in place thereof includes the
plural as well as the singular and the successors and assigns of Landlord. The
term "Tenant" or any pronoun used in place thereof includes the plural as well
as the singular and individuals, firms, associations, partnerships and
corporations, and their and each of their respective heirs, executors,
administrators, successors and permitted assigns, according to the context
hereof, and the provisions of this Lease shall inure to the benefit of and bind
such heirs, executors, administrators, successors and permitted assigns.
The term "person" includes the plural as well as the singular and
individuals, firms, associations, partnerships and corporations. Words used in
any gender include other genders. It there be more than one Tenant the
obligations of Tenant hereunder are joint and several. The paragraph headings of
this Lease are for convenience of reference only and shall have no effect upon
the construction or interpretation of any provision hereof.
D. TIME OF ESSENCE. Time is of the essence of this Lease and of each
and all of its provisions.
E. QUITCLAIM. At the expiration or earlier termination of this Lease;
Tenant shall execute, acknowledge and deliver to Landlord, within ten (10) days
after written demand from Landlord to Tenant, any quitclaim deed or other
document required by any reputable title company, licensed to operate in the
State of California, to remove the cloud or encumbrance created by this Lease
from the real property of which Tenant's Premises are a part.
F. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This instrument along
with any exhibits and attachments hereto constitutes the entire agreement
between Landlord and Tenant relative to the Premises and this agreement and the
exhibits and attachments may be altered, amended or revoked only by an
instrument in writing signed by both Landlord and Tenant. Landlord and Tenant
agree hereby that all prior or contemporaneous oral agreements between and among
themselves and their agents or representatives relative to the leasing of the
Premises are merged in or revoked by this agreement.
G. RECORDING. Neither Landlord nor Tenant shall record this Lease or a
short form memorandum hereof without the consent of the other.
H. AMENDMENTS FOR FINANCING. Tenant further agrees to execute any
amendments required by a lender to enable Landlord to obtain financing, so long
as Tenant's rights hereunder are not substantially affected.,,
I. ADDITIONAL PARAGRAPHS. Paragraphs 39 through 53 are added hereto and
are included as a part of this lease.
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J. CLAUSES, PLATS AND RIDERS. Clauses, plats and riders, if any, signed
by Landlord and Tenant and endorsed on or affixed to this Lease area part
hereof.
K. DIMINUTION OF LIGHT AIR OR VIEW. Tenant covenants and agrees that no
diminution or shutting off of light, air or view by any structure which may be
hereafter erected (whether or not by Landlord) shall in any way affect his
Lease, entitle Tenant to any reduction of rent hereunder or result in any
liability of Landlord to Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this
Lease as of the day and year last written below.
LANDLORD: TENANT:
XXXX XXXXXXXXX SURVIVOR'S TRUST VIANT CORPORATION, a Delaware
corporation
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxx Xxxxxxx
-------------------------------- -------------------------------
Xxxx Xxxxxxxxx, Trustee Xxxxxx Xxxxxxx
Date: June 6, 2000 Title: CFO
-------------------------------- -------------------------------
XXXXXXX X. XXXXX SEPARATE
PROPERTY TRUST
Type or Print Name Xxxxxx Xxxxxxx
-------------------
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx, Trustee
Date: June 6, 2000 Date: June 2, 2000
-------------------------------- --------------------------------
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Paragraphs 39 through 53 to Lease Agreement dated May 12, 2000, By and Between
the Xxxx Xxxxxxxxx Survivor's Trust and the Xxxxxxx X. Xxxxx Separate Property
Trust, as Landlord, and VIANT CORPORATION, A DELAWARE CORPORATION, as Tenant for
19,053+/- (plus or minus) Square Feet of Space Located at 000 Xxxxx Xxxxx,
Xxxxxxxx Xxxx, Xxxxxxxxxx.
39. BASIC RENT. Subject to Paragraph 53 below, and in accordance with Paragraph
4A herein, the total aggregate sum of EIGHT MILLION SIX HUNDRED EIGHTY THOUSAND
FIVE HUNDRED FORTY SIX AND 80/100 DOLLARS ($8,680,546.80), shall be payable as
follows:
On June 7, 2000, the sum of ONE HUNDRED SIX THOUSAND SIX HUNDRED NINETY SIX AND
80/100 DOLLARS ($106,696.80) shall be due, representing the prorated Basic Rent
for the period of June 7, 2000 through June 30, 2000.
