EXHIBIT 10.10
LEASE
BY AND BETWEEN
X. X. XXXXXX CO., AND XXXXXXXXX X. XXXXXX, XXXXX X. XXXXXXX AND XXX X.
XXXXXXXX, TRUSTEES OF THE XXXXXX FAMILY REVOCABLE TRUST
AS LANDLORD
AND
COPPER MOUNTAIN NETWORKS, INC.,
AS TENANT
AUGUST 12, 1997
TABLE OF CONTENTS
Page
ARTICLE 1. REFERENCE................................................ 1
1.1 References............................................... 1
ARTICLE 2. LEASED PREMISES, TERM AND POSSESSION..................... 2
2.1 Demise Of Leased Premises................................ 2
2.2 Right To Use Outside Areas............................... 2
2.3 Lease Commencement Date And Lease Term................... 2
2.4 Delivery Of Possession................................... 3
2.5 Acceptance Of Possession; Tenant Improvement Allowance... 3
2.6 Surrender Of Possession.................................. 3
ARTICLE 3. RENT, SECURITY DEPOSIT AND CREDIT ENHANCEMENTS........... 3
3.1 Base Monthly Rent........................................ 3
3.2 Additional Rent.......................................... 3
3.3 ......................................................... 3
3.4 Payment Of Rent.......................................... 3
3.5 Prepaid Rent............................................. 4
3.6 Security Deposit......................................... 4
3.7 Credit Enhancement....................................... 4
ARTICLE 4. USE OF LEASED PREMISES AND OUTSIDE AREA.................. 4
4.1 Permitted Use............................................ 4
4.2 General Limitations On Use............................... 4
4.3 Signs.................................................... 4
4.4 Compliance With Laws And Private Restrictions............ 4
4.5 Compliance With Insurance Requirements................... 4
4.6 Landlord's Right To Enter................................ 4
4.7 Use Of Outside Areas..................................... 5
4.8 Rules And Regulations.................................... 5
ARTICLE 5. REPAIRS, MAINTENANCE, SERVICES AND UTILITIES............. 5
5.1 Repair And Maintenance................................... 5
(a) Tenant's Obligations................................ 5
(b) Landlord's Obligation............................... 5
5.2 Utilities . . ........................................... 5
5.3 Limitation Of Landlord's Liability....................... 5
ARTICLE 6. ALTERATIONS AND IMPROVEMENTS............................. 5
6.1 By Tenant................................................ 5
6.2 Ownership Of Improvements................................ 6
6.3 Liens.................................................... 6
ARTICLE 7. ASSIGNMENT AND SUBLETTING BY TENANT...................... 6
7.1 By Tenant................................................ 6
7.2 Merger Or Reorganization................................. 6
7.3 Landlord's Election...................................... 6
7.4 Conditions To Landlord's Consent......................... 6
7.5 Effect Of Landlord's Consent............................. 6
ARTICLE 8. LIMITATION ON LANDLORD'S LIABILITY AND INDEMNITY......... 7
8.1 Limitation On Landlord's Liability And Release........... 7
8.2 Tenant's Indemnification Of Landlord..................... 7
ARTICLE 9. INSURANCE................................................ 7
9.1 Tenant's Insurance....................................... 7
9.2 Landlord's Insurance..................................... 8
9.3 Mutual Waiver Of Subrogation............................. 8
ARTICLE 10. DAMAGE To LEASED PREMISES................................ 8
10.1 Landlord's Duty To Restore............................... 8
10.2 Landlord's Right To Terminate............................ 8
10.3 Tenant's Right To Terminate.............................. 9
10.4 Tenant's Waiver.......................................... 9
10.5 Abatement Of Rent........................................ 9
ARTICLE 11. CONDEMNATION............................................. 9
11.1 Tenant's Right To Terminate.............................. 9
i
TABLE OF CONTENTS
(CONTINUED)
PAGE
11.2 Landlord's Right To Terminate.......................... 9
11.3 Restoration............................................ 9
11.4 Temporary Taking....................................... 9
11.5 Division Of Condemnation Award......................... 9
11.6 Abatement Of Rent...................................... 10
11.7 Taking Defined......................................... 10
ARTICLE 12. DEFAULT AND REMEDIES................................... 10
12.1 Events Of Tenant's Default............................. 10
12.2 Landlord's Remedies.................................... 10
12.3 Landlord's Default And Tenant's Remedies............... 11
12.4 Tenant's Waiver........................................ 11
ARTICLE 13. GENERAL PROVISIONS..................................... 11
13.1 Taxes On Tenant's Property............................. 11
13.2 Holding Over........................................... 11
13.3 Subordination To Mortgages............................. 11
13.4 Tenant's Attornment Upon Foreclosure................... 11
13.5 Estoppel Certificate................................... 12
13.6 Transfer By Landlord................................... 12
13.7 Force Majeure.......................................... 12
13.8 Notices................................................ 12
13.9 Attorneys' Fees........................................ 12
13.10 Definitions............................................ 12
(a) Real Property Taxes............................... 12
(b) Landlord's Insurance Costs........................ 13
(c) Property Maintenance Costs........................ 13
(d) Property Operating Expenses....................... 13
(e) Law............................................... 13
(f) Lender............................................ 13
(g) Private Restrictions.............................. 13
(h) Rent.............................................. 13
13.11 General Waivers........................................ 13
13.12 Miscellaneous.......................................... 13
ARTICLE 14. CORPORATE AUTHORITY BROKERS AND ENTIRE AGREEMENT....... 14
14.1 Corporate Authority.................................... 14
14.2 Brokerage Commissions.................................. 14
14.3 Entire Agreement....................................... 14
ARTICLE 15. OPTIONS To EXTEND...................................... 14
ARTICLE 16. HAZARDOUS MATERIAL..................................... 15
16.1 (Insert to follow)..................................... 15
16.2 (Insert to follow)..................................... 15
ii
LEASE
THIS LEASE, dated August 12, 1997 for reference purposes only, is made by
and between X. X. XXXXXX Co., a California corporation, as to an undivided
72.6568 percent interest, and, Xxxxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxx, and Xxx X.
Xxxxxxxx, as trustees of the Xxxxxx Family Revocable Trust, as to an undivided
27,3432 percent interest (collectively, "Landlord") and COPPER MOUNTAIN
NETWORKS, INC., a California corporation ("Tenant"), to be effective and binding
upon the parties as of the date the last of the designated signatories to this
Lease shall have executed this Lease (the "Effective Date of this Lease").
ARTICLE 1.
REFERENCE
1.1 REFERENCES. All references in this Lease to the following terms shall have
the following meaning or refer to the respective address, person, date, time
period, amount, percentage, calendar year or fiscal year as below set forth:
Tenant's Address for Notices: Copper Mountain Networks, Inc.
0000 Xxxxxxxx Xxxxxx Xxxx.
Xxx Xxxxx, Xxxxxxxxxx
Attention: Xxxxxx Xxxxx
Landlord's Address for Notices: X.X. Xxxxxx Co.
Xxxxxx Family Revocable Trust
X.X. Xxx 0000
00000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Landlord's Representative: Xxx X. Xxxxxxxx, Esq.
Sherwood and Xxxxxxxxx
Suite 240
11990 Xxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Phone Number: (000) 000-0000
Intended Commencement Date: November 1, 1997
Intended Term: four (4) years
Lease Expiration Date: four (4) Years from the Lease
Commencement Date, unless earlier
terminated by Landlord in accordance
with the terms of this Lease, or
extended by Tenant pursuant to Article
15, and subject to termination by Tenant
pursuant to Paragraph 2.3.
Options to Renew: one (1) option to renew for a term of
two (2) years.
First Month's Prepaid Rent: $20,400
Tenant's Security Deposit: $20,400
Credit Enhancement: $100,000 letter of credit (initially)
Tenant Improvement Allowance: $72,000
Tenant's Required Liability
Coverage: $2,000,000 Combined Single Limit
Broker(s): The Xxxxxx Xxxxxx Group, Inc.
Property: That certain real property situated in
the City of San Diego, County of San
Diego, State of California, as presently
improved with one building, which real
property is shown on the Site Plan
attached hereto as Exhibit "A" and is
commonly known as or otherwise described
as 0000 Xxxxxxxx Xxxxxx Xxxx., Xxx
Xxxxx, Xxxxxxxxxx.
Building: That certain Building within the Property in
which the Leased Premises are located, which
Building is shown outlined on Exhibit "A" hereto.
Outside Areas: The "Outside Areas" shall mean all areas within
the Property which are located outside the
Building, such as pedestrian walkways, parking
areas, landscaped area, open areas and enclosed
trash disposal areas.
Leased Premises: All the interior space within the Building,
consisting of approximately 24,000 square feet
and, for purposes of this Lease, agreed to
contain said number of square feet, together with
the parking rights described in this Paragraph
1.1. The parties agree that irrespective of the
actual square footage of the Building, the
Building shall be conclusively deemed to consist
of 24,000 square feet for all purposes of this
Lease and there shall be no further adjustment of
any rent payable hereunder if the actual square
footage of the Building is greater than or less
than 24,000 square feet. The Leased Premises are
commonly known as or otherwise described as 0000
Xxxxxxxx Xxxxxx Xxxx., Xxx Xxxxx, Xxxxxxxxxx.
Parking: Exclusive use of the south half of the existing
parking lot, from south of the existing fire lane
to the property boundary, as indicated on Exhibit
A.
