EXHIBIT 10.46
BUILDING: Wesport 17
PROPERTY: 30-0017
UNIT: 4
LEASE ID: 0117-FVCC01-01
LEASE AGREEMENT
THIS LEASE, made this 10TH DAY OF MARCH, 2003, between WESTPORT JOINT
VENTURE, A CALIFORNIA JOINT VENTURE, hereinafter called Landlord, and FIRST
VIRTUAL COMMUNICATIONS, INC., A DELAWARE CORPORATION, hereinafter called Tenant.
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby hires and takes from
Landlord those certain premises (the "Premises") outlined in Red on Exhibit A,
attached hereto and incorporated herein by this reference thereto more
particularly described as follows:
A portion of that certain 48,384+ square foot, two-story building ("Building")
located at 0000 XXXXXX XXXXXXX, XXXXX 000, XXXXXXX XXXX, XXXXXXXXXX 00000,
consisting of approximately 19,715+ SQUARE FEET OF SPACE (WITH 15,204+ SQUARE
FEET ON THE SECOND FLOOR OF THE BUILDING AND 4,511+ SQUARE FEET ON THE FIRST
FLOOR OF THE BUILDING INCLUDING TENANT'S PROPORTIONATE SHARE OF THE COMMON AREA
OF THE BUILDING). Said Premises is more particularly shown within the area
outlined in Red on Exhibit A attached hereto. The entire parcel, of which the
Premises is a part, is shown within the area outlined in Green on Exhibit A
attached. As of the Lease Commencement Date, Tenant's Premises shall contain
19,715+ square feet of space as shown in Red on Exhibit B attached hereto
("Phase I Premises"). Subject to Paragraph 46, commencing May 1, 2004, Tenant's
Premises shall be decreased to 16,183+ square feet (with 15,204+ square feet on
the second floor of the Building and 979+ square feet on the first floor of the
Building including Tenant's Proportionate Share of the Common Area of the
Building) (the "Phase II Premises") with the reduced square footage of 3,532+
shown in Blue on Exhibit B attached hereto. The Premises shall be improved by
Landlord as shown on Exhibit B and subject to Landlord making said improvements
and to Paragraph 9 ("As-Is Basis"), IS LEASED ON AN "AS-IS" BASIS, in its
present condition, and in the configuration as shown in Red on Exhibit B
attached hereto.
As used herein the Complex shall mean and include all of the land outlined in
Green in Exhibit A attached hereto, common area private roads within the
Complex, and all of the buildings, improvements, fixtures and equipment now or
hereafter situated on said land. The gross leasable area of the Building shall
be measured from outside of exterior walls to outside of exterior walls, and
shall include any atriums, covered entrances or egresses and covered building
loading areas.
Said letting and hiring is upon and subject to the terms, covenants and
conditions hereinafter set forth and Tenant covenants as a material part of the
consideration for this Lease to perform and observe each and all of said terms,
covenants and conditions. This Lease is made upon the conditions of such
performance and observance.
1. USE. Tenant shall use the Premises only in conformance with
applicable governmental laws, regulations, rules and ordinances for the purpose
of general office and storage uses necessary for Tenant to conduct Tenant's
business, provided that such uses shall be in accordance with all current and
future applicable governmental laws and ordinances and zoning restrictions, and
for no other purpose. Tenant shall not do or permit to be done in or about the
Premises or the Complex nor bring or keep or permit to be brought or kept in or
about the Premises or the Complex anything which is prohibited by or will in any
way increase the existing rate of (or otherwise affect) fire or any insurance
covering the Complex or any part thereof, or any of its contents, or will cause
a cancellation of any insurance covering the Complex or any part thereof, or any
of its contents. Tenant shall not do or permit to be done anything in, on or
about the Premises or the Complex which will in any way obstruct or interfere
with the rights of other tenants or occupants of the Complex or injure or annoy
them, or use or allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose, nor shall Tenant cause, maintain or permit
any nuisance in, on or about the Premises or the Complex. No sale by auction
shall be permitted on the Premises. Tenant shall not place any loads upon the
floors, walls, or ceiling which endanger the structure, or place any harmful
fluids or other materials in the drainage system of the Building, or overload
existing electrical or other mechanical systems. No waste materials or refuse
shall be dumped upon or permitted to remain upon any part of the Premises or
outside of the Building in which the Premises are a part, except in trash
containers placed inside exterior enclosures designated by Landlord for that
purpose or inside of the Building proper where designated by Landlord. No
materials, supplies, equipment, finished
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BUILDING: Wesport 17
PROPERTY: 30-0017
UNIT: 4
LEASE ID: 0117-FVCC01-01
products or semi-finished products, raw materials or articles of any nature
shall be stored upon or permitted to remain outside the Premises or on any
portion of the common area of the Complex. Tenant shall not place anything or
allow anything to be placed near the glass of any window, door partition or wall
which may appear unsightly from outside the Premises. No loudspeaker or other
device, system or apparatus which can be heard outside the Premises shall be
used in or at the Premises without the prior written consent of Landlord. Tenant
shall not commit or suffer to be committed any waste in or upon the Premises.
Tenant shall indemnify, defend and hold Landlord harmless against any loss,
expense, damage, reasonable attorneys' fees, or liability arising out of failure
of Tenant to comply with any applicable law for which Tenant is obligated to
comply under the terms of this Lease. Tenant shall comply with any covenant,
condition, or restriction ("CC&R's") affecting the Premises. The provisions of
this Paragraph are for the benefit of Landlord only and shall not be construed
to be for the benefit of any Tenant or occupant of the Complex.
2. TERM.
A. The Term of this Lease shall be for a period of TEN (10) YEARS
(unless sooner terminated as hereinafter provided) and, subject to Paragraphs
2.B and 3, SHALL COMMENCE ON THE 1ST DAY OF MAY , 2003 (THE "COMMENCEMENT DATE")
AND END ON THE 30TH DAY OF APRIL, 2013.
B. Possession of the Premises shall be tendered by Landlord to
Tenant and the Term of the Lease shall commence on May 1, 2003, or as otherwise
agreed in writing.
It is agreed in the event said Lease commences on a date other than the
first day of the month the Term of the Lease will be extended to account for the
number of days in the partial month. The Basic Rent during the resulting partial
month will be pro-rated (for the number of days in the partial month) at the
Basic Rent rate scheduled for the projected Commencement Date as shown in
Paragraph 4.A.
3. POSSESSION. If Landlord, for any reason whatsoever, cannot deliver
possession of said Premises to Tenant at the commencement of the said Term, as
hereinbefore specified, this Lease shall not be void or voidable; no obligation
of Tenant shall be affected thereby; nor shall Landlord or Landlord's agents be
liable to Tenant for any loss or damage resulting therefrom; but in that event
the commencement and termination dates of the Lease, and all other dates
affected thereby shall be revised to conform to the date of Landlord's delivery
of possession, as specified in Paragraph 2.B above. The above is, however,
subject to the provision that the period of delay of delivery of the Premises
shall not exceed thirty (30) days from the date this Lease is executed by all
parties hereto (except those delays caused by Acts of God, strikes, war,
utilities, governmental bodies, weather, unavailable materials, and delays
beyond Landlord's control ("Force Majeure Delays") shall be excluded in
calculating such period) in which instance Tenant, at its option, may, by
written notice to Landlord, terminate this Lease; provided Tenant submits said
notice to Landlord prior to the expiration of said thirty (30) day period as
extended by Force Majeure Delays.
4. RENT.
A. Basic Rent. Tenant agrees to pay to Landlord at such place as
Landlord may designate without deduction, offset, prior notice, or demand, and
Landlord agrees to accept as Basic Rent for the Leased Premises the total sum of
SEVEN MILLION SIX HUNDRED FORTY-SEVEN THOUSAND THREE HUNDRED SEVENTY-THREE AND
20/100 DOLLARS ($7,647,373.20) in lawful money of the United States of America,
payable as follows:
Upon Tenant's execution of this Lease, the sum of ONE HUNDRED
TWENTY-SEVEN THOUSAND FOUR HUNDRED FIFTY-SIX AND 22/100 DOLLARS ($127,456.22)
shall be due, representing the Basic Rent for the month of May 2003 ($56,445.76)
and the Basic Rent for the month of April 2013 ($71,010.46).
On June 1, 2003, the sum of FIFTY-SIX THOUSAND FOUR HUNDRED FORTY-FIVE
AND 76/100 DOLLARS ($56,445.76) shall be due, and a like sum due on the first
day of each month thereafter, through and including April 1, 2004.
On May 1, 2004, the sum of FIFTY-EIGHT THOUSAND SIXTY-FOUR AND 06/100
DOLLARS ($58,064.06) shall be due, and a like sum due on the first day of each
month thereafter, through and including April 1, 2005.
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Multi Tenant/Complex Page 2 of 27
BUILDING: Wesport 17
PROPERTY: 30-0017
UNIT: 4
LEASE ID: 0117-FVCC01-01
On May 1, 2005, the sum of FIFTY-NINE THOUSAND SIX HUNDRED EIGHTY-TWO
AND 36/100 DOLLARS ($59,682.36) shall be due, and a like sum due on the first
day of each month thereafter, through and including April 1, 2006.
On May 1, 2006, the sum of SIXTY-ONE THOUSAND THREE HUNDRED AND 66/100
DOLLARS ($61,300.66) shall be due, and a like sum due on the first day of each
month thereafter, through and including April 1, 2007.
On May 1, 2007, the sum of SIXTY-TWO THOUSAND NINE HUNDRED EIGHTEEN AND
96/100 DOLLARS ($62,918.96) shall be due, and a like sum due on the first day of
each month thereafter, through and including April 1, 2008.
On May 1, 2008, the sum of SIXTY-FOUR THOUSAND FIVE HUNDRED
THIRTY-SEVEN AND 26/100 DOLLARS ($64,537.26) shall be due, and a like sum due on
the first day of each month thereafter, through and including April 1, 2009.
On May 1, 2009, the sum of SIXTY-SIX THOUSAND ONE HUNDRED FIFTY-FIVE
AND 56/100 DOLLARS ($66,155.56) shall be due, and a like sum due on the first
day of each month thereafter, through and including April 1, 2010.
On May 1, 2010, the sum of SIXTY-SEVEN THOUSAND SEVEN HUNDRED
SEVENTY-THREE AND 86/100 DOLLARS ($67,773.86) shall be due, and a like sum due
on the first day of each month thereafter, through and including April 1, 2011.
On May 1, 2011, the sum of SIXTY-NINE THOUSAND THREE HUNDRED NINETY-TWO
AND 16/100 DOLLARS ($69,392.16) shall be due, and a like sum due on the first
day of each month thereafter, through and including April 1, 2012.
On May 1, 2012, the sum of SEVENTY-ONE THOUSAND TEN AND 46/100 DOLLARS
($71,010.46) shall be due, and a like sum due on the first day of each month
thereafter, through and including March 1, 2013; or until the entire aggregate
sum of SEVEN MILLION SIX HUNDRED FORTY-SEVEN THOUSAND THREE HUNDRED
SEVENTY-THREE AND 20/100 DOLLARS ($7,647,373.20) has been paid.
B. Time for Payment. Full monthly Rent is due in advance on the
first day of each calendar month. In the event that the Term of this Lease
commences on a date other than the first day of a calendar month, on the date of
commencement of the Term hereof Tenant shall pay to Landlord as Rent for the
period from such date of commencement to the first day of the next succeeding
calendar month that proportion of the monthly Rent hereunder for the number of
days between such date of commencement and the first day of the next succeeding
calendar month. In the event that the Term of this Lease for any reason ends on
a date other than the last day of a calendar month, on the first day of the last
calendar month of the Term hereof Tenant shall pay to Landlord as Rent for the
period from said first day of said last calendar month to and including the last
day of the Term hereof that proportion of the monthly Rent hereunder for the
number of days between said first day of said last calendar month and the last
day of the Term hereof.
C. Late Charge. Notwithstanding any other provision of this
Lease, if Tenant does not pay to Landlord any payment of Rent as set forth in
this Paragraph 4 when due, or any part thereof, Tenant agrees to pay Landlord,
in addition to the delinquent Rent due, a late charge for each Rent payment not
received by Landlord within ten (10) days of the due date ("Late Charge"). Said
Late Charge shall equal ten percent (10%) of each Rent payment not received by
Landlord within such ten (10) day period. Said Late Charge shall be paid by
Tenant within thirty (30) days after presentation of an invoice from Landlord or
Landlord's agent setting forth the amount of said Late Charge. Notwithstanding
anything to the contrary herein, Landlord's failure to issue a Late Charge
invoice in the month of any late payment shall not be considered a waiver of
Landlord's right to collect said Late Charge.
D. Additional Rent. Beginning with the Commencement Date of the
Term of this Lease, Tenant shall pay to Landlord or to Landlord's designated
agent in addition to the Basic Rent and as Additional Rent the following:
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BUILDING: Wesport 17
PROPERTY: 30-0017
UNIT: 4
LEASE ID: 0117-FVCC01-01
(a) Tenant's Proportionate Share of all Taxes relating to
the Complex and Premises as set forth in Paragraph 13, and
(b) Tenant's Proportionate Share of all insurance
premiums and deductibles relating to the Complex and Premises, as set forth in
Paragraph 17, and
(c) Tenant's Proportionate Share of expenses for the
operation, management, maintenance, and repair of the Building (including common
areas of the Building) and Common Areas of the Complex in which the Premises are
located as set forth in Paragraph 7, and
(d) All charges, costs and expenses, which Tenant is
required to pay hereunder, together with all interest and penalties, costs and
expenses including reasonable attorneys' fees and legal expenses, that may
accrue thereto in the event of Tenant's failure to pay such amounts, and all
damages, reasonable costs and expenses which Landlord may incur by reason of
default of Tenant or failure on Tenant's part to comply with the terms of this
Lease. In the event of nonpayment by Tenant of Additional Rent, Landlord shall
have all the rights and remedies with respect thereto as Landlord has for
nonpayment of Rent.