On July 1, 2000, the sum of ONE HUNDRED THIRTY THREE THOUSAND THREE HUNDRED
SEVENTY ONE AND NO/100 DOLLARS ($133,371.00) shall be due, and a like sum due on
the first day of each month thereafter, through and including June 1, 2001.
On July 1, 2001, the sum of ONE HUNDRED THIRTY EIGHT THOUSAND ONE HUNDRED THIRTY
FOUR AND 25/100 DOLLARS ($138,134.25) shall be due, and a like sum due on the
first day of each month thereafter, through and including June 1, 2002.
On July 1, 2002, the sum of ONE HUNDRED FORTY TWO THOUSAND EIGHT HUNDRED NINETY
SEVEN AND 50/100 DOLLARS ($142,897.50) shall be due, and a like sum due on the
first day of each month thereafter, through and including June 1, 2003.
On July 1, 2003, the sum of ONE HUNDRED FORTY SEVEN THOUSAND SIX HUNDRED SIXTY
AND 75/100 DOLLARS ($147,660.75) shall be due, and a like sum due on the first
day of each month thereafter, through and including June 1, 2004.
In July 1, 2004, the sum of ONE HUNDRED FIFTY TWO THOUSAND FOUR HUNDRED TWENTY
FOUR AND NO/100 DOLLARS ($152,424.00) shall be due, and alike sum due on the
first day of each month thereafter, through and including June 1, 2005; or until
the entire aggregate sum of EIGHT MILLION SIX HUNDRED EIGHTY THOUSAND FIVE
HUNDRED FORTY SIX AND 80/100 DOLLARS ($8,680,546.80) has been paid.
40. "AS-IS" BASIS. Subject only to Landlord having completed, at Landlord's
sole cost and expense, the roof, HVAC and plumbing repairs referenced in the
quotes from Landlord's contractors as set forth on EXHIBIT C-1 (as relates to
roof repairs), EXHIBIT C-2 (as relates to HVAC repairs) and EXHIBIT C-3 (as
relates to plumbing repairs), it is hereby agreed that the Premises leased
hereunder is leased strictly on an "as-is" basis and in its present condition,
and in the configuration as shown on EXHIBIT B attached hereto, and by reference
made a part hereof. It is specifically agreed between the parties that Landlord
shall not be required to make, nor be responsible for any cost, in connection
with any repair, restoration, and/or improvement to the Premises in order for
this Lease to commence, or thereafter, throughout the Term of this Lease.
Notwithstanding anything to the contrary within this Lease, Landlord makes no
warranty or representation of any kind or nature whatsoever as to the condition
or repair of the Premises, nor as to the use or occupancy which may be made
thereof.
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41. RULES AND REGULATIONS AND COMMON AREA. Subject to the terms and conditions
of this Lease and such Rules and Regulations as Landlord may from time to time
prescribe, Tenant and Tenant's employees, invitees and customers shall, in
common with other occupants of the Parcel/Building in which the premises are
located, and their respective employees, invitees and customers, and others
entitled to the use thereof, have the non-exclusive right to use the access
roads, parking areas, and facilities provided and designated by Landlord for the
general use and convenience of the occupants of the Parcel/Building in which the
Premises are located, which areas and facilities are referred to herein as
"Common Area." This right shall terminate upon the termination of this Lease.
Landlord reserves the right from time to time to make changes in the shape,
size, location, amount and extent of Common Area. Landlord further reserves the
right to promulgate such reasonable rules and regulations relating to the use of
the Common Area, and any part or parts thereof, as Landlord may deem appropriate
for the best interests of the occupants of the Parcel/Building. Such Rules and
Regulations may be amended by Landlord from time to time, with or without
advance notice, and all amendments shall be effective upon delivery of a copy to
Tenant. Landlord responsible to Tenant for the non-performance by any other
tenant or occupant of the Parcel Building of any of said Rules and Regulations.
Landlord shall operate, manage and maintain the Common Area. The manner in which
the Common Area shall be maintained and the expenditures for such maintenance
shall be at the discretion of Landlord.
