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EXHIBIT 10.5
SUBLEASE
THIS SUBLEASE ("Sublease") is dated as of June 5, 1997, and is made by
and between AT HOME CORPORATION, a Delaware corporation ("Sublessor"), and
JUNIPER NETWORKS, INC., a California corporation ("Sublessee"). Sublessor and
Sublessee hereby agree as follows:
1. Recitals: This Sublease is made with reference to the fact that
Xxxxxxx Properties, L.P., a California limited partnership ("Master Lessor"), as
Landlord, and Sublessor, as Tenant, entered that certain Lease, dated as of
December 13, 1995 ("Master Lease"), with respect to that certain real property
commonly known as 000 Xxxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx ("Premises"),
as more particularly described in the Master Lease. A copy of the Master Lease
is attached hereto as Exhibit "A" and incorporated by reference herein.
2. Premises: Sublessor hereby subleases to Sublessee, and Sublessee
hereby subleases from Sublessor, the entire Premises, consisting of
approximately thirty-two thousand nine hundred eight (32,908) square feet
("Subleased Premises"), being a portion of that certain two (2)- building
project comprised of approximately sixty-six thousand eight hundred forty
(66,840) square feet and more commonly known as 000-000 Xxxxxxxxx Xxxxx,
Xxxxxxxx Xxxx, Xxxxxxxxxx ("Property"). The Subleased Premises and the Property
are more particularly described on Exhibit "B" attached hereto and incorporated
by reference herein.
3. Term:
A. Term. The term of this Sublease ("Term") shall be commence on
the later of (i) July 1, 1997; or (ii) the date that Sublessor delivers
possession of the Subleased Premises (excluding, if necessary, the Retained
Space, as defined in Paragraph 3.B. below) in the condition required by this
Sublease ("Commencement Date") and terminate on December 31, 2001 ("Termination
Date"), unless this Sublease is sooner terminated pursuant to its terms or the
Master Lease is sooner terminated pursuant to its terms. If Sublessor fails to
deliver the Subleased Premises (excluding the Retained Space) in the condition
required by this Sublease by September 1, 1997, Sublessee shall have the right
to terminate this Sublease, and Sublessor shall return to Sublessee all sums
paid by Sublessee to Sublessor in connection with its execution of this
Sublease.
B. Retained Space. Sublessor and Sublessee acknowledge that,
while Sublessor intends to vacate the Subleased Premises by June 30, 1997, it
may be necessary for Sublessor to retain possession of a portion of the
Subleased Premises after that date for the purpose of storing workstations and
similar personal property (collectively, "Personal Property"). Sublessor and
Sublessee agree that the following conditions shall govern any occupancy of the
Subleased Premises by Sublessor after June 30, 1997:
(i) Portion of Subleased Premises to be Retained.
Commencing on the Commencement Date, Sublessor shall be entitled to retain
possession of a portion of the Subleased
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Premises for the purpose of storing the Personal Property ("Retained Space").
Sublessor shall have the right to designate a reasonable amount of contiguous
square footage comprising the Retained Space, and Sublessee shall have the right
to designate the location of the Retained Space, which designation shall be
reasonable. During the period that Sublessor stores the Personal Property in the
Retained Space, Sublessor shall (i) keep the Retained Space in good condition
and repair, and surrender the Retained Space to Sublessee in "broom clean"
condition; and (ii) use reasonable good faith efforts to minimize any disruption
to or interference with Sublessee's use of or access to the remainder of the
Subleased Premises. Also during such period, Sublessee shall use reasonable good
faith efforts to minimize any disruption to or interference with Sublessor's use
of or access to the Retained Space. Sublessor shall vacate the Retained Space by
July 31, 1997.
(ii) Security Precautions. Sublessor and Sublessee
acknowledge that neither party will be responsible for erecting demising walls
separating the Retained Space from the remainder of the Subleased Premises, and
that neither the Retained Space nor the remainder of the Subleased Premises will
be securely demised. Sublessor and Sublessee shall abide by the reasonable
security precautions established by the other party, and neither party shall
enter the space of the other unless accompanied by an employee of the other.
Sublessor shall have the right to enter the Subleased Premises during normal
business hours to the extent necessary for access to and from the Retained
Space.
C. No Option to Extend. The parties acknowledge that Sublessee
has no option to extend the Term of this Sublease.
D. Early Access. Provided that Sublessee does not materially
interfere with the conduct of Sublessor's business on the Subleased Premises,
Sublessee shall have the right to enter the Subleased Premises for the two (2)-
week period immediately prior to the Commencement Date for the purpose of
preparing the Subleased Premises for Sublessee's occupancy. Sublessee shall not
be liable for the payment of Monthly Base Rent or Additional Rent during the
early access period, but all other terms and conditions of this Sublease shall
apply.
4. Rent:
A. Monthly Base Rent. Except as otherwise provided herein,
Sublessee shall pay to Sublessor as monthly base rent ("Monthly Base Rent") for
the Subleased Premises equal monthly installments as follows:
Months Rent/S.F./Month Rent/Month
------ --------------- ----------
01 - 12 $1.65 $54,298.20
13 - 24 $1.70 $55,943.60
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25 - 36 $1.75 $57,589.00
37 - 48 $1.80 $59,234.40
49 - ex- $1.85 $60,879.80
piration
As used herein, the word "month" shall mean a period beginning on the first
(1st) day of a month and ending on the last day of that month. Monthly Base Rent
shall be paid on or before the first (1st) day of each month. Rent (as defined
in Paragraph 4.B. below) for any period during the term hereof which is for less
than one month of the Term shall be a prorata portion of the monthly installment
based on a thirty (30)-day month. Except as otherwise provided herein, Rent
shall be payable without notice or demand and without any deduction, offset, or
abatement, in lawful money of the United States of America. Rent shall be paid
directly to Sublessor at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, or such
other address as may be designated in writing by Sublessor.
B. Additional Rent. All monies required to be paid by Sublessee
under this Sublease (excluding Monthly Base Rent pursuant to Paragraph 4.A),
including any amounts payable by Sublessor to Master Lessor under the Master
Lease (including, without limitation, Basic Operating Costs, as defined in
Section 7 of the Master Lease), shall be deemed additional rent ("Additional
Rent"). Monthly Base Rent and Additional Rent hereinafter collectively shall be
referred to as "Rent." Sublessee and Sublessor agree, as a material part of the
consideration given by Sublessee to Sublessor for this Sublease, that, with
respect to the period arising from and after the Commencement Date, Sublessee
shall pay all costs, expenses, taxes, insurance, maintenance and other charges
of every kind and nature arising in connection with the Sublease, the Master
Lease or the Subleased Premises, such that Sublessor shall receive, as a net
consideration for this Sublease, the Monthly Base Rent payable under Paragraph
4. A. hereof; provided, however, that all such costs, expenses, taxes,
insurance, maintenance and other charges shall be equitably prorated to reflect
the Commencement Date and the Termination Date of this Sublease. In no event
shall Sublessee's obligation to pay for the foregoing charges exceed the amount
attributable to the Subleased Premises, subject, however, to Sublessor's
obligations hereunder with respect to the Retained Space. Sublessee shall be
entitled to all credits, if any, given by Master Lessor to Sublessor for
Sublessor's overpayment of any of the foregoing charges.
C. Payment of First Month's Rent. Upon execution hereof by
Sublessee, Sublessee shall pay to Sublessor the sum of Fifty-Four Thousand Two
Hundred Ninety-Eight and 20/100 Dollars ($54,298.20), which shall constitute
Monthly Base Rent for the first month of the Term. If the Commencement Date
falls on a day other than the first day of a calendar month, any excess
attributable to the first month of the Term shall be credited to Monthly Base
Rent for the second month of the Term.
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5. Security Deposit: Upon execution hereof, Sublessee shall deposit with
Sublessor, in cash, the sum of Sixty Thousand Eight Hundred Eighty and No/100
Dollars ($60,880.00), as security for the performance by Sublessee of the terms
and conditions of this Sublease. If Sublessee fails to pay Rent or other charges
due hereunder (beyond applicable notice and cure periods) or otherwise defaults
(beyond applicable notice and cure periods) with respect to any provision of
this Sublease, then Sublessor may draw upon, use, apply or retain all or any
portion of the security deposit for the payment of any Rent or other charge in
default, for the payment of any other sum which Sublessor has become obligated
to pay by reason of Sublessee's default, or to compensate Sublessor for any loss
or damage which Sublessor has suffered thereby. If Sublessor so uses or applies
all or any portion of the security deposit, then Sublessee shall, within ten
(10) days after demand therefor, deposit cash with Sublessor in the amount
required to restore the deposit to the full amount stated above. Upon the
expiration or earlier termination of this Sublease, Sublessor shall return to
Sublessee (without interest) so much of the security deposit as has not been
applied by Sublessor pursuant to this Paragraph, or which is not otherwise
required to cure Sublessee's defaults.
6. Late Charge: If Sublessee fails to pay Sublessor any amount due
hereunder on or before the date when such payment is due, Sublessee shall pay to
Sublessor upon demand a late charge equal to five percent (5%) of the delinquent
amount, pursuant to the provisions of Section 26.D of the Master Lease. The
parties agree that the foregoing late charge represents a reasonable estimate of
the cost and expense which Sublessor will incur in processing each delinquent
payment. Sublessor's acceptance of any interest or late charge shall not waive
Sublessee's default in failing to pay the delinquent amount. Sublessor and
Sublessee acknowledge that Rent is due and payable to Sublessor not later than
three (3) days prior to the first day of each calendar month during the Term,
and that Sublessee's failure to pay Rent by such date shall subject Sublessee to
payment of the aforementioned late charge.
7. Repairs: Sublessor shall deliver the Subleased Premises to Sublessee
in "broom clean" condition. Except as set forth in this Paragraph and in
Paragraph 14 below, Sublessor shall have no obligation whatsoever to make or pay
the cost of any alterations, improvements or repairs to the Subleased Premises,
including, without limitation. any improvement or repair required to comply with
any law, regulation, building code or ordinance (including, without limitation,
the Americans With Disabilities Act of 1990 ("ADA"), except as provided in
Addendum Paragraph 4 of the Master Lease for the period commencing with the
Commencement Date of the Master Lease and ending with the day prior to the
Commencement Date of this Sublease, any violation of which shall be Sublessor's
obligation, which violation Sublessor shall cure at Sublessor's expense within a
reasonable period after receipt of written notice of same from Sublessee. Except
to the extent caused by the negligence or willful misconduct of Sublessor, its
agents, employees, contractors or invitees, for which Sublessor shall be
responsible, at no cost to Sublessee, for the performance of any repairs
required as a result thereof, Sublessee shall look solely to Master Lessor for
performance of any repairs required to be performed by Master Lessor under the
terms of the Master Lease; provided, however, that if Master Lessor shall fail
to perform any of its obligations
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in accordance with the terms of the Master Lease (including, without limitation,
the failure to make required repairs), Sublessor, upon receipt of written notice
from Sublessee, shall diligently attempt to enforce all obligations of Master
Lessor under the Master Lease (without requiring Sublessor to spend more than a
nominal sum, which nominal sum shall be limited to all costs associated with the
preparation of and transmittal to Master Lessor of documentation from Sublessor
or Sublessor's attorneys detailing the obligations to be performed by Master
Lessor under the Master Lease). If, after receipt of written request from
Sublessee, Sublessor shall fail or refuse to take action for the enforcement of
Sublessor's rights against Master Lessor with respect to the Subleased Premises
("Action"), Sublessee shall have the right to take such Action in its own name,
and for that purpose and only to such extent, all of the rights of Sublessor as
Tenant under the Master Lease hereby are conferred upon and assigned to
Sublessee, and Sublessee hereby is subrogated to such rights to the extent that
the same shall apply to the Subleased Premises. If any such Action against
Master Lessor in Sublessee's name shall be barred by reason of lack of privity,
nonassignability or otherwise, Sublessee may take such Action in Sublessor's
name; provided that Sublessee has obtained the prior written consent of
Sublessor, which consent shall not be unreasonably withheld, and, provided
further, that Sublessee shall indemnify, protect, defend by counsel reasonably
satisfactory to Sublessor and hold Sublessor harmless from and against any and
all liability, loss, claims, demands, suits, penalties or damage (including,
without being limited to, reasonable attorneys' fees and expenses) which
Sublessor may incur or suffer by reason of such Action, except for any such
liability, loss, claims, demands, suits, penalties or damage which Sublessor may
incur or suffer by reason of Sublessor's negligent acts or omissions.
8. Indemnity:
A. Sublessee's Indemnity. Except to the extent caused by
Sublessor's negligence or willful misconduct during the period that Sublessor
occupies the Retained Space, and except to the extent caused by Sublessor's sole
active negligence or willful misconduct at any time after Sublessor has vacated
the Retained Space, Sublessee shall indemnify, protect, defend with counsel
reasonably acceptable to Sublessor and hold Sublessor harmless against any and
all claims, liabilities, judgments, causes of action, damages, costs, and
expenses (including reasonable attorneys' and experts' fees), caused by or
arising in connection with: (i) the use, occupancy or condition of the Subleased
Premises; (ii) the negligence or willful misconduct of Sublessee or its
employees, contractors, agents or invitees; (iii) a breach of Sublessee's
obligations under this Sublease; or (iv) a breach of Sublessee's obligations
under the Master Lease to the extent incorporated herein by this Sublease.
B. Sublessor's Indemnity. Except to the extent caused by
Sublessee's negligence or willful misconduct, Sublessor shall indemnify,
protect, defend with counsel reasonably acceptable to Sublessor and hold
Sublessor harmless against any and all claims, liabilities, judgments, causes of
action, damages, costs, and expenses (including reasonable attorneys' and
experts' fees), caused by or arising in connection with: (i) a breach of
Sublessor's obligations under this Sublease; or (ii) a breach of Sublessor's
obligations as Tenant under the Master Lease to the
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extent those obligations are not the obligations of Sublessee under this
Sublease; or (iii) the sole active negligence or willful misconduct of
Sublessor, its employees, contractors, agents or invitees occurring on or about
the Subleased Premises.
