EXHIBIT 10.54
BAYSHORE CORPORATE CENTER
OFFICE LEASE
BETWEEN
________________________________
CORNERSTONE PROPERTIES I, LLC
AND
AVANTGO, INC.
________________________________
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as ****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commision.
1.
CORNERSTONE PROPERTIES I, LLC
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LEASE "SUMMARY"
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Lessor: CORNERSTONE PROPERTIES I, LLC A California
Limited Liability Company Bayshore Corporate
Center 0000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
[******]
Lessee Name: AVANTGO, INC.
Premises Building/Suite: 0000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxx, Xx 00000
Tenant Phone Number: 650/000-0000
Tenant Fax Number: 650/000-0000
Tenant Contact: Xxxxx Xxx
Alternate Tenant Contact: none
Billing Name and Address: 0000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxx, XX 00000
Personal Guarantor(s): none
Use: Software research and development
Rentable Area of Premises: 3505 RSF
Original Lease
Commencement Date: August 1, 1999
Lease Commencement Date: August 1, 1999
Lease Expiration: March 31, 2002
Lease Term: Two Years and 7 months
Rent Schedule:
August 1, 1999 - July 31, 2000 $2.85/square foot $ 9,989.00/month
August 1, 2000 - July 3l, 2001 $2.95/square foot $10,340.00/month
August l, 2001 - March 31, 2002 $3.05/square foot $10,690.00/month
Security Deposit: $10,690.00
$10,690.00 FOR THE SECURITY DEPOSIT WILL BE DUE UPON EXECUTION OF
THIS LEASE.
Tenant Improvements:
Costs paid by Lessor: n/a
Costs paid by Lessee: Any Requested Tenant Improvements
Tenant's Common Area
Expense Share and Base Year: 1.09%(332,000) 1999 BASE YEAR
Tenant's Minimum General
Liability Insurance: $1,000,000.00 per occurrence
$ 500,000.00 per person, per occurrence
$ 100,000.00 property damage
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Additional Bldg/Suite
Tenant Occupies: none
Each reference in the Lease to the "Summary" shall mean the respective
information set forth above and shall be deemed to incorporate all of the terms
provided under the particular Lease paragraph pertaining to such information. To
the extent there is any conflict between the provisions hereof and any more
specific provision of this Lease, such more specific provision shall control.
OFFICE BUILDING LEASE
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TABLE OF CONTENTS
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Article Page
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1. PREMISES 3
2. TERM 3
3. RENT; ADDITIONAL CHARGES 3
4. ADDITIONAL CHARGES FOR EXPENSES AND REAL ESTATE TAXES 4
5. USE 4
6. CONSTRUCTION OF PREMISES; BUILDING CHANGES 5
7. ALTERATIONS 5
8. REPAIRS AND MAINTENANCE 6
9. LIENS 6
10. COMPLIANCE WITH LAWS AND INSURANCE REQUIREMENTS 6
11. PROTECTION OF LENDERS 7
12. DAMAGE AND DESTRUCTION 7
13. EMINENT DOMAIN 9
14. ASSIGNMENT AND SUBLETTING 9
15. UTILITIES AND SERVICES 10
16. DEFAULT 10
17. LIABILITY OF LANDLORD; INDEMNITY BY TENANT 12
18. INSURANCE 13
19. ACCESS TO PREMISES 14
20. NOTICES 14
21. TENANT'S CERTIFICATE 15
22. TAX ON TENANT'S PERSONAL PROPERTY 15
23. SECURITY DEPOSIT 15
24. LANDLORD'S OPTION TO RELOCATE TENANT 15
25. XXXXXXXXX 00
00. SURRENDER OF LEASE PREMISES 16
27. MISCELLANEOUS 17
28. SIGNATURE PAGE 19
Exhibits:
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A FLOOR PLAN(S) 20
B DEFINITIONS OF REAL ESTATE TAXES, BUILDING EXPENSES 21
AND COMMON AREA EXPENSES
C RULES AND REGULATIONS 23
D PHONE AGREEMENT 26
E COMMENCEMENT MEMORANDUM 27
2.
OFFICE LEASE
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THIS LEASE is entered into as of August 2, 1999, by and between CORNERSTONE
PROPERTIES I, LLC, a California Limited Liability Company ("Landlord"), and
AVANTGO, INC.("Tenant").
Landlord and Tenant hereby agree as follows:
1. PREMISES
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Subject to the contents of this Lease, Landlord hereby leases to
Tenant and Tenant hereby leases from Landlord the premises described in the
Basic Lease Information Summary (the "Summary") (the "Premises") in the building
described in the Summary (the "Building"), as shown on the floor plan (s)
attached as Exhibit A to this Lease. The Building is part of an office complex
consisting of 1650-1730 S. Amphlett Blvd. (the "Complex"). All measurements of
area contained in this Lease are conclusively agreed to be correct and binding
upon the parties, even if a subsequent measurement of any one of these areas
determines that it is more or less than the amount of area reflected in the
Lease. Any such subsequent determination that the area is more or less than
shown in this Lease shall not result in a change in any of the computations of
rent, improvement allowances or other matters described in this Lease where area
is a factor.
2. TERM
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The term of this lease (the "Term") commences on the earlier of (a)
the Target Commencement Date; or (b) the date on which Tenant first occupies all
or any portion of the Premises. The dates on which the Term commences and
terminates pursuant to this Article 2 are herein called the "Commencement Date
and the "Expiration Date," respectively. If, for any reason, Landlord cannot
deliver possession of the Premises to Tenant on or prior to the Commencement
Date, this Lease shall not be void or voidable nor shall Landlord be liable to
Tenant for any loss or damage resulting therefrom. In such case, Tenant shall
not pay any rent and the Commencement Date shall not occur until such date as
Landlord can deliver the Premises, provided, however that if Landlord's failure
to deliver the Premises is attributable to any action or inaction by Tenant,
then the Commencement Date shall not be advanced to the date on which possession
of the Premises is delivered to Tenant and Landlord shall be entitled to full
performance by Tenant (including payment of rent) from the date the Premises
would have been ready for delivery to Tenant but for Tenant's action or
inaction.
3. RENT, ADDITIONAL CHARGES
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3.1 Base Rent. Tenant will pay to Landlord during the Term the monthly
Base Rent set forth in the Summary (the "Base Rent") in consecutive monthly
installments on or before the first day of each calendar month, in advance, at
the address specified for Landlord in the Summary, or such other place as
Landlord may designate in writing, without any prior demand and without any
deductions or setoff. Upon execution of this Lease, Tenant shall pay to Landlord
the first month's Base Rent. If the Commencement Date occurs on a day other than
the first day of a calendar month, or the Expiration Date occurs on a day other
than the last day of a calendar month, then the rental for such fractional month
will be prorated based on a thirty (30) day month.
3.2 Additional Charges. Tenant shall pay to Landlord all charges and
other amounts required to be paid by Tenant under this Lease (herein called
"Additional Charges") as additional rent at the place where the Base Rent is
payable. Landlord will have the same remedies for a default in the payment of
any Additional Charges as for a default in the payment of Base Rent. (Base Rent
and Additional Charges are sometimes collectively referred to herein as "rent.")
3.3 Late Charge. If Tenant fails to pay any Base Rent or additional
Charges within five (5) days after the date the same is due and payable, such
unpaid amounts will be subject to a late payment
3.
charge equal to ten percent (10%) of the unpaid mounts in each instance. The
late payment charge has been agreed upon by Landlord and Tenant, after
negotiation, as a reasonable estimate of the additional administrative costs and
detriment that will be incurred by Landlord as a result of any such failure by
Tenant, the actual costs thereof being extremely difficult if not impossible to
determine. The late payment charge constitutes liquidated damages to compensate
Landlord for its damages resulting from such failure to pay and shall be paid to
Landlord together with such unpaid amounts.
4. ADDITIONAL CHARGES FOR EXPENSES AND REAL ESTATE TAXES
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4.1 Definition of Expenses. For purposes of this Article 4, the
following terms shall have the meanings set forth in this Section 4.1. "Tenant's
Building Percentage Share", Tenant's Common Area Expense percentage Share" and
"Base Year" shall be as set forth in the Summary. Landlord may adjust these
percentages as a result of any change in the rentable area of the Premises or
the total rentable area of the Building or the other building in the Complex.
"Computation Year" means each calendar year during the Term, including any
partial calendar year in which the Term may commence or terminate. "Real Estate
Taxes", "Building Expenses", "Insurance Expenses" and "Common Area Expenses" are
defined in Exhibit B to this Lease.