Base Monthly Rent: The term "Base Monthly Rent" shall mean the
following:
$20,400 per month from the Lease
Commencement Date for a period of twelve
(12) months. At the end of such 12 month
period, and at each anniversary of the Lease
Commencement Date, Base Monthly Rent shall
be increased by 4% per annum compounded
annually. Thus, as of each adjustment date,
the base monthly rent in effect immediately
prior to such adjustment shall be increased
by 4% as of the following day.
Use: office, research and development, light
assembly, engineering and other related legal
uses
Exhibits: The term "Exhibits" shall mean the Exhibits
of this Lease which are described as follows:
Exhibit "A" - Site Plan showing the Property
and delineating the Building in which the
Leased Premises are located.
Exhibit "B" - Hazardous Substances permitted
pursuant to Paragraph 16.1.
ARTICLE 2.
LEASED PREMISES, TERM AND POSSESSION
2.1 DEMISE OF LEASED PREMISES. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord for the Lease Term and upon the terms and subject to
the conditions of this Lease, that certain interior space described in Article 1
as the Leased Premises. Tenant's lease of the Leased Premises, together with the
appurtenant right to use the Outside Areas as described in Paragraph 2.2 below,
shall be conditioned upon and be subject to the continuing compliance by Tenant
with (i) all the terms and conditions of this Lease, (ii) all Laws governing the
use of the Leased Premises and the Property, (iii) all Private Restrictions,
easements and other matters now of public record respecting the use of the
Leased Premises and Property, and (iv) all reasonable rules and regulations from
time to time established by Landlord.
2.2 RIGHT TO USE OUTSIDE AREAS. As an appurtenant right to Tenant's right to
the use and occupancy of the Leased Premises, Tenant shall have the right to use
the Outside Areas in conjunction with its use of the Leased Premises solely for
the purposes for which they were designated and intended and for no other
purposes whatsoever. In that regard, Tenant shall not be entitled to use the
Outside Areas for storage.
2.3 LEASE COMMENCEMENT DATE AND LEASE TERM. Subject to Paragraph 2.4 below, the
term of this Lease shall begin, and the Lease Commencement Date shall be deemed
to have occurred, on the Intended Commencement Date, as set forth in Article 1
(the "Lease Commencement Date"). The term of this Lease shall in all events end
2.
on the Lease Expiration Date (as set forth in Article 1). The Lease Term shall
be that period of time commencing on the Lease Commencement Date and ending on
the Lease Expiration Date (the "Lease Term"). In addition, Tenant shall have a
one-time option to terminate this Lease effective at the end of the third year
of the Lease Term, in the event that Tenant desires to lease additional space,
and Landlord is unable to provide such additional space which is acceptable to
Tenant (the "Termination Option"). The Termination Option may be exercised by
written notice to Landlord given not less than six (6) months prior to the third
anniversary of the Lease Commencement Date and payment by Tenant of a lease
termination fee in the amount of $45,000 at the time of such written notice.
2.4 DELIVERY OF POSSESSION. Landlord shall deliver to Tenant possession of the
Leased Premises immediately upon execution of this Lease. Tenant shall be
entitled to occupy the Leased Premises prior to the Lease Commencement Date,
and such occupancy shall be subject to ail of the provisions of this Lease;
provided, however, that Tenant's obligation to pay Base Rent shall not commence
until the Lease Commencement Date. Such early possession shall not advance the
Lease Expiration Date.
2.5 ACCEPTANCE OF POSSESSION; TENANT IMPROVEMENT ALLOWANCE. Landlord agrees
that as of the Lease Commencement Date, the following are or will be in good
working order: the roof (structure and membrane), foundation, structural
elements, truck doors and all existing plumbing, lighting, heating, ventilating
and air conditioning systems and other systems serving the Leased Premises.
Landlord agrees to provide Tenant with the Tenant Improvement Allowance. Tenant
may use the Tenant Improvement Allowance to make improvements and installations
to the Leased Premises, and Landlord shall pay the Tenant Improvement Allowance
to Tenant upon presentation by Tenant of (i) invoices evidencing the work clone
or Installations made, (ii) proof or payment by Tenant of such invoices, and
(iii) appropriate lien waivers from contractors. In the event that Tenant fails
to use the Tenant Improvement Allowance within thirty days of the Lease
Commencement Date. Landlord shall credit the Tenant Improvement Allowance (or so
much of it as may then remain) against Base Monthly Rent or other sums due from
Tenant hereunder. All improvements made pursuant to this paragraph 2.5 shall be
subject to the provisions of paragraph 6.1.
2.6 SURRENDER OF POSSESSION. Immediately prior to the expiration or upon the
sooner termination of this Lease, Tenant shall remove all of Tenant's signs
from the exterior of the Building and shall remove all of Tenant's equipment,
trade fixtures, furniture, supplies, wall decorations and other personal
property from within the Leased Premises, the Building and the Outside Areas,
and shall vacate and surrender the Leased Premises, the Building. the Outside
Arcs and the Property to Landlord in the same condition, broom clean, as existed
at the Lease Commencement Date, reasonable wear and tear excepted. Tenant shall
repair all damage to the Leased Premises, the exterior of the Building and the
Outside Areas caused by Tenant's removal of Tenant's property. Additionally, to
the extent that Landlord shall have notified Tenant in writing at the time the
improvements were completed that it desired to have certain improvements removed
at the expiration or sooner termination of the. Lease, Tenant shall, upon the
expiration or sooner termination of the Lease, remove any such improvements
constructed or installed by Tenant and repair all damage caused by such
removal.
ARTICLE 3.
RENT, SECURITY DEPOSIT AND CREDIT ENHANCEMENTS
3.1 BASE MONTHLY RENT. Commencing on the Lease Commencement Date and continuing
throughout the lease Term, Tenant shall pay to Landlord, without prior demand
therefor, in advance on the first day of each calendar month, the amount set
forth as "Base Monthly Rent" in Article 1 (the "Base Monthly Rent").
3.2 ADDITIONAL RENT. Commencing on the date possession of the Leased Premises
is delivered to Tenant, and continuing throughout the Lease Term, in addition to
the Base Monthly Rent and to the extent not required by Landlord to be
contracted for and paid directly by Tenant, Tenant shall pay to Landlord as
additional rent (the "Additional Rent") the following amounts:
(a) An amount equal to all Property Operating Expenses (as defined in
Article 13) incurred by Landlord. Landlord may estimate the amount of Property
Operating Expenses for any lease year, and Tenant shall be required to pay 1/12
of such estimated amount on the first day of each calendar month of such lease
year. Within 60 days of the end of such lease year, Landlord shall determine the
actual amount of such lease year's Property Operating Expenses. If the actual
amount of such Property Operating Expenses exceeds the amount paid by Tenant in
such lease year, Tenant shall pay Landlord the shortage with the next
installment of Base Monthly Rent. If the actual amount of such Property
Operating Expenses is less than the amount paid by Tenant in such lease year,
Tenant shall be entitled to a credit against future Base Monthly Rent or
Additional Rent or to a refund of any such excess upon termination of this
Lease. Tenant shall have the right to reasonably audit Landlord's calculation of
Property Operating Expenses.
(b) Any other charges or reimbursements due Landlord from Tenant pursuant
to the terms of this Lease.
3.3 If any installment of Base Monthly Rent or Additional Rent is not received
by Landlord from Tenant within ten calendar days after the same becomes due,
Tenant shall pay to Landlord a late charge in an amount equal to the amount
equal to 6% of the Base Monthly Rent or the Additional Rent not so paid. In
addition, Tenant shall also pay Landlord interest on any Base Monthly Rent or
Additional Rent not paid when due, at an interest rate equal to the maximum rate
allowed by law, from the date such amount is due, until such amount is paid in
full.
3.
3.4 PAYMENT OF RENT. Except as specifically provided otherwise in this Lease,
all rent shall be paid in lawful money of the United States, without any
abatement, reduction or offset for any reason whatsoever, to Landlord at such
address as Landlord may designate from time to time. Tenant's obligation to pay
Base Monthly Rent and all Additional Rent shall be appropriately prorated at the
commencement and expiration of the Lease Term. The failure by Tenant to pay any
Additional Rent as required pursuant to this Lease when due shall be treated the
same as a failure by Tenant to pay Base Monthly Rent when due, and Landlord
shall have the same rights and remedies against Tenant as Landlord would have
had Tenant failed to pay the Base Monthly Rent when due.
3.5 PREPAID RENT. Tenant shall, upon execution of this Lease, pay to Landlord
the amount set forth in Article 1 as "First Month's Prepaid Rent" as prepayment
of rent for credit against the first payment of Base Monthly Rent due hereunder.
3.6 SECURITY DEPOSIT. Tenant has deposited with Landlord the amount set forth
in Article 1 as the "Security Deposit" and provided the letter of credit
described in Paragraph 3.7 below, as security for the performance by Tenant of
the terms of this Lease to be performed by Tenant, and not as prepayment of
rent. Landlord may apply such portion or portions of the Security Deposit as are
reasonably necessary for the following purposes: (i) to remedy any default by
Tenant in the payment of Base Monthly Rent or Additional Rent or a late charge
or interest on defaulted rent, or any other monetary payment obligation of
Tenant under this Lease; (ii) to remedy any other default of Tenant. In the
event the Security Deposit or any portion thereof is so used, Tenant shall pay
to Landlord, promptly upon demand, an amount in cash sufficient to restore the
Security Deposit to the full original sum. Tenant shall not be entitled to any
interest on the Security Deposit. If Landlord transfers the Building or the
Property during the Lease Term, Landlord may pay the Security Deposit to any
subsequent owner in conformity with the provisions of Section 1950.7 of the
California Civil Code and/or any successor statute, in which event the
transferring landlord shall be released from all liability for the return of the
Security Deposit.