9. Right to Cure Defaults:
A. Sublessor's Right. If Sublessee fails to pay any sum of money
to Sublessor (beyond applicable notice and cure periods), or fails to perform
(beyond applicable notice and cure periods) any other act on its part to be
performed hereunder, then Sublessor may, but shall not be obligated to, make
such payment or perform such act. All such sums paid, and all costs and expenses
of performing any such act, shall be deemed Additional Rent payable by Sublessee
to Sublessor upon demand. In addition, Sublessee shall pay to Sublessor interest
on all amounts due, at the rate of twelve percent (12%) per annum or the maximum
rate allowed by law, whichever is less (the "Interest Rate"), from the due date
to and including the date of the payment, from the date of the expenditure until
repaid.
B. Sublessee's Right. If Sublessor fails to perform any act on
its part to be performed hereunder within a reasonable time after its receipt of
written request from Sublessee, but in no event longer than thirty (30) days
after Sublessor's receipt of such request (except that if such default cannot be
cured within said thirty (30)-day period, this period shall be extended for an
additional reasonable time, provided that Sublessor commences to cure such
default within such thirty (30)-day period and proceeds diligently thereafter to
effect such cure as quickly as possible), then Sublessee shall be entitled, at
Sublessee's sole option, to cure such default. Nothing in the foregoing sentence
shall be deemed to waive any rights Sublessee may have at law or in equity in
the event of such default by Sublessor.
10. Assignment and Subletting: Except in accordance with the terms of
Section 21 of the Master Lease, Sublessee may not assign this Sublease, sublet
the Subleased Premises, transfer any interest of Sublessee therein, or permit
any use of the Subleased Premises by another parry ("Transfer"), without the
prior written consent of Sublessor, which shall not be unreasonably withheld,
and Master Lessor. A consent to one Transfer shall not be deemed to be a consent
to any subsequent Transfer. Any Transfer without such consent shall be void and
shall, at the option of Sublessor, terminate this Sublease. As a condition of
granting its consent to any assignment or subletting, Sublessor may require that
Sublessee pay to Sublessor, as Additional Rent, fifty percent (50%) of all
Excess Rents received by Sublessee. As used herein, the term "Excess Rents"
shall mean all Rents and other consideration payable by a subtenant or assignee
to Sublessee in connection with the Transfer, less the cost incurred by
Sublessee as set forth in Addendum Paragraph 14 of the Master Lease. Sublessor's
waiver or consent to any assignment or subletting shall be ineffective unless
set forth in writing, and Sublessee shall not be relieved from any of its
obligations under this Sublease, unless the consent expressly so provides.
Notwithstanding anything to the contrary contained in this Sublease or in the
Master Lease, at Sublessor's sole option, Sublessor shall have the right to
terminate this Sublease if Sublessee requests Sublessor's
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consent to an assignment of this Sublease or a sublet of fifty percent (50%) or
more of the square footage comprising the Subleased Premises.
11. Use: Sublessee may use the Subleased Premises only for the uses set
forth in the Basic Lease Information and in Section 4 of the Master Lease and
for no other purpose. With respect to Hazardous Materials as defined in the
Master Lease, Sublessee shall comply with the provisions of Section 4.B and
Addendum Paragraph 6.A of the Master Lease. Within twenty (20) days after
receipt of demand from Sublessor, Sublessee shall pay to Sublessor all taxes or
charges imposed by applicable governmental authorities against the Subleased
Premises or Sublessor (including, without limitation, assessments imposed as a
consequence of the storage, use, release or disposal of Hazardous Materials by
Sublessee in or about the Subleased Premises). Sublessee shall not do or permit
anything to be done in or about the Subleased Premises which would (i) injure
the Subleased Premises, or (ii) impair the efficient operation of the Subleased
Premises or the sprinkler systems, heating ventilating or air conditioning
equipment, or utilities systems located therein. Sublessee shall not store any
materials, supplies, finished or unfinished products, or articles of any nature
outside of the Subleased Premises. For purposes of this Sublease and Sections 4
and 5 of the Master Lease, Sublessee shall comply with all reasonable rules and
regulations promulgated from time to time by Master Lessor. Sublessor shall have
no right to promulgate any such rules and regulations.
12. Effect of Conveyance: As used in this Sublease, the term "Sublessor"
means the holder of the lessee's interest under the Master Lease. In the event
of any transfer of said lessee's interest, Sublessor shall be and hereby is
entirely relieved of all covenants and obligations of Sublessor hereunder first
accruing from and after the date of such transfer, and it shall be deemed and
construed, without further agreement between the parties, that the transferee
has assumed and shall carry out all covenants and obligations thereafter to be
performed by Sublessor hereunder. Sublessor shall transfer and deliver any
security of Sublessee to the transferee of said lessee's interest in the Master
Lease, and only thereupon shall Sublessor be discharged from any further
liability with respect thereto.
13. Acceptance: By taking possession of the Subleased Premises,
Sublessee shall conclusively be deemed to have accepted the Subleased Premises
in their as-is, then-existing condition, except as otherwise set forth in
Paragraphs 3 and 14 hereof.
14. Improvements: No alterations or improvements shall be made to the
Subleased Premises, except in accordance with this Sublease and the Master
Lease, and with the prior written consent, when required, of both Master Lessor
and Sublessor. Sublessor shall not be required to provide a tenant improvement
allowance to Sublessee in connection with Sublessee's construction of any
improvements to the Subleased Premises. Sublessor shall use reasonable efforts,
however, to cooperate with Sublessee to obtain Master Lessor's consent to
Sublessee's proposed alterations to the Subleased Premises, including the
removal of certain perimeter offices and creation of an assembly area.
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15. Limitation of Liability: Except to the extent of the negligence or
willful misconduct of Sublessor, its agents, employees, contractors or invitees
during the period that Sublessor occupies the Retained Space, and except to the
extent of the sole active negligence or willful misconduct of Sublessor, its
agents, employees, contractors or invitees at any time after Sublessor has
vacated the Retained Space, Sublessor shall not be liable to Sublessee for: (i)
failure or interruption of any utility system or service, or (ii) failure of
Master Lessor to maintain the Subleased Premises as may be required under the
Master Lease. In no event shall Sublessee be entitled to terminate this Sublease
except as otherwise expressly provided in this Sublease. In the event that
Sublessor is entitled to an abatement of rent under the terms of the Master
Lease, Sublessee shall be entitled to a proportionate share of abatement of Rent
under this Sublease. Sublessor and Sublessee are corporations, and the
obligations of Sublessor and Sublessee hereunder shall not constitute the
personal obligations of the officers, directors, trustees, partners, joint
venturers, members, owners, stockholders or other principals or representatives
of the corporations.
16. Default: Sublessee shall be in material default of its obligations
under this Sublease if Sublessee is responsible for the occurrence of any of the
events of default set forth in Section 26.A of the Master Lease.
17. Remedies: In the event of any default by Sublessee under this
Sublease (including, without limitation, a default pursuant to Section 26.A of
the Master Lease), Sublessor shall have all remedies provided by applicable law,
including, without limitation, all rights pursuant to Section 26.B of the Master
Lease and under California Civil Code Sections 1951.2 and 1951.4. Sublessor may
resort to its remedies cumulatively or in the alternative.
18. Surrender: On or before the expiration of this Sublease, Sublessee
shall remove all of its trade fixtures and shall surrender the Subleased
Premises to Sublessor in the condition received from Sublessor, casualty,
condemnation, Hazardous Materials not stored, used released or disposed of by
Sublessee or its agents, employees, contractors or invitees, alterations with
respect to which Sublessor or Master Lessor have not required removal and
reasonable wear and tear excepted. If the Subleased Premises are not so
surrendered, then Sublessee shall be liable to Sublessor for all costs incurred
by Sublessor in returning the Subleased Premises to the required condition, plus
interest thereon at the Interest Rate. Sublessee shall indemnify, defend with
counsel reasonably acceptable to Sublessor, protect and hold harmless Sublessor
against any and all claims, liabilities, judgments, causes of action, damages,
costs, and expenses (including attorneys' and experts' fees) resulting from
Sublessee's delay in surrendering the Subleased Premises in the condition
required.
19. Estoppel Certificates: Within ten (10) days after demand by
Sublessor, Sublessee shall execute and deliver to Sublessor an estoppel
certificate (i) certifying that this Sublease is unmodified and in full force
and effect or, if modified, the nature of such modification; (ii) stating the
date to which Rent and other charges are paid in advance; (iii) acknowledging
that there are no
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uncured defaults, or the nature of any such uncured defaults, on the part of the
Sublessor; and (iv) certifying such other information as may be required by
Sublessor.
20. Broker: Sublessor and Sublessee each represent to the other that
they have dealt with no real estate brokers, finders, agents or salesmen other
than Colliers Xxxxxxx International, Inc., representing both Sublessor and
Sublessee in connection with this transaction. Each party agrees to hold the
other party harmless from and against all claims for brokerage commissions,
finder's fees, or other compensation made by any other agent, broker, salesman
or finder as a consequence of said party's actions or dealings with such agent,
broker, salesman, or finder.
21. Notices: Unless five (5) days' prior written notice is given in the
manner set forth in this Paragraph, the address of each party for all purposes
connected with this Sublease shall be that address set forth below their
signatures at the end of this Sublease. The address for Master Lessor shall be
as set forth in the Master Lease. All notices, demands, or communications in
connection with this Sublease shall be considered received when (i) personally
delivered; or (ii) if properly addressed and either sent by nationally
recognized overnight courier or deposited in the mail (registered or certified,
return receipt requested, and, postage prepaid), on the date shown on the return
receipt for acceptance or rejection. All notices given to the Master Lessor
under the Master Lease shall be considered received only when delivered in
accordance with the Master Lease to all parties hereto at the address set forth
below their signatures at the end of this Sublease.
22. Severability: If any term of this Sublease is held to be invalid or
unenforceable by any court of competent jurisdiction, then the remainder of this
Sublease shall remain in full force and effect to the fullest extent possible
under the law, and shall not be affected or impaired.
23. Amendment: This Sublease may not be amended except by the written
agreement of all parties hereto.
24. Attorneys' Fees: If either party brings any action or legal
proceeding with respect to this Sublease, the prevailing party shall be entitled
to recover reasonable attorneys' fees, experts' fees, and court costs.
Notwithstanding the foregoing and in addition thereto, Sublessor, upon written
request to Sublessee, shall be entitled to prompt receipt from Sublessee, for
each breach hereof, of such reasonable attorneys' fees (but not less than Fifty
Dollars ($50.00)), as may be incurred in connection with each notice or demand
delivered to Sublessee. Sublessee agrees that such sum constitutes reimbursement
to Sublessor of the reasonable cost of the preparation and delivery of each
notice caused by Sublessee's breach.
25. Other Sublease Terms:
A. Incorporation By Reference. The terms and conditions of this
Sublease shall include various Sections of the Master Lease, which, except to
the extent such terms are in conflict
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with any of the other terms of this Sublease (in which event the other terms of
this Sublease shall control), are incorporated into this Sublease as if fully
set forth, except that: (i) each reference in such incorporated Sections to
"Lease" shall be deemed a reference to "Sublease"; (ii) each reference to the
"Premises" shall be deemed a reference to the "Subleased Premises"; (iii) each
reference to "Landlord" and "Tenant" shall be deemed a reference to "Sublessor"
and "Sublessee", respectively (except as otherwise expressly set forth below);
(iv) with respect to work, services, repairs, restoration, provision of
insurance or the performance of any other obligation of Master Lessor under the
Master Lease, the sole obligation of Sublessor shall be as set forth in
Paragraph 7 hereof; (v) with respect to any obligation of Sublessee to be
performed under this Sublease, wherever the Master Lease grants to Sublessor a
specified number of days to perform its obligations under the Lease, Sublessee
shall have three (3) fewer days to perform the obligation, including, without
limitation, curing any defaults, except as otherwise expressly set forth in this
Sublease; and (vi) with respect to any approval required to be obtained from the
"Landlord" under the Master Lease, such consent must be obtained from both the
Master Lessor and the Sublessor, and the approval of Sublessor may be withheld
if, despite Sublessor's reasonable efforts, the Master Lessor's consent is not
obtained.
The following Sections of the Master Lease are hereby incorporated into
this Sublease:
Basic Lease Information Sections Project Description, Building
Description, Premises, Permitted Use, Occupancy Density and Tenant's
Proportionate Share;
Section 2.A, except that the first and second sentences of Section 2.A
hereby are deleted;
Sections 4 and 5;
Section 7, except that all references to "Landlord" in Sections 7.A.,
B., D., E. and in the last full paragraph of Section 7 shall mean only Master
Lessor;
Sections 8.A and 8.B., except that references to "Landlord" in Section
8.A shall mean only Master Lessor;
Section 9;
Section 10, except that references to "Landlord" in Section 10 shall
mean only Master Lessor;
Sections 12 through 18;
Sections 21 through 23;
Section 24, except that (i) references to "Landlord" in the second
sentence of Section 24.A
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and in Sections 24.B through E shall mean only Master Lessor; and (ii) with
respect to "Tenant's" right to terminate under Section 24.C, Sublessee shall not
exercise such right without the prior written consent of Sublessor, which shall
not be unreasonably withheld or delayed;
Sections 25 through 31;
Sections 32, except that the addresses for notices to Sublessor and
Sublessee shall be as set forth beneath the signature lines in this Sublease;
Sections 33 and 34;
Section 35, except that this provision shall not be applicable to
Sublessee's obligation to pay Rent hereunder;
Sections 36 and 37;
Additional Paragraphs 39 and 40;
Addendum Paragraphs 2, 4, 6, 7, 8 and 9 (except that references to
"Landlord" in Sections 2, 4. 6.B., 7, 8 and 9 shall mean only Master Lessor), 10
(except that references to "Landlord" shall mean only Master Lessor), 11 (except
that the reference to "Landlord's property insurance policy" in line 4 of this
paragraph shall mean only Master Lessor), 12, 14, 15, and 16; and
Exhibits A, B and C.