The Additional Rent due hereunder shall be paid to Landlord or
Landlord's agent (i) within five days for taxes and insurance and within thirty
(30) days for all other Additional Rent items after presentation of invoice from
Landlord or Landlord's agent setting forth such Additional Rent (notwithstanding
anything to the contrary herein, Landlord shall not be required to submit
ongoing monthly statements to Tenant reflecting amounts owed as Additional Rent)
and/or (ii) at the option of Landlord, Tenant shall pay to Landlord monthly, in
advance, Tenant's prorata share of an amount estimated by Landlord to be
Landlord's approximate average monthly expenditure for such Additional Rent
items, which estimated amount shall be reconciled (i) within one hundred twenty
(120) days of the end of each calendar year and (ii) within 120 days of the
Lease Termination Date (or as soon thereafter as reasonably possible if, for
whatever reason, the Landlord cannot complete the reconciliation within said 120
day periods) or more frequently if Landlord elects to do so at Landlord's sole
and absolute discretion as compared to Landlord's actual expenditure for said
Additional Rent items, with Tenant paying to Landlord, upon demand, any amount
of actual expenses expended by Landlord in excess of said estimated amount, or
Landlord crediting to Tenant (providing Landlord may withhold any amount thereof
required to cure Tenant's default in the performance of any of the terms,
covenants and conditions of this Lease) any amount of estimated payments made by
Tenant in excess of Landlord's actual expenditures for said Additional Rent
Items. Within thirty (30) days after receipt of Landlord's reconciliation,
Tenant shall have the right, at Tenant's sole expense, to audit, at a mutually
convenient time at Landlord's office, Landlord's records specifically limited to
the foregoing expenses. Such audit must be conducted by Tenant or an independent
nationally recognized accounting firm that is not being compensated by Tenant or
other third party on a contingency fee basis. Tenant shall submit to Landlord a
complete copy of said audit at no expense to Landlord and a written notice
stating the results of said audit, and if such notice by Tenant and the
respective audit reveals that Landlord has overcharged Tenant, and the audit is
not challenged by Landlord, the amount overcharged shall be credited to Tenant's
account within thirty (30) days after completion of Landlord's review and
approval of said audit. The audit rights of Tenant under this Paragraph 4.D are
granted for Tenant's personal benefit and may not be assigned or transferred by
Tenant, either voluntarily or by operation of law, in any manner whatsoever. In
the event that Landlord consents to an assignment under Paragraph 21, the audit
rights herein shall be void and of no force and effect, whether or not Tenant
shall have purported to exercise its right to audit Landlord's records prior to
such assignment. Notwithstanding anything to the contrary herein, no subtenant
shall have any right to conduct an audit of Landlord's books and/or records.
Landlord may if so requested by Tenant, but shall not be required to,
provide Tenant with copies of individual invoices related to the foregoing
actual expenses, either by facsimile or by U.S. mail; however, in no event shall
Landlord be obligated to provide duplicate copies of any invoice or other Lease
documentation to Tenant and/or Tenant's representative (if any) for an audit of
Tenant's records outside of Landlord's office.
E. Fixed Management Fee. Beginning with the Commencement Date of
the Term of this Lease, Tenant shall pay to Landlord, in addition to the Basic
Rent and Additional Rent, a fixed monthly management fee ("Management Fee")
equal to three percent (3%) of the Basic Rent due for each month during the
Lease Term. Tenant shall be responsible for calculating the monthly Management
Fee based on the Basic Rent schedule shown in Paragraph 4.A above, and for
paying said Management Fee by the first
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BUILDING: Wesport 17
PROPERTY: 30-0017
UNIT: 4
LEASE ID: 0117-FVCC01-01
day of each month during the Term of this Lease. Tenant's failure to pay the
monthly Management Fee by the due date will result in a Late Charge being
assessed pursuant to the terms of Paragraph 4.C above. SAID MANAGEMENT FEE SHALL
BE PAID BY TENANT TO A&P PROPERTY MANAGEMENT COMPANY AT 0000 XXXXXXX XXXXXXX
XXXX., XXXXX 000, XXXXX XXXXX, XXXXXXXXXX 00000.
The reference to "Rent" in this Paragraph 4 includes Basic Rent,
Additional Rent, and fixed Management Fee. The respective obligations of
Landlord and Tenant under this Paragraph shall survive the expiration or other
termination of the Term of this Lease, and if the Term hereof shall expire or
shall otherwise terminate on a day other than the last day of a calendar year,
the actual Additional Rent incurred for the calendar year in which the Term
hereof expires or otherwise terminates shall be determined and settled on the
basis of the statement of actual Additional Rent for such calendar year and
shall be prorated in the proportion which the number of days in such calendar
year preceding such expiration or termination bears to 365.
F. Place of Payment of Rent. All Rent hereunder, except for the
Management Fee referenced in Paragraph 4.E above, shall be paid to Landlord at
the office of Landlord at: WESTPORT JOINT VENTURE, 0000 XXXXXXX XXXXXXX XXXX.,
XXXXX 000, XXXXX XXXXX, XX 00000, or to such other person or to such other place
as Landlord may from time to time designate in writing.
G. Security Deposit. Concurrently with Tenant's execution of this
Lease, Tenant shall deposit with Landlord the sum of ONE HUNDRED FORTY-TWO
THOUSAND TWENTY AND 92/100 DOLLARS ($142,020.92). Said sum shall be held by
Landlord as a Security Deposit for the faithful performance by Tenant of all of
the terms, covenants, and conditions of this Lease to be kept and performed by
Tenant during the Term hereof. If Tenant defaults with respect to any provision
of this Lease, including, but not limited to, the provisions relating to the
payment of Rent and any of the monetary sums due herewith, Landlord may (but
shall not be required to) use, apply or retain all or any part of this Security
Deposit for the payment of any other amount which Landlord may spend by reason
of Tenant's default or to compensate Landlord for any other loss or damage which
Landlord may suffer by reason of Tenant's default. If any portion of said
Deposit is so used or applied, Tenant shall, within five (5) days after written
demand therefor, deposit cash with Landlord in the amount sufficient to restore
the Security Deposit to its original amount. Tenant's failure to do so shall be
a material breach of this Lease. Landlord shall not be required to keep this
Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on such Deposit. If Tenant fully and faithfully performs
every provision of this Lease to be performed by it, the Security Deposit or any
balance thereof shall be returned to Tenant (or at Landlord's option, to the
last assignee of tenant's interest hereunder) at the expiration or earlier
termination of the Lease Term and after Tenant has vacated the Premises;
provided, however, that Landlord may withhold therefrom the amount necessary to
cover the cost of restoration of the Premises if Tenant fails to do so as
required under Lease Paragraph 8 and to cure any then uncured default by Tenant
under this Lease. In the event of termination of Landlord's interest in this
Lease, Landlord shall transfer said Deposit to Landlord's successor in interest
whereupon Tenant agrees to release Landlord from liability for the return of
such Deposit or the accounting therefor. Tenant hereby waives the protection of
Section 1950.7 of the California Civil Code.
5. RULES AND REGULATIONS AND COMMON AREA. Subject to the terms and
conditions of this Lease and such Rules and Regulations as Landlord may from
time to time prescribe, Tenant and Tenant's employees, invitees and customers
shall, in common with other occupants of the Complex in which the Premises are
located, and their respective employees, invitees and customers, and others
entitled to the use thereof, have the non-exclusive right to use the access
roads, parking areas, and facilities provided and designated by Landlord for the
general use and convenience of the occupants of the Complex in which the
Premises are located, which areas and facilities are referred to herein as
"Common Area". This right shall terminate upon the termination of this Lease.
Landlord reserves the right from time to time to make changes in the shape,
size, location, amount and extent of Common Area. Landlord further reserves the
right to promulgate such reasonable Rules and Regulations relating to the use of
the Common Area, and any part or parts thereof, as Landlord may deem appropriate
for the best interests of the occupants of the Complex. The Rules and
Regulations shall be binding upon Tenant upon delivery of a copy of them to
Tenant, and Tenant shall abide by them and cooperate in their observance. Such
Rules and Regulations may be amended by Landlord from time to time, with or
without advance notice, and all amendments shall be effective upon delivery of a
copy to Tenant. Landlord shall not be responsible to Tenant for the
non-performance by any other tenant or occupant of the Complex of any of said
Rules and Regulations.
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BUILDING: Wesport 17
PROPERTY: 30-0017
UNIT: 4
LEASE ID: 0117-FVCC01-01
Landlord shall operate, manage, and maintain the Common Area. The
manner in which the Common Area shall be maintained and the expenditures for
such maintenance shall be at the discretion of Landlord.
6. PARKING. Tenant shall initially (during occupancy of Phase I
Premises) have the right to use sixty-six (66) parking spaces; effective May 1,
2004 (the Commencement Date for the Phase II Premises) Tenant shall have the
right to use fifty-four (54) parking spaces in the common parking areas of the
Complex, which common parking area may be used by Tenant in common with other
tenants or occupants of the Complex. Tenant agrees that Tenant, Tenant's
employees, agents, representatives and/or invitees shall not use parking spaces
in excess of said sixty-six (66) spaces while (during occupancy of Phase I
Premises) and fifty-four (54) spaces (during occupancy of Phase II Premises)
allocated to Tenant hereunder. Landlord shall have the right, at Landlord's sole
discretion, to specifically designate the location of Tenant's parking spaces
within the common parking areas of the Complex in the event of a dispute among
the tenants occupying the Building and/or Complex referred to herein, in which
event Tenant agrees that Tenant, Tenant's employees, agents, representatives
and/or invitees shall not use any parking spaces other than those parking spaces
specifically designated by Landlord for Tenant's use. Said parking spaces, if
specifically designated by Landlord to Tenant, may be relocated by Landlord at
any time, and from time to time, Landlord reserves the right, at Landlord's sole
discretion, to rescind any specific designation of parking spaces, thereby
returning Tenant's parking spaces to the common parking area. Landlord shall
give Tenant written notice of any change in Tenant's parking spaces. Tenant
shall not, at any time, park or permit to be parked, any trucks or vehicles
adjacent to the loading areas so as to interfere in any way with the use of such
areas, nor shall Tenant at any time park or permit the parking of Tenant's
trucks or other vehicles or the trucks and vehicles of Tenant's suppliers or
others, in any portion of the common area not designated by Landlord for such
use by Tenant. Tenant shall not park nor permit to be parked, any inoperative
vehicles or equipment on any portion of the common parking area or other common
areas of the Complex. Tenant agrees to assume responsibility for compliance by
its employees with the parking provisions contained herein. If Tenant or its
employees park in other than such designated parking areas, then Landlord may
charge Tenant, as an additional charge, and Tenant agrees to pay, Ten Dollars
($10.00) per day for each day or partial day each such vehicle is parked in any
area other than that designated. Tenant hereby authorizes Landlord at Tenant's
sole expense to tow away from the Complex any vehicle belonging to Tenant or
Tenant's employees parked in violation of these provisions, or to attach
violation stickers or notices to such vehicles. Tenant shall use the parking
spaces for vehicle parking only and shall not use the parking areas for storage.
7. EXPENSES OF OPERATION, MANAGEMENT, AND MAINTENANCE OF THE COMMON
AREAS OF THE COMPLEX. As referenced in Paragraph 5 ("Rules and Regulations and
Common Area"), Landlord shall operate, manage and maintain the Common Area of
the Building, and as Additional Rent and in accordance with Paragraph 4.D of
this Lease, Tenant shall pay to Landlord Tenant's Proportionate Share (which
Proportionate Share shall be allocated to the Leased Premises by square footage
(Tenant's initial Proportionate Share (for the Phase I Premises) as a percentage
of the Building is 40.75% (19,715+ square foot Leased Premises divided by
48,384+ square foot Building); Tenant's Proportionate Share effective May 1,
2004 (the Commencement Date for the Phase II Premises) as a percentage of the
Building is 33.45% (16,183+ square foot Leased Premises divided by 48,384+
square foot Building) or other equitable basis, as calculated by Landlord) of
all expenses of operation, management, maintenance and repair of the Common
Areas of the Complex including, but not limited to, license, permit, and
inspection fees; security; utility charges associated with exterior landscaping
and lighting (including water and sewer charges); all charges incurred in the
maintenance and replacement of landscaped areas, lakes, private roads within the
Complex and roads with reciprocal easement areas, parking lots and paved areas
(including repair, replacement, resealing and restriping), sidewalks, driveways;
maintenance, repair, and replacement of all fixtures and electrical, mechanical
and plumbing systems; structural elements and exterior surfaces of the
buildings; salaries and employees benefits of personnel and payroll taxes
applicable thereto; supplies, materials, equipment and tools; the cost of
capital expenditures which have the effect of reducing operating expenses,
provided, however, that in the event Landlord makes such capital improvements,
Landlord may amortize its investment in said improvements (together with
interest at the rate of fifteen percent (15%) per annum on the unamortized
balance) as an operating expense in accordance with standard accounting
practices, provided, that such amortization is not at a rate greater than the
anticipated savings in the operating expenses.
"Additional Rent" as used herein shall not include Landlord's debt
repayments, interest on charges; expenses directly or indirectly incurred by
Landlord for the benefit of any other tenant; cost for
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BUILDING: Wesport 17
PROPERTY: 30-0017
UNIT: 4
LEASE ID: 0117-FVCC01-01
the installation of partitioning or any other tenant improvements; cost of
attracting tenants; depreciation; interest, or executive salaries.
As Additional Rent and in accordance with Paragraph 4.D of this Lease, Tenant
shall pay its Proportionate Share, which Proportionate Share shall be allocated
to the Leased Premises by square footage (Tenant's initial Proportionate Share
(for the Phase I Premises) as a percentage of the Building is 40.75% (19,715+
square foot Leased Premises divided by 48,384+ square foot Building); Tenant's
Proportionate Share effective May 1, 2004 (the Commencement Date for the Phase
II Premises) as a percentage of the Building is 33.45% (16,183+ square foot
Leased Premises divided by 48,384+ square foot Building) or other equitable
basis, as calculated by Landlord), of the cost of operation (including common
utilities), management, maintenance, and repair of the Building (including
structural and common areas such as lobbies, restrooms, janitor's closets,
hallways, elevators, mechanical and telephone rooms, stairwells, entrances,
spaces above the ceilings and janitorization of said common areas) in which the
Premises are located. The maintenance items herein referred to include, but are
not limited to, all windows, window frames, plate glass, glazing, truck doors,
main plumbing systems of the Building (such as water drain lines, sinks,
toilets, faucets, drains, showers and water fountains), main electrical systems
(such as panels and conduits), heating and air-conditioning systems (such as
compressors, fans, air handlers, ducts, boilers, heaters), structural elements
and exterior surfaces of the Building; store fronts, roof, downspouts, Building
common area interiors (such as wall coverings, window coverings, floor coverings
and partitioning), ceilings, Building exterior doors, skylights (if any),
automatic fire extinguishing systems, and elevators (if any); license, permit
and inspection fees; security, supplies, materials, equipment and tools; the
cost of capital expenditures which have the effect of reducing operating
expenses, provided, however, that in the event Landlord makes such capital
improvements, Landlord may amortize its investment in said improvements
(together with interest at the rate of fifteen (15%) percent per annum on the
unamortized balance) as an operating expense in accordance with standard
accounting practices, provided, that such amortization is not at a rate greater
than the anticipated savings in the operating expenses. Tenant hereby waives all
rights hereunder, and benefits of, subsection 1 of Section 1932 and Sections
1941 and 1942 of the California Civil Code and under any similar law, statute or
ordinance now or hereafter in effect.