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4.2 Payment of Charges. From the first day of the thirteenth month of
the Term through the Expiration Date, Tenant shall pay to Landlord as Additional
Charges (i) Tenant's Building Share of the total dollar increase, if any, in
Building Expenses attributable to each Computation Year over Building Expenses
for the Base Year, (ii) Tenant's Building Share of the total dollar increase, if
any, in Real Estate Taxes attributable to each Computation Year over Real Estate
Taxes for the Base Year, (iii) Tenant's Building Share of the total dollar
increase, if any, in Insurance Expenses attributable to each Computation Year
over Insurance Expenses for the Base Year and (iv) Tenant's Common Area Expense
Share of the total dollar increase, if any, in Common Area Expenses attributable
to each Computation Year over Common Area Expenses for the Base Year. During the
last month of each Computation Year or as soon thereafter as practicable,
Landlord shall give to Tenant notice of Landlord's estimate of the amounts
payable by Tenant for the following Computation Year. On or before the first day
of each month during the following Computation Year, Tenant shall pay to
Landlord one-twelfth (l/12th) of the estimated amounts, provided that until
Landlord gives such notice, Tenant shall continue to pay on the basis of the
prior year's estimate until the first day of the calendar month after Landlord
gives such notice. If at any time or times Landlord determines that the amounts
payable by Tenant for the current Computation Year will vary from its estimate
given to Tenant, Landlord, by notice to Tenant, may revise its estimate for the
Computation Year, and subsequent payments for the Computation year shall be
based upon the revised estimate. Following the end of each Computation Year,
Landlord shall deliver to Tenant a statement of amounts payable for the
Computation Year. If the statement shows an amount owing by Tenant that is less
than the payments for such Computation Year previously made by Tenant, and if no
Event of Default is outstanding, Landlord shall credit the amount to the next
payments of rent due. If the statement shows an amount owing by Tenant that is
more than the estimated payments for the Computation Year previously made by
Tenant, Tenant shall pay the deficiency to Landlord within thirty (30) days
after delivery of such statement. The respective obligations of Landlord and
Tenant under this Section 4.2 shall survive the Expiration Date. If the
Commencement Date is a day other than the first day of a Computation Year or the
Expiration Date is a day other than the last day of a Computation Year, the
adjustment in rent pursuant to this Section 4.2 for such Computation Year shall
be prorated based on a 365-day year.
5. USE
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5.1 Limitations. Tenant shall use and continuously occupy the Premises
solely for the use or uses specified in the Summary and for no other use or
purpose. Tenant shall take no action, nor permit any action to be taken, in or
about the Premises that will in any way increase the existing rate of or affect
any fire or other insurance upon the Building or any of its contents, or cause
cancellation of any insurance policy covering all or any part of the Building or
any of its contents, or which will in any way injure or interfere with the
rights of other tenants or occupants of the Building, nor shall Tenant use or
allow the Premises to be used for unlawful or objectionable purpose, nor cause,
maintain or permit any nuisance in, on or about the Premises, nor commit nor
suffer to be committed any waste in, on or upon the Premises. Tenant shall not
use or operate any equipment, machinery or apparatus within the Premises which
will injure, vibrate or shake the Premises or the Building, overload existing
electrical systems or other utilities or equipment servicing the Premises or
Building, or impair the efficient operation of the sprinkler system (if
4.
any) or the heating, ventilating and air conditioning equipment within or
servicing the Premises or the Building. Tenant shall not cause or permit any
Hazardous Materials to be brought upon, stored, used, generated or released or
disposed of on, under, from or about the Premises, Building or Complex
(including, without limitation, the soil and groundwater thereunder) without the
prior written consent of Landlord. As used herein, the term "Hazardous
Material," means any hazardous or toxic substance, material or waste which is or
becomes regulated by any local governmental authority, the State of California
or the United States Government. The term "Hazardous Material," includes,
without limitation, petroleum products, asbestos, PCB's, and any material or
substance which is (i) defined as hazardous or extremely hazardous pursuant to
Section 66160 of Title 26 of the California Code of Regulations, Division 22,
(ii) defined as a "hazardous waste" pursuant to Section 1004 of the Federal
Resource Conservation and Recovery Act, 42 U.S.C., Section 6901 et seq. (42
U.S.C. Section 6903), or (iii) defined as "hazardous substance" pursuant to
Section 101 of the Comprehensive Enviromental Response, Compensation and
Liability Act, 42 U.A.C., Section 9601 et seq. (42 U.S.C. 6901).
5.2 Common Area. Tenant shall have a non-exclusive right to use the
Common Area, provided, however, that Tenant's use of the Common Area shall be
subject to such rules and regulations as Landlord shall make from time to time.
As used in this Lease, the term "Common Area" shall mean the area and
improvements designated by Landlord from time to time as "Common Area" for the
use and enjoyment of tenants of the Complex. Landlord reserves the right, from
time to time, to: (i) utilize portions of the Common Area for entertainment,
displays, product shows, the leasing of kiosks or such other uses as, in
Landlord's judgment, tend to attract the public, change the shape, size,
location and extent of improvements on the Common Area; (ii) eliminate or add
any improvements; and (iii) temporarily close any portion of the Common Areas
for repairs, remodeling and/or alteration, to prevent a public dedication or the
accrual of prescriptive rights, or for any other reason deemed sufficient by
Landlord.
6. CONSTRUCTION OF PREMISES; BUILDING CHANGES
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Landlord shall construct the Premises and perform the work and make
the installations in the Premises substantially as set forth in Exhibit "A" to
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this Lease (the "floor plan"). Landlord reserves the right, at any time and from
time to time, to make alterations, additions, repairs or improvements to or in
or to decrease the size or area of all or any part of the Building, the fixtures
and equipment therein and the areas outside the' Building, and the Common Area,
and to change the arrangement and/or location of entrances or passageways,
doors, corridors, elevators, stairs, toilets and other public parts of the
Building, provided that any such alterations or additions shall not materially
diminish the quality or quantity of services being provided to the Premises or
adversely affect the functional utilization of the Premises.
7. ALTERATIONS
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7.1 Tenant's Trade Fixtures. During the Term of this Lease, Tenant may
install Tenant's trade fixtures which may be removed without material injury to
the Premises on the Premises without the prior consent of Landlord. All Tenant's
trade fixtures shall remain Tenant's property. Tenant's trade fixtures shall not
include the initial Tenant Improvements paid for with the funds of Landlord nor
any improvements thereafter made to the Premises by Landlord at any time with
Landlord's Funds.
7.2 Consent Requirement for Alterations. Tenant shall make no
alterations, additions or improvements (collectively, "Alterations") to the
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Premises or any part thereof without obtaining the prior written consent of
Landlord. Such consent may be granted or withheld in Landlord's sole and
absolute discretion. Landlord may impose as a condition to such consent such
requirements as Landlord may deem necessary, in its sole and absolute discretion
including, without limitation: (i) that Landlord be furnished with working
drawings before work commences; (ii) that performance and labor and material
payment bonds be furnished; (iii) that Landlord approve the contractor by whom
the work is to be performed; (iv) that adequate course of construction insurance
be in place and the Landlord is named as an additional insured under the
contractor's liability and property damage policies; and (v) that Landlord's
instructions relating to the manner in which the work is to be done and the
times during which it is to be accomplished be complied with. All such
alterations, additions or improvements must be done in compliance with all
applicable laws, in a good and workmanlike manner and diligently prosecuted to
completion. Tenant shall deliver to Landlord upon commencement of such work, a
copy of the building permit with respect thereto. All such work shall be
performed so as not to obstruct the access to the Premises of any other tenant
in the
5.
Building or Complex. Should Tenant make any alterations without Landlord's prior
written consent, Landlord shall have the right, in addition to and without
limitation of any right or remedy Landlord may have under this Lease, at law or
in equity, to require the Tenant to remove all or some of the alterations at
Tenant's sole cost and restore the Premises to the same condition as existed
prior to undertaking the alterations. Tenant shall notify Landlord in writing at
least ten (10) days prior to the commencement of any such work in or about the
Premises and Landlord shall have the right at any time and from time to time to
post and maintain notices of non-responsibility in or about the Premises.
7.3 Possession. All Tenant's Alterations shall remain the property of
Tenant during the Term but shall not be altered or removed from the Premises. At
the expiration or sooner termination of the Term, all Tenant's Alterations shall
be surrendered to Landlord and shall then become Landlord's property, and
Landlord shall have no obligation to reimburse Tenant for all or any portion of
the value or cost thereof; provided, however, that if Landlord requires Tenant
to remove any Tenant's Alterations, Tenant shall so remove such Tenant's
Alterations, and Tenant shall restore the Premises to the condition which
existed prior to the installation of such Tenant's Alterations, prior to the
expiration or sooner termination of the Term.