B. Sublessee's Obligations: This Sublease is and all times shall
be subject and subordinate to the Master Lease and the rights of Master Lessor
thereunder. Sublessee hereby expressly agrees: (i) to comply with all provisions
of the Master Lease incorporated by reference herein, except to the extent
inconsistent with the terms of this Sublease; (ii) to perform all the
obligations on the part of the "Tenant" to be performed under the terms of the
Master Lease during the term of this Sublease incorporated by reference herein.
except to the extent inconsistent with the terms of this Sublease; and (iii) to
hold Sublessor free and harmless of and from all liability, judgments, costs,
damages, claims, demands, and expenses (including reasonable attorneys' and
experts' fees) arising out of Sublessee's failure to comply with or to perform
Sublessee's obligations hereunder or the obligations of the "Tenant" under the
Master Lease as herein provided or to act or omit to act in any manner which
will constitute a breach of the Master Lease.
26. Condition Precedent: This Sublease and Sublessor's and Sublessee's
obligations hereunder are conditioned upon having obtained the written consent
of the Master Lessor. If Sublessor has not obtained Master Lessor's consent
within forty-five (45) days after the date of Sublessor's execution of this
Sublease, either party may terminate this Sublease, and Sublessor
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shall return to Sublessee all sums paid by Sublessee to Sublessor in connection
with its execution of this Sublease. Sublessor shall use reasonable efforts to
obtain Master Lessor's consent within the time period set forth herein.
27. Parking: Sublessee shall have the right to the non-exclusive use of
one hundred thirty-eight (138) Property parking spaces in the common area
surrounding the Subleased Premises; provided, however, that during any period of
shared occupancy pursuant to Paragraph 3.B, Sublessor and Sublessee shall share
such parking on the basis that is proportionate to the square footage of the
Subleased Premises that each party then is occupying.
28. Signage: Sublessee may erect signs on the Subleased Premises
conforming to all legal requirements with the prior written approval of
Sublessor, which approval shall not be unreasonably withheld, subject to the
provisions of Section 13 of the Master Lease. Upon termination of the Sublease,
Sublessee shall remove all signage and repair all damage caused by the removal.
29. Board Approval: Sublessee represents and warrants to Sublessor that
Sublessee's Board of Directors has reviewed and approved the Master Lease and
this Sublease, and has authorized Sublessee's execution hereof.
30. Sublessor's Representations and Warranties: To the best of
Sublessor's knowledge, Sublessor represents and warrants with respect to the
Subleased Premises that:
A. The copy of the Master Lease attached hereto is a true and
correct copy thereof.
B. Sublessor has not previously subleased or otherwise
transferred any interest in the Subleased Premises.
C. Sublessor has not previously provided the Master Lessor with
any notice of default
D. The Master Lease is in full force and effect, and there exists
under the Master Lease no default or event of default by either Master Lessor or
Sublessor, nor has there occurred any event which, with the giving of notice or
passage of time or both, could constitute such a default or event of default.
E. There are no pending or threatened actions, suits or
proceedings before any court or administrative agency against Sublessor or
against Master Lessor or third parties which could, in the aggregate, adversely
affect the Subleased Premises or any part thereof or the ability of Master
Lessor to perform its obligations under the Master Lease or of Sublessor to
perform its obligations under this Sublease, and Sublessor is not aware of any
facts which might result in any such actions, suits or proceedings.
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31. Sublessor's Obligations. Sublessor shall perform all of its
obligations under the Master Lease to the extent that Sublessee has not agreed
to perform such obligations under this Sublease.
32. Amendment or Modification of Master Lease: This Sublease shall be
subject to, and Sublessee accepts this Sublease subject to, any amendments,
modifications or supplements to the Master Lease hereafter made, provided that
Sublessor shall not enter any amendment, modification or supplement that would
materially adversely affect the use by Sublessee of the Subleased Premises in
accordance with the terms hereof, increase the obligations of Sublessee or
decrease its rights hereunder, lengthen the Term or increase the Rent required
to be paid by Sublessee hereunder. Sublessor shall provide written notice to
Sublessee of any permitted amendment, modification or supplement to the Master
Lease.
33. Notice Received from Master Lessor. Sublessor shall promptly deliver
to Sublessee by facsimile, if possible, copies of any notices of default
received from Master Lessor.
34. Termination: Sublessor shall not voluntarily terminate the Master
Lease during the Term unless and until the Master Lessor has agreed in writing
to (i) release Sublessor from all obligations and liabilities under the Master
Lease; and (ii) continue this Sublease in full force and effect as a direct
lease between Master Lessor and Sublessee upon and subject to all of the terms,
covenants and conditions of this Sublease for the balance of the Term hereof. If
Master Lessor so consents, Sublessee shall attorn to Master Lessor in connection
with any such voluntary termination and shall execute an attornment agreement in
such form as may reasonably be requested by Master Lessor.
35. Assignment of Indemnities: To the extent assignable, Sublessor shall
assign to Sublessee any warranties given and indemnities made by Master Lessor
under the Master Lease.
36. Insurance: With respect to the insurance Sublessee will carry for
the Subleased Premises, Sublessee shall have the option to (i) increase the fire
legal liability coverage it otherwise is required to carry hereunder, and (ii)
increase its overall liability limits coverage from One Million Dollars
($1,000,000.00) to Two Million Dollars ($2,000,000.00), and Sublessor shall
reimburse Sublessee for the cost thereof on a yearly basis, in an amount not to
exceed Two Thousand Five Hundred Dollars ($2,500.00) per year, within thirty
(30) days after receipt of the insurance company's invoice therefor.
37. Surrender Obligation:
A. Mater Lease Restoration Obligation. Notwithstanding anything to the
contrary contained in this Sublease or the Master Lease, if, upon the expiration
or earlier termination of this Sublease, Master Lessor requires that the
Subleased Premises be restored to its condition as of the Commencement Date of
the Master Lease, Sublessee shall be responsible for the performance
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of and payment of the costs of such restoration, unless it is determined by the
parties that Sublessor has not fully disclosed to Sublessee all of the
alterations constructed by Sublessor in the Subleased Premises prior to the
Commencement Date of this Sublease, in which case Sublessor shall be responsible
for reimbursing Sublessee for the cost of the restoration related to such
undisclosed alterations (unless Master Lessor does not require their
restoration). For purposes of establishing the foregoing exception to
Sublessee's performance and payment obligations upon surrender, attached hereto
and incorporated by reference herein are Exhibit C, a floor plan showing the
interior of the Subleased Premises as of the date that Sublessor executed the
Master Lease, and Exhibit D, showing the interior layout of the Subleased
Premises as of the date of execution by Sublessor and Sublessee of this
Sublease. These Exhibits shall be used as a historical reference for purposes of
demonstrating the alterations that Sublessor constructed within the Subleased
Premises prior to the Commencement Date of this Sublease. Sublessee's
performance and payment obligations with respect to the restoration and the
exception thereto hereinafter shall be referred to as the "Master Lease
Restoration Obligations".
B. Obligation if Sublease Extended. Notwithstanding the foregoing, if
Sublessor properly exercises its option to extend the term of the Master Lease
for an additional three (3) years, and Sublessee and Sublessor concurrently
enter an agreement permitting Sublessee to sublease the Subleased Premises for
the additional three (3)- year period (notwithstanding the provisions of
Paragraph 3.C. above), upon the expiration or earlier termination of the
extended Sublease term, Sublessee shall be responsible for the Master Lease
Restoration Obligations.
C. Obligation if Sublease Not Extended. Notwithstanding the foregoing,
if Sublessor properly exercises its option to extend the term of the Master
Lease for an additional three (3)- year period, and, upon the expiration of the
Term of this Sublease, either Sublessor will reoccupy the Subleased Premises or
Sublessor will sublease the Subleased Premises to any person or entity other
than Sublessee, Sublessee shall not be responsible for the Master Lease
Restoration Obligations, but Sublessee shall be responsible for the performance
of and the payment of the cost of restoring the Subleased Premises to the
condition required by Paragraph 18 of this Sublease, as evidenced by Exhibit D.
D. Notice. If Master Lessor notifies Sublessor, rather than notifying
Sublessee directly, regarding the work constituting the Master Lease Restoration
Obligations, Sublessor promptly shall notify Sublessee of such obligations, and
Sublessee promptly shall comply with Master Lessor's directive.
[SIGNATURES ON NEXT PAGE)
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IN WITNESS WHEREOF, the parties have executed this Sublease as of the
day and year first above written.
SUBLESSEE: SUBLESSOR:
JUNIPER NETWORKS, INC., AT HOME CORPORATION,
a California corporation a Delaware corporation
By: /s/ XXXXXX XXXX By: /s/ XXXXX XXXX
-------------------------------- ----------------------------------
Printed Printed
Name: XXXXXX XXXX Name: XXXXX XXXX
------------------------------ --------------------------------
Its: CFO Its: VICE PRESIDENT, GENERAL COUNSEL
------------------------------- ---------------------------------
Address: 000 Xxxxxxxxx Xxxxx Address: 000 Xxxxxxxx
Xxxxxxxx Xxxx, XX 00000 Xxxxxxx Xxxx, XX 00000
Telephone: 000 000-0000 Telephone: 000 000-0000
------------------------- ---------------------------
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CONSENT TO SUBLEASE
Master Lessor, hereby acknowledges receipt of a copy of this Sublease,
and consents to this Sublease. By this consent, Master Lessor shall not be
deemed in any way to have entered into the Sublease or to have consented to
any further assignment or sublease.
MASTER LESSOR:
XXXXXXX PROPERTIES, L.P.,
a California limited partnership
By:
------------------------------
Its:
-----------------------------
Address: 0000 Xxxx Xxxx Xxxx, Xxx. 000
Xxxxx Xxxx, XX 00000
Telephone:
----------------------------------
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[@HOME NETWORK LETTERHEAD]
June 3, 1997
Xx. Xxxxxx Xxxx
Vice President, Finance & CFO
Juniper Networks, Inc.
0000 Xxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
RE: LETTER AGREEMENT REGARDING FURNITURE AND OTHER PERSONAL
PROPERTY
Dear Xx. Xxxx:
This letter agreement ("Agreement") will set forth our mutual
understanding with respect to certain personal property currently located at 000
Xxxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx ("Subleased Premises"), which
Subleased Premises is the subject of that certain sublease ("Sublease") entered
between At Home Corporation ("At Home") and Juniper Networks, Inc. ("Juniper")
as of today's date. Capitalized terms not defined herein shall have the meaning
set forth in the Sublease.
On the Commencement Date of the Sublease, there shall be present on the
Subleased Premises fifty-two (52) cubicles, the existing wiring and security
system for the Subleased Premises (collectively, "Cubes and Wiring") and certain
office furniture located in the Premises and more particularly described on
Schedule 1, attached hereto and incorporated by reference herein ("Office
Furniture"). The cost of the Cubes and Wiring and the Office Furniture
(collectively, "Personal Property") shall be One Hundred Eighty Thousand and
No/100 Dollars ($180,000.00). The cost of the Personal Property shall be paid by
Juniper on an amortized basis over the first twelve (12) months of the Term, so
that on the Commencement Date and on the first day of each of the eleven (11)
months thereafter, Juniper shall pay to At Home, with each installment of Rent,
the sum of Fifteen Thousand and No/100 Dollars ($15,000.00). Notwithstanding the
foregoing, Sublessor shall credit against the foregoing monthly obligation due
from Sublessee, commencing with the first month of the Term until recovered in
full, the sum of Twenty Thousand and No/100 Dollars ($20,000.00, which sum
18
Xx. Xxxxxx Xxxx
June 3, 1997
Page 2
shall serve as reimbursement to Sublessee for restoring the NOC room to its
condition existing as of the Commencement Date of the Master Lease.
Effective as of the Commencement Date, At Home conveys to Juniper all of
its right, title and interest in and to the Personal Property. At Home
represents and warrants to Juniper, to the best of At Home's knowledge, that it
is conveying title to the Personal Property to Juniper free and clear of any
liens or encumbrances. Juniper shall take delivery of the Personal Property in
its "as-is, where-is" condition. At Home shall have no obligation to repair or
replace any item of Personal Property, and At Home makes no representation or
warranty of any kind with respect to the Personal Property, including, without
limitation, the condition or fitness of the Personal Property for Juniper's
proposed or actual use thereof.
Juniper shall indemnify, defend with counsel reasonably acceptable to At
Home, protect and hold harmless At Home from and against any and all
liabilities, judgments, causes of action, damages, costs and expenses
(including, without limitation, reasonable attorneys' and experts' fees), caused
by or arising in connection with the condition or use by Juniper of the Personal
Property from and after the date of delivery of the Personal Property by At Home
to Juniper, Juniper shall have the both the right and obligation to remove the
Personal Property from the Subleased Premises upon the expiration or earlier
termination of the Sublease.
This Agreement shall be governed by and construed in accordance with the
laws of the State of California. Any waiver by either party of any breach of any
term or condition of this Agreement shall not operate as a waiver of any other
breach of such term or condition or of any other term or condition nor shall any
failure to enforce such provision hereof operate as a waiver of such provision
or of any other provision hereof, nor constitute nor be deemed as a waiver or
release of any other party for anything arising out of, connected with or based
upon this Agreement. The parties each agree to execute and deliver such other
documents, certificates and agreements, and to take such other actions, as may
be reasonably necessary or appropriate to carry out and further the purposes of
this Agreement. In the event of any litigation involving the parties to this
Agreement to enforce any provision of this Agreement, to enforce any remedy
available upon default under this Agreement, or seeking a declaration of the
rights
19
Xx. Xxxxxx Xxxx
June 3, 1997
Page 3
of either party under this Agreement, the prevailing party shall be entitled to
recover from the other party such attorneys' fees and costs as may reasonably be
incurred, as awarded by the court hearing the matter. If any term, covenant,
condition or provision of this Agreement, or the application thereof to any
person or circumstance, shall to any extent be held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
covenants, conditions or provisions of this Agreement, or the application
thereof to any person or circumstance, shall remain in full force and effect and
shall in no way be affected, impaired or invalidated thereby. This Agreement
constitutes the entire agreement of the parties with respect to the Personal
Property, and supersedes all prior or contemporaneous agreements, oral or
written, concerning the subject matter hereof.
If the terms and conditions of this Agreement are satisfactory, please
indicate your acknowledgment and agreement by executing a copy of this Agreement
where indicated below.