42. EXPENSES OF OPERATION MANAGEMENT AND MAINTENANCE OF THE COMMON AREAS OF THE
PARCEL AND BUILDING 1N WHICH THE PREMISES ARE LOCATED. As Additional Rent and in
accordance with Paragraph 4D of this Lease, Tenant shall pay to Landlord
Tenant's proportionate share (calculated on a square footage or other equitable
basis as calculated by landlord) of all expenses of operation, management,
maintenance and repair of the Common Areas of the Parcel including, but not
limited to, license, permit, and inspection fees; security; utility charges
associated with exterior landscaping and lighting (including water and sewer
charges); all charges incurred in the maintenance and replacement of landscaped
areas, lakes, parking lots and paved areas (including repairs, replacement,
resealing and restriping), sidewalks, driveways, maintenance, repair and
replacement of all fixtures and electrical, mechanical and plumbing systems;
supplies, materials, equipment and tools; the cost of capital expenditures which
have the effect of reducing operating expenses, provided, however, that in the
event Landlord makes such capital improvements, Landlord may amortize its
investment in said improvements (together with interest at the rate of fifteen
(15%) percent per annum on the unamortized balance) as an operating expense in
accordance with standard accounting practices, provided, that such amortization
is not at a rate greater than the anticipated savings in the operating expenses.
As Additional Rent and in accordance with Paragraph 4D of this Lease, Tenant
shall pay its proportionate share (calculated on a square footage or other
equitable basis as calculated by Landlord) of the cost of operation (including
common utilities), management, maintenance, and repair of the building
(including structural and common areas such as lobbies, restrooms, janitor's
closets, hallways, elevators, mechanical and telephone rooms, stairwells,
entrances, spaces above the ceilings and janitorization of said common areas) in
which the Premises are located. The maintenance items herein referred to
include, but are not limited to, all windows,
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window frames, plate glass, glazing, truck doors, main plumbing systems of the
building (such as water drain lines, sinks, toilets, faucets, drains, showers
and water fountains), main electrical systems (such as panels and conduits),
heating and air-conditioning systems (such as compressors, fans, air handlers,
ducts, boilers, heaters), structural elements and exterior surfaces of the
building; store fronts, roof, downspouts, building common area interiors (such
as wall coverings, window coverings, floor coverings and partitioning),
ceilings, building exterior doors, skylights (if any), automatic fire
extinguishing systems, and elevators (if any); license, permit and inspection
fees; security, supplies, materials, equipment and tools; the cost of capital
expenditures which have the effect of reducing operating expenses, provided,
however, that in the event Landlord makes such capital improvements, Landlord
may amortize its investment in said improvements (together with interest at the
rate of fifteen (15%) percent per annum on the unamortized balance) as an
operating expense in accordance with standard accounting practices, provided,
that such amortization is not at a rate greater than the anticipated savings in
the operating expenses. Tenant hereby waives all rights hereunder, and benefits
of, subsection 1 of Section 1932 and Sections 1941 and 1942 of the California
Civil Code and under any similar law, statute or ordinance now or hereafter in
effect.
"Additional Rent" as used herein shall not include Landlord's debt repayments;
interest on charges, expenses directly or indirectly incurred by Landlord for
the benefit of any other tenant; cost for the installation of partitioning or
any other tenant improvements; cost of attracting tenants; depreciation;
interest; or executive salaries.
43. UTILITIES OF THE BUILDING IN WHICH THE PREMISES ARE LOCATED. As Additional
Rent and in accordance with Paragraph 4D of this Lease Tenant shall pay its
proportionate share (calculated on a square footage or other equitable basis as
calculated by Landlord) of the cost of all utility charges such as water, gas,
electricity, (telephone, telex and other electronic communications service, if
applicable) sewer service, waste pick-up and any other utilities, materials or
services furnished directly to the building in which the Premises are located,
including, without limitation, any temporary or permanent utility surcharge or
other exactions whether or not hereinafter imposed.
Landlord shall not be liable for and Tenant shall not be entitled to any
abatement or reduction of rent by reason of any interruption or failure of
utility services to the Premises when such interruption or failure is caused by
accident, breakage, repair, strikes, lockouts, or other labor disturbances or
labor disputes of any nature, or by any other cause, similar or dissimilar,
beyond the reasonable control of Landlord.
Provided that Tenant is not in default in the performance or observance of an
the t , coven is or conditions of this Lease to be performed or observed by it,
Landlord shall furnish to the Premises between the hours of 8:00 a.m. and 6:00
p.m., Mondays through Fridays (holidays excepted) and subject to the rules and
regulations of the Common Area hereinbefore referred to, reasonable quantities
of water, gas and electricity suitable for the intended use of the Premises and
heat and air-conditioning required in Landlord's judgment for the comfortable
use and occupation of the Premises for such purposes. Tenant agrees that at all
times it will cooperate fully with Landlord and abide by all regulations and
requirements that Landlord may prescribe for the proper functioning and
protection of the building heating, ventilating and air-conditioning systems.