3.7 CREDIT ENHANCEMENT. Tenant shall provide Landlord with an irrevocable
standby letter of credit in form reasonably satisfactory to Landlord from an
issuer reasonably satisfactory to Landlord in the initial amount of $100,000 as
additional security for the performance by Tenant of its obligations under this
Lease. The face amount of such letter of credit may be reduced annually by
$25,000 on each anniversary of the Commencement Date, provided only that Tenant
is not then in material default of its obligations under this Lease.
ARTICLE 4.
USE OF LEASED PREMISES AND OUTSIDE AREA
4.1 PERMITTED USE. Tenant shall be entitled to use the Leased Premises solely
for the "Permitted Use" as set forth in Article 1 and for no other purpose
whatsoever.
4.2 GENERAL LIMITATIONS ON USE. Tenant shall not do or permit anything to be
done in or about the Leased Premises, the Building, the Outside Areas or the
Property which does or could (i) jeopardize the structural integrity of the
Building or (ii) cause damage to any part of the Leased Premises, the Building,
the Outside Areas or the Property. Tenant shall not operate any equipment within
the Leased Premises which does or could (i) injure, vibrate or shake the Leased
Premises or the Building, (ii) damage or overload of any electrical, plumbing,
heating, ventilating or air conditioning systems within or servicing the Leased
Premises or the Building. Tenant shall not drain or discharge any fluids in the
landscaped areas or across the paved areas of the Property. Tenant shall not use
any of the Outside Areas for the storage of its materials, supplies, inventory
or equipment and all such materials, supplies, inventory or equipment shall at
all times be stored within the Leased Premises. Tenant shall not commit nor
permit to be committed any waste in or about the Leased Premises, the Building,
the Outside Areas or the Property.
4.3 SIGNS. Tenant may install in the Leased Premises such signage as it shall
desire, subject only to compliance with all applicable Laws and Restrictions,
and subject to having obtained Landlord's consent to such signage, which
Landlord agrees not to unreasonably withhold, delay or condition. Tenant shall
remove all of Tenant's signs, repair any damage caused thereby, and restore the
surface upon which the sign was affixed to its original condition, all to
Landlord's reasonable satisfaction, upon the termination of this Lease.
4.4 COMPLIANCE WITH LAWS AND PRIVATE RESTRICTIONS. Tenant shall abide by and
shall promptly observe and comply with, at its sole cost and expense, all Laws
and Private Restrictions respecting the use and occupancy of the Leased
Premises, the Building, the Outside Areas or the Property including, without
limitation, all Laws governing the use and/or disposal of hazardous materials;
provided, however, that Tenant shall not be responsible for contamination of the
Leased Premises by hazardous materials existing as of the date the Lease
Premises are delivered to Tenant unless caused by Tenant, nor shall Tenant be
required to make any capital repairs or improvements to the Leased Premises
unless such capital repairs or replacements are required by a governmental
authority as the direct result of Tenant's particular use of the Premises.
Tenant's obligation hereunder shall survive the termination of this Lease.
4.5 COMPLIANCE WITH INSURANCE REQUIREMENTS. Tenant shall comply with all
requirements of any insurance company, insurance underwriter, or Board of Fire
Underwriters which are necessary to maintain, at standard rates, the insurance
coverages covering the Leased Premises or the Property carried by either
Landlord or Tenant pursuant to this Lease.
4.
4.6 LANDLORD'S RIGHT TO ENTER. Landlord and its agents shall have the right to
enter the Leased Premises during normal business hours after giving Tenant
reasonable notice and subject to Tenant's reasonable security measures for the
purpose of (i) inspecting the same; (ii) showing the Leased Premises to
prospective purchasers, mortgagees or, during the last six (6) months of the
Lease Term, tenants; (iii) performing any of Landlord's obligations hereunder;
(iv) posting notices of nonresponsibility (and for such purposes Tenant shall
provide Landlord at least thirty days' prior written notice of any work to be
performed on the Leased Premises). Landlord shall also have the right to enter
the Leased Premises at any time, in case of emergency. Any entry into the Leased
Premises obtained by Landlord in accordance with this paragraph shall not be
deemed to be a forcible or unlawful entry into, or a detainer of, the Leased
Premises, or an eviction, actual or constructive of Tenant from the Leased
Premises or any portion thereof.
4.7 USE OF OUTSIDE AREAS. Tenant, in its use of the Outside Areas, shall at all
times keep the Outside Areas in a safe condition free and clear of all debris,
trash (except within existing enclosed trash areas), inoperable vehicles and the
like.
4.8 RULES AND REGULATIONS. In the event Tenant is no longer the sole tenant of
the Leased Premises, Landlord shall have the right from time to time to
establish reasonable rules and regulations and/or amendments or additions
thereto respecting the use of the Leased Premises and the Outside Areas for the
care and orderly management of the Property.
ARTICLE 5.
REPAIRS, MAINTENANCE, SERVICES AND UTILITIES
5.1 REPAIR AND MAINTENANCE. Subject to the provisions of Article 10, the
parties shall have the following obligations and responsibilities with respect
to the repair and maintenance of the Leased Premises, the Building, the Outside
Areas, and the Property.
(a) TENANT'S OBLIGATIONS. Subject to the obligations of Landlord contained
in subsection (b) below, Tenant shall, at all times during the Lease Term and at
its sole cost and expense, maintain in good order, condition and repair the
Leased Premises and every part thereof including (i) all interior walls, floors
and ceilings, (ii) all electrical wiring, conduits, connectors and fixtures,
(iii) all plumbing, pipes, sinks, toilets, faucets and drains, and (iv) all
lighting fixtures, bulbs and lamps and (v) the roof membrane, exterior (but not
loadbearing) walls, interior windows and doors, (vi) all landscaping and other
improvements to the Outside Areas, and (vii) all building systems. If Tenant
shall fail to perform the required maintenance or fail to make repairs required
of it pursuant to this paragraph within a reasonable period of time following
notice from Landlord to do so, then Landlord may, at its election and without
waiving any other remedy it may otherwise have under this Lease or at law,
perform such maintenance or make such repairs and charge to Tenant, as
Additional Rent, the costs so incurred by Landlord for same.
(b) LANDLORD'S OBLIGATION. Landlord, at Landlord's sole cost (and not to
be included as a Property Operating Expense or Property Maintenance Cost) shall,
at all times during the Lease Term, maintain in good condition and repair the
foundation, roof structure, load-bearing walls, exterior windows, exterior doors
and all structural elements of the Building. Landlord shall also be responsible
for the cost to remediate any code violations of the existing Building or
improvements, before Tenant makes its Tenant Improvements. Notwithstanding the
foregoing, unless such damage is covered by insurance carried by either party or
required to be carried by Landlord under this lease, Tenant shall be responsible
for all damage to the Leased Premises caused by Tenant, or Tenant's agents,
employees, contractors or invitees.
5.2 UTILITIES. Tenant shall pay all charges for water, gas, electricity and
storm and sanitary sewer services supplied to the Leased Premises at Tenant's
request or for its benefit.
5.3 LIMITATION OF LANDLORD'S LIABILITY. Landlord shall not be liable to Tenant
for injury to Tenant, its employees, agents, invitees or contractors, damage to
Tenant's property or loss of Tenant's business or profits, nor shall Tenant be
entitled to terminate this Lease or to any reduction in or abatement of rent by
reason of any failure, interruption, rationing or other curtailment in the
supply of water, electric current, gas or other utility service to the Leased
Premises from any cause, other than Landlord's negligence, willful misconduct or
breach of this Lease.
5.
ARTICLE 6.
ALTERATIONS AND IMPROVEMENTS
6.1 BY TENANT. Tenant shall not make any alterations to or modifications of the
Leased Premises or construct any improvements within the Leased Premises until
Landlord shall have first approved, in writing, the plans and specifications
therefor, which approval may not be unreasonably withheld, delayed or
conditioned. All such modifications, alterations or improvements, once so
approved, shall be made, constructed or installed by Tenant at Tenant's expense
(including all permit fees and governmental charges related thereto), using a
licensed contractor in substantial compliance with the Landlord-approved plans
and specifications therefor. All work undertaken by Tenant shall be done in
accordance with all Laws and in a good and workmanlike manner using new
materials of good quality. Tenant shall not commence the making of any such
modifications or alterations or the construction of any such improvements until
(i) all required governmental approvals and permits shall have been obtained,
(ii) all requirements regarding insurance imposed by this Lease have been
satisfied and (iii) Tenant shall have given Landlord at lease five business days
prior written notice of its intention to commence such work so that Landlord may
post and file notices of non-responsibility. In no event shall Tenant make any
modification, alterations or improvements whatsoever to the Outside Areas or the
exterior or structural components of the Building. Notwithstanding the
foregoing, Tenant, without Landlord's prior written consent, shall be permitted
to make non-structural alterations to the Building, provided that: (a) such
alterations do not exceed $10,000 individually or $100,000 in the aggregate, (b)
Tenant shall timely provide Landlord with notice of the proposed improvements
including such details as Landlord may reasonably request regarding the proposed
improvements and their estimated cost and (c) Tenant shall, upon Landlord's
request, remove the alteration at the termination of the Lease and restore the
Leased Premises to their condition existing prior to such alteration. Tenant
agrees to provide landlord with copies of plans for all material improvements or
alterations to the Leased Premises, regardless of whether or not Landlord's
consent to such improvements or alterations is required hereunder.