Very truly yours,
AT HOME CORPORATION,
a Delaware corporation
By: /s/ Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx
Vice President and General Counsel
ACKNOWLEDGED AND AGREED:
JUNIPER NETWORKS, INC.,
a California corporation
By: /s/ Xxxxxx Xxxx
-----------------------------
Its: CFO
----------------------------
Date: 06/05/97
---------------------------
20
LEASE DATE: December 13, 1995
TENANT: At Home Corporation, a Delaware corporation
ADDRESS OF TENANT: 000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx
LANDLORD: Xxxxxxx Properties, L.P., a California limited
partnership
ADDRESS OF LANDLORD: 0000 Xxxx Xxxx Xxxx, #000, Xxxxx Xxxx, XX 00000
Project Description: That two (2) building project totaling 66,840 square
feet commonly known as 355 - 000 Xxxxxxxxx Xxxxx,
Xxxxxxxx Xxxx, Xxxxxxxxxx. The project is outlined in
green on Exhibit A.
Building Description: That 32,908 square foot, one-story building known as
000 Xxxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx. The
building is outlined in blue on Exhibit A.
Premises: That approximately 32,908 square feet of rentable area
commonly known as 000 Xxxxxxxxx Xxxxx, Xxxxxxxx Xxxx,
Xxxxxxxxxx. The demised premises is outlined in red on
exhibit A.
Permitted Use: Tenant's use of the Premises shall include general
office, marketing, sales, research and development,
storage and all other legally related uses.
Occupancy Density: 3.3 per 1,000 square feet.
Scheduled Term
Commencement Date: January 1, 1996
Length of Term: Seventy-Two (72) months
Rent:
Base Rent: see addendum 1 $__________________
Estimated First Year Basic Operating Costs $4,228.68 per month
Security Deposit: Thirty-Nine Thousand Four Hundred Eighty Nine Dollars
and Sixty Cents ($39,489.60).
Tenant's Proportionate Share:
Of Building: 100%
Of Project: 49.23%
The foregoing Basic Lease information is incorporated into and made part of
this Lease. Each reference in this lease to any Basic Lease information shall
mean the respective information above and shall be construed to incorporate all
of the terms provided under the particular Lease paragraph pertaining to such
information. In the event of any conflict between the Basic Lease Information
and the lease, the latter shall control.
EXHIBIT "A"
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21
TABLE OF CONTENTS
Page
Basic Lease Information.............................................. 1
Table of Contents.................................................... 2
1. Premises............................................................. 3
2. Possession and Lease Commencement.................................... 3
3. Term................................................................. 3
4. Use.................................................................. 3
5. Rules and Regulations................................................ 4
6. Rent................................................................. 4
7. Basic Operating Cost................................................. 4
8. Insurance and Indemnification........................................ 5
9. Waiver of Subrogation................................................ 6
10. Landlord's Repairs and Services...................................... 6
11. Tenant's Repairs..................................................... 6
12. Alterations.......................................................... 6
13. Signs................................................................ 7
14. Inspection/Posting Notices........................................... 7
15. Utilities............................................................ 7
16. Subordination........................................................ 7
17. Financial Statements................................................. 8
18. Estoppel Certificate................................................. 8
19. Security Deposit..................................................... 8
20. Tenant's Remedies.................................................... 8
21. Assignment and Subletting............................................ 8
22. Quiet Enjoyment...................................................... 9
23. Condemnation......................................................... 9
24. Casualty Damage...................................................... 9
25. Holding Over......................................................... 10
26. Default.............................................................. 10
27. Liens................................................................ 11
29. Transfers by Landlord................................................ 11
30. Right of Landlord to Perform Tenant's Covenants...................... 12
31. Waiver............................................................... 12
32. Notices.............................................................. 12
33. Attorney's Fees...................................................... 12
34. Successors and Assigns............................................... 12
35. Force Majeure........................................................ 12
36. Miscellaneous........................................................ 12
37. Additional Provisions................................................ 13
EXHIBIT "A" Site Plan
EXHIBIT "B" Floor Plan
EXHIBIT "C" Legal Description
Page 2
22
LEASE
THIS LEASE is made as of the 12th day of December, 1995, between
Xxxxxxx Properties L.P., a California limited partnership (hereinafter called
"Landlord") and At Home Corporation, a Delaware corporation (hereinafter called
"Tenant").
PREMISES 1. Landlord leases to Tenant and tenant leases from Landlord,
upon the terms and conditions hereafter set forth, those
premises (the "Premises") outlined in red on Exhibit "A" and
described in the Basic Lease information. The Premises may be
all or part of the building (the "Building") or of the project
(the "project") which may consist of more than one building.
The Building and Project are outlined in blue and green
respectively on Exhibit "A".
POSSESSION
AND LEASE
COMMENCEMENT 2. A. In the event this Lease pertains to a Premises in which the
interior improvements have already been constructed (existing
improvements), the provisions of this subparagraph 2.A. shall
apply and the Term Commencement Date shall be the later of (1)
the earlier of the date on which (a) Tenant takes possession
of some or all of the Premises, or (b) Landlord delivers the
Premises to Tenant, (2) or one day after Landlord delivers to
Tenant a fully executed Lease Termination Agreement from
Network Computing Devices whereby Network Computing Devices
relinquishes all rights, title, and interest to Premises, (3)
if for any reason Landlord cannot deliver possession of the
Premises to Tenant on the Scheduled Term Commencement Date,
Landlord shall not be subject to any liability therefor, nor
shall Landlord be in default hereunder, and Tenant agrees to
accept possession of the Premises at such time as Landlord is
able to deliver the same, which date shall then be deemed the
Term Commencement Date. Tenant shall not be liable for any
Rent for any period prior to delivery of the Premises. Tenant
acknowledges that it has inspected and accepts the Premises in
their present condition as suitable for the purpose for which
the Premises are leased. Tenant agrees that said Premises and
other improvements are in good and satisfactory condition as
of when possession was taken. Tenant further acknowledges that
no representations as to the condition or repair of the
Premises, nor promises to alter, remodel, or improve the
Premises have been made by Landlord, unless such are expressly
set forth in this Lease or the Addendum hereto. Tenant shall,
upon demand, execute and deliver to Landlord a letter of
acceptance of delivery of the Premises. Premises shall be
delivered to Tenant in broom clean condition.
TERM 3. The Term of this Lease shall commence on the Term Commencement
Date and continue in full force and effect for the number of
months specified as the Length and Term in the Basic Lease
Information or until this Lease is terminated as otherwise
provided herein. If the Term Commencement Date is a date other
than the first day of the calendar month, the Term shall be
the number of months of the Length of Term in addition to the
remainder of the calendar month following the Term
Commencement Date.
USE 4. A. Tenant shall use the Premises for the Permitted Use and for
no other use or purpose without prior written consent of
Landlord. No increase in the Occupant Density of the Premises
shall be made without the prior written consent of Landlord.
Tenant and its employees, customers, visitors, and licensees
shall have the non-exclusive right to use, in common with other
parties occupying the Buildings or Project, the parking areas
and driveways of the Project, subject to such reasonable rules
and regulations as Landlord may from time to time prescribe and
deliver to Tenant.
B. Tenant shall not permit any odors, smoke, dust, gas,
substances, noise or vibrations to emanate from the Premises,
nor take any action which would constitute a nuisance or would
unreasonably disturb, obstruct or endanger any other tenants of
the Building or Project in which the Premises are situated or
unreasonably interfere with their use of their respective
premises. Tenant shall not receive, store or otherwise handle
any product, material or merchandise which is toxic, harmful,
explosive, highly inflammable or combustible other than
customary amounts of office and janitorial supplies used in
accordance with all applicable laws. Storage outside the
Premises of materials, vehicles or any other items Landlord
deems objectionable is prohibited without Landlord's prior
written consent. Tenant shall not use or allow the Premises to
be used for any improper, immoral, unlawful or objectionable
purpose, nor shall Tenant cause or maintain or permit any
nuisance in, on or about the Premises. Tenant shall not commit
or suffer the commission of any waste in, on or about the
Premises. Tenant shall not allow any sale by auction upon the
Premises, or place any loads upon the floors, walls or ceilings
which endanger the structure, or place any harmful liquids in
the drainage system of the Building or Project. No waste,
materials or refuse shall be dumped upon or permitted to remain
outside the Premises except in trash containers placed inside
exterior enclosures designated for that purpose by Landlord.
Page 3
23
C. Tenant shall not use the Premises or permit anything
to be done in or about the Premises which will in any way
conflict with any law, statute, ordinance or governmental
rule or regulation now in force or which may hereafter be
enacted or promulgated. Tenant shall at its sole cost and
expense obtain any and all licenses or permits necessary
for Tenant's use of the Premises. Tenant shall promptly
comply with the requirements of any board of five
underwriters or other similar body now or hereafter
constituted relating to or affecting the use or
occupancy of the Premises. The judgment of any court of
competent jurisdiction or the admission of Tenant in any
actions against Tenant, whether Landlord be a party
thereto or not, that Tenant has so violated any such law,
statute, ordinance, rule, regulation or requirement,
shall be conclusive of such violation as between Landlord
and Tenant. Tenant shall not do or permit anything to be
done in, on or about the Premises or bring or keep
anything which will in any way increase the rate of any
insurance upon the Premises, Building or Project, or upon
any contents therein or cause a cancellation of said
insurance or otherwise affect said insurance in any
manner. Tenant shall indemnify Landlord and hold Landlord
harmless against any loss, expense, damage, attorneys'
fees or liability arising out of the failure of Tenant to
comply with any applicable law or comply with the
requirements as set forth herein.
RULES AND 5. Tenant and Tenant's agents, employees, and invitees
REGULATIONS shall faithfully observe and comply with any rules and
regulations Landlord may from time to time prescribe in
writing and delivered to Tenant for the purpose of
maintaining the proper care, cleanliness, safety, traffic
flow and general order of the Premises or Project.
Landlord shall not be responsible to Tenant for the
non-compliance by any other tenant or occupant of the
Building or Project with any of the rules and
regulations.
RENT 6. Tenant shall pay to Landlord, without demand throughout
the term, Rent as specified in the Basic Lease
information, payable in monthly installments in advance
on or before the first day of each calendar month, in
lawful money of the United States, without deduction or
offset whatsoever to Landlord at the address specified in
the Basic Lease Information or to such other firm or to
such other place as Landlord may from time to time
designate in writing. Rent for the first full month of
the Term shall be paid by Tenant upon Tenant's execution
of this Lease. If the obligation for payment of Rent
commences on other than the first day of a month, then
Rent shall be prorated and the prorated installment
shall be paid on the first day of the calendar month next
succeeding the Term Commencement Date. See Addendum #1.
BASIC 7. A. BASIC OPERATING COST. In addition to the Base Rent
OPERATING required to be paid hereunder, Tenant shall pay as
COSTS additional Rent, Tenant's Proportionate Share, as defined
in the Basic Lease Information, of Basic Operating Cost
in the manner set forth below. Basic Operating Cost shall
mean all expenses and costs of every kind and nature
which Landlord shall pay or become obligated to pay, or
would be required to pay if the Project were fully
occupied, because of or in connection with the
management, maintenance, preservation and operation of
the Project and its supporting facilities servicing the
Project (determined in accordance with generally accepted
accounting principles, consistently applied) including,
but not limited to, the following:
(1) All real estate taxes, possessory interest
taxes, business or license taxes or fees, service payment
in lieu of such taxes or fees, annual or periodic license
or use fees, excises, transit charges, housing fund
assessments, open space charge, assessments, levies, fees
or charges, general and special, ordinary and
extraordinary, unforeseen as well as foreseen, of any
kind (including fees "in-lieu" of any such tax or
assessment) which are assessed, levied, charged,
confirmed, or imposed by any public authority upon the
Project, its operations or the rent (or any portion or
component thereof), except (a) inheritance or estate
taxes imposed upon or assessed against the Project, or
any part thereof or interest therein, and (b) taxes
computed on the basis of the net income of Landlord or
the owner of any interest therein. See Addendum #7.
(2) All insurance premiums and costs, including,
but not limited to, any deductible amounts, premiums and
cost of fire, casualty and liability coverage, rental
abatement and special hazard insurance applicable to the
Project and Landlord's personal property used in
connection therewith; provided, however, that Landlord
may, but shall not be obligated to, carry special
landlord insurance covering losses caused by casualty
not insured under standard fire and extended coverage
insurance.
(3) Repairs, replacements and general maintenance
for the Premises, Building and Project (except for those
repairs expressly the responsibility of Landlord, those
repairs paid for by proceeds of insurance or by Tenant or
other third parties and alterations attributable solely
to tenants of the Project other than Tenant).
(4) All maintenance, janitorial and service
agreements and costs of supplies and equipment used in
maintaining the Premises, Building and Project and the
equipment therein and the adjacent sidewalks, driveways,
parking and service areas, including, without limitation,
alarm service, window cleaning, elevator maintenance,
Building exterior maintenance and landscaping.
(5) Utilities which benefit all or a portion of the
Premises.
(6) A management and accounting cost recovery equal
to three percent (3%) of Base Rent. See Addendum #8.
In the event that the Project is not fully occupied
during any fiscal year of the Term as determined by
Landlord, an adjustment shall be made in computing the
Basic Operating Cost for such year so that Basic
Operating Cost shall be computed as though the building
had been one hundred percent (100%) occupied; provided,
however, that in no event shall Landlord be entitled to
collect in excess of one hundred percent (100%) of the
total Basic Operating Cost from all of the tenants in the
Project including Tenant.
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All costs and expenses shall be determined in accordance
with generally accepted accounting principles which shall
be consistently applied. Basic Operating Cost shall not
include specific costs incurred for the account of,
separately billed to and paid by specific tenants.
Notwithstanding anything herein to the contrary, any
instance wherein Landlord, at Landlord's sole but
reasonable discretion, deems Tenant to be responsible for
any amounts greater than its Proportionate Share.
Landlord shall have the right to allocate costs in any
manner Landlord deems appropriate.