8. REPAIRS AND MAINTENANCE
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8.1 Tenant's Obligations. By occupying the Premises, Tenant accepts
the Premises as being in the condition in which Landlord is obligated to deliver
the Premises under the terms of this Lease. Tenant shall, at all times during
the Term, and at Tenant's sole expense, keep and maintain all of the Premises in
good order, condition and repair, including replacement where necessary. Tenant
shall at all times during the Term, and at Tenant's sole expense, keep and
maintain the Premises and every part thereof in good order, condition and
repair. Tenant's obligation shall include, without limitations, the following:
all plumbing and sewage facilities within the Premises (including, without
limitations, sinks, facuets, toilets and drains) and all ducts, pipes, vents,
and other parts of the HVAC or plumbing systems within the Premsises; all
fixtures, interior walls, floors, carpets and ceilings within the Premises; all
electrical facilities and equipment within the Premises (including, without
limitations, all lighting fixtures, lamps, bulbs, tubes, fans, vents, exhaust
equipment and systems, wires and conduits); and all gas facilities and
equipment within the Premises (including, without limitations, all conduits and
pipes. Tenant shall at the end of the Term surrender the Premises to Landlord in
the same condition as when received, except for ordinary wear and tear and
Alterations. Landlord has no obligation and has made no promise to alter,
remodel, improve, repair, decorate or paint all or any part of the Premises, the
Building or the Common Area except as specifically set forth in the Lease.
8.2 Landlord's Obligations. Landlord shall repair and maintain the
structural portions of the Building, the Building Systems and the Common Area.
If the necessity for such maintenance and repairs is in any way caused by the
act, neglect, fault, or omission of Tenant, its agents, servants, employees or
invitees, Tenant shall pay promptly to Landlord the reasonable cost of such
maintenance and repairs. Landlord shall not be liable for any failure to make
any such repairs or to perform any such maintenance unless Landlord receives
notice of the need for such repairs or maintenance from Tenant and fails to make
such repairs or perform such maintenance for a reasonable period of time
following such notice by Tenant. Rent shall not xxxxx nor shall Landlord be
liable as a result of any injury to or interference with Tenant's business
arising from the making of any repairs, or the performance of any maintenance,
in or to any portion of the Building, the Premises or the Common Area, excepting
the negligence or willful misconduct of Landlord, Agents, servants, employees,
licensees or contractors.
"As used herein, the term "Building Systems" shall mean all systems and
equipment (including, without limitations, plumbing, HVAC, electrical,
fire/life safety, elevator, and security systems) that serve ther entire
Building or portions of the Building other than simply the respective premises
of the tenants of the Building."
8.3 Tenant's Failure to Repair. If Tenant refuses or neglects to
repair and maintain the Premises as required hereunder to the reasonable
satisfaction of Landlord, Landlord at any time following ten (10) days from the
date on which Landlord shall make a written demand on Tenant to effect such
repair and/or maintanance, may enter upon
6.
9. LIENS
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Tenant shall keep the Premises and the Building free from any liens
arising out of any work performed, material furnished or obligations incurred by
or for Tenant. In the event that Tenant shall not, within ten (10) days
following the imposition of any such lien, cause the lien to be released of
record by payment or posting of a proper bond, Landlord shall have in addition
to all other remedies provided herein and by law the right but not the
obligation to cause same to be released by such means as it shall deem proper,
including payment of the claim giving rise to such lien. All such sums paid by
Landlord and all expenses incurred by it in connection therewith (including
without limitation reasonable counsel fees) shall be payable to Landlord by
Tenant upon demand. Landlord shall have the right at all times to post and keep
posted on the Premises any notices permitted or required by law or that Landlord
shall deem proper for the protection of Landlord, the Premises, and the
Building, from mechanics' and material men's liens. Tenant shall give to
Landlord at least five (5) business days' prior written notice of commencement
of any repair or construction on the Premises.
10. COMPLIANCE WITH LAWS AND INSURANCE REQUIREMENTS
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Tenant, at Tenant's cost and expense, and irrespective of the cost of
compliance, shall comply with all laws, orders and regulations of federal,
state, county and municipal authorities relating to the Premises or the use or
occupancy thereof, and with all rules, orders, regulations or requirements of
the American Insurance Association (formerly the National Board of Fire
Underwriters) and with any similar body that shall hereafter perform the
function of such Association, except that Tenant shall not be required to make
any structural Alterations in order to comply unless such Alterations shall be
necessitated by Tenant's Alterations or Trade Fixtures, by Tenant's particular
use of the Premises, by Tenant's application for any permit or governmental
approval, and/or by the acts, omissions or negligence of Tenant or its servants,
employees, contractors, agents, visitors or licensees.
11. PROTECTION OF LENDERS
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11.1 Subordination. Without the necessity of any additional document,
this Lease shall be the subject and subordinate at all times to: (a) all
reciprocal easement agreements and all ground leases or underlying leases which
may now exist or hereafter be executed affecting the Building, the land on which
the Building is located or the Common Area, or any of the foregoing, and (b) the
lien of any mortgage or deed of trust which may now exist or hereafter be
executed in any amount for which the Building, land on which the Building is
located, ground leases or underlying leases, or Landlord's interest or estate in
any of said items, is specified as security. Notwithstanding the foregoing,
Landlord shall have the right to subordinate or cause to be subordinated to this
Lease any of the items referred to in clause (a) or (b) above. Tenant shall
execute and deliver, upon demand by Landlord and in the form requested by
Landlord, any additional documents evidencing the priority or subordination of
this Lease with respect to any such ground leases, underlying leases, reciprocal
easement agreements or similar documents or instruments, or with respect to the
lien of any such mortgage or deed of trust and containing such matters as
lenders customarily and reasonably require in connection with such agreements,
including, provisions that the lender will not be liable for: (i) the return of
any security deposit unless the lender receives it from Landlord and (ii) any
defaults on the part of Landlord occurring prior to the time lender takes
possession. Tenant's failure to execute any such document within ten (10) days
after written demand therefor shall constitute an event of Tenant's default by
Tenant under this Lease.
11.2 Attornment. If Landlord's interest in the Property is acquired by
any ground Landlord, beneficiary under a deed of trust, mortgagee, or purchaser
at a foreclosure sale, Tenant shall attorn to the transferee of or successor to
Landlord's interest in the Property and recognize such transferee or successor
as Landlord under this Lease. Tenant waives the protection of any statute or
rule of law which gives or purports to give Tenant any right to terminate this
Lease or surrender possession of the Property upon the transfer of Landlord's
interests.
12. DAMAGE AND DESTRUCTION
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12.1 Definition of Terms. For the purposes of this Lease, the term:
(a) "Insured Casualty" means damage to or destruction of the Premises from a
cause actually insured against, for which the
7.
insurance proceeds paid or made available to Landlord are sufficient to rebuild
or restore the Premises under then-existing building codes to the condition
existing immediately prior to the damage or destruction; and (b) "Uninsured
Casualty" means damage to or destruction of the Premises from a cause not
actually insured against, or from a cause actually insured against but for which
the insurance proceeds paid or made available to Landlord are for any reason
insufficient to rebuild or restore the Premises under then-existing building
codes to the condition existing immediately prior to the damage or destruction,
or from a cause actually insured against but for which the insurance proceeds
are not paid or made available to Landlord within twelve (12) months of the
event of damage or destruction.
12.2 Insured Casualty.
(a) In the event of an Insured Casualty where the extent of damage or
destruction is less than twenty-five percent (25%) of the then full replacement
cost of the Premises or the Building, Landlord shall rebuild or restore the
Premises or the Building substantially to the condition existing immediately
prior to the damage or destruction, provided that there exist no governmental
codes or regulations that would interfere with Landlord's ability to so rebuild
or restore.
(b) In the event of an Insured Casualty where the extent of damage or
destruction is equal to or greater than twenty-five percent (25%) of the then
full replacement cost of the Premises or the Building, Landlord may rebuild or
restore the Premises or the Building substantially to the condition existing
immediately prior to the damage or destruction, or terminate this Lease.
Landlord shall notify Tenant in writing within thirty (30) days from the event
of damage or destruction of Landlord's election to either rebuild or restore the
Premises or terminate this Lease.
12.3 Uninsured Casualty. In the event of an Uninsured Casualty, Landlord
may (i) rebuild or restore the Premises as soon as reasonably possible at
Landlord's expense (unless the damage or destruction was caused by a negligent
or willful act of Tenant, in which event Tenant shall pay all costs of
rebuilding or restoring), in which event this Lease shall continue in full force
and effect or (ii) terminate this Lease, in which event Landlord shall give
written notice to Tenant within thirty (30) days after the event of damage or
destruction of Landlord's election to terminate this Lease as of the date of the
event of damage or destruction, and if the damage or destruction was caused by a
negligent or willful act of Tenant, Tenant shall be liable therefor to Landlord.