6.2 OWNERSHIP OF IMPROVEMENTS. All modifications, alterations and improvements
made or added to the Leased Premises by Tenant (other than Tenant's inventory,
equipment, movable furniture, wall decorations and trade fixtures) shall be
deemed real property and a part of the Leased Premises, but shall remain the
property of Tenant during the Lease Term. At the expiration or sooner
termination of this Lease, all such modifications, alterations and improvements
(other than Tenant's inventory, equipment, movable furniture, wall decorations
and trade fixtures), shall automatically become the property of Landlord and
shall be surrendered to Landlord as part of the Leased Premises as required
pursuant to Article 2.
6.3 LIENS. Tenant shall keep the Property and every part thereof free from any
lien, and shall pay when due all bills arising out of any work performed,
materials furnished, or obligations incurred by Tenant, its agents, employees or
contractors relating to the Property. If any such claim of lien is recorded
against Tenant's interest in this Lease, the Property or any part thereof,
Tenant shall bond against, discharge or otherwise cause such lien to be entirely
released within thirty (30) days after the same has been recorded. Tenant
further agrees to indemnify and hold harmless any hypothecation or security
device now or hereafter placed upon the Leased Premises, relative to any liens
or claim of liens recorded against Tenant's interest in this Lease, the Property
or any part thereof, arising out of or relating to any work performed, materials
furnished or obligations incurred by Tenant, its agents, employees or
contractors.
ARTICLE 7.
ASSIGNMENT AND SUBLETTING BY TENANT
7.1 BY TENANT. Tenant shall not sublet the Leased Premises or any portion
thereof or assign its interest in this Lease, whether voluntarily or by
operation of Law, without Landlord's prior written consent, which consent shall
not be unreasonably withheld, delayed or conditioned. Any attempted subletting
or assignment without Landlord's prior written consent, at Landlord's election,
shall constitute a default by Tenant under the terms of this Lease. The
acceptance of rent by Landlord from any person or entity other than Tenant, or
the acceptance of rent by Landlord from Tenant with knowledge of a violation of
the provisions of this paragraph, shall not be deemed to be a waiver by Landlord
of any provision of this Article or this Lease or to be a consent to any
subletting by Tenant or any assignment of Tenant's interest in this Lease. Any
sublease of the entire Building shall terminate Tenant's Extension Option
pursuant to Article 15.
7.2 MERGER OR REORGANIZATION. If Tenant is a corporation, any dissolution,
merger, consolidation or other reorganization of Tenant, the sale or other
transfer of the capital stock of Tenant or the sale of substantially all the
assets of Tenant, shall not be deemed an assignment of Tenant's interest in this
Lease. Notwithstanding the foregoing, a transfer of greater than 50% of the
ownership interest of Tenant shall be deemed to be an assignment of this Lease,
except in the case where such transfer is in connection with a public offering
of Tenant's securities or the merger or consolidation of Tenant in a transaction
where the surviving entity or its affiliates are a company of greater net worth
than Tenant. If Tenant is a partnership, a withdrawal or change, voluntary,
involuntary or by operation of Law, of any general partner, or the dissolution
of the partnership, shall not be deemed an assignment of Tenant's interest in
this Lease.
7.3 LANDLORD'S ELECTION. If Tenant shall desire to assign its interest under
the Lease or to sublet the Leased Premises, Tenant must first notify Landlord,
in writing, of its intent to so assign or sublet, at least ten (10) days in
advance of the date it intends to so assign its interest in this Lease or sublet
the Leased Premises, specifying in detail the terms of such proposed assignment
or subletting, including the name of the proposed assignee or
6.
sublessee, the property assignee's or sublessee's intended use of the Leased
Premises, current financial statements (including a balance sheet, income
statement and statement of cash flow, all prepared in accordance with generally
accepted accounting principles) of such proposed assignee or sublessee, the form
of documents to be used in effectuating such assignment or subletting and such
other information as Landlord may reasonably request. Landlord shall have a
period of ten (10) business days following receipt of such notice and the
required information within which to do one of the following: (i) consent to
such requested assignment or subletting subject to Tenant's compliance with the
conditions set forth in Paragraph 7.4 below, or (ii) refuse to so consent to
such requested assignment or subletting, provided that such consent shall not be
unreasonably withheld, delayed or conditioned.
7.4 CONDITIONS TO LANDLORD'S CONSENT. If Landlord elects to consent to such
requested assignment or subletting, such consent shall be expressly conditioned
upon the occurrence of each of the following conditions:
(a) Landlord having approved in form and substance the assignment or
sublease agreement and any ancillary documents, which approval shall not be
unreasonably withheld by Landlord if the requirements of this Article 7 are
otherwise complied with.
(b) Each such sublessee or assignee having agreed, in writing satisfactory
to Landlord and its counsel and for the benefit of Landlord, to assume, to be
bound by, and to perform the obligations of this Lease to be performed by Tenant
which relate to space being subleased.
(c) Tenant having reimbursed to Landlord all reasonable costs and
reasonable attorneys' fees incurred by Landlord in conjunction with the
processing and documentation of any such requested subletting or assignment (not
to exceed $500 per request).
(d) Tenant having delivered to Landlord a complete and fully-executed
duplicate original of such sublease agreement or assignment agreement (as
applicable) and all related agreements.
7.5 EFFECT OF LANDLORD'S CONSENT. No subletting or assignment, even with the
consent of Landlord, shall relieve Tenant of its personal and primary obligation
to pay rent and to perform all of the other obligations to be performed by
Tenant hereunder. Consent by Landlord to one or more assignments of Tenant's
interest in this Lease or to one or more sublettings of the Leased Premises
shall not be deemed to be a consent to any subsequent assignment or subletting.
ARTICLE 8.
LIMITATION ON LANDLORD'S LIABILITY AND INDEMNITY
8.1 LIMITATION ON LANDLORD'S LIABILITY AND RELEASE. Landlord shall not be
liable to Tenant for, and Tenant hereby releases Landlord and its partners,
principals, members, officers, agents, employees, lenders, attorneys, and
consultants from, any and all liability, whether in contract, tort or on any
other basis, for any injury to or any damage sustained by Tenant, Tenant's
agents, employees or contractors resulting from the Leased Premises, the
Building, the Property or the Outside Areas, except that Tenant does not so
release Landlord from such liability to the extent such damage was proximately
caused by Landlord's negligence, willful misconduct, or breach of this lease.
8.2 TENANT'S INDEMNIFICATION OF LANDLORD. Tenant shall defend with counsel
reasonably satisfactory to Landlord any claims made or legal actions filed or
threatened against Landlord with respect to the violation of any Law, or the
death, bodily injury, personal injury or property damage suffered by any third
party occurring within the Leased Premises (including the Outside Areas and all
other parts of the Leased Premises) or resulting from Tenant's use or occupancy
of the Leased Premises, the Building or the Outside Areas, and Tenant shall
indemnify and hold Landlord, Landlord's partners, principals, members,
employees, agents and contractors harmless from any loss liability, penalties,
or expense resulting therefrom, except to the extent proximately caused by the
negligence or willful misconduct of Landlord or the breach by Landlord of this
lease. This indemnity agreement shall survive the date of the expiration or
sooner termination of this Lease.
ARTICLE 9.
INSURANCE
9.1 TENANT'S INSURANCE. Tenant shall maintain insurance complying with all of
the following:
(a) Tenant shall procure, pay for and keep in full force and effect, at
all times during the Lease Term, the following:
(i) Comprehensive general liability insurance insuring Tenant against
liability for personal injury, bodily injury, death and damage to property
occurring within the Leased Premises, or resulting from Tenant's use or
occupancy of the Leased Premises, the Building, the Outside Areas or the
Property, or resulting from Tenant's activities in or about the Leased Premises
or the Property, with coverage in an amount equal to Tenant's Required Liability
Coverage (as set forth in Article 1), which insurance shall contain a "broad
form liability" endorsement insuring Tenant's performance of Tenant's
obligations to indemnify Landlord as contained in this Lease.
7.
(ii) Fire and property damage insurance in so-called "fire and
extended coverage" form insuring Tenant against loss from physical damage to
Tenant's personal property, inventory, trade fixtures and improvements within
the Leased Premises with coverage for the full actual replacement cost thereof;
(iii) Workers' compensation insurance and any other employee benefit
insurance sufficient to comply with all laws; and
(iv) With respect to making of alterations or the construction of
improvements or the like undertaken by Tenant, contingent liability and
builder's risk insurance, in an amount and with coverage reasonably satisfactory
to Landlord.
(b) Each policy of liability insurance required to be carried by Tenant
pursuant to this paragraph or actually carried by Tenant with respect to the
Leased Premises or the Property: (i) shall, except with respect to insurance
required by subparagraph (a)(iii) above, name Landlord, and such others as are
designated by Landlord, as additional insureds; (ii) shall be primary insurance
providing that the insurer shall be liable for the full amount of the loss, up
to and including the total amount of liability set forth in the declaration of
coverage, without the right of contribution from or prior payment by any other
insurance coverage of Landlord; (iii) shall be in a form satisfactory to
Landlord; (iv) shall be carried with companies reasonably acceptable to Landlord
with Best's ratings of at least A and XI; (v) shall provide that such policy
shall not be subject to cancellation, lapse or change except after at least
thirty days prior written notice to Landlord, and (vi) shall contain a so-called
"severability" or "cross liability" endorsement. Each policy of property
insurance maintained by Tenant with respect to the Leased Premises or the
Property or any property therein (i) shall provide that such policy shall not be
subject to cancellation, lapse or change except after at least thirty days prior
written notice to Landlord and (ii) shall contain a waiver and/or a permission
to waive by the insurer of any right of subrogation against Landlord, its
partners, principals, members, officers, employees, agents and contractors,
which might arise by reason of any payment under such policy or by reason of any
act or omission of Landlord, its partners, principals, members, officers,
employees, agents and contractors.