Notwithstanding anything to the contrary above, Tenant shall be responsible for
maintaining the second floor Common Areas, including but not limited to the
lobby, the restrooms and the common break room, (collectively "Second Floor
Common Area") until such time as all or a portion of the remaining vacant space
is leased by Landlord to one or more third party tenants. Once any of the second
floor space is so leased to a third party tenant, Landlord shall assume
responsibility for the maintenance of the Second Floor Common Area and Tenant
shall pay Landlord its Proportionate Share of the costs of said maintenance as
referenced in this Paragraph 7.
8. ACCEPTANCE AND SURRENDER OF PREMISES. By entry hereunder, Tenant
accepts the Premises as being in good and sanitary order, condition and repair
and accepts the Building and improvements included in the Premises in their
present condition and without representation or warranty by Landlord as to the
condition of such Building or as to the use or occupancy which may be made
thereof. Any exceptions to the foregoing must be by written agreement executed
by Landlord and Tenant. Tenant agrees on the last day of the Lease Term, or on
the sooner termination of this Lease, to surrender the Premises promptly and
peaceably to Landlord in good condition and repair (damage by Acts of God, fire,
normal wear and tear excepted), with all interior walls painted, or cleaned so
that they appear freshly painted, and repaired or replaced, if damaged; all
floors cleaned and waxed; all carpets cleaned and shampooed; all broken, marred
or nonconforming acoustical ceiling tiles replaced; all windows washed; the air
conditioning and heating systems within the non-common areas of the Premises
serviced by a reputable and licensed service firm and in good operating
condition (provided the maintenance of such equipment has been the Tenant's
responsibility during the Term of this Lease) and repair; the plumbing and
electrical systems and lighting within the non-common areas of the Premises in
good order and repair, including replacement of any burned out or broken light
bulbs or ballasts (and Tenant shall pay Landlord for Tenant's Proportionate
Share of the cost to insure that all Common Area features and systems are in
good operating condition and repair, including the lawn and shrubs (including
the replacement of any dead or damaged plantings), the sidewalk, driveways and
parking areas); together with all alterations, additions, and improvements which
may have been made, in, to, or on the Premises (except moveable trade fixtures
installed at the expense of Tenant) except that Tenant shall ascertain from
Landlord within thirty (30) days before the end of the Term of this Lease
whether Landlord desires to have the Premises or any part or parts thereof
restored to their condition and configuration as when the Premises were
delivered to Tenant and if Landlord shall so desire, then Tenant shall either
(i) pay to
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Landlord a fee in an amount equal to (a) Landlord's estimated cost to restore
the Premises to the configuration and condition that existed when the Premises
were delivered Tenant plus (b) an amount equal to the daily prorated Basic Rent
due for the last month of the Lease Term times the number of days Landlord
estimates are required to complete said restoration or (ii) Tenant shall restore
said Premises or such part or parts thereof before the end of this Lease at
Tenant's sole cost and expense. In the event Landlord requires Tenant to pay for
the cost of the restoration, the fee shall be paid by Tenant to Landlord
regardless of whether or not Landlord elects to restore all or part of said
Premises. In the event Tenant is required to complete the restoration and said
restoration is not completed prior to the Lease Termination Date, Tenant
acknowledges that Tenant shall enter into a Hold Over period pursuant to the
terms of Lease Paragraph 30 ("Holding Over") and Tenant shall automatically be
liable to Landlord for the monthly Hold Over Basic Rent and all other Additional
Rent until said restoration is completed by Tenant. Prior to the Lease
Termination Date, as part of the surrender of Premises procedures, Landlord will
have the Building systems inspected, at Tenant's sole cost and expense,
including, but not limited to the HVAC system, plumbing systems and roof, and
Tenant shall be responsible for its Proportionate Share (as reasonably
determined by Landlord) of all repairs noted on said inspection reports. Tenant,
on or before the end of the Term or sooner termination of this Lease, shall
remove all of Tenant's personal property and trade fixtures from the Premises,
and all property not so removed on or before the end of the Term or sooner
termination of this Lease shall be deemed abandoned by Tenant and title to same
shall thereupon pass to Landlord without compensation to Tenant. Landlord may,
upon termination of this Lease, remove all moveable furniture and equipment so
abandoned by Tenant, at Tenant's sole cost, and repair any damage caused by such
removal at Tenant's sole cost. If the Premises be not surrendered at the end of
the Term or sooner termination of this Lease, Tenant shall indemnify Landlord
against loss or liability resulting from the delay by Tenant in so surrendering
the Premises including, without limitation, any claims made by any succeeding
Tenant founded on such delay. Nothing contained herein shall be construed as an
extension of the Term hereof or as a consent of Landlord to any holding over by
Tenant. The voluntary or other surrender of this Lease or the Premises by Tenant
or a mutual cancellation of this Lease shall not work as a merger and, at the
option of Landlord, shall either terminate all or any existing subleases or
subtenancies or operate as an assignment to Landlord of all or any such
subleases or subtenancies.
9. "AS-IS" BASIS. Except as may be noted in this Paragraph 9 and in
Paragraph 7 ("Expenses of Operation, Management, and Maintenance of the Common
Areas of the Complex"), and subject to Landlord demising the Premises by
constructing the doors and walls highlighted in Yellow on Exhibit B attached
hereto, it is hereby agreed that the Premises leased hereunder is leased
strictly on an "as-is" basis and in its present condition, and in the
configuration as shown on Exhibit B attached hereto, and by reference made a
part hereof. Except as noted herein, it is specifically agreed between the
parties that Landlord after Landlord makes the interior improvements as shown on
Exhibit B, Landlord shall not be required to make, nor be responsible for any
cost, in connection with any repair, restoration, and/or improvement to the
Premises in order for this Lease to commence, or thereafter, throughout the Term
of this Lease. Notwithstanding anything to the contrary within this Lease,
Landlord makes no warranty or representation of any kind or nature whatsoever as
to the condition or repair of the Premises, nor as to the use or occupancy which
may be made thereof.
10. ALTERATIONS AND ADDITIONS. Tenant shall not make, or suffer to be
made, any alteration or addition to the Premises, or any part thereof, without
the written consent of Landlord first had and obtained by Tenant (such consent
not to be unreasonably withheld), and any addition to, or alteration of, the
Premises, except moveable furniture and trade fixtures, shall at once become a
part of the Premises and belong to Landlord. Any such alterations and/or
additions shall be paid for one hundred percent (100%) by Tenant. Landlord
reserves the right to approve all contractors and mechanics proposed by Tenant
to make such alterations and additions. As a condition to Landlord granting its
consent to any alterations, Tenant shall deliver plans and specifications for
Landlord's review and approval, and within five business days of completion of
said alterations, Tenant shall deliver to Landlord an original 1/8" scaled sepia
or an other electronic format as solely determined by Landlord. Tenant shall
retain title to all moveable furniture and trade fixtures placed in the
Premises. All heating, lighting, electrical, air conditioning, security systems,
floor to ceiling partitioning, drapery, carpeting, and floor installations made
by Tenant, together with all property that has become an integral part of the
Premises, shall not be deemed trade fixtures. Tenant agrees that it will not
proceed to make such alteration or additions, without having obtained consent
from Landlord to do so, and until five (5) business days from the receipt of
such consent, in order that Landlord may post appropriate notices to avoid any
liability to contractors or material suppliers for payment for Tenant's
improvements. Tenant will at all times permit such notices to be posted and to
remain posted until the completion of work. As a condition of Landlord's consent
to any alterations or improvements (collectively "Alterations") to the Premises,
after Landlord provides written
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consent to Alterations and prior to any work commencing on the Alterations,
Tenant shall secure and provide to Landlord at Tenant's own cost and expense,
completion and lien indemnity letters of credit, satisfactory to Landlord, (i)
in the amount of one hundred fifty percent (150%) of the cost to fund the
original construction of any alterations and (ii) in the amount of one hundred
fifty percent (150%) of the cost to fund the subsequent cost of the removal of
said alterations and the restoration of the Premises at the Lease Termination
Date ("Performance Letters of Credit"). Said Performance Letters of Credit shall
be kept in place for (i) sixty (60) days after the completion of the original
construction of said alterations and (ii) the latter of a period of (a) sixty
(60) days after the Lease Termination Date or (b) sixty (60) days after the
completion of the restoration work. Tenant further covenants and agrees that any
mechanic's lien filed against the Premises for work claimed to have been done
for, or materials claimed to have been furnished to Tenant, will be discharged
by Tenant, by bond or otherwise, within ten (10) days after notice of filing
thereof, at the cost and expense of Tenant. ANY EXCEPTIONS TO THE FOREGOING MUST
BE MADE IN WRITING AND EXECUTED BY BOTH LANDLORD AND TENANT. Notwithstanding
anything to the contrary herein, under no circumstances shall Tenant be
authorized to penetrate the soil to a depth that exceeds three and one-half feet
from the uppermost surface of the soil.
11. TENANT MAINTENANCE. Tenant shall, at its sole cost and expense,
keep and maintain the Premises (including appurtenances) and every part thereof
in a high standard of maintenance and repair, and in good and sanitary
condition. Tenant's maintenance and repair responsibilities herein referred to
include, but are not limited to, janitorization, plumbing systems within the
non-common areas of the Premises (such as water and drain lines, sinks),
electrical systems within the non-common areas of the Premises (such as outlets,
lighting fixtures, lamps, bulbs, tubes, ballasts), heating and air-conditioning
controls within the non-common areas of the Premises (such as mixing boxes,
thermostats, time clocks, supply and return grills), non-common elevators (if
any), and all interior improvements within the Premises including but not
limited to: wall coverings, window coverings, acoustical ceilings, vinyl tile,
carpeting, partitioning, doors (both interior and exterior, including closing
mechanisms, latches, locks), skylights (if any), automatic fire extinguishing
systems, and all other interior improvements of any nature whatsoever. Tenant
agrees to provide carpet xxxxxxx under all rolling chairs or to otherwise be
responsible for wear and tear of the carpet caused by such rolling chairs if
such wear and tear exceeds that caused by normal foot traffic in surrounding
areas. Areas of excessive wear shall be replaced at Tenant's sole expense upon
Lease termination. Tenant hereby waives all rights hereunder, and benefits of,
subsection 1 of Section 1932 and Sections 1941 and 1942 of the California Civil
Code and under any similar law, statute or ordinance now or hereafter in effect.
12. UTILITIES OF THE BUILDING IN WHICH THE PREMISES ARE LOCATED. As
Additional Rent and in accordance with Paragraph 4.D of this Lease Tenant shall
pay its Proportionate Share (calculated based on (i) Tenant's Premises square
footage as a percentage of the total square footage leased to Tenant and any
other third party tenants in the Building or (ii) other equitable basis as
calculated by Landlord) of the cost of all utility charges such as water, gas,
electricity, sewer service, waste pick-up and any other utilities, materials or
services furnished directly to the Building in which the Premises are located,
including, without limitation, any temporary or permanent utility surcharge or
other exactions whether or not hereinafter imposed. Notwithstanding anything to
the contrary herein, in the event any utility charges apply only to the Premises
leased by Tenant, Tenant shall place such utilities in Tenant's name and shall
pay the related costs directly to the utility company(ies).
Landlord shall not be liable for and Tenant shall not be entitled to any
abatement or reduction of rent by reason of any interruption or failure of
utility services to the Premises when such interruption or failure is caused by
accident, breakage, repair, strikes, lockouts, or other labor disturbances or
labor disputes of any nature, or by any other cause, similar or dissimilar,
beyond the reasonable control of Landlord.
Provided that Tenant is not in default (and if in default, Tenant's right to
cure said default has not expired) in the performance or observance of any of
the terms, covenants or conditions of this Lease to be performed or observed by
it, Landlord shall furnish to the Premises between the hours of 8:00 am and 6:00
pm, Mondays through Fridays (holidays excepted) and subject to the rules and
regulations of the Common Area hereinbefore referred to, reasonable quantities
of water, gas and electricity suitable for the intended use of the Premises and
heat and air-conditioning required in Landlord's judgment for the comfortable
use and occupation of the Premises for such purposes. Tenant agrees that at all
times it will cooperate fully with Landlord and abide by all regulations and
requirements that Landlord may prescribe for the proper functioning and
protection of the Building heating, ventilating and air-conditioning systems.
Whenever heat generating machines, equipment, or any other devices (including
exhaust fans) are used in the Premises by Tenant which affect the temperature
otherwise maintained by the air-
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conditioning system, Landlord shall have the right to install supplementary
air-conditioning units in the Premises and the cost thereof, including the cost
of installation and the cost of operation and maintenance thereof, shall be paid
by Tenant to Landlord upon demand by Landlord. Tenant will not, without the
written consent of Landlord, use any apparatus or device in the Premises
(including, without limitation), electronic data processing machines or machines
using current in excess of 110 Volts which will in any way increase the amount
of electricity, gas, water or air-conditioning usually furnished or supplied to
Premises being used as general office space, or connect with electric current
(except through existing electrical outlets in the Premises), or with gas or
water pipes any apparatus or device for the purposes of using electric current,
gas, or water. If (i) Tenant shall require water, gas, or electric current in
excess of that usually furnished or supplied to Premises being used as general
office space, Tenant shall first obtain the written consent of Landlord, which
consent shall not be unreasonably withheld, or (ii) if Tenant is found to be
using water, gas and/or electrical current in excess of its Proportionate Share
(as such excess usage is confirmed by a study conducted by Landlord's
contractor(s), Landlord may (i) adjust the Proportionate Share allocated to
Tenant based on Tenant's actual or estimated use or (ii) cause an electric
current, gas or water meter to be installed in the Premises in order to measure
the amount of electric current, gas or water consumed for any such excess use.