Whenever heat generating machines, equipment, or any other devices (including
exhaust fans)
23
are used in the Premises by Tenant which affect the temperature or otherwise
maintained by the air-conditioning system, Landlord shall have the right to
install supplementary air-conditioning units in the Premises and the cost
thereof, including the cost of installation and the cost of operation and
maintenance thereof, shall be paid by Tenant to Landlord upon demand by
Landlord. Tenant will not, without the written consent of Landlord, use any
apparatus or device in the Premises (including, without limitation), electronic
data processing machines or machines using current in excess of 110 Volts which
will in any way increase the amount of electricity, gas, water or
air-conditioning usually furnished or supplied to premises being used as general
office space, or connect with electric current (except through existing
electrical outlets in the Premises), or with gas or water pipes any apparatus or
device for the purposes of using electric current, gas, or water. If Tenant
shall require water, gas, or electric current in excess of that usually
furnished or supplied to premises being used as general office space, Tenant
shall first obtain the written consent of Landlord, which consent shall not be
unreasonably withheld and Landlord may cause an electric current, gas or water
meter to be installed in the Premises in order to measure the amount of electric
current, gas or water consumed for any such excess use. The cost of any such
meter and of the installation, maintenance and repair thereof, all charges for
such excess water, gas and electric current consumed (as shown by such meters
and at the rates then charged by the furnishing public utility); and any
additional expense incurred by Landlord in keeping account of electric current,
gas, or water so consumed shall be paid by Tenant, and Tenant agrees to pay
Landlord therefor promptly upon demand by Landlord.
44. PARKING. Tenant shall have the right to the nonexclusive use of eighty one
(81) parking spaces in the common parking area of the building. Tenant agrees
that Tenant, Tenant's employees, agents, representatives, and/or invitees shall
not use parking spaces in excess of said 81 parking spaces allocated to Tenant
hereunder. Landlord shall have the right, at Landlord's sole discretion, to
specifically designate the location of Tenant's parking spaces within the common
parking area of the building in the event of a dispute among the tenants
occupying the building referred to herein, in which event Tenant agrees that
Tenant, Tenant's employees, agents, representatives and/or invitees shall not
use any parking spaces other than those parking spaces specifically designated
by Landlord for Tenant's use. Said parking spaces, if specifically designated by
Landlord to Tenant, may be relocated by Landlord at any time, and from time to
time. Landlord reserves the right, at Landlord's sole discretion, to rescind any
specific designation of parking spaces, thereby returning Tenant's parking
spaces to the common parking area. Landlord shall give Tenant written notice of
any change in Tenant's parking spaces. Tenant shall not, at any tithe, park, or
permit to be parked, any trucks or vehicles adjacent to the loading area so as
to interfere in any way with the use of such areas, nor shall Tenant, at any
time, park or permit the parking of Tenant's trucks and other vehicles or the
trucks and vehicles of Tenant's suppliers or others, in any portion of the
common areas not designated by Landlord for such use by Tenant. Tenant shall not
park nor permit to be parked, any inoperative vehicles or equipment on any
portion of the common parking area or other common areas of the building. Tenant
agrees to assume responsibility for compliance by its employees with the parking
provision contained herein. If Tenant or its employees park in other than
designated parking areas, then Landlord may charge Tenant, as an additional
charge, and Tenant agrees to pay Ten Dollars ($10.00) per day for each day or
partial day each such vehicle is parking in any area other than that designated.
Tenant hereby authorizes Landlord, at Tenant's sole expense, to tow away from
the building any vehicle belonging to Tenant or Tenant's employees parked in
24
violation of these provisions, or to attach violation stickers or notices to
such vehicles. Tenant shall use the parking area for vehicle parking only and
shall not use the parking areas for storage.
45. ASSESSMENT CREDITS. The demised property herein may be subject to a special
assessment levied by the City of Mountain View as part of an Improvement
District. As a part of said special assessment proceedings (if any), additional
bonds were or may be sold and assessments were or may be levied to provide for
construction contingencies and reserve funds. Interest shall be earned on such
funds created for contingencies and on reserve funds which will be credited for
the benefit of said assessment district. To the extent surpluses are created in
said district through unused contingency funds, interest earnings or reserve
funds, such surpluses shall be deemed the prop Notwithstanding that such
surpluses may be credited on assessments otherwise against the Lease Premises,
Tenant shall pay to Landlord, as additional rent if, and at the time any such
credit surpluses, an amount equal to all such surpluses so credited. For
example: if (i) the property is subject to an annual assessment of $1,000.00,
and (ii) a surplus of $200.00 is credited towards the current year's assessment
which reduces the assessment amount shown on the property tax xxxx from
$1,000.00 to $800.00, Tenant shall, upon receipt of notice from Landlord, pay to
Landlord said $200.00 credit as Additional Rent.