B. PAYMENT OF ESTIMATED BASIC OPERATING COST.
"Estimated Basic Operating Cost" for any particular year
shall mean Landlord's estimate of the Basic Operating
Cost for such fiscal year made prior to commencement of
such fiscal year as hereinafter provided. Landlord shall
have the right from time to time to revise its fiscal
year and interim accounting periods so long as the
periods as so revised are reconciled with prior periods
in accordance with generally accepted accounting
principles applied in a consistent manner. During the
last month of each fiscal year during the Term, or as
soon thereafter as practicable, Landlord shall give
Tenant written notice of the Estimated Basic Operating
Cost for ensuing fiscal year. Tenant shall pay Tenant's
Proportionate Share of the Estimated Basic Operating
Costs with installments of Base Rent for the fiscal year
to which the Estimated Basic Operating costs applies in
monthly installments on the first day of each calendar
month during such year, in advance. If at any time during
the course of the fiscal year, Landlord determines that
Basic Operating Cost will apparently vary from the then
Estimated Basic Operating Cost by more than ten percent
(10%), Landlord may, by written notice to Tenant, revise
the Estimated Basic Operating Cost for the balance of
such fiscal year and Tenant shall pay Tenant's
Proportionate Share of the Estimated Basic Operating Cost
as to revised for the balance of the then current fiscal
year on the first of each calendar month thereafter.
C. COMPUTATION OF BASIC OPERATING COST ADJUSTMENT.
"Basic Operating Cost Adjustment" shall mean the
difference between Estimated Basic Operating Cost and
Basic Operating Cost for any fiscal year determined as
hereinafter provided. Within one hundred twenty (120)
days after the end of each fiscal year, as determined by
Landlord, or as soon thereafter as practicable, Landlord
shall deliver to Tenant a statement of Basic Operating
Cost for the fiscal year just ended accompanied by a
computation of Basic Operating Cost Adjustment. If such
statement shows that Tenant's payment based upon
Estimated Basic Operating Cost is less than Tenant's
Proportionate Share of Basic Operating Cost, then Tenant
shall pay to Landlord the difference within twenty (20)
days after receipt of such statement. If such statement
shows that Tenant's payments of Estimated Basic Operating
Cost exceed Tenant's Proportionate Share of Basic
Operating Costs, then (provided that Tenant is not in
default under this Lease), Landlord shall pay to Tenant
the difference within twenty (20) days of such statement.
If this Lease has been terminated or the Term hereof has
expired prior to the date of such statement, then the
Basic Operating Cost Adjustment shall be paid by the
appropriate party within twenty (20) days after the date
of delivery of the statement. Should this Lease commence
or terminate at any time other than the first day of the
fiscal year, Tenant's Proportionate Share of the Basic
Operating Cost adjustment shall be prorated by reference
to the exact number of calendar days during such fiscal
year for which Tenant is obligated to pay Base Rent.
D. NET LEASE. This shall be a net Lease and Base Rent
shall be paid to Landlord absolutely net of all costs and
expenses except as herein provided. The provisions for
payment of Basic Operating Cost and the Basic Operating
Cost Adjustment are intended to pass on to tenant and
reimburse Landlord for all costs and expenses of the
nature described in Paragraph 7.A. incurred in connection
with ownership and operation of the Building or Project
and such additional facilities now and in subsequent
years as may be determined by Landlord to be necessary to
the Building or Project.
E. TENANT AUDIT. Tenant shall have the right, at
Tenant's expense and upon not less than five (5) days
prior written notice to Landlord, to review at reasonable
times, in Landlord's office, Landlord's books and records
applicable to Tenant's Lease for purposes of verifying
Landlord's calculation of the Basic Operating Cost and
Basic Operating Cost Adjustment.
In the event that Tenant shall dispute the amount set
forth in any statement provided by Landlord under
Paragraph 7.B. or 7.C. above, Tenant shall have the
right, not later than twenty (20) days following the
receipt of such statement to cause Landlord's books and
records with respect to such fiscal year to be audited by
an accountant selected by Tenant and subject to
Landlord's reasonable right of approval. The Basic
Operating Cost Adjustment shall be appropriately adjusted
on the basis of such audit. If such audit discloses a
liability for a refund in excess of ten percent (10%) of
Tenant's Proportionate Share of the Basic Operating Cost
Adjustment previously reported, the cost of such audit
shall be borne by Landlord; otherwise, the cost of such
audit shall be paid by Tenant. If Tenant shall not
request an audit in accordance with the provisions of
this Paragraph 7.E. within forty-five (45) days of
receipt of Landlord's statement provided pursuant to
Paragraph 7.B. or 7.C., such statement shall be final and
binding for all purposes hereof.
INSURANCE AND 8. A. CASUALTY INSURANCE. Landlord agrees to maintain
INDEMNIFICATION insurance insuring the Buildings of the Project of which
the Premises are a part, against fire, lightning,
extended coverage, vandalism and malicious mischief in an
amount not less than the full replacement cost thereof.
Such insurance shall be for the sole benefit of Landlord
and under its sole control. Landlord shall not be
obligated to insure any furniture, equipment, machinery,
goods or supplies not covered by this Lease which Tenant
may keep or maintain in the Premises or any leasehold
improvements, additions or alterations which Tenant may
make upon the Premises.
B. LIABILITY INSURANCE. Tenant shall purchase at its
own expense and keep in force during this Lease a policy
or policies of comprehensive liability insurance,
including personal injury and property damage, in the
amount of not less than Five Hundred Thousand Dollars
($500,000.00) for property damage and Two Million Dollars
($2,000,000.00) per occurrence for personal injuries or
deaths of persons occurring in or
Page 5
25
about the Premises and Project. Said policies shall (1) name
Landlord and, if applicable, its agent, and any party
holding an interest to which this Lease may be subordinated
as additional insureds, (2) be issued by an insurance
company acceptable to Landlord and licensed to do business
in the State of California, and (3) provide that said
insurance shall not be canceled unless thirty (30) days
prior written notice shall have been given to Landlord. Said
policy or policies or certificates thereof shall be
delivered to Landlord by Tenant upon commencement of the
Lease and upon each renewal of said insurance.
C. INDEMNIFICATION. Landlord shall not be liable to Tenant
for any loss or damage to person or property caused by
theft, fire, act of God, acts of a public enemy, riot,
strike, insurrection, war, court order, requisition or order
of governmental body or authority or for any damage or
inconvenience which may arise through repair or alteration
of any part of the Building or Project or failure to make
any such repair except as expressly otherwise provided in
Paragraphs 10 and 12. Tenant shall indemnify Landlord and
hold Landlord harmless from any and all loss, cost, damage,
injury or expense arising out of or related to (1) claims of
injury to or death of persons or damage to property
occurring or resulting directly or indirectly from the use
or occupancy of the Premises or from activities of Tenant
its agents, servants, employees or invitees in or about the
Premises or Project (2) claims for work or labor performed
or for materials or supplies furnished to or at the request
of Tenant or in connection with performance of any work done
for the account of Tenant within the Premises or Project and
(3) claims arising from any breach or default on the part of
Tenant in the performance of any covenant contained in this
Lease. Such indemnity shall include without limitation the
obligation to provide all reasonable costs of defense
against any such claims including any action or proceeding
brought against Landlord. The foregoing indemnity shall not
be applicable to claims arising from the sole negligence or
willful misconduct of Landlord, or Landlord's agent,
employees or contractors. The provisions of this paragraph
shall survive the expiration or termination of this Lease
with respect to any claims or liability occurring prior to
such expiration or termination. See Addendum #9.
WAIVER OF
SUBROGATION 9. To the extent permitted by law and without affecting the
coverage provided by insurance required to be maintained
hereunder, Landlord and Tenant each waive any right to
recover against the other (a) damages for injury to or death
of persons, (b) damages to property, (c) damages to the
Premises or any part thereof, or (d) claims arising by
reason of the foregoing, except to the extent the claims
in (a), (b), (c), or (d) are caused by the negligence or
willful misconduct of Landlord or Tenant as applicable.
This provision is intended to waive fully, and for the
benefit of each party, any rights and/or claims which might
give rise to a right of subrogation on any insurance
carrier. The coverage obtained by each party pursuant to
this Lease shall include, without limitation, a waiver of
subrogation by the carrier which conforms to the revisions
of this paragraph.
LANDLORD'S
REPAIRS AND
SERVICES 10. Landlord shall at Landlord's expense maintain the
structural soundness of the roof, foundations and exterior
walls of the Building in good repair, reasonable wear and
tear excepted. The term "walls" as used herein shall not
include windows, glass or plate glass, doors, special store
fronts or office entries. The term "roof" as used herein
shall not include skylights, smoke hatches or roof vents.
Landlord shall perform on behalf of Tenant and other
tenants of the Project the maintenance of the public and
common areas of the Project including, but not limited to,
the landscaped areas, parking areas, driveways, the truck
staging areas, rail spur areas, fire sprinkler systems,
sanitary and storm sewer lines, utility services, electric
and telephone equipment servicing the Building(s), exterior
lighting, and anything which affects the operation and
exterior appearance of the Project, which determination
shall be at Landlord's sole but reasonable discretion.
Tenant shall reimburse Landlord for all such costs
described in the preceding sentence in accordance with
Paragraph 7. Any damage caused by or repairs necessitated
by any act of Tenant may be repaired by Landlord at
Landlord's option and at Tenant's expense. Tenant shall
immediately give Landlord written notice of any defect or
need of repairs after which Landlord shall have reasonable
opportunity to repair same. Landlord shall commence to
proceed with repairs within ten (10) days after receiving
notice. Landlord's liability with respect to any defects,
repairs or maintenance for which Landlord is responsible
under any of the provisions of this Lease shall be limited
to the cost of such repairs of maintenance. See Addendum
#10.
TENANT'S
REPAIRS 11. Tenant shall, at Tenant's expense, maintain all parts of
the Premises in a good clean and secure condition promptly
making all necessary repairs and replacements including,
but not limited to, all windows, glass, doors, and any
special office entries, walls and wall finishes, floor
covering, heating, ventilating and air conditioning
systems, truck doors, dock bumpers, dock plates and
levelers, roofing except for structural aspects thereof,
plumbing work and fixtures, down spouts, skylights, smoke
hatches and roof vents. Tenant shall at Tenant's expense
also perform necessary pest extermination and regular
removal of trash and debris. Tenant shall, at its own
expense, enter into a regularly scheduled preventive
maintenance/service contract with a maintenance contractor
for servicing all hot water, heating and air conditioning
systems and equipment within or serving the Premises. The
maintenance contractor and the contract must be approved by
Landlord. The service contract must include all services as
often as is necessary to maintain the equipment in good
working order, and must become effective and a copy
thereof delivered to Landlord within thirty (30) days of
the Term Commencement Date. Tenant shall not damage any
demising wall or disturb the integrity and support provided
by any demising wall and shall, at its sole expense,
immediately repair any damage to any demising wall caused
by Tenant or its employees, agents or invitees. See
Addendum #11.
ALTERATIONS 12. Tenant shall not make, or allow to be made, any alterations
or physical additions in, about or to the Premises without
obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld with respect to
proposed alterations and additions which (a) comply with
all applicable laws, ordinances, rules and regulations,
(b) are in Landlord's option compatible with the Project
and its
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26
mechanical, plumbing, electrical, and heating/ventilation/
air conditioning systems, and (c) in Landlord's opinion will
not interfere with the use and occupancy of any other
portion of the Building or Project by any other tenant or
its invitees. Specifically, but without limiting the
generality of the foregoing, Landlord shall have the right
of consent for all plans and specifications for the
proposed alterations or additions, construction means and
methods, any contractor or subcontractor to be employed on
the work of alterations or additions, and the time for
performance of such work. Tenant shall also supply to
Landlord any documents and information reasonably requested
by Landlord in connection with its consideration of a
request for approval hereunder. Tenant must have Landlord's
written approval and all appropriate permits and licenses
prior to the commencement of said alterations and
additions. All alterations and additions permitted
hereunder shall be made and performed by Tenant without
cost or expense to Landlord including any costs or expenses
which Landlord may incur in electing to have an outside
agency review said plans and specifications. Landlord shall
have the right to require Tenant to remove any or all
alterations, additions, improvements and partitions made by
Tenant and restore the Premises to their original condition
by the termination of this Lease, by lapse of time or
otherwise, all at Tenant's expense. All such removals and
restoration shall be accomplished in a good workmanlike
manner so as not to cause any damage to the Premises or
Project whatsoever. If Landlord so elects, such
alterations, physical additions or improvements shall
become the property of Landlord and surrendered to Landlord
upon the termination of this Lease by lapse of time or
otherwise; provided, however, that this clause shall not
apply to trade fixtures or furniture owned by Tenant. In
addition to and wholly apart from its obligation to pay
Tenant's Proportionate Share of Basic Operating Costs,
tenant shall be responsible for and shall pay prior to
delinquency any taxes or governmental service fees,
possessory interest taxes, fees or charges in lieu of any
such taxes, capital levies, or other charges imposed upon,
levied with respect to or assessed against its personal
property, on the value of its alterations, additions or
improvements and on its interest pursuant to this Lease. To
the extent that any such taxes are not separately assessed
or billed to Tenant, Tenant shall pay the amount thereof as
invoiced to Tenant by Landlord. See Addendum #2.
SIGNS 13. All signs, notices and graphics of every kind or character,
visible in or from public view or corridors, the common
areas or the exterior of the Premises, shall be subject to
Landlord's prior written approval, which Landlord shall
have the right to withhold in its absolute and sole
discretion. Tenant shall not place or maintain any banners
whatsoever or any window decor in or on any exterior window
or window fronting upon any common areas or service area or
upon any truck doors or main doors without Landlord's prior
written approval which Landlord shall have the right to
grant or withhold in its absolute and sole discretion. Any
installation of signs or graphics on or about the Premises
and Project shall be subject to any applicable governmental
laws, ordinances, regulations and to any other requirements
imposed by Landlord. Tenant shall remove all such signs and
graphics by the termination of this Lease. Such
installations and removals shall be made in such manner as
to avoid injury to or defacement of the Premises, Building
or Project and any other improvements contained therein,
and Tenant shall repair any injury or defacement including,
without limitation, discoloration caused by such
installation or removal.