Notwithstanding the foregoing, Landlord shall have no right to terminate this
Lease with respect to an Uninsured Casualty if the cost of rebuilding or
restoring the damage caused thereby is equal to or less than Two Hundred Fifty
Thousand Dollars ($250,000).
12.4 Tenant's Election. Notwithstanding anything to the contrary contained
in this Article 12, Tenant may elect to terminate this Lease in the event the
Premises are damaged or destroyed and, in the reasonable opinion of Landlord's
architect or construction consultants, the restoration of the Premises cannot be
substantially completed within one hundred eighty (180) days after the event of
damage or destruction. Tenant's election shall be made by written notice to
Landlord within ten (10) days after Tenant receives from Landlord the estimate
of the time needed to complete repair or restoration of the Premises. If Tenant
does not deliver said notice within said ten (10) day period, Tenant may not
later terminate this Lease even if substantial completion of the rebuilding or
restoration occurs subsequent to said one hundred eighty (180) day period,
provided that Landlord is proceeding with diligence to rebuild or restore the
Premises. If Tenant delivers said notice within said ten (10) day period, this
Lease shall terminate as of the date of the event of damage or destruction.
12.5 Continuance of Lease. If Landlord is required or elects to rebuild or
restore the Premises pursuant to this Article 12, this Lease shall remain in
effect and Tenant shall have no claim against Landlord for compensation for
inconvenience or loss business during any period of repair or restoration.
12.6 Damage or Destruction Near End of Lease Term. Notwithstanding anything
to the contrary contained in this Article 12, in the event the Premises are
damaged or destroyed in whole in part (regardless of the extent of damage) from
any cause during the last twelve (12) months of the Lease Term, Landlord may, at
Landlord's option, terminate this Lease as of the date of the event of damage or
destruction by giving written notice to Tenant of Landlord's election to do so
within thirty (30) days after the event of such damage or destruction. For
purposes of this Section 12.6, if Tenant has been granted an option to extend or
renew the Lease Term pursuant to another provision of this Lease, then the
damage or destruction shall be deemed to have occurred during the last twelve
(12) months of the Lease Term if
8.
Tenant fails to exercise its option to extend or renew within twenty (20) days
of the event of damage or destruction.
12.7 Termination of Lease. If the Lease is terminated pursuant to
this Article 12, the current Rentals shall be proportionately reduced during the
period following the event of damage or destruction until the date on which
Tenant surrenders the Premises, based upon the extent to which the damage or
destruction interferes with Tenant's business conducted in the Premises, as
reasonably determined by Landlord, to the extent such loss is covered as an
insured peril by the insurance carried by Landlord, and to the extent the
resulting loss of income is covered by rental income or other insurance carried
by Landlord.
12.8 Abatement of Rentals. If the Premises are to be rebuilt or
restored pursuant to this Article 12, the then current Rentals shall be
proportionately reduced during the period of repair or restoration, based upon
the extent to which the making of repairs interferes with Tenant's business
conducted in the Premises, as reasonably determined by Landlord. In the event
Tenant reasonably disputes Landlord's determination regarding Rentals in Section
12.7 above and/or in the preceding sentence, then Tenant shall, within thirty
(30) days following written notice to Tenant of such determination by Landlord,
have the right to send Landlord written notice objecting to such determination
and requesting that Landlord and Tenant determine by arbitration the extent to
which Rentals should be proportionately reduced during the period described in
Section 12.7 above or the period of repair or restoration, which arbitration
shall be carried out pursuant to the rules and procedures of the American
Arbitration Association. All costs and expenses of any such arbitration shall be
shared equally by Landlord and Tenant. The determination of any such arbitration
shall be binding upon Landlord and Tenant.
12.9 Liability for Personal Property. In no event shall Landlord have
any liability for, nor shall it be required to repair or restore, any injury or
damage to any improvements, alterations or additions to the Premises made by
Tenant, trade fixtures, equipment, merchandise, furniture, or any other property
installed by Tenant or at the expense of Tenant. If Landlord or Tenant do not
elect to terminate this Lease pursuant to this Article 12, Tenant shall be
obligated to promptly rebuild or restore the same to the condition existing
immediately prior to the damage or destruction.
12.10 Waiver of Civil Code Remedies. Landlord and Tenant acknowledge
that the rights and obligations of the parties upon damage or destruction of the
Premises are as set forth herein; therefore Tenant hereby expressly waives any
rights to terminate this Lease upon damage or destruction of the Premises,
except as specifically provided by this Lease, including without limitation any
rights pursuant to the provisions of Subdivision 2 of Section 1932 and
Subdivision 4 of Section 1933 of the California Civil Code, as amended from time
to time, and the provisions of any similar law hereinafter enacted, which
provisions relate to the termination of the hiring of a thing upon its
substantial damage or destruction.
13. EMINENT DOMAIN
--------------
If all or any part of the Premises shall be taken as a result of the
exercise of the power of eminent domain or any transfer in lieu thereof, this
Lease shall terminate as to the part so taken as of the date of taking, and, in
the case of a partial taking, either Landlord or Tenant shall have the right to
terminate this Lease as to the balance of the Premises by written notice to the
other within thirty (30) days after such date; provided, however, a condition to
Tenant's right to terminate shall be that Tenant's use of the balance of the
Premises is substantially handicapped, impeded or impaired by the taking. If any
material part of the building shall be taken, Landlord shall have the right to
terminate this Lease by written notice to Tenant within thirty (30) days of the
date of taking. In the event of any taking, Landlord shall be entitled to any
and all compensation, damages, income, rent, awards, or any interest therein
whatsoever which may be paid or made in connection therewith, and Tenant shall
have no claim against the Landlord for the value of any unexpired term of this
Lease or otherwise; provided, Landlord shall have no claim to any portion of the
award that is specifically allocable to Tenant's relocation expenses or the
interruption of or damage to Tenant's business. In the event of a partial taking
of the Premises which does not result in a termination of this Lease, the Base
Rent and Additional Charges thereafter to be paid shall be equitably reduced.
9.
14. ASSIGNMENT AND SUBLETTING
-------------------------
14.1 In General. Tenant shall not directly or indirectly, voluntarily
or by operation of law, sell, assign, encumber, pledge or otherwise transfer or
hypothecate its interest in or rights with respect to the Premises or Tenant's
leasehold estate hereunder (collectively, "Assignment"), or permit all or any
portion of the Premises to be occupied by anyone by other than Tenant or sublet
all or any portion of the Premises or transfer a portion of its interest in or
rights with respect to Tenant's leasehold estate hereunder (collectively,
"Sublease") without Landlord's prior consent in each instance.
14.2 Notice to Landlord. If Tenant desires at any time to enter in an
Assignment or a Sublease, Tenant shall first give notice to Landlord of its
desire to do so, which notice shall contain (a) the name and address of the
proposed assignee or subtenant, (b) the nature of the proposed assignee's or
subtenant's business to be carried on in the Premises, (c) the terms and
provisions of the proposed Assignment or Sublease. In addition thereto, Tenant
shall furnish to Landlord such financial information as Landlord may reasonably
request concerning the proposed assignee or subtenant.
14.3 Landlord's Option. At any time within fifteen (15) days after
Landlord's receipt of the notice specified in Section 14.2, Landlord may by
notice to Tenant elect to (a) terminate this Lease as to the portion (including
all) of the Premises that is specified in Tenant's notice, with a proportionate
abatement in the Base Rent, (b) consent to the Sublease or Assignment, or (c)
disapprove the Sublease or Assignment; provided, however, if the Landlord elects
not to exercise the option described in (a) above, Landlord shall not
unreasonably withhold its consent to the Assignment or Sublease. Tenant shall
pay as additional rent, Landlord's reasonable attorneys' fees incurred in
connection with the review of any proposed Assignment or Sublease. Tenant agrees
to pay Landlord the amount by which all sums payable to Tenant in connection
with such Assignment or Sublease exceed the total of(a) Base Rent payable by
Tenant to Landlord hereunder, (b) reasonable leasing commission incurred by
Tenant in connection therewith, and (c) the cost of any Alterations reasonably
incurred in connection therewith. If Landlord consents to the Sublease or
Assignment within such fifteen (15) day period, Tenant may thereafter within
sixty (60) days after Landlord's consent enter into such Assignment or Sublease
with such approved assignee or subtenant upon the terms and conditions set forth
in the notice furnished by Tenant to Landlord pursuant to Section 14.2. No
Assignment or Sublease shall be binding on Landlord until Tenant delivers an
executed copy of such Assignment or Sublease to Landlord.