46. ASSIGNMENT AND SUBLETTING (CONTINUED).
A. Notwithstanding the foregoing, Landlord and Tenant agree that it
shall not be unreasonable for Landlord to refuse to consent to a proposed
assignment, sublease or other transfer ("Proposed Transfer") if the Premises or
any other portion of the Property would become subject to additional or
different Government Requirements as a direct or indirect consequence of the
Proposed Transfer and/or the Proposed Transferee's use and occupancy of the
Premises and the Property. However, Landlord may, in its sole discretion,
consent to such a Proposed Transfer where Landlord is indemnified by Tenant and
(i) Subtenant or (ii) Assignee, in form and substance satisfactory to Landlord's
counsel, by Tenant and/or the Proposed Transferee FROM AND AGAINST ANY AND ALL
costs, expenses, obligations and liability arising out of the Proposed Transfer
and/or the Proposed Transferee's use and occupancy of the Premises and the
Property.
B. Any and all sublease agreement(s) between Tenant and any and all
subtenant(s) (which agreements must be consented to by Landlord, pursuant to the
requirements of this Lease) shall contain the following language:
"If Landlord and Tenant jointly and voluntarily elect, for any reason
whatsoever, to terminate the Master Lease prior to the scheduled
Master Lease termination date, then this Sublease (if then still in
effect) shall terminate concurrently with the termination of the
Master Lease. Subtenant expressly acknowledges and agrees that (1) the
voluntary termination of the Master Lease by Landlord and Tenant and
the resulting termination of this Sublease shall not give Subtenant
any right or power to make any legal or equitable claim against
Landlord, including without limitation any claim for interference with
contract or interference with prospective economic advantage, and (2)
Subtenant hereby waives any and all rights it may have under law or at
equity against Landlord to challenge such an early termination of the
Sublease, and unconditionally releases and relieves Landlord, and its
officers, directors, employees and agents, from any and all
25
claims, demands, and/or causes of action whatsoever (collectively,
"Claims"), whether such matters are known or unknown, latent or
apparent, suspected or unsuspected, foreseeable or unforeseeable,
which Subtenant may have arising out of or in connection with any such
early termination of this Sublease. Subtenant knowingly and
intentionally waives any and all protection which is or may be given
by Section 1542 of the California Civil Code which provides as
follows: "A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with debtor.
The term of this Sublease is therefore subject to early termination.
Subtenant's initials here below evidence (a) Subtenant's consideration
of and agreement to this early termination provision, (b) Subtenant's
acknowledgment that, in determining the net benefits to be derived by
Subtenant under the terms of this Sublease, Subtenant has anticipated
the potential for early termination, and (c) Subtenant's agreement to
the general waiver and release of Claims above.
Initials: Initials: "
-------------- ---------------
Subtenant Tenant
C. PERMITTED SUBLEASE. Landlord hereby acknowledges that Tenant
operates a consulting service for start up companies, and as a part of Tenant's
consulting service, Tenant intends to provide said start up companies with
office space and administrative support within Tenant's Premises. Therefore,
Landlord acknowledges that Tenant, during the Term of this Lease, intends to
sublease up to fifty percent of the Leased Premises. Provided Tenant is not in
default of this Lease, Landlord agrees that it will not exercise its right, as
provided for in Paragraph 16, to terminate the Lease as a result of a request by
Tenant to sublease fifty percent or less of the Premises to no more than four
separate start up companies at any given time ("Permitted Sublease"). In such
event, Landlord agrees to issue Landlord's standard consent to said sublease,
subject to (a) Tenant submitting to Landlord a copy of said sublease (prior to
said sublease commencing), (b) Landlord, Tenant and Subtenant thereafter
executing Landlord's standard Consent to Sublease agreement and (c) Landlord
receives payment from Tenant of Landlord's costs for processing said Sublease
Consent prior to said sublease commencing.