INSPECTION/
POSTING
NOTICES 14. After reasonable prior written notice, except in
emergencies where no such notice shall be required,
Landlord, its agents and representatives, shall have the
right to enter the Premises to inspect the same, to clean,
to perform such work as may be permitted or required
hereunder, to make repairs or alterations to the Premises
or Project or to other tenant spaces therein, to deal with
emergencies, to post such notices as may be permitted or
required by law to prevent the perfection of liens against
Landlord's interest in the Project or to exhibit the
Premises to prospective tenants (during the last six (6)
months of the term only), purchasers, encumbrances or
others, or for any other purpose as Landlord may deem
necessary or desirable; provided, however, that Landlord
shall not unreasonably interfere with Tenant's business
operations. Tenant shall not be entitled to any abatement
of Rent by reason of the exercise of any such right of
entry. Six months prior to the end of the Lease, Landlord
shall have the right to erect on the Premises and/or
Project a suitable sign indicating that the Premises are
available for lease. Tenant shall meet with Landlord for a
joint inspection of the Premises at the time of vacating. In
the event of Tenant's failure to give such notice or
participate in such joint inspection, Landlord's inspection
at or after Tenant's vacating the Premises shall
conclusively be deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
UTILITIES 15. Tenant shall pay for all water, gas, heat, air
conditioning, light, power, telephone, sewer, sprinkler
charges and other utilities and services used on or from the
Premises, together with any taxes, penalties, surcharges or
the like pertaining thereto, and maintenance charges for
utilities and shall furnish all electric light bulbs,
ballasts and tubes. If any such services are not separately
metered to Tenant, Tenant shall pay a reasonable
proportion, as determined by Landlord, of all charges
jointly serving other premises. Landlord shall not be liable
for any damages directly or indirectly resulting from nor
shall the Rent or any monies owed Landlord under this Lease
herein reserved be abated by reason of (a) the
installation, use or interruption of use of any equipment
used in connection with the furnishing of any of the
foregoing utilities and services, (b) failure to furnish or
delay in furnishing any such utilities or services when
such failure or delay is caused by acts of God or the
elements, labor disturbances of any character, any other
accidents or other conditions beyond the reasonable control
of Landlord, or (c) the limitation, curtailment, rationing
or restriction on use of water, electricity, gas or any
other form of energy or any other service or utility
whatsoever serving the Premises or Project. Landlord shall
be entitled to cooperate voluntarily and in a reasonable
manner in the efforts of national, state or local
governmental agencies or utility suppliers in reducing
energy or other resource consumption. The obligations to
make services available hereunder shall be subject to the
limitations of any such voluntary, reasonable program.
SUBORDINATION 16. This Lease shall be subject and subordinate at all times to
(a) all ground leases or underlying leases which may now
exist or hereafter be executed affecting the Premises
and/or the land upon which the Premises and Project are
situated, or both, and (b) any mortgage or deed of trust
which may now exist or be placed upon said Project, land,
ground leases or underlying leases, or Landlord's interest
or estate in any of
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said items, which is specified as security. Notwithstanding
the foregoing, Landlord shall have the right to subordinate
or cause to be subordinated any such ground leases or
underlying leases or any such liens to this Lease. In the
event that any ground lease or underlying lease terminates
for any reason or any mortgage or deed of trust is
foreclosed or a conveyance in lieu of foreclosure is made
for any reason, Tenant shall, notwithstanding any
subordination, attorn to and become the Tenant of the
successor in interest to Landlord at the option of such
successor in interest. Tenant shall execute and deliver,
upon demand by Landlord and in the form requested by
Landlord, any additional documents evidencing the priority
of subordination of this Lease with respect to any such
ground leases or underlying leases or any such mortgage or
deed of trust. SEE XXXXXXXX # 00.
FINANCIAL
STATEMENTS 17. At the request of Landlord, Tenant shall provide to
Landlord its current financial statements or other
information discussing financial worth which Landlord shall
use solely for purposes of this Lease and in connection
with the ownership, management and disposition of the
property subject hereto.
ESTOPPEL
CERTIFICATES 18. Tenant agrees from time to time within ten business (10)
days after request of Landlord, to deliver to Landlord, or
Landlord's designee, and estoppel certificate stating that
this Lease is in full force and effect, the date to which
rent has been paid, the unexpired portion of this Lease and
such other matters pertaining to this Lease as may be
reasonably requested by Landlord. Failure by Tenant to
execute and deliver such certificate shall constitute an
acceptance of the Premises and acknowledgment by Tenant
that the statements included are true and correct without
exception. Landlord and Tenant intend that any statement
delivered pursuant to this paragraph may be relied upon by
any mortgagee, beneficiary, purchaser or prospective
purchaser of the Project or any interest therein. The
parties agree that Tenant's obligation to furnish such
estoppel certificates in a timely fashion is a material
inducement for Landlord's execution of the Lease.
SECURITY
DEPOSIT 19. Tenant agrees to deposit with Landlord upon execution of
this Lease, a Security Deposit as stated in the Basic Lease
Information which sum shall be held by Landlord, without
obligation for interest, as security for the performance of
Tenant's covenants and obligations under this Lease, it
being expressly understood and agreed that such deposit is
not an advance rental deposit or a measure of damages
incurred by Landlord in case of Tenant's default. Upon the
occurrence of any event of default by Tenant beyond the
applicable notice and cure period, Landlord may, from time
to time, without prejudice to any other remedy provided
herein or provided by law, use such funds to the extent
necessary to make good any arrears of Rent or other
payments due to Landlord hereunder, and any other damage,
injury, expense or liability caused by such event of
default, and Tenant shall pay to Landlord, on demand, the
amount so applied in order to restore the Security Deposit
to its original amount. SEE ADDENDUM #3 AND #13.
TENANT'S
REMEDIES 20. Tenant shall look solely to Landlord's interest in the
Project for recovery of any judgment from Landlord.
Landlord, or if Landlord is a partnership, its partners
whether general or limited, or if it is a corporation, its
directors, officers or shareholders, shall never be
personally liable for any such judgment. Any lien obtained
to enforce any such judgment and any levy of execution
thereon shall be subject and subordinate to any lien,
mortgage or deed of trust on the Project.
ASSIGNMENT
AND
SUBLETTING 21. A. Tenant shall not assign or sublet the Premises or any
part thereof without Landlord's prior written approval
except as provided herein. If Tenant desires to assign this
Lease or sublet any or all of the Premises, Tenant shall
give Landlord written notice forty-five (45) days prior to
the anticipated effective date of the assignment or
sublease. Landlord shall then have a period of twenty (20)
days following receipt of such notice to notify Tenant in
writing that Landlord elects either (1) to terminate this
Lease as to the space so affected as of the date so
requested by Tenant, or (2) to permit Tenant to assign this
Lease or sublet such space, subject, however, to Landlord's
prior written approval of the proposed assignee or
subtenant and of any related documents or agreements
associated with the assignment or sublease, such consent
not to be unreasonably withheld so long as the use of the
Premises by such proposed assignee or subtenant would be a
Permitted Use and would not in Landlord's opinion increase
Occupant Density of the Project, the proposed assignee or
subtenant is of sound financial condition. If Landlord
should fail to notify Tenant in writing of such election
within said period, Landlord shall be deemed to have waived
option (1) above, but written approval by Landlord of the
proposed assignee or subtenant shall be required. Failure
by Landlord to approve a proposed assignee or subtenant
shall not cause a termination of this Lease.
D. If Tenant is a corporation, a transfer of corporate
shares by sale, assignment, bequest, inheritance, operation
of law or other disposition (including such a transfer to or
by a receiver or trustee in federal or state bankruptcy,
insolvency or other proceedings), so as to result in a
change in the present control of such corporation or any of
its parent corporations by the person or persons owning a
majority of said corporate shares, shall constitute an
assignment for purposes of this paragraph. SEE ADDENDUM #15.
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28
E. If Tenant is a partnership, joint venture or other
unincorporated business form, a transfer of the interest of
persons, firms or entities responsible for managerial
control of Tenant by sale, assignment, bequest, inheritance,
or operation of law or other disposition, so as to result in
a change in the present control of said entity and/or a
change in the identity of the persons responsible for the
general credit obligations of said entity shall constitute
an assignment for all purposes of this paragraph.
F. No assignment or subletting by Tenant shall relieve
Tenant of any obligations under this Lease. Any assignment
or subletting which conflicts with the provisions hereof
shall be void. SEE ADDENDUM #16.
QUIET
ENJOYMENT 22. Landlord represents that it has full right and authority to
enter into this Lease and that Tenant, upon paying the Rent
and performing its other covenants and agreements herein set
forth, shall peaceably and quietly have, hold and enjoy the
Premises for the Term hereof without hindrance or
molestation from Landlord, subject to the terms and
provisions of this Lease.
CONDEMNATION 23. A. If the whole, or any substantial portion of the Project
of which the Premises are a part, should be taken or
condemned for any public use under governmental law,
ordinance, or regulation, or by right of eminent domain, or
by private purchase in lieu thereof, and the taking would
prevent or materially interfere with the Permitted Use of
the Premises, this Lease shall terminate and the Rent shall
be abated during the unexpired portion of this lease,
effective when the physical taking of said Premises shall
have occurred.
B. If a portion of the Project of which the Premises are a
part should be taken or condemned for any public use under
any governmental law, ordinance, or regulation, or by right
of eminent domain, or by private purchase in lieu thereof,
and this Lease is not terminated as provided in subparagraph
23.A. above, this Lease shall not terminate, but the Rent
payable hereunder during the unexpired portion of the Lease
shall be reduced to such extent as may be fair and
reasonable under all of the circumstances.
C. Landlord shall be entitled to any and all payment,
income, rent, award, or any interest therein whatsoever
which may be paid or made in connection with such taking or
conveyance and Tenant shall have no claim against Landlord
or otherwise for the value of any unexpired portion of this
Lease. Notwithstanding the foregoing paragraph, any
compensation specifically awarded Tenant for loss of
business. Tenant's personal property, moving cost or loss of
goodwill, shall be and remain the property of Tenant.
CASUALTY
DAMAGE 24. A. If the Premises should be damaged or destroyed by fire,
tornado or other casualty, Tenant shall give immediate
written notice thereof to Landlord. Within thirty (30) days
of such notice, Landlord shall notify Tenant whether in
Landlord's opinion such repairs can be made either (1)
within ninety (90) days, (2) in more than ninety (90) days,
but in less than one hundred eighty (180) days, or (3) in
more than one hundred eighty (180) days from the date of
such notice; Landlord's determination shall be binding on
Tenant.
B. If the Premises should be damaged by fire, tornado or
other casualty but only to such extent that rebuilding or
repairs can in Landlord's estimation be completed within
ninety (90) days after the date upon which Landlord is
notified by Tenant of such damage, this Lease shall not
terminate, and Landlord shall at its sole cost and expense
thereupon proceed with reasonable diligence to rebuild and
repair the Premises to substantially the condition in which
they existed prior to such damage, except that Landlord
shall not be required to rebuild, repair or replace any part
of the partitions, fixtures, additions and other
improvements which may have been placed in, on or about the
Premises by Tenant. If the Premises are untenantable in
whole or in part following such damage, the Rent payable
hereunder during the period in which they are untenantable
shall be reduced to such extent as may be fair and
reasonable under all of the circumstances.
C. If the Premises should be damaged by fire, tornado or
other casualty but only to such extent that rebuilding or
repairs can in Landlord's estimation be completed in more
than ninety (90) days but in less than one hundred eighty
(180) days, then Landlord shall have the option of either
(1) terminating the Lease effective upon the date of the
occurrence of such damage in which the Rent shall be abated
during the unexpired portion of the Lease or (2) electing to
rebuild or repair the Premises to substantially the
condition in which they existed prior to such damage except
that Landlord shall not be required to rebuild, repair or
replace any part of the partitions, fixtures, additions and
other improvements which may have been placed in, on or
about the Premises by Tenant. If the Premises are
untenantable in whole or in part following such damage, the
Rent payable hereunder during the period in which they are
untenantable shall be reduced to such extent as may be fair
and reasonable under all of the circumstances. In the event
that Landlord should fail to complete such repairs and
rebuilding within one hundred eighty (180) days after the
date upon which Landlord is notified by Tenant of such
damage, such period of time to be extended for delays caused
by the fault or neglect of Tenant or because of acts of God,
acts of public agencies, labor disputes, strikes, fires,
freight embargoes, rainy or stormy weather, inability to
obtain materials, supplies or fuels, or delay of the
contractors or subcontractors due to such causes or other
contingencies beyond the reasonable control of Landlord,
Tenant may at its option terminate this Lease by delivering
thirty (30) days prior written notice of termination to
Landlord as Tenant's exclusive remedy, whereupon all rights
and obligations hereunder shall cease and terminate.
D. If the Premises should be so damaged by fire, tornado or
other casualty that rebuilding or repairs cannot in
Landlord's estimation be completed within one hundred eighty
(180) days after the date upon which Landlord is notified by
Tenant of such damage, this Lease shall terminate, and the
Rent shall be abated during the unexpired portion of this
Lease, effective upon the date of the occurrence of such
damage.
E. Notwithstanding anything therein to the contrary, in the
event that holder of any indebtedness secured by a mortgage
or deed of trust covering the Premises requires that the
insurance proceeds be applied to such indebtedness, then
Landlord shall have the right to terminate this Lease by
delivering written notice of
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termination to Tenant within fifteen (15) days after such
requirement is made by any such holder, whereupon all
rights and obligations hereunder shall cease and terminate.
F. The provision of Section 1942, Subdivision 2, and
Section 1933, Subdivision 4, of the Civil Code of
California is superseded by the foregoing.