14.4 No Release. No consent by Landlord to any Assignment or Sublease
by Tenant shall relieve Tenant of any obligation to be performed by Tenant under
this Lease, whether arising before or after the Assignment or Sublease. The
consent by Landlord to any Assignment or Sublease shall not relieve Tenant from
the obligation to obtain Landlord's express consent to any other Assignment or
Sublease. Any Assignment or Sublease that fails to comply with this Article 14
shall be void and, at the option of Landlord, shall constitute an Event of
Default by Tenant under this Lease. The acceptance of Base Rent or Additional
Charges by Landlord from a proposed assignee or subleasee shall not constitute
consent to such Assignment or Sublease by Landlord.
14.5 Affiliates. Occupancy of all or part of the Premises by a parent,
subsidiary or affiliated companies of Tenant or Tenant's parent or Tenant's
subsidiary shall not be deemed an assignment or subletting provided that such
parent, subsidiary or affiliated companies were not formed as a subterfuge to
avoid the obligation of this Article 14.
15. UTILITIES AND SERVICES
----------------------
15.1 Landlord's Obligations. Landlord agrees to furnish to the
Premises, subject to the rules and regulations of the Building, (a) at all
times, electricity for normal lighting and fractional horsepower office machines
in an amount not to exceed .025 KWH per square foot per normal business day,
nonattended freight and passenger elevator service, and water for lavatory and
drinking purposes, and (b) from 7:00 a.m. to 6:00 p.m. Monday through Friday,
except for generally recognized business holidays in San Mateo, California, heat
and air-conditioning required in Landlord's judgment for the comfortable use and
occupation of the Premises. Landlord may reduce elevator service on evenings,
weekends and holidays. Landlord shall provide sufficient janitorial service for
general office use, as reasonably
10.
determined by Landlord. Landlord shall not be liable for, and Tenant shall not
be entitled to, any reduction of Base Rent by reason of (x) the installation,
use of or interruption of use of any equipment in connection with the furnishing
of any of the foregoing services (y) the failure to furnish or delay in
furnishing any of the foregoing services when such failure is caused by
accident, breakage, repairs, strikes, lockouts or other labor disturbances or
labor disputes of any character, or by any other cause, similar or dissimilar,
beyond the reasonable control of Landlord or by the making of any repairs or
improvements to the Premises or to the Building or any portion of either, or (z)
the limitation, curtailment, rationing or restrictions on use of water,
electricity, gas or any other utility servicing the Premises or the Building by
any utility or governmental agency. If Tenant requests additional or after-hours
heating or air conditioning, Landlord shall provide such service provided that
Tenant pays Landlord's reasonable charge for such services. Tenant further
agrees to cooperate fully at all times with Landlord and to abide by all
regulations and requirements which Landlord may prescribe (including, without
limitation, maintaining all window coverings in the Premises closed whenever the
system is in operation) for the proper function and control of the air
conditioning system.
15.2 Restrictions. Tenant shall not use any apparatus or device in the
Premises using in excess of 120 volts, that will in any way increase the amount
of electricity usually furnished or supplied for the use of the Premises as
general office space; nor connect with electric current, except through existing
electrical outlets in the Premises, any apparatus or device, for the purpose of
using electric current. If the Tenant shall require water or electric current in
excess of the amount usually furnished or supplied for the use of the Premises
as general office space, Tenant shall first procure the prior consent of
Landlord to the use of such excess water or electric current, which consent
Landlord may refuse in its sole discretion. Landlord may condition its consent
upon Tenant's agreement to reimburse Landlord monthly for the excess cost
thereof, based upon an estimate agreed upon by Landlord and Tenant, or, if the
parties fail to agree, as established by an independent licensed engineer.
16. DEFAULT
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16.1 Events of Tenant's Default. Tenant shall be in default of its
obligations under this Lease if any of the following events occurs (an "Event of
Tenant's Default"):
(a) Tenant shall have failed to pay Base Rent or Additional
Charges when due, and such failure is not cured within three (3) days after
delivery of written notice from Landlord specifying such failure to pay; or
(b) Tenant shall have failed to perform any term, covenant, or
condition of this Lease except those requiring the payment of Base Rent or
Additional Charges, and Tenant shall have failed to cure such breach within ten
(10) days after written notice from Landlord specifying the nature of such
breach where such breach could reasonably be cured within said ten (10) day
period, or if such breach could not be reasonably cured within said ten (10) day
period, Tenant shall have failed to commence such cure within said ten (10) day
period and thereafter continue with due diligence to prosecute such cure to
completion within such time period as is reasonably needed but not to exceed
thirty (30) days from the date of Landlord's notice; or
(c) Tenant shall have sublet the Premises or assigned its
interest in the Lease in violation of the provisions contained in Section 14; or
(d) Tenant shall have abandoned the Premises or left the Premises
substantially vacant; or
(e) The occurrence of the following: (i) the making by Tenant of
any general arrangements or assignments for the benefit of creditors; (ii)
Tenant becomes a "debtor" as defined in 11 U.S.C. Section 101 or any successor
statute thereto (unless, in the case of a petition filed against Tenant, the
same is dismissed within 60 days); (iii) the appointment of a trustee or
receiver to take possession of substantially all of Tenant's assets located at
the Premises or of Tenant's interest in this Lease, where possession is not
restored to Tenant within thirty (30) days; or (iv) the attachment, execution or
other judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where such seizure is not
discharged within thirty (30) days; provided, however, in the event that any
11.
provision of this Section 16.1 (e) is contrary to any applicable Law, such
provision shall be of no force or effect; or
(f) Tenant shall have failed to deliver documents required of
Tenant pursuant to Section 11 or 21 within the time periods specified therein.
The notice periods provided for in this Section 16.1 are intended to satisfy any
and all notice requirements imposed on Landlord by law (including, without
limitation, California Code of Civil Procedure Section 1161) and are not in
addition to any such requirements.
16.2 Landlord's Remedies. If an Event of Tenant's Default occurs,
Landlord shall have the following remedies in addition to all other rights and
remedies provided by any Law or otherwise provided in this Lease, to which
Landlord may resort cumulatively or in the alternative:
(a) Landlord shall have the remedy described in Civil Code
Section 1951.4, which provides that, when a tenant has the right to sublet or
assign (subject only to reasonable limitations), the Landlord may continue the
lease in effect after the tenant's breach and abandonment and recover rent as
its become due. Accordingly, if Landlord does not elect to terminate this Lease
on account of an Event of Tenant's Default, Landlord may enforce all of
Landlords rights and remedies under this Lease, including the right to recover
all Rent due under this Lease as it becomes due.
(b) Landlord may terminate Tenant's right to possession of the
Premises at any time by giving written notice to that effect, and relet the
Premises or any part thereof. Tenant shall be liable immediately to Landlord
for all costs Landlord incurs in relating the Premises of any part thereof,
including, without limitation, broaker's commisions, expenses of cleaning and
redecorating the Premises required by the releting and like costs. Reletting may
be for a period shorter of longer than the remaining term of this Lease. No act
by Landlord other than giving written notice to Tenant shall terminate this
Lease. Acts of maintenance, efforts to reler the Premises or the appointment of
a receiver on Landlord's initiative to protect Landlord's interest under this
Lease shall not constitute a termination:
(1) 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 such rental loss that Tenant proves could be reasonably avoided,
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent (1%); and
(2) Any other amount necessary to compensate Landlord for all
detriment proximately caused by Tenant's failure to perform Tenant's obligations
under this Lease, or which in the ordinary course of things would be likely to
result therefrom, including the following: (i) expenses for cleaning, repairing
or restoring the Premises; (ii) expenses for altering, remodeling or otherwise
improving the Premises for the purpose of reletting, including installation of
leasehold improvements (whether such installation be funded by a reduction of
rent, direct payment or allowance to a new tenant, or otherwise); (iii) broker's
fees, advertising costs and other expenses of reletting the Premises; (iv) costs
of carrying the Premises, such as taxes, insurance premiums, utilities and
security precautions; (v) expenses in retaking possession of the Premises; and
(vi) attorneys' fees and court costs incurred by Landlord in retaking possession
of the Premises and in releasing the Premises or otherwise incurred as a result
of Tenant's default.
(c) Nothing in this Section 16.2 shall limit Landlord's right to
indemnification from Tenant as provided in Sections 17.3. Any notice given by
Landlord in order to satisfy the requirements of this Section 16.2 shall also
satisfy the notice requirements of California Code of Civil Procedure Section
1161 regarding unlawful detainer proceedings.