(c) Prior to the time Tenant or any of its contractors enters the Leased
Premises, Tenant shall deliver to Landlord, with respect to each policy of
insurance required to be carried by Tenant pursuant to this Article, a copy of
such policy (appropriately authenticated by the insurer as having been issued,
premium paid) or a certificate of the insurer certifying in form satisfactory to
Landlord that a policy has been issued, premium paid, providing the coverage
required by this Paragraph and containing the provisions specified herein. With
respect to each renewal or replacement of any such insurance, the requirements
of this Paragraph must be complied with not less than thirty days prior to the
expiration or cancellation of the policies being renewed or replaced.
9.2 Landlord's Insurance. With respect to insurance maintained by Landlord:
(a) Landlord shall maintain, as the minimum coverage required of it by this
Lease, fire and property damage insurance in so-called "fire and extended
coverage" form insuring Landlord (and such others as Landlord may designate)
against loss from physical damage to the Building with coverage of not less than
one hundred percent (100%) of the full actual replacement cost thereof and
against loss of rents for a period of not less than six months. Such fire and
property damage insurance, at Landlord's election but without any requirements
on Landlord's behalf to do so, (i) may be written in so-called "all risk" form,
excluding only those perils commonly excluded from such coverage by Landlord's
then property damage insurer; (ii) may provide coverage for physical damage to
the improvements so insured for up to the entire full actual replacement cost
thereof; and/or (iii) may be endorsed to cover loss or damage caused by any
additional perils against which Landlord may elect to insure. Notwithstanding
the foregoing, if Landlord elects to carry earthquake or flood insurance,
Landlord may pass through to Tenant as a Property Operating Expense only
reasonable premiums for such coverages if such coverages are available at
commercially reasonable rates and purchased by other owners of similar
properties in the area of the Leased Premises. Under no circumstances, however,
shall Tenant be required to pay or reimburse to Landlord the amount of any
deductibles for such coverages or for premiums for flood or earthquake coverage
exceeding $ 4,000 per year. Landlord shall not be required to cause such
insurance to cover any of Tenant's personal property, inventory, and trade
fixtures, or any modifications, alterations or improvements made or constructed
by Tenant to or within the Leased Premises. Landlord shall use commercially
reasonable efforts to obtain such insurance at competitive rates.
(b) Landlord shall maintain comprehensive general liability insurance
insuring Landlord (and such others as are designated by Landlord) against
liability for personal injury, bodily injury, death, and damage to property
occurring in, on or about, or resulting from the use or occupancy of the
Property, or any portion thereof, with combined single limit coverage of at
least Two Million Dollars ($2,000,000). Landlord may carry such greater coverage
as Landlord or Landlord's Lender, insurance broker, advisor or counsel may from
time to time determine is reasonably necessary for the adequate protection of
Landlord and the Property.
(c) Landlord may maintain any other insurance which in the opinion of its
insurance broker, advisor or legal counsel is prudent in carry under the given
circumstances, provided such insurance is commonly carried by owners of property
similarly situated and operating under similar circumstances.
9.3 Mutual Waiver Of Subrogation. Landlord hereby releases Tenant, and Tenant
hereby releases Landlord and its respective partners, principals, members,
officers, agents, employees and servants, from any and all liability for loss,
damage or injury to the property of the other in or about the Leased Premises or
the Property which is caused by or results from a peril or event or happening
which is covered by insurance actually carried and in force
8.
at the time of the loss by the party sustaining such loss; provided, however,
that such waiver shall be effective only to the extent permitted by the
insurance covering such loss and to the extent such insurance is not prejudiced
thereby.
ARTICLE 10.
DAMAGE TO LEASED PREMISES
10.1 Landlord's Duty To Restore. If the Leased Premises, the Building or the
Outside Area are damaged by any peril after the Effective Date of this Lease,
Landlord shall restore the same, as and when required by this paragraph, unless
this Lease is terminated by Landlord pursuant to Paragraph 10.2 or by Tenant
pursuant to Paragraph 10.3. If this Lease is not so terminated, then upon the
issuance of all necessary governmental permits, Landlord shall commence and
diligently prosecute to completion the restoration of the Leased Premises, the
Building or the Outside Area, as the case may be, to the extent then allowed by
law, to substantially the same condition in which it existed as of the Lease
Commencement Date and Tenant shall restore any improvements made by it to the
Leased Premises and its trade fixtures. Notwithstanding the foregoing, Landlord
shall have no obligation to restore any Improvements made by Tenant to the
Leased Premises or any of Tenant's personal property, inventory or trade
fixtures.
10.2 Landlord's Right To Terminate. Landlord shall have the option to terminate
this Lease in the event any of the following occurs, which option may be
exercised only by delivery to Tenant of a written notice of election to
terminate within thirty days after the date of such damage or destruction:
(a) The Building is damaged by any peril covered by valid and collectible
insurance actually carried by Landlord and in force at the time of such damage
or destruction (an "insured peril ") to such an extent that the estimated cost
to restore the Building exceeds the lesser of (i) the insurance proceeds
available from insurance actually carried by Landlord unless Tenant agrees to
pay the difference between the cost of restoration and the amount of available
insurance proceeds, or (ii) fifty percent of the then actual replacement cost
thereof;
(b) The Building is damaged by an uninsured peril, which peril Landlord
was not required to insure against pursuant to the provisions of Article 9 of
this Lease.
(c) The Building is damaged by any peril and, because of the laws then in
force, the Building (i) cannot be restored at reasonable cost or (ii) if
restored, cannot be used for the same use being made thereof before such damage.
10.3 Tenant's Right To Terminate. If the Leased Premises, the Building or the
Outside Area are damaged by any peril and Landlord does not elect to terminate
this Lease or is not entitled to terminate this Lease pursuant to this Article,
then as soon as reasonably practicable, Landlord shall furnish Tenant with the
written opinion of Landlord's architect or construction consultant as to when
the restoration work required of Landlord may be complete. Tenant shall have the
option to terminate this Lease in the event any of the following occurs, which
option may be exercised only by delivery to Landlord of a written notice of
election to terminate within thirty (30) days after Tenant receives from
Landlord the estimate of the time needed to complete such restoration:
(a) If the time estimated to substantially complete the restoration
exceeds six (6) months from and after the date the architect's or construction
consultant's written opinion is delivered; or
(b) If the damage occurred within twelve (12) months of the last day of
the Lease Term and the time estimated to substantially complete the restoration
exceeds ninety (90) days from and after the date such restoration is commenced.
10.4 Tenant's Waiver. Landlord and Tenant agree that the provisions of
Paragraph 10.4 above, captioned "Tenant's Right To Terminate", are intended to
supersede and replace the provisions contained in California Civil Code, Section
1932, Subdivision 2, and California Civil Code, Section 1934, and accordingly,
Tenant hereby waives the provisions of such Civil Code Sections and the
provisions of any successor Civil Code Sections or similar laws hereinafter
enacted.
10.5 Abatement Of Rent. In the event of damage to the Leased Premises which
does not result in the termination of this Lease, the Base Monthly Rent and any
Additional Rent shall be temporarily abated during the period of damage in
proportion in the degree to which Tenant's use of the Leased Premises is
impaired by such damage, unless such damage results from the willful act of
Tenant, Tenant's employees or agents.
ARTICLE 11.
CONDEMNATION
11.1 Tenant's Right To Terminate. Except as otherwise provided in Paragraph
11.4 below regarding temporary takings, Tenant shall have the option to
terminate this Lease by notice given within thirty (30) days of a taking, if, as
a result of any taking, (i) all of the Leased Premises is taken, or (ii) twenty-
five percent (25%) or more of the Leased Premises is taken and the part of the
Leased Premises that remains cannot, within a reasonable period of time, be made
suitable for the continued operation of Tenant's business. Tenant must exercise
such option
9.
within a reasonable period of time, to be effective on the later to occur of (i)
the date that possession of that portion of the Leased Premises that is
condemned is taken by the condemnor or (ii) the date Tenant vacated the Leased
Premises.
11.2 Landlord's Right To Terminate. Except as otherwise provided in Paragraph
11.4 below regarding temporary takings, Landlord shall have the option to
terminate this Lease by notice given within thirty (30) days of a taking, if, as
a result of any taking, (i) all of the Leased Premises is taken, (ii) twenty-
five percent (25%) or more of the Leased Premises is taken and the part of the
Leased Premises that remains cannot, within a reasonable period of time, be made
reasonably suitable for the continued operation of Tenant's business, or (iii)
because of the laws then in force, the Leased Premises may not be used for the
same use being made before such taking, whether or not restored as required by
Paragraph 11.3 below. Any such option to terminate by Landlord must be exercised
within a reasonable period of time, to be effective as of the date possession is
taken by the condemnor.
11.3 Restoration. If any part of the Leased Premises or the Building is taken
and this Lease is not terminated, then Landlord shall, to the extent not
prohibited by laws then in force, repair any damage occasioned thereby to the
remainder thereof to a condition reasonably suitable for Tenant's continued
operations and otherwise, to the extent practicable, in the manner and to the
extent provided in Paragraph 10.1 and Tenant shall repair, as necessary, any
improvements installed by it in the Leased Premises or trade fixture damaged by
such taking.