In the event Landlord questions Tenant's usage, Landlord shall employ the
services of a licensed electrical or plumbing contractor to determine what
Tenant's actual use is and Tenant shall be responsible for paying the cost
related to said investigation by the licensed contractor or any other qualified
third party vendor that Landlord may employ to provide such service. The cost of
any such meter and of the installation, maintenance and repair thereof, all
charges for such excess water, gas and electric current consumed (as shown by
such meters and at the rates then charged by the furnishing public utility); and
any additional expense incurred by Landlord in keeping account of electric
current, gas, or water so consumed shall be paid by Tenant, and Tenant agrees to
pay Landlord therefor promptly upon demand by Landlord.
13. TAXES.
A. As Additional Rent and in accordance with Paragraph 4.D of
this Lease, Tenant shall pay to Landlord, monthly in advance or as they become
due, pursuant to statements submitted by Landlord, Tenant's Proportionate Share
(which pro rata share shall be allocated to the Leased Premises by square
footage (Tenant's initial Proportionate Share (for the Phase I Premises) as a
percentage of the Building is 40.75% (19,715+ square foot Leased Premises
divided by 48,384+ square foot Building); Tenant's Proportionate Share effective
May 1, 2004 (the Commencement Date for the Phase II Premises) as a percentage of
the Building is 33.45% (16,183+ square foot Leased Premises divided by 48,384+
square foot Building) or other equitable basis, as calculated by Landlord) of
all Real Property Taxes relating to the Premises accruing with respect to the
Premises during the Term of this Lease and the Extended Term (if any). The term
"Real Property Taxes" shall also include supplemental taxes related to the
period of Tenant's Lease Term whenever levied, including any such taxes that may
be levied after the Lease Term has expired. The term "Real Property Taxes", as
used herein, shall mean (i) all taxes, assessments, levies and other charges of
any kind or nature whatsoever, general and special, foreseen and unforeseen
(including all installments of principal and interest required to pay any
general or special assessments for public improvements and any increases
resulting from reassessments caused by any change in ownership of the Premises)
now or hereafter imposed by any governmental or quasi-governmental authority or
special district having the direct or indirect power to tax or levy assessments,
which are levied or assessed against, or with respect to the value, occupancy or
use of, all or any portion of the Complex (as now constructed or as may at any
time hereafter be constructed, altered, or otherwise changed) or Landlord's
interest therein; any improvements located within the Complex (regardless of
ownership); the fixtures, equipment and other property of Landlord, real or
personal, that are an integral part of and located in the Complex; or parking
areas, public utilities, or energy within the Complex; (ii) all charges, levies
or fees imposed by reason of environmental regulation or other governmental
control of the Complex and (iii) all costs and fees (including reasonable
attorneys' fees) incurred by Landlord in reasonably contesting any Real Property
Tax and in negotiating with public authorities as to any Real Property Tax. If
at any time during the Term of this Lease the taxation or assessment of the
Complex prevailing as of the Commencement Date of this Lease shall be altered so
that in lieu of or in addition to any Real Property Tax described above there
shall be levied, assessed or imposed (whether by reason of a change in the
method of taxation or assessment, creation of a new tax or charge, or any other
cause) an alternate or additional tax or charge (i) on the value, use or
occupancy of the Complex or Landlord's interest therein or (ii) on or measured
by the gross receipts, income or rentals from the Complex, on Landlord's
business of leasing the Complex, or computed in any manner with respect to the
operation of the Complex, then any such tax or charge, however designated, shall
be included within the meaning of the term "Real Property Taxes" for purposes of
this Lease. If any Real Property Tax is based upon property or rents
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unrelated to the Complex, then only that part of such Real Property Tax that is
fairly allocable to the Complex shall be included within the meaning of the term
"Real Property Taxes." Notwithstanding the foregoing, the term "Real Property
Taxes" shall not include estate, inheritance, gift or franchise taxes of
Landlord or the federal or state net income tax imposed on Landlord's income
from all sources.
B. Taxes on Tenant's Property.
(a) Tenant shall be liable for and shall pay ten days before
delinquency, taxes levied against any personal property or trade fixtures placed
by Tenant in or about the Premises. If any such taxes on Tenant's personal
property or trade fixtures are levied against Landlord or Landlord's property or
if the assessed value of the Premises is increased by the inclusion therein of a
value placed upon such personal property or trade fixtures of Tenant and if
Landlord, after written notice to Tenant, pays the taxes based on such increased
assessment, which Landlord shall have the right to do regardless of the validity
thereof, but only under proper protest if requested by Tenant, Tenant shall upon
demand, as the case may be, repay to Landlord the taxes so levied against
Landlord, or the proportion of such taxes resulting from such increase in the
assessment; provided that in any such event Tenant shall have the right, in the
name of Landlord and with Landlord's full cooperation, to bring suit in any
court of competent jurisdiction to recover the amount of such taxes so paid
under protest, and any amount so recovered shall belong to Tenant.
(b) If the Tenant improvements in the Premises, whether installed,
and/or paid for by Landlord or Tenant and whether or not affixed to the real
property so as to become a part thereof, are assessed for real property tax
purposes at a valuation higher than the valuation at which standard office
improvements in other space in the Complex are assessed, then the real property
taxes and assessments levied against the Landlord or the Complex by reason of
such excess assessed valuation shall be deemed to be taxies levied against
personal property of the Tenant and shall be governed by the provisions of
13.B(a) above. If the records of the County Assessor are available and
sufficiently detailed to serve as a basis for determining whether said Tenant
improvements are assessed at a higher valuation than standard office space
improvements in other space in the Complex, such records shall be binding on
both the Landlord and the Tenant. If the records of the County Assessor are not
available or sufficiently detailed to serve as a basis for making said
determination, the actual cost of construction shall be used.
14. ASSESSMENT CREDITS. The demised property herein may be subject to a
special assessment levied by the City of Redwood City as part of an Improvement
District. As a part of said special assessment proceedings (if any), additional
bonds were or may be sold and assessments were or may be levied to provide for
construction contingencies and reserve funds. Interest shall be earned on such
funds created for contingencies and on reserve funds which will be credited for
the benefit of said assessment district. To the extent surpluses are created in
said district through unused contingency funds, interest earnings or reserve
funds, such surpluses shall be deemed the property of Landlord. Notwithstanding
that such surpluses may be credited on assessments otherwise due against the
Leased Premises, Tenant shall pay to Landlord, as Additional Rent if, and at the
time of any such credit of surpluses, an amount equal to all such surpluses so
credited. For example: if (i) the property is subject to an annual assessment of
$1,000.00, and (ii) a surplus of $200.00 is credited towards the current year's
assessment which reduces the assessment amount shown on the property tax xxxx
from $1,000.00 to $800.00, Tenant shall, upon receipt of notice from Landlord,
pay to Landlord said $200.00 credit as Additional Rent.
15. LIABILITY INSURANCE. Tenant, at Tenant's expense, agrees to keep in
force during the Term of this Lease a policy of commercial general liability
insurance with combined single limit coverage of not less than Two Million
Dollars ($2,000,000) per occurrence for injuries to or death of persons
occurring in, on, or about the Premises or the Complex and property damage. Such
insurance shall be primary and noncontributory as respects any insurance carried
by Landlord. The policy or policies affecting such insurance, certificates of
insurance of which shall be furnished to Landlord, shall name Landlord; Xxxxxxx
X. Xxxxx, as Trustee of the Xxxxxxx X. Xxxxx Separate Property Trust dated July
20, 1977, as amended; the Xxxxxxx X. Xxxxx Separate Property Trust; Xxxxxxx X.
Xxxxx as an individual; Xxxx Xxxxxxxxx, as Trustee under the Xxxx Xxxxxxxxx
Survivor's Trust dated July 20, 1977, as amended; the Xxxx Xxxxxxxxx Survivor's
Trust; Xxxx Xxxxxxxxx, as an individual; the Xxxxx Private Investment
Company-WP, a California Limited Partnership; Xxxxxxx X. Xxxxx Separate Property
Trust as general partner under the Xxxxx Private Investment Company-WP; the
Xxxxx Charitable Remainder Trust-WP for Private Charities, as limited partner
under the Xxxxx Private Investment Company-WP; Xxxxx Xxxxxx as Trustee under the
Xxxxx Charitable Remainder Trust-WP for Private Charities; Xxxxx Public
Investment Company-WP, a
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PROPERTY: 30-0017
UNIT: 4
LEASE ID: 0117-FVCC01-01
California Limited Partnership; Xxxxxxx X. Xxxxx Separate Property Trust as
general partner under the Xxxxx Public Investment Company-WP; the Xxxxx
Charitable Remainder Trust-WP for Public Charities, as limited partner under the
Xxxxx Public Investment Company-WP; Xxxxx Xxxxxx as Trustee under the Xxxxx
Charitable Remainder Trust-WP for Public Charities; Xxxxx Xxxxxx, as an
individual; and any beneficiaries, trustees and successor trustees, other
partners or co-venturers of Landlord or said trusts as additional insureds
(collectively "Landlord Entities"), and shall insure any liability of the
Landlord Entities, contingent or otherwise, as respects acts or omissions of
Tenant, its agents, employees or invitees or otherwise by any conduct or
transactions of any of said persons in or about or concerning the Premises,
including any failure of Tenant to observe or perform any of its obligations
hereunder; shall be issued by an insurance company admitted to transact business
in the State of California; and shall provide that the insurance effected
thereby shall not be canceled, except upon thirty (30) days' prior written
notice to Landlord. Tenant's insurance shall be primary as respects to the
Landlord Entities, or if excess, shall stand in an unbroken chain of coverage.
In either event, any other insurance maintained by the Landlord Entities shall
be in excess of Tenant's insurance and shall not be called upon to contribute
with any insurance required to be provided by Tenant. A certificate of insurance
of said policy shall be delivered to Landlord. If, during the Term of this
Lease, in the considered opinion of Landlord's Lender, insurance advisor, or
counsel, the amount of insurance described in this Paragraph 15 is not adequate,
Tenant agrees to increase said coverage to such reasonable amount as Landlord's
Lender, insurance advisor, or counsel shall deem adequate.
16. TENANT'S PERSONAL PROPERTY INSURANCE AND XXXXXXX'X COMPENSATION
INSURANCE. Tenant shall maintain a policy or policies of fire and property
damage insurance in "all risk" form with a sprinkler leakage endorsement
insuring the personal property, inventory, trade fixtures, and leasehold
improvements within the Leased Premises for the full replacement value thereof.
The proceeds from any of such policies shall be used for the repair or
replacement of such items so insured.
Tenant shall also maintain a policy or policies of xxxxxxx'x
compensation insurance and any other employee benefit insurance sufficient to
comply with all laws.
17. PROPERTY INSURANCE. Landlord shall purchase and keep in force, and
as Additional Rent and in accordance with Paragraph 4.D of this Lease, Tenant
shall pay to Landlord (or Landlord's agent if so directed by Landlord) Tenant's
Proportionate Share (which pro rata share shall be allocated to the Leased
Premises by square footage (Tenant's initial Proportionate Share (for the Phase
I Premises) as a percentage of the Building is 40.75% (19,715+ square foot
Leased Premises divided by 48,384+ square foot Building); Tenant's Proportionate
Share effective May 1, 2004 (the Commencement Date for the Phase II Premises) as
a percentage of the Building is 33.45% (16,183+ square foot Leased Premises
divided by 48,384+ square foot Building) or other equitable basis, as calculated
by Landlord) of the deductibles on insurance claims and the cost of, policy or
policies of insurance covering loss or damage to the Premises and Complex
(excluding routine maintenance and repairs and incidental damage or destruction
caused by accidents or vandalism for which Tenant is responsible under Paragraph
11) in the amount of the full replacement value thereof, providing protection
against those perils included within the classification of "all risks" "special
form" insurance and flood and/or earthquake insurance, if available, plus a
policy of rental income insurance in the amount of one hundred (100%) percent of
twelve (12) months Basic Rent, plus sums paid as Additional Rent and any
deductibles related thereto. If such insurance cost is increased due to Tenant's
use of the Premises or the Complex, Tenant agrees to pay to Landlord the full
cost of such increase. Tenant shall have no interest in nor any right to the
proceeds of any insurance procured by Landlord for the Complex.
In addition and notwithstanding anything to the contrary in this
Paragraph 17, each party to this Lease hereby waives all rights of recovery
against the other party or its officer, employees, agents and representatives
for loss or damage to its property or the property of others under its control,
arising from any cause insured against under the fire and extended "special
form" property coverage (excluding, however, any loss resulting from Hazardous
Material contamination of the Property) required to be maintained by the terms
of this Lease Agreement to the extent full reimbursement of the loss/claim is
received by the insured party. Each party required to carry property insurance
hereunder shall cause the policy evidencing such insurance to include a
provision permitting such release of liability ("waiver of subrogation
endorsement"); provided, however, that if the insurance policy of either
releasing party prohibits such waiver, then this waiver shall not take effect
until consent to such waiver is obtained. If such waiver is so prohibited, the
insured party affected shall promptly notify the other party thereof. In
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BUILDING: Wesport 17
PROPERTY: 30-0017
UNIT: 4
LEASE ID: 0117-FVCC01-01
the event the waivers are issued to the parties and are not valid under current
policies and/or subsequent insurance policies, the non-complying party will
provide, to the other party, 30 days advance notification of the cancellation of
the subrogation waiver, in which case neither party will provide such
subrogation waiver thereafter and this Paragraph will be null and void. The
foregoing waiver of subrogation shall not include any loss resulting from
Hazardous Material contamination of the Property or any insurance coverage
relating thereto.