D. Notwithstanding anything to the contrary in Paragraph 16, prior to
sharing any Excess Rent with Landlord, Tenant shall first be entitled to recover
from such Excess Rent the amount of any reasonable leasing commissions paid by
Tenant to third party brokers not affiliated with Tenant.
47. BANKRUPTCY AND DEFAULT. Paragraph 19 is modified to provide that with
respect to non-monetary defaults not involving Tenant's failure to pay Basic
Rent or Additional Rent, Tenant shall not be in default of any non-monetary
obligation if (i) more than thirty (30) days is required to cure such
non-monetary default, and (ii) Tenant commences cure of such default as soon as
reasonably practicable after receiving written notice of such default from
Landlord and thereafter continuously and with due diligence prosecutes such cure
to completion.
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48. ABANDONMENT. Paragraph 20 is modified to provide that Tenant shall not be
in default under the Lease if it leaves all or any part of Premises vacant so
long as (i) Tenant is performing all of its other obligations under the Lease
including the obligation to pay Basic Rent and Additional Rent (ii) Tenant
provides on-site security during normal business hours for those parts of the
Premises left vacant, (iii) such vacancy does not materially and adversely
affect the validity or coverage of any policy of insurance carried by Landlord
with respect to the Premises, and (iv) the utilities and heating and ventilation
system are operated and maintained to the extent necessary to prevent damage to
the Premises or its systems.
49. HAZARDOUS MATERIALS. Landlord and Tenant agree as follows with respect to
the existence or use of "Hazardous Materials" (as defined herein) on, in, under
or about the Premises and real property located beneath said Premises and the
common areas of the Parcel, which includes the entire parcel of land on which
the Premises are located as shown in Green on EXHIBIT A attached hereto
(hereinafter collectively referred to as the "Property"):
A. As used herein, the term "Hazardous Materials" shall mean any
material, waste, chemical, mixture or byproduct which is or hereafter is
defined, listed or designated under Environmental Laws (defined below) as a
pollutant, or as a contaminant, or as a toxic or hazardous substance, waste or
material, or any other unwholesome, hazardous, toxic, biohazardous, or
radioactive material, waste, chemical, mixture or byproduct, or which is listed,
regulated or restricted by any Environmental Law (including, without limitation,
petroleum hydrocarbons or any distillates or derivatives or fractions thereof,
polychlorinated biphenyls, or asbestos). As used herein, the term "Environmental
Laws" shall mean any applicable Federal, State of California or local government
law (including common law), statute, regulation, rule, ordinance, permit,
license, order, requirement, agreement, or approval, or any determination,
judgment, directive, or order of any executive or judicial authority at any
level of Federal, State of California or local government (whether now existing
or subsequently adopted or promulgated) relating to pollution or the protection
of the environment, ecology, natural resources, or public health and safety.
B. Tenant shall obtain Landlord's written consent, which maybe withheld
in Landlord's discretion, prior to the occurrence of any Tenant's Hazardous
Materials Activities (defined below); provided, however, that Landlord's consent
shall not be required for normal use in compliance with applicable Environmental
Laws of customary household and office supplies (Tenant shall first provide
Landlord with a list of said materials use), such as mild cleaners, lubricants
and copier toner. As used herein, the term "Tenant's Hazardous Materials
Activities" shall mean any and all use, handling, generation, storage, disposal,
treatment, transportation, release, discharge, or emission of any Hazardous
Materials on, in, beneath, to, from, at or about the Property, in connection
with Tenant's use of the Property, or by Tenant or by any of Tenant's agents,
employees, contractors, vendors, invitees, visitors or its future subtenants or
assignees. Tenant agrees that any and all Tenant's Hazardous Materials
Activities shall be conducted in strict, full compliance with applicable
Environmental Laws at Tenant's expense, and shall not result in any
contamination of the Property or the environment. Tenant agrees to provide
Landlord with prompt written notice of any spill or release of Hazardous
Materials at the Property during the term of the Lease of which Tenant becomes
aware, and further agrees to provide Landlord with prompt written notice of any
violation of Environmental Laws in connection with Tenant's Hazardous Materials
Activities of which Tenant becomes aware. If
27
Tenant's Hazardous Materials Activities involve Hazardous Materials other than
normal use of customary. household and office supplies, Tenant also agrees at
Tenant's expense: (i) to install such H Materials monitoring, storage and
containment devices as Landlord reasonably deems necessary (Landlord shall have
no obligation to evaluate the need for any such installation or require any such
installation); (ii) provide Landlord with a written inventory of such Hazardous
Materials, including an update of same each .year upon the anniversary date of
the Commencement Date of the Lease ("Anniversary Date"); and (iii) on each
Anniversary Date, to retain a qualified environmental consultant, acceptable to
Landlord, to evaluate whether Tenant is in compliance with all applicable
Environmental Laws with respect to Tenant's Hazardous Materials Activities.