11.4 Temporary Taking. If a portion of the Leased Premises is temporarily taken
for a period of six months or less and such period does not extend beyond the
Lease Expiration Date, this Lease shall remain in effect. If any portion of the
Leased Premises is temporarily taken for a period which exceeds six months or
which extends beyond the Lease Expiration Date, then the rights of Landlord and
Tenant shall be determined in accordance with Paragraphs 11.1 and 11.2 above.
11.5 Division Of Condemnation Award. Any award made for any taking of the
Property, the Building, or the Leased Premises, or any portion thereof, or the
leasehold interest, shall belong to and be paid to Landlord, and Tenant hereby
assigns to Landlord all of its right, title and interest in any such award;
provided, however, that Tenant shall be entitled to receive any portion of the
award that is made specifically (i) for the taking of personal property,
inventory or trade fixtures belonging to Tenant, (ii) for the interruption of
Tenant's business or its moving costs, or (iii) for the unamortized value of any
leasehold improvements installed and paid for by Tenant, amortized over a four-
year period. The rights of Landlord and Tenant regarding any condemnation shall
be determined as provided in this Article, and each party hereby waives the
provisions of Section 1265.130 of the California Code of Civil Procedure, and
the provisions of any similar law hereinafter enacted, allowing either party to
petition the Supreme Court to terminate this Lease and/or otherwise allocate
condemnation awards between Landlord and Tenant in the event of a taking of the
Leased Premises.
11.6 Abatement Of Rent. In the event of a taking of the Leased Premises which
does not result in a termination of this Lease (including a temporary taking),
then, as of the date possession is taken by the condemning authority, the Base
Monthly Rent shall be reduced in the same proportion that the area of that part
of the Leased Premises so taken (less any addition to the area of the Leased
Premises by reason of any reconstruction) bears to the area of the Leased
Premises immediately prior to such taking.
11.7 Taking Defined. The term "taking" or "taken" as used in this Article 11
shall mean any transfer or conveyance of all or any portion of the Property to a
public or quasi-public agency or other entity having the power of eminent domain
pursuant to or as a result of the exercise of such power by such an agency,
including any inverse condemnation and/or any sale or transfer by Landlord of
all or any portion of the Property to such an agency under threat of
condemnation or the exercise of such power.
ARTICLE 12.
DEFAULT AND REMEDIES
12.1 Events Of Tenant's Default. Tenant shall be in default of its obligations
under this Lease if any of the following events occur:
(a) Tenant shall have failed to pay Base Monthly Rent or any Additional
Rent when due, which failure has continued for five days following written
notice from Landlord; or
(b) Tenant shall have failed to perform any term, covenant or condition of
this Lease (except those requiring the payment of Base Monthly Rent or
Additional Rent, which failures shall be governed by subparagraph (a) above)
within thirty (30) days after written notice from Landlord to Tenant specifying
the nature of such failure and requesting Tenant to perform same (provided that,
if longer than thirty days is reasonably required in order to perform such term,
covenant or condition, Tenant shall have such longer period provided that Tenant
has commenced to cure such failure and is diligently prosecuting such cure to
completion).
12.2 Landlord's Remedies. In the event of any default by Tenant, Landlord shall
have the following remedies, in addition to all other rights and remedies
provided by law or otherwise provided in this Lease, to which Landlord may
resort cumulatively, or in the alternative:
10.
(a) Landlord may, at Landlord's election, keep this Lease in effect and
enforce, by an action at law or in equity, all of its rights and remedies under
this Lease including, without limitation, (i) the right to recover the rent and
other sums as they become due by appropriate legal action, (ii) the right to
make payments required by Tenant, or perform Tenant's obligations and be
reimbursed by Tenant for the cost thereof with interest at the then maximum rate
of interest not prohibited by law from the date the sum is paid by Landlord
until Landlord is reimbursed by Tenant, and (iii) the remedies of injunctive
relief and specific performance to prevent Tenant from violating the terms of
this Lease and/or to compel Tenant to perform its obligations under this Lease,
as the case may be.
(b) Landlord may, at Landlord's election, terminate this Lease by giving
Tenant written notice of termination, in which event this Lease shall terminate
on the date set forth for termination in such notice. Any termination under this
subparagraph shall not relieve Tenant from its obligation to pay to Landlord all
Base Monthly Rent and Additional Rent then or thereafter due, or any other sums
due or thereafter accruing to Landlord, or from any claim against Tenant for
damages previously accrued or then or thereafter accruing. In no event shall any
one or more of the following actions by Landlord, in the absence of a written
election by Landlord to terminate this Lease constitute a termination of this
Lease:
(i) Appointment of a receiver or keeper in order to protect
Landlord's interest hereunder;
(ii) Consent to any subletting of the Leased Premises or assignment
of this Lease by Tenant, whether pursuant to the provisions hereof or otherwise;
or
(iii) Any reasonable action taken by Landlord or its partners,
principals, members, officers, agents, employees, or servants, which is intended
to mitigate the adverse effects of any breach of this Lease by Tenant,
including, without limitation, any action taken to maintain and preserve the
Leased Premises or any action taken to relet the Leased Premises or any portion
thereof for the account at Tenant and in the name of Tenant.
(c) In the event Landlord terminates this Lease, Landlord shall be
entitled, at Landlord's election, to the rights and remedies provided in
California Civil Code Section 1951.2, as in effect on the Effective Date of this
Lease. For purposes of computing damages pursuant to Section 1951.2, an interest
rate equal to the maximum rate of interest not prohibited by law shall be used
where permitted. Such damages shall include, without limitation:
(i) 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; and
(ii) Any other amount reasonably 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 without limitation, the following: (i)
expenses for cleaning, repairing or restoring the Leased Premises, (ii) broker's
fees allocable to the remainder of the term of this Lease, advertising costs and
other expenses of reletting the Leased Premises; (iii) expenses incurred in
removing, disposing of and/or storing any of Tenant's personal property,
inventory or trade fixtures remaining therein; (iv) reasonable attorney's fees,
expert witness fees, court costs and other reasonable expenses incurred by
Landlord (but not limited to taxable costs) in retaking possession of the Leased
Premises, establishing damages hereunder, and releasing the Leased Premises; and
(v) any other expenses, costs or damages otherwise reasonably incurred or
suffered as a result of Tenant's default.
12.3 Landlord's Default And Tenant's Remedies. Landlord shall not be in default
hereunder unless Landlord fails to perform obligations required of Landlord
within a reasonable time, but in no event later than thirty (30) days after
written notice by Tenant specifying wherein Landlord has failed to perform such
obligation; provided that if the nature of Landlord's obligation 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 pursues the same to completion. In the event of
Landlord's default, Tenant may then proceed in equity or at law to compel
Landlord to perform its obligations and/or to recover damages proximately caused
by such failure to perform (except as and to the extent Tenant has waived its
right to damages as provided in this Lease).
12.4 Tenant's Waiver. Landlord and Tenant agree that the provisions of
Paragraph 12.3 above are intended to supersede and replace the provisions of
California Civil Code Sections 1932(1), 1941 and 1942, and accordingly, Tenant
hereby waives the provisions of California Civil Code Sections 1932(1), 1941 and
1942 and/or 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.
ARTICLE 13.
GENERAL PROVISIONS
13.1 Taxes On Tenant's Property. Tenant shall pay before delinquency any and
all taxes, assessments, license fees, use fees, permit fees and public charges
of whatever nature or description levied, assessed or imposed against Tenant by
a governmental agency arising out of, caused by reason of or based upon Tenant's
estate in this Lease,
11.
Tenant's ownership of property, improvements made by Tenant to the Leased
Premises or the Outside Areas. If any such taxes, assessments, fees or public
charges are levied against Landlord, Landlord's property, the Building or the
Property, Landlord shall have the right to require Tenant to pay such taxes.
13.2 Holding Over. This Lease shall terminate without further notice on the
Lease Expiration Date (as set forth in Article 1). Any holding over by Tenant
after expiration of the Lease Term shall neither constitute a renewal nor
extension of this Lease nor give Tenant any rights in or to the Leased Premises
except as expressly provided in this Paragraph. Any such holding over to which
Landlord has consented shall be construed to be a tenancy from month to month,
on the same terms and conditions herein specified insofar as applicable.
13.3 Subordination To Mortgages. This Lease is subject to and subordinate to
all ground leases, mortgages and deeds of trust which affect the Building or the
Property and which are of public record as of the Effective Date of this Lease,
and to all renewals, modifications, consolidations, replacements and extensions
thereof. However, if the lessor under any such ground lease or any lender
holding any such mortgage or deed of trust shall advise Landlord that it desires
or requires this Lease to be made prior and superior thereto, then, upon written
request of Landlord to Tenant, Tenant shall promptly execute, acknowledge and
deliver any and all customary or reasonable documents or instruments which
Landlord and such lessor or lender deems necessary or desirable to make this
Lease prior thereto. Tenant hereby consents to Landlord's ground leasing the
land underlying the Building or the Property and/or encumbering the Building or
the Property as security for future loans on such terms as Landlord shall
desire, all of which future ground leases, mortgages or deeds of trust shall be
subject to and subordinate to this Lease. However, if any lessor under any such
future ground lease or any lender holding such future mortgage or deed of trust
shall desire or require that this Lease be made subject to and subordinate to
such future ground lease, mortgage or deed of trust, then Tenant agrees, within
ten days after Landlord's written request therefor, to execute, acknowledge and
deliver to Landlord any and all documents or instruments requested by Landlord
or by such lessor or lender as may be necessary or proper to assure the
subordination of this Lease to such future ground lease, mortgage or deed of
trust, but only if such lessor or lender agrees to recognize Tenant's rights
under this Lease and agrees not to disturb Tenant's quiet possession of the
Leased Premises so long as Tenant is not in default under this Lease. If
Landlord assigns the Lease as security for a loan, Tenant agrees to execute such
documents as are reasonably requested by the lender and to provide reasonable
provisions in the Lease protecting such lender's security interest which are
customarily required by institutional lenders making loans secured by a deed of
trust.