18. INDEMNIFICATION. Landlord shall not be liable to Tenant and Tenant
hereby waives all claims against Landlord for any injury to or death of any
person or damage to or destruction of property in or about the Premises or the
Complex by or from any cause whatsoever, including, without limitation, gas,
fire, oil, electricity or leakage of any character from the roof, walls,
basement or other portion of the Premises or the Complex but excluding, however,
the willful misconduct or negligence of Landlord, its agents, servants,
employees, invitees or contractors of which negligence Landlord has knowledge
and reasonable time to correct. Except as to injury to persons or damage to
property to the extent arising from the willful misconduct or the negligence of
Landlord, its agents, servants, employees, invitees, or contractors, Tenant
shall hold Landlord harmless from and defend Landlord against any and all
expenses, including reasonable attorneys' fees, in connection therewith, arising
out of any injury to or death of any person or damage to or destruction of
property occurring in, on or about the Premises, or any part thereof, from any
cause whatsoever, accruing and/or occurring during the Term of this Lease. The
provisions of this Paragraph 18 shall survive the expiration or termination of
this Lease.
19. COMPLIANCE. Tenant, at its sole cost and expense, shall promptly
comply with all laws, statutes, ordinances and governmental rules, regulations
or requirements now or hereafter in effect; with the requirements of any board
of fire underwriters or other similar body now or hereafter constituted; and
with any direction or occupancy certificate issued pursuant to law by any public
officer; provided, however, that no such failure shall be deemed a breach of the
provisions if Tenant, immediately upon notification, commences to remedy or
rectify said failure. The judgment of any court of competent jurisdiction or the
admission of Tenant in any action against Tenant, whether Landlord be a party
thereto or not, that Tenant has violated any such law, statute, ordinance or
governmental rule, regulation, requirement, direction or provision, shall be
conclusive of that fact as between Landlord and Tenant. Tenant shall, at its
sole cost and expense, comply with any and all requirements pertaining to said
Premises, of any insurance organization or company, necessary for the
maintenance of reasonable fire and public liability insurance covering
requirements pertaining to said Premises. The provisions of this Paragraph 19
shall survive the expiration or termination of this Lease.
20. LIENS. Tenant shall keep the Premises free from any liens arising
out of any work performed, materials furnished or obligation incurred by Tenant.
In the event that Tenant shall not, within ten (10) days following notice of the
imposition of such lien, cause the same to be released of record, Landlord shall
have, in addition to all other remedies provided herein and by law, the right,
but no obligation, to cause the same to be released by such means as it shall
deem proper, including payment of the claim giving rise to such lien. All sums
paid by Landlord for such purpose, and all expenses incurred by it in connection
therewith, shall be payable to Landlord by Tenant on demand with interest at the
higher of the (i) prime rate of interest as quote by the Bank of America or (ii)
Landlord's borrowing rate (the "Interest Rate").
21. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not assign, transfer, or hypothecate the leasehold
estate under this Lease, or any interest therein, and shall not sublet the
Premises, or any part thereof, or any right or privilege appurtenant thereto, or
suffer any other person or entity to occupy or use the Premises, or any portion
thereof, without, in each case, the prior written consent of Landlord which
consent will not be unreasonably withheld. Tenant's failure to obtain Landlord's
prior written consent before entering into any such assignment, transfer and/or
subletting shall be considered a default under this Lease and Landlord shall
retain all of its rights under the Lease, including the right to elect, at
Landlord sole and absolute discretion, to terminate either the Lease and/or the
related sublease. As a condition for granting this consent to any assignment,
transfer, or subletting, Landlord shall require that: (i) the sublease be a
TRIPLE NET SUBLEASE and that the basic rent due under any such sublease be no
less than the then current market rent with annual increases at the then
prevailing market rent; (ii) the sublease shall require that the security
deposit due under the sublease be in the form of a letter of credit drawn upon
an institutional
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PROPERTY: 30-0017
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lender acceptable and accessible to Landlord in form and content reasonably
acceptable to Landlord, with the letter of credit being assignable to Landlord,
at no cost to Landlord, upon notice to said financial institution of a default
by Tenant under the Lease; (iii) the sublease shall not provide for subtenant to
have an option to extend the term of the sublease or an option to expand the
sublet space; and (iii) Tenant shall pay to Landlord, monthly throughout the
term of any approved sublease, all rents and/or additional consideration due
Tenant from its assignees, transferees, or subtenants in excess of the Rent
payable by Tenant to Landlord hereunder for the assigned, transferred and/or
subleased space ("Excess Rent") (with said Excess Rent subject to the terms of
Lease Paragraph 4.C ("Late Charge") and Lease 24 ("Bankruptcy and Default").
Tenant shall, by thirty (30) days written notice, advise Landlord of its intent
to assign or transfer Tenant's interest in the Lease or sublet the Premises or
any portion thereof for any part of the Term hereof. Within thirty (30) days
after receipt of said written notice, Landlord may, in its sole discretion,
elect to terminate this Lease as to the portion of the Premises described in
Tenant's notice on the date specified in Tenant's notice by giving written
notice of such election to terminate. If no such notice to terminate is given to
Tenant within said thirty (30) day period, Tenant may proceed to locate an
acceptable sublessee, assignee, or other transferee for presentment to Landlord
for Landlord's approval, all in accordance with the terms, covenants, and
conditions of this Paragraph 21. If Tenant intends to sublet the entire Premises
and Landlord elects to terminate this Lease, this Lease shall be terminated on
the date specified in Tenant's notice. If, however, this Lease shall terminate
pursuant to the foregoing with respect to less than all the Premises, the Rent,
as defined and reserved hereinabove shall be adjusted on a pro rata basis to the
number of square feet retained by Tenant, and this Lease as so amended shall
continue in full force and effect. In the event Tenant is allowed to assign,
transfer or sublet the whole or any part of the Premises, with the prior written
consent of Landlord, no assignee, transferee or subtenant shall assign or
transfer this Lease, either in whole or in part, or sublet the whole or any part
of the Premises, without also having obtained the prior written consent of
Landlord. NOTWITHSTANDING THE ABOVE, IN NO EVENT SHALL LANDLORD CONSENT TO A
SUB-SUBLEASE. A consent of Landlord to one assignment, transfer, hypothecation,
subletting, occupation or use by any other person shall not release Tenant from
any of Tenant's obligations hereunder or be deemed to be a consent to any
subsequent similar or dissimilar assignment, transfer, hypothecation,
subletting, occupation or use by any other person. Any such assignment,
transfer, hypothecation, subletting, occupation or use without such consent
shall be void and shall constitute a breach of this Lease by Tenant and shall,
at the option of Landlord exercised by written notice to Tenant, terminate this
Lease. The leasehold estate under this Lease shall not, nor shall any interest
therein, be assignable for any purpose by operation of law without the written
consent of Landlord. As a condition to its consent, Landlord shall require
Tenant to pay all expenses in connection with any and all subleases and/or
assignments and/or any amendments related thereto, including but not limited to
Landlord's fees for the processing and administration of the consent
documentation and Landlord's attorneys' fees (if any), and Landlord shall
require Tenant's subtenant, assignee or transferee (or other assignees or
transferees) to assume in writing all of the obligations under this Lease and
for Tenant to remain liable to Landlord under the Lease.
B. Notwithstanding the foregoing, Landlord and Tenant agree that it
shall not be unreasonable for Landlord to refuse to consent to a proposed
assignment, sublease or other transfer ("Proposed Transfer") if the Premises or
any other portion of the Property would become subject to additional or
different Government Requirements as a direct or indirect consequence of the
Proposed Transfer and/or the Proposed Transferee's use and occupancy of the
Premises and the Property. However, Landlord may, in its sole discretion,
consent to such a Proposed Transfer where Landlord is indemnified by Tenant and
(i) Subtenant or (ii) Assignee, in form and substance satisfactory to Landlord
and/or to Landlord's counsel, by Tenant and/or Proposed Transferee from and
against any and all costs, expenses, obligations and liability arising out of
the Proposed Transfer and/or the Proposed Transferee's use and occupancy of the
Premises and the Property.
C. Any and all sublease agreement(s) between Tenant and any and all
subtenant(s) (which agreements must be consented to by Landlord, pursuant to the
requirements of this Lease) shall contain the following language:
"If Landlord and Tenant jointly and voluntarily elect, for any
reason whatsoever, to terminate the Master Lease prior to the scheduled
Master Lease termination date, then, if Landlord so elects, this
Sublease (if then still in effect) shall terminate concurrently with
the termination of the Master Lease. Subtenant expressly acknowledges
and agrees that (1) the voluntary termination of the Master Lease by
Landlord and Tenant and the resulting termination of this Sublease
shall not give Subtenant any right or power to make any legal or
equitable claim against Landlord, including without limitation any
claim for
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PROPERTY: 30-0017
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interference with contract or interference with prospective economic
advantage, and (2) Subtenant hereby waives any and all rights it may
have under law or at equity against Landlord to challenge such an early
termination of the Sublease, and unconditionally releases and relieves
Landlord, and its officers, directors, employees and agents, from any
and all claims, demands, and/or causes of action whatsoever
(collectively, "Claims"), whether such matters are known or unknown,
latent or apparent, suspected or unsuspected, foreseeable or
unforeseeable, which Subtenant may have arising out of or in connection
with any such early termination of this Sublease. Subtenant knowingly
and intentionally waives any and all protection which is or may be
given by Section 1542 of the California Civil Code which provides as
follows: "A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with debtor.
The term of this Sublease is therefore subject to early
termination. Subtenant's initials here below evidence (a) Subtenant's
consideration of and agreement to this early termination provision, (b)
Subtenant's acknowledgment that, in determining the net benefits to be
derived by Subtenant under the terms of this Sublease, Subtenant has
anticipated the potential for early termination, and (c) Subtenant's
agreement to the general waiver and release of Claims above.
Initials: _________ Initials: _________"
Subtenant Tenant
22. SUBORDINATION AND MORTGAGES. In the event Landlord's title or
leasehold interest is now or hereafter encumbered by a deed of trust, upon the
interest of Landlord in the land and Building in which the demised Premises are
located, to secure a loan from a lender (hereinafter referred to as "Lender") to
Landlord, Tenant shall, at the request of Landlord or Lender, execute in writing
an agreement (in form reasonably acceptable to Tenant), subordinating its rights
under this Lease to the lien of such deed of trust, or, if so requested,
agreeing that the lien of Lender's deed of trust shall be or remain subject and
subordinate to the rights of Tenant under this Lease. Notwithstanding any such
subordination, Tenant's possession under this Lease shall not be disturbed if
Tenant is not in default (and if in default, Tenant's right to cure said default
has not expired) said and so long as Tenant shall pay all Rent and observe and
perform all of the provisions set forth in this Lease and any subordination
agreement shall reflect the agreement of the Lender to the same.
23. ENTRY BY LANDLORD. Landlord reserves, and shall at all reasonable
times after at least twenty four (24) hours notice (except in emergencies) have
the right to enter the Premises to inspect them; to perform any services to be
provided by Landlord hereunder; to make repairs or provide any services to a
contiguous tenant(s) (if any); to submit the Premises to prospective purchasers,
mortgagers or tenants; to post notices of non-responsibility; and to alter,
improve or repair the Premises and any portion of the Complex, all without
abatement of Rent, and may erect scaffolding and other necessary structures in
or through the Premises where reasonably required by the character of the work
to be performed; provided, however that the business of Tenant shall be
interfered with to the least extent that is reasonably practical. Landlord shall
also have the right at any time to change the arrangement or location of
entrances or passageways, doors and doorways, and corridors, elevators, stairs,
toilets or other public parts of the Complex and to change the name, number or
designation by which the Complex is commonly known, and none of the foregoing
shall be deemed an actual or constructive eviction of Tenant, or shall entitle
Tenant to any reduction of Rent hereunder. Any entry to the Premises by Landlord
for the purposes provided for herein shall not under any circumstances be
construed or deemed to be a forcible or unlawful entry into or a detainer of the
Premises or an eviction, actual or constructive, of Tenant from the Premises or
any portion thereof.
24. BANKRUPTCY AND DEFAULT. The commencement of a bankruptcy action or
liquidation action or reorganization action or insolvency action or an
assignment of or by Tenant for the benefit of creditors, or any similar action
undertaken by Tenant, or the insolvency of Tenant, shall, at Landlord's option,
constitute a breach of this Lease by Tenant. If the trustee or receiver
appointed to serve during a bankruptcy, liquidation, reorganization, insolvency
or similar action elects to reject Tenant's unexpired Lease, the trustee or
receiver shall notify Landlord in writing of its election within thirty (30)
days after an order for relief in a liquidation action or within thirty (30)
days after the commencement of any action.
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BUILDING: Wesport 17
PROPERTY: 30-0017
UNIT: 4
LEASE ID: 0117-FVCC01-01
Within thirty (30) days after the court approval of the assumption of
this Lease, the trustee or receiver shall cure (or provide adequate assurance to
the reasonable satisfaction of Landlord that the trustee or receiver shall cure)
any and all previous defaults under the unexpired Lease and shall compensate
Landlord for all actual pecuniary loss and shall provide adequate assurance of
future performance under said Lease to the reasonable satisfaction of Landlord.
Adequate assurance of future performance, as used herein, includes, but shall
not be limited to: (i) assurance of source and payment of Rent, and other
consideration due under this Lease; (ii) assurance that the assumption or
assignment of this Lease will not breach substantially any provision, such as
radius, location, use, or exclusivity provision, in any agreement relating to
the above described Premises.
Nothing contained in this section shall affect the existing right of
Landlord to refuse to accept an assignment upon commencement of or in connection
with a bankruptcy, liquidation, reorganization or insolvency action or an
assignment of Tenant for the benefit of creditors or other similar act. Nothing
contained in this Lease shall be construed as giving or granting or creating an
equity in the demised Premises to Tenant. In no event shall the leasehold estate
under this Lease, or any interest therein, be assigned by voluntary or
involuntary bankruptcy proceeding without the prior written consent of Landlord.
In no event shall this Lease or any rights or privileges hereunder be an asset
of Tenant under any bankruptcy, insolvency or reorganization proceedings.
The failure to perform or honor any covenant, condition or
representation made under this Lease shall constitute a default under this Lease
by Tenant upon expiration of the appropriate grace period hereinafter provided.