HOLDING OVER 25. If Tenant shall retain possession of the Premises or any
portion thereof without Landlord's consent following the
expiration of the Lease or sooner termination for any
reason, then Tenant shall pay to Landlord for each day of
such retention ONE HUNDRED FIFTY PERCENT (150%) the amount
of the daily rental for the first month prior to the date
of expiration or termination. Tenant shall also indemnify
and hold Landlord harmless from any loss or liability
resulting from delay by Tenant in surrendering the
Premises, including, without limitation, any claims made by
any succeeding tenant founded on such delay. Acceptance of
Rent by Landlord following expiration or termination shall
not constitute a renewal of this Lease, and nothing
contained in this paragraph shall waive Landlord's right of
reentry or any other right. Tenant shall be only a tenant
at sufference, whether or not Landlord accepts any Rent
from Tenant while Tenant is holding over without Landlord's
written consent. Additionally, in the event that upon
termination of the Lease. Tenant has not fulfilled its
obligation with respect to repairs and cleanup of the
Premises or any other Tenant obligations as set forth in
this Lease, then Landlord shall have the right to perform
any such obligations as it deems necessary at Tenant's sole
cost and expense, and any time required by Landlord to
complete such obligations shall be considered a period of
holding over and the terms of this paragraph shall apply.
DEFAULT 26. A. EVENTS OF DEFAULT. The occurrence of any of the
following shall constitute an event of default on the part
of Tenant:
(1) ABANDONMENT. Vacation or abandonment of the
Premises for a continuous period in excess of TWENTY (20)
DAYS. Tenant waives any right of notice Tenant may have
under section 1951.3 of the Civil Code of the State of
California, the terms of this subparagraph 26A being deemed
such notice to Tenant as required by said Section 1951.3.
(2) NONPAYMENT OF RENT. Failure to pay any installment
of Rent or any other amount due and payable hereunder upon
the date when said payment is due, such failure continuing
without cure by payment of the delinquent Rent and late
charge or other obligations for a period of five (5) days
after written notice and demand; provided, however, that
except as expressly otherwise provided herein. Landlord
shall not be required to provide such notice more than
twice during any calendar year of the Term, the third such
nonpayment constituting default for all purposes hereof
without requirements of notice.
(3) OTHER OBLIGATIONS. Failure to perform any
obligations, agreement or covenant under this Lease other
than those matters specified in subparagraphs (1) and (2)
of this subparagraph 26A, such failure continuing for
fifteen (15) days after written notice of such failure, or
such longer period as necessary to remedy such default,
provided that Tenant shall continuously and diligently
pursue such remedy at all times until such default is
cured.
(4) GENERAL ASSIGNMENT. A general assignment by
Tenant for the benefit of creditors.
(5) BANKRUPTCY. The filing of any voluntary petition
in bankruptcy by Tenant, or the filing of an involuntary
petition by Tenant's creditors, which involuntary petition
remains undischarged for a period of thirty (30) days. In
the event that under applicable law, the trustee in
bankruptcy or Tenant has the right to affirm this Lease and
continue to perform the obligations of tenant hereunder,
such trustee or Tenant shall, in such time period as may be
permitted by the bankruptcy court having jurisdiction, cure
all defaults of Tenant hereunder outstanding as of the date
of the affirmance of this Lease and provide to Landlord
such adequate assurances as may be necessary to ensure
Landlord of the continued performance of Tenant's
obligations under this Lease.
(6) RECEIVERSHIP. The employment of a receiver to take
possession of substantially all of Tenant's assets of the
Premises, if such attachment or other seizure remains
undismissed or undischarged for a period of ten (10) days
after the levy thereof.
(7) ATTACHMENT. The attachment, execution or other
judicial seizure of all or substantially all of Tenant's
assets of the Premises, if such attachment or other seizure
remains undismissed or undischarged for a period of ten
(10) days after the levy thereof.
B. REMEDIES UPON DEFAULT.
(1) RENT. All failures to pay any monetary obligation
to be paid by Tenant under this Lease shall be construed as
obligations for payment of Rent.
(2) TERMINATION. In the event of the occurrence of any
event of default, Landlord shall have the right, with or
without notice or demand, to immediately terminate this
Lease, and at any time thereafter recover possession of the
Premises or any part thereof and expel and remove therefrom
Tenant and any other person occupying the same, by any
lawful means, and again repossess and enjoy the Premises
without prejudice to any of the remedies that Landlord may
have under this Lease, or at law or equity by reason of
Tenant's default or of such termination.
(3) CONTINUATION AFTER DEFAULT. Even though Tenant has
breached this Lease and/or abandoned the Premises, this
Lease shall continue in effect for so long as Landlord does
not terminate Tenant's right to possession under Paragraph
26.B.(2) hereof, and Landlord may enforce all its rights
and remedies under this
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30
Lease, including, but without limitation, the right to recover
Rent as it becomes due, and Landlord, without terminating this
Lease, may exercise all of the rights and remedies of a
Landlord under Section 1951.4 of the Civil Code of the State of
California or any successor code section. Acts of maintenance
preservation or efforts to lease the Premises or the
appointment of a receiver upon application of Landlord to
protect Landlord's interest under this Lease shall not
constitute an election to terminate Tenant's right to
possession.
C. DAMAGES UPON TERMINATION. Should Landlord terminate this
Lease pursuant to the provisions of Paragraph 26.B.(2) hereof,
Landlord shall have all the rights and remedies of a Landlord
provided by Section 1951.2 of the Civil Code of the State of
California, or successor code sections. Upon such termination,
in addition to any other rights and remedies to which Landlord
may be entitled under applicable law, Landlord shall be
entitled to recover from Tenant: (1) the worth at the time of
award of the unpaid Rent and other amounts which had been
earned at the time of termination, (2) the worth at the time of
award of the amount by which the unpaid Rent which would have
been earned after termination until the time of award exceeds
the amount of such Rent loss that the Tenant proves could have
been reasonably avoided, (3) 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 Rent loss
that the Tenant proves could be reasonably avoided, and (4) any
other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its
obligations under the lease or which, in the ordinary course of
things, would be likely to result therefrom. The "worth at the
time of award" of the amounts referred to in (1) and (2) above
shall be computed with interest at the maximum rate allowed by
law. The "worth at the time of award" of the amount referred to
in (3) above shall be computed by discounting such amount at
the Federal Discount Rate of the Federal Reserve Bank of San
Francisco at the time of the award plus one percent (1%).
D. LATE CHARGE. In addition to its other remedies, Landlord
shall have the right without notice or demand to add to the
amount of any payment required to be made by Tenant hereunder,
and which is not paid on or before the date the same is due, an
amount equal to five percent (5%) of the delinquency for each
month or portion thereof that the delinquency remains
outstanding to compensate Landlord for the loss of the use of
the amount not paid and the administrative costs caused by the
delinquency, the parties agreeing that Landlord's damage by
virtue of such delinquencies would be difficult to compute and
the amount stated herein represents a reasonable estimate
thereof.
E. REMEDIES CUMULATIVE. All rights, privileges and elections or
remedies of the parties are cumulative and not alternative to
the extent permitted by law and except as otherwise provided
herein.
LIENS 27. Tenant shall keep the premises free from liens arising out of
or related to work performed, materials or supplies furnished
or obligations incurred by Tenant or in connection with work
made, suffered or done by Tenant in or on the Premises or
Project. In the event that Tenant shall not, within ten (10)
days following the imposition of any such lien, cause the same
to be released of record by payment or posting of a proper
bond, Landlord shall have, in addition to all other remedies
provided herein and by law, the right, but not the obligation,
to cause the same to be released by such means as it shall deem
proper, including payment of the claim giving rise to such
lien. All sums paid by Landlord on behalf of Tenant and all
expenses incurred by Landlord in connection therefore shall be
payable to Landlord by Tenant on demand with interest at the
rate of 12%. Landlord shall have the right at all times to post
and keep posted on the Premises any notices permitted or
required by law, or which Landlord shall deem proper, for the
protection of Landlord, the Premises, the Project and any other
party having an interest herein, from mechanics' and
materialmen's liens, and Tenant shall give Landlord not less
than ten (10) business days prior written notice of the
commencement of any work in the Premises or Project which could
lawfully give rise to a claim for mechanics' or materialmen's
lien.
TRANSFERS BY
LANDLORD 29. In the event of a sale or conveyance by Landlord of the
Project, and the express assumption in writing of the
obligations of Landlord hereunder by such succeeding owner, the
same shall operate to release Landlord from any future
liability upon any of the covenants or conditions, express or
implied, herein contained in favor of Tenant, and in such event
Tenant agrees to look solely to the responsibility of the
successor in interests of Landlord in and to this Lease. This
Lease shall not be affected by any such sale and Tenant agrees
to attorn to the purchaser or assignee.
RIGHT OF
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31
LANDLORD TO 30. All covenants and agreements to be performed by
PERFORM Tenant under any of the terms of this Lease shall
TENANT'S be performed by Tenant, at Tenant's sole cost and
COVENANTS expense, and without any abatement of Rent. If
Tenant shall fail to pay any sum of money other than
Rent, required to be paid by it hereunder, or shall
fail to perform any other act on its part to be
performed hereunder, and such failure shall continue
for ten (10) days after notice thereof by Landlord.
Landlord may, but shall not be obligated to do so,
and without waiving or releasing Tenant from any
obligations of the Tenant, make any such payment or
perform any such act on the Tenant's part to be made
or performed. All sums so paid by Landlord and all
necessary incidental costs together with interest
thereon at the rate of 12% from the date of such
payment by the Landlord shall be payable to Landlord
on demand, and Tenant covenants to pay such sums,
and Landlord shall have, in addition to any other
right or remedy of Landlord, the same right and
remedies in the event of the nonpayment thereof by
Tenant as in the case of default by Tenant in the
payment of Rent.
WAIVER 31. If either Landlord or Tenant waives the performance
of any term, covenant or condition contained in this
Lease, such waiver shall not be deemed to be a
waiver of any subsequent breach of the same or any
other term, covenant or condition contained herein.
The acceptance of rent by Landlord shall not
constitute a waiver of any preceding breach by
Tenant of any term, covenant or condition of this
Lease, regardless of Landlord's knowledge of such
preceding breach at the time Landlord accepted such
Rent. Failure by Landlord to enforce any of the
terms, covenants or conditions of this Lease for any
length of time shall not be deemed to waive or to
decrease the right of Landlord to insist thereafter
upon strict performance by Tenant. Waiver of
Landlord of any term, covenant or condition
contained in this Lease may only be made by a
written document signed by Landlord.
NOTICES 32. Each provision of this Lease or of any applicable
governmental laws, ordinances, regulations and other
requirements with reference to the sending, mailing
or delivery of any notice or the making of any
payment by Landlord or Tenant to the other shall be
deemed to be complied with when and if the following
steps are taken:
A. All Rent and other payments required to be made
by Tenant to Landlord hereunder shall be payable to
Landlord at the address set forth in the Basic Lease
Information, or at such other address as Landlord
may specify from time to time by written notice
delivered in accordance herewith. Tenant's
obligation to pay Rent and any other amounts to
Landlord under the terms of this Lease shall not be
deemed satisfied until such Rent and other amounts
have been actually received by Landlord.
B. All notices, demands, consents and approvals
which may or are required to be given by either
party to the other hereunder shall be in writing and
shall be deemed to have been fully given when
deposited in the United States mail, certified or
registered, postage prepaid, and addressed to the
party to be notified at the address for such party
specified in the Basic Lease Information or to such
other place as the party to be notified may from
time to time designate by at least fifteen (15) days
notice to the notifying party. Tenant appoints as
its agent to receive the service of all default
notices and notice of commencement of unlawful
detainer proceedings the person in charge of or
apparently in charge of or occupying the Premises at
the time, and, if there is no such person, then such
service may be made by attaching the same on the
main entrance of the Premises.
ATTORNEYS' 33. In the event either party places the enforcement of
FEES this Lease, or any part thereof, or the collection
of any Rent due, or to become due hereunder, or
recovery of the possession of the Premises in the
hands of an attorney or files suit upon the same,
the prevailing party shall recover its reasonable
attorneys' fees and court costs.
SUCCESSORS 34. This Lease shall be binding upon and inure to the
AND ASSIGNS benefit of Landlord, its successors and assigns, and
shall be binding upon and inure to the benefit of
Tenant, its successors, and to the extent assignment
may be approved by Landlord hereunder. Tenant's
assigns.
FORCE MAJEURE 35. Whenever a period of time is herein prescribed for
action to be taken by Landlord or Tenant, Landlord
or Tenant, as relevant, shall not be liable or
responsible for, and there shall be excluded from
the computation for any such period of time, any
delays due to strike, riots, acts of God, shortages
of labor or materials, war, governmental laws,
regulations or restrictions or any other causes of
any kind whatsoever which are beyond the control of
Landlord or Tenant, as relevant.
MISCELLANEOUS 36. A. The term "Tenant" or any pronoun used in place
thereof shall indicate and include the masculine or
feminine, the singular or plural number,
individuals, firms or corporations, and their and
each of their respective successors, executors,
administrators and permitted assigns, according to
the context hereof.
B. Time is of the essence regarding this Lease and
all of its provisions.
C. This Lease shall in all respects be governed by
the laws of the State of California.
D. This Lease, together with its exhibits,
contains all the agreements of the parties hereto
and supersedes any previous negotiations.
E. There have been no representations made by the
Landlord or understandings made between the parties
other than those set forth in this Lease and its
exhibits.
F. This Lease may not be modified except by a
written instrument by the parties hereto.
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32
G. If, for any reason whatsoever, any of the provisions
hereof shall be unenforceable or ineffective, all of the
other provisions shall be and remain in full force and
effect.
ADDITIONAL
PROVISIONS 37. Additional paragraph's 38, 39, 40 & 41, Addenda to Lease
items 1 - 17. Exhibits A, B & C attached hereto and made
a part hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Lease
the day and year first above written.
"LANDLORD"
Xxxxxxx Properties, L.P.
a California limited partnership
By: Xxxxxxx Properties, Inc.
a Maryland Corporation
Its: General Partner
By: /s/ XXXX X. XXXXXX
-------------------------
Xxxx X. Xxxxxx
Its: Senior Vice President
-------------------------
Date: 12/19/95
-------------------------
"TENANT"
At Home Corporation
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx III
-------------------------
Its: Chief Executive Officer
-------------------------
Date: 12/19/95
-------------------------
Page 13
33
ADDITIONAL PARAGRAPHS TO LEASE AGREEMENT DATED DECEMBER 13,
1995, BETWEEN XXXXXXX PROPERTIES, L.P., A CALIFORNIA
LIMITED PARTNERSHIP, AS LANDLORD, AND AT HOME CORPORATION, A
DELAWARE CORPORATION, AS TENANT, FOR APPROXIMATELY 32,908
SQUARE FOOT PREMISES LOCATED AT 000 XXXXXXXXX XXXXX,
XXXXXXXX XXXX, XXXXXXXXXX.