13.4 Tenant's Attornment Upon Foreclosure. Tenant shall, upon request, attorn
(i) to any purchaser of the Building or the Property at any foreclosure sale or
private sale conducted pursuant to any security instruments encumbering the
Building or the Property, (ii) to any grantee or transferee designated in any
deed given in lieu of foreclosure of any security interest encumbering the
Building or the Property, or (iii) to the lessor under an underlying ground
lease of the land underlying the Building or the Property, should such ground
lease be terminated; provided that such purchaser, grantee or lessor recognizes
Tenant's rights under this Lease.
13.5 Estoppel Certificate. Tenant will, following any request by Landlord,
promptly execute and deliver to Landlord an estoppel certificate (i) certifying
that this Lease is unmodified and in full force and effect, or, if modified,
stating the nature of such modification and certifying that this Lease, as so
modified, is in full force and effect, (ii) stating the date to which the rent
and other charges are paid in advance, if any, (iii) 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, and (iv) certifying
such other information about this Lease as may be reasonably requested by
Landlord, its Lender or prospective lenders, investors or purchasers of the
Building or the Property.
13.6 Transfer By Landlord. Landlord and its successors in interest shall have
the right to transfer their interest in the Building, the Property, or any
portion thereof at any time and to any person or entity. In the event of any
such transfer, the Landlord originally named herein (and in the case of any
subsequent transfer, the transferor), from the date of such transfer, (i) shall
be automatically relieved, without any further act by any person or entity, of
all liability for the performance of the obligations of the Landlord hereunder
which may accrue after the date of such transfer and (ii) shall be relieved of
all liability for the performance of the obligations of the Landlord hereunder
which have accrued before the date of transfer if its transferee agrees to
assume and perform all such prior obligations of the Landlord hereunder. Tenant
shall attorn to any such transferee. After the date of any such transfer, the
term "Landlord" as used herein shall mean the transferee of such interest in the
Building or the Property.
13.7 Force Majeure. The obligations of each of the parties under this Lease
(other than the obligations to pay money) shall be temporarily excused if such
party is prevented or delayed in performing such obligations by reason of any
strikes, lockouts or labor disputes; government restrictions, regulations,
controls, action or inaction; civil commotion; or extraordinary weather, fire or
other acts of God.
13.8 Notices. Any notice required or desired to be given by a party regarding
this Lease shall be in writing and shall be personally served, or in lieu of
personal service may be given by reputable overnight courier service, postage
prepaid, addressed to the other party as follows:
If to Landlord: X.X. Xxxxxx Company
X.X. Xxx 0000
00000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
12.
with a copy to: Sherwood and Xxxxxxxxx
Suite 240
11990 Xxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxx X. Xxxxxxxx
If to Tenant: Copper Mountain Networks, Inc.
0000 Xxxxxxxx Xxxxxx Xxxx.
Xxx Xxxxx, Xxxxxxxxxx
Attention: Xxxxxx Xxxxx
with a copy to: Xxxxxx Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx Wise
Any notice given in accordance with the foregoing shall be deemed received upon
actual receipt or refusal to accept delivery.
13.9 Attorneys' Fees. In the event any party shall bring any action,
arbitration proceeding or legal proceeding alleging a breach of any provision of
this Lease, to recover rent, to terminate this Lease, or to enforce, protect,
determine or establish any term or covenant of this Lease or rights or duties
hereunder of either party, the prevailing party shall be entitled to recover
from the non-prevailing party as a part of such action or proceeding, or in a
separate action for that purpose brought within one year from the determination
of such proceeding, reasonable attorneys' fees, expert witness fees, court costs
and other reasonable expenses incurred by the prevailing party.
13.10 Definitions. Any term that is given a special meaning by any provision in
this Lease shall, unless otherwise specifically stated, have such meaning
wherever used in this Lease or in any Addenda or amendment hereto. In addition
to the terms defined in Article 1, the following terms shall have the following
meanings:
(a) Real Property Taxes. The term "Real Property Tax" or "Real Property
Taxes" shall each 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 or new
construction), 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 for whatever reason
against the Property or any portion thereof, or Landlord's interest herein, or
the fixtures, equipment and other property of Landlord that is an integral part
of the Property and located thereon, or Landlord's business of owning, leasing
or managing the Property or the gross receipts, income or rentals from the
Property, and (ii) all charges, levies or fees imposed by any governmental
authority against Landlord by reason of or based upon the use of or number of
parking spaces within the Property, the amount of public services or public
utilities used or consumed (e.g. water, gas, electricity, sewage or waste water
disposal) at the Property, the number of person employed by tenants of the
Property, the size (whether measured in area, volume, number of tenants or
whatever) or the value of the Property, or the type of use or uses conducted
within the Property. If any Real Property Tax is partly based upon property or
rents unrelated to the Property, then only that part of such Real Property Tax
that is fairly allocable to the Property shall be included within the meaning of
the terms "Real Property Tax" or "Real Property Taxes." Notwithstanding the
foregoing, the terms "Real Property Tax" or "Real Property Taxes" shall not
include estate, inheritance, transfer, gift or franchise taxes of Landlord or
the federal or state income tax imposed on Landlord's income from all sources.
(b) Landlord's Insurance Costs. The term "Landlord's Insurance Costs"
shall mean the costs to Landlord to carry and maintain the policies of fire and
property damage insurance for the Building and the Property and general
liability and any other insurance required or permitted to be carried by
Landlord pursuant to Article 9.
(c) Property Maintenance Costs. The term "Property Maintenance Costs"
shall mean all costs and expenses (except Landlord's Insurance Costs and Real
Property Taxes) paid or incurred by Landlord in protecting, operating,
maintaining, repairing, replacing and preserving the Property and all parts
thereof, including without limitation, (i) professional management fees (not
exceeding 2 1/2 % of the amount of Base Monthly Rent, if such fees are paid to
Landlord or an affiliate or agent of Landlord, (ii) the amortizing portion of
any costs incurred by Landlord in the making of any modifications, alterations
or improvements required by any governmental authority as set forth in Article
6, which are so amortized during the Lease Term, and (iii) such other costs as
may be paid or incurred with respect to operating, maintaining, and preserving
the Property, such as repairing and painting the exterior surfaces, of the
Building, repairing, replacing, and resurfacing paved areas, repairing and
replacing structural parts of the Building, and repairing and replacing when
necessary, electrical, plumbing, heating, ventilating and air conditioning
systems serving the Building. Notwithstanding the foregoing, Property
Maintenance Costs shall not include the costs of environmental remediation or
costs attributable to the tenancy of others at the Property, or Landlord's
repair and maintenance obligations pursuant to paragraph 5.1(b). All capital
items determined in accordance with generally accepted accounting principles
(excluding in any case items which are Landlord's obligations under paragraph
5.1(b)), shall be amortized over their useful life and included as a Property
Operating Expense.
13.
(d) Property Operating Expenses. The term "Property Operating Expenses"
shall mean and include all Real Property Taxes, plus all Landlord's Insurance
Costs, plus all Property Maintenance Costs.
(e) Law. The term "Law" shall mean any judicial decisions and any
statute, constitution, ordinance, resolution, regulation, rule, administrative
order, or other requirements of any municipal, county, state, federal, or other
governmental agency or authority having jurisdiction over the parties to this
Lease, the Leased Premises, the Building or the Property, or any of them, in
effect either at the Effective Date of this Lease or at any time during the
Lease Term, including, without limitation, any regulation, order, or policy of
any quasi-official entity or body (e.g. a board of fire examiners or a public
utility or special district).
(F) Lender. The term "Lender" shall mean the holder of any promissory
note or other evidence of indebtedness secured by the Property or any portion
thereof.
(g) Private Restrictions. The term "Private Restrictions" shall mean (as
they may exist from time to time) any and all covenants, conditions and
restrictions, private agreements, easements, and any other recorded documents or
instruments affecting the use of the Property, the Building, the Leased
Premises, or the Outside Areas.
(h) Rent. The term "Rent" shall mean collectively Base Monthly Rent and
all Additional Rent.
13.11 General Waivers. 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. No waiver of any provision hereof, or
any waiver of any breach of any provision hereof, shall be effective unless in
writing and signed by the waiving party. The receipt by Landlord of any rent or
payment with or without knowledge of the breach of any other provision hereof
shall not be deemed a waiver of any such breach. No delay or omission in the
exercise of any right or remedy accruing to either party upon any breach by the
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 any other provisions
herein contained.