Tenant shall have a period of five (5) days from the date of written notice from
Landlord within which to cure any default in the payment of Rent or adjustment
thereto. Tenant shall have a period of thirty (30) days from the date of written
notice from Landlord within which to cure any other non-monetary default under
this Lease; provided, however, that with respect to non-monetary defaults not
involving Tenant's failure to pay Basic Rent or Additional Rent, Tenant shall
not be in default if (i) more than thirty (30) days is required to cure such
non-monetary default and (ii) Tenant commences cure of such default as soon as
reasonably practicable after receiving written notice of such default from
Landlord and thereafter continuously and with due diligence prosecutes such cure
to completion. Upon an uncured default of this Lease by Tenant, Landlord shall
have the following rights and remedies in addition to any other rights or
remedies available to Landlord at law or in equity:
(a) The rights and remedies provided for by California Civil Code
Section 1951.2 including but not limited to, recovery of the worth at the time
of award of the amount by which the unpaid Rent for the balance of the Term
after the time of award exceeds the amount of rental loss for the same period
that Tenant proves could be reasonably avoided, as computed pursuant to
subsection (b) of said Section 1951.2. Any proof by Tenant under subparagraphs
(2) and (3) of Section 1951.2 of the California Civil Code of the amount of
rental loss that could be reasonably avoided shall be made in the following
manner: Landlord and Tenant shall each select a licensed real estate broker in
the business of renting property of the same type and use as the Premises and in
the same geographic vicinity. Such two real estate brokers shall select a third
licensed real estate broker, and the three licensed real estate brokers so
selected shall determine the amount of the Rent loss that could be reasonably
avoided from the balance of the Term of this Lease after the time of award. The
decision of the majority of said licensed real estate brokers shall be final and
binding upon the parties hereto. As part of such damages, Landlord shall have
the right to recover that portion of any leasing commission paid by Landlord in
connection with this Lease applicable to the unexpired Term of this Lease.
(b) The rights and remedies provided by California Civil Code Section
1951.4, which allows Landlord to continue the Lease in effect and to enforce all
of its rights and remedies under this Lease, including the right to recover Rent
as it becomes due, for so long as Landlord does not terminate Tenant's right to
possession; acts of maintenance or preservation, efforts to relet the Premises,
or the appointment of a receiver upon Landlord's initiative to protect its
interest under this Lease shall not constitute a termination of Tenant's right
to possession.
(c) The right to terminate this Lease by giving notice to Tenant in
accordance with applicable law.
(d) To the extent permitted by law, the right and power to enter the
Premises and remove therefrom all persons and property, to store such property
in a public warehouse or elsewhere at the cost of and for the account of Tenant,
and to sell such property and apply such proceeds therefrom pursuant to
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BUILDING: Wesport 17
PROPERTY: 30-0017
UNIT: 4
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applicable California law. Landlord may from time to time sublet the Premises or
any part thereof for such term or terms (which may extend beyond the Term of
this Lease) and at such Rent and such other terms as Landlord in its reasonable
sole discretion may deem advisable, with the right to make alterations and
repairs to the Premises. Upon each subletting, (i) Tenant shall be immediately
liable to pay Landlord, in addition to indebtedness other than Rent due
hereunder, the reasonable cost of such subletting, including, but not limited
to, reasonable attorneys' fees, and any real estate commissions actually paid,
and the cost of such reasonable alterations and repairs incurred by Landlord and
the amount, if any, by which the Rent hereunder for the period of such
subletting (to the extent such period does not exceed the Term hereof) exceeds
the amount to be paid as Rent for the Premises for such period or (ii) at the
option of Landlord, rents received from such subletting shall be applied first
to payment of indebtedness other than Rent due hereunder from Tenant to
Landlord; second, to the payment of any costs of such subletting and of such
alterations and repairs; third, to payment of Rent due and unpaid hereunder; and
the residue, if any, shall be held by Landlord and applied in payment of future
Rent as the same becomes due hereunder. If Tenant has been credited with any
Rent to be received by such subletting under option (i) and such Rent shall not
be promptly paid to Landlord by the subtenant(s), or if such rentals received
from such subletting under option (ii) during any month be less than that to be
paid during the month by Tenant hereunder, Tenant shall pay any such deficiency
to Landlord. Such deficiency shall be calculated and paid monthly. No taking
possession of the Premises by Landlord shall be construed as an election on its
part to terminate this Lease unless a written notice of such intention be given
to Tenant. Notwithstanding any such subletting without termination, Landlord may
at any time hereafter elect to terminate this Lease for such previous breach.
(e) The right to have a receiver appointed for Tenant upon application
by Landlord, to take possession of the Premises and to apply any rental
collected from the Premises and to exercise all other rights and remedies
granted to Landlord pursuant to subparagraph (d) above.
25. ABANDONMENT. Tenant shall not vacate or abandon the Premises at any
time during the Term of this Lease and if Tenant shall abandon, vacate or
surrender said Premises, or be dispossessed by the process of law, or otherwise,
any personal property belonging to Tenant and left on the Premises shall be
deemed to be abandoned, at the option of Landlord, except such property as may
be mortgaged to Landlord. Notwithstanding the above, Tenant shall not be in
default under the Lease if it leaves all or any part of Premises vacant so long
as (i) Tenant is performing all of its other obligations under the Lease
including the obligation to pay Rent (ii) Tenant provides on-site security
during normal business hours for those parts of the Premises left vacant, (iii)
such vacancy does not materially and adversely affect the validity or coverage
of any policy of insurance carried by Landlord with respect to the Premises, and
(iv) the utilities and heating and ventilation systems are operated and
maintained to the extent necessary to prevent damage to the Premises or its
systems.
26. DESTRUCTION. In the event the Premises are destroyed in whole or in
part from any cause, except for routine maintenance and repairs and incidental
damage and destruction caused from vandalism and accidents for which Tenant is
responsible under Xxxxxxxxx 00, Xxxxxxxx may, at its option:
(a) Rebuild or restore the Premises to their condition prior to
the damage or destruction, or
(b) Terminate this Lease (providing that the Premises is damaged
to the extent of 33 1/3% or more of the replacement cost, exclusive of footings,
foundations and floor slabs).
If Landlord does not give Tenant notice in writing within thirty (30)
days from the destruction of the Premises of its election to either rebuild and
restore them, or to terminate this Lease, Landlord shall be deemed to have
elected to rebuild or restore them, in which event Landlord agrees, at its
expense except for any deductible, which is the responsibility of the Tenant,
promptly to rebuild or restore the Premises to their condition prior to the
damage or destruction. Tenant shall be entitled to a reduction in Rent from the
date of such damage or destruction, provided Tenant is not using any portion of
such damaged area, while such repair is being made in the proportion that the
area of the Premises rendered untenantable by such damage bears to the total
area of the Premises. If Landlord initially estimates that the rebuilding or
restoration will exceed 180 days or if Landlord does not complete the rebuilding
or restoration within one hundred eighty (180) days following the date of
destruction (such period of time to be extended for delays caused by the fault
or neglect of Tenant or because of Acts of God, acts of public agencies, labor
disputes, strikes, fires, freight embargos, rainy or stormy weather, inability
to obtain materials, supplies or fuels, acts of contractors or subcontractors,
or delay of the contractors or subcontractors due to such causes or other
contingencies beyond the control of Landlord), then Tenant shall have the right
to terminate this
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PROPERTY: 30-0017
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Lease by giving written notice to Landlord within five days following the date
Tenant receives Landlord's written notice stating that the restoration will
exceed 180 days. Regardless of whether Landlord and/or Tenant elects to
terminate the Lease early as provided herein, Tenant shall remain liable for the
insurance deductible as it relates to the Leased Premises. Notwithstanding
anything herein to the contrary, Landlord's obligation to rebuild or restore
shall be limited to the Building and interior improvements constructed by
Landlord as they existed as of the Commencement Date of the Lease and shall not
include restoration of Tenant's trade fixtures, equipment, merchandise, or any
improvements, alterations or additions made by Tenant to the Premises, which
Tenant shall forthwith replace or fully repair at Tenant's sole cost and expense
provided this Lease is not canceled according to the provisions above.
Unless this Lease is terminated pursuant to the foregoing provisions,
this Lease shall remain in full force and effect. Tenant hereby expressly waives
the provision of Section 1932, Subdivision 2, in Section 1933, Subdivision 4 of
the California Civil Code.
In any event that the Building in which the Premises are situated is
damaged or destroyed to the extent of not less than 33 1/3% of the replacement
cost thereof, Landlord may elect to terminate this Lease, whether the Premises
be injured or not. Notwithstanding anything to the contrary herein, Landlord may
terminate this lease in the event of an uninsured event or if insurance proceeds
are insufficient to cover one hundred percent of the rebuilding costs net of the
deductible.
Without regard to whether this Lease is terminated pursuant to the
foregoing, Tenant, upon demand by Landlord, shall pay to Landlord the
deductibles from any casualty policy Landlord carries pursuant to Paragraph 17
("Property Insurance").
27. EMINENT DOMAIN. If all or any part of the Premises shall be taken
by any public or quasi-public authority under the power of eminent domain or
conveyance in lieu thereof, this Lease shall terminate as to any portion of the
Premises so taken or conveyed on the date when title vests in the condemnor, and
Landlord shall be entitled to any 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 Term of this Lease. Notwithstanding the
foregoing sentence, any compensation specifically awarded Tenant for loss of
business, Tenant's personal property, moving costs or loss of goodwill, shall be
and remain the property of Tenant.
If (i) any action or proceeding is commenced for such taking of the
Premises or any part thereof, or if Landlord is advised in writing by any entity
or body having the right or power of condemnation of its intention to condemn
the Premises or any part thereof, or (ii) any of the foregoing events occur with
respect to the taking of any space in the Complex not leased hereby, or if any
such spaces so taken or conveyed in lieu of such taking and Landlord shall
decide to discontinue the use and operation of the Complex, or decide to
demolish, alter or rebuild the Complex, then in any such events Landlord shall
have the right to terminate this Lease by giving Tenant written notice thereof
within sixty (60) days of the date of receipt of said written advice, or
commencement of said action or proceeding, or taking conveyance, which
termination shall take place as of the first to occur of the last day of the
calendar month next following the month in which such notice is given or the
date on which title to the Premises shall vest in the condemnor.
In the event of such a partial taking or conveyance of the Premises, if
the portion of the Premises taken or conveyed is so substantial that the Tenant
can no longer reasonably conduct its business, Tenant shall have the privilege
of terminating this Lease within sixty (60) days from the date of such taking or
conveyance, upon written notice to the Landlord of its intention so to do, and
upon giving of such notice this Lease shall terminate on the last day of the
calendar month next following the month in which such notice is given, upon
payment by Tenant of the Rent from the date of such taking or conveyance to the
date of termination.
If a portion of the Premises be taken by condemnation or conveyance in
lieu thereof and neither Landlord nor Tenant shall terminate this Lease as
provided herein, this Lease shall continue in full force and effect as to the
part of the Premises not so taken or conveyed, and the Rent herein shall be
apportioned as of the date of such taking or conveyance so that thereafter the
Rent to be paid by Tenant shall be in the ratio that the area of the portion of
the Premises not so taken or conveyed bears to the total area of the Premises
prior to such taking.
Initial:________
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BUILDING: Wesport 17
PROPERTY: 30-0017
UNIT: 4
LEASE ID: 0117-FVCC01-01
28. SALE OR CONVEYANCE BY LANDLORD. In the event of a sale or
conveyance of the Premises or any interest therein, by any owner of the
reversion then constituting Landlord, the transferor shall thereby be released
from any further liability upon any of the terms, covenants or conditions
(express or implied) herein contained in favor of Tenant, and in such event,
insofar as such transfer is concerned, Tenant agrees to look solely to the
responsibility of the successor in interest of such transferor in and to the
Complex and this Lease. This Lease shall not be affected by any such sale or
conveyance, and Tenant agrees to attorn to the successor in interest of such
transferor.
29. ATTORNMENT TO LENDER OR THIRD PARTY. In the event the interest of
Landlord in the land and Building in which the Leased Premises are located
(whether such interest of Landlord is a fee title interest or a leasehold
interest) is encumbered by deed of trust, and such interest is acquired by the
lender or any third party through judicial foreclosure or by exercise of a power
of sale at private trustee's foreclosure sale, Tenant hereby agrees to attorn to
the purchaser at any such judicial foreclosure or foreclosure sale and to
recognize such purchaser as the Landlord under this Lease. In the event the lien
of the deed of trust securing the loan from a Lender to Landlord is prior and
paramount to the Lease, this Lease shall nonetheless continue in full force and
effect for the remainder of the unexpired Term hereof, at the same rental herein
reserved and upon all the other terms, conditions and covenants herein
contained.
30. HOLDING OVER. Any holding over by Tenant after expiration or other
termination of the Term of this Lease with the written consent of Landlord
delivered to Tenant shall not constitute a renewal or extension of the Lease or
give Tenant any rights in or to the Leased Premises except as expressly provided
in this Lease. Any holding over after the expiration or other termination of the
Term of this Lease, with the consent of Landlord, shall be construed to be a
tenancy from month to month, on the same terms and conditions herein specified
insofar as applicable except that the monthly Basic Rent shall be increased to
an amount equal to two hundred (200%) percent of the monthly Basic Rent required
during the last month of the Lease term; provided, however, that the monthly
Rent shall be prorated based on the actual number of days in the month for any
partial month of the holding over. Holding over conduct within the meaning of
the Lease and this Paragraph 30 shall also include: (i) the failure by Tenant to
surrender the Leased Premises on the Lease Termination Date in the physical
condition described in Paragraphs 8 ("Acceptance and Surrender of Premises"), 10
("Alterations and Additions") and 11 ("Tenant Maintenance") and/or any Consents
to Modifications/Alterations (if any) for which conduct Tenant shall be subject
to the Hold Over Basic Rent under this Paragraph until the Leased Premises is
restored to the condition required under this Lease or (ii) if Tenant is
responsible for paying to Landlord the cost of the restoration work in lieu of
Tenant completing said restoration, Tenant shall be liable to Landlord, at the
Basic Rent rate for the last month of the Lease Term, for the estimated time it
would take to complete said restoration, regardless of whether or not Landlord
elects to make such restoration to the Leased Premises.