16.3 Waiver. One party's consent to or approval of any act by the
other party requiring the first party's consent or approval shall not be deemed
to waive or render unnecessary the first party's consent to or approval of any
subsequent similar act by the other party. The receipt by Landlord of any rent,
payment, interest or late charge with or without knowledge of the breach of any
other provision hereof shall not be deemed a waiver of any such breach unless
such waiver is in writing and signed by Landlord. No delay or omission in the
exercise of any right or remedy accruing to either party upon any breach by the
12.
other party under this Lease shall impair such right or remedy or be construed
as a waiver of any such breach theretofore or thereafter occurring. The waiver
by either party of any breach of any provision of this Lease shall not be deemed
to be a waiver of any subsequent breach of the same or of any other provisions
herein contained.
16.4 Limitation on Exercise of Rights. At any time that an Event of
Tenant's Default has occurred and remains uncured, (i) Landlord may deny or
withhold any consent or approval requested of it by Tenant which Landlord would
otherwise be obligated to give; and (ii) Tenant may not exercise any option to
extend, right to terminate this Lease, or other right granted to it by this
Lease which would otherwise be available to it.
16.5 Waiver by Tenant of Certain Remedies. Tenant waives the
provisions of Sections 1932(1), 1941 and 1942 of the California Civil Code and
any similar or successor law regarding Tenant's right to terminate this Lease or
to make repairs and deduct the expenses of such repairs from the rent due under
this Lease. Tenant hereby waives any right of redemption or relief from
forfeiture under the laws of the State of California, or under any other present
or future law, including the provisions of Sections 1174 and 1179 of the
California Code of Civil Procedure.
16.6 Remedies Cumulative. All rights, privileges and remedies of the
parties are cumulative and not alternative or exclusive to the extent permitted
by law except as otherwise provided herein.
16.7 Landlord's Default. Landlord shall ot be deemed to be in
default in the performance of any obligation required to be performed by it
hereunder unless and until it has failed to perform such obligation within
thirty (30) days after receipt of written notice by Tenant to Landlord
specifiying the nature of such that more than thirty (30) days are required for
its performance, then Landlord shall not be deemed to be in default if it shall
commence sucj [erfpr,amce within such thirty (30) day period and thereafter
diligently prosecute the same to completion.
17. LIABILITY OF LANDLORD; INDEMNITY BY TENANT
------------------------------------------
17.1 Limitation on Landlord's Liability. Landlord shall not be
liable to Tenant, nor shall Tenant be entitled to terminate this Lease or to any
abatement of Rent, for any injury to Tenant or any parties affiliated with
Tenant, damage to the property of Tenant or any parties affiliated with Tenant,
or loss to Tenant's business resulting from any cause, including without
limitation any: (i) failure, interruption or installation of any HVAC or other
utility system or service; (ii) failure to furnish or delay in furnishing any
utilities or services when such failure or delay is caused by fire or other
peril, the elements, labor disturbances of any character, or any other accidents
or other conditions beyond the reasonable control of Landlord; (iii) limitation,
curtailment, rationing or restriction on the use of water or electricity, gas or
any other form of energy or any services or utility serving the Complex; (iv)
vandalism or forcible entry by unauthorized persons or the criminal act of any
person; or (v) penetration of water into or onto any portion of the Building
through roof leaks or otherwise. Notwithstanding the foregoing but subject to
Sections 17.2 and 18.3, Landlord shall be liable for any such injury, damage or
loss which is proximately caused by Landlord's willful misconduct or gross
negligence of which Landlord has actual notice and a reasonable opportunity to
cure but which it fails to so cure.
17.2. Limitation on Tenant's Recourse. If Landlord is a corporation,
trust, partnership, joint venture, unincorporated association or other form of
business entity: (i) the obligations of Landlord shall not constitute personal
obligations of the officers, directors, trustees, partners, joint ventures,
members, owners, stockholders, or other principals or representatives of such
business entity; and (ii) Tenant shall not have recourse to the assets of such
officers, directors, trustees, partners, joint ventures, members, owners,
stockholders, principals or representatives except to the extent of their
interest in the Premises. Notwithstanding anything to the contrary in this
Lease, Tenant shall have recourse only to the interest of Landlord in the
Premises for the satisfaction of each and every remedy of Tenant in the event of
default by Landlord hereunder; such exculpation of personal liability is
absolute and without exception whatever
17.3 Indemnification of Landlord. Tenant shall hold harmless,
indemnify, protect and defend Landlord, and its employees, agents, contractors,
directors, partners, shareholders, officers, advisors, consultants and lenders,
with legal counsel satisfactory to Landlord from all liability, penalties,
losses,
13.
damages, costs, expenses (including attorneys' fees and court costs), causes of
action, claims and/or judgments arising by reason of any death, bodily injury,
personal injury or property damage resulting from (i) any cause or causes
whatsoever (other than the willful misconduct or gross negligence of Landlord of
which Landlord has had notice and a reasonable time to cure, but which Landlord
has failed to cure) occurring in or about or resulting from an occurrence in or
about the Premises, the Complex or associated parking areas and walkways during
the Lease Term; (ii) the negligence or willful misconduct of Tenant or any party
affiliated with Tenant, wherever the same may occur; or (iii) an Event of
Tenant's Default. The provisions of this Section 17.3 shall survive the
expiration or sooner termination of this Lease.
17.4 Notice of Claim or Suit. Tenant shall promptly notify Landlord of
any claim, action, proceeding or suit instituted or threatened against Tenant of
which Tenant received notice or of which Tenant acquires knowledge and which
names Landlord as a party thereto.
17.5 Waiver of Jury Trial. Landlord and Tenant each acknowledges that
it is aware of and has had the advice of counsel of its choice with respect to
its rights to trial by jury, and each party does hereby expressly and knowingly
waive and release all such rights to trial by jury in any action, proceeding or
counterclaim brought by either party hereto against the other (and/or against
its officers, directors, employees, agents, or subsidiary or affiliated
entities) on any matters whatsoever arising out of or in any way connected with
this Lease, Tenant's use of occupancy of the Premises, and/or any claim of
injury or damage.
17.6 Sale of Premises. In the event of any sale or transfer of the
Premises, the seller, transferor or assignor shall be and hereby is entirely
freed and relieved of all agreements, covenants and obligations of Landlord
thereafter to be performed and it shall be deemed and construed without further
agreement between the parties or their successors in interest or between the
parties and the purchaser, transferee or assignee on any such sale, transfer or
assignment that such purchaser, transferee or assignee has assumed and agreed to
carry out any and all agreements, covenants and obligations of Landlord
hereunder.
18. INSURANCE
---------
18.1 Tenant's Insurance. Tenant shall procure at its cost and expense
and keep in effect during the Term broad form comprehensive general liability
insurance, including, without limitation, contractual liability for Tenant's
indemnity obligation contained in Section 17 and specific coverage of risks
arising out of any activities of Tenant pursuant to Articles 7 and 8, with a
combined single limit of liability in an amount equal to the amount set forth in
the Summary. Such coverage shall be in a comprehensive general liability form
with at least the following endorsements to the extent such endorsements are
generally available: (i) deleting any employee exclusion on personal injury
coverage, (ii) including employees as additional insureds, (iii) providing for
blanket contractual coverage and broad form property damage coverage, (iv)
deleting any liquor liability exclusions, and (v) providing for coverage of
employees' automobile non ownership liability. Such insurance shall name
Landlord and any other party designated by Landlord as an additional insured,
shall be carried by companies licensed to do business in California and which
have a general policy holders' rating of not less than "A" and a financial
rating of not less than Class "X" as set forth in the most current issue of
Best's Insurance Guide", shall specifically include the liability assumed
hereunder by Tenant, shall provide that it is primary insurance and not in
excess over or contributory with any other valid, existing and applicable
insurance covering the same loss carried by Landlord or any other party, shall
provide for severability of interests, shall further provide that an act or
omission of one of the named insiders which would void or otherwise reduce
coverage shall not reduce or void the coverage as to any insured, shall afford
coverage for all claims based on acts, omissions, injury or damage which
occurred or arose (or the onset of which occurred or arose) in whole or part
during the policy period, and shall provide that Landlord will receive thirty
(30) days' written notice from the insurer prior to any cancellation or change
of coverage. Tenant shall deliver policies of such insurance or certificates
thereof to Landlord on or before the Commencement Date, and thereafter at least
thirty (30) days before the expiration dates of expiring policies; and in the
event Tenant shall fail to procure such insurance, or to deliver such policies
or certificates, Landlord may, at its option, procure same for the account of
Tenant, and the cost thereof shall be paid to Landlord within five (5) days
after delivery to Tenant of bills therefore. Tenant shall be responsible, at its
cost and expense, for separately insuring Tenant's property. The amounts of such
insurance shall be subject to adjustment from time to time as requested by
Landlord based upon Landlord's determination of the amount of such insurance
generally required for comparable tenants,
14.
premises and buildings in the general geographic location of the Building or
required by a lender with an interest in the Building.