13.12 Miscellaneous. Should any provisions of this Lease prove to be invalid or
illegal, such invalidity or illegality shall in no way affect, impair or
invalidate any other provisions hereof, and such remaining provisions shall
remain in full force and effect. Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
factor. Any copy of this Lease which is executed by the parties shall be deemed
an original for all purposes. This Lease shall, subject to the provisions
regarding assignment, apply to and bind the respective heirs, successors,
executors, administrators and assigns of Landlord and Tenant. The term "party"
shall mean Landlord or Tenant as the context implies. If Tenant consists of more
than one person or entity, then all members of Tenant shall be jointly and
severally liable hereunder. This Lease shall be construed and enforced in
accordance with the Laws of the State in which the Leased Premises are located.
The captions in this Lease are for convenience only and shall not be construed
in the construction or interpretation of any provision hereof. When the context
of this Lease requires, the neuter gender includes the masculine, the feminine,
a partnership, corporation, limited liability company, joint venture, or other
form of business entity, and the singular includes the plural. The terms
"must,""shall," "will," and "agree" are mandatory. The term "may" is permissive.
When a party is required to do something by this Lease, it shall do so at its
sole cost and expense without right of reimbursement from the other party unless
specific provision is made therefor. Landlord and Tenant shall both be deemed to
have drafted this Lease, and the rule of construction that a document is to be
construed against the drafting party shall not be employed in the construction
or interpretation of this Lease.
ARTICLE 14.
CORPORATE AUTHORITY,
BROKERS AND ENTIRE AGREEMENT
14.1 Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of such corporation represents and warrants that
Tenant has the full right and legal authority to enter into this Lease, and that
he or she is duly authorized to execute and deliver this Lease on behalf of
Tenant in accordance with its terms.
14.2 Brokerage Commissions. Landlord and Tenant each represent, warrant and
agree that it has not had any dealings with any real estate broker(s), leasing
agent(s), finder(s) or salesmen, other than the Brokers (as named in Article 1)
with respect to the lease by it of the Leased Premises pursuant to this Lease,
and that it will indemnify, defend with competent counsel, and hold the other
harmless from any liability for the payment of any real estate brokerage
commissions, leasing commissions or finder's fees claimed by any other real
estate broker(s), leasing agent(s), finder(s), or salesmen to be earned or due
and payable by reason of its agreement or promise (implied or otherwise) to pay
such a commission or finder's fee by reason of its leasing the Leased Premises
pursuant to this Lease. Landlord agrees to assume all obligations and
responsibility with respect to payment of the Brokers and to indemnify, defend
and hold Tenant harmless therefrom. Landlord shall pay Broker a commission equal
to 3% of the Base Monthly Rent payable during the second, third and fourth year
of this Lease. Such commission shall be paid 50% upon execution of this Lease by
Landlord and Tenant and 50% upon the Lease Commencement Date. No further
commission shall be due as the result of any exercise of option rights by the
Tenant.
14.3 Entire Agreement. This Lease and the Exhibits (as described in Article
1), which Exhibits are by this reference incorporated herein, constitute the
entire agreement between the parties, and there are no other
14.
agreements, understandings or representations between the parties relating to
the lease by Landlord of the Leased Premises to Tenant, except as expressed
herein.
ARTICLE 15.
OPTIONS TO EXTEND
15.1 Subject to the condition set forth in clause (b) below, Tenant shall have
the option to extend the term of this Lease ("Extension Option") for a period of
two (2) years from the expiration of the fourth year of the Lease Term (the
"Extension Period"), subject to the following conditions:
(a) The Extension Option shall be exercised, if at all, by notice of
exercise given to Landlord by Tenant not less than nine (9) months prior to the
expiration of the fourth year of the Lease Term; and
(b) Tenant is not in material default under any of the terms, covenants or
conditions of this Lease, either at the time Tenant exercises the Extension
Option or on the commencement date of the Extension Period.
15.2 In the event the Extension Option is exercised in a timely fashion, the
Lease shall be extended for a period of two (2) years upon all of the terms and
conditions of this Lease, provided that the Base Monthly Rent for each extension
period shall be equal to ninety-five percent (95%) of the "Fair Market Rent" for
the Leased Premises. For purposes hereof, "Fair Market Rent" shall mean the Base
Monthly Rent determined pursuant to the process described below.
15.3 Within 15 days after receipt of Tenant's notice of exercise, Landlord
shall notify Tenant in writing of Landlord's estimate of the Base Monthly Rent
for the applicable extension period, based on the provisions of Paragraph 15.2
above. The parties shall have 15 days to meet and agree on the amount of Base
Monthly Rent. If the parties are unable to so agree within such period, Tenant
shall have the right either to (i) accept Landlord's statement of Base Monthly
Rent as the Base Monthly Rent for the applicable extension period; or (ii) elect
to arbitrate Landlord's estimate of Fair Market Rent, such arbitration to be
conducted pursuant to the provisions hereof. If Tenant elects arbitration, the
arbitration shall be concluded within 60 days after the date of Tenant's
election, subject to extension for an additional 30-day period if a third
arbitrator is required and does not act in a timely manner.
15.4 The parties shall each select a person to act as the arbitrator on its
behalf within fifteen days of delivery by Tenant to Landlord of its election to
arbitrate. Each arbitrator shall be qualified as a real estate appraiser with at
least ten years' experience and familiar with the Fair Market Rent of similar
industrial, research and development, or office space in the vicinity of the
Property used for a use similar to that of the Leased Premises. If either party
fails to notify the other of the appointment of its arbitrator, within or by the
time above specified, then the arbitrator appointed by the one party shall be
the arbitrator to determine the issue. In the event that two arbitrators are
chosen pursuant to Paragraph, the arbitrators so chosen shall, within 15 days
after the second arbitrator is appointed determine the Fair Market Rent. If the
two arbitrators shall be unable to agree upon a determination of Fair Market
Rent within such 15-day period, they, themselves, shall appoint a third
arbitrator, who shall be a competent and impartial person with qualifications
similar to those required of the first two arbitrators pursuant to. In the event
they are unable to agree upon such appointment within seven days after
expiration of such 15-day period, the third arbitrator shall be selected by the
parties themselves, if they can agree thereon, within a further period of 15
days. If the parties do not so agree, then either party, on behalf of both, may
request appointment of such a qualified person by the then American Arbitration
Association or any judge of the Superior Court of San Diego county, acting in
his or her private and not in his or her official capacity. The three
arbitrators shall determine the Fair Market Rent of the Leased Premises within
15 days after the appointment of the third arbitrator. Each party shall pay the
fee and expenses of its respective arbitrator and both shall share the fee and
expenses of the third arbitrator.
ARTICLE 16.
HAZARDOUS MATERIAL
16.1 Other then those listed on Exhibit B and reasonable amounts of those
materials commonly used for office and janitorial uses and petroleum products in
vehicles, all of which have been preapproved by Landlord, Tenant shall not cause
or permit any Hazardous Substances (as hereinafter defined) to be used, stored,
generated or disposed of on or in the Leased Premises or the Property by Tenant,
Tenant's agents, employees, contractors or invitees, without first obtaining
Landlord's written consent. If Hazardous Substances are used, stored, generated
or disposed of on or in the Leased Premises or the Property except as permitted
above, or if the Leased Premises or the Property become contaminated in any
manner for which Tenant is legally liable, Tenant shall indemnity and hold
harmless the Landlord from any and all claims, damages, fines, judgments,
penalties, costs, liabilities or losses (including without limitation, a
decrease in value of the Leased Premises and the Property, damages due to loss
or restriction of rentable or usable space, or any damages due to adverse impact
on marketing of the leased Premises and the Property, and any and all sums paid
for settlement of claims, attorneys fees, consultant and expert fees) arising as
a result of such contamination by Tenant. This indemnification includes without
limitation, any and all costs incurred due to any investigation of the site or
any cleanup, removal or restoration mandated by a federal, state or local agency
or political subdivision. Without limitation of the foregoing, if Tenant causes
or permits the presence of any Hazardous Substance on the Leased Premises or the
Property and such results in contamination, Tenant shall promptly, at its sole
expense, take any and all necessary actions required by any regulatory agency
having jurisdiction over the property to remediate the condition of the Leased
Premises and the Property. Tenant shall first obtain Landlord's written approval
for any such remedial action.
15.
16.2 As used herein the term "Hazardous Substance" means any substance which is
toxic, ignitible, reactive or corrosive and which is regulated by any local
government, the State of California or the United States government. "Hazardous
Substance" includes any and all material or substances which are defined as
"hazardous waste", "extremely hazardous waste" or a "hazardous substance"
pursuant to state, federal or local governmental law. "Hazardous Substance"
includes, but is not restricted to asbestos, polychlorobiphinyls ("PCB's") and
petroleum.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
respective dates below set forth with the intent to be legally bound thereby as
of the Effective Date of this Lease first above set forth.
LANDLORD:
X. X. Xxxxxx Co., a
California corporation
Dated: 8/13/97 By: /s/ SIGNATURE ILLEGIBLE
----------------- ----------------------------
Title: PRESIDENT
-------------------------
/s/ Xxxxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxxxx X. Xxxxxx, Trustee of the
Xxxxxx Family Revocable Trust
/s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx, Trustee of the
Xxxxxx Family Revocable Trust
/s/ Xxx X. Xxxxxxxx
-------------------------------
Xxx X. Xxxxxxxx, Trustee of the
Xxxxxx Family Revocable Trust
TENANT:
Copper Mountain Networks, Inc., a
California corporation
Dated: 8 - 12 - 97 By: Xxx Xxxxx
------------ ----------------------------
Title: V.P. Operations
-------------------------
16.
EXHIBIT A
SITE PLAN
[SITE PLAN APPEARS HERE]
EXHIBIT B
HAZARDOUS SUBSTANCES
NONE
18.