31. CERTIFICATE OF ESTOPPEL. Tenant shall within ten (10) days of
receipt of prior written notice from Landlord execute, acknowledge and deliver
to Landlord an estoppel statement in writing (i) certifying that this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modification and certifying that this Lease, as so modified, is in full
force and effect) and the date to which the Rent and other charges are paid in
advance, if any, and (ii) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder, or specifying
such defaults, if any, are claimed. Any such statement may be conclusively
relied upon by any prospective purchaser or encumbrancer of the Premises.
Tenant's failure to deliver such statement within such time shall be conclusive
upon Tenant that this Lease is in full force and effect, without modification
except as may be represented by Landlord; that there are no uncured defaults in
Landlord's performance, and that not more than one month's Rent has been paid in
advance.
32. CONSTRUCTION CHANGES. It is understood that the description of the
Premises and the location of ductwork, plumbing and other facilities therein are
subject to such minor changes as Landlord or Landlord's architect determines to
be desirable in the course of construction of the Premises, and no such changes
or any changes in plans for any other portions of the Complex shall affect this
Lease or entitle Tenant to any reduction of Rent hereunder or result in any
liability of Landlord to Tenant. Landlord does not guarantee the accuracy of any
drawings supplied to Tenant and verification of the accuracy of such drawings
rests with Tenant.
33. RIGHT OF LANDLORD TO PERFORM. All terms, covenants and conditions
of this Lease to be performed or observed by Tenant shall be performed or
observed by Tenant at Tenant's sole
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cost and expense and without any reduction of rent. If Tenant shall fail to pay
any sum of money, or other Rent, required to be paid by it hereunder and such
failure shall continue for five (5) days after written notice thereof by
Landlord or shall fail to perform any other term of covenant hereunder on its
part to be performed, and such failure shall continue for thirty (30) days after
written notice thereof by Landlord (or such longer grace period as shall be
provided under Paragraph 24), Landlord, without waiving or releasing Tenant from
any obligation of Tenant hereunder, may, but shall not be obliged to, make any
such payment or perform any such other term or covenant on Tenant's part to be
performed. All sums so paid by Landlord and all necessary costs of such
performance by Landlord together with interest thereon at the rate of the prime
rate of interest per annum as quoted by the Bank of America from the date of
such payment or performance by Landlord, shall be paid (and Tenant covenants to
make such payment) to Landlord within five (5) business days after demand by
Landlord, and Landlord shall have (in addition to any other right or remedy of
Landlord) the same rights and remedies in the event of nonpayment by Tenant as
in the case of failure by Tenant in the payment of Rent hereunder.
34. ATTORNEYS' FEES.
A. In the event that Landlord should bring suit for the possession of
the Premises, for the recovery of any sum due under this Lease, or because of
the breach of any provision of this Lease, or for any other relief against
Tenant hereunder, then all costs and expenses, including reasonable attorneys'
fees, incurred by Landlord therein shall be paid by Tenant, which obligation on
the part of Tenant shall be deemed to have accrued on the date of the
commencement of such action and shall be enforceable whether or not the action
is prosecuted to judgment.
B. Should Landlord be named as a defendant in any suit brought against
Tenant in connection with or arising out of Tenant's occupancy hereunder, Tenant
shall pay to Landlord its costs and expenses incurred in such suit, including
reasonable attorney's fees.
35. WAIVER. The waiver by either party of the other party's failure to
perform or observe any term, covenant or condition herein contained to be
performed or observed by such waiving party shall not be deemed to be a waiver
of such term, covenant or condition or of any subsequent failure of the party
failing to perform or observe the same or any other such term, covenant or
condition therein contained, and no custom or practice which may develop between
the parties hereto during the Term hereof shall be deemed a waiver of, or in any
way affect, the right of either party to insist upon performance and observance
by the other party in strict accordance with the terms hereof.
36. NOTICES. All notices, demands, requests, advices or designations
which may be or are required to be given by either party to the other hereunder
shall be in writing. All notices, demands, requests, advices or designations by
Landlord to Tenant shall be sufficiently given, made or delivered if personally
served on Tenant by leaving the same at the Premises or if sent by United States
certified or registered mail, postage prepaid or by a reputable commercial
carrier's same day or overnight service addressed to Tenant at the Premises. All
notices, demands, requests, advices or designations by Tenant to Landlord shall
be sent by United States certified or registered mail, postage prepaid, or by a
reputable commercial carrier's same day or overnight service addressed to
Landlord at its offices at: WESTPORT JOINT VENTURE, 0000 XXXXXXX XXXXXXX XXXX.,
XXXXX 000, XXXXX XXXXX, XX 00000. Each notice, request, demand, advice or
designation referred to in this Paragraph shall be deemed received on the date
of the personal service or receipt or refusal to accept receipt of the mailing
thereof in the manner herein provided, as the case may be. Either party shall
have the right, upon ten (10) days written notice to the other, to change the
address as noted herein; however, Landlord shall send Tenant notices to only one
address of Tenant as identified above.
37. EXAMINATION OF LEASE. Submission of this instrument for examination
or signature by Tenant does not constitute a reservation of or option for a
lease, and this instrument is not effective as a lease or otherwise until its
execution and delivery by both Landlord and Tenant.
38. DEFAULT BY LANDLORD. Landlord shall not be in default unless
Landlord fails to perform obligations required of Landlord within a reasonable
time, but in no event earlier than (30) days after written notice by Tenant to
Landlord and to the holder of any first mortgage or deed of trust covering the
Premises whose name and address shall have heretofore been furnished to Tenant
in writing,
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specifying wherein Landlord has failed to perform such obligations; provided,
however, that if the nature of Landlord's obligations is such that more than
thirty (30) days are required for performance, then Landlord shall not be in
default if Landlord commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion.
39. CORPORATE AUTHORITY. If Tenant is a corporation (or a partnership),
each individual executing this Lease on behalf of said corporation (or
partnership) represents and warrants that he is duly authorized to execute and
deliver this Lease on behalf of said corporation (or partnership) in accordance
with the by-laws of said corporation (or partnership in accordance with the
partnership agreement) and that this Lease is binding upon said corporation (or
partnership) in accordance with its terms. If Tenant is a corporation, Tenant
shall, within thirty (30) days after execution of this Lease, deliver to
Landlord a certified copy of the resolution of the Board of Directors of said
corporation authorizing or ratifying the specific execution of this Lease by the
individual executing said Lease. In lieu of said corporate resolution, Tenant
may provide Landlord with an outside legal opinion stating that the party
executing this Lease on behalf of Tenant is authorized to do so by the Board of
Directors.
40. LIMITATION OF LIABILITY. In consideration of the benefits accruing
hereunder, Tenant and all successors and assigns covenant and agree that, in the
event of any actual or alleged failure, breach or default hereunder by Landlord:
(a) the sole and exclusive remedy shall be against Landlord's
interest in the Premises leased herein;
(b) no partner of Landlord shall be sued or named as a party in
any suit or action (except as may be necessary to secure jurisdiction of the
partnership);
(c) no service of process shall be made against any partner of
Landlord (except as may be necessary to secure jurisdiction of the partnership);
(d) no partner of Landlord shall be required to answer or
otherwise plead to any service of process;
(e) no judgment will be taken against any partner of Landlord;
(f) any judgment taken against any partner of Landlord may be
vacated and set aside at any time without hearing;
(g) no writ of execution will ever be levied against the assets of
any partner of Landlord;
(h) these covenants and agreements are enforceable both by
Landlord and also by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements shall
be applicable to any covenant or agreement either expressly contained in this
Lease or imposed by statute or at common law.
41. SIGNS. No sign, placard, picture, advertisement, name or notice
shall be inscribed, displayed or printed or affixed on or to any part of the
outside of the Building or any exterior windows of the Building without the
written consent of Landlord first had and obtained and Landlord shall have the
right to remove any such sign, placard, picture, advertisement, name or notice
without notice to Tenant and at the expense of Tenant. If Tenant is allowed to
print or affix or in any way place a sign in, on, or about the Premises, upon
expiration or other sooner termination of this Lease, Tenant at Tenant's sole
cost and expense shall both remove such sign and repair all damage in such a
manner as to restore all aspects of the appearance of the Premises to the
condition prior to the placement of said sign.
All approved signs or lettering on outside shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved of by
Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door partition or wall which may appear unsightly from
outside the Premises.
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42. CONSENT. Whenever the consent of one party to the other is required
hereunder, such consent shall not be unreasonably withheld.
43. AUTHORITY TO EXECUTE. The parties executing this Lease Agreement
hereby warrant and represent that they are properly authorized to execute this
Lease Agreement and bind the parties on behalf of whom they execute this Lease
Agreement and to all of the terms, covenants and conditions of this Lease
Agreement as they relate to the respective parties hereto.
44. HAZARDOUS MATERIALS: Landlord and Tenant agree as follows with
respect to the existence or use of "Hazardous Materials" (as defined herein) on,
in, under or about the Premises and real property located beneath said Premises
and the Common Areas of the Complex (hereinafter collectively referred to as the
"Property"):
A. As used herein, the term "Hazardous Materials" shall mean any
material, waste, chemical, mixture or byproduct which is or hereafter is
defined, listed or designated under Environmental Laws (defined below) as a
pollutant, or as a contaminant, or as a toxic or hazardous substance, waste or
material, or any other unwholesome, hazardous, toxic, biohazardous, or
radioactive material, waste, chemical, mixture or byproduct, or which is listed,
regulated or restricted by any Environmental Law (including, without limitation,
petroleum hydrocarbons or any distillates or derivatives or fractions thereof,
polychlorinated biphenyls, or asbestos). As used herein, the term "Environmental
Laws" shall mean any applicable Federal, State of California or local government
law (including common law), statute, regulation, rule, ordinance, permit,
license, order, requirement, agreement, or approval, or any determination,
judgment, directive, or order of any executive or judicial authority at any
level of Federal, State of California or local government (whether now existing
or subsequently adopted or promulgated) relating to pollution or the protection
of the environment, ecology, natural resources, or public health and safety.
B. Tenant shall obtain Landlord's written consent, which may be
withheld in Landlord's discretion, prior to the occurrence of any Tenant's
Hazardous Materials Activities (defined below); provided, however, that
Landlord's consent shall not be required for normal use in compliance with
applicable Environmental Laws of customary household and office supplies (Tenant
shall first provide Landlord with a list of said materials use), such as mild
cleaners, lubricants and copier toner. As used herein, the term "Tenant's
Hazardous Materials Activities" shall mean any and all use, handling,
generation, storage, disposal, treatment, transportation, release, discharge, or
emission of any Hazardous Materials on, in, beneath, to, from, at or about the
Property, in connection with Tenant's use of the Property, or by Tenant or by
any of Tenant's agents, employees, contractors, vendors, invitees, visitors or
its future subtenants or assignees. Tenant agrees that any and all Tenant's
Hazardous Materials Activities shall be conducted in strict, full compliance
with applicable Environmental Laws at Tenant's expense, and shall not result in
any contamination of the Property or the environment. Tenant shall not discharge
any Hazardous Materials in the plumbing, sewer and/or storm drains in the
Premises and/or Complex. Tenant agrees to provide Landlord with prompt written
notice of any spill or release of Hazardous Materials at the Property during the
term of the Lease of which Tenant becomes aware, and further agrees to provide
Landlord with prompt written notice of any violation of Environmental Laws in
connection with Tenant's Hazardous Materials Activities of which Tenant becomes
aware. If Tenant's Hazardous Materials Activities involve Hazardous Materials
other than normal use of customary household and office supplies, Tenant also
agrees at Tenant's expense: (i) to install such Hazardous Materials monitoring,
storage and containment devices as Landlord reasonably deems necessary (Landlord
shall have no obligation to evaluate the need for any such installation or to
require any such installation); (ii) provide Landlord with a written inventory
of such Hazardous Materials, including an update of same each year upon the
anniversary date of the Commencement Date of the Lease ("Anniversary Date"); and
(iii) on each Anniversary Date, to retain a qualified environmental consultant,
acceptable to Landlord, to evaluate whether Tenant is in compliance with all
applicable Environmental Laws with respect to Tenant's Hazardous Materials
Activities. Tenant, at its expense, shall submit to Landlord a report from such
environmental consultant which discusses the environmental consultant's findings
within two (2) months of each Anniversary Date. Tenant, at its expense, shall
promptly undertake and complete any and all steps necessary, and in full
compliance with applicable Environmental Laws, to fully correct any and all
problems or deficiencies identified by the environmental consultant, and
promptly provide Landlord with documentation of all such corrections.
C. Prior to termination or expiration of the Lease, Tenant, at
its expense, shall (i) properly remove from the Property all Hazardous Materials
which come to be located at the Property in connection
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with Tenant's Hazardous Materials Activities, and (ii) fully comply with and
complete all facility closure requirements of applicable Environmental Laws
regarding Tenant's Hazardous Materials Activities, including but not limited to
(x) properly restoring and repairing the Property to the extent damaged by such
closure activities, and (y) obtaining from the local Fire Department or other
appropriate governmental authority with jurisdiction a written concurrence that
closure has been completed in compliance with applicable Environmental Laws.
Tenant shall promptly provide Landlord with copies of any claims, notices, work
plans, data and reports prepared, received or submitted in connection with any
such closure activities.
D. If Landlord, in its sole discretion, believes that the
Property has become contaminated as a result of Tenant's Hazardous Materials
Activities, Landlord in addition to any other rights it may have under this
Lease or under Environmental Laws or other laws, may enter upon the Property and
conduct inspection, sampling and analysis, including but not limited to
obtaining and analyzing samples of soil and groundwater, for the purpose of
determining the nature and extent of such contamination. Tenant shall promptly
reimburse Landlord for the costs of such an investigation, including but not
limited to reasonable attorneys' fees Landlord incurs with respect to such
investigation, that discloses Hazardous Materials contamination for which Tenant
is liable under this Lease. Except as may be required of Tenant by applicable
Environmental Laws, Tenant shall not perform any sampling, testing, or drilling
to identify the presence of any Hazardous Materials at the Property, without
Landlord's prior written consent which may be withheld in Landlord's discretion.
Tenant shall promptly provide Landlord with copies of any claims, notices, work
plans, data and reports prepared, received or submitted in connection with any
sampling, testing or drilling performed pursuant to the preceding sentence.