38. TENANT IMPROVEMENTS
None. Tenant agrees to accept the Premises in "as is"
condition with no Tenant improvements to be provided
by Landlord.
39. TENANT PARKING
Lessee shall be entitled to the non-exclusive use of
one hundred thirty eight (138) parking spaces.
40. RESTORATION
At Lease termination. Tenant will not be required to
remove any of the tenant improvements existing in the
Premises at Lease Commencement.
41. RENEWAL OPTION
34
ADDENDA TO LEASE AGREEMENT DATED DECEMBER 13, 1995, BETWEEN XXXXXXX PROPERTIES,
L.P., A CALIFORNIA LIMITED PARTNERSHIP, AS LANDLORD, AND AT HOME CORPORATION, A
DELAWARE CORPORATION, AS TENANT, FOR APPROXIMATELY 32,908 SQUARE FOOT PREMISES
LOCATED AT 000 XXXXXXXXX XXXXX, XXXXXXXX XXXX, XXXXXXXXXX
ADDENDUM 1. RENT
Rent for the Premises shall be as follows:
Months 1-12:
Months 13-24:
Months 25-36:
Months 37-48:
Months 49-60:
Months 61-72:
ADDENDUM 2. ALTERATIONS
Tenant may make non structural alterations to the interior of the Premises up to
ten thousand dollars ($10,000), per annum without obtaining prior written
consent of Landlord. Such improvements shall not have an impact or cause change
to the building's structure, mechanical or plumbing systems.
ADDENDUM 3. LETTER OF CREDIT
ADDENDUM 4. ADA COMPLIANCE
Tenant shall not be required to make any structural changes or any changes which
constitute capital expenditures in order to comply with any law, ordinance, rule
or regulation unless such changes are a result of Tenant's particular use of the
Premises.
Tenant shall have the sole responsibility for complying, at Tenant's cost, with
provisions of the American with Disabilities Act of 1990 ("ADA") as it may later
be amended, with respect to the Premises and to the common areas of the Project,
where such compliance has been brought about: (i) by any alterations to the
Premises or to the common areas by the Tenant or on behalf of the Tenant, by
Landlord or otherwise, performed after the Term Commencement Date; (ii) by any
changes to Tenant's use of the Premises; or (iii) by any architectural barriers
caused by Tenant's installation of any equipment, furniture, or other personal
property on the Premises (items (i), (ii) and (iii) collectively, "Tenants ADA
Responsibilities"). Tenant shall indemnify, defend and hold Landlord, its agents
and employees harmless from and against any and all claims, damages or
liabilities arising directly or indirectly from Tenant's failure to satisfy any
of Tenant's ADA Responsibilities. Landlord shall indemnify, defend and hold
Tenant, its agents and employees harmless from and against any and all claims,
damages or liabilities arising directly or indirectly from Landlord's failure to
comply with any obligations of a landlord under the ADA, other than such claims,
damages or liabilities arising from Tenant's failure to satisfy any of Tenant's
ADA Responsibilities [REMAINDER OF PAGE ILLEGIBLE].
35
ADDENDA TO LEASE
DECEMBER 13, 1995
ADDENDUM 6. HAZARDOUS SUBSTANCES
A. TENANT INDEMNITY REGARDING HAZARDOUS SUBSTANCES
Tenant shall indemnify, defend and hold harmless Landlord, its employees,
partners, agents, assigns, licensees, servants, subsidiaries and affiliate
organizations against any and all claims, suits, loss, costs (including costs of
investigation, clean up, monitoring, restoration and reasonable attorneys'
fees); damage or liability, whether foreseeable or unforeseeable, by reason of
property damage (including diminution in the value of property of Landlord),
personal injury or death directly arising from or related to ANY HAZARDOUS
SUBSTANCE (as defined below) released, manufactured, discharged, disposed, used
or stored ON THE PREMISES BY TENANT OR TENANT'S AGENTS, EMPLOYEES, CONTRACTORS
OR ASSIGNS REGARDLESS OF WHO CAUSED THE SAME, EXCEPT FOR HAZARDOUS SUBSTANCE (i)
(A) ORIGINATING ON PROPERTY WHICH IS NOT LEASED, OWNED OR OTHERWISE USED OR
CONTROLLED BY TENANT AND (B) WHICH MIGRATED THROUGH THE AIR, GROUNDWATER OR
OTHERWISE TO THE PROJECT; OR (ii) WAS NOT CAUSED BY TENANT, ITS EMPLOYEES,
INVITEES, SUBTENANTS, AGENTS, ASSIGNEES, LICENSEES OR SERVANTS.
For the purpose of this indemnity, Hazardous Substances are defined,
collectively, as oil, flammable explosives, asbestos, radioactive materials,
hazardous wastes, toxic or contaminated substances or similar materials,
including, without limitation, any substances which are "hazardous substances",
"hazardous wastes", "hazardous materials", or "toxic substances" under
applicable environmental laws, ordinances or regulations.
The provisions of this Tenant indemnity regarding Hazardous Substances shall
survive the termination of the Lease.
B. LANDLORD INDEMNITY REGARDING HAZARDOUS MATERIALS
Landlord shall indemnify, defend and hold harmless Tenant, its officers,
employees, shareholders, parent, subsidiary and affiliate organizations and
agents to the extent of Landlord's interest in the Project, against any and all
claims, suits, loss, costs (including costs of investigation, clean up,
monitoring, restoration and reasonable attorneys' fees), damage of liability,
whether foreseeable or unforeseeable, by reason of property damage, personal
injury or death directly arising from a related to the presence of Hazardous
Substances (as defined below) in, on or about the Project immediately prior to
Tenant's first occupancy (unless caused by Tenant, its employees, invitees,
subtenants, agents, assigns, licensees or servants) or the subsequent release,
disposal, use or storage of Hazardous Substances in, on or about the Project by
Landlord, its employees, agents, assigns, licensees or servants.
For the purposes of this Indemnity Hazardous Substances are defined,
collectively, as oil, flammable explosives, asbestos, radioactive materials,
hazardous waste, toxic or contaminated substances or similar materials,
including, without limitation, any substances which are "hazardous substances",
"hazardous waste", hazardous materials" or "toxic substances" under applicable
laws, ordinances or regulations.
The provisions of this Landlord Indemnity regarding Hazardous Substances shall
survive the termination of the Lease.
ADDENDUM 7. REAL ESTATE TAX EXCLUSIONS
In addition, the following shall not constitute real property taxes for the
purpose of this Lease, and nothing contained herein shall be deemed to require
Tenant to pay any of the following: (i) any franchise, succession or transfer
taxes; (ii) interest on taxes or penalties resulting from Landlord's failure to
pay taxes; (iii) real estate taxes resulting from over standard improvements
made by other tenants.
ADDENDUM 8. BASIC OPERATING COST EXCLUSIONS
The following shall not constitute Basic Operating Costs for the purpose of this
Lease, and nothing contained herein shall be deemed to require Tenant to pay any
of the following: (i) legal fees, brokerage commissions, advertising costs and
other related expenses incurred in connection with the leasing of the Building;
(ii) damage and repairs attributable to condemnation, fire or other casualty,
covered under any insurance policy (above any "deductible" position thereof)
carried by Landlord in connection with the Building; (iii) damage and repairs
covered under any warranty or insurance policy carried by Landlord in connection
with the Building or Property; (iv) damage and repairs necessitated by the
negligence or willful misconduct of Landlord or Landlord's Landlord's employees,
contractors or agents; (v) executive salaries of Landlord; (vi) salaries of
service personnel to the extent that such service personnel perform services not
solely in connection with the management, operation, repair or maintenance of
the Building or Common Areas; (vii) Landlord's general overhead expenses not
related to the Building; (viii) payments of principal or interest on any
mortgage or other encumbrance including ground lease payments and points,
commissions and legal fees associated with financing; (ix) depreciation; (x)
legal fees, accountants' fees and other expenses incurred in connection with
disputes with Tenant or other tenants or occupants of the Building or associated
with the enforcement of any leases or defense of the Landlord's title to or
interest in
36
ADDENDA TO LEASE
DECEMBER 13, 1995
ADDENDUM 8. BASIC OPERATING COST ESTIMATES (CONTINUED)
the Building or any part thereof; (xi) costs (including permit, license and
inspection fees) incurred in renovating or otherwise improving, decorating,
painting or altering space for other tenants or other occupants or vacant space
in the Building; (xii) costs incurred due to violation by Landlord or any other
tenant in the Building, of the terms and conditions of any lease; (xiii)
charitable or political contributions; (xiv) interest, penalties or other costs
arising out of Landlord's failure to make timely payments of its obligations;
(xv) costs incurred in advertising and promotional activities for the Building.
Landlord and Tenant agree that the cost of any structural repairs or
replacements or any improvements, alterations or expenditures of a capital
nature which exceed Ten Thousand Dollars ($10,000) in cost, shall be amortized
over the useful life of such item, as determined by generally accepted
accounting principles and that Tenant shall be solely responsible for the
portion of such amortized cost coming due within the Term of this Lease.
ADDENDUM 9. INDEMNIFICATION
Landlord shall indemnify, defend by counsel reasonably satisfactory to Tenant
and hold Tenant harmless from and against any and all claims, liabilities,
judgments, causes of action, damages, costs and expenses (including, without
limitation, reasonable attorney's and experts' fees), caused by or arising in
connection with the gross negligence or willful misconduct of Landlord or
Landlord's agents, employees, contractors or invitees.
ADDENDUM 10. TENANT'S NOTICE TO LANDLORD
Tenant may give Landlord notice of any repairs that are required under the terms
of this Lease and Landlord shall proceed forthwith to effect the same with
reasonable diligence, but in no event shall Landlord commence to proceed with
repairs required later than ten (10) days after receipt of such notice.
ADDENDUM 11. EXCEPTIONS TO TENANT'S REPAIR OBLIGATIONS
In no event shall Tenant's obligation to repair under this subsection extend to
(i) damage and repairs covered under any insurance policy carried by Landlord in
connection with the Building (provided that nothing herein shall be deemed to
alter or terminate Tenant's obligation to reimburse Landlord for Tenant's
Proportionate Share of the "deductible" portion of the Landlord's property
insurance policy); (ii) damage caused in whole or in part by the negligence or
willful misconduct of Landlord or Landlord's agents, employees, invitees or
licensees; (iii) repairs covered under Basic Operating Costs; (iv) reasonable
wear and tear; (v) conditions covered under any warranties of Landlord's
contractors; or (vi) damage by fire and other casualties, or acts of
governmental authorities, or acts of God and the elements, except to the extent
such damage is caused by Tenant or Tenant's agents, employees or contractors.
ADDENDUM 12. SUBORDINATION
Notwithstanding anything to the contrary in the Lease, the effective
subordination of this Lease to any future mortgages, deeds of trust, other
security interest or leases shall be subject to the fulfillment of the
conditions precedent that the holder of such mortgage or other lien on the
Building or Property shall first have agreed in writing that so long as Tenant
is not in default, the Lease shall not be terminated by foreclosure or sale
pursuant to the terms of such mortgage or lien.
ADDENDUM 13. SECURITY DEPOSIT
Provided that Tenant is not then in default under the Lease, Landlord shall
return the Security Deposit to Tenant within thirty (30) days of the expiration
or earlier termination of the Lease.
ADDENDUM 14. BONUS RENT
If Tenant shall assign, sublease or otherwise transfer all or any portion of the
Premises to a party other than Tenant Affiliate (as defined below), Landlord and
Tenant shall evenly divide any rent or other consideration paid to Tenant in
connection with such assignment, sublease or other transfer which is in excess
of the Base Rent due under this Lease, after first deducting out for the
Tenant's account the cost of (i) broker's commission paid by Tenant with regard
to the transfer; (ii) reasonable legal fees; and (iii) the cost of improvements
made to the subleased premises by Tenant at Tenant's expense for the purpose of
subletting which, upon the expiration or earlier termination of this Lease shall
or may become the property of Landlord pursuant to the terms hereof.
ADDENDUM 15. CORPORATE TRANSFERS
Notwithstanding anything to the contrary in the Lease, the terms of Section 21.D
of the Lease shall not apply at any time that Tenant is a publicly traded
company.
37
ADDENDA TO LEASE
DECEMBER 13, 1995
ADDENDUM 16. TENANT AFFILIATES
Tenant may assign this Lease or sublet any portion of the Premises without
Landlord's consent to any of the following (i) any corporation which controls,
is controlled by or under common control with Tenant; (ii) any corporation
resulting from the merger or consolidation of Tenant and has a net worth equal
to or greater than Ten Million Dollars ($10,000,000) upon execution of the
assignment or sublease document; (iii) any person or entity which acquires all
of the assets of Tenant as a going concern of the business that is being
conducted on the Premises (collectively, "Tenant Affiliate"), provided that
such assignee assumes in full the obligations of Tenant under the Lease.
Landlord's right to terminate the Lease in response to a requested assignment
or subletting shall not apply to an assignment of the Lease or subletting of
the Premises to a Tenant Affiliate.
ADDENDUM 17. POSSESSION AND LEASE COMMENCEMENT
As of the date of this Lease Agreement, Landlord has not been notified by any
governmental authority to perform any repairs, alterations, additions or
improvements to bring this Building into compliance.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum the day
and year first above written.
"LANDLORD"
Xxxxxxx Properties, L.P.
a California limited partnership
By: Xxxxxxx Properties, Inc.
a Maryland Corporation
Its: General Partner
By: /s/ XXXX X. XXXXXX
----------------------------
Xxxx X. Xxxxxx
Its: Senior Vice President
----------------------------
Date: 12/19/95
----------------------------
"TENANT"
At Home Corporation
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx III
----------------------------
Its: Chief Executive Officer
----------------------------
Date: 12/15/95
----------------------------