18.2 Landlord's Insurance. Landlord shall maintain all risk property
insurance covering the estimated replacement cost of the Building. Landlord may,
but is not obligated to, maintain such other insurance and additional coverages
as it may deem necessary, including, but not limited to, commercial liability
insurance and rent loss insurance. The cost of such insurance to Landlord shall
be deemed an Insurance cost. The Building may be included in a blanket policy
(in which case the cost of such insurance allocable to the Building xxxx be
determined by Landlord based upon the insurer's cost calculations).
18.3 Waiver of Subrogation. Notwithstanding anything to the contrary
contained herein, to the extent of insurance proceeds received with respect to
the loss, Landlord and Tenant each hereby waives any right of recovery against
the other party and against any other party maintaining a policy of insurance
with respect to the Building or any portion thereof or the contents of any of
the same, for any loss or damage maintained by such other party with respect to
the Building, or the Premises or any portion thereof or the contents of the same
or any operation therein, whether or not such a loss is caused by the fault or
negligence of such other party.
19. ACCESS TO PREMISES
------------------
Landlord, its agents and representatives shall have the right to enter
the Premises at all reasonable times and, except in cases of emergency, after
giving Tenant reasonable notice for any purpose deemed necessary or desirable by
Landlord. Rent shall not xxxxx as a result thereof. Landlord shall use
reasonable efforts to minimize any interference with Tenant's use of the
Premises for its normal business purposes. Tenant hereby waives any claim for
damages for any injury or inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Premises or any other
loss occasioned thereby excepting the negligence or willful misconduct of
Landlord, agents, servants, employees, licensees or contractors. No entry by
Landlord under any circumstances shall 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. Tenant
acknowledges that in the event the Lease is not renewed, that the Landlord shall
have the right to show prospective tenants the Leased premises during the last
ninety (90) days of the Lease term without prior notice to Tenant.
20. NOTICES
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Notices or other communications under this Lease shall be effective
only if given in writing, sent by certified mail, by facsimile telecopy or by
courier service with a return receipt requested or delivered personally: (a) to
Tenant (i) at Tenant's address set forth in the Summary, if sent prior to
Tenant's taking possession of the Premises, or (ii) at the Premises, if sent
subsequent to Tenant's taking possession of the Premises, or (b) to Landlord at
Landlord's address set forth in the Summary, or (c) to either Landlord or Tenant
at such other address as either Landlord or Tenant may designate as its new
address for such purpose by notice given to the other in accordance with the
provisions of this Article. A notice shall be deemed to have been given (i) on
the third (3rd) business day after mailing of such notice was deposited in the
United States mail, postage prepaid, addressed to the party at the foregoing
address, (ii) when delivered if given by personal delivery; and in all other
cases when actually received at the address for notices set forth above.
21. TENANT'S CERTIFICATE
--------------------
Tenant, at any time and from time to time upon not less than ten (10)
day's prior written notice from Landlord, will execute, acknowledge and deliver
to Landlord a certificate stating that this Lease is in full force and effect,
specifying the dates to which rent has been paid thereunder and certifying to
such other matters as Landlord may reasonably request. Any such certificate may
be relied upon by Landlord and by any prospective purchaser or mortgagee
considering the purchase of or a loan on all or any part of the Building or any
interest therein.
15.
22. TAX ON TENANT'S PERSONAL PROPERTY
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At least ten (10) days prior to delinquency, Tenant shall pay all
taxes levied or assessed upon Tenant's Property and shall deliver satisfactory
evidence of such payment to Landlord, If, as determined by Landlord, the
assessed value of Landlord's property is increased by the inclusion therein of a
value placed upon Tenant's Property, Tenant shall promptly pay such increased
amount to Landlord.
23. SECURITY DEPOSIT
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Upon execution of this Lease, Tenant shall pay to Landlord, Tenant's
security deposit for the faithful performance of all terms, covenants and
conditions of this Lease in the amount specified in the Summary. Landlord may
apply any part of the security deposit to: (i) remedy any default by Tenant in
the payment of rent; (ii) repair damage to the Premises caused by Tenant; (iii)
clean the Premises upon termination of the Lease; and (iv) remedy any other
default of Tenant to the extent provided by Law. Tenant hereby waives the
restriction contained in California Civil Code Section 1950.7. Should Landlord
use any portion of the security deposit, Tenant shall forthwith replenish the
security deposit to the original amount. If Tenant shall fully and faithfully
perform every provision of this Lease, the remaining balance of the security
deposit, if any, shall be returned to Tenant (or, at Landlord's option, to the
last assignee of Tenant's interest hereunder) within thirty (30) days after the
Expiration Date. In the event of termination of Landlord's interest in this
Lease, Landlord may transfer the security deposit to Landlord's successor in
interest and, upon such transfer, Landlord shall be relieved of any and all
liability for or obligation with respect to the security deposit. Landlord shall
not be deemed a Trustee of the Security Deposit, may use the Security Deposit in
Landlord's business, one shall not be required to segregate it from its general
accounts.
24. LANDLORD'S OPTION TO RELOCATE TENANT
------------------------------------
24.1 Substituted Premises. Landlord may relocate Tenant to any other
space in the Complex at any time during the term of this Lease provided that:
(i) Landlord provides Tenant with prior written notice thereof ("Relocation
Notice") at least thirty (30) days in advance; and (ii) the square footage of
space to which Tenant is relocated ("Relocation Premises") equals or exceeds the
square footage of the Premises. In the event that Landlord delivers a Relocation
Notice to Tenant, Tenant shall deliver to Landlord within two (2) business days
of receipt thereof written notice ("Confirmation Notice") to Landlord confirming
Tenant's receipt of the Relocation Notice and acknowledging the relocation of
the Premises to the Relocation Premises. In the event that Landlord exercises
its right to move Tenant to a Relocation Premises, Landlord shall, at Landlord's
sole cost and expense, (a) construct tenant improvements in the Relocation
Premises which are substantially similar to the configuration of the tenant
improvements in the Premises, taking any differences in configuration between
the Premises and Relocation Premises into account; and (b) move Tenant's
inventory, furniture and personal property to the Relocation Premises.
Tenant shall provide Landlord with the current inventory or printing which is to
be replaced. All printing to be done by a printer chosen by Bayshore Corporate
Center. During the period of time commencing upon Tenant's receipt of the
Relocation Notice and ending upon Tenant's receipt of the Completion Notice (as
defined below), Tenant shall continue to conduct its business in the Premises to
the maximum extent possible. In no event shall Tenant be entitled to, and Tenant
hereby waives, any claim for abatement of Rent, loss of profits or any other
amount due to Landlord's relocation of Tenant to the Relocation Premises.
24.1a Overhead Costs. Landlord shall, at Landlords sole expense, pay
the expense of preparing the relocation premises to (a) a similar construction
of current premises, (b) moving of tenants inventory, furniture and personal
property, (c) relocation of telephone system, computer systems and wiring, and
(d) cost of replacement stationary and other associated printing upon Tenant
providing inventory of current stationary, and (e) any other reasonably
associated fees.
24.2 Amendment. In the event that Landlord relocates Tenant pursuant
to this Section 24, Tenant's occupancy of the Relocation Premises shall be upon
all of the same terms and conditions (including rent) that applied to the
Premises. If requested by landlord, Tenant shall promptly execute an amendment
to the Lease confirming the relocation of Tenant to the Relocation Premises and
showing the floor plan therefor.
16.
24.3 Landlord's Termination Right. In the event that Tenant shall
fail to either: (i) deliver to Landlord the Confirmation Notice when due; (ii)
surrender the Premises upon receipt of the Completion Notice; or (iii) commence
business at the Relocation Premises at the end of the Move-In Period, Landlord
may immediately terminate this Lease and all of the obligations and liabilities
of Landlord hereunder upon written notice thereof to Tenant and, thereafter,
Landlord shall have all rights and remedies under the Lease and applicable Law.