E. Tenant shall indemnify, defend (with legal counsel acceptable
to Landlord, whose consent shall not unreasonably be withheld) and hold harmless
Landlord, its employees, assigns, successors, successors-in-interest, agents and
representatives from and against any and all claims (including but not limited
to third party claims from a private party or a government authority),
liabilities, obligations, losses, causes of action, demands, governmental
proceedings or directives, fines, penalties, expenses, costs (including but not
limited to reasonable attorneys', consultants' and other experts' fees and
costs), and damages, which arise from or relate to: (i) Tenant's Hazardous
Materials Activities; (ii) any Hazardous Materials contamination caused by
Tenant prior to the Commencement Date of the Lease; or (iii) the breach of any
obligation of Tenant under this Paragraph 44 (collectively, "Tenant's
Environmental Indemnification"). Tenant's Environmental Indemnification shall
include but is not limited to the obligation to promptly and fully reimburse
Landlord for losses in or reductions to rental income, and diminution in fair
market value of the Property. Tenant's Environmental Indemnification shall
further include but is not limited to the obligation to diligently and properly
implement to completion, at Tenant's expense, any and all environmental
investigation, removal, remediation, monitoring, reporting, closure activities,
or other environmental response action (collectively, "Response Actions").
Tenant shall promptly provide Landlord with copies of any claims, notices, work
plans, data and reports prepared, received or submitted in connection with any
Response Actions.
F. Landlord hereby informs Tenant, and Tenant hereby
acknowledges, that the Premises and adjacent properties overlie a former solid
waste landfill site commonly known as the Westport Landfill ("Former Landfill").
Landlord further informs Tenant, and Tenant hereby acknowledges, that (i) prior
testing has detected the presence of low levels of certain volatile and
semi-volatile organic compounds and other contaminants in the groundwater, in
the leachate from the landfilled solid waste, and/or in certain surface waters
of the Property, as more fully described in Section 2.3.2 of the report entitled
"Revised Discharge Monitoring Plan, Westport Landfill Site, Redwood City,
California" prepared by Geomatrix Consultants, dated May 1996 ("Discharge
Plan"), (ii) methane gas is or may be generated by the landfilled solid waste
(item "i" immediately preceding and this item "ii" are hereafter collectively
referred to as the "Landfill Contamination"), and (iii) the Premises and the
Former Landfill are subject to the California Regional Water Quality Control
Board's ("Regional Board") Waste Discharge Requirements Order No. 94-181 (the
"Order"). The Order is attached hereto as Exhibit C. As evidenced by their
initials set forth immediately below, Tenant acknowledges that Landlord has
provided Tenant with copies of the environmental reports listed on Exhibit D,
and Tenant acknowledges that Tenant and Tenant's experts (if any) have had ample
opportunity to review such reports and that Tenant has satisfied itself as to
the environmental conditions of the Property and the suitability of such
conditions for Tenant's intended use of the Property.
Initial: ____________ Initial: _____________
Tenant Landlord
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G. Landlord shall indemnify, defend, and hold harmless Tenant
against any and all claims asserted by third parties (excluding any agents,
employees, contractors, vendors, invitees, visitors, future subtenants and
assignees of Tenant, and excluding any other parties related to Tenant),
including all liabilities, judgments, damages, suits, orders, government
directives, costs and expenses in connection with such claims, which arise from
(i) the Landfill Contamination, or (ii) the Order, as may be amended
("Landlord's Environmental Indemnity"); provided however that Landlord's
Environmental Indemnity shall be subject to the following limitations and
conditions:
(1) Landlord's Environmental Indemnity shall not apply to any
economic or consequential damages suffered by Tenant,
including but not limited to loss of business or profits.
(2) Landlord's Environmental Indemnity shall not apply, without
limitation, to any releases caused by Tenant's Hazardous
Materials Activities.
(3) Tenant acknowledges that Landlord must comply with the Order,
as may be amended, and with directives of government
authorities including the Regional Board, with respect to the
Contamination and the Former Landfill. Tenant further
acknowledges that groundwater monitoring xxxxx, methane
recovery xxxxx and equipment, and other environmental control
devices are located on and about the Premises and may be
modified or added to during the term of the Lease
(collectively, "Environmental Equipment"), and that
environmental investigation, monitoring, closure and
post-closure activities (collectively, "Environmental
Activities") will be performed on the Premises during the term
of the Lease. Tenant shall allow Landlord, and any other party
named as a discharger under the Order, as may be amended, and
their respective agents, consultants and contractors, and
agents of governmental environmental authorities with
jurisdiction ("Government Representatives") to enter the
Premises to access the Environmental Equipment and to perform
Environmental Activities during the term of the Lease,
provided that Tenant's use and occupancy of the Premises shall
not unreasonably be disturbed.
(4) Tenant and Landlord shall reasonably cooperate with each other
regarding any Environmental Activities to be performed, and
regarding any Environmental Equipment to be installed,
maintained, or removed on the Premises during the term of the
Lease.
(5) Tenant shall be responsible at its expense for repairing any
Environmental Equipment damaged due to the negligence of
Tenant or Tenant's agents, employees, contractors, vendors,
invitees, visitors, future subtenants or assignees (such terms
"invitees" and "visitors" as used in this Paragraph 44 shall
not include Landlord or any other party named as a discharger
under the Order as may be amended, or any of their respective
agents, consultants or contractors, or any Government
Representatives).
It is agreed that the Tenant's responsibilities related to Hazardous Materials
will survive the expiration or termination of this Lease and that Landlord may
obtain specific performance of Tenant's responsibilities under this Paragraph
44.
45. BROKERS. Tenant represents and warrants that it has not dealt with
any real estate brokers, agents, or finders in connection with the original Term
of this Lease, and knows of no real estate broker, agent or finder who is
entitled to a commission in connection with this Lease ("Lease Commission").
Tenant agrees to defend, protect, indemnify and hold Landlord harmless from and
against all claims for brokerage commissions, finder's fees, and other
compensation made by any broker, agent, or finder as consequence of the Tenant's
actions or dealings with such broker, agent or finder. The parties hereto
acknowledge that Landlord will not pay a Lease Commission to any broker related
to the original Term of this Lease, or in the event this Lease is extended or
the square footage leased hereunder is increased for any reason whatsoever.
46. RIGHT TO USE FIRST FLOOR SHIPPING & RECEIVING AREA. Subject to the
terms and conditions stated herein, from the Lease Commencement Date through
April 30, 2004 ("Phase I Period"), Tenant shall have the right to use the Dock
Area as shown in Blue on Exhibit B attached hereto ("Dock Area"). Said Dock Area
consists of approximately 3,532+ square feet located on the first floor of the
Building, which square footage includes Tenant's Proportionate Share of the
Common Area related to
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the Dock Area. Tenant's Basic Rent as scheduled in Lease Paragraph 4 ("Rent")
does not include a Basic Rent charge for said Dock Area, therefore Tenant's
Basic Rent shall not be reduced at the expiration of the Phase I Period. However
Tenant shall be responsible during the Phase I Period for paying all Additional
Rent costs related to the Dock Area. In the event Landlord leases any or all of
the remaining space in the Building to a third party tenant or tenants who
desire to use the Dock Area during the Phase I Period, or thereafter, Tenant
agrees and understands that its Lease may be amended and all or part of said
Dock Area shall become a Common Area to be shared with any other third party
tenant or tenants. In the event Landlord converts said Dock Area into Common
Area, Landlord will construct any necessary demising walls, at Landlord's sole
cost and expense. In the event Landlord elects to convert any or all said Dock
Area into Common Area, this Lease shall be further amended to reflect the
reduction in the Leased Premises due to the conversion of the Dock Area into
Common Area. At the end of Phase I Period, Tenant shall be responsible for
surrendering the Dock Area as required under Lease Paragraph 8 ("Acceptance and
Surrender of Premises").
47. EARLY ENTRY: Upon receipt of written notice from Landlord that the
Premises is available for Tenant's entry, Tenant and its agents and contractors
shall be permitted to enter the Premises prior to the Commencement Date for the
purpose of installing at Tenant's sole cost and expense, Tenant's trade fixtures
and equipment, telephone equipment, security systems and cabling for computers
("Tenant's Work"). Such entry shall be subject to all of the terms and
conditions of this Lease, except that Tenant shall not be required to pay any
Rent on account thereof. Any entry or installation work by Tenant and its agents
in the Premises pursuant to this Paragraph 47 shall (i) be undertaken at
Tenant's sole risk, and (ii) not be deemed occupancy or possession of the
Premises for purposes of the Lease. Tenant shall indemnify, defend, and hold
Landlord harmless from any and all loss, damage, liability, expense (including
reasonable attorney's fees), claim or demand of whatsoever character, direct or
consequential, including, but without limiting thereby the generality of the
foregoing, injury to or death of persons and damage to or loss of property
arising out of the exercise by Tenant of any early entry right granted
hereunder. In the event Tenant's Work in said Premises delays the completion of
the interior improvements to be provided by Landlord, if any, or in the event
Tenant has not completed Tenant's Work by the scheduled Commencement Date, it is
agreed between the parties that this Lease will commence on the scheduled
Commencement Date of May 1, 2003 regardless of the construction status of said
interior improvements completed or to be completed by Tenant or Landlord, as the
case may be, unless the parties agree in writing to delay the Lease Commencement
Date.
48. MISCELLANEOUS AND GENERAL PROVISIONS.
A. Use of Building Name. Tenant shall not, without the written
consent of Landlord, use the name of the Building for any purpose other than as
the address of the business conducted by Tenant in the Premises.
B. Premises Address. It is understood that (i) the current
address for the Premises is shown on page 1 of this Lease, and that (ii) the
address for the Premises is subject to change at any time by the City in which
the Premises are located (the "City"). In the event the address assigned to the
Premises is changed by the City, this Lease shall thereafter be amended to
reflect the assigned address for the Premises leased hereunder and Landlord
shall not be liable to Tenant for any costs or expenses incurred by Tenant as a
result of said address change.
C. Choice of Law/Venue; Severability. This Lease shall in all
respects be governed by and construed in accordance with the laws of the County
of Santa Xxxxx in the State of California and the venue shall be in Santa Xxxxx
County. If any provisions of this Lease shall be invalid, unenforceable, or
ineffective for any reason whatsoever, all other provisions hereof shall be and
remain in full force and effect.
D. Definition of Terms. The term "Premises" includes the space
leased hereby and any improvements now or hereafter installed therein or
attached thereto. The term "Landlord" or any pronoun used in place thereof
includes the plural as well as the singular and the successors and assigns of
Landlord. The term "Tenant" or any pronoun used in place thereof includes the
plural as well as the singular and individuals, firms, associations,
partnerships and corporations, and their and each of their respective heirs,
executors, administrators, successors and permitted assigns, according to the
context hereof, and the provisions of this Lease shall inure to the benefit of
and bind such heirs, executors, administrators, successors and permitted
assigns.
Initial:________
Multi Tenant/Complex Page 25 of 27
BUILDING: Wesport 17
PROPERTY: 30-0017
UNIT: 4
LEASE ID: 0117-FVCC01-01
The term "person" includes the plural as well as the singular and
individuals, firms, associations, partnerships and corporations. Words used in
any gender include other genders. If there be more than one Tenant the
obligations of Tenant hereunder are joint and several. The paragraph headings of
this Lease are for convenience of reference only and shall have no effect upon
the construction or interpretation of any provisions hereof.
E. Time Of Essence. Time is of the essence of this Lease and of
each and all of its provisions.
F. Quitclaim. At the expiration or earlier termination of this
Lease, Tenant shall execute, acknowledge and deliver to Landlord, within ten
(10) days after written demand from Landlord to Tenant, any quitclaim deed or
other document required by any reputable title company, licensed to operate in
the State of California, to remove the cloud or encumbrance created by this
Lease from the real property of which Tenant's Premises are a part.
G. Incorporation of Prior Agreements; Amendments. This instrument
along with any exhibits and attachments hereto constitutes the entire agreement
between Landlord and Tenant relative to the Premises and this agreement and the
exhibits and attachments may be altered, amended or revoked only by an
instrument in writing signed by both Landlord and Tenant. Landlord and Tenant
agree hereby that all prior or contemporaneous oral agreements between and among
themselves and their agents or representatives relative to the leasing of the
Premises are merged in or revoked by this agreement.
H. Recording. Neither Landlord nor Tenant shall record this Lease
or a short form memorandum hereof without the consent of the other.
I. Amendments for Financing. Tenant further agrees to execute any
reasonable amendments required by a lender to enable Landlord to obtain
financing, so long as Tenant's rights hereunder are not substantially affected.
J. Clauses, Plats and Riders. Clauses, plats and riders, if any,
signed by Landlord and Tenant and endorsed on or affixed to this Lease are a
part hereof.
K. Diminution of Light, Air or View. Tenant covenants and agrees
that no diminution or shutting off of light, air or view by any structure which
may be hereafter erected (whether or not by Landlord) shall in any way affect
this Lease, entitle Tenant to any reduction of Rent hereunder or result in any
liability of Landlord to Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered
this Lease as of the day and year last written below.
LANDLORD: TENANT:
WESTPORT JOINT VENTURE FIRST VIRTUAL COMMUNICATIONS, INC.,
a California joint venture a Delaware corporation
XXXX XXXXXXXXX SURVIVOR'S TRUST By /s/ Xxxxxx Xxxx
--------------------------------
Xxxxxx Xxxx
________________________________
By /s/ Xxxx Xxxxxxxxx Print or Type Name/Title
---------------------
Xxxx Xxxxxxxxx, Trustee
Date: March 10, 2003 Date: March 10, 2003
------------------- ----------------------------
XXXXX PRIVATE INVESTMENT
COMPANY-WP, L.P.,
a California limited partnership
Initial:________
Multi Tenant/Complex Page 26 of 27
BUILDING: Wesport 17
PROPERTY: 30-0017
UNIT: 4
LEASE ID: 0117-FVCC01-01
By /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Trustee of the
Xxxxxxx X. Xxxxx Separate Property
Trust dated 7/20/77, as its General
Partner
Date: March 10, 2003
XXXXX PUBLIC INVESTMENT
COMPANY-WP, L.P.,
a California limited partnership
By /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Trustee of the
Xxxxxxx X. Xxxxx Separate Property
Trust dated 7/20/77, as its General
Partner
Date: March 10, 2003
Initial:________
Multi Tenant/Complex Page 27 of 27