Tenant, at its expense, shall submit to Landlord a report from such
environmental consultant which discusses the environmental consultant's findings
within two (2) months of each Anniversary Date. Tenant, at its expense, shall
promptly undertake and complete any and all steps necessary, and in full
compliance with applicable Environmental Laws, to fully correct any and all
problems or deficiencies identified by the environmental consultant, and
promptly provide Landlord with documentation of all such corrections.
C. Prior to termination or expiration of the Lease, Tenant, at its
expense, shall (i) properly remove from the Property all Hazardous Materials
which come to be located at the Property in connection with Tenant's Hazardous
Materials Activities, and (ii) fully comply with and complete all facility
closure requirements of applicable Environmental Laws regarding Tenant's
Hazardous Materials Activities, including but not limited to (x) properly
restoring and repairing the Property to the extent damaged by such closure
activities, and (y) obtaining from the local Fire Department or other
appropriate governmental authority with jurisdiction a written concurrence that
closure has been completed in compliance with applicable Environmental Laws.
Tenant shall promptly provide Landlord with copies of any claims, notices, work
plans, data and reports prepared, received or submitted in connection with any
such closure activities.
D. If Landlord, in its sole discretion, believes that the Property has
become contaminated as a result of Tenant's Hazardous Materials Activities,
Landlord in addition to any other rights it may have under this Lease or under
Environmental Laws or other laws, may enter upon the Property and conduct
inspection, sampling and analysis, including but not limited to obtaining and
analyzing samples of soil and groundwater, for the purpose of determining the
nature and extent of such contamination. Tenant shall promptly reimburse
Landlord for the costs of such an investigation, including but not limited to
reasonable attorneys' fees Landlord incurs with respect to such investigation,
that discloses Hazardous Materials contamination for which Tenant is liable
under this Lease. Notwithstanding the above, Landlord may, at its option and in
its sole and absolute discretion, choose to perform remediation and obtain
reimbursement for cleanup costs as set forth herein from Tenant. Any cleanup
costs incurred by Landlord as the result of Tenant's Hazardous Materials
Activities shall be reimbursed by Tenant within thirty (30) days of presentation
of written documentation of the expense to Tenant by Landlord. Such reimbursable
costs shall include, but not be limited to, any reasonable consultant and
attorney fees incurred by Landlord. Tenant shall take all actions necessary to
preserve any claims it has against third parties, including, but not limited to,
its insurers, for claims related to its operation, management of Hazardous
Materials or contamination of the Property. Except as may be required of Tenant
by applicable Environmental Laws, Tenant shall not perform any sampling,
testing, or drilling to identify the presence of any Hazardous Materials at the
Property, without Landlord's prior written consent which may be withheld in
Landlord's discretion. Tenant shall
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promptly provide Landlord with copies of any claims, notices, work plans, data
and reports prepared, received or submitted in connection with any sampling,
testing or drilling performed pursuant to the preceding sentence.
E. Tenant shall indemnify, defend (with legal counsel acceptable to
Landlord, whose consent shall not unreasonably be withheld) and hold harmless
Landlord, its employees, assigns, successors, successors-in-interest, agents and
representatives from and against any and all claims (including but not limited
to third party claims from a private party or a government authority),
liabilities, obligations, losses, causes of action, demands, governmental
proceedings or directives, fines, penalties, expenses, costs (including but not
limited to reasonable attorneys', consultants' and other experts' fees and
costs), and damages, which arise from or relate to: (i) Tenant's Hazardous
Materials Activities; (ii) any Hazardous Materials contamination caused by
Tenant prior to the Commencement Date of the Lease; or (iii) the breach of any
obligation of Tenant under this Paragraph 49 (collectively, "Tenant's
Environmental Indemnification"). Tenant's Environmental Indemnification shall
include but is not limited to the obligation to promptly and fully reimburse
Landlord for losses in or reductions to rental income, and diminution in fair
market value of the Property. Tenant's Environmental Indemnification shall
further include but is not limited to the obligation to diligently and properly
implement to completion, at Tenant's expense, any and all environmental
investigation, removal, remediation, monitoring, reporting, closure activities,
or other environmental response action (collectively, "Response Actions").