25. GUARANTOR
---------
The obligations of Tenant under this Lease shall be guaranteed in
their entirety by the Guarantor described on the "Summary Page" of the Basic
Lease Provisions. If Guarantor is or becomes bankrupt or insolvent, makes an
assignment for the benefit or creditors, or institutes or is the subject of any
proceeding under the Bankruptcy Act or other similar law for the protection of
creditors (or, if Guarantor is a partnership or consists of more than one person
or entity, if any partner of the partnership or such other person or entity is
or becomes bankrupt or insolvent, institutes any such proceeding, or makes an
assignment for the benefit or creditors), then Landlord shall have the option to
terminate this Lease upon thirty (30) days written notice unless Tenant, within
such thirty (30) day period, provides Landlord with either (i) a substitute or
additional guarantor satisfactory to Landlord and any Lender, or (ii) adequate
assurance of the performance of each and every obligation of Tenant hereunder,
satisfactory to Landlord and such Lender; provided, however, that no such
termination of this Lease shall become effective without the prior written
consent of such Lender.
26. SURRENDER OF LEASED PREMISES
----------------------------
26.1 Tenant shall, at least ninety (90) days before the last day of
the term hereof, give to Landlord a written notice of intention to surrender the
leased premises on that date, but nothing contained herein shall be construed as
an extension of the term hereof or as consent of Landlord to any holding over by
Tenant. At the end of the term or any renewal thereof or other sooner
termination of this Lease, Tenant will peaceably deliver up to the Landlords
possession of the leased premises, together with all improvements or additions
upon or belonging to the same, by whosoever made, in the same condition as
received, or first installed, ordinary wear and tear and damage by fire,
earthquake, act of God or the elements alone excepted. Tenant may, upon the
termination of this Lease, remove, at Tenants sole cost, all trade fixtures
installed by Tenant, title to which shall be in Tenant until such termination,
repairing any damage to the leased caused by such removal. Any of Tenants
personal property and trade fixtures not removed by Tenant at the end of the
term or other sooner termination of this Lease shall be deemed abandoned by the
Tenant if Landlord so elects, and Landlord shall remove, store and disposing of
Tenants abandoned personal property and trade fixtures. Tenant shall indemnify
Landlord against any loss or liability resulting from delay by Tenant in so
surrendering the leased premises, including without limitation, any claims made
by any succeeding Tenant founded on such delay. The voluntary or other surrender
of this lease by Tenant, or a mutual cancellation thereof, shall not work a
merger, and shall, at the option of Landlord, terminate all or any existing
subleases or subtenancies, or may, at the option of Landlord, operate as an
assignment to it of any or all such subleases or subtenancies.
26.2 If Tenant does not give Landlord ninety (90) days written
notice then Tenant will be obligated to pay rent ninety (90) days from when
written notice is given, unless the space has been leased to a new Tenant. In
the event Landlord leases the space to a new Tenant during the ninety (90) day
period, then Tenant will be released from the Lease obligation as of the date of
commencement of the new Lease.
27. MISCELLANEOUS
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27.1 The words "Landlord" and "Tenant" as used herein shall include
the plural as well as the singular. If there is more than one Tenant, the
obligations under this Lease imposed on Tenant shall be joint and several. The
captions preceding the articles of this Lease have been inserted solely as a
matter of convenience and such captions in no way define or limit the scope or
intent of any provision of this Lease.
27.2 The terms, covenants and conditions contained in this Lease
shall bind and inure to the benefit of Landlord and Tenant and, except as
otherwise provided herein, their respective personal representatives and
successors and assigns: provided, however, that upon the sale, assignment or
transfer by
17.
Landlord named herein (or by any subsequent landlord) of its interest in the
Building as owner or Tenant, including any transfer by operation of law,
Landlord (or such subsequent landlord) shall be relieved from all subsequent
obligations and liabilities arising under this Lease subsequent to such sale,
assignment or transfer.
27.3 Any provision of this Lease which shall prove to be invalid,
void, illegal or unenforceable shall in no way affect, impair or invalidate any
other provisions of this Lease, and such provisions and this Lease shall remain
in full force and effect.
27.4 This Lease shall be construed and enforced in accordance with the
laws of the State of California.
27.5 This instrument, including the exhibits hereto, which are made a
part of this Lease, contains the entire agreement between the parties and all
prior negotiations and agreements are merged herein. Tenant hereby acknowledges
that neither Landlord nor Landlord's agents have made any representations or
warranties with respect to the Premises, the Building or this Lease except as
expressly set forth herein.
27.6 In the event of any action or proceeding brought by either party
against the other under this Lease, the prevailing party shall be entitled to
recover all costs and expenses, including its attorneys' fees, in such action or
proceeding in such amount as the court may adjudge reasonable. The prevailing
party shall be determined by the court based upon an assessment of which party's
major arguments made or positions taken in the proceedings could fairly be said
to have prevailed over the other party's major arguments or positions on major
disputed issues in the court's or arbitrator's decision. If Landlord or Tenant,
through no fault of its own, is named as defendant in any suit brought against
Landlord or Tenant in connection with or in any way arising out of this Lease or
Tenant's use of occupancy of the Premises, Landlord or Tenant shall pay
Landlord's or Tenant's costs and expenses, including, without limitation,
reasonable attorneys fees, incurred in such suit or action.
27.7 If Landlord is unable to fulfill or is delayed in fulfilling any
of Landlord's obligations under this Lease, by reason of acts of God, accidents,
repairs, labor disputes, inability to obtain utilities or materials or by any
other reason beyond Landlord's reasonable control, then no such inability or
delay by Landlord shall constitute an actual or constructive eviction, in whole
or in part, or entitle Tenant to any abatement or diminution of Base Rent or
Additional Charges, or relieve Tenant from any of its obligations under this
Lease, or impose any liability upon Landlord or its agents by reason of
inconvenience, annoyance, interruption, injury or loss to or interference with
Tenant's business or use and occupancy or quiet enjoyment of the Premises or any
loss or damage occasioned thereby. Tenant hereby waives and releases any right
to terminate this Lease under Section 1932 (1) of the California Civil Code or
any similar law, statute or ordinance now or hereafter in effect, provided
Landlord make all reasonable efforts within a timely manner to assist Tenant in
relocating to suitable space within the project.
27.8 If Tenant shall retain possession of the Premises or any part
thereof without Landlord's consent following the expiration or sooner
termination of this Lease for any reason, then Tenant shall pay to Landlord one
hundred and seventy-five percent (175%) of the Base Rent in effect immediately
prior to the date of such expiration or termination, subject to adjustment as
provided in Article 4.
27.9 In the event of any default by Landlord hereunder, Tenant shall
look only to Landlord's interest in the Building and the land on which the
Building is located for the satisfaction of Tenant's remedies; and no other
property or assets of Landlord or any partner, member, officer or director
thereof, disclosed or undisclosed, shall be subject to levy, execution or other
enforcement procedure for the satisfaction of Tenant's remedies under or with
respect to this Lease.
27.10 Time is of the essence of this Lease and each and all of its
provisions in which performance is a factor.
27.11 Tenant shall faithfully observe and comply with the rules and
regulations attached to this Lease as Exhibit C and all modifications thereof
---------
and additions thereto from time to time put into effect by Landlord (the "Rules
and Regulations"). Landlord shall have no duty to enforce the Rules and
18.
Regulations by any other tenant or occupant. In the event of any conflict
between the terms and conditions of this Lease and the Terms and conditions of
the Rules and Regulations, this Lease shall control.
27.12 If Tenant signs this Lease as a corporation or a partnership,
each of the persons executing this Lease on behalf of Tenant does hereby
covenant and warrant that Tenant is a duly authorized and existing entity, that
Tenant has full right and authority to enter into this Lease, and that each and
both of the persons signing on behalf of Tenant are authorized to do so. Upon
Landlord's request, Tenant shall provide Landlord with evidence reasonably
satisfactory to Landlord confirming the foregoing covenants and warranties.
27.13 Upon Tenant's paying the Base Rent and Additional Charges and
observing and performing all of the provisions of this Lease, Tenant shall be
entitled to the quiet enjoyment of the Premises for the entire Term, subject to
the provisions of this Lease.
27.14 Tenant covenants and agrees that no diminution of light or view
by any structure that may hereafter be erected (whether or not by Landlord)
shall entitle Tenant to any reduction of the Base Rent or Additional Charges
under this Lease, result in any liability of Landlord to Tenant, or in any other
way affect this Lease or Tenant's obligations hereunder.
27.15 Parking: Throughout the term hereof, Tenant shall have the right
to use for its employees parking space as available in the parking areas in and
about the Building. The parking areas shall be used on a non-exclusive basis
with other Tenants of the Building. Parking for Tenants invitees shall be
available in said parking areas on a non-exclusive, first-come, first-served
basis with invitees of other Tenant of the Building.
27.16 ADA Compliance: Landlord will be responsible for any work
required to bring the premises into ADA compliance.
19.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the day and
year first written above.
LANDLORD: CORNERSTONE PROPERTIES I, LLC
Dated: 8/5/99 By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
TENANT: AVANTGO, INC.
Dated: 8/5/99 By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
20.