Tenant shall promptly provide Landlord with copies of any claims, notices, work
plans, data and reports prepared, received or submitted in connection with any
Response Actions.
It is agreed that the Tenant's responsibilities related to Hazardous Materials
will survive expiration or termination of this Lease and that Landlord may
obtain specific performance of Tenant's responsibilities under this Paragraph
49.
50. CONSENT. Whenever the consent of one party to the other is required
hereunder, such consent shall not be unreasonably withheld.
51. AUTHORITY TO EXECUTE. The parties executing this Lease Agreement hereby
warrant and represent that they are properly authorized to execute this Lease
Agreement and bind the parties on behalf of whom they execute this Lease
Agreement and to all of the terms, covenants and conditions of this Lease
Agreement as they relate to the respective parties hereto.
52. HETCH-HETCHY PROPERTY. Notwithstanding anything to the contrary in the
Lease and except as noted herein, Tenant has a non-exclusive right to use the
Hetch-Hetchy Property (which property is owned by the City and County of San
Francisco) as reflected in Blue on EXHIBIT A attached hereto for non-exclusive
parking only. Tenant's right to use the area outlined in Blue will continue
until this right to use said property is revoked or terminated by the City and
County of San Francisco, at which time said property outlined in Blue belonging
to the City and County of San Francisco will no longer be available for Tenant's
use, and this lease will continue in full force and effect excluding Tenant's
right to use the property outlined in Blue on EXHIBIT A attached hereto or in
the event Landlord enters into a lease of said Hetch-Hetchy Property with the
City and/or County of San Francisco ("Hetch-Hetchy Lease"), Tenant will be
29
obligated to pay on the first day of each month, directly to Landlord as
Additional Rent, its pro rata share of the total amount due under the
Hetch-Hetchy Lease.
53. TENANT'S OPTION TO TERMINATE LEASE. Provided Tenant is not in default in
any of the terms, covenants and conditions of this Lease and any amendments
thereto, Landlord hereby grants to Tenant an Option to Terminate this Lease
Agreement at the end of the twenty forth (24th) month of the Lease term, subject
to the following terms and conditions:
A. Tenant shall give Landlord ninety (90) days prior written notice of
Tenant's exercise of said Option to Terminate this Lease, which written notice
must be received by Landlord not later than March 9, 2002. In the event Tenant
fails to timely exercise Tenant's Option to Terminate as set forth herein in
writing, Tenant shall have no further Option to Terminate this Lease Agreement,
and this Lease Agreement shall continue in full force and effect for the full
remaining term hereof, absent this Paragraph 53.
B. In the event Tenant timely exercises Tenant's Option to Terminate as
set forth herein, this Lease shall terminate and be of no further force and
effect as of the expiration date of the twenty forth (24th) month of the Lease
term (i.e., June 6, 2002) with Tenant being responsible for the full performance
of all terms, covenants, and conditions of said Lease Agreement through the
effective date of termination as set forth above, subject to the payment of the
termination fee as set forth in Paragraph 53.C. below.
C. As consideration to be paid Landlord for the privilege of the early
termination of this Lease, Tenant shall pay to Landlord a termination fee of
$1,200,000.00. Said fee shall be due and paid by Tenant to Landlord at the time
Tenant gives Landlord its written notice of its election of early termination.
D. In the event Tenant timely exercises Tenant's Option to Terminate as
set forth herein, Tenant agrees to surrender the Leased Premises to Landlord,
free and clear of Tenant's occupancy or the occupancy of any subtenants, as of
the early termination date, and shall comply with all clean-up requirements as
outlined in Paragraphs 5 ("Acceptance and Surrender of Premises"), 6
("Alterations and Additions") and 49 ("Hazardous Materials") of this Lease.
E. The Option rights of Tenant under this Paragraph 53 are granted for
Tenant's personal benefit and may not be assigned or transferred by Tenant,
either voluntarily or by operation of law, in any manner whatsoever. In the
event that Landlord consents to a sublease or assignment under Paragraph 16,
except a Permitted Sublease as provided for in Paragraph 46.C., the Option
granted herein shall be void and of no force and effect, whether or not Tenant
shall have purported to exercise such Option prior to such assignment or
sublease.
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EXHIBIT A
[SITE PLAN]
EXHIBIT B
[DIAGRAM]
